Punsky v. City of Portland

United States Court of Appeals
For the First Circuit

No. 21-2007

STEVEN PUNSKY,

Plaintiff, Appellant,

v.

CITY OF PORTLAND; PTL KIM ANN DONNEL; PTL DARREL GIBSON; SGT
JACOB TITCOMB; CHIEF VERN MALLOCH; SGT CHRIS DYER; PTL JONATHAN
JAMES LACKEE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Lynch, Thompson, and Gelpí,
Circuit Judges.

Jeffrey Bennett, with whom Legal-Ease, LLC, P.A. was on brief,
for appellant.
John J. Wall, with whom Monaghan Leahy, LLP was on brief, for
appellees.

November 29, 2022
 GELPÍ, Circuit Judge. Steven Punsky ("Appellant" or

"Punsky") brought various constitutional claims under 42 U.S.C.

§ 1983 in the United States District Court for the District of

Maine, alleging violations of the Fourth and Fourteenth Amendments

of the U.S. Constitution, as well as state law tort claims under

the Maine Civil Rights Act ("MCRA"), Me. Stat. tit. 5, § 4682,

against the City of Portland and six city police officers: Kimberly

Donnell, Darrel Gibson, Jacob Titcomb, Vern Malloch, Chris Dyer,

and Jonathan Lackee (collectively, "Appellees" or "officers").

Punsky alleged that the officers violated his constitutional

rights when they left him standing in socks in freezing

temperatures for approximately twenty-six minutes while they

investigated a domestic violence incident in which he was involved.

The district court entered summary judgment in favor of Appellees

on the basis of qualified immunity, finding that their actions

were "objectively, legally reasonable" in the unique circumstances

present. As to the state law tort claims, the district court held

likewise that Appellees were immune. This appeal followed.

I. Background

A. Domestic Violence Incident at Appellant's Residence

On December 31, 2017, the Portland Police Department

("PPD") received a call alerting of a domestic violence incident

involving Appellant. When dispatch notified Appellees of the

event, it cautioned that the occupants of the house had been

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drinking, they were wrestling on the floor, and the address was

"flagged" for firearms.1 Upon arrival, the PPD officers observed

two males, Appellant and his son, brawling on the kitchen floor.

Appellant had a scar on his face and was bleeding. Officer Lackee

ordered him to get off his son immediately and to lie down.

However, Appellant was noncompliant, verbally aggressive, and

threatening to the officers. Specifically, he shouted at Officer

Lackee, "I'm not laying on the floor in my own house."

Furthermore, he warned Officer Lackee that if he dared tase him,

it would be the "worst mistake of his life" as he would "com[e]

after" him. After some back and forth talk with Appellant,

Lieutenant Kevin Cashman (who had just arrived at the scene and is

not a party to the suit) persuaded him to step outside of the house

to talk.2 It was a cold night -- around zero degrees Fahrenheit

at 9:00 PM and there was snow on the ground. Appellant at the

time was wearing socks, a long-sleeved shirt, and shorts.

Consequently, within a minute of stepping outside, Officer Lackee

and Lieutenant Cashman offered him shoes, which he refused to

accept. In the meantime, inside the house, Officers Gibson and

A "flagged" residence indicates that on a prior occasion an
1

officer was dispatched to the residence and learned that at least
one occupant kept a firearm thereat.
Appellant contends that an officer pointed a taser at him
2

outside of his home, although he was unable to identify said
officer. There is no record evidence that a taser was ever used.

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Donnell interviewed Appellant's wife and son. Appellant's wife

validated that there were firearms inside the house and that she

hid them from Appellant because she felt worried about him having

access to them. She also told the officers that Appellant had

been drinking. Their son added that he fought his dad to defend

his mother after Appellant "had gotten into her face and poked

her." After approximately nine minutes had elapsed since Appellant

was taken outside, a Portland Fire Department paramedic arrived at

the scene and evaluated him for any possible injuries. Appellant

stated that he was fine and felt no pain "whatsoever." Moreover,

the paramedic also offered Appellant shoes, which he said he did

not want and that he did not care about the cold. The paramedic

additionally offered to take him to the ambulance, but he declined,

stating again that he was fine. The paramedic asked Punsky

questions to elicit whether he was oriented in space and time. He

determined that Punsky was competent, aware of his surroundings,

and had decision-making capability.

Following his medical assessment, Appellant started

walking towards his house when Appellees told him to back up since

by then they had determined that he was the primary aggressor in

the fight with his son. The officers, proceeded to arrest him,

and once again he began to threaten the officers, telling them

that tasing him would "be the worst fucking mistake of [their]

li[ves]" and that they would lose their jobs. Thereafter, the

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officers decided that they needed to place Appellant in an arrest

wagon rather than a cruiser for he was being too aggressive, and

the officers feared a physical altercation would occur.3 As the

officers awaited the arrival of the arrest wagon, Appellant

remained confrontational and verbally combative, swearing at the

officers. In the interim, he briefly mentioned an alleged mental

health disorder to the officers.4 Concerned about Appellant's

incessant refusal to put on shoes, Appellees placed a pair of

sneakers next to him, but he declined to put them on. At no point

did he complain about the shoes being too small. He later

protested about "hav[ing] stocking feet," to which the officers

responded, "You don't have to have stocking feet. We've asked you

if you wanted sneakers five times now."

Appellees' version of what transpired is supported by

body camera audio and video, in which they (we infer from the

recordings that it was either Officer Gibson and/or Officer

Donnell) offered Appellant footwear at least eight times

throughout the interaction. Each time, Appellant dismissed the

offer or ignored it. Appellant told them that he "d[id not] need

3 According to the record, Punsky stands at 6'3" and weighed
approximately 360 pounds at the time of the incident.
4 Punsky mentioned to an officer (likely Officer Gibson as
the audio recording came from his body camera) his alleged mental
health condition, to which the officer responded, "I'm not
medically trained so I can't really help you . . . ."

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[their] goddamn shoes," "d[id] not need any help," and "d[id] not

want [the] shoes."

The officers did not consider bringing Appellant back

into the house because his aggressive behavior posed a safety

concern not only for the officers but for Appellant's wife and son

who were fearful of his violent behavior. Moreover, the arrest

wagon arrived at the scene quickly, rendering unnecessary any

attempt to bring Appellant into the house and conduct a house

sweep. Appellant was then taken to Maine Medical Center for

further evaluation. Upon discharge, Appellees took him to the

Cumberland County Jail and he was charged with domestic assault.

Despite making no complaints about the cold or pain in either foot,

Appellant sustained frostbite and injuries to both feet.5

B. Procedural History

Punsky initially filed the instant action against

Appellees in Maine state court. Appellees timely removed the same

to the United States District Court for the District of Maine.

Shortly after, Appellant filed his second amended complaint, in

which he pled seven counts which included § 1983 claims of

excessive force and supervisory liability in violation of the

Fourth and Fourteenth Amendments, as well as a violation of the

5 There is no evidence on the record that describes the extent
of said injuries.

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MCRA (Me. Stat. tit. 5, § 4682).6 Subsequently, Appellees moved

for summary judgment, which the district court granted as to all

claims. In its ratio decidendi, the district court explained that

Appellees were entitled to qualified immunity because the "actions

taken by the police in the unique circumstances of this case were

objectively, legally reasonable" and "a reasonable officer would

not have understood that his or her conduct violated [Appellant's]

constitutional rights[.]" Punsky timely appealed, solely

6 Punsky brought the following claims before the district
court: 1) Excessive Force; 2) Assault; 3) Battery; 4) Intentional
Infliction of Emotional Distress; 5) Negligent Infliction of
Emotional Distress; 6) MCRA (Me. Stat. tit. 5, § 4682); and 7) 42
U.S.C. § 1983 violations. As to the excessive force in violation
of the Fourth and Fourteenth Amendments claim, Punsky argued that
Appellees "unreasonably" and "improperly" restrained him and
caused "serious bodily injury" after leaving him standing barefoot
in "below freezing temperatures." Similarly, in the state civil
rights count, Punsky contended that the City of Portland adopted
a custom of mistreating individuals under custody, leading to an
unconstitutional custom or policy. Regarding the assault count,
Punsky alleged that Officers Donnell, Dyer, Gibson, Titcomb, and
Lackee "recklessly and intentionally placed [him] in reasonable
apprehension of injury by surrounding his person, insulting him,
threatening him with a taser[,] and forcing him to stand barefoot."
Additionally, Punsky pled a battery claim for "offensive" and
"harmful" contact when he got handcuffed. The complaint also
included claims for "severe emotional distress" due to Appellees'
conduct. Lastly, the complaint brought a § 1983 supervisory
violation count against Chief Vern Malloch for his failure to act
and promulgate appropriate policies within the police department.
The district court twice denied Punsky leave to further amend
his second amended complaint specifically to add a claim under the
"special relationship doctrine."

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challenging the grant of summary judgment as to the officers'

actions under § 1983 and the state law.7

II. Standard of Review

We review a district court's entry of summary judgment

on qualified immunity grounds de novo. Est. of Rahim v. Doe, 51

F.4th 402, 410 (1st Cir. 2022). We will affirm "only when the

record, read in the light most favorable to the nonmovant, presents

no genuine issues as to any material fact" and the moving party is

entitled "to judgment as a matter of law." Morse v. Cloutier, 869

F.3d 16, 22 (1st Cir. 2017); see also Fed. R. Civ. P. 56(a).

III. Discussion

A. Qualified Immunity

Public officials are immune under the doctrine of

qualified immunity if sued in their individual capacities unless

"(1) they violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was 'clearly established

at the time.'" Irish v. Fowler, 979 F.3d 65, 76 (1st Cir. 2020)

(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 589

(2018)). When considering the first prong, we must decide whether

the facts alleged by Appellant "make out a violation of a

7Punsky brought excessive force and unreasonable seizure
claims but has not appealed the district court's grant of summary
judgment to Appellees on those claims. The same are thus, not
properly before us. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).

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constitutional right." Rocket Learning, Inc. v. Rivera-Sánchez,

715 F.3d 1, 8 (1st Cir. 2013) (quoting Maldonado v. Fontanes, 568

F.3d 263, 269 (1st Cir. 2009)). Under the second prong, we

consider "two related aspects." Id. at 9. The first relates to

the "clarity of the law at the time of the alleged violation" while

the second "considers the specific facts of the case at bar." Id.

In regards to the first aspect of the second prong, a "clearly

established" right is one that is "sufficiently clear" such that

"every reasonable official would have understood that what he is

doing violates that right." Stamps v. Town of Framingham, 813

F.3d 27, 34 (1st Cir. 2016) (quoting Mullenix v. Luna, 577 U.S. 7,

11 (2015)). Under the second aspect of the second prong, "[t]he

relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable

[official] that his conduct was unlawful in the situation he

confronted." Rocket Learning, 715 F.3d at 9 (quoting Maldonado,

568 F.3d at 269) (alterations in original). The plaintiff must

satisfy both aspects of the second prong to demonstrate that the

law was clearly established. Id. at 8-9.

Because we can resolve the qualified immunity challenge

considering the prongs in any order, Glik v. Cunniffe, 655 F.3d

78, 81 (1st Cir. 2011), we start (and finish) by analyzing the

second aspect of the second prong: whether it would be clear to a

reasonable officer that his or her conduct violated Appellant's

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constitutional rights. Penate v. Hanchett, 944 F.3d 358, 366 (1st

Cir. 2019).

We find that under the particular circumstances that

Appellees found themselves in, a reasonable officer in their

positions could have not concluded that keeping Appellant standing

with socks in cold temperatures was unlawful, especially after

offering him footwear multiple times since the outset. Let's

recall what transpired that turbulent night. PPD officers

responded to a call that alerted of a domestic violence incident

at Punsky's residence. The officers were informed beforehand that

someone in the house possessed firearms. Upon arriving to the

scene, Punsky and his son were fighting on the floor. After a

standoff in the house in which Punsky threatened and disobeyed the

officers' commands, Appellees were able to remove him from the

house. His wife and son felt threatened by him and feared for

their well-being. Appellant's wife further confirmed to Officers

Donell and Gibson that there were firearms inside the home.

Appellant argues that the district court erred in

granting summary judgment because doing so required the court to

resolve several factual disputes in the officers' favor. We

disagree. Nearly immediately after stepping outside, Appellees

offered Punsky shoes, which he declined repeatedly. Instead, he

kept acting in a violent manner, often threating the officers by

stating, for example, "It's war and that's all I'm going to say."

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Appellees took steps to ensure that Punsky was protected from the

elements -- on at least eight occasions they offered shoes, which

Appellant declined, and even brought a pair of sneakers to Punsky,

which he rejected. When the paramedic arrived, Appellant was

evaluated and asked if he was in pain, to which he indicated

otherwise.8 Furthermore, Punsky did not show any signs of

emotional distress or disorientation. He was later taken to Maine

Medical Center for further assessment.

Qualified immunity exists to shield all defendants

except those who are "plainly incompetent" or "who knowingly

violate the law." Eves v. LePage, 927 F.3d 575, 583 (1st Cir.

2019) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). Here, the

officers acted in an objectively reasonable manner responding to

a "dangerous, rapidly evolving situation[]" in which Appellant

engaged in loathsome behavior against his wife and son. Est. of

Rahim, 51 F.4th at 410 ("[The reasonableness] requirement provides

'breathing room' to officers -- who are often called on to respond

to dangerous, rapidly evolving situations[.]") We thus conclude

that any reasonable officer would have objectively believed that

his or her actions did not violate Appellant's constitutional

rights. Appellees are thus entitled to qualified immunity.

8 Appellant complained about some neck and back pain while
the arrest was unfolding, but, as he stated, it was unrelated to
the events that unfolded that night.

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 B. Maine Tort Claims

Additionally, Appellant brought tort claims against

Appellees. Appellees argued in their motion for summary judgment

that they were "absolutely immune" because they had engaged in

discretionary acts protected by state law. Appellant failed to

contest said assertion and thus the district court concluded that

the claim has been waived and entered summary judgment in

Appellees' favor. We agree. On appeal, Appellant posits that the

district court erred in granting tort immunity to Appellees because

holding him outside for twenty-six minutes in freezing

temperatures exceeded the officers' discretionary functions.

However, he did not address the waiver issue before us and,

although he attempts for the first time to respond to Appellees'

argument on the merits, "[a]ppellants cannot raise an argument on

appeal that was not 'squarely and timely raised in the trial

court.'" Carrozza v. CVS Pharmacy, Inc., 992 F.3d 44, 59 (1st

Cir. 2021) (alteration in original) (quoting Thomas v. Rhode

Island, 542 F.3d 944, 949 (1st Cir. 2008)). That ends the matter.

IV. Conclusion

For all the above, we affirm the district court's grant

of summary judgment.

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