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Richards v. Town of Eliot, part 2

B.	State Law Claims
	[¶30]  Apart from the section 1983 claims, Richards also claims that
Godfrey and Stacy are liable under state common law for illegal arrest,
excessive force, and malicious prosecution, and negligent infliction of
emotional distress.  In addition, she claims the officers are liable under
15 M.R.S.A. § 704 (1980) for arresting her without a warrant.  We discuss
each of these claims in turn, and we discuss the defense of immunity of the
officers under the Maine Tort Claims Act, 14 M.R.S.A. § 8111(1) (Supp.

	1.	Illegal Arrest, Excessive Force, and Immunity

	[¶31]  The analysis of the state law claims of illegal arrest and
excessive force is the same as for the federal law claims.  As we discussed
above, a jury could not reasonably find that Godfrey and Stacy lacked
probable cause for Richards' arrest.  Thus, the officers are entitled to
summary judgment on a state law claim for illegal arrest.  However, Richards
has demonstrated genuine and material factual issues on the excessive force
claim, and the officers are not entitled to summary judgment on that state
law claim.{8}
	[¶32]  The police officers are not entitled to summary judgment on
the excessive force claim based on their defense of immunity under the
Maine Tort Claims Act, which gives governmental employees absolute
immunity when performing a discretionary act, 14 M.R.S.A. § 8111(1)(C)
(Supp. 2000), as long as that act is "encompassed by the duties of the
governmental employee," § 8111(1).  If a police officer's conduct exceeds
the scope of his discretion, he may lose the immunity.  See Polley v. Atwell,
581 A.2d 410, 413-14 (Me. 1990).  If the officer uses excessive force in
executing an arrest, such action is beyond the scope of the officer's
discretion.  In determining whether a police officer has used excessive
force, the same "reasonableness" factors articulated in Graham v. Connor are
relevant.  490 U.S. at 396.  Officers whose actions are "'objectively
reasonable' in light of the facts and circumstances confronting them," id.,
are not acting beyond the scope of their discretion and are immune under
the Maine Tort Claims Act.  In this case there is a genuine issue of material
fact as to whether Godfrey and Stacy used excessive force against Richards. 
See Hodsdon v. Town of Greenville, 52 F. Supp. 2d 117, 126 (D. Me. 1999)
(finding genuine issue of material fact on scope of officer's discretion where
plaintiff alleged that officer kicked him, banged his head on hood of car,
handcuffed him with unnecessary force, and repeatedly slammed his face
into the ground); Comfort, 924 F. Supp. at 1237 (finding genuine issue of
material fact on scope of officers' discretion based on allegation that officers
handcuffed plaintiff, hit him in head, and shoved his head against door

	2.	Malicious Prosecution

	[¶33]  To succeed in her state law claim for malicious prosecution,
Richards must prove "that criminal proceedings were instituted against
[her] without probable cause and with malice, [and] that [she] received a
favorable termination of the proceedings."  Nadeau v. State, 395 A.2d 107,
116 (Me. 1978).  As discussed above, the evidence, considered in the light
most favorable to Richards, is insufficient to raise a genuine dispute with
regard to probable cause.  Although the district attorney declined to
prosecute Richards and no criminal proceedings were actually initiated
against her, there was probable cause to do so, just as there was probable
cause to arrest her.  For this reason, the Superior Court properly granted
summary judgment to Godfrey and Stacy on the state law claim of malicious

	3.	Negligent Infliction of Emotional Distress

	[¶34]  The Superior Court interpreted Richards' request for emotional
distress damages as a claim for negligent infliction of emotional distress and
granted summary judgment to Godfrey and Stacy.  Except in bystander
cases, see Culbert v. Sampson's Supermarkets Inc., 444 A.2d 433 (Me.
1992), the tort of negligent infliction of emotional distress requires either a
unique relationship between the plaintiff and the defendant, or an
underlying tort, see Bryan R. v. Watchtower Bible & Tract Soc'y, 1999 ME
144, ¶ 31, 738 A.2d 839, 848, cert. denied, 528 U.S. 1189 (2000).  In this
case there is no suggestion of a unique relationship between Richards and
either of the police officers.  Although the excessive force claim can be
viewed as an underlying tort, if Richards prevails on that claim and proves
that she suffered emotional distress, she is entitled to an award of damages
for the emotional distress.  Thus, any claim she may have made for the
negligent infliction of emotional distress is subsumed in her excessive force
claim.  See Rippett v. Bemis, 672 A.2d 82, 87-88 (Me. 1996).  The Superior
Court was correct in its grant of summary judgment.

	4.	Statutory Claim Under 15 M.R.S.A. § 704

	[¶35]  Richards asserts a statutory cause of action under 15 M.R.S.A.
§ 704 (1980) claiming that Godfrey and Stacy acted wantonly or
oppressively in arresting her.  The statute provides that every police officer
shall arrest and detain persons found violating any law of the State until a
warrant can be obtained; however, an officer who acts "wantonly or
oppressively" in arresting a person, or detains a person without a warrant
longer than is necessary to procure it, shall be liable in damages.{9}  The
officers offer two defenses against this claim: (1) their alleged actions do not
rise to the level of wanton or oppressive conduct; and (2) section 704 no
longer remains in effect after the enactment of the Maine Tort Claims Act.
	[¶36]  On appeal, Richards argues that the officers violated 15 M.R.S.A.
§ 704 by detaining her without obtaining a warrant.  As discussed above, the
officers had probable cause to arrest Richards for criminal restraint. 
Because the offense was committed in the presence of the officers, they did
not need a warrant.  See 17-A M.R.S.A. § 15(1)(B) (Supp. 2000).  Once
arrested, Richards was transported to the Kittery Police Department where
she was booked on the charge of criminal restraint and then released from
custody.  These facts are insufficient to support a claim that Richards was
detained without a warrant longer than necessary in violation of 15 M.R.S.A.
§ 704.  The Superior Court did not err, therefore, in granting summary
judgment to the officers on the section 704 claim.{10}
	[¶37]  Richards claims that the Town of Eliot, in addition to Godfrey
and Stacy, violated her constitutional rights by unlawfully arresting her and
using excessive force against her.  She also brings her state law claims of
illegal arrest, excessive force, negligent infliction of emotional distress, and
violation of section 704 against the Town.  In addition, she claims that the
Town negligently supervised and trained Godfrey and Stacy.

A.	Section 1983 Claims

	[¶38]  "[A] municipality can be found liable under § 1983 only where
the municipality itself causes the constitutional violation at issue. 
Respondeat superior or vicarious liability will not attach under § 1983." 
Canton v. Harris, 489 U.S. 378, 385 (1989).  Therefore, because the section
1983 claims of illegal arrest and excessive force are based solely upon the
actions of the Town's employees, the Town is not liable.  Summary judgment
on behalf of the Town is appropriate on Richards' section 1983 claims for
illegal arrest and excessive force. 
	[¶39]  A municipality can be liable under section 1983 for inadequate
police training, but "only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into
contact."  Id. at 388 (emphasis added).  None of the statements of material
fact provided by Richards in her Rule 7(d) statement allege any facts from
which it could be inferred that, to the extent the Town failed to train or
supervise its police officers, such failure rose to the level of deliberate
indifference.  Her statement recites that Stacy received minimal training on
probable cause, the use of nondeadly force, and how to diffuse a situation. 
Although Richards alleges that the Town does not enforce its policy of
reporting the use of force by officers, this does not amount to deliberate
indifference, particularly in light of the fact that no other incident of
excessive force is alleged, whether by these police officers or other Town
officers.  Generally speaking, a single incident of excessive force is
insufficient to impose section 1983 liability on a municipality.  See City of
Okla. City v. Tuttle, 471 U.S. 808, 823-24 (1985).  Richards presents
insufficient evidence to support her claims of municipal liability based on
the alleged inadequate training and supervision of Officers Stacy and
B.	State Law Claims

	[¶40]  The state law claims against the Town for illegal arrest,
excessive force, negligent infliction of emotional distress, and violation of
15 M.R.S.A. § 704 are all based upon respondeat superior.  We have
determined that Richards did not present sufficient evidence to defeat the
officers' motion for summary judgment on the illegal arrest and section 704
claims, and we have concluded that any claim for negligent infliction of
emotional distress is subsumed in the excessive force claim.  It follows,
therefore, that Richards cannot show liability of the Town for the officers'
actions on those claims.
	[¶41]  With regard to the claim of excessive force, we must determine
whether the Town can be liable for the acts of its two employees.  Likewise,
we must determine whether the Town is entitled to immunity on Richards'
claim of negligence based on the Town's inadequate training and supervision
of the police officers. 
	[¶42]  Pursuant to the Maine Tort Claims Act, towns are immune from
suit on tort claims unless the Act expressly removes immunity.  14 M.R.S.A.
§ 8103(1) (1980); Danforth v. Gottardi, 667 A.2d 847, 848 (Me. 1995). 
There are two provisions of the Act that provide exceptions to the immunity
of a municipality.  Section 8104-A lists various exceptions to immunity, but
none are relevant to Richards' claims.  14 M.R.S.A. § 8104-A (Supp. 2000). 
The other possible exception to immunity is section 8116, which provides
that, to the extent a municipality has obtained insurance for tort claims
against it, the municipality is liable to the limits of the insurance coverage. 
14 M.R.S.A. § 8116 (Supp. 2000); Napier v. Town of Windham, 187 F.3d
177, 191 (1st Cir. 1999); Moore v. City of Lewiston, 596 A.2d 612, 614-15
(Me. 1991).  Richards did not argue either to the Superior Court or this
Court that section 8116 is applicable to this case, and, therefore, we decline
to examine whether the Town may have waived its immunity.  The Superior
Court correctly granted summary judgment to the Town of Eliot.
	The entry is:
Judgment, as against the individual
defendants, vacated on the excessive force
claims.  Judgment affirmed in all other
Attorney for plaintiff: Brian T. Stern, Esq. 86 Locust Street Portsmouth, NH 03820-3769 Attorneys for defendants: John J. Wall III, Esq. Christopher C. Dinan, Esq. Monaghan Leahy, LLP P O Box 7046 Portland, Me 04112-7046
FOOTNOTES******************************** {1} . These facts are taken primarily from Richards' statement of material facts filed pursuant to M.R. Civ. P. 7(d) which was the effective rule at the time the statement was filed. Rule 7(d) was abrogated effective January 1, 2001; M.R. Civ. P. 56(h) now governs statements of material facts. {2} . We do not separately address the count in Richards' complaint for violation of the Town of Eliot's procedures insofar as it alleges a state law claim. Richards has provided no evidence or information regarding the promulgation of the Town police procedures or the authority for the promulgation. Furthermore, she has made no argument in this Court or the Superior Court that a violation of the Town's procedures gives rise to a cause of action for damages. Because she has not pointed to any authority in the procedures themselves or the authorizing legislation or any other statute or authority that a violation of the Town's procedures, in and of itself, gives rise to a cause of action for damages, we do not address the claim. See Goodwin v. Sch. Admin. Dist. No. 35, 1998 ME 263, ¶¶ 18, 19, 721 A.2d 642, 647 (holding that state education regulations do not provide a cause of action for attorney fees in absence of explicit authority creating such a remedy). {3} . Section 1983 of Title 42 of the United States Code provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C.A. § 1983 (Pamph. 2001). {4} . If the person retained is under the age of eight, the crime is Class C; otherwise it is Class D. 17-A M.R.S.A. § 302(3) (Supp. 2000). {5} . Richards also argues that the officers did not know the age of the child, and therefore, could not arrest her without a warrant for a Class C offense not committed in their presence. However, the undisputed evidence is that Godfrey knew that the child was pre-school age. At any rate, the age of the child is immaterial because the Class D offense was committed in the presence of the officers. See 17-A M.R.S.A. § 15(1)(B) (Supp. 2000) (permitting warrantless arrests for Class D offenses committed in presence of officer). Richards' additional argument that the officers failed to adequately investigate is without merit. Richards' own description of events reveals that she hindered their investigation by providing minimal information in response to their questions and by walking away from the officers rather than speaking to them. {6} . Richards does not appear to argue that the violation of the municipal police procedures by Stacy and Godfrey constitutes a deprivation of Richards' constitutional rights, but rather that the violation of the procedures is evidence of the unreasonableness of the force used by the officers. {7} . The court noted that the plaintiff posed no threat; was not involved in a violent crime; did not resist arrest or attempt to flee; and there were two officers present. 910 F. Supp. at 800-01. {8} . The state law claim of excessive force is a subset of the common law tort that we refer to as assault and battery. See Paradis v. Beaulieu, 120 Me. 70, 71, 112 A. 718, 719 (1921). A battery may be committed by a mere touching of another. See Jack H. Simmons et al., Maine Tort Law § 1.01 (2001). Law enforcement officials, however, are immune from liability from such touching within the scope of their discretion. Because that discretion is exceeded when excessive force is used, the tort has come to be called excessive force when alleged against an officer. {9} . 15 M.R.S.A. § 704 provides, Every sheriff, deputy sheriff, constable, city or deputy marshal, or police officer shall arrest and detain persons found violating any law of the State or any legal ordinance or bylaw of a town, until a legal warrant can be obtained and may arrest and detain such persons against whom a warrant has been issued though the officer does not have the warrant in his possession at the time of the arrest, and they shall be entitled to legal fees for such service; but if, in so doing, he acts wantonly or oppressively, or detains a person without a warrant longer than is necessary to procure it, he shall be liable to such person for the damages suffered thereby. (emphasis added). {10} . Richards does not argue on appeal that the officers' use of excessive force in effecting her arrest constitutes wanton or oppressive conduct in contravention of section 704. Because Richards does not brief this issue, we need not consider whether the officers' alleged actions rise to the level of wanton or oppressive conduct, or whether section 704 was abrogated by the passage of the Maine Tort Claims Act, 14 M.R.S.A. §§ 8101-8118 (1980 & Supp. 2000). See Biette v. Scott Dugas Trucking & Excavating, Inc., 676 A.2d 490, 494 (Me. 1996) (issues that are not briefed are not considered on appeal).

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