Estate of Usaamah Abdullah Rahim v. Doe 2 ( 2022 )

United States Court of Appeals
For the First Circuit
Nos. 21-1086, 21-1087
ESTATE OF USAAMAH ABDULLAH RAHIM, by Rahimah Rahim, in her
capacity as Personal Representative of the Estate of Usaamah
Abdullah Rahim,
Plaintiff, Appellee,
v.
JOHN DOE 1; JOHN DOE 2,
Defendants, Appellants,
UNITED STATES,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Barron, Chief Judge,
Lynch and Gelpí, Circuit Judges.
Joseph B. Simons, with whom Sara Attarchi and Simons Law
Office were on brief, for appellee.
Daniel Aguilar, Attorney, Appellate Staff, Civil Division,
with whom Brian M. Boynton, Acting Assistant Attorney General,
Joshua S. Levy, First Assistant United States Attorney, and Mark
B. Stern, Attorney, Appellate Staff, Civil Division, were on brief,
for appellant John Doe 1.
Nicole M. O'Connor, Senior Assistant Corporation Counsel, for
appellant John Doe 2.
October 20, 2022
LYNCH, Circuit Judge. FBI Special Agent John Doe 1 and
Boston Police Department Detective John Doe 2, members of the FBI's
Joint Terrorism Task Force (the "Task Force"), appeal from a
district court's denial of their pre-discovery motions for summary
judgment on qualified immunity grounds. The officers shot and
killed a terrorist suspect on June 2, 2015, in Boston's Roslindale
neighborhood. Plaintiff Rahimah Rahim, the representative of the
decedent's estate (the "Estate"), sued, alleging that the
officers' use of lethal force violated the Fourth Amendment and
asserting various claims under state law.
The district court found that the officers would be
entitled to qualified immunity if it considered only the moment of
the shooting. But it denied summary judgment and authorized
discovery on the theory that the proper focus was not just on the
encounter itself but on the officers' plans and actions in the
lead-up to the encounter. We reverse.
I.
A.
The following facts are not in dispute. In the spring
of 2015, decedent Usaamah Rahim was being investigated by the Task
Force for connections to the Islamic State of Iraq and the Levant
("ISIL"), a foreign terrorist group. Officers Doe 1 and Doe 2
were involved in this investigation.
- 3 -
As part of the investigation, the Task Force conducted
electronic and physical surveillance on Rahim and on David Wright
and Nicholas Rovinski, believed to be Rahim's coconspirators. Cf.
United States v. Wright, 937 F.3d 8, 13, 32-37 (1st Cir. 2019)
(affirming Wright's conviction for conspiracy to commit acts of
terrorism transcending national boundaries in violation of 18
U.S.C. § 2332b(a)(2) and (c)). The Task Force monitored calls
among the three men.
On June 2, 2015, at 5:18 a.m., Task Force officers
(likely not the defendants) intercepted a call between Rahim and
Wright, both located in the Boston area. Rahim told Wright that
he (Rahim) "was losing [his] intention" and thus "must act sooner
than anticipated." He could no longer wait for the "things" that
were "gonna . . . go down" in New York on the Fourth of July.
Instead of traveling to New York, his plans were "local" and
immediate: he would go on "vacation" "right here in Massachusetts."
He planned to "go[] after . . . those boys in blue" because they
were the "easiest target." Rahim had already given his "bi'ah
[allegiance]," and thus this would be more than simply a "vigilante
attack." The attack would be "random" and "might even happen
today." "[I]f not today, then tomorrow . . . ." Rahim expressed
his belief that "Jihad is a way out . . . of this dunayh [worldly
life]" and discussed plans to empty his bank account and prepare
a will.
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Around 6:00 a.m. that morning, Doe 1, Doe 2, and other
Task Force officers gathered in a CVS parking lot near Rahim's
apartment in the Roslindale neighborhood of Boston to conduct a
surveillance shift. Around this time, a Task Force supervisor
notified the surveillance team of Rahim's conversation with Wright
and instructed Doe 2 that Rahim had to be stopped from boarding
any public transportation. Doe 2 was aware that Rahim rode a
public bus from a stop in front of the CVS on Washington Street,
less than a five-minute walk from Rahim's apartment. Doe 2 relayed
the supervisor's order to other members of the surveillance team
and asked them to assemble at Doe 2's vehicle in the CVS parking
lot to develop a plan to prevent Rahim from boarding the bus.
An unidentified officer then asked police dispatch to
"start a few marked cars" to Rahim's neighborhood. The officer
continued: "[W]e need some detectives. We're going to stop a guy
armed with a knife. . . . [W]e have a gentleman, a black male, 6
feet, beard, 240, 20s, going to be coming out now armed with a
knife. The detectives are going to stop him. If we can get a few
marked cars in there to assist." Rahim met that description. As
the backup units headed toward Rahim's neighborhood, the officer
requested that they "be in the area" but "stay back" and turn off
their lights and sirens. He then requested that the backup units
stay just short of the Burger King and keep an
eye in [sic] the bus stop that's right in front
of the CVS sign. If our subject is making his
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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.
Shortly after 7:00 a.m., the surveillance team watched
Rahim leave his apartment and walk toward the nearby bus stop on
Washington Street. As Rahim walked toward the bus stop, he placed
a call on his cell phone, speaking first with his brother, Muhammad
Rahim, and then with his father, Abdulla Rahim. Rahim told his
brother: "Unfortunately, you will not be seeing me again." The
record does not reveal whether the officers planning to intercept
Rahim were aware of the contents of this conversation. As Rahim
approached the bus stop, still on the phone, he was approached by
Doe 1, Doe 2, and other members of the surveillance team. The
record is unclear as to whether the officers identified themselves
and whether they approached with their weapons already drawn.1
1 The Estate presents an unsupported argument, contrary to
the witness statements it presented in opposition to summary
judgment, that the officers approached Rahim with guns drawn and
did not identify themselves, a position the district court adopted
on the basis that the officers were in plainclothes and Rahim's
initial response was "Do I know you?"
The Estate's own evidence is that several civilian
witnesses understood the officers to be law enforcement officials.
One of these witnesses also stated that the officers did not draw
their weapons until after they commanded Rahim to put his hands
up. The Estate's argument is not supported by the record.
Further, even if the argument had any record support, which it
does not, the officers would still be entitled to immunity.
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Rahim's cell phone captured audio of the ensuing
confrontation2:
Officer: "Put your hands up please."
Rahim: "Do I know you?"
Officer: "Put your hands up!"
Officer: "Put your hands up [unintelligible]."
Officer: "Drop it! Drop it right now!"
Rahim: "Why don't you drop yours?"
Officer: "Drop it!"
Rahim: "Why don't you drop yours?"
Officer: "Drop it!"
Rahim: "Why don't you drop yours?"
Officer: "Drop it!"
Rahim: "Why don't you drop yours?"
Officer: "Drop it!"
Rahim: "Drop yours!"
Officer: "Drop it!"
Rahim: "Drop yours!"
Officer: [Unintelligible]
Rahim: "Drop yours!"
Rahim: "Drop yours!"
Officer: [Unintelligible]
2 The Estate does not contest that Rahim's phone
accurately captured audio of the encounter.
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Officer: [Unintelligible]
Rahim: "[Unintelligible] over here. Come on!
Won't you shoot me?"
[Shots]
Throughout this exchange, Rahim advanced on the officers
and the officers retreated to maintain distance. Civilian
witnesses described Rahim as "not look[ing] like he was going to
stop" and at least one of the officers as appearing fearful. The
officers retreated backward across much of the CVS parking lot
until they were up against a curb at the edge of the lot. Rahim
kept advancing and came within twenty-five feet of the officers.
Just seconds before the shooting, Rahim had refused to put his
hands up, had refused to drop what was in his hand, had taunted
the officers telling them to drop what was in their hands, and had
taunted them more with his "Come on!" statement. An objective
officer would conclude Rahim had chosen to escalate the situation
and that Rahim was an increasing threat. And Rahim's actions were
consistent with his words: he kept advancing on the officers,
despite their attempts by retreating to not let him close the
distance. When he had come close enough to them to be a lethal
threat to the officers and others, they had split-second decisions
to make about what was needed to stop him. And two officers almost
simultaneously reached the same decision. Doe 1 fired twice and
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Doe 2 fired once. Rahim was hit. The entire encounter unfolded
over about thirty seconds.
After Rahim went down, the officers removed something
from his hand and tossed it away from him. One of the officers
stood guard over this object while the others performed first aid
on Rahim.
The Boston Police Department later processed an Ontario
Knife Company Model SP6 Fighting Knife -- thirteen inches long
with an eight-inch blade -- submitted for a post-incident
criminalistics report. The EMTs who responded to the scene also
found a knife sheath in their ambulance after delivering Rahim to
the hospital. The sheath, from which no latent prints were
recovered, appeared to be for a blade that was at least six inches
long. Rahim had been the only patient in the ambulance.
B.
The Estate sued Doe 1, Doe 2, and the United States on
May 31, 2018, alleging that the officers' actions violated Rahim's
Fourth Amendment rights under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and asserting
state law negligence, wrongful death, assault, and battery claims.3
The Estate's operative complaint does not allege that Rahim was
3 Although Doe 2 was a Boston Police Department Detective
at the time of the events at issue, he was working as a member of
a federal task force. The parties and the district court thus
treated Bivens as the applicable framework.
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unarmed during the encounter. The complaint refers to the
officers' belief that Rahim was armed and planned to carry out a
terrorist attack:
• "Despite [the Task Force's] belief that Mr. Rahim planned
to kill someone and had bought three (3) large knives to
use in an alleged planned killing, there were no criminal
charges or warrants against Mr. Rahim."
• "At the time of [an alleged] meeting, the FBI and members
of the [Task Force] were already under the impression and
belief that the (3) individuals were conspiring to commit
an act of terror, on one or more individuals, and providing
material support and resources, and/or personnel services
to a foreign terrorist organization, namely ISIL."
• "Investigators allegedly believed that in preparation for
an attack, Mr. Rahim had purchased three (3) military-style
knives. . . . The [Task Force] allegedly believed that
the knives were going to be used to kill a particular
person."
• "According to the Suffolk County District Attorney's
Report, the [Task Force] believed that Mr. Rahim would be
armed with a knife when he left home again."
• "The Suffolk County District Attorney's Report alleges that
Mr. Rahim was holding a military style knife."
- 10 -
The government moved for summary judgment before
discovery on the grounds that Doe 1 and Doe 2 were entitled to
qualified immunity.4 In support of these motions, the government
offered sworn statements from Doe 1, Doe 2, and three other Task
Force officers present at the shooting. These sworn statements
were taken several days after the incident pursuant to FBI
procedures.
In the sworn statements, officers Doe 1 and Doe 2 stated
the following relevant facts. Both officers were working as
members of the Task Force. They had been involved in prior
surveillance of Rahim and were aware that he had acquired knives.5
Both officers arrived at the CVS around 6:00 a.m. on June 2, 2015,
to conduct a surveillance shift on Rahim. When Doe 2 spoke to a
Task Force supervisor around this time, the supervisor told him
that Rahim intended to attack law enforcement that day and must be
4 Doe 2 initially filed a motion to dismiss. The district
court denied this motion without prejudice to Doe 2's ability to
advance the same legal arguments in a motion for summary judgment,
which Doe 2 subsequently filed. The United States, substituted as
a defendant for Doe 1 as to the state law claims, also moved for
summary judgment as to these claims.
5 The Task Force had information that Rahim and his
coconspirators planned to behead an American citizen in New York
at the behest of an ISIL militant. The Task Force learned that
Rahim ordered three large knives over the internet and that these
knives were delivered to his home. The FBI intercepted and x-
rayed one of the deliveries to confirm that it contained a knife.
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prevented from boarding public transportation. Doe 2 requested
backup but wanted to ensure that uniformed officers stayed back
from the immediate area given Rahim's intentions to harm law
enforcement.
As to the confrontation itself, officers Doe 1 and Doe
2 stated that, when approached, Rahim drew a large knife and
wielded it in an aggressive manner while advancing on the officers.
They asserted that Rahim was continuously non-compliant with
commands to drop the knife, that his facial expression evinced an
intent to do harm, that he was within the twenty-one-foot danger
zone within which an assailant armed with a knife can strike before
officers have time to react, and that they believed Rahim to pose
an immediate deadly threat to themselves and others. In
particular, Doe 2 feared that, as one of the other officers
retreated toward the curb, she might trip backward and become
particularly vulnerable to a knife attack. The three other Task
Force members gave essentially the same account.
In addition to these sworn statements, the government
offered a report prepared by the Suffolk County District Attorney
(the "D.A. Report") concluding that the officers acted "reasonably
and lawfully,"6 a recording and transcript of Rahim's phone call
6 We note that this is the unusual case where the facts
have been previously examined in two government investigations (an
FBI investigation and the D.A. Report), both of which considered
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with Wright, a recording and transcript of Rahim's phone call to
his brother, a photograph of a knife recovered from the scene, and
security-camera video of the incident. The video shows Rahim
advancing on the officers but is too blurry to identify what was
in Rahim's hands.
In opposition to the government's motions for summary
judgment, the Estate did not rely solely on its amended complaint.
Rather, it submitted its own set of documents for consideration.7
Chief among these were transcripts of five witness interviews
conducted by law enforcement in the days following the incident.
Four of these witnesses were civilians; one was an off-duty police
officer. The government states that it is not aware of any
additional witnesses.
The witness interview transcripts submitted by the
Estate in opposition to summary judgment stated the following.
Witness A is a ten-year-old child who was sleeping, heard gunshots,
and looked out the window and saw someone lying on the ground.
Witness B is an office worker in the area who saw police approach
Rahim and command him to put his hands up before drawing their
weapons. Witness B saw Rahim advance on the officers and saw the
sworn testimony among other evidence. The D.A. Report was made
available to the Estate before the Estate filed its complaint.
7 These materials had either been voluntarily provided to
the Estate or acquired through separate litigation under a state
freedom of information act.
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officers back away for around seventy feet until they were at the
edge of the parking lot. Witness B does not have good eyesight
and did not see if Rahim had something in his hands. Witness B
saw the officers toss something to the side after Rahim went down
and saw an officer standing over this object. Witness C is a
worker at a nearby labor yard who was walking into a Dunkin' near
the CVS. Witness C heard a shot and saw an officer backing away
and looking fearful but did not see who the officer fired at before
Witness C took cover. Witness C later saw Rahim on the ground and
did not see anything in his hands. Witness D is a local office
worker who saw Rahim advance on the officers across the parking
lot but could not see Rahim's hands. Witness D saw the officers
throw something to the side after Rahim went down and stand over
this object. Witness E is an off-duty police officer who was
sitting in traffic on Washington Street. Witness E saw a group of
individuals in the CVS parking lot but could not see specific
movements or Rahim's hands.
In addition to transcripts of these witness interviews,
the Estate also offered a transcript of the call to police dispatch
(described supra) and various documents relating to the recovered
knife and knife sheath, one of which stated that latent prints
were not found on the sheath.
Finally, the Estate submitted an affidavit pursuant to
Federal Rule of Civil Procedure 56(d) asserting that summary
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judgment was premature because it had not yet had an opportunity
to depose the officers, witnesses, and Task Force supervisors and
because it did not have access to FBI use-of-force policies,
unredacted versions of the witness transcripts and dispatch call,
or forensic analysis of the knife recovered at the scene.
The district court heard argument on the summary
judgment motions on May 4, 2020. The court concluded that the
Estate had likely not demonstrated a genuine issue of material
fact because, inter alia, the witness statements relied on by the
Estate did not contradict the officers' sworn statements. The
court also expressed skepticism that the Estate had made a case
for discovery under Rule 56(d). But the court sua sponte granted
the Estate a "second go-round" on the Rule 56(d) affidavit,
ordering the Estate to be "very, very clear" as to the specific
pieces of evidence that could overcome the qualified immunity
defense.
On May 22, 2020, the Estate submitted its supplemental
Rule 56(d) affidavit. The only new assertion offered in this
affidavit was that the Estate should have the opportunity to depose
the civilian witnesses to confirm "whether those witnesses
observed Mr. Rahim to have a knife."
The government responded that this supplemental
affidavit fell well short of the standard for granting relief under
Rule 56(d). The government pointed out that, because the civilian
- 15 -
witnesses' statements did not contradict the officers' sworn
statements, the Estate's request for discovery relied on
speculation that the civilian witnesses would disavow their prior
statements.
On December 2, 2020, the district court denied the
summary judgment motions without prejudice to renewal after
limited discovery. Est. of Rahim v. United States, 506 F. Supp.
3d 104, 122 (D. Mass. 2020). The court began by excluding the
sworn statements of Doe 1, Doe 2, and the other three Task Force
officers from consideration, reasoning that these statements were
inadmissible at summary judgment because the officers had not been
deposed. Id. at 113-14. The court also excluded the D.A. Report.
Id. at 112-13. Even so, the court found that the officers would
be entitled to summary judgment "[i]f [it] were to consider only
the moment of the shooting." Id. at 118.
But the court denied summary judgment and authorized
discovery on the theory that the proper focus was not just on the
encounter itself but on the information possessed by the officers
and their "plans, actions, observations, and means available to
respond" in the lead-up to the encounter. Id. The court also
found that it could not "fairly rule" on the qualified immunity
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defense because the facts were "insufficient to determine exactly
what the particular conduct was." Id. at 120.8
Doe 1 and Doe 2 filed interlocutory appeals from the
district court's denial of qualified immunity.
II.
We review a district court's denial of summary judgment
on qualified immunity grounds de novo, Conlogue v. Hamilton, 906
F.3d 150, 154 (1st Cir. 2018), viewing the facts in the light most
favorable to the nonmoving party, id. at 152.9
"The doctrine of qualified immunity shields officers
from civil liability so long as their conduct 'does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.'" City of Tahlequah v. Bond,
142 S. Ct. 9, 11 (2021) (per curiam) (quoting Pearson v. Callahan,
555 U.S. 223, 231 (2009)). It protects "all but the plainly
incompetent or those who knowingly violate the law." Id. (quoting
District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). Under
8 The district court also found that the defendants were
not entitled to summary judgment on the Estate's state law claims.
See id. at 120-22. That aspect of the ruling is not at issue.
9 No party contests the existence of appellate
jurisdiction, and correctly so. There is no dispute of material
fact as to whether the officers are entitled to immunity, as
explained above. See Valdizán v. Rivera-Hernandez, 445 F.3d 63,
65 (1st Cir. 2006) ("[W]e remain free to examine, on an
interlocutory appeal, whether [a] fact makes any cognizable legal
difference.").
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the familiar two-prong framework, courts ask (1) whether the
defendant violated the plaintiff's constitutional rights and (2)
whether the right at issue was "clearly established" at the time
of the alleged violation. Conlogue, 906 F.3d at 155. The prongs
need not be addressed in order, and an officer may be entitled to
immunity based on either prong. Id.
The "clearly established" prong itself comprises two
inquiries. Id. The plaintiff must "identify either controlling
authority or a consensus of persuasive authority sufficient to put
an officer on notice that his conduct fell short of the
constitutional norm." Id. The plaintiff must also "show that an
objectively reasonable officer would have known that his conduct
violated the law." Id. This latter requirement provides
"breathing room" to officers -- who are often called on to respond
to dangerous, rapidly evolving situations -- by affording them
immunity even when they make reasonable mistakes about the
lawfulness of their conduct. Id. The plaintiff's burden to
demonstrate that the law was clearly established is thus "a heavy
burden indeed." Lachance v. Town of Charlton, 990 F.3d 14, 20
(1st Cir. 2021) (quoting Mitchell v. Miller, 790 F.3d 73, 77 (1st
Cir. 2015)).
We hold that the officers are entitled to qualified
immunity under each aspect of the "clearly established" prong of
the defense. First, we hold that the officers are entitled to
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qualified immunity because the Estate has not identified any
authority that would put the officers on notice that their actions
were unlawful. Second, we hold independently that the officers
are entitled to qualified immunity because an objectively
reasonable officer facing the same fraught situation as Doe 1 and
Doe 2 would not have known that the challenged conduct violated
the law. And the officers are entitled to qualified immunity
whether the focus is on the thirty-second fatal encounter or the
fatal encounter plus the officers' actions in the hour beforehand.
A.
The district court found that consideration of the
"clearly established" prong of the qualified immunity defense was
premature before discovery. See Est. of Rahim, 506 F. Supp. 3d at
120. We deem this inconsistent with the Supreme Court's command
to "resolv[e] immunity questions at the earliest possible stage in
litigation." Pearson, 555 U.S. at 232 (quoting Hunter v. Bryant,
502 U.S. 224, 227 (1991) (per curiam)). Indeed, "the 'driving
force' behind creation of the qualified immunity doctrine was a
desire to ensure that '"insubstantial claims" against government
officials [will] be resolved prior to discovery.'" Id. at 231(alteration in original) (quoting Anderson v. Creighton, 483 U.S.
635, 640 n.2 (1987)). Even where certain facts are disputed,
courts must assess whether a plaintiff's allegations -- or here,
the Estate's allegations as modified by the current undisputed
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evidence in the summary judgment record -- make out a claim
sufficient to overcome qualified immunity before denying a motion
for summary judgment and authorizing discovery. See Anderson, 483
U.S. at 646 n.6.
The district court correctly found, contrary to the
argument presented by the dissent,10 that if it "were to consider
only the moment of the shooting, [the officers] would be correct
that they have met their burden for [the Estate] to respond and
10 The dissent cites Estate of Todashev v. United States,
815 F. App'x 446 (11th Cir. 2020) (per curiam), an unpublished,
out-of-circuit case not relied on by the Estate where the court
remanded for additional discovery prior to summary judgment. See
id. at 455. The officers could not have had notice of Todashev,
as that case was decided five years after the events at issue.
Todashev, on its facts, is also plainly distinguishable and would
not support discovery here. In Todashev, the existing record
evidence was inconsistent and the fact that Todashev was shot
multiple times in the back suggested that he may have been fleeing
rather than advancing on the officers. See id. at 448. The
Todashev plaintiff sought discovery not on a speculative,
unsupported theory of the encounter but on a request for reports
and expert testimony to buttress the conclusion that Todashev was
attempting to flee from the officers. See id. at 451-55. Here,
in contrast, the Estate's theory that Rahim may have been unarmed
lacks a basis in the record.
Harbert International, Inc. v. James, 157 F.3d 1271(11th Cir. 1998), cited by the Todashev court, is instructive.
There, the Eleventh Circuit found that a district court did not
abuse its discretion in denying additional discovery in a qualified
immunity case where, based on the evidence before the court
including affidavits from the defendants, it was unlikely that
further discovery would establish that the defendants violated
clearly established law. Id. at 1280-81. Harbert supports our
conclusion here that additional discovery would not change the
outcome of the summary judgment analysis.
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that no new evidence would likely change the outcome." Est. of
Rahim, 506 F. Supp. 3d at 118.11
11 This finding by the district court is consistent with
the requirements of Rule 56(d), and that should have ended the
matter. "Rule 56(d) does not condone a fishing expedition where
a plaintiff merely hopes to uncover some possible evidence of
unlawful conduct." Johnson v. Moody, 903 F.3d 766, 772 (8th Cir.
2018) (quoting Toben v. Bridgestone Retail Operations, LLC, 751
F.3d 888, 895 (8th Cir. 2014)); see also Vargas-Ruiz v. Golden
Arch Dev., Inc., 368 F.3d 1, 4 (1st Cir. 2004) ("[A plaintiff]
must offer the trial court more than optimistic surmise."). To
obtain additional discovery, a party must show, inter alia, "a
plausible basis for believing that the specified facts probably
exist." Pina v. Childs.' Place, 740 F.3d 785, 794 (1st Cir. 2014);
see also Rivera-Torres v. Rey-Hernández, 502 F.3d 7, 12 (1st Cir.
2007) (finding that this requirement was not satisfied); Doe v.
Brown Univ., 943 F.3d 61, 71 (1st Cir. 2019) (similar). And in
qualified immunity cases, the Rule 56(d) analysis is conducted
"with a thumb on the side of the scale weighing against discovery."
Harbert, 157 F.3d at 1280; see also Garner v. City of Ozark, 587
F. App'x 515, 518 (11th Cir. 2014) (per curiam) (applying this
principle and finding that further discovery was not warranted);
Olaniyi v. District of Columbia, 763 F. Supp. 2d 70, 101 n.26
(D.D.C. 2011) (same).
The officers' five sworn statements are detailed,
consistent, and uniformly state that Rahim had a large knife in
his hand as he advanced on the officers. The officers described
this knife as "15 to 18 inches," a "large . . . military knife,"
"a dagger looking knife, with a large, straight blade,"
"approximately 2 feet long," and "a large black knife similar to
a Bowie knife." And undisputed record evidence establishes that
Rahim advanced on the officers and they retreated, that he refused
to drop what he was holding despite repeated commands, that he
taunted the officers to drop their weapons instead, and that the
officers immediately secured the object Rahim had in his hands
once he went down. On this record, it is not plausible that any
of the officers will probably testify in a deposition that Rahim
was unarmed.
And in any event, the focus required by law must be on
what an objective officer would have perceived leading up to and
in the split-second decision to shoot.
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We also note that the sworn statements submitted by the
officers in support of their motions for summary judgment should
have been admitted. The Estate never argued that the statements
were inadmissible. To the contrary, the Estate accepted as
undisputed many facts based on these statements and even cited the
statements in support of its opposition to summary judgment. The
motions hearing colloquy reflects an understanding -- shared by
both parties and by the court -- that the statements were
admissible. And while the Estate sought to depose the officers,
this was a request for discovery, not a challenge to the
admissibility of the statements already in the record.
Nor do the Federal Rules of Civil Procedure condition
the admissibility of sworn statements at summary judgment on a
prior deposition. To be admissible at summary judgment, an
affidavit or declaration "must be 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." Fed. R. Civ. P. 56(c)(4) (emphasis added); see also id.
56(c)(2) ("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." (emphasis added)). "[T]he standard is
not whether the evidence at the summary judgment stage would be
admissible at trial -- it is whether it could be presented at trial
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in an admissible form." Gannon Int'l, Ltd. v. Blocker, 684 F.3d
785, 793 (8th Cir. 2012).
However, the government does not rely on these
statements in its appeal, and so we do not consider them. Our
holding does not rest on the exclusion of the statements but rather
on the merits of the district court's denial of qualified immunity.
The officers are entitled to qualified immunity on the
current record for the reasons we now discuss.
B.
We hold first that the Estate has failed to meet its
burden to identify controlling authority or a consensus of
persuasive authority sufficient to put the officers on notice that
their conduct violated the law. See Conlogue, 906 F.3d at 155;
see also Rivera-Corraliza v. Morales, 794 F.3d 208, 214-15 (1st
Cir. 2015) (noting that plaintiffs' failure to identify such
authority is fatal to their claims); MacDonald v. Town of Eastham,
745 F.3d 8, 14-15 (1st Cir. 2014) (finding officers entitled to
qualified immunity based on this element of the defense). While
a case "directly on point" is not required, "existing precedent
must have placed the statutory or constitutional question beyond
debate." Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per
curiam) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per
curiam)). And "specificity is 'especially important in the Fourth
Amendment context,' where it is 'sometimes difficult for an officer
- 23 -
to determine how the relevant legal doctrine, here excessive force,
will apply to the factual situation the officer confronts.'" Bond,
142 S. Ct. at 11-12 (quoting Mullenix v. Luna, 577 U.S. 7, 12
(2015) (per curiam)).
The Estate has not come close to meeting its burden of
identifying controlling authority or a consensus of persuasive
authority. The Estate did not advance any argument on this point,
much less identify sufficiently analogous precedents. It did not
do so despite the fact that the government pointed out this absence
of argument both in the district court and in its opening briefs.
The fact that the Estate cited -- in the district court,
not in its appellate briefing -- to a single, twenty-one-year-old,
out-of-circuit case does not satisfy its burden for a number of
reasons beyond the obvious reason of waiver by the Estate. That
case, Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001), is
insufficient as a matter of law to meet the Estate's burden: it is
neither controlling authority nor a "consensus" of persuasive
authority. Conlogue, 906 F.3d at 155. Deorle is also inapposite
because it has been superseded by the many later Supreme Court and
circuit precedents we discuss below.
In any event, Deorle is plainly distinguishable. It
involved an unarmed, mentally disturbed man on his own property
who had "complied with the police officers' instructions," had not
received warnings prior to the use of force, and "had discarded
- 24 -
his potential weapons whenever asked to do so." Deorle, 272 F.3d
at 1285; see also id. at 1278. And the Supreme Court has twice
rejected the broad reading of Deorle favored by the dissent. See
Kisela, 138 S. Ct. at 1154 ("This Court has already instructed the
Court of Appeals not to read its decision in [Deorle] too broadly
in deciding whether a new set of facts is governed by clearly
established law."); City & Cnty. of S.F. v. Sheehan, 575 U.S. 600,
614 (2015) (finding that the differences from Deorle "leap[t] from
the page" because, inter alia, Sheehan was "dangerous" and
"recalcitrant" while Deorle was not).
C.
We hold independently that the officers are entitled to
qualified immunity because objectively reasonable officers in
their position would not have understood their actions to violate
the law. See Conlogue, 906 F.3d at 155; see also, e.g., Justiniano
v. Walker, 986 F.3d 11, 28-29 (1st Cir. 2021) (finding officer
entitled to qualified immunity on this basis); Mlodzinski v. Lewis,
648 F.3d 24, 37 (1st Cir. 2011) (same); Wilson v. City of Boston,
421 F.3d 45, 57-59 (1st Cir. 2005) (same). We hold further that
a reasonable officer in this situation would have understood Rahim
to have a lethal knife in his hands. We also hold that a reasonable
officer, on the undisputed facts, would have understood Rahim's
actions to show that he had every intention to use this knife to
- 25 -
kill the officers and, if they were unsuccessful in stopping him,
to kill other people.
In the case law concerning the reasonableness of
officers' use of force, the following factors among others have
been thought to be relevant. Each is present here.
• Whether a reasonable officer on the scene could believe
that the suspect "pose[d] an immediate threat to police
officers or civilians." Fagre v. Parks, 985 F.3d 16, 23-
24 (1st Cir. 2021) (quoting Conlogue, 906 F.3d at 156);
see also Kisela, 138 S. Ct. at 1152. Here, an objectively
reasonable officer would have such a belief based on both
his or her knowledge going into the encounter that Rahim
was armed and planned to carry out an imminent attack12 and
12 The Estate conceded this point. At the motions hearing,
counsel for the Estate argued:
At what point did [the officers] believe there
was an imminent threat? Was it at the point
they approached him? Was it at the point all
morning long? Was that already a preconceived
notion in the officers' heads when they
stopped him and immediately drew their
weapons? I understand certainly them being
able to draw their weapons and the discretion
they have in how they would have conducted the
stop. But immediately going to pull the
weapons and him having a knife and the
officers being aware, frankly, that he had a
knife, was it reasonable for the officers to
perceive this as an imminent threat when for
a period of two hours nothing was done during
that time and essentially approaching him at
- 26 -
on Rahim's aggressive and escalatory actions during the
encounter itself.
• Whether a warning was given before the use of force and
whether the suspect complied with this command. See, e.g.,
Kisela, 138 S. Ct. at 1153-54; Escalera-Salgado v. United
States, 911 F.3d 38, 41 (1st Cir. 2018); Conlogue, 906 F.3d
at 156-57; McKenney v. Mangino, 873 F.3d 75, 82 (1st Cir.
2017). Here, the officers gave at least nine total
commands for Rahim to put his hands up and/or to drop what
he was holding. Rahim did not comply.
• Whether the suspect was armed -- with a gun, knife, or
otherwise -- at the time of the encounter or whether the
officers believed the suspect to be armed. See, e.g.,
Kisela, 138 S. Ct. at 1154; Sheehan, 575 U.S. at 612;
that time and saying, [w]ell, there was a
knife, and immediately that there's an
imminent threat?
(Emphasis added.) The Estate advanced a similar theory in its
district court briefing. As such, the Estate is now estopped from
taking a contrary position. See Beddall v. State St. Bank & Tr.
Co., 137 F.3d 12, 23 (1st Cir. 1998) ("We generally will not permit
litigants to assert contradictory positions at different stages
of a lawsuit in order to advance their interests.").
The Estate also conceded this point by failing to
meaningfully respond to the government's argument that the
statements in the Estate's complaint represent admissions that the
officers reasonably believed Rahim to be armed. See Thompson v.
Barr, 959 F.3d 476, 490 n.11 (1st Cir. 2020) (finding that an
appellee's failure to address conspicuous, nonfrivolous arguments
in an appellant's opening brief can constitute waiver).
- 27 -
Fagre, 985 F.3d at 24; Escalera-Salgado, 911 F.3d at 41;
Conlogue, 906 F.3d at 156. Here, the officers believed
that Rahim was armed with a knife in his hands at the time
of the encounter. They repeatedly commanded him to drop
what he was holding. Rather than contest that he was
holding a weapon, Rahim responded by taunting the officers
to drop their weapons instead.
• The speed with which officers had to respond to unfolding
events, both in terms of the overall confrontation and the
decision to employ force. See, e.g., Kisela, 138 S. Ct.
at 1153-54; Sheehan, 575 U.S. at 612; Graham v. Connor,
490 U.S. 386, 396-97 (1989); Conlogue, 906 F.3d at 158;
McKenney, 873 F.3d at 79-80. Here, the entire encounter
unfolded over about thirty seconds and the officers'
decision to shoot had to be made within seconds when,
despite their commands to drop what was in his hands, Rahim
kept advancing with what they had every reason to believe
was a weapon.
• Whether the suspect was advancing on the officers or
otherwise escalating the situation. See, e.g., Sheehan,
575 U.S. at 612-13; Conlogue, 906 F.3d at 156. Rahim was
doing both. He advanced on the officers while taunting
them (at least eight times) to drop their weapons.
- 28 -
• The suspect's physical proximity to the officers at the
time of the use of force. See, e.g., Kisela, 138 S. Ct.
at 1154; Sheehan, 575 U.S. at 613; McKenney, 873 F.3d at
82. Rahim was within range to seriously injure the
officers at the time they fired.
• Whether multiple officers simultaneously reached the
conclusion that a use of force was required. See Conlogue,
906 F.3d at 156. Doe 1 and Doe 2 did so here.
• The nature of the underlying crime. See Rivas-Villegas v.
Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam) (citing
Graham, 490 U.S. at 396). Here, Rahim had stated his
intention to kill someone that day or the next, and the
officers had every reason to believe that a lethal
terrorist attack was imminent.
Each one of these considerations supports the grant of
qualified immunity here on the undisputed facts. An objectively
reasonable officer would have understood that Rahim posed a lethal
threat to them. They would also have understood that Rahim had to
be apprehended and stopped before he could commit a "random" act
of violence at the bus stop, on the bus, or later in the day.
The Supreme Court has repeatedly found that officers
acting under such circumstances do not violate clearly established
law. Two of the Court's recent grants of qualified immunity are
illustrative. In City of Tahlequah v. Bond, officers shot and
- 29 -
killed a suspect who refused repeated commands to drop a hammer
and whose movements suggested that he was preparing to throw the
hammer or charge at the officers. 142 S. Ct. at 10-11. The Court
found that under such circumstances the officers "plainly did not
violate any clearly established law" and thus were entitled to
qualified immunity. Id. at 11; see also id. at 12. And in Kisela
v. Hughes, officers shot a knife-armed woman who had been seen
acting erratically, had approached a civilian, and who refused
repeated commands to drop the knife over the course of an encounter
lasting less than a minute. 138 S. Ct. at 1151. The Court found
that this was "far from an obvious case in which any competent
officer would have known that shooting [the suspect] to protect
[the civilian] would violate the Fourth Amendment." Id. at 1153;
see also, e.g., Sheehan, 575 U.S. at 612-13 (finding that officers'
use of force against a knife-armed individual who "kept coming" at
them was reasonable).
Precedents from our circuit and others similarly
recognize that officers are entitled to qualified immunity under
such circumstances. In Escalera-Salgado v. United States, for
example, officers executed a search warrant at the residence of a
known drug trafficker and gang leader in Puerto Rico. 911 F.3d at
- 30 -
39.13 They believed the suspect had guns in the house. Id. As
the suspect emerged from the bedroom, an officer yelled "police"
and commanded him to show his hands and stay still. Id. The
suspect ignored these commands and reached for his waistband, at
which point two officers fired. Id. We held that these officers
were entitled to qualified immunity on the "clearly established"
prong of the defense because the suspect "failed to compare his
shooting to the facts of a single case in which an officer's use
of force was held to be constitutionally excessive" and the
officers' conduct was not "self-evidently unlawful." Id. at 41.
We found that, despite not actually seeing a weapon, the officers
had "ample reason to suspect danger" based on, inter alia, their
belief that the suspect was armed, the suspect's failure to comply
with police commands, and the suspect's behavior suggesting that
he was reaching for a weapon. Id. at 41-42.
In Conlogue v. Hamilton, we considered a claim arising
out of an officer's use of deadly force at the climax of a three-
13We note that Escalera-Salgado arose in the context of
the Federal Tort Claims Act (FTCA) in Puerto Rico rather than as
a Bivens claim. 911 F.3d at 40. The court in that case, however,
clarified the connection between the FTCA in Puerto Rico and Bivens
claims, stating: "The district court's qualified immunity analysis
relied upon our circuit's oft-repeated assumption 'that Puerto
Rico tort law would not impose personal liability' in tort actions
'where the officers would be protected in Bivens claims by
qualified immunity.'" Id. (quoting Solis-Alarcón v. United
States, 662 F.3d 577, 583 (1st Cir. 2011)). Therefore, its
reasoning is applicable here.
- 31 -
and-a-half-hour standoff with an armed, suicidal individual in
LaGrange, Maine. 906 F.3d at 152, 155. Officers responded to a
call for help from the suspect's wife, who reported that the
suspect was skilled with guns and was threatening to take his own
life. Id. at 156. When the officers arrived, they found the
suspect sitting outside his car in front of a restaurant and across
the street from a private residence. Id. at 152-53. He had a gun
to his head. Id. at 153. The suspect remained in this position
for an hour and twenty minutes. Id.
The suspect then began pacing around with the gun in his
hand. Id. He seemed to be assessing the scene and gathering
strength, and shouted obscenities at the officers in response to
their attempts to communicate with him. Id. At this point, the
suspect ceased to be a threat only to himself and began to pose a
threat to the officers on the scene. See id. at 156, 158 n.4.
The officers repeatedly asked him to put down his gun. Id. at
153. He refused to comply, retrieved a knife from his car, and
moved toward the officers. Id. He then began to alternate
pointing the gun at his own head and toward the officers. Id.
The officers "forcefully" commanded the suspect to "put the gun
down right now!" Id. at 153-54. He refused. Id. at 154. At
that point, the suspect was within easy firing range of the
officers. Id. at 155. After the suspect continued to refuse to
drop his weapon, an officer fired. Id. at 154. In affirming the
- 32 -
district court's grant of summary judgment based on qualified
immunity, we held that an objectively reasonable officer in the
defendant officer's position would not have thought it was a
violation of the law to use deadly force under these circumstances.
Id. at 156-57. We reasoned that the defendant officer was "keenly
aware" of the threat posed by the suspect and was also aware of
the suspect's continued escalation of the situation and his refusal
to comply with repeated commands to drop his weapon. Id. at 156,
159.
And in Sigman v. Town of Chapel Hill, 161 F.3d 782 (4th
Cir. 1998), officers responded to a report of a domestic dispute
involving an individual armed with a knife. Id. at 784. The
suspect emerged from the house, refused repeated commands to drop
what he was holding, and advanced on the officers while telling
them to "[g]o ahead and shoot me." Id. at 785. When the suspect
was within ten to fifteen feet of the officers, one of them fired.
Id. A large knife was recovered from the scene. Id. at 788. On
these facts, the Fourth Circuit found that the officer was entitled
to qualified immunity:
Where an officer is faced with a split-second
decision in the context of a volatile
atmosphere about how to restrain a suspect who
is dangerous, who has been recently -- and
potentially still is -- armed, and who is
coming towards the officer despite officers'
commands to halt, we conclude that the
officer's decision to fire is not
unreasonable. Accordingly, we reject the
- 33 -
argument that a factual dispute about whether
Sigman still had his knife at the moment of
shooting is material to the question of
whether Officer Riddle is entitled to the
protections of qualified immunity in the
particular circumstances of this case.
Id.Similarly, in the case before us the officers reasonably
believed that Rahim was a terrorist suspect, that he was armed
with a military-style knife and -- from an objective perspective
based on intelligence -- intended to kill, and that he posed an
imminent threat both to law enforcement and to members of the
public. After the Task Force intercepted Rahim's 5:18 a.m. call
on the morning of June 2, 2015, the officers were operating under
substantial time pressure to stop Rahim before he could board
public transportation. When they approached him in the CVS parking
lot shortly after 7:00 a.m., Rahim refused repeated commands to
put his hands up. Instead, he advanced on the officers with
something in his hands. The officers retreated across the length
of the parking lot while repeatedly commanding Rahim to "drop it!"
Rahim refused and taunted them to drop their weapons. The officers
did not fire until Rahim had refused at least nine total commands,
was within twenty-five feet of the officers, and had backed them
up against the edge of the parking lot. At this point, two officers
made the split-second decision to fire. The entire encounter
lasted around thirty seconds.
- 34 -
Under these circumstances, an objectively reasonable
officer would not have understood the challenged conduct to violate
the law. See Conlogue, 906 F.3d at 155. An objectively reasonable
officer would have understood Rahim to be dangerous, armed with a
military-style knife, and preparing to conduct a terrorist attack,
an extremely serious crime. The encounter was precisely the sort
of "tense, uncertain and rapidly evolving" situation where
officers are forced to make split-second decisions for their safety
and the safety of others. Graham, 490 U.S. at 397. The officers
gave clear and repeated warnings before employing deadly force,
warnings which Rahim ignored. They did not fire until Rahim had
advanced and was close enough to them to use a knife. And the
fact that two officers simultaneously made the split-second
decision to fire supports the objective reasonableness of their
decision.
The officers had a more-than-reasonable basis for
believing Rahim was armed with a military-style knife both before
and during the encounter. The officers also had a more-than-
reasonable basis to believe that Rahim had left his apartment that
morning with an intent to kill a "boy[] in blue" and/or other
people. There is no dispute Rahim said exactly those things.
D.
The officers are entitled to qualified immunity even if
we consider their actions between learning of Rahim's phone call
- 35 -
to Wright at some point after 6:00 a.m. and approaching him in the
CVS parking lot shortly after 7:00 a.m. The Estate suggests that,
after learning that Rahim was an imminent threat, the officers
should have apprehended him sooner and/or acquired a warrant. But
the officers were operating under significant time pressure during
this period, with at most an hour to develop a plan, call for
backup, approach Rahim, and stop him from boarding public
transportation. And the Estate's only theory, that this pre-
confrontation conduct may render the officers' later actions
unreasonable by bearing on their "intent" in approaching Rahim, is
not viable because the excessive-force inquiry is undertaken
"without regard to [officers'] underlying intent or motivation."
Graham, 490 U.S. at 397. The Estate has not otherwise asserted a
claim based on the officers' conduct during this earlier period.
And the Estate has pointed to no precedent, and we have
found none, establishing that the officers' pre-confrontation
conduct violates clearly established law.14 Nor has the Estate
14 We disagree with the district court's interpretation of
our precedents on the relevance of officers' pre-seizure actions.
We have not adopted the broad rule that officers have a duty to
avoid creating situations which increase the risk that deadly force
may be used. See Napier v. Town of Windham, 187 F.3d 177, 188
(1st Cir. 1999); St. Hilaire v. City of Laconia, 71 F.3d 20, 27
(1st Cir. 1995). And while we have recognized that pre-seizure
conduct may be relevant in the reasonableness analysis, we have
done so in cases where there is a much closer connection between
such conduct and the ultimate seizure. Cf. Young v. City of
Providence ex rel. Napolitano, 404 F.3d 4, 22 n.13 (1st Cir. 2005)
- 36 -
shown that an objectively reasonable officer in Doe 1 or Doe 2's
position would understand such conduct to violate the law. The
officers are entitled to qualified immunity as a matter of law.
III.
Reversed and remanded with instructions to enter summary
judgment for officers Doe 1 and Doe 2.
-Dissenting Opinion Follows-
(distinguishing Napier as "not hold[ing] that events immediately
leading up to a shooting cannot be considered as part of the
totality of the circumstances along with the precise instant
surrounding a shooting" (emphasis added)).
- 37 -
BARRON, Chief Judge, dissenting. The officers who
fatally shot Usaamah Abdullah Rahim seek summary judgment based on
qualified immunity. They do so, however, even before the
plaintiff, Rahim's Estate, has had a chance to question them about
what they knew at the time that they fired on Rahim. Thus, there
is good reason to be concerned that the officers' request is
premature.
To be sure, the Estate appears to accept that the record
is sufficiently developed to establish conclusively that the
officers had been reliably informed by the time that they
confronted Rahim that a suspect matching his description was on
the loose who had threatened to behead someone and was "armed with
a knife." The Estate also appears to accept that the record is
sufficiently developed to establish conclusively that the
officers, upon confronting Rahim, commanded that he drop whatever
he may have had in his hands and that he refused to comply.
But, to me, the key question is whether the record also
is sufficiently developed to establish conclusively that the
officers had information at the time that they fired on Rahim that
reasonably led them to think that he was advancing toward them
while holding in hand what they thought was a deadly weapon or
that in so advancing he was at least reaching for one. For, if
the record in even its present undeveloped state is also conclusive
in that respect, then the officers are entitled to summary judgment
- 38 -
based on qualified immunity, even accepting the District Court's
determination that the Estate's questioning of the officers might
produce testimony that would give rise to a factual dispute about
whether they could have taken steps to defuse the situation. See
Est. of Rahim v. United States, 506 F. Supp. 3d 104, 118-19 (D.
Mass. 2020).
I reach that conclusion because, in that event, the
summary judgment record conclusively would show that the officers
were faced with a split-second decision about how best to address
the immediate threat that Rahim posed when they fired on him. And,
it would then follow, the Estate would not be able to show that
the officers' use of force to subdue Rahim violated clearly
established law, notwithstanding that the Estate might be able to
show through questioning of the officers that they could have done
things to prevent that climactic moment from occurring. See
Pearson v. Callahan, 555 U.S. 223, 231 (2009); Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018); see also, e.g., Sigman v. Town of
Chapel Hill, 161 F.3d 782, 787-88 (4th Cir. 1998).
The Estate contends, however, that the record is not
clear in conclusively establishing that the officers reasonably
thought that Rahim was holding in hand or reaching for a deadly
weapon when they fired on him. And, I agree with the Estate on
that score. Thus, I conclude that the summary judgment record --
at least in its present state -- permits a reasonable juror to
- 39 -
find that the officers' use of deadly force against Rahim was
excessive under clearly established law. See Williams v. City of
Burlington, 27 F.4th 1346, 1352-53 (8th Cir. 2022) (noting
unanimously in denying qualified immunity at the summary judgment
stage that, despite a response to a request for admissions in which
"the estate responded that [the officer] had a reasonable belief
that [the decedent] had a gun when [the officer] used deadly
force," it would be improper to "construe the response against the
estate" when discovery had uncovered other "evidence about whether
[the decedent] had a gun" (citing Tolan v. Cotton, 572 U.S. 650,
655 (2014) (per curiam))); cf. Est. of Todashev v. United States,
815 F. App'x 446, 453-54 (11th Cir. 2020) (per curiam) (holding
that the district court abused its discretion in denying a Rule
56(d) request to conduct discovery that the plaintiff -- the estate
of a suspected terrorist shot by an FBI officer following
questioning at his residence -- argued would create a "dispute of
material fact as to whether [the officer]'s use of deadly force
was objectively reasonable" prior to ruling on the officer's
summary judgment motion).
I.
To conclude otherwise, the majority first relies on the
Estate's alleged failure to "meet[] its burden" to identify
"sufficiently analogous precedents" to show that the use of deadly
force against Rahim violated clearly established law. But, a
- 40 -
plaintiff seeking to overcome a defense of qualified immunity need
not identify an identical case to fend off that defense, Hope v.
Pelzer, 536 U.S. 730, 740-41 (2002), and, when prompted below, the
Estate offered authority to show that the use of deadly force by
the officers would have been excessive if in using such force they
did not understand Rahim to have had a deadly weapon in hand or to
have been reaching for one, see Deorle v. Rutherford, 272 F.3d
1272, 1282-85 (9th Cir. 2001) (reviewing case law and explaining
that shooting at a person "walk[ing] in the direction of an officer
at a steady gait with a can or bottle in his hand is clearly not
objectively reasonable").
The majority does not identify a single case that
indicates otherwise. Indeed, the case that it identifies that
appears the most analogous, Sigman v. Town of Chapel Hill, 161
F.3d at 788, if anything, favors the Estate. There, a Fourth
Circuit panel granted summary judgment based on qualified immunity
over a dissenting opinion to an officer who fatally shot a domestic
violence suspect. The suspect in that case, after a "highly
volatile" encounter in which he had swung a "chef's knife" and
"thr[own] objects at [the officer] through [a] broken window,"
stepped outside of the house covered in blood, ignored commands to
stand down, and began advancing on the officer. Id. at 784-85,
787. But, while it is true that the estate there had argued that
the officer was not entitled to immunity on the ground that it was
- 41 -
not clear that the suspect had been holding a knife when he was
shot, the majority concluded otherwise only because it determined
based on the officer's deposition testimony -- and that of five
other officers on the scene -- about what they had observed that
it was indisputable that the officer had "acted on the perception
that Sigman had a knife in his hand." Id. at 788 (emphasis
added).15
The majority may mean to be arguing that the Estate did
not identify precedent to show that the officers' conduct would
have violated clearly established law insofar as the officers did
reasonably believe that Rahim was holding a knife in his hand at
the key moment. But, that contention depends on an underlying
contention about what the present state of the undeveloped record
conclusively shows, which turns out to be the basis for the
majority's second rationale for ruling as it does. I thus now
turn to that rationale.
15 The dissent in Sigman took issue with the majority's
conclusion that the plaintiff had failed to create a genuine
dispute as to whether the officer reasonably thought that the
target was holding a knife at the moment the officer shot him, due
to witness affidavits that contradicted the officer's deposition
testimony. 161 F.3d at 791-92 (Michael, J., dissenting). The
dissent concluded that it was improper, in light of that evidence,
for the majority to credit the officer's account, and that it was
instead necessary for a factfinder to determine "what was actually
happening during the event . . . to evaluate the reasonableness of
[the officer]'s perceptions and actions." Id. at 791.
- 42 -
II.
In this second rationale, the majority asserts that "it
is not plausible that any of the officers will probably testify in
a deposition that Rahim was unarmed."16 This assertion does not
help the majority if by "unarmed" the majority is agreeing with
the Estate that the record at present conclusively shows that Rahim
had a weapon on his person, though not in his hand, and that he
was not reaching for that weapon. As I have just explained, the
use of deadly force against Rahim by officers who did not think
that he was holding a deadly weapon or reaching for one when they
fired on him would be excessive under clearly established law.
But, the majority may mean to be contending that it is
not plausible that the officers "probably" would provide testimony
16 After the officers filed their pre-discovery summary
judgment motion in the District Court, counsel for the Estate
invoked Rule 56(d), which by its terms permits a non-moving party
to seek deferral or denial of a summary judgment motion upon
"show[ing] by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its
opposition." Fed. R. Civ. P. 56(d). As this Court has explained,
so long as there is good cause for the failure to discover the
relevant facts sooner, "timely" and "authoritative" requests made
under this rule should be "liberally grant[ed]" if there is a
"plausible basis for believing that the specified facts probably
exist," and such facts, if collected, would "influence the outcome
of summary judgment." Pina v. Child.'s Place, 740 F.3d 785, 794
(1st Cir. 2014) (citing Simas v. First Citizens' Fed. Credit Union,
170 F.3d 37, 45-46, 45 n.4 (1st Cir. 1999)). The Estate in its
Rule 56(d) request specifically sought depositions of the officers
and other witnesses in order to, among other things, "uncover
information contradicting the defendants' version of events,"
including their alleged "belief that Mr. Rahim was holding a knife"
when they shot him.
- 43 -
that could give rise to a genuine issue of disputed fact about
whether Rahim was holding a knife in his hand when the officers
shot him, such that we must treat the present record as if it
conclusively establishes that the officers did reasonably think
that Rahim had such a weapon in hand at that key moment. Here,
too, though, I am not persuaded.
There is literally nothing in the record on appeal that
purports to state the officers' own views on that matter, and we
must construe the record as it comes to us in the light most
favorable to the Estate, because the Estate is the non-moving
party. Tolan, 572 U.S. at 655-57; see also Crawford-El v. Britton,
523 U.S. 574, 600 n.22 (1998). In addition, qualified immunity
does not protect those who are asserting it from discovery about
the information that they in fact "possessed at the time of [their]
allegedly unlawful conduct" if their possession of that
information would bear on whether the immunity applies. Wood v.
Clemons, 89 F.3d 922, 929–30 (1st Cir. 1996) (quoting McBride v.
Taylor, 924 F.2d 386, 389 (1st Cir. 1991)); see Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987) ("[I]f the actions [the
defendant] claims he took are different from those the [plaintiffs]
allege (and are actions that a reasonable officer could have
believed lawful), then discovery may be necessary before [the
defendant]'s motion for summary judgment on qualified immunity
grounds can be resolved."); see also Crawford-El, 523 U.S. at 593
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n.14 (citing Anderson, 483 U.S. at 646 n.6, and explaining that
neither Harlow v. Fitzgerald, 457 U.S. 800 (1982), "nor subsequent
decisions [of the Supreme Court] create an immunity from all
discovery" (emphasis in original)).
The majority does point to an account of what the
officers say they saw in Rahim's hand that the officers themselves
offered in affidavits. But, the District Court excluded that
account from consideration of the motion for summary judgment
precisely because the Estate had not been given a chance to test
that account through adversarial questioning, Est. of Rahim, 506
F. Supp. 3d at 113-14, and the government, in appealing the
District Court's denial of the motion, does not challenge that
aspect of the District Court's summary judgment ruling.
That appellate waiver aside, it also is not evident that
we have jurisdiction to consider the officers' untested account in
resolving this interlocutory appeal. After all, we must decide
this appeal by taking as given the facts on which the District
Court relied. See McKenney v. Mangino, 873 F.3d 75, 84 (1st Cir.
2017) ("Although the defendant invites us to adopt a spin on the
summary judgment record different from that taken by the district
court, we lack jurisdiction to accept that invitation . . . .").
Finally, we cannot predict how the officers would be
likely to testify if questioned by the party suing them by choosing
to credit their as-yet-untested account. Our adversarial system
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does not permit us to rely on such a say-so understanding of how
truth is best discovered.
Accordingly, I can see no basis for concluding that it
is probable that no evidence would emerge during discovery that
would permit a reasonable juror to find that the officers thought
that, as Rahim moved towards them, he neither had a deadly weapon
in hand nor was reaching for one that was on his person. Indeed,
the officers themselves -- once subjected to adversarial
questioning -- could provide testimony that would provide support
for just such a finding.
I should add that no precedent is to the contrary to my
conclusion in this regard. The Eleventh Circuit has recognized
that there are limits on permissible discovery in the face of an
assertion of qualified immunity. See Harbert Int'l, Inc. v. James,
157 F.3d 1271, 1280 (11th Cir. 1998). But, no case supports
effectively preventing a plaintiff from questioning a defendant
about facts critical to the determination of whether qualified
immunity is warranted. See id. (explaining that the desired
discovery "would [not] establish either that the defendants acted
outside the scope of their discretionary authority or that they
had violated clearly established law"); Garner v. City of Ozark,
587 F. App'x 515, 518 (11th Cir. 2014) (per curiam) (explaining
that there was no showing that the desired expert opinions were
relevant to the qualified immunity defense); see also Olaniyi v.
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District of Columbia, 763 F. Supp. 2d 70, 101 n.26 (D.D.C. 2011)
(relying on Harbert and explaining that the plaintiff had not
identified potential facts that could "overcome the qualified
immunity defense").17
In fact, the Eleventh Circuit has explained that it is
"especially true in a deadly force case, where 'the witness most
likely to contradict the officers' story -- the person shot dead
-- is unable to testify,'" that the inquiry as to whether discovery
under Rule 56(d) is warranted weighs in favor of relief, given
that the relevant evidence and witnesses are "in the control of
the moving party." Est. of Todashev, 815 F. App'x at 453-54 (first
quoting Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006), and
then McCray v. Md. Dep't of Transp., 741 F.3d 480, 484 (4th Cir.
2014)). And, like the defendant in Estate of Todashev, the
defendants in this case do
not claim that [they are] entitled to
qualified immunity because [their] conduct
would not have violated clearly established
law under plaintiff's version of the facts.
Rather, [they claim] that [they are] entitled
to qualified immunity under [their own]
version of the facts, based upon evidence that
is almost exclusively within [their] control,
while simultaneously prohibiting Plaintiff
from conducting any discovery that might test
or contradict [their] version.
17The same is true of the Eighth Circuit precedent that the
majority cites on the issue. See Johnson v. Moody, 903 F.3d 766,
774 (8th Cir. 2018) ("Plaintiffs did not request additional
discovery focused on the qualified immunity issue.").
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Id. at 453 (emphasis and internal quotation omitted)
(distinguishing Harbert, 157 F.3d at 1280).
The majority is right that Estate of Todashev is an
unpublished opinion -- and from another circuit to boot. But, I
see little reason to ignore its reasoning. It purports to apply
the precedents of the Eleventh Circuit, and it is the precedents
of that Circuit that the majority itself invokes in support of its
position that no discovery as to what the officers believed was in
Rahim's hand is warranted in this case. Moreover, that ruling
also accords with the reasoning of other circuits, see Flythe v.
District of Columbia, 791 F.3d 13, 19 (D.C. Cir. 2015) (collecting
cases and noting that "courts . . . 'may not simply accept what
may be a self-serving account by the police officer'" (quoting
Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994))), as well as
our own, cf. Asociación de Periodistas de P.R. v. Mueller, 680
F.3d 70, 77-78 (1st Cir. 2012) (holding that the district court
did not abuse its discretion in partially granting a Rule 56(d)
motion to the extent it "allow[ed] the plaintiffs to depose only
those individuals who had supplied affidavits in support of the
summary judgment motion").
III.
The majority's final rationale is that the Estate has
"conceded" that the officers "[went] into the encounter" with a
reasonable belief "that Rahim was armed and planned to carry out
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an imminent attack." If the majority means to suggest only that
the Estate has conceded that the officers had been reliably
informed that Rahim had threatened to kill someone and was armed
with a knife (in the sense of having one on his person) that day,
then I cannot disagree. But, that concession would not on its own
permit us to reverse the District Court and order that it grant
summary judgment based on qualified immunity to the officers. The
record as it presently stands still would not conclusively
establish in that circumstance that at the moment that the officers
chose to use deadly force against Rahim they reasonably thought
that he was holding or reaching for a deadly weapon.
Perhaps, then, the majority means that the Estate
conceded -- either below or on appeal -- that the officers did
have information that reasonably led to them to hold the belief
that Rahim had a knife or other deadly weapon in his hand (or even
that he was reaching for one) when they shot him. But I can find
no support in the record for our concluding that the Estate has
made a concession of that kind.
True, the Estate's counsel did contend below that his
client could survive summary judgment even if that was what the
officers thought about what Rahim had in his hand at the key
moment. But, the Estate's counsel also repeatedly argued in the
alternative that further discovery could produce facts that would
call into question whether the officers "believ[ed] [that Rahim]
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had a knife" and whether that alleged belief was "reasonable."
Indeed, as the majority acknowledges, the Estate filed a Rule 56(d)
affidavit seeking an opportunity to pursue such discovery. And,
the Estate argues on appeal that it "disputes all of the[] facts"
about the incident as presented by the officers, and that,
"[b]ecause there has been no discovery . . . [the Estate] has not
been able to interview or take depositions of any of the officers
. . . [or] any of the civilian witnesses . . . some of whose
accounts differ from those of the officers."18
IV.
Qualified immunity prevents many claims of excessive
force from succeeding precisely because of the in-the-moment
nature of the judgment that officers attempting to subdue suspects
must make. It does not permit courts to credit, though, the
untested accounts that defendants accused of excessive force offer
18 The majority also asserts that the Estate "conceded" that
the "officers reasonably believed Rahim to be armed" on appeal "by
failing to meaningfully respond to the government's argument that
the statements in the Estate's complaint represent admissions that
the officers reasonably believed Rahim to be armed." But, as the
Estate has made clear to us, the complaint's allegations are
caveated in each instance in a way that demonstrates that the
Estate is not alleging itself that a particular event took place
or that a particular impression was held. Cf. Williams, 27 F.4th
at 1352. The majority's argument that the Estate is now estopped
from taking the position that the officers did not believe Rahim
had a knife in hand because such argument is "contrary" to its
theory in the District Court is also mistaken. As I have
explained, there is no inconsistency, given the alternative
grounds for defeating summary judgment the Estate has pressed
throughout.
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when the plaintiff has been denied any chance to test those
accounts.
The Estate pressed below and is pressing to us the
argument that summary judgment must be denied to the officers
because the Estate has not yet had a chance to test their account
of just how much of a threat Rahim posed at the key moment. I am
convinced that it is plausible that such testing would reveal a
genuine factual dispute about whether the officers thought Rahim
had a weapon in hand (or was reaching for one) during their deadly
encounter with him. Accordingly, I respectfully dissent from the
majority's decision to reverse the District Court's denial of the
officers' motion for summary judgment.
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