UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael, Lynda, Jeremiah, and Christopher Martel

v. Civil N o . 12-cv-74-JD Opinion N o .

Town of Chichester, Patrick Clarke, Jonathan Adinolfo, Town of Epsom, Wayne Preve, Brian Michael, and Dana Flanders

O R D E R

Michael and Lynda Martel and their sons, Jeremiah and

Christopher, brought suit in state court against the Town of

Epsom, its police chief, and two police officers and the Town of

Chichester, its police chief, and one police officer. The

defendants removed the case to this court. The defendants move

for summary judgment, and the Martels object. The defendants

filed replies to the Martels’ objection.

Standard of Review

Summary judgment is appropriate if the moving party “shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A party opposing summary judgment “must set forth

specific facts showing that there is a genuine issue for trial.” Anderson v . Liberty Lobby, Inc.,

4 2 , 256 (1986).

Material facts are “facts that might affect the outcome of the

suit under the governing law.” Id. at 248. The court considers

the undisputed material facts and all reasonable inferences from

those facts in the light most favorable to the nonmoving party.

Avery v . Hughes,

9 0 , 693 (1st Cir. 2011).

Background

The Chichester defendants are the Town of Chichester,

Chichester Chief of Police Patrick Clarke, and Officer Jonathan

Adinolfo. The Epsom defendants are the Town of Epsom, Epsom

Police Chief Wayne Preve, Sergeant Brian Michael, and Patrolman

Dana Flanders. The plaintiffs are Lynda Martel and Michael

Martel, Sr., and their sons Jeremiah and Christopher. Michael

Martel, J r . (“Michael Jr.”) is also a son of Lynda and Michael,

Sr., but he is not a party in this case.

Before the events at issue in this case occurred, Nicole

Taylor had had a relationship with Michael J r . On August 1 5 ,

2011, Taylor obtained a domestic violence protective order

against Michael J r . The protective order, among other things,

required Michael J r . to “relinquish to a peace officer all

firearms and ammunition in [his] control, ownership or

2 possession, or in the possession of any other person on behalf of

the defendant . . . .”

Officer Adinolfo received the protective order the afternoon

it was issued. Adinolfo knew from prior experience that the

Martels had guns. He asked the Epsom Police Department to

provide back-up assistance to serve the protective order on

Michael J r . at the Martels’ house. Epsom Sergeant Brian Michael

and Patrolman Dana Flanders responded to Officer Adinolfo’s call

for assistance.

The three officers arrived at the Martels’ home at about

3:45 p.m. on August 1 5 , 2011. When Michael J r . came to the door,

Officer Adinolfo confirmed that he was talking to the right

person by checking Michael Jr.’s driver’s license. He then

explained the protective order to Michael J r . and gave him a

copy. Adinolfo explained that all firearms on the property had

to be relinquished to the officers. Michael J r . and the other

members of his family were upset by the requirement but complied

with the order. The officers collected eleven firearms along

with ammunition from the Martels. A property form was completed,

and a copy was left at the house for the Martels. Officer

Adinolfo, Sergeant Michael, and Patrolman Flanders left the

Martels’ house at 4:12 that afternoon.

3 Lynda and Michael Martel, S r . filed a motion in the Concord

Family Division to intervene in the domestic violence hearing and

requested return of their firearms. The Concord Family Division

denied their motion. On October 2 6 , 2011, the Concord Family

Division issued an order that allowed return of the firearms to

the Martels. On October 2 7 , the Chichester Police Department

returned the firearms and ammunition.

Discussion

The Martels bring civil rights claims under

, alleging that the defendants violated their Second and

Fourth Amendment rights.1 They also bring state law claims for

trespass and invasion of privacy against all of the defendants,

for negligent hiring and supervision against the towns, and for

violation of the New Hampshire Constitution against all of the

defendants. The defendants move for summary judgment on the

federal claims on the grounds that no violation of the Martels’

federal rights occurred, that the officers are entitled to

qualified immunity, and that the plaintiffs cannot prove a claim

1 The Martels also cite the Fourteenth Amendment but do not allege claims of procedural or substantive due process violations. Instead, reference to the Fourteenth Amendment apparently is made because the Second and Fourth Amendments are applicable to the states through the Fourteenth Amendment.

4 under § 1983 against the towns or chiefs of police. The

defendants move for summary judgment on the state claims on the

grounds of official immunity, that the plaintiffs have not stated

a claim under the New Hampshire Constitution, and that the towns

are entitled to vicarious official immunity, discretionary

function immunity, and statutory immunity.

In response, the Martels objected to summary judgment only

as to Counts I and I I , which are the claims under § 1983 alleging

violation of the Second and Fourth Amendments.2 The Martels

concede that summary judgment is appropriate on their state law

claims alleged in Counts III through V I .

In their reply, the Epsom defendants note that the Martels

make no argument and provide no evidence in their objection to

summary judgment to show that the Epsom defendants violated the

Martels’ rights. Instead, the Martels focus on the actions of

Chichester Police Officer Adinolfo. In addition to challenging

the claims on the merits, the Epsom defendants argue that they

are entitled to summary judgment based on the Martels’ failure to

support their claims against them in opposition to their motion

for summary judgment.

2 The Martels also mention the New Hampshire Constitution, but those rights are not actionable under § 1983. See, e.g., Holder v . Town of Newton,

, at *2 (D.N.H. Aug. 1 1 , 2010).

5 To survive summary judgment on their claims against the

Epsom defendants, the Martels must show a genuine dispute of

material fact as to whether those defendants violated their

Second and Fourth Amendment rights. Acevedo-Parrilla v . Novartis

Ex-Lax, Inc.,

2 8 , 137 (1st Cir. 2012). “On issues

where the movant does not have the burden of proof at trial, the

movant can succeed on summary judgment by showing ‘that there is

an absence of evidence to support the nonmoving party’s case.’”

OneBeacon Am. Ins. C o . v . Commercial Union Assur. C o . of Canada,

3 7 , 241 (1st Cir. 2012) (quoting Celotex Corp. v .

Catrett,

1 7 , 325 (1986)); see also Gomez v . Stop & Shop

Supermarket Co.,

(1st Cir. 2012).

In this case, the Martels bear the burden of proof on their

§ 1983 claims but provide no evidence or argument that the Epsom

defendants violated their rights as they claimed. While the

Martels refer to deposition testimony by Epsom Sergeant Michael

to support their objection to summary judgment on their claims

against Chichester Officer Adinolfo, they make no argument that

the Epsom defendants violated their rights. Because the Martels

have failed to provide any evidence to support their claims

against the Epsom defendants in response to the motion for

summary judgment, the Epsom defendants are entitled to judgment

in their favor on Counts I and I I . Even if that were not the

6 case, however, the claims would also fail for the same reasons

that summary judgment is appropriate in favor of the Chichester

defendants, as is discussed below.

A. Count I - Chichester Defendants

In Count I , the Martels allege that the Chichester

defendants violated their rights under the Second Amendment when

Officer Adinolfo seized the Martels’ guns without a warrant. In

support of summary judgment, the Chichester defendants contend

that they did not violate the Martels’ Second Amendment rights

because Adinolfo was authorized to remove the guns from the house

by the domestic violence order and because the Martels complied

with the officers’ direction that they relinquish the guns.

Adinolfo also contends that he is entitled to qualified immunity.

Chichester and Chief Clarke contend that the Martels cannot prove

their liability under § 1983.

1. Chichester and Chief Clarke

The allegations against Chichester and Chief Clarke in Count

I are that they “authorized, permitted, and tolerated the custom,

policy and practice of seizing firearms in violation of the right

of citizens to keep and bear arms, as protected by the Second and

Fourteenth Amendments to the United States Constitution” by

7 deficiencies in appointing, promoting, training, and supervising

their police officers, by failing to have procedures to serve

restraining orders in compliance with the Second Amendment, and

by failing to prohibit the seizure of guns from citizens. The

defendants contend that the Martels cannot prove that they were

harmed by an unconstitutional town policy or practice or that the

chief is liable for a constitutional violation. See, e.g.,

Freeman v . Town of Hudson,

9 , 37-38 (1st Cir. 2013)

(standard for municipal liability); Grajales v . P.R. Ports Auth.,

0 , 47 (1st Cir. 2012) (standard for supervisory

liability).

The Martels make no effort to counter the motion for summary

judgment with respect to Chichester or Chief Clarke and provide

no evidentiary support for their claims. As explained above in

the context of the Epsom defendants’ motion, in response to a

properly supported motion for summary judgment, the nonmoving

party with the burden of proof on an issue “must point to

competent evidence and specific facts to defeat summary

judgment.” Johnson v . Univ. of P.R.,

8 , 53 (1st Cir.

2013). Therefore, Chichester and Clarke are entitled to summary

judgment in their favor on Count I .

8 2. Officer Adinolfo The Second Amendment protects the rights of individuals, as well as the people collectively, to keep and bear arms. United States v . Armstrong,

, 7 (1st Cir. 2013) (citing District of Columbia v . Heller,

7 0 , 576-626 (2008)). “[T]he possession of operative firearms for use in defense of the home constitutes the ‘core’ of the Second Amendment.” Hightower v . City of Boston,

1 , 72 (1st Cir. 2012). The Second Amendment right is not unlimited, however, Heller, 554 U.S. at 626, and may be restricted by appropriate statutes and court orders, see, e.g., United States v . Mahin,

(4th Cir. 2012) (upholding constitutionality of

(g)(8)); United States v . Bena,

(8th Cir. 2011) (same); Doutel v . City of Norwalk,

, at *24-*25 (D. Conn. July 3 , 2013) (Second Amendment does not apply to particular firearm); Powell v . Tompkins, --- F. Supp. 2d ---,

(D. Mass. Feb. 2 8 , 2013) (licensing requirements do not violate the Second Amendment).

Adinolfo contends that he did not violate the Martels’ Second Amendment rights because he was authorized by the domestic violence protective order and RSA 173-B:4 to require Michael J r . to relinquish his own guns and ammunition and the other guns and

9 ammunition in the house.3 In their objection, the Martels assert

only that they did not voluntarily relinquish their firearms.

The Martels’ argument concerning voluntary relinquishment

is not supported by case law or by any developed theory with

respect to the Second Amendment. The Martels make no argument

that either the protective order or RSA 173-B:4 violates the

Second Amendment. They neither argue nor provide facts to show

that Adinolfo acted beyond the scope of the order. Given the

conceded validity of the protective order, the Martels have not

shown a material factual dispute to avoid summary judgment on

their Second Amendment claim. See, e.g., Vallejo v . Santini-

3 Before amendment on June 6, 2013, which is effective January 1 , 2014, RSA 173-B:4 provided, in pertinent part, as follows:

Upon a showing of an immediate and present danger of abuse, the court may enter temporary orders to protect the plaintiff with or without actual notice to defendant. The court may issue such temporary orders by telephone or facsimile. Such telephonically issued orders shall be made by a district or superior court judge to a law enforcement officer, shall be valid in any jurisdiction in the state, and shall be effective until the close of the next regular court business day. . . . Such temporary relief may direct the defendant to relinquish to a peace officer any and all firearms and ammunition in the control, ownership, or possession of the defendant, or any other person on behalf of the defendant for the duration of the protective order. . .

10 Padilla,

, 7 (1st Cir. 2010); Higgins v . New Balance

Athletic Shoe, Inc.,

5 2 , 260 (1st Cir. 1999) (“The

district court is free to disregard arguments that are not

adequately developed.”). Therefore, Adinolfo is entitled to

summary judgment on Count I .

B. Count II - Chichester Defendants

In Count I I , the Martels allege that Officer Adinolfo

violated their Fourth Amendment rights by entering their home and

seizing their guns and ammunition without a warrant.4 They

allege that Chichester violated their Fourth Amendment rights by

authorizing, permitting, and tolerating a practice of illegal

warrantless searches and seizures of property. No claim against

Chief Clarke is alleged in Count I I .

Because the Martels provide no evidence to support their

Count II claims against Chichester, Chichester is entitled to

summary judgment on Count I I . Adinolfo contends that he did not

violate the Fourth Amendment and that he is protected by

qualified immunity.

4 Contrary to the Martels’ allegations, Officer Adinolfo denies that he or any officer entered the Martels’ home, and the Martels provide no evidence to support that allegation.

11 1. Fourth Amendment Violation - Adinolfo “The Fourth Amendment protects ‘[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” United States v . Rigaud,

(1st Cir. 2012) (quoting U.S. Const. amend. IV). For that reason, police officers generally must have a warrant that is supported by probable cause to seize property. Rigaud,

. A valid consent to a search or seizure obviates the warrant requirement. Schneckloth v . Bustamonte,

1 8 , 222 (1973).

Adinolfo contends that he was authorized by the domestic violence protective order to require Michael J r . to relinquish all of his firearms and ammunition and all of the firearms and ammunition in house, which were owned by others in his family. Adinolfo also states that the Martels, although hostile to the order, complied with the requirement and provided their firearms and ammunition. Although the Martels assert that “the police lacked property [sic] authority to force them” to surrender their firearms, they provide no argument or explanation to support that statement.5 Instead of disputing the authorization provided by

5 In the context of qualified immunity and without citing any supporting legal authority, the Martels argue that no reasonable police officer could have believed the domestic violence protective order authorized him to seize firearms from anyone

12 the protective order, the Martels contend that they did not

voluntarily surrender their firearms and ammunition, and

therefore did not provide valid consent to the seizure.

Because the Martels do not dispute with any developed

argumentation that Adinolfo was authorized by the domestic

violence protective order to require Michael J r . to relinquish

all of the firearms in the house, including those belonging to

his family, they have not shown a triable issue on their Fourth

Amendment claim. When the seizure of property is properly

authorized, consent is not necessary. Therefore, it is

unnecessary to decide whether the Martels also consented to the

seizure of their firearms.

Even if the Martels could show a violation of the Fourth

Amendment, however, Adinolfo would be protected by qualified

immunity.

2. Qualified Immunity - Adinolfo

“‘The doctrine of qualified immunity protects government

officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

other than Michael J r .

13 known.’” Messerschmidt v . Millender, 132 S . C t . 1235, 1244

(2012) (quoting Pearson v . Callahan,

(2009),

additional internal quotation marks omitted). To be a clearly

established right, it must be shown by “authority sufficiently

particularized that the unlawfulness of an act would have been

apparent to all officers of reasonable competence.” Lopera v .

Town of Coventry,

8 8 , 398 (1st Cir. 2011).

Adinolfo contends that he is entitled to qualified immunity

because the law was not clearly established so that a reasonable

police officer would know that he would violate the Martels’

Fourth Amendment rights by requiring Michael J r . to relinquish

all guns and ammunition in the house, pursuant to the domestic

violence protective order. Although the general Fourth Amendment

protections were clearly established, the more particularized

application of the Fourth Amendment in the circumstances of this

case does not appear to have been addressed in any reported

cases. C f . Slough v . Telb,

7 8 , 990-91 (N.D.

Ohio 2009) (no qualified immunity when officers searched a gun

safe and seized weapons out of concern for the safety of family

members without a warrant, a protective order, or exigent

circumstances). Therefore, in the absence of a clearly

established constitutional right, Adinolfo is entitled to

qualified immunity.

14 The Martels contend, nevertheless, that a reasonable police

officer in Adinolfo’s position would not have relied on the

domestic violence protective order as authorization to seize

firearms from them. In support, the Martels cite the deposition

testimony of Epsom Sergeant Michael who answered hypothetical

questions posed by the Martels’ lawyer at his deposition. The

Martels claim that Sergeant Michael testified that if he had

faced the same circumstances as Adinolfo, he would have gotten a

search warrant before attempting to take the firearms.

As a threshold matter, the reasonable officer test for

purposes of qualified immunity is an objective test. The test is

not what a specific officer actually would have done under the

circumstances but what a reasonable police officer in Adinolfo’s

position would have done. In addition, Sergeant Michael’s

testimony was different from the Martels’ representation.

The Martels’ lawyer asked Sergeant Michael: “So what would

you do if a person said Sgt. Michael, I have -- I have firearms

in my -- locked up in my gun safe but I’m not giving them to

you?” Sergeant Michael responded that he would apply for a

search warrant to get the firearms. The Martels provide no

evidence that they told Officer Adinolfo that the firearms were

locked in a gun safe and that they would not relinquish them. In

fact, the evidence is that when directed to relinquish their

15 firearms, the Martels complied. Because the hypothetical

question posed different circumstances, Sergeant Michael did not

testify that if he had faced the same circumstances as Officer

Adinolfo he would have obtained a search warrant before

attempting to take the Martels’ firearms.

Therefore, Adinolfo is entitled to summary judgment on Count

II.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment on all of the plaintiffs’ claims (document n o .

9 ) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

V^Joseph JJoseph A. DiClerico, Jr. United States District Judge

July 1 8 , 2013

cc: Charles P. Bauer, Esquire John A . Curran, Esquire Richard J. Lehmann, Esquire Erik Graham Moskowitz, Esquire

16