HOPKINS et al v. CITY OF CALAIS POLICE DEPARTMENT et al

Filing 87

DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANTS MOTION TO STRIKE granting in part and denying in part 66 Motion for Summary Judgment; denying 76 Motion to Strike; denying 80 Motion for Judgment as a Matter of Law By JUDGE D. BROCK HORNBY. (nwd)

DISTRICT COURT
DISTRICT OF MAINE
RICHARD HOPKINS
JAMES HOPKINS,

AND

PLAINTIFFS
V.

DAVID CLARONI,
DEFENDANT

)
)
)
)
)
)
)
)
)
)

CIVIL NO. 1:13-CV-229-DBH

DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT AND DEFENDANT’S MOTION TO STRIKE
Calais police officer David Claroni has moved for partial summary
judgment on the claims of two pro se plaintiffs, Richard and James Hopkins (the
Hopkins Brothers, as they call themselves).

They, in turn, have moved for

summary judgment on some of their claims.1 All the claims arise out of Officer
Claroni’s traffic stop of the Hopkins Brothers and their vehicle (Richard Hopkins
was driving; James Hopkins was the passenger) in Calais, Maine, at around 6
p.m. on November 14, 2008. I GRANT

IN PART AND

DENY

IN PART

the defendant’s

motion for partial summary judgment (“Def.’s Mot.”) (ECF No. 66). In doing so,
I view the facts in the light most favorable to the Hopkins Brothers as the nonmoving parties, and I also consider the 2010 Advisory Committee Note to Rule

They styled their motion as a Motion for Judgment as a Matter of Law, but since evidentiary
materials are involved, I have treated it as a Motion for Summary Judgment. (It is also premature
as a motion for judgment as a matter of law because trial has not yet begun. See Fed. R. Civ. P.
50.)
1

56(e) that “[m]any courts take extra care with pro se litigants, advising them of
the need to respond and the risk of losing by summary judgment if an adequate
response is not filed.

And the court may seek to reassure itself by some

examination of the record before granting summary judgment against a pro se
litigant.”2 In that light, I DENY the defendant’s motion to strike the plaintiffs’
response in opposition to the motion for partial summary judgment (ECF No.
76). I also DENY the plaintiffs’ motion for summary judgment (“Pls.’ Mot.”) (ECF
No. 80).
FACTS3
Based upon a telephone call from off-duty sheriff’s deputy Thomas
Chambers, whom Officer Claroni knew, Claroni pulled over the Hopkins vehicle
for running a stop sign. The Hopkins Brothers both denied the traffic infraction.
The succeeding interchange between Officer Claroni and the Hopkins Brothers
became increasingly testy; Richard Hopkins refused to wind his window down
sufficiently to the officer’s satisfaction; Claroni claimed to smell alcohol coming

Certainly the plaintiffs failed to comply with Local Rule 56, a not uncommon failing among nonlawyers. But the summary judgment record here is unusually accessible as a result of testimony
in a previous trial, see note 3 infra, and depositions in this case.
3 The plaintiffs have furnished excerpts from what they say is a transcript of the Maine Superior
Court (Washington County) criminal trial of James Hopkins, specifically testimony of Duane
McLellan, Officer Claroni, and the Hopkins Brothers. The transcript is not certified. The
defendant objects on the basis that Officer Claroni was not a party at the trial and that all the
testimony at that trial is by definition inadmissible hearsay. The defendant does not challenge
the transcript’s authenticity or lack of certification or the fairness of the excerpts. I reject the
hearsay challenge and the challenge based on Claroni not being a party. (Claim and issue
preclusion are not at stake.) Trial testimony, like affidavits and deposition testimony, can be
considered on a summary judgment motion. “The controlling rule in this context is Fed. R. Civ.
P. 56―which, as construed by the First Circuit, permits consideration of hearing testimony taken
in other proceedings.” Adams v. Rite Aid of Maine, Inc., No. 00-226-P-H, 2001 WL 320894, at
*3 (D. Me. Mar. 5, 2001); Advance Fin. Corp. v. Isla Rica Sales, Inc., 747 F.2d 21, 27 (1st Cir.
1984) (“[T]here is no sensible rationale which would preclude reliance on sworn testimony
faithfully recorded during the conduct of a judicially-supervised adversarial proceeding.”). I
therefore rely upon admissible parts of the trial transcript, as submitted, in describing some of
the facts in a light favorable to the plaintiffs.
2

2

from the vehicle; he wanted to ascertain whether the driver had been drinking
(which the driver denied); the passenger asked for the officer’s name and badge
number and challenged Claroni’s right to obtain the passenger’s identification;
at some point, Claroni reached through the driver-side window, which led to
Richard Hopkins rolling the window up completely; the occupants of the vehicle
took the gear shift out of park and revved the engine; Claroni threatened to break
the driver’s window with his baton if it was not wound down. Eventually, Claroni
had Richard Hopkins exit the vehicle.
Richard Hopkins was escorted to Claroni’s cruiser by Deputy Chambers,
whom Claroni had earlier called for back-up. Claroni asked Duane McLellan, a
firefighter whom he knew (McLellan had come from his home across the street
to observe what was going on) to watch Richard Hopkins while Claroni and
Chambers approached the Hopkins vehicle. Me. Superior Ct. (Washington Cnty.)
Trial Proceedings Tr., Vol. II Excerpts (“Trial Tr.”), pp. 174-80, Page ID #402-03
(ECF No. 70-2).4 Claroni then got into the Hopkins vehicle on the driver’s side—
he says to remove the keys, but the Hopkins Brothers say to assault passenger
James Hopkins—and a physical altercation ensued. In the truck during the
altercation, Claroni saw a shotgun pointing toward the floor (it turned out to be
unloaded and belonged to Richard, who had been hunting that day). At some
point, Claroni sprayed mace on James Hopkins and James Hopkins exited the
vehicle on his own, by force, or by some combination of the two. During the

I use Page ID numbers when citing the transcript excerpts. Page ID numbers are a sequential
pagination feature of the Electronic Case Filing system that gives a unique page number to every
page of every document in a case based on the order in which the document is filed in the system.
4

3

altercation in the vehicle, Richard Hopkins was yelling at Claroni not to injure
his brother, who has had six previous skull fractures. Trial Tr., p. 21, Page ID
#358. McLellan, thinking Richard Hopkins was getting agitated to the point that
he might intervene in the Claroni/James Hopkins altercation, moved to grab
Richard Hopkins, and in the process tripped over his own untied shoelaces. As
a result, both he and Hopkins fell to the ground.

Other law enforcement

personnel arrived on the scene at some point.
Claroni arrested both brothers, Richard for disorderly conduct and James
for assault. Law enforcement seized the shotgun and vehicle. A blood alcohol
test on Richard at the jail showed no alcohol. Richard was released on bail and
regained possession of his gun and vehicle that same evening. Law enforcement
took James to the hospital for treatment before he was returned to the jail.
Richard bailed James the next morning.
On January 6, 2009, with Richard Hopkins present, a District Court judge
in Calais made a finding of “no complaint” on the disorderly conduct charge,
thus ending the case against Richard. See State of Maine v. Richard Hopkins,
No. CALDC-CR-2008-00492 (Calais, Maine). James was tried for assault and,
after a mistrial, entered a nolo contendere plea. See State of Maine v. James
Hopkins, No. MACSC-CR-2009-00006 (Machias, Maine).
PROCEDURAL HISTORY
The Hopkins Brothers filed their pro se complaint in this court suing the
Calais Police Department and a number of officers and individuals, asserting
claims under 42 U.S.C. § 1983 for violation of their constitutional rights.
Subsequently, they dismissed all defendants but Officer Claroni and Duane
4

McLellan. I eventually granted McLellan’s motion to dismiss because he was
never properly served with process. Order Granting Mot. to Dismiss (ECF No.
31). Thus, the case now is proceeding against only Officer Claroni, and the only
pertinent claims remaining in the complaint are seven counts against Claroni on
behalf of Richard Hopkins5 and seven counts on behalf of James Hopkins.6
Claroni has moved for summary judgment on all but James Hopkins’ excessive
force claim.

The Hopkins Brothers have responded and claimed summary

judgment in return.7
ANALYSIS
(1)

False Arrest and First Amendment Claims (Counts 1 & 4―Both Plaintiffs)

There are genuine issues of material fact on whether there was probable
cause for Officer Claroni to arrest Richard Hopkins for disorderly conduct, and
whether qualified immunity applies.

Officer Claroni says that he arrested

Richard Hopkins “for disorderly conduct based upon his refusal to comply with
Officer Claroni’s requests and his physical altercation with Mr. McLellan.” Def.’s
Mot. at 9.
With respect to “refusal to comply,” it appears that Richard Hopkins did
comply with all of Officer Claroni’s requests, albeit slowly and after vociferous
objection.8 With respect to the “physical altercation with Mr. McLellan,” Officer
5 Count 1, First Amendment; Count 2, Equal Protection; Count 3, Sixth Amendment; Count 4,
Fourth Amendment re: arrest; Count 5, Fourth and Fourteenth Amendment re: search; Count
6, Second Amendment; Count 7, Due Process and Equal Protection.
6 Count 1, First Amendment; Count 2, Equal Protection and Due Process; Count 3, Sixth
Amendment; Count 4, Fourth Amendment re: arrest; Count 5, Fourth Amendment re: search;
Count 6, Fourth Amendment re: excessive force; Count 7, Due Process and Equal Protection.
7 See note 1 supra.
8 “A person is guilty of disorderly conduct if . . . [i]n a public or private place, the person knowingly
accosts, insults, taunts or challenges any person with offensive, derisive or annoying words, or

5

Claroni does not claim to have witnessed the “altercation,”9 and McLellan
testified at James Hopkins’ criminal trial that he, McLellan, initiated the
“altercation,” not Richard Hopkins. Specifically, during a hearing on a motion
to suppress in the criminal trial, McLellan testified that he was with Richard
Hopkins near Claroni’s cruiser; that Richard Hopkins was becoming increasingly
agitated over what was going on between Claroni and his brother to the point
that McLellan “thought I better get to the upper hand before I don’t have that
action to be able to do so”; that McLellan “ended up trying to grab him,” but that
McLellan had not laced up his shoes, “and the second I went to grab him I had
stepped on my other lacing and we both fell to the ground”; and that McLellan
“wouldn’t say I knocked him down. He fell on me . . . . Once we hit the ground,
he made some gestures to me, ‘What are you doing, what are you doing? I don’t
want to do this.’ And he got up, little bit of wrestling around to the point—but
no punches . . . no anything like that was ever—was ever done.”
Suppress Hr’g Tr. (ECF No. 70-1), pp. 32-33, Page ID # 342-43.

Mot. to
McLellan

testified to the same effect at the trial. Trial Tr., pp.181-83, Page ID # 404. This
was also consistent with Richard Hopkins’ trial testimony. Id. at 203-06, Page
ID # 409-10.

by gestures or other physical conduct, that would in fact have a direct tendency to cause a violent
response by an ordinary person in the situation of the person so accosted, insulted, taunted or
challenged . . . .” 17-A M.R.S.A. § 501-A(1)(B). When the person(s) being accosted are police
officers, “the conduct must be egregiously offensive, so offensive as to have a direct tendency to
cause a violent response even from a police officer. The word ‘direct’ contained in the statute
refers to the necessity of finding a clear and present danger of an immediate breach of peace.”
State v. John W., 418 A.2d 1097, 1106 (Me. 1980).
9 Defendant’s Statement of Material Facts (ECF No. 67) (“Def.’s Facts”), at ¶ 55, and the
Deposition of Richard Hopkins (ECF No. 68), p. 78, Page ID # 240, which the defendant cites,
make no reference to what Officer Claroni observed or was told about the altercation.
6

It is a factual question, therefore, whether “there clearly was no probable
cause at the time the arrest was made.” Topp v. Wolkowski, 994 F.2d 45, 48
(1st Cir. 1993) (quoting Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985)) (emphasis
in original). In the First Circuit, this inquiry covers both the question of whether
there was probable cause and the question of whether Officer Claroni is entitled
to qualified immunity for an unlawful arrest. See id.
On Richard Hopkins’ First Amendment claim—that Officer Claroni
unconstitutionally arrested him for his utterances about not hurting his
brother—it is a factual question what motivated the arrest: the officer’s
unhappiness with Richard Hopkins’ utterances or actual disorderly conduct. If
Claroni had probable cause for the arrest, the First Amendment claim fails on
account of qualified immunity, because the United States Supreme Court has
held that a “First Amendment right to be free from a retaliatory arrest that is
supported by probable cause” is not “clearly established.” Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012).

But here there are disputed facts over the

existence of probable cause, and thus at this stage the First Amendment claim
remains. See, e.g., Patterson v. United States, 999 F. Supp. 2d 300, 310 (D.D.C.
2013) (stating that the D.C. Circuit has “expressly recognized that there is a First
Amendment right not to be arrested in retaliation for one’s speech where there
is otherwise no probable cause for the arrest.”); Tobey v. Jones, 706 F.3d 379,
392 (4th Cir. 2013) (“Reichle does not apply here because Mr. Tobey specifically
alleges that his arrest was not supported by probable cause . . . .”) (emphasis in
original). In the absence of qualified immunity, the retaliatory arrest inquiry
becomes whether a plaintiff can “show that the officer’s intent or desire to curb
7

the expression was the determining or motivating factor in making the arrest, in
the sense that the officer would not have made the arrest ‘but for’ that
determining factor.” Tatro v. Kervin, 41 F.3d 9, 18 (1st Cir. 1994) (emphasis in
original).
As for James Hopkins, it is undisputed that there was a physical
altercation between him and Officer Claroni. But the criminal trial transcript
reveals that there are genuine issues of material fact over who initiated the
altercation and who was the aggressor, Claroni or Hopkins, and therefore
whether Officer Claroni had probable cause to arrest James Hopkins for
assaulting Claroni, or whether a reasonable police officer with the information
available to Claroni would have known that he was violating a clearly established
right.

However, the only apparent First Amendment violation that James

Hopkins refers to is Officer Claroni telling him to “shut up” when James claimed
that two officers were giving him conflicting directions about getting back into
the truck. Plaintiffs’ Resp. in Opp’n to Def.’s Mot. for Summ. J. at 11, 26 (“Pls.’
Opp’n”) (ECF No. 70). Officer Claroni’s statement may have been rude, but it
was not a First Amendment violation.
For these reasons, the defendant’s motion is GRANTED as to the First
Amendment claim of James Hopkins, but DENIED as to the First Amendment
claim of Richard Hopkins and DENIED as to the unconstitutional arrest (lack of
probable cause) claims of both.
(2)

Equal Protection (Counts 2 & 7―Both Plaintiffs)

The Hopkins Brothers claim that Officer Claroni violated their Fourteenth
Amendment right to equal protection of the laws. But they do not claim to be
8

members of a protected class. Instead, their claim seems to be two-fold―first,
that it was arbitrary to arrest them without arresting Duane McLellan, Pls.’
Opp’n at 10, 15; and second, that the truck’s Florida license plate and Richard
Hopkins’ Florida driver’s license generated the treatment they received. Id. at
15. I reject the proposition that a law enforcement officer’s discretionary choice
of whom to arrest, when it is not based on a suspect classification like race, is a
violation of equal protection.

Moreover, the Hopkins Brothers have only

speculation, not evidence, that Richard Hopkins’ out-of-state plates or license
arbitrarily affected the treatment they received.

See Martínez-Rodríguez v.

Guevara, 597 F.3d 414, 419 (1st Cir. 2010) (“[S]ummary judgment cannot be
defeated by relying on improbable inferences, conclusory allegations, or rank
speculation.”) (citation omitted).
I see no separate argument concerning these counts’ references to the
Hopkins Brothers’ due process, safety, happiness, etc., and I GRANT the
defendant’s motion for summary judgment on Counts 2 and 7 in their entirety
as to both plaintiffs.
(3)

Sixth Amendment (Count 3―Both Plaintiffs)

The Hopkins Brothers have conceded that they have no viable Sixth
Amendment claims. Pls.’ Opp’n at 14. Therefore, the defendant’s motion for
summary judgment on that issue (Count 3 as to both plaintiffs) is GRANTED.
(4)

Basis for Traffic Stop and Search (Counts 4 and 5―Both Plaintiffs)

The Hopkins Brothers challenge the initial traffic stop as an “unreasonable
seizure.” Pls.’ Mot. at 5. Both men have standing to challenge the stop. Brendlin
v. California, 551 U.S. 249, 258-59 (2007). However, Officer Claroni did not
9

violate the Fourth Amendment when he stopped the Hopkins Brothers based on
information from the deputy sheriff that their vehicle ran a stop sign. Def.’s Mot.
at 13; See Whren v. United States, 517 U.S. 806, 819 (1996) (“[T]he officers had
probable cause to believe that petitioners had violated the traffic code. That
rendered the stop reasonable under the Fourth Amendment . . . .”). The fact that
Officer Claroni did not personally witness the plaintiffs’ conduct is immaterial
because police officers may form reasonable suspicion based on information
provided to them by other officers. United States v. Brown, 621 F.3d 48, 57 (1st
Cir. 2010); State v. Carr, 1997 ME 221, ¶ 7, 704 A.2d 353 (“Reasonable and
articulable suspicion to conduct an investigatory stop can rest on the collective
knowledge of the police.”).10 Therefore, the defendant’s motion for summary
judgment on that issue (Count 4 as to both plaintiffs) is GRANTED.
The Hopkins Brothers also appear to claim that two actions by Officer
Claroni constituted unreasonable searches of the vehicle: (1) his reaching
through the driver-side window; and (2) his entering the truck through the open
driver-side door. See Pls.’ Opp’n at 30-31. As a passenger without an ownership

10 The fact that Officer Claroni was an officer with the City of Calais police department and
Thomas Chambers was a Washington County Deputy Sheriff does not change the analysis. See
United States v. Hensley, 469 U.S. 221, 231 (1985) (concluding that a police officer can develop
reasonable suspicion based on information from officers in a different police department). Nor
does the fact that Deputy Chambers was off-duty at the time of his communication to Officer
Claroni change the analysis. See, e.g., Drakeford v. Cnty. of Orange, 213 Fed. App’x 542, 544
(9th Cir. 2006) (police can rely on tip from an off-duty police officer); Pahle v. Colebrookdale Twp.,
227 F. Supp. 2d 361, 370 (E.D. Pa. 2002) (same). Some states by state law allow arrest for a
misdemeanor only if the misdemeanor is committed in the presence of the officer. See 3 Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.1(c), at 34 (5th ed.
2012); 17-A M.R.S.A. § 15(1)(B). However, the relevant question regarding the traffic stop is
whether Officer Claroni had grounds for stopping the Hopkins vehicle, not whether he had
grounds for arrest at the time of the stop. Maine law explicitly allows an officer to stop a motor
vehicle based on reasonable suspicion of a traffic infraction. See 29-A M.R.S.A. § 105(1)(B).

10

interest in the vehicle, James Hopkins does not have standing to challenge the
vehicle search. See Rakas v. Illinois, 439 U.S. 128, 148 (1978); United States v.
Tiru-Plaza, 766 F.3d 111, 116 fn. 9 (1st Cir. 2014). Therefore, Officer Claroni’s
motion for summary judgment on that issue (Count 5) is GRANTED as to James
Hopkins.
Both actions by Officer Claroni may be “searches” within the meaning of
the Fourth Amendment. The United States Supreme Court has said that “a car’s
interior as a whole is . . . subject to Fourth Amendment protection from
unreasonable intrusions by the police,” and that such an intrusion is a “search.”
New York v. Class, 475 U.S. 106, 114-15 (1986) (agreeing with the New York
Court of Appeals), cited approvingly in United States v. Jones, 132 S. Ct. 945,
952 (2012). On the other hand, the usual focus of Fourth Amendment concern
is intrusions to obtain information. (In Jones, the Court held that the attachment
of a GPS device to a vehicle constituted a search because the “Government
physically occupied private property for the purpose of obtaining information.”)
Jones, 132 S. Ct. at 949 (emphasis added). Information was not the purpose of
Claroni’s intrusions.
But without deciding whether either of the challenged actions constituted
a search, I find that Officer Claroni is entitled to qualified immunity on Richard
Hopkins’ claim because Claroni did not violate any “clearly established” right.11
A right is “clearly established” when “every reasonable official would have

“[C]ourts may grant qualified immunity on the ground that a purported right was not ‘clearly
established’ by prior case law, without resolving the often more difficult question whether the
purported right exists at all.” Reichle, 132 S. Ct. at 2093 (citing Pearson v. Callahan, 555 U.S.
223, 227 (2009)).
11

11

understood that what he is doing violates that right” and “existing precedent
[has] placed the statutory or constitutional question beyond debate.” Ashcroft
v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation and citations
omitted).
An officer may take reasonable actions during a traffic stop to ensure
officer safety and further the investigation. See Pennsylvania v. Mimms, 434
U.S. 106, 111 (1977) (requiring drivers to exit their vehicles during stops is a “de
minimis” intrusion justified by “legitimate concerns for the officer’s safety.”); New
York v. Class, 475 U.S. at 117-19 (officer acted reasonably by reaching into car
to clear papers from dashboard that could have been covering the Vehicle
Identification Number); United States v. Ryles, 988 F.2d 13, 15 (5th Cir. 1993)
(officer did not act unreasonably by either “placing his head inside the interior
of the van through an open window or in opening the driver’s door and placing
his torso inside.”); United States v. Stanfield, 109 F.3d 976, 983 (4th Cir. 1997)
(officer’s opening of passenger door to see if passenger was armed is intrusion
no more significant than asking the passenger to exit the vehicle). The First
Circuit has held that officers did not run afoul of the Fourth Amendment when
they opened a front passenger door to see the passenger’s hands because the
intrusion was “minimal” and was based on “reasonable suspicion [that] criminal
activity was afoot.” United States v. Ramos, 629 F.3d 60, 64-68 (1st Cir. 2010).
In addition, an officer’s reasonable actions during a traffic stop may include
securing the vehicle. See United States v. Bonner, 363 F.3d 213, 216 (3d Cir.
2004) (“It is also well settled that a police officer executing such a stop may
exercise reasonable superintendence over the car and its passengers.”); United
12

States v. Molina, No. 06-653, 2007 WL 2850592, at *2 (E.D. Pa. Oct. 2, 2007)
(officer was justified in reaching into car to turn off ignition after driver failed to
comply with officer’s requests to shut engine off).
Based on this case law, a reasonable officer in Officer Claroni’s position
could conclude that it did not violate any clearly established right to attempt to
open the driver-side door by inserting the officer’s arm through the open window
in order to effect the driver’s exit from the vehicle, or to enter the vehicle to turn
off the engine and secure the keys. (It is undisputed that the truck was running
and that the occupants had previously taken the gear shift out of park and
revved the engine.

See Def.’s Facts ¶ 32; Pls.’ Resp. to Def.’s Statement of

Material Facts ¶ 32 (“Pls.’ Facts”) (ECF No. 78).) The Hopkins Brothers dispute
Officer Claroni’s actual motives in reaching through the window and entering the
vehicle. But Whren makes clear that an officer’s actual motives do not determine
the reasonableness of the conduct for Fourth Amendment purposes. Instead,
the inquiry is whether the behavior is “objectively justifiable.” Whren, 517 U.S.
at 812. “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows certain
actions to be taken in certain circumstances, whatever the subjective intent.”
Id. at 814 (emphasis in original); see United States v. McGregor, 650 F.3d 813,
821-22 (1st Cir. 2011) (Whren’s holding casts doubt on previous First Circuit
law that allowed consideration of an officer’s motivations in the context of a
weapons search).

For these reasons, the defendant’s motion for summary

judgment as to the unreasonable search claim (Count 5 for Richard Hopkins) is
GRANTED on the basis of qualified immunity.
13

(5)

Excessive Force (Count 6―James Hopkins)

Officer Claroni does not seek summary judgment as to James Hopkins’
claim of excessive force. Claroni maintains that he will prevail on this issue at
trial, but he recognizes that there are factual disputes. Therefore, I will not
address that issue further.
There is no count in the complaint claiming that Officer Claroni used
excessive force with respect to Richard Hopkins. Cases saying that force, when
used, does not have to be significant to be unconstitutional, Pls.’ Opp’n at 32,
are therefore not pertinent. There simply is no claim of force with respect to
Richard Hopkins.
(6)

Second Amendment Claim (Count 6―Richard Hopkins)

Richard Hopkins claims that his Second Amendment rights were violated
when “Officer Claroni took [his] gun.” Pls.’ Mot. at 3. There is no dispute that
the gun was returned to Richard Hopkins when he was released from custody
later on the evening of his arrest. See Def.’s Facts ¶ 69; Pls.’ Facts ¶ 69.
Given the arrest of the gun’s owner here, public safety required the
temporary seizure of the weapon. See Cady v. Dombrowski, 413 U.S. 433, 441
(1973) (holding warrantless seizure of vehicle, and gun inside vehicle, was
justified by police “community caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a
criminal statute.”).
Moreover, the Second Amendment is not implicated by the seizure. The
First Circuit recently declined to extend the right to keep and bear arms beyond
“defense of hearth and home.” See Powell v. Tompkins, 2015 WL 1681274, 783
14

F.3d 332, at *12 (1st Cir. Apr. 15, 2015). Courts have also generally held that
the Second Amendment is not implicated by the seizure of individual firearms.
See, e.g., Walters v. Wolf, 660 F.3d 307, 318 (8th Cir. 2011) (“On this record,
however, we hold that Walters has not established that the City and Chief Wolf
have violated his Second Amendment right to keep and bear arms.

The

defendants’ policy and action affected one of Walters’s firearms, which was
lawfully seized.

The defendants did not prohibit Walters from retaining or

acquiring other firearms.”) (emphasis in original); Tirado v. Cruz, No. CIV. 102248 CVR, 2012 WL 525450, at *6 (D.P.R. Feb. 16, 2012) (citing Walters v. Wolf
approvingly); Bane v. City of Philadelphia, No. CIV.A. 09-2798, 2009 WL
6614992, at *10 (E.D. Pa. June 18, 2009) (“No government official is barring
Plaintiff from obtaining a firearm and none is preventing Plaintiff from availing
himself of the procedure for the return of his firearm. Moreover, no law has been
cited that infringes upon Plaintiff’s right to obtain a firearm.

The Second

Amendment does not bar police from seizing the items taken in this case.”).
Based on the undisputed facts in the record, I conclude that Richard
Hopkins does not have a viable Second Amendment claim based on the seizure
of his gun while he was in police custody. This analysis would not change even
if his arrest was unlawful, because of the First Circuit decision in Powell v.
Tompkins and because there is no Second Amendment issue presented by the
seizure of a particular firearm. The defendant’s motion for summary judgment
as to the Second Amendment claim (Count 6 for Richard Hopkins) is GRANTED.

15

CONCLUSION
What claims remain for trial in this lawsuit are the following: Richard
Hopkins’ claim of unconstitutional arrest based upon an asserted lack of
probable cause and retaliation in violation of the First Amendment (his Counts
1 and 4); James Hopkins’ claim of unconstitutional arrest (his Count 4); and
James Hopkins’ claim of excessive force (his Count 6).
SO ORDERED.
DATED THIS 18TH DAY OF MAY, 2015
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

16

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE (BANGOR)
CIVIL DOCKET NO. 1:13-CV-229-DBH
Richard Hopkins
and

Represented By Richard Hopkins, Pro Se
James Hopkins, Pro Se
105 Damon Ridge Road
Charlotte, ME 04666

James Hopkins
v.
David Claroni, Officer

Represented By John J. Wall, III
Monaghan Leahy, LLP
P.O. Box 7046
Portland, ME 04112-7046
[phone]
email: [e-mail]

17