Parker v. Town of Swansea

• Decision Date: 27 May 2003
• Docket Number: No. CIV.A. 01-10063-JGD.,CIV.A. 01-10063-JGD.
• Citation: 270 F.Supp.2d 92
• Parties: Richard PARKER, Plaintiff, v. TOWN OF SWANSEA, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

270 F.Supp.2d 92

Richard PARKER, Plaintiff, v. TOWN OF SWANSEA, et al., Defendants.

No. CIV.A. 01-10063-JGD.

United States District Court, D. Massachusetts.

May 27, 2003.

Barry Ward, New London, CT, for Plaintiff.

William P. Breen, Jr., Murphy, Hesse, Toomey, and Lehane LLP, Quincy, MA, Douglas I. Louison, James W. Simpson, Jr., Merrick, Louison & Costello, Boston, MA, for Defendants.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT¹

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The plaintiff, Richard Parker ("Parker"), has brought this action alleging that his constitutional and state law rights were violated on February 20, 1998 when he was shot a number of times by police following a car chase which resulted in his arrest. This matter is before the court on the motion of the Town of Somerset and Jeffrey Cote for summary judgment (Docket # 45) and the motion of the Town of Swansea, William McGrath, Richard Roussel and Marc Haslam for summary judgment (Docket # 48). As detailed herein, the motions are ALLOWED IN PART and DENIED IN PART as follows: Counts I and II (42 U.S.C. § 1983, and Mass. Gen. Laws ch. 12, § 11I)—motions of individual defendants for summary judgment are DENIED; Count IV (negligence) and Count V (42 U.S.C. § 1983)—motion of Town of Swansea for summary judgment is DENIED; Counts III (negligence) and Count VI (42 U.S.C. § 1983)—motion of Town of Somerset for summary judgment is ALLOWED; Count VII (assault and battery)—motions of the individual defendants for summary judgment are DNIED; Count VIII (malicious prosecution)—motions of the individual defendants for summary judgment are ALLOWED.

II. STATEMENT OF FACTS

On the evening of February 19, 1998, Parker contends he drove his jeep from his home in New London, Connecticut to attend a concert at a club in Providence, Rhode Island. He discovered that the club was closed, and was traveling home when he got lost in Massachusetts. At approximately 12:20 a.m., Swansea Police Officer William McGrath allegedly observed Parker's jeep drifting between eastbound lanes and into a westbound lane on Route 6 in Swansea. During this "drifting," Parker allegedly crossed over the double yellow center line of the road, which is a civil motor vehicle violation in Massachusetts. Parker disputes that he was drifting between lanes.

According to Officer McGrath, Parker's erratic driving raised his suspicions so he activated his lights and siren to signal Parker to pull over. Parker seemed to comply, but, as Officer McGrath was exiting his vehicle, Parker abruptly drove off. Parker disputes that this first stop ever took place.

It is undisputed, however, that Officer McGrath pursued Parker. After driving approximately 50-80 yards from the site of the alleged initial stop, Parker pulled over. Officer McGrath pulled his car alongside and slightly to the front of the driver's side of Parker's jeep. Parker contends that while he was waiting for Officer McGrath to approach his vehicle, a second Swansea police car driven by Swansea Police Officer Marc Haslam approached the scene traveling at a rapid speed. According to Parker, Officer Haslam's driving was "out of control" and he almost hit a mailbox. While the Swansea defendants dispute this description of Officer Haslam's driving, it is undisputed that he joined Officer McGrath at the stop, pulling in behind Parker's jeep. It is also undisputed that after Officer McGrath exited his cruiser, Parker drove away, fleeing on to Route 1-195 eastbound.

The Motor Vehicle Pursuit

After Parker fled, Officers Haslam and McGrath followed him onto 1-195, accessing the highway via exit 3. At this point, Parker and the Swansea officers were approximately one mile from Somerset. Swansea Officer Richard Roussel joined the chase, as did Somerset Police Officer Jeffrey Cote.

Somerset Officer Cote, acting as a back up, traveled behind the three Swansea cruisers, which were each traveling approximately 65-75 mph. Officer Roussel's car was directly in front of Parker's jeep, Officer McGrath was on Parker's right, and Officer Haslam was directly behind Parker. This configuration is known as a "rolling road-block" or a "box-in." Parker contends that the use of this technique violated Swansea's written policies for high speed pursuits. The police contend that Parker attempted to ram their cruisers during this chase, which Parker denies.

The vehicles remained in this "box-in" formation until they arrived at the Braga Bridge, which is located near exit 10. At that point, a disabled vehicle in the roadway forced the cars into a single file line. In addition, Fall River Police Officer Brian O'Hearn, who had received word of the chase, attempted to stop Parker by obstructing the roadway with his cruiser and aiming his firearm at Parker as Parker approached. Parker managed to escape through a small opening in Officer O'Hearn's roadblock.

Shortly thereafter, around exit 10 which accesses Route 88, Swansea's Sergeant Sadler who had been supervising the pursuit and knew multiple cruisers were involved, was informed by the officers that the vehicles were traveling at approximately 75 mph. He ordered the officers to stop the chase because the offenses for which they were following him were "[j]ust motor vehicle" offenses. At that point, all the officers complied and turned their sirens and blue lights off while slowing down in preparation for taking exit 10. However, Parker suddenly cut across the highway and took exit 10 himself. According to Parker, he chose to exit the highway at that point because it was the first time the police had slowed down and given him room to move.

As Parker was taking the exit, he lost control of his jeep and went off the road, hitting a tree and landing in a ditch. Parker asserts that smoke started coming out of his engine after he crashed.

The Post-Pursuit Shooting

All four police cars also took exit 10 and stopped near the crash site. It is undisputed that Officer Roussel immediately approached Parker's jeep by "walking quickly" with his flashlight in one hand and his service firearm in the other. The subsequent events are much in dispute. The Swansea defendants assert that as Roussel approached the jeep, he commanded Parker to stay in the vehicle and put his hands out the window. The defendants also assert that Parker briefly complied and put one hand out the window before quickly retracting it. Parker denies ever hearing these commands and denies putting his hand out the window.

According to the defendants, Parker then exited the driver's side of his jeep in a "combat crouch" shooting stance directed towards the officers with his hands clasped together in front of him at waistband level. Parker was wearing black weight lifting gloves with the fingertips cut off when he exited the jeep. The defendants assert that as Officer Roussel approached Parker, Parker raised his hands to shoulder level in Roussel's direction while still clasped together.

Officer Roussel claims that he thought Parker was pointing a gun at him and, therefore, "began squeezing the trigger" of his own gun. After shooting at Parker, Officer Roussel dove to his right and rolled to the right behind the rear of the jeep, dropping his flashlight. This allegedly caused the other officers to think that Officer Roussel had been shot, and they began firing at Parker as well. The officers contend that Parker did not go down immediately, and continued to act in a threatening manner and advance towards them, so they kept shooting. The defendants contend that the officers repeatedly told Parker to get down and place his hands up over his head, but to no avail. Parker denies hearing any such commands.

Massachusetts State Police ballistics testing conclusively determined that the police officers fired a total of forty-nine shots at Parker. Of these, twenty eight were attributed to Rousel, seven to Haslam, eleven to McGrath, and three to Cote. The testing was unable to determine from which firearm a fiftieth round was fired. According to Parker's doctors, between six and eight of these bullets struck Parker. These shots hit him in the foot, four places in his legs, his penis, and his abdomen.

For the most part, Parker disputes the defendants' account of events and asserts that he got out of the jeep because he was scared of the smoking engine. He also asserts that prior to exiting the jeep, he did not hear any commands. He contends that when he got out he was not in a crouch and that he had his hands out in front of him with his palms facing out because he was attempting to surrender. Parker asserts that he put his hands up in the air above his head upon hearing the first shot. Parker also maintains that, although he had his hands palms out in front of him when he got out of the jeep, he was soon shot in the finger and grabbed the injured finger tightly. According to Parker this is when the officers began "shooting [him] everywhere."

Parker denies ever pointing his finger at the officers as if he was holding a gun, and maintains that during the shooting he shouted to the police that he did not have a gun.

Parker finally returned to the ditch area near his jeep and collapsed on the ground. The defendant officers, accompanied by officers from other departments, then converged on Parker and handcuffed him. It is undisputed that while they were handcuffing Parker they repeatedly asked him where the gun was that he had been holding. The defendants contend that Parker responded by saying that he did not really have a gun but wanted the officers to believe that he did so they would be scared and retreat. Parker denies making any such statements. Rather, Parker asserts that he consistently maintained that he did not have a gun and told this to everyone that asked him. The police searched the area for the gun but found none. Parker was taken by ambulance, and then helicopter, to the hospital where he was listed in...