Adle v. Me. State Police Dep't

• Decision Date: 18 August 2017
• Docket Number: Docket No. 1:15–cv–458–NT
• Parties: Melissa A. ADLE, Personal Representative of the Estate of Shad I. Gerken, Plaintiff, v. MAINE State POLICE DEPARTMENT, et al., Defendants.
• Court: U.S. District Court — District of Maine

279 F.Supp.3d 337

Melissa A. ADLE, Personal Representative of the Estate of Shad I. Gerken, Plaintiff,
v.
MAINE State POLICE DEPARTMENT, et al., Defendants.

Docket No. 1:15–cv–458–NT

United States District Court, D. Maine.

Signed August 18, 2017
Filed September 6, 2017

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Brett D. Baber, Lanham, Blackwell & Baber, P.A., Bangor, ME, Lawrence A. Vogelman, Nixon, Vogelman, Barry, Slawsky & Simoneau, PA, Manchester, NH, for Plaintiff.

Jonathan R. Bolton, Christopher C. Taub, Office of the Attorney General, Augusta, ME, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Nancy Torresen, United States Chief District Judge

The Plaintiff, Melissa Adle, brings suit as the personal representative of the estate of Shad Gerken, asserting federal and state violations arising from the shooting of Mr. Gerken by the Maine State Police. The remaining¹ Defendants—the Maine State Police ("MSP "), Sargent Donald Shead, Sargent Nicholas Grass, and Detective Greg Mitchell—move for summary judgment on the Plaintiff's excessive force and disability discrimination claims, as well as the analogous claims under the Maine Civil

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Rights Act and the Maine Human Rights Act. Defs.' Mot. for Summ. J. (ECF No. 55). The individual Defendants contend that they are entitled to qualified immunity, and the MSP contends it did not discriminate against Mr. Gerken on account of his mental disability. For the following reasons, the motion is GRANTED.

BACKGROUND

I. Shad Gerken's Initial Encounter with Law Enforcement

On September 27, 2014, in Chester, Maine, a caller notified the Penobscot County Sherriff's Office ("PCSO ") at approximately 10:00 a.m. that a man, later identified as Shad Gerken, was walking on the Woodville Road, shouting at passing traffic, and carrying a knife. Statement of Material Facts ¶ 1 ("SMF ") (ECF No. 56–1).² From a later report, the PCSO learned that Mr. Gerken also told an eight-year-old child who was retrieving mail to stop looking at him or he would kill her. SMF ¶ 1–3.

Mr. Gerken was 34 years old, stood five feet nine inches tall, weighed 200 pounds, and was muscular and capable of quick movement. SMF ¶¶ 13, 48. The knife he was carrying measured 11 inches, with a six inch blade. SMF ¶ 2. Throughout the ensuing encounter, Mr. Gerken was acutely psychotic, confused, unable to appreciate that his life was in danger, and unable to comply with police directives. SMF ¶ 246.

An officer from the PCSO and Game Warden Sargent Ronald Dunham were the first to respond. SMF ¶ 4. When the officers ordered Mr. Gerken to drop the knife, he fled into the woods. SMF ¶¶ 5–6, 257. The remainder of the encounter took place in woods thick with small and medium-sized trees and underbrush. Ex. L, Photo 9946. (ECF No. 66–6).

The officers pursued Mr. Gerken into the woods, and during the chase, Sgt. Dunham hit Mr. Gerken repeatedly with pepper spray in the face, to no observable effect. SMF ¶¶ 6–7. Mr. Gerken ignored the first responders' repeated commands to drop the knife. SMF ¶ 9.

At one point, Sgt. Dunham pushed Mr. Gerken into a tree and down to one knee. SMF ¶¶ 257–59. Sgt. Dunham grabbed the back of Mr. Gerken's blade with his left hand and attempted to twist the knife free of Mr. Gerken's grip. SMF ¶¶ 257–58. During this struggle, which lasted several minutes, Sgt. Dunham momentarily released his hold on the knife and punched Mr. Gerken on the right side of his face. SMF ¶¶ 263, 266. Sgt. Dunham sustained superficial cuts to his hand. SMF ¶ 261. Mr. Gerken also had blood on his hands, and his right eye eventually became swollen shut. SMF ¶¶ 265, 267. Mr. Gerken fell to the ground at the base of the tree. SMF ¶ 268. The first responders threatened to shoot Mr. Gerken if he stood. SMF ¶ 268. The time was approximately 10:50 a.m. SMF ¶ 392.

A Lincoln police officer arrived on the scene and deployed her Taser on Mr.

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Gerken four times as Sgt. Dunham alternatingly hit Mr. Gerken with pepper spray. SMF ¶¶ 10–12. At that point, Mr. Gerken was lying on the ground on his back, and he still did not drop his knife. SMF ¶¶ 11–12. The three officers formed a semi-circle perimeter around Mr. Gerken, standing approximately 6 feet from where he lay. SMF ¶ 269.

The fourth officer to arrive on the scene, MSP Trooper Thomas Fiske, determined that the six foot perimeter established by the first responders was too close, and he told Mr. Gerken that the officers would stand back. SMF ¶ 270. From a greater distance, Tpr. Fiske attempted to communicate with Mr. Gerken, who was mostly silent and non-responsive. SMF ¶¶ 21–22.

II. Maine State Police Crisis Negotiation and Tactical Teams Arrive

The MSP crisis negotiation team, comprised of officers trained to communicate with individuals who have threatened or inflicted serious injury or death to themselves or others, responded along with the MSP tactical team, composed of officers specially trained to respond to high-risk incidents. SMF ¶¶ 15–16, 25. Under MSP policy, the tactical team provides protection for the crisis negotiation team when it is deployed. SMF ¶¶ 26, 49.

Sargent Carleton Small was the first member of the crisis negotiation team to arrive on the scene at approximately 12:15 p.m. See SMF ¶ 19. He concluded that Tpr. Fiske was speaking in "an appropriately calm voice"³ and that Tpr. Fiske should continue his efforts rather than have Sgt. Small take over right away. SMF ¶¶ 190–91.

Corporal John Madore, the commander of the MSP crisis negotiation team, arrived on the scene at 12:45 p.m. SMF ¶ 19. Cpl. Madore coordinated with the PCSO to obtain an arrest warrant for Mr. Gerken on charges of criminal threatening with a dangerous weapon and aggravated assault based, respectively, on his statement to the eight-year-old child and his struggle over the knife with the game warden. SMF ¶¶ 20, 143. Cpl. Madore also learned from a deputy sheriff familiar with the family that Mr. Gerken's wife and children had moved out earlier that summer because Mr. Gerken was experiencing homicidal ideations. SMF ¶ 24.

Tactical team commander Sgt. Nicholas Grass arrived on the scene at 2:15 p.m. SMF ¶ 272. Eventually seven additional officers from the tactical team arrived—Sgt. Shead, Det. Mitchell, Sgt. Dalton, Sgt. Stetson, Tpr. Roy, Sgt. Michaud, and Sgt. Hamilton. SMF ¶¶ 32–37, 272. All of the tactical team members knew that Mr. Gerken was experiencing an acute mental health crisis. SMF ¶ 249. The individual Defendants—Sgt. Grass, Det. Mitchell, and Sgt. Shead—understood that Mr. Gerken was armed with a knife, that Sgt. Dunham had received a minor cut trying to disarm Mr. Gerken, and that pepper spray and a Taser had been used by the first responders without success.⁴ SMF

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¶¶ 192–94. Sgt. Grass was informed that Mr. Gerken was believed to be off his medication and that he was a survivalist. SMF ¶ 192.

The tactical team formed a semi-circle perimeter around Mr. Gerken, replacing the first responders. SMF ¶ 43. Using a clock face to help orient the reader,⁵ with Mr. Gerken at the center of the clock, tactical team members took the following approximate positions:

• Sgt. Michaud at 7:00;

• Sgt. Grass at 6:30;

• Tpr. Roy at 6:00;

• The negotiators—Cpl. Madore, Sgt. Small and Tpr. Fiske—and Sgt. Stetson at 5:30;

• Sgt. Dalton and his K–9 at 4:30; and

• Sgt. Shead and Det. Mitchell at 3:00.

Pl.'s App'x. Ex. A ("Forensic Map ") (ECF No. 65–14).

There is disagreement as to how far away the police were from Mr. Gerken throughout the standoff, and the estimates of the officers vary between 20 feet and 25 five yards.⁶ Judging from the MSP forensic map, which the Plaintiff adopted as a demonstrative exhibit, the officers were not exactly equidistant to Mr. Gerken and the different police officers were between 20 and 40 feet away. Forensic Map.

To maintain good sight lines on Mr. Gerken through the trees and brush, the perimeter established by the tactical team was closer to Mr. Gerken than Sgt. Grass preferred for officer safety. SMF ¶ 42. The semi-circle shape of the perimeter was a precaution against crossfire in the event that Mr. Gerken attacked one of the officers, but it left open a wide escape path should Mr. Gerken try to flee. SMF ¶¶ 41, 44.⁷

As a precaution, officers had closed the road near the scene to thru traffic and established an outer checkpoint to keep the public from entering the scene. SMF ¶¶ 290–93. No houses were visible in the immediate vicinity, though some were "walking distance" away. SMF ¶ 292.

Sgt. Grass, Sgt. Shead, Det. Mitchell, as well as three other members of the tactical team were each armed with H & K 416D semi-automatic rifles, [redacted]. SMF ¶¶ 275–76. The tactical team also wore

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camouflage and ballistic vests and helmets [redacted]. SMF ¶¶ 46–47, 365. [redacted]. SMF ¶¶ 47, 280. The tactical team also had ballistic shields "available for use," but the...