Gray v. State of Maine

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss CIVIL ACTION
DOCKET NO. AP-18-65

JOSHUA GRAY,

Petitioner ORDER ON PETITIONER'S
SOC APPEAL
V.

STATE OF MAINE, DEPARTMENT
OF PUBLIC SAFETY,

Respondent

Before the Court is Petitioner Joshua Gray's SOC petition for review of the Department of

Public Safety's (the "Department's") denial of his application for a Professional Investigator's

License. For the following reasons, the petition is granted.

Background

Joshua Gray is licensed as a Professional Investigator in Tennessee, Vermont,

Massachusetts and New Hampshire. On January 26, 2018, Gray applied for an investigator's

license in Maine. As part of its review of Gray's application, the Department conducted a

background investigation which included an investigation into Gray's use of social media. This

investigation revealed that Gray has published numerous statements concerning a fatal police

shooting which occurred in Vassalboro in 2017. The dominant theme of these statements is that

an officer who was involved in the shooting, Lt. Scott Ireland, is a "dirty cop" whose career has

been plagued by lying, internal affairs trouble and abuse of power issues and who committed first

degree murder while he was "likely drunk." As a result of its investigation, the Department

concluded that Gray had made statements which demonstrate that he "lack[s] the requisite

competency and fitness of character to act as a PI in the State of Maine." Consequently, the

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Department denied Gray's application on August 31, 2018. Gray's attorney received a copy of the

denial on September 14, 2018 and on October 11, 2018 Gray filed a petition for review of the

denial of his application.

Standard of Review

The Court reviews an administrative agency's decision for an abuse of discretion, error of

law, or findings not supported by the evidence. Uliano v. Bd. of Envtl. Prat., 2009 ME 89, ~

12,977 A.2d 400 (citation omitted). "An administrative decision will be sustained if, on the basis

of the entire record before it, the agency could have fairly and reasonably found the facts as it

did." Id. (quoting CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, ~ 6,703 A.2d 1258). The

party seeking to vacate an agency decision bears the burden of persuasion. Kelley v. Me. Pub.

Emps. Ret. Sys., 2009 ME 27, ~ 16,967 A.2d 676. "When an agency concludes that the party with

the burden of proof failed to meet that burden, [the court] will reverse that determination only if

the record compels a contrary conclusion to the exclusion of any other inference." Kelley v. Me.

Pub. Emples. Ret. Sys., 2009 ME 27, ~ 16,967 A.2d 676 (quotation omitted) .

Discussion

The State of Maine reqmres that professional investigators obtain a professional

investigator's license from the Chief of the Maine State Police. 32 M.R.S. § 8104. In order to

obtain an investigator's license, an applicant must demonstrate that they possess good moral

character. Id. § 8105( 4). Further, the Chief may refuse to issue a license if the applicant has:

A. Engaged in conduct that evidences a lack of ability or fitness to discharge the
duty owed by the licensee to a client or the general public; or

B. Engaged in conduct that evidences a lack of knowledge or an inability to apply
principles or skills to carry out the practice for which the person is licensed.

32 M.R.S. § 8113(6).

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In this case, the Chief of the Maine State Police determined that "since early 2017, [Gray

had] made postings on social media platforms (including on [his] business' official Facebook page)

that include statements that are materially false." (R. 4.) The Chief further determined that"[ b]y

publishing such misleading statements publicly, [Gray has] demonstrated conduct that brings into

question [his] auilily to competently investigate and then report investigative findings with

accuracy, objectivity, and without bias." Id. The Chief reasoned that "[f]rom a consumer protection

perspective, these findings ... are of great concern." Id. Consequently, the Chief denied Gray's

license based on his findings that Gray "lack[s] the requisite competency and fitness of character

to act as a PI in the State of Maine." (R. 4.)

Gray argues that denying his application on the basis of his social media articles and posts

violates his right to free speech and thus constitutes an error of law. Gray asserts that his social

media postings are statements of opinion which were not likely to incite violence and that they

were made in his capacity as a private citizen. Because, in his view, "fajll speech, in any form and

by any method, has always been ruled as protected except speech which incites imminent

violence," Gray argues that his social media posts cannot be considered when determining whether

he has good moral character.

The Department argues that many of Gray's statements are demonstratively false and that

this supports a finding that Gray is dishonest, not able to accurately report facts, and is incompetent

to act as a professional investigator. The Department also points out that defamatory speech is not

protected by the First Amendment. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2002)

("As a general principle, the First Amendment bars the government from dictating what we see or

read or speak or hear. Freedom of speech of course has its limits; it does not embrace certain

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categories of speech, including defamation, incitement, obscenity, and pornography produced with

real children.")

As a general matter, "laJ State cannot exclude a person from the practice of Jaw or from

any other occupation in a manner or for reasons that contravene the Due Process or Equal

Protection Clause of the Fourteenth Amendment." In re Feingold, 296 A.2d 492, 498-- 99 (Me.

1972) (quoting Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239 (1957)). And as a

matter of First Amendment principles, a Government may not regulate speech based upon the

motivating ideology, opinion or perspective of the speaker. Rosenberger v. Rector & Visitors of

the Univ. of Va., 515 U.S. 819,829 (1995).

In this case, the Department's Notice of Denial shows that Gray's application was denied

because of the statements that Gray made on social media. Further, the notice shows that the

Department's denial was based upon its disagreement with the viewpoints expressed in these

statements. The Department reasons that Gray should not receive a private investigator's license

as the statements show that he is incompetent and Jacks the necessary fitness of character. This

finding is in turn based solely on what the Department characterizes as "materially false"

statements that Gray has made publicly. In other words, it is based on the Department's

disagreement with Gray's publicly stated opinion that the State Trooper is a dirty cop with a history

of internal affairs problems who committed murder.

In its court filings the Department argues that the denial was not actually based upon Gray's

public opinions about police corruption and competency, but rather that it was based on conduct

which shows that Gray is unable to investigate with accuracy, objectivity, and without bias. In

support of its argument, the Department has provided a spreadsheet compiling Gray's statements

and the Department's findings regarding the purported veracity of each statement. Additionally,

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the Department has also submitted the Attorney General's investigative report on the use of deadly

force by the State Police during the 2017 Vassalboro shooting; a memorandum from Lt. Anna

Love of the State Police Office of Professional standards stating that Lt. Ireland does not have any

history of being disciplined for misconduct; and over 300 pages of statements that Gray has made

on social media.

Although the Department has offered evidence which supports its opinion that Lt. Ireland

is not guilty of murder and has not been subject to internal affairs discipline', there is no record

evidence of the investigative methods Gray employed or the specific information Gray either

utilized or ignored in reaching his conclusions about Lt. Ireland and the Maine State Police .

Moreover, there is nothing in the record to suggest that whatever Gray did in regards to the

shooting was an "investigation" as opposed to him making statements that were understandably

perceived by state actors to be false, outrageous and offensive. The Court concludes that the

Department's determination that Gray lacks the necessary competency to investigate is based

primarily on the fact that Gray has reached opinions or conclusions about Lt. Ireland and the State

Police which are completely at odds with the Department's, and which do display a hostile bias

toward Lt. Ireland.

Further, although Gray's statements may arguably contain defamatory material,' the

Department has overlooked two important considerations which the Court cannot. First, the Court

in this Rule 80C appeal is not in any position to adjudicate whether the statements constitute

defamation against a public figure. More fundamentally, however, the Maine Supreme Court has

, It should be noted that there is no record evidence that Lt. Ireland has not been the subject of internal affairs
investigations. The only evidence is that he has not been disciplined as a result of any investigation.
, The parties disagree over whether Gray's statements should be fairly characterized as statements of opinion or
statements of fact. See Lester v. Powers, 596 A .2d 65, 69 (Me. 1991) (an opinion which does not imply the existence
of undisclosed defamatory facts cannot support a claim for defamation).

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recognized that statements made about or against public officials , even ones which are "objectively

false", inflammatory, or outrageous, are protected by a limited First Amendment privilege. See

Plante v. long, 2017 ME 189, ~ 10, 170 A.3d 24. Because the statements at issue here all concern

and pertain to a matter of public importance and public figures - a police shooting, the resulting

investigation, and the police officer involved in the shooting - this appeal cannot be rcsol vcd in

the usual manner by determining if there is competent evidence in the record to support the

administrative decision . The Petitioner is making a constitutional argument, which of course is

something that can be done in an administrative appeal such as this one. The Court has concluded

that the issue therefore becomes what standard the Department is required to apply to the

statements in order to determine if Petitioner can be denied a license based on, as the Department

frames the issue, his "competence" and "character."

While the Court could not find any Maine case in which a professional license was denied

solely based on statements made by the applicant in social media, the Law Court in Plante did not

just reaffirm and reiterate the limited privilege that applies to allegedly defamatory statements

made against public figures . It held that in order to overcome the privilege, a showing must be

made by clear and convincing evidence that the statements were made with "actual malice"-i.e .,

with knowledge that the statements were false or with reckless disregard of their truth or falsity.

Id. While the Department understandably believes, based on their investigations of Lt. Ireland, that

the statements were "materially false," the Law Court clarified in Plante that the objective falsity

of a statement or statements cannot by itself support a finding of actual malice. Id.~ 12.

In its notice of denial, the Department does not make any finding whether Petitioner made

these statements with knowledge that they were false, or with reckless disregard of their truth or

falsity. This means that it has not provided any evidence showing that Gray acted with actual

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malice when he published his social media statements. Because the Department focused solely on

the objective falsity of Gray's statements, it applied the wrong legal standard to determine whether

Gray lacks competence and good moral character because he made defamatory or false statements.

Consequently, this matter must be remanded to the Department to allow it to determine whether

Gray, at the time he published his allegedly defamatory social media posts, "in fact knew that his

statements were false or ... acted with a high degree of awareness of their probable falsity." Id.~

10 (quotation omitted).

Conclusion

For the foregoing reasons, the entry will be:

The Petitioner's Rule 80 C petition is granted in part. The decision of the Department of

Public Safety is reversed and remanded to the Department to conduct an appropriate process

or proceeding which would enable it to determine if the Petitioner's statements were made

with actual malice as defined by Maine law. The clerk is directed to incorporate this order

into the docket by reference. M.R. Civ. P. 79(a).

Date:

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