A federal judge ruled today it's too early for her to consider whether to dismiss a lawsuit against and FBI agent and a Boston Police detective by the mother of the man they shot in front of the Roslindale CVS in 2015 when, they say, he came at them with a large knife.
Instead, the FBI agent, identified in court documents only as John Doe 1, and the BPD detective, referred to as John Doe 2, will have to submit to discovery - pre-trial questioning - by Rahimah Rahim's lawyers, US District Court Judge Indira Talwani ruled today.
Only then, and after both sides make their arguments to her, she said, will she consider the two officers' request to dismiss the case because they say they have "qualified immunity" from a lawsuit, because they were carrying out their legitimate jobs as law-enforcement officers at the time.
The two based their request for dismissal in large part on a report by Suffolk County DA Dan Conley that exonerated them.
According to that report, law-enforcement officers, who were following Usaamah Rahim's activities as he allegedly plotted to kill professional Muslim hater Pamela Geller in New York, had listened to his phone call to his nephew the morning of June 2 in which he said he couldn't wait another week to go to New York and would instead start killing cops in Boston. When he walked from his Blue Ledge Drive apartment to a nearby bus stop on Washington Street, officers were ordered to keep him off a bus. Conley wrote that when the two law-enforcement officers approached him, he drew a large knife, refused repeated orders to drop it and waved it in a circular motion. When he approached them, the two shot him, hitting him three times and killing him.
But Talwani rejected Conley's report, at least for the purposes of determining qualified immunity, essentially because it was hearsay and because Rahimah Rahim's lawyers did not get the chance to talk to any of its sources. Although Conley quotes law-enforcement officers extensively, he was not, himself a witness to Usaamah Rahim's death or part of the investigation that preceded it, Talwani wrote.
She continued that without Conley's report, she did not have enough evidence to determine if Rahim's mother has enough of a case that the officers went too far in depriving her son of his Constitutional rights when they killed him to warrant sending the case to a jury, or if the agent and the detective provided enough proof that they were shielded by qualified immunity from a suit.
In sum, where Plaintiff has not had the opportunity to cross-examine the witnesses on whose testimony Defendants rely, and where no discovery that might provide facts bearing on the reasonableness of Defendants' conduct in the totality of the circumstances has been permitted, the court cannot, at this time, find that Defendants “ha[ve] met [their] burden of coming forward with proof of the absence of any genuine issues of material fact," Celotex Corp, 477 U.S. at 322, as to whether Defendants violated Rahim's constitutional right to be free from an unreasonable seizure.
In a case like this one, where the court has found the facts on summary judgment insufficient to determine exactly what the particular conduct was, let alone whether it violated Rahim’s constitutional rights, the court cannot fairly rule on the immunity defense.