USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-1260
MICHAEL G. ROY,
Plaintiff, Appellant,
v.
INHABITANTS OF THE CITY OF LEWISTON, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
____________________

Walter Hanstein, III with whom William Maselli and Joyce, Dum
____________________
________________
___________

David & Hanstein, P.A. were on brief for appellant.

______________________
Edward R. Benjamin, Jr. with whom Daniel Rapaport and
_________________________
________________
Flaherty, Beliveau & Pachios were on brief for appellees.
____________________________

Pre
___

____________________
December 21, 1994
____________________

BOUDIN, Circuit Judge.

_____________
p.m.,

officers

Michael Whalen

Lewiston

Police

domestic

violence report

Roy.
Michael

threatened to
him.

Department

On arriving, Edith
Roy

On August

("Roy")

was

and

were

Richard
sent

at the home
Roy told the
armed

with

use them against any

The policemen

13, 1991, around 9:00

then went

to

Mercer of
investigate

of Michael

the
a

and Edith

police officers that

two

knives and

had

policeman who approached

outside to

residence and found Roy lying on the ground.

the back of

the

Roy was
then
way

roused--he had been

drinking--and the officers

learned that a third officer, Randy Hausman, was on his

to the

Roys'

home to

because of a complaint

accept

rights, Roy

summons on

Michael Roy

by another woman that Roy

her earlier that day.

Miranda
_______

serve a

When

had struck

Hausman arrived and read Roy his

refused to

acknowledge the

the summons, so Hausman

reading or

pushed it into Roy's pocket.

The latter then became upset, stated "I'll show you," entered
his

home,

and

then--following

out

Edith

Roy

who

was

screaming--returned carrying a steak knife in each hand.

In

broad

outline,

what

happened

next

is

that

the

officers drew their side arms and ordered Roy to put down the
knives.
hold

He advanced, flailing his arms

the knives.

The

downward

incline.

officers

repeated their

while continuing to

officers retreated

After

some maneuvering

warnings

-2-2-

and made

back to
in

a sharp

which

some effort

the
to

distract and
toward
both

disarm Roy,

Roy made a

Whalen and Mercer.

times and

hospitalized.

kicking-lunging motion

Whalen shot

injuring him

badly.

He ultimately

twice, striking Roy

Roy was

arrested and

recovered, and then brought the

present action.
The law
federal

suit,

filed

district court,

officers,

in

state court

asserted claims

the City of Lewiston,

and

removed

against all

and the police

to

three

chief.

The

claims, under 42 U.S.C.

1983 and state law, were based

charges that the three

police officers had unreasonably used

deadly force.
be

The city and

on

its police chief were claimed to

liable on the ground that they had not adequately trained

the

officers

in

non-lethal

alternatives

for

subduing

dangerous but intoxicated persons.

The

defendants

moved

for

summary judgment

based

on

affidavits reciting the facts just set forth and their belief
that

their

conduct

was

reasonable.

In

response,

submitted affidavits and deposition materials of his own.

did

not contradict

the events

just described

was seeking to put the knives

when

also

was shot.

He

proffered testimony

witnesses who had seen the event.

he had

not seen the kick

down

from two

One, a teenager, said that

or lunge; but Roy

that he had made some gesture of this kind.

-3-

He

but asserted

that he had intended and

he

Roy

did not dispute

-3-

The

other

drunken
jail.

prisoners as

qualified to

unreasonable force

indication that

substantial

had been used,

But in

ultimately declined to go

his

In

as to
is an

the police conduct

eyewitness

further than to say that

a number of

county

and there

deposition this

have handled the matter differently.

testimony confirmed

in the

give an opinion

he harbored doubts about

subduing Roy.

experience with

corrections officer

He was arguably

whether

in

eyewitness had

he might

other respects, his

the details offered

by the

officers.
A

third affiant,

police procedure,

with qualifications

said that

arrested

Roy without

using

officers

should have

been

colloquially known
was not

the officers could

firearms.
equipped with

as red pepper

made available

as an

mace.

to Lewiston

He said

expert on
easily have
that

a noxious
Because

the

spray,

this spray

police and because

the

expert thought that the police chief placed undue emphasis on

guns, the expert was prepared to say that the training of the

officers was inadequate.

In a

thoughtful opinion rendered on

the district

court granted the motions

in favor of
said

each defendant;

their conduct was

by qualified immunity.

as to the

February 16, 1994,

for summary judgment
officers, the

court

objectively reasonable and protected

___
Roy has now appealed, challenging the

grant of summary judgment as to

each of the defendants.

For

-4-4-

reasons to be

explained, we

are mainly

concerned with

the

section 1983 claim against Whalen; and although we might have

rested on the district court's

opinion, this case raises one

important issue of general application.

To lay

the groundwork, we invoke

propositions:

summary

judgment

the usual boilerplate

is proper

if there

is no

genuine issue of material fact and the law otherwise warrants

judgment for the moving
jury would

resolve

party; the court must assume

credibility issues

and draw

that a

reasonable

inferences

in

favor of

review

of summary

56(c);

Rivera
______

the opposing

judgment is

v. Murphy,
______

party; and

de novo.
_______

979 F.2d

259

Fed.

on appeal
R. Civ.

(1st Cir.

P.

1992).

Qualified immunity claims, in

particular, are to be resolved

before trial, where possible.

Hunter v. Bryant, 502 U.S. 224

______
______

(1991).
Section

1983

protects constitutional

rights,

and the

constitutional standard for measuring Whalen's conduct has

surface clarity.
Fourth Amendment's
that the
solely

use

Supreme Court has instructed that

the

Graham
______

force

1983 actions

incident to

officer's

that

U.S. 386,

depends

"objectively
397 (1989).

a qualified immunity test for

shields a

-5-5-

arrest

conduct was

v. Connor, 490
______

Further, the Court has adopted

section

the

search and seizure provisions control and

of deadly

on whether

reasonable."

The

"reasonable

officer"

judged by an objective standard.

Anderson v. Creighton, 483

________
_________

U.S. 635, 641 (1987).

If these "reasonableness" tests were designed to
the

standards

of

whether summary
even though

common-law

negligence,

think that

three officers had to shoot

man who, although armed
and stumbling

is

judgment would be appropriate

the underlying facts

all, one might

it

are fairly

a hard look

doubtful

in this case,
clear.

After

was warranted

and badly injure an

where

intoxicated

with two small knives, was

about rather ineffectually.

prepared to offer an

mirror

flailing

Further, Roy was

expert to say that the

police conduct,

quite apart from the lack of mace, was unreasonable.

The most

plausible ground given by the

judgment was that

the officers had been

expert for this

properly trained to
________

keep a considerable distance--such as 20 feet--from a suspect

armed with a knife.
of feet from

In fact, two officers were only a couple

Roy when he

kicked and

further away, shots might

lunged; had they

not have been needed.

been

The expert

was prepared to testify

that he had reviewed

a tape of

scene and believed that

the officers had room to

the

retreat in

three different directions.

Judgments

about

reasonableness

juries in arguable cases,

are

usually

even if there is no

what happened (qualified immunity

made

by

dispute about

is a different matter, see

___

Hall v. Ochs, 817 F.2d 920, 924 (1st Cir. 1987)).

____
____

Of course,

-6-6-

the facts
no

might point so clearly

reasonable jury could decide

this

case

were treated

exactly

toward reasonableness that

for the plaintiff.
like

a case

of

But if
careless

driving by a postman, it might well seem to be one suited for

trial.

Most

shooting

drunks with knives are

disarmed without anyone

them, and here an expert was prepared to opine that

the officers had been negligent and to explain why.

But the Supreme

Court's standard

of reasonableness

is

comparatively generous to the police in cases where potential

danger, emergency conditions
are present.
Court said

or other exigent

In Graham v. Connor, 490 U.S.

______
______
that the

"allowance" for

circumstances
386 (1989), the

"calculus of reasonableness"

the need of police officers

must make

"to make split-

second judgments--in circumstances that are tense, uncertain,

and

rapidly

evolving--about the

amount

of

force that

is

necessary
Daniels
_______

in a particular situation."
v. Williams, 474
________

Id. at
___

U.S. 327 (1986)

396-97.

Cf.
___

(negligence not a

due process violation).

Also pertinent is the
Anderson v.
________

Court's more general statement in

Creighton addressed to qualified

_________

Fourth Amendment violation.

immunity for a

The Court used

as its standard

the "reasonable officer" and what "could reasonably have been

thought

lawful" by such an

suggesting a

officer, 483 U.S.

measure of deference.

earlier decisions saying that

The

at 638, terms

Court then

quoted

immunity protects "all but the

-7-7-

plainly incompetent
or

those

who act

actions" taken.
475 U.S.

335, 343

or those who knowingly

where

"the

Id. at 638-39.
___

law

violate the law"

clearly proscribed

See also
________

the

Malley v. Briggs,
______
______

(1986) (qualified immunity

leaves "ample

room for mistaken judgments").

What

these

precedents

dictate

substantive liability or qualified

Supreme Court intends to surround
on-the-spot choices
wide

cases, a

second-guess these life and

plaintiff

has

an expert

with a

these
fairly

Decisions from this

are consistent with

jury does

whether

the police who make

dangerous situations

other circuits

in close

this:

immunity is at issue, the

zone of protection in close cases.

circuit and
And

in

is

that view.1

not automatically

get to

death decisions, even though the

and

plausible claim

that

the

situation could better have been handled differently.

In
are

theory, substantive liability and qualified immunity

two separate questions

somewhat
misconduct

different

and, indeed,

procedural

cases, however,

may be

treatment.

the Supreme

subject to
In

Court has

police
used the

same "objectively reasonable" standard in describing both the

constitutional

test of

liability, see
___

Graham, 490
______

U.S. at

____________________
1See, e.g., Gaudreault v. Municipality of Salem, Mass.,
___ ____ __________
_____________________________
923 F.2d 203 (1st Cir. 1990), cert. denied, 500 U.S. 956
_____ ______
(1991); Krueger v. Fuhr, 991 F.2d 435 (8th Cir.), cert.
_______
____
_____
denied, 114 S. Ct. 386 (1993); Reese v. Anderson, 926 F.2d
______
_____
________
494 (5th Cir. 1991); Ryder v. The City of Topeka, 814 F.2d
_____
___________________
1412 (10th Cir. 1987).
-8-8-

397,

and the

Court's own

Anderson, 483
________
would

standard for

U.S. at 639.

deserve

qualified immunity.

It seems unlikely that this case

a different

outcome

even

if the

qualified

immunity defense had not been raised.

As a matter

of legislative policy, one

less latitude for

armed officers,

fleeing

suspects who are not

Supreme

Court's decisions make

test

minimum
_______

legislature

afford

Tennessee v. Garner,
_________
______

by

standard

less
____

471 U.S.

regulations),

adopting
or being

compensation), or both.
think

that

judgment

on

the
the

district
section

of

But the

for liability;

protection

1 (1985).

stringent
more

the case

the objective reasonableness

that prevents a legislature from

(e.g.,
____

at least in

an immediate threat.

constitutional
______________

cannot

could argue for

citizens.

There is

nothing

being tougher on its police

and

generous
Against

court

for

specific

firearms

to victims

(through

this

properly

1983 claim

in

background,
granted
favor

we

summary

of Whalen.

Perhaps a

jury could rationally have found that Whalen could

have done a better job; but in our view a jury could not find
that

his conduct was so deficient that no reasonable officer

could have

made the same choice

as Whalen--in circumstances

that were assuredly "tense, uncertain, and rapidly evolving .

. . ."

Graham,
______

490 U.S. at 397.

Put

differently, Whalen's

actions, even if mistaken, were not unconstitutional.

-9-9-

Roy was armed; he apparently tried to kick and strike at

the officers; he disobeyed
the

weapons; and

described, for

the

repeated instructions to put down

officers had

other reasons,

thinking him capable of assault.

the suggestion that mace should

already

Apart from

be carried by all policemen,

Roy's expert nowhere explains in his affidavit how the police

could have subdued
have

Roy; and it is not

obvious that it would

been a better solution (as the expert seems to suggest)

for the police to

retreat, leaving an intoxicated armed

on the premises--one who

had just now committed

man

an apparent

felony in the presence of the police.

Nor is it at all plain that the police could, or should,
have kept their distance.

Leaving aside the indications that

Roy moved toward them, one might easily suppose that the best
chance the police had

to subdue him without shooting

get close enough to push him

him.

was to

over or wrest the weapons

from

The police may have done the wrong thing but they were

not "plainly

incompetent" nor

proscribed."

Anderson,
________

Farrell, 765 F.2d

_______

1, 5

were

483 U.S.

their actions

at 638-39.

(1st Cir. 1985)

"clearly

Cf. Floyd
___ _____

(conduct "at

v.

least

arguabl[y]" justified).
We

have

labored over

this

Court's objective reasonableness

of

articulating a

Court's

language.

more
What

single

standard--without any

concrete or
can

point--the Supreme

be

-10-10-

precise

said

is

gloss of
that

the

hope
the
term

reasonableness

is

contexts; and in

used

in

different

this one--the

ways

in

use of deadly

different

force by

the

police in dangerous situations--the Supreme Court has allowed

more latitude than might

be customary in a simple

involving careless driving.

or

concepts

believed"

like

what

Terms like "plainly incompetent"

"a reasonable

officer

general, but

they add

are inherently

tort case

could

have

nuance and

provide a sense of direction.

These

phrases do not

automatically lend

effective jury instructions.

held

that it

excessive

would be

force

must

themselves to

On the contrary, this court has

unsuitable to
be "clearly"

instruct a
established

liability; we

reasoned that the term could

into thinking

that the

burden of

jury that
to justify

confuse the jury

proof was

something more

than preponderance of the evidence, as in the

formula "clear

and convincing evidence" often used to heighten the burden of

proof in fraud cases.
Cir. 1994).

Tatro v. Kervin, 1994 WL

_____
______

But we are

663805 (1st

concerned here not with proof of raw

facts but whether, on known or assumed facts, police behavior

can

be deemed

egregious enough

to submit

the matter

to a

jury.
The

remaining

defendants

carefully addressed in the

have little
force

or

to add.

The

encourage Whalen

and

the state

claims

were

district court's decision, and we

other officers did
to

do so.

not use deadly

Compare Gutierrez-

_______ __________

-11-11-

Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989).

_________
_________
the

police

chief and

the

town,

nothing

in the

As for
expert's

affidavit would make anyone think that the failure to provide

mace

was so

unusual

or

patently

"deliberate indifference"
Canton
______

under

improper as

the demanding

v. Harris, 489 U.S. 378 (1989).

______

so held on

essentially similar facts

to

reflect

standard

of

The Eleventh Circuit

in McKinney v.
________

DeKalb
______

County, Georgia, 997 F.2d 1440 (11th Cir. 1993).

_______________
As for the claims
14

Maine Rev.

entity, with

Stat. Ann.

is

says that
liable for

unspecified "machinery or

or stationary."

include the

8104-A

certain exceptions,

acts" involving
mobile

under Maine law, Roy points

police use

out that

a government
"negligent

equipment whether

Roy asserts that this language must

of firearms

and establishes

a bare

negligence

standard

for

this

case.

This

is perhaps

literally permissible reading of an ambiguous statute but one

that

strikes the reader as

offers no

precedent for

a trifle unlikely.

reading this

Roy's brief

statute

to apply

to

police weaponry.
At

the

same

time,

another

Maine

statute

provides

explicit immunity for official discretionary action, 14 Maine

Rev.

Stat.

Ann.

8111(1)(c),

and

Maine

case

law

has

construed this latter statute to apply to claims of excessive

force.

Leach v. Betters,
_____
_______

best, the

records support

599 A.2d 424, 426 (Me.

the conclusion that

1991) ("At
the officers

-12-12-

may have used more

no

force than was necessary but

it contains

suggestion that they used more force than they reasonably

thought to be necessary.").
to think

that Maine

imposes

Given Leach, we have

_____
more stringent

no reason

limits on

the

police
true.

than does
See
___

federal law;

Leach, 599
_____

indeed, the

A.2d at 426

"wanton" conduct).
Affirmed.
________

-13-13-

reverse may

(possible exception
________

be
for