UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Rand, Administrator of the Estate of Wendy Lawrence

v. Case No. 14-cv-570-PB Opinion No.

Chad Lavoie, in both his individual and official capacities

MEMORANDUM AND ORDER

Michael Rand, the administrator of Wendy Lawrence’s estate,

alleges that New Hampshire State Police Officer Chad Lavoie shot

and killed Lawrence in violation of the Fourth Amendment and New

Hampshire law. With discovery closed, Lavoie now moves for

summary judgment, claiming that he is entitled to qualified

immunity. Because Lavoie’s argument depends on facts that

remain in genuine dispute, I deny his request for summary

judgment.

I. BACKGROUND

Except for the moments immediately preceding the shooting,

the events leading up to the interaction between Lawrence and

Lavoie are largely undisputed. On September 30, 2013, New

Hampshire State Police Officer Kevin LeBlanc noticed a maroon Monte Carlo drifting between lanes on Interstate 89 in New

Hampshire. See Doc. No. 60-2 at 1. Lawrence was the driver.

Suspecting a possible instance of driving while

intoxicated, LeBlanc attempted to pull over the Monte Carlo.

See

Although Lawrence initially failed to respond, she

eventually pulled to the side of the road and Officer Leblanc

approached her vehicle. See

After receiving Lawrence’s

identification card and registration, LeBlanc ran her

information and found that she was a “habitual offender” with a

suspended license. See

at 1–2. Before he could view more

of her record, Lawrence drove away at approximately 80–90 mph.

Id. at 2.

LeBlanc pursued Lawrence, but terminated his pursuit

shortly after reporting her information to dispatch. See id. at

2. Continuing along the interstate, however, LeBlanc came

across Lawrence again. See id. This time, he saw that she had

crashed: she was sideways in the left lane of the highway with

other cars pulled off to the right. Id. When LeBlanc drew

closer, Lawrence drove away, nearly hitting a man standing by

the side of her car. See id. LeBlanc reinitiated his pursuit

and was joined by several other police cruisers. See id. Some

officers attempted to deploy spike strips to stop Lawrence but

were unsuccessful. Id.

2 While being pursued, Lawrence took an exit off of the

interstate, heading toward Manchester. See id. At this point,

Lieutenant Matthew Shapiro, who was not on the scene, ordered

the officers to terminate the pursuit. Id.; see Doc. No. 68-5

at 12 (saying “let her go”). The officers accordingly turned

off their lights and sirens, but they continued following

Lawrence through Manchester pursuant to Sergeant Bryan Trask’s

subsequent instruction to “play the area.” See Doc. No. 60-2 at

2. After exiting the interstate, Lawrence stopped at stop

signs, obeyed the speed limit, and otherwise committed no motor

vehicle violations. See Doc. No. 68-2 at 9–11.

As these events were unfolding, Lavoie heard over his radio

that State Police officers were pursuing a vehicle on the

interstate. See Doc. No. 68-4 at 3. Dispatch radioed for

assistance, specifically mentioning Lavoie’s call number, see

Doc. No. 60-8 (recording of dispatch); Doc. No. 60-11 at 1, and

he proceeded to drive toward the pursuit, see Doc. No. 62-6 at

6. Before he encountered Lawrence, however, Lavoie heard Lt.

Shapiro’s and Sgt. Trask’s orders, so he turned off his lights

and siren and “played the area.” See Doc. No. 60-11 at 1; Doc.

No. 68-4 at 5. By the time he encountered Lawrence, Lavoie had

learned that she was driving a maroon or “reddish” Monte Carlo,

see id. at 9; had a suspended license, id.; had refused to stop,

id. at 18; had been driving at 90 mph, id. at 19; and that spike

3 strips had been unsuccessfully deployed, see Doc. No. 60-11 at

1.

In Manchester, Lawrence eventually came to a stop sign at

the intersection of Dave Street and Kennard Road, with LeBlanc

and others still behind her. See id. at 1. The parties dispute

what happened next. According to Lavoie, he pulled in front of

Lawrence as she was coming to the stop sign on Dave Street. See

Doc. No. 60-11 at 1–2. Lavoie then exited his cruiser and came

around its trunk, standing a short distance away from the back-

right bumper. See id. at 2; Doc. No. 62-1. At some point

during this time, Lawrence rammed the right side of Lavoie’s

cruiser, see Doc. No. 68-4 at 44, and Lavoie began commanding

Lawrence to stop her vehicle and raised his firearm. See Doc.

No. 60-11 at 2; Doc. No. 62-6 at 19–20. Lt. Shapiro heard over

the radio around this time that Lawrence had rammed a cruiser,

and he instructed the officers again to “let her go.” Doc. No.

62-5 at 3. Standing near his cruiser’s back-right bumper,

Lavoie saw Lawrence back up and hit the State Police cruiser

behind her, then turn her steering wheel and move toward him in

an arc. See Doc. No. 60-11 at 2. In response, Lavoie

discharged his firearm until Lawrence’s car stopped moving, Doc.

No. 68-6 at 10, firing a total of eleven shots in about three

4 seconds, killing Lawrence. Doc. No. 60-10;1 see Doc. No. 68-1 at

1, 3. Lawrence’s vehicle came to a stop approximately five feet

from Lavoie’s shooting position. See Hearing on Motion for

Summary Judgment held August 7, 2017. Lavoie estimated that

four to five seconds elapsed between exiting his cruiser and

beginning to discharge his weapon. See Doc. No. 68-4 at 69–70;

Doc. No. 68-6 at 22. His version of events is supported

primarily by his own statements and LeBlanc’s, the physical

evidence, and the opinion of ballistics expert Lucien Haag, who

asserted that Lawrence’s vehicle moved toward Lavoie while he

fired. See Doc. No. 62 at 5–9; Doc. No. 85 at 2; Doc. No. 60-24

at 2–3.

Rand tells a very different story. Per Rand, while

Lawrence was stopped at the intersection, Lavoie pulled in front

of her, scraping the right side of his cruiser against the front

of Lawrence’s vehicle. See Doc. No. 68-1 at 19–20. Lavoie then

exited his cruiser and fired eleven shots through Lawrence’s

windshield. See id. at 1, 3, 19. According to Rand, Lawrence’s

vehicle did not move after the collision with Lavoie’s cruiser.

See id. at 20. Because Lawrence did not survive, Rand relies

1 For the purposes of summary judgment, Lavoie stipulates that he hit Lawrence’s Monte Carlo as he pulled in front of it; that the Monte Carlo was stationary when he hit it; and that Lawrence did not make contact with the cruiser behind her, though she did back up in that direction. Doc. No. 85 at 1.

5 principally on the opinion of collision reconstruction expert

Carl Lakowicz to support his version of events. See id. at 18–

20; Doc. No. 68-7 at 3. Lakowicz opined that only one collision

occurred in the relevant timeframe — Lavoie’s cruiser hit

Lawrence’s vehicle — and Lawrence’s vehicle was stationary for

five seconds prior to that collision. See Doc. No. 68-21 at 3–

4. Lakowicz denies that Lawrence’s vehicle was moving toward

Lavoie when he began firing. Id. at 7. Lakowicz also opines

that even if Lawrence’s vehicle were moving towards Lavoie, it

was moving so slowly that he would have had up to 11.25 seconds

to safely step out of the way. See id. at 5.

Rand also relies on the expert opinion of criminologist

George Kirkham. See Doc. No. 68-1 at 10–13. Assuming that

Lawrence’s vehicle moved towards Lavoie, Kirkham opined that no

“competent and properly trained officer” in Lavoie’s position

would have reasonably perceived an imminent threat of serious

bodily harm or “believed that there was no alternative but to

use deadly force.” Doc. No. 68-10 at 5. Kirkham concludes that

Lavoie could have safely stepped outside the path of Lawrence’s

vehicle. See id. at 5–6. He also quotes the 2006 Model Policy

of the International Association of Chiefs of Police, which

provides that officers should step outside the path of moving

vehicles and only use firearms where “a person in the vehicle is

6 immediately threatening the officer or another person with

deadly force by means other than the vehicle.” Id. at 6.

II. STANDARD OF REVIEW

I may grant summary judgment where the moving party “shows

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

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56. “If a nonmovant bears the ultimate burden of proof

on a given issue, she must present ‘definite, competent

evidence’ sufficient to establish the elements of her claim in

order to survive a motion for summary judgment.” Pina v.

Children’s Place,

, 795–96 (1st Cir. 2014) (quoting

Mesnick v. Gen. Elec. Co.,

(1st Cir. 1991)).

I must “draw all reasonable inferences from the record in the

light most favorable to the nonmoving party, disregarding any

‘conclusory allegations, improbable inferences, and unsupported

speculation.’” McGrath v. Tavares,

(1st Cir.

2014) (quoting Alicea v. Machete Music,

(1st

Cir. 2014)). And where the moving party raises a qualified

immunity defense, the nonmoving party has the burden of showing

that qualified immunity does not apply. See Mitchell v. Miller,

, 76–77 (1st Cir. 2015) (second prong); cf. Lopera v.

Town Of Coventry,

, 395–96 (1st Cir. 2011) (first

prong); Ashcroft v. al-Kidd,

, 735 (2011).

7 III. ANALYSIS

Rand brings two claims against Lavoie. First, Rand seeks

to recover under

for the use of excessive force

in violation of the Fourth Amendment.2 Doc. No. 19 at 14. Next,

Rand seeks damages for wrongful death under section 556:12 of

the New Hampshire Revised Statutes. Id. at 15. I consider each

claim in turn.

A. Section 1983 Claim

Lavoie asserts that he is entitled to summary judgment on

Rand’s § 1983 claim because qualified immunity shields him from

suit. The doctrine of qualified immunity reflects a careful

balance between “the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan,

(2009). It “ensure[s] that before they are subjected

to suit, officers are on notice their conduct is unlawful.”

Hope v. Pelzer,

(2002) (quoting Saucier v.

Katz,

, 206 (2001)). In short, qualified immunity

shields “all but the plainly incompetent or those who knowingly

violate the law.” Malley v. Briggs,

(1986).

2 Rand also asserts violations of the Fifth and Fourteenth Amendments. Because he does not assert distinct claims based on these provisions, I do not address them in this Memorandum and Order.

8 1. Legal Standard

To overcome Lavoie’s qualified immunity defense, Rand must

show that Lavoie “violate[d] clearly established statutory or

constitutional rights of which a reasonable person would have

known.” See Mullenix v. Luna,

(2015)

(quoting Pearson v. Callahan,

(2009)). The

First Circuit has explained that there are two aspects to this

inquiry: “(1) whether the facts alleged or shown by the

plaintiff make out a violation of a constitutional right; and

(2) if so, whether the right was ‘clearly established’ at the

time of the defendant’s alleged violation.” Stamps v. Town of

Framingham,

(1st Cir. 2016) (quoting Mlodzinski

v. Lewis,

(1st Cir. 2011)).

A Fourth Amendment excessive force claim requires proof

that “the defendant officer employed force that was unreasonable

under the circumstances.” McGrath,

(quoting

Kenney v. Floyd,

(1st Cir. 2012)). In

general, an officer may not use deadly force defensively or to

prevent escape unless a “reasonable officer [in the same

circumstances] would believe that [an individual] posed a

‘threat of serious physical harm either to the officer or

others.’” See Young v. City of Providence ex rel. Napolitano,

(1st Cir. 2005) (quoting Tennessee v. Garner,

(1985)). But general rules only go so far. In

9 assessing the reasonableness of an officer’s conduct, courts

balance “the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.” Plumhoff v.

Rickard,

(2014) (quoting Graham v. Connor,

(1989)). They must take into account the

“totality of circumstances,” Garner, 471 at 9, and “slosh

[their] way through the factbound morass of ‘reasonableness,’”

Scott v. Harris,

(2007).

The Fourth Amendment’s reasonableness test is objective:

it focuses on how a “reasonable officer on the scene” would act,

rather than an officer’s actual state of mind. See McGrath,

(quoting Kenney,

)). Crucially,

courts must avoid analyzing an officer’s conduct “with the 20/20

vision of hindsight” and should be mindful 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 396–97.

In determining whether a constitutional right is clearly

established, “[w]e ask (a) whether the legal contours of the

right in question were sufficiently clear that a reasonable

officer would have understood that what he was doing violated

the right, and (b) whether in the particular factual context of

10 the case, a reasonable officer would have understood that his

conduct violated the right.” Stamps,

(quoting

Mlodzinski, 648 F.3d at 32–33). Although Rand need not provide a

“case directly on point” to pierce qualified immunity, “existing

precedent must have placed the statutory or constitutional

question beyond debate.” Mullenix,

(quoting

al–Kidd, 563 U.S. at 741). This requires either “controlling

authority or a robust consensus of cases of persuasive

authority.” Plumhoff,

(citation and internal

quotation marks omitted) (dictum).

Furthermore, the Supreme Court has stressed that courts

cannot define a clearly established right “at a high level of

generality,” but instead must determine “whether the violative

nature of particular conduct is clearly established.” Mullenix,

(citation omitted); see also White v. Pauly,

(2017). In other words, an act’s

“unlawfulness must be apparent.” White,

(quoting Anderson v. Creighton,

(1987)). A

right described “at a high level of generality” will suffice

only in “an obvious case.”

at 552 (quoting Brosseau v.

Haugen,

(2004) (per curiam)).

2. Application

Rand contends that Lavoie is not entitled to qualified

immunity for two independent reasons. First, Rand claims he has

11 produced sufficient evidence to create a genuine dispute as to

whether Lawrence’s vehicle moved at all after the collision with

Lavoie. See Doc. No. 68-7 at 3–4. Assuming the vehicle did not

move, he argues that Lavoie’s actions violated the Fourth

Amendment and clearly established law. Second, even if the

vehicle did move toward Lavoie before he began firing, Rand

maintains that a reasonable jury could conclude that, given how

much time Lavoie had to react, he violated the Fourth Amendment

and clearly established law by choosing to use deadly force

instead of stepping safely behind his cruiser. See id. at 4;

Doc. No. 96 at 2. I agree that summary judgment is

inappropriate under either theory.

a. First Theory — Lawrence’s Vehicle Did Not Move

Rand argues that he has presented enough evidence to create

a genuine dispute as to whether Lawrence’s vehicle remained

stationary after Lavoie collided with it. Lavoie retorts that

Rand has not offered adequate evidence to support his version of

events. See Doc. No. 85 at 1–2. I disagree. Rand has done

enough to allow a reasonable jury to accept his account. As

Lavoie concedes that qualified immunity would not apply if

Lawrence’s vehicle did not move, Hearing on Motion for Summary

Judgment held August 7, 2017,3 a genuine dispute of material fact

3 This concession reflects the applicable law: it was clearly established as of 2013 that an officer confronted with a

12 precludes summary judgment. See Thompson v. Coca-Cola Co.,

(1st Cir. 2008) (defining “genuine” and

“material”).

Rand relies principally on the opinion of collision

reconstruction expert Carl Lakowicz for support.4 Lakowicz

opined that Lawrence’s vehicle did not move for five seconds

prior to Lavoie colliding with it. Doc. No. 68-21 at 3.

Lakowicz adequately explained his conclusion with reference to

specific facts. See id.; Hayes v. Douglas Dynamics, Inc.,

(1st Cir. 1993) (“[A]n expert affidavit . . . must

at least include the factual basis and the process of reasoning

which makes the conclusion viable in order to defeat a motion

for summary judgment.”). Based on Lakowicz’s opinion, and the

undisputed fact that Lavoie shot Lawrence, a reasonable jury

could conclude that Lavoie’s version of events is incorrect and

stationary vehicle and a driver who had not exhibited dangerous behavior would not be entitled to use deadly force. See, e.g., Morton v. Kirkwood,

, 1281–82 (11th Cir. 2013); Kirby v. Duva,

, 482–83 (6th Cir. 2008); Adams v. Speers,

(9th Cir. 2007); Lytle v. Bexar County,

(5th Cir. 2009); see also Garner, 471 U.S. at 12–13.

4 Rand is not required to produce his own eye witness. Indeed, in cases like this where the plaintiff’s best (and perhaps only) eyewitness has died, courts should be especially attentive to expert opinion and physical evidence. See Flythe v. District of Columbia,

(D.C. Cir. 2015); Scott v. Henrich,

(9th Cir. 1994).

13 that Lawrence did not move her vehicle at all from the time of

collision through the shooting.

The eyewitness accounts supporting Lavoie’s version of

events do not compel a different conclusion, because Rand has

submitted enough contradictory evidence to allow a reasonable

jury to discredit them. In particular, Lakowicz supportably

opined that only one collision occurred in the relevant

timeframe, when Lavoie’s cruiser hit Lawrence’s vehicle. See

Doc. No. 68-21 at 3–4.5 This conflicts with the eyewitnesses,

who each claim Lawrence initiated two collisions. See Doc. No.

62-4 at 7, 12, 14–15, 32 (LeBlanc deposition); Doc. No. 68-4 at

44 (Lavoie Deposition); Doc. No. 68-12 at 9, 19, 22, 30 (Officer

William Tibbits deposition). A jury could reasonably discount

the eyewitnesses’ testimonies because of their significant

inconsistency with Lakowicz’s expert opinion. See Cruz v. City

of Anaheim,

, 1079–80 (9th Cir. 2014) (denying

summary judgment where reasonable jury could discredit officers’

statements on basis of circumstantial evidence); cf. Nunes v.

Massachusetts Dep’t of Correction,

(1st Cir.

2014) (party may rely on evidence impacting credibility to

create genuine dispute of fact).

5 Collision reconstruction expert Bruce McNally, retained by Lavoie, opined that that Lawrence’s vehicle collided with LeBlanc’s cruiser. See Doc. No. 60-19 at 1–2. Disagreements among experts are for a jury to resolve.

14 Likewise, a jury would not have to accept the opinion of

ballistics expert Lucien Haag that Lawrence’s vehicle moved

towards Lavoie while Lavoie fired. See Doc. No. 85 at 2; Doc.

No. 60-24 at 2–3. Haag reasoned that the bullet holes in

Lawrence’s windshield demonstrate that Lawrence’s vehicle was in

motion when Lavoie fired, assuming Lavoie maintained a

stationary shooting position. See Doc. No. 60-24 at 2–3. Haag

grounds his assumption about Lavoie’s shooting position in

Lavoie’s own words, not on any physical evidence. See id. at 3.

As explained above, however, a jury could reasonably reject

Lavoie’s testimony and correspondingly reject the assumption

underlying Haag’s opinion.6

Finally, although there are some instances in which a

party’s version of events is “so utterly discredited” by video

evidence that a suit cannot proceed to trial, see Scott, 550

U.S. at 380–81, that is not the case here. While a dash-cam

video taken by one of the cruisers following Lawrence exists, it

does not capture the initial collision between Lavoie and

Lawrence, and both remain out-of-frame through the shooting.

6 Haag also supports his opinion with evidence concerning bullet holes in the steering wheel of Lawrence’s vehicle. See Doc. No. 60-24 at 2. According to Haag, the steering wheel must have been turned to a particular position to sustain the damage it did. See id. at 3–4. As Lawrence points out, see Doc. No. 68-7 at 4, it is a matter of commonsense that a turned steering wheel does not necessarily imply a moving vehicle.

15 Accordingly, the video evidence of record does not conclusively

establish that Lawrence moved her vehicle after colliding with

Lavoie’s cruiser.7

Although a reasonable jury might reject Lavoie’s version of

events, it is worth emphasizing that Lavoie has marshalled

substantial evidence to support his account of the shooting, and

a jury could very well conclude that his account is true.

Still, my role at the summary-judgment stage is not “to weigh

the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson

v. Liberty Lobby, Inc.,

(1986). Viewing the

record as I must, Rand has produced sufficient evidence to avoid

summary judgment.

b. Second Theory — Lawrence’s Vehicle Did Move

Although Rand is independently entitled to a trial by

virtue of his first factual theory — that Lawrence’s vehicle did

not move after the collision with Lavoie’s cruiser — Rand

maintains that trial is appropriate even if Lawrence’s vehicle

moved towards Lavoie before he began firing. See Doc. No. 96 at

2; Doc. No. 68-1 at 20. Rand replies that he committed no

7 To the extent Lawrence’s position when last seen in the dash- cam video is inconsistent with her position after the shooting, see Doc. No. 60-23 at 3–4, there would remain a genuine dispute of fact. The video would show, at most, that Lawrence moved after leaving the frame of the dash-cam video, not that she was moving when Lavoie fired.

16 constitutional violation and, in any event, contravened no

clearly established law. Again, I disagree. Viewing Lavoie’s

version of events in the light most favorable to Rand, a jury

could reasonably conclude that Lavoie’s actions violated a

clearly established Fourth Amendment right even if Lawrence’s

vehicle was moving toward him when he fired the fatal shots.

1. Constitutional Violation

As explained above, an officer generally may not use deadly

force defensively or to prevent escape unless a “reasonable

officer [in the same circumstances] would believe that [an

individual] posed a ‘threat of serious physical harm either to

the officer or others.’” See Young,

(citation

omitted). Relying on Lavoie’s version of events — viewed in the

light most favorable to Rand — a jury could determine that a

reasonable officer in Lavoie’s position would not have perceived

Lawrence as presenting a “threat of serious harm” to Lavoie.

Cf.

at 22–23 (noting that, where officers mistakenly used

deadly force against an off-duty officer, jury could have found

officers’ misidentification or haste unreasonable).

After exiting his cruiser, Lavoie had a significant amount

of time to identify any risk that Lawrence might have posed and

largely eliminate that risk by moving behind his cruiser. At

least four to five seconds passed between Lavoie leaving the

17 cruiser and his first shot.8 See Doc. No. 68-4 at 69–70; Doc.

No. 68-6 at 22. A further three seconds passed while Lavoie was

firing. Doc. No. 60-10. And once Lavoie stopped firing,

Lawrence’s vehicle was still roughly five feet away from him.

Thus, based solely on Lavoie’s account, it could have taken

Lawrence’s vehicle eight or more seconds to reach Lavoie after

he left the cover of his cruiser.

Expert opinion buttresses Rand’s argument. George Kirkham

determined that no “competent and properly trained officer”

could have reasonably seen Lawrence as posing an imminent threat

of serious bodily harm or “believed that there was no

alternative but to use deadly force.” Doc. No. 68-10 at 5; see

also Cowan ex rel. Estate of Cooper v. Breen,

, 763–

64 (2d Cir. 2003) (taking into account expert opinion on how a

“reasonably competent officer” would react to oncoming vehicle).

Lavoie should have stepped out of the way. See Doc. No. 68-10

at 5–6. Carl Lakowicz added that “at the speed [Lawrence] was

traveling, it would have taken approximately 11.25 seconds for

[her] car to reach Trooper Lavoie’s shooting position.” Doc.

No. 68-21 at 5.9

8 As previously mentioned, Lavoie concedes for purposes of summary judgment that Lawrence did not ram his cruiser or back into LeBlanc’s. Doc. No. 85 at 1. 9 In a motion to strike, Lavoie attacks the quoted opinion as

conclusory. Doc. No. 87 at 9–10. Lavoie is correct that conclusory expert opinions are insufficient to resist summary

18 Given this evidence, a reasonable jury could surmise that a

reasonable officer in Lavoie’s position would have realized he

had ample time to step behind his cruiser and that Lawrence

therefore did not pose a threat of serious harm to him. See

Abraham v. Raso,

(3d Cir. 1999) (holding in

the alternative that, where officer used deadly force against

approaching driver, officer’s opportunity to get out of way and

uncertainty as to speed of vehicle, inter alia, created jury

question as to reasonableness of officer’s conduct); Acosta v.

City & Cty. of San Francisco,

(9th Cir.

1996), as amended (June 18, 1996) (“On the basis of the evidence

presented at trial, the jury could have reasonably concluded

that a reasonable officer . . . would have recognized that he

could avoid being injured when the car moved slowly, by simply

stepping to the side.” (footnotes omitted)); Cowan, 352 F.3d at

763–64 (holding officer’s use of deadly force against driver

would be unreasonable if, inter alia, driver’s vehicle was

moving slowly and officer was not in vehicle’s path, or if

officer could have gotten out of the way).

judgment, see Hayes,

, but, subject to reassessment during trial, I conclude that the explanation for the quoted opinion is minimally sufficient to support Rand’s position. In any event, the inclusion or exclusion of the opinion would not affect the present order, and Lavoie may renew his objection to Lakowicz’s opinion prior to trial.

19 A jury could likewise conclude that a reasonable officer

would not believe that Lawrence posed a threat to other officers

on the scene or to the public. Lavoie has not suggested that

there was an officer positioned between himself and Lawrence’s

vehicle, and any officer behind Lavoie would have had at least

as much time to avoid the vehicle as Lavoie did. Moreover, an

officer standing by the side of Lawrence’s vehicle would not

have been in significant danger. See Cowan, 352 F.3d at 763–64;

Sigley v. City of Parma Heights,

, 530–31, 536 (6th

Cir. 2006).

As for potential danger to the public, a reasonable jury

could conclude that none of the facts known by Lavoie suggested

that Lawrence posed an imminent threat. Lavoie knew, for

instance, that Lawrence had a suspended license and had been

speeding, see Doc. No. 68-4 at 9, 19, but that kind of conduct

stands in stark contrast to the conduct typically justifying the

use of deadly force against a fleeing suspect, see Scott, 550

U.S. at 379–80 ([f]leeing suspect “rac[ed] down narrow, two-lane

roads in the dead of night at speeds that [were] shockingly

fast[,] . . . swerve[d] around more than a dozen other cars,

cross[ed] the double-yellow line, and force[d] cars traveling in

both directions to their respective shoulders to avoid being

hit”); Plumhoff, 134 S. Ct. at 2021–22 (similar). Statements by

LeBlanc and Lt. Shapiro also provide important context. LeBlanc

20 noted that, once in Manchester, Lawrence stopped at stop signs,

obeyed the speed limit, and otherwise committed no motor vehicle

violations. See Doc. No. 68-2 at 9–11. And Lt. Shapiro

instructed the officers to “let [Lawrence] go” when she exited

the interstate and again when he heard that she had rammed a

cruiser. See Doc. No. 68-5 at 12; Doc. No. 62-5 at 3. These

orders demonstrate that Lt. Shapiro did not view Lawrence as a

threat to the public.

Lavoie relies heavily on McGrath v. Tavares to show that he

committed no constitutional violation. See Doc. No. 62 at 11–

14. McGrath, however, is consistent with the denial of summary

judgment in this case. In McGrath, a suspected liquor store

burglar led two officers on a car chase through a downtown area,

“speeding” and “zigzagging” along the way. See McGrath, 757

F.3d at 22–23. The suspect eventually crashed into a stone

wall, and the officers exited their cruisers after pulling up

behind the suspect’s vehicle. See id. at 23. Instead of

obeying the officers’ commands, the suspect reversed past their

cruisers — hitting a cruiser in the process — and crashed into a

telephone poll. See id. The suspect then drove toward one of

the officers, prompting the officer to fire two shots at the

vehicle. Id. As the suspect passed the officer, moving toward

what the officer believed to be his colleague’s position, the

21 officer fired two more shots. Id. at 23, 28. The First Circuit

found no constitutional violation. Id. at 29.

Whereas the shooting officer in McGrath had to make a

“split-second judgment” about whether “to shoot or risk being

run over,” id. at 28, a jury could find that Lavoie did not have

to make such a time-constrained decision. Instead, it could

conclude — taking into account expert testimony with no apparent

analogue in McGrath — that Lavoie had sufficient time to react

to Lawrence’s movement and avoid the use of deadly force.

Similarly, the shooting officer in McGrath had witnessed the

suspect’s reckless driving and believed his colleague was in the

suspect’s path. See id. at 28–29. In this case, Lavoie

witnessed no such reckless driving and could not have reasonably

believed that other officers were in significant danger.

Finally, the First Circuit stressed in McGrath that “the chase

was still ongoing when” deadly force was used. Id. at 28. In

contrast, Lt. Shapiro twice told officers to “let [Lawrence]

go.” See Doc. No. 68-5 at 12; Doc. No. 62-5 at 3. Thus, a jury

could find that Lavoie’s use of deadly force was not reasonable

as a means to protect himself, other officers, or the public.

I am mindful of the Supreme Court’s instruction to adopt

“the perspective of a reasonable officer on the scene,” and

avoid “the 20/20 vision of hindsight.” Graham,

.

Adhering to that instruction, a reasonable jury could still

22 conclude that Lavoie was not unequivocally “forced to make [a]

split-second” decision entitled to deference. McGrath,

; cf. Kirby v. Duva,

(6th Cir. 2008)

(where officers “each had an adequate opportunity to realize

before shooting that the [decedent’s vehicle] had stopped moving

and that no one was in its path,” there was no need for “‘split-

second’ decision”) (citation omitted). Thus, a jury could find

his conduct objectively unreasonable.

2. Clearly Established Right

For Rand’s claim to survive on the second theory, it is not

enough for Lavoie to have violated the Fourth Amendment.

Qualified immunity attaches unless Lavoie “violate[d] clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Mullenix,

(citation omitted). Reviewing the relevant law, by

September 2013, a “robust consensus of cases” had clearly

established that an officer may not use deadly force to defend

against a slowly approaching vehicle if it would have been clear

to a reasonable officer in the defendant’s position that the

vehicle did not pose an imminent danger to any member of the

public or another officer and the officer had sufficient

opportunity to safely step outside its path.10 Accordingly, a

10By straightforward implication, it was also clearly established that an officer may not use deadly force to defend

23 reasonable officer in Lavoie’s position would have recognized

the unlawfulness of using deadly force in those circumstances.11

other officers against a slowly approaching vehicle if they had sufficient opportunity to step aside. No officer in this instance would have been in greater danger than Lavoie.

Furthermore, it was obvious under Garner,

, that an officer could not use deadly force to prevent the flight of someone suspected merely of speeding and driving with a suspended license. Plumhoff,

, does not compel a contrary conclusion. In Plumhoff, the Supreme Court noted that Brosseau v. Haugen,

(2004) (per curiam), “makes plain that as of February 21, 1999 . . . it was not clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger.” Plumhoff,

. To pierce qualified immunity, the Plumhoff Court continued, the plaintiff had to show that his circumstances were materially different from those in Brousseau or that a new rule had become established after 1999. See id.; see also McGrath,

(employing Plumhoff test). Lawrence’s conduct differs materially from the suspect’s conduct in Brosseau. There, an officer shot a suspect fleeing in a vehicle, believing that the suspect (1) had just been in a violent fight, (2) had not relented when the officer broke the vehicle’s driver-side window and hit the suspect with the butt of her gun, and (3) was driving toward occupied vehicles and officers on foot. Brousseau, 543 U.S. at 195–97. None of these circumstances are present here. Moreover, Lt. Shapiro twice instructed the officers to “let [Lawrence] go,” see Doc. No. 68- 5 at 12; Doc. No. 62-5 at 3, and the evidence in this case could be construed to support a conclusion that Lawrence was obeying speed limits and traffic laws immediately prior to the shooting, See Doc. No. 68-2 at 9–11. Under this view of the evidence, Lavoie would have had no reason to believe that Lawrence posed an imminent risk to the general public if he had stepped aside and let her pass rather than shooting her.

11Put another way, “[o]n the facts as a jury might find them to be in this case . . . it was clear under existing law that” Lavoie violated a constitutional right.” Stamps,

; see also Morelli v. Webster,

(1st Cir. 2009) (reversing grant of summary judgment where “a rational jury could find . . . facts establishing that [officer’s] use of force was so objectively unreasonable and so plainly misguided

24 A number of Courts of Appeals have utilized this clearly

established rule. The Ninth Circuit held in Acosta that an

officer who used deadly force against a slowly approaching

vehicle could be liable for violating the Fourth Amendment where

a reasonable officer “would have recognized that he could avoid

being injured . . . by simply stepping to the side.” See 83

F.3d at 1146–47. The Third Circuit held in the alternative in

Abraham that uncertainties as to whether an officer could “get

out of the way” of an oncoming car precluded summary judgment.

See

. Similarly, the Second Circuit held in

the alternative that if an officer “safely could have gotten out

of the way” of an oncoming car, then his use of deadly force

would have violated the Fourth Amendment. See Cowan, 352 F.3d

at 763–64. Last, the Seventh Circuit suggested in dicta that a

vehicle does not pose a threat of serious bodily harm if an

officer can avoid it. See Estate of Starks v. Enyart,

, 234 n.1 (7th Cir. 1993).

Lavoie attempts to attack this clearly established law by

citing cases where an officer’s use of deadly force against an

advancing driver was found reasonable. See Doc. No. 62 at 16–

17. But even those Courts of Appeals that have found an

that he should not be protected by the shield of qualified immunity”); cf. Cowan, 352 F.3d at 764–65 & n.7 (acknowledging that, in some cases, the questions of constitutional violation and violation of a clearly established right converge).

25 officer’s use of such force to be reasonable implicitly

acknowledge that, at some point, a reasonable officer must step

aside instead of firing. For instance, in Robinson v.

Arrugueta,

(11th Cir. 2005), the Eleventh Circuit

emphasized that an officer confronted with an oncoming vehicle

had, at most, 2.72 seconds to react to the vehicle.

. He therefore was entitled to qualified immunity because

he had to make “a split-second decision of whether he could

escape before he got crushed.” Id.; see also Thomas v.

Durastanti,

(10th Cir. 2010) (noting officer

“had mere seconds to react” to an oncoming vehicle). If an

officer has ample time to respond to a potential threat,

however, the logic of Robinson does not apply. The same can be

said for the rationales underlying similar cases decided by the

First and Seventh Circuits after 2013. See McGrath,

(noting that officer had to make a “split-second judgment”

about whether to use deadly force against driver); Tolliver v.

City of Chicago,

(7th Cir. 2016) (noting that

“officers had only seconds to react to the threat” of an

oncoming vehicle). Lavoie’s argument only reinforces the

clearly established rule. Thus, even on the theory that

Lawrence’s vehicle was moving toward Lavoie when he fired,

26 Lavoie would not be entitled to qualified immunity at this

stage, and Rand’s claim survives.12

B. State Law Claim

In addition to his federal claim under § 1983, Rand seeks

damages under state law for Lawrence’s wrongful death. See Doc.

No. 19 at 15. Section 556:12 of the New Hampshire Revised

Statutes allows for the administrator of an estate to collect

damages resulting from the “injury complained of in [an]

action.” Lavoie seeks summary judgment with respect to this

claim on grounds of official immunity.13 I conclude that

official immunity cannot attach at this time.

New Hampshire’s official immunity statute provides state

officers with immunity against suits “arising from acts

12Given my resolution of Lavoie’s motion for summary judgment on the § 1983 claim, I need not address Rand’s argument that an officer may not use deadly force in self-defense where he or she recklessly creates the applicable danger. See Doc. No. 68-1 at 10.

13Lavoie advances two additional arguments, neither of which is persuasive. First, Lavoie argues that § 556:12 does not provide a cause of action but merely allows for certain damages to be collected in an independent claim. See Doc. No. 62 at 18. Even if Lavoie is correct in his interpretation of § 556:12, Rand’s complaint plainly provides sufficient facts to support a common- law battery claim, which can serve as the basis for wrongful death damages. See Doc. No. 19 at 2–3; Restatement (Second) of Torts § 13 (Am. Law Inst. 1965). Second, Lavoie asserts he is entitled to sovereign immunity. Doc. No. 62 at 18. His brief, however, appropriately concedes that sovereign immunity applies only to the state. See id. at 18–19; see also §§ 99-D:1, 541- B:19.

27 committed within the scope of their official duty while in the

course of their employment for the state and not in a wanton or

reckless manner.”

-D:1. When the

claims involved are for intentional torts like battery, the New

Hampshire Supreme Court has held that officers are entitled to

official immunity only if they (1) “subjectively believed that

[their] conduct was lawful” and (2) they did not objectively act

“recklessly or wantonly as to the lawfulness of their conduct.”

Farrelly v. City of Concord,

, 444–46 (2015).14

New Hampshire law permits police officers to use deadly

force under only two circumstances. An officer may use deadly

force “when he reasonably believes such force is necessary . . .

[t]o defend himself or a third person from what he reasonably

believes is the imminent use of deadly force.”

(II)(a). Deadly force may also be used “when [the

14Farrelly concerned municipal police officers, who are entitled to official immunity through the common law, not § 99-D:1. See

. I conclude that the New Hampshire Supreme Court would likely employ the same standards for statutory official immunity as it does for common-law official immunity. See Everitt v. Gen. Elec. Co.,

(2007) (basing scope of common-law official immunity on, inter alia, scope of statutory official immunity); Laramie v. Stone,

(2010) (stating official immunity statute “is simply a statement of policy adopting the common law doctrines of sovereign and official immunity”); see also R.N. v. Rogan,

(citing common-law official immunity cases in suit against New Hampshire State Police officer), appealed docketed, No. 17-1267 (1st Cir. Mar. 22, 2017).

28 officer] reasonably believes such force is necessary . . . [t]o

effect an arrest or prevent the escape from custody of a person

whom he reasonably believes . . . [h]as committed or is

committing a felony involving the use of force or violence, is

using a deadly weapon in attempting to escape, or otherwise

indicates that he is likely to seriously endanger human life or

inflict serious bodily injury unless apprehended without delay.”

§ 627:5(II)(b).

I conclude that summary judgment on the basis of official

immunity is not appropriate. Even assuming that Lavoie

subjectively believed in the lawfulness of his actions, a jury

could conclude that Lavoie acted recklessly or wantonly, if, as

specified above, either Lawrence’s vehicle did not move after

colliding with Lavoie’s cruiser or Lawrence’s vehicle moved

slowly toward Lavoie before he fired.

On the first theory, I must assume that Lawrence’s vehicle

did not move after colliding with Lavoie’s cruiser, because Rand

has created a genuine factual dispute on that point. On those

facts, Lavoie’s decision to shoot Lawrence could be found

reckless or wanton. Given what Lavoie knew about Lawrence’s

preceding conduct, a stationary Lawrence obviously posed no

threat of imminent harm to Lavoie or other officers. See §

627:5(II)(a). It was likewise obvious that Lawrence had not

committed “a felony involving the use of force or violence,” was

29 not attempting to escape, and posed no threat to others. See §

627:5(II)(b).

The facts under the second theory yield the same result.

Assuming Lavoie’s version of events, viewed in the light most

favorable to Rand, a jury could conclude that Lavoie acted

recklessly or wantonly. The jury may reasonably determine that,

given the amount of time that Lavoie had to react to Lawrence’s

movement, it was clearly not necessary for Lavoie to defend

himself or others with deadly force. See § 627:5(II)(a); see

also Doc. No. 68-10 at 5–6 (Kirkham opinion). Moreover, merely

attempting to flee does not constitute a violent felony or

demonstrate that Lawrence posed a threat to others. See §

627:5(II)(b). And although vehicles may sometimes represent

deadly weapons, a jury could reason that Lawrence’s vehicle was

moving so slowly that it could not be seen as a deadly weapon

employed in Lawrence’s escape. See id. Thus, under either of

Rand’s theories, summary judgment on the state claim is

inappropriate.15

15At oral argument and in subsequent briefing, Rand asked me to consider evidence submitted under seal when evaluating Lavoie’s state law immunity claim. See Doc. No. 142 at 1–2. Having reviewed Rand’s brief and Lavoie’s reply, I find the disputed evidence to be irrelevant to this order because it is not a factor in the objective prong of official immunity, and I have assumed for purposes of analysis that Lavoie subjectively believed in the lawfulness of his actions. Therefore, I have not considered the disputed evidence in deciding Lavoie’s motion for summary judgment.

30 IV. CONCLUSION

For the reasons explained above, I deny Lavoie’s motion for

summary judgment (Doc. No. 60).

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

September 5, 2017

cc: Charles G. Douglas, III, Esq. Richard J. Lehmann, Esq. Karen A. Schitzer, Esq. Matthew T. Broadhead, Esq. Rebecca Woodard Ross, Esq. Kenneth A. Sansone, Esq. Seth Michael Zoracki, Esq.

31