Nos. 21-1086, 21-1087

ESTATE OF USAAMAH ABDULLAH RAHIM, by Rahimah Rahim, in her capacity as Personal Representative of the Estate of Usaamah Abdullah Rahim,

Plaintiff, Appellee,

v.

JOHN DOE 1; JOHN DOE 2,

Defendants, Appellants,

UNITED STATES,

Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Joseph B. Simons, with whom Sara Attarchi and Simons Law Office were on brief, for appellee. Daniel Aguilar, Attorney, Appellate Staff, Civil Division, with whom Brian M. Boynton, Acting Assistant Attorney General, Joshua S. Levy, First Assistant United States Attorney, and Mark B. Stern, Attorney, Appellate Staff, Civil Division, were on brief, for appellant John Doe 1. Nicole M. O'Connor, Senior Assistant Corporation Counsel, for appellant John Doe 2. October 20, 2022 LYNCH, Circuit Judge. FBI Special Agent John Doe 1 and Boston Police Department Detective John Doe 2, members of the FBI's Joint Terrorism Task Force (the "Task Force"), appeal from a district court's denial of their pre-discovery motions for summary judgment on qualified immunity grounds. The officers shot and killed a terrorist suspect on June 2, 2015, in Boston's Roslindale neighborhood. Plaintiff Rahimah Rahim, the representative of the decedent's estate (the "Estate"), sued, alleging that the officers' use of lethal force violated the Fourth Amendment and asserting various claims under state law.

The district court found that the officers would be entitled to qualified immunity if it considered only the moment of the shooting. But it denied summary judgment and authorized discovery on the theory that the proper focus was not just on the encounter itself but on the officers' plans and actions in the lead-up to the encounter. We reverse.

I.

A.

The following facts are not in dispute. In the spring of 2015, decedent Usaamah Rahim was being investigated by the Task Force for connections to the Islamic State of Iraq and the Levant ("ISIL"), a foreign terrorist group. Officers Doe 1 and Doe 2 were involved in this investigation.

- 3 - As part of the investigation, the Task Force conducted electronic and physical surveillance on Rahim and on David Wright and Nicholas Rovinski, believed to be Rahim's coconspirators. Cf. United States v. Wright, 937 F.3d 8, 13, 32-37 (1st Cir. 2019) (affirming Wright's conviction for conspiracy to commit acts of terrorism transcending national boundaries in violation of 18 U.S.C. § 2332b(a)(2) and (c)). The Task Force monitored calls among the three men.

On June 2, 2015, at 5:18 a.m., Task Force officers (likely not the defendants) intercepted a call between Rahim and Wright, both located in the Boston area. Rahim told Wright that he (Rahim) "was losing [his] intention" and thus "must act sooner than anticipated." He could no longer wait for the "things" that were "gonna . . . go down" in New York on the Fourth of July. Instead of traveling to New York, his plans were "local" and immediate: he would go on "vacation" "right here in Massachusetts." He planned to "go[] after . . . those boys in blue" because they were the "easiest target." Rahim had already given his "bi'ah [allegiance]," and thus this would be more than simply a "vigilante attack." The attack would be "random" and "might even happen today." "[I]f not today, then tomorrow . . . ." Rahim expresse