United States District Court, D. Maine
MELISSA A. ADLE, Personal Representative of the Estate of Shad I. Gerken, Plaintiff,
MAINE STATE POLICE DEPARTMENT et al., Defendants.
ORDER ON DEFENDANTS' MOTION FOR SUMMARY
TORRESEN UNITED STATES CHIEF DISTRICT JUDGE
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 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.
Shad Gerken's Initial Encounter with Law
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). 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.
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
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).
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.
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 ¶
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
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
Maine State Police Crisis Negotiation and Tactical Teams
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.
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” and that Tpr. Fiske should continue his
efforts rather than have Sgt. Small take over right away. SMF
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.
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. SMF ¶¶ 192-94.
Sgt. Grass was informed that Mr. Gerken was believed to be
off his medication and that he was a survivalist. SMF ¶
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,  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).
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. 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.
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 ¶¶
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.
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.
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.
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.
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.
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 ¶¶
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.
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.
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.
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.
The Application of Less-Than-Lethal Force
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.
Madore and Sgt. Grass discussed the danger posed by the onset
of darkness,  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.
approximately 5:15 p.m.,  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.
afterward, Sgt. Grass gave the order to activate the fire
hose, fire the baton rounds,  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
The Application of Lethal Force
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. 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. Sgt. Grass
(who was advancing from the 6:30 position) saw Mr. Gerken
come upon a blowdown of trees and change direction,
quartering 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.
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;
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 ¶¶
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.
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.
MSP Training in Dealing with Individuals with Mental
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 ¶¶
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
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,
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.
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)).
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).
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 ...