United States District Court, D. Rhode Island
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.
MEMORANDUM AND ORDER
J. McConnell, Jr., United States District Judge.
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.
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 and also on the Town's immunity and
community caretaking function defenses. ECF No. 77.
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.
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.
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
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.
did not prevent Mr. Richer from buying any other firearms
after the September 28, 2008 incident. 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.
STANDARD OF REVIEW
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.
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
Count I-Rhode Island Firearms Act
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.
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. 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.
Count II-Second Amendment
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