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Richards v. Town of Eliot
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 132
Docket:	Yor-00-405
 on Briefs: 	December 20, 2000
Decided:	September 10, 2001




	[¶1]  Karen Richards appeals from the summary judgment entered in
the Superior Court (York County, Fritzsche, J.) in favor of the Town of Eliot
and Eliot Police Officers Michael Stacy and Wayne Godfrey on all counts of
Richards' complaint alleging police misconduct.  We affirm in part and
vacate in part.
	[¶2]  Many of the facts are disputed.  For the purposes of this appeal
from the grant of a summary judgment motion, we recite the disputed facts
in the light most favorable to Richards, the nonprevailing party.{1}
	[¶3]  On October 2, 1996, Karen Richards' son, Daniel, left his
three-year-old daughter at Richards' residence in the care of Richards'
seventeen-year-old daughter, Kimberly.  Daniel was separated from his wife,
Jennifer, the mother of their three-year-old.  Daniel often spent the night at
Richards' house with the child.
	[¶4]  At around 11:30 p.m., Jennifer arrived at Richards' residence to
pick up her daughter.  Believing that Jennifer was intoxicated, Richards told
Jennifer that she would have to wait until Daniel returned.  After getting into
a physical confrontation with Kimberly in the driveway, Jennifer left.  Soon
thereafter, Jennifer telephoned the Eliot Police Department and spoke with
Officer Michael Stacy.  Jennifer told Stacy that she went to Richards'
residence to pick up her child, but Richards refused to give her the girl. 
Jennifer further told Stacy that Richards physically kicked her off the porch. 
In response to further questioning, Jennifer told Stacy that there was no
custody order regarding her daughter.
	[¶5]  Stacy went to Richards' house accompanied by Eliot Police
Officer Wayne Godfrey with the intention of retrieving the child.  Neither
Stacy nor Godfrey knew the age of the child, but it is undisputed that
Godfrey knew that the child was not yet school age.  Stacy and Godfrey
knocked on the door for several minutes before Richards answered. 
Richards stepped onto the unlit porch, and Stacy used his flashlight to
illuminate her.  Richards had a cordless telephone with her.  When Stacy
asked Richards why she had not turned the child over to the child's mother,
Richards told the officers that she was not responsible for the child, was not
watching her, and did not have the authority to turn her over to anyone.  She
did not inform them that Kimberly was babysitting the child inside the
house.  For several minutes Richards asked the officers to try to contact her
son, Daniel, but they refused.  Richards then stepped off the porch and
began walking toward her mother's house next door.  As she walked, she
dialed her boyfriend's number on her telephone.
	[¶6]  Richards had walked about seventy-five feet across the yard when
one of the officers said, "If you don't stop right there, you will be under
arrest."  Richards immediately stopped walking.  At that same time,
Richards' boyfriend answered the phone, and Richards pleaded with him to
come to her house.  Stacy stepped in front of Richards.  Richards turned
away from him, but she did not take a step.
	[¶7]  Suddenly, Richards was struck from behind with substantial
force.  She landed face down on the ground with her hands beneath her
body.  While she was on the ground, the officers pulled her hands out from
under her and pressed their knees into her side and her back.  The officers
never asked Richards to put her hands behind her back, nor did she resist
their efforts to put her in handcuffs.  They lifted her off the ground by the
handcuffs, rather than by her arms, and took her to a police cruiser.  She
suffered severe pain in her shoulders.  She complained that her handcuffs
were too tight.
	[¶8]  The officers transported Richards to the Kittery Police
Department where she was charged with criminal restraint in violation of
17-A M.R.S.A. § 302 (1983 & Supp. 2000).  Subsequently, the York County
District Attorney's Office declined to prosecute Richards.
	[¶9]  When Richards was released from the police department, she
went directly to the hospital emergency room complaining of pain in her
ribs, back, and shoulders.  The doctor diagnosed shoulder strain and wrist
contusion.  Richards had visible bruises on her ribs, wrist, shoulders, neck,
back, and face.	
	[¶10]  Richards filed a nine-count complaint against the Town of Eliot,
Stacy, and Godfrey.  The claims asserted against all defendants are for
unlawful arrest, excessive force, negligent infliction of emotional distress,
violation of constitutional rights, and violation of 15 M.R.S.A. § 704 (1980). 
Two claims are asserted against the Town for negligent hiring and
supervision.  In addition, there are two claims asserted only against the two
officers: malicious prosecution and violation of municipal procedures.{2}  The
Town and the individual officers moved for summary judgment on all counts
of Richards' complaint on the grounds that the facts do not give rise to the
claims and that the Town and officers are entitled to immunity.  The court
granted the motion, giving judgment to the defendants on all counts. 
Richards' motion for reconsideration was denied.
	[¶11]  On appeal from a grant of a summary judgment, "[w]e review
the evidence in the light most favorable to the nonprevailing party to
determine whether the record supports the conclusion that there is no
genuine issue of material fact and that the prevailing party was entitled to
judgment as a matter of law."  Northup v. Poling, 2000 ME 199, ¶ 6, 761
A.2d 872, 874.  "The trial court appropriately enters summary judgment
when 'the party that bears the burden of proof on an essential element at
trial has presented evidence that, if she presented no more, would entitle
the opposing party to a judgment as a matter of law.'"  Smith v. Cannell,
1999 ME 19, ¶ 6, 723 A.2d 876, 878-79 (quoting June Roberts Agency, Inc.
v. Venture Props., Inc., 676 A.2d 46, 48 (Me. 1996)).
A.	Claims Alleging Violation of Richards' Constitutional Rights

	[¶12]  Richards claims that her constitutional rights under the Fourth
and Fourteenth Amendments to the United States Constitution were violated
by Officers Stacy and Godfrey because they arrested her unlawfully, used
excessive force on her, and prosecuted her maliciously.  Although she does
not expressly articulate in her complaint that these claims are brought
pursuant to 42 U.S.C.A. § 1983 (Pamph. 2001), Richards' memorandum of
law in the Superior Court and her brief in this Court state that such claims
are section 1983 claims.{3}  We will discuss each of the section 1983 claims
separately, followed by a discussion on qualified immunity.

	1.	Unlawful Arrest

	[¶13]  In an unlawful arrest action brought pursuant to section 1983,
"summary judgment is appropriate only if no reasonable jury could find that
the officers did or did not have probable cause to arrest."  McKenzie v.
Lamb, 738 F.2d 1005, 1008 (9th Cir. 1984).  We have said that "[p]robable
cause to arrest exists when facts and circumstances of which the arresting
officer has reasonably trustworthy information would warrant an ordinarily
prudent and cautious police officer to believe the subject did commit or was
committing a crime."  State v. Boylan, 665 A.2d 1016, 1019 (Me. 1995). 
"[T]he existence of probable cause (and, in turn, the validity of an ensuing
arrest) is gauged by an objective standard; as long as the circumstances
surrounding the event warrant the officer's reasonable belief that the action
taken is appropriate, the arrest is justified."  Logue v. Dore, 103 F.3d 1040,
1044 (1st Cir. 1997).   
	[¶14]  Officers Stacy and Godfrey arrested Richards for criminal
restraint.  It is a crime for a person, who knows she has no legal right to do
so, to knowingly or intentionally retain a person under age fourteen.  17-A
M.R.S.A. § 302(1)(A)(1) (Supp. 2000).{4}  The information given to Stacy by
Jennifer, which was reasonably trustworthy, was that there was no court
order regarding the custody of the child.  Stacy and Godfrey were aware, or
should have been aware, that in the absence of a court order to the contrary,
parents are the natural custodians of a child.  19-A M.R.S.A. § 1651 (1998). 
This means that they could have reasonably believed that any person, other
than the child's father, who refused Jennifer's request to turn the child over
to her, was illegally restraining the child.
	[¶15]  The knowledge of Stacy and Godfrey before they arrived at
Richards' residence was that Jennifer had gone to Richards' residence a
short time earlier to pick up her child; that Richards had refused to give the
child to the mother; and that there was no custody order.  Once they arrived
at Richards' home and asked Richards why she did not hand over the child
to Jennifer, Richards stated that she did not have the authority to do so. 
Rather than trying to explain the situation to the officers, Richards began
walking away from them across the lawn.  Based on the objective facts, no
reasonable jury could find that the officers lacked probable cause to arrest
Richards for criminal restraint.
	[¶16]  Richards seems to argue that the officers lacked probable cause
to arrest her because they did not directly ask Richards to get the child and
turn her over to them.  However, it was objectively reasonable for the
officers to believe that Richards understood from their questions that the
purpose of their visit was to retrieve the child.  When Richards asserted that
she did not have the authority to turn over the child to anyone and walked
away from the officers while they were speaking to her, they were justified
in believing that Richards was knowingly retaining the child in her
residence with no legal right to do so in violation of 17-A M.R.S.A. § 302.  
The Superior Court did not err, therefore, in granting summary judgment to
the officers on the claim of illegal arrest.{5}

	2.	Excessive Force

	[¶17]  For Richards' excessive force claim, the issue is whether the
evidence, in the light most favorable to Richards, raises a genuine dispute as
to the reasonableness of the force used by the officers.  See Foster v. Metro.
Airports Comm'n, 914 F.2d 1076, 1081 (8th Cir. 1990).  The
reasonableness of the force used by a police officer is analyzed in light of the
"objective reasonableness" standard of the Fourth Amendment.  Graham v.
Connor, 490 U.S. 386, 397 (1989).  "[T]he question is whether the officers'
actions are 'objectively reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation." 
Id.  The Supreme Court articulated the Fourth Amendment reasonableness
test as "requir[ing] careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by
flight."  Id. at 396.
	[¶18]  Richards also points to the criteria contained in the Town of
Eliot's written police procedures concerning the use of force and argues
that Godfrey and Stacy's violation of those procedures demonstrates that the
force they used was not reasonable.{6}  The Town's police procedures rely
upon the above-quoted factors from Graham v. Connor as guidelines to
determine whether force has been excessively applied.  In addition, the
procedures also state: "In evaluating the reasonable application of force,
officers must consider factors, such as: age, size, strength, skill level with
department weapons, state of health, and the number of officer[s] opposing
the number of suspects."
	[¶19]  Viewing the evidence in the light most favorable to Richards,
she did not resist arrest or attempt to evade arrest.  Although Richards
walked away from the officers, she was not under arrest or seized at that
time.  When the officers told her she would be arrested if she did not stop,
she immediately stopped walking.  While the crime of criminal restraint is
far from a petty offense, the information that the officers had regarding the
manner of the commission of the crime demonstrated that it was not
committed with any threat of secreting the child or violence toward the
child.  Although Jennifer had reported that Richards kicked her off the
porch, Richards did not act violently toward the officers at any time; she did
not pose an obvious safety threat to the officers; and she was alone.  Thus,
the facts and circumstances of this particular arrest, in the light of the
evidence most favorable to Richards, are such that a jury could rationally
determine that the force used by Stacy and Godfrey was unreasonable and
	[¶20]  The officers argue that the nature of Richards' physical injuries,
demonstrate that excessive force was not used.  The extent of injuries may
be considered in determining whether the force used was reasonable under
the facts and circumstances of a particular case.  See Dean v. City of
Worcester, 924 F.2d 364, 369 (1st Cir. 1991) (finding minor physical
injuries insufficient to support an inference that the officers used inordinate
force, where the officers mistook plaintiff for an escaped, armed felon,
whom the officers reasonably believed would resist with deadly force). 
Although Richards suffered relatively minor bodily injuries as a result of the
officers' actions, the extent of the injuries is not the only indication of
excessive force.  Considering the nonviolent nature of the offense, Richards'
lack of physical resistance to the arrest, and the scarcity of circumstances
suggesting a safety threat to the officers, a jury could reasonably find that the
force allegedly used by the officers was unreasonable.

	3.	Malicious Prosecution

	[¶21]  Maliciously prosecuting a person does not mean that the
person's constitutional rights are violated unless "misuse of the legal
proceedings is so egregious as to subject the individual to a deprivation of a
constitutional dimension . . . ."  Torres v. Superintendent of Police of Puerto
Rico, 893 F.2d 404, 409 (1st Cir. 1990).  Insofar as Richards claims that the
malicious prosecution by Godfrey and Stacy violated her rights to substantive
or procedural due process under the Fourteenth Amendment to the United
States Constitution, such claim cannot stand.  "There is no substantive due
process right under the Fourteenth Amendment to be free from malicious
prosecution . . . ."  Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249,
256 (1st Cir. 1996) (citing Albright v. Oliver, 510 U.S. 266, 268-75 (1994)
(plurality op.)).  Likewise, a section 1983 claim for malicious prosecution
based on a deprivation of procedural due process will not lie when, as here,
there is a state law claim for malicious prosecution.  Meehan v. Town of
Plymouth, 167 F.3d 85, 88 (1st Cir. 1999).  
	[¶22]  If Richards' section 1983 malicious prosecution claim is based
on a deprivation of Fourth Amendment rights, it also fails.  Such a claim
requires a showing that the prosecution was initiated without probable
cause.  Id. at 88-89.  As stated above, Godfrey and Stacy had probable cause
to arrest Richards, and the appropriate authorities had probable cause to
initiate criminal proceedings against her.

	4.	Defense of Qualified Immunity

	[¶23]  Having determined that there is a genuine issue of material fact
on one of Richards' section 1983 claims against the police officers, that is,
the excessive force claim, we must determine whether the officers are
nevertheless entitled to qualified immunity for their conduct. 
"[G]overnment officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known."  Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982).
	[¶24]  In a recent case the Supreme Court articulated the twofold
inquiry that must be made when police officers raise a defense of qualified
immunity to a claim of excessive force.  Saucier v. Katz, 121 S. Ct. 2151,
2155 (2001).  The threshold question is: "Taken in the light most favorable
to the party asserting the injury, do the facts alleged show the officer's
conduct violated a constitutional right?"  Id. at 2156.  We have conducted
this inquiry in our discussion at Part III, A, 2, above and determined that the
facts taken in the light most favorable to Richards demonstrate that her
Fourth Amendment rights were violated by the force utilized by Stacy and
	[¶25]  The second question, enunciated in Saucier v. Katz, "is to ask
whether the right was clearly established."  Id.  This question cannot be
answered with the general proposition that the use of force is a violation of a
person's constitutional rights if the force is excessive under the objective
standards of reasonableness.  Rather, it must be answered "in light of the
specific context of the case."  Id.  "The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted."  Id.
	[¶26]  Our review of the excessive force cases decided before the date
that Richards was arrested, particularly the Maine cases, convinces us that
the right was clearly established.  The federal court for the District of Maine
has held that police officers in similar situations using similar degrees of
force had violated plaintiffs' constitutional rights.  In each of the following
cases the court denied summary judgment to the police officers on the
excessive force claim and the qualified immunity defense, thereby
determining that the plaintiff's version of the facts was sufficient, if believed
by the factfinder, to support a judgment against the officers: Comfort v.
Town of Pittsfield, 924 F. Supp. 1219 (D. Me. 1996) (after arresting plaintiff
for operating under the influence, police rammed plaintiff's head into door
jamb, causing him to fall and hit his head on the floor); Barber v. Guay, 910
F. Supp. 790 (D. Me. 1995) (after arresting plaintiff for theft, deputy
wrenched plaintiff's shoulder; twisted his wrist behind his back; and threw
him into the cruiser head first);{7} Brooks v. Bailey, No. 95-22-P-H 1995 WL
746340 (D. Me. Dec. 8, 1995) (in arresting plaintiff for criminal trespass,
police pushed him against a tree; jerked his handcuffs; banged his head
against the cruiser; pushed him into cruiser so he ended up face down on
floor; and pulled him out by his feet causing him to fall face down on
ground); McPherson v. Auger, 842 F. Supp. 25 (D. Me. 1994) (police
handcuffed plaintiff's wrists too tightly and refused to loosen them after
plaintiff was arrested for refusing to sign a traffic ticket); McLain v. Milligan,
847 F. Supp. 970 (D. Me. 1994) (in arresting plaintiff for disorderly conduct,
police twisted plaintiff's arms behind his back; picked him up off the floor
and carried him out of apartment; kicked his legs out from under him;
forced him to his knees; slammed his chest and face onto concrete; kneed
him in his back; and slammed his face onto the pavement).  
	[¶27]  These cases made clear that, when arresting a person for a
nonviolent offense when she is not attempting to flee or resisting arrest and
is not a threat to the officers' safety, striking her with sufficient force to
knock her to the ground, kneeing her in the ribs while she was face-down
on the ground, lifting her by the handcuffs, and causing severe pain,
constitutes conduct that is excessive and unreasonable.  The number of
cases with similar factual scenarios, all concluding that the force used by the
police was excessive, would have made it clear to a reasonable police officer,
at the time of the Richards incident, that the alleged force against Richards,
in the situation alleged by Richards, was unlawful.
	[¶28]  Thus, having examined both prongs of the qualified immunity
inquiry, we conclude that the facts, viewed in the light most favorable to
Richards, show that the force used by Stacy and Godfrey, when viewed
under objective standards of reasonableness, was excessive, and that it
would be clear to a reasonable officer, at the time these events took place,
that the force used against Richards, given all of the facts surrounding that
situation, was unlawful.
	[¶29]  In summary, the Superior Court correctly granted summary
judgment to Godfrey and Stacy on the section 1983 claims for illegal arrest
and malicious prosecution.  The police officers, however, were not entitled
to summary judgment on the section 1983 claim of excessive force, and that
portion of the court's judgment will be vacated.

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