A former University of Maine student’s lawsuit against two Orono police officers may go forward after the 1st U.S. Circuit Court of Appeals in Boston reversed a federal judge’s decision to dismiss the complaint.
In a split decision issued Friday, two of three judges agreed that the officers could be sued for knocking on the bedroom window of Christopher French, 26, of Prides Crossing, Massachusetts, and yelling for him to come out to speak with them at about 5 a.m. on Sept. 14, 2016.
The appellate court agreed with U.S. Magistrate Judge John Nivison that the officers should have obtained a warrant before trying to rouse French but reversed his finding that the officers could not be sued under the state’s “qualified immunity” law.
The appellate court applied a 2013 Supreme Court case to its decision in the Orono case, said French’s attorney, Timothy Woodcock of Bangor. The U.S. Supreme Court found in 2013 that anyone has a “social license” to knock on another person’s door, but that the visitor must leave if the occupants don’t answer or indicate they want the visitor to leave.
The same applies to the police, Woodcock said.
“We believe the First Circuit correctly interpreted Supreme Court law on this matter,” he said. “The decision protects Maine residents in their homes from unwarranted intrusions by police and makes it clear that police without a warrant have no greater right to be on your property than a private citizen does. If an occupant makes it clear through words or actions that the police presence is unwanted, they must leave.”
An exception would be if police believed an occupant of the residence was at risk of immediate harm from the person with whom officers wished to speak.
It was the first time the Supreme Court’s decision in Florida v. Jardines has been applied in the 1st Circuit, which is made up of Maine, New Hampshire, Massachusetts, Rhode Island and Puerto Rico.
Qualified immunity protects government officials and employees, including police officers, from lawsuits but makes exceptions if they violate a constitutional or “clearly established” right, according to the Legal Information Institute at the Cornell Law School.
French sued four Orono officers, Police Chief Josh Ewing and the town in federal court in Bangor in May 2018 over his encounters with police in February and September 2016 when French was a university student and living off campus. In both incidents, which involved an ex-girlfriend, French was charged but the charges were later dismissed.
Nivison last year granted summary judgment to the police and Orono, dismissing the case. French appealed, and a three-judge panel heard oral arguments in February.
In the same ruling issued Friday, the appellate court upheld the dismissal of the case against two other Orono officers. The dismissals of the police chief and the town from the lawsuit were not appealed.
Judges Kermit Lipez of Maine and David Barron of Massachusetts voted to reverse Nivison’s decision. They said that the Jardines decision put police in Orono and the nation on notice that if a suspect did not come out of a residence or indicated by covering windows that he did not want to talk to police, as French did, officers must leave and return with a warrant.
Judge Sandra Lynch of Massachusetts strongly disagreed.
She said that when they approached French’s residence, the officers had been told by his former girlfriend that French had twice that night broken into her house and stolen her phone. The woman told police she was afraid of him and scared of what French might do if he accessed the contents of her phone.
“Given these circumstances and the state of the law in 2016, the officers’ choice to knock several times at French’s door and window shortly after the second break-in was reasonable,” Lynch said. “Nothing in Jardines clearly established otherwise. The officers in this case acted sensibly and with restraint, and most certainly should not be deprived of qualified immunity.”
Edward Benjamin, one of two Portland attorneys representing Orono and its officers, said Monday that a decision has not been made about whether to ask for a hearing before all the appellate judges in Boston.
French continues to seek a jury trial.