The opinion
WATHEN, Chief Justice,
with whom CLIFFORD and RUDMAN, Justices, join,
dissenting.
I must respectfully dissent. The Court concludes as a matter of law that there is no genuine issue of fact that defendant police officers acted in bad faith or exceeded the scope of their discretion for purposes of immunity under the Maine Tort Claims Act. I agree and suggest that it is illogical to come to a different conclusion, on the same record, in assessing the legal reasonableness of the officers’ conduct for purposes of determining qualified immunity to a section 1983 claim. Although there are limits to the defense that “I was only following orders,” in my view the Court fails to give appropriate consideration to the fact that the officers were carrying out the directive of those Secret Service Agents who were charged with protecting the President of the United States. Given the existence of those orders, the actions of the local police officers are objectively reasonable, and thus, section 1983 immunity should be afforded.
The record reveals that the “demonstrator area” was established by the Secret Service Agents. The following account, provided by the affidavit of a captain in the Lewiston Police Department, is unchallenged:
[A] Secret Service Agent in charge of advance intelligence, reported at these meetings that he had received information that members of the Maine Chapter of AcL-Up were planning a demonstration in Lewi-ston during the President’s visit. He informed the individuals present that Act-Up was a radical AIDS activist group known for their disruptive tactics. He explained that these tactics included throwing used condoms and blood, biting and spitting at police officers, laying down, en masse, in a roadway blocking traffic (known as a “die-in”), seeking out weaknesses in security in order to penetrate safety zones, and generally utilizing other similar tactics so as to create confusion and disruption at civic event. He further indicated that approximately 1,500 members of Act-Up had recently staged a demonstration in Kennebunkport. It was unknown at the time how many of these demonstrators had remained behind to participate in the Lewiston rally....
[The Agent] also received intelligence that an undetermined number of Bates College students also planned to demonstrate on the day of the President’s visit_
Based on this intelligence the Secret Service established a specific area where dem *103 onstrators would be allowed to congregate and protest....
Although there may be a genuine issue of fact whether the chief of the Lewiston Police Department was instrumental in determining the precise location of the demonstration area, that fact is not relevant and there can be no doubt that the existence and operation of the area was dictated expressly by the Secret Service.
Faced with the competing demands of presidential security and the First Amendment rights of the protestors, a reasonable police officer would not realize that the Secret Service order establishing a demonstration area would violate plaintiffs clearly established rights. The “objective reasonableness” standard is “comparatively generous to the police in cases where potential danger, emergency conditions or other exigent circumstances are present” and the Supreme Court “intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases.” Roy v. City of Lewiston, 42 F.3d 691, 696 (1st Cir.1994).
I would grant summary judgment in favor of the defendants on plaintiffs section 1983 claim on the basis of qualified immunity.