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Kean v. City of Manchester

United States District Court, D. New Hampshire

February 4, 2016

Christopher Kean, Plaintiff
City of Manchester; Manchester Police Department; Chief David J. Mara; and Officer Kelly L. McKenney, Defendants Opinion No. 2016 DNH 022



In September of 2012, plaintiff, Christopher Kean, was arrested and charged with impersonating a police officer, in violation of N.H. Revised Statutes Annotated (“RSA”) 104:28-a. He was subsequently acquitted of that charge. Kean then filed this suit 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 a police-style jacket that was seized from him.

By order dated March 30, 2015, the court granted defendants’ motion for judgment on the pleadings as to counts one, three, five, and eight of Kean’s complaint. Defendants now move for summary judgment on the remaining claims. Plaintiff objects.

Standard of Review

When ruling on a motion for summary judgment, the court must “constru[e] the record in the light most favorable to the nonmoving party and resolv[e] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). 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). See also Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). 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).


Viewed in the light most favorable to Kean, as they must be at this stage, the relevant facts are as follows.[1] Kean is an avid collector of police memorabilia. (Obj. to Summary Judgment, Exhibit D (“Kean Aff.”)¶ 2.) In 2012, a former Manchester police officer gave Kean a Manchester Police Department (“MPD” or “Department”) jacket. (Id. at ¶ 3.) The jacket, which was like those issued by the MPD from 1995 to 1999 to officers for wear in colder weather, is navy blue with a fur collar, silver buttons and an official Manchester Police Department patch on the left shoulder. (Obj. to Summary Judgment, Exhibit A (“Biron Dep.”) 21:15-18.) Kean does not contest the fact that the same MPD patch is currently in use by the Department.

On September 4, 2012, Kean was wearing the jacket as he walked from his home to a local convenience store. (Kean Aff. ¶ 4.) Along with the jacket, which was unbuttoned, he wore jeans, a t-shirt bearing the name of his company, and work boots.[2] (Kean Aff. ¶ 6.) As Kean walked past the Kelley Street Police Substation, Officer Christopher Biron saw him wearing the jacket and mistook him for a member of the MPD. (Mot. for Summary Judgment, Exhibit A (“Biron Aff.”) ¶ 4.) After he determined that Kean was not a member of the Department, Biron approached Kean and asked him why he was wearing the jacket. (Biron Dep. 23:9-10.) Kean responded that he collected police memorabilia and that he had been given the jacket by a former customer. (Kean Aff. ¶ 8.) He told Biron that he displayed his police memorabilia by wearing it. (Id.)

Biron then explained that because Kean was wearing the jacket, Biron had mistaken him for a member of the MPD. (Biron Dep. 24:14-18; see also Kean Aff. ¶ 7.) Officer Biron told Kean that, while his possession of the jacket was not problematic, Kean could be mistaken for a member of the MPD while wearing it in public. That, said Officer Biron, could expose him to risk of danger. (Kean Aff. ¶ 7.; see also Biron Dep. 24:1-18) Biron also told Kean that, if he continued to wear the jacket, he could be arrested for false personation of an officer. (Biron Dep. 25:3-9.)

Upon returning home, Kean spoke with his lawyer, who advised him that wearing the jacket in public did not constitute a criminal offense because, to violate the false personation statute, Kean would have to intend to be recognized as a police officer.[3] (Kean Aff. ¶ 9.) Kean then determined that he would continue to wear the jacket in public, because, “[he] had a right to do so, not because [he] intended to be recognized as a police officer.” (Kean Aff. ¶ 9.)

Officer Biron documented the encounter with Kean and radioed police dispatch, sending a broadcast message to other MPD officers that Kean was wearing a police jacket and that if Kean continued to wear the jacket, he could be arrested for false personation. (Biron Dep. 27:7-9; 29:12-15; 31:3-7.) Finally, Biron emailed Captain Robert Cunha, who was at that time the head of the MPD Legal Division, requesting information on the false personation statute. (Biron Dep. 27:7-28:7.) Captain Cunha promptly sent Biron the language of the statute, noting, “The challenge . . . would be proving the intent to be recognized as a police officer.” (Obj. to Summary Judgment, Exhibit 6.) Biron did not modify the message he had broadcast to the other officers. Biron thought that if Kean continued to wear the jacket after he had been informed that he had been mistaken for a police officer and of “the dangers associated with that, ” and after being warned not to wear the jacket for those reasons, Kean “would have satisfied the intent element of the statute.” (Biron Dep. 36:9-16; 37:5-23.)

The outside temperature the next day was 80 degrees, with 62 percent humidity. (Mot. for Summary Judgment, Exhibit B (“McKenney Aff.”) ¶ 2.) Nevertheless, Kean again donned the police jacket to walk from his home to the local convenience store. (Kean Aff. ¶ 10.) As he had the day before, Kean wore the jacket unbuttoned, with jeans, a t-shirt bearing his company’s name, and work boots. (Id.) Officer Kelly McKenney saw Kean walking on Kelley Street. She had heard Officer Biron’s dispatch about Kean the day before, and recognized the jacket as having been issued by the Department in the past. (Obj. to Summary Judgment, Exhibit B (“McKenny Dep.”) 30:2-20-31:1-6.) She also noted the warm weather conditions. (Id. at 29:5-8.)

Officer McKenney followed Kean into the convenience store and asked if he was Christopher Kean. (Kean Aff. ¶ 11.) When Kean responded that he was, McKenney placed him under arrest for “false personation, ” (known colloquially as “impersonating a police officer”) in violation of RSA 104:28-a. (Id.) Kean protested, to no avail, that his attorney told him that he had the right to wear the jacket. (Kean Aff. ¶ 11.)

The charges against Kean were initially dismissed in the Manchester district court, but a Hillsborough County grand jury returned an indictment charging him with a single count of violating RSA 104:28-a. Prior to trial, Kean moved to suppress evidence - the jacket - arguing that his arrest was not supported by probable cause, so the jacket was unlawfully seized. (Mot. for Summary Judgment, Exhibit 4, p. 1.) Following a hearing, the court denied Kean’s motion to suppress, finding that the “undisputed facts establish that Officer McKenney had probable cause to arrest” Kean. (Id. at p. 5.) The case was tried, and Kean was acquitted.

Kean then moved for return of his jacket. See State v. Kean, 122 A.3d 982, 983 (N.H. 2015). Following a hearing, the state court found that the jacket and the patch were “at all times the property of the City of Manchester, ” in light of a “Manchester Police Department policy in place that required [such uniform] items to be ‘turned in’ upon discontinuation or upon the retirement of an officer.” Id. at 983, 984-95. The court nevertheless ordered the jacket to be returned to Kean, albeit with the patch removed from the sleeve. Id. Kean appealed that decision to the New Hampshire Supreme Court, which affirmed the trial court’s determination that Kean had no ownership interest in the jacket, and also held that the trial court had erred in ordering that the jacket be returned to Kean after removal of the patch. Id. at 985-85.

Remaining in this civil suit are Kean’s Section 1983 claims for retaliatory and unlawful arrest, in violation of the First and Fourth Amendments respectively, and a municipal liability claim. He also advances state law claims for false imprisonment and unlawful arrest, vicarious liability (related to the false imprisonment and unlawful arrest claims) against the City of Manchester and Chief of Police, and a negligent training and supervision claim against the City of Manchester and the Chief of Police. Defendants argue that they are entitled to summary judgment on all remaining claims because Kean’s arrest was supported by probable cause, and, alternatively, because defendants are protected by qualified immunity as well as various state law immunities.


I. Wrongful Arrest (Count IV)

A. Probable Cause

According to Kean, Officer McKenney violated his Fourth Amendment rights by arresting him without probable cause to believe that he had violated New Hampshire’s false personation statute. More specifically, Kean argues that Officer McKenney did not have probable cause to believe that Kean intended to be recognized as a police officer, an essential element of the criminal offense.

Kean made a similar argument in his motion to suppress evidence before the state superior court, contending that “his arrest was unlawful because Officer McKenney did not have probable cause to believe defendant had the specific intent to be recognized as a police officer.” (Mot. for Summary Judgment, Exhibit 4, p. 3.) The superior court held a hearing on the motion, at which Officer Biron testified. Following the hearing, the trial court issued a well-reasoned decision denying Kean’s motion to suppress, finding that Officer Biron’s testimony was “credibl[e] and persuasive[]” ...

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