BANGOR, Maine — The Maine Supreme Judicial Court was asked Wednesday to decide if a Pleasant Point police officer can sue Washington County Sheriff Donnie Smith over comments Smith made about the officer’s behavior captured on video in 2006.
The DVD showed Larry W. Hilderbrand II of Perry, who works with the Maine Drug Enforcement Agency, off duty in a car with other people. It shows the officer flash his MDEA badge at the camera, then drink beer from a large mug that had “police officer” printed on it. Hilderbrand then turned to the camera and said: “This is a public safety announcement from Maine Drug Enforcement. Drink responsibly.”
Smith, who has said he does not know who left the DVD in his mailbox, publicly and harshly criticized Hilderbrand’s behavior. The sheriff did not identify him by name but ordered his staff in February 2008 not to work with the MDEA. The sheriff rescinded the decision three days later when he learned that then-Public Safety Commissioner Anne Jordan was familiar with what was depicted on the DVD, the Maine Attorney General’s Office had reviewed it and that Hilderbrand had been disciplined but not charged with a crime or civil violation over it.
Hilderbrand sued the Washington County commissioners and Smith in February 2010 in Washington County Superior Court for slander and invasion of privacy. Superior Court Justice Kevin Cuddy in March 2011 granted summary judgment to the commissioners and Smith.
Hilderbrand’s attorney, Charles March of Portland, appealed the decision concerning Smith but did not appeal Cuddy’s ruling in the commissioners’ favor.
The case was one of 13 appeals justices considered when the state’s high court convened Tuesday and Wednesday at the Penobscot Judicial Center. Neither Hilderbrand nor Smith was in court Wednesday.
Although public officials in Maine are immune from most civil lawsuits related to the performance of their duties, Smith should not be in Hilderbrand’s case, March told the justices on Wednesday and wrote in his brief.
“Sheriff Smith’s campaign attacking Hilderbrand, under these facts, was not essential and he had no duty to do so,” the attorney wrote. “Sheriff Smith’s intentional, strident, defamatory media statements … were not essential to the realization of a governmental objective and would not and did not change the direction of any government policy, program or objective.”
That is one of the tests to determine if an official’s statements or actions are immune from civil actions, March said.
Cassandra Shaffer, the Waterville attorney representing Smith, told the justices that the context of the sheriff’s statements established that he has immunity.
“He’s commissioned by the citizens of Washington County to explain why he does what he does,” she said.
In this case, Smith was explaining through the media why he told his officers not to work with the MDEA, Shaffer said.
“If Smith had any duty,” March countered in his rebuttal, “it should have been to march [the DVD] right over to the [District Attorney’s] Office and ask if there was illegal activity on it.”
Smith stands by his actions and acted appropriately, Shaffer said in an email after the court adjourned its Bangor session.
“The hallmarks of his tenure as sheriff are transparency and professionalism,” she said. “The sheriff looks forward to the Law Court’s decision, and is confident that the dismissal of the lawsuit against him will be upheld.”
Chief Justice Leigh I. Saufley on Wednesday summed up the question of law before the court.
“We’re faced with weigh[ing] the need of government officials to have immunity against an individual’s right not to be slandered,” she said.
There is no timetable under which the court must issue its decision.