MCBREAIRTY

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

PATRICIA MCBREAIRTY, as )

Personal Representative of the Estate )

Of Shawn McBreairty, )

)

Plaintiff, )

)

v. ) No. 1:24-cv-00053-JAW

)

BREWER SCHOOL DEPARTMENT, et al. )

)

Defendants. )

ORDER ON PLAINTIFF’S MOTION IN LIMINE TO EXCLUDE

EVIDENCE AND TESTIMONY RELATED TO ADVICE OF COUNSEL AND

FOR PREEMPTIVE JURY INSTRUCTION

In anticipation of trial, the plaintiff filed a motion in limine seeking to limit

references to an advice of counsel defense during trial and in the ultimate jury

instructions. The motion is dismissed without prejudice insofar as it seeks to limit

evidence and testimony about the defense during trial and also to the extent it seeks

to alter the jury instructions because the court will address jury instructions based

on other briefing from the parties.

I. PROCEDURAL BACKGROUND

A. Abridged Procedural History

On February 22, 2024, Shawn McBreairty filed a verified complaint against

Defendants Brewer School Department and Brewer Superintendent Gregg Palmer

(collectively, Defendants) alleging that by threating litigation in response to an article

he authored and posted concerning a transgender student’s access to the girl’s

bathroom at Brewer High School, Defendants violated his First Amendment Rights.

Verified Comp. 42 U.S.C. § 1983 Compl. for Declaratory, Inj. Relief, and Damages at

1, ¶¶ 46-78 (ECF No. 1) (Compl.).1 Shawn McBreairty’s complaint sets fourth three

causes of action; two remain: (1) retaliation against the exercise of First Amendment

rights made applicable to the States under the Fourteenth Amendment, in violation

of the United States Constitution, actionable under 42 U.S.C. § 1983; and (2) a

parallel claim based on the Maine State Constitution, actionable under 5 M.R.S.

§ 4682. Id. ¶¶ 79-101.

On June 3, 2024, Shawn McBreairty died by suicide, Suggestion of Death as to

Pl. Shawn McBreairty at 1 (ECF No. 52). On September 6, 2024, Ms. McBreairty, as

personal representative of Mr. McBreairty’s Estate, (hereinafter, Plaintiff) was

formally substituted as plaintiff. Order Granting Mot. to Substitute Party (ECF No.

58). On May 21, 2025, Plaintiff filed a final pretrial memorandum and served her

initial disclosures. Pl.’s Pretrial Mem. (ECF No. 128).

This case is currently scheduled for trial in March 2026 on the remaining two

counts. Trial List (ECF No. 202). Before the Court now is the Plaintiff’s motion in

limine, seeking to exclude evidence and testimony related to the advice of counsel.

Pl.’s Mot. in Lim. to Exclude Evid. and Test. Related to Advice of Counsel and For

Preemptive Jury Instr. (ECF No. 216) (Pl.’s’ Mot.). On February 23, 2026, the

Defendants submitted their response. Defs.’ Resp. in Opp’n to Pl.’s Mot. in Lim. [ECF

1 The complaint additionally named Brewer High School Principal Brent Slowikowski and

Brewer High School English Teacher Michelle MacDonald as defendants. Mr. Slowikowski has been

dismissed by order of this Court. See Order on Cross Mots. for Summ. J. and Mot. for Rule 56(d) Disc.

at 31 (ECF No. 117) (Order on Cross Mots. for Summ. J.). The Court also granted Ms. MacDonald’s

motion for summary judgment. Order on Mot. for Summ. J. and Mot. for Rule 56(d) Disc. at 8-9 (ECF

No. 118) (Order on Mot. for Summ. J.).

No. 216] “to Exclude Evid. and Test. Related to Advice of Counsel and For Preemptive

Jury Instr.” (ECF No. 221) (Pl.’s Opp’n).

B. The Article

Brewer School Department’s decision to allow students to use the restroom

corresponding to their gender identity, rather than their biological circumstances

stirred up controversy among students and members of the public. Pl.’s Statement of

Material Facts (ECF No. 91) ¶¶ 1-4 (PSMF), Sch. Defs.’ Opp’n Statement of Material

Facts (ECF No. 102) ¶¶ 1-4 (DRPSMF). Shawn McBreairty wrote about the

controversy. PSMF ¶ 11; DRPSMF ¶ 11; Statement of Material Facts of Defs. Brewer

Sch. Dept., Gregg Palmer, and Brent Slowikowski in Support of Mot. for Summ. J.

(EC No. 93) ¶ 1 (DSMF); Pl.’s Opposing Statement of Material Fact (ECF. No. 105)

¶ 1 (PRDSMF). After reviewing evidence, speaking to witnesses, and doing research,

on February 12, 2024, Mr. McBreairty published “Girl’s Bathrooms are Not ‘Safe

Spaces’ When Males are Present” on the website [your]NEWS (hereafter “the

Article”). Compl., Attach. 3, Ex. 3 Article (McBreairty Article); PSMF ¶ 13; DRPSMF

¶ 13. In the Article, Mr. McBreairty expressed his opinions about the underlying

facts and his concerns about what was happening at Brewer High School. PSMF

¶ 14; DRPSMF ¶ 14.

The Brewer School Department decided to try to get Mr. McBreairty to take

down the portions of the Article that it believed qualified as defamatory or invaded

the privacy rights of its students. PSMF ¶¶ 27-29; DRPSMF ¶¶ 27-29. The School

Department requested that its counsel send Mr. McBreairty an email. PSMF ¶ 27;

DRPSMF ¶ 27.

On February 13, 2024, Attorney Melissa Hewey, counsel for the Brewer School

Department, sent Mr. McBreairty an email. Compl. Attach. 5, Ex. 5 E-Mail from

Melissa Hewey Feb. 13, 2024 (First Hewey Email); DSMF ¶ 8; PRDSMF ¶ 8. That

email stated:

Dear Mr. McBreairty,

I am writing on behalf of our client the Brewer School Department to

demand that you remove certain content from your February 12, 2024

online post entitled “Girl’s Bathrooms Are Not ‘Safe Spaces’ When Males

are Present.” If you are represented by counsel in this matter, please

let me know and I will be glad to direct my correspondence to them.

Although we acknowledge that much of that post contains your opinions

on matters of public concern and recognize your right to express them,

there are certain portions that are not protected because they are either

false or an impermissible invasion of the privacy of minors and have the

effect of bullying and hazing a student and a teacher at the Brewer High

School in violation of Board Policies ACAD, ACAF and JICK and Maine

law. In particular:

First, there is a picture of Brewer High School students in the restroom.

As we understand it, this picture was taken without their consent,

presumably in violation of 17-A M.R.S. Section 511.

Second, there are the following two statements concerning a Brewer

High School student that identifies the student specifically:

[HD], aka “****” is a senior at Brewer High School. He goes

by the pronouns they/them on Instagram and his profile

name is “****.” He’s been allowed by the administration to

continue to enter female spaces for the last three months.

Even after students’ concerns were reported. He once

stated he was “too emo for this school,” but now he is

literally playing dress up, because the school policy allows

it to continue and no one has the balls to stop it.

There have been various social media posts that “... he is

alleged to have touched some female student(s).”

Additional, yet unconfirmed reports state he is accused

online of a “sexual assault” of a fellow student “in late

2021.” There was another post stating “... in September

(sic) of 2022 i (sic) was taken advantage of by [HD].”

Sources state these are “different people” making these

serious claims. Is the school aware of these claims? Some

say they are.

Third, there is a statement concerning the minor child of one of our

teachers:

MacDonald has a transgender child who attends a different

school (Hampden Academy. She’s a girl who pretends to be

a boy on the male track team, usually coming in dead last).

All of the above are invasions of privacy of the students you have

referred to and are causing the Brewer High School student and the

Brewer High School staff member who is the parent of the other student

you refer to severe distress within the meaning of Maine statute, 20-A

M.R.S. Sections 6553 and 6554.

Please remove the referenced material by noon on February 14, 2024

and confirm to me that you have done so or we will be forced to take

further action against you.

M

First Hewey Email at 2 (emphasis in original); DSMF ¶ 9; PRDSMF ¶ 9.

Mr. McBreairty reluctantly and fearfully removed the entire Article from the

website [your]NEWS and published a copy of counsel’s email dated February 13,

2024, on his Twitter/X account. Compl., Attach. 6, Ex. 6 E-mail from Melissa Hewey

February 14, 2025 (Second Hewey Email); PSMF ¶¶ 32, 38; DRPSMF ¶¶ 32, 38;

DSMF ¶ 11; PRDSMF ¶ 11.

On February 14, 2024, counsel for the School Department sent Mr. McBreairty

a second email with the subject line “Brewer Follow-up.” Second Hewey Email at 2;

DSMF ¶ 12; PRDSMF ¶ 12. The full text of the February 14, 2024 email reads:

Dear Mr. McBreairty,

As an initial matter, I want to thank you for complying with our request

to remove the image and certain content from your post in response to

the email I sent you yesterday. I understand that instead, you posted a

screenshot of the email I sent you. What you may not have been aware

of is that my email quoted verbatim the inappropriate content so by

posting the email on X, you have effectively re-posted the inappropriate

content.

Please redact the information regarding the BHS student from your

second picture and the information regarding the staff member’s child

on the third page.

Thank you for your prompt attention to this demand.

Second Hewey Email at 2; DSMF ¶ 13; PRDSMF ¶ 13.

Mr. McBreairty died by suicide on June 3, 2024. DSMF ¶ 16; PRDSMF ¶ 16.

II. THE PARTIES’ POSITIONS

A. The Plaintiff’s Motion

The Plaintiff argues that because the Defendants did not plead the affirmative

defense of advice of counsel, the defense is waived and all evidence relevant to only

that defense should be excluded. Pl.’s Mot. at 2. Further, even if not waived, it is

“insufficient and, therefore, more prejudicial than probative, excludable.” Id. The

Plaintiff seeks a related jury instruction. Id. at 3-4.

B. The Defendants’ Opposition

The Defendants oppose the motion explaining that because Plaintiff seeks to

recover emotional damages against Mr. Palmer in his personal capacity, evidence of

Mr. Palmer’s good faith reliance on counsel is a factor in his decisionmaking and a

relevant factor in the jury’s assessment of the reasonableness of his conduct under

his qualified immunity defense. Defs.’ Opp’n. at 1-4. Defendants oppose Plaintiffs’

proposed jury instruction because standard jury instructions involving expert

testimony is available and “this issue will be addressed more fully in objections to

Plaintiff’s jury instructions.” Defs.’ Opp’n at 5-6.

III. LEGAL STANDARD

A. Relevance

“[E]vidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of consequence in

determining the action.” FED. R. EVID. 401. Courts should generally admit relevant

evidence unless directed otherwise by the United States Constitution, a federal

statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme

Court. FED. R. EVID. 402. However, “[t]he court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” FED. R. EVID. 403.

IV. DISCUSSION

A. Relevance

The Court considers the role of counsel relevant to issues the jury will decide

at trial. Even though the Defendants did not affirmatively raise the advice of counsel

defense, they did raise the defense of qualified immunity. Answer and Affirmative

Defenses of Defs. Brewer School Dept., Gregg Palmer, and Brent Slowikowski at 9

(ECF No. 46). As the Defendants point out, “Plaintiff seeks to recover emotional

distress damages against Defendant Palmer in his individual capacity under section

1983, not only in Palmer’s official capacity, making evidence of his consultation and

reliance on legal counsel a relevant factor in assessing the reasonableness of his

conduct under his qualified immunity defense.” Defs.’ Opp’n at 1. Thus, even if the

Court were to agree with the Plaintiff that the advice of counsel defense is excludable

for failure to raise in the answer,2 testimony and evidence related to the advice of

counsel is not relevant only for that defense. Depositors Tr. Co. v. Slobusky, 692 F.2d

205, 208 (1st Cir. 1982) (“Failure to [plead an affirmative defense] ordinarily results

in the waiver of the defense and the exclusion of all evidence relevant only to it.”)

The Plaintiff also argues that the Defendants could not have even raised the

advice of counsel defense with respect to Defendant Brewer School Department

because municipal entities sued in their official capacities cannot assert good faith

reliance on advice of counsel defense for § 1983 liability and to include evidence of

good faith reliance on advice of counsel “is unduly prejudicial because it risks

confusing the jury with respect to the lawfulness of Defendants’ actions.” Pl.’s Mot.

at 3 (quoting Castaneda v. Cnty. of Suffolk, No. 17-cv-4267 (WFK) (ARL), 2025 U.S.

Dist. LEXIS 223341, at *3-4 (E.D.N.Y. Oct. 31, 2025).

The Court agrees with the Defendants that, as to the individual Defendants

also sued in their individual capacities; the non-binding Castaneda decision is

distinguishable. See Defs.’ Opp’n at 3 (“As a defendant sued individually for damages,

Palmer is entitled to have the jury consider his good faith reliance on counsel as a

factor in his decisionmaking and in the underlying circumstances of the case”).

2 Under Federal Rule of Civil Procedure 8(c),“a party must affirmatively state any avoidance or

affirmative defense.” FED. R. CIV. P. 8(c)(1). “Although ‘advice of counsel’ is not specifically identified

in Rule 8 as an affirmative defense, most courts consider it as such.” Conley-Lepene v. Lepene, No.

2:20-cv-00452-JCN, 2023 U.S. Dist. LEXIS 219597, at *11 (D. Me. Dec. 11, 2023) (quoting 21 CHARLES

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1271 n.45 Affirmative

Defenses—Defenses Not Mentioned in Rule 8(c) (4th ed. 2023)).

As to the municipal Defendant Brewer School Department, assuming that it

may not assert reliance on advice of counsel as a defense, this would not mean that

the evidence is inadmissible, since it is admissible as against Mr. Palmer. When

evidence is properly admissible against one but not both defendants, the common

response is a limiting instruction, not exclusion. Accordingly, the Court dismisses

without prejudice the Plaintiff’s motion seeking to exclude testimony and evidence

about the advice of counsel.

B. Jury Instructions

To the extent that the Plaintiff seeks particular jury instructions, the Court

dismisses the Plaintiff’s motion without prejudice. The Court agrees with the

Defendants that “this issue will be addressed more fully in objections to Plaintiff’s

jury instructions.” Defs.’ Mot. at 5. Accordingly, the Court defers on this issue of jury

instructions and dismisses the related portions of Plaintiff’s motion without

prejudice.

V. CONCLUSION

The Court DISMISSES without prejudice Plaintiff’s Motion in Limine to

Exclude Evidence and Testimony Related to Advice of Counsel and for Preemptive

Jury Instruction (ECF No. 216).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 20th day of March, 2026