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Giannini v. Town of Abington

United States District Court, D. Massachusetts

June 29, 2018

ALFRED GIANNINI, Plaintiff,
v.
TOWN OF ABINGTON and RICHARD GAMBINO, Defendants.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiff 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 Gambino's motion.

         II. Standard of Review

         Summary 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).

         III. Factual Background

         The 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.[1] Shortly thereafter, Gambino, who was on duty in full uniform and a marked police cruiser, observed the vehicle and identified the driver as Giannini.[2] 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.

         The 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.

         The 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.

         According 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.

         IV. Procedural History

         Giannini 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.

         V. Discussion

         A. Quali ...


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