United States Court of Appeals For the First Circuit

Nos. 21-1086, 21-1087

ESTATE OF USAAMAH ABDULLAH RAHIM, by Rahimah Rahim, in her capacity as Personal Representative of the Estate of Usaamah Abdullah Rahim,

Plaintiff, Appellee,

v.

JOHN DOE 1; JOHN DOE 2,

Defendants, Appellants,

UNITED STATES,

Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Joseph B. Simons, with whom Sara Attarchi and Simons Law Office were on brief, for appellee. Daniel Aguilar, Attorney, Appellate Staff, Civil Division, with whom Brian M. Boynton, Acting Assistant Attorney General, Joshua S. Levy, First Assistant United States Attorney, and Mark B. Stern, Attorney, Appellate Staff, Civil Division, were on brief, for appellant John Doe 1. Nicole M. O'Connor, Senior Assistant Corporation Counsel, for appellant John Doe 2. October 20, 2022 LYNCH, Circuit Judge. FBI Special Agent John Doe 1 and

Boston Police Department Detective John Doe 2, members of the FBI's

Joint Terrorism Task Force (the "Task Force"), appeal from a

district court's denial of their pre-discovery motions for summary

judgment on qualified immunity grounds. The officers shot and

killed a terrorist suspect on June 2, 2015, in Boston's Roslindale

neighborhood. Plaintiff Rahimah Rahim, the representative of the

decedent's estate (the "Estate"), sued, alleging that the

officers' use of lethal force violated the Fourth Amendment and

asserting various claims under state law.

The district court found that the officers would be

entitled to qualified immunity if it considered only the moment of

the shooting. But it denied summary judgment and authorized

discovery on the theory that the proper focus was not just on the

encounter itself but on the officers' plans and actions in the

lead-up to the encounter. We reverse.

I.

A.

The following facts are not in dispute. In the spring

of 2015, decedent Usaamah Rahim was being investigated by the Task

Force for connections to the Islamic State of Iraq and the Levant

("ISIL"), a foreign terrorist group. Officers Doe 1 and Doe 2

were involved in this investigation.

- 3 - As part of the investigation, the Task Force conducted

electronic and physical surveillance on Rahim and on David Wright

and Nicholas Rovinski, believed to be Rahim's coconspirators. Cf.

United States v. Wright,

(1st Cir. 2019)

(affirming Wright's conviction for conspiracy to commit acts of

terrorism transcending national boundaries in violation of 18

U.S.C. § 2332b(a)(2) and (c)). The Task Force monitored calls

among the three men.

On June 2, 2015, at 5:18 a.m., Task Force officers

(likely not the defendants) intercepted a call between Rahim and

Wright, both located in the Boston area. Rahim told Wright that

he (Rahim) "was losing [his] intention" and thus "must act sooner

than anticipated." He could no longer wait for the "things" that

were "gonna . . . go down" in New York on the Fourth of July.

Instead of traveling to New York, his plans were "local" and

immediate: he would go on "vacation" "right here in Massachusetts."

He planned to "go[] after . . . those boys in blue" because they

were the "easiest target." Rahim had already given his "bi'ah

[allegiance]," and thus this would be more than simply a "vigilante

attack." The attack would be "random" and "might even happen

today." "[I]f not today, then tomorrow . . . ." Rahim expressed

his belief that "Jihad is a way out . . . of this dunayh [worldly

life]" and discussed plans to empty his bank account and prepare

a will.

- 4 - Around 6:00 a.m. that morning, Doe 1, Doe 2, and other

Task Force officers gathered in a CVS parking lot near Rahim's

apartment in the Roslindale neighborhood of Boston to conduct a

surveillance shift. Around this time, a Task Force supervisor

notified the surveillance team of Rahim's conversation with Wright

and instructed Doe 2 that Rahim had to be stopped from boarding

any public transportation. Doe 2 was aware that Rahim rode a

public bus from a stop in front of the CVS on Washington Street,

less than a five-minute walk from Rahim's apartment. Doe 2 relayed

the supervisor's order to other members of the surveillance team

and asked them to assemble at Doe 2's vehicle in the CVS parking

lot to develop a plan to prevent Rahim from boarding the bus.

An unidentified officer then asked police dispatch to

"start a few marked cars" to Rahim's neighborhood. The officer

continued: "[W]e need some detectives. We're going to stop a guy

armed with a knife. . . . [W]e have a gentleman, a black male, 6

feet, beard, 240, 20s, going to be coming out now armed with a

knife. The detectives are going to stop him. If we can get a few

marked cars in there to assist." Rahim met that description. As

the backup units headed toward Rahim's neighborhood, the officer

requested that they "be in the area" but "stay back" and turn off

their lights and sirens. He then requested that the backup units

stay just short of the Burger King and keep an eye in [sic] the bus stop that's right in front of the CVS sign. If our subject is making his

- 5 - way here now, we're going to take him out at that spot. We'll just need them to come up for backup. It will be plain clothes units, about four, taking a black male right in front of that bus stop, and that should be happening in the next few minutes.

Shortly after 7:00 a.m., the surveillance team watched

Rahim leave his apartment and walk toward the nearby bus stop on

Washington Street. As Rahim walked toward the bus stop, he placed

a call on his cell phone, speaking first with his brother, Muhammad

Rahim, and then with his father, Abdulla Rahim. Rahim told his

brother: "Unfortunately, you will not be seeing me again." The

record does not reveal whether the officers planning to intercept

Rahim were aware of the contents of this conversation. As Rahim

approached the bus stop, still on the phone, he was approached by

Doe 1, Doe 2, and other members of the surveillance team. The

record is unclear as to whether the officers identified themselves

and whether they approached with their weapons already drawn.1

1 The Estate presents an unsupported argument, contrary to the witness statements it presented in opposition to summary judgment, that the officers approached Rahim with guns drawn and did not identify themselves, a position the district court adopted on the basis that the officers were in plainclothes and Rahim's initial response was "Do I know you?" The Estate's own evidence is that several civilian witnesses understood the officers to be law enforcement officials. One of these witnesses also stated that the officers did not draw their weapons until after they commanded Rahim to put his hands up. The Estate's argument is not supported by the record. Further, even if the argument had any record support, which it does not, the officers would still be entitled to immunity.

- 6 - Rahim's cell phone captured audio of the ensuing

confrontation2:

Officer: "Put your hands up please."

Rahim: "Do I know you?"

Officer: "Put your hands up!"

Officer: "Put your hands up [unintelligible]."

Officer: "Drop it! Drop it right now!"

Rahim: "Why don't you drop yours?"

Officer: "Drop it!"

Rahim: "Why don't you drop yours?"

Officer: "Drop it!"

Rahim: "Why don't you drop yours?"

Officer: "Drop it!"

Rahim: "Why don't you drop yours?"

Officer: "Drop it!"

Rahim: "Drop yours!"

Officer: "Drop it!"

Rahim: "Drop yours!"

Officer: [Unintelligible]

Rahim: "Drop yours!"

Rahim: "Drop yours!"

Officer: [Unintelligible]

2 The Estate does not contest that Rahim's phone accurately captured audio of the encounter.

- 7 - Officer: [Unintelligible]

Rahim: "[Unintelligible] over here. Come on! Won't you shoot me?"

[Shots]

Throughout this exchange, Rahim advanced on the officers

and the officers retreated to maintain distance. Civilian

witnesses described Rahim as "not look[ing] like he was going to

stop" and at least one of the officers as appearing fearful. The

officers retreated backward across much of the CVS parking lot

until they were up against a curb at the edge of the lot. Rahim

kept advancing and came within twenty-five feet of the officers.

Just seconds before the shooting, Rahim had refused to put his

hands up, had refused to drop what was in his hand, had taunted

the officers telling them to drop what was in their hands, and had

taunted them more with his "Come on!" statement. An objective

officer would conclude Rahim had chosen to escalate the situation

and that Rahim was an increasing threat. And Rahim's actions were

consistent with his words: he kept advancing on the officers,

despite their attempts by retreating to not let him close the

distance. When he had come close enough to them to be a lethal

threat to the officers and others, they had split-second decisions

to make about what was needed to stop him. And two officers almost

simultaneously reached the same decision. Doe 1 fired twice and

- 8 - Doe 2 fired once. Rahim was hit. The entire encounter unfolded

over about thirty seconds.

After Rahim went down, the officers removed something

from his hand and tossed it away from him. One of the officers

stood guard over this object while the others performed first aid

on Rahim.

The Boston Police Department later processed an Ontario

Knife Company Model SP6 Fighting Knife -- thirteen inches long

with an eight-inch blade -- submitted for a post-incident

criminalistics report. The EMTs who responded to the scene also

found a knife sheath in their ambulance after delivering Rahim to

the hospital. The sheath, from which no latent prints were

recovered, appeared to be for a blade that was at least six inches

long. Rahim had been the only patient in the ambulance.

B.

The Estate sued Doe 1, Doe 2, and the United States on

May 31, 2018, alleging that the officers' actions violated Rahim's

Fourth Amendment rights under Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

(1971), and asserting

state law negligence, wrongful death, assault, and battery claims.3

The Estate's operative complaint does not allege that Rahim was

3 Although Doe 2 was a Boston Police Department Detective at the time of the events at issue, he was working as a member of a federal task force. The parties and the district court thus treated Bivens as the applicable framework.

- 9 - unarmed during the encounter. The complaint refers to the

officers' belief that Rahim was armed and planned to carry out a

terrorist attack:

• "Despite [the Task Force's] belief that Mr. Rahim planned

to kill someone and had bought three (3) large knives to

use in an alleged planned killing, there were no criminal

charges or warrants against Mr. Rahim."

• "At the time of [an alleged] meeting, the FBI and members

of the [Task Force] were already under the impression and

belief that the (3) individuals were conspiring to commit

an act of terror, on one or more individuals, and providing

material support and resources, and/or personnel services

to a foreign terrorist organization, namely ISIL."

• "Investigators allegedly believed that in preparation for

an attack, Mr. Rahim had purchased three (3) military-style

knives. . . . The [Task Force] allegedly believed that

the knives were going to be used to kill a particular

person."

• "According to the Suffolk County District Attorney's

Report, the [Task Force] believed that Mr. Rahim would be

armed with a knife when he left home again."

• "The Suffolk County District Attorney's Report alleges that

Mr. Rahim was holding a military style knife."

- 10 - The government moved for summary judgment before

discovery on the grounds that Doe 1 and Doe 2 were entitled to

qualified immunity.4 In support of these motions, the government

offered sworn statements from Doe 1, Doe 2, and three other Task

Force officers present at the shooting. These sworn statements

were taken several days after the incident pursuant to FBI

procedures.

In the sworn statements, officers Doe 1 and Doe 2 stated

the following relevant facts. Both officers were working as

members of the Task Force. They had been involved in prior

surveillance of Rahim and were aware that he had acquired knives.5

Both officers arrived at the CVS around 6:00 a.m. on June 2, 2015,

to conduct a surveillance shift on Rahim. When Doe 2 spoke to a

Task Force supervisor around this time, the supervisor told him

that Rahim intended to attack law enforcement that day and must be

4 Doe 2 initially filed a motion to dismiss. The district court denied this motion without prejudice to Doe 2's ability to advance the same legal arguments in a motion for summary judgment, which Doe 2 subsequently filed. The United States, substituted as a defendant for Doe 1 as to the state law claims, also moved for summary judgment as to these claims. 5 The Task Force had information that Rahim and his coconspirators planned to behead an American citizen in New York at the behest of an ISIL militant. The Task Force learned that Rahim ordered three large knives over the internet and that these knives were delivered to his home. The FBI intercepted and x- rayed one of the deliveries to confirm that it contained a knife.

- 11 - prevented from boarding public transportation. Doe 2 requested

backup but wanted to ensure that uniformed officers stayed back

from the immediate area given Rahim's intentions to harm law

enforcement.

As to the confrontation itself, officers Doe 1 and Doe

2 stated that, when approached, Rahim drew a large knife and

wielded it in an aggressive manner while advancing on the officers.

They asserted that Rahim was continuously non-compliant with

commands to drop the knife, that his facial expression evinced an

intent to do harm, that he was within the twenty-one-foot danger

zone within which an assailant armed with a knife can strike before

officers have time to react, and that they believed Rahim to pose

an immediate deadly threat to themselves and others. In

particular, Doe 2 feared that, as one of the other officers

retreated toward the curb, she might trip backward and become

particularly vulnerable to a knife attack. The three other Task

Force members gave essentially the same account.

In addition to these sworn statements, the government

offered a report prepared by the Suffolk County District Attorney

(the "D.A. Report") concluding that the officers acted "reasonably

and lawfully,"6 a recording and transcript of Rahim's phone call

6 We note that this is the unusual case where the facts have been previously examined in two government investigations (an FBI investigation and the D.A. Report), both of which considered

- 12 - with Wright, a recording and transcript of Rahim's phone call to

his brother, a photograph of a knife recovered from the scene, and

security-camera video of the incident. The video shows Rahim

advancing on the officers but is too blurry to identify what was

in Rahim's hands.

In opposition to the government's motions for summary

judgment, the Estate did not rely solely on its amended complaint.

Rather, it submitted its own set of documents for consideration.7

Chief among these were transcripts of five witness interviews

conducted by law enforcement in the days following the incident.

Four of these witnesses were civilians; one was an off-duty police

officer. The government states that it is not aware of any

additional witnesses.

The witness interview transcripts submitted by the

Estate in opposition to summary judgment stated the following.

Witness A is a ten-year-old child who was sleeping, heard gunshots,

and looked out the window and saw someone lying on the ground.

Witness B is an office worker in the area who saw police approach

Rahim and command him to put his hands up before drawing their

weapons. Witness B saw Rahim advance on the officers and saw the

sworn testimony among other evidence. The D.A. Report was made available to the Estate before the Estate filed its complaint. 7 These materials had either been voluntarily provided to the Estate or acquired through separate litigation under a state freedom of information act.

- 13 - officers back away for around seventy feet until they were at the

edge of the parking lot. Witness B does not have good eyesight

and did not see if Rahim had something in his hands. Witness B

saw the officers toss something to the side after Rahim went down

and saw an officer standing over this object. Witness C is a

worker at a nearby labor yard who was walking into a Dunkin' near

the CVS. Witness C heard a shot and saw an officer backing away

and looking fearful but did not see who the officer fired at before

Witness C took cover. Witness C later saw Rahim on the ground and

did not see anything in his hands. Witness D is a local office

worker who saw Rahim advance on the officers across the parking

lot but could not see Rahim's hands. Witness D saw the officers

throw something to the side after Rahim went down and stand over

this object. Witness E is an off-duty police officer who was

sitting in traffic on Washington Street. Witness E saw a group of

individuals in the CVS parking lot but could not see specific

movements or Rahim's hands.

In addition to transcripts of these witness interviews,

the Estate also offered a transcript of the call to police dispatch

(described supra) and various documents relating to the recovered

knife and knife sheath, one of which stated that latent prints

were not found on the sheath.

Finally, the Estate submitted an affidavit pursuant to

Federal Rule of Civil Procedure 56(d) asserting that summary

- 14 - judgment was premature because it had not yet had an opportunity

to depose the officers, witnesses, and Task Force supervisors and

because it did not have access to FBI use-of-force policies,

unredacted versions of the witness transcripts and dispatch call,

or forensic analysis of the knife recovered at the scene.

The district court heard argument on the summary

judgment motions on May 4, 2020. The court concluded that the

Estate had likely not demonstrated a genuine issue of material

fact because, inter alia, the witness statements relied on by the

Estate did not contradict the officers' sworn statements. The

court also expressed skepticism that the Estate had made a case

for discovery under Rule 56(d). But the court sua sponte granted

the Estate a "second go-round" on the Rule 56(d) affidavit,

ordering the Estate to be "very, very clear" as to the specific

pieces of evidence that could overcome the qualified immunity

defense.

On May 22, 2020, the Estate submitted its supplemental

Rule 56(d) affidavit. The only new assertion offered in this

affidavit was that the Estate should have the opportunity to depose

the civilian witnesses to confirm "whether those witnesses

observed Mr. Rahim to have a knife."

The government responded that this supplemental

affidavit fell well short of the standard for granting relief under

Rule 56(d). The government pointed out that, because the civilian

- 15 - witnesses' statements did not contradict the officers' sworn

statements, the Estate's request for discovery relied on

speculation that the civilian witnesses would disavow their prior

statements.

On December 2, 2020, the district court denied the

summary judgment motions without prejudice to renewal after

limited discovery. Est. of Rahim v. United States,

, 122 (D. Mass. 2020). The court began by excluding the

sworn statements of Doe 1, Doe 2, and the other three Task Force

officers from consideration, reasoning that these statements were

inadmissible at summary judgment because the officers had not been

deposed.

. The court also excluded the D.A. Report.

. Even so, the court found that the officers would

be entitled to summary judgment "[i]f [it] were to consider only

the moment of the shooting."

.

But the court denied summary judgment and authorized

discovery on the theory that the proper focus was not just on the

encounter itself but on the information possessed by the officers

and their "plans, actions, observations, and means available to

respond" in the lead-up to the encounter.

The court also

found that it could not "fairly rule" on the qualified immunity

- 16 - defense because the facts were "insufficient to determine exactly

what the particular conduct was."

.8

Doe 1 and Doe 2 filed interlocutory appeals from the

district court's denial of qualified immunity.

II.

We review a district court's denial of summary judgment

on qualified immunity grounds de novo, Conlogue v. Hamilton,

(1st Cir. 2018), viewing the facts in the light most

favorable to the nonmoving party,

.9

"The doctrine of qualified immunity shields officers

from civil liability so long as their conduct 'does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.'" City of Tahlequah v. Bond,

, 11 (2021) (per curiam) (quoting Pearson v. Callahan,

(2009)). It protects "all but the plainly

incompetent or those who knowingly violate the law."

(quoting

District of Columbia v. Wesby,

(2018)). Under

8 The district court also found that the defendants were not entitled to summary judgment on the Estate's state law claims. See id. at 120-22. That aspect of the ruling is not at issue. 9 No party contests the existence of appellate jurisdiction, and correctly so. There is no dispute of material fact as to whether the officers are entitled to immunity, as explained above. See Valdizán v. Rivera-Hernandez,

(1st Cir. 2006) ("[W]e remain free to examine, on an interlocutory appeal, whether [a] fact makes any cognizable legal difference.").

- 17 - the familiar two-prong framework, courts ask (1) whether the

defendant violated the plaintiff's constitutional rights and (2)

whether the right at issue was "clearly established" at the time

of the alleged violation. Conlogue,

. The prongs

need not be addressed in order, and an officer may be entitled to

immunity based on either prong.

The "clearly established" prong itself comprises two

inquiries.

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."

The plaintiff must also "show that an

objectively reasonable officer would have known that his conduct

violated the law."

This latter requirement provides

"breathing room" to officers -- who are often called on to respond

to dangerous, rapidly evolving situations -- by affording them

immunity even when they make reasonable mistakes about the

lawfulness of their conduct.

The plaintiff's burden to

demonstrate that the law was clearly established is thus "a heavy

burden indeed." Lachance v. Town of Charlton,

(1st Cir. 2021) (quoting Mitchell v. Miller,

(1st

Cir. 2015)).

We hold that the officers are entitled to qualified

immunity under each aspect of the "clearly established" prong of

the defense. First, we hold that the officers are entitled to

- 18 - qualified immunity because the Estate has not identified any

authority that would put the officers on notice that their actions

were unlawful. Second, we hold independently that the officers

are entitled to qualified immunity because an objectively

reasonable officer facing the same fraught situation as Doe 1 and

Doe 2 would not have known that the challenged conduct violated

the law. And the officers are entitled to qualified immunity

whether the focus is on the thirty-second fatal encounter or the

fatal encounter plus the officers' actions in the hour beforehand.

A.

The district court found that consideration of the

"clearly established" prong of the qualified immunity defense was

premature before discovery. See Est. of Rahim, 506 F. Supp. 3d at

120. We deem this inconsistent with the Supreme Court's command

to "resolv[e] immunity questions at the earliest possible stage in

litigation." Pearson,

(quoting Hunter v. Bryant,

(1991) (per curiam)). Indeed, "the 'driving

force' behind creation of the qualified immunity doctrine was a

desire to ensure that '"insubstantial claims" against government

officials [will] be resolved prior to discovery.'"

(alteration in original) (quoting Anderson v. Creighton,

, 640 n.2 (1987)). Even where certain facts are disputed,

courts must assess whether a plaintiff's allegations -- or here,

the Estate's allegations as modified by the current undisputed

- 19 - evidence in the summary judgment record -- make out a claim

sufficient to overcome qualified immunity before denying a motion

for summary judgment and authorizing discovery. See Anderson,

n.6.

The district court correctly found, contrary to the

argument presented by the dissent,10 that if it "were to consider

only the moment of the shooting, [the officers] would be correct

that they have met their burden for [the Estate] to respond and

10 The dissent cites Estate of Todashev v. United States,

(11th Cir. 2020) (per curiam), an unpublished, out-of-circuit case not relied on by the Estate where the court remanded for additional discovery prior to summary judgment. See id. at 455. The officers could not have had notice of Todashev, as that case was decided five years after the events at issue. Todashev, on its facts, is also plainly distinguishable and would not support discovery here. In Todashev, the existing record evidence was inconsistent and the fact that Todashev was shot multiple times in the back suggested that he may have been fleeing rather than advancing on the officers. See id. at 448. The Todashev plaintiff sought discovery not on a speculative, unsupported theory of the encounter but on a request for reports and expert testimony to buttress the conclusion that Todashev was attempting to flee from the officers. See id. at 451-55. Here, in contrast, the Estate's theory that Rahim may have been unarmed lacks a basis in the record. Harbert International, Inc. v. James,

(11th Cir. 1998), cited by the Todashev court, is instructive. There, the Eleventh Circuit found that a district court did not abuse its discretion in denying additional discovery in a qualified immunity case where, based on the evidence before the court including affidavits from the defendants, it was unlikely that further discovery would establish that the defendants violated clearly established law.

. Harbert supports our conclusion here that additional discovery would not change the outcome of the summary judgment analysis.

- 20 - that no new evidence would likely change the outcome." Est. of

Rahim, 506 F. Supp. 3d at 118.11

11 This finding by the district court is consistent with the requirements of Rule 56(d), and that should have ended the matter. "Rule 56(d) does not condone a fishing expedition where a plaintiff merely hopes to uncover some possible evidence of unlawful conduct." Johnson v. Moody,

(8th Cir. 2018) (quoting Toben v. Bridgestone Retail Operations, LLC,

(8th Cir. 2014)); see also Vargas-Ruiz v. Golden Arch Dev., Inc.,

(1st Cir. 2004) ("[A plaintiff] must offer the trial court more than optimistic surmise."). To obtain additional discovery, a party must show, inter alia, "a plausible basis for believing that the specified facts probably exist." Pina v. Childs.' Place,

(1st Cir. 2014); see also Rivera-Torres v. Rey-Hernández,

, 12 (1st Cir. 2007) (finding that this requirement was not satisfied); Doe v. Brown Univ.,

(1st Cir. 2019) (similar). And in qualified immunity cases, the Rule 56(d) analysis is conducted "with a thumb on the side of the scale weighing against discovery." Harbert,

; see also Garner v. City of Ozark,

(11th Cir. 2014) (per curiam) (applying this principle and finding that further discovery was not warranted); Olaniyi v. District of Columbia,

, 101 n.26 (D.D.C. 2011) (same). The officers' five sworn statements are detailed, consistent, and uniformly state that Rahim had a large knife in his hand as he advanced on the officers. The officers described this knife as "15 to 18 inches," a "large . . . military knife," "a dagger looking knife, with a large, straight blade," "approximately 2 feet long," and "a large black knife similar to a Bowie knife." And undisputed record evidence establishes that Rahim advanced on the officers and they retreated, that he refused to drop what he was holding despite repeated commands, that he taunted the officers to drop their weapons instead, and that the officers immediately secured the object Rahim had in his hands once he went down. On this record, it is not plausible that any of the officers will probably testify in a deposition that Rahim was unarmed. And in any event, the focus required by law must be on what an objective officer would have perceived leading up to and in the split-second decision to shoot.

- 21 - We also note that the sworn statements submitted by the

officers in support of their motions for summary judgment should

have been admitted. The Estate never argued that the statements

were inadmissible. To the contrary, the Estate accepted as

undisputed many facts based on these statements and even cited the

statements in support of its opposition to summary judgment. The

motions hearing colloquy reflects an understanding -- shared by

both parties and by the court -- that the statements were

admissible. And while the Estate sought to depose the officers,

this was a request for discovery, not a challenge to the

admissibility of the statements already in the record.

Nor do the Federal Rules of Civil Procedure condition

the admissibility of sworn statements at summary judgment on a

prior deposition. To be admissible at summary judgment, an

affidavit or declaration "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." Fed. R. Civ. P. 56(c)(4) (emphasis added); see also id.

56(c)(2) ("A party may object that the material cited to support

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

admissible in evidence." (emphasis added)). "[T]he standard is

not whether the evidence at the summary judgment stage would be

admissible at trial -- it is whether it could be presented at trial

- 22 - in an admissible form." Gannon Int'l, Ltd. v. Blocker,

(8th Cir. 2012).

However, the government does not rely on these

statements in its appeal, and so we do not consider them. Our

holding does not rest on the exclusion of the statements but rather

on the merits of the district court's denial of qualified immunity.

The officers are entitled to qualified immunity on the

current record for the reasons we now discuss.

B.

We hold first that the Estate has failed to meet its

burden to identify controlling authority or a consensus of

persuasive authority sufficient to put the officers on notice that

their conduct violated the law. See Conlogue,

;

see also Rivera-Corraliza v. Morales,

(1st

Cir. 2015) (noting that plaintiffs' failure to identify such

authority is fatal to their claims); MacDonald v. Town of Eastham,

(1st Cir. 2014) (finding officers entitled to

qualified immunity based on this element of the defense). While

a case "directly on point" is not required, "existing precedent

must have placed the statutory or constitutional question beyond

debate." Kisela v. Hughes,

(2018) (per

curiam) (quoting White v. Pauly,

(2017) (per

curiam)). And "specificity is 'especially important in the Fourth

Amendment context,' where it is 'sometimes difficult for an officer

- 23 - to determine how the relevant legal doctrine, here excessive force,

will apply to the factual situation the officer confronts.'" Bond,

142 S. Ct. at 11-12 (quoting Mullenix v. Luna,

(2015) (per curiam)).

The Estate has not come close to meeting its burden of

identifying controlling authority or a consensus of persuasive

authority. The Estate did not advance any argument on this point,

much less identify sufficiently analogous precedents. It did not

do so despite the fact that the government pointed out this absence

of argument both in the district court and in its opening briefs.

The fact that the Estate cited -- in the district court,

not in its appellate briefing -- to a single, twenty-one-year-old,

out-of-circuit case does not satisfy its burden for a number of

reasons beyond the obvious reason of waiver by the Estate. That

case, Deorle v. Rutherford,

(9th Cir. 2001), is

insufficient as a matter of law to meet the Estate's burden: it is

neither controlling authority nor a "consensus" of persuasive

authority. Conlogue,

. Deorle is also inapposite

because it has been superseded by the many later Supreme Court and

circuit precedents we discuss below.

In any event, Deorle is plainly distinguishable. It

involved an unarmed, mentally disturbed man on his own property

who had "complied with the police officers' instructions," had not

received warnings prior to the use of force, and "had discarded

- 24 - his potential weapons whenever asked to do so." Deorle,

; see also

. And the Supreme Court has twice

rejected the broad reading of Deorle favored by the dissent. See

Kisela,

("This Court has already instructed the

Court of Appeals not to read its decision in [Deorle] too broadly

in deciding whether a new set of facts is governed by clearly

established law."); City & Cnty. of S.F. v. Sheehan,

(2015) (finding that the differences from Deorle "leap[t] from

the page" because, inter alia, Sheehan was "dangerous" and

"recalcitrant" while Deorle was not).

C.

We hold independently that the officers are entitled to

qualified immunity because objectively reasonable officers in

their position would not have understood their actions to violate

the law. See Conlogue,

; see also, e.g., Justiniano

v. Walker,

(1st Cir. 2021) (finding officer

entitled to qualified immunity on this basis); Mlodzinski v. Lewis,

(1st Cir. 2011) (same); Wilson v. City of Boston,

(1st Cir. 2005) (same). We hold further that

a reasonable officer in this situation would have understood Rahim

to have a lethal knife in his hands. We also hold that a reasonable

officer, on the undisputed facts, would have understood Rahim's

actions to show that he had every intention to use this knife to

- 25 - kill the officers and, if they were unsuccessful in stopping him,

to kill other people.

In the case law concerning the reasonableness of

officers' use of force, the following factors among others have

been thought to be relevant. Each is present here.

• Whether a reasonable officer on the scene could believe

that the suspect "pose[d] an immediate threat to police

officers or civilians." Fagre v. Parks,

, 23-

24 (1st Cir. 2021) (quoting Conlogue,

);

see also Kisela,

. Here, an objectively

reasonable officer would have such a belief based on both

his or her knowledge going into the encounter that Rahim

was armed and planned to carry out an imminent attack12 and

12 The Estate conceded this point. At the motions hearing, counsel for the Estate argued: At what point did [the officers] believe there was an imminent threat? Was it at the point they approached him? Was it at the point all morning long? Was that already a preconceived notion in the officers' heads when they stopped him and immediately drew their weapons? I understand certainly them being able to draw their weapons and the discretion they have in how they would have conducted the stop. But immediately going to pull the weapons and him having a knife and the officers being aware, frankly, that he had a knife, was it reasonable for the officers to perceive this as an imminent threat when for a period of two hours nothing was done during that time and essentially approaching him at

- 26 - on Rahim's aggressive and escalatory actions during the

encounter itself.

• Whether a warning was given before the use of force and

whether the suspect complied with this command. See, e.g.,

Kisela,

; Escalera-Salgado v. United

States,

(1st Cir. 2018); Conlogue,

; McKenney v. Mangino,

(1st Cir.

2017). Here, the officers gave at least nine total

commands for Rahim to put his hands up and/or to drop what

he was holding. Rahim did not comply.

• Whether the suspect was armed -- with a gun, knife, or

otherwise -- at the time of the encounter or whether the

officers believed the suspect to be armed. See, e.g.,

Kisela,

; Sheehan,

;

that time and saying, [w]ell, there was a knife, and immediately that there's an imminent threat?

(Emphasis added.) The Estate advanced a similar theory in its district court briefing. As such, the Estate is now estopped from taking a contrary position. See Beddall v. State St. Bank & Tr. Co.,

(1st Cir. 1998) ("We generally will not permit litigants to assert contradictory positions at different stages of a lawsuit in order to advance their interests."). The Estate also conceded this point by failing to meaningfully respond to the government's argument that the statements in the Estate's complaint represent admissions that the officers reasonably believed Rahim to be armed. See Thompson v. Barr,

, 490 n.11 (1st Cir. 2020) (finding that an appellee's failure to address conspicuous, nonfrivolous arguments in an appellant's opening brief can constitute waiver).

- 27 - Fagre,

; Escalera-Salgado,

;

Conlogue,

. Here, the officers believed

that Rahim was armed with a knife in his hands at the time

of the encounter. They repeatedly commanded him to drop

what he was holding. Rather than contest that he was

holding a weapon, Rahim responded by taunting the officers

to drop their weapons instead.

• The speed with which officers had to respond to unfolding

events, both in terms of the overall confrontation and the

decision to employ force. See, e.g., Kisela,

; Sheehan,

; Graham v. Connor,

(1989); Conlogue,

;

McKenney,

. Here, the entire encounter

unfolded over about thirty seconds and the officers'

decision to shoot had to be made within seconds when,

despite their commands to drop what was in his hands, Rahim

kept advancing with what they had every reason to believe

was a weapon.

• Whether the suspect was advancing on the officers or

otherwise escalating the situation. See, e.g., Sheehan,

; Conlogue,

. Rahim was

doing both. He advanced on the officers while taunting

them (at least eight times) to drop their weapons.

- 28 - • The suspect's physical proximity to the officers at the

time of the use of force. See, e.g., Kisela,

; Sheehan,

; McKenney,

. Rahim was within range to seriously injure the

officers at the time they fired.

• Whether multiple officers simultaneously reached the

conclusion that a use of force was required. See Conlogue,

. Doe 1 and Doe 2 did so here.

• The nature of the underlying crime. See Rivas-Villegas v.

Cortesluna,

(2021) (per curiam) (citing

Graham,

). Here, Rahim had stated his

intention to kill someone that day or the next, and the

officers had every reason to believe that a lethal

terrorist attack was imminent.

Each one of these considerations supports the grant of

qualified immunity here on the undisputed facts. An objectively

reasonable officer would have understood that Rahim posed a lethal

threat to them. They would also have understood that Rahim had to

be apprehended and stopped before he could commit a "random" act

of violence at the bus stop, on the bus, or later in the day.

The Supreme Court has repeatedly found that officers

acting under such circumstances do not violate clearly established

law. Two of the Court's recent grants of qualified immunity are

illustrative. In City of Tahlequah v. Bond, officers shot and

- 29 - killed a suspect who refused repeated commands to drop a hammer

and whose movements suggested that he was preparing to throw the

hammer or charge at the officers.

. The Court

found that under such circumstances the officers "plainly did not

violate any clearly established law" and thus were entitled to

qualified immunity.

; see also

. And in Kisela

v. Hughes, officers shot a knife-armed woman who had been seen

acting erratically, had approached a civilian, and who refused

repeated commands to drop the knife over the course of an encounter

lasting less than a minute. 138 S. Ct. at 1151. The Court found

that this was "far from an obvious case in which any competent

officer would have known that shooting [the suspect] to protect

[the civilian] would violate the Fourth Amendment." Id. at 1153;

see also, e.g., Sheehan,

(finding that officers'

use of force against a knife-armed individual who "kept coming" at

them was reasonable).

Precedents from our circuit and others similarly

recognize that officers are entitled to qualified immunity under

such circumstances. In Escalera-Salgado v. United States, for

example, officers executed a search warrant at the residence of a

known drug trafficker and gang leader in Puerto Rico. 911 F.3d at

- 30 - 39.13 They believed the suspect had guns in the house.

As

the suspect emerged from the bedroom, an officer yelled "police"

and commanded him to show his hands and stay still.

The

suspect ignored these commands and reached for his waistband, at

which point two officers fired.

We held that these officers

were entitled to qualified immunity on the "clearly established"

prong of the defense because the suspect "failed to compare his

shooting to the facts of a single case in which an officer's use

of force was held to be constitutionally excessive" and the

officers' conduct was not "self-evidently unlawful." Id. at 41.

We found that, despite not actually seeing a weapon, the officers

had "ample reason to suspect danger" based on, inter alia, their

belief that the suspect was armed, the suspect's failure to comply

with police commands, and the suspect's behavior suggesting that

he was reaching for a weapon. Id. at 41-42.

In Conlogue v. Hamilton, we considered a claim arising

out of an officer's use of deadly force at the climax of a three-

13We note that Escalera-Salgado arose in the context of the Federal Tort Claims Act (FTCA) in Puerto Rico rather than as a Bivens claim.

. The court in that case, however, clarified the connection between the FTCA in Puerto Rico and Bivens claims, stating: "The district court's qualified immunity analysis relied upon our circuit's oft-repeated assumption 'that Puerto Rico tort law would not impose personal liability' in tort actions 'where the officers would be protected in Bivens claims by qualified immunity.'"

(quoting Solis-Alarcón v. United States,

(1st Cir. 2011)). Therefore, its reasoning is applicable here.

- 31 - and-a-half-hour standoff with an armed, suicidal individual in

LaGrange, Maine.

. Officers responded to a

call for help from the suspect's wife, who reported that the

suspect was skilled with guns and was threatening to take his own

life.

. When the officers arrived, they found the

suspect sitting outside his car in front of a restaurant and across

the street from a private residence.

. He had a gun

to his head.

. The suspect remained in this position

for an hour and twenty minutes.

The suspect then began pacing around with the gun in his

hand.

He seemed to be assessing the scene and gathering

strength, and shouted obscenities at the officers in response to

their attempts to communicate with him.

At this point, the

suspect ceased to be a threat only to himself and began to pose a

threat to the officers on the scene. See

, 158 n.4.

The officers repeatedly asked him to put down his gun.

. He refused to comply, retrieved a knife from his car, and

moved toward the officers.

He then began to alternate

pointing the gun at his own head and toward the officers.

The officers "forcefully" commanded the suspect to "put the gun

down right now!"

. He refused.

. At

that point, the suspect was within easy firing range of the

officers.

. After the suspect continued to refuse to

drop his weapon, an officer fired.

. In affirming the

- 32 - district court's grant of summary judgment based on qualified

immunity, we held that an objectively reasonable officer in the

defendant officer's position would not have thought it was a

violation of the law to use deadly force under these circumstances.

. We reasoned that the defendant officer was "keenly

aware" of the threat posed by the suspect and was also aware of

the suspect's continued escalation of the situation and his refusal

to comply with repeated commands to drop his weapon.

.

And in Sigman v. Town of Chapel Hill,

(4th

Cir. 1998), officers responded to a report of a domestic dispute

involving an individual armed with a knife.

. The

suspect emerged from the house, refused repeated commands to drop

what he was holding, and advanced on the officers while telling

them to "[g]o ahead and shoot me."

. When the suspect

was within ten to fifteen feet of the officers, one of them fired.

A large knife was recovered from the scene.

. On

these facts, the Fourth Circuit found that the officer was entitled

to qualified immunity:

Where an officer is faced with a split-second decision in the context of a volatile atmosphere about how to restrain a suspect who is dangerous, who has been recently -- and potentially still is -- armed, and who is coming towards the officer despite officers' commands to halt, we conclude that the officer's decision to fire is not unreasonable. Accordingly, we reject the

- 33 - argument that a factual dispute about whether Sigman still had his knife at the moment of shooting is material to the question of whether Officer Riddle is entitled to the protections of qualified immunity in the particular circumstances of this case.

Similarly, in the case before us the officers reasonably

believed that Rahim was a terrorist suspect, that he was armed

with a military-style knife and -- from an objective perspective

based on intelligence -- intended to kill, and that he posed an

imminent threat both to law enforcement and to members of the

public. After the Task Force intercepted Rahim's 5:18 a.m. call

on the morning of June 2, 2015, the officers were operating under

substantial time pressure to stop Rahim before he could board

public transportation. When they approached him in the CVS parking

lot shortly after 7:00 a.m., Rahim refused repeated commands to

put his hands up. Instead, he advanced on the officers with

something in his hands. The officers retreated across the length

of the parking lot while repeatedly commanding Rahim to "drop it!"

Rahim refused and taunted them to drop their weapons. The officers

did not fire until Rahim had refused at least nine total commands,

was within twenty-five feet of the officers, and had backed them

up against the edge of the parking lot. At this point, two officers

made the split-second decision to fire. The entire encounter

lasted around thirty seconds.

- 34 - Under these circumstances, an objectively reasonable

officer would not have understood the challenged conduct to violate

the law. See Conlogue,

. An objectively reasonable

officer would have understood Rahim to be dangerous, armed with a

military-style knife, and preparing to conduct a terrorist attack,

an extremely serious crime. The encounter was precisely the sort

of "tense, uncertain and rapidly evolving" situation where

officers are forced to make split-second decisions for their safety

and the safety of others. Graham,

. The officers

gave clear and repeated warnings before employing deadly force,

warnings which Rahim ignored. They did not fire until Rahim had

advanced and was close enough to them to use a knife. And the

fact that two officers simultaneously made the split-second

decision to fire supports the objective reasonableness of their

decision.

The officers had a more-than-reasonable basis for

believing Rahim was armed with a military-style knife both before

and during the encounter. The officers also had a more-than-

reasonable basis to believe that Rahim had left his apartment that

morning with an intent to kill a "boy[] in blue" and/or other

people. There is no dispute Rahim said exactly those things.

D.

The officers are entitled to qualified immunity even if

we consider their actions between learning of Rahim's phone call

- 35 - to Wright at some point after 6:00 a.m. and approaching him in the

CVS parking lot shortly after 7:00 a.m. The Estate suggests that,

after learning that Rahim was an imminent threat, the officers

should have apprehended him sooner and/or acquired a warrant. But

the officers were operating under significant time pressure during

this period, with at most an hour to develop a plan, call for

backup, approach Rahim, and stop him from boarding public

transportation. And the Estate's only theory, that this pre-

confrontation conduct may render the officers' later actions

unreasonable by bearing on their "intent" in approaching Rahim, is

not viable because the excessive-force inquiry is undertaken

"without regard to [officers'] underlying intent or motivation."

Graham,

. The Estate has not otherwise asserted a

claim based on the officers' conduct during this earlier period.

And the Estate has pointed to no precedent, and we have

found none, establishing that the officers' pre-confrontation

conduct violates clearly established law.14 Nor has the Estate

14 We disagree with the district court's interpretation of our precedents on the relevance of officers' pre-seizure actions. We have not adopted the broad rule that officers have a duty to avoid creating situations which increase the risk that deadly force may be used. See Napier v. Town of Windham,

(1st Cir. 1999); St. Hilaire v. City of Laconia,

(1st Cir. 1995). And while we have recognized that pre-seizure conduct may be relevant in the reasonableness analysis, we have done so in cases where there is a much closer connection between such conduct and the ultimate seizure. Cf. Young v. City of Providence ex rel. Napolitano,

, 22 n.13 (1st Cir. 2005)

- 36 - shown that an objectively reasonable officer in Doe 1 or Doe 2's

position would understand such conduct to violate the law. The

officers are entitled to qualified immunity as a matter of law.

III.

Reversed and remanded with instructions to enter summary

judgment for officers Doe 1 and

.

-Dissenting Opinion Follows-

(distinguishing Napier as "not hold[ing] that events immediately leading up to a shooting cannot be considered as part of the totality of the circumstances along with the precise instant surrounding a shooting" (emphasis added)).

- 37 - BARRON, Chief Judge, dissenting. The officers who

fatally shot Usaamah Abdullah Rahim seek summary judgment based on

qualified immunity. They do so, however, even before the

plaintiff, Rahim's Estate, has had a chance to question them about

what they knew at the time that they fired on Rahim. Thus, there

is good reason to be concerned that the officers' request is

premature.

To be sure, the Estate appears to accept that the record

is sufficiently developed to establish conclusively that the

officers had been reliably informed by the time that they

confronted Rahim that a suspect matching his description was on

the loose who had threatened to behead someone and was "armed with

a knife." The Estate also appears to accept that the record is

sufficiently developed to establish conclusively that the

officers, upon confronting Rahim, commanded that he drop whatever

he may have had in his hands and that he refused to comply.

But, to me, the key question is whether the record also

is sufficiently developed to establish conclusively that the

officers had information at the time that they fired on Rahim that

reasonably led them to think that he was advancing toward them

while holding in hand what they thought was a deadly weapon or

that in so advancing he was at least reaching for one. For, if

the record in even its present undeveloped state is also conclusive

in that respect, then the officers are entitled to summary judgment

- 38 - based on qualified immunity, even accepting the District Court's

determination that the Estate's questioning of the officers might

produce testimony that would give rise to a factual dispute about

whether they could have taken steps to defuse the situation. See

Est. of Rahim v. United States,

, 118-19 (D.

Mass. 2020).

I reach that conclusion because, in that event, the

summary judgment record conclusively would show that the officers

were faced with a split-second decision about how best to address

the immediate threat that Rahim posed when they fired on him. And,

it would then follow, the Estate would not be able to show that

the officers' use of force to subdue Rahim violated clearly

established law, notwithstanding that the Estate might be able to

show through questioning of the officers that they could have done

things to prevent that climactic moment from occurring. See

Pearson v. Callahan,

(2009); Kisela v. Hughes,

(2018); see also, e.g., Sigman v. Town of

Chapel Hill,

(4th Cir. 1998).

The Estate contends, however, that the record is not

clear in conclusively establishing that the officers reasonably

thought that Rahim was holding in hand or reaching for a deadly

weapon when they fired on him. And, I agree with the Estate on

that score. Thus, I conclude that the summary judgment record --

at least in its present state -- permits a reasonable juror to

- 39 - find that the officers' use of deadly force against Rahim was

excessive under clearly established law. See Williams v. City of

Burlington,

(8th Cir. 2022) (noting

unanimously in denying qualified immunity at the summary judgment

stage that, despite a response to a request for admissions in which

"the estate responded that [the officer] had a reasonable belief

that [the decedent] had a gun when [the officer] used deadly

force," it would be improper to "construe the response against the

estate" when discovery had uncovered other "evidence about whether

[the decedent] had a gun" (citing Tolan v. Cotton,

(2014) (per curiam))); cf. Est. of Todashev v. United States,

, 453-54 (11th Cir. 2020) (per curiam) (holding

that the district court abused its discretion in denying a Rule

56(d) request to conduct discovery that the plaintiff -- the estate

of a suspected terrorist shot by an FBI officer following

questioning at his residence -- argued would create a "dispute of

material fact as to whether [the officer]'s use of deadly force

was objectively reasonable" prior to ruling on the officer's

summary judgment motion).

I.

To conclude otherwise, the majority first relies on the

Estate's alleged failure to "meet[] its burden" to identify

"sufficiently analogous precedents" to show that the use of deadly

force against Rahim violated clearly established law. But, a

- 40 - plaintiff seeking to overcome a defense of qualified immunity need

not identify an identical case to fend off that defense, Hope v.

Pelzer,

(2002), and, when prompted below, the

Estate offered authority to show that the use of deadly force by

the officers would have been excessive if in using such force they

did not understand Rahim to have had a deadly weapon in hand or to

have been reaching for one, see Deorle v. Rutherford,

(9th Cir. 2001) (reviewing case law and explaining

that shooting at a person "walk[ing] in the direction of an officer

at a steady gait with a can or bottle in his hand is clearly not

objectively reasonable").

The majority does not identify a single case that

indicates otherwise. Indeed, the case that it identifies that

appears the most analogous, Sigman v. Town of Chapel Hill,

, if anything, favors the Estate. There, a Fourth

Circuit panel granted summary judgment based on qualified immunity

over a dissenting opinion to an officer who fatally shot a domestic

violence suspect. The suspect in that case, after a "highly

volatile" encounter in which he had swung a "chef's knife" and

"thr[own] objects at [the officer] through [a] broken window,"

stepped outside of the house covered in blood, ignored commands to

stand down, and began advancing on the officer.

. But, while it is true that the estate there had argued that

the officer was not entitled to immunity on the ground that it was

- 41 - not clear that the suspect had been holding a knife when he was

shot, the majority concluded otherwise only because it determined

based on the officer's deposition testimony -- and that of five

other officers on the scene -- about what they had observed that

it was indisputable that the officer had "acted on the perception

that Sigman had a knife in his hand."

(emphasis

added).15

The majority may mean to be arguing that the Estate did

not identify precedent to show that the officers' conduct would

have violated clearly established law insofar as the officers did

reasonably believe that Rahim was holding a knife in his hand at

the key moment. But, that contention depends on an underlying

contention about what the present state of the undeveloped record

conclusively shows, which turns out to be the basis for the

majority's second rationale for ruling as it does. I thus now

turn to that rationale.

15 The dissent in Sigman took issue with the majority's conclusion that the plaintiff had failed to create a genuine dispute as to whether the officer reasonably thought that the target was holding a knife at the moment the officer shot him, due to witness affidavits that contradicted the officer's deposition testimony.

(Michael, J., dissenting). The dissent concluded that it was improper, in light of that evidence, for the majority to credit the officer's account, and that it was instead necessary for a factfinder to determine "what was actually happening during the event . . . to evaluate the reasonableness of [the officer]'s perceptions and actions."

.

- 42 - II.

In this second rationale, the majority asserts that "it

is not plausible that any of the officers will probably testify in

a deposition that Rahim was unarmed."16 This assertion does not

help the majority if by "unarmed" the majority is agreeing with

the Estate that the record at present conclusively shows that Rahim

had a weapon on his person, though not in his hand, and that he

was not reaching for that weapon. As I have just explained, the

use of deadly force against Rahim by officers who did not think

that he was holding a deadly weapon or reaching for one when they

fired on him would be excessive under clearly established law.

But, the majority may mean to be contending that it is

not plausible that the officers "probably" would provide testimony

16 After the officers filed their pre-discovery summary judgment motion in the District Court, counsel for the Estate invoked Rule 56(d), which by its terms permits a non-moving party to seek deferral or denial of a summary judgment motion upon "show[ing] by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." Fed. R. Civ. P. 56(d). As this Court has explained, so long as there is good cause for the failure to discover the relevant facts sooner, "timely" and "authoritative" requests made under this rule should be "liberally grant[ed]" if there is a "plausible basis for believing that the specified facts probably exist," and such facts, if collected, would "influence the outcome of summary judgment." Pina v. Child.'s Place,

(1st Cir. 2014) (citing Simas v. First Citizens' Fed. Credit Union,

, 45 n.4 (1st Cir. 1999)). The Estate in its Rule 56(d) request specifically sought depositions of the officers and other witnesses in order to, among other things, "uncover information contradicting the defendants' version of events," including their alleged "belief that Mr. Rahim was holding a knife" when they shot him.

- 43 - that could give rise to a genuine issue of disputed fact about

whether Rahim was holding a knife in his hand when the officers

shot him, such that we must treat the present record as if it

conclusively establishes that the officers did reasonably think

that Rahim had such a weapon in hand at that key moment. Here,

too, though, I am not persuaded.

There is literally nothing in the record on appeal that

purports to state the officers' own views on that matter, and we

must construe the record as it comes to us in the light most

favorable to the Estate, because the Estate is the non-moving

party. Tolan,

; see also Crawford-El v. Britton,

, 600 n.22 (1998). In addition, qualified immunity

does not protect those who are asserting it from discovery about

the information that they in fact "possessed at the time of [their]

allegedly unlawful conduct" if their possession of that

information would bear on whether the immunity applies. Wood v.

Clemons,

, 929–30 (1st Cir. 1996) (quoting McBride v.

Taylor,

(1st Cir. 1991)); see Anderson v.

Creighton,

, 646 n.6 (1987) ("[I]f the actions [the

defendant] claims he took are different from those the [plaintiffs]

allege (and are actions that a reasonable officer could have

believed lawful), then discovery may be necessary before [the

defendant]'s motion for summary judgment on qualified immunity

grounds can be resolved."); see also Crawford-El,

- 44 - n.14 (citing Anderson,

n.6, and explaining that

neither Harlow v. Fitzgerald,

(1982), "nor subsequent

decisions [of the Supreme Court] create an immunity from all

discovery" (emphasis in original)).

The majority does point to an account of what the

officers say they saw in Rahim's hand that the officers themselves

offered in affidavits. But, the District Court excluded that

account from consideration of the motion for summary judgment

precisely because the Estate had not been given a chance to test

that account through adversarial questioning, Est. of Rahim, 506

F. Supp. 3d at 113-14, and the government, in appealing the

District Court's denial of the motion, does not challenge that

aspect of the District Court's summary judgment ruling.

That appellate waiver aside, it also is not evident that

we have jurisdiction to consider the officers' untested account in

resolving this interlocutory appeal. After all, we must decide

this appeal by taking as given the facts on which the District

Court relied. See McKenney v. Mangino,

(1st Cir.

2017) ("Although the defendant invites us to adopt a spin on the

summary judgment record different from that taken by the district

court, we lack jurisdiction to accept that invitation . . . .").

Finally, we cannot predict how the officers would be

likely to testify if questioned by the party suing them by choosing

to credit their as-yet-untested account. Our adversarial system

- 45 - does not permit us to rely on such a say-so understanding of how

truth is best discovered.

Accordingly, I can see no basis for concluding that it

is probable that no evidence would emerge during discovery that

would permit a reasonable juror to find that the officers thought

that, as Rahim moved towards them, he neither had a deadly weapon

in hand nor was reaching for one that was on his person. Indeed,

the officers themselves -- once subjected to adversarial

questioning -- could provide testimony that would provide support

for just such a finding.

I should add that no precedent is to the contrary to my

conclusion in this regard. The Eleventh Circuit has recognized

that there are limits on permissible discovery in the face of an

assertion of qualified immunity. See Harbert Int'l, Inc. v. James,

(11th Cir. 1998). But, no case supports

effectively preventing a plaintiff from questioning a defendant

about facts critical to the determination of whether qualified

immunity is warranted. See

(explaining that the desired

discovery "would [not] establish either that the defendants acted

outside the scope of their discretionary authority or that they

had violated clearly established law"); Garner v. City of Ozark,

(11th Cir. 2014) (per curiam) (explaining

that there was no showing that the desired expert opinions were

relevant to the qualified immunity defense); see also Olaniyi v.

- 46 - District of Columbia,

, 101 n.26 (D.D.C. 2011)

(relying on Harbert and explaining that the plaintiff had not

identified potential facts that could "overcome the qualified

immunity defense").17

In fact, the Eleventh Circuit has explained that it is

"especially true in a deadly force case, where 'the witness most

likely to contradict the officers' story -- the person shot dead

-- is unable to testify,'" that the inquiry as to whether discovery

under Rule 56(d) is warranted weighs in favor of relief, given

that the relevant evidence and witnesses are "in the control of

the moving party." Est. of Todashev, 815 F. App'x at 453-54 (first

quoting Ingle v. Yelton,

(4th Cir. 2006), and

then McCray v. Md. Dep't of Transp.,

(4th Cir.

2014)). And, like the defendant in Estate of Todashev, the

defendants in this case do

not claim that [they are] entitled to qualified immunity because [their] conduct would not have violated clearly established law under plaintiff's version of the facts. Rather, [they claim] that [they are] entitled to qualified immunity under [their own] version of the facts, based upon evidence that is almost exclusively within [their] control, while simultaneously prohibiting Plaintiff from conducting any discovery that might test or contradict [their] version.

17The same is true of the Eighth Circuit precedent that the majority cites on the issue. See Johnson v. Moody,

(8th Cir. 2018) ("Plaintiffs did not request additional discovery focused on the qualified immunity issue.").

- 47 - Id. at 453 (emphasis and internal quotation omitted)

(distinguishing Harbert,

).

The majority is right that Estate of Todashev is an

unpublished opinion -- and from another circuit to boot. But, I

see little reason to ignore its reasoning. It purports to apply

the precedents of the Eleventh Circuit, and it is the precedents

of that Circuit that the majority itself invokes in support of its

position that no discovery as to what the officers believed was in

Rahim's hand is warranted in this case. Moreover, that ruling

also accords with the reasoning of other circuits, see Flythe v.

District of Columbia,

(D.C. Cir. 2015) (collecting

cases and noting that "courts . . . 'may not simply accept what

may be a self-serving account by the police officer'" (quoting

Scott v. Henrich,

(9th Cir. 1994))), as well as

our own, cf. Asociación de Periodistas de P.R. v. Mueller,

(1st Cir. 2012) (holding that the district court

did not abuse its discretion in partially granting a Rule 56(d)

motion to the extent it "allow[ed] the plaintiffs to depose only

those individuals who had supplied affidavits in support of the

summary judgment motion").

III.

The majority's final rationale is that the Estate has

"conceded" that the officers "[went] into the encounter" with a

reasonable belief "that Rahim was armed and planned to carry out

- 48 - an imminent attack." If the majority means to suggest only that

the Estate has conceded that the officers had been reliably

informed that Rahim had threatened to kill someone and was armed

with a knife (in the sense of having one on his person) that day,

then I cannot disagree. But, that concession would not on its own

permit us to reverse the District Court and order that it grant

summary judgment based on qualified immunity to the officers. The

record as it presently stands still would not conclusively

establish in that circumstance that at the moment that the officers

chose to use deadly force against Rahim they reasonably thought

that he was holding or reaching for a deadly weapon.

Perhaps, then, the majority means that the Estate

conceded -- either below or on appeal -- that the officers did

have information that reasonably led to them to hold the belief

that Rahim had a knife or other deadly weapon in his hand (or even

that he was reaching for one) when they shot him. But I can find

no support in the record for our concluding that the Estate has

made a concession of that kind.

True, the Estate's counsel did contend below that his

client could survive summary judgment even if that was what the

officers thought about what Rahim had in his hand at the key

moment. But, the Estate's counsel also repeatedly argued in the

alternative that further discovery could produce facts that would

call into question whether the officers "believ[ed] [that Rahim]

- 49 - had a knife" and whether that alleged belief was "reasonable."

Indeed, as the majority acknowledges, the Estate filed a Rule 56(d)

affidavit seeking an opportunity to pursue such discovery. And,

the Estate argues on appeal that it "disputes all of the[] facts"

about the incident as presented by the officers, and that,

"[b]ecause there has been no discovery . . . [the Estate] has not

been able to interview or take depositions of any of the officers

. . . [or] any of the civilian witnesses . . . some of whose

accounts differ from those of the officers."18

IV.

Qualified immunity prevents many claims of excessive

force from succeeding precisely because of the in-the-moment

nature of the judgment that officers attempting to subdue suspects

must make. It does not permit courts to credit, though, the

untested accounts that defendants accused of excessive force offer

18 The majority also asserts that the Estate "conceded" that the "officers reasonably believed Rahim to be armed" on appeal "by failing to meaningfully respond to the government's argument that the statements in the Estate's complaint represent admissions that the officers reasonably believed Rahim to be armed." But, as the Estate has made clear to us, the complaint's allegations are caveated in each instance in a way that demonstrates that the Estate is not alleging itself that a particular event took place or that a particular impression was held. Cf. Williams,

. The majority's argument that the Estate is now estopped from taking the position that the officers did not believe Rahim had a knife in hand because such argument is "contrary" to its theory in the District Court is also mistaken. As I have explained, there is no inconsistency, given the alternative grounds for defeating summary judgment the Estate has pressed throughout.

- 50 - when the plaintiff has been denied any chance to test those

accounts.

The Estate pressed below and is pressing to us the

argument that summary judgment must be denied to the officers

because the Estate has not yet had a chance to test their account

of just how much of a threat Rahim posed at the key moment. I am

convinced that it is plausible that such testing would reveal a

genuine factual dispute about whether the officers thought Rahim

had a weapon in hand (or was reaching for one) during their deadly

encounter with him. Accordingly, I respectfully dissent from the

majority's decision to reverse the District Court's denial of the

officers' motion for summary judgment.

- 51 -