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Lambert v. Town of Merrimack

United States District Court, D. New Hampshire

March 25, 2019

Gregory Lambert, as Administrator of the Estate of Harrison Lambert
Town of Merrimack, et al.


          Andrea K. Johnstone, United States Magistrate Judge.

         On September 3, 2015, two Merrimack police officers shot and killed Harrison Lambert while responding to a domestic disturbance at his home. Lambert's father, Gregory Lambert, brings this action as administrator of his son's estate, alleging that the officers violated Lambert's Fourth Amendment right to be free from excessive force and that the Town of Merrimack violated the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act by failing to accommodate Lambert's known mental disability. The Estate also brings several state-law claims against all three defendants. The case was assigned to the undersigned magistrate judge, to whose jurisdiction the parties consented. See doc. no. 2; see also 28 U.S.C. § 636(c).

         The defendants move for summary judgment on all counts, alternatively arguing that they did not violate Lambert's rights and that, even if they did, they are immune from suit. See doc. no. 12. While the Estate concedes summary judgment on the state-law claims, it contends that factual disputes in the record require that the federal claims be put to a jury. See doc. no. 19. The court heard oral argument in October 2018.

         The court grants the defendants' motion as to the Fourth Amendment claim. Even assuming the officers' conduct constituted excessive force, the Estate has not demonstrated that the unlawfulness of that conduct was clearly established at the time of the shooting. The officers are therefore entitled to qualified immunity, and the court dismisses them from this action.

         Based on recent controlling authority, however, the court concludes that summary judgment is not appropriate on the ADA and Section 504 claim, at least on the state of the present briefing. The court accordingly denies the defendants' motion without prejudice as to that claim, but grants the Town 45 days to file a renewed motion, as may be appropriate, taking into account these recent legal developments.


         Summary 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)).


         On September 3, 2015, at around 12:15 p.m., Master Patrolman Richard McKenzie of the Merrimack Police Department was at the police station working on reports when he received a radio from dispatch regarding a domestic incident at 8 Joppa Road in Merrimack. Doc. no. 12-17 ¶ 4. Dispatch indicated that the incident involved a man with a knife. Id. ¶ 3; doc. no. 12-2 ¶ 6. McKenzie left the police station, entered a fully marked police SUV, and radioed that he would respond to the scene. Doc. no. 12-17 ¶ 4.

         Lieutenant Matthew Tarleton and Master Patrolman William Gudzinowicz also heard the dispatch. Doc. no. 12-2 ¶¶ 5, 6; doc. no. 12-10 ¶ 5. Scheduled to co-teach a training session at No. 1:00 p.m., Tarleton and Gudzinowicz had just entered a fully marked police cruiser in the police station parking lot when the dispatch came through. Doc. no. 12-2 ¶¶ 5, 6; doc. no. 12-10 ¶ 5. Tarleton, who was in the driver's seat, saw McKenzie enter the SUV and leave for the scene. Doc. no. 12-2 ¶ 7. With Gudzinowicz in the passenger's seat, Tarleton pulled the cruiser behind the SUV and followed McKenzie to 8 Joppa Road. Id. ¶ 7; doc. no. 12-10 ¶ 5.

         McKenzie was on patrol duty when he received the call and was wearing a full patrol uniform and a duty belt, on which he carried a .40 caliber pistol, a radio, two magazines, and a Taser. Doc. no. 12-17 ¶ 2. Tarleton and Gudzinowicz wore training uniforms consisting of navy-blue collared shirts displaying the Merrimack Police Department badge insignia and their last names, with the department badge on the shoulders. Doc. no. 12-2 ¶ 3; doc. no. 12-10 ¶ 3. Gudzinowicz also wore a Merrimack Police Department baseball cap. Doc. no. 12-10 ¶ 3. Because they were dressed for training and not patrol duty, Tarleton and Gudzinowicz only carried .40 caliber pistols on their service belts, and not Tasers or other tactical gear. Doc. no. 12-2 ¶ 4; doc. no. 12-10 ¶ 4.

         The officers reached the scene in a matter of minutes. Doc. no. 12-17 ¶ 5; see also doc. no. 12-2 ¶ 8. McKenzie parked the SUV on the right side of the street with 8 Joppa Road ahead of him on the right. See doc. no. 12-6 at 3; doc. no. 12-13 at 3; doc. no. 12-21 at 3. Tarleton parked the cruiser behind McKenzie's SUV. Doc. no. 12-2 ¶ 9; doc. no. 12-10 ¶ 6; doc. no. 12-17 ¶ 5. McKenzie exited his vehicle first and identified Harrison Lambert standing about 15 yards from him.[1] Doc. no. 12-17 ¶ 6. Initially unable to see a knife, McKenzie shouted at Lambert to show his hands. Id. ¶ 7. Lambert did not obey and shouted expletives at the officers. Id.; doc. no. 12-2 ¶ 11.

         Due to Lambert's behavior, and because dispatch had reported an incident involving a knife, McKenzie unholstered his service weapon. Doc. no. 12-17 ¶ 7. At around this time, Tarleton exited the cruiser and saw Lambert standing at the end of the driveway to 8 Joppa Road, approximately 30 yards from him. Doc. no. 12-2 ¶ 10. Lambert started walking diagonally away from the officers. Doc. no. 12-2 ¶ 11. He then turned back, at which point McKenzie observed a knife in his hand. Doc. no. 12-17 ¶ 8. McKenzie shouted at Lambert to "drop the knife!" Id. ¶ 9. When McKenzie shouted, Tarleton also noticed the knife. Doc. no. 12-2 ¶ 12. Tarleton, too, started yelling at Lambert to stop and drop the knife. Id. ¶ 12.

         Gudzinowicz was exiting the cruiser when he heard McKenzie order Lambert to drop the knife. Doc. no. 12-10 ¶ 7. Gudzinowicz walked in front of the cruiser and observed Lambert standing at the end of the driveway with a knife in his right hand. Id. ¶¶ 7, 8. Gudzinowicz also shouted at Lambert to drop the knife. Id. ¶ 8. When Lambert did not comply, Tarleton and Gudzinowicz unholstered their service weapons. Id. ¶¶ 8, 9; doc. no. 12-2 ¶ 12. At that time, Gudzinowicz was in the middle of the three officers, with Tarleton to his immediate left and McKenzie ahead and to his right. Doc. no. 12-10 ¶ 8; doc. no. 12-17 ¶ 10. Lambert was approximately 30 yards from Tarleton and 15 to 20 yards from Gudzinowicz. Doc. no. 12-2 ¶ 13; doc. no. 12-10 ¶ 8.

         After briefly pacing back and forth, Lambert turned and started running at the officers in a zig-zagging fashion. Doc. no. 12-2 ¶ 14; doc. no. 12-10 ¶¶ 9, 10; doc. no. 12-17 ¶ 11. As he ran, Lambert held the knife at his side with the blade pointing forward. Doc. no. 12-2 ¶ 14; doc. no. 12-10 ¶ 10. The officers commanded Lambert to stop and drop the knife. Doc. no. 12-2 ¶ 14; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. Lambert turned suddenly and ran directly at Tarleton. Doc. no. 12-2 ¶ 15; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. The officers continued to shout at Lambert to stop and drop the knife. Doc. no. 12-2 ¶ 17; doc. no. 12-10 ¶ 11; doc. no. 12-17 ¶ 11. When Lambert did not obey, Tarleton and Gudzinowicz opened fire. Doc. no. 12-2 ¶ 19; doc. no. 12-10 ¶ 14; doc. no. 12-17 ¶ 13. Tarleton fired three shots and Gudzinowicz fired five. Doc. no. 12-2 ¶ 19; doc. no. 12-10 ¶ 15. McKenzie did not fire at Lambert out of concerns for collateral damage. Doc. no. 12-17 ¶ 13. McKenzie ...

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