Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-1872

MICHAEL E. JAQUES,

Plaintiff, Appellant,

v.

TOWN OF LONDONDERRY ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

 Selya, Circuit Judge,

Farris,* Senior Circuit Judge,

and Howard, Circuit Judge.

Andru H. Volinsky, with whom Stein, Volinsky & Callaghan P.A.

was on brief, for appellant.

Donald E. Gardner, with whom Michael A. Ricker and Devine,

Millimet & Branch, P.A. were on brief, for appellees.

December 20, 2002

_________

*Of the Ninth Circuit, sitting by designation.
1On appeal, Jaques pursues only his excessive force claim

against Sgt. Dussault and his municipal liability claims against

the Town and Chief Ryan.

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Per Curiam. The case underlying this appeal arose out of

an unfortunate incident that occurred during the early morning

hours of September 16, 1997. At that time, police responded to a

911 call at a residence located at 17 Windsor Boulevard,

Londonderry, New Hampshire. They patiently attempted to take into

custody, and disarm, plaintiff-appellant Michael E. Jaques. As the

drama played out, gunfire erupted. Jaques was severely wounded by

a shot fired by Sgt. Gerard Dussault.

In the aftermath of the shooting, Jaques invoked 42

U.S.C. § 1983 and brought a federal civil rights suit against the

Town of Londonderry (the Town) and several Londonderry police

officers (including Sgt. Dussault, Chief Joseph Ryan, Officer Chris

Gandia, and Officer Jack Slade).1 He alleged, inter alia, that

Sgt. Dussault had used excessive force against him; that Chief Ryan

and the Town had instituted a series of wrong-headed customs,

policies, and practices; and, to make matters worse, that they had

inadequately trained the Town's police officers.

After protracted pretrial discovery, the district court

granted the defendants' motion for summary judgment. See Jaques v.

Town of Londonderry, No. 00-432, 2002 WL 1332491 (D.N.H. June 17,

2002). This appeal followed.
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There is no need to tarry. The district court wrote a

lengthy, closely reasoned opinion addressing, and fully disposing

of, the appellant's claims. Having carefully considered the

record, the briefs, the appellant's assignments of error, and the

parties' arguments, we conclude, without serious question, that the

district court's disposition of the case was correct in all

respects.

We have made it an article of faith "that when a lower

court accurately takes the measure of a case and articulates a

cogent rationale, it serves no useful purpose for a reviewing court

to write at length." Seaco Ins. Co. v. Davis-Irish, 300 F.3d 84,

86 (1st Cir. 2002); accord Maurice v. State Farm Mut. Auto. Ins.

Co., 235 F.3d 7, 9-10 (1st Cir. 2000); Chico-Velez v. Roche Prods.,

Inc., 139 F.3d 56, 58 (1st Cir. 1998); Ayala v. Union de

Tronquistas de P.R., 74 F.3d 344, 345 (1st Cir. 1996); Holder's

Capital Corp. v. Cal. Union Ins. Co. (In re San Juan Dupont Plaza

Hotel Fire Litig.), 989 F.2d 36, 38 (1st Cir. 1993). This is a

paradigmatic example of the sort of case in which that principle

should be applied. Consequently, we affirm the district court's

judgment for substantially the reasons elucidated in that court's

thoughtful rescript. We add only four brief comments.

First: The appellant asseverates that summary judgment

was barred by a plethora of factual disputes. He overlooks,

however, that the mere presence of genuinely disputed facts does
2We find unpersuasive the appellant's effort to distinguish

Napier on the ground that, here, the admission did not encompass an

imminent threat of harm. While not an element of the offense to

which he pled guilty, the imminence of the threat posed by the

appellant's conduct is an inescapable inference from the undisputed

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not pretermit summary judgment. "To achieve that end, the dispute

must relate to a material fact." Kearney v. Town of Wareham, ___

F.3d ___, ___ (1st Cir. 2002) (emphasis in the original) [No. 02-

1264, slip op. at 10]. A fact is material if — and only if — it

has the capacity to affect the outcome of the case. United States

v. One Parcel of Real Prop. (Great Harbor Neck, New Shoreham,

R.I.), 960 F.2d 200, 204 (1st Cir. 1992). The disputes to which

the appellant alludes are about facts that are not critical to the

proper adjudication of the summary judgment motion (and which,

therefore, are not material).

Second: As a result of his actions on the morning in

question, the appellant pled guilty to a criminal charge of

reckless conduct. See N.H. Rev. Stat. § 631:3. Under New

Hampshire law, see, e.g., Hopps v. Utica Mut. Ins. Co., 127 N.H.

508, 511, 514 (1985), that plea admitted the material allegations

contained in the indictment. Thus, the correct starting point for

analysis of the defendants' summary judgment motion was to take, as

a given, that the appellant "recklessly engaged in conduct which

placed another in danger of serious bodily injury." In the

circumstances at hand, that admission was damning. See Napier v.

Town of Windham, 187 F.3d 177, 184-85 (1st Cir. 1999).2
facts of record.

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Third: There is no question here that the appellant,

known to Sgt. Dussault to be a former Army Ranger, steadily

advanced on Sgt. Dussault; that he was armed; that he refused to

obey the officer's orders; that the officer retreated; that the

appellant fired the first shot; and that another officer (later

identified as Gandia) returned fire. Only then did Sgt. Dussault,

believing that a comrade was under attack and that he himself was

in jeopardy, discharge his weapon. Given the compressed time

frame, the highly charged environment, and the kaleidoscopic

sequence of events, a rational jury could not find that Sgt.

Dussault's return of fire was objectively unreasonable. See Graham

v. Connor, 490 U.S. 386, 396-97 (1989) (explaining that "[t]he

calculus of reasonableness must embody allowance for the fact that

police 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 in a particular

situation"); accord Napier, 187 F.3d at 184-85, 187; Roy v.

Inhabitants of City of Lewiston, 42 F.3d 691, 695 (1st Cir. 1994).

Fourth: We say only a few words about the claims against

Chief Ryan and the Town. The bottom line is that the failure of

the appellant's cause of action against Dussault dooms his attempt

to impose liability on Chief Ryan and the Town. Without an

underlying constitutional violation — and if Dussault is not
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liable, there is no such violation here — a claim of municipal

liability necessarily fails. See Nieves v. McSweeney, 241 F.3d 46,

50 (1st Cir. 2001); Evans v. Avery, 100 F.3d 1033, 1040 (1st Cir.

1996).

We need go no further. We hold that the district court

did not err in granting the defendants' motion for brevis

disposition.

Affirmed.