St. Hilaire v. Laconia CV-93-191-B 03/31/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kathy St. Hilaire

v. Civil Action No. 93-191-B

City of Laconia, et al.

MEMORANDUM AND ORDER

Laconia Police Department Detective David Gunter shot and

killed Philip St. Hilaire while executing a search warrant.

St. Hilaire's wife, Kathy, has sued Gunter, the other officers

involved in executing the warrant, and their employers. She

argues that the defendants violated her husband's Fourth

Amendment rights because: the warrant authorizing the search was

not supported by probable cause; defendants omitted material

facts from the affidavit supporting the warrant application; and

defendants unreasonably used deadly force in executing the

warrant. She also alleges that defendants are liable under

various state law theories. Defendants have responded with

summary judgment motions contending that the individual

defendants are protected from suit on her federal claims by the

doctrine of gualified immunity. They also argue that plaintiff has failed to state a constitutional claim against the municipal

defendants. Finally, defendants ask me to decline supplemental

jurisdiction over plaintiff's state law claims.

I. FACTS

On April 27, 1990, Belknap County Deputy Sheriff Robert

Dupuis applied for a warrant to search Philip St. Hilaire and his

business, Laconia Auto Wrecking, for cocaine, drug paraphernalia,

and materials related to drug trafficking. Dupuis provided an

affidavit in support of the warrant application that included

information from a confidential informant who allegedly told

Dupuis that St. Hilaire was selling cocaine at Laconia Auto

Wrecking. Dupuis further alleged in his affidavit that: the

informant had purchased cocaine from Laconia Auto Wrecking on two

occasions under police supervision within the last two weeks;

Dupuis was able to partially corroborate the informant's claim

that St. Hilaire was planning a trip to New York to purchase

cocaine; and two of Dupuis' fellow officers had previously

obtained reliable information from the informant. Based on this

information, a special justice of the Laconia District Court

issued the warrant the same day.

2 After Dupuis obtained the warrant, he and other law

enforcement personnel, including defendants Gunter, David Nielsen

and Brian Loanes of the Belmont Police Department, and Daniel

Collis of the Belknap County Sheriff's Office, met at the

sheriff's office to plan the searches. The group decided that

Nielsen, Loanes, and Dupuis would form a team to find and search

St. Hilaire. Nielsen volunteered to wear his uniform and the

others agreed that they would remain in plain clothes. Collis

and Gunter were assigned to surveillance across the street from

Laconia Auto Wrecking. All of the defendants were warned that

St. Hilaire was likely to be armed.

The defendants planned to search St. Hilaire while he was at

work. Accordingly, the search team agreed to meet in the parking

lot of the nearby vocational-technical school and to walk through

the woods to the rear of Laconia Auto Wrecking. They would then

wait at the back corner of the building with Collis and Gunter

watching the front to let them know if the building appeared to

be open for business. They also planned to station patrolmen in

marked cruisers on the road on either side of Laconia Auto

Wrecking. If surveillance reported that the building appeared to

be open, the search team would come to the front of the building,

enter with Nielsen in uniform leading, and confront St. Hilaire

3 inside the building. If the building was closed for business,

they would either try to break in or wait for St. Hilaire to

leave the building and apprehend him in the yard.

At first, all went according to plan. The cruisers and

surveillance were in place. The search team assembled in the

parking lot and then walked to the rear of the building. When

they learned from surveillance that the building appeared to be

locked, Dupuis called Gunter at his position in the parking lot

across the street and instructed him to join the search team.

While they were waiting for tools and making plans to break in,

Collis radioed that St. Hilaire was leaving the building. The

group then immediately ran to the front of the building and saw

that St. Hilaire was sitting in the driver's seat of his car with

his back to the approaching officers.

Instead of approaching St. Hilaire in a group with Nielsen

in uniform leading as planned, the officers ran toward the car

from behind, with their weapons drawn, in single file separated

by ten to fifteen feet. Gunter, in plain clothes, was in the

lead, followed by Dupuis, Nielsen, and Loanes. The officers

contend that they shouted a series of orders to St. Hilaire with

some variation in their accounts. Gunter states that he said

"Phil, Phil, police" as he approached the rear of the car, and

4 that he thought he may have yelled, "Hold it" or "Police, " when

he arrived at the passenger door. Nielson reports that he heard

Gunter yell, "Hold it Phil, police, hold it," as Gunter

approached the passenger side of the car and that no one else

said anything. Dupuis claims that he yelled, "Police," once or

twice as he came around the corner of the building but stopped

because other people were yelling. Loanes states that he did not

shout anything, but he heard others say, "Police freeze," or

"Phil, its the police," or "Freeze, its the police." Collis

states that he heard yelling from one officer, he did not know

who, including the word "Police." Finally, a motorist passing

the building at the time reported that he heard a shout of

"Freeze" just before seeing the flash of a gunshot.

Gunter ran to the passenger side of the car with his gun in

his right hand. When Gunter reached the car, St. Hilaire turned

and made eye contact with him. At the same time, Gunter saw St.

Hilaire's right shoulder move and later claimed that he thought

that St. Hilaire was reaching for his gun. Gunter then shot St.

Hilaire through the partially open passenger window.

Nielsen opened the driver-side door and found St. Hilaire

slumped in the seat with a critical throat wound. St. Hilaire's

gun was found next to him on the seat of his car. Nielsen

5 reports that St. Hilaire asked him, "Why didn't he identify

himself, why didn't he say he was a cop," and others state that

St. Hilaire repeated the same questions at the hospital. As a

result of the gunshot wound, St. Hilaire was paralyzed from his

neck down. He died from complications caused by his injuries

approximately eighteen months after the shooting.

II. STANDARD OF REVIEW

Summary judgment is appropriate if, after reviewing the

facts in the light most favorable to the nonmoving party, "the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law." Fed.

R. Civ. P. 56(c); Woods v. Friction Materials, Inc.,

(1st Cir. 1994). A "genuine" issue is one "that properly can

be resolved only by a finder of fact because [it] may reasonably

be resolved in favor of either party." Anderson v. Liberty

Lobby, Inc.,

(1986); accord Garside v. Osco

Drug, Inc.,

(1st Cir. 1990). A "material issue"

is one that "might affect the outcome of the suit" under the

applicable legal standard. Anderson,

. The

6 burden is upon the moving party to show the lack of a genuine,

material factual issue. Finn v. Consolidated Rail Corp.,

(1st Cir. 1986). When a motion for summary judgment

is properly supported, the burden shifts to the nonmovant to show

that a genuine issue exists. Donovan v. Agnew,

(1st Cir. 1983). If the nonmovant fails to offer sufficient

factual support to counter the movant's proffer on an element for

which the nonmovant bears the burden of proof at trial, all other

factual issues become immaterial, and the movant is entitled to

summary judgment. Smith v. Stratus Computer, Inc., 4 0 F.3d 11,

12 (1st Cir. 1994), petition for cert, filed, (Feb. 21, 1995).

III. DISCUSSION

The primary issue presented by defendants' summary judgment

motions is whether the individual defendants are entitled to

gualified immunity with respect to plaintiff's constitutional

claims. Thus, I begin by describing the law governing gualified

immunity claims and then consider its application to plaintiff's

specific claims that the individual defendants violated St.

Hilaire's Fourth Amendment rights. I then turn to defendants'

challenges to plaintiff's remaining claims.

7 A. Qualified Immunity for Constitutional Claims Against the Individual Defendants

In Harlow v. Fitzgerald,

(1982), the

Supreme Court recognized that public officials performing

discretionary functions are entitled to gualified immunity from

suit for violations of federal law "insofar as their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known." A

"necessary concomitant to the determination of whether the

constitutional right asserted by a plaintiff is 'clearly

established' at the time the defendant acted is the determination

of whether the plaintiff has asserted a violation of a

constitutional right at all." Siegert v. Gilley,

(1991). Thus, a court may determine that a defendant is

entitled to gualified immunity if either the plaintiff fails to

properly assert and support a claim based on the violation of a

constitutional right, or the court concludes that the law on

which plaintiff's claim was based was not clearly established

when the defendants acted.

see also Febus-Rodriguez v.

Betancourt-Lebron,

(1st Cir. 1994) (holding that

as a predicate to the gualified immunity inguiry, "a plaintiff

must establish that a particular defendant violated the plaintiff's federally protected rights.").

The resolution of a qualified immunity defense presents a

legal question for the court. Elder v. Holloway,

(1994); Whiting v. Kirk,

(1st Cir. 1992).

Moreover, since the immunity is an immunity from suit rather than

merely a defense to liability, it is imperative that such claims

be resolved at the earliest possible date after suit is

commenced. Siegert,

. Thus, I will determine

defendants' entitlement to immunity on their motions for summary

judgment unless factual disputes material to the issue require

resolution by the jury before I can resolve the legal questions

their motions present. See Prokev v. Watkins,

, 73

(1st Cir. 1991).

1. Probable Cause

Plaintiff first claims that she is entitled to damages

because the defendants lacked probable cause to seize St.

Hilaire. Probable cause to issue a warrant exists if the

totality of the circumstances related in the affidavit, viewed

with common-sense, presents a fair probability that the proposed

search will find contraband or evidence of a crime. United

States v. Jordan,

(1st Cir. 1993) (citing Illinois v. Gates,

(1983)). Under the totality

of the circumstances test, the value of a confidential

informant's information is evaluated in light of all the indicia

of its reliability, and a deficiency in one area may be

compensated by the strength of other relevant factors. United

States v. Diallo,

(1st Cir. 1994) (citing Gates,

).

The affidavit that Dupuis submitted in support of the search

warrant application alleges that: (1) St. Hilaire owned Laconia

Auto Wrecking; (2) an informant, whose established record of

providing reliable information was detailed in the affidavit,

reported that St. Hilaire was selling cocaine at his place of

business; (3) the informant, acting under police supervision,

subseguently purchased cocaine at St. Hilaire's business on two

occasions in the weeks prior to the seizure; (4) the informant

told the defendants that St. Hilaire was planning a trip to New

York to purchase cocaine; and (5) airline records confirmed that

St. Hilaire had made a reservation around the same time as the

informant's report on a flight to New York's LaGuardia Airport.

These allegations sufficiently demonstrate the informant's

reliability and corroborate his claim that St. Hilaire was

engaged in the business of selling cocaine to support the issuing

10 judge's probable cause finding even though the affidavit does not

expressly allege that the informant purchased cocaine directly

from St. Hilaire. See Gates,

; see also Jordan,

. Accordingly, because plaintiffs have not

shown that the search warrant lacked probable cause, defendants

are entitled to immunity with respect to plaintiff's probable

cause claim.

2. Material Omissions

Plaintiff next argues that St. Hilaire's seizure was

unlawful because Dupuis failed to disclose in his affidavit that

his informant was induced to provide information against St.

Hilaire through offers of unspecified "consideration" with

respect to several outstanding felony charges. The Supreme Court

has recognized that a police officer's reckless or intentional

misstatements of material fact in a search warrant affidavit

violate the Fourth Amendment. Franks v. Delaware,

(1978). This rule has been extended by various courts of appeal

to include an affiant's intentional or reckless omission of

material facts. See United States v. Higgins,

(1st

Cir. 1993); United States v. Knapp,

(10th Cir.

1993); United States v. Travis,

(8th Cir.),

cert, denied, 114 S. C t . 229, 245 (1993). When plaintiff claims

11 a Fourth Amendment violation based on alleged omissions of

material facts from a warrant application, the merit of the claim

depends on "'whether, even had the omitted statements been

included in the affidavit, there was still probable cause to

issue the warrant.'" Higgins,

(quoting United

States v. Rumnev,

(1st Cir.), cert, denied,

(1989) ) .

Even if Dupuis's affidavit had been corrected to include the

"consideration" the police offered the informant, it still would

have demonstrated probable cause to justify the search because

the affidavit contained enough corroboration and sufficient

evidence of the informant's past reliability to establish the

probable accuracy of the informant's information. Thus,

plaintiff has failed to properly support her material omissions

claim, and therefore, defendants are entitled to immunity with

respect to this claim.

3. Excessive Force

Plaintiff's final claim is that defendants used

unconstitutionally excessive force in executing the warrant.

a. Fourth Amendment Reasonableness and Qualified Immunity

Excessive force claims arising during the course of a police

12 search or seizure must be analyzed under the Fourth Amendment's

reasonableness clause. Graham v. Connor,

(1989).1 Precedent dictates that the reasonableness of searches

and seizures must be evaluated by considering whether the

officer's conduct was objectively reasonable when judged "from

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

with the 20/20 vision of hindsight."

. Moreover,

"[t]he calculus of reasonableness must embody allowance for 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."

. Ultimately, the

reasonableness of an officer's use of force will be determined by

"careful balancing of the nature and guality of the intrusion on

the individual's Fourth Amendment interests against the

countervailing governmental interests at stake."

(guotations omitted).

Because a determination of both liability for and immunity

Plaintiff alleged in her complaint that defendants' use of deadly force also violated St. Hilaire's right to substantive due process. However, in light of Graham, plaintiff has abandoned this cause of action.

13 from claims based on violations of the Fourth Amendment's

reasonableness clause require an inquiry into the objective

reasonableness of a defendant's conduct, some courts in other

circuits appear to suqqest that the same test should be used to

evaluate both the substantive claim and the immunity defense.

See Wardlaw v. Pickett,

(D.C. Cir. 1993), cert.

denied, 114 S. C t . 2672 (1994); Hopkins v. Andava,

,

885 n.3 (9th Cir. 1992); Jackson v. Hoylman,

(6th Cir. 1991); Street v. Parham,

, 540-41 n.2 (10th

Cir. 1991). Followinq a similar approach, the First Circuit in

Roy v. Inhabitants of Lewiston,

(1st Cir. 1994), held

that the defendants were entitled to immunity from plaintiff's

excessive force claim, but observed that because the substantive

standard and the immunity standard in such cases turns on whether

the officer's conduct was objectively reasonable, the outcome

probably would have been the same even if the officers had not

raised an immunity defense. I_ci. at 695.

While these cases miqht be read to suqqest that a defendant

in an excessive force case can never claim immunity if the

plaintiff pleads and properly supports a claim that defendants

unreasonably used excessive force, that interpretation is plainly

inconsistent with Supreme Court precedent. In Anderson v.

14 Creighton,

(1987), the Supreme Court held that a

police officer is immune from suit for an alleged violation of

the Fourth Amendment's reasonableness clause if his conduct was

objectively reasonable when "assessed in light of the legal rules

that were 'clearly established' at the time it was taken."

(citation omitted). The dissent contended that the

majority's formulation was incorrect because it would improperly

entitle a defendant to immunity even if he reasonably, but

mistakenly, concluded that his conduct was objectively

reasonable.

(Stevens, J., dissenting) (contending

that the majority improperly adopted "a double standard of

reasonableness - the constitutional standard already embodied in

the Fourth Amendment and an even more generous standard that

protects any officer who reasonably could have believed that his

conduct was constitutionally reasonable."). The majority

countered by noting that in past applications of the doctrine of

gualified immunity, the Court had afforded immunity protection to

officers who had allegedly violated the Fourth Amendment. In

addition, the majority explained that the confusion caused by

using the terms "reasonable" and "unreasonable" to describe both

immune conduct and Fourth Amendment violations did not preclude

using a different "reasonable" standard for evaluating the

15 immunity defense. I_d. at 643.

Anderson thus requires that a court consider two factors in

evaluating an immunity defense to a claim based upon the Fourth

Amendment's reasonableness clause: (1) whether a constitutional

violation occurred at all; and (2) "'whether a reasonable

[officer] could have believed his actions were lawful in light of

clearly established law and the information the official

possessed at the time of his allegedly unlawful conduct.'"

Febus-Rodriguez,

(quoting McBride v. Tavlor,

(1st Cir. 1991)). Accord Jones by Jones v. Webb,

(7th Cir. 1995) (holding that qualified immunity

defenses to excessive force claims must be analyzed by asking

"whether a reasonable officer could have believed that his

conduct was constitutional in light of the clearly established

law and the information the officer possessed at the time the

incident occurred." (quotations and citations omitted)).

Accordingly, an officer is entitled to claim qualified immunity

in a police misconduct case even if he acted unreasonably unless

the law under which the officer's conduct is deemed unreasonable

was clearly established when he acted.

16 b. Application

In Tennessee v. Garner,

(1985), the Supreme

Court stated that "[w]here the officer has probable cause to

believe that the suspect poses a threat of serious physical harm,

either to the officer or to others, it is not constitutionally

unreasonable to prevent escape by using deadly force." See also

Reese v. Anderson,

(5th Cir. 1991); Smith v.

Freland,

(6th Cir.), cert, denied, 112 S. C t .

1954 (1992). Relying on this principle, defendants argue that

they are entitled to gualified immunity because the undisputed

facts establish that when Gunter shot St. Hilaire, he reasonably

believed that St. Hilaire was about to use deadly force against

him. Plaintiff offers two arguments to support her claim that

defendants are not entitled to summary judgment on this issue.

First, she argues that a genuine factual dispute exists as to

whether Gunter reasonably needed to use deadly force against St.

Hilaire to protect himself. Second, she contends that even if

Gunter acted in self-defense, defendants violated the Fourth

Amendment by attempting to execute the warrant in a way that

unreasonably increased the likelihood that they would have to use

deadly force.

17 Plaintiff's first argument is easily addressed. While

witnesses to the shooting disagree about minor details, no one

disagrees that: (1) St. Hilaire was known to carry a weapon; (2)

St. Hilaire's gun was found on the seat beside him after the

shooting; and (3) the record contains no direct evidence to

contradict Gunter's testimony that he shot St. Hilaire only after

he reached for his weapon. Plaintiff's assertions that St.

Hilaire lacked sufficient time to draw his weapon and that the

position of his body when he was shot demonstrates that he could

not have been reaching for his gun amount to little more than

speculation. As such, they are insufficient by themselves to

create a genuine dispute as to whether Gunter reasonably believed

he had to use deadly force against St. Hilaire to defend himself.

Plaintiff's second argument raises more troubling guestions.

Although she points to several alleged deficiencies in the way in

which defendants planned and executed St. Hilaire's seizure,

plaintiff's most potent claim is that defendants unreasonably

increased the likelihood that they would need to use deadly force

by approaching St. Hilaire in plain clothes, with their guns

18 drawn and without identifying themselves as police officers.2

Had they properly identified themselves, plaintiff argues, St.

Hilaire would have offered no resistance. Moreover, she contends

that defendants' failure to identify themselves was unreasonable

because they could easily and safely have done so without

impairing their ability to subdue and search St. Hilaire.3

There is some support for the proposition that a police

officer who resorts to deadly force in self defense violates the

Fourth Amendment if he unreasonably creates the circumstances

where the use of deadly force becomes necessary. See, e.g..

Defendants have produced substantial evidence to counter plaintiff's claim. However, I assume, without deciding, that plaintiff has produced enough factual support for her claim to raise a genuine factual dispute as to whether defendants identified themselves as police officers when they approached St. Hilaire's vehicle.

3 It is well established that a person's Fourth Amendment rights are not implicated until a seizure actually occurs. California v. Hodari P.,

(1991); Brower v. County of Inyo,

(1989). Accordingly, plaintiff does not contend that St. Hilaire's Fourth Amendment rights attached as soon as defendants drew their guns and approached his vehicle. Instead, she argues that St. Hilaire was "seized" when he was shot and, irrespective of whether Gunter was justified in using deadly force to defend himself at the moment of the shooting, the seizure violated St. Hilaire's Fourth Amendment rights because defendants' unreasonable conduct prior to the shooting increased the risk that one of them would have to use deadly force to subdue St. Hilaire.

19 Estate of Starks v. Enyart,

(7th Cir. 1993) (if

officer deliberately stepped in front of a moving vehicle, he may

not invoke self defense as a defense to a damages claim for

shooting the vehicle's driver); Gilmere v. Atlanta,

, 1501 (11th Cir. 1985) (en banc) (officer cannot claim

immunity from a deadly force claim by arguing self defense if the

officer created the circumstances where it became necessary to

use deadly force in self defense), cert, denied,

,

1124 (1986). However, neither the Supreme Court nor the First

Circuit Court of Appeals4 has yet taken such a position, and

there is substantial authority elsewhere to support the contrary

proposition.

Although the First Circuit held prior to Graham that police officers who use deadly force against people who pose no danger to the officers or others without first providing a warning violate the victims' rights to substantive due process, Gutierrez-Rodriguez v. Cartagena,

(1st Cir. 1989), Gunter's reasonable belief that St. Hilaire was about to shoot him distinguishes this case from Gutierrez-Rodriguez. Also, although the Supreme Court held in Garner that the Constitution reguires police to provide a warning, j_f feasible, before using deadly force when a dangerous suspect flees or threatens them or others. Garner,

, no warning was feasible in the split-second between when Gunter believed St. Hilaire was about to shoot him and he acted in self defense. Thus, neither Gutierrez nor Garner provide clearly established law applicable to the circumstances in this case.

20 In dissenting from the denial of certiorari in one of the

few cases supporting plaintiff's argument, then Chief Justice

Burger stated that the court should have granted certiorari to

reverse the decision because "an officer's conduct which makes

the need for deadly force more likely does not constitutionally

disable the officer from later using deadly force to defend

himself." Sampson v. Gilmere,

, 1125 (1986).

Further, in Prewitt v. Pratt,

(4th Cir. 1993), the

Fourth Circuit Court of Appeals expressly rejected a claim that

an officer who resorts to deadly force in self defense

nevertheless violates the Fourth Amendment if he unreasonably

provokes the shooting by failing to properly identify himself as

a police officer.

. Other circuits have reached

similar conclusions. See, e.g.. Carter v. Buscher,

(7th Cir. 1992); Cole v. Bone,

, 1232-

33 (8th Cir. 1993) .

Given these conflicting precedents, the law concerning

whether a police officer who legitimately uses deadly force in

self-defense nevertheless violates the Fourth Amendment by

unreasonably increasing the likelihood that deadly force will

become necessary was not clearly established when the defendants

acted. See Sullivan v. Horta,

(1st Cir. 1993).

21 Accordingly, the defendants are entitled to prevail on their

qualified immunity defense.

B. Municipal Defendants

Plaintiff alleges that the Town of Belmont, the City of

Laconia, and Belknap County are "jointly and severally liable" on

her federal claims with the individual defendants. However,

these claims allege solely a respondeat superior theory which is

not cognizable under § 1983. See Monell v. Department of Social

Servs.,

(1978); Manarite v. Springfield,

, 958 (1st Cir.), cert, denied,

(1992).

These claims are dismissed.

C. Pendent State Claims

Having dismissed plaintiff's federal claims, I decline to

retain supplemental jurisdiction over her remaining state law

claims. See

(c)(3). Accordingly, I dismiss

these claims without prejudice.

IV. CONCLUSION

For the foregoing reasons defendants' motions for summary

judgment (documents 16 and 19) are granted as to all of

22 plaintiff's federal claims. Plaintiff's state law claims are

dismissed without prejudice.

SO ORDERED.

Paul Barbadoro United States District Judge

March 31, 1995

cc: Donald Perreault, Esq. Wayne Beyer, Esq. A. Gerard O'Neil, Esq. David Bownes, Esq.

23