UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donna Esty, individually and as Administratrix of the Estate of Hagen Esty-Lennon

v. Civil No. 17-cv-59-AJ Opinion No.

Town of Haverhill, et al.

MEMORANDUM ORDER

Donna Esty brings this action individually and on behalf of

the estate of her son, Hagen Esty-Lennon, who was shot and

killed by two Haverhill police officers in July 2015. She

alleges violations of federal and state law by the Town of

Haverhill and the two officers. The defendants jointly move for

summary judgment (doc. no. 18), and Esty objects (doc. no. 23).

There are also four non-dispositive motions pending before the

court related to the timeliness of Esty’s expert disclosure and

whether the court may properly consider materials attached to or

referenced in Esty’s objection to the motion for summary

judgment. See doc. nos. 20, 21, 28, and 33.

As discussed below, the court is not persuaded by Esty’s

arguments with respect to the non-dispositive motions. The court ultimately need not resolve those motions, however,

because even if the challenged materials were properly before

the court, the defendants would still be entitled to summary

judgment on Esty’s federal claims. The court accordingly grants

the defendants’ motion as to those claims. In an abundance of

caution, the court declines supplemental jurisdiction over

Esty’s state-law claims and remands them to state court. The

court denies all other motions as moot.

I. PROCEDURAL HISTORY

The court starts by summarizing the travel of this case, as

it has some bearing on both the non-dispositive motions and the

motion for summary judgment. Esty initially brought this action

in state court, alleging that the Haverhill Police Department,

the Grafton County Sheriff’s Department, the two officers

involved in the shooting, and a third Haverhill officer violated

state and federal law. See doc. no. 1-2. The defendants

removed the action to this court based on the federal claims

(doc. no. 1), and the parties consented to the jurisdiction of

the undersigned magistrate judge. 1

1 As best the court can tell, neither side filed a consent form as directed by the Clerk of Court. See doc. no. 4 (notice of assignment to magistrate judge); Mar. 7, 2017 Docket Entry (instructing the removing defendants to file a consent form on 2 Once removed, Esty moved to non-suit the Grafton County

Sheriff’s Department (doc. no. 3) and to substitute the Town of

Haverhill for the Haverhill Police Department (doc. no. 11).

She then amended her complaint, dropping the third Haverhill

officer as a defendant. See doc. no. 14. In its current form,

Esty’s action comprises nine counts — three federal and six

state — brought against some combination of the Town and the two

officers involved in the shooting. See

The court held a preliminary pretrial conference on March

27, 2017. See March 27, 2017 Minute Entry. Attorney James

Laura represented Esty at that conference. See

Following

the conference, the court issued a scheduling order. See doc.

no. 12. Consistent with the discussion at the conference, the

court set a July 5, 2017 deadline for Esty to disclose experts

and provide expert reports to the defendants. See id. at 1.

This deadline was four days after the deadline proposed by the

parties in their joint discovery plan. See doc. no. 10 at 4

or before the deadline for filing a discovery plan). Consent may nevertheless be inferred in this case, as the parties did not refuse consent despite being informed that they could do so, see doc. no. 4 at 1, and both sides voluntarily appeared and litigated this matter before the undersigned magistrate judge, see Roell v. Withrow,

(2003) (consent can be inferred when “the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared . . . before the Magistrate Judge” (emphasis added)). 3 (proposing July 1, 2017). The court set an October 2, 2017

deadline for the defendants to make corresponding disclosures.

See doc. no. 12 at 1. The court further set a November 15, 2017

summary-judgment deadline and a January 16, 2018 discovery

deadline, consistent with the parties’ proposals in their

discovery plan. See id. at 1; doc. no. 10 at 3, 5.

On October 6, 2017, the defendants jointly moved for

summary judgment. Doc. no. 18. A little more than two weeks

later, Esty moved to extend the deadlines for the parties to

exchange expert reports. Doc. no. 20. Esty indicated in her

motion that she had forwarded the defendants a copy of her

expert reports on that same date. Id. ¶ 6. The defendants

objected to Esty’s motion to extend (doc. no. 22) and jointly

moved to exclude Esty’s experts (doc. no. 21). Esty did not

object to the motion to exclude.

On November 6, 2017, Esty filed an objection to the motion

for summary judgment. See doc. no. 23. She attached eight

exhibits to her objection. See doc. nos. 23-2 through 23-9.

The defendants jointly moved to strike several of those

exhibits, as well as references in Esty’s objection to evidence

not before the court, contending that they were not admissible,

as required by Rule 56, or were otherwise not relevant. See

doc. no. 28. Esty objected to the motion to strike. Doc. no. 4 30.

On November 9, 2017, the defendants filed a statement on

the status of discovery, as required by the scheduling order.

See doc. no. 26. In that statement, the defendants represented

that they did not believe a discovery-status conference was

necessary. Id. ¶ 9. Esty assented to the defendants’ statement

later the same day without raising any concerns about the status

of discovery or of the case in general. See doc. no. 27.

The court heard oral argument on all of the pending motions

on December 6 and 7, 2017. Attorney Peter McGrath represented

Esty at that hearing. Following the hearing, Esty sought leave

to addend her objection to the motion for summary judgment to

attach an affidavit in support of one of her expert reports.

See doc. no. 33. The defendants objected to that motion. See

doc. no. 34.

II. NON-DISPOSITIVE MOTIONS

The court turns first to the non-dispositive motions.

These motions present two distinct issues: (1) whether Esty’s

late disclosure of her experts was justified or excusable; and

(2) whether Esty has properly supported the materials attached

to or referenced in her objection to the motion for summary

judgment. The court addresses each issue in turn. 5 A. Expert Disclosures

The first two non-dispositive motions — Esty’s motion to

extend and the defendants’ motion to exclude — both address

Esty’s attempt to disclose experts three-and-a-half months after

her deadline to do so expired. Though different standards apply

to each motion, with the motion to extend requiring a showing of

“good cause” under Rule 16(b)(4) and the motion to exclude

analyzed under Rule 37(c)(1)’s “substantially justified or

harmless” standard, Esty bears the burden under either. See

Somascan, Inc. v. Philips Med. Sys. Nederland, B.V.,

(1st Cir. 2013) (Rule 16(b)(4)); Wilson v. Bradlees of

New England, Inc.,

(1st Cir. 2001) (Rule

37(c)(1)).

Esty raises several arguments in support of her late

disclosure. First, she suggests that she could not disclose her

experts by July 5, 2017, because certain written discovery was

outstanding at that time and additional non-party depositions

still needed to be scheduled. Next, she argues that an

extension would not prejudice either side, as the defendants

also failed to disclose an expert and her proposal extends their

deadline as well. Third, Esty contends that the defendants

should have been aware that she would seek to disclose an expert

because she mentioned experts in her demand letter. Next, Esty 6 contended at the hearing that she needed an expert to prove her

case. 2 Esty’s counsel also acknowledged for the first time at

the hearing that he missed the July 5, 2017 deadline due to

“confusion” at his office, which he attributed both to his

secretary and Attorney Laura, and suggested that if the court

were inclined to sanction him, awarding the defendants

attorney’s fees would be more appropriate than precluding the

experts outright.

In response, the defendants contend that Esty has provided

no justification for her failure to timely disclose her experts.

The defendants note that they did not receive discovery requests

from Esty until August 2017, which they argue undermines any

claim that her failure to disclose experts by the July 5, 2017

deadline was due to outstanding discovery. They next argue that

the demand letter does not constitute a proper expert disclosure

under Rule 26, and therefore does not excuse the late

disclosure. The defendants also reject Esty’s contention that

they will not be prejudiced by her late disclosure, noting that

they decided against disclosing their own expert and elected to

2 Esty’s counsel offered conflicting arguments on this point, initially refusing to commit to whether the court must consider the expert report for the purposes of summary judgment, but later suggesting that the case would be “caput” without an expert. 7 file their motion for summary judgment relying on the fact Esty

had not disclosed an expert. Finally, the defendants dispute

any suggestion that excluding Esty’s expert would result in the

dismissal of her action, contending that her expert report is

irrelevant to the court’s summary judgment analysis.

The court ultimately need not resolve whether Esty has met

her burden under Rule 16(b)(4) or 37(c)(1), as the defendants

would be entitled to summary judgment on the federal claims even

if Esty had properly disclosed her experts. The court

nevertheless emphasizes that it does not find Esty’s arguments

to be particularly persuasive, especially given that she

assented to the defendants’ November 9, 2017 statement on the

status of discovery without raising any of the issues that she

now argues caused the late expert disclosure. See doc. nos. 26,

27.

B. Exhibits

The other two non-dispositive motions relate to materials

attached to or referenced in Esty’s objection to the motion for

summary judgment. The defendants move to strike several of

those exhibits and references, arguing that they are not

admissible, as required by Rule 56(c), or are otherwise

irrelevant to the issues raised in the motion for summary

judgment. Esty counters that the defendants’ motion is 8 premature, as discovery had not closed at the time it was filed.

To this end, Esty suggests, but does not request, that the court

defer ruling on the motion under Rule 56(e) to allow her

additional time to present her exhibits in admissible form. 3

Esty further suggests in her objection, and reiterated at the

hearing, that she does not need to submit affidavits in order to

comply with Rule 56. Alternatively, Esty takes the position

that the court still must deny the defendants’ motion for

summary judgment even if it granted their motion to strike.

It is well-established that “evidence that is inadmissible

at trial, such as inadmissible hearsay, may not be considered on

summary judgment.” Noviello v. City of Boston,

(1st Cir. 2005) (brackets and citations omitted). Rule 56(c)

accordingly allows a party to “object that the material cited to

support or dispute a fact cannot be presented in a form that

would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

Furthermore, when an affidavit or declaration is used to support

a fact, it “must be made on personal knowledge, set out facts

that would be admissible in evidence, and show that the affiant

or declarant is competent to testify on the matters stated.”

3 Esty’s attorney repeatedly raised similar suggestions at the hearing, but when pressed by the court, steadfastly refused to take a position on whether he was seeking affirmative relief under Rule 56(d) or 56(e). 9 Id. 56(c)(4).

The defendants’ motion to strike is well-taken. Many of

the documents attached to Esty’s objection or otherwise

referenced therein do not appear to be admissible in evidence.

Moreover, Esty supports those documents solely through her

counsel’s affidavit, which does not (and very likely could not)

demonstrate personal knowledge of the facts in question, let

alone that counsel is competent to testify to those facts at

trial. The court once again does not need to resolve the

defendants’ motion, however, as the defendants are entitled to

summary judgment on the federal claims even if the court

considers the materials attached to or referenced Esty’s motion

for summary judgment. For this reason, the court likewise need

not reach the merits of Esty’s motion for leave to file an

addendum.

III. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

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, 10 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)).

B. Background

The material facts appear to be largely undisputed. 4 On

July 6, 2015, Haverhill Police Officers Ryan Jarvis and Greg

Collins were on duty at the Haverhill Police Department station

when they were informed over the radio of a motor vehicle

accident in Bath, New Hampshire. Doc. no. 18-2 ¶ 1; doc. no.

18-9 ¶ 1. The officers learned that the scene was unsecured and

4 The parties do dispute the scope of material facts, with the defendants contending that the court should focus primarily on the shooting itself and Esty arguing that there are additional disputed facts leading up to the shooting that the court must consider. As discussed infra pp. 23-24, the court largely agrees with the defendants that, regardless of whether they are disputed, these additional facts are not material to Esty’s federal claims. The court limits the present narrative accordingly. 11 that an individual had been involved in the accident and might

be armed with a knife. Doc. no. 18-2 ¶ 1; doc. no. 18-9 ¶ 1.

The officers left the station in separate marked cruisers. Doc.

no. 18-2 ¶ 2; doc. no. 18-9 ¶ 2. Each officer activated his

emergency lights and siren. Doc. no. 18-9 ¶ 2; doc. no. 18-2 ¶

2. Officer Collins also activated his body camera while en

route. Doc. no. 18-9 ¶ 2; see also doc. no. 18-10

(conventionally filed). Officer Jarvis learned over his cruiser

radio that there was an individual walking away from the

accident with a potential stab wound in his chest. Doc. no. 18-

2 ¶ 2.

Officer Collins arrived on the scene just ahead of Officer

Jarvis. Doc. no. 18-9 ¶ 3; doc. no. 18-2 ¶ 3. Officer Jarvis

activated his body camera as he exited his cruiser. Doc. no.

18-2 ¶ 4; doc. no. 18-3 (conventionally filed). The defendants

submitted footage from both officers’ body cameras as

attachments to their motion for summary judgment. See doc. nos.

18-3; 18-10. While the parties dispute how these videos should

be interpreted, they agree that the videos accurately depict the

events immediately following the officers’ arrival at the scene.

The following facts are accordingly drawn from the video

recordings unless otherwise noted. Cf. Scott v. Harris,

(2007) (noting that when a party’s version of 12 events is “blatantly contradicted” by a videotape, the court

“should not rel[y] on such visible fiction,” but rather “view

the facts in the light depicted by the videotape”).

When he arrived at the scene, Officer Collins pulled into

the right breakdown lane and exited his vehicle. As he did so,

a dark SUV approached in the breakdown lane on the other side of

the road, and the driver — a Town of Bath firefighter who had

responded to the accident (doc. no. 18-4 at 11; doc. no. 18-12

at 6) — raised his hand out the window and waved in Officer

Collins’s general direction. Officer Jarvis parked behind

Officer Collins and exited his cruiser. As Officer Jarvis

walked toward Officer Collins’s cruiser, the dark SUV pulled

into the center of the road, and the firefighter exited the SUV

looking in Officer Jarvis’s direction. Officer Jarvis briefly

raised his hand in an apparent gesture toward the firefighter.

Officer Collins approached a man, later identified as Esty-

Lennon, standing in the right breakdown lane. Esty-Lennon had a

dark stain on his shirt and was carrying a short knife in his

right hand. Officer Collins gestured at Esty-Lennon and asked

him to approach. Esty-Lennon walked toward Officer Collins, who

asked to see his hands. Esty-Lennon continued walking toward

Officer Collins. Officer Collins pointed at Esty-Lennon and

directed him to keep his hands out of his pockets. Esty-Lennon 13 did not respond and continued to walk deliberately in Officer

Collins’s direction.

Officer Collins stopped and told Esty-Lennon to “put that

down.” Esty kept approaching, and, approximately two seconds

later, Officer Collins raised his firearm and shouted, “Put the

knife down and stop – stop where you are!” Officer Jarvis, who

was several paces behind Officer Collins, also raised his

firearm and started to approach. Once he was level with Officer

Collins, Officer Jarvis came to a stop, but continued to point

his firearm at Esty-Lennon.

Esty-Lennon walked deliberately toward the officers with

the knife in his hand. Both officers repeatedly ordered Esty-

Lennon to put the knife down. Officer Jarvis made a partially

inaudible comment to Officer Collins about his Taser, and

Officer Collins lowered his right hand. Esty-Lennon stopped

approaching the officers and turned to look over his shoulder.

Both officers continued to order Esty-Lennon to drop the knife,

with Officer Jarvis at one point exclaiming, “Drop the knife or

I will shoot you!”

Esty-Lennon backpedaled, then turned and slowly ran away

from the officers. Officer Collins lowered his firearm, said

“cover,” and started to pursue Esty-Lennon, holding his Taser in

his right hand. Officer Jarvis lowered his firearm and followed 14 Officer Collins. Esty-Lennon looked back over his shoulder,

increased speed for a few seconds, looked back over his shoulder

again, and abruptly turned toward the officers with the knife

still in his hand. As he did, Officer Jarvis stated “Greg,

leave it!” and Officer Collins dropped his Taser.

Both officers started to backpedal as they raised their

firearms. Esty-Lennon ran several paces toward the officers,

first in Officer Collins’s direction, then toward Officer

Jarvis, while still bearing the knife. When he was only several

feet away from the officers, Esty-Lennon staggered. At that

same instant, both officers opened fire, shooting Esty-Lennon

several times. Esty-Lennon ultimately died from his injuries.

C. Discussion

As noted, Esty’s amended complaint consists of three

federal claims and six state claims. Esty brings federal claims

against Officers Jarvis and Collins for “violation of civil

rights” (Count 3) and unreasonable seizure (Count 5), and

against the Town for unconstitutional municipal policies or

customs (Count 6). 5 She brings state-law claims against the Town

5 Though Esty also brings Counts 3 and 5 against the Town, it is black-letter law that “[a] municipality cannot be held liable solely because it employs a tortfeasor,” and that a plaintiff must instead show “that the violation occurred as a result of the municipality’s ‘policy or custom.” Freeman v. Town of Hudson,

(1st Cir. 2013) (citations and 15 and both officers for wrongful death (Count 1), civil conspiracy

(Count 2), and infliction of emotional distress (Count 4).

Against the Town, Esty also brings state-law claims for

negligent supervision and training (Count 7) and respondeat

superior (Count 9). Finally, she brings a state-law battery

claim against just the officers (Count 8).

The defendants move for summary judgment on all claims.

With limited exception, Esty objects. The court turns first to

the federal claims before addressing the state-law claims.

1. Violations of Civil Rights (Count 3)

The court first considers Count 3, Esty’s claim for

“violation of civil rights.” In this count, Esty contends,

without much elaboration, that the defendants “deprived [Esty-

Lennon] of his right to equal protection” and “impeded his right

to due process of justice . . . .” Doc. no. 14 ¶ 50. In their

motion for summary judgment, the defendants construe Count 3 to

allege an equal protection claim and argue that there is no

genuine dispute of fact sufficient to sustain such a claim.

Esty does not mention this claim in her objection and agreed at

emphasis omitted). Seemingly aware of this requirement, Esty brings Count 6 against the Town, alleging an unconstitutional policy or custom. See doc. no. 14 at 12-13. The court accordingly views the Town’s inclusion in Counts 3 and 5 as superfluous, and analyzes those counts solely as brought against the officers. 16 the hearing to withdraw Count 3 to the extent it was based on

equal protection. But in doing so, Esty suggested that she also

intended to allege a due-process claim as part of Count 3. Esty

did not develop this suggestion at the hearing or otherwise

attempt to refute the defendants’ construction of Count 3.

As Esty withdrew her equal protection claim, the court need

only address Count 3 to the extent it is based on due process.

The court is far from convinced that Count 3 states a viable

due-process claim. But even assuming it does, Esty’s counsel’s

stray reference to due process at the hearing is not the sort of

developed legal argument the court need consider at this

juncture. Higgins v. New Balance Athletic Shoe, Inc.,

(1st Cir. 1999) (“The district court is free to

disregard arguments that are not adequately developed . . . .”

(citation omitted)). Even more importantly, Esty has not

pointed to any evidence in the record that might support

recovery under a due process theory. See Foley v. Wells Fargo

Bank, N.A.,

(1st Cir. 2014) (citation omitted)

(“[I]n the summary judgment context . . . [judges] are not pigs

hunting for truffles in the record.” (internal brackets and

quotation marks omitted)). The defendants are therefore

entitled to summary judgment on Count 3 to the extent it is

based on due process. 17 2. Unreasonable Seizure (Count 5)

In Count 5, Esty contends that Officer Collins and Officer

Jarvis used excessive force in violation of the Fourth Amendment

when they shot and killed Esty-Lennon. The defendants move for

summary judgment, arguing that the officers’ use of force was

justified under the circumstances. Alternatively, the

defendants argue that the officers are entitled to qualified

immunity. Esty counters that her excessive-force claim should

be put to a jury.

a. Fourth Amendment

“A claim that a police officer used excessive force is

governed by the Fourth Amendment’s ‘reasonableness’ standard.”

Mitchell v. Miller,

(1st Cir. 2015) (internal

quotation marks omitted) (quoting Plumhoff v. Rickard,

(2014)). “The test for whether the use of deadly

force is excessive is whether an objectively reasonable officer

would believe that the suspect posed a ‘threat of serious

physical harm either to the officer or others.’” Young v. City

of Providence ex rel. Napolitano,

(1st Cir. 2005)

(quoting Tennessee v. Garner,

(1985)). To

determine whether an officer’s actions were objectively

reasonable, the court must “balance the nature and quality of

the intrusion of the individual’s Fourth Amendment interests 18 against the countervailing governmental interests at stake.”

Mitchell,

(quotation marks omitted) (quoting

Plumhoff,

). This is an objective analysis,

requiring the court to “analyze the totality of the

circumstances, taking the perspective of a reasonable officer on

the scene, rather than the 20/20 vision of hindsight.”

(quotation marks and ellipsis omitted) (quoting Plumhoff,

). Courts must 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 v. Connor,

(1989).

“Judgments about reasonableness are usually made by juries

in arguable cases, even if there is no dispute about what

happened . . . .” Roy v. Inhabitants of City of Lewiston,

(1st Cir. 1994). But “the Supreme Court’s

standard of reasonableness is comparatively generous to the

police in cases where potential danger, emergency conditions or

other exigent circumstances are present.” Berube v. Conley,

(1st Cir. 2007) (citation omitted). When

determining objective reasonableness in the context of a deadly

force claim, summary judgment is appropriate when a rational

jury “could not find that [the officer’s] conduct was so 19 deficient that no reasonable officer could have made the same

choice . . . .” Roy,

. Put differently, an

officer is entitled to summary judgment when a jury could find

that a reasonable officer could have made the same decision

under the circumstances. See Napier v. Town of Windham,

(1st Cir. 1999) (noting that a trial court applied

the correct summary judgment standard when it “replaced the

inartful phrasing of the standard applied in Roy with an

equivalent standard that omitted the double negative”).

A jury could find that a reasonable officer could have used

deadly force against Esty-Lennon under the circumstances

presented in this case. Both officers were informed at the

outset that there might be an individual at the scene of the

accident armed with a knife. When they arrived at the scene,

both officers quickly made contact with Esty-Lennon, who had a

small knife in his right hand. The officers pointed their

firearms at Esty-Lennon and repeatedly ordered him to put the

knife down. Rather than comply, Esty-Lennon took several steps

toward the officers. The officers continued to direct Esty-

Lennon to put the knife down, with Officer Jarvis at one point

exclaiming, “Drop the knife or I will shoot you!” Esty-Lennon

backpedaled, then turned and ran in the other direction. When

he did so, both officers lowered their firearms and pursued 20 Esty-Lennon, with Officer Collins holding a Taser in his right

hand. Still holding the knife, Esty-Lennon increased speed,

looked over his shoulder, abruptly turned toward the officers,

and ran several steps in the officers’ direction. Backpedaling,

the officers opened fire on Esty-Lennon when he was only several

feet away, just as he started to stagger. Even when viewed in

the light most favorable to Esty, these facts, which are not

disputed, demonstrate that both officers were presented with

“circumstances that [were] tense, uncertain, and rapidly

evolving” and were “forced to make split-second judgments.”

Graham,

. The court cannot say that under the

circumstances, a reasonable jury could not find that a

reasonable officer could have made the same judgments as the

officers made here. 6

Esty’s counsel essentially conceded as much at the hearing,

6 Though Esty raises no such argument, other litigants have criticized the standard applied here as requiring a plaintiff to prove her substantive case in order to survive a motion for summary judgment. See Napier,

. This criticism overstates a plaintiff’s burden in an excessive force case. To survive a motion for summary judgment, a plaintiff need only present a version of events, supported by materials of evidentiary quality, that when taken as true would allow a jury to find that no reasonable officer could use deadly force under the circumstances. This rarely will be the only version of events in the record, and in such cases it will be up to the jury to decide which version to accept. With the video evidence in this case, however, there is no version of events that would allow a jury to find in Esty’s favor. 21 noting that “other people could say [that the officers were]

appropriate in shooting [Esty-Lennon].” Esty nevertheless

raises a series of arguments as to why summary judgment is not

warranted. First, she argues that the officers’ actions leading

up the shooting were unreasonable. To this end, she contends

that the officers: (1) should have spoken to the firefighter

driving the dark SUV, who would have informed them that Esty-

Lennon appeared to be mentally ill; (2) should have known from

Esty-Lennon’s behavior that he was mentally ill; (3) should have

known, or taken the time to determine, that Esty-Lennon was

injured; (4) should have set up a perimeter rather than engage

Esty-Lennon; and (5) should have tased Esty-Lennon or otherwise

deescalated the situation. Esty further argues that Officer

Collins should not have dropped his Taser when Officer Jarvis

said, “Greg, leave it!” and that the officers should not have

left the Taser on the ground. Esty’s expert raises similar

contentions in his report. See doc. no. 23-8.

Esty’s view of “reasonableness” is far too narrow, at least

for the purposes of an excessive-force claim. As noted, courts

must analyze such claims from the perspective of a reasonable

officer at the scene, not with the benefit of 20/20 hindsight.

This means that “a jury does not automatically get to second-

guess [an officer’s] life and death decisions, even though the 22 plaintiff has an expert and a plausible claim that the situation

could better have been handled differently.” Roy,

. As Esty seeks exactly that, her reasonableness arguments

fail.

In a related argument, Esty asserts that there are genuine

disputes about the events leading up to the shooting. She

details interactions Esty-Lennon had with the firefighter and

other potential witnesses following the crash but before the

officers arrived at the scene, and contends that these facts

preclude summary judgment. See doc. no. 23-1 at 2-6. The court

disagrees. For Esty to defeat summary judgment, there must be a

genuine dispute of material fact. See Fed. R. Civ. P. 56(a).

“A ‘material’ fact is one that might affect the outcome of the

suit under the governing law.” Reyes-Orta v. P.R. Highway &

Transp. Auth.,

(1st Cir. 2016) (citations and

quotation marks omitted). Here, Esty has not explained, and the

court fails to see, how events occurring before the officers’

arrival, and about which they had no knowledge at the time of

the shooting, have any bearing on the outcome of this case.

Indeed, the only plausible argument Esty makes with respect to

those events is that the officers should have made themselves

aware of them before engaging Esty-Lennon. But as previously

discussed, this argument asks the court to use a level of 23 hindsight not permitted under controlling authority. It is

therefore unavailing.

Perhaps recognizing this, Esty’s counsel asserted at the

hearing that, as a practical matter, courts do use 20/20

hindsight in excessive force cases. The court is not convinced.

Counsel has not identified any decision in which a court

performed the type of analysis he asks this court to perform,

and none of the cases counsel did cite at the hearing persuades

the court that such an analysis is appropriate. The first,

which counsel recollected was a Puerto Rico decision, is a non-

binding Ninth Circuit opinion that subsequent Ninth Circuit

panels have noted was abrogated by the Supreme Court’s decision

in Saucier v. Katz,

(2001). See Acosta v. City and

Cty. of S.F.,

(9th Cir. 1996), abrogation

recognized by Hung Lam v. City of San Jose,

(9th Cir. 2017); see also Randall v. Williamson,

(9th Cir. 2006) (also recognizing the abrogation). The

next, a Second Circuit decision also not binding on this court,

involved a factual dispute over whether a car was bearing down

on an officer at the time he opened fire, and is therefore

readily distinguishable from this case. See Cowan ex rel.

Estate of Cooper v. Breen,

, 763–65 (2d Cir. 2003).

Finally, counsel’s reference at the hearing to Pearson v. 24 Callahan,

(2009), is similarly unhelpful, as that

case addressed whether the unlawfulness of an officer’s conduct

was clearly established for qualified immunity purposes, not

whether an underlying constitutional violation had occurred.

See

. In short, counsel has provided no support

whatsoever for his request that the court ignore binding

authority to rule in his client’s favor. The court declines to

do so.

Esty next argues that Esty-Lennon did not pose a threat of

serious harm to Officer Collins or Officer Jarvis because both

officers had ample opportunity to “step out of [Esty-Lennon’s]

way, retreat and reestablish [their] position . . . .” Doc. no.

23-1 ¶ 23. She similarly contends that “a reasonable jury could

conclude that none of the facts known to Jarvis and Collins

suggested that [Esty-Lennon] posed an imminent threat.” Id. ¶

24. She cites several cases in support of these propositions.

See id. ¶¶ 23-24 (citing Cowan,

; Abraham v.

Raso,

(3d Cir. 1999); Acosta,

). In those cases, however, there were no video recordings

of the relevant events, requiring the court to credit the non-

movant’s version to the extent it was supported by competent

25 evidence. 7 Here, there is direct video evidence of the shooting,

which the court may rely upon for the purposes of its analysis.

See Scott,

. And as previously discussed, the

court cannot conclude, in light of the circumstances depicted on

those recordings, that a jury could find that the officers’ use

of force was objectively unreasonable. See Berube,

(noting that the “calculus of reasonableness must [allow for]

police officers to make split second judgments” (internal

quotation marks omitted)). As Esty’s argument to the contrary

essentially ignores the videos, it is not persuasive.

Esty suggests in her objection, and argued at the hearing,

that the officers did not face a threat of serious harm because

the knife in this case was small. This argument likewise fails.

While a knife’s size may certainly be relevant when analyzing an

excessive force claim, see, e.g., Estate of Larsen ex rel.

Sturdivan v. Murr,

(10th Cir. 2008) (noting

that “the knife was a large weapon with a blade over a foot in

length rather than a mere pocket knife or razor blade”); cf.

Kisela v. Hughes,

(2018) (holding that an

officer was entitled to qualified immunity for shooting a woman

7 Though surveillance footage is mentioned in one of the cited cases, it is plain from that court’s opinion that there was no footage of the actual shooting. See Abraham,

. 26 who was “holding a large kitchen knife”), this does not preclude

summary judgment in all cases involving smaller knives, see,

e.g., Roy,

(plaintiff was shot when “carrying a

steak knife in each hand”); cf. Wilson v. Miller,

(11th Cir. 2016) (officer was entitled to qualified

immunity when he believed decedent had a “small knife” in his

left hand). Rather, a court must consider the totality of the

circumstances to determine “whether an objectively reasonable

officer would believe the suspect posed a threat of serious

physical harm either to the officer or others.” Young,

(citation and internal quotation marks omitted). Based on

the video evidence in this case, an objectively reasonable

officer could believe that, notwithstanding the size of the

knife, Esty-Lennon posed a threat of serious physical harm to

both officers. Esty’s contrary argument once again disregards

this evidence. 8

Esty also appears to argue that her expert report creates a

triable issue as to the reasonableness of the officers’ conduct.

The court disagrees. In addition to subjecting the officers’

conduct to far greater scrutiny than controlling authority

8 The same is true of Esty’s argument that Esty-Lennon’s distance from the officers at the time of the shooting made their conduct unreasonable. The body-camera footage belies any suggestion that the officers shot Esty-Lennon from some great distance. 27 permits, the events described in the expert report are at times

at odds with the video evidence. Moreover, the expert report

repeatedly embraces the ultimate issue of the officers’

reasonableness, which several courts have held is beyond the

scope of expert testimony in excessive force cases. See M.H. v.

Cty. of Alameda, No. 11-cv-02868-JST,

, at *2 (N.D.

Cal. Jan. 2, 2015) (collecting cases). And in any event,

nothing in the expert report persuades the court that a dispute

of material fact exists such that this case should be put to a

jury despite the body-camera footage. The expert report is

therefore insufficient to defeat summary judgment on the

excessive force claim.

Esty likens her expert report here to the expert reports in

Rand v. Lavoie,

(Barbadoro, J.). Though Rand is an

important and instructive decision, it does not support Esty’s

position. In Rand, the parties disputed whether the decedent’s

car was moving at the time she was shot and, if so, whether the

defendant officer nonetheless had enough time to get out of the

way. See id. at 12-21. The plaintiff’s expert reports

highlighted and expounded upon these factual disputes. See id.

Noting that there was no video evidence conclusively

demonstrating the events at issue, see id. at 15, Judge

Barbadoro relied in part on the expert reports to conclude that 28 there were triable issues of fact, see id. at 12-21. As there

is conclusive video evidence in this case, however, Esty cannot

ask this court to do the same. She thus attempts to use her

expert to manufacture triable issues out of undisputed video

evidence. Nothing in Rand supports this attempt, which fails

for the reasons stated in the preceding paragraph.

Finally, Esty contends that Esty-Lennon’s physical

condition at the time of the shooting made the officers’ conduct

unreasonable. To this end, she asserts that Esty-Lennon was

“extremely unsteady on his feet” and “appeared to be dazed,

disoriented and confused . . . .” Doc. no. 23-1 ¶ 15. As these

assertions are inconsistent with the video evidence, the court

need not credit them. See Scott,

.

Esty also asserts that Esty-Lennon was staggering when the

officers shot him. When viewed in the light most favorable to

Esty, the video evidence does support this assertion. This does

not alter the court’s analysis, however, as it is clear from the

videos that Esty-Lennon staggered at virtually the same instant

the officers opened fire. Thus, even crediting this assertion,

the officers’ decision to use deadly force was the sort of

“split-second judgment” that the “calculus of reasonableness”

accommodates in excessive force cases. See Berube,

. The mere fact Esty-Lennon staggered, without more, does not 29 defeat summary judgment on the excessive force claim.

For all of these reasons, the defendants are entitled to

summary judgment on the merits of Count 5.

b. Qualified Immunity

The defendants contend that even if summary judgment were

not appropriate on the merits of Esty’s excessive force claim,

Officer Collins and Officer Jarvis are still entitled to

qualified immunity. 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). Because the court need not consider both prongs of

qualified immunity when one is dispositive, see Pearson,

, and because analysis under the first prong would

mirror the above analysis on the merits, the court solely

addresses whether the unlawfulness of the officers’ conduct was

clearly established at that time. For the following reasons,

the court concludes that it was not.

“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 30 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 moving party raises a qualified immunity defense, the

nonmoving party has the burden of showing that qualified

immunity does not apply. See Mitchell,

(second

prong); cf. Ashcroft v. al-Kidd,

, 735 (2011).

To be clearly established, the legal principle at issue

must be “settled law.” Wesby,

(citation

omitted). This requires “controlling authority or a robust

consensus of cases of persuasive authority” demonstrating that a

reasonable officer should have known his conduct was unlawful at

the time it occurred. See

(citation and internal

quotation marks omitted). “The precedent must be clear enough

that every reasonable official would interpret it to establish

the particular rule the plaintiff seeks to apply.”

(citation omitted). “Otherwise, the rule is not one that every

reasonable official would know.”

(citation and internal

quotation marks omitted).

This standard “also requires that the legal principle 31 clearly prohibit the officer’s conduct in the particular

circumstances before him.”

When determining whether an

officer violated clearly established law, courts must consider:

(a) whether the legal contours of the right in question were sufficiently clear that a reasonable officer would have understood that what he or she was doing violated the right, and (b) whether in the particular factual context of the case, a reasonable officer would have understood that his or her conduct violated the right.

Fernandez Salicrup v. Figueroa-Sancha,

, 325–26 (1st

Cir. 2015) (brackets omitted) (quoting Mlodzinski v. Lewis,

(1st Cir. 2011)). 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 [of] 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 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 and internal quotation marks omitted). In other

words, “[a] rule is too general if the unlawfulness of the

officer’s conduct does not follow immediately from the

32 conclusion that the rule was firmly established.”

(citations, internal quotations, and brackets omitted).

Though Esty appears to recognize her burden under the

clearly established prong, see doc. no. 23-1 ¶¶ 26-30, she makes

little attempt in her objection to point the court to precedent

demonstrating that the officers violated Esty-Lennon’s clearly

established rights. The few cases she does cite are not

helpful, as they address excessive force claims “at a high level

of generality.” See Wesby,

. And her reliance

on law-enforcement policy and state law similarly does not move

the ball, as the Supreme Court has made clear that in order to

defeat qualified immunity, the clearly established right must be

the federal right on which the claim for relief is based. See

Elder v. Holloway,

(1994) (citing Davis v.

Scherer,

, 193–96, 196 n.14 (1984)); see also Hill

v. Selsky,

(W.D.N.Y. 2007) (citations

omitted) (“[T]he existence of qualified immunity does not depend

on whether the right in question was clearly established under

state law, but on whether the federal right giving rise to the

claim was clearly established at the time of the alleged

violation.” (emphasis omitted)).

When pressed at the hearing, Esty’s counsel conceded that

he “ha[dn’t] specifically addressed exactly how each officer 33 would have been on notice” that his conduct violated the law.

Counsel nevertheless argued that Cowan, Acosta, and Rand clearly

establish the right in question. The court disagrees. None of

these decisions is binding on this court, and the court is hard

pressed to conclude that three cases — one of which has been

expressly abrogated — constitute a “robust consensus of cases of

persuasive authority.” Wesby,

. But even

if they did, each of these decisions is readily distinguishable

from the present case: unlike here, there is no suggestion in

Acosta that the subject of the shooting was armed with a knife

or any other weapon or was approaching the officers when he was

killed, see

, and as previously noted, Cowan and

Rand both involved factual disputes as to whether the decedents

were driving at the officers at the time they were shot, see

Cowan,

; Rand,

. 9 Thus,

Cowan, Acosta, and Rand do not clearly establish that the

officers’ conduct in this case was unlawful.

At the hearing, Esty’s counsel appeared to suggest that

this was the rare “obvious case” in which a non-movant can

defeat qualified immunity without identifying precedent that

9 Esty’s reliance on Rand is further misplaced because it was decided in September 2017, more than two years after the conduct at issue here occurred.

34 addresses similar circumstances. As counsel did not develop

this argument, and at times seemed to back away from it, the

court is free to disregard it. See Higgins,

.

The court nonetheless has three observations with respect to

obviousness.

First, counsel’s suggestion that this is an obvious case

because Esty-Lennon did not have a gun is a nonstarter. There

is no categorical rule that officers may not use deadly force on

individuals armed only with knives. Rather, courts must analyze

the totality of the circumstances in each particular case. In

doing so, numerous courts have found that officers who shot

individuals armed only with knives were entitled to qualified

immunity. See, e.g., Kisela,

; City & Cty. of

S.F., Calif. v. Sheehan,

(2015); Roy,

. Any suggestion to the contrary is simply

incorrect. 10

Second, nothing in Young v. City of Providence ex rel.

Napolitano makes this an obvious case. Young involved two

10So, too, is Esty’s suggestion that the size of the knife makes this an obvious case. The court has already discussed the knife’s size in the context of the underlying violation. See supra pp. 26-27. But it is worth emphasizing here that it is far from obvious that an officer cannot use deadly force on an individual who runs toward him with a knife merely because that knife is small. Cf. Roy,

; Wilson,

. 35 Providence police officers shooting a third, off-duty officer

when responding to a call. See

. These facts bear

little resemblance to the undisputed facts in the record here.

Thus, Young in no way suggests that either officer’s conduct in

this case was obviously unlawful.

Finally, Esty may not rely on the Supreme Court’s landmark

decision in Tennessee v. Garner to argue that this is an obvious

case. The Supreme Court has admonished courts not to rely too

heavily on “Garner’s general test for excessive force,”

particularly in cases that are not on all fours with the facts

presented there. See Mullenix v. Luna,

(2015)

(per curiam); Brosseau v. Haugen,

(2004) (per

curiam). In Garner, the Supreme Court held that it was

unconstitutional to use deadly force to prevent an unarmed

suspect from escaping.

. It is clear from the

video evidence here that Esty-Lennon was neither unarmed nor

trying to escape when the officers shot him. Accordingly,

Garner does not support a conclusion that this is an obvious

case.

In short, Esty has not demonstrated that either officer

violated Esty-Lennon’s clearly established rights. The officers

are therefore entitled to qualified immunity on Count 6.

36 c. Summary

In sum, a reasonable jury could find, based on the

undisputed video evidence, that a reasonable officer could have

used deadly force under the circumstances presented in this

case. Additionally, both officers are entitled to qualified

immunity. For these reasons, the court grants the defendants’

motion for summary judgment on Count 5.

3. Municipal Policy or Custom (Count 6)

In Count 6, Esty brings a § 1983 claim against the Town,

contending that the shooting was the result of an

unconstitutional municipal policy or custom. This type of claim

is governed by the Supreme Court’s decision in Monell v. Dep't

of Soc. Servs. of City of N.Y.,

(1978). Under that

decision, a municipality may only be held liable under § 1983

for constitutional violations committed by its employees “if the

violation occurs pursuant to an official policy or custom.”

Welch v. Ciampa,

(1st Cir. 2008) (citing

Monell,

). For a municipality to be held liable,

a plaintiff’s injury must result “from either an officially

sanctioned policy or from a custom or practice that is so well-

settled and widespread that the policymaking officials can be

said to have either actual or constructive knowledge of it yet

did nothing to end the practice.” Wood v. Hancock Cty. 37 Sheriff's Dep't,

(1st Cir. 2003) (ellipsis,

internal quotation marks, and citation omitted). A plaintiff

must show that, “through its deliberate conduct, the

municipality was the ‘moving force’ behind the injury alleged.”

Haley v. City of Boston,

(1st Cir. 2011)

(emphasis and citation omitted).

The defendants raise two arguments as to why they are

entitled to summary judgment on Count 6. First, they contend

that Esty’s Monell claim fails because “there has been no

deprivation of a constitutional right.” Doc. no. 18-1 at 22.

Alternatively, the defendants argue that “there is no evidence

of an unconstitutional policy or practice that led to the use of

deadly force in this case . . . .”

The court need not

reach both arguments, as summary judgment is appropriate under

the first.

A municipality “cannot be held liable [under § 1983] absent

a constitutional violation by its officers.” Evans v. Avery,

(1st Cir. 1996); see also City of L.A. v.

Heller,

(1986) (“If a person has suffered no

constitutional injury at the hands of the individual police

officer, the fact that the departmental regulations might have

authorized the use of constitutionally excessive force is quite

beside the point.” (emphasis omitted)). In this case, Esty 38 withdrew her equal-protection claim and the court ruled that the

defendants were entitled to summary judgment on the merits of

Esty’s due-process and excessive force claims. There is

accordingly no underlying constitutional violation upon which

municipal liability can be based.

When construed liberally, Esty’s amended complaint appears

to suggest that various alleged failures by the Town provide an

independent basis for municipal liability. See doc. no. 14 ¶

62. The First Circuit rejected a similar argument in Evans, see

100 F.3d at 1039–40, and Esty has made no attempt to

differentiate that case. Indeed, Esty does not address her

Monell claim at all in her objection. The court therefore

concludes that Evans controls. Per that decision, Esty’s Monell

claim cannot survive without an underlying constitutional

violation.

The court accordingly grants the defendants’ motion for

summary judgment as to Count 6.

4. State-Law Claims

The remaining counts are state-law claims against the

officers or the Town for wrongful death, civil conspiracy,

infliction of emotional distress, negligent supervision and

training, respondeat superior, and battery. At the hearing, all

sides requested that the court address the state-law claims on 39 summary judgment. After careful review, the court declines to

do so, concluding that it is more appropriate to remand them to

state court.

The sole basis for this court’s jurisdiction over the

state-law claims is supplemental jurisdiction under

. In light of the above rulings, however, there are no

longer any federal claims in this case. “[I]n the usual case in

which all federal-law claims are eliminated before trial, the

balance of factors to be considered under the pendent

jurisdiction doctrine . . . will point toward declining to

exercise jurisdiction over the remaining state-law claims.”

Wilber v. Curtis,

(1st Cir. 2017) (internal

quotation marks omitted) (quoting Carnegie–Mellon Univ. v.

Cohill,

, 350 n.7 (1988) and citing

(c)(3)). “[I]t is an abuse of discretion for a district

court to retain jurisdiction over the remaining pendent state

law claims unless doing so would serve the interests of

fairness, judicial economy, convenience, and comity.”

(citations and internal quotation marks omitted). Similarly,

“it can be an abuse of discretion — if no federal claim remains

— for a district court to retain jurisdiction over a pendent

state law claim when that state law claim presents a substantial

question of state law that is better addressed by the state 40 courts.”

(citation and internal quotation marks omitted).

On balance, these considerations weigh in favor of

remanding the state-law claims to the superior court. Though it

may delay the case somewhat in the short term, there is nothing

fundamentally unfair about remand. The parties have already

fully briefed and argued the summary judgment issues here and

should be ready to do the same in state court. This is

especially true given that discovery closed after the summary

judgment argument with neither side suggesting that discovery

disputes remained unresolved. Similarly, remand should

alleviate the concerns Esty’s counsel expressed at the summary

judgment hearing regarding additional non-party information he

hoped to collect, as he has now had more than five additional

months to secure that information. In light of these facts,

remand serves the interests of fairness.

These same facts also undercut any suggestion that it is

more convenient to litigate the state-law claims in this court

than in state court. Given that both parties fully briefed and

argued summary judgment and discovery is now closed, the

remaining claims are teed up for resolution, either at summary

judgment or at trial. As the claims arise under state law,

there is no compelling reason for this court to be the one that

resolves them. 41 Judicial economy cuts both ways. On the one hand, both the

court and the parties have expended time and resources

litigating the state-law claims in this forum. But at the same

time, it may not be an economical use of a federal court’s

resources to resolve state-law claims over which it may decline

jurisdiction when doing so comes at the expense other pending

matters that fall within the court’s original jurisdiction.

Thus, while this factor does not weigh strongly in favor of

remand, it similarly does not provide a convincing basis to

retain jurisdiction.

Finally, comity weighs in favor of remand. Quoting the

Supreme Court, the First Circuit has repeatedly noted that

“needless decisions of state law should be avoided both as a

matter of comity and to promote justice between the parties, by

procuring for them a surer-footed reading of applicable law.”

Desjardins v. Willard,

(1st Cir. 2015) (brackets

and quotation marks omitted) (quoting United Mine Workers v.

Gibbs,

(1966)). With the federal claims gone,

there is no longer any need for this court to resolve the state-

law claims. It is therefore the better course for the state

court to address those claims in the first instance.

While the court recognizes that remanding the state claims

imposes some additional burden on the parties, it would not 42 serve the interests of fairness, judicial economy, convenience,

and comity for this court to retain jurisdiction over those

claims. The court accordingly remands Counts 1, 2, 4, 7, 8, and

9 to state court. 11

IV. CONCLUSION

For the reasons set forth above, the court grants the

defendants’ motion for summary judgment as to Counts 3, 5, and

6. The court declines supplemental jurisdiction over the

remaining state-law claims and remands them to state court. All

other pending motions are denied as moot. The Clerk of Court

shall enter judgment accordingly and close the case.

SO ORDERED.

__________________________ Andrea K. Johnstone United States Magistrate Judge

June 8, 2018

cc: Peter G. McGrath, Esq. Charles P. Bauer, Esq. John A. Curran, Esq. Matthew Vernon Burrows, Esq. Brian J.S. Cullen, Esq.

11Esty’s counsel sought to withdraw several of these counts during the summary-judgment hearing. As the court declines jurisdiction over all of the state-law claims, it need not address this request. 43