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11-1732-cv

Fortunati, et al. v. State of Vermont, et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMENDED 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 DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 3rd 4 day of December, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROSEMARY S. POOLER,

9 PETER W. HALL,

10 Circuit Judges.

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13 ROBERT A. FORTUNATI, administrator of

14 the estate of JOSEPH FORTUNATI; SUSAN

15 FORTUNATI; and MARK FORTUNATI, 

16

17 Plaintiffs-Appellants,

18

19 -v.- 11-1732-cv

20

21 STATE OF VERMONT,

22

23 Defendant,

24

25 ANDREW CAMPAGNE; MARC THOMAS; JEREMY

26 HILL; TODD PROTZMAN; ROB SNETSINGER;

27 KARL GARDNER; HUGH O’DONNELL; MIKE

28 DUDLEY; and WALTER GOODELL, 

29

30 Defendants-Appellees.

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1 FOR APPELLANTS: George Spaneas, Lebanon, New

2 Hampshire.

3

4 FOR APPELLEES: David R. Groff, (David Cassetty,

5 on the brief), for William H.

6 Sorrell, Attorney General of

7 Vermont, Montpelier, Vermont.

8

9 Appeal from a judgment of the United States District

10 Court for the District of Vermont (Murtha, J.).

11

12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13 AND DECREED that the judgment of the district court be

14 AFFIRMED. 

15

16 This is an appeal from the district court’s grant of

17 summary judgment and judgment as a matter of law in favor of

18 defendants on qualified immunity grounds. Robert Fortunati

19 brought suit against members of the Vermont State Police

20 (“VSP”) in his capacity as administrator of his son Joseph

21 Fortunati’s estate under 42 U.S.C. § 1983 alleging that

22 defendants violated Joseph’s Fourth Amendment right to be

23 free from excessive force when they fatally shot Joseph

24 while attempting to take him into custody. Further, Robert,

25 his wife Susan, and their other son Mark brought a claim

26 against members of the VSP under 42 U.S.C. § 1983 for false

27 arrest arising out of an incident that occurred when they

28 went to the scene of Joseph’s death. We assume the parties’

29 familiarity with the underlying facts, the procedural

30 history, and the issues presented for review.

31

32 The district court granted summary judgment in favor of

33 Defendants with respect to all claims arising out of the

34 fatal shooting death of Joseph on the ground of qualified

35 immunity. The Court reviews de novo a decision on a motion

36 for summary judgment. Mario v. P & C Food Markets, Inc.,

37 313 F.3d 758, 763 (2d Cir. 2002). “Qualified immunity

38 protects officials from liability for civil damages as long

39 as ‘their conduct does not violate clearly established

40 statutory or constitutional rights of which a reasonable

41 person would have known.’” Gilles v. Repicky, 511 F.3d 239,

42 243 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S.

43 800, 818 (1982)). To determine whether a defendant is

44 entitled to qualified immunity, courts ask: whether the
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1 facts shown “make out a violation of a constitutional

2 right,” and “whether the right at issue was ‘clearly

3 established’ at the time of defendant’s alleged misconduct.”

4 Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting

5 Saucier v. Katz, 533 U.S. 194, 201 (2001)). Qualified

6 immunity applies to shield official actions that were

7 “‘objectively legally reasonable in light of the legal rules

8 that were clearly established at the time [they were]

9 taken.’” X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d

10 Cir. 1999) (alterations omitted) (quoting Anderson v.

11 Creighton, 483 U.S. 635, 639 (1987)); see also Taravella v.

12 Town of Wolcott, 599 F.3d 129, 134-35 (2d Cir. 2010). 

13

14 1. Plaintiffs contend that there was a genuine dispute

15 as to whether Joseph pulled his gun on the members of the

16 VSP’s Tactical Services Unit (“TSU”) immediately before they

17 opened fire on him. The use of deadly force can be

18 reasonable under the Fourth Amendment “if the suspect

19 threatens the officer with a weapon.” Tennessee v. Garner,

20 471 U.S. 1, 11 (1985). None of the small differences in

21 testimony Plaintiffs cite creates a genuine dispute as to

22 whether Joseph aggressively drew or reached for his gun

23 immediately prior to being fired upon by the TSU team

24 members. Some officers were able only to see Joseph reach

25 for his waist, but small differences in testimony simply do

26 not rise to the level at which a reasonable jury could find

27 the officers’ credibility damaged. The district court was

28 therefore correct to conclude that there was no genuine

29 dispute of material fact as to the credibility of the

30 officers. 

31

32 2. Before the fatal shooting, officers Hill and

33 Snetsinger shot beanbag rounds at Joseph. Assuming that a

34 reasonable jury could find that Hill and Snetsinger violated

35 Joseph’s Fourth Amendment right to be free from an unlawful

36 seizure, we conclude that the officers’ actions were

37 “objectively legally reasonable,” X-Men Sec., 196 F.3d at 66

38 (alterations omitted) (quoting Anderson, 483 U.S. at 639),

39 because “‘officers of reasonable competence could disagree

40 on the legality of the action at issue,’” Manganiello v.

41 City of New York, 612 F.3d 149, 165 (2d Cir. 2010) (quoting

42 Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)). 

43 Plaintiffs argue that internal VSP policy and the

44 International Association of Chiefs of Police Training Key
4

1 No. 274 (the “Training Key”) precluded the use of force in

2 this situation. The Training Key does not proscribe the use

3 of force against people with mental illness. The VSP use4 of-force policy authorizes the use of deadly force when the

5 “subject possesses a weapon, or is attempting to gain access

6 to a weapon under circumstances indicating an intention to

7 use it against the member [who used force] or others.” 

8 (Joint Appendix 699.) The Troopers understood Joseph to

9 either be armed or in close proximity to the gun he had

10 brandished hours earlier. The intervening nine hours did

11 not diminish the danger Joseph posed to police and the

12 surrounding community. Thus, the use of non-deadly force by

13 the Troopers who deployed the bean bag ammunition against

14 Joseph meets the objective reasonableness test. 

15

16 3. Plaintiffs also challenged the grant of qualified

17 immunity to Defendants Protzman and Goodell, who deployed

18 the TSU team. We conclude that the district court was

19 correct; there was no “clearly established” right in this

20 Circuit to be free from the deployment of a police SWAT

21 team. Appellees argue that the decision to deploy a police

22 SWAT team can itself never amount to a Fourth Amendment

23 violation. We need not decide that question, which this

24 Circuit has not addressed. See Estate of Smith v. Marasco,

25 430 F.3d 140, 149-50 (3d Cir. 2005) (“[A] decision to employ

26 a SWAT-type team can constitute excessive force if it is not

27 objectively reasonable to do so in light of the totality of

28 the circumstances.” (internal quotation marks omitted));

29 Overdorff ex rel. Holland v Harrington, 268 F.3d 1179, 1190

30 (10th Cir. 2001) (“[T]he decision to deploy a SWAT team to

31 execute a warrant must be ‘reasonable.’”). But see Salim v.

32 Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“Officer Proulx’s

33 actions leading up to the shooting are irrelevant to the

34 objective reasonableness of his conduct at the moment he

35 decided to employ deadly force.”); Carter v. Buscher, 973

36 F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is

37 not subject to Fourth Amendment scrutiny.”).

38

39 4. Qualified immunity was also granted with respect to

40 Mark and Susan’s false arrest claim. We assume that Mark

41 and Susan’s detention, which lasted forty-five minutes and

42 involved handcuffs, ripened into an arrest. However, it was

43 “objectively reasonable” for Defendants to believe the

44 detention was lawful. This Court has in the past held that
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1 officers may use more force than is typically used in a

2 Terry stop without an “arrest” taking place when the

3 officers are confronted with a situation that they know to

4 be dangerous. See United States v. Vargas, 369 F.3d 98, 102

5 (2d Cir. 2004); United States v. Alexander, 907 F.2d 269,

6 272-73 (2d Cir. 1990). The encounter was tense; it took

7 place at a crime scene; and the officers had reason to

8 believe that Robert might be armed. The officers were

9 undoubtedly aware that the Fortunati family would be upset

10 over Joseph’s death, and they could also reasonably protect

11 against disruption of the scene of the shooting and

12 interference with their investigative duties. It was

13 therefore objectively reasonable for Defendants to believe

14 that Susan and Mark’s detention did not rise to the level of

15 an arrest, notwithstanding that they may have been detained

16 for a period of up to forty-five minutes after Robert had

17 been taken into custody.

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19 5. Although Plaintiffs mention their state law claims

20 in their brief, they have not adequately briefed any state

21 law issue. Plaintiffs have therefore waived any arguments

22 with respect to their state law claimes. See Zhang v.

23 Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).

24

25 While we are fully cognizant of the tragic

26 circumstances giving rise to this case, we find no error in

27 the district court’s rulings on the issues before us. For

28 the foregoing reasons, we hereby AFFIRM the judgment of the

29 district court.

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31

32 FOR THE COURT:

33 CATHERINE O’HAGAN WOLFE, CLERK

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