United States Court of Appeals 

For the First Circuit 

No. 17-1451 

JASON BEGIN, 

Plaintiff, Appellee, 

v. 

LAURA DROUIN, 

Defendant, Appellant, 

CITY OF AUGUSTA, MAINE, 

Defendant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. John C. Nivison, U.S. Magistrate Judge] 

Before 

Torruella, Kayatta, and Barron, 

Circuit Judges. 

Edward R. Benjamin, Jr., with whom Kasia S. Park and Drummond 

Woodsum were on brief, for appellant. 

 Bradford A. Pattershall, with whom Law Office of Bradford A. 

Pattershall, LLC, Matthew D. Bowe, and Law Office of Matthew D. 

Bowe were on brief, for appellee. 

 

November 16, 2018 
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KAYATTA, Circuit Judge. Officer Laura Drouin of the 

Augusta, Maine police department shot plaintiff Jason Begin as 

Begin was cutting himself with a knife in the waiting area of the 

Riverview Psychiatric Center's local office. Begin later sued 

Drouin under 42 U.S.C. § 1983, alleging a deprivation of his 

constitutional rights. After discovery, Drouin moved for summary 

judgment, arguing that she was immune to Begin's damage claims 

because a reasonable officer in her position would have thought 

that Begin posed an immediate threat to Drouin or to the Riverview 

employees who had been meeting with Begin just before he pulled 

out his knife. The district court denied her motion, and Drouin 

filed this interlocutory appeal. For the following reasons, we 

dismiss the appeal to the extent it challenges the district court's 

assessment of the factual record under Fed. R. Civ. P. 56, and we 

otherwise affirm the denial of summary judgment. 

I. 

An order denying a motion for summary judgment, not being 

a final judgment, usually provides no occasion for an appeal. See 

28 U.S.C. § 1291. An exception applies when such an order rejects 

a qualified immunity defense tendered in response to a claim of 

official malfeasance in violation of section 1983. In that 

instance, the state official may secure interlocutory review of a 

district court's conclusion that the official must stand trial. 

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Such review, 
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however, has limits. We cannot consider challenges to the district 

court's determination of "which facts a party may, or may not, be 

able to prove at trial." Johnson v. Jones, 515 U.S. 304, 313 

(1995); McKenney v. Mangino, 873 F.3d 75, 81 (1st Cir. 2017). To 

the contrary, we "simply take, as given, the facts that the 

district court assumed when it denied summary judgment." Johnson, 

515 U.S. at 319. And to the extent the district court fails to 

expressly articulate a relevant finding of fact, we review the 

record "to determine what facts the district court, in the light 

most favorable to the nonmoving party, likely assumed." Id. 

We therefore begin consideration of this appeal by 

describing the events not as they necessarily occurred, but rather 

as the district court determined that jurors might reasonably find 

them to have occurred, or as otherwise viewed most favorably to 

Begin. Id. at 311, 319. 

A. 

Between 2004 and 2014, Begin resided at a locked 

psychiatric hospital, Riverview Psychiatric Center, to which he 

had been committed following an acquittal on a felony theft charge 

by reason of insanity. In early 2014, he obtained a supervised 

release permitting him to live in a group residential program 

setting. One year later, questions arose concerning his compliance 

with the terms of his community placement. These questions led to 
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a meeting between Begin and three members of Riverview's outpatient 

treatment team at their office in Augusta, Maine. 

Begin's responses and behavior during that meeting 

convinced the Riverview team that he needed to be recommitted. 

Anticipating that Begin would be upset by this decision, Gregory 

Smith, a member of the team, called the Augusta Police Department 

to request that an officer be present when they informed Begin and 

then to transport him to Riverview's commitment facility. When 

Drouin arrived at the office, Smith told her that Begin might 

become uncooperative upon learning that he was being recommitted. 

Smith also said that Begin had some history of violence, but 

provided no further details. Begin is a large man, weighing 

roughly 265 pounds. Drouin was armed with her service gun, a 

Taser, an expandable baton, and pepper spray. 

Meanwhile, Begin was in the office's waiting area just 

beginning to receive the news that he would be returned to 

Riverview that afternoon. Drouin waited out of sight with several 

other Riverview employees in an adjacent hallway that entered 

directly into the waiting area. While Drouin could not hear the 

whole conversation, she did overhear Begin say that he was not 

going back to the hospital, even as he was told that he had no 

choice in the matter and that a police officer was there to 

transport him. One of the Riverview employees then signaled Drouin 

to approach. 
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The parties' stipulation and Drouin's own statement of 

undisputed facts indicate that when Drouin approached the entrance 

to the waiting area she saw two individuals: A mental health 

contractor named Philip Hunt, who had transported Begin to the 

Riverview office, and Begin. Hunt was initially seated up to six 

feet from Begin. A physician's assistant named Russell Kimball 

had previously been standing in front of Begin as he told Begin he 

was being recommitted, but the record to which the parties direct 

us does not show where Kimball was when Drouin reached the waiting 

area. 

As Drouin approached, Begin stood up. Begin made no 

attempt to start forward. Instead, he reached into his pocket 

with his right hand; announced, "I should have done this moons 

ago"; pulled out a black folding knife; and brought it down hard 

on his left arm. He did not say anything to anyone as he slashed 

his arm. Hunt, who was the person closest to Begin when he pulled 

out the knife, backed out of the way when he saw Drouin 

approaching. 

About one second after Begin pulled out his knife, Drouin 

drew her firearm and yelled "hey, hey, hey" in Begin's direction. 

As Begin continued to cut at his arms, Drouin fired three shots, 

hitting Begin twice in the chest and once in the left shoulder. 

At that point, Drouin estimates that about four to six seconds had 

passed since she first saw Begin. She had not given Begin any 
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express warnings or commands. Drouin stopped shooting when Begin 

fell to the floor. Handcuffing him, she called for an ambulance.

The district court determined for summary judgment 

purposes that while some Riverview employees were "in close 

proximity" to both Begin and Drouin, no one was "between" Drouin 

and Begin when Begin raised the knife. Further, it is accepted 

that Drouin herself was as far as twenty feet from Begin when she 

fired, and that Begin remained stationary, cutting himself while 

making no threats or movements towards anyone. 

Just over a year later, Begin sued Drouin and the City 

of Augusta in federal district court under 42 U.S.C. § 1983. That 

statute authorizes suit against any person who, acting under color 

of state law, violates the federal constitutional or statutory 

rights of another. Begin's complaint alleged that Drouin violated 

his Fourth Amendment right to be free from unreasonable seizures 

when she shot him. 

The parties agreed to have the case heard by a United 

States magistrate judge exercising the jurisdiction of the 

district court under 28 U.S.C. § 636(c)(1). After discovery, 

Drouin moved for summary judgment based, in part, on her qualified 

immunity to federal damage claims arising out of the performance 

of her official duties as a public employee. See generally Harlow 

v. Fitzgerald, 457 U.S. 800 (1982).
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In a detailed and carefully researched opinion, the 

magistrate judge (hereinafter "the district court") denied 

Drouin's motion. Reasoned the district court, the law at the time 

Drouin shot Begin was clear that under the circumstances she could 

not constitutionally shoot Begin unless he posed an immediate 

threat to herself or others and only after, if feasible, providing 

some kind of warning. The court further found that the evidence, 

as it stood on the summary judgment record, would allow a jury to 

decide either way on the questions whether Begin posed an immediate 

threat and whether a warning was feasible. 

II. 

A. 

The parties agree that Drouin's stated reason for 

shooting Begin was to protect herself and the other individuals 

present from Begin when he whipped out his knife. The law in this 

circuit has long been clear that the "use of deadly force . . . is 

reasonable (and, therefore, constitutional) only when 'at a 

minimum, a suspect poses an immediate threat to police officers or 

civilians.'" McKenney, 873 F.3d at 81 (quoting Jarrett v. Town of 

Yarmouth, 331 F.3d 140, 149 (1st Cir. 2003) (per curiam)). 

Further, when feasible, a warning must be given first. Id. at 82 

(citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); Young v. 

City of Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st Cir. 

2005)). 
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Whether an immediate threat exists is a question of fact 

for the jury as long as the evidence is sufficient to support such 

a finding. See Tolan v. Cotton, 134 S. Ct. 1861, 1867–68 (2014) 

(reversing summary judgment for a police officer because "[a] jury 

could well have concluded that a reasonable officer would have 

heard Tolan's words not as a threat"). In this case, the district 

court determined that the evidence could support a jury finding 

"that Plaintiff did not pose an immediate threat to Defendant 

Drouin and the others who were present." That determination -- 

that the evidence was sufficient to support a jury verdict on an 

issue of fact -- is not a ruling that we can review on this 

interlocutory appeal. Johnson, 515 U.S. at 311. 

B. 

The conclusion that a jury could find here the absence 

of the immediate threat necessary to make a shooting constitutional 

does not by itself mean that a jury could also find Drouin liable. 

Police officers do not have the luxury of calmly considering the 

circumstances they face as if they were jurors or judges. 

"[P]olice officers are often forced to make split-second judgments 

-- in circumstances that are tense, uncertain, and rapidly evolving 

-- about the amount of force that is necessary . . . ." Graham v. 

Connor, 490 U.S. 386, 396-97 (1989). Drouin therefore cannot be 

held liable, even if Begin's rights were in fact violated, unless 

the right implicated was "clearly established" and the plaintiff 
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can "show that an objectively reasonable officer would have known 

that [her] conduct violated the law." Conlogue v. Hamilton, No. 

17-2210, 2018 WL 4927553, at *3 (1st Cir. Oct. 11, 2018). In 

practice, qualified immunity doctrine "gives government officials 

breathing room to make reasonable but mistaken judgments," thereby 

guarding "all but the plainly incompetent or those who knowingly 

violate the law" from liability. Ashcroft v. al-Kidd, 563 U.S. 

731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 

(1986)). 

What the law does or does not clearly establish for 

purposes of assessing a qualified immunity defense is itself a 

question of law. See Morse v. Cloutier, 869 F.3d 16, 22 (1st Cir. 

2017) ("Generally, a claim that a certain body of facts makes out 

a violation of clearly established law is deemed to present a 

question of law, and, thus, is reviewable." (citing Camilo-Robles 

v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998))). So while we do not 

reconsider the facts as found by the district court or as otherwise 

viewed favorably to the plaintiff, we do consider afresh, and 

without deference to the district court, whether given those facts 

it was clear that no objectively reasonable officer would have 

believed the use of deadly force was lawful. See McKenney, 873 

F.3d at 82. 

In determining whether an objectively reasonable police 

officer would have thought it lawful to shoot Begin, a crucial 
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consideration is the exact number and location of the Riverview 

employees relative to Begin at the moment Drouin fired. See id. 

Neither party points us to testimony by Begin or the Riverview 

employees clearly locating themselves on a diagram of the room, 

nor even describing narratively with any precision exactly where 

they were at the time of the shooting. Drouin reports seeing only 

one person other than Begin in the waiting area as she reached the 

entrance, and that was the person who then proceeded to back away 

from Begin. The size of the room itself, we are not told. On 

appeal, Drouin simply asserts that the others were "within striking 

distance of Begin," but that is wishful gloss that claims no 

support in the district court's Rule 56 assessment of the 

undisputed facts. 

The district court did find that there was evidence the 

Riverview personnel were in "close proximity" to both Drouin and 

Begin, but that no one was "between" Drouin and Begin when Begin 

raised the knife, and that no one faced any immediate threat from 

Begin. Does this mean only that no one was in the direct line of 

fire? Or does it mean that no one was in the room between Begin 

and Drouin as she stood with gun drawn facing him standing 

stationary in front of his chair? Given the unchallengeable 

Rule 56 finding that a jury could find that Begin posed no 

immediate threat to anyone but himself, and given the ambiguous 

record concerning precisely where each person stood at the moment 
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Drouin decided to fire, we have no choice but to assume that Begin 

could not have reached out and stabbed anyone first without 

advancing as many as twenty feet toward the barrel of Drouin's 

raised gun. This reading of the ambiguous record on interlocutory 

review provides an unwelcoming backdrop for Drouin's immunity 

defense. 

Indeed, nowhere in her sixty-one pages of briefing does 

Drouin claim that a reasonable officer would have fired were she 

twenty feet away from Begin with all of the Riverview employees 

aside or behind her, or otherwise similarly removed from Begin, 

and Begin offering no hint of an advance. Rather, Drouin 

predicates most of her argument upon her preferred, but presently 

unacceptable, spin on the record as locating "three people . . . 

within striking distance of Begin." 

Our review of our own case law suggests why Drouin never 

argues that she can prevail even if no one was closer to Begin 

than she was. In our 2017 decision in McKenney, we considered the 

state of the law as it was clearly established as of April 2014, 

approximately nine months before the events at the heart of this 

case transpired. 873 F.3d at 78. We determined that "well-settled 

precedents" addressed "the lawfulness of using deadly force 

against an individual who was suicidal, armed, slow in gait, some 

distance away from the officer, and had received no commands or 

warnings for several minutes." Id. at 83. The specific assumed 
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facts in McKenney placed the plaintiff sixty-nine feet away, armed 

with a gun and moving slowly towards an officer positioned behind 

a car at the time he was shot. There was clear visibility, six 

minutes had passed since the officers had ordered McKenney to drop 

his weapon, and no one warned him that he would be shot if he did 

not comply. Id. at 79. The officer knew McKenney was suicidal, 

and McKenney was not pointing his gun at anyone when the officer 

fired. Id. at 78. On such assumed facts, we held that a jury could 

hold the officer liable for violating clearly established law. 

Of course no two cases are identical. But a case need 

not be identical to clearly establish a sufficiently specific 

benchmark against which one may conclude that the law also rejects 

the use of deadly force in circumstances posing less of an 

immediate threat. Id. at 82–83 (quoting al-Kidd, 563 U.S. at 741); 

Alfano v. Lynch, 847 F.3d 71, 76 (1st Cir. 2017) ("[T]here is no 

requirement of identicality. In arguing for clearly established 

law, a plaintiff is not required to identify cases that address 

the 'particular factual scenario' that characterizes his case." 

(citing Matalon v. Hynnes, 806 F.3d 627, 633 (1st Cir. 2015))). We 

must assume on the record in this case that Drouin knew that Begin 

was intent on harming himself, that he threatened no one else by 

word or movement, and that he had not received any warning or order 

from Drouin. While Begin was closer to Drouin (twenty feet) than 

McKenney was to the officer who shot him (sixty-nine feet), Begin 
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had a knife while McKenney had a gun. We think that an objectively 

reasonable officer would regard a knife at twenty feet as posing 

no greater threat to an armed police officer than does a gun at 

sixty-nine feet. Nor do the facts here otherwise render Begin 

more threatening than McKenney. So, given that the law at the 

time the officer in McKenney fired clearly established that that 

shooting was unlawful on the plaintiff's version of the facts, 

then the facts here -- as we must assume them to be -- also support 

such a finding. 

III. 

None of the foregoing means that Drouin in fact did 

anything wrong. Rather, it simply means that we cannot set aside 

on this record the district court's conclusion that the evidence 

viewed most favorably to Begin could support a verdict for Begin. 

Whether the evidence actually presented at trial continues to 

provide that support remains to be seen. 

For the foregoing reasons, we dismiss the appeal in part 

for want of appellate jurisdiction to the extent Drouin challenges 

the district court's assessment of the record, and we otherwise 

affirm the district court's denial of summary judgment.