March v. Frey, Docket No. 2:15-cv-515-NT

• Decision Date: 28 April 2020
• Docket Number: Docket No. 2:15-cv-515-NT
• Citation: 458 F.Supp.3d 16
• Parties: Andrew MARCH, Plaintiff, v. Aaron M. FREY, et al., Defendants.
• Court: U.S. District Court — District of Maine

458 F.Supp.3d 16

Andrew MARCH, Plaintiff,

v.Aaron M. FREY, et al., Defendants.

Docket No. 2:15-cv-515-NT

United States District Court, D. Maine.

Signed April 28, 2020

Brandon M. Bolling, Pro Hac Vice, Thomas More Law Center, Ann Arbor, MI, Stephen C. Whiting, The Whiting Law Firm, Portland, ME, for Plaintiff.

John J. Wall, III, Monaghan Leahy, LLP, Portland, ME, for Defendant City of Portland.

Christopher C. Taub, Office of the Attorney General, Leanne Robbin, Assistant Attorney General, Augusta, ME, for Defendant Aaron M. Frey.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Nancy Torresen, United States District Judge

Plaintiff Andrew March is a protester who opposes abortion. He alleges that a provision of the Maine Civil Rights Act has been applied unconstitutionally against him, in violation of his First and Fourteenth Amendment rights. Before me are motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 from Defendant Aaron Frey (the "Attorney General ") (ECF No. 162) and Defendant City of Portland ("Portland " or "the City ") (ECF No. 163), and a motion for partial summary judgment from Mr. March against the City (ECF No. 165). For the reasons set out below, the Attorney General's motion and the City's motion are GRANTED , and Mr. March's motion is DENIED .

BACKGROUND

I. Factual Background¹

A. Increasing Noise Complaints and the Portland Police Department Response

Planned Parenthood operates a facility at 443 Congress Street in Portland, Maine (the "Health Center "), where it provides counseling and health care services, including abortions. Pl.'s Mot. Facts ¶¶ 12–13.

The Health Center is located on the second floor, and its windows overlook the sidewalk below. City's Mot. Facts ¶¶ 41–42; JSR Exs. 1, 6.² Congress Street is a busy street with lots of traffic and noise. Pl.'s Mot. Facts ¶ 62. Monument Square, a public area that sometimes hosts events with amplified noise, is located nearby, and the portion of Congress Street where the Health Center is located sometimes sees parades and protests. Pl.'s Mot Facts ¶¶ 63–66.

The Portland Police Department began receiving increased complaints around February of 2013 about noise created by protesters outside of the Health Center. Pl.'s Mot. Facts ¶ 14. On February 18, 2013, Portland Police Department Chief Michael Sauschuck wrote a letter to his officers on the topic of sidewalk protests in front of the Health Center, and he called their attention "to the Maine Civil Rights Act prohibition against creating noise that can be heard within the building where health services are being provided." Pl.'s Mot. Facts ¶ 16.³ Attached to the letter was a document containing synopses of "[p]ossible criminal offenses," including the state's disorderly conduct, harassment, and obstructing public ways laws, and "[p]ossible civil offenses," including the state's civil disorderly conduct provision and the Maine Civil Rights Act. JSR Ex. 19 at 4–6 (ECF No. 148-19). On July 28, 2015, an updated version of Chief Sauschuck's February 2013 letter and statute summary was recirculated by Richard Bianculli, the Portland Police Department's Neighborhood Prosecutor. JSR Ex. 19 at 8–9.⁴

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

[a]fter having been ordered by a law enforcement officer to cease such noise, intentionally making noise that can be heard within a building and with the further intent either:

(1) To jeopardize the health of persons receiving health services within the building; or

(2) To interfere with the safe and effective delivery of those services within the building.

5 M.R.S.A. § 4684-B(2)(D) (the "Noise Provision ").

At times pertinent to this action, Planned Parenthood paid the City to have Portland police officers work an overtime detail in front of the Health Center during times when protesters were present. Pl.'s Mot. Facts ¶ 26; JSR Ex. 19 at 7. On July 9, 2014, Lt. Glen McGary of the Portland Police Department sent an email to the "PPD Shift Log" regarding the expectations for officers participating in the "Planned Parenthood Detail." Pl.'s Mot. Facts ¶ 21.⁵

B. The Plaintiff's Protest Activities and the Portland Police Department's Interactions with Him

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

1. The November 6, 2015 Encounter

On November 6, 2015, Mr. March was on the sidewalk in front of the Health Center. Pl.'s Mot. Facts ¶ 72. Portland Police Officer Jason Nadeau received a report from dispatch of a complaint from someone at the Health Center that there was a person outside making noise at a volume that was interfering with the provision of medical services. City's Mot. Facts ¶¶ 5–6. When Officer Nadeau arrived at the Health Center, there was a male speaking loudly enough that Officer Nadeau could hear him from a distance of about a half city block to a full city block. Pl.'s Mot. Facts ¶ 79.

Officer Nadeau approached the male, later identified as Mr. March, and much of the encounter was captured on video. JSR Exs. 3 and 4.⁶ The encounter can best be described as a conversation between Officer Nadeau and Mr. March. The tone was civil on both sides. Officer Nadeau spoke softly, and others in the area occasionally chimed in. Mr. March spoke in a considerably louder voice than anyone else on the recording, but he was not shouting. JSR Ex. 3.

The substance of the conversation can be summed up as follows.⁷ Officer Nadeau informed Mr. March that officers had received a complaint that someone could be heard within the building. Officer Nadeau suggested that Mr. March was the individual who could be heard. Mr. March demurred. Officer Nadeau informed Mr. March that he (Nadeau) heard him when he rolled up from "back there." Mr. March asked whether there was a noise ordinance. Officer Nadeau informed him that there was. Mr. March asked Officer Nadeau to give him an objective volume that he could speak at. Officer Nadeau asked Mr. March if he could bring his voice down so that they could not hear him inside. Mr. March asked how he (March) would know whether they could hear him from inside, and Officer Nadeau stated, "You can bring it down from where you're at right now or go from there." Mr. March continued to ask for an objective standard. Officer Nadeau then said:

Listen, I'm here for a noise complaint.... They say that they can hear you.... I'm not trying to give you a hard time. I'm not trying to move you guys out of here. I know you guys have to be here.... But when they call in a complaint, I have to come talk to you.

Mr. March responded, "[G]ive me a way to continue to speak my convictions while honoring what you're saying." Officer Nadeau said, "Just bring your voice down a little. Can you do that?" Mr. March agreed to bring his voice down a little. But he questioned whether the people inside the building could lie and say that they could hear him even if he was just whispering, and Officer Nadeau acknowledged that they could. Officer Nadeau ended the conversation shortly thereafter. JSR Exs. 3 and 4.

Shortly after this encounter, a discussion occurred between Officer Nadeau, Sergeant Chuck Libby, and Major Donald Krier of the Portland Police Department, and Major Krier determined that a warning under the Noise Provision of the MCRA was appropriate. City's Mot. Facts ¶¶ 15–16. Major Krier delivered the warning, which was partially captured on video. JSR Ex. 7. The encounter was civil. The substance of the conversation was as follows.⁸ Mr. March told Major Krier that Officer Nadeau had not previously warned him and had only asked him for a favor. Mr. March asked whether he was being officially warned by Major Krier. Major Krier responded, "About noise, ya. All's I'm doing is I'm letting you know what it's all about." Major Krier provided Mr. March with a copy of the MCRA. Mr. March asked for further explanation about the MCRA, and Major Krier indicated that the law was self-explanatory and suggested that Mr. March consult a lawyer if he had any questions.⁹

2. The November 13, 2015 Complaint

Portland Police Department records indicate that on November 13, 2015, Lt. William Preis and Officer Argitis responded to complaints from Health Center staff that they could hear protesters on the street below....