United States Court of Appeals
For the First Circuit
No. 11-1026
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]
Before
Boudin, Howard and Thompson,
Circuit Judges.
Jeffrey D. Sowa, with whom Michael J. Jacobs and LaPlante Sowa
Goldman were on brief, for appellants.
Marc DeSisto, with whom DeSisto Law was on brief, for
appellees.
February 9, 2012
HOWARD, Circuit Judge. 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
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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.1
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.
1
A negligence claim was dismissed by agreement of the parties.
-3-
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
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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.2 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.
2
Rule 32(a)(4)(C) provides that "[a] party may use for any
purpose the deposition of a witness, whether or not a party, if the
court finds . . . that the witness cannot attend or testify because
of age, illness, infirmity, or imprisonment." Fed. R. Civ. P.
32(a)(4)(C).
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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.3 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.
3
For completeness, we note that the policy prohibits high
speed pursuits except in situations involving the attempted
apprehension of persons wanted for the commission of offenses that
threaten the safety of others or the pursuit of a driver who "has
committed moving motor vehicle violations which have endangered the
lives and safety of others, and was operating in a reckless manner
before the pursuit was initiated, and is continuing to operate in
a manner that recklessly endangers the lives and safety of others
. . . ." The evidence indicates, and the plaintiffs do not deny,
that at least one of these conditions was satisfied in this case.
The decision to pursue Pereira thus fell within the discretion of
the acting officers and their supervisor, circumscribed by the
considerations noted above.
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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 claim4 and the
4
Under Rhode Island law, the driver of an authorized emergency
vehicle engaged in the pursuit of an alleged violator of the law is
subject to liability only for his reckless disregard for the safety
of others, not for mere negligence, provided the driver gives an
audible warning signal while in motion. See R.I. Gen. Laws
§§ 31-12-6, 31-12-8, 21-12-9; see also Medeiros v. Town of South
Kingstown, 821 F. Supp. 823, 828 n.1 (D.R.I. 1993). Prior to
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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
of others notwithstanding any violation of the policy. This timely
appeal ensued.
trial, there was some question about whether the defendants
qualified for this protection in light of deposition testimony in
which Pereira insisted that the defendants' lights and sirens were
never activated. Although this testimony contradicted an earlier
interview statement in which Pereira had indicated that the
cruiser's lights and siren were on when the defendants pursued him,
it was deemed sufficient to create a material factual dispute to
overcome summary judgment. With the preclusion of Pereira's
testimony at trial, however, the officers' testimony that their
siren was activated remained uncontroverted. Any doubts as to the
applicable standard of care were therefore resolved in favor of a
recklessness standard, and the plaintiffs voluntarily relinquished
their negligence claim.
-8-
II. ANALYSIS
On appeal, the plaintiffs challenge the district court's
denial of their motion to remand the action to state court, the
preclusion of Pereira's testimony, and the climactic grant of the
defendants' motion for judgment as a matter of law. We address
these points in turn.
A. Supplemental Jurisdiction
The plaintiffs first argue that the district court should
not have retained jurisdiction over this matter once the federal
claims were decided against them on summary judgment. They assert
that we should review the district court's denial of their motion
to remand de novo and conclude that the district court erred.
Neither the standard of review nor the result is warranted.
To be sure, there are instances in which we review a
district court's denial of a motion to remand de novo, such as when
the motion challenges the existence of a federal claim upon which
federal jurisdiction is predicated. See BIW Deceived v. Local S6,
Indus. Union of Marine and Shipbuilding Workers of America, IAMAW
Dist. Lodge 4, 132 F.3d 824, 830 (1st Cir. 1997). Once a case is
properly before a federal district court, however, that court has
broad authority to retain jurisdiction over pendant state law
claims even if the federal claim is later dismissed. Roche v. John
Hancock Mut. Life Ins. Co., 81 F.3d 249, 256-57 (1st Cir. 1996)
("In a federal-question case, the termination of the foundational
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federal claim does not divest the district court of power to
exercise supplemental jurisdiction but, rather, sets the stage for
an exercise of the court's informed discretion.") (citing 28 U.S.C.
§ 1367(c)(3) (authorizing but not requiring a district court to
decline adjudication of lingering state-law claims after it has
dismissed “all claims over which it has original jurisdiction”)).
In determining whether to retain jurisdiction on such an occasion,
the court must take into account considerations of judicial
economy, convenience, fairness to the litigants, and comity. Id.
at 257. In the end, though, its decision is a "pragmatic and case-
specific" one that we review only for abuse of discretion. Id.
The district court's decision here to retain jurisdiction
over the plaintiffs' state law claims after dismissing the federal
claims fell squarely within the realm of its discretion. At the
time of the plaintiffs' motion to remand, the case had passed
through every phase of litigation but trial. Moreover, the court
had already determined many substantial questions of state law at
summary judgment. Under such circumstances, the interests of
judicial economy and fairness weighed in favor of retaining
jurisdiction. We therefore conclude that the district court
appropriately exercised its discretion.
B. Precluded Testimony
The plaintiffs next take issue with rulings by the
district court that prevented them from admitting the testimony of
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Josimar Pereira. They argue that the district court erred first in
denying use of Pereira's deposition testimony under Federal Rule of
Civil Procedure 32(a)(4)(C) and then in refusing to grant a
continuance to secure Pereira's live testimony. We disagree on
both counts.
1. Deposition testimony
Rule 32(a)(4)(C) allows for the admission of a witness's
deposition testimony in lieu of live testimony where "the court
finds . . . that the witness cannot attend or testify because of
age, illness, infirmity, or imprisonment." Fed. R. Civ. P.
32(a)(4)(C). There is no dispute that although Pereira was
imprisoned, he could have been made available to testify at trial
by means of a writ of habeas corpus ad testificandum. The
plaintiffs nonetheless sought to admit Mr. Pereira's deposition,
contending that Pereira's imprisonment rendered him ipso facto
"unavailable" within the meaning of the rule.
While ordinarily we review a district court's refusal to
admit deposition testimony for abuse of discretion, Daigle v. Maine
Medical Center, Inc., 14 F.3d 684, 691 (1st Cir. 1994), the
parties' disagreement here centers not on the application of Rule
32(a)(4)(C) but on its interpretation. In such circumstances, de
novo review is appropriate. In re Pharm. Indus. Average Wholesale
Price Litig., 588 F.3d 24, 38 (1st Cir. 2009) (citing NEPSK, Inc.
v. Town of Houlton, 282 F.3d 1, 5 (1st Cir. 2002)).
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In interpreting a formal rule of procedure, our starting
point is the language of the rule itself. Downy v. Bob's Disc.
Furniture Holdings, Inc., 633 F.3d 1, 6 (1st Cir. 2011) (citations
omitted). We interpret this language with due regard to its
ordinary meaning and the context in which it is found. In re
Pharm. Indus. Average Wholesale Price Litig., 588 F.3d at 39
(citations omitted).
A plain, common sense reading of Rule 32(a)(4)(C)
illustrates the weakness in the plaintiffs' position. The rule
requires as a prerequisite to the admission of deposition testimony
that the court find "that the witness cannot attend or testify
because of" one of the enumerated conditions. Fed. R. Civ. P.
32(a)(4)(C) (emphasis added). By its terms, then, the rule does
not permit the use of deposition testimony where the age, illness,
infirmity, or imprisonment of a witness provides no basis to
conclude that the witness is unable to provide live testimony.
Moreover, this reading makes sense as a practical matter. It would
be startling to suggest that deposition testimony should be
substituted, based on nothing more than merely citing a witness's
age or asserting that a witness was ill, without establishing why
age or illness presented a genuine barrier to live testimony.
Similarly, a credible claim cannot be made that Mr. Pereira should
be excused from testifying in person without establishing that his
imprisonment prevents him from doing so.
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Contrary to the plaintiffs' suggestion, another section,
32(a)(4)(B), supports rather than undermines this conclusion. Rule
32(a)(4)(B) allows admission of deposition testimony where "the
witness is more than 100 miles from the place of hearing or trial
. . . ." Fed. R. Civ. P. 32(a)(4)(B). We have held that so long
as this distance criterion is satisfied, "the admissibility of
deposition testimony under the aegis of Rule [32(a)(4)(B)] is not
contingent upon a showing that the witness is otherwise
unavailable." Daigle, 14 F.3d at 691. Critically, however, Rule
32(a)(4)(B) does not contain the requirement that the court find
"that the witness cannot attend or testify because of" distance.
Compare Fed. R. Civ. P. 32(a)(4)(C), with Fed. R. Civ. P.
32(a)(4)(B). One therefore cannot simply graft our interpretation
of Rule 32(a)(4)(B) onto Rule (a)(4)(C); indeed, in order to give
any effect at all to the difference in the construction of these
two provisions, we must reject the plaintiffs' attempt to do so.
Cf. United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("It is
our duty to give effect, if possible, to every clause and word of
a statute . . . .") (quotation omitted).
In sum, the district court was correct to reject the
plaintiffs' construction of Federal Rule of Civil Procedure
32(a)(4)(C) and to refuse to admit Mr. Pereira's deposition where
it had found that he was, in fact, available for live testimony.
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2. Motion to continue
The plaintiffs argue that even if Pereira was not
"unavailable" for the purposes of Federal Rule of Civil Procedure
32(a)(4)(C), the district court should have granted their request
for a continuance so they could procure Pereira's live testimony
through a writ of habeas corpus ad testificandum. They
characterize their request as "for a continuance of roughly an
hour," noting that they made the request around 3:00 p.m., and the
court was scheduled to recess at 4:00 p.m. They further emphasize
that because the jury was set to return the following morning to
deliberate, the continuance would not have resulted in keeping the
jury empaneled for an additional day.
District courts enjoy broad discretion in managing their
dockets, and we review a denial of a motion for a continuance for
abuse of that discretion only. Macaulay v. Anas, 321 F.3d 45, 49
(1st Cir. 2003). In conducting this review, we "look[] primarily
to the persuasiveness of the trial court's reasons for refusing the
continuance and give[] due regard not only to the factors which
inform that court's ruling but also to its superior point of
vantage.” United States v. Ottens, 74 F.3d 357, 360 (1st Cir.
1996). The burden is on the aggrieved party to demonstrate that in
refusing the continuance, the district court "exhibited an
‘unreasonable and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay.’” United States v.
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Rodríguez–Durán, 507 F.3d 749, 763 (1st Cir. 2007) (quoting United
States v. Rodriguez–Marrero, 390 F.3d 1, 21–22 (1st Cir. 2004)).
The plaintiffs have not met this high burden. The record
indicates that opposing counsel had made known its objection to the
admission of Pereira's deposition testimony and the issue was
discussed at the final pre-trial conference. Although the record
does not disclose the content of those discussions, this much is
known: they prompted the plaintiffs to speak to legal counsel at
the correctional institute at which Pereira was imprisoned to
determine whether Pereira could be made to appear by means of a
writ of habeas corpus ad testificandum. Despite confirming that
this was indeed a possibility, the plaintiffs opted not to pursue
it, choosing instead to rely on their proposed interpretation of
Rule 32(a)(4)(C). Moreover, they did so notwithstanding that they
had ample opportunity prior to trial to resolve the issue and, if
necessary, to obtain a court order to secure Pereira's presence.
We see no abuse of discretion in the district court's decision to
deny the plaintiffs' mid-trial request for a continuance to remedy
the foreseeable and easily avoidable predicament that resulted when
they lost their gamble. See United States v. Saccoccia, 58 F.3d
754, 770 (1st Cir. 1995) ("[R]elevant factors [in our analysis] may
include such things as . . . the extent to which the movant has
contributed to his perceived predicament . . . .").
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C. Judgment as a Matter of Law
The plaintiffs' last assignment of error concerns the
entry of judgment as a matter of law. We review such dispositions
de novo, based on an examination of the evidence and inferences
reasonably drawn therefrom in the light most hospitable to the
nonmoving party. Fashion House, Inc. v. K mart Corp., 892 F.2d
1076, 1088 (1st Cir. 1989) (citing Wagenmann v. Adams, 829 F.2d
196, 200 (1st Cir. 1987)). In conducting this review we do not
pass upon the credibility of witnesses, resolve evidentiary
conflicts, or evaluate the weight of the evidence. Id. (citing
Wagenmann, 829 F.2d at 200). Withdrawing a claim from the jury is
appropriate only if the evidence, viewed from this perspective,
compels a result as to which reasonable minds could not differ.
Id.
Where, as here, a federal court exercises supplemental
jurisdiction over a state law claim, state law supplies the rule of
decision. Hoyos v. Telecorp Commc'ns, Inc., 488 F.3d 1, 5 (1st
Cir. 2007). To recover under Rhode Island law, the plaintiffs bore
the burden of demonstrating by a preponderance of the evidence the
standard elements of a tort claim: “a legally cognizable duty owed
by a defendant to a plaintiff, a breach of that duty, proximate
causation between the conduct and the resulting injury, and the
actual loss or damage.” Olshansky v. Rehrig Intern., 872 A.2d 282,
289 (R.I. 2005). Inasmuch as the defendants were alleged to have
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been engaged in the pursuit of an alleged violator of the law and
activated their lights and siren during the pursuit, they can be
held liable in tort only if their conduct constituted a reckless
disregard for the safety of others. See R.I. Gen. Laws §§ 31-12-6,
31-12-8, 31-12-9. In other words, the plaintiffs were required to
prove that the defendants conducted themselves "in such a manner as
to demonstrate a heedless indifference to the consequences of
[their] action." Roberts v. Kettelle, 356 A.2d 207, 213 (R.I.
1976).
The district court concluded that no reasonable jury
could find that the plaintiffs had satisfied this burden.
Highlighting uncontradicted testimony that the officers stopped or
slowed down at every intersection, and never closed within 400 feet
of Pereira's vehicle, the court found that the evidence compelled
the conclusion that they did not exhibit reckless disregard for the
safety of others in balancing their simultaneous duties to
investigate the vehicle matching the description in the radio
broadcast and to avoid undue risk of harm to innocent bystanders in
the process.
On appeal, as at the close of evidence in the district
court, the plaintiffs' challenge rests primarily on alleged
violations of the PPD's pursuit policy. The plaintiffs assert that
(1) under Rhode Island law, a pursuit policy violation is evidence
of recklessness sufficient to submit the question of breach of a
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duty of care to a jury, and (2) the evidence presented at trial
could support a jury finding that the officers violated their
department's pursuit policy by failing to consider the various
factors required to assess the dangerousness of the pursuit
relative to the potential advantage of apprehending the suspect and
by failing to notify their shift lieutenant of the pursuit as soon
as practicable.5 The argument fails.
The plaintiffs rely on Seide v. State, 875 A.2d 1259
(R.I. 2005), in which the Rhode Island Supreme Court vacated a
judgment granted as a matter of law in favor of police officers who
had engaged in a lengthy and dangerous high-speed chase of a
fleeing car thief that resulted in the death of an innocent
bystander. In Seide, testimony established that the officers
pursued the thief – who prior to the officers' intervention had
driven safely and within the speed limit – for more than thirty
minutes as he "disregarded traffic signals, drove through downtown
Providence erratically, swerved at police cruisers, struck objects,
repeatedly exited and reentered major highways, reached speeds of
5
The second of these alleged violations is predicated upon the
testimony of the shift lieutenant and dispatcher. The plaintiffs
claim that if the jury were instead to credit the officers'
testimony that they called in the pursuit immediately upon
activating the cruiser's lights and siren and provided continual
updates throughout the chase, a second violation of the pursuit
policy would have still occurred based on the shift lieutenant's
failure to appreciate the danger of the pursuit and call it off.
But what the plaintiffs allege under the alternative scenario is a
policy violation by a third party to the case, not recklessness on
the part of the individual defendants.
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approximately ninety miles per hour, and endangered the safety of
the police officers and the driving public." Id. at 1269.
The court held, inter alia, that this evidence could
reasonably lead to the conclusion that the officers' failure to
terminate the chase sooner despite the obvious risks that it posed
was in reckless disregard for the safety of others. Id. Noting
that the plaintiff had also alleged that the defendants were
reckless by virtue of their failure to comply with their
department's pursuit policy, the court, without further
elaboration, briefly indicated that a violation of a pursuit policy
"could serve as evidence" of recklessness. Id. at 1272 (emphasis
added). It is this last statement which serves as the foundation
of the plaintiffs' appeal in this case.
Seide, however, is not as definitive as the plaintiffs
claim. To begin, the court quite understandably did not say that
any violation of a pursuit policy necessarily constitutes evidence
of recklessness, regardless of how remote the connection between
the purported violation and the alleged risk. Although the court
sensibly observed that a pursuit policy may serve as a standard
against which a jury could measure officer conduct, the specific
holding in Seide was limited to the determination that the
violation of the policies at issue in that case could serve as
evidence of recklessness. Id. That is not the same as saying that
any pursuit policy violation creates an issue for the jury.
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A violation of the requirement to engage in a particular
decisional calculus or to notify and update the dispatch center of
the status of the pursuit does not necessarily equate to
recklessness. And, in any event, the plaintiffs' evidence of the
former violation was starkly deficient: although Officer LaForest
acknowledged that he did not consider the relevant factors, the
driver, Officer Lombardi, was never asked whether he considered
them.
In the main, pursuit policies are designed to guide
officers, not to create an independent source of liability. See,
e.g., Courville on Behalf of Vincent v. City of Lake Charles, 720
So.2d 789, 799 (La. Ct. App. 1998) ("We find that a violation of
[departmental pursuit] policies is not negligence per se."); Norris
v. Zambito, 520 S.E.2d 113, 118 (N.C. Ct. App. 1999) ("A violation
of voluntarily adopted safety policies is merely some evidence of
negligence and does not conclusively establish negligence.")
(citations omitted); Saarinen v. Kerr, 84 N.Y.2d 494, 503 n.3
(1994) ("A violation of this policy, if in fact it occurred, would
be an important, although not dispositive, factor in determining
whether [the defendant] had acted recklessly."). The ultimate
issue, in other words, is not lack of compliance with pursuit
policies, but recklessness.
While the plaintiffs peg their showing of recklessness
mostly on the mere existence of alleged policy violations, they
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also argue -- albeit in lackluster and conclusory fashion -- that,
regardless of the department's policies, the officers' decision to
continue the pursuit was reckless conduct in light of the attendant
circumstances. This argument cuts closer to the substantive heart
of the issue, and while the plaintiffs' presentation of the claim
risked forfeiture, we consider it separately on the merits.
The gist of the matter is this: that for the police to
chase a suspect for a considerable period at very high speed,
trying to box him in and bring him to a halt with hastily erected
roadblocks surrounded by innocent drivers as the suspect travels
the wrong way on a divided highway, does present a jury issue as to
recklessness, see Seide, 875 A.2d at 1264; but the present case is
quite different and does not. By the police account (which was the
only version available to the jury):
-the entire episode lasted only about
two minutes, giving the officers a limited
period to assess the situation, their options
and the best course among various alternatives
(break off, tail for a period, speed up and
intercept);
-the officers were not themselves
driving dangerously for they had their lights
and sirens activated throughout the pursuit
and they drove at a moderate speed and slowed
or stopped at each intersection, which
necessarily created a significant distance
between their car and Pereira's throughout the
chase;
-the fleeing car was perceived to be
associated with two armed robberies and the
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high speed flight tended to confirm the
likelihood that the driver and perhaps anyone
else in the car was associated with a serious
crime and posed a continuing danger to the
community;
In substance, the police did little more than attempt for
a couple of minutes to keep a fleeing car in sight, making no
effort physically to intercept and halt it. To call this
"reckless" would be to extend the label -- a demanding standard,
e.g., Roberts, 365 A.2d at 213-14 -- far beyond Seide. And while
it might have been better practice to reserve judgment on the issue
and let the jury return its verdict, see Fed. R. Civ. P. 50(b),
which would almost certainly have mooted the issue and also avoided
the possibility of a retrial in the event of a successful appeal,
we cannot fault the district court for its ultimate decision that
no reasonable jury could side with the plaintiffs.
Based on Seide, the Rhode Island Supreme Court does not
share the apparent view, joined by eight Justices in Scott v.
Harris, that it is almost never unreasonable for the police to
decline to break off a chase because that would give any fleeing
suspect a ticket to immunity. 550 U.S. 372, 385-86 (2007). Rhode
Island is entitled to use its own standard and a federal court must
respect that standard in ruling on state law claims. But that
standard is surely not infinitely elastic and we think that it
cannot stretch to the circumstances of this case.
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The case is quite unusual, for ordinarily there is more
than one factual description of what happened, and the version
presented by the plaintiff is generally more favorable to his case.
The choice between those versions is almost always for the jury.
But in this case, only the defense version was available.
We need go no further. Absent sufficient evidence on the
issue of breach, the jury had no legally cognizable basis for
finding the officers liable for Goncalves's death. It follows
inexorably that there was no error in the allowance of the
defendants' motion for judgment as a matter of law.
III. CONCLUSION
For the aforementioned reasons, we affirm the district
court in all respects.
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