Merrill v . Town of Seabrook CV-95-173-M 09/19/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Merrill, Plaintiff, v. Civil N o . 95-173-M

Town of Seabrook, Seabrook Police Department, Sergeant Robert Granlund, and Officer David Currier, Defendants.

O R D E R

Christopher Merrill brings an action against the Town of

Seabrook, the Seabrook Police Department, and Sergeant Robert

Granlund alleging violations of his Fourth and Fourteenth

Amendment rights under

and related state tort

claims, as well as a defamation claim against Officer David

Currier. Merrill's claims arise from an incident at Merrill's

home involving Seabrook police following a dispute between

Merrill and a tenant in his boarding house. The defendants move

for summary judgment.

STANDARD OF REVIEW

Summary judgment is appropriate if 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 judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party first must show the absence of a genuine issue of material fact for trial. Anderson v . Liberty Lobby,

Inc.,

4 2 , 256 (1986). If that burden is met, the

opposing party can avoid summary judgment on issues that it must

prove at trial only by providing properly supported evidence of

disputed material facts that would require trial. Celotex Corp.

v . Catrett,

1 7 , 322 (1986). A fact is "material" if it

might affect the outcome of the litigation, and an issue is

"genuine" if the record would allow a reasonable jury to return a

verdict in favor of the nonmoving party. Anderson,

; see also National Amusements, Inc. v . Dedham,

3 1 ,

735 (1st C i r . ) , cert. denied,

(1995). The record

must be interpreted in the light most favorable to the nonmoving

party, the plaintiff in this case, and all inferences resolved in

his favor. McIntosh v . Antonio,

9 , 33 (1st Cir. 1995).

BACKGROUND

Christopher Merrill rented rooms in his home to several

tenants. On Saturday, February 2 7 , 1993, an argument among three

2 of Merrill's tenants required his intervention. As a result, Merrill told one, George Pinkham, that he would have to leave the next day, the last day of Pinkham's paid week. Pinkham objected, and later the same day, at about 8:00 p.m., Pinkham spoke to Sergeant Robert P. Granlund at the Seabrook police station. He requested police assistance to prevent Merrill from evicting him. Granlund told Pinkham that his dispute with Merrill would have to be settled by the Hampton District Court, not by the police. Soon after, Merrill called the police station, and after first asking the dispatcher to send the police, he spoke to Granlund, asking him for police assistance to evict Pinkham.1 Again, Granlund refused to intervene. Merrill insisted that he had a right to police assistance to evict a troublesome tenant just as motels rely on the police to remove unruly guests. Merrill said that he had received police assistance in the past to remove tenants. When Granlund continued to refuse police assistance, Merrill explained that Pinkham threatened another tenant with a knife and asked Granlund to come to the house to talk with the

1 In his objection to summary judgment, Merrill states that he disputes the defendants' version of his telephone conversation with Granlund but does not explain what material differences exist. The summary of the telephone conversation recited here is taken from Merrill's affidavit and deposition testimony, which is not materially different from the defendants' version.

3 other tenants about the situation. Granlund told Merrill he would have to contact a justice of the peace before the police could help. Merrill responded that he would take care of it himself on Sunday and hung up. At 9:15 p.m. the same night, Pinkham returned to the police station to complain that Merrill had turned off power to the electric heater in his room. Granlund consulted the Hampton District Court clerk about the situation, and the clerk told him that it appeared to be a landlord-tenant dispute, a civil matter, not a criminal incident. Nevertheless, Granlund decided to go to Merrill's house and notified other Seabrook officers who were already in the area. The police arrived at Merrill's house at about 10:30 p.m..

Merrill states that he and his wife got ready for bed at about 10:20 p.m. and turned out the lights. Just as he got into bed, his dog started to bark, and he saw three police cruisers2 in his yard. He dressed hurriedly and went to the kitchen where the police were shining flashlights into the house and Granlund

2 Merrill remembers three cruisers and three police officers, whom he identifies as Deshaies, Chase, and Cody, in addition to Granlund, and points to the police log that shows that Cody was dispatched to his house on that night. The police have testified that Cody was not present until after Merrill was arrested.

4 was knocking on the door with other officers standing behind him.

Merrill did not turn on any lights. Granlund turned his

flashlight toward Merrill, shining the light in his face.

Granlund repeatedly asked Merrill to come outside to talk with

him and asked to see either his boarders' license, as Merrill

remembers, or his boarders' register, as Granlund remembers.

Merrill yelled at Granlund to stop shining the light in his face

and responded that he did not have a boarders' license or

register. He ordered the police to leave his property. When

Granlund did not leave, Merrill asked him to get the chief of

police, which Granlund refused to d o , and again demanded that the

police leave. Merrill remembers that he was angry and scared by

the situation, and the other officers testified that he was upset

and screaming. Finally, Merrill opened the inner door toward

himself and then opened the outside screen door that swung out

and struck Granlund who was standing on the steps directly in

front of the door. Granlund fell backward, off the steps.

Merrill remained inside his house.

Granlund immediately told Merrill that he was under arrest.

In response, Merrill closed and locked the inside door. Granlund

ordered Merrill to come out and then broke a pane of glass in the

door and sprayed Merrill with pepper gas as Merrill tried to keep

5 him from opening the door. Meanwhile, Merrill's wife had come

into the kitchen and turned on the lights. Merrill went to the

kitchen sink to wash the pepper gas out of his eyes and face.

The police kicked in the door and broke into the kitchen.

Merrill and his wife backed away retreating into their bedroom.

Merrill then ran through the group of police and out of the

house. The police also left the house, in part to avoid the

pepper gas that had been sprayed into the house. Merrill was

taken into custody without resistance in his yard. Merrill was

then taken to the police station where he was treated for the

effects of the pepper gas. He was charged with assaulting a

police officer and resisting arrest.

During the incident, the police did not ask about Pinkham,

and did not try to find him, or check his room. Even after

Merrill was subdued and arrested, none of the three officers

inquired about Pinkham or attempted to investigate his condition.

Pinkham later told Granlund that he had been in his room during

the police encounter with Merrill that night and that he moved

out of the room within the next day or two.

When Granlund returned to duty on March 3 , he obtained a

warrant to arrest Merrill on an additional charge — violation of

New Hampshire's statute requiring hotel keepers to maintain guest

6 registers and to allow inspection by police. See

(1995). Merrill responded to the warrant by voluntarily surrendering himself at the police station. Another Seabrook police officer, David Currier, provided information to a newspaper reporter about Merrill's case that led to newspaper articles which Merrill claims were false and defamatory. Merrill was tried and convicted in Hampton District Court of assaulting a police officer and resisting arrest, but he was found not guilty on the charge of failing to keep and allow inspection of a guest register. Merrill appealed his convictions but later assented to the state's motion to remand the matter to district court for consideration of Merrill's motion for annulment.

DISCUSSION

Merrill brings § 1983 claims against Sergeant Granlund, the Town of Seabrook, and the Seabrook Police Department alleging that his warrantless arrest for assault and resisting arrest on February, 2 7 , 1993, was unconstitutional and that the police used excessive force in effecting his arrest.3 Merrill also

3 Although Merrill pleads his claim under both the Fourth and Fourteenth Amendments, the Supreme Court has clarified that

7 challenges the constitutionality of his March 3 arrest, for failure to maintain a guest register, on grounds that the police lacked probable cause to support the warrant. He further alleges that the Seabrook police and Granlund violated his "statutory and constitutional rights" by filing a criminal complaint and prosecuting him for failing to maintain a guest register.4 In

claims based on allegations of an unconstitutional arrest and use of excessive force are properly brought under the Fourth Amendment only. See Albright v . Oliver, 114 S . C t . 8 0 7 , 813 (1994); Graham v . O'Connor,

(1989); see also Welsh v . Wisconsin,

4 0 , 748-49 (1984) (nonconsensual warrantless arrest in suspect's home absent exigent circumstances violates Fourth Amendment). Merrill also mentions the New Hampshire Constitution in his claim without any description of what right he claims to have been violated, or describing the cause of action he seeks to assert. State constitutional rights are of course not actionable under § 1983. 4 Merrill titles the fifth count in his complaint "malicious prosection," and alleges a violation of his "clearly established statutory and constitutional rights" without stating whether he intends a state or federal cause of action and without specifying the statutory or constitutional source of the rights he seeks to assert. Because § 1983 creates no substantive rights, but only provides a means for redressing violations of federal rights, a claim brought under § 1983 must allege a specific federal constitutional or statutory violation as the basis of the claim. Albright, 114 S . C t . at 811. In addition, a federal constitutional claim based on factual allegations of "malicious prosecution" requires a complex legal analysis. See id. at 813 (no Fourteenth Amendment substantive due process claim for prosecution without due process); Reid v . New Hampshire,

3 2 , 341 (1st Cir. 1995) (no Fourteenth Amendment procedural due process claim based on malicious prosecution when state law remedy exists); see also Calero-Colon v . Betancourt-Lebron,

, 3-4 (1st Cir. 1995). Although New Hampshire provides a

8 addition, he alleges that the police actions were driven by a town or police department policy and were caused by inadequate training and supervision. He also brings tort claims against Granlund and the Seabrook police for assault and battery during the February 27 arrest and against Officer David Currier for defamation. Merrill also alleges that Seabrook and the police department are vicariously liable for assault and battery by the police.

In the defendants' motion for summary judgment, Granlund asserts qualified and absolute immunity against Merrill's federal claims. He also defends his use of pepper gas spray as being necessary to arrest Merrill and therefore not battery. The municipal defendants, the town and police department, contend that Merrill cannot show that he suffered a violation of his constitutional rights and, therefore, his municipal claims fail. Currier seeks summary judgment on the grounds that he is entitled to a qualified privilege from defamation liability for the

common law cause of action for malicious prosecution, see, e.g., Aranson v . Schroeder,

(N.H. 1995), Merrill does not seem to invoke state law. Because the defendants seek summary judgment on the grounds of absolute immunity rather than on the merits, it is unnecessary to further explore the legal contours of Merrill's possible claims especially since he himself is unclear as to just what his claims are.

9 information he provided to a newspaper reporter about Merrill.

The issues raised by the defendants are resolved as follows.

A. Absolute Immunity

The Seabrook police and Sergeant Granlund assert that they

are absolutely immune from liability for Merrill's claims that

they charged and prosecuted him without probable cause for

failure to maintain a guest register.5 A state prosecutor enjoys

absolute immunity for acts related to the initiation and conduct

of a criminal prosecution. Imbler v . Pachtman,

(1976). The Supreme Court employs a functional approach when

evaluating claims of absolute prosecutorial immunity. See Butz

v . Economou,

7 8 , 515 (1978). Therefore, police

officers are entitled to prosecutorial immunity to the extent

that they perform prosecutorial functions as "advocate[s] for the

state." Guzman-Rivera v . Rivera-Cruz,

6 , 29 (1st Cir.

1995) (quoting Burns v . Reed,

7 8 , 491 (1991)); see also

Malachowski v . City of Keene,

0 4 , 712 (1st Cir.)

(police officer entitled to absolute immunity with respect to

5 Persons providing public lodging accommodations are required to maintain a registration system for all guests and for inspection by law enforcement officers.

.

10 claims based on the officer's instigation of juvenile delinquency

proceedings), cert. denied,

(1986). "The decision

whether or not to charge is at the core of the prosecutorial

function[]," Harrington v . Almy,

7 , 40 (1st Cir. 1992),

and the decision not to dismiss a criminal case "lies at the

heart of the prosecutorial function," Guzman-Rivera, 55 F.3d at

31. In addition, New Hampshire law provides absolute immunity

from state law claims based on a defendant's actions that are

"functionally related to the initiation of criminal process or to

the prosecution of criminal charges." Belcher v . Paine,

(1992).

Merrill's claim in Count Five alleges that the police and

Granlund, specifically, initiated and prosecuted the guest

register criminal complaint without probable cause. Merrill does

not dispute that the defendants were performing a prosecutorial

function when charging him and prosecuting the case against him.

Accordingly, the defendants are entitled to absolute immunity

from Merrill's claims whether he intended to rely on state or

federal law. Defendants' motion for summary judgment is granted

as to Count Five of the complaint.

11 B. Qualified Immunity

Granlund asserts qualified immunity from liability as to

Merrill's claims that his arrests on February 2 7 , for assault and

resisting arrest, and on March 3 for failing to maintain a guest

register, were unconstitutional.

Public officials performing discretionary functions are

entitled to qualified immunity from suit for violations of

federal law "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v . Fitzgerald,

0 0 , 818 (1982). The qualified immunity analysis in this

circuit has two components: (1) "whether the constitutional right

asserted by the plaintiff was 'clearly established' at the time

of the alleged violation," and (2) "whether 'a reasonable

official situated in the same circumstances should have

understood that the challenged conduct violated that established

right.'" S t . Hilaire v . City of Laconia,

0 , 24 (1st

Cir. 1995) (quoting Burns v . Loranger,

(1st

Cir. 1990)), cert. denied, 116 S . C t . 2548 (1996). To be clearly

established, the right asserted must be articulated at an

appropriate level of particularity so that "'[t]he contours of

12 the right [are] sufficiently clear that a reasonable official

would understand that what he is doing violates that right,'"

although the same action need not previously have been ruled

unconstitutional. S t . Hilaire, 71 F.3d at 24-25 (quoting

Anderson v . Creighton,

(1987)). "The ultimate

question of whether a defendant is entitled, on a given set of

facts, to the protection of qualified immunity is a question of

law for the court to decide." Wood v . Clemons,

2 2 , 927

(1st Cir. 1996), accord Elder v . Holloway, 114 S . C t . 1019, 1023

(1994).

1. February 27 arrest.

Granlund contends that he is entitled to qualified immunity

protection against Merrill's claim that he entered Merrill's home

without a warrant or his consent and used excessive force to

arrest Merrill in violation of his Fourth Amendment rights. In

support of his defense, Granlund asserts that an officer in his

position could reasonably have believed that probable cause

existed to arrest Merrill for assault after Merrill hit him with

the door, which act constituted a misdemeanor committed in

13 Granlund's presence. See

-a (1986); 6

§ 594:10, I(a) (1986). 7 Granlund further argues that Merrill

cannot reasonably contest that probable cause existed to believe

that Granlund had been assaulted because Merrill was later

convicted of simple assault beyond a reasonable doubt based on

the same facts.8 Granlund concludes that a reasonable officer in

his situation could reasonably have understood New Hampshire law

I. A person is guilty of simple assault if h e : (a) Purposely or knowingly causes bodily injury to another; or (b) Recklessly causes bodily injury to another; or (c) Negligently causes bodily injury to another by means of a deadly weapon. I I . Simple assault is a misdemeanor unless committed in a fight entered into by mutual consent, in which case it is a violation.

7 Arrest by a police officer without a warrant is lawful when the officer has probable cause to believe the suspect has committed a misdemeanor in his presence. 8 Merrill argues that his conviction for simple assault can not be used to establish probable cause because, while his appeal was pending, the New Hampshire Supreme Court remanded the case to the district court to consider an assented to motion to annul the conviction under New Hampshire Revised Statutes Annotated § 651:5 (1986). As Merrill has not established that the district court has now annulled his conviction, he is not entitled to the protection offered by § 651:5. See Brown v . Brown,

4 2 , 445 (1990) (discussing effect of annulment under § 651:5). But, in any event, a state's annulment of a conviction will not operate to retroactively negate probable cause if in fact it existed.

14 to authorize him to enter Merrill's house to arrest him because he had probable cause to support the arrest. But Granlund seems to miss the point; he may well have had probable cause to arrest Merrill, but did he have the right to enter Merrill's home to arrest him without a warrant? At the time of the incident in February 1993, the law was clearly established that a warrantless and nonconsensual entry into a suspect's home to arrest him for a misdemeanor absent both probable cause and exigent circumstances was unreasonable, and thus violative of the Fourth Amendment. Hegarty, 53 F.3d at 1373 (citing Welsh v . Wisconsin,

4 0 , 749 (1984) and Payton v . New York,

(1980)). "Probable cause, without more, cannot legitimate a warrantless entry into a suspect's home." Buenrostro v . Collazo,

9 , 43 (1st Cir. 1992). New Hampshire Revised Statutes Annotated § 594:10, I ( a ) , authorizing warrantless arrests for misdemeanors committed in an officer's presence, does not provide an objectively reasonable legal basis to contravene clearly established law that a warrantless and nonconsensual entry into a suspect's home to arrest him, without exigent circumstances, is unconstitutional.9

9 In Malachowski v . City of Keene,

0 4 , 713 (1st Cir. 1986) the court determined that police officers were

15 Although Granlund may be able to demonstrate objectively

reasonable grounds to support probable cause to arrest Merrill,

to invoke qualified immunity he must also establish that exigent

circumstances existed to justify his entering the house. Exigent

circumstances exist when "there is such a compelling necessity

for immediate action as will not brook the delay of obtaining a

warrant." United States v . Wihbey,

6 1 , 766 (1st Cir.

1996) (quotations omitted). Whether an exigency is sufficient to

overcome the presumption against a warrantless and nonconsensual

arrest in a suspect's home is a fact-specific inquiry. United

States v . Tibolt,

(1st Cir. 1995). Exigent

circumstances that can provide an exception to the warrant

entitled to qualified immunity based on § 594:10, I(a) from parents' claims that the police violated the parents' constitutional rights by arresting their daughter in their home without a warrant and without their consent. Id. at 713-14. But the court drew a clear distinction between the parents' claim and a claim by the arrestee: Appellants, again, did not bring the instant action on Amy's behalf or for her benefit; they seek vindication for alleged deprivations of their own constitutional rights. We do not have before u s , therefore, any claim that the manner of Amy's arrest violated Amy's rights under the Fourth Amendment--a matter appellants could not raise--but rather a claim that LaCoste's warrantless, nonconsensual entry into appellants' residence in order to effect the arrest violated appellants' Fourth Amendment rights. Id. at 713.

16 requirement include: "(1) 'hot pursuit' of a fleeing felon; (2)

threatened destruction of evidence inside a residence before a

warrant can be obtained; (3) a risk that the suspect may escape

from the residence undetected; or (4) a threat, posed by a

suspect, to the lives or safety of the public, the police

officers, or to [the suspect] herself." Hegarty, 53 F.3d at

1374; accord McCabe v . Life-Line Ambulance Serv.,

4 0 ,

544-45 (1st C i r . ) , petition for cert. filed,

(May

2 9 , 1996); Tibolt,

.

Granlund, however, makes no effort to argue the existence

of, and offers no evidence to support a finding of exigent

circumstances justifying his decision to break the window in

Merrill's door, to spray Merrill with pepper gas, and then to

break down the door to enter the house to arrest Merrill for a

misdemeanor. Based on the record presented by the defendants,

therefore, the court necessarily concludes at this juncture that

exigent circumstances were not present. A reasonable officer in

Granlund's position should have understood that, absent exigent

circumstances, breaking into Merrill's house without his consent

and without a warrant would violate his Fourth Amendment rights.

As Granlund's entry into the house was objectively unreasonable,

based on the record, qualified immunity also cannot protect

17 Granlund from Merrill's claim that excessive force was used in

making the arrest. C f . Graham v . Connor,

(1989) ("the right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect i t " ) . Accordingly,

summary judgment is denied as to Merrill's claim that the manner

used by Granlund to arrest him on February 2 7 , 1993, violated his

constitutional rights.

Similarly, Granlund's defense that the pepper gas spray did

not constitute common law battery, because it constituted

reasonable force necessary to effect Merrill's arrest, must fail

on the current record.

2. March 3 arrest.

Merrill alleges that Granlund lacked probable cause to

support his application for the warrant he obtained on March 3 to

arrest Merrill for failure to maintain a guest register in

violation of New Hampshire Revised Statutes Annotated § 353:3.

Granlund asserts that he is entitled to qualified immunity

because a reasonable officer in his position could have believed

probable cause to arrest existed.

18 Granlund is entitled to qualified immunity for Merrill's

March 3 arrest unless a reasonably well-trained officer under the

same circumstances should have known that his warrant application

lacked probable cause and that he should not have applied for the

warrant. Malley v . Briggs,

(1986). Officers

are entitled to qualified immunity in seeking arrest warrants on

less than probable cause "so long as the presence of probable is

at least arguable." Rivera v . Murphy,

(1st

Cir. 1992) (quotation omitted). "Probable cause exists if 'the

facts and circumstances within [a police officer's] knowledge and

of which [the officer] had reasonably trustworthy information

[are] sufficient in themselves to warrant a [person] of

reasonable caution' to believe that a crime has been committed or

is being committed." Alexis v . McDonald's Restaurants of Mass.,

Inc.,

4 1 , 351 (1st Cir. 1995) (quoting Carroll v . United

States,

3 2 , 162 (1925)). A probable cause

determination is based on a reasonable probability that the

suspect committed a crime and does not require sufficient

evidence to convict. Rivera,

.

Whether probable cause to arrest exists depends upon the

elements of the offense to be charged. New Hampshire's guest

register statute provides as follows:

19 All hotel keepers and all persons keeping public lodging houses, tourist camps, or cabins shall keep a book or card system and cause each guest to sign therein his own legal name or name by which he is commonly known. Said book or card system shall at all times be open to the inspection of the sheriff or his deputies and to any police officer. The term "public lodging house" as here used shall mean a lodging house where more than 2 rooms are habitually let for less than a week at a time for the accommodation of transients. Whoever violates any provision of this section shall be guilty of a misdemeanor.

. Granlund stated in the warrant

application:

On February 2 7 , 1993 at approximately 10:30 PM, I went to the establishment of MERRILL'S at 60 Follymill Rd. Merrill sub lets multiple units at 60 Follymill Rd. I requested him to open his register as a hotel for my inspection. He refused.

In response, a justice of the peace issued an arrest warrant for

Merrill, and Merrill surrendered to arrest. Based on the record, on March 3 , 1993, when Granlund applied

for the arrest warrant, he knew that Merrill rented rooms to more

than two persons and that he did not keep a guest register.

However, Granlund had no information as to whether Merrill habitually let rooms for less than a week10 and, therefore, had

no reason to think Merrill's boarding house qualified as a

10 Although Merrill asserts in his objection to summary judgment that Granlund knew Pinkham rented week to week, he fails to support his statement with a reference to the record.

20 "public lodging house" within the meaning of § 353:3. That question was the crux of the dispute between Granlund and Merrill on February 27 when Merrill requested police intervention and Granlund refused on the grounds that Merrill was not a hotel keeper entitled to police assistance in ejecting guests. See

-c (1995). Granlund's inquiry to the clerk of the Hampton District Court confirmed his opinion that Merrill was likely a landlord and not a hotel keeper. According to the record presented here, Granlund acquired no additional information in the meantime to change his initial opinion. As a result, a reasonably competent officer in Granlund's position could not have reasonably believed that Merrill was a hotel keeper operating in violation of § 353:3. Thus, the existence of probable cause to arrest on that charge would not have been even arguable. Because Granlund lacked an objectively reasonable basis to believe that Merrill had violated the guest register statute, he is not entitled to qualified immunity, on this record.

C. Municipal Liability

21 Merrill brings claims against the Town of Seabrook and the

police department alleging that Granlund's actions were caused by

the town or police department policy or custom and by inadequate

supervision and training.11 In moving for summary judgment, the

defendants do not contest Merrill's allegations of municipal

policy and inadequate training. Instead, the defendants

challenge Merrill's municipal claims only on grounds that if

Granlund is entitled to qualified immunity from Merrill's claims,

the required causal connection between a municipal policy or

practice and violation of Merrill's constitutional rights is

missing. Even if Granlund were entitled to qualified immunity,

however, Merrill's claims of municipal liability would not

necessarily fail.

Municipalities are not entitled to the protection of either

absolute or qualified immunity from suit under § 1983.

Leatherman v . Tarrant County Narcotics Intelligence &

Coordination Unit,

(1993). Because the

11 The claim against Granlund in his official capacity, in effect, is a suit against Seabrook. See, e.g., Kentucky v . Graham,

(1985) ("Official-capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent.'") (quoting Monell v . New York City Dep't of Social Servs.,

5 8 , 690 n.55 (1978)).

22 qualified immunity analysis does not necessarily determine

whether a constitutional violation occurred, "a municipality

might in rare cases be liable for a constitutional violation,

even though the individual who acted for it was protected by

qualified immunity." Walker v . Waltham Housing Authority,

(1st Cir. 1995); see also, e.g., Fagan v . City of

Vineland,

(3d Cir. 1994) (discussing

independent municipal liability); Garner v . Memphis Police Dep't,

5 8 , 365 (6th Cir. 1993) ("a municipality may not escape

liability for a § 1983 violation merely because the officer who

committed the violation is entitled to qualified immunity"),

cert. denied,

(1994).

Summary judgment is therefore denied on Merrill's claims of

municipal liability, given the only grounds advanced by the town.

D. Defamation

Officer Currier asserts that his statements to newspaper reporters about the February 27 incident,12 which Merrill alleges

12 In particular, Merrill challenges statements, attributed to Currier, in three newspaper articles to the effect that a tenant of Merrill's "told officials Merrill had turned off the heat to his residence and had locked him out," "Saturday's tenant/landlord incident was perhaps one of the most violent in recent history," and "I've never heard of anyone locking someone

23 were false and defamatory, are protected by privilege. New

Hampshire recognizes a conditional privilege to make statements

"'if the facts, although untrue, were published on a lawful

occasion, in good faith, for a justifiable purpose, and with a

belief, founded on reasonable grounds, of its truth,' provided

that the statements are not made with actual malice." Simpkins

v . Snow,

(1995) (quoting Chagnon v . Union-

Leader Co.,

(1961), cert. denied,

(1962)).

In response, Merrill raises a factual issue concerning

whether reasonable grounds existed for Currier to believe that

his statements were true. It is undisputed that Currier did not

personally participate in the incident or the arrest, and that he

was not working that night. The newspaper articles based on his

statements were published on March 2 and 3 .

Merrill points to conflicting evidence about the source of

Currier's information. In his affidavit in support of his motion

for summary judgment, Currier states: "I relied upon the

official police report of the incident and/or information

supplied to me by one or more of the police officers who were

else out before this."

24 personally involved in the incident and in Merrill's arrest." However, at Merrill's trial on October 2 6 , 1993, two years before the date of his affidavit, Currier testified that he could not recall how he had gained the information about the incident that he related to the newspaper reporter or whether he had talked with the officers involved in the incident before making the statements referenced in the articles.

Further, according to the defendants, Granlund did not return to duty until March 3 , the day after the first newspaper articles were published, and Granlund's report is dated March 4 , two days after the first newspaper article was published. In addition, the officers who were present during the entire incident, Deshaies, Chase, and Granlund, all deny discussing the matter with Currier before he made statements to the newspapers. Because the source of Currier's information is material to a determination of whether reasonable grounds existed to believe that the information was true, Merrill has established a genuine dispute concerning material facts that precludes summary judgment on Merrill's defamation claim.

25 CONCLUSION

For the foregoing reasons, the defendants' motion for

summary judgment (document n o . 6 ) is granted in part and denied

in part as follows. Summary judgment is granted in favor of the defendants on all claims in Count Five, but is otherwise denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 1 9 , 1996

cc: Kenneth D. Murphy, Esq. R. Matthew Cairns, Esq.

26