LONG v. ABBOTT et al

Filing 42

ORDER granting in part and denying in part 30 Defendants' Motion for Summary Judgment. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ARTHUR J. LONG,

)
)
Plaintiff,
)
)
v.
)
)
OFFICER BRENT D. ABBOTT, et al., )
)
Defendants.
)

2:15-cv-00291-JAW

SUMMARY JUDGMENT ORDER
The Plaintiff brings a 42 U.S.C. § 1983 claim against an officer of the Portland
Police Department (PPD) alleging various constitutional violations associated with
his arrest on August 9, 2014. The Plaintiff also asserts tort claims of assault and
unlawful arrest against the officer under Maine state law. Additionally, the Plaintiff
brings suit against the chief of the PPD and the city of Portland under the theories of
supervisory and municipal liability, respectively.
Acting on the Defendants’ motion for summary judgment, the Court concludes
that there are no genuine issues of material fact on the claims against the chief of the
PPD and the city of Portland and that they are entitled to judgment as a matter of
law.

The Court determines that the Maine Tort Claims Act (MTCA) bars the

Plaintiff’s state law claims against the officer because the Plaintiff failed to give
timely notice of his claims under the statute. However, the Court concludes that
genuine disputes of material fact preclude summary judgment on the Plaintiff’s

constitutional claims against the officer and that qualified immunity does not bar the
Plaintiff’s suit on those claims.
I.

PROCEDURAL POSTURE
A.

Pleadings

On July 22, 2015, Arthur J. Long brought suit against (1) the city of Portland,
Maine; (2) James Craig, the chief of the PPD; and (3) Brent Abbott, an officer with
the PPD.1 Compl. and Demand for Jury Trial (ECF No. 1) (Compl.). The following
day, Mr. Long filed an amended complaint that corrected minor typographical errors.
First Am. Compl. and Demand for Jury Trial (ECF No. 3). On August 21, 2015, Mr.
Long amended his complaint a second time to substitute Michael Sauschuck for
James Craig as the chief of the PPD. Second Am. Compl. and Demand for Jury Trial
(ECF No. 4).

The city of Portland, Chief Sauschuck, and Officer Abbott (the

Defendants) filed an answer on October 9, 2015. Answer, Aff’tive Defenses and Jury
Trial Demand (ECF No. 8).
On December 8, 2015, Mr. Long moved to amend his second amended
complaint, Assented to Mot. to File Third Am. Compl. (ECF No. 13), and prospectively
filed the third amended complaint with the Court. Third Am. Compl. and Demand
for Jury Trial (ECF No. 14). The Court granted the motion without objection on
December 9, 2015. Order Granting Without Obj. Mot. to Amend (ECF No. 15). The

The original complaint referred to the Portland police officer as “Officer Abbott.” Compl. at 1.
Mr. Long identified the officer as “Officer Brent Abbott” in his third amended complaint. See Third
Am. Compl. and Demand for Jury Trial at 1 (ECF No. 14).
1

2

Defendants answered on December 18, 2015. Answer and Aff’tive Defenses to Third
Am. Compl. and Jury Trial Demand (ECF No. 16).
On April 12, 2016, Mr. Long moved to amend his third amended complaint.
Mot. to File Am. Compl. (ECF No. 22). The Defendants objected on May 2, 2016.
Defs.’ Obj. to Pl.’s Mot. to File Am. Compl. (ECF No. 23). Mr. Long replied the
following day. Reply Mem. Supporting Mot. to File Third Am. Compl. (ECF No. 24).
On May 16, 2016, the Court granted the motion to amend. Oral Order Granting Mot.
to Am. Compl. (ECF No. 27). Mr. Long filed the Fourth Amended Complaint on May
17, 2016. Fourth (and last) Am. Compl. and Demand for Jury Trial (ECF No. 28)
(Fourth Am. Compl.). The Defendants answered on May 25, 2016. Answer and
Aff’tive Defenses to Fourth Am. Compl. and Jury Trial Demand (ECF No. 29)
(Answer).
B.

Summary Judgment Filings

On June 15, 2016, the Defendants moved for summary judgment on all counts
in Mr. Long’s Fourth Amended Complaint, Defs.’ Mot. for Summ. J. (ECF No. 30)
(Defs.’ Mot.), and provided a supporting statement of material facts. Defs.’ Statement
of Material Facts in Supp. of Mot. for Summ. J. (ECF No. 31) (DSMF). Mr. Long
opposed the Defendants’ motion on July 6, 2016. Pl.’s Opp’n to Defs.’ Mot. for Summ.
J. (Pl.’s Resp.). Mr. Long also submitted a response to the Defendants’ statement of
material facts, Pl.’s Opp’n, Attach. 1, Pl.’s Resp. to Defs.’ Statement of Material Facts
and Pl.’s Statement of Fact at 1–21 (ECF No. 35) (PRDSMF), as well as a statement
of additional material facts.

Id. at 21–39 (PSAMF).

3

On August 10, 2016, the

Defendants replied to Mr. Long’s opposition. Defs.’ Reply in Supp. of Mot. for Summ.
J. (ECF No. 40). The Defendants also filed a reply to Mr. Long’s statement of
additional materials facts. Defs.’ Resp. to Pl.’s Statement of Additional Facts (ECF
No. 41) (DRPSAMF).
II.

SUMMARY JUDGMENT FACTS
A.

Arthur J. Long

Arthur J. Long, the Plaintiff in this case, lived in Portland, Maine, from his
birth until his twenties. PSAMF ¶ 12; DRPSAMF ¶ 12. He last lived in Portland on
a regular basis in 1978. PSAMF ¶ 13; DRPSAMF ¶ 13. From 1972 to 1978, Mr. Long
worked as a reserve officer for the Portland Police Department.
DRPSAMF ¶ 16.

PSAMF ¶ 16;

Mr. Long attended the Maine Criminal Justice Academy and

graduated in 1978. PSAMF ¶ 15; DRPSAMF ¶ 15. From 1977 to 1992, Mr. Long
worked as a full-time law enforcement officer at the following departments:
Thomaston Police, York County Sheriff’s Office, Old Orchard Beach Police, and
Kittery Police. PSAMF ¶ 16; DRPSAMF ¶ 16. Mr. Long is currently self-employed
as a contractor. PSAMF ¶ 17; DRPSAMF ¶ 17.
B.

Events Leading to the Arrest

On August 9, 2014, Arthur J. Long drove to Portland for a visit and arrived at
approximately 6:00 PM.2 PSAMF ¶ 2; DRPSAMF ¶ 2. Mr. Long has a sister who

In their responses to the Plaintiff’s statement of additional material facts, the Defendants
repeatedly object on the ground that the Plaintiff’s paragraphs contain multiple factual assertions and
therefore violate District of Maine Local Rule 56(c). See DRPSAMF ¶ 2. They demand that the Court
strike the allegedly offending paragraphs. Id.
Local Rule 56(c) provides, as the Defendants point out, that “[t]he opposing statement may
contain in a separately titled section additional facts, each set forth in a separately numbered
paragraph and supported by a record citation as required by subsection (f) of this rule.” D. ME. LOC.
2

4

lives on Munjoy Hill in Portland, and he visited her on August 9, 2014. PSAMF ¶ 14;
DRPSAMF ¶ 14.

He spent the evening walking throughout the Old Port and

peninsula. PSAMF ¶ 2; DRPSAMF ¶ 2. People of all ages were out walking and
enjoying the evening.3

Id.

Others were taking advantage of the warm night

temperature by eating outside in front of their respective eateries. Id.
At around 10:00 PM, Mr. Long entered an establishment called “Asylum.”
PSAMF ¶ 3; DRPSAMF ¶ 3. There, he ordered food and consumed less than two
glasses of beer before leaving at around 11:00 PM. Id. Mr. Long started to walk
toward his vehicle, which was parked on Park Avenue in Portland near the Post
Office. PSAMF ¶ 4; DRPSAMF ¶ 4.
On his walk, he encountered an individual—identified in the record as Peter
Bowers—sitting on the stairs in front of a building at 24 Preble Street. Id. As Mr.
Long approached, Mr. Bowers, whom Mr. Long did not know, said “great night, huh?”
Id. The two men struck up a conversation. Id. As the conversation continued, Mr.
Long sat down on the stairs with Mr. Bowers. Id. Mr. Bowers started talking about
his girlfriend, and how they had had a falling out and she had left. Id. Mr. Bowers

R. 56(c). The Court interprets this subsection as incorporating a modicum of common sense. The
subsection does not mean that each statement of material fact must be limited to one sentence only.
Its purpose is to require the proposing party to clearly provide record support for his proposed facts
and to allow the responding party to isolate specific facts and object to them. Although Mr. Long has
occasionally stretched the spirit of the local rule, the Defendants have been able to interpose objections
and the Court has been able to rule on them. The Court overrules each of the Defendants’ Local Rule
56(c) objections.
3
Mr. Long’s paragraph 2 contains four sentences. The Defendants did not object to the first
two, but objected to the last two on foundational grounds. The Court overrules these objections. Mr.
Long is relating what he personally observed while walking the streets of Portland during the evening
of August 9, 2014. The Court has some concerns about the relevance of these facts, which seems
marginal, but the Defendants did not object on that ground.

5

was drinking from a beer can, and Mr. Long noticed another open beer can to the left
of where Mr. Long was seated. Id. Mr. Long did not sip from any of the several cans
of beer on or near the stairway at 24 Preble Street. PSAMF ¶ 27; DRPSAMF ¶ 27.
C.

Mr. Long’s Refusal to Provide Identification

Officer Brent Abbott, who began serving as a patrol officer for the PPD in 2011,
was on duty on the evening of August 9, 2014. DSMF ¶¶ 1–2; PRDSMF ¶¶ 1–2.
Shortly before midnight, Officer Abbott and another Portland police officer, Michael
Bennis, received a call from dispatch to respond to a complaint of four to five males
drinking in public and loitering at 24 Preble Street. DSMF ¶ 3; PRDSMF ¶ 3; PSAMF
¶¶ 18, 53–54; DRPSAMF ¶¶ 18, 53–54. When Officers Abbott and Bennis arrived at
24 Preble Street, they found two white males—a younger man and an older man—
seated on the steps in front of the building. DSMF ¶ 4; PRDSMF ¶ 4.

Mr. Long was

one of the two men. DSMF ¶ 7; PRDSMF ¶ 7. At no time did Mr. Long see a group
of 4–5 males drinking on the stoop. PSAMF ¶ 19; DRPSAMF ¶ 19.
Mr. Long observed the two Portland police cruisers arrive.

PSAMF ¶ 5;

DRPSAMF ¶ 5. Officer Abbott exited the first cruiser and donned a pair of leather
gloves. Id. There were several cans of beer near the stairway, including an open can
approximately seven feet from Mr. Long.4 DSMF ¶¶ 5, 8; PRDSMF ¶¶ 5, 8; PSAMF

The Defendants propose this statement: “Both males had an open 12 ounce can of beer next to
them on the steps.” DSMF ¶5 (citing DSMF, Attach. 3, Aff. of Brent Abbott ¶ 5 (ECF No. 31) (Abbott
Aff.)). Mr. Long seeks to qualify the statement to clarify that although there was a can of beer next to
him, it was seven feet away. PRDSMF ¶ 5 (citing Pl.’s Resp., Attach. 2, Aff. of Pl. Arthur J. Long ¶ 26
(ECF No. 35) (Long Aff.) (“[T]here were several cans of beer on or near the stairway at 24 Preble Street
on August 9, 2014, the closest of which was about 7 feet from me”)).
The Defendants point out that “Mr. Long has admitted in response to a request for admission
that when the Portland Police officers first spoke to him on August 9, 2014, he was seated next to an
open can of beer.” DSMF ¶ 8 (citing DSMF, Attach. 1, Pl.’s Am. Resp. to Def. City of Portland’s Request
4

6

¶ 26; DRPSAMF ¶ 26. The lighting where the incident occurred was adequate but
not very bright. PSAMF ¶ 24; DRPSAMF ¶ 24. There was no overhead lighting at 24
Preble Street, and the closest overhead light was approximately 200 feet away. Id.
According to Officer Abbott, the beer cans had a “sweat line” on them, indicating that
they contained beer.5 DSMF ¶ 6; PRDSMF ¶ 6; PSAMF ¶ 25; DRPSAMF ¶ 25.

for Admissions ¶ 18 (ECF No. 31)). Mr. Long’s admission that “he was seated next to an open can of
beer” and his statement that he was “about 7 feet” from the nearest can are not inconsistent. Viewing
the facts in the light most favorable to Mr. Long, the Court amends the Defendants’ proposed
statement to reflect that the nearest can of beer was seven feet away from Mr. Long. See Gillen v.
Fallon Ambulance Service, Inc., 283 F.3d 11, 17 (1st Cir. 2002) (citing C.K. Smith & Co. v. Motiva
Enters., 269 F.3d 70, 72 (1st Cir. 2001)) (“Consistent with the conventional summary judgment praxis,
we recount the facts in the light most hospitable to the appellant’s theory of the case, consistent with
record support”).
5
The Defendants propose this statement: “Officer Abbott observed that the cans had a ‘sweat
line’ on them, indicating to him that they contained beer.” DSMF ¶ 6 (citing Tr. of Dep. of Brent D.
Abbott 38:8–14 (ECF No. 32) (Abbott Dep.); Abbott Aff. ¶ 6). Mr. Long denies the statement, explaining
that “it would not have been possible” for Officer Abbott to notice any “sweat line” because he never
scrutinized or approached within seven feet of the beer can. PRDSMF ¶ 6 (citing Long Aff. ¶ 25).
Mr. Long also proposes a statement that reasserts the language contained in his denial:
Defendant Abbott testifies near the end of his deposition and in his affidavit that at
nearly midnight in a badly lit location in Portland, he could make out “sweat lines” in
cans of beer sitting on a public sidewalk, and thus could deduce that the cans contained
beer. This is simply not possible. The lighting was not adequate for that, and at no
point prior to arresting Mr. Long did Defendant Abbott touch or otherwise scrutinize
the beer cans or even get any closer than 7 feet to any of them.
PSAMF ¶ 25 (citing Long Aff. ¶ 25); see also PSAMF ¶¶ 60–62. The Defendants seek to qualify the
statement. DRPSAMF ¶ 25. They admit that Officer Abbott observed a “sweat line” but argue that
the remaining statements in the paragraph are legal arguments and not factual assertions. Id.
Parties may not introduce legal arguments as if they constitute statements of fact, as the Court
can “afford no evidentiary weight to ‘conclusory allegations, empty rhetoric, unsupported speculation,
or evidence which, in the aggregate, is less than significantly probative.’” Tropigas de P.R., Inc. v.
Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Rogan v. City of
Boston, 267 F.3d 24, 27 (1st Cir. 2001)).
There is a genuine dispute regarding whether Officer Abbott observed a “sweat line” on the
beer cans. Mr. Long’s claim that it was “simply not possible” for Officer Abbott to have observed a
“sweat line” is speculative because Mr. Long cannot know what Officer Abbott observed. At the same
time, Mr. Long’s assertions that Officer Abbott did not touch or draw within seven feet of the beer can
are facts with record support. The Court must view these facts in the light most favorable to Mr. Long.
Accordingly, the Court will maintain the facts alleged in the statement and remove only the conclusory
language. Additionally, the Court amends Officer Abbott’s statement to clarify that it represents
Officer Abbott’s belief.

7

However, at no point prior to arresting Mr. Long did Officer Abbott touch or approach
within seven feet of any beer can. PSAMF ¶ 25; DRPSAMF ¶ 25.
Officer Abbott regularly patrolled the area around 24 Preble Street.6 DSMF ¶
11. According to the Defendants, at the time Officer Abbott encountered the two men
on August 9, 2014, he believed that the city of Portland had posted signs prohibiting
drinking at intervals of approximately 200 feet in the area encompassing 24 Preble
Street and that there was such a sign within 200 feet of the address.7 DSMF ¶¶ 9–
11. By contrast, Mr. Long states that he returned to the area shortly after August 9,
2014, and there were no signs prohibiting drinking within 200 feet of 24 Preble
Street.8 PSAMF ¶ 28; DRPSAMF ¶ 28. Despite Mr. Long’s long association with the

In his response, Mr. Long writes: “See Response to DSMF ¶ 9, and see Long Aff., ¶¶ 29-33.”
PRDSMF ¶ 11. Neither his response to Defendants’ statement nine nor his affidavit controvert the
Defendants’ assertion that Officer Abbott had regularly patrolled the area around 24 Preble Street.
Mr. Long does not admit, deny, or qualify this statement and therefore failed to properly controvert it.
It is deemed admitted pursuant to Local Rule 56(e). D. ME. LOC. R. 56(e).
7
Mr. Long denies this statement. PRDSMF ¶ 9. He argues that there are no signs prohibiting
drinking within 200 feet of 24 Preble Street and thus “[i]t would have been impossible for Defendant
Abbott to have arrived at the belief that such signs were posted by the City of Portland in the area of
24 Preble Street approximately every 200 feet if he had in fact patrolled that area.” Id. For support,
Mr. Long cites his affidavit, in which he testifies that shortly after the incident, he returned to the
area but could not locate any sign prohibiting drinking. Id. (citing Long Aff. ¶ 28). Additionally, Mr.
Long highlights that Officer Abbott testified in his deposition that he believed that Officer Bennis went
in search of a sign prohibiting drinking while Officer Abbott questioned Mr. Long. Id. (citing Abbott
Dep. 21:13–19). Mr. Long points out there is no evidence in the record that Officer Bennis located any
sign. Id.
There is a genuine dispute as to whether Officer Abbott truly believed there was a sign
prohibiting drinking within 200 feet of 24 Preble Street. Although the Court is charged with viewing
the facts in the light most favorable to the nonmovant, the Court retains the Defendants’ statement
for purposes of later discussion; however, the Court amends the statement to make it clear that the
statement only reflects Officer Abbott’s belief that there was such a sign, not that there was in fact
such a sign.
Mr. Long again raises this issue in his proposed statement thirty-six, which reads: “Defendant
Abbott’s claims about the prevalence of these signs in the area of Preble Street—on August 9, 2014 or
ever—[are] demonstrably false.” PSAMF ¶ 33. The Defendants object. DRPSAMF ¶ 33. The Court
agrees that this paragraph is argument, not evidence, and the Court has not included it.
8
The Defendants seek to qualify this statement. DRPSAMF ¶ 28. They admit that “at some
indeterminate time after the incident in this case the Plaintiff was unable to locate any signs within
200 feet of ‘the site’ prohibiting drinking.” Id. However, the Defendants assert that Mr. Long “has not
6

8

city of Portland, PSAMF ¶ 29; DRPSAMF ¶ 29, he asserts that over a span of fortyfive years, he has never observed a location in the city of Portland, with the exception
of Wharf Street, where there are signs prohibiting drinking posted at intervals of 200
feet.9,10 PSAMF ¶¶ 29; 31–32; DRPSAMF ¶¶ 29, 31–32. The only places in the city
of Portland where Mr. Long has observed posted signs prohibiting drinking and
referencing the drinking in public ordinance are in the parts of the city with the
densest concentrations of drinking establishments, including the Old Port on Wharf

established that he has personal knowledge of whether such signage existed on August 9, 2014 or a
basis for any such personal knowledge.” Id. Additionally, the Defendants explain that Mr. Long’s
statement does not call into question Officer Abbott’s belief that there was a sign prohibiting drinking
within 200 feet of 24 Preble Street. Id.
Mr. Long’s affidavit states that he returned to “the site”—presumably 24 Preble Street—
shortly after the arrest and that he did not observe any signs prohibiting drinking within 200 feet.
Long Aff. ¶ 28. Contrary to the Defendants’ assertion, this fact does call into question the validity of
Officer Abbott’s belief. Viewed in the light most favorable to Mr. Long, the fact that Mr. Long was
unable to find a sign shortly after the arrest tends to show that there actually was no sign during the
arrest, and based on this fact, a finder of fact may be more likely to conclude that Officer Abbott did
not truly believe that there was a sign within 200 feet at the time of the arrest. The Court retains the
proposed statement.
9
Mr. Long proposes this statement: “There is no location in the City of Portland—aside from
possibly Wharf Street—where at intervals of approximately 200 feet there are signs that prohibited
drinking in public and that referenced state law, despite what Defendant Abbott testified to in his
deposition.” PSAMF ¶ 31 (internal quotation marks omitted) (citing Long Aff. ¶ 2). The Defendants
interpose a denial, pointing out that the cited portion of Mr. Long’s affidavit does not support this
assertion. DRPSAMF ¶ 31. Moreover, they assert that Mr. Long has not established personal
knowledge that would allow him to make such a categorical statement.
The Defendants are correct that the cited portion of Mr. Long’s affidavit does not relate to this
assertion. Given that Mr. Long’s statement of additional material facts is a near replica of his affidavit,
the Court surmises that Mr. Long intended to cite to paragraph thirty-one of his affidavit, rather than
paragraph two. Long Aff. ¶ 31.
The Court also agrees that Mr. Long has not demonstrated sufficient personal knowledge to
support his broad claim regarding signage in the entire city of Portland. However, Mr. Long was
previously a police officer in Portland and has become familiar with the city over the past forty-five
years. See PSAMF ¶ 29; DRPSAMF ¶ 29. Accordingly, the Court qualifies the statement to reflect
that Mr. Long has not personally observed such signage in the city of Portland.
10
In PSAMF ¶ 32, Mr. Long expands on his statement in PSAMF ¶ 31. He states, “As far as Mr.
Long is aware, there never has been any location in the City of Portland” where there were signs
prohibiting drinking at intervals of 200 feet. PSAMF ¶ 32 (emphasis added). The Defendants seek to
qualify the statement, raising the same objections indicated in footnote 9. DRPSAMF ¶ 32. For the
reasons set forth in footnote 9, the Court amends the statement and combines it with the amended
PSAMF ¶ 31 to clarify that Mr. Long has never personally observed signage prohibiting drinking at
intervals of 200 feet in the city of Portland.

9

Street, Fore Street, and Commercial Street, the bottom of Exchange and Market
Streets, Congress Street near High Street and near the intersection of Washington
Avenue, next to the Snug Pub and Sulky Lounge.11 PSAMF ¶ 30; DRPSAMF ¶ 30.
Officer Abbott believed that it was PPD policy to issue a warning to a person
suspected of drinking in public—unless that person had already received a warning
earlier in the calendar year.12

DSMF ¶ 13; PRDSMF ¶ 13.

As Officer Abbott

understood it, the officers ask for a suspect’s identification to determine if a suspect
previously received a warning and to generate a report if a warning is necessary.
DSMF ¶ 14; PRDSMF ¶ 14. Officer Abbott asked both Mr. Long and Mr. Bowers for
identification.13 PSAMF ¶ 5; DRPSAMF ¶ 5. Officer Abbott did not inform Mr. Long
of the PPD’s warning policy. PSAMF ¶¶ 37–38; DRPSAMF ¶¶ 37–38. Mr. Bowers

The Defendants interpose a qualified response to this statement. DRPSAMF ¶ 30. They
contend that Mr. Long does not have sufficient personal knowledge of the city of Portland to make this
statement. Id. The Court disagrees. For the reasons previously noted, Mr. Long’s combined
experience would be sufficient to allow a factfinder to determine that his observations of the nodrinking signage in Portland were accurate. The Court deems Plaintiff’s paragraph thirty admitted.
12
Mr. Long denied this statement and paragraph 14. PRDSMF ¶¶ 13–14. He notes that Chief
Sauschuck did not testify to this policy nor did Assistant Chief Malloch. Id. He also observes that the
Defendants did not cite any standard operating procedure or other procedural rule or policy to support
this statement. Id. Finally, he argues that a factfinder “could easily conclude that this is a false, selfserving statement.” Id. Even so, Mr. Long’s concerns do not render Officer Abbott’s statement
inadmissible. The Defendants supported the statement with a record reference to Officer Abbott’s
deposition transcript and affidavit. This is sufficient to allow the statements and it is not permissible
to reject the statements based on the argument that a factfinder might not believe them. However, as
the statement is based solely on Officer Abbott’s sworn statements and is not corroborated by any
objective support, the Court qualifies these paragraphs to reflect that they are Officer Abbott’s
understanding of the police policy.
13
The Defendants propose this statement: “The officers advised the two men that they were
prohibited from drinking in public and the officers asked for their identification.” DSMF ¶ 12 (citing
Abbott Dep. 39:4–12; Abbott Aff. ¶ 10). Mr. Long denies the statement. PRDSMF ¶ 12. According to
Mr. Long’s version, Officer Abbott exited his cruiser and first asked for identification. PSAMF ¶ 5
(citing Long Aff. ¶ 5). The record supports Mr. Long’s version. See Long Aff. ¶ 5 (“[Officer Abbott]
exited the car while putting on some leather gloves. [Officer Abbott] asked [Mr. Long and Mr. Bowers]
for some identification.” Long Aff. ¶ 5. Viewing the record in the light most favorable to Mr. Long, the
Court omits the Defendants’ statement.
11

10

provided Officer Abbott with identification. DSMF ¶ 15; PRDSMF ¶ 15; PSAMF ¶ 5;
DRPSAMF ¶ 5. The officers gave Mr. Bowers a warning not to drink in public and
advised him to move along. DSMF ¶ 16; PRDSMF ¶ 16.
Mr. Long asked Officer Abbott why he wanted him to produce identification.
PSAMF ¶ 5; DRPSAMF ¶ 5. Officer Abbott said to Officer Bennis, “Oh, we got a wise
guy here.” Id. Officer Abbott stated to Mr. Long, “Didn’t you know that it’s against
the law to drink in public?”14

Id.; PSAMF ¶ 34; DRPSAMF ¶ 34.

Mr. Long

immediately told Officer Abbott that he was not drinking in public. PSAMF ¶¶ 5, 27;
DRPSAMF ¶ 5, 27. Officer Abbott referred to the open beer can to Mr. Long’s left,
and Mr. Long explained that the beer can was there before he arrived. PSAMF ¶ 5;
DRPSAMF ¶ 5. Officer Abbott never observed Mr. Long take a drink from the nearby
beer cans, PSAMF ¶ 57, DRPSAMF ¶ 57, and Mr. Long repeatedly denied that he
had been drinking in public. PSAMF ¶¶ 34–35, 58; DRPSAMF ¶¶ 34–35, 58. While
Officer Abbott confronted Mr. Long, Officer Bennis went looking without success for
a sign posted within 200 feet prohibiting drinking.15 PSAMF ¶ 70; DRPSAMF ¶ 70.

The Defendants admit this statement but propose the following: “Officer Abbott explained to
Mr. Long that he was suspected of drinking in public and that the officers needed his identification.”
DSMF ¶ 18 (citing Abbott Dep. 25:15–20, 39:4–12; Abbott Aff. ¶ 16). Mr. Long denies this statement,
asserting that Officer Abbott never accused him of drinking in public. PRDSMF ¶ 18 (citing Long Aff.
¶¶ 5, 35). Rather, Mr. Long asserts that Officer Abbott asked him if he knew that drinking in public
was a crime. Id. Mr. Long may be splitting hairs, but the record supports the denial. See Long Aff.
¶¶ 5, 35. Viewing the facts in the light most favorable to Mr. Long, the Court omits the Defendants’
proposed statement.
15
Mr. Long proposes this statement: “While Defendant Abbott confronted Mr. Long, Officer
Bennis went looking, without success, for a sign posted within 200 feet prohibiting drinking.” PSAMF
¶ 70. The Defendants qualify the statement to assert that the record does not suggest that Officer
Bennis looked “without success.” DRPSAMF ¶ 70.
The record reveals that during the incident, Officer Bennis “went and looked for a ‘drinking in
public’ sign”; however, Officer Bennis’ statement does not indicate whether he ever found one. Tr. of
Dep. of Michael J. Sauschuck 21:11–25 (ECF No. 33) (Sauschuck Dep.).
14

11

Officer Abbott again requested Mr. Long’s identification, and Mr. Long again
asked why. PSAMF ¶ 6, 36; DRPSAMF ¶ 6, 36. Officer Abbott asked Mr. Long, “Do
you live here?” PSAMF ¶ 6; DRPSAMF ¶ 6. Mr. Long replied that he did not. Id.
Officer Abbott stated, “You’re trespassing.”16 Id. Mr. Long formerly served as a police
officer in Maine and did not believe that he was trespassing.17 Id.; PSAMF ¶¶ 15–
16; DRPSAMF ¶¶ 15–16. The stoop was approximately ten feet across and Mr. Long
and Mr. Bowers were not blocking entry or exit from the building. 18 PSAMF ¶¶ 21,
23. To Mr. Long’s knowledge, no one complained to them or about them regarding
their blocking public access to the building or committing any other act.19 PSAMF ¶
22; DRPSAMF ¶ 22.

Mr. Long is in the difficult position of proving a negative: that a sign did not exist. As Officer
Bennis searched for a sign during the incident, the Court infers that if he had found one within two
hundred feet of 24 Preble Street, he would have said so. The Court deems paragraph seventy admitted
without qualification.
16
The Defendants propose: “Officer Abbott also explained to Mr. Long that he was loitering.”
DSMF ¶ 19 (citing Abbott Dep. 39:4–12). Mr. Long denies the statement, explaining that Officer
Abbott accused him of trespassing, not loitering. PRDSMF ¶ 19. The record supports the denial. In
Officer Abbott’s deposition, he admits, “I believe I may have used the word ‘trespass’[.]” Abbott Dep.
39:21. The Court omits the Defendants’ proposed statement.
17
Mr. Long proposes this statement: “As a graduate of the Maine Criminal Justice Academy
municipal police school and having been employed as a full-time Maine police officer, Mr. Long knew
that he was not trespassing within the definition of 17A.” PSAMF ¶ 6. The Defendants contend that
this is a legal argument and does not constitute a fact that requires a response. DRPSAMF ¶ 6. The
Court agrees that Mr. Long’s statement that he “knew that he was not trespassing” is a legal
conclusion. See Tropigas, 637 F.3d at 56. The Court amends the language to clarify that Mr. Long
believed that he was not trespassing.
18
The Defendants qualify this statement as a conclusory assertion that does not require a
response. DRPSAMF ¶ 21. The Court disagrees. In this statement, Mr. Long does not simply conclude
that he was not trespassing. Rather, he offers the dimensions of the stoop and the positioning of his
and Mr. Bowers’ bodies relative to the entrance of the building as facts to support his claim that he
was not trespassing. Viewing the facts in the light most favorable to Mr. Long, the Court admits the
statement.
19
Mr. Long proposes this statement: “No one complained to them or about them regarding
blocking public access [] at 24 Preble Street on August 9, 2014[.]” PSAMF ¶ 22 (citing Long Aff. ¶ 22;
Dep. of Arthur J. Long 29:7–9 (ECF No. 34) (Long Dep.). The Defendants deny the statement, arguing
that Mr. Long “has not demonstrated personal knowledge as to complaints made about them[.]”
DRPSAMF ¶ 22. Mr. Long’s statement largely parrots the cited record evidence: “No one complained
to us or about us, as far as I know, about blocking public access…” Long Aff. ¶ 22. The Court disagrees

12

Officer Abbott said, “Let’s see some ID or you’re going to fucking jail.” PSAMF
¶ 7; DRPSAMF ¶ 7; DSMF ¶ 21; PRDSMF ¶ 21. Mr. Long protested Officer Abbott’s
decorum and language and asked why he would be going to jail. Id. Officer Abbott
responded, “For not providing ID.” PSAMF ¶ 7; DRPSAMF ¶ 7. Mr. Long replied,
“I’m not giving you my ID.” Id.; DSMF ¶¶ 17, 20, 22; PRDSMF ¶¶ 17, 20, 22.
D.

The Arrest

At this point, Mr. Long told Officer Abbott that he was going to video tape the
incident on a cell phone. PSAMF ¶ 42; DRPSAMF ¶ 42. Immediately thereafter,
Officer Abbott ordered Mr. Long to stand up, turn around, and put his hands behind
his back.20 PSAMF ¶¶ 8, 43; DRPSAMF ¶¶ 8, 43. According to the Defendants, both
when Officer Abbott requested Mr. Long’s identification and when he made the
arrest, Officer Abbott believed that he had probable cause that Mr. Long was drinking
in public and loitering.21 DSMF ¶ 28; PRDSMF ¶ 28; PSAMF ¶ 56; DRPSAMF ¶ 56.

that Mr. Long failed to demonstrate personal knowledge regarding complaints made about him. Even
if someone did not complain directly to Mr. Long, Mr. Long might have overheard others complaining
about them. Mr. Long’s statement clarifies that he was unaware of people complaining about their
presence, either directly or indirectly. The Court includes the statement.
20
The Defendants propose this statement: “Before applying handcuffs to Mr. Long, Officer
Abbott advised Mr. Long that he was placing him under arrest for refusing to provide identification.”
DSMF ¶ 27 (citing Abbott Aff. ¶ 20). Mr. Long denies this statement, arguing that Officer Abbott
placed him under arrest immediately after Mr. Long said that he was going to film the incident.
PRDSMF ¶ 27 (citing Long Aff. ¶ 42). The record supports Mr. Long’s denial. See Long Aff. ¶ 42
(“Immediately after I told Defendant Abbott that I was going to video tape the incident on my cell
phone, he told me I was under arrest”). Viewing the record in the light most favorable to Mr. Long,
the Court omits the Defendants’ proposed statement.
21
Mr. Long denies this statement. PRDSMF ¶ 28. He states that “[n]o reasonably well-trained
officer in Defendant Abbott’s shoes could have believed that probable cause existed for either drinking
in public or loitering.” PRDSMF ¶ 28. Mr. Long’s denial constitutes a legal conclusion, and Mr. Long
violates Local Rule 56(c) by failing to cite any record evidence in support of his denial.
Nevertheless, the Court recognizes the difficulty in disproving an individual’s belief, and based
on the other facts in the record, there is a genuine dispute regarding whether Officer Abbott truly
believed there was probable cause to arrest Mr. Long for drinking in public or loitering. For purposes
of later discussion, the Court retains the Defendants’ statement but amends it to clarify that it reflects
only the Defendants’ position.

13

At no time during the encounter did Officer Abbott believe that he was in any kind of
danger.22 PSAMF ¶ 85; DRPSAMF ¶ 85.
As Mr. Long was getting up and beginning to turn around and put his hands
behind his back, Officer Abbott shoved Mr. Long from behind. DSMF ¶ 30; PRDSMF
¶ 30; PSAMF ¶¶ 8, 44; DRPSAMF ¶¶ 8, 44. Mr. Long could not tell whether he was
shoved by one hand or two. DSMF ¶ 32; PRDSMF ¶ 32. Mr. Long was not punched
or struck with any implement. DSMF ¶ 31; PRDSMF ¶ 31. Mr. Long fell face down
onto the steps, hitting the second stair with his chest. PSAMF ¶¶ 8, 77; DRPSAMF
¶¶ 8, 77; DSMF ¶ 33; PRDSMF ¶ 33. Officer Abbott then placed handcuffs on Mr.
Long.23 PSAMF ¶ 8; DRPSAMF ¶ 8; DSMF ¶ 34; PRDSMF ¶ 34. Although Mr. Long
never consented to Officer Abbott touching him in any manner, Mr. Long did not
resist. PSAMF ¶¶ 40–41, 84; DRPSAMF ¶¶ 40–41, 84. As Officer Abbott helped Mr.
Long to his feet, Mr. Long requested to see a supervisor. PSAMF ¶ 8; DRPSAMF ¶
8. Mr. Long did not sustain a bruise, nor did he seek any medical treatment as a
result of the incident. DSMF ¶ 35; PRDSMF ¶ 35; PSAMF ¶ 46; DRPSAMF ¶ 46.

Mr. Long proposes this statement in relevant part: “Defendant Abbott never felt at any time
in dealing with Mr. Long that Mr. Long was in possession of weapons or was otherwise any threat to
officer or public safety.” PSAMF ¶ 85 (citing Abbott Dep. 22:2–5). The Defendants qualify the
statement, arguing the record material does not support the assertion. The Court amends the
statement to more closely align with the record evidence.
23
The Defendants attest that “Office Abbott stood Mr. Long up and prepared to place him in
handcuffs.” DSMF ¶ 29 (citing Abbott Dep. 33:11–14). Mr. Long denies the statement. PRDSMF ¶
29. According to Mr. Long’s version, Officer Abbott handcuffed him while he was on the ground.
PSAMF ¶ 8. The record supports Mr. Long’s version. See Long Aff. ¶ 8 (“[Officer Abbott] shoved me
from behind forcing me face down on the stairs whereupon he began placing handcuffs on me”).
Viewing the facts in the light most favorable to Mr. Long, the Court omits the Defendants’ proposed
statement.
22

14

Before the supervisor arrived, Officer Abbott reached into Mr. Long’s front left
pocket and removed Mr. Long’s wallet.24 PSAMF ¶ 9; DRPSAMF ¶ 9. Sometime
later, prior to being transported to the Sheriff’s office and while still in handcuffs, Mr.
Long asked Officer Abbott if he still had Mr. Long’s wallet. Id. Officer Abbott looked
around as if he had misplaced it. Id. Mr. Long scanned the area and located his
wallet resting on the stairs. Id. Officer Abbott said, “There’s no ID in it.” Id.; DSMF
¶ 25; PRDSMF ¶ 25. Mr. Long did not keep his identification in his wallet; rather,
he kept his identification and credit cards in a hard case that was located in his front
right pocket. PSAMF ¶ 9; DRPSAMF ¶ 9. However, the wallet did contain over $700
in cash. Id. Officer Abbott asked for Mr. Long’s identification one more time, and
Mr. Long again refused. DSMF ¶ 26; PRDSMF ¶ 26.
When the supervisor arrived, Mr. Long related his version of the events,
including what he perceived to be Officer Abbott’s unprofessional, profane language
and conduct.25 PSAMF ¶ 10, DRPSAMF ¶ 10. Subsequently, the officers transported

The Defendants assert that Officer Abbott “rolled Mr. Long…on his side and removed his
wallet” before placing him in handcuffs. DSMF ¶ 23 (citing Abbott Dep. 27:7–17). First, Mr. Long
denies the statement, arguing that Officer Abbott “did not conduct this search until after he was placed
under arrest[.]” PRDSMF ¶ 23 (citing Long Aff. ¶¶ 8–9). The record supports the denial. See Long
Aff. ¶¶ 8–9 (“[T]he officer shoved me from behind forcing me face down on the stairs whereupon he
began placing handcuffs on me…[T]he arresting officer [then] reached into my front left pocket where
he removed my wallet”). Later, Mr. Long asserts that “[i]n fact, Defendant Abbott searched Mr. Long
before he was under arrest.” PSAMF ¶ 100 (emphasis added). The record supports this assertion as
well. See Abbott Dep. 27:10–22. The Court is unsure what position Mr. Long wants to take. For
purposes of the Court’s Fourth Amendment analysis, however, the distinction is not material. In either
case, viewing the facts in the light most favorable to Mr. Long, it appears that Mr. Long was detained
when Officer Abbott reached into his pocket. See Abbott Dep. 27:18–28:4. Given the flow of the events,
the Court assumes that Mr. Long was in handcuffs at the time Officer Abbott performed the search.
25
Mr. Long proposes this statement: “When the supervisor arrived, Mr. Long relayed his version
of the events that took place including Officer Abbott’s unprofessional, profane language and conduct.”
PSAMF ¶ 10. The Defendants seek to qualify the statement. They admit that Mr. Long spoke with a
supervisor but argue that the remainder of the statement is legally conclusory. DRPSAMF ¶ 10. The
Court disagrees. The statement clarifies that it was Mr. Long’s view of Officer Abbott’s conduct and
it was also what Mr. Long says he told the supervisor.
24

15

Mr. Long to the Cumberland County Jail where he went through a booking process.
PSAMF ¶ 11, DRPSAMF ¶ 11. Mr. Long was charged with failure to give a correct
name and date of birth, in violation of 17-A M.R.S. § 15-A(2). DSMF ¶ 36; PRDSMF
¶ 36. Officer Abbott did not arrest or cite Mr. Long for the offenses of drinking in
public or loitering. PSAMF ¶¶ 72, 76, DRPSAMF ¶¶ 72, 76. Mr. Long engaged a
criminal defense attorney to defend him against the charges, and despite the fact that
the case was dismissed early on, he paid a flat fee of $1,500. PSAMF ¶ 52; DRPSAMF
¶ 52.
E.

The Internal Investigation

On August 10, 2014—one day after the arrest—Mr. Long typed a statement of
facts that described his version of the events the night before.26 PSAMF ¶ 50;
DRPSAMF ¶ 50. Dep. of Arthur Long, Ex. 3, Statement of Arthur J. Long at 32–33
(ECF No. 34) (Long Statement). Almost four months later, on December 4, 2014, Mr.
Long sent his statement of facts along with a letter entitled “Complaint of Officer and
Department Conduct” to Lieutenant Robert Martin of the Internal Affairs Division of
the PPD. Dep. of Arthur Long, Ex. 3, Compl. of Officer and Dep’t Conduct at 31 (ECF
No. 34) (Long Letter); DSMF ¶ 42; PRDSMF ¶ 42; PSAMF ¶ 50; DRPSAMF ¶ 50. The
letter notified Lieutenant Martin that Mr. Long was submitting the statement of facts

Mr. Long originally proposed this statement in relevant part: “Mr. Long wrote/typed his
Statement of Claim…and sent it out with a transmittal letter describing his ‘formal complaint’
regarding the events of August 9, 2014 to Lieutenant Robert Martin…” PSAMF ¶ 50. The Defendants
seek to qualify the statement, pointing out that the document Mr. Long references was not a
“Statement of Claim”; rather, it was entitled “Statement of Arthur J. Long.” The record supports the
Defendant’s qualification. See Dep. of Arthur Long, Ex. 3, Statement of Arthur J. Long at 32–33 (ECF
No. 34) (Long Statement). The Court amends the statement to reflect that Mr. Long typed “a statement
of facts”—the term Mr. Long used in his transmittal letter to Lieutenant Martin. See Dep. of Arthur
Long, Ex. 3, Compl. of Officer and Dep’t Conduct at 31 (ECF No. 34) (Long Letter).
26

16

“as a formal complaint against the arresting officer and against those individuals who
may be either directly or indirectly involved in this matter.” Long Letter at 31. In
his complaint, Mr. Long did not specifically state that the officers lacked probable
cause for the arrest or that the officers conducted an unlawful search; nevertheless,
the context of the letter suggested that Mr. Long was complaining that he had been
arrested without probable cause.27 DSMF ¶ 43; PRDSMF ¶ 43.
Sergeant Julie Cannafarina investigated Mr. Long’s complaint. Dep. of Arthur
J. Long at 26 (ECF No. 34) (Long Dep.). She determined that Mr. Long’s letter
contained two allegations: (1) that Officer Abbott used excessive force, and (2) that
Officer Abbott used profane and unprofessional language. Id. at 26; DSMF ¶ 45;
PRDSMF ¶ 45. On July 23, 2015, Assistant Chief Vernon Malloch reviewed Sergeant
Cannafarina’s investigation and recommended “a finding of not sustained for both
allegations against Officer Abbott.”

Long Dep. at 27.

On July 28, 2015, Chief

Sauschuck concurred with Assistant Chief Malloch and concluded that Mr. Long’s
allegations were not sustained. Id. at 28–29; DSMF ¶ 46; PRDSMF ¶ 46; PSAMF ¶
93; DRPSAMF ¶ 93. Because the investigation did not address the issue of probable
cause, Chief Sauschuck did not evaluate that issue.28 DSMF ¶ 37.

The Defendants propose the following: “Mr. Long did not state in his complaint that the officers
lacked probable cause for his arrest.” DSMF ¶ 43. Mr. Long denies the statement, pointing out that
“Mr. Long clearly implied in his complaint that no such probable cause existed.” PRDSMF ¶ 43. A
review of the December 4, 2014 letter reveals that Mr. Long never mentioned the absence of probable
cause; nevertheless, the context of the letter indicates that he was complaining to the PPD that he had
been arrested without probable cause. Viewing the facts in the light most favorable to Mr. Long, the
Court includes the Defendants’ statement that the complaint did not mention the words, “probable
cause,” and adds that it is a logical inference from the contents of the letter that Mr. Long was
complaining about being arrested without probable cause.
28
Mr. Long denies this statement, claiming that “Chief Sauschuck refused under any
circumstances to consider or evaluate whether probable cause existed, despite repeated invitations to
27

17

On February 18, 2015, while the PPD investigated Mr. Long’s December 4,
2014 letter, Mr. Long visited Attorney Michael Waxman. PSAMF ¶ 47; DRPSAMF ¶
47. Attorney Waxman drafted a “Notice of Claim” and sent it to the PPD by certified
mail on February 20, 2015.29 PSAMF ¶ 49; DRPSAMF ¶ 49; DSMF, Attach. 2, Pl.’s
Resp. to Req. for Production at 8–9 (ECF No. 31).
F.

Chief Michael Sauschuck

Michael Sauschuck has been the Chief of Police in Portland since 2012. DSMF
¶ 37; PRDSMF ¶ 37. Chief Sauschuck was not present for the incident involving Mr.
Long and had no physical contact with Mr. Long on August 9, 2014. DSMF ¶¶ 38,
40; PRDSMF ¶¶ 38, 40. Chief Sauschuck was not involved in the decision to arrest
Mr. Long, nor was he involved in any searches of Mr. Long. DSMF ¶¶ 39, 41;
PRDSMF ¶¶ 39, 41.
The PPD maintains policies with regard to arrests, searches, and the use of
force. DSMF ¶ 56; PRDSMF ¶ 56. The PPD requires that officers receive regular

do so at his deposition.” PRDSMF ¶ 47. Mr. Long also points out that Chief Sauschuck testified that
“if an open container is 7 feet away from an individual I would say that there’s not reason to believe
that it’s constructive possession.” Id. (citing Sauschuck Dep. 41:16–19. From this, Mr. Long states
that the “only logical conclusion to draw about why Chief Sauschuck ‘did not conduct any evaluation
of probable cause’ is that he is aware it did not exist on August 9, 2014…[w]hy else would the CEO
and head of a paramilitary structure be so remarkably evasive about this central issue?” Id.
The record does not support Mr. Long’s argument that Chief Sauschuck was “remarkably
evasive” in responding to why he did not address the issue of probable cause in his review of the
internal investigation. Chief Sauschuck repeatedly and consistently explains that he did not explore
probable cause because the investigation was based only on Officer Abbott’s alleged use of force and
improper language and because the District Attorney’s office previously determined that Officer
Abbott had probable cause for an arrest. See Sauschuck Dep. 13:12–14:17; 16:16–18; 17:7–10; 17:23–
18:3; 18:15–20; 19:3–7.
29
Mr. Long’s proposed statement indicates that Attorney Waxman sent the Notice of Claim to
“the Defendants.” PSAMF ¶ 49. The Defendants seek to qualify the statement, explaining that
Attorney Waxman sent the notice to the PPD. DRPSAMF ¶ 49. The record supports the Defendants’
qualification. See DSMF, Attach. 2, Pl.’s Resp. to Req. for Production at 8–9 (ECF No. 31).

18

training on these policies.30 DSMF ¶ 57. According to the Defendants, Officer Abbott
is familiar with the PPD policies regarding arrests, searches, and the use of force. 31
DSMF ¶ 59. Since Officer Abbott started with the PPD, he has received training in
warrantless arrests, lawful searches, the use of force, and requests for
identification.32 DSMF ¶¶ 60–63; PRDSMF ¶¶ 60, 62–63. The Defendants allege

Mr. Long denies this statement, pointing out that the statement is “too broad or vague” and
that “[t]here is no record citation to any particular policy which requires officers to receive regular
training[.]” PRDSMF ¶ 57. The Court disagrees that the statement is broad or vague. Moreover, the
Defendants do not need to cite a particular policy provision; the sworn affidavit of Portland’s police
chief is sufficient to include the asserted fact. Here, Chief Sauschuck’s affidavit supports the
Defendants’ assertion that officers in Portland receive regular training. See Sauschuck Aff. ¶ 15; see
also Abbott Dep. 57:10–22. Because the Defendants provide a proper foundation for the statement and
because Mr. Long offers no relevant facts to the contrary, the Court admits the Defendants’ statement.
31
Mr. Long denies this statement, arguing that “[t]his statement is simply not one we can conjure
any record citation to disagree with, for it would involve getting inside Defendant Abbott’s head.”
PRDSMF ¶ 59. Although the Court recognizes that it is difficult to disprove an individual’s thoughts
or beliefs, Mr. Long had the ability during discovery to make inquiries of Officer Abbott designed to
elicit whether he was actually familiar with the PPD policies. Mr. Long could then cite Officer Abbott’s
responses as evidence that Officer Abbott was not familiar with the policies. As it stands, Mr. Long
offers no evidence to rebut the Defendants’ assertion. Consequently, the Court includes the
Defendants’ statement but amends the language to clarify that the statement reflects the Defendants’
position.
32
Mr. Long denies that Officer Abbott received training as to when it is permissible to request
identification from an individual. PRDSMF ¶ 61 (citing Abbott Dep. 58:19–59:15). The Court rejects
Mr. Long’s denial. During Officer Abbott’s deposition, Attorney Waxman questioned him about the
training he has received since joining the PPD. See Abbott Dep. 57:2–60:1. Officer Abbott explained
that he receives quarterly on-line training regarding warrantless arrests, the use of force, and certain
statutes. Id. 57:2–16. He further explained that if there are changes in the law that affect warrantless
arrests, the use of force, or any other issues, he typically receives a group email followed by on-line or
classroom training. Id. 57:23–58:4.
Mr. Waxman inquired:
30

Q:
A:
Q:
A:

Has there been any specific training with regard to arresting those who have—
are believed to have committed a Class D or E crime outside your presence?
It would have to be on-line trainings.
But no specific seminar that you [can] think of or memo that you can think of
that addressed that issue?
Not off the top of my head. I would have to look at the training records.

Id. 58:10–18. Thus, Mr. Waxman’s line of questioning appears to distinguish between on-line training
on one hand and specific classroom seminars and departmental memoranda on the other. Immediately
thereafter, Mr. Waxman asked:

19

that from the time of Chief Sauschuck’s employment in 2012 through the evening of
August 9, 2014, Chief Sauschuck was not aware of any pattern or practice of Portland
police officers—including Officer Abbott—making arrests without probable cause,
using excessive force, requesting identification without a proper justification, or
conducing unlawful searches.33 DSMF ¶¶ 48–55, 58.

Q:
A:
Q:
A:
Q:
A:
Q:
A:

Can you recall there being any formal training by the Portland Police
Department with regard to the appropriateness of demanding that citizens
produce identification?
Not off the top of my head, not a certain block of training.
Can you recall this ever being an issue that’s been discussed or brought up by
any kind of memoranda at the Portland Police Department?
Not off the top of my head.
Has this ever, that you can recall, been a hot topic of discussion among officers
informally?
It’s a hot topic throughout the land.
Okay. And in your overhearing or participating in these discussions, has there
been a consensus as to when it’s appropriate to demand that citizens produce
identification?
With the training, yeah…

Id. 59:6–23. Mr. Long cites this passage to show that Officer Abbott did not receive any training with
respect to requesting identification. PRDSMF ¶¶ 57, 61. However, given Mr. Waxman’s earlier line
of questioning, it appears that Mr. Waxman’s questions and Officer Abbott’s responses were geared
toward whether Officer Abbott received training in the form of formal classroom seminars or
departmental memoranda. Mr. Waxman never specifically asked about other forms of training,
including on-line training, even though Officer Abbott explained earlier that he received on-line
training as an officer with the PPD. Id. 57:10–16.
The record indicates that Officer Abbott received at least some training on the issue of
requesting identification. First, Officer Abbott’s sworn affidavit asserts, “Since I started with the
Portland Police Department, I have received training as to when it is permissible to request
identification from people.” Abbott Aff. ¶ 24. In addition, Officer Abbott specifically mentioned
“training” in response to Mr. Waxman’s question about whether there is “a consensus as to when it’s
appropriate to demand that citizens produce identification.” Id. 59:20–23. The Court concludes that
Officer Abbott received some training on requesting identification, but the training did not necessarily
involve departmental memos or formal instruction at the PPD.
33
In response to DSMF ¶¶ 48–55, Mr. Long offers a boilerplate denial:
Deny. The only way for Chief Sauschuck to be and remain unaware of any pattern or
practice…would be for him to turn a blind eye to it, as he has in this case. “There’s
none so blind as those who will not see.” This is the very essence of deliberate
indifference. Refusing to even consider whether Defendant Abbott [established
probable cause, was justified in demanding that Mr. Long produce identification,
searched Mr. Long without a proper justification, or used excessive force] underscores
a deliberately indifferent attitude toward the conduct of his officers and the rights of
persons who come into contact with his officers.

20

III.

PARTIES’ POSITIONS
A.

Mr. Long’s Fourth Amended Complaint

Mr. Long asserts the following claims:
1.

Counts I–III (Violations of 42 U.S.C. § 1983)

In Count I, Mr. Long alleges that Officer Abbott, under color of state law,
subjected Mr. Long to a deprivation of his constitutional rights, specifically his rights
to (1) bodily integrity, (2) freedom from the use of unreasonable force, (3) freedom
from unreasonable warrantless searches, (4) freedom from arrest except upon a
finding of probable cause, and (5) procedural and substantive due process. Fourth
Am. Compl. ¶ 53.
In Count II, Mr. Long alleges that Chief Sauschuck’s “failure to a) properly
supervise and/or discipline Officer Abbott and/or b) promulgate appropriate policies
regarding arrests upon probable cause, and the use of force and c) train his officers,
including Officer Abbott, on arrest upon probable cause and the appropriate use of
force” displayed a “reckless or callous disregard of, or indifference to, the rights of Mr.
Long.” Id. 67–68.
In Count III, Mr. Long alleges Chief Sauschuck, as a policymaker for the city
of Portland, “adopted a custom or policy of abdicating any appropriate level of
supervision and/or discipline” of Officer Abbott. Id. ¶ 73. Mr. Long also asserts that

PRDSMF ¶¶ 48–55; see also PRDSMF ¶ 58.
Mr. Long fails to cite any record evidence to support his denials. See D. ME. LOC. R. 56(c).
Under Local Rule 56(f), the Court is authorized to “deem admitted” the Defendants factual assertions.
See D. ME. LOC. R. 56(f). However, out of an abundance of deference to Mr. Long as the nonmovant,
and recognizing that it is difficult to disprove an individual’s personally-held belief, the Court amends
the statement of fact to make clear that the statement reflects the Defendants’ position.

21

Chief Sauschuck “adopted a custom or policy of permitting his officers to make arrests
without establishing probable cause and to use force under circumstances which do
not in fact require such force, and to conduct unreasonable searches.” Id. ¶ 74. Mr.
Long contends such an approach to the use of arrests and force amounts to an
unconstitutional custom or policy that represented a “reckless or callous disregard of,
or indifference to, the rights of Mr. Long.” Id. ¶¶ 75, 77.
2.

Counts IV (Assault) and V (Unlawful Arrest)

In Count IV, Mr. Long alleges that Officer Abbott’s actions constituted an
unjustified assault upon Mr. Long. Id. ¶ 79. Further, in Count V, Mr. Long asserts
that Officer Abbott arrested him in bad faith and without probable cause. Id. ¶ 82–
83.
B.

The Defendants’ Motion for Summary Judgment

The Defendants request summary judgment on all counts in Mr. Long’s Fourth
Amended Complaint. First, the Defendants argue that the record evidence does not
indicate that any of the Defendants committed constitutional violations. Next, the
Defendants contend that qualified immunity protects Officer Abbott and Chief
Sauschuck from liability for alleged constitutional violations. Finally, the Defendants
claim that Officer Abbott is entitled to summary judgment on Mr. Long’s state law
claims because Officer Abbott is entitled to discretionary function immunity and
because Mr. Long failed to comply with the procedural requirements of the MTCA.
1.

Mr. Long’s Constitutional Claims
a.

Probable Cause to Arrest Mr. Long

22

The Defendants state that Officer Abbott arrested Mr. Long for failure to give
a correct name or date of birth in violation of 17-A M.R.S. 15-A(2). Defs.’ Mot. at 3.
That statute provides in relevant part that “[a]ny person who a law enforcement
officer has probable cause to believe has committed or is committing a crime...who
intentionally fails or refuses to provide to that officer reasonably credible evidence of
that person’s correct name, address or date of birth commits a Class E crime[.]” 17A M.R.S. § 15-A(2).
The Defendants claim that Officer Abbott had probable cause to believe that
Mr. Long committed the crime of drinking in public in violation of 17 M.R.S. § 2003A(2). According to the Defendants:
“Mr. Long’s presence where males were reported to have been drinking
in public, and the fact that Mr. Long was next to an open and partially
full can of beer in an area the City routinely posts with signs prohibiting
public drinking, constitute sufficient information to establish the
elements of the crime [of drinking in public.]”
Defs.’ Mot. at 5.
Additionally, the Defendants assert that Officer Abbott had probable cause to
believe that Mr. Long was loitering in violation of the city of Portland’s Code of
Ordinances. Id. at 6. The Defendants claim that Officer Abbott was aware of a report
of males loitering at 24 Preble Street and found Mr. Long sitting on the stairs in front
of that address. Id. Given Mr. Long’s presence at the point of ingress and egress to
24 Preble Street, the Defendants argue that Officer Abbott was justified in concluding
that Mr. Long was loitering. Id. Accordingly, the Defendants contend that because
Officer Abbott had probable cause to believe that Mr. Long was drinking in public

23

and loitering, he also had probable cause to arrest Mr. Long for failing to provide
identification. Id.
In response, Mr. Long asserts that the record fails to establish that Officer
Abbott had probable cause to arrest Mr. Long for drinking in public and loitering.
Pl.’s Resp. at 1–2 (citing, inter alia, PSAMF ¶¶ 65–67, which includes Assistant Chief
Malloch’s deposition testimony concerning whether probable cause existed to arrest
Mr. Long). Mr. Long points out that Officer Abbott did not observe him drinking in
public or “hindering access of a public way to any person or vehicle.” Id. at 2. Because
Officer Abbott lacked probable cause to suspect that Mr. Long committed any
underlying crime, Mr. Long contends that Officer Abbott had no authority to arrest
him for refusing to provide identification. Id. Therefore, Mr. Long asserts that the
arrest violated his right to be free from unreasonable seizures under the Fourth
Amendment. Id.
The Defendants reply that Mr. Long’s opposition to summary judgment “is
premised on speculation, inadmissible evidence, and conclusory assertions, but not
upon a genuine issue of material fact.” Defs.’ Reply at 1. The Defendants assert, for
instance, that Mr. Long has not demonstrated that there was no sweat line on the
beer can, nor has he demonstrated that there was no sign prohibiting drinking within
200 feet of 24 Preble Street. Id. More generally, the Defendants contend that Mr.
Long has presented no evidence that would undermine Officer Abbott’s stated belief
that a sign was posted nearby. Id.

24

Finally, the Defendants take issue with Mr. Long’s reliance on certain
statements by Assistant Chief Vernon Malloch. Id. at 2. They point out that Mr.
Long cannot rely on Assistant Chief Malloch’s opinions because Mr. Long did not
designate him as an expert. Id. at 2 (citing Harriman v. Hancock County, 627 F.3d
22, 33 (1st Cir. 2010)).
b.

Search Incident to Arrest

The Defendants assert that “[i]t is established law that a law enforcement
officer may search a person incident to a valid arrest without the requirement of a
warrant.” Defs’ Mot. at 7 (quoting United States v. Robinson, 414 U.S. 218, 235
(1973)). The Defendants acknowledge that Officer Abbott removed Mr. Long’s wallet
before he announced that Mr. Long was under arrest. Id. However, they contend
that Officer Abbott’s conduct was nevertheless a lawful search incident to arrest
because Officer Abbott had probable cause to arrest Mr. Long for failing to provide
identification at the time he removed Mr. Long’s wallet. Id.
Mr. Long responds that Officer Abbott performed an unlawful search when he
reached into his pocket to extract his wallet. Pl.’s Resp. at 2–3. He argues that the
search was not incident to an arrest because Officer Abbott conducted the search
before arresting him. Id. at 4. Moreover, Mr. Long claims that the search did not
constitute a permissible frisk under Terry v. Ohio, 392 U.S. 1 (1968), because Officer
Abbott was not concerned for his safety or the safety of others. Id. at 3–4.
In reply, the Defendants state that a search that occurs immediately before a
formal arrest is valid provided that probable cause existed before the search. Defs.’

25

Reply at 2–3 (collecting cases). Because Officer Abbott demonstrated that he had
probable cause at the time he removed Mr. Long’s wallet, and because the formal
arrest occurred immediately thereafter, the Defendants argue that the search was
valid under the Fourth Amendment as incident to arrest. Id. at 3.
c.

Excessive Force

The Defendants contend that Officer Abbott’s alleged actions cannot support a
claim of excessive force under the Fourth Amendment because his alleged actions
were “not objectively unreasonable as a matter of law.” Defs.’ Mot. at 8. They point
out that the Supreme Court has held that “not every push or shove” constitutes
excessive force, id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)), and liken the
case to Fernandez-Salicrup v. Figueroa-Sancha, 790 F.3d 312 (1st Cir. 1990), in which
the First Circuit held that an officer did not use excessive force when he shoved an
individual face-first into a wall for a minor violation, even though the individual did
not pose an immediate threat to the officer. Id. at 8–9. Moreover, they claim that the
amount of force that Officer Abbott used can be “reliably informed by the fact” that
Mr. Long did not suffer any injuries or seek any medical treatment. Id. at 10 (citing
Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991)).

Therefore, the

Defendants claim that Officer Abbott’s use of force was not objectively unreasonable,
and that they are entitled to summary judgment. Id. at 11.
In response, Mr. Long argues that Officer Abbott’s “gratuitous and completely
unnecessary use of force” violated his Fourth Amendment rights. Pl.’s Resp. at 4–8.
First, Mr. Long argues that whether the use of force violates the Fourth Amendment

26

“is largely informed by the gravity of the crime[.]” Id. at 5. Thus, he attempts to
distinguish Fernandez-Salicrup arguing that in that case, the plaintiff was suspected
of “rioting and causing aggravated damages,” whereas Mr. Long merely refused to
produce identification. Id. at 4. Likewise, Mr. Long points out that the officers in
Dean suspected that the arrestee was an escaped armed felon. Id. at 5–6. Mr. Long
also contends that serious harm is not necessary in order to make out a claim of
excessive force, and therefore the fact that Mr. Long did not report any injury does
not preclude his excessive force claim. Id. at 6 (citing Lester v. Chicago, 830 F.2d 706,
714 (7th Cir. 1987)).
Moreover, Mr. Long asserts that Officer Abbott’s use of force served “no
legitimate penological purpose[.]” Id. at 7. Instead, Mr. Long surmises that Officer
Abbott “felt justified in meting out some revenge against Mr. Long for refusing to
capitulate to his demands.” Id. at 5. Mr. Long urges the Court to allow a factfinder
to determine whether Officer Abbott’s shove was sufficiently gratuitous and
unnecessary to constitute a violation of his Fourth Amendment rights. Id. at 7–8
(citing Burbank v. Davis, 227 F. Supp. 2d 176, 186 (D. Me. 2002) (“if [the officer]
gratuitously and unnecessarily hit and manhandled [the arrestee] for no legitimate
law enforcement reason it could not be objectively reasonable for it to be non-apparent
to him that his actions violated [the arrestee’s] rights”)).
The Defendants reply that Mr. Long fails to distinguish Fernandez-Salicrup,
which they characterize as controlling. Defs.’ Reply at 3. They also assert that Mr.
Long’s reliance on Burbank is misplaced because the use of force in that case was

27

dramatically different from a single push in the back. Id. The Defendants admit that
Officer Abbott’s alleged push of Mr. Long “may have been unnecessary, but it was not
unreasonable.” Id. (citing Fernandez-Salicrup, 790 F.3d at 327).
2.

Supervisory Liability Claim Against Chief Sauschuck

Next, the Defendants assert that the summary judgment record does not
support a claim of supervisory liability against Chief Sauschuck. Defs.’ Mot. at 11–
13. They contend that there is no evidence that Chief Sauschuck directly participated
in the events on August 9, 2014, or that he was deliberately indifferent in a manner
that had “some causal connection to the subsequent tort.”

Id. at 11–12 (citing

Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009)). In particular, the
Defendants claim that Chief Sauschuck was not aware of “any custom or practice of
the Portland police officers generally—or Officer Abbott in particular—engaging in
any of the violations alleged by Mr. Long” or any “deficiencies” in training,
supervision, or hiring that would cause the alleged violations. Id. at 12. As such, the
Defendants request the Court to enter summary judgment on all claims against Chief
Sauschuck. Id. at 13.
According to Mr. Long, on the other hand, Chief Sauschuck is liable as a
supervisor because he has “completely abdicated his duty to supervise and train his
officers in the field” on the issue of probable cause. Pl.’s Resp. at 8–9. He asserts that
Chief Sauschuck’s deposition testimony evidences a deliberate indifference to the
constitutional rights of the people with whom his officers interact, and that “such
deliberate indifference was the moving force behind the constitutional violations

28

complained of in this case.” Id. at 9. Therefore, Mr. Long contends that he may
maintain his claims against Chief Sauschuck under a theory of supervisory liability.
Mr. Long asserts no caselaw in support of his assertions.
In reply, the Defendants assert that Mr. Long mischaracterizes Chief
Sauschuck’s testimony. Defs.’ Reply at 4. They repeat that “there is no evidence of
deliberate indifference on the part of Chief Sauschuck” and that he was “not aware
of any custom or practice of Portland police officers generally—or Officer Abbott in
particular—engaging in any of the violations alleged by Mr. Long.” Id. at 5.
3.

Municipal Liability Claim Against the City of Portland

The Defendants explain that governmental entity liability under 42 U.S.C. §
1983 requires that the governmental entity adhere to a policy or custom that causes
the constitutional violation at issue. Defs.’ Mot. at 13 (citing City of Canton, Ohio v.
Harris, 489 U.S. 378, 385 (1989)). Moreover, the Defendants assert that “the policy
or custom must be the result of acts or omissions of the municipality’s policymakers
that exhibit ‘deliberate indifference’ to the rights of the municipality’s inhabitants.”
Id. (quoting City of Canton, 489 U.S. at 387–90). According to the Defendants, Mr.
Long provides no evidence of such deliberate indifference, much less a policy, custom,
or practice that was the motivating force behind the alleged violations. Id. at 14.
In response, Mr. Long defends his claims against the city of Portland on a
theory of municipal liability. Pl.’s Resp. at 10. In particular, Mr. Long asserts that
Chief Sauschuck is a policy-maker for the city of Portland whose “policy of abdication

29

and ignorance of the law” was a moving force behind the alleged constitutional
violations. Id. Again, Mr. Long cites no caselaw in support of his assertions.
4.

Qualified Immunity

The Defendants contend that, even assuming the truth of Mr. Long’s
allegations, qualified immunity protects Officer Abbott and Chief Sauschuck. Defs.’
Mot. at 14–17. With respect to Chief Sauschuck, they argue that “there is no record
evidence to suggest that he had any reason to suspect that any of Mr. Long’s clearlyestablished rights would be violated.” Id. at 16. Turning to Officer Abbott, the
Defendants claim that, given the specific factual context of the case, “it cannot be said
that every reasonable official would have understood that Officer Abbott’s actions
violated Mr. Long’s clearly-established constitutional rights.” Id. Accordingly, the
Defendants state that Officer Abbott and Chief Sauschuck are entitled to summary
judgment on all of Mr. Long’s § 1983 claims.
By contrast, Mr. Long contends that qualified immunity does not shield Officer
Abbott or Chief Sauschuck. Pl.’s Resp. at 10–12. With respect to Officer Abbott, Mr.
Long asserts that no reasonable officer could have believed (1) that there was
probable cause to arrest Mr. Long for drinking in public or loitering, (2) that shoving
Mr. Long in the back was necessary, appropriate, reasonable, or lawful, or (3) that
conducting a non-consensual search of an individual was lawful without reasonable
suspicion that the individual was armed or dangerous. Pl.’s Resp. at 10–11. With
respect to Chief Sauschuck, Mr. Long argues that the record shows that Chief
Sauschuck “completely abdicated any training or supervision of his officers” with

30

respect to the alleged constitutional violations and that “such deliberate indifference
was the moving force behind the constitutional violations. Id. at 11–12. Therefore,
Mr. Long insists that qualified immunity does not shield Officer Abbott or Chief
Sauschuck’s conduct. Id. at 10–12.
The Defendants reply that, based on the record facts, “[i]t is at least
arguable…that Officer Abbott had probable cause for an arrest and that he was
therefore justified in removing Mr. Long’s wallet and using some amount of force to
effect the arrest.” Defs’ Reply. at 5. Additionally, the Defendants point out that the
PPD had policies in place dealing with arrests, searches, and the use of force and that
Chief Sauschuck did not “completely abdicate[] any training or supervision of his
officers” as Mr. Long suggests. Id. at 6. Therefore, the Defendants conclude that
qualified immunity shields Officer Abbott and Chief Sauschuck. Id. at 6.
5.

Mr. Long’s State Law Claims
a.

Notice Under the Maine Tort Claims Act

The Defendants assert that Mr. Long’s state tort law claims against Officer
Abbott—namely assault and unlawful arrest—fail because Mr. Long did not give
timely notice pursuant to the MTCA. Defs.’ Mot. at 17 (citing 14 M.R.S. § 8107). The
Defendants explain that the MTCA required Mr. Long to file written notice of the
claim within 180 days after the claim accrued. Id. According to the Defendants, this
meant that Mr. Long needed to file a notice of claim on or before February 5, 2015.
However, the Defendants allege that “Mr. Long admits that his notice of claim was
not mailed to the Portland Police Department until February 20, 2015 and not

31

received by the department until February 23, 2015.” Id. at 18. Therefore, the
Defendants argue that Mr. Long’s tort claims are barred. Id.
Mr. Long argues in response that his December 4, 2014 letter to the PPD
“constitutes substantial compliance with” the notice requirements of the MTCA. Pl.’s
Resp. at 12. In particular, Mr. Long asserts that the December 4 letter provided his
name and address, a concise statement of the basis of his claim, the name and address
of any governmental employee involved, and a concise statement of the nature and
extent of the injury he claimed that he suffered. Id. (citing McCarthy v. Inhabitants
of the Town of Kennebunkport, 366 F. Supp. 2d 165, 168 (D. Me. 2005)). Because the
December 4 letter complied with the Act, and because he sent the letter within the
180-day period, Mr. Long contends that the MTCA does not bar his state tort law
claims. Id.
In reply, the Defendants repeat that Mr. Long admitted that he submitted his
only notice of claim on February 20, 2015.

Defs.’ Reply at 6.

Moreover, the

Defendants argue that Mr. Long’s reliance on the December 4, 2014 letter is
insufficient because he did not address the letter to the city clerk, treasurer, or
manager pursuant to ME. R. CIV. P. 4(d)(6). Id. The Defendants further contend that
the letter does not otherwise comply with the notice requirements set forth in the
MTCA. Id.
b.

Absolute Discretionary Function Immunity

Finally, the Defendants argue that even if Mr. Long gave timely notice, his
state law claims are barred by the immunity provisions of the MTCA, 14 M.R.S. §

32

8101 et seq. (2003). Defs.’ Mot. at 18–19. The Defendants state that “discretionary
immunity…applies unless the defendants’ conduct ‘clearly exceeded, as a matter of
law, the scope of any discretion [they] could have possessed in [their] official capacity
as [police officers].’” Id. at 18 (alterations in original) (quoting Polley v. Atwell, 581
A. 2d 410, 414 (Me. 1990)). According to the Defendants, Officer Abbott’s alleged
actions all fall within the scope of his discretion as a law enforcement officer, and
thus he is entitled to summary judgment on Mr. Long’s tort claims. Id. at 19.
By contrast, Mr. Long asserts that discretionary function immunity does not
shield the Defendants because no reasonable officer could have believed that there
was probable cause to make the arrest. Pl.’s Resp. at 12.
IV.

LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A fact is “material” if it “has the potential to
change the outcome of the suit.” Tropigas de Puerto Rico, Inc. v. Certain Underwriters
at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011) (quoting Borges ex rel. S.M.B.W.
v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). A dispute is “genuine” if “a reasonable
jury could resolve the point in favor of the nonmoving party.” Id. (quoting McCarthy
v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).
Once this evidence is supplied by the moving party, the nonmovant must
“produce ‘specific facts, in suitable evidentiary form, to . . . establish the presence of
a trialworthy issue.’” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2

33

(1st Cir. 1999) (quoting Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748
(1st Cir. 1994)).

In other words, the non-moving party must “present ‘enough

competent evidence’ to enable a factfinder to decide in its favor on the disputed
claims.” Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Goldman
v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)). The Court then
“views the facts and draws all reasonable inferences in favor of the nonmoving
party.”

Ophthalmic Surgeons, Ltd. v. Paychex, Inc., 632 F.3d 31, 35 (1st Cir.

2011). However, the Court “afford[s] no evidentiary weight to ‘conclusory allegations,
empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less
than significantly probative.’” Tropigas, 637 F.3d at 56 (quoting Rogan v. City of
Boston, 267 F.3d 24, 27 (1st Cir. 2001)); accord Sutliffe v. Epping Sch. Dist., 584 F.3d
314, 325 (1st Cir. 2009).
V.

DISCUSSION
A.

Count I: Mr. Long’s Constitutional Claims
1.

Probable Cause to Arrest Mr. Long

Mr. Long alleges that Officer Abbott, acting under color of state law, violated
his right “to be free from arrest except upon a finding of probable cause that he had
committed a crime[.]” Fourth Am. Compl. ¶ 53. The Fourth Amendment protects
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures[.]”

U.S. Const. amend. IV.

A

warrantless arrest by a law enforcement officer is reasonable under the Fourth
Amendment where it is based on probable cause. See Brinegar v. United States, 338

34

U.S. 160, 175–176 (1949); Robinson v. Cook, 706 F.3d 25, 33 (1st Cir. 2013). “Probable
cause for an arrest ‘exists when the arresting officer, acting upon apparently
trustworthy information, reasonably concludes that a crime has been (or is about to
be) committed and that the putative arrestee likely is one of the perpetrators.’”
United States v. Brown, 500 F.3d 48, 56 (1st Cir. 2007) (quoting Acosta v. Ames Dep't
Stores, Inc., 386 F.3d 5, 9 (1st Cir. 2004)). Whether probable cause exists depends
upon the reasonable conclusion to be drawn from the facts known to the arresting
officer at the time of the arrest. Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citing
Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
In this case, Officer Abbott arrested Mr. Long for failing to produce
identification in violation of 17-A M.R.S. 15-A(2). The Defendants attest that Officer
Abbott was justified in asking for Mr. Long’s identification because Officer Abbott
had probable cause to believe that Mr. Long was drinking in public and loitering.
Defs.’ Mot. at 3–6. The Court addresses the Defendants’ justifications in turn.
a.

Drinking in Public

Under Maine law:
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.
17 M.R.S. § 2003-A(2).

Under this statute, probable cause exists to arrest an

individual for public drinking when an officer reasonably concludes that the

35

individual was (1) drinking liquor,34 (2) in a public place, (3) within 200 feet of a notice
posted conspicuously in the public place that forbids drinking in the public place or
after being forbidden to do so personally by a law enforcement officer.
The parties do not dispute that the front steps of 24 Preble Street constitute a
“public place” for purposes of the statute. Rather, the central disputes turn on
whether Officer Abbott reasonably believed that Mr. Long was drinking, and whether
he reasonably believed that the conduct occurred within 200 feet of a posted notice.
With respect to whether Officer Abbott reasonably believed the Mr. Long was
drinking, the summary judgment facts indicate that shortly before midnight, Officer
Abbott and another officer received a call from dispatch to respond to a complaint of
four to five males drinking at 24 Preble Street. When the officers arrived at that
address, they encountered Mr. Long and another male sitting on the front steps.
There were “several cans of beer on or near the stairway”; the closest was an open
can seven feet from Mr. Long.
When viewed in the light most favorable to Mr. Long, the record compels the
conclusion that there is a genuine issue of material fact as to whether Officer Abbott
could have reasonably believed that Mr. Long was consuming alcohol from a can of
beer seven feet away from him. If the open can of beer had been within arm’s length
of Mr. Long, an officer could reasonably assume that he had been drinking from it,
but people typically do not place a beverage seven feet away, so that they would have
to stand up and retrieve the can before taking a sip.

The statute defines “liquor” broadly as any “alcoholic beverage…intended for human
consumption, which contains more than ½ of 1% of alcohol by volume.” 17 M.R.S. § 2003-A(1)(B).
34

36

Officer Abbott asserts that he noticed a “sweat line” on the beer cans. If
believed, this would tend to prove not only that the cans contained beer but that the
beer cans had been recently opened. Mr. Long counters that Officer Abbott could not
have noticed any “sweat lines” because of the poor lighting around 24 Preble Street
and because Officer Abbott did not approach within seven feet of any of the beer cans.
PSAMF ¶ 25. Based on this contradictory evidence, there is a second genuine dispute
regarding whether Officer Abbott observed “sweat lines” on the beer cans.
Regardless of whether Officer Abbott noticed any “sweat lines,” it is arguable
that the officers nevertheless had probable cause to suspect that Mr. Long was
drinking because he was sitting among open beer cans at the exact address where the
officers received a complaint about a group of males drinking. But the complaint of
four or five males drinking beer did not match the two males Officer Abbott observed
sitting on the steps of 24 Preble Street.
The record reveals that Mr. Long informed the officers that he was not drinking
and that the beer cans were already on the stairway before he arrived. This fact is
not dispositive.

Although a suspect’s denial may form part of a police officer’s

probable cause determination, “[a] reasonable police officer is not required to credit a
suspect’s story.” Cox v. Hainey, 391 F.3d 25, 32 n.2 (1st Cir. 2004); see also Emanuel
v. Cty. of Wayne, 652 Fed. Appx. 417 (6th Cir. 2016) (citing Criss v. City of Kent, 867
F.2d 259, 263 (6th Cir. 1988) (stating that a police officer “is under no obligation to
give any credence to a suspect’s story nor should any plausible explanation in any
sense require the officer to forego arrest pending further investigation if the facts as

37

initially discovered provide probable cause”)). Yet, taken as a whole, the Court
concludes that there are genuine issues of material fact as to whether Officer Abbott
had probable cause to believe that Mr. Long had been drinking alcohol.
Even assuming that Officer Abbott had probable cause to believe that Mr. Long
was drinking, summary judgment is still inappropriate because the Court cannot
determine, based on the record, whether Officer Abbott reasonably believed that he
was within 200 feet of a sign prohibiting drinking when he arrested Mr. Long. As an
initial matter, the record is not clear whether there actually was a sign within 200
feet of 24 Preble Street at the time of the arrest. The parties agree that Mr. Long
returned to the area shortly after the arrest but could not locate a sign within 200
feet. Moreover, Mr. Long attests that he has lived, visited, and worked as a police
officer in Portland over the past forty-five years and has never personally observed a
location in the city where there are signs prohibiting drinking posted at intervals of
200 feet. Viewing the facts in the light most favorable to Mr. Long, the Court assumes
for purposes of summary judgment that there was no sign within 200 feet of where
Officer Abbott arrested Mr. Long.
Nevertheless, Officer Abbott claims that he believed there was a sign within
200 feet of 24 Preble Street at the time he arrested Mr. Long. DSMF ¶ 9. A law
enforcement officer’s mistaken belief of fact may legally support a determination of
probable cause as long as the mistake was objectively reasonable. See Liser v. Smith,
254 F. Supp. 2d 89, 97 (D.D.C. 2003) (“[W]hile an objectively reasonable mistake of
fact can legally support a determination of probable cause, a mistake that is the

38

product of the government’s willful ignorance, investigative negligence, or is
otherwise unreasonable, cannot”); see also Sherouse v. Ratchner, 573 F.3d 1055, 1059
(10th Cir. 2009) (“[A]n officer’s reasonable but mistaken understanding of the facts
justifying a search or seizure does not negate the legitimacy of the probable cause
determination”) (emphasis in original).

The question reduces to whether it was

objectively reasonable for Officer Abbott to believe that there was a sign prohibiting
drinking within 200 feet of where he arrested Mr. Long.
The existing record does not provide the Court with a sufficient foundation to
assess the reasonableness of Officer Abbott’s mistaken belief. The record merely
reflects that Officer Abbott had served as a patrol officer with the PPD since 2011,
and that he regularly patrolled the area around 24 Preble Street. Whether there was
such a sign is an objective fact. A factfinder could reasonably infer that the absence
of evidence of such a sign indicates that there was no such sign. This is particularly
true as Officer Bennis went off to locate a sign and there is no evidence that he found
one. With all of these facts, a jury could conclude that there was in fact no sign
prohibiting drinking within 200 feet of Preble Street and that no reasonable law
enforcement official in Officer Abbott’s position would believe that there was such a
sign, if none existed. Without more, the Court is unwilling to say, as a matter of law,
that Officer Abbott had probable cause to arrest Mr. Long for drinking in public.
b.

Loitering

The Defendants have a fallback. They assert that Officer Abbott was also
justified in requesting Mr. Long’s identification because Officer Abbott had probable

39

cause to believe that Mr. Long was loitering. Defs.’ Mot. at 6 (“[T]he information
available to Officer Abbott was sufficient to warrant a prudent person in believing
that Mr. Long was guilty of loitering”).

Portland’s Code of Ordinances defines

loitering as “remaining in essentially one (1) location, seated or standing, and shall
include the concept of spending time idly; to be dilatory; to linger; to stay; to saunter;
to delay; and to stand around.” City of Portland, Me., Code of Ordinances § 17-1(a)(1).
Under the Portland Code:
(b)
It shall be unlawful for any person to loiter either alone and/or in
consort with others in a public place in such manner as to:
(1)
Obstruct any public street, public highway, public
sidewalk or any other public place or building by hindering or
impeding or tending to hinder or impede the free and
uninterrupted passage of vehicles, traffic or pedestrians.
(2)
Commit in or upon any public street, public highway,
public sidewalk or any other public place or building any act or
thing which is an obstruction or interference to the free and
uninterrupted use of property or with any business lawfully
conducted by anyone in or upon or facing or fronting on any such
public street, public highway, public sidewalk or any other public
place or building, all of which prevents the free and uninterrupted
ingress and egress therein, thereon, and thereto;…
(c)
When any person causes or commits any of the conditions
enumerated in subsection (b) herein, a police officer or any law
enforcement officer shall order that person to stop causing or
committing such conditions and to move on or disperse. Any person who
fails or refuses to obey such orders shall be guilty of a violation of this
section.
Id. § 17-1(b)(1)–(2); (c). Hence, an individual is guilty of loitering if the person (1)
loiters in a manner set forth in the ordinance and (2) refuses to obey an officer’s
directive “to move on or disperse.”

40

Viewed charitably to the Defendants, the record presents some evidence that
Mr. Long loitered in a manner set forth in the city ordinance. By lingering on the
stoop of 24 Preble Street with Mr. Bowers, Mr. Long was arguably “tending to hinder”
the free and uninterrupted passage of pedestrians into the building. However, for
purposes of this motion, the Court must view the evidence in the light most favorable
to the Plaintiff, and Mr. Long asserts as a matter of fact that neither he nor Mr.
Bowers was blocking entry to or exit from the building, PSAMF ¶ 23; DRPSAMF ¶
23, and no one complained that they were blocking access to the building. PSAMF ¶
22; DRPSAMF ¶ 22. Furthermore, Mr. Bowers and Mr. Long were but two people
sitting on a stoop about ten feet across. PSAMF ¶ 21; DRPSAMF ¶ 21. Even if it is
theoretically possible that Mr. Long was loitering, it is equally clear that whether he
was doing so raises a genuine issue of material fact that must be resolved by a jury.
In addition, the Portland Code makes clear that Mr. Long could not be guilty
of the offense of loitering until he refused to obey an order to “move on or disperse.”
Based on the summary judgment facts, Mr. Long never ignored an order to “move on
or disperse”; indeed, Officer Abbott never ordered Mr. Long to vacate the area.
Consequently, Officer Abbott could not have established probable cause to believe
that Mr. Long committed the offense of loitering, nor could he use the offense of
loitering as a basis to ask for Mr. Long’s identification. Therefore, as the record
currently stands, the Court refuses to order summary judgment on Mr. Long’s claim
of wrongful arrest in Count I.
2.

Warrantless Search

41

Mr. Long next alleges that Officer Abbott, acting under color of state law,
violated his right “to be free from unreasonable, warrantless searches[.]” Fourth Am.
Compl. ¶ 53. It is settled law that a search of a person incident to a lawful arrest is
a traditional exception to the warrant requirement of the Fourth Amendment.
United States v. Robinson, 414 U.S. 218, 224 (1973). “[W]hether a formal arrest
occurred prior to or followed ‘quickly on the heels’ of the challenged search does not
affect the validity of the search so long as the probable cause existed prior to the
search.”35 United States v. Bizier, 111 F.3d 214, 217 (1st Cir. 1997) (emphasis added)
(quoting Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)). The validity of the search
in this case thus turns on whether Officer Abbott had probable cause to arrest Mr.
Abbott prior to reaching into his pocket and removing his wallet. However, the Court
is unable to determine whether Officer Abbott had probable cause to arrest Mr. Long
for failing to provide identification because the Court cannot say whether Officer
Long had probable cause to believe that Mr. Long was drinking in public or loitering
in violation of state and municipal law. Accordingly, the Court denies the Defendants’
motion for summary judgment on Mr. Long’s claim of an illegal search in Count I.
3.

Excessive Force

In his response to the Defendants’ statement of material facts, Mr. Long argues that Officer
Abbott did not conduct the search until after he was placed under arrest. PRDSMF ¶ 23. Later, in
his statement of additional material facts, Mr. Long asserts the opposite—namely that Officer Abbott
searched him before he was under arrest. PSAMF ¶ 100. In his memorandum in opposition to
summary judgment, Mr. Long argues that the search occurred before the arrest. See Pl’s. Resp. at 4.
Nevertheless, both of Mr. Long’s conflicting factual accounts have the arrest and the search occurring
almost simultaneously. As a result, it does not matter for purposes of the Court’s analysis whether
the arrest occurred before or after the challenged search. See United States v. Bizier, 111 F.3d 214,
217 (1st Cir. 1997) (“[W]hether a formal arrest occurred prior to or followed ‘quickly on the heels’ of
the challenged search does not affect the validity of the search so long as the probable cause existed
prior to the search”).
35

42

The Fourth Amendment guarantees citizens the right “to be secure in their
persons…against unreasonable…seizures.”

U.S. CONST. amend. IV.

Mr. Long

contends that Officer Abbott, acting under color of state law, violated his rights to
“bodily integrity” and to “be free of the use of unreasonable force[.]” Fourth Am.
Compl. ¶ 53. An excessive force claim under the Fourth Amendment requires a
showing that “the defendant employed force that was unreasonable under all the
circumstances.”

Morelli v. Webster, 552 F.3d 12, 23 (1st Cir. 2009).

“The

‘reasonableness’ inquiry in an excessive force case is an objective one: whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Graham
v. Connor, 490 U.S. 386, 397 (1989). Its measurement requires “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; Morelli, 552 F.3d at 23. “[T]he reasonableness test established in
Graham remains the applicable test for determining when excessive force has been
used, including those cases where officers allegedly lack probable cause to arrest.”
Jones v. Parmley, 465 F.3d 46, 62 (2nd Cir. 2006).
“The reasonableness of force used is determined not only with reference to the
need for the arrest and for reducing risk to the officers and the public but also with
reference to the manner in which the arrest is effected.” Dean, 924 F.2d at 369. “Not
every push or shove” will reach the level required for a viable excessive force claim.

43

Id. at 368. Additionally, “[i]t has long been recognized that ‘the right to make an
arrest…necessarily carries with it the right to use some degree of physical coercion
or threat thereof to effect it.’” Id. at 368–69 (quoting Graham, 490 U.S. at 396).
Furthermore, because “‘police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation,’ the reasonableness of
the officer’s belief as to the appropriate level of force should be judged from that onscene perspective.” Saucier v. Katz, 533 U.S. 194, 205 (2001) (quoting Graham, 490
U.S. at 396)). As the Supreme Court noted in Saucier, the Graham Court therefore
“set out a test that cautioned against the ‘20/20 vision of hindsight’ in favor of
deference to the judgment of reasonable officers on the scene.” Id. (quoting Graham,
490 U.S. at 396).
The Defendants analogize the present case to two other cases in which the
First Circuit rejected claims of excessive force. Defs.’ Mot. at 6–9. The Court agrees
with Mr. Long that Officer Abbott’s reference to Dean v. City of Worcester is largely
inapposite. Although the force that the officers used in that case—i.e., pushing an
individual against a wall—is somewhat similar to the force Officer Abbott allegedly
used against Mr. Long, the similarities end there. Dean, 924 F.2d at 366. In Dean,
the officers believed that they were arresting an escaped armed felon. Id. Here,
Officer Abbott arrested Mr. Long for the relatively benign offence of failing to provide
identification. Officer Abbott had no grounds to believe that Mr. Long was armed or
posed a flight risk. The circumstances in Dean, including the severity of the crime,

44

the potential threats to officers and the public, and the possibility of flight,
necessarily expand the scope of acceptable force beyond what would be considered
reasonable in the present case. Because of the critical dissimilarities between the
two cases, the Defendants’ analogy to Dean is unavailing.
The Defendants’ analogy to Fernandez-Salicrup v. Figueroa-Sancha is closer.
Although there are some similarities between Mr. Long’s version of the facts in this
case and the facts in Fernandez-Salicrup, there are more significant differences. In
Fernandez-Salicrup, the then-Governor of Puerto Rico, Luis Fortuño, attended an
event at a housing project across from a school. 790 F.3d at 315. A number of
students objected to the Governor’s presence, and to protest, they “threw objects such
as eggs, rocks, and tree branches at the PRPD (Puerto Rico Police Department)
officers guarding the event and at cars passing through the street.” Id. at 315–16. In
response, Luis Díaz-Portalatin, the PRPD Canóvanas District Commander, ordered
the police to enter the school, quiet the situation, and arrest those responsible for
throwing objects. Id. at 316. One of the Defendants, Ginnette Rosado, was one of the
police officers who responded to District Commander Díaz’s order. Id. As Officer
Rosado and the other officers entered the school, the situation “turned chaotic.” Id.
All the protesting students, throwers and not, ran to the school, and Valerie
Fernández-Ramos—who was protesting but not throwing—ran too.

Id.

As she

entered a hallway, Ms. Fernández closed the gate behind her and remained nearby.
Id. As Officer Rosado approached the closed gate, she asked Ms. Fernández to open
it, and Ms. Fernández immediately complied. Id.

45

When Officer Rosado entered, she spoke to Ms. Fernández “in a rough manner”
and pushed her aside. Id. Ms. Fernández was not happy at being rudely treated, and
she told Officer Rosado not to talk to her that way. Id. Officer Rosado told Ms.
Fernández that she could speak to her any way she liked, whereby Ms. Fernández
again expressed her displeasure. Id. At this point, Officer Rosado “shoved” Ms.
Fernández face-first against wall and placed a handcuff on her left wrist.36 Id.
The First Circuit said that Officer Rosado arrested Ms. Fernández for
obstructing government administration and/or disorderly conduct and it conceded
that neither is “a severe crime.” Id. at 326–27. The First Circuit also acknowledged
that Ms. Fernández never posed an immediate threat to Officer Rosado or others. Id.
at 327. Accordingly, “only a minimal level of force by Rosado would be reasonable
under the circumstances.” Id. Noting that Officer Rosado shoved Ms. Frenández
face-first against a wall and proceeded to handcuff her, the Fernández-Salicrup Court
stated that there was “no evidence that this technique deviated from standard police
practice.” Id.
Like the offenses in Fernández-Salicrup, whatever Officer Abbott was
arresting Mr. Long for in the present case, it was “not a severe crime.” Id. at 327.
Moreover, no evidence indicates that Mr. Long posed an immediate threat to the
officer or others. Thus, like Fernández-Salicrup, Officer Abbott was entitled to use
“only a minimal level of force” in effecting Mr. Long’s arrest. Id. Unlike Fernández-

The First Circuit opinion goes on to describe Ms. Fernández slipping through the nearby gate
and escaping, which is where the factual similarities with Mr. Long’s case end. Fernández-Salicrup,
790 F.3d at 316.
36

46

Salicrup, however, there were no surrounding circumstances that would have
justified Officer Abbott’s push.

The scene was not chaotic, no items—some

dangerous—had been thrown at the Governor, and Mr. Long was not surrounded by
a group of fellow students. Here, Officer Abbott ordered Mr. Long to stand up, turn
around, and put his hands behind his back, and as Mr. Long was complying with
Officer Abbott’s order, Officer Abbott shoved him from behind with enough force to
cause Mr. Long to land face-first on the stairs. In contrast with Fernández-Salilcrup,
here, there is no indication that Officer Abbott’s shove complied with any standard
police technique. In fact, the Defendants offer no explanation for why Officer Abbott
found it necessary to shove Mr. Long face-first onto the stairs. There is no evidence
on this record that Officer Abbott’s shove was necessary to effect the arrest since Mr.
Long was attempting to comply with Officer Abbott’s order when Officer Abbott
shoved him.
The record allows the inference that Officer Abbott simply lost his temper with
Mr. Long. When Mr. Long first refused to produce identification, Officer Abbott
stated, “Oh, we got a wise guy here.” He then swore at Mr. Long: “Let’s see some
fucking ID or you’re going to fucking jail.” When Mr. Long protested Officer Abbott’s
decorum and language and questioned why he was going to jail, Officer Abbott replied
“for not providing ID.”

When Mr. Long continued to refuse to produce his

identification and told Officer Abbott that he was going to videotape the encounter, it
was then that Officer Abbott ordered Mr. Long to stand up and, when he did, shoved
him down.

47

Although Fontana v. Haskin, 262 F.3d 871 (9th Cir. 2001), is not a First Circuit
case, it states a common sense legal principle that the First Circuit would likely
endorse: “Gratuitous and completely unnecessary acts of violence by the police during
a seizure violate the Fourth Amendment.” Id. at 880.

Accord Zucker v. City of

Farmington Hills, 643 Fed. Appx. 555, 568 (6th Cir. 2016) (“[A] totally gratuitous
blow with a policeman’s nightstick may cross the constitutional line”); Burbank v.
Davis, 227 F. Supp. 2d 176, 187 (D. Me. 2002). It is true that the record suggests that
Officer Abbott’s shove did not cause permanent or even significant injuries to Mr.
Long. However, as the First Circuit has written, “liability may be imposed for the
use of excessive force even in the absence of a serious injury.” Bastien v. Goddard,
279 F.3d 10, 14 (1st Cir. 2002).
Accepting Mr. Long’s version of the events, Officer Abbott has offered no
justification for shoving Mr. Long onto the steps in these circumstances, and the
Court can conceive of none. Therefore, the Court will not grant summary judgment
in favor of Officer Abbott on the excessive force claim.
B.

Count II: Supervisory Liability Against Chief Sauschuck

In Count II, Mr. Long asserts a 42 U.S.C. § 1983 claim against Chief Sauschuck
premised on a theory of supervisory liability. Fourth Am. Compl. ¶¶ 55–68. It is
settled law that “[g]overnment officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior[.]” Sanchez v.
Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009)). Rather, supervisory officials may only be held liable “if the plaintiff

48

can establish that her constitutional injury resulted from the direct acts or omissions
of the official, or from indirect conduct that amounts to condonation or tacit
authorization.” Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756 (1st Cir. 2010)
(citing Rodriguez-Garcia v. Municipality of Caguas, 495 F.3d 1, 10 (1st Cir. 2007)).
In other words, supervisory liability in the context of § 1983 actions “typically arises
in one of two ways: either the supervisor may be a ‘primary violator or direct
participant in the rights-violating incident,’ or liability may attach ‘if a responsible
official supervises, trains, or hires a subordinate with deliberate indifference toward
the possibility that deficient performance of the task eventually may contribute to a
civil rights deprivation.’” Sanchez, 590 F.3d at 49 (quoting Camilo-Robles v. Zapata,
175 F.3d 34, 44 (1st Cir. 1999)).
To establish “deliberate indifference,” the plaintiff must “show (1) a grave risk
of harm, (2) the defendant’s actual or constructive knowledge of that risk, and (3) his
failure to take easily available measures to address the risk.” Ramirez-Lluveras v.
Rivera-Merced, 759 F.3d 10, 26 (1st Cir. 2014) (citing Figueroa-Torres v. ToldeoDavila, 232 F.3d 270, 279 (1st Cir. 2000)). This formulation “implies that deliberate
indifference alone does not equate with supervisory liability; a suitor also must show
causation.” Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (citing MaldonadoDenis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994)); see also GuadalupeBaez v. Pesquera, 819 F.3d 509 (1st Cir. 2016) (“Causation remains an essential
element, and the causal link between a supervisor’s conduct and the constitutional
violation must be solid”). “This causation requirement ‘contemplates proof that the

49

supervisor’s conduct led inexorably to the constitutional violation.’” Guadalupe-Baez,
819 F.3d at 515 (quoting Hegarty v. Somerset County, 53 F.3d 1367, 1380 (1st Cir.
1995)). “That is a difficult standard to meet but far from an impossible one: a plaintiff
may, for example, prove causation by showing inaction in the face of a ‘known history
of widespread abuse sufficient to alert a supervisor to ongoing violations.’”

Id.

(quoting Maldonado–Denis, 23 F.3d at 582). “‘[I]solated instances of unconstitutional
activity’ will not suffice.” Id. (quoting Maldonado–Denis, 23 F.3d at 582).
As an initial matter, Chief Sauschuck was not a “primary violator or direct
participant in the rights-violating incident.” See Sanchez, 590 F.3d at 49. The parties
agree that Chief Sauschuck was not present for the incident involving Mr. Long and
that he had no physical contact with Mr. Long on the evening of August 9, 2014.
DSMF ¶¶ 38, 40; PRDSMF ¶¶ 38, 40. Furthermore, the parties agree that Chief
Sauschuck was not involved in the decision whether to arrest Mr. Long, nor was he
involved in any of the searches of Mr. Long. DSMF ¶¶ 39, 41; PRDSMF ¶¶ 39, 41.
Moreover, the record does not support a finding that Chief Sauschuck
supervised, trained, or hired Officer Abbott “with deliberate indifference toward the
possibility that deficient performance of the task eventually may contribute to a civil
rights violation.” Sanchez, 590 F.3d at 49. The parties agree that the PPD maintains
policies with regard to arrests, searches, and the use of force. DSMF ¶ 56; PRDSMF
¶ 56. Officer Abbott received training regarding warrantless arrests, the use of force,
searches, and requesting identification. DSMF ¶¶ 60–63; PRDSMF ¶¶ 60, 62–63.
The Defendants assert that from the time of Chief Sauschuck’s employment in 2012

50

through the events on August 9, 2014, he was not aware of any pattern or practice of
Officer Abbott or other Portland police officers arresting individuals without probable
cause or using excessive force to effect arrests. DSMF ¶¶ 48, 51–52, 55, 58. Similarly,
Chief Sauschuck maintains that he was not aware of any pattern or practice of Officer
Abbott or other Portland police officers requesting identification or searching
individuals without a proper justification. DSMF ¶¶ 49–50, 53–54, 58.
Mr. Long cites no record evidence to rebut Chief Sauschuck’s assertions.
Rather, in his response statement of facts, Mr. Long argues that “[t]he only way for
Chief Sauschuck to be and remain unaware of any pattern or practice [of the PPD or
Officer Abbott] would be for him to turn a blind eye to it[.]” PRDSMF ¶¶ 48–55, 58.
Furthermore, Mr. Long insists that Chief Sauschuck failed to adequately consider
whether Officer Abbott violated Mr. Long’s constitutional rights, “despite repeated
invitations to do so at his deposition.” Pl.’s Resp. at 8; PRDSMF ¶¶ 47–55, 58.
According to Mr. Long, this “underscores a deliberately indifferent attitude toward
the conduct of his officers and the rights of persons who come into contact with his
officers.” PRDSMF ¶¶ 48–55, 58.
Even looking past Mr. Long’s failure to comply with Local Rule 56, which
requires parties to “support each denial or qualification by a record citation as
required by this rule,” D. ME. LOC. R. 56(c), Mr. Long’s argument fails on the merits.
The record does not support Mr. Long’s view that Chief Sauschuck failed to
adequately consider whether Officer Abbott violated Mr. Long’s constitutional rights.
The facts indicate that on December 4, 2014, Mr. Long sent a letter entitled

51

“Complaint of Officer and Department Conduct” along with a statement of facts to
Lieutenant Robert Martin of the Internal Affairs Division of the PPD. Long Letter at
31. Neither the letter nor the statement of facts specifically mentioned probable
cause, excessive force, an illegal search, or an improper request for identification. Id.
at 31–33. The officer who investigated Mr. Long’s complaint determined that Mr.
Long intended to allege that Officer Abbott used excessive force and profane and
unprofessional language. On July 28, 2015, Chief Sauschuck reviewed the results of
the investigation and concluded that these allegations were not sustained. Id. at 28–
29; DSMF ¶ 46; PRDSMF ¶ 46. When pressed during his deposition why he did not
investigate whether Officer Abbott had probable cause to arrest Mr. Long, Chief
Sauschuck repeatedly and consistently explained that the District Attorney’s office
previously determined that Officer Abbott had probable cause for an arrest and that
the investigation was based only on Officer Abbott’s alleged use of force and improper
language. See Sauschuck Dep. 13:12–14:17; 16:16–18; 17:7–10; 17:23–18:3; 18:15–
20; 19:3–7.
To summarize, the PPD maintains policies with regard to arrests, searches,
and the use of force, and Chief Sauschuck was not aware of any pattern or practice
among his officers that contravened these policies. Officer Abbott received training
regarding warrantless arrests, the use of force, searches, and requesting
identification.

In this case, Chief Sauschuck relied on the District Attorney’s

determination that Officer Abbott had probable cause to arrest Mr. Long and
reviewed the results of an internal investigation regarding Officer Abbott’s alleged

52

use of excessive force and profane language. Taken together, these facts do not
indicate deliberate indifference on the part of Chief Sauschuck. Specifically, they do
not show “(1) a grave risk of harm, (2) [Chief Sauschuck’s] actual or constructive
knowledge of that risk, and (3) his failure to take easily available measures to address
the risk.” Ramirez-Lluveras, 759 F.3d at 26.
Furthermore, the facts do not establish a causal link between a supervisor’s
conduct and the constitutional violation. Mr. Long has not shown “inaction in the
face of a ‘known history of widespread abuse sufficient to alert a supervisor to ongoing
violations.’” Guadalupe-Baez, 819 F.3d at 515 (quoting Maldonado–Denis, 23 F.3d at
582)).

At most, Mr. Long has potentially identified an “isolated instance[] of

unconstitutional activity.” Id. Although any alleged unconstitutional activity in his
department should trouble Chief Sauschuck, an isolated instance is insufficient to
establish supervisory liability.

Id. (quoting Maldonado–Denis, 23 F.3d at 582).

Accordingly, the Court concludes that Chief Sauschuck is entitled to summary
judgment on Mr. Long’s claim of supervisory liability in Count II.
C.

Count III: Municipal Liability Against the City of Portland

In Count III, Mr. Long asserts a claim of municipal liability against the City of
Portland.

Fourth Am. Compl. ¶¶69–77.

Like supervisory liability, “municipal

liability is not vicarious.” Estate of Bennett v. Wainwright, 548 F.3d 155 (1st Cir.
2008); see also Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 209 (1st
Cir. 1990). In order to succeed on a claim of municipal liability, a plaintiff must show
(1) that the municipality adopted a policy or custom that evidenced a “deliberate

53

indifference” to the constitutional rights of its inhabitants, and (2) that this policy or
custom was the cause of, and moving force behind, the plaintiff’s alleged
constitutional injury.

See Rodriguez-Garcia, 610 F.3d at 769 (quoting Welch v.

Ciampa, 542 F.3d 927, 941 (1st Cir. 2008)); Young v. City of Providence ex rel.
Napolitano, 404 F.3d 4, 26 (1st Cir. 2005); Foley v. City of Lowell, Mass., 948 F.2d 10,
14 (1st Cir. 1991). As discussed previously, to establish “deliberate indifference,” a
plaintiff must “show (1) a grave risk of harm, (2) the defendant’s actual or
constructive knowledge of that risk, and (3) his failure to take easily available
measures to address the risk.” Ramirez-Lluveras, 759 F.3d at 26 (citing FigueroaTorres, 232 F.3d at 279); see also Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.
1989) (holding that a municipal custom or practice “must be so well settled and
widespread that the policymaking officials of the municipality can be said to have
either actual or constructive knowledge of it yet did nothing to end the practice”).
Mr. Long’s perfunctory argument regarding municipal liability cites no
caselaw and largely parrots the language of the legal standards set forth above. Pl.’s
Resp. at 10. Essentially, Mr. Long repeats his claim that Chief Sauschuck refused to
evaluate whether Officer Abbott violated Mr. Long’s constitutional rights, either
during his deposition or in response to Mr. Long’s December 4, 2014 letter to Internal
Affairs. Id. at 8–10. To Mr. Long, this signals “a policy of abdication and ignorance
of the law” and “underscore[s] a policy-maker who is deliberately indifferent to the
constitutional rights of people his officers deal with on a daily basis.” Id. at 9–10.
Mr. Long concludes that Chief Sauschuck’s “deliberate indifference” was the moving

54

force behind the constitutional violation in this case because patrol officers cannot be
expected to understand constitutional requirements “if the people at the very top of
the chain of command do not.” Id. at 9.
The Court has already rejected Mr. Long’s claim that Chief Sauschuck failed
to adequately evaluate whether Officer Abbott violated Mr. Long’s constitutional
rights.

See Section IV.C.

Mr. Long offers no additional facts that suggest the

existence of a municipal policy or custom of deliberate indifference that caused the
alleged constitutional violation. He presents no evidence of a grave risk of harm, the
municipality’s actual or constructive knowledge of that grave risk, or the
municipality’s failure to take easily available measures to address the risk. In short,
Mr. Long has failed to provide a sufficient evidentiary basis to support a finding of
municipal liability, and the Court therefore concludes that the City of Portland is
entitled to summary judgment on Count III.
D.

Qualified Immunity

“[Q]ualified immunity shields government officials ‘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.’” Matalon v.
Hynnes, 806 F.3d 627, 632–33 (1st Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “Even law enforcement officials who ‘reasonably but mistakenly
conclude that probable cause is present’ are entitled to immunity.” Hunter v. Bryant,
502 U.S. 224, 227 (1991) (quoting Anderson v. Creighton, 483 U.S. 635 (1987)). In
other words, the doctrine protects “all but the plainly incompetent or those who

55

knowingly violate the law.” Alfano v. Lynch, No. 16-1914, 2017 U.S. App. LEXIS
1794, at *4 (1st Cir. Feb. 1, 2017) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
The qualified immunity analysis proceeds in two steps. Alfano, 2017 U.S. App.
LEXIS 1794, at *5. First, the Court must determine whether the plaintiff’s version
of the facts makes out a violation of a protected right. Id. Second, the Court must
determine “whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Id. (quoting Matalon, 806 F.3d at 633). The “clearly
established” analysis consists of two sub-parts. Id. (citing MacDonald v. Town of
Eastham, 745 F.3d 8, 12 (1st Cir. 2014)). The first sub-part requires the plaintiff “to
identify either ‘controlling authority’ or a ‘consensus of cases of persuasive authority’
sufficient to send a clear signal to a reasonable officer that certain conduct falls short
of the constitutional norm.” Id. at *5–6 (quoting Wilson v. Layne, 526 U.S. 603, 617
(1999)). The second sub-part asks “whether an objectively reasonable official in the
defendant’s position would have known that his conduct violated that rule of law.”
Id. at 6; see also Mihos v. Swift, 358 F.3d 91, 102 (1st Cir. 2004).
Because the Court has already determined that Chief Sauschuck is entitled to
summary judgment on the merits, the Court limits its qualified immunity analysis to
Officer Abbott. In this case, the Court has concluded that Officer Abbott is not
entitled to summary judgment on the alleged wrongful arrest, unlawful search, and
excessive use of force. A reasonable jury could find that Officer Abbott did not have
probable cause to believe that Mr. Long was drinking in public or loitering and that
Officer Abbott therefore did not have probable cause to search or arrest Mr. Long for

56

failing to provide identification. Likewise, a reasonable jury could find that Officer
Abbott’s use of force was unreasonable under all the circumstances. The Court
therefore concludes that Mr. Long’s version of the facts makes out a violation of Mr.
Long’s protected rights.
The second step of the analysis also favors of Mr. Long. With respect to the
first sub-part, the Court determines that there is a clearly established and long-held
right to be free from unreasonable searches or seizures without probable cause and
the excessive use of force. See Beck v. Ohio, 379 U.S. 89 (1964); Alfano, 2017 U.S.
App. LEXIS 1794, at *8 (“It is hornbook law that the Fourth Amendment requires
probable cause to place an individual under arrest”); Morelli, 552 F.3d at 23 (“Our
case law supplies a crystal clear articulation of the right, grounded in the Fourth
Amendment, to be free from the use of excessive force by an arresting officer). The
second sub-part is a closer call. The Court must determine “whether a similarly
situated reasonable official would have understood that the challenged action
violated the constitutional right at issue.” Mihos, 358 F.3d at 102. That is, the Court
must determine whether a reasonable official would have known that searching,
arresting, and shoving Mr. Long under the circumstances of this case violated his
Fourth Amendment rights.
1.

Probable Cause to Arrest and Search

The Defendants point out that Mr. Long was seated near an open can of beer
in a location where males were reported to be drinking in public and that Mr. Long
refused to provide the officers with his name and date of birth. Defs.’ Mot. at 16.

57

Accordingly, the Defendants contend that “[i]t is at least arguable…that Officer
Abbott had probable cause for an arrest [for failure to provide identification] and that
he was therefore justified in removing Mr. Long’s wallet[.]” Id. The problem with
this argument is that it assumes that a reasonable officer would understand that Mr.
Long’s mere proximity to an open beer can provided probable cause to believe Mr.
Long was drinking in public. Yet the public drinking statute is clear: a person is
guilty of drinking in public if the person drinks alcohol either (1) within 200 feet of a
sign prohibiting drinking or (2) after being forbidden to do so personally by law
enforcement. 17 M.R.S. § 2003-A(2). A reasonable officer should therefore know that
proximity to an alcoholic container, by itself, is insufficient to arrest an individual for
public drinking. See Harlow, 457 U.S. at 819 (“[A] reasonably competent public
official should know the law governing his conduct”).
There is no contention in this case that law enforcement officials previously
forbade Mr. Long from drinking in public. Hence, the focus of the Court’s inquiry
must be whether a reasonable officer in Officer Abbott’s position could believe that
Mr. Long was drinking in public within 200 feet of a sign prohibiting drinking. As
the Court discussed above, the existing record simply does not provide the Court with
the ability to assess whether it was reasonable to believe there was a sign within 200
feet of 24 Preble Street. Again, it may well be that a jury could conclude that a
reasonable law enforcement official in Officer Abbott’s position would have known
that there was no sign within 200 feet. In that case, any reasonable official would
have understood that arresting and searching Mr. Long would violate his Fourth

58

Amendment rights. Accordingly, the Court concludes that qualified immunity does
not shield Officer Abbott from liability based on the offense of drinking in public.
The Defendants argue that Officer Abbott had probable cause to search and
arrest Mr. Long not only because he was drinking in public, but also because he was
loitering in violation of a Portland ordinance. Defs.’ Mot. at 6. The Defendants do not
mention loitering in their discussion of qualified immunity. Nevertheless, the Court
concludes that a reasonable official in Officer Abbott’s position would have
understood that arresting and searching Mr. Long based on the crime of loitering
violated his Fourth Amendment rights. Portland’s loitering clearly establishes that
an individual is guilty of loitering when that person loiters in a manner set forth in
the ordinance and refuses to obey an officer’s directive “to move on or disperse.” City
of Portland, Me., Code of Ordinances § 17-1(c). Hence, a reasonably competent official
should know that the offense of loitering requires the official to first order the
individual to vacate the area. The record in this case clearly indicates that Officer
Abbott never directed Mr. Long “to move on or disperse” before arresting him.
Because a similarly situated reasonable official would have understood that arresting
and searching Mr. Long based on the offense of loitering violated the constitutional
right at issue, qualified immunity does not shield Officer Abbott from liability.
Accordingly, Mr. Long’s wrongful arrest and illegal search claims may proceed
against Officer Abbott.
2.

Excessive Force

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Analyzing an excessive force claim under the rubric of qualified immunity can
be challenging because “[b]y definition, excessive force is unreasonable force.”
Morelli, 552 F.3d at 24. Yet as the First Circuit has acknowledged, “reasonable people
sometimes make mistaken judgments, and a reasonable officer sometimes may use
unreasonable force.” Id. Qualified immunity thus serves to give “an officer the
benefit of a margin of error.” Id. The First Circuit has clarified that “qualified
immunity is appropriate in an excessive force case when an officer ‘correctly
perceive[s] all of the relevant facts but [has] a mistaken understanding’ as to the
legality of his chosen level of force.” Id. By contrast, “qualified immunity protection
would not be available when the level of force chosen by the officer cannot in any way,
shape, or form be justified under those facts.” Id.
Viewing the facts in the light most favorable to Mr. Long, the Court concludes
that Officer Abbott’s conduct in this case falls “outside the universe of protected
mistakes.” Id. Officer Abbott suspected Mr. Long of drinking in public and loitering
and arrested him on a relatively routine charge of failing to provide identification.
Mr. Long was not resisting arrest, and there is no evidence that Officer Abbott
believed Mr. Long was dangerous or posed a flight risk. A rational jury could find
that shoving a restrained, compliant individual face first onto the stairs in these
circumstances “eclipsed the bounds of reasonableness.” Id. at 25. As such, the Court
refuses to order summary judgment on Mr. Long’s excessive force claim on the basis
of qualified immunity.
E.

Count IV (Assault) and Count V (Unlawful Arrest)

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In Counts IV and V, Mr. Long accuses Officer Abbott of assault and unlawful
arrest, respectively. Both causes of action arise under Maine statutory law. Fourth
Am. Compl. ¶¶ 78–85. The MTCA requires that a claimant against a governmental
entity file a written notice of claim within 180 days after the cause of action accrues.
14 M.R.S. § 8107(1). The general purpose of the notice requirement is to “enable the
governmental entity to investigate and evaluate claims for purposes of defense or
settlement.” Pepperman v. Barrett, 661 A.2d 1124, 1126 (Me. 1995). Notice of claims
against an employee of a “political subdivision” must be addressed to “one of the
persons upon whom a summons and complaint could be served under the Maine Rules
of Civil Procedure, Rule 4.” 14 M.R.S. § 8107(3). This notice must include:
A. The name and address of the claimant, and the name
and address of the claimant’s attorney or other
representative, if any;
B. A concise statement of the basis of the claim, including
the date, time, place and circumstances of the act,
omission or occurrence complained of;
C. The name and address of any governmental employee
involved, if known;
D. A concise statement of the nature and extent of the
injury claimed to have been suffered; and
E. A statement of the amount of monetary damages
claimed.
14 M.R.S. § 8107(1).
In this case, Mr. Long’s tort claims arose at the time of his arrest on August 9,
2014. To comply with the MTCA’s 180-day deadline, Mr. Long needed to file a written
notice of his claim on or before February 5, 2015. Yet Mr. Long did not meet with
Attorney Waxman until February 18, 2015, and it was not until February 20, 2015—
fifteen days after the expiration of the notice deadline—that Attorney Waxman
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mailed a letter to the PPD entitled “Notice of Claim Under 14 M.R.S.A. § 8107 and
14 M.R.S.A. § 1503.” Mr. Long does not assert any good cause as to why he could not
have filed the notice letter within the 180-day statutory limit. Nor would there have
been a basis for such a claim. See Porter v. Philbrick-Gates, 2000 ME 35, ¶ 4, 745
A.2d 996 (interpreting “‘good cause’ to require a showing that the plaintiff was unable
to file a claim or was meaningfully prevented from learning of the information
forming the basis for his or her complaint”); Witham v. Androscoggin Cty. Sheriff’s
Office, No. 2:12-cv-00078-JAW, 2012 U.S. Dist. LEXIS 156844, at *20 (D. Me. Jul. 12,
2012).

Indeed, the Maine Supreme Judicial Court has written that it has

“interpreted the MTCA good cause exception narrowly, because . . . the MTCA is a
statute in derogation of the common law.” Beaulieu v. Aube Corp., 2002 ME 79, ¶ 19,
796 A.2d 683. The Court concludes that Mr. Long’s February 20, 2015 letter to the
PPD failed to provide timely notice as required by the MTCA.
Mr. Long argues, however, that his December 4, 2014 letter to the PPD
constituted “substantial compliance” with the MTCA and fell within the 180-day
statutory deadline. Pl.’s Resp. at 12. On December 4, 2014, Mr. Long sent a letter
addressed to Lieutenant Robert Martin, Internal Affairs, Portland Police
Department. Long Letter at 31. The letter contains the following caption:
COMPLAINT OF OFFICER AND DEPARTMENT CONDUCT
Id. at 31. It reads:
Enclosed, please find my statement of fact in connection with my arrest of
August 9, 2014, which I am submitting as a formal complaint against the
arresting officer and against those individuals who may be either directly or
indirectly involved in this matter.
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Id.

Attached to the December 4, 2014 letter was Mr. Long’s eleven-paragraph

description of the events leading to his arrest, largely consistent with the statement
of facts set forth above. Long Statement. at 32–33.
The question is whether Mr. Long’s December 4, 2014 letter to the PPD
substantially complied with the notice provision of section 8107(1).

The Court

concludes it does not. Mr. Long is correct that the MTCA requires substantial, not
perfect, notice compliance:
No claim or action shall be commenced against a governmental entity or
employee in the Superior Court unless the foregoing notice provisions
are substantially complied with. A claim filed under this section shall
not be held invalid or insufficient by reason of an inaccuracy in stating
the time, place, nature or cause of the claim, or otherwise, unless it is
shown that the governmental entity was in fact prejudiced thereby.
14 M.R.S. § 8107(4); see also Steeves v. City of Rockland, 600 F. Supp. 2d 143, 181–82
(D. Me. 2009). “The substantial compliance exception is properly invoked only when
the notice, although timely filed or excused from timely filing because of good cause,
is defective in some other respect such as the failure to satisfy the form requirements
of § 8017(1)(A)–(E).” Palm v. Sisters of Charity Health, Sys., 537 F. Supp. 2d 228, 231
(D. Me. 2008) (quoting Erickson v. State, 444 A.2d 345, 350 (Me. 1982)). The issue
narrows to whether Mr. Long’s December 4, 2014 letter includes mere “inaccuracies”
of form, or whether the failures are “fundamental.” Id. (citing Faucher v. City of
Auburn, 465 A.2d 1120 (Me. 1983)).
The “substantial compliance” determination is fact intensive. See id. The
Maine Law Court has had several opportunities to consider different factual

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scenarios. In general, where a plaintiff sends notice to an incorrect recipient and the
notice contains other significant imperfections, the Law Court has not allowed the
claims to stand. See, e.g., Pepperman, 661 A.2d at 1126 (Me. 1995) (holding that a
letter did not substantially comply with the MTCA’s notice requirement because the
letter was not addressed to the appropriate agency, did not contain a “hint of the
property damage or emotional distress” alleged by the plaintiff, and did not mention
any monetary damages); Hall v. Kittery, 556 A.2d 662 (Me. 1989) (holding that the
plaintiff failed to satisfy the notice requirement because the plaintiff did not serve
the notice on a proper town official and because the notice did not include the amount
of monetary damages claimed); see also McCarthy v. Inhabitants of Town of
Kennebunkport, 366 F. Supp. 2d 165, 168 (D. Me. 2005) (holding that a letter did not
constitute substantial compliance because the plaintiff failed to give notice to a
designated person under the MTCA and because it did not “include a concise
statement of the nature and extent of [the plaintiff’s] injury); cf. Robinson v.
Washington County, 529 A.2d 1357 (Me. 1987) (holding that a notice that was
sufficient in all other respects substantially complied with the MTCA even though
the plaintiff served the real party in interest and not a person designated under the
MTCA).
Based on this caselaw, the Court concludes that Mr. Long’s December 4, 2014
letter does not constitute substantial compliance. First, Mr. Long failed to send the
letter to an appropriate person under the MTCA. As Officer Abbott was an employee
of the city of Portland, the MTCA required Mr. Long to file notice with a person “upon

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whom a summons and complaint could be served under the Maine Rules of Civil
Procedure, Rule 4, in a civil against [the city of Portland].” 14 M.R.S. § 8107(3)(B).
Consequently, Mr. Long needed to file notice with the clerk, treasurer, or manager of
the city of Portland. See ME. R. CIV. P. 4(d)(6) (“Personal service within the state
shall be made as follows: (6) Upon a city, by delivering a copy of the summons and of
the complaint to the clerk, treasurer, or manager”).
Mr. Long addressed his letter to Lieutenant Martin of the Internal Affairs
Division of the PPD, and there is no evidence in the record that Lieutenant Martin
also served as a city clerk, treasurer, or manager or was otherwise authorized to
receive service of process on behalf of the city of Portland. In Faucher v. City of
Auburn, 465 A.2d 1120 (Me. 1983), the Maine Law Court cited Maine Rule of Civil
Procedure 4(d)(6) in rejecting a notice that a minor’s mother had given to a teacher
and to a school principal; the Faucher Court explained that the purpose of the
requirement that notice is given to a proper Rule 4(d)(6) recipient is “to assure that
the notice will be received by an official having authority to deal with plaintiff’s claim
or that the official receiving notice is one charged with the duty of transmitting the
notice to the proper officials.” Id. at 1123. Here, as in Faucher, notice to someone
other than the Rule 4(d)(6) personnel was “clearly not in compliance with the statute.”
Id.
Even so, Robinson makes clear that sending notice to an incorrect recipient
does not, by itself, bar a plaintiff’s claims under the MTCA. However, the letter
suffers from additional deficiencies.

For instance, the letter does not include a

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statement of the amount of monetary damages claimed. 14 M.R.S. § 8107(1)(E). In
this way, the case closely resembles Hall, where the Law Court held that the
plaintiffs did not meet the MTCA’s notice requirement because they did not serve
notice on the proper official and because the notice did not include the amount of
monetary damages claimed. 556 A.2d at 663–64.
Additionally, although Mr. Long’s letter describes the “date, time, place and
circumstances” of the events of August 9, 2014, 14 M.R.S. § 8107(1)(B), the letter
never provides a “concise statement of the nature and extent of the injury claimed to
have been suffered.” Nowhere does the letter refer to an “assault,” “unlawful arrest,”
or “claim,” nor does it “purport[] to notify [Officer Abbott] of [Mr. Long’s] intention to
bring a civil action” again him. See Hall, 556 A.2d at 663–664 (quoting Robinson, 529
A.2d at 1360) (alteration added). Indeed, Mr. Long does not mention any injuries or
damages he sustained as a result of the incident. Long Statement at 32–33. Rather,
it strikes the Court that Mr. Long intended the letter as way to notify the Internal
Affairs officer of the PPD of what he perceived as Officer Abbott’s unprofessional
conduct so that Lieutenant Martin could perform an internal investigation of Officer
Abbott’s conduct. The fact that Mr. Long addressed the letter to “Internal Affairs”
and entitled his letter “Complaint of Officer and Department Conduct” supports the
Court’s interpretation.
It is also telling to contrast Mr. Long’s December 4, 2014 letter with the “Notice
of Claim” that Attorney Waxman mailed on February 20, 2015—fifteen days after the
180-day deadline. Like the December 4, 2014 letter, the Notice of Claim includes the

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name and address of the claimant, as well as a statement of the circumstances of the
case. However, the Notice of Claim additionally includes the name of Mr. Long’s
attorney, the name of the governmental employee involved in the case, a description
of the nature and extent of the injuries, and an explanation that the monetary
damages were not yet discernable. In addition, the Notice of Claim explicitly states
that it is intended to “give [the Defendants] an understanding of the claims that Mr.
Long intends to bring,” Pl.’s Resp. to Req. for Prod. at 8, and mentions wrongful arrest,
bodily injury, emotional distress, and violations of Mr. Long’s civil rights. Id. at 9.
In short, the February 20, 2015 Notice of Claim complies with the strictures of
the MTCA; the December 4, 2014 letter does not. Again, the general purpose of the
notice requirement is to “enable the governmental entity to investigate and evaluate
claims for purposes of defense or settlement.” Pepperman, 661 A.2d at 1126. The
shortcomings of December 4, 2014 letter with respect to the MTCA make it difficult
for a recipient to understand that a claim is forthcoming, much less to investigate
and evaluate a potential lawsuit as opposed to a request for an internal investigation.
In fact, the officer investigating Mr. Long’s complaint to Internal Affairs concluded
from the letter that Mr. Long was concerned with Officer Abbott’s use of profane
language and excessive force, not—as the later Notice of Claim and civil complaint
made clear—“wrongful arrest,” “emotional distress,” “bodily injury,” “assault,” or
other civil rights violations. The Court concludes that neither Mr. Long’s December
4, 2014 letter, nor his belated February 20, 2015 Notice of Claim, complied with the
MTCA, and Mr. Long’s state law claims of assault and unlawful arrest are barred.

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VI.

CONCLUSION
The Court GRANTS summary judgment to Chief Michael Sauschuck and the

City of Portland as to Counts II and III and to Officer Brent Abbott as to Counts IV
and V. The Court DENIES summary judgment as to Count I of the Defendants’
Motion for Summary Judgment (ECF No. 30).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 1st day of March, 2017

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