VICKI McKENNEY, individually and as next friend of STEPHEN McKENNEY, and as personal representative of the ESTATE OF STEPHEN McKENNEY, Plaintiff, Appellee,
NICHOLAS MANGINO, Defendant, Appellant, CUMBERLAND COUNTY ET AL., Defendants.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE HON. JON D. LEVY, U.S. DISTRICT JUDGE
T. Marchesi, with whom Cassandra S. Shaffer and Wheeler &
Arey, P.A. were on brief, for appellant.
J. Drake, with whom Drake Law, LLC, Amber L. Tucker, and The
Law Office of Amber L. Tucker, LLC were on brief, for
Howard, Chief Judge, Selya and Lipez, Circuit Judges.
a tragic case in which a man died at the hands of a police
officer who was trying to do his job. The underlying suit
alleges, in relevant part, that the officer violated 42
U.S.C. § 1983 through the precipitous use of deadly
force. In a pretrial ruling, the district court held that the
officer was not entitled to qualified immunity at the summary
judgment stage. See McKenney v. Mangino, No.
2:15-cv-00073, 2017 WL 1365959, at *13 (D. Me. Apr. 12,
2017). The officer challenges that ruling. After careful
consideration, we dismiss portions of this interlocutory
appeal for want of appellate jurisdiction and otherwise
we are tasked with reviewing a summary judgment ruling, we
rehearse the facts in the light most hospitable to the
nonmovant, consistent with record support. See Foote v.
Town of Bedford, 642 F.3d 80, 82 (1st Cir. 2011).
April 12, 2014, a clear, sunny day in Windham, Maine,
plaintiff-appellee Vicki McKenney called 911 at 6:14 a.m. to
report that her husband, 66-year-old Stephen McKenney, was
threatening suicide and had been "aggressive" and
"physical" with her. She told the dispatcher that
her home contained firearms. Within a matter of minutes,
Windham police officers James Cook and Seth Fournier arrived
at the McKenney residence and met Mrs. McKenney (who was
standing outside). She explained that her husband had been
experiencing severe back pain and had "snapped"
that morning. Almost immediately thereafter, a Cumberland
County deputy sheriff, defendant-appellant Nicholas Mangino,
drove up in his cruiser to serve as backup.
three officers entered the front room of the house at 6:22
a.m. and encountered McKenney, who appeared to have a gun in
his hand. When asked what he was holding, McKenney replied
".357 Magnum." Although the officers twice directed
McKenney to put the gun down, McKenney did not comply. Still,
he never pointed his weapon at any of them inside the
dwelling, nor did he utter anything resembling a threat.
officers retreated outdoors, leaving McKenney inside the
house. Officer Fournier placed Mrs. McKenney in his patrol
car, which he then drove to a cul-de-sac at the end of the
street a few hundred yards away. He maintained a clear line
of sight, though, to the garage and driveway of the McKenney
home. Meanwhile, the defendant, armed with his AR-15 rifle,
his Taser, and pepper spray, took cover behind his cruiser
(which was parked roughly 100 feet from the McKenneys'
defendant peeked over his car from time to time to observe
the garage and driveway, while simultaneously receiving
updates about McKenney's movements from Officer Fournier.
Between 6:24 a.m. and 6:31 a.m., McKenney ambled nonchalantly
around and about his open garage, driveway, and house. He
entered and exited the dwelling around six times during that
seven-minute span. At about 6:26 a.m., McKenney left the
house with his gun dangling from his hand. The defendant
yelled at him three times to "drop the gun." A few
seconds later, McKenney - who was approximately 100 feet away
from the defendant - raised the gun over his
head.By all accounts, McKenney had a vacant
stare and appeared "not at home" mentally. In short
order, he lowered the gun without firing it and continued to
weave haphazardly into and out of his house between 6:26 a.m.
and 6:31 a.m.
approximately 6:31 a.m., Officer Fournier radioed to the
defendant that McKenney, who was still dangling his firearm
and walking leisurely, was in front of the garage. Fournier
stated: "I can't tell, but he might be pointing
that, so be careful." Within seconds, McKenney began
walking (still in his driveway) in the direction of the
defendant's parked cruiser. He was not making any sudden
or evasive movements and was not pointing his gun at anyone.
Officer Fournier alerted the defendant that McKenney was
"walking toward your car right now." When McKenney
had reached a point 69 feet away from the cruiser, the
defendant fired an errant shot at McKenney's central
mass. Seconds later, he fired a second shot at McKenney's
head, which struck and killed McKenney. None of the officers
had warned McKenney that they would use deadly force if he
refused to drop his weapon.
fast-forward to February of 2015, when Mrs. McKenney, qua
plaintiff, suing individually and as the personal
representative of McKenney's estate, brought a civil
action in a Maine state court against the defendant and
several other persons and entities. As relevant here, the
plaintiff sued the defendant under 42 U.S.C. § 1983,
which authorizes suit against any person who, while acting
under color of state law, violates another person's
federally assured constitutional or statutory rights. See
Kalina v. Fletcher, 522 U.S. 118, 123 (1997).
Specifically, the ...