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Rand v. Lavoie

United States District Court, D. New Hampshire

September 5, 2017

Michael Rand, Administrator of the Estate of Wendy Lawrence
Chad Lavoie, in both his individual and official capacities Opinion No. 2017 DNH 177



         Michael 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 summary judgment.

         I. BACKGROUND

         Except 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.

         LeBlanc 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. Id.

         While 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.

         As 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.

         In 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;[1] 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.

         Rand 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.

         Rand 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.


         I may 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).

         III. ANALYSIS

         Rand 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.[2] 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.

         A. Section 1983 Claim

         Lavoie 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).

         1. Legal Standard

         To 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)).

         A 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).

         The 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.

         In 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).

         Furthermore, 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 ...

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