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 remaining
On September 27, 2014, in Chester, Maine, a caller notified the Penobscot County Sherriff's Office (
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.
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.
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"
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.
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,
Pl.'s App'x. Ex. A (
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.
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.
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
At around 2:10 p.m., when tactical team member Todd Stetson came to the perimeter, Mr. Gerken said, "that's a real warrior there." SMF ¶¶ 272-73. Shortly thereafter, around 2:20 p.m., Mr. Gerken became agitated. SMF ¶ 50. He yelled "you've got no ammo," "I am the angel of death, and I can kill us all with one fingernail," and "I had 30 minutes of lightning. What are you going to do?" SMF ¶ 50.
At 3:06 p.m., Sgt. Small of the crisis negotiation team took over from Tpr. Fiske as lead negotiator. SMF ¶ 300. Cpl. Madore relayed information to Sgt. Small that might facilitate communications, including Mr. Gerken's mental health diagnoses and disclosures to his therapists. SMF ¶ 79. The negotiators learned that Mr. Gerken had various mental health diagnoses, including schizophrenia, type I bipolar disorder with psychotic features, attention deficit disorder, posttraumatic stress disorder, and possible borderline personality disorder. SMF ¶¶ 240, 253.
Sgt. Small attempted to persuade Mr. Gerken to put down his knife. He spoke to Mr. Gerken about his children, assured him that the police would not approach or hurt him, and offered food, water, and medical care if Mr. Gerken put down the knife. SMF ¶¶ 62, 301. Sgt. Small told Mr. Gerken not to stand up with his knife in his hand and presented a "surrender plan" that Mr. Gerken could follow to safely turn himself in to police. SMF ¶¶ 63-65. Mr. Gerken was mostly unresponsive, but he did say "no" and shake his head in response to requests that he put down the knife. SMF ¶¶ 66-67, 297.
Sgt. Grass, as commander of the tactical team, created a plan for taking Mr. Gerken into custody in the event that the negotiations failed. SMF ¶ 87. The plan revolved around the use of a fire hose that would be sprayed at Mr. Gerken to pin him to the ground and force the knife from his hand. SMF ¶¶ 86-90. This would allow four other tactical team members to converge on Mr. Gerken and take him into custody. SMF ¶¶ 86-90. Sgt. Grass had attended a presentation several years prior on the safe use of fire hoses to subdue dangerous individuals. SMF ¶ 113. Tpr. Roy had received instruction and experience in the use of a fire hose in June 2014, three months prior. SMF ¶¶ 115-18.
Lincoln Fire Department firefighters provided the equipment and instructed Tpr. Roy on the use of the hose, including the operation of the nozzle, which was consistent with the instruction he had received in June. SMF ¶¶ 138-39. Both Cpl. Madore and Tpr. Roy conferred with the firefighters about choosing the nozzle that would deliver the most concentrated, forceful spray. SMF ¶¶ 132, 137. The firefighters assured Tpr. Roy that the nozzle chosen was the best one to achieve a focused beam of water and that their equipment would discharge water with enough force to pin a person to the ground. SMF ¶¶ 136-37.
In addition, Sgt. Michaud, who was chosen to be one of the four tactical team members who would converge on Mr. Gerken, would be armed with a 40mm foam baton launcher, which he would fire at Mr. Gerken to cause abrupt pain and force Mr. Gerken to drop the knife. SMF ¶¶ 91-95. Sgt. Michaud had extensive training in using the foam baton launcher. SMF ¶ 93. Sgt. Grass communicated the plan and requested feedback from the tactical team and crisis negotiation team and heard no objection. SMF ¶¶ 98-99.
Mr. Gerken did not present a risk of immediate bodily harm to the tactical team while he was lying on the ground. SMF ¶ 320. Mr. Gerken had complied for hours with the instruction not to get up with a knife in his hand. SMF ¶ 324.
As the afternoon progressed, members of the tactical team found it increasingly difficult to see Mr. Gerken clearly in the dwindling light. SMF ¶ 140. Shortly after 5:00 p.m., while Sgt. Small was talking to Mr. Gerken about his children and having the strength to survive, Mr. Gerken, while still lying on his back, raised his arms and began swiping his knife through the air. SMF ¶ 146. Some members of the tactical team heard Mr. Gerken say "I'll cut you" or words to that effect. SMF ¶ 147.
Cpl. Madore and Sgt. Grass discussed the danger posed by the onset of darkness,
At approximately 5:15 p.m.,
Shortly afterward, Sgt. Grass gave the order to activate the fire hose, fire the baton rounds,
After Mr. Gerken got up, the situation unfolded very quickly. Statements given the night of the incident by Sgt. Grass, Det. Mitchell, and Sgt. Shead tell a consistent story, even though the perspective of these officers varied.
Sgt. Shead said that he then perceived that Mr. Gerken posed an imminent threat, and he fired several shots at Mr. Gerken from his rifle. SMF ¶ 215. The
Det. Mitchell shouted at Mr. Gerken to stop moving and stay on the ground. SMF ¶ 220. Sgt. Grass, Det. Mitchell, and Sgt. Shead each saw Mr. Gerken in the process of getting back to his feet with the knife still in his hand. SMF ¶ 222. Cpl. Madore described Mr. Gerken sitting up and beginning to lunge forward with the knife in his hand. SMF ¶¶ 216, 224. Based on their perception that Mr. Gerken posed an imminent threat, Sgt. Grass, Det. Mitchell, and Sgt. Shead fired additional rounds at Mr. Gerken. SMF ¶¶ 225-26.
When firing ceased, Sgt. Shead, one of the tactical team medics, determined that Mr. Gerken had no vital signs, and EMTs confirmed that Mr. Gerken had died, marking the time of death as 5:20 p.m. SMF ¶¶ 227, 230, 392.
In total, the tactical team fired 28 bullets at Mr. Gerken during the incident. SMF ¶ 417. Sgt. Grass fired 13 bullets, Sgt. Shead fired 9, and Det. Mitchell fired 6. SMF ¶ 417. Between 25 to 27 of the bullets hit Mr. Gerken. SMF ¶ 421. The autopsy report shows that most of the bullets entered Mr. Gerken's body from the back. SMF ¶ 422. Most of the gunshot wounds went from left to right, although the entrance to the head was on the right side and traveled left. SMF ¶ 424. The report confirmed two entrance wounds on the front abdomen. SMF ¶ 421. The report showed 14 entrance wounds on the back body, 2 on the right shoulder that reentered the base of the head, 1 on the left tricep, and 2 on the right arm. SMF ¶ 421. The report also recorded a gaping wound on the left anterior thigh, consistent with a cluster of 4 to 6 entrance wounds, and Mr. Gerken's head suffered "explosive destruction." SMF ¶ 421.
All MSP officers are required to review certain MSP general orders annually, including M-1 on the use of force, M-2 on response to barricaded or hostage situations, and M-3 on response to individuals experiencing mental illness. SMF ¶ 168. The M-3 general order states: "The policy of the Maine State Police is to duly and diligently assist individuals who are or may be experiencing mental health crises." SMF ¶ 238. The policy includes standards for arresting or taking an individual into protective custody where the officer has probable cause to believe that an individual is experiencing a mental health crisis." SMF ¶¶ 17, 238.
Tpr. Fiske, the initial negotiator on the scene, had additional training in basic hostage negotiation (40 hours), ADA for law enforcement, police response to people with disabilities, and law enforcement interactions with people with autism. SMF ¶ 181.
Members of the crisis negotiation team have specialized training in communicating with individuals experiencing mental health crises and with armed and unarmed standoffs. SMF ¶ 16. The crisis negotiation team trains together for 12-13 days per year, which typically includes scenario-based exercises, as well as lectures. SMF ¶¶ 57-58. Sgt. Small and Cpl. Madore are certified as negotiators from the Maine Criminal Justice Academy, which requires training in abnormal psychology assessment, crisis/suicide intervention, active listening and communication skills, assessment of a person's emotional stability, and crisis resolution. SMF ¶¶ 55-56, 66. Both had training on interacting with individuals
The tactical team's annual training, since 2010, has included encounters with persons exhibiting behavior indicative of mental illness and on the use of deadly force. SMF ¶ 170. The tactical team also trains at least annually with the crisis negotiation team. SMF ¶ 171. A portion of tactical team training is scenario-based and regularly involves individuals who appear to suffer from mental illness. SMF ¶ 172. In April 2011, members of the tactical team were required to attend a two-hour training on dealing with emotionally disturbed people, taught by a presenter from Community Health and Counseling Services Crisis Service in Bangor. SMF ¶ 173. Defendant Shead did not attend this training. See SMF ¶ 174. In September 2012, members of the tactical team were required to attend a four-hour training on bath salts and mentally disturbed people presented by the Brewer Police Department. SMF ¶ 175. All named defendants attended this training. SMF ¶ 176. In December 2013, members of the tactical team were required to attend a four-hour training on dealing with mentally ill individuals, presented by the crisis negotiation team. SMF ¶ 177. All named defendants attended this training. SMF ¶ 178. Sgt. Grass, Sgt. Shead, and Det. Mitchell, as well as tactical team members Dalton, Michaud, and Hamilton, also had training in ADA for law enforcement and police response to people with disabilities. SMF ¶¶ 180, 182, 183, 185-87.
Summary judgment is warranted where the moving party shows that there is no genuine dispute of material fact and that the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. Pro. 56(a). A fact is material where it could influence the outcome of the litigation. Oahn Nguyen Chung v. StudentCity.com, Inc., 854 F.3d 97, 101 (1st Cir. 2017). A dispute is genuine where a reasonable jury could resolve the point in favor of the non-moving party. Id. In deciding a motion for summary judgment, the court must construe "all the facts in the light most flattering to the nonmoving party, resolving any evidentiary conflicts in that party's favor, and drawing all reasonable inferences therefrom to his behoof." Id. (quoting Gomez v. Stop & Shop Supermkt. Co., 670 F.3d 395, 396 (1st Cir. 2012)).
The intersection between summary judgment and qualified immunity can be tricky to navigate. Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009).
Id. at 18-19 (internal citations omitted). "Because determining reasonableness in [the excessive force] context is such a fact-intensive endeavor, summary judgment is improper if the legal question of immunity turns on which version of the facts is accepted." Id. at 25 (quoting Griffith v. Coburn,
Particularly in assessing a deadly force claim, courts "may not simply accept what may be a self-serving account by the police officer" where "the witness most likely to contradict [the officer's] story — the person [he] shot dead — is unable to testify." Flythe v. D.C., 791 F.3d 13, 19 (D.C. Cir. 2015) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). In such instances, courts must "carefully examine all the evidence in the record ... to determine whether the officer's story is internally consistent and consistent with other known facts." Id. (quoting Scott, 39 F.3d at 915). This includes "the circumstantial evidence that, if believed, would tend to discredit the police officer's story." Id. (quoting Scott, 39 F.3d at 915).
The Plaintiff alleges in Counts Two and Five that Sgt. Grass, Sgt. Shead, and Det. Mitchell used excessive force against Mr. Gerken in violation of the Fourth Amendment and the Maine Civil Rights Act, (
Government officials are entitled to qualified immunity unless their conduct constitutes a violation of federal law that was "clearly established" at the time. Saucier v. Katz, 533 U.S. 194, 201-06, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "Qualified immunity is a judicial gloss designed to allow public officials to perform discretionary tasks without the constant threat of legal liability.... the doctrine is intended to protect `all but the plainly incompetent [and] those who knowingly violate the law.'" Morelli, 552 F.3d at 18 (internal citation omitted) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Qualified immunity claims at the summary judgment stage are analyzed in two-steps. Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009) (adopting the two-pronged qualified immunity test from Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)).
Id. at 269.
When a plaintiff alleges excessive force in effecting an arrest, the federal right at issue is the Fourth Amendment prohibition of unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "[T]he right to make an arrest ... necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Id. at 396, 109 S.Ct. 1865. The force used must be "objectively reasonable" under the circumstances. Id. at 397, 109 S.Ct. 1865. Reasonableness turns on a balancing of the nature and quality of the intrusion on the individual's Fourth Amendment rights against the government interests in effecting the seizure. Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
The assessment of reasonableness requires "careful attention to the facts and circumstances of each particular case, including 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." Graham, 490 U.S. at 396, 109 S.Ct. 1865. Courts must view the circumstances from the perspective of a reasonable officer on the scene and take into account that officers make "split-second" judgment calls about the quantum of force in "tense, uncertain, and rapidly evolving" situations. Id. at 396-97, 109 S.Ct. 1865.
At step two, the Plaintiff must show that Mr. Gerken's right to be free of this level of force was clearly established at the time of the alleged violation. Eves v. LePage, 842 F.3d 133, 141 (1st Cir. 2016). Qualified immunity is not available where the law was so clearly established that a reasonable officer would know that the law applied to these facts. The crux of the qualified immunity analysis is whether the officers had "fair notice" that they were acting unconstitutionally. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). "[T]he clearly established law must be `particularized' to the facts of the case," White v. Pauly, ___ U.S. ___, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). A "case presenting the same set of facts" is not necessary, however, to hold that defendants "had fair warning." Mlodzinski v. Lewis, 648 F.3d 24, 38 (1st Cir. 2011).
Precedent "supplies a crystal clear articulation of the right, grounded in the Fourth Amendment, to be free from the use of excessive force by an arresting officer." Morelli, 552 F.3d at 23. More specifically, the law has long recognized that "[t]he intrusiveness of a seizure by means of deadly force is unmatched," and, accordingly deadly force is excessive as a matter of law unless an objectively reasonable officer would have thought that the individual posed an immediate threat. Tennessee v. Garner, 471 U.S. 1, 3, 9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Young v. City of Providence, 404 F.3d 4, 22-23 (1st Cir. 2005).
The law is also clear that force must be proportional to the threat posed, "and as the threat changes, so too should
At the second step, I must focus on the particular facts of the case. "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments...." Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). The question here is whether the "use of excessive force constituted the type and kind of erroneous judgment that a reasonable police officer under the same or similar circumstances might have made." Morelli, 552 F.3d at 24. If a reasonable public official, situated similarly to the defendant, should have understood that his conduct violated the relevant right, then qualified immunity is not available.
The Plaintiff argues that both the decision to employ the fire hose in the first instance and the shooting of Mr. Gerken constitute violations of Mr. Gerken's Fourth Amendment rights. I address each argument in turn.
In order to determine if a constitutional violation has occurred, I must balance the strong government interest in taking Mr. Gerken into custody against Mr. Gerken's Fourth Amendment right to be free from the less-than-lethal force of a fire hose. See Scott, 550 U.S. at 383, 127 S.Ct. 1769.
Looking to the "reasonableness" factors, I first focus on the severity of the crimes at issue. The police had a warrant for Mr. Gerken's arrest on felony charges of aggravated assault and criminal threatening with a dangerous weapon. The Plaintiff contends that the severity of the charges were overstated given Mr. Gerken's mental state. Pl.'s Opp'n to Defs.' Mot. for Summ. J. 12, 30 (ECF No. 72). But at the arrest stage, the police are not required to have proof beyond a reasonable doubt that Mr. Gerken had the requisite mens rea to commit the crime. Here, an independent judicial official had reached a conclusion that there was probable cause to believe that Mr. Gerken had committed two felony offenses involving violence. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) ("Even law enforcement officials who `reasonably but mistakenly conclude that probable cause is present' are entitled to immunity.") (quoting Anderson, 483 U.S. at 641, 107 S.Ct. 3034).
As to the second "reasonableness" factor — whether he posed an immediate threat — it is undisputed that Mr. Gerken was in an emotionally disturbed state. Although he posed no immediate threat while he was lying on the ground, there was no guarantee that he would not get up at any point and either attack or attempt to escape. The tactical team, to avoid a cross-fire situation, had set up positions in a semi-circle around Mr. Gerken, leaving Mr. Gerken, a survivalist, an escape route into the forest. Mr. Gerken had doggedly held onto the knife despite numerous tactics to disarm him. The first responders repeatedly used a Taser and pepper spray
The fact that Mr. Gerken was delusional does not preclude him from being an immediate threat. The police had a strong interest in taking Mr. Gerken into protective custody. Maine's protective custody statute authorizes law enforcement to take an individual into custody, regardless of his ability to form criminal intent, based on the "probable cause to believe that the person may be mentally ill and that due to that condition the person presents a threat of imminent and substantial harm to that person or other persons." 34-B M.R.S. § 3862. Mr. Gerken's persistent delusions and the failure of negotiation to convince Mr. Gerken to release the knife justified protective custody.
As the sun began to sink, the threat that Mr. Gerken posed to himself, the police, and the greater community increased. Plaintiff cites her expert James Baranowski for the proposition that "the onset of darkness is not a valid tactical concern and is not a justification to rush." Pl.'s Opp'n 8.
The final "reasonableness" factor is whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Here, Mr. Gerken had actively resisted the attempts by the first responders to disarm and apprehend him, and he had been mostly nonresponsive to the attempts to get him to voluntarily drop the knife during negotiations. Although Mr. Gerken's resistance may have been the product of his mental illness, he had been resisting the police officers attempts to take him into custody for nearly seven hours.
The Plaintiff contends that Sgt. Grass chose the fire hose to provoke Mr. Gerken
The realities of the situation — impending nightfall in a wooded environment with an armed, emotionally disturbed individual — left the police with limited options. The police had already unsuccessfully tried the Taser, pepper spray, and extended negotiations, [redacted]. Assessing the evidence in the light most favorable to the non-movant, no reasonable juror could conclude that Sgt. Grass's implementation of a less-than-lethal plan involving the fire hose was an objectively unreasonable choice in violation of Mr. Gerken's Fourth Amendment rights.
The individual Defendants also claim that they are entitled to qualified immunity for the shooting of Mr. Gerken. There are two factual scenarios to be analyzed. First, I must consider whether the initial shots fired at Mr. Gerken by Sgt. Shead are protected by qualified immunity. Second, I analyze whether Sgt. Grass, Det. Mitchell, and Sgt. Shead's firing of additional rounds after Mr. Gerken had already fallen are also protected by qualified immunity.
On this claim, I skip over the question of whether Sgt. Shead's first shots were objectively reasonable and focus on whether the right to be free from deadly force in these circumstances was clearly established and whether Sgt. Shead's actions were such that no reasonable officer in his position would have made the same choice.
At a general level, it is clearly established that the Fourth Amendment prohibits the use of excessive force by an arresting officer. Morelli, 552 F.3d at 23-24. It is also clearly established that the use of deadly force is justifiable only to prevent escape when an "officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Garner, 471 U.S. at 3, 105 S.Ct. 1694. In Garner, an officer shot an unarmed young man who had been caught in the act of committing a burglary and was attempting to escape. The suspect posed no immediate threat, and the Court held that the use of deadly force was not justified under the Fourth Amendment in such a case.
As the Supreme Court recently reiterated however, Garner establishes the law for "an obvious case." White, 137 S.Ct. at 552 (quoting Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d
In an effort to show that the state of the law clearly established that the officers' conduct was unconstitutional, the Plaintiff cites Crowley v. Rosie, No. 13-442-JHR, 2015 WL 5778603 (D. Me., Sept. 30, 2015).
For their part, the Defendants point to Estate of Bennett v. Wainwright, 548 F.3d 155, 175 (1st Cir. 2008)
Judge Singal found that the officer who shot Norton was entitled to qualified immunity. There was undisputed evidence that the police "are trained to use twentyone feet as a guideline for when to use lethal force against a person armed with a knife." Id. at 363. Judge Singal reasoned:
Id. at 363-64 (citing Estate of Larsen v. Murr, 511 F.3d 1255, 1261 (10th Cir. 2008) (affirming a grant of qualified immunity to an officer who used deadly force against an agitated, suicidal man holding a large knife when the distance between the man and the officer was between seven and twenty feet)). Norton, decided in 2011, is the closest case to the present facts. It provided notice that it was reasonable to use deadly force against an agitated individual armed with a knife, who had issued a threat to police, and who was within twenty-one feet and advancing dangerously towards a fellow officer.
It is the Plaintiff's burden at the second step to show that a reasonable officer in these circumstances would have known that the use of force violated clearly established law. Belsito Communications, Inc. v. Decker, 845 F.3d 13, 26-27 (1st Cir. 2016). Plaintiff mounts alternate theories to survive summary judgment. First, the Plaintiff contends that there is evidence in the record which would allow a jury to conclude that Mr. Gerken was running away at the time he was shot. Pl.'s Opp'n 27. Alternatively, Plaintiff concedes that Mr. Gerken may have been running in the direction of Det. Mitchell and Sgt. Grass, but argues that "it was likely Mr. Gerken was trying to run to the end of a blowdown and not run directly at Tactical Team members when he was shot." Pl.'s Opp'n 10.
Under the first theory, the Plaintiff attempts to
Pl.'s Opp'n 23. The Plaintiff contends that "statements given by Det. Stetson, Sgt. Small, Cpl. Madore, Sgt. Dalton, and Sgt. Grass on the night of the shooting" all confirm that Mr. Gerken was running away when he was first shot. Pl.'s Opp'n 23-24. However, upon close examination of all of the eyewitness statements, most of the officers said that Mr. Gerken initially stood after being sprayed and started running away, but then Mr. Gerken turned to the right toward Det. Mitchell and Sgt. Shead. See SMF ¶¶ 209, 212, 389-90. Det. Stetson, Sgt. Shead, and Sgt. Small said that their view was obstructed by the spray from the fire hose, although Sgt. Shead said that when his view cleared Mr. Gerken was less than 20 feet away from Det. Mitchell. SMF ¶¶ 209, 212. Cpl. Madore stated only that Mr. Gerken stood with the knife and started running toward the back of the perimeter; he did not describe a turn to the right. See SMF ¶ 209. But Cpl. Madore was not advancing with the other officers. Cpl. Madore was approximately 40 feet away from Mr. Gerken, well back from the other officers. Forensic Map. Given his inferior vantage point, Cpl. Madore's failure to mention a turn to the right does not undercut the other consistent accounts that Mr. Gerken turned towards Det. Mitchell and Sgt. Shead's advance.
Similarly, the Plaintiff contends that a jury could conclude from the fact that most shots went from back to front that Mr. Gerken was running away at the time he was shot. This assertion disregards that
In the alternative, the Plaintiff acknowledges that the blowdown of trees may have caused Mr. Gerken to turn right towards Det. Mitchell and Sgt. Shead. The Plaintiff contends that if Mr. Gerken turned right, it was only with the intent to get around the blowdown that was blocking his retreat into the woods. Pl.'s Opp'n 25. The Plaintiff asks me to consider the situation from Mr. Gerken's point of view, but I can "consider[] only the facts that were knowable to the defendant officers." White, 137 S.Ct. at 550. In this rapidly unfolding scenario, particularly in a thickly wooded area where the light was fading and the fire hose spray was partially obscuring the view, the officers reasonably could have concluded that Mr. Gerken, who was running in their direction, was on the attack, not trying to get away.
The Plaintiff further contends that Mr. Gerken was not threatening Det. Mitchell and Sgt. Shead with the knife. Pointing out that Mr. Gerken had one eye swollen shut, that the tactical team wore camouflage, and that the thick woods were dim, the Plaintiff claims that a reasonable jury could infer that "it was unlikely Mr. Gerken, as he was running, was able to spot Sgt. Shead and Det. Mitchell as they advanced toward him through the brush and, therefore, it was unlikely Mr. Gerken was running aggressively or menacingly toward Shead and Mitchell to attack them." Pl.'s Opp'n 25. This theory is highly speculative and lacks the evidentiary support needed to be considered a factual assertion.
Assessing the supportable facts in the light most favorable to the Plaintiff, Mr. Gerken was experiencing a mental health crisis and failed to drop the knife after being told repeatedly to do so over the course of almost seven hours. From the vantage of what the officers knew, Sgt. Shead was aware that Mr. Gerken had threatened to kill a child if she continued to look at him, that Sgt. Dunham had been cut trying to disarm Mr. Gerken, and that pepper spray and a Taser had been used by the first responders without success. Sgt. Shead also knew that Mr. Gerken was fit and capable of quick movement. Minutes before the tactical plan was implemented, Mr. Gerken had waved the knife and said, "I will cut you." Once on his feet, Mr. Gerken initially ran away from the fire hose spray, but then turned to his right. The situation unfolded in just minutes, and because Sgt. Shead lost sight of Mr. Gerken in the fire hose spray, he had little time to react. When his view cleared, Sgt. Shead saw Mr. Gerken, still armed with the knife, running in the direction of Det. Mitchell's advance. Perceiving Mr. Gerken to be about 15 feet away and an imminent threat to both Det. Mitchell and himself, Sgt. Shead fired. At the time he fired, Mr. Gerken was about 19 feet from Shead and about 18 feet from Mitchell.
The Plaintiff contends that no reasonable officer could have perceived an imminent threat to himself or others under these circumstances. The Plaintiff repeatedly argues that Mr. Gerken did not pose a real threat because Mr. Gerken's threats were merely the products of his mental illness. While Mr. Gerken's mental health condition should and did inform the police response, the fact that he might not have been capable of understanding or complying with orders to drop the knife did not make him less dangerous. This case is a far cry from the cases cited by the Plaintiff, see supra n.16, involving suicidal individuals who did not pose a threat to the officers.
Viewing the facts in the light most favorable to the Plaintiff, in the totality of the circumstances, the Plaintiff is unable to establish that no reasonable officer would have used lethal force in the situation Sgt. Shead found himself.
All three officers said that after Mr. Gerken had been shot by Sgt. Shead, they thought Mr. Gerken was attempting to get to his feet with the knife, and they all said that they felt he posed an imminent threat to officer safety.
The Plaintiff argues that once shot by Sgt. Shead, Mr. Gerken did not pose an imminent threat.
Pl.'s Opp'n 26-27 (internal citations omitted).
Skipping over whether the additional rounds were objectively reasonable, I focus on whether the right to be free from deadly force in these circumstances was clearly established, and whether Sgt. Grass, Det. Mitchell, and Sgt. Shead's actions were such that no reasonable officer in their position would have made the same choice. The question is whether any reasonable officer could have concluded that Mr. Gerken still posed an imminent threat after he was shot and had fallen.
In Berube v. Conley, 506 F.3d 79 (1st Cir. 2007), the First Circuit addressed a claim that the police should have stopped shooting once the assailant was initially shot and on the ground. On a dark and rainy night, Berube, intent on suicide, decided to "raise a little hell" first. Id. at 81. He began smashing car windows with a hammer in the Lewiston Police Department parking lot. Officer Conley, the first on the scene, called for backup. When Berube saw her, he ran at her screaming with an object, later determined to be a hammer, in his hand. She started backing away and commanded him to drop his weapon. When he ignored her command she shot at him from a distance of six or seven feet. Berube fell to his knees and attempted to get back up, and Officer Conley continued firing "til the threat ceased." Id. at 83. Two other officers, who arrived as backup, saw Berube either kneeling or laying and observed a metallic object in his hand. Believing that Berube might have a firearm, and that the shots that they had heard might have been from Berube, they also began firing at Berube.
Addressing the additional shots fired once Berube was down, the First Circuit stated:
Id. at 85. "While one might regret Conley's failure to stop shooting as soon as Berube went down, immunity encompasses `mistaken judgments.'" Id. (quoting Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
On the undisputed facts, Mr. Gerken had established himself as an unusually resilient individual. After pepper spray, Taser fire, an attempt by a game warden to wrest the knife from his grip, a blast from a fire hose, and being shot, Mr. Gerken still had hold of the knife. The light in the woods was dimming. Sgt. Grass was less than thirteen feet from Mr. Gerken. Despite orders to stop moving and stay down, the officers saw Mr. Gerken sitting up and making a lunging motion with the knife. The situation had been unfolding quickly, and now each officer was called on to make a split-second judgment.
Under Berube, the law was established that an officer need not perfectly calibrate the amount of force required to protect himself in an emergency situation. On these facts, under this law, the Plaintiff has not shown that no reasonable officer, confronted with this situation, would have made the same choice that Sgt. Grass, Sgt. Shead, and Det. Mitchell each made. Accordingly, I find that the individual Defendants are entitled to qualified immunity on the excessive force claims under § 1983. Because the MCRA uses the same standard for qualified immunity for an excessive force claim as the federal standard, no independent analysis is required for the parallel state claim. Smith v. Jackson, 463 F.Supp.2d 72, 81 (D. Me. 2006); see also Berube, 506 F.3d at 85. The motion for summary judgment on Counts Two and Five is granted.
In Counts Six and Seven, the Plaintiff asserts a wrongful death claim and a conscious pain and suffering claim against the MSP and the individual defendants.
In Count Four, the Plaintiff asserts that the MSP is liable for disability discrimination under the Americans with Disabilities Act ("
Title II of the ADA addresses discrimination by government entities and provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To prevail on a Title II ADA claim, the plaintiff must show:
Buchanan v. Maine 469 F.3d 158, 170-71 (1st Cir. 2006) (quoting Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000)).
At least two theories have emerged supporting disability discrimination claims arising out of arrests. See Gohier v. Enright, 186 F.3d 1216, 1220 (10th Cir. 1999). The first occurs where police misperceive the effects of an individual's disability as criminal activity and make an arrest based on their misperception. Id. (citing Lewis v. Truitt, 960 F.Supp. 175, 176-77 (S.D. Ind. 1997) (deaf individual mistaken for someone resisting arrest); Jackson v. Town of Sanford, No. 94-12-PH, 1994 WL 589617, at *1 (D. Me. 1994) (arrest of stroke victim for drunk driving)). To the extent that the Plaintiff is pursuing a theory that the police wrongfully perceived Mr. Gerken's conduct as criminal, that claim fails. This is not a case where the police misperceived the conduct of a disabled person as criminal. Mr. Gerken had threatened to kill an eight-year-old, and he refused to drop his knife, resulting in Sgt. Dunham's injury. The police correctly perceived Mr. Gerken's conduct as criminal, as did the judicial officer who signed the warrant for Mr. Gerken's arrest. Gohier, 186 F.3d at 1222, n.4. The wrongful arrest doctrine does not apply where police officers act on an accurate perception of the suspect's conduct as unlawful or posing a risk to the public. See,
The second theory supporting a disability discrimination claim occurs where police effectuate a lawful arrest based on criminal conduct unrelated to a person's disability, but they fail to accommodate the disability during the investigation or arrest process, resulting in the individual suffering greater injury than other arrestees. Gohier. 186 F.3d at 1222 (citing Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir. 1998) (reversing dismissal of ADA suit alleging police had discriminated against arrestee by transporting him to police station in vehicle unequipped to safely accommodate wheelchairs)).
There is a third situation that is "logically intermediate between the two archetypes envisioned by those theories," where the police effectuate a lawful arrest based on criminal conduct that is related to a person's disability. Gohier, 186 F.3d at 1221. In Gohier, a police officer encountered a mentally ill individual who was wielding a knife-like object. A tense encounter ensued during which the officer concluded that the individual was mentally ill. The individual aggressively approached and lunged at the officer, and the officer fatally shot him. The Tenth Circuit stated:
Id. (quoting Patrice v. Murphy, 43 F.Supp.2d 1156, 1159 (W.D. Wash. 1999)). This case fits in this third category.
There is division within the Circuits over whether Title II of the ADA applies at all to encounters with violent, mentally ill individuals. The Fifth Circuit has held that:
Hainze v. Richards, 207 F.3d 795, 801 (5th Cir. 2000). In contrast, the Fourth Circuit takes the view that exigent circumstances factor into whether the requested modification is reasonable under the totality of the circumstances. Waller ex rel. Estate of Hunt v. Danville, 556 F.3d 171, 175 (4th Cir. 2009);
As for controlling authority on the question, the Supreme Court has yet to decide the issue.
Regardless of whether there is a per se rule that the ADA does not apply in exigent circumstances or whether exigency is one factor among many to determine whether a requested accommodation is reasonable, the threshold question is whether exigent circumstances existed. The Plaintiff argues that exigent circumstances did not exist leading up to the execution of the tactical plan and that the MSP's militaristic response unreasonably exacerbated Mr. Gerken's mental health crisis. The Plaintiff's experts opined that, under the totality of the circumstances, the collective law enforcement conduct
I agree with the Defendants that the MSP was faced with exigent circumstances and that they had a genuine concern for human safety. As the Fourth Circuit stated in Waller, "exigency is not confined to split-second circumstances. Although the officers did not face an immediate crisis, the situation was nonetheless unstable." Waller, 556 F.3d at 175. While the Plaintiff correctly distinguishes Buchanan (where a deputy was being stabbed) and Vincent (where the individual possessed a firearm in a crowded public area), he does not fairly distinguish Norton. Plaintiff states that, in contrast to Norton, Mr. Gerken was not holding a hostage. Pl.'s Opp'n 31. But at the time Norton emerged from his house wielding two knives, there was no concern about the safety of a hostage, who had already been released. In fact, the situation in Norton is similar to the situation presented here.
On the facts before me, taken in the light most favorable to the Plaintiff, no reasonable juror could conclude that the situation faced by the MSP did not involve exigent circumstances and a threat to human safety. The MSP did not have the option of packing up and going home when it got dark. There is no dispute that Mr. Gerken was armed with a knife, that he was disturbed, that he had earlier told an 8-year-old to stop looking at him or he would kill her, that he had refused to drop the knife for the first responders, that he had resisted Sgt. Dunham's attempt to disarm him, and that he had withstood pepper spray and an attempt to Taser him. Except for the odd outburst, Mr. Gerken remained unresponsive, for over six hours of attempted negotiations, and he never once let go of the knife. It is undisputed that shortly before the tactical plan was executed, Mr. Gerken said, "I will cut you" as he waved his knife in the air. Although the Plaintiff points out that everybody was safe as long as Mr. Gerken lay on the ground, no one knew if and when Mr. Gerken would get up. To say that Mr. Gerken might still be there today if the police had not used the fire hose is speculative. On these facts, no reasonable juror could conclude that there was no exigency.
Many of the Plaintiff's accommodations were tried without success or rejected as unworkable. There is no dispute that negotiations extended over six hours. The Plaintiff offers no facts to suggest that lights were available that could have effectively lit the forest and allowed for further negotiations. Nor does the Plaintiff offer facts to rebut [redacted]. The Plaintiff has not developed facts about whether nets and tranquilizers would have been effective under the circumstances or whether the materials to accomplish such a capture were available. One gets the distinct impression that had these other tactics been unsuccessfully tried, the Plaintiff would be arguing that the MSP should have used a fire hose.
Even under the totality of the circumstances test set forth in Waller, the record indicates that the officers on the scene provided Mr. Gerken with reasonable accommodations.
Count Three asserts that the MSP violated the ADA through its failure to train officers to work with the mentally ill. The Plaintiff is not pursuing a failure to train claim against the MSP under § 1983, and is proceeding exclusively under the ADA for her failure to train claim. Pl.'s Opp'n 10 n.2. A stand-alone failure to train claim under the ADA is not well established;
In light of Buchanan, this failure to train claim turns only on whether the MSP provided officers with training on the
For the reasons stated above, the Court
SO ORDERED.
In Connor v. Thompson, 647 Fed.Appx. 231 (4th Cir. 2016) an officer who was called to transport a drunken, suicidal individual to the mental hospital met an man holding a paring knife at the top of the front steps where he was living. The officer ordered him to drop the knife, and he stumbled down the front steps still holding the knife. Although he made no aggressive move toward the officer, the officer fired his weapon twice and killed the man. The incident was over in minutes. In Estate of Escobedo v. Bender, 600 F.3d 770 (7th Cir. 2010), officers used an excessive amount of tear gas and flash bang grenades to extricate a non-resisting man who had committed no crime from his apartment when the individual had threatened to harm only himself. In Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005), police shot a polyurethane baton, which was capable of lethal force if fired at close range, at a suicidal man who had committed no crime, did not pose a threat to the police, and had only been given 15 to 30 seconds to comply with the order to drop the knife that he held to his heart. In Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001) an officer, without waiting for the negotiation team or providing a warning, fired a lead-filled beanbag, which was considered lethal at close range, at an unarmed, suicidal individual who was walking toward the officer, had not attacked anyone, generally obeyed instructions given him by various police officers, and did not commit any serious offenses. In Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir. 2010), the police responded to a call that an individual — known by the police to be psychotic but not criminal — had wandered into a partially built new home wearing nothing but a bathrobe. The officer, who was familiar with the individual from previous delusional episodes, asked the individual to come speak with him. Instead, the individual told the officer that he lived at the property and asked the officer to leave. After this brief dialogue, the individual started back toward the house. The officer fired his Taser between six and twelve times, killing the man.
All of these cases are distinguishable. None involved an individual threatening the police or actively resisting arrest as Mr. Gerken had. With the exception of the Escobedo case, crisis negotiation teams had not been given a chance to resolve the situation. In Escobedo, negotiators were involved, but the communication between the negotiators and the site commander had broken down. The duration of the encounters in each of these cases were also considerably shorter, many occurring in just minutes.
The Plaintiff also contends that since the forensic examiners found the knife six feet from Mr. Gerken's body, a jury could conclude that Mr. Gerken was unarmed when shot. Pl.'s Opp'n 27. This theory is completely undercut by the Plaintiff's admission that Mr. Gerken had the knife when he was shot. SMF ¶ 222.
Gohier, 186 F.3d at 1221 (alterations in original) (quoting H.R. Rep. No. 101-485, pt. III (1990)).
