UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gregory Lambert, as Administrator of the Estate of Harrison Lambert

v. Case No. 17-cv-404-AJ Opinion No.

Town of Merrimack, et al.

MEMORANDUM ORDER

On September 3, 2015, two Merrimack police officers shot

and killed Harrison Lambert while responding to a domestic

disturbance at his home. Lambert's father, Gregory Lambert,

brings this action as administrator of his son's estate,

alleging that the officers violated Lambert's Fourth Amendment

right to be free from excessive force and that the Town of

Merrimack violated the Americans with Disabilities Act (ADA) and

Section 504 of the Rehabilitation Act by failing to accommodate

Lambert's known mental disability. The Estate also brings

several state-law claims against all three defendants. The case

was assigned to the undersigned magistrate judge, to whose

jurisdiction the parties consented. See doc. no. 2; see also

(c).

The defendants move for summary judgment on all counts,

alternatively arguing that they did not violate Lambert's rights

and that, even if they did, they are immune from suit. See doc.

no. 12. While the Estate concedes summary judgment on the state-law claims, it contends that factual disputes in the

record require that the federal claims be put to a jury. See

doc. no. 19. The court heard oral argument in October 2018.

The court grants the defendants' motion as to the Fourth

Amendment claim. Even assuming the officers' conduct

constituted excessive force, the Estate has not demonstrated

that the unlawfulness of that conduct was clearly established at

the time of the shooting. The officers are therefore entitled

to qualified immunity, and the court dismisses them from this

action.

Based on recent controlling authority, however, the court

concludes that summary judgment is not appropriate on the ADA

and Section 504 claim, at least on the state of the present

briefing. The court accordingly denies the defendants' motion

without prejudice as to that claim, but grants the Town 45 days

to file a renewed motion, as may be appropriate, taking into

account these recent legal developments.

I. LEGAL STANDARD

Summary judgment is appropriate 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(a). "If a nonmovant bears the ultimate

burden of proof on a given issue, she must present 'definite,

2 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)). The court must "draw all reasonable inferences from the

record in the light most favorable to the nonmoving party,

disregarding any 'conclusory allegations, improbable inferences,

or unsupported speculation.'" McGrath v. Tavares,

(1st Cir. 2014) (quoting Alicea v. Machete Music,

(1st Cir. 2014)).

II. BACKGROUND

On September 3, 2015, at around 12:15 p.m., Master

Patrolman Richard McKenzie of the Merrimack Police Department

was at the police station working on reports when he received a

radio from dispatch regarding a domestic incident at 8 Joppa

Road in Merrimack. Doc. no. 12-17 ¶ 4. Dispatch indicated that

the incident involved a man with a knife. Id. ¶ 3; doc. no. 12-

2 ¶ 6. McKenzie left the police station, entered a fully marked

police SUV, and radioed that he would respond to the scene.

Doc. no. 12-17 ¶ 4.

Lieutenant Matthew Tarleton and Master Patrolman William

Gudzinowicz also heard the dispatch. Doc. no. 12-2 ¶¶ 5, 6;

doc. no. 12-10 ¶ 5. Scheduled to co-teach a training session at

3 1:00 p.m., Tarleton and Gudzinowicz had just entered a fully

marked police cruiser in the police station parking lot when the

dispatch came through. Doc. no. 12-2 ¶¶ 5, 6; doc. no. 12-

10 ¶ 5. Tarleton, who was in the driver's seat, saw McKenzie

enter the SUV and leave for the scene. Doc. no. 12-2 ¶ 7. With

Gudzinowicz in the passenger's seat, Tarleton pulled the cruiser

behind the SUV and followed McKenzie to 8 Joppa Road. Id. ¶ 7;

doc. no. 12-10 ¶ 5.

McKenzie was on patrol duty when he received the call and

was wearing a full patrol uniform and a duty belt, on which he

carried a .40 caliber pistol, a radio, two magazines, and a

Taser. Doc. no. 12-17 ¶ 2. Tarleton and Gudzinowicz wore

training uniforms consisting of navy-blue collared shirts

displaying the Merrimack Police Department badge insignia and

their last names, with the department badge on the shoulders.

Doc. no. 12-2 ¶ 3; doc. no. 12-10 ¶ 3. Gudzinowicz also wore a

Merrimack Police Department baseball cap. Doc. no. 12-10 ¶ 3.

Because they were dressed for training and not patrol duty,

Tarleton and Gudzinowicz only carried .40 caliber pistols on

their service belts, and not Tasers or other tactical gear.

Doc. no. 12-2 ¶ 4; doc. no. 12-10 ¶ 4.

The officers reached the scene in a matter of minutes.

Doc. no. 12-17 ¶ 5; see also doc. no. 12-2 ¶ 8. McKenzie parked

the SUV on the right side of the street with 8 Joppa Road ahead

4 of him on the right. See doc. no. 12-6 at 3; doc. no. 12-13 at

3; doc. no. 12-21 at 3. Tarleton parked the cruiser behind

McKenzie's SUV. Doc. no. 12-2 ¶ 9; doc. no. 12-10 ¶ 6; doc. no.

12-17 ¶ 5. McKenzie exited his vehicle first and identified

Harrison Lambert standing about 15 yards from him. 1 Doc. no.

12-17 ¶ 6. Initially unable to see a knife, McKenzie shouted at

Lambert to show his hands. Id. ¶ 7. Lambert did not obey and

shouted expletives at the officers. Id.; doc. no. 12-2 ¶ 11.

Due to Lambert's behavior, and because dispatch had

reported an incident involving a knife, McKenzie unholstered his

service weapon. Doc. no. 12-17 ¶ 7. At around this time,

Tarleton exited the cruiser and saw Lambert standing at the end

of the driveway to 8 Joppa Road, approximately 30 yards from

him. Doc. no. 12-2 ¶ 10. Lambert started walking diagonally

away from the officers. Doc. no. 12-2 ¶ 11. He then turned

back, at which point McKenzie observed a knife in his hand.

Doc. no. 12-17 ¶ 8. McKenzie shouted at Lambert to "drop the

knife!" Id. ¶ 9. When McKenzie shouted, Tarleton also noticed

the knife. Doc. no. 12-2 ¶ 12. Tarleton, too, started yelling

at Lambert to stop and drop the knife. Id. ¶ 12.

1 All three officers had prior police-related contact with Lambert and were familiar with his appearance. Doc. no. 12-2 at 2 n. 1; doc. no. 12-10 at 2 n. 1.; doc. no. 12-17 at 2 n. 1.

5 Gudzinowicz was exiting the cruiser when he heard McKenzie

order Lambert to drop the knife. Doc. no. 12-10 ¶ 7.

Gudzinowicz walked in front of the cruiser and observed Lambert

standing at the end of the driveway with a knife in his right

hand. Id. ¶¶ 7, 8. Gudzinowicz also shouted at Lambert to drop

the knife. Id. ¶ 8. When Lambert did not comply, Tarleton and

Gudzinowicz unholstered their service weapons. Id. ¶¶ 8, 9;

doc. no. 12-2 ¶ 12. At that time, Gudzinowicz was in the middle

of the three officers, with Tarleton to his immediate left and

McKenzie ahead and to his right. Doc. no. 12-10 ¶ 8; doc. no.

12-17 ¶ 10. Lambert was approximately 30 yards from Tarleton

and 15 to 20 yards from Gudzinowicz. Doc. no. 12-2 ¶ 13; doc.

no. 12-10 ¶ 8.

After briefly pacing back and forth, Lambert turned and

started running at the officers in a zig-zagging fashion. Doc.

no. 12-2 ¶ 14; doc. no. 12-10 ¶¶ 9, 10; doc. no. 12-17 ¶ 11. As

he ran, Lambert held the knife at his side with the blade

pointing forward. Doc. no. 12-2 ¶ 14; doc. no. 12-10 ¶ 10. The

officers commanded Lambert to stop and drop the knife. Doc. no.

12-2 ¶ 14; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. Lambert

turned suddenly and ran directly at Tarleton. Doc. no. 12-2

¶ 15; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. The officers

continued to shout at Lambert to stop and drop the knife. Doc.

no. 12-2 ¶ 17; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. When

6 Lambert did not obey, Tarleton and Gudzinowicz opened fire.

Doc. no. 12-2 ¶ 19; doc. no. 12-10 ¶ 14; doc. no. 12-17 ¶ 13.

Tarleton fired three shots and Gudzinowicz fired five. Doc. no.

12-2 ¶ 19; doc. no. 12-10 ¶ 15. McKenzie did not fire at

Lambert out of concerns for collateral damage. Doc. no. 12-17

¶ 13. McKenzie recalls hearing Tarleton and Gudzinowicz fire

the shots in quick succession. Id. ¶ 13. A recording of a 911

call with Lambert's father, in which the shots can be heard in

the background, supports McKenzie's recollection. See doc. no.

12-28 at 4:35 (conventionally filed).

There is inconsistent evidence in the record as to how far

Lambert was from the officers when they opened fire.

Gudzinowicz says he pulled the trigger when Lambert was 12 to 15

feet from him and Tarleton. Doc. no. 12-2 ¶ 14. McKenzie

similarly states that Lambert was about 15 feet from Gudzinowicz

and Tarleton when he heard them open fire. Doc. no. 12-17 ¶ 13.

In contrast, Tarleton stated in his interview with New Hampshire

State Police on the day of the incident that he fired his weapon

when Lambert was 10 to 15 yards away. See doc. no. 12-6 at 8,

36. But in an affidavit filed in support of the defendants'

motion, Tarleton contends that this was a misstatement and that

Lambert was in fact 10 to 15 feet away when he discharged his

weapon. Doc. no. 12-2 ¶¶ 19, 19 n. 2.

7 Less than 30 seconds elapsed between the time the officers

exited their vehicles and the time the shots were fired. Doc.

no. 12-10 ¶ 15; doc. no. 12-17 ¶ 14. 2 Lambert was struck by five

bullets. Doc. no. 12-5 at 15. He ultimately died from his

injuries. Id.

III. DISCUSSION

The Estate's complaint consists of five claims, two federal

and three state. In a claim brought under

, the

Estate alleges that Tarleton and Gudzinowicz subjected Lambert

to excessive force in violation of the Fourth Amendment. The

Estate also alleges that the Town violated the ADA and Section

504 by failing to accommodate Lambert's known mental disability. 3

And against all three defendants, the Estate alleges state-law

claims of assault, battery, and wrongful death.

2 The Estate contends that this fact is disputed because an eyewitness, Laura Ploss, stated in an interview with the New Hampshire State Police that the two officers discharged their weapons six or seven seconds after they exited their cruisers. See doc. no. 19 at 2. The court addresses this contention below. See infra pp. 15-16.

3 The Estate refers to this claim as its "ADA" claim, despite being brought under both the ADA and Section 504. See doc. no. 19 at 16 n.4. The court does likewise in this order. See Parker v. Universidad de P.R.,

, 4 n.2 (1st Cir. 2000) (noting that Title II of the ADA "essentially extends the reach of [Section] 504 to state and local governmental entities that do not receive federal financial assistance").

8 The defendants move for summary judgment on all claims. At

the hearing, the Estate conceded summary judgment on the state-

law claims. The court accordingly grants the defendants' motion

as to those claims. The Estate opposes summary judgment on the

federal claims. The court addresses those claims in order

A. Excessive force

The defendants contend that summary judgment is appropriate

on the excessive-force claim both because the officers' use of

force was justified under the circumstances and because the

officers are entitled to qualified immunity. The court need not

address the defendants' first argument because even assuming the

officers' use of force was excessive, qualified immunity shields

both officers from liability. The court limits its analysis

accordingly.

Police officers "are entitled to qualified immunity under

§ 1983 unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct

was 'clearly established at the time.'" Dist. of Columbia v.

Wesby,

(2018) (citation omitted). "Although

this description implies a set sequence, these prongs need not

be taken in order." Conlogue v. Hamilton,

(1st Cir. 2018) (internal quotation and citation omitted). "A

court is well within its authority to alter the choreography in

the interests of efficiency[,] beginning — and perhaps ending —

9 with the second prong."

(same omissions). In this case,

the second prong is dispositive.

"Clearly established means that, at the time of the

officer's conduct, the law was sufficiently clear that every

reasonable official would understand that what he is doing is

unlawful." Wesby,

(citations and internal

quotation marks omitted). Put differently, "existing law must

have placed the constitutionality of the officer's conduct

beyond debate."

(citation and internal quotation marks

omitted). "This demanding standard protects all by the plainly

incompetent or those who knowingly violate the law."

(citation and internal quotation marks omitted).

Where, as here, the movant raises a qualified immunity

defense, the nonmoving party has the burden of demonstrating

that the law was clearly established during the relevant time

period. See Mitchell v. Miller,

(1st. Cir.

2015). The First Circuit has held that this inquiry has two

facets. Conlogue,

. "First, the plaintiff must

identify either controlling authority or a consensus of

persuasive authority sufficient to put an officer on notice that

his conduct fell short of the constitutional norm."

(citation omitted). A plaintiff must also "show that an

objectively reasonable officer would have known that his conduct

violated the law."

(citation omitted). "Because many law

10 enforcement encounters arise from confusing, high-stakes

circumstances, this second inquiry provides some breathing room

for a police officer even if he has made a mistake (albeit a

reasonable one) about the lawfulness of his conduct."

(citation omitted). In other words, "[t]he precedent must be

clear enough that every reasonable official would interpret it

to establish the particular rule the plaintiff seeks to apply."

Wesby,

(citation omitted).

"Taken together, these steps normally require that, to

defeat a police officer's qualified immunity defense, a

plaintiff must identify a case where an officer acting under

similar circumstances was held to have violated the Fourth

Amendment." Gray v. Cummings,

(1st Cir. 2019)

(internal quotation marks omitted) (quoting City of Escondido v.

Emmons,

(2019)). "Although such a case need

not arise on identical facts, it must be sufficiently analogous

to make pellucid to an objectively reasonable officer the

unlawfulness of his actions."

(citations omitted). The

Supreme Court has stressed that courts "must not define clearly

established rights at a high level of generality, since doing so

avoids the crucial question whether the official acted

reasonably in the particular circumstances that he or she

faced." Wesby,

(citations and internal

quotation marks omitted). While "there can be the rare 'obvious

11 case,' where the unlawfulness of the officer's conduct is

sufficiently clear even though existing precedent does not

address similar circumstances . . . , a body of relevant case

law is usually necessary to clearly establish the answer."

(citations, internal quotations, and brackets omitted).

Construed generously, the Estate's objection contains

citations to six decisions bearing on the clearly established

prong of qualified immunity. None would have put Tarleton or

Gudzinowicz on notice that his conduct violated the Fourth

Amendment. Three of the decisions do not involve excessive

force at all, and therefore have little relevance to the

specific facts in this case. 4 Another, a landmark decision in

which the Supreme Court concluded that excessive-force claims

against law enforcement are properly analyzed under the Fourth

Amendment's "objective reasonableness" standard, is readily

distinguishable from this case on its facts. See Graham v.

4 These cases are Albright v. Oliver,

(1994), which addressed whether a substantive right exists under the Fourteenth Amendment's Due Process Clause to be free from criminal prosecution except upon probable cause, Maldonado v. Fontanes,

(1st Cir. 2009), which assessed whether the seizure and destruction of pets owned by residents of three public housing complexes violated those residents' Fourth and Fourteenth Amendment rights, and Vazquez-Valentin v. Santiago-Diaz,

(1st Cir. 2006), which considered, on remand from the Supreme Court, whether the district court erred in excluding certain evidence at trial in a case involving alleged political discrimination by the plaintiff's employers.

12 Connor,

(1989). So, too, is the Supreme

Court's decision in Brower v. County of Inyo, which considered

whether police officers unreasonably seized a fleeing suspect

who died when he collided with a roadblock erected to stop his

flight. See

(1989).

The sixth case, Kisela v. Hughes,

(2018)

(per curiam), warrants a bit more discussion. In that case,

several police officers responded to a 911 report of a woman

hacking a tree with a kitchen knife.

. A few

minutes after the officers arrived at the scene, a woman

matching the description of the woman seen hacking the tree

emerged from a house carrying a large knife.

That woman

approached another woman standing near a car in the driveway,

stopping no more than six feet from her.

The officers drew

their guns and at least twice told the woman carrying the knife

to drop the weapon.

The woman standing near the car told

the officers and the woman carrying the knife to "take it easy."

The woman carrying the knife appeared calm, but did not

acknowledge the officers or comply with their commands to drop

the knife.

At that point one of the officers shot the

woman holding the knife four times.

The woman survived and

filed suit against the officer who shot her, alleging excessive

force.

In a per curiam opinion, the Supreme Court declined

to reach the constitutionality of the officer's conduct, holding

13 instead that he was entitled to qualified immunity because it

was not clearly established that his conduct violated the Fourth

Amendment. See

.

Short of supporting the Estate's contention that the

officers violated Lambert's clearly established right in this

case, Kisela stands as an indictment of that argument. Whereas

the plaintiff in Kisela was described as calm, there is no

dispute in the present record that Lambert shouted expletives at

the officers when the ordered him to drop the knife. And unlike

in Kisela, where the plaintiff was merely standing near a third

party when she was shot, the Estate does not dispute that in

this case Lambert was running at the officers when they opened

fire. The Estate's attempts to distinguish Kisela based on the

size of the knife and Lambert's proximity to the officers when

they shot him are unavailing, as the Estate points to no

caselaw, controlling or otherwise, suggesting that those

differences are material to the court's analysis. Absent a case

on point, the court fails to see how either distinction renders

conduct that was not clearly unconstitutional in Kisela clearly

unconstitutional in this case.

In addition to the above cases, the Estate also raises

several factual arguments as to why Tarleton and Gudzinowicz are

not entitled to qualified immunity. While those arguments

largely go to the first prong of the qualified-immunity analysis

14 (and are therefore immaterial to the outcome of this case), the

court nonetheless addresses several of them here.

First, the Estate contends that the amount of time that

passed from when the officers exited their vehicles to when they

opened fire is disputed. To this end, the Estate asserts that

Laura Ploss, a third-party eyewitness, stated during her

interview with the New Hampshire State Police that Tarleton and

Gudzinowicz discharged their weapons within six or seven seconds

of exiting the cruiser, in contrast to the "less than 30

seconds" the officers estimated in their affidavits. But that

is not exactly what Laura Ploss said: she stated that she saw

the officers "get out of their car and put their hand on their

weapon[s] right away . . . and then they drew their weapons

right away and like six or seven seconds later we heard 'bang,

bang, bang, bang, bang.'" Laura Ploss Interview at 2:44-2:59

(filed conventionally). In other words, Ploss stated that the

officers opened fire six or seven seconds after they drew their

weapons. It is therefore not clear that Ploss's statement is

inconsistent with the officers' estimates in their affidavits.

Yet, even if it were, the court fails to see how this

inconsistency is material. Regardless of the exact time the

officers opened fire, the Estate does not meaningfully dispute

that Lambert was running at the officers with a knife when they

15 did so. It is by no means "beyond debate" that using deadly

force under such circumstances violates the Fourth Amendment.

The Estate also relies heavily on the dispute in the record

as to how far Lambert was from the officers when they discharged

their weapons. This argument is likewise misplaced. The Estate

has not cited, and the court is unaware of, any caselaw

suggesting that it necessarily violates the Fourth Amendment for

an officer to shoot at a person running at that officer or one

of his colleagues with a knife when that person is 10 to 15

yards away, as opposed to 10 to 15 feet. Thus, while this

discrepancy might arguably have some bearing on whether the

officers' use of force was objectively reasonable, it does not

make their conduct in this case clearly unlawful under the

second prong of qualified immunity.

The Estate next argues that it was clearly excessive for

the officers to continue firing at Lambert after he was

initially shot. This argument, too, is unavailing. The record

evidence, including a 911 audio recording in which the shooting

can be heard in the background, supports the conclusion that the

officers fired shots at Lambert in quick succession. The Estate

acknowledged at the hearing that it was unable to identify any

case in which a court held that an officer violated the Fourth

Amendment by firing multiple shots in quick succession at an

individual running at that officer or his colleague with a

16 knife. 5 The Estate has therefore failed to meet its burden of

demonstrating that the manner in which the officers discharged

their weapons in this case violated clearly established law.

In its objection, the Estate contends that there is a

factual dispute whether the officers ever gave Lambert a verbal

warning before shooting him. At the hearing, the Estate revised

this argument, conceding for the purposes of summary judgment

that the officers did verbally warn Lambert, but challenging

whether that warning was adequate. While the First Circuit has

held that an officer ordinarily must give a suspect some sort of

warning before using deadly force against him, see McKenney v.

Mangino,

(1st Cir. 2017) (citing Tennessee v.

Garner,

(1985)), the key inquiry is whether

the warning was "adequate in light of the circumstances then

obtaining." Conlogue,

(citing Young v. City of

Providence ex rel. Napolitano,

(1st Cir. 2005)).

There is no dispute in the record here that Tarleton and

Gudzinowicz repeatedly commanded Lambert to stop and drop the

knife before they opened fire. The Estate points to no

5 Given that the Supreme Court has cautioned courts analyzing excessive-force claims to 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,

, the court is skeptical that any such case exists.

17 authority suggesting that, despite these commands, the officers

failed to adequately warn Lambert before they shot him. This

argument is therefore also insufficient to meet the Estate's

burden under the second qualified-immunity prong.

The Estate also spends considerable time focusing on

Lambert's mental disability. And not without reason, as "the

level of force that is constitutionally permissible in dealing

with a mentally ill person differs both in degree and in kind

from the kind of force that would be justified against a person

who has committed a crime or who poses a threat to the

community." Gray,

(citation and internal

quotation marks omitted). But once again, this is an argument

that goes to whether the officers' conduct was objectively

reasonable, not whether that conduct violated a clearly

established right. The Estate cites no authority, binding or

persuasive, supporting the proposition that it is clearly

unlawful for a police officer to shoot an individual running at

him or another officer with a knife simply because that

individual happens to be mentally disabled. Absent such

authority, the Estate cannot overcome the clearly established

prong by generally invoking Lambert's mental disability.

Finally, the Estate asks the court to draw an inference

that Tarleton, Gudzinowicz, and McKenzie coordinated their

stories. The court declines to do so. To defeat summary

18 judgment, a nonmovant must, "with respect to each issue on which

he would he would bear the burden of proof at trial, demonstrate

that a trier of fact could reasonably resolve that issue in his

favor." Flovac, Inc. v. Airvac, Inv.,

(1st

Cir. 2016) (citation omitted). "This demonstration must be

accomplished by reference to materials of evidentiary quality,

and that evidence must be more than 'merely colorable.'"

(citations omitted). The court will not credit "conclusory

allegations, improbable inferences, or unsupported speculation."

See Fanning v. Fed. Trade Comm'n,

(1st Cir.

2016) (citation and quotation marks omitted) cert. denied,

(2017). Here, the Estate points to no evidence that

would transform its suggestion that the officers coordinated

their stories from unsupported speculation to a reasonable

inference the court must draw in the Estate's favor. The

Estate's suggestion is therefore not one the court may accept at

the summary-judgment stage.

To its credit, the Estate acknowledged at the hearing that

it had not identified any case in which conduct similar the

conduct at issue here was found to violate the Fourth Amendment.

But the Estate contended that it did not need to, as this was an

"obvious case" where the unlawfulness of Tarleton and

Gudzinowicz's actions was clear. The court does not agree.

Without belaboring the point, it is by no means obviously

19 unlawful for a police officer to use deadly force against an

individual who is running at that officer or his fellow officer

bearing a knife. The Estate's counterarguments do not alter

this conclusion; if anything, they demonstrate that determining

whether the officers violated Lambert's rights in this case is

necessarily a fact-intensive inquiry.

In sum, the Estate has not demonstrated that either

Tarleton or Gudzinowicz violated Lambert's clearly established

rights. The officers are therefore entitled to qualified

immunity on the excessive-force claim. The court grants the

defendants' motion for summary judgment as to that claim and

dismisses the officers from this action.

B. ADA

This leaves only the Estate's ADA claim against the Town.

The Town contends that it is entitled to summary judgment on

that claim both because the ADA does not apply to police

investigations and arrests and because, even if it did, exigent

circumstances justified the officers' conduct in this case. At

the time the defendants filed their motion, the First Circuit

had not addressed whether the ADA protections applied to police

conduct during investigations and arrests. The defendants

accordingly relied on persuasive authority, including decisions

from other Courts of Appeals, to support their arguments. For

its part, the Estate relied primarily on Justice Ginsburg's

20 concurring opinion in Tennessee v. Lane,

(2004), in arguing that the ADA extended to Tarleton and

Gudzinowicz's actions.

Just last month, however, the First Circuit considered for

the first time the interplay between the ADA and "ad hoc police

encounters with members of the public during investigations and

arrests." See Gray,

. In its opinion, the court

discussed the differing approaches other courts have employed

when determining whether the ADA applied to police conduct. See

. Emphasizing that "courts should not rush to

decide unsettled legal issues that can easily be avoided," the

panel assumed without finding that the ADA applies to ad hoc

police encounters, that a public entity can be held vicariously

liable under the ADA for its employee's actions, and that proof

of a defendant's deliberate indifference is sufficient to

support a claim for damages under the ADA. See

.

The court nevertheless concluded, in a fact-bound analysis, that

the defendants were entitled to summary judgment because the

plaintiff had not made out "a genuine issue of material fact as

to [the officer's] deliberate indifference to the risk of an ADA

violation."

. In reaching this conclusion, the First

Circuit declined to adopt, at least at present, much of the

caselaw the defendants rely on in support of their motion. See

.

21 In the wake of Gray, the court cannot determine whether the

Town is entitled to summary judgment on the ADA claim based on

the current state of the briefing. Before taking a position on

unsettled legal issues the First Circuit expressly declined to

resolve as recently as last month, the court must be convinced

that it has no choice but to do so. Yet without the benefit of

the First Circuit's decision in Gray, neither party has

addressed whether this case can be resolved on its facts. The

court accordingly denies the defendants' motion without

prejudice as to the ADA claim. The Town is granted 45 days to

file a renewed motion for summary judgment, as may be

appropriate, addressing the First Circuit's decision in Gray.

If the Town does so, the Estate shall have 30 days to respond,

as provided by Local Rule 7.1(b).

IV. CONCLUSION

For the reasons stated above, the court grants the

defendants' motion for summary judgment on the excessive-force

claim against Tarleton and Gudzinowicz and on the state-law

claims against all three defendants. Tarleton and Gudzinowicz

are dismissed as defendants. The court denies the defendants'

motion without prejudice as to the ADA claim against the Town.

The Town is granted 45 days to file a renewed motion for summary

judgment on that claim, as may be appropriate, taking into

22 consideration the First Circuit's decision in Gray. Should the

Town file a renewed motion, the Estate shall have 30 days to

respond, as permitted by Local Rule 7.1(b). The August 6, 2018

Endorsed Order staying discovery and trial shall remain in

effect pending further order of the court.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

March 25, 2019

cc: Lawrence A. Vogelman, Esq. Charles P. Bauer, Esq. Weston Robert Sager, Esq.

23