RJA Attorney Andy Gambaccini Discusses A Federal Court Decision That Dismissed An Excessive Force Claim Arising Out Of A Fatal Shooting In Massachusetts Lawyers Weekly.
Federal judge tosses suit over police shooting of mentally ill man
Excessive force claim clouded by misfire of beanbag gun
by Pat Murphy – as published in Massachusetts Lawyers Weekly
A federal judge has dismissed an excessive force civil rights claim arising out of an incident in which Newton police fatally shot a mentally disturbed armed robbery suspect who picked up a knife after an officer’s beanbag gun misfired in a failed attempt to subdue the man.
Plaintiffs Robert and Betsy Conlon sued the city and five of its officers after their 28-year-old son, Michael, was shot to death on Jan. 5, 2021.
As alleged in the complaint, police were called when Michael Conlon appeared with a kitchen knife in a candy store next door to the apartment building where he lived. Responding to the report of an armed robbery, officers cornered Conlon in the stairwell of the building outside the door to his apartment.
During the course of a 27-minute standoff, Conlon held the knife to his own neck and threatened to kill himself. Police eventually persuaded Conlon to drop the knife and a fire extinguisher he had grabbed as a potential weapon. Police supervisors at the scene then authorized an officer to use a beanbag gun to disable Conlon so he could be taken into custody.
When the officer pulled the trigger, however, the beanbag gun misfired, emitting an audible “click.” Conlon responded by picking up the knife and advancing toward the officers, at which point police shot him using their sidearms.
U.S. District Court Chief Judge F. Dennis Saylor IV granted a defense motion to dismiss the plaintiffs’ §1983 excessive force claim, concluding the officers were entitled to qualified immunity because the plaintiffs could not establish the use of force was so unreasonable as to violate the Fourth Amendment, and, even if they could, they were unable to show that a reasonable police officer would have understood that the use of force amounted to a constitutional violation.
“Here, the complaint alleges that the beanbag shotgun, if fired at short range, could be considered a lethal weapon,” Saylor wrote. “At the same time, it also is clear that it was only briefly pointed at Conlon shortly before he was fatally shot, and that he was within reach of both a knife and a fire extinguisher. Although it suggests that Conlon was at least partly compliant with officers’ commands because he dropped his weapons, the continuing standoff indicates that his compliance was limited at best. Those circumstances are not the kind of unreasonable or excessive conditions that could support a plausible constitutional violation.” The 31-page decision is Conlon, et al. v. City of Newton, et al., Lawyers Weekly No. 02-292-24.
Question of accountability?
Defense attorney Thomas R. Donohue of Boston referred a request for comment to his client. In a statement, Newton Mayor Ruthanne Fuller lauded the judge for recognizing that the officers had “acted reasonably” during a “difficult situation.”
The plaintiffs are considering an appeal, according to their attorney, Patrick Driscoll of Boston.
“The Conlon family is just seeking accountability because this is going to happen again,” Driscoll said. “There is going to be another Michael Conlon, which means there’s going to be another Bob and Betsy mourning the loss of a son or daughter. Police officers need to do better in these situations where they are dealing with people who suffer from mental illness.”
Brookline civil rights attorney Howard Friedman expressed concern that Conlon was decided on a motion to dismiss even though Saylor in his opinion acknowledged that it was a “close question” as to whether the officers’ use of deadly force was objectively reasonable.
“This is a police shooting where the only living witnesses are police officers,” Friedman said. “The plaintiffs are obviously at a disadvantage in drafting their complaint because the only information comes from police, and, therefore, I would expect there to be some discovery. Did all the officers come up with the same story? Where’s the physical evidence? Does it all line up? There’s no way for a plaintiff to have that information without discovery.”
Boston attorney Kenneth H. Anderson represents police officers accused of civil rights violations. Anderson said Conlon was placed in a good posture to be decided on a motion to dismiss by the fact that Middlesex County District Attorney Marian T. Ryan had conducted an inquest into the shooting.
“All the discovery that the parties could have gotten from depositions had the case gone forward was probably already available to the parties [from the inquest],” said Anderson, who represented at the inquest several of the officers named as co-defendants in Conlon, including Sgt. Glenn Chisolm, who attempted to fire the beanbag gun.
Plausibility means something. The law should not embrace a ‘sue now and figure out the details and theories later’ [approach].
Following the completion of the inquest in January 2022, District Court Judge Jeanmarie Carroll issued a report finding the Newton officers were not criminally responsible for Conlon’s death.
Andrew J. Gambaccini, who defends law enforcement officers, credited Saylor for holding the plaintiffs to the plausibility standard for a motion to dismiss and deciding the qualified immunity issue at an early stage in the litigation.
“A lot of judges might have waited to deal with that issue on summary judgment,” the Worcester lawyer noted. “But plausibility means something. The law should not embrace a ‘sue now and figure out the details and theories later’ [approach].”
According to Gambaccini, the fact that it was essentially undisputed that Conlon had picked up the knife and moved toward officers at the moment they opened fire provided Saylor with enough of a “nugget” to decide the qualified immunity issue on a motion to dismiss.
“That made this different from your normal excessive force complaint,” Gambaccini said.
But Northampton civil rights and criminal defense attorney Luke Ryan takes issue with the current framework for deciding the question of qualified immunity, calling the doctrine “broken.”
“The law on qualified immunity as it stands calls on almost a ‘scavenger hunt’ for controlling authority in the form of a case that is factually indistinguishable,” Ryan said. “If that doesn’t happen, the plaintiff is always going to be vulnerable to this kind of argument — that the defendant didn’t have clear notice [of a constitutional violation] —even when at the heart of it there’s the undisputed fact that the decedent dropped their weapon and someone made the decision to shoot a person, who was unarmed and compliant, with a beanbag gun.”
Excessive force claim
Filed in January 2023, the plaintiffs’ complaint alleges a claim for excessive force under 42 U.S.C. §1983 and related federal and state claims that Saylor also dismissed.
According to court records, the plaintiff suffered from significant mental health issues, including schizoaffective disorder, at the time of his death.
With regard to excessive force, the plaintiffs alleged in an amended complaint that, at the time of the shooting, their son was cornered in a narrow third-floor hallway in his apartment building, blocked from exiting in any direction by five Newton police officers and two State Police troopers. Conlon, et al. v. City of Newton, et al.
THE ISSUE: Are police who fatally shot a mentally disturbed armed robbery suspect who had picked up a knife and advanced after an officer’s beanbag gun misfired entitled to qualified immunity from a §1983 claim for excessive force?
DECISION: Yes (U.S. District Court)
LAWYERS: Patrick Driscoll, Janine D. Kutylo and Christopher W. Upperman, of Boyle Shaughnessy, Boston (plaintiffs)
Thomas R. Donohue and Amy B. Bratskeir, of Brody, Hardoon, Perkins & Kesten, Boston (defense)
“The Defendants knew or should have known that no other civilians were in the building or in harm’s way,” the complaint states.
The plaintiffs alleged that Captains Dennis Dowling and Christopher Marzilli, who were among the named co-defendants, acted in violation of department guidelines when they gave Officer Chisolm the order to shoot Conlon with the beanbag gun.
“Michael was smoking a cigarette and had dropped his kitchen knife voluntarily; Defendants knew law enforcement professionals specially trained in de-escalation would arrive in minutes; Defendants had the time and ability to, and in fact created, a barrier and spatial separation between themselves and Michael; … and Defendant Sergeant Chisholm knew from their firearms training that a bean bag round fired from close range had a significant likelihood of being lethal,” the complaint states.
According to the plaintiffs, the misfire of the beanbag gun directly resulted in the fatal turn of events.
“Michael — startled from the noise of the [beanbag] shotgun misfiring twice and from seeing a shotgun pointed directly at him in an enclosed space — allegedly picked up the kitchen knife and moved towards the officers,” the complaint states. “Defendant Officers [Richard] Benes and [Francis] Scaltreto reacted by fatally shooting Michael seven times at point-blank range.”
Case dismissed
Addressing whether the officers were entitled to qualified immunity, Saylor wrote that established caselaw required the court to answer two questions: (1) whether the use of force was so unreasonable as to violate the Fourth Amendment, and (2) if so, whether a reasonable police officer would have understood that the use of force amounted to a constitutional violation.
“If the answer to either of those questions is no, the officers are entitled to qualified immunity,” Saylor wrote.
The judge proceeded to answer both questions in the negative.
In concluding that the officers’ attempted use of the beanbag gun was not unreasonable, Saylor rejected the plaintiffs’ argument that qualified immunity analysis required the court to take into account the hypothetical force that would have been used had the beanbag gun functioned properly.
“Were a court to undertake that task, there would be no means to weigh the ‘nature and quality’ of a use of force that never actually occurred against any relevant government interest,” Saylor wrote. “Instead, courts would be forced to imagine the most extreme possible outcomes from a given scenario, and then weigh whether that hypothetical use of force was reasonable under the circumstances — as plaintiffs urge here. Adopting such a view would expand the scope of officers’ liability beyond what actually happened to what might have happened. There is no basis in law for the Court to entertain that expansion, and thus the complaint does not plausibly state a constitutional violation based on the attempted use of the less-than-lethal shotgun.”
Saylor wrote that, in any event, the plaintiffs failed to meet their burden to show that Chisholm’s use of a less-than-lethal beanbag shotgun violated any clearly established right.
“Plaintiffs point to three cases from other circuits to support their position, but none are analogous to the circumstances presented here,” Saylor found.
