Civil rights – Lethal force

Where a police confrontation resulted in a fatal shooting, a judgment in favor of the defendant officers should be vacated as to 42 U.S.C. §1983 claims for the use of excessive force in relation to the fatal shooting.

“This appeal arises from a police confrontation that resulted in the fatal shooting of a man in his Newton, Massachusetts apartment building. The incident began when the Newton Police Department (NPD) received a report that Michael Conlon was attempting an armed robbery of a candy store adjacent to his apartment building. It ended approximately thirty minutes later when Conlon, who was suffering a mental-health crisis, was shot dead by two officers on scene.

“Plaintiffs — Conlon’s parents serving as the representatives of their son’s estate — sued the City of Newton and several of its police officers, asserting claims under 42 U.S.C. §1983, Title II of the American with Disabilities Act (ADA), the Rehabilitation Act, and Massachusetts law. The district court dismissed Plaintiffs’ complaint entirely and entered judgment. We vacate the judgment as to Plaintiffs’ section 1983 claims against the police officers’ use of lethal force and remand the matter for further proceedings on that claim. The remainder of the judgment is affirmed. …

“On appeal, Plaintiffs challenge dismissal of their section 1983 claim against the Officer-Defendants based upon two uses of allegedly excessive force against Conlon: (1) the deployment of the beanbag shotgun (i.e., the nearly simultaneous pointing and misfiring of the weapon); and (2) the fatal shooting. …

“We start with whether the district court erred in granting qualified immunity to the asserted claims of excessive force as to Sergeant [Glenn] Chisholm’s deployment of the beanbag shotgun at Captains Dowling and Marzilli’s instruction. We hold that the district court did not err because under the second step of the second prong of the qualified immunity analysis, an objectively reasonable officer would not have known that his conduct violated the clearly established law in the circumstances he faced. …

“We affirm the district court’s grant of qualified immunity because it would not have been clear to a reasonable officer that aiming the usually less-than-lethal beanbag gun at Conlon’s breastbone and attempting to fire it constituted excessive force, or at least not so clear that ‘no competent officer could have thought that [it] was permissible.’ … The officers had reason to think the firing of the beanbag gun would not be lethal. …

“We hold that a reasonable officer would have understood that use of the beanbag gun most likely would de-escalate the situation further. The officer would most likely have concluded that use of the beanbag gun would reduce the need for use of further force and reduce the risk to all in the encounter, both the police officers and Conlon. It would not be objectively foreseeable to a reasonable officer in Sergeant Chisholm’s position, acting pursuant to his superior’s instructions, that the beanbag gun would not function properly, much less that the attempted deployment would lead to Conlon allegedly picking up the knife again. Nothing in the pleadings asserts that the officers should have known either of these points. …

“We consider next whether Plaintiffs have pleaded sufficient facts to overcome qualified immunity for an excessive force claim based on the fatal shots fired by Officers [Richard] Benes and [Francis] Scaltreto. As noted above, the shooting took place after the failed efforts to incapacitate Conlon using the beanbag gun. …

“As we read the complaint, Plaintiff pleads that there are material facts to dispute as to several occurrences in the moments before the fatal shooting. The uncertain ‘nature of the complaint and the record at this early stage of litigation makes vacating the appropriate course.’ … Discovery may reveal that Conlon picked up the knife in the moments preceding his death; it may also reveal that he charged unarmed towards Sergeant Chisholm; or it may even reveal that Conlon did not charge at all. The resolution of the precise sequence of events leading up to Conlon’s death is clearly relevant to determining whether qualified immunity applies. But we cannot resolve the qualified immunity question presently presented without a fuller development of the record. … We accordingly vacate the district court’s dismissal of Plaintiffs’ section 1983 claim against the Officer-Defendants’ use of lethal force to permit the needed discovery. …

“For the reasons described, we vacate the judgment on Plaintiffs’ claims against Officer-Defendants for the use of excessive force in violation of 42 U.S.C. §1983 (Count 1) as it relates to the fatal shooting and remand the matter for further proceedings on that claim. The remainder of the judgment is affirmed. The parties shall bear their own costs.”

Dissenting judge’s comments

Aframe, J., dissenting in part. “I agree with all aspects of the majority opinion save one. I would permit discovery on the plaintiffs’ section 1983 claim based on Sergeant Chisholm’s deployment of the beanbag shotgun against Conlon. …

“In sum, the complaint alleges that the police confronted Conlon, a mentally ill man holding a small kitchen knife, in the hall of a third-floor apartment building where he was surrounded by police and no civilians were present. Based on police negotiations, the situation seemingly de-escalated when Conlon disarmed himself based on police promises that he would not be hurt and that they would arrange to call his father. Having de-escalated the situation, law enforcement’s very next step was for Chisholm to escalate matters by firing a beanbag shotgun at Conlon from close range. If, as the complaint alleges, Chisholm took that step without evidence of further escalation by Conlon or Conlon failing to follow additional officer commands, he, in my view, acted unreasonably under the circumstances and thus violated Conlon’s Fourth Amendment rights. …

“… In my view, Sergeant Chisholm’s deployment of such force in the de-escalated posture he allegedly faced violates clearly established Fourth Amendment law. …

“Excessive force cases are necessarily fact dependent, and everything said here is premised entirely on the well-pleaded allegations in the complaint. If the beanbag shotgun claim proceeded, differences, even subtle ones, between what is alleged and what can be proven could change whether Sergeant Chisholm’s use of force violated the Fourth Amendment and whether such force could be considered a violation of clearly established law. However, at this stage, we must ask ‘whether under the plaintiff[s’] version of the facts a reasonable officer should have known that the degree of force used was plainly excessive.’ Morelli v. Webster, 552 F.3d 12, 25 (1st Cir. 2009). Because I believe that the version of events alleged in the complaint meets that standard, I would allow discovery to proceed on the beanbag shotgun claim.”

Conlon, et al. v. Scaltreto, et al. (Lawyers Weekly No. 01-219-25) (43 pages) (Per curiam) (Aframe, J., dissenting in part) Appealed from a decision by Saylor, J., in the U.S. District Court for the District of Massachusetts. Patrick Driscoll, with whom Janine D. Kutylo, Anthony Buonopane and Boyle Shaughnessy Law were on brief, for the plaintiffs-appellants; Thomas R. Donohue, with whom Leonard H. Kesten, Francesca M. Papia and Brody, Hardoon, Perkins & Kesten were on brief, for the defendants-appellees

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