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A federal appeals court in Boston has denied a request from the city of Old Town to rehear arguments in the case of Norman Harrington, the Old Town police officer who sued the city and the Penobscot County district attorney for alleged civil-rights violations.
Issuing two decisions last week, the appellate court refused to rehear arguments either as a panel of three judges or as the full court of six judges.
As a result, the case is expected to return to Maine’s federal court for a trial.
“It means we’ll have our day in court, which is what (Norman Harrington) has wanted for a long time,” said Bangor attorney Warren Silver, who represents the Old Town police officer.
“I don’t think the decision was entirely unexpected,” said David Cole, Old Town city manager. “We viewed it as a long shot.”
Cole referred the matter to the city’s attorney, Vernon Aery of Waterville. The city’s attorney wasn’t available Tuesday, according to a staff person.
Silver said he understood after a discussion with Arey that the case wouldn’t be presented to the U.S. Supreme Court, which would be the next step in the appeal process.
Calling the decision “wonderful news,” Silver said, “I want a trial, which it looks like what we’re going to get.”
Harrington filed his 1989 lawsuit against Old Town, City Manager David Cole, Penobscot District Attorney R. Christopher Almy and others, claiming that his constitutional rights were violated when he was required to undergo a sexual-response test called a penile-plethysmograph for his employment.
Harrington also claimed that Almy violated his rights when the district attorney refused to prosecute his police cases.
Harrington had been suspected, but was never charged, with being involved in a child-sex ring. He temporarily lost custody of his own son and was suspended from his police duties, though he later was reinstated to the Police Department.
Last November, a three-judge panel of the 1st U.S. Circuit Court of Appeals in Boston handed down a split decision on a summary judgment issued by U.S. Chief Judge Gene Carter of Portland against Harrington. The appellate court upheld Carter’s finding that Almy was immune from being sued for his decision not to prosecute Harrington’s police cases.
The judges said, however, that a trial should be held to determine whether Harrington’s constitutional rights had been violated. Old Town then asked for a review of the case, which was denied last week.
Harrington’s police cases still are being handled by the Attorney General’s Office, said Silver. He said that between 10 and 20 cases had been resolved, including several convictions and guilty pleas. Silver said he had “never heard (Harrington’s credibility) brought up” as an issue in the cases.
The attorney said he expects the federal case to be returned to Carter, who will decide whether the chief judge will hear the case or it will be turned over to U.S. District Judge Morton Brody, who sits in Bangor.
The attorney said he expected the case to go to trial on two issues, whether the city’s order to Harrington to take the test violated the police officer’s constitutional rights, and whether Town Manager Cole should have known the order violated Harrington’s rights.
Silver said he expected the trial to be precedent-setting. “This case will decide what one can do in an employment setting,” he said.