MARCH v. MILLS et al

Filing 180

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT - granting 162 Motion for Summary Judgment; granting 163 Motion for Summary Judgment; denying 165 Motion for Summary Judgment. By JUDGE NANCY TORRESEN. (mnd)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANDREW MARCH,
Plaintiff,
v.
AARON M. FREY, et al.,
Defendants.

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) Docket No. 2:15-cv-515-NT
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Andrew March is a protester who opposes abortion. He alleges that a
provision of the Maine Civil Rights Act has been applied unconstitutionally against
him, in violation of his First and Fourteenth Amendment rights. Before me are
motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 from
Defendant Aaron Frey (the “Attorney General”) (ECF No. 162) and Defendant City
of Portland (“Portland” or “the City”) (ECF No. 163), and a motion for partial
summary judgment from Mr. March against the City (ECF No. 165). For the reasons
set out below, the Attorney General’s motion and the City’s motion are GRANTED,
and Mr. March’s motion is DENIED.

BACKGROUND
I.

Factual Background 1
A.

Increasing Noise Complaints
Department Response

and

the

Portland

Police

Planned Parenthood operates a facility at 443 Congress Street in Portland,
Maine (the “Health Center”), where it provides counseling and health care services,
Because I ultimately conclude that the Defendants prevail on their motions and the Plaintiff
does not prevail on his, the following background is drawn from the undisputed facts set out in the
parties’ statements of facts, the disputed facts reasonably resolved in the Plaintiff’s favor, and the
exhibits contained in the Joint Stipulated Record. I rely heavily on the numerous videotapes of Mr.
March’s encounters with the police rather than the parties’ characterization of those tapes. See
Mitchell v. Miller, 56 F. Supp. 3d 57, 58 n.1 (D. Me. 2014) (citing Scott v. Harris, 550 U.S. 372, 380–81
(2007)) (inferences that can reasonably be drawn in a non-moving party’s favor can be limited by
existence of video evidence).
For the universe of facts, see Plaintiff’s Statement of Material Facts in Response to Defendant
Attorney General Aaron M. Frey’s Motion for Summary Judgment (ECF No. 170) (containing all facts
in support of Attorney General’s motion for summary judgment and Plaintiff’s responses thereto)
(“AG’s Mot. Facts”); Plaintiff’s Statement of Material Facts in Response to Defendant City of
Portland’s Statement of Material Facts in Support of its Motion for Summary Judgment (ECF No. 172)
(containing all facts in support of City’s motion for summary judgment and Plaintiff’s responses
thereto) (“City’s Mot. Facts”); Defendant City of Portland’s Response to Plaintiff’s Statement of
Material Facts and Defendant City of Portland’s Statement of Additional Facts and Plaintiff’s
Statement of Additional Material Facts in Reply to Defendant City of Portland’s Opposing Statement
of Material Facts (ECF Nos. 175 and 179) (containing all facts in support of Plaintiff’s motion for
summary judgment, additional facts provided by City, and all responses thereto) (collectively “Pl.’s
Mot. Facts”); and the Joint Stipulated Record (ECF No. 148) (“JSR”).
In accordance with Local Rule 56, all properly supported statements of fact to which there is
not a properly supported denial or qualification are deemed admitted. D. Me. Loc. R. 56(b)–(f). In many
instances, the Plaintiff has attempted to qualify the Defendants’ facts by repeating “Plaintiff does not
have any evidence to dispute the assertion contained in paragraph [x]; however, Plaintiff has never
been provided any evidence to corroborate this assertion and was not able to locate any such evidence
on his own.” See, e.g., City’s Mot. Facts ¶¶ 8–10, 17, 30, 31, 42, 44, 45, 48; see also AG’s Mot. Facts ¶¶
8–13, 15, 19, 20. These qualifications are ineffective. If the Plaintiff does not have evidence to dispute
a properly supported fact, then that fact is deemed admitted. See Mullen v. New Balance Athletics,
Inc., No. 1:17-cv-194-NT, 2019 WL 958370, at *1 n.1 (D. Me. Feb. 27, 2019) (plaintiff’s supported facts
are deemed admitted where defendant attempted to qualify facts by asserting that it had “no
knowledge” of the fact asserted).
Similarly, the Plaintiff repeats in many instances that he “is unable to answer paragraph [x]
pursuant to Local Rule 56(c) because it is not a statement of fact.” See, e.g., City’s Mot. Facts ¶¶ 7, 11–
14, 16, 20, 35, 39, 43, 46, 47, 49, 52. In each of these instances, the Defendant has set out a discrete
fact. Because the Plaintiff’s “cut and paste” response does not point to any dispute in the record or
contain any cogent argument, this factual assertion, and the other factual assertions to which Plaintiff
responded similarly, are deemed admitted.
Finally, the City asserted seventy-two facts to support its motion for summary judgment, and
it asserted those identical seventy-two facts as additional facts in response to the Plaintiff’s motion.
That would ordinarily not be a problem, but the Plaintiff’s responses differed for twenty-three of the
1

2

including abortions. Pl.’s Mot. Facts ¶¶ 12–13. The Health Center is located on the
second floor, and its windows overlook the sidewalk below. City’s Mot. Facts ¶¶ 41–
42; JSR Exs. 1, 6. 2 Congress Street is a busy street with lots of traffic and noise. Pl.’s
Mot. Facts ¶ 62. Monument Square, a public area that sometimes hosts events with
amplified noise, is located nearby, and the portion of Congress Street where the
Health Center is located sometimes sees parades and protests. Pl.’s Mot Facts ¶¶ 63–
66.
The Portland Police Department began receiving increased complaints around
February of 2013 about noise created by protesters outside of the Health Center. Pl.’s
Mot. Facts ¶ 14. On February 18, 2013, Portland Police Department Chief Michael
Sauschuck wrote a letter to his officers on the topic of sidewalk protests in front of
the Health Center, and he called their attention “to the Maine Civil Rights Act
prohibition against creating noise that can be heard within the building where health

seventy-two facts. For example, the Plaintiff admitted City’s Motion Facts ¶¶ 4, 6, 18, 19, 21, 22, 24,
32–34, 36–38, and 41, but when those identical facts were asserted as additional facts in response to
the Plaintiff’s motion, the Plaintiff either offered a qualification or claimed that the assertion was not
a fact. See Pl.’s Mot. Facts ¶¶ 74, 76, 88, 89, 91, 92, 94, 102–04, 106–08, and 111. Similarly, where the
Plaintiff stated that ¶¶ 7, 11, 14, 16, 43, 49, and 52 were not statements of fact in his response to the
City’s Motion Facts, he qualified those identical facts in Plaintiff Motion Facts ¶¶ 77, 81, 84, 86, 113,
119, and 122. Lastly, although the Plaintiff qualified ¶ 30 and denied ¶ 67 of the facts submitted in
support of the City’s motion, he admitted those same facts when they were submitted as additional
facts in response to his motion. See Pl.’s Mot. Facts ¶¶ 100, 137. While I am required to resolve facts
that the parties dispute in favor of the non-moving party, there is no such parallel rule when the
Plaintiff has contradicted himself. Thus, whenever the Plaintiff has somewhere admitted a fact
asserted by the City, I accept it as undisputed.
2
Exhibit 1 of the Joint Stipulated Record is a video of an individual (not the Plaintiff) who is
preaching up toward the windows of the Health Center. In it, the protester comments that he knows
that they can hear him and that he has seen them draw the curtain. Exhibit 6 of the Joint Stipulated
Record is a video of an exchange between Lt. Preis of the Portland Police Department and Mr. March.
The angle from which the video is taken shows the Health Center building in the background, and the
second-floor windows are visible. The videotapes show that the windows of the Health Center are
directly above the protesters.

3

services are being provided.” Pl.’s Mot. Facts ¶ 16. 3 Attached to the letter was a
document containing synopses of “[p]ossible criminal offenses,” including the state’s
disorderly conduct, harassment, and obstructing public ways laws, and “[p]ossible
civil offenses,” including the state’s civil disorderly conduct provision and the Maine
Civil Rights Act. JSR Ex. 19 at 4–6 (ECF No. 148-19). On July 28, 2015, an updated
version of Chief Sauschuck’s February 2013 letter and statute summary was
recirculated by Richard Bianculli, the Portland Police Department’s Neighborhood
Prosecutor. JSR Ex. 19 at 8–9. 4

3

The body of the letter states in full:
This letter addresses the ongoing protests taking place in front of 443 Congress Street.
The goal of the Portland Police Department is to ensure that pedestrians and workers
enjoy safe and unimpeded access to this building, while respecting the first amendment
rights of all citizens.
As you know, the Portland Police have been present at most of the protests, and have
consistently ensured adherence to state and local laws related to disorderly behaviors
and sidewalk obstruction. Please see the attached synopsis of those laws and
regulations.
In recent weeks we have received an increase in complaints regarding the noise created
by the protesters. Accordingly, I wish to draw your attention to the Maine Civil Rights
Act prohibition against creating noise that can be heard within the building where
health services are being provided (see page 2 of the attached list). Please understand
that any future violations of this law will be referred to the Attorney General’s office
for prosecution.
If you have any questions or would like to meet to discuss these issues, please feel free
to contact Trish McAllister, the Police Department’s Neighborhood Prosecutor, at 756****.

JSR Ex. 19 at 4–6 (ECF No. 148-19).
4
The recirculated letter by Chief Sauschuck was dated July 28, 2015, and contained the contact
information for Mr. Bianculli, but it was otherwise identical to Chief Sauschuck’s February 2013 letter.
In his cover email, Mr. Bianculli states:

Please note that it is a violation of the Maine Civil Rights Act
(http://legislature.maine.gov/statutes/5/title5sec4684-B.html) for protestors to protest
loudly to the point where their voices can be heard within the counseling rooms for
Planned Parenthood. If you are responding to this type of situation, a citation can be

4

The Maine Civil Rights Act (“MCRA”) was enacted in 1989. In broad strokes,
it authorizes suit by the Attorney General or any aggrieved person against any person
who, “whether or not acting under color of law, intentionally interferes or attempts
to intentionally interfere . . . with the exercise or enjoyment by any other person” of
rights secured by the United States or Maine Constitutions or federal or state laws.
5 M.R.S.A. §§ 4681–4682. In 1995, the Legislature enacted an amendment that made
it a violation of the MCRA to interfere or attempt to interfere with a person’s civil
rights by: (1) physically obstructing the entrance or exit of a building; (2) making
repeated telephone calls to disrupt activities in a building; (3) setting off any device
that releases “noxious and offensive odors” within a building; or (4) making noise that
can be heard within a building, after having been ordered by law enforcement to stop,
with the intent to interfere with the delivery of health services inside. 5 M.R.S.A.
§ 4684-B(2). Specifically, the MCRA’s noise provision prohibits an individual from,
[a]fter having been ordered by a law enforcement officer to cease such
noise, intentionally making noise that can be heard within a building
and with the further intent either:
(1) To jeopardize the health of persons receiving health services within
the building; or
(2) To interfere with the safe and effective delivery of those services
within the building.
5 M.R.S.A. § 4684-B(2)(D) (the “Noise Provision”).

issued if the individual refuses to follow your directive after a verbal warning. Please
feel free to contact me directly if you ever have any questions in regard to this issue.
JSR Ex. 19 at 8.

5

At times pertinent to this action, Planned Parenthood paid the City to have
Portland police officers work an overtime detail in front of the Health Center during
times when protesters were present. Pl.’s Mot. Facts ¶ 26; JSR Ex. 19 at 7. On July
9, 2014, Lt. Glen McGary of the Portland Police Department sent an email to the
“PPD Shift Log” regarding the expectations for officers participating in the “Planned
Parenthood Detail.” Pl.’s Mot. Facts ¶ 21. 5

5

The body of the email states:
PLANNED PARENTHOOD DETAIL
The outside detail at Planned Parenthood is at 443 Congress St., the detail runs on
Friday’s [sic] from 0800-1200.
— If you take the job please check with staff at the start of the job and before securing
as the job may go longer as dictated by the protesters.
— The officer will be in the entry way [sic] of 443 Congress St.
— The detail officer will maintain a high level of visibility, be proactive in preventing
potential confrontations, address any violations of state statutes (i.e. obstructing a
public way, assault, etc.), and be mindful of 1st Amendment rights of the
protesters. Protesters cannot block the doorways to the adjacent businesses.
— Take a cruiser, park it in front of the entrance (or as close as possible), make sure
the camera is recording and pointed at the entrance to 443 Congress St., make sure
you have the microphone with you and activate it when protesters are present.
— The officer needs to keep a count of the number of protestors at 0800, 0900, 1100,
and 1200 (please email the numbers to Sgt. Hutchings in groupwise). Also if there
is any sort of confrontation/disturbance please note that and put it in the email.
— If there are any complaints from protesters, workers or patrons, the detail officer
will request a Supervisor and the Shift Commander will be notified as well.
Neighborhood Prosecutor Trish McAllister will be available if there is a legal
question.
— The beat officers should also give SA to the area on Friday’s [sic].
— At the beginning of shift, an A-Team officer will put out an EMERGENCY NO
PARKING sign, , [sic] on the spot where the cruiser will park to video the entrance.
On occasions, protesters will be present on Saturday morning. The beat officer at that
time will take hourly head counts and report this Information to Sgt. Hutchings via
email.

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B.

The Plaintiff’s Protest Activities and the Portland Police
Department’s Interactions with Him

Mr. March believes he has been called by God to actively oppose abortion. AG’s
Mot. Facts ¶ 1 (ECF No. 170). He regularly voiced his opposition to abortion outside
of the Health Center by preaching, praying, spreading pro-life messages, and
communicating or attempting to communicate with women to dissuade them from
receiving abortion services. Pl.’s Mot. Facts ¶ 120. The record reflects that Health
Center staff complained to the Portland Police Department about Mr. March on four
occasions: November 6, 2015, November 13, 2015, December 4, 2015, and December
11, 2015. The present litigation stems from the three separate interactions between
Mr. March and Portland police officers occurring on November 6, 2015, December 4,
2015, and December 11, 2015. Pl.’s Mot. Facts ¶ 71.
1.

The November 6, 2015 Encounter

On November 6, 2015, Mr. March was on the sidewalk in front of the Health
Center. Pl.’s Mot. Facts ¶ 72. Portland Police Officer Jason Nadeau received a report
from dispatch of a complaint from someone at the Health Center that there was a
person outside making noise at a volume that was interfering with the provision of
medical services. City’s Mot. Facts ¶¶ 5–6. When Officer Nadeau arrived at the
Health Center, there was a male speaking loudly enough that Officer Nadeau could

Doran Lovell is an onsite employee and her contact number is 797-**** ext. *.
Thank You
JSR Ex. 19 at 7.

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hear him from a distance of about a half city block to a full city block. Pl.’s Mot. Facts
¶ 79.
Officer Nadeau approached the male, later identified as Mr. March, and much
of the encounter was captured on video. JSR Exs. 3 and 4. 6 The encounter can best
be described as a conversation between Officer Nadeau and Mr. March. The tone was
civil on both sides. Officer Nadeau spoke softly, and others in the area occasionally
chimed in. Mr. March spoke in a considerably louder voice than anyone else on the
recording, but he was not shouting. JSR Ex. 3.
The substance of the conversation can be summed up as follows. 7 Officer
Nadeau informed Mr. March that officers had received a complaint that someone
could be heard within the building. Officer Nadeau suggested that Mr. March was
the individual who could be heard. Mr. March demurred. Officer Nadeau informed
Mr. March that he (Nadeau) heard him when he rolled up from “back there.” Mr.
March asked whether there was a noise ordinance. Officer Nadeau informed him that
there was. Mr. March asked Officer Nadeau to give him an objective volume that he
could speak at. Officer Nadeau asked Mr. March if he could bring hi] voice down so
that they could not hear him inside. Mr. March asked how he (March) would know
whether they could hear him from inside, and Officer Nadeau stated, “You can bring

6

Exhibits 3 and 4 are recordings of the same interaction taken from different angles.

7
A transcript is attached as Appendix A to this opinion. I have created this transcript and the
others contained in the appendices by transcribing the videotapes in the record. They are rough
transcripts intended to add clarity to the factual record for this Order. Throughout this Order,
quotations from the encounters between Mr. March and City police officers are drawn from these rough
transcripts and from the videotapes themselves.

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it down from where you’re at right now or go from there.” Mr. March continued to ask
for an objective standard. Officer Nadeau then said:
Listen, I’m here for a noise complaint. . . . They say that they can hear
you. . . . I’m not trying to give you a hard time. I’m not trying to move
you guys out of here. I know you guys have to be here. . . . But when they
call in a complaint, I have to come talk to you.
Mr. March responded, “[G]ive me a way to continue to speak my convictions while
honoring what you’re saying.” Officer Nadeau said, “Just bring your voice down a
little. Can you do that?” Mr. March agreed to bring his voice down a little. But he
questioned whether the people inside the building could lie and say that they could
hear him even if he was just whispering, and Officer Nadeau acknowledged that they
could. Officer Nadeau ended the conversation shortly thereafter. JSR Exs. 3 and 4.
Shortly after this encounter, a discussion occurred between Officer Nadeau,
Sergeant Chuck Libby, and Major Donald Krier of the Portland Police Department,
and Major Krier determined that a warning under the Noise Provision of the MCRA
was appropriate. City’s Mot. Facts ¶¶ 15–16. Major Krier delivered the warning,
which was partially captured on video. JSR Ex. 7. The encounter was civil. The
substance of the conversation was as follows. 8 Mr. March told Major Krier that Officer
Nadeau had not previously warned him and had only asked him for a favor. Mr.
March asked whether he was being officially warned by Major Krier. Major Krier
responded, “About noise, ya. All’s I’m doing is I’m letting you know what it’s all
about.” Major Krier provided Mr. March with a copy of the MCRA. Mr. March asked

8

A transcript is attached as Appendix B to this opinion.

9

for further explanation about the MCRA, and Major Krier indicated that the law was
self-explanatory and suggested that Mr. March consult a lawyer if he had any
questions. 9
2.

The November 13, 2015 Complaint

Portland Police Department records indicate that on November 13, 2015, Lt.
William Preis and Officer Argitis responded to complaints from Health Center staff
that they could hear protesters on the street below. JSR Ex. 19 at 14–16. The
narrative portion of the Police Report states:
Lt. W. Preis and I Ofc. D. Argitis responded to Planned Parenthood and
met with the following Staff: Alexandra Cousins, Meredith Healey, and
Nicole Clegg. These people forwarded the complaints to some degree on
behalf of non-present staff that they could hear the protestors on the
street below. Healey stated that she could identify via voice and sight
out the window one of the protestors complained of: a black male named
“Andrew March.” The parties indicated that while they could hear the
protest, none of them indicated how this awareness constituted an
interference with their delivery of healthcare services. Rather, they
indicated that hearing the ‘aggressive’ noise and sometimes the content
of the speech constituted a distraction and may have troubled
unidentified patients. Lt. Preis and I went to one of the exam rooms
where the alleged violation occurred and we could not hear any noise
from below. Apparently, the protestors had left the area by this time. Lt.
The Portland Police Department records contain the following summary of the response to the
Complaint from Planned Parenthood on November 6, 2015:
9

PROTESTERS ARE AUDIBLE IN THE HEALTH CENTER.
204 – upon arrival i was only able to hear one of the protestors, and his voice was above
normal talking. i spoke to this male about the complaint and asked him to quiet down,
and he did lower his voice. I did advise him that the complaint was that he could be
heard from inside. I asked this male for his name and he refused to identify himself.
Major Krier did arrive and provided this male with a copy of the Maine civil rights act
which served as his officail [sic] warning. I did speak to amy inside planned parenthood
and advised her of the police contact with the male. she was able to tell me that this
male’s first name was andrew. andrew is a black male with average height and build
about 40 years old.
JSR Ex. 19 at 13.

10

Preis provided Clegg information on the process of the complaints
alleged should they occur again. I also consulted with the police
neighborhood prosecutor on this matter. Lastly, I informed Clegg that
this matter would be documented in police records via this narrative.
JSR Ex. 19 at 14–16.
3.

The December 4, 2015 Encounter

On December 4, 2015, Officer Graham Hults, after speaking with someone
from the Health Center, told Mr. March that he was being too loud. City’s Mot. Facts
¶¶ 23–24. Mr. March asked Officer Hults for a specific volume level, and Officer Hults
responded that he could not give Mr. March a specific level. City’s Mot. Facts ¶ 25.
At Mr. March’s request, Officer Hults asked a supervisor to come to the scene. City’s
Mot. Facts ¶ 26. Lt. Preis responded to the Health Center and met with Mr. March.
City’s Mot. Facts ¶ 29; Pl.’s Mot. Facts ¶ 100.
Lt. Preis had a cordial conversation with Mr. March, some of which was
captured on videotape. JSR Ex. 6. The substance of the conversation was as follows. 10
Lt. Preis greeted Mr. March and asked if he had a question about the MCRA. Mr.
March explained that he wanted to know how loud he should speak so that he could
exercise his constitutional rights. Mr. March told Lt. Preis that a climate change
protest that had recently passed through had made more noise than he was making.
Lt. Preis told Mr. March that he (Preis) did not think he was being too loud, and Mr.
March indicated that he had not changed his volume at all. Lt. Preis then told Mr.
March:

10

A transcript is attached as Appendix C to this opinion.

11

[T]he Maine Civil Rights Act does talk about if they can articulate that
noise and specifically the type of speech and what’s being said is
interfering with a medical procedure, that’s where the problem could be
and that’s very gray. . . . I understand what you’re saying that you hear
other noise that’s louder and that may be. It’s not based on a decibel
level.
Mr. March responded: “So what you just said was the content of what I am saying is
really the problem.” Lt. Preis answered: “It’s a combination.” Lt. Preis recommended
to Mr. March that he reach out to the Attorney General’s office to try and work
something out. Mr. March told Lt. Preis that he intended to keep speaking, and Lt.
Preis responded, “Alright. I understand.” Lt. Preis did not issue a warning to Mr.
March. Pl.’s Mot. Facts ¶ 109.
4.

The December 11, 2015 Encounter

On December 11, 2015, Portland Police Officer Graham Hults received a
complaint from someone at the Health Center that Mr. March was making noise at a
volume that was interfering with the provision of medical services on the second floor
of the Health Center building. Pl.’s Mot. Facts ¶¶ 110–11. Officer Hults went inside
to the second floor of the Health Center and could hear Mr. March. Pl.’s Mot. Facts
¶ 112.
Officer Hults had a conversation with Mr. March that was videotaped. JSR Ex.
5. Again, Mr. March was the loudest of any of the speakers on the video, and those
on the sidewalk around him could easily hear him. JSR Ex. 5. The substance of the
encounter was as follows. 11 Officer Hults indicated to Mr. March, “You’re being heard

11

A transcript is attached as Appendix D to this opinion.

12

upstairs so they want you to quiet down a little.” Mr. March complained that his civil
rights were being infringed. Officer Hults stated repeatedly that he was only
concerned with Mr. March’s volume. Mr. March accused Officer Hults of violating his
civil rights, and Officer Hults repeatedly stated that he was just asking Mr. March to
quiet down.
Although Mr. March was louder than in the previous encounters, when Mr.
March asked, “Is there a definitive volume level that I can speak at?”, Officer Hults
replied, “Right now is fine.” Toward the end of the encounter, Officer Hults explained
that it was only a problem when Mr. March’s voice was so loud that it could be heard
from inside the building. Officer Hults clarified, “When I go upstairs, I can hear you.
That’s when it’s a problem. . . . People who have to move back because they’re having
an exam right in this other room, and they don’t feel comfortable because they can
hear you.” When Mr. March complained that Health Center staff “can constantly
come down here no matter what my tone is, right?”, Officer Hults responded, “If I go
up there and I can’t hear anything, I can say ‘you know what, I don’t see a problem
right here.’ ” JSR Ex. 5.
5.

Since the December 11, 2015 Encounter

On January 6, 2016, Commander Gary Rogers emailed Planned Parenthood
OT Detail Instructions to officers assigned to the Planned Parenthood detail. The
Instruction sheet provides:
This is a list of the expectations and duties that are part of the Over
Time Detail at 443 Congress St., Planned Parenthood.
1. Always take a cruiser that has working audio and visual recording
capability.
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2. Park the cruiser in such a manner that the front entrance to 443
Congress St. is visible on the camera. Have the camera recording
audio and visual for the entire time of the detail (the obvious
exceptions would be to turn off the audio for conversations not
related to the detail ie. phone calls)
3. Your primary role is to be highly visible at the entrance to PPH. You
are there to keep the peace, make sure that the sidewalk and
entrance to the building are accessible to all, and to make sure that
any protestors present are afforded their right to freedom of speech.
4. If you are notified by PPH staff that someone is so loud they are
interfering with the safe and effective delivery of health services you
will need to warn the person who is too loud and explain to them
what they are being warned for as well as the consequences for
continuing. (you do not need to be the one to hear if it is too loud
inside, if they say it is too loud that is good enough.) Notify the intown patrol sergeant of the complaint.
5. Once you have warned the person about being too loud you need to
document it in the CAD screen or have dispatch enter it. (You need
to enter the name of the person you warned and that you explained
what the warning was for as well as that you explained what
happens if it continues)
6. If that person continues to be loud and staff from PPH tells you that
they can still hear them from inside then notify the in-town patrol
sergeant. You will need to do a report and forward it to the AG’s
office. Best practice for officers is to take detailed reports from all
parties involved. While it is not necessary to obtain a detailed
statement from the victim (the patient), such a statement would
certainly be helpful. The patient’s name does not have to be released
(Jane Doe) if this is a concern. At a minimum, we should obtain a
detailed statement from the clinic staff person which indicates the
series of events and the notion that the protestor has interfered with
the safe and effective delivery of health services within the building.
The officer’s report should also confirm that the protestor was
previously ordered to cease the noise (date and time), and after such
warning, the protestor intentionally continued to make noise that
could be heard within the building with the intent to interfere with
the delivery of health services.
7. If you have any questions or issues please call for a Supervisor to
respond ASAP
8. At the end of the detail please forward the number of protestors and
if any counter protestors, as well as the name, date and time of
anyone who was warned for being too loud (or any other issues that
came up) to Sgt. Hutchings [email address].

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9. The point of contact for PPH staff is Meredith Healey [phone
number]
JSR Ex. 22-A.
Between December 24, 2015, and April 29, 2016, Mr. March was outside the
Health Center protesting on at least twenty occasions. Pl.’s Mot. Facts ¶ 120. A video
taken on January 8, 2016, shows Mr. March speaking outside the Health Center. Pl.’s
Mot. Facts ¶ 121; JSR Ex. 2. Even with the typical street noise on Congress Street,
Mr. March could be clearly heard by those in his vicinity without having to yell or
raise his voice to a level that could be heard within the clinic. City’s Mot. Facts ¶ 52;
JSR Ex. 2. Mr. March has not protested outside of the Health Center since April of
2016, out of fear that his demonstrations will subject him to prosecution. Pl.’s Mot.
Facts ¶ 69.
No official or employee of the City of Portland has ever instructed Mr. March
to stop speaking based on the content of Mr. March’s speech, and no official or
employee of the City of Portland has ever ordered or instructed Mr. March to stop
speaking. Pl.’s Mot. Facts ¶¶ 137–38. Mr. March received one official warning under
the MCRA from Major Krier on November 6, 2015. JSR Ex. 7. Mr. March has never
been arrested or summonsed by an officer of the Portland Police Department for
violating the MCRA’s Noise Provision or for any other reason. Pl.’s Mot. Facts
¶¶ 139–40. Mr. March was never referred to the Attorney General for prosecution.
AG’s Mot. Facts ¶ 13.
Since 1995, the Attorney General has received only one referral involving a
potential violation of the Noise Provision, and it was a referral made by the Portland
15

Police Department about an individual named Brian Ingalls. AG’s Mot. Facts ¶¶ 11–
12. Other than the present lawsuit, Mr. March has never had any interactions with
the Attorney General’s Office, and the Attorney General has never brought a Noise
Provision enforcement action or threatened to bring such an action against Mr.
March. AG’s Mot. Facts ¶¶ 16–17.
II.

Procedural History
Mr. March filed suit and moved for a preliminary injunction in December of

2015. Compl. (ECF No. 1); Mot. for Prelim. Inj. (ECF No. 4). He later filed an
Amended Complaint asserting that the Noise Provision of the MCRA, both facially
and as applied to him, violated his First Amendment rights and his Fourteenth
Amendment rights to equal protection and due process. First Am. Compl. (“Am.
Compl.”) (ECF No. 30). I granted the Plaintiff’s motion for a preliminary injunction
because I found that on its face the Noise Provision likely violated the First
Amendment. Order (ECF No. 71). The Attorney General appealed my decision, and
the First Circuit reversed, concluding that the Noise Provision was facially
constitutional and requiring me to consider Mr. March’s as-applied challenges. March
v. Mills, 867 F.3d 46 (1st Cir. 2017). I stayed the case while the Plaintiff sought
Supreme Court review, which was denied. (ECF Nos. 91–94.) Following ample time
for discovery, the parties filed the pending motions for summary judgment. 12

12
The Plaintiff dismissed his claims against Portland Police Department officers William Preis,
Jason Nadeau, Donald Krier, and Graham Hults. See Stipulation for Order of Dismissal (ECF No.
159).

16

LEGAL STANDARD
Summary judgment is appropriate when there is no genuine dispute of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). A dispute is genuine where a reasonable jury could resolve the point
in favor of either party. Oahn Nguyen Chung v. StudentCity.com, Inc., 854 F.3d 97,
101 (1st Cir. 2017). A fact is material where it could influence the outcome of the
litigation. Id. On a motion for summary judgment, courts must construe the record in
the light most favorable to the non-movant and resolve all reasonable inferences in
the non-movant’s favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016). Nevertheless,
a court must “disregard ‘conclusory allegations, improbable inferences, and
unsupported speculation’ in determining whether a genuine factual dispute exists.”
Cherkaoui v. City of Quincy, 877 F.3d 14, 24 (1st Cir. 2017) (quoting Sullivan v. City
of Springfield, 561 F.3d 7, 14 (1st Cir. 2009)). In addition, the nonmovant “must
provide sufficiently supported evidence, without relying upon mere allegation or
denials of the movant’s pleading, to establish a genuine issue for trial.” Id. (internal
quotations and alteration omitted).
When faced with cross-motions for summary judgment, a court must “decide
each motion . . . on its own merits.” Wells Real Estate Inv. Trust II, Inc. v.
Chardon/Hato Rey P’ship, S.E., 615 F.3d 45, 51 (1st Cir. 2010). This means
“determin[ing] whether either of the parties deserves judgment as a matter of law on
facts that are not disputed.” Adria Int’l Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103,
107 (1st Cir. 2001). But each motion should not be considered in a vacuum. Wells Real
Estate, 615 F.3d at 51. Rather, a district court ordinarily should consider the motions
17

“at the same time, applying the same standards to each motion.” Id. (internal
quotations omitted); see also Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir.
2003) (explaining that the summary judgment standard is “not altered by the
presence of cross-motions for summary judgment” because the court considers
distinctly each motion and draws inferences against each movant in turn).
DISCUSSION
The Plaintiff brings his claims against the City and the Attorney General
under 42 U.S.C. § 1983. Section 1983 provides a cause of action against state officials
who deprive, or cause another to deprive, an individual of rights protected by federal
law. “To prevail, a plaintiff must show that ‘the challenged conduct is attributable to
a person acting under color of state law’ and that ‘the conduct must have worked a
denial of rights secured by the Constitution or by federal law.’ ” Freeman v. Town of
Hudson, 714 F.3d 29, 37 (1st Cir. 2013) (alternation omitted) (quoting Soto v. Flores,
103 F.3d 1056, 1061 (1st Cir. 1997)).
To establish § 1983 liability against a municipality, a plaintiff must satisfy
“two basic elements: first, that plaintiff’s harm was caused by a constitutional
violation, and second, that the [municipality was] responsible for that violation.”
Young v. City of Providence, 404 F.3d 4, 25–26 (1st Cir. 2005). In showing that the
municipality was responsible, a plaintiff may not rely on respondeat superior to
establish municipal liability for the actions of city employees. Monell v. Dep’t. of Soc.
Servs., 436 U.S. 658, 694 (1978). Rather, a plaintiff must show that “[t]he alleged

18

municipal action at issue . . . constitute[s] a ‘policy or custom’ attributable to the City.”
Young, 404 F.3d at 26 (citations omitted).
In order for the Plaintiff to establish that either the Attorney General or the
City is liable, he must establish a harm caused by a constitutional violation. 13 I begin
my analysis here. The Plaintiff contends that the Defendants have violated three of
his constitutional rights: his right to free speech, his right to equal protection of the
laws, and his right to due process. The Plaintiff’s first problem is that the record does
not support his claims of any such constitutional violations. His second problem is
that, even if he could show that his constitutional rights were violated, the Plaintiff
would have to show that the City and the Attorney General caused those rights to be
violated. I conclude that he has failed to do so.
I.

Violation of Constitutional Rights
A.

First Amendment Right to Free Speech

The Plaintiff contends that the Noise Provision, as applied to him, violates his
First Amendment right to free speech because it has been enforced based on the
content of his message and because it acts as an unconstitutional prior restraint on
his speech.

13
The issue of whether there has been a constitutional violation is distinct from the issue of
whether a plaintiff has standing. Although Mr. March has not been fined under the Noise Provision,
he has been warned under the statute and claims that his speech has been chilled. This seems
sufficient to establish his standing to bring his constitutional claims. Where he falls short is in
identifying facts showing that the City acted unconstitutionally in bringing about his alleged injury.
See McGuire v. Reilly, 386 F.3d 45, 59, 65 (1st Cir. 2004) (holding that protester had standing despite
lack of prosecution but ultimately concluding that his as-applied challenge failed because he produced
“no evidence that the police . . . enforced [the] statute in anything other than an evenhanded way”).

19

1.

Viewpoint and Content Discrimination

Count I of the Amended Complaint asserts that the City has discriminated
against the Plaintiff based on his viewpoint and the content of his speech, thereby
violating his First Amendment rights. Am. Compl. ¶¶ 116–17; Pl.’s Mot. 10–11. I start
with the Complaint’s viewpoint discrimination claim. 14 “The essence of a viewpoint
discrimination claim is that the government has preferred the message of one speaker
over another.” McGuire v. Reilly, 386 F.3d 45, 62 (1st Cir. 2004).
The First Circuit has already concluded that the Noise Provision here is
facially constitutional. Accordingly, Mr. March must proceed on a theory that the
Noise Provision was unconstitutionally applied to him. 15 McGuire, 386 F.3d at 48
(after First Circuit rejected facial challenge to statute that prohibited people from
approaching, without permission, anyone within a zone around abortion clinics,
plaintiffs were left to pursue as-applied challenge that officers discriminated based

Mr. March’s briefing was frustratingly vague. For instance, he does not address viewpoint
discrimination anywhere in his motion or in his responses to the City or Attorney General’s motions.
He does not offer any analysis of whether there is a distinction between viewpoint-based and contentbased discrimination. He shifts between legal authorities and factual claims without offering any
analysis of how a particular legal doctrine applies to the facts of his case.
14

15
After McGuire was decided, Massachusetts amended its buffer-zone statute, replacing the sixfoot no-approach zones with a 35-foot fixed buffer zone from which individuals were categorically
excluded unless an exemption applied, such as the exemption for clinic employees acting within the
scope of their employment. The Supreme Court struck down this version as facially unconstitutional.
See McCullen v. Coakley, 573 U.S. 464 (2014). The Court held that, though the statute was content
and viewpoint neutral, it was not narrowly tailored to serve a significant government interest. The
Court also noted that the plaintiffs in McCullen “nowhere allege[d] selective enforcement” of the
statute. Id. at 484. Nevertheless, in dicta, the Court reasoned that, if clinic escorts were authorized to
speak about abortion within the buffer zone while non-escorts were not, the statute’s “exemption for
clinic employees would then facilitate speech on only one side of the abortion debate—a clear form of
viewpoint discrimination that would support an as-applied challenge to the buffer zone at that clinic.”
Id. at 485. But the Court then noted that the record “contain[ed] insufficient evidence to show that the
exemption operate[d] in this way at any of the clinics.” Id.

20

on viewpoint when enforcing the statute). The McGuire court explained that, in order
to prevail on the as-applied challenge for “viewpoint discriminatory enforcement,” a
plaintiff would need to proceed on a theory of selective enforcement and “would need
to show ‘a pattern of unlawful favoritism.’ ” 16 Id. at 64 (quoting Thomas v. Chicago
Park Dist., 534 U.S. 316, 325 (2002)).
Here, however, Mr. March marshals no facts to show a pattern of unlawful
favoritism. 17 Id. at 65 (concluding that plaintiffs were “stymied because there [was]
no evidence that the police turned a blind eye toward pro-abortion speech while not
turning a blind eye to possible transgressions by plaintiffs”). The facts here show that
the only complaints that the police received were complaints from the Health Center
about Mr. March. And, the police never acted unless they received a complaint. The
fact that the police took no action in response to a climate change protest does not
establish a pattern of unlawful favoritism because there is no evidence that the police
ever received a complaint about the climate protest interfering with the provision of

The buffer zone statute at issue in McGuire was held facially constitutional, despite the “fact
that one side of the abortion debate might suffer some incidental adverse effects or burdens,” because
the legislature’s motivations in passing the statute were content neutral. 386 F.3d at 63. The First
Circuit then reasoned that “some showing of intent on the part of government officials” was likely
required for an as-applied viewpoint discrimination claim too. Id. “Unless government actors were to
intentionally enforce the statute unequally, then any evidence of inequality that plaintiffs were to
show would merely indicate a ‘disproportionate burden’ that would not signify viewpoint
discrimination.” Id. (alterations omitted) (quoting McGuire v. Reilly, 260 F.3d 36, at 44 (1st Cir. 2001)).
Because the court found that the plaintiffs had failed to establish a pattern of unlawful favoritism, the
court sidestepped the question of whether the level of intent required for a viewpoint discrimination
claim under the First Amendment differed from the intent requirement for an equal protection claim
under the Fourteenth Amendment. Id.
16

17
The McGuire court also noted that a viewpoint discrimination claim can arise “when the state
decides whether or not to impose criminal penalties based on the viewpoint expressed by someone’s
words.” McGuire, 386 F.3d at 62. Mr. March develops no argument that the Defendants have
criminalized his viewpoint—nor could he, as the facts show that officers repeatedly told him he could
keep sharing his message.

21

health care services. 18 Nor does it give any indication that officers were favoring
certain opinions on a topic over others. See id. at 62 (explaining that a viewpoint
discrimination claim can exist when the “government enforces the law against
persons of one viewpoint who violate the statute while not enforcing the law against
similarly situated persons of the opposing viewpoint who also violate the statute”).
Turning to content discrimination, when the First Circuit upheld the facial
constitutionality of the Noise Provision at issue here, it suggested that there could be
a successful as-applied challenge if the Noise Provision’s “disruptive-intent
requirement were enforced in an entirely content-dependent way.” 19 March, 867 F.3d
at 61, 64 (concluding, however, that a health center’s complaint that a person’s noise
is interfering with the provision of health services is not a content-based restriction).
But even here Mr. March fails to present a cogent argument or offer facts establishing
or even suggesting that the statute was “enforced in an entirely content-dependent

Although the Plaintiff repeatedly suggests that Health Center staff only complained about prolife protestors and speculates that Health Center staff could lie about whether they could hear Mr.
March inside the building, he makes no attempt to explain how the Attorney General or the City could
be liable for the actions of private parties. “Only the Government can violate First Amendment rights.”
McGuire, 386 F.3d at 60. The Plaintiff has developed no argument that the Noise Provision or the
City’s policy somehow transformed Health Center staff into government actors subject to the First
Amendment.
18

19
Mr. March argues that the Noise Provision “is being used . . . to stifle the speech of pro-life
preachers [like March] who are preaching to the public and who have no intent to disrupt health
services.” Pl.’s Am. Opp’n City’s Mot. 10 (emphasis in original) (ECF No. 174). I note that neither the
City nor the Attorney General has issued a citation to Mr. March under the Noise Provision. Rather,
police officers appear to be enforcing the Noise Provision in just the way that the First Circuit
envisioned. See March v. Mills, 867 F.3d at 61 (“The protester is . . . subject to the Noise Provision’s
restriction on noisemaking only if he expresses that message in a certain manner—that is, with the
specified disruptive intent and ‘after having been ordered by a law enforcement officer to cease.’ ”).
The fact that no citation was issued suggests that the warning served its purpose—it screened out the
speakers who did not have the intent to disrupt the provision of health services. See id. (“[T]he most
probative evidence of disruptive intent is a person’s decision to intentionally keep making loud noise
after having been warned of its disruptive effect.”).

22

way.” See id. at 61. For example, he provides no facts indicating that the officers
singled out Mr. March because of the content of his speech rather than the disruptive
nature of it. Instead, he surmises that Health Center staff must have done so, asking,
“Why would Planned Parenthood staff—who have admitted to making complaints
based upon the content of Plaintiff’s speech—not make such complaints when
Portland’s policies permit them to silence speech they disagree with?” 20 Pl.’s Reply 5
(ECF No. 178).
In reality, the record contains numerous undisputed facts supporting a very
different conclusion, namely that officers acted because they received complaints
about the disruptive nature of Mr. March’s noise; that the Portland Police
Department only issued one official warning to Mr. March; and that on the occasion
when he was warned, the officer could hear Mr. March’s voice from at least a half
block away, giving the police independent confirmation of Mr. March’s volume. See
City’s Mot. Facts ¶¶ 6, 9; JSR Ex. 3 (showing that on November 6, 2015, Officer
Nadeau responded to the Health Center after receiving a complaint that a person
outside was speaking at a volume that interfered with the provision of health care

20
Mr. March provides no citation for his assertion that “Planned Parenthood staff have admitted
to making complaints to Portland based upon the content of Plaintiff’s speech.” Pl.’s Am. Opp’n City’s
Mot. 9. His factual statements that purport to align with this assertion either contain no citations to
the record or unhelpfully cite the entire record. See Pl.’s Mot. Facts ¶ 46 (citing no part of record in
alleging that officers were informed by Health Center staff “that sometimes the content of the
protestors’ speech constituted a distraction and may have troubled unidentified patients”); Pl.’s Mot.
Facts ¶ 67 (citing entire record to state that Health Center staff have only lodged complaints against
pro-life protesters). Pursuant to Local Rule 56(f), I disregard these unsupported assertions. See D. Me.
Loc. R. 56(f) (“The court may disregard any statement of fact not supported by a specific citation to
record material properly considered on summary judgment. The court shall have no independent duty
to search or consider any part of the record not specifically referenced in the parties’ separate
statements of facts.”).

23

services inside the building and that as he rolled up he could hear the Plaintiff from
at least a half block away); City’s Mot. Facts ¶¶ 31–33 (stating that on December 4,
2015, Mr. March acknowledged that Officer Hults spoke to him after receiving a
complaint from someone inside the Health Center); City’s Mot. Facts ¶¶ 40–41
(stating that on December 11, 2015, after receiving a complaint from inside Health
Center that Mr. March was making noise at a volume that interfered with the
provision of health care services, Officer Hults went into the Health Center and
verified that Mr. March could be heard from inside).
Moreover, Mr. March’s argument that the City’s enforcement of the Noise
Provision has “armed [Health Center] staff with a heckler’s veto” is likewise
unsupported. See Pl.’s Mot. 11. An unconstitutional “heckler’s veto” exists when the
government allows or disallows protected speech based merely on the audience’s
reaction to its content. See Bachellar v. Maryland, 397 U.S. 564, 567 (1970) (“[I]t is
firmly settled that under our Constitution the public expression of ideas may not be
prohibited merely because the ideas are themselves offensive to some of their hearers,
or simply because bystanders object to peaceful and orderly demonstrations.”)
(internal quotations and citations omitted); Ctr. for Bio-Ethical Reform, Inc. v. L.A.
Cty. Sheriff Dep’t, 533 F.3d 780, 788 (9th Cir. 2008) (“[T]he government cannot silence
messages simply because they cause discomfort, fear, or even anger.”).
Again, the First Circuit has already held that the Noise Provision is facially
constitutional and content-neutral, and Mr. March has put forth no evidence that the
police acted based merely on the Health Center staff’s reaction to the content of his

24

message. Instead, the properly supported facts establish that the police only acted
when Health Center staff complained that Mr. March interfered with the provision
of health care services. 21 See Rosenbaum v. City & Cty. of San Francisco, 484 F.3d
1142, 1159 (9th Cir. 2007) (rejecting “heckler’s veto” claim of viewpoint discrimination
and noting that imputing the view of the complainant to investigating officers would
lead to an “absurd result”).
There is only one statement by an officer that content was ever considered.
During the December 4, 2015 encounter, Lt. Preis essentially told Mr. March that it
was a combination of the noise that he was making and the content of what he was
saying that caused a problem. See JSR Ex. 6. But this single reference by a police
officer to the content of the message does not help Mr. March. Not only did Lt. Preis
not issue a warning under the Noise Provision, but he even told Mr. March, “I don’t
think you are being very loud, based on what I’m seeing.” JSR Ex. 6. Mr. March was
allowed to continue his protest. In fact, at that interaction, and at all others in the
record, officers repeatedly assured Mr. March that he could continue to share his

21
Mr. March does not point to facts that support his claim that Health Center employees issued
complaints solely based on his message. The record reveals that Mr. March protested many times
outside of the Health Center, both before and after the incidents relevant to this case without any
complaints from Health Center Staff. When Health Center staff did complain on November 6th,
December 4th, and December 11th, the record reveals that they told the police that noise could be
heard inside the Health Center. JSR Exs. 3, 5, 6. There is, however, one complaint in which the Health
Center staff referred to both noise and content. The police record generated from the Planned
Parenthood complaint made on November 13, 2015, states that the staff indicated that “hearing the
‘aggressive’ noise and sometimes the content of the speech constituted a distraction and may have
troubled unidentified patients.” JSR Ex. 19 at 15–16. Although this record evidence exists, it does not
help the Plaintiff. The police report indicates that the complainants had not “indicated how [the
awareness of the protests] constituted an interference with their delivery of health care services.” JSR
Ex. 19 at 15. There is no indication in the record that the police took any action against Mr. March
based on the November 13th complaint.

25

message at a lower volume. The Plaintiff might have been able to establish a
constitutional violation if the police had asked him to bring his volume down to a
whisper or required him to stop speaking altogether. But the videotapes show that
Mr. March was allowed to continue speaking at a level that was loud and clear enough
for his intended audience to easily hear him. See JSR Exs. 2, 3, 4, 6, and 7; see also
Pl.’s Mot. Facts ¶ 79.
The success of the Plaintiff’s viewpoint and content discriminatory
enforcement challenge “is dependent on the factual evidence provided as to how the
statutory scheme has in fact operated vis-á-vis [the Plaintiff].” McGuire, 386 F.3d at
62. The undisputed facts refute any assertion that the City enforced the Noise
Provision based on the Plaintiff’s viewpoint. The Plaintiff has failed to offer any
evidence showing that the scheme was enforced in a discriminatory manner or
constituted a “pattern of unlawful favoritism.” Id. at 64; see also Brown v. City of
Pittsburgh, 586 F.3d 263, 293 (3d Cir. 2009) (explaining that to prove a pattern of
unlawful favoritism, a plaintiff “must prove not merely that the weight of [a
municipality’s] enforcement of [an ordinance] has tended to fall more heavily on those
who advocate one viewpoint . . . than on those who advocate another;” rather, a
plaintiff “must also prove that such enforcement occurred because of the viewpoint
expressed”). Nor has Plaintiff shown that the police enforced the statute in a contentdependent way. As such, based on the undisputed facts, the City and the Attorney
General are entitled to summary judgment on this claim.

26

2.

Prior Restraint

Count III of the Amended Complaint asserts that the Noise Provision
represents an unconstitutional prior restraint on Mr. March’s speech and has
foreclosed his ability to convey his message. Am. Compl. ¶¶ 141–50. But again, the
record belies his argument. 22
The term “prior restraint” is “used to describe administrative and judicial
orders forbidding certain communications when issued in advance of the time that
such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550
(1993) (internal quotations and citation omitted). In practice, at the municipal level,
prior restraints often take the form of “licensing [or] permit schemes” that require
speakers to obtain permission in advance of certain speech or expression. See New
England Reg. Council of Carpenters v. Kinton, 284 F.3d 9, 21 (1st Cir. 2002). Out of
concern for “government censorship,” id., there is a “heavy presumption against [the]
constitutional validity” of a prior restraint. N.Y. Times v. United States, 403 U.S 713,
714 (1971) (per curiam) (internal quotations omitted). And any permissible prior
restraint must “contain adequate substantive and procedural safeguards against

22
The Plaintiff also alleges that the Noise Provision is not a valid time, place, and manner
restriction as applied to him. Am. Compl. ¶ 132. In Count II, he specifically claims that he “cannot
reach his intended audience at an audible volume” and that the “[s]tatute, as enforced by Defendants,
has almost completely foreclosed [his] ability to communicate his message.” Am. Compl. ¶¶ 136–37.
The Plaintiff develops no argument as to why he is entitled to summary judgment on this particular
count; in fact, he makes no mention of a “time, place, and manner” restriction in any of his briefing on
these pending motions. Instead, he simply argues that the enforcement of the Noise Provision has
foreclosed his ability to protest—an argument that appears in several of his claims. Because the First
Circuit has held that the Noise Provision is a facially constitutional time, place, and manner
restriction, and because I conclude that Mr. March has failed to show that it has been enforced
unconstitutionally or has foreclosed his speech, the City and Attorney General are entitled to summary
judgment on Count II as well.

27

arbitrary (or content-based) State action.” Kinton, 284 F.3d at 21. The Plaintiff
merely asserts that the Noise Provision imposes a prior restraint, but he makes no
attempt to analyze the law or explain how his case fits within this legal doctrine.
Here, neither the City nor the Attorney General has imposed any requirement
on Mr. March before he is permitted to protest outside of the Health Center. Rather,
the City has taken action only after Mr. March was already protesting and after
officers received complaints from Health Center employees. Moreover, at each such
encounter, officers repeatedly assured Mr. March that they were not prohibiting him
from protesting in a less disruptive manner, and video evidence shows that Mr.
March continued to speak at a level clearly audible to people passing by. The record
also shows that Mr. March continued to protest outside the Health Center at least
twenty times between December of 2015 and April of 2016. Pl.’s Mot. Facts ¶ 120.
Thus, according to the undisputed facts, the Noise Provision and the City’s
enforcement of it have not “completely ban[ned] Plaintiff from engaging in audible
protected speech near the [Health Center]” or “foreclose[d] Plaintiff’s ability to
communicate orally with his fellow citizens near the [Health Center.]” Am. Compl.
¶¶ 144–45.
The First Circuit has already held that the Noise Provision is facially content
neutral and serves a “significant state interest without burdening substantially more
speech than necessary and while leaving open ample alternative avenues for
communication.” March, 867 F.3d at 69. If the statute provides alternative avenues
and the City’s apparent policy did not close off those avenues, as demonstrated by

28

Mr. March’s own actions, it is unclear how either the City or the Attorney General
enacted an unconstitutional prior restraint. Thus, the City and the Attorney General
are entitled to summary judgment on this claim as well.
B.

Equal Protection

Mr. March also asserts an equal protection claim, arguing that the City and
the Attorney General have selectively enforced the Noise Provision against him based
on his religion. Am. Compl. ¶¶ 151–57. As with his other claims, this claim is
unsupported by the record. To prove an equal protection claim for selective
enforcement, a plaintiff must show that “(1) the person, compared with others
similarly situated, was selectively treated; and (2) that such selective treatment was
based on impermissible considerations such as race, religion, intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad faith intent to injure
a person.” 23 Freeman v. Town of Hudson, 714 F.3d 29, 38 (1st Cir. 2013) (internal
quotations omitted). Although the “formula for determining whether individuals or
entities are ‘similarly situated’ . . . is not always susceptible to precise demarcation,”
the “test is whether a prudent person, looking objectively at the incidents, would

23
In McGuire, the First Circuit noted the overlap between First Amendment and equal
protection claims in the as-applied context, specifically when a plaintiff is challenging the enforcement
of a statute that restricts speech. See 386 F.3d 62–64. The court explained that the “primary potential
difference concerns the role of intent: in equal protection cases, plaintiffs must show that the relevant
government actor intended to discriminate against the disfavored group.” Id. at 63. The court noted
that “[i]ntent, in this context, means more than mere knowledge by the government actor that a policy
has a discriminatory effect.” Id. Rather, “the government agent must have adopted the policy because
of, and not despite, its discriminatory impact.” Id. Explaining that such “[i]mpermissible intent is
difficult to demonstrate” in a selective enforcement claim, the court declined to analyze such intent
because it concluded that the plaintiffs’ claims failed under the more lenient “pattern of unlawful
favoritism” required for a successful First Amendment challenge. Id. at 62–64. I point out this
distinction because Mr. March has identified no facts to support any discriminatory intent on the part
of the City, its officers, or the Attorney General.

29

think them roughly equivalent and the protagonists similarly situated.” AponteRamos v. Álvarez-Rubio, 783 F.3d 905, 909 (1st Cir. 2015) (internal quotations
omitted). “In other words, apples should be compared to apples.” Id. (internal
quotations omitted).
Although Mr. March repeatedly asserts that, “since its inception, the MCRA
and its Noise Provision have only been enforced by Portland against pro-life
protestors like Plaintiff and only upon complaints from Planned Parenthood,” his
argument that this translates into selective enforcement is speculative. Pl.’s Reply 4,
6. He contends, without citation to any fact, that “Planned Parenthood surgically
wields the heckler’s veto enshrined in Portland’s policies against Plaintiff to silence
him because they oppose the content of his pro-life message.” Pl.’s Reply 4. He further
speculates that “obviously, Planned Parenthood did not make any complaints against
any of these other entities because Planned Parenthood is not opposed to the
messages being expressed.” Pl.’s Reply 4.
Simply put, Mr. March points to no evidence indicating that he was singled out
because of his religion, or even that officers treated any other similarly situated
person differently. Although Mr. March claims that officers and Health Center
employees did not enforce the Noise Provision against other loud groups, such as
climate change protesters, he fails to show that those groups were similarly situated.
Am. Compl. ¶ 73; Pl.’s Mot. 10. As the videotapes reveal, the noise from the climate
change protest is very different in character from Mr. March’s preaching. Compare
JSR Ex. 8, with JSR Ex. 2. In the videotape in Exhibit 8, a large group of young people

30

parade down the far side of Congress Street moving swiftly by the Health Center
repeating in a cacophonous chorus: “What do we want? Climate action! When do we
want it? Now!” In contrast, in the videotape in Exhibit 2, Mr. March stands on a
soapbox on the sidewalk below the Health Center facing the windows of the Health
Center, which are perhaps twelve feet above his head. His lone, penetrating voice can
be heard over all others. The videotape, which shows only a portion of his protest,
goes on for ten minutes and includes Mr. March’s discussion with a passerby. At the
end of the video, he states, “let’s go back to the reading,” suggesting that his protest
continues. 24 There are no facts suggesting that other noisemakers, such as the
climate protesters, were disrupting the provision of health services within the
building. See Pl.’s Mot. Facts ¶¶ 129–134 (explaining that the City is not aware of
receiving complaints that noise by other individuals or groups was interfering with
the provision of health care services within the Health Center).
Mr. March identifies no instance where another speaker did not receive a
warning after Health Center employees complained that the person was interfering
with the provision of health services. Nor does he even argue that officers warned
him without such a complaint from a Health Center employee. See Buchanan v.
Maine, 469 F.3d 158, 178 (1st Cir. 2006) (explaining that a plaintiff “claiming an
equal protection violation must first identify and relate specific instances where
persons situated similarly in all relevant aspects were treated differently, instances

24
There is no evidence in the record that Health Center staff complained to the police on this
occasion.

31

which have the capacity to demonstrate that [the plaintiff was] singled out for
unlawful oppression”) (internal quotations, alteration, and emphasis omitted).
Rather, Mr. March merely speculates that Health Center employees only complained
about him because of his message and religion. This speculation is insufficient at the
summary judgment stage.
Section 1983 liability only arises when there has been a constitutional
violation. See Kennedy v. Town of Billerica, 617 F.3d 520, 531 (1st Cir. 2010)
(explaining that a municipality can only be liable for “identifiable constitutional
violations attributable to official municipal policy”); City of Los Angeles v. Heller, 475
U.S. 796, 799 (1986) (per curiam) (“If a person has suffered no constitutional injury
at the hands of the individual police officer, the fact that the departmental
regulations might have authorized the use of constitutionally excessive force is quite
beside the point.”). Even if I view the record in the light most favorable to him, Mr.
March has failed to present any facts suggesting that his constitutional rights were
violated. Thus, I conclude that the City and the Attorney General are entitled to
summary judgment on Mr. March’s viewpoint discrimination (Count I), prior
restraint (Count III), and equal protection (Count IV) claims. 25
C.

Due Process Clause

The City and the Attorney General both move for summary judgment on Mr.
March’s claim that the Noise Provision is unconstitutionally vague, both facially and

25
Because I conclude that the City and the Attorney General are entitled to summary judgment
on these claims, Mr. March’s motion for summary judgment on these claims is denied.

32

as applied to him (Count V). 26 In his Complaint, Mr. March asserts that the Noise
Provision “does not give fair notice to citizens” and “does not provide minimal
standards to guide law enforcement.” Am. Compl. ¶¶ 163–64. Specifically, Mr. March
contends that “heard within a building” is not an objective standard because it varies
based on other noise and weather conditions and because it cannot be independently
known by a law enforcement officer. Am. Compl. ¶¶ 165–66.
In his motion for summary judgment, the Attorney General relies on ten cases
to argue that the Noise Provision is not void for vagueness because, inter alia, the
statute carries civil rather than criminal penalties, has a mens rea requirement, has
a warning requirement, and creates an objective volume threshold for a violation. The
City likewise argues that the Noise Provision “identifies the harm to be addressed,”
“requires a causal connection between the protected interest and certain forbidden
conduct,” and “requires proof of intent.” City’s Mot. 13 (ECF No. 163). Mr. March
offers neither analysis nor case support in opposing the Attorney General or the
City. 27 In the opening paragraph of his own motion, Mr. March asserts that he is

Mr. March made no vagueness challenge to the statute when the case was before the First
Circuit. See March, 867 F.3d at 55 n.5.
26

27
Mr. March begins his opposition to the Attorney General’s motion with an italicized
subheading that states, “Whatever ‘noise’ Planned Parenthood chooses to complain about is not a
lawful or constitutionally permissible standard by which to enforce the Maine Civil Rights Act against
Plaintiff.” Pl.’s Opp’n AG’s Mot. 1 (ECF No. 169). But he did not put the flesh on the bones of this point.
See Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1976). His only statements on vagueness
are, in his introduction section, “Plaintiff asserts . . . the Noise Provision is unconstitutionally vague,”
and, in his conclusion section, “the Noise Provision, as applied to Plaintiff . . . is unconstitutionally
vague.” Pl.’s Opp’n AG’s Mot. 2, 6.
In opposing the City’s motion for summary judgment, Mr. March wrote in his introduction that
“Plaintiff opposes Portland’s Summary Judgment Motion and asserts that . . . the Noise Provision . . .
is unconstitutionally vague,” and in his conclusion section he wrote that “the Noise Provision, as
applied to Plaintiff . . . is unconstitutionally vague.” Pl.’s Am. Opp’n City’s Mot. 1–2, 13.

33

moving for summary judgment against the City on his due process claim, but he
develops no argument on this point until the final pages of his Reply brief. See Pl.’s
Mot. 1; Pl.’s Reply 7–8. Even then, he makes unsupported and vague accusations,
without any developed analysis or case support. 28
“The vagueness doctrine, a derivative of due process, protects against the ills
of laws whose ‘prohibitions are not clearly defined.’ ” Nat’l Org. for Marriage v. McKee,
649 F.3d 34, 62 (1st Cir. 2011) (quoting Grayned v. City of Rockford, 408 U.S. 104,
108 (1972)). A statute is impermissibly vague if (1) “it fails to provide people of
ordinary intelligence a reasonable opportunity to understand what conduct it
prohibits” or (2) “it authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). Out of concern for arbitrary
suppression of free speech, “the Constitution requires a ‘greater degree of specificity’
in cases involving First Amendment rights.” McKee, 649 U.S. at 62. Nevertheless,
“mathematical certainty from our language” is impossible and unattainable. See
Grayned, 408 U.S. at 110. Moreover, the Supreme Court has been more tolerant of
enactments that impose civil—rather than criminal—penalties and ones that contain
a scienter requirement. See Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 498–99 (1982); Hill, 530 U.S. at 732 (explaining that concern about

28
Mr. March’s cursory treatment of the vagueness issue in both his oppositions and own motion
likely amounts to a waiver and entitles the Attorney General and the City to summary judgment. See
Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (quoting Vaughner v. Pulito, 804
F.2d 873, 877 n. 2 (5th Cir. 1986)) (“[A]n issue raised in the complaint but ignored at summary
judgment may be deemed waived. ‘If a party fails to assert a legal reason why summary judgment
should not be granted, that ground is waived.’ ”); Vélez-Vélez v. P.R. Highway & Transp. Auth., 795
F.3d 230, 238 (1st Cir. 2015) (same).

34

proper notice can be “ameliorated by the fact that [the statute] contains a scienter
requirement”).
In Grayned, the Supreme Court upheld an “antinoise” ordinance challenged on
vagueness grounds. 408 U.S. at 106. That ordinance prohibited persons from
“willfully mak[ing] . . . any noise or diversion,” while next to a school, that “disturbs
or tends to disturb the peace or good order of such school session.” Id. at 107–08. In
holding that the ordinance was not unconstitutionally vague, the Supreme Court
explained that any vagueness in these terms “is dispelled by the ordinance’s
requirements that (1) the ‘noise or diversion’ be actually incompatible with normal
school activity; (2) there be a demonstrated causality between the disruption that
occurs and the ‘noise or diversion’; and (3) the acts be ‘willfully’ done.” Id. at 113–14.
The Court contrasted the ordinance with a “vague, general ‘breach of the peace’
ordinance,” and noted that the antinoise ordinance was “written specifically for the
school context, where the prohibited disturbances are easily measured by their
impact on the normal activities of the school.” Id. at 112. Although enforcement of the
ordinance “require[d] the exercise of some degree of police judgment,” that judgment
was sufficiently “confined” because there must be “demonstrated interference with
school activities.” Id. at 114.
Similarly, in Boos v. Barry, the Supreme Court held that a statute that
restricted congregations at embassies was not unconstitutionally vague because the

35

words and context of the statute “gave fair notice of its scope.” 29 485 U.S. 312, 332
(1988). As in Grayned, the Court explained that the “prohibited quantum of
disturbance” need not be specified in the statute. Id. The statute in Boos was “crafted
for a particular context and given that context, it [was] apparent that the ‘prohibited
context of disturbance’ is whether normal embassy activities have been or are about
to be disrupted.” Id. Because the statute “communicate[d] its reach in words of
common understanding,” it survived the vagueness challenge. Id.
The words and context of the Noise Provision undermine Mr. March’s
argument that the statute authorizes arbitrary and discriminatory enforcement.
Under the terms of the statute, noise that can be heard within the building and that
is made intentionally to disrupt services within it is prohibited. 30 As in Grayned, it
is not merely the volume of the noise that is restricted. 31 Nor is it just the intent of
the speaker. Rather, it is the combination of the two. See March, 867 F.3d at 67. And
this is a reflection of the statute’s purpose. When the First Circuit upheld the Noise
Provision against Mr. March’s earlier facial challenge, the court explained that the
Noise Provision addressed a particular harm, namely interference with “safe and

29
Although the text of the statute appeared vague and overbroad, the Supreme Court adopted
the narrowed interpretation applied by the appellate court. Boos v. Barry, 485 U.S. 312, 331–32 (1988).

I am not convinced by Mr. March’s argument that “heard within a building” lacks objectivity.
Just because the volume that meets that standard might change due to varying external conditions
does not mean that it is subjective. Moreover, the fact that the audible volume might change merely
reinforces the ineffectiveness of a strict decibel limit. Instead of imposing such a limit, the Noise
Provision is tailored to address noise that actually can be heard within a building and then, within
that, is targeted at a subset of noise that is meant to disrupt the health services within.
30

31
In Grayned, the Supreme Court explained that it is not the sheer volume level that determines
whether a noise will be disruptive. Instead, any disturbance was to be measured by its impact on
normal school activities. See Grayned v. City of Rockford, 408 U.S. 104, 112 (1972).

36

effective health care.” Id. at 64–66. And the Noise Provision contemplates a
“demonstrated causality” between the disruption of health care services and the
noise. See Grayned, 408 U.S. at 113. It is thus “clear what the [Noise Provision] as a
whole prohibits,” even if isolated words or phrases might seem vague initially. Id. at
110 (finding ordinance constitutional even though certain words were “marked by
flexibility and reasonable breadth, rather than meticulous specificity”) (internal
quotations omitted). As the First Circuit explained, the Noise Provision “target[s] a
subset of loud noise that is likely to cause the ‘unique’ harm that Maine has a
significant interest in singling out.” March, 867 F.3d at 66.
In addition, other factors weigh against finding that the Noise Provision is
impermissibly vague. First, it imposes no criminal penalty. See Village of Hoffman
Estates, 455 U.S at 498–99 (explaining that the Supreme Court has “expressed
greater tolerance of enactments with civil rather than criminal penalties because the
consequences of imprecision are qualitatively less severe”). Second, it contains both a
warning requirement and a mens rea requirement. Officers must warn the speaker
before issuing any citation. And a citation is only to be issued if the speaker intends
to jeopardize the health of persons receiving services within the building or to
interfere with the safe and effective delivery of those services. 5 M.R.S.A. § 4684B(2)(D). These requirements ensure that no person will be punished for accidentally
or unknowingly making such disruptive noise, and thus the statute does not act as “a
trap for those who act in good faith.” Colautti v. Franklin, 439 U.S. 379, 395 (1979)
(internal quotations omitted); see also Gonzales v. Carhart, 550 U.S. 124, 149–150

37

(2007) (explaining that the Supreme Court “has made clear that scienter
requirements alleviate vagueness concerns”). On the whole, I conclude that the Noise
Provision is not unconstitutionally vague on its face.
Mr. March also asserts that the Noise Provision is unconstitutionally vague as
applied to him. Specifically, he argues that the City’s application of the Noise
Provision against him “failed to provide him with a reasonable opportunity to
understand what conduct was prohibited.” Pl.’s Reply 7. However, during each
interaction with Mr. March, officers gave guidance on how to comply with the Noise
Provision. When officers formally warned Mr. March under the Noise Provision on
November 6, 2015, they provided him with a copy of the statute, which I have just
concluded sufficiently conveys what is prohibited and is not impermissibly vague.
JSR Exs. 3 and 7. On December 4, 2015, Lt. Preis attempted to explain the Noise
Provision’s requirements, indicated that Mr. March’s volume when speaking with
him was not too loud, and recommended that Mr. March reach out to the Attorney
General’s office for more specific guidance. JSR Ex. 6. Finally, on December 11, 2015,
after Mr. March asked Officer Hults whether there was a definitive volume he could
speak at, Officer Hults replied that the volume Mr. March was speaking at then was
“fine” and explained that it was only a problem when Mr. March was so loud that his
voice could be heard inside the building. JSR Ex. 5. Each of these encounters
demonstrates that officers repeatedly provided reasonable guidance to Mr. March on
how to comply with the Noise Provision.

38

Again, at the summary judgment stage, Mr. March cannot just reassert his
claims and disregard the undisputed facts that refute them. See Cherkaoui, 877 F.3d
at 24 (explaining that the “nonmovant must provide sufficiently supported evidence,
without relying upon mere allegation or denials of the movant’s pleading, to establish
a genuine issue for trial” and that the “plaintiff must offer significant probative
evidence tending to support the complaint”) (internal quotations and alterations
omitted). Accordingly, the City and the Attorney General are entitled to summary
judgment on the Plaintiff’s unconstitutional vagueness claim.
II.

Causation
In addition to identifying a deprivation of a federal right, a plaintiff bringing a

§ 1983 claim must also establish that “the defendant’s conduct was a cause in fact of
the alleged deprivation.” Soto, 103 F.3d at 1062. Although I find that the Plaintiff has
not established that he suffered any constitutional violation, I also conclude that his
claims fail for the independent reason that he has not shown that the challenged
conduct was attributable to either the Attorney General or the City.
A.

Attorney General’s Motion for Summary Judgment

The Attorney General argues that he is also entitled to summary judgment on
Mr. March’s constitutional claims because the Attorney General has not enforced the
Noise Provision against Mr. March or caused the Noise Provision to be enforced
against him. AG’s Mot. 5–7 (ECF No. 162). Put another way, Mr. March attempts to
bring an as-applied challenge against a party who has not applied the law to him. Mr.
March responds that the Attorney General is the only state actor responsible for
prosecuting and exercising prosecutorial discretion over reported violations of the
39

Noise Provision, and he cites a Maine Superior Court case where the Attorney
General brought an action against another protester. Pl.’s Opp’n AG’s Mot. 4–5 (ECF
No. 169). Mr. March also maintains that “Portland must work in concert with” the
Attorney General to enforce the Noise Provision because the Attorney General
prosecutes violations. Pl.’s Opp’n AG’s Mot. 5.
It is undisputed that Mr. March has not been referred to the Attorney General,
much less prosecuted by him. AG’s Mot. Facts ¶ 13. Moreover, the Attorney General’s
office had no conversations about Mr. March’s protests with the City of Portland, its
Police Department, or Health Center employees. AG’s Mot. Facts ¶ 19. The record
does not show that the Attorney General was involved in the application of the Noise
Provision to Mr. March in any way. In the absence of either legal authority or
disputed facts about the Attorney General’s role in applying or coordinating the
application of the Noise Provision, I conclude that there is no evidence that the
Attorney General caused a deprivation of Mr. March’s free speech or equal protection
rights. Accordingly, even if Mr. March could establish a constitutional violation, the
Attorney General would be entitled to summary judgment on Mr. March’s as-applied
free speech and equal protection claims.
B.

Motions for Summary Judgment on Claims Against the City

As discussed above, Mr. March faces an additional hurdle in attempting to hold
the City liable for any constitutional violation under § 1983. In particular, he must
show that “official municipal policy of some nature caused [the] constitutional tort.”
Monell, 436 U.S. at 691. This means that at trial Mr. March “bears the burden of
showing that, ‘through its deliberate conduct, [the City] was the moving force behind
40

the injury alleged.’ ” Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011) (quoting
Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 530 U.S. 397, 404 (1997)) (internal
quotation omitted). In other words, there must be “a direct causal link between a
municipal policy or custom and the alleged constitutional deprivation.” City of Canton
v. Harris, 489 U.S. 378, 385 (1989); see also Young, 404 F.3d at 26 (emphasizing that
(1) “the municipal policy or custom [must] actually have caused the plaintiff’s injury”
and (2) “the municipality [must have] possessed the requisite level of fault, which is
generally labeled in these sorts of cases as ‘deliberate indifference’ ”) (citations
omitted). 32

The First Circuit has not decided whether, and in what circumstances, municipal enforcement
of state law can be a municipal policy under § 1983. See Martin v. Gross, 340 F. Supp. 3d 87, 99 (D.
Mass. 2018). A concurrence in Yeo v. Town of Lexington, suggests that a municipal policy that is taken
in “good faith reliance upon state law . . . cannot give rise to municipal liability under § 1983.” 131
F.3d 241, 257 (1st Cir. 1997) (Stahl, J., concurring) (citing Surplus Store & Exch., Inc. v. City of Delphi,
928 F.2d 788, 791–92 (7th Cir. 1991)).
In Snyder v. King, the Seventh Circuit rejected § 1983 municipal liability where a county voter
registration board, acting pursuant to state law, removed an individual convicted of a misdemeanor
from the voter rolls. 745 F.3d 242, 243–44 (7th Cir. 2014). The court held that there was no “direct
causal link” between a county policy and any deprivation of federal right because “the only local
government ‘policy’ at issue [was] general compliance with the dictates of state law.” Id. at 247. The
court relied in part on Surplus Store & Exchange, Inc. v. City of Delphi, in which the Seventh Circuit
wrote, “It is difficult to imagine a municipal policy more innocuous and constitutionally permissible,
and whose causal connection to the alleged violation is more attenuated, than the ‘policy’ of enforcing
state law.” 928 F.2d at 791.
However, in Vives v. City of New York, the Second Circuit held that the existence of a municipal
policy depends on “(1) whether the City had a meaningful choice as to whether it would enforce [the
statute in question]; and (2) if so, whether the City adopted a discrete policy to enforce [the statute in
question] that represented a conscious choice by a municipal policymaker.” 524 F.3d 346, 353 (2d Cir.
2008); see also Martin, 340 F. Supp. 3d at 99. Mr. March has not developed any argument as to whether
the City had a “meaningful choice” to enforce the Noise Provision or whether the letters and emails
reflected “a conscious choice” by the City to enforce the Noise Provision in a certain way. In fact, he
makes no effort to distinguish this case from Snyder or to liken it to any other relevant case. However,
for the sake of deciding these motions for summary judgment, I assume that the City had some policy
or custom in place.
32

41

Mr. March asserts that the various letters and emails from City officials
constitute a municipal policy 33 that:
it is good enough for Planned Parenthood to merely allege that they
heard noise within the Planned Parenthood facility (a misinterpretation
of the MCRA) and at most to offer a notion that any alleged noise is
somehow affecting undisclosed medical procedures being administered
to unnamed patients within an unidentified section of the Planned
Parenthood facility (also a misinterpretation of MCRA).
Pl.’s Mot. 10. The Plaintiff focuses in on the Planned Parenthood OT Detail
Instructions distributed by Commander Rogers in January of 2016 as support for a
City policy. 34 Those instructions state:
If you are notified by PPH staff that someone is so loud they are
interfering with the safe and effective delivery of health services you will
need to warn the person who is too loud and explain to them what they
are being warned for as well as the consequences for continuing. (you do
not need to be the one to hear if it is too loud inside, if they say it is too
loud that is good enough.)
JSR Ex. 22-A.
The City makes the persuasive point that these instructions could not have
been the moving force behind any violation of the Plaintiff’s rights because they were

The Plaintiff acknowledges that in order for the City to be held liable he would need to
establish that the City had a policy or custom that was the “moving force” behind the violation of his
constitutional rights or that a single decision by a municipal official with final policy-making authority
constituted official policy. Pl.s’ Mot. 8–10. The Plaintiff does not develop either an argument that the
City had some custom that constituted municipal policy or an argument that someone with final policymaking authority made a decision that constituted City policy.
33

34
In his opposition to the City’s motion, Mr. March appears to also argue that earlier letters and
emails from Portland police officials adopted a policy of enforcing the Noise Provision whenever a
protester’s voice could be heard within the Health Center, whether or not the speech was interfering
with the provision of health care services. See Pl.’s Am. Opp’n City’s Mot. 6–7. Assuming that this is
true and that those documents constituted a municipal policy, the Plaintiff’s argument would still fail.
There is no evidence that such a policy caused a constitutional violation because there is no evidence
that officers enforced the Noise Provision against Mr. March without a complaint that he was in fact
interfering with the provision of health care services.

42

not provided to the officers until January of 2016—a month after the last event
alleged by Mr. March in his Amended Complaint. City’s Opp’n 8 (ECF No. 173).
Although I could hypothesize a scenario where these instructions memorialized a
custom that developed among the officers of relying solely on the uncorroborated
report of Health Center staff, the problem with this hypothetical argument is that it
is not supported by the record.
The record contains evidence that Health Center staff complained about Mr.
March on four occasions.
•

On November 6, 2015, Officer Nadeau, after hearing Mr. March from at least
half a block away, asked Mr. March to bring his volume down. Mr. March
agreed to lower his volume, and he continued to speak at a level that was
clearly audible to the people around him. JSR Exs. 3 and 4. Major Krier later
gave Mr. March his only formal warning under the MCRA. JSR Ex. 7.

•

On November 13, 2015, Lt. Preis and Officer Argitis responded to the Health
Center to discuss a complaint made by Planned Parenthood staff that Mr.
March could be heard within the examination room and was disturbing staff
and unidentified patients. The report reflects that the protesters had moved
on by the time the police arrived and indicates that Planned Parenthood staff
could not indicate how their awareness of the protest “constituted an
interference with their delivery of health care services.” No further action was
taken. JSR Ex. 19 at 14–16.

43

•

On December 4, 2015, Officer Hults, after speaking with someone from
Planned Parenthood told Mr. March that he was being too loud. Mr. March
asked to speak to Officer Hults’ supervisor. Lt. Preis 35 responded to the scene
and told Mr. March that they were not telling him that he could not speak at
all and that he did not appear to be speaking too loudly. Mr. March was allowed
to continue speaking, and no further action was taken. JSR Ex. 6.

•

On December 11, 2015, Officer Hults told Mr. March that Planned Parenthood
staff could hear him from inside. Officer Hults indicated that he had also heard
Mr. March from inside the Planned Parenthood offices. Officer Hults merely
asked Mr. March to lower his volume. Mr. March was allowed to continue to
speak at a level audible to those around him, and no further action was taken.
JSR Ex. 5.

The facts simply do not establish a custom of enforcing the Noise Provision whenever
Health Center staff complained, which is fatal to the theory that Commander
Rogers’s email reflected a preexisting custom by the Portland Police to enforce the
Noise Provision on the say-so of Health Center staff.

35
The Plaintiff could be asserting that Lt. Preis was acting pursuant to an unconstitutional City
policy when Lt. Preis indicated that officers enforced the Noise Provision based on a “combination” of
content and volume. JSR Ex. 6. There are two problems with this argument. First, Lt. Preis was
articulating the standard that was subsequently endorsed by the First Circuit. See March v. Mills, 867
F.3d 46, 67 (1st Cir. 2017). Second, at the next encounter on December 11, 2015, Officer Hults
reiterated that the City’s focus was on the volume of the speaker. See JSR Ex. 5 (March: “[Lt. Preis]
told me it was content and not volume. You’re telling me its volume and not content. Who am I
supposed to listen to?” Hults: “I think he flipped it. I don’t know. But I’m saying it it’s volume, and
they can hear it, then it’s a problem.”). Mr. March has not developed any argument about how a oneoff comment by Lt. Preis could subject the City to Monell liability—particularly when he has provided
no evidence that Lt. Preis even acted based solely on the content of Mr. March’s speech.

44

For similar reasons, to the extent that Mr. March is asserting that he was
dissuaded from protesting because he feared enforcement of the Noise Provision, he
fails to point to any City policy or action that could be said to have caused such fear.
He admits that his claims “all arise out of” his interactions with Portland Police
officers in November and December of 2015. Pl.’s Mot. Facts ¶ 71. Yet, at each
encounter, officers gave specific guidance on how loud Mr. March could protest,
always permitting him to continue protesting at a volume that could easily be heard
by others on the street.
Moreover, as noted above, Mr. March continued to protest outside of the Health
Center at least twenty times between December of 2015 and April of 2016. He offers
no explanation as to why the November and December interactions—or any City
policy—chilled his speech months later. 36 I decline to venture a guess. See RiveraGomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (“Judges are not expected to be
mindreaders. Consequently, a litigant has an obligation to spell out its arguments
squarely and distinctly or else forever hold its peace.”) (citations and internal
quotation marks omitted).

36
Moreover, Mr. March has not developed any argument that his speech was unconstitutionally
chilled as a result of the January 2016 email from Commander Rogers. Mr. March points to no evidence
that officers have acted pursuant to those instructions or even that he stopped protesting because of
concerns about them. In fact, he states in his own statement of facts that he has ceased protesting
outside of the Health Center because “he fears that if he continues to do so he will be prosecuted
criminally or civilly,” and he explains that this fear “is the result of actions taken by Portland police
officers pursuant to Portland’s policies for enforcing the MCRA in front of the [Health Center.]” Pl.’s
Mot. Facts ¶¶ 69–70. As he identifies no actions taken by officers pursuant to an alleged policy that
postdates the encounters identified in his Complaint, I decline to hypothesize that the January 2016
email itself caused him to cease protesting.

45

For these reasons, even if Mr. March could show that his constitutional rights
were violated and even if he could show that the City had a discrete policy for
enforcing the Noise Provision, he cannot establish that the City is liable under § 1983
because the undisputed facts establish that any such policy was not the cause of any
such constitutional violation.
CONCLUSION
For the reasons stated above, the Court GRANTS the Attorney General’s
motion for summary judgment (ECF No. 162), GRANTS the City of Portland’s motion
for summary judgment (ECF No. 163), and DENIES Mr. March’s motion for
summary judgment (ECF No. 165). Because I grant the Defendants’ motions for
summary judgment on all counts, the Clerk is directed to enter final judgment for the
Defendants.

SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 28th day of April, 2020.

46

APPENDIX A
November 6, 2015 Encounter between Officer Nadeau and Mr. March
March:
Nadeau:
Unknown:
Nadeau:
March:
Nadeau:
March:
Unknown:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
Unknown:
March:
Nadeau:
March:
Nadeau:
Unknown:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:

This is life and death.
We’re here because—only one of you really needs to take a picture. You
don’t need all three of you.
We want to make sure we get all the angles.
Okay. We’re here because they called in a complaint that they could
hear you from the inside.
I understand.
I’m guessing it’s probably you, right?
I mean, I don’t know. Maybe.
We’re not inside, sir. We don’t know.
Okay. When I rolled up, I could hear you from back there, okay?
Is there an actual noise ordinance? Do, do this for me. Give me an
objective volume level that I can speak at.
Unfortunately, there is no objective volume level. If they say they can
hear it inside, in there, then that becomes a complaint.
Is that, is that some ordinance or whatnot?
Ya.
So can I complain against them?
For?
For executing my fellow citizens.
I already told you there’s nothing I can do about that as a police officer.
Okay. What’s the First Amendment. I was born in Jamaica. What is it?
You know what the First Amendment is. Okay? I’m just. I’m just
talking to you. Okay?
Alright, fair, fair.
Is that fair?
Alright, I apologize, I apologize.
Do you think you could keep it down?
Let’s talk like men. Define to me what “keep it down” is. That’s the
question. Like you understand what I’m saying? I need an objective
standard so that I can honor what you’re saying, but then speak.
If you can bring your voice down so that they can’t hear you inside.
How do we know they can hear us inside?
How do I know whether they can hear me or not?
You can bring it down from where you’re at right now or go from there.
Do you believe that that’s logical, that makes sense?
Yeah.
That it’s constitutional?
I believe you can bring it down.
Oh, I’m agreeing with you. What I’m saying is can’t they just call you
back and say they can still hear me? How can you quantify that? I’m
not trying to play with you . . . I’m just sayin’. . .
Okay. Okay.
Let’s work with each other.
Listen, listen I’m here for a noise complaint.
I hear you.
They say that they can hear you.
I understand,
See where I’m coming from?

47

March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:
Nadeau:
March:

No, I get you, bro. I get you.
I’m not trying to give you a hard time. I’m not trying to move you guys
out of here. I know you guys have to be here.
I do.
But when they call in a complaint, I have to come talk to you.
I’m with you.
Okay?
Okay, what I’m saying is, what I’m saying is, give me a way to continue
to speak my convictions while honoring what you’re saying.
Just bring your voice down a little. Can you do that?
Okay. Roger that. I will bring my voice down a little.
Okay. Is that good?
I will do that.
Can I get your name?
I will do that for you.
Wanna give me your name?
No, I don’t wanna to that.
Okay. Thank you for your time sir.
Hey, let me ask you one more question.
What’s that?
Actually, two more questions. Couldn’t they lie and say they can still
hear me and you would have to come back here?
I’m sure they could, yes.
So then what is the point of this entire discussion?
The point is . . .
Because you and I both know they just want to silence us.
Yes. I know that. And so I’m just talking to you.
So, what I’m saying is what’s the point of the discussion because as
soon as you leave, you know, it doesn’t matter if I’m whispering, they’re
still going to say that they can hear me.
When somebody comes to make a complaint to me, I have to talk to the
other person.
Let me ask you one last question.
What’s that?
What’s being aborted up there?
You know I can’t help you with that.
I don’t need your help. I just . . .
There’s nothing I can do as a police officer.
I’m not saying you can do anything. I’m just saying can you answer the
question?

[Officer Nadeau walks away]

48

APPENDIX B
November 6, 2015 Encounter between Major Krier and Mr. March
Krier:
March:

I just
I wasn’t warned about anything. He said he was just asking me for a
favor.
Krier:
Oh. Well . . .
March:
Are you officially warning me now?
Krier:
About noise, ya. All’s I’m doing is I’m letting you know what it’s all
about. This is the Maine Civil Rights Act. [Krier holds up paper]
March:
Um hmm. [March takes paper.]
Krier:
Okay, so that’s straight from the law about what this is about, about
why we are here. Nothing more than that. And, and . . .
March:
You took a, you took a class in criminal justice . . .
Krier:
I’m not going to get into
March:
No, no, no, let me finish, let me finish . . .
[unintelligible talking over one another]
Krier:
That’s the law.
March:
What I’m saying is I’m completely ignorant. So I need you to explain.
Krier:
Nope.
March:
Let me just, let me just . . .
Krier:
It’s written so that you can understand.
March:
I can’t. So I need you to define . . .
Krier:
No, you can talk to a lawyer.
March:
So, you’re saying you’re not going to define it.
Krier:
No, I’m not, no.
March:
You’re just going to give me the paper and not going to explain it?
Krier:
That’s correct, yes, because it’s all self-explanatory.
March:
What does it mean to jeopardize the health of a person?
Krier:
You can talk to an attorney and get that.
March:
We have attorneys. I understand that.
Krier:
Okay. Then fine. Then you don’t need me. You’re all set. Thank you
very much.
March:
Okay sir. Have a great day. God bless you.
[Major Krier walks away.]
Unknown:
So is…was that a formal warning?

49

APPENDIX C
December 4, 2015 Encounter between Lt. Preis and Mr. March
Preis:
March:
Preis:
March:
Preis:
March:
Preis:
March:

Preis:
March:
Preis:

March:
Preis:
March:
Preis:
March:
Preis:
March:
Preis:
March:
Preis:

Hi Andrew.
Hey, how’s it going?
Good.
Long time no see.
Lt. Preis. How are ya? Did you have any questions? They said you
might have a question about the Maine Civil Rights Act?
Well, what he said to me was, that, when the nice young lady
complained about noise, I said, tell me how much I should speak
because, surely, he’s not telling me I can’t speak at all?
Absolutely not.
Right, because we all know this is the United States. You believe in the
Constitution. So, what I’m saying is, I asked the officer to tell me
exactly how loud I should speak so that I could exercise my
constitutional rights. You know what’s ironic is I saw a bunch of kids
about an hour ago, yelling about climate control and all that, and we
were actually, you guys were actually helping them. So, it’s curious to
me, they were much louder than I was. We have that on video as well.
Well, frankly, I don’t think you are being very loud right now, based on
what I’m seeing.
I agree with you. I haven’t changed my volume at all.
Right. But the Maine Civil Rights Act does talk about if they can
articulate that noise and specifically the type of speech and what’s
being said is interfering with a medical procedure, that’s where the
problem could be and that’s very gray. You know what I mean? That’s
very gray. And I understand your frustration with that.
I’m not frustrated at all.
Well, I understand what you’re saying that you hear other noise that’s
louder and that may be. It’s not based on a decibel level.
So, what you just said was the content of what I am saying is really the
problem.
It’s a combination. And if they can—the complainant can articulate
that its interfering with . . .
Officer Preis [mispronounces]
Preis.
Preis, my apologies. What you just said to me was that it is not
necessarily my volume level because we just conceded that there was
a parade here . . .
That’s correct.
filled with hundreds of kids which must have outdid me. But it’s the
content of what I’m saying.
There, there is, there is, there is in the Maine Civil Rights Act,
language that articulates that if what somebody, the noise that
somebody’s making, which could be content, interferes with the ability
of somebody to deliver medical services that could be a problem. I’m
not saying you’re doing that. I’m just letting you know that those are
the things that we’re dealing with and I know you’re somewhat
familiar that the Attorney General was investigating another

50

March:
Preis:
March:
Preis:
March:
Preis:
March:

Preis:
March:
Preis:
March:

Preis:
March:
Preis:
March:
Preis:
March:
Preis:
March:
Preis:
March:

Preis:

gentleman out here, rightly or wrongly, you know, I can’t give an
opinion on that. I’m just telling you what’s happening. And so . . .
Look, listen, listen I understand the position that you’re in.
It’s not a simple one.
You gotta do your job.
Ya.
But here’s the deal, I gotta do my job. But here’s what I’m saying to
you.
Sure.
There is no way in the world as far as when you put content into the
equation there is no way in the world that she’s gonna be happy with
the content of what I’m saying. [unintelligible] against her
organization.
Right.
So, so what I’m saying is we have got to find an objective means for me
to exercise my right of free speech and honor you at the same time.
I agree with you.
That’s what I have been asking for for weeks. I’ve been absolutely
imploring you, begging you, please tell me what I can do so that you
don’t have to keep getting put in these situations. I’m sure you didn’t
join the force so that you can harass me.
And I hope you don’t feel like I’m harassing you because that’s not my
intent at all. I’m just talking.
Like I said, we’re both two guys in a situation where it’s kind of an
impossible situation. Because I understand that the minute she says
something that you have to go and whatnot. I understand.
Well, have you reached out to the Attorney General’s Office at all?
Talked to them?
I’m not going to comment on that.
Okay. That would be something that I would recommend if you’re
trying to come up with something, a middle ground, that, not even a
middle ground, that’s not a good way to say it.
[Greets passerby.] Go ahead, I’m sorry. I’m sorry.
That would be something I would suggest. Maybe you talking to the
Attorney General’s office and work something out if you can.
Well, well, we’re going to work something out, for sure. What I’m
asking you guys is tell me what I can do to honor your request because
I’m not going to stop speaking.
Alright. I understand.
So, so, so I got deployed here by King Jesus. I gotta talk, right? So
you’re deployed somewhere, you gotta go . . . it’s the same thing with
me. So, I need you to explain to me what I can do right now in the next
five minutes because I’m not going to stop.
What you’re doing right now [video ends midsentence].

51

APPENDIX D
December 11, 2015 Encounter between Officer Hults and Mr. March
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:

March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:

What’s up officer?
You’re being heard upstairs so they want you to quiet down a little,
okay?
Whose they?
Meredith and also there’s a patient up there too. I can’t give you her
name, so, it’s a HIPAA thing. Alright, so, I’m just going to ask you to
quiet down, okay?
Let me try to understand this. There’s a woman up there about to
murder her child, and they’re, they’re upset at me because they can
hear me?
Yup. They can just hear you upstairs.
Okay, Officer Hults, do I have the freedom of speech in my nation?
You do. But I already told you it’s not content, it’s volume. That’s what
we’re concerned with right here.
Well, you remember, you remember when Preis came here right?
When who?
Preis, you’re supervisor.
Yes, I remember.
He told me the exact opposite, didn’t he?
Right now, what’s going on is a gray area, and, yeah, we can’t, right
now with the current situation we’re having is fine, but when they can
hear you upstairs and we get a complaint, we just have to ask you to
quiet down.
Hults, Hults, you remember that Preis told me the exact opposite of
what you told me?
What did he tell you, do you remember?
He told me it was content and not volume. You’re telling me its volume
and not content. Who am I supposed to listen to?
I think he flipped it. I don’t know. But I’m saying if it’s volume, and
they can hear it, then it’s a problem.
You’re telling me that I need to restrict my civil rights because they’re
complaining about it, is that what you’re saying?
I’m asking you to quiet down, that’s all.
I’m saying, are you telling me to restrict my civil rights?
I’m not telling you. I’m just asking you to quiet down.
What happens if I don’t quiet down?
I write up a report, we take a complaint, it goes to the Attorney
General. Easy as that.
I’m not going to quiet down, Officer Hults, unless you tell me a
definitive volume level that I need to speak at.
No.
Is there a definitive volume level that I can speak at?
Right now is fine.
Okay, well, I’m just going to keep going.
Sure, go for it.
I get harassed every week by them. I don’t have any hard feelings
against you Officer Hults. But honestly, every single week I get
harassed by you guys. [March’s volume is increasing.] All I’m trying to
do is exercise my civil rights. That’s all I’m trying to do. Now what’s

52

interesting to me is that they call this thing, what is it, the Maine Civil
Rights Act, or whatever? And you’re using the Maine Civil Rights Act
to deny me of my civil rights. You don’t see the irony in that?
Hults:
I’m not using it, because I haven’t done anything about it yet. I’m just
asking you to quiet down. Cause I also said though, we don’t really use
this law too much, but there is a thing called disorderly conduct and
that’s using loud noise in a private/public place that can be heard in a
private/public place. That’s actually a crime.
March:
Are you, are you threatening me?
Hults:
I’m not threatening you, no.
March:
Oh.
Hults:
I’m just saying we haven’t asked, we haven’t been told to go down that
route yet, okay, but if it’s loud . . .
March:
Why
Hults:
if it’s loud enough
March:
Why are you even bringing it up if you’re not threatening me with it?
Hults:
I’m not threatening you. Do you feel threatened?
March:
Well, I feel harassed to be honest with you.
Hults:
Okay.
March:
Cause every week I come out here, and then every week you tell me to
quiet down, then I say what exactly do I need to say and then you never
tell me.
Hults:
You can say whatever you want, okay? But it’s just—if you do it loud
enough that’s when it’s a problem.
March:
Okay, well and then you’re not giving me an actual volume level.
Hults:
I’ve already explained to you that we don’t have any definitive volume
level, but if someone else can hear it, especially in the building that’s
upstairs, that’s when it’s a problem. Because it’s not just an office, but
it’s residences too. That’s the issue, okay?
March:
Well it’s interesting to me that you never talk until the lady in the blue
comes down.
Hults:
I don’t [unintelligible] enforce it until I have a complaint. That’s how it
works.
[passerby speaks with Officer Hults]
March:
By the way, what time is it? Whose got a watch:
Hults:
11:18
March:
Well, you know, my stop time is 11:30, so until you give me something
definitive, I’m going to keep going. But I really—I really wish you’d
give me something definitive so we could continue because this is
amazing. I have got civil rights to speak. You’re impeding on my civil
rights, you realize that?
Hults:
No, I’m not.
March:
Okay.
Hults:
I’m just asking you to quiet down. I’m not telling you to stop talking;
I’m just asking you if you can not be loud. It’s that easy.
March:
Well I don’t . . .
Hults:
That’s pretty reasonable.
March:
I don’t think I’m being, I don’t think I’m being too loud. You know,
we’ve had this conversation before. These individuals, I’m always
gonna be too loud for these individuals.
Hults:
I get that. But the thing is that . . .
March:
You get that?

53

Hults:

March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
March:
Hults:
[End of video.]

Well because we’re right next to each other, yeah, I understand that.
When I go upstairs, I can hear you. That’s when it’s a problem.
[Unintelligible]. People who have to move back because they’re having
an exam right in this other room [gestures], and they don’t feel
comfortable because they can hear you. You are being distracting.
Well, you’re agreeing with me that they are never going to be
comfortable with anything I’m saying or how loud I’m saying. You and
I both know they want me off the street, period. Right?
You know, you’re probably, yeah. They probably just want you gone,
but they’re . . .
So officer, if I lower my tone and they come out here again, and you tell
me to lower my tone again, when is it going to stop?
I don’t know man. I really don’t know.
See what I’m saying?
I do.
They, so they constantly come down here no matter what my tone is,
right?
If I go up there and I can’t hear anything, I can say, ‘you know what, I
don’t see a problem right here.’
Hults, you came out here and gave me the thumbs up twenty minutes
ago.
No, I asked you like I was doing the signal. Remember the signal
[gestures with his hand] we have, the thing we had arranged? Okay,
this is not, this is a little bit too loud because they were complaining.
I got ten minutes left.
Okay.
You’re just going to have to deal with me for the next ten minutes.
No problem.
But we really gotta figure this out man.
Okay, we can try.
I’m trying, I’m working with you man. I just . . . a little frustrating.
I appreciate it. I appreciate it.

54