Napier v. Town of Windham

United States Court of Appeals

For the First Circuit

No. 98-2235

PHILLIP NAPIER,

Plaintiff, Appellant,

v.

TOWN OF WINDHAM, RICHARD LEWSEN,

RICHARD RAMSDELL, AND RONALD RAMSDELL,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Stuart W. Tisdale, Jr., with whom Mary A. Davis and Tisdale &

Davis, P.A. were on brief, for appellant.

William R. Fisher, with whom William R. Fisher, P.A. was on

brief, for appellee.

August 6, 1999

TORRUELLA, Chief Judge. Plaintiff-appellant Phillip

Napier was shot by defendant-appellee Ronald Ramsdell ("Ronald") of

the Windham Police Department during a response call at Napier's

home by Ronald and his brother, defendant-appellee Richard Ramsdell

("Richard"). Napier brought suit against the Ramsdells, the Town

of Windham, Maine ("the Town"), and Chief of Police Richard Lewsen,

alleging state and federal civil rights claims and state law claims

for assault, battery, and negligence. The district court adopted

the magistrate's recommendation of summary judgment in favor of all

defendants on all claims, and Napier appeals. We affirm in part

and reverse in part.

BACKGROUND

On April 19, 1995, Phillip Napier was at his home, a

converted hunting camp on the shores of Highland Lake in Windham,

Maine. At approximately 6:00 p.m., Napier fired a rifle several

times from his porch into a woodpile about fifteen feet away. A

neighbor shouted to Napier and asked what was happening, to which

Napier responded that he was getting rid of some old ammunition.

The neighbor walked back inside his own house, and Napier continued

to shoot into the woodpile. Meanwhile, the Windham Police

Department received at least one telephone call from Napier's

neighbors, complaining that Napier was firing a weapon from his

home. Officer Richard Ramsdell responded to the complaint by

driving to Napier's house. While driving, he radioed his brother,

Sergeant Ronald Ramsdell, and asked for backup assistance. The

police dispatcher told both officers that Napier was "possibly

1044," the code for "mentally disturbed." Richard arrived first at

Napier's house and parked his car partially in Napier's driveway.

This is where the parties' versions of the events

diverge. Defendants claim that Richard cautiously approached

Napier's home with his sidearm holstered and determined that Napier

was not outside the house. Richard then waited for Ronald to

arrive, at which time Richard walked toward the open front door

with his hand on his still-holstered sidearm. Richard yelled, at

least twice, "Police department, Phil, are you here?" Richard

claims that he looked inside Napier's home and saw a rifle lying on

a table and a hand holding a weapon extending out of a doorway

inside the house. Richard then repeatedly shouted, "Police, drop

the gun," but Napier did not do so. Instead, Napier walked toward

Richard with his gun at his hip, pointed at Richard. Concerned for

his safety, Richard jumped over a woodpile on the porch and

continued to instruct Napier to drop the gun. Napier then stepped

into the doorway, still holding the gun. From the driveway, Ronald

saw Napier enter the doorway with a gun, so Ronald also shouted,

"Police, drop the gun." Defendants claim that Napier leaned over

the woodpile and pointed his gun at Richard, inducing Richard to

run around the corner of Napier's house and to fire a shot at

Napier while he ran. Ronald claims that when Napier raised his

weapon toward Richard, Ronald fired a burst of three rounds at

Napier. Ronald asserts that Napier then turned toward him with his

gun still raised, so Ronald fired three more rounds at him. Napier

was struck by one or more of the bullets and fell onto a bed just

inside his front door. The Ramsdells then subdued Napier and

placed him under arrest.

Napier disputes this version. According to Napier,

Richard attempted to conceal his presence by parking only partially

in Napier's driveway and by skirting the house so as not to be

detected. Napier claims that Richard did not announce his presence

and carefully crept towards the front door with his gun drawn.

Napier claims that he stepped out of a sideroom in his house,

carrying a .22 revolver in his right hand, pointed downward.

Napier then saw Richard standing in his doorway, pointing his gun

at Napier. Napier says that he did not point his gun at Richard,

but that he did step backwards and lose his balance. Panicking,

Richard then jumped over or through a woodpile on the porch and

fired a bullet at Napier, even though Napier did not raise his gun

or fire a shot. The bullet missed, but Napier immediately came

under fire from Ronald Ramsdell, who was standing in the driveway.

Ronald fired two bursts of three bullets at Napier, who was hit by

shots from the second burst. Napier fell onto a bed just inside

the door of his house and pleaded with the officers not to shoot

him again. The officers handcuffed Napier and asked him why he

shot at them. Napier, falling in and out of consciousness, heard

one of the Ramsdells say to the other, "Don't let anyone in."

These disputed accounts first hit the courtroom in

Napier's criminal trial. Napier was indicted on five charges

arising out of the incident: (1) recklessly creating a substantial

risk of serious bodily injury to Richard with a dangerous weapon;

(2) intentionally or knowingly placing Richard in fear of imminent

bodily injury with a dangerous weapon; (3) discharging a firearm

within 100 yards of a dwelling; (4) intentionally or knowingly

placing Ronald in fear of imminent bodily injury with a dangerous

weapon; and (5) recklessly creating a substantial risk of serious

bodily injury to Ronald with a dangerous weapon. Following a jury

trial, Napier was convicted of discharging a firearm near a

dwelling and of criminal threatening and reckless conduct with

regard to Richard Ramsdell, but he was acquitted of the criminal

threatening and reckless conduct charges with regard to Ronald

Ramsdell. Napier's appeal of his convictions was denied. See

State v. Napier, 704 A.2d 869 (Me. 1998).

On April 19, 1997, Napier filed the present action,

alleging six causes of action against Lewsen, the Ramsdells, and

the Town. In Count I, Napier claimed under 42 U.S.C. 1983 that

the Ramsdells used excessive force against him in violation of his

Fourth Amendment rights. In Counts II and III, Napier alleged that

the Town and Chief Lewsen, respectively, were also liable under

1983 because they failed to properly train and supervise the

Ramsdells in the use of deadly force. Count IV alleged that Lewsen

and the Ramsdells were liable for Napier's injuries under the state

law theories of assault, battery, and negligence. Count V alleged

that the Town was vicariously liable for the negligence of Lewsen

and the Ramsdells. Finally, Count VI alleged that all defendants

were liable under Maine civil rights law "on the same basis that

all defendants [we]re liable under . . . 1983."

Proceedings in this action were stayed until the

resolution of Napier's criminal appeal on January 8, 1998.

Following discovery, all defendants moved for summary judgment. On

August 19, 1998, Magistrate Judge David M. Cohen issued a

recommended decision on defendants' motion, recommending the entry

of summary judgment in favor of all defendants on all counts. On

September 8, 1998, Napier filed his objections to the recommended

decision and a memorandum of law opposing summary judgment. In a

two-page order issued on October 1, 1998, Chief District Judge

D. Brock Hornby adopted the recommended decision and granted

defendants' motion for summary judgment in its entirety. Judgment

entered the following day, and Napier filed a timely notice of

appeal.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is proper where "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c). Once the

moving party has pointed to the absence of adequate evidence

supporting the nonmoving party's case, the onus is on the nonmoving

party to present facts that show a genuine issue for trial. See

Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir.

1997); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841-42 (1st

Cir. 1993), cert. denied, 511 U.S. 1018 (1994). "[A] party

opposing a properly supported motion for summary judgment may not

rest upon mere allegation or denials of his pleading, but must set

forth specific facts showing that there is a genuine issue for

trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986)(citing Fed. R. Civ. P. 56(e)). "[P]laintiff . . . [must]

offer[] . . . 'significant probative evidence tending to support

the complaint.'" Id. at 256 (quoting from First National Bank of

Arizona v. Cities Service Co., 391 U.S. 253, 290 (1968)). We

review the district court's grant of summary judgment de novo. See

Serrano-Cruz, 109 F.3d at 25.

II. Claims Under 42 U.S.C. 1983

The magistrate recommended the entry of summary judgment

in favor of all defendants on Napier's 1983 claims. The

magistrate recommended summary judgment in favor of the Ramsdells

based on a determination that a jury could not find that their

conduct was so deficient that no reasonable officer could have made

the same choices under the circumstances. The magistrate

recommended summary judgment in favor of appellee Lewsen on

alternative bases. First, the magistrate found that the lack of a

constitutional violation on the part of the Ramsdells precluded any

claim for supervisory liability against Lewsen. Second, the

magistrate also found that Napier offered no evidence: (1) that

Lewsen was put on notice of Fourth Amendment violations prior to

the incident involving Napier, or (2) that any act or omission by

Lewsen led to the shooting of Napier. Finally, the magistrate

recommended the entry of summary judgment in favor of the Town

because no constitutional rights were violated by municipal

employees. Each recommendation was accepted by the district court.

Napier appeals the judgment disposing of all claims

against all parties, but his arguments with respect to the 1983

claims challenge only the magistrate's determinations concerning

the Ramsdells. Therefore, the fate of Napier's appeal of the entry

of judgment in favor of Lewsen and the Town on the 1983 claims

rests solely on the fortunes of his arguments concerning the

Ramsdells. We turn to those arguments.

A. Basis For the Magistrate's Recommended Decision

We begin by noting that it is difficult to ascertain from

reading the recommended decision whether the magistrate recommended

summary judgment in favor of the Ramsdells on the 1983 claims on

the basis of qualified immunity or upon a determination that no

jury could find a constitutional deprivation. Appellants raised

both arguments in their motion for summary judgment. The

magistrate recommended summary judgment because he found that no

jury could find the officers' conduct to be "objectively

unreasonable." Unfortunately for clarity's sake, the "objective

reasonableness" of the officers' conduct is crucial to both the

qualified immunity and substantive liability inquiries. The Fourth

Amendment inquiry in excessive force cases asks whether the

officers' actions are "objectively reasonable" in light of the

facts and circumstances confronting them. See Graham v. Connor,

490 U.S. 386, 397 (1989). There are two prongs to the qualified

immunity analysis. The first prong is whether the constitutional

right in question was clearly established at the time of the

alleged violation. See Swain v. Spinney, 117 F.3d 1, 9 (1st Cir.

1997). In the second prong, the court employs an "objective

reasonableness" test in determining whether a reasonable, similarly

situated official would understand that the challenged conduct

violated the established right. See id. Phrased another way,

police officers are entitled to qualified immunity if reasonably

well-trained officers confronted with similar circumstances could

reasonably believe their actions were lawful under clearly

established law. See Anderson v. Creighton, 483 U.S. 635, 641

(1987).

As a result of these similar inquiries, the magistrate's

determination that no jury could find that the Ramsdells' conduct

was objectively unreasonable could have been a grant of summary

judgment on either qualified immunity or substantive Fourth

Amendment grounds. The parties treat the decision as if it was an

entry of judgment on alternative bases, so we will also treat it as

such. In any event, because what is disputed here is the

determination that no jury could find the Ramsdells' conduct to be

objectively unreasonable, and not the legal consequences that flow

from such a determination, we need not dissect the magistrate's

grounds for decision any further. We need only determine whether

a genuine issue exists that should have precluded the magistrate

from making this determination. B. Correctness of the Standard Applied By the Magistrate

We next address Napier's claim that the district court

applied an incorrect standard in granting summary judgment in favor

of the Ramsdells on the 1983 claim. As identified by Napier, the

district court stated that the "relevant inquiry here is whether no

reasonable officer could have made the same choice under the

circumstances." Napier argues that the standard the court should

have applied is whether a jury could find that the Ramsdells'

conduct was objectively unreasonable. Napier argues that the

district court erroneously required him to fully prove, in order to

survive the summary judgment stage, that no reasonable police

officer could have done what the Ramsdells did.

In Roy v. Inhabitants of the City of Lewiston, 42 F.3d

691, 694 (1st Cir. 1994), we outlined the constitutional standard

for evaluating 1983 causes of action based upon the use of deadly

force. We noted the Supreme Court's instruction in Graham, 490

U.S. at 397, that the constitutionality of the use of deadly force

incident to arrest depends solely on whether the officer's conduct

was "objectively reasonable." See Roy, 42 F.3d at 694. We also

recited the qualified immunity test for 1983 actions as shielding

a "reasonable officer" judged by an objective standard. See id.

(citing Anderson, 483 U.S. at 641). We stated that, although

substantive liability and qualified immunity are two separate

questions, the Supreme Court employs the same "objective

reasonableness" standard for each inquiry. See id. at 695. We

then applied that "objective reasonableness" standard in

determining whether the summary judgment entered in favor of the

officer in Roy was appropriate. We found that summary judgment was

proper because "in our view a jury could not find that [the

defendant's] conduct was so deficient that no reasonable officer

could have made the same choice." Id.

Citing Roy, the magistrate here held that "a jury could

not find that Richard's conduct was so deficient that no reasonable

officer could have made the same choice under the circumstances."

This is identical to the standard applied in Roy. Turning to the

claim against Ronald Ramsdell, the magistrate stated that the

relevant inquiry is "whether Ronald's conduct was so deficient that

no reasonable officer could have made the same choice under the

circumstances." The magistrate then found that the Roy standard

was met because "[a] reasonable officer could have made the same

choice under the circumstances." The magistrate did not explicitly

state that he was continuing to inquire whether a jury could make

that determination, as opposed to simply making the factual

determination himself, but it seems clear from the context that the

magistrate correctly applied the summary judgment standard. The

magistrate's determination that "[a] reasonable officer could have

made the same choice under the circumstances" is the equivalent of

making Roy's finding that a jury could not find that no reasonable

officer could have made the same choice under the circumstances.

The magistrate merely replaced the inartful phrasing of the

standard applied in Roy with an equivalent standard that omitted

the double negative.

Napier cites no authority to counter Roy, but complains

that if he is required to prove that no reasonable police officer

could have made the choices made by the Ramsdells, then he is

forced to fully prove the Ramsdells' liability in order to avoid

summary judgment. We disagree. Napier need not fully prove

liability in order to avoid summary judgment under the standard

applied by the magistrate; he need only demonstrate that a

reasonable jury could later find that he has proven liability.

Identifying those plaintiffs who cannot so demonstrate is one of

the purposes of summary judgment. See Conward v. Cambridge School

Committee, 171 F.3d 12, 18 (1st Cir. 1999) ("[The summary judgment]

rule acts as a firewall to contain the blaze of cases that are so

lacking in either factual foundation or legal merit that trial

would be a useless exercise."). Therefore, without commenting yet

on the correctness of the magistrate's determinations, we find that

the magistrate employed the correct standard in making them.

C. Objective Reasonableness of the Ramsdells' Conduct

Napier argues that material factual disputes exist that

should have prevented the magistrate from determining that a jury

could not find that the Ramsdells' conduct was so deficient that no

reasonable officer could have made the same choices under the

circumstances.

1. Richard Ramsdell's Conduct

With regard to Richard Ramsdell's conduct, the magistrate

found that two facts -- both of which were conclusively established

by Napier's criminal convictions -- led to the conclusion that

Richard's actions were objectively reasonable. It is "beyond

doubt" that issue preclusion applies to a federal civil rights

action following a criminal conviction in state court. See Allen

v. McCurry, 449 U.S. 90, 102 (1980); Glantz v. United States, 837

F.2d 23, 25 (1st Cir. 1988). Because federal courts must give

preclusive effect to judgments in state court whenever the courts

of the particular state would do so, see Allen, 449 U.S. at 415-16,

we examine Maine's collateral estoppel rules in this context. In

Maine, a prior criminal conviction "conclusively establishes all

facts essential to the final judgment of conviction." Hanover Ins.

Co. v. Hayward, 464 A.2d 156, 160 (Me. 1983). The convicted party

is precluded from litigating the issues essential to that

conviction in subsequent civil actions. See Beale v. Chisolm, 626

A.2d 345, 347 (Me. 1993).

The magistrate correctly found two facts to have been

established in the criminal action against Napier: (1) that Napier

placed Richard in fear of imminent bodily injury with a dangerous

weapon, and (2) that Napier recklessly created a substantial risk

of serious bodily injury to Richard with a dangerous weapon. These

facts were essential to Napier's criminal convictions for criminal

threatening with a dangerous weapon and reckless conduct with a

dangerous weapon, see 17-A M.R.S.A. 209(1) & 211(1), and are

therefore established for purposes of Napier's civil rights suit.

In light of these established facts, we agree with the magistrate

that a jury could not find that Richard's conduct -- firing a

single shot at Napier while attempting to find cover -- was so

deficient that no reasonable officer could have made the same

choice under the circumstances. See Roy, 42 F.3d at 695 (affirming

summary judgment in favor of officers who used deadly force on a

suspect who threatened them with knives, because no jury could find

the officers' conduct to be objectively unreasonable).

2. Ronald Ramsdell's First Burst of Bullets

Ronald Ramsdell's conduct, however, requires closer

scrutiny because Napier was acquitted of threatening Ronald and of

placing him at risk of serious bodily injury. It is undisputed

that Ronald fired two bursts of three bullets each at Napier, and

the magistrate analyzed each burst separately. As noted by the

magistrate, Ronald testified at Napier's criminal trial that he

fired the first three rounds because he thought Napier was going to

shoot Richard and that he fired the second three rounds because he

thought Napier was going to shoot him.

The magistrate recommended summary judgment with regard

to the first burst because he found that a reasonable officer could

have made the same choice under the circumstances of witnessing

Napier's creation of a substantial risk of serious bodily injury to

Richard. Due to the collateral estoppel effect of his criminal

conviction, Napier cannot create a genuine issue regarding whether

he actually created a substantial risk of serious bodily injury to

Richard. What Napier can and does argue on appeal is that there is

a genuine issue of material fact regarding whether Ronald knew of

or was able to witness that creation of risk.

Napier now claims that Ronald could not see Napier inside

the house. However, Napier did not present this argument or any

evidence supporting it to the magistrate, so it was not part of the

summary judgment record. This alone adequately supports the

magistrate's determination. In any event, it would not matter if

Napier had claimed that Ronald could not have seen Napier inside

the house because Ronald did not claim to have been able to do so.

To the contrary, Ronald specifically testified that he could not

see Napier when Napier was inside. All parties agree that, when

Richard jumped behind the woodpile, Napier came to the open doorway

of the house. Whether Ronald could see into the house from his

position in the driveway is irrelevant, because Napier came out to

the open doorway, where he could be seen -- and shot -- by Ronald.

Napier does not dispute that Ronald: (1) knew that Napier was

possibly mentally disturbed; (2) knew that Richard had quickly

retreated from Napier by jumping over the woodpile on the porch;

and (3) saw Napier in the open doorway holding a gun.

Consequently, Napier has not created a genuine issue as to whether

Ronald knew that Napier placed Richard at a substantial risk of

serious bodily injury. Rather, it has been conclusively

established that Napier threatened Richard and placed him at risk

of serious bodily injury, and it is undisputed that Ronald knew of

those facts at the time he fired the first burst of bullets at

Napier. Therefore, we do not disturb the magistrate's decision

regarding the first burst of bullets fired by Ronald.

3. Ronald Ramsdell's Second Burst of Bullets

The magistrate found Ronald's second burst to be

objectively reasonable based on his fear that Napier was going to

shoot him when Napier turned to face him after the first burst of

bullets. Because Napier was acquitted of charges of criminal

threatening and reckless conduct toward Ronald, there is no

collateral estoppel with regard to those issues. In making his

determination regarding the reasonableness of the second burst, the

magistrate relied on the "very short period of time involved, the

plaintiff's failure to drop his gun, and the fact that the

plaintiff does not contend that he did not hear Richard's and

Ronald's repeated orders to drop his gun." In light of those three

factors, the magistrate stated that Napier's denial that he raised

his gun when he turned toward Ronald was not determinative.

We would agree with the magistrate's conclusion if the

undisputed record was that Ronald: (1) saw that Napier held a

firearm when Napier turned to face him; (2) ordered Napier to drop

his weapon; and (3) shot Napier when he refused to do so. However,

Napier disputes whether the officers ever identified themselves or

instructed him to drop his weapon. Contrary to the magistrate's

statement, Napier did contend that he did not hear the officers

identify themselves or order Napier to drop his gun. Napier also

points to the testimony of neighbors who heard Napier shouting to

his neighbor before the police arrived but did not hear any later

yelling or shouting from the officers. From this, Napier contends

that a reasonable jury could conclude that no such warnings were

given by the officers.

At oral argument, Napier pointed out that he did argue

below: (1) that neither he nor his neighbors heard the warnings

that the Ramsdells claim to have given, and (2) that a reasonable

jury could conclude that the Ramsdells did not in fact warn Napier

of their presence or command him to drop his gun. However, these

arguments were not made in Napier's brief in opposition to

appellants' motion for summary judgment; rather, they were offered

in the accompanying Statement of Material Facts. The argument

section of Napier's brief was the proper place to outline all of

his arguments in opposition to defendants' motion for summary

judgment, including all of the alleged factual disputes. Nowhere

in Napier's brief did he argue that a factual issue existed

regarding whether the officers gave warnings to Napier before

opening fire. We are reluctant to forgive the omission of an

argument from an opposition brief merely because that argument was

made in an accompanying statement of material facts. Because of

Napier's failure to include this argument in his brief, the

magistrate missed this factual dispute and erroneously stated that

Napier "[did] not contend that he did not hear Richard's and

Ronald's repeated orders to drop his gun."

However, these arguments were expressly outlined in

Napier's Statement of Material Facts, an eleven-page document that

Napier was required to file with his opposition brief. Further,

after the magistrate issued his recommended decision, Napier filed

a statement of objections to that recommended decision. In that

document, Napier specifically identified the factual dispute

between the officers, who testified that they ordered him to drop

his weapon, and Napier, who testified that he heard nothing. The

district court's October 1, 1998 Order affirming the recommended

decision stated that the district court: (1) reviewed the

recommended decision and the entire record, and (2) made a de novo

determination of all matters adjudicated by the recommended

decision. Even though we can understand how the magistrate and

district court could have missed the factual dispute buried in

Napier's Statement of Material Facts, that factual dispute was

reiterated in Napier's objections to the recommended decision.

Finally, Napier's motion for oral argument was denied by the

district court, depriving him of any last opportunity to point out

the magistrate's error and to more prominently bring this dispute

to the attention of the court. For these reasons, we reluctantly

find that the factual dispute regarding whether warnings were given

is part of the summary judgment record.

Nevertheless, we can affirm the district court's entry of

summary judgment in favor of Ronald Ramsdell on any independently

sufficient ground. See Mesnick v. General Electric Co., 950 F.2d

816, 822 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992);

Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860 (1st Cir.

1987). Even absent agreement that the officers warned Napier to

drop his gun, we agree with the magistrate that no reasonable jury

could find Ronald's conduct of firing the second burst of three

bullets to be so deficient that no reasonable officer could have

made the same choice under the circumstances.

The established and undisputed circumstances facing

Ronald at the time he made the decision to fire the second burst

were as follows. The Ramsdells were investigating a complaint that

Napier was firing a weapon from his home and were told that Napier

might be mentally unstable. When Richard approached the house,

Napier threatened him with a gun, recklessly creating a substantial

risk of serious bodily injury to Richard. Richard responded by

jumping behind a woodpile, scrambling around the corner of the

house, and firing a shot at Napier, who continued to hold the gun.

Ronald knew that his brother had leaped behind the woodpile in

retreat, and he saw Napier, still holding his gun, emerge into the

doorway. Fearing for his brother, Ronald fired the first burst of

bullets at Napier, but Napier was not hit. Rather than drop his

gun, Napier then turned toward Ronald. It was at this point that

Ronald fired the contested second burst.

We cannot find that the firing of the second burst was so

deficient that no reasonable officer could have made the same

decision. The facts established at Napier's criminal trial

demonstrate that Ronald was correct in fearing that his brother had

been threatened by a possibly mentally disturbed man with a gun and

was at risk of serious bodily injury. Ronald fired a burst of

three bullets and nothing changed: Napier did not fall to the

ground, drop his gun, or otherwise indicate that the risk no longer

existed. Instead, he turned to face Ronald, causing him to believe

that he was now also placed at risk. All of this occurred within

seconds. We agree that Napier's self-serving claim that he did not

point his gun at Ronald is not determinative. After what had

already occurred, Napier need not have specifically pointed his gun

at Ronald for Ronald to believe that the danger still existed and

now also encompassed him. We must remember that the reasonableness

of an officer's use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20

vision of hindsight. See Graham, 490 U.S. at 396. "The calculus

of reasonableness must embody allowance for the fact that officers

are often forced to make split-second judgments -- in situations

that are tense, uncertain, and rapidly evolving -- about the amount

of force that is necessary in a particular situation." Id. at 396-

97. Therefore, we agree with the magistrate that no reasonable

jury could find that Ronald's conduct of firing the second burst of

three bullets was so deficient that no reasonable officer could

have made the same choice under the circumstances. At the very

least, we find that Ronald could have reasonably believed that the

second burst was justified and lawful due to the threat to his

brother, the ineffectiveness of the first burst at ending that

threat, and the quickly emerging apparent threat to himself.

Therefore, under the standard enunciated in Anderson, Ronald is

entitled to qualified immunity with regard to the second burst,

whether Napier has alleged a viable Fourth Amendment violation or

not. See Anderson, 483 U.S. at 641.

4. Creation of Exigent Circumstances

Napier also argues that even if the officers' conduct was

objectively reasonable given the exigent circumstances, the

officers were the ones to blame for creating those exigent

circumstances. Citing St. Hilaire v. City of Laconia, 71 F.3d 20

(1st Cir. 1995), cert. denied, 518 U.S. 1017 (1996), Napier argues

that the police cannot evoke exigencies of the moment created by

their own unreasonable conduct as justification for inflicting

deadly force that, but for their blunders, would never have been

used. However, St. Hilaire does not stand for that proposition.

In St. Hilaire, we rejected the defendants' argument that the

police officers' actions must be examined for reasonableness only

at the moment of the shooting, opting instead to examine the

officers' actions leading up to the shooting. See id. at 26. We

then stated that the district court's focus on only the moment of

the shooting led it to erroneously define the issue as whether

there was any clearly established constitutional duty on the part

of the police to avoid creating situations which increased the risk

of the use of deadly force. See id. at 27. We specifically

rejected this as the proper inquiry, and we did not pass on the

existence of such a broad duty. See id.

Absent additional authority, we cannot agree that the

Ramsdells' pre-confrontation actions should deprive their later

conduct in response to Napier's actions of its reasonableness.

Even under Napier's version of the events, the officers merely

walked quietly around to the front door of Napier's house with

their guns drawn, pursuant to a departmental procedure for

responding to a shooting complaint. The cautious and covert manner

in which the Ramsdells chose to approach the front of the house

does not change the established fact that, once the officers

encountered Napier, he threatened Richard Ramsdell with his gun and

placed him at risk of serious bodily injury. The fact that the

officers prepared themselves for exactly the behavior that Napier

exhibited does not make their actions any less reasonable.

However, even though the Ramsdells' pre-confrontation

actions do not deprive their later actions of their reasonableness,

the pre-confrontation actions themselves could theoretically serve

as the unreasonable conduct on which a 1983 claim is based. As

noted above, we stated in St. Hilaire that the police officers'

actions leading up to the shooting must be examined for their

reasonableness. See St. Hilaire, 71 F.3d at 26 (citing Brower v.

Inyo, 489 U.S. 593 (1989)). After rejecting the district court's

broad formulation of the inquiry (i.e. whether the duty to avoid

creating situations which increase the risk of the use of violence

was clearly established), we inquired whether the duty to "knock

and announce" in executing a search warrant was clearly

established. See id. at 27. Finding that no such duty was clearly

established at the time of the incident, we held that the officers

were entitled to qualified immunity. See id. at 28.

Although Napier's underlying theory that the armed

officers caused the confrontation by surprising Napier is similar

to the plaintiff's underlying theory in St. Hilaire, see id. at 27,

the question of whether an officer must "knock and announce" before

executing a search warrant is plainly not at issue here. Napier

does not expressly outline the "clearly established" right or

obligation that the Ramsdells allegedly breached with their pre-

confrontation conduct. As noted above, the St. Hilaire court

rejected as "broadly defined" the district court's formulation of

the obligation as the duty "to avoid creating situations which

increased the risk of use of deadly force." Id. To determine

which more narrowly-drawn obligation Napier must be asserting as

"clearly established," we can only analyze Napier's allegations of

actions by the Ramsdells that created the confrontation. The only

"blunder" that Napier identifies on appeal in arguing that the

Ramsdells erred in allowing the situation to develop into a

threatening one was that of sneaking around the house with their

guns drawn, rather than telephoning Napier or contacting him from

a position of cover. Napier cites no authority for the proposition

that, in responding to a complaint of the discharge of a firearm,

the officers have a duty to announce their presence to the shooter

well before they reach the front door of the dwelling. Napier's

assertion that the officers should have "called ahead" may or may

not be a helpful suggestion to law enforcement, but Napier cites no

authority that the Ramsdells had a clearly established duty to do

so. Nor does he cite any authority for the proposition that the

Ramsdells had a duty to refrain from approaching with their guns

drawn in preparation for the potential danger of Napier's weapon

being fired again. Therefore, like the officers in St. Hilaire,

the Ramsdells are entitled to qualified immunity on this theory.

See id. at 28. As a result, Napier's attempt to expand the scope

of the scrutiny of the Ramsdells' actions to include those that

occurred before the confrontation with Napier does not assist him

in avoiding summary judgment.

D. Conclusions Regarding Napier's 1983 Claims

In sum, we agree with the district court that a jury

could not find that the Ramsdells' conduct was so deficient that no

reasonable officer would have made the same choice under the

circumstances. Thus, summary judgment in favor of the Ramsdells on

Napier's 1983 cause of action was appropriate. Because the

grant of summary judgment in favor of Lewsen and the Town was based

upon the decision with respect to the Ramsdells, and because

appellant makes no arguments that specifically address the 1983

claims against Lewsen or the Town, we also affirm the grant of

summary judgment in favor of Lewsen and the Town.

III. State Law Tort Claims

Napier requests that we vacate the entry of judgment in

favor of all defendants on his state law tort claims. Napier

asserted: (1) claims for battery, assault, and negligence against

the individual defendants, and (2) a claim against the Town for its

"vicarious corporate liability" for the negligence of the

individual defendants. The magistrate recommended the entry of

judgment against these state law tort claims because: (1) Napier

failed to respond to the Ramsdells' arguments that they were

entitled to absolute immunity under 14 M.R.S.A. 8111(1); (2) even

if Napier had responded, the Ramsdells would be entitled to

immunity under 8111(1); (3) Lewsen was also entitled to 8111(1)

immunity for his allegedly negligent supervision and training of

the Ramsdells; and (4) the Town could not bear vicarious liability

for tort claims which were no longer viable.

Napier argues on appeal that summary judgment on his

state law tort claims was erroneous because the defendants have

failed to show that the Town has not waived its statutory

immunities and those of its employees by procuring liability

insurance. Under the Maine Tort Claims Act, employees of

governmental entities are absolutely immune from personal civil

liability for: (1) discretionary acts performed within the scope of

their employment, and (2) intentional acts or omissions occurring

in the scope of their employment. See 14 M.R.S.A. 8111(1)(C) &

(E). The Act also provides that towns and other governmental

entities are immune from suit on all tort claims unless immunity is

expressly removed by statute. See 14 M.R.S.A. 8103(1); Hill v.

Lubec, 609 A.2d 699, 700 (Me. 1992). However, if a governmental

entity procures insurance that provides coverage in areas where the

governmental entity is immune under the Act, the entity waives its

immunity, but only to the limits of the insurance coverage. See 14

M.R.S.A. 8116; Moore v. City of Lewiston, 596 A.2d 612, 615-16

(Me. 1991). As governmental immunity is an affirmative defense,

the entity bears the burden of establishing that it had no

insurance coverage for the plaintiff's claims. See King v. Town of

Monmouth, 697 A.2d 837, 840 (Me. 1997).

The district court addressed the waiver issue in its

order affirming the recommended decision. Citing Moore, the

district court observed that 8116 "does not waive immunity for

otherwise immune municipal employees who have insurance; it does

that only as to a government entity." In Moore, the Supreme

Judicial Court of Maine found that summary judgment entered in

favor of the City of Lewiston on a common law tort claim was

inappropriate because the government entity did not produce

evidence to show that it did not possess insurance coverage for the

claim. See Moore, 596 A.2d at 615. The Court found that, under

8116, the City of Lewiston could have waived its statutory

immunities by procuring liability insurance coverage, so summary

judgment on the basis of those immunities, without proof that no

insurance applied, was premature. See id.

The Moore Court went on to hold, however, that 8116 did

not waive the personal liability of the individual police officers,

who were employees of the City. See id. at 616. The Court noted

the difference in the language of 8116 with regard to entities

and their employees:

Section 8116 provides that a governmental

entity "may purchase insurance . . . on behalf

of its employees to insure them against any

personal liability for which a government

entity is obligated to provide defense or

indemnity under 8112." However, unlike the

parallel provision in section 8116 regarding

government entities, which states that "the

governmental entity shall be liable . . . to

the limits of the insurance coverage"

(emphasis added), this provision does not

purport to waive the personal immunity of

insured employees. Thus, regardless of

whether the City's insurance coverage extended

to the defense or indemnity of the police

officers, their personal immunity from

liability could not have been waived.

Id. at 616 (footnote omitted).

The district court here acknowledged that some ambiguity

results from the case cited by Napier, Rippett v. Bemis, 672 A.2d

82, 88-89 (Me. 1996), but the court still relied on Moore's clear

statement distinguishing the entity from the employee. In Rippett,

the Court found a waiver of a sheriff's immunity because the

Sheriff's Department carried insurance. See id. at 89. The

district court here read Rippett as applying the insurance waiver

of entity immunity and not employee immunity for four reasons:

(1) the statutory language is clear in that the waiver applies to

a "governmental entity"; (2) the Moore Court was explicit in

stating that the waiver does not apply to employees; (3) Rippett

does not overrule or even mention Moore; and (4) the Sheriff's

Department in Rippett was in fact a governmental entity as to which

insurance coverage would waive immunity. Therefore, the district

court found that the immunity of Lewsen and the Ramsdells, as

individual employees, could not have been waived by insurance

coverage. From this, the district court found that the Town

escapes liability on Napier's tort claims, not because the Town's

immunity was in place, but because there were no viable claims

against the employees for which the Town could be vicariously

liable.

We express no opinion as to the district court's reading

of Rippett as only applying 8116 to waive the Sheriff's

Department's entity immunity and not the sheriff's employee

immunity. We need not attempt to distinguish Rippett because it is

clear that the Supreme Judicial Court of Maine continues to adhere

to the distinction drawn in Moore between entity immunity, which

may be waived through the procurement of liability insurance, and

employee immunity, which may not. See Grossman v. Richards, 722

A.2d 371, 376 (Me. 1999) ("Section 8116 only affects the liability

of governmental entities, and does not waive the immunity of the

individual insured employees."). Therefore, the district court was

correct in finding that there was no genuine issue as to whether

the individual defendants waived their statutory immunity.

However, while the Moore/Grossman distinction applies

here to entitle the individual employee defendants to summary

judgment on Napier's state law tort claims, the Town is not

similarly entitled. Contrary to the district court's

determination, the immunity enjoyed by Lewsen and the Ramsdells

does not relieve the Town of its vicarious municipal liability.

"'Under the doctrine of respondeat superior, a principal has no

defense based on an agent's immunity from civil liability for an

act committed in the course of employment.'" Berard v. McKinnis,

699 A.2d 1148, 1152 n.9 (Me. 1997) (quoting Restatement (Second) of

Agency 217(b)(ii) (1958)). In Berard, the Supreme Judicial Court

of Maine stated that a waiver of governmental entity immunity under

8116 "would expose [the entity] to liability despite [its

employee]'s personal immunity from liability." Id.

Similarly, in Moore, as described above, the Supreme

Judicial Court found that the individual officers' immunity may not

be waived, but that the City's immunity may be waived. See Moore,

596 A.2d at 615-616. The Court then remanded for further

proceedings on the vicarious liability negligence claim against the

City. See id. at 617. The Court did not affirm the entry of

summary judgment in favor of the City on the vicarious liability

negligence claim simply because the negligence claims against the

officers -- for whom the City was potentially vicariously liable --

failed due to the officers' statutory immunity. The City in Moore

was still potentially vicariously liable for the actions of its

officers, even though those officers enjoyed immunity from suit.

The same is true for the Town here. Therefore, the district court

erred in granting summary judgment in favor of the Town on Napier's

claims of "vicarious corporate liability" for the negligence of the

individual defendants.

CONCLUSION

Based on the foregoing, we: (1) VACATE the entry of

judgment in favor of the Town of Windham with regard to Napier's

claim of "vicarious corporate liability" for the negligence of

Lewsen and the Ramsdells, and (2) AFFIRM the district court's

decision in all other respects. This case is REMANDED to the

district court for further proceedings consistent with this

opinion.