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Gray v. Cummings

United States Court of Appeals, First Circuit

February 22, 2019

JUDITH GRAY, Plaintiff, Appellant,

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Timothy S. Hillman, U.S. District Judge] [Hon. David H. Hennessy, U.S. Magistrate Judge]

          Matthew R. Segal, with whom Ruth A. Bourquin, American Civil Liberties Union Foundation of Massachusetts, Inc., Claudia Center, American Civil Liberties Union Foundation, Richard L. Neumeier, and Morrison Mahoney LLP, were on brief, for appellant.

          David W. Ogden, Daniel S. Volchok, Alexandra Stewart, Wilmer Cutler Pickering Hale Da and Dorr LLP, Aaron M. Panner, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C, Nathalie F. P. Gilfoyle, Deanne M. Ottaviano, and Jennifer Mathis on brief for American Psychiatric Association, American Psychological Association, and Judge David L. Bazelon Center for Mental Health Law, amici curiae (in support of neither party).

          Thomas R. Donohue, with whom Deidre Brennan Regan, Leonard H. Kesten, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief, for appellees.

          Eric R. Atstupenas, Christopher J. Petrini, Peter L. Mello, and Petrini & Associates, P.C. on brief for International Municipal Lawyers Association and Massachusetts Chiefs of Police Association, Inc., amici curiae (in support of affirmance).

          Pamela B. Petersen on brief for Axon Enterprise, Inc., amicus curiae (in support of affirmance).

          Before Kayatta, Circuit Judge, Souter, [*] Associate Justice, and Selya, Circuit Judge.


         This appeal arises at the intersection of constitutional law and disability-rights law. It touches upon a plethora of important issues. Some of these issues relate to the appropriateness of a police officer's use of a Taser in attempting to regain custody of a mentally ill person who, after being involuntarily committed, absconded from a hospital. Others relate to the applicability vel non of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-65, to ad hoc police encounters. In the end, we decide the case on the narrowest available grounds and affirm the entry of summary judgment for the defendants.

         I. BACKGROUND

         This case has its genesis in an on-the-street encounter between plaintiff-appellant Judith Gray (who suffers from bipolar disorder) and Thomas Cummings, a police officer in Athol, Massachusetts (the Town). Because the case was decided below at the summary judgment stage, we must take the facts in the light most hospitable to the non-moving party (here, Gray), consistent with record support. See Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999). We caution, though, that we are not obliged to credit "conclusory allegations, improbable inferences, acrimonious invective, or rank speculation." Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010).

Here, the raw facts are largely undisputed. In her deposition, Gray testified that she "really [didn't] know what happened" during the incident because she "was in a full-blown manic phase." She added that she "wouldn't know Officer Cummings if [she] fell over him" and that she had reviewed the police report prepared by Cummings and did not know whether or not it accurately described the events that had transpired. Nor did she present any other evidence contradicting Cummings's version of the relevant events. Although we recognize that juries have some leeway to "reject uncontradicted, unimpeached testimony when it is improbable, inherently contradictory, riddled with omissions, or delivered in a manner giving rise to doubts," Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 76 (1st Cir. 2002), that principle has no application here. Accordingly, we elicit many of the facts from Cummings's account. See Harriman v. Hancock County, 627 F.3d 22, 34 (1st Cir. 2010) (finding no material factual dispute when plaintiff "had no memory of being beaten by anyone at anytime relevant to this case"); see also Wertish v. Krueger, 433 F.3d 1062, 1065 (8th Cir. 2006) (deeming police officer's version of events "unrefuted" when plaintiff testified that he had very little memory of relevant events). Even so, we draw all reasonable inferences from those facts in Gray's favor.

         On May 2, 2013, Gray - who was then fifty-seven years old - experienced a manic episode and called 911. Athol police officers arrived at Gray's home and transported her to Athol Memorial Hospital. She was admitted to the hospital at around 4:00 a.m., pursuant to Mass. Gen. Laws ch. 123, § 12 (authorizing involuntary "[e]mergency restraint and hospitalization of persons posing risk of serious harm by reason of mental illness"). Approximately six hours later, Gray absconded from the hospital on foot. Hospital staff called the Athol Police Department, asking that Gray - "a section 12 patient" - be "picked up and brought back."

         Cummings responded to the call and quickly located Gray, walking barefoot along the sidewalk less than a quarter-mile from the hospital. Cummings got out of his police cruiser. Gray swore at him, and Cummings told her that she "ha[d] to go back to the hospital." Gray again used profanity, declared that she was not going back, and continued to walk away. In response, Cummings radioed for backup and followed Gray on foot. He repeatedly implored Gray to return to the hospital, but his importunings were greeted only by more profanity.

         Initially, Cummings followed Gray at a distance of roughly one hundred feet. Within twenty-five to thirty seconds, he closed to within five feet. At that point, Gray stopped, turned around, "clenched her fists, clenched her teeth, flexed her body and stared at [Cummings] as if she was looking right through [him]." She again swore at Cummings and started walking toward him. Cummings grabbed Gray's shirt but he could feel Gray moving her body forward, so he "took her to the ground." It is undisputed that Cummings had a distinct height and weight advantage: he was six feet, three inches tall and weighed 215 pounds, whereas Gray was five feet, ten inches tall and weighed 140 pounds.

         Cummings testified that once on the ground, he repeatedly instructed Gray to place her hands behind her back. She did not comply. Instead, she "tucked her arms underneath her chest and flex[ed] tightly," swearing all the while. Cummings warned Gray that she was "going to get ta[s]ed" if she did not place her hands behind her back.[1] Gray did not heed this warning but, rather, swore at Cummings again and told him to "do it." Cummings made "one last final demand [for Gray] to stop resisting" and when "Gray refused to listen," he removed the cartridge from his Taser, placed it in drive-stun mode, [2] and tased Gray's back for four to six seconds. Gray then allowed him to handcuff her.

         Cummings helped Gray to her feet and called an ambulance, which transported Gray to the hospital. According to Gray, she felt "pain all over" at the moment she was tased, but she "must have passed out because [she] woke up in Emergency." Charges were subsequently filed against Gray for assault on a police officer, resisting arrest, disturbing the peace, and disorderly conduct, but were eventually dropped.

         In due season, Gray sued Cummings and the Town in the federal district court. She invoked federal question jurisdiction, see 28 U.S.C. § 1331, and asserted causes of action under 42 U.S.C. § 1983 and Title II of the ADA, along with supplemental state-law claims for assault and battery, malicious prosecution, and violations of the Massachusetts Civil Rights Act (MCRA), Mass. Gen. Laws ch. 12, §§ 11H-11I. After the completion of pretrial discovery, the defendants moved for summary judgment. See Fed.R.Civ.P. 56(a). The district court referred the opposed motion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Following a hearing, the magistrate judge issued a report and recommendation, suggesting that the motion be granted. Specifically, the magistrate judge found no violation of the Fourth Amendment under section 1983 on the part of either Cummings or the Town and no viable state-law claims. As to Cummings, the magistrate judge added that, in any event, he was entitled to qualified immunity. The magistrate judge further concluded that there had been no abridgement of the ADA because, regardless of Gray's disability, Cummings was entitled to employ an "appropriate level of force in response to an ongoing threat."

         Gray objected to the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). On de novo review, see Mercy Hosp., Inc. v. Mass. Nurses Ass'n, 429 F.3d 338, 343 (1st Cir. 2005), the district court entered a two-sentence text order adopting the magistrate judge's report and recommendation in substantial part. Because the court agreed that Cummings was entitled to qualified immunity, it declined to express any opinion on the magistrate judge's determination that "Cummings employed reasonable force under all of the circumstances."

         This timely appeal followed. In addition to the parties' briefs and oral argument, we have had the benefit of able briefing by several amici.

         II. ANALYSIS

         We review an order granting summary judgment de novo. See Houlten Citizens' Coal., 175 F.3d at 184. "We will affirm only if the record reveals 'that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011) (quoting Fed.R.Civ.P. 56(a)). Against this backdrop, we proceed to Gray's claims.

         A. The Section 1983 Claims.

         Section 1983 supplies a private right of action against a person who, under color of state law, deprives another of "any rights, privileges, or immunities secured by the Constitution and [federal] laws." 42 U.S.C. § 1983. To maintain a cause of action under section 1983, "the plaintiff must show a deprivation of a federally secured right." Harrington v. City of Nashua, 610 F.3d 24, 28 (1st Cir. 2010). Gray has advanced separate section 1983 claims against Cummings and the Town. We address these claims sequentially.

         1. Cummings.

         Gray's section 1983 claim against Cummings is premised on the notion that Cummings used excessive force in effecting her arrest and, thus, violated her Fourth Amendment rights. To prevail on such a claim, "a plaintiff must show that the defendant employed force that was unreasonable under all the circumstances." Morelli v. Webster, 552 F.3d 12, 23 (1st Cir. 2009) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)). The degree of force to be used in any given situation is most often a judgment call, which sometimes must be made in a split second by a police officer confronted with rapidly evolving circumstances. Determining whether a particular use of force is reasonable requires consideration of the totality of the circumstances. See Graham, 490 U.S. at 396. This consideration entails the weighing of a myriad of factors such as "the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether [the suspect was] actively resisting arrest or attempting to evade arrest by flight." Id.

         Our starting point is the question of whether a reasonable jury could find that Cummings violated Gray's Fourth Amendment rights through the use of excessive force. The magistrate judge answered this question in the negative, concluding that, as a matter of law, "the single deployment of a taser in drive stun mode" in these particular circumstances was reasonable. Viewing the record most hospitably to Gray and drawing all reasonable inferences to her behoof, we think that a reasonable jury could find that the force employed by Cummings violated the Fourth Amendment. We explain briefly.

         The Town's policies describe a Taser in drive-stun mode as a "pain compliance tool."[3] Thus, the question reduces to whether the circumstances surrounding the confrontation between Gray and Cummings, interpreted in the light most favorable to Gray, justified Cummings's use of such a tool.

         The magistrate judge analyzed this question in accordance with the Graham factors. In his view, the first factor - "the severity of the crime at issue," id. - favored Cummings because "Ms. Gray assaulted [him]." At summary judgment, though, this assessment is insupportable: it fails to view the facts in the light most favorable to Gray.

         In this regard, we think it important that Cummings was not called to the scene to investigate a crime; he was there to return a person suffering from mental illness to the hospital. When the subject of a seizure has not committed any crime, the first Graham factor ordinarily cuts in the subject's favor. See Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d 892, 899 (4th Cir. 2016). To be sure, Gray did not submit to Cummings's orders. Withal, this failure to obey was at most a minor crime, not one that would tip the first Graham factor in Cummings's favor. See id. at 899-900.

         Nor does the alleged assault tilt the scales. In Cummings's view, the assault occurred when, after Gray walked toward him, he grabbed her shirt and she "continued pushing against [his] arm." In the circumstances of this case, we think that a reasonable jury could find that the facts did not ...

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