STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. AP-18-65
JOSHUA GRAY,
Petitioner ORDER ON PETITIONER'S SOC APPEAL V.
STATE OF MAINE, DEPARTMENT OF PUBLIC SAFETY,
Respondent
Before the Court is Petitioner Joshua Gray's SOC petition for review of the Department of
Public Safety's (the "Department's") denial of his application for a Professional Investigator's
License. For the following reasons, the petition is granted.
Background
Joshua Gray is licensed as a Professional Investigator in Tennessee, Vermont,
Massachusetts and New Hampshire. On January 26, 2018, Gray applied for an investigator's
license in Maine. As part of its review of Gray's application, the Department conducted a
background investigation which included an investigation into Gray's use of social media. This
investigation revealed that Gray has published numerous statements concerning a fatal police
shooting which occurred in Vassalboro in 2017. The dominant theme of these statements is that
an officer who was involved in the shooting, Lt. Scott Ireland, is a "dirty cop" whose career has
been plagued by lying, internal affairs trouble and abuse of power issues and who committed first
degree murder while he was "likely drunk." As a result of its investigation, the Department
concluded that Gray had made statements which demonstrate that he "lack[s] the requisite
competency and fitness of character to act as a PI in the State of Maine." Consequently, the
1 Department denied Gray's application on August 31, 2018. Gray's attorney received a copy of the
denial on September 14, 2018 and on October 11, 2018 Gray filed a petition for review of the
denial of his application.
Standard of Review
The Court reviews an administrative agency's decision for an abuse of discretion, error of
law, or findings not supported by the evidence. Uliano v. Bd. of Envtl. Prat., 2009 ME 89, ~
12,977 A.2d 400 (citation omitted). "An administrative decision will be sustained if, on the basis
of the entire record before it, the agency could have fairly and reasonably found the facts as it
did." Id. (quoting CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ~ 6,703 A.2d 1258). The
party seeking to vacate an agency decision bears the burden of persuasion. Kelley v. Me. Pub.
Emps. Ret. Sys., 2009 ME 27, ~ 16,967 A.2d 676. "When an agency concludes that the party with
the burden of proof failed to meet that burden, [the court] will reverse that determination only if
the record compels a contrary conclusion to the exclusion of any other inference." Kelley v. Me.
Pub. Emples. Ret. Sys., 2009 ME 27, ~ 16,967 A.2d 676 (quotation omitted) .
Discussion
The State of Maine reqmres that professional investigators obtain a professional
investigator's license from the Chief of the Maine State Police. 32 M.R.S. § 8104. In order to
obtain an investigator's license, an applicant must demonstrate that they possess good moral
character. Id. § 8105( 4). Further, the Chief may refuse to issue a license if the applicant has:
A. Engaged in conduct that evidences a lack of ability or fitness to discharge the duty owed by the licensee to a client or the general public; or
B. Engaged in conduct that evidences a lack of knowledge or an inability to apply principles or skills to carry out the practice for which the person is licensed.
32 M.R.S. § 8113(6).
2 In this case, the Chief of the Maine State Police determined that "since early 2017, [Gray
had] made postings on social media platforms (including on [his] business' official Facebook page)
that include statements that are materially false." (R. 4.) The Chief further determined that"[ b]y
publishing such misleading statements publicly, [Gray has] demonstrated conduct that brings into
question [his] auilily to competently investigate and then report investigative findings with
accuracy, objectivity, and without bias." Id. The Chief reasoned that "[f]rom a consumer protection
perspective, these findings ... are of great concern." Id. Consequently, the Chief denied Gray's
license based on his findings that Gray "lack[s] the requisite competency and fitness of character
to act as a PI in the State of Maine." (R. 4.)
Gray argues that denying his application on the basis of his social media articles and posts
violates his right to free speech and thus constitutes an error of law. Gray asserts that his social
media postings are statements of opinion which were not likely to incite violence and that they
were made in his capacity as a private citizen. Because, in his view, "fajll speech, in any form and
by any method, has always been ruled as protected except speech which incites imminent
violence," Gray argues that his social media posts cannot be considered when determining whether
he has good moral character.
The Department argues that many of Gray's statements are demonstratively false and that
this supports a finding that Gray is dishonest, not able to accurately report facts, and is incompetent
to act as a professional investigator. The Department also points out that defamatory speech is not
protected by the First Amendment. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2002)
("As a general principle, the First Amendment bars the government from dictating what we see or
read or speak or hear. Freedom of speech of course has its limits; it does not embrace certain
3 categories of speech, including defamation, incitement, obscenity, and pornography produced with
real children.")
As a general matter, "laJ State cannot exclude a person from the practice of Jaw or from
any other occupation in a manner or for reasons that contravene the Due Process or Equal
Protection Clause of the Fourteenth Amendment." In re Feingold, 296 A.2d 492, 498-- 99 (Me.
1972) (quoting Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239 (1957)). And as a
matter of First Amendment principles, a Government may not regulate speech based upon the
motivating ideology, opinion or perspective of the speaker. Rosenberger v. Rector & Visitors of
the Univ. of Va., 515 U.S. 819,829 (1995).
In this case, the Department's Notice of Denial shows that Gray's application was denied
because of the statements that Gray made on social media. Further, the notice shows that the
Department's denial was based upon its disagreement with the viewpoints expressed in these
statements. The Department reasons that Gray should not receive a private investigator's license
as the statements show that he is incompetent and Jacks the necessary fitness of character. This
finding is in turn based solely on what the Department characterizes as "materially false"
statements that Gray has made publicly. In other words, it is based on the Department's
disagreement with Gray's publicly stated opinion that the State Trooper is a dirty cop with a history
of internal affairs problems who committed murder.
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STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CIVIL ACTION DOCKET NO. AP-18-65
JOSHUA GRAY,
Petitioner ORDER ON PETITIONER'S SOC APPEAL V.
STATE OF MAINE, DEPARTMENT OF PUBLIC SAFETY,
Respondent
Before the Court is Petitioner Joshua Gray's SOC petition for review of the Department of
Public Safety's (the "Department's") denial of his application for a Professional Investigator's
License. For the following reasons, the petition is granted.
Background
Joshua Gray is licensed as a Professional Investigator in Tennessee, Vermont,
Massachusetts and New Hampshire. On January 26, 2018, Gray applied for an investigator's
license in Maine. As part of its review of Gray's application, the Department conducted a
background investigation which included an investigation into Gray's use of social media. This
investigation revealed that Gray has published numerous statements concerning a fatal police
shooting which occurred in Vassalboro in 2017. The dominant theme of these statements is that
an officer who was involved in the shooting, Lt. Scott Ireland, is a "dirty cop" whose career has
been plagued by lying, internal affairs trouble and abuse of power issues and who committed first
degree murder while he was "likely drunk." As a result of its investigation, the Department
concluded that Gray had made statements which demonstrate that he "lack[s] the requisite
competency and fitness of character to act as a PI in the State of Maine." Consequently, the
1 Department denied Gray's application on August 31, 2018. Gray's attorney received a copy of the
denial on September 14, 2018 and on October 11, 2018 Gray filed a petition for review of the
denial of his application.
Standard of Review
The Court reviews an administrative agency's decision for an abuse of discretion, error of
law, or findings not supported by the evidence. Uliano v. Bd. of Envtl. Prat., 2009 ME 89, ~
12,977 A.2d 400 (citation omitted). "An administrative decision will be sustained if, on the basis
of the entire record before it, the agency could have fairly and reasonably found the facts as it
did." Id. (quoting CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ~ 6,703 A.2d 1258). The
party seeking to vacate an agency decision bears the burden of persuasion. Kelley v. Me. Pub.
Emps. Ret. Sys., 2009 ME 27, ~ 16,967 A.2d 676. "When an agency concludes that the party with
the burden of proof failed to meet that burden, [the court] will reverse that determination only if
the record compels a contrary conclusion to the exclusion of any other inference." Kelley v. Me.
Pub. Emples. Ret. Sys., 2009 ME 27, ~ 16,967 A.2d 676 (quotation omitted) .
Discussion
The State of Maine reqmres that professional investigators obtain a professional
investigator's license from the Chief of the Maine State Police. 32 M.R.S. § 8104. In order to
obtain an investigator's license, an applicant must demonstrate that they possess good moral
character. Id. § 8105( 4). Further, the Chief may refuse to issue a license if the applicant has:
A. Engaged in conduct that evidences a lack of ability or fitness to discharge the duty owed by the licensee to a client or the general public; or
B. Engaged in conduct that evidences a lack of knowledge or an inability to apply principles or skills to carry out the practice for which the person is licensed.
32 M.R.S. § 8113(6).
2 In this case, the Chief of the Maine State Police determined that "since early 2017, [Gray
had] made postings on social media platforms (including on [his] business' official Facebook page)
that include statements that are materially false." (R. 4.) The Chief further determined that"[ b]y
publishing such misleading statements publicly, [Gray has] demonstrated conduct that brings into
question [his] auilily to competently investigate and then report investigative findings with
accuracy, objectivity, and without bias." Id. The Chief reasoned that "[f]rom a consumer protection
perspective, these findings ... are of great concern." Id. Consequently, the Chief denied Gray's
license based on his findings that Gray "lack[s] the requisite competency and fitness of character
to act as a PI in the State of Maine." (R. 4.)
Gray argues that denying his application on the basis of his social media articles and posts
violates his right to free speech and thus constitutes an error of law. Gray asserts that his social
media postings are statements of opinion which were not likely to incite violence and that they
were made in his capacity as a private citizen. Because, in his view, "fajll speech, in any form and
by any method, has always been ruled as protected except speech which incites imminent
violence," Gray argues that his social media posts cannot be considered when determining whether
he has good moral character.
The Department argues that many of Gray's statements are demonstratively false and that
this supports a finding that Gray is dishonest, not able to accurately report facts, and is incompetent
to act as a professional investigator. The Department also points out that defamatory speech is not
protected by the First Amendment. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2002)
("As a general principle, the First Amendment bars the government from dictating what we see or
read or speak or hear. Freedom of speech of course has its limits; it does not embrace certain
3 categories of speech, including defamation, incitement, obscenity, and pornography produced with
real children.")
As a general matter, "laJ State cannot exclude a person from the practice of Jaw or from
any other occupation in a manner or for reasons that contravene the Due Process or Equal
Protection Clause of the Fourteenth Amendment." In re Feingold, 296 A.2d 492, 498-- 99 (Me.
1972) (quoting Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239 (1957)). And as a
matter of First Amendment principles, a Government may not regulate speech based upon the
motivating ideology, opinion or perspective of the speaker. Rosenberger v. Rector & Visitors of
the Univ. of Va., 515 U.S. 819,829 (1995).
In this case, the Department's Notice of Denial shows that Gray's application was denied
because of the statements that Gray made on social media. Further, the notice shows that the
Department's denial was based upon its disagreement with the viewpoints expressed in these
statements. The Department reasons that Gray should not receive a private investigator's license
as the statements show that he is incompetent and Jacks the necessary fitness of character. This
finding is in turn based solely on what the Department characterizes as "materially false"
statements that Gray has made publicly. In other words, it is based on the Department's
disagreement with Gray's publicly stated opinion that the State Trooper is a dirty cop with a history
of internal affairs problems who committed murder.
In its court filings the Department argues that the denial was not actually based upon Gray's
public opinions about police corruption and competency, but rather that it was based on conduct
which shows that Gray is unable to investigate with accuracy, objectivity, and without bias. In
support of its argument, the Department has provided a spreadsheet compiling Gray's statements
and the Department's findings regarding the purported veracity of each statement. Additionally,
4 the Department has also submitted the Attorney General's investigative report on the use of deadly
force by the State Police during the 2017 Vassalboro shooting; a memorandum from Lt. Anna
Love of the State Police Office of Professional standards stating that Lt. Ireland does not have any
history of being disciplined for misconduct; and over 300 pages of statements that Gray has made
on social media.
Although the Department has offered evidence which supports its opinion that Lt. Ireland
is not guilty of murder and has not been subject to internal affairs discipline', there is no record
evidence of the investigative methods Gray employed or the specific information Gray either
utilized or ignored in reaching his conclusions about Lt. Ireland and the Maine State Police .
Moreover, there is nothing in the record to suggest that whatever Gray did in regards to the
shooting was an "investigation" as opposed to him making statements that were understandably
perceived by state actors to be false, outrageous and offensive. The Court concludes that the
Department's determination that Gray lacks the necessary competency to investigate is based
primarily on the fact that Gray has reached opinions or conclusions about Lt. Ireland and the State
Police which are completely at odds with the Department's, and which do display a hostile bias
toward Lt. Ireland.
Further, although Gray's statements may arguably contain defamatory material,' the
Department has overlooked two important considerations which the Court cannot. First, the Court
in this Rule 80C appeal is not in any position to adjudicate whether the statements constitute
defamation against a public figure. More fundamentally, however, the Maine Supreme Court has
, It should be noted that there is no record evidence that Lt. Ireland has not been the subject of internal affairs investigations. The only evidence is that he has not been disciplined as a result of any investigation. , The parties disagree over whether Gray's statements should be fairly characterized as statements of opinion or statements of fact. See Lester v. Powers, 596 A .2d 65, 69 (Me. 1991) (an opinion which does not imply the existence of undisclosed defamatory facts cannot support a claim for defamation).
5 recognized that statements made about or against public officials , even ones which are "objectively
false", inflammatory, or outrageous, are protected by a limited First Amendment privilege. See
Plante v. long, 2017 ME 189, ~ 10, 170 A.3d 24. Because the statements at issue here all concern
and pertain to a matter of public importance and public figures - a police shooting, the resulting
investigation, and the police officer involved in the shooting - this appeal cannot be rcsol vcd in
the usual manner by determining if there is competent evidence in the record to support the
administrative decision . The Petitioner is making a constitutional argument, which of course is
something that can be done in an administrative appeal such as this one. The Court has concluded
that the issue therefore becomes what standard the Department is required to apply to the
statements in order to determine if Petitioner can be denied a license based on, as the Department
frames the issue, his "competence" and "character."
While the Court could not find any Maine case in which a professional license was denied
solely based on statements made by the applicant in social media, the Law Court in Plante did not
just reaffirm and reiterate the limited privilege that applies to allegedly defamatory statements
made against public figures . It held that in order to overcome the privilege, a showing must be
made by clear and convincing evidence that the statements were made with "actual malice"-i.e .,
with knowledge that the statements were false or with reckless disregard of their truth or falsity.
Id. While the Department understandably believes, based on their investigations of Lt. Ireland, that
the statements were "materially false," the Law Court clarified in Plante that the objective falsity
of a statement or statements cannot by itself support a finding of actual malice. Id.~ 12.
In its notice of denial, the Department does not make any finding whether Petitioner made
these statements with knowledge that they were false, or with reckless disregard of their truth or
falsity. This means that it has not provided any evidence showing that Gray acted with actual
6 malice when he published his social media statements. Because the Department focused solely on
the objective falsity of Gray's statements, it applied the wrong legal standard to determine whether
Gray lacks competence and good moral character because he made defamatory or false statements.
Consequently, this matter must be remanded to the Department to allow it to determine whether
Gray, at the time he published his allegedly defamatory social media posts, "in fact knew that his
statements were false or ... acted with a high degree of awareness of their probable falsity." Id.~
10 (quotation omitted).
Conclusion
For the foregoing reasons, the entry will be:
The Petitioner's Rule 80 C petition is granted in part. The decision of the Department of
Public Safety is reversed and remanded to the Department to conduct an appropriate process
or proceeding which would enable it to determine if the Petitioner's statements were made
with actual malice as defined by Maine law. The clerk is directed to incorporate this order
into the docket by reference. M.R. Civ. P. 79(a).
Date: