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Court rejects Baer's claims that arrest violated his Constitutional rights


December 02, 2015
A judge has ruled in favor of a Gilford police officer after suit was filed against him for an arrest stemming from a dispute at a school board meeting last year.

Judge Joseph DiClerico issued the judgment on Nov. 24 in favor of Lt. James Leach against a suit made by William Baer saying that by arresting him for disorderly conduct, Leach violated his Fourth Amendment rights.

The suit was based on events that occurred at the school board meeting on May 5, 2014. At that meeting, a group of parents protested the fact that freshman English students had been assigned Jodi Picoult book "Nineteen Minutes," an exploration of how a school shooting impacts a small town which contains an explicit description of a sexual encounter between two teenage characters. Baer attended the May 5 school board meeting to voice his concerns about the book, and refused to step aside when then board chair Sue Allen tried to enforce the two-minute time limit on public comments. The exchange between Baer and Allen escalated to the point where Allen asked that Leach escort Baer out of the room for what she deemed unruly and disruptive behavior.

Baer was arrested and later charged with disorderly conduct. The charges were later dismissed, with the court saying there was lack of evidence for a "reasonable trier of fact (to) find the defendant guilty beyond a reasonable doubt."

Baer subsequently filed suit against Leach for violating his Fourth Amendment rights by arresting him without probable cause. Leach moved for summary judgment on the grounds that there were clear facts that he had probably cause to arrest Baer. Additionally Leach moved that he is entitled to qualified immunity from the suit as a government official in the course of his duties. A summary judgment shows that there is no genuine dispute as to material fact and the person who applied for the ruling is "entitled to judgment as a matter of law."

Baer disputed the motion on both these counts, citing a lack of probable cause in the arrest. Probable cause is required for an officer to receive qualified immunity. Baer said Leach violated his Fourth Amendment rights; stating that any reasonable officer would know there was no grounds to arrest him. Baer argued his statements at the meeting were also protected under the First Amendment.

Baer's dispute sites the state's dismissal of the charges, precluding the summary judgment. In ruling the state could not determine beyond a reasonable doubt that Baer committed disorderly conduct and also questioned the constitutionality of his arrest. The summary judgment stated the issues in the criminal case are not the same as the ones in this case. Additionally the judgment said the issue of the constitutionality of Baer's arrest was deemed not essential to the discussion.

Leach's argument said probable cause was met under state law under conditions including a person breaching the peace, causing public inconvenience or alarm, or disrupting the business of any public or governmental facility. Baer argued that his statements were "short and limited" and did not cause significant disruption to the proceedings.

The ruling stated that the length and time of the disruption are factors to be weighed in each probable cause consideration. The judgment said there is no dispute that Leach observed that "Baer disregarded the rules governing public comment by first repeatedly posing questions to the board and then interrupting the meeting by speaking after he had already used his allotted time" and that Allen tried to maintain order multiple times after Baer interrupted the meeting, stating that Baer then spoke loudly over Allen, later stating "why don't you arrest me."

According to the judgment, it was arguable that Leach had probable cause to arrest Baer for disorderly conduct, no matter the duration of his remarks, and a reasonable officer could have determined that Baer could continue interfering with the meeting.

The judgment also stated that Baer did not bring forth a claim that the arrest violated his First Amendment rights and had therefore not properly raised the issue, making the First Amendment argument not persuasive.

Varney Smith
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