Petition for Writ of Certiorari — Jennifer Root Bannon, as the Special Personal Representative of the Estate of Juston Root, Petitioner v. David Godin, Boston Police Officer, et al.

No. 24In the

Supreme Court of the United States

JENNIFER ROOT BANNON,

AS THE SPECIAL PERSONAL REPRESENTATIVE

OF THE ESTATE OF JUSTON ROOT,

Petitioner,

v.

DAVID GODIN, BOSTON POLICE OFFICER;

JOSEPH MCMENAMY, BOSTON POLICE OFFICER;

LEROY FERNANDES, BOSTON POLICE OFFICER;

BRENDA FIGUEROA, BOSTON POLICE OFFICER;

COREY THOMAS, BOSTON POLICE OFFICER;

PAUL CONNEELY, MASSACHUSETTS STATE

TROOPER; THE CITY OF BOSTON,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark A. Berthiaume

Counsel of Record

Gary R. Greenberg

Peter A lley

A lison T. Holdway

Greenberg Traurig, LLP

One International Place, Suite 2000

Boston, MA 02110

(617) 310-6000

berthiaumem@gtlaw.com

Attorneys for Petitioner

130380

i

QUESTIONS PRESENTED

1.

Did the appeals court improperly create new

summary judgment standards under which a

court may assess the summary judgment record

by making factual determinations, weighing

evidence, assessing credibility, and drawing

inferences in the movant’s favor?

2.

Did the appeals court create a circuit split as to

the standards governing whether the totality

of the circumstances justifies the use of deadly

force?

ii

RELATED PROCEEDINGS

1.

Bannon v. Godin, et al., No. 1:20-cv-11501-RGS,

United States District Court for the District of

Massachusetts. Judgment entered December 5,

2022.

2.

Bannon v. Godin, et al., No. 22-1958, United

States Court of Appeals for the First Circuit.

Judgment entered April 22, 2024.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 7

B. Procedural Background . . . . . . . . . . . . . . . . . . . 14

REASONS FOR GRANTING CERTIORARI . . . . . . 17

iv

Table of Contents

Page

A. T h e M ajo r it y D e c i s i on C r e a t e s a

New Summar y Judg ment Standard,

Allowing Lower Courts to Make Factual

Determinations, Weigh Evidence, Assess

Credibility, and Draw Inferences in the

Movant’s Favor Despite Contradictory

Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

B. The Majority Decision Creates a Circuit

Split Concerning the Standards Governing

the Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . 26

C. This Case Presents Exceptionally Important

Questions that Warrant Review . . . . . . . . . . . . . 34

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

v

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT, FILED APRIL 22, 2024 . . . . . . 1a

A P P E N DI X B — O P I N ION O F T H E

UNITED STATES DISTRICT COURT

OF M A SSACHUSETTS, FILED

DECEMBER 5, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . 90a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E F I R S T CI RCU I T, F I L ED

JUNE 10, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109a

APPENDIX D — CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED . . . . . 111a

vi

TABLE OF CITED AUTHORITIES

Page

Cases

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . 6, 17-18, 19

Brockington v. Boykins,

637 F.3d 503 (4th Cir. 2011) . . . . . . . . . . . . . . 27, 28, 33

Caruso v. Delta Air Lines, Inc.,

No. 22-1175, --- F.4th ---, 2024 WL 3886629 (1st Cir.

Aug. 21, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

City of Escondido v. Emmons,

586 U.S. 38 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Estate of Jones by Jones v. City of Martinsburg,

726 F. App’x 173 (4th Cir. 2018) . . . . . . . . . . . . . . . . . 20

Estate of Jones by Jones v.

City of Martinsburg, W. Va.,

961 F.3d 661 (4th Cir. 2020) . . . . . . . . . . . . . . 28, 30, 33

Fancher v. Barrientos,

723 F.3d 1191 (10th Cir. 2013) . . . . . . . . . . . . . . . . . . 27

Franklin v. City of Charlotte,

64 F.4th 519 (4th Cir. 2023) . . . . . . . . . . . . . . 31, 32, 33

vii

Cited Authorities

Page

Goodwin v. City of Painesville,

781 F.3d 314 (6th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 21

Graham v. Connor,

490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Hunt v. Cromartie,

526 U.S. 541 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Ingle ex rel. Estate of Ingle v. Yelton,

439 F.3d 191 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 21

Lachance v. Town of Charlton,

990 F.3d 14 (1st Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 27

Lamont v. New Jersey,

637 F.3d 177 (3d Cir. 2011) . . . . . . . . . . . . . . . . . . . . . 21

Mason v. Lafayette City-Parish Consol. Gov’t,

806 F.3d 268 (5th Cir. 2015) . . . . . . . . . . . . . . . . . 27, 33

McKenney v. Mangino,

873 F.3d 75 (1st Cir. 2017) . . . . . . . . . . . . . . . 26, 27, 28

Mitchell v. Miller,

790 F.3d 73 (1st Cir. 2015) . . . . . . . . . . . . . . . . . . . . . 21

N.S. v. Kansas City Bd.of Police Comm’rs,

143 S. Ct. 2422 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Plakas v. Drinski,

19 F.3d 1143 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . 21

viii

Cited Authorities

Page

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 18, 23

Scott v. Henrich,

39 F.3d 912 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 21

Tan Lam v. City of Los Banos,

976 F.3d 986 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 27

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Velazquez-Garcia v. Horizon Lines of P.R., Inc.,

473 F.3d 11 (1st Cir. 2007) . . . . . . . . . . . . . . . . . . . . . 18

Velez-Gomez v. SMA Life Assurance Co.,

8 F.3d 873 (1st Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . 18

Statutes and Other Authorities

U.S. Const. Amend. IV . . . . . . . 1, 6, 14, 15, 30, 33, 35, 36

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Massachusetts Declaration of Rights, Article XIV . . . . 1

Massachusetts General Laws chapter 12, §§ 11H

and 11I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15

1

PETITION FOR A WRIT OF CERTIORARI

Jennifer Root Bannon respectfully petitions for a writ

of certiorari to review the judgment of the United States

Court of Appeals for the First Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is in Appendix A

and reported at 99 F.4th 63. The District Court’s order

granting defendant-respondents’ motions for summary

judgment is in Appendix B; it is unreported but is available

at 2022 WL 17417615 and 2022 U.S. Dist. LEXIS 218303.

JURISDICTION

The judgment of the Court of Appeals was entered

on April 22, 2024. A petition for rehearing was denied on

June 10, 2024. See Appendix C. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following federal and state

constitutional and statutory provisions, each of which is

in Appendix D: the Fourth Amendment to the United

States Constitution; 42 U.S.C. § 1983; Article XIV of the

Massachusetts Declaration of Rights; and Massachusetts

General Laws chapter 12, sections 11H and 11I.

2

STATEMENT

This Petition rests on the last three to four seconds of

the life of Juston Root (“Root”). On February 7, 2020, Root

was shot 31 times by six police officers.1 Approximately

10 seconds before this hail of bullets, EMS-certified

bystander Shelly McCarthy (“McCarthy”) reached Root

to assist him, thinking that he was experiencing a cardiac

event. McCarthy testified that (i) Root was lying on the

ground covered in blood, “was struggling to breathe,” did

not speak, “start[ed] making a lot of gurgling noises with

his breathing,” and was “gurgling blood”; (ii) he “appeared

to have the “[l]ights on[,] no one home,” and his eyes were

“bouncing around like ping-pong balls” until they rolled

to the back of his head; (iii) during the entire time she

saw him “his right hand remained on his chest,” his left

“remained hanging down”; and (iv) he did not try to get

up and could “absolutely not” have gotten onto his feet.

Off icers screamed commands at Root, which

McCarthy and other witnesses—including Defendants—

described as unintelligible, confusing, and chaotic.

McCa r thy obser ved that Root had no react ion,

notwithstanding the sirens and screaming. Officers

yelled at McCarthy to leave Root’s side. When she left,

Root was on the ground, his eyes still stuck in the back

of his head, and his right hand still clutching his chest.

1. The officers who killed Root are Boston police officers

David Godin, Joseph McMenamy, Leroy Fernandes, Brenda

Figueroa, and Corey Thomas plus State Trooper Paul Conneely.

Each is a defendant in this case. This petition refers to the

defendant officers individually as “Defendant [Last Name]” and

collectively as “Defendants.” The City of Boston, also a defendant,

is referred to as the “City.”

3

McCarthy let go of Root’s face and ran a few steps before

the barrage of bullets. The majority below found that,

“[f]rom the time McCarthy reached Root (and then left)

to the time of the shooting, approximately ten seconds

elapsed.” App., infra, 8a. In other words, within three

or four seconds after McCarthy turned away, the six

officers fired 31 bullets into Root.

Root’s lifeless condition resulted from being shot,

a short time before, by Boston police near Brigham &

Women’s Hospital (“BWH”) in Boston, 2 the significant

blood loss he sustained in an ensuing vehicle pursuit

that a Defendant described “as slow as molasses,” and

the crushing impact of his subsequent collision with

other vehicles in the neighboring town of Brookline.

The collision—which occurred shortly after a Defendant

“rammed” his cruiser into Root’s car in an attempted

PIT maneuver 3 —was so forceful that two wheels of

Root’s car fell off, a third tire was off its rim, and the

air bags deployed. The car’s interior was covered in

blood. Surveillance video shows Root stumble out of his

demolished car, limp around it, fall onto the sidewalk,

slowly get up, and stagger to a mulched area adjacent to

a shopping center parking lot, where he fell again. That

is where he was when McCarthy arrived to help him and

where he remained, nearly lifeless, until he was shot

seconds after she turned away.

2. In addition to shooting Root outside of BWH, the officers

shot a valet working at the hospital.

3. A PIT maneuver, or a precision immobilization technique,

is when an officer uses their vehicle to strike another vehicle.

App., infra, 5a.

4

As the dissent below explained, Defendants’ claims

about what they allegedly observed of Root immediately

before the shooting and why they each fired are entirely

inconsistent:

While some officers stated that Root was seated

or kneeling, others recalled Root standing on

two feet, and one officer first testified that

Root was standing but later said that Root

was merely attempting to stand. There were

also officers who testified that Root’s hand was

by his chest the entire time, while others said

Root moved his hand up to his chest. Some of

the officers observed Root reaching into his

jacket, others testified that they fired because

Root was removing his hand from his jacket,

and yet another officer testified that shots were

fired because Root was reaching into his jacket

but later said shots were fired after Root began

pulling his hand out of his jacket.

App., infra, 74a–75a. Worse still, the Boston police officer

defendants (except one) met together with their lawyer and

the police union president before they were interviewed

by investigators about the fatal shooting. The one officer

who did not recall whether he attended that meeting is the

only one who did not testify that Root supposedly reached

into or out of his jacket. A sergeant who investigated the

shooting testified that the officers having met together

before being interviewed “taint[ed]” their versions of

events.

During the fatal shooting, Root sustained four bullet

wounds to his right hand, including one through his palm.

5

Defendant Conneely claimed that he removed a plastic

bb-gun from Root’s right hand as officers rolled him over

immediately after the shooting. But Defendant Figueroa

testified that nothing was in Root’s right hand when they

rolled him over, and two officers from the Brookline Police

Department reported they actually saw a bb-gun fall out

of Root’s chest area when he was rolled over. Moreover,

the plastic bb-gun recovered at the scene was in pristine

condition without any blood on it. A forensic expert

testified that, in light of the multiple gunshot wounds to

Root’s hand, if the plastic bb-gun had been in his hand at

the time of the shooting, it would have been bloodied and

damaged. The expert also concluded, as the dissent below

pointed out, that Root’s blood loss between the shooting

at BWH and when he exited his car in Brookline was

“significant” and would have rendered him “physically

and mentally impaired.” App., infra, 68a, 78a.

Despite the evidence of Root’s incapacity—including

McCarthy’s testimony, video footage, and expert

testimony—and Defendants’ demonstrated credibility

issues, the majority below concluded that a jury could not

reasonably infer that Root “could not have reached his

right hand under his jacket.” App., infra, 35a. In other

words, according to the majority, the only reasonable

inference is that, within no more than three or four

seconds after McCarthy left Root’s side, Root had the

ability to rouse himself from the lifeless stupor McCarthy

described and, according to only some Defendants’

testimony, reach inside his jacket. The majority offered

no reasoning for its dismissal of McCarthy’s testimony,

other than to declare she was not an eyewitness to Root’s

position and actions the moment of the shooting and to

attempt to blunt McCarthy’s testimony by observing that

6

she “did not convey these observations to the officers at

the time.” App., infra, 22a. The majority reached these

conclusions by improperly weighing McCarthy’s testimony

against Defendants’ testimony, accepting their testimony

as true while discounting hers, and drawing inferences in

Defendants’ favor, even though they were the summary

judgment movants.

Petitioner, as the nonmovant, “need only present

evidence from which a jury might return a verdict in [her]

favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257

(1986) (emphasis added). There is more than sufficient

evidence for a jury to conclude that given that Root was in

extremis, he was entirely incapable of reaching inside his

jacket, and, as a result, Defendants’ use of force violated

Root’s Fourth Amendment rights. Yet the majority

charted new territory by denigrating evidence supporting

Petitioner’s claims in favor of Defendants’ incredible and

inconsistent stories.

The majority also split from established authority

in the First Circuit and other circuits concerning how

police in the moment, and courts thereafter, are to assess

the totality of the circumstances surrounding the use of

deadly force. Rather than uphold the obligation of police

to reassess the reasonableness of the use of force when

an intervening event has fundamentally changed the

circumstances, the majority allowed Defendants here

and police going forward to kill with impunity based on

an earlier threat. This is not the law. As a result of the

majority decision, civilians within the First Circuit are

less protected from police violence than people elsewhere

in the country. A grant of certiorari is necessary to clarify

and reinforce bedrock Fourth Amendment principles

7

so that they equally protect the public throughout the

country. The majority decision below should not stand.

A. Factual Background

On February 7, 2020, Defendant Godin and another

officer from the Boston Police Department (“BPD”) (who

is not a party here) responded to a call about a person

with a gun near BWH in Boston, Massachusetts; they

found Root, who had gotten out of his car, walking on the

sidewalk. Defendant Godin pointed his firearm at Root,

prompting Root to remove a clear plastic paintball marker

from his waist. Defendant Godin and the other officer

fired at Root and believed they shot him. Root limped to

his car and drove away.

Defendant Godin drove after Root and stated over

BPD that Root had been shot, which the dispatcher

repeated over the radio for all units to hear. During the

pursuit, Defendant McMenamy intentionally “rammed”

his cruiser into Root’s car. Defendant McMenamy testified

that when he hit Root’s car, the pursuit was “noticeably

slow” and “as slow as molasses.” Video evidence confirms

the pursuit’s slow pace. It is undisputed that the pursuit

did not speed up until after Defendant McMenamy hit

Root’s car.

The pursuit continued down a highway until Root’s

car struck other vehicles and was extensively damaged.

By the time his car came to a stop at the entrance to a

parking lot, the air bags had deployed and three tires had

fallen off. Root managed to get out of the car. He limped

around it, fell onto the sidewalk, got up, staggered toward

an adjacent mulched area, and fell again. Defendant

8

Conneely “couldn’t believe [Root] got out of” the car, and

Defendant Figueroa assumed he was injured.

McCarthy was sitting in her car in the adjacent

parking lot. She observed Root stumbling and holding

his chest; she believed he might be having “a cardiac

event.” She did not take her eyes off him; she ran to help

and reached him as he fell the second time. (A cell phone

video taken by an unknown bystander captured McCarthy

running to help Root as he fell in the mulch.) According

to McCarthy, Root appeared to be covered in blood; did

not speak; “was struggling to breathe”; “gurgling blood”;

appeared to have the “[l]ights on[,] no one home”; and his

eyes were “bouncing around like ping-pong balls” until

they rolled to the back of his head. The entire time she

saw Root, “his right hand remained on his chest,” his left

“remained hanging down,” he did not try to get up, and

could “absolutely not” have gotten up.

Police began arriving, simultaneously screaming

different unintelligible, “confus[ing],” and “chao[tic]”

commands like, “Let me see your hands,” “Get on the

ground,” “Show us your hands,” “Stay on the ground

and show me your hands,” “Get down,” “Let me see your

hands,” and “Stay down.” Root had no reaction. Root—

according to Defendants’ varied deposition testimony and

statements to law enforcement investigators—was “on the

ground”; on his knees; sitting; “like in a half lying, half

kneeling type of position”; “lying, kneeling”; “never able

to get up”; not fleeing; did not get up or move; and did not

talk. Police ordered McCarthy to leave Root, which she

reluctantly did.

9

Within seconds of their arrival and no more than

three or four seconds after McCarthy left Root’s side,

Defendants opened fire. Defendants proffered different

reasons for firing: Defendants Figueroa and Conneely

claim they thought they saw the handle of a gun;

Defendants Fernandes and Thomas claim they heard a

gunshot; Defendant Godin claims he heard another officer

say the word “gun”; and Defendant McMenamy claims he

saw Root actually stand up and open his jacket, “saw a

floating gun in [Root’s] chest,” and saw Root “reach” in that

direction. No other Defendant claims to have seen Root

stand, and no Defendant saw a gun in Root’s hand prior

to shooting. While McCarthy observed Root clutching

his chest with his right hand the entire time she saw him,

Defendants could not see Root’s hands, do not remember

whether they could see his hands, or acknowledged that

his right hand was in his chest area. Defendants admitted

that they did not try to engage with Root or assess his

physical or mental condition before firing.

As captured on body worn camera (“BWC”) footage

after the shooting, Defendant Conneely told Defendant

McMenamy to “shut your f*ckin’ mouth” and asked if

he had “a rep comin.’” Defendant McMenamy replied, “I

won’t talk.”

Root did not possess a firearm. An unloaded plastic

bb-gun with a metal rod extending from its barrel was

recovered near Root’s body. It was undamaged and did

not have blood on it:

10

Photos of the bb-gun taken at the scene in Brookline and

at the BPD’s evidence storage facility. See Petitioner’s

Summary Judgment Exhibits 30 and 31 (District Court

Dkt. Nos. 89-30 and 89-31).

11

Defendant Conneely claimed that when he, Defendant

Figueroa, and other officers rolled Root’s body over after

the shooting, he recovered the bb-gun from Root’s right

hand. This conflicts with (1) statements by two other police

officers at the scene, both of whom were from a different

town’s police force, that when Root’s body was rolled over,

they saw a gun fall from his chest area; and (2) Defendant

Figueroa’s testimony that nothing was in Root’s right hand

when she and Defendant Conneely rolled Root over and

handcuffed him after the shooting.

Four bullets struck Root’s right hand, including one

through his palm:

Autopsy photos of Root’s right hand. See Petitioner’s

Summary Judgment Exhibit 77 (District Court Dkt.

No. 109-40).

12

Petitioner’s forensic medical expert opined that if

Root had the bb-gun “in his [right] hand at the time that

he was shot in Brookline, it would have had blood on it”

and have been damaged.

Unlike the many witnesses who were interviewed

on the day of the fatal shooting, the BPD Defendants

were not interviewed by law enforcement investigators

until five days later, and Defendant Conneely was not

interviewed until seven days later. The BPD Defendants

were represented by the same attorney, and between the

shooting and the interviews, the BPD Defendants met

together as a group with their attorney to prepare for

their interviews. BPD union president Larry Calderone

also attended a portion of that meeting.

BPD rules require that witnesses to a use of force

incident be separated before being interviewed by

investigators. BPD Sergeant Detective Marc Sullivan,

who investigated Root’s death, testified that “it’s very

important” that officers involved in a deadly use of force

incident not speak to each other about the incident before

being interviewed by investigators because “everybody is

going to have a different perception of the incident, and

. . . everybody’s recollection is going to be different. I want

their recollection of the incident.” Sullivan implied that

Calderone has a history of allowing BPD officers to talk

to each other before being interviewed; he testified that

he has “had several meetings with . . . Calderone. And

it’s been confrontational, but we’ve instilled upon him the

importance that his [union] membership shouldn’t talk.”

Sullivan testified that before learning it at his deposition,

he did not know that the BPD Defendants met together

to prepare to be interviewed. He added that the BPD

13

Defendants having met together to prepare “would taint

the interview[s].”

It was after the post-group-meeting interviews that

the BPD Defendants first stated that Root was supposedly

reaching before the shooting. Defendant Thomas—who

did not recall whether he attended the meeting—was

the only BPD Defendant who did not claim to see Root

reaching.

There is no video footage of the fatal shooting. The

BPD equips its officers with BWCs, which officers must

affix to their uniforms and turn on to record most policecivilian interactions. Defendants Godin, McMenamy, and

Figueroa were required to have their BWCs recording

during the vehicle pursuit and subsequent shooting.4 Of

the three, only Defendant Figueroa activated her BWC,

but she did not until approximately 23 seconds before

the pursuit ended. When she drew her firearm, her arms

completely obscured her BWC’s lens, resulting in the

BWC recording audio but no video during the shooting.

Defendant McMenamy turned on his BWC only after the

shooting. Defendant Godin repeatedly claimed that his

BWC was in his duty bag on February 7. BWC footage

of him and an audit of his BWC establish that was a lie:

he was wearing his BWC on February 7 during the fatal

shooting, removed the BWC from his chest after the

shooting and threw it into his cruiser, and had recorded

two videos with it earlier that morning before interacting

4. The then-effective BPD rules allowed but did not require

officers working overtime shifts to wear BWCs. Defendants

Fernandes and Thomas were both working overtime shifts on

February 7, 2020. Both could have chosen to wear and activate

BWCs, but neither did.

14

with Root. Defendants Figueroa, Godin, and McMenamy

were never disciplined for violating the BPD’s BWC

rules, and Defendant Godin was never disciplined for his

repeated false statements about his BWC.

B. Procedural Background

1. Petitioner—Root’s sister—filed a complaint in

the United States District Court for the District of

Massachusetts bringing federal and state civil rights

claims and related state law claims against the six

officers who killed Root and the City of Boston (“City”).

As relevant here, Petitioner alleged that Defendants used

excessive force against Root in violation of his Fourth

Amendment rights by repeatedly shooting him when he

was lying on the ground and incapacitated. Compl. ¶¶ 23,

26, 29, 40–72, 81–95. Petitioner brought a similar claim

under the Massachusetts Civil Rights Act for violating

the Massachusetts Declaration of Rights. Id. ¶¶ 96–99.

2. After fact and expert discovery, the parties

cross-moved for summary judgment. 5 The District

Court denied Petitioner’s summary judgment motion,

granted Defendants’ and the City’s summary judgment

motions, and entered final judgment for them. App., infra,

90a–108a. As is relevant, the court held that Defendants’

use of deadly force was reasonable because they “were

aware that Root was reportedly armed and dangerous”;

Root “fled” from BWH and led police “on a dangerous car

5. Petitioner moved for summary judgment on the claims

against Defendants but did not move for summary judgment

against the City. Defendants and the City moved for summary

judgment on all claims against them.

15

chase through a densely populated area, culminating in

Root’s violent collision with vehicles driven by civilian[s]”;

and Root “reached into his jacket” while surrounded by

officers in Brookline. App., infra, 98a. The court further

held that Defendants were entitled to qualified immunity.

App., infra, 101a–104a.

3. In a split decision, the Court of Appeals affirmed.6

The majority held that “no reasonable jury could conclude

that the officers engaged in excessive force in violation of

the Fourth Amendment” and “that the officers are entitled

to qualified immunity.” App., infra, 27a.

As to excessive force, the majority concluded that

“[n]o reasonable jury could conclude that a reasonable

officer would not have determined that Root posed an

immediate threat.” App., infra, 29a. In reaching this

conclusion, the majority contravened established Fourth

Amendment precedent by determining that a material

change in Root’s circumstances between the earlier

incident at BWH and the fatal shooting (i.e., the accident

that totaled his car and left him nearly dead on the

ground) did not impact the totality of the circumstances

that the officers were required to consider before using

deadly force. App., infra, 30a–31a. The majority also found

that, based on Defendants’ testimony and regardless of

6. Petitioner is seeking review of the entry of summary

judgment in Defendants’ favor on Counts 1 (42 U.S.C. § 1983), 2

(Mass. Gen. Laws ch. 12, §§ 11H and 11I), 8 (assault and battery),

and 9 (wrongful death). Petitioner is not seeking review of the

entry of summary judgment in Defendant McMenamy’s favor on

Counts 5 and 6, both of which related to the PIT maneuver, or

summary judgment in the City’s favor on Count 7, which asserted

a claim for failure to train and supervise.

16

McCarthy’s testimony, it is not reasonable to infer that

Root could not have acted threateningly, not reached into

his jacket, or not moved his arm. App., infra, 34a–37a.

The dissent methodically identified multiple instances

where the evidence diverged and, when viewed in the light

most favorable to Petitioner, from which a reasonable jury

could find in Petitioner’s favor. App., infra, 55a–81a. In

particular, the dissent concluded:

[T]he inconsistencies in [Defendants’] testimony

regarding Root’s movements (particularly when

paired with McCarthy’s testimony . . . ) create

genuine issues of material fact as to what Root’s

movements were just prior to the shooting.

. . . Aside from the inconsistencies regarding

Root’s movements, the officers provided other

testimony that was controverted by other pieces

of evidence. For example, Godin repeatedly

stated that he was not wearing his body-worn

camera on the day Root was killed; however,

this was later disproved by video evidence from

another officer’s body-worn camera. Conneely

also testified that he only shot when he saw

Root’s hand around what appeared to be a

firearm handle; however, the physical evidence

and testimony of Plaintiff’s [forensic] expert . . .

lead to the conclusion that the bb gun Root had

in his possession could not have been in his hand

at the time the shooting occurred (or at any time

during the Brookline incident), not only because

the plastic bb gun did not appear to have blood

on it but also because it was undamaged.

App., infra, 75a–76a.

17

The dissent found that “the inconsistencies also raise

questions as to the credibility of the officers, as does other

evidence in the record,” like Godin lying about wearing his

BWC, Godin and McMenamy not activating their BWCs,

“McMenamy telling Conneely that he ‘wo[uld]n’t talk,’”

and that the BPD Defendants “met collectively prior to

their interviews (other than Thomas, who notably did not

testify that he saw Root reach into or out of his jacket).”

App., infra, 75a–77a. As the dissent explained, only a trial

can resolve these disputes of material fact. App., infra,

71a–81a.

4. Petitioner moved for rehearing, which the Court

of Appeals denied. App., infra, 109a–110a.

REASONS FOR GRANTING CERTIORARI

A. The Majority Decision Creates a New Summary

Judgment Standard, Allowing Lower Courts to

Make Factual Determinations, Weigh Evidence,

Assess Credibility, and Draw Inferences in the

Movant’s Favor Despite Contradictory Evidence.

This Court has reiterated basic summary judgment

standards:

• The court cannot make credibility determinations or

weigh evidence, and it must believe “[t]he evidence

of the non-movant” and draw “all justifiable

inferences . . . in his favor.” 7 Anderson, 477 U.S. at

7. Because Petitioner appealed the grant of Defendants’ and

the City’s summary judgment motions, she is the nonmovant for

purposes of the appeal.

18

255 (citation omitted); see also Velez-Gomez v. SMA

Life Assurance Co., 8 F.3d 873, 878 (1st Cir. 1993)

(“At the summary judgment stage, however, there

is ‘no room for credibility determinations, no room

for the measured weighing of conflicting evidence

such as the trial process entails, no room for the

judge to superimpose his own ideas of probability

and likelihood (no matter how reasonable those

ideas may be) . . . . ”’) (citation omitted).

• The court “give[s] credence to the evidence favoring

the nonmovant” and to “evidence supporting

the moving party,” only if that evidence “is

uncontradicted and unimpeached” and “comes

from disinterested witnesses.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)

(court “must disregard all evidence favorable to

the moving party that the jury is not required to

believe”) (quotations and citation omitted); see also

Velazquez-Garcia v. Horizon Lines of P.R., Inc.,

473 F.3d 11, 18 (1st Cir. 2007) (“[P]rovided that

the nonmovant’s deposition testimony sets forth

specific facts, within his personal knowledge, that,

if proven, would affect the outcome of the trial, the

testimony must be accepted as true for purposes

of summary judgment.”) (emphasis added). 8

8. The District Court misquoted Velazquez-Garcia by

omitting “the nonmovant’s” from the language quoted above

and credited the movant Defendants’ testimony in the face of

countervailing evidence. App., infra, 99a. The First Circuit did not

correct the District Court’s misapprehension and misapplication

of the rule that the movants’ evidence is to be accepted only if it

is uncontradicted and unimpeached.

19

• A nonmovant plaintiff “need only present evidence

from which a jury might return a verdict in his

favor. If he does so, there is a genuine issue of fact

that requires a trial.” Anderson, 477 U.S. at 257

(emphasis added); see also Hunt v. Cromartie, 526

U.S. 541, 552 (1999) (“Reasonable inferences from

the undisputed facts can be drawn in favor of a

racial motivation finding or in favor of a political

motivation finding. . . . [I]t was error in this case

for the District Court to resolve the disputed fact

of motivation at the summary judgment stage.”)

(citation omitted).

• When the movant does not have the burden of

proof at trial, at summary judgment, the movant

must show “that there is an absence of evidence to

support the nonmoving party’s case.” Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986).

The First Circuit did not merely ignore these rules;

it flipped them on their heads. The majority improperly

accepted Defendants’ statements and deposition testimony

as true, discounted evidence undermining Defendants’

claims, and drew inferences in Defendants’ favor.

App., infra, 9a–18a, 21a–23a. In so doing, the majority

established new summary standards that lower courts

and litigants will follow as precedent in future cases.

Examples of the majority’s new summary judgment

rules abound:

First, the majority repeatedly accepted Defendants’

testimony and contended their testimony was consistent,

despite multiple examples—identified in Petitioner’s

20

briefing to the Court of Appeals and in the dissent—of

inconsistencies throughout their versions of events. For

example, the majority accepted some Defendants’ claims

that they “saw Root reach into his jacket as if to reach for

a gun,” dismissed contradictory evidence, and concluded

that Defendants’ claims must be accurate. App., infra,

33a–36a.

In contrast, the dissent highlighted the numerous

inconsistences in Defendants’ versions about what

Root was allegedly doing when they killed him: some

Defendants stated Root was seated or kneeling while

others said he was standing or attempting to stand; some

Defendants “testified that Root’s hand was by his chest the

entire time, while others said Root moved his hand up to

his chest”; some Defendants “observed Root reaching into

his jacket,” but “others testified that they fired because

Root was removing his hand from his jacket”; and “yet

another officer testified that shots were fired because

Root was reaching into his jacket but later said shots were

fired after Root began pulling his hand out of his jacket.”

App., infra, 74a–75a. These inconsistences alone—even

without considering McCarthy’s testimony and video

footage showing Root stumbling from his car and into

the mulch—warrant a trial. See, e.g., Estate of Jones by

Jones v. City of Martinsburg, 726 F. App’x 173, 179 (4th

Cir. 2018) (“[T]he district court erred by considering the

facts in the light most favorable to the officers, concluding

that [their] version of events was essentially undisputed

despite discrepancies among the officers’ accounts, and

reasoning that Jones’s continuing grasp on the knife

from where he lay on the ground—beaten, choked, and

tased—indisputably constituted an immediate threat to

the officers’ safety at the time he was shot.”).

21

The majority also ignored incontrovertible evidence of

Defendants’ lack of credibility, including that Defendant

Godin repeatedly lied about whether he was wearing his

BWC; that Defendant Conneely claimed the bb-gun was

in Root’s right hand after the shooting, while Petitioner’s

forensic expert opined that the bb-gun could not have

been in his right hand in light of the injuries to that hand

and that the bb-gun was unscathed; and that a sergeant

testified that the BPD officer Defendants having met

together before being interviewed by law enforcement

“taint[ed]” their interviews, impugning their credibility.

See, e.g., App., infra, 37a n.20 (“No material dispute of

fact emerges from the officers having spoken together

after the very tense event putting them in danger and

before speaking to investigators, even if doing so violated

BPD rules (as Bannon asserts).”). While a court must not

make credibility determinations on summary judgment,

it cannot ignore the nonmovant’s affirmative evidence

of the movants’ incredibility. See Mitchell v. Miller, 790

F.3d 73, 79 n.4 (1st Cir. 2015) (“affirmative evidence that

the officer is lying” creates a genuine dispute of material

fact) (cleaned up); Goodwin v. City of Painesville, 781

F.3d 314, 323 (6th Cir. 2015) (“[S]ummary judgment is

not appropriate where the opposing party offers specific

facts that call into question the credibility of the movant’s

witnesses.”) (internal citations and quotation marks

omitted). App., infra, 77a n.41 (dissent explaining that

Petitioner “put forward affirmative evidence that raises

material issues regarding the officers’ credibility”). This

is particularly true where, as here, the police killed the

only other witness who would have the most knowledge

about the circumstances of the shooting. See Lamont v.

New Jersey, 637 F.3d 177, 181–82 (3d Cir. 2011) (“Because

‘the victim of deadly force is unable to testify,’ . . . a court

ruling on summary judgment in a deadly-force case ‘should

22

be cautious . . . to ensure that the officer[s are] not taking

advantage of the fact that the witness most likely to

contradict [their] story—the person shot dead—is unable

to testify.’”) (alteration in original) (citations omitted);

Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir. 1994) (“In

any self-defense case, a defendant knows that the only

person likely to contradict him or her is beyond reach.”);

see also Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d

191, 195–96 (4th Cir. 2006); Scott v. Henrich, 39 F.3d 912,

915 (9th Cir. 1994), cert. denied, 515 U.S. 1159 (1995).

Second, the majority gave great weight to unsworn

statements by a witness, Victor Gerbaudo (“Gerbaudo”), to

law enforcement investigators but discounted McCarthy’s

sworn testimony. The majority concluded that Gerbaudo’s

statements “fully substantiate[] the officers’ versions of

events.” App., infra, 19a–21a, 34a–35a, 38a. But there are

fundamental problems with the majority’s treatment of

Gerbaudo’s statements:

• In contrast to McCarthy—who was at Root’s side,

touching him, taking stock of his injuries, assessing

his condition, and trying to help him—Gerbaudo

was in his car in the middle lane on the opposite

side of a multi-lane highway, with multiple police

cars and officers between where Gerbaudo sat and

where Root was in the mulch.

• Gerbaudo told investigators that Root “took his

right hand under his coat and at the time that

happened, um, the police officers discharged their

firearms on him.” It is unclear whether Gerbaudo

meant that Root reached his hand from outside his

coat to inside his coat or that Root’s right hand was

already under his coat. Interpreting Gerbaudo’s

23

statement in the light most favorable to Petitioner—

as the court must—it is reasonable to infer that

Root was clutching his chest in pain or was moving

his hand already inside his coat in compliance with

commands to show his hands. This too should have

precluded summary judgment.

• Gerbaudo claimed that Root “turned around facing

the officers.” As the dissent explained, this is

“wholly inconsistent” with Defendants’ statements,

none of whom contend that Root turned around.

App., infra, 68a n.37, 75a.

• As the dissent noted, after the shooting and after

Gerbaudo arrived at the hospital where he worked,

Gerbaudo—a former reserve police officer—

approached police to give a statement “‘because . . .

[he] kn[e]w that it would have helped [the] officers.’”

App., infra, 66a nn.35–36.

In contrast to the importance the majority ascribed

to Gerbaudo’s statements despite inconsistences between

them and Defendants’ testimony and issues with his

credibility, the majority wrote off McCarthy’s sworn

testimony merely because she allegedly did not convey

all of her observations to “the officers at the time.” App.,

infra, 22a. McCarthy is a disinterested witness, but the

majority ignored her testimony in favor of controverted

testimony supporting Defendants’ versions of events. Cf.

Reeves, 530 U.S. at 151. See also App., infra, 65a n.34

(as the dissent explained, “The majority’s position that

McCarthy’s deposition testimony is inconsistent with

the statement she gave to state police investigators is

not supported by my reading of the record. The majority

opinion has reduced McCarthy’s twenty-three-minute

24

interview to one sentence. Although McCarthy stated

at the interview that she ‘didn’t really get a look at’

Root’s face to describe his features with particularity,

she described the expression on his face several times.

McCarthy stated that Root looked like there were ‘lights

on[,] no one home’ and that his eyes looked ‘pretty vacant.’

She also stated that ‘[i]t could have been shock that was

on his face’ and that when the cops arrived his expression

did not change and ‘[h]e didn’t seem to . . . know

what was going on.’”) (alterations in original) (internal

citations omitted). McCarthy’s testimony “alone provides

a reasonable factfinder with an alternative account as

to what Root’s behavior and abilities were prior to the

shooting.” App., infra, 78a.

Third, the majority drew unreasonable inferences

in the moving Defendants’ favor while refusing to draw

reasonable inferences in Petitioner’s favor. For instance,

the majority inferred that Root was “fleeing in close

proximity both to the officers and to members of the

public . . . present in the parking lot (such as McCarthy).”

App., infra, 31a. But there was absolutely no evidence

that Root tried to flee from the mulch near the parking

lot. Indeed, Defendants Godin, McMenamy, and Conneely

testified that Root was not fleeing, and those and other

Defendants testified that Root was “on the ground,” was

on his knees, was sitting on the ground, was “like in a half

lying, half kneeling type of position,” was “lying, kneeling”

but “was never able to get up,” and was not running away.

The majority also inferred that Root had the cognitive

capacity to understand and respond to police commands

in Brookline immediately before the fatal shooting despite

his obvious injuries. App., infra, 30a. In addition, the

majority noted that the forensic expert “did not discuss

any possible impact of the day’s rainy weather on [her]

25

conclusion” that “the BB gun would have been damaged

and had blood on it had it been in Root’s hand at the time

of the shooting.” App., infra, 23a. But the evidence showed

that the light rain on February 7 did not wash away Root’s

blood on the road, as reflected in the following photos

taken at the scene in Brookline:

Zoomed-in versions of photos taken outside of Root’s car

showing blood on the road. See Petitioner’s Summary

Judgment Exhibit 29 (District Court Dkt. No. 89-29).

26

In comparison to those inferences in Defendants’ favor,

the majority expressly concluded that, despite McCarthy’s

testimony about Root’s condition and the forensic expert’s

opinions about Root’s injuries, no reasonable juror could

infer that Root “could not have reached his right hand

under his jacket.” App., infra, 35a.

In sum, this is not merely a case of the court

below misapplying established standards. Instead, the

majority forged new summary judgment principles,

which will impact summary judgment in future cases

within the First Circuit, regardless of the type of case

or cause of action. See Section C, infra (citing recent

case demonstrating that the majority decision is already

impacting summary judgment jurisprudence in the First

Circuit). Lower courts and litigants are now left to square

the majority’s new approach with longstanding Supreme

Court and First Circuit precedent. This type of rogue

judicial lawmaking—which undoes years of established

case law, thereby injecting additional and unwarranted

unpredictability into civil litigation—warrants a grant

of certiorari.

B. The Majority Decision Creates a Circuit Split

Concerning the Standards Governing the Use of

Force.

It is well-established that, before using deadly force,

police must consider whether it is justified by the totality

of the circumstances. Tennessee v. Garner, 471 U.S. 1, 8–9

(1985). Reasonableness depends on the circumstances “at

the moment” the force is applied. Graham v. Connor, 490

U.S. 386, 396 (1989)); see also McKenney v. Mangino, 873

F.3d 75, 81 (1st Cir. 2017) (“Timing is critically important

in assessing . . . reasonableness . . . .”).

27

Stemming from these rules are two fundamental

principles that the majority below rejected, thereby

creating a split of authority in the standards governing

police use of force. First, police officers must reassess

chang ing circumstances because, even if deadly

force is “‘reasonable at one moment,’ [it] may ‘become

unreasonable in the next if the justification for the use

of force has ceased.’” McKenney, 873 F.3d at 82 (citation

omitted); see also Mason v. Lafayette City-Parish Consol.

Gov’t, 806 F.3d 268, 277 (5th Cir. 2015) (same); Fancher

v. Barrientos, 723 F.3d 1191, 1201 (10th Cir. 2013) (same).

When circumstances have “meaningfully changed,” the

reasonableness of force depends on those changes. See

Lachance v. Town of Charlton, 990 F.3d 14, 25–26 (1st

Cir. 2021) (affirming use of “segmented approach” in

analyzing applicability of qualified immunity to uses for

force separated by “a change in circumstances”); accord

Brockington v. Boykins, 637 F.3d 503, 507 (4th Cir. 2011)

(“[I]t is possible to parse the sequence of events as they

occur; while a totality of circumstances analysis still

remains good law, if events occur in a series they may be

analyzed as such.”).

Second, because the use of deadly force against an

incapacitated suspect is unconstitutional, police must

consider the suspect’s condition in assessing whether the

suspect poses an immediate threat. See, e.g., Graham,

490 U.S. at 396 (reasonableness depends on, among other

factors, “whether the suspect poses an immediate threat

to the safety of the officer or others”); Tan Lam v. City

of Los Banos, 976 F.3d 986, 1002 (9th Cir. 2020) (“[A]n

officer violates a clearly established right when he shoots

an incapacitated suspect who no longer poses a threat,

even if the suspect previously had a weapon and stabbed an

28

officer.”) (citation omitted); Estate of Jones by Jones v. City

of Martinsburg, W. Va., 961 F.3d 661, 669 (4th Cir. 2020)

(“[I]t was clearly established in 2013 that officers may not

use force against an incapacitated suspect.”); Fancher,

723 F.3d at 1201 (officer not entitled to qualified immunity

where he “fired six shots into a suspect who was no longer

able to control the vehicle, to escape, or to fire a long gun,

and thus, may no longer have presented a danger . . . Prior

to shooting [the suspect], [the officer] stepped back, felt

safer, and noticed [the suspect] slump. This allowed him

enough time . . . to recognize and react to the changed

circumstances and cease firing his gun.”) (internal

quotation marks and citations omitted); Brockington, 637

F.3d at 508 (“[I]t is just common sense that continuing to

shoot someone who is already incapacitated is not justified

under these circumstances.”).

The majority intentionally abandoned these principles

by allowing police in the field, and courts months or years

later, to pick and choose the circumstances to consider

in assessing the reasonableness of the use of force.

In particular, the majority failed to consider evolving

circumstances and faulted the dissent for doing so.

App., infra, 29a–31a. The majority expressly viewed an

unduly narrow selection of the events of February 7 as a

continuum, starting with the BWH shooting, continuing

with the pursuit, and ending with the fatal shooting—

where the majority concluded that the earlier events

justified Root’s death. App., infra, 30a–31a. Indeed, the

majority’s summary of the events preceding the fatal

shooting completely omitted the car accident and Root’s

condition:

29

The officers also had every reason to believe

Root posed a continuing and immediate threat

to them and the public: Officer Godin had

witnessed Root fire his gun at him at BWH.

[9]

Just moments before the shooting, Root

had led [the officers] in a car chase through an

urban area at high speeds, ignoring the officers’

attempt[s] to pull him over, act[ing] with

complete disregard for [the officers’] safety or

the safety of anybody else that might have been

on the street,’ and causing a serious collision.

And throughout his interactions with the

officers, Root did not comply with lawful orders

meant to defuse the situation and eliminate the

danger he posed.

App., infra, 30a (alterations in original) (internal quotation

marks and citation omitted). Then, in a clear break

from precedent, the majority criticized the dissent for

“seek[ing] to separate the shooting in Brookline from the

context of the morning’s events [and] arguing the officers’

‘justification for the use of force ha[d] ceased’ before they

arrived at the scene in Brookline.” App., infra, 31a.

The dissent concluded that “whether a reasonable

officer on the scene could believe [Root] posed an

immediate threat, and whether he was escalating the

situation . . . are subject to competing evidence in the

record and require making factual conclusions resolving

those conflicts as to the essential time period.” App., infra,

73a. As the dissent explained,

9. Root did not carry a firearm; he possessed only an

unloaded paintball marker.

30

The majority opinion points to a number of

reasons why the officers “had every reason

to believe” Root posed an immediate threat

to them and the public, including that at the

hospital Godin had witnessed Root pull the

trigger on what Godin [incorrectly] believed

was a gun and that the officers had been

involved in a car chase with Root. . . . However,

this overlooks the immediacy requirement

and our case law that affirms that “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.’”

App., infra, 73a n.40 (emphasis in original) (quoting

McKenney, 873 F.3d at 82).

In two recent cases—cited in Petitioner’s appellate

briefs below—the Fourth Circuit addressed the Fourth

Amendment issues present here and concluded that factual

disputes over the reasonableness of the use of deadly

force precluded summary judgment. In Estate of Jones by

Jones v. City of Martinsburg, W. Va., the Fourth Circuit

reversed entry of summary judgment for officers where

they shot and killed a man, Jones, whom the jury could

“reasonably find . . . was incapacitated.” 961 F.3d at 669.

Before the shooting, Jones “had been tased four times,

hit in the brachial plexus, kicked, and placed in a choke

hold, at which point gurgling can be heard in the video

[footage]. A jury could reasonably infer that Jones was

struggling to breathe.” Id.

[T]he officers contend[ed] that Jones should have

dropped the knife upon their commands . . . But

31

again, the fact that he did not move or respond

corroborates that he was incapacitated, and the

reasonable officer would have recognized that

fact. Indeed, [one officer] reported that Jones

“did not make any overt acts with the knife

towards the officers,” and [another] reported

that Jones “wasn’t f**king doing nothing.”

And yet five officers wasted no time, giving

Jones mere seconds to comply before firing.

The officers shouting “drop the knife” seconds

before shooting him was, at best, farcical

because it was impossible for an incapacitated

person to drop a knife tucked into his sleeve.

Id. at 670. Here too, Petitioner presented evidence

that Root was severely injured, gurgling, struggling to

breathe, and not verbally responding to the officers. A

jury could reasonably conclude that he was incapacitated

and that the officers acted unreasonably in giving him only

seconds to comply with contradictory commands before

killing him, particularly given McCarthy’s testimony that

he was unresponsive and in extremis immediately before

the 31 shots were fired.

In Franklin v. City of Charlotte, police officers

responded to 911 calls reporting that a man at a Burger

King, Danquirs Franklin, was threatening people with

a firearm. 64 F.4th 519, 525 (4th Cir. 2023). Before the

officers arrived, Franklin went into the parking lot and

crouched next to a parked car. Id. The officers “exited

their vehicles, weapons drawn. Immediately each officer

shouted, ‘Let me see your hands,’ and ‘Let me see your

hands, now!’—a total of four commands.” Id. at 526. The

officers then “changed their commands to variants of

32

‘Drop the gun!’ . . . ‘Drop the weapon!’ . . . ‘Put it on the

[g]round!’” Id. “As the officers barked instructions to drop

his weapon, Franklin’s body stayed still. Finally, without

moving his head or legs, Franklin slowly reached into

the right side of his jacket and retrieved a black handgun

with his right hand.” Id. One officer fired twice, striking

Franklin’s left arm and abdomen. Id. “As he slumped

against the open car door, Franklin looked in the officers’

direction with a face of shock and uttered his final words:

‘You told me to.’” Id. at 526–27.

In reversing the district court’s finding that the officer

was entitled to qualified immunity, the Fourth Circuit

scrutinized the officers’ commands:

[T]he instructions the officers gave to Franklin

to drop his weapon conflicted with their earlier

orders and put Franklin in an awkward position.

Although she first demanded to see Franklin’s

hands, Officer Kerl could not even see Franklin

when she issued that command. She had no way

of knowing if Franklin attempted to comply

with that initial command because, by the

time she could see him, she and her partner

had abandoned that instruction in favor of one

ordering Franklin to drop his weapon. But they

could not see a gun either—they apparently

assumed he had one in his hands, which were

obscured between his legs.

Id. at 532. BWC footage “reveal[ed] that Franklin”

responded to the officers by saying, “I heard you the first

time.” Id. The content of his response “d[id] not seem

to matter” because “officers were so boisterous that

33

neither recalled hearing him say anything.” Id. Because

“Franklin’s gun was concealed under his jacket, not in

his hands . . . the only way for him to obey the officers’

commands to drop the gun was to reach into his jacket

to retrieve it.” Id. The defendant officer “interpreted his

movement as a threatening maneuver.” Id.; see also id.

at 535 (“[The officers’] (inconsistent) commands were

ineffectual because the officers could not see his hands

at all and Franklin could not comply without handling

his weapon.”). The present case is strikingly similar

to Franklin, presents a situation were neither the gun

nor the threat was real, and should be resolved the way

Franklin will be—by a jury.

The First Circuit now stands on the opposite side

of a gaping Fourth Amendment schism from its sister

circuits. On one hand, the Fourth Circuit faithfully applies

Supreme Court precedent in wading through the summary

judgment record in police use of force cases. It identifies

areas where the evidence diverges, draws inferences in

favor of the nonmovant, and properly recognizes that a

trial is the only mechanism for determining liability.

And the Fourth Circuit and other circuits continue to

recognize that “a clear break in the sequence of events”

leading up to a police shooting renders the use of deadly

force unreasonable, even if it had been reasonable only

seconds before. Brockington, 637 F.3d at 507; see also

Mason, 806 F.3d at 277 (“Although the record reflects

that there was a break between the first five and last

two shots that struck Mr. Mason, and that Mr. Mason lay

on the ground when the final two shots were fired, the

district court did not expressly address whether Faul’s

use of his firearm was justified throughout the encounter.

34

We conclude that genuine issues of material fact arise

regarding the final two shots that struck Mr. Mason

. . . .”). The First Circuit has now rejected that rule by

determining that Root was supposedly a threat at the time

of the fatal shooting based on the earlier incident at BWH

and the subsequent pursuit—despite the intervening

car accident that left him nearly dead—and expressly

condemning the dissent for recognizing the separation

between “the morning’s [previous] events” and the fatal

shooting in Brookline. App., infra, 30a–31a.

Whether someone shot by police can advance a case

against the officers to trial should not depend on the

location within the country where the person is shot. Yet

had Root been killed and Petitioner had brought this

case within the Fourth Circuit—rather than the First—

given the factual similarities among this case, Jones, and

Franklin, this case likely would have survived summary

judgment, and Petitioner would be able to assert her

brother’s constitutional rights before a jury. Certiorari is

appropriate in situations like this where federal law does

not apply equally throughout the country.

C. This Case Presents Exceptionally Important

Questions that Warrant Review.

The questions presented here are exceptionally

important because they reach far beyond this case. The

majority decision implicates the summary judgment

standards that district courts within the First Circuit

will apply in every civil case and the police’s, the public’s,

litigants’, and the courts’ conceptions of assessing the

reasonableness of the use of deadly force. This concern

is real and has already played out. Indeed, in the few

months since the First Circuit issued its opinion here, it

35

issued an opinion in another case adopting the majority’s

summary judgment approach to engage in factfinding and

support its affirmance of summary judgment in favor of

a defendant on the ground that the plaintiff failed to put

forth sufficient evidence. See Caruso v. Delta Air Lines,

Inc., No. 22-1175, --- F.4th ---, 2024 WL 3886629, at *12

n.10 (1st Cir. Aug. 21, 2024).10 Like here, a judge on the

panel in Caruso dissented, concluding that

[t]he majority is flat wrong to say that Caruso

raises not even one material fact in reasonable

dispute under governing law on whether Delta

adequately investigated her sexual-assault

charge . . . Caruso and Delta engage in a factual

scrum. And the majority joins Delta’s side. But

because summary judgment isn’t a time for

factfinding by judges (district or circuit)—that’s

what trials are for—we must accept (for present

purposes only) Caruso’s properly documented

account (without vouching for its accuracy),

resolving evidentiary conflicts, credibility calls,

and competing inferences in her favor (even

though a jury might later find Delta’s story

more believable).

Id. at *16 (Thompson, J., dissenting) (emphasis in original).

The First Circuit’s engagement in factfinding and

foray into new and unsupported summary judgment rules

is particularly concerning for Fourth Amendment cases.

As this Court has explained,

10. The two judges in the majority in this case and in Caruso

are the same judges, and both majority opinions were authored by

the same judge. The dissenting judge on each panel is different.

36

[s]pecificity is especially important in the

Fourth Amendment context . . . [because] it is

sometimes difficult for an officer to determine

how the relevant legal doctrine, here excessive

force, will apply to the factual situation the

officer confronts. Use of excessive force is an

area of the law in which the result depends very

much on the facts of each case . . . .

City of Escondido v. Emmons, 586 U.S. 38, 42 (2019)

(citation omitted). The majority below complicated, rather

than simplified, Fourth Amendment law by blazing a new

standard that absolves officers from having to reassess

whether the totality of the circumstances justifies the use

of deadly force. If officers believe a suspect previously

posed a threat, they can kill him even when an intervening

event captured on surveillance video injures the person to

within an inch of his life, as testified to by an independent,

EMS-certified bystander. The majority’s ruling will

impact how officers throughout the circuit respond to

high-stress situations and, concomitantly, the safety of

the public.

Courts now may act as a factfinder at the summary

judgment stage and accept police officers’ testimony

as true despite contrary evidence and the officers’

demonstrated incredibility. This will deny plaintiffs and

the public a meaningful opportunity to have use of force

cases decided by juries. These fundamental changes to

summary judgment and Fourth Amendment standards,

and the resulting wide-ranging consequences, raise issues

of exceptional importance that merit a grant of certiorari.

N.S. v. Kansas City Bd. of Police Comm’rs, 143. S. Ct.

2422, 2423 (2023) (Sotomayor, J., dissenting) (“[Summary

37

judgment standards] ensure[] that it is a jury that will

hear evidence and determine which story is credible, not

a judge reading a paper record. This role of the jury is

particularly important in qualified immunity cases, where

the stakes are not just about the parties involved, but

whether there will be accountability when public officials

violate the Constitution.”).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Mark A. Berthiaume

Counsel of Record

Gary R. Greenberg

Peter A lley

A lison T. Holdway

Greenberg Traurig, LLP

One International Place,

Suite 2000

Boston, MA 02110

(617) 310-6000

berthiaumem@gtlaw.com

Attorneys for Petitioner

September 9, 2024

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT, FILED APRIL 22, 2024 . . . . . . 1a

A P P E N DI X B — O P I N ION O F T H E

UNITED STATES DISTRICT COURT

OF M A SSACHUSETTS, FILED

DECEMBER 5, 2022 . . . . . . . . . . . . . . . . . . . . . . . . . 90a

A PPEN DI X C — OR DER OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E F I R S T CI RCU I T, F I L ED

JUNE 10, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109a

APPENDIX D — CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED . . . . . 111a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

FIRST CIRCUIT, FILED APRIL 22, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 22-1958

JENNIFER ROOT BANNON, AS THE SPECIAL

PERSONAL REPRESENTATIVE OF THE

ESTATE OF JUSTON ROOT,

Plaintiff, Appellant,

v.

DAVID GODIN, BOSTON POLICE OFFICER;

JOSEPH MCMENAMY, BOSTON POLICE

OFFICER; LEROY FERNANDES, BOSTON

POLICE OFFICER; BRENDA FIGUEROA,

BOSTON POLICE OFFICER; COREY THOMAS,

BOSTON POLICE OFFICER; PAUL CONNEELY,

MASSACHUSETTS STATE TROOPER;

THE CITY OF BOSTON,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

Hon. Richard G. Stearns, U.S. District Judge

2a

Appendix A

Before Gelpí, Lynch, and Montecalvo, Circuit Judges.

April 22, 2024, Decided

LYNCH, Circuit Judge. On February 7, 2020, after

Juston Root pointed a gun at a hospital security guard

and a responding Boston police officer, shot that gun at

police and disregarded police instructions to drop the

weapon, led the officers on a high-speed chase down busy

urban streets and crashed his Chevrolet Volt, and then ran

from the officers and disregarded further commands to

stop and drop his gun, six law enforcement officers from

two separate law enforcement agencies responding to the

reports of his activities fired at him, all simultaneously

perceiving that he was again reaching for his gun. Their

shots proved to be fatal. After the event, the officers

confirmed that he indeed had a gun on his person at the

time of the shootings and was carrying two additional

guns in his car.

His sister, Jennifer Root Bannon, acting as the

representative of his estate, sued six of the officers

involved – Massachusetts State Trooper Paul Conneely

and Boston Police Department (“BPD”) Officers Leroy

Fernandes, Brenda Figueroa, David Godin, Joseph

McMenamy, and Corey Thomas – and the City of Boston

(“City”), alleging, inter alia, that the officers employed

excessive force in violation of the Fourth Amendment

during the fatal shooting. The district court granted

summary judgment to the defendants. See Bannon v.

Godin, No. 20-cv-11501, 2022 U.S. Dist. LEXIS 218303,

2022 WL 17417615, at *1 (D. Mass. Dec. 5, 2022).

3a

Appendix A

We agree with the district court’s conclusion that

the officers acted reasonably under the circumstances

during the fatal shooting and so did not violate the Fourth

Amendment. We independently hold that the officers are

entitled to qualified immunity. We also affirm the grant

of summary judgment on Bannon’s other claims.

I.

A.

At roughly 9:20 a.m. on the morning of February 7,

2020, BPD received a report of an individual with a gun

at Brigham and Women’s Hospital (“BWH”).1 A BPD

dispatcher relayed the information that a man had pulled

a gun on BWH security. Officer Godin responded to the

call, as did BPD Officer Michael St. Peter.

Upon arriving at BWH, Officer Godin was approached

by a hospital security officer who said that a man had just

pointed a gun at him. The security officer pointed out the

man’s location to Officer Godin, who parked his cruiser

and ran toward Vining Street, in the direction the security

officer had pointed. As he turned onto Vining Street,

Officer Godin saw a man in an unzipped black jacket, later

identified as Root, walking toward him. Officer Godin

observed that Root had a gun in his waistband. Bannon

does not contest this point. 2

1. BWH is a level one trauma center hospital with over 800

patient beds. It conducts roughly 50,000 inpatient stays and 2.25

million outpatient encounters per year.

2. Later evidence showed that the gun was one of two

paintball guns Root had in his possession in addition to a BB gun.

4a

Appendix A

Root falsely told Officer Godin that he (Root) was

“law enforcement” and then turned and pointed up the

street. Officer Godin did not believe that Root was law

enforcement because law enforcement officers do not carry

their firearms in their waistbands. Officer Godin drew his

firearm and continued to approach Root. When Officer

Godin and Root were within a few feet of one another,

Root removed the gun from his waistband and pointed it

at Officer Godin.

During this interaction, Officer St. Peter arrived on

the scene. He too saw Root holding a gun in his hand. He

ordered Root to “drop the gun.” Civilian witnesses later

told investigators that they also saw Root holding a gun.

Officer Godin saw Root start to pull the trigger on

his gun and heard “gunshot noises.” In response, Officer

Godin shot at Root several times. As he did so, Officer

Godin fell backward into the street. After seeing Root

point his gun at Officer Godin and hearing shots, Officer

St. Peter also shot at Root. Multiple civilian witnesses

later told investigators that they believed Root had pulled

the trigger and fired shots. Both Officer Godin and Officer

St. Peter believed Root had been shot.

Still carrying the gun, Root limped to his car, a silver

Chevrolet Volt which was parked nearby, and drove away.

Officer Godin returned to his cruiser and began

pursuing Root. He also stated over the cruiser’s radio that

he had been involved in a shooting, that he had been shot

at, and that he believed he had shot the suspect.

5a

Appendix A

Additional BPD officers, including Officers Fernandes,

Figueroa, McMenamy, and Thomas, joined the pursuit,

which traveled down Huntington Avenue. 3 These officers

understood Root was armed with a gun.

During the pursuit, Officer McMenamy intentionally

struck the side of Root’s Volt with his cruiser, in what the

parties refer to as a “Precision Immobilization Technique

(‘PIT’) maneuver.” Officer McMenamy stated during a

deposition that, at the time of the collision, the vehicles

were moving at approximately twenty to thirty miles per

hour. He also acknowledged that he had been aware at the

time that the maneuver violated BPD policy, which forbids

intentionally colliding with a pursued vehicle. The collision

brought both vehicles to a stop. Officer McMenamy got

out of his cruiser, drew his firearm, and ordered Root to

show his hands. Root did not obey, rather Root not only

drove away at high speeds, but used his Chevrolet Volt to

push Officer McMenamy’s cruiser out of the way to do so.

The high-speed pursuit continued down Huntington

Avenue and on to Route 9, 4 moving from Boston to

Brookline. Root’s Volt reached speeds of up to ninety miles

per hour, and traffic camera footage shows him weaving

3. Huntington Avenue is a major, crowded urban artery used

by cars, buses, MBTA trollies, and other forms of transportation,

particularly so on a weekday morning.

4. Route 9 separates from Huntington Avenue west of the

BWH campus and continues into Brookline. Like Huntington

Avenue, it is a major urban thoroughfare serving large numbers

of cars, buses, bikes, and pedestrians.

6a

Appendix A

dangerously through other vehicles at high speeds. At

some point along Route 9, State Trooper Conneely joined

the pursuit, having heard over his radio that shots had

been fired at BWH and that a pursuit was ongoing.

At the intersection of Route 9 and Hammond Street

in Brookline, Root’s Volt collided with three civilian

vehicles and came to a stop on Route 9 near the entrance

to a shopping center parking lot. The collision caused

extensive damage to Root’s Volt; multiple tires fell off,

glass shattered, and the airbags deployed. 5

Several sources of evidence consistently describe

the events that occurred at the site of Root’s collision

in Brookline. Traffic camera footage, officer bodyworn cameras, and civilian cell phone footage captured

documentary evidence of the events and officers’

contemporaneous statements. Officers and witnesses also

described the events in interviews with investigators in

the days following the shooting and, in some cases, in later

depositions in this case. We describe each in turn.

1. Documentary Evidence of Shooting in Brookline

Traffic camera footage shows that, at the time of the

collision and throughout the confrontation that followed,

which occurred at roughly 9:30 a.m. on a Friday, there

were numerous cars in the parking lot and a steady stream

of traffic down the opposite side of Route 9.

5. Several of the individual defendants stated in their

depositions that they observed that the collision was severe when

they arrived at the scene moments later.

7a

Appendix A

Root got out of his car and continued fleeing on foot.

He moved toward a mulched area adjacent to the parking

lot’s entrance. He fell on the sidewalk but rose to his feet

and continued into the mulched area, where he fell again.

Shelly McCarthy, a civilian with EMS training who

had been in her car in the parking lot, saw Root leave his

vehicle and ran to his side. McCarthy spent less than ten

seconds by Root’s side. Multiple approaching officers,

including at least Officers Godin and McMenamy, ordered

her to get away from Root, and she did so at a run.

Officer Figueroa’s body-worn camera was recording

throughout the confrontation in Brookline. Officer

Figueroa ran to the mulched area and ordered Root to

“get down” and to “let [her] see [his] hands.” Her camera

recorded audio of several other officers giving similar

commands. Officer Figueroa adopted a stance which

blocked the camera’s lens as officers continued to order

Root to get on the ground and show his hands. Just before

officers fired, the camera recorded an officer begin a

command to Root to “drop. . . .”

Officer Figueroa’s camera footage shows that after

he was shot, Root fell over in a fetal position on his right

shoulder facing the officers, with his chest area rolled

partially toward the ground.

Officer Figueroa’s body-worn camera recorded that

she and Trooper Conneely, along with other officers,

8a

Appendix A

approached Root immediately after the shooting. The

footage shows officers roll Root over and secure his hands.

The footage shows Trooper Conneely reach into Root’s

chest area. An officer asks, “Where is the firearm?” and

Officer Figueroa responds, “It’s under – it’s underneath

him.” An officer then says, “I got it, I got it, I got it, it’s

secure,” and Trooper Conneely walks away with a gun in

his right hand. The camera recorded Trooper Conneely

with Root’s gun in his right hand roughly five seconds

later and again roughly a minute later.

Shortly after the shooting, Officer McMenamy’s bodyworn camera recorded him stating to another officer

present that after he had ordered McCarthy to run “[Root]

starts – he opens the thing and he starts reaching for it

he’s got it right there he starts reaching for it on me and

that’s when uh.” The camera similarly recorded Trooper

Conneely characterize Root’s actions as “suicide by cop.”

The six officers fired a total of thirty-one shots,

all within three seconds. From the time McCarthy

reached Root (and then left) to the time of the shooting,

approximately ten seconds elapsed. After McCarthy left

Root’s side, she did not see him again, including at the

time of the shooting. She therefore did not witness Root’s

position and actions immediately prior to and during

the shooting. Root was transported by ambulance to a

hospital, where he was pronounced dead.

9a

Appendix A

2. Involved Officers’ Statements to Investigators and

Later Deposition Testimony

Each involved officer gave statements as part of

police investigations, and Bannon later deposed the six

defendant officers in this case. Massachusetts state police

investigators assigned to the Norfolk County District

Attorney’s Office conducted at least fourteen interviews

of witnesses or officers involved, including interviews of

all six officers who fired at Root, between February 7

and 14, 2020. Officers from BPD’s Firearm Discharge

Investigation Team (“FDIT”) participated in most of

these interviews as part of BPD’s own investigations.6

Bannon also deposed each officer defendant. Each officer

testified consistently with his or her own prior statements

to investigators and consistently with his or her fellow

officers’ statements and testimony. We summarize the

relevant statements from each officer in turn beginning

with his or her arrival at the Brookline scene.

Officer 1: Joseph McMenamy

The first arriving officer, Officer McMenamy, was

interviewed by Massachusetts state police and FDIT

investigators on February 12, 2020. In that interview,

Officer McMenamy stated that he was the first officer to

pull up to the scene where Root crashed his vehicle. He

6. BPD Sergeant Detective John D. Broderick, Jr., of the

FDIT filed a report as to weapon discharges at the BWH scene on

February 7, 2020. BPD Sergeant Detective Marc Sullivan of the

FDIT filed a report as to the discharges at the Brookline scene

on June 29, 2020.

10a

Appendix A

stated he “saw . . . a white male stumbling around running

towards” the shopping center parking lot and that Officer

McMenamy “ran . . . directly towards [Root].” Officer

McMenamy stated “a woman . . . civilian . . . was running

or walking up to him to help him out . . . and [Officer

McMenamy] ordered the woman to get away, . . . and she

did immediately.” Officer McMenamy stated:

I . . . pointed my . . . firearm at [Root], ordering

him to get on the ground, show me your hands

. . . several times as I’m still running . . . or[]

walking . . . at a fast pace towards [Root]. [Root

is] kinda crouching down, but he’s standing,

but crouching down looking at me, and I’m still

telling him to get on the ground, and he’s just

not, kinda fumbling around, and that’s when I

got real close to him, and I walked towards him,

and I put my left leg up, and kicked him – not

kicked him but like, with the, with the flat of

my foot like it was in a soccer kick, like I put

my foot up like 90-degree angle and kicked him

down to the ground with my left leg.

Officer McMenamy stated that he “believe[d] [Root] stood

back up” and while he and another officer continued to

order Root to show his hands Root instead:

with his left hand, started grabbing at his jacket

. . . which was unzipped at the time – grabbing

at his jacket, which revealed . . . the backside

and the handle of a, a pistol . . . that looked like

it was holstered. . . . [Root’s] left hand grabbed

11a

Appendix A

the jacket, and his right hand went to go reach

for the . . . handgun, and that’s when [Officer

McMenamy] fired.

Bannon deposed Officer McMenamy on December 7,

2021. Consistent with his interview statements, Officer

McMenamy testified at deposition that he was the first

officer to arrive at the scene after Root crashed his

vehicle and continued fleeing on foot. Officer McMenamy

described Root as moving “slumped over as if he was in

some pain” and moving at a speed “faster than a walk.”

Officer McMenamy testified he saw McCarthy reaching

out to Root and he began “running up to him [and]

commanding her to get away,” which she did. He testified

he approached Root and “observed both of his hands . . .

underneath his chest.” Officer McMenamy testified that

he ordered Root to “‘[l]et me see your hands,’ and ‘[g]et

on the ground,’” that Root was “moving away . . . little by

little . . . in a crouched position,” and that “when [Officer

McMenamy] got within reaching distance of [Root], . . .

[Officer McMenamy] picked up [his] left leg, and [he]

pushed [Root] to the ground with [it].” Officer McMenamy

testified that Root, now six to eight feet away from him,

returned to his feet, opened up his jacket, and reached for

what “looked like a black gun” with his right hand. Officer

McMenamy testified that he fired at Root in response.

Officer 2: Paul Conneely

The second arriving officer, State Trooper Conneely,

was i nt er v iewed by Massachusett s st at e pol ice

investigators on February 14, 2020. In that interview

Trooper Conneely stated:

12a

Appendix A

[I saw Root] had fallen on the mulch, there’s

a mulch area there. . . . I thought he was just

struggling to get up or a Boston cop had tripped

him. . . . So I get out [of my cruiser]. I run up

onto the sidewalk. He’s kind of going down,

trying to get up. He’s getting up on one knee

As I went to go tackle him a Boston officer to

my left . . . yelled he’s got a gun, he’s got a gun,

and it’s on his chest, he’s grabbing it, and they

were yelling. . . . All the proper orders were

given. I had my gun out. He reached into his

chest I saw that he had come up and at that

point you know, he’s going to pull a gun on us.

We’re not getting shot. . . . I’m going to protect

everyone around us and protect the public so I

fired my rounds.

Consistent with Officer Figueroa’s body-worn camera

footage, Trooper Conneely stated:

There was a female officer to my right. I told her

we’re going [to] put our gloves on. We’re going to

go up, take him in custody. . . . We approached. I

grabbed his left. She came around to my right.

She took custody of his right hand. As I was

holding his left hand and she pulled his right

hand the gun was in his right hand. Um, she

pulled his hand out. I reached in underneath

him and I took control of the gun.

Bannon deposed Trooper Conneely on January 12,

2022. Consistent with his interview statements, Trooper

13a

Appendix A

Conneely testified at deposition that when he arrived, he

saw “Root trying to get up and get away.” He testified he

gave Root a command “along the lines of [] ‘[s]tay down

on the ground and show me your hands.’” He testified

that Root’s hands were on the mulch and he was trying

to push himself up, and that Root “was not prone to

the ground” but “never got to a fully upright position.”

Trooper Conneely testified that he “contemplate[d] . . .

tackling [Root]” but heard an officer yell, “[g]un. He’s

got a gun,” and Trooper Conneely “immediately backed

off.” Trooper Conneely testified he then “saw a black

handle coming out of [Root’s] vest. He had it strapped to

his chest,” and that Root moved his right hand “inside

his jacket” and Trooper Conneely “saw a black handle,

[Root’s] hand around a black handle coming up.” Trooper

Conneely then fired five shots at Root. Trooper Conneely

testified that when he and Officer Figueroa approached

Root to secure his hands, he found Root’s gun “in [Root’s]

right hand under his body when [Trooper Conneely] rolled

him to gather his left hand.”

Officer 3: Corey Thomas

The third officer,7 Officer Thomas, was interviewed

by Massachusetts state police investigators on February

12, 2020. During that interview Officer Thomas stated:

[W]e get to the [mulched area]. I, I see him.

He’s on the ground. . . . I’m to his left ’cause

7. The record does not make clear exactly when the remaining

four officers arrived except that it was after Officer McMenamy

and State Trooper Conneely arrived.

14a

Appendix A

he’s facing all the other officers. I have my

gun drawn. I’m givin’ him verbal commands,

“let me see your hands! Get on the ground!”

. . . I’m hearing other officers give out multiple

commands. . . . [H]e wasn’t moving his hands in

a surrendering manner, as in like just showin’

us his hands and wasn’t complying. He kept

rustling his, his arms . . . they were like close,

close to his . . . body. . . . I’m from the side . . .

I can’t see his hands. I can only . . . see him

moving his arms, . . . erratically. . . . I heard

. . . one round go off and I actually thought all

right, he’s firing at officers and I, I discharged

my firearm.

Officer Thomas further stated that Root was “on the

ground . . . like in a half lying, half kneeling type of

position. . . . [H]e wasn’t standing or fully sitting.”

Bannon deposed Officer Thomas on December 16,

2021. Consistent with his interview statements, Officer

Thomas testified at deposition that he approached Root

and ordered him to “[l]et [him] see [his] hands” and

to “[g]et on the ground.” He testified that Root was

“stumbling” and “moving” while “in a half lying, half

kneeling type of position . . . on the ground”8 and was not

complying with orders to show his hands, instead “keeping

his hands close to his body” where Officer Thomas could

not see them and “moving very abruptly and aggressively

8. The dissent’s position that this testimony is inconsistent

with the statement Officer Thomas gave state police investigators

is not supported by the record.

15a

Appendix A

versus in a surrendering manner.” After Officer Thomas

heard gunshots and believed Root was firing at his fellow

officers, he fired at Root.

Officer 4: Leroy Fernandes

The fourth officer, Officer Fernandes, was interviewed

by Massachusetts state police investigators on February

12, 2020. During that interview Officer Fernandes stated:

I exit my motor vehicle, and I see officers

running towards . . . an area on this Route

9. . . . I . . . take out my department-issued

firearm, and I . . . follow officers who seem to

be in pursuit of the suspect. . . . [A]s we get to

this . . . grassy, patchy area . . . I observe the

suspect. . . . [A]t this time, all officers are giving

commands, . . . to[] show us your hands. . . .

[A]t this point, the male reaches into his, . . .

it appeared to be like a jacket of some sort,

reaches in as if he’s going to pull something and

at that point, shots were fired.

Officer Fernandes stated that by the time he joined the

officers, Root “seemed like as if he was trying to stand

but he wasn’t standing.”

Bannon deposed Officer Fernandes on January

19, 2022. At that time, consistent with his interview

statements, Officer Fernandes testified that he arrived

at the mulched area and saw Root “upright. . . . [M]aybe

16a

Appendix A

a little bit of a lean-type standing, not fully standing up.” 9

He testified that he and the other officers “issued verbal

commands to let [them] see his hands, which [Root] didn’t

comply with. He did the opposite, and reached into his

coat as if he was going to pull out a weapon, at which point

shots were fired.”

Officer 5: Brenda Figueroa

The fifth officer, Officer Figueroa, was interviewed

by Massachusetts state police investigators on February

12, 2020. During that interview, Officer Figueroa stated:

Obviously, this individual or this person that

we’re going after[] has a gun and has hurt

somebody already. . . . I’m going with a, a

hundred percent [certainty] I’m [pursuing]

a person with a gun. My gun was out. . . . I

see this individual on his knees. There were

maybe, I don’t know how many officers, but I

remember having a state trooper on my side

and we begged, . . . I mean we begged this

9. The dissent’s position that this testimony is inconsistent

w ith the statement Off icer Fernandes gave state police

investigators is not supported by the record. In particular, the

dissent seizes on one statement Officer Fernandes made at

deposition which he immediately clarified, and which the dissent

quotes out of context. Officer Fernandes’s full testimony was:

“He was standing. Well, upright. I would say maybe a little bit of

a lean-type standing, not fully standing up.” (Emphasis added.)

That statement is entirely consistent with Officer Fernandes’s

interview statement that Root “seemed like as if he was trying

to stand but he wasn’t standing up.”

17a

Appendix A

person to drop his gun, show us his hands and

I remember him smirk, like, a laugh. I see it, I

see the object coming out and I was afraid. . . .

I was afraid I was gonna get shot. Um, someone

else was gonna get shot. And as soon as I seen

it pulling out, I said either it’s me or someone

innocent is gonna get really hurt, and I pressed

my, I used my gun. I don’t recall how many

shots were fired.

Consistent with her body-worn camera footage, Officer

Figueroa stated during that interview that she and

Trooper Conneely then approached Root to “secure[] his

hands.” She stated she grabbed one of Root’s hands and

“[a]t that moment, . . . I remember seeing the, a black gun,

and that’s the gun that this person had on him.”

Bannon deposed Officer Figueroa on December

9, 2021. Consistent with her interview statements and

body-worn camera footage, Officer Figueroa testified at

deposition that when she arrived at the mulched area Root

was “kneeling” ten to fifteen feet away, facing the officers.

She testified that Root’s hands were “hiding underneath

his coat,” and that she and other officers ordered Root to

show his hands and gave similar commands. She testified

that Root “smirked” at the officers and “start[ed] taking

something out . . . of his jacket, and [Officer Figueroa]

s[aw] the handle of a firearm,” at which point she fired.

Officer Figueroa testified that she then approached the

body and found Root’s gun “under his body.”

18a

Appendix A

Officer 6: David Godin

The sixth officer, Officer Godin, was interviewed by

Massachusetts state police investigators on February 12,

2020. Officer Godin stated:

I saw [Root] laying up on the corner. He was in

like a, it was in front of like a shoppin’ plaza or

a side mall or whatever, but he was up on the

curb . . . it was like all muddy, and he was layin’

there, and I remember some lady going up to

him and we’re all yelling at her to get back. . . .

[There are] four or five other officers and we’re

tellin’ him, just, I’m just yellin’ at him to lay

on the ground with your hands out. Get on the

ground ‘cause he’s in like a seated position . . .

he was leaning to his right-hand side on a, like

a seated position, and we continue to tell him to

lay on the ground hands out, and I remember

him reaching with his right hand into his jacket,

and someone yelling gun, and at that time, I

fired my firearm. . . .

Bannon deposed Officer Godin on December 15, 2021.

Consistent with his interview statements, Officer Godin

testified at deposition that as he approached the mulched

area Root “was in a sitting position,” possibly “laying

halfway” “on his side” and that he ordered Root to “show

[him] his hands,” but Root did not do so. Officer Godin

further testified that he saw Root reach his right hand

“[i]nto his jacket,” and after hearing other officers yell

“gun,” he fired at Root.

19a

Appendix A

Non-party Officers Christopher Elcock and David

Wagner

Two other officers provided statements about the

recovery of Root’s gun consistent with Officer Figueroa’s

body-worn camera and Officer Figueroa’s and Trooper

Conneely’s interview statements and deposition testimony.

Massachusetts state police investigators interviewed

Brookline police officer and non-party Christopher Elcock.

A report summarizing that interview states that Elcock

“rolled the suspect over. In doing so, a handgun fell out of

the suspect’s chest area, which was subsequently removed

from the suspect’s proximity by an unknown party to

Elcock.” A similar report based on an interview with

Brookline police detective and non-party David Wagner

stated that Wagner “saw the suspect get rolled over, which

is when he observed a black semi-automatic firearm fall

out of the suspect’s chest area.”

3. Independent Witness Testimony by Dr. Victor

Gerbaudo Corroborating Officers’ Accounts

A medical doctor unaffiliated w ith any of the

defendants, Dr. Victor Gerbaudo,10 witnessed the incident

from Route 9 and was interviewed by Massachusetts

10. The dissent states that Dr. Gerbaudo was a former

reserve police officer. The record shows what Dr. Gerbaudo told

investigators was that he had been “a reserve police officer for the

Glendale Police Department in Los Angeles from 1989 ’til 1994.”

No evidence suggests that Dr. Gerbaudo has served as a reserve

police officer at any point in the twenty-six years between that

service and the events here.

20a

Appendix A

state police investigators on February 10, 2020. Dr.

Gerbaudo was a BWH doctor driving that morning to

BWH. A few moments before the shooting in Brookline

Dr. Gerbaudo received “a text message from [BWH]

telling [him] that there was . . . a shooter case going on

at [the hospital].” After driving ten more meters down

Route 9, Dr. Gerbaudo and the surrounding traffic came

to a “full stop” in response to police cars running lights

and sirens approaching from both directions of Route 9.

Dr. Gerbaudo described his location as “exactly in front

of the Star Market parking lot and [he] could see diagonal

to [his] left the CVS.” He stated:

I saw a white male, 5'11", 6 feet, bald or very

short hair, dressed with a black jacket . . .

walking on the sidewalk westbound limping.

....

[A]s he comes to exactly the location I’m in . . .

in my car, . . . he turns right towards the grass

area or like, little bump between the sidewalk

and the parking lot of the Star Market.

....

And as he reaches the top of that area, the

police cars had already arrived and police

officers were already on foot with their guns

drawn, running after him. . . .

....

21a

Appendix A

[I]t seemed to be that [the officers] were asking

[Root] to put his hands up, go down on his knees

or to the ground. And at the time, they actually

said probably three, four times while pointing

their guns at him. And he turned around facing

the officers and as he did that, he, with his right

hand, he took his right hand under his coat

and at the time that happened, um, the police

officers discharged their firearms on him.

(Emphasis added.) That statement fully substantiates the

officers’ versions of events.

Dr. Gerbaudo told investigators that, other than

identifying himself as a witness to a police officer on the

day of the shooting, he had not “talked to any other police

officers or detectives or anyone else” between witnessing

the shooting and giving his interview with investigators.

4. Statements from Civilian Witness Shelly McCarthy

Massachusetts state police investigators interviewed

McCarthy on February 7, 2020, just three hours after

the shooting. McCarthy told those investigators that she

“didn’t really get a look at” “[Root’s] face.”

McCarthy testified during her November 5, 2021,

deposition, some twenty-one months after the event and

her interview, as to her memory. She testified that, for

the entire period she observed Root, his right hand was

at his chest and his left hand was hanging by his side.

She further testified that, after Root fell in the mulched

22a

Appendix A

area, he was lying on his back; he attempted to turn onto

his shoulder, but was unable to do so and, in her opinion,

could not possibly have returned to his feet. She testified

that Root’s jacket was “covered in what appeared to be

blood,” that “[h]e was struggling to breathe” and “making

. . . gurgling noises with his breathing,” and that initially

his breath was “rapid.” McCarthy testified that “his eyes

[were] all over the place,” but his breathing became “very

slow,” and his eyes became “stuck in the back of his head,”

despite her having told officers during her interview

on the day of the shooting that she “didn’t really get a

look at” “[Root’s] face.” McCarthy did not convey these

observations to the officers at the time; she described

them only after the incident.

McCarthy testified that she was able to recall several

of the commands officers gave Root, including “[g]et

down!,” “[s]how me your hands!,” and “[s]tay down!”

Although McCarthy did not specifically remember hearing

any officer command Root to drop a gun, she also stated

that she wasn’t able to identify every single command the

officers gave given the “chaos.”

5. Post-shooting Evidence

Officers retrieved a black gun from Root’s person that

was later identified as a BB gun. Root’s hand had been

shot several times. In photographs taken at the scene, the

BB gun appeared to have been undamaged and did not

have any visible blood on it, although it was wet from the

rainy weather that day.

23a

Appendix A

Despite the fact that Root’s gun had not been tested

for blood evidence and relying entirely on the lack of blood

visible to the naked eye, Dr. Jennifer Lipman, a physician

retained as an expert witness by Bannon, opined that the

BB gun would have been damaged and had blood on it had

it been in Root’s hand at the time of the shooting. Her

opinion did not discuss any possible impact of the day’s

rainy weather on that conclusion.

An examination of Root’s vehicle and the surrounding

area showed substantial amounts of blood loss. The search

of Root’s vehicle also recovered two additional guns,

including the gun Root had pointed at BWH security staff

and fired at Officer Godin.

Dr. Lipman – Bannon’s expert medical witness –

opined that “[i]t is not possible to quantify the amount

of blood . . . Root lost inside the car, except to say that it

was significant.” She further opined that this blood loss

would have “rendered . . . Root physically and mentally

impaired” at the time of the Brookline shooting.

B.

Bannon’s complaint includes nine counts, of which

seven are relevant to this appeal.11 Counts One and Two,

brought under 42 U.S.C. § 1983 and the Massachusetts

Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12,

11. In August 2022, the district court granted Bannon’s

motion to voluntarily dismiss Counts Three and Four, which

alleged that the officers had violated Root’s due process rights.

24a

Appendix A

§§ 11H-11I, respectively, allege that the individual

defendants employed excessive force in violation of the

Fourth Amendment during the shooting in Brookline.12

Counts Eight and Nine are state law assault and battery

and wrongful death claims based on the same facts.

Counts Five and Six, brought under § 1983 and the MCRA,

respectively, allege that Officer McMenamy employed

excessive force in violation of the Fourth Amendment in

executing the PIT maneuver and in kicking Root during

the confrontation in Brookline. Count Seven is a § 1983

claim against the City alleging a failure to adequately

train and supervise the defendant BPD officers. The

complaint does not allege that the initial shooting at BWH

violated the Fourth Amendment, and Bannon does not

argue as much on appeal.

On August 8, 2022, following the completion of

discovery,13 the parties filed cross-motions for summary

judgment. Bannon sought summary judgment on her

claims against the individual defendants, though not on

her municipal liability claim against the City. The City,

Trooper Conneely, and the BPD officers (represented

separately from Trooper Conneely) each moved for

12. The complaint’s MCRA counts also allege that the officers’

use of force violated Article XIV of the Massachusetts Declaration

of Rights. No party cites this provision on appeal, so we do not

discuss it further.

13. Before filing an answer, the City moved to dismiss the

municipal liability count for failure to state a claim. The district

court denied the motion. See Bannon v. Godin, No. 20-11501, 2020

U.S. Dist. LEXIS 230093, 2020 WL 7230902 (D. Mass. Dec. 8,

2020). That decision is not before us in this appeal.

25a

Appendix A

summary judgment on all counts in which they were

named. After the parties filed their responses, the district

court heard argument on the motions in September

2022. The court also received post-hearing supplemental

briefing on the City’s alleged failure to train.

On December 5, 2022, the court g ranted the

defendants’ motions for summary judgment and denied

Bannon’s motion. See Bannon, 2022 U.S. Dist. LEXIS

218303, 2022 WL 17417615, at *1. The court reasoned

that summary judgment was appropriate on Bannon’s

excessive force, assault and battery, and wrongful death

claims because, construing the record in the light most

favorable to Bannon, no reasonable jury could conclude

that the officers had not acted reasonably in their use

of force, and so the officers had not violated the Fourth

Amendment. See 2022 U.S. Dist. LEXIS 218303, [WL]

at *3-5, *7. The court emphasized that the officers were

aware that (1) having pointed a gun at Godin and pulled

the trigger, Root was armed with a gun throughout these

events; (2) Root had fled the initial crime scene leading

the officers on a dangerous car chase through a densely

populated area that ended with a violent collision with

vehicles driven by civilian passersby; (3) despite Root’s

injuries the officers had reason to believe that Root

continued to pose an immediate threat to themselves and

the public; and (4) that immediate threat escalated when he

reached toward the inside of his jacket which the officers

reasonably believed meant he was reaching for a gun. See

2022 U.S. Dist. LEXIS 218303, [WL] at *4. The court also

concluded that Officer McMenamy had acted reasonably

in attempting the PIT maneuver and, after telling Root

26a

Appendix A

to get on the ground, in using his foot to move him to the

ground. See 2022 U.S. Dist. LEXIS 218303, [WL] at *6-7.

The court further reasoned that the officers were, in

any event, entitled to qualified immunity because their

actions were justified under ample Supreme Court and

First Circuit qualified immunity law. See 2022 U.S. Dist.

LEXIS 218303, [WL] at *5-6. Finally, the court reasoned

that, since there was no underlying constitutional violation,

Bannon’s § 1983 claim against the City also failed. See 2022

U.S. Dist. LEXIS 218303, [WL] at *7.

Bannon timely appealed the grant of summary

judgment to the defendants. She has not appealed the

denial of her own summary judgment motion.

II.

We review a grant of summary judgment de novo.

Fagre v. Parks, 985 F.3d 16, 21 (1st Cir. 2021). We must

construe the facts in the light most favorable to the

nonmoving party – here, Bannon – and draw all reasonable

inferences in her favor. Id. We are not bound by the

district court’s reasoning and may affirm on any grounds

supported by the record. Minturn v. Monrad, 64 F.4th 9,

14 (1st Cir. 2023).

III.

We begin with Bannon’s appeal from the district

court’s holding entering summary judgment on the

merits of the § 1983, MCRA, assault and battery, and

27a

Appendix A

wrongful death claims based on the officers’ alleged use

of excessive force. Both the § 1983 and MCRA claims are

premised on an alleged underlying violation of the Fourth

Amendment, which prohibits “unreasonable . . . seizures.”

U.S. Const. amend. IV; see Graham v. Connor, 490 U.S.

386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Bannon

does not dispute that, as a matter of Massachusetts law,

if the officers’ use of force was reasonable for Fourth

Amendment purposes, her assault and battery and

wrongful death claims also fail. See Raiche v. Pietroski,

623 F.3d 30, 40 (1st Cir. 2010); McGrath v. Tavares, 104

N.E.3d 684, 93 Mass. App. Ct. 1115, 2018 Mass. App.

Unpub. LEXIS 505, 2018 WL 3040710, at *2 (Mass. App.

Ct. 2018) (unpublished table decision). We conclude that no

reasonable jury could conclude that the officers engaged

in excessive force in violation of the Fourth Amendment,

for the reasons stated in Part A below. We independently

hold that the officers are entitled to qualified immunity

as described in Part B below.

A.

A claim that law-enforcement officers used excessive

force to effect a seizure is governed by the Fourth

Amendment’s reasonableness standard.14 Plumhoff v.

Rickard, 572 U.S. 765, 774, 134 S. Ct. 2012, 188 L. Ed. 2d

14. The defendants do not dispute that the officers “seized”

Root for Fourth Amendment purposes during each of the instances

of allegedly excessive force – the Brookline shooting, the kick,

and the PIT maneuver. See, e.g., Tennessee v. Garner, 471 U.S.

1, 7, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (discussing meaning of

“seizure” under Fourth Amendment).

28a

Appendix A

1056 (2014) (citing Graham, 490 U.S. at 386). “[T]he

question is whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances

confronting them, without regard to their underlying

intent or motivation.” Graham, 490 U.S. at 397.

Reasonableness is assessed “from the perspective

of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight,” id. at 396, and must take account

of “the fact that police officers are often forced to make

split-second judgments – in circumstances that are tense,

uncertain, and rapidly evolving – about the amount of force

that is necessary in a particular situation,” id. at 397.

This inquiry requires analyzing the totality of the

circumstances. Plumhoff, 572 U.S. at 774. We consider “[1]

[w]hether a reasonable officer on the scene could believe

that the suspect ‘pose[d] an immediate threat to police

officers or civilians,’” Est. of Rahim v. Doe, 51 F.4th 402,

414 (1st Cir. 2022) (second alteration in original) (quoting

Fagre, 985 F.3d at 23-24); see also Kisela v. Hughes, 584

U.S. 100, 103, 138 S. Ct. 1148, 200 L. Ed. 2d 449 (2018),

“[2] [w]hether a warning was given before the use of force

and whether the suspect complied with this command,”

Rahim, 51 F.4th at 414 (citing Kisela, 584 U.S. at 106), “[3]

[w]hether the suspect was armed . . . at the time of the

encounter or whether the officers believed the suspect to

be armed,” id. (citing City & Cnty. of S.F. v. Sheehan, 575

U.S. 600, 612, 135 S. Ct. 1765, 191 L. Ed. 2d 856 (2015)),

“[4] [t]he speed with which officers had to respond to

unfolding events, both in terms of the overall confrontation

and the decision to employ force,” id. (citing Kisela, 584

29a

Appendix A

U.S. at 105-06; Sheehan, 575 U.S. at 612), “[5] [w]hether

the suspect was advancing on the officers or otherwise

escalating the situation,” id. at 415 (citing Sheehan, 575

U.S. at 612-13), “[6] [t]he suspect’s physical proximity

to the officers at the time of the use of force,” id. (citing

Kisela, 584 U.S. at 107), such as whether the individual

“was within range to seriously injure the officers at

the time they fired,” id., “[7] [w]hether multiple officers

simultaneously reached the conclusion that a use of force

was required,” id., and “[8] [t]he nature of the underlying

crime,” id. (citing Graham, 490 U.S. at 396).15

Each of these eight factors weighs in favor of the

officers’ use of force.16

1. No reasonable jury could conclude that a reasonable

officer would not have determined that Root posed

an immediate threat.

The record makes clear that any reasonable officer

would have concluded that Root posed an immediate threat

15. In Rahim, we held that officers were entitled to qualified

immunity because “objectively reasonable officers in their position

would not have understood their actions to violate the law.”

51 F.4th at 413. In so holding, we concluded that each of these

factors “thought to be relevant” “[i]n the case law concerning the

reasonableness of officers’ use of force” weighed in favor of the

officers. Id. at 413-15.

16. As the dissent agrees, factors 2, 3, 7, and 8 above

(respectively, the warnings given, the suspect’s armed status,

a simultaneous conclusion that use of force was required, and

the nature of the underlying crime) clearly weigh in favor of the

officers. The others do as well for the reasons explained below.

30a

Appendix A

both to the officers and to the public both before and at

the time of the fatal split-second decisions by six officers

to shoot Root. The first factor above thus weighs in favor

of the officers.

The test is not, as the dissent puts it, whether Root

“pose[d] an immediate threat to police officers or civilians.”

Instead, the correct test is whether a reasonable officer

on the scene could believe he did so. See Fagre, 985 F.3d

at 23 (holding use of deadly force objectively reasonable

in part because “[n]o reasonable jury could conclude that

it was unreasonable for [officer] to believe that the driver

posed an immediate threat”).

Each of the officers reasonably believed that Root was

armed with a gun. See, e.g., id. at 24 (noting risk created

by presence of gun). The officers also had every reason

to believe Root posed a continuing and immediate threat

to them and the public: Officer Godin had witnessed

Root fire his gun at him at BWH. Just moments before

the shooting, Root had “led [the officers] in a car chase”

through an urban area at high speeds, ignoring the

officers’ “attempt[s] to pull him over,” “act[ing] with

complete disregard for [the officers’] safety or the safety

of anybody else that might have been on the street,” and

causing a serious collision. McGrath v. Tavares, 757 F.3d

20, 28 (1st Cir. 2014). And throughout his interactions

with the officers, Root did not comply with lawful orders

meant to defuse the situation and eliminate the danger

he posed. These included commands to drop his weapon

at BWH, to stop and show his hands following the PIT

maneuver, and to show his hands immediately before the

shooting in Brookline.

31a

Appendix A

The dissent seeks to separate the shooting in

Brookline from the context of the morning’s events,

arguing the officers’ “justification for the use of force ha[d]

ceased” before they arrived at the scene in Brookline.

Nothing in our precedent supports this attempt to

subtract from the analysis the officers’ observations

of Root’s apparent willingness to use deadly force and

his disregard for public safety given his choice to lead

officers on a high speed chase through rush hour traffic,

all of which had occurred just minutes before. Indeed, the

dissent’s position is inconsistent with this circuit’s “case

law [that] is ‘comparatively generous’ to officers facing

‘potential danger, emergency conditions or other exigent

circumstances,’” McKenney, 873 F.3d at 81 (quoting Roy

v. Inhabitants of City of Lewiston, 42 F.3d 691, 695 (1st

Cir. 1994)), and black-letter Supreme Court law holding

we must consider “the fact that police officers are often

forced to make split-second judgments – in circumstances

that are tense, uncertain, and rapidly evolving – about the

amount of force that is necessary in a particular situation,”

Graham, 490 U.S. at 397 (emphasis added).

Even setting aside the events at BWH, officers

reasonably believed Root was armed and fleeing in close

proximity both to the officers and to members of the public

driving on Route 9 (such as Dr. Gerbaudo) or present in the

parking lot (such as McCarthy). See Conlogue v. Hamilton,

906 F.3d 150, 158 (1st Cir. 2018) (explaining that “anyone

within firing range is in proximity to the life-threatening

danger” potentially created by a gun); Rahim, 51 F.4th at

415 (explaining that force is more likely to be reasonable

when officers are in close proximity to suspect).

32a

Appendix A

We reject Bannon’s argument that it was the officers,

not Root, who created this situation by closing in on Root’s

position rather than seeking cover behind their cruisers,

creating a perimeter, or delaying in order to assess the

situation. A use-of-force expert retained by Bannon

opined that the choice to follow Root into the mulched

area did not comply with “standard police practices.” As

the case law makes clear, in situations such as this that

opinion entirely misses the point of the legal test. “[T]he

Supreme Court intends to surround the police who make

these on-the-spot choices in dangerous situations with a

fairly wide zone of protection in close cases,” and “a jury

does not automatically get to second-guess these life and

death decisions, even though the plaintiff has an expert

and a plausible claim that the situation could better have

been handled differently.” Roy, 42 F.3d at 695; see also

Lamont v. New Jersey, 637 F.3d 177, 185-86 (3d Cir. 2011)

(concluding that officers’ decision to pursue a suspect into

a wooded area rather than create a perimeter – as would

have been a standard practice according to the plaintiff’s

policing expert – did not render the officers’ subsequent

use of force unreasonable).

Video footage shows the incident unfolding in a public

place between Route 9 (on which a steady stream of

traffic was moving) and a shopping center parking lot. A

reasonable officer would conclude that Root, known to be

armed with a gun, would endanger the officers and nearby

members of the public if not quickly apprehended. See

Roy, 42 F.3d at 696; Dean v. City of Worcester, 924 F.2d

364, 368 (1st Cir. 1991) (officers encountering suspect in

public area had good reason to “effect the intended arrest

with . . . alacrity”).

33a

Appendix A

Bannon’s appeal, in the end, comes down to an

argument that the officers and an independent witness

did not see what they consistently testified to and say they

saw: that, just before each of the officers made the decision

to fire, Root appeared to reach for a gun in his jacket.17

That movement, under the undisputed circumstances,

would lead reasonable officers to conclude that Root posed

an immediate threat to the safety of both the officers

and the nearby public. See, e.g., Lamont, 637 F.3d at 183

(holding that officers reasonably employed deadly force

where an apparently armed suspect made “a movement

uniformly described by those on the scene as being similar

to that of drawing a gun”).

Five of the off icers gave evidence that each,

independently, saw Root reach into his jacket as if to reach

for a gun, despite commands to show his hands, drop the

gun, etc., in the seconds before the shooting. The three

officers who could recall which hand Root used agreed

it was his right. The other individual defendant, Officer

Thomas, testified that while he could not see Root’s hands,

Root’s movements were “abrupt[] and aggressive[]” rather

than “surrendering.”

17. The dissent argues from the lack of video footage from

what it refers to as the “essential” time period that this means

summary judgment was entered in error. Not so. This argument

ignores the fact that on the evidence of record the officers and an

independent witness all gave consistent testimony, and that this

testimony is also entirely consistent with the video footage that

is available from immediately before and after the shooting. The

mere fact that a body camera lens was blocked by an officer’s

shooting stance at the precise moment officers shot at Root does

not, given those other consistent sources of evidence, create a

triable issue of fact.

34a

Appendix A

That is exactly what the independent witness saw. Dr.

Gerbaudo’s witness statement, taken just six days after

the shooting, is entirely consistent with and reinforces

the officers’ testimony.18 He told investigators that, just

prior to the shooting, Root “turned around facing the

officers” and that “with his right hand, he took his right

hand under his coat,” at which time the officers fired. And

Dr. Gerbaudo’s statement that Root turned reinforces the

officers’ testimony that Root was moving just before the

shooting.

Bannon offers two arguments concerning Root’s

reach. First, Bannon argues, as does the dissent, that

there is a triable issue of fact as to whether the reach

occurred. Second, Bannon argues that even if Root was

reaching, other facts still render the officers’ use of force

unreasonable. We reject both arguments.

Here, six different officers from two different law

enforcement agencies have offered consistent evidence,

supported by independent eyewitness statements. As a

result, Bannon bears the burden of producing contrary

evidence and not just hypothetical disputes. See Statchen

18. Bannon argues that we may not consider Dr. Gerbaudo’s

statement because he was not deposed and his statements are

hearsay. These objections are meritless and are made for the

first time on appeal and waived. See Desrosiers v. Hartford Life

& Accident Ins. Co., 515 F.3d 87, 91 (1st Cir. 2008) (finding waiver

where party failed to object to materials submitted in support of

summary judgment). Bannon chose not to depose Dr. Gerbaudo.

Further, she does not argue that Dr. Gerbaudo did not witness

the events at issue.

35a

Appendix A

v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010); Lamont, 637 F.3d

at 182 (“[T]he party opposing summary judgment in a

deadly-force case must point to evidence – whether direct

or circumstantial – that creates a genuine issue of material

fact. . . .”). None of the evidence Bannon argues from

contradicts the officers’ and Dr. Gerbaudo’s description

of Root’s hand movement toward the inside of his jacket.

Bannon and the dissent argue that a reasonable jury

could conclude that “Root was unable to act threateningly

during the essential time period.” We see no such evidence

in the record. Bannon relies heavily on McCarthy’s

testimony that Root kept his right hand at his chest and

his left arm at his side throughout the time she observed

him, that she did not believe he would be able to stand,

and that he appeared to have the “[l]ights on[, but] no one

home.”

Neither McCarthy’s testimony nor any other evidence

supports a reasonable inference that Root, after McCarthy

observed him, could not have reached his right hand

under his jacket. McCarthy’s testimony as to the time

when she observed Root is consistent with the officers’

testimony that they saw him later reaching that hand

into his jacket. Even were McCarthy’s opinion testimony

at her deposition, based on a few seconds of observation,

that Root would have been unable to stand, admissible, it

does not contradict the officers’ testimony that they saw

him reaching into his jacket. Indeed, video of the incident

shows Root moving from his vehicle to the mulched area

under his own power just seconds before she saw him. Nor

are the testimonies of all of the witnesses to the shooting

36a

Appendix A

called into question by Bannon’s medical expert’s opinion

that Root’s injuries and blood loss would have “rendered

[him] physically and mentally impaired.” Nor would

“impair[ment]” mean it was impossible for him to move

his arm. No reasonable jury could conclude, contrary to

the witness statements, that Root was unable to move his

arm. See Colt Def. LLC v. Bushmaster Firearms, Inc., 486

F.3d 701, 709-10 (1st Cir. 2007) (explaining that “a ‘mere

scintilla’ of evidence” is insufficient to create triable issue

(quoting Hochen v. Bobst Grp., Inc., 290 F.3d 446, 453 (1st

Cir. 2002))). Nor does that expert’s opinion that Root’s gun

would have shown visible blood or damage had it been in

his hand at the time of the shooting call into question the

reasonableness of any of the officers’ conclusions from

their observations that Root was reaching inside his jacket

for what they believed to be a weapon.

As a fallback position, Bannon asserts that, even if

Root did reach, the officers still could not reasonably

have concluded that he posed an immediate threat.19 This

19. The cases that Bannon cites involving physically or

mentally impaired individuals whom courts concluded were not

immediate threats are readily distinguishable. Woodcock v. City

of Bowling Green, 679 F. App’x 419 (6th Cir. 2017) (unpublished)

(holding force unconstitutional where officers shot man who had

not threatened officers or anyone present, made non-threatening

movements, and was seventy feet away from officers); Palma v.

Johns, 27 F.4th 419 (6th Cir. 2022) (holding force unconstitutional

where officer did not reasonably believe suspect was armed

or engaged in any serious crime and suspect was not acting

aggressively); Est. of Jones v. City of Martinsburg, 961 F.3d 661

(4th Cir. 2020) (holding force unconstitutional where suspect was

not engaged in serious crime and was injured on the ground,

37a

Appendix A

position is untenable. The officers did not know the details

of Root’s medical condition, and Bannon’s own expert stops

short of any opinion that Root was so incapacitated as to

be unable to reach for a gun, point it, or pull a trigger.

Nor were Root’s actions an attempt to comply with officer

commands to show his hands, as Bannon posits. Multiple

officers explicitly stated that Root moved his hand into his

jacket – a movement inconsistent with showing his hands.

We easily reject Bannon’s and the dissent’s next

argument that the “self-serving” officers’ testimony

means they are not entitled to summary judgment. This

is not circuit law, and the record does not support the

contention.

The purported inconsistencies Bannon and the

dissent point to do not go to the issue of whether Root

reached. Given that the officers arrived at different

times, had different vantage points, and had only seconds

to assess the scene under chaotic circumstances, these

minor differences in testimony are perfectly consistent.

Beyond that, the officers testified consistently under oath

concerning the reach. 20 That reach seen by a reasonable

motionless, and armed only with knife pinned under his body);

McKenney v. Mangino, 873 F.3d 75 (1st Cir. 2017) (holding use

of force unconstitutional where suspect did not point firearm at

anyone or threaten officers, was moving slowly, and was sixtynine feet away).

20. No material dispute of fact emerges from the officers

having spoken together after the very tense event putting them

in danger and before speaking to investigators, even if doing so

violated BPD rules (as Bannon asserts).

38a

Appendix A

officer would lead the officer to conclude that Root, known

to be armed, presented an immediate threat whether he

was seen as struggling to get up or not. Not just one officer

gave this account, but every officer at the scene.

This argument also ignores disinterested sources of

evidence consistent with the officers’ statements. Bannon

does not contend that Dr. Gerbaudo’s corroborating

statements could conceivably have been coordinated with

the officers. And body-worn camera footage from the day

shows Trooper Conneely recovering the BB gun from the

area of Root’s chest and hands moments after the shots

were fired. The uncontroverted and disinterested evidence

shows that any reasonable officer would believe (1) that

Root was armed, (2) that such weapons were concealed in

his jacket (particularly given that he had flashed a weapon

earlier in the day by opening his jacket), and (3) that Root

reached into that jacket. We add that a gun was recovered

from the area of his body near which Root’s hands had

been reaching just seconds before officers fired.

As this court has often held, a party cannot survive

summary judgment simply by asserting that a jury might

disbelieve the moving party’s evidence. The non-moving

party, Bannon, must instead present sufficient affirmative

evidence of its own to create material issues of fact. 21

21. The dissent suggests that where an officer kills the sole

other witness the officer’s testimony is inherently not credible and

cites Flythe v. District of Columbia, 791 F.3d 13, 416 U.S. App. D.C.

190 (D.C. Cir. 2015). Flythe does not stand for that proposition in

the D.C Circuit, nor is that this circuit’s law. Moreover, Flythe is

entirely consistent with circuit law and easily distinguishable on

39a

Appendix A

See, e.g., Sears, Roebuck & Co. v. Goldstone & Sudalter,

P.C., 128 F.3d 10, 18 (1st Cir. 1997); see also LaFrenier

v. Kinirey, 550 F.3d 166, 167-68 (1st Cir. 2008) (holding

that, where two defendant police officers’ testimony

was consistent as to key point, that testimony could

support summary judgment despite fact officers were

not “disinterested” in result). 22 In short, we see “nothing

the facts. There, the testimony of a sole officer as to the individual

he shot “conflict[ed] with that of every other witness” who saw

the event and “conflict[ed] with . . . the physical evidence” which

supported the other witness’s testimony, creating a material issue of fact.

Id. at 20. Here, by contrast, every witness to the event testified

consistently, and that included independent witnesses. Indeed,

we have engaged in the “careful[] examin[ation] [of the] direct

and circumstantial evidence presented by the parties” that the

dissent argues our precedent requires and conclude that evidence

supports summary judgment for the officers.

22. The record does not support the dissent’s view that officers

gave conflicting testimony as to whether Officer McMenamy kicked

Root to the ground and that Trooper Conneely testified that he saw

Root’s gun in his hand which, in the dissent’s view, is impossible

given the lack of visible blood on Root’s gun. This argument fails

to account for the varying arrival times and vantage points of the

officers at the time of the shooting.

The dissent also cites Goodwin v. City of Painesville, 781

F.3d 314, 322-23 (6th Cir. 2015), for the proposition that Officer

Godin’s failure to activate his body-worn camera “could weigh

against [his] credibility.” That is not the rule of this circuit. It is

also inapposite: in Goodwin there was evidence that the officer

had a pattern of “avoiding documentation of his actions” and “had

already been warned about his failure to use a recording device

during an earlier citizen encounter.” Id. at 322. Here, there is no

evidence that Officer Godin had a habit of failing to activate his

body-worn camera – to the contrary, Officer Godin had made two

recordings with that camera that very morning.

40a

Appendix A

inherently unbelievable about [the] officer[s’] testimony.”

LaFrenier, 550 F.3d at 168.

Six officers operating under “tense, uncertain, and

rapidly evolving” “circumstances,” Graham, 490 U.S. at

397, all made identical and simultaneous “split-second

judgments,” id., that deadly force was necessary to

protect themselves and the nearby public from Root. No

reasonable juror could conclude that all six of those officers

unanimously, independently, and simultaneously reached

an unreasonable conclusion.

2. No reasonable jury could conclude that the other

factors weigh against the officers.

The remaining factors – “[t]he speed with which

officers had to respond to unfolding events, both in

terms of the overall confrontation and the decision to

employ force,” “[w]hether the suspect was advancing on

the officers or otherwise escalating the situation,” and

“[t]he suspect’s physical proximity to the officers at the

time of the use of force” such as whether the individual

“was within range to seriously injure the officers at the

time they fired,” Rahim, 51 F.4th at 414-15 – also favor

the officers.

It was Root who escalated the threat when he reached

for a gun concealed in his jacket, see, e.g., Conlogue,

906 F.3d at 156 (holding suspect was “escalat[ing]

confrontation” where he “raised [a] gun, and waved it

back and forth” and “refused to comply” with commands

“to drop his weapon”), and certainly “was within range

41a

Appendix A

to seriously injury the officers at the time they fired,”

Rahim, 51 F.4th at 415. Further, Root had just led the

officers on a dangerous car chase, stopping only when he

had caused a collision that disabled his vehicle. Throughout

his interactions with the police, he had repeatedly failed

to obey lawful commands. And rather than giving any

affirmative indication of surrender, he instead moved

his arm in a way that officers perceived to be a reach for

a gun. Cf. Johnson v. Scott, 576 F.3d 658, 660 (7th Cir.

2009) (noting that an officer “had no idea how [a suspect]

was going to behave once he was cornered” and was not

“required . . . to take [the suspect’s] apparent surrender

at face value, a split second after [the suspect] stopped

running”).

Finally, the record does not support the dissent’s view

that “[t]he speed with which officers had to respond to

unfolding events, both in terms of the overall confrontation

and the decision to employ force,” Rahim, 51 F.4th at

414, “cuts both ways.” Not so. Root led officers on a highspeed chase through heavily trafficked streets during the

morning rush hour after pointing an apparent gun at law

enforcement officers at a hospital, crashing his car into

civilian cars, and continuing to run away. Under those

circumstances, “[t]he speed with which officers had to

respond to unfolding events,” id., points unequivocally

in favor of the reasonableness of the officers’ use of force

here.

Under the totality of the circumstances, no reasonable

jury could conclude that the officers acted unreasonably

in employing deadly force against Root in violation of

42a

Appendix A

the Fourth Amendment. 23 We affirm entry of summary

judgment for the defendants on Bannon’s § 1983, MCRA,

assault and battery, and wrongful death claims arising

from the shooting. See Fagre, 985 F.3d at 24; Raiche, 623

F.3d at 40; Tavares, 2018 Mass. App. Unpub. LEXIS 505,

2018 WL 3040710, at *2.

B.

We independently conclude that the officers are

entitled to summary judgment on Bannon’s § 1983 and

MCRA claims24 based on qualified immunity. Fagre, 985

F.3d at 24; Rahim, 51 F.4th at 413-15.

Qualified immunity renders government officials

sued in their official capacities immune to damages

claims unless “(1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their

conduct was clearly established at the time.” Fagre, 985

F.3d at 24 (internal quotation marks omitted) (quoting

Irish v. Fowler, 979 F.3d 65, 76 (1st Cir. 2020)). “This is

a ‘heavy burden’ for a plaintiff to meet.” Johnson v. City

of Biddeford, 92 F.4th 367, 375-76 (1st Cir. 2024) (quoting

Rahim, 51 F.4th at 410). “The qualified immunity [the

23. Bannon argued in the district court that, even if the

officers were initially justified in firing at Root, the number of

shots fired was excessive. She has not renewed this argument on

appeal, so we do not address it.

24. “Qualified immunity principles developed under 42 U.S.C.

§ 1983 apply equally to MCRA claims.” Krupien v. Ritcey, 94 Mass.

App. Ct. 131, 112 N.E.3d 302, 306 & 306 n.7 (Mass. App. Ct. 2018).

43a

Appendix A

officers] enjoy . . . the Supreme Court of the United States

has explained is intended to ‘protect[] all but the plainly

incompetent or those who knowingly violate the law.’”

Jakuttis v. Town of Dracut, 95 F.4th 22, 30 (1st Cir. 2024)

(quoting White v. Pauly, 580 U.S. 73, 79, 137 S. Ct. 548, 196

L. Ed. 2d 463 (2017)). “Thus, if an objectively reasonable

official in [the officers’] shoes ‘might not have known for

certain that their conduct was unlawful,’ then [the officers]

‘[are] immune from liability.’” Id. (third alteration in

original) (quoting Ziglar v. Abbasi, 582 U.S. 120, 152, 137

S. Ct. 1843, 198 L. Ed. 2d 290 (2017)).

“In the Fourth Amendment context, the ‘[s]pecificity’

of the rule set forth in such precedent ‘is especially

important,’ because it can be ‘difficult for an officer

to determine how the relevant legal doctrine,’ such as

excessive force, ‘will apply to the factual situation the

officer confronts.’” Lachance v. Town of Charlton, 990

F.3d 14, 21 (1st Cir. 2021) (alteration in original) (quoting

City of Escondido v. Emmons, 586 U.S. 38, 42, 139 S. Ct.

500, 202 L. Ed. 2d 455 (2019)). Thus, outside of obvious

cases, “‘relevant case law,’ where ‘an officer acting under

similar circumstances . . . was held to have violated the

Fourth Amendment,’ is ‘usually necessary’ to overcome

officers’ qualified immunity.” Id. (omission in original)

(quoting District of Columbia v. Wesby, 583 U.S. 48, 64,

138 S. Ct. 577, 199 L. Ed. 2d 453 (2018)). The plaintiff

bears the burden of “identify[ing] controlling authority

or a consensus of persuasive authority sufficient to put

the officers on notice that their conduct violated the law.”

Rahim, 51 F.4th at 412.

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Appendix A

Bannon has failed to “identif [y] a single precedent

finding a Fourth Amendment violation under similar

circumstances.” City of Tahlequah v. Bond, 595 U.S. 9,

14, 142 S. Ct. 9, 211 L. Ed. 2d 170 (2021). We have already

explained why the cases on which Bannon principally

relies, such as Woodcock and Estate of Jones, involve

factual scenarios too dissimilar from those confronted by

the officers here to clearly establish any relevant right.

Bannon cites Franklin v. City of Charlotte, 64 F.4th 519,

532-34 (4th Cir. 2023), a case which was decided over

three years after the shooting in February 2020, and so

could not have placed the officers on notice of a potential

constitutional violation at the time of the incident. See

City of Tahlequah, 595 U.S. at 13 (explaining that a case

“decided after the shooting at issue[] is of no use in the

clearly established inquiry”). There, the man shot by

officers was not aggressive or threatening, did not attempt

to resist or flee, and sought to comply with police orders to

drop his weapon by “carefully pull[ing] [his] firearm out

of his jacket, point[ing] it at no one, and [holding] it with

just one hand from the top of the barrel” in a “non-firing

grip.” Franklin, 64 F.4th at 532-34.

In addition to the clearly established law supporting

the officers, we also hold that “objectively reasonable

officers . . . would not have understood the[se] actions to

violate the law,” Rahim, 51 F.4th at 413, for the reasons

discussed earlier. The officers thus are entitled to qualified

immunity on that independent basis. Id.

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Appendix A

On this issue the dissent begins from the premise, not

supported by the record, “that . . . a reasonable factfinder

could disbelieve the officers’ testimony and find that Root

was not and could not act threateningly at the time of

the shooting.” We have already explained in detail why,

properly considering the totality of the circumstances,

this premise is incorrect under the well-settled precedent

of our circuit. From that erroneous premise the dissent,

taking language from Stamps v. Town of Framingham,

813 F.3d 27, 39-40 (1st Cir. 2016), argues “‘that a reasonable

officer in [the officers’] position would have understood

that’ shooting a person who is bleeding on the ground and

unable to make sudden movements ‘constituted excessive

force in violation of that person’s Fourth Amendment

rights.’” (Alteration in original.) Stamps concerned one

officer who shot a man who “was fully complying with

the orders he was given, was unarmed and flat on his

stomach in the hallway, and [who] constituted no threat.”

Id. at 31. Even on the dissent’s own preferred read of the

evidence, here Root was understood to be armed, was

failing to comply with officer orders, and had, at least

until seconds earlier, posed a real threat to officers and

the general public by virtue of his erratic driving at high

speeds. Unlike Stamps, this is not a case where officers

“sho[t] a person who [wa]s bleeding on the ground and

unable to make sudden movements,” Stamps, 813 F.3d at

39-40, for all the reasons discussed above.

We affirm the entry of summary judgment on the

§ 1983 and MCRA claims for the several reasons stated

based on qualified immunity.

46a

Appendix A

IV.

We turn to Bannon’s other excessive force claims

against only Officer McMenamy under § 1983 and the

MCRA. We affirm the district court’s grant of summary

judgment to Officer McMenamy.

We begin with Bannon’s claims concerning Officer

McMenamy’s use of the PIT maneuver to try to stop Root’s

car with his cruiser. Without deciding whether Officer

McMenamy’s conduct violated the Fourth Amendment,

we affirm based on qualified immunity.

Bannon has not met her burden of “identify[ing]

either controlling authority or a consensus of persuasive

authority sufficient to put [Officer McMenamy] on notice

that his conduct fell short of the constitutional norm.” 25

Rahim, 51 F.4th at 410. Bannon’s brief does not identify

any precedent on this issue finding a Fourth Amendment

violation at all, citing instead two decisions dealing with

25. Bannon does not contend an alleged constitutional

violation was so “obvious” that “any competent officer would have

known that [the maneuver] would violate the Fourth Amendment,”

Kisela, 584 U.S. at 106, nor could she plausibly do so, cf., e.g., Scott

v. Harris, 550 U.S. 372, 374, 386, 127 S. Ct. 1769, 167 L. Ed. 2d

686 (2007) (holding that it is at least sometimes reasonable for

an officer to intentionally collide with a suspect’s vehicle during

a pursuit). Nor does the fact that the PIT maneuver violated

BPD policy strip Officer McMenamy of immunity. See Davis v.

Scherer, 468 U.S. 183, 194-96, 104 S. Ct. 3012, 82 L. Ed. 2d 139

(1984) (“Officials sued for constitutional violations do not lose their

qualified immunity merely because their conduct violates some

statutory or administrative provision.”).

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Appendix A

alleged due process violations, neither of which involved

an intentional police cruiser collision with a fleeing, armed

suspect under circumstances like those presented here.

See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 836-38,

854, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 & 854 n.13 (1998);

Checki v. Webb, 785 F.2d 534, 535-36, 538 (5th Cir. 1986). 26

That failure ends her appeal on this claim.

Bannon also argues that Officer McMenamy violated

the Fourth Amendment when he kicked Root after

arriving at the scene in Brookline. Officer McMenamy

responds that the use of force was reasonable under the

circumstances, and we agree. 27

26. In addition to addressing a different constitutional issue,

Lewis found no constitutional violation. See 523 U.S. at 855. And

Bannon acknowledges that the facts of Checki, in which two

defendant police officers, apparently without any provocation and

without providing any indication that they were officers, pursued

the plaintiff in a high-speed chase involving “speeds in excess of

100 M.P.H.,” occasionally “tailgating to within two to three feet”

of the pursued car, 785 F.2d at 535, “are not similar to this case,”

cf. Kisela, 584 U.S. at 106-07 (explaining why various precedents

were insufficiently factually similar to show that a right was

clearly established).

27. Contrary to Bannon’s assertion that Officer McMenamy

“did not seek summary judgment as to the kick” and has thereby

waived the issue, Officer McMenamy sought summary judgment on

all counts. His memorandum in support of his summary judgment

motion did not specifically discuss the kick, but he briefed the issue

in responding to Bannon’s motion for summary judgment. Further,

the district court analyzed the kick, see Bannon, 2022 U.S. Dist.

LEXIS 218303, 2022 WL 17417615, at *7, and the parties have

fully briefed it on appeal.

48a

Appendix A

An officer’s use of nondeadly force, like the use

of deadly force, is governed by a Fourth Amendment

reasonableness standard, see Graham, 490 U.S. at 396,

under which we also must pay “careful attention to the

facts and circumstances,” id. The facts support the

reasonableness of Officer McMenamy’s actions, such that

no reasonable jury could find a constitutional violation.

At the time of Officer McMenamy’s kick, he was

aware of multiple severe crimes at issue: Root was armed;

had demonstrated intent to harm officers and civilians,

including hospital patients; had fled in a vehicle at high

speeds and, once that vehicle was no longer functional

after the collision, continued to flee on foot; was in close

proximity to officers and the public; and continued to

disregard lawful orders to show his hands, get on the

ground, etc.

Even assuming, favorably to Root and contrary to

Officer McMenamy’s testimony, that Root was stationary

at the time of the kick, a reasonable officer would not

assume that Root had ceased his efforts to “evade arrest.”

Graham, 490 U.S. at 396; cf. Johnson, 576 F.3d at 660

(“No law that we know of required [an officer] to take [a

suspect’s] apparent surrender at face value, a split second

after [the suspect] stopped running.”).

Under these circumstances, a reasonable officer would

believe that the force employed by Officer McMenamy

was appropriate. After ordering Root to show his hands

and get on the ground, McMenamy used his foot to

“push[] [Root] to the ground.” Bannon has produced no

49a

Appendix A

evidence that the kick caused any injury or was otherwise

unduly forceful. See Dean at 369 (noting that a suspect’s

“minor physical injuries” were “insufficient to support

an inference that . . . officers used inordinate force” when

“subdu[ing] an armed felon on a busy city street”); see also

Graham, 490 U.S. at 396 (“‘Not every push or shove, even

if it may later seem unnecessary in the peace of a judge’s

chambers,’ violates the Fourth Amendment.” (citation

omitted) (quoting Johnson v. Glick, 481 F.2d 1028, 1033

(2d Cir. 1973))). Even assuming Root was lying on the

ground, we still conclude that, under the circumstances,

a reasonable officer would be justified in using his foot to

push an unsecured armed suspect toward the ground to

ensure that that suspect did not begin to rise. The cases

Bannon cites, which involved unwarranted beatings of

already-secured suspects, are obviously distinguishable.

See Alicea v. Thomas, 815 F.3d 283, 287, 292 (7th Cir.

2016); Boozer v. Sarria, No. 09-cv-2102, 2010 U.S. Dist.

LEXIS 106820, 2010 WL 3937164, at *1, *6 (N.D. Ga. Oct.

4, 2010).

V.

Finally, we affirm the district court’s grant of

summary judgment to the City on Bannon’s § 1983 claim

alleging a failure by the City to adequately train its

officers. 28

28. Bannon’s complaint styles the count against the City as

sounding in “negligent training and supervision.” The City, in

moving for summary judgment, construed the claim as one based

entirely on failure to train, noting that the claim’s “substance

principally concerns the City’s purported failure to train its

50a

Appendix A

“[A] municipality ‘may be liable under [§ 1983] if

the governmental body itself subjects a person to a

deprivation of rights or causes a person to be subjected

to such deprivation.’” Haley v. City of Boston, 657 F.3d

39, 51 (1st Cir. 2011) (internal quotation marks omitted)

(quoting Connick v. Thompson, 563 U.S. 51, 60, 131

S. Ct. 1350, 179 L. Ed. 2d 417 (2011)). Municipalities “are

responsible only for their own unconstitutional acts,” and

“are not vicariously liable . . . for the actions of their nonpolicymaking employees,” and so “a plaintiff must ‘identify

a municipal policy or custom that caused the plaintiff’s

injury.’” Id. (internal quotation marks omitted) (quoting

Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403, 117

S. Ct. 1382, 137 L. Ed. 2d 626 (1997)).

A municipality’s “decision not to train certain

employees about their legal duty to avoid violating citizens’

rights may rise to the level of an official government policy

for purposes of § 1983,” but only where the “failure to

train its employees in a relevant respect . . . amount[s] to

officers.” While Bannon argues that the City has therefore “waived

any right to argue that it is seeking summary judgment concerning

its failure to supervise,” the City’s reading of the complaint is

a fair one, as the pleading makes only passing references to a

failure-to-supervise theory. At minimum, Bannon bore the burden

of explaining why her failure-to-supervise theory offers a distinct

basis for relief, yet she has never done so in any detail, instead

asserting vaguely in footnotes in the district court and on appeal

that discovery produced evidence of the City’s purported failure

to supervise its officers. Bannon has waived any argument based

on a failure-to-supervise theory. See, e.g., FinSight I LP v. Seaver,

50 F.4th 226, 235 (1st Cir. 2022); United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990).

51a

Appendix A

‘deliberate indifference to the rights of persons with whom

the [untrained employees] come into contact.’” Connick,

563 U.S. at 61 (last alteration in original) (quoting City of

Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103

L. Ed. 2d 412 (1989)). The deliberate indifference standard

is “stringent” and “requir[es] proof that a municipal

actor disregarded a known or obvious consequence of his

action.” Id. (quoting Brown, 520 U.S. at 410). “A pattern

of similar constitutional violations by untrained employees

is ‘ordinarily necessary’ to demonstrate deliberate

indifference for purposes of failure to train,” id. at 62

(quoting Brown, 520 U.S. at 409), although liability based

on a single incident may be possible in rare cases where

“the need for more or different training is . . . obvious, and

the inadequacy [is highly] likely to result in the violation

of constitutional rights,” City of Canton, 489 U.S. at 390;

see Connick, 563 U.S. at 63-64.

This theory of municipal liability is viable only where

a plaintiff establishes the existence of “underlying,

identifiable constitutional violations. . . .” Lachance, 990

F.3d at 31 (omission in original) (quoting Kennedy v. Town

of Billerica, 617 F.3d 520, 531 (1st Cir. 2010)). We have

already held that neither the shooting nor the kick violated

the Fourth Amendment, and so neither can support the

claim against the City. Any liability on this claim would

have to stem from the only other purported constitutional

violation identified by Bannon – the claim of excessive

force in Officer McMenamy’s attempted PIT maneuver.

Rega rdless, Bannon cannot show del iberat e

indifference on the part of the City. BPD policy expressly

52a

Appendix A

forbids officers from deliberately colliding with suspects’

vehicles. A Department rule provides: “Officers shall not

use their police vehicle to deliberately make contact with

a pursued vehicle.” The undisputed facts show that the

City trained BPD recruits, including Officer McMenamy,

about this rule. An instructor from the Boston Police

Academy deposed on behalf of the City, see Fed. R. Civ.

P. 30(b)(6), testified that “[BPD] recruits . . . [are] taught

that they are prohibited from using their police vehicle[s]

to deliberately strike . . . vehicle[s] that[] [are] being

pursued.” Officer McMenamy confirmed in his deposition

that he was trained not to perform PIT maneuvers and

that he was aware on the day of the incident that PIT

maneuvers and the use of his vehicle to strike a pursued

vehicle were prohibited by BPD policy.

Bannon has not shown that the City had any reason

to anticipate that this training would be inadequate. Her

brief asserts that “BPD has a long history of excessive

force complaints,” but does not argue that any of these

complaints involved “similar [alleged] constitutional

violations,” Connick, 563 U.S. at 62, like the PIT

maneuver. Nor has Bannon explained why it was “obvious”

that the City’s training concerning PIT maneuvers would

be inadequate. Id. at 64. On this record, no reasonable

factfinder could find deliberate indifference, making

summary judgment for the City appropriate.

The entry of summary judgment for defendants is

affirmed. No costs are awarded.

53a

Appendix A

MONTECALVO, Circuit Judge, dissenting in part

and concurring in part. I respectfully disagree with

the majority’s characterization of the evidence and its

application of the summary judgment standard to the

deadly force claims and would find that summary judgment

on those claims is inappropriate at this juncture. Plaintiff

has put forth sufficient evidence, both regarding the

events leading up to the shooting and as to the witnesses’

credibility, that a reasonable factfinder could find in her

favor. However, because I join in the majority’s decision as

to Part IV and concur as to Part V, I dissent only in part.

I.

Standard of Review

“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.” McKenney v. Mangino, 873

F.3d 75, 80 (1st Cir. 2017). All reasonable inferences are also

drawn in favor of the nonmovant. Mitchell v. Miller, 790

F.3d 73, 76 (1st Cir. 2015). We review summary judgment

rulings de novo, through this same lens employed by the

district court. See McKenney, 873 F.3d at 80.

II. Excessive Force Claims

A.

Violation of Protected Right

“The qualified immunity analysis ‘entails a two-step

pavane.’” Morse v. Cloutier, 869 F.3d 16, 23 (1st Cir. 2017)

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

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Public officials are generally immune from individual

liability unless “(1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their

conduct was clearly established at the time.” Punsky v.

City of Portland, 54 F.4th 62, 65-66 (1st Cir. 2022) (internal

quotation marks omitted) (quoting Irish v. Fowler, 979

F.3d 65, 76 (1st Cir. 2020)). “We have discretion to bypass

the first step if we conclude that the right was not clearly

established at the time of its alleged violation.” Perry v.

Spencer, 94 F.4th 136, 146 (1st Cir. 2024).

Under the first step, this court evaluates “whether

the plaintiff’s version of the facts makes out a violation of

a protected right.” Morse, 869 F.3d at 23 (quoting Alfano,

847 F.3d at 75). At this juncture, all undisputed facts stand

as true; however, all disputed facts are resolved in favor

of the plaintiff.

Although we face a fact-intensive inquiry, in my mind,

only one question remains: What was Juston Root doing

in those few seconds prior to the officers’ use of deadly

force? If, as the defendants contend, Root reached into

his jacket, then the officers likely reasonably responded

to a potential imminent threat because they had reason

to believe Root was armed. However, if, as the Plaintiff

contends, Root was on the ground, severely bleeding, and

merely holding his hand to his chest, the officers’ actions

appear to be “patently unreasonable.” Flythe v. District

of Columbia, 791 F.3d 13, 19, 416 U.S. App. D.C. 190 (D.C.

Cir. 2015). Given we are at the summary judgment stage,

after viewing all of the facts in the light most favorable

to the plaintiff, we can only affirm the district court if

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“no rational trier of fact could disbelieve” the officers’

telling. Id.; see Morelli v. Webster, 552 F.3d 12, 18 (1st

Cir. 2009). As I describe below, the factual record leaves

open ample room for reasonable factfinders to dispute the

reasonableness of the officers’ conduct.

1.

The Relevant Factual Record

Much of the interaction between Root and the officers,

beginning with the initial confrontation at the hospital,

is documented on various video recordings. However, we

do not have the benefit of any video recording as to the

essential time period – immediately prior to and during

the deadly shooting. Thus, we must look to the other

evidence available in the summary judgment record.

While reviewing the record, it is important to note that

“history is usually written by those who survive to tell the

tale.” Flythe, 791 F.3d at 19. Under such circumstances,

“where ‘the witness most likely to contradict [the officers’]

story – the person [they] shot dead – is unable to testify,’

courts . . . ’may not simply accept what may be a selfserving account by the police officer[s].’” Id. (quoting Scott

v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). “Instead,

courts must ‘carefully examine all the evidence in the

record . . . to determine whether the officer[s’] story is

internally consistent and consistent with other known

facts.’” Id. (quoting Scott, 39 F.3d at 915). “Courts ‘must

also look at the circumstantial evidence that, if believed,

would tend to discredit the police officer[s’] story, and

consider whether this evidence could convince a rational

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factfinder that the officer[s] acted unreasonably.’” 29 Id.

(quoting Scott, 39 F.3d at 915). “[W]here the circumstantial

evidence supports a dispute of material fact, we must

conclude that summary judgment is inappropriate and

allow the case to proceed to trial.” Hinson v. Bias, 927

F.3d 1103, 1118 (11th Cir. 2019).

Thus, after a careful examination of the record, I

have summarized below the relevant evidence provided,

including the testimony of the individual officers. I also

focus on the essential time period, as noted above. When

describing each officer and witness’s role and observations

in the remainder of this section, I do so based on what

those particular witnesses testified to, without drawing

any conclusions as to what occurred. As I will lay out,

I disagree with the majority’s view that the witnesses’

testimonies were consistent as to the material facts;

29. I agree with the majority that Flythe is “entirely

consistent with [our] circuit law.” Op. 41 n.21. And, under our

caselaw, we must carefully examine the direct and circumstantial

evidence presented by the parties to determine whether a genuine

issue of material fact exists at the summary judgment stage.

See Giroux v. Somerset Cnty., 178 F.3d 28, 32-34 (1st Cir. 1999)

(reviewing both circumstantial and direct evidence to reverse the

granting of summary judgment); see also In re Neurontin Mktg.

& Sales Pracs. Litig., 712 F.3d 60, 69 (1st Cir. 2013) (holding that

“it is a jury’s task to weigh the individual testimony presented

by [the defendant] against the aggregate and circumstantial

evidence presented by the . . . plaintiffs”); Mesnick v. Gen. Elec.

Co., 950 F.2d 816, 828 (1st Cir. 1991) (holding that plaintiff had

not provided “direct or circumstantial” evidence to overcome

summary judgment). The majority opinion’s characterization of

my reliance on Flythe is unfounded, as discussed infra. Op. 41

n.21; Diss. 87-88 n.42.

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accordingly, I think it is important to carefully describe

each witness’s recollection to evaluate the full scope of

the evidence presented.

i.

Officer David Godin

Officer David Godin responded to the initial call at

Brigham and Women’s hospital (“the hospital”) regarding

a person with a gun. 30 After the vehicle pursuit of Root

ended in Root crashing his car and exiting his vehicle,

Godin next observed Root seated next to a woman, later

identified as Shelly McCarthy, in a mulched area in

Brookline. Godin testified that, as he approached, he yelled

at McCarthy to get away from Root and yelled at Root to

show his hands. Godin never saw Root standing on two

feet and did not consider Root to be “fleeing” once Godin

observed Root in the mulched area. Godin also said he

never saw another officer approach Root or touch Root in

any way. Godin testified that although he saw Root reach

into his jacket, he did not shoot until he heard another

officer yell “gun.” Godin fired eight rounds at Root.

In a sworn, written statement, Godin said that

his body-worn camera was in his duty bag throughout

his interactions with Root and was not attached to his

30. Although the majority opinion refers to this weapon as

a “gun,” it is undisputed that what was ultimately recovered was

a paintball gun. However, there is also no dispute that Godin did

not know that it was a paintball gun until after the shooting in

Brookline was well over. This paintball gun, as well as another

paintball gun, was recovered from Root’s vehicle sometime after

Root was fatally shot.

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body. Godin also initially stated at his interview with

the Massachusetts state police investigators that he

was not wearing his body-worn camera on this day, but,

after video evidence showed otherwise, he testified that

he did not remember whether he was wearing his bodyworn camera. Specifically, video from another officer’s

body-worn camera showed Godin wearing his body-worn

camera and then throwing it into a cruiser. Godin also

testified that the incident caused him stress, resulting in

sleeping problems “for the next couple days.”

ii.

Officer Joseph McMenamy

Officer Joseph McMenamy joined the pursuit of Root

shortly after Root left the area of the hospital. McMenamy

performed a PIT maneuver during the pursuit, which

failed to stop the pursuit. Although the pursuit started

with Root driving at about twenty to thirty miles per hour,

after McMenamy’s PIT maneuver, Root increased his

speed to up to ninety miles per hour. McMenamy was later

the first officer to arrive at the scene after Root crashed

his vehicle. McMenamy testified that he observed Root

“running” from his vehicle on the sidewalk.

When McMenamy approached, he saw McCarthy

“relatively close” to Root and observed her reaching

her hand out and touching him. McMenamy yelled at

McCarthy to get away from Root. McMenamy testified

that Root was in “a hunched over position,” but standing

with both feet on the ground. McMenamy testified that

he was ordering Root to show his hands and to get on the

ground. McMenamy also testified that during this time,

Root was moving away from him “little by little.”

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McMenamy stated that he then approached Root and

kicked him with the bottom of his foot, causing Root to

fall to the ground. McMenamy testified that Root then

“started standing back up” and eventually “got up to both

feet.” McMenamy also testified that he believed he saw

the backside of a handgun31 on Root, and once he thought

he saw Root reach toward it, McMenamy shot at him.

McMenamy fired ten rounds. McMenamy also stated that

although he was wearing his body-worn camera on this

day, he did not activate the camera until after the shooting.

iii. Officer Brenda Figueroa

Officer Brenda Figueroa joined the pursuit of Root

near the hospital. Figueroa did not recall ever hearing

over her radio that Root had been shot at the hospital.

Figueroa turned on her body-worn camera while in pursuit

of Root’s vehicle.

Figueroa testified that when she exited her vehicle at

the scene, there were no civilians near Root, and Root was

facing the other officers and kneeling on the ground ten

to fifteen feet away from her. She further testified that

both of Root’s hands were inside of his jacket. Figueroa

stated that she and the other officers commanded Root

to “[s]how us [his] hands.” Figueroa testified that Root

began removing his hand from his jacket, and she saw

the handle of a firearm in one of his hands. Figueroa fired

three rounds at Root. Figueroa’s body-worn camera was

31. Although the majority opinion also refers to this “weapon”

as a “gun,” it is undisputed that what was ultimately recovered

from the scene was a black bb gun.

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Appendix A

recording throughout the interaction; however, her camera

lens was blocked beginning five seconds before Root was

fatally shot.

iv.

Officer Leroy Fernandes

Officer Leroy Fernandes, who joined the pursuit

of Root after he left the hospital area, testified that

Root was standing in the mulch when Fernandes came

within ten to fifteen feet of Root. At his interview with

the Massachusetts state police investigators, Fernandes

described Root’s position as “seem[ing] like . . . he was

trying to stand but he wasn’t standing. He wasn’t standing

up.” Later, at his deposition for this case, Fernandes

described Root’s position as “standing. Well, upright. . . .

[M]aybe a little bit of a lean-type standing, not fully

standing up.” When asked to clarify what “upright” meant,

Fernandes testified that he believed Root was “on his feet”

and “standing upright.”32 Fernandes further testified that

as he and the other officers verbally commanded Root to

show them his hands, Root “reached into his coat . . . at

which point shots were fired.” However, Fernandes also

stated that “after reaching in, there was a motion that

appeared to be a reach out, at which point shots were

32. The majority opinion describes these accounts as

consistent, Op. 17; however, I do not see the statements “he wasn’t

standing” and “[h]e was standing” or “standing upright” as being

consistent with one another. Although the majority opinion states

that I have taken out of context Fernandes’s quote at his deposition,

Op. 17 n.9, the majority opinion restates the same language from

the record I have quoted above, without considering Fernandes’s

later clarifying comments as to what “upright” meant to him.

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fired.” Fernandes fired two rounds. Fernandes testified

that part of the reason he fired his weapon was because

he heard shots and did not know where they were coming

from. Fernandes did not issue any warnings to Root prior

to shooting, other than telling Root to show his hands.

Fernandes also stated that he did not wear a body-worn

camera on the day of the incident because it was an

overtime shift.

v.

Officer Corey Thomas

Officer Corey Thomas, who was in the passenger seat

of Fernandes’s car during the pursuit, approached the

area where the car accident occurred and stood behind

or by a tree, approximately fifteen feet from where Root

was located. Thomas recalled that another officer was

already present when Thomas and Fernandes arrived on

the scene. At his initial interview with the Massachusetts

state police investigators, Thomas described Root as

being “on the ground” in a “half lying, half kneeling type

position. . . . [H]e wasn’t standing or fully sitting.” Later,

at his deposition, Thomas testified that Root was “moving

in a direction” and “stumbling.” When asked about these

potentially conflicting statements, Thomas attempted to

reconcile them by explaining, “when you’re stumbling

. . . it’s, like, in the way you’re trying to get up. You’re not

fully on the ground. You’re kind of, like, working your way

up but, again, stumbling and going back – you’re falling

back down.” Thomas also testified that the officers we

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