Bannon v. Godin

99 F.4th 63

Jennifer Root BANNON, as the Special Personal Representative of the Estate of Juston Root, Plaintiff, Appellant, v. David GODIN, Boston Police Officer; Joseph McMenamy, Boston Police Officer; Leroy Fernandes, Boston Police Officer; Brenda Figueroa, Boston Police Officer; Corey Thomas, Boston Police Officer; Paul Conneely, Massachusetts State Trooper; The City of Boston, Defendants, Appellees.

No. 22-1958

United States Court of Appeals, First Circuit

April 22, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge]

Mark A. Berthiaume, with whom Gary R. Greenberg, Alison T. Holdway, Courtney R. Foley, and Greenberg Traurig, LLP were on brief, for appellant.

Edward F. Whitesell, Jr., with whom Bridget I. Davidson and City of Boston Law Department were on brief, for appellees David Godin, Joseph McMenamy, Leroy Fernandes, Brenda Figueroa, Corey Thomas, and the City of Boston.

Daniel J. Moynihan, Jr., with whom Mark A. Russell and Law Office of Daniel J. Moynihan, P.C. were on brief, for appellee Paul Conneely.

Before Gelpí, Lynch, and Montecalvo, Circuit Judges.

LYNCH, Circuit Judge.

On February 7, 2020, after Juston Root pointed a gun at a hospital security guard and a responding Boston police officer, shot that gun at police and disregarded police instructions to drop the weapon, led the officers on a high-speed chase down busy urban streets and crashed his Chevrolet Volt, and then ran from the officers and disregarded further commands to stop and drop his gun, six law enforcement officers from two separate law enforcement agencies responding to the reports of his activities fired at him, all simultaneously perceiving that he was again reaching for his gun. Their shots proved to be fatal. After the event, the officers confirmed that he indeed had a gun on his person at the time of the shootings and was carrying two additional guns in his car.

His sister, Jennifer Root Bannon, acting as the representative of his estate, sued six of the officers involved -- Massachusetts State Trooper Paul Conneely and Boston Police Department ("BPD") Officers Leroy Fernandes, Brenda Figueroa, David Godin, Joseph McMenamy, and Corey Thomas -- and the City of Boston ("City"), alleging, inter alia, that the officers employed excessive force in violation of the Fourth Amendment during the fatal shooting. The district court granted summary judgment to the defendants. See Bannon v. Godin, No. 20-cv-11501, 2022 WL 17417615, at *1 (D. Mass. Dec. 5, 2022).

We agree with the district court's conclusion that the officers acted reasonably under the circumstances during the fatal shooting and so did not violate the Fourth Amendment. We independently hold that the officers are entitled to qualified immunity. We also affirm the grant of summary judgment on Bannon's other claims.

I.

A.

At roughly 9:20 a.m. on the morning of February 7, 2020, BPD received a report of an individual with a gun at Brigham and Women's Hospital ("BWH").¹ A BPD dispatcher relayed the information that a man had pulled a gun on BWH security. Officer Godin responded to the call, as did BPD Officer Michael St. Peter.

Upon arriving at BWH, Officer Godin was approached by a hospital security officer who said that a man had just pointed a gun at him. The security officer pointed out the man's location to Officer Godin, who parked his cruiser and ran toward Vining Street, in the direction the security officer had pointed. As he turned onto Vining Street, Officer Godin saw a man in an unzipped black jacket, later identified as Root, walking toward him. Officer Godin observed that Root had a gun in his waistband. Bannon does not contest this point.²

Root falsely told Officer Godin that he (Root) was "law enforcement" and then turned and pointed up the street. Officer Godin did not believe that Root was law enforcement because law enforcement officers do not carry their firearms in their waistbands. Officer Godin drew his firearm and continued to approach Root. When Officer Godin and Root were within a few feet of one another, Root removed the gun from his waistband and pointed it at Officer Godin.

During this interaction, Officer St. Peter arrived on the scene. He too saw Root holding a gun in his hand. He ordered Root to "drop the gun." Civilian witnesses later told investigators that they also saw Root holding a gun.

Officer Godin saw Root start to pull the trigger on his gun and heard "gunshot noises." In response, Officer Godin shot at Root several times. As he did so, Officer Godin fell backward into the street. After seeing Root point his gun at Officer Godin and hearing shots, Officer St. Peter also shot at Root. Multiple civilian witnesses later told investigators that they believed Root had pulled the trigger and fired shots. Both Officer Godin and Officer St. Peter believed Root had been shot.

Still carrying the gun, Root limped to his car, a silver Chevrolet Volt which was parked nearby, and drove away.

Officer Godin returned to his cruiser and began pursuing Root. He also stated over the cruiser's radio that he had been involved in a shooting, that he had been shot at, and that he believed he had shot the suspect.

Additional BPD officers, including Officers Fernandes, Figueroa, McMenamy, and Thomas, joined the pursuit, which traveled down Huntington Avenue.³ These officers understood Root was armed with a gun.

During the pursuit, Officer McMenamy intentionally struck the side of Root's Volt with his cruiser, in what the parties refer to as a "Precision Immobilization Technique ('PIT') maneuver." Officer McMenamy stated during a deposition that, at the time of the collision, the vehicles were moving at approximately twenty to thirty miles per hour. He also acknowledged that he had been aware at the time that the maneuver violated BPD policy, which forbids intentionally colliding with a pursued vehicle. The collision brought both vehicles to a stop. Officer McMenamy got out of his cruiser, drew his firearm, and ordered Root to show his hands. Root did not obey, rather Root not only drove away at high speeds, but used his Chevrolet Volt to push Officer McMenamy's cruiser out of the way to do so.

The high-speed pursuit continued down Huntington Avenue and on to Route 9,⁴ moving from Boston to Brookline. Root's Volt reached speeds of up to ninety miles per hour, and traffic camera footage shows him weaving dangerously through other vehicles at high speeds. At some point along Route 9, State Trooper Conneely joined the pursuit, having heard over his radio that shots had been fired at BWH and that a pursuit was ongoing.

At the intersection of Route 9 and Hammond Street in Brookline, Root's Volt collided with three civilian vehicles and came to a stop on Route 9 near the entrance to a shopping center parking lot. The collision caused extensive damage to Root's Volt; multiple tires fell off, glass shattered, and the airbags deployed.⁵

Several sources of evidence consistently describe the events that occurred at the site of Root's collision in Brookline. Traffic camera footage, officer body-worn cameras, and civilian cell phone footage captured documentary evidence of the events and officers' contemporaneous statements. Officers and witnesses also described the events in interviews with investigators in the days following the shooting and, in some cases, in later depositions in this case. We describe each in turn.

1. Documentary Evidence of Shooting in Brookline

Traffic camera footage shows that, at the time of the collision and throughout the confrontation that followed, which occurred at roughly 9:30 a.m. on a Friday, there were numerous cars in the parking lot and a steady stream of traffic down the opposite side of Route 9.

Root got out of his car and continued fleeing on foot. He moved toward a mulched area adjacent to the parking lot's entrance. He fell on the sidewalk but rose to his feet and continued into the mulched area, where he fell again.

Shelly McCarthy, a civilian with EMS training who had been in her car in the parking lot, saw Root leave his vehicle and ran to his side. McCarthy spent less than ten seconds by Root's side. Multiple approaching officers, including at least Officers Godin and McMenamy, ordered her to get away from Root, and she did so at a run.

Officer Figueroa's body-worn camera was recording throughout the confrontation in Brookline. Officer Figueroa ran to the mulched area and ordered Root to "get down" and to "let [her] see [his] hands." Her camera recorded audio of several other officers giving similar commands. Officer Figueroa adopted a stance which blocked the camera's lens as officers continued to order Root to get on the ground and show his hands. Just before officers fired, the camera recorded an officer begin a command to Root to "drop ...."

Officer Figueroa's camera footage shows that after he was shot, Root fell over in a fetal position on his right shoulder facing the officers, with his chest area rolled partially toward the ground.

Officer Figueroa's body-worn camera recorded that she and Trooper Conneely, along with other officers, approached Root immediately after the shooting. The footage shows officers roll Root over and secure his hands. The footage shows Trooper Conneely reach into Root's chest area. An officer asks, "Where is the firearm?" and Officer Figueroa responds, "It's under--it's underneath him." An officer then says, "I got it, I got it, I got it, it's secure," and Trooper Conneely walks away with a gun in his right hand. The camera recorded Trooper Conneely with Root's gun in his right hand roughly five seconds later and again roughly a minute later.

Shortly after the shooting, Officer McMenamy's body-worn camera recorded him stating to another officer present that after he had ordered McCarthy to run "[Root] starts -- he opens the thing and he starts reaching for it he's got it right there he starts reaching for it on...