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Justiniano v. Walker

United States District Court, D. Massachusetts

September 30, 2018

DAMARIS JUSTINIANO, as the Personal Representative of the Estate of WILFREDO JUSTINIANO Jr., Plaintiff,


          DONALD L. CABELL, U.S.M.J.

         This case arises from a tragic and unfortunate incident. Massachusetts State Police Trooper Stephen Walker responded to a call and in the course of their encounter shot and killed Wilfredo Justiniano Jr. Damaris Justiniano has brought suit as the personal representative of Justiniano's estate, and the complaint presently alleges claims against Trooper Walker for excessive force and wrongful death. The defendant moves for summary judgment on both counts and the plaintiff opposes. (Dkt. No. 58, 73). After careful consideration of the record, the parties' submissions, and the information adduced at a hearing on the motion, the motion for summary judgment will be GRANTED. The reasons for this ruling are explained below.


         On June 14, 2013, Karen Kyriakides (“Kyriakides”) was driving on Route 28, a multilane state highway, when she observed the car in front of her drive erratically before coming to a stop on the side of the road. (Defendant Stephen Walker's Statement of Undisputed Material Facts In Support of His Motion For Summary Judgment (“Defendant's SUF”), at ¶¶ 56-58). When Kyriakides passed the vehicle she observed a man, later identified as Justiniano, holding his right hand over his heart with his head tilted back. (Id., at ¶ 58). Kyriakides approached the vehicle to check on him. As she did so, Justiniano got out of his car and appeared distraught and confused. (Id.). Kyriakides asked Justiniano if he needed a doctor and “he answered in a language that [Kyriakides] did not understand.” (Id.). Kyriakides instructed Justiniano to sit in his car while she went to call the police and for an ambulance. (Id.). Justiniano complied with her instructions. (Id.).

         Kyriakides returned to her vehicle and dialed 911. She informed the operator that there was a possible medical emergency and that she was concerned for the man's safety as well as the safety of others. (Id., at ¶ 59). While on the phone with the police, Kyriakides observed Justiniano outside of his vehicle throwing his arms and hands up in the air and titling his head back. (Id., at ¶ 60). He appeared as though “he was speaking in tongues.” (Id.). Kyriakides observed Justiniano pacing and walking around his car and thought he might walk into the travel lane of the road. (Id. ¶¶ 61-62).

         Trooper Walker responded to the call. (Id., at ¶¶ 15-16). When he arrived on the scene he observed Justiniano standing in the roadway, yelling and jumping up and down. (Id., at ¶ 17). Before exiting his vehicle to assess the situation, Trooper Walker radioed dispatch that he was on the scene. He also requested that another unit be dispatched because “something di[d not] feel right.” (Id., at ¶¶ 20-21).

         Trooper Walker approached Justiniano and asked him “what was wrong, what was going on, [or] something to that effect.” (Id., at ¶ 23). Justiniano, who was about 14 to 20 feet away, told Trooper Walker that he was “an undercover cop” and that Walker would have to kill him.[1] (Id., at ¶ 25). Unbeknownst to Trooper Walker at the time, Justiniano had a long history of mental illness which included a history of non-compliance with respect to taking his medication. (Id., at ¶ 84-85).

         Kyriakides, still in her car, could not hear the conversation between Justiniano and Walker because her windows were closed. She did however observe Trooper Walker speaking to Justiniano and appearing to try and calm him down. (Id., at ¶ 64).

         Justiniano slowly approached Trooper Walker and repeated that he (Walker) would have to kill Justiniano, and that if he did not, Justiniano would kill him. (Id., at ¶¶ 28-29). Trooper Walker gestured to Justiniano to stop advancing and he simultaneously backed up slightly to maintain the distance between them. (Id., at ¶ 26). Trooper Walker also observed that Justiniano was holding a blue stick ballpoint pen just as one would hold a knife. (Id., at ¶ 27).

         Notwithstanding Trooper Walker's gesture that he stop, Justiniano began to pick up speed. Trooper Walker warned him to stop approaching and to drop the pen. (Id., at ¶¶ 31-32). Justiniano did not drop the pen and continued to walk towards Trooper Walker. (Id., at ¶¶ 31-33).

         Jo-Ann Silva-Winbush (“Winbush”) was in a car as she approached the two men and slowed down after observing police lights. She observed a police officer, presumably Trooper Walker, jump backwards in front of her car, in the travel lane of the roadway. (Id., at ¶ 70). She then observed a man, presumably Justiniano, “running after the cop.” (Id., at ¶ 71).

         Kyriakides also saw Justiniano and Walker close to the roadway. She did not see a weapon but it looked to her as though Justiniano was ready to jump on Trooper Walker. (Id., at ¶ 65; Plaintiff's SUF, at ¶ 89).

         Winbush observed Trooper Walker signal Justiniano to stop by putting his left hand out with his palm facing Justiniano. Justiniano continued to approach Trooper Walker and at the same time pulled something from his waist. (Defendant's SUF, at ¶¶ 74-75). Trooper Walker was about 14 feet away from Justiniano and warned him that he would use pepper spray if Justiniano continued to advance. (Id.).

         According to Winbush, Justiniano moved towards Trooper Walker with his hands up near his shoulders and lunged at Trooper Walker. (Id., at ¶ 73). She observed that Trooper Walker then held up his hand to either signal Justiniano to stop or to use pepper spray. (Id., ¶¶ 73, 74). In fact, Trooper Walker emitted a short burst of pepper spray, which had no real effect on Justiniano. (Id., at ¶¶ 37, 76). Trooper Walker then jumped back again, further into the travel lane. (Id., at ¶ 72).

         Justiniano rubbed his face after being sprayed and appeared angry. (Id.). Justiniano continued to advance towards Trooper Walker and Trooper Walker in turn backed up to maintain the distance between them. Trooper Walker warned Justiniano that he would pepper spray him again if Justiniano continued to advance. This warning did not work and Justiniano continued to advance. Consequently, Trooper Walker used the pepper spray a second time. (Id., ¶¶ 37-39). This second use of the spray took place less than one minute after the first. (Defendant Stephen Walker's Supplemental Statement of Undisputed Material Facts in Support of His Motion for Summary Judgment (Defendant's Supp. SUF), at ¶ 106). Following the second burst, Trooper Walker radioed again for assistance. (Defendant's SUF, at ¶ 38).

         Like the first burst, the second burst of pepper spray did not seem to have any effect on Justiniano. However, some of the spray blew back into Trooper Walker's face and compromised his vision. (Id., at ¶ 40). A witness observed that Justiniano appeared “ready to fight now” and Trooper Walker jumped back further into the travel lane of the roadway as he tried to clear the pepper spray from his face. (Id., at ¶¶ 41, 77).

         Another witness stated that Justiniano then came “raging” at Walker with his fists up towards the Trooper's face. (Id., at ¶ 78). Yet another witness observed that Justiniano's fist was clenched and it appeared as though he might attack Trooper Walker. (Defendant Stephen Walker's Response to Additional Material Facts Submitted By Plaintiff, (“Defendant's Response”), at ¶ 104.[2] For his part, Trooper Walker recalled that just prior to the shooting, ...

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