Pew v. Scopino

• Decision Date: 15 March 1995
• Docket Number: Civ. No. 93-317-P-H.
• Parties: Sidney J. PEW, et al., Plaintiffs, v. Leo SCOPINO, et al., Defendants.
• Court: U.S. District Court — District of Maine

904 F. Supp. 18

Sidney J. PEW, et al., Plaintiffs, v. Leo SCOPINO, et al., Defendants.

Civ. No. 93-317-P-H.

United States District Court, D. Maine.

March 15, 1995.

COPYRIGHT MATERIAL OMITTED

Richard L. O'Meara, Christopher B. Branson, Murray Plumb & Murray, Portland, ME, for plaintiffs.

Peter J. Brann, Assistant Attorney General, Augusta, ME, for Skofield, Amoroso, Kurz, Ouellette, Atwood, Durgin and Stricker.

Robert M. Napolitano, Portland, ME, for Russo.

George T. Dilworth, Assistant Attorney General, Portland, ME, for Sullivan, Dietz, Barker and O'Brien.

Peter J. DeTroy, III, David P. Very, Theodore H. Kirchner, Norman Hanson & DeTroy, Portland, ME, for Tibbetts, Herrick, Hill, Davis and Holland.

William R. Fisher, Monaghan Leahy Hochadel & Libby, Portland, ME, for Scopino and Strome.

Jeffrey T. Edwards, Preti Flaherty Beliveau & Libby, Portland, ME, for Cayer and Carter.

ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND OTHER PENDING MOTIONS

HORNBY, District Judge.

This civil rights lawsuit arises out of Maine's airborne marijuana eradication program. The Maine Department of Public Safety, Drug Enforcement Agency, Army National Guard, and county sheriffs' offices and local law enforcement agencies have cooperated to find and destroy marijuana crops growing illegally in Maine. The National Guard has provided helicopters, pilots and crews; county and local law enforcement agencies have assigned personnel as "spotters" on board the helicopters to look for marijuana and "ground crews" to respond once marijuana is sighted. If the defendants are to be believed, this has been a carefully planned and conducted law enforcement operation with scrupulous attention to householders' Fourth Amendment rights against unreasonable searches. If the plaintiffs are to be believed, the helicopters have swooped low over living areas, frightening children, causing limbs to break off trees, stirring up dust, terrorizing pets and, in one case, killing a steer — all in all, a hazardous and unsafe intrusion into the lives of apparently law-abiding citizens. Because these factual discrepancies are presented on the defendants' motions for summary judgment, I am not in a position to determine which is the correct version or whether the truth lies somewhere in between. So far as the legal principles are concerned, however, I conclude that for all but one of the overflights, even if events occurred as the plaintiffs describe them, damages are not available under the Federal Civil Rights Act, 42 U.S.C. § 1983, and that the plaintiffs should pursue any state law remedies in state court. In all events, none of the plaintiffs are entitled to relief under the Federal Aviation Act or declaratory and injunctive relief under federal law.

I. BACKGROUND

Because this is a summary judgment motion, I recount the facts in a light most favorable to the plaintiffs. I have not, however, searched the record beyond the parties' statements of material facts and their specific record citations. See Local Rule 19; Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 930-33 (1st Cir.1983).

A. The Pew Overflight

Marijuana Eradication Program ("MEP") helicopters inspected Sidney Pew's property on July 24, 1992, and again on August 30, 1993. Pew and his family live in a two-story log home on about five acres in a rural and hilly area of Andover in Oxford County. Two of the property lines are marked by a two- to three-foot stone wall, but the walls do not meet each other. At the closest point, the walls are about seventy-five feet away from the house. The house sits on a one-half to one-acre lawn, seventy-five feet from a quarter-acre man-made pond. Pew operates his business out of an office in the house.

At about 2:00 in the afternoon of July 24, 1992, Pew heard a helicopter approaching his property; fifteen to thirty minutes later he could see it. Pew saw the helicopter approach his property at treetop level and saw people in the helicopter through its open side door. The helicopter hovered over the pond in his yard, not more than 200 feet (Pew's estimate) above ground level, low enough for the helicopter's rotor "downwash" to create a chop on the pond water, and to cause trees to sway. The helicopter came within fifty feet of Pew's house, at an altitude Pew describes as "treetop level" and "less than 200 feet." Because of the noise, Pew could not hear or talk to his wife, and could not work. Pew took a series of photographs of the helicopter as it flew over or near his property. Expert analysis of one of the photographs concludes that the helicopter was no more than 217 feet above the ground and was about 400 feet horizontally away from Pew and his camera as he stood near his front door. Pew, standing near his house, gestured to the helicopter to leave and then gave it "the finger." Pew and his wife could see smiling expressions on the faces of the two crew members at the open door. Pew felt that he was being spied upon, and was emotionally upset by the incident.

On August 30, 1993, an MEP helicopter flew over Pew's home three times, while performing a "grid search." It was always at an altitude of 400 feet or more above the ground, did not cause the trees to sway, and did not stir up dust or dirt.

Pew's home is located three miles from the Andover Airport, four or five miles from another airport, and ten miles from the Dixfield Airport. Numerous small private airstrips are also located within a ten-mile radius. Pew sees civilian aircraft flying near his home about once every two weeks. Andover is in an area designated for military aircraft training operations. Pew is aware that fixedwing military aircraft flew near his house as often as about once a month throughout the 1980s. Half a dozen times he saw them fly "at treetop level." The frequency of these military flights has recently been reduced because of citizen complaints about noise. Pew has twice seen other helicopters fly near or over his house; one was a 1993 overflight by a rescue helicopter that was larger and flew even lower than those complained of here, but Pew does not remember whether that occurred before or after the 1993 MEP overflight.

B. The Bowie Overflight

The families of Ben Bowie, Sr. and Ben Bowie, Jr. live within 150 yards of one another on adjoining lots in a rural area of Carthage in Franklin County. Ben Bowie, Jr. lives with his wife and two young children on an acre of land. Ben Bowie, Sr. lives with his wife (Gertrude) and son (Brandon) on 3.9 acres. A lawn surrounds the two houses, creating a single cleared area flanked by woods. On September 17, 1992, in the afternoon, all four members of the Bowie, Jr. family were outside when an MEP helicopter approached. When Ben, Jr. first saw the helicopter it was over a neighbor's house 150 to 200 yards from where he was standing. He could discern three people on board: the pilot, a passenger in front, and a man in the open side doorway looking down at him. The helicopter flew over the property at about treetop level, making a deafening noise and scaring the children. Gertrude Bowie, next door in the Bowie, Sr. home, heard the helicopter and looked out to see that it was over her garden "just a few feet from the house," below treetop level and blowing up dust. She could see a person looking down at her. The helicopter was "right there ... just watching her."

Moments later, trees on the Bowie, Jr. property were swaying and branches were blown off as the helicopter hovered forty to sixty feet over a pigpen 80 yards from the Bowie, Jr. house. Ben, Jr. could see that the helicopter crew members were looking right at him and his family; he recognized one crew member, Stacey Carter (whom he knew from school) standing in the open door and looking down. The helicopter, at an altitude of fifty to sixty feet, appeared to follow Gertrude and Brandon as they walked across the lawn to meet up with the Bowie, Jr. family, and continued to follow them, hovering about twenty feet above treetop level, as they walked down a road away from their property. In all, the helicopter flew over the Bowie, Jr. and Sr. property for ten to fifteen minutes; three times it hovered directly over the roof of the Bowie, Sr. house lower than 100 feet above the ground and as low as forty feet over the roof, according to Ben, Jr.'s observations. It appeared to Ben, Jr. that the helicopter crew was observing a "bunch of sumac" that was growing on the Bowie, Sr. property. Based on analysis of the eyewitness reports, the plaintiffs' expert concluded that the helicopter flew at approximately 100 feet above the ground over the Bowie property.

All the members of the Bowie family suffered emotional distress as a result of the overflight. The Bowie, Jr. family's pet steer was found dead at the end of a rope tether after the overflight, and the Bowie, Sr. dog was noticeably shaken up.

Gertrude Bowie has observed airplanes flying over the vicinity of her house as often as two or three times per day. She recalls no helicopter overflights prior to the MEP incident. The nearest airport is Dixfield, about ten miles away. Ben, Jr. heard a helicopter fly near his house about one week prior to the MEP overflight, and has observed airplanes fly over the vicinity of his house about once or twice a week, at altitudes of 1,000 feet or higher.

C. The Keene Overflight

Ronald and Karen Keene and their daughter used to live in a rented house in the woods along the Webb River in Carthage, Franklin County — less than a two-minute drive from the Bowies. On the afternoon of September 17, 1992, the Keenes were returning home in their truck when they heard the sound of a helicopter as they came up their driveway. Ronald Keene has no memory of the incident, which allegedly traumatized him because of Vietnam experiences. The helicopter appeared to Karen Keene to be at or just below treetop level, as she viewed it through a gap between the left side of the house...