STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CRIMINAL ACTION DOCK.Er NO. CR-16-3882 CR-16-3884 STATE OF MAINE V.

MICHELLE GADSON ORDER ON MOTIONS TO DISMISS Defendant and STATE OF MAINE t=.!EC'D CLJMB CLE~KS OFG Mfi'/ 17 '17 F'M3'.02 V.

ISAIAH GADSON

Defendant

Before the court are defendants' motions to dismiss the complaints against them because of alleged police misconduct. Hearing was held on March 16, 2017. Briefs were filed on April !

3, 2017. The court has considered the evidence and arguments of counsel. For the following reasons, the motions are denied.

Brent Abbou has been employed by the Portland Police Department for more than five years. On July 4, 2016, he responded before 9:00 p.m. Lo a report of an assault on a security guard at Bayside Village, a large apartment complex in Portland. He had also been instructed to "criminal trespass" defendant Michelle Gadson, and had told her to leave the premises.

Officer Abbott was watching security video footage with two other security officers behind the counter in the lobby of Bayside Village. Defendant Isaiah Gadson, who lived at Bayside Village, entered the lobby. Mr. Gadson is nineteen years old, is 6'5", weighs 250 pounds, and works in the Old Port as a bouncer. He expected to meet his mother, Ms. Gadson, at Bayside Village after the fireworks that evening.

There were four people and the officers in the lobby at Bayside Village. (St.'s Ex. 14.) Mr. Gadson walked into the lobby quickly and stopped at the counter. His arms were raised, consistent with making an inquiry. (St.'s Ex. 14.) He asked who had criminal trespassed his mother.

Officer Abbott immediately walked around the counter and approached Mr. Gadson, who did not move and who had his arms pointed down in front of him. (St.'s Ex. 14.) Officer Abbott pushed Mr. Gadson with both hands, pointed to the door, and told Mr. Gadson to leave. (St.'s Ex. 14.) Officer Abbott continued to speak to Mr. Gadson, who did not move and kept his arms down in front of him. (St.'s Ex. 14.) Officer Abbott was saying, "go." (St.'s Ex. 14.) Mr. Gadson responded that he lived there and did not have to leave.

Officer Abbott then pulled his laser, pointed it directly in Mr. Gadson's face, and "dotted his forehead." (St.'s Ex. 14.) Mr. Gadson reacted and stepped back but remained standing where he was with his arms down in front of him. (St.'s Ex. 14.) Officer Abbott raised the taser again and continued to point to the door and to order Mr. Gadson to leave. (St.'s Ex. 14.) Officer Abbott then looked away from Mr. Gadson and spoke on his radio. (St.'s Ex . 14.) Mr. Gadson turned and walked toward the door. Officer Abbott shoved the taser into Mr. Gadson's back and kept the taser pointed at Mr. Gadson's back as Officer Abbott followed Mr. Gadson to the door. (St.'s Ex. 14.) Officer Abbott pushed Mr. Gadson out of the lobby toward Lhe outside and followed him with the taser still in Officer Abbott's hand. (St.'s Ex. 14.) Mr. Gadson did not use force. (St.'s Ex. 14.) At this point, Mr. Gadson had not committed a crime.

Outside, five people and another officer were present initially but those numbers increased. (St.'s Ex. 14.) Officer Abbott continued to speak in an aggressive manner to Mr. Gadson. (St.'s Ex. 14.) Mr. Gadson's brother stepped toward Mr. Gadson and Office Abbott, and the brother extended his arm between the two. (St.'s Ex. 14.) Mr. Gadson continued to stand with his arms down in front of him . (St.'s Ex. 14.) Officer Abbott moved closer to Mr. Gadson, who backed up, and his brother moved his body between Officer Abbott and Mr. Gadson . (St.'s Ex . 14.) Mr. Gadson backed up again as Officer Abbott approached. (St.'s Ex. 14.)

Officer Abbott then walked off the porch and shoved with both hands another spectator who was speaking but not acting aggressively. (St's Ex. 14.) Officer Abbott then engaged in a conversation with that person and approached the person closely. (St.'s Ex. 14.) The other officers stood by. (St. 's Ex. 14.) The potential for this situation to deteriorate was great.

Officer Bennis, a P011Iand Police Department officer of thirteen years, was dispatched to Bayside Village as additional back up. Officer Bennis was concerned about the crowd, which remained excited because of the previous incident, and tried to contain the crowd.

Officer Bennis called for additional police back up. Members of the crowd were yelling and there was significant commotion. (Defs.' Ex. ^[1].) Sergeant Noyes arrived at Bayside Village at 9:06 p.m. in response lo the call for additional help, and spoke to Ms. Gadson. She was standing in the road because she was not allowed on the property. Sergeant Noyes asked her to step out of the road because traffic was passing very close to her. (Defs.' Ex. ^[1].) She continued filming the scene. (Defs.' Ex. ^[1].) Officer Bennis asked her again to move and told her she was obstructing a public way. She did not move, ignored Officer Rennis's requests, and continued filming. (Def.'s Ex. I.)

Sergeant Noyes placed Ms . Gadson's arm behind her back to arrest her and tried to put handcuffs on her. Members of the crowd, including Mr. Gadson, moved quickly toward Sergeant Noyes and Ms. Gadson. Mr. Gadson yelled, "do not touch my mother."

The ensuing events are difficult to identify on the video, the beginning of which the court has viewed many times, partly because a car passed between the camera and the scene at a critkal time. (Defs.' Ex. ^[1], Stream 1.) At least three civilians were between Mr. Gadson, Sergeant Noyes and Ms. Gadson as the civilians approached Sergeant Noyes and Ms. Gadson. It does not appear that another officer was between Sergeant Noyes, Ms. Gadson, and the approaching crowd. (Defs.' Ex. ^[1].)

Three officers followed Mr. Gadson as he approached Ms. Gads<?"· Mr. Gadson was facing toward Ms. Gadson. He was taken down from behind to prevent him from reaching Sergeant Noyes and Ms. Gadson. Two other officers ran to the scene of the struggle. (Defs.' Ex. ^[1].)

Officer Matt Pavlis, who is 5'9" and weighs 180 pounds, arrived at 9:05 p.rn. in response to the call for additional backup. Based on the testimony, there is no dispute that Mr. Gadson and Officer Pavlis were primarily involved in the altercation. Mr. Gadson was beneath Officer Pavlis. Mr. Gadson's arms were flailing as he tried to punch Officer Pavlis. Officer Pavlis punched Mr. Gadson seven or eight times in his side.

During the altercation, Ms. Gadson attempted to walk toward her son. Portland Police Department Officer Graham Hults, Sergeant Noyes, and Lieutenant Hutcheson stepped in front of her at various times.

Officer Abbott grabbed his baton and pushed it multiple times into the back of Mr. Gadson's leg. Sergeant Noyes yelled "spray" one or two times and then used pepper spray on Mr. Gadson. Mr. Gadson stoppe~ resisting and was handcuffed.

The officers poured water on Mr. Gadson's eyes and contacted Med Cuc. (St.'s Exs. 10­ 12.) Paramedics arrived at the scene and evaluated Mr. Gadson. There was no visible injury to him except for the effect of the spray. Mr. Gadson reported to Med Cue that his back was injured. Officer Pavlis sustained scratches and abrasions to his hands, arms, face, and neck and a bite mark on his hand, which he believed was caused by Mr. Gadson. (St.'s Exs. 1-9.)

Mr. Gadson was arrested and charged with assault on an officer, refusing to submit to arrest, and carrying a concealed weapon. Officer Bennis conducted a search incident to arrest of Mr. Gadson and found a switchblade in his front pants pocket. Mr. Gadson was taken to the jail. He did not request treatment at the jail. He posted bail immediately.

Ms. Gadson was arrested by Lieutenant Hutcheson, a twenty-eight-year veteran of the Portland Police Department, with assistance from Sergeant Noyes and charged with obstructing a public way, obstructing government administration, and disorderly conduct. (St.'s Ex. 13.) She was placed against a vehicle and each officer took one of her arms and applied the handcuffs. (Def.'s Ex. ^[1].)

Lieutenant Hutcheson picked up Ms. Gadson's phone from the ground and gave it to Officer Abbott. Ms. Gadson and her phone, with which she videotaped what had occurred, were taken to the jail by Officer Abbott. She declined Officer Titcomb's request to allow the footage to be downloaded. The phone was taken from Ms. Gadson because she was not allowed to have a phone at the jail.

CONCLUSIONS

In situations where the conduct of law enforcement agents is outrageous, due process principles absolutely bar the government from invoking judicial processes to obtain a conviction. United_States v. Russell, 411 U.S. 423, 431-32 (1973) (undercover agent's supplying of an essential chemical for the manufacture of methamphetamine was not a due process violation). "This is conduct that shocks the conscience." Rochin v. California, 342 U.S. 165, 172 (1952) (illegal entry, struggle to obtain capsules defendant swallowed, and forced stomach pumping constituted a due process violation); see Olm ·tead v. United States, 277 U.S. 438,468 (1928) (courts do not have the discretion to exclude evidence unethically secured); United States v. McClelland, 72 F.3d 717,721 (9th Cir. 1995) ("For a due process dismissal, the Government's conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice."); Roberts v. Maine, 48 F.3d 1287, 1291 (1st Cir. 1995) ("The Due Process Clause of the Constitution prohibits deprivations of life, liberty, or property without 'fundamental fairness' through governmental conduct that offends the community's sense of justice, decency and fair play."); lfuguez v. United Stales, 4-06 F .2d 366, 381-82 (9th Cir. 1968) (forced drinking of an emetic and forced rectal exam "conducted violently, unhygienically, without medical propriety and with laughler and jokes" constituted a due process violation); Stale v. Stade, 683 A.2d 164, 166 (Me. 1996) (admission of blood alcohol test would be fundamentally unfair because the officer failed to read an implied consent form and provided false information to defendant.)

no evidence that the officers' actions with regard to Ms. Gadson were "so offensive as to shock the conscience." (Mot. Dism. ! 7 .)

STATE OF MAINE CRIMINAL DOCKET vs CUMBERLAND, ss. MICHELLE GADSON Docket No CUMCD-CR-2016-03882 47 ELM STREET APT 1 WATERVILLE ME 04901 DOCKET RECORD DOB: 02/04/1973 Attorney: LEONARD SHARON State's Attorney: STEPHANIE ANDERSON ANDRUCKI & KING POBOX7120 179 LISBON STREET LEWISTON ME 04243 RETAINED 08/12/2016 Charge(s) 1 DISORDERLY CONDUCT, LOUD UNREASONABLE NOISE 07/04/2016 PORTLAND Seq 11251 17-A 501-A(l)(A)(l) Class E NOYES I POR 2 OBSTRUCTING GOVERNMENT ADMINISTRATION 07/04/2016 PORTLAND Seq 10902 17-A 751(1) Class D Charged with COMPLAINT on Supplemental Filing. NOYES POR Docket Events:

07/06/2016 FILING DOCUMENT- CASH BAIL BOND FILED ON 07/05/2016 07/06/2016 Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULE OTHER COURT ON 08/25/2016 at 08:30 am. in Room No. 1 PORSC 07/06/2016 BAIL BOND - $200.00 CASH BAIL BOND FILED ON 07/05/2016

Bail Receipt Type: CR Bail Amt: $200 Receipt Type: CK Prvdr Name: TYLER ROSS Date Bailed: 07/05/2016 Rtm Name: TYLER ROSS 409 3RD PARTY DOB 7-23-94 07/11/2016 MOTION - MOTION TO AMEND BAIL FILED BY DEFENDANT ON 07/11/2016

STATE TAKES NO POSffiON 07/12/2016 MOTION - MOTION TO AMEND BAIL GRANTED ON 07/12/2016 ROLAND A COLE , JUSTICE COPY TO PARTIES/COUNSEL VACATETEH REQUEST OF "NOT TO BE WITHIN 200 FEET OF 132 MARGIANL WAY" . 08/12/2016 Charge(s): 1;l.

SUPPLEMENTAL FILING - COMPLAINT FILED ON 08/02/2016 08/12/2016 Party(s): MICHELLE GADSON ATTORNEY - RETAINED ENTERED ON 08/12/2016 Attorney: LEONARD SHARON 08/26/2016 Charge(s): l HEARING- ARRAIGNMENT WAIVED ON 08/25/2016 at 08:30 a.m. in Room No. 1 08/26/2016 Charge(s): l;l.

PLEA - NOT GUILTY ENTERED BY COUNSEL ON 08/25/2016 at 08:30 a.m. in Room No. 1 08/26/2016 Charge(s): 1;l.

CR-200 Pagel of 4 Printed on: 05/17/2017

MICHELLE GADSON

CUMCD-CR-2016-03882

DOCKET RECORD

HEARING - DISPOSITTONAL CONFERENCE SCHEDULED FOR 11/16/2016 at 01 :00 p.m. in Room No. 7 08/26/2016 Charge(s): 1,2 TRIAL - JURY TRIAL SCHEDULED FOR 01/09/2017 at 08 :30 a.m. in Room No. 11 NOTICE TO PARTIES/COUNSEL 11/01/2016 Charge(s): 1,2 HEARING - DISPOSITTONAL CONFERENCE NOTICE SENT ON 11/01/2016 11/08/2016 WRIT - HABEAS CORPUS TO PROSECUTE ISSUED ON 11/16/2016 at 01 :00 p .m . in Room No. 7

CERTIFIED COPY TO SHERIFF DEPT. SHOULD BE FOR 16-3884 ISAIAH GADSON 11/14/2016 WRIT - HABEAS CORPUS TO PROSECUTE ORDERED ON 11/08/2016 PAUL A FRITZSCHE, JUSTICE 11/16/2016 Charge(s): 1,2 HEARING - DISPOSITTONAL CONFERENCE CONTINUED ON 11/16/2016 LANCE WALKER , JUDGE Attorney: LEONARD SHARON FfR 7 11/16/2016 HEARING - DISPOSITTONAL CONFERENCE SCHEDULED FOR 12/07/2016 at 08:30 a.m. in Room No. 7 11/21/2016 HEARING - DISPOSIDONAL CONFERENCE NOTICE SENT ON 11/21/2016 12/07/2016 HEARING- DTSPOSTTIONAL CONFF.RRNCR HRT.D ON 12/07/2016 LANCE WALKER , JUSTICE Attorney: LEONARD SHARON DA: JULIA SHERIDAN CONF HELD, CASE UNRESOLVED. ON FOR JURY SELECTION 3-13 12/07/2016 Charge(s): 1,2 TRIAL - JURY TRIAL CONTINUED ON 12/07/2016 12/07/2016 Charge(s): 1,2 TRIAL - JURY TRIAL SCHEDULED FOR 03/13/2017 at 08:30 a.m. in Room No. 11 NOTICE TO PARTIES/COUNSEL 12/07/2016 Charge(s): 1,2 TRIAL - JURY TRIAL NOTICE SENT ON 12/07/2016

GIVEN IN HAND

01/25/2017 Charge(s): 1,2 MOTION - MOTION TO DISMISS FILED BY DEFENDANT ON 01/25/2017

Attorney: LEONARD SHARON 01/25/2017 Charge(s): 1,2 HEARING - MOTION TO DISMISS SCHEDULED FOR 02/28/2017 at 01:00 p.m. in Room No. 1 NOTICE TO PARTIES/COUNSEL 01/25/2017 Charge(s): 1,2 HEARING - MOTION TO DISMISS NOTICE SENT ON 01/25/2017 02/27/2017 Charge(s): 1,2 CR-200 Page 2 of4 Printed on: 05/17/2017

MICHELLE GADSON

CUMCD-CR-2016-03882

DOCKET RECORD

MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 02/24/2017 Attorney: LEONARD SHARON MOTION TO CONTINUE HEARING ON 2-28. STATE OBJECTS 02/27/2017 Charge(s): 1,2 MOTION - MOTION TO CONTINUE DENIED ON 02/27/2017 PAUL A FRITZSCHE, JUSTICE COPY TO PARTIES/COUNSEL THE MATTER IN A RELATED CASE WAS ALSO DENIED 02/27/2017 Charge(s): 1,2 MOTION - MOTION TO CONTINUE GRANTED ON 02/27/2017 PAUL A FRITZSCHE, JUSTICE COPY TO PARTIES/COUNSEL FURTHER ORDER 02/27/2017 Charge(s): 1,2 HEARING - MOTION TO DISMISS CONTINUED ON 02/27/2017 PAUL A FRITZSCHE , JUSTICE 02/27/2017 Charge(s): 1,2 TRIAL - JURY TRIAL NOT HELD ON 02/27/2017 02/27/2017 HEARING - MOTION TO DISMISS SCHEDULED FOR 03/16/2017 at 01 :00 p.m. in Room No. 1

NOTICE TO PARTIES/COUNSEL 02/27/2017 HEARING - MOTION TO DISMISS NOTICE SENT ON 02/27/2017 03/17/2017 HEARING- MOTION TO DISMISS HELD ON 03/16/2017 at02:00 p.m. in Room No. 11 NANCY MILLS , JUSTICE Attorney: LEONARD SHARON DA: DEBORAH CHMIELEWSKI Defendant Present in Court FTR 11 DEFENDANT'S TESTIMONY BEGINS. DEFENSE RESTS. STATE'S TESTIMONY BEGINS. STATE OFFERS EX 1-14, ADMITTED WITHOUT OBJECTION. STATE RESTS. CASE CONTINUED TO 3/24/17 @ 8:30 FOR DEFENDANT TO SUBPOENA ADDmONAL VIDEO. 03/17/2017 Charge(s): 1,2 HEARING - MOTION TO DISMISS SCHEDULED FOR 03/24/2017 at 08:30 a.m.

NOTICE TO PARTIES/COUNSEL 03/17/2017 Charge(s): 1,2 HEARING - MOTION TO DISMISS NOTICE SENT ON 03/17/2017 JIM PAUL TURCOTTE, ASSISTANT CLERK 03/24/2017 Charge(s): 1,2 HEARING - MOTION TO DISMISS HELD ON 03/24/2017 PAUL A FRITZSCHE, JUSTICE Attorney: LEONARD SHARON DA: JULIA SHERIDAN ALSO ADA D CHMIELEWSKI FTR 9 BRIEFS TOBE SUBMITTED BY 4-3-17 03/24/2017 CASE STATUS - CASE FILE LOCATION ON 03/24/2017

CASE FILE IS ON DEB COOK'S DESK WAmNG FOR BRIEFS FROM ATTORNEYS 04/03/2017 OTHER FILING- OTHER DOCUMENT FILED ON 04/03/2017

DA: JULIA SHERIDAN

CR-200 Page 3 of 4 Printed on: 05/17/2017

MICHELLE GADSON

CUMCD-CR-2016-03882

DOCKET RECORD

STATE'S POST-HEARING MEMORANDUM

04/04/2017 OTHER FILING - MEMORANDUM OF LAW FILED ON 04/03/2017

Attorney: LEONARD SHARON 04/24/2017 CASE STATUS - CASE FILE RETURNED ON 04/04/2017 04/24/2017 CASE STATUS - CASE FILE LOCATION ON04/24/2017

IN JUSTICE MIILS' CHAMBERS

05/17/2017 CASE STATUS - CASE FILE RETURNED ON 05/17/2017 nM PAUL TURCOTTE ,ASSISTANT CLERK 05/17/2017 Charge(s): 1,2 MOTION - MOTION TO DISMISS DENIED ON 05/17/2017 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL ATRUECOPY ATTEST: - - - - - -- - - - ­ Clerk