Gericke v . Weare P D , et a l . 11-CV-231-SM 10/15/12 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Carla Gericke, Plaintiff
v. Case N o . 11-cv-231-SM Opinion N o . 2012 DNH 184 Gregory C . Begin; James J. Carney; Joseph Kelley; Brandon Montplaisir; Weare Police Department; and The Town of Weare, New Hampshire, Defendants
O R D E R
In this civil action, Carla Gericke asserts claims under
both the United States Constitution and New Hampshire’s common
law against the Town of Weare, the Weare Police Department, the
department’s Chief (Gregory Begin), and three of its officers:
Lieutenant James Carney, Sergeant Joseph Kelley, and Sergeant
Brandon Montplaisir. Defendants have moved for summary judgment,
asserting that they are entitled to judgment as a matter of law
on each of Gericke’s claims. Gericke objects and has filed a
cross-motion for summary judgment.1
1 After the parties submitted their cross-motions for summary judgment, and following an informal discussion about those pending motions at a pretrial conference, Gericke sought leave to file an amended complaint. The six claims asserted in the amended complaint, reduced from thirty-two, remain essentially unchanged from her original complaint (with one exception). The briefing, and supplemental briefing by the parties is adequate to resolve the summary judgment motions as applied to the remaining claims. For the reasons discussed, defendants’ motions for summary
judgment (documents n o . 19 and 20) are granted in part and denied
in part. Gericke’s motion for summary judgment (document n o . 21)
is denied.
Standard of Review
When ruling on a motion for summary judgment, the court must
“view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party’s favor.” Griggs-Ryan v . Smith, 904 F.2d 1 1 2 , 115
(1st Cir. 1990). Summary judgment is appropriate when the record
reveals “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). In this context, “a fact is ‘material’ if it
potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties’ positions on the issue are supported
by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace
Workers v . Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted).
Nevertheless, if the non-moving party’s “evidence is merely
colorable, or is not significantly probative,” no genuine dispute
as to a material fact has been proved, and “summary judgment may
be granted.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-
2 50 (1986) (citations omitted). The key, then, to defeating a
properly supported motion for summary judgment is the non-
movant’s ability to support his or her claims concerning disputed
material facts with evidence that conflicts with that proffered
by the moving party. See generally Fed. R. Civ. P. 56(c). It
naturally follows that while a reviewing court must take into
account all properly documented facts, it may ignore a party’s
bald assertions, unsupported conclusions, and mere speculation.
See Serapion v . Martinez, 119 F.3d 9 8 2 , 987 (1st Cir. 1997). See
also Scott v . Harris, 550 U.S. 3 7 2 , 380 (2007) (“When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe i t , a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”).
Background
On March 2 5 , 2010, Carla Gericke was arrested for disobeying
a police officer. She was subsequently charged with that crime,
as well as with obstructing government administration, and
unlawful interception of oral communications. Immediately prior
to her probable cause hearing in state court, however, those
charges were dropped and the case was referred to the
Hillsborough County Attorney’s office for presentment to a grand
3 jury. New charges were never filed and no indictment was
returned.
The record, as currently developed, includes many affidavits
and a substantial volume of deposition testimony describing the
events giving rise to Gericke’s civil claims. Not surprisingly,
the parties do not agree on all of the details surrounding
Gericke’s arrest. Nevertheless, they do agree on most of the
legally relevant facts, which are as follows.
On March 2 5 , 2010, at approximately 11:30 PM, Sergeant
Joseph Kelley of the Weare Police Department observed a car
traveling past him at a high rate of speed. Using radar
equipment, he determined that the vehicle was traveling at 47 mph
in a 30 mph zone. He initiated a traffic stop and the vehicle
pulled over to the side of the road, near the Weare Middle
School. A second vehicle, driven by Gericke, pulled in directly
behind Sergeant Kelley’s police cruiser and stopped. Given the
lateness of the hour, the darkness, and the presence of four
unknown people at the scene (two drivers and two passengers),
Kelley understandably found Gericke’s presence to be a
distraction, requiring Kelley to divert his attention from the
vehicle he had stopped. Traffic stops, particularly those
conducted late at night, pose a risk of danger to police
4 officers, and Gericke’s presence at least arguably added to that
potentially dangerous situation.
Sergeant Kelley approached Gericke’s vehicle and instructed
her to leave. Gericke initially resisted, saying she was
traveling with the people whom Kelley had stopped. She
questioned why he had detained them, and, when Sergeant Kelley
informed her that they had been speeding, she interjected herself
into the situation by questioning the validity of the stop.
Eventually, however, she complied — she moved her car from
directly behind Kelley’s cruiser into an adjacent parking area,
where she positioned it parallel to the cruiser, about 30 feet
away.
Sergeant Kelley then turned his attention to the driver of
the other car, Tyler Hanslin. Kelley reports that Hanslin was
verbally abusive, also questioned the validity of the stop, and
commented that it was “bullshit.” Hanslin then made some unusual
movements with his hands around the area of his belt, and
Sergeant Kelley asked him if he had any weapons. Hanslin
disclosed that he was carrying a firearm. Kelley instructed him
to get out of the car, so he could perform a pat-down search.
Hanslin complied, and Kelley removed a Glock 9 mm semi-automatic
handgun from Hanslin’s waistband.
5 Meanwhile, Gericke had exited her car and was standing
behind a small fence that separated her from Sergeant Kelley.
She yelled to him that she was recording his actions and pointed
what Kelley suspected was a camera at him. And, although Gericke
denies i t , Kelley says she shouted words encouraging Hanslin not
to cooperate. See, e.g., Affidavit of Sergeant Joseph Kelley
(document n o . 20-2) at para. 8 (“Ms. Gericke verbally was
encouraging M r . Hanslin not to comply with my motor vehicle stop
and shouted ‘remember our cause.’”). Gericke later explained
that she believed Kelley’s decision to stop Hanslin for speeding
was “bizarre” and said she saw her own role as that of a witness
to the unfolding events, who should document what was
transpiring. Gericke Deposition (document n o . 26-4) at 6 1 , 6 5 .
Curiously, however, Gericke also testified that she knew her
video camera was not working at the time. Nevertheless, she kept
it pointed at Kelley. Id. at 6 8 . Sergeant Kelley responded by
telling Gericke to return to her car. She complied, but rolled
the window down and “kept the camera trained on him.” Id. at 6 4 .
According to Sergeant Kelley, due to Gericke’s continuing
involvement, what had begun as a routine traffic stop had, in his
view, become a potentially dangerous situation. He was in the
presence of four unknown people (at least one of whom had been
carrying a firearm); Hanslin was being less than fully
6 cooperative; Gericke was shouting at him and protesting the stop;
and it was late at night, and he was alone. Accordingly, he
called for assistance. Three members of the Weare Police
Department responded: Lieutenant James Carney, Sergeant Robert
Peterson (not a defendant in this action), and Officer Brandon
Montplaisir. Around the same time, a third civilian car arrived
at the scene. The driver, William Rodriguez, exited the vehicle.
The officers were, then, presented with a late night situation
that involved three vehicles, six unknown people, one (known)
firearm, and a number of people outside of their vehicles.
The responding officers divided their attention among the
three cars. Lieutenant Carney responded to Rodriguez, Sergeant
Kelley returned his attention to Hanslin, Officer Montplaisir
responded to Gericke, and Sergeant Peterson provided general
assistance to the other officers. Before Officer Montplaisir
approached Gericke, Sergeant Kelley told him that Gericke had
been interfering with Kelley’s ability to conduct the traffic
stop and that she may have a video camera. Montplaisir
approached Gericke, identified himself as a police officer, and
asked for her license and registration. Gericke says he was
shouting at her, so she “decided to lock my door and roll my
window up so that I could just talk to him through a crack.”
Gericke Deposition at 7 4 .
7 In response to Officer Montplaisir’s request that she
produce her driver’s license and vehicle registration, Gericke
said, “I’m confused. Is that a lawful order? I’m not driving
the car, I’m parked in a parking lot. I don’t understand why I
would have to give you my driver’s license - my driver’s license
and registration.” Id. at 74-75. Montplaisir explained that,
under state law, she was required to produce that information
and, for a second time, he asked her to do s o . Again, however,
Gericke balked, saying “Are you sure this is a lawful order? I’m
not driving the car, I’m sitting in a parking lot, I don’t see
why I would have to give you my license and registration.” Id.
at 7 5 . See also Id. at 76 (“So twice I said to him are you - you
know, is that a lawful order, why do I have to provide i t , I’m
not driving the vehicle, I’m parked in a parking lot.”). Officer
Montplaisir explained to Gericke that if she did not produce her
license and registration, he was going to place her under arrest
and, if necessary, officers would use force to remove her from
the car. Montplaisir Deposition (document n o . 20-25) at 44-45.
Gericke says she then began to look for her driver’s
license. Gericke Deposition at 7 6 . She claims she “found the
State Farm [insurance] card, and I gave that to him through the
window, and he threw it back in my face,” id. - apparently
through the “crack” that she left in the window when she rolled
8 it u p . At that point, Montplaisir decided that he had given
Gericke sufficient opportunity to comply with his (repeated)
requests for identification, concluded that she was not going to
comply with that directive, and told her that she was under
arrest for disobeying a police officer. He instructed Gericke to
get out of her car. According to Montplaisir, Gericke refused to
exit the vehicle and he again instructed her to do s o . See
Affidavit of Brandon Montplaisir (document n o . 20-11) at para.
10. Eventually, Montplaisir says, Gericke’s passenger persuaded
her to comply and Gericke exited the vehicle. Officer
Montplaisir then placed her under arrest for disobeying a police
officer, handcuffed her, and escorted her to a police cruiser
without incident. Gericke was transported to the police station,
where she was charged with disobeying a police officer, in
violation of N.H. Rev. Stat. Ann. (“RSA”) 265:4. She was also
charged with obstructing a government official, in violation of
RSA 642:1, and unlawful interception of oral communications, in
violation of RSA 570-A:2, I (also known as New Hampshire’s law
against wiretapping and eavesdropping).
It is not entirely clear from the record how the police came
to possess Gericke’s video camera. See generally Plaintiff’s
Memorandum (document n o . 26-1) at 4-5. But, it is undisputed
that they did take it into their possession. According to
9 Gericke, after she was processed at the police station, she asked
unidentified police officers to provide her with a receipt for
the camera. She claims they refused and she was escorted out of
the station.
A criminal probable cause hearing was scheduled for May 2 5 ,
2010. Immediately prior to that hearing, however, the New
Hampshire prosecutor for the Town of Weare, Attorney Catherine
Baumann, “nolle processed the pending charges, and [she] sent the
matter to the Hillsborough County Attorney for presentment to the
Hillsborough County Grand Jury.” Affidavit of Catherine Baumann
(document n o . 20-15) at para. 2 . On November 2 , 2010, police
obtained a warrant, authorizing them to search the contents of
Gericke’s video camera - presumably because the video they
believed Gericke had taken that night might reveal the extent (if
any) to which she obstructed Sergeant Kelley’s ability to conduct
the traffic stop and, perhaps, the conduct that gave rise to
criminal drug possession charges that were filed against Hanslin
and his passenger.2
2 Until her civil deposition, Gericke had not revealed to the officers that her video camera was not functioning on the night in question. S o , when officers applied for the search warrant, they reasonably believed the camera contained evidence of criminal conduct.
10 During the search of the camcorder, digital video files were
located, but could not be opened or viewed. Accordingly, the
camera was sent to the New Hampshire State Laboratory. The lab
encountered the same difficulties and i t , too, was unable to
recover the apparently corrupted video files. But, it appears
that rather than return the camera to the Weare Police
Department, the state lab simply retained it - conduct Gericke
characterizes as the defendants having “left the camera with the
lab.” Plaintiff’s memorandum at 6.
In March of 2011, Gericke filed a motion in state court
seeking return of her video camera. That motion was granted and,
not long thereafter, Gericke’s camera was returned to her by the
state.
Discussion
I. Gericke’s First Amendment Claims.
A. Background
Gericke advances two federal constitutional claims in which
she asserts that she was the victim of retaliatory prosecution
for having engaged in protected First Amendment activities. See
generally 42 U.S.C. § 1983. In count one, she claims defendants
lacked probable cause to charge her with violating New
Hampshire’s wiretapping and eavesdropping statute, RSA 570-A:2,
11 but nevertheless pursued that charge in retaliation for her
having attempted to videotape Sergeant Kelley performing his
official public duties. See generally Hartman v . Moore, 547 U.S.
250, 256 (2006) (“Official reprisal for protected speech offends
the Constitution because it threatens to inhibit exercise of the
protected right and the law is settled that as a general matter
the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including
criminal prosecutions, for speaking out.”) (citation and internal
punctuation omitted). And, she says that because it was clearly
established that police officers cannot arrest citizens for
merely videotaping them while they perform official duties in a
public place, the defendants are not entitled to the protections
afforded by qualified immunity.
In count two, she advances a similar claim, asserting that
defendants charged her with violating the wiretapping statute in
retaliation for having “petitioned the Defendants for a redress
of grievances.” Amended Complaint at para. 2 8 .
According to Officer Montplaisir, he arrested Gericke for
having disobeyed a lawful order of a police officer - that i s ,
for refusing to produce her driver’s license and vehicle
registration when instructed to do s o . Police Report of Officer
12 Montplaisir (document n o . 20-12) at 1 ; Montplaisir Deposition at
4 5 ; Montplaisir Affidavit at para. 1 0 . He informed Gericke of
the same when he took her into custody. Subsequently, when she
was processed at the police station, Gericke was charged with
three crimes: the initial crime of disobeying a lawful order of a
police officer, as well as obstructing a government official
during the course of his duties, and violating New Hampshire’s
law prohibiting wiretapping and electronic eavesdropping.
Gericke focuses on the wiretapping charge, saying defendants’
decision to charge her for having videotaped the officers
undeniably violated her First Amendment rights.
First, Gericke’s arrest for disobeying a police officer was
plainly supported by probable cause and did not violate any of
her constitutional rights. See generally Holder v . Town of
Sandown, 585 F.3d 5 0 0 , 504 (1st Cir. 2009) (discussing probable
cause to arrest); RSA 594:10, I(a) (discussing the circumstance
under which an officer may make a warrantless arrest for a
misdemeanor violation). See also Atwater v . City of Lago Vista,
532 U.S. 3 1 8 , 354 (2001) (“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.”). Officer Montplaisir
was entitled, under New Hampshire law, to ask Gericke to produce
13 her driver’s license and/or vehicle registration. See RSA 265:4,
I(e). See also RSA 263:2 (“[e]very person driving a motor
vehicle shall have his driver’s license upon his person or in the
vehicle in some easily accessible place and shall display the
same on demand of and manually surrender the same into the hands
of the demanding officer for the inspection thereof.”). 3
The record evidence is undisputed. Officer Montplaisir
twice asked Gericke to produce her license and registration. On
both occasions, she refused to comply and, instead, questioned
the lawfulness of his request. See Gericke Deposition at 31
(“The first two times he asked [for my license] I did not
[produce i t ] , because I did not believe it was a legal order
because I was not operating the vehicle.”). Only when threatened
with arrest and forcible removal from her vehicle, did Gericke
give at least the appearance of attempted compliance. See
Gericke Deposition at 7 6 . (“So I actually started looking for my
license. And it was at the time where I had reached over into
the cubbyhole and I took out the - the engine book and stuff, and
3 That Gericke was not actually arrested for having violated RSA 263:2 is not material to the probable cause inquiry. See, e.g., United States v . Jones, 432 F.3d 3 4 , 41 (1st Cir. 2005) (“As the Supreme Court has recently reiterated, however, the probable cause inquiry is not necessarily based upon the offense actually invoked by the arresting officer but upon whether the facts known at the time of the arrest objectively provided probable cause to arrest.”) (citing Devenpeck v . Alford, 543 U.S. 146 (2004)).
14 I found the State Farm card.”). Officer Montplaisir gave Gericke
sufficient opportunity to comply with his request, and, when she
failed to do s o , and offered no plausible excuse for her failure,
he had probable cause to arrest her under state law for
disobeying a lawful order of a police officer.
The critical question presented here is not whether Gericke
was properly placed under arrest - she was - but whether
defendants’ subsequent decision to charge her with violating the
wiretapping statute (allegedly in retaliation for having
ostensibly videotaped the officers) violated her First Amendment
freedoms.
B. Retaliatory Prosecution - Videotaping
In count one of her amended complaint, Gericke asserts that
she “was engaged in lawful First Amendment activities when she
attempted to video - and audio - record Defendant Kelley
performing his public duties in public, and the Defendants
arrested her and charged her with ‘wiretapping’ in retaliation
for exercising those rights.” Amended Complaint at para. 2 4 .
The Court of Appeals for the First Circuit has recognized that it
is clearly established in this circuit that police officers
cannot, consistently with the Constitution, prosecute citizens
for violating wiretapping laws when they peacefully record a
15 police officer performing his or her official duties in a public
area. Glik v . Cunniffe, 655 F.3d 7 8 , 84 (1st Cir. 2011).
Moreover, in this case, the police lacked probable cause to
believe Gericke violated the state law prohibiting wiretapping.
Gericke was charged with willfully intercepting, or attempting to
intercept, an oral communication, in violation of RSA 570-A:2, I .
See, e.g., Weare Police Department Case Submission Form (document
no. 2 1 - 8 ) . Importantly, however, that statute provides that, for
a crime to occur, the victim of an intercepted oral communication
must have had a reasonable expectation “that such communication
is not subject to interception under circumstances justifying
such expectation.” RSA 570-A:1, I I . See also Fischer v . Hooper
143 N.H. 585, 590 (1999) (providing that the victim of
intercepted oral communication must have a “reasonable
expectation . . . that her communications will not be
intercepted.”). Here, the officers had no reasonable expectation
that their public communications during the traffic stop were not
subject to interception: they were performing official duties,
they were in a public place, and Gericke was openly videotaping
(or purporting to videotape) their actions. See Glik, 655 F.3d
at 82-83.
16 Even s o , defendants say, the facts underlying this case are
at least sufficiently distinct from those presented in Glik that
they are at least entitled to qualified immunity. That is to
say, even if they did violate Gericke’s constitutional rights,
they remain immune from suit and liability. A government
official is entitled to qualified immunity from personal
liability if his or her challenged “‘conduct [did] not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Aversa v . United States,
99 F.3d 1200, 1214 (1st Cir. 1996) (quoting Harlow v . Fitzgerald,
457 U.S. 8 0 0 , 818 (1982)). The challenged conduct is measured by
a standard of objective reasonableness, that i s , one must ask:
“Could an objectively reasonable official, situated similarly to
the defendant, have believed that his conduct did not violate the
plaintiff[’s] constitutional rights, in light of clearly
established law and the information possessed by the defendant at
the time of the allegedly wrongful conduct?” Wood v . Clemons, 89
F.3d 9 2 2 , 927 (1st Cir. 1996). And, as the Court of Appeals for
the First Circuit has observed,
To determine a defendant’s eligibility for qualified immunity, courts must define the right asserted by the plaintiff at an appropriate level of generality and ask whether, so characterized, that right was clearly established when the harm-inducing conduct allegedly took place. This does not mean that a right is clearly established only if there is precedent of considerable factual similarity. It does mean, however, that the law must have defined the right in a quite specific
17 manner, and that the announcement of the rule establishing the right must have been unambiguous and widespread, such that the unlawfulness of particular conduct will be apparent ex ante to reasonable public officials.
Brady v . Dill, 187 F.3d 1 0 4 , 115-16 (1st Cir. 1999) (citations
and internal quotation marks omitted) (emphasis supplied).
As suggested in Dill, a defendant does not lose the
protection of qualified immunity if he acts mistakenly, as long
as his mistake was objectively reasonable, since qualified
immunity is intended to protect “all but the plainly incompetent
or those who knowingly violate the law.” Malley v . Briggs, 475
U.S. 335, 341 (1986)).
To resolve defendants’ claimed entitlement to qualified
immunity, it is necessary to focus on two aspects of the Glik
opinion. First, the court of appeals noted that the “peaceful
recording of an arrest in a public space that does not interfere
with the police officers’ performance of their duties is not
reasonably subject to limitation.” Glik, 655 F.3d at 84
(emphasis supplied). A reasonable (if not self-evident)
implication of that statement of the law is that the non-peaceful
recording of police officers, in a way that does interfere with
the performance of their duties, is not constitutionally
protected conduct (or, at the very least, it has not been
18 “clearly established” that it i s ) . Second, the Glik court
distinguished a recent decision by the Court of Appeals for the
Third Circuit, in which that court held that “there was
insufficient case law establishing a right to videotape police
officers during a traffic stop to put a reasonably competent
officer on ‘fair notice’ that seizing a camera or arresting an
individual for videotaping police during the stop would violate
the First Amendment.” Kelly v . Borough of Carlisle, 622 F.3d
248, 262 (3d Cir. 2010) (emphasis supplied).
In light of the foregoing, and given that Glik does not
clearly establish a First Amendment right to disruptively and
non-peacefully engage in recording the public activity of police
officers, a reasonable police officer in this circuit could
plausibly conclude that Gericke did not have a constitutionally
protected right to videotape the officers during the course of a
traffic stop if she was behaving in a way that was not peaceful
or was disruptive.4
4 Neither Glik nor Kelly (the Third Circuit opinion) discusses why a police officer might lawfully (and constitutionally) prohibit a person from recording an ongoing traffic stop. Both courts did suggest, however, that the potentially dangerous nature of traffic stops might prove a meaningful distinction. Still, in light of the court’s broad holding in Glik, a reasonable officer should have known that a blanket prohibition on the recording of all traffic stops, no matter the circumstances, was not constitutionally permissible. In other words, to demonstrate that they are entitled to qualified immunity, defendants must show that Gericke’s conduct
19 The events giving rise to Gericke’s claims arose out of a
late night traffic stop and the circumstances faced by the
officers in this case were substantially different than those
faced by the officers in Glik. Simon Glik used his cell phone to
record three Boston police officers arresting a young man on the
Boston Common. Nothing in the opinion suggests that there was
anything unusual or dangerous about the circumstances, or that
Glik was disruptive in any way. Here, however, the officers did
face a potentially dangerous situation: a late night traffic stop
involving multiple vehicles, six citizens (some of whom were
quite vocal, even confrontational, in expressing their opposition
to the officers), and at least one firearm. As the court of
appeals recognized in Glick, “a traffic stop is worlds apart from
an arrest on the Boston Common in the circumstances alleged.”
Glik, 655 F.3d at 8 5 . See also Michigan v . Long, 463 U.S. 1032,
1047 (1983) (“[W]e [have] recognized that investigative
detentions involving suspects in vehicles are especially fraught
with danger to police officers.”); Pennsylvania v . Mimms, 434
somehow distracted Sergeant Kelley, that it interfered with his ability to perform his official duties, or that it otherwise contributed to the dangerous nature of the late-night traffic stop. See, e.g., Glik, 655 F.3d at 84 (“Glik filmed the officers from a comfortable remove and neither spoke to nor molested them in any way . . . Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”) (citation and internal punctuation omitted).
20 U.S. 106, 110 (1977) (recognizing the “inordinate danger”
confronting police officers conducting traffic stops).
But, with respect to whether Gericke was, in fact,
disruptive, there is a genuine factual dispute that must be
resolved by the trier of fact. Defendants say Gericke was
disruptive to the point of interfering with the responding
officers’ ability to perform their official duties - hence the
decision to charge her with obstruction. Gericke, on the other
hand, asserts that she was a model of civility and calmness.
See, e.g., Gericke Deposition at 4 4 , 62-65. Whether the officers
are entitled to qualified immunity depends in large part on
whether Gericke’s conduct was within or outside the protection
afforded by the First Amendment - o r , more correctly, whether her
conduct was such that a reasonable officer should have known that
she was engaging in protected conduct under the actual
circumstances. The existence of that genuinely disputed material
fact precludes the court from granting defendants’ motion for
summary judgment on grounds of qualified immunity.
C. Retaliatory Prosecution - Redress of Grievances
In count two of her amended complaint, Gericke alleges that,
without probable cause, defendants charged her with violating the
state wiretapping law in retaliation for her having petitioned
21 the government for redress of grievances. Specifically, she
claims she:
was engaged in lawful First Amendment Activities, in that she petitioned the Defendants for a redress of grievances when she asked that they provide her a receipt for her seized camera. The Defendants arrested her and charged her with “wiretapping” in retaliation for exercising her First Amendment rights.
Id. at para. 28 (emphasis supplied). While there may be some
debate as to its precise contours, the right to “redress
grievances” is likely not violated when an arrestee
unsuccessfully requests a receipt for evidence seized in a
criminal case.
Aside from the obvious legal flaws in Gericke’s claim, it
suffers as well from a fatal factual flaw. According to her
original complaint, Gericke was charged with violating the state
wiretapping law before she (allegedly) raised the issue of a
receipt for her seized camera. See, e.g., Complaint at para. 18-
19 (“Following the arrest, Defendant Montplaisir seized M s .
Gericke’s camera, and Defendant Carney instructed Defendant
Montplaisir to charge M s . Gericke with illegal wiretapping under
RSA 570-A. . . . Following M s . Gericke’s booking, M s . Gericke
asked for a receipt for her camera.”) (emphasis supplied). As a
factual matter, then, she plainly was not charged with violating
the state wiretapping statute in retaliation for having later
22 sought a receipt for her camera; on this record, the charge
preceded her request.
Defendants are entitled to judgment as a matter of law on
count two of the complaint.
II. Municipal Liability.
In count four of her amended complaint, Gericke asserts that
Chief of Police Gregory Begin “failed to properly train and
supervise the Defendant Officers by maintaining a policy, custom,
or both which caused and/or allowed the Defendants’ unlawful
unconstitutional conduct to occur thereby causing harm to the
Plaintiff.” Amended Complaint, at para. 3 7 . She advances
similar claims against the Weare Police Department (count five)
and the Town of Weare (count s i x ) .
It is well-established that “[s]upervisory liability under
§ 1983 cannot be predicated on a respondeat theory, but only on
the basis of the supervisor’s own acts or omissions.” Aponte
Matos v . Toledo-Davila, 135 F.3d 1 8 2 , 192 (1st Cir. 1998)
(citation and internal punctuation omitted). Consequently,
municipalities and their supervisory employees:
are not vicariously liable under section 1983 for the actions of their non-policymaking employees. They are responsible only for their own unconstitutional acts.
23 Thus, a plaintiff who brings a section 1983 action against a municipality bears the burden of showing that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. Such a plaintiff must identify a municipal “policy” or “custom” that caused the plaintiff’s injury.
Haley v . City of Boston, 657 F.3d 3 9 , 51 (1st Cir. 2011)
(citations and internal punctuation omitted) (emphasis in
original).
In support of her claim against Chief Begin, Gericke alleges
the following:
The Defendant Officers conducted their actions pursuant to Defendant Begin’s policies and procedures, the Weare Police Department’s policies and procedures and the Defendant Town’s policies and procedures. . . . .
Chief Begin admitted to having the authority to make policies and procedures on behalf of the Defendant Town and the Defendant PD. He explained that the policy regarding wiretapping is to arrest people for audio/video recording his officers without having first obtained the consent of the officers and/or if the individual is yelling at the officers, moving around and using a device that has a red light.
Plaintiff’s Memorandum (document 21-2) at 25-26 (emphasis
supplied). That is not an entirely accurate statement of the
undisputed record evidence. Chief Begin did not discuss the
police department’s “official policy” on dealing with members of
the public who are using videotaping equipment (to the extent the
department even has such a policy). Rather, he testified about
24 his personal belief that, as long as a citizen is not interfering
with an officer’s ability to perform his or her official duties,
that citizen has a right to videotape the officer. But, he said
he also believes an officer has probable cause to arrest the
citizen if he or she is being disruptive or otherwise
“interfering with the officer and his duties.” Deposition of
Gregory C . Begin (document n o . 21-12) at 3 6 . Gericke points to
no other evidence suggesting that the police department had a
custom or policy of the sort she alleges.
To the extent Chief Begin’s interpretation of the governing
law can, standing alone, properly be considered an official
governmental policy (a doubtful proposition), it still cannot be
said that the “policy” was the “moving force” behind Gericke’s
alleged constitutional injuries. She claims that her
constitutional rights were violated when, without probable cause,
officers charged her with violating the state wiretapping
statute, in retaliation for having engaged in protected conduct.
She has pointed to nothing in the record suggesting that any
custom or policy enacted or implemented by Chief Begin caused her
alleged injuries. In fact, based upon Gericke’s own
interpretation of the record evidence, if the Weare Police
Department had a policy, it provided that officers should not
arrest citizens who are peacefully videotaping officers
25 performing their public duties. Chief Begin i s , then, entitled
to judgment as a matter of law on count four of plaintiff’s
amended complaint.
As to the Town of Weare and the Weare Police Department,
Gericke alleges that:
[T]he Defendant Town and Defendant PD by and through Defendant Begin maintain a policy that requires seized property to be returned once a District Court case is disposed o f . The Defendant Officers, Defendant P D , and Defendant Town failed to follow this policy directive by failing to return M s . Gericke’s camera once Attorney Baumann had nolle prossed the charges against M s . Gericke. Finally, Defendant Begin admitted that receipts should be given to defendants who have had property seized by the Defendant PD. He also admitted that this is especially true if the person asks for a receipt. Here, despite M s . Gericke asking for a receipt, the Defendants did not provide her a receipt for her camera.
Therefore, the Defendant Town and Defendant PD clearly maintain[] policies and customs which enabled and encouraged the Defendant Officers to violate M s . Gericke’s constitutionally protected activities.
Plaintiff’s Memorandum at 26 (emphasis supplied).
Gericke’s conclusion does not follow from her premises.
And, the “policies” she identifies were clearly not the “moving
force” behind her alleged injuries, nor did they “enable” or
“encourage” the defendant police officers to violate her
constitutional rights. In fact, to the extent policies as
26 described by Gericke existed, they would have encouraged officers
to return seized (non-contraband) evidence after a criminal case
concludes, and provide receipts for seized evidence upon request.
A lengthy discussion of the point is unnecessary. The Town of
Weare and the Weare Police Department are entitled to judgment as
a matter of law on counts five and six of plaintiff’s amended
complaint.
III. Gericke’s State Common Law Claim.
Finally, Gericke advances a state common law claim for
malicious prosecution (count three), over which she asks the
court to exercise supplemental jurisdiction. To prevail on such
a claim, Gericke must establish that she “was subjected to a
criminal prosecution instituted by the defendant without probable
cause and with malice, and that the criminal proceeding
terminated in [her] favor.” Stock v . Byers, 120 N.H. 8 4 4 , 846
(1980) (citation and internal punctuation omitted). There is no
question that three of those elements are present: Gericke was
charged with violating the state wiretapping law; as discussed
above, defendants lacked probable cause to believe she had
violated that statute; and the proceedings terminated in her
favor when the charges were dropped and not reinstituted. What
remains unresolved is whether defendants acted with malice.
27 Under New Hampshire law, malice “is said to exist when the
primary purpose in instituting the criminal proceeding was not to
bring an offender to justice, but was, on the contrary, ill will,
personal hostility, or to obtain a personal advantage.” MacRae
v . Brant, 108 N.H. 1 7 7 , 181 (1967) (citations omitted). But,
while malice may be inferred from the lack of probable cause,
Welch v . Bergeron, 115 N.H. 179, 183-84 (1975), that inference
alone is insufficient to entitle Gericke to judgment as a matter
of law. Defendants vigorously dispute her claim that they acted
with any malice toward her; rather, they say they were simply
enforcing the law as they understood i t . Whether one or more of
the defendants acted with malice toward Gericke i s , then, an
issue for the jury. Consequently, neither party is entitled to
summary judgment on Gericke’s claim for malicious prosecution.
Conclusion
For the foregoing reasons, defendants are entitled to
judgment as a matter of law on counts two, four, five, and six of
plaintiff’s amended complaint. Their motions for summary
judgment (documents n o . 19 and 20) are, therefore, granted in
part and denied in part. Plaintiff’s motion for summary judgment
(document n o . 21) is denied.
28 Because there are genuinely disputed material facts relevant
to both count one and count three, those counts cannot be
resolved as a matter of law.
SO ORDERED.
Stefeven J./McAuliffe Jnited States District Judge
October 1 5 , 2012
cc: Seth J. Hipple, Esq. Stephen T . Martin, Esq. Charles P. Bauer, Esq. Corey M . Belobrow, Esq.