Ferreira v. City of East Providence

• Decision Date: 23 July 2008
• Docket Number: C.A. No. 05-75 S.,C.A. No. 05-73 S.
• Parties: Anthony J. FERREIRA, As Administrator of the Estate of Patricia J. Ferreira, and as Guardian of the Estate and Person of Ryan C. Ferreira, Plaintiff, v. CITY OF EAST PROVIDENCE, et al., Defendants. Anthony J. FERREIRA, individually, Plaintiff, v. CITY OF EAST PROVIDENCE, et al., Defendants.
• Court: U.S. District Court — District of Rhode Island

568 F.Supp.2d 197

Anthony J. FERREIRA, As Administrator of the Estate of Patricia J. Ferreira, and as Guardian of the Estate and Person of Ryan C. Ferreira, Plaintiff, v. CITY OF EAST PROVIDENCE, et al., Defendants.

Anthony J. FERREIRA, individually, Plaintiff, v. CITY OF EAST PROVIDENCE, et al., Defendants.

C.A. No. 05-73 S.

C.A. No. 05-75 S.

United States District Court, D. Rhode Island.

July 23, 2008.

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Michael D. Pushee, V. Edward Formisano, Sinapi Formisano & Coleman Ltd., Cranston, RI, for Plaintiff.

Marc DeSisto, DeSisto Law, Providence, RI, for Defendants.

OPINION AND ORDER

WILLIAM E. SMITH, District Judge.

The City of East Providence and various members of its police force ("Defendants")¹ seek summary judgment on claims brought against them by Anthony Ferreira ("Ferreira"), both individually and in his capacity as administrator of the estate of his sister, Patricia Ferreira ("Patricia"), stemming from Patricia's tragic suicide and the events immediately preceding her death. For the reasons set forth below, summary judgment in favor of Defendants on all counts is granted.

I. Facts and Background

The following facts are undisputed, or if not, are taken in the light most favorable to Ferreira. On October 10, 2001, twenty-eight year old Patricia died of a self-inflicted gunshot wound while barricaded in her car on Brightridge Avenue in East Providence. Earlier that day, after learning that Patricia and her boyfriend were arguing, Anthony Ferreira and his mother appeared at the East Providence Police Station with Patricia's eight year-old son. The Police were familiar with Patricia and her boyfriend, John Sousa, because of their frequent altercations. Anticipating that the police ultimately would be called to Sousa's home, where Patricia had been living, Ferreira and his mother informed Captain Walter Barlow of the fight, and that they would be taking Patricia's son to their home. After speaking with Patricia's son, Barlow dispatched a patrol car to Sousa's residence.

Officers Steven Tiernan and Michael David arrived first at Sousa's residence, followed shortly after by Sergeant Rush. Officer Tiernan spoke with Patricia and another individual who identified herself as Sousa's ex-wife. Officer David spoke with Sousa, who revealed that he had made alternate living arrangements for Patricia, though they were not yet available. Agreeing that she should not remain in the home with Sousa, Patricia arranged to stay with Sousa's ex-wife for the next few weeks. At that point, as Officers Tiernan and David remained to supervise the situation, Patricia began to remove her belongings from Sousa's home. Sousa then alerted the officers that Patricia had firearms in the home. Although both officers testified in a deposition that Sousa wanted Ms. Ferreira to remove her weapons because he was afraid she would accuse him of stealing them, Sousa maintains that he repeatedly told the officers not to allow Patricia to take her guns with her.

Shortly before 6:00 that same evening, Anthony Ferreira returned home. Patricia arrived there moments later with some of her belongings. Apparently upset about the possibility of getting into trouble with the police and DCYF, Patricia announced her intention to kill herself. She then walked to the rear of her car, retrieved two guns from the trunk, and got into the driver's seat. Seeing his sister with a handgun pointed at her chest, and another next to her lap, Ferreira reached into the car and took one of the guns away from her. Patricia then began to drive away, declaring that she would "just use my other gun." Ferreira then called 911 and reported that his sister was threatening to commit suicide. He told the operator that she had a gun.

Ferreira pursued his sister up the street, where she stopped her vehicle. As the police arrived at the scene and established a perimeter around the car, Ferreira remained close to Patricia. One of the officers, Sergeant Hall, ordered Ferreira to back away, but Ferreira refused, instead instructing the officers to leave the scene. Despite continued police orders that he move away from the vehicle, Ferreira draped his body across the windshield of Patricia's car, blocking the officers' view of her. The officers testified that Ferreira resisted their attempts to remove him from the windshield, whereas Ferreira claims that he eventually got off of the car voluntarily, and followed the officers' commands. Regardless, it is undisputed that a struggle ensued, and that the officers ultimately resorted to the use of pepper spray to subdue him. Ferreira was handcuffed and placed in a police cruiser,² as was Sousa, who arrived at the scene around the same time and who likewise attempted to approach the vehicle, despite police warnings to stay away. Another confrontation ensued, resulting in Sousa being taken into custody as well.

At this point, despite the presence of multiple police cruisers and officers surrounding the car, Patricia began to move her vehicle slowly up the street. Followed by the police, Patricia slowly drove several blocks until she reached Brightridge Avenue, where, because her path was blocked by a police van, she came to a final stop. Police cruisers then surrounded her vehicle. Sergeant Rush then took a position close to the car and could see Patricia in the driver's seat holding a handgun with the barrel in her mouth.

Sargent Hall arrived shortly thereafter and attempted to engage Patricia. Although he kept his distance and attempted to seek cover from a nearby truck, Hall was close enough to Patricia's vehicle that he could communicate with her. From a short distance away, Hall told Patricia to put the gun down on the dashboard and exit the vehicle. Captain Barlow, who knew Patricia through her past dealings with the police, also arrived on scene and began to converse with her in an attempt to get her to put down her weapon and exit the vehicle. As Hall and Barlow attempted to coax Patricia out of the vehicle, Sergeant Rush began to secure the perimeter and organize the other officers in case the situation escalated. At the same time, neighborhood residents began exiting their houses and coming to the scene.

At Sergeant Hall's instruction, Officer Kevin Feeney called the Special Response Team ("SRT") van to the scene. Lieutenant Alister McGregor (now deceased), who was in charge of the SRT, arrived shortly thereafter. The SRT determined that a "hasty rescue" plan should be in place, referring to an alternate plan which could be implemented if circumstances did not allow for execution of the primary, slower negotiation approach. This hasty rescue was to be executed only if it was determined that Patricia was seconds away from committing suicide and nothing else could be done. The plan called for two, two-man teams to approach the car from both sides. One team would consist of Feeney and Sgt. Rush with Sgt. Rush deploying a "flashbang" diversionary device on the driver side of Patricia's car. Feeney and Sgt. Rush would then make a speedy approach to the driver's door using a ballistic shield. The second team would consist of Lieutenant McGregor and Officer Michael David, who were to approach her on the passenger side of the vehicle, using a ballistic shield and a flashbang diversionary device. When they reached the passenger side, McGregor would throw the diversionary device through the passenger side front window. Simultaneously, Officer Feeney would break the driver side window and grab the firearm from Patricia.

As the plan was being put into place, Sgt. Hall and Captain Barlow continued their efforts to talk to Patricia. She told the officers that "the world is all screwed up," and began to talk about her personal problems. Captain Barlow and Sergeant Hall attempted to calm and reassure her. Despite this, Patricia indicated that she would rather die than be placed in a "mental institution." All during this time, she alternately would place the gun in her mouth or at her chest. Captain Barlow requested that Patricia look at him, and urged her not to do anything. After approximately one hour of discussions, Patricia reached into the backseat area and retrieved a cloth which she placed on the back cushion of her seat and headrest. She then opened her window, threw an American flag onto the hood of the car, indicating that she did not want to get blood on it, and told Captain Barlow and Sergeant Hall to return to their vehicles. Patricia then turned up the radio, blessed herself with the Sign of the Cross and closed her eyes.

At this point, Captain Barlow concluded it was the last and best opportunity for the police to try to save Patricia's life. He signaled to Lieutenant McGregor to initiate the hasty rescue plan. In accordance with the plan, the two, two-man teams approached the vehicle from either side. Sergeant Rush threw his flashbang device and it exploded in front of the driver side front wheel. Lieutenant McGregor threw his flashbang toward the right front passenger window, but the window did not break as intended; instead, the device exploded just to the right of the car. Officer Feeney immediately ran to the driver's side window, swung at the window until it broke, and reached into the car. Unfortunately, as Officer Feeney reached his hands into the car, the gun fired and he fell to the ground. Feeney immediately stood up and retrieved the handgun which was still in Patricia's hand and on her lap. In spite of the officers' efforts, Ms. Ferreira's aim was true, and she was pronounced dead at the scene.

Anthony Ferreira brought two separate suits, which have since been consolidated, against the City of East Providence and several members of the city's police force, both individually and in their official capacities. In his personal suit, Ferreira advances the following claims: negligence, assault and...