UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Eugene Gayda

v. Civil No. 05-cv-244-JD

City of Nashua, Michael Buxton,

Michael J. Vaccaro, and Philip Chouinard

O R D E R

Eugene Gayda brings a Fourth Amendment civil rights claim

under 42 U.S.C. § 1983 and state law claims of trespass and

invasion of privacy, arising from an incident in July of 2002

when Nashua Fire Rescue officers entered his apartment without a

warrant or his consent. The defendants move for summary judgment

asserting that Gayda’s Fourth Amendment rights were not violated,

that qualified immunity applies, that evidence is lacking to

support claims of supervisory and municipal liability, and that

the evidence does not support his state law claims. Gayda

objects to summary judgment.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

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the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

“An issue is genuine if it may reasonably be resolved in

favor of either party at trial, and material if it possesses the

capacity to sway the outcome of the litigation under the

applicable law.” Iverson v. City of Boston, 452 F.3d 94, 98 (1st

Cir. 2006) (citations and internal quotation marks omitted). To

avoid summary judgment, “a measure of factual specificity is

required; a conglomeration of conclusory allegations, improbable

inferences, and unsupported speculation is insufficient to

discharge the nonmovant’s burden.” Id. “As to any essential

factual element of its claim on which the nonmovant would bear

the burden of proof at trial, its failure to come forward with

sufficient evidence to generate a trialworthy issue warrants

summary judgment to the moving party.” Clifford v. Barnhart, 449

F.3d 276, 280 (1st Cir. 2006).

Background

On July 6, 2002, Captain Philip Chouinard, with several

other officers from Nashua Fire Rescue, arrived at a multi-unit

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dwelling located at 7-9 Charles Street in Nashua to attempt an

administrative inspection for automatic fire-warning devices. 

The Fire Marshall had requested a reinspection of the property

after it had previously been found not to comply with the local

and state requirements for such devices. The property was owned

by Eugene Gayda, who lived in one of the four apartments in the

building. 

Each apartment at 7-9 Charles Street had a separate outside

entrance that was marked by a large, black numeral and letter on

a white door. When the officers arrived in a fire department

truck, Chouinard and the other officers approached a screen door,

which was unlocked. Because the door behind the screen was open,

the officers could see into the building where carpeted stairs

led up to another door that was also open. Chouinard knocked on

the door jamb and called out, asking if anyone were home. When

he received no answer, Chouinard and the other officers went into

the building and up the stairs to the second door where they met

Gayda, who was in his living room. 

Standing on the threshold of the open living room door,

Chouinard identified himself and the other officers and asked if

they could enter the apartment to inspect for automatic fire

warning devices. Gayda refused and told them to leave. 

Chouinard attempted to persuade Gayda to consent to the

inspection, but Gayda continued to refuse and insisted that they

leave. After exchanges lasting between a minute and three

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minutes, the officers went down the stairs, telling Gayda that

they would return with a warrant. Once outside, the officers

stopped on the porch to discuss the situation until Gayda again

told them to leave, at which time they got into their truck and

drove away.

Discussion

Gayda contends that his Fourth Amendment right to be free

from unreasonable searches was violated by Chouinard’s actions,

and that Chouinard’s supervisors, Chief Michael Buxton, and Fire

Marshall Michael J. Vaccaro, and the City of Nashua are also

liable for the violation of his Fourth Amendment right. Gayda

further alleges claims of trespass and invasion of privacy under

New Hampshire law. The defendants assert that the incident did

not violate Gayda’s Fourth Amendment rights, that Chouinard is

entitled to qualified immunity, that Gayda cannot show a factual

basis for supervisory or municipal liability claims, and that he

cannot prove his state law claims.

A. Fourth Amendment Violation

“The Fourth Amendment protects ‘[t]he right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.’” Devenpeck v. Alford, 543

U.S. 146, 152 (2004). “It is a basic principle of Fourth

Amendment law that searches and seizures inside a home without a

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warrant are presumptively unreasonable.” Brigham City v. Stuart,

126 S. Ct. 1943, 1947 (2006). Whether an action is reasonable in

the Fourth Amendment context is an objective inquiry, making the

subjective intent or motivation of a particular officer

irrelevant. Id. at 1948. The warrant requirement is subject to

exceptions in exigent circumstances. Id. at 1947.

The parties agree that Chouinard, along with other officers,

entered Gayda’s home without a warrant and without Gayda’s

consent. Chouinard does not suggest that exigent circumstances

existed when he entered Gayda’s apartment. The parties also

agree that the purpose of Chouinard’s visit was to inspect the

building for automatic fire warning devices. They disagree as to

whether Chouinard’s actions constituted a Fourth Amendment

violation. 

Gayda asserts that Chouinard’s entry into his apartment was

unreasonable and violated the Fourth Amendment. Chouinard

contends that he did not violate the Fourth Amendment because he

did not search the apartment but instead only entered,

mistakenly, to ask permission to inspect for smoke detectors. 

Chouinard states that he thought the door on the ground floor was

an entrance into a common area in the apartment building and that

he went up the stairs to find a door to an individual apartment. 

Gayda disputes Chouinard’s account of the incident, arguing that

the decor in the entry and stair area did not look like a common

area in an apartment building and that the numbers on the outside

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doors indicated that those were the entrances to the individual

apartments. Chouinard also contends that if any Fourth Amendment

violation occurred, it was too minimal to be actionable.

Chouinard relies on Artes-Roy v. City of Aspen, 31 F.3d 958

(10th Cir. 1994). In that case, the court rejected the

plaintiff’s Fourth Amendment claim, arising from an entry into

her home by a building inspector without a warrant or her

consent, on alternative grounds, holding that his actions did not

violate the Fourth Amendment and that if any violation had

occurred, it was de minimis and, therefore, not actionable. Id.

at 962-63. The court concluded that because the inspector

intended to enforce a stop-work order and did not intend to

search, inspect, or make an arrest when he entered the

plaintiff’s home, no Fourth Amendment violation occurred. Id. at

962. Alternatively, the court held that the entry was at most a

de minimis violation that was not actionable. Id. at 963.

The Fourth Amendment, however, protects against any physical

intrusion into a home by the government. Welsh v. Wisconsin, 466

U.S. 740, 748 (1984) (“It is axiomatic that the ‘physical entry

of the home is the chief evil against which the wording of the

Fourth Amendment is directed.’” quoting United States v. U.S.

Dist. Court for E. Dist. of Mich., 407 U.S. 297, 313 (1972)). 

“[P]rivacy and security in the home are central to the Fourth

Amendment’s guarantees as explained in [the Court’s] decisions

and as understood since the beginnings of the Republic.” Hudson

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v. Michigan, 126 S. Ct. 2159, 2170 (2006) (Kennedy, J.,

concurring). As Justice Breyer wrote in dissent in Hudson, the

Supreme Court 

decided 120 years ago . . . in frequently quoted

language that the Fourth Amendment’s prohibitions apply

“to all invasions on the part of the government and its

employes of the sanctity of a man’s home and the

privacies of life. It is not the breaking of his

doors, and the rummaging of his drawers, that

constitutes the essence of the offence; but it is the

invasion of his indefeasible right of personal

security, personal liberty and private property.” 

Id. at 2172 (quoting Boyd v. United States, 116 U.S. 616, 630

(1886)). In addition, the subjective intent or purpose of the

intruding officer does not determine whether a Fourth Amendment

violation occurred. See Brigham City, 126 S. Ct. at 1948. 

In contrast to Supreme Court precedent, the Tenth Circuit

suggests in Artes-Roy that the Fourth Amendment does not apply to

a governmental agent’s uninvited and warrantless intrusion into a

home for purposes other than conducting a search or making an

arrest. Given the breadth of Fourth Amendment protection for the

privacy of the home and lacking a “de minimis” standard in this

context in the First Circuit, to the extent the Tenth Circuit

limited Fourth Amendment protection to actual or intended

searches or arrests, that holding is not persuasive. In

addition, even if Artes-Roy provided the governing law, material

factual disputes about what Chouinard intended when he entered

Gayda’s apartment and what a reasonable officer in his position

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would have known preclude summary judgment.

The Tenth Circuit also held in Artes-Roy that if a Fourth

Amendment violation occurred when the inspector entered the

plaintiff’s house, the violation was de minimis and therefore not

actionable. Artes-Roy, 31 F.3d at 963. The court explained that

the intrusion was so insubstantial, in the circumstances of that

case, that no actionable constitutional wrong had occurred. Id.

Chouinard argues that any violation that occurred because of his

instrusion into Gayda’s apartment with the other officers was

similarly de minimis.

In Artes-Roy, the court noted that the plaintiff knew the

inspector was coming to her house because she saw him outside;

his intrusion into the house was minimal, and workers employed by

the plaintiff were present while the inspector was there. Id. at

962. In this case, although Chouinard argues that he

inadvertently entered Gayda’s apartment, thinking he was in

common space shared by the tenants, that remains a disputed

point. It is undisputed that he and the other officers entered

through the outside door, crossed the entry area, and climbed the

stairs to Gayda’s living room. It is also undisputed that they

did not leave when they were first told they were inside Gayda’s

apartment and asked to leave but instead attempted to persuade

Gayda to consent to the inspection. Although Gayda had some

warning of their arrival from the noise of their truck and

although the intrusion lasted only a few minutes, the

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circumstances do not permit a conclusion that it was sufficiently

insubstantial to be de minimis as a matter of law. 

 Therefore, Chouinard has not shown that he is entitled to

summary judgment on the merits of the Fourth Amendment claim

against him.

B. Qualified Immunity

Chouinard alternatively asserts that he is entitled to

qualified immunity. “‘Qualified immunity protects public

officials from civil liability insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Valdizan v.

Rivera-Hernandez, 445 F.3d 63, 64 (1st Cir. 2006) (quoting

Surprenant v. Rivas, 424 F.3d 5, 14 (1st Cir. 2005)). The threestep analysis for qualified immunity requires the court to

determine whether the plaintiff alleged that the defendant

violated a constitutional right, whether the right was clearly

established at the time in question, and whether an objectively

reasonable officer in the defendant’s position would have

believed that his action violated the clearly established right. 

Wilson v. City of Boston, 421 F.3d 45, 52 (1st Cir. 2005).

Chouinard does not dispute that Gayda has alleged a

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violation of his Fourth Amendment right or that such a right was

clearly established in July of 2002 when he entered Gayda’s

apartment. He argues that his actions were reasonable because he

did not realize he had entered Gayda’s apartment when he entered

the building through the unlocked screen door. 

In support of his qualified immunity claim, Chouinard states

in his affidavit that he thought the screen door opened into a

common area and that Gayda’s apartment door would be at the top

of the stairs. He argues that his mistake was reasonable because

other apartment buildings in Nashua, including other buildings 

owned by Gayda, have common areas from which the individual units

open. Gayda responds, however, that the numbers and letters (7A,

7B, 9A, and 9B) on each of the four separate doors into the

building should have alerted Chouinard that those doors entered

into each apartment and that the area inside the door was not a

common area. He also argues that the decor of the entry and

stairway indicated that the area was part of his private

apartment and not a common area. 

The third step of the qualified immunity inquiry is not

based on the subjective intent of the defendant. See Tower v.

Leslie-Brown, 326 F.3d 290, 296 (1st Cir. 2003). Instead, it is

an objective inquiry into whether a reasonable officer would have

known that his actions would violate Gayda’s Fourth Amendment

rights. Id. In this case, the question is whether a reasonable

fire department officer, in the same circumstances as Chouinard,

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would have realized that the door he opened lead into a private

apartment not into a common area. The circumstances surrounding

Chouinard’s entry, viewed favorably to Gayda, raise factual

issues as to what a reasonable officer would have understood,

which cannot be resolved on summary judgment.

C. Municipal Liability

The City of Nashua contends that Gayda cannot show that a

triable issue exists as to its liability for any constitutional

violation that occurred. For the city to be liable, Gayda must

show that the Fourth Amendment violation resulted from a policy,

ordinance, regulation, or official decision adopted by the city

or from a custom or practice that was “so widespread or pervasive

that the policymakers must have had actual or constructive notice

of it, yet did nothing to modify it.” Surprenant, 424 F.3d at

19. Gayda asserts that Chouinard entered his home without a

warrant or his consent as the result of a custom or practice in

Nashua.

In support of his theory, Gayda points to two other

intrusions by Nashua Fire Rescue into apartments to conduct

inspections without proper consent or a warrant. Gayda states in

his affidavit that before the incident in his apartment, Nashua

Fire Rescue officers had inspected an unoccupied and unlocked

apartment in another multi-unit property, which he owned, without

his consent or a warrant. He also submits the affidavit of

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Suzanne Bell who states that at the request of Nashua Fire Rescue

officers, she unlocked the door of her tenants’ unit to allow

inspection for smoke detectors but was later sued by the tenants

for improperly consenting to the inspection.

Gayda offers only three incidents over several years to

support his claim of a custom or practice to enter homes without

consent or a warrant. The inspection of Suzanne Bell’s property

was done with her consent, although not with the tenants’

consent. Gayda’s evidence is much too sparse to show a pervasive

or widespread practice in Nashua of conducting inspections in

violation of the Fourth Amendment. Therefore, the City of Nashua

is entitled to summary judgment on Gayda’s federal claim.

D. Supervisory Liability

Gayda contends that Chief Buxton and Fire Marshall Vaccaro

are liable for the alleged Fourth Amendment violation due to

improper or deficient training they provided to Chouinard. As

supervisors, Buxton and Vaccaro can be liable only for their own

actions, not based on a theory of vicarious liability. Whitfield

v. Melendez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005). When

supervisors did not directly participate in unconstitutional

conduct, they “may only be held liable where (1) the behavior of

[their] subordinates results in a constitutional violation and

(2) the supervisor[s’] action or inaction was affirmatively

linked to the behavior in the sense that it could be

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characterized as supervisory encouragement, condonation or

acquiescence or gross negligence amounting to deliberate

indifference.” Id. (internal quotation marks omitted). 

Deliberate indifference in the context of a charge of inadequate

training means a failure to provide training despite “an obvious

likelihood that inadequate training will result in the violation

of constitutional rights.” Id. at 10.

Gayda offers nothing to show that Chief Buxton played any

role in training Chouinard. In fact, the excerpt of Fire

Marshall Vaccaro’s deposition that Gayda submitted with his

objection establishes that Vaccaro was responsible for training

officers to do smoke detector inspections. Therefore, Gayda has

not shown a trialworthy issue with respect to Buxton’s liability

for the alleged Fourth Amendment violation.

More importantly, Gayda offers little to show that the fire

department’s training for conducting inspections was deficient. 

He suggests that the training was not well organized and lacked

defined standards. He criticizes part of a training slide that

was apparently used in 2003, after the incident at Gayda’s

apartment. In contrast, Chouinard states in his affidavit that

he was trained by Nashua Fire Rescue before the incident at

Gayda’s apartment and that he was taught not to enter any living

area without the owner or occupant being present and to leave if

asked to do so. Further, the 2003 training slide, which Gayda

relies upon, taken as a whole actually supports Chouinard’s

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statement. 

Based on the record presented here, Gayda has not provided a

factual basis for his supervisory liability claims. Chief Buxton

and Fire Marshall Vaccaro are entitled to summary judgment on

Gayda’s federal claim against them.

E. State Law Claims

Gayda alleges state law claims of trespass and invasion of

privacy. The defendants argue that he cannot prove either claim

because Chouinard’s entry into Gayda’s apartment was inadvertent,

not intentional, and because the intrusion did not meet the high

standard to prove an invasion of privacy.

Trespass under New Hampshire law is an intentional tort,

requiring proof that the defendant intentionally, not just

negligently, intruded onto the plaintiff’s property. Moulton v.

Groveton Papers Co., 112 N.H. 50, 54 (1972); see also Titan

Holdings Syndicate, Inc. v. City of Keene, 898 F.2d 265, 271 (1st

Cir. 1990). Invasion of privacy requires proof “that the

defendant should have realized that it would be offensive to

persons of ordinary sensibilities” and that “the intrusion has

gone beyond the limits of decency.” Karch v. BayBank FSB, 147

N.H. 525, 534-35 (2002) (internal quotation marks omitted).

As is discussed above, whether Chouinard entered Gayda’s

apartment intentionally or inadvertently is disputed. Therefore,

summary judgment is not appropriate on the trespass claim.

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Gayda’s invasion of privacy claim presents a close question

as to whether Chouinard’s intrusion went beyond the limits of

decency. Taking the facts in the light most favorable to Gayda,

however, a possibility exists that a jury could find in his

favor. Therefore, summary judgment is also denied on that claim.

Conclusion

For the foregoing reasons, the defendants’ motion for

summary judgment (document no. 5) is granted with respect to the

federal claim against the City of Nashua, Chief Buxton, and Fire

Marshall Vaccaro, and is otherwise denied.

Trial is scheduled to begin on October 17, 2006. The

parties’ pretrial statements indicate that no demand or offer has

been made. Now that the summary judgment motion is resolved, the

parties are directed to use their best efforts to explore

settlement before the parties and the court incur the additional

expenditures of time and resources that will be necessary for

trial. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 2, 2006

cc: Brian J.S. Cullen, Esquire

Fred K. Mayer, III, Esquire

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