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Conlogue v. Hamilton

United States District Court, D. Maine

November 13, 2017

DANARAE L. CONLOGUE as personal representative of the estate of LEWIS N. CONLOGUE, Plaintiff,
v.
SCOTT HAMILTON, et al., Defendants.

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          George Z. Singal United States District Judge

         Before the Court are Cross-Motions for Summary Judgment in this matter arising from the fatal shooting of Lewis Conlogue by police officer Scott Hamilton. For the following reasons, the Court GRANTS Defendant's Motion (ECF No. 39) and DENIES Plaintiff's Motion (ECF No. 41).[1]

         I. LEGAL STANDARD

         Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).

         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. See Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004). Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotation marks and internal ellipsis omitted); see also Fed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera-Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”). “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 for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993).

         II. FACTUAL BACKGROUND

         The following facts are undisputed, unless specifically noted.[2] On Sunday, August 3, 2014, at approximately 3:41 p.m., DanaRae Conlogue called 911 and reported that she was with her husband, Lewis Conlogue, at the site of a shuttered restaurant on Bennoch Road in LaGrange, Maine, and that he had a gun to his head.[3] DanaRae explained that she and Lewis had been arguing as they drove on Bennoch Road when she pulled over in front of the restaurant building. She further explained that after she pulled over, Lewis got out of the car, told her “you don't want to see this, ” and put a gun to his head. (911 Recording (ECF No. 36-3) at 12:52; Deposition of DanaRae Conlogue (“Conlogue Dep.”) (ECF No. 36-4), PageID #s 163, 169.)[4] DanaRae also told the dispatcher that she believed the gun was a 9 mm Lewis carried as a concealed weapon and that he was “very good with guns.” (911 Recording at 2:12, 7:25; Conlogue Dep., PageID # 163.)

         Members of the Penobscot County Sheriff's Office and the Maine State Police responded to the scene. The shuttered restaurant was on the east side of Bennoch Road, which runs north-south through LaGrange. To the north of the restaurant was a parking lot bordered by rocks, some isolated trees, and then an open field. The Conlogue vehicle was parked in front of the restaurant's entrance, which was on the building's west side, facing Bennoch Road. Across Bennoch Road and slightly to the north of the restaurant's parking lot was a private residence surrounded by fields and with several vehicles parked in front of it. To the south of the restaurant was another building, which was separated from the restaurant by a line of trees. The officers at the scene assigned a letter to each side of the site for purposes of radio communication. The “A” side was the west-facing front of the restaurant, parallel with Bennoch Road; the “B” side was the north-facing side of the restaurant, abutting the parking lot; the “C” side was the east-facing rear of the restaurant; and the “D” side was the south-facing side of the restaurant.[5]

         The incident commander, Sergeant William Birch of the Sheriff's Office, and Sergeant David Millett of the State Police established a command post to the south of the restaurant, out of Lewis's sight. As officers arrived on the scene, Birch and Millett directed them to positions in a perimeter around the restaurant. The purpose of such a perimeter is both to contain a potentially dangerous suspect, so he does not move to an area where he might endanger members of the public, and to keep members of the public who may be in the area away from the suspect.[6]

         Maine State Police Trooper Thomas Fiske arrived on the scene at 4:17 p.m. and took a position across the road from the parking lot, behind a tractor sitting in the yard of the residence. Fiske positioned himself near another trooper, Christopher Hashey, and was later joined by a third trooper, Trevor Snow. At the time Fiske took his position, Lewis (hereinafter, “Conlogue”) was sitting on a rock at the edge of the parking lot on the north side of the restaurant pointing a handgun at his own head. Fiske estimated his distance from the Conlogue vehicle at the front of the restaurant to be about fifty yards.[7] Fiske observed Conlogue through binoculars throughout the subsequent events and radioed his observations to the other officers at the scene.[8] In order to use the binoculars effectively, Fiske needed to hold them with both hands and was thus unable to hold his firearm while he observed Conlogue. Around 4:30 p.m., Fiske reported over the radio that Conlogue had a “silver semi-auto” pointed at his own head. (Trooper Fiske Cruiser Recording (“Fiske Rec.) (ECF No. 36-1) at 32:14.)

         Defendant Sergeant Scott Hamilton was off-duty at the time but learned about the incident from monitoring police radio traffic at his home. Hamilton has been a state police officer since 1997 and was, on August 3, 2014, stationed with Troop E in Bangor, where he supervised eight troopers. Since 2000, Hamilton has served on the Maine State Police Tactical Team, a unit specially trained and equipped to respond to high-risk incidents, and, since 2010, has served as one of the Team's assistant commanders. As a member of the Tactical Team, Hamilton participates in multi-day trainings every month, which include components on the use of deadly force. Hamilton has been trained that the role of an officer using a precision rifle in a high-risk incident includes observing the incident from a vantage point, relaying observations to other officers, and using deadly force if necessary to protect others on the scene from imminent threats of serious bodily injury. He has further been trained throughout his career in the concept of “action beats reaction”; that is, the concept that a person who decides to use force against an officer possesses an inherent advantage due to the reaction time required before the officer can effectively respond to the person's action. It is thus Hamilton's training that officers must take into consideration the time it would take them to react to a sudden action by a person as they assess and respond to the threat posed by that person. From his training and experience, Hamilton is also familiar with the concept known as “suicide by cop, ” in which a suicidal individual threatens or uses force, up to and including deadly force, against police in an attempt to provoke the police into responding with deadly force. Based on his training and experience, Hamilton is aware that an individual attempting “suicide by cop” can be very dangerous.

         After learning that Troop E officers were responding to the Bennoch Road incident, Hamilton decided to respond and traveled from his home to the scene in an unmarked police cruiser and wearing a tactical uniform. Hamilton understood that the incident involved a male who had threatened to harm himself and was holding a handgun to his head. Hamilton arrived at the scene at 4:47 p.m. and learned that Conlogue was sitting on a rock bordering the parking lot, armed with a small, semi-automatic handgun. Hamilton was not told, and at no point learned, any further details about the gun, such as the caliber or model. He was aware that semi-automatic handguns do not need to be cocked between shots and can fire multiple rounds very rapidly. Hamilton also learned the general positions of the other officers on the scene. Although he could not see Fiske and Snow's position, Hamilton understood that they were across Bennoch Road from Conlogue.[9](See Declaration of Scott Hamilton (“Hamilton Decl.”) (ECF No. 36-5) ¶¶ 24, 36; Deposition of Scott Hamilton (“Hamilton Dep.”) (ECF No. 36-17), PageID # 321.)

         After discussion with Birch and Millett, Hamilton contacted the Maine State Police Crisis Negotiations Team and requested that trained crisis negotiators be deployed to the scene. Based on Conlogue's stationary position, it was decided to wait for the arrival of any negotiator before attempting to communicate with him. Around 5:02 p.m., [10] Fiske reported over the radio: “He's standing up right now. . . . Gun in his left hand to his head. He looks pretty lethargic. But he is walking. He just took a few steps but he's still by the rock.”[11] (Fiske Rec. at 1:04:49.) A few minutes later, Fiske reported, “He's teetering back and forth pretty good.” (Fiske Rec. at 1:06:30.) Hamilton was carrying a precision rifle equipped with a magnifying scope, which he adjusted to a magnification of 16x. Upon learning that Conlogue was moving, Hamilton went to Trooper Taylor Dube's position in the tree line south of the restaurant to observe Conlogue through his magnified rifle scope. Hamilton subsequently used the scope to observe Conlogue at those times Conlogue was within Hamilton's line of sight. From this position with Dube, Hamilton could not see the rock on which Conlogue had been sitting-that is, he could not see the entirety of the parking lot north of the restaurant building-but could see the Conlogue vehicle, which was positioned in front of the restaurant with its back end facing him. Hamilton was also unable to see Fiske and Snow in their positions. However, Hamilton was able to clearly hear the radio traffic at all times.[12]

         Upon arriving at Dube's position, Hamilton saw Conlogue emerge from the north side of the building holding a handgun to his head, walk to his vehicle, and eventually go back behind the building and out of Hamilton's view. Hamilton then returned to the command post and discussed the situation with Birch and Millet. It was agreed that, due to Conlogue's increased movement, communication with him should be attempted while they awaited the arrival of any negotiator. Hamilton also called a Tactical Team member and requested that he bring the Team's armored vehicle to the scene so that any negotiator could get closer to Conlogue while remaining relatively safe.[13]

         Meanwhile, around 5:08 p.m., Fiske reported over the radio: “Now he's got eyes on us. He's trying to figure out where we are. . . . He just looked 360. He's trying to figure out where we are.” (Fiske Rec. at 1:10:35.) Around 5:11 p.m., as Conlogue moved within the parking lot and got closer to the road, Fiske reported that Conlogue was moving “a little bit quicker now.” (Fiske Rec. at 1:13:35.) Fiske then reported that Conlogue's “sobriety seems to have improved greatly.” (Fiske Rec. at 1:14:54.) Several minutes later, following Hamilton's discussion with Birch and Millett regarding attempting communications with Conlogue while waiting for a negotiator, Sergeant William Sheehan of the Sheriff's Office began attempting to communicate with Conlogue using the public address system in a trooper's cruiser. Although Fiske initially found it difficult to hear communications made over the public address system, which was positioned to his south, the volume was increased and he had no difficulty hearing Sheehan after the first fifteen minutes.[14] Sheehan repeatedly assured Conlogue that they were concerned about him and wanted to get him some help. Throughout the incident, Sheehan also repeatedly asked Conlogue to put down his gun.

         Around 5:26 p.m., Fiske reported over the radio: “Just be aware, he's a lot more alert than he was when he first stood up and his balance has improved considerably.” (Fiske Rec. at 1:28:32.) Around 5:41 p.m., it was reported over the radio that Conlogue was left-handed. Fiske then reported that Conlogue was yelling “fuck you, fuck you!” and noted, “he's definitely, uh, he's hearing what [Sheehan's] saying.” (Fiske Rec at 1:44:52.) Around 5:56 p.m., Fiske reported that Conlogue was standing up with the gun in his left hand.[15] A few minutes later, Conlogue retrieved an item from his vehicle and placed it in his back pocket. Fiske was able to see the item a bit later in the stand-off and reported that it “was a big knife that he put in his back pocket that he got out of the vehicle, so he's now armed with a knife as well.” (Trooper Snow Cruiser Recording (“Snow Rec.”) (ECF No. 36-2) at 17:20.)

         Around 6:03 p.m., Fiske reported that Conlogue “just pointed at us over here with his finger. He's thinking about something.” Fiske added, “He just pointed his finger in our direction like a gun and he's eyeballing us pretty hard.” (Snow Rec. at 16:32-16:50.) Fiske then reported, “He's pointing at us again, so tell him that we're not here to hurt him. We're not here to hurt him.” (Snow Rec. at 18:19.) Sheehan conveyed this message to Conlogue over the PA system. Fiske reported, “He's using his finger like a gun, and he's pointing at us. He just said-signaled to us that he knows we're here, he can see us; he pointed at us like his finger is a gun.” Fiske further reported that Conlogue “pointed to his own eyes then toward us and then pointed at us like his hand was a gun.” (Snow Rec. at 19:07-19:35.) A few minutes later, Fiske reported that Conlogue was “still doing the same hand gestures toward us.” (Snow Rec. at 22:03.) As Sheehan continued to speak to Conlogue over the PA, Fiske told Sheehan that Conlogue was “not acknowledging you at all.” (Snow Rec. at 23:14.) Fiske reported that Conlogue was “telling us to shoot him in the forehead” based on gestures Fiske observed Conlogue making with his hand toward his own forehead. (Snow Rec. at 24:08.)

         Meanwhile, Hamilton returned to Dube's position, where he remained for the duration of the incident.[16] Hamilton chose that position because it offered cover, concealment, and a view of the front of the restaurant. It was also a position that he could get to from the command post without being seen and potentially targeted by Conlogue.[17]

         Around 6:14 p.m., Fiske reported over the radio that Conlogue was “fixated with us-he's still making the, uh, pointing to his forehead.” (Snow Rec. at 27:47.) Fiske then reported that Conlogue “just pointed to every one of us [Fiske, Snow, and Hashey] and held up three fingers to let us know that he knows there's three of us over here.” (Snow Rec. at 28:49.) Sheehan, at Fiske's request, assured Conlogue that if he put the gun down, “we are not gonna just rush in on you.” (Snow Rec. at 30:20.) Fiske reported: “no response.”[18] (Snow Rec. at 31:02.) A few minutes later, Fiske reported that Conlogue “just pointed the gun downrange, uh, north, like along the roadway.” (Snow Rec. at 36:38.) Sheehan warned Conlogue: “Do not point the gun anywhere. . . . That is very important. . . . Do not point the gun around where you see people like me. Do not do that.” (Snow Rec. at 36:52.)[19] Fiske then radioed to clarify the location of the deputy sheriff positioned to the north of Conlogue. Upon learning her position, Fiske noted that although Conlogue likely was not aware of the deputy sheriff's position, someone should warn the deputy sheriff that Conlogue was pointing the gun in her direction.

         Around 6:25 p.m., Fiske reported that Conlogue was “smiling and grinning at us.” (Snow Rec. at 39:13.) Snow asked Fiske to confirm to him that Conlogue was still armed, which Fiske confirmed. Snow then confirmed with Hashey that Hashey was aware that Conlogue was still armed.[20] Seconds later, Conlogue began walking toward Bennoch Road. Fiske, alarmed by Conlogue's movement, radioed to Sheehan, “Will, you gotta tell him to stop where he is, he's coming toward the road.” (Snow Rec. at 40:00.) Sheehan commanded Conlogue over the PA system, “do not come toward the road, ” “stop where you are, ” and “do not come any further.” (Snow Rec. at 40:05.) Conlogue eventually stopped and drew a line in the dirt near the entrance from the road to the parking lot. He pointed to the line and then to the troopers positioned across the road. Fiske reported over the radio that Conlogue had drawn “a line in the sand.” (Snow Rec. at 40:23.) Sheehan assured Conlogue over the PA that nobody would cross the line.

         Around 6:28 p.m., after Conlogue again started advancing toward the troopers across the road, Fiske radioed to Sheehan, “Will, tell him to stop, tell him to stop where he is.” (Snow Rec. at 41:32.) Sheehan again commanded Conlogue to stop. However, Fiske reported over the radio that Conlogue “just drew another line in the sand, but this one is a little bit closer.” (Snow Rec. at 41:44.) After Conlogue retreated but then again started advancing toward the troopers across the road, Fiske radioed to Sheehan, “tell him to stop where he is.” (Snow Rec. at 43:37.) Sheehan commanded Conlogue over the PA: “Lewis, you need to stop where you are. Lewis, stop where you are.” (Snow Rec. at 43:38.) Fiske reported that Conlogue was “still advancing toward the road.” (Snow Rec. at 43:46.) Sheehan then commanded Conlogue to “put the gun down and stop.” (Snow Rec. at 43:55.) Fiske reported that Conlogue had stopped and was “just challenging us; he's holding his hands up.” (Snow Rec. at 43:58.) Fiske then asked Sheehan to tell Conlogue to put the gun down, and Sheehan commanded Conlogue over the PA, “put the gun down, Lewis.” (Snow Rec. at 44:06.) Upon seeing Conlogue again advancing toward the road, Fiske radioed, “tell him to stop, he's coming closer!” (Snow Rec. at 44:13.) Sheehan again stated over the PA, “Lewis, I need you to stop” and “you need to stop and put the gun down.” (Snow Rec. at 44:17.) From hearing Fiske's tone of voice over the radio while Conlogue was advancing, Hamilton could tell that Fiske was concerned for his safety. Roughly twenty seconds after Sheehan issued the latest commands, Conlogue turned and moved away from the road, still holding the gun. Fiske reported that Conlogue had retreated but still had the gun in his hand, held up to his temple.

         For the remainder of the incident, Conlogue appeared to be fixated on Fiske, Snow, and Hashey, staring at them nearly continuously. Around 6:33 p.m., Fiske reported that Conlogue was looking at him and leaning against his vehicle, approximately fifty yards from Fiske's position, with the gun in his left hand. Because Hamilton could not see Fiske from his position, he was unable to make his own estimate of Conlogue's distance from Fiske. In shooting drills with his semi-automatic service handgun, Hamilton more often than not hits targets the approximate size of a human torso and head at a distance of fifty yards. Hamilton was aware that Fiske was observing Conlogue in order to report his actions over the radio, and Hamilton therefore believed that Fiske was at least partially exposed to Conlogue so that Fiske could observe him.[21]

         Around 6:36 p.m., Fiske radioed: “Just so everybody knows, he's got the gun in his left hand, small auto, and he's got a big knife in his rear pocket.” (Snow Rec. at 49:59.) A few minutes later, Fiske asked Hamilton over the radio whether, if Conlogue advanced on Fiske, Snow, and Hashey, and they were forced to fire upon him, Hamilton was “in harm's way.” (Snow Rec. at 55:41.) Hamilton (via Dube) responded in the negative. Fiske then reported that Conlogue was “still pointing at us.”[22] (Snow Rec. at 56:09.) Around 6:46 p.m., Conlogue held up a magazine that was fully loaded with bullets, displayed it to the officers, and then set it down on the hood of his vehicle. Fiske reported: “He just showed us a fully loaded magazine to that handgun, held it up to us.” When asked over the radio if Conlogue put the magazine back into his gun, Fiske stated, “I don't know if this is an additional [magazine]. I didn't see him take it out, so it's probably an extra one.” (Snow Rec. at 1:00:13-1:00:42.) Sheehan repeatedly instructed Conlogue over the PA system to remove the magazine that was already in the gun without pointing the gun at anybody. Fiske reported, “no response.” (Snow Rec. at 1:02:33.) Around 6:50 p.m., Fiske reported: “Alright, he took the mag out of the gun and put the one that was fully loaded into the gun.” (Snow Rec. at 1:03:37.)

         Around 6:57 p.m., Conlogue raised the gun into the air and then pointed it over the heads of the officers positioned across the road. Fiske reported: “He's bringing that gun down, it's getting dangerously close here.” (Snow Rec. at 1:10:35.) During this time, Sheehan again repeatedly instructed Conlogue to put down the gun, saying, among other things, “Lewis, it is very, very important that you put the gun down”; “Lewis, you need to put the gun down”; and “this is not a joke, you need to follow these commands. Put the gun down. Do not point it at any woodline, at any residence-do not do that. Do you understand?” (Snow Rec. at 1:11:07-1:12:03.)

         Although Hamilton's view was partially obscured by the passenger cabin of Conlogue's vehicle, he could see that Conlogue was leaning over the hood of the vehicle with his weapon extended in the direction of Bennoch Road. At Hamilton's request, Dube asked Fiske over the radio: “Is he leveling it in your direction?” (Snow Rec. at 1:10:58.) Fiske responded: “No, he's just taunting us. But if it drops any lower, he's in trouble.” (Snow Rec. at 1:11:01.) Shortly thereafter, Dube, at Hamilton's request, again asked Fiske where the gun was pointing. Fiske responded: “It's up over our heads, at a forty-five degree angle. It's no longer pointed at his own head.” (Snow Rec. at 1:11:25.) Around 6:58 p.m., Dube, at Hamilton's request, again asked Fiske where the gun was pointing. Fiske responded: “Gun is in his left hand, it is no longer pointed at his own head. He's pointing it straight up in the air.” (Snow Rec. at ...


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