Conlogue v. Hamilton , 906 F.3d 150 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2210
DANARAE CONLOGUE, as personal representative
of the Estate of LEWIS N. CONLOGUE,
Plaintiff, Appellant,
v.
SCOTT HAMILTON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Thompson, Selya, and Lipez,
Circuit Judges.
Hunter J. Tzovarras for appellant.
Jonathan R. Bolton, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, and Cathy Roberts, Assistant
Attorney General, were on brief, for appellee.
October 11, 2018
SELYA, Circuit Judge. This tragic case involves the
fatal shooting of an armed civilian by a state trooper following
a prolonged standoff. The appeal turns on an application of the
doctrine of qualified immunity — a doctrine that protects public
officials (including police officers) from civil liability while
acting under color of state law, save only for officials who act
incompetently or in disregard of clearly established legal
principles. See Malley v. Briggs, 475 U.S. 335, 341 (1986). The
court below painstakingly catalogued the relevant facts,
determined in a thoughtful rescript that the defendant was entitled
to qualified immunity, and entered summary judgment accordingly.
See Conlogue v. Hamilton, No. 1:16-cv-296, 2017 WL 5339895, at *2-
8 (D. Me. Nov. 13, 2017). After careful consideration, we affirm.
I. BACKGROUND
When reviewing the entry of summary judgment, our task
demands that we view the facts in the light most favorable to the
non-movant (here, the plaintiff). See Savard v. Rhode Island, 338
F.3d 23, 26 (1st Cir. 2003) (en banc). Here, however, the raw
facts are largely undisputed. We set them forth below, urging the
reader who hungers for more exegetic detail to consult the district
court's rescript.
This case has its genesis in a set of facts that played
out on August 3, 2014, in front of a deserted restaurant in the
bucolic town of LaGrange, Maine. At 3:41 p.m., DanaRae Conlogue
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called 911 to report that her husband, Lewis N. Conlogue, was
threatening suicide. She related that he had gotten out of their
parked vehicle, put a gun to his head, and warned her to avert her
eyes. Officers from the Penobscot County Sheriff's Office and the
Maine State Police responded quickly to the scene. They took Mrs.
Conlogue to a place of safety, established a command post, secured
the perimeter, and assigned officers to strategically located
positions.
Thomas Fiske, a Maine state trooper, arrived at around
4:17 p.m. and positioned himself with two other troopers on the
lawn of a residence across the street from the restaurant (some
200 feet away). Defendant-appellee Scott Hamilton, a sergeant and
a member of the state police's tactical team, arrived shortly
thereafter. Hamilton had been specially trained in the use of
deadly force in high-risk situations. From his vantage point, he
could not see the other troopers but learned of their position
from communications broadcast over a police-operated radio.1
Hamilton also learned that Conlogue was brandishing a semi-
automatic handgun — a fact that helped Hamilton to calibrate the
level of threat posed.
1
Throughout the remainder of the encounter, Fiske and the
other officers were in constant radio communication. While
Hamilton was not himself equipped with a radio, he was situated
next to another trooper, Taylor Dube, who was so equipped. Thus,
Hamilton heard all the relevant radio traffic.
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For the first hour and twenty minutes, Conlogue remained
mostly stationary, sitting on a rock with his gun pointed at his
head. At approximately 5:02 p.m., Fiske reported that Conlogue
had stood up and begun pacing around lethargically. In response
to this report, Hamilton changed his position so that he could
more clearly observe Conlogue through the magnifying scope
attached to his rifle. Fiske then reported over the radio that
Conlogue appeared to be assessing the scene: he was looking 360
degrees around his position and (according to Fiske) seemed to be
gaining strength and momentum. At this juncture, another officer
— William Sheehan of the Sheriff's Office — initiated direct
communication with Conlogue.
Sergeant Sheehan, using a loudspeaker, repeatedly asked
Conlogue to put down his weapon, assuring him that the officers
were worried about him and were there to help. When Conlogue
responded by yelling obscenities, the officers knew that Conlogue
could hear Sheehan's words. Even so, Sergeant Sheehan's warnings
seemed only to escalate the tension. Conlogue went to his car,
retrieved a knife, placed it in his back pocket, moved back toward
the troopers, shaped his fingers like a gun, and pointed the
simulated gun at Fiske and the other troopers.
Next, Conlogue approached the road that separated him
from the troopers. He paused to draw a line in the dirt, and
Sheehan assured him that no officers would cross that line.
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Conlogue then moved closer to the troopers and drew another line.
Fiske became concerned for his own safety — a fear that he
communicated to the other officers over the radio.
Despite continued warnings to put down his weapon and
cooperate with the police, Conlogue refused to comply. He
displayed a fully loaded magazine, placed the magazine into his
gun, and pointed it at a forty-five degree angle over the heads of
Fiske and the two other troopers. This action elicited a spate of
warnings from Sheehan. Undeterred, Conlogue alternated between
pointing the gun at his own head and pointing it in the direction
of the troopers (at an angle of roughly forty-five degrees).
When Conlogue flexed his wrist and extended the gun in
front of his body, Fiske immediately related over the radio that
the gun was "[a]bout forty-five degrees . . . over our heads" and
added that "I'm not comfortable." To Hamilton, Fiske's tone
conveyed fear.2 Sheehan spoke forcefully to Conlogue, demanding
that "[y]ou need to put the gun down. You need to put the gun
down right now!" Hamilton neither saw nor heard anything
indicating that Conlogue was of a mind to comply. After waiting
2Hamilton's assessment was on the mark. In a sworn
declaration filed in support of Hamilton's motion for summary
judgment, Fiske vividly described his situation: "Mr. Conlogue
then began flexing his wrist, moving the barrel of the gun down
closer to my head, and then back up. When he lowered the gun, I
was able to see down the barrel."
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eleven seconds, Hamilton fired a single shot that struck and killed
Conlogue.
We fast-forward to May of 2016 when Mrs. Conlogue, in
her capacity as personal representative of her husband's estate,
brought suit in a Maine state court. Her complaint asserted claims
for excessive force under 42 U.S.C. § 1983 and the Fourth
Amendment, together with several causes of action under state law.
Citing the existence of a federal question, Hamilton removed the
suit to the federal district court. See 28 U.S.C. §§ 1331,
1441(a).
The parties engaged in pretrial discovery. Although the
complaint originally named other defendants in addition to
Hamilton, those defendants were dropped along the way. Following
the completion of discovery, the parties (including Hamilton, as
the sole remaining defendant) filed cross-motions for summary
judgment. Hamilton's motion raised, inter alia, a qualified
immunity defense. After marshaling the facts and carefully
surveying the applicable case law, the district court found no
precedent suggesting "that an officer's use of deadly force is
objectively unreasonable when a person points a loaded gun at a
forty-five degree angle over the heads of other officers after
being warned repeatedly to drop the gun." Conlogue, 2017 WL
5339895, at *11. In addition, the court concluded that Hamilton
"reasonably determined that Conlogue posed an immediate threat to
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the troopers when he pointed his gun over their heads, and that no
other remedial action was feasible given the tense, rapidly
evolving situation and the various failed attempts at de-
escalation." Id. at *12. Consequently, the court held that
Hamilton was entitled to qualified immunity on the federal claims
and subsequently extended that reasoning to justify the dismissal
of the state-law causes of action as well. See id. Having laid
this foundation, the court granted Hamilton's motion for summary
judgment and denied the plaintiff's cross-motion. See id. at *13.
This timely appeal ensued.
II. ANALYSIS
We review an order granting or denying summary judgment
de novo. See McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017),
cert. denied, 138 S. Ct. 1311 (2018). The pendency of cross-
motions for summary judgment does not alter the standard of review.
See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). Because
the plaintiff challenges only the grant of summary judgment on her
federal claims, we limit our analysis accordingly.
Qualified immunity inoculates government officials from
civil liability based on their discretionary actions and decisions
which, although injurious, "do[] not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
As we have acknowledged, "[t]he doctrine's prophylactic sweep is
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broad." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017). We
view claims of qualified immunity through the lens of objective
reasonableness. So viewed, only those officials who should have
known that their conduct was objectively unreasonable are beyond
the shield of qualified immunity and, thus, are vulnerable to the
sword of liability. See id.
The immunity afforded by this doctrine is particularly
important for police officers in order not to "unduly inhibit the
assiduous discharge of their dut[y]" to protect the community at
large. Savard, 338 F.3d at 27. In such cases, the reasonableness
calculus "must embody allowance for the fact that police 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).
Where, as here, a defendant invokes the defense of
qualified immunity, the necessary analysis is two-pronged. See
McKenney, 873 F.3d at 81. The court must determine whether the
defendant violated the plaintiff's constitutional rights. See id.
It also must determine whether the allegedly abridged right was
"clearly established" at the time of the defendant's claimed
misconduct. Id. Although this description implies a set sequence,
these prongs "need not be taken in order." Alfano, 847 F.3d at 75
(citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). A court
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is well within its authority to "alter the choreography in the
interests of efficiency" beginning — and perhaps ending — with the
second prong. Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir.
2015). So it is here.
The second prong (whether the law was clearly
established at the time of the incident) is itself divisible into
two inquiries. First, 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. See McKenney, 873 F.3d at 81. Second,
the plaintiff must show that an objectively reasonable officer
would have known that his conduct violated the law. See id.
Because many law enforcement encounters arise from confusing,
high-stakes circumstances, this second inquiry provides some
breathing room for a police officer even if he has made a mistake
(albeit a reasonable one) about the lawfulness of his conduct.
See Jennings v. Jones, 499 F.3d 2, 19 (1st Cir. 2007) (noting that
this inquiry "affords protection to officers who reasonably, yet
mistakenly, employ excessive force in violation of the Fourth
Amendment").
These two parts of the second prong need not be
considered in sequence. After all, an officer seeking qualified
immunity may be entitled to its protective shield based solely on
the result of the second inquiry. Put simply, even if the
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officer's conduct violated a consensus of authority, he remains
immune from liability so long as an objectively reasonable officer
would not have known that his actions violated the law.
Even if we assume arguendo that Hamilton's action was
contrary to a consensus of controlling authority, we are satisfied
that an objectively reasonable officer standing in Hamilton's
shoes would have thought it appropriate to deploy deadly force
against an armed man who, after a nearly three-and-one-half-hour
standoff in which he was repeatedly warned to drop his weapon,
persisted in pointing a loaded semi-automatic firearm narrowly
above the heads of three officers and within easy firing range.
We explain briefly.
We recognize, of course, that our analysis "must be
particularized to the facts of the case." McKenney, 873 F.3d at
82 (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017) (per
curiam)). "Even so, there need not be a case directly on point"
for us to draw a conclusion as to the reasonableness of the
defendant's conduct. Id. at 82-83. Some general standards serve
as useful guideposts.
To begin, the case law makes pellucid that two principal
requirements must be satisfied before a police officer can lawfully
use deadly force. For one thing, "the use of deadly force is
constitutional only if, at a minimum, a suspect poses an immediate
threat to police officers or civilians." Jarrett v. Town of
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Yarmouth, 331 F.3d 140, 149 (1st Cir. 2003) (per curiam). For
another thing, the suspect ordinarily must be warned (at least
when a warning is feasible) before a police officer may use deadly
force. See McKenney, 873 F.3d at 82. Although there is no
standardized script for such a warning, the key is that the warning
must be adequate in light of the circumstances then obtaining.
See Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23
(1st Cir. 2005).
In the case at hand, the undisputed facts make it
abundantly clear both that it was reasonable for Hamilton to
believe that Conlogue was an imminent threat to others and that he
was repeatedly warned to drop his weapon. The standoff was
prompted by a call for help from Conlogue's wife (the plaintiff),
who reported that he was threatening his own life and that he
happened to be "very good with guns." The officers who responded
were able to confirm a portion of this worrisome account: Conlogue
was seated near his parked car with a semi-automatic handgun
pointed at his head.
Although Conlogue appeared at this time to be a threat
only to himself, the situation soon changed. Conlogue began to
stir and Sheehan admonished him to put down his weapon. Conlogue's
reply was profane, and he proceeded to retrieve a knife from his
car.
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The situation continued to deteriorate. Conlogue made
gun-like gestures with his hand, pointing at Fiske and two other
troopers. He raised three fingers to confirm that he had three
men in sight. Sheehan continued to implore Conlogue to disarm,
but Conlogue turned a deaf ear to these serial warnings. Next,
Conlogue displayed a fully loaded magazine and inserted it into
his gun. He then raised the gun, and waved it back and forth,
aiming alternately at his own head and at the troopers.
The record makes manifest that Hamilton was keenly aware
of the threat that Conlogue posed. So, too, he was aware that
Conlogue had been told several times to drop his weapon but had
refused to comply. From everything that Hamilton saw and heard,
Conlogue was continuing to escalate the confrontation — arming
himself with a knife, making threatening gestures, moving closer
to the troopers, and pointing his gun in their direction. When
Fiske reported that Conlogue was inching closer to the troopers
and pointing his gun in their direction, Hamilton heard what he
reasonably perceived as fear in Fiske's voice. Hamilton had reason
to believe that Fiske himself was at least partially exposed,
making Fiske more vulnerable were Conlogue to open fire. After
Conlogue failed to heed yet another warning to drop his gun and
Fiske announced his growing discomfort, Hamilton fired the fatal
shot.
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Two other officers later testified that, when Hamilton
fired, they too were preparing to shoot. This circumstance was
not known to Hamilton and, therefore, could not have been relevant
to his decision — but it is certainly relevant to us. In
considering whether an objectively reasonable police officer would
have used deadly force, the fact that two other police officers on
the scene also were about to fire supports the objective
reasonableness of Hamilton's decision. See Ciolino v. Gikas, 861
F.3d 296, 304 (1st Cir. 2017) (considering, as part of
reasonableness inquiry, contemporaneous perceptions of other
officers on the scene).
In our view, these facts compel a finding that Hamilton
was entitled to qualified immunity. We cannot say that an
objectively reasonable police officer standing in Hamilton's shoes
would have thought it a violation of the law to deploy deadly force
in these highly charged circumstances. Under these circumstances,
Hamilton reasonably perceived Conlogue to be an imminent threat,
with no less drastic means of remediation at hand.
The plaintiff resists this conclusion. Although the
plaintiff acknowledges the undisputed fact that Hamilton "was told
right before firing the shot that [Conlogue] had the gun pointed
in the air over the officers' heads," she nevertheless asserts
that the use of deadly force was objectively unreasonable. To
this end, she argues that Hamilton could not have regarded Conlogue
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as a threat to anyone other than himself because Hamilton "had no
information [Conlogue] ever pointed the handgun at any of the
officers."
This argument is belied by the facts. Conlogue's gun
was pointed in the direction of the troopers — and the fact that
he was aiming it over their heads is cold comfort. Practically
speaking, there is very little difference in the threat level
between a gun aimed directly at a person's head and a gun aimed at
a forty-five degree angle over the person's head. The plaintiff's
argument is also belied by the cases that she cites. Those cases
say quite clearly that the use of deadly force may be reasonable
if an individual is holding the weapon in a way that threatens
others on the scene. See, e.g., Cooper v. Sheehan, 735 F.3d 153,
159 (4th Cir. 2013) (explaining that "deadly force may only be
used by a police officer when, based on a reasonable assessment,
the officer or another person is threatened with the weapon"
(emphasis in original)); id. at 159 n.9 (noting that an armed
suspect may pose a threat even without "pointing, aiming, or firing
his weapon"); see also Napier v. Town of Windham, 187 F.3d 177,
187-88 (1st Cir. 1999) (concluding that officer need not have gun
pointed directly at him in order reasonably to fear danger). It
follows, we think, that when the plaintiff suggests that a gun
must be pointed directly at an officer in order to be threatening,
she is simply wrong.
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In a similar vein, the plaintiff suggests that the use
of lethal force was objectively unreasonable because Conlogue was
never explicitly warned that "he would be shot if he failed to put
down the weapon." This suggestion lacks force. When possible, a
warning is required before a police officer resorts to the use of
deadly force. Here, however, Conlogue received several clear and
timely warnings to drop his weapon, and he chose to ignore them.
No more was exigible. See Tennessee v. Garner, 471 U.S. 1, 11-12
(1985) (instructing "if the suspect threatens the officer with a
weapon . . . deadly force may be used . . . if, where feasible,
some warning has been given" (emphasis supplied)). As long as the
warning is clear and timely — which was the case here — police
officers need not use any particular set of magic words.3 When —
as in this case — a gun is pointed toward officers during a standoff
between an armed man and law enforcement, a warning to disarm would
seem to imply that deadly force may be used if the warning is not
heeded.
Taking a somewhat different tack, the plaintiff suggests
that the length of the standoff (approximately three-and-one-half
hours) cuts against a finding of reasonableness. We do not agree.
3 This holding is consistent with our decision in McKenney,
in which we stated that "some sort of warning" should be given
before using deadly force. 873 F.3d at 82. Our decision there
did not impose a requirement that the warning specify the
consequences of non-compliance, nor do we impose such a requirement
today.
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Hamilton knew that the police had spent considerable time trying
to diffuse the situation, allowing Conlogue ample opportunity to
heed their warnings. Yet, Conlogue spurned a series of warnings,
and his behavior throughout the encounter was unpredictable,
culminating in the pointing of his gun in the direction of
officers. Under these circumstances, the length of the standoff
does not militate against a finding of objective reasonableness.
Cf. Young, 404 F.3d at 23 (finding it unreasonable to shoot a
suspect "extraordinarily quickly" without an "adequate warning").
As a fallback, the plaintiff argues that our decision in
McKenney is a testament to Hamilton's lack of objective
reasonableness. This argument misreads McKenney. There, we
considered whether a police officer was entitled to qualified
immunity when he fatally shot a suicidal man who was walking slowly
in his own driveway, dangling a gun at his side and not pointing
it at anyone. See 873 F.3d at 84. The officer deployed deadly
force a full six minutes after the decedent ignored a warning to
drop his weapon. See id. We found that the officer was not
entitled to qualified immunity, basing that conclusion on the
particular facts of the case, including the absence of any real
threat of imminent harm to others. See id. at 81-83.
The case at hand bears some superficial similarities to
McKenney, but the two cases are readily distinguishable. Unlike
in McKenney, the gun-wielder's behavior in this case reasonably
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could be interpreted as constituting an imminent threat to others.
After all, immediately before Hamilton fired, Conlogue pointed his
loaded firearm just above the heads of three police officers.
Previously, Conlogue had made threatening gestures to these
officers, pointing his hand in the shape of a gun at them. Nothing
of this sort occurred in McKenney.
There are also important temporal differences between
the two cases. In McKenney, six minutes elapsed between when the
decedent raised the gun and when he was shot. See id. at 84. In
the interim, he had lowered the gun so that it was pointing toward
the ground. See id. Here, in contrast, Conlogue raised the gun
and pointed it in the troopers' direction only moments before he
was shot.
As a counterweight, the plaintiff notes that the
McKenney court spoke of the importance of physical proximity to
the reasonableness calculus, see id. at 82, and questions what she
perceives as a lack of proximity here. Proximity, though, is a
relative measurement. Certainly, the presence of a pointed firearm
changes the calculation. When an individual is pointing a loaded
firearm, anyone within firing range is in proximity to the life-
threatening danger.
To say more about the comparison between this case and
McKenney would be supererogatory. We conclude, without serious
question, that these cases are not fair congeners. Thus, McKenney
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in no way bars a finding that Hamilton's actions were objectively
reasonable.4
Of course, these two cases do share a tragic result —
tragic for the person who lost his life, for the family left
behind, and for the police officer who fired the fatal bullet. In
the last analysis, though, each case is dependent on its own facts.
The doctrine of qualified immunity must flex to those tense,
uncertain, and often life-threatening situations in which an
officer may find himself embroiled. Because there is no principled
way we can say that an objectively reasonable officer in Hamilton's
position would have known that he was violating the law by
deploying deadly force against Conlogue, the district court did
not err in cloaking Hamilton in the mantle of qualified immunity.
III. CONCLUSION
We need go no further. As we said at the outset, this
is a tragic case. But the facts of record make pellucid that the
police were faced with a nightmare scenario — a scenario in which
an armed and disturbed individual wholly disregarded serial
entreaties to disarm and engaged in a course of conduct that
4We add a coda. In McKenney, we observed that "federal
courts have afforded a special solicitude to suicidal individuals
in lethal force cases when those individuals have resisted police
commands to drop weapons." 873 F.3d at 82. But such solicitude
has its limits and it is afforded only to suicidal individuals who
"pose no real security risk to anyone other than themselves." Id.
Here, Conlogue's actions threatened not only his own life but also
— as time went on — the lives of officers on the scene.
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gradually elevated the level of threat. Tension mounted over time,
and when the armed individual took actions that placed officers at
imminent risk of serious bodily harm, Hamilton — reasonably
concluding that no less drastic means of remediation were feasible
— fired the fatal shot. Under the totality of the circumstances,
we conclude that the district court's entry of summary judgment in
Hamilton's favor on the basis of qualified immunity must be
Affirmed.
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