Summary:
The decedent, a deaf man who had a psychiatric history, appeared in a
parking lot with a high-powered rifle to protest treatment of the disabled.
Police responded, surrounding him and ultimately fatally shooting him.
While one could speculate that the standoff might have been resolved differently had one or more officers been proficient in American Sign Language, one could only reasonably conclude that the officers trained their weapons on the decedent because he was carrying a high-powered rifle in a crowded shopping plaza – and not because of his audio disability. The ADA did not oblige officers to accommodate the decedent's hearing disability during the standoff.
“The fact that [the deceased] did not literally point
his rifle at anyone until the final seconds before his death – even going so
far as to communicate that he would not shoot the police but rather wanted them
to shoot him – does not raise a triable issue whether a threat to human safety
existed.
“The situation, in which a man with a history of
psychiatric treatment was marching with a high-powered rifle at midday in a
crowded shopping plaza, inherently posed a safety threat.
“No one could know whether he would continue marching
with his rifle shouldered, lay it down or (as he eventually did) decide to aim
it at someone. No one could know whether he might decide to fire his weapon or
whether, even if he did not, his gun might discharge accidentally.”
The defendants were
entitled to summary judgment as to the Americans with Disabilities Act claim.
Vincent v. Town of Scarborough, #02-239, 2003 U.S. Dist. Lexis 20910;
confirmed, 2003 U.S. Dist. Lexis 22934 (D. Me. 2003).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
Susan Vincent and Christina Cookson,
personal representatives of the Estate of James Levier,
Plaintiffs
v.
Town of Scarborough, et al.,
Defendants
Civil No. 02-239-P-H
2003 U.S. Dist. Lexis 20910
November 20, 2003, Decided
Recommended Decision on
Defendants’ Motions for
Summary Judgment
and Memorandum Decision
on Motions to Strike
David M. Cohen
United States Magistrate Judge.
Defendants Town of Scarborough (“Town”), the Scarborough Police Department (“SPD”) and Scarborough police officers Robert Moulton, Robert Moore and Ivan Ramsdell (collectively, “Town Defendants”), as well as defendants the Maine State Police (“MSP”), Colonel Michael R. Sperry and Trooper Mark A. Sperrey (collectively, “State Defendants”) seek summary judgment as to all counts against them in this action brought by Susan Vincent and Christina Cookson (“Plaintiffs”) as personal representatives of the estate of Jamies Levier, who was shot and killed by police in Scarborough, Maine on March 16, 2001. See Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell’s Motion for Summary Judgment, etc. (“Town S/J Motion”) (Docket No. 11) at 1, 20; Amended Motion for Summary Judgment by the Maine State Police, Colonel Michael R. Sperry and Trooper Mark A[.] Sperrey (“State S/J Motion”) (Docket No. 14) at 1-2.
Incident thereto, the Plaintiffs, the Town Defendants and the State Defendants (both groups, “Defendants”) all have filed motions to strike. See Plaintiffs’ Motion To Strike Portions of Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell’s Statement of Material Facts (“Plaintiffs’ Motion To Strike”) (Docket No. 17); Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell’s Motion To Strike Plaintiffs’ Statement of Additional Facts, etc. (“Town Defendants’ Motion To Strike Additional Facts”) (Docket No. 25); Defendants Town Of Scarborough, Robert Moulton, Robert Moore and Ivan Ramsdell’s Motion To Deem Material Facts Admitted or, in the Alternative, Motion To Strike Plaintiffs’ Response to the Defendants’ Statement of Material Facts (“Town Defendants’ Motion To Strike Opposing Facts”) (Docket No. 26); Motion To Strike Plaintiffs’ Statement of Additional Facts by State of Maine Defendants Maine State Police, Colonel Michael R. Sperry and Trooper Mark A. Sperrey (“State Defendants’ Motion To Strike”) (Docket No. 30). For the reasons that follow, I grant in part and deny in part the Plaintiffs’ Motion To Strike, the Town Defendants’ Motion To Strike Opposing Facts and the State Defendants’ Motion To Strike, grant the Town Defendants’ Motion To Strike Additional Facts, and recommend that the motions for summary judgment be granted.
I. Summary
Judgment Standards
Summary judgment is appropriate only if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In this regard, ‘material’ means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant . . . . By like token, ‘genuine’ means that ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party . . . .’” McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)(citations omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, “the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue.” National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (citing Celotex, 477 U.S. at 324); Fed. R. Civ. P. 56(e). “This is especially true in respect to claims or issues on which the nonmovant bears the burden of proof.” International Ass’n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 200 (1st Cir. 1996)(citations omitted).
II. Factual
Context
A. Town S/J
Motion
1.
Plaintiffs’ and Town Defendants’ Motions To Strike
a. Plaintiffs’ Motion To Strike
The Plaintiffs’ motion to strike paragraphs 9, 96, n1 99, 101, 106, 108, 121, 136, 138-39, 142, 152, 155, 176, 228, 232, 237-38, 240-41, 260, 264, 275 and 277 of the Town Defendants’ statement of material facts, see Plaintiffs’ Motion To Strike at 1-2, is granted in part and denied in part as follows:
n1 This paragraph is misidentified on the first page of the Plaintiffs’ brief as “92.” Compare Plaintiffs’ Motion to Strike at 1 with id. at 2.
1. Paragraph 9: Granted. While SPD chief Moulton is qualified to explain why his department has chosen not to adopt a specific policy, paragraph 9 is worded in such a way as to proclaim as a fact that “the presence of disability [does] not change the legal standards applicable to an officer’s lawful use of force.” Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell’s Statement of Uncontroverted Facts in Support of Their Motion for Summary Judgment (“Town Defendants’ SMF”) (Docket No. 12) P 9; see also Affidavit of Robert Moulton (“Moulton Aff.”), attached as Exh. 1 to Town Defendants’ SMF, P 1. Moulton is not qualified to offer such an opinion.
2. Paragraph 96: Denied. The testimony of SPD officer Thomas Chard, on which paragraph 96 is based, stems from direct personal observation. See Affidavit of Thomas Chard (“Chard Aff.”), attached as Exh. 4 to Town Defendants’ SMF, PP 1-2, 5. Chard is competent to describe the gestures he observed Levier make and his contemporaneous understanding of what those gestures meant, even assuming that, as a result of his lack of knowledge of American Sign Language (“ASL”), he did not understand the meaning of some or all of those gestures.
3. Paragraph 99: Denied. While the Town Defendants’ assertion that SPD officer Jeff Greenleaf “had to change positions to keep his cruiser between himself and the gunman” is a conclusion, it is supported by the stated fact that the distance between Greenleaf and Levier kept shifting as Levier moved – a circumstance in which the First Circuit has instructed that a conclusion is cognizable as a fact. See Town Defendants’ SMF P 99; Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989) (“Most often, facts are susceptible to objective verification. Conclusions, on the other hand, are empirically unverifiable in the usual case. They represent the pleader’s reactions to, sometimes called ‘inferences from,’ the underlying facts. It is only when such conclusions are logically compelled, or at least supported, by the stated facts, that is, when the suggested inference rises to what experience indicates is an acceptable level of probability, that ‘conclusions’ become ‘facts’ for pleading purposes.”); see also Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001) (citing Dartmouth in summary-judgment context for proposition that “while the line between facts and non-facts often seems blurry, courts nonetheless must strive to plot it”).
4. Paragraph 101: Denied. The Town Defendants’ assertion that SPD officer Robert Moore had to change positions “for his own safety” is a conclusion; however, it is buttressed by the stated fact that Moore moved from side to side of the pickup truck behind which he had sought cover as Levier paced back and forth. See Dartmouth, 889 F.2d at 16.
5. Paragraph 106: Denied. The Town Defendants’ assertion that the situation was “very dangerous” is a conclusion; however, it is premised on affiant Greenleaf’s observations of the way Levier was acting and the fact that Levier was holding what Greenleaf knew to be a high-powered rifle. See Dartmouth, 889 F.2d at 16.
6. Paragraph 108: Denied. Moore, who was present at the scene, see Affidavit of Robert Moore (“Moore Aff.”), attached as Exh. 3 to Town Defendants’ SMF, PP 1-5, is competent to testify as to his state of mind on the day in question and his observations as to Levier’s appearance and conduct that day.
7. Paragraph 121: Denied. The Plaintiffs mischaracterize paragraph 121 as stating that “a civilian sign language interpreter could not be used safely.” Compare Plaintiffs’ Motion To Strike at 4 with Town Defendants’ SMF P 121.
8. Paragraphs 136, 138-39, 142: Denied. Greenleaf, who was present at the scene, is competent to testify as to his personal observations of Levier’s gestures and what he contemporaneously understood them to mean, even assuming that as a result of lack of proficiency in ASL he misunderstood some or all of them. See Affidavit of Jeff Greenleaf (“Greenleaf Aff.”), attached as Exh. 5 to Town Defendants’ SMF, PP 1-4.
9. Paragraph 152: Denied. Whether the police were responsible for the interpreter’s safety is not, as the Plaintiffs posit, a question of law, but rather a question of fact.
10. Paragraph 155: Denied. That Greenleaf heard about a plan to get the interpreter closer to Levier is not hearsay inasmuch as it is offered to show Greenleaf’s contemporaneous understanding, not for the truth of the matter asserted. See Defendants’ Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell’s Opposition to Plaintiffs’ Motion To Strike Portions of Defendants’ Statement of Material Facts (“Town Defendants’ Strike Opposition”) (Docket No. 31) at 4-5.
11. Paragraph 176: Denied. Greenleaf, who was personally present at the scene, is competent to testify concerning his observations of Levier’s actions and whether Levier “appeared to be ready to fire at someone. “ Town Defendants’ SMF P 176; see also Greenleaf Aff. PP 1-2, 5. The Plaintiffs’ argument notwithstanding, see Plaintiffs’ Motion To Strike at 5, this testimony is grounded in fact (that Levier walked toward officers and assumed a shooter’s stance) and cannot fairly be labeled a “conclusory opinion.”
12. Paragraph 179: Granted. In the circumstances, in which there is no evidence that Moore was in a position at the relevant point in time to know whether the weapon Levier was brandishing was loaded, the assertion that the officers in the group had been “threatened with deadly force” is a conclusory opinion, crossing the line demarcated in Dartmouth.
13. Paragraphs 228, 232, 240-41: Granted. An officer’s subjective beliefs as to the reasonableness and/or good faith of his/her conduct are irrelevant to Fourth Amendment and qualified-immunity analysis. See, e.g., United States v. Garner, 338 F.3d 78, 80 (1st Cir. 2003) (“whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time and not on the officer’s actual state of mind at the time the challenged action was taken.”) (citations and internal punctuation omitted); Tower v. Leslie-Brown, 326 F.3d 290, 296 (1st Cir. 2003) (“actual motives for conduct” not to be considered in evaluating qualified-immunity defense). While, as the Town Defendants posit, see Town Defendants’ Strike Opposition at 2-3, such subjective beliefs appear to be relevant to whether officers are entitled to immunity on the Plaintiffs’ state-law claims pursuant to the Maine Tort Claims Act (“MTCA”), 14 M.R.S.A. § 8101 et seq., see, e.g., 14 M.R.S.A. § 8111(1)(E) (governmental employees absolutely immune from personal civil liability for intentional acts or omissions within scope of employment unless “an employee’s actions are found to have been in bad faith”), in this case, ultimately nothing turns on the exclusion of that evidence.
14. Paragraphs 237-38: Denied. While, as discussed above, officers’ motives are irrelevant, their observations and perceptions of contemporaneous events are relevant. See, e.g., Tower, 326 F.3d at 296 (objective reasonableness of conduct judged “in light of the facts actually known to the officer”).
15. Paragraph 260: Granted. The conclusion that the “officers could not have allowed Mr. Levier to leave the perimeter” is supported not by specific facts but rather by a second conclusion: that Levier posed a danger to those who had taken refuge in the stores. Thus, the statement falls on the impermissible-opinion side of the Dartmouth line.
16. Paragraph 264: Denied. The statement that the leaders on the scene were faced with a “very complex” problem is a conclusion; however, it is buttressed by the stated facts of the open nature of the parking lot, Levier’s agitated state and his possession of a high-powered rifle. See Dartmouth, 889 F.2d at 16.
17. Paragraph 275: Granted. No factual predicate supports the conclusion that there was no guarantee that use of alternative strategies (such as firing beanbag rounds or turning the K-9 dogs on Levier) would resolve the Levier matter peaceably. See Dartmouth, 889 F.2d at 16.
18. Paragraph 277: Denied. Chief Moulton’s opinion that SPD officers who fired at Levier acted in accordance with their training and SPD policy is buttressed by his review of a surveillance videotape that capture the shooting, informed by his knowledge of SPD training and policy in his capacity as SPD chief of police. See Dartmouth, 889 F.2d at 16; see also Moulton Aff. P 1-2, 13 & Exh. A thereto.
b. Town
Defendants’ Motion To Strike Additional Facts
The Town Defendants’ motion to strike paragraphs 280-285 and 287-315 of the Plaintiffs’ statement of additional facts, see Town Defendants’ Motion To Strike Additional Facts at 4, is granted.
The Plaintiffs concede that the court can evaluate the immunity defenses of individual defendants without consideration of the expert opinions in question, although they assert (opaquely) that “other claims do not necessarily exclude the opinions and conclusions of experts[.]” See Plaintiffs’ Opposition to the Scarborough Defendants [sic] Motion To Strike (“Plaintiffs’ Strike Opposition/Additional SMF”) (Docket No. 32). n2
n2 To the extent the Plaintiffs intend to argue that the statements in question are relevant to other legal issues, they fail to develop that argument, thereby waiving it. See, e.g., Graham v. United States, 753 F. Supp. 994, 1000 (D. Me. 1990) (“It is settled beyond peradventure that issues mentioned in a perfunctory manner, unaccompanied by some effort at developed argumentation are deemed waived.”) (citation and internal quotation marks omitted).
Inasmuch as appears, the statements in question bear on two core claims: (i) whether excessive force was deployed against Levier on March 16, 2001 and (ii) whether his rights pursuant to the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act were transgressed. See Complaint and Demand for Jury Trial (“Complaint”) (Docket No. 1) PP 43-49, 53-68; Plaintiffs’ Statement of Additional Material Facts (“Plaintiffs’ Additional SMF/Town”), contained at pages 52-62 of Plaintiffs’ Response to Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell’s Statement of Material Facts and Plaintiffs’ Statement of Additional Material Facts (“Plaintiffs’ Opposing SMF/Town”) (Docket No. 21), PP 280-285, 287-315. n3
n3 The parties agree that for purposes of the instant analysis, no distinction need be drawn between the ADA and the Rehabilitation Act. See Town S/J Motion at 9; State S/J Motion at 3; Plaintiffs’ Amended Joint Response to Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell’s Motion for Summary Judgment and Defendants Maine State Police, Colonel Michael R. Sperry and Trooper Mark A. Sperrey’s Motion for Summary Judgement [sic], etc. (“Plaintiffs’ S/J Opposition”) (Docket No. 23) at 6 n.1; see also, e.g., Parker v. Universidad de Puerto Rico, 225 F.3d 1, 4 (1st Cir. 2000). Thus, further references to the “ADA” should be understood to include the Rehabilitation Act.
To the extent the statements implicate the ADA and Rehabilitation Act claims, they consist largely of conclusory assertions that the police discriminated against Levier based on his disability and otherwise violated the ADA. See Plaintiffs’ Additional SMF/Town PP 308-11. As such, they raise no genuine issue of material fact. See, e.g., Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993) (“Although expert testimony may be more inferential than that of fact witnesses, in order to defeat a motion for summary judgment an expert opinion must be more than a conclusory assertion about ultimate legal issues.”).
To the extent the statements implicate the question of use of excessive force, I understand the Plaintiffs to be conceding that any such claim can be decided without reference to the opinions of experts Thomas Walton or R. Paul McCauley, Ph.D., at least as regards the issue of whether the individual defendants are entitled to qualified immunity. See Plaintiffs’ Strike Opposition/Additional SMF. In any event, I agree with the Town Defendants that the statements are insufficient as a matter of law to raise a genuine issue of material fact with respect to any of the Defendants’ potential liability for use of excessive force. See Town Defendants’ Motion To Strike Additional Facts at 3-4.
In a nutshell, Walton and Dr. McCauley conclude that had proper procedures, policies and/or practices been followed, including establishment of a clear chain-of-command, effective radio communication among police and a properly composed inner perimeter surrounding Levier, and had available resources been deployed, such as bean-bag ammunition, K-9 dogs and an interpreter for the deaf, Levier more likely than not would have survived the standoff of March 16, 2001. See Plaintiffs’ Additional SMF/Town PP 280-85, 287-308, 312-15. Walton and Dr. McCauley also opine that certain of the identified deficiencies contributed to Levier’s death. See id. PP 291 (lack of proper radio communications), 305 (improper setup of inner perimeter), 306 (use of police officer who was not fluent in ASL to communicate with Levier), 314 (failure of Town police command to actively and timely engage non-lethal force).
While failure to follow reasonable police policies and practices (including failure to deploy alternate means to confront an exigency) may amount to negligence on the part of responding officers and their supervisors, an expert opinion to the effect that such failings existed is insufficient – without more – to raise a genuine issue of material fact with respect to a claim of excessive force pursuant to 42 U.S.C. § 1983. See, e.g., Hegarty v. Somerset County, 53 F.3d 1367, 1377 (1st Cir. 1995) (“officers need not avail themselves of the least intrusive means of responding to an exigent situation; they need only act within that range of conduct which is reasonable; contrary rule would inevitably induce tentativeness by officers”) (citation and internal punctuation omitted); Roy v. City of Lewiston, 1994 U.S. Dist. Lexis 4686, Civ. No. 93-218-P-H, 1994 WL 129774, at *7 (D. Me. Feb. 16, 1994), aff’d, 42 F.3d 691 (1st Cir. 1994) (in absence of evidence that police chief and city were aware of advantages of use of red-pepper mace and consciously rejected them, expert’s testimony that its advantages “should have been obvious” not enough to show deliberate indifference for purposes of section 1983 excessive-force claim; “The federal courts are not in the business of dictating to municipal police departments what equipment must be made available to police officers or in requiring them to be up to date on the newest developments in controlling unruly individuals.”); see also, e.g., Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001) (expert affidavit did not raise genuine issue of material fact for purposes of excessive-force analysis inasmuch as violations of state law and police procedures not actionable pursuant to section 1983 and, in any event, “the [Fourth Amendment] reasonableness standard does not require that officers use alternative less intrusive means”).
Inasmuch as the statements in question raise no genuine issue of material fact for purposes of the Town Defendants’ motion for summary judgment, their motion to strike those statements is granted.
c. Town
Defendants’ Motion To Strike Opposing Facts
Finally, the Town Defendants ask that the court deem their initial statement of material facts admitted or, alternatively, strike an unspecified number of the Plaintiffs’ responses to those facts on the bases that the Plaintiffs’ statements are sufficiently (i) non-responsive to the Town Defendants’ statements and/or (ii) conclusory, speculative or argumentative as to violate Local Rule 56. See Loc. R. 56(c) & (e); Town Defendants’ Motion To Strike Opposing Facts at 1-2. The Town Defendants proclaim it “too cumbersome” to detail every asserted flaw. See id. at 2. However, a party seeking a court ruling on a motion to strike has an obligation at least to identify the numbered statements that are the object of its ire. Hence, I confine my ruling to the following statements expressly targeted by the Town Defendants: paragraphs 30, 32-34, 40, 44, 75-79, 149-51, 156, 164, 166, 169-71, 179-80, 188, 206, 216, 218, 228, 240, 248 and 276 of the Plaintiffs’ Opposing SMF/Town. With respect to those, the motion is granted as to the following:
Sentences 1-2, Paragraph 32: The underlying statement notes that Chard learned the gunman was Levier, a deaf man who had been involved in a prior legal proceeding against the SPD; sentences 1-2 of the responsive statement veer off on a loosely related tangent about the details of that legal proceeding. These statements should have been presented as “additional” facts.
Sentence 2, Paragraph 40; Paragraph 79: Even making allowances for the provision of expert opinion, these statements are impermissibly conclusory. See, e.g., Hayes, 8 F.3d at 92 (“Where an expert presents nothing but conclusions – no facts, no hint of an inferential process, no discussion of hypotheses considered and rejected, such testimony will be insufficient to defeat a motion for summary judgment.”) (citation and internal quotation marks omitted). Nothing in expert Walton’s affidavit illuminates their underpinnings. See generally Affidavit of Thomas Walton (“Walton Aff.”), attached as Exh. 3 to Plaintiffs’ Opposing SMF/Town.
Paragraphs 75-77: These purported qualifications are more in the nature of statements of additional facts. The underlying statements describe how Chief Moulton learned of, and first responded to, the event in question. The responsive statements address the separate issue of the SPD’s attempts to secure a sign-language interpreter.
Sentences 1-3, 8, Paragraph 78. These sentences are argumentative, not factual.
Paragraph 156. Although the Plaintiffs purport to deny most of paragraph 156 of the Town Defendants’ SMF, their responsive statements do not effectively controvert that paragraph.
Paragraph 179. Inasmuch as I grant the Plaintiffs’ own motion to strike the portion of the underlying statement referencing “deadly force,” see above, their qualifying response no longer is in play.
Paragraph 216. While affiants Mary F. Mackay and Roxanne Baker are competent, as sign-language interpreters, to testify as to the meaning of signs in ASL, they are not competent to testify as to what Levier did or did not understand. See Affidavit of Mary F. Mackay (“Mackay Aff.”), attached as Exh. 2 to Plaintiffs’ Opposing SMF/Town, P 1; Affidavit of Roxanne Baker (“Baker Aff.”), attached as Exh. 8 to Plaintiffs’ Opposing SMF/Town, P 1.
Paragraph 228. The portion of this paragraph denying (in the alternative to an objection) paragraph 228 of the Town Defendants’ SMF cites itself in support of the denial.
The motion is
denied as to the following, which are sufficiently responsive to the Town
Defendants’ statements and/or sufficiently factual to pass muster pursuant to
Local Rule 56(c): paragraphs 30, 33-34, 44, 149-51, 164, 166, 169-71, 180, 188,
206, 218, 240, 248 and 276, and sentences 3-5 of paragraph 32, sentence 1 of paragraph 40 and sentences
4-7 of paragraph 78.
2. Facts
Pertaining to Town S/J Motion
Taking into account the disposition of the foregoing peripheral motions, the Town Defendants’ and Plaintiffs’ statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56 and viewed in the light most favorable to the Plaintiffs as the non-moving parties, reveal the following relevant to this recommended decision:
Moulton commenced his employment with the SPD as a patrol officer in 1978 and was promoted to sergeant in 1984, lieutenant in 1986, captain in 1992 and chief of police in May 1999. Town Defendants’ SMF P 1; Plaintiffs’ Opposing SMF/Town P 1. He is a graduate of the Maine Criminal Justice Academy (“Maine Academy”) and the FBI National Academy. Id. P 2.
The SPD offers a minimum of forty hours of training annually to its police officers. Town Defendants’ SMF P 3; Moulton Aff. P 2. n4 In addition, officers attend training sponsored by the Maine Chiefs of Police Association, in-service training at other departments and training at the Maine Academy. Town Defendants’ SMF P 5; Moulton Aff. P 2. Annual training is required by the Maine Academy for a police officer to maintain his or her certification with the state. Town Defendants’ SMF P 6; Plaintiffs’ Opposing SMF/Town P 6. Included in this required annual training is training on the lawful use of force, including deadly force, pursuant to SPD standard operating procedure and state and federal law governing the use of force. Id. P 7. SPD officers also are given legal updates and training in other areas, such as domestic violence, sexual harassment and the ADA. Town Defendants’ SMF P 8; Moulton Aff. P 2. In March 2001 the SPD had no standard operating procedure specifically relating to the use of force, including deadly force, against persons with disabilities. Town Defendants’ SMF P 9; Moulton Aff. P 2.
n4 The Plaintiffs qualify this statement, as well as paragraphs 4-5, 8, 226-27 and 239 of the Town Defendants’ SMF, with the assertion that the annual training only tangentially covered (i) applicable disability statutes or (ii) dealing with deaf or hearing-impaired suspects. Plaintiffs’ Opposing SMF/Town PP 3-5, 8, 226-27, 239; Deposition of Jeff Greenleaf (“Greenleaf Dep.”), filed by Plaintiffs, at 11-12; Deposition of Robert Moore (“Moore Dep.”), filed by Plaintiffs, at 7, 108; Deposition of William Jipson (“Jipson Dep.”), filed by Plaintiffs, at 5-6.
Ramsdell has been an SPD officer since 1987 and became a detective in 1997. Town Defendants’ SMF P 10; Plaintiffs’ Opposing SMF/Town P 10. He graduated from the Maine Academy in 1987, obtained an associates’ degree in law enforcement technology from Southern Maine Vocational Technical Institute in 1984 and a bachelor’s degree in criminal justice from Husson College in 2002. Town Defendants’ SMF P 11; Affidavit of Ivan Ramsdell (“Ramsdell Aff.”), attached as Exh. 2 to Town Defendants’ SMF, P 1. n5 Ramsdell has also been to several schools for training on how to provide police services to crime victims with mental or physical disabilities. Town Defendants’ SMF P 12; Plaintiffs’ Opposing SMF/Town P 12.
n5 The Plaintiffs qualify this statement, noting that while Ramsdell had gone through training related to disabled crime victims, such training did not cover situations in which deaf or hearing-impaired persons were subject to a potential arrest or other police actions. Plaintiffs’ Opposing SMF/Town P 11; Deposition of Ivan Ramsdell (“Ramsdell Dep.”), filed by Plaintiffs, at 6.
Moore has been employed as an SPD officer since April 17, 1990. Id. P 13. On March 16, 2001 he was also a member of the SPD Special Response Team. Id. P 14. A Special Response Team trains monthly together and also goes to specialty schools to be trained to handle more dangerous situations than the average patrol officer has the equipment or training to handle. Id. P 15. Chard has been employed as an SPD officer since 1987. Id. P 16. He is a graduate of the Maine Academy and also has been trained as a K-9 handler through the New Hampshire Police K-9 Academy. Id. P 17. He has also been a member of the SPD Special Response Team since 1990. Id. P 18. Greenleaf has been an SPD officer since 1989. Id. P 19. He has a bachelor’s degree from the University of Southern Maine and is a graduate of the Maine Academy. Id. P 20. As part of his duties with the SPD, Greenleaf is a firearms instructor, a field training officer and the department armorer, as well as being a member of the Special Response Team, although he was not a member of that team on March 16, 2001. Town Defendants’ SMF P 21; Greenleaf Aff. P 1. n6
n6 The Plaintiffs purport to qualify this statement, Plaintiffs’ Opposing SMF/Town P 121; however, the qualification is completely unresponsive and is on that basis disregarded.
At or about 3 p.m. on March 16, 2001 Levier drove his van into the parking lot of a shopping area located just off Route 1 in Scarborough, Maine. Town Defendants’ SMF P 22; Complaint P 24. n7 Just after 3 p.m. that day, Greenleaf was on patrol helping a disabled motorist when he received a call from dispatch reporting the presence of an armed gunman in the parking lot at Shop ‘N Save and requesting that all officers on duty go to that location. Town Defendants’ SMF P 23; Greenleaf Aff. P 2. n8 Ramsdell was at the SPD police station when the call went out for officers to respond to the Shop ‘N Save parking lot to deal with a man with a gun. Town Defendants’ SMF P 24; Ramsdell Aff. P 2. He immediately left the police station, which is a short distance away, accompanied by detective Rick Rouse. Id.
n7 The Plaintiffs impliedly qualify this statement, asserting that instead of parking his van in the most crowded area of the parking lot in front of the Scarborough Shop ‘N Save supermarket (“Shop ‘N Save”), the major store in the shopping center, Levier parked his van in the most isolated and furthest row away from the major pedestrian traffic in front of the Key Bank. See Plaintiffs’ Opposing SMF/Town P 22; Mackay Aff. P 16.
n8 The Plaintiffs qualify this statement, asserting that the dispatcher stated that there was a “man with a gun” (not an “armed gunman”) in the parking lot. See Plaintiffs’ Opposing SMF/Town P 23; Deposition of Thomas Chard (“Chard Dep.”), filed by Plaintiffs, at 15-16.
Sergeant William Jipson, the Special Response Team commander, contacted dispatch at 3:22 p.m. after having been paged, and gave instructions to mobilize the tactical unit, calling in officers who were then off-duty. Town Defendants, SMF P 26; Plaintiffs’ Opposing SMF/Town P 26; Officers Chard and Moore, two members of the Special Response Team who were then off duty, went to the police station to retrieve their equipment. Id. P 27. Chard also took his K-9 dog to the scene. Id. P 28. Prior to departing the police station, Chard obtained a bullet-resistant shield. Id. P 29. The shield is resistant to certain rounds, although Chard was not sure if it would be sufficient to withstand a bullet from the high-powered rifle that the gunman was holding. Town Defendants’ SMF P 30; Chard Aff. P 4. n9
n9 The Plaintiffs qualify this statement as well as paragraph 145 of the Town Defendants’ SMF, asserting that there are shields capable of withstanding a bullet from a high-powered rifle and, in the opinion of expert Walton, such shields are essential for dealing with armed subjects who might be suicidal. Plaintiffs’ Opposing SMF/Town PP 30, 145; Walton Aff. P 6.
At the police station, Chard met with Special Response Team commander Jipson. Town Defendants’ SMF P 31; Plaintiffs’ Opposing SMF/Town P 31. Chard learned from Jipson that the gunman was Levier, a deaf man who had been involved in a prior legal proceeding against the SPD. Town Defendants’ SMF P 32; Chard Aff. P 4. n10
n10 The Plaintiffs qualify this statement as well as paragraph 80 of the Town Defendants’ SMF, asserting that Chard knew Levier had sued the SPD for its failure to provide him with a sign-language interpreter when arresting him on a warrant and, based on a staff meeting, Chard believed that the police won the case, with the court ruling that Levier was not entitled to an interpreter in that situation. Plaintiffs’ Opposing SMF/Town PP 32, 80; Chard Dep. at 22-24. The Plaintiffs further assert that (i) this was a staff meeting that would have been attended by most of the supervisors on the scene with the rank of sergeant or above, and (ii) at this meeting, the possibility of providing interpreters to Levier in the future was discussed. Plaintiffs’ Opposing SMF/Town PP 32, 80; Chard Dep. at 23, 25.
Greenleaf was the third officer to arrive on the scene, arriving just after officers Plourde and Brown, who had stationed themselves behind their cruisers in a position of cover. Town Defendants’ SMF P 33; Greenleaf Aff. P 2. n11 Greenleaf pulled around to their left side and also took a position of cover. Town Defendants’ SMF P 34; Greenleaf Aff. P 2. n12
n11 No first names are provided for officers Plourde and Brown. See Greenleaf Aff. P 2. The Plaintiffs qualify this statement, asserting that Brown, Plourde and Greenleaf all arrived “pretty much simultaneously” and by the time Greenleaf arrived, Brown and Plourde already had their weapons drawn and pointed at Levier and were ordering him to put his gun down. Plaintiffs’ Opposing SMF/Town P 33; Greenleaf Dep. at 6-8. The Plaintiffs further assert that during this entire time, Levier had his gun pointed in an upright position and was marching back and forth in front of his vehicle. Plaintiffs’ Opposing SMF/Town P 33; Greenleaf Dep. at 7.
n12 The Plaintiffs qualify this statement as well as paragraph 45 of the Town Defendants’ SMF with the assertion that in addition to taking cover, Greenleaf drew his weapon and pointed it at Levier although he was aware at the time that Levier was not committing any crime. Plaintiffs’ Opposing SMF/Town P 34; Greenleaf Dep. at 8.
Upon his arrival at the scene, Ramsdell observed that the gunman had an unobstructed path to the stores in the mini-mall. Town Defendants’ SMF P 35; Plaintiffs’ Opposing SMF/Town P 35. He obtained a shotgun loaded with “00” buckshot because he was concerned that the distance from his intended position was too far from the gunman to ensure accuracy with his pistol. Id. P 36. Ramsdell also knew that a pistol bullet can travel a great distance, and the proximity of a number of stores and people made him fear someone might be hit with a pistol round if it missed its target. Id. P 37. n13 Ramsdell gave his pistol to SPD sergeant Dave Grover, who had been shopping in one of the stores with his family and had come out to the parking lot unarmed. Id. P 38. Ramsdell moved to place himself between the gunman and the stores, taking up a position at the end of a row of parked cars, using the vehicles for cover, approximately forty feet from the cluster of officers who were the first responders and who were taking cover behind their cruisers. Town Defendants’ SMF P 39; Ramsdell Aff. PP 2-3. n14 All the officers used their vehicles for cover. Town Defendants’ SMF P 40; Greenleaf Aff. P 2. n15
n13 The Plaintiffs qualify this statement, admitting it only for Ramsdell’s state of mind or in the alternative denying it. See Plaintiffs’ Opposing SMF/Town P 37. Inasmuch as the statement on its face reflects that it is limited to Ramsdell’s state of mind, I deem it admitted.
n14 The Plaintiffs qualify this statement, noting that Ramsdell also aimed his gun at Levier. Plaintiffs’ Opposing SMF/Town P 39; Ramsdell Dep. at 23.
n15 The Plaintiffs qualify this statement as well as paragraph 87 of the Town Defendants’ SMF, asserting that, in the opinion of expert Walton and interpreter Mackay, the SPD officers did not take the need for cover seriously as evidenced by their actions leaning over the vehicles and talking among themselves and moving constantly between vehicles and in and out of the inner and outer perimeters without any regard for cover. Plaintiffs’ Opposing SMF/Town PP 40, 87; Walton Aff. P 7; Mackay Aff. P 31.
In Ramsdell’s haste to respond to the scene he had not obtained a portable radio. Town Defendants’ SMF P 156; Ramsdell Aff. P 5. Because he was taking cover behind some civilian cars, he was not close enough to any cruiser to hear radio traffic during the approximately one-hour standoff. Town Defendants’ SMF P 157; Plaintiffs’ Opposing SMF/Town P 157.
Upon his arrival Greenleaf was the closest officer to the gunman, approximately fifty to eighty feet him. Town Defendants’ SMF P 41; Greenleaf Aff. P 2. n16 Ramsdell was approximately twenty-five yards from Levier as Levier paced back and forth in the parking lot. Town Defendants’ SMF P 42; Ramsdell Aff. P 3. n17 Greenleaf could see that the gunman had a .30-.30-caliber lever-action rifle, a high-powered hunting rifle with which he was familiar. Town Defendants’ SMF P 43; Plaintiffs’ Opposing SMF/Town P 43. The gunman was holding the rifle, marching back and forth in front of a white van. Town Defendants’ SMF P 44; Greenleaf Aff. P 2. n18 Along with the other officers, Greenleaf had his weapon drawn and was aiming it at the gunman. Town Defendants’ SMF P 45; Greenleaf Aff. P 2. The officers were all trying to talk to the subject and ordering him to put his gun down. Town Defendants’ SMF P 46; Greenleaf Aff. P 2. n19
n16 The Plaintiffs qualify this statement, asserting that for a large part of the standoff Greenleaf was approximately thirty to fifty feet away from Levier and sometimes was as close as within ten feet of him depending on where Levier was walking. Plaintiffs’ Opposing SMF/Town P 41; Greenleaf Aff. P 3; Deposition of Robert Moulton (“Moulton Dep.”), filed by Plaintiffs, at 60.
n17 The Plaintiffs qualify this statement, asserting that the distance between Ramsdell and Levier was as close as forty to fifty feet when Levier was marching. Plaintiffs’ Opposing SMF/Town P 42; Ramsdell Dep. at 23-24.
n18 The Plaintiffs qualify this statement and paragraph 252 of the Town Defendants’ SMF, asserting that Levier was staging a symbolic march to protest the treatment of deaf persons in this society, marching back and forth like a soldier with his rifle in “port arms” position, with the barrel pointing up at the sky and one hand cupped underneath the stock. Plaintiffs’ Opposing SMF/Town PP 44, 252; Deposition of David Grover (“Grover Dep.”), filed by Plaintiffs, at 12; Deposition of Rick Rouse (“Rouse Dep.”), filed by Plaintiffs, at 16-17; Critical Incident Report, Sperrey, at al., Case No. 2001-028-21P (Me. Atty. Gen. Apr. 4, 2001), attached as Exh. 3 to Plaintiffs’ Response to State of Maine Defendants’ Statement of Material Fact (“Plaintiffs’ Opposing SMF/State”) (Docket No. 20), at SP 001, SP 009. The Plaintiffs further assert that police officers present did not believe that Levier was committing any crime. Plaintiffs’ Opposing SMF/Town PP 44, 252; Greenleaf Dep. at 7-9; Deposition of Richard Golden (“Golden Dep.”), filed by Plaintiffs, at 23-24. The Plaintiffs’ further assertions that Levier’s weapon was in a position in which “it presented no danger to anyone,” and that he “was not threatening any police officers or civilians at any time,” Plaintiffs’ Opposing SMF/Town PP 44, 252, are disregarded inasmuch as they are not fairly supported by the citations given.
n19 The Plaintiffs qualify this statement, asserting that at the time the officers were doing so, they knew that Levier was hearing-impaired. Plaintiffs’ Opposing SMF/Town P 46; Greenleaf Dep. at 8.
Upon Moore’s arrival, Captain Angelo Mazzone, the senior SPD officer at the scene, gave him orders to proceed to the Shop ‘N Save and have store employees keep all customers inside with the doors locked. Town Defendants’ SMF P 47; Plaintiffs’ Opposing SMF/Town P 47; see also id. P 246. On that day, Robert Sanborn was working at the Shop ‘N Save as a loss-prevention coordinator when he became aware of an incident transpiring in the parking lot outside the store. Id. P 48. The Shop ‘N Save was equipped with surveillance cameras that could be used to monitor activity in the parking lot. Id. P 49. Sanborn operated the surveillance camera so as to capture the events occurring in the parking lot. Id. P 50. He turned the camera on the gunman at 3:25:28 p.m. and filmed events until a short time after the gunman had been shot by police. Town Defendants’ SMF P 51; Affidavit of Robert Sanborn(“Sanborn Aff.”), attached as Exh. 6 to Town Defendants’ SMF, P 2. n20 The surveillance tape (“Sanborn Videotape”) was seized as evidence at the conclusion of the events. Town Defendants’ SMF P 52; Plaintiffs’ Opposing SMF/Town P 52.
n20 The Plaintiffs qualify this statement, asserting that approximately the first twenty-five minutes of what they term Levier’s “peaceful protest” was unrecorded. Plaintiffs’ Opposing SMF/Town P 51. However, the qualification is largely unsupported by the citations given and is on that basis disregarded.
Moore also went to Shirley’s Hallmark, a hair salon and a video store, racing from one to the other telling people to have everyone stay inside, get down and stay away from the windows. Id. P 53. After Moore stopped at each business, he looked at the perimeter that was forming around Levier and saw a single officer, Officer Giacomantonio, alone behind a vehicle and isolated. Id. P 54. He noticed that Giacomantonio was armed only with his service pistol, and viewed that position as a weak spot in the forming perimeter. Id. P 55. At that point, Moore could see a number of police cars at one end of the parking lot, Giacomantonio off to the side of Shop ‘N Save alone behind a vehicle, and a marine patrol officer who had responded to the scene by the Shop ‘N Save. Id. P 56. Moore ran toward Giacomantonio to see if he needed anything and to assist in maintaining the perimeter from that position. Id. P 57. Giacomantonio was too far from his cruiser to be able to hear radio traffic and did not have a portable radio with him. Id. P 58. Moore had his portable radio, and advised Giacomantonio that he would remain with him. Id. P 59. Based on his training and experience, Moore believed that the perimeter was not at that point manned enough to keep civilians outside or to keep the gunman and his weapon inside of it. Id. P 60. n21
n21 The Plaintiffs qualify this statement, admitting it only for Moore’s state of mind or in the alternative denying it. See Plaintiffs’ Opposing SMF/Town P 60. Inasmuch as the statement on its face reflects that it is limited to Moore’s state of mind, I deem it admitted.
When Chard arrived on the scene, he observed a K-9 dog belonging to the South Portland Police Department, along with its handler, fairly close to the position of the gunman in the parking lot, with the dog in the “down” position. Id. P 61. He left his dog in his parked cruiser, believing that if a K-9 unit were needed, the South Portland handler could take care of that need. Id.
As the event went on more officers arrived, and the inner and outer perimeters began to form. Id. P 63. Traffic control was established outside the inner perimeter, and a command van arrived at the outer perimeter. Id. As other officers arrived, including members of the MSP Tactical Team, they began to develop a perimeter of officers around the gunman to prevent him from going into any of the nearby businesses, in which a number of civilians had taken refuge. Id. P 64. Mark Sperrey, who had been a member of the MSP Tactical Team since January 1999, was traveling in a car with then-detective Eric Baker of the MSP when they were instructed by the MSP Tactical Team commander, Sergeant Dick Golden, to respond to the scene of the incident in Scarborough. Id. PP 65-66. n22
n22 I refer to Sperrey henceforth as “Trooper Sperrey” to avoid confusion with co-defendant Michael Sperry, to whom I refer as “Colonel Sperry.”
Upon arrival at the scene, Trooper Sperrey and then Baker met with Golden. Id. P 67. Golden instructed Trooper Sperrey to go to his truck and get a shield. Id. P 68. When Trooper Sperrey returned, Golden informed him he needed to leave and instructed him to slide into his position. Id. P 69. Golden laid his rifle on its side and slid out, and Trooper Sperrey positioned himself where Golden had been, behind a car that was angled slightly, pointing toward Levier. Town Defendants’ SMF P 70; Deposition of Mark Sperrey (“Trooper Sperrey Dep.”), filed by Plaintiffs, at 28. n23 Trooper Sperrey was armed with a Remington 700-series .233-caliber bolt-action rifle with a scope – a weapon sometimes referred to as a “sniper rifle.” Town Defendants’ SMF P 71; Plaintiffs’ Opposing SMF/Town P 71.
n23 The Plaintiffs qualify this statement, asserting that once Trooper Sperrey took over Golden’s position, he picked up Golden’s sniper rifle and trained it at Levier. Plaintiffs’ Opposing SMF/Town P 70; Trooper Sperrey Dep. at 28-29. Further, the Plaintiffs assert that Trooper Sperrey kept Levier in the crosshairs of the sights of his rifle for the rest of the confrontation, initially aiming the rifle between Levier’s eyes. Plaintiffs’ Opposing SMF/Town P 70; Trooper Sperrey Dep. at 35-36, 60.
Shortly after Greenleaf started trying to communicate with Levier, he got the impression that the gunman was hearing-impaired, observing the gunman making hand gestures that included pointing to his ear several times and pointing to the muzzle of his rifle and then to the sky. Id. P 72. The gunman was able to speak so that Greenleaf could understand him, and he stated in a kind of muffled, broken speech that he was not going to shoot Greenleaf and wanted Greenleaf to shoot him. Town Defendants’ SMF P 73; Greenleaf Aff. P 2. n24
n24 The Plaintiffs qualify this statement, asserting that Greenleaf did not know sign language but, based on what he heard and saw, believed that Levier was stating he was not going to shoot him. Plaintiffs’ Opposing SMF/Town P 73; Greenleaf Dep. at 8, 10-11.
Chief Moulton was attending a department-head meeting at Scarborough Town Hall at approximately 3:30 p.m. Town Defendants’ SMF P 74; Plaintiffs’ Opposing SMF/Town P 74. Moulton returned to the police station and was advised that there was an armed individual in the parking lot of the Shop ‘N Save Plaza, that the person had a rifle and was marching back and forth in the parking lot, that several SPD officers had reported to the scene, that South Portland’s assistance had been requested and that MSP units had also been contacted for assistance because of the number of people and high traffic volume in that area. Town Defendants’ SMF P 75; Moulton Aff. P 3. Moulton, who arrived at the scene at approximately 3:36 p.m., could see the gunman in the parking lot but did not know who he was. Town Defendants’ SMF P 76; Moulton Aff. P 6. Moulton was advised by one of his officers that the man with the rifle had been identified by Captain Marla St. Pierre as James Levier, and that she had provided that information to SPD dispatch when requesting that an interpreter be summoned to the scene. Town Defendants’ SMF P 77; Moulton Aff. P 6.
SPD dispatch was already in the process of trying to locate an interpreter prior to Moulton’s arrival on the scene. Town Defendants’ SMF P 78; Moulton Aff. P 6. n25 During the process of attempting to locate an interpreter, the perimeter around Levier had been established in part, but the task of establishing an inner perimeter was complicated by the need to avoid crossfire and the large amount of space occupied by the parking lot. Town Defendants’ SMF P 79; Moulton Aff. P 7.
n25 The Plaintiffs qualify this statement, asserting, inter alia, that the SPD dispatcher first called Ingraham Volunteers, which is not a sign-language interpreter agency, then called 774-HELP at 3:21 p.m. and was referred to Pine Tree Services (“Pine Tree”), first spoke to Pine Tree at 3:22 p.m., then at 3:26 p.m. called the MSP barracks and the South Portland Police Department to obtain their contact information for obtaining an interpreter; then at 3:30 p.m. requested interpreter information from the Portland Police Department; then at 3:31 p.m. called Governor Baxter School for the Deaf; then at 3:38 p.m. called the Department of Labor, Bureau of Licensing for an interpreter list before finally being informed at 3:45 p.m. that an interpreter was en route from Pine Tree. Plaintiffs’ Opposing SMF/Town P 78; Affidavit of Mary Edgerton (“Edgerton Aff.”), attached as Exh. 5 to Plaintiffs’ Opposing SMF/Town, P 6; Sequence of Events, attached as Exh. 6 to Plaintiffs’ Opposing SMF/Town, at 100152-53. The Plaintiffs also assert that (i) Mazzone, who was the first person in charge of the scene, had attended Maine Center of Deafness training related to police enforcement and had received information pertaining to the two proper agencies to call to obtain an interpreter, one of which was Pine Tree, and (ii) the SPD had also received information from Pine Tree regarding training opportunities. Plaintiffs’ Opposing SMF/Town P 78; Edgerton Aff. P 8.
Levier’s name was known to Moulton inasmuch as Levier had previously filed a lawsuit against the SPD that had been terminated in the Town’s favor. Town Defendants’ SMF P 80; Moulton Aff. P 6. As a result of the prior lawsuit, Moulton was aware that Levier had a history of treatment for psychiatric problems, and this information was shared over the radio. Town Defendants’ SMF P 81; Moulton Aff. P 7. n26
n26 The Plaintiffs qualify this statement, asserting that the information was shared over the radio at approximately 3:47 p.m. Plaintiffs’ Opposing SMF/Town P 81; Sequence of Events at 100153-54.
Once Jipson and Chard arrived on the scene, Jipson had Chard go with him to the staging area to meet with Moulton. Town Defendants’ SMF P 82; Plaintiffs’ Opposing SMF/Town P 82. While Jipson spoke to Moulton, Chard went to the area of the perimeter that was being set up around the gunman and stayed behind a cruiser that was to the rear of a group of three cruisers parked together. Id. P 83. The three cruisers were the closest to the area where the gunman was pacing in the parking lot. Id. P 84. Chard was armed with his Special Response Team M-16 rifle. Id. P 88. He observed some type of writing on the white van near Levier but was too far away to read it. Id. P 89.
Moore and Ramsdell observed other officers attempting to communicate with gestures to Levier, ordering him to put his gun on the ground or to lie down. Id. PP 91-92. Ramsdell saw Levier mimic the officers’ gestures back at them, but Levier did not comply with their directions. Town Defendants’ SMF P 93; Ramsdell Aff. P 3. n27 Chard observed other officers, including Greenleaf, trying to communicate with Levier with hand gestures. Town Defendants’ SMF P 94; Plaintiffs’ Opposing SMF/Town P 94. In response, Levier repeatedly pointed to his right ear and made hand gestures as if to indicate that he could not or would not hear the message that was being sent to him. Town Defendants’ SMF P 96; Chard Aff. P 5. n28 The gunman continued to pace back and forth, and appeared to be in an agitated state. Town Defendants’ SMF P 97; Chard Aff. P 3. n29
n27 The Plaintiffs qualify this statement, asserting that Levier in fact attempted on at least six occasions to express a willingness to negotiate putting his rifle down, but his signs were not understood by police. Plaintiffs’ Opposing SMF/Town P 93; Baker Aff. P 6; Mackay Aff. P 51.
n28 The Plaintiffs qualify this statement, asserting that Levier repeatedly pointed to his right ear and signed in ASL that he could not hear. Plaintiffs’ Opposing SMF/Town P 96; Baker Aff. P 13.
n29 The Plaintiffs deny this statement, see Plaintiffs’ Opposing SMF/Town P 97; however, the Sanborn Videotape, which they cite in support of their denial, does not refute the proposition that Levier “appeared agitated.”
When Levier would face Moore, Moore would use gestures to communicate to Levier that Moore wanted him to lower his weapon. Town Defendants’ SMF P 100; Plaintiffs’ Opposing SMF/Town P 100. When Moore would make these hand gestures to Levier, Levier would repeat the same thing to Moore, only in a much faster and aggressive manner. Town Defendants’ SMF P 102; Affidavit of Robert Moore (“Moore Aff.”), attached as Exh. 3 to Town Defendants’ SMF, P 4. n30 Levier was also yelling at Moore, saying things like “shoot me, shoot me!” Town Defendants’ SMF P 103; Plaintiffs’ Opposing SMF/Town P 103. Levier repeated the command “shoot me” a number of times, as well as calling out names such as “murderer” and “baby killer.” Id. P 104. Ramsdell could hear Levier challenging officers to shoot him, calling them names and yelling, “shoot me, shoot me, faggot!” Id. P 105. n31
n30 The Plaintiffs qualify this statement, asserting that the speed and manner in which a sign is made are part of the visual grammar of ASL, which can seem fast and aggressive or agitated to hearing persons who are not used to it. Plaintiffs’ Opposing SMF/Town P 102; Baker Aff. PP 3, 26. The Plaintiffs further assert that Levier was not mimicking Moore but indicating that the officers would have to put their guns down first. Plaintiffs’ Opposing SMF/Town P 102; Baker Aff. P 27.
n31 The Town Defendants further assert that the way Levier was acting and the fact that he was holding what Greenleaf knew to be a high-powered rifle made it a very dangerous situation, Town Defendants’ SMF P 106; however, the Plaintiffs deny this statement on the basis of their qualification, above, to paragraph 44 of the Town Defendants’ SMF, Plaintiffs’ Opposing SMF/Town P 106, and I view the record in the light most favorable to the Plaintiffs as non-movants.
As the standoff progressed, Moore received information over the radio that Levier was deaf and that he had some type of psychiatric issues for which he had required treatment. Id. P 107. Moore was concerned for his safety and the safety of others because Levier was armed with a high-powered rifle, appeared very agitated and showed no inclination to follow the obvious commands he was given by a number of police officers to put his weapon down. Id. P 108. n32 At one point Ramsdell saw Levier level his weapon in the direction of Shop ‘N Save, but he did not remain in this position long before he resumed pacing back and forth. Town Defendants’ SMF P 109; Ramsdell Aff. P 4. n33 Ramsdell could see that Levier had his right hand in the trigger guard and lever of the rifle and his left hand on the upper stock. Town Defendants’ SMF P 111; Plaintiffs’ Opposing SMF/Town P 111. At one point, Levier lifted his shirt to reveal that he was wearing an ammunition belt at his waist. Town Defendants’ SMF P 112; Chard Aff. P 6. n34
n32 The Plaintiffs qualify this statement, admitting it only for Moore’s state of mind or in the alternative denying it. See Plaintiffs’ Opposing SMF/Town P 108. Inasmuch as the statement on its face reflects that it is limited to Moore’s perceptions, I deem it admitted.
n33 The Plaintiffs qualify this statement, asserting that over time Levier showed signs of slowing down and becoming tired, and the officers who were present when he momentarily lowered his gun interpreted the gesture as stemming from tiredness rather than as a threat. Plaintiffs’ Opposing SMF/Town P 109; Ramsdell Aff. P 4.
n34 The Plaintiffs purport to qualify this statement, Plaintiffs’ Opposing SMF/Town P 112; however, the qualification is unrelated to the statement and on that basis is disregarded.
At approximately 3:45 p.m. the SPD was advised that an interpreter named Mary Mackay was en route and would arrive in an estimated five minutes. Town Defendants’ SMF P 113; Plaintiffs’ Opposing SMF/Town P 113. The South Portland Police Department brought its mobile command van to the scene, and Moulton met there with Golden, Jipson and Edward Googins, South Portland chief of police, who had come to see if he could assist in some way. Id. P 116. The interpreter advised Moulton that she was familiar with Levier and had some experience interpreting for him. Town Defendants’ SMF P 117; Moulton Aff. P 7. n35 She spoke about a prior incident in which he had become agitated and she had been successful in calming him down. Town Defendants’ SMF P 118; Moulton Aff. P 7. n36 Moulton asked Mackay how close she needed to get to Levier to be able to assist him in communicating other than by hand signals. Town Defendants’ SMF P 119; Plaintiffs’ Opposing SMF/Town P 119. n37
n35 The Plaintiffs qualify this statement, asserting that Mackay told the four officers she knew Levier very well and felt very capable of interpreting for him because she had done so many times in the past during emotional/crisis situations. Plaintiffs’ Opposing SMF/Town P 117; Mackay Aff. P 15. The Plaintiffs further assert that “the leader” asked Mackay if she could tell him what she was seeing from where she was, and she explained that although Levier was saying something, the distance was to great to attempt an accurate interpretation. Plaintiffs’ Opposing SMF/Town P 117; Mackay Aff. PP 17-18.
n36 The Plaintiffs qualify this statement, asserting, inter alia, that Mackay explained that (i) based on her experience working in mental health crisis situations, she was very concerned that the situation could escalate any moment in that the officers were just letting Levier stand there without communication, (ii) she believed Levier’s life could not be saved without use of interpreting services to communicate, (iii) when a deaf person is in a situation where he or she cannot communicate, the deaf person often shuts down and refuses to try to communicate, (iv) the arrival of someone whom the deaf person knows and with whom the deaf person can communicate gives the deaf person someone on whom to focus, with resulting de-escalation of the crisis, and (v) in past instances Levier had calmed down immediately after she or another interpreter had arrived (including a previous serious confrontation with the Portland police in which Levier had a large knife and was threatening to kill himself). Plaintiffs’ Opposing SMF/Town P 118; Mackay Aff. PP 24-29.
n37 The Town Defendants assert that Mackay responded that she needed to be within twenty-five to thirty feet of Levier to communicate effectively with him, Town Defendants’ SMF P 120; however, the Plaintiffs deny this, asserting, inter alia, that Mackay explained that she needed to be close enough so that she could clearly see Levier and he could clearly see her and, rather than indicating a certain distance, she suggested slowly advancing behind the parked vehicles and periodically standing up, attempting to make eye contact with Levier, and only advancing further if things did not escalate, Plaintiffs’ Opposing SMF/Town P 120; Mackay Aff. PP 19-21. For purposes of summary judgment, I view the cognizable record in the light most favorable to the Plaintiffs as non-movants.
Mackay told Moulton she felt that it might help if Levier were told that she was at the scene, and said she could teach one of the officers how to communicate “her sign” in ASL. Town Defendants’ SMF P 125; Moulton Aff. P 7. n38 Moulton requested that Greenleaf, who was on the perimeter, come back to speak with the interpreter to be taught her sign. Town Defendants’ SMF P 126; Plaintiffs’ Opposing SMF/Town P 126. Moulton thought Greenleaf was a logical choice because Levier had seemed to focus a great deal on him. Id. P 127. The interpreter showed Greenleaf how to make the sign, and he returned to the perimeter to make the sign so that Levier could see it. Id. P 133. Once there, he exposed himself to Levier and made the sign several times. Town Defendants’ SMF P 135; Greenleaf Aff. P 4. n39 The Sanborn Videotape shows Greenleaf making these attempts at 4:05:30 and 4:05:55 p.m. Town Defendants’ SMF P 137; Moulton Aff. P 7. On that tape, Levier can be seen making dismissive gestures and walking away from Greenleaf. Town Defendants’ SMF P 138; Moulton Aff. P 7. n40
n38 The Plaintiffs qualify this statement, asserting, inter alia, that Mackay had suggested every option she could think of, including simply writing her name on a piece of cardboard and showing it to Levier, an option police vetoed, but by the time she had been standing around wearing a bulletproof vest for twenty minutes, they accepted another option she suggested of teaching a police officer a few signs to convey to Levier that she was there. Plaintiffs’ Opposing SMF/Town P 125; Mackay Aff. PP 37-38. The Plaintiffs further assert that Mackay expressed concern about attempting to teach someone something so foreign and have that person attempt to convey it to someone in distress and made alternative suggestions of conveying the message, including simply holding out a sign, but those suggestions were ignored. Plaintiffs’ Opposing SMF/Town P 125; Mackay Aff. PP 37-38, 40-41.
n39 In a denial that is more in the nature of a qualification, and hence is treated as such, the Plaintiffs assert that review of the Sanborn Videotape reveals that Greenleaf did not appear to be making a proper letter “m” but instead left his hand open, which is the sign for “know” or “hat.” Plaintiffs’ Opposing SMF/Town P 135; Mackay Aff. PP 47-48. The Plaintiffs further assert that Levier is seen signing “know” or “hat” and “here” back to Greenleaf and additionally signing his frustration that the officers were not communicating to him in sign language. Plaintiffs’ Opposing SMF/Town P 135; Baker Aff. PP 14-18.
n40 In a denial that is more in the nature of a qualification, and hence is treated as such, the Plaintiffs again assert that Greenleaf did not make the sign properly. Plaintiffs’ Opposing SMF/Town P 138; Mackay Aff. PP 47-48.
To this point in time, Greenleaf felt police had been communicating effectively with Levier. Town Defendants’ SMF P 139; Plaintiffs’ Opposing SMF/Town P 139. n41 Levier appeared to understand that the officers wanted him to put his gun down. Id. P 140. The officers understood that Levier was trying to get them to shoot him and was refusing to put his gun down. Town Defendants’ SMF P 141; Greenleaf Aff. P 4. n42 Greenleaf radioed back to the command staff that signing the interpreter’s sign to Levier was not accomplishing the desired effect. Town Defendants’ SMF P 143; Plaintiffs’ Opposing SMF/Town P 143. Greenleaf then left the perimeter and went back to the interpreter to tell her they needed to try something else. Id. P 144.
n41 The Plaintiffs qualify this statement, admitting it only for Greenleaf’s state of mind. Plaintiffs’ Opposing SMF/Town P 139.
n42 The Plaintiffs qualify this statement, asserting, inter alia, that without an interpreter police officers missed the opportunity to understand other statements Levier made that could have been the start of negotiations of conditions under which he would agree to put his gun down. Plaintiffs’ Opposing SMF/Town P 141; Walton Aff. PP 13-15.
An armored shield, capable of deflecting a bullet from a high-powered rifle such as Levier carried, was brought to the scene. Town Defendants’ SMF P 145; Moulton Aff. P 8. At the command van, Moulton, Googins and Mazzone, as well as Lieutenant McCue from the South Portland Police Department and Lieutenant Nichols from the MSP, asked the two tactical commanders (Jipson and Golden) whether they could get Mackay close enough to interpret for Levier while keeping her behind the armored shield for her safety. Town Defendants’ SMF P 147; Plaintiffs’ Opposing SMF/Town P 147. The tactical commanders indicated they believed they could get Mackay close enough and still pull her back behind the shield if any danger arose from Levier. Town Defendants’ SMF P 149; Moulton Aff. P 8. n43 Moulton also was advised that two officers had shotguns with beanbag rounds, which are less lethal than conventional bullets though still characterized as lethal by the State of Maine and only authorized by the state for use where deadly force is warranted. Town Defendants’ SMF P 150; Plaintiffs’ Opposing SMF/Town P 150. n44 The tactical commanders also advised Moulton that they had two police K-9 dogs on standby, and that if they could stun Levier with a beanbag round they could send the dogs to try to hold him until the officers could reach him. Town Defendants’ SMF P 151; Moulton Aff. P 8. n45
n43 The Plaintiffs qualify this statement as well as paragraphs 206, 207 and 265 of the Town Defendants’ SMF on the basis that tactical team members’ deposition testimony conflicted as to whether a plan actually was in effect to use Mackay. Plaintiffs’ Opposing SMF/Town PP 149 206-07, 265; compare Golden Dep. at 27-29 with Jipson Dep. at 35-37. The Plaintiffs further assert, inter alia, that all necessary equipment for use in the plan Moulton claimed had been formulated was available approximately thirty minutes before Levier was shot to death by police. Plaintiffs’ Opposing SMF/Town PP 149, 206-07, 265; Moulton Dep. at 32-33, 36. That plan included the possible use of less lethal beanbag shotgun round and deployment of the two K-9 dogs on the scene if things developed in such a way as to make those tools the appropriate ones to use in response. Town Defendants’ SMF P 269; Plaintiffs’ Opposing SMF/Town P 269.
n44 The Plaintiffs qualify this statement, asserting that (i) officers with beanbag rounds were present at the scene before Levier was shot, (ii) MSP sergeant Baker’s bean-bag system could deliver five to six rounds at a time and was within the maximum effective range for its usage, and (iii) Chief Moulton was aware that Levier was trying to build up his courage. Plaintiffs’ Opposing SMF/Town P 150; Golden Dep. at 42-43; Moulton Dep. at 34, 138. The Plaintiffs’ further assertions that the beanbag rounds were present on the scene at least half an hour before Levier was shot and that Moulton gave no instructions as to the deployment of that equipment, Plaintiffs’ Opposing SMF/Town P 150, are disregarded inasmuch as they are not supported by the citations given.
n45 The Plaintiffs qualify this statement, asserting that Chief Moulton knew that two K-9 units were on the scene at least half an hour before Levier was fatally shot, yet despite knowing that these units were available and that Levier was getting bolder and trying to build up his courage, did not instruct these units as to the conditions under which the K-9 dogs could be deployed – a violation of reasonable police procedures. Plaintiffs’ Opposing SMF/Town P 151; Moulton Dep. at 32-34, 138; Walton Aff. P 17.
Mackay had offered to approach Levier alone, without use of the armored shield; however, that offer was not accepted because of concern for her safety and/or because she could provide Levier with a hostage, further complicating the already difficult situation. Town Defendants’ SMF P 153; Moulton Aff. P 8. n46
n46 The Plaintiffs qualify this statement, asserting that Mackay did not offer to approach Levier alone until near the time the police fatally shot him, when, as a result of the way he had withdrawn and was no longer trying to communicate, she was frantically concerned that something soon would happen. Plaintiffs’ Opposing SMF/Town P 153; Mackay Aff. P 57.
While Greenleaf was speaking to the interpreter, he had his back to Levier, and the interpreter was looking at Levier through binoculars. Town Defendants’ SMF P 160; Greenleaf Aff. P 5. n47 The interpreter advised Greenleaf that Levier was blessing himself. Town Defendants’ SMF P 161; Greenleaf Aff. P 5. Greenleaf turned around in time to observe Levier making the sign of the cross. Town Defendants’ SMF P 163; Plaintiffs’ Opposing SMF/Town P 163. After being on the scene for approximately twenty to thirty minutes, Chard observed Levier make the sign of the cross on himself, suddenly bring his rifle to his shoulder and assume a shooter’s stance, aiming his rifle directly at officers taking cover behind their cruisers a short distance away. Town Defendants’ P 164; Chard Aff. P 7. n48 Chard was approximately one hundred feet from Levier and had an unrestricted view of him. Town Defendants’ SMF P 165; Plaintiffs’ Opposing SMF/Town P 165. Among the officers at whom Levier’s rifle was aimed was an MSP sharpshooter who was aiming a rifle back at Levier. Id. P 172.
n47 The Plaintiffs qualify this statement and paragraph 161 of the Town Defendants’ SMF on the basis that Mackay does not remember Greenleaf ever coming back to talk to her. Plaintiffs’ Opposing SMF PP 160-61; Mackay Aff. P 43.
n48 The Plaintiffs qualify this statement, asserting, inter alia, that the Sanborn Videotape shows Levier turning his head ninety degrees and looking toward police officers on his right at approximately 4:16:16 p.m., glancing toward those officers in front of him and to his left at approximately 4:16:18 p.m., then again turning his head approximately ninety degrees, toward police officers on his right, at approximately 4:16:21 p.m., before he was shot at approximately 4:16:22 p.m. See Plaintiffs’ Opposing SMF/Town P 164; Sanborn Videotape, Exh. A to Sanborn Aff. In addition, the Plaintiffs point out that Levier did not fire his gun at Trooper Sperrey although Trooper Sperrey pulled the trigger of his malfunctioning gun at Levier not once, but three times, and (per the testimony of Greenleaf) Levier had earlier demonstrated by his actions and words that he did not want to shoot at the police but wanted the police to shoot him. Plaintiffs’ Opposing SMF/Town P 164; Trooper Sperrey Dep. at 57-68; Greenleaf Dep. at 8-10. The Plaintiffs also state that (i) at the time Levier was first shot in the right shoulder, his rifle was pointing straight ahead with his head turned at almost a ninety-degree angle to the right of his rifle, and (ii) the gunshot caused Levier to throw his weapon into the air and spin to the right, effectively disarming him, and thus there was no need to shoot him further. Plaintiffs’ Opposing SMF/Town P 164; Walton Aff. PP 25-26. The Plaintiffs further characterize the foregoing as evidencing that “Levier did not aim his rifle at any particular police officer,” Plaintiffs’ Opposing SMF/Town P 164; however, the videotape makes clear only that Levier’s attention (as opposed to his weapon) was not focused on any particular officer in the seconds before the fatal shooting. Inasmuch as appears from the videotape, Levier’s rifle remained pointed in the direction of the officers during that time interval.
Several times during the standoff, Greenleaf had witnessed Levier cocking the hammer back on his rifle, then releasing it. Town Defendants’ SMF P 174; Greenleaf Aff. P 5. n49 Levier would cock the hammer, which would make that weapon ready to fire, and put his finger on the trigger. Town Defendants’ SMF P 175; Greenleaf Aff. P 5. When Levier assumed the shooter’s stance and aimed his rifle at nearby police officers, he appeared to be ready to fire at someone. Town Defendants’ SMF P 176; Greenleaf Aff. P 5.
n49 The Plaintiffs qualify this statement as well as paragraph 175 of the Town Defendants’ SMF on the basis that when Levier did so, the muzzle of his rifle was pointed up at the sky. Plaintiffs’ Opposing SMF/Town PP 174-75; Greenleaf Dep. at 31-32.
Levier came to a stop toward Trooper Sperrey’s position and lowered his firearm, pointing it at Trooper Sperrey and then at Baker. Town Defendants’ SMF P 177; Plaintiffs’ Opposing SMF/Town P 177. There was a pause of ten to twelve seconds, and Moore could not understand why none of the officers in the group had fired. Town Defendants’ SMF P 179; Moore Aff. P 6. Moore knew there were Tactical Team members with rifles in that vicinity, and he felt that they were in a better position to shoot than he was inasmuch as he was armed only with a pistol and was further away from Levier than they were. Town Defendants’ SMF P 181; Plaintiffs’ Opposing SMF/Town P 181. n50 Moore felt justified in firing at Levier immediately upon Levier’s aiming his rifle at the officers, and did not do so only because he believed one of the officers in that group armed with a rifle was in a better position and would fire. Id. P 182. Ramsdell did not want to shoot Levier and thought that Tactical Team members with rifles in or near the threatened group of officers surely would shoot first. Id. P 183. n51
n50 The Plaintiffs qualify this statement and paragraph 182 of the Town Defendants’ SMF, admitting them for Moore’s state of mind only. Plaintiffs’ Opposing SMF/Town PP 181-82.
n51 The Plaintiffs qualify this statement, admitting it for Ramsdell’s state of mind only. Plaintiffs’ Opposing SMF/Town P 183.
Right after Levier leveled his weapon, Trooper Sperrey attempted to fire his rifle but was unable to do so because when he had attempted to switch the safety off, it did not disengage completely. Id. P 184. Trooper Sperrey disengaged the safety, again attempted to discharge the firearm and again was unable to do so because the bolt carrier group was not fully in place for the weapon to function. Id. P 185. Trooper Sperrey closed the bolt carrier group and fired his weapon at Levier. Id. P 186. He fired because he felt Levier was going to shoot him. Id. P 188. n52 The bullet struck Levier, causing the muzzle of his rifle to move up as his right shoulder area recoiled from its impact. Id. P 221.
n52 The Plaintiffs qualify this statement, admitting it for Trooper Sperrey’s state of mind only or alternatively denying it. Plaintiffs’ Opposing SMF/Town P 188. Inasmuch as the statement on its face speaks solely to Trooper Sperrey’s state of mind, I deem it admitted.
When Greenleaf heard the initial gunshot, he believed that it was the sound of Levier firing his weapon. Id. P 190. n53 Moore heard a gunshot and saw Levier move and the muzzle of his rifle rise in the air. Town Defendants’ SMF P 191; Moore Aff. P 7. n54 Levier’s hand was in the trigger and hand guard of the lever-action rifle, and Moore thought he saw Levier begin to work that action to chamber another round in the rifle. Town Defendants’ SMF P 192; Plaintiffs’ Opposing SMF/Town P 192. n55 As Moore heard the shot, he believed he saw a muzzle blast from Levier’s rifle. Id. P 193. He now understands that investigators believe Levier did not fire his rifle, but that was not his perception at the time. Id. P 194. The combined effect of hearing a gunshot at a time when Levier was in a shooter’s stance and aiming at police officers and seeing his body and rifle move in response convinced Moore that Levier had fired at the officers. Id. P 222. n56
n53 The Plaintiffs qualify this statement, admitting it for Greenleaf’s state of mind only. Plaintiffs’ Opposing SMF/Town P 190.
n54 The Plaintiffs qualify this statement, asserting that Moore alleged in his post-accident interviews and report that he saw the muzzle of Levier’s rifle flash, but he later admitted that this did not happen as post-accident reconstruction established that Levier never fired his rifle. Plaintiffs’ Opposing SMF/Town P 191; Moore Aff. P 7.
n55 The Plaintiffs qualify this statement, admitting it only for Moore’s state of mind. Plaintiffs’ Opposing SMF/Town P 192.
n56 The Plaintiffs qualify this statement, admitting it only for Moore’s state of mind. Plaintiffs’ Opposing SMF/Town P 222.
Chard heard a gunshot and saw Levier’s rifle move, with his hand in the trigger guard/lever. Id. P 196. He thought Levier had fired and was racking another round into the rifle’s chamber. Id. P 197. n57 He fired one round from his M-16 at that time, within one second or less of having heard the sound of a gunshot. Id. P 198. Moore fired three rounds at Levier in quick succession from his service pistol. Id. P 199. Ramsdell heard the gunshot and saw Levier’s right shoulder kick ba