Gericke v . Weare P D , et a l . 11-CV-231-SM 10/15/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Carla Gericke, Plaintiff

v. Case N o . 11-cv-231-SM Opinion N o .

Gregory C . Begin; James J. Carney; Joseph Kelley; Brandon Montplaisir; Weare Police Department; and The Town of Weare, New Hampshire, Defendants

O R D E R

In this civil action, Carla Gericke asserts claims under

both the United States Constitution and New Hampshire’s common

law against the Town of Weare, the Weare Police Department, the

department’s Chief (Gregory Begin), and three of its officers:

Lieutenant James Carney, Sergeant Joseph Kelley, and Sergeant

Brandon Montplaisir. Defendants have moved for summary judgment,

asserting that they are entitled to judgment as a matter of law

on each of Gericke’s claims. Gericke objects and has filed a

cross-motion for summary judgment.1

1 After the parties submitted their cross-motions for summary judgment, and following an informal discussion about those pending motions at a pretrial conference, Gericke sought leave to file an amended complaint. The six claims asserted in the amended complaint, reduced from thirty-two, remain essentially unchanged from her original complaint (with one exception). The briefing, and supplemental briefing by the parties is adequate to resolve the summary judgment motions as applied to the remaining claims. For the reasons discussed, defendants’ motions for summary

judgment (documents n o . 19 and 20) are granted in part and denied

in part. Gericke’s motion for summary judgment (document n o . 21)

is denied.

Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party’s favor.” Griggs-Ryan v . Smith,

1 2 , 115

(1st Cir. 1990). 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.” Fed. R. Civ.

P. 56(a). 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.,

(1st

Cir. 1996) (citations omitted).

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.,

4 2 , 249-

2 50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the non-

movant’s ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(c). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore a party’s

bald assertions, unsupported conclusions, and mere speculation.

See Serapion v . Martinez,

8 2 , 987 (1st Cir. 1997). See

also Scott v . Harris,

7 2 , 380 (2007) (“When opposing

parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could

believe i t , a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.”).

Background

On March 2 5 , 2010, Carla Gericke was arrested for disobeying

a police officer. She was subsequently charged with that crime,

as well as with obstructing government administration, and

unlawful interception of oral communications. Immediately prior

to her probable cause hearing in state court, however, those

charges were dropped and the case was referred to the

Hillsborough County Attorney’s office for presentment to a grand

3 jury. New charges were never filed and no indictment was

returned.

The record, as currently developed, includes many affidavits

and a substantial volume of deposition testimony describing the

events giving rise to Gericke’s civil claims. Not surprisingly,

the parties do not agree on all of the details surrounding

Gericke’s arrest. Nevertheless, they do agree on most of the

legally relevant facts, which are as follows.

On March 2 5 , 2010, at approximately 11:30 PM, Sergeant

Joseph Kelley of the Weare Police Department observed a car

traveling past him at a high rate of speed. Using radar

equipment, he determined that the vehicle was traveling at 47 mph

in a 30 mph zone. He initiated a traffic stop and the vehicle

pulled over to the side of the road, near the Weare Middle

School. A second vehicle, driven by Gericke, pulled in directly

behind Sergeant Kelley’s police cruiser and stopped. Given the

lateness of the hour, the darkness, and the presence of four

unknown people at the scene (two drivers and two passengers),

Kelley understandably found Gericke’s presence to be a

distraction, requiring Kelley to divert his attention from the

vehicle he had stopped. Traffic stops, particularly those

conducted late at night, pose a risk of danger to police

4 officers, and Gericke’s presence at least arguably added to that

potentially dangerous situation.

Sergeant Kelley approached Gericke’s vehicle and instructed

her to leave. Gericke initially resisted, saying she was

traveling with the people whom Kelley had stopped. She

questioned why he had detained them, and, when Sergeant Kelley

informed her that they had been speeding, she interjected herself

into the situation by questioning the validity of the stop.

Eventually, however, she complied — she moved her car from

directly behind Kelley’s cruiser into an adjacent parking area,

where she positioned it parallel to the cruiser, about 30 feet

away.

Sergeant Kelley then turned his attention to the driver of

the other car, Tyler Hanslin. Kelley reports that Hanslin was

verbally abusive, also questioned the validity of the stop, and

commented that it was “bullshit.” Hanslin then made some unusual

movements with his hands around the area of his belt, and

Sergeant Kelley asked him if he had any weapons. Hanslin

disclosed that he was carrying a firearm. Kelley instructed him

to get out of the car, so he could perform a pat-down search.

Hanslin complied, and Kelley removed a Glock 9 mm semi-automatic

handgun from Hanslin’s waistband.

5 Meanwhile, Gericke had exited her car and was standing

behind a small fence that separated her from Sergeant Kelley.

She yelled to him that she was recording his actions and pointed

what Kelley suspected was a camera at him. And, although Gericke

denies i t , Kelley says she shouted words encouraging Hanslin not

to cooperate. See, e.g., Affidavit of Sergeant Joseph Kelley

(document n o . 20-2) at para. 8 (“Ms. Gericke verbally was

encouraging M r . Hanslin not to comply with my motor vehicle stop

and shouted ‘remember our cause.’”). Gericke later explained

that she believed Kelley’s decision to stop Hanslin for speeding

was “bizarre” and said she saw her own role as that of a witness

to the unfolding events, who should document what was

transpiring. Gericke Deposition (document n o . 26-4) at 6 1 , 6 5 .

Curiously, however, Gericke also testified that she knew her

video camera was not working at the time. Nevertheless, she kept

it pointed at Kelley.

at 6 8 . Sergeant Kelley responded by

telling Gericke to return to her car. She complied, but rolled

the window down and “kept the camera trained on him.”

at 6 4 .

According to Sergeant Kelley, due to Gericke’s continuing

involvement, what had begun as a routine traffic stop had, in his

view, become a potentially dangerous situation. He was in the

presence of four unknown people (at least one of whom had been

carrying a firearm); Hanslin was being less than fully

6 cooperative; Gericke was shouting at him and protesting the stop;

and it was late at night, and he was alone. Accordingly, he

called for assistance. Three members of the Weare Police

Department responded: Lieutenant James Carney, Sergeant Robert

Peterson (not a defendant in this action), and Officer Brandon

Montplaisir. Around the same time, a third civilian car arrived

at the scene. The driver, William Rodriguez, exited the vehicle.

The officers were, then, presented with a late night situation

that involved three vehicles, six unknown people, one (known)

firearm, and a number of people outside of their vehicles.

The responding officers divided their attention among the

three cars. Lieutenant Carney responded to Rodriguez, Sergeant

Kelley returned his attention to Hanslin, Officer Montplaisir

responded to Gericke, and Sergeant Peterson provided general

assistance to the other officers. Before Officer Montplaisir

approached Gericke, Sergeant Kelley told him that Gericke had

been interfering with Kelley’s ability to conduct the traffic

stop and that she may have a video camera. Montplaisir

approached Gericke, identified himself as a police officer, and

asked for her license and registration. Gericke says he was

shouting at her, so she “decided to lock my door and roll my

window up so that I could just talk to him through a crack.”

Gericke Deposition at 7 4 .

7 In response to Officer Montplaisir’s request that she

produce her driver’s license and vehicle registration, Gericke

said, “I’m confused. Is that a lawful order? I’m not driving

the car, I’m parked in a parking lot. I don’t understand why I

would have to give you my driver’s license - my driver’s license

and registration.”

. Montplaisir explained that,

under state law, she was required to produce that information

and, for a second time, he asked her to do s o . Again, however,

Gericke balked, saying “Are you sure this is a lawful order? I’m

not driving the car, I’m sitting in a parking lot, I don’t see

why I would have to give you my license and registration.”

at 7 5 . See also

(“So twice I said to him are you - you

know, is that a lawful order, why do I have to provide i t , I’m

not driving the vehicle, I’m parked in a parking lot.”). Officer

Montplaisir explained to Gericke that if she did not produce her

license and registration, he was going to place her under arrest

and, if necessary, officers would use force to remove her from

the car. Montplaisir Deposition (document n o . 20-25) at 44-45.

Gericke says she then began to look for her driver’s

license. Gericke Deposition at 7 6 . She claims she “found the

State Farm [insurance] card, and I gave that to him through the

window, and he threw it back in my face,”

- apparently

through the “crack” that she left in the window when she rolled

8 it u p . At that point, Montplaisir decided that he had given

Gericke sufficient opportunity to comply with his (repeated)

requests for identification, concluded that she was not going to

comply with that directive, and told her that she was under

arrest for disobeying a police officer. He instructed Gericke to

get out of her car. According to Montplaisir, Gericke refused to

exit the vehicle and he again instructed her to do s o . See

Affidavit of Brandon Montplaisir (document n o . 20-11) at para.

10. Eventually, Montplaisir says, Gericke’s passenger persuaded

her to comply and Gericke exited the vehicle. Officer

Montplaisir then placed her under arrest for disobeying a police

officer, handcuffed her, and escorted her to a police cruiser

without incident. Gericke was transported to the police station,

where she was charged with disobeying a police officer, in

violation of N.H. Rev. Stat. Ann. (“RSA”) 265:4. She was also

charged with obstructing a government official, in violation of

RSA 642:1, and unlawful interception of oral communications, in

violation of RSA 570-A:2, I (also known as New Hampshire’s law

against wiretapping and eavesdropping).

It is not entirely clear from the record how the police came

to possess Gericke’s video camera. See generally Plaintiff’s

Memorandum (document n o . 26-1) at 4-5. But, it is undisputed

that they did take it into their possession. According to

9 Gericke, after she was processed at the police station, she asked

unidentified police officers to provide her with a receipt for

the camera. She claims they refused and she was escorted out of

the station.

A criminal probable cause hearing was scheduled for May 2 5 ,

2010. Immediately prior to that hearing, however, the New

Hampshire prosecutor for the Town of Weare, Attorney Catherine

Baumann, “nolle processed the pending charges, and [she] sent the

matter to the Hillsborough County Attorney for presentment to the

Hillsborough County Grand Jury.” Affidavit of Catherine Baumann

(document n o . 20-15) at para. 2 . On November 2 , 2010, police

obtained a warrant, authorizing them to search the contents of

Gericke’s video camera - presumably because the video they

believed Gericke had taken that night might reveal the extent (if

any) to which she obstructed Sergeant Kelley’s ability to conduct

the traffic stop and, perhaps, the conduct that gave rise to

criminal drug possession charges that were filed against Hanslin

and his passenger.2

2 Until her civil deposition, Gericke had not revealed to the officers that her video camera was not functioning on the night in question. S o , when officers applied for the search warrant, they reasonably believed the camera contained evidence of criminal conduct.

10 During the search of the camcorder, digital video files were

located, but could not be opened or viewed. Accordingly, the

camera was sent to the New Hampshire State Laboratory. The lab

encountered the same difficulties and i t , too, was unable to

recover the apparently corrupted video files. But, it appears

that rather than return the camera to the Weare Police

Department, the state lab simply retained it - conduct Gericke

characterizes as the defendants having “left the camera with the

lab.” Plaintiff’s memorandum at 6.

In March of 2011, Gericke filed a motion in state court

seeking return of her video camera. That motion was granted and,

not long thereafter, Gericke’s camera was returned to her by the

state.

Discussion

I. Gericke’s First Amendment Claims.

A. Background

Gericke advances two federal constitutional claims in which

she asserts that she was the victim of retaliatory prosecution

for having engaged in protected First Amendment activities. See

generally

. In count one, she claims defendants

lacked probable cause to charge her with violating New

Hampshire’s wiretapping and eavesdropping statute, RSA 570-A:2,

11 but nevertheless pursued that charge in retaliation for her

having attempted to videotape Sergeant Kelley performing his

official public duties. See generally Hartman v . Moore,

(2006) (“Official reprisal for protected speech offends

the Constitution because it threatens to inhibit exercise of the

protected right and the law is settled that as a general matter

the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions, including

criminal prosecutions, for speaking out.”) (citation and internal

punctuation omitted). And, she says that because it was clearly

established that police officers cannot arrest citizens for

merely videotaping them while they perform official duties in a

public place, the defendants are not entitled to the protections

afforded by qualified immunity.

In count two, she advances a similar claim, asserting that

defendants charged her with violating the wiretapping statute in

retaliation for having “petitioned the Defendants for a redress

of grievances.” Amended Complaint at para. 2 8 .

According to Officer Montplaisir, he arrested Gericke for

having disobeyed a lawful order of a police officer - that i s ,

for refusing to produce her driver’s license and vehicle

registration when instructed to do s o . Police Report of Officer

12 Montplaisir (document n o . 20-12) at 1 ; Montplaisir Deposition at

4 5 ; Montplaisir Affidavit at para. 1 0 . He informed Gericke of

the same when he took her into custody. Subsequently, when she

was processed at the police station, Gericke was charged with

three crimes: the initial crime of disobeying a lawful order of a

police officer, as well as obstructing a government official

during the course of his duties, and violating New Hampshire’s

law prohibiting wiretapping and electronic eavesdropping.

Gericke focuses on the wiretapping charge, saying defendants’

decision to charge her for having videotaped the officers

undeniably violated her First Amendment rights.

First, Gericke’s arrest for disobeying a police officer was

plainly supported by probable cause and did not violate any of

her constitutional rights. See generally Holder v . Town of

Sandown,

0 0 , 504 (1st Cir. 2009) (discussing probable

cause to arrest); RSA 594:10, I(a) (discussing the circumstance

under which an officer may make a warrantless arrest for a

misdemeanor violation). See also Atwater v . City of Lago Vista,

1 8 , 354 (2001) (“If an officer has probable cause to

believe that an individual has committed even a very minor

criminal offense in his presence, he may, without violating the

Fourth Amendment, arrest the offender.”). Officer Montplaisir

was entitled, under New Hampshire law, to ask Gericke to produce

13 her driver’s license and/or vehicle registration. See RSA 265:4,

I(e). See also RSA 263:2 (“[e]very person driving a motor

vehicle shall have his driver’s license upon his person or in the

vehicle in some easily accessible place and shall display the

same on demand of and manually surrender the same into the hands

of the demanding officer for the inspection thereof.”). 3

The record evidence is undisputed. Officer Montplaisir

twice asked Gericke to produce her license and registration. On

both occasions, she refused to comply and, instead, questioned

the lawfulness of his request. See Gericke Deposition at 31

(“The first two times he asked [for my license] I did not

[produce i t ] , because I did not believe it was a legal order

because I was not operating the vehicle.”). Only when threatened

with arrest and forcible removal from her vehicle, did Gericke

give at least the appearance of attempted compliance. See

Gericke Deposition at 7 6 . (“So I actually started looking for my

license. And it was at the time where I had reached over into

the cubbyhole and I took out the - the engine book and stuff, and

3 That Gericke was not actually arrested for having violated RSA 263:2 is not material to the probable cause inquiry. See, e.g., United States v . Jones,

4 , 41 (1st Cir. 2005) (“As the Supreme Court has recently reiterated, however, the probable cause inquiry is not necessarily based upon the offense actually invoked by the arresting officer but upon whether the facts known at the time of the arrest objectively provided probable cause to arrest.”) (citing Devenpeck v . Alford,

(2004)).

14 I found the State Farm card.”). Officer Montplaisir gave Gericke

sufficient opportunity to comply with his request, and, when she

failed to do s o , and offered no plausible excuse for her failure,

he had probable cause to arrest her under state law for

disobeying a lawful order of a police officer.

The critical question presented here is not whether Gericke

was properly placed under arrest - she was - but whether

defendants’ subsequent decision to charge her with violating the

wiretapping statute (allegedly in retaliation for having

ostensibly videotaped the officers) violated her First Amendment

freedoms.

B. Retaliatory Prosecution - Videotaping

In count one of her amended complaint, Gericke asserts that

she “was engaged in lawful First Amendment activities when she

attempted to video - and audio - record Defendant Kelley

performing his public duties in public, and the Defendants

arrested her and charged her with ‘wiretapping’ in retaliation

for exercising those rights.” Amended Complaint at para. 2 4 .

The Court of Appeals for the First Circuit has recognized that it

is clearly established in this circuit that police officers

cannot, consistently with the Constitution, prosecute citizens

for violating wiretapping laws when they peacefully record a

15 police officer performing his or her official duties in a public

area. Glik v . Cunniffe,

8 , 84 (1st Cir. 2011).

Moreover, in this case, the police lacked probable cause to

believe Gericke violated the state law prohibiting wiretapping.

Gericke was charged with willfully intercepting, or attempting to

intercept, an oral communication, in violation of RSA 570-A:2, I .

See, e.g., Weare Police Department Case Submission Form (document

no. 2 1 - 8 ) . Importantly, however, that statute provides that, for

a crime to occur, the victim of an intercepted oral communication

must have had a reasonable expectation “that such communication

is not subject to interception under circumstances justifying

such expectation.” RSA 570-A:1, I I . See also Fischer v . Hooper

(1999) (providing that the victim of

intercepted oral communication must have a “reasonable

expectation . . . that her communications will not be

intercepted.”). Here, the officers had no reasonable expectation

that their public communications during the traffic stop were not

subject to interception: they were performing official duties,

they were in a public place, and Gericke was openly videotaping

(or purporting to videotape) their actions. See Glik,

.

16 Even s o , defendants say, the facts underlying this case are

at least sufficiently distinct from those presented in Glik that

they are at least entitled to qualified immunity. That is to

say, even if they did violate Gericke’s constitutional rights,

they remain immune from suit and liability. A government

official is entitled to qualified immunity from personal

liability if his or her challenged “‘conduct [did] not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Aversa v . United States,

(1st Cir. 1996) (quoting Harlow v . Fitzgerald,

0 0 , 818 (1982)). The challenged conduct is measured by

a standard of objective reasonableness, that i s , one must ask:

“Could an objectively reasonable official, situated similarly to

the defendant, have believed that his conduct did not violate the

plaintiff[’s] constitutional rights, in light of clearly

established law and the information possessed by the defendant at

the time of the allegedly wrongful conduct?” Wood v . Clemons,

2 2 , 927 (1st Cir. 1996). And, as the Court of Appeals for

the First Circuit has observed,

To determine a defendant’s eligibility for qualified immunity, courts must define the right asserted by the plaintiff at an appropriate level of generality and ask whether, so characterized, that right was clearly established when the harm-inducing conduct allegedly took place. This does not mean that a right is clearly established only if there is precedent of considerable factual similarity. It does mean, however, that the law must have defined the right in a quite specific

17 manner, and that the announcement of the rule establishing the right must have been unambiguous and widespread, such that the unlawfulness of particular conduct will be apparent ex ante to reasonable public officials.

Brady v . Dill,

0 4 , 115-16 (1st Cir. 1999) (citations

and internal quotation marks omitted) (emphasis supplied).

As suggested in Dill, a defendant does not lose the

protection of qualified immunity if he acts mistakenly, as long

as his mistake was objectively reasonable, since qualified

immunity is intended to protect “all but the plainly incompetent

or those who knowingly violate the law.” Malley v . Briggs,

(1986)).

To resolve defendants’ claimed entitlement to qualified

immunity, it is necessary to focus on two aspects of the Glik

opinion. First, the court of appeals noted that the “peaceful

recording of an arrest in a public space that does not interfere

with the police officers’ performance of their duties is not

reasonably subject to limitation.” Glik,

(emphasis supplied). A reasonable (if not self-evident)

implication of that statement of the law is that the non-peaceful

recording of police officers, in a way that does interfere with

the performance of their duties, is not constitutionally

protected conduct (or, at the very least, it has not been

18 “clearly established” that it i s ) . Second, the Glik court

distinguished a recent decision by the Court of Appeals for the

Third Circuit, in which that court held that “there was

insufficient case law establishing a right to videotape police

officers during a traffic stop to put a reasonably competent

officer on ‘fair notice’ that seizing a camera or arresting an

individual for videotaping police during the stop would violate

the First Amendment.” Kelly v . Borough of Carlisle,

(3d Cir. 2010) (emphasis supplied).

In light of the foregoing, and given that Glik does not

clearly establish a First Amendment right to disruptively and

non-peacefully engage in recording the public activity of police

officers, a reasonable police officer in this circuit could

plausibly conclude that Gericke did not have a constitutionally

protected right to videotape the officers during the course of a

traffic stop if she was behaving in a way that was not peaceful

or was disruptive.4

4 Neither Glik nor Kelly (the Third Circuit opinion) discusses why a police officer might lawfully (and constitutionally) prohibit a person from recording an ongoing traffic stop. Both courts did suggest, however, that the potentially dangerous nature of traffic stops might prove a meaningful distinction. Still, in light of the court’s broad holding in Glik, a reasonable officer should have known that a blanket prohibition on the recording of all traffic stops, no matter the circumstances, was not constitutionally permissible. In other words, to demonstrate that they are entitled to qualified immunity, defendants must show that Gericke’s conduct

19 The events giving rise to Gericke’s claims arose out of a

late night traffic stop and the circumstances faced by the

officers in this case were substantially different than those

faced by the officers in Glik. Simon Glik used his cell phone to

record three Boston police officers arresting a young man on the

Boston Common. Nothing in the opinion suggests that there was

anything unusual or dangerous about the circumstances, or that

Glik was disruptive in any way. Here, however, the officers did

face a potentially dangerous situation: a late night traffic stop

involving multiple vehicles, six citizens (some of whom were

quite vocal, even confrontational, in expressing their opposition

to the officers), and at least one firearm. As the court of

appeals recognized in Glick, “a traffic stop is worlds apart from

an arrest on the Boston Common in the circumstances alleged.”

Glik,

5 . See also Michigan v . Long,

(1983) (“[W]e [have] recognized that investigative

detentions involving suspects in vehicles are especially fraught

with danger to police officers.”); Pennsylvania v . Mimms, 434

somehow distracted Sergeant Kelley, that it interfered with his ability to perform his official duties, or that it otherwise contributed to the dangerous nature of the late-night traffic stop. See, e.g., Glik,

(“Glik filmed the officers from a comfortable remove and neither spoke to nor molested them in any way . . . Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”) (citation and internal punctuation omitted).

(1977) (recognizing the “inordinate danger”

confronting police officers conducting traffic stops).

But, with respect to whether Gericke was, in fact,

disruptive, there is a genuine factual dispute that must be

resolved by the trier of fact. Defendants say Gericke was

disruptive to the point of interfering with the responding

officers’ ability to perform their official duties - hence the

decision to charge her with obstruction. Gericke, on the other

hand, asserts that she was a model of civility and calmness.

See, e.g., Gericke Deposition at 4 4 , 62-65. Whether the officers

are entitled to qualified immunity depends in large part on

whether Gericke’s conduct was within or outside the protection

afforded by the First Amendment - o r , more correctly, whether her

conduct was such that a reasonable officer should have known that

she was engaging in protected conduct under the actual

circumstances. The existence of that genuinely disputed material

fact precludes the court from granting defendants’ motion for

summary judgment on grounds of qualified immunity.

C. Retaliatory Prosecution - Redress of Grievances

In count two of her amended complaint, Gericke alleges that,

without probable cause, defendants charged her with violating the

state wiretapping law in retaliation for her having petitioned

21 the government for redress of grievances. Specifically, she

claims she:

was engaged in lawful First Amendment Activities, in that she petitioned the Defendants for a redress of grievances when she asked that they provide her a receipt for her seized camera. The Defendants arrested her and charged her with “wiretapping” in retaliation for exercising her First Amendment rights.

at para. 28 (emphasis supplied). While there may be some

debate as to its precise contours, the right to “redress

grievances” is likely not violated when an arrestee

unsuccessfully requests a receipt for evidence seized in a

criminal case.

Aside from the obvious legal flaws in Gericke’s claim, it

suffers as well from a fatal factual flaw. According to her

original complaint, Gericke was charged with violating the state

wiretapping law before she (allegedly) raised the issue of a

receipt for her seized camera. See, e.g., Complaint at para. 18-

19 (“Following the arrest, Defendant Montplaisir seized M s .

Gericke’s camera, and Defendant Carney instructed Defendant

Montplaisir to charge M s . Gericke with illegal wiretapping under

RSA 570-A. . . . Following M s . Gericke’s booking, M s . Gericke

asked for a receipt for her camera.”) (emphasis supplied). As a

factual matter, then, she plainly was not charged with violating

the state wiretapping statute in retaliation for having later

22 sought a receipt for her camera; on this record, the charge

preceded her request.

Defendants are entitled to judgment as a matter of law on

count two of the complaint.

II. Municipal Liability.

In count four of her amended complaint, Gericke asserts that

Chief of Police Gregory Begin “failed to properly train and

supervise the Defendant Officers by maintaining a policy, custom,

or both which caused and/or allowed the Defendants’ unlawful

unconstitutional conduct to occur thereby causing harm to the

Plaintiff.” Amended Complaint, at para. 3 7 . She advances

similar claims against the Weare Police Department (count five)

and the Town of Weare (count s i x ) .

It is well-established that “[s]upervisory liability under

§ 1983 cannot be predicated on a respondeat theory, but only on

the basis of the supervisor’s own acts or omissions.” Aponte

Matos v . Toledo-Davila,

8 2 , 192 (1st Cir. 1998)

(citation and internal punctuation omitted). Consequently,

municipalities and their supervisory employees:

are not vicariously liable under section 1983 for the actions of their non-policymaking employees. They are responsible only for their own unconstitutional acts.

23 Thus, a plaintiff who brings a section 1983 action against a municipality bears the burden of showing that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. Such a plaintiff must identify a municipal “policy” or “custom” that caused the plaintiff’s injury.

Haley v . City of Boston,

9 , 51 (1st Cir. 2011)

(citations and internal punctuation omitted) (emphasis in

original).

In support of her claim against Chief Begin, Gericke alleges

the following:

The Defendant Officers conducted their actions pursuant to Defendant Begin’s policies and procedures, the Weare Police Department’s policies and procedures and the Defendant Town’s policies and procedures. . . . .

Chief Begin admitted to having the authority to make policies and procedures on behalf of the Defendant Town and the Defendant PD. He explained that the policy regarding wiretapping is to arrest people for audio/video recording his officers without having first obtained the consent of the officers and/or if the individual is yelling at the officers, moving around and using a device that has a red light.

Plaintiff’s Memorandum (document 21-2) at 25-26 (emphasis

supplied). That is not an entirely accurate statement of the

undisputed record evidence. Chief Begin did not discuss the

police department’s “official policy” on dealing with members of

the public who are using videotaping equipment (to the extent the

department even has such a policy). Rather, he testified about

24 his personal belief that, as long as a citizen is not interfering

with an officer’s ability to perform his or her official duties,

that citizen has a right to videotape the officer. But, he said

he also believes an officer has probable cause to arrest the

citizen if he or she is being disruptive or otherwise

“interfering with the officer and his duties.” Deposition of

Gregory C . Begin (document n o . 21-12) at 3 6 . Gericke points to

no other evidence suggesting that the police department had a

custom or policy of the sort she alleges.

To the extent Chief Begin’s interpretation of the governing

law can, standing alone, properly be considered an official

governmental policy (a doubtful proposition), it still cannot be

said that the “policy” was the “moving force” behind Gericke’s

alleged constitutional injuries. She claims that her

constitutional rights were violated when, without probable cause,

officers charged her with violating the state wiretapping

statute, in retaliation for having engaged in protected conduct.

She has pointed to nothing in the record suggesting that any

custom or policy enacted or implemented by Chief Begin caused her

alleged injuries. In fact, based upon Gericke’s own

interpretation of the record evidence, if the Weare Police

Department had a policy, it provided that officers should not

arrest citizens who are peacefully videotaping officers

25 performing their public duties. Chief Begin i s , then, entitled

to judgment as a matter of law on count four of plaintiff’s

amended complaint.

As to the Town of Weare and the Weare Police Department,

Gericke alleges that:

[T]he Defendant Town and Defendant PD by and through Defendant Begin maintain a policy that requires seized property to be returned once a District Court case is disposed o f . The Defendant Officers, Defendant P D , and Defendant Town failed to follow this policy directive by failing to return M s . Gericke’s camera once Attorney Baumann had nolle prossed the charges against M s . Gericke. Finally, Defendant Begin admitted that receipts should be given to defendants who have had property seized by the Defendant PD. He also admitted that this is especially true if the person asks for a receipt. Here, despite M s . Gericke asking for a receipt, the Defendants did not provide her a receipt for her camera.

Therefore, the Defendant Town and Defendant PD clearly maintain[] policies and customs which enabled and encouraged the Defendant Officers to violate M s . Gericke’s constitutionally protected activities.

Plaintiff’s Memorandum at 26 (emphasis supplied).

Gericke’s conclusion does not follow from her premises.

And, the “policies” she identifies were clearly not the “moving

force” behind her alleged injuries, nor did they “enable” or

“encourage” the defendant police officers to violate her

constitutional rights. In fact, to the extent policies as

26 described by Gericke existed, they would have encouraged officers

to return seized (non-contraband) evidence after a criminal case

concludes, and provide receipts for seized evidence upon request.

A lengthy discussion of the point is unnecessary. The Town of

Weare and the Weare Police Department are entitled to judgment as

a matter of law on counts five and six of plaintiff’s amended

complaint.

III. Gericke’s State Common Law Claim.

Finally, Gericke advances a state common law claim for

malicious prosecution (count three), over which she asks the

court to exercise supplemental jurisdiction. To prevail on such

a claim, Gericke must establish that she “was subjected to a

criminal prosecution instituted by the defendant without probable

cause and with malice, and that the criminal proceeding

terminated in [her] favor.” Stock v . Byers,

4 4 , 846

(1980) (citation and internal punctuation omitted). There is no

question that three of those elements are present: Gericke was

charged with violating the state wiretapping law; as discussed

above, defendants lacked probable cause to believe she had

violated that statute; and the proceedings terminated in her

favor when the charges were dropped and not reinstituted. What

remains unresolved is whether defendants acted with malice.

27 Under New Hampshire law, malice “is said to exist when the

primary purpose in instituting the criminal proceeding was not to

bring an offender to justice, but was, on the contrary, ill will,

personal hostility, or to obtain a personal advantage.” MacRae

v . Brant,

7 7 , 181 (1967) (citations omitted). But,

while malice may be inferred from the lack of probable cause,

Welch v . Bergeron,

(1975), that inference

alone is insufficient to entitle Gericke to judgment as a matter

of law. Defendants vigorously dispute her claim that they acted

with any malice toward her; rather, they say they were simply

enforcing the law as they understood i t . Whether one or more of

the defendants acted with malice toward Gericke i s , then, an

issue for the jury. Consequently, neither party is entitled to

summary judgment on Gericke’s claim for malicious prosecution.

Conclusion

For the foregoing reasons, defendants are entitled to

judgment as a matter of law on counts two, four, five, and six of

plaintiff’s amended complaint. Their motions for summary

judgment (documents n o . 19 and 20) are, therefore, granted in

part and denied in part. Plaintiff’s motion for summary judgment

(document n o . 21) is denied.

28 Because there are genuinely disputed material facts relevant

to both count one and count three, those counts cannot be

resolved as a matter of law.

SO ORDERED.

Stefeven J./McAuliffe Jnited States District Judge

October 1 5 , 2012

cc: Seth J. Hipple, Esq. Stephen T . Martin, Esq. Charles P. Bauer, Esq. Corey M . Belobrow, Esq.

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