53 F.

3d 1367

John M. HEGARTY as Personal Representative of the Estate

of
Katherine A. Hegarty, Plaintiff, Appellee,
v.
SOMERSET COUNTY, Rene Guay, Wilfred Hines, Thomas
Giroux,
Jr., William Crawford, Jr., Defendants, Appellants.
John M. HEGARTY as Personal Representative of the Estate
of
Katherine A. Hegarty, Plaintiff, Appellee,
v.
SOMERSET COUNTY, et al., Defendants, Appellants.
John M. HEGARTY, Individually and as Personal
Representative
of the Estate of Katherine A. Hegarty, Plaintiff, Appellant,
v.
SOMERSET COUNTY, et al., Defendants, Appellees.
Nos. 94-1473, 94-1474, 94-1517.

United States Court of Appeals,

First Circuit.
Heard Oct. 4, 1994.
Decided May 17, 1995.

William R. Fisher, with whom Monaghan, Leahy, Hochadel & Libby,

Portland, ME, was on brief for appellants Guay, Hines, Giroux and
Crawford and defendant-appellee Spencer Havey.
Frederick J. Badger, Jr., with whom Ann M. Murray and Richardson,
Troubh & Badger, Bangor, ME, were on brief for appellant Wright.
Julian L. Sweet, with whom Jeffrey A. Thaler and Berman & Simmons,
P.A., Lewiston, ME, were on brief for plaintiff/appellant Hegarty.

Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and

McAULIFFE,* District Judge.
CYR, Circuit Judge.

On May 15, 1992, state and county law enforcement officers forcibly entered a
remote cabin in the Maine woods, without a warrant, and mortally wounded
plaintiff's decedent, Katherine A. Hegarty, while attempting to arrest her for
recklessly endangering the safety of four campers. Plaintiff John M. Hegarty
initiated the present action in federal district court for compensatory and
punitive damages against the defendant officers and their respective
supervisors, based on alleged violations of the Hegartys' statutory and
constitutional rights. See 42 U.S.C. Sec. 1983 (1992); Me.Rev.Stat.Ann. tit. 5,
Sec. 4682 (1992). After rejecting their qualified immunity claims, the district
court determined that the defendant officers were potentially liable for punitive
damages, and the officers initiated an interlocutory appeal. Plaintiff John M.
Hegarty in turn cross-appealed from district court orders granting summary
judgment in favor of Somerset County Sheriff Spencer Havey on qualified
immunity grounds and disallowing plaintiff's section 1983 claim for
compensatory damages for loss of spousal consortium.

2* BACKGROUND1
A. The Warrantless Entry
3

During the morning of the fateful day, two vehicles, containing four campers,
entered through a gate onto woodlands owned by a paper company in Jackman,
Maine, and proceeded to their assigned campsite about one and one-half miles
past the gate and 200 yards or so beyond the Hegarty cabin. At around 9:00 that
evening, Katherine Hegarty became extremely agitated when she saw the
campers returning to their campsite for the night, and began screaming that
they had trespassed on her property. The campers assured her that the caretaker
had given them permission to use the campsite and they would be leaving the
next morning. To which Katherine responded: "Only if you make it until
morning." She then retrieved a rifle from inside the cabin and fired six rounds
from the porch in the direction of the campers, who immediately took cover
behind their trucks and boat.

During the next hour or so, Katherine reloaded her rifle several times, firing
approximately twenty-five additional rounds in the direction of the campers
before eventually yielding to their pleas for permission to depart in safety.

Leaving their other belongings behind, the campers drove their vehicles quickly
past the cabin, where they saw Katherine on the porch, rifle in hand. Although
no further shots were fired, Katherine followed the campers in her truck beyond
the entrance gate, then turned back in the direction of her cabin.
5

Upon their arrival at a truck stop located on Route 201, approximately two
miles from the woods road entrance gate, the campers immediately placed a
telephone call to the Somerset County Sheriff's Department. Their report
described a harrowing encounter with an intoxicated, distraught ("flipped out")
and armed woman who might pursue them to the truck stop and shoot at them.
Four law enforcement officers were dispatched to the truck stop--Maine State
Trooper Gary Wright and three Somerset County Sheriff's Department officers:
Patrol Sergeant Wilfred Hines, Deputy Sheriff Rene Guay, and Reserve Officer
Thomas Giroux, Jr.

After briefly interviewing the four campers, the officers decided that the
suspect had committed at least one offense by shooting at the campers. See
Me.Rev.Stat.Ann. tit. 17-A, Sec. 211 (1994) (reckless endangerment).
Moreover, from the description the campers gave of the woman, the locations
of the cabin and the campsite, and from their knowledge of the area, the
officers concluded that Katherine Hegarty was their suspect. The officers knew
that Katherine was an experienced hunter and a licensed Maine guide, with a
reputation as a "crack shot," and that she kept several powerful firearms at her
cabin. Further, the officers knew she had some history of emotional instability
(i.e., a nervous "breakdown" in 1991, requiring sedation, physical restraints and
a brief period of involuntary hospitalization), substance abuse (two arrests for
operating a motor vehicle while under the influence of alcohol ("OUI") in
1991), and incidents of erratic, violent behavior directed at law enforcement
personnel--kicking and throwing punches at State Trooper Gary Wright, asking
irrational questions, and exhibiting extreme mood swings (alternately
screaming and laughing) at the time of her first OUI arrest, and an
assault/harassment against Trooper Wright at his residence shortly after the
same arrest. For these reasons, the officers concluded that they should arrest
Katherine immediately, without obtaining a warrant or informing her of their
true intentions until after she had been restrained, for fear that she would
become violent.

At around midnight, the officers rendezvoused with a fifth officer, Sergeant

William Crawford, Jr., of the Somerset County Sheriff's Department, drove
about three miles and parked their cruisers approximately a mile from the
Hegarty cabin. Their sporadic discussions since meeting at the truck stop had
led to a skeletal plan of action for effecting the arrest. Concerned that Katherine

might be waiting for them somewhere in the vicinity, they proceeded on foot
toward her cabin, led by Trooper Wright--with a police dog--in an effort to
forewarn themselves of Katherine's presence without heralding their approach.
As they neared, at approximately 12:15 a.m., the officers observed Katherine's
truck in front of the darkened cabin and heard a radio blaring music from
inside. The clearing surrounding the cabin was plainly visible in the moonlight,
but the cabin interior was not illuminated.
8

Following a quick visual inspection of the cabin site and the interior of the
Hegarty truck, four officers approached unannounced and placed themselves
along the outer cabin walls. The fifth officer, Thomas Giroux, Jr., who was
better acquainted with Katherine Hegarty, gave a prearranged signal to the other
officers from behind a tree across the road in front of the cabin. Giroux began
calling to Katherine by name--first identifying himself and then expressing
concern for her safety--in an attempt to coax her from the cabin to speak with
him. Giroux heard no response above the blaring radio. Sergeant Hines then
pounded on the cabin door and identified himself as a deputy sheriff. He
received no response.

Meanwhile, Sergeant Crawford, who had worked his way around to the rear of
the cabin, shined a flashlight into a darkened window and saw a fully-clothed
woman lying on a bed, with a rifle astride her chest. When the woman began to
raise the rifle in his direction, Crawford dove for cover, yelling out to the other
officers that there was an armed person inside the cabin. Katherine soon asked
Crawford to identify himself. After he did so, Crawford heard Katherine leave
the bedroom and move toward the front of the cabin. The radio soon became
inaudible.

10

As Katherine walked about inside the darkened cabin, she kept asking what the
officers were doing there, and requested that they leave her property. The
officers replied that they were investigating a report of campsite burglaries in
the area, were concerned for her safety, and wanted her to come out of the
cabin so she could speak with them. Laughing intermittently during these
exchanges, Katherine ultimately rejected their requests--stating that she had
seen no one suspicious.

11

Deputy Sheriff Rene Guay--posted outside the closed window at the front of
the cabin--next saw Katherine face-to-face as she peered out the window from
a kneeling position on a nearby couch. When Guay trained his flashlight on her,
Katherine said, "I can see you." At this time, Guay observed that Katherine had
no weapon in hand nor within the vicinity illuminated by his flashlight. Guay
immediately communicated this information to Sergeant Hines and Trooper

Wright, who were posted on either side of the front door, then gave them a
signal to "go."
12

Sergeant Hines proceeded to break in the front door, but a chain lock
momentarily delayed entry. From a crouched position outside the front
window, Guay saw Katherine pick up a rifle beside the couch and begin to
raise it in the direction of Hines and Wright, who were about to break through
the front door. As she continued to raise the rifle in their direction, the officers
ordered her to drop it. Katherine paid no heed and was fatally wounded by the
officers before she could fire a shot.

B. The District Court Proceedings

13

In January 1993, John Hegarty, in his individual and representative capacities,

filed a four-count complaint in the District of Maine against, inter alia, the five
officers and their respective supervisors, alleging deprivations of the Hegartys'
Fourth and Fourteenth Amendments rights, see 42 U.S.C. Sec. 1983 (1994), and
their state and federal statutory and constitutional rights under the Maine Civil
Rights Act ("MCRA"), Me.Rev.Stat.Ann. tit. 5, Sec. 4682 (1994).2 All
defendants moved for summary judgment, asserting qualified immunity from
suit under section 1983 and the MCRA, and contending that neither punitive
damages, nor compensatory damages for loss of spousal consortium, are
recoverable against them under section 1983 or the MCRA.

14

The district court ruled, inter alia, that (1) the five officers at the scene were not
immune from suit under either section 1983 or the MCRA, because no
objectively reasonable police officer could have concluded that the
circumstances confronting these officers gave rise to an exigency sufficient to
justify forcing a warrantless entry into the Hegarty cabin for the purpose of
effecting Katherine's immediate arrest; (2) punitive damages would be
recoverable were a jury to find that the officers at the scene acted with reckless
indifference; (3) Somerset County Sheriff Spencer Havey was entitled to
qualified immunity from suit relating to any "supervisory liability," since he
had no advance notice that officer training was deficient, and since his
subsequent conduct, though "troublesome," did not constitute "gross or reckless
indifference"; and (4) compensatory damages for loss of consortium were not
recoverable absent proof that the officers' conduct had been directed at John
Hegarty rather than at his deceased spouse alone.

15

The officers promptly took interlocutory appeals from the first and second
district court rulings. See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87,
90 (1st Cir.1994) (disallowance of qualified immunity claim is "final"

appealable order under Cohen "collateral order" doctrine). After the district
court directed that final judgment enter pursuant to Fed.R.Civ.P. 54(b) on its
third and fourth rulings, plaintiff John Hegarty cross-appealed.
II
DISCUSSION
A. The Officers' Immunity Claims
1. Standard of Review
16

We review a summary judgment order de novo, under the identical criteria

governing the district court, to determine whether "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);
see Jirau-Bernal v. Agrait, 37 F.3d 1, 3 (1st Cir.1994). All contested facts are
viewed in the light most favorable to the party resisting summary judgment. Id.
2. The Qualified Immunity Doctrine

17

Like other government officials performing discretionary functions, law

enforcement officers hailed into court in their individual capacities to respond
in damages are entitled to qualified immunity from suit in civil rights actions
under section 1983, provided their conduct did "not violate clearly established
statutory or constitutional rights of which a reasonable [police officer] would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738,
73 L.Ed.2d 396 (1982); Burns v. Loranger, 907 F.2d 233, 235 (1st Cir.1990). In
Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987),
the Supreme Court refined the focus of the policy considerations underlying the
qualified immunity doctrine.

18

When government officials abuse their offices, "action[s] for damages may
offer the only realistic avenue for vindication of constitutional guarantees."
Harlow v. Fitzgerald, 457 U.S., at 814 [102 S.Ct. at 2736]. On the other hand,
permitting damages suits against government officials can entail substantial
social costs, including the risk that fear of personal monetary liability and
harassing litigation will unduly inhibit officials in the discharge of their duties.
Ibid. Our cases have accommodated these conflicting concerns by generally
providing government officials performing discretionary functions with a
qualified immunity, shielding them from civil damages liability as long as their

actions could reasonably have been thought consistent with the rights they are
alleged to have violated. See, e.g., Malley v. Briggs, 475 U.S. 335, 341 [106
S.Ct. 1092, 1096, 89 L.Ed.2d 271] (1986)....
19

Anderson, 483 U.S. at 638, 107 S.Ct. at 3038.3 As this court has explained,

20
appellate
assessment of [a] qualified immunity claim is apportioned into two
analytic components. First, if the right asserted by the plaintiff was "clearly
established" at the time of its alleged violation, we are required to assume that the
right was recognized by the defendant official, see Harlow, 457 U.S. at 818, 102
S.Ct. at 2738; Rodriguez v. Comas, 888 F.2d 899, 901 (1st Cir.1989); second, we
will deny the immunity claim if a reasonable official situated in the same
circumstances should have understood that the challenged conduct violated that
established right, see Anderson, 483 U.S. at 640-41, 107 S.Ct. at 3039; Rodriguez,
888 F.2d at 901.
21

Burns, 907 F.2d at 235-36.

22

The Hegartys correctly contend, of course, that the Fourth and Fourteenth
Amendments to the United States Constitution prohibited a warrantless entry
into the Hegarty cabin to effect Katherine's arrest, except in exigent
circumstances and with probable cause. See Welsh v. Wisconsin, 466 U.S. 740,
749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984); Payton v. New York, 445
U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); Buenrostro v.
Collazo, 973 F.2d 39, 43 (1st Cir.1992). Indeed, the constitutional rights
allegedly violated were clearly established long before this tragic incident
occurred. Accordingly, the defendant officers are deemed to have been on
notice of the relevant constitutional protections constraining their actions.
Burns, 907 F.2d at 235-36. Therefore, qualified immunity affords the defendant
officers no safe haven unless an objectively reasonable officer, similarly
situated, could have believed that the challenged police conduct did not violate
the Hegartys' constitutional rights. Id. at 236.

23

Thus, the qualified immunity inquiry does not depend on whether the
warrantless entry was constitutional, but allows as well for the inevitable reality
that "law enforcement officials will in some cases reasonably but mistakenly
conclude that [their conduct] is [constitutional], and ... that ... those officials-like other officials who act in ways they reasonably believe to be lawful-should not be held personally liable." Anderson, 483 U.S. at 641, 107 S.Ct. at
3039-40 (emphasis added); Burns, 907 F.2d at 237. In other words, qualified
immunity sweeps so broadly that "all but the plainly incompetent or those who
knowingly violate the law" are protected from civil rights suits for money

damages. Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 537, 116 L.Ed.2d
589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092,
1097, 89 L.Ed.2d 271 (1986)); cf. Roy v. City of Lewiston, 42 F.3d 691, 695
(1st Cir.1994) ("[T]he Supreme Court's standard of reasonableness is
comparatively generous to the police where potential danger, emergency
conditions or other exigent circumstances are present.").
24

Lastly, we assess the challenged police conduct with a view to determining its
"objective legal reasonableness," Anderson, 483 U.S. at 639, 107 S.Ct. at 3039
(emphasis added), which entails two pivotal features. First, the qualified
immunity inquiry takes place prior to trial, on motion for summary judgment,
see Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d
411 (1985) (qualified immunity provides a shield against the burdens of
litigation, not merely a defense against liability for money damages), and
requires no factfinding, only a ruling of law strictly for resolution by the court,
see Amsden v. Moran, 904 F.2d 748, 752-53 (1st Cir.1990), cert. denied, 498
U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991); Hall v. Ochs, 817 F.2d 920,
924 (1st Cir.1987). Thus, under the policy-driven "objective legal
reasonableness" analysis governing our inquiry, even expert testimony relating
to appropriate police procedures in the circumstances confronting the officers
may not afford certain insulation against summary judgment in the "qualified
immunity" context.

25

We turn then to consider whether an objectively reasonable police officer could

have believed--in the circumstances prevailing before Katherine Hegarty was
mortally wounded--that "exigent circumstances" and "probable cause" existed
for the forcible, warrantless, nighttime entry into the Hegarty cabin.
3. The Qualified Immunity Analysis

(i) Probable Cause

26
27

The "probable cause" requirement was met if the officers at the scene
collectively possessed, Burns, 907 F.2d at 236 n. 7, "reasonably trustworthy
information [sufficient] to warrant a prudent [person] in believing that
[Katherine Hegarty] had committed or was committing a [criminal] offense."
Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). As
the Supreme Court has explained, "[i]n dealing with probable cause, ... as the
very name implies, we deal with probabilities. These are not technical; they are
the factual and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act." Illinois v. Gates, 462 U.S. 213,
231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United

States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). See also
Burns, 907 F.2d at 236 (quoting Gates ).
28

On appeal, the plaintiff contests the assumption--indulged arguendo by the

district court--that there was probable cause for Katherine Hegarty's arrest. He
argues that no competent officer in these circumstances reasonably could have
believed that Katherine--a "crack shot"--intended to harm the campers,
especially since no bullets struck the trucks and boat behind which the campers
took cover. We do not agree. Rather, based on the information that Katherine
may have been intoxicated, an objectively reasonable officer could have
concluded that her errant aim was not attributable to a lack of intent to
endanger. Consequently, we conclude, based on the "reasonably trustworthy
information" available to the defendant officers at the scene, see supra pp.
1370-71, that an objectively reasonable police officer could have formed the
belief that there was probable cause to arrest Katherine Hegarty for the offense
of reckless endangerment. See, e.g., Me.Rev.Stat.Ann. tit. 17-A, Sec. 211 ("A
person is guilty of reckless conduct if he recklessly creates a substantial risk of
serious bodily injury to another person."); Sec. 15 (authorizing warrantless
arrests for reckless conduct with a firearm).

(ii) Exigent Circumstances

29
30

A warrantless, forcible entry of a private residence is permissible in certain

limited circumstances, including: (1) "hot pursuit" of a fleeing felon; (2)
threatened destruction of evidence inside a residence before a warrant can be
obtained; (3) a risk that the suspect may escape from the residence undetected;
or (4) a threat, posed by a suspect, to the lives or safety of the public, the police
officers, or to herself. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct.
1684, 1690, 109 L.Ed.2d 85 (1990). We have held that a cognizable exigency
must present a "compelling necessity for immediate action that w[ould] not
brook the delay of obtaining a warrant." United States v. Almonte, 952 F.2d 20,
22 (1st Cir.1991), cert. denied, 503 U.S. 1010, 112 S.Ct. 1776, 118 L.Ed.2d
434 (1992) (quoting United States v. Adams, 621 F.2d 41, 44 (1st Cir.1980)).
Conversely, certain mitigating factors may undermine a showing of exigent
circumstances; for example, where the criminal offense was not sufficiently
serious (a traffic violation), Welsh, 466 U.S. at 753 n. 6, 104 S.Ct. at 2099 n. 6,
the opportunity afforded the suspect for peaceable surrender was inadequate, or
the entry occurred in the nighttime. See generally United States v. Adams, 621
F.2d 41, 44 (1st Cir.1980).

31

The defendant officers challenge the district court ruling that no competent
police officer could have formed an objectively reasonable belief that "exigent

circumstances" justified a forcible, warrantless entry for the purpose of

effecting Katherine Hegarty's immediate arrest. They argue that it was
reasonable to believe--based on the reasonably trustworthy information
available to them at the time--that Katherine posed an imminent and
unpredictable threat to their safety, and to herself.
32

Earlier in the day, Katherine had engaged in violent, life-threatening conduct

against peaceable, unarmed campers. She was known to have demonstrated
emotional instability and hostility toward law enforcement personnel in the
past, which had prompted her to attack and threaten State Trooper Wright on
two separate occasions. At the cabin, she pointed a rifle directly at Sergeant
Crawford, exhibited irrational and possibly suicidal behavior (laughing "like a
witch") in response to the officers' repeated requests that she discuss matters
with them. The defendant officers maintain that she could have decided at any
time to fire at them through the "paper thin" cabin walls or as they attempted to
retreat across the moonlit clearing. Consequently, the officers contend, there
was an ongoing exigency which made it reasonable to attempt to disarm
Katherine whenever it appeared least likely that she possessed or could retrieve
a weapon.4

33

Plaintiff acknowledges that the officers did not use excessive force to protect
themselves after they forcibly entered the cabin and were confronted by
Katherine, with rifle raised. Cf. Roy, 42 F.3d at 695-96. Rather, he contends
that their precipitous and ill-conceived strategy--arrived at before the officers
ever left the truck stop--deviated unreasonably from standard police tactics in
crisis situations and inexorably led to Katherine's death. Cf. United States v.
Curzi, 867 F.2d 36, 43 n. 6 (1st Cir.1989) (police may not manipulate events to
create an "exigency" justifying warrantless entry).

34

William McClaran, plaintiff's expert, testified that the defendant officers

deviated in two fundamental respects from standard police practice in a crisis.
First, they failed to define their exact "chain of command" before setting out to
effect Katherine's arrest. Consequently, each officer at the scene was left to
determine his own movements on an ad hoc basis ("free-lancing"), without
adequate coordination among them.5 Second, the officers eschewed accepted
rules of "containment" by needlessly placing themselves in peril against the
"paper thin" outer walls of the cabin. Plaintiff opines that upon approaching the
cabin, the officers harbored a reasonable belief that Katherine was inside, given
the music blaring from within the cabin and the presence of her truck in the
cabin clearing. Consequently, and since the officers knew Katherine was armed
and appeared to be acting irrationally, two officers should have taken concealed
positions at the edge of the woods surrounding the cabin clearing, thereby

cutting off any attempted escape. Thereafter, from a safer distance, other
officers could have begun the effort to coax Katherine to come outside, while
another officer returned to the police cruisers and radioed for assistance from
the Maine State Tactical Team.
35

We must isolate all reasonably reliable information collectively known to the

officers at the time their challenged conduct occurred, without indulging
hindsight, see Hunter, 502 U.S. at 227, 112 S.Ct. at 536, to determine whether
an "objectively reasonable officer," with the identical information, could have
concluded that there were exigent circumstances sufficient to support an
immediate forcible entry of the Hegarty cabin to effect Katherine's warrantless
arrest. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1872, 104
L.Ed.2d 443 (1989). Any genuine dispute as to what the officers knew or did
must be resolved in the plaintiff's favor. See Fonte v. Collins, 898 F.2d 284,
285 (1st Cir.1990). Even then, however, summary judgment for the defendant
officers would be appropriate if any such factual dispute were immaterial as a
matter of law; that is, if it would not alter the required analysis as to the "legal
reasonableness" of their conduct. See, e.g., Prokey v. Watkins, 942 F.2d 67, 73
(1st Cir.1991) (citing cases in which material factual disputes precluded
summary judgment on qualified immunity claim); see also Cameron v. Seitz,
38 F.3d 264, 273 n. 2 (6th Cir.1994) (same).6

36

Following a careful examination of the applicable law and all competent

evidence presented to the district court at summary judgment, we conclude that
the benchmark against which plaintiff would have us evaluate the challenged
police conduct is impermissibly stringent for the qualified immunity context,
since it fails to acknowledge an overarching reality confronting the officers at
the most critical moment of decision; viz., until Sergeant Crawford saw
Katherine Hegarty through the bedroom window of the cabin, there was no
conclusive evidence that their suspect had been located or contained at all.

37

The officers initially devised a "plan" which they characterized as "locate,

identify, contain, negotiate, and arrest." Obviously, "location" and
"identification" would be imperative before any other element in their plan
could proceed. The officers knew that Katherine had fired approximately thirty
rounds toward the campers earlier in the evening. And, in addition to their
collective knowledge of her erratic, unlawful behavior in the recent past, the
officers had learned from the campers that Katherine was last seen driving her
truck. A competent police officer in these circumstances--possessed of this
disturbing information--certainly could harbor an objectively reasonable
concern that Katherine might yet remain mobile, thereby posing a continuing
danger to other persons in the vicinity.

38

Several other campsites in the vicinity of the Hegarty cabin were occupied, and
without knowing the precise motivation for Katherine's unprovoked, armed
response to the peaceable presence of the four campers earlier in the evening,
an objectively reasonable officer prudently could presume that other campers
might be at similar risk. In fact, their use of the police dog while proceeding
along the woods road toward the cabin attests to the officers' alertness to the
possibility that Katherine could be lying in wait in the woods. Deciding not to
take the risk attendant upon the delay necessarily entailed in obtaining a
warrant, the officers accordingly placed top priority on conclusively locating
their suspect at the earliest possible time so as to minimize the threat posed to
the safety of other campers. See Olson, 495 U.S. at 100, 110 S.Ct. at 1690
(exigent circumstances include the need to safeguard against threats to life or
safety of others); Almonte, 952 F.2d at 22.7

39

Quite contrary to the major premise for William McClaran's expert opinion, by
the time they arrived at the Hegarty cabin the officers had received decidedly
mixed signals concerning their suspect's location. The parked truck suggested
that Katherine might be inside the cabin, but the lack of artificial illumination
suggested otherwise. The blaring music did not conclusively disprove either
hypothesis. Nor had Katherine been seen or heard entering or moving about
inside the cabin. Thus, it was in no sense improbable that Katherine, a licensed
guide and experienced hunter, had left her vehicle and departed the cabin site
on foot.

40

Nor was the alternative police strategy posited by Mr. McClaran without its
shortcomings. Of course, had the officers chosen to cordon off the cabin from a
"safe" distance, and begun calling out to Katherine in the hope they might
negotiate her surrender--and had she responded--the "containment" phase could
have proceeded apace. On the other hand, had she simply failed to respond-either because she could not hear their calls above the blaring music, or because
she had fully expected them to investigate the campers' allegations and wanted
to keep them off guard--the officers still would be left to speculate whether she
was in the cabin.

41

Since time was of the essence, and it was imperative that they locate and
identify their suspect so as to rule out the continuing danger she could pose to
others in the vicinity, the officers then would have faced an irreconcilable
quandary. They could undertake a "containment" strategy along the lines
propounded by McClaran, which would necessitate a delay of several hours for
the Maine State Tactical Team to reach the cabin, thereby countenancing the
realistic risk that their suspect might be elsewhere at that very moment
jeopardizing the safety of others.8 Or, having heralded their arrival, the officers

could have attempted to confirm Katherine's presence through visual contact,

by approaching the outer walls of the darkened cabin across the moonlit
clearing, thereby exposing themselves to gunfire from their armed and
unpredictable suspect--by then forewarned and concealed.
42

Law enforcement officers quite often are required to assess just such
probabilities, and to weigh the attendant contingencies. And it is precisely such
spontaneous judgment calls--borne of necessity in rapidly evolving, lifeendangering circumstances--that the qualified immunity doctrine was designed
to insulate from judicial second-guessing in civil actions for money damages,
unless the challenged conduct was clearly incompetent or undertaken in plain
violation of established law. See Hunter, 502 U.S. at 229, 112 S.Ct. at 537;
Anderson, 483 U.S. at 638, 107 S.Ct. at 3038.

43

Thus, we do not determine which of these strategies represented the more

prudent course or posed the least serious risk to the suspect, the officers or
others in the vicinity. See Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.1994)
(noting that "[o]fficers need not avail themselves of the least intrusive means of
responding to an exigent situation; they need only act within that range of
conduct [which is] ... reasonable"; contrary rule "would inevitably induce
tentativeness by officers"). Rather, we consider only whether a competent
police officer in these circumstances reasonably could have opted for an
unannounced approach to the cabin walls forthwith.

44

As we conclude that a competent police officer reasonably could have believed

that exigent circumstances warranted approaching the cabin walls-- forthwith
and unannounced--we turn to the remaining question: whether the defendant
officers--once committed, and assured that Katherine was inside the cabin
where she no longer posed a viable threat to other campers--reasonably could
have believed that she represented an imminent physical threat to their own
safety.9 See Olson, 495 U.S. at 100, 110 S.Ct. at 1690.

45

The expert testimony on which plaintiff relies makes much of the notion that
the entire plan for approaching the outer cabin walls was ill-conceived and
uncoordinated ab initio, whereas the officers plausibly contend that they had
worked together as a team so often in the past that their basic plan and tactics
were implicitly understood. But even accepting William McClaran's
prescription as to an appropriate police procedure for use in these
circumstances, plaintiff does not explain how a differently formulated plan-devoid of the suggested deficiencies in the officers' plan--inevitably would have
averted the exigency ultimately confronting them. See supra notes 5 & 8.
Indeed, none of the consequences McClaran attributed to the alleged absence of

a "chain of command," or to lack of coordination in the officers' plan, clearly

constituted a causative factor in Katherine's death.10 Rather, the causative
exigency derived primarily from three factors over which the officers never had
exclusive control: the need to ascertain Katherine's precise location as soon as
possible, her unpredictable behavior, and the lack of protective cover for their
own movements in locating and containing her.
46

Second, though plaintiff argues that the officers delayed their forcible entry
until they were safest--when it "appeared" to Officer Guay that Katherine was
unarmed and beyond arm's reach from a firearm--surely this argument
exaggerates their on-the-spot sense of personal security by failing to assess the
imminence of a perceived danger in light of the totality of the circumstances.
See United States v. Veillette, 778 F.2d 899, 902 (1st Cir.1985) (exigency is
assessed by viewing "totality" of circumstances), cert. denied, 476 U.S. 1115,
106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).

47

Katherine moved freely about the unilluminated interior of the locked cabin,
which contained deadly firearms whose exact number and location were
unknown to the officers. Cf., e.g., United States v. Smith, 797 F.2d 836, 841-42
(10th Cir.1986) (exigency established for warrantless entry where agents
approached aircraft with probable cause to believe it might harbor armed drug
dealers); United States v. Guarente, 810 F.Supp. 350, 352-53 (D.Me.1993)
(exigency established for warrantless entry where officers remained uncertain
about the intentions of armed suspects who might remain inside structure).
Only minutes before, Katherine had pointed her rifle at Sergeant Crawford. Cf.
O'Brien v. City of Grand Rapids, 23 F.3d 990, 997 (6th Cir.1994) (qualified
immunity claim disallowed where suspect "had taken no action against the
officers" and "did not point the gun at anyone"; noting that threat to police must
be "immediate").11 Prior to their forced entry, the officers realized that the
cabin walls were "paper thin,"12 thus affording insufficient cover should
Katherine decide to fire from inside the cabin--a serious contingency that
competent officers reasonably could take into account given the violent,
irrational and unpredictable behavior recently exhibited by their barricaded
suspect, including her peculiar bouts of laughter, history of emotional instability
and demonstrated antagonism toward law enforcement personnel. In such
circumstances, competent police officers reasonably could conclude that to
announce their intention to place the barricaded suspect under arrest-dispensing with their ruse that they were there only to help her--might well
spark renewed violence.

48

Finally, once their objectively reasonable locate-and-contain strategy had

positioned several officers in unexpectedly vulnerable positions against the thin

cabin walls, cf. Curzi, 867 F.2d at 43, they could neither remain in their
positions indefinitely nor safely terminate the impasse by attempting to retreat
across the moonlit cabin clearing without directly exposing themselves to
potential gunfire. Thus, safe and indefinite containment--either from their
vulnerable positions against the cabin walls or from a "safer" distance--no
longer remained a practicable alternative. Cf. United States v. Wilson, 36 F.3d
205, 210 (1st Cir.1994) (upholding denial of motion to suppress evidence
because police officers should not be required to remain indefinitely outside
apartment located in building which was well-known site of prior drug sales
and police shootings); Guarente, 810 F.Supp. at 352-53 (finding it reasonable
for police to enter building in circumstances where their alternative was to
remain potential targets for any concealed armed suspect who might be inside);
cf. also United States v. Hardy, 52 F.3d 147, 149 (7th Cir.1995) (finding
exigent threat to officer safety where armed suspect, with known history of
violence and drug use, was inside locked motel room and within "easy reach" of
powerful firearm); Russo v. City of Cincinnati, 953 F.2d 1036, 1044-45 (6th
Cir.1992) (finding that no unreasonably excessive force had been used against
an armed and "suicidal" person--barricaded inside apartment--who had made
threatening statements toward police officers while in intermittent close
proximity to them, and showed signs of serious mental instability); Smith, 797
F.2d at 841 (exigency established where officers had probable cause to believe
aircraft, which had landed at isolated airfield after dark, might harbor armed
drug dealers).
49

We therefore conclude that a competent police officer--possessing the same

information the defendant officers had on May 15, 1992--reasonably could
have believed both that there existed probable cause to arrest Katherine Hegarty
and exigent circumstances justifying their immediate warrantless entry.
Consequently, the summary judgment order entered by the district court must
be vacated, and summary judgment must be entered for the defendant officers.

B. Sheriff Havey's Qualified Immunity Claim

50

Although Somerset County Sheriff Spencer Havey did not participate in the
events of May 15, 1992, plaintiff advances two related challenges to the
summary judgment order entered in favor of Havey. First, plaintiff argues that
Havey failed to train his officers adequately or to institute written standard
operating procedures ("SOPs"), even though it was reasonably foreseeable that
these deputy sheriffs likely would encounter so-called "barricaded felon" cases
on a frequent basis in rural, wooded Somerset County. Second, even assuming
that a need for additional training and SOPs had not been foreseeable prior to
the Hegarty incident, Sheriff Havey's subsequent conduct would enable a

factfinder to infer that Havey had condoned the officers' conduct, or been
indifferent to the need for better training long before May 15, 1992. For
example, Sheriff Havey refused to discipline his officers for the fatal shooting
of Katherine Hegarty, as recommended in the Attorney General's final
investigative report. Nor did he institute additional training, as recommended
by a citizen review board convened by Havey in the wake of the tragic event.
1. Applicable Law
51

Under 42 U.S.C. Sec. 1983, supervisory law enforcement officers incur no

respondeat superior liability for the actions of their subordinates. See, e.g., City
of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1202-03, 103 L.Ed.2d
412 (1989). Absent participation in the challenged conduct, a supervisor "can
be held liable ... [only] if (1) the behavior of [his] subordinates results in a
constitutional violation and (2) the [supervisor's] action or inaction was
'affirmative[ly] link[ed] ' to the behavior in the sense that it could be
characterized as 'supervisory encouragement, condonation or acquiescence' or
'gross negligence [of the supervisor] amounting to deliberate indifference.' "
Lipsett v. University of Puerto Rico, 864 F.2d 881, 902-03 (1st Cir.1988)
(emphasis added) (citations omitted); see Rodriques v. Furtado, 950 F.2d 805,
813 (1st Cir.1991) (discussing deliberate indifference to officer training).
Deliberate indifference will be found only if "it would be manifest to any
reasonable official that his conduct was very likely to violate an individual's
constitutional rights." Febus-Rodriguez, 14 F.3d at 92 (quoting Germany v.
Vance, 868 F.2d 9, 18 (1st Cir.1989)). The "affirmative link" requirement
contemplates proof that the supervisor's conduct led inexorably to the
constitutional violation. See id.; see also Fraire v. City of Arlington, 957 F.2d
1268, 1281 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 462, 121 L.Ed.2d 371
(1992).
2. Application of Law to Facts

52

The determination that a subordinate law enforcement officer is entitled to

qualified immunity from suit under section 1983 is not necessarily dispositive
of the supervisor's immunity claim. Nevertheless, it does increase the weight of
the burden plaintiff must bear in demonstrating not only a deficiency in
supervision but also the essential causal connection or "affirmative linkage"
between any such deficiency in supervision and the alleged deprivation of
rights. We conclude that plaintiff has not carried this heavy burden.

53

We find the district court's preliminary analysis of Sheriff Havey's qualified

immunity claim to be well reasoned and persuasive. The evidence demonstrates

that Sheriff Havey, newly elected to office, had no notice that the deputy
sheriffs were experiencing problems in dealing with "barricaded suspect"
confrontations prior to the incident in question. Cf. Febus-Rodriguez, 14 F.3d
at 92. Indeed, their police academy training and instruction time relating to
warrantless entries exceeded the national average. See Canton, 489 U.S. at 389,
109 S.Ct. at 1205. Moreover, rather than simply ignore the Hegarty incident,
Havey suspended all officers involved and convened a panel to investigate and
make recommendations. Although it is entirely understandable that plaintiff
would fault Sheriff Havey for not accepting or adopting the recommendations
made by the advisory panel, such a decision is insufficient, standing alone, to
establish deliberate indifference. See, e.g., Santiago v. Fenton, 891 F.2d 373,
382 (1st Cir.1989) (decision not to discipline or fault subordinates' conduct,
following investigation, is insufficient, standing alone, to demonstrate
supervisor's "deliberate indifference"); see also Fraire, 957 F.2d at 1278-79.
54

Even though the district court ruled that Havey's subsequent conduct did not
amount to deliberate indifference, it expressed serious reservations concerning
some of his conduct, see Bordanaro v. McLeod, 871 F.2d 1151, 1166-67 (1st
Cir.), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989)
(postincident conduct may be relevant to "deliberate indifference" inquiry);
Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir.1985), cert. denied,
480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987) (same), notably Havey's
failure to acknowledge the need to prescribe SOPs or to institute in-house
training for handling "barricaded felon" cases. Nevertheless, the rationale for
our decision that the individual officers at the scene acted within the bounds of
objective reasonableness, see supra Section II.A, plainly undermines most of
the district court's concerns.

55

Most importantly, plaintiff failed to demonstrate the required "affirmative link"

between Havey's conduct and Katherine Hegarty's death. That is, he has not
sustained the burden of establishing that any lack of "barricaded felon" training
on the part of the Somerset County Sheriff's Department officers at the scene
caused Katherine's death. Cf., e.g., Manarite v. City of Springfield, 957 F.2d
953, 958 (1st Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 113, 121 L.Ed.2d 70
(1992). First, even the plaintiff's expert declined to characterize the Hegarty
incident as a typical "barricaded felon" case. And, unlike the typical
"barricaded felon" case, these officers at the outset had no conclusive evidence
but that their suspect remained at large.

56

Moreover, even assuming the best efforts of the most prescient supervisor, it
simply is not possible to anticipate the entire array of atypical circumstances--

upon which sensitive discretionary judgment calls must be made by the officer
in the field--for inclusion in a law enforcement agency's standard operating
procedures. For example, even indulging an impermissible measure of
hindsight, we do not believe that SOPs, however elaborate, would have enabled
the defendant officers at the scene to resolve by safer or more reliable means
whether Katherine was inside the cabin at the time the officers first arrived. So,
too, in the end, Sheriff Havey--after initiating an immediate investigation into
the officers' actions--formed the professional opinion, rightly or wrongly, that
the judgment calls made at the scene were reasonable.
57

Finally, though plaintiff would characterize Sheriff Havey's subsequent conduct

as pure obstinacy, the cloak of qualified immunity nonetheless remains in place
unless "it would be manifest to any reasonable official" in the supervisor's
position that the failure to establish such a policy or to institute in-house
training prior to the Hegarty incident "was very likely to violate an individual's
constitutional rights." Febus-Rodriguez, 14 F.3d at 92. As plaintiff failed even
to approach the threshold for such a showing, we affirm the district court ruling
allowing the qualified immunity claim asserted by defendant Havey.

III
CONCLUSION
58

We cannot know whether the tragic death of Katherine Hegarty would have
been averted but for the judgment calls made by the defendant officers at the
scene, nor is that the inquiry we make in a civil rights action for damages
against the individual officers. We determine only whether the discretionary
decisions made by the defendants were within the broad range of reasonable
conduct to be expected from competent police officers and their supervisors in
like circumstances. As the actions of the defendant officers and their supervisor
plainly met the latter standard, the district court order denying summary
judgment to the defendant officers must be reversed and the judgment in favor
of defendant Havey must be affirmed.

59

The judgment for defendant Havey is affirmed and the case is remanded to the
district court with instructions to vacate the judgment entered for plaintiff and
enter summary judgment for the defendant officers, and for such further
proceedings as may be appropriate and consistent with this opinion. The parties
shall bear their own costs on appeal.

Of the District of New Hampshire, sitting by designation

The relevant facts are related in the light most favorable to the plaintiff, the
party resisting summary judgment. Velez-Gomez v. SMA Life Assurance Co.,
8 F.3d 873, 874-75 (1st Cir.1993)

No appeal was taken from the district court judgment dismissing the wrongful
death, see Me.Rev.Stat.Ann. tit. 18-A, Sec. 2-804 (1994), and common-law
trespass claims

The same "qualified immunity" analysis applies to the MCRA claims. See
Jenness v. Nickerson, 637 A.2d 1152, 1159 (Me.1994)

Reserve Officer Giroux and Sergeant Crawford, who played no direct role in
the forcible entry and were responding to orders, claim entitlement to qualified
immunity by reason of their "lesser" participation. Given our holding, we need
not address their claim

McClaran pointed to several instances of "freelancing" at the Hegarty cabin.

First, although Officer Giroux alone had been charged with initiating
communications with Katherine, Sergeant Hines unilaterally deviated from the
arrangement by banging on the cabin door. Second, the failure to coordinate
their movements before arriving at the scene created the risk that the officers
might be caught in their own cross-fire. Third, the officers gave Katherine
confusingly different explanations for their presence at the cabin. Finally, the
officers agreed that should a forcible entry become necessary, Sergeant Hines
would enter first, whereas in fact a subordinate officer (Guay) ended up giving
the irrepealable signal to launch the forcible entry

We need to note the obvious as well. Even though the isolation of the Hegarty
cabin and the death of Katherine Hegarty dictate that virtually all relevant
evidence derives exclusively from the officers at the scene, see Scott v.
Henrich, 39 F.3d 912, 915 (9th Cir.1994) ("the officer defendant is often the
only surviving eyewitness" in qualified immunity cases), summary judgment
nonetheless must be granted absent a genuine dispute as to a material issue. See
Jirau-Bernal, 37 F.3d at 3

The exigency created by the realistic danger the unlocated suspect posed to
other campers in the vicinity likewise substantially mitigated an aggravating
factor noted by the district court: the fact that the warrantless entry took place
at night

Once the tactical team had arrived, moreover, it would still have been necessary
to confirm--by some means--Katherine's presence in the cabin

Although we need not resolve the matter definitively, we have serious

reservations whether the officers' actions were justified by concern that

Katherine might take her own life. True, the objective evidence indicated that
she had exhibited behavior both violent and unpredictable, yet the evidence
revealed that her conduct was directed at third parties, never herself. Nor had
she said anything to the officers that might indicate suicidal intent
10

Plaintiff misfocuses the "qualified immunity" analysis by inquiring whether all

aspects of the officers' conduct were executed in the manner to be expected of
an "objectively reasonable" officer, rather than whether the particular decisions
which led to Katherine's death reasonably could have been made by such an
officer. Thus, for example, even assuming the plan increased the risk that an
officer might be caught in another officer's cross-fire, the subsequent decision
to enter and disarm Katherine was not implicated thereby. Furthermore, the
officers' "differing" responses to Katherine's inquiries were not so much
confusingly inconsistent, as consistently misleading. But their responses were
also deliberately designed to reduce the risk that she might react violently, as by
their consistent expressions of concern for Katherine's safety and their
scrupulous avoidance of any mention of her impending arrest

11

Although plaintiff argues that this incident cannot serve to establish an exigent
circumstance--because Katherine may have pointed the gun at Crawford before
she recognized that he was a police officer--omniscience is not the presumed
mindset with which an objectively reasonable police officer approaches lifeendangering decisions. The correct focus must be on the significance an
objectively reasonable police officer might attach to the threatening action, in
circumstances where he--like Sergeant Crawford--could not know, with
assurance, the suspect's exact state of mind or intent. Cf., e.g., Gibson v.
Officer, P.A., 44 F.3d 274, 277-78 (5th Cir.1995) (proper focus is not upon
factual dispute as to whether suspect was intoxicated, but whether objective
facts might lead a reasonable officer so to conclude); Slattery v. Rizzo, 939
F.2d 213, 216 (4th Cir.1991) (police officer's belief that suspect was reaching
for gun was "reasonable" even though object turned out to be a bottle)

12

Their vulnerability to gunfire from within the cabin was later confirmed.
McClaran himself noted that several police bullets--fired immediately after the
forcible entry--passed through the cabin walls