FAGRE v. PARKS

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

JESSICA L. FAGRE, as the Personal )

Representative of the Estate OF )

AMBROSHIA E. FAGRE, )

)

Plaintiff, ) Case No. 1:19-cv-00083-LEW

)

v. )

)

JEFFREY PARKS, )

Defendant.

ORDER ON DEFENDANT JEFFREY PARKS’ MOTION FOR

SUMMARY JUDGMENT

Plaintiff Jessica Fagre, as personal representative of the Estate of Ambroshia

(“Amber”) Fagre, brings civil rights claims under 42 U.S.C. § 1983 and related provisions

of state law against Maine State Police Trooper Jeffrey Parks for firing the shot that

eventually killed Amber Fagre on February 10, 2017. Plaintiff alleges that Mr. Parks

violated Amber Fagre’s rights when he fired his service weapon at the driver of the car in

which Ms. Fagre was a passenger. I now address Defendant Parks’ Motion for Summary

Judgment. ECF No. 41. Mr. Parks argues that he is entitled to judgment as a matter of law

on Plaintiff’s state and federal claims because he did not violate Ms. Fagre’s Fourth

Amendment Rights, and, alternatively, because he is entitled to immunity from suit. For

the reasons that follow, Mr. Parks’ Motion is GRANTED, and this case is DISMISSED.

SUMMARY JUDGMENT FACTS

The summary judgment facts are drawn from the parties’ stipulations, if any, and

from their statements of material facts submitted in accordance with Local Rule 56. The

Court will adopt a statement of fact if it is admitted by the opposing party and is material

to the dispute. If a statement is denied or qualified by the opposing party, or if an

evidentiary objection is raised concerning the record evidence cited in support of a

statement, the Court will review those portions of the summary judgment record cited by

the parties, and will accept, for summary judgment purposes, the factual assertion that is

most favorable to the party opposing the entry of summary judgment, provided that the

record material cited in support of the assertion is of evidentiary quality and is capable of

supporting the party’s assertion, either directly or through reasonable inference. D. Me.

Loc. R. 56; Boudreau v. Lussier, 901 F.3d 65, 69 (1st Cir. 2018).

The facts leading up to the shooting are undisputed. On February 10, 2017, off-duty

Maine State Police Lieutenant Scott Ireland was notified by his neighbor that a suspicious

Dodge Durango was parked on the neighbor’s property in Vassalboro, Maine. Defendant’s

Statement of Undisputed Material Fact (“DSUMF”), ECF No. 40, ¶¶ 1-3. In response to

his neighbor’s concern, Lieutenant Ireland drove his police cruiser to his neighbor’s home

to investigate. Id. ¶ 4. Upon arrival, Lieutenant Ireland observed a Dodge Durango parked

in a turnaround on Arnold Road, a narrow dirt road with about a dozen homes. Id. ¶¶ 11-

13. Inside the vehicle he found a woman in the passenger seat slumped over and seemingly

unconscious. Id. ¶ 4. Lieutenant Ireland approached the vehicle, pounded on the passenger

window, and, once the woman was awake, asked her to get out of the car. Id. ¶¶ 6-7. The

woman, Ambroshia (“Amber”) Fagre, was initially unable or unwilling to explain why she

was there, or where the driver of the Durango had gone. Id. ¶ 6. The Lieutenant suspected

she and her companion were breaking into homes on Arnold Road based on footprints

leading to nearby houses. Id. ¶ 7. He reported this suspicion over his cruiser’s radio, then

resumed questioning Ms. Fagre, who ultimately admitted the driver was breaking into

residences. Id. ¶ 9.

Lieutenant Ireland then made several phone calls in an attempt to determine the

safety of Arnold Road residents. Id. ¶ 18. Meanwhile, Sergeant Galen Estes of the

Kennebec County Sheriff’s Office joined Lieutenant Ireland, informing him he was there

to investigate a burglary in the area. Id. ¶ 20. Lieutenant Ireland learned from Sergeant

Estes that a nearby homeowner had been tied up at gunpoint and had his home ransacked,

and he reported as much over his cruiser’s radio. Id. ¶¶ 18-19. He went to the home to

investigate while Sergeant Estes stayed with Amber Fagre at the Durango. Id. ¶ 22. Shortly

thereafter Vassalboro Police Chief, Mark Brown and Maine State Police Trooper, Jeffrey

Parks joined Sergeant Estes on the scene. Id. ¶¶ 22, 27.

At the home, Lieutenant Ireland learned that Kadhar Bailey, later identified as Ms.

Fagre’s boyfriend and the driver of the Durango, had held the homeowner at gunpoint,

ransacked the house, and fled in the homeowner’s pickup truck. Id. ¶ 24. Following a tip

from a neighbor, Lieutenant Ireland and Sergeant Estes then drove to the south end of

Arnold Road where a man fitting Mr. Bailey’s description had been spotted. Id. ¶¶ 41-42.

Chief Brown stayed with Ms. Fagre and the Durango. Id. ¶ 43. After searching the area

surrounding the neighbor’s house, Lieutenant Ireland spotted Mr. Bailey running through

the woods in the direction of the Durango. Id. ¶ 45. Sergeant Estes radioed Chief Brown

and updated him regarding the home invasion and his belief that Mr. Bailey was heading

toward the Durango and was armed. Id. ¶ 46.

Chief Brown, still with Ms. Fagre near the Durango, then saw Mr. Bailey

approaching with a handgun, identified himself as a police officer, drew his own firearm,

and ordered Mr. Bailey to stop. Id. ¶¶ 50-51. Despite Chief Brown’s commands, Mr.

Bailey continued to approach. Id. ¶ 50. Chief Brown took cover behind a snowbank and

exchanged gunfire with Mr. Bailey. Id. ¶¶ 51-52. Mr. Bailey got in the Durango, and

began to drive westbound down Arnold Road toward Webber Pond Road. Id. ¶ 53. Chief

Brown fired at least two additional shots toward the driver’s side door of the Durango as it

drove away. Id. ¶ 54.

Meanwhile, Trooper Parks was conducting safety checks at nearby residences on

Fairway Drive, parallel to Arnold Road. Id. ¶ 39. He had heard the reports of Mr. Brown’s

armed burglary on the radio, and was checking the Fairway Drive houses at Lieutenant

Ireland’s request. Id. ¶ 29. Upon learning the suspect had been located, Trooper Parks

returned to Arnold Road. Id. ¶ 59. On arrival, he heard gunshots coming from the direction

of the Durango, stopped his police cruiser on Arnold Road about 75 feet away, and got out

of his vehicle, taking cover near the rear. Id. ¶¶ 60-62, 65. The high snowbanks made it

impossible for another vehicle to get by Trooper Parks’ cruiser on Arnold Road. Id. ¶ 69.

From his vantage point, Trooper Parks saw Mr. Bailey get into the Durango, rev the engine,

and rapidly accelerate down Arnold Road toward his cruiser; given the speed, it became

clear that Mr. Bailey was preparing to ram his parked car. Id. ¶ 70. Taking cover, Trooper

Parks moved behind a snowbank on the passenger side of the approaching Durango. Id. ¶

71. Trooper Parks fired six or seven shots through the oncoming Durango’s windshield,

which ultimately rammed his police cruiser, sending it some 50 feet past Trooper Parks’

perch on the snowbank. Id. ¶¶ 70-79, 81. The parties agree that Trooper Parks did not

have time to issue a warning to the driver, and that Mr. Bailey would not have been able to

hear the warning regardless, given the Durango’s revved engine. Id. ¶¶ 76-77; Pl.’s Resp.

to DSUMF, ECF No. 47, ¶¶ 76-77. The parties, likewise, agree that Trooper Parks could

not see anyone other than Mr. Bailey in the Durango as it approached him at high speed on

Arnold Road. Id. ¶ 86.

Once the Durango had come to a stop, Lieutenant Ireland approached the driver’s

side of the Durango. Id. ¶ 92. When he observed Mr. Bailey reaching for something in the

vehicle, Lieutenant Ireland fired a shot at Mr. Bailey, killing him. Id. A search of the

Durango following the incident revealed a .32 caliber semi-automatic pistol between the

driver’s seat and center console, with one bullet in the chamber and two in the magazine.

Id. ¶ 101. Subsequent investigation also revealed that Trooper Parks fired the shot that

wounded and ultimately killed Amber Fagre. Id. ¶ 96. It is that gunshot that is now at

issue.

DISCUSSION

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). As cautioned by the Supreme Court, “the mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A material fact is

one that has the potential to determine the outcome of the litigation. Id. at 248; Oahn

Nguyen Chung v. StudentCity.com, Inc., 854 F.3d 97, 101 (1st Cir. 2017). To raise a

genuine issue of material fact, the party opposing the summary judgment motion must

demonstrate that the record contains evidence that would permit the finder of fact to resolve

the material issues in his favor. See Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d

1, 2 (1st Cir. 1999) (“Unless the party opposing a motion for summary judgment can

identify a genuine issue as to a material fact, the motion may end the case.”).

Excessive use of force by law enforcement strikes at the heart of the people’s right

to be “secure in their persons…against unreasonable searches and seizures.” U.S. Const.

Amend. IV. In Count One, the Plaintiff asserts a claim under 42 U.S.C. § 1983, alleging

that Trooper Parks used excessive force against Amber Fagre in violation of this Fourth

Amendment right: she argues that when Trooper Parks mistakenly shot Ms. Fagre with one

of the six or seven bullets he fired at the driver of the oncoming Durango, he unlawfully

“seized” her in violation of the Fourth Amendment. Trooper Parks’ Motion for Summary

Judgment makes two arguments against liability under Count One. First, he argues that he

did not “seize” Amber Fagre at all, and is therefore not subject to suit under § 1983.

Second, he argues that even if he did violate Ms. Fagre’s Fourth Amendment rights by

unconstitutionally “seizing” her, he is entitled to qualified immunity from suit.

The Plaintiff also brings state law claims against Trooper Parks. Count Two of her

Complaint alleges Trooper Parks violated the Maine Civil Rights Act (“MCRA”), 5 M.R.S.

§ 4682, and Count Four claims Trooper Parks acted negligently in violation of Maine state

law. Trooper Parks, meanwhile, argues he is immune from Count Two for the same reasons

he is immune from Count One, and that he is immune from Count Four under the Maine

Tort Claims Act, 14 M.R.S. § 8111(1) & (1)(C). I consider these arguments in turn.

A. FOURTH AMENDMENT SEIZURE

Trooper Parks first argues that he is entitled to summary judgment on Plaintiff’s

§ 1983 claim because he did not violate Amber Fagre’s constitutional rights at all.1 To

state a claim under § 1983 for excessive use of force in violation of the Fourth Amendment,

a plaintiff must demonstrate that a “seizure” occurred, and that the seizure was

“unreasonable.” Brower v. Cty. of Inyo, 489 U.S. 593, 599 (1989). The Supreme Court

has yet to lay down a bright-line rule in a situation like this one, where a law enforcement

officer unintentionally shoots a vehicle’s passenger when aiming for its driver. See

Plumhoff v. Rickard, 572 U.S. 765, 778, n.4 (2014) (noting “some disagreement among

lower courts as to whether a passenger in [Amber Fagre]’s situation can recover under a

Fourth Amendment theory,” but “express[ing] no view on this question”).

This disagreement grows out of conflicting lines of Fourth Amendment case law.

On one hand, the Supreme Court has held that the police officer must intentionally enact

the seizure to violate an individual’s Fourth Amendment rights. Brower, 489 U.S. at 597.

1 I tackle this question first, rather than simply resolving this case on the grounds of qualified immunity, in

line with the Supreme Court’s guidance in Pearson v. Callahan. 555 U.S. 223, 231 (2009) (noting that

doing so “promotes the development of constitutional precedent and is especially valuable with respect to

questions that do not frequently arise in cases in which a qualified immunity defense is unavailable”); see

also Plumhoff, 572 U.S. at 774 (suggesting beginning with the threshold constitutional question because it

is “beneficial in develop[ing] constitutional precedent in an area that courts typically consider in cases in

So, for example, in the context of a passenger who died in a vehicle stopped by a police

roadblock:

[A] Fourth Amendment seizure does not occur whenever there is a

governmentally caused termination of an individual's freedom of

movement…, nor even whenever there is a governmentally caused and

governmentally desired termination of an individual’s freedom of

movement…, but only when there is a governmental termination of freedom

of movement through means intentionally applied.

Id. (emphasis in original). The First Circuit has applied this logic to the context of a police

officer firing into the car of a fleeing suspect, reasoning that “[a] police officer’s deliberate

decision to shoot at a car containing a robber and a hostage for the purpose of stopping the

robber’s flight does not result in the sort of willful detention of the hostage that the Fourth

Amendment was designed to govern.” Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795

(1st Cir. 1990). That is to say, if the police officer fires at the driver—but hits the

passenger—the officer does not enact a Fourth Amendment “seizure” of the passenger.

On the other hand, sister circuits have suggested that more recent Supreme Court

decisions call into question Landol-Rivera’s application of the Brower rule to an

unintended gunshot victim. For example, in Brendlin v. California, the Supreme Court

held that in intentionally stopping a vehicle, an officer subjects not only the driver, but also

the vehicle’s passengers to a Fourth Amendment seizure. 551 U.S. 249, 254-56 (2007).

The Court also made clear that an officer’s knowledge of a passenger’s presence in the

vehicle is not dispositive because “an unintended person may be the object of the detention,

so long as the detention is willful and not merely the consequence of an unknowing act.”

Id. at 254 (alterations and internal quotation marks omitted). In light of the Supreme Court

rule in Brendlin, Plaintiff suggests Landol-Rivera “is no longer good law.” Pl.’s Resp at

14. Plaintiff argues this Court should follow the Third Circuit instead, which has suggested

that pre-Brendlin decisions are outdated, and that a Fourth Amendment seizure has

occurred when passengers are unintentionally shot by police during a pursuit. See

Davenport v. Borough of Homestead, 870 F.3d 273, 279 (3d Cir. 2017) (noting that

“because [the passenger’s] freedom of movement was terminated by the very

instrumentality set in motion or put in place in order to achieve [the driver]’s and [the

passenger’s] detention…there is no set of facts that precludes a finding of a Fourth

Amendment seizure”) (internal quotations and citation omitted).

Notwithstanding Plaintiff’s argument, First Circuit precedent controls the outcome

of this case. Even after Brendlin, this Circuit has continued to cite Landol-Rivera with

approval for the proposition that “[i]t is intervention directed at a specific individual that

furnishes the basis for a Fourth Amendment claim.” Stamps v. Town of Framingham, 813

F.3d 27, 37 (1st Cir. 2016) (citing Landol-Rivera, 906 F.2d at 796). In Landol-Rivera the

court held a police officer’s bullet intended for a fleeing driver—but which mistakenly hit

the passenger—did not give rise to a Fourth Amendment claim under § 1983. 906 F.2d at

796. And here, as in Landol-Rivera, there is no basis for the plaintiff’s Fourth Amendment

claim. Plaintiff in this case alleges that Defendant Parks violated the decedent-passenger’s

Fourth Amendment rights by accidently shooting her while firing his gun at someone

else—the armed and dangerous driver of a vehicle. DSUMF ¶¶ 70-79, 81. The parties

agree that “Trooper Parks aimed all of his shots at the driver,” not at Amber Fagre.

DSUMF ¶ 80; Pl.’s Resp to DSUMF ¶ 80. Therefore, in line with Landol-Rivera, I find

Trooper Parks did not “seize” Amber Fagre when she was shot inadvertently during his

attempts to stop the driver of the oncoming Durango, Mr. Bailey.

Not only does First Circuit precedent control the outcome of this case, but I pause

here to underscore that Brendlin does not change the analysis of Landol-Rivera. The

Supreme Court’s rule in Brendlin applies specifically to the context of a traditional traffic

stop, where an officer intentionally seizes a vehicle through some show of force, and by

extension both its driver and all its passengers. Id. at 255-56. Landol-Rivera, however,

deals with a police shooting, and whether that officer intended to fire at the victim. 906

F.2d at 794. In Brendlin, the officer uses “means intentionally applied”—sirens,

roadblocks, etc.—to “terminat[e] freedom of movement” of a vehicle, and these means are

directed to everyone inside the vehicle. In Landol-Rivera, by contrast, the officer did not

intend to assert any physical control over the passenger. It was uncontroverted in that case,

as here, that the officer was shooting at someone else, and struck the plaintiff instead. The

Supreme Court’s recognition in Brendlin that traffic stops “intentionally” seize all

occupants of a vehicle does not mean an officer’s gunshot “intentionally” seizes a victim

he or she does not aim at in the first place.

Because Trooper Parks did not intend to fire at Amber Fagre, he did not “seize” her,

and thus did not violate her rights under the Fourth Amendment as articulated by the

Supreme Court and the First Circuit. For this reason, I find he is entitled to judgment as a

matter of law on Count One, and that the Plaintiff cannot make out a claim of excessive

force under § 1983.

B. QUALIFIED IMMUNITY

Even assuming Trooper Parks “seized” Amber Fagre on February 10, 2017, I find

that Trooper Parks would be entitled to qualified immunity from § 1983 liability. “The

doctrine of qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). “[Q]ualified immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” MacDonald v. Town of Eastham,

745 F.3d 8, 11 (1st Cir. 2014) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

The test for determining qualified immunity at the summary judgment stage has two

parts. First, I consider whether “the facts, taken most favorably to the party opposing

summary judgment, make out a constitutional violation.” Ford v. Bender, 768 F.3d 15, 23

(1st Cir. 2014). Second, the court considers “whether the violated right was clearly

established at the time that the offending conduct occurred.” Id. The Court has discretion

as to which prong of the analysis to consider first. Conlogue v. Hamilton, 906 F.3d 150,

155 (1st Cir. 2018).

I begin with the second prong, which the First Circuit has split into two parts. First,

a 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.

McKenney v. Mangino, 873 F.3d 75, 81 (1st Cir. 2017). Second, a plaintiff must show that

“an objectively reasonable official in the defendant's position would have known that his

conduct violated that rule of law.” 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”).

As is often the case in the qualified immunity context, how a court defines the

“right” at issue goes a long way toward deciding whether it was “clearly established” at

the time of the alleged violation. As discussed in more detail above, whether unintentional

crossfire directed at a driver but instead hitting a passenger qualifies as a “seizure” was far

from “clearly established” on February 10, 2017. As recently as 2014 the Supreme Court

noted “some disagreement among lower courts” as to whether a passenger in Ms. Fagre’s

situation could recover under a Fourth Amendment theory. Plumhoff, 572 U.S. 765, 778,

n.4 (collecting cases on both sides); see also Davenport 870 F.3d at 279 (noting, in August

of 2017, the conflict between Fourth, Fifth, Sixth, and Eleventh Circuits and the First and

Tenth Circuits on the question).

In light of this contradictory case law, Plaintiff has failed to carry her burden to

show such a right was “clearly established” on February 10, 2017. Conflict between

Circuits over whether an officer’s unintentional shooting of a passenger in a fleeing vehicle

violates the Fourth Amendment is far from the kind of “controlling authority or a consensus

of persuasive authority sufficient to put an officer on notice that his conduct fell short of

the constitutional norm.” Conlogue, 906 F.3d at 155 (1st Cir. 2018). And because the

existence of the right is murky, Plaintiff cannot show that “an objectively reasonable officer

would know that his conduct violated [Amber Fagre’s Fourth Amendment rights].” Id. In

all, I find that the conflicting lines of case law, and the First Circuit’s continued reliance

on the rule announced in Landol-Rivera insulate Trooper Parks from liability under a

qualified immunity analysis. Even if he violated Ms. Fagre’s Fourth Amendment rights, I

find he is entitled to judgment as a matter of law on Count One on qualified immunity

grounds as well.

C. STATE LAW CLAIMS.

Plaintiff also asserts state-law claims pursuant to the Maine Civil Rights Act

(“MCRA”), 5 M.R.S. § 4682, and for negligence under Maine common law. Article 1, §

5 of the Maine Constitution, the provision upon which Plaintiff relies for her MCRA claim,

“provides protections that are coextensive with the Fourth Amendment.” State v. Martin,

120 A.3d 113, 118, n.2 (Me. 2015). Because Trooper Parks is entitled to qualified

immunity from Plaintiff’s § 1983 Fourth Amendment claim, he is likewise immune from

the MCRA claim. See Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (“The disposition

of a 42 U.S.C. § 1983 claim also controls a claim under the MCRA.”); see also Jackson v.

Town of Waldoboro, 751 F. Supp. 2d 263, 275 (D. Me. 2010) (same).

Plaintiff also brings a negligence claim against Trooper Parks, which fails for

similar reasons. As Defendant Parks’ Motion points out, under the Maine Tort Claims Act,

a governmental employee is entitled to immunity when performing a “discretionary

function or duty” so long as the act is “reasonably encompassed by the duties of the

governmental employee in question.” 14 M.R.S. § 8111(1) & (1)(C). “A law enforcement

official’s use of force is a discretionary act.” Jackson, 751 F. Supp. 2d at 276. An officer

is, therefore, immune from tort liability for a use of force so long as he does not exceed the

scope of his discretion. Richards v. Town of Eliot, 780 A.2d 281, 292 (Me. 2001). The

Law Court has held that a use of force that is “objectively reasonable” under the federal

standard meets this requirement. Id. And the First Circuit has echoed that if “officers’

conduct was reasonable under the circumstances, that conduct cannot be said to be so

egregious as to deprive the officers of the immunity defense, and they are entitled to

summary judgment on the MTCA claim as well.” Berube, 506 F.3d at 86.

To establish a Fourth Amendment violation, a plaintiff must show that the “level of

force was objectively unreasonable under the circumstances.” Fernandez-Salicrup v.

Figueroa-Sancha, 790 F.3d 312, 326 (1st Cir. 2015). This reasonableness calculus

considers the officer’s actions in light of the “totality of circumstances.” Graham v.

Connor, 490 U.S. 386, 397 (1989). In deadly force cases, the primary inquiry is whether

“a suspect poses an immediate threat to police officers or civilians.” Conlogue, 906 F.3d

at 156. Other relevant factors include “the severity of the crime at issue” and whether the

suspect is “actively resisting arrest or attempting to evade arrest by flight.” Graham, 490

U.S. at 396.

On Arnold Road on February 10, 2017 there was both an immediate threat to

Trooper Parks, and a suspect who was resisting arrest and attempting to evade law

enforcement. To begin with, Mr. Bailey drove the Durango at top speed directly at Trooper

Parks’ police cruiser, collided with the cruiser, and sent it backward down the road roughly

50 feet, narrowly missing Trooper Parks. See McGrath v. Tavares, 757 F.3d 20, 28 (1st

Cir. 2014) (recognizing that a car can be a deadly weapon); DSUMF ¶¶ 82, 87. Mr. Bailey

had also just been in a gunfight with Chief Brown, and Trooper Parks was aware the suspect

was armed and dangerous. DSUMF ¶¶ 29, 52, 62, 101. A reasonable officer in Trooper

Parks’ position could have feared that Mr. Bailey would shoot him either from inside the

approaching Durango or in a confrontation following the collision. In addition, there were

more than a dozen homes nearby, both through the woods on Fairway Drive and along the

shore of Webber Pond. DSUMF ¶¶ 13–14. Mr. Bailey had just finished breaking into one

of these homes and assaulting the occupant; a reasonable officer in Trooper Parks’ shoes

also has an obligation to protect other potential victims nearby. DSUMF ¶¶ 24, 41.

Despite the fact Trooper Parks knew of Mr. Bailey’s armed burglary, the gunfight

with Chief Brown, and faced the runaway Durango, Plaintiff argues that “Trooper Parks

fired shots into the Durango at a time when there was no imminent threat to Trooper [sic]

or anyone else.” Pl.’s Resp. at 10. But the record does not support Plaintiff’s claim. Two

controlling authorities with notably similar facts confirm that Trooper Parks’ use of deadly

force was well clear of reasonable. First, in Plumhoff v. Rickard, the victim led police on

a high-speed chase, ending it by crashing into a police cruiser. 572 U.S. at 769. As the

plaintiff-victim began maneuvering his vehicle to flee the scene, Police fired several shots

into the vehicle as it came to a “near standstill,” and several more after it returned to the

road. Id. at 770. The Supreme Court held that the officers’ conduct in firing 15 shots at

the vehicle was reasonable, noting that the high-speed pursuit posed a “grave public safety

risk,” and that because the plaintiff “was intent on resuming his flight and that, if he was

allowed to do so, he would once again pose a deadly threat for others on the road.” Id. at

777.

First Circuit precedent also confirms the reasonableness of Trooper Parks’ actions.

In McGrath v. Tavares, for example, an officer used deadly force against a burglary suspect

who had led officers on a high-speed chase and then crashed into a stone wall. 757 F.3d

20, 24 (1st Cir. 2014). After crashing into one of the cruisers, the victim drove toward the

officers, prompting one of the officers to fire. Id. Noting that the officer’s “choices were

to shoot or risk being run over” and that the suspect would continue to pose a threat to the

public if he escaped, the First Circuit concluded that deadly force was reasonable. Id. at

28–29.

So too here. By the time he was speeding toward Trooper Parks’ cruiser, Mr. Bailey

had committed armed robbery, fired shots at Chief Brown, and driven his Durango down

Arnold Road at ramming speed. If anything, Mr. Bailey posed an even greater public safety

risk than the drivers in Plumhoff and McGrath. Moreover, as in Plumhoff and McGrath,

the threat had not ended by the time Trooper Parks finished firing his shots. Trooper Parks

fired his 6 to 7 shots while the Durango was still in motion and before it had passed him.

DSUMF ¶¶ 79, 85. And, like the defendant in McGrath, Trooper Parks’ options as the

Durango sped toward him were “to shoot or risk being run over.” 757 F.3d at 28. This

situation was made all the more dangerous because Mr. Bailey was armed and had already

shown a willingness to fire shots at police officers. In all, Trooper Parks’ use of force was

at least as reasonable as the uses of force in Plumhoff and McGrath, if not more so.

For the reasons set forth above I find Trooper Parks’ decision to use deadly force

was well within the main of “objectively reasonable” as defined by the Supreme Court and

the First Circuit. He is therefore immune from Plaintiff’s negligence claim, and I grant

him judgment as a matter of law on Count Four.

CONCLUSION

For the foregoing reasons, Defendant Jeffrey Parks’ Motion for Summary Judgment

is GRANTED, and this case is DISMISSED.

SO ORDERED.

Dated this 5th day of March, 2020.

/s/ Lance E. Walker

UNITED STATES DISTRICT JUDGE