Salim v. Proulx

• Decision Date: 23 August 1996
• Docket Number: No. 1373,D,1373
• Citation: 93 F.3d 86
• Parties: Maria SALIM, Administratrix of the Estate of Eric Reyes, I/O, Plaintiff-Appellee, v. William PROULX, Defendant-Appellant. ocket 95-7899.
• Court: U.S. Court of Appeals — Second Circuit

Page 86

93 F.3d 86

Maria SALIM, Administratrix of the Estate of Eric Reyes, I/O, Plaintiff-Appellee, v. William PROULX, Defendant-Appellant.

No. 1373, Docket 95-7899.

United States Court of Appeals, Second Circuit.

Argued June 5, 1996.

Decided Aug. 23, 1996.

Elliot B. Spector, Sack, Spector & Barrett, West Hartford, Conn., for defendant-appellant.

Joseph C. Morelli, Law Offices of Mark E. Salomone, Hartford, Conn., for plaintiff-appellee.

Before: NEWMAN, Chief Judge, JACOBS and CABRANES, Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal concerns a claim of qualified immunity in the context of a police officer's use of deadly force. Defendant-appellant William Proulx, an East Hartford, Conn., police officer, appeals from that portion of the August 11, 1995, order of the District Court for the District of Connecticut (Dominic J. Squatrito, Judge) that denied his motion for summary judgment on the ground of qualified immunity. Plaintiff-appellee Maria Salim, administratrix of the estate of her son, Eric Reyes, brought federal and state claims against the Town of East Hartford, Chief of Police James Shay, and Officer Proulx for Proulx's action in fatally shooting Eric during an attempt to arrest him.

However regrettable the death of Eric Reyes, we conclude that Officer Proulx is entitled, as a matter of law, to the defense of qualified immunity. Since the federal claim must be dismissed at the threshold, it would be inappropriate to exercise supplemental jurisdiction over the plaintiff's state law claims. We therefore reverse and remand with directions to dismiss the complaint as to Officer Proulx.

Facts

For purposes of this appeal, Officer Proulx has stipulated to the facts as set forth by plaintiff. Our account of the unfortunate episode that took the life of Eric Reyes is taken from plaintiff's version of the facts as detailed in her Rule 9(c) Statement of Facts. See D. Conn. Local R. Civ. P. 9(c). In February 1992, Officer Proulx, while working in plainclothes serving arrest warrants, attempted to locate and apprehend Eric Reyes, aged 14, who had escaped from a juvenile detention center a few weeks earlier and had already twice eluded capture by the East Hartford police. Proulx locked his service revolver and radio in the trunk of his car, and armed himself only with his personal .22 caliber handgun. He carried no handcuffs or other disabling devices.

Proulx located Eric standing near his home. Eric ran away, and the officer pursued. Eric threw a rock at Proulx, which struck him in the arm and ricocheted off his forehead. Proulx believed Eric had a knife and fired a warning shot to force him to retreat. In fact, Eric was unarmed. Eventually Proulx caught Eric, and they fell to the ground struggling. The officer's gun was in his pocket. After Proulx had pinned Eric to the ground, a group of five or six children between the ages of eight and twelve, including Eric's brother Ricardo and sister Janicette, arrived on the scene. These children began to hit and kick Officer Proulx in order to free Eric. ¹

Eventually, Proulx's gun was taken out of his pocket, and Eric was fatally shot. Plaintiff's 9(c) Statement asserts that Officer Proulx pulled the gun from his pocket during the fight and pointed it at the children. ² The 9(c) Statement then sets forth the following critical circumstances under which the officer fired his weapon: "During the 5 minute fight Officer Proulx saw the barrel of his gun in Eric's hand and he instinctively grabbed the handle and pulled the trigger." Plaintiff's 9(c) Statement. ³

Magistrate Judge Thomas P. Smith recommended denying Officer Proulx's motion for summary judgment on the excessive force claim, stating that genuinely disputed issues of fact existed as to whether a reasonable officer could have believed that the use of deadly force against Eric comported with constitutional requirements. With respect to the state law claims, the Magistrate Judge noted that, under state law, a public official is liable for discretionary acts only when it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185, 1189 (1988). The Magistrate Judge concluded that there were material issues of fact precluding summary judgment as to whether Proulx's behavior fell within this exception. The District Judge adopted the recommendation of the Magistrate Judge by endorsement order, denying Proulx's motion for summary judgment.

Discussion

The gravamen of plaintiff's complaint with respect to Officer Proulx is that the officer unconstitutionally used excessive force by fatally shooting Eric or by creating a situation in which the use of deadly force was likely to occur. Although plaintiff makes this claim pursuant to a number of federal statutes and constitutional amendments, the claim that a police officer used excessive force, including deadly force, is properly styled a section 1983 action and analyzed under the Fourth Amendment's reasonableness standard. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). In defense, Officer Proulx asserts qualified immunity.

A. Standards of Qualified Immunity Defense

The substantive standards of a qualified immunity defense are well settled. We repeat them here only to clarify the subsequent discussion of the appealability of a district court's interlocutory ruling denying an immunity defense. A qualified immunity defense is established if (a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982); Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.1995).

B. Appellate Jurisdiction

Under the collateral order doctrine, "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision'...." Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). That principle is easy to apply whenever a defendant's interlocutory appeal challenges a denial of a qualified immunity defense on the ground that the district court erred in ruling that the law the defendant is alleged to have violated was clearly established. However, appealability is more difficult to determine when the district court's legal ruling involves an assessment of facts. Recent Supreme Court decisions have now made it clear that some rulings of this latter sort are appealable and others are not.

The fact-related ruling that is not appealable is "a district court's summary judgment order that, though entered in a 'qualified immunity' case, determines only a question of 'evidence sufficiency,' i.e., which facts a party may, or may not, be able to prove at trial." Johnson v. Jones, --- U.S. ----, ----, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995). As later phrased in Behrens v. Pelletier, --- U.S. ----, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996), "[D]eterminations of evidentiary sufficiency at summary judgment are not immediately appealable ... if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred...." Id. at ----, 116 S.Ct. at 842.

Though it was arguable that Johnson intended to preclude an interlocutory appeal whenever a district judge denied summary judgment on the ground that a material fact was genuinely in dispute, the Court's subsequent decision in Behrens dispelled such a notion. In Behrens, the District Court had denied summary judgment precisely on the ground that a disputed issue of fact existed, id. at ----, 116 S.Ct. at 838, yet an appeal was not precluded, id. at ----, 116 S.Ct. at 842. Thus, Behrens laid to rest any possibility that a district court's mere assertion that disputed factual issues existed was enough to preclude an immediate appeal.

After Johnson and Behrens, several types of fact-related rulings remain appealable. The clearest example is where the defendant appeals the denial of an immunity defense on the ground that, on stipulated facts, the defense is established as a matter of law. Similarly, an appeal is available where the defendant accepts, for purposes of the appeal, the facts as alleged by the plaintiff. See, e.g., Jemmott v. Coughlin, 85 F.3d 61, 66 (2d Cir.1996). Indeed, Behrens goes further and permits an appeal where a defendant contends that the immunity defense is established on those facts, alleged by the plaintiff, that the district court ruled were sufficiently supported to create jury issues. As Behrens explained, "Johnson permits petitioner to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of 'objective legal reasonableness.' " Behrens, 457 U.S. at ----, 116 S.Ct. at 842. Even if the district court did not identify the particular charged conduct that it deemed adequately supported, Johnson permits an appeal, though it acknowledges that a "a court of appeals may have to undertake a cumbersome review of the record to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Johnson, --- U.S. at ----, 115 S.Ct. at 2159; Behrens, --- U.S. at ----, 116 S.Ct. at 842. Presumably, that burden would end as soon as the appellate court identified any evidence, regardless of probative force, that put in issue the defendant's claim as to undisputed facts.

Thus, as long as the defendant can support an immunity defense on stipulated facts, facts accepted for purposes of the appeal, or the plaintiff's version of the facts that the district...