USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1473
JOHN M. HEGARTY AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF KATHERINE A. HEGARTY,
Plaintiff, Appellee,
v.
SOMERSET COUNTY, RENE GUAY, WILFRED HINES,
THOMAS GIROUX, JR., WILLIAM CRAWFORD, JR.,
Defendants, Appellants.
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No. 94-1474
JOHN M. HEGARTY AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF KATHERINE A. HEGARTY,
Plaintiff, Appellee,
v.
SOMERSET COUNTY, ET AL.,
Defendants, Appellants.
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No. 94-1517
JOHN M. HEGARTY, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF
KATHERINE A. HEGARTY,
Plaintiff, Appellant,
v.
SOMERSET COUNTY, ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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____________________
Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and McAuliffe,* District Judge.
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William R. Fisher, with whom Monaghan, Leahy, Hochadel & Libby
_________________ ___________________________________
was on brief for appellants Guay, Hines, Giroux and Crawford and
defendant-appellee Spencer Havey.
Frederick J. Badger, Jr., with whom Ann M. Murray and Richardson,
________________________ _____________ ___________
Troubh & Badger were on brief for appellant Wright.
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Julian L. Sweet, with whom Jeffrey A. Thaler and Berman &
_________________ ___________________ _________
Simmons, P.A. were on brief for plaintiff/appellant Hegarty.
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May 17, 1995
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*Of the District of New Hampshire, sitting by designation.
2
CYR, Circuit Judge. On May 15, 1992, state and county
CYR, Circuit Judge.
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law enforcement officers forcibly entered a remote cabin in the
Maine woods, without a warrant, and mortally wounded plaintiff's
decedent, Katherine A. Hegarty, while attempting to arrest her
for recklessly endangering the safety of four campers. Plaintiff
John M. Hegarty initiated the present action in federal district
court for compensatory and punitive damages against the defendant
officers and their respective supervisors, based on alleged
violations of the Hegartys' statutory and constitutional rights.
See 42 U.S.C. 1983 (1992); Me. Rev. Stat. Ann. tit. 5, 4682
___
(1992). After rejecting their qualified immunity claims, the
district court determined that the defendant officers were
potentially liable for punitive damages, and the officers initi-
ated an interlocutory appeal. Plaintiff John M. Hegarty in turn
cross-appealed from district court orders granting summary
judgment in favor of Somerset County Sheriff Spencer Havey on
qualified immunity grounds and disallowing plaintiff's section
1983 claim for compensatory damages for loss of spousal consor-
tium.
I
I
BACKGROUND1
BACKGROUND
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A. The Warrantless Entry
A. The Warrantless Entry
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1The relevant facts are related in the light most favorable
1
to the plaintiff, the party resisting summary judgment. Velez-
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Gomez v. SMA Life Assurance Co., 8 F.3d 873, 874-75 (1st Cir.
_____ _______________________
1993).
3
3
During the morning of the fateful day, two vehicles,
containing four campers, entered through a gate onto woodlands
owned by a paper company in Jackman, Maine, and proceeded to
their assigned campsite about one and one-half miles past the
gate and 200 yards or so beyond the Hegarty cabin. At around
9:00 that evening, Katherine Hegarty became extremely agitated
when she saw the campers returning to their campsite for the
night, and began screaming that they had trespassed on her
property. The campers assured her that the caretaker had given
them permission to use the campsite and they would be leaving the
next morning. To which Katherine responded: "Only if you make
it until morning." She then retrieved a rifle from inside the
cabin and fired six rounds from the porch in the direction of the
campers, who immediately took cover behind their trucks and boat.
During the next hour or so, Katherine reloaded her
rifle several times, firing approximately twenty-five additional
rounds in the direction of the campers before eventually yielding
to their pleas for permission to depart in safety. Leaving their
other belongings behind, the campers drove their vehicles quickly
past the cabin, where they saw Katherine on the porch, rifle in
hand. Although no further shots were fired, Katherine followed
the campers in her truck beyond the entrance gate, then turned
back in the direction of her cabin.
Upon their arrival at a truck stop located on Route
201, approximately two miles from the woods road entrance gate,
4
4
the campers immediately placed a telephone call to the Somerset
County Sheriff's Department. Their report described a harrowing
encounter with an intoxicated, distraught ("flipped out") and
armed woman who might pursue them to the truck stop and shoot at
them. Four law enforcement officers were dispatched to the truck
stop Maine State Trooper Gary Wright and three Somerset County
Sheriff's Department officers: Patrol Sergeant Wilfred Hines,
Deputy Sheriff Rene Guay, and Reserve Officer Thomas Giroux, Jr.
After briefly interviewing the four campers, the
officers decided that the suspect had committed at least one
offense by shooting at the campers. See Me. Rev. Stat. Ann. tit.
___
17-A, 211 (1994) (reckless endangerment). Moreover, from the
description the campers gave of the woman, the locations of the
cabin and the campsite, and from their knowledge of the area, the
officers concluded that Katherine Hegarty was their suspect. The
officers knew that Katherine was an experienced hunter and a
licensed Maine guide, with a reputation as a "crack shot," and
that she kept several powerful firearms at her cabin. Further,
the officers knew she had some history of emotional instability
(i.e., a nervous "breakdown" in 1991, requiring sedation, physi-
____
cal restraints and a brief period of involuntary hospitaliza-
tion), substance abuse (two arrests for operating a motor vehicle
while under the influence of alcohol ("OUI") in 1991), and
incidents of erratic, violent behavior directed at law enforce-
ment personnel kicking and throwing punches at State Trooper
Gary Wright, asking irrational questions, and exhibiting extreme
5
5
mood swings (alternately screaming and laughing) at the time of
her first OUI arrest, and an assault/harassment against Trooper
Wright at his residence shortly after the same arrest. For these
reasons, the officers concluded that they should arrest Katherine
immediately, without obtaining a warrant or informing her of
their true intentions until after she had been restrained, for
fear that she would become violent.
At around midnight, the officers rendezvoused with a
fifth officer, Sergeant William Crawford, Jr., of the Somerset
County Sheriff's Department, drove about three miles and parked
their cruisers approximately a mile from the Hegarty cabin.
Their sporadic discussions since meeting at the truck stop had
led to a skeletal plan of action for effecting the arrest.
Concerned that Katherine might be waiting for them somewhere in
the vicinity, they proceeded on foot toward her cabin, led by
Trooper Wright with a police dog in an effort to forewarn
themselves of Katherine's presence without heralding their
approach. As they neared, at approximately 12:15 a.m., the
officers observed Katherine's truck in front of the darkened
cabin and heard a radio blaring music from inside. The clearing
surrounding the cabin was plainly visible in the moonlight, but
the cabin interior was not illuminated.
Following a quick visual inspection of the cabin site
and the interior of the Hegarty truck, four officers approached
unannounced and placed themselves along the outer cabin walls.
The fifth officer, Thomas Giroux, Jr., who was better acquainted
6
6
with Katherine Hegarty, gave a prearranged signal to the other
officers from behind a tree across the road in front of the
cabin. Giroux began calling to Katherine by name first
identifying himself and then expressing concern for her safety
in an attempt to coax her from the cabin to speak with him.
Giroux heard no response above the blaring radio. Sergeant Hines
then pounded on the cabin door and identified himself as a deputy
sheriff. He received no response.
Meanwhile, Sergeant Crawford, who had worked his way
around to the rear of the cabin, shined a flashlight into a
darkened window and saw a fully-clothed woman lying on a bed,
with a rifle astride her chest. When the woman began to raise
the rifle in his direction, Crawford dove for cover, yelling out
to the other officers that there was an armed person inside the
cabin. Katherine soon asked Crawford to identify himself. After
he did so, Crawford heard Katherine leave the bedroom and move
toward the front of the cabin. The radio soon became inaudible.
As Katherine walked about inside the darkened cabin,
she kept asking what the officers were doing there, and requested
that they leave her property. The officers replied that they
were investigating a report of campsite burglaries in the area,
were concerned for her safety, and wanted her to come out of the
cabin so she could speak with them. Laughing intermittently
during these exchanges, Katherine ultimately rejected their
requests stating that she had seen no one suspicious.
7
7
Deputy Sheriff Rene Guay posted outside the closed
window at the front of the cabin next saw Katherine face-to-
face as she peered out the window from a kneeling position on a
nearby couch. When Guay trained his flashlight on her, Katherine
said, "I can see you." At this time, Guay observed that Kather-
ine had no weapon in hand nor within the vicinity illuminated by
his flashlight. Guay immediately communicated this information
to Sergeant Hines and Trooper Wright, who were posted on either
side of the front door, then gave them a signal to "go."
Sergeant Hines proceeded to break in the front door,
but a chain lock momentarily delayed entry. From a crouched
position outside the front window, Guay saw Katherine pick up a
rifle beside the couch and begin to raise it in the direction of
Hines and Wright, who were about to break through the front door.
As she continued to raise the rifle in their direction, the
officers ordered her to drop it. Katherine paid no heed and was
fatally wounded by the officers before she could fire a shot.
B. The District Court Proceedings
B. The District Court Proceedings
______________________________
In January 1993, John Hegarty, in his individual and
representative capacities, filed a four-count complaint in the
District of Maine against, inter alia, the five officers and
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their respective supervisors, alleging deprivations of the
Hegartys' Fourth and Fourteenth Amendments rights, see 42 U.S.C.
___
1983 (1994), and their state and federal statutory and consti-
tutional rights under the Maine Civil Rights Act ("MCRA"), Me.
8
8
Rev. Stat. Ann. tit. 5, 4682 (1994).2 All defendants moved
for summary judgment, asserting qualified immunity from suit
under section 1983 and the MCRA, and contending that neither
punitive damages, nor compensatory damages for loss of spousal
consortium, are recoverable against them under section 1983 or
the MCRA.
The district court ruled, inter alia, that (1) the five
_____ ____
officers at the scene were not immune from suit under either
section 1983 or the MCRA, because no objectively reasonable
police officer could have concluded that the circumstances
confronting these officers gave rise to an exigency sufficient to
justify forcing a warrantless entry into the Hegarty cabin for
the purpose of effecting Katherine's immediate arrest; (2)
punitive damages would be recoverable were a jury to find that
the officers at the scene acted with reckless indifference; (3)
Somerset County Sheriff Spencer Havey was entitled to qualified
immunity from suit relating to any "supervisory liability," since
he had no advance notice that officer training was deficient, and
since his subsequent conduct, though "troublesome," did not
constitute "gross or reckless indifference"; and (4) compensatory
damages for loss of consortium were not recoverable absent proof
that the officers' conduct had been directed at John Hegarty
rather than at his deceased spouse alone.
The officers promptly took interlocutory appeals from
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2No appeal was taken from the district court judgment
dismissing the wrongful death, see Me. Rev. Stat. Ann. tit. 18-A,
___
2-804 (1994), and common-law trespass claims.
9
9
the first and second district court rulings. See Febus-Rodriguez
___ _______________
v. Betancourt-Lebron, 14 F.3d 87, 90 (1st Cir. 1994) (disallow-
_________________
ance of qualified immunity claim is "final" appealable order
under Cohen "collateral order" doctrine). After the district
_____
court directed that final judgment enter pursuant to Fed. R. Civ.
P. 54(b) on its third and fourth rulings, plaintiff John Hegarty
cross-appealed.
II
II
DISCUSSION
DISCUSSION
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A. The Officers' Immunity Claims
A. The Officers' Immunity Claims
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1. Standard of Review
1. Standard of Review
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We review a summary judgment order de novo, under the
__ ____
identical criteria governing the district court, to determine
whether "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c); see Jirau-Bernal v. Agrait, 37 F.3d
___ ____________ ______
1, 3 (1st Cir. 1994). All contested facts are viewed in the
light most favorable to the party resisting summary judgment.
Id.
___
2. The Qualified Immunity Doctrine
2. The Qualified Immunity Doctrine
_______________________________
Like other government officials performing discretion-
ary functions, law enforcement officers hailed into court in
their individual capacities to respond in damages are entitled to
qualified immunity from suit in civil rights actions under
10
10
section 1983, provided their conduct did "not violate clearly
established statutory or constitutional rights of which a reason-
able [police officer] would have known." Harlow v. Fitzgerald,
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457 U.S. 800, 818 (1982); Burns v. Loranger, 907 F.2d 233, 235
_____ ________
(1st Cir. 1990). In Anderson v. Creighton, 483 U.S. 635 (1987),
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the Supreme Court refined the focus of the policy considerations
underlying the qualified immunity doctrine.
When government officials abuse their
offices, "action[s] for damages may offer the
only realistic avenue for vindication of
constitutional guarantees." Harlow v.
______
Fitzgerald, 457 U.S., at 814. On the other
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hand, permitting damages suits against gov-
ernment officials can entail substantial
social costs, including the risk that fear of
personal monetary liability and harassing
litigation will unduly inhibit officials in
the discharge of their duties. Ibid. Our
____
cases have accommodated these conflicting
concerns by generally providing government
officials performing discretionary functions
with a qualified immunity, shielding them
from civil damages liability as long as their
actions could reasonably have been thought
consistent with the rights they are alleged
to have violated. See, e.g., Malley v. Brig-
___ ____ ______ _____
gs, 475 U.S. 335, 341 (1986) . . . .
__
Anderson, 483 U.S. at 638.3 As this court has explained,
________
appellate assessment of [a] qualified immuni-
ty claim is apportioned into two analytic
components. First, if the right asserted by
the plaintiff was "clearly established" at
the time of its alleged violation, we are
required to assume that the right was recog-
nized by the defendant official, see Harlow,
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457 U.S. at 818, 102 S. Ct. at 2738; Rodri-
______
guez v. Comas, 888 F.2d 899, 901 (1st Cir.
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1989); second, we will deny the immunity
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3The same "qualified immunity" analysis applies to the MCRA
3
claims. See Jenness v. Nickerson, 637 A.2d 1152, 1159 (Me.
___ _______ _________
1994).
11
11
claim if a reasonable official situated in
the same circumstances should have understood
that the challenged conduct violated that
established right, see Anderson, 483 U.S. at
___ ________
640-41, 107 S. Ct. at 3039; Rodriguez, 888
_________
F.2d at 901.
Burns, 907 F.2d at 235-36.
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The Hegartys correctly contend, of course, that the
Fourth and Fourteenth Amendments to the United States Constitu-
tion prohibited a warrantless entry into the Hegarty cabin to
effect Katherine's arrest, except in exigent circumstances and
with probable cause. See Welsh v. Wisconsin, 466 U.S. 740, 749
___ _____ _________
(1984); Payton v. New York, 445 U.S. 573, 586 (1980); Buenrostro
______ ________ __________
v. Collazo, 973 F.2d 39, 43 (1st Cir. 1992). Indeed, the consti-
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tutional rights allegedly violated were clearly established long
before this tragic incident occurred. Accordingly, the defendant
officers are deemed to have been on notice of the relevant con-
stitutional protections constraining their actions. Burns, 907
_____
F.2d at 235-36. Therefore, qualified immunity affords the defen-
dant officers no safe haven unless an objectively reasonable
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officer, similarly situated, could have believed that the chal-
_____ ____ ________
lenged police conduct did not violate the Hegartys' constitution-
___
al rights. Id. at 236.
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Thus, the qualified immunity inquiry does not depend on
whether the warrantless entry was constitutional, but allows as
well for the inevitable reality that "law enforcement officials
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will in some cases reasonably but mistakenly conclude that [their
____ __ ____ _____ __________ ___ __________ ________
conduct] is [constitutional], and . . . that . . . those offi-
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cials like other officials who act in ways they reasonably
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12
12
believe to be lawful should not be held personally liable."
______ ___ __ ____ __________ ______
Anderson, 483 U.S. at 641 (emphasis added); Burns, 907 F.2d at
________ _____
237. In other words, qualified immunity sweeps so broadly that
"all but the plainly incompetent or those who knowingly violate
the law" are protected from civil rights suits for money damages.
Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v.
______ ______ ______
Briggs, 475 U.S. 335, 341 (1986)); cf. Roy v. City of Lewiston,
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42 F.3d 691, 695 (1st Cir. 1994) ("[T]he Supreme Court's standard
of reasonableness is comparatively generous to the police where
potential danger, emergency conditions or other exigent circum-
stances are present.").
Lastly, we assess the challenged police conduct with a
view to determining its "objective legal reasonableness," Ander-
_________ _____ ______
son, 483 U.S. at 639 (emphasis added), which entails two pivotal
___
features. First, the qualified immunity inquiry takes place
prior to trial, on motion for summary judgment, see Mitchell v.
___ ________
Forsyth, 472 U.S. 511, 526 (1985) (qualified immunity provides a
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shield against the burdens of litigation, not merely a defense
_______ __ __________ ___ ______
against liability for money damages), and requires no fact-
finding, only a ruling of law strictly for resolution by the
court, see Amsden v. Moran, 904 F.2d 748, 752-53 (1st Cir. 1990),
___ ______ _____
cert. denied, 498 U.S. 1041 (1991); Hall v. Ochs, 817 F.2d 920,
_____ ______ ____ ____
924 (1st Cir. 1987). Thus, under the policy-driven "objective
legal reasonableness" analysis governing our inquiry, even expert
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testimony relating to appropriate police procedures in the cir-
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cumstances confronting the officers may not afford certain
13
13
insulation against summary judgment in the "qualified immunity"
context.
We turn then to consider whether an objectively reason-
able police officer could have believed in the circumstances
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prevailing before Katherine Hegarty was mortally wounded that
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"exigent circumstances" and "probable cause" existed for the
forcible, warrantless, nighttime entry into the Hegarty cabin.
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14
3. The Qualified Immunity Analysis
3. The Qualified Immunity Analysis
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(i) Probable Cause
(i) Probable Cause
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The "probable cause" requirement was met if the offi-
cers at the scene collectively possessed, Burns, 905 F.2d at 236
_____
n.7, "reasonably trustworthy information [sufficient] to warrant
a prudent [person] in believing that [Katherine Hegarty] had com-
mitted or was committing a [criminal] offense." Beck v. Ohio,
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379 U.S. 89, 91 (1964). As the Supreme Court has explained,
"[i]n dealing with probable cause, . . . as the very name im-
plies, we deal with probabilities. These are not technical; they
are the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act."
Illinois v. Gates, 462 U.S. 213, 231 (1983) (quoting Brinegar v.
________ _____ ________
United States, 338 U.S. 160, 176 (1949)). See also Burns, 907
______________ ___ ____ _____
F.2d at 236 (quoting Gates).
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On appeal, the plaintiff contests the assumption
indulged arguendo by the district court that there was proba-
________
ble cause for Katherine Hegarty's arrest. He argues that no
competent officer in these circumstances reasonably could have
believed that Katherine a "crack shot" intended to harm the
campers, especially since no bullets struck the trucks and boat
behind which the campers took cover. We do not agree. Rather,
based on the information that Katherine may have been intoxicat-
ed, an objectively reasonable officer could have concluded that
her errant aim was not attributable to a lack of intent to
endanger. Consequently, we conclude, based on the "reasonably
15
15
trustworthy information" available to the defendant officers at
the scene, see supra pp. 3-8, that an objectively reasonable
___ _____
police officer could have formed the belief that there was
probable cause to arrest Katherine Hegarty for the offense of
reckless endangerment. See, e.g., Me. Rev. Stat. Ann. tit. 17-A,
___ ____
211 ("A person is guilty of reckless conduct if he recklessly
creates a substantial risk of serious bodily injury to another
person."); 15 (authorizing warrantless arrests for reckless
conduct with a firearm).
(ii) Exigent Circumstances
(ii) Exigent Circumstances
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A warrantless, forcible entry of a private residence is
permissible in certain limited circumstances, including: (1)
"hot pursuit" of a fleeing felon; (2) threatened destruction of
evidence inside a residence before a warrant can be obtained; (3)
a risk that the suspect may escape from the residence undetected;
or (4) a threat, posed by a suspect, to the lives or safety of
the public, the police officers, or to herself. See Minnesota v.
___ _________
Olson, 495 U.S. 91, 100 (1990). We have held that a cognizable
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exigency must present a "compelling necessity for immediate
action that w[ould] not brook the delay of obtaining a warrant."
United States v. Almonte, 952 F.2d 20, 22 (1st Cir. 1991), cert.
_____________ _______ _____
denied, 112 S. Ct. 1776 (1992) (quoting United States v. Adams,
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621 F.2d 41, 44 (1st Cir. 1980)). Conversely, certain mitigating
factors may undermine a showing of exigent circumstances; for
example, where the criminal offense was not sufficiently serious
(a traffic violation), Welsh, 466 U.S. at 753 n.6, the opportuni-
_____
16
16
ty afforded the suspect for peaceable surrender was inadequate,
or the entry occurred in the nighttime. See generally United
___ _________ ______
States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980).
______ _____
The defendant officers challenge the district court
ruling that no competent police officer could have formed an
objectively reasonable belief that "exigent circumstances" justi-
fied a forcible, warrantless entry for the purpose of effecting
Katherine Hegarty's immediate arrest. They argue that it was
reasonable to believe based on the reasonably trustworthy
information available to them at the time that Katherine posed
an imminent and unpredictable threat to their safety, and to
herself.
Earlier in the day, Katherine had engaged in violent,
life-threatening conduct against peaceable, unarmed campers. She
was known to have demonstrated emotional instability and hostili-
ty toward law enforcement personnel in the past, which had
prompted her to attack and threaten State Trooper Wright on two
separate occasions. At the cabin, she pointed a rifle directly
at Sergeant Crawford, exhibited irrational and possibly suicidal
behavior (laughing "like a witch") in response to the officers'
repeated requests that she discuss matters with them. The defen-
dant officers maintain that she could have decided at any time to
fire at them through the "paper thin" cabin walls or as they
attempted to retreat across the moonlit clearing. Consequently,
the officers contend, there was an ongoing exigency which made it
reasonable to attempt to disarm Katherine whenever it appeared
17
17
least likely that she possessed or could retrieve a weapon.4
Plaintiff acknowledges that the officers did not use
___
excessive force to protect themselves after they forcibly entered
the cabin and were confronted by Katherine, with rifle raised.
Cf. Roy, 42 F.3d at 695-96. Rather, he contends that their
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precipitous and ill-conceived strategy arrived at before the
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officers ever left the truck stop deviated unreasonably from
standard police tactics in crisis situations and inexorably led
to Katherine's death. Cf. United States v. Curzi, 867 F.2d 36,
___ _____________ _____
43 n.6 (1st Cir. 1989) (police may not manipulate events to
create an "exigency" justifying warrantless entry).
William McClaran, plaintiff's expert, testified that
the defendant officers deviated in two fundamental respects from
standard police practice in a crisis. First, they failed to
define their exact "chain of command" before setting out to
effect Katherine's arrest. Consequently, each officer at the
scene was left to determine his own movements on an ad hoc basis
__ ___
("freelancing"), without adequate coordination among them.5
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4Reserve Officer Giroux and Sergeant Crawford, who played no
direct role in the forcible entry and were responding to orders,
claim entitlement to qualified immunity by reason of their
"lesser" participation. Given our holding, we need not address
their claim.
5McClaran pointed to several instances of "freelancing" at
the Hegarty cabin. First, although Officer Giroux alone had been
charged with initiating communications with Katherine, Sergeant
Hines unilaterally deviated from the arrangement by banging on
the cabin door. Second, the failure to coordinate their move-
ments before arriving at the scene created the risk that the
officers might be caught in their own cross-fire. Third, the
officers gave Katherine confusingly different explanations for
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18
Second, the officers eschewed accepted rules of "containment" by
needlessly placing themselves in peril against the "paper thin"
outer walls of the cabin. Plaintiff opines that upon approaching
the cabin, the officers harbored a reasonable belief that Kather-
ine was inside, given the music blaring from within the cabin and
the presence of her truck in the cabin clearing. Consequently,
and since the officers knew Katherine was armed and appeared to
be acting irrationally, two officers should have taken concealed
positions at the edge of the woods surrounding the cabin clear-
ing, thereby cutting off any attempted escape. Thereafter, from
a safer distance, other officers could have begun the effort to
coax Katherine to come outside, while another officer returned to
the police cruisers and radioed for assistance from the Maine
State Tactical Team.
We must isolate all reasonably reliable information
collectively known to the officers at the time their challenged
conduct occurred, without indulging hindsight, see Hunter, 502
_______ _________ _________ ___ ______
U.S. at 227, to determine whether an "objectively reasonable
officer," with the identical information, could have concluded
_____
that there were exigent circumstances sufficient to support an
immediate forcible entry of the Hegarty cabin to effect Kath-
erine's warrantless arrest. See Graham v. Connor, 490 U.S. 386,
___ ______ ______
396 (1989). Any genuine dispute as to what the officers knew or
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their presence at the cabin. Finally, the officers agreed that
should a forcible entry become necessary, Sergeant Hines would
enter first, whereas in fact a subordinate officer (Guay) ended
up giving the irrepealable signal to launch the forcible entry.
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19
did must be resolved in the plaintiff's favor. See Fonte v.
___ ___ _____
Collins, 898 F.2d 284, 285 (1st Cir. 1990). Even then, however,
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summary judgment for the defendant officers would be appropriate
if any such factual dispute were immaterial as a matter of law;
that is, if it would not alter the required analysis as to the
"legal reasonableness" of their conduct. See, e.g., Prokey v.
_____ ___ ____ ______
Watkins, 942 F.2d 67, 73 (1st Cir. 1991) (citing cases in which
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material factual disputes precluded summary judgment on qualified
immunity claim); see also Cameron v. Seitz, 38 F.3d 264, 273 n.2
___ ____ _______ _____
(6th Cir. 1994) (same).6
Following a careful examination of the applicable law
and all competent evidence presented to the district court at
summary judgment, we conclude that the benchmark against which
plaintiff would have us evaluate the challenged police conduct is
impermissibly stringent for the qualified immunity context, since
it fails to acknowledge an overarching reality confronting the
officers at the most critical moment of decision; viz., until
___
Sergeant Crawford saw Katherine Hegarty through the bedroom
window of the cabin, there was no conclusive evidence that their
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suspect had been located or contained at all.
_______ ___ ____ _______ __ _________ __ ___
The officers initially devised a "plan" which they
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6We need to note the obvious as well. Even though the
isolation of the Hegarty cabin and the death of Katherine Hegarty
dictate that virtually all relevant evidence derives exclusively
from the officers at the scene, see Scott v. Henrich, 39 F.3d
___ _____ _______
912, 915 (9th Cir. 1994) ("the officer defendant is often the
only surviving eyewitness" in qualified immunity cases), summary
judgment nonetheless must be granted absent a genuine dispute as
to a material issue. See Jirau-Bernal, 37 F.3d at 3.
___ ____________
20
20
characterized as "locate, identify, contain, negotiate, and
arrest." Obviously, "location" and "identification" would be
imperative before any other element in their plan could proceed.
______
The officers knew that Katherine had fired approximately thirty
rounds toward the campers earlier in the evening. And, in
addition to their collective knowledge of her erratic, unlawful
behavior in the recent past, the officers had learned from the
campers that Katherine was last seen driving her truck. A
_______ ___ _____
competent police officer in these circumstances possessed of
this disturbing information certainly could harbor an objec-
tively reasonable concern that Katherine might yet remain mobile,
______
thereby posing a continuing danger to other persons in the
__ ___
vicinity.
________
Several other campsites in the vicinity of the Hegarty
cabin were occupied, and without knowing the precise motivation
for Katherine's unprovoked, armed response to the peaceable
presence of the four campers earlier in the evening, an objec-
tively reasonable officer prudently could presume that other
campers might be at similar risk. In fact, their use of the
police dog while proceeding along the woods road toward the cabin
attests to the officers' alertness to the possibility that
Katherine could be lying in wait in the woods. Deciding not to
take the risk attendant upon the delay necessarily entailed in
obtaining a warrant, the officers accordingly placed top priority
on conclusively locating their suspect at the earliest possible
____________ ________
time so as to minimize the threat posed to the safety of other
21
21
campers. See Olson, 495 U.S. at 100 (exigent circumstances
___ _____
include the need to safeguard against threats to life or safety
of others); Almonte, 952 F.2d at 22.7
_______
Quite contrary to the major premise for William
McClaran's expert opinion, by the time they arrived at the
Hegarty cabin the officers had received decidedly mixed signals
_____
concerning their suspect's location. The parked truck suggested
that Katherine might be inside the cabin, but the lack of artifi-
cial illumination suggested otherwise. The blaring music did not
conclusively disprove either hypothesis. Nor had Katherine been
seen or heard entering or moving about inside the cabin. Thus,
it was in no sense improbable that Katherine, a licensed guide
and experienced hunter, had left her vehicle and departed the
cabin site on foot.
Nor was the alternative police strategy posited by Mr.
McClaran without its shortcomings. Of course, had the officers
chosen to cordon off the cabin from a "safe" distance, and begun
calling out to Katherine in the hope they might negotiate her
surrender and had she responded the "containment" phase
___ ___ ___ _________
could have proceeded apace. On the other hand, had she simply
failed to respond either because she could not hear their
calls above the blaring music, or because she had fully expected
them to investigate the campers' allegations and wanted to keep
_________________________________________________________________
7The exigency created by the realistic danger the unlocated
suspect posed to other campers in the vicinity likewise substan-
tially mitigated an aggravating factor noted by the district
court: the fact that the warrantless entry took place at night.
22
22
them off guard the officers still would be left to speculate
whether she was in the cabin.
Since time was of the essence, and it was imperative
that they locate and identify their suspect so as to rule out the
continuing danger she could pose to others in the vicinity, the
officers then would have faced an irreconcilable quandary. They
could undertake a "containment" strategy along the lines pro-
pounded by McClaran, which would necessitate a delay of several
hours for the Maine State Tactical Team to reach the cabin,
thereby countenancing the realistic risk that their suspect might
be elsewhere at that very moment jeopardizing the safety of
others.8 Or, having heralded their arrival, the officers could
have attempted to confirm Katherine's presence through visual
contact, by approaching the outer walls of the darkened cabin
across the moonlit clearing, thereby exposing themselves to
gunfire from their armed and unpredictable suspect by then
forewarned and concealed.
Law enforcement officers quite often are required to
assess just such probabilities, and to weigh the attendant
contingencies. And it is precisely such spontaneous judgment
calls borne of necessity in rapidly evolving, life-endangering
circumstances that the qualified immunity doctrine was de-
signed to insulate from judicial second-guessing in civil actions
for money damages, unless the challenged conduct was clearly
_________________________________________________________________
8Once the tactical team had arrived, moreover, it would
still have been necessary to confirm by some means Kath-
erine's presence in the cabin.
23
23
incompetent or undertaken in plain violation of established law.
See Hunter, 502 U.S. at 229; Anderson, 483 U.S. at 638.
___ ______ ________
24
24
Thus, we do not determine which of these strategies
represented the more prudent course or posed the least serious
____ _____
risk to the suspect, the officers or others in the vicinity. See
___
Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994) (noting that
_____ _______
"[o]fficers need not avail themselves of the least intrusive
___ _____ _________
means of responding to an exigent situation; they need only act
_____
within that range of conduct [which is] . . . reasonable";
contrary rule "would inevitably induce tentativeness by offi-
cers"). Rather, we consider only whether a competent police
officer in these circumstances reasonably could have opted for an
unannounced approach to the cabin walls forthwith.
As we conclude that a competent police officer reason-
ably could have believed that exigent circumstances warranted
approaching the cabin walls forthwith and unannounced we
_________ ___ ___________
turn to the remaining question: whether the defendant officers
once committed, and assured that Katherine was inside the
cabin where she no longer posed a viable threat to other campers
reasonably could have believed that she represented an immi-
nent physical threat to their own safety.9 See Olson, 495 U.S.
___ _____
at 100.
The expert testimony on which plaintiff relies makes
_________________________________________________________________
9Although we need not resolve the matter definitively, we
have serious reservations whether the officers' actions were
justified by concern that Katherine might take her own life.
True, the objective evidence indicated that she had exhibited
behavior both violent and unpredictable, yet the evidence re-
vealed that her conduct was directed at third parties, never
herself. Nor had she said anything to the officers that might
indicate suicidal intent.
25
25
much of the notion that the entire plan for approaching the outer
cabin walls was ill-conceived and uncoordinated ab initio,
__ ______
whereas the officers plausibly contend that they had worked
together as a team so often in the past that their basic plan and
tactics were implicitly understood. But even accepting William
McClaran's prescription as to an appropriate police procedure for
use in these circumstances, plaintiff does not explain how a
differently formulated plan devoid of the suggested deficien-
cies in the officers' plan inevitably would have averted the
exigency ultimately confronting them. See supra notes 5 & 8.
___ _____
Indeed, none of the consequences McClaran attributed to the
alleged absence of a "chain of command," or to lack of coordina-
tion in the officers' plan, clearly constituted a causative
_________
factor in Katherine's death.10 Rather, the causative exigency
derived primarily from three factors over which the officers
never had exclusive control: the need to ascertain Katherine's
precise location as soon as possible, her unpredictable behavior,
and the lack of protective cover for their own movements in
_________________________________________________________________
10Plaintiff misfocuses the "qualified immunity" analysis by
inquiring whether all aspects of the officers' conduct were
___ _______
executed in the manner to be expected of an "objectively reason-
able" officer, rather than whether the particular decisions which
__________ _________ _____
led to Katherine's death reasonably could have been made by such
___ __ ___________ _____
an officer. Thus, for example, even assuming the plan increased
the risk that an officer might be caught in another officer's
cross-fire, the subsequent decision to enter and disarm Katherine
was not implicated thereby. Furthermore, the officers' "differ-
ing" responses to Katherine's inquiries were not so much confus-
ingly inconsistent, as consistently misleading. But their
responses were also deliberately designed to reduce the risk that
she might react violently, as by their consistent expressions of
concern for Katherine's safety and their scrupulous avoidance of
any mention of her impending arrest.
26
26
locating and containing her.
Second, though plaintiff argues that the officers
delayed their forcible entry until they were safest when it
____
"appeared" to Officer Guay that Katherine was unarmed and beyond
arm's reach from a firearm surely this argument exaggerates
their on-the-spot sense of personal security by failing to assess
the imminence of a perceived danger in light of the totality of
________ __
the circumstances. See United States v. Veillette, 778 F.2d 899,
___ _____________ ___ _____________ _________
902 (1st Cir. 1985) (exigency is assessed by viewing "totality"
of circumstances), cert. denied, 476 U.S. 1115 (1986).
_____ ______
Katherine moved freely about the unilluminated interior
of the locked cabin, which contained deadly firearms whose exact
number and location were unknown to the officers. Cf., e.g.,
___ ____
United States v. Smith, 797 F.2d 836, 841-42 (10th Cir. 1986)
_____________ _____
(exigency established for warrantless entry where agents ap-
proached aircraft with probable cause to believe it might harbor
armed drug dealers); United States v. Guarente, 810 F. Supp.
______________ ________
350, 352-53 (D. Me. 1993) (exigency established for warrantless
entry where officers remained uncertain about the intentions of
armed suspects who might remain inside structure). Only minutes
before, Katherine had pointed her rifle at Sergeant Crawford.
Cf. O'Brien v. City of Grand Rapids, 23 F.3d 990, 997 (6th Cir.
___ _______ ____________________
1994) (qualified immunity claim disallowed where suspect "had
taken no action against the officers" and "did not point the gun
27
27
at anyone"; noting that threat to police must be "im-
mediate").11 Prior to their forced entry, the officers real-
ized that the cabin walls were "paper thin,"12 thus affording
insufficient cover should Katherine decide to fire from inside
the cabin a serious contingency that competent officers
reasonably could take into account given the violent, irrational
and unpredictable behavior recently exhibited by their barricaded
suspect, including her peculiar bouts of laughter, history of
emotional instability and demonstrated antagonism toward law
enforcement personnel. In such circumstances, competent police
officers reasonably could conclude that to announce their inten-
tion to place the barricaded suspect under arrest dispensing
with their ruse that they were there only to help her might
well spark renewed violence.
_________________________________________________________________
11Although plaintiff argues that this incident cannot serve
to establish an exigent circumstance because Katherine may
have pointed the gun at Crawford before she recognized that he
______
was a police officer omniscience is not the presumed mindset
with which an objectively reasonable police officer approaches
life-endangering decisions. The correct focus must be on the
significance an objectively reasonable police officer might
attach to the threatening action, in circumstances where he
like Sergeant Crawford could not know, with assurance, the
____
suspect's exact state of mind or intent. Cf., e.g., Gibson v.
___ ____ ______
Officer, P.A., 44 F.3d 274, 277-78 (5th Cir. 1995) (proper focus
______________
is not upon factual dispute as to whether suspect was intoxicat-
ed, but whether objective facts might lead a reasonable officer
so to conclude); Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir.
________ _____
1991) (police officer's belief that suspect was reaching for gun
was "reasonable" even though object turned out to be a bottle).
12Their vulnerability to gunfire from within the cabin was
later confirmed. McClaran himself noted that several police
bullets fired immediately after the forcible entry passed
through the cabin walls.
_______
28
28
Finally, once their objectively reasonable locate-and-
contain strategy had positioned several officers in unexpectedly
vulnerable positions against the thin cabin walls, cf. Curzi, 867
__ _____
F.2d at 43, they could neither remain in their positions in-
definitely nor safely terminate the impasse by attempting to
retreat across the moonlit cabin clearing without directly
exposing themselves to potential gunfire. Thus, safe and indefi-
nite containment either from their vulnerable positions
against the cabin walls or from a "safer" distance no longer
remained a practicable alternative. Cf. United States v. Wilson,
___ _____________ ______
36 F.3d 205, 210 (1st Cir. 1994) (upholding denial of motion to
suppress evidence because police officers should not be required
to remain indefinitely outside apartment located in building
which was well-known site of prior drug sales and police shoot-
ings); Guarente, 810 F. Supp. at 352-53 (finding it reasonable
________
for police to enter building in circumstances where their alter-
native was to remain potential targets for any concealed armed
suspect who might be inside); cf. also United States v. Hardy, __
___ ____ _____________ _____
F.3d ___, ___ (7th Cir. 1995) [No. 94-2820, 1995 U.S. App. LEXIS
7605 (7th Cir. Apr. 5, 1995)] (finding exigent threat to officer
safety where armed suspect, with known history of violence and
drug use, was inside locked motel room and within "easy reach" of
powerful firearm); Russo v. City of Cincinnati, 953 F.2d 1036,
_____ __________________
1044-45 (6th Cir. 1992) (finding that no unreasonably excessive
force had been used against an armed and "suicidal" person
barricaded inside apartment who had made threatening state-
29
29
ments toward police officers while in intermittent close proximi-
ty to them, and showed signs of serious mental instability);
Smith, 797 F.2d at 841 (exigency established where officers had
_____
probable cause to believe aircraft, which had landed at isolated
airfield after dark, might harbor armed drug dealers).
30
30
We therefore conclude that a competent police officer
possessing the same information the defendant officers had on
May 15, 1992 reasonably could have believed both that there
existed probable cause to arrest Katherine Hegarty and exigent
circumstances justifying their immediate warrantless entry.
Consequently, the summary judgment order entered by the district
court must be vacated, and summary judgment must be entered for
the defendant officers.
B. Sheriff Havey's Qualified Immunity Claim
B. Sheriff Havey's Qualified Immunity Claim
________________________________________
Although Somerset County Sheriff Spencer Havey did not
participate in the events of May 15, 1992, plaintiff advances two
related challenges to the summary judgment order entered in favor
of Havey. First, plaintiff argues that Havey failed to train his
officers adequately or to institute written standard operating
procedures ("SOPs"), even though it was reasonably foreseeable
that these deputy sheriffs likely would encounter so-called
"barricaded felon" cases on a frequent basis in rural, wooded
Somerset County. Second, even assuming that a need for addition-
al training and SOPs had not been foreseeable prior to the
Hegarty incident, Sheriff Havey's subsequent conduct would enable
__________
a factfinder to infer that Havey had condoned the officers'
conduct, or been indifferent to the need for better training long
before May 15, 1992. For example, Sheriff Havey refused to
discipline his officers for the fatal shooting of Katherine
Hegarty, as recommended in the Attorney General's final investi-
gative report. Nor did he institute additional training, as
31
31
recommended by a citizen review board convened by Havey in the
wake of the tragic event.
1. Applicable Law
1. Applicable Law
______________
Under 28 U.S.C. 1983, supervisory law enforcement
officers incur no respondeat superior liability for the actions
__________ ________
of their subordinates. See, e.g., City of Canton v. Harris, 489
___ ____ ______________ ______
U.S. 378, 385 (1989). Absent participation in the challenged
conduct, a supervisor "can be held liable . . . [only] if (1) the
behavior of [his] subordinates results in a constitutional
violation and (2) the [supervisor's] action or inaction was
'affirmative[ly] link[ed]' to the behavior in the sense that it
_______________ ________
could be characterized as 'supervisory encouragement, condonation
or acquiescence' or 'gross negligence [of the supervisor] amount-
ing to deliberate indifference.'" Lipsett v. University of
__________ ____________ _______ ______________
Puerto Rico, 864 F.2d 881, 902-03 (1st Cir. 1988) (emphasis
____________
added) (citations omitted); see Rodriques v. Furtado, 950 F.2d
___ _________ _______
805, 813 (1st Cir. 1991) (discussing deliberate indifference to
officer training). Deliberate indifference will be found only if
"it would be manifest to any reasonable official that his conduct
was very likely to violate an individual's constitutional
rights." Febus-Rodriguez, 14 F.3d at 92 (quoting Germany v.
_______________ _______
Vance, 868 F.2d 9, 18 (1st Cir. 1989)). The "affirmative link"
_____
requirement contemplates proof that the supervisor's conduct led
inexorably to the constitutional violation. See id.; see also
___ ___ ___ ____
Fraire v. City of Arlington, 957 F.2d 1268, 1281 (5th Cir.),
______ __________________
cert. denied, 113 S. Ct. 462 (1992).
_____ ______
32
32
33
33
2. Application of Law to Facts
2. Application of Law to Facts
___________________________
The determination that a subordinate law enforcement
officer is entitled to qualified immunity from suit under section
1983 is not necessarily dispositive of the supervisor's immunity
claim. Nevertheless, it does increase the weight of the burden
plaintiff must bear in demonstrating not only a deficiency in
supervision but also the essential causal connection or "affirm-
______ __________
ative linkage" between any such deficiency in supervision and the
alleged deprivation of rights. We conclude that plaintiff has
not carried this heavy burden.
We find the district court's preliminary analysis of
Sheriff Havey's qualified immunity claim to be well reasoned and
persuasive. The evidence demonstrates that Sheriff Havey, newly
elected to office, had no notice that the deputy sheriffs were
experiencing problems in dealing with "barricaded suspect"
confrontations prior to the incident in question. Cf. Febus-
___ ______
Rodriguez, 14 F.3d at 92. Indeed, their police academy training
_________
and instruction time relating to warrantless entries exceeded the
________
national average. See Canton, 489 U.S. at 389. Moreover, rather
___ ______
than simply ignore the Hegarty incident, Havey suspended all
officers involved and convened a panel to investigate and make
recommendations. Although it is entirely understandable that
plaintiff would fault Sheriff Havey for not accepting or adopting
the recommendations made by the advisory panel, such a decision
is insufficient, standing alone, to establish deliberate indif-
ference. See, e.g., Santiago v. Fenton, 891 F.2d 373, 382 (1st
___ ____ ________ ______
34
34
Cir. 1989) (decision not to discipline or fault subordinates'
conduct, following investigation, is insufficient, standing
alone, to demonstrate supervisor's "deliberate indifference");
see also Fraire, 957 F.2d at 1278-79.
___ ____ ______
Even though the district court ruled that Havey's
subsequent conduct did not amount to deliberate indifference, it
expressed serious reservations concerning some of his conduct,
see Bordanaro v. McLeod, 871 F.2d 1151, 1166-67 (1st Cir.), cert.
___ _________ ______ _____
denied, 493 U.S. 820 (1989) (postincident conduct may be relevant
______
to "deliberate indifference" inquiry); Grandstaff v. City of
__________ _______
Borger, 767 F.2d 161, 171 (5th Cir. 1985), cert. denied, 480 U.S.
______ _____ ______
916 (1987) (same), notably Havey's failure to acknowledge the
need to prescribe SOPs or to institute in-house training for
_________
handling "barricaded felon" cases. Nevertheless, the rationale
for our decision that the individual officers at the scene acted
within the bounds of objective reasonableness, see supra Section
___ _____
II.A, plainly undermines most of the district court's concerns.
Most importantly, plaintiff failed to demonstrate the
required "affirmative link" between Havey's conduct and Katherine
Hegarty's death. That is, he has not sustained the burden of
establishing that any lack of "barricaded felon" training on the
part of the Somerset County Sheriff's Department officers at the
scene caused Katherine's death. Cf., e.g., Manarite v. City of
___ ____ ________ _______
Springfield, 957 F.2d 953, 958 (1st Cir.), cert. denied, 113 S.
___________ _____ ______
Ct. 113 (1992). First, even the plaintiff's expert declined to
characterize the Hegarty incident as a typical "barricaded felon"
_______
35
35
case. And, unlike the typical "barricaded felon" case, these
officers at the outset had no conclusive evidence but that their
suspect remained at large.
________ __ _____
Moreover, even assuming the best efforts of the most
prescient supervisor, it simply is not possible to anticipate the
entire array of atypical circumstances upon which sensitive
______
discretionary judgment calls must be made by the officer in the
_____________
field for inclusion in a law enforcement agency's standard
operating procedures. For example, even indulging an impermis-
sible measure of hindsight, we do not believe that SOPs, however
elaborate, would have enabled the defendant officers at the scene
to resolve by safer or more reliable means whether Katherine was
_____ __ ____ ________ _____
inside the cabin at the time the officers first arrived. So,
too, in the end, Sheriff Havey after initiating an immediate
investigation into the officers' actions formed the profes-
sional opinion, rightly or wrongly, that the judgment calls made
at the scene were reasonable.
Finally, though plaintiff would characterize Sheriff
Havey's subsequent conduct as pure obstinacy, the cloak of
___ _____ __
qualified immunity nonetheless remains in place unless "it would
_________ ________ ___________ _______ __ _____
be manifest to any reasonable official" in the supervisor's
position that the failure to establish such a policy or to
institute in-house training prior to the Hegarty incident "was
_____ __ ___ _______ ________
very likely to violate an individual's constitutional rights."
Febus-Rodriguez, 14 F.3d at 92. As plaintiff failed even to
_______________
approach the threshold for such a showing, we affirm the district
36
36
court ruling allowing the qualified immunity claim asserted by
defendant Havey.
III
III
CONCLUSION
CONCLUSION
__________
We cannot know whether the tragic death of Katherine
Hegarty would have been averted but for the judgment calls made
by the defendant officers at the scene, nor is that the inquiry
we make in a civil rights action for damages against the individ-
ual officers. We determine only whether the discretionary
decisions made by the defendants were within the broad range of
reasonable conduct to be expected from competent police officers
and their supervisors in like circumstances. As the actions of
the defendant officers and their supervisor plainly met the
latter standard, the district court order denying summary judg-
ment to the defendant officers must be reversed and the judgment
in favor of defendant Havey must be affirmed.
The judgment for defendant Havey is affirmed and the
_______________________________________________________
case is remanded to the district court with instructions to
_________________________________________________________________
vacate the judgment entered for plaintiff and enter summary
_________________________________________________________________
judgment for the defendant officers, and for such further pro-
_________________________________________________________________
ceedings as may be appropriate and consistent with this opinion.
________________________________________________________________
The parties shall bear their own costs on appeal.
________________________________________________
37
37
