Defendant's Attorney: Peter T. Marchese and Cassandra S. Shaffer
Description: This is a tragic case in which a
man died at the hands of a police officer who was trying to do his
job. The underlying suit alleges, in relevant part, that the
officer violated 42 U.S.C. § 1983 through the precipitous use of
deadly force. In a pretrial ruling, the district court held that
the officer was not entitled to qualified immunity at the summary
judgment stage. See McKenney v. Mangino, No. 2:15-cv-00073, 2017
WL 1365959, at *13 (D. Me. Apr. 12, 2017). The officer challenges
that ruling. After careful consideration, we dismiss portions of
this interlocutory appeal for want of appellate jurisdiction and
Because we are tasked with reviewing a summary judgment
ruling, we rehearse the facts in the light most hospitable to the
nonmovant, consistent with record support. See Foote v. Town of
Bedford, 642 F.3d 80, 82 (1st Cir. 2011).
On April 12, 2014, a clear, sunny day in Windham, Maine,
plaintiff-appellee Vicki McKenney called 911 at 6:14 a.m. to report
that her husband, 66-year-old Stephen McKenney, was threatening
suicide and had been "aggressive" and "physical" with her. She
told the dispatcher that her home contained firearms. Within a
matter of minutes, Windham police officers James Cook and Seth
Fournier arrived at the McKenney residence and met Mrs. McKenney
(who was standing outside). She explained that her husband had
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been experiencing severe back pain and had "snapped" that morning.
Almost immediately thereafter, a Cumberland County deputy sheriff,
defendant-appellant Nicholas Mangino, drove up in his cruiser to
serve as backup.
The three officers entered the front room of the house
at 6:22 a.m. and encountered McKenney, who appeared to have a gun
in his hand. When asked what he was holding, McKenney replied
".357 Magnum." Although the officers twice directed McKenney to
put the gun down, McKenney did not comply. Still, he never pointed
his weapon at any of them inside the dwelling, nor did he utter
anything resembling a threat.
The officers retreated outdoors, leaving McKenney inside
the house. Officer Fournier placed Mrs. McKenney in his patrol
car, which he then drove to a cul-de-sac at the end of the street
a few hundred yards away. He maintained a clear line of sight,
though, to the garage and driveway of the McKenney home.
Meanwhile, the defendant, armed with his AR-15 rifle, his Taser,
and pepper spray, took cover behind his cruiser (which was parked
roughly 100 feet from the McKenneys' garage).1
The defendant peeked over his car from time to time to
observe the garage and driveway, while simultaneously receiving
1 For the sake of completeness, we note that Zachary Welch, a
civilian who had been invited by the defendant as a ride-along,
was crouched in the defendant's parked cruiser.
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updates about McKenney's movements from Officer Fournier. Between
6:24 a.m. and 6:31 a.m., McKenney ambled nonchalantly around and
about his open garage, driveway, and house. He entered and exited
the dwelling around six times during that seven-minute span. At
about 6:26 a.m., McKenney left the house with his gun dangling
from his hand. The defendant yelled at him three times to "drop
the gun." A few seconds later, McKenney — who was approximately
100 feet away from the defendant — raised the gun over his head.2
By all accounts, McKenney had a vacant stare and appeared "not at
home" mentally. In short order, he lowered the gun without firing
it and continued to weave haphazardly into and out of his house
between 6:26 a.m. and 6:31 a.m.
At approximately 6:31 a.m., Officer Fournier radioed to
the defendant that McKenney, who was still dangling his firearm
and walking leisurely, was in front of the garage. Fournier
stated: "I can't tell, but he might be pointing that, so be
careful." Within seconds, McKenney began walking (still in his
2 At his deposition, the defendant testified that he believed
that McKenney was pointing the weapon in his direction. Because
we are reviewing a summary judgment ruling, however, we recount
the facts in the light most favorable to the nonmovant (here, the
plaintiff). See Foote, 642 F.3d at 82. The district court seems
to have assumed the truth of the fact that the defendant
"reasonably believed" that McKenney "had pointed his gun at him."
McKenney, 2017 WL 1365959, at *12. Any such assumption was, of
course, made only for the sake of argument; otherwise, it would
have been unwarranted. The court was obliged to view the summary
judgment record in the light most hospitable to the plaintiff.
See Foote, 642 F.3d at 82.
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driveway) in the direction of the defendant's parked cruiser. He
was not making any sudden or evasive movements and was not pointing
his gun at anyone. Officer Fournier alerted the defendant that
McKenney was "walking toward your car right now." When McKenney
had reached a point 69 feet away from the cruiser, the defendant
fired an errant shot at McKenney's central mass. Seconds later,
he fired a second shot at McKenney's head, which struck and killed
McKenney. None of the officers had warned McKenney that they would
use deadly force if he refused to drop his weapon.
We fast-forward to February of 2015, when Mrs. McKenney,
qua plaintiff, suing individually and as the personal
representative of McKenney's estate, brought a civil action in a
Maine state court against the defendant and several other persons
and entities.3 As relevant here, the plaintiff sued the defendant
under 42 U.S.C. § 1983, which authorizes suit against any person
who, while acting under color of state law, violates another
person's federally assured constitutional or statutory rights.
See Kalina v. Fletcher, 522 U.S. 118, 123 (1997). Specifically,
the plaintiff's complaint alleged that the defendant's use of
deadly force transgressed McKenney's Fourth Amendment right to be
free from unreasonable seizures.
3 Given the narrowly circumscribed scope of this interlocutory
appeal, it would serve no useful purpose to enumerate the other
parties and causes of actions limned in the complaint.
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The action was seasonably removed to the federal
district court. See 28 U.S.C. §§ 1331, 1441(a). Following
pretrial discovery, the defendant sought summary judgment on,
inter alia, qualified immunity grounds. See Fed. R. Civ. P. 56(a).
The district court denied the motion. Construing the
record in the light most favorable to the plaintiff, the court
ruled that a rational jury could find that it was unreasonable for
the defendant to believe that McKenney "posed an immediate threat
to the safety of the [defendant] or others at the time he was
shot." McKenney, 2017 WL 1365959, at *12. In explaining this
ruling, the court noted that at the time of the shooting, McKenney
was ambulating nonchalantly around his driveway with his gun
dangling by his side and was nearly 70 feet away from the
defendant's cruiser. See id. By the time the defendant pulled
the trigger, it had been approximately six minutes since the
defendant thought he had seen McKenney pointing the gun at him.
See id. Viewing the facts in the requisite light, the court
concluded that a rational jury could find that the defendant "had
ample opportunity to observe [McKenney's] actions and movements
over the course of several minutes, and acted with knowledge of
all of the relevant circumstances." Id. Other facts, such as
McKenney's suicidality, the fact that the last order directing him
to drop his weapon had come approximately six minutes earlier, and
the fact that no one had ever warned McKenney that deadly force
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would be used if he failed to comply with the officers' orders,
"militate[d] against the reasonableness" of the defendant's use of
deadly force. Id. In a nutshell, the court below held that on
the plaintiff's supportable version of the facts, an objectively
reasonable police officer would have understood, at the moment the
shot was fired, that employing deadly force against McKenney would
contravene clearly established law. See id. at *12-13.
This appeal ensued. Notwithstanding the general
prohibition against interlocutory appeals, see 28 U.S.C. § 1291,
the defendant asserts that we have jurisdiction because his appeal
rests on a denial of qualified immunity and his arguments are
purely legal. See Johnson v. Jones, 515 U.S. 304, 319-20 (1995);
Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998).
A district court may only grant summary judgment when
the record, construed in the light most congenial to the nonmovant,
presents no genuine issue as to any material fact and reflects the
movant's entitlement to judgment as a matter of law. See Fed. R.
Civ. P. 56(a); Schiffmann v. United States, 811 F.3d 519, 524 (1st
Cir. 2016). We review rulings granting or denying summary judgment
de novo. See DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.
Subject to only a handful of carefully circumscribed
exceptions, our appellate jurisdiction is restricted to review of
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final orders and judgments. See Johnson, 515 U.S. at 309-10.
Consequently, an interlocutory order denying summary judgment is
typically not appealable when first entered. See 28 U.S.C. § 1291;
Plumhoff v. Rickard, 134 S. Ct. 2012, 2018 (2014).
But an exception to the general requirement of finality
is potentially applicable here. Qualified immunity is a doctrine
that shelters government officials from civil damages liability
"insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Courts long have recognized that qualified immunity consists of
both an immunity from suit and an immunity from damages. See
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Thus, claims of
qualified immunity ought to be resolved at the earliest practicable
time. See Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).
Consistent with this principle, we have held that, notwithstanding
the absence of a final judgment, we have jurisdiction to review
interlocutory rulings implicating qualified immunity as long as
those rulings are purely legal in nature (say, a ruling that a
given body of facts will support a claimed violation of clearly
established law). See Stella v. Kelley, 63 F.3d 71, 74 (1st Cir.
1995) (citing Johnson, 515 U.S. at 316-17). But we may not review,
on interlocutory appeal, an order denying qualified immunity "to
the extent that [the order] turns on either an issue of fact or an
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issue perceived by the trial court to be an issue of fact." Id.
By virtue of this prohibition, we lack jurisdiction to consider a
defendant's argument "that the facts asserted by the plaintiffs
are untrue, unproven, warrant a different spin, tell only a small
part of the story, and are presented out of context." Díaz v.
Martínez, 112 F.3d 1, 5 (1st Cir. 1997).
It follows that defendants who invoke our limited power
of interlocutory review to redress denials of qualified immunity
must be prepared to accept the facts in the light most favorable
to the plaintiff and "develop the argument that, even drawing all
the inferences as the district court concluded a jury permissibly
could, they are entitled to judgment as a matter of law." Cady v.
Walsh, 753 F.3d 348, 359-60 (1st Cir. 2014). In other words, an
appellant must explain why he is entitled to qualified immunity
even if one assumes that the district court properly analyzed the
facts.4 See id. at 361; see also Morse v. Cloutier, 869 F.3d 16,
25 (1st Cir. 2017).
Having erected this jurisdictional framework, we turn
next to the qualified immunity standard. When a defendant invokes
4 The Supreme Court has carved out an isthmian exception to
this rule, instructing courts to disregard the nonmovant's version
of the facts if that version is "blatantly contradicted by the
record." Scott v. Harris, 550 U.S. 372, 380 (2007); see Penn v.
Escorsio, 764 F.3d 102, 105 n.2 (1st Cir. 2014). Here, however,
the defendant does not argue that this exception applies and, in
all events, the record belies its applicability.
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qualified immunity, an inquiring court typically engages in a "twostep
pavane." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017).
First, the court must determine "whether the plaintiff's version
of the facts makes out a violation of a protected right." Id.
Second, the court must determine "whether the right at issue was
'clearly established' at the time of defendant's alleged
misconduct." Id. (quoting Matalon v. Hynnes, 806 F.3d 627, 633
(1st Cir. 2015)). This second step is itself divisible into two
components. To begin, the plaintiff must point to "'controlling
authority' or a 'consensus of cases of persuasive authority'" that
broadcasts "a clear signal to a reasonable official that certain
conduct falls short of the constitutional norm." Id. at 76
(quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)). Then, the
court must evaluate "whether an objectively reasonable official in
the defendant's position would have known that his conduct violated
that rule of law." Id. These inquiries are carried out with the
understanding that qualified immunity is meant to shield "all but
the plainly incompetent or those who knowingly violate the law."
White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (quoting
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).
Before proceeding further, we lay the relevant
constitutional foundation. Here, the background law is supplied
by the Fourth Amendment, which guarantees "[t]he right of the
people to be secure in their persons, houses, papers, and effects,
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against unreasonable searches and seizures." U.S. Const. amend.
IV. A police officer's use of deadly force is deemed a seizure
under the Fourth Amendment, and such an extreme action is
reasonable (and, therefore, constitutional) only when "at a
minimum, a suspect poses an immediate threat to police officers or
civilians." Jarrett v. Town of Yarmouth, 331 F.3d 140, 149 (1st
Cir. 2003) (per curiam) (citing Tennessee v. Garner, 471 U.S. 1,
Timing is critically important in assessing the
reasonableness of an officer's decision to use lethal force. Our
case law is "comparatively generous" to officers facing "potential
danger, emergency conditions or other exigent circumstances," and
we have fashioned "a fairly wide zone of protection" for the police
in borderline cases. Roy v. Inhabitants of City of Lewiston, 42
F.3d 691, 695 (1st Cir. 1994) (citing Graham v. Connor, 490 U.S.
386, 396-97 (1989)); see Berube v. Conley, 506 F.3d 79, 85 (1st
Cir. 2007). But that zone of protection has shifting boundaries.
Everything depends on context, and the use of deadly force, even
if "reasonable at one moment," may "become unreasonable in the
next if the justification for the use of force has ceased." Lytle
v. Bexar Cty., 560 F.3d 404, 413 (5th Cir. 2009). Put another
way, "[a] passing risk to a police officer is not an ongoing
license to kill an otherwise unthreatening suspect." Abraham v.
Raso, 183 F.3d 279, 294 (3d Cir. 1999).
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Among other things, a suspect's physical proximity and
the speed of his movements are highly relevant to this inquiry.
See Kirby v. Duva, 530 F.3d 475, 482–83 (6th Cir. 2008); Walker v.
City of Orem, 451 F.3d 1139, 1160-61 (10th Cir. 2006). When
feasible, a police officer must give some sort of warning before
employing deadly force. See Garner, 471 U.S. at 11-12; see also
Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23
(1st Cir. 2005) (concluding that officer violated Fourth Amendment
by firing "extraordinarily quickly" and without "adequate warning"
at armed man whose gun was "pointed downwards"). Moreover, federal
courts have afforded a special solicitude to suicidal individuals
in lethal force cases when those individuals have resisted police
commands to drop weapons but pose no real security risk to anyone
other than themselves. See Weinmann v. McClone, 787 F.3d 444, 450
(7th Cir. 2015) (collecting appellate precedents holding that, as
of 2007, clearly established law prevented police officers from
employing "deadly force against suicidal people unless they
threaten harm to others"); Mercado v. City of Orlando, 407 F.3d
1152, 1160-61 (11th Cir. 2005) (similar).
Here, the defendant concentrates on the second step of
the qualified immunity paradigm and faults the district court for
failing to identify a sufficiently similar case that would have
served to place him on notice that his use of deadly force violated
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clearly established Fourth Amendment law.5 In his view, the
contours of the relevant Fourth Amendment law were so blurred at
the time that he shot McKenney that he is deserving of qualified
immunity. We have jurisdiction to consider this purely legal
asseveration. See Johnson, 515 U.S. at 316-17; Morse, 869 F.3d at
Jurisdiction notwithstanding, this argument lacks force.
Although the district court frankly acknowledged that it could not
find "[a] case presenting a nearly identical alignment of facts,"
McKenney, 2017 WL 1365959, at *9, such an exacting degree of
precision is not required to thwart a qualified immunity defense.
To be sure, "the clearly established law" employed in a
qualified immunity analysis "must be particularized to the facts
of the case." White, 137 S. Ct. at 552 (internal quotation marks
omitted). This instruction fits hand in glove with the Supreme
Court's warning that, when dealing with qualified immunity, we
should not over-rely on precedents that are "cast at a high level
of generality." Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per
curiam). Even so, there need not be "a case directly on point" to
satisfy the second step of the qualified immunity paradigm.
Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); see Anderson, 483
5 In this appeal, the defendant does not challenge the
district court's finding of a constitutional violation at step one
of the qualified immunity paradigm.
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U.S. at 640; Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004).
The test is whether existing case law has "placed the statutory or
constitutional question beyond debate." al-Kidd, 563 U.S. at 741.
In some cases, "a general constitutional rule already identified
in the decisional law may apply with obvious clarity to the
specific conduct in question." United States v. Lanier, 520 U.S.
259, 271 (1997). What counts is whether precedents existing at
the time of the incident "establish the applicable legal rule with
sufficient clarity and specificity to put the official on notice
that his contemplated course of conduct will violate that rule."
Alfano, 847 F.3d at 76; see Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (per curiam); Hope v. Pelzer, 536 U.S. 730, 741 (2002).
The Court's landmark decisions in Graham and Garner,
which articulate generalized standards for excessive force
liability under the Fourth Amendment, "do not by themselves create
clearly established law outside an obvious case." White, 137 S.
Ct. at 552 (internal quotation marks omitted). But taking the
facts and the reasonable inferences therefrom in the light most
favorable to the plaintiff, the threat presented lacked immediacy
and alternatives short of lethal force remained open. Seen in
that light, this was a case in which the feasibility of a more
measured approach was apparent. Moreover, the district court did
precisely what the Supreme Court has instructed courts to do: it
focused on "the specific context of the case." Brosseau, 543 U.S.
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at 198 (internal quotation marks omitted). With that context in
mind, it relied on well-settled precedents addressing the
lawfulness of using deadly force against an individual who was
suicidal, armed, slow in gait, some distance away from the officer,
and had received no commands or warnings for several minutes. See
McKenney, 2017 WL 1365959, at *9-11. We conclude, without serious
question, that the precedents identified by the district court and
those discussed supra gave the defendant fair warning that, if the
facts were as the plaintiff claimed them to be, his use of deadly
force against McKenney offended clearly established Fourth
Amendment law — and an objectively reasonable officer would have
realized as much. Therefore, the district court properly concluded
that the absence of a precedent on all fours was not dispositive.
In an effort to dull the force of this reasoning, the
defendant makes a series of factbound arguments. Most notably,
the defendant repeatedly insists — contrary to the inferences drawn
by the district court — that he reasonably perceived McKenney as
an imminent danger at the time of the shooting, such that he was
left with no real choice but to fire his weapon. In turn, he urges
reversal in light of evidence that he maintains the district court
either overlooked or insufficiently considered. These facts
include data points such as that McKenney had ignored police
commands to drop his loaded weapon, had at one time raised his
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gun, and was approaching the defendant (and the unarmed civilian
in the defendant's cruiser) at the time he was shot.
But there is a rub: the defendant's characterization of
the summary judgment record collides head-on with the district
court's synthesis of the facts. The defendant either ignores or
gives unduly short shrift to evidence that was central to the
district court's conclusion that, on the version of the facts most
hospitable to the plaintiff, the defendant had "ample opportunity
to observe [McKenney’s] actions and movements" before pulling the
trigger and that the defendant’s decision to shoot McKenney was
"unreasonably precipitous." McKenney, 2017 WL 1365959, at *12-
13. These facts include McKenney's suicidality, the slowness of
his gait, the clear visibility, the fact that six minutes had
elapsed since any officer had last ordered McKenney to drop his
weapon, the fact that nobody had warned McKenney that deadly force
would be used if he failed to follow police commands, and the sixminute
gap between when McKenney raised his gun skywards and when
the defendant pulled the trigger. Rather than accept arguendo
that McKenney never came close to pointing his gun in the
defendant's direction, the defendant devotes much sound and fury
to the proposition that he reasonably perceived McKenney to be
aiming his weapon at him. In short, the defendant has woven
factbound arguments regarding both the immediacy of the threat
posed by McKenney and the feasibility of less drastic action into
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the warp and woof of his challenge to the district court's
qualified immunity analysis. Such an intertwining of disputed
issues of fact and cherry-picked inferences, on the one hand, with
principles of law, on the other hand, places these arguments beyond
our jurisdictional reach on interlocutory appeal. See Cady, 753
F.3d at 359-60; cf. Whitfield v. Meléndez-Rivera, 431 F.3d 1, 8
(1st Cir. 2005) (concluding that the question of whether a suspect
appeared threatening before officer employed lethal force was
properly resolved by the jury).
To sum up, the precedents make pellucid that the most
relevant factors in a lethal force case like this one are the
immediacy of the danger posed by the decedent and the feasibility
of remedial action. See Garner, 471 U.S. at 11-12; Whitfield, 431
F.3d at 8; Young, 404 F.3d at 23. Taking the facts in the light
most amiable to the plaintiff (as the law required it to do), the
district court concluded that a rational jury could reasonably
infer both that McKenney did not pose an imminent threat and that
viable remedial measures had not been exhausted. The court also
concluded that these facts should have been obvious to an
objectively reasonable officer in the defendant's position.
Although the defendant invites us to adopt a spin on the summary
judgment record different from that taken by the district court,
we lack jurisdiction to accept that invitation under Johnson and
its progeny. See Goguen v. Allen, 780 F.3d 437, 455-56 (1st Cir.
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2015) (dismissing appeal for lack of jurisdiction when "defendants
repeatedly ignore[d] evidence, and reasonable inferences
therefrom" on which the court below premised its interlocutory
denial of qualified immunity); Penn v. Escorsio, 764 F.3d 102, 110
(1st Cir. 2014) (dismissing appeal from interlocutory denial of
qualified immunity after "peel[ing] away the facade by which"
defendants portrayed "purely factual disputes" as legal
arguments); Cady, 753 F.3d at 361 (concluding similarly when
defendant failed to concede arguendo that the court below "was
correct in its determinations regarding what inferences were
permissible on the summary judgment record"); Díaz, 112 F.3d at 5
(dismissing appeal for lack of jurisdiction when defendant merely
attempted to take "a different spin" on the facts). Accordingly,
we dismiss the defendant's factbound challenges to the district
court's order for lack of jurisdiction.
* * *
6 We recognize that the defendant faced a challenging
situation. On this scumbled record, though, it is for the jury to
decide whether McKenney presented a sufficiently serious and
imminent threat, such that the defendant's ultimate decision to
use lethal force was objectively reasonable or, at least, belongs
within the "zone of protection" afforded to police officers in
borderline cases. Roy, 42 F.3d at 695.
Outcome: We need go no further. For the reasons elucidated above,
we dismiss the appeal in part for want of appellate jurisdiction
and otherwise affirm the district court's denial of summary
judgment. Costs shall be taxed in favor of the plaintiff.
Of course, our words here are not the end of the matter.
The pretrial denial of qualified immunity is but "a way station in
the travel of a case." Camilo-Robles, 151 F.3d at 9. Depending
on the facts proven at trial and the inferences drawn by the jury,
the defendant may or may not ultimately prevail on his qualified
immunity defense.6 We hold today simply that the defendant's
purely legal challenge is devoid of merit and that his factbound
arguments are inappropriate for interlocutory appeal.