United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Alfred Giannini (“Giannini”) brings two claims
against Defendants Town of Abington (“Abington”)
and Richard Gambino (“Gambino”) (collectively,
“Defendants”), relating to the shooting of
Giannini on August 21, 2013. D. 1-1. Giannini asserted Count
I against Gambino for excessive use of force under 42 U.S.C.
§ 1983 and Count II against Abington for negligence. D.
1-1. Abington previously moved for summary judgment as to
Count II, D. 14, and the Court allowed that motion, D. 18.
Defendant Gambino now seeks summary judgment as to the
remaining count, Count I, which is asserted only against him,
on the grounds that qualified immunity bars the claim against
him. D. 25. For the following reasons, the Court DENIES
Standard of Review
judgment is granted when there is no genuine dispute as to
any material fact and the undisputed facts establish that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). “A fact is material if it carries
with it the potential to affect the outcome of the suit under
the applicable law.” Santiago-Ramos v. Centennial
P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
(quoting Sánchez v. Alvarado, 101 F.3d 223,
227 (1st Cir. 1996)). A genuine dispute of material fact
occurs when the factual evidence “is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The moving party carries the burden of
establishing the absence of a genuine dispute of material
fact and that it is entitled to judgment as a matter of law.
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000). If the movant satisfies this burden, the non-moving
party may not merely refer to allegations or denials in her
pleadings. Anderson, 477 U.S. at 256. Instead, he
“must, with respect to each issue on which he would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v. Serrano-
Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a
general rule, [this] requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in
original). The Court must “view the record in the light
most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
following facts are undisputed unless otherwise noted. On
August 21, 2013, Gambino, a sergeant for the town of
Abington, learned over the radio that the Brockton Police
Department was in search of a reported stolen motor vehicle
driven by a suspect in an alleged stabbing incident. D. 26
¶ ¶ 1, 2; D. 29 ¶ 1, 2. Shortly
thereafter, Gambino, who was on duty in full uniform and a
marked police cruiser, observed the vehicle and identified
the driver as Giannini. D. 26 ¶ 2; D. 29 ¶ 5. Gambino
pursued him until Giannini exited the vehicle and fled on
foot. D. 26 ¶ 3; D. 29 ¶ 6. Gambino believed
Giannini to be armed and dangerous. D. 26-2 ¶ 63.
Shortly after Giannini fled on foot, Deputy Chief Christopher
J. Cutter (“Deputy Cutter”) spotted him at an
address in Abington. D. 26 ¶ 8. According to Deputy
Cutter, Giannini appeared from behind a house with no shirt
or shoes and walked towards Deputy Cutter. D. 26 ¶ 8;
see D. 29 ¶ 8. Deputy Cutter ordered Giannini
to stop and get on the ground before drawing his firearm. D.
26 ¶ 9. When Gambino arrived at the scene a short time
later, he found three police officers with firearms drawn on
Giannini - Deputy Cutter and Officer Barry A. Geraghty from
the Abington Police Department and Trooper Paul Minahan from
the Massachusetts State Police. D. 26 ¶ 12; D. 29 ¶
9. According to Gambino, he heard the other officers order
Giannini to “[s]how [his] hands, put it down, get on
the ground, show [his] hands.” D. 26 ¶ 13.
parties dispute whether Giannini complied with these
commands. D. 26 ¶ 10; D. 29 ¶ 9. According to
Trooper Minahan, Giannini told the officers that he did not
have a gun, but that as he was raising his hand, what
Giannini was carrying “looked like a gun.”
See D. 29 ¶ 0; D. 29-1 at 11-12. Giannini
testified that he was carrying a stick at the time. D. 29-2
at 24. Deputy Cutter testified, however, that after hearing
the officers' commands, Giannini continued to hide this
object from complete view of the officers by “switching
hands behind his back” and walk[ing] closer to the
officers. D. 26-3 ¶ 19. Deputy Cutter also testified
that Giannini instead yelled “I have a gun, ” D.
26-3 ¶ 20, and “[i]t's not gonna go this way,
” D. 26-3 ¶ 24. Gambino, Deputy Cutter and Officer
Geraghty testified Giannini concealed the weapon behind him.
D. 26-3 ¶ 25; 26-4 ¶¶ 13, 19; see D.
26 ¶ 32.
details surrounding the discharge of a taser prior to the
shooting are also in dispute. See D. 26 ¶ 26;
see also D. 29 at 4; D. 29-1 at 13. Gambino
testified that he initially discharged his taser once after
Giannini ignored the officers' requests to drop the gun.
D. 26-2 at 14-16; D. 26 ¶¶ 26-27, 29. According to
Gambino, when this attempt proved ineffective, he made an
effort to discharge it again, but as he was reloading,
Giannini became “agitated and began to close the
distance between them.” D. 26-2 at 16.
to Gambino, after his second attempt, he discarded his taser,
commanded Giannini to “show his hands, ”
“put down the weapon, ” “come peacefully
and avoid getting hurt.” D. 26-2 at 17. On
Gambino's account, Giannini took his hand from his right
side and brought it forward and it was at this point he saw a
wooden object he believed to be the “butt [ ] or the
stock end of a rifle.” D. 26-2 at 18-19. Gambino
testified he felt the “distance closing as [Giannini]
walked toward” him and at that point drew his firearm.
D. 26-2 at 18-19. Gambino believed Giannini to be
“assaultive, at serious bodily harm level, and felt the
lethal force was justified” and fired his pistol once
hitting Giannini. D. 26-2 at 19. Gambino's shot struck
Giannini in the chest. D. 1-1 ¶ 19; D. 26 ¶ 33.
filed a complaint against Defendants on November 23, 2016. D.
1-1. Abington moved for partial summary judgment of the one
count against Abington, Count II for negligence on April 11,
2017. D. 14. On May 5, 2017, the Court allowed this motion.
D. 18. Gambino now moves for summary judgment of Count I for
excessive use of force. D. 25. The Court heard argument on
the motion and took the matter under advisement. D. 38.