Begin v. Drouin , 908 F.3d 829 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1451
JASON BEGIN,
Plaintiff, Appellee,
v.
LAURA DROUIN,
Defendant, Appellant,
CITY OF AUGUSTA, MAINE,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John C. Nivison, U.S. Magistrate Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Edward R. Benjamin, Jr., with whom Kasia S. Park and Drummond
Woodsum were on brief, for appellant.
Bradford A. Pattershall, with whom Law Office of Bradford A.
Pattershall, LLC, Matthew D. Bowe, and Law Office of Matthew D.
Bowe were on brief, for appellee.
November 16, 2018
KAYATTA, Circuit Judge. Officer Laura Drouin of the
Augusta, Maine police department shot plaintiff Jason Begin as
Begin was cutting himself with a knife in the waiting area of the
Riverview Psychiatric Center's local office. Begin later sued
Drouin under 42 U.S.C. § 1983, alleging a deprivation of his
constitutional rights. After discovery, Drouin moved for summary
judgment, arguing that she was immune to Begin's damage claims
because a reasonable officer in her position would have thought
that Begin posed an immediate threat to Drouin or to the Riverview
employees who had been meeting with Begin just before he pulled
out his knife. The district court denied her motion, and Drouin
filed this interlocutory appeal. For the following reasons, we
dismiss the appeal to the extent it challenges the district court's
assessment of the factual record under Fed. R. Civ. P. 56, and we
otherwise affirm the denial of summary judgment.
I.
An order denying a motion for summary judgment, not being
a final judgment, usually provides no occasion for an appeal. See
28 U.S.C. § 1291. An exception applies when such an order rejects
a qualified immunity defense tendered in response to a claim of
official malfeasance in violation of section 1983. In that
instance, the state official may secure interlocutory review of a
district court's conclusion that the official must stand trial.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Such review,
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however, has limits. We cannot consider challenges to the district
court's determination of "which facts a party may, or may not, be
able to prove at trial." Johnson v. Jones, 515 U.S. 304, 313
(1995); McKenney v. Mangino, 873 F.3d 75, 81 (1st Cir. 2017). To
the contrary, we "simply take, as given, the facts that the
district court assumed when it denied summary judgment." Johnson,
515 U.S. at 319. And to the extent the district court fails to
expressly articulate a relevant finding of fact, we review the
record "to determine what facts the district court, in the light
most favorable to the nonmoving party, likely assumed." Id.
We therefore begin consideration of this appeal by
describing the events not as they necessarily occurred, but rather
as the district court determined that jurors might reasonably find
them to have occurred, or as otherwise viewed most favorably to
Begin. Id. at 311, 319.
A.
Between 2004 and 2014, Begin resided at a locked
psychiatric hospital, Riverview Psychiatric Center, to which he
had been committed following an acquittal on a felony theft charge
by reason of insanity. In early 2014, he obtained a supervised
release permitting him to live in a group residential program
setting. One year later, questions arose concerning his compliance
with the terms of his community placement. These questions led to
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a meeting between Begin and three members of Riverview's outpatient
treatment team at their office in Augusta, Maine.
Begin's responses and behavior during that meeting
convinced the Riverview team that he needed to be recommitted.
Anticipating that Begin would be upset by this decision, Gregory
Smith, a member of the team, called the Augusta Police Department
to request that an officer be present when they informed Begin and
then to transport him to Riverview's commitment facility. When
Drouin arrived at the office, Smith told her that Begin might
become uncooperative upon learning that he was being recommitted.
Smith also said that Begin had some history of violence, but
provided no further details. Begin is a large man, weighing
roughly 265 pounds. Drouin was armed with her service gun, a
Taser, an expandable baton, and pepper spray.
Meanwhile, Begin was in the office's waiting area just
beginning to receive the news that he would be returned to
Riverview that afternoon. Drouin waited out of sight with several
other Riverview employees in an adjacent hallway that entered
directly into the waiting area. While Drouin could not hear the
whole conversation, she did overhear Begin say that he was not
going back to the hospital, even as he was told that he had no
choice in the matter and that a police officer was there to
transport him. One of the Riverview employees then signaled Drouin
to approach.
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The parties' stipulation and Drouin's own statement of
undisputed facts indicate that when Drouin approached the entrance
to the waiting area she saw two individuals: A mental health
contractor named Philip Hunt, who had transported Begin to the
Riverview office, and Begin. Hunt was initially seated up to six
feet from Begin. A physician's assistant named Russell Kimball
had previously been standing in front of Begin as he told Begin he
was being recommitted, but the record to which the parties direct
us does not show where Kimball was when Drouin reached the waiting
area.
As Drouin approached, Begin stood up. Begin made no
attempt to start forward. Instead, he reached into his pocket
with his right hand; announced, "I should have done this moons
ago"; pulled out a black folding knife; and brought it down hard
on his left arm. He did not say anything to anyone as he slashed
his arm. Hunt, who was the person closest to Begin when he pulled
out the knife, backed out of the way when he saw Drouin
approaching.
About one second after Begin pulled out his knife, Drouin
drew her firearm and yelled "hey, hey, hey" in Begin's direction.
As Begin continued to cut at his arms, Drouin fired three shots,
hitting Begin twice in the chest and once in the left shoulder.
At that point, Drouin estimates that about four to six seconds had
passed since she first saw Begin. She had not given Begin any
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express warnings or commands. Drouin stopped shooting when Begin
fell to the floor. Handcuffing him, she called for an ambulance.
The district court determined for summary judgment
purposes that while some Riverview employees were "in close
proximity" to both Begin and Drouin, no one was "between" Drouin
and Begin when Begin raised the knife. Further, it is accepted
that Drouin herself was as far as twenty feet from Begin when she
fired, and that Begin remained stationary, cutting himself while
making no threats or movements towards anyone.
Just over a year later, Begin sued Drouin and the City
of Augusta in federal district court under 42 U.S.C. § 1983. That
statute authorizes suit against any person who, acting under color
of state law, violates the federal constitutional or statutory
rights of another. Begin's complaint alleged that Drouin violated
his Fourth Amendment right to be free from unreasonable seizures
when she shot him.
The parties agreed to have the case heard by a United
States magistrate judge exercising the jurisdiction of the
district court under 28 U.S.C. § 636(c)(1). After discovery,
Drouin moved for summary judgment based, in part, on her qualified
immunity to federal damage claims arising out of the performance
of her official duties as a public employee. See generally Harlow
v. Fitzgerald, 457 U.S. 800 (1982).
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In a detailed and carefully researched opinion, the
magistrate judge (hereinafter "the district court") denied
Drouin's motion. Reasoned the district court, the law at the time
Drouin shot Begin was clear that under the circumstances she could
not constitutionally shoot Begin unless he posed an immediate
threat to herself or others and only after, if feasible, providing
some kind of warning. The court further found that the evidence,
as it stood on the summary judgment record, would allow a jury to
decide either way on the questions whether Begin posed an immediate
threat and whether a warning was feasible.
II.
A.
The parties agree that Drouin's stated reason for
shooting Begin was to protect herself and the other individuals
present from Begin when he whipped out his knife. The law in this
circuit has long been clear that the "use of deadly force . . . is
reasonable (and, therefore, constitutional) only when 'at a
minimum, a suspect poses an immediate threat to police officers or
civilians.'" McKenney, 873 F.3d at 81 (quoting Jarrett v. Town of
Yarmouth, 331 F.3d 140, 149 (1st Cir. 2003) (per curiam)).
Further, when feasible, a warning must be given first. Id. at 82
(citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); Young v.
City of Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st Cir.
2005)).
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Whether an immediate threat exists is a question of fact
for the jury as long as the evidence is sufficient to support such
a finding. See Tolan v. Cotton, 134 S. Ct. 1861, 1867–68 (2014)
(reversing summary judgment for a police officer because "[a] jury
could well have concluded that a reasonable officer would have
heard Tolan's words not as a threat"). In this case, the district
court determined that the evidence could support a jury finding
"that Plaintiff did not pose an immediate threat to Defendant
Drouin and the others who were present." That determination --
that the evidence was sufficient to support a jury verdict on an
issue of fact -- is not a ruling that we can review on this
interlocutory appeal. Johnson, 515 U.S. at 311.
B.
The conclusion that a jury could find here the absence
of the immediate threat necessary to make a shooting constitutional
does not by itself mean that a jury could also find Drouin liable.
Police officers do not have the luxury of calmly considering the
circumstances they face as if they were jurors or judges.
"[P]olice 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). Drouin therefore cannot be
held liable, even if Begin's rights were in fact violated, unless
the right implicated was "clearly established" and the plaintiff
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can "show that an objectively reasonable officer would have known
that [her] conduct violated the law." Conlogue v. Hamilton, No.
17-2210, 2018 WL 4927553, at *3 (1st Cir. Oct. 11, 2018). In
practice, qualified immunity doctrine "gives government officials
breathing room to make reasonable but mistaken judgments," thereby
guarding "all but the plainly incompetent or those who knowingly
violate the law" from liability. Ashcroft v. al-Kidd, 563 U.S.
731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
What the law does or does not clearly establish for
purposes of assessing a qualified immunity defense is itself a
question of law. See Morse v. Cloutier, 869 F.3d 16, 22 (1st Cir.
2017) ("Generally, a claim that a certain body of facts makes out
a violation of clearly established law is deemed to present a
question of law, and, thus, is reviewable." (citing Camilo-Robles
v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998))). So while we do not
reconsider the facts as found by the district court or as otherwise
viewed favorably to the plaintiff, we do consider afresh, and
without deference to the district court, whether given those facts
it was clear that no objectively reasonable officer would have
believed the use of deadly force was lawful. See McKenney, 873
F.3d at 82.
In determining whether an objectively reasonable police
officer would have thought it lawful to shoot Begin, a crucial
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consideration is the exact number and location of the Riverview
employees relative to Begin at the moment Drouin fired. See id.
Neither party points us to testimony by Begin or the Riverview
employees clearly locating themselves on a diagram of the room,
nor even describing narratively with any precision exactly where
they were at the time of the shooting. Drouin reports seeing only
one person other than Begin in the waiting area as she reached the
entrance, and that was the person who then proceeded to back away
from Begin. The size of the room itself, we are not told. On
appeal, Drouin simply asserts that the others were "within striking
distance of Begin," but that is wishful gloss that claims no
support in the district court's Rule 56 assessment of the
undisputed facts.
The district court did find that there was evidence the
Riverview personnel were in "close proximity" to both Drouin and
Begin, but that no one was "between" Drouin and Begin when Begin
raised the knife, and that no one faced any immediate threat from
Begin. Does this mean only that no one was in the direct line of
fire? Or does it mean that no one was in the room between Begin
and Drouin as she stood with gun drawn facing him standing
stationary in front of his chair? Given the unchallengeable
Rule 56 finding that a jury could find that Begin posed no
immediate threat to anyone but himself, and given the ambiguous
record concerning precisely where each person stood at the moment
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Drouin decided to fire, we have no choice but to assume that Begin
could not have reached out and stabbed anyone first without
advancing as many as twenty feet toward the barrel of Drouin's
raised gun. This reading of the ambiguous record on interlocutory
review provides an unwelcoming backdrop for Drouin's immunity
defense.
Indeed, nowhere in her sixty-one pages of briefing does
Drouin claim that a reasonable officer would have fired were she
twenty feet away from Begin with all of the Riverview employees
aside or behind her, or otherwise similarly removed from Begin,
and Begin offering no hint of an advance. Rather, Drouin
predicates most of her argument upon her preferred, but presently
unacceptable, spin on the record as locating "three people . . .
within striking distance of Begin."
Our review of our own case law suggests why Drouin never
argues that she can prevail even if no one was closer to Begin
than she was. In our 2017 decision in McKenney, we considered the
state of the law as it was clearly established as of April 2014,
approximately nine months before the events at the heart of this
case transpired. 873 F.3d at 78. We determined that "well-settled
precedents" addressed "the lawfulness of using deadly force
against an individual who was suicidal, armed, slow in gait, some
distance away from the officer, and had received no commands or
warnings for several minutes." Id. at 83. The specific assumed
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facts in McKenney placed the plaintiff sixty-nine feet away, armed
with a gun and moving slowly towards an officer positioned behind
a car at the time he was shot. There was clear visibility, six
minutes had passed since the officers had ordered McKenney to drop
his weapon, and no one warned him that he would be shot if he did
not comply. Id. at 79. The officer knew McKenney was suicidal,
and McKenney was not pointing his gun at anyone when the officer
fired. Id. at 78. On such assumed facts, we held that a jury could
hold the officer liable for violating clearly established law.
Of course no two cases are identical. But a case need
not be identical to clearly establish a sufficiently specific
benchmark against which one may conclude that the law also rejects
the use of deadly force in circumstances posing less of an
immediate threat. Id. at 82–83 (quoting al-Kidd, 563 U.S. at 741);
Alfano v. Lynch, 847 F.3d 71, 76 (1st Cir. 2017) ("[T]here is no
requirement of identicality. In arguing for clearly established
law, a plaintiff is not required to identify cases that address
the 'particular factual scenario' that characterizes his case."
(citing Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir. 2015))). We
must assume on the record in this case that Drouin knew that Begin
was intent on harming himself, that he threatened no one else by
word or movement, and that he had not received any warning or order
from Drouin. While Begin was closer to Drouin (twenty feet) than
McKenney was to the officer who shot him (sixty-nine feet), Begin
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had a knife while McKenney had a gun. We think that an objectively
reasonable officer would regard a knife at twenty feet as posing
no greater threat to an armed police officer than does a gun at
sixty-nine feet. Nor do the facts here otherwise render Begin
more threatening than McKenney. So, given that the law at the
time the officer in McKenney fired clearly established that that
shooting was unlawful on the plaintiff's version of the facts,
then the facts here -- as we must assume them to be -- also support
such a finding.
III.
None of the foregoing means that Drouin in fact did
anything wrong. Rather, it simply means that we cannot set aside
on this record the district court's conclusion that the evidence
viewed most favorably to Begin could support a verdict for Begin.
Whether the evidence actually presented at trial continues to
provide that support remains to be seen.
For the foregoing reasons, we dismiss the appeal in part
for want of appellate jurisdiction to the extent Drouin challenges
the district court's assessment of the record, and we otherwise
affirm the district court's denial of summary judgment.
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