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Long v. Abbott

United States District Court, D. Maine

March 1, 2017

ARTHUR J. LONG, Plaintiff,
v.
OFFICER BRENT D. ABBOTT, et al., Defendants.

          SUMMARY JUDGMENT ORDER

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The Plaintiff brings a 42 U.S.C. § 1983 claim against an officer of the Portland Police Department (PPD) alleging various constitutional violations associated with his arrest on August 9, 2014. The Plaintiff also asserts tort claims of assault and unlawful arrest against the officer under Maine state law. Additionally, the Plaintiff brings suit against the chief of the PPD and the city of Portland under the theories of supervisory and municipal liability, respectively.

         Acting on the Defendants' motion for summary judgment, the Court concludes that there are no genuine issues of material fact on the claims against the chief of the PPD and the city of Portland and that they are entitled to judgment as a matter of law. The Court determines that the Maine Tort Claims Act (MTCA) bars the Plaintiff's state law claims against the officer because the Plaintiff failed to give timely notice of his claims under the statute. However, the Court concludes that genuine disputes of material fact preclude summary judgment on the Plaintiff's constitutional claims against the officer and that qualified immunity does not bar the Plaintiff's suit on those claims.

         I. PROCEDURAL POSTURE

         A. Pleadings

         On July 22, 2015, Arthur J. Long brought suit against (1) the city of Portland, Maine; (2) James Craig, the chief of the PPD; and (3) Brent Abbott, an officer with the PPD.[1] Compl. and Demand for Jury Trial (ECF No. 1) (Compl.). The following day, Mr. Long filed an amended complaint that corrected minor typographical errors. First Am. Compl. and Demand for Jury Trial (ECF No. 3). On August 21, 2015, Mr. Long amended his complaint a second time to substitute Michael Sauschuck for James Craig as the chief of the PPD. Second Am. Compl. and Demand for Jury Trial (ECF No. 4). The city of Portland, Chief Sauschuck, and Officer Abbott (the Defendants) filed an answer on October 9, 2015. Answer, Aff'tive Defenses and Jury Trial Demand (ECF No. 8).

         On December 8, 2015, Mr. Long moved to amend his second amended complaint, Assented to Mot. to File Third Am. Compl. (ECF No. 13), and prospectively filed the third amended complaint with the Court. Third Am. Compl. and Demand for Jury Trial (ECF No. 14). The Court granted the motion without objection on December 9, 2015. Order Granting Without Obj. Mot. to Amend (ECF No. 15). The Defendants answered on December 18, 2015. Answer and Aff'tive Defenses to Third Am. Compl. and Jury Trial Demand (ECF No. 16).

         On April 12, 2016, Mr. Long moved to amend his third amended complaint. Mot. to File Am. Compl. (ECF No. 22). The Defendants objected on May 2, 2016. Defs.' Obj. to Pl.'s Mot. to File Am. Compl. (ECF No. 23). Mr. Long replied the following day. Reply Mem. Supporting Mot. to File Third Am. Compl. (ECF No. 24). On May 16, 2016, the Court granted the motion to amend. Oral Order Granting Mot. to Am. Compl. (ECF No. 27). Mr. Long filed the Fourth Amended Complaint on May 17, 2016. Fourth (and last) Am. Compl. and Demand for Jury Trial (ECF No. 28) (Fourth Am. Compl.). The Defendants answered on May 25, 2016. Answer and Aff'tive Defenses to Fourth Am. Compl. and Jury Trial Demand (ECF No. 29) (Answer).

         B. Summary Judgment Filings

         On June 15, 2016, the Defendants moved for summary judgment on all counts in Mr. Long's Fourth Amended Complaint, Defs.' Mot. for Summ. J. (ECF No. 30) (Defs.' Mot.), and provided a supporting statement of material facts. Defs.' Statement of Material Facts in Supp. of Mot. for Summ. J. (ECF No. 31) (DSMF). Mr. Long opposed the Defendants' motion on July 6, 2016. Pl.'s Opp'n to Defs.' Mot. for Summ. J. (Pl.'s Resp.). Mr. Long also submitted a response to the Defendants' statement of material facts, Pl.'s Opp'n, Attach. 1, Pl.'s Resp. to Defs.' Statement of Material Facts and Pl.'s Statement of Fact at 1-21 (ECF No. 35) (PRDSMF), as well as a statement of additional material facts. Id. at 21-39 (PSAMF). On August 10, 2016, the Defendants replied to Mr. Long's opposition. Defs.' Reply in Supp. of Mot. for Summ. J. (ECF No. 40). The Defendants also filed a reply to Mr. Long's statement of additional materials facts. Defs.' Resp. to Pl.'s Statement of Additional Facts (ECF No. 41) (DRPSAMF).

         II. SUMMARY JUDGMENT FACTS

         A. Arthur J. Long

         Arthur J. Long, the Plaintiff in this case, lived in Portland, Maine, from his birth until his twenties. PSAMF ¶ 12; DRPSAMF ¶ 12. He last lived in Portland on a regular basis in 1978. PSAMF ¶ 13; DRPSAMF ¶ 13. From 1972 to 1978, Mr. Long worked as a reserve officer for the Portland Police Department. PSAMF ¶ 16; DRPSAMF ¶ 16. Mr. Long attended the Maine Criminal Justice Academy and graduated in 1978. PSAMF ¶ 15; DRPSAMF ¶ 15. From 1977 to 1992, Mr. Long worked as a full-time law enforcement officer at the following departments: Thomaston Police, York County Sheriff's Office, Old Orchard Beach Police, and Kittery Police. PSAMF ¶ 16; DRPSAMF ¶ 16. Mr. Long is currently self-employed as a contractor. PSAMF ¶ 17; DRPSAMF ¶ 17.

         B. Events Leading to the Arrest

         On August 9, 2014, Arthur J. Long drove to Portland for a visit and arrived at approximately 6:00 PM.[2] PSAMF ¶ 2; DRPSAMF ¶ 2. Mr. Long has a sister who lives on Munjoy Hill in Portland, and he visited her on August 9, 2014. PSAMF ¶ 14; DRPSAMF ¶ 14. He spent the evening walking throughout the Old Port and peninsula. PSAMF ¶ 2; DRPSAMF ¶ 2. People of all ages were out walking and enjoying the evening.[3] Id. Others were taking advantage of the warm night temperature by eating outside in front of their respective eateries. Id.

         At around 10:00 PM, Mr. Long entered an establishment called “Asylum.” PSAMF ¶ 3; DRPSAMF ¶ 3. There, he ordered food and consumed less than two glasses of beer before leaving at around 11:00 PM. Id. Mr. Long started to walk toward his vehicle, which was parked on Park Avenue in Portland near the Post Office. PSAMF ¶ 4; DRPSAMF ¶ 4.

         On his walk, he encountered an individual-identified in the record as Peter Bowers-sitting on the stairs in front of a building at 24 Preble Street. Id. As Mr. Long approached, Mr. Bowers, whom Mr. Long did not know, said “great night, huh?” Id. The two men struck up a conversation. Id. As the conversation continued, Mr. Long sat down on the stairs with Mr. Bowers. Id. Mr. Bowers started talking about his girlfriend, and how they had had a falling out and she had left. Id. Mr. Bowers R. 56(c). The Court interprets this subsection as incorporating a modicum of common sense. The subsection does not mean that each statement of material fact must be limited to one sentence only. Its purpose is to require the proposing party to clearly provide record support for his proposed facts and to allow the responding party to isolate specific facts and object to them. Although Mr. Long has occasionally stretched the spirit of the local rule, the Defendants have been able to interpose objections and the Court has been able to rule on them. The Court overrules each of the Defendants' Local Rule 56(c) objections. was drinking from a beer can, and Mr. Long noticed another open beer can to the left of where Mr. Long was seated. Id. Mr. Long did not sip from any of the several cans of beer on or near the stairway at 24 Preble Street. PSAMF ¶ 27; DRPSAMF ¶ 27.

         C. Mr. Long's Refusal to Provide Identification

         Officer Brent Abbott, who began serving as a patrol officer for the PPD in 2011, was on duty on the evening of August 9, 2014. DSMF ¶¶ 1-2; PRDSMF ¶¶ 1-2. Shortly before midnight, Officer Abbott and another Portland police officer, Michael Bennis, received a call from dispatch to respond to a complaint of four to five males drinking in public and loitering at 24 Preble Street. DSMF ¶ 3; PRDSMF ¶ 3; PSAMF ¶¶ 18, 53-54; DRPSAMF ¶¶ 18, 53-54. When Officers Abbott and Bennis arrived at 24 Preble Street, they found two white males-a younger man and an older man- seated on the steps in front of the building. DSMF ¶ 4; PRDSMF ¶ 4. Mr. Long was one of the two men. DSMF ¶ 7; PRDSMF ¶ 7. At no time did Mr. Long see a group of 4-5 males drinking on the stoop. PSAMF ¶ 19; DRPSAMF ¶ 19.

         Mr. Long observed the two Portland police cruisers arrive. PSAMF ¶ 5; DRPSAMF ¶ 5. Officer Abbott exited the first cruiser and donned a pair of leather gloves. Id. There were several cans of beer near the stairway, including an open can approximately seven feet from Mr. Long.[4] DSMF ¶¶ 5, 8; PRDSMF ¶¶ 5, 8; PSAMF ¶ 26; DRPSAMF ¶ 26. The lighting where the incident occurred was adequate but not very bright. PSAMF ¶ 24; DRPSAMF ¶ 24. There was no overhead lighting at 24 Preble Street, and the closest overhead light was approximately 200 feet away. Id. According to Officer Abbott, the beer cans had a “sweat line” on them, indicating that they contained beer.[5] DSMF ¶ 6; PRDSMF ¶ 6; PSAMF ¶ 25; DRPSAMF ¶ 25.

         However, at no point prior to arresting Mr. Long did Officer Abbott touch or approach within seven feet of any beer can. PSAMF ¶ 25; DRPSAMF ¶ 25.

         Officer Abbott regularly patrolled the area around 24 Preble Street.[6] DSMF ¶ 11. According to the Defendants, at the time Officer Abbott encountered the two men on August 9, 2014, he believed that the city of Portland had posted signs prohibiting drinking at intervals of approximately 200 feet in the area encompassing 24 Preble Street and that there was such a sign within 200 feet of the address.[7] DSMF ¶¶ 9- 11. By contrast, Mr. Long states that he returned to the area shortly after August 9, 2014, and there were no signs prohibiting drinking within 200 feet of 24 Preble Street.[8] PSAMF ¶ 28; DRPSAMF ¶ 28. Despite Mr. Long's long association with the city of Portland, PSAMF ¶ 29; DRPSAMF ¶ 29, he asserts that over a span of forty-five years, he has never observed a location in the city of Portland, with the exception of Wharf Street, where there are signs prohibiting drinking posted at intervals of 200 feet.[9], [10] PSAMF ¶¶ 29; 31-32; DRPSAMF ¶¶ 29, 31-32. The only places in the city of Portland where Mr. Long has observed posted signs prohibiting drinking and referencing the drinking in public ordinance are in the parts of the city with the densest concentrations of drinking establishments, including the Old Port on Wharf Street, Fore Street, and Commercial Street, the bottom of Exchange and Market Streets, Congress Street near High Street and near the intersection of Washington Avenue, next to the Snug Pub and Sulky Lounge.[11] PSAMF ¶ 30; DRPSAMF ¶ 30.

         Officer Abbott believed that it was PPD policy to issue a warning to a person suspected of drinking in public-unless that person had already received a warning earlier in the calendar year.[12] DSMF ¶ 13; PRDSMF ¶ 13. As Officer Abbott understood it, the officers ask for a suspect's identification to determine if a suspect previously received a warning and to generate a report if a warning is necessary. DSMF ¶ 14; PRDSMF ¶ 14. Officer Abbott asked both Mr. Long and Mr. Bowers for identification.[13] PSAMF ¶ 5; DRPSAMF ¶ 5. Officer Abbott did not inform Mr. Long of the PPD's warning policy. PSAMF ¶¶ 37-38; DRPSAMF ¶¶ 37-38. Mr. Bowers provided Officer Abbott with identification. DSMF ¶ 15; PRDSMF ¶ 15; PSAMF ¶ 5; DRPSAMF ¶ 5. The officers gave Mr. Bowers a warning not to drink in public and advised him to move along. DSMF ¶ 16; PRDSMF ¶ 16.

         Mr. Long asked Officer Abbott why he wanted him to produce identification. PSAMF ¶ 5; DRPSAMF ¶ 5. Officer Abbott said to Officer Bennis, “Oh, we got a wise guy here.” Id. Officer Abbott stated to Mr. Long, “Didn't you know that it's against the law to drink in public?”[14] Id.; PSAMF ¶ 34; DRPSAMF ¶ 34. Mr. Long immediately told Officer Abbott that he was not drinking in public. PSAMF ¶¶ 5, 27; DRPSAMF ¶ 5, 27. Officer Abbott referred to the open beer can to Mr. Long's left, and Mr. Long explained that the beer can was there before he arrived. PSAMF ¶ 5; DRPSAMF ¶ 5. Officer Abbott never observed Mr. Long take a drink from the nearby beer cans, PSAMF ¶ 57, DRPSAMF ¶ 57, and Mr. Long repeatedly denied that he had been drinking in public. PSAMF ¶¶ 34-35, 58; DRPSAMF ¶¶ 34-35, 58. While Officer Abbott confronted Mr. Long, Officer Bennis went looking without success for a sign posted within 200 feet prohibiting drinking.[15] PSAMF ¶ 70; DRPSAMF ¶ 70.

         Officer Abbott again requested Mr. Long's identification, and Mr. Long again asked why. PSAMF ¶ 6, 36; DRPSAMF ¶ 6, 36. Officer Abbott asked Mr. Long, “Do you live here?” PSAMF ¶ 6; DRPSAMF ¶ 6. Mr. Long replied that he did not. Id. Officer Abbott stated, “You're trespassing.”[16] Id. Mr. Long formerly served as a police officer in Maine and did not believe that he was trespassing.[17] Id.; PSAMF ¶¶ 15- 16; DRPSAMF ¶¶ 15-16. The stoop was approximately ten feet across and Mr. Long and Mr. Bowers were not blocking entry or exit from the building.[18] PSAMF ¶¶ 21, 23. To Mr. Long's knowledge, no one complained to them or about them regarding their blocking public access to the building or committing any other act.[19] PSAMF ¶ 22; DRPSAMF ¶ 22.

         Officer Abbott said, “Let's see some ID or you're going to fucking jail.” PSAMF ¶ 7; DRPSAMF ¶ 7; DSMF ¶ 21; PRDSMF ¶ 21. Mr. Long protested Officer Abbott's decorum and language and asked why he would be going to jail. Id. Officer Abbott responded, “For not providing ID.” PSAMF ¶ 7; DRPSAMF ¶ 7. Mr. Long replied, “I'm not giving you my ID.” Id.; DSMF ¶¶ 17, 20, 22; PRDSMF ¶¶ 17, 20, 22.

         D. The Arrest

         At this point, Mr. Long told Officer Abbott that he was going to video tape the incident on a cell phone. PSAMF ¶ 42; DRPSAMF ¶ 42. Immediately thereafter, Officer Abbott ordered Mr. Long to stand up, turn around, and put his hands behind his back.[20] PSAMF ¶¶ 8, 43; DRPSAMF ¶¶ 8, 43. According to the Defendants, both when Officer Abbott requested Mr. Long's identification and when he made the arrest, Officer Abbott believed that he had probable cause that Mr. Long was drinking in public and loitering.[21] DSMF ¶ 28; PRDSMF ¶ 28; PSAMF ¶ 56; DRPSAMF ¶ 56. At no time during the encounter did Officer Abbott believe that he was in any kind of danger.[22] PSAMF ¶ 85; DRPSAMF ¶ 85.

         As Mr. Long was getting up and beginning to turn around and put his hands behind his back, Officer Abbott shoved Mr. Long from behind. DSMF ¶ 30; PRDSMF ¶ 30; PSAMF ¶¶ 8, 44; DRPSAMF ¶¶ 8, 44. Mr. Long could not tell whether he was shoved by one hand or two. DSMF ¶ 32; PRDSMF ¶ 32. Mr. Long was not punched or struck with any implement. DSMF ¶ 31; PRDSMF ¶ 31. Mr. Long fell face down onto the steps, hitting the second stair with his chest. PSAMF ¶¶ 8, 77; DRPSAMF ¶¶ 8, 77; DSMF ¶ 33; PRDSMF ¶ 33. Officer Abbott then placed handcuffs on Mr. Long.[23] PSAMF ¶ 8; DRPSAMF ¶ 8; DSMF ¶ 34; PRDSMF ¶ 34. Although Mr. Long never consented to Officer Abbott touching him in any manner, Mr. Long did not resist. PSAMF ¶¶ 40-41, 84; DRPSAMF ¶¶ 40-41, 84. As Officer Abbott helped Mr. Long to his feet, Mr. Long requested to see a supervisor. PSAMF ¶ 8; DRPSAMF ¶ 8. Mr. Long did not sustain a bruise, nor did he seek any medical treatment as a result of the incident. DSMF ¶ 35; PRDSMF ¶ 35; PSAMF ¶ 46; DRPSAMF ¶ 46.

         Before the supervisor arrived, Officer Abbott reached into Mr. Long's front left pocket and removed Mr. Long's wallet.[24] PSAMF ¶ 9; DRPSAMF ¶ 9. Sometime later, prior to being transported to the Sheriff's office and while still in handcuffs, Mr. Long asked Officer Abbott if he still had Mr. Long's wallet. Id. Officer Abbott looked around as if he had misplaced it. Id. Mr. Long scanned the area and located his wallet resting on the stairs. Id. Officer Abbott said, “There's no ID in it.” Id.; DSMF ¶ 25; PRDSMF ¶ 25. Mr. Long did not keep his identification in his wallet; rather, he kept his identification and credit cards in a hard case that was located in his front right pocket. PSAMF ¶ 9; DRPSAMF ¶ 9. However, the wallet did contain over $700 in cash. Id. Officer Abbott asked for Mr. Long's identification one more time, and Mr. Long again refused. DSMF ¶ 26; PRDSMF ¶ 26.

         When the supervisor arrived, Mr. Long related his version of the events, including what he perceived to be Officer Abbott's unprofessional, profane language and conduct.[25] PSAMF ¶ 10, DRPSAMF ¶ 10. Subsequently, the officers transported Mr. Long to the Cumberland County Jail where he went through a booking process. PSAMF ¶ 11, DRPSAMF ¶ 11. Mr. Long was charged with failure to give a correct name and date of birth, in violation of 17-A M.R.S. § 15-A(2). DSMF ¶ 36; PRDSMF ¶ 36. Officer Abbott did not arrest or cite Mr. Long for the offenses of drinking in public or loitering. PSAMF ¶¶ 72, 76, DRPSAMF ¶¶ 72, 76. Mr. Long engaged a criminal defense attorney to defend him against the charges, and despite the fact that the case was dismissed early on, he paid a flat fee of $1, 500. PSAMF ¶ 52; DRPSAMF ¶ 52.

         E. The Internal Investigation

         On August 10, 2014-one day after the arrest-Mr. Long typed a statement of facts that described his version of the events the night before.[26] PSAMF ¶ 50; DRPSAMF ¶ 50. Dep. of Arthur Long, Ex. 3, Statement of Arthur J. Long at 32-33 (ECF No. 34) (Long Statement). Almost four months later, on December 4, 2014, Mr. Long sent his statement of facts along with a letter entitled “Complaint of Officer and Department Conduct” to Lieutenant Robert Martin of the Internal Affairs Division of the PPD. Dep. of Arthur Long, Ex. 3, Compl. of Officer and Dep't Conduct at 31 (ECF No. 34) (Long Letter); DSMF ¶ 42; PRDSMF ¶ 42; PSAMF ¶ 50; DRPSAMF ¶ 50. The letter notified Lieutenant Martin that Mr. Long was submitting the statement of facts “as a formal complaint against the arresting officer and against those individuals who may be either directly or indirectly involved in this matter.” Long Letter at 31. In his complaint, Mr. Long did not specifically state that the officers lacked probable cause for the arrest or that the officers conducted an unlawful search; nevertheless, the context of the letter suggested that Mr. Long was complaining that he had been arrested without probable cause.[27] DSMF ¶ 43; PRDSMF ¶ 43.

         Sergeant Julie Cannafarina investigated Mr. Long's complaint. Dep. of Arthur J. Long at 26 (ECF No. 34) (Long Dep.). She determined that Mr. Long's letter contained two allegations: (1) that Officer Abbott used excessive force, and (2) that Officer Abbott used profane and unprofessional language. Id. at 26; DSMF ¶ 45; PRDSMF ¶ 45. On July 23, 2015, Assistant Chief Vernon Malloch reviewed Sergeant Cannafarina's investigation and recommended “a finding of not sustained for both allegations against Officer Abbott.” Long Dep. at 27. On July 28, 2015, Chief Sauschuck concurred with Assistant Chief Malloch and concluded that Mr. Long's allegations were not sustained. Id. at 28-29; DSMF ¶ 46; PRDSMF ¶ 46; PSAMF ¶ 93; DRPSAMF ¶ 93. Because the investigation did not address the issue of probable cause, Chief Sauschuck did not evaluate that issue.[28] DSMF ¶ 37.

         On February 18, 2015, while the PPD investigated Mr. Long's December 4, 2014 letter, Mr. Long visited Attorney Michael Waxman. PSAMF ¶ 47; DRPSAMF ¶ 47. Attorney Waxman drafted a “Notice of Claim” and sent it to the PPD by certified mail on February 20, 2015.[29] PSAMF ¶ 49; DRPSAMF ¶ 49; DSMF, Attach. 2, Pl.'s Resp. to Req. for Production at 8-9 (ECF No. 31).

         F. Chief Michael Sauschuck

         Michael Sauschuck has been the Chief of Police in Portland since 2012. DSMF ¶ 37; PRDSMF ¶ 37. Chief Sauschuck was not present for the incident involving Mr. Long and had no physical contact with Mr. Long on August 9, 2014. DSMF ¶¶ 38, 40; PRDSMF ¶¶ 38, 40. Chief Sauschuck was not involved in the decision to arrest Mr. Long, nor was he involved in any searches of Mr. Long. DSMF ¶¶ 39, 41; PRDSMF ¶¶ 39, 41.

         The PPD maintains policies with regard to arrests, searches, and the use of force. DSMF ¶ 56; PRDSMF ¶ 56. The PPD requires that officers receive regular training on these policies.[30] DSMF ¶ 57. According to the Defendants, Officer Abbott is familiar with the PPD policies regarding arrests, searches, and the use of force.[31]DSMF ¶ 59. Since Officer Abbott started with the PPD, he has received training in warrantless arrests, lawful searches, the use of force, and requests for identification.[32] DSMF ¶¶ 60-63; PRDSMF ¶¶ 60, 62-63. The Defendants allege that from the time of Chief Sauschuck's employment in 2012 through the evening of August 9, 2014, Chief Sauschuck was not aware of any pattern or practice of Portland police officers-including Officer Abbott-making arrests without probable cause, using excessive force, requesting identification without a proper justification, or conducing unlawful searches.[33] DSMF ¶¶ 48-55, 58.

         III. PARTIES' POSITIONS

         A. Mr. Long's Fourth Amended Complaint

         Mr. Long asserts the following claims:

         1. Counts I-III (Violations of 42 U.S.C. § 1983)

         In Count I, Mr. Long alleges that Officer Abbott, under color of state law, subjected Mr. Long to a deprivation of his constitutional rights, specifically his rights to (1) bodily integrity, (2) freedom from the use of unreasonable force, (3) freedom from unreasonable warrantless searches, (4) freedom from arrest except upon a finding of probable cause, and (5) procedural and substantive due process. Fourth Am. Compl. ¶ 53.

         In Count II, Mr. Long alleges that Chief Sauschuck's “failure to a) properly supervise and/or discipline Officer Abbott and/or b) promulgate appropriate policies regarding arrests upon probable cause, and the use of force and c) train his officers, including Officer Abbott, on arrest upon probable cause and the appropriate use of force” displayed a “reckless or callous disregard of, or indifference to, the rights of Mr. Long.” Id. 67-68.

         In Count III, Mr. Long alleges Chief Sauschuck, as a policymaker for the city of Portland, “adopted a custom or policy of abdicating any appropriate level of supervision and/or discipline” of Officer Abbott. Id. ¶ 73. Mr. Long also asserts that Chief Sauschuck “adopted a custom or policy of permitting his officers to make arrests without establishing probable cause and to use force under circumstances which do not in fact require such force, and to conduct unreasonable searches.” Id. ¶ 74. Mr. Long contends such an approach to the use of arrests and force amounts to an unconstitutional custom or policy that represented a “reckless or callous disregard of, or indifference to, the rights of Mr. Long.” Id. ¶¶ 75, 77.

         2. Counts IV (Assault) and V (Unlawful Arrest)

         In Count IV, Mr. Long alleges that Officer Abbott's actions constituted an unjustified assault upon Mr. Long. Id. ¶ 79. Further, in Count V, Mr. Long asserts that Officer Abbott arrested him in bad faith and without probable cause. Id. ¶ 82- 83.

         B. The Defendants' Motion for Summary Judgment

         The Defendants request summary judgment on all counts in Mr. Long's Fourth Amended Complaint. First, the Defendants argue that the record evidence does not indicate that any of the Defendants committed constitutional violations. Next, the Defendants contend that qualified immunity protects Officer Abbott and Chief Sauschuck from liability for alleged constitutional violations. Finally, the Defendants claim that Officer Abbott is entitled to summary judgment on Mr. Long's state law claims because Officer Abbott is entitled to discretionary function immunity and because Mr. Long failed to comply with the procedural requirements of the MTCA.

         1. Mr. Long's Constitutional Claims

         a. Probable Cause to Arrest Mr. Long

         The Defendants state that Officer Abbott arrested Mr. Long for failure to give a correct name or date of birth in violation of 17-A M.R.S. 15-A(2). Defs.' Mot. at 3. That statute provides in relevant part that “[a]ny person who a law enforcement officer has probable cause to believe has committed or is committing a crime...who intentionally fails or refuses to provide to that officer reasonably credible evidence of that person's correct name, address or date of birth commits a Class E crime[.]” 17-A M.R.S. § 15-A(2).

         The Defendants claim that Officer Abbott had probable cause to believe that Mr. Long committed the crime of drinking in public in violation of 17 M.R.S. § 2003-A(2). According to the Defendants:

         “Mr. Long's presence where males were reported to have been drinking in public, and the fact that Mr. Long was next to an open and partially full can of beer in an area the City routinely posts with signs prohibiting public drinking, constitute sufficient information to establish the elements of the crime [of drinking in public.]” Defs.' Mot. at 5.

         Additionally, the Defendants assert that Officer Abbott had probable cause to believe that Mr. Long was loitering in violation of the city of Portland's Code of Ordinances. Id. at 6. The Defendants claim that Officer Abbott was aware of a report of males loitering at 24 Preble Street and found Mr. Long sitting on the stairs in front of that address. Id. Given Mr. Long's presence at the point of ingress and egress to 24 Preble Street, the Defendants argue that Officer Abbott was justified in concluding that Mr. Long was loitering. Id. Accordingly, the Defendants contend that because Officer Abbott had probable cause to believe that Mr. Long was drinking in public and loitering, he also had probable cause to arrest Mr. Long for failing to provide identification. Id.

         In response, Mr. Long asserts that the record fails to establish that Officer Abbott had probable cause to arrest Mr. Long for drinking in public and loitering. Pl.'s Resp. at 1-2 (citing, inter alia, PSAMF ¶¶ 65-67, which includes Assistant Chief Malloch's deposition testimony concerning whether probable cause existed to arrest Mr. Long). Mr. Long points out that Officer Abbott did not observe him drinking in public or “hindering access of a public way to any person or vehicle.” Id. at 2. Because Officer Abbott lacked probable cause to suspect that Mr. Long committed any underlying crime, Mr. Long contends that Officer Abbott had no authority to arrest him for refusing to provide identification. Id. Therefore, Mr. Long asserts that the arrest violated his right to be free from unreasonable seizures under the Fourth Amendment. Id.

         The Defendants reply that Mr. Long's opposition to summary judgment “is premised on speculation, inadmissible evidence, and conclusory assertions, but not upon a genuine issue of material fact.” Defs.' Reply at 1. The Defendants assert, for instance, that Mr. Long has not demonstrated that there was no sweat line on the beer can, nor has he demonstrated that there was no sign prohibiting drinking within 200 feet of 24 Preble Street. Id. More generally, the Defendants contend that Mr. Long has presented no evidence that would undermine Officer Abbott's stated belief that a sign was posted nearby. Id.

         Finally, the Defendants take issue with Mr. Long's reliance on certain statements by Assistant Chief Vernon Malloch. Id. at 2. They point out that Mr. Long cannot rely on Assistant Chief Malloch's opinions because Mr. Long did not designate him as an expert. Id. at 2 (citing Harriman v. Hancock County, 627 F.3d 22, 33 (1st Cir. 2010)).

         b. Search Incident to Arrest

         The Defendants assert that “[i]t is established law that a law enforcement officer may search a person incident to a valid arrest without the requirement of a warrant.” Defs' Mot. at 7 (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)). The Defendants acknowledge that Officer Abbott removed Mr. Long's wallet before he announced that Mr. Long was under arrest. Id. However, they contend that Officer Abbott's conduct was nevertheless a lawful search incident to arrest because Officer Abbott had probable cause to arrest Mr. Long for failing to provide identification at the time he removed Mr. Long's wallet. Id.

         Mr. Long responds that Officer Abbott performed an unlawful search when he reached into his pocket to extract his wallet. Pl.'s Resp. at 2-3. He argues that the search was not incident to an arrest because Officer Abbott conducted the search before arresting him. Id. at 4. Moreover, Mr. Long claims that the search did not constitute a permissible frisk under Terry v. Ohio, 392 U.S. 1 (1968), because Officer Abbott was not concerned for his safety or the safety of others. Id. at 3-4.

         In reply, the Defendants state that a search that occurs immediately before a formal arrest is valid provided that probable cause existed before the search. Defs.' Reply at 2-3 (collecting cases). Because Officer Abbott demonstrated that he had probable cause at the time he removed Mr. Long's wallet, and because the formal arrest occurred immediately thereafter, the Defendants argue that the search was valid under the Fourth Amendment as incident to arrest. Id. at 3.

         c. Excessive Force

         The Defendants contend that Officer Abbott's alleged actions cannot support a claim of excessive force under the Fourth Amendment because his alleged actions were “not objectively unreasonable as a matter of law.” Defs.' Mot. at 8. They point out that the Supreme Court has held that “not every push or shove” constitutes excessive force, id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)), and liken the case to Fernandez-Salicrup v. Figueroa-Sancha, 790 F.3d 312 (1st Cir. 1990), in which the First Circuit held that an officer did not use excessive force when he shoved an individual face-first into a wall for a minor violation, even though the individual did not pose an immediate threat to the officer. Id. at 8-9. Moreover, they claim that the amount of force that Officer Abbott used can be “reliably informed by the fact” that Mr. Long did not suffer any injuries or seek any medical treatment. Id. at 10 (citing Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991)). Therefore, the Defendants claim that Officer Abbott's use of force was not objectively unreasonable, and that they are entitled to summary judgment. Id. at 11.

         In response, Mr. Long argues that Officer Abbott's “gratuitous and completely unnecessary use of force” violated his Fourth Amendment rights. Pl.'s Resp. at 4-8. First, Mr. Long argues that whether the use of force violates the Fourth Amendment “is largely informed by the gravity of the crime[.]” Id. at 5. Thus, he attempts to distinguish Fernandez-Salicrup arguing that in that case, the plaintiff was suspected of “rioting and causing aggravated damages, ” whereas Mr. Long merely refused to produce identification. Id. at 4. Likewise, Mr. Long points out that the officers in Dean suspected that the arrestee was an escaped armed felon. Id. at 5-6. Mr. Long also contends that serious harm is not necessary in order to make out a claim of excessive force, and therefore the fact that Mr. Long did not report any injury does not preclude his excessive force claim. Id. at 6 (citing Lester v. Chicago, 830 F.2d 706, 714 (7th Cir. 1987)).

         Moreover, Mr. Long asserts that Officer Abbott's use of force served “no legitimate penological purpose[.]” Id. at 7. Instead, Mr. Long surmises that Officer Abbott “felt justified in meting out some revenge against Mr. Long for refusing to capitulate to his demands.” Id. at 5. Mr. Long urges the Court to allow a factfinder to determine whether Officer Abbott's shove was sufficiently gratuitous and unnecessary to constitute a violation of his Fourth Amendment rights. Id. at 7-8 (citing Burbank v. Davis, 227 F.Supp.2d 176, 186 (D. Me. 2002) (“if [the officer] gratuitously and unnecessarily hit and manhandled [the arrestee] for no legitimate law enforcement reason it could not be objectively reasonable for it to be non-apparent to him that his actions violated [the arrestee's] rights”)).

         The Defendants reply that Mr. Long fails to distinguish Fernandez-Salicrup, which they characterize as controlling. Defs.' Reply at 3. They also assert that Mr. Long's reliance on Burbank is misplaced because the use of force in that case was dramatically different from a single push in the back. Id. The Defendants admit that Officer Abbott's alleged push of Mr. Long “may have been unnecessary, but it was not unreasonable.” Id. (citing Fernandez-Salicrup, 790 F.3d at 327).

         2. Supervisory Liability Claim Against Chief Sauschuck

         Next, the Defendants assert that the summary judgment record does not support a claim of supervisory liability against Chief Sauschuck. Defs.' Mot. at 11- 13. They contend that there is no evidence that Chief Sauschuck directly participated in the events on August 9, 2014, or that he was deliberately indifferent in a manner that had “some causal connection to the subsequent tort.” Id. at 11-12 (citing Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009)). In particular, the Defendants claim that Chief Sauschuck was not aware of “any custom or practice of the Portland police officers generally-or Officer Abbott in particular-engaging in any of the violations alleged by Mr. Long” or any “deficiencies” in training, supervision, or hiring that would cause the alleged violations. Id. at 12. As such, the Defendants request the Court to enter summary judgment on all claims against Chief Sauschuck. Id. at 13.

         According to Mr. Long, on the other hand, Chief Sauschuck is liable as a supervisor because he has “completely abdicated his duty to supervise and train his officers in the field” on the issue of probable cause. Pl.'s Resp. at 8-9. He asserts that Chief Sauschuck's deposition testimony evidences a deliberate indifference to the constitutional rights of the people with whom his officers interact, and that “such deliberate indifference was the moving force behind the constitutional violations complained of in this case.” Id. at 9. Therefore, Mr. Long contends that he may maintain his claims against Chief Sauschuck under a theory of supervisory liability. Mr. Long asserts no caselaw in support of his assertions.

         In reply, the Defendants assert that Mr. Long mischaracterizes Chief Sauschuck's testimony. Defs.' Reply at 4. They repeat that “there is no evidence of deliberate indifference on the part of Chief Sauschuck” and that he was “not aware of any custom or practice of Portland police officers generally-or Officer Abbott in particular-engaging in any of the violations alleged by Mr. Long.” Id. at 5.

         3. Municipal Liability Claim Against the City of Portland

         The Defendants explain that governmental entity liability under 42 U.S.C. § 1983 requires that the governmental entity adhere to a policy or custom that causes the constitutional violation at issue. Defs.' Mot. at 13 (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)). Moreover, the Defendants assert that “the policy or custom must be the result of acts or omissions of the municipality's policymakers that exhibit ‘deliberate indifference' to the rights of the municipality's inhabitants.” Id. (quoting City of Canton, 489 U.S. at 387-90). According to the Defendants, Mr. Long provides no evidence of such deliberate indifference, much less a policy, custom, or practice that was the motivating force behind the alleged violations. Id. at 14.

         In response, Mr. Long defends his claims against the city of Portland on a theory of municipal liability. Pl.'s Resp. at 10. In particular, Mr. Long asserts that Chief Sauschuck is a policy-maker for the city of Portland whose “policy of abdication and ignorance of the law” was a moving force behind the alleged ...


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