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Dulce Delgado, As Administrator of the Estate of Jason C.Goncalves v. Pawtucket Police Department; City of Pawtucket

February 9, 2012

DULCE DELGADO, AS ADMINISTRATOR OF THE ESTATE OF JASON C.GONCALVES; ROSA BERROA, AS MOTHER AND NEXT FRIEND OF J.X.G. AND J.B., PLAINTIFFS, APPELLANTS,
v.
PAWTUCKET POLICE DEPARTMENT; CITY OF PAWTUCKET, BY AND THROUGH ITS FINANCE DIRECTOR RONALD WUNSCHEL; RICHARD LAFOREST, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY; CHRISTOPHER R. LOMBARDI, IN HIS INDIVIDUAL CAPACITY AND OFFICIAL CAPACITY; GEORGE L. KELLEY, IN HIS OFFICIAL CAPACITY, DEFENDANTS, APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary M. Lisi, U.S. District Judge]

The opinion of the court was delivered by: Howard, Circuit Judge.

Before

Boudin, Howard and Thompson, Circuit Judges.

This is a state law tort action over which the district court retained supplemental jurisdiction after dismissing the plaintiffs' federal claims. The matter went to trial, but at the close of the plaintiffs' case in chief, the district court granted a defense motion for judgment as a matter of law. See Fed. R. Civ. P. 50(a)(1). The plaintiffs appeal, protesting the court's exercise of supplemental jurisdiction, the preclusion of certain testimony, and the granting of the Rule 50 motion. Discerning no error, we affirm.

I. BACKGROUND

Plaintiffs-appellants are the administrator of the estate and the surviving children of Jason C. Goncalves, who was killed in an automobile accident that resulted when Josimar Pereira, the driver of a vehicle in which Goncalves was a passenger, attempted to flee Pawtucket, Rhode Island police officers. Asserting federal constitutional and state tort claims arising out of this incident, the plaintiffs filed suit in Rhode Island state court against the officers, the City of Pawtucket, the Pawtucket Police Department ("PPD"), and the city's police chief in his official capacity. The defendants removed to federal court pursuant to 28 U.S.C. § 1331. Subsequently, the district court granted the defendants' motion for summary judgment in part, dismissing the plaintiffs' constitutional claims. The court denied the plaintiffs' motion to remand the remaining state law tort claims against the individual officers, and the matter went to trial.

During their case in chief, the plaintiffs sought to establish that the officers were reckless (1) in their decision to initiate and continue their pursuit of Pereira and (2) in failing to comply with PPD policy concerning high-speed pursuits.*fn1

As to the first claim, Officers Christopher Lombardi and Richard LaForest testified that on the Friday afternoon of August 12, 2005, they were patrolling a section of Pawtucket in a marked police cruiser. Lombardi was driving. During their patrol, the officers received a radio dispatch advising them to be on the lookout for a suspect in two recent armed robberies in nearby Providence. The broadcast provided a physical description of the suspect and his vehicle, a teal, four-door sedan with a temporary license plate in the rear window.

When shortly thereafter the officers caught sight of an automobile matching this description, they sought to get a look at the vehicle's driver. As Lombardi conducted a three-point turn to be able to do so, however, the car sped away. It accelerated to the end of the street, turned onto a crossroad without stopping at a stop sign, and proceeded to pass other vehicles by straddling the yellow lines separating the oncoming traffic lane.

The officers testified that, with their suspicion seemingly confirmed by this behavior, they activated the cruiser's lights and siren and attempted to catch up to the vehicle. The suspect sped through the rush hour traffic of downtown Pawtucket at varying speeds of up to sixty to seventy miles per hour, disobeying traffic signals in the process. The officers testified that although they, too, exceeded the posted speed limit of twenty-five miles per hour, sometimes by at least fifteen miles per hour, they stopped or slowed down at every intersection. As a result, they testified, they were unable to get within 400 feet of the vehicle and even lost sight of it for thirty seconds of the pursuit.

After approximately two minutes had elapsed and 1.4 miles had been covered, and with the officers trailing 800 to 1,000 feet behind, the driver of the teal vehicle ran a red light at high speed and collided with another car in the intersection. The occupants of the teal vehicle were thrown from the vehicle upon impact. It was not until Lombardi and LaForest reached the scene of the accident and saw the vehicle's occupants for the first time that they realized that neither the driver, Josimar Pereira, nor the passenger, Jason C. Goncalves, matched the physical description of the robbery suspect given in the radio dispatch.

The plaintiffs hoped to cast doubt upon this version of events with the testimony of Pereira, who, they claimed, would testify that the officers were within two car lengths of his vehicle for the entirety of the chase. The plaintiffs sought to admit Pereira's testimony in deposition form, arguing that because he was imprisoned at the time of trial, Federal Rule of Civil Procedure 32(a)(4)(C) permitted admission of his deposition in lieu of live testimony.*fn2 When the district court rejected the plaintiffs' contention that Pereira was "unavailable" within the meaning of the rule notwithstanding that he could be made to appear for live testimony, the plaintiffs moved for a continuance to secure his presence. Noting that the issue had been previously discussed during the course of pre-trial proceedings, the district court denied this request. As a result, the officers' account of the chase itself remained uncontroverted.

Testimony relating to whether departmental pursuit policies were followed was, however, somewhat less one-sided. The Pawtucket Police Manual of Procedures describes the circumstances under which officers may engage in a high speed pursuit -- defined as a pursuit in excess of fifteen miles per hour over the posted speed limit -- and imposes procedures to be followed in the event that such a pursuit is undertaken. The plaintiffs probed whether the officers complied with two of those requirements, in particular.

The first is the requirement that responding officers and their shift supervisors assess the value of apprehending the fleeing operator in relation to the potential dangers of doing so, to ensure that a pursuit is justified in its inception and continuation.*fn3 The policy lists several factors to consider when conducting that assessment, including the amount of vehicular and pedestrian traffic, location, weather conditions, road surface conditions, time of day, the officers' knowledge of the road and surrounding area, the performance capabilities of the pursuit vehicle and the vehicle being pursued, and any other potentially hazardous conditions known to the officer. When questioned by the plaintiffs about whether he had taken these factors into account in deciding to initiate and continue the pursuit, LaForest admitted that he had not. Lombardi, who was driving the cruiser, stated that he was aware of the factors. He, however, was not asked whether he had considered them.

The second relevant policy requirement, aimed at supervisor oversight, calls for officers to notify the dispatcher as soon as is practicable that a pursuit has commenced, and to provide ongoing updates about location, speed, and attendant circumstances as the pursuit unfolds. The officers testified that LaForest notified dispatch of the pursuit as soon as the cruiser lights and siren were activated and provided updates every ten to fifteen seconds thereafter. This account was called into question, however, by the testimony of Lieutenant Daniel Mullen, the supervising officer at the time of the event (who monitored the radio transmissions from his cruiser), and Robert Langlois, Jr., the police dispatcher. Both Mullen and Langlois recalled receiving only two radio transmissions: the initial call and notification of the accident only seconds later. Mullen indicated that the time that elapsed between the transmissions was of such short duration that he had no opportunity to assume control of the pursuit. Langlois noted that there was a second dispatcher, but that he himself responded by radio only twice.

Without more, the plaintiffs rested. As they did so, they voluntarily dismissed their negligence claim*fn4 and the defendants moved for judgment as a matter of law on the sole remaining claim of recklessness. The defendants asserted that the evidence did not support a finding that the officers' conduct in initiating and carrying out the chase evinced a reckless disregard for the safety of others, while the plaintiffs focused their response on the theory that the evidence established a violation of the Pawtucket pursuit policy, which they claimed constituted evidence of recklessness sufficient to submit the case to a jury. The defendants contested not only these assertions but also the underlying assumption that the pursuit policy applied at all.

The district court granted the Rule 50(a) motion. Without definitively determining whether the officers had been engaged in a "pursuit" such that the departmental pursuit policy applied, the court concluded that no reasonable jury could find that the officers had acted with reckless disregard for the safety ...


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