United States District Court, D. New Hampshire
Gregory Lambert, as Administrator of the Estate of Harrison Lambert
Town of Merrimack, et al.
K. Johnstone, United States Magistrate Judge.
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).
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.
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.
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.
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)).
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
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.
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
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. 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.
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.
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.
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 ...