Michael Gorsuch brought state and federal claims against the City of Nashua; Nashua police officers, James Maloney, John C. Fisher, Jeffrey Maher, Thomas MacLeod, and Donald F. Conley; and two New Hampshire State Troopers, arising from Gorsuch's arrest and prosecution on a charge of negligent homicide.*fn1 The Nashua defendants move for summary judgment on the claims against them. In response, Gorsuch has withdrawn his claims in Counts IV, VI, and VII but objects to summary judgment on Counts I, II, III, V, IX, and X.*fn2
Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Material facts are "facts that might affect the outcome of the suit under the governing law." Id. at 248. The court considers the undisputed material facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011).
Only properly supported facts may be considered for purposes of summary judgment. Fed. R. Civ. P. 56(c)(1). Allegations, accusations, argument, and speculation are not facts to support or oppose summary judgment. Jones v. Walgreen Co., 679 F.3d 9, 13 (1st Cir. 2012). Further, "[a]ll properly supported material facts set forth in the moving party's factual statement shall be deemed admitted unless properly opposed by the adverse party." LR 7.2(b)(2).
On Sunday, October 28, 2007, Michael Gorsuch and his friend, Daniel Rodriguez, planned to watch the Patriots game and then the Red Sox in game four of the World Series. After meeting at Rodriguez's house, they drove to the Sky Bar in Nashua in a car from the Scion dealership where Rodriguez worked. Gorsuch and Rodriguez drank beer and mixed drinks during the evening, leaving the bar after midnight in Rodriguez's car.
On the way back, they missed the turn to Rodriguez's house, while moving at high speed. The car left the road, hit smaller trees, and stopped after colliding with a larger tree. Brett Parks was driving by at about 12:30 a.m., saw the accident scene, and stopped to help. When Parks arrived, Gorsuch was out of the car, talking to a 911 dispatcher on his cell phone. Parks found that the driver's door was open and that Rodriguez was in the back seat behind the driver's seat with his legs over the center console of the car. Parks moved the driver's seat forward to get to Rodriguez to assess his condition and did not find a pulse. Gorsuch also got into the car so that he could describe Rodriguez's condition to the 911 dispatcher.
Officer Christopher DiTullio and Sergeant Frank Bourgeois of the Nashua Police Department arrived at the accident scene and began to try to remove Rodriguez from the car. EMTs from the Nashua Fire Rescue Department arrived, and DiTullio and Bourgeois turned their attention to Gorsuch. Bourgeois told Gorsuch that Rodriguez was not breathing. DiTullio noted the smell of alcohol on Gorsuch's breath. Gorsuch said Rodriguez had been driving and that they had been wearing seatbelts. Bourgeois stated in his affidavit that he found Gorsuch's statements to be "deceptive". Gorsuch has very limited memory of the accident.
Gorsuch also talked to EMT Justin Hart. Gorsuch told Hart that he had gotten out of the car through the passenger side door. When Hart pointed out that the passenger door was pinned against a tree, Gorsuch explained that he had closed the door. Later, Gorsuch said that he climbed over Rodriguez to get out through the driver's door. Although Gorsuch appeared to have only minor injuries, the EMTs wanted him to be taken to the hospital.
Detectives Craig Allard and Kerry Baxter went to the hospital to talk
to Gorsuch. Gorsuch said that he had had beer and "Stoli bombs" and
that Rodriguez had had only two beers and one "Stoli bomb."*fn3
Gorsuch said that he was too drunk to drive and that
Rodriguez was driving when they left the bar. Gorsuch said they were
going too fast and remembered seeing trees. He also said that neither
of them was wearing a seatbelt. Gorsuch said that after the accident,
Rodriguez was in the driver's seat, that he leaned over to check
Rodriguez's pulse, and that he then opened the passenger door and got
out of the car. Baxter confronted Gorsuch with the inconsistencies
between his description of what happened and the actual situation
after the accident. Gorsuch stuck by his version of events.
Nashua Police Department policy required an investigation into the accident because of its severity and because of the fatality. Sergeant John Fisher was supervisor of the Nashua Police Department Collision Reconstruction Unit. After he was notified of the accident, Fisher contacted Sergeant James Maloney, a member of the unit, and Maloney went to the accident scene. Maloney observed the wrecked car and noted that it was crushed on the passenger side by trees. Maloney also talked to the officers at the scene who told him about Gorsuch's actions and statements.
Fisher, Maloney, and Sergeant Jeffrey Maher then met at the police department. Allard reported Gorsuch's statements about what had happened. Allard said that based on what he had seen at the accident scene and on Gorsuch's statements, he thought Gorsuch had been driving the car at the time of the accident. Fisher, Maloney, and Maher concluded that they would investigate the accident as a possible negligent homicide. Allard stated in his affidavit that based on Gorsuch's intoxication and his claims that he was a passenger in the car, which he reported to Maher, they decided to read Gorsuch his "Felony Administrative License Suspension rights and to do an involuntary blood draw." Maher, Fisher, and Maloney concluded that Gorsuch should be arrested for negligent homicide. Allard conducted the arrest and read Gorsuch his Miranda rights.
Later in the morning of October 29, 2007, Baxter and Allard interviewed Gorsuch further at the Nashua Police Department. Gorsuch stated again that he was not driving, that Rodriguez had passed out in the driver's seat, and that Gorsuch had checked Rodriguez for a pulse and for breathing. Gorsuch said that if the police had DNA or fingerprint evidence that showed he was driving, he would accept that he was driving. He remembered other details from the accident but said that he could not remember how he had gotten out of the car.
The Chief Medical Examiner for the State of New Hampshire, Dr. Thomas Andrews, conducted an autopsy on Rodriguez's body on the morning of October 29, 2007. He concluded that Rodriguez "died as a result of multiple blunt impact injuries sustained as the unrestrained passenger in a vehicle that left the roadway and struck a stand of trees on the passenger side." Maloney learned of Dr. Andrews's conclusions from Detective Patrick Goodrich and Officer Peter Laroche.
The Nashua Police Department continued the investigation over the next few months. Some of Rodriguez's friends denied Gorsuch's claim that Rodriguez would not let anyone else drive the cars from the dealership. DNA samples from the car were tested and showed that Gorsuch's DNA was on the steering wheel and Rodriguez's DNA was on the passenger's head rest.
Maloney, assisted by Fisher, completed a Nashua Police Department Traffic Collision Reconstruction Report on October 29, 2009. The report summarized their investigation and findings and concluded that Gorsuch was driving at the time of the accident.*fn4
In support, the report noted that driving under the influence and speed caused the accident, that Rodriguez's injuries were consistent with the extensive damage to the passenger side of the car, that Rodriguez's position in the car after the accident was consistent with him having been in the passenger seat, and that the autopsy found Rodriguez was a passenger at the time of the accident. The report further noted Gorsuch's minor injuries and his statements about wearing a seatbelt and getting out of the car on the passenger side.
Before Gorsuch was tried on the negligent homicide charge, his counsel obtained an accident reconstruction report from Charles A. Schack, President of CrashExperts, Inc. Based on his analysis, Schack gave his expert opinion that Rodriguez, not Gorsuch, was driving the car at the time of the accident. Among other things, Schack noted the Boston Red Sox hat lodged between the passenger headrest and the side airbag, which indicated that someone was in the passenger seat at the time of the accident; Rodriguez's shoe in the driver's side wheel well, which was consistent with Rodriguez having been the driver at the time of the accident, and Rodriguez's position in the back seat, where he could have been propelled from the driver's seat during the accident. Gorsuch's counsel provided Schack's report to the prosecutor.
In response, the prosecutor asked Gordon E. Johnston, owner and president of Crash Lab, Inc., who previously had done accident reconstruction for the New Hampshire State Police, to review the accident reconstruction evidence in the case. Johnston's report was not provided to the defense. The prosecutor then nolle prossed the charge against Gorsuch.
New Hampshire State Trooper Bowman contacted Fisher to notify the Nashua Police Department that the state was going to pursue a license revocation proceeding in the Department of Safety against Gorsuch. Bowman asked for materials from the Nashua Police Department. A hearing was held on May 20 and June 30, 2009.
Fisher testified at the hearing under subpoena. Gorsuch submitted the report prepared by Schack, along with other evidence to support his defense that he was not the driver. Gorsuch's counsel noted Johnston's opinion that Gorsuch was not the driver, although Johnston did not testify. The hearings examiner also considered the autopsy ...