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.

A negligence claim was dismissed by agreement of the parties. 1

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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. When the district court rejected the 2

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. 

Rule 32(a)(4)(C) provides that "[a] party may use for any 2

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). 

-5-
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. The policy lists several factors to consider when 3

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. 

For completeness, we note that the policy prohibits high 3

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. 

-6-
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 claim and the 4

Under Rhode Island law, the driver of an authorized emergency 4

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

-7-
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

-9-
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 casespecific" 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

-10-
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)). 

-11-
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

-16-
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

-17-
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. The argument fails. 5

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

The second of these alleged violations is predicated upon the 5

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

-20-
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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