United States District Court, D. Maine
EDWARD LUND, Plaintiff.
ERIC McCUSKER, Defendant.
MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
JOHN H. RICH, III, Magistrate Judge.
The defendant, Portland Police Officer Eric McCusker, moves for summary judgment on the sole remaining claim against him by plaintiff Edward Lund, for the use of excessive force in violation of the Fourth Amendment of the United States Constitution during the detention and arrest of Lund on September 19, 2012. See Officer McCusker's Motion for Summary Judgment ("Motion") (ECF No. 32) at 1. For the reasons that follow, the Motion is denied.
I. Applicable Legal Standards
A. Federal Rule of Civil Procedure 56
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id.; Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party." Johnson v. University of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). "A fact is material if it has the potential of determining the outcome of the litigation." Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (quoting Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis omitted)); Fed.R.Civ.P. 56(c). "As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).
B. Local Rule 56
The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive "separate, short, and concise" statement of material facts in which it must "admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]" Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must "admit, deny or qualify such additional facts by reference to the numbered paragraphs" of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.
Local Rule 56 directs that "[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." Loc. R. 56(f). In addition, "[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment" and has "no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact." Id.; see also, e.g., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion[.]").
II. Factual Background
There is no dispute between the parties as to a majority of the facts set forth in their statements of material facts, many of which I find unnecessary to set forth herein. I have resolved disputes in favor of Lund as the nonmovant. I have assumed that statements that are "qualified" are admitted subject to the qualification, unless the qualification indicates otherwise.
A. Officers Respond to Scene of Suspected Burglary
On September 19, 2012, Zachary Carleton, a security contractor performing anti-burglary surveillance at the Central Maine Power ("CMP") premises on Canco Road in Portland, saw two men walk from an adjacent parking lot and cut through a fence line area near the CMP facility. [Defendant's SMF], commencing on page 1 of Plaintiff Edward Lund's Reply to Defendant Eric McCusker's Responses to Plaintiff's Additional Statements of Material Facts ("Unified SMF") (ECF No. 38), ¶¶ 24, 58; Plaintiff's Response ("Plaintiff's Opposing SMF"), commencing on page 1 of Unified SMF, ¶¶ 24, 58. The two males were walking in an area between two fence lines, one of which ran along the CMP property and the other of which ran along Brockway Smith opposite CMP, with a railroad track and grassy area in between. Id. ¶ 59.
CMP had arranged for overnight surveillance of its facility because it had a long history of copper thefts, including a massive break-in during the summer in which entry was gained through the fence line. Id. ¶ 55. Reels of copper were outside in plain view at the CMP facility, and Carleton was positioned in order to protect CMP from copper thefts. Id. ¶ 57. Carleton, who suspected that the men were going to enter the CMP facility, requested police assistance. Id. ¶¶ 58, 64.
McCusker and fellow Portland Police Officer Christian Stickney, each of whom had been employed by the Portland Police Department for more than 10 years, quickly responded upon receiving a call from dispatch after 10 p.m. reporting suspicious persons in the area of the CMP premises on Canco Road. Id. ¶¶ 10, 18, 64, 66. Stickney, who had been a police canine handler since 2008, brought with him his police canine Taz, a large Malinois Belgian shepherd dog weighing about 70 pounds. Id. ¶¶ 19-21, 72. Sergeant Eric Nevins also was dispatched to CMP to assist and supervise McCusker and Stickney. Id. ¶¶ 22, 67. Because there had been copper thefts from CMP, Nevins, McCusker, and Stickney all believed that they were responding to a burglary in progress, which is a felony offense. Id. ¶ 69. McCusker believed that it was possible that others, besides the two men whom Carleton had observed, were involved. Id. ¶ 76.
After McCusker and Stickney arrived at CMP, Stickney secured Taz in his police car, and the officers began a vigilant and cautious search for the two men in the alley between the two chain-line fences. Id. ¶¶ 71, 78, 82. The area was not typically traveled or used for business purposes, was dark, was unpaved, and had heavy vegetation, including tall grass, and some terrain hazards. Id. ¶¶ 79-80.
The location at the fence line where Carleton had spotted the two men was not wellilluminated, and it was an easy place for someone to get through or over the fence. Id. ¶ 74. Even though McCusker used a flashlight during the search, he could not see anything because the vegetation was too thick. Id. ¶ 84. The situation was problematic tactically because the officers were operating in an area contained by eight-foot chain-link fences on either side, with only two ways out of the area, either in the direction from which they had walked or in the direction they were searching. Id. ¶ 81. McCusker did not feel safe because he suspected that the suspects could be hiding in the alleyway, and the terrain created good opportunities to hide. Id. ¶ 83.
Stickney decided to return to the patrol car to get Taz. Id. ¶ 85. McCusker was alone and exposed in the alleyway during that interval but continued to check the area near him as Stickney and Taz, on whom Stickney had placed a harness attached to a long leather lead, walked toward him. Id. ¶¶ 86, 88. In the meantime, Lund and Staples had walked down the railroad tracks and "dove into the bushes" when they saw a set of car headlights pull into the area. Defendant's SMF ¶ 89; Deposition of Edward Lund ("Lund Dep.") (ECF No. 33-1), attached to ECF No. 33, at 90, 92. They saw two pairs of legs pass by them three times, the last time with a police canine. Defendant's SMF ¶ 91; Plaintiff's Opposing SMF ¶ 91.
B. Suspects Are Discovered
As Stickney approached McCusker, Taz pulled him toward some bushes, where he found Lund and Staples lying on the ground hiding, face-down and head-to-toe, parallel to the Brockway Smith chain-link fence. Id. ¶ 95. The ground surface in the area where Lund and Staples were hiding was grass, dirt, and gravel. Id. ¶ 90. Stickney and McCusker had reasonable concerns for their safety when they found Lund and Staples prone and hiding during the night of September 19, 2012. Id. ¶ 97.
After Taz discovered the men, Stickney, perceiving a threat, followed his training protocol and commanded Taz to "watch" the suspects, which involves barking, and shouted commands for the men to show their hands, advising that the police canine would bite them if they did not follow instructions. Id. ¶ 98. The two men remained immobile and did not resist after Stickney gave them instructions. Id. ¶ 99. When McCusker heard Stickney giving verbal commands, he immediately ran toward him. Id. ¶ 100. Using his flashlight, McCusker illuminated two Caucasian adult males lying head to toe in a line against the Brockway Smith fence, covered in vegetation, and he noticed that one of the suspects was partially obscured by a bush, shrub, or tree. Id. ¶ 101.
After Stickney instructed the suspects to show their hands to make sure that they had nothing in them, McCusker told Staples not to move and then to put his hands behind his back. Id. ¶ 105. Although the suspects were in a closed-in area that made displaying their hands difficult, they showed their hands, allowing the officers to verify that they had nothing in them. Id. ¶ 106. McCusker did not know whether the two suspects ...