Bizarre Maine Restaurant Fire Case Reinstated

The US 1st Circuit Court of Appeals has reinstated a bizarre lawsuit from the State of Maine that accuses the local fire department of allowing a restaurant to burn due to firefighters’ animosity with its owners.

Robert and Judy Cousins, owners of Cap’n Nemo’s Restaurant, claimed the Tremont Fire Department and ten individually named firefighters either purposefully or negligently allowed the building to be destroyed in a December 4, 2013 fire. The suit also named the editor, the publisher and a reporter for the Mount Desert Islander (MDIslander), a local newspaper, accusing them of defamation, and claimed that firefighters violated their First Amendment Rights by removing a sign from the damaged building that was critical of the department.

The Cousins brought the suit themselves, without legal counsel, and originally sought $1.86 million in damages. In June, 2015, US District Court Judge D. Brock Hornsby dismissed the claims concluding the Cousins failed to state a federal cause of action. On appeal the 1st Circuit affirmed Judge Hornsby’s ruling on the First Amendment claim, but reversed on the counts alleging due process and equal protection violations.

  • The [Cousins] claimed that, due solely to personal malice, the defendant firefighters had purposely fought the fire on the appellants’ property in a manner that would ensure its complete destruction. The appellants alleged that before the fire, the fire captain defendant had stated several times that they would let the appellants’ property burn if it caught fire; that the day after the fire, the fire chief had told one firefighter that they would have to find another way to run the appellants out of town; and that while fighting the fire, the defendants had avoided putting water directly onto the fire, allegations that suffice to allege a plausible substantive due process claim. … (substantive due process claim requires “stunning evidence of arbitrariness and caprice that extends beyond mere violations of state law, even violations resulting from bad faith to something more egregious and more extreme”).
  • Furthermore, if the [Cousins], who alleged that they had been treated less favorably than other municipal taxpayers whose property had caught on fire, and who had called upon the fire department to extinguish it, can prove that the defendants intentionally failed to fight the fire on their property effectively due solely to personal malice, and without reference to any distinguishing characteristic of their property or fire, they would appear to satisfy this court’s requirement that equal protection claimants show “substantial similarity” between them and their comparators. … (“the proponent of the equal protection violation must show that the parties with whom he seeks to be compared have engaged in the same activity vis-à-vis the government entity without such distinguishing or mitigating circumstances as would render the comparison inutile”)

The case has been returned to the District Court of Maine for further proceedings.

Here is a copy of the ruling: Cousins-v-Higgins-1st-Circuit

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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