McKenney v. Mangino, 2017 U.S. App. LEXIS 19548

Background

On April 12, 2014, Stephen McKenney, a suicidal, armed 66-year-old, wandered in and out of his garage/driveway in Windham, Maine; officers twice told him to drop a .357 but he did not comply.
Deputy Nicholas Mangino (defendant) arrived as backup, armed with an AR-15, and took cover roughly 100 feet from the house; a civilian ride-along sat in Mangino’s cruiser.
Over ~7 minutes McKenney moved slowly, at times raising the gun, but never clearly pointed it at officers; no warnings that deadly force would be used were given.
When McKenney was about 69 feet from Mangino and walking toward him, Mangino fired one shot to the torso and a second shot to the head, killing McKenney.
McKenney’s widow sued under 42 U.S.C. § 1983 asserting a Fourth Amendment excessive-force claim; the district court denied Mangino summary judgment on qualified immunity grounds.
On interlocutory appeal, Mangino seeks review of the denial; the First Circuit dismissed some arguments for lack of jurisdiction and otherwise affirmed the denial of summary judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Appellate jurisdiction over interlocutory denial of qualified immunity	McKenney: denial is reviewable to the extent the appeal raises purely legal questions about clearly established law	Mangino: denial is appealable because his arguments are purely legal	Court: jurisdiction exists only for purely legal challenges; factbound challenges are non-appealable and dismissed for lack of jurisdiction
Whether Mangino violated clearly established Fourth Amendment law (qualified immunity step two)	McKenney: on plaintiff’s facts, threat was not imminent and less-lethal options existed; precedents put an officer on notice that shooting a distant, slow-moving, suicidal person without warnings is unlawful	Mangino: reasonable officer could have believed McKenney posed imminent danger when approaching with a gun; law was not clearly established to bar the shooting	Court: existing precedents (suicidal, armed, slow, distant, no warning) were sufficiently particularized to put a reasonable officer on notice; denial of qualified immunity was proper
Appropriateness of factual recharacterization on interlocutory appeal	McKenney: facts must be taken in plaintiff’s favor for interlocutory review	Mangino: asks court to accept his view of facts (e.g., that McKenney pointed at him) and rely on record evidence he emphasizes	Court: may not accept fact disputes or a different ‘spin’ on the record on interlocutory review; Mangino’s factbound arguments are beyond jurisdiction

Key Cases Cited

Harlow v. Fitzgerald, 457 U.S. 800 (establishes qualified immunity standard)
Mitchell v. Forsyth, 472 U.S. 511 (qualified immunity includes immunity from suit)
Johnson v. Jones, 515 U.S. 304 (limits interlocutory appeals of denials of qualified immunity to purely legal questions)
Graham v. Connor, 490 U.S. 386 (objectively reasonable standard for excessive-force claims)
Tennessee v. Garner, 471 U.S. 1 (deadly force lawful only if suspect poses immediate threat)
Brosseau v. Haugen, 543 U.S. 194 (warning against excessive generalization in clearly established-law analysis)
Ashcroft v. al-Kidd, 563 U.S. 731 (no need for case directly on point to deny immunity)
White v. Pauly, 137 S. Ct. 548 (qualified immunity shields all but plainly incompetent or knowing violators)
Jarrett v. Town of Yarmouth, 331 F.3d 140 (First Circuit: deadly force requires immediate threat)
Whitfield v. Meléndez-Rivera, 431 F.3d 1 (fact questions about perceived threat are for the jury)