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McKenney v. Mangino

United States Court of Appeals, First Circuit

October 6, 2017

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.


          Peter T. Marchesi, with whom Cassandra S. Shaffer and Wheeler & Arey, P.A. were on brief, for appellant.

          Jamesa J. Drake, with whom Drake Law, LLC, Amber L. Tucker, and The Law Office of Amber L. Tucker, LLC were on brief, for appellee.

          Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.

          SELYA, Circuit Judge.

         This is 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 affirm.

         I. BACKGROUND

         Because 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).

         On 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.

         The 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.

         The 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' garage).[1]

         The 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.[2]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.

         At 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.

         We 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.[3] 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 ...

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