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14 MAIORANA UV. MAC DONALD them are that (1) Long knew Maiorana could have been ‘arrested, unarmed, earlier on the 15th, (2) after shooting Long, Scire holstered his gun and went to Long’s aid, and ‘Guilmette and MacDonald observed this before ‘shooting, and (3) MacDonald’s fatal shot hit Maiorana one and one- half inches under the left armpit without striking his arm. As the defendants correctly point out, the critical por- tions of the counteraffidavits do not comply with Rule 56(e).2° The defects are numerous. To begin with, the He did not bump into MacDonald (who”s testimony was that he was a step behind Scire cn the way to the car). He did not even see MacDonald during this period. MacDonald, however, must have seen Scire and his actions. It. was plain to him that Scire had shot into the car, then showed no further interest in shooting again, or even holding his pistol pointed into the car but had holstered it and ran or Was running around the car. It was then MacDonald shot my son. The autopsy (testified to at the inquest in my presence) showed that my son was hit in the left armpit without his. arm being hit, showing that his arms were raised high in - ia and that it was MacDonalds third: shot that Killed im. There was clearly no reason for MacDonald to shoot. The shot that killed my son, entered one and one-half inches below the left armpit, one half inch below the seams on his clothing; as was. testified to at the inquest. MacDonald does not mention that after Scire. shot, from a ‘serunched down’ position (as he testified) that he then stood up hosltered his gun and ran around the other side of the ear to- assist Long, at which time Trooper Guilmette shot Maiorana in the thigh from the driver’s side, all this activity before MacDonald shot, and clearly without reasonable justi- fication or probable cause (original punctuation). ° The plaintiff sugeests that the defendants waived this objection by failing to file timely motions to strike. Nevertheless, at least “one defendant (MacDonald) objected in writing to the counter- affidavits. Furthermore, the district court itself noted the defects and disregarded the counteraftidavits. In these circumstances, we ‘see no reason to ignore the plaintifi’s noncompliance with Rule d6(e). Compare Lacey v. Lumber Mutual Insurance Co. of Boston, dd4 F.2d 1204, 1205 (Ist Cir. 1977); Nobdlett v. Gexcral Electric Credit Corp., 400 F.2d 442, 445 (10th Cir. 1968), cert. denied, 393 U.S. 935 (no objection "raised below to affidavits considered by the district court). - l4a - free eer + teen