Kean v. Manchester et al

Filing 17

/// ORDER granting in part 10 Defendants' Motion for Summary Judgment. Judgment shall be entered in favor of the defendants on counts two, four and six. The court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims, which are dismissed without prejudice. So Ordered by Judge Steven J. McAuliffe.(jbw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christopher Kean,
Plaintiff
v.

Case No. 14-cv-428-SM
Opinion No. 2016 DNH 022

City of Manchester;
Manchester Police Department;
Chief David J. Mara; and
Officer Kelly L. McKenney,
Defendants
O R D E R
In September of 2012, plaintiff, Christopher Kean, was
arrested and charged with impersonating a police officer, in
violation of N.H. Revised Statutes Annotated (“RSA”) 104:28-a.
He was subsequently acquitted of that charge.

Kean then filed

this suit against the arresting officer, Chief of Police David
Mara, the Manchester Police Department, and the City of
Manchester, seeking compensatory and punitive damages, as well as
attorney’s fees, for alleged violations of his First and Fourth
Amendment rights.
claims.

He also advances various state common law tort

Finally, he seeks injunctive relief, in the form of an

order compelling defendants to return a police-style jacket that
was seized from him.

By order dated March 30, 2015, the court granted defendants’
motion for judgment on the pleadings as to counts one, three,

five, and eight of Kean’s complaint.

Defendants now move for

summary judgment on the remaining claims.

Plaintiff objects.

Standard of Review
When ruling on a motion for summary judgment, the court must
“constru[e] the record in the light most favorable to the
nonmoving party and resolv[e] all reasonable inferences in that
party’s favor.”
(1st Cir. 2014).

Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301
Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties’ positions on the issue are supported
by conflicting evidence.”

Int’l Ass’n of Machinists & Aerospace

Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted).
71, 76 (1st Cir. 2011).

See also Nolan v. CN8, 656 F.3d

Nevertheless, if the non-moving party’s

“evidence is merely colorable, or is not significantly
probative,” no genuine dispute as to a material fact has been
proved, and “summary judgment may be granted.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations
omitted).

2

Background
Viewed in the light most favorable to Kean, as they must be
at this stage, the relevant facts are as follows.1
avid collector of police memorabilia.
Exhibit D (“Kean Aff.”)¶ 2.)

Kean is an

(Obj. to Summary Judgment,

In 2012, a former Manchester police

officer gave Kean a Manchester Police Department (“MPD” or
“Department”) jacket.

(Id. at ¶ 3.)

The jacket, which was like

those issued by the MPD from 1995 to 1999 to officers for wear in
colder weather, is navy blue with a fur collar, silver buttons
and an official Manchester Police Department patch on the left
shoulder.

(Obj. to Summary Judgment, Exhibit A (“Biron Dep.”)

21:15-18.)

Kean does not contest the fact that the same MPD

patch is currently in use by the Department.

On September 4, 2012, Kean was wearing the jacket as he
walked from his home to a local convenience store.
¶ 4.)

(Kean Aff.

Along with the jacket, which was unbuttoned, he wore

jeans, a t-shirt bearing the name of his company, and work
boots.2

(Kean Aff. ¶ 6.)

As Kean walked past the Kelley Street

1

Kean’s version of the facts differs somewhat from the
New Hampshire Supreme Court’s recitation in State v. Kean, 122
A.3d 982, 983 (N.H. 2015).
2

In September 2012, the MPD standard issue uniform
consisted of a navy blue shirt with the MPD patch affixed to the
left shoulder and “MPD” embroidered on the collar, a silver name
tag and badge, a black leather duty belt with silver buttons,
navy blue pants with a stripe down the side, and black shoes.
3

Police Substation, Officer Christopher Biron saw him wearing the
jacket and mistook him for a member of the MPD.

(Mot. for

Summary Judgment, Exhibit A (“Biron Aff.”) ¶ 4.)

After he

determined that Kean was not a member of the Department, Biron
approached Kean and asked him why he was wearing the jacket.
(Biron Dep. 23:9-10.)

Kean responded that he collected police

memorabilia and that he had been given the jacket by a former
customer. (Kean Aff. ¶ 8.)

He told Biron that he displayed his

police memorabilia by wearing it.

(Id.)

Biron then explained that because Kean was wearing the
jacket, Biron had mistaken him for a member of the MPD.
Dep. 24:14-18; see also Kean Aff. ¶ 7.)

(Biron

Officer Biron told Kean

that, while his possession of the jacket was not problematic,
Kean could be mistaken for a member of the MPD while wearing it
in public.
danger.

That, said Officer Biron, could expose him to risk of

(Kean Aff. ¶ 7.; see also Biron Dep. 24:1-18)

Biron

also told Kean that, if he continued to wear the jacket, he could
be arrested for false personation of an officer.

(Biron Dep.

25:3-9.)

(Biron Dep. at 11:3-16.) The standard issue jacket was a navy
blue zip-up jacket, with an embroidered badge on the left breast,
embroidered name tag on the right breast and the MPD patch on
the left shoulder. (Id. at 12:1-10.)
4

Upon returning home, Kean spoke with his lawyer, who advised
him that wearing the jacket in public did not constitute a
criminal offense because, to violate the false personation
statute, Kean would have to intend to be recognized as a police
officer.3

(Kean Aff. ¶ 9.)

Kean then determined that he would

continue to wear the jacket in public, because, “[he] had a right
to do so, not because [he] intended to be recognized as a police
officer.”

(Kean Aff. ¶ 9.)

Officer Biron documented the encounter with Kean and radioed
police dispatch, sending a broadcast message to other MPD
officers that Kean was wearing a police jacket and that if Kean
continued to wear the jacket, he could be arrested for false
personation.

(Biron Dep. 27:7-9; 29:12-15; 31:3-7.)

Finally,

Biron emailed Captain Robert Cunha, who was at that time the head

3

The New Hampshire false personation statute provides

that:
Any person who knowingly and falsely assumes or
exercises the functions, powers, duties, or privileges
incident to the office of sheriff, deputy sheriff,
state police officer, police officer of any city or
town, or any other law enforcement officer or
investigator employed by any state, country or
political subdivision of a state or country, or who
wears or displays without authority any uniform, badge,
or other identification by which such sheriff, officer,
or investigator is lawfully identified, and with the
intent to be recognized as such, shall be guilty of a
class B felony.
N.H. Rev. Stat. Ann. § 104:28-a.
5

of the MPD Legal Division, requesting information on the false
personation statute.

(Biron Dep. 27:7-28:7.)

Captain Cunha

promptly sent Biron the language of the statute, noting, “The
challenge . . . would be proving the intent to be recognized as a
police officer.”

(Obj. to Summary Judgment, Exhibit 6.)

Biron

did not modify the message he had broadcast to the other
officers.

Biron thought that if Kean continued to wear the

jacket after he had been informed that he had been mistaken for a
police officer and of “the dangers associated with that,” and
after being warned not to wear the jacket for those reasons, Kean
“would have satisfied the intent element of the statute.”

(Biron

Dep. 36:9-16; 37:5-23.)

The outside temperature the next day was 80 degrees, with 62
percent humidity.

(Mot. for Summary Judgment, Exhibit B

(“McKenney Aff.”) ¶ 2.)

Nevertheless, Kean again donned the

police jacket to walk from his home to the local convenience
store.

(Kean Aff. ¶ 10.)

As he had the day before, Kean wore

the jacket unbuttoned, with jeans, a t-shirt bearing his
company’s name, and work boots.

(Id.)

saw Kean walking on Kelley Street.

Officer Kelly McKenney

She had heard Officer Biron’s

dispatch about Kean the day before, and recognized the jacket as
having been issued by the Department in the past.

6

(Obj. to

Summary Judgment, Exhibit B (“McKenny Dep.”) 30:2-20-31:1-6.)
She also noted the warm weather conditions.

(Id. at 29:5-8.)

Officer McKenney followed Kean into the convenience store
and asked if he was Christopher Kean.

(Kean Aff. ¶ 11.)

When

Kean responded that he was, McKenney placed him under arrest for
“false personation,” (known colloquially as “impersonating a
police officer”) in violation of RSA 104:28-a. (Id.)

Kean

protested, to no avail, that his attorney told him that he had
the right to wear the jacket. (Kean Aff. ¶ 11.)

The charges against Kean were initially dismissed in the
Manchester district court, but a Hillsborough County grand jury
returned an indictment charging him with a single count of
violating RSA 104:28-a.

Prior to trial, Kean moved to suppress

evidence – the jacket – arguing that his arrest was not supported
by probable cause, so the jacket was unlawfully seized.
for Summary Judgment, Exhibit 4, p. 1.)

(Mot.

Following a hearing, the

court denied Kean’s motion to suppress, finding that the
“undisputed facts establish that Officer McKenney had probable
cause to arrest” Kean. (Id. at p. 5.)
Kean was acquitted.

7

The case was tried, and

Kean then moved for return of his jacket.
Kean, 122 A.3d 982, 983 (N.H. 2015).

See State v.

Following a hearing, the

state court found that the jacket and the patch were “at all
times the property of the City of Manchester,” in light of a
“Manchester Police Department policy in place that required [such
uniform] items to be ‘turned in’ upon discontinuation or upon the
retirement of an officer.”

Id. at 983, 984-95.

The court

nevertheless ordered the jacket to be returned to Kean, albeit
with the patch removed from the sleeve.

Id.

Kean appealed that

decision to the New Hampshire Supreme Court, which affirmed the
trial court’s determination that Kean had no ownership interest
in the jacket, and also held that the trial court had erred in
ordering that the jacket be returned to Kean after removal of the
patch.

Id. at 985-85.

Remaining in this civil suit are Kean’s Section 1983 claims
for retaliatory and unlawful arrest, in violation of the First
and Fourth Amendments respectively, and a municipal liability
claim.

He also advances state law claims for false imprisonment

and unlawful arrest, vicarious liability (related to the false
imprisonment and unlawful arrest claims) against the City of
Manchester and Chief of Police, and a negligent training and
supervision claim against the City of Manchester and the Chief of
Police.

Defendants argue that they are entitled to summary

8

judgment on all remaining claims because Kean’s arrest was
supported by probable cause, and, alternatively, because
defendants are protected by qualified immunity as well as various
state law immunities.

Discussion
I.

Wrongful Arrest (Count IV)
A.

Probable Cause

According to Kean, Officer McKenney violated his Fourth
Amendment rights by arresting him without probable cause to
believe that he had violated New Hampshire’s false personation
statute.

More specifically, Kean argues that Officer McKenney

did not have probable cause to believe that Kean intended to be
recognized as a police officer, an essential element of the
criminal offense.

Kean made a similar argument in his motion to suppress
evidence before the state superior court, contending that “his
arrest was unlawful because Officer McKenney did not have
probable cause to believe defendant had the specific intent to be
recognized as a police officer.”
Exhibit 4, p. 3.)

(Mot. for Summary Judgment,

The superior court held a hearing on the

motion, at which Officer Biron testified.

Following the hearing,

the trial court issued a well-reasoned decision denying Kean’s

9

motion to suppress, finding that Officer Biron’s testimony was
“credibl[e] and persuasive[]” and that Officer McKenney did have
probable cause to believe Kean intended to be recognized as a
police officer, and so, to arrest him.

(See id. at pp. 3-5.)

Federal courts are bound by state law with respect to the
preclusive effect to be given state judgments.
Noether, 163 F. Supp. 2d 98, 107 (D.N.H. 2001).

Bryant v.
“The New

Hampshire doctrine of collateral estoppel ‘bars a party to a
prior action from relitigating any issue or fact actually
litigated and determined in the prior action’ so long as ‘(1) the
issue subject to estoppel is identical in each action; (2) the
first action resolved the issue finally on the merits; and (3)
the party to be estopped appeared as a party in the first
action.’”

Katz v. McVeigh, 931 F. Supp. 2d 311, 321 (D.N.H.

2013) (quoting In re Michael E., 162 N.H. 520, 523-24 (2011)
(modifications omitted)).

Kean preemptively argues that he is not collaterally
estopped from renewing his probable cause argument again in this
court, because “the Superior Court’s Order was not a final
judgment on the merits.”
Judgment, p. 12.)

(Mem. in Supp. of Obj. to Summary

He argues that, because he was acquitted, the

Superior Court’s order denying the motion to suppress, or finding

10

probable cause, was not appealable, so cannot constitute a “final
judgment.”

The superior court’s order meets the first and third
conditions of New Hampshire’s requirements for application of its
collateral estoppel doctrine.

But, whether that order resolved

the probable cause issue “finally on the merits” is probably
debatable.4

But defendants, who would bear the burden of showing

that the requirements of collateral estoppel are met, are not
seeking its application.

Instead, they merely assert that the

superior court’s order “casts doubt” on Kean’s claim that there

4

See N.H. Sup. Ct. R. 94 (“Objections to the Court's
ruling in advance of trial admitting the evidence shall be
transferred on appeal after trial and not in advance of trial
except in the discretion of the Court in exceptional
circumstances.”); see also Johnson v. Watkins, 101 F.3d 792, 793
(2d Cir. 1996) (“The issue raised is whether collateral estoppel
bars plaintiff from proving his case where probable cause to
arrest him was preliminarily determined at a suppression hearing,
despite his later acquittal at trial. Key to the use of
collateral estoppel in civil litigation is whether there was a
full and fair opportunity to litigate an issue already decided
adversely to one party. Central to a full opportunity to
litigate is whether appellate review of an adverse holding was
available. If not, full and fair litigation was absent and
collateral estoppel does not apply. Since here plaintiff had no
opportunity to appeal the finding of probable cause, the doctrine
of collateral estoppel does not bar suit.”) (applying New York
law); but see Thompson v. Mueller, 976 F. Supp. 762, 766 (N.D.
Ill. 1997) (finding that collateral estoppel barred re-litigation
of probable cause determination in civil action, despite
plaintiff’s acquittal, which precluded appellate review of the
state trial judge’s probable cause determination, where the issue
was throughly litigated) (applying Illinois law).

11

was no probable cause for his arrest.

(Reply Br. in Supp. of

Summary Judgment, p. 4.)

Because defendants do not assert a collateral estoppel bar,
there is no occasion to grapple with Kean’s argument that the
superior court’s order does not resolve the point.

In any event,

the undisputed facts here compel the same conclusion reached by
the superior court.

Probable cause existed for Kean’s arrest.

“An officer may conduct a warrantless arrest as long as
there is ‘probable cause to believe that the suspect has
committed or is committing a crime.’”

United States v. Link, 238

F.3d 106, 109 (1st Cir. 2001) (quoting United States v. Bizier,
111 F.3d 214, 216-217 (1st Cir. 1997) (additional citations
omitted)).

Probable cause “exists if, at the time of the arrest,

the collective knowledge of the officers involved was ‘sufficient
to warrant a prudent person in believing that the defendant had
committed or was committing an offense.’”
111 F.3d at 217).

Id. (quoting Bizier,

“In determining whether the officer had

probable cause, [the court] must view the circumstances from the
perspective of a reasonable person in the position of the
officer.”
2009).

Holder v. Town Of Sandown, 585 F.3d 500, 504 (1st Cir.

“‘The test for probable cause does not require the

officers' conclusion to be ironclad, or even highly probable.

12

Their conclusion that probable cause exists need only be
reasonable.’”

Id. (quoting Acosta v. Ames Dept. Stores, 386 F.3d

5, 11 (1st Cir. 2004).

As stated, “it is the collective knowledge of the officers
involved, not the individual knowledge of the arresting officer,
that is the subject of the probable cause inquiry.”

Giroux v.

Town of Danbury, No. CIV. 06-CV-250-PB, 2008 WL 150655, at *5
(D.N.H. Jan. 15, 2008) (citing U.S. v. Pardue, 385 F.3d 101, 106
(1st Cir. 2004) (emphasis added); see also Morelli v. Webster,
552 F.3d 12, 17 (1st Cir. 2009) (“when an officer who has
probable cause directs an officer who lacks that knowledge to
make the arrest, we impute to the arresting officer the directing
officer’s knowledge”) (quotations and citations omitted).
Therefore, Kean’s “arrest is valid if the collective knowledge of
all the officers involved establishes probable cause for his
arrest.”

Giroux, 2008 WL 150655, at *5.

New Hampshire’s false personation statute reads, in
pertinent part:
Any person who knowingly and falsely . . . wears or
displays without authority any uniform, badge, or other
identification by which such sheriff, officer, or
investigator is lawfully identified, and with the
intent to be recognized as such, shall be guilty of a
class B felony.

13

N.H. Rev. Stat. Ann. § 104:28-a.

Kean violated the false

personation statute if: (1) he was wearing “any uniform, badge or
other identification” by which the MPD was “lawfully identified;”
and (2) he intended to be recognized as an MPD officer.

Id.

The parties do not dispute that, on September 5, 2012, Kean
was knowingly wearing an official but discontinued MPD jacket
with a current MPD patch affixed to the left shoulder.

And,

given the undisputed facts, a reasonable police officer could
have concluded under the circumstances that Kean intended to be
recognized as a police officer.

Significantly, (1) Kean was

informed by Officer Biron on September 4 that Biron had actually
mistaken Kean for a police officer because he was wearing a
police-issued jacket with an official patch;5 (2) Officer Biron
warned Kean that people were likely to confuse him for a police
officer because of the jacket, and that he could be arrested for

5

Kean argues that it was not reasonable for Officer
Biron to mistake him for a police officer, pointing out that: (1)
he was not performing any police functions; (2) he was wearing
civilian clothing underneath the jacket, which is against MPD
policy; and (3) McKenney testified that it would be unusual for
an MPD officer to wear the winter jacket in hot weather. (See
Mem. in Supp. of Obj. to Summary Judgment, p. 9.) But, the false
personation statute does not require that an individual be
“reasonably mistaken” for a law enforcement officer. See N.H.
Rev. Stat. Ann. § 104:28-a. Indeed, Kean himself makes the
point. (See Mem. in Supp. of Obj. to Summary Judgment, p. 7, n.6
(“The statute requires that [Kean] have had the intent to be
recognized as a police officer, not that other people perceive
him to be one.”)).
14

false personation if he continued to wear the jacket; and (3)
despite being told by a police officer that he was likely to be
mistaken for a police officer if he continued to wear the jacket.
In fact, Kean wore the heavy jacket the very next day in 80
degree heat.

Since the weather was inconsistent with the normal

wear of a heavy jacket, a reasonable officer might conclude that
some other purpose was motivating Kean.

In other words, as the superior court stated, “[d]espite
being mistaken by [Officer] Biron for a police officer, and
therefore being put on notice of possible confusion, defendant
insisted on continuing to wear the jacket, apparently for no
practical purpose.”
p. 4.)

(Mot. for Summary Judgment, Exhibit 4,

It is of course true that Kean could well have intended,

as he says, nothing more than to exercise what he believed to be
his right to display an item from his collection of police
memorabilia, or, any number of other innocent purposes for that
matter.

But, it is equally true that a reasonable police officer

could have construed Kean’s actions as evincing a continuing
intent to impersonate an officer (e.g., an off-duty officer) in
disregard of the earlier caution.

As this court has previously

noted, “the inferences the officers drew from the facts available
to them . . . need not have been correct; they need only have
been reasonable.”

Toney v. Perrine, No. CIV 06-CV-327-SM, 2007

15

WL 2688549, at *5 (D.N.H. Sept. 10, 2007).

Officer McKenney’s

conclusion – based on her own observations and the imputed
knowledge of Officer Biron – that Kean was engaged in a violation
of the false personation statute was objectively reasonable, even
if incorrect, and she had probable cause to arrest Kean.

To support his argument that Officer McKenney lacked
probable cause, Kean points to: (1) McKenney’s testimony at
deposition that she did not know Kean’s intentions when she saw
him wearing the jacket; and (2) Kean’s statement to McKenney at
arrest indicating that he did not intend to be recognized as a
police officer.

Neither point is determinative.

As a preliminary matter, Kean misconstrues Officer
McKenney’s testimony.

After making the unremarkable and obvious

point that she could not have definitively known Kean’s
subjective mental state, or intent, when he was arrested,
McKenney testified that she believed Kean intended to be
recognized as a police officer because “[h]e was advised the day
before by Officer Biron that he could be misinterpreted as a
police officer if he wore the jacket.”
45:1-5.)

(McKenney Dep. 44:22-23 -

Continuing to wear the jacket, while not conclusive

evidence of an intent to impersonate, certainly gave rise to a
reasonable inference of Kean’s intent to impersonate.

16

But, even if Officer McKenney’s testimony supported Kean’s
argument, her subjective belief is not dispositive of whether
probable cause existed.

This is because the probable cause

inquiry is an objective one: “actual motive or thought process of
the officer is not plumbed.”
at 504.

Holder v. Town of Sandown, 585 F.3d

Here, the underlying facts support a conclusion that a

reasonable officer would find it likely that Kean’s conduct
evinced a continuing intent to violate the false personation
statute.

As to Kean’s second point, McKenney was not obligated to
credit Kean’s statement at arrest.

Indeed, “[i]t would be nearly

impossible for the police to carry out an arrest if the suspect's
mere denials were enough to extinguish probable cause, especially
in the face of otherwise credible victim testimony and
corroborating evidence.”

Holder v. Town of Newton, No. CIV.

08-CV-197-JL, 2010 WL 432357, at *4 (D.N.H. Feb. 3, 2010); cf.
Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004) (“the practical
restraints on police in the field are greater with respect to
ascertaining intent and, therefore, the latitude accorded to
officers considering the probable cause issue in the context of
mens rea crimes must be correspondingly great.”).

As discussed,

there are sufficient undisputed facts contradicting Kean’s
statement that he did not intend to be recognized as a police

17

officer to support a reasonable officer’s conclusion that Kean
did intend to impersonate an officer.

Because probable cause existed for Kean’s arrest, his
warrantless arrest was lawful.

Defendants are, therefore,

entitled to summary judgment on Kean’s Section 1983 wrongful
arrest claim.

B.

Qualified Immunity

Even if probable cause was absent, so long as the issue was
arguable or subject to legitimate question, Officer McKenney
would be entitled to qualified immunity.

Qualified immunity “protects public officials from civil
liability ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’”

Cox v. Hainey, 391 F.3d at

29 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

A

“defendant ‘is entitled to immunity if a reasonable officer could
have believed that probable cause existed to arrest.’”

Id. at 31

(quoting Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992)).
Therefore, “in the case of a warrantless arrest, if the presence
of probable cause is arguable or subject to legitimate question,
qualified immunity will attach,” and “suit may go forward only if

18

the unlawfulness of the arrest would have been apparent to an
objectively reasonable officer standing in [Officer McKenney’s]
shoes.”

Id. (citations omitted).

See also Glik v. Cunniffe, 655

F.3d 78, 88 (1st Cir. 2011) (“Officers are entitled to qualified
immunity ‘so long as the presence of probable cause is at least
arguable.’” (quoting Ricci v. Urso, 974 F.2d 5, 7 (1st Cir. 1992)
(additional quotations omitted)).

Given the record, the existence of probable cause was, at
the very least, arguable.

Indeed, that conclusion is buttressed

by the superior court’s finding, following an evidentiary
hearing, that probable cause existed.

If the superior court

judge found probable cause, surely an objectively reasonable
officer could have found the issue to be, at the very least,
“arguable.”

It simply cannot be said that a reasonable officer

in McKenney’s shoes would have understood that arresting Kean
would violate his Fourth Amendment rights.

So, even if probable

cause was lacking, Officer McKenney would still be entitled to
qualified immunity from Kean’s Fourth Amendment claim.

II.

Retaliatory Arrest (Count II)
A.

Violation of First Amendment Rights

Kean says he wore the police jacket as an exercise of his
First Amendment right to “expressive conduct.”

19

He says that he

explained to Officer McKenney that he was wearing the jacket
“because his attorney told him he could, and that he liked to
wear the jacket,” and that McKenney arrested him “solely because
he was wearing the jacket.”

(Mem. in Supp. of Obj. to Summary

Judgment, pp. 10, 14.)

To prevail on a First Amendment retaliation claim based upon
a law enforcement officer's actions during an arrest, Kean must
first show that he was engaged in activity protected by the First
Amendment.

Gericke v. Begin, 753 F.3d 1, 6 (1st Cir. 2014)

(“plaintiff's activity must be constitutionally protected in
order to bring a section 1983 claim of First Amendment
retaliation.”).

Next, Kean must “‘show that the officer's intent

or desire to curb the expression was the determining or
motivating factor” for her actions, “in the sense that the
officer would not have [taken those actions] ‘but for’ that
determining factor.’”

Traudt v. Roberts, No. 10-CV-12-JL, 2013

WL 3754862, at *12 (D.N.H. July 15, 2013) (quoting Tatro v.
Kervin, 41 F.3d 9, 18 (1st Cir. 1994)) (emphases removed).

“In evaluating whether allegedly expressive conduct brings
the First Amendment into play, the Supreme Court has focused on
the context in which the conduct took place, asking ‘whether [a]n
intent to convey a particularized message was present, and

20

[whether] the likelihood was great that the message would be
understood by those who [perceived] it.’”

Meaney v. Dever, 326

F.3d 283, 287 (1st Cir. 2003) (quoting Texas v. Johnson, 491 U.S.
397, 404 (1989)).

Kean says his “intended expression was that he

was wearing the jacket because his attorney told him he could,
and that he liked to,” and that he “collected police memorabilia
and that he liked to display the same.”
to Summary Judgment, pp. 10-11.)

(Mem. in Supp. of Obj.

Even assuming Kean meant to

convey a “particularized message,” which is doubtful, it still
seems highly unlikely that anyone who saw Kean wearing the jacket
could possibly understand his intended message – that he liked to
display police memorabilia by wearing it, or that he was wearing
the police jacket because he thought he could.

People who saw

Kean wearing the jacket more likely would conclude, as Officer
Biron had, that he was an officer associated with the Manchester
Police Department.

Nevertheless, even accepting Kean’s point that wearing the
jacket qualifies as protected First Amendment activity, he fails
to point to any facts that would support a conclusion that his
arrest was motivated by Officer McKenney’s desire to curb that
legitimate expression.

To the contrary, the undisputed facts

establish that Kean was arrested not “solely because he was
wearing the jacket” (Mem. in Supp. of Obj. to Summary Judgment,

21

p. 14), but because his wearing the jacket was thought by Officer
McKenney to be unlawful (i.e., false personation of a police
officer).

“I am a Manchester police officer” is certainly one

message likely conveyed or implied by Kean’s wearing the police
jacket, and that is not a message protected by the First
Amendment when it is false.

The only facts Kean points to in support of his claim of
retaliatory animus are his own declarations of intent made to
Officer McKenney and Officer Biron.

But, Kean’s exculpatory

disclaimers do not suggest that Officer McKenney intended to
suppress some legitimate expression.

As already noted, Officer

McKenney could have concluded that Kean’s statements about his
intentions were not credible, given the circumstantial evidence
to the contrary.

See Robinson v. Cook, 706 F.3d 25, 37 (1st

Cir.) cert. denied, 133 S. Ct. 2831, 186 L. Ed. 2d 885 (2013) (“a
reasonable police officer need not credit a suspect's
self-serving statements.”); see also Toney v. Perrine, 2007 WL
2688549, at *4 (“Importantly, the officers were not required to
believe [plaintiff’s] self-serving explanation for his seemingly
suspicious behavior.

‘A reasonable police officer is not

required to credit a suspect's story.’”) (quoting Cox v. Hainey,
391 F.3d at 32 (citing Brady v. Dill, 187 F.3d 104, 112 (1st Cir.
1999))); Paff v. Kaltenbach, 204 F.3d 425, 437 (3d Cir. 2000)

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(“Absent a confession, the officer considering the probable cause
issue in the context of crime requiring a mens rea on the part of
the suspect will always be required to rely on circumstantial
evidence regarding the state of his or her mind . . . we find
nothing in the probable cause jurisprudence that makes it
apparent that [the arresting officer] was required to accept that
assertion at face value.”).

Because Kean has failed to present credible evidence that
his arrest was motivated by Officer McKenney’s desire to curb
protected speech, the defendants are entitled to summary judgment
on Kean’s retaliatory arrest claim.

B.

Qualified Immunity

Again, however, even if Kean had presented credible evidence
supporting his First Amendment claim, Officer McKenney would
still be entitled to qualified immunity.

“When a defendant invokes qualified immunity, ‘t]he
plaintiff bears the burden of demonstrating that the law [the
defendant purportedly violated] was clearly established at the
time of the alleged violation.’”

Dixon v. City of Somersworth,

No. 14-CV-397-LM, 2015 WL 5823963, at *3 (D.N.H. Oct. 5, 2015)
(quoting Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015))

23

(additional citations omitted).

To meet this burden, the

plaintiff must “identify controlling authority or a robust
consensus of persuasive authority such that any reasonable
official in the defendant’s position would have known that the
challenged conduct is illegal in the particular circumstances
that he or she faced - then-existing precedent, in other words,
must have placed the statutory or constitutional question beyond
debate.”

Rivera-Corraliza v. Morales, 794 F.3d 208, 214-15 (1st

Cir. 2015) (citations and internal punctuation omitted).

Kean has not sufficiently identified any “controlling
authority or robust consensus of persuasive authority” suggesting
that, in September of 2012, it was clearly established that he
had a right to be free from a retaliatory arrest that is also
based upon probable cause.

See generally Reichle v. Howards, 132

S. Ct. 2088, 2094 (U.S. 2012) (noting that the Court has never
recognized a “specific right to be free from a retaliatory arrest
that is otherwise supported by probable cause”).

As noted,

Kean’s arrest for false personation of a police officer was
supported by probable cause.

Consequently, even if Kean could

have demonstrated that his arrest violated his First Amendment
rights, Officer McKenny would be entitled to the protections
afforded by qualified immunity on Kean’s retaliation claim.

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IV.

Municipal Liability for Constitutional Violation (Count VI)
Kean argues that the City of Manchester is liable for

Officer McKenney’s purported constitutional violations because it
failed to train its officers with respect to the false
personation statute.

Because Officer McKenney did not violate

Kean’s First and Fourth Amendment rights, the City of Manchester
cannot be liable for having maintained an allegedly
unconstitutional policy regarding officer training.

As the

Supreme Court has observed:
[N]either Monell v. New York City Dept. of Social
Services, 436 U.S. 658 (1978), nor any other of our
cases authorizes the award of damages against a
municipal corporation based on the actions of one of
its officers when in fact the jury has concluded that
the officer inflicted no constitutional harm. 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.
Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (emphasis in
original).

See also Calvi v. Knox County, 470 F.3d 422, 429 (1st

Cir. 2006) (“We need not probe this point too deeply for —
regardless of the training afforded or the lack of training — it
is only when a governmental unit's employee inflicts a
constitutional injury that the governmental unit can be held
liable under section 1983.

It follows that the inadequate

training of a police officer cannot be a basis for municipal

25

liability under section 1983 unless a constitutional injury has
been inflicted by the officer or officers whose training was
allegedly inferior.”) (citations omitted).

Defendants are, therefore, entitled to summary judgment on
Kean’s municipal liability claim.

IV.

Plaintiff’s State Common Law Claims
Having concluded that defendants are entitled to judgment as

a matter of law on all of Kean’s federal claims, the court must
determine whether it is appropriate to exercise supplemental
jurisdiction over his remaining state law claims.
28 U.S.C. § 1367.

See generally

Section 1367 provides that the court may

decline to exercise supplemental jurisdiction over a plaintiff's
state law claim when:
(1)

the claim raises a novel or complex issue of State
law,

(2)

the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,

(3)

the district court has dismissed all claims over
which it has original jurisdiction, or

(4)

in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c) (emphasis supplied).

To assist district

courts, the Court of Appeals for the First Circuit has identified
26

the following additional factors that should be considered when
determining whether to exercise supplemental jurisdiction over
state law claims: (1) the interests of fairness; (2) judicial
economy; (3) convenience; and (4) comity.

See Camelio v.

American Fed'n, 137 F.3d 666, 672 (1st Cir. 1998).

And, with

regard to principles of fairness and comity, the Supreme Court
has observed:
Needless decisions of state law should be avoided both
as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed
reading of applicable law. Certainly, if the federal
claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnote
omitted).

See also Carnegie-Mellon Univ. v. Cohill, 484 U.S.

343, 350 n.7 (1988) ( “[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance of
factors to be considered under the pendent jurisdiction doctrine
— judicial economy, convenience, fairness, and comity — will
point toward declining to exercise jurisdiction over the
remaining state-law claims.”); Rivera-Diaz v. Humana Ins. of
P.R., 748 F.3d 387, 392 (1st Cir. 2014) (upholding district
court's decision declining to exercise supplemental
jurisdiction).

27

Given that all federal claims in Kean’s complaint are
resolved, and taking into account the factors identified in
Camelio, the court declines to exercise supplemental jurisdiction
over Kean’s state law claims.

Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ memoranda, defendants’ motion for summary judgment
(docket no. 10) is granted in part.

Judgment shall be entered in

favor of the defendants on counts two, four and six.

The court

declines to exercise supplemental jurisdiction over plaintiff’s
remaining state law claims, which are dismissed without
prejudice.

The Clerk of Court shall enter judgment in accordance

with this order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
February 4, 2016
cc:

Stephen T. Martin, Esq.
Robert J. Meagher, Esq.

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