United States District Court, D. Maine
For Kevin McBride and Anne Blake, Plaintiffs: Frank P. D'Alessandro, Katherine McGovern, Pine Tree Legal Assistance, Inc., Portland, ME; Zachary L. Heiden, American Civil Liberties Union of Maine Foundation, Portland, ME.
For City of Westbrook, and Melissa May, in her official capacity as a Westbrook Police Officer, and Timothy Morrell, in his official capacity as a Westbrook Police Sergeant, and Thomas Roth, in his official capacity as a Westbrook Police Captain, Defendants: John J. Wall, III, Monaghan Leahy, LLP, Portland, ME.
DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
D. BROCK HORNBY, UNITED STATES DISTRICT JUDGE.
This is a lawsuit against the City of Westbrook and three of its police officers under 42 U.S.C. § 1983. It challenges as unconstitutional the police delivery of " WESTBROOK POLICE CRIMINAL TRESPASS NOTICES"  to private residential tenants upon a private landlord's request. I conclude that the individual police officer defendants are entitled to qualified immunity on the damages claims against them and Grant their motion for summary judgment. I also Grant summary judgment to the City on the claims of one plaintiff. Some of the other plaintiff's claims against the City for allegedly involving itself in private eviction proceedings, however, deserve further airing. The Clerk is directed to schedule oral argument on those claims. If, in light of the questions I raise here, the parties wish to submit supplemental briefing before that argument, they may do so.
For the factual background, I rely upon the stipulations of the parties and, when there is no stipulation, the properly documented factual assertions that are most favorable to the plaintiffs, since they are the parties against whom summary judgment is sought.
The parties have stipulated that Marc and Amie LeClerc are the owners of the Westbrook apartment building in question at 277 Main Street. Stipulations With Regard to Defs.' Mot. for Summ. J. (" Stipulations") ¶ 1 (ECF No. 31). The plaintiff Anne Blake lived there as a tenant in Apartment 2 (" Apt. 2") without a written lease. Id. ¶ ¶ 3, 4. In 2013, the LeClercs complained that Blake had failed to pay her rent, id. ¶ 8, and obtained a Forcible Entry and Detainer (" FED") judgment against her in Maine District Court, id. ¶ ¶ 10-11 & Ex. 2, and later a Writ of Possession. Id. ¶ 12. On July 5, 2013, the Cumberland County Sheriff's Office served Blake with the Writ of Possession. Id. ¶ 14. On July 9, at the LeClercs' request a Westbrook police officer served a " WESTBROOK POLICE CRIMINAL TRESPASS NOTICE" on Blake. Id. ¶ ¶ 15-17 & Ex. 4. The Criminal Trespass Notice identified not just Blake's apartment (Apt. 2), but the entire apartment building (277 Main Street) as the subject of the trespass notice. Id. at Ex. 4. In essence, it notified Blake that if she returned to any part of the apartment building, it " will result in criminal charges being filed in court and possible arrest" and that the trespass notice was permanent, with " no expiration." Id. Although it is not one of the stipulations, it is undisputed that Blake's adult daughter and grandchildren are tenants in a different apartment in the same apartment building.
The plaintiff Kevin McBride's status with respect to Apt. 2 is less clear-cut. It is undisputed that he was Blake's boyfriend. He maintains that he also was a tenant-at-will along with Blake in Apt. 2. Pls.' Opp'n to Defs.' Mot. for Summ. J. at 2-3 (ECF No. 39). The LeClercs told the Westbrook police, however, that he was not a tenant. Dep. of Timothy Morrell at 28 (ECF No. 35); Dep. of Thomas Roth at 7-8 (ECF No. 34). McBride was not the subject of any FED lawsuit or judgment or writ of possession. But on July 9, 2013, he too was served with a " WESTBROOK POLICE CRIMINAL TRESPASS NOTICE" to the same effect as Blake. Stipulations ¶ ¶ 18-19 & Ex. 5.
The Notice served on McBride is captioned " WESTBROOK POLICE CRIMINAL TRESPASS NOTICE" and has a police " case #." Stipulations Ex. 5. It lists McBride as " TRESPASSER." It has a large bold " WARNING" appearing above quoted portions of Maine's criminal trespass statute, and lists the trespass penalties in capital letters (" ONE YEAR IN JAIL" or " SIX MONTHS IN JAIL" as the case may be). Id. This Police Department NOTICE states that the " complainant, " identified earlier in the form as the landlords, " has authorized this agency [the Westbrook Police Department] to act as their agent or representative." Id. It orders McBride to " CEASE AND DESIST FROM ENGAGING IN" trespassing activity and states: " FAILURE TO COMPLY WITH THIS LAWFUL ORDER WILL RESULT IN CRIMINAL CHARGES BEING FILED IN COURT AND POSSIBLE ARREST." Id. The Westbrook officer who served the notice on McBride told him that he had " less than 30 minutes to remove whatever property you have in the apartment and leave because you are being evicted ." Dep. of Kevin McBride at 29 (ECF No. 33) (emphasis added). Another officer demanded McBride's keys, id. at 33, and one told him that the criminal trespass notice " doesn't allow me [McBride] to come onto the property for any reason and that if I did violate it that I can be arrested." Id. at 30.
The use of criminal trespass notices derives from Maine's criminal trespass statute, 17-A M.R.S.A. § 402. The state statute makes it a crime to enter any dwelling knowing that one is not licensed or privileged to do so, or to remain in or enter any place " in defiance of a lawful order to leave [or not to enter] that was personally communicated to that person by the owner or another authorized person." 17-A M.R.S.A. § 402(D) & (E) (emphasis added). Criminal trespass notices are used by the Westbrook Police Department and police departments in other Maine towns to place persons on notice that they are not permitted on certain property. Defs.' Statement of Material Facts (" Defs.' SOMF") ¶ 29.
Blake claims a First Amendment right and a substantive due process right to associate with her daughter and grandchildren in her daughter's apartment at 277 Main Street. Blake does not contest the fact that the FED proceedings and the writ of possession against her removed any rights she had as a tenant in Apt. 2, but Blake contends that the criminal trespass notice against her extending to all of 277 Main Street deprived her of ...