GILFORD — The police lieutenant being sued by a parent who he arrested for disorderly conduct at a School Board meeting in May of 2014 has asked the U.S. District Court, New Hampshire District for summary judgment, which if granted would end the lawsuit against him.
A suit was filed against Lt. James Leach in 2015 after the criminal charges against William Baer were dismissed in the 4th Circuit Court, Laconia Division. In that case, Judge Jim Carroll agreed with Baer that the three counts of disorderly conduct could not be sustained because Baer was expressing his right to free speech under the First Amendment and in doing so, the meeting was not disrupted and it continued without a recess.
According to his filing, "summary judgment is appropriate when pleadings, depositions, answers to interrogatories, and admissions of file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party (in this case Leach) has demonstrated he is entitled a judgment as a matter of law."
The question for the court to determine is whether or not Leach had probable cause to believe Baer violated any of the three charges of disorderly conduct for which he was charged. Should the court determine there was probable cause to arrest Baer, then he is entitled to summary judgment said his attorney Andrew Livernois.
According to court records and news accounts at the time, Baer and some other Gilford residents who had children in the school district objected to a reading assignment they felt contained a pornographic description of a rape. He and others came to the School Board meeting to express those complaints while others came to support the district.
During the course of the meeting, the state, in this case represented by Leach in his role as police officer, determined Baer was disrupting the meeting — first when he spoke beyond his two minute time allocation and secondly, when he interjected a statement while another parent was speaking. When Leach asked Baer to leave, Baer replied that Leach would have to arrest him. And so he did.
Livernois said that probable cause exists when the "facts and circumstances within the police officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense."
Baer's attorney Charles Douglas III said in his reply asking the court not to grant summary judgment that Leach arrested Baer without warning or probable cause for exercising his right to free speech at a public meeting. He said the "arrest clearly violates established law."
According to westlaw.com, probable cause generally refers to the requirement in criminal law that police have adequate reason to arrest someone, conduct a search, or seize property relating to an alleged crime. The probable cause requirement comes from the Fourth Amendment of the U.S. Constitution
Douglas also cites Carroll's ruling that Baer's actions were "impolite but not criminal" and "never created a breach of the peace." He wrote that Leach allegedly arrested Baer because Baer consented to it, not because he felt there was probable cause for it.
Douglas also said in his argument based on the Fourth Amendment that protects people against unlawful search and seizure that an arrest must be supported by probable cause or a warrant. He said absent a warrant, there must have been probable cause and it has been defined by the U.S. Supreme Court in 1949 and has been cited thousands of time since.
"It cannot be said with a straight face that the doctrine of probable cause is not clearly established law," Douglas wrote.
He also said that clearly established law in New Hampshire says that a person must cause "a disruption significant enough to halt or alter orderly proceeding, thereby justifying the state's restrictions of his or her free speech."
He said Baer didn't cause a disruption or a recess in the meeting and went willing to the hall with Leach who arrested him in the hallway.
Based on these standard, Douglas argues that Leach is not entitled to summary judgment and the case should continue.
The case was scheduled for trial in early October.