Rahim v. Doe
| Docket Number | s. 21-1086,21-1087 |
| Decision Date | 20 October 2022 |
| Citation | 51 F.4th 402 |
| Parties | ESTATE OF Usaamah Abdullah RAHIM, BY Rahimah RAHIM, in her capacity as Personal Representative of the Estate of Usaamah Abdullah Rahim, Plaintiff, Appellee, v. John DOE 1 ; John Doe 2, Defendants, Appellants, United States, Defendant. |
| Court | U.S. Court of Appeals — First Circuit |
Joseph B. Simons, with whom Sara Attarchi and Simons Law Office were on brief, for appellee.
Daniel Aguilar, Attorney, Appellate Staff, Civil Division, with whom Brian M. Boynton, Acting Assistant Attorney General, Joshua S. Levy, First Assistant United States Attorney, and Mark B. Stern, Attorney, Appellate Staff, Civil Division, were on brief, for appellant John Doe 1.
Nicole M. O'Connor, Senior Assistant Corporation Counsel, for appellant John Doe 2.
Before Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.
FBI Special Agent John Doe 1 and Boston Police Department Detective John Doe 2, members of the FBI's Joint Terrorism Task Force (the "Task Force"), appeal from a district court's denial of their pre-discovery motions for summary judgment on qualified immunity grounds. The officers shot and killed a terrorist suspect on June 2, 2015, in Boston's Roslindale neighborhood. Plaintiff Rahimah Rahim, the representative of the decedent's estate (the "Estate"), sued, alleging that the officers' use of lethal force violated the Fourth Amendment and asserting various claims under state law.
The district court found that the officers would be entitled to qualified immunity if it considered only the moment of the shooting. But it denied summary judgment and authorized discovery on the theory that the proper focus was not just on the encounter itself but on the officers' plans and actions in the lead-up to the encounter. We reverse.
The following facts are not in dispute. In the spring of 2015, decedent Usaamah Rahim was being investigated by the Task Force for connections to the Islamic State of Iraq and the Levant ("ISIL"), a foreign terrorist group. Officers Doe 1 and Doe 2 were involved in this investigation.
As part of the investigation, the Task Force conducted electronic and physical surveillance on Rahim and on David Wright and Nicholas Rovinski, believed to be Rahim's coconspirators. Cf. United States v. Wright, 937 F.3d 8, 13, 32-37 (1st Cir. 2019) (). The Task Force monitored calls among the three men.
On June 2, 2015, at 5:18 a.m., Task Force officers (likely not the defendants) intercepted a call between Rahim and Wright, both located in the Boston area. Rahim told Wright that he (Rahim) "was losing [his] intention" and thus "must act sooner than anticipated." He could no longer wait for the "things" that were "gonna ... go down" in New York on the Fourth of July. Instead of traveling to New York, his plans were "local" and immediate: he would go on "vacation" "right here in Massachusetts." He planned to "go[ ] after ... those boys in blue" because they were the "easiest target." Rahim had already given his "bi'ah [allegiance]," and thus this would be more than simply a "vigilante attack." The attack would be "random" and "might even happen today." "[I]f not today, then tomorrow ...." Rahim expressed his belief that "Jihad is a way out ... of this dunayh [worldly life]" and discussed plans to empty his bank account and prepare a will.
Around 6:00 a.m. that morning, Doe 1, Doe 2, and other Task Force officers gathered in a CVS parking lot near Rahim's apartment in the Roslindale neighborhood of Boston to conduct a surveillance shift. Around this time, a Task Force supervisor notified the surveillance team of Rahim's conversation with Wright and instructed Doe 2 that Rahim had to be stopped from boarding any public transportation. Doe 2 was aware that Rahim rode a public bus from a stop in front of the CVS on Washington Street, less than a five-minute walk from Rahim's apartment. Doe 2 relayed the supervisor's order to other members of the surveillance team and asked them to assemble at Doe 2's vehicle in the CVS parking lot to develop a plan to prevent Rahim from boarding the bus.
Shortly after 7:00 a.m., the surveillance team watched Rahim leave his apartment and walk toward the nearby bus stop on Washington Street. As Rahim walked toward the bus stop, he placed a call on his cell phone, speaking first with his brother, Muhammad Rahim, and then with his father, Abdulla Rahim. Rahim told his brother: "Unfortunately, you will not be seeing me again." The record does not reveal whether the officers planning to intercept Rahim were aware of the contents of this conversation. As Rahim approached the bus stop, still on the phone, he was approached by Doe 1, Doe 2, and other members of the surveillance team. The record is unclear as to whether the officers identified themselves and whether they approached with their weapons already drawn.1
Rahim's cell phone captured audio of the ensuing confrontation2 :
Throughout this exchange, Rahim advanced on the officers and the officers retreated to maintain distance. Civilian witnesses described Rahim as "not look[ing] like he was going to stop" and at least one of the officers as appearing fearful. The officers retreated backward across much of the CVS parking lot until they were up against a curb at the edge of the lot. Rahim kept advancing and came within twenty-five feet of the officers. Just seconds before the shooting, Rahim had refused to put his hands up, had refused to drop what was in his hand, had taunted the officers telling them to drop what was in their hands, and had taunted them more with his "Come on!" statement. An objective officer would conclude Rahim had chosen to escalate the situation and that Rahim was an increasing threat. And Rahim's actions were consistent with his words: he kept advancing on the officers, despite their attempts by retreating to not let him close the distance. When he had come close enough to them to be a lethal threat to the officers and others, they had split-second decisions to make about what was needed to stop him. And two officers almost simultaneously reached the same decision. Doe 1 fired twice and Doe 2 fired once. Rahim was hit. The entire encounter unfolded over about thirty seconds.
After Rahim went down, the officers removed something from his hand and tossed it away from him. One of the officers stood guard over this object while the others performed first aid on Rahim.
The Boston Police Department later processed an Ontario Knife Company Model SP6 Fighting Knife -- thirteen inches long with an eight-inch blade -- submitted for a post-incident criminalistics report. The EMTs who responded to the scene also found a knife sheath in their ambulance after delivering Rahim to the hospital. The sheath, from which no latent prints were recovered, appeared to be for a blade that was at least six inches long. Rahim had been the only patient in the ambulance.
The Estate sued Doe 1, Doe 2, and the United States on May 31, 2018, alleging that the officers' actions violated Rahim's Fourth Amendment rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and asserting state law negligence, wrongful death, assault, and battery claims.3 The Estate's operative complaint does not allege that Rahim was unarmed during the encounter. The complaint refers to the officers' belief that Rahim was armed and planned to carry out a terrorist attack:
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