Conlogue v. HamiltonConlogue v. Hamilton
I. BACKGROUND
When reviewing the entry of summary judgment, our task demands that we view the facts in the light most favorable to the non-movant (here, the plaintiff). See Savard v. Rhode Island, 338 F.3d 23, 26 (1st Cir. 2003) (en banc). Here, however, the raw facts are largely undisputed. We set them forth below, urging the reader who hungers for more exegetic detail to consult the district court‘s rescript.
This case has its genesis in a set of facts that played out on August 3, 2014, in front of a deserted restaurant in the bucolic town of LaGrange, Maine. At 3:41 p.m., DanaRae Conlogue
Thomas Fiske, a Maine state trooper, arrived at around 4:17 p.m. and positioned himself with two other troopers on the lawn of a residence across the street from the restaurant (some 200 feet away). Defendant-appellee Scott Hamilton, a sergeant and a member of the state police‘s tactical team, arrived shortly thereafter. Hamilton had been specially trained in the use of deadly force in high-risk situations. From his vantage point, he could not see the other troopers but learned of their position from communications broadcast over a police-operated radio.1 Hamilton also learned that Conlogue was brandishing a semi-automatic handgun — a fact that helped Hamilton to calibrate the level of threat posed.
Sergeant Sheehan, using a loudspeaker, repeatedly asked Conlogue to put down his weapon, assuring him that the officers were worried about him and were there to help. When Conlogue responded by yelling obscenities, the officers knew that Conlogue could hear Sheehan‘s words. Even so, Sergeant Sheehan‘s warnings seemed only to escalate the tension. Conlogue went to his car, retrieved a knife, placed it in his back pocket, moved back toward the troopers, shaped his fingers like a gun, and pointed the simulated gun at Fiske and the other troopers.
Next, Conlogue approached the road that separated him from the troopers. He paused to draw a line in the dirt, and Sheehan assured him that no officers would cross that line.
Despite continued warnings to put down his weapon and cooperate with the police, Conlogue refused to comply. He displayed a fully loaded magazine, placed the magazine into his gun, and pointed it at a forty-five degree angle over the heads of Fiske and the two other troopers. This action elicited a spate of warnings from Sheehan. Undeterred, Conlogue alternated between pointing the gun at his own head and pointing it in the direction of the troopers (at an angle of roughly forty-five degrees).
When Conlogue flexed his wrist and extended the gun in front of his body, Fiske immediately related over the radio that the gun was “[a]bout forty-five degrees . . . over our heads” and added that “I‘m not comfortable.” To Hamilton, Fiske‘s tone conveyed fear.2 Sheehan spoke forcefully to Conlogue, demanding that “[y]ou need to put the gun down. You need to put the gun down right now!” Hamilton neither saw nor heard anything indicating that Conlogue was of a mind to comply. After waiting
We fast-forward to May of 2016 when Mrs. Conlogue, in her capacity as personal representative of her husband‘s estate, brought suit in a Maine state court. Her complaint asserted claims for excessive force under
The parties engaged in pretrial discovery. Although the complaint originally named other defendants in addition to Hamilton, those defendants were dropped along the way. Following the completion of discovery, the parties (including Hamilton, as the sole remaining defendant) filed cross-motions for summary judgment. Hamilton‘s motion raised, inter alia, a qualified immunity defense. After marshaling the facts and carefully surveying the applicable case law, the district court found no precedent suggesting “that an officer‘s use of deadly force is objectively unreasonable when a person points a loaded gun at a forty-five degree angle over the heads of other officers after being warned repeatedly to drop the gun.” Conlogue, 2017 WL 5339895, at *11. In addition, the court concluded that Hamilton “reasonably determined that Conlogue posed an immediate threat to
II. ANALYSIS
We review an order granting or denying summary judgment de novo. See McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017), cert. denied, 138 S. Ct. 1311 (2018). The pendency of cross-motions for summary judgment does not alter the standard of review. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). Because the plaintiff challenges only the grant of summary judgment on her federal claims, we limit our analysis accordingly.
Qualified immunity inoculates government officials from civil liability based on their discretionary actions and decisions which, although injurious, “do[] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As we have acknowledged, “[t]he doctrine‘s prophylactic sweep is
The immunity afforded by this doctrine is particularly important for police officers in order not to “unduly inhibit the assiduous discharge of their dut[y]” to protect the community at large. Savard, 338 F.3d at 27. In such cases, the reasonableness calculus “must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary.” Graham v. Connor, 490 U.S. 386, 396-97 (1989).
Where, as here, a defendant invokes the defense of qualified immunity, the necessary analysis is two-pronged. See McKenney, 873 F.3d at 81. The court must determine whether the defendant violated the plaintiff‘s constitutional rights. See id. It also must determine whether the allegedly abridged right was “clearly established” at the time of the defendant‘s claimed misconduct. Id. Although this description implies a set sequence, these prongs “need not be taken in order.” Alfano, 847 F.3d at 75 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). A court
The second prong (whether the law was clearly established at the time of the incident) is itself divisible into two inquiries. First, the plaintiff must identify either controlling authority or a consensus of persuasive authority sufficient to put an officer on notice that his conduct fell short of the constitutional norm. See McKenney, 873 F.3d at 81. Second, the plaintiff must show that an objectively reasonable officer would have known that his conduct violated the law. See id. Because many law enforcement encounters arise from confusing, high-stakes circumstances, this second inquiry provides some breathing room for a police officer even if he has made a mistake (albeit a reasonable one) about the lawfulness of his conduct. See Jennings v. Jones, 499 F.3d 2, 19 (1st Cir. 2007) (noting that this inquiry “affords protection to officers who reasonably, yet mistakenly, employ excessive force in violation of the Fourth Amendment“).
These two parts of the second prong need not be considered in sequence. After all, an officer seeking qualified immunity may be entitled to its protective shield based solely on the result of the second inquiry. Put simply, even if the
Even if we assume arguendo that Hamilton‘s action was contrary to a consensus of controlling authority, we are satisfied that an objectively reasonable officer standing in Hamilton‘s shoes would have thought it appropriate to deploy deadly force against an armed man who, after a nearly three-and-one-half-hour standoff in which he was repeatedly warned to drop his weapon, persisted in pointing a loaded semi-automatic firearm narrowly above the heads of three officers and within easy firing range. We explain briefly.
We recognize, of course, that our analysis “must be particularized to the facts of the case.” McKenney, 873 F.3d at 82 (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per curiam)). “Even so, there need not be a case directly on point” for us to draw a conclusion as to the reasonableness of the defendant‘s conduct. Id. at 82-83. Some general standards serve as useful guideposts.
To begin, the case law makes pellucid that two principal requirements must be satisfied before a police officer can lawfully use deadly force. For one thing, “the use of deadly force is constitutional only if, at a minimum, a suspect poses an immediate threat to police officers or civilians.” Jarrett v. Town of Yarmouth, 331 F.3d 140, 149 (1st Cir. 2003) (per curiam). For another thing, the suspect ordinarily must be warned (at least when a warning is feasible) before a police officer may use deadly force. See McKenney, 873 F.3d at 82. Although there is no standardized script for such a warning, the key is that the warning must be adequate in light of the circumstances then obtaining. See Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st Cir. 2005).
In the case at hand, the undisputed facts make it abundantly clear both that it was reasonable for Hamilton to believe that Conlogue was an imminent threat to others and that he was repeatedly warned to drop his weapon. The standoff was prompted by a call for help from Conlogue‘s wife (the plaintiff), who reported that he was threatening his own life and that he happened to be “very good with guns.” The officers who responded were able to confirm a portion of this worrisome account: Conlogue was seated near his parked car with a semi-automatic handgun pointed at his head.
Although Conlogue appeared at this time to be a threat only to himself, the situation soon changed. Conlogue began to stir and Sheehan admonished him to put down his weapon. Conlogue‘s reply was profane, and he proceeded to retrieve a knife from his car.
The record makes manifest that Hamilton was keenly aware of the threat that Conlogue posed. So, too, he was aware that Conlogue had been told several times to drop his weapon but had refused to comply. From everything that Hamilton saw and heard, Conlogue was continuing to escalate the confrontation — arming himself with a knife, making threatening gestures, moving closer to the troopers, and pointing his gun in their direction. When Fiske reported that Conlogue was inching closer to the troopers and pointing his gun in their direction, Hamilton heard what he reasonably perceived as fear in Fiske‘s voice. Hamilton had reason to believe that Fiske himself was at least partially exposed, making Fiske more vulnerable were Conlogue to open fire. After Conlogue failed to heed yet another warning to drop his gun and Fiske announced his growing discomfort, Hamilton fired the fatal shot.
In our view, these facts compel a finding that Hamilton was entitled to qualified immunity. We cannot say that an objectively reasonable police officer standing in Hamilton‘s shoes would have thought it a violation of the law to deploy deadly force in these highly charged circumstances. Under these circumstances, Hamilton reasonably perceived Conlogue to be an imminent threat, with no less drastic means of remediation at hand.
The plaintiff resists this conclusion. Although the plaintiff acknowledges the undisputed fact that Hamilton “was told right before firing the shot that [Conlogue] had the gun pointed in the air over the officers’ heads,” she nevertheless asserts that the use of deadly force was objectively unreasonable. To this end, she argues that Hamilton could not have regarded Conlogue
This argument is belied by the facts. Conlogue‘s gun was pointed in the direction of the troopers — and the fact that he was aiming it over their heads is cold comfort. Practically speaking, there is very little difference in the threat level between a gun aimed directly at a person‘s head and a gun aimed at a forty-five degree angle over the person‘s head. The plaintiff‘s argument is also belied by the cases that she cites. Those cases say quite clearly that the use of deadly force may be reasonable if an individual is holding the weapon in a way that threatens others on the scene. See, e.g., Cooper v. Sheehan, 735 F.3d 153, 159 (4th Cir. 2013) (explaining that “deadly force may only be used by a police officer when, based on a reasonable assessment, the officer or another person is threatened with the weapon” (emphasis in original)); id. at 159 n.9 (noting that an armed suspect may pose a threat even without “pointing, aiming, or firing his weapon“); see also Napier v. Town of Windham, 187 F.3d 177, 187-88 (1st Cir. 1999) (concluding that officer need not have gun pointed directly at him in order reasonably to fear danger). It follows, we think, that when the plaintiff suggests that a gun must be pointed directly at an officer in order to be threatening, she is simply wrong.
Taking a somewhat different tack, the plaintiff suggests that the length of the standoff (approximately three-and-one-half hours) cuts against a finding of reasonableness. We do not agree.
As a fallback, the plaintiff argues that our decision in McKenney is a testament to Hamilton‘s lack of objective reasonableness. This argument misreads McKenney. There, we considered whether a police officer was entitled to qualified immunity when he fatally shot a suicidal man who was walking slowly in his own driveway, dangling a gun at his side and not pointing it at anyone. See 873 F.3d at 84. The officer deployed deadly force a full six minutes after the decedent ignored a warning to drop his weapon. See id. We found that the officer was not entitled to qualified immunity, basing that conclusion on the particular facts of the case, including the absence of any real threat of imminent harm to others. See id. at 81-83.
The case at hand bears some superficial similarities to McKenney, but the two cases are readily distinguishable. Unlike in McKenney, the gun-wielder‘s behavior in this case reasonably
There are also important temporal differences between the two cases. In McKenney, six minutes elapsed between when the decedent raised the gun and when he was shot. See id. at 84. In the interim, he had lowered the gun so that it was pointing toward the ground. See id. Here, in contrast, Conlogue raised the gun and pointed it in the troopers’ direction only moments before he was shot.
As a counterweight, the plaintiff notes that the McKenney court spoke of the importance of physical proximity to the reasonableness calculus, see id. at 82, and questions what she perceives as a lack of proximity here. Proximity, though, is a relative measurement. Certainly, the presence of a pointed firearm changes the calculation. When an individual is pointing a loaded firearm, anyone within firing range is in proximity to the life-threatening danger.
To say more about the comparison between this case and McKenney would be supererogatory. We conclude, without serious question, that these cases are not fair congeners. Thus, McKenney
Of course, these two cases do share a tragic result — tragic for the person who lost his life, for the family left behind, and for the police officer who fired the fatal bullet. In the last analysis, though, each case is dependent on its own facts. The doctrine of qualified immunity must flex to those tense, uncertain, and often life-threatening situations in which an officer may find himself embroiled. Because there is no principled way we can say that an objectively reasonable officer in Hamilton‘s position would have known that he was violating the law by deploying deadly force against Conlogue, the district court did not err in cloaking Hamilton in the mantle of qualified immunity.
III. CONCLUSION
We need go no further. As we said at the outset, this is a tragic case. But the facts of record make pellucid that the police were faced with a nightmare scenario — a scenario in which an armed and disturbed individual wholly disregarded serial entreaties to disarm and engaged in a course of conduct that
Affirmed.