# Leland v. State of Maine

> Superior Court of Maine · April 6, 2001

URL: https://www.frixlaw.com/law-library/cases/10807219

## Case

- **Court:** Superior Court of Maine
- **Decided:** April 6, 2001
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Robert E. Crowley
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE sei at, 4% SUPERIOR COURT

CUMBERLAND, ss. so ats Spas CIVIL ACTION
ee =" DOCKET NO. CV-00-289 S
WILLIAM E. LELAND, lee 5 dosPh "Ol = PEC -hum-afig/addl
Plaintiff
ORDER ON
v. MOTION TO DISMISS

STATE OF MAINE,
KEVIN CURRAN, ROBERT FLINT
and MICHAEL KASPEREEN,

Defendants

FACTUAL BACKGROUND

On May 9, 1998, Trooper Kevin Curran stopped plaintiff William Leland’s
minivan and the three motorcycles accompanying it for speeding. Trooper Curran
detained all four persons until Trooper Robert Flint arrived to conduct a videotaped
interview of each person. Trooper Curran also requested that a drug dog be brought
to the scene to examine the vehicles and personal belongings of the detainees.
Approximately one hour after the initial stop, Trooper Michael Kaspereen arrived
with his canine. The dog inspected the individuals, their belongings and the
interior of the plaintiff’s van, uncovering the presence of marijuana in the vehicle.

On May 5, 2000, the plaintiff filed a five-count complaint against the State of
Maine and the three troopers individually and in their official capacities. Counts I,
II, II and V allege that the State of Maine and the troopers violated federal and state
civil rights laws. Count IV alleges that the defendants invaded the plaintiffs right
of privacy and intruded upon the plaintiff’s physical and mental solitude and

seclusion. Defendants State of Maine and Trooper Michael Kaspereen seek a
dismissal of the plaintiff's complaint in its entirety as to the State and Counts I, I, TL,
and V as to Trooper Kaspereen in his official capacity. For the following reasons, the
defendants’ motion is granted.
DISCUSSION

I. Civil Rights Claims

Suit against the State of Maine and Trooper Kaspereen in his official capacity
is inappropriate under 42 U.S.C.A. § 1983. That section provides

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects or causes to be subjected, any citizen of the United States ... to

the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action
atlaw....

42 U.S.C.A. § 1983 (West Pamph. 2000) (emphasis added). Neither the State of Maine
nor Trooper Kaspereen in his official capacity! are “persons” for purposes of § 1983.
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Accordingly,
dismissal of Counts I and II as against the State and Trooper Kaspereen in his official
capacity is appropriate.

‘The State of Maine and Trooper Kaspereen, in his official capacity, are also
entitled to dismissal of Counts III and V under the Maine Civil Rights Act
(“MCRA”). The MCRA, patterned after § 1983, “provides a private cause of action

for violations of constitutional rights by ‘any person.’ ” Jenness v.Nickerson, 637

1 Section 1983 does not bar suit against a state officer in his personal capacity for damages
arising from his official acts, however. See Hafer v. Melo, 502 U.S. 21, 23 (1991). State officials are
“persons” within the meaning of § 1983 when sued in their individual capacities. 1d. at 31.

2
A.2d 1152, 1158 (Me. 1994); see also 5 M.R.S.A. § 4682 (Pamph. 2000). In Jenness, 637
A.2d at 1158, the Law Court held that a State is not a person within the meaning of .
the MCRA. Trooper Kaspereen is also not a “person” for purposes of the MCRA
because the suit against him in his official capacity is “no different from a suit
against the State itself.” Will, 491 U.S. at 71. Therefore, the MCRA claims against
both the State and Trooper Kaspereen in his official capacity must be dismissed.
Citing Hayden v. Grayson, 134 F.3d 449, 456 (1st Cir. 1998), the plaintiff argues
that there are two exceptions to immunity for governmental ‘entities: (1) if the
governmental entity’s policy is the “moving force” behind the’ alleged violation;
and (2) where the injury results from a failure to train governmental employees.
Both these exceptions apply only to local governments, however, because they are
“persons” within the meaning of § 1983 and may therefore be sued directly. See

Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 690 (1978). Because this

case is a suit against the State of Maine and not a local government, neither
exception to immunity applies.
II. Maine Tort Claims Act

The Maine Tort Claims Act provides that “all governmental entities shall be
immune from suit on any and all tort claims seeking recovery of damages. When
immunity is removed by this chapter, any claim for damages shall be brought in
accordance with the terms of this chapter.” 14 M.R.S.A. § 8103 (1980) (emphasis
added). The statutory exceptions to governmental immunity are set forth in 14

M.R.S.A. § 8104-A (Supp. 2000). That section permits governmental liability for
negligent acts or omissions in (1) its ownership, maintenance or use of vehicles,
machinery and equipment; (2) the construction operation or maintenance of any
public buildings; (3) the discharge of pollutants; and (4) its performance of road
construction, street cleaning or repair. Id. The statute does not provide an exception
to the State’s immunity for the stop, detention or search of a motorist or a motor

vehicle.

The entry is

Defendants’ motion to dismiss the complaint in its entirety as against the
State of Maine is GRANTED.

Defendants’ motion to dismiss Counts I, II, IIJ and V of the plaintiff's
complaint as against Trooper Kaspereen in his official capacity is GRANTED.

Dated at Portland, Maine this 6th day of April, 2001.

Robert E. Crow
Justice, Superior Court

Date Filed, 05-05-00 CUMBERLAND Docket No. __CV 00-239
i County
!
Action CIVIL RIGHTS
dismissed 4-6-01.
WILLIAM E. LELAND “STATE GF -MAENE, KEVIN CURRAN
ROBERT FLINT
MICHAEL KASPEREEN
VS.
Plaintiff's Attorney Defendant’s Attorney
LEONARD I. SHARON ESQ 782-3275

PO BOX 3130, AUBURN ME 04212

LEANNE ROBBIN, AAG (STATE & TROOPER KASPERI
6 STATE HOUSE STATION CURRAN & FLINT)
AUGUSTA, MAINE 04333-0006

626-8800

Date of
Entry
2000
May 9 Received 05-05-00:
Complaint Summary Sheet filed.
"oo Complaint and Request for Jury Trial filed.
noo" Jury Fee $300.00 PAID.
June 07 Received 06/07/00:
Defendant's Motioh to Dismiss filed.
mots Memorandum of Law in Support of Motion to Dismiss State of Maine and
Trooper Michael Kaspereen in His Official Capacity filed.
yom Defendant Michael Kaspereen's Answer to Complaint filed.
June 12 Received 06-09-00:
Summons filed showing officer's return of service on May 22, 2000 upon de-
fendant, Michael Kaspereen,
. Summons filed showing officer's return of service on May 19, 2000 upon de-
fendant, State of Maine.
June 26 Received 6-26-00.
Plaintiff's motion to extend time for filing response to defendant's
motion to dismiss filed.
June 28 On 6-28-00:
As to Motion to Extend Time for Filing Response to Defendants Motion to
Dismiss, the motion is hereby Granted for reason set forth therein.
Response is due July 12, 2000. No Objection. (Mills, J.)
Copy mailed to Leonard Sharon and Leanne robbin, Esqs.
July 6 Received 7-5-00.
Plaintif's response to defendant, Kaspereen's, motion to dismiss filed,
Aug. 15 Received 08-15-00:

Acknowledgment filed showing Acceptance of Service on August 3, 2000
upon defendants, Kevin Curran and Robert Flint.
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. -. . . ._ CIVIL ACTION
es» <2 DOCKET NO. CV-00-289

i

ad

WILLIAM LELAND,

Plaintiff,

v. ORDER ON MOTION
FOR SUMMARY JUDGMENT

STATE OF MAINE, MAINE DONALD L GARBRECHI
STATE TROOPERS KEVIN W LIBRARY
CURRAN, ROBERT FLINT and
MICHAEL KASPEREEN, ‘SEP 9 p09

Defendants.

Defendants Kevin Curran, Robert Flint, and Michael Kaspereen filed a_
motion for summary judgment as to all of the counts of the plaintiff’s complaint
asserting they did not interfere with or violate the plaintiff’s constitutional or civil
rights, and they are entitled to both qualified and discretionary immunity. Upon
examination of the defendants’ motion, the plaintiff’s opposition, and the applicable

law, the defendants’ motion will be granted.

BACKGROUND

The plaintiff’s complaint arises out of facts attending a traffic stop made by
Trooper Curran. Trooper Curran first noticed the plaintiff and his associates at a rest
stop where, he testified, he witnessed one of the group - who appeared to have
noticed the trooper - make a motion upon exiting the restaurant, after which the

group returned to the restaurant. Trooper Curran did not include this observation
in his report on the traffic stop. Subsequently, Trooper Curran used radar to assess
the speed of the van driven by the plaintiff and determined that the plaintiff was
traveling approximately 72-75 miles per hour in a zone posted with a maximum
allowable speed of 65 miles per hour. Trooper Curran pulled the plaintiff over. The
plaintiff was driving a van. His three associates, who were driving three separate
motorcycles, also pulled over. Trooper Curran witnessed the plaintiff get out of his
van, and instructed the plaintiff to return to the van, which the plaintiff did.
Trooper Curran questioned the plaintiff and his three associates. The four men
gave conflicting stories about where they were going. According to the plaintiff, this
conflict was attributable to the fact that he had changed his mind about the
destination, but he had not told all of the others. Trooper Curran called for back-up
because of the size of the group, and Trooper Flint arrived shortly thereafter.
Trooper Curran called in an inquiry to the Department of Motor Vehicles (DMV)
and received a response that the plaintiff was a member of the Hell’s Angels
Motorcycle gang and that the plaintiff was confrontational, but received the
additional caveat “Warning, C-I-C violent gang and terrorist organizations filed
information does not furnish grounds for the search or seizure of any individual
vehicle logged.” Trooper Flint interviewed each of the men, and also received
conflicting accounts regarding their destination. Trooper Curran then called for a K-
9 unit, which arrived about an hour after the initial stop. Trooper Flint did not
participate in the decision to call for the K-9 unit, and he did not discuss with

Trooper Curran what observations led to Curran calling for the K-9 unit. The K-9
unit sniffed the four men and “hit” on the plaintiff and one other of the men. The
K-9 unit conducted an “external sniff” of the van. Trooper Curran testified that the
dog indicated the presence of a controlled substance, but the plaintiff testified that
the dog made no indication. The plaintiff denied the troopers access to the van.
The troopers let the dog into the interior, despite the plaintiff’s refusal to consent,
and the dog “hit” on the ashtray and the floor between the front seats. A search
warrant for the van was obtained and a search was conducted, which search resulted
in some marijuana being found. At some point during the stop, the plaintiff said
that he had been near someone smoking marijuana, but claimed in his deposition
that he was joking and that he does not use marijuana.

There are facts in conflict as to whether Trooper Flint conveyed the results of
his questioning to Trooper Curran. During the course of the stop, the plaintiff and
his associates were frisked three times. Once, after the dog had “hit” on the plaintiff
and one other of the men, the other man was asked to pull down his pants while he
was by the side of the road.

The plaintiff brought the subject lawsuit and asserts: a claim for damages
under 42 U.S.C. § 1983 for violation of his Fourth and Fourteenth Amendments
(Count I); a claim for damages under 42 U.S.C. § 1983 for violations of the First and
Fourteenth Amendments (Count II); a claim under the Maine Civil Rights Act, 5
M.R.S.A. § 4681 et seq., for the same behavior complained of in Counts I and II
(Count III); a claim under the Maine Tort Claims Act, 14 M.R.S.A. § 8101 et seq., for

excessive detention, unlawful search of his person, belongings, associates and
vehicle causing humiliation, emotional distress, annoyance, property damage, and
invasion of the plaintiffs right of privacy (Count IV); and a claim under the Maine
Civil Rights Act for unlawful, malicious, and forcible detention and deprivation of
liberty without any authority to do so causing humiliation, annoyance, and mental

anguish (Count V).

DISCUSSION
Summary judgment is appropriate if the record reflects that there is no
genuine issue of material fact and the moving party is entitled to a judgment as a

matter of law. M. R. Civ. P. 56(c); Saucier v. State Tax Assessor, 2000 ME 8, { 4, 745

A.2d 972, 974.
As a preliminary matter, as to Counts | and II, the defendants request

summary judgment to the extent those claims are based on the Maine Constitution,

and on the defendants’ alleged negligence. See Baker v. McCollan, 443 U.S. 137, 146

(1979) (42 U.S.C. § 1983 does not cover official conduct violating only state law); see

also 728 F. Supp. 804, 806 (D. Me. 1990) (negligent conduct cannot support a § 1983

claim). The court agrees that to the extent the plaintiff grounds Counts I and II in

state law and negligence, there is no basis for recovery.

1. Counts I and II - 42 U.S.C. § 1983/Fourth, First and Fourteenth Amendments
““& public official claiming qualified immunity . . . must establish either that

he or she did not violate the plaintiffs rights or that given the state of the law a

reasonable official would not have understood that he [or she] was doing so.’”
Munjoy Sporting & Athletic Club v. Dow, 2000 ME 141, {[ 18, 755 A.2d 531, 539-40

(quoting Andrews v. Dep’t of Envtl. Prot., 1998 ME 198, 7 11, 716 A.2d 212, 217). The

First Circuit, in evaluating a claim of qualified immunity, established the following
sequential analysis:

(1) whether the claimant has alleged the deprivation of an actual
constitutional right; (2) whether the right was clearly established at the
time of the alleged action or inaction; and (3) if both of these questions
are answered in the affirmative, whether an objectively reasonable
official would have believed that the action taken violated that clearly
established constitutional right.

Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 141 (1st Cir. 2001) (citations omitted). This

order of analysis is intended to protect the acting official from having to defend a
lawsuit.) Id. at 142. “A right is clearly established if ‘the contours of the right [are]
sufficiently clear that a reasonable officer would understand that what he is doing

violates that right[; t]he unlawfulness must be apparent in light of preexisting law.”

Munjoy Sporting & Athletic Club v. Dow, 2000 ME 141, { 18, 755 A.2D 531, 540. The

defendants argue that they are entitled to summary judgment because they can
establish that they did not violate the plaintiff’s rights, they did not violate the
plaintiff’s clearly established rights, and that a reasonable official would not have
understood that he was violating the plaintiff’s rights.

A. Violation of the plaintiff’s Fourth Amendment Rights

1 The United States Supreme Court has written that “[a]n officer might
correctly perceive all of the relevant facts but have a mistaken understanding as to
whether a particular amount of force is legal in those circumstances]; i]f the officer’s
mistake as to what the law requires is reasonable, however, the officer is entitled to
the immunity defense.” Saucier v. Katz, 533 U.S. 194 (2001). The same concept is
applicable in the present inquiry.

The defendants crafted their arguments in terms of the different stages of the
traffic stop and investigatory detention. For clarity, the court will analyze the
arguments in the same stages.

1. The initial stop

In general, “the decision to stop an automobile is reasonable where the police

have probable cause to believe that a traffic violation has occurred.” Whren v.

United States, 517 U.S. 806, 810 (1996) (citations omitted). The acting official’s

subjective intent alone “does not make otherwise lawful conduct illegal or
unconstitutional.” Id. at 813. “[P]robable cause justifies a search and seizure.” Id. at
819.

Here, there is no dispute that Trooper Curran used radar to assess the speed of
the plaintiff’s vehicle, and determined that the plaintiff was traveling at between 72
and 75 miles per hour in a zone posted with a maximum allowable speed of 65
miles per hour. There is no dispute that the plaintiff was traveling in excess of 65
miles per hour at the time he was pulled over. There is no dispute that pursuant to
29-A M.R.S.A. § 2074(3-A), a person who operates a vehicle at a speed in excess of 65
miles per hour commits a traffic infraction. Accordingly, the court concludes that
Trooper Curran had probable cause to stop the plaintiff's vehicle, and that the
plaintiff’s Fourth Amendment rights were not violated by the initial stop.

2. The investigative stop (initial detention)
The Law Court has written: “An investigatory stop is valid when it is

‘supported by specific and articulable facts which, taken as a whole and together with
the rational inferences from those facts, reasonably warrant the police intrusion.”

State v. Bolduc, 1998 ME 255, J 5, 722 A.2d 44, 45 (quoting State v. Taylor, 1997 ME 81,

J 9, 694 A.2d 907, 909). A civil violation is sufficient to create such “specific and
articulable facts.” Id. There is no dispute that the plaintiff was traveling in excess of
65 miles per hour at the time he was pulled over. There is no dispute that pursuant
to 29-A M.R.S.A. § 2074(3-A), a person who operates a vehicle at a speed in excess of
65 miles per hour commits a traffic infraction. The initial investigatory detention,
then, was valid. Accordingly, the plaintiff’s Fourth Amendment rights were not

violated by the initial stop.
3. The investigatory stop (the one hour investigative stop, K-9

search)

Where an initial stop is determined to be valid, the legitimacy of continued
detention is evaluated by deciding “whether the actions taken by the officer
following the stop were reasonably responsive to the circumstances justifying the
stop in the first place, as augmented by information gleaned by the officer during the

stop.” United States v. Sowers, 136 F.3d 24, 27 (1st Cir. 1998) (citation omitted); see

also Illinois v. Wardlow, 528 U.S. 119, 126 (2000) (“The Terry stop is a far more
minimal intrusion, simply allowing the officer to briefly investigate further[; i]f the
officer does not learn facts rising to the level of probable cause, the individual must
be allowed to go on his way”). In making this determination, the court is asked to

balance the nature and quality of the intrusion against the importance of the

governmental interests alleged to justify the intrusion. Id. (citing United States v.
Hensley, 469 U.S. 221, 228 (1985)). “The officer must be able to articulate more than
an ‘inchoate and unparticularized suspicion or “hunch”’ of criminal activity.”

Illinois v. Wardlow, 528 U.S. at 123-24 (2000) (quoting Terry v. Ohio, 392 U.S. 1, 27

(1997)); see also United States v. Sokolow, 490 U.S. 1, 8-9 (1989) (“innocent behavior
will frequently provide the basis for a showing of [reasonable suspicion] and . . . in
making a determination of [reasonable suspicion] the relevant inquiry is not
whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that
attaches to particular types of noncriminal acts”) (citation and internal quotations
omitted).

The First Circuit has noted that:

The Supreme Court has directed courts making this inquiry to examine

whether the police diligently pursued a means of investigation that was

likely to confirm or dispel their suspicions quickly, during which time

it was necessary to detain the defendant. A court making this

assessment should take care to consider whether the police are acting in

a swiftly developing situation, and in such cases the court should not

indulge in unrealistic second-guessing.

United States v. Owens, 167 F.3d 739, 749 (1999) (citation and quotation omitted).

In Sowers,” the First Circuit affirmed the district court’s conclusion that the

2 In Sowers, Trooper Curran pulled the defendant over after observing that
the exhaust system was particularly loud, and that there was no front license plate.
Sowers, 136 F.3d at 25. The defendant provided his license, and the registration of
the vehicle, which listed the owner as “Tammy Gayton.” Id. In response to Trooper
Curran’s questioning, the passenger said that she was Tammy Gayton, but admitted
that she had no identification with her. Id. Trooper Curran separated the defendant
and the passenger and questioned them as to the details of their travels, about which
he received conflicting answers. Id. Even after receiving confirmation of the
passenger’s identity, and being informed that the defendant’s license was valid,
Trooper Curran was suspicious and detained them. Id. Trooper Curran requested
permission to search the vehicle, which Tammy Gayton originally denied, but

8
officer’s level of suspicion escalated in response to new information collected during
the course of the valid stop - the passenger’s inability to confirm her identity, the
excessive nervousness of the driver and passenger, and the conflicting stories
offered by the driver and passenger as to the extent, purpose, and details of their
travels. Sowers, 136 F.3d at 27. The district court determined, and the First Circuit
affirmed that, faced with such mounting suspicion, the officer’s continued detention

of Sowers was not a violation of Sowers’ Fourth Amendment rights.> See also

United States v. Sokolow, 490 U.S. 1, 8-9 (1989) (finding reasonable suspicion where

the defendant travelled under an alias, took an evasive path through an airport,

paid in excess of $2000 cash for two airplane tickets, and travelled for 20 hours to

spend 48 hours in Miami). In United States v. Owens, 167 F.3d 739 (1st Cir. 1999), the
First Circuit concluded that the approximately 50 minute wait for the arrival of the

drug dog was not unreasonable where the offciers continued to investigate during

eventually granted when Trooper Curran informed her that he would summon a
narcotics dog to perform a sniff search. Id.

3 The First Circuit wrote:

To sum up, the Supreme Court has cautioned that reasonable
suspicion, like probable cause, is not amenable to technical
formulations that purport to identify the precise types of conduct or sets
of circumstances that will or will not permit a police officer to stop and
detain an individual. To the contrary, the Justices have looked
favorably upon a practical, common sense approach to the issue of
reasonable suspicion. Viewing the facts of this case in a down-to-earth
manner, we conclude that the district court did not err in finding that
[the officer] had adequate justification to prolong the stop beyond the
point at which Sowers produced his papers and thereafter beyond the
point at which [the passenger’s] identity was nominally corroborated.

Sowers, 136 F.3d at 28 (citations omitted).
the wait. Owens, 167 F.3d at 748-49 (based on conflicting answers given by driver

and passenger, the officers called for a drug dog, which took about 50 minutes to
arrive from the airport; additional factors confirming illicit activity occurred after
drug dog was requested).

In this case, Curran asserts that he too had “mounting suspicions” based on
the plaintiff’s membership in a motorcycle gang, the fact that plaintiff prematurely
exited his vehicle (from which Trooper Curran could infer that the plaintiff did not
want him to approach the van interior), and the fact that the plaintiff and his
associates gave conflicting information about their destination. After the call for the
drug dog was made, Troopers Curran and Flint conducted pat down searches on the
plaintiff and his associates, and Trooper Flint also interviewed the men.

On these facts it is not unreasonable to believe that the evidence cited would
be insufficient to justify Trooper Curran’s suspicions, and to justify the continued
detention of the plaintiff while waiting for the drug dog to arrive. The combination
of reported membership in a motorcycle gang and conflicting information as to
destination does not reasonably lead one to the conclusion that illegal activity was
afoot, unlike Sowers where the nervousness of the parties contributed to the
suspicions of the officer. Groups of motorcyclists often go for a ride just to go for a
ride, and the court can conceive that the members of a group would defer to one
member as to route and destination, unlike Sowers, where both parties were in the
same car and yet gave conflicting information.

Assuming that this evidence was insufficient to justify Curran’s “mounting

10
suspicions,” the court concludes that the plaintiff's Fourth Amendment rights were
not so clearly defined in the preexisting law that Officer Curran would have known
that detaining the plaintiff for one hour under these circumstances was a violation
of those rights. Although the printout from the DMV indicated that membership in
a gang was not sufficient to justify a search, the printout did not indicate that the
membership could not be considered as a factor in making the decision to detain. In
addition, according to preexisting law as set out in the Sowers opinion, the fact that
parties traveling together give conflicting information as to details of travel is a
valid factor in deciding to detain the parties. The court cannot conclude that the
difference between the evidence cited in Sowers (inability to confirm passenger
identity, nervousness of detainees, conflicting information) and the evidence in the
present case (membership in motorcycle gang, premature exit from vehicle,
conflicting information) is so clear that Trooper Curran should have been aware
that to detain the plaintiff for one hour was a violation of his Fourth Amendment
rights. Accordingly, the defendants‘ are entitled to qualified immunity as to Count
I.

B. Violation of the plaintiff’s First Amendment rights

The plaintiff argues that the defendants were motivated by a desire to chill
the plaintiff's protected right to associate with whomever he chooses. The plaintiff

cites Tatro v. Kervin, 41 F.3d 9, 18 (1st Cir. 1994) to support the proposition that the

4 Trooper Curran was in charge of the scene and investigation, and was the
primary actor; if his actions are entitled to immunity, Troopers Flint and Kaspereen
are also entitled to immunity.

11
plaintiff need not prove that the motivation to chill the protected right was the sole
motivation of the officers. Tatro, 41 F.3d at 18 (“the plaintiff need not prove that the
defendant’s sole motive was to chill the plaintiff’s protected expression{; t]he
plaintiff need only show that the officer’s intent or desire to curb the expression was
the determining or motivating factor in making the arrest, in the sense that the
"5

officer would not have made the arrest ‘but for’ that determining factor

Under the holding of United States v. Rubio, 727 F.2d 786 (9th Cir. 1984),

when First Amendment protected activity is implicated in a criminal investigation,

the First Amendment inquiry collapses into the Fourth Amendment analysis.°

Rubio, 727 F.2d at 791 (when First Amendment interests would be implicated by a

search, the courts must apply the warrant requirements with “particular exactitude”)

(quoting Zurcher v. Stanford Daily, 436 U.S. 547 (1978)); Burke v. City of Portland,

2000 WL 761799 (D. Me) (in the context of a First Amendment claim, the court asked

5 Compare Whren v. United States, 517 U.S. at 809 (“regardless of whether a
police officer subjectively believes that the occupants of an automobile may be
engaging in some other illegal behavior, a traffic stop is permissible as long as a
reasonable officer in the same circumstances could have stopped the car for the
suspected traffic violation”).

6 In Rubio, the defendants were charged with conspiring to participate in the
conduct of the affairs of the Hell’s Angels Motorcycle Club, an enterprise, through a
pattern of racketeering activity in violation of the RICO statute. Rubio, 727 F.2d at
790. The defendants asserted that warrants, authorizing search and seizure of
“indicia of membership in or association with the Hell’s Angels Motorcycle Club,”
were facially invalid as violative of the defendants’ First Amendment right to free
association. Id. at 791. The United States Court of Appeals for the Ninth Circuit
agreed that membership in the Hell’s Angels was protected by the First
Amendment, but concluded that “[w]hen activity protected by the First Amendment
becomes the subject of a criminal investigation, the protections afforded by the
Fourth Amendment come into play.” Id.

12
only whether the officers had probable cause to arrest the plaintiff); San Jose Charter

of the Hell’s Angels Motorcycle Club v. City of San Jose, 1999 WL 1211672 (N.D. Cal.)

(adopting the holding of Rubio even where the plaintiffs were not criminal suspects

when their houses were searched); United States v. Robinson, 1998 WL 322656 (6th

Cir.) (unpublished) (affirming decision to suppress evidence seized where the only
indicia of criminal activity was membership in a motorcycle gang; the court
specifically noted that there was “no knowledge of [the d]efendant’s criminal history,
. no direct evidence that [the defendant] possessed drugs or weapons... no

nervousness [on the part of the defendant], and . . . [no] inconsistent stories”). To
hold otherwise would be to give additional Fourth Amendment rights based solely
on membership in certain organizations. Therefore, having already concluded that
the defendants are entitled to qualified immunity as to the plaintiff’s Fourth
Amendment claim, the court’s inquiry is complete. The plaintiff's assertion of a
First Amendment violation under the present facts will not lie.
II. Counts II, IV, and V - Maine Civil Rights Act and Maine Tort Claims Act

The plaintiff has also asserted state law claims under the Maine Civil Rights
Act (Counts IIT and V) and the Maine Tort Claims Act (Count IV). The defendants
assert that they are protected by discretionary immunity (Count IV) and qualified
immunity (Counts III and V).

A. Maine Tort Claims Act

Government officials are given immunity for their discretionary acts under

the Maine Tort Claims Act. 14 M.R.S.A. § 8111. “An act qualifies as a discretionary

13
function if the act is essential to the realization or accomplishment of a basic
governmental policy program or objective, and requires the exercise of basic policy
evaluation, judgment, and expertise on the part of the governmental employee

involved.” Selby v. Cumberland County, 2002 ME 80, { 7, 796 A.2d 678, 680 (internal

quotation and citations omitted). The enforcement of traffic laws and criminal drug
laws is a basic governmental objective. Curran’s “duties included enforcement of
the highway traffic laws, and he was called on to exercise his judgment in deciding
what actions to take in enforcement of those laws.” Id. In addition, as Curran’s
suspicions were aroused during the course of the traffic stop, he was called upon to
exercise his judgment in deciding what actions to take in enforcing Maine’s drug
laws.

“A governmental official will not be shielded from liability . . . for actions that
so clearly exceed the scope of he official’s authority that the official cannot be said to
be acting in an official capacity.” Id., 2002 ME 80, { 6 n.5, 796 A.2d at 680. Here, the
court has already concluded that a reasonable officer, in Curran’s position, would
not have understood that what he was doing violated the plaintiff's rights.
Accordingly, the court concludes that Trooper Curran was not acting beyond the
scope of his authority to the extent that he should lose his discretionary immunity.
As a result, the defendants are entitled to discretionary immunity as to the plaintiff's
claim under the Maine Tort Claims Act (Count IV).

B. Maine Civil Rights Act

In Jenness v. Nickerson, 637 A.2d 1152, 1153 (Me. 1994), the Law Court noted

14
that because the Maine Civil Rights Act is patterned after 42 U.S.C. § 1983, the same

qualified immunity analysis that is applicable to § 1983 actions is also applicable to

claims under the Maine Civil Rights Act. See also Hegarty v. Somerset County, 53
F.3d 1367, 1373 n.3 (1st Cir. 1995). Having concluded that the defendants are entitled
to qualified immunity under the plaintiff’s § 1983 claims, the court now agrees with
the defendants that they are entitled to qualified immunity as to the plaintiff’s
claims under the Maine Civil Rights Act. Although not endorsing the actions of
Trooper Curran, the court does not believe that a reasonable officer would have
known that his actions violated the plaintiff’s clearly established rights, as the law
stood at the time of the complained of actions.
The entry is

Defendants’ motion for summary judgment as to Counts I-V is GRANTED.

Dated at Portland, Maine this 6th day of August 2002.

(Lk AL

Robert E. Crowley
Justice, Superior Court

15
Date Filed 05-05-00 CUMBERLAND Docket No. __CV_ 00-289
‘ County

j
Action CIVIL RIGHTS

dismissed 4-6-01.
WLLLIAM E. LELAND —SRASER-OF-MAENE, KEVIN CURRAN
ROBERT FLINT
MICHAEL KASPEREEN
VS.

Plaintiff’s Attorney Defendant’s Attorney
LEONARD I. SHARON ESQ 782-3275 LEANNE ROBBIN, AAG (STATE & TROOPER KASPEREF
PO BOX 3130, AUBURN ME 04212 6 STATE HOUSE STATION CURRAN & FLINT)
AUGUSTA, MAINE 04333-0006
626-8800

(Kevin Curran, Robert

WILLIAM FISHER AAG
LL TS flint, Michael Curran)

6 STATE HOUSE STATIO
AUGUSTA ME 04333 626-8800

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10807219. Public record. Not legal advice.