United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
K. Johnstone United States Magistrate Judge
November 2014, Henniker Police Officer Stephen Dennis shot
Aaron Bruce Cadman while on duty. The shooting was not fatal,
and in May 2016, Cadman filed this action against Dennis and
the Town of Henniker (“Town”) alleging violations
of the Fourth Amendment and state law. Specifically, Cadman
alleged federal claims of excessive force against Dennis
(Count I) and failure to train and supervise against the Town
(Count II), both brought pursuant to 42 U.S.C. §
1983 (Count I); and state-law claims of assault (Count
III), battery (Count IV), and negligent use of force (Count
V) against Dennis and vicarious liability against the Town
(Count VI). The case was assigned to the undersigned
magistrate judge, to whose jurisdiction the parties
consented. Cadman's estate (the “Estate”) was
substituted as a party in August 2016, after Cadman died of
causes unrelated to the shooting.
moved for judgment on the pleadings on the state-law claims.
The court granted that motion as to the vicarious liability
claim against the Town, but denied it without prejudice as to
any of the state-law claims against Dennis. With discovery
closed, defendants now move for summary judgment on all
remaining claims. The Estate concedes that the Town is
entitled to summary judgment on Count II, the failure to
train and supervise claim, but otherwise objects.
Dennis is entitled to qualified immunity on the federal claim
and municipal immunity on the state-law claims, the court
grants defendants' motion for summary
STANDARD OF REVIEW
judgment is appropriate 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(a). “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)). The court must “draw all
reasonable inferences from the record in the light most
favorable to the nonmoving party, disregarding any
‘conclusory allegations, improbable inferences, or
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)). Where, as here, 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, 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).
relevant facts appear to be largely undisputed. On November
26, 2014, Henniker Police Officer Stephen Dennis was on duty
in a marked Henniker Police Department (“HPD”)
cruiser. Doc. no. 24-2 ¶ 7. At just after 5:00
p.m., Merrimack County Dispatcher Danica Gorham called
Dennis's cell phone and informed him that dispatch had
received a “BOLO” for a vehicle stolen in a
“strong arm robbery” (the “vehicle”).
Id. ¶ 8. Gorham informed Dennis that the
vehicle was being tracked using OnStar and was located on
Route 202 in Henniker. Id. Dennis understood that
the driver of the stolen vehicle had hit or attempted to hit
the vehicle's owner and should be considered “armed
and dangerous.” Id. Only a few miles away, Dennis
activated his emergency lights and proceeded to the route.
Id. ¶ 9; doc. no. 27-4 at 27.
was heavy due to snowy conditions. Doc. no. 24-2 ¶ 9;
doc. no. 24-5 ¶ 3. While en route, Dennis heard
Hillsborough dispatch calls over his radio updating the
location of the vehicle. Doc. no. 24-2 ¶ 9.
Dennis made contact with a vehicle matching the description
of the vehicle in question. Id. Dennis deactivated
his emergency lights and contacted Hillsborough dispatch to
confirm the license plate of the vehicle. Id.; doc.
no. 27-4 at 18. Once confirmed, Dennis reactivated
his emergency lights to signal to the driver to pull over.
Doc. no. 24-2 ¶ 9.
driver accelerated and pulled into the oncoming lane of
traffic. Id. ¶ 9. Dennis activated his siren
and pursued the vehicle. Id. ¶ 10. Traffic was
generally moving at around thirty miles-per-hour due to the
snow. Doc. no. 24-5 ¶ 3; doc. no. 27-4
at 15. Dennis pursued the vehicle at approximately fifty
miles-per-hour, but was unable to keep up. Doc. no.
27-4 at 6, 13, 14, 27. While in pursuit, Dennis put
a call out over Hillsborough dispatch. Id. at 7.
was able to maintain visual contact with the vehicle during
the pursuit. Doc. no. 24-2 ¶ 10. The vehicle
remained in the oncoming lane of traffic. Doc. no.
27-4 at 13. Dennis saw the vehicle spin, indicating
that the driver had lost control. Id. at 7; doc. no.
24-2 ¶ 10. As Dennis approached, he observed
the vehicle in the middle of the road perpendicular to
traffic with the driver's side facing Dennis. Doc. no.
24-2 ¶ 11; doc. no. 27-5. The vehicle
had collided with a red pickup truck traveling in the
oncoming lane, which had sustained damage and was off to the
side of the roadway. Doc. no. 24-2 ¶ 11; doc.
no. 27-5. The vehicle had also collided with a black
pickup truck, which had come to a stop fifteen-to-twenty feet
from the vehicle in the right breakdown lane. Doc. no.
24-2 ¶ 11; doc. no. 24-5 ¶ 4;
doc. no. 24-6 ¶ 4. Another car had stopped
behind the black pickup truck in the right lane. Doc. no.
24-6 ¶ 6; doc. no. 27-5.
stopped his cruiser in the roadway approximately level with
the red pickup truck. Doc. no. 24-2 ¶ 11; doc.
no. 24-6 ¶ 6; doc. no. 27-5. The
driver of the stolen vehicle, later identified as Aaron Bruce
Cadman, exited the vehicle. Doc. no. 24-2 ¶ 12;
doc. no. 24-6 ¶ 6. Dennis exited his cruiser,
unholstered his weapon, and pointed it at Cadman. Doc. no.
24-2 ¶ 13; doc. no. 24-5 ¶ 5;
doc. no. 24-6 ¶ 6. Dennis shouted at Cadman to
show his hands, but Cadman did not respond. Doc. no.
24-2 ¶ 13; doc. no. 24-6 ¶ 6.
Dennis slowly approached Cadman with his weapon drawn,
repeatedly shouting at Cadman to show his hands. Doc. no.
24-2 ¶ 13; doc. no. 24-6 ¶ 6. Cadman kept
his back to Dennis and started rummaging in the
vehicle.Doc. no. 24-2 ¶ 13; doc. no.
24-5 ¶ 6; doc. no. 24-6 ¶ 6.
Dennis reached the back of the black pickup truck and shouted
multiple times for Cadman to show his hands. Doc. no.
24-2 ¶ 14; doc. no. 24-5 ¶¶
5, 6; doc. no. 24-6 ¶¶ 6, 7. Cadman kept
his back to Dennis and continued to rummage in the
driver's side of the vehicle. Doc. no. 24-2
¶ 14; doc. no. 24-5 ¶ 6; doc. no.
24-6 ¶ 7.
for the safety of himself and others at the scene, Dennis
fired a single shot, striking Cadman in the arm. Doc. no.
24-2 ¶ 15, 16; doc. no. 24-5 ¶ 6;
doc. no. 24-6 ¶ 7. Cadman fell to the ground,
and Dennis closed the distance and checked Cadman for
weapons. Doc. no. 24-2 ¶ 15; doc. no.
24-6 ¶ 7. Not finding any, Dennis identified
Cadman and began tending to his medical needs. Doc. no.
24-2 ¶ 15; doc. no. 27-4 at 36.
Estate currently has a federal claim pending against Dennis
for excessive force, a federal claim pending against the Town
for failure to train and supervise, and state-law claims
pending against Dennis for assault, battery, and negligent
use of force. As noted, however, the Estate concedes that the
Town is entitled to summary judgment on the failure to train
and supervise claim. Thus, defendants' motion for summary
judgment is granted as to ...