Conlogue v. Hamilton

• Decision Date: 11 October 2018
• Docket Number: No. 17-2210,17-2210
• Citation: 906 F.3d 150
• Parties: Danarae CONLOGUE, as personal representative of the Estate of Lewis N. Conlogue, Plaintiff, Appellant, v. Scott HAMILTON, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

906 F.3d 150

Danarae CONLOGUE, as personal representative of the Estate of Lewis N. Conlogue, Plaintiff, Appellant,

v.Scott HAMILTON, Defendant, Appellee.

No. 17-2210

United States Court of Appeals, First Circuit.

October 11, 2018

Hunter J. Tzovarras, Bangor, ME, for appellant.

Jonathan R. Bolton, Assistant Attorney General, with whom Janet T. Mills, Attorney General, and Cathy Roberts, Assistant Attorney General, were on brief, for appellee.

Before Thompson, Selya, and Lipez, Circuit Judges.

SELYA, Circuit Judge.

This tragic case involves the fatal shooting of an armed civilian by a state trooper following a prolonged standoff. The appeal turns on an application of the doctrine of qualified immunity—a doctrine that protects public officials (including police officers) from civil liability while acting under color of state law, save only for officials who act incompetently or in disregard of clearly established legal principles. See Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The court below painstakingly catalogued the relevant facts, determined in a thoughtful rescript that the defendant was entitled to qualified immunity, and entered summary judgment accordingly. See Conlogue v. Hamilton, No. 1:16-cv-296, 2017 WL 5339895, at *2-8 (D. Me. Nov. 13, 2017). After careful consideration, we affirm.

I. BACKGROUND

When reviewing the entry of summary judgment, our task demands that we view the facts in the light most favorable to the non-movant (here, the plaintiff). See Savard v. Rhode Island, 338 F.3d 23, 26 (1st Cir. 2003) (en banc). Here, however, the raw facts are largely undisputed. We set them forth below, urging the reader who hungers for more exegetic detail to consult the district court's rescript.

This case has its genesis in a set of facts that played out on August 3, 2014, in front of a deserted restaurant in the bucolic town of LaGrange, Maine. At 3:41 p.m., DanaRae Conlogue called 911 to report that her husband, Lewis N. Conlogue, was threatening suicide. She related that he had gotten out of their parked vehicle, put a gun to his head, and warned her to avert her eyes. Officers from the Penobscot County Sheriff's Office and the Maine State Police responded quickly to the scene. They took Mrs. Conlogue to a place of safety, established a command post, secured the perimeter, and assigned officers to strategically located positions.

Thomas Fiske, a Maine state trooper, arrived at around 4:17 p.m. and positioned himself with two other troopers on the lawn of a residence across the street from the restaurant (some 200 feet away). Defendant-appellee Scott Hamilton, a sergeant and a member of the state police's tactical team, arrived shortly thereafter. Hamilton had been specially trained in the use of deadly force in high-risk situations. From his vantage point, he could not see the other troopers but learned of their position from communications broadcast over a police-operated radio.¹ Hamilton also learned that Conlogue was brandishing a semi-automatic handgun—a fact that helped Hamilton to calibrate the level of threat posed.

For the first hour and twenty minutes, Conlogue remained mostly stationary, sitting on a rock with his gun pointed at his head. At approximately 5:02 p.m., Fiske reported that Conlogue had stood up and begun pacing around lethargically. In response to this report, Hamilton changed his position so that he could more clearly observe Conlogue through the magnifying scope attached to his rifle. Fiske then reported over the radio that Conlogue appeared to be assessing the scene: he was looking 360 degrees around his position and (according to Fiske) seemed to be gaining strength and momentum. At this juncture, another officer—William Sheehan of the Sheriff's Office—initiated direct communication with Conlogue.

Sergeant Sheehan, using a loudspeaker, repeatedly asked Conlogue to put down his weapon, assuring him that the officers were worried about him and were there to help. When Conlogue responded by yelling obscenities, the officers knew that Conlogue could hear Sheehan's words. Even so, Sergeant Sheehan's warnings seemed only to escalate the tension. Conlogue went to his car, retrieved a knife, placed it in his back pocket, moved back toward the troopers, shaped his fingers like a gun, and pointed the simulated gun at Fiske and the other troopers.

Next, Conlogue approached the road that separated him from the troopers. He paused to draw a line in the dirt, and Sheehan assured him that no officers would cross that line. Conlogue then moved closer to the troopers and drew another line. Fiske became concerned for his own safety—a fear that he communicated to the other officers over the radio.

Despite continued warnings to put down his weapon and cooperate with the police, Conlogue refused to comply. He displayed a fully loaded magazine, placed the magazine into his gun, and pointed it at a forty-five degree angle over the heads of Fiske and the two other troopers. This action elicited a spate of warnings from Sheehan. Undeterred, Conlogue alternated between pointing the gun at his own head and pointing it in the direction of the troopers (at an angle of roughly forty-five degrees).

When Conlogue flexed his wrist and extended the gun in front of his body, Fiske immediately related over the radio that the gun was "[a]bout forty-five degrees ... over our heads" and added that "I'm not comfortable." To Hamilton, Fiske's tone conveyed fear.² Sheehan spoke forcefully to Conlogue, demanding that "[y]ou need to put the gun down. You need to put the gun down right now!" Hamilton neither saw nor heard anything indicating that Conlogue was of a mind to comply. After waiting eleven seconds, Hamilton fired a single shot that struck and killed Conlogue.

We fast-forward to May of 2016 when Mrs. Conlogue, in her capacity as personal representative of her husband's estate, brought suit in a Maine state court. Her complaint asserted claims for excessive force under 42 U.S.C. § 1983 and the Fourth Amendment, together with several causes of action under state law. Citing the existence of a federal question, Hamilton removed the suit to the federal district court. See 28 U.S.C. §§ 1331, 1441(a).

The parties engaged in pretrial discovery. Although the complaint originally named other defendants in addition to Hamilton, those defendants were dropped along the way. Following the completion of discovery, the parties (including Hamilton, as the sole remaining defendant) filed cross-motions for summary judgment. Hamilton's motion raised, inter alia, a qualified immunity defense. After marshaling the facts and carefully surveying the applicable case law, the district court found no precedent suggesting "that an officer's use of deadly force is objectively unreasonable when a person points a loaded gun at a forty-five degree angle over the heads of other officers after being warned repeatedly to drop the gun." Conlogue, 2017 WL 5339895, at *11. In addition, the court concluded that Hamilton "reasonably determined that Conlogue posed an immediate threat to the troopers when he pointed his gun over their heads, and that no other remedial action was feasible given the tense, rapidly evolving situation and the various failed attempts at de-escalation." Id. at *12. Consequently, the court held that Hamilton was entitled to qualified immunity on the federal claims and subsequently extended that reasoning to justify the dismissal of the state-law causes of action as well. See id. Having laid this foundation, the court granted Hamilton's motion for summary judgment and denied the plaintiff's cross-motion. See id. at *13. This timely appeal ensued.

II. ANALYSIS

We review an order granting or denying summary judgment de novo. See McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017), cert. denied, ––– U.S. ––––, 138 S.Ct. 1311, 200 L.Ed.2d 475 (2018). The pendency of cross-motions for summary judgment does not alter the standard of review. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). Because the plaintiff challenges only the grant of summary judgment on her federal claims, we limit our analysis accordingly.

Qualified immunity inoculates government officials from civil liability based on their discretionary actions and decisions which, although injurious, "do[ ] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). As we have acknowledged, "[t]he doctrine's prophylactic sweep is broad." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017). We view claims of qualified immunity through the lens of objective reasonableness. So viewed, only those officials who should have known that their conduct was objectively unreasonable are beyond the shield of qualified immunity and, thus, are vulnerable to the sword of liability. See id.

The immunity afforded by this doctrine is particularly important for police officers in order not to "unduly inhibit the assiduous discharge of their dut[y]" to protect the community at large.

Savard, 338 F.3d at 27. In such cases, the reasonableness calculus "must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary." Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

Where, as here, a defendant invokes the defense of qualified immunity, the necessary analysis is two-pronged. See McKenney, 873 F.3d at 81. The court must determine whether the defendant violated the plaintiff's constitutional rights. See id. It also must determine whether the allegedly abridged right was "clearly established" at the time of the defendant's claimed misconduct. Id. Although this description implies a set sequence, these prongs "need not be taken in order." Alfano, 847 F.3d at 75 ...