McKenney v. Mangino

United States Court of Appeals

For the First Circuit

No. 17-1378

VICKI McKENNEY, individually and as next friend of

STEPHEN McKENNEY, and as personal representative of the

ESTATE OF STEPHEN McKENNEY,

Plaintiff, Appellee,

v.

NICHOLAS MANGINO,

Defendant, Appellant,

CUMBERLAND COUNTY ET AL.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Howard, Chief Judge,

Selya and Lipez, Circuit Judges.

Peter T. Marchesi, with whom Cassandra S. Shaffer and Wheeler

& Arey, P.A. were on brief, for appellant.

Jamesa J. Drake, with whom Drake Law, LLC, Amber L. Tucker,

and The Law Office of Amber L. Tucker, LLC were on brief, for

appellee.

October 6, 2017

SELYA, Circuit Judge. This is a tragic case in which a

man died at the hands of a police officer who was trying to do his

job. The underlying suit alleges, in relevant part, that the

officer violated 42 U.S.C. § 1983 through the precipitous use of

deadly force. In a pretrial ruling, the district court held that

the officer was not entitled to qualified immunity at the summary

judgment stage. See McKenney v. Mangino, No. 2:15-cv-00073, 2017

WL 1365959, at *13 (D. Me. Apr. 12, 2017). The officer challenges

that ruling. After careful consideration, we dismiss portions of

this interlocutory appeal for want of appellate jurisdiction and

otherwise affirm.

I. BACKGROUND

Because we are tasked with reviewing a summary judgment

ruling, we rehearse the facts in the light most hospitable to the

nonmovant, consistent with record support. See Foote v. Town of

Bedford, 642 F.3d 80, 82 (1st Cir. 2011).

On April 12, 2014, a clear, sunny day in Windham, Maine,

plaintiff-appellee Vicki McKenney called 911 at 6:14 a.m. to report

that her husband, 66-year-old Stephen McKenney, was threatening

suicide and had been "aggressive" and "physical" with her. She

told the dispatcher that her home contained firearms. Within a

matter of minutes, Windham police officers James Cook and Seth

Fournier arrived at the McKenney residence and met Mrs. McKenney

(who was standing outside). She explained that her husband had

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been experiencing severe back pain and had "snapped" that morning.

Almost immediately thereafter, a Cumberland County deputy sheriff,

defendant-appellant Nicholas Mangino, drove up in his cruiser to

serve as backup.

The three officers entered the front room of the house

at 6:22 a.m. and encountered McKenney, who appeared to have a gun

in his hand. When asked what he was holding, McKenney replied

".357 Magnum." Although the officers twice directed McKenney to

put the gun down, McKenney did not comply. Still, he never pointed

his weapon at any of them inside the dwelling, nor did he utter

anything resembling a threat.

The officers retreated outdoors, leaving McKenney inside

the house. Officer Fournier placed Mrs. McKenney in his patrol

car, which he then drove to a cul-de-sac at the end of the street

a few hundred yards away. He maintained a clear line of sight,

though, to the garage and driveway of the McKenney home.

Meanwhile, the defendant, armed with his AR-15 rifle, his Taser,

and pepper spray, took cover behind his cruiser (which was parked

roughly 100 feet from the McKenneys' garage).1

The defendant peeked over his car from time to time to

observe the garage and driveway, while simultaneously receiving

1 For the sake of completeness, we note that Zachary Welch, a

civilian who had been invited by the defendant as a ride-along,

was crouched in the defendant's parked cruiser.

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updates about McKenney's movements from Officer Fournier. Between

6:24 a.m. and 6:31 a.m., McKenney ambled nonchalantly around and

about his open garage, driveway, and house. He entered and exited

the dwelling around six times during that seven-minute span. At

about 6:26 a.m., McKenney left the house with his gun dangling

from his hand. The defendant yelled at him three times to "drop

the gun." A few seconds later, McKenney — who was approximately

100 feet away from the defendant — raised the gun over his head.2

By all accounts, McKenney had a vacant stare and appeared "not at

home" mentally. In short order, he lowered the gun without firing

it and continued to weave haphazardly into and out of his house

between 6:26 a.m. and 6:31 a.m.

At approximately 6:31 a.m., Officer Fournier radioed to

the defendant that McKenney, who was still dangling his firearm

and walking leisurely, was in front of the garage. Fournier

stated: "I can't tell, but he might be pointing that, so be

careful." Within seconds, McKenney began walking (still in his

2 At his deposition, the defendant testified that he believed

that McKenney was pointing the weapon in his direction. Because

we are reviewing a summary judgment ruling, however, we recount

the facts in the light most favorable to the nonmovant (here, the

plaintiff). See Foote, 642 F.3d at 82. The district court seems

to have assumed the truth of the fact that the defendant

"reasonably believed" that McKenney "had pointed his gun at him."

McKenney, 2017 WL 1365959, at *12. Any such assumption was, of

course, made only for the sake of argument; otherwise, it would

have been unwarranted. The court was obliged to view the summary

judgment record in the light most hospitable to the plaintiff.

See Foote, 642 F.3d at 82.

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driveway) in the direction of the defendant's parked cruiser. He

was not making any sudden or evasive movements and was not pointing

his gun at anyone. Officer Fournier alerted the defendant that

McKenney was "walking toward your car right now." When McKenney

had reached a point 69 feet away from the cruiser, the defendant

fired an errant shot at McKenney's central mass. Seconds later,

he fired a second shot at McKenney's head, which struck and killed

McKenney. None of the officers had warned McKenney that they would

use deadly force if he refused to drop his weapon.

We fast-forward to February of 2015, when Mrs. McKenney,

qua plaintiff, suing individually and as the personal

representative of McKenney's estate, brought a civil action in a

Maine state court against the defendant and several other persons

and entities.3 As relevant here, the plaintiff sued the defendant

under 42 U.S.C. § 1983, which authorizes suit against any person

who, while acting under color of state law, violates another

person's federally assured constitutional or statutory rights.

See Kalina v. Fletcher, 522 U.S. 118, 123 (1997). Specifically,

the plaintiff's complaint alleged that the defendant's use of

deadly force transgressed McKenney's Fourth Amendment right to be

free from unreasonable seizures.

3

Given the narrowly circumscribed scope of this interlocutory

appeal, it would serve no useful purpose to enumerate the other

parties and causes of actions limned in the complaint.

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The action was seasonably removed to the federal

district court. See 28 U.S.C. §§ 1331, 1441(a). Following

pretrial discovery, the defendant sought summary judgment on,

inter alia, qualified immunity grounds. See Fed. R. Civ. P. 56(a).

The district court denied the motion. Construing the

record in the light most favorable to the plaintiff, the court

ruled that a rational jury could find that it was unreasonable for

the defendant to believe that McKenney "posed an immediate threat

to the safety of the [defendant] or others at the time he was

shot." McKenney, 2017 WL 1365959, at *12. In explaining this

ruling, the court noted that at the time of the shooting, McKenney

was ambulating nonchalantly around his driveway with his gun

dangling by his side and was nearly 70 feet away from the

defendant's cruiser. See id. By the time the defendant pulled

the trigger, it had been approximately six minutes since the

defendant thought he had seen McKenney pointing the gun at him.

See id. Viewing the facts in the requisite light, the court

concluded that a rational jury could find that the defendant "had

ample opportunity to observe [McKenney's] actions and movements

over the course of several minutes, and acted with knowledge of

all of the relevant circumstances." Id. Other facts, such as

McKenney's suicidality, the fact that the last order directing him

to drop his weapon had come approximately six minutes earlier, and

the fact that no one had ever warned McKenney that deadly force

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would be used if he failed to comply with the officers' orders,

"militate[d] against the reasonableness" of the defendant's use of

deadly force. Id. In a nutshell, the court below held that on

the plaintiff's supportable version of the facts, an objectively

reasonable police officer would have understood, at the moment the

shot was fired, that employing deadly force against McKenney would

contravene clearly established law. See id. at *12-13.

This appeal ensued. Notwithstanding the general

prohibition against interlocutory appeals, see 28 U.S.C. § 1291,

the defendant asserts that we have jurisdiction because his appeal

rests on a denial of qualified immunity and his arguments are

purely legal. See Johnson v. Jones, 515 U.S. 304, 319-20 (1995);

Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998).

II. ANALYSIS

A district court may only grant summary judgment when

the record, construed in the light most congenial to the nonmovant,

presents no genuine issue as to any material fact and reflects the

movant's entitlement to judgment as a matter of law. See Fed. R.

Civ. P. 56(a); Schiffmann v. United States, 811 F.3d 519, 524 (1st

Cir. 2016). We review rulings granting or denying summary judgment

de novo. See DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.

2005).

Subject to only a handful of carefully circumscribed

exceptions, our appellate jurisdiction is restricted to review of

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final orders and judgments. See Johnson, 515 U.S. at 309-10.

Consequently, an interlocutory order denying summary judgment is

typically not appealable when first entered. See 28 U.S.C. § 1291;

Plumhoff v. Rickard, 134 S. Ct. 2012, 2018 (2014).

But an exception to the general requirement of finality

is potentially applicable here. Qualified immunity is a doctrine

that shelters government officials from civil damages liability

"insofar as their conduct does 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).

Courts long have recognized that qualified immunity consists of

both an immunity from suit and an immunity from damages. See

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, claims of

qualified immunity ought to be resolved at the earliest practicable

time. See Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).

Consistent with this principle, we have held that, notwithstanding

the absence of a final judgment, we have jurisdiction to review

interlocutory rulings implicating qualified immunity as long as

those rulings are purely legal in nature (say, a ruling that a

given body of facts will support a claimed violation of clearly

established law). See Stella v. Kelley, 63 F.3d 71, 74 (1st Cir.

1995) (citing Johnson, 515 U.S. at 316-17). But we may not review,

on interlocutory appeal, an order denying qualified immunity "to

the extent that [the order] turns on either an issue of fact or an

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issue perceived by the trial court to be an issue of fact." Id.

By virtue of this prohibition, we lack jurisdiction to consider a

defendant's argument "that the facts asserted by the plaintiffs

are untrue, unproven, warrant a different spin, tell only a small

part of the story, and are presented out of context." Díaz v.

Martínez, 112 F.3d 1, 5 (1st Cir. 1997).

It follows that defendants who invoke our limited power

of interlocutory review to redress denials of qualified immunity

must be prepared to accept the facts in the light most favorable

to the plaintiff and "develop the argument that, even drawing all

the inferences as the district court concluded a jury permissibly

could, they are entitled to judgment as a matter of law." Cady v.

Walsh, 753 F.3d 348, 359-60 (1st Cir. 2014). In other words, an

appellant must explain why he is entitled to qualified immunity

even if one assumes that the district court properly analyzed the

facts.4 See id. at 361; see also Morse v. Cloutier, 869 F.3d 16,

25 (1st Cir. 2017).

Having erected this jurisdictional framework, we turn

next to the qualified immunity standard. When a defendant invokes

4 The Supreme Court has carved out an isthmian exception to

this rule, instructing courts to disregard the nonmovant's version

of the facts if that version is "blatantly contradicted by the

record." Scott v. Harris, 550 U.S. 372, 380 (2007); see Penn v.

Escorsio, 764 F.3d 102, 105 n.2 (1st Cir. 2014). Here, however,

the defendant does not argue that this exception applies and, in

all events, the record belies its applicability.

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qualified immunity, an inquiring court typically engages in a "two-

step pavane." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017).

First, the court must determine "whether the plaintiff's version

of the facts makes out a violation of a protected right." Id.

Second, the court must determine "whether the right at issue was

'clearly established' at the time of defendant's alleged

misconduct." Id. (quoting Matalon v. Hynnes, 806 F.3d 627, 633

(1st Cir. 2015)). This second step is itself divisible into two

components. To begin, the plaintiff must point to "'controlling

authority' or a 'consensus of cases of persuasive authority'" that

broadcasts "a clear signal to a reasonable official that certain

conduct falls short of the constitutional norm." Id. at 76

(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Then, the

court must evaluate "whether an objectively reasonable official in

the defendant's position would have known that his conduct violated

that rule of law." Id. These inquiries are carried out with the

understanding that qualified immunity is meant to shield "all but

the plainly incompetent or those who knowingly violate the law."

White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).

Before proceeding further, we lay the relevant

constitutional foundation. Here, the background law is supplied

by the Fourth Amendment, which guarantees "[t]he right of the

people to be secure in their persons, houses, papers, and effects,

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against unreasonable searches and seizures." U.S. Const. amend.

IV. A police officer's use of deadly force is deemed a seizure

under the Fourth Amendment, and such an extreme action is

reasonable (and, therefore, constitutional) only when "at a

minimum, a suspect poses an immediate threat to police officers or

civilians." Jarrett v. Town of Yarmouth, 331 F.3d 140, 149 (1st

Cir. 2003) (per curiam) (citing Tennessee v. Garner, 471 U.S. 1,

11 (1985)).

Timing is critically important in assessing the

reasonableness of an officer's decision to use lethal force. Our

case law is "comparatively generous" to officers facing "potential

danger, emergency conditions or other exigent circumstances," and

we have fashioned "a fairly wide zone of protection" for the police

in borderline cases. Roy v. Inhabitants of City of Lewiston, 42

F.3d 691, 695 (1st Cir. 1994) (citing Graham v. Connor, 490 U.S.

386, 396-97 (1989)); see Berube v. Conley, 506 F.3d 79, 85 (1st

Cir. 2007). But that zone of protection has shifting boundaries.

Everything depends on context, and the use of deadly force, even

if "reasonable at one moment," may "become unreasonable in the

next if the justification for the use of force has ceased." Lytle

v. Bexar Cty., 560 F.3d 404, 413 (5th Cir. 2009). Put another

way, "[a] passing risk to a police officer is not an ongoing

license to kill an otherwise unthreatening suspect." Abraham v.

Raso, 183 F.3d 279, 294 (3d Cir. 1999).

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Among other things, a suspect's physical proximity and

the speed of his movements are highly relevant to this inquiry.

See Kirby v. Duva, 530 F.3d 475, 482–83 (6th Cir. 2008); Walker v.

City of Orem, 451 F.3d 1139, 1160-61 (10th Cir. 2006). When

feasible, a police officer must give some sort of warning before

employing deadly force. See Garner, 471 U.S. at 11-12; see also

Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23

(1st Cir. 2005) (concluding that officer violated Fourth Amendment

by firing "extraordinarily quickly" and without "adequate warning"

at armed man whose gun was "pointed downwards"). Moreover, federal

courts have afforded a special solicitude to suicidal individuals

in lethal force cases when those individuals have resisted police

commands to drop weapons but pose no real security risk to anyone

other than themselves. See Weinmann v. McClone, 787 F.3d 444, 450

(7th Cir. 2015) (collecting appellate precedents holding that, as

of 2007, clearly established law prevented police officers from

employing "deadly force against suicidal people unless they

threaten harm to others"); Mercado v. City of Orlando, 407 F.3d

1152, 1160-61 (11th Cir. 2005) (similar).

Here, the defendant concentrates on the second step of

the qualified immunity paradigm and faults the district court for

failing to identify a sufficiently similar case that would have

served to place him on notice that his use of deadly force violated

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clearly established Fourth Amendment law.5 In his view, the

contours of the relevant Fourth Amendment law were so blurred at

the time that he shot McKenney that he is deserving of qualified

immunity. We have jurisdiction to consider this purely legal

asseveration. See Johnson, 515 U.S. at 316-17; Morse, 869 F.3d at

24.

Jurisdiction notwithstanding, this argument lacks force.

Although the district court frankly acknowledged that it could not

find "[a] case presenting a nearly identical alignment of facts,"

McKenney, 2017 WL 1365959, at *9, such an exacting degree of

precision is not required to thwart a qualified immunity defense.

To be sure, "the clearly established law" employed in a

qualified immunity analysis "must be particularized to the facts

of the case." White, 137 S. Ct. at 552 (internal quotation marks

omitted). This instruction fits hand in glove with the Supreme

Court's warning that, when dealing with qualified immunity, we

should not over-rely on precedents that are "cast at a high level

of generality." Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per

curiam). Even so, there need not be "a case directly on point" to

satisfy the second step of the qualified immunity paradigm.

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see Anderson, 483

5In this appeal, the defendant does not challenge the

district court's finding of a constitutional violation at step one

of the qualified immunity paradigm.

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U.S. at 640; Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004).

The test is whether existing case law has "placed the statutory or

constitutional question beyond debate." al-Kidd, 563 U.S. at 741.

In some cases, "a general constitutional rule already identified

in the decisional law may apply with obvious clarity to the

specific conduct in question." United States v. Lanier, 520 U.S.

259, 271 (1997). What counts is whether precedents existing at

the time of the incident "establish the applicable legal rule with

sufficient clarity and specificity to put the official on notice

that his contemplated course of conduct will violate that rule."

Alfano, 847 F.3d at 76; see Tolan v. Cotton, 134 S. Ct. 1861, 1866

(2014) (per curiam); Hope v. Pelzer, 536 U.S. 730, 741 (2002).

The Court's landmark decisions in Graham and Garner,

which articulate generalized standards for excessive force

liability under the Fourth Amendment, "do not by themselves create

clearly established law outside an obvious case." White, 137 S.

Ct. at 552 (internal quotation marks omitted). But taking the

facts and the reasonable inferences therefrom in the light most

favorable to the plaintiff, the threat presented lacked immediacy

and alternatives short of lethal force remained open. Seen in

that light, this was a case in which the feasibility of a more

measured approach was apparent. Moreover, the district court did

precisely what the Supreme Court has instructed courts to do: it

focused on "the specific context of the case." Brosseau, 543 U.S.

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at 198 (internal quotation marks omitted). With that context in

mind, it relied on well-settled precedents addressing the

lawfulness of using deadly force against an individual who was

suicidal, armed, slow in gait, some distance away from the officer,

and had received no commands or warnings for several minutes. See

McKenney, 2017 WL 1365959, at *9-11. We conclude, without serious

question, that the precedents identified by the district court and

those discussed supra gave the defendant fair warning that, if the

facts were as the plaintiff claimed them to be, his use of deadly

force against McKenney offended clearly established Fourth

Amendment law — and an objectively reasonable officer would have

realized as much. Therefore, the district court properly concluded

that the absence of a precedent on all fours was not dispositive.

In an effort to dull the force of this reasoning, the

defendant makes a series of factbound arguments. Most notably,

the defendant repeatedly insists — contrary to the inferences drawn

by the district court — that he reasonably perceived McKenney as

an imminent danger at the time of the shooting, such that he was

left with no real choice but to fire his weapon. In turn, he urges

reversal in light of evidence that he maintains the district court

either overlooked or insufficiently considered. These facts

include data points such as that McKenney had ignored police

commands to drop his loaded weapon, had at one time raised his

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gun, and was approaching the defendant (and the unarmed civilian

in the defendant's cruiser) at the time he was shot.

But there is a rub: the defendant's characterization of

the summary judgment record collides head-on with the district

court's synthesis of the facts. The defendant either ignores or

gives unduly short shrift to evidence that was central to the

district court's conclusion that, on the version of the facts most

hospitable to the plaintiff, the defendant had "ample opportunity

to observe [McKenney’s] actions and movements" before pulling the

trigger and that the defendant’s decision to shoot McKenney was

"unreasonably precipitous." McKenney, 2017 WL 1365959, at *12-

13. These facts include McKenney's suicidality, the slowness of

his gait, the clear visibility, the fact that six minutes had

elapsed since any officer had last ordered McKenney to drop his

weapon, the fact that nobody had warned McKenney that deadly force

would be used if he failed to follow police commands, and the six-

minute gap between when McKenney raised his gun skywards and when

the defendant pulled the trigger. Rather than accept arguendo

that McKenney never came close to pointing his gun in the

defendant's direction, the defendant devotes much sound and fury

to the proposition that he reasonably perceived McKenney to be

aiming his weapon at him. In short, the defendant has woven

factbound arguments regarding both the immediacy of the threat

posed by McKenney and the feasibility of less drastic action into

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the warp and woof of his challenge to the district court's

qualified immunity analysis. Such an intertwining of disputed

issues of fact and cherry-picked inferences, on the one hand, with

principles of law, on the other hand, places these arguments beyond

our jurisdictional reach on interlocutory appeal. See Cady, 753

F.3d at 359-60; cf. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 8

(1st Cir. 2005) (concluding that the question of whether a suspect

appeared threatening before officer employed lethal force was

properly resolved by the jury).

To sum up, the precedents make pellucid that the most

relevant factors in a lethal force case like this one are the

immediacy of the danger posed by the decedent and the feasibility

of remedial action. See Garner, 471 U.S. at 11-12; Whitfield, 431

F.3d at 8; Young, 404 F.3d at 23. Taking the facts in the light

most amiable to the plaintiff (as the law required it to do), the

district court concluded that a rational jury could reasonably

infer both that McKenney did not pose an imminent threat and that

viable remedial measures had not been exhausted. The court also

concluded that these facts should have been obvious to an

objectively reasonable officer in the defendant's position.

Although the defendant invites us to adopt a spin on the summary

judgment record different from that taken by the district court,

we lack jurisdiction to accept that invitation under Johnson and

its progeny. See Goguen v. Allen, 780 F.3d 437, 455-56 (1st Cir.

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2015) (dismissing appeal for lack of jurisdiction when "defendants

repeatedly ignore[d] evidence, and reasonable inferences

therefrom" on which the court below premised its interlocutory

denial of qualified immunity); Penn v. Escorsio, 764 F.3d 102, 110

(1st Cir. 2014) (dismissing appeal from interlocutory denial of

qualified immunity after "peel[ing] away the facade by which"

defendants portrayed "purely factual disputes" as legal

arguments); Cady, 753 F.3d at 361 (concluding similarly when

defendant failed to concede arguendo that the court below "was

correct in its determinations regarding what inferences were

permissible on the summary judgment record"); Díaz, 112 F.3d at 5

(dismissing appeal for lack of jurisdiction when defendant merely

attempted to take "a different spin" on the facts). Accordingly,

we dismiss the defendant's factbound challenges to the district

court's order for lack of jurisdiction.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we dismiss the appeal in part for want of appellate jurisdiction

and otherwise affirm the district court's denial of summary

judgment. Costs shall be taxed in favor of the plaintiff.

Of course, our words here are not the end of the matter.

The pretrial denial of qualified immunity is but "a way station in

the travel of a case." Camilo-Robles, 151 F.3d at 9. Depending

on the facts proven at trial and the inferences drawn by the jury,

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the defendant may or may not ultimately prevail on his qualified

immunity defense.6 We hold today simply that the defendant's

purely legal challenge is devoid of merit and that his factbound

arguments are inappropriate for interlocutory appeal.

So Ordered.

6 We recognize that the defendant faced a challenging

situation. On this scumbled record, though, it is for the jury to

decide whether McKenney presented a sufficiently serious and

imminent threat, such that the defendant's ultimate decision to

use lethal force was objectively reasonable or, at least, belongs

within the "zone of protection" afforded to police officers in

borderline cases. Roy, 42 F.3d at 695.

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