Two policemen violated the rights of a protester when they arrested him last year “at the behest of” the wealthy activist who led a conservative overhaul of the U.S. Supreme Court, according to a lawsuit filed Thursday.
The federal false-arrest lawsuit is bolstered by a 52-minute dashcam video that captures audio of police talking with Leonard Leo, who accused Eli Durand-McDonnell of cursing at him and his family on a street in Northeast Harbor. Leo’s claim led police to go outside and arrest Durand-McDonnell as he demonstrated by the home while the camera rolled.
The suit and the audio are a revealing look behind closed doors as one of the country’s most powerful brokers at the center of a vast conservative network talks with local police over how to handle a protester furious with Leo’s pivotal role in overhauling the U.S. Supreme Court.
The suit says 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.”
Durand-McDonnell, 24, is the plaintiff in the federal lawsuit filed Thursday in U.S. District Court in Bangor against the two officers who arrested him — Lt. Kevin Edgecomb of the Mount Desert Police Department and Officer Nathan Formby of the Bar Harbor Police Department.
It seeks an unspecified amount of damages, and Leo is not named in the lawsuit, which claims the officers violated Durand-McDonnell’s First Amendment and 14th Amendment rights, with two additional state claims related to false arrest and violating the Maine Civil Rights Act.
Edgecomb and Formby charged Durand-McDonnell with disorderly conduct after the arrest on July 31, 2022, but it was dismissed by Hancock County District Attorney Robert Granger earlier this year. He said in a court filing that the case “hangs on the precipice” between a crime and protected speech after Durand-McDonnell’s attorney said police lacked evidence to arrest him.
“In political protests, the police are supposed to protect the free exercise of speech while keeping the peace,” Matt Morgan, Durand-McDonnell’s Augusta-based attorney, said. “In this case, they unfortunately sided with Leo and arrested Eli while he was literally in the act of peacefully protesting on public property.”
Edgecomb and Formby did not immediately respond Thursday to a request for comment made via email and phone calls. Leo issued a statement through a spokesperson saying many protests have happened near his home but that Durand-McDonnell “went out of his way to harass my wife and young daughter as we were walking along the street.”
“The district attorney declined to prosecute citing lack of resources, but I hope [Durand-McDonnell] gets the help he needs to properly distinguish between First Amendment speech and menacing attacks on innocent bystanders,” Leo said.
Durand-McDonnell declined an interview with the Bangor Daily News through Morgan, who spoke on his behalf.
Leo, 57, has been a longtime leader of the Federalist Society, the powerful conservative legal group. After forming a dark-money network in 2005 to back high court nominees from then-President George W. Bush, he was credited with helping former President Donald Trump appoint Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the court.
His position in the conservative movement has never been stronger. A conservative billionaire left a $1.6 billion company to a Leo-led group in a novel move that was first reported last year by The New York Times and could amount to the largest ever political advocacy donation. Leo pitched it as a conservative answer to rival Democratic dark-money networks.
Durand-McDonnell’s arrest came during one of many semi-regular protests over a period of years by liberal activists outside a Northeast Harbor home Leo purchased in 2018. One came as U.S. Sen. Susan Collins, R-Maine, attended a campaign fundraiser there in 2019 ahead of her election to a fifth term the following year.
Only audio and no video comes from Edgecomb’s body camera microphone as he and Formby talk with Leo inside and then come back outside to arrest Durand-McDonnell, with the police vehicle’s dashcam continuing to record the street and capturing part of the arrest.
“I think it’s time for us to press some charges,” Leo said after welcoming officers into his study.
Leo called police in July 2022 after he said Durand-McDonnell swore at him in Northeast Harbor. The audio reveals him saying the protester had been “harassing us for weeks” but “crossed the line” by cursing at Leo and his family.
Durand-McDonnell denies making the statements that Leo reported to police, said Morgan, who argued they would be protected speech. But Durand-McDonnell told the New Yorker he recalled yelling “you’re a f—— fascist” at Leo from the passenger seat of the car his mother was driving. He said his mother yelled the other statements Leo accused Durand-McDonnell of making.
Inside the study, Leo goes on to tell police that Durand-McDonnell “looks unstable” and that protesters were engaging in “harassment and intimidation intended to drive someone out of the community.”
“I mean, if he wants to put a bullet between my two eyes, fine. Let him do it, OK?” Leo said of Durand-McDonnell. “But I can’t have him dealing with my family that way.”
Edgecomb discussed the potential charges with Leo, saying “if he was yelling expletives at you up on Main Street, that’s disorderly conduct, and I think we can charge him for that.”
“If I could make it my way, he wouldn’t be allowed in Northeast Harbor, but bail commissioners don’t do that often,” the policeman adds.
The two officers left Leo’s home after the roughly 20-minute conversation to inform Durand-McDonnell of the charge and arrest him. Other protesters approached and chanted “shame on you.” Edgecomb told demonstrators that police had witnesses, also replying the charge came because the offensive speech happened “in a public place, look it up.”
Maine law defines disorderly conduct as a crime when a person “knowingly accosts, insults, taunts or challenges any person with offensive, derisive or annoying words” in a public or private place that would be likely to prompt “a violent response” by an ordinary person being accosted.
But it also says an officer needs to be in the presence of a person committing a Class E misdemeanor crime to make a warrantless arrest, unless the person was out on bail. Morgan said Durand-McDonnell was not out on bail at the time.
While Leo had footage of a separate incident involving additional protesters, he provided no video of Durand-McDonnell swearing at him. Edgecomb told Leo he would get statements from Leo and his wife before going to arrest Durand-McDonnell.
For more than 100 years, Mount Desert Island has been a summer colony for the rich and powerful, including businesswoman Martha Stewart and several generations of Rockefellers.
The island has counted other active political players such as Caspar Weinberger, who served as defense secretary under Ronald Reagan, and Zbigniew Brzezinski, who was Jimmy Carter’s national security adviser, among its seasonal residents.
But virtually all of them have maintained a low profile at their summer retreats and during occasional excursions out into the local villages. The attention that Leo has received, and the protests that have gathered outside his house, stand out compared with the relatively little paid to his peers and neighbors.
Edgecomb’s local ties were apparent during the tense arrest outside Leo’s home, as several protesters called the lieutenant who has been with the department for more than 20 years by his first name. One said “your mother would be embarrassed” as he made the arrest.
“You’re a good guy getting on the wrong side, Kevin,” one said. “It’s really, really sad.”
BDN writer Bill Trotter contributed to this report.