MAINE SUPREME JUDICIAL COURT                                                        Reporter of Decisions
Decision: 2014 ME 60
Docket:   Ken-13-71
Argued:   November 20, 2013
Reargued: April 7, 2014
Decided:  April 22, 2014

Panel:        ALEXANDER, LEVY, SILVER, MEAD, and CLIFFORD, JJ.*



                                      LINDA J. CLIFFORD

                                                    v.

                      MAINEGENERAL MEDICAL CENTER et al.

ALEXANDER, J.

         [¶1] This case arises from three emails that Linda J. Clifford sent to the

Governor’s office in late September 2007. Those emails triggered a series of

events that ultimately led to Clifford being detained overnight against her will in

the psychiatric unit at MaineGeneral Medical Center (MaineGeneral) in Augusta.

         [¶2] Scott Kemmerer, an emergency room physician, appeals from an order

of the Superior Court (Kennebec County, Marden, J.) partially denying

consolidated motions to dismiss and for summary judgment 1 on Clifford’s

complaint. Clifford alleges that Kemmerer and MaineGeneral deprived her of
   *
      Chief Justice Saufley and Justice Gorman sat at the initial oral argument and participated in the
Court’s initial conference regarding this opinion immediately following that oral argument but did not
participate further in the development of this opinion.
   1
     Because the Superior Court, as relevant to this appeal, appropriately treated the consolidated motions
in effect as a motion for summary judgment, we evaluate the issues based on the parties’ statements of
material fact rather than on the pleadings. See, e.g., Hardenbergh v. Patrons Oxford Ins. Co., 2013 ME
68, ¶ 12 & n.2, 70 A.3d 1237.
2

liberty without due process and in violation of statutory rights, and subjected her to

an unreasonable search, in violation of the Maine Civil Rights Act (MCRA),

5 M.R.S. § 4682(1-A) (2013).2

           [¶3] Kemmerer contends that the court erred in denying his motion for

summary judgment on the MCRA claims, arguing that he is entitled to absolute

immunity against those MCRA claims by virtue of the immunity provided pursuant

to the Maine Tort Claims Act (MTCA), 14 M.R.S. § 8111(1)(C) (2013), to

individuals performing a discretionary function on behalf of the State.

Alternatively, Kemmerer argues that he is entitled to common law qualified

immunity against Clifford’s MCRA claims. Kemmerer also asks us to conclude

that he is entitled to judgment on Clifford’s MCRA claims as a matter of law

because he did not engage in or threaten “physical force or violence” and therefore

cannot be liable under the MCRA.




    2
        Title 5 M.R.S. § 4682(1-A) (2013) states:

               Whenever any person, whether or not acting under color of law, intentionally
           interferes or attempts to intentionally interfere by physical force or violence against a
           person, damage or destruction of property or trespass on property or by the threat of
           physical force or violence against a person, damage or destruction of property or
           trespass on property with the exercise or enjoyment by any other person of rights
           secured by the United States Constitution or the laws of the United States or of rights
           secured by the Constitution of Maine or laws of the State or violates section 4684-B, the
           person whose exercise or enjoyment of these rights has been interfered with, or
           attempted to be interfered with, may institute and prosecute in that person’s own name
           and on that person’s own behalf a civil action for legal or equitable relief.
                                                                                                      3

       [¶4] Clifford contends that Kemmerer is not entitled to absolute immunity

against her MCRA claims and that the remainder of his appeal should be dismissed

because it is interlocutory and because factual disputes preclude resolution of the

remaining issues.

       [¶5]     Additionally, the Superior Court reported to us, pursuant to M.R.

App. P. 24(c), two questions of law: (1) “Whether the conduct found by [the] court

to have been committed by [Kemmerer] is actionable under the [Maine] Human

Rights Act” (MHRA), see 5 M.R.S. §§ 4551-4634 (2007),3 and (2) “Whether

[MaineGeneral] may be held liable under the [MCRA] on the theory of respondeat

superior for the wrongful acts of its employees.”

       [¶6] We reach the merits of Kemmerer’s appeal on the immunity issues and

affirm the trial court’s order denying summary judgment, but we do not reach

Kemmerer’s remaining arguments in this interlocutory appeal. We decline to

reach the issues raised by the trial court’s report.

                       I. THE EMERGENCY ADMISSION LAWS

       [¶7] The terms of the emergency admission laws, 4 also called the “blue

paper” process or, albeit imprecisely, “involuntary commitment” laws, in effect in


  3
     Portions of the MHRA have been amended since the operative events in this case occurred, and we
therefore cite the 2007 volume of the statutes.
  4
    Although the procedures set forth for involuntarily hospitalizing a person on an emergency basis for
mental health purposes have become known as “involuntary commitment,” and we use that phrase here at
4

2007, when the events in this case occurred, are important to an understanding of

the issues before us. A law enforcement officer’s authority to take an individual

into protective custody to be transported for a mental health examination was

established by 34-B M.R.S. § 3862 (2007),5 which stated in pertinent part:

        1. Law enforcement officer’s power. If a law enforcement officer
        has reasonable grounds to believe, based upon probable cause, that a
        person may be mentally ill and that due to that condition the person
        presents a threat of imminent and substantial physical harm to that
        person or to other persons, . . . the law enforcement officer:

            A. May take the person into protective custody; and

            B. If the law enforcement officer does take the person into
            protective custody, shall deliver the person immediately for
            examination as provided in section 3863 . . . . The examination
            may be performed by a licensed physician, a licensed clinical
            psychologist, a physician’s assistant, a nurse practitioner or a
            certified psychiatric clinical nurse specialist.

        When, in formulating probable cause, the law enforcement officer
        relies upon information provided by a 3rd-party informant, the officer
        shall confirm that the informant has reason to believe, based upon the
        informant’s recent personal observations of or conversations with a
        person, that the person may be mentally ill and that due to that
        condition the person presents a threat of imminent and substantial
        physical harm to that person or to other persons.




times, admission to a psychiatric hospital pursuant to the emergency procedures at issue here is distinct
from commitment to a psychiatric hospital, as clarified by the Legislature by P.L. 2011, ch. 541, § 2
(effective Aug. 30, 2012) (codified at 34-B M.R.S. § 3863(9) (2013)).
    5
      After the September 2007 events at issue in this appeal, 34-B M.R.S. § 3862 was amended by
P.L. 2009, ch. 651, §§ 11, 12 (emergency legislation effective April 14, 2010).
                                                                                                      5

        2. Certificate not executed. If a certificate relating to the person’s
        likelihood of serious harm is not executed by the examiner under
        section 3863, . . . the officer shall:

            A. Release the person from protective custody and, with the
            person’s permission, return the person forthwith to the person’s
            place of residence, if within the territorial jurisdiction of the
            officer;

            B. Release the person from protective custody and, with the
            person’s permission, return the person forthwith to the place where
            the person was taken into protective custody; or

            C. If the person is also under arrest for a violation of law, retain the
            person in custody until the person is released in accordance with
            the law.

        3. Certificate executed. If the certificate is executed by the examiner
        under section 3863, the officer shall undertake forthwith to secure the
        endorsement of a judicial officer under section 3863 and may detain
        the person for a reasonable period of time, not to exceed 18 hours,
        pending that endorsement.

        [¶8] The emergency admission law applicable in 2007 regarding the mental

examinations to be conducted after a person was taken into custody, 34-B M.R.S.

§ 3863 (2007),6 stated, in pertinent part:

        A person may be admitted to a psychiatric hospital on an emergency
        basis according to the following procedures.

        1. Application. Any health officer, law enforcement officer or other
        person may make a written application to admit a person to a
        psychiatric hospital, subject to the prohibitions and penalties of
        section 3805, stating:
  6
      Title 34-B M.R.S. § 3863 was amended by P.L. 2009, ch. 276, § 1 (effective Sept. 12, 2009);
P.L. 2009, ch. 451, § 10 (effective Sept. 12, 2009); P.L. 2009, ch. 651, §§ 13-19 (emergency legislation
effective April 14, 2010); and P.L. 2011, ch. 541, § 2 (effective Aug. 30, 2012).
6


       A. The person’s belief that the person is mentally ill and, because
       of the person’s illness, poses a likelihood of serious harm; and

       B. The grounds for this belief.

    2. Certifying examination. The written application must be
    accompanied by a dated certificate, signed by a licensed physician,
    physician’s assistant, certified psychiatric clinical nurse specialist,
    nurse practitioner or [psychologist, indicating that]

       A. The physician, physician’s assistant, certified psychiatric
       clinical nurse specialist, nurse practitioner or psychologist has
       examined the person on the date of the certificate; and

       B. The physician, physician’s assistant, certified psychiatric
       clinical nurse specialist, nurse practitioner or psychologist is of the
       opinion that the person is mentally ill and, because of that illness,
       poses a likelihood of serious harm. The written certificate must
       include a description of the grounds for that opinion.

    2-A. Custody Agreement. A . . . law enforcement agency may meet
       with representatives of those public and private health practitioners
       and health care facilities that are willing and qualified to perform
       the certifying examination required by this section in order to
       attempt to work out a procedure for the custody of the person who
       is to be examined while that person is waiting for that examination.
       Any agreement must be written and signed by and filed with all
       participating parties. In the event of failure to work out an
       agreement that is satisfactory to all participating parties, the
       procedures of section 3862 and [section 3863] continue to apply.

       As part of an agreement the law enforcement officer requesting
       certification may transfer protective custody of the person for
       whom the certification is requested to . . . a health officer if that
       officer agrees . . . .

    3. Judicial review. The application and accompanying certificate
       must be reviewed by a [specified judicial officer] . . . .
                                                                                 7


         A. If the judge or justice finds the application and accompanying
         certificate to be regular and in accordance with the law, the judge
         or justice shall endorse them and promptly send them to the
         admitting psychiatric hospital. . . . .

         B. A person may not be held against the person’s will in a hospital
         under this section, except that a person for whom an examiner has
         executed the certificate under subsection 2 may be detained in a
         hospital for a reasonable period of time, not to exceed 24 hours,
         pending endorsement by a judge or justice, if:
            ....

            (2) For a person sought to be involuntarily admitted under this
            section, the person or persons seeking the involuntary
            admission undertake to secure the endorsement immediately
            upon execution of the certificate by the examiner.
         ....

      [¶9] Thus, pursuant to then-existing law, a law enforcement officer could

take an individual into protective custody if there was probable cause to believe

that the person was then mentally ill and, as a result, posed a threat of imminent

and substantial harm to herself or others, but if the officer relied on information

from a third party to establish probable cause, the officer was required to confirm

that the third party’s assessment was based on “recent personal observations or

conversations with” the person. The officer was then required to immediately

deliver the person for a psychological examination pursuant to section 3863.

      [¶10] The person could be involuntarily admitted to a psychiatric hospital

on an emergency basis only upon application, which could be made by any person,
8

and after an examination and issuance of a certificate that the person, because of

his or her mental illness, posed a likelihood of serious harm. The only persons

authorized by law to issue such a certificate, after examination of the individual,

were a physician, physician’s assistant, certified psychiatric clinical nurse

specialist, nurse practitioner, or psychologist. Unless a certificate was executed, a

hospital had no authority to detain an individual. If no certificate was executed,

the person in law enforcement custody was to be released from protective custody

and returned home or to another place designated in section 3862(2).

      [¶11]    If a certificate was executed, the person could be held in the

protective custody of law enforcement for no more than eighteen hours or, if

protective custody was transferred to a hospital, held involuntarily in a hospital for

no more than twenty-four hours, pending judicial endorsement of the application

and certificate. The statute provided no authority for administrators of a hospital

or a social service agency to overrule the opinion of the professional examiner and

order continued detention of an individual despite the professional examiner’s

opinion, following an appropriate examination, that emergency hospitalization was

unnecessary.

      [¶12] The third relevant law, 34-B M.R.S. § 3805 (2013), states that a

person who willfully causes an unwarranted hospitalization of any person or
                                                                                                       9

willfully causes the denial of any rights accorded to any person pursuant to the

emergency admission and hospitalization laws is guilty of a Class C felony.7

                                       II. CASE HISTORY

        [¶13]     Unless otherwise noted, the following reflects the facts in the

summary judgment record viewed in the light most favorable to Clifford as the

nonmoving party and, to the extent that facts are disputed, reflects her version of

the facts. See Rodriguez v. Town of Moose River, 2007 ME 68, ¶ 16, 922 A.2d

484; Pinkham v. Rite Aid of Maine, Inc., 2006 ME 9, ¶ 6, 889 A.2d 1009.

        [¶14] Linda Clifford has a confirmed diagnosis of complex post-traumatic

stress disorder (PTSD) resulting from abuse she experienced as a child. Her PTSD

constitutes a “disability” as defined by the MHRA, 5 M.R.S. § 4553-A(1)(A)

(2013). On September 25, 2007, Clifford, frustrated with then-proposed budget

cuts to mental health services, sent the Governor a series of emails that were

interpreted as threatening. Shortly thereafter, two Maine State Police troopers

entered Clifford’s home, searched her home and her person for guns and

contraband, took her into custody, and delivered her to MaineGeneral for a

psychiatric evaluation.




   7
     The term “willfully” is not defined in the involuntary commitment statutes, but pursuant to the
criminal code, that state of mind is satisfied if the person acts intentionally or knowingly. 17-A M.R.S.
§§ 34(1), 35 (2013).
10

      [¶15] Amy Gordon, an employee of The Crisis and Counseling Center

(C & C), conducted an initial interview of Clifford when she arrived at

MaineGeneral’s emergency department. Gordon was not a person qualified to

issue a certificate to support an emergency admission pursuant to 34-B M.R.S.

§ 3863.   C & C served as a “consultant” to emergency medical staff at

MaineGeneral, interviewing patients and communicating with treating mental

health providers. After interviewing patients, C & C personnel would recommend

to emergency department staff the appropriateness of psychiatric hospitalization

for patients who had presented in psychiatric crisis. The decision whether to

commit or discharge a patient was described, perhaps as a matter of hospital policy

but not in the law, as a collaborative action between the emergency room physician

and C & C, with the physician giving the recommendation of C & C considerable

weight. However, the emergency department physician had “the last word” on

whether a person met the criteria for involuntary emergency admission, as required

by 34-B M.R.S. § 3863(2).

      [¶16] In her written report of her interview with Clifford, Gordon noted that

Clifford had been the victim of abuse as a child, suffered from serious mental

health issues, had previously been hospitalized at the Riverview Psychiatric

Hospital, and was a current client of the Sweetser Agency, a provider of mental

health services.   The MaineGeneral triage nurse also noted in computerized
                                                                              11

hospital records that Clifford suffered from psychological problems including

PTSD.

      [¶17]     Dr. Harry Grimmnitz, an emergency room physician at

MaineGeneral, then conducted the statutorily required examination of Clifford. He

also spoke with the troopers who brought Clifford to the hospital. Grimmnitz

learned that the troopers had concluded that Clifford did not pose a threat to

anyone and did not intend to press charges against Clifford.

      [¶18] After completing his examination, Grimmnitz concluded that Clifford

did not pose any risk of harm to herself or others and that she did not meet the

criteria for involuntary commitment. Gordon, the C & C representative, agreed

with Grimmnitz’s independent assessment that Clifford did not require

hospitalization or crisis stabilization and should be discharged. Accordingly, as

required by 34-B M.R.S. § 3862(2), Grimmnitz discharged Clifford in Gordon’s

presence at 6:15 p.m. Clifford left the hospital and went home.

      [¶19] Subsequently, Gordon’s superiors at C & C, who had not examined

Clifford, reviewed Clifford’s emails to the Governor and, based on the emails

alone, determined that Clifford should undergo another evaluation to determine

whether she posed a threat of harm. Gordon’s supervisor directed Gordon to call

the State Police and ask that Clifford be taken into custody and returned to the

hospital for a second psychiatric evaluation, which Gordon reluctantly did.
12

Contrary to evidence indicating that the supervisor directed Gordon to ask law

enforcement to return Clifford to the hospital for further evaluation, the supervisor

asserted that she believed that the State Police would independently determine

whether conditions existed to justify placing Clifford in protective custody and

returning her to the hospital.

      [¶20]    When a trooper arrived at Clifford’s home on the evening of

September 25, the trooper made no attempt to assess whether Clifford was

mentally ill or posed a threat of harm, believing that someone else had already

determined her need for psychiatric evaluation. To effectuate C & C’s request that

Clifford be returned to the hospital, the trooper tried to persuade Clifford to come

with him by falsely informing her that her discharge papers had not been signed.

Initially, Clifford refused to comply, but she gave in when the trooper told her that

he could take her to the hospital “the easy way or the hard way.” The trooper

dropped Clifford off at MaineGeneral at approximately 8:30 p.m.             Clifford

remained in the protective custody of law enforcement, pending examination,

because no custody agreement with the hospital was effected.

      [¶21] When Clifford arrived at the hospital for the second time, Gordon

approached her in the lobby, apologized to her, and told her that a mistake had

been made. Clifford was told by emergency room staff that she would not be

permitted to leave the hospital, although no one told her why she had been returned
                                                                                   13

to the hospital or why she could not go home. Clifford waited in the hospital lobby

for well over an hour.

      [¶22] While Clifford was waiting, Grimmnitz—who was then off duty and

was “on his way out the door” when Clifford was returned to MaineGeneral—

advised Dr. Scott Kemmerer, the director of emergency medicine at MaineGeneral,

that (i) he had conducted an involuntary commitment evaluation of Clifford earlier

that day; (ii) in his professional opinion, Clifford did not pose a risk of harm to

herself or others and that his opinion had not changed; (iii) Gordon, who had

interviewed Clifford, agreed with him; and (iv) a C & C supervisor had made the

decision to have Clifford returned to the hospital for further psychiatric evaluation.

Gordon informed Kemmerer about the emails that Clifford had sent to the

Governor, and Kemmerer knew that the decision to return Clifford to the hospital

was made by persons at C & C who had not interviewed Clifford, and was based

solely on Clifford’s emails.

      [¶23] Kemmerer admitted that he had “no idea what [C&C] knew and why

they decided” that Clifford had to be returned to the hospital but that one has to

“take that seriously” “when there is alleged threats against the governor.” Thus,

viewing the record in a light most favorable to Clifford, Kemmerer was aware that

no new information regarding Clifford’s mental health had developed since she

had been examined by Grimmnitz, who had determined that she did not meet the
14

criteria for issuing a certificate authorizing emergency commitment and had

discharged her to return home as required by 34-B M.R.S. § 3862(2).

      [¶24] Kemmerer also was aware from his conversation with Grimmnitz that

Clifford had a history of psychiatric disorder, but he did not know that Clifford

suffered from PTSD, what caused it, or what might trigger its symptoms.

However, he did have access to the record prepared by the triage nurse who had

interviewed Clifford when she first arrived at the hospital, which stated that

Clifford suffered from PTSD. Kemmerer also was aware that C & C, despite

having no new information about Clifford’s condition, wanted to initiate a second

emergency commitment process pursuant to 34-B M.R.S. § 3863, and that, if that

occurred, Clifford would likely not be evaluated by a psychiatrist until the

following day.

      [¶25] On the record before us, it is unclear why Clifford would have had to

wait for an evaluation by a psychiatrist. Kemmerer asserts that it probably would

have required “that level of authority” to discharge Clifford.     Kemmerer also

claims that, as a factual matter, if he had examined Clifford and determined that a

certificate should not be executed, and C & C disagreed, the final decision would

be referred to a psychiatrist as a “tie breaker.” However, the emergency admission

statute provided no legal basis for any of these factual assertions.      The law

authorized Kemmerer, as a physician, to perform the evaluation, and it provided no
                                                                                                       15

authority for C & C to issue a second opinion that would then require reference to

a psychiatrist to make the final commitment decision. See 34-B M.R.S. § 3863.

        [¶26] Clifford was seen at approximately 10:00 p.m. by a triage nurse, and

at 10:15 p.m. by Kemmerer in an examining room in the emergency department.

Kemmerer did not perceive Clifford to be psychiatrically stable when he first

examined her, but he was not prepared to certify that Clifford was mentally ill and

posed a threat of harm sufficient to support signing emergency admission papers.

Nonetheless, he told Clifford, without explaining why, that she was not going to be

allowed to leave the hospital.

        [¶27] Clifford contends that, at some point, she was told by a hospital or

C & C worker, in Kemmerer’s presence, that her only “choice” was to consent

“voluntarily” to stay in the hospital with the prospect of release in twenty-four

hours or to be “blue-papered” and remain at MaineGeneral involuntarily for

seventy-two hours while the emergency admission process took place. 8 The

worker advised Clifford to take “the 24.”



   8
      Although in a portion not specifically cited by the parties, the summary judgment record indicates
that Clifford testified that the worker “had the 24 to 72-hour paper. She said, if I was you, I’d take the
latter of the two and 24. You’ve been blue-papered for the 72 hours—I think it was 72 hours. And I said,
that’s the choice I have? And she goes, yes.” We have indicated that we will consider evidence “not
identified in statements of material fact when, having become aware of such evidence, it would be an
injustice to ignore it.” HSBC Mortg. Servs., Inc. v. Murphy, 2011 ME 59, ¶ 16 n.9, 19 A.3d 815.

   Even if the worker did not explicitly tell Clifford that she would be detained for seventy-two hours if
Clifford failed to consent to admission, the worker and Kemmerer did not correct Clifford’s
16

         [¶28] Kemmerer apparently agreed with the worker’s advice. He states that

he told Clifford that C & C wanted her blue-papered but that she could avoid this

by admitting herself voluntarily overnight. No one informed Clifford that she had

a right to refuse to sign the form consenting to hospital admission because the blue

paper emergency hospitalization process had not been initiated.

         [¶29]    In many circumstances, it may be good practice for examining

professionals, engaging in a statutorily authorized emergency commitment process,

to suggest to individuals who are being examined that they have an option of

voluntary hospitalization or other, less stigmatizing alternatives to completion of

the emergency commitment process. Here, however, the facts, construed most

favorably to Clifford, particularly the alleged reference to potentially lengthy

detention before initiation and completion of the commitment process, suggest that

the references to voluntary commitment were part of a broader effort, in violation

of the emergency commitment law, to pressure Clifford to relinquish her

fundamental rights. 9



understanding that her choice was to voluntarily admit herself for twenty-four hours or be detained for
seventy-two hours while the blue paper process proceeded.
     9
      By statute, the blue paper process for a person detained by a law enforcement officer must be
completed within eighteen hours or, for a person detained in a hospital on an emergency basis, within
twenty-four hours, after the certificate is executed, 34-B M.R.S. §§ 3862(3), 3863(3)(B) (2007), though it
is certainly the intent of the law that the evaluation that would determine whether a certificate is executed
would occur promptly, which was not occurring when Clifford was forced to return to the hospital for the
second time.
                                                                                                      17

        [¶30] After Kemmerer left the examining room, Clifford noticed a hospital

security guard sitting in the hallway outside the door to her room. Upset that she

was apparently not going home, even though she had previously been evaluated

and discharged, Clifford closed the door and began to cry. Almost immediately, a

staff person opened the door and angrily informed her that the door of the

examining room must remain open. Clifford then began to yell and complain that

she wanted to go home. Kemmerer returned to the examining room, and angrily

said, “You are not listening to me. You are not leaving.” Clifford became agitated

and verbally abusive to Kemmerer when, without explaining why, he told her that

she could not leave the hospital.

        [¶31] Clifford reluctantly signed the consent form, which stated only that

she consented to medical treatment at MaineGeneral and had the right to object to

treatment.     Construed most favorably to Clifford, the record would support a

finding that she signed the consent form only after Kemmerer told her that she

would not be leaving that hospital and after she was informed, falsely, that she

could be held without her consent for up to seventy-two hours while the second

blue paper process, which was not yet initiated, could be completed.10 When


   10
       A written policy of the hospital, describing the procedures and criteria for “detaining patients
pending blue papers,” consistent with the emergency admission statute, stated that a patient could not be
detained pending judicial endorsement unless parts one (requiring the initial application) and two
(requiring the examiner’s certification) of the blue paper process had been completed and judicial
endorsement was “actively being sought,” in which event the person could be detained for no more than
18

Clifford signed the consent form, no application had been filed seeking her

admission to the hospital and there existed no doctor’s certificate that she was

mentally ill or posed a threat of harm.

       [¶32] After Clifford signed the form, and although Clifford explained that

she had already been searched by the police, Kemmerer directed her to remove her

clothes so that she could be searched for contraband and change into a hospital

gown. Clifford became extremely agitated and refused to take off her clothes.

Kemmerer then called two male security guards into the examining room “to assist

in enforcing his request,” and Clifford was again instructed to remove her clothes.

Clifford again refused, but when Kemmerer and the guards did not relent, she

angrily pulled down her pants and underwear to demonstrate that she was not

carrying any contraband.

       [¶33]    MaineGeneral’s written policy provided that hospital staff will

generally search a patient’s person and belongings only upon reasonable cause to

believe that the person possessed prohibited items with “every effort . . . to assure

that the search is conducted with respect and sensitivity to the patient’s privacy and

dignity.” The policy further stated that, with respect to the hospital’s behavioral

units, hospital staff could perform “upon admission” “a complete search” of the



eighteen hours when the evaluation was completed before 11:00 p.m. Kemmerer was aware of these
policies.
                                                                                                         19

patient’s belongings, but could only perform a “body search” pursuant to a doctor’s

order and when there was “documented reasonable cause to believe the patient has

prohibited items on his or her person.” A body search was to be conducted by two

staff members, at least one of whom was the same gender as the patient, with

“respect for the patient’s dignity and privacy.”11

        [¶34]     After the search, Clifford was taken to the psychiatric unit still

wearing her street clothes. In the psychiatric unit, Clifford became increasingly

angry and agitated. In response to her expressions of anger and frustration, she

was taken by hospital staff to a locked, windowless room with a padded wall. In a

moment of frustration, Clifford punched the padded wall and injured her hand and

wrist. The following morning, Clifford was evaluated by a hospital psychiatrist

who, like Grimmnitz the previous day, concluded that she did not pose a threat of

harm to herself or others and recommended that she be discharged from the

hospital. Thus, a day after she had been discharged the first time, Clifford was

again discharged and allowed to go home.




   11
      Kemmerer did not properly deny Clifford’s statement of material fact asserting that the hospital’s
body search policy was violated when Clifford was searched without documented reasonable cause and
without the presence of at least one female staff member. We note that the hospital policy’s definition of
“body search” does not include a “strip search,” although the record does not include another hospital
policy that apparently defines “strip search.” We can only assume that a more intrusive body search than
that described in the policy that is in the record would require procedural safeguards at least equal to, if
not greater than, those described in the hospital policy before us.
20

                       III. CASE HISTORY SUMMARIZED

      [¶35] In summary, Clifford had been taken into custody and delivered to

MaineGeneral for evaluation on September 25, 2007, where she was promptly

evaluated and discharged by an emergency room physician, with the agreement of

the evaluating C & C worker, after the physician determined that Clifford posed no

threat of harm to herself or others. Despite this, C & C supervisors, who had never

seen Clifford, directed that she be returned to the hospital for further evaluation,

even though there was no new information to support that directive. Kemmerer

was aware of these facts.

      [¶36] Kemmerer did not perform a full evaluation of Clifford when she

returned to the hospital, but instead stood by, even facilitated, as Clifford was

given a Hobson’s choice of “voluntarily” consenting to admission to the hospital

for twenty-four hours rather than, as she understood it, detention at the hospital for

seventy-two hours pending a blue paper process that had not yet begun. Kemmerer

instructed Clifford to remove her clothes to allow a search for contraband, and

when she refused, he—in violation of MaineGeneral policy—called in two male

security guards to assist, and all three men watched as Clifford pulled down her

pants and underwear.

      [¶37] Clifford was then held against her will for the night in a locked room

in the psychiatric unit. When a psychiatrist finally evaluated her the following day,
                                                                                            21

he, like Grimmnitz before him, concluded that Clifford posed no threat and

discharged her.

                            IV. PROCEDURAL HISTORY

       [¶38]    Clifford commenced an action against MaineGeneral by filing a

notice of claim before a prelitigation screening panel pursuant to the Maine Health

Security Act (MHSA), 24 M.R.S. §§ 2853, 2903 (2013). After some discovery,

the parties waived further proceedings before that panel.

       [¶39]      On September 28, 2009, Clifford filed a complaint against

MaineGeneral in the Superior Court.            After filing a first amended complaint,

Clifford was granted leave to file a second amended complaint to add claims

against Kemmerer. In the second amended complaint, Clifford asserted claims

against MaineGeneral for professional negligence, alleged that MaineGeneral and

Kemmerer violated the MCRA by depriving her of liberty without due process in

violation of constitutional and statutory rights and subjecting her to an

unreasonable search in violation of her constitutional rights, and asserted that

MaineGeneral and Kemmerer had failed to accommodate Clifford’s disability in

violation of the MHRA.12




  12
      Clifford had previously alleged other claims against MaineGeneral and Kemmerer and claims
against Grimmnitz that have since been abandoned or dismissed and that are not at issue here.
22

          [¶40] On January 31, 2011, Kemmerer and MaineGeneral jointly moved for

dismissal and entry of summary judgment with respect to the MCRA and MHRA

claims asserted against them. While the motion was pending, the court stayed the

action to allow the claims against Kemmerer to be presented to a prelitigation

screening panel, pursuant to the MHSA. After the screening panel had issued its

decison, the court heard argument on the motion.

          [¶41] On January 14, 2013, the court granted in part and denied in part

Kemmerer’s and MaineGeneral’s joint motion. The court granted the motion as to

MaineGeneral only on the MCRA claim asserted against it, determining that

MaineGeneral may not, as a matter of law, be held vicariously liable for the acts of

its employees under the MCRA. In all other respects, the court denied the motion.

          [¶42] As to Kemmerer specifically, the court denied summary judgment,

determining that (1) Kemmerer is not entitled to absolute immunity from

Clifford’s MCRA claims pursuant to the immunity provisions of the MTCA,

concluding that discretionary function immunity does not extend to actions that

“clearly exceed the scope” of the official’s authority and that the summary

judgment record demonstrates that Kemmerer’s actions exceeded the scope of his

authority;13 (2) whether Kemmerer is entitled to common law qualified immunity

     13
      The trial court, citing Doe v. Graham, 2009 ME 88, 977 A.2d 391, distinguished opinions applying
absolute immunity to complaints alleging negligence and other common law tort actions in involuntary
commitment processes by observing that Clifford’s claims alleged “that rather than complying with the
                                                                                                           23

from Clifford’s MCRA claims is a question for the fact-finder; (3) issues of

material fact remain as to whether Kemmerer acted in violation of the MCRA,

including whether he threatened Clifford with physical force or violence;14 and

(4) based on the summary judgment record, Kemmerer’s conduct is actionable

pursuant to the MHRA and issues of material fact preclude entry of summary

judgment.

        [¶43] Kemmerer then filed notice of this interlocutory appeal. Kemmerer

also moved for an interlocutory report pursuant to M.R. App. P. 24(c), asking

whether the conduct in which he was alleged to have engaged is actionable under

the MHRA. The Superior Court granted the report on May 13, 2013. Although

there is no indication that any party sought a report of the second question, the

Superior Court then reported two questions of law to this Court pursuant to Rule

24(c): (1) “Whether the conduct found by [the] court to have been committed by

[Kemmerer] is actionable under the [Maine] Human Rights Act,” and (2) “Whether




blue paper process, [the defendants] threatened the blue paper process by making it clear that she would
not be released by the hospital and demanded a voluntary commitment,” and that “there was no statutorily
mandated diagnosis necessary to determine if involuntary commitment was warranted.”
   14
      Specifically, the court determined that it “expect[ed] . . . there was a likelihood of the use of force”
and that “one cannot surmise that physical force would not have been expected should [Clifford] not
comply” with Kemmerer’s instructions that she was staying at the hospital and that she disrobe.
24

[MaineGeneral] may be held liable under the [MCRA] on the theory of respondeat

superior for the wrongful acts of its employees.”15

                                    V. LEGAL ANALYSIS

A.         The Immunity Exception to the Final Judgment Rule

          [¶44] We generally review “only final judgments and not interlocutory

orders, absent an exception to the final judgment rule.”                        Dep’t of Agric. v.

Ouellette, 2007 ME 117, ¶ 7, 930 A.2d 1037. Determination of the availability of

absolute immunity under the MTCA or common law qualified immunity to shield

Kemmerer from Clifford’s MCRA claims involves questions of law and, pursuant

to the death knell exception to the final judgment rule, is appropriate for review on

interlocutory appeal.        See Francis v. Dana-Cummings, 2005 ME 36, ¶ 4 n.2,

868 A.2d 196; Webb v. Haas, 1999 ME 74, ¶ 5, 728 A.2d 1261.

B.        Absolute Immunity

          [¶45]   Kemmerer contends that he acted as a governmental employee

performing a discretionary function on behalf of the State within the meaning of

the MTCA and is thus entitled to absolute immunity from Clifford’s MCRA claims

by virtue of the MTCA, 14 M.R.S. § 8111(1)(C). Pointing to what he characterizes


     15
       Clifford filed a notice of cross-appeal in which she presented the issue of whether the Superior
Court correctly concluded that MaineGeneral was not liable under the MCRA on a theory of respondeat
superior, but Clifford has expressly declined to pursue that issue on appeal on the grounds that it lacks
finality pursuant to M.R. Civ. P. 54(b)(1). Accordingly, MaineGeneral has not participated in this
interlocutory appeal.
                                                                              25

as the “exceedingly broad” language of section 8111(1)(C), which states that

governmental employees are “absolutely immune from personal civil liability” for

performing discretionary functions, Kemmerer argues that section 8111(1) affords

immunity from claims arising both in common law tort and statutory causes of

action. Kemmerer also contends that, because the MCRA is silent on the subject

of immunity, it must be presumed that public officials “retain the immunity for

discretionary acts afforded them both by the common law and by the [MTCA].”

      [¶46] The MCRA, 5 M.R.S. §§ 4681-4685 (2013), does not address the

issue of immunity. We have determined that qualified immunity is available to

governmental employees or actors for claims brought pursuant to the MCRA. See

Jenness v. Nickerson, 637 A.2d 1152, 1154, 1159 (Me. 1994). However, because

whether a governmental actor is entitled to absolute discretionary function

immunity pursuant to section 8111(1) of the MTCA against claims brought

pursuant to the MCRA is a question of law, we review de novo the court’s

determination of that question.   Liberty Ins. Underwriters, Inc. v. Estate of

Faulkner, 2008 ME 149, ¶ 15, 957 A.2d 94; see generally McLain v. Milligan,

847 F. Supp. 970, 974 n.5 (D. Me. 1994) (noting that Maine courts had not

addressed whether the MCRA effectively waives immunity granted to

governmental entities and employees under the MTCA).
26

          [¶47] The MTCA affords governmental employees absolute immunity “from

personal civil liability” for, among other things, performing or failing to perform

discretionary functions within the scope of employment. 14 M.R.S. § 8111(1).16

This shield extends to private, “non-state” physicians who participate in the

emergency admission or involuntary commitment evaluation process. See Doe v.

Graham, 2009 ME 88, ¶¶ 14-17, 977 A.2d 391; Lever v. Acadia Hosp. Corp.,

2004 ME 35, ¶ 12, 845 A.2d 1178; Clark v. Me. Med. Ctr., 559 A.2d 358, 360

(Me. 1989); Taylor v. Herst, 537 A.2d 1163, 1165 (Me. 1988). Each of these prior

precedents established that the absolute immunity protections of the MTCA are

applicable to protect hospital staff from claims of negligent or careless conduct and




     16
          Title 14 M.R.S. § 8111(1) (2013) provides in relevant part:

            1. Immunity. Notwithstanding any liability that may have existed at common law,
                 employees of governmental entities shall be absolutely immune from personal civil
                 liability for the following:
                ....

               C. Performing or failing to perform any discretionary function or duty, whether or not
               the discretion is abused; and whether or not any statute, charter, ordinance, order,
               resolution, rule or resolve under which the discretionary function or duty is performed
               is valid[.]
               ....

            The absolute immunity provided by paragraph C shall be applicable whenever a
            discretionary act is reasonably encompassed by the duties of the governmental employee
            in question, regardless of whether the exercise of discretion is specifically authorized by
            statute, charter, ordinance, order, resolution, rule or resolve and shall be available to all
            governmental employees, including police officers and governmental employees
            involved in child welfare cases, who are required to exercise judgment or discretion in
            performing their official duties.
                                                                                 27

other common law tort claims in the emergency admission or involuntary

commitment process.

     [¶48] Here, as the trial court observed, the MCRA claim is based not on an

allegation of negligence or carelessness, but on facts suggesting violation of and

disregard for the statutory mandates and due process and Fourth Amendment

protections relating to the emergency admission or involuntary commitment

process. The question for us then becomes whether section 8111(1) provides

absolute immunity from MCRA claims that assert a violation of and disregard for

statutory mandates and due process and Fourth Amendment protections when, as

here, the emergency commitment process had once been properly initiated and

completed, Clifford had been discharged to return home, and then, based on no

new information, and without a new commitment process having been formally

initiated, Clifford was again ordered into custody, searched, and held overnight

before being examined and again discharged the next morning.

     [¶49]   We must strictly construe the MTCA because it was enacted in

derogation of common law. Beaulieu v. Aube Corp., 2002 ME 79, ¶ 19, 796 A.2d

683. We have previously construed the notice requirement of the MTCA, as

applied to a governmental entity, to apply “only to actions arising in tort” against

the entity. Mueller v. Penobscot Valley Hosp., 538 A.2d 294, 297-98 (Me. 1988).

We held that the MTCA, read as a whole, “was not intended to apply to causes of
28

action for breach of contract” or to “civil rights actions brought under 42 U.S.C.

§ 1983.” Id. at 298. In so concluding, we expressly determined that claims of

deprivation of liberty brought pursuant to the Federal Civil Rights Act, 42 U.S.C.

§ 1983 (1981), were not tort claims for purposes of the MTCA. Id. at 295-98

& n.4.

         [¶50] We see no rational basis to treat a claim asserting a violation of and

disregard for statutory mandates and due process and Fourth Amendment

protections brought pursuant to the Maine Civil Rights Act any differently than we

would treat such a claim brought pursuant to the Federal Civil Rights Act. See

Doe I v. Williams, 2013 ME 24, ¶ 72, 61 A.3d 718 (stating that the MCRA is

patterned after section 1983). See generally Leach v. Betters, 599 A.2d 424, 426

(Me. 1991) (assuming without deciding that the MTCA’s discretionary immunity

provisions did not apply to shield defendant police officers from a claim alleging a

violation of a statute that prohibited wanton and oppressive conduct in connection

with making an arrest).

     [¶51]     While the absolute immunity provision of section 8111(1) of the

MTCA would bar a claim against Dr. Kemmerer, even perhaps an MCRA claim,

based on negligence or carelessness, it does not bar this particular MCRA claim

alleging violation of and disregard for the statutory mandates and due process and

Fourth Amendment protections relating to emergency admission and involuntary
                                                                                  29

commitment processes, when, as here, Clifford had been properly evaluated and

discharged to return home, and then, based on no new information, and without a

new commitment process having been formally initiated, Clifford was again

ordered into custody, searched, and held overnight before being examined and

again discharged the next morning.

C . Common Law Qualified Immunity

      [¶52] Kemmerer contends that the Superior Court erred in denying him a

summary judgment on the MCRA claims because he is entitled to qualified

immunity, despite the court’s determination that genuine issues of material fact

remained to be resolved by the fact-finder on that issue. We review the denial of

Kemmerer’s motion for summary judgment based on qualified immunity “for

errors of law, viewing the evidence in the light most favorable to the nonmoving

party.” Rodriguez, 2007 ME 68, ¶ 19, 922 A.2d 484; see also Richards v. Town of

Eliot, 2001 ME 132, ¶ 24, 780 A.2d 281.

      [¶53]   Although the trial court determined that issues of material fact

preclude a conclusion as to whether Kemmerer is entitled to common law qualified

immunity against Clifford’s MCRA claims, which would typically bar our

addressing the issue on interlocutory appeal, see Wilcox v. City of Portland,

2009 ME 53, ¶¶ 13-14, 970 A.2d 295, Kemmerer has agreed that, for purposes of

this appeal, Clifford’s version of the facts apply when a dispute of facts exists. We
30

thus reach the issue of qualified immunity. See Rodriguez, 2007 ME 68, ¶ 16,

922 A.2d 484 (“Even when the trial court decides that there is a dispute of material

fact regarding immunity, we will reach the merits of an appeal if the parties do not

dispute the facts as alleged by the nonmoving party.”); see also Andrews v. Dep’t

of Envtl. Prot., 1998 ME 198, ¶ 5, 716 A.2d 212 (reaching the merits of whether

the defendants were entitled to qualified immunity if a fact-finder accepted the

plaintiff’s version of the facts, noting that the defendant would otherwise lose his

immunity from suit if we were to grant a plaintiff’s motion to dismiss an

interlocutory appeal).

          [¶54]     The qualified immunity doctrine establishes that “‘[g]overnment

officials performing discretionary functions generally are shielded from liability

for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

known.’”          Richards, 2001 ME 132, ¶ 23, 780 A.2d 281 (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)); Lyons v. City of Lewiston, 666 A.2d 95, 99

(Me. 1995).17

     17
      Claims of qualified immunity raised under the MCRA are analyzed similarly to qualified immunity
claims raised in federal civil rights actions. See Jenness v. Nickerson, 637 A.2d 1152, 1159 (Me. 1994);
see also Norton v. Hall, 2003 ME 118, ¶¶ 17, 20 & n.3, 834 A.2d 928. Additionally, the qualified
immunity analysis pursuant to section 1983 discussed in Richards v. Town of Eliot, 2001 ME 132, ¶ 23,
780 A.2d 281, and Lyons v. City of Lewiston, 666 A.2d 95, 99 (Me. 1995), applies to the MCRA.
See Jenness, 637 A.2d at 1154, 1159 (indicating our agreement that “the qualified immunity analysis
under section 1983 also applies to the MCRA” and holding that, “[h]aving found [the defendant police
officers] immune from the section 1983 claims, we also find them immune from claims under the
                                                                                                      31

        [¶55] “The two-part test for denial of qualified immunity is (1) whether the

plaintiff’s constitutional rights were violated, and (2) whether those rights were so

clearly established that reasonable defendants would have known that their specific

actions transgressed those rights.” Lyons, 666 A.2d at 99; see Webb, 1999 ME 74,

¶ 8, 728 A.2d 1261 (stating that qualified immunity shields government officials

from civil liability under section 1983 if their conduct does not violate clearly

established statutory rights of which a reasonable person would have known).

        1.      Due Process Claim and Violation of Statutory Rights

        [¶56] Kemmerer contends that he did not deprive Clifford of constitutional

or statutory due process by violating the statute’s procedural safeguards because

Clifford could have “taken her chances” with the emergency admission process,

and her choice to consent to voluntary admission and consequent failure to

undergo the emergency admission process does not make the process itself

constitutionally inadequate. We first address whether, under the facts established



MCRA” and affirming summary judgment to the officers on the MCRA claims); see also Hegarty v.
Somerset Cnty., 53 F.3d 1367, 1373 n.3 (1st Cir. 1995) (citing Jenness for the proposition that the
qualified immunity analysis applicable to federal civil rights claims applies to claims brought under the
MCRA); Jackson v. Town of Waldoboro, 751 F. Supp. 2d 263, 275 (D. Me. 2010) (same).

   We were not required to consider in Jenness v. Nickerson whether qualified immunity is available to
non-governmental officials against whom claims are brought pursuant to the MCRA, nor do we address
that issue here. See 637 A.2d at 1159. Neither party has raised the issue whether Kemmerer was a
government official for purposes of the qualified immunity analysis under the MCRA or whether he is
required to have been, and we need not consider that because we conclude that, regardless, Kemmerer is
not entitled to a summary judgment based on qualified immunity against Clifford’s MCRA claims.
32

in the summary judgment record, Kemmerer violated Clifford’s due process rights,

considering her statutory rights stated in 34-B M.R.S. § 3863, and whether those

rights were so clearly established that a person in Kemmerer’s position should

have known that his actions violated those rights. See Lyons, 666 A.2d at 99.

          [¶57]   Clifford’s constitutional rights stem from the prohibition against

deprivation of liberty without due process of law in the United States and Maine

Constitutions.18 See Graham, 2009 ME 88, ¶ 22, 977 A.2d 391; U.S. Const.

amend. XIV, § 1; Me. Const. art. I, § 6–A. To prove a violation, Clifford must

show that she was deprived of a liberty interest and that the process was

inadequate.19 See Botting v. Dep’t of Behavioral & Dev’l. Servs., 2003 ME 152,

¶ 23, 838 A.2d 1168.



     18
      To the extent that Clifford alleges a violation of due process rights protected under the Maine
Constitution as well as that of the United States, we interpret the Maine provision coextensively with the
due process rights provided by the Fourteenth Amendment. Doe I v. Williams, 2013 ME 24, ¶ 61,
61 A.3d 718.
     19
      We have held that state action is also a prerequisite to maintaining a due process challenge, but have
had no occasion to address whether that requirement applies in the context of the MCRA, which explicitly
provides for a remedy against interference of rights by private persons. See Graham, 2009 ME 88, ¶ 22
n.7, 977 A.2d 391 (declining to reach whether the defendant doctor in that action was a state actor for
purposes of the MCRA); cf. Phelps v. President & Trs. of Colby Coll., 595 A.2d 403, 405-08 (Me. 1991)
(interpreting the predecessor version of the MCRA, 5 M.R.S.A. § 4682 (Supp. 1990)), as it existed prior
to substantial amendments, as providing no remedy for alleged deprivation of First Amendment rights by
a private party because a violation of First Amendment rights required state action).

   We do not resolve this issue here. The parties did not address whether, and appear to implicitly agree
that, at least for purposes of this appeal, Kemmerer’s actions constituted state action for purposes of the
MCRA. We therefore assume that, if state action is required to bring a due process or other constitutional
claim under the MCRA, Kemmerer was a state actor as he contended, citing Doe v. Graham, in arguing
that he was entitled to absolute immunity pursuant to section 8111(1) of the MTCA.
                                                                                     33

      [¶58]    Involuntary commitment is a grave deprivation of a person’s

fundamental liberty.      See Zinermon v. Burch, 494 U.S. 113, 131 (1990)

(recognizing a “substantial liberty interest in avoiding confinement in a mental

hospital”); Green v. Comm’r of Mental Health & Mental Retardation,

2000 ME 92, ¶ 14, 750 A.2d 1265 (“[I]ndividuals who are not mentally ill and who

have not been found guilty of any crime have a fundamental interest in being free

from indefinite confinement by the government . . . .”).

      [¶59] To determine whether a specific procedure satisfies due process, we

balance three factors: (1) the private interest at stake; (2) the risk of error inherent

in the procedure; and (3) the government interest in the procedure. Graham,

2009 ME 88, ¶ 23, 977 A.2d 391 (citing Mathews v. Eldridge, 424 U.S. 319, 335

(1976)). As we discussed in Graham, the first and third factors are established

here. Id. In Graham, we then addressed whether the involuntary commitment

procedures were sufficient to “ensure that the risk of error in commitment

determinations is low.” Id. Although we were not ultimately required to decide

whether the statutory involuntary commitment procedures satisfy due process, we

concluded that “Maine’s involuntary commitment scheme contains numerous

procedural safeguards to protect against erroneous commitment decisions.” Id.

¶¶ 24-25; see 34-B M.R.S. § 3863. Because the record here, construed most

favorably to Clifford, shows that Kemmerer disregarded the procedures designed
34

to provide the necessary constitutional process, Kemmerer’s conduct failed to

ensure “that the risk of error” was low. Graham, 2009 ME 88, ¶ 23, 977 A.2d 391.

      [¶60] Viewing the facts in the light most favorable to Clifford, Kemmerer

did not evaluate Clifford’s mental illness or find that she posed a likelihood of

serious harm to herself or others, but he nonetheless directed that she not be

allowed to leave the hospital, without explaining why. He did so even though he

knew that (i) medical and mental health professionals, including Grimmnitz, had

found earlier that day that Clifford was not likely to pose a risk of harm; (ii) the

personnel at C & C who had directed Clifford’s return to MaineGeneral had not

evaluated her but had directed her return to the hospital based on the same

information that had caused her to be brought to the hospital the first time; and

(iii) no new application for Clifford’s evaluation had been presented. His angry

insistence that Clifford would not be allowed to leave the hospital was reinforced

by the presence of security, the misinformation given to her about her “options,”

which Kemmerer did not correct, and his apparent support for Clifford’s

voluntarily committing herself over threats of a blue paper process that had not

been initiated.

      [¶61] Kemmerer’s contention that Clifford was not due any process because

she chose not to avail herself of the emergency admission procedure is

unsupportable; Clifford did not freely give up her liberty or her right to process.
                                                                                                       35

Under the first prong of the applicable qualified immunity test, the summary

judgment record establishes that Kemmerer violated Clifford’s due process rights,

as well as her statutory rights pursuant to section 3863.20

        [¶62] Under the second prong of the test, we consider whether Clifford’s

constitutional and statutory rights were so clearly established that a reasonable

person in Kemmerer’s position would have known that his specific actions

transgressed those rights. Lyons, 666 A.2d at 99; see also Richards, 2001 ME 132,

¶ 25, 780 A.2d 281. “Clearly established” means that “the unlawfulness of the act

must be apparent in light of pre-existing law, not merely a general declaration of

the legal right allegedly violated.” Lyons, 666 A.2d at 99; see also Richards,

2001 ME 132, ¶ 25, 780 A.2d 281 (“The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.”).

        [¶63] Maine law, 34-B M.R.S. § 3805, specifically states, as it did at the

relevant time, that a person who willfully causes an unwarranted involuntary

hospitalization of any person or willfully causes the denial of any rights accorded

   20
       We are unpersuaded by Kemmerer’s argument that, pursuant to the Parratt-Hudson doctrine,
Clifford’s post-deprivation remedies afford her all the process she is due. See Zinermon v. Burch,
494 U.S. 113, 128-30, 132, 136-39 (1990). Despite Kemmerer’s failure to comply with the involuntary
commitment procedures of 34-B M.R.S. § 3863, his actions in ensuring that Clifford was held overnight
for examination—which he could have performed himself—when there was no application for
examination or any support for her return to the hospital and in creating a false “choice” for Clifford to
voluntarily commit herself to avoid the blue paper process, were not unforeseeable to and unpreventable
by the State. See Zinermon, 494 U.S. at 128-30, 132, 136-39.
36

to any person pursuant to the emergency admission law is guilty of a Class C

felony. However, an action’s unlawfulness can be apparent even though the action

has not been previously held unlawful.           Andrews, 1998 ME 198, ¶ 12,

716 A.2d 212. What the law was and whether it was clearly established at the time

of the alleged violation are questions of law. Id. ¶ 13.

      [¶64]    Kemmerer contends that the situation he confronted “was both

extraordinarily unusual and difficult,” and that the law was not clear as to what

must happen if a person is presented to the hospital, as here, in violation of

Maine’s protective custody statute, 34-B M.R.S. § 3862. That C & C or another

person may have violated Clifford’s constitutional and statutory rights prior to her

arrival at MaineGeneral does not release Kemmerer from liability.                The

involuntary commitment procedures were established at the time that Kemmerer

deprived Clifford of her due process rights by restraining her liberty without regard

to the statute’s procedural safeguards, see 34-B M.R.S. §§ 3805, 3863. Kemmerer,

as the director of emergency medicine at MaineGeneral, has acknowledged that he

was familiar with those procedures; and courts have long recognized that a person

has substantial liberty interests in “avoiding confinement in a mental hospital” and

in “not being confined unnecessarily for medical treatment,” Zinermon, 494 U.S.

at 131; see also Haley v. City of Boston, 657 F.3d 39, 50-51 (1st Cir. 2011) (stating

that the facts of previous cases need not be materially similar to the case at hand in
                                                                                  37

order to conclude that one is not entitled to qualified immunity, noting that a

“general constitutional rule already identified in the decisional law may apply with

obvious clarity to the specific conduct in question,” even if the specific action in

question has not previously been held unlawful (quoting United States v. Lanier,

520 U.S. 259, 271 (1997))).

      [¶65]    The record supports a conclusion that a reasonable person in

Kemmerer’s position would have known that, by informing Clifford that she was

not leaving the hospital under any circumstances—even though she had been

returned to the hospital based on no new information, there was no application

seeking her admission to the hospital, and no evaluation had been performed

although Kemmerer was authorized to perform one—and participating in or

facilitating her “voluntary” admission upon threat of initiating a blue paper process

that had not yet begun and probably would have failed, his conduct was objectively

unreasonable and “transgressed” Clifford’s statutory and due process rights.

See Lyons, 666 A.2d at 99. On this record, Kemmerer is not entitled to qualified

immunity against Clifford’s MCRA claim grounded in a violation of her right to

due process or rights secured by 34-B M.R.S. §§ 3805 and 3863.

      2.      Rights of Privacy and Freedom from Unreasonable Searches

      [¶66]    Clifford also contends that Kemmerer violated her constitutional

rights to privacy and freedom from an unreasonable search when, without having
38

reasonable grounds to believe that Clifford was in possession of contraband, he

instructed her to remove her clothes so that she could be searched for contraband.

Kemmerer contends that, on the undisputed facts, no search occurred and that, at

most, there was only a “threat” of a search, which does not amount to a

constitutional violation.

          [¶67] Again applying the two-part qualified immunity analysis, the first

question is whether Clifford’s constitutional rights were violated.21 “It is a piece of

constitutional bedrock that individuals have a reasonable expectation of privacy

regarding their bodies.” Spencer v. Roche, 659 F.3d 142, 146 (1st Cir. 2011).

“[A] strip search, by its very nature, constitutes an extreme intrusion upon personal

privacy, as well as an offense to the dignity of the individual.” Wood v. Clemons,

89 F.3d 922, 928 (1st Cir. 1996). However, “[w]hether a constitutional violation

exists for forcing a person to be viewed naked by members of the opposite sex

depends on the reasonableness of the actions under the circumstances.” Jenness,

637 A.2d at 1157. In Bell v. Wolfish, the United States Supreme Court described

how a court must determine whether a particular search is reasonable:



     21
      Like due process claims, claims brought pursuant to the Fourth Amendment, applied to the states by
virtue of the Fourteenth Amendment, apply to the actions of state agents. See New Jersey v. T.L.O.,
469 U.S. 325, 334-35 (1985); see also supra n.19 for additional discussion. To the extent that Clifford
alleges a violation under the Maine Constitution, article 1, section 5, which contains language nearly
identical to that of the Fourth Amendment, is interpreted coextensively with its federal counterpart. State
v. Gulick, 2000 ME 170, ¶ 9 n.3, 759 A.2d 1085.
                                                                                     39

      The test of reasonableness under the Fourth Amendment is not
      capable of precise definition or mechanical application. In each case
      it requires a balancing of the need for the particular search against the
      invasion of personal rights that the search entails. Courts must
      consider the scope of the particular intrusion, the manner in which it is
      conducted, the justification for initiating it, and the place in which it is
      conducted.

441 U.S. 520, 559 (1979).

      [¶68] Viewing the record in the light most favorable to Clifford, Kemmerer

violated Clifford’s constitutional right against unreasonable searches when, in

violation of hospital policy requiring documentation of cause to believe she

possessed prohibited items on her person, he directed her to remove her clothes

and submit to a body search for contraband, and then, in further violation of

hospital policy, called two male security guards to the examining room to enforce

that directive after Clifford refused to comply. At the time of the search, there was

no evidence to support a belief that Clifford carried contraband, there were no

exigent circumstances that demanded that she be searched at all, much less in the

presence of three men, and although Clifford had, under duress, consented to

medical treatment, she was not legally committed under either the voluntary,

see 34-B M.R.S. §§ 3831, 3832 (2007), or involuntary commitment procedures.

Consequently, the search was devoid of any legitimate governmental justification

and was not based on any reasonable suspicion that Clifford carried contraband, as
40

required by the law and the hospital’s own body search policies. See generally

Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370-71 (2009).

      [¶69] Kemmerer’s contention that his conduct was merely a “threat” of a

search and that Clifford removed her own clothes is unavailing. Clifford only

removed her clothes when Kemmerer, supported by two male security guards,

ordered her to do so, and it became clear that Kemmerer would not relent. See

Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S. Ct. 1510,

1514-15 (2012) (stating that the term “strip search” is imprecise and can include an

“instruction to remove clothing while an officer observes from a distance of, say,

five feet or more” or “directing” individuals to run their fingers through their own

hair, to raise their arms, or expose their own body parts with no touching by the

official); Stoudemire v. Michigan Dep’t of Corr., 705 F.3d 560, 566-67, 572-74

(6th Cir. 2013) (concluding that a constitutional violation existed when, in 2007, a

prison guard instructed an inmate to remove her clothes and submit to a visual

search without a “legitimate penological interest” for that “particular search”).

      [¶70] As to whether Clifford’s right to be free of a body search in this

situation was “clearly established,” Lyons, 666 A.2d at 99, a person in Kemmerer’s

position was on notice in September 2007 that such a search, absent reasonable

suspicion, would have violated Clifford’s constitutional rights under the

circumstances presented in this record. Although jurisprudence in this area has
                                                                                   41

since evolved, see Florence, 132 S. Ct. 1510, case law prior to September 2007

had established that strip searches of individuals arrested for minor offenses were

unconstitutional if not supported by a reasonable suspicion that the arrestees were

hiding a weapon or contraband. See Florence v. Bd. of Chosen Freeholders of

Cnty. of Burlington, 621 F.3d 296, 304-05 & n.4 (3d Cir. 2010) (noting that, prior

to 2008, ten circuit courts of appeals had held that searches of arrestees for minor

offenses were unconstitutional when not supported by reasonable suspicion); see

also Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001) (“[A]n

indiscriminate strip search policy routinely applied . . . can not be justified simply

on the basis of administrative ease in attending to security considerations”).

      [¶71]     If law enforcement officers, pre-2008, violated the Fourth

Amendment if they strip searched arrestees absent at least a reasonable suspicion

of wrongdoing, then it would have been apparent to a reasonable person in

Kemmerer’s position that medical practitioners were not permitted to strip search

patients, particularly a female patient with threatened assistance from male

nonmedical staff, without cause.      Cf. Davis v. Rennie, 264 F.3d 86, 114-15

(1st Cir. 2001) (concluding, in analyzing a qualified immunity defense, that cases

establishing a particular duty, in that case a duty to intervene, on police and

correctional officers, were sufficient to put mental hospital staff at a state

institution on notice of “at least the same duty,” noting that “involuntarily
42

committed patients are entitled to greater protection than those ‘whose conditions

of confinement are designed to punish’” (quoting Youngberg v. Romeo,

457 U.S. 307, 321-22 (1982)).

      [¶72] MaineGeneral’s body search policy in effect at the time, as included

in the summary judgment record, required “reasonable cause” and consent to

search the body of a patient and, with respect to patients in behavioral units who

did not consent to a search, “documented reasonable cause to believe the patient

has prohibited items on his or her person” before a physician could order a patient

in the behavioral unit to be searched, and even then, the search had to be conducted

by at least one staff member of the same gender as the patient. Kemmerer is not

entitled to common law qualified immunity against Clifford’s MCRA claim

grounded in a violation of her rights to privacy and freedom from unreasonable

searches.

      [¶73] In sum, because (1) on the summary judgment record, there are at

least disputes as to material fact as to whether Kemmerer deprived Clifford of

liberty without due process of law and violated her statutory rights under section

3863, and violated her right to be free from unreasonable searches, and (2) a

reasonable defendant would have understood that Kemmerer’s conduct in each

instance amounted to violations of clearly established constitutional or statutory
                                                                                                        43

rights, Kemmerer is not entitled to qualified immunity from Clifford’s MCRA

claims.

D.      Remaining Issues

        [¶74] The Superior Court determined that genuine issues of material fact

precluded the entry of summary judgment in Kemmerer’s favor on the merits of

Clifford’s MCRA claims. Kemmerer argues that we should address the merits of

Clifford’s MCRA claim because the issues involved are “inextricably tied” with

the issues relating to immunity and, further, that we should conclude, contrary to

the trial court’s determination, that he is entitled to judgment as a matter of law on

those claims. Specifically, Kemmerer argues that his actions, as established in the

summary judgment record, did not constitute a “threat of physical force or

violence” within the meaning of the MCRA and therefore he cannot be held liable

under the MCRA.22

        [¶75] Contrary to Kemmerer’s contentions, whether or not he intentionally

interfered or attempted to intentionally interfere with Clifford’s constitutional

rights by a “threat of physical force or violence” against her is not relevant to, and


   22
       To prevail on the MCRA claims, Clifford must prove, among other things, that Kemmerer used or
threatened physical force or violence when he deprived her of a constitutional or statutory right. 5 M.R.S.
§§ 4682(1-A), 4684 (2013); see Bagley v. Raymond Sch. Dep’t, 1999 ME 60, ¶ 10 n.5, 728 A.2d 127
(affirming the grant of summary judgment to the defendants on the plaintiffs’ MCRA claim, citing
5 M.R.S. § 4681 (Supp. 1998), solely on the basis that the plaintiffs did not present any claim of the use
or threat of physical force or violence).
44

therefore is not inextricably tied to, the analysis relating to whether he is entitled to

qualified immunity under the MCRA.                         Therefore, it would not serve judicial

economy to address the merits of Clifford’s MCRA claim on interlocutory appeal

when, regardless, issues will remain for the trial court’s consideration. See Bank of

New York v. Richardson, 2011 ME 38, ¶¶ 7, 12, 15 A.3d 756. Pursuant to the final

judgment rule, we do not reach this issue and, thus, do not disturb the motion

court’s determination that the summary judgment record precludes the entry of

summary judgment in Kemmerer’s favor on the merits of Clifford’s MCRA

claims. See id.; Norton v. Town of Long Island, 2003 ME 25, ¶ 6, 816 A.2d 59;

see also Limone v. Condon, 372 F.3d 39, 50, 52 (1st Cir. 2004) (declining to

consider non-immunity issues along with the immunity issue addressed in an

interlocutory appeal, stating that “[f]ederal courts long have recognized that

interlocutory review of a denial of qualified immunity does not in and of itself

confer jurisdiction over other contested issues in the case”); cf. Ryan v. City of

Augusta, 622 A.2d 74, 76-77 (Me. 1993).

           [¶76]     Finally, we decline to accept the questions reported pursuant to

M.R. App. P. 24(c).23 See Littlebrook Airpark Condo. Ass’n v. Sweet Peas, LLC,


     23
          M.R. App. P. 24(c) provides:

           If the trial court is of the opinion that a question of law involved in an interlocutory order
           or ruling made by it ought to be determined by the Law Court before any further
           proceedings are taken, it may on motion of the aggrieved party report the case to the Law
                                                                                                    45

2013 ME 89, ¶ 9, 81 A.3d 348 (discussing the factors we apply when

independently deciding whether, in our discretion, to accept a report, which we do

“sparingly”).

       The entry is:

                       Judgment affirmed as to the denial of summary
                       judgment on issues of immunity. As to the
                       remaining issues, Kemmerer’s appeal is dismissed
                       as interlocutory. Report discharged. Remanded
                       for further proceedings consistent with this
                       opinion.




On the briefs:

       Christopher C. Taintor, Esq., Norman, Hanson & DeTroy, LLC, Portland,
       for appellant Scott Kemmerer

       Curtis Webber, Esq., and Patricia C. Shorey, Esq., Linnell, Choate &
       Webber, Auburn, for appellee Linda J. Clifford

       Mark C. Joyce, Esq., Disability Rights Center of Maine, Augusta, for amicus
       curiae Disability Rights Center of Maine




       Court for that purpose and stay all further proceedings except such as are necessary to
       preserve the rights of the parties without making any decision therein.

   We note that it does not appear that the trial court’s second reported question was initiated by any
“motion of the aggrieved party,” M.R. App. P. 24(c), or that all the parties, which would include
MaineGeneral, agreed to the report of this question as required by M.R. App. P. 24(a) and (b). It
therefore appears that the second reported question is not properly before us.
46

At oral argument:

        Christopher C. Taintor, Esq., for appellant Scott Kemmerer

        Curtis Webber, Esq. for appellee Linda J. Clifford



Kennebec County Superior Court docket number CV-2009-271
FOR CLERK REFERENCE ONLY
