Maiorana v. MacDonald, Nos. 78-1424

• Decision Date: 18 April 1979
• Docket Number: Nos. 78-1424,78-1425
• Parties: Christine MAIORANA, as the Administratrix of the Estate of Anthony C. Maiorana, Plaintiff-Appellant, v. Robert D. MacDONALD and Robert Scire, Defendants-Appellees. Christine MAIORANA, as the Administratrix of the Estate of Anthony C. Maiorana, Plaintiff-Appellant, v. James JAJUGA, Robert J. Long, and Ronald Guilmette, Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1072

596 F.2d 1072

Christine MAIORANA, as the Administratrix of the Estate of Anthony C. Maiorana, Plaintiff-Appellant, v. Robert D. MacDONALD and Robert Scire, Defendants-Appellees.

Christine MAIORANA, as the Administratrix of the Estate of Anthony C. Maiorana, Plaintiff-Appellant, v. James JAJUGA, Robert J. Long, and Ronald Guilmette,

Defendants-Appellees.

Nos. 78-1424, 78-1425.

United States Court of Appeals, First Circuit.

Argued Jan. 4, 1979.

Decided April 18, 1979.

Jeffrey M. Kaye and Raymond C. Malloy, with whom Struffolino, Malloy & Kaye, Methuen, Mass., were on brief, for plaintiff-appellant.

Joseph W. Monahan, III, Boston, Mass., for defendant-appellee Robert Scire.

Edward J. Duggan, Sp. Asst. Atty. Gen., with whom Chester R. McLaughlin, Sp. Asst. Atty. Gen., was on brief, for defendants-appellees James Jajuga, Robert J. Long and Ronald Guilmette.

Carolyn Grace, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for defendant-appellee Robert D. MacDonald.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

The plaintiff is the mother of Anthony C. Maiorana who was shot and killed in the course of an arrest on February 15, 1974, by local, state and federal law enforcement officers. As administratrix of her son's estate, she brought two actions for damages under 42 U.S.C. § 1983 and the fourth amendment to the United States Constitution. ¹ The first complaint was filed against Massachusetts State Police Officers James Jajuga, Robert J. Long, and Ronald Guilmette; the second, against Robert D. MacDonald, a special agent of the Federal Bureau of Alcohol, Tobacco, and Firearms, and Robert Scire, a Woburn police officer. The district court granted summary judgment for all defendants, which ruling is challenged on appeal.

The plaintiff's claim is a serious one: that the defendants acted with gross negligence, bad faith, and excessive force in killing her son while attempting to arrest him. ² There is no question that she has stated a cause of action, even though it is unclear whether she also contends that there was no probable cause to arrest her son. ³ Williams v. Liberty, 461 F.2d 325, 327 (7th Cir. 1972); Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir. 1970); Delaney v. Dias, 415 F.Supp. 1351, 1353 (D.Mass.1976).

In answering the complaints, all defendants claimed qualified immunity for their actions. The defense of qualified immunity, which is available to local, state, and federal law enforcement officers, protects the defendants from liability for damages if they acted with a good faith belief based upon reasonable grounds that the measures they took were necessary. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

All of the defendants, either expressly or impliedly, also contended that their actions were fully justified. They further asserted that the plaintiff's actions for violation of her son's civil rights did not survive his death.

In moving for summary judgment or dismissal, the defendants each filed affidavits of their own, along with affidavits from Agent Henry Foderaro of the Bureau of Alcohol, Tobacco, and Firearms, the doctor who performed the autopsy, and a state police ballistician. The plaintiff filed three counteraffidavits. Except for memoranda of law, no further materials were filed.

The defendants' affidavits, which are, in the main, uncontradicted, establish the following facts. Jajuga first met Maiorana in January, 1973, while investigating narcotics violations in the Lowell area. From Maiorana, he received information that led to some arrests and prosecutions. On February 12, 1973, he, along with two Lawrence police officers, arrested Maiorana at his home for an armed robbery while masked. According to Jajuga's affidavit, during the arrest Maiorana reached under a pillow for a revolver, but was prevented from getting it by one of the officers grabbing his hand. This was contradicted by plaintiff, who, in one of her affidavits, stated that at the time of the arrest she was standing in the doorway and that Jajuga asked her son where the gun was, that her son told him the gun was under the pillow and that Jajuga then reached over and took it. ⁴

Jajuga last received information from Maiorana in November, 1973, had no subsequent contact with him, and did not participate in the events leading to the attempt to arrest him on February 15, 1974.

In January and February, 1974, MacDonald was investigating illegal firearms traffic in the Woburn area. Agent Foderaro informed MacDonald that, while under cover, he had purchased a gun from Maiorana. On advice of Foderaro, MacDonald contacted Long, who was also conducting a firearms trafficking investigation with Guilmette and was planning to obtain a search warrant for the apartment where Maiorana obtained the gun sold to Foderaro. Long and Guilmette had the cooperation of William Callagy and Stephen Fleischman. Long's affidavit states that Callagy told him that many guns were being sold illegally in Lawrence, that his girl friend had received numerous phone calls threatening her life and the lives of her two children, that Maiorana, who carried a .357 Magnum, was the main source of the guns in Lawrence and that he obtained them from a person named Dave who lived in Woburn and drove a taxi. Long had discussed this information with Scire, who was able to fully identify the Woburn source as one David Wells. Neither Long, Guilmette nor Scire knew Maiorana personally.

A search warrant was obtained for Wells' apartment on February 12, 1974. It was not executed, as anticipated, on February 13 because Maiorana failed to contact the undercover agent who had arranged to buy a gun there.

On February 14, 1974, Guilmette and Long learned that Maiorana was going to sell Callagy some guns at the apartment, and the officers planned to execute the warrant upon a signal from Callagy who was fitted with an electronic listening and signalling device. The signal was not given, however, because there were no guns in the apartment when Callagy, Fleischman, and Maiorana went there.

Callagy informed Guilmette about 10:30 in the evening of February 14 that Maiorana had told him and Fleischman that he had robbed Friendly's ice cream store in Woburn and a taxi stand. The officers knew the store had been robbed at 7:30 P.M. by a man meeting Maiorana's description and carrying a large hand gun. Long was informed on the morning of February 15 by Guilmette that Maiorana had phoned Callagy that morning and told him that the guns could be bought that day and that he would meet Callagy at Wells' apartment about noon. Long met with the other officers involved and Callagy and Fleischman in the parking lot of the Woburn Police Department about noontime. Callagy and Fleischman were introduced to the others and the plan for the execution of the warrant and the arrest was outlined. Both Callagy and Fleischman told the officers that Maiorana had a .357 Magnum and had told them that the reason he carried it was to give him the edge on any cop (since the police only had .38 revolvers) and had stated that he was not going to be taken alive. They also said that Maiorana had shown them a secret place in his jacket with a special hole in it from which he could fire the Magnum without opening the jacket. They told the officers that they thought Maiorana was crazy and they were afraid of being caught in a cross-fire in the event of a shoot-out. MacDonald stated in his affidavit that Long told him that Maiorana was too dangerous to be out on the street and that if he were not arrested, he would kill someone. The officers also knew that Maiorana was a drug user and had a prior criminal record.

After the parking lot meeting, Callagy and Fleischman went to meet Maiorana at Wells' apartment. They were still equipped with the electronic device and were to give a signal if there were guns at the apartment, but there were none. MacDonald's affidavit stated that he listened to what went on in the apartment via the "bug." MacDonald heard the three go to their car, heard Maiorana leave the car and return and heard one of the informants ask Maiorana if he had gone back for his gun, to which Maiorana replied that he had. Maiorana was observed leaving the apartment with a .357 Magnum in his belt and getting into the back seat of the car which Callagy drove with Fleischman as a front seat passenger. As the car approached the intersection of Montvale Avenue and Washington Street, it stopped for a traffic light in heavy traffic. The officers who had been following the car had radioed ahead for another cruiser, which they learned was manned by a young and inexperienced trooper. Not wishing to involve him and hoping to take Maiorana by surprise, they decided that, if the traffic light turned red again, after turning green, and Callagy's car was still stopped, they would arrest Maiorana immediately. Callagy's car was halted again by a change of lights and the arrest attempt was made.

Approaching the car from behind, Long and Guilmette went to the passenger side, and MacDonald and Scire went to the driver's side. All had their guns drawn, displayed police identification, and shouted warnings not to move. Long reached into the back seat and attempted to restrain Maiorana's hands. A shot was fired and Long was hit. MacDonald heard Long exclaim, "I am hit," or words to that effect. He saw movement in the back seat and fired three times. Scire's affidavit stated that he fired a single shot after seeing Maiorana reach for his waist. Guilmette stated that he shot from a crouched position after realizing that Long had been hit and seeing Maiorana use his left hand to grip the butt of the gun he had in his belt. Scire ran around the car to...