Bogosian et al v. Rhode Island Airport Corporation (T.F. Green Airport) et al

Filing 124

MEMORANDUM AND ORDER Re: 33 Motion for Summary Judgment. Defendants' Motion for Summary Judgment on claims of assault and battery (Count IV) and claim of loss of consortium (Count VII) is GRANTED. The claim for negligent training and supervi sion against Rhode Island Airport Corporation (Count VIII) is DISMISSED. So Ordered by Senior Judge Mary M. Lisi on 4/27/2017. (Feeley, Susan) Modified on 4/27/2017 to note that a copy of the Memorandum and Order was forwarded to Plaintiffs via First-class mail. (Feeley, Susan).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
GREGG BOGOSIAN and THADOSHA
BOGOSIAN and A.B.,
a minor child, by and through her parents
and natural guardians, Gregg Bogosian and
Thadosha Bogosian,
Plaintiffs
v.

C.A. No. 14-080-ML

RHODE ISLAND AIRPORT CORPORATION
(T.F. GREEN AIRPORT); OFFICER STEPHEN E.
REIS; SERGEANT CHARLES E. HALL;
OFFICER JOHN KINGSTON; and OFFICER
JOHN DOE,
Defendants

MEMORANDUM AND ORDER
Following his arrest and brief detainment at the T.F. Green
Airport (the “Airport”) in Warwick, Rhode Island, Gregg Bogosian,
(“Bogosian”), together with his wife Thadosha and on behalf of
their minor child, A.B., (together, the “Plaintiffs”) filed a ninecount complaint (the “Complaint”)(ECF 1-2) in Rhode Island state
court, alleging, inter alia, wrongful arrest and assault and
battery. Because the Complaint also asserted claims of illegal
search and seizure in violation of the Fourth Amendment, the
Defendants, the Airport and the officers of the Airport Police
Department, removed the case to this Court.

1

After a long and contentious discovery period, during which
the Plaintiffs dismissed their first set of attorneys and engaged
new counsel, the Defendants filed a motion for summary judgment
(ECF No.

33).

While

the

Defendants’

motion

was

pending,

the

Plaintiffs terminated their second set of attorneys and engaged new
successor counsel to pursue their claims.
After the parties’ respective positions had been briefed, the
Court conducted a hearing on the Defendants’ motion, in the course
of which it dismissed Counts V, VI, and IX (Wrongful Arrest and
Imprisonment,

Malicious

Prosecution,

and

Illegal

Search

and

Seizure) and denied the Defendants’ motion as to Counts I, II, III,
IV,

and

VII

(Intentional

Infliction

of

Emotional

Distress,

Negligent Infliction of Emotional Distress, Deprivation of Privacy,
Assault and Battery, and Loss of Consortium). (ECF No. 72).
Both parties filed appeals (ECF Nos. 74, 80). While the
appeals were pending, the Plaintiffs once again terminated the
services of their counsel and continued to proceed pro se. (ECF
Nos. 87, 94). The Plaintiffs’ appeal was subsequently dismissed for
lack of jurisdiction (ECF No. 89). Because the Plaintiffs, who are
not attorneys, could not represent the interests of their minor
child, the case as to the minor Plaintiff, A.B., was dismissed as
well (ECF No. 99).
Subsequently, the First Circuit Court of Appeals concluded
that summary judgment shall enter in the Defendants’ favor as to

2

Counts

I,

Distress,

II,

and

III

Negligent

(Intentional

Infliction

of

Infliction
Emotional

of

Emotional

Distress,

and

Deprivation of Privacy) and remanded the case to this Court for
further proceedings as to the assault and battery claim and the
related loss-of-consortium claim)(ECF No. 112).
The matter now before the Court is a determination on Gregg
Bogosian’s claim of assault and battery based on allegations of
excessive force, when considered in the context of the Defendants’
qualified immunity defense, as well as the related claim of loss of
consortium asserted by Thadosha Bogosian.
I.

Summary of Facts1
The background against which the events leading to this

litigation occurred are, for the most part, undisputed. The T.F.
Green

Airport

is

operated

by

Defendant

Rhode

Island

Airport

Corporation (“RIAC”), a quasi-governmental entity. SUF ¶1. The
Rhode Island Airport Police, a department of RIAC, is a police
force with the same powers as any Rhode Island municipal police
agency. SUF ¶2. RIAC police officers, who wear standard police
uniforms with badges, patches, and equipment, and who drive police
SUVs marked “POLICE” equipped with standard police lights, are
empowered to enforce traffic laws on Airport property, investigate

1

The summary of facts is based primarily on the Defendants’
Statement of Undisputed Facts (“SUF”), to the extent the Plaintiffs
have not raised relevant objections thereto.
3

crimes, detain suspects, and make arrests. SUF ¶¶3,4. RIAC officers
are responsible for ensuring that drivers abide by all traffic
signs and regulations on airport property, and they have the right
to request a driver’s license and registration. SUF ¶¶5, 6.
The Airport has its own Homeland Security-mandated security
plan, for which RIAC Airport Police must ensure compliance. SUF ¶8.
Since the 9/11 attacks in 2001, the Airport property remains a
sensitive security area. SUF ¶7. To ensure the continuing security
and safety of the public and overall management of the Airport
roadways, there are strict traffic control requirements, especially
in the upper level Departures area and the lower level Arrivals
area,

that

prohibit

any

vehicles

from

parking,

waiting,

or

otherwise standing at the terminals. SUF ¶10.
Following September 11, 2001, the FAA also implemented a rule
that cars cannot be parked within 300 feet of a terminal building.
SUF ¶11. To advise drivers that travel lanes adjacent to the
terminal building are only for active loading and unloading of
passengers and baggage, there are multiple signs in both Arrivals
and Departures roadways. SUF ¶12. The signs inform drivers that
they cannot park or wait for passengers in those areas. SUF ¶13.
According to the Defendants, “[e]ven where a handicap sign
exists

in

the

Arrivals

and

Departure

roadways,

there

is

no

stopping, parking or waiting; rather, a vehicle with a handicap
placard can only actively load or unload passengers or baggage.”

4

SUF ¶14. In response, the Plaintiffs have argued that “in essence,
whatever the meaning of the handicap sign, it is not enforced by
Officer Reis in his experience.” Statement of Disputed Facts ¶14
(ECF No. 59). Nothing in their response, however, indicates the
Plaintiffs’ understanding that vehicles with a handicap placard may
use the marked area for anything but active loading and unloading.
Id.
On July 31, 2012, Bogosian drove his wife Thadosha, their
child, and his mother-in-law to the Airport to drop off his motherin-law for a flight. SUF ¶16. As Bogosian acknowledged during his
deposition, he was aware at that time that the Airport was a
sensitive security area, that security was a priority at the
Airport, and that he had to abide by Airport traffic signs. SUF
¶17, 18, 22. After dropping off his family, Bogosian went to a
nearby coffee shop and then returned to the Departures area to pick
up his wife and child. SUF ¶19. Bogosian parked at the far end of
the Departures roadway. SUF ¶20. Bogosian maintains that there were
no signs in front of the terminal where he waited for his wife and
child, he also insists that they were walking through the terminal
doors and toward the exit as he was parked. SDF ¶¶21, 23-25.
Bogosian does not deny, however, that at the time he stopped, he
was alone in the car, waiting for his wife; nor does he assert that
passengers were getting in or out of his car or that he was in the
process of unloading or loading baggage. SUF ¶¶23, 24. On their

5

part, the Defendants maintain that there were multiple signs along
the roadway, including the area where Bogosian had stopped his car.
SUF ¶21.
While Bogosian was stopped, RIAC Police Officer Steven Reis
(“Officer Reis”), wearing a full police uniform and driving an SUV
marked “POLICE,” approached Bogosian’s car and determined that
Bogosian had violated Rhode Island law prohibiting stopping in a
tow zone and parking and waiting while not actively loading or
unloading. SUF ¶¶26, 27. According to Bogosian, he did not realize
that Officer Reis was a police officer and also did not notice that
the SUV was marked “POLICE.” SDF ¶26.
Although Bogosian takes issue with some of the details of the
facts presented by the Defendants, it is undisputed that Bogosian
did not move his car when he was repeatedly asked to do so , SUF
¶¶30, 32, and that Bogosian, after some interaction with Officer
Reis,2 then drove to the lower level Arrivals area, where he
stopped in an area with signs designated for drivers with handicap
placards to actively load and unload. SUF ¶38. Bogosian does not
deny that, in addition to the other signage in the area, there was
a bright orange sandwich board in the approach to the handicap area
that stated: “No Waiting, Active Loading Only, $85 fine;” he does

2

According to Bogosian, in response to Officer Reis “flipping
him off” in his car, Bogosian gave Officer Reis the finger and then
shouted “No, you go F yourself.” SUF ¶37.

6

insist, however, that he does not recall seeing the board on the
day in question. SDF ¶¶41-42. And, although Bogosian admits to
seeing a handicap sign, he maintains that he does not recall the
sign located within sight of where he stopped his car, which
indicated: “No Waiting, Active Loading and Unloading of Passengers
Only”. SUF ¶47, SDF ¶47.
Further, it is undisputed that, as when Bogosian was stopped
in the Departures area earlier on, no passengers were getting in or
out of Bogosian’s car while he was stopped in the Arrivals area,
nor was he loading or unloading baggage.

SUF ¶52. As supported by

video of the incident, at the time Bogosian was stopped, the
Arrivals area was busy with traffic and pedestrians and in the area
of the handicap sign there were at least five people, some with
baggage, including a passenger in a wheelchair with a prosthetic
leg. SUF ¶¶44-46.
Officer Reis approached Bogosian’s car for a second time,
knocked on the car window and, when there was no response, opened
the car door and asked Bogosian for his license and registration.
SUF ¶58. Bogosian concedes that police officers have a right to ask
a motorist for license and registration, and that he must obey
specific instructions from police officers even if he disagrees
with them. SUF ¶62. Although Bogosian maintains that he was not
given sufficient time to comply with Officer Reis’s instructions,
it is undisputed that Bogosian never identified himself and that he

7

did not provide his license and registration, nor did he put his
vehicle in park as instructed. SUF ¶65. Instead, Bogosian stated to
Officer Reis that he had “every right to be here” and that he had
a handicap placard. SUF ¶67.
Officer Reis then called for Sergeant Hall, his supervisor,
who

also

requested

registration.

that

Bogosian

produce

his

license

and

Instead of complying with this request, Bogosian

called 911 and asked to be connected to the Superintendent of the
Rhode Island State Police because he felt he was being “harassed”
at the Airport. SUF ¶78. Eventually, Bogosian was placed under
arrest and charged with obstruction of justice in violation of R.I.
Gen. Laws §11-32-1 and disorderly conduct in violation of R.I. Gen.
Laws §11-45-1; he also received a traffic ticket for parking in a
no parking zone and for failure to wear a seatbelt. SUF ¶¶108-110.
Bogosian was held in RIAC police custody for three hours and then
released. SUF ¶111. The criminal charges against Bogosian were
eventually dismissed by the Attorney General. SUF ¶117. The traffic
violations were dismissed based upon Bogosian’s good driving record
and payment of court costs. ¶118.
II.

Standard of Review
Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”

Fed. R. Civ. P.

56(a). “A dispute is genuine if the evidence about the fact is such

8

that a reasonable jury could resolve the point in the favor of the
non-moving party.”

Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir.

2008) (internal quotation marks and citations omitted). “A fact is
material if it has the potential of determining the outcome of the
litigation.”

Id. (quoting Maymi v. Puerto Rico Ports Auth., 515

F.3d 20, 25 (1st Cir. 2008).
The

party

establishing

seeking

the

lack

summary
of

a

judgment

genuine

bears

issue

of

the

burden

material

of

fact.

Merchants Ins. Co. of New Hampshire, Inc. v. U.S. Fidelity and
Guar. Co., 143 F.3d 5, 7 (1st Cir. 1998). “Once such a showing is
made, ‘the burden shifts to the nonmoving party, who must, with
respect to each issue on which [it] would bear the burden of proof
at trial, demonstrate that a trier of fact could reasonably resolve
that issue in [its] favor.’” Flovac, Inc. v. Airvac, Inc., 817
F.3d849, 853 (1st Cir. 2016) (quoting Borges ex rel. S.M.B.W. v.
Serrano–Isern, 605 F.3d 1, 5 (1st Cir.2010)).
The Court, in considering a motion for summary judgment,
“read[s] the record in the light most favorable to the non-moving
party, drawing all reasonable inferences in its favor.”

Merchants

Ins. Co. of New Hampshire, Inc. v. U.S. Fidelity and Guar. Co., 143
F.3d at 7 (citing Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6
(1st Cir. 1997)).
III. Discussion
In the Complaint, the Plaintiffs allege that RIAC police

9

officers “without forewarning and wrongfully and intentionally
committed assault and battery on [Bogosian] by dragging him out of
his vehicle and through the airport without his consent.” Complaint
¶34. On their part, the Defendants have asserted a defense based on
the doctrine of qualified immunity. Defs.’ Mot. Sum. Judg. at 43
(ECF No. 33).
Under Rhode Island law, “[a]ssault has been defined as a
‘physical act of a threatening nature or an offer of corporal
injury which puts an individual in reasonable fear of imminent
bodily

harm,’•and

the

apprehension

of

injury

renders

the

defendant's act compensable.” Broadley v. State, 939 A.2d 1016,
1021 (R.I.2008) (quoting Hennessey v. Pyne, 694 A.2d 691, 696
(R.I.1997)). Battery is defined as “‘an act that was intended to
cause, and does cause, an offensive contact with or unconsented
touching of or trauma upon the body of another, thereby generally
resulting in the consummation of the assault.’” Broadly v. State,
939

at

1021

(quoting

Fenwick

v.

Oberman,

847

A.2d

852,

855

(R.I.2004)).
Defendants, however, in their role as police officers, are
“privileged to use as much force as necessary to effectuate [an]
arrest.” Ferreira v. City of Providence, 568 F. Supp. 2d 197, 208
(R.I. 2008). This privilege “protects the officers unless and until
their actions rise to the level of excessive or injustified force.”
Id.; (citing Rose v. Town of Concord, 971 F.Supp. 47, 51 (D. Mass

10

1997)(“Police officers are privileged to commit a battery pursuant
to a lawful arrest, but the privilege is negated by the use of
excessive force.”)).
In order to establish a claim of excessive force, a plaintiff
is required to show “‘(1) significant injury, which (2) resulted
directly and only from the use of force that was clearly excessive
to the need; and the excessiveness of which was (3) objectively
unreasonable.’” Ferreira v. City of East Providence, 568 F.Supp.2d
at

207

(quoting

Reese

v.

Anderson,

926

F.2d

494,

500

(5th

Cir.1991)).
The undisputed facts regarding Bogosian’s claim of excessive
force are

limited

to

the

described

events

as

follows.

After

Bogosian was told that he was under arrest, Sergeant Hall attempted
to remove Bogosian from his car by using a standard “escort” or
“arm bar” hold. SUF ¶88. Bogosian’s version merely characterizes
the hold as “forceful;” he concedes, however, that instead of
complying with repeated requests for his license and registration
and for him to exit the vehicle, he was making a 911 call. Bogosian
also suggests that, had he been given more time, he could have
stepped out voluntarily. SDF ¶¶87, 88. Eventually, Bogosian did
step out of the car, after claiming that the police officers’
attempts to extract him from his car were “harming” him. SUF ¶91,
SDF ¶91.
Now under arrest, Bogosian still did not identify himself, nor

11

did he offer to produce his license or registration at that time.
SUF ¶¶92, 93. Officer Reis then patted Bogosian down and conducted
a brief check of the passenger compartment of Bogosian’s car. SUF
¶94. As Bogosian concedes, the officers never hit, punched or
slapped him or touched him in any similar way, SUF ¶95; he insists,
however,

that

he

“was

put

in

multiple

holds

and

was

pulled

forcefully during the course of his arrest.” SDF ¶95. Bogosian
offers

the

same

statement

in

response

to

the

Defendants’

representation that Officer Kingston, who was assisting in the
arrest, took Bogosian by the forearm to keep him under control
(Bogosian was yelling at that time), and that Officer Kingston
brought Bogosian through the terminal to the police station at the
back of the airport. SUF ¶¶96-98, SDF ¶97-98.

Although Bogosian

insists that the officers forced him to move quickly, he does not
deny that he used his body to stop both officers in their tracks.
SUF ¶99, SDF ¶99.
Within five and a half minutes of delivering Bogosian to the
police station, Officer Kingston returned to

his traffic duties and

had no further interaction with Bogosian. SUF ¶¶100-102. Sergeant
Hall also had no further interaction with Bogosian.3 SUF ¶107.

3

In response to this undisputed statement, Bogosian suggests
that “one of the officers” denied his request for an attorney and
that Officer Reis made a lewd remark regarding Bogosian’s wife. SDF
¶107.

12

Bogosian was released three hours after his arrest; he did not
go to the hospital as a result of the incident; and the next day he
went back

to

caring

full-time

for

his child.

SUF

¶¶111-113.

Although Bogosian asserts that he sought care from his primary care
physician as a result of these alleged injuries, it is undisputed
that the first time Bogosian saw his own doctor was six weeks after
the incident.

SDF

¶113,

SUF

¶114. According to

Bogosian,

he

requested an ambulance after his arrest but, after being informed
that he would have to be taken to the ACI overnight if he opted to
take an ambulance, he signed a form refusing medical treatment. SDF
¶115. Bogosian also alleges that he sustained a laceration to his
hand, bruising on his arms and right shoulder, and fingerprint
impressions on his arms; he does not dispute, however, that he
never obtained treatment for these alleged injuries. SDF ¶115, SUF
¶115.
None of the undisputed facts of this case support Bogosian’s
contention

that

the

Defendants

used

excessive

force

when

effectuating his arrest. Bogosian twice stopped his car in a
restricted area without loading or unloading any luggage and
without any passengers entering or exiting his car. On the lower
level Arrivals area, Bogosian placed his car directly behind a
clearly marked police car, again neither loading nor unloading or
letting any passengers in or out of his car. As verified by the
surveillance video, Bogosian’s car was stopped in front of several

13

other passengers, including one with a leg cast, who appeared to be
waiting to be picked up. Immediately before Officer Reis (in full
uniform) approached Bogosian’s car, one of the waiting passengers
is seen hailing his ride and eventually getting into a car after
having to walk into the street and cross in front of Bogosian’s
car, which was blocking direct access to the sidewalk. Bogosian’s
family is not seen approaching the car for about two minutes, at
which point Officer Reis had already opened the driver’s side car
door and asked Bogosian for his license and registration.
By his own admission, Bogosian failed to identify himself or
to provide the requested identification documents; instead, he
dialed 911 and asked to be put through to the Superintendent of
State Police. Although Bogosian insists that, had he been given
more

time,

he

would

have

eventually

complied

with

the

RIAC

officers’ requests, he does concede that he never did so, even
after he exited the car. At some point, Officer Reis and Sergeant
Hall can be seen reaching into the car; however, as Bogosian
concedes,

he

eventually

stepped

out

of

the

car

voluntarily,

claiming that their efforts to extract him from his car had
“harmed” him. Bogosian’s claim of excessive force is essentially
limited to allegations that he was placed in “multiple holds,” and
that he was “pulled forcefully.” There are no allegations, however,
that he was hit, punched, or slapped, or touched in any similar way
and Bogosian does not dispute that he used his body to slow the

14

officers down while they were transporting him to the police
station. Finally, while Bogosian claims to have suffered injuries
as a result of his arrest, he did not see his physician until six
weeks after the incident and apparently did not require any medical
treatment at all.
As

previously

determined

by

this

Court on May

8, 2016,

Bogosian’s refusal to leave the restricted area and his subsequent
refusal to produce his license and registration were in clear
violation of Rhode Island law and the RIAC officers had probable
cause before taking Bogosian into custody. The undisputed facts of
the events leading to his arrest and his conduct during the arrest
also support the Defendants’ contention that Bogosian was the type
of “recalcitrant” individual who required the use of “some force”
to allow them to do their job. See, e.g. Cruz v. Town of N.
Providence, 833 A.2d 1237, 1240 (R.I. 2003).
In sum, there is no evidence that the force used by the RIAC
police

officers

transport
Bogosian

to

effectuate

was excessive
has

not

or

submitted

Bogosian’s

objectively
evidence

arrest

and

unreasonable.

that

would

related
Morever,

support

his

contention that he suffered significant injury as a result of such
force. Accordingly, Bogosian’s claim of assault and battery cannot
withstand the Defendants’ motion for summary judgment.
Because Bogosian’s claim of assault and battery must be
dismissed, Mrs. Bogosian’s claim of loss of consortium, which is

15

derivative of her husband’s claim of assault and battery, must be
dismissed as well.
Conclusion
For the reasons stated herein, the Defendants’ motion for
summary judgment on the claims of assault and battery (Count IV)
and the related claim of loss of consortium (Count VII) is GRANTED.
Because this Court has determined that the Defendant RIAC police
officers are not liable to the Plaintiffs, the claim for negligent
training and supervision against RIAC (Count VIII) must also be
dismissed. The Clerk is directed to enter judgment in this case for
the Defendants.

SO ORDERED.
/s/ Mary M. Lisi
Senior United States District Judge
April 27, 2017

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