1 16-414-cv Estate of Timothy Devine v. Fusaro UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 23 rd day of January, two thousand seventeen. PRESENT: REENA RAGGI, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges

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---------------------------- ---------------------------- -------------- ESTATE OF TIMOTHY DEVINE, Plaintiff-Appellant , v. No. 16-414-cv LOUIS FUSARO, JR., S TEVEN RIEF, MICHAEL AVERY, KEVIN COOK, Defendants-Appellees

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---------------------------- ---------------------------- -------------- FOR APPELLANT: Hubert J. Santos , Trent A. LaLima, Law Offices of Hubert J. Santos, Hartford, Connecticut. FOR APPELLEES: Matthew B. Beizer , Assistant Attorney General, for George Jepsen, Attorney General of the State of Connecticut, Hartford, Connecticut. Appeal from a judgment of the United States District Court for the District of Connecticut (Jeffrey Alker Meyer, Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on January 15, 2016, is AFFIRMED. Plaintiff Estate of Timothy Devine (“ the Estate”) appeals from an award of summary judgment on the basis of qualified immunity in favor of defendants Louis Fusaro, Jr., Steven Rief, Michael Avery, and Kevin Cook (toget her, “Defendants”), members of the Connecticut police force’s Emer gency Services Unit, on claims that they used excessive force in violation of the Four th Amendment when they attempted to end a standoff between police and an armed, suicidal Devine by detonating flash grenades and shooting him with rubber baton projectiles, whereupon Devine to ok his own life. See 42 U.S.C. § 1983. We review an award of summary judgment de novo and will affirm only if the record, viewed in th e light most favorable to the non-movant, shows no genuine issue of material fact and the movant’s en titlement to judgment as a matter of law. See Jackson v. Fed. Express , 766 F.3d 189, 193–94 (2d Cir. 2014). In conducting our review, we assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to expl ain our decision to affirm substantially for the reasons stated by the district court. See Estate of Timothy Devine v. Fusaro , No. 3:14-cv-01019 (JAM), 2016 WL 1 83472 (D. Conn. Jan. 14, 2016). 1. Qualified Immunity “Qualified immunity protects officials fro m liability for civil damages as long as their conduct does not violate clearly esta blished statutory or constitutional rights of which a reasonable person would have known.” Morse v. Fusto , 804 F.3d 538, 550 (2d Cir. 2015) (internal quotation marks omitted ). To determine whet her a defendant is3 entitled to qualified immunity, courts ask whet her the facts shown “make out a violation of a constitutional right” and “whether the right at issue was ‘clearly established’ at the time of defendant’s a lleged misconduct.” Pearson v. Callahan , 555 U.S. 223, 232 (2009) (quoting Saucier v. Katz , 533 U.S. 194, 201 (2001)). The “clearly established” inquiry does not ask how courts or lawyers mi ght have understood the state of the law at the time of the challenged conduct. Rathe r, “[t]he relevant, dispositive inquiry in determining whether a right is clearly estab lished is whether it would be clear to a reasonable officer that his conduct was unlaw ful in the situation he confronted.” Saucier v. Katz , 533 U.S. at 202; see Mullenix v. Luna , 136 S. Ct. 305, 308 (2015) (holding that “dispositive questio n is whether the violative natu re of particular conduct is clearly established” (emphasis and internal quotation marks omitted)); Terebesi v.
Torreso , 764 F.3d 217, 231 (2d Cir. 2014) (observing that, to determine if right is clearly established, court should consider “specificity with which a ri ght is defined, the existence of Supreme Court or Court of Appeals case la w on the subject, and th e understanding of a reasonable officer in light of preexisting law”); Walczyk v. Rio , 496 F.3d 139, 154 (2d Cir. 2007) (observing that, if illegality of conduct would no t be apparent to reasonable officer, defendant is entitled to immunity). Qualified immun ity thus provides a broad shield for “all but the plainl y incompetent or those who kn owingly violate the law.” Malley v. Briggs , 475 U.S. 335, 341 (1986); accord Mullenix v. Luna , 136 S. Ct. at 308; Drimal v. Tai , 786 F.3d 219, 225 ( 2d Cir. 2015) (reiterating Malley standard). Even when we view the re cord in the light most favorable to the Estate, we conclude, as the district court did, that Defendants are entitled to qualified immunity4 because the asserted right, i.e. , Devine’s right to be free from less-than-lethal force in the circumstances, was not clearly established in the describe d circumstances. As the district court observed, three undisputed fact s support that conclusion: (1) the police used force designed to be less-than-lethal, rather th an deadly; (2) they us ed such force against a man reasonably believed to be suicidal an d armed with a loaded gun while occupying public property; and (3) they used such fo rce only after several hours of a standoff and negotiations that had not convin ced Devine to surrender his gun. In its reply brief, the Estate asserts that the focus of analysis ought to be whether “a non-threatening person in a mental health cr isis who was passively non-responsive to police commands to surrender his weapon had th e right to be seized by law enforcement without the use of less-than-l ethal force.” Appellant’s Re ply Br. 15. Even if this argument was properly before us, see Bishop v. Wells Fargo & Co. , 823 F.3d 35, 50 (2d Cir. 2016) (observing that issu es raised for first time in reply brief are deemed waived and will normally not be consid ered on appeal), it fails because it minimizes the critical fact of Devine being armed with a deadly weapon. While the Es tate maintains that Devine never intended to harm anyone other than himself, the possession of a firearm is nevertheless a volatile circumstance, made all the more so by Devine’s refusal to surrender it and, thus, relevant to whether it was objectively reasonable for Defendants to believe that their actions were lawful. 1 See Zalaski v. C ity of Hartford , 723 F.3d 382, 389 (2d Cir. 2013).

1 Insofar as the Estate points to various factual issues as to whether the stand-off might have been resolved by having Devine sp eak to a family member or by not switching5 Insofar as the Estate points to evidence that one defendant a sserted, prior to the use of rubber batons, that, if Devine shoots himself, “it would be an acceptable outcome, and it won’t be on us,” Appellant’s Br. 11, we agree with the distri ct court that such a subjective statement cannot determine whether a right is objectively clearly established in the circumstances presented for purposes of deciding qualified immunity. See Anderson v. Creighton , 483 U.S. at 641. The Estate then points to a series of out -of-circuit cases to argue that Devine’s right not to be subjected to rubber baton proj ectiles was clearly estab lished. In none of these cases, however, were such projectiles us ed against a person who for hours refused to surrender a firearm that he continued to brandish. See Glenn v. Washington County , 673 F.3d 864, 866, 873 (9th Cir. 2011) (reversing summary judgment for defendant officers who had used beanbag s hotgun and semiautomatic weapons, i.e. , deadly force, within four minutes of encountering di straught, intoxicated individual who was threatening to kill himself with pocketkni fe, distinguishing case from those in which decedents possessed “more dangerous weapon[s],” including guns); Mercado v. City of Orlando , 407 F.3d 1152, 1156, 1160–61 (11th Cir. 2005) (reversing summary judgment for officer who, at close range, fired rubber ba ton at head of plaintiff—considered deadly force—while plaintiff was armed only with knife); Deorle v. Rutherford , 272 F.3d 1272, 1275 (9th Cir. 2001) (reversing summary judgment for officer who had fired beanbag round into face of unarmed , mentally ill indi vidual who was appr oaching officer); see negotiators, we note simply that it points to no precedent clear ly establishing that the use of the degree of force employed here be fore taking such action was clearly unconstitutional.6 also Phillips v. Cmty. Ins. Corp. , 678 F.3d 513, 526–27 (7 th Cir. 2012) (reversing qualified immunity where poli ce shot unarmed, not-resisting plaintiff with rubber batons). In sum, in none of the cited cases was the decedent or plaintiff brandishing a loaded firearm. Moreover, in none was the use of less-than-deadly force a strategy put into place after hours of negotiation had not disarmed plaintiff. We accept as true the Estate’s assertion th at an interval of several minutes passed between the two rounds of rubber baton proj ectiles fired by Defe ndants, during which Devine stated, “[W]hat are you doing? . . . You guys are going to make me do this[.]” Appellant’s Br. 12. But the Estate points to no law clearly establishing that, following such a statement, the firing of a second round of rubber batons in a less-than-lethal manner violated Devine’s clearly establis hed constitutional right to be free from excessive force. We acknowledge the tragic ci rcumstances of this case; nevertheless, because the law afforded the defend ant officers no “fair and clear wa rning” that their conduct might violate Devine’s constitutional rights, we affi rm the qualified-immun ity-based judgment. Ashcroft v. al-Kidd , 563 U.S. 731, 746 (2011) (Ke nnedy, J., concurring) (internal quotation marks omitted). 2. State-Law Claims The Estate challenges the district court’s decision to decline to exercise supplemental jurisdiction over its state-law claims and to di smiss them without prejudice. We identify no abuse of discretion by the distri ct court in that dismissal and, therefore, affirm. See Delaney v. Bank of Am. Corp. , 766 F.3d 163, 170 (2d Cir. 2014) (“In7 general, where the federal claims are dismisse d before trial, the state claims should be dismissed as well.” (internal quotation marks omitted)). 3. Conclusion We have considered the Estate’s remaini ng arguments and conclu de that they are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court