MARCH v. FREY

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

ANDREW MARCH, )

)

Plaintiff, )

)

v. ) Docket No. 2:15-cv-515-NT

)

AARON M. FREY, et al., )

)

Defendants. )

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Plaintiff Andrew March is a protester who opposes abortion. He alleges that a

provision of the Maine Civil Rights Act has been applied unconstitutionally against

him, in violation of his First and Fourteenth Amendment rights. Before me are

motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 from

Defendant Aaron Frey (the “Attorney General”) (ECF No. 162) and Defendant City

of Portland (“Portland” or “the City”) (ECF No. 163), and a motion for partial

summary judgment from Mr. March against the City (ECF No. 165). For the reasons

set out below, the Attorney General’s motion and the City’s motion are GRANTED,

and Mr. March’s motion is DENIED.

BACKGROUND

I. Factual Background1

A. Increasing Noise Complaints and the Portland Police

Department Response

Planned Parenthood operates a facility at 443 Congress Street in Portland,

Maine (the “Health Center”), where it provides counseling and health care services,

1 Because I ultimately conclude that the Defendants prevail on their motions and the Plaintiff

does not prevail on his, the following background is drawn from the undisputed facts set out in the

parties’ statements of facts, the disputed facts reasonably resolved in the Plaintiff’s favor, and the

exhibits contained in the Joint Stipulated Record. I rely heavily on the numerous videotapes of Mr.

March’s encounters with the police rather than the parties’ characterization of those tapes. See

Mitchell v. Miller, 56 F. Supp. 3d 57, 58 n.1 (D. Me. 2014) (citing Scott v. Harris, 550 U.S. 372, 380–81

(2007)) (inferences that can reasonably be drawn in a non-moving party’s favor can be limited by

existence of video evidence).

For the universe of facts, see Plaintiff’s Statement of Material Facts in Response to Defendant

Attorney General Aaron M. Frey’s Motion for Summary Judgment (ECF No. 170) (containing all facts

in support of Attorney General’s motion for summary judgment and Plaintiff’s responses thereto)

(“AG’s Mot. Facts”); Plaintiff’s Statement of Material Facts in Response to Defendant City of

Portland’s Statement of Material Facts in Support of its Motion for Summary Judgment (ECF No. 172)

(containing all facts in support of City’s motion for summary judgment and Plaintiff’s responses

thereto) (“City’s Mot. Facts”); Defendant City of Portland’s Response to Plaintiff’s Statement of

Material Facts and Defendant City of Portland’s Statement of Additional Facts and Plaintiff’s

Statement of Additional Material Facts in Reply to Defendant City of Portland’s Opposing Statement

of Material Facts (ECF Nos. 175 and 179) (containing all facts in support of Plaintiff’s motion for

summary judgment, additional facts provided by City, and all responses thereto) (collectively “Pl.’s

Mot. Facts”); and the Joint Stipulated Record (ECF No. 148) (“JSR”).

In accordance with Local Rule 56, all properly supported statements of fact to which there is

not a properly supported denial or qualification are deemed admitted. D. Me. Loc. R. 56(b)–(f). In many

instances, the Plaintiff has attempted to qualify the Defendants’ facts by repeating “Plaintiff does not

have any evidence to dispute the assertion contained in paragraph [x]; however, Plaintiff has never

been provided any evidence to corroborate this assertion and was not able to locate any such evidence

on his own.” See, e.g., City’s Mot. Facts ¶¶ 8–10, 17, 30, 31, 42, 44, 45, 48; see also AG’s Mot. Facts ¶¶

8–13, 15, 19, 20. These qualifications are ineffective. If the Plaintiff does not have evidence to dispute

a properly supported fact, then that fact is deemed admitted. See Mullen v. New Balance Athletics,

Inc., No. 1:17-cv-194-NT, 2019 WL 958370, at *1 n.1 (D. Me. Feb. 27, 2019) (plaintiff’s supported facts

are deemed admitted where defendant attempted to qualify facts by asserting that it had “no

knowledge” of the fact asserted).

Similarly, the Plaintiff repeats in many instances that he “is unable to answer paragraph [x]

pursuant to Local Rule 56(c) because it is not a statement of fact.” See, e.g., City’s Mot. Facts ¶¶ 7, 11–

14, 16, 20, 35, 39, 43, 46, 47, 49, 52. In each of these instances, the Defendant has set out a discrete

fact. Because the Plaintiff’s “cut and paste” response does not point to any dispute in the record or

contain any cogent argument, this factual assertion, and the other factual assertions to which Plaintiff

responded similarly, are deemed admitted.

Finally, the City asserted seventy-two facts to support its motion for summary judgment, and

it asserted those identical seventy-two facts as additional facts in response to the Plaintiff’s motion.

That would ordinarily not be a problem, but the Plaintiff’s responses differed for twenty-three of the

including abortions. Pl.’s Mot. Facts ¶¶ 12–13. The Health Center is located on the

second floor, and its windows overlook the sidewalk below. City’s Mot. Facts ¶¶ 41–

42; JSR Exs. 1, 6.2 Congress Street is a busy street with lots of traffic and noise. Pl.’s

Mot. Facts ¶ 62. Monument Square, a public area that sometimes hosts events with

amplified noise, is located nearby, and the portion of Congress Street where the

Health Center is located sometimes sees parades and protests. Pl.’s Mot Facts ¶¶ 63–

66.

The Portland Police Department began receiving increased complaints around

February of 2013 about noise created by protesters outside of the Health Center. Pl.’s

Mot. Facts ¶ 14. On February 18, 2013, Portland Police Department Chief Michael

Sauschuck wrote a letter to his officers on the topic of sidewalk protests in front of

the Health Center, and he called their attention “to the Maine Civil Rights Act

prohibition against creating noise that can be heard within the building where health

seventy-two facts. For example, the Plaintiff admitted City’s Motion Facts ¶¶ 4, 6, 18, 19, 21, 22, 24,

32–34, 36–38, and 41, but when those identical facts were asserted as additional facts in response to

the Plaintiff’s motion, the Plaintiff either offered a qualification or claimed that the assertion was not

a fact. See Pl.’s Mot. Facts ¶¶ 74, 76, 88, 89, 91, 92, 94, 102–04, 106–08, and 111. Similarly, where the

Plaintiff stated that ¶¶ 7, 11, 14, 16, 43, 49, and 52 were not statements of fact in his response to the

City’s Motion Facts, he qualified those identical facts in Plaintiff Motion Facts ¶¶ 77, 81, 84, 86, 113,

119, and 122. Lastly, although the Plaintiff qualified ¶ 30 and denied ¶ 67 of the facts submitted in

support of the City’s motion, he admitted those same facts when they were submitted as additional

facts in response to his motion. See Pl.’s Mot. Facts ¶¶ 100, 137. While I am required to resolve facts

that the parties dispute in favor of the non-moving party, there is no such parallel rule when the

Plaintiff has contradicted himself. Thus, whenever the Plaintiff has somewhere admitted a fact

asserted by the City, I accept it as undisputed.

2 Exhibit 1 of the Joint Stipulated Record is a video of an individual (not the Plaintiff) who is

preaching up toward the windows of the Health Center. In it, the protester comments that he knows

that they can hear him and that he has seen them draw the curtain. Exhibit 6 of the Joint Stipulated

Record is a video of an exchange between Lt. Preis of the Portland Police Department and Mr. March.

The angle from which the video is taken shows the Health Center building in the background, and the

second-floor windows are visible. The videotapes show that the windows of the Health Center are

directly above the protesters.

services are being provided.” Pl.’s Mot. Facts ¶ 16.3 Attached to the letter was a

document containing synopses of “[p]ossible criminal offenses,” including the state’s

disorderly conduct, harassment, and obstructing public ways laws, and “[p]ossible

civil offenses,” including the state’s civil disorderly conduct provision and the Maine

Civil Rights Act. JSR Ex. 19 at 4–6 (ECF No. 148-19). On July 28, 2015, an updated

version of Chief Sauschuck’s February 2013 letter and statute summary was

recirculated by Richard Bianculli, the Portland Police Department’s Neighborhood

Prosecutor. JSR Ex. 19 at 8–9.4

3 The body of the letter states in full:

This letter addresses the ongoing protests taking place in front of 443 Congress Street.

The goal of the Portland Police Department is to ensure that pedestrians and workers

enjoy safe and unimpeded access to this building, while respecting the first amendment

rights of all citizens.

As you know, the Portland Police have been present at most of the protests, and have

consistently ensured adherence to state and local laws related to disorderly behaviors

and sidewalk obstruction. Please see the attached synopsis of those laws and

regulations.

In recent weeks we have received an increase in complaints regarding the noise created

by the protesters. Accordingly, I wish to draw your attention to the Maine Civil Rights

Act prohibition against creating noise that can be heard within the building where

health services are being provided (see page 2 of the attached list). Please understand

that any future violations of this law will be referred to the Attorney General’s office

for prosecution.

If you have any questions or would like to meet to discuss these issues, please feel free

to contact Trish McAllister, the Police Department’s Neighborhood Prosecutor, at 756-

****.

JSR Ex. 19 at 4–6 (ECF No. 148-19).

4 The recirculated letter by Chief Sauschuck was dated July 28, 2015, and contained the contact

information for Mr. Bianculli, but it was otherwise identical to Chief Sauschuck’s February 2013 letter.

In his cover email, Mr. Bianculli states:

Please note that it is a violation of the Maine Civil Rights Act

(http://legislature.maine.gov/statutes/5/title5sec4684-B.html) for protestors to protest

loudly to the point where their voices can be heard within the counseling rooms for

Planned Parenthood. If you are responding to this type of situation, a citation can be

The Maine Civil Rights Act (“MCRA”) was enacted in 1989. In broad strokes,

it authorizes suit by the Attorney General or any aggrieved person against any person

who, “whether or not acting under color of law, intentionally interferes or attempts

to intentionally interfere . . . with the exercise or enjoyment by any other person” of

rights secured by the United States or Maine Constitutions or federal or state laws.

5 M.R.S.A. §§ 4681–4682. In 1995, the Legislature enacted an amendment that made

it a violation of the MCRA to interfere or attempt to interfere with a person’s civil

rights by: (1) physically obstructing the entrance or exit of a building; (2) making

repeated telephone calls to disrupt activities in a building; (3) setting off any device

that releases “noxious and offensive odors” within a building; or (4) making noise that

can be heard within a building, after having been ordered by law enforcement to stop,

with the intent to interfere with the delivery of health services inside. 5 M.R.S.A.

§ 4684-B(2). Specifically, the MCRA’s noise provision prohibits an individual from,

[a]fter having been ordered by a law enforcement officer to cease such

noise, intentionally making noise that can be heard within a building

and with the further intent either:

(1) To jeopardize the health of persons receiving health services within

the building; or

(2) To interfere with the safe and effective delivery of those services

within the building.

5 M.R.S.A. § 4684-B(2)(D) (the “Noise Provision”).

issued if the individual refuses to follow your directive after a verbal warning. Please

feel free to contact me directly if you ever have any questions in regard to this issue.

JSR Ex. 19 at 8.

At times pertinent to this action, Planned Parenthood paid the City to have

Portland police officers work an overtime detail in front of the Health Center during

times when protesters were present. Pl.’s Mot. Facts ¶ 26; JSR Ex. 19 at 7. On July

9, 2014, Lt. Glen McGary of the Portland Police Department sent an email to the

“PPD Shift Log” regarding the expectations for officers participating in the “Planned

Parenthood Detail.” Pl.’s Mot. Facts ¶ 21.5

5 The body of the email states:

PLANNED PARENTHOOD DETAIL

The outside detail at Planned Parenthood is at 443 Congress St., the detail runs on

Friday’s [sic] from 0800-1200.

— If you take the job please check with staff at the start of the job and before securing

as the job may go longer as dictated by the protesters.

— The officer will be in the entry way [sic] of 443 Congress St.

— The detail officer will maintain a high level of visibility, be proactive in preventing

potential confrontations, address any violations of state statutes (i.e. obstructing a

public way, assault, etc.), and be mindful of 1st Amendment rights of the

protesters. Protesters cannot block the doorways to the adjacent businesses.

— Take a cruiser, park it in front of the entrance (or as close as possible), make sure

the camera is recording and pointed at the entrance to 443 Congress St., make sure

you have the microphone with you and activate it when protesters are present.

— The officer needs to keep a count of the number of protestors at 0800, 0900, 1100,

and 1200 (please email the numbers to Sgt. Hutchings in groupwise). Also if there

is any sort of confrontation/disturbance please note that and put it in the email.

— If there are any complaints from protesters, workers or patrons, the detail officer

will request a Supervisor and the Shift Commander will be notified as well.

Neighborhood Prosecutor Trish McAllister will be available if there is a legal

question.

— The beat officers should also give SA to the area on Friday’s [sic].

— At the beginning of shift, an A-Team officer will put out an EMERGENCY NO

PARKING sign, , [sic] on the spot where the cruiser will park to video the entrance.

On occasions, protesters will be present on Saturday morning. The beat officer at that

time will take hourly head counts and report this Information to Sgt. Hutchings via

email.

B. The Plaintiff’s Protest Activities and the Portland Police

Department’s Interactions with Him

Mr. March believes he has been called by God to actively oppose abortion. AG’s

Mot. Facts ¶ 1 (ECF No. 170). He regularly voiced his opposition to abortion outside

of the Health Center by preaching, praying, spreading pro-life messages, and

communicating or attempting to communicate with women to dissuade them from

receiving abortion services. Pl.’s Mot. Facts ¶ 120. The record reflects that Health

Center staff complained to the Portland Police Department about Mr. March on four

occasions: November 6, 2015, November 13, 2015, December 4, 2015, and December

11, 2015. The present litigation stems from the three separate interactions between

Mr. March and Portland police officers occurring on November 6, 2015, December 4,

2015, and December 11, 2015. Pl.’s Mot. Facts ¶ 71.

1. The November 6, 2015 Encounter

On November 6, 2015, Mr. March was on the sidewalk in front of the Health

Center. Pl.’s Mot. Facts ¶ 72. Portland Police Officer Jason Nadeau received a report

from dispatch of a complaint from someone at the Health Center that there was a

person outside making noise at a volume that was interfering with the provision of

medical services. City’s Mot. Facts ¶¶ 5–6. When Officer Nadeau arrived at the

Health Center, there was a male speaking loudly enough that Officer Nadeau could

Doran Lovell is an onsite employee and her contact number is 797-**** ext. *.

Thank You

JSR Ex. 19 at 7.

hear him from a distance of about a half city block to a full city block. Pl.’s Mot. Facts

¶ 79.

Officer Nadeau approached the male, later identified as Mr. March, and much

of the encounter was captured on video. JSR Exs. 3 and 4.6 The encounter can best

be described as a conversation between Officer Nadeau and Mr. March. The tone was

civil on both sides. Officer Nadeau spoke softly, and others in the area occasionally

chimed in. Mr. March spoke in a considerably louder voice than anyone else on the

recording, but he was not shouting. JSR Ex. 3.

The substance of the conversation can be summed up as follows.7 Officer

Nadeau informed Mr. March that officers had received a complaint that someone

could be heard within the building. Officer Nadeau suggested that Mr. March was

the individual who could be heard. Mr. March demurred. Officer Nadeau informed

Mr. March that he (Nadeau) heard him when he rolled up from “back there.” Mr.

March asked whether there was a noise ordinance. Officer Nadeau informed him that

there was. Mr. March asked Officer Nadeau to give him an objective volume that he

could speak at. Officer Nadeau asked Mr. March if he could bring hi] voice down so

that they could not hear him inside. Mr. March asked how he (March) would know

whether they could hear him from inside, and Officer Nadeau stated, “You can bring

6 Exhibits 3 and 4 are recordings of the same interaction taken from different angles.

7 A transcript is attached as Appendix A to this opinion. I have created this transcript and the

others contained in the appendices by transcribing the videotapes in the record. They are rough

transcripts intended to add clarity to the factual record for this Order. Throughout this Order,

quotations from the encounters between Mr. March and City police officers are drawn from these rough

transcripts and from the videotapes themselves.

it down from where you’re at right now or go from there.” Mr. March continued to ask

for an objective standard. Officer Nadeau then said:

Listen, I’m here for a noise complaint. . . . They say that they can hear

you. . . . I’m not trying to give you a hard time. I’m not trying to move

you guys out of here. I know you guys have to be here. . . . But when they

call in a complaint, I have to come talk to you.

Mr. March responded, “[G]ive me a way to continue to speak my convictions while

honoring what you’re saying.” Officer Nadeau said, “Just bring your voice down a

little. Can you do that?” Mr. March agreed to bring his voice down a little. But he

questioned whether the people inside the building could lie and say that they could

hear him even if he was just whispering, and Officer Nadeau acknowledged that they

could. Officer Nadeau ended the conversation shortly thereafter. JSR Exs. 3 and 4.

Shortly after this encounter, a discussion occurred between Officer Nadeau,

Sergeant Chuck Libby, and Major Donald Krier of the Portland Police Department,

and Major Krier determined that a warning under the Noise Provision of the MCRA

was appropriate. City’s Mot. Facts ¶¶ 15–16. Major Krier delivered the warning,

which was partially captured on video. JSR Ex. 7. The encounter was civil. The

substance of the conversation was as follows.8 Mr. March told Major Krier that Officer

Nadeau had not previously warned him and had only asked him for a favor. Mr.

March asked whether he was being officially warned by Major Krier. Major Krier

responded, “About noise, ya. All’s I’m doing is I’m letting you know what it’s all

about.” Major Krier provided Mr. March with a copy of the MCRA. Mr. March asked

8 A transcript is attached as Appendix B to this opinion.

for further explanation about the MCRA, and Major Krier indicated that the law was

self-explanatory and suggested that Mr. March consult a lawyer if he had any

questions.9

2. The November 13, 2015 Complaint

Portland Police Department records indicate that on November 13, 2015, Lt.

William Preis and Officer Argitis responded to complaints from Health Center staff

that they could hear protesters on the street below. JSR Ex. 19 at 14–16. The

narrative portion of the Police Report states:

Lt. W. Preis and I Ofc. D. Argitis responded to Planned Parenthood and

met with the following Staff: Alexandra Cousins, Meredith Healey, and

Nicole Clegg. These people forwarded the complaints to some degree on

behalf of non-present staff that they could hear the protestors on the

street below. Healey stated that she could identify via voice and sight

out the window one of the protestors complained of: a black male named

“Andrew March.” The parties indicated that while they could hear the

protest, none of them indicated how this awareness constituted an

interference with their delivery of healthcare services. Rather, they

indicated that hearing the ‘aggressive’ noise and sometimes the content

of the speech constituted a distraction and may have troubled

unidentified patients. Lt. Preis and I went to one of the exam rooms

where the alleged violation occurred and we could not hear any noise

from below. Apparently, the protestors had left the area by this time. Lt.

9 The Portland Police Department records contain the following summary of the response to the

Complaint from Planned Parenthood on November 6, 2015:

PROTESTERS ARE AUDIBLE IN THE HEALTH CENTER.

204 – upon arrival i was only able to hear one of the protestors, and his voice was above

normal talking. i spoke to this male about the complaint and asked him to quiet down,

and he did lower his voice. I did advise him that the complaint was that he could be

heard from inside. I asked this male for his name and he refused to identify himself.

Major Krier did arrive and provided this male with a copy of the Maine civil rights act

which served as his officail [sic] warning. I did speak to amy inside planned parenthood

and advised her of the police contact with the male. she was able to tell me that this

male’s first name was andrew. andrew is a black male with average height and build

about 40 years old.

JSR Ex. 19 at 13.

Preis provided Clegg information on the process of the complaints

alleged should they occur again. I also consulted with the police

neighborhood prosecutor on this matter. Lastly, I informed Clegg that

this matter would be documented in police records via this narrative.

JSR Ex. 19 at 14–16.

3. The December 4, 2015 Encounter

On December 4, 2015, Officer Graham Hults, after speaking with someone

from the Health Center, told Mr. March that he was being too loud. City’s Mot. Facts

¶¶ 23–24. Mr. March asked Officer Hults for a specific volume level, and Officer Hults

responded that he could not give Mr. March a specific level. City’s Mot. Facts ¶ 25.

At Mr. March’s request, Officer Hults asked a supervisor to come to the scene. City’s

Mot. Facts ¶ 26. Lt. Preis responded to the Health Center and met with Mr. March.

City’s Mot. Facts ¶ 29; Pl.’s Mot. Facts ¶ 100.

Lt. Preis had a cordial conversation with Mr. March, some of which was

captured on videotape. JSR Ex. 6. The substance of the conversation was as follows.10

Lt. Preis greeted Mr. March and asked if he had a question about the MCRA. Mr.

March explained that he wanted to know how loud he should speak so that he could

exercise his constitutional rights. Mr. March told Lt. Preis that a climate change

protest that had recently passed through had made more noise than he was making.

Lt. Preis told Mr. March that he (Preis) did not think he was being too loud, and Mr.

March indicated that he had not changed his volume at all. Lt. Preis then told Mr.

March:

10 A transcript is attached as Appendix C to this opinion.

[T]he Maine Civil Rights Act does talk about if they can articulate that

noise and specifically the type of speech and what’s being said is

interfering with a medical procedure, that’s where the problem could be

and that’s very gray. . . . I understand what you’re saying that you hear

other noise that’s louder and that may be. It’s not based on a decibel

level.

Mr. March responded: “So what you just said was the content of what I am saying is

really the problem.” Lt. Preis answered: “It’s a combination.” Lt. Preis recommended

to Mr. March that he reach out to the Attorney General’s office to try and work

something out. Mr. March told Lt. Preis that he intended to keep speaking, and Lt.

Preis responded, “Alright. I understand.” Lt. Preis did not issue a warning to Mr.

March. Pl.’s Mot. Facts ¶ 109.

4. The December 11, 2015 Encounter

On December 11, 2015, Portland Police Officer Graham Hults received a

complaint from someone at the Health Center that Mr. March was making noise at a

volume that was interfering with the provision of medical services on the second floor

of the Health Center building. Pl.’s Mot. Facts ¶¶ 110–11. Officer Hults went inside

to the second floor of the Health Center and could hear Mr. March. Pl.’s Mot. Facts

¶ 112.

Officer Hults had a conversation with Mr. March that was videotaped. JSR Ex.

5. Again, Mr. March was the loudest of any of the speakers on the video, and those

on the sidewalk around him could easily hear him. JSR Ex. 5. The substance of the

encounter was as follows.11 Officer Hults indicated to Mr. March, “You’re being heard

11 A transcript is attached as Appendix D to this opinion.

upstairs so they want you to quiet down a little.” Mr. March complained that his civil

rights were being infringed. Officer Hults stated repeatedly that he was only

concerned with Mr. March’s volume. Mr. March accused Officer Hults of violating his

civil rights, and Officer Hults repeatedly stated that he was just asking Mr. March to

quiet down.

Although Mr. March was louder than in the previous encounters, when Mr.

March asked, “Is there a definitive volume level that I can speak at?”, Officer Hults

replied, “Right now is fine.” Toward the end of the encounter, Officer Hults explained

that it was only a problem when Mr. March’s voice was so loud that it could be heard

from inside the building. Officer Hults clarified, “When I go upstairs, I can hear you.

That’s when it’s a problem. . . . People who have to move back because they’re having

an exam right in this other room, and they don’t feel comfortable because they can

hear you.” When Mr. March complained that Health Center staff “can constantly

come down here no matter what my tone is, right?”, Officer Hults responded, “If I go

up there and I can’t hear anything, I can say ‘you know what, I don’t see a problem

right here.’ ” JSR Ex. 5.

5. Since the December 11, 2015 Encounter

On January 6, 2016, Commander Gary Rogers emailed Planned Parenthood

OT Detail Instructions to officers assigned to the Planned Parenthood detail. The

Instruction sheet provides:

This is a list of the expectations and duties that are part of the Over

Time Detail at 443 Congress St., Planned Parenthood.

1. Always take a cruiser that has working audio and visual recording

capability.

2. Park the cruiser in such a manner that the front entrance to 443

Congress St. is visible on the camera. Have the camera recording

audio and visual for the entire time of the detail (the obvious

exceptions would be to turn off the audio for conversations not

related to the detail ie. phone calls)

3. Your primary role is to be highly visible at the entrance to PPH. You

are there to keep the peace, make sure that the sidewalk and

entrance to the building are accessible to all, and to make sure that

any protestors present are afforded their right to freedom of speech.

4. If you are notified by PPH staff that someone is so loud they are

interfering with the safe and effective delivery of health services you

will need to warn the person who is too loud and explain to them

what they are being warned for as well as the consequences for

continuing. (you do not need to be the one to hear if it is too loud

inside, if they say it is too loud that is good enough.) Notify the in-

town patrol sergeant of the complaint.

5. Once you have warned the person about being too loud you need to

document it in the CAD screen or have dispatch enter it. (You need

to enter the name of the person you warned and that you explained

what the warning was for as well as that you explained what

happens if it continues)

6. If that person continues to be loud and staff from PPH tells you that

they can still hear them from inside then notify the in-town patrol

sergeant. You will need to do a report and forward it to the AG’s

office. Best practice for officers is to take detailed reports from all

parties involved. While it is not necessary to obtain a detailed

statement from the victim (the patient), such a statement would

certainly be helpful. The patient’s name does not have to be released

(Jane Doe) if this is a concern. At a minimum, we should obtain a

detailed statement from the clinic staff person which indicates the

series of events and the notion that the protestor has interfered with

the safe and effective delivery of health services within the building.

The officer’s report should also confirm that the protestor was

previously ordered to cease the noise (date and time), and after such

warning, the protestor intentionally continued to make noise that

could be heard within the building with the intent to interfere with

the delivery of health services.

7. If you have any questions or issues please call for a Supervisor to

respond ASAP

8. At the end of the detail please forward the number of protestors and

if any counter protestors, as well as the name, date and time of

anyone who was warned for being too loud (or any other issues that

came up) to Sgt. Hutchings [email address].

9. The point of contact for PPH staff is Meredith Healey [phone

number]

JSR Ex. 22-A.

Between December 24, 2015, and April 29, 2016, Mr. March was outside the

Health Center protesting on at least twenty occasions. Pl.’s Mot. Facts ¶ 120. A video

taken on January 8, 2016, shows Mr. March speaking outside the Health Center. Pl.’s

Mot. Facts ¶ 121; JSR Ex. 2. Even with the typical street noise on Congress Street,

Mr. March could be clearly heard by those in his vicinity without having to yell or

raise his voice to a level that could be heard within the clinic. City’s Mot. Facts ¶ 52;

JSR Ex. 2. Mr. March has not protested outside of the Health Center since April of

2016, out of fear that his demonstrations will subject him to prosecution. Pl.’s Mot.

Facts ¶ 69.

No official or employee of the City of Portland has ever instructed Mr. March

to stop speaking based on the content of Mr. March’s speech, and no official or

employee of the City of Portland has ever ordered or instructed Mr. March to stop

speaking. Pl.’s Mot. Facts ¶¶ 137–38. Mr. March received one official warning under

the MCRA from Major Krier on November 6, 2015. JSR Ex. 7. Mr. March has never

been arrested or summonsed by an officer of the Portland Police Department for

violating the MCRA’s Noise Provision or for any other reason. Pl.’s Mot. Facts

¶¶ 139–40. Mr. March was never referred to the Attorney General for prosecution.

AG’s Mot. Facts ¶ 13.

Since 1995, the Attorney General has received only one referral involving a

potential violation of the Noise Provision, and it was a referral made by the Portland

Police Department about an individual named Brian Ingalls. AG’s Mot. Facts ¶¶ 11–

12. Other than the present lawsuit, Mr. March has never had any interactions with

the Attorney General’s Office, and the Attorney General has never brought a Noise

Provision enforcement action or threatened to bring such an action against Mr.

March. AG’s Mot. Facts ¶¶ 16–17.

II. Procedural History

Mr. March filed suit and moved for a preliminary injunction in December of

2015. Compl. (ECF No. 1); Mot. for Prelim. Inj. (ECF No. 4). He later filed an

Amended Complaint asserting that the Noise Provision of the MCRA, both facially

and as applied to him, violated his First Amendment rights and his Fourteenth

Amendment rights to equal protection and due process. First Am. Compl. (“Am.

Compl.”) (ECF No. 30). I granted the Plaintiff’s motion for a preliminary injunction

because I found that on its face the Noise Provision likely violated the First

Amendment. Order (ECF No. 71). The Attorney General appealed my decision, and

the First Circuit reversed, concluding that the Noise Provision was facially

constitutional and requiring me to consider Mr. March’s as-applied challenges. March

v. Mills, 867 F.3d 46 (1st Cir. 2017). I stayed the case while the Plaintiff sought

Supreme Court review, which was denied. (ECF Nos. 91–94.) Following ample time

for discovery, the parties filed the pending motions for summary judgment.12

12 The Plaintiff dismissed his claims against Portland Police Department officers William Preis,

Jason Nadeau, Donald Krier, and Graham Hults. See Stipulation for Order of Dismissal (ECF No.

159).

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute of

material fact and the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(a). A dispute is genuine where a reasonable jury could resolve the point

in favor of either party. Oahn Nguyen Chung v. StudentCity.com, Inc., 854 F.3d 97,

101 (1st Cir. 2017). A fact is material where it could influence the outcome of the

litigation. Id. On a motion for summary judgment, courts must construe the record in

the light most favorable to the non-movant and resolve all reasonable inferences in

the non-movant’s favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016). Nevertheless,

a court must “disregard ‘conclusory allegations, improbable inferences, and

unsupported speculation’ in determining whether a genuine factual dispute exists.”

Cherkaoui v. City of Quincy, 877 F.3d 14, 24 (1st Cir. 2017) (quoting Sullivan v. City

of Springfield, 561 F.3d 7, 14 (1st Cir. 2009)). In addition, the nonmovant “must

provide sufficiently supported evidence, without relying upon mere allegation or

denials of the movant’s pleading, to establish a genuine issue for trial.” Id. (internal

quotations and alteration omitted).

When faced with cross-motions for summary judgment, a court must “decide

each motion . . . on its own merits.” Wells Real Estate Inv. Trust II, Inc. v.

Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 51 (1st Cir. 2010). This means

“determin[ing] whether either of the parties deserves judgment as a matter of law on

facts that are not disputed.” Adria Int’l Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103,

107 (1st Cir. 2001). But each motion should not be considered in a vacuum. Wells Real

Estate, 615 F.3d at 51. Rather, a district court ordinarily should consider the motions

“at the same time, applying the same standards to each motion.” Id. (internal

quotations omitted); see also Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.

2003) (explaining that the summary judgment standard is “not altered by the

presence of cross-motions for summary judgment” because the court considers

distinctly each motion and draws inferences against each movant in turn).

DISCUSSION

The Plaintiff brings his claims against the City and the Attorney General

under 42 U.S.C. § 1983. Section 1983 provides a cause of action against state officials

who deprive, or cause another to deprive, an individual of rights protected by federal

law. “To prevail, a plaintiff must show that ‘the challenged conduct is attributable to

a person acting under color of state law’ and that ‘the conduct must have worked a

denial of rights secured by the Constitution or by federal law.’ ” Freeman v. Town of

Hudson, 714 F.3d 29, 37 (1st Cir. 2013) (alternation omitted) (quoting Soto v. Flores,

103 F.3d 1056, 1061 (1st Cir. 1997)).

To establish § 1983 liability against a municipality, a plaintiff must satisfy

“two basic elements: first, that plaintiff’s harm was caused by a constitutional

violation, and second, that the [municipality was] responsible for that violation.”

Young v. City of Providence, 404 F.3d 4, 25–26 (1st Cir. 2005). In showing that the

municipality was responsible, a plaintiff may not rely on respondeat superior to

establish municipal liability for the actions of city employees. Monell v. Dep’t. of Soc.

Servs., 436 U.S. 658, 694 (1978). Rather, a plaintiff must show that “[t]he alleged

municipal action at issue . . . constitute[s] a ‘policy or custom’ attributable to the City.”

Young, 404 F.3d at 26 (citations omitted).

In order for the Plaintiff to establish that either the Attorney General or the

City is liable, he must establish a harm caused by a constitutional violation.13 I begin

my analysis here. The Plaintiff contends that the Defendants have violated three of

his constitutional rights: his right to free speech, his right to equal protection of the

laws, and his right to due process. The Plaintiff’s first problem is that the record does

not support his claims of any such constitutional violations. His second problem is

that, even if he could show that his constitutional rights were violated, the Plaintiff

would have to show that the City and the Attorney General caused those rights to be

violated. I conclude that he has failed to do so.

I. Violation of Constitutional Rights

A. First Amendment Right to Free Speech

The Plaintiff contends that the Noise Provision, as applied to him, violates his

First Amendment right to free speech because it has been enforced based on the

content of his message and because it acts as an unconstitutional prior restraint on

his speech.

13 The issue of whether there has been a constitutional violation is distinct from the issue of

whether a plaintiff has standing. Although Mr. March has not been fined under the Noise Provision,

he has been warned under the statute and claims that his speech has been chilled. This seems

sufficient to establish his standing to bring his constitutional claims. Where he falls short is in

identifying facts showing that the City acted unconstitutionally in bringing about his alleged injury.

See McGuire v. Reilly, 386 F.3d 45, 59, 65 (1st Cir. 2004) (holding that protester had standing despite

lack of prosecution but ultimately concluding that his as-applied challenge failed because he produced

“no evidence that the police . . . enforced [the] statute in anything other than an evenhanded way”).

1. Viewpoint and Content Discrimination

Count I of the Amended Complaint asserts that the City has discriminated

against the Plaintiff based on his viewpoint and the content of his speech, thereby

violating his First Amendment rights. Am. Compl. ¶¶ 116–17; Pl.’s Mot. 10–11. I start

with the Complaint’s viewpoint discrimination claim.14 “The essence of a viewpoint

discrimination claim is that the government has preferred the message of one speaker

over another.” McGuire v. Reilly, 386 F.3d 45, 62 (1st Cir. 2004).

The First Circuit has already concluded that the Noise Provision here is

facially constitutional. Accordingly, Mr. March must proceed on a theory that the

Noise Provision was unconstitutionally applied to him.15 McGuire, 386 F.3d at 48

(after First Circuit rejected facial challenge to statute that prohibited people from

approaching, without permission, anyone within a zone around abortion clinics,

plaintiffs were left to pursue as-applied challenge that officers discriminated based

14 Mr. March’s briefing was frustratingly vague. For instance, he does not address viewpoint

discrimination anywhere in his motion or in his responses to the City or Attorney General’s motions.

He does not offer any analysis of whether there is a distinction between viewpoint-based and content-

based discrimination. He shifts between legal authorities and factual claims without offering any

analysis of how a particular legal doctrine applies to the facts of his case.

15 After McGuire was decided, Massachusetts amended its buffer-zone statute, replacing the six-

foot no-approach zones with a 35-foot fixed buffer zone from which individuals were categorically

excluded unless an exemption applied, such as the exemption for clinic employees acting within the

scope of their employment. The Supreme Court struck down this version as facially unconstitutional.

See McCullen v. Coakley, 573 U.S. 464 (2014). The Court held that, though the statute was content

and viewpoint neutral, it was not narrowly tailored to serve a significant government interest. The

Court also noted that the plaintiffs in McCullen “nowhere allege[d] selective enforcement” of the

statute. Id. at 484. Nevertheless, in dicta, the Court reasoned that, if clinic escorts were authorized to

speak about abortion within the buffer zone while non-escorts were not, the statute’s “exemption for

clinic employees would then facilitate speech on only one side of the abortion debate—a clear form of

viewpoint discrimination that would support an as-applied challenge to the buffer zone at that clinic.”

Id. at 485. But the Court then noted that the record “contain[ed] insufficient evidence to show that the

exemption operate[d] in this way at any of the clinics.” Id.

on viewpoint when enforcing the statute). The McGuire court explained that, in order

to prevail on the as-applied challenge for “viewpoint discriminatory enforcement,” a

plaintiff would need to proceed on a theory of selective enforcement and “would need

to show ‘a pattern of unlawful favoritism.’ ”16 Id. at 64 (quoting Thomas v. Chicago

Park Dist., 534 U.S. 316, 325 (2002)).

Here, however, Mr. March marshals no facts to show a pattern of unlawful

favoritism.17 Id. at 65 (concluding that plaintiffs were “stymied because there [was]

no evidence that the police turned a blind eye toward pro-abortion speech while not

turning a blind eye to possible transgressions by plaintiffs”). The facts here show that

the only complaints that the police received were complaints from the Health Center

about Mr. March. And, the police never acted unless they received a complaint. The

fact that the police took no action in response to a climate change protest does not

establish a pattern of unlawful favoritism because there is no evidence that the police

ever received a complaint about the climate protest interfering with the provision of

16 The buffer zone statute at issue in McGuire was held facially constitutional, despite the “fact

that one side of the abortion debate might suffer some incidental adverse effects or burdens,” because

the legislature’s motivations in passing the statute were content neutral. 386 F.3d at 63. The First

Circuit then reasoned that “some showing of intent on the part of government officials” was likely

required for an as-applied viewpoint discrimination claim too. Id. “Unless government actors were to

intentionally enforce the statute unequally, then any evidence of inequality that plaintiffs were to

show would merely indicate a ‘disproportionate burden’ that would not signify viewpoint

discrimination.” Id. (alterations omitted) (quoting McGuire v. Reilly, 260 F.3d 36, at 44 (1st Cir. 2001)).

Because the court found that the plaintiffs had failed to establish a pattern of unlawful favoritism, the

court sidestepped the question of whether the level of intent required for a viewpoint discrimination

claim under the First Amendment differed from the intent requirement for an equal protection claim

under the Fourteenth Amendment. Id.

17 The McGuire court also noted that a viewpoint discrimination claim can arise “when the state

decides whether or not to impose criminal penalties based on the viewpoint expressed by someone’s

words.” McGuire, 386 F.3d at 62. Mr. March develops no argument that the Defendants have

criminalized his viewpoint—nor could he, as the facts show that officers repeatedly told him he could

keep sharing his message.

health care services.18 Nor does it give any indication that officers were favoring

certain opinions on a topic over others. See id. at 62 (explaining that a viewpoint

discrimination claim can exist when the “government enforces the law against

persons of one viewpoint who violate the statute while not enforcing the law against

similarly situated persons of the opposing viewpoint who also violate the statute”).

Turning to content discrimination, when the First Circuit upheld the facial

constitutionality of the Noise Provision at issue here, it suggested that there could be

a successful as-applied challenge if the Noise Provision’s “disruptive-intent

requirement were enforced in an entirely content-dependent way.”19 March, 867 F.3d

at 61, 64 (concluding, however, that a health center’s complaint that a person’s noise

is interfering with the provision of health services is not a content-based restriction).

But even here Mr. March fails to present a cogent argument or offer facts establishing

or even suggesting that the statute was “enforced in an entirely content-dependent

18 Although the Plaintiff repeatedly suggests that Health Center staff only complained about pro-

life protestors and speculates that Health Center staff could lie about whether they could hear Mr.

March inside the building, he makes no attempt to explain how the Attorney General or the City could

be liable for the actions of private parties. “Only the Government can violate First Amendment rights.”

McGuire, 386 F.3d at 60. The Plaintiff has developed no argument that the Noise Provision or the

City’s policy somehow transformed Health Center staff into government actors subject to the First

Amendment.

19 Mr. March argues that the Noise Provision “is being used . . . to stifle the speech of pro-life

preachers [like March] who are preaching to the public and who have no intent to disrupt health

services.” Pl.’s Am. Opp’n City’s Mot. 10 (emphasis in original) (ECF No. 174). I note that neither the

City nor the Attorney General has issued a citation to Mr. March under the Noise Provision. Rather,

police officers appear to be enforcing the Noise Provision in just the way that the First Circuit

envisioned. See March v. Mills, 867 F.3d at 61 (“The protester is . . . subject to the Noise Provision’s

restriction on noisemaking only if he expresses that message in a certain manner—that is, with the

specified disruptive intent and ‘after having been ordered by a law enforcement officer to cease.’ ”).

The fact that no citation was issued suggests that the warning served its purpose—it screened out the

speakers who did not have the intent to disrupt the provision of health services. See id. (“[T]he most

probative evidence of disruptive intent is a person’s decision to intentionally keep making loud noise

after having been warned of its disruptive effect.”).

way.” See id. at 61. For example, he provides no facts indicating that the officers

singled out Mr. March because of the content of his speech rather than the disruptive

nature of it. Instead, he surmises that Health Center staff must have done so, asking,

“Why would Planned Parenthood staff—who have admitted to making complaints

based upon the content of Plaintiff’s speech—not make such complaints when

Portland’s policies permit them to silence speech they disagree with?”20 Pl.’s Reply 5

(ECF No. 178).

In reality, the record contains numerous undisputed facts supporting a very

different conclusion, namely that officers acted because they received complaints

about the disruptive nature of Mr. March’s noise; that the Portland Police

Department only issued one official warning to Mr. March; and that on the occasion

when he was warned, the officer could hear Mr. March’s voice from at least a half

block away, giving the police independent confirmation of Mr. March’s volume. See

City’s Mot. Facts ¶¶ 6, 9; JSR Ex. 3 (showing that on November 6, 2015, Officer

Nadeau responded to the Health Center after receiving a complaint that a person

outside was speaking at a volume that interfered with the provision of health care

20 Mr. March provides no citation for his assertion that “Planned Parenthood staff have admitted

to making complaints to Portland based upon the content of Plaintiff’s speech.” Pl.’s Am. Opp’n City’s

Mot. 9. His factual statements that purport to align with this assertion either contain no citations to

the record or unhelpfully cite the entire record. See Pl.’s Mot. Facts ¶ 46 (citing no part of record in

alleging that officers were informed by Health Center staff “that sometimes the content of the

protestors’ speech constituted a distraction and may have troubled unidentified patients”); Pl.’s Mot.

Facts ¶ 67 (citing entire record to state that Health Center staff have only lodged complaints against

pro-life protesters). Pursuant to Local Rule 56(f), I disregard these unsupported assertions. See D. Me.

Loc. R. 56(f) (“The court may disregard any statement of fact not supported by a specific citation to

record material properly considered on summary judgment. The court shall have no independent duty

to search or consider any part of the record not specifically referenced in the parties’ separate

statements of facts.”).

services inside the building and that as he rolled up he could hear the Plaintiff from

at least a half block away); City’s Mot. Facts ¶¶ 31–33 (stating that on December 4,

2015, Mr. March acknowledged that Officer Hults spoke to him after receiving a

complaint from someone inside the Health Center); City’s Mot. Facts ¶¶ 40–41

(stating that on December 11, 2015, after receiving a complaint from inside Health

Center that Mr. March was making noise at a volume that interfered with the

provision of health care services, Officer Hults went into the Health Center and

verified that Mr. March could be heard from inside).

Moreover, Mr. March’s argument that the City’s enforcement of the Noise

Provision has “armed [Health Center] staff with a heckler’s veto” is likewise

unsupported. See Pl.’s Mot. 11. An unconstitutional “heckler’s veto” exists when the

government allows or disallows protected speech based merely on the audience’s

reaction to its content. See Bachellar v. Maryland, 397 U.S. 564, 567 (1970) (“[I]t is

firmly settled that under our Constitution the public expression of ideas may not be

prohibited merely because the ideas are themselves offensive to some of their hearers,

or simply because bystanders object to peaceful and orderly demonstrations.”)

(internal quotations and citations omitted); Ctr. for Bio-Ethical Reform, Inc. v. L.A.

Cty. Sheriff Dep’t, 533 F.3d 780, 788 (9th Cir. 2008) (“[T]he government cannot silence

messages simply because they cause discomfort, fear, or even anger.”).

Again, the First Circuit has already held that the Noise Provision is facially

constitutional and content-neutral, and Mr. March has put forth no evidence that the

police acted based merely on the Health Center staff’s reaction to the content of his

message. Instead, the properly supported facts establish that the police only acted

when Health Center staff complained that Mr. March interfered with the provision

of health care services.21 See Rosenbaum v. City & Cty. of San Francisco, 484 F.3d

1142, 1159 (9th Cir. 2007) (rejecting “heckler’s veto” claim of viewpoint discrimination

and noting that imputing the view of the complainant to investigating officers would

lead to an “absurd result”).

There is only one statement by an officer that content was ever considered.

During the December 4, 2015 encounter, Lt. Preis essentially told Mr. March that it

was a combination of the noise that he was making and the content of what he was

saying that caused a problem. See JSR Ex. 6. But this single reference by a police

officer to the content of the message does not help Mr. March. Not only did Lt. Preis

not issue a warning under the Noise Provision, but he even told Mr. March, “I don’t

think you are being very loud, based on what I’m seeing.” JSR Ex. 6. Mr. March was

allowed to continue his protest. In fact, at that interaction, and at all others in the

record, officers repeatedly assured Mr. March that he could continue to share his

21 Mr. March does not point to facts that support his claim that Health Center employees issued

complaints solely based on his message. The record reveals that Mr. March protested many times

outside of the Health Center, both before and after the incidents relevant to this case without any

complaints from Health Center Staff. When Health Center staff did complain on November 6th,

December 4th, and December 11th, the record reveals that they told the police that noise could be

heard inside the Health Center. JSR Exs. 3, 5, 6. There is, however, one complaint in which the Health

Center staff referred to both noise and content. The police record generated from the Planned

Parenthood complaint made on November 13, 2015, states that the staff indicated that “hearing the

‘aggressive’ noise and sometimes the content of the speech constituted a distraction and may have

troubled unidentified patients.” JSR Ex. 19 at 15–16. Although this record evidence exists, it does not

help the Plaintiff. The police report indicates that the complainants had not “indicated how [the

awareness of the protests] constituted an interference with their delivery of health care services.” JSR

Ex. 19 at 15. There is no indication in the record that the police took any action against Mr. March

based on the November 13th complaint.

message at a lower volume. The Plaintiff might have been able to establish a

constitutional violation if the police had asked him to bring his volume down to a

whisper or required him to stop speaking altogether. But the videotapes show that

Mr. March was allowed to continue speaking at a level that was loud and clear enough

for his intended audience to easily hear him. See JSR Exs. 2, 3, 4, 6, and 7; see also

Pl.’s Mot. Facts ¶ 79.

The success of the Plaintiff’s viewpoint and content discriminatory

enforcement challenge “is dependent on the factual evidence provided as to how the

statutory scheme has in fact operated vis-á-vis [the Plaintiff].” McGuire, 386 F.3d at

62. The undisputed facts refute any assertion that the City enforced the Noise

Provision based on the Plaintiff’s viewpoint. The Plaintiff has failed to offer any

evidence showing that the scheme was enforced in a discriminatory manner or

constituted a “pattern of unlawful favoritism.” Id. at 64; see also Brown v. City of

Pittsburgh, 586 F.3d 263, 293 (3d Cir. 2009) (explaining that to prove a pattern of

unlawful favoritism, a plaintiff “must prove not merely that the weight of [a

municipality’s] enforcement of [an ordinance] has tended to fall more heavily on those

who advocate one viewpoint . . . than on those who advocate another;” rather, a

plaintiff “must also prove that such enforcement occurred because of the viewpoint

expressed”). Nor has Plaintiff shown that the police enforced the statute in a content-

dependent way. As such, based on the undisputed facts, the City and the Attorney

General are entitled to summary judgment on this claim.

2. Prior Restraint

Count III of the Amended Complaint asserts that the Noise Provision

represents an unconstitutional prior restraint on Mr. March’s speech and has

foreclosed his ability to convey his message. Am. Compl. ¶¶ 141–50. But again, the

record belies his argument.22

The term “prior restraint” is “used to describe administrative and judicial

orders forbidding certain communications when issued in advance of the time that

such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550

(1993) (internal quotations and citation omitted). In practice, at the municipal level,

prior restraints often take the form of “licensing [or] permit schemes” that require

speakers to obtain permission in advance of certain speech or expression. See New

England Reg. Council of Carpenters v. Kinton, 284 F.3d 9, 21 (1st Cir. 2002). Out of

concern for “government censorship,” id., there is a “heavy presumption against [the]

constitutional validity” of a prior restraint. N.Y. Times v. United States, 403 U.S 713,

714 (1971) (per curiam) (internal quotations omitted). And any permissible prior

restraint must “contain adequate substantive and procedural safeguards against

22 The Plaintiff also alleges that the Noise Provision is not a valid time, place, and manner

restriction as applied to him. Am. Compl. ¶ 132. In Count II, he specifically claims that he “cannot

reach his intended audience at an audible volume” and that the “[s]tatute, as enforced by Defendants,

has almost completely foreclosed [his] ability to communicate his message.” Am. Compl. ¶¶ 136–37.

The Plaintiff develops no argument as to why he is entitled to summary judgment on this particular

count; in fact, he makes no mention of a “time, place, and manner” restriction in any of his briefing on

these pending motions. Instead, he simply argues that the enforcement of the Noise Provision has

foreclosed his ability to protest—an argument that appears in several of his claims. Because the First

Circuit has held that the Noise Provision is a facially constitutional time, place, and manner

restriction, and because I conclude that Mr. March has failed to show that it has been enforced

unconstitutionally or has foreclosed his speech, the City and Attorney General are entitled to summary

judgment on Count II as well.

arbitrary (or content-based) State action.” Kinton, 284 F.3d at 21. The Plaintiff

merely asserts that the Noise Provision imposes a prior restraint, but he makes no

attempt to analyze the law or explain how his case fits within this legal doctrine.

Here, neither the City nor the Attorney General has imposed any requirement

on Mr. March before he is permitted to protest outside of the Health Center. Rather,

the City has taken action only after Mr. March was already protesting and after

officers received complaints from Health Center employees. Moreover, at each such

encounter, officers repeatedly assured Mr. March that they were not prohibiting him

from protesting in a less disruptive manner, and video evidence shows that Mr.

March continued to speak at a level clearly audible to people passing by. The record

also shows that Mr. March continued to protest outside the Health Center at least

twenty times between December of 2015 and April of 2016. Pl.’s Mot. Facts ¶ 120.

Thus, according to the undisputed facts, the Noise Provision and the City’s

enforcement of it have not “completely ban[ned] Plaintiff from engaging in audible

protected speech near the [Health Center]” or “foreclose[d] Plaintiff’s ability to

communicate orally with his fellow citizens near the [Health Center.]” Am. Compl.

¶¶ 144–45.

The First Circuit has already held that the Noise Provision is facially content

neutral and serves a “significant state interest without burdening substantially more

speech than necessary and while leaving open ample alternative avenues for

communication.” March, 867 F.3d at 69. If the statute provides alternative avenues

and the City’s apparent policy did not close off those avenues, as demonstrated by

Mr. March’s own actions, it is unclear how either the City or the Attorney General

enacted an unconstitutional prior restraint. Thus, the City and the Attorney General

are entitled to summary judgment on this claim as well.

B. Equal Protection

Mr. March also asserts an equal protection claim, arguing that the City and

the Attorney General have selectively enforced the Noise Provision against him based

on his religion. Am. Compl. ¶¶ 151–57. As with his other claims, this claim is

unsupported by the record. To prove an equal protection claim for selective

enforcement, a plaintiff must show that “(1) the person, compared with others

similarly situated, was selectively treated; and (2) that such selective treatment was

based on impermissible considerations such as race, religion, intent to inhibit or

punish the exercise of constitutional rights, or malicious or bad faith intent to injure

a person.”23 Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir. 2013) (internal

quotations omitted). Although the “formula for determining whether individuals or

entities are ‘similarly situated’ . . . is not always susceptible to precise demarcation,”

the “test is whether a prudent person, looking objectively at the incidents, would

23 In McGuire, the First Circuit noted the overlap between First Amendment and equal

protection claims in the as-applied context, specifically when a plaintiff is challenging the enforcement

of a statute that restricts speech. See 386 F.3d 62–64. The court explained that the “primary potential

difference concerns the role of intent: in equal protection cases, plaintiffs must show that the relevant

government actor intended to discriminate against the disfavored group.” Id. at 63. The court noted

that “[i]ntent, in this context, means more than mere knowledge by the government actor that a policy

has a discriminatory effect.” Id. Rather, “the government agent must have adopted the policy because

of, and not despite, its discriminatory impact.” Id. Explaining that such “[i]mpermissible intent is

difficult to demonstrate” in a selective enforcement claim, the court declined to analyze such intent

because it concluded that the plaintiffs’ claims failed under the more lenient “pattern of unlawful

favoritism” required for a successful First Amendment challenge. Id. at 62–64. I point out this

distinction because Mr. March has identified no facts to support any discriminatory intent on the part

of the City, its officers, or the Attorney General.

think them roughly equivalent and the protagonists similarly situated.” Aponte-

Ramos v. Álvarez-Rubio, 783 F.3d 905, 909 (1st Cir. 2015) (internal quotations

omitted). “In other words, apples should be compared to apples.” Id. (internal

quotations omitted).

Although Mr. March repeatedly asserts that, “since its inception, the MCRA

and its Noise Provision have only been enforced by Portland against pro-life

protestors like Plaintiff and only upon complaints from Planned Parenthood,” his

argument that this translates into selective enforcement is speculative. Pl.’s Reply 4,

6. He contends, without citation to any fact, that “Planned Parenthood surgically

wields the heckler’s veto enshrined in Portland’s policies against Plaintiff to silence

him because they oppose the content of his pro-life message.” Pl.’s Reply 4. He further

speculates that “obviously, Planned Parenthood did not make any complaints against

any of these other entities because Planned Parenthood is not opposed to the

messages being expressed.” Pl.’s Reply 4.

Simply put, Mr. March points to no evidence indicating that he was singled out

because of his religion, or even that officers treated any other similarly situated

person differently. Although Mr. March claims that officers and Health Center

employees did not enforce the Noise Provision against other loud groups, such as

climate change protesters, he fails to show that those groups were similarly situated.

Am. Compl. ¶ 73; Pl.’s Mot. 10. As the videotapes reveal, the noise from the climate

change protest is very different in character from Mr. March’s preaching. Compare

JSR Ex. 8, with JSR Ex. 2. In the videotape in Exhibit 8, a large group of young people

parade down the far side of Congress Street moving swiftly by the Health Center

repeating in a cacophonous chorus: “What do we want? Climate action! When do we

want it? Now!” In contrast, in the videotape in Exhibit 2, Mr. March stands on a

soapbox on the sidewalk below the Health Center facing the windows of the Health

Center, which are perhaps twelve feet above his head. His lone, penetrating voice can

be heard over all others. The videotape, which shows only a portion of his protest,

goes on for ten minutes and includes Mr. March’s discussion with a passerby. At the

end of the video, he states, “let’s go back to the reading,” suggesting that his protest

continues.24 There are no facts suggesting that other noisemakers, such as the

climate protesters, were disrupting the provision of health services within the

building. See Pl.’s Mot. Facts ¶¶ 129–134 (explaining that the City is not aware of

receiving complaints that noise by other individuals or groups was interfering with

the provision of health care services within the Health Center).

Mr. March identifies no instance where another speaker did not receive a

warning after Health Center employees complained that the person was interfering

with the provision of health services. Nor does he even argue that officers warned

him without such a complaint from a Health Center employee. See Buchanan v.

Maine, 469 F.3d 158, 178 (1st Cir. 2006) (explaining that a plaintiff “claiming an

equal protection violation must first identify and relate specific instances where

persons situated similarly in all relevant aspects were treated differently, instances

24 There is no evidence in the record that Health Center staff complained to the police on this

occasion.

which have the capacity to demonstrate that [the plaintiff was] singled out for

unlawful oppression”) (internal quotations, alteration, and emphasis omitted).

Rather, Mr. March merely speculates that Health Center employees only complained

about him because of his message and religion. This speculation is insufficient at the

summary judgment stage.

Section 1983 liability only arises when there has been a constitutional

violation. See Kennedy v. Town of Billerica, 617 F.3d 520, 531 (1st Cir. 2010)

(explaining that a municipality can only be liable for “identifiable constitutional

violations attributable to official municipal policy”); City of Los Angeles v. Heller, 475

U.S. 796, 799 (1986) (per curiam) (“If a person has suffered no constitutional injury

at the hands of the individual police officer, the fact that the departmental

regulations might have authorized the use of constitutionally excessive force is quite

beside the point.”). Even if I view the record in the light most favorable to him, Mr.

March has failed to present any facts suggesting that his constitutional rights were

violated. Thus, I conclude that the City and the Attorney General are entitled to

summary judgment on Mr. March’s viewpoint discrimination (Count I), prior

restraint (Count III), and equal protection (Count IV) claims.25

C. Due Process Clause

The City and the Attorney General both move for summary judgment on Mr.

March’s claim that the Noise Provision is unconstitutionally vague, both facially and

25 Because I conclude that the City and the Attorney General are entitled to summary judgment

on these claims, Mr. March’s motion for summary judgment on these claims is denied.

as applied to him (Count V).26 In his Complaint, Mr. March asserts that the Noise

Provision “does not give fair notice to citizens” and “does not provide minimal

standards to guide law enforcement.” Am. Compl. ¶¶ 163–64. Specifically, Mr. March

contends that “heard within a building” is not an objective standard because it varies

based on other noise and weather conditions and because it cannot be independently

known by a law enforcement officer. Am. Compl. ¶¶ 165–66.

In his motion for summary judgment, the Attorney General relies on ten cases

to argue that the Noise Provision is not void for vagueness because, inter alia, the

statute carries civil rather than criminal penalties, has a mens rea requirement, has

a warning requirement, and creates an objective volume threshold for a violation. The

City likewise argues that the Noise Provision “identifies the harm to be addressed,”

“requires a causal connection between the protected interest and certain forbidden

conduct,” and “requires proof of intent.” City’s Mot. 13 (ECF No. 163). Mr. March

offers neither analysis nor case support in opposing the Attorney General or the

City.27 In the opening paragraph of his own motion, Mr. March asserts that he is

26 Mr. March made no vagueness challenge to the statute when the case was before the First

Circuit. See March, 867 F.3d at 55 n.5.

27 Mr. March begins his opposition to the Attorney General’s motion with an italicized

subheading that states, “Whatever ‘noise’ Planned Parenthood chooses to complain about is not a

lawful or constitutionally permissible standard by which to enforce the Maine Civil Rights Act against

Plaintiff.” Pl.’s Opp’n AG’s Mot. 1 (ECF No. 169). But he did not put the flesh on the bones of this point.

See Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1976). His only statements on vagueness

are, in his introduction section, “Plaintiff asserts . . . the Noise Provision is unconstitutionally vague,”

and, in his conclusion section, “the Noise Provision, as applied to Plaintiff . . . is unconstitutionally

vague.” Pl.’s Opp’n AG’s Mot. 2, 6.

In opposing the City’s motion for summary judgment, Mr. March wrote in his introduction that

“Plaintiff opposes Portland’s Summary Judgment Motion and asserts that . . . the Noise Provision . . .

is unconstitutionally vague,” and in his conclusion section he wrote that “the Noise Provision, as

applied to Plaintiff . . . is unconstitutionally vague.” Pl.’s Am. Opp’n City’s Mot. 1–2, 13.

moving for summary judgment against the City on his due process claim, but he

develops no argument on this point until the final pages of his Reply brief. See Pl.’s

Mot. 1; Pl.’s Reply 7–8. Even then, he makes unsupported and vague accusations,

without any developed analysis or case support.28

“The vagueness doctrine, a derivative of due process, protects against the ills

of laws whose ‘prohibitions are not clearly defined.’ ” Nat’l Org. for Marriage v. McKee,

649 F.3d 34, 62 (1st Cir. 2011) (quoting Grayned v. City of Rockford, 408 U.S. 104,

108 (1972)). A statute is impermissibly vague if (1) “it fails to provide people of

ordinary intelligence a reasonable opportunity to understand what conduct it

prohibits” or (2) “it authorizes or even encourages arbitrary and discriminatory

enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). Out of concern for arbitrary

suppression of free speech, “the Constitution requires a ‘greater degree of specificity’

in cases involving First Amendment rights.” McKee, 649 U.S. at 62. Nevertheless,

“mathematical certainty from our language” is impossible and unattainable. See

Grayned, 408 U.S. at 110. Moreover, the Supreme Court has been more tolerant of

enactments that impose civil—rather than criminal—penalties and ones that contain

a scienter requirement. See Village of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 498–99 (1982); Hill, 530 U.S. at 732 (explaining that concern about

28 Mr. March’s cursory treatment of the vagueness issue in both his oppositions and own motion

likely amounts to a waiver and entitles the Attorney General and the City to summary judgment. See

Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (quoting Vaughner v. Pulito, 804

F.2d 873, 877 n. 2 (5th Cir. 1986)) (“[A]n issue raised in the complaint but ignored at summary

judgment may be deemed waived. ‘If a party fails to assert a legal reason why summary judgment

should not be granted, that ground is waived.’ ”); Vélez-Vélez v. P.R. Highway & Transp. Auth., 795

F.3d 230, 238 (1st Cir. 2015) (same).

proper notice can be “ameliorated by the fact that [the statute] contains a scienter

requirement”).

In Grayned, the Supreme Court upheld an “antinoise” ordinance challenged on

vagueness grounds. 408 U.S. at 106. That ordinance prohibited persons from

“willfully mak[ing] . . . any noise or diversion,” while next to a school, that “disturbs

or tends to disturb the peace or good order of such school session.” Id. at 107–08. In

holding that the ordinance was not unconstitutionally vague, the Supreme Court

explained that any vagueness in these terms “is dispelled by the ordinance’s

requirements that (1) the ‘noise or diversion’ be actually incompatible with normal

school activity; (2) there be a demonstrated causality between the disruption that

occurs and the ‘noise or diversion’; and (3) the acts be ‘willfully’ done.” Id. at 113–14.

The Court contrasted the ordinance with a “vague, general ‘breach of the peace’

ordinance,” and noted that the antinoise ordinance was “written specifically for the

school context, where the prohibited disturbances are easily measured by their

impact on the normal activities of the school.” Id. at 112. Although enforcement of the

ordinance “require[d] the exercise of some degree of police judgment,” that judgment

was sufficiently “confined” because there must be “demonstrated interference with

school activities.” Id. at 114.

Similarly, in Boos v. Barry, the Supreme Court held that a statute that

restricted congregations at embassies was not unconstitutionally vague because the

words and context of the statute “gave fair notice of its scope.”29 485 U.S. 312, 332

(1988). As in Grayned, the Court explained that the “prohibited quantum of

disturbance” need not be specified in the statute. Id. The statute in Boos was “crafted

for a particular context and given that context, it [was] apparent that the ‘prohibited

context of disturbance’ is whether normal embassy activities have been or are about

to be disrupted.” Id. Because the statute “communicate[d] its reach in words of

common understanding,” it survived the vagueness challenge. Id.

The words and context of the Noise Provision undermine Mr. March’s

argument that the statute authorizes arbitrary and discriminatory enforcement.

Under the terms of the statute, noise that can be heard within the building and that

is made intentionally to disrupt services within it is prohibited.30 As in Grayned, it

is not merely the volume of the noise that is restricted.31 Nor is it just the intent of

the speaker. Rather, it is the combination of the two. See March, 867 F.3d at 67. And

this is a reflection of the statute’s purpose. When the First Circuit upheld the Noise

Provision against Mr. March’s earlier facial challenge, the court explained that the

Noise Provision addressed a particular harm, namely interference with “safe and

29 Although the text of the statute appeared vague and overbroad, the Supreme Court adopted

the narrowed interpretation applied by the appellate court. Boos v. Barry, 485 U.S. 312, 331–32 (1988).

30 I am not convinced by Mr. March’s argument that “heard within a building” lacks objectivity.

Just because the volume that meets that standard might change due to varying external conditions

does not mean that it is subjective. Moreover, the fact that the audible volume might change merely

reinforces the ineffectiveness of a strict decibel limit. Instead of imposing such a limit, the Noise

Provision is tailored to address noise that actually can be heard within a building and then, within

that, is targeted at a subset of noise that is meant to disrupt the health services within.

31 In Grayned, the Supreme Court explained that it is not the sheer volume level that determines

whether a noise will be disruptive. Instead, any disturbance was to be measured by its impact on

normal school activities. See Grayned v. City of Rockford, 408 U.S. 104, 112 (1972).

effective health care.” Id. at 64–66. And the Noise Provision contemplates a

“demonstrated causality” between the disruption of health care services and the

noise. See Grayned, 408 U.S. at 113. It is thus “clear what the [Noise Provision] as a

whole prohibits,” even if isolated words or phrases might seem vague initially. Id. at

110 (finding ordinance constitutional even though certain words were “marked by

flexibility and reasonable breadth, rather than meticulous specificity”) (internal

quotations omitted). As the First Circuit explained, the Noise Provision “target[s] a

subset of loud noise that is likely to cause the ‘unique’ harm that Maine has a

significant interest in singling out.” March, 867 F.3d at 66.

In addition, other factors weigh against finding that the Noise Provision is

impermissibly vague. First, it imposes no criminal penalty. See Village of Hoffman

Estates, 455 U.S at 498–99 (explaining that the Supreme Court has “expressed

greater tolerance of enactments with civil rather than criminal penalties because the

consequences of imprecision are qualitatively less severe”). Second, it contains both a

warning requirement and a mens rea requirement. Officers must warn the speaker

before issuing any citation. And a citation is only to be issued if the speaker intends

to jeopardize the health of persons receiving services within the building or to

interfere with the safe and effective delivery of those services. 5 M.R.S.A. § 4684-

B(2)(D). These requirements ensure that no person will be punished for accidentally

or unknowingly making such disruptive noise, and thus the statute does not act as “a

trap for those who act in good faith.” Colautti v. Franklin, 439 U.S. 379, 395 (1979)

(internal quotations omitted); see also Gonzales v. Carhart, 550 U.S. 124, 149–150

(2007) (explaining that the Supreme Court “has made clear that scienter

requirements alleviate vagueness concerns”). On the whole, I conclude that the Noise

Provision is not unconstitutionally vague on its face.

Mr. March also asserts that the Noise Provision is unconstitutionally vague as

applied to him. Specifically, he argues that the City’s application of the Noise

Provision against him “failed to provide him with a reasonable opportunity to

understand what conduct was prohibited.” Pl.’s Reply 7. However, during each

interaction with Mr. March, officers gave guidance on how to comply with the Noise

Provision. When officers formally warned Mr. March under the Noise Provision on

November 6, 2015, they provided him with a copy of the statute, which I have just

concluded sufficiently conveys what is prohibited and is not impermissibly vague.

JSR Exs. 3 and 7. On December 4, 2015, Lt. Preis attempted to explain the Noise

Provision’s requirements, indicated that Mr. March’s volume when speaking with

him was not too loud, and recommended that Mr. March reach out to the Attorney

General’s office for more specific guidance. JSR Ex. 6. Finally, on December 11, 2015,

after Mr. March asked Officer Hults whether there was a definitive volume he could

speak at, Officer Hults replied that the volume Mr. March was speaking at then was

“fine” and explained that it was only a problem when Mr. March was so loud that his

voice could be heard inside the building. JSR Ex. 5. Each of these encounters

demonstrates that officers repeatedly provided reasonable guidance to Mr. March on

how to comply with the Noise Provision.

Again, at the summary judgment stage, Mr. March cannot just reassert his

claims and disregard the undisputed facts that refute them. See Cherkaoui, 877 F.3d

at 24 (explaining that the “nonmovant must provide sufficiently supported evidence,

without relying upon mere allegation or denials of the movant’s pleading, to establish

a genuine issue for trial” and that the “plaintiff must offer significant probative

evidence tending to support the complaint”) (internal quotations and alterations

omitted). Accordingly, the City and the Attorney General are entitled to summary

judgment on the Plaintiff’s unconstitutional vagueness claim.

II. Causation

In addition to identifying a deprivation of a federal right, a plaintiff bringing a

§ 1983 claim must also establish that “the defendant’s conduct was a cause in fact of

the alleged deprivation.” Soto, 103 F.3d at 1062. Although I find that the Plaintiff has

not established that he suffered any constitutional violation, I also conclude that his

claims fail for the independent reason that he has not shown that the challenged

conduct was attributable to either the Attorney General or the City.

A. Attorney General’s Motion for Summary Judgment

The Attorney General argues that he is also entitled to summary judgment on

Mr. March’s constitutional claims because the Attorney General has not enforced the

Noise Provision against Mr. March or caused the Noise Provision to be enforced

against him. AG’s Mot. 5–7 (ECF No. 162). Put another way, Mr. March attempts to

bring an as-applied challenge against a party who has not applied the law to him. Mr.

March responds that the Attorney General is the only state actor responsible for

prosecuting and exercising prosecutorial discretion over reported violations of the

Noise Provision, and he cites a Maine Superior Court case where the Attorney

General brought an action against another protester. Pl.’s Opp’n AG’s Mot. 4–5 (ECF

No. 169). Mr. March also maintains that “Portland must work in concert with” the

Attorney General to enforce the Noise Provision because the Attorney General

prosecutes violations. Pl.’s Opp’n AG’s Mot. 5.

It is undisputed that Mr. March has not been referred to the Attorney General,

much less prosecuted by him. AG’s Mot. Facts ¶ 13. Moreover, the Attorney General’s

office had no conversations about Mr. March’s protests with the City of Portland, its

Police Department, or Health Center employees. AG’s Mot. Facts ¶ 19. The record

does not show that the Attorney General was involved in the application of the Noise

Provision to Mr. March in any way. In the absence of either legal authority or

disputed facts about the Attorney General’s role in applying or coordinating the

application of the Noise Provision, I conclude that there is no evidence that the

Attorney General caused a deprivation of Mr. March’s free speech or equal protection

rights. Accordingly, even if Mr. March could establish a constitutional violation, the

Attorney General would be entitled to summary judgment on Mr. March’s as-applied

free speech and equal protection claims.

B. Motions for Summary Judgment on Claims Against the City

As discussed above, Mr. March faces an additional hurdle in attempting to hold

the City liable for any constitutional violation under § 1983. In particular, he must

show that “official municipal policy of some nature caused [the] constitutional tort.”

Monell, 436 U.S. at 691. This means that at trial Mr. March “bears the burden of

showing that, ‘through its deliberate conduct, [the City] was the moving force behind

the injury alleged.’ ” Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011) (quoting

Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 530 U.S. 397, 404 (1997)) (internal

quotation omitted). In other words, there must be “a direct causal link between a

municipal policy or custom and the alleged constitutional deprivation.” City of Canton

v. Harris, 489 U.S. 378, 385 (1989); see also Young, 404 F.3d at 26 (emphasizing that

(1) “the municipal policy or custom [must] actually have caused the plaintiff’s injury”

and (2) “the municipality [must have] possessed the requisite level of fault, which is

generally labeled in these sorts of cases as ‘deliberate indifference’ ”) (citations

omitted). 32

32 The First Circuit has not decided whether, and in what circumstances, municipal enforcement

of state law can be a municipal policy under § 1983. See Martin v. Gross, 340 F. Supp. 3d 87, 99 (D.

Mass. 2018). A concurrence in Yeo v. Town of Lexington, suggests that a municipal policy that is taken

in “good faith reliance upon state law . . . cannot give rise to municipal liability under § 1983.” 131

F.3d 241, 257 (1st Cir. 1997) (Stahl, J., concurring) (citing Surplus Store & Exch., Inc. v. City of Delphi,

928 F.2d 788, 791–92 (7th Cir. 1991)).

In Snyder v. King, the Seventh Circuit rejected § 1983 municipal liability where a county voter

registration board, acting pursuant to state law, removed an individual convicted of a misdemeanor

from the voter rolls. 745 F.3d 242, 243–44 (7th Cir. 2014). The court held that there was no “direct

causal link” between a county policy and any deprivation of federal right because “the only local

government ‘policy’ at issue [was] general compliance with the dictates of state law.” Id. at 247. The

court relied in part on Surplus Store & Exchange, Inc. v. City of Delphi, in which the Seventh Circuit

wrote, “It is difficult to imagine a municipal policy more innocuous and constitutionally permissible,

and whose causal connection to the alleged violation is more attenuated, than the ‘policy’ of enforcing

state law.” 928 F.2d at 791.

However, in Vives v. City of New York, the Second Circuit held that the existence of a municipal

policy depends on “(1) whether the City had a meaningful choice as to whether it would enforce [the

statute in question]; and (2) if so, whether the City adopted a discrete policy to enforce [the statute in

question] that represented a conscious choice by a municipal policymaker.” 524 F.3d 346, 353 (2d Cir.

2008); see also Martin, 340 F. Supp. 3d at 99. Mr. March has not developed any argument as to whether

the City had a “meaningful choice” to enforce the Noise Provision or whether the letters and emails

reflected “a conscious choice” by the City to enforce the Noise Provision in a certain way. In fact, he

makes no effort to distinguish this case from Snyder or to liken it to any other relevant case. However,

for the sake of deciding these motions for summary judgment, I assume that the City had some policy

or custom in place.

Mr. March asserts that the various letters and emails from City officials

constitute a municipal policy33 that:

it is good enough for Planned Parenthood to merely allege that they

heard noise within the Planned Parenthood facility (a misinterpretation

of the MCRA) and at most to offer a notion that any alleged noise is

somehow affecting undisclosed medical procedures being administered

to unnamed patients within an unidentified section of the Planned

Parenthood facility (also a misinterpretation of MCRA).

Pl.’s Mot. 10. The Plaintiff focuses in on the Planned Parenthood OT Detail

Instructions distributed by Commander Rogers in January of 2016 as support for a

City policy.34 Those instructions state:

If you are notified by PPH staff that someone is so loud they are

interfering with the safe and effective delivery of health services you will

need to warn the person who is too loud and explain to them what they

are being warned for as well as the consequences for continuing. (you do

not need to be the one to hear if it is too loud inside, if they say it is too

loud that is good enough.)

JSR Ex. 22-A.

The City makes the persuasive point that these instructions could not have

been the moving force behind any violation of the Plaintiff’s rights because they were

33 The Plaintiff acknowledges that in order for the City to be held liable he would need to

establish that the City had a policy or custom that was the “moving force” behind the violation of his

constitutional rights or that a single decision by a municipal official with final policy-making authority

constituted official policy. Pl.s’ Mot. 8–10. The Plaintiff does not develop either an argument that the

City had some custom that constituted municipal policy or an argument that someone with final policy-

making authority made a decision that constituted City policy.

34 In his opposition to the City’s motion, Mr. March appears to also argue that earlier letters and

emails from Portland police officials adopted a policy of enforcing the Noise Provision whenever a

protester’s voice could be heard within the Health Center, whether or not the speech was interfering

with the provision of health care services. See Pl.’s Am. Opp’n City’s Mot. 6–7. Assuming that this is

true and that those documents constituted a municipal policy, the Plaintiff’s argument would still fail.

There is no evidence that such a policy caused a constitutional violation because there is no evidence

that officers enforced the Noise Provision against Mr. March without a complaint that he was in fact

interfering with the provision of health care services.

not provided to the officers until January of 2016—a month after the last event

alleged by Mr. March in his Amended Complaint. City’s Opp’n 8 (ECF No. 173).

Although I could hypothesize a scenario where these instructions memorialized a

custom that developed among the officers of relying solely on the uncorroborated

report of Health Center staff, the problem with this hypothetical argument is that it

is not supported by the record.

The record contains evidence that Health Center staff complained about Mr.

March on four occasions.

• On November 6, 2015, Officer Nadeau, after hearing Mr. March from at least

half a block away, asked Mr. March to bring his volume down. Mr. March

agreed to lower his volume, and he continued to speak at a level that was

clearly audible to the people around him. JSR Exs. 3 and 4. Major Krier later

gave Mr. March his only formal warning under the MCRA. JSR Ex. 7.

• On November 13, 2015, Lt. Preis and Officer Argitis responded to the Health

Center to discuss a complaint made by Planned Parenthood staff that Mr.

March could be heard within the examination room and was disturbing staff

and unidentified patients. The report reflects that the protesters had moved

on by the time the police arrived and indicates that Planned Parenthood staff

could not indicate how their awareness of the protest “constituted an

interference with their delivery of health care services.” No further action was

taken. JSR Ex. 19 at 14–16.

• On December 4, 2015, Officer Hults, after speaking with someone from

Planned Parenthood told Mr. March that he was being too loud. Mr. March

asked to speak to Officer Hults’ supervisor. Lt. Preis35 responded to the scene

and told Mr. March that they were not telling him that he could not speak at

all and that he did not appear to be speaking too loudly. Mr. March was allowed

to continue speaking, and no further action was taken. JSR Ex. 6.

• On December 11, 2015, Officer Hults told Mr. March that Planned Parenthood

staff could hear him from inside. Officer Hults indicated that he had also heard

Mr. March from inside the Planned Parenthood offices. Officer Hults merely

asked Mr. March to lower his volume. Mr. March was allowed to continue to

speak at a level audible to those around him, and no further action was taken.

JSR Ex. 5.

The facts simply do not establish a custom of enforcing the Noise Provision whenever

Health Center staff complained, which is fatal to the theory that Commander

Rogers’s email reflected a preexisting custom by the Portland Police to enforce the

Noise Provision on the say-so of Health Center staff.

35 The Plaintiff could be asserting that Lt. Preis was acting pursuant to an unconstitutional City

policy when Lt. Preis indicated that officers enforced the Noise Provision based on a “combination” of

content and volume. JSR Ex. 6. There are two problems with this argument. First, Lt. Preis was

articulating the standard that was subsequently endorsed by the First Circuit. See March v. Mills, 867

F.3d 46, 67 (1st Cir. 2017). Second, at the next encounter on December 11, 2015, Officer Hults

reiterated that the City’s focus was on the volume of the speaker. See JSR Ex. 5 (March: “[Lt. Preis]

told me it was content and not volume. You’re telling me its volume and not content. Who am I

supposed to listen to?” Hults: “I think he flipped it. I don’t know. But I’m saying it it’s volume, and

they can hear it, then it’s a problem.”). Mr. March has not developed any argument about how a one-

off comment by Lt. Preis could subject the City to Monell liability—particularly when he has provided

no evidence that Lt. Preis even acted based solely on the content of Mr. March’s speech.

For similar reasons, to the extent that Mr. March is asserting that he was

dissuaded from protesting because he feared enforcement of the Noise Provision, he

fails to point to any City policy or action that could be said to have caused such fear.

He admits that his claims “all arise out of” his interactions with Portland Police

officers in November and December of 2015. Pl.’s Mot. Facts ¶ 71. Yet, at each

encounter, officers gave specific guidance on how loud Mr. March could protest,

always permitting him to continue protesting at a volume that could easily be heard

by others on the street.

Moreover, as noted above, Mr. March continued to protest outside of the Health

Center at least twenty times between December of 2015 and April of 2016. He offers

no explanation as to why the November and December interactions—or any City

policy—chilled his speech months later.36 I decline to venture a guess. See Rivera-

Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (“Judges are not expected to be

mindreaders. Consequently, a litigant has an obligation to spell out its arguments

squarely and distinctly or else forever hold its peace.”) (citations and internal

quotation marks omitted).

36 Moreover, Mr. March has not developed any argument that his speech was unconstitutionally

chilled as a result of the January 2016 email from Commander Rogers. Mr. March points to no evidence

that officers have acted pursuant to those instructions or even that he stopped protesting because of

concerns about them. In fact, he states in his own statement of facts that he has ceased protesting

outside of the Health Center because “he fears that if he continues to do so he will be prosecuted

criminally or civilly,” and he explains that this fear “is the result of actions taken by Portland police

officers pursuant to Portland’s policies for enforcing the MCRA in front of the [Health Center.]” Pl.’s

Mot. Facts ¶¶ 69–70. As he identifies no actions taken by officers pursuant to an alleged policy that

postdates the encounters identified in his Complaint, I decline to hypothesize that the January 2016

email itself caused him to cease protesting.

For these reasons, even if Mr. March could show that his constitutional rights

were violated and even if he could show that the City had a discrete policy for

enforcing the Noise Provision, he cannot establish that the City is liable under § 1983

because the undisputed facts establish that any such policy was not the cause of any

such constitutional violation.

CONCLUSION

For the reasons stated above, the Court GRANTS the Attorney General’s

motion for summary judgment (ECF No. 162), GRANTS the City of Portland’s motion

for summary judgment (ECF No. 163), and DENIES Mr. March’s motion for

summary judgment (ECF No. 165). Because I grant the Defendants’ motions for

summary judgment on all counts, the Clerk is directed to enter final judgment for the

Defendants.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 28th day of April, 2020.

APPENDIX A

November 6, 2015 Encounter between Officer Nadeau and Mr. March

March: This is life and death.

Nadeau: We’re here because—only one of you really needs to take a picture. You

don’t need all three of you.

Unknown: We want to make sure we get all the angles.

Nadeau: Okay. We’re here because they called in a complaint that they could

hear you from the inside.

March: I understand.

Nadeau: I’m guessing it’s probably you, right?

March: I mean, I don’t know. Maybe.

Unknown: We’re not inside, sir. We don’t know.

Nadeau: Okay. When I rolled up, I could hear you from back there, okay?

March: Is there an actual noise ordinance? Do, do this for me. Give me an

objective volume level that I can speak at.

Nadeau: Unfortunately, there is no objective volume level. If they say they can

hear it inside, in there, then that becomes a complaint.

March: Is that, is that some ordinance or whatnot?

Nadeau: Ya.

March: So can I complain against them?

Nadeau: For?

March: For executing my fellow citizens.

Nadeau: I already told you there’s nothing I can do about that as a police officer.

March: Okay. What’s the First Amendment. I was born in Jamaica. What is it?

Nadeau: You know what the First Amendment is. Okay? I’m just. I’m just

talking to you. Okay?

March: Alright, fair, fair.

Nadeau: Is that fair?

March: Alright, I apologize, I apologize.

Nadeau: Do you think you could keep it down?

March: Let’s talk like men. Define to me what “keep it down” is. That’s the

question. Like you understand what I’m saying? I need an objective

standard so that I can honor what you’re saying, but then speak.

Nadeau: If you can bring your voice down so that they can’t hear you inside.

Unknown: How do we know they can hear us inside?

March: How do I know whether they can hear me or not?

Nadeau: You can bring it down from where you’re at right now or go from there.

March: Do you believe that that’s logical, that makes sense?

Nadeau: Yeah.

Unknown: That it’s constitutional?

Nadeau: I believe you can bring it down.

March: Oh, I’m agreeing with you. What I’m saying is can’t they just call you

back and say they can still hear me? How can you quantify that? I’m

not trying to play with you . . . I’m just sayin’. . .

Nadeau: Okay. Okay.

March: Let’s work with each other.

Nadeau: Listen, listen I’m here for a noise complaint.

March: I hear you.

Nadeau: They say that they can hear you.

March: I understand,

Nadeau: See where I’m coming from?

March: No, I get you, bro. I get you.

Nadeau: I’m not trying to give you a hard time. I’m not trying to move you guys

out of here. I know you guys have to be here.

March: I do.

Nadeau: But when they call in a complaint, I have to come talk to you.

March: I’m with you.

Nadeau: Okay?

March: Okay, what I’m saying is, what I’m saying is, give me a way to continue

to speak my convictions while honoring what you’re saying.

Nadeau: Just bring your voice down a little. Can you do that?

March: Okay. Roger that. I will bring my voice down a little.

Nadeau: Okay. Is that good?

March: I will do that.

Nadeau: Can I get your name?

March: I will do that for you.

Nadeau: Wanna give me your name?

March: No, I don’t wanna to that.

Nadeau: Okay. Thank you for your time sir.

March: Hey, let me ask you one more question.

Nadeau: What’s that?

March: Actually, two more questions. Couldn’t they lie and say they can still

hear me and you would have to come back here?

Nadeau: I’m sure they could, yes.

March: So then what is the point of this entire discussion?

Nadeau: The point is . . .

March: Because you and I both know they just want to silence us.

Nadeau: Yes. I know that. And so I’m just talking to you.

March: So, what I’m saying is what’s the point of the discussion because as

soon as you leave, you know, it doesn’t matter if I’m whispering, they’re

still going to say that they can hear me.

Nadeau: When somebody comes to make a complaint to me, I have to talk to the

other person.

March: Let me ask you one last question.

Nadeau: What’s that?

March: What’s being aborted up there?

Nadeau: You know I can’t help you with that.

March: I don’t need your help. I just . . .

Nadeau: There’s nothing I can do as a police officer.

March: I’m not saying you can do anything. I’m just saying can you answer the

question?

[Officer Nadeau walks away]

APPENDIX B

November 6, 2015 Encounter between Major Krier and Mr. March

Krier: I just

March: I wasn’t warned about anything. He said he was just asking me for a

favor.

Krier: Oh. Well . . .

March: Are you officially warning me now?

Krier: About noise, ya. All’s I’m doing is I’m letting you know what it’s all

about. This is the Maine Civil Rights Act. [Krier holds up paper]

March: Um hmm. [March takes paper.]

Krier: Okay, so that’s straight from the law about what this is about, about

why we are here. Nothing more than that. And, and . . .

March: You took a, you took a class in criminal justice . . .

Krier: I’m not going to get into

March: No, no, no, let me finish, let me finish . . .

[unintelligible talking over one another]

Krier: That’s the law.

March: What I’m saying is I’m completely ignorant. So I need you to explain.

Krier: Nope.

March: Let me just, let me just . . .

Krier: It’s written so that you can understand.

March: I can’t. So I need you to define . . .

Krier: No, you can talk to a lawyer.

March: So, you’re saying you’re not going to define it.

Krier: No, I’m not, no.

March: You’re just going to give me the paper and not going to explain it?

Krier: That’s correct, yes, because it’s all self-explanatory.

March: What does it mean to jeopardize the health of a person?

Krier: You can talk to an attorney and get that.

March: We have attorneys. I understand that.

Krier: Okay. Then fine. Then you don’t need me. You’re all set. Thank you

very much.

March: Okay sir. Have a great day. God bless you.

[Major Krier walks away.]

Unknown: So is…was that a formal warning?

APPENDIX C

December 4, 2015 Encounter between Lt. Preis and Mr. March

Preis: Hi Andrew.

March: Hey, how’s it going?

Preis: Good.

March: Long time no see.

Preis: Lt. Preis. How are ya? Did you have any questions? They said you

might have a question about the Maine Civil Rights Act?

March: Well, what he said to me was, that, when the nice young lady

complained about noise, I said, tell me how much I should speak

because, surely, he’s not telling me I can’t speak at all?

Preis: Absolutely not.

March: Right, because we all know this is the United States. You believe in the

Constitution. So, what I’m saying is, I asked the officer to tell me

exactly how loud I should speak so that I could exercise my

constitutional rights. You know what’s ironic is I saw a bunch of kids

about an hour ago, yelling about climate control and all that, and we

were actually, you guys were actually helping them. So, it’s curious to

me, they were much louder than I was. We have that on video as well.

Preis: Well, frankly, I don’t think you are being very loud right now, based on

what I’m seeing.

March: I agree with you. I haven’t changed my volume at all.

Preis: Right. But the Maine Civil Rights Act does talk about if they can

articulate that noise and specifically the type of speech and what’s

being said is interfering with a medical procedure, that’s where the

problem could be and that’s very gray. You know what I mean? That’s

very gray. And I understand your frustration with that.

March: I’m not frustrated at all.

Preis: Well, I understand what you’re saying that you hear other noise that’s

louder and that may be. It’s not based on a decibel level.

March: So, what you just said was the content of what I am saying is really the

problem.

Preis: It’s a combination. And if they can—the complainant can articulate

that its interfering with . . .

March: Officer Preis [mispronounces]

Preis: Preis.

March: Preis, my apologies. What you just said to me was that it is not

necessarily my volume level because we just conceded that there was

a parade here . . .

Preis: That’s correct.

March: filled with hundreds of kids which must have outdid me. But it’s the

content of what I’m saying.

Preis: There, there is, there is, there is in the Maine Civil Rights Act,

language that articulates that if what somebody, the noise that

somebody’s making, which could be content, interferes with the ability

of somebody to deliver medical services that could be a problem. I’m

not saying you’re doing that. I’m just letting you know that those are

the things that we’re dealing with and I know you’re somewhat

familiar that the Attorney General was investigating another

gentleman out here, rightly or wrongly, you know, I can’t give an

opinion on that. I’m just telling you what’s happening. And so . . .

March: Look, listen, listen I understand the position that you’re in.

Preis: It’s not a simple one.

March: You gotta do your job.

Preis: Ya.

March: But here’s the deal, I gotta do my job. But here’s what I’m saying to

you.

Preis: Sure.

March: There is no way in the world as far as when you put content into the

equation there is no way in the world that she’s gonna be happy with

the content of what I’m saying. [unintelligible] against her

organization.

Preis: Right.

March: So, so what I’m saying is we have got to find an objective means for me

to exercise my right of free speech and honor you at the same time.

Preis: I agree with you.

March: That’s what I have been asking for for weeks. I’ve been absolutely

imploring you, begging you, please tell me what I can do so that you

don’t have to keep getting put in these situations. I’m sure you didn’t

join the force so that you can harass me.

Preis: And I hope you don’t feel like I’m harassing you because that’s not my

intent at all. I’m just talking.

March: Like I said, we’re both two guys in a situation where it’s kind of an

impossible situation. Because I understand that the minute she says

something that you have to go and whatnot. I understand.

Preis: Well, have you reached out to the Attorney General’s Office at all?

Talked to them?

March: I’m not going to comment on that.

Preis: Okay. That would be something that I would recommend if you’re

trying to come up with something, a middle ground, that, not even a

middle ground, that’s not a good way to say it.

March: [Greets passerby.] Go ahead, I’m sorry. I’m sorry.

Preis: That would be something I would suggest. Maybe you talking to the

Attorney General’s office and work something out if you can.

March: Well, well, we’re going to work something out, for sure. What I’m

asking you guys is tell me what I can do to honor your request because

I’m not going to stop speaking.

Preis: Alright. I understand.

March: So, so, so I got deployed here by King Jesus. I gotta talk, right? So

you’re deployed somewhere, you gotta go . . . it’s the same thing with

me. So, I need you to explain to me what I can do right now in the next

five minutes because I’m not going to stop.

Preis: What you’re doing right now [video ends midsentence].

APPENDIX D

December 11, 2015 Encounter between Officer Hults and Mr. March

March: What’s up officer?

Hults: You’re being heard upstairs so they want you to quiet down a little,

okay?

March: Whose they?

Hults: Meredith and also there’s a patient up there too. I can’t give you her

name, so, it’s a HIPAA thing. Alright, so, I’m just going to ask you to

quiet down, okay?

March: Let me try to understand this. There’s a woman up there about to

murder her child, and they’re, they’re upset at me because they can

hear me?

Hults: Yup. They can just hear you upstairs.

March: Okay, Officer Hults, do I have the freedom of speech in my nation?

Hults: You do. But I already told you it’s not content, it’s volume. That’s what

we’re concerned with right here.

March: Well, you remember, you remember when Preis came here right?

Hults: When who?

March: Preis, you’re supervisor.

Hults: Yes, I remember.

March: He told me the exact opposite, didn’t he?

Hults: Right now, what’s going on is a gray area, and, yeah, we can’t, right

now with the current situation we’re having is fine, but when they can

hear you upstairs and we get a complaint, we just have to ask you to

quiet down.

March: Hults, Hults, you remember that Preis told me the exact opposite of

what you told me?

Hults: What did he tell you, do you remember?

March: He told me it was content and not volume. You’re telling me its volume

and not content. Who am I supposed to listen to?

Hults: I think he flipped it. I don’t know. But I’m saying if it’s volume, and

they can hear it, then it’s a problem.

March: You’re telling me that I need to restrict my civil rights because they’re

complaining about it, is that what you’re saying?

Hults: I’m asking you to quiet down, that’s all.

March: I’m saying, are you telling me to restrict my civil rights?

Hults: I’m not telling you. I’m just asking you to quiet down.

March: What happens if I don’t quiet down?

Hults: I write up a report, we take a complaint, it goes to the Attorney

General. Easy as that.

March: I’m not going to quiet down, Officer Hults, unless you tell me a

definitive volume level that I need to speak at.

Hults: No.

March: Is there a definitive volume level that I can speak at?

Hults: Right now is fine.

March: Okay, well, I’m just going to keep going.

Hults: Sure, go for it.

March: I get harassed every week by them. I don’t have any hard feelings

against you Officer Hults. But honestly, every single week I get

harassed by you guys. [March’s volume is increasing.] All I’m trying to

do is exercise my civil rights. That’s all I’m trying to do. Now what’s

interesting to me is that they call this thing, what is it, the Maine Civil

Rights Act, or whatever? And you’re using the Maine Civil Rights Act

to deny me of my civil rights. You don’t see the irony in that?

Hults: I’m not using it, because I haven’t done anything about it yet. I’m just

asking you to quiet down. Cause I also said though, we don’t really use

this law too much, but there is a thing called disorderly conduct and

that’s using loud noise in a private/public place that can be heard in a

private/public place. That’s actually a crime.

March: Are you, are you threatening me?

Hults: I’m not threatening you, no.

March: Oh.

Hults: I’m just saying we haven’t asked, we haven’t been told to go down that

route yet, okay, but if it’s loud . . .

March: Why

Hults: if it’s loud enough

March: Why are you even bringing it up if you’re not threatening me with it?

Hults: I’m not threatening you. Do you feel threatened?

March: Well, I feel harassed to be honest with you.

Hults: Okay.

March: Cause every week I come out here, and then every week you tell me to

quiet down, then I say what exactly do I need to say and then you never

tell me.

Hults: You can say whatever you want, okay? But it’s just—if you do it loud

enough that’s when it’s a problem.

March: Okay, well and then you’re not giving me an actual volume level.

Hults: I’ve already explained to you that we don’t have any definitive volume

level, but if someone else can hear it, especially in the building that’s

upstairs, that’s when it’s a problem. Because it’s not just an office, but

it’s residences too. That’s the issue, okay?

March: Well it’s interesting to me that you never talk until the lady in the blue

comes down.

Hults: I don’t [unintelligible] enforce it until I have a complaint. That’s how it

works.

[passerby speaks with Officer Hults]

March: By the way, what time is it? Whose got a watch:

Hults: 11:18

March: Well, you know, my stop time is 11:30, so until you give me something

definitive, I’m going to keep going. But I really—I really wish you’d

give me something definitive so we could continue because this is

amazing. I have got civil rights to speak. You’re impeding on my civil

rights, you realize that?

Hults: No, I’m not.

March: Okay.

Hults: I’m just asking you to quiet down. I’m not telling you to stop talking;

I’m just asking you if you can not be loud. It’s that easy.

March: Well I don’t . . .

Hults: That’s pretty reasonable.

March: I don’t think I’m being, I don’t think I’m being too loud. You know,

we’ve had this conversation before. These individuals, I’m always

gonna be too loud for these individuals.

Hults: I get that. But the thing is that . . .

March: You get that?

Hults: Well because we’re right next to each other, yeah, I understand that.

When I go upstairs, I can hear you. That’s when it’s a problem.

[Unintelligible]. People who have to move back because they’re having

an exam right in this other room [gestures], and they don’t feel

comfortable because they can hear you. You are being distracting.

March: Well, you’re agreeing with me that they are never going to be

comfortable with anything I’m saying or how loud I’m saying. You and

I both know they want me off the street, period. Right?

Hults: You know, you’re probably, yeah. They probably just want you gone,

but they’re . . .

March: So officer, if I lower my tone and they come out here again, and you tell

me to lower my tone again, when is it going to stop?

Hults: I don’t know man. I really don’t know.

March: See what I’m saying?

Hults: I do.

March: They, so they constantly come down here no matter what my tone is,

right?

Hults: If I go up there and I can’t hear anything, I can say, ‘you know what, I

don’t see a problem right here.’

March: Hults, you came out here and gave me the thumbs up twenty minutes

ago.

Hults: No, I asked you like I was doing the signal. Remember the signal

[gestures with his hand] we have, the thing we had arranged? Okay,

this is not, this is a little bit too loud because they were complaining.

March: I got ten minutes left.

Hults: Okay.

March: You’re just going to have to deal with me for the next ten minutes.

Hults: No problem.

March: But we really gotta figure this out man.

Hults: Okay, we can try.

March: I’m trying, I’m working with you man. I just . . . a little frustrating.

Hults: I appreciate it. I appreciate it.

[End of video.]