McInnis v. Maine

United States Court of Appeals
For the First Circuit

No. 10-1437

JAMES MCINNIS SR., ET AL,

Plaintiffs, Appellants,

v.

STATE OF MAINE, ET AL,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.

William Maselli was on brief, for the appellant.
Janet T. Mills, Attorney General, with whom William R. Fisher,
Assistant Attorney General, Peter T. Marchesi, and Cassandra S.
Shaffer, were on brief, for the appellee.

March 7, 2011

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 SOUTER, Associate Justice. Plaintiff James McInnis was

convicted of both federal and state offenses, and sentenced to a

period of probation on the state charge, set to begin at the

conclusion of the term of his state incarceration. On January 5,

2007, during what McInnis’s probation officer believed to be the

probation period, he authorized McInnis’s warrantless arrest for

violating probation and a warrantless search for drugs suspected to

be in his possession. Actually, the probation period had expired

before the search and arrest, apparently because the original

sentence had been reduced unbeknownst to the state probation

department.

This is an appeal from summary judgment in ensuing actions

brought by McInnis and the other plaintiffs under 42 U.S.C. § 1983

and state tort law against the State of Maine, York County and a

series of state and county officers and their superiors, who made

the warrantless search and arrest. McInnis argues that findings of

qualified immunity erroneously deprived him of his right to press

his claims of false arrest and illegal search, and he says that the

trial court failed to recognize the adequacy of a negative records

claim, as well as a genuine fact issue said to affect the

application of a statutory limitation on tort liability of a state

officer. We affirm.

In 2006, after McInnis was released from his earlier custody

on completion of his sentence, he spoke by phone with a state

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probation officer, Lew Randall, who told McInnis to report to him

in accordance with the probation terms. McInnis responded

(correctly as it turns out) that he was not on probation at that

point and said that he would have his lawyer explain his status to

Randall. This was not done, though for his part Randall took no

immediate action against McInnis until he got a call from the

defendant Kenneth Hatch, a Lincoln County deputy sheriff, who is

McInnis’s half-brother (and is said to have been the victim of

McInnis’s state criminal offense).

Hatch said that he had spoken with an informant who had

previously given information that had never been subject to

question and who was known to be acquainted with McInnis.

According to the informant, McInnis and his son had “ripped off”

someone of twenty-five pounds of marijuana, which was then in

McInnis’s possession at the dwelling of the plaintiff Dee McInnis.

Randall confirmed (as he believed) that McInnis was on probation.

Hatch had his supervisor’s approval to pass the information along

to other law enforcement officials as was customary, Randall being

the first he called. Hatch also called defendant William Deetjen,

an officer of the Maine Drug Enforcement Administration. Deetjen

contacted Randall, who gave him authority both to arrest McInnis

for violating probation and to search for the drugs, in each

instance without a warrant, which the standard probation conditions

made unnecessary. Deetjen himself knew that a federal judge had

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recently revoked an order authorizing McInnis’s supervised release

because he had lied to a federal probation officer, failed to

report to him, and possessed marijuana.

When Deetjen and several other defendant state officers went

to the McInnis house, McInnis claimed that he was not on probation.

Deetjen called Randall, who repeated that he was. The officers

then arrested him for violating probation and searched the premises

for the stolen marijuana, though finding only some marijuana seeds

and drug paraphernalia.1

It was only after the arrest on January 5, 2007, while McInnis

was in custody at the York County jail, that his lawyer spoke with

Randall and explained a sentence reduction resulting in a

correspondingly earlier conclusion to the probation term. The

sentence change had never been entered in the probation

department’s records (for whatever reason), and once Randall

learned the new facts he concluded that McInnis was not on

probation and withdrew the “hold” (or arrest and custody)

authorization he had earlier given to the law enforcement

officers.2

1
The informant's report to Hatch later proved to be erroneous.
2
McInnis claims that there was a prior instance of records
error in the Probation Department, but this is not shown in the
factual record before the court and, in any event, is not claimed
to have been known to Randall or the state officers who made the
arrest and search. McInnis also claims that he was kept in jail
for two days after the error was known, but there is no dispute
about the magistrate judge’s notation that the complaint makes no

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 We review a grant of summary judgment de novo and draw all

reasonable inferences in favor of McInnis. Cox v. Hainey, 391 F.3d

25, 28-29 (1st Cir. 2004) The judgments in favor of the government

officers on the ground of qualified immunity rest on the rule that

an official is not subject to civil damages under § 1983 if the

action complained of did not violate a clearly established right to

which a reasonable officer would have understood that the plaintiff

was entitled. Pearson v. Callahan, 129 S. Ct. 808, 815 (2009).

The issue in this case has nothing to do with the law component of

that rule; the general standards of reasonable search and seizure

are not in contention, nor is the rule that violating a condition

of probation is cause for arrest, or the rule that a condition of

probation may dispense with the need for a warrant to arrest or

search a probationer.3 See Katz v. United States, 389 U.S. 347,

356-357 (1967); United States v. Cardona, 903 F.2d 60, 60, 64 (1st

Cir. 1990); Griffin v. Wisconsin, 483 U.S. 868, 873-875 (1987).

Thus, liability for McInnis’s arrest turns entirely on the

fact element of the qualified immunity standard, on whether the

arresting officer could reasonably have believed that McInnis was

violating probation. As to this, the probation officer’s

such claim.
3
McInnis suggests that Maine law requires a warrant to arrest
for violating probation, but that is only when the whereabouts of
the offender are unknown. 17-A M.R.S. § 1205(1). McInnis was found
right where he was understood to be.

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representation was surely sufficient in and of itself, though in

this case there was more. Randall confirmed the probation status

when Deetjen prudently called him after McInnis denied it, and

Deetjen had dealt with Randall for thirty years without any

indication of shoddiness that might have discounted the reliability

of Randall’s word. As we explain more fully below, there was no

genuine dispute as to these facts, which provided the officers with

probable cause to believe McInnis was subject to arrest for

violating the terms of a valid probation order, and they thus

obviously qualified under the standard recognizing immunity “so

long as the presence of probable cause is at least arguable.”

Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991).

Belief in sufficient grounds to search was likewise “at least

arguable.” Here, given good reason to believe that McInnis was on

probation, the standard to be met was one of reasonable suspicion

that contraband would be found where he lived. See United States

v. Knights, 534 U.S. 112, 121 (2001). Reasonable suspicion was

supplied by the informant, whose past reports had given no cause

for skepticism, and underscored by the known previous revocation of

McInnis's federal supervised release on account of possessing

marijuana, among other things.4 The informant’s reliability was

4
Because there was probable cause for the officers at the scene
to arrest, and reasonable suspicion to search, there is no basis
for liability on the part of the primary officers, supervisors, or
a claim against York County under Monell v. Department of Social
Services of New York, 436 U.S. 658 (1978).

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indicated by that track-record, which also answers McInnis’s

attempt to raise a genuine issue of material fact underlying his

argument that the officers should have taken steps to verify the

informant’s report before acting on it.

Two subsidiary matters are left. McInnis wished to contest

the defendants’ statements of material fact (in their summary

judgement pleadings), to the effect that Deetjen twice conversed

with Randall, who each time said that McInnis was on probation.

McInnis's response to each of those statements was to say this:

“Qualified. Mr. McInnis takes the position that conversation not

recorded by Mr. Randall did not occur. Mr. McInnis asserts that

his is a legitimate inference to be made in his favor on a motion

for summary judgment.” The magistrate held these responses

insufficient to raise a fact dispute because McInnis failed to

support the claimed qualification with a citation to the record, as

required by the District of Maine’s Local Rule 56(c). McInnis now

suggests that the citation requirement is inapt by force of Federal

Rule of Evidence 803(7), which he treats as entitling him to rely

on the very absence of a record as a basis for disputing a fact

claim. That rule exempts from the evidentiary hearsay bar evidence

that an alleged event is not recorded as a means of proving it

never occurred. McInnis assumes that without more he should be

able to rely on Randall’s telephone notes containing no mention of

the Deetjen conversations (Randall having died). The argument

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comes up short in a number of ways, the first being that McInnis

never brought it to the district court’s attention. But even on

its own terms it goes nowhere, since McInnis provides no grounds

for applying the Rule even if he were offering the phone notes in

evidence. Rule 803(7) conditions admissibility on a foundational

showing that records were kept in such a way that the occurrence

claimed “was of a kind of which a . . . record . . . was regularly

made and preserved.” McInnis attempts no such showing.

Finally, McInnis says it was error to enter judgment against

him on his state tort claims against Hatch, despite his failure to

satisfy the requirement of the Maine Tort Claims Act that a notice

of a claim against a government employee be given within 180 days

of accrual. Hatch, he says, was not acting within the scope of his

employment when he called Randall and Deetjen, from which it may be

shown that he was acting maliciously and outside the protection of

the statute. See 14 M.R.S.A. § 8107. But as McInnis recognizes,

an employee's action is within the scope of his duties when “(a) it

is of the kind he is employed to perform; (b) it occurs

substantially within the authorized time and space limits; [and]

(c) it is actuated, at least in part, by a purpose to serve the

master.” Spencer v. V.I.P., Inc., 910 A.2d 366, 367 (Me.

2006)(alteration in original)(quoting Restatement (Second) of

Agency (1958)). The record before us indicates without

contradiction that as a detective and sheriff’s deputy, Hatch was

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regularly in contact with informants, including the one in

question, and that he customarily shared information with other law

enforcement agencies. He relayed the informant’s report with his

supervisor’s knowledge, during his working hours, and there is no

question that sharing such information serves the enforcement of

the state’s criminal law.5 There was consequently no issue of fact

standing in the way of Hatch’s entitlement to judgement on the tort

claim due to McInnis’s failure to give the notice required by

statute.

Affirmed.

5
As mentioned, McInnis argues in his brief that Hatch should
have taken some steps to confirm the informant’s unsound report
before passing it along. But even the suggested negligence would
not have placed him outside the scope of this employment, and his
undisputed prior experience with the informant answers the
suggestion.

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