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Adle v. Maine State Police Department

United States District Court, D. Maine

August 18, 2017

MELISSA A. ADLE, Personal Representative of the Estate of Shad I. Gerken, Plaintiff,
v.
MAINE STATE POLICE DEPARTMENT et al., Defendants.

          ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          NANCY TORRESEN UNITED STATES CHIEF DISTRICT JUDGE

         The Plaintiff, Melissa Adle, brings suit as the personal representative of the estate of Shad Gerken, asserting federal and state violations arising from the shooting of Mr. Gerken by the Maine State Police. The remaining[1] Defendants-the Maine State Police (“MSP”), Sargent Donald Shead, Sargent Nicholas Grass, and Detective Greg Mitchell-move for summary judgment on the Plaintiff's excessive force and disability discrimination claims, as well as the analogous claims under the Maine Civil Rights Act and the Maine Human Rights Act. Defs.' Mot. for Summ. J. (ECF No. 55). The individual Defendants contend that they are entitled to qualified immunity, and the MSP contends it did not discriminate against Mr. Gerken on account of his mental disability. For the following reasons, the motion is GRANTED.

         BACKGROUND

         I. Shad Gerken's Initial Encounter with Law Enforcement

         On September 27, 2014, in Chester, Maine, a caller notified the Penobscot County Sherriff's Office (“PCSO”) at approximately 10:00 a.m. that a man, later identified as Shad Gerken, was walking on the Woodville Road, shouting at passing traffic, and carrying a knife. Statement of Material Facts ¶ 1 (“SMF”) (ECF No. 56-1).[2] From a later report, the PCSO learned that Mr. Gerken also told an eight-year-old child who was retrieving mail to stop looking at him or he would kill her. SMF ¶ 1-3.

         Mr. Gerken was 34 years old, stood five feet nine inches tall, weighed 200 pounds, and was muscular and capable of quick movement. SMF ¶¶ 13, 48. The knife he was carrying measured 11 inches, with a six inch blade. SMF ¶ 2. Throughout the ensuing encounter, Mr. Gerken was acutely psychotic, confused, unable to appreciate that his life was in danger, and unable to comply with police directives. SMF ¶ 246.

         An officer from the PCSO and Game Warden Sargent Ronald Dunham were the first to respond. SMF ¶ 4. When the officers ordered Mr. Gerken to drop the knife, he fled into the woods. SMF ¶¶ 5-6, 257. The remainder of the encounter took place in woods thick with small and medium-sized trees and underbrush. Ex. L, Photo 9946. (ECF No. 66-6).

         The officers pursued Mr. Gerken into the woods, and during the chase, Sgt. Dunham hit Mr. Gerken repeatedly with pepper spray in the face, to no observable effect. SMF ¶¶ 6-7. Mr. Gerken ignored the first responders' repeated commands to drop the knife. SMF ¶ 9.

         At one point, Sgt. Dunham pushed Mr. Gerken into a tree and down to one knee. SMF ¶¶257-59. Sgt. Dunham grabbed the back of Mr. Gerken's blade with his left hand and attempted to twist the knife free of Mr. Gerken's grip. SMF ¶¶ 257-58. During this struggle, which lasted several minutes, Sgt. Dunham momentarily released his hold on the knife and punched Mr. Gerken on the right side of his face. SMF ¶¶ 263, 266. Sgt. Dunham sustained superficial cuts to his hand. SMF ¶ 261. Mr. Gerken also had blood on his hands, and his right eye eventually became swollen shut. SMF ¶¶ 265, 267. Mr. Gerken fell to the ground at the base of the tree. SMF ¶ 268. The first responders threatened to shoot Mr. Gerken if he stood. SMF ¶ 268. The time was approximately 10:50 a.m. SMF ¶ 392.

         A Lincoln police officer arrived on the scene and deployed her Taser on Mr. Gerken four times as Sgt. Dunham alternatingly hit Mr. Gerken with pepper spray. SMF ¶¶ 10-12. At that point, Mr. Gerken was lying on the ground on his back, and he still did not drop his knife. SMF ¶¶ 11-12. The three officers formed a semi-circle perimeter around Mr. Gerken, standing approximately 6 feet from where he lay. SMF ¶ 269.

         The fourth officer to arrive on the scene, MSP Trooper Thomas Fiske, determined that the six foot perimeter established by the first responders was too close, and he told Mr. Gerken that the officers would stand back. SMF ¶ 270. From a greater distance, Tpr. Fiske attempted to communicate with Mr. Gerken, who was mostly silent and non-responsive. SMF ¶¶ 21-22.

         II. Maine State Police Crisis Negotiation and Tactical Teams Arrive

         The MSP crisis negotiation team, comprised of officers trained to communicate with individuals who have threatened or inflicted serious injury or death to themselves or others, responded along with the MSP tactical team, composed of officers specially trained to respond to high-risk incidents. SMF ¶¶ 15-16, 25. Under MSP policy, the tactical team provides protection for the crisis negotiation team when it is deployed. SMF ¶¶ 26, 49.

         Sargent Carleton Small was the first member of the crisis negotiation team to arrive on the scene at approximately 12:15 p.m. See SMF ¶ 19. He concluded that Tpr. Fiske was speaking in “an appropriately calm voice”[3] and that Tpr. Fiske should continue his efforts rather than have Sgt. Small take over right away. SMF ¶¶ 190-91.

         Corporal John Madore, the commander of the MSP crisis negotiation team, arrived on the scene at 12:45 p.m. SMF ¶ 19. Cpl. Madore coordinated with the PCSO to obtain an arrest warrant for Mr. Gerken on charges of criminal threatening with a dangerous weapon and aggravated assault based, respectively, on his statement to the eight-year-old child and his struggle over the knife with the game warden. SMF ¶¶ 20, 143. Cpl. Madore also learned from a deputy sheriff familiar with the family that Mr. Gerken's wife and children had moved out earlier that summer because Mr. Gerken was experiencing homicidal ideations. SMF ¶ 24.

         Tactical team commander Sgt. Nicholas Grass arrived on the scene at 2:15 p.m. SMF ¶ 272. Eventually seven additional officers from the tactical team arrived-Sgt. Shead, Det. Mitchell, Sgt. Dalton, Sgt. Stetson, Tpr. Roy, Sgt. Michaud, and Sgt. Hamilton. SMF ¶¶ 32-37, 272. All of the tactical team members knew that Mr. Gerken was experiencing an acute mental health crisis. SMF ¶ 249. The individual Defendants-Sgt. Grass, Det. Mitchell, and Sgt. Shead-understood that Mr. Gerken was armed with a knife, that Sgt. Dunham had received a minor cut trying to disarm Mr. Gerken, and that pepper spray and a Taser had been used by the first responders without success.[4] SMF ¶¶ 192-94. Sgt. Grass was informed that Mr. Gerken was believed to be off his medication and that he was a survivalist. SMF ¶ 192.

         The tactical team formed a semi-circle perimeter around Mr. Gerken, replacing the first responders. SMF ¶ 43. Using a clock face to help orient the reader, [5] with Mr. Gerken at the center of the clock, tactical team members took the following approximate positions:

• Sgt. Michaud at 7:00;
• Sgt. Grass at 6:30;
• Tpr. Roy at 6:00;
• The negotiators-Cpl. Madore, Sgt. Small and Tpr. Fiske-and Sgt. Stetson at 5:30;
• Sgt. Dalton and his K-9 at 4:30; and
• Sgt. Shead and Det. Mitchell at 3:00.

Pl .'s App'x. Ex. A (“Forensic Map”) (ECF No. 65-14).

         There is disagreement as to how far away the police were from Mr. Gerken throughout the standoff, and the estimates of the officers vary between 20 feet and 25 five yards.[6] Judging from the MSP forensic map, which the Plaintiff adopted as a demonstrative exhibit, the officers were not exactly equidistant to Mr. Gerken and the different police officers were between 20 and 40 feet away. Forensic Map.

         To maintain good sight lines on Mr. Gerken through the trees and brush, the perimeter established by the tactical team was closer to Mr. Gerken than Sgt. Grass preferred for officer safety. SMF ¶ 42. The semi-circle shape of the perimeter was a precaution against crossfire in the event that Mr. Gerken attacked one of the officers, but it left open a wide escape path should Mr. Gerken try to flee. SMF ¶¶ 41, 44.[7]

         As a precaution, officers had closed the road near the scene to thru traffic and established an outer checkpoint to keep the public from entering the scene. SMF ¶¶ 290-93. No houses were visible in the immediate vicinity, though some were “walking distance” away. SMF ¶ 292.

         Sgt. Grass, Sgt. Shead, Det. Mitchell, as well as three other members of the tactical team were each armed with H&K 416D semi-automatic rifles, . SMF ¶¶ 275-76. The tactical team also wore camouflage and ballistic vests and helmets . SMF ¶¶ 46-47, . SMF ¶¶ 47, 280. The tactical team also had ballistic shields “available for use, ” but the record does not establish the number of shields on the scene. SMF ¶ 281.

         At around 2:10 p.m., when tactical team member Todd Stetson came to the perimeter, Mr. Gerken said, “that's a real warrior there.” SMF ¶¶ 272-73. Shortly thereafter, around 2:20 p.m., Mr. Gerken became agitated. SMF ¶ 50. He yelled “you've got no ammo, ” “I am the angel of death, and I can kill us all with one fingernail, ” and “I had 30 minutes of lightning. What are you going to do?” SMF ¶ 50.

         At 3:06 p.m., Sgt. Small of the crisis negotiation team took over from Tpr. Fiske as lead negotiator. SMF ¶ 300. Cpl. Madore relayed information to Sgt. Small that might facilitate communications, including Mr. Gerken's mental health diagnoses and disclosures to his therapists. SMF ¶ 79. The negotiators learned that Mr. Gerken had various mental health diagnoses, including schizophrenia, type I bipolar disorder with psychotic features, attention deficit disorder, posttraumatic stress disorder, and possible borderline personality disorder. SMF ¶¶ 240, 253.

         Sgt. Small attempted to persuade Mr. Gerken to put down his knife. He spoke to Mr. Gerken about his children, assured him that the police would not approach or hurt him, and offered food, water, and medical care if Mr. Gerken put down the knife. SMF ¶¶ 62, 301. Sgt. Small told Mr. Gerken not to stand up with his knife in his hand and presented a “surrender plan” that Mr. Gerken could follow to safely turn himself in to police. SMF ¶¶ 63-65. Mr. Gerken was mostly unresponsive, but he did say “no” and shake his head in response to requests that he put down the knife. SMF ¶¶ 66-67, 297.

         Sgt. Grass, as commander of the tactical team, created a plan for taking Mr. Gerken into custody in the event that the negotiations failed. SMF ¶ 87. The plan revolved around the use of a fire hose that would be sprayed at Mr. Gerken to pin him to the ground and force the knife from his hand. SMF ¶¶ 86-90. This would allow four other tactical team members to converge on Mr. Gerken and take him into custody. SMF ¶¶ 86-90. Sgt. Grass had attended a presentation several years prior on the safe use of fire hoses to subdue dangerous individuals. SMF ¶ 113. Tpr. Roy had received instruction and experience in the use of a fire hose in June 2014, three months prior. SMF ¶¶ 115-18.

         Lincoln Fire Department firefighters provided the equipment and instructed Tpr. Roy on the use of the hose, including the operation of the nozzle, which was consistent with the instruction he had received in June. SMF ¶¶ 138-39. Both Cpl. Madore and Tpr. Roy conferred with the firefighters about choosing the nozzle that would deliver the most concentrated, forceful spray. SMF ¶¶ 132, 137. The firefighters assured Tpr. Roy that the nozzle chosen was the best one to achieve a focused beam of water and that their equipment would discharge water with enough force to pin a person to the ground. SMF ¶¶ 136-37.

         In addition, Sgt. Michaud, who was chosen to be one of the four tactical team members who would converge on Mr. Gerken, would be armed with a 40mm foam baton launcher, which he would fire at Mr. Gerken to cause abrupt pain and force Mr. Gerken to drop the knife. SMF ¶¶ 91-95. Sgt. Michaud had extensive training in using the foam baton launcher. SMF ¶ 93. Sgt. Grass communicated the plan and requested feedback from the tactical team and crisis negotiation team and heard no objection. SMF ¶¶ 98-99.

         At some point during the afternoon, Sgt. Grass, Det. Mitchell and Sgt. Shead were informed that the PCSO had obtained the warrant for Mr. Gerken's arrest on criminal charges including criminal threatening with a dangerous weapon and aggravated assault. SMF ¶ 143. Although Sgt. Grass had developed a tactical plan and had a warrant for Mr. Gerken's arrest, he decided that negotiations should be given more time. SMF ¶ 145.

         Mr. Gerken did not present a risk of immediate bodily harm to the tactical team while he was lying on the ground. SMF ¶ 320. Mr. Gerken had complied for hours with the instruction not to get up with a knife in his hand. SMF ¶ 324.

         III. The Application of Less-Than-Lethal Force

         As the afternoon progressed, members of the tactical team found it increasingly difficult to see Mr. Gerken clearly in the dwindling light. SMF ¶ 140. Shortly after 5:00 p.m., while Sgt. Small was talking to Mr. Gerken about his children and having the strength to survive, Mr. Gerken, while still lying on his back, raised his arms and began swiping his knife through the air. SMF ¶ 146. Some members of the tactical team heard Mr. Gerken say “I'll cut you” or words to that effect. SMF ¶ 147.

         Cpl. Madore and Sgt. Grass discussed the danger posed by the onset of darkness, [8] the alarming nature of Mr. Gerken's most recent outburst, and the fact that no progress had been made in almost seven hours of attempted negotiations. SMF ¶ 151. Cpl. Madore told Sgt. Grass that he did not believe further negotiations were likely to be successful and that he had no reservations about employing a tactical intervention. SMF ¶ 152. Sgt. Grass decided that it was necessary to take Mr. Gerken into custody because: (i) Cpl. Madore had concluded that further negotiation was unlikely to be successful; (ii) Mr. Gerken continued to display threatening and violent behavior, and (iii) the deteriorating visibility increased the risk to tactical team members and the risk that Mr. Gerken would escape and endanger local residents or first responders stationed at the command post. SMF ¶ 154.

         At approximately 5:15 p.m., [9] Cpl. Madore applied the negotiation technique of a last opportunity to surrender. SMF ¶¶ 156-58. Cpl. Madore told Mr. Gerken four times that he was under arrest, his safety was no longer guaranteed, and he must drop the knife, stand up with his hands raised, and walk toward Cpl. Madore's voice. SMF ¶¶ 156, 160. Cpl. Madore had seen this tactic succeed on prior occasions. SMF ¶ 158. Mr. Gerken looked at Cpl. Madore, but then lowered his head and remained on the ground. SMF ¶ 159.

         Shortly afterward, Sgt. Grass gave the order to activate the fire hose, fire the baton rounds, [10] and advance toward Mr. Gerken. SMF ¶ 372. Det. Mitchell and Sgt. Shead advanced toward Mr. Gerken from the right end of the perimeter, and Sgt. Grass and Sgt. Michaud advanced from the left. SMF ¶¶ 164-65. The water from the fire hose neither pinned Mr. Gerken to the ground nor dislodged the knife from his grip. SMF ¶ 166. Instead, Mr. Gerken stood up. SMF ¶ 167.

         IV. The Application of Lethal Force

         After Mr. Gerken got up, the situation unfolded very quickly. Statements given the night of the incident by Sgt. Grass, Det. Mitchell, and Sgt. Shead tell a consistent story, even though the perspective of these officers varied.[11] Mr. Gerken initially tried to run away from the tactical team and the water spray. SMF ¶ 385. Mr. Gerken “changed direction, moving towards Sgt. Shead and Det. Mitchell, as they advanced from the right side of the perimeter.” SMF ¶ 209.[12] Sgt. Grass (who was advancing from the 6:30 position) saw Mr. Gerken come upon a blowdown of trees and change direction, quartering[13] towards Det. Mitchell and Sgt. Shead. SMF ¶¶ 389-90. Det. Mitchell stated that Mr. Gerken was moving towards him and Sgt. Shead. SMF ¶ 209. Sgt. Shead said he initially lost sight of Mr. Gerken in the spray of the fire hose but when he regained sight of him, Sgt. Shead perceived Mr. Gerken to be on his feet and less than 20 feet from Det. Mitchell and himself. SMF ¶ 211-12.

         Sgt. Shead said that he then perceived that Mr. Gerken posed an imminent threat, and he fired several shots at Mr. Gerken from his rifle. SMF ¶ 215. The parties agree that after Sgt. Shead shot Mr. Gerken, Mr. Gerken fell to the ground. He was approximately 20 feet from his initial location, 18.61 feet away from Det. Mitchell, 12-13 feet from Sgt. Grass, and 19.57 feet from Sgt. Shead. SMF ¶¶ 223, 401; Forensic Map.

         Det. Mitchell shouted at Mr. Gerken to stop moving and stay on the ground. SMF ¶ 220. Sgt. Grass, Det. Mitchell, and Sgt. Shead each saw Mr. Gerken in the process of getting back to his feet with the knife still in his hand. SMF ¶ 222. Cpl. Madore described Mr. Gerken sitting up and beginning to lunge forward with the knife in his hand. SMF ¶¶ 216, 224. Based on their perception that Mr. Gerken posed an imminent threat, Sgt. Grass, Det. Mitchell, and Sgt. Shead fired additional rounds at Mr. Gerken. SMF ¶¶ 225-26.

         When firing ceased, Sgt. Shead, one of the tactical team medics, determined that Mr. Gerken had no vital signs, and EMTs confirmed that Mr. Gerken had died, marking the time of death as 5:20 p.m. SMF ¶¶ 227, 230, 392.

         In total, the tactical team fired 28 bullets at Mr. Gerken during the incident. SMF ¶ 417. Sgt. Grass fired 13 bullets, Sgt. Shead fired 9, and Det. Mitchell fired 6. SMF ¶ 417. Between 25 to 27 of the bullets hit Mr. Gerken. SMF ¶ 421. The autopsy report shows that most of the bullets entered Mr. Gerken's body from the back. SMF ¶ 422. Most of the gunshot wounds went from left to right, although the entrance to the head was on the right side and traveled left. SMF ¶ 424. The report confirmed two entrance wounds on the front abdomen. SMF ¶ 421. The report showed 14 entrance wounds on the back body, 2 on the right shoulder that reentered the base of the head, 1 on the left tricep, and 2 on the right arm. SMF ¶ 421. The report also recorded a gaping wound on the left anterior thigh, consistent with a cluster of 4 to 6 entrance wounds, and Mr. Gerken's head suffered “explosive destruction.” SMF ¶ 421.

         V. MSP Training in Dealing with Individuals with Mental Illness

         All MSP officers are required to review certain MSP general orders annually, including M-1 on the use of force, M-2 on response to barricaded or hostage situations, and M-3 on response to individuals experiencing mental illness. SMF ¶ 168. The M-3 general order states: “The policy of the Maine State Police is to duly and diligently assist individuals who are or may be experiencing mental health crises.” SMF ¶ 238. The policy includes standards for arresting or taking an individual into protective custody where the officer has probable cause to believe that an individual is experiencing a mental health crisis.” SMF ¶¶ 17, 238.

         Tpr. Fiske, the initial negotiator on the scene, had additional training in basic hostage negotiation (40 hours), ADA for law enforcement, police response to people with disabilities, and law enforcement interactions with people with autism. SMF ¶ 181.

         Members of the crisis negotiation team have specialized training in communicating with individuals experiencing mental health crises and with armed and unarmed standoffs. SMF ¶ 16. The crisis negotiation team trains together for 12-13 days per year, which typically includes scenario-based exercises, as well as lectures. SMF ¶¶ 57-58. Sgt. Small and Cpl. Madore are certified as negotiators from the Maine Criminal Justice Academy, which requires training in abnormal psychology assessment, crisis/suicide intervention, active listening and communication skills, assessment of a person's emotional stability, and crisis resolution. SMF ¶¶ 55-56, 66. Both had training on interacting with individuals with mental illness, including a 40-hour FBI negotiation course and a 40-hour course presented by the National Alliance for the Mentally Ill. SMF ¶¶ 54, 71.

         The tactical team's annual training, since 2010, has included encounters with persons exhibiting behavior indicative of mental illness and on the use of deadly force. SMF ¶ 170. The tactical team also trains at least annually with the crisis negotiation team. SMF ¶ 171. A portion of tactical team training is scenario-based and regularly involves individuals who appear to suffer from mental illness. SMF ¶172. In April 2011, members of the tactical team were required to attend a two-hour training on dealing with emotionally disturbed people, taught by a presenter from Community Health and Counseling Services Crisis Service in Bangor. SMF ¶ 173. Defendant Shead did not attend this training. See SMF ¶ 174. In September 2012, members of the tactical team were required to attend a four-hour training on bath salts and mentally disturbed people presented by the Brewer Police Department. SMF ¶ 175. All named defendants attended this training. SMF ¶ 176. In December 2013, members of the tactical team were required to attend a four-hour training on dealing with mentally ill individuals, presented by the crisis negotiation team. SMF ¶ 177. All named defendants attended this training. SMF ¶ 178. Sgt. Grass, Sgt. Shead, and Det. Mitchell, as well as tactical team members Dalton, Michaud, and Hamilton, also had training in ADA for law enforcement and police response to people with disabilities. SMF ¶¶ 180, 182, 183, 185-87.

         LEGAL STANDARD

         Summary judgment is warranted where the moving party shows that there is no genuine dispute of material fact and that the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. Pro. 56(a). A fact is material where it could influence the outcome of the litigation. Oahn Nguyen Chung v. StudentCity.com, Inc., 854 F.3d 97, 101 (1st Cir. 2017). A dispute is genuine where a reasonable jury could resolve the point in favor of the non-moving party. Id. In deciding a motion for summary judgment, the court must construe “all the facts in the light most flattering to the nonmoving party, resolving any evidentiary conflicts in that party's favor, and drawing all reasonable inferences therefrom to his behoof.” Id. (quoting Gomez v. Stop & Shop Supermkt. Co., 670 F.3d 395, 396 (1st Cir. 2012)).

         The intersection between summary judgment and qualified immunity can be tricky to navigate. Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009).

The difficulty arises because the summary judgment standard requires absolute deference to the nonmovant's factual assertions (as long as those assertions are put forward on personal knowledge or otherwise documented by materials of evidentiary quality), whereas qualified immunity, when raised on summary judgment, demands deference to the reasonable, if mistaken actions of the movant. In order to ease this inherent tension, we think it wise for courts to cabin these standards and keep them logically distinct, first identifying the version of events that best comports with the summary judgment standard and then asking whether, given that set of facts, a reasonable officer should have known that his actions were unlawful.

Id. at 18-19 (internal citations omitted). “Because determining reasonableness in [the excessive force] context is such a fact-intensive endeavor, summary judgment is improper if the legal question of immunity turns on which version of the facts is accepted.” Id. at 25 (quoting Griffith v. Coburn, 473 F.3d 650, 656-57 (6th Cir. 2007); see also Tolan v. Cotton, 134 S.Ct. 1861, 1866-68 (2014) (disputes of fact included whether the victim was verbally threatening or moving toward the officers when the shooting occurred).

         Particularly in assessing a deadly force claim, courts “may not simply accept what may be a self-serving account by the police officer” where “the witness most likely to contradict [the officer's] story-the person [he] shot dead-is unable to testify.” Flythe v. D.C., 791 F.3d 13, 19 (D.C. Cir. 2015) (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994)). In such instances, courts must “carefully examine all the evidence in the record . . . to determine whether the officer's story is internally consistent and consistent with other known facts.” Id. (quoting Scott, 39 F.3d at ...


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