French v. Merrill

Citation15 F.4th 116
Decision Date01 October 2021
Docket NumberNo. 20-1650,20-1650
Parties Christopher FRENCH, Plaintiff, Appellant, v. Daniel MERRILL, individually and in his official capacity as a Sergeant in the Police Department of the Town of Orono ; Josh Ewing, individually and in his official capacity as Chief of Police of the Town of Orono; Town of Orono; Travis Morse, individually and in his official capacity; Christopher Gray, individually and in his official capacity; Nathan Drost, individually and in his official capacity, Defendants, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Timothy C. Woodcock for appellant.

Kasia Soon Park, with whom Edward R. Benjamin, Jr. and Drummond Woodsum were on brief, for appellees.

Before Lynch, Lipez, and Barron, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Christopher French claims that police officers in Orono, Maine, violated his constitutional rights during two encounters in 2016 -- one in February and one in September -- both of which resulted in his warrantless arrests on charges that were later dropped. French brought this action for damages under 42 U.S.C. § 1983 against the Town of Orono, the chief of the Orono Police Department, and four of the officers with whom he interacted during the two episodes. The district court granted summary judgment in favor of the defendants on all counts. French appeals only the district court's entry of summary judgment on Counts I and IX alleging that the individual officers violated his Fourth Amendment rights during the February and September incidents respectively.1

After careful review, we affirm the district court's entry of summary judgment on Count I, relating to the February incident. We reverse on Count IX, relating to the September incident, because the unconstitutional conduct of the officers violated the clearly established law of the Supreme Court as set forth in Florida v. Jardines, 569 U.S. 1, 6, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013).

I.

We describe below each of the challenged episodes between French and the law enforcement officers. We rely on the parties' limited stipulated facts2 and recount the remaining facts as they were presented to the district court on summary judgment in the light most favorable to French as the non-moving party. See, e.g., McKenney v. Mangino, 873 F.3d 75, 78 (1st Cir. 2017).

A. The February 2016 Incident

In February 2016, French was a student at the University of Maine and was dating a fellow student, Samantha Nardone. In the early morning hours of February 18th, French and Nardone had an argument at Nardone's residence after a night at the local bars. A neighbor called the police and reported that the couple had been fighting loudly.

Officer Nathan Drost, Sergeant Daniel Merrill, and another officer from the Orono Police Department3 responded to the neighbor's call at approximately 1:00 a.m. Upon arrival, the officers observed French and Drew White, one of Nardone's roommates, standing on the sidewalk in front of Nardone's residence. A few moments later, Nardone and her other roommate, Alicia McDonald, came outside. Drost questioned Nardone, White, and McDonald, who all confirmed that French and Nardone had been involved in a domestic dispute.

Nardone told the officers that she and French had had similar disputes in the past, but that French had never been physically violent. She also said that she did not wish to press charges, but that she did want to end her relationship with French and wanted him to leave her alone for the night. Drost directed French to go home and cautioned him that returning to Nardone's residence within 24 hours would result in a criminal trespass warning that would ban French from the premises for a year. Drost also informed French that Nardone wanted her personal property returned the following day and offered to facilitate an exchange.

French complied with Drost's directive and left Nardone's residence. During his walk to his apartment -- which was just a short distance away -- French sent Nardone several offensive text messages.4 Nardone showed the messages to the officers, who were still present. At that point, the officers informed Nardone that they could serve French with a notice to stop harassing her and, if he continued to harass her, French could be arrested and charged with a crime.

At Nardone's request, the officers caught up with French outside of his residence and served him with a Cease Harassment Notice ("CHN"). The CHN informed French that he was "forbidden from engaging, without reasonable cause, in any course of conduct with the intent to harass, torment or threaten ... Samantha Nardone." Less than an hour after receiving the notice, French sent Nardone two more messages via Snapchat declaring their relationship over, threatening suicide, and inviting her to his forthcoming funeral.

Later that day, French sent Nardone a message via Instagram asking if she was "ok" and assuring her that "everything is fixable." Having received no response, French sent Nardone several emails approximately four hours later asking to "talk please" and explaining that he wanted to return some of her property. French maintains that he was trying to comply with Officer Drost's directive to return Nardone's property that day. Two and a half hours later, French sent Nardone another email lamenting that she refused to respond to him and insisting that he only wanted to talk to her about their argument. Forty-five minutes or so later, French sent Nardone another message inquiring about whether he could drop off Nardone's property.

At around 7:30 p.m. that evening, Officer Drost called Nardone to check in. Nardone reported that French had been calling her5 and sending her messages via text, email, and various social media platforms throughout the day. She also told Drost that some of her friends had told her that French was looking for her on the University of Maine campus and that she had seen French during a trip to a local store with a friend and assumed French was following her. Nardone agreed to go to the Orono Police Station to complete a sworn written statement.

Nardone's statement recounted her version of the overnight dispute, described French's attempts to communicate with her throughout the day, and stated that French's conduct "terrified" her. While at the police station, Nardone received additional communications from French, which she showed to the officers. She also provided Officer Drost copies of all other messages she had received from French on February 18, 2016.6 At 10:54 p.m., French emailed Nardone asking where she was, followed by a second email about forty-five minutes later stating "I will find u." Nardone asked the officers whether French was in trouble and they replied that he was.

Based on the overnight events, their conversations with Nardone, and French's continued attempts to contact Nardone, Officer Drost and Sergeant Merrill decided to arrest French for harassment. Nardone agreed to assist in that effort. The next time French called Nardone, at 12:30 a.m. on February 19th, she was still at the police station and answered the call on speakerphone, with the officers listening. Nardone told French that he was "not supposed" to talk to her, and neither officer corrected Nardone's apparent misunderstanding of the CHN, which prohibited harassment but not all communication. French responded that he was concerned for Nardone's safety and was simply trying to discuss their fight with her.

Nardone agreed to meet French at her residence in the early morning hours of February 19th. Drost accompanied Nardone home and waited inside for French. Upon French's arrival, Drost promptly arrested him for harassing Nardone. The charges were eventually dropped by the state for insufficient evidence.

B. The September 2016 Incident

At 3:19 a.m. on September 14, 2016, the Orono Police Department received a report of a possible break-in at Nardone's residence. Orono Police Officers Travis Morse and Christopher Gray responded and, upon their arrival, obtained sworn statements from Nardone and her roommate, McDonald.7

Nardone reported that, at some point after the February incident, Nardone and French reconciled. She explained that she was not dating French, but that they had seen each other at a local bar earlier that evening. She told the officers that when she was driving away from the bar, French ran into the street toward her vehicle and accused her of drunk driving. French denies that allegation. Nardone recalled that, upon arriving home, she and her roommate locked the doors, Nardone placed her phone on her bedside table, and she went to sleep around 12:30 a.m. When she awoke at 3:00 a.m., her phone was missing. Nardone and McDonald looked around for the phone and discovered that their apartment door was unlocked. Nardone told Officers Morse and Gray that she suspected French had broken in and stolen her cell phone. She also explained that French had taken her keys the prior week and had not yet returned them. Sometime between 4:00 and 4:30 a.m., the officers left Nardone's residence and returned to the police station.

Shortly thereafter, at approximately 4:43 a.m., Officers Morse and Gray responded to a second call from Nardone reporting that she and her roommate had seen French attempting to enter their home, but that he had run off when the women screamed. As the officers approached Nardone's building, they received another report that French had just been seen running down the street toward his apartment. They then went directly to French's apartment. At some point, two additional officers, Detective Fearon and Officer Orr from the nearby Old Town Police Department, arrived on the scene.8

French's residence had a small front porch with a single door. Appellees describe French's residence as "more akin to an apartment building" -- presumably compared to a single-family home -- but they fail to further explain that comparison. All we can glean from the record is that the dwelling has a single front...

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