A Bar Harbor man filed a federal lawsuit on Thursday alleging that two police offers violated his constitutional rights by arresting him during a peaceful protest last summer. The lawsuit also claims that officers were acting at the request of Leonard Leo, a man at the center of the conservative shift at the U.S. Supreme Court.
On July 31 of last year, Eli Durand-McDonnell joined a small protest on the street outside of Leonard Leo's summer home in Northeast Harbor. Such events were a regular occurrence in this affluent corner of Mount Desert Island ever since the U.S. Supreme Court reversed Roe v. Wade the previous month. And Durand-McDonnell was there to protest against a man who many credit with helping choose several of the conservative justices that voted to overturn the landmark abortion case.
But the tone changed when two police officers apparently came out of Leo’s home and arrested Durand-McDonnell as he and others stood peacefully on the side of the road.
Attorney Matt Morgan said Thursday that arrest violated his client's federal and state constitutional rights.
"At its core, this case is about the freedom of political speech and protest under our First Amendment,” Morgan said. “Eli and other protested outside of Leo's vacation home following the Dobbs decision last summer and he was arrested for protesting. He never should have been arrested or prosecuted and this suit seeks to vindicate his First Amendment rights."
Durand-McDonnell was charged with disorderly conduct because, earlier in the day, Leo claims that he cursed and harassed he and his wife as well as their young daughter as they were walking down the street. Hancock County District Attorney Robert Granger dropped the charges this spring, telling the Bangor Daily News that it was a borderline offense and his office had a backlog of more serious cases to handle.
Morgan said Durand-McDonnel never engaged in any such conduct. But he added that the arrest never should have happened because Maine law makes clear that officers must actually witness disorderly conduct. And in this case, Morgan says officers were taking Leo's word for it based on recordings of their conversations that were captured on their microphones and dashboard camera.
"A lot of what he did was captured on cruiser camera,” Morgan said. “He was doing nothing wrong and doing what a lot of people should be doing, which is engaging civically and having a peaceful political protest with other people in that community and that neighborhood."
The complaint filed in U.S. District Court in Bangor alleges that the officers "made this illegal and retaliatory arrest to silence Durand-McDonnell’s free speech and at the direct behest of Leo, a powerful and wealthy conservative political activist who has used millions of dollars as political speech to influence American politics and courts."
The lawsuit is already drawing national media attention because of Leo's involvement. As a leader of the Federalist Society, Leo has reportedly helped to elevate conservative judges to top positions, most notably the Supreme Court. He is also a prominent conservative fundraiser.
Leo declined an interview request. But in a written statement, Leo said he called the police that day because Durand-McDonnell “went out of his way to harass my wife and young daughter as we were walking along the street, accosting them directly after addressing me and then standing outside our house to be there when we returned. I informed the police because his repeated incidents of erratic and aggressive demeanor had escalated into targeting my family.”
Leo added that he was relying on police to find the best resolution to the situation. But while the Hancock DA dropped the case, Leo added that, “I hope Mr. Durand gets the help he needs to properly distinguish between First Amendment speech and menacing attacks on innocent bystanders.”
Zachary Heiden, chief legal counsel at ACLU of Maine, said the case raises important questions.
"The police in our society have a lot of discretion about who to arrest and when and what for but they are expected to exercise that discretion responsibly,” Heiden said. “Here, the police apparently exercised their discretion to arrest somebody to retaliate against their speech. That's illegal, it's unconstitutional and the officers involved should be held accountable."
Neither of the two officers named in the lawsuit, Lt. Kevin Edgecomb and Officer Nathan Formby of the Bar Harbor and Mount Desert police departments, could be reached for comment on Thursday. And interim Bar Harbor town manager Sarah Gilbert told Maine Public that she could not comment on the case.
But Morgan said it is ironic that officers allegedly violated his client's free speech rights when Leo and the Federalist Society frequently talk about attacks on conservative speech.
Heiden said that that even unpleasant speech, including cursing, is protected.
"The First Amendment protects the right to criticize powerful individuals and there are any number of things that people could say about Mr. Leo that would be protected under the First Amendment even though Mr. Leo might not want to hear them,” Heiden said.
The complaint is seeking damages from the two officers, who have several weeks to file a response.
