THOMPSON, Circuit Judge.
This appeal stems from the tragic deadly shooting of a sixteen-year-old boy named Anthony McGrath ("Anthony") by a Plymouth police officer. Following the untimely death of her son, Denise McGrath ("McGrath") filed a 42 U.S.C. § 1983 action, alleging the police officers involved had used excessive force in violation of the Fourth and Fourteenth Amendments.
Because this is an appeal from the entry of summary judgment, we relate the facts in the light most flattering to the nonmoving party — in this case, McGrath — "as the record will reasonably allow."
The events surrounding Anthony's death took place in the early morning of January 10, 2006 in Plymouth, Massachusetts. Around 3:15 a.m., on-duty Plymouth police officers Edwin F. Almeida and Richard T. Tavares responded to an activated burglar alarm at a liquor store (near the intersection of Samoset and Court Streets). At the time the dispatch came in, the officers were in their two respective police cars at Standish Plaza (on Samoset Street). As told by the officers, the following sequence of events transpired in a time span of approximately five minutes.
Having received the dispatch, Officer Almeida headed east on Samoset Street towards the liquor store with his police cruiser's blue lights activated. As he approached the intersection of Samoset and Court, he saw a westbound Toyota Camry stopping at the traffic light. The light in Officer Almeida's direction was red, but turned green as he approached the intersection. Simultaneously to the eastbound light turning green, the westbound Camry turned left, and headed south on Court Street. Believing various traffic violations had been committed, Officer Almeida decided to pull over the Camry.
Officer Almeida headed south behind the Camry, but the car did not pull over. It did eventually slow down at an intersection roughly four city blocks later, at which point Almeida was able to get a quick look at the driver. But the Camry then took off again. Officer Almeida — still with his police cruiser's lights, siren, and wigwags on — was now in active pursuit.
Hearing the initial dispatch to the liquor store and being in the area, Officer Tavares responded as backup for Officer Almeida's alarm investigation. As he was drawing near to the liquor store, he heard Officer Almeida radio in that he was pulling over a driver in the vicinity of the business. But Tavares continued heading towards the liquor store in response to the activated burglar alarm. It was not until Officer Tavares heard Officer Almeida tell dispatch the driver was refusing to stop and was running that he changed course, and told dispatch he would head towards Almeida's location. With his police cruiser's lights and siren on, Officer Tavares quickly joined the pursuit.
Officers Almeida and Tavares pursued the speeding zigzagging Camry up Water Street until it reached the T intersection with Nelson Street, where the speeding driver was not able to make the turn on time, and crashed into a stone wall. The two police officers pulled up behind the Camry: Officer Almeida parked his cruiser to the rear of the driver's side, and Officer Tavares to the rear of the passenger's side. Almeida then exited his cruiser, drew his gun, and began shouting commands at the driver to put his hands up and step out of the Camry. The driver failed to comply with any of Officer Almeida's commands. Instead, he revved the engine and maneuvered the Camry in reverse between the two police cruisers. The reversing Camry hit Almeida's cruiser, and continued a couple of yards before it crashed into a telephone pole.
The Camry then remained on the telephone pole for a few seconds. Officer Tavares was now the one shouting commands. He approached the Camry from the front passenger side, instructing the driver to turn off the engine and get out. Officer Almeida was to Officer Tavares's right, also facing the Camry. Both police officers had their weapons drawn and aimed at the driver. The driver, again, did not comply; this time, he was looking straight at Officer Tavares with his hands on the steering wheel. Continuing to ignore the police officers' directives to turn off the car, the record reflects the driver revved the Camry's engine and accelerated forward towards Officer Tavares. Tavares then fired his weapon twice, striking the car's front windshield. One of the shots hit the driver in the upper right arm. As the Camry passed Officer Tavares on his right, and continued in Officer Almeida's direction, Tavares fired two more shots. The fatal shot entered the Camry through the front passenger window and struck the driver in the back. Officer Almeida then fired seven shots, but none struck the driver. After hitting the curb and becoming airborne, the Camry came to a complete stop.
Officer Tavares immediately radioed police dispatch, indicating that shots had been fired, and that an ambulance was needed. He simultaneously approached the Camry from the rear, while Officer Almeida closed in from the front. The driver's door was open and the driver was slumped to the left of the steering wheel. Officer Tavares again yelled at the driver to turn off the car and get out, but the driver did neither. Tavares pulled the
Officer Stephen McLaughlin arrived on the scene, and the three officers began to administer first aid. Officers McLaughlin and Almeida maintained pressure on the wounds and operated the ambu bag,
On January 5, 2009, McGrath — as administratrix of her son's estate — sued Officer Tavares, Officer Almeida, Chief of Plymouth Police Department Robert J. Pomeroy, and the Town of Plymouth in the federal district court for the District of Massachusetts.
Officers Tavares and Almeida moved for summary judgment, averring McGrath "ha[d] not established that the use of deadly force violated Anthony McGrath's Fourth Amendment constitutional rights and, in any event, [they were] entitled to qualified immunity." McGrath opposed the entry of summary judgment, asserting the existence of genuine disputes of material facts.
On July 15, 2011, the district court heard the motion for summary judgment and took it under advisement. On September 4, 2012, it granted summary judgment in Defendants' favor, holding that Officer Tavares's use of deadly force was objectively reasonable as a matter or law, and thus, no constitutional violation had occurred.
McGrath now appeals.
We review the entry of summary judgment de novo, affirming only if the record shows there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Bos. Prop. Exch. Transfer Co. v. Iantosca, 720 F.3d 1, 10 (1st Cir.2013). At the summary judgment stage, we must draw all reasonable inferences from the record in the light most favorable to the nonmoving party, disregarding any "conclusory allegations, improbable inferences, and unsupported speculation." Alicea v. Machete Music, 744 F.3d 773, 778 (1st Cir.2014) (quoting Smith v. Jenkins, 732 F.3d 51, 76 (1st Cir.2013)). We do not make any credibility determinations or weigh the evidence. See Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.2011). We may uphold an entry of summary judgment on any basis apparent from the record. See, e.g., Bos. Prop. Exch. Transfer Co., 720 F.3d at 10; Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242, 247 (1st Cir.2013).
"A claim that law-enforcement officers used excessive force to effect a seizure is governed by the Fourth Amendment's `reasonableness' standard." Plumhoff v. Rickard, ___ U.S. ___, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014). "[D]etermining the ... reasonableness of a particular seizure ... `requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Id. (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "To establish a Fourth Amendment violation based on excessive force, a plaintiff must show that the defendant officer employed force that was unreasonable under the circumstances." Kenney v. Floyd, 700 F.3d 604, 609 (1st Cir.2012) (quoting Jennings v. Jones, 499 F.3d 2, 11 (1st Cir.2007)) (internal quotation marks omitted).
This reasonableness inquiry is an objective one; it is not a question of subjective intent. Graham, 490 U.S. at 397, 109 S.Ct. 1865 ("[T]he question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."). We evaluate "the reasonableness of a particular use of force `from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Kenney, 700 F.3d at 609 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). Our assessment "must account `for the fact that
McGrath argues the Fourth Amendment did not allow Officer Tavares to use deadly force because he lacked "probable cause" under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) — i.e., "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force," id. at 11, 105 S.Ct. 1694. She has maintained from the start that Officer Tavares and Officer Almeida were never in any danger of physical injury or death; particularly, at the time Tavares fired the shot that killed her son (when the Camry accelerated forward from the telephone pole) because neither officer was in "or anywhere near" the Camry's path of travel.
What she points us to are police photographs of the resulting bullet holes in the Camry in an attempt to show the officers were never in front of the accelerating car. She argues that "from the State Police photographs a lay person could reasonably conclude that the penetration holes in the windshield from Tavares' first and second shots were not made from shots taken directly in front of the Camry," but "from off to the right or passenger side of the Camry." And that, likewise, "[p]hotographs
McGrath also points to a pattern of shattered glass illustrated in both the Dowd forensic map
The police report, the officers' deposition testimonies, and the marked-up maps also establish that when Officer Tavares fired shots three and four, he believed Officer Almeida was to his right, and the Camry was headed in that direction. Contrary to McGrath's contention, Officer Tavares had no duty to turn around and pin down Officer Almeida's exact location. Cf. Plumhoff, 134 S.Ct. at 2023 (stressing an officer had not violated clearly established law "when she fired at a fleeing vehicle to prevent possible harm to `other officers on foot who [she] believed were in the immediate area'" (alteration in original) (emphasis added)). Again, any reasonable officer in Tavares's position, faced with the same reckless driver who had almost run him over a fraction of a second earlier, could reasonably believe that Officer Almeida was in grave physical harm's way. See id. at 2021 ("[The fleeing suspect]'s outrageously reckless driving posed a grave public safety risk."). Remember, protecting oneself or others from serious physical harm justifies a police officer's resort to deadly force. See Wainwright, 548 F.3d at 175.
From Officer Tavares's perspective, Anthony was dangerous, and he acted accordingly. He faced a driver who led him and another officer in a car chase through downtown Plymouth in the wee hours of the morning, and was refusing to heed to legitimate police officer directives (not only had Anthony refused to stop when police officers attempted to pull him over, but he had refused to follow any police officer commands thereafter). Throughout the car chase, Anthony acted with complete disregard for Officer Tavares and Officer Almeida's safety or the safety of anybody else that might have been on the street. See Scott, 550 U.S. at 383-84, 127 S.Ct. 1769 (looking at the "actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase" when assessing the governmental interest in ensuring public safety). We point out that the chase was still ongoing when Tavares fired his weapon. It did not conclude with the stone wall collision, seeing as Anthony quickly picked up his flight by reversing the Camry in between the police cruisers. See Plumhoff, 134 S.Ct. at
In sum, for McGrath to succeed on her Fourth Amendment claim, she must establish that Officer Tavares's shooting at Anthony was not objectively reasonable "in light of the circumstances and the facts known to [him] at the time." Calvi v. Knox County, 470 F.3d 422, 428 (1st Cir. 2006). She cannot. As we just mentioned, Officer Tavares's use of deadly force was objectively reasonable because a reasonable officer in the same circumstances could have believed Anthony posed a threat of (at the very least) serious physical harm to his person when he fired shots one and two, and an identical threat to Officer Almeida when he fired shots three and four. See Wainwright, 548 F.3d at 175. A reasonable officer could have likewise concluded Anthony "would once again pose a deadly threat for others" if he had resumed his flight. See Plumhoff, 134 S.Ct. at 2022. Moreover, Officer Tavares's third and fourth shots are also justified by Anthony's failure to abandon his attempt to flee after the initial two shots were fired, continuing to pose an imminent threat to the public. See, e.g., id., Because the record does not establish a Fourth Amendment violation, McGrath's claim cannot survive summary judgment.
In any event, even if a constitutional violation was established, Defendants would still be entitled to summary judgment based on qualified immunity because they did not violate clearly established law. We explain.
"An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Plumhoff, 134 S.Ct. at 2023 (internal quotation marks omitted). "And a defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Id. "[E]xisting precedent must have placed the statutory or constitutional question confronted by the official beyond debate." Id. (internal quotation marks omitted).
The burden of demonstrating the law was clearly established at the time of the alleged constitutional violation is on the plaintiff, McGrath. See Cortés-Reyes v. Salas-Quintana, 608 F.3d 41, 52 (1st Cir.2010). Although McGrath admittedly did not intend to develop her qualified immunity argument on appeal,
The Supreme Court's discussion of qualified immunity in Plumhoff — which involved a suspect who was killed by police amid a car chase, during which the suspect almost hit an officer with his car — sheds more light on our particular inquiry. Referring to its 2004 decision in Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam), the Court outright confirmed that "as of February 21, 1999 ... it was not clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger." Plumhoff, 134 S.Ct. at 2023. Brosseau, in turn, had held
Id. (alterations and ellipses omitted) (quoting Brosseau, 543 U.S. at 197, 125 S.Ct. 596) (internal quotation marks omitted). The Brosseau Court had deemed the reasonableness of deadly force by a police officer in response to a car chase to be "an area in which the result depends very much on the facts of each case and ... the [then-existing caselaw] by no means clearly established that the officer's conduct violated the Fourth Amendment." Id. (citing Brosseau, 543 U.S. at 201, 125 S.Ct. 596) (alterations omitted) (internal quotation marks omitted).
On account of this, the Plumhoff Court tells us that to overcome a qualified immunity defense in a case where a police officer fired at "a fleeing driver to protect those whom his flight might endanger," a plaintiff would have to show "at a minimum" that the officer's conduct is "materially different from the conduct in Brosseau" or that between February 21, 1999, and the date of the alleged constitutional violation "there emerged either controlling authority or a robust consensus of cases of persuasive authority that would alter our analysis of the qualified immunity question." Id. (citations omitted) (internal quotation marks omitted). McGrath cannot show either.
The facts in this case are more favorable to the shooting police officer than the facts in Brosseau. First, the police officer in Brosseau fired at the driver when he "had just begun to flee and ... had not yet driven his car in a dangerous manner." Id. Whereas here, Officer Tavares fired his weapon during a car chase "that indisputably posed a danger both to the officers involved and to any civilians who happened
The only post-February 21, 1999 (and pre-January 10, 2006) case McGrath cites as authority for her "clearly established" argument is Whitfield, which we already addressed a few pages back. All things said, McGrath does not point us to any case since Brosseau that clearly establishes the unconstitutionality of using deadly force to end a car chase that threatened the physical safety of the police officers and others in the area.
It is never easy for a parent to bury a child. And the particularly tragic circumstances surrounding sixteen-year-old Anthony's death make this loss even more devastating for his mother. However, we are duty-bound to apply the law to the record facts, which in this case do not support McGrath's theory of recovery.
Because the record does not establish a Fourth Amendment violation, and in the alternative, Defendants would be entitled to qualified immunity, we affirm the district court's entry of summary judgment in Defendants' favor.
