The opinion of the court was delivered by: Steven J. McAuliffe United States District Judge
In this civil action, Carla Gericke asserts claims under both the United States Constitution and New Hampshire's common law against the Town of Weare, the Weare Police Department, the department's Chief (Gregory Begin), and three of its officers: Lieutenant James Carney, Sergeant Joseph Kelley, and Sergeant Brandon Montplaisir. Defendants have moved for summary judgment, asserting that they are entitled to judgment as a matter of law on each of Gericke's claims. Gericke objects and has filed a cross-motion for summary judgment.*fn1
For the reasons discussed, defendants' motions for summary judgment (documents no. 19 and 20) are granted in part and denied in part. Gericke's motion for summary judgment (document no. 21) is denied.
When ruling on a motion for summary judgment, the court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals "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). In this context, "a fact is 'material' if it potentially affects the outcome of the suit and a dispute over it is 'genuine' if the parties' positions on the issue are supported by conflicting evidence." Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Nevertheless, if the non-moving party's "evidence is merely colorable, or is not significantly probative," no genuine dispute as to a material fact has been proved, and "summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). The key, then, to defeating a properly supported motion for summary judgment is the non-movant's ability to support his or her claims concerning disputed material facts with evidence that conflicts with that proffered by the moving party. See generally Fed. R. Civ. P. 56(c). It naturally follows that while a reviewing court must take into account all properly documented facts, it may ignore a party's bald assertions, unsupported conclusions, and mere speculation. See Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997). See also Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
On March 25, 2010, Carla Gericke was arrested for disobeying a police officer. She was subsequently charged with that crime, as well as with obstructing government administration, and unlawful interception of oral communications. Immediately prior to her probable cause hearing in state court, however, those charges were dropped and the case was referred to the Hillsborough County Attorney's office for presentment to a grand jury. New charges were never filed and no indictment was returned.
The record, as currently developed, includes many affidavits and a substantial volume of deposition testimony describing the events giving rise to Gericke's civil claims. Not surprisingly, the parties do not agree on all of the details surrounding Gericke's arrest. Nevertheless, they do agree on most of the legally relevant facts, which are as follows.
On March 25, 2010, at approximately 11:30 PM, Sergeant Joseph Kelley of the Weare Police Department observed a car traveling past him at a high rate of speed. Using radar equipment, he determined that the vehicle was traveling at 47 mph in a 30 mph zone. He initiated a traffic stop and the vehicle pulled over to the side of the road, near the Weare Middle School. A second vehicle, driven by Gericke, pulled in directly behind Sergeant Kelley's police cruiser and stopped. Given the lateness of the hour, the darkness, and the presence of four unknown people at the scene (two drivers and two passengers), Kelley understandably found Gericke's presence to be a distraction, requiring Kelley to divert his attention from the vehicle he had stopped. Traffic stops, particularly those conducted late at night, pose a risk of danger to police officers, and Gericke's presence at least arguably added to that potentially dangerous situation.
Sergeant Kelley approached Gericke's vehicle and instructed her to leave. Gericke initially resisted, saying she was traveling with the people whom Kelley had stopped. She questioned why he had detained them, and, when Sergeant Kelley informed her that they had been speeding, she interjected herself into the situation by questioning the validity of the stop. Eventually, however, she complied - she moved her car from directly behind Kelley's cruiser into an adjacent parking area, where she positioned it parallel to the cruiser, about 30 feet away.
Sergeant Kelley then turned his attention to the driver of the other car, Tyler Hanslin. Kelley reports that Hanslin was verbally abusive, also questioned the validity of the stop, and commented that it was "bullshit." Hanslin then made some unusual movements with his hands around the area of his belt, and Sergeant Kelley asked him if he had any weapons. Hanslin disclosed that he was carrying a firearm. Kelley instructed him to get out of the car, so he could perform a pat-down search. Hanslin complied, and Kelley removed a Glock 9 mm semi-automatic handgun from Hanslin's waistband.
Meanwhile, Gericke had exited her car and was standing behind a small fence that separated her from Sergeant Kelley.
She yelled to him that she was recording his actions and pointed what Kelley suspected was a camera at him. And, although Gericke denies it, Kelley says she shouted words encouraging Hanslin not to cooperate. See, e.g., Affidavit of Sergeant Joseph Kelley (document no. 20-2) at para. 8 ("Ms. Gericke verbally was encouraging Mr. Hanslin not to comply with my motor vehicle stop and shouted 'remember our cause.'"). Gericke later explained that she believed Kelley's decision to stop Hanslin for speeding was "bizarre" and said she saw her own role as that of a witness to the unfolding events, who should document what was transpiring. Gericke Deposition (document no. 26-4) at 61, 65. Curiously, however, Gericke also testified that she knew her video camera was not working at the time. Nevertheless, she kept it pointed at Kelley. Id. at 68. Sergeant Kelley responded by telling Gericke to return to her car. She complied, but rolled the window down and "kept the camera trained on him." Id. at 64.
According to Sergeant Kelley, due to Gericke's continuing involvement, what had begun as a routine traffic stop had, in his view, become a potentially dangerous situation. He was in the presence of four unknown people (at least one of whom had been carrying a firearm); Hanslin was being less than fully cooperative; Gericke was shouting at him and protesting the stop; and it was late at night, and he was alone. Accordingly, he called for assistance. Three members of the Weare Police Department responded: Lieutenant James Carney, Sergeant Robert Peterson (not a defendant in this action), and Officer Brandon Montplaisir. Around the same time, a third civilian car arrived at the scene. The driver, William Rodriguez, exited the vehicle. The officers were, then, presented with a late night situation that involved three vehicles, six unknown people, one (known) firearm, and a number of people outside of their vehicles.
The responding officers divided their attention among the three cars. Lieutenant Carney responded to Rodriguez, Sergeant Kelley returned his attention to Hanslin, Officer Montplaisir responded to Gericke, and Sergeant Peterson provided general assistance to the other officers. Before Officer Montplaisir approached Gericke, Sergeant Kelley told him that Gericke had been interfering with Kelley's ability to conduct the traffic stop and that she may have a video camera. Montplaisir approached Gericke, identified himself as a police officer, and asked for her license and registration. Gericke says he was shouting at her, so she "decided to lock my door and roll my window up so that I could just talk to him through a crack." Gericke Deposition at 74.
In response to Officer Montplaisir's request that she produce her driver's license and vehicle registration, Gericke said, "I'm confused. Is that a lawful order? I'm not driving the car, I'm parked in a parking lot. I don't understand why I would have to give you my driver's license - my driver's license and registration." Id. at 74-75. Montplaisir explained that, under state law, she was required to produce that information and, for a second time, he asked her to do so. Again, however, Gericke balked, saying "Are you sure this is a lawful order? I'm not driving the car, I'm sitting in a parking lot, I don't see why I would have to give you my license and registration." Id. at 75. See also Id. at 76 ("So twice I said to him are you - you know, is that a lawful order, why do I have to provide it, I'm not driving the vehicle, I'm parked in a parking lot."). Officer Montplaisir explained to Gericke that if she did not produce her license and registration, he was going to place her under arrest and, if necessary, officers would use force to remove her from the car. Montplaisir Deposition (document no. 20-25) at 44-45.
Gericke says she then began to look for her driver's license. Gericke Deposition at 76. She claims she "found the State Farm [insurance] card, and I gave that to him through the window, and he threw it back in my face," id. - apparently through the "crack" that she left in the window when she rolled it up. At that point, Montplaisir decided that he had given Gericke sufficient opportunity to comply with his (repeated) requests for identification, concluded that she was not going to comply with that directive, and told her that she was under arrest for disobeying a police officer. He instructed Gericke to get out of her car. According to Montplaisir, Gericke refused to exit the vehicle and he again instructed her to do so. See Affidavit of Brandon Montplaisir (document no. 20-11) at para.
10. Eventually, Montplaisir says, Gericke's passenger persuaded her to comply and Gericke exited the vehicle. Officer Montplaisir then placed her under arrest for disobeying a police officer, handcuffed her, and escorted her to a police cruiser without incident. Gericke was transported to the police station, where she was charged with disobeying a police officer, in violation of N.H. Rev. Stat. Ann. ("RSA") 265:4. She was also charged with obstructing a government official, in violation of RSA 642:1, and unlawful interception of oral communications, in violation of RSA 570-A:2, I (also known as New Hampshire's law against wiretapping and eavesdropping).
It is not entirely clear from the record how the police came to possess Gericke's video camera. See generally Plaintiff's Memorandum (document no. 26-1) at 4-5. But, it is undisputed that they did take it into their possession. According to Gericke, after she was processed at the police station, she asked unidentified police officers to provide her with a receipt for the camera. She claims they refused and she was escorted out of the station.
A criminal probable cause hearing was scheduled for May 25, 2010. Immediately prior to that hearing, however, the New Hampshire prosecutor for the Town of Weare, Attorney Catherine Baumann, "nolle processed the pending charges, and [she] sent the matter to the Hillsborough County Attorney for presentment to the Hillsborough County Grand Jury." Affidavit of Catherine Baumann (document no. 20-15) at para. 2. On November 2, 2010, police obtained a warrant, authorizing them to search the contents of Gericke's video camera - presumably because the video they believed Gericke had taken that night might reveal the extent (if any) to which she obstructed Sergeant ...