Fortunati v. State of Vermont , 503 F. App'x 78 ( 2012 )

11-1732-cv
Fortunati, et al. v. State of Vermont, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of December, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 ROSEMARY S. POOLER,
9 PETER W. HALL,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 ROBERT A. FORTUNATI, administrator of
14 the estate of JOSEPH FORTUNATI; SUSAN
15 FORTUNATI; and MARK FORTUNATI,
16
17 Plaintiffs-Appellants,
18
19 -v.- 11-1732-cv
20
21 STATE OF VERMONT,
22
23 Defendant,
24
25 ANDREW CAMPAGNE; MARC THOMAS; JEREMY
26 HILL; TODD PROTZMAN; ROB SNETSINGER;
27 KARL GARDNER; HUGH O’DONNELL; MIKE
28 DUDLEY; and WALTER GOODELL,
29
30 Defendants-Appellees.
31 - - - - - - - - - - - - - - - - - - - -X
1
1 FOR APPELLANTS: George Spaneas, Lebanon, New
2 Hampshire.
3
4 FOR APPELLEES: David R. Groff, (David Cassetty,
5 on the brief), for William H.
6 Sorrell, Attorney General of
7 Vermont, Montpelier, Vermont.
8
9 Appeal from a judgment of the United States District
10 Court for the District of Vermont (Murtha, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 This is an appeal from the district court’s grant of
17 summary judgment and judgment as a matter of law in favor of
18 defendants on qualified immunity grounds. Robert Fortunati
19 brought suit against members of the Vermont State Police
20 (“VSP”) in his capacity as administrator of his son Joseph
21 Fortunati’s estate under 42 U.S.C. § 1983 alleging that
22 defendants violated Joseph’s Fourth Amendment right to be
23 free from excessive force when they fatally shot Joseph
24 while attempting to take him into custody. Further, Robert,
25 his wife Susan, and their other son Mark brought a claim
26 against members of the VSP under 42 U.S.C. § 1983 for false
27 arrest arising out of an incident that occurred when they
28 went to the scene of Joseph’s death. We assume the parties’
29 familiarity with the underlying facts, the procedural
30 history, and the issues presented for review.
31
32 The district court granted summary judgment in favor of
33 Defendants with respect to all claims arising out of the
34 fatal shooting death of Joseph on the ground of qualified
35 immunity. The Court reviews de novo a decision on a motion
36 for summary judgment. Mario v. P & C Food Markets, Inc.,
37 313 F.3d 758, 763 (2d Cir. 2002). “Qualified immunity
38 protects officials from liability for civil damages as long
39 as ‘their conduct does not violate clearly established
40 statutory or constitutional rights of which a reasonable
41 person would have known.’” Gilles v. Repicky, 511 F.3d 239,
42 243 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S.
43 800, 818 (1982)). To determine whether a defendant is
44 entitled to qualified immunity, courts ask: whether the
2
1 facts shown “make out a violation of a constitutional
2 right,” and “whether the right at issue was ‘clearly
3 established’ at the time of defendant’s alleged misconduct.”
4 Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting
5 Saucier v. Katz, 533 U.S. 194, 201 (2001)). Qualified
6 immunity applies to shield official actions that were
7 “‘objectively legally reasonable in light of the legal rules
8 that were clearly established at the time [they were]
9 taken.’” X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d
10 Cir. 1999) (alterations omitted) (quoting Anderson v.
11 Creighton, 483 U.S. 635, 639 (1987)); see also Taravella v.
12 Town of Wolcott, 599 F.3d 129, 134-35 (2d Cir. 2010).
13
14 1. Plaintiffs contend that there was a genuine dispute
15 as to whether Joseph pulled his gun on the members of the
16 VSP’s Tactical Services Unit (“TSU”) immediately before they
17 opened fire on him. The use of deadly force can be
18 reasonable under the Fourth Amendment “if the suspect
19 threatens the officer with a weapon.” Tennessee v. Garner,
20 471 U.S. 1, 11 (1985). None of the small differences in
21 testimony Plaintiffs cite creates a genuine dispute as to
22 whether Joseph aggressively drew or reached for his gun
23 immediately prior to being fired upon by the TSU team
24 members. Some officers were able only to see Joseph reach
25 for his waist, but small differences in testimony simply do
26 not rise to the level at which a reasonable jury could find
27 the officers’ credibility damaged. The district court was
28 therefore correct to conclude that there was no genuine
29 dispute of material fact as to the credibility of the
30 officers.
31
32 2. Before the fatal shooting, officers Hill and
33 Snetsinger shot beanbag rounds at Joseph. Assuming that a
34 reasonable jury could find that Hill and Snetsinger violated
35 Joseph’s Fourth Amendment right to be free from an unlawful
36 seizure, we conclude that the officers’ actions were
37 “objectively legally reasonable,” X-Men Sec., 196 F.3d at 66
38 (alterations omitted) (quoting Anderson, 483 U.S. at 639),
39 because “‘officers of reasonable competence could disagree
40 on the legality of the action at issue,’” Manganiello v.
41 City of New York, 612 F.3d 149, 165 (2d Cir. 2010) (quoting
42 Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)).
43 Plaintiffs argue that internal VSP policy and the
44 International Association of Chiefs of Police Training Key
3
1 No. 274 (the “Training Key”) precluded the use of force in
2 this situation. The Training Key does not proscribe the use
3 of force against people with mental illness. The VSP use-
4 of-force policy authorizes the use of deadly force when the
5 “subject possesses a weapon, or is attempting to gain access
6 to a weapon under circumstances indicating an intention to
7 use it against the member [who used force] or others.”
8 (Joint Appendix 699.) The Troopers understood Joseph to
9 either be armed or in close proximity to the gun he had
10 brandished hours earlier. The intervening nine hours did
11 not diminish the danger Joseph posed to police and the
12 surrounding community. Thus, the use of non-deadly force by
13 the Troopers who deployed the bean bag ammunition against
14 Joseph meets the objective reasonableness test.
15
16 3. Plaintiffs also challenged the grant of qualified
17 immunity to Defendants Protzman and Goodell, who deployed
18 the TSU team. We conclude that the district court was
19 correct; there was no “clearly established” right in this
20 Circuit to be free from the deployment of a police SWAT
21 team. Appellees argue that the decision to deploy a police
22 SWAT team can itself never amount to a Fourth Amendment
23 violation. We need not decide that question, which this
24 Circuit has not addressed. See Estate of Smith v. Marasco,
25 430 F.3d 140, 149-50 (3d Cir. 2005) (“[A] decision to employ
26 a SWAT-type team can constitute excessive force if it is not
27 objectively reasonable to do so in light of the totality of
28 the circumstances.” (internal quotation marks omitted));
29 Overdorff ex rel. Holland v Harrington, 268 F.3d 1179, 1190
30 (10th Cir. 2001) (“[T]he decision to deploy a SWAT team to
31 execute a warrant must be ‘reasonable.’”). But see Salim v.
32 Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“Officer Proulx’s
33 actions leading up to the shooting are irrelevant to the
34 objective reasonableness of his conduct at the moment he
35 decided to employ deadly force.”); Carter v. Buscher, 973
36 F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is
37 not subject to Fourth Amendment scrutiny.”).
38
39 4. Qualified immunity was also granted with respect to
40 Mark and Susan’s false arrest claim. We assume that Mark
41 and Susan’s detention, which lasted forty-five minutes and
42 involved handcuffs, ripened into an arrest. However, it was
43 “objectively reasonable” for Defendants to believe the
44 detention was lawful. This Court has in the past held that
4
1 officers may use more force than is typically used in a
2 Terry stop without an “arrest” taking place when the
3 officers are confronted with a situation that they know to
4 be dangerous. See United States v. Vargas, 369 F.3d 98, 102
5 (2d Cir. 2004); United States v. Alexander, 907 F.2d 269,
6 272-73 (2d Cir. 1990). The encounter was tense; it took
7 place at a crime scene; and the officers had reason to
8 believe that Robert might be armed. The officers were
9 undoubtedly aware that the Fortunati family would be upset
10 over Joseph’s death, and they could also reasonably protect
11 against disruption of the scene of the shooting and
12 interference with their investigative duties. It was
13 therefore objectively reasonable for Defendants to believe
14 that Susan and Mark’s detention did not rise to the level of
15 an arrest, notwithstanding that they may have been detained
16 for a period of up to forty-five minutes after Robert had
17 been taken into custody.
18
19 5. Although Plaintiffs mention their state law claims
20 in their brief, they have not adequately briefed any state
21 law issue. Plaintiffs have therefore waived any arguments
22 with respect to their state law claimes. See Zhang v.
23 Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).
24
25 While we are fully cognizant of the tragic
26 circumstances giving rise to this case, we find no error in
27 the district court’s rulings on the issues before us. For
28 the foregoing reasons, we hereby AFFIRM the judgment of the
29 district court.
30
31
32 FOR THE COURT:
33 CATHERINE O’HAGAN WOLFE, CLERK
34
5