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Richer v. Parmelee

United States District Court, D. Rhode Island

June 4, 2019

JASON A. RICHER, Plaintiff,
JASON PARMELEE as the Finance Director of the Town of North Smithfield, TOWN OF NORTH SMITHFIELD, and STEVEN E. REYNOLDS in his official capacity as Chief of the North Smithfield Police Department, TIM LAFFERTY, Individually and in his Official Capacity as Captain of the North Smithfield Police Department, and OFFICERS STEPHEN RICCITELLI, RUSSELL AMATO, GLENN LAMOREUX, MARK BERGERON, and GREGORY LANDRY, Individually and in their Official Capacities as Members of the North Smithfield Police Department, John and Jane Doe, Defendants.


          John J. McConnell, Jr., United States District Judge.

         Jason Richer filed suit after North Smithfield Police, responding to a well check request made by his then-wife, confiscated three guns from his home and refused to return them to him. He filed a partial Motion for Summary Judgment a few years ago and this Court granted his motion on his Count IV due process claim, finding that the Town's refusal to return his guns for six and a half years "violated [his] constitutionally protected procedural due process rights." Richer v. Farmelee, 189 F.Supp.3d 334, 336 (D.R.I. 2016) (Richer 1). The Court denied Mr. Richer's motion on all other grounds.

         The case has been enhanced somewhat since the Court's decision. Mr. Richer originally sued Jason Parmelee, the Finance Director for the Town of North Smithfield, the Town of North Smithfield, and Steven Reynolds, as Chief of the North Smithfield Police Department ("The Town"). He has since amended his complaint, expanding his claims and adding North Smithfield Police Captain Tim Lafferty and Officers Stephen Riccitelli, Russell Amato, Glenn Lamoreux, Mark Bergeron, and Gregory Landry. Operating from Mr. Richer's Fourth Amended Complaint (ECF No. 86), both parties have filed Cross-Motions for Summary Judgment. The Town has moved on all the remaining counts: Counts I, II, III, V, VI, VII, and claims for Declaratory and Injunctive Relief (ECF No. 79) and Mr. Richer has moved on Counts III, IV, VI, and VII[1] and also on the Town's immunity and community caretaking function defenses. ECF No. 77.

         I. FACTS

         On September 19, 2008, Mr. Richer and his then-wife Tracy had an argument, prompting him to call 911. ECF No. 89 at ¶ 11. Although he hung up the phone before speaking to an operator, North Smithfield Police Department ("NSPD") responded. Id. Apparently, Mrs. Richer tried to take the phone out of his hand as he was calling, but he did not reveal this assault to the police because he did not want her to get arrested. Id. at ¶ 12. Officers left the Richer's home that day without seizing any firearms or arresting anyone. ECF No. 93 at ¶ 32. Police responded to another 911 call about a week later, this time from Mrs. Richer; during that call, she told police that she was concerned that Mr. Richer had tried to harm himself. ECF No. 89 at ¶ 13. She believed that he put a handful of pills in his mouth intending to overdose. ECF No. 93 at ¶ 35. A tape recording of the argument revealed that Mr. Richer made several statements revealing that he "lost his will to live," his family "would be better off without" him, and that he was "getting out of [her] life." ECF No. 89 at ¶ 52A. He put pills into his mouth and told his wife that he was "going to bed and [would not] get up." Id. at ¶ 16. While it appears that Mr. Richer put four pills in his mouth, his regular dose of prescription medication, Mrs. Richer told the 911 operator that he swallowed a handful of pills and she did not know what they were. Id. at ¶ 17. The 911 tape revealed that Mr. Richer told her they were his prescribed pills, but she told the operator that he had "prescriptions for all kinds of stuff." Id. at ¶18.

         The 911 operator communicated this information to NSPD officers, who responded to the Richer's home for a possible suicidal male who had ingested pills. Id. at ¶ 20. Officers spoke with both Mr. and Mrs. Richer and one of their young sons. Id. at ¶¶ 24-27. Mrs. Richer told officers that she and Mr. Richer had been fighting and about what he said and did. Id. at ¶¶ 26-27. It is disputed when Mrs. Richer and the officers knew that he had taken only his prescribed dose of medications and spit them out into the trash can-Mr. Richer says he told her while she was on the phone with 911 and the Town says it was at or about the time the officers arrived on the scene-but in any event, the officers concluded that Mr. Richer's actions suggested that he wanted to harm himself and, based on the totality of the circumstances at the scene, insisted that Mr. Richer go to the hospital for an evaluation. Id. at ¶¶ 26-28; ECF No. 93 at ¶¶ 52-53. Officer Riccitelli testified that the key to his determination that Mr. Richer had made a suicide attempt was his conversation with the Richer's son's. ECF No. 95 at ¶ 119.

         North Smithfield Rescue also responded to the scene and informed Mr. Richer that they were going to take him to the hospital to have him evaluated and treated if necessary. ECF No. 89 at ¶ 43. The rescue report stated that "Pt threatened] to kill himself, pt took 4 pills then spit them out. PD wanted pt seen for an evaluation. Pt has emotional problems going on at home. Pt transported without any problems." ECF No. 93 at ¶ 39. Mr. Richer told rescue personnel that he was not suicidal. Id. at ¶ 37. Mrs. Richer wanted Mr. Richer to be medically evaluated because although he told her he took only his regular medication she believed he could have taken a lot more than he said or could have taken something else. ECF No. 89 at ¶¶ 44-45. Mr. Richer agreed to go to Landmark Medical Center. Id. at ¶ 47. He was not admitted, but told to follow up with his regular physician! he was discharged within minutes of arriving there. Id. at ¶¶ 48-49.

         Meanwhile, NSPD officers asked about whether there were guns on the property and Mrs. Richer confirmed that there were. ECF No. 89 at ¶ 30. There is a semantic dispute over whether Mrs. Richer asked for the guns to be removed or whether the officers asked her if she wanted them removed, but nevertheless, the guns were found, she gave her permission to NSPD to take the guns, and police removed them from the property for safekeeping. Id. at ¶¶ 31-33, 36; ECF No. 93 at ¶¶ 61-62. Mr. Richer did not specifically consent to the seizure of his guns. ECF No. 93 at ¶ 60. NSPD agree that there was no crime committed that clay and no resulting criminal investigation. Id. at ¶ 66.

         NSPD did not prevent Mr. Richer from buying any other firearms after the September 28, 2008 incident.[2] ECF No. 89 at ¶ 54. NPSD returned Mr. Richer's guns six and a half years after the seizure, and on by after he filed this lawsuit. ECF No. 89 at ¶ 56.


         Summary judgment is warranted when "the pleadings [and discovery], together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The analysis needed for cross-motions for summary judgment is the same. Scottsdale Ins. Co. v. Torres, 561 F.3d 74, 77 (1st Cir. 2009) ("The presence of cross-motions neither dilutes nor distorts this standard of review"). In evaluating cross-motions, the court must determine whether either party is entitled to judgment as a matter of law based on the undisputed facts. Id.

         III. ANALYSIS

         The Court will first begin its analysis with the four claims it considered on Mr. Richer's motion in Richer I. It will be brief because the Court's decision against Mr. Richer is unchanged and the undisputed facts analyzed through the law of these claims falls in favor of the Town's motion.

         A. Count I-Rhode Island Firearms Act

         The Court previously denied Mr. Richer's Motion for Summary Judgment on his claim under the Rhode Island Firearms Act ("RIFA") because that .statute contemplates only injunctive relief, not money damages and the Town returned Mr. Richer's guns, so no injunctive relief was available to him. Richer I, 189 F.Supp.3d at 343. And the Court rejected Mr. Richer's argument that he was entitled to relief under R.I. Gen. Laws § 9-1 2, finding that he could not recast his claim under another statute. Id. at 344. The Town now moves for summary judgment.

         R.I. Gen. Laws § 9-1-2 "provides civil liability for criminal offenses" and a "plaintiff may recover civil damages for injury ... that results from the commission of a crime or offense, irrespective of whether charges have been filed against the offender." Morabit v. Hoag; 80 A.3d 1, 4 (R.I. 2013). The criminal act alleged is "Defendants' unwritten policy of requiring persons whose guns they have seized to obtain an order in state court before they return them." ECF No. 86 at ¶ 65. But it is undisputed that the Town returned Mr. Richer's guns without a state court order so he cannot now argue that the Town violated the RIFA.[3] The Town did not commit a crime, so he is not entitled to money damages under § 9-1-2. The Court therefore GRANTS the Town's Motion for Summary Judgment (ECF No. 79) on Count I.

         B. Count II-Second Amendment

         The Town moves for summary judgment on Mr. Richer's Second Amendment claim. In Richer I, the Court remarked that "it is dubious whether [his] Second Amendment rights are at all implicated in this case" because his claims invoked rights protected under the Fourth and Fourteenth Amendment. Richer I, 189 F.Supp.3d at 343. The Court relied on caselaw finding that the Second Amendment does not give an individual an absolute right to keep arms and does not protect that person's right to have a particular gun. See Id. at 342-43. Because the ...

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