NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; [email protected]
25-P-481 Appeals Court
MICHAEL PAUL WALSH & another1 vs. ROBERT HACKETT & others.2
No. 25-P-481.
Plymouth. February 5, 2026. - September 29, 2026.
Present: Vuono, Ditkoff, & D'Angelo, JJ.
Appeals Court, Jurisdiction. Practice, Civil, Interlocutory
appeal, Summary judgment. Massachusetts Civil Rights Act.
Civil Rights, Immunity of public official. Immunity from
Suit. Municipal Corporations, Police, Governmental
immunity. Governmental Immunity. Police Officer.
Civil action commenced in the Superior Court Department on March 3, 2021.
The case was heard by Brian S. Glenny, J., on a motion for summary judgment.
1 Sarah Elizabeth Gardner. Although a plaintiff in the underlying action, Gardner did not file a brief or otherwise participate in this appeal, as is her right.
2 Thomas Kelly, Thomas DeLaura, David Lis, the town of Plymouth (town), and the select board of Plymouth. The individuals are police officers, sued in both their official and personal capacities. All claims against the town and the select board, as well as negligence-based claims against the officers, were dismissed, and that order is not before us.
2
Francesca M. Papia (Thomas R. Donohue also present) for the defendants.
Robert C. Johnson, Jr., for Michael Paul Walsh.
DITKOFF, J. Michael Paul Walsh (plaintiff) and his wife,
Sarah Elizabeth Gardner, bring claims of assault and battery,
intentional infliction of emotional distress, violation of civil
rights, and loss of consortium against the defendants, four
police officers (officers) of the town of Plymouth (town).3 The
officers appeal from the denial of summary judgment in the
Superior Court, claiming qualified and common-law immunity from
suit. We conclude first that, pursuant to the doctrine of
present execution, the officers' claims of qualified and commonlaw immunity are properly before us.
On the merits, although parts of the incident giving rise
to this suit were not recorded, the climactic events were
recorded by the plaintiff and Gardner's own home surveillance
cameras. In considering whether a genuine issue of material
fact exists for a jury, we must consider the record in light of
that video footage of the incident, which plainly establishes
that the plaintiff fired a handgun in the direction of the
police officers, at which point they returned fire, and that the
officers promptly stopped firing once the plaintiff was subdued.
3 Although both Walsh and Gardner are plaintiffs, we refer to Walsh as the plaintiff, for simplicity's sake.
3
Although the plaintiff's testimony regarding the unrecorded
portions of the incident must be accepted as true for purposes
of summary judgment, his testimony that contradicts the video
footage must not be accepted as true. In light of the
uncontestable facts, the officers are entitled to qualified and
common-law immunity from suit for the claims arising out of the
shooting. Accordingly, we reverse.
1. Background. On April 26, 2018, the Plymouth police
department received a call from Gardner. She explained that the
plaintiff "went crazy" and "shot [her] car up when [she] was
trying to get into it." Gardner was "afraid [her] husband shot
himself." While still speaking with the police, Gardner
received a mobile telephone call from the plaintiff, who said he
loved her and then hung up. Almost immediately after, the
plaintiff sent Gardner a text message stating that the police
were at their house. Recorded footage from a surveillance
camera owned by the plaintiff and Gardner and facing their
driveway confirms Gardner's version of events. While Gardner
and her daughter were packing up their car, the plaintiff fired
at least two shots through the front windshield, exclaiming,
"Tonight's my night to die."
The summary judgment record includes two different video
recordings. The first, which (as discussed) shows the
plaintiff's shooting at least two shots at Gardner's car, was
4
recorded by a NETGEAR/Arlo motion-activated surveillance camera
system. In response to the State police's request for video
footage of the April 26, 2018, incident, NETGEAR/Arlo provided
"clips up until the arrival of the Plymouth Police and then
skipped until sometime after the incident." NETGEAR/Arlo
explained that the lack of video footage could result from the
camera's motion-activation settings or from the owner of the
camera deleting the footage. Anyone with the username and
password can access the account and "delet[e] whatever videos
they choose . . . with absolutely no record being left." The
second video recording derives from another motion-activated
home surveillance system: the "Ring Doorbell." See United
States v. Moore-Bush, 36 F.4th 320, 372 (1st Cir. 2022), cert.
denied, 143 S. Ct. 2494 (2023) (Ring Doorbell is "one brand of
doorbell security camera[s]"). The State police investigation
uncovered that the Ring Doorbell video footage likewise only
"show[ed] a portion of the actual exchange of gunfire."
Accordingly, the next portion of the incident was not
recorded, and thus we recount the plaintiff's version. When the
police officers arrived, the plaintiff exited the front door and
fired his firearm. The plaintiff stated that he "shot a round
of bullets straight up in the air." The officers returned fire.
The plaintiff recalled getting "shot in the head" and going back
5
inside the house.4 The officers continued to return fire.
Shortly thereafter, the plaintiff exited the front door a second
time.
The Ring Doorbell camera captured video footage of these
climactic events. The plaintiff stepped down from the front
stoop, and the front door shut behind him. His right arm was
raised to shoulder height, pointing toward the three police
cruisers parked along the street at the end of the plaintiff's
driveway. Less than one second later, as he was walking toward
his driveway in the direction of the cruisers, the plaintiff
fired his gun. A quick burst of smoke expelled from the area of
his right hand. Responding gunshots immediately sounded.
Without breaking stride, the plaintiff veered toward his left
onto his lawn and started running, advancing on the officers.
Three seconds in, his back was to the cruisers as he ran across
his lawn. He fell to the ground on his right side at five
seconds, and, at six seconds, he rolled over onto his back. At
seven seconds, an officer yelled, "Hold your fire," and less
4 The summary judgment record does not include any medical records, although photographs from the hospital show a serious injury to the plaintiff's right arm and bleeding on his chest and head. The plaintiff testified that he was shot in the left shoulder, left bicep, left chest, right arm, left back, and left buttocks and that he received staples to the skull at the hospital. Officer Hackett similarly testified that the plaintiff had "serious injuries to his arms, his head, his shoulder," and that he provided medical assistance to the plaintiff.
6
than one second later, one final shot is heard. There is no
indication in the video footage, or from any other source, that
the final shot hit the plaintiff.5
The plaintiff tells a different story regarding the final
events, contending that, upon exiting his home a second time, he
was "shot in the chest" and his "gun [went] off into the
ground." He claims that he "put [his] arm out to surrender,"
but the officers were "still shooting," so he "jumped to the
ground." Then, once he was on the ground, the officers
continued to fire at him.
Gardner and the plaintiff filed suit against the officers
and the town, alleging (relevant here) violations of civil
rights, intentional infliction of emotional distress, assault
and battery, and loss of consortium. The officers moved for
summary judgment based, in part, on their assertions of
qualified and common-law immunity. A Superior Court judge
denied the motion, concluding that "critical facts are in
dispute." In denying the motion, the judge declined to consider
the video footage at all because "portions of [it] were
allegedly deleted and/or do not fully reflect the incident."
The judge determined that the officers were not entitled to
immunity because the plaintiff had "set forth evidence that the
5 Between the two encounters, the officers collectively fired forty-nine rounds of ammunition.
7
Officer Defendants were not acting in good faith . . . [and]
shot at [the plaintiff] although he did not shoot at them." The
officers now appeal.
2. Appellate jurisdiction. "Generally, a litigant is
entitled to appellate review only of a final judgment, not of an
interlocutory ruling." Linder v. Pollak, 102 Mass. App. Ct.
386, 390 (2023), quoting Lynch v. Crawford, 483 Mass. 631, 634
(2019). "[A]bsent special authorization . . . an appellate
court will reject attempts to obtain piecemeal review of trial
rulings that do not represent final disposition on the merits."
Governo Law Firm LLC v. Bergeron, 487 Mass. 188, 192 n.10
(2021), quoting Theisz v. Massachusetts Bay Transp. Auth., 481
Mass. 1012, 1014 (2018), S.C., 495 Mass. 507 (2025). A party
may obtain full appellate review of an interlocutory order under
our doctrine of present execution, however, "in narrowly limited
circumstances, where 'an interlocutory order will interfere with
rights in a way that cannot be remedied on appeal' from a final
judgment, and where the order is 'collateral to the underlying
dispute in the case.'" Lynch, supra, quoting Patel v. Martin,
481 Mass. 29, 32 (2018). Specifically, "[a] defendant has the
right to an immediate appeal under the doctrine of present
execution where protection from the burden of litigation and
trial is precisely the right to which it asserts an
8
entitlement." Estate of Moulton v. Puopolo, 467 Mass. 478, 485
(2014).
"In considering claims of absolute or qualified immunity by
governmental entities or employees, we have interpreted the
immunity to provide protection from suit, not merely from
liability . . . ." Lynch, 483 Mass. at 635. Where, as here,
the officers "claim[] immunity from suit but [did] not prevail
on a motion . . . for summary judgment, the [officers] cannot
completely vindicate [their] rights on appeal from a final
judgment because [they] would already then have defended the
case at trial -- exactly what immunity from suit was 'designed
to protect.'" Id. at 634. See Baptista v. Bristol County
Sheriff's Dep't, 100 Mass. App. Ct. 841, 860 (2022), quoting
Brum v. Dartmouth, 428 Mass. 684, 688 (1999) ("[t]he right to
immunity from suit would be 'lost forever' if an order denying
it were not appealable until the close of litigation").
Moreover, the judge's denial of the motion for summary judgment
on immunity grounds is "collateral to the rights asserted in the
underlying action because it 'is conceptually distinct from the
merits of the plaintiff's claim that his rights have been
violated.'" Estate of Moulton, 467 Mass. at 485, quoting Kent
v. Commonwealth, 437 Mass. 312, 317 (2002). "Therefore, in the
sense contemplated by our rule of present execution, the judge's
order denying qualified immunity is final, and the question of
9
the validity of the judge's order is ripe for consideration by
this court" (citation omitted). Breault v. Chairman of the Bd.
of Fire Comm'rs of Springfield, 401 Mass. 26, 31 (1987), cert.
denied, 485 U.S. 906 (1988).
Common-law immunity likewise protects "public employees
from both suit and liability," Bresler v. Muster, 496 Mass. 111,
122 (2025), and "entitles a party to an interlocutory appeal
under the doctrine of present execution," Doe v. Roman Catholic
Bishop of Springfield, 490 Mass. 373, 379 (2022), quoting Lynch,
483 Mass. at 634. "And immunity from suit always is considered
collateral to the underlying litigation." Doe, supra. The
judge's order denying common-law immunity, therefore, is also
ripe for our review. See Kent, 437 Mass. at 316.6
3. Standard of review. "We review a grant of summary
judgment de novo." Bank of N.Y. Mellon v. Morin, 96 Mass. App.
Ct. 503, 506 (2019), quoting Deutsche Bank Nat'l Trust Co. v.
6 Despite the propriety of this interlocutory appeal from the denial of summary judgment on grounds of qualified and common-law immunity, claims that are not subject to immunity "generally would not be appropriately before this court." Estate of Moulton, 467 Mass. at 491 n.18. The loss of consortium claim, however, is derivative of the underlying tort claims. See Sisson v. Lhowe, 460 Mass. 705, 710 (2011). Accordingly, if we determine that the tort claims must be dismissed on immunity grounds, we may direct that the loss of consortium claim be dismissed as well. See Bresler, 496 Mass. at 112 n.2, quoting Estate of Moulton, supra (court entertaining proper interlocutory appeal on immunity grounds may consider "intertwined" counts and issues). Accord Brum, 428 Mass. at 688.
10
Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). We
evaluate "whether, viewing the evidence in the light most
favorable to the nonmoving party, all material facts have been
established and the moving party is entitled to judgment as a
matter of law." Matter of the Estate of Urban, 102 Mass. App.
Ct. 284, 289-290 (2023), quoting Molina v. State Garden, Inc.,
88 Mass. App. Ct. 173, 177 (2015). "To survive a motion for
summary judgment, a nonmoving [party] must designate specific
facts showing that there is a genuine issue for trial." Earielo
v. Carlo, 98 Mass. App. Ct. 110, 115 (2020), quoting Torres v.
Commissioner of Correction, 427 Mass. 611, 614, cert. denied,
525 U.S. 1017 (1998). "That some facts are in dispute will not
necessarily defeat a motion for summary judgment." Duff v.
McKay, 89 Mass. App. Ct. 538, 543 n.12 (2016), quoting Hudson v.
Commissioner of Correction, 431 Mass. 1, 5 (2000). Moreover,
"[w]hen opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
See Griggs v. Brewer, 841 F.3d 308, 312 (5th Cir. 2016)
("although courts view evidence in the light most favorable to
the nonmoving party, they give greater weight, even at the
11
summary judgment stage, to the facts evident from video
recordings taken at the scene").7
4. Qualified immunity. a. Standard. "Qualified immunity
is a doctrine aimed at providing government officials (including
police officers) a modicum of protection from civil damages
liability for actions taken under color of state law. This
protection attaches 'to all but the plainly incompetent or those
who knowingly violate the law'" (citations omitted). Gray v.
Cummings, 917 F.3d 1, 9 (1st Cir. 2019), quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986). The qualified immunity
standard applies equally against claims brought under 42 U.S.C.
§ 1983 and the Massachusetts Civil Rights Act (MCRA), G. L.
c. 12, §§ 11H, 11I.8 See Raiche v. Pietroski, 623 F.3d 30, 40
7 We proceed as other jurisdictions have in applying the rule in Scott. See, e.g., Ex parte Montgomery, 272 So. 3d 155, 164-165 (Ala. 2018); Bisson v. Wal-Mart Stores, Inc., 184 Conn. App. 619, 640 (2018); In re Amendments to Fla. R. Civ. P. 1.510, 317 So. 3d 72, 75-76 (Fla. 2021) (per curiam); Lubar v. Connelly, 2014 ME 17, ¶ 44; Jewett v. Mesick Consol. Sch. Dist., 332 Mich. App. 462, 476 (2020); Duckworth v. Warren, 10 So. 3d 433, 438 (Miss. 2009); Lawrence v. Pasha, 413 Mont. 149, 154 n.1 (2023); Sellers v. Abington, 630 Pa. 330, 349 (2014); Berry v. King County, 19 Wash. App. 2d 583, 588 (2021).
8 The MCRA is "narrower" than § 1983. Conlon v. Scaltreto, 158 F.4th 211, 222 (1st Cir. 2025), quoting Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). It requires that the force used involve "threats, intimidation, or coercion," and further that the force compelled or was an attempt to compel the plaintiff to give up some other right. Conlon, supra at 223, quoting Longval v. Commissioner of Correction, 404 Mass. 325, 333 (1989). The force by itself, even if excessive, cannot be the violation.
12
(1st Cir. 2010), citing Duarte v. Healy, 405 Mass. 43, 46
(1989).
In resolving qualified immunity claims at the summary
judgment stage, we follow a two-part inquiry: (1) "whether the
facts alleged or shown by the plaintiff make out a violation of
a constitutional right"; and (2) "whether that right was clearly
established at the time of the defendant's alleged violation."
Gotay v. Creen, 495 Mass. 537, 544 (2025), quoting Penate v.
Sullivan, 73 F.4th 10, 17-18 (1st Cir. 2023). "If the answer is
negative for either prong, the defendant official enjoys
qualified immunity." Gallagher v. South Shore Hosp., Inc., 101
Mass. App. Ct. 807, 828 (2022).
b. Violation of a constitutional right. We start with
"whether the plaintiff has introduced sufficient evidence to
create a genuine issue of material fact that [the officers]
violated [his] constitutional right[]" to be free from the use
of unreasonable force.9 Clancy v. McCabe, 441 Mass. 311, 317
See Farrah v. Gondella, 725 F. Supp. 2d 238, 248 (D. Mass. 2010).
9 The plaintiff also alleges that the officers violated his
due process rights by "failing to provide him with mental health treatment and intervention" instead of using deadly force. "The due process clause of the Fourteenth Amendment does require the responsible governmental authorities to provide medical care to persons who have been injured while being apprehended by the police." LaFrenier v. Kinirey, 478 F. Supp. 2d 126, 139 (D. Mass. 2007), aff'd, 550 F.3d 166 (1st Cir. 2008), quoting Gaudreault v. Salem, 923 F.2d 203, 208 (1st Cir. 1990), cert. denied, 500 U.S. 956 (1991). The plaintiff, however, was not
13
(2004). The critical question is whether the officers "employed
force that was unreasonable under the circumstances." O'Brien
v. Bellingham, 943 F.3d 514, 530 (1st Cir. 2019), quoting
Raiche, 623 F.3d at 36. Application of the reasonableness test
"requires careful attention to the facts and circumstances of
each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight."
O'Brien, supra at 531, quoting Graham v. Connor, 490 U.S. 386,
396 (1989). See Plumhoff v. Rickard, 572 U.S. 765, 774 (2014)
("The [reasonableness] inquiry requires analyzing the totality
of the circumstances"). Reasonableness "must take account of
'the fact that police officers are often forced to make splitsecond judgments -- in circumstances that are tense, uncertain,
and rapidly evolving -- about the amount of force that is
necessary in a particular situation.'" Bannon v. Godin, 99
F.4th 63, 78 (1st Cir. 2024), cert. denied, 145 S. Ct. 1048
yet in custody when he was shot. In any event, the record shows that, once the plaintiff was no longer a present threat, the officers "immediately began rendering medical assistance." See Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 74 (1st Cir. 2016) (officer does not act with "deliberate indifference" to "serious medical needs" if he "responds reasonably to the risk"). Moreover, the facts here diverge from those cases where "federal courts have afforded a special solicitude to suicidal individuals." McKenney v. Mangino, 873 F.3d 75, 82 (1st Cir. 2017), cert. denied, 583 U.S. 1183 (2018).
14
(2025), quoting Graham, supra at 397. See McKenney v. Mangino,
873 F.3d 75, 81-82 (1st Cir. 2017), cert. denied, 583 U.S. 1183
(2018), quoting Roy v. Lewiston, 42 F.3d 691, 695 (1st Cir.
1994) ("Our case law is 'comparatively generous' to officers
facing 'potential danger, emergency conditions or other exigent
circumstances,' and we have fashioned 'a fairly wide zone of
protection' for the police in borderline cases").
Here, the use of deadly force was reasonable, both when the
plaintiff fired a handgun into the air and when he came out of
the house a second time and fired the gun in the direction of
the police, because an objectively reasonable police officer
could have determined that the plaintiff, who was shooting live
ammunition in a suburban neighborhood while being confronted by
police, posed an immediate threat to the safety of the officers
and others. See Estate of Bennett v. Wainwright, 548 F.3d 155,
175 (1st Cir. 2008), quoting Young v. Providence, 404 F.3d 4, 23
(1st Cir. 2005) ("the use of deadly force is not excessive if an
objectively reasonable officer in the same circumstances would
have believed that an individual 'posed a "threat of serious
physical harm either to the officer or others"'"). The officers
arrived at the scene to investigate a reported shooting. See
O'Brien, 943 F.3d at 531, quoting Graham, 490 U.S. at 396
(reasonableness test requires attention to "severity of the
crime at issue"). The video footage does not capture the
15
initial interaction between the officers and the plaintiff, and
thus we accept as true the plaintiff's description of the
unrecorded events. In that regard, the plaintiff stated that he
"was the first person to fire his gun during his exchange with
[the officers]." The plaintiff testified that he "came out of
the front door, and [he] shot a round of bullets straight up in
the air." Then, he "got shot in the head" and went back inside.
Officer Thomas Kelly recalled that the plaintiff's first shot
was in the direction of the officers and that the shot hit one
of the police vehicles.10 Officer David Lis recalled that the
plaintiff came out of his house, reaching at least the walkway,
and fired one shot. Officer Robert Hackett heard a "bang bang"
and then saw "the front door shut."
The dispute about the direction of the plaintiff's first
shot or shots is not important, because, under any version of
events, the plaintiff confronted the police while brandishing
and using a firearm that could be turned on them in less than
one second. A reasonable officer is not required to wait until
that officer (or another) is shot to employ deadly force. See
Conlogue v. Hamilton, 906 F.3d 150, 158 (1st Cir. 2018) (officer
10The plaintiff "was within range to seriously injure the officers at the time they fired." Estate of Rahim v. Doe, 51 F.4th 402, 415 (1st Cir. 2022). See Conlogue v. Hamilton, 906 F.3d 150, 158 (1st Cir. 2018) ("When an individual is pointing a loaded firearm, anyone within firing range is in proximity to the life-threatening danger").
16
acted reasonably in shooting plaintiff, who "pointed his loaded
firearm just above the heads of three police officers"); Napier
v. Windham, 187 F.3d 177, 187-188 (1st Cir. 1999) (after
plaintiff threatened one officer with gun and that officer shot
at but missed plaintiff, second officer did not have to wait
until gun was pointed at him to shoot plaintiff). See also
Cooper v. Sheehan, 735 F.3d 153, 159 n.9 (4th Cir. 2013) ("To be
clear, an armed suspect need not engage in some specific action
-- such as pointing, aiming, or firing his weapon -- to pose a
threat").11
After the plaintiff's initial shot, the encounter
continued. The plaintiff testified that he re-entered his home
"but c[a]me out . . . so [he] could get away from the house and
the front door" because the officers had continued firing at his
front door. As he walked out the front door, he "got shot in
11"If feasible, the suspect must also be warned before deadly force is used." Fagre v. Parks, 985 F.3d 16, 23 n.4 (1st Cir. 2021). "Although there is no standardized script for such a warning, the key is that the warning must be adequate in light of the circumstances then obtaining." Conlogue, 906 F.3d at 156, citing Young, 404 F.3d at 23. The plaintiff contends that the officers never told him to drop his gun. "Even absent agreement that the officers warned [the plaintiff] to drop his gun," a jury could not find the officers' decisions to return fire "so deficient that no reasonable officer could have made the same choice under the circumstances." Napier, 187 F.3d at 187. As stated, it is undisputed that the plaintiff fired the first shot, at which point the officers were entitled to respond without waiting to give a warning.
17
the chest pretty hard, and [his] gun [went] up and shoots into
the ground out of like a reflex type motion."
The plaintiff's version, however, is contradicted by the
events as depicted in the video footage.12 In fact, the
plaintiff exited his front door, swiftly stepped down his front
steps with his arm raised, pointing his handgun toward the
street and the officers. Within one second, a puff of smoke
floated from near the end of his raised hand, demonstrating that
he had fired the gun. His hand was not pointed down toward the
ground. His arm, and the gun at the end of it, were
unquestionably raised, aimed in the direction of the police
cruisers parked along the street at the end of his driveway. We
are not willing, nor allowed, to ignore what the video footage
so plainly tells us: a man exited his home and shot at the
police. See Scott, 550 U.S. at 380-381 ("[Plaintiff's] version
of events is so utterly discredited by the record that no
reasonable jury could have believed him. The Court of Appeals
should not have relied on such visible fiction; it should have
viewed the facts in the light depicted by the videotape");
Underwood v. Barrett, 924 F.3d 19, 20 (1st Cir. 2019) ("the
12It is worth noting that the video footage was controlled by the plaintiff and Gardner, and it could have been deleted only by them or persons to whom they had provided the proper username and password. If there was evidence that the officers had selectively deleted video footage (or, worse, altered it), the analysis would be very different.
18
district court's job was to decide whether the video evidence
'blatantly contradicted' the plaintiff's version of events, in
which case the court's next job was to determine if, viewing the
facts in the light depicted by the video evidence, the prison
official violated plaintiff's constitutional rights").
The video footage also demonstrates that this second half
of the encounter unfolded in seconds. The officers did not have
the luxury of "observ[ing] [the plaintiff's] actions and
movements over the course of several minutes." McKenney, 873
F.3d at 79. Instead, the officers responded within seven
seconds, firing at the plaintiff in rapid succession until he
fully fell to the ground.13 See Kisela v. Hughes, 584 U.S. 100,
105 (2018) (officer had "mere seconds to assess the potential
danger" to neighbor before shooting suspect). See also City &
County of San Francisco v. Sheehan, 575 U.S. 600, 612 (2015),
quoting Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-299 (1967) ("it is reasonable for police to move quickly if
delay 'would gravely endanger their lives or the lives of
others'"). The officers were not required to let an armed,
13The fact that multiple officers (and each defendant) fired at the plaintiff lends some support to the objective reasonableness of the decision to use deadly force. See Conlogue, 906 F.3d at 156 ("In considering whether an objectively reasonable police officer would have used deadly force, the fact that two other police officers on the scene also were about to fire supports the objective reasonableness of [the officer's] decision").
19
fleeing suspect who had already fired his gun to continue to
brandish a firearm while running. See Plumhoff, 572 U.S. at 777
("[I]f police officers are justified in firing at a suspect in
order to end a severe threat to public safety, the officers need
not stop shooting until the threat has ended"). After shooting
at the officers, the plaintiff ran in the opposite direction of
the police cruisers. The plaintiff stated that, as he was
running onto his lawn, he "drop[ped] [his] gun," and "put [his]
arm up to surrender." The video footage shows that, just before
his knees hit the ground, the plaintiff's two hands went up in
the air for less than one second.
The plaintiff contends that "[i]t was unreasonable for [the
officers] to continue firing at [him] after [Officer] Lis had
given his call to 'Cease fire.'" In the video footage, however,
after an officer yelled, "Hold your fire," there was only one
final shot less than one second later.
"Particularly when viewed through the lens of an officer
making a split-second judgment," Eldredge v. Falmouth, 662 F.3d
100, 107 (1st Cir. 2011), the officers' actions here "cannot be
found unreasonable because [they] may have failed to perfectly
calibrate the amount of force required to protect [themselves],"
Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007). See Sheehan,
575 U.S. at 615, quoting Billington v. Smith, 292 F.3d 1177,
1190 (9th Cir. 2002) ("even if [the officers] misjudged the
20
situation, [the plaintiff] cannot 'establish a Fourth Amendment
violation based merely on bad tactics that result in a deadly
confrontation that could have been avoided'"). This was more
than a "passing risk" from an "unthreatening suspect."
McKenney, 873 F.3d at 82, quoting Abraham v. Raso, 183 F.3d 279,
294 (3d Cir. 1999). Based on the officer's initial knowledge of
a possible firearm and the plaintiff's escalatory conduct, the
officers' decisions to return fire and to continue firing until
the threat was neutralized were objectively reasonable. See
Estate of Rahim v. Doe, 51 F.4th 402, 414 (1st Cir. 2022); Fagre
v. Parks, 985 F.3d 16, 24 (1st Cir. 2021) (officer knew suspect
had gun). We discern no constitutional violation and thus need
not continue our query. See Gallagher, 101 Mass. App. Ct. at
828. The officers are entitled to qualified immunity on the
MCRA claim. See Krupien v. Ritcey, 94 Mass. App. Ct. 131, 134
n.7 (2018) ("Qualified immunity principles developed under 42
U.S.C. § 1983 apply equally to MCRA claims").
5. Common-law immunity. "[A]ccording to Massachusetts
common law, 'a public official, exercising judgment and
discretion, is not liable for negligence or other error in the
making of an official decision if the official acted in good
faith, without malice, and without corruption.'" Najas Realty,
LLC v. Seekonk Water Dist., 821 F.3d 134, 146 (1st Cir. 2016),
quoting Nelson v. Salem State College, 446 Mass. 525, 537
21
(2006). A public official's actions are "covered by the rule
that '[t]here is every presumption in favor of the honesty and
sufficiency of the motives actuating public officers in actions
ostensibly taken for the general welfare.'" South Boston
Betterment Trust Corp. v. Boston Redev. Auth., 438 Mass. 57, 69
(2002), quoting Foster from Gloucester, Inc. v. City Council of
Gloucester, 10 Mass. App. Ct. 284, 294 (1980). See Ramos v.
Selectmen of Nantucket, 16 Mass. App. Ct. 308, 314 (1983) ("That
a public official exceeds his authority does not necessarily
constitute bad faith, malice, or corruption"). "'Bad faith' is
more than 'bad judgment or negligence,' but rather 'suggest[s] a
dishonest purpose or some moral obliquity, a conscious doing of
wrong, or a breach of a known duty through some motive of
interest or ill will.'" Bresler, 496 Mass. at 122, quoting
Buffalo-Water 1, LLC v. Fidelity Real Estate Co., 481 Mass. 13,
25-26 (2018). "'Malice' constitutes 'a wrongful act, done
intentionally, without just cause or excuse.'" Bresler, supra,
quoting Pino v. Trans-Atlantic Marine, Inc., 358 Mass. 498, 504
(1970).
Here, the plaintiff contends that a jury could find the
officers acted in bad faith, with malice, and corruptly when
(1) "they deployed semi-automatic rifles at Walsh since they
knew that he suffered from a major mental illness," and
(2) Officer Hackett said, "This is the fucking asshole who filed
22
an internal affairs complaint against me."14 Again, the parts of
the incident that were captured in the video footage establish
the absence of a genuine issue of material fact. The officers
were exercising their official discretion in responding to an
armed, threatening suspect. They were deploying weapons that
were issued to them through the Plymouth police department as
"duty weapon[s]." Captain John Rogers, formerly of the Plymouth
police department, explained that an officer of that department
was required to carry a long gun, so an individual officer may
choose to carry an AR-15 rifle. Although a pistol, which is a
handgun, may have a more "limited magazine capacity" than a
rifle, any firearm "can cause death or serious bodily harm."
There are no facts here on which a reasonable jury could base an
inference that the officers used these weapons for any purpose
or with any motive other than law enforcement.
Finally, accepting as true the plaintiff's testimony that,
after the shooting had ceased, he heard Officer Hackett yell
about an internal affairs complaint, none of the facts leading
up to that moment evince that Officer Hackett's behavior was
motivated by anything other than the plaintiff's actions in
14The plaintiff testified that an officer (who he believed was Officer Hackett) said this after the shooting stopped. The video footage ends before the officers reached the plaintiff, so we accept this testimony as true for purposes of summary judgment. The record showed that the plaintiff had filed internal affairs complaints against Officers Hackett and Lis.
23
firing toward the officers. The plaintiff's allegations are
generalized and conclusory and, as such, do not plausibly
suggest that the officers' conduct fell short of the common-law
immunity standard. See Green v. Zoning Bd. of Appeals of
Southborough, 96 Mass. App. Ct. 126, 133 (2019), quoting LaLonde
v. Eissner, 405 Mass. 207, 209 (1989) (party opposing summary
judgment "cannot rest on his or her pleadings and mere
assertions of disputed facts to defeat the motion for summary
judgment"). The plaintiff has failed to overcome the
presumption that the officers acted in good faith in the
performance of their official duties. Accordingly, the officers
are protected from suit, and the claim of loss of consortium,
which is dependent on the viability of the other claims, must
also fail as a matter of law.
6. Conclusion. The order denying the officers' motion for
summary judgment is reversed, and judgment shall enter
dismissing the complaint.15
So ordered.
15The plaintiff's request for an award of appellate attorney's fees is denied.