By Sean Ociepka, seano@mainelawyersreview.com
A split panel of the U.S. Court of Appeals for the First Circuit has allowed a Fourth Amendment claim of a University of Maine student to proceed, after reversing a decision of the District Court that granted summary judgment to law enforcement officers. Christopher French claimed that Orono police officers violated his rights by repeatedly coming into the curtilage of his home to knock on his door and yell at him to come out while investigating a domestic dispute with his girlfriend. Timothy C. Woodcock of Eaton Peabody in Bangor represents French.
French was a student at the University of Maine. At around 3:00 a.m. on the morning of September 14, 2016, police received a report of a possible break-in at the apartment of Samantha Nardone, who had been in a relationship with French. Nardone suspected that French had broken into her apartment and stolen her phone. Officers went to French’s apartment to try to locate him and question him about the break-in.
Officers Travis Morse and Christopher Gray arrived at French’s home a little after 5:00 a.m. They knocked on the front door and announced that they were officers looking to speak with French, but no one answered. Morse then left, while Gray remained at the home. He went next door to a neighbor’s driveway where he “observed a young man peering out the basement window” of French’s home. Gray then “shined his flashlight through the window, which caused the young man to cover the window and turn off the basement lights.”
The officer went back to the front door and knocked, which caused a dog to start barking, but still no one came to the door. Inside the home, more lights were turned off and coverings drawn over the windows. Morse then returned to the home with other officers and peered through closed curtains in the kitchen window.
Although Morse expressed some hesitation to the other officers that they’d reached the limits of what they could accomplish with a “knock and talk,” two officers went over to French’s bedroom window and “knocked forcefully” on the window frame while yelling for French to come out. One officer shined his light into the bedroom. At some point, one of French’s roommates finally came to the front door and agreed to locate French. A short while later, French appeared, feeling as though he “had no choice” but to come out. The officers recovered Nardone’s phone from French.
The officers did not dispute on appeal that their actions amounted to a constitutional violation — nevertheless, they claimed they were entitled to qualified immunity because the unlawfulness of their conduct was not “clearly established” at the time of the events.
The First Circuit determined that the law was “clearly established” based largely on the U.S. Supreme Court’s 2013 decision in Jardines v. Florida, which held that it was unconstitutional for law enforcement officers to bring a drug-sniffing canine into the curtilage of a home without a warrant.
Attorney Woodcock said Jardines looked at Fourth Amendment protections in the home in the context of a social license. “The Supreme Court made it clear that, although there is a social convention to allow strangers to go up to a front door (or perhaps even a side door) and knock on the door, if there is no response, you leave. This is the common understanding of the social license.”
Woodcock said the First Circuit adopted this “social license” analysis of the qualified immunity question. “The critical finding is that the occupants of the house sent a clear signal that they withdrew any social license that may have existed by refusing to answer the door and drawing the curtains.” Because the officers in this case exceeded that social license, they were not entitled to qualified immunity.
Judge Lynch filed an opinion dissenting to this conclusion; arguing that the decision “will disincentivize police from taking action after persons of any gender have credibly alleged that they have been threatened and are frightened by former romantic partners.” Woodcock, on the other hand thinks the decision is “good for law enforcement because it provides clear guidance — that officers should make these decisions based on recognized social customs.”
Kasia Soon Park and Edward R. Benjamin, Jr. of Drummond Woodsum in Portland, represent defendants. Park said they were “disappointed with that outcome and, as recognized by the dissent, strongly believe that it is contrary to Supreme Court precedent, which has repeatedly held that ‘clearly established law’ should not be defined at a high level of generality. We will be filing a petition for rehearing en banc as to that part of the opinion.”
The opinion in French v. Merrill, MLR #201-21, is summarized in Maine Lawyers Review issue #20, volume 29 at page 11.