Isom v. Town of Warren, Rhode Island, 03-1765.

• Citation: 360 F.3d 7
• Decision Date: 25 February 2004
• Docket Number: No. 03-1765.,03-1765.
• Parties: Jean ISOM, as a beneficiary, best friend, mother, natural guardian and representative of the estate of Robert Mark Isom, and in her individual capacity, Plaintiff, Appellant, v. TOWN OF WARREN, RHODE ISLAND, Police Chief Thomas B. Perrotto, Jr., Police Officer Sam Green, Police Officer Raymond J. Ouellette, Police Detective Michael Patrick Clancy, Police Captain Ely Barkett, Police Officer Joseph R. Loiselle, Defendants, Appellees, Dr. Elizabeth Laposta, Rhode Island Medical Examiner, Kevin Hopkins, Detective, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

360 F.3d 7

Jean ISOM, as a beneficiary, best friend, mother, natural guardian and representative of the estate of Robert Mark Isom, and in her individual capacity, Plaintiff, Appellant, v. TOWN OF WARREN, RHODE ISLAND, Police Chief Thomas B. Perrotto, Jr., Police Officer Sam Green, Police Officer Raymond J. Ouellette, Police Detective Michael Patrick Clancy, Police Captain Ely Barkett, Police Officer Joseph R. Loiselle, Defendants, Appellees Dr. Elizabeth Laposta, Rhode Island Medical Examiner, Kevin Hopkins, Detective, Defendants.

No. 03-1765.

United States Court of Appeals, First Circuit.

Heard February 3, 2004.

Decided February 25, 2004.

Edward P. Manning, Jr., for appellant.

Anthony F. DeMarco, with whom Reynolds, DeMarco & Boland, Ltd. was on brief, for appellees.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

This case arises out of an incident that was tragic for everyone involved. A few moments after saying he wanted to die, Robert Mark Isom, age 33 and emotionally disturbed, was shot to death by police officers of the Town of Warren, Rhode Island on the morning of March 7, 1997. Isom had entered a liquor store with an axe and briefly held hostage two employees before releasing one and inadvertently allowing the other to escape. When officers entered the store, Isom ignored their continuous requests to put down the axe; fearing for the officers' safety, one officer attempted to subdue Isom with pepper spray. Isom responded not by dropping to the ground, as the officer had hoped, but by raising the axe and running toward two officers. Those officers then shot Isom to death.

His mother, Jean Isom, sued the town, its police chief, several officers, and the medical examiner in federal district court, asserting claims of excessive use of force under 42 U.S.C. § 1983 and state law claims for wrongful death under R.I. Gen. Laws § 10-7-1. At the heart of the case is the claim that the decision to use the pepper spray was a colossal misjudgment, resulting in a needless and wrongful death.

Although the defendants moved for summary judgment on the basis of qualified immunity, for reasons not apparent on the record, the district court never decided the motion. Rather, the case went to trial on April 21, 2003, and the jury heard three days of evidence.

At the close of the plaintiff's case, the defendants made a motion for judgment as a matter of law under Fed.R.Civ.P. 50(a). The court orally granted the motion and subsequently wrote a decision explaining its reasoning. We affirm.

Many excessive force cases involving officers' judgment calls are resolved on qualified immunity grounds, either on summary judgment or at trial. See Ryder v. United States, 515 U.S. 177, 185, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995) ("Qualified immunity specially protects public officials from the specter of damages liability for judgment calls made in a legally uncertain environment."). But the defendants did not raise immunity as an issue at the time of their Rule 50 motion, and so they have waived that defense as a grounds for the motion.

I.

Our review of the grant of the Rule 50(a) motion is de novo. Espada v. Lugo, 312 F.3d 1, 2 (1st Cir.2002). We review the evidence, taking all inferences in favor of Isom, and ask whether a reasonable jury could have decided that the defendants were liable based on the evidence presented. See Acevedo-Garcia v. Monroig, 351 F.3d 547, 2003 WL 22871023, (1st Cir. Dec. 5, 2003) 2003 U.S.App. LEXIS 24475, at *40; Transamerica Premier Ins. Co. v. Ober, 107 F.3d 925, 929 (1st Cir.1997).

II.

We describe the evidence adduced at trial in the light most favorable to the plaintiff.

On the morning of March 7, 1997, Robert Mark Isom entered 1776 Liquors, a liquor store in Warren, Rhode Island. Erin Alves and Beth Engell were working at the store, but no customers were present. After walking around the store, Isom approached Alves and asked her if she was single and would like to go on a date. Alves explained that she had a boyfriend, and asked if she could help Isom find anything. Isom did not respond, but simply left the store.

Alves watched Isom through the store window as he opened the trunk of a car and removed an object wrapped in newspaper. Isom came back into the store with the concealed item and placed it on the store counter. He asked Engell to lock the store's doors, but she said that she did not have the keys. Alves recalled that Isom "was saying his life was worth shit and he had nothing to live for." Isom then asked Alves and Engell if they had a gun; they responded that they did not. Continuing to mutter that his life was worthless, Isom pressed the concealed item against Engell's stomach, explaining that he did not want to have to hurt either Alves or Engell. At some point, Alves activated a silent alarm behind the counter.

Isom then unwrapped the concealed item — it was an axe. He began to play with the axe. Alves started to cry and Engell asked Isom if Alves could leave because she was pregnant. Isom said yes, and Alves left the store. Shortly thereafter, when Isom put his head down on the counter and continued to mutter, Engell ran out of the store as well.

Engell encountered Police Sergeant Green, who asked her whether the man inside was armed (the silent alarm had brought the police to the store). Engell replied that Isom was carrying an axe. Green, by himself, entered the store with his gun drawn and started talking to Isom, who was standing in the middle of the store. Isom was initially silent, but eventually told the officer his name and said, according to Green, that "he was going to die today." Isom then became non-responsive to Sergeant Green's further questions and "just went blank." He was holding the axe in his right hand with a tight grip, and it was raised slightly up. Several seconds later, Officer Ouellette, who had arrived separately, entered the store and knelt down, with his gun drawn, on Sergeant Green's right. At about the same time, another officer, Loiselle, entered the store and positioned himself at the rear exit.

Green and Ouellette testified that they started "continuously" "pleading" for Isom to drop the axe, but Isom remained in a daze and did not reply. At some point, two other officers, Captain Barkett and Detective Clancy, entered the store. Sergeant Green explained to Captain Barkett that he was "trying to handle it between [himself] and Mr. Isom." Captain Barkett did not reply. Detective Clancy also began telling Isom to drop the axe.

After several minutes, Detective Clancy, who was in plain clothes, reached over and removed Sergeant Green's cannister of pepper spray from his belt. He testified that he was concerned that, given Isom's non-responsiveness, the officers' safety was in danger and he believed that spraying Isom with the pepper spray would allow the officers to suppress Isom. Detective Clancy then held up the pepper spray to Captain Barkett, the commanding officer on the scene, who "nodded to [Clancy] in the affirmative nature." Detective Clancy yelled out "ASR," an indication to the other officers that he was going to use the spray; each of the officers had been through several hours of training on the use of pepper spray in which this code-word had been explained.

From behind the store counter, Detective Clancy started to spray Isom with the pepper spray and yelled for Isom to put down the axe. Clancy explained that normally the spray "causes debilitation ... and you just want to succumb to [officers'] commands." Still, the spray appeared to have no effect on Isom, which Clancy found "remarkable." Clancy testified that in "[a]ll of the years that [he had] used the spray, it's always had an [e]ffect on individuals." Officer Ouellette also said that he was "caught off guard" when the spray did not affect Isom. Officer Loiselle agreed, explaining that the spray did not seem to have an effect on Isom, which was unusual: "[t]ypically an individual exposed to [the spray] would have an involuntary closure of the eyes, uncontrollable coughing, loss of coordination or stamina."

After the spray stopped, Isom turned toward Officer Loiselle and then suddenly lifted the axe and charged toward Sergeant Green and Officer Ouellette. When Isom was within ten feet of Green and Ouellette, still running toward them with the axe raised, the two officers fired their guns at Isom. Isom fell to the floor and died shortly thereafter.

III.

A. Section 1983 Claim

Plaintiff's § 1983 claim alleges that the officers violated Isom's Fourth Amendment rights by using excessive force in the course of attempting to disarm him. In order to prevail on this claim, the plaintiffs must establish that the officers' use of the pepper spray was objectively unreasonable under the circumstances. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Jarrett v. Town of Yarmouth, 331 F.3d 140, 148 (1st Cir.2003).

This inquiry requires the factfinder to consider the reasonableness of the officers' actions from the perspective of a reasonable officer on the scene, rather than through the lens of hindsight. Graham, 490 U.S. at 396, 109 S.Ct. 1865. In doing so, the factfinder should take into account "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396, 109 S.Ct. 1865; Bastien v. Goddard, 279 F.3d 10, 14 (1st Cir. 2002). All of the attendant circumstances must be considered. See Graham, 490 U.S. at 396, 109 S.Ct. 1865.

The police here encountered a situation fraught with hazard for themselves and for Isom; Isom was a distraught, seemingly suicidal man, who had briefly held two hostages and was refusing to comply with continuous officer requests that he put down an axe. In the presence of such danger, the plaintiffs could...