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Kean v. City of Manchester

United States District Court, D. New Hampshire

March 30, 2015

Christopher Kean, Plaintiff
v.
City of Manchester; Manchester Police Department; Chief David J. Mara; and Officer Kelly L. McKenney, Defendants Opinion No. 2015 DNH 069

ORDER

STEVEN J. McAULIFFE, District Judge.

In September of 2012, a Manchester police officer noticed plaintiff, Christopher Kean, wearing an older style Manchester Police Department ("MPD") jacket, with an official department emblem attached. The officer informed Kean that he should not wear the jacket in public, as he might be confused with an actual Manchester police officer. The following day, Kean was again seen wearing the police jacket in public. He was arrested and charged with impersonating an officer, in violation of N.H. Revised Statutes Annotated ("RSA") 104:28-a. He was, however, subsequently acquitted of that charge.

Kean then filed this action against the arresting officer, Chief of Police David Mara, the Manchester Police Department, and the City of Manchester, seeking compensatory and punitive damages, as well as attorney's fees, for alleged violations of his First and Fourth Amendment rights. He also advances various state common law tort claims. Finally, he seeks injunctive relief, in the form of an order compelling defendants to return his jacket. Defendants move for judgment as a matter of law on several of Kean's claims. See Fed.R.Civ.P. 12(c). Kean objects.

For the reasons discussed, defendants' motion for judgment on the pleadings as to counts one, three, five, and eight of Kean's complaint is granted.

Standard of Review

A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is subject to the same standard of review applicable to a motion to dismiss under Rule 12(b)(6). See Portugues-Santana v. Rekomdiv Int'l, Inc., 725 F.3d 17, 25 (1st Cir. 2013). Accordingly, the court must accept as true all well-pleaded facts in Kean's complaint and indulge all reasonable inferences in his favor. See SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). To survive defendants' motion, each count of the complaint must allege all of the essential elements of a viable cause of action and "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted). Legal boilerplate and general conclusory statements are insufficient to state a cognizable claim. See Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012).

Background

According to Kean's complaint, he is an avid collector of police memorabilia. Knowing that, a former Manchester police officer gave him an older MPD jacket - a style that Kean says the MPD has not used since 1999. The jacket does, however, bear an official patch that is apparently still in use. On September 4, 2012, Kean was wearing that jacket while walking to a convenience store located a short distance from his home. As he passed a police substation, an officer approached him and informed him that, while possessing the jacket was not a crime, he could not wear it in public, as people might reasonably confuse him with an actual police officer. Upon returning home, Kean says he contacted his lawyer, who opined that wearing the jacket in public did not constitute a criminal offense.

The following day, Kean again wore the jacket on his trip to the convenience store. Officer Kelly McKenney approached Kean and asked why he was still wearing the jacket despite having been told by another officer that he should not wear it in public. According to Kean, he "explained that he had a right to wear it." Complaint at para. 18. Officer McKenney disagreed, arrested Kean, and he was charged with "false personation, " (also known as "impersonating a police officer") in violation of RSA 104:28-a.

According to Kean, the charges were dismissed in the Manchester district court. But, a Hillsborough County grand jury returned an indictment charging Kean with a single count of violating RSA 104:28-a. The case was tried to the Hillsborough County Superior Court, Northern Division. At the close of the County's case in chief, the court entered judgment of acquittal. This civil suit followed.

In his ten-count complaint, Kean advances the following federal and state law claims:

Count 1 Retaliatory Prosecution, in violation of the First Amendment
Count 2 Retaliatory Arrest, in violation of the First Amendment
Count 3 Malicious Prosecution, in violation of the ...

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