THE
Civil Action No. 1:18-cv-11152-IT
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
December 2, 2020
TALWANI, D.J.
MEMORANDUM & ORDER
December 2, 2020
TALWANI, D.J.
On June 2, 2015, law enforcement officers in Boston, Massachusetts, shot and killed Usaamah Abdullah Rahim. Plaintiff Rahimah Rahim,1 in her capacity as the personal representative of Rahim‘s estate, filed suit against the United States, Federal Bureau of Investigation (“FBI“) agent John Doe 1, and Boston police officer John Doe 2. Now pending before the court are Defendants’ pre-discovery Motions for Summary Judgment [#38], [#40], [#71], contending, inter alia, that the individual Defendants are protected by qualified immunity
The court rejects Defendants’ attempt to litigate this case through factual accounts that Plaintiff has not been permitted to test in discovery. And in the absence of those portions of the record, Defendants have failed to demonstrate the absence of any genuine issues of material fact. Accordingly, Defendants’ motions are DENIED without prejudice to renewal after Plaintiff has had an opportunity to conduct limited discovery, including depositions of individuals on whose testimony Defendants seek to rely.
I. Procedural History
Plaintiff alleges that the killing violated Rahim‘s Fourth Amendment rights pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Am. Compl. [#22]. Plaintiff also alleges that Defendants are liable under state law for negligence, wrongful death, assault, and battery. Id.2 The United States filed notice to substitute as the defendant for each of Plaintiff‘s claims against John Doe 1 except the Bivens claim, Notice [#35]; Order [#55], and as a result those claims are dismissed against John Doe 1 and are now treated as claims under the Federal Tort Claims Act (“FTCA“),
No discovery has taken place. See Scheduling Order [#15]; Elec. Clerk‘s Notes [#58]. In December 2018, John Doe 2 filed a Motion to Dismiss [#36] in which he relied on facts set forth in a Report of the Suffolk County District Attorney Daniel F. Conley on Findings in the Shooting Death of Usaamah Abdullah Rahim (“District Attorney‘s Report“) [#37-1]. The court concluded that the District Attorney‘s Report [#37-1] was not properly considered on a motion to dismiss, where it had been mentioned but not adopted in the Amended Complaint [#22], and denied John Doe 2‘s Motion to Dismiss [#36] without prejudice to John Doe 2 reasserting his legal arguments on a motion for summary judgment. See Mem. & Order [#72]. Meanwhile, the United States and John Doe 1 filed the pending Motions for Summary Judgment [#38], [#40], and Statement of Undisputed Material Facts [#42], and John Doe 2 has now filed his Motion for Summary Judgment [#71], incorporating arguments and exhibits submitted by John Doe 1 in support of his Motion for Summary Judgment [#40].3 Plaintiff has opposed the motions, see Oppositions [#52], [#53]; Statements of Material Fact [#50], [#51], [#59].4 Plaintiff‘s counsel also
II. Standard of Review
Qualified immunity is an “immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The Supreme Court has therefore “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). A “driving force” behind the doctrine is to “ensure that ‘insubstantial claims’ against government officials be resolved prior to discovery.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). A qualified immunity defense may thus be asserted on a motion to dismiss where the allegations of the complaint fail to state a plausible claim for relief, and if successful, may thereby avoid discovery altogether. See Ashcroft v. Iqbal, 556 U.S. 662, 684-85 (2009).
Where the allegations of the complaint, when accepted as true, do raise a plausible claim for relief, a qualified immunity defense may be raised on a motion for summary judgment. Under Rule 56, summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Even if the movant meets its burden, to prevent a court from “swinging the summary judgment axe too hastily,” a responding party may move pursuant to
III. Evidence Considered on Pre-Discovery Summary Judgment
“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
Plaintiff further objects that she has not had an opportunity to depose the officers whose declarations have been offered. Pl‘s Opp. to Officers’ Mots. 12 [#52]; Pl‘s Supp. Rule 56(d) Aff. [#73]. She argues that she should be permitted to conduct discovery prior to the court ruling on the pending motions.7 Pl‘s Opp. to Officers’ Mots. 12 [#52]; Pl‘s Supp. Rule 56(d) Aff. [#73]. She expects, based on these interviews, to uncover information contradicting Defendants’ versions of events, including the reasonableness of the officers’ behavior in shooting Rahim. Pl‘s Supp. Rule 56(d) Aff. [#73]. The government argues that the court may disregard Plaintiff‘s “speculation” that the evidence requested will contradict the evidence currently in the summary judgment record. John Doe 1‘s Mem. in Support of Mot. for Summ. J. (“John Doe 1‘s Mem.“) 21 [#41] (citing DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005)). But the threshold question that the court must consider is whether the evidence offered by Defendants is properly part of the summary judgment record.
Rule 56 allows affidavits or declarations to be used to support or oppose a motion where they are “made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Defendants do not claim that they would be permitted to testify to these matters at trial without cross-examination, but they nonetheless contend that they may offer such untested affidavits here. See United States Mem. in Support of Mot. for Summ. J. (“U.S. Mem.“) 12 [#39]; John Doe 1‘s Mem. 21 [#41]. They rely on case law suggesting that a Plaintiff has no cause to complain where she has not produced affirmative evidence that an officer is lying. See, e.g., U.S. Mem. 12 [#39] (quoting Mitchell v. Miller, 790 F.3d 73, 79 n.4 (1st Cir. 2015)) (“A genuine dispute as to a material fact cannot be created by relying on the hope that the jury will not trust the credibility of the witness. There must be some affirmative
IV. Factual Background
For purposes of summary judgment, drawing all possible inferences in Plaintiff‘s favor, and having sustained Plaintiff‘s objections to Defendants’ proffered evidence as set forth above, the court finds the facts as follows.
Defendant John Doe 1 is a Special Agent in the Boston Field Office of the FBI. Pl‘s SOF Resp. ¶¶ 1-2, 4 [#59]. Defendant John Doe 2 is a Detective for the Boston Police Department. Id. at ¶ 2. In the spring of 2015, John Doe 1 and John Doe 2, along with other members of the FBI Joint Terrorism Task Force (“JTTF“) were investigating Rahim for alleged ties to the Islamic State of Iraq and the Levant (“ISIL“), a foreign terrorist organization. Id. at ¶ 4.
On June 2, 2015, at 5:18 a.m., the JTTF intercepted a phone call between Rahim and David Wright. Id. at ¶ 7. During the call, Rahim told Wright that he needed to “act sooner than anticipated” and that he could not wait until the Fourth of July. 5:18 a.m. Call Transcript 1-2 [#42-6]. Rahim said that he was not trying to go to New York but was “gonna be on vacation, right here in Massachusetts.” Id. at 3. He also stated that he was “going after them, those boys in blue” because they were “the easiest target” and that he would “make it to jannah [paradise], because this dunyah [worldly life] is not worth it, it‘s not worth it.” Id. at 4 (translation provided in transcript). Rahim told Wright that it would be “local,” that it would be “if not today, then tomorrow,” that it “might even happen today,” and that he did not want to “give it another day.” Id. at 4-5, 9. He also said, “if I can meet my Lord sooner than that, why should I have to wait a month?” Id. at 5. He told Wright:
My objective is that I just want to meet Allah [God], because I know that . . . the akhirah [afterlife] is better than this dunyah [worldly life.] And . . . since Jihad is a way out, it‘s a way to-to be with Allah [God], and to get out of this dunayh [worldly life], and you know, maybe to be amongst the company of the righteous. . . . And I already gave my bi‘ah [allegiance], so it‘s not a random vigilante attack. It is what it is; I have my bases covered.
Id. at 7. Rahim also said that this would be his last day of work. Id. at 6. Rahim and Wright discussed Rahim‘s will and the distribution of his possessions, as well as how to destroy his cell phone and the data on his laptop. Id. at 6-7, 9-10. The conversation ended with Rahim stating that he would not go into work that day and would instead get ready and bring money over to Wright at his apartment. Id. at 11.
Boston police officer John Doe 2 relayed an order to other JTTF officers that Rahim was not to be allowed to board public transportation. Pl‘s SOF Resp. ¶ 14 [#59]. John Doe 2 then asked members of the surveillance team to assemble by his vehicle to plan an operation to prevent Rahim from getting on the bus. Id.
At some point, however, the officer calling dispatch asked to have units “stay just short of the Burger King and keep an eye on the bus stop that‘s right in front of the CVS sign.” Dispatch Recording Transcript 6 [#52-2]. The officer then stated: “If our subject is making his way here now, we‘re going to take him out at that spot. We‘ll just need them to come up for backup. It will be plain clothes units, about four, taking a black male right in front of that bus stop, and that should be happening in the next few minutes.” Id. (emphasis added).
Rahim spoke on the phone as he walked towards the bus stop.8 Pl‘s SOF Resp. ¶ 18 [#59]. John Doe 2 approached Rahim, and, at the same time, John Doe 1 and other officers jogged to catch up with John Doe 2. Id.; Surveillance Video [#42-10]. Rahim was still on the phone, and the following interaction was recorded:
Officer 1: “Put your hands up please.”
Rahim: “Do I know you?”
Officer 1: “Put your hands up!”
Officer 2: “Put your hands up.”
Officer 1: “Drop it! Drop it right now!”
Rahim: “Why don‘t you drop yours?”
Officer 1: “Drop it!”
Rahim: “Why don‘t you drop yours?”
Officer 1: “Drop it!”
Rahim: “Why don‘t you drop yours?”
Officer 1: “Drop it!”
Rahim: “Why don‘t you drop yours?”
Officer 1: “Drop it!”
Rahim: “Drop yours!”
Officer 1: “Drop it!”
Rahim: “Drop yours!”
Officer 1: [unintelligible]
Rahim: “Drop yours!”
Rahim: “Drop yours!”
Officer 1: [Unintelligible]
Rahim: “Drop yours!”
Officer 1: [Unintelligible]
Rahim: “[Unintelligible] over here. Come on! Won‘t you shoot me?”
[Shooting sounds]
7:15 a.m. Call Recording [#42-8]; 7:15 a.m. Call Transcript [#42-9].9
Although the surveillance video footage is from some distance away and not terribly
Plaintiff submitted statements taken by the police from five civilian witnesses. Witness A, a ten-year-old child, woke up to shouts of “put your hands up” and then heard two gunshots, at which point he looked out his window and saw someone fall to the ground. Witness A Stmt. 2:7; 8:20-9:25; 11:18-13:25 [#52-8]. Witness B, a worker in a nearby office, saw police approach a man with their guns drawn and form a half circle around him, then watched the man walk towards officers before he was shot. Witness B Stmt. 2:20-22; 4:10-5:15; 14:10-15:15 [#52-9]. Witness B did not see anything in the man‘s hands but did see officers throw something away from him after he was shot. Id. at 5:16-23. Witness C heard a gunshot while walking into a Dunkin’ Donuts. Witness C Stmt. 3:10-13; 6:6-16 [#52-10]. He took cover, and when he looked out to see what was happening, he saw a man on the ground and did not see a knife. Id. at 9:8-10:7; 19:10-20. Witness D, another worker in a nearby building, saw police circled around a man and stated that Rahim continued to walk in the parking lot with his hands down towards some of the officers. Witness D Stmt. 3:12-21; 10:11-18 [#52-11]. He saw police walk in front of and behind the man and then saw the shooting, stating that police then “moved something from his hand and threw it away.” Id. at 4:1-11. Witness E, an off-duty police officer driving past the scene, saw officers surrounding the man during the confrontation and shouting at him. 4:11-24 [#52-12]. Witness E heard the gunshots moments later. Id. at 5:1-5. He then pulled over to assist fellow officers. Id. at 5:22-6:5.
V. Discussion
A. Bivens Claims
Plaintiff seeks damages from Defendants, alleging that John Doe 1 and John Doe 2 violated Rahim‘s Fourth Amendment right to be free from unreasonable seizure. Pl‘s Opp. to Officers’ Mots. 9-11 [#52]. Defendants move for summary judgment, asserting that John Doe 1 and John Doe 2 are entitled to qualified immunity because (1) their actions were reasonable and therefore not a violation of Rahim‘s constitutional rights and (2) even if they did violate Rahim‘s constitutional rights, those rights were not “clearly established” at the time of the shooting. John Doe 1‘s Mem. 11-20 [#41]. The court considers these arguments in turn.
1. Fourth Amendment Violation
Under Bivens, 403 U.S. at 396-97, a plaintiff has an implied cause of action for constitutional violations committed by federal officials. A Bivens claim is analogous to one brought against state officials under
Plaintiff‘s Bivens claims are premised on the idea that John Doe 1 and John Doe 2 used excessive force in seizing Rahim and thereby violated his Fourth
The reasonableness inquiry is an objective one: “the 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.” Graham, 490 U.S. at 397. This “calculus of reasonableness,” id., is “comparatively generous” to officers facing “potential danger, emergency conditions or other exigent circumstances” and affords them “a fairly wide zone of protection.” Roy v. Inhabitants of City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994). And in borderline cases, “a jury does not automatically get to second-guess these life and death decisions, even though the plaintiff has . . . a plausible claim that the situation could better have been handled differently.” Id.
Defendants argue that the officers had information that Rahim was likely armed with a knife, they repeatedly ordered him to drop his weapon, and he was close enough to be a threat to officer safety. U.S. Mem. 10-11 [#39]. This, they argue, is precisely the type of “split-second judgment” police officers are forced to make, and which [courts] must take into account in assessing an officer‘s actions.” McGrath v. Tavares, 757 F.3d 20, 28 (1st Cir. 2014).
But this was not a sudden, unexpected altercation. Taking the evidence in the light most favorable to Plaintiff, Defendants, who had been instructed to surveil Rahim and to prevent him from boarding a bus, announced to dispatch that they were going to take Rahim out if he arrived at the bus stop. Once he arrived there, they approached Rahim with guns drawn and did not identify themselves.11 An examination of reasonableness must be sensitive not just to the split-second decision made by officers in the apparently life-threatening situation but also to the less hurried decisions made leading up to that moment. See Young, 404 F.3d at 22 (quoting St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995) (“police officers’ actions for our purposes need not be examined solely at the ‘moment of the shooting‘“)). See also Pauly v. White, 874 F.3d 1197, 1219 (10th Cir. 2017), vacated on other grounds, 137 S. Ct. 548, 552 (2017) (“Our precedent recognizes that the reasonableness of the use of force depends not only on whether the officers were in danger at the precise moment that they used force, but also on whether the officers’ own reckless or deliberate conduct during the seizure unreasonably created the need to use such force“) (internal quotations and alterations omitted); Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993) (“Police officers who unreasonably create a physically threatening situation in the midst of a Fourth Amendment seizure cannot be immunized for the use of deadly force“).
If the court were to consider only the moment of the shooting, Defendants would be correct that they have met their burden for Plaintiff to respond and that no new evidence would likely change the outcome. But “[e]verything depends on context.” McKenney, 873 F.3d at 82. “The rule in this circuit is that . . . ‘the court should examine the actions of the government officials leading up to the seizure.‘” Young, 404 F.3d at 22 (quoting St. Hilaire, 71 F.3d at 26). And while the court is properly precluded from second-guessing the actions of police officers after the fact, see Hegarty v. Somerset Cty., 53 F.3d 1367, 1377 (1st Cir. 1995), the court is not required to pretend that crucially important events leading to the use of deadly force did not occur.
While “[t]here is no Constitutional requirement that the police use the least intrusive means available to respond to a situation, . . . the availability and feasibility of non-lethal force options is a factor that courts consider in assessing the reasonableness of a use of deadly force.” McKenney v. Mangino, No. 2:15-CV-00073-JDL, 2017 WL 1365959, at *13 (D. Me. Apr. 12, 2017), aff‘d in part, appeal dismissed in part, 873 F.3d at 78. Moreover, “[a] determination of objective reasonableness ‘will often require examination of the information possessed’ by the defendant officials.” Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002) (quoting Anderson v. Creighton, 483 U.S. at 641). Here, Defendants have offered no admissible evidence regarding (1) the information the officers possessed at the moments leading up to the shooting beyond the statement to dispatch that Rahim was armed with a knife or (2) the officers’ plans, actions, observations, and means available to respond to the situation from the time John Doe 2 asked members of the surveillance team to assemble by his vehicle to plan an operation through the time it was relayed to dispatch that the undercover officers would “take [Rahim] out” if he made his way to the bus stop.
Defendants argue that St. Hilaire is no longer good law after County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546-47 (2019), which they contend stands for the proposition that the reasonableness inquiry is focused on an officer‘s actions at the precise moment deadly force was used. But the Supreme Court‘s holding in Mendez was limited to rejecting the Ninth Circuit‘s so-called “provocation rule” which allowed inquiry into a separate constitutional violation when considering the use of force: “All we hold today is that once a use of force is deemed reasonable under Graham, 490 U.S. at 396, it may not be found unreasonable by reference to some separate constitutional violation.” 137 S. Ct. at 1547 n.*. As another district court has summarized, the Supreme Court did not decide the propriety of considering “unreasonable police conduct prior to the
In sum, where Plaintiff has not had the opportunity to cross-examine the witnesses on whose testimony Defendants rely, and where no discovery that might provide facts bearing on the reasonableness of Defendants’ conduct in the totality of the circumstances has been permitted, the court cannot, at this time, find that Defendants “ha[ve] met [their] burden of coming forward with proof of the absence of any genuine issues of material fact,” Celotex Corp, 477 U.S. at 322, as to whether Defendants violated Rahim‘s constitutional right to be free from an unreasonable seizure.
2. Clearly Established Rights
This does not end the court‘s analysis, however, as the doctrine of qualified immunity protects government officials whose “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson, 555 U.S. at 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1852)). When a defendant asserts a qualified immunity defense, the plaintiff must meet a heavy two-part burden showing that, viewing all of the facts in her favor, no reasonable jury could find (1) that the defendants violated the plaintiff‘s—in this case, the decedent‘s—constitutional rights and (2) that the allegedly abridged right was “clearly established” at the time of the claimed misconduct. Conlogue v. Hamilton, 906 F.3d 150, 155 (1st Cir. 2018). Here, the court has already found that further discovery is necessary to determine whether Defendants acted unreasonably and therefore violated Rahim‘s Fourth Amendment rights.12 The court therefore turns to the issue of whether the alleged right was clearly established at the time of the shooting. Specifically, the question is whether, under the circumstances, Rahim‘s right to be free from deadly force was clearly established.
This question, too, has two parts. The plaintiff must (1) identify either controlling authority or a consensus of persuasive authority sufficient to put the officer on notice that his conduct fell short of the constitutional norm and (2) demonstrate that an objectively reasonable officer would have known that his conduct violated the law. Id. The Supreme Court has repeatedly cautioned courts “not to define clearly established law at a high level of generality,” Mullenix v. Luna, 577 U.S. 7, 16 (2015) (quoting Ashcroft, 563 U.S. at 742), and that “specificity is especially important in the Fourth Amendment context, where the Court has recognized that ‘[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine . . . will apply to the factual situation the officer confronts,‘” id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). So, although a plaintiff need not point to applicable precedent when “the unlawfulness of the officer‘s conduct is sufficiently clear,” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018), “existing precedent
What the law does or does not clearly establish for purposes of assessing qualified immunity is a question of law. See Morse v. Cloutier, 869 F.3d 16, 22 (1st Cir. 2017). But factual issues are an inherent part of the analysis; the Supreme Court has instructed courts that “the dispositive question is ‘whether the violative nature of [the] particular conduct is clearly established,‘” Mullenix, 577 U.S. at 12 (quoting Ashcroft, 563 U.S. at 742) (emphasis original), and that the “inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition,‘” id. (quoting Brosseau, 543 U.S at 198). In a case like this one, where the court has found the facts on summary judgment insufficient to determine exactly what the particular conduct was, let alone whether it violated Rahim‘s constitutional rights, the court cannot fairly rule on the immunity defense. See Tolan v. Cotton, 572 U.S. 650, 657 (2014) (holding that even when “a court decides only the clearly-established prong of the standard,” it “must take care not to define a case‘s ‘context’ in a manner that imports genuinely disputed factual propositions“). Summary judgment is therefore premature. Defendants may renew their motions after Plaintiff has had an adequate opportunity to conduct limited discovery that is narrowly tailored to uncover facts that the court needs to rule on the issue of qualified immunity. See Anderson v. Liberty Lobby Inc., 477 U.S. at 250 n.5 (noting that summary judgment may be refused “where the nonmoving party has not had the opportunity to discover information that is essential to his opposition“).
B. State Law Claims
In addition to the Bivens claims, Plaintiff brings three intentional tort claims—for wrongful death, assault, and battery—against the United States and John Doe 2 and a negligence claim against the United States.
1. Intentional Tort Claims
Under Massachusetts law, a court‘s “determination of the reasonableness of the force used” as to constitutional claims controls the “determination of reasonableness of force used under the common law assault and battery claims.” Raiche v. Pietroski, 623 F.3d 30, 40-41 (1st Cir. 2010). See also LaFrenier v. Kinirey, 478 F. Supp. 2d 126, 143 (D. Mass. 2007) (“Because the Court has already determined that the force used by Defendants was objectively reasonable for excessive force purposes, it concludes that plaintiff‘s assault and battery charge cannot be sustained“); Berube, 506 F.3d at 85 (finding reasonableness analysis on § 1983 claim dispositive for state law civil rights claim). This is also true for a wrongful death claim brought under
The United States and John Doe 213 argue that they should be granted
2. Negligence
The United States asserts that the court lacks jurisdiction over the negligence claim under the FTCA‘s discretionary function exception.
The doctrine of sovereign immunity shields the federal government from suit unless it expressly waives that immunity. See United States v. Mitchell, 445 U.S. 535, 538 (1980). The FTCA,
Plaintiff argues that
In analyzing whether the exception applies, the court first “identif[ies] the particular conduct giving rise to the claims at issue.” Limone v. United States, 579 F.3d 79, 101 (1st Cir. 2009). Next, the court determines whether the federal employee was engaged in conduct that was (1) discretionary and (2) policy-driven. See Mahn v. United States, 742 F.3d 11, 14 (1st Cir. 2012). A discretionary act is one that involves “an element of judgment or choice.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). The exception therefore does not apply if a “federal statute, regulation, or policy specifically prescribes the course of action for an employee to follow.” Id. And where a federal employee has discretion, there is a presumption that actions exercising that discretion are grounded in policy. See Shansky v. United States, 164 F.3d 688, 690 (1st Cir. 1999). “[I]f the challenged conduct is both discretionary and policy-driven,” then the FTCA does not waive sovereign immunity with respect to the employee‘s conduct, and the claim fails. Gordo-Gonzalez v. United States, 873 F.3d 32, 36 (1st Cir. 2017).
Here, Plaintiff‘s negligence claim asserts that Defendants “failed to approach [Rahim] in a safe manner,” that they instead “approached him in public, with weapons drawn,” and that as a result of the “planning” and “operational aspects” of their acts and inactions, foreseeable events occurred, including the assault, battery,
Plaintiff argues that liability is not barred if the officers’ conduct was “unconstitutional, proscribed by statute, or exceeded the scope of the agent‘s authority.” Id. 4, 7-8 (quoting Litif v. United States, 682 F. Supp. 2d 60, 81 (D. Mass. 2010), aff‘d 670 F.3d 39 (1st Cir. 2012), (quoting Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 254 (1st Cir. 2003))). She has made neither arguments nor allegations that the officers’ conduct was proscribed by statute or exceeded the scope of their authority. Plaintiff does allege that the officers had an “affirmative duty . . . to ensure that [Rahim] was protected from an [unconstitutional] seizure,” that they failed to approach Rahim in a safe manner, that this conduct was a material element and proximate cause in bringing about Rahim‘s seizure and death, and that the officers’ actions were not objectively reasonable in light of the circumstances. For the reasons discussed above, the summary judgment record is not sufficient to preclude this claim. And if Plaintiff is able to show that the officers’ conduct violated Rahim‘s constitutional rights and was not objectively reasonable, the negligence claim is not barred by the discretionary function exception. At the same time, if Plaintiff can make such a showing, the negligence claim will be redundant, reaching no other conduct than that found actionable under her Bivens and intentional tort claims.
VI. Conclusion
For the forgoing reasons, the United States’ Motion for Summary Judgment [#38], John Doe 1‘s Motion for Summary Judgment [#40], and John Doe 2‘s Motion for Summary Judgment [#71] are DENIED without prejudice to renewal after limited discovery.
The clerk shall set a scheduling conference. Counsel shall be prepared to discuss the appropriate scope of discovery.
IT IS SO ORDERED.
December 2, 2020
/s/ Indira Talwani
United States District Judge