1 11-1732-cv Fortunati, et al. v. State of Vermont, et al.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## AMENDED SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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 .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 3 rd** **day of December, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **ROSEMARY S. POOLER,** 8 **PETER W. HALL,** 9 **Circuit Judges**

**.** 10 11
- - - - - - - - - - - - - - - - - - - -X 12 **ROBERT A. FORTUNATI, administrator of** 13 **the estate of JOSEPH FORTUNATI; SUSAN** 14 **FORTUNATI; and MARK FORTUNATI,** 15 16 **Plaintiffs-Appellants ,**  17 18 **-v.- 11-1732-cv** 19 20 **STATE OF VERMONT,** 21 22 **Defendant ,**  23 24 **ANDREW CAMPAGNE; MARC THOMAS; JEREMY** 25 **HILL; TODD PROTZMAN; ROB SNETSINGER;** 26 **KARL GARDNER; HUGH O’DONNELL; MIKE** 27 **DUDLEY; and WALTER GOODELL,** 28 29 **Defendants-Appellees**

**.** 30
- - - - - - - - - - - - - - - - - - - -X 312 **FOR APPELLANTS:** George Spaneas, Lebanon, New 1 Hampshire. 2 3 **FOR APPELLEES:** David R. Groff, (David Cassetty, 4 on the brief ), forWilliam H. 5 Sorrell, Attorney General of 6 Vermont, Montpelier, Vermont. 7 8 Appeal from a judgment of the United States District 9 Court for the District of Vermont (Murtha, J. ). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12 **AND DECREED**that the judgment of the district court be 13
**AFFIRMED**

. 14 15 This is an appeal from the district court’s grant of 16 summary judgment and judgment as a matter of law in favor of 17 defendants on qualified immunity grounds. Robert Fortunati 18 brought suit against members of the Vermont State Police 19 (“VSP”) in his capacity as administrator of his son Joseph 20 Fortunati’s estate under 42 U.S.C. § 1983 alleging that 21 defendants violated Joseph’s Fourth Amendment right to be 22 free from excessive force when they fatally shot Joseph 23 while attempting to take him into custody. Further, Robert, 24 his wife Susan, and their other son Mark brought a claim 25 against members of the VSP under 42 U.S.C. § 1983 for false 26 arrest arising out of an incident that occurred when they 27 went to the scene of Joseph’s death. We assume the parties’ 28 familiarity with the underlying facts, the procedural 29 history, and the issues presented for review. 30 31 The district court granted summary judgment in favor of 32 Defendants with respect to all claims arising out of the 33 fatal shooting death of Joseph on the ground of qualified 34 immunity. The Court reviews de novo a decision on a motion 35 for summary judgment. Mario v. P & C Food Markets, Inc.

, 36 313 F.3d 758, 763 (2d Cir. 2002). “Qualified immunity 37 protects officials from liability for civil damages as long 38 as ‘their conduct does not violate clearly established 39 statutory or constitutional rights of which a reasonable 40 person would have known.’” Gilles v. Repicky , 511 F.3d 239, 41 243 (2d Cir. 2007) (quoting Harlow v. Fitzgerald , 457 U.S. 42 800, 818 (1982)). To determine whether a defendant is 43 entitled to qualified immunity, courts ask: whether the 443 facts shown “make out a violation of a constitutional 1 right,” and “whether the right at issue was ‘clearly 2 established’ at the time of defendant’s alleged misconduct.” 3 Pearson v. Callahan , 555 U.S. 223, 232 (2009) (quoting 4 Saucier v. Katz , 533 U.S. 194, 201 (2001)). Qualified 5 immunity applies to shield official actions that were 6 “‘objectively legally reasonable in light of the legal rules 7 that were clearly established at the time [they were] 8 taken.’” X-Men Sec., Inc. v. Pataki , 196 F.3d 56, 66 (2d 9 Cir. 1999) (alterations omitted) (quoting Anderson v. 10 Creighton , 483 U.S. 635, 639 (1987)); see alsoTaravella v. 11 Town of Wolcott , 599 F.3d 129, 134-35 (2d Cir. 2010). 12 13 1. Plaintiffs contend that there was a genuine dispute 14 as to whether Joseph pulled his gun on the members of the 15 VSP’s Tactical Services Unit (“TSU”) immediately before they 16 opened fire on him. The use of deadly force can be 17 reasonable under the Fourth Amendment “if the suspect 18 threatens the officer with a weapon.” Tennessee v. Garner

, 19 471 U.S. 1, 11 (1985). None of the small differences in 20 testimony Plaintiffs cite creates a genuine dispute as to 21 whether Joseph aggressively drew or reached for his gun 22 immediately prior to being fired upon by the TSU team 23 members. Some officers were able only to see Joseph reach 24 for his waist, but small differences in testimony simply do 25 not rise to the level at which a reasonable jury could find 26 the officers’ credibility damaged . The district court was 27 therefore correct to conclude that there was no genuine 28 dispute of material fact as to the credibility of the 29 officers

. 30 31 2. Before the fatal shooting, officers Hill and 32 Snetsinger shot beanbag rounds at Joseph. Assuming that a 33 reasonable jury could find that Hill and Snetsinger violated 34 Joseph’s Fourth Amendment right to be free from an unlawful 35 seizure, we conclude that the officers’ actions were 36 “objectively legally reasonable,” X-Men Sec. , 196 F.3d at 66 37 (alterations omitted) (quoting Anderson , 483 U.S. at 639), 38 because “‘officers of reasonable competence could disagree 39 on the legality of the action at issue,’” Manganiello v. 40 City of New York , 612 F.3d 149, 165 (2d Cir. 2010) (quoting 41 Walczyk v. Rio , 496 F.3d 139, 154 (2d Cir. 2007)). 42 Plaintiffs argue that internal VSP policy and the 43 International Association of Chiefs of Police Training Key 444 No. 274 (the “Training Key”) precluded the use of force in 1 this situation. The Training Key does not proscribe the use 2 of force against people with mental illness. The VSP use3 of-force policy authorizes the use of deadly force when the 4 “subject possesses a weapon, or is attempting to gain access 5 to a weapon under circumstances indicating an intention to 6 use it against the member [who used force] or others.” 7 (Joint Appendix 699.) The Troopers understood Joseph to 8 either be armed or in close proximity to the gun he had 9 brandished hours earlier. The intervening nine hours did 10 not diminish the danger Joseph posed to police and the 11 surrounding community. Thus, the use of non-deadly force by 12 the Troopers who deployed the bean bag ammunition against 13 Joseph meets the objective reasonableness test. 14 15 3. Plaintiffs also challenged the grant of qualified 16 immunity to Defendants Protzman and Goodell, who deployed 17 the TSU team. We conclude that the district court was 18 correct ; there was no “clearly established” right in this 19 Circuit to be free from the deployment of a police SWAT 20 team. Appellees argue that the decision to deploy a police 21 SWAT team can itself never amount to a Fourth Amendment 22 violation. We need not decide that question, which this 23 Circuit has not addressed. SeeEstate of Smith v. Marasco

, 24 430 F.3d 140, 149-50 (3d Cir. 2005) (“[A] decision to employ 25 a SWAT-type team can constitute excessive force if it is not 26 objectively reasonable to do so in light of the totality of 27 the circumstances.” (internal quotation marks omitted)); 28 Overdorff ex rel. Holland v Harrington , 268 F.3d 1179, 1190 29 (10th Cir. 2001) (“[T]he decision to deploy a SWAT team to 30 execute a warrant must be ‘reasonable.’”). But seeSalim v. 31 Proulx , 93 F.3d 86, 92 (2d Cir. 1996) (“Officer Proulx’s 32 actions leading up to the shooting are irrelevant to the 33 objective reasonableness of his conduct at the moment he 34 decided to employ deadly force.”); Carter v. Buscher , 973 35 F.2d 1328, 1332 (7th Cir. 1992) (“[P]re-seizure conduct is 36 not subject to Fourth Amendment scrutiny.”). 37 38 4. Qualified immunity was also granted with respect to 39 Mark and Susan’s false arrest claim. We assume that Mark 40 and Susan’sdetention, which lasted forty-five minutes and 41 involved handcuffs, ripened into an arrest. However, it was 42 “objectively reasonable” for Defendants to believe the 43 detention was lawful. This Court has in the past held that 445 officers may use more force than is typically used in a 1 Terrystop without an “arrest” taking place when the 2 officers are confronted with a situation that they know to 3 be dangerous. SeeUnited States v. Vargas , 369 F.3d 98, 102 4 (2d Cir. 2004); United States v. Alexander , 907 F.2d 269, 5 272-73 (2d Cir. 1990) . The encounter was tense; it took 6 place at a crime scene; and the officers had reason to 7 believe that Robert might be armed. The officers were 8 undoubtedly aware that the Fortunati family would be upset 9 over Joseph’s death, and they could also reasonably protect 10 against disruption of the scene of the shooting and 11 interference with their investigative duties. It was 12 therefore objectively reasonable for Defendants to believe 13 that Susan and Mark’s detention did not rise to the level of 14 an arrest, notwithstanding that they may have been detained 15 for a period of up to forty-five minutes after Robert had 16 been taken into custody. 17 18 5. Although Plaintiffs mention their state law claims 19 in their brief, they have not adequately briefed any state 20 law issue. Plaintiffs have therefore waived any arguments 21 with respect to their state law claimes. SeeZhang v. 22 Gonzales , 426 F.3d 540, 545 n.7 (2d Cir. 2005). 23 24 While we are fully cognizant of the tragic 25 circumstances giving rise to this case, we find no error in 26 the district court’s rulings on the issues before us. For 27 the foregoing reasons, we hereby **AFFIRM** the judgment of the 28 district court. 29 30 31 FOR THE COURT: 32 CATHERINE O’HAGAN WOLFE, CLERK 33 34