United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE
Rand, the administrator of Wendy Lawrence's estate,
alleges that New Hampshire State Police Officer Chad Lavoie
shot and killed Lawrence in violation of the Fourth Amendment
and New Hampshire law. With discovery closed, Lavoie now
moves for summary judgment, claiming that he is entitled to
qualified immunity. Because Lavoie's argument depends on
facts that remain in genuine dispute, I deny his request for
for the moments immediately preceding the shooting, the
events leading up to the interaction between Lawrence and
Lavoie are largely undisputed. On September 30, 2013, New
Hampshire State Police Officer Kevin LeBlanc noticed a maroon
Monte Carlo drifting between lanes on Interstate 89 in New
Hampshire. See Doc. No. 60-2 at 1. Lawrence was the driver.
Id. Suspecting a possible instance of driving while
intoxicated, LeBlanc attempted to pull over the Monte Carlo.
See Id. Although Lawrence initially failed to
respond, she eventually pulled to the side of the road and
Officer Leblanc approached her vehicle. See Id.
After receiving Lawrence's identification card and
registration, LeBlanc ran her information and found that she
was a “habitual offender” with a suspended
license. See Id. at 1-2. Before he could view more
of her record, Lawrence drove away at approximately 80-90
mph. Id. at 2.
pursued Lawrence, but terminated his pursuit shortly after
reporting her information to dispatch. See Id. at 2.
Continuing along the interstate, however, LeBlanc came across
Lawrence again. See Id. This time, he saw that she
had crashed: she was sideways in the left lane of the highway
with other cars pulled off to the right. Id. When
LeBlanc drew closer, Lawrence drove away, nearly hitting a
man standing by the side of her car. See Id. LeBlanc
reinitiated his pursuit and was joined by several other
police cruisers. See Id. Some officers attempted to
deploy spike strips to stop Lawrence but were unsuccessful.
being pursued, Lawrence took an exit off of the interstate,
heading toward Manchester. See Id. At this point,
Lieutenant Matthew Shapiro, who was not on the scene, ordered
the officers to terminate the pursuit. Id.; see Doc.
No. 68-5 at 12 (saying “let her go”). The
officers accordingly turned off their lights and sirens, but
they continued following Lawrence through Manchester pursuant
to Sergeant Bryan Trask's subsequent instruction to
“play the area.” See Doc. No. 60-2 at 2. After
exiting the interstate, Lawrence stopped at stop signs,
obeyed the speed limit, and otherwise committed no motor
vehicle violations. See Doc. No. 68-2 at 9-11.
these events were unfolding, Lavoie heard over his radio that
State Police officers were pursuing a vehicle on the
interstate. See Doc. No. 68-4 at 3. Dispatch radioed for
assistance, specifically mentioning Lavoie's call number,
see Doc. No. 60-8 (recording of dispatch); Doc. No. 60-11 at
1, and he proceeded to drive toward the pursuit, see Doc. No.
62-6 at 6. Before he encountered Lawrence, however, Lavoie
heard Lt. Shapiro's and Sgt. Trask's orders, so he
turned off his lights and siren and “played the
area.” See Doc. No. 60-11 at 1; Doc. No. 68-4 at 5. By
the time he encountered Lawrence, Lavoie had learned that she
was driving a maroon or “reddish” Monte Carlo,
see Id. at 9; had a suspended license, id.; had
refused to stop, Id. at 18; had been driving at 90
mph, Id. at 19; and that spike strips had been
unsuccessfully deployed, see Doc. No. 60-11 at 1.
Manchester, Lawrence eventually came to a stop sign at the
intersection of Dave Street and Kennard Road, with LeBlanc
and others still behind her. See Id. at 1. The
parties dispute what happened next. According to Lavoie, he
pulled in front of Lawrence as she was coming to the stop
sign on Dave Street. See Doc. No. 60-11 at 1-2. Lavoie then
exited his cruiser and came around its trunk, standing a
short distance away from the back-right bumper. See
Id. at 2; Doc. No. 62-1. At some point during this
time, Lawrence rammed the right side of Lavoie's cruiser,
see Doc. No. 68-4 at 44, and Lavoie began commanding Lawrence
to stop her vehicle and raised his firearm. See Doc. No.
60-11 at 2; Doc. No. 62-6 at 19-20. Lt. Shapiro heard over
the radio around this time that Lawrence had rammed a
cruiser, and he instructed the officers again to “let
her go.” Doc. No. 62-5 at 3. Standing near his
cruiser's back-right bumper, Lavoie saw Lawrence back up
and hit the State Police cruiser behind her, then turn her
steering wheel and move toward him in an arc. See Doc. No.
60-11 at 2. In response, Lavoie discharged his firearm until
Lawrence's car stopped moving, Doc. No. 68-6 at 10,
firing a total of eleven shots in about three seconds,
killing Lawrence. Doc. No. 60-10; see Doc. No. 68-1 at 1, 3.
Lawrence's vehicle came to a stop approximately five feet
from Lavoie's shooting position. See Hearing on Motion
for Summary Judgment held August 7, 2017. Lavoie estimated
that four to five seconds elapsed between exiting his cruiser
and beginning to discharge his weapon. See Doc. No. 68-4 at
69-70; Doc. No. 68-6 at 22. His version of events is
supported primarily by his own statements and LeBlanc's,
the physical evidence, and the opinion of ballistics expert
Lucien Haag, who asserted that Lawrence's vehicle moved
toward Lavoie while he fired. See Doc. No. 62 at 5-9; Doc.
No. 85 at 2; Doc. No. 60-24 at 2-3.
tells a very different story. Per Rand, while Lawrence was
stopped at the intersection, Lavoie pulled in front of her,
scraping the right side of his cruiser against the front of
Lawrence's vehicle. See Doc. No. 68-1 at 19-20. Lavoie
then exited his cruiser and fired eleven shots through
Lawrence's windshield. See Id. at 1, 3, 19.
According to Rand, Lawrence's vehicle did not move after
the collision with Lavoie's cruiser. See Id. at
20. Because Lawrence did not survive, Rand relies principally
on the opinion of collision reconstruction expert Carl
Lakowicz to support his version of events. See Id.
at 18- 20; Doc. No. 68-7 at 3. Lakowicz opined that only one
collision occurred in the relevant timeframe - Lavoie's
cruiser hit Lawrence's vehicle - and Lawrence's
vehicle was stationary for five seconds prior to that
collision. See Doc. No. 68-21 at 3- 4. Lakowicz denies that
Lawrence's vehicle was moving toward Lavoie when he began
firing. Id. at 7. Lakowicz also opines that even if
Lawrence's vehicle were moving towards Lavoie, it was
moving so slowly that he would have had up to 11.25 seconds
to safely step out of the way. See Id. at 5.
also relies on the expert opinion of criminologist George
Kirkham. See Doc. No. 68-1 at 10-13. Assuming that
Lawrence's vehicle moved towards Lavoie, Kirkham opined
that no “competent and properly trained officer”
in Lavoie's position would have reasonably perceived an
imminent threat of serious bodily harm or “believed
that there was no alternative but to use deadly force.”
Doc. No. 68-10 at 5. Kirkham concludes that Lavoie could have
safely stepped outside the path of Lawrence's vehicle.
See Id. at 5-6. He also quotes the 2006 Model Policy
of the International Association of Chiefs of Police, which
provides that officers should step outside the path of moving
vehicles and only use firearms where “a person in the
vehicle is immediately threatening the officer or another
person with deadly force by means other than the
vehicle.” Id. at 6.
STANDARD OF REVIEW
grant summary judgment where the moving party “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56. “If a nonmovant bears the ultimate
burden of proof on a given issue, she must present
‘definite, competent evidence' sufficient to
establish the elements of her claim in order to survive a
motion for summary judgment.” Pina v.
Children's Place, 740 F.3d 785, 795-96 (1st Cir.
2014) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991)). I must “draw all reasonable
inferences from the record in the light most favorable to the
nonmoving party, disregarding any ‘conclusory
allegations, improbable inferences, and unsupported
speculation.'” McGrath v. Tavares, 757
F.3d 20, 25 (1st Cir. 2014) (quoting Alicea v. Machete
Music, 744 F.3d 773, 778 (1st Cir. 2014)). And where the
moving party raises a qualified immunity defense, the
nonmoving party has the burden of showing that qualified
immunity does not apply. See Mitchell v. Miller, 790
F.3d 73, 76-77 (1st Cir. 2015) (second prong); cf. Lopera
v. Town Of Coventry, 640 F.3d 388, 395-96 (1st Cir.
2011) (first prong); Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011).
brings two claims against Lavoie. First, Rand seeks to
recover under 42 U.S.C. § 1983 for the use of excessive
force in violation of the Fourth Amendment. Doc. No. 19 at
14. Next, Rand seeks damages for wrongful death under section
556:12 of the New Hampshire Revised Statutes. Id. at
15. I consider each claim in turn.
Section 1983 Claim
asserts that he is entitled to summary judgment on Rand's
§ 1983 claim because qualified immunity shields him from
suit. The doctrine of qualified immunity reflects a careful
balance between “the need to hold public officials
accountable when they exercise power irresponsibly and the
need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). It
“ensure[s] that before they are subjected to suit,
officers are on notice their conduct is unlawful.”
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting
Saucier v. Katz, 533 U.S. 194, 206 (2001)). In
short, qualified immunity shields “all but the plainly
incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986).
overcome Lavoie's qualified immunity defense, Rand must
show that Lavoie “violate[d] clearly established
statutory or constitutional rights of which a reasonable
person would have known.” See Mullenix v.
Luna, 136 S.Ct. 305, 308 (2015) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). The First Circuit
has explained that there are two aspects to this inquiry:
“(1) whether the facts alleged or shown by the
plaintiff make out a violation of a constitutional right; and
(2) if so, whether the right was ‘clearly
established' at the time of the defendant's alleged
violation.” Stamps v. Town of Framingham, 813
F.3d 27, 34 (1st Cir. 2016) (quoting Mlodzinski v.
Lewis, 648 F.3d 24, 32 (1st Cir. 2011)).
Fourth Amendment excessive force claim requires proof that
“the defendant officer employed force that was
unreasonable under the circumstances.” McGrath, 757
F.3d at 25 (quoting Kenney v. Floyd, 700 F.3d 604,
609 (1st Cir. 2012)). In general, an officer may not use
deadly force defensively or to prevent escape unless a
“reasonable officer [in the same circumstances] would
believe that [an individual] posed a ‘threat of serious
physical harm either to the officer or others.'”
See Young v. City of Providence ex rel. Napolitano,
404 F.3d 4, 23 (1st Cir. 2005) (quoting Tennessee v.
Garner, 471 U.S. 1, 12 (1985)). But general rules only
go so far. In assessing the reasonableness of an
officer's conduct, courts balance “the nature and
quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing governmental
interests at stake.” Plumhoff v. Rickard, 134
S.Ct. 2012, 2020 (2014) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). They must take into account the
“totality of circumstances, ” Garner, 471 at 9,
and “slosh [their] way through the factbound morass of
‘reasonableness, '” Scott v. Harris,
550 U.S. 372, 383 (2007).
Fourth Amendment's reasonableness test is objective: it
focuses on how a “reasonable officer on the
scene” would act, rather than an officer's actual
state of mind. See McGrath, 757 F.3d at 25 (quoting Kenney,
700 F.3d at 609)). Crucially, courts must avoid analyzing an
officer's conduct “with the 20/20 vision of
hindsight” and should be mindful that “police
officers are often forced to make split-second judgments - in
circumstances that are tense, uncertain, and rapidly evolving
- about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396-97.
determining whether a constitutional right is clearly
established, “[w]e ask (a) whether the legal contours
of the right in question were sufficiently clear that a
reasonable officer would have understood that what he was
doing violated the right, and (b) whether in the particular
factual context of the case, a reasonable officer would have
understood that his conduct violated the right.”
Stamps, 813 F.3d at 34 (quoting Mlodzinski, 648 F.3d at
32-33). Although Rand need not provide a “case directly
on point” to pierce qualified immunity, “existing
precedent must have placed the statutory or constitutional
question beyond debate.” Mullenix, 136 S.Ct. at 308
(quoting al-Kidd, 563 U.S. at 741). This requires either
“controlling authority or a robust consensus of cases
of persuasive authority.” Plumhoff, 134 S.Ct. at 2023
(citation and internal quotation marks omitted) (dictum).
the Supreme Court has stressed that courts cannot define a
clearly established right “at a high level of
generality, ” but instead must determine “whether
the violative nature of particular conduct is clearly
established.” Mullenix, 136 S.Ct. at 308 (citation
omitted); see also White v. Pauly, 137 S.Ct. 548,
552 (2017). In other words, an act's “unlawfulness
must be apparent.” White, 137 S.Ct. at 552 (quoting
Anderson v. Creighton,483 U.S. 635, 640 (1987)). A
right described “at a high level of ...