ESTATE OF Timоthy DEVINE, Plaintiff-Appellant, v. Louis Fusaro, Jr., Steven Rief, Michael Avery, Kevin Cook, Defendants-Appellees.
No. 16-414-cv
United States Court of Appeals, Second Circuit.
January 23, 2017
670 F. App‘x 61
FOR APPELLEES: Matthew B. Beizer, Assistant Attorney General, for George Jepsen, Attorney General of the State of Connecticut, Hartford, Connecticut.
PRESENT: REENA RAGGI, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges.
SUMMARY ORDER
Plaintiff Estate of Timothy Devine (“the Estate“) appeals from an award of summary judgment on the basis of qualified immunity in favor of defendants Louis Fusaro, Jr., Steven Rief, Michael Avery, and
1. Qualified Immunity
“Qualified immunity protects officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Morse v. Fusto, 804 F.3d 538, 550 (2d Cir. 2015) (internal quotation marks omitted). To determine whether a defendant is entitled to qualified immunity, courts ask whether the facts shown “make out a violation of a constitutional right” and “whether the right at issue was ‘clearly established’ at the time of defendant‘s alleged misconduсt.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). The
Evеn when we view the record in the light most favorable to the Estate, we conclude, as the district court did, that Defendants are entitled to qualified immunity because the аsserted right, i.e., Devine‘s right to be free from less-than-lethal force in the circumstances, was not clearly established in the described circumstances. As the district cоurt observed, three undisputed facts support that conclusion: (1) the police used force designed to be less-than-lethal, rather than deadly; (2) they used such forсe against a man reasonably believed to be suicidal and armed with a loaded gun while occupying public property; and (3) they used such force only aftеr several hours of a standoff and negotiations that had not convinced Devine to surrender his gun.
In its reply brief, the Estate asserts that the focus of analysis ought to be whether “a non-threatening person in a mental health crisis who was passively non-responsive to police commands to surrender his weapon had the right to bе seized by law enforcement without the use of less-than-lethal force.” Appellant‘s Reply Br. 15. Even if this argument was properly before us, see Bishop v. Wells Fargo & Co., 823 F.3d 35, 50 (2d Cir. 2016) (observing that issues raisеd for first time in reply brief are deemed waived and will normally not be considered on appeal), it fails because it minimizes the critical fact of Devine being armed with a deadly weapon. While the Estate maintains that Devine never intended to harm anyone other than himself, the possession of a firearm is nevertheless а volatile circumstance, made all the more so by Devine‘s refusal to surrender it and, thus, relevant to whether it was objectively reasonable for Defendants tо believe that their actions were lawful.1 See Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir. 2013).
Insofar as the Estate points to evidence that one defendant asserted, prior to the use of rubber batons, that, if Dеvine
The Estate thеn points to a series of out-of-circuit cases to argue that Devine‘s right not to be subjected to rubber baton projectiles was clearly established. In nonе of these cases, however, were such projectiles used against a person who for hours refused to surrender a firearm that he continued to brandish. Seе Glenn v. Washington County, 673 F.3d 864, 866, 873 (9th Cir. 2011) (reversing summary judgment for defendant officers who had used beanbag shotgun and semiautomatic weapons; i.e., deadly force, within four minutes of encountering distraught, intoxicated individual who was threatening to kill himself with pocketknife, distinguishing case from those in which decedents possessed “more dangerous weapon[s],” including guns); Mercado v. City of Orlando, 407 F.3d 1152, 1156, 1160-61 (11th Cir. 2005) (reversing summary judgmеnt for officer who, at close range, fired rubber baton at head of plaintiff—considered deadly force—while plaintiff was armed only with knife); Deorle v. Rutherford, 272 F.3d 1272, 1275 (9th Cir. 2001) (reversing summary judgment for оfficer who had fired beanbag round into face of unarmed, mentally ill individual who was approaching officer); see also Phillips v. Cmty. Ins. Corp., 678 F.3d 513, 526-27 (7th Cir. 2012) (reversing qualified immunity where policе shot unarmed, not-resisting plaintiff with rubber batons). In sum, in none of the cited cases was the decedent or plaintiff brandishing a loaded firearm. Moreover, in none was the usе of less-than-deadly force a strategy put into place after hours of negotiation had not disarmed plaintiff.
We accept as true the Estate‘s assertion that an interval of several minutes passed between the two rounds of rubber baton projectiles fired by Defendants, during which Devine stated, “[W]hat are you doing? . . . You guys are going to make me do this[.]” Appellant‘s Br. 12. But the Estate points to no law clearly establishing that, following such a statement, the firing of a second round of rubber batons in a less-than-lethal manner violated Devine‘s clearly established constitutional right to be free from excessive force.
We acknowledge the tragic circumstances of this case; nevertheless, because the law afforded the defendant officers no “fair and clear warning” that their conduct might violate Devine‘s constitutional rights, we affirm the qualified-immunity-based judgment. Ashcroft v. al-Kidd, 563 U.S. 731, 746, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (Kennedy, J., concurring) (internal quotation marks omitted).
2. State-Law Claims
The Estate challenges the district court‘s decision to decline to exercise supplemental jurisdiction over its state-law claims and to dismiss them without prejudice. We identify no abuse of discretion by the district court in that dismissal and, therefore, affirm. See Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014) (“In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well.” (internal quotation marks omitted)).
3. Conclusion
We have considered the Estate‘s remaining arguments and conclude that they