United States District Court, D. Massachusetts
DAMARIS JUSTINIANO, as the Personal Representative of the Estate of WILFREDO JUSTINIANO Jr., Plaintiff,
STEPHEN WALKER and TIMOTHY P. ALBEN, Defendants.
MEMORANDUM AND ORDER
L. CABELL, U.S.M.J.
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.
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
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).
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).
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. (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
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 ¶
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).
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
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).
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).
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.).
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 ¶
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).
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 ¶¶
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. For his part, Trooper Walker recalled that
just prior to the shooting, ...