USCA1 Opinion

December 22, 1995

United States Court of Appeals
For the First Circuit
____________________

No. 95-1463

KATHY ST. HILAIRE, ETC.

Plaintiff, Appellant,

v.

CITY OF LACONIA, ET AL.

Defendants, Appellees.

____________________

ERRATA SHEET
ERRATA SHEET

The opinion of this Court

issued on December 1,

1995, is amen

paragraph

deleted

as follows:

On

page

22,

the

first

should

be

and

following paragraph inserted in its place:

Summary judgment
Laconia, the Town

in

favor of

the

of Belmont and the

because there is no

municipalities,
County of Belknap,

evidence, even had plaintiff shown

of St. Hilaire's

constitutional rights, that

official

taken

action

municipality.
U.S. 658,

pursuant

to

it was

"custom

or

the City

is affir

a deprivat
as a result
usage"

of

See Monell v. New York City Dep't. of Social Servs.

___ ______
_____________________________________

691 (1978).

Other

than this single incident,

there is

show such a municipal "custom

and usag

incident is usually insufficient to

establis

evidence even proffered to

Evidence of a single
"custom or usage."

Mahan v. Plymouth County House of Corrections,

_____
_____________________________________

F.3d 14, 16-17 (1st Cir. 1995).

United States Court of Appeals

For the First Circuit
____________________

No. 95-1463

KATHY ST. HILAIRE, ETC.

Plaintiff, Appellant,

v.

CITY OF LACONIA, ET AL.

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

___________________

____________________

Before

Lynch, Circuit Judge,

_____________

Aldrich and Campbell, Senior Circuit Judges.

_____________________

____________________

David H. Bownes,
________________

with whom

A. G. O'Neil, Jr.
___________________

and

Normand
_______

Cheney & O'Neil were on brief, for appellant.

_______________
Wayne C. Beyer, with whom
______________
on

brief, for

Wayne C. Beyer and Associates, P.C.

___________________________________

appellees City of

Laconia, Town of

Belmont, David

Gunter, David Nielsen, and Brian Loanes.

Donald J. Perrault,
____________________

with

whom

Christine Desmarais-Gordon
___________________________

Wadleigh, Starr, Peters, Dunn & Chiesa were on

________________________________________

brief, for appell

County of Belknap, Robert Dupuis, Jr., and Daniel Collis.

____________________

December 1, 1995
____________________

LYNCH, Circuit Judge.

LYNCH, Circuit Judge.
_____________

leaving Philip

bullet

and

St. Hilaire

leaving

law

A tragic sequence of events

dead from wounds

enforcement

from a

officers

police

and

their

municipal employers sued by his widow brings this case before

us.

The district court

widow's

officers

action under

entered summary judgment against the

42

were protected

U.S.C.

by

1983,

finding that

qualified immunity.

Mrs.

the

St.

Hilaire

material

appeals,

fact

saying

and

that

there

the

are

officers

established constitutional rights.

are

disputes of fact, those

affirm

because the

genuine

abrogated

are

clearly

entitled

material.

to

We

qualified

immunity in that they did not violate any constitutional

that

of

We hold that while there

disputes are not

defendants

disputes

law

was clearly established at the time of the shooting and

they could reasonably have

believed their search warrant was

supported by probable cause.

FACTS

Armed

with some evidence (the sufficiency of which

plaintiff challenges),

Deputy Robert

Dupuis of the

Belknap

County Sheriff's Office applied for a search warrant from the

local

district court to search both the person of Philip St.

Hilaire

Based

and his

on

place of

information

police believed

Auto Wrecking and

from

St. Hilaire

business, Laconia

Auto Wrecking.

confidential informant,

was selling cocaine

that he had just travelled to

-22

the

at Laconia

New York to

"score" a load of cocaine.

The warrant issued and the police

planned their operation to execute the search warrant.

It

was

joint

operation

Sheriff's Office, the Belknap

David Gunter --

the

Belknap

Police and the Laconia Police.

The participants -- defendants

Collis, Sgt. David Nielsen,

between

Deputy Dupuis, Deputy

Daniel

Sgt. Brian Loanes, and Detective

met in the early evening

St. Hilaire

to be

of April 27, 1990.

The police

believed

armed and

possibly

dangerous.

They knew that St. Hilaire carried a .357 caliber

revolver or a .25 caliber semi-automatic pistol, or both, and

that he had a shotgun

also

had

information

earlier, pointed

a gun

and a crossbow on the premises.

that

at

St. Hilaire

the head

of

had,

a person

few

who

They

days

had

stooped

to pick

police had

up St.

Hilaire's dropped

also received complaints some

money bag.

The

time earlier about

the sounds of shooting from the auto yard.

The

glass

police

were

on the front of

difficult

concerned

out.

the reflective

Laconia Auto Wrecking,

for people outside to

inside to see

about

They felt

see in but

it would be

which made it

easy for people

a danger to

the

police to approach the front of the building abruptly.

They

Nielsen

and

decided

Loanes

Detective Gunter,

surveillance,

that

would

Deputy

Dupuis

and

Sergeants

execute

the

search

warrant.

stationed across

would then

come in

-33

the street to

with his

drug

help with

dog, Lux.

Deputy Sheriff

Collis was also stationed

across the street,

monitoring the auto yard, in radio communication with Dupuis.

Sergeant Nielsen was in uniform; the remaining four defendant

officers

were in plain clothes.

the rear of the

building.

The search

Patrolmen in two

team waited at

marked cruisers

were stationed on the road on either side of the business.

The

plan was as follows.

The team,

led by Sgt.

Nielsen would enter the building and then

and the building.

would

If the building was closed,

find a way to

emerge

purpose.

uniform

as

Detective

the officers

wait for St. Hilaire to

They planned to identify

law

enforcement

officers

Sergeant

Nielsen was

to lead

and

state

because he

their

was in

and St. Hilaire knew him from prior encounters.

officers thought

warrant,

enter or would

and then reach him outside.

themselves

search St. Hilaire

this would be

Gunter testified

the

best

policy

the safest

that, in

is

to

The

way to

proceed.

execution of

a search

make

sure

the

subject

understands that he is dealing with a police officer.

Things

watching

did

not

go

according

to

plan.

After

someone else unsuccessfully trying to get in to the

building,

locked

Collis concluded

and radioed

manpower and

waiting behind

so to

that the

Dupuis.

called Detective Gunter

the building.

front door

was likely

Dupuis decided

on more

over to join

the team

Collis then

saw St.

Hilaire

leave the building with his dog, lock up, and walk toward his

-44

car in the parking

lot.

Collis radioed this

information to

Dupuis.

The

team,

building, decided

closest

others.

to the

waiting

to move

parking

lot, ran

The police rounded

travelled the

roughly 125

seconds, hoping to reach

car.

in

and

in.

It was not to be.

behind

the

Detective

in

Gunter, who

front, ahead

the corner of

feet to the

auto-wrecking

the back seat, gotten

turned on the engine.

the

the building and

car in

a period

St. Hilaire before he got

St.

of

was

of

into his

Hilaire had already put his dog

into the driver's

seat of his car

Detective Gunter, who was dressed

in jeans and a t-shirt, ran up to the car.

St. Hilaire, at

that moment, looked

up and saw

stranger dressed

in jeans and

a t-shirt, approach

car passenger window, pointing

him.

his

St. Hilaire's eyes

own

gun,

or

so

it

Detective Gunter fired a

neck.

The

bullet

his open

a .357 magnum revolver toward

widened.

St.

appeared

to

Hilaire reached for

Detective

Gunter.

bullet, hitting St. Hilaire in

lodged

in

St.

Hilaire's

the

vertebra,

paralyzing him from the neck down.

Sergeant Nielsen, in uniform, reached the car next.

He saw

that St. Hilaire's right hand was on

the car seat.

the gun.

St.

could not move.

top of a gun on

Sergeant Nielsen told St. Hilaire to let go of

Hilaire replied

that he could

The police removed the gun.

-55

not, that

he

St. Hilaire

said to

Sgt. Nielsen, "I

didn't know

you guys were the cops.

Why didn't he identify himself?

didn't

he

say he

emergency room,

didn't

identify

was

St. Hilaire

himself."

cop?"

Later, at

the

repeatedly told his

St.

Hilaire

made

Why

hospital

nurse, "He

the

same

statements to his wife.

The police testified, at

deposition, that they did

identify themselves.

was

Detective Gunter testified that when he

halfway to the car

he yelled, "Phil,

then, at the side of the

testified,

"I'm

remember."

Gunter

Sergeant

say, "Hold

Detective Gunter

side of

the car.

Detective

police."

rounded

Loanes

freeze."

sure

Gunter

car, he yelled "Hold it."

yelled

it Phil,

was about

a foot

heard

Two

away from

Detective

police," as

the passenger

was just

behind

Gunter yell

"Phil,

feet from the

someone say

don't

heard Detective

Hold it,

said he

He also

said he also yelled, "Police"

the building, some 58

heard

but

that he

police.

Deputy Dupuis

Deputy Dupuis

said he

'police,'

Nielsen said

and

police, Phil" and

as he

car.

Sergeant

something like

"Police,

other officers, who had been

stationed across

the

street, heard

Collis,

someone

yell, "Police."

One of

them,

heard "Police" within two seconds of the gunshot.

passing motorist heard "Freeze," just before seeing the flash

of a gun.

held

Detective Gunter also said he had his police badge

in his

extended left

hand as

-66

he approached

the car.

Dupuis

saw

the

badge

in

Detective

Gunter's

left

hand

immediately after the shooting.

Some currency and a bag containing three-fourths of

an ounce of cocaine, worth about $2,200, were recovered

St. Hilaire's jacket.

result

of complications

from

St. Hilaire died in October 1991 as a

from

his injuries.

He

was forty

years old.

LEGAL CLAIMS

Kathy St. Hilaire brought suit individually

executrix of the estate under 42 U.S.C.

defendants

had

violated the

Fourth

and as

1983 asserting that

Amendment.

She

also

brought pendent state law claims for negligence and negligent

and

intentional

infliction

of

emotional

distress.

Plaintiff's Fourth

warrant

Amendment theories

was obtained

defendants "used

warrant upon

her

themselves as

without

were that

probable cause

unreasonable

force in

husband in

that they

the search

and that

executing a

failed to

the

search

identify

police officers and then shot her husband when

he failed to yield."

The

on qualified

Hegarty v.
_______

district court entered

immunity.

That

Somerset County,
_______________

1995)(citing Jirau-Bernal v.
____________

1994)), petition
________

summary judgment based

decision is reviewed

53

F.3d 1367,

1372 (1st

Agrait, 37 F.3d 1,
______

for cert. filed

___ _____ _____

de novo.
_______

(U.S. Oct. 17,

Cir.

3 (1st Cir.

1995) (No.

-77

95-629).

All facts are reviewed in the light most favorable

to the party opposing summary judgment.

The ultimate question

Id.
___

of qualified immunity should

ordinarily be decided by

the court.1

U.S.

In determining

224, 228

(1991).

Hunter v.
______

Bryant, 502
______

whether there

is a

qualified immunity defense "the

agents

acted

reasonably

circumstances."

Id.
___

court should ask whether the

under

settled

law

in

the

This court has identified two prongs to

____________________

1.

While

fully

this court

has not

the allocation

of

had the

occasion to

functions between

judge and

where facts relevant to the immunity defense are

we have said that

"we doubt the Supreme Court

dispute to be resolved
Watkins,
_______

942

F.2d 67,

from the bench by

72 (1st

Cir.

explore
jury

in dispute,
intended this

fiat."

1991).

Prokey
______

v.

The ultimate

question of whether a reasonable police officer, on the basis

of information known to him, could have believed his
were in accord with

constitutional rights is "a question

law, subject to resolution by the

at 73.

But

if there

is a

judge not the jury."

factual dispute,

dispute must be resolved by a fact finder."

question of
fact

actions

whether the

judge may intercede

of
Id.
__

"that factual

Id.
__

The precise

and play

that

finder role appears not to have been clearly decided by

the Supreme Court.

Some courts, consonant

with the Seventh

Amendment, have

preserved the

jury through special

disputes of
judge.

fact finding function

interrogatories to the

of the

jury as to

the

fact, reserving the ultimate law question to the

See King v. Macri, 993 F.2d 294, 299 (2d Cir. 1993);
___ ____
_____

Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.), cert. denied, 498
______
_____
_____ ______
U.S. 967 (1990); Lubcke v. Boise City/Ada Cty. Housing Auth.,
______
_________________________________
124 Idaho 450,
v.

Mayer, 23
_____

860 P.2d 653, 667 (1993);

F.3d 642,

649 (2d

facts were disputed, issue of

jury),

cert.
_____

Skrutski, 62
________

denied,
______

115

Cir. 1994)

S.

Ct.

instructed,

may

Brandenburg v.
___________
(jury

is

721 (1995);

F.3d 485, 491 (3d Cir.

disputed issues

of

decide

issue

of

Karnes
______

(5th Cir. 1993) (if there

of

fact,

jury,

qualified

211, 216

qualified

properly
immunity);

(6th Cir.

1989)

immunity when

issue

depends upon which version of the facts the jury finds).

-88

v.

1995)(same); Presley v.
_______

material

Cureton, 882 F.2d

_______

final arbiter

(when material

qualified immunity was for the

City of Benbrook, 4 F.3d 405, 410

_________________
remain

see also Oliveira

________ ________

the basic qualified immunity

1373

(quoting Burns v.
_____

Cir. 1990)).

First,

analysis.

Loranger, 907 F.2d

________

the court

constitutional right asserted

established"

at the

Second,

the court

situated

in the

Hegarty, 53
_______

time

must ask

233, 235-36 (1st

must establish

by the plaintiff

of the

alleged

whether "a

same circumstances

F.3d at

whether the

was "clearly

violation.

Id.
___

reasonable official

should have

understood

that the challenged conduct violated that established right."

Id. (quoting Burns, 907 F.2d at 236).

___
_____

Whether

established" is

Holloway,
________

rights

a question of law

114 S.

determining

the

Ct. 1019,

qualified

alleged

are

for the court.

1023 (1994).

immunity, the

"clearly

Elder v.
_____

For

purposes of

officer's

actions are

measured by a standard of "objective legal reasonableness . .

. in light of

at

the legal rules that were

the time [they] were taken."2

clearly established

Anderson v. Creighton, 483

________
_________

U.S. 635, 639 (1987) (internal quotation omitted).

The

summary

Supreme

judgment

undermined,

in

Court, recognizing

qualified

has held that

that

immunity

a very broad

cases

the use

of

could

be

articulation of the

____________________

2.

This court has noted that,

at least in police misconduct

cases, the objective reasonableness standard for liability is

most

likely

the

same

as

that

for

qualified immunity

defense.

Roy v. Inhabitants of the City of Lewiston, 42 F.3d

___
___________________________________

691, 694

(1st Cir. 1994).

But see Oliveira, 23 F.3d at 648___ ___ ________

49 (maintaining that the two standards are distinct).

event,
for

In any

we draw on the cases decided in the liability context

guidance in

deciding

the qualified

immunity question.

See, e.g., Graham v. Connor, 490 U.S. 386, 397 (1989).

___ ____ ______
______

-99

"clearly"

established

law

at

the

time

of

the

alleged

violation is inappropriate:

[T]he
have

right the
violated

established"
and

hence

contours

official is
must

in

of

sufficiently

have been

a more

more

alleged to
"clearly

particularized,

relevant, sense:
the

right

clear

that

must
a

The
be

reasonable

official would understand that what he is

doing violates that right.

Anderson, 483
________

U.S. at 640.

Without such a

rule, the Court

said, "[a] passably clever plaintiff would always be able

identify

an

abstract

clearly established

right

that

to

the

defendant could be alleged to have violated," id. at 640 n.2,

___

and so defeat summary judgment.3

The Court

great

has

a specificity

that the officer would

the

very

action

unlawful."

against

in

also warned

in the

"clearly established

such

question ha[d]

previously

at 640.

misapplication

immunity doctrine was given in

511 (1985), a

too

law" such

be granted qualified immunity "unless

Anderson, 483 U.S.

________

exactly

against requiring

warning cited

been

held

An earlier warning

of

the

qualified

Mitchell v. Forsyth, 472 U.S.

________
_______

in Anderson.
________

In Mitchell
________

the

court noted:

We do

not

intend

to

suggest

official is always immune

that

an

from liability

____________________

3.

Similarly, we note, a

"passably clever" defendant

might

characterize the right involved in such broad terms as to say

such

official

broad articulation
to understand that

could

not

what he is

permit a

reasonable

doing violates that

right and so the right was not "clearly established."

-1010

or suit for

a warrantless search

merely

because the warrant requirement has never

explicitly been held to apply to a search
conducted in identical circumstances.

472 U.S. at

535 n.12.

The proper

characterization of

the

"clearly established law" is implicated in this case.

The Shooting
____________

Plaintiff asserts two Fourth Amendment

to

the shooting,

claim

as

to

reasonable

executing

both independent

the

law

warrant.

enforcement

Plaintiff

agent

dead run, in plain

close range,

and not

reasonable

purpose."

acting

argues

that "[n]o

believe

that

notice

Plaintiff

clothes, with gun drawn

provide that individual

in

of

at

with adequate

his

identity

and

his

lawful

also argues

that the

facts of

record

"are sufficient to raise

whether

could

Fourth Amendment

a search warrant the law allowed him to surprise a

suspect on a

and

of her

theories as

a material and genuine issue

[Detective] Gunter

in self defense."

had a

reasonable belief

as to

he was

She claims that the "resolution of

these issues is an inherently

as

no other

officers

fact-based matter for the jury

observed the

alleged conduct

of St.

Hilaire in reaching for the weapon."

The latter claim is, we

believe,

claim, that

were

without merit.

required

to

The first

identify

themselves

and

the police

their

lawful

purpose, however, raises difficult issues.

Plaintiff argues that summary judgment was improper

because

there were material facts in dispute.

-1111

We agree that

there is, on the record, a dispute of fact as

police did

identify themselves.

St.

to whether the

Hilaire's first words,

as he sat with a bullet hole in his neck, were to ask why the

police

had

not identified

question at the

that the

hospital and

police

did

not

inference

can be drawn from

officers

that

identifications

themselves.

told his nurses

inference could be

by

and his

identify themselves.

While

this

wife

an

the deposition testimony of the

St. Hilaire

given

He repeated

simply

the

drawn that

did

police,

the police

not

another

did not

hear

the

plausible

identify

themselves.

"freeze" did

not hear the word

the

police

together.

passing motorist

testimony is

Where

that

who

heard the

police say

"police" mentioned, although

the two

"inferences to

words

be drawn

were uttered

from the

web of

facts are disputed and unclear -- and are likely to depend on

credibility

judgments," there is a

dispute of fact.

Prokey
______

v. Watkins, 942 F.2d 67, 73 (1st Cir. 1991).

_______

The existence of a factual dispute does not end the

inquiry.

In summary

judgment terms, the disputed

fact must

be

material.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

________
___________________

248

(1986).

In the context of a qualified immunity defense,

the

legal

determine if

questions

for

the dispute

the

court

is material.

to

decide

Here,

may

well

the district

court acknowledged that the plaintiff's argument raised "more

troubling

questions."

The

court

also

assumed,

without

-1212

deciding, that plaintiff had raised a genuine factual dispute

as

to

whether

approached St.

defendants

identified

Hilaire's vehicle.

themselves

St. Hilaire v.
____________

as

they

City of
_______

Laconia, 885 F. Supp. 349, 357 n.2 (D.N.H. 1995).

_______

The court nonetheless entered summary

defendants, on

any

"clearly

the grounds

established"

Hilaire's Fourth

seizure

before

that defendants did

law.

it

obligation

It

Amendment rights

actually occurred and

the seizure.

n.3.

It

whether

there

was

under

the

Fourth

becomes

obligation was

necessary

and

reasoned

did not attach

that

St.

until the

reasoned that the

clearly

Amendment

unreasonably to create circumstances

force

not violate

that the shooting constituted

Id. at 357
___

was

judgment for

if

for

issue

established

police

not

where the use of deadly

so,

"clearly established."

whether

Id. at
___

any

356-57.

such

It

said there was no such clearly established obligation.

The

grounded

on

district

law from

court

analysis

was

other Circuits.

(citing Drewitt v. Pratt,

_______
_____

reasoned

See id.
___ ___

999 F.2d 774, 780 (4th

and

at 357-58

Cir. 1993)

(look only to whether it was reasonable for police officer to

shoot in the

Cole
____

circumstances as they existed

v. Bone,
____

993

F.2d 1328,

1333

at that moment);

(8th Cir.

1993)

("we

scrutinize only the seizure itself, not the events leading to

the seizure");

Cir. 1992)

Carter v. Buscher,
______
_______

973 F.2d 1328,

("[P]re-seizure conduct is not

-1313

1332 (7th

subject to Fourth

Amendment scrutiny.")).

error and to

in

believe that reasoning to

create some of the difficulties

Mitchell and
________

ground that

We

Anderson.
________

We

nonetheless

the factual dispute as to

be in

warned against

affirm on

the

whether the defendant

officers identified themselves as they approached St. Hilaire

is immaterial as a matter of law.

We

first

reject

defendants'

analysis

that

the

police

officers'

"reasonableness"

actions

under

moment of the shooting.

with Supreme

Circuit.

Court

the

need

Fourth

be

examined

Amendment

for

only at

the

We believe that view is inconsistent

decisions

The Supreme Court in

and

with

the

law

of

this

Brower v. Inyo, 489 U.S. 593

______
____

(1989), held that once it has been established that a seizure

has occurred,

government

the court

should examine

officials leading up to the

held that petitioners' decedent

into a police roadblock

the actions

seizure.4

of the

The Court

was "seized" when he crashed

set up in order to stop

his flight.

____________________

4.
499

The district court's citation of California v. Hodari D.,

__________
_________
U.S. 621 (1991), is inapposite.

Supreme

Court

in

Hodari
______

The question before the

was whether

the

defendant,

who

discarded

cocaine while

being pursued

by police,

had been

"seized" at the time he dropped the drugs, for the purpose of

determining whether the
seizure.

Id. at 623.
___

drugs were the

seizure

requires an examination of the

the circumstances, but whether there

at all.

We

illegal

Thus, the question was not whether the

seizure was reasonable, which

__________
totality of

fruit of an

do not

read this

courts from examining circumstances

case

had been a

as forbidding

leading up to a seizure,

once it is established that there has been a seizure.

________________________________________________________
understand Hodari to hold that the Fourth Amendment
______
come into play unless
______

there has been a seizure,

does not

not that it

does not come into play until there has been a seizure.
_____

-1414

We

"We think it enough for a seizure that a person be stopped by

the very instrumentality

order

to achieve

that

set in

motion or put

result."

Id. at
___

599.

in place

The

in

Court

remanded the cause for a determination of whether the seizure

was "unreasonable"

in light of petitioners' allegations that

the

been set

roadblock had

likely

Drinski,
_______

to

kill

up in

the decedent.

19 F.3d 1143, 1150

such a

Id.;
___

see
___

manner as

to be

also Plakas
____ ______

(7th Cir.) ("[W]e

v.

carve up the

incident into segments and judge each on its own terms to see

if the officer was reasonable at each stage."), cert. denied,

_____ ______

115 S. Ct. 81 (1994).

This

approach.

court

In Hegarty,
_______

actions leading up

police

has

officers

endangering the

this

to the

court examined

were attempting

safety

of

of focusing solely

Hegarty

was acting

in

followed

to

arrest

four campers.

shooting (Hegarty had picked

the

similar

of

a woman

the

whom

for recklessly

53

on whether the

self-defense at

each

mortal wounding of

Instead

direction of the

recently

F.3d

1367.

officer who shot

moment of

the

up a rifle and raised it in the

officers and ignored their demands

to drop

it), the court examined all of the actions of the officers to

determine whether there was

and

whether

forcible,

there were

probable cause to arrest Hegarty

exigent

warrantless, nighttime

circumstances

entry

into her

to allow

dwelling.

Id.
___

at 1374-79.

Similarly,

in Roy v.
___

Lewiston, this court

________

-1515

examined all of the surrounding

whether

the police

apparently

tried to

circumstances in determining

acted reasonably:

kick

and strike

"Roy was

at

armed; he

the officers;

he

disobeyed repeated instructions to

put down the weapons; and

the officers had other reasons . . . for thinking him capable

of assault."

42 F.3d at 695.

This focus on

the moment of

district court to conclude that

was any

of police

risk

the issue was whether

clearly established constitutional duty

to avoid

creating situations which

of use of deadly

there was no such

973

the shooting led

F.2d 1328,

force.

The

there

on the part

increased the

district court concluded

generalized duty.

1331-33 (7th Cir.

the

Cf. Carter
___ ______

1992) (reading

v. Buscher,
_______

Brower to
______

mean that courts should consider reasonableness of seizure in

totality of circumstances, but should not consider whether it

was reasonable

for the police to

create the circumstances).

But

at the

core

of

plaintiff's

case

is

not

the

broad

contention that the police have a duty to reduce the risk

violence.

"duty"

of

Such a

contention itself creates a risk

that the

is so broadly defined that it gives inadequate notice

what would violate the

whether those specific

before.

of

duty and thus

facts have occurred

Plaintiff instead

would fall back on

in the case

makes a narrower,

claim.

-1616

law

more specific

Plaintiff

warrant,

the

contends

Fourth

that

in

Amendment's

"unreasonable

searches"

themselves as

police and state their

theory

is

that

themselves, St.

if

the

requires

police

Hilaire would

the

had

executing

prohibition

police

purpose.5

properly

have known they

search

against

to

identify

Plaintiff's

identified

were police,

would not have himself felt endangered when he saw a stranger

approach

with a gun in his hand,

and that St. Hilaire would

not have made a movement in the direction of his gun.

that

movement

which led

Detective Gunter

to fire

It is

his own

weapon.

There is

some additional support in the

plaintiff's theory.

dealings.

record for

St. Hilaire and the police had had prior

In each, the police identified themselves and

St.

Hilaire did not threaten them.

It

falls to

right allegedly

the court

violated

time of the incident.

clearly established

to determine

was "clearly

whether this

established" at

the

"Whether an asserted federal right was

at a particular

time, so that

a public

____________________

5.

Plaintiff

relies

on Tennessee
_________

v.

Garner,
______

471 U.S.

(1985), which held that the Fourth Amendment prohibits use of

deadly

force to prevent the

escape of an apparently unarmed

suspected felon unless it is

necessary to prevent the escape

and

the

suspect

officer
poses

has

probable cause

significant

to

threat of

believe
death

or

that the
serious

physical injury

to the

officer or

establishes that "apprehension by the

a seizure

subject to

Fourth Amendment."

others.

Garner
______

use of deadly force is

the reasonableness requirement

Id. at 6.
___

not resolve immunity issues

indeed

of the

But Garner, while helpful, did

______
in that case, nor does

it do so

here.

-1717

official who

immunity

allegedly violated

the right has

from suit, presents a question of law."

no qualified

Elder, 114
_____

S. Ct. at 1022.

Plaintiff

relies on

the

Supreme

Court's

recent

decision in Wilson v. Arkansas, 115 S. Ct. 1914 (1995), which

______
________

held

that the

depended

in

announced

reasonableness

part

their

on

whether

presence and

thus incorporating

of the

law

search of

a dwelling

enforcement

authority prior

the common law "knock

officers

to entering,

and announce" rule

into the Fourth Amendment.

Assuming arguendo
________

plaintiff's

Wilson merely
______

case,6

that

plaintiff's

the Wilson
______

argument succeeds

restated what was already

constitutional law at the time of

rule

supports

only

if

clearly established

the shooting in 1990.

See
___

Davis v.
_____

to

Scherer, 468 U.S. 183

_______

a pretermination or

(1984) (constitutional right

prompt post-termination

hearing was

____________________

6.

Fourth

Amendment

distinction
example,
search

law

in

some

the

Fourth Amendment

One

of the occupant

broader

of a vehicle

of vehicles are permitted even

emergency circumstances.

explanation

found

expectation
function

in

for the

vehicles

of

privacy

is
in

is transportation

residence or

See generally 1
___ _________

433 U.S. 1, 12

has

vehicle

it seldom

as the repository of

contents are in plain view."

"[o]ne

motor

and

of

lesser

because

serves as

personal effects . .

its
one's
. .

where both its occupants and

United States v. Chadwick,
_____________
________

(1977) (quoting Cardwell v. Lewis,

________
_____

583, 590 (1974)).

3.7

different protection

that

It travels public thoroughfares

its

a slightly

a
For

R. LaFave & Jerold H. Israel, Criminal Procedure

__________________

(1984).
items

permits

pursuant to the arrest

there are not

Wayne

recognizes

between a person's home and a person's car.

and some warrantless searches

if

contexts

417 U.S.

-1818

not

yet

clearly established

at

time of

discharge

and it

availed plaintiff not that defendant state officials violated

state

because

administrative

requiring

such

hearing

1983 protects constitutional rights); Elder, 114 S.

_____

Ct. at 1023

federal

regulations

("[T]he clearly established right

right."); Harlow, 457 U.S.

at 818.

[must] be [a]

Thus, in order

______

for

the plaintiff

have

been

to prevail,

clearly

rooted

jurisprudence in 1990.

the

time

of the

the notice

in

the

requirement must

Fourth

Amendment

Plaintiff's argument fails because at

shooting

the notice

requirement

was not

clearly of constitutional dimension.

The

squarely

held

announcement]

under

the

Court

that

is an

in

Wilson
______

this

noted that

[common

element of

Fourth Amendment."

law]

it

had

principle

the reasonableness

115 S.

Ct.

"never

[of

inquiry

at 1918.

The

Supreme Court granted certiorari in Wilson precisely in order

______

to

resolve a conflict among

common-law

notice

state courts as

requirement

was

to whether the

part

of

the

reasonableness inquiry

1916.

had

The Court noted

been so

held, but

under the

Fourth Amendment.

that in California

in Massachusetts,

Id. at
___

and Illinois, it

it had

been held

merely a rule of

common law, not constitutionally compelled.

Id. at 1916 n.1.

___

The highest court in New Hampshire had held

only

that there was a common law rule that "police officers,

before forcibly entering

a dwelling, should

-1919

knock, identify

themselves and their purpose,

v. Jones,
_____

and demand admittance."

127 N.H. 515, 503 A.2d 802, 805 (1985).

in Jones further held that this

_____

common law"

but did

failure

knock and

to

subsequent

entry

not

foreclose the

violate

possibility that

be

the

so flagrant

state

prohibition against unreasonable searches

at 805-06.

the

that a

constitution's

and seizures.

Id.
___

The issue of whether the search at issue violated

federal constitution

court.

The court

rule "ha[d] its basis in the

announce may

could

State
_____

Id. at 805.
___

was not

Cf. Prokey, 942

___ ______

before the

New Hampshire

F.2d at 72 n.5 (looking

to

Maine law

definition of

probable

cause as

to immunity

question).

The First Circuit has

in violation

Fourth

of the "knock

Amendment,

it

federal

"knock

of

applicable

to federal

officers,

has

and

violated the

considered

alleged

announce"

statute

18 U.S.C.

3109.

See,
___

United States v. One Parcel of Real Property, 873 F.2d

_____________
___________________________

7, 9 (1st Cir.),

States,
______

F.2d

and announce" rule

although

violations

e.g.,
____

the

not decided whether a search

cert. denied sub nom. Latraverse

_____ ______ ___ ____ __________

493 U.S. 891

(1989); United States

_____________

902, 908-09 (1st Cir. 1983).

at the time of

v. United
______

v. DeLutis, 722
_______

Thus, the established law

the shooting was that the

notice requirement

was

embodied in

though,

New Hampshire's

clearly

established

common law.

in

this

constitutional requirement until Wilson.

______

In a

It

was not,

Circuit

as

1983 action,

-2020

plaintiffs must show

clearly established.

the constitutional
______________

right involved

Davis, 468 U.S. at 194.

was

Accordingly,

_____

under

Harlow
______

the

defendants

are

entitled

to

qualified

immunity on this theory.

As

disputed

to

the

facts

as

to

reasonable belief he

St.

Hilaire,

dispute.

Gunter

we,

plaintiff's

whether

theory

Detective

reasonable, and

like

that

the

district

split second

it is not the

guess the decision.

there

Gunter

were

had

court, see

no

such

The judgment Detective

was

at the

role of the court

very

least

to second-

See, e.g., Hegarty, 53 F.3d at 1377; see

___ ____ _______
___

also Hunter, 502 U.S. at 229; Anderson, 483 U.S. at 641.

____ ______
________

The Search Warrant.

___________________

was acting in self-defense when he shot

See 885 F. Supp. at 356-57.

___

made in

that

Whether

or not

there was

probable cause

for the

warrant, defendants are entitled to qualified immunity unless

"the warrant application is so lacking in indicia of probable

cause

as

to

unreasonable."

render

official

Malley v.
______

belief

Briggs,
______

475

in

its

U.S. 335,

existence

344-345

(1986).

The facts presented in

not disputed.

We are thus

the warrant application are

left with the question of whether

defendants are entitled to qualified

law.

not

Fed. R. Civ. P. 56(c).

obtain

immunity by

immunity as a matter of

Recognizing that the police may

relying

-2121

on

the

judgment

of

the

judicial

defendants

officer

argue

probable cause and

not

be called

issuing

that

the

there

were

demonstrates.

under

Malley,
______

reasonable

their belief they had

unreasonable.

undisputed record

warrant

indicia

the

of

probable cause can

That

is, indeed,

confidential

told Deputy Dupuis that St. Hilaire was selling

what

the

informant

cocaine from

Laconia Auto Wrecking,

Hilaire.

Belmont

which was owned

and operated by

Dupuis consulted with detectives at the Laconia and

Police

Departments

who

had

worked

confidential informant on prior occasions.

told Dupuis that the

that

arrests and

convictions of

led

to

seizures of

controlled purchase at Laconia

was

the

positive for

cocaine.

St.

was going

Hilaire

cocaine.

the

detectives

Auto Wrecking.

substance

The

contraband

the

The informant

The substance

A second controlled

obtained

also

informant also told

to New

and

Gunter in order to make a

positive for cocaine.

made;

These

several persons.

then met with Dupuis and Detective

purchased tested

with

informant had twice previously provided

information

purchase

St.

York

to "score"

tested

Dupuis that

load of

Airline records confirmed that St. Hilaire had made

a reservation to fly to New

York around the same time as the

informant's report.

Summary

judgment in

favor of

the City

of Laconia, the Town

Belknap,

is affirmed because there

the municipalities,

of Belmont and

-2222

the County of

is no evidence, even had

plaintiff shown a deprivation of St. Hilaire's constitutional

rights,

that it

pursuant to a

was as

a result

"custom or

of official

usage" of the

action taken

municipality.

See
___

Monell v. New York City Dep't. of Social Servs. 436 U.S. 658,
______
_____________________________________

691 (1978).

Other than

this single incident,

there is

no

evidence even proffered to show such a municipal

"custom and

usage."

is

Evidence

insufficient to

of

establish

single

a "custom

incident

or usage."

usually

Mahan
_____

v.

Plymouth County House of Corrections, 64 F.3d 14, 16-17 (1st

_____________________________________

Cir. 1995).

Municipal Defendants
____________________

The

claims

against

the

municipal

defendants

necessarily fail because we find there was no deprivation

St.

Hilaire's

reasonable

clearly

ground

to

established

believe

the

rights

warrant

and

there

of

was

supported

by

The judgment of the district court is affirmed.

_______________________________________________

No
__

probable cause.

costs are awarded.

__________________

-2323