LONG v. ABBOTT et al

Filing 104

ORDER denying 99 Plaintiff's Motion for New Trial. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ARTHUR J. LONG,
Plaintiff,
v.
OFFICER BRENT D. ABBOTT,
Defendant.

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2:15-cv-00291-JAW

ORDER ON PLAINTIFF’S MOTION FOR NEW TRIAL
The Court denies the Plaintiff’s motion for new trial because it concludes that
its instruction on the meaning of possession under the drinking in public statute was
correct and, if not, the Plaintiff’s failure to propose any jury instructions on the
definition of possession, and his failure to object to the given instruction either at the
charge conference or at trial, doom his demand for a new trial.
I.

BACKGROUND
A.

Procedural History

On July 22, 2015, Arthur J. Long filed a lawsuit pursuant to 42 U.S.C. § 1983
in this Court against Brent Abbott, an officer with the Portland Police Department,
and others, alleging that Officer Abbott had violated his constitutional rights by
arresting him without probable cause and by using excessive force against him in
effecting the arrest.1 Compl. (ECF No. 1). The case was tried before a jury on May

The jury found for Officer Abbott not only on whether Officer Abbott had probable cause to
arrest Mr. Long, but also on Mr. Long’s allegation that Officer Abbott used excessive force during the
arrest. Verdict Form at 1 (ECF No. 97). Mr. Long does not challenge the excessive force verdict.
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30–31, 2017, and on May 31, 2017, the jury issued a verdict in favor of Officer Abbott.
Jury Verdict (ECF No. 97). On May 31, 2017, the Court duly reduced the verdict to
judgment. J. (ECF No. 98).
On June 5, 2017, Mr. Long filed a motion for partial new trial. Pl.’s Mot. for
Partial New Trial Pursuant to F.R. Civ. P. 59(a)(1)(A) (ECF No. 99) (Pl.’s Mot.). On
June 15, 2017, Officer Abbott objected. Def.’s Obj. to Pl.’s Mot. for Partial New Trial
Pursuant to F.R. Civ. P. 59(a)(1)(A) (ECF No. 100) (Def.’s Opp’n). On June 19, 2017,
Mr. Long replied. Pl.’s Reply Mem. Pursuant to F.R. Civ. P. 59(a)(1)(A) (Pl.’s Reply).
B.

The Trial

In response to a complaint from a local businessperson, Officer Brent Abbott
was dispatched by the Portland Police Department to 24 Preble Street in Portland,
Maine, at around 11:39 p.m. on August 9, 2014. The police dispatcher told Officer
Abbott that there were four or five males drinking beer just outside 24 Preble Street.
When Officer Abbott arrived shortly after dispatch, he encountered two males on the
steps of 24 Preble Street, and he noticed beers all around the stoop. Officer Abbott
observed that the cans of beer were within easy reach, perhaps two inches, away from
Mr. Long. At least one of the cans of beer near Mr. Long was sweating, which
suggested to Officer Abbott that the beer inside the can was still cold since it was a
warm night. Officer Abbott did not see either man actually drinking beer.
Officer Abbott concluded that there was probable cause to believe that Mr.
Long had been drinking in public, and the officer demanded Mr. Long identify himself
by giving the officer his name and date of birth. Mr. Long refused to identify himself.

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This refusal led to Mr. Long’s arrest. The jury concluded that Mr. Long had not
proven by a preponderance of the evidence that Officer Long lacked probable cause
to arrest him for failing or refusing to identify himself in violation of Mr. Long’s
federal constitutional rights. Verdict Form at 1 (ECF No. 97).
C.

The Legal Issue

These facts presented a layered legal issue. In order for Officer Abbott to
properly arrest Mr. Long for failing to provide identification, Officer Abbott had to
have probable cause to believe that Mr. Long had committed or was committing an
underlying crime. The underlying crime that Officer Abbott believed Mr. Abbott had
committed was drinking in public, a violation of 17 M.R.S. section 2003-A(2):2
A person is guilty of public drinking if the person drinks liquor in any
public place within 200 feet of a notice posted conspicuously in the public
place by the owner or authorized person that forbids drinking in the
public place or after being forbidden to do so personally by a law
enforcement officer, unless the person has been given permission to do
so by the owner or authorized person.
Setting aside other issues, the drinking in public statute requires that the person be
actually drinking liquor. Id. (“if the person drinks liquor”). However, the statute goes
on to state:
The possession of an open container of liquor in a public place is prima
facie evidence of a violation of this section.
17 M.R.S. § 2003-A(3).

Officer Abbott initially contended that there was also probable cause to believe that Mr. Long
was guilty of the crime of loitering, but Attorney Wall acknowledged during closing argument that
there was no basis to conclude that Mr. Long had been guilty of the crime of loitering.
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On this issue, echoing the statute and interpreting Maine caselaw, the Court
instructed the jury:
Maine law also provides that the possession of an open container of
liquor in a public place is prima facie evidence of a violation of law. If
you find that Mr. Long possessed an open container of liquor, then the
law permits the inference from this fact that Mr. Long was in violation
of this law. The law also provides that possession of an object means
that the object was subject to a person’s dominion and control. To find
that Mr. Long possessed an open container of liquor and that the rule of
prima facie evidence applies, Mr. Long had to have the object within his
dominion and control.
Although he did not object to this instruction at trial, Mr. Long is now objecting to
the instruction on the ground that the Court erred when it instructed the jury on
constructive possession. In his motion for new trial, Mr. Long contends that the Court
should have instructed the jury that this statute requires actual, not constructive
possession. Pl.’s Mot. at 1–3.
II.

THE PARTIES’ POSITIONS
A.

Arthur Long’s Motion

In his motion for new trial, Mr. Long asserts that the Court should have
instructed the jury that “possession” means only actual, not constructive possession.
Id. at 1. To support his argument, Mr. Long cites three cases, two from the state of
Iowa and the other from the state of Washington, in which he argues these state
courts required actual possession of liquor to prove criminal responsibility in similar
public drinking statutes. Id. at 2–3 (citing In the Interest of W.B., 641 N.W.2d 543,
546–47 (Iowa Ct. App. 2001); State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000); State v.
Duncan, 43 P.3d 513, 517–21 (Wash. 2002)). Mr. Long claims that Officer Abbott

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failed to request this instruction about constructive possession until May 25, 2017,
which he says was too late. Id. at 3–4. Finally, Mr. Long disputes whether the Court
should have applied the concept of constructive possession to alcohol, the possession
of which is legal but restricted, as opposed to illegal drugs, the possession of which is
simply illegal. Id. at 4.
B.

Officer Abbott’s Response

In response, Officer Abbott observes that Mr. Long did not object to the
instruction given at trial. Def.’s Opp’n at 1. Therefore, he contends that Mr. Long
must demonstrate “plain error” to prevail on his motion for new trial. Id. at 4 (citing
Smith v. Kmart Corp., 177 F.3d 19, 26 (1st Cir. 1999); Muniz v. Rovira, 373 F.3d 1, 6
(1st Cir. 2004)). Officer Abbott also points out that it was Mr. Long who requested
that the Court instruct the jury on the concept of possession, and he contends, citing
Maine caselaw, that the Court’s instruction was based on “well-established Maine
law applying the concept of possession in analogous statutes.” Id. at 5–6. Officer
Abbott urges the Court to disregard the cases from Iowa as being unhelpful on an
issue of Maine law. Id. at 6. Finally, Officer Abbott disputes Mr. Long’s contention
that the Court infused new concepts of possession late during the trial. Id. at 8.
C.

Arthur Long’s Reply

In his reply, Mr. Long emphasizes that the pending motion is a motion under
Rule 59, not Rule 50, and contends that Rule 59 grants the Court greater flexibility
than Rule 50. Pl.’s Reply at 1–2. Mr. Long reiterates his position that possession
must be actual to violate 17 M.R.S. section 2003-A(2). Id. at 2.

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III.

DISCUSSION
A.

Legal Standard

Under Rule 59, a district court “has the power and duty to order a new trial
whenever, in its judgment, the action is required to prevent injustice.” Bartlett v.
Mut. Pharm. Co., Inc., 760 F. Supp. 2d 220, 228 (D.N.H. 2011) (quoting RodriguezGarcia v. Miranda-Marin, 610 F.3d 756, 765 (1st Cir. 2010)).

In making that

determination, the trial court “is free to independently weigh the evidence,” including
“the credibility of witnesses.” Jennings v. Jones, 587 F.3d 430, 436 (1st Cir. 2009).
At the same time, a court may not “displace a jury’s verdict merely because [it]
disagrees” with the outcome. Id. A new trial may be granted “only if the verdict is
against the law, against the weight of the credible evidence, or tantamount to a
miscarriage of justice.” Crow v. Marchand, 506 F.3d 13, 19 (1st Cir. 2007).
As the moving party, it is Mr. Long’s burden to show that there were “errors
and defects” at trial that affected his “substantial rights.” Bartlett, 760 F. Supp. 2d
at 228; 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE § 2882 (2012 ed.) (“The district court in passing on a motion
for a new trial or in considering whether to set aside a verdict or otherwise to disturb
a judgment or order must be guided by what substantial justice requires and must
disregard errors that were harmless”); FED. R. CIV. P. 61.
Here, Mr. Long’s sole basis for demanding a new trial is that the court erred in
giving a jury instruction on the concept of “possession” under Maine law. Accordingly,
the provisions of Federal Rule of Civil Procedure 51 apply to Mr. Long’s Rule 59

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motion. Rule 51 sets forth a procedure for parties to request jury instructions and to
object to jury instructions as given. FED. R. CIV. P. 51. Rule 51 adopts a “plain error”
standard for instructions where the moving party failed to make a timely objection to
the instruction as given. Id. (d)(2); Colon-Millin v. Sears Roebuck de P.R., Inc., 455
F.3d 30, 40 n.7 (1st Cir. 2006) (“[A] court may review unpreserved objections to jury
instructions for plain error”). Moreover, Rule 51 requires that if the moving party
failed to object to the instructions, plain error will be found only if the error “affects
substantial rights.” Id. “The standard is high, and ‘it is rare indeed for a panel to
find plain error in a civil case.’” Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir.
2006) (quoting Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002) (en banc)).
B.

The Draft Instruction

On March 17, 2017, the Court set this matter for trial for the May 2017 term.
Trial List (ECF No. 43). On April 7, 2017, the United States Magistrate Judge held
a final pretrial conference and issued an order requiring each party to submit
proposed jury instructions by April 26, 2017. Report of Final Pretrial Conf. and Order
at 3 (ECF No. 56). On April 26, 2017, Officer Abbott submitted a set of proposed jury
instructions, including an instruction that tracked the language of the Maine
criminal law statute that prohibits drinking in public under certain circumstances.
Def.’s Proposed Jury Instructions at 6 (ECF No. 73). Officer Abbott also asked the
Court to instruct the jury:
Under Maine law, the possession of an open container of liquor in a
public place is sufficient evidence to sustain a violation of this section
unless it is rebutted with competent evidence at trial.

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Id. (citing 17 M.R.S. § 2003-A). Mr. Long failed to propose any jury instructions before
trial.
On May 24, 2017, the Court sent counsel a draft set of preliminary and final
jury instructions and asked whether either counsel objected to them. Pl.’s Mot.,
Attach. 1, Email Stream at 10–11 (Email Stream). The Court did not incorporate in
its draft instructions, Officer Abbott’s proposal concerning the prima facie impact of
possession of an open container of liquor in a public place. On May 25, 2017, noticing
this omission, Officer Abbott’s counsel reiterated his request that the Court instruct
the jury in accordance with 17 M.R.S. § 2003-A(3).3 Id. at 2.
On May 26, 2017, Mr. Long’s counsel responded:
I am responding to attorney Wall’s latest request for a change in the jury
instructions. He cites to 17 M.R.S. [§] 2003-A(3) and the language about
possession of an open container in a public place comprising prima facie
evidence of a violation of this section. Yet, he provides no definition for
the term “possession.” This is problematic . . . . Also, there is no
definition of “possession” in this particular chapter but in crimes
involving possession of drugs, the following definition is given” “a person
is guilty of unlawful possession of a scheduled drug if the person
intentionally or knowingly possesses what the person knows or believes
to be a scheduled drug, which is in fact a scheduled drug.” 17[-]A M.R.S.
[§] 1107-A(1). In a case such as the instant one where the open can of
beer was not on Mr. Long’s person, not held by him, not being
transported by him, where Officer Abbott did not observe him holding it
or drinking it or transporting it, where Mr. Long denied it was his,
denied that he had been drinking from it, I do not believe this language
is appropriate. It simply begs the same question—did Officer Abbott
have probable cause to believe each element of the crime of drinking in
public. Certainly, if Officer Abbott had personally observed Mr. Long
“possessing” the beer, then we would have a prima facie case of Drinking
in Public. That he did not observe possession means that section 3 of
3

17 M.R.S. § 2003-A(3) provides:
The possession of an open container of liquor in a public place is prima facie evidence of a
violation of this section.

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this statute is not applicable. Mr. Long objects to this language being
added to the jury instruction as it will likely confuse the jury and add
nothing helpful.
Id. at 1–2 (emphasis in Attorney Waxman’s email).
As quoted above, in response to counsel’s requests, the Court incorporated both
suggestions, including a definition of possession as Attorney Waxman wanted and
the prima facie evidence standard for possession as Attorney Wall requested. Neither
counsel objected to this instruction either at the charge conference before the
instruction was given or at sidebar after the instruction was given.
In these circumstances, given not only his failure to object to the jury
instruction as proposed or as given, but also his request that the jury be instructed
on the meaning of possession, Mr. Long is subject to the plain error standard of
review.
C.

The “Possession” Instruction

Maine’s Drinking in Public statute, 17 M.R.S. § 2003-A, does not contain a
definition of “possession” of liquor. The Maine Supreme Judicial Court addressed
this statute in State v. Laplante, 534 A.2d 959 (Me. 1987). Accord State v. DiPietro,
2009 ME 12, ¶¶ 13–14, 964 A.2d 636. In Laplante, the Maine Law Court upheld an
investigatory stop of the occupants of a motor vehicle where the officer observed open
cans of beer in the vehicle. Id. at 962. The Laplante Court rejected the defendant’s
contention that the presence of open cans of beer in the vehicle did not establish that
all of the occupants were in possession of the beer:
Although [Trooper] Arnold did not directly observe Nault drinking,
Nault’s presence in an automobile containing a twelve pack of beer and
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open cans was enough to allow Arnold to warn Nault and his
companions pursuant to 17 M.R.S. § 2003-A.
Id. at 963. The Laplante Court established that to prove a violation of section 2003A, the State does not need to demonstrate actual possession of the liquor as there is
no evidence that the trooper in the Laplante case saw any of the occupants in actual
possession of the liquor.
Given that the standard in section 2003-A is not actual possession, the Court
looked to Maine law in analogous cases to provide a definition of possession that
would assist the jury in analyzing the evidence in Mr. Long’s case. In State v. Wilson,
2015 ME 148, ¶ 15, 127 A.3d 1234, the Maine Supreme Judicial Court wrote:
We have defined “possession” as the term pertains to physical objects.
For example, possession of drugs occurs when the drugs are “subject to
[the defendant’s] dominion and control. State v. Deering, 1998 ME 23, ¶
12, 706 A.2d 582 (quoting State v. Ellis, 502 A.2d 1037, 1040 (Me. 1985)
(alteration in original); see also State v. Erving, 558 A.2d 703, 704 (Me.
1989) (“Possession of a physical object may be proved by showing that
the accused . . . either had immediate physical control . . . of the object
or knew where it was and had the intention and ability to gain physical
control . . . of it.” (quotation marks omitted)).
Id. ¶ 15. The Court used the “dominion and control” language from Wilson in drafting
its jury instructions in Mr. Long’s case.4
Mr. Long argues that the “dominion and control” language should not have
applied to drinking liquor because liquor—unlike marijuana, cocaine, or heroin—is

The Court elected not to charge the more specific language in Wilson—“had immediate control
. . . or knew where it was and had the intention and ability to gain physical access”—because this
language, in the Court’s view, would have been highly unfavorable to Mr. Long since the evidence
established that Mr. Long knew the location of the beer can and had the ability to gain access to it,
leaving the only jury question whether he intended to gain physical access to the can of beer. To add
this language would have come too close to making a judicial comment on the actual evidence in this
case.
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legal for an adult to possess. Pl.’s Mot. at 4. The Court disagrees. In Wilson, the
Maine Supreme Judicial Court cited Erving for the legal definition of possession.
Erving involved unlawful possession of deer or parts of deer during closed season, a
violation of 12 M.R.S. § 7406.

558 A.2d at 703.

Like liquor, there is nothing

inherently illegal about possession of deer meat, but possession of deer meat during
a closed season or possession of liquor in public may become illegal depending upon
the circumstances surrounding the possession.

In general, the definition of

possession for an illegal object is the same in Maine as the definition of possession of
a legal object the possession of which is made illegal by the circumstances of the
possession. Ironically, though Mr. Long now complains about the use of illegal drug
possession definitions, it was Mr. Long’s counsel who first referred to the definition
of possession in the context of illegal drug possession. Email Stream at 1 (citing 17A M.R.S. § 1107-A(1), unlawful possession of a controlled substance).
Nor is the Court convinced by Mr. Long’s citation of state of Iowa and state of
Washington caselaw. The Court reads In the Interest of W.B., 641 N.W.2d 543 (Iowa
Ct. App. 2001), as generally congruent with Maine’s definition of possession as
including actual possession or control. The Iowa Court of Appeals defined possession
for purposes of a minor in possession of alcohol as “either actual possession or
constructive possession based on facts which permit the inference of an intent to
possess or control alcoholic beverages.” Id. at 546. It is true that the Iowa Court of

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Appeals distinguished between possession of legal and illegal substances, but on this
point, Maine law, not Iowa law, controls Mr. Long’s case.5
The state of Washington case involved a stop and frisk for possession of an
open container containing liquor in public, where the liquor was in a brown bag at a
public bus stop about six inches away from the defendant. Duncan, 43 P.3d at 514.
But the Washington Legislature had recently decriminalized the opening or
consumption of liquor in a public place, reducing it from a misdemeanor to a civil
infraction. Id. at 516. This change in classification caused the Supreme Court of
Washington to conclude that the stop and frisk principles of Terry v. Ohio, 392 U.S.
1 (1968), did not extend to civil violations. Id. at 519.
At the same time, the Supreme Court of Washington strictly interpreted the
meaning of possession under this statute. Agreeing that a person could actually or
constructively possess liquor and commit a civil violation, the Duncan Court noted
that the officers did not “witness Duncan drinking the alcohol, or holding the bottle,
or reacting to their approach” and therefore, the civil violation “did not occur in their
presence.” Id. at 521. There is no indication that Maine has adopted this narrow an
interpretation of constructive possession.
The Court concludes that its jury instruction on possession was not error at all,
much less plain error, and does not provide a basis for granting Mr. Long a new trial.

Mr. Long also cites State v. Atkinson, 620 N.W.2d 1 (Iowa 2000). But the Court does not view
Atkinson as helpful. In Atkinson, the Supreme Court of Iowa observed that in Iowa, the mere presence
of illegal drugs in a motor vehicle is not sufficient to establish that a passenger exercised dominion
and control over the drugs. Id. at 4. By contrast, in Laplante, the Maine Law Court concluded that a
passenger’s presence in a motor vehicle where there is an open can of beer is sufficient to generate
probable cause to conclude that the passengers were in possession of the liquor within the meaning of
17 M.R.S. § 2003-A.
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Mr. Long was the party who requested an instruction on the definition of possession,
and cannot now be heard to complain that the Court accommodated his request. Mr.
Long failed to provide the Court with an instruction on the proper definition of
possession, failed to object to the Court’s suggestion as to the proper definition of
possession at the charge conference, and failed to object to the Court’s instruction on
possession during trial.
Moreover, the Court agrees with Mr. Long that the jury was entitled to
guidance on the legal meaning of possession especially in the context of this case,
where Mr. Long denied possession of the nearby can of beer, but Officer Abbott
concluded that Mr. Long likely possessed it.
Finally, the definition of possession contained in the final jury instructions is
wholly consistent with this Court’s understanding of Maine criminal law’s definition
of actual and constructive possession of objects. Rather than giving a fuller definition,
which would have disadvantaged Mr. Long, the Court allowed counsel during their
closing arguments to attempt to convince the jury that the facts favored their
respective views of his dominion and control of the can of beer based on a more general
instruction. In short, the Court concludes that it made no error in instructing the
jury on the definition of possession of liquor under Maine law.
IV.

CONCLUSION
The Court DENIES Arthur J. Long’s Motion for Partial New Trial Pursuant to

F. R. Civ. P. 59(a)(1)(A) (ECF No. 99).

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SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 27th day of June, 2017

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