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Crowley v. Rosie

United States District Court, D. Maine

September 30, 2015

RUTH E. CROWLEY, as personal representative of the Estate of Justin Crowley-Smilek, et al., Plaintiffs,
RYAN ROSIE, et al., Defendants.


JOHN H. RICH III, Magistrate Judge.

Both sides in this action alleging the use of excessive force and violation of Maine civil rights and wrongful death statutes have moved for summary judgment. I grant the defendants' motion in part and deny that of the plaintiffs.

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).

"This framework is not altered by the presence of cross-motions for summary judgment." Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003). "[T]he court must mull each motion separately, drawing inferences against each movant in turn." Id. (citation omitted); see also, e.g., Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996) ("Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se. Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. As always, we resolve all factual disputes and any competing, rational inferences in the light most favorable to the [nonmovant].") (citations 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

The following facts are undisputed, unless otherwise noted, and are properly supported in the parties' respective statements of material facts.

Defendant Ryan Rosie is a police officer for the Town of Farmington, Maine. Plaintiffs' Local Rule 56 Statement of Material Facts ("Plaintiffs' SMF") (ECF No. 45) ¶ 1; Defendants' Opposition to the Plaintiffs' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment ("Defendants' Responsive SMF") (ECF No. 54) ¶ 1. Defendant Jack Peck is the chief of the Farmington Police Department, responsible for the training of the officers within the department and providing policies and procedures on the use of force. Id. ¶¶ 2-3. The other defendant is the Town of Farmington. Amended Complaint (ECF No. 29) ¶ 6.

Rosie was hired by the Farmington Police Department on June 14, 2011. Plaintiffs' SMF ¶ 6; Defendants' Responsive SMF ¶ 6. He then participated in the department's field training program, which is a minimum eight-week ride-along program where the new officer is graded by a field training officer. Id. ¶ 7. Any candidate for the position of police officer in the Farmington Police Department must have completed a 100-hour pre-service school through the Maine Criminal Justice Academy, the Alert Test, which is another test through the Maine Criminal Justice Academy, and a physical agility test. Defendants' Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment ("Defendants' SMF") (ECF No. 48) ¶¶ 91-93; Plaintiffs' Opposing Statement of Material Facts & Additional Statement of Material[] Facts in Opposition to the Defendants' Motion for Summary Judgment ("Plaintiffs' Responsive SMF") (ECF No. 52) ¶¶ 91-93. Rosie had passed these requirements before he became an officer. Id. ¶ 97.

Peck reviews the field training materials and evaluations before a new officer is deemed to have completed his or her training. Plaintiffs' SMF ¶ 8; Defendants' Responsive SMF ¶ 8. Upon finishing training, an officer works alone, without a partner. Id. ¶ 9. The Farmington Police Department does not provide training to its officers on dealing with emotionally disturbed persons, outside of the field training program. Id. ¶ 45.

The Maine Criminal Justice Academy offers an 18-week training school for police officers known as the Basic Law Enforcement Training Program. Id. ¶ 11. Peck is aware that the training received in the Basic Law Enforcement Training Program is different from the field training provided by the Farmington Police department. Id. ¶ 13. Rosie was scheduled to attend the January 2012 Basic Law Enforcement Training Program. Id. ¶ 16.

During field training, an officer's skills in a particular area are rated by his or her field training officer as "superior, " "acceptable, " or "not acceptable" in daily observation reports. Id. ¶ 18. Over the course of his field training, Rosie received several marks of "not acceptable" on his daily observation reports, including "not acceptable" marks in the area of field performance stress conditions on four days, and on three days in the area of orientation skills under stress. Id. ¶¶ 21, 24, 25, 28, 29, 33, 34.

The Six Week Review for Rosie's field training noted several areas of concern, including difficulties with voice command. Id. ¶ 36. The report recommended remedial training in this regard with dismissal to follow if the remedial training was unsuccessful. Id. Rosie's training was extended by two weeks. Id. ¶ 39.[2]

Peck, the field training officers, and the deputy chief met in August 2011 to decide whether to end Rosie's training period and hire him. Id. ¶ 41. There was no discussion of Rosie's field performance under stressful conditions. Id. ¶ 43. Rosie's training period was ended and he was hired as a full-time officer. Id. ¶ 44. Rosie did not receive any training in dealing with emotionally disturbed or suicidal persons, other than two situations encountered during his field training. Id. ¶ 50.

On the morning of November 19, 2011, Rosie was working at the Farmington Police Department. Id. ¶ 54. Officer Ted Neil arrived for his shift at the Farmington Police Department at around 11:00 a.m. Id. ¶ 55. Soon after Neil arrived, a buzzer went off indicating that someone was outside one of the entrances to the building. Id. ¶ 57. Rosie and Neil checked the entrances but did not find anyone waiting outside. Id. ¶ 58.

The buzzer went off a second time, and the officers' inspection of the entrances yielded the same result. Id . ¶ 59. Rosie then received a telephone call from dispatch informing him that someone outside the building wanted to speak to an officer. Id. ¶ 60. He went to the front entrance but did not see anyone outside. Id. ¶ 61. He then stepped out of the building into the parking lot and noticed a person walking away from the building down Route 2. Id. ¶ 62. Rosie assumed that this was the person who had pressed the buzzer and called out, "Can I help you?" Id. ¶ 64. The person did not respond, so Rosie yelled louder. Id. ¶ 65.

The person then turned around and started walking toward Rosie, who did not recognize him. Id. ¶¶ 66-67. Rosie learned later that the person was Justin Crowley-Smilek. Id. ¶ 68 Crowley-Smilek's hands were in his jacket pockets as he walked back toward the police station. Id. ¶ 70. He did not say anything. Id. ¶ 69. Rosie began walking toward Crowley-Smilek and tried to engage him in conversation. Id. ¶¶ 72-73. Crowley-Smilek did not respond. Id. ¶ 74.

Rosie said to Crowley-Smilek, "You are making me nervous. Take your hands out of your pockets." Id. ¶ 75. Crowley-Smilek did not respond and kept walking toward Rosie at a fast pace. Id. ¶¶ 76, 81.[3] Rosie moved to the front driver's side of his cruiser, which was parked in front of the police department. Id. ¶ 80. Crowley-Smilek walked to the rear of the cruiser on the passenger side. Id. ¶ 82. His hands were still in his jacket pockets. Id. ¶ 83.

Crowley-Smilek then took a knife out of his left jacket pocket. Id. ¶ 85. He held it in his left hand. Id. ¶ 86. The knife was 13 inches long, with an eight-inch blade and a five-inch handle. Defendants' Additional Statement of Material Facts ("Defendants' Additional SMF") (included in Defendants' Responsive SMF, beginning at 10) ¶ 2; Plaintiffs' Local Rule 56 Reply Statement of Material Facts ("Plaintiffs' Reply SMF") (ECF No. 55) ¶ 2. Rosie drew his service firearm and asked, "What the f--- you doing?" Plaintiffs' SMF ¶ 87; Defendants' Responsive SMF ¶ 87.[4] Crowley-Smilek responded, "You better kill me now." Id. ¶ 88. He started to run around the cruiser in the direction of Rosie. Id. ¶ 91.[5] Rosie, moving in the opposite direction around the cruiser, called "10-74" on his radio. Id. ¶¶ 92-93. A "10-74" call is a call for emergency officer assistance that will call out "everybody available." Id. ¶¶ 94-95. Rosie provided dispatch with his location, and expected Neil to respond to the call for assistance. Id. ¶¶ 98, 100. As he called dispatch, Rosie took out his taser, but immediately rejected the option of using it. Id. ¶¶ 101-02.

Rosie put his taser back immediately because he knew that the taser was not the appropriate tool because he believed that he was being confronted with a threat of deadly force, and the taser is categorized as non-deadly force. Defendants' SMF ¶¶ 47-48; Plaintiffs' Responsive SMF ¶¶ 47-48.

Crowley-Smilek continued to move back and forth on the passenger side of the cruiser, and Rosie moved around the cruiser to keep the cruiser between him and Crowley-Smilek. Plaintiffs' SMF ¶¶ 103-04; Defendants' Responsive SMF ¶¶ 103-04. At some point, Crowley-Smilek said twice, "You better kill me." Id. ¶ 105. Rosie took these statements as a threat against him. Defendants' SMF ¶ 57; Plaintiffs' Responsive SMF ¶ 57. When Crowley-Smilek was at the back end of the cruiser, Rosie chose to move out away from the cruiser to take up a firing position. Plaintiffs' SMF ¶¶ 110-11; Defendants' Responsive SMF ¶¶ 110-11. Rosie could see Crowley-Smilek's "entire body" as he came around the back of the cruiser toward Rosie. Id. ¶ 113.

Crowley-Smilek began sprinting toward Rosie. Defendants' SMF ¶ 61; Plaintiffs' Responsive SMF ¶ 61. As Crowley-Smilek ran toward Rosie, Rosie fired his service weapon repeatedly at Crowley-Smilek. Id. ¶ 62. Rosie recalls firing five shots at Crowley-Smilek. Plaintiffs' SMF ¶ 122; Defendants' Responsive SMF ¶ 122. While prone on the ground, Crowley-Smilek said to Rosie, "Kill me." Defendants' SMF ¶ 68; Plaintiffs' Responsive SMF ¶ 68. Rosie was circling Crowley-Smilek and yelled, "Do you have any more weapons?" because Crowley-Smilek's left arm was underneath his abdomen. Rosie reached down and took Crowley-Smilek's left arm out from underneath him to ensure that there were no more weapons. Id. ¶ 71.

Rosie radioed dispatch, stating: "Subject down, " and responded affirmatively when asked whether an ambulance was needed. Id. ¶¶ 72-73. Rosie then re-holstered his weapon, as Neil came out of the front entrance of the municipal building. Id. ¶ 74.

The state medical examiner found upon autopsy that Crowley-Smilek died as the result of several gunshot wounds. Plaintiffs' SMF ¶ 140; Defendants' Responsive SMF ¶ 140. There was a graze wound to the back of his neck and an entry wound over the right back shoulder. Id. ¶¶ 142-43. Seven shots were fired, five of ...

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