United States Court of Appeals For the First Circuit

No. 20-1343

JESSICA FAGRE, as personal representative of the Estate of Ambroshia E. Fagre,

Plaintiff, Appellant,

v.

JEFFREY PARKS, Trooper,

Defendant, Appellee,

MARK BROWN, Chief of Police; SCOTT W. IRELAND, Lieutenant,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Lynch and Barron, Circuit Judges, and Burroughs,* District Judge.

Hunter J. Tzovarras, with whom Pelletier Faircloth & Braccio LLC was on brief, for appellant. Jonathan R. Bolton, Assistant Attorney General of the State of Maine, with whom Aaron M. Frey, Attorney General of the State of Maine, was on brief, for appellee.

* Of the District of Massachusetts, sitting by designation. January 13, 2021 LYNCH, Circuit Judge. The plaintiff, Jessica Fagre

("Fagre"), acting as the personal representative of the estate of

Ambroshia Fagre ("Amber"), appeals from the district court's March

5, 2020 order granting summary judgment on claims related to

Amber's death on February 10, 2017. Fagre argues that the district

court erred because the defendant, Trooper Jeffrey Parks, violated

Amber's rights under the United States and Maine Constitutions

when he unintentionally shot and killed her and was not entitled

to qualified immunity. She also argues that Trooper Parks

committed state law torts against Amber and was not entitled to

tort immunity. We affirm.

I. Facts

On February 10, 2017, at around 4:00 PM, Lieutenant Scott

Ireland of the Maine State Police responded to a report of a

suspicious vehicle in his neighborhood in Vassalboro, Maine. He

arrived at the scene and found Amber Fagre asleep in the passenger

seat of a running Dodge Durango. He said he saw footprints in the

snow leading from the Durango to a nearby home. He woke Amber up

and questioned her. He said she appeared confused and was either

unwilling or unable to explain why she was there or where the

driver of the Durango had gone. Lt. Ireland believed that Amber

and the Durango's driver were breaking into homes. He reported

what he had found over the police radio.

- 3 - Lt. Ireland continued to question Amber. She admitted

that the Durango's driver was breaking into homes. The footprints

in the snow led to the home of Richard Browne. Lt. Ireland made

a series of phone calls to determine if Browne was safe. He

learned from one of Browne's relatives that someone had broken

into Browne's home, held him at gunpoint, tied him up, held him in

the basement, and ransacked his house. The attacker had also

stolen Browne's pickup truck. Lt. Ireland reported this additional

information over the radio and requested that all available units

report to the scene.

In response, Sergeant Galen Estes arrived at the scene

in his cruiser. Lt. Ireland then left to check on Browne, who

confirmed that he had been attacked and gave a description of his

attacker. Vassalboro Police Chief Mark Brown, followed later by

Trooper Jeffrey Parks, joined Sgt. Estes at the Durango in separate

vehicles.

When Trooper Parks, appellee here, arrived, he saw Chief

Brown talking to someone in the Durango. He did not look at the

person in the car but said he assumed it was the female suspect

Lt. Ireland had described over the radio. Trooper Parks then left

the scene to meet Lt. Ireland. At some point after Trooper Parks

left, Sgt. Estes moved his cruiser away from the scene.

Lt. Ireland met Trooper Parks and told him to conduct

safety checks of nearby residences. Lt. Ireland then returned to

- 4 - the Durango to join Sgt. Estes and Chief Brown. After he arrived,

he heard over the radio that another officer had located Browne's

stolen truck. Immediately thereafter, he received a call from

Kate Pineau. Pineau said that the armed suspect was in front of

her house, which was about two tenths of a mile from the Durango.

Lt. Ireland and Sgt. Estes left the scene to investigate. Lt.

Ireland drove his police cruiser and Sgt. Estes took Chief Brown's

vehicle. Chief Brown stayed with Amber and the Durango. No police

vehicles remained at the scene.

Lt. Ireland and Sgt. Estes arrived at the Pineau

residence. There, they found footprints. They followed the

footprints and eventually saw the suspect. Lt. Ireland said that

he realized that the suspect was heading back to the Durango. He

told Sgt. Estes to warn Chief Brown over the radio, which he did.

Lt. Ireland then headed back to the Durango.

After receiving Sgt. Estes's warning, Chief Brown saw

the suspect running toward him. He said the suspect appeared to

have a gun. Chief Brown identified himself as a police officer

and ordered the suspect to drop his gun. He said the suspect

ignored the order, ran to the passenger side of the Durango, and

raised his right arm toward Chief Brown. Chief Brown said he

believed his life was in danger and that the suspect was going to

shoot at him. He fired at the suspect. He then took cover behind

- 5 - a snowbank on the driver side of the Durango. Chief Brown heard

the suspect fire at least one shot and returned fire.

The suspect got into the Durango and began driving.

Amber was still in the passenger seat. Chief Brown said that he

feared the suspect intended to fire on him again. He fired at

least two additional shots at the driver-side door of the Durango,

aiming for the driver. All parties agree that, had Amber been

sitting upright in the passenger seat, she likely would have been

hit by one of Chief Brown's bullets. The parties have stipulated

that none of Chief Brown's shots hit Amber.

Meanwhile, Trooper Parks had heard over the radio that

Lt. Ireland saw the suspect heading back to the Durango. He drove

his police cruiser back to where the Durango had been. It had

been approximately seventeen minutes since Trooper Parks had last

been at the scene. Both police vehicles he had previously seen

there were gone. As he approached, he said he heard multiple

gunshots near the Durango. He said he saw someone crouched behind

a snowbank and movement outside of the Durango. He concluded that

the suspect and the police were exchanging fire. He parked his

cruiser in the middle of the road, approximately twenty-five yards

from the Durango. He got out and took cover behind his car.

Trooper Parks said he saw the Durango start driving

toward him. The car was accelerating rapidly, and Trooper Parks

said that from the engine noise he believed that the driver had

- 6 - pushed the gas pedal to the floor. The road was too narrow for

the Durango to pass Trooper Parks's cruiser without hitting a

snowbank, so Trooper Parks concluded that the driver intended to

ram his car. Trooper Parks quickly moved away from his cruiser

and climbed on top of a snowbank. He said that it was a sunny day

and that there was plenty of light outside. He said that, from

the snowbank, he could see directly into the Durango and that

nothing obstructed his view. He said that he saw only the driver

and that the passenger seat appeared to be empty.

The Durango continued to accelerate toward Trooper

Parks's car. Trooper Parks said he believed his life was in

immediate danger. He fired several shots into the Durango as it

passed within a couple feet of him and collided with his police

cruiser. He said he aimed all of his shots at the driver and that

he intended to stop the driver from using deadly force against

him. The Durango crashed into Trooper Parks's cruiser, missing

him by a few feet. The force of the impact pushed his cruiser

about fifty feet down the road.

Lt. Ireland then arrived back at the scene. He said he

had heard the gunshots but did not witness the crash. He saw that

the Durango had crashed into Trooper Parks's cruiser. Lt. Ireland

began to approach the Durango on foot. Once he was within fifteen

or twenty yards of the Durango, he said that he could see the

driver and that the driver appeared to have something in his hand.

- 7 - The driver had his hand out of the driver-side window. Lt. Ireland

identified himself as a state police officer and told the driver

to show him both of his hands. Instead of complying, the driver

put his arm back in the car, looked back over his shoulder at Lt.

Ireland, then looked at his lap and the Durango's center console

before looking back at Lt. Ireland. Lt. Ireland fired one shot,

killing the driver.

The police then approached the Durango and found Amber

slumped across the center console of the car with her head under

the driver's arm. An autopsy revealed that a single bullet,

stipulated to have been fired by Trooper Parks, had passed through

her right shoulder and head, killing her. The parties agree that

the trajectory of the bullet makes it extremely unlikely that Amber

had been sitting upright in the Durango when she was shot.

II. Procedural History

Fagre, as the personal representative of Amber's estate,

filed suit against Trooper Parks, Lt. Ireland, and Chief Brown.

Her complaint alleged: (1) use of excessive force against Amber in

violation of the Fourth and Fourteenth Amendments under

; (2) use of excessive force against Amber in violation of

Article 1, § 5 of the Maine Constitution under the Maine Civil

Rights Act ("MCRA"),

; (3) failure to

protect Amber in violation of the Fourteenth Amendment under 42

- 8 - U.S.C. § 1983; (4) negligence under Maine state law; and

(5) wrongful death under Maine state law.

The district court dismissed all of the claims against

Chief Brown and Lt. Ireland, which Fagre does not appeal. After

discovery, the district court granted Trooper Parks's motion for

summary judgment. Fagre v. Parks, No. 19-CV-00083,

, at *7 (D. Me. Mar. 5, 2020). As to Fagre's § 1983 claim,1

the court held that Trooper Parks had not violated Amber's Fourth

Amendment rights and was entitled to judgment as a matter of law.

It added that, even if Trooper Parks had seized Amber in violation

of the Fourth Amendment, he would be entitled to qualified immunity

from § 1983 liability. The district court also granted summary

judgment for Trooper Parks on the MCRA § 4682 claim because the

protections of Article 1, § 5 of the Maine Constitution are

coextensive with those of the Fourth Amendment. State v. Martin,

, 118 n.2 (Me. 2015). On the remaining claims, the

court held that Trooper Parks's discretionary use of force was

reasonable and that the Maine Tort Claims Act ("MTCA"),

(1), shielded him from tort liability.

Fagre appeals from the district court's grant of summary

judgment.

1 The district court did not address Fagre's other § 1983 claim that Trooper Parks failed to protect Amber because, after discovery, Fagre agreed not to pursue it.

- 9 - III. Analysis

We review a grant of summary judgment de novo. See,

e.g., Irish v. Fowler,

(1st Cir. 2020). We read

the facts in the light most favorable to the non-moving party --

here, Fagre -- and make all reasonable inferences in her favor.

A. Federal Claim

Fagre says that the district court erred in three ways

when it granted Trooper Parks's motion for summary judgment on her

§ 1983 claim. First, she argues that the district court erred by

holding that Trooper Parks did not seize Amber under the Fourth

Amendment. Next, Fagre argues that the district court erred in

concluding that Trooper Parks's use of force was objectively

reasonable. Finally, she says that the court erred by concluding

that Trooper Parks was entitled to qualified immunity. We hold

that, on these facts, there was no Fourth Amendment violation

because Trooper Parks's use of force was objectively reasonable.

Further, the district court correctly concluded that Trooper Parks

was entitled to qualified immunity.

Plaintiffs whose constitutional rights have been

violated by someone acting under the color of state law can recover

damages under

. See Cruz–Erazo v. Rivera–Montañez,

(1st Cir. 2000). Fagre says that Trooper Parks

used excessive force against Amber, which violated her Fourth

- 10 - Amendment right to be free from an unreasonable seizure. See U.S.

Const. amend. IV. To avoid summary judgment, she must allege facts

showing that Trooper Parks (1) seized Amber and (2) did so

unreasonably. See Brower v. County of Inyo,

(1989) ("'Seizure' alone is not enough for § 1983 liability; the

seizure must be 'unreasonable.'"); see also Plumhoff v. Rickard,

(2014) ("A claim that law-enforcement officers

used excessive force to effect a seizure is governed by the Fourth

Amendment's 'reasonableness' standard.").

Setting aside whether Trooper Parks seized Amber,2 Fagre

"must show that the defendant officer employed force that was

unreasonable under the circumstances." Kenney v. Floyd,

(1st Cir. 2012) (quoting Jennings v. Jones,

(1st Cir. 2007)). We assess reasonableness "from the

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

2 In Landol-Rivera v. Cruz Cosme,

(1st Cir. 1990), we held that a hostage was not "seized" within the meaning of the Fourth Amendment when a police officer shot the hostage while firing into a car containing both the hostage and a fleeing suspect.

("A police officer's deliberate decision to shoot at a car containing a robber and a hostage for the purpose of stopping the robber's flight does not result in the sort of willful detention of the hostage that the Fourth Amendment was designed to govern."). Fagre argues that Brendlin v. California,

(2007), requires us to revisit our holding in Landol- Rivera because Brendlin says that when a police officer intentionally stops a vehicle, the officer subjects all of the vehicle's occupants to a Fourth Amendment seizure. See

. Because we hold that Trooper Parks's actions were objectively reasonable, we do not need to reach this issue.

- 11 - the 20/20 vision of hindsight" and account "for the fact that

police officers are often forced to make split-second judgments

-- in circumstances that are tense, uncertain, and rapidly evolving

-- about the amount of force that is necessary in a particular

situation."

(quoting Graham v. Connor,

(1989)). The standard is objective and fact specific. See Graham,

("[T]he question is whether the officers' actions

are 'objectively reasonable' in light of the facts and

circumstances confronting them, without regard to their underlying

intent or motivation.").

We first note that, based on the facts alleged and

admitted by Fagre, no reasonable jury could conclude that Trooper

Parks knew or should have known that Amber was in the car when he

fired into the Durango. Trooper Parks had seen Chief Brown talking

to Amber, who was in the Durango, when he first arrived at the

scene. He then left to conduct safety checks on nearby residences.

Seventeen minutes passed before Trooper Parks returned to the

scene. In that time, he received no information indicating that

Amber was still in the Durango. And when he returned to the scene,

much had changed. Before, Trooper Parks had seen two police

cars -- Sgt. Estes's cruiser and Chief Brown's vehicle -- near the

Durango. Amber was with Sgt. Estes and Chief Brown. Now, he saw

only the Durango and heard what appeared to be a shootout between

the suspect and the police. He saw no police cars, did not see

- 12 - Amber, and could have believed that Amber had been taken away in

one of the police vehicles.

Trooper Parks's observations prior to him defending

himself by shooting at the driver confirmed his belief that Amber

was not in the Durango. After he climbed onto the snowbank, he

looked directly through the windshield into the Durango as it sped

toward him and saw only the driver. It is undisputed that he did

not see Amber in the passenger seat and that the passenger seat

appeared to be empty.3 As other evidence showed, Trooper Parks

did not and could not see Amber because she was slumped out of

sight rather than sitting upright in the passenger seat. As the

Durango sped toward Trooper Parks, Chief Brown had fired into it

and likely would have hit Amber if she had been sitting upright.

The path of Trooper Parks's bullet through Amber's body also

indicated that she had not been sitting upright in the Durango.

Indeed, when her body was found, her head was tucked under the

driver's arm. Based on what Trooper Parks saw, he did not know

and nothing in the record indicates he should have known that Amber

had been in the Durango when he fired at the driver.

Fagre argues that Trooper Parks's use of force was

unreasonable because Trooper Parks was not in imminent danger.

3 Although below Fagre denied Amber was not in the front seat of the vehicle, she notably did not dispute Trooper Parks's statement that he could not see Amber in the passenger seat from his position on the snowbank.

- 13 - She says that the driver, the Durango, and Amber posed no threat

to anyone when Trooper Parks fired into the Durango.

"[T]he use of deadly force is constitutional only if, at

a minimum, a suspect poses an immediate threat to police officers

or civilians." Conlogue v. Hamilton,

(1st Cir.

2018) (quoting Jarrett v. Town of Yarmouth,

(1st

Cir. 2003) (per curiam)).4 No reasonable jury could conclude that

it was unreasonable for Trooper Parks to believe that the driver

posed an immediate threat. When Trooper Parks fired into the

Durango, the suspect was attempting to ram Trooper Parks and his

cruiser at full speed. See McGrath v. Tavares,

(1st Cir. 2014) ("The choices were to shoot or risk being run over.

. . . A reasonable officer in this situation could reasonably

believe he was facing a threat of serious physical harm, if not

death."); see also Mitchell v. Miller,

(1st Cir.

2015) ("[T]he test is not whether a person was actually directly

in the path of the car, but whether it was reasonable for [the

officer] to believe -- at the point when events were rapidly

unfolding -- that someone was at risk of serious physical harm.").

That Trooper Parks climbed a snowbank did not remove the oncoming

danger to him from the Durango or from his own cruiser once rammed

4 If feasible, the suspect must also be warned before deadly force is used. Conlogue,

. Fagre admits that a warning was infeasible.

- 14 - by the Durango. The Durango passed within a few feet of Trooper

Parks before hitting his police cruiser. It was travelling fast

enough that, when it did hit his cruiser, the Durango pushed it

fifty feet down the road. Had the driver changed course even

slightly, he could have rammed into Trooper Parks instead of the

police cruiser or rammed the police cruiser into the snowbank where

Trooper Parks was. Fagre's argument that Trooper Parks was not in

immediate danger because the Durango did not hit him and appeared

to turn slightly away from him before hitting the cruiser is not

persuasive. It relies on the "20/20 vision of hindsight," not the

"perspective of a reasonable officer on the scene." Graham,

.

Trooper Parks also knew that the suspect had a gun. The

driver, who had, moments earlier, fired his gun at another police

officer and was now accelerating at full speed toward Trooper

Parks, could have shot at Trooper Parks from the Durango. The

Durango came close enough to Trooper Parks for the armed driver to

pose an immediate threat. In the aftermath of the crash, the armed

driver would also pose a risk to Trooper Parks or other officers

at the scene. No reasonable jury could have concluded that Trooper

Parks did not reasonably believe his life was in danger. There

was no Fourth Amendment violation and summary judgment on Fagre's

§ 1983 claim was warranted.

- 15 - Trooper Parks was also entitled to qualified immunity.

"Government officials sued in their individual capacities are

immune from damages claims unless '(1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of

their conduct was "clearly established at the time."'" Irish,

(quoting District of Columbia v. Wesby,

(2018)). The "clearly established" prong of qualified immunity

involves two inquiries. It first "asks whether the precedent is

'clear enough that every reasonable official would interpret it to

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

(quoting Wesby,

). Next, it asks "whether '[t]he

rule's contours [were] so well defined that it is clear to a

reasonable officer that his conduct was unlawful in the situation

he confronted.'"

(alterations in original) (quoting Wesby,

).

Trooper Parks did not violate a federal statutory or

constitutional right. Further, on these facts, we cannot say that

every reasonable officer would have concluded that his life was

not in danger. The Supreme Court has "stressed the need to

identify a case where an officer acting under similar circumstances

was held to have violated the Fourth Amendment." City of Escondido

v. Emmons,

(2019) (quoting Wesby,

). The case law does not clearly establish that it is

unreasonable for an officer to conclude his life is in danger and

- 16 - to use potentially deadly force under circumstances like these.

Cf. Mitchell,

(holding that it was not

clearly established that an officer violated the Fourth Amendment

when he fired into a car that could have run him over); McGrath,

(holding there was no Fourth Amendment violation

when an officer fired into a car that could have run him over).

B. State Claims

Fagre also argues that the district court erred by

granting summary judgment on her state law claims.

On Fagre's MCRA § 4682 claim, "Article I, section 5 of

the Maine Constitution provides protections that are coextensive

with the Fourth Amendment." Martin,

n.2; Clifford

v. MaineGeneral Med. Ctr.,

, 587 n.21 (Me. 2014). As

we have described, there was no Fourth Amendment violation.

Summary judgment on Fagre's § 4682 claim was proper.

On Fagre's negligence and wrongful death claims, Trooper

Parks argues that he is entitled to immunity under the MTCA's

discretionary function exception. See

(1)(C). This exception grants employees of governmental

entities "absolute[] immun[ity] from personal civil liability"

when they are "[p]erforming . . . any discretionary function or

duty."

§ 8111(1). A police officer's use of force is a

discretionary act. See Roy v. Inhabitants of City of Lewiston,

(1st Cir. 1994) ("Maine case law has construed [the

- 17 - MTCA] to apply to claims of excessive force." (citing Leach v.

Betters,

(Me. 1991))). "Officers whose actions

are '"objectively reasonable" in light of the facts and

circumstances confronting them,' are not acting beyond the scope

of their discretion and are immune under the [MTCA]." Richards v.

Town of Eliot,

(Me. 2001) (citation omitted)

(quoting Graham,

). Because no reasonable jury

could find that Trooper Parks's actions were not objectively

reasonable, he is entitled to immunity under the MTCA.

IV.

Affirmed.

- 18 -