CANTRELL

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

BRICE CANTRELL, )

)

Plaintiff, )

)

v. ) 2:24-cv-00246-SDN

)

NATHAN DAY & )

PAIGE MICHAUD, )

)

Defendants. )

ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Plaintiff Brice Cantrell, proceeding pro se, sued Brunswick Police Officers Nathan

Day and Paige Michaud (“Defendants”), asserting various violations of his constitutional

rights.1 ECF No. 1. Defendants now move for summary judgment, contending there are

no disputes of material fact and they are entitled to judgment in their favor. ECF No. 60.

For the reasons that follow, Defendants’ motion is GRANTED IN PART and DENIED

IN PART. Mr. Cantrell’s claim of First Amendment retaliatory arrest arising from the

incident on the highway may proceed. All other claims against Defendants are dismissed.

BACKGROUND2

Officers Day and Michaud are patrol officers with the Brunswick Police

Department and are responsible for traffic regulation and preliminary investigations,

1 The Court previously dismissed the Town of Brunswick, the Brunswick Police Department, Brunswick

Police Officer Paul Hansen, and Brunswick Chief of Police Scott Stewart as defendants in this case. See ECF

Nos. 21, 42.

2 Pursuant to the Local Rules, facts in a support statement of material facts, if supported by record citations,

will be deemed admitted unless properly controverted. D. Me. Loc. R. 56(f). Because Mr. Cantrell failed to

supply an opposing statement of facts and did not “admit, deny, or qualify” the moving parties’ facts, D. Me.

Loc. R. 56(c)(1), and because Defendants have adequately supported their material facts with record

citations, the Court deems the facts in Defendants’ Statement of Material Facts (“SMF”), ECF No. 59, to be

admitted. See Allstate Prop. & Cas. Ins. Co. v. Jones, 704 F. Supp. 3d 253, 254 n.1 (D. Me. 2023). As such,

the Court draws the factual background from Defendants’ SMF.

among other tasks. Defendants’ Statement of Material Facts (“SMF”) ¶ 4. In late 2022 and

early 2023—the time period immediately preceding the events at issue in this case—

Officers Day and Michaud repeatedly observed Mr. Cantrell becoming more agitated and

erratic, and they feared his mental health was deteriorating. Id. ¶¶ 13, 16. The officers

often encountered Mr. Cantrell because he frequently films police conducting public

arrests in and around Brunswick, Maine. See id. ¶ 11. Mr. Cantrell had five encounters

with the officers which form the basis of his claims here.

I. June 23, 2023

On June 23, 2023, Mr. Cantrell followed police officers to a motor vehicle crash on

Interstate I-295 in order to film the encounter. SMF ¶ 19. Officer Day responded to the

crash and observed Mr. Cantrell walking along the side of the highway toward the crash

scene. Id. ¶ 26. Officer Day left the scene and later found Mr. Cantrell standing by his

truck in a nearby parking lot. Id. ¶¶ 36–37. Officer Day approached Mr. Cantrell and

asked for identification, which Mr. Cantrell was reluctant to provide. Id. ¶¶ 38–39. Officer

Day explained Mr. Cantrell had violated state law by walking on the side of the highway,

which disallows pedestrian use. Id. ¶ 40. During this conversation, Mr. Cantrell was

holding his phone and attempting to film the encounter. SMF ¶¶ 43–44. Due to his

unwillingness to provide his identification and his growing agitation, and Officer Day’s

prior knowledge of and observations of Mr. Cantrell, Officer Day placed Mr. Cantrell in

handcuffs and put his phone on the truck bed. Id. ¶¶ 45–47. After a few minutes of

restraint, Mr. Cantrell informed Officer Day that he had had surgery on both of his

shoulders and the handcuffs were causing him pain. Id. ¶ 53. Officer Day “made the

decision to keep Plaintiff in handcuffs” because of Mr. Cantrell’s perceived volatility and

because Officer Day was the sole officer at the scene.3 Id. ¶ 55. In total, Mr. Cantrell was

handcuffed for approximately twelve minutes. Id. ¶ 69. Officer Day eventually wrote Mr.

Cantrell a citation for walking on the highway. Id. ¶ 61. While doing so, Officer Day stated,

“You’re getting a citation today for being on a limited access highway as a pedestrian.

You’re out on 295 filming.” ECF No. 57-1 at 15:32–15:41 (police dashcam footage). Mr.

Cantrell asked afterwards, “Why did you take my phone from me? All I wanted to do was

start recording and then I would gladly gave you [my identification],” to which Officer

Day replied that Mr. Cantrell had been aggressive and was not complying with orders. Id.

at 16:05–16:25.

II. October 25, 2023

On October 25, 2023, Officer Michaud observed a gray Chevrolet truck, which she

knew to belong to Mr. Cantrell, with a defective driver’s-side headlight and conducted a

traffic stop. SMF ¶¶ 76–77. Mr. Cantrell, who was driving the truck, was initially unwilling

to provide his license and registration and stated he did not want to participate in Officer

Michaud’s “racketeering.” Id. ¶ 79. He eventually complied with her request for

documents and Officer Michaud issued him a traffic citation. Id. ¶¶ 80–86. Mr. Cantrell

subsequently contested the citation, and on January 11, 2024, a Violations Bureau Judge

found he had committed the violation as charged. Id. ¶ 87.

III. December 17, 2023

On December 17, 2023, Mr. Cantrell followed police officers—one of whom was

Officer Day—to a domestic disturbance involving a vehicle parked in a business parking

lot in Brunswick. SMF ¶¶ 91–95. In order to film the police encounter, Mr. Cantrell parked

3 Another officer arrived on the scene several minutes after Mr. Cantrell was handcuffed in order to support

Officer Day. SMF ¶ 56.

his car in front of an adjacent business, VIP Tires & Service, and got out of his vehicle to

approach the officers. Id. ¶ 95. A VIP employee came out of the building and flagged down

Officer Day to request that the police issue Mr. Cantrell a no-trespass warning because he

was parked in their lot when he was not a business customer. Id. ¶¶ 103–06. Officer Day

wrote the trespass warning and gave it to Mr. Cantrell. Id. ¶ 109.

IV. April 7, 2024

On April 7, 2024, Mr. Cantrell parked in the parking lot at the Brunswick Police

Station and walked down the street. SMF ¶ 114. When he returned to his car

approximately ten minutes later, Officer Michaud came outside and explained that station

parking was reserved only for those people utilizing police services. Id. ¶¶ 116–17. Mr.

Cantrell asserted he was allowed to park wherever he wanted because of his “Fourth

Amendment rights.” Id. ¶ 120. Officer Michaud gave him a verbal warning for his parking

and he left. Id. ¶ 121.

V. June 3, 2024

On June 3, 2024, Officer Day observed a black Jeep with a broken passenger-side

taillight drive by while he was conducting a traffic stop of another vehicle. SMF ¶ 130.

After completing the traffic stop, Officer Day came upon the Jeep again farther down the

road and pulled it over. Id. ¶¶ 132–34. Mr. Cantrell was driving the Jeep and complied

with Officer Day’s requests for license and registration. Id. ¶ 135. Officer Day issued Mr.

Cantrell a citation for a defective taillight, which Mr. Cantrell later contested. Id.

¶¶ 136–37. On August 21, 2025, a Violations Bureau Judge found Mr. Cantrell had

committed the violation as charged. Id. ¶ 137.

ANALYSIS

Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine”’ if the evidence would permit a

reasonable jury to resolve the issue in favor of the non-moving party. Taite v. Bridgewater

State Univ., Bd. of Trs., 999 F.3d 86, 93 (1st Cir. 2021). A fact is “material” if it has the

potential to affect the outcome of the case. Id. The Court “review[s] the record in the light

most favorable to the nonmoving party, and . . . draw[s] all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers, 844 F.3d 358, 360 (1st

Cir. 2016). Because Mr. Cantrell is pro se, the Court construes his filings liberally. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a litigant’s pro se status does not

excuse compliance with applicable substantive and procedural requirements. See Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

Although Mr. Cantrell’s pleadings are not models of clarity, he asserts two

constitutional claims under 42 U.S.C. § 1983.4 First, he claims Defendants violated his

Fourth Amendment rights by unlawfully detaining him without probable cause and using

excessive force when they handcuffed him. See ECF No. 25 at 3. Second, he alleges First

Amendment retaliation, contending the encounters with Defendants and subsequent

citations were in retaliation for his First Amendment–protected right to film police in

4 The Court previously granted Mr. Cantrell leave to amend his complaint. See ECF No. 42 at 9–10. Although

he did not file a First Amended Complaint on the docket, where, as here, a plaintiff is proceeding pro se, the

Court “endeavor[s], within reasonable limits, to guard against the loss of pro se claims due to technical

defects.” Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 20 (1st Cir. 2004). As the Court previously found,

Mr. Cantrell’s first proposed amended complaint, see ECF No. 25, is clearer than his original complaint and

provides more detail regarding the allegations against Officers Day and Michaud, see ECF No. 42 at 9. The

Court thus treats his proposed first amended complaint, ECF No. 25, as operative for purposes of this

motion.

public. See id. Defendants deny any constitutional violation and invoke qualified

immunity.

I. Fourth Amendment Claims

Mr. Cantrell asserts Officer Day violated the Fourth Amendment during the June

23, 2023, highway incident by using excessive force when handcuffing him and by

conducting an unreasonable seizure. Defendants respond that both claims fail as a matter

of law and that qualified immunity applies.

A. Excessive Force

An excessive force claim under the Fourth Amendment requires a showing that

“the defendant employed force that was unreasonable under all the circumstances.”

Morelli v. Webster, 552 F.3d 12, 23 (1st Cir. 2009). The “reasonableness” inquiry is

objective and asks whether the officer’s actions were “objectively reasonable” in light of

the facts and circumstances confronting them, without regard to any intent or motivation.

Graham v. Connor, 490 U.S. 386, 397 (1989).

Mr. Cantrell’s excessive force claim rests on his statement to Officer Day that

handcuffing him with his hands behind his back hurt his shoulders because he had

recently had surgery on them. ECF No. 57-1 at 04:40–04:50. The Supreme Court has

recognized the general principle that force violates the Fourth Amendment if it is

“excessive under objective standards of reasonableness.” Saucier v. Katz, 533 U.S. 194,

202 (2001), abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

When qualified immunity is invoked, however, the Court asks whether the plaintiff’s

clearly established right was violated under “the specific context of the case, not as a broad

general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quotation

modified).

Two First Circuit decisions guide this analysis. In Hunt v. Massi, the plaintiff

requested that officers handcuff him in front rather than behind his back because a recent

surgery caused pain. 773 F.3d 361, 368 (1st Cir. 2014). The Court framed the issue as

whether, at the time of his arrest in 2011, the plaintiff had a clearly established right to

front-handcuffing when it would not have been obvious to a reasonable officer that his

condition prevented him from placing his hands behind his back. Id. The Court rejected

the excessive force claim, observing that no case held that “ignoring an uncooperative

suspect’s claim of invisible injury (such that handcuffing could be harmful) made during

the course of handcuffing constituted excessive force.” Id. at 370 (quoting Beckles v. City

of N.Y., 492 Fed. App’x 181, 183 (2d Cir. 2012) (modifications in original)). The same

reasoning applies here. A reasonable officer in Officer Day’s position would not have

understood that handcuffing Mr. Cantrell behind his back constituted excessive force,

particularly given that Mr. Cantrell did not report pain until several minutes after the

officer applied the handcuffs. See ECF No. 57-1 at 03:04–04:40.

In Calvi v. Knox County, the First Circuit rejected a plaintiff’s excessive force claim

by finding it was “[s]tandard police practice” to handcuff a person with hands behind the

back, the officer’s decision not to deviate from that practice was a “judgment call,” and

the restraint lasted no longer than reasonably necessary to effectuate arrest. 470 F.3d 422,

428 (1st Cir. 2006). Here, the record shows that Officer Day followed standard

handcuffing procedure. See ECF No. 60 at 23. Officer Day maintained the handcuffs only

until backup arrived and the scene stabilized. Moreover, the First Circuit has rejected

handcuffing as excessive where the officer is aware of “recent criminal history” of the

individual and “encounter[s] some admitted resistance.” Hunt, 773 F.3d at 370. Here,

Officer Day knew of Mr. Cantrell’s recent escalating mental health concerns and his prior

history with police and reasonably considered those facts in assessing officer safety

without another officer on the scene. ECF No. 60 at 23.

Thus, on this record, no reasonable jury could find that Officer Day’s use of force

was objectively unreasonable, nor that it violated clearly established law. Defendants’

motion for summary judgment as to the excessive force claim is GRANTED.

B. Unreasonable Seizure

Mr. Cantrell contends the decision to detain him and place him in handcuffs

constituted an unreasonable seizure in violation of the Fourth Amendment. ECF No. 25

at 3. Defendants respond that Mr. Cantrell’s detention was akin to a Terry stop and was

necessary to issue a citation for walking on the highway. ECF No. 60 at 25.

A Terry stop “permits officers to stop and briefly detain a person for investigative

purposes, and diligently pursue a means of investigation likely to confirm or dispel their

suspicions quickly.” United States v. Trueber, 238 F.3d 79, 91–92 (1st Cir. 2001)

(quotation modified). A brief investigatory detention under Terry does not violate the

Fourth Amendment if the officers possess a “reasonable and articulable suspicion” of past

or present criminal activity. United States v. McCarthy, 77 F.3d 522, 529 (1st Cir. 1996).

However, “[a] valid investigatory stop can become an unconstitutional interference with

a suspect’s Fourth Amendment rights as police conduct becomes overly intrusive and

amounts to an arrest.” Shah v. Holloway, Civ. No. 07-10352, 2009 WL 2754406, at *9

(D. Mass. Aug. 20, 2009). The relevant question is whether the encounter involved “a

formal arrest or restraint on freedom of movement of the degree associated with a formal

arrest.” United States v. Maguire, 359 F.3d 71, 77 (1st Cir. 2004) (quotation modified).

The undisputed record, including the police dashcam footage, shows that Officer

Day requested Mr. Cantrell produce his identification. See ECF No. 57-1 at 02:30–02:34.

Instead of complying, Mr. Cantrell used his phone and attempted to record the encounter.

Id. at 02:44–03:04. Officer Day reasonably construed Mr. Cantrell’s behavior as a refusal

to abide by officer instructions and informed Mr. Cantrell he would be handcuffed. He

also stated that the restraint was not an arrest. Id. at 05:10–05:25. He kept Mr. Cantrell

in handcuffs for approximately twelve minutes, including several minutes after backup

arrived.

“[T]he use of handcuffs in the course of an investigatory stop does not

automatically convert the encounter into a de facto arrest.” United States v. Acosta-Colon,

157 F.3d 9, 18 (1st Cir. 1998) (quotation modified). Officers may use such measures if they

reasonably believe they are necessary to protect officer safety. Id. To justify the use of

handcuffs during a Terry stop, the government must identify specific facts or

circumstances that could support a reasonable belief that such restraints were necessary

to carry out the stop without exposing officers, the public, or the suspect to undue risk.

Id. at 19. Here, Defendants point to Mr. Cantrell’s noncompliance with requests to provide

identification, his increasing agitation, and his recent mental health struggles as indicia

of his potential risk to officer safety. See ECF No. 60 at 26. These facts justify the use of

handcuffs during the investigatory stop and do not, without more, convert the encounter

into a de facto arrest.

In any event, even if the encounter rose to the level of an arrest, probable cause

existed. Probable cause arises when the facts and circumstances within the officer’s

knowledge would warrant a prudent person in believing that the suspect has committed

or is committing an offense. See Beck v. Ohio, 379 U.S. 89, 91 (1964). “If an officer has

probable cause to believe that an individual has committed even a very minor criminal

offense in his presence, he may, without violating the Fourth Amendment, arrest the

offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). Officer Day reasonably

believed Mr. Cantrell had violated the law by walking on the highway where pedestrians

were prohibited. Any resulting arrest was therefore lawful at its inception, and Mr.

Cantrell’s Fourth Amendment claim fails as a matter of law. Defendants’ motion for

summary judgment as to the unreasonable seizure is GRANTED.

II. First Amendment Retaliation Claims

To establish liability under section 1983, a Plaintiff must establish “(1) the

challenged conduct was attributable to a person acting under color of state law; and (2)

the conduct deprived the plaintiff of rights secured by the Constitution or law of the

United States.” Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145, 151–52 (1st Cir. 2006). The

First Amendment “prohibits government officials from subjecting an individual to

retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v.

Moore, 547 U.S. 250, 256 (2006); see U.S. Const. amend. I. To survive summary

judgment on a First Amendment retaliation claim, a plaintiff must produce evidence that

he engaged in protected conduct, suffered an adverse action, and that the protected

conduct was a “substantial or motivating factor” in the adverse action. Gattineri v. Town

of Lynnfield, 58 F.4th 512, 514 (1st Cir. 2023).

A. Traffic Citations

The Court first addresses the two instances in which Defendants issued Mr.

Cantrell traffic citations for malfunctioning vehicle lights.5 To sustain a First Amendment

retaliation claim based on a retaliatory prosecution theory, Plaintiff must show the

5 The Court assumes without deciding that a traffic citation constitutes a form of adverse action. See, e.g.,

Maddison v. City of Northampton, 533 F. Supp. 3d 39, 44 (D. Mass. 2021) (considering a traffic stop and

citation to be a form of retaliation for purposes of the First Amendment).

absence of probable cause for the criminal charge. See Gericke v. Begin, 753 F.3d 1, 6 (1st

Cir. 2014).

The undisputed factual record shows that on October 25, 2023, Officer Michaud

observed Mr. Cantrell’s vehicle with a broken headlight, conducted a traffic stop, and

issued him a citation. The record, including dashboard camera footage, see ECF No. 57-4,

contains no evidence that Mr. Cantrell was filming police at the time of the stop. Mr.

Cantrell identifies no evidence from which a reasonable jury could find that, absent a

retaliatory motive, Officer Michaud would have declined to enforce the traffic violation.

See United States v. Beauregard, No. 18-CR-00192, 2019 WL 2619530, at *7 (D. Me. June

26, 2019) (“Maine law gives a law enforcement officer the right to stop a vehicle if the law

enforcement officer ‘has reasonable and articulable suspicion to believe that a violation

of law has taken or is taking place.’”) (quoting 29-A M.R.S. § 105(1))); 29-A M.R.S. § 1904

(Maine headlight law). Accordingly, Mr. Cantrell fails to establish causation with respect

to the October 25 citation.

The second citation fares no better. The record, including dashcam footage, shows

without dispute that Mr. Cantrell’s taillight was not functioning when Officer Day stopped

him on June 3, 2024. See ECF No. 57-8; 29-A M.R.S. § 1905 (Maine rear lights law).

Although Mr. Cantrell’s own video footage, which Defendants submitted as part of the

record, shows that he filmed an earlier, unrelated traffic stop involving Officer Day, see

ECF No. 57-7, the undisputed record establishes that the later stop occurred at a different

location and after some interval of time.

The Court recognizes that Mr. Cantrell has a protected First Amendment right to

film police activity in public, subject to reasonable restrictions. See Gericke, 753 F.3d at

8. Although the precise timing between these events is unclear, that ambiguity does not

alter the analysis. The dispositive question in a retaliatory prosecution claim is whether

probable cause supported the charge. See Lozman v. Riviera Beach, 585 U.S. 87, 97

(2018). If probable cause existed, “the case ends.” Id. While prior negative interactions

between a plaintiff and an officer may permit a weak inference of retaliatory motive, the

undisputed facts here establish probable cause and provide no meaningful evidence of

retaliation. The dashcam footage confirms a clear equipment violation and the stop was

separated in both time and location from Mr. Cantrell’s protected activity. Accordingly,

Officer Day had reasonable suspicion to conduct the stop, and no reasonable jury could

find that Mr. Cantrell’s protected activity was the substantial and motivating cause of the

citation.6 Defendants’ motion for summary judgment on these two claims is GRANTED.

B. Parking Lot Warning

On April 7, 2024, Officer Michaud issued Mr. Cantrell a verbal warning instructing

him not to park in the police station parking lot unless he was actively conducting

business with the police. Mr. Cantrell does not allege that Officer Michaud issued a

citation, towed his vehicle, or otherwise took adverse action against him. Because Mr.

Cantrell fails to identify any adverse action, his First Amendment retaliation claim based

on this incident cannot proceed. See Gattineri, 58 F.4th at 514 (requiring adverse action

to sustain a First Amendment retaliation claim). Accordingly, the Court GRANTS

Defendants’ motion for summary judgment on this claim.7

6 Because the Court concludes Mr. Cantrell’s claims fail for lack of causation, it need not address Defendants’

argument that his claims are barred by Heck v. Humphrey. See ECF No. 60 at 10–11 (citing Heck v.

Humphrey, 512 U.S. 477 (1994)).

7 Because the Court grants summary judgment in favor of Defendant on both claims involving Officer

Michaud, the Court dismisses her as a defendant.

C. No-Trespass Warning

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting

under color of state law deprived him of a right, privilege, or immunity secured by the

Constitution or federal law. See Ahern v. O’Donnell, 109 F.3d 809, 815 (1st Cir. 1997). The

Constitution does not confer a protected right to patronize a private business. Cf. City of

Chi. v. Morales, 527 U.S. 41, 53 (1999) (recognizing “the freedom to loiter for innocent

purposes [on public property] is part of the ‘liberty’ protected by the Due Process Clause

of the Fourteenth Amendment”). Accordingly, the Court does not treat a no-trespass

warning issued by police at the request of a private party as a criminal charge for First

Amendment purposes, nor does it find that such a warning, without more, infringes

constitutional rights. Moreover, the warning was issued at the business employee’s

behest, and Officer Day repeatedly stated he was issuing it only because the employee

asked, not because he personally decided to issue it. See ECF No. 57-5. On these facts, Mr.

Cantrell fails to establish that his protected activity was the but-for cause of the no-

trespass warning and therefore does not state a cognizable First Amendment claim. The

Court GRANTS Defendants’ motion for summary judgment on this claim.

D. Walking on Highway

On June 22, 2023, Mr. Cantrell walked on the side of Interstate I-295 ostensibly to

film police responding to a crash. Several police officers at the scene, including Officer

Day, observed Mr. Cantrell walking. See SMF ¶¶ 26, 29. Some time later that same day,

Officer Day located Mr. Cantrell in a parking lot, at which point Mr. Cantrell stated he

wanted to record the encounter on his phone. Id. ¶¶ 42–44. Due to his apparent increasing

volatility and refusal to provide his license and registration, Officer Day did not allow Mr.

Cantrell to use his phone to record their interaction and handcuffed him for twelve

minutes before subsequently issuing him a citation for walking on the highway. Id. ¶¶ 46,

61, 69. In issuing the citation, Officer Day stated, “You’re getting a citation today for being

on a limited access highway as a pedestrian. You’re out on 295 filming.” ECF No. 57-1 at

15:32–15:41. Construing his pleadings liberally, Mr. Cantrell appears to allege the citation

was a retaliatory prosecution and his handcuffing was a retaliatory arrest for observing

the police activity on the highway and for attempting to record his subsequent interaction

with Officer Day. See ECF No. 25 at 3.

1. Retaliatory Arrest

To assert a retaliatory arrest claim, the Plaintiff must establish the protected

activity was a “substantial” or “motivating” factor for the subsequent retaliatory action.

Powell v. Alexander, 391 F.3d 1, 17 (1st Cir. 2004) (quotation modified). According to the

Supreme Court, “because probable cause speaks to the objective reasonableness of an

arrest, its absence will—as in retaliatory prosecution cases—generally provide weighty

evidence that the officer’s animus caused the arrest, whereas the presence of probable

cause will suggest the opposite.” Nieves v. Bartlett, 587 U.S. 391, 402 (2019) (internal

citation omitted).

In order to arrest Mr. Cantrell, Officer Day was required to have probable cause.

Morelli, 552 F.3d at 20. Probable cause to arrest “exists when the facts and circumstances

within the [arresting officer’s] knowledge and of which [he] had reasonably trustworthy

information were sufficient to warrant a prudent person in believing that the defendant

had committed or was committing an offense.” Rivera v. Murphy, 979 F.2d 259, 263 (1st

Cir. 1992) (quotation modified). The undisputed facts indicate Officer Day both

personally observed and received information from other officers that Mr. Cantrell was

walking on the side of the highway when he should not have been. As explained above,

see supra Subsection I.B, probable cause to arrest therefore existed.

The existence of probable cause generally defeats a retaliatory arrest claim subject

to a narrow exception when the plaintiff “presents objective evidence that he was arrested

when otherwise similarly situated individuals not engaged in the same sort of protected

speech had not been.” Nieves, 587 U.S. at 407. To illustrate the concern animating this

so-called Nieves exception, the Supreme Court observed that “jaywalking is endemic but

rarely results in arrest,” and explained that therefore that if “an individual who has been

vocally complaining about police conduct is arrested for jaywalking at such an

intersection, it would seem insufficiently protective of First Amendment rights to dismiss

the individual’s retaliatory arrest claim on the ground that there was undoubted probable

cause for the arrest.” Id. Consistent with this reasoning, the Court in Gonzalez v. Trevino

describes the exception as applying in “circumstances where officers have probable cause

to make arrests, but typically exercise their discretion not to do so.” 602 U.S. 653, 658

(2024). Here, Mr. Cantrell has been vocal about his desire to film police in public.

Although it is not their burden, Defendants admit they can present no data as to how often

people are arrested for walking on the highway because the Maine State Police generally

issues such citations, not the Brunswick Police. See SMF ¶ 72. While Mr. Cantrell

advances confusing factual assertions and does not directly refute Defendants’ statements

of material fact, the Court must construe the evidence in his favor as the nonmoving party.

And at the motion for summary judgment stage, the Court cannot grant judgment for the

moving party if there are genuine disputes of material fact. See Taite, 999 F.3d at 93.

The Nieves exception exists to address the risk that some police officers will use

their authority as a tool to suppress protected speech, rather than to enforce the law. See

Nieves, 587 U.S. at 406. Construed liberally, Mr. Cantrell’s filings and the summary

judgment record—viewed in the light most favorable to him as the nonmoving party—

support the inference that officers treated him differently from similarly situated

individuals who would not have been arrested or detained for their protected speech. On

this record, the Court finds a disputed question of material fact exists as to whether Mr.

Cantrell’s filming—on the highway or later in the parking lot—was a substantial or

motivating factor for his arrest. Mr. Cantrell has thus presented sufficient evidence of a

constitutional violation. See ECF No. 25 at 2 (“I am threatened, to steal my property for

exer[cis]ing my rights to travel, without unr[e]asonable suspic[i]on of a crime, harassing,

because I recorded police.”); id. at 3 (“[A]s officer Day handcuffed brice cantrell i said ‘its

my right to record my arrest’ . . . color of law deprivation of my liberty and first

amendment rights . . . .”).

The Court now turns to Defendants’ qualified immunity argument: whether

qualified immunity shields Defendants because the right at issue was not “clearly

established” at the time of the alleged violation. Reichle v. Howards, 566 U.S. 658, 664

(2012). A right is clearly established if every “reasonable official would have understood

that what he is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

At the time of this incident in June 2023,8 the First Circuit had addressed the

propriety of retaliatory arrest claims under the First Amendment. In Gericke, it held that

filming police is a clearly established First Amendment right. 753 F.3d at 9 (“In the

absence of a reasonable restriction, it is self-evident, based on first principles, that [a

defendant’s] First Amendment right to film police carrying out their duties in public

8 Mr. Cantrell’s complaint asserts the highway incident occurred in June 2024, see ECF No. 25 at 3, but

Defendants’ SMF, which is bolstered by affidavits and dashcam footage and which the Court construes as

true, states it occurred in June 2023, see SMF ¶ 19.

remained unfettered.”). A reasonable officer would have known that citing Mr. Cantrell

in response to his filming would violate his First Amendment right.

The qualified immunity analysis turns on which version of events the factfinder

credits—Mr. Cantrell’s or Defendants’. Under Defendants’ account, a reasonable jury

could conclude that officers arrested Mr. Cantrell solely because he was walking on the

highway in violation of law. Under Mr. Cantrell’s account, however, the sequence of

events is materially different. He asserts that, some time after the crash on the highway,

Officer Day sought him out while Mr. Cantrell was parked in a parking lot and not engaged

in any ongoing offense (in contrast to the traffic stops, where his vehicle had obvious light

defects). When Mr. Cantrell informed Officer Day he wished to film their interaction,

Officer Day placed Mr. Cantrell in handcuffs and did not allow him to set up his phone to

film. See ECF No. 57-1 at 02:37–03:01. Mr. Cantrell disputed that he had violated state

law and asserted he was being unlawfully arrested. See id. at 04:24–04:33; id. at

05:19–05:22 (Cantrell: “I have the right to record you if you’re gonna arrest me.”). Officer

Day also referenced the filming as part of the rationale for issuing the citation. See ECF

No. 57-1 at 15:34–15:41 (“You’re getting a citation today for being on a limited access

highway as a pedestrian. You’re out on 295 filming.”). On this record, a jury could

reasonably find that Mr. Cantrell’s filming of police was a “substantial” or “motivating”

factor in the arrest. Powell, 391 F.3d at 16 (quotation modified).

The Court therefore denies Defendants’ claim of qualified immunity at this stage

of the litigation. Mr. Cantrell’s First Amendment retaliatory arrest claim may proceed,

and the Court DENIES Defendants’ motion for summary judgment on that claim.

2. Retaliatory Prosecution

To establish a causal connection between protected speech and a retaliatory

prosecution, a plaintiff must plead and prove the absence of probable cause for the

underlying prosecution. See Hartman, 547 U.S. at 260–61. “Demonstrating that there

was no probable cause for the underlying criminal charge will tend to reinforce the

retaliation evidence and show that retaliation was the but-for basis for instigating the

prosecution, while establishing the existence of probable cause will suggest that

prosecution would have occurred even without a retaliatory motive.” Id. at 261. Even if

the officer’s retaliatory motive is apparent, that fact alone does not establish that the

officer caused the prosecutor to bring charges that the prosecutor otherwise would not

have pursued. Id. at 263.

As with the traffic citations, the Court presumes without deciding that the citation

for walking on the highway constitutes an adverse action for the purposes of a retaliatory

prosecution claim on the ground that it is an official government action that could “have

a chilling effect on the [plaintiff’s] exercise of First Amendment rights.” Barton v. Clancy,

632 F.3d 9, 29 (1st Cir. 2011); see, e.g., Maddison v. City of Northampton, 533 F. Supp.

3d 39, 44 (D. Mass. 2021) (considering a traffic citation to be an adverse action in a

retaliatory prosecution case); Snoeyenbos v. Curtis, 439 F. Supp. 3d 719, 734 (E.D. Va.

2020) (same). Although a genuine issue of material fact exists as to whether Officer Day

was motivated by retaliatory animus, the undisputed existence of probable cause for Mr.

Cantrell’s walking on the side of the highway in violation of state law forecloses his

retaliatory prosecution claim as a matter of law. See Hartman, 547 U.S. at 265–66

(“Because showing an absence of probable cause will have high probative force, and can

be made mandatory with little or no added cost, it makes sense to require such a showing

as an element of a plaintiff’s case, and we hold that it must be pleaded and proven.”); cf.

Waterman v. City of Taunton, 742 F. Supp. 3d 144, 164 (D. Mass. 2024) (denying

summary judgment where “a genuine dispute of fact exists as to whether [police] had

probable cause to arrest [defendant] for disorderly conduct”).

In sum, the Court GRANTS Defendants’ motion for summary judgment as to Mr.

Cantrell’s retaliatory prosecution claim.

CONCLUSION

The Court GRANTS IN PART and DENIES IN PART Defendants’ motion for

summary judgment. ECF No. 60. The Court DENIES Defendants’ motion as to Plaintiff’s

First Amendment retaliatory arrest claim. The Court GRANTS Defendants’ motion as to

all other claims. Officer Michaud is DISMISSED as a defendant.

SO ORDERED.

Dated this 5th day of June, 2026.

/s/ Stacey D. Neumann

UNITED STATES DISTRICT JUDGE