Brown v. Greenfield, et a l . CV-00-359-M 03/26/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Julie Brown, m/n/f of Christopher B., Plaintiff

v. Civil No. 00-359-M Opinion No.

Town of Greenfield, New Hampshire Gary Gagnon, and Mitchell Foster, Defendants

O R D E R

Julie Brown, mother of Christopher B., brings this action

seeking compensation for injuries she claims her son suffered

when he was arrested and prosecuted for various relatively minor

criminal offenses. At all times relevant to this proceeding,

plaintiff's son, Christopher, was a minor.

The court previously dismissed count 1 of plaintiff's

complaint, in which she sought damages from two local newspapers

for allegedly violating her son's privacy rights under a state

statute, concluding that the statute did not confer a private

right of action. Brown v. Greenfield.

(D.N.H. March

14, 2001). Subsequently, plaintiff voluntarily moved to withdraw, with prejudice, her claims under

(count 3). Consequently, what remain are plaintiff's four state

law claims against the Town of Greenfield and two of its police

officers: violation of N.H. Rev. Stat. Ann. ("RSA") 169-B:36,

which prohibits the unauthorized disclosure of court records

relating to juveniles (count 2); false imprisonment (count 4);

malicious prosecution (count 5); and abuse of process (count 6).

Background

On September 14, 1999, when he was sixteen years old,

Christopher B. was involved in a public confrontation with a

young woman, during which he shouted at her and called her

derisive, vulgar names. A friend of the young woman came to her

defense, engaging Christopher B. in a fight. When one of the

defendants. Officer Mitchell Foster, arrived at the scene,

Christopher B. fled in a white Mercury Cougar. The responding

officer found the other young man covered with blood. Upon

learning of the incident, the young woman's mother, Patricia

Donovan, contacted the Greenfield Police Department and filed "a

complaint in behalf of my minor child, Nicole Donovan, that on

the date of September 14, 1999, Christopher Brown of Hancock, NH,

2 was present at Belmore Farms when he . . . proceeded to call my

daughter malicious profanity," all of which Donovan asserted was

in violation of RSA 644:2, New Hampshire's criminal statute

prohibiting disorderly conduct. Exhibit H to Defendants'

memorandum (document no. 53).

Officer Foster investigated the matter and, among other

things, obtained statements from several witnesses, including one

from Donovan's daughter. He then met with plaintiff, her son,

and her husband. During that meeting, Christopher admitted that

he used loud, profane language toward Nicole Donovan, engaged in

a fight with another young man, and left the scene, driving an

automobile within 90 days of obtaining his operator's license

without an adult present (conduct prohibited by New Hampshire

law). As a result of Foster's investigation, the witness

statements, and Christopher's own confession, the police

reasonably concluded that there was probable cause to believe

that Christopher violated a state motor vehicle statute, as well

as a local ordinance prohibiting disorderly conduct.1 See

1 Section 3, Chapter 3 of the Town of Greenfield's Town Ordinances provides that it shall be unlawful for any person to engage in disorderly conduct. The ordinance defines disorderly conduct to include, among other things:

3 generally State v. Vandeboaart,

(1994)

("Probable cause to arrest exists when the arresting officer has

sufficient, trustworthy information to warrant a reasonable

person to believe that the arrestee has committed a crime.").

See also Beck v. State of Ohio,

(1964) (holding

that probable cause to arrest exists when "the facts and

circumstances within [the arresting officer's] knowledge and of

which [he] had reasonably trustworthy information were sufficient

to warrant a prudent man in believing that the [arrestee] had

committed or was committing an offense.").

As an alternative to prosecution, Foster offered to place

Christopher in a juvenile diversion program. Both Christopher

and his parents declined. Accordingly, Foster completed three

criminal complaints against Christopher, charging that he: (1)

[E]ngaging in fighting or in violent, tumultuous or threatening behavior in a public place; or

[D]irecting at another person, in a public place, obscene, derisive or offensive words which are likely to provoke a violent reaction on the part of an ordinary person.

Exhibit S to defendant's memorandum. The ordinance then provides that any person "found in violation of this ordinance may be fined not more than $100.00 (one hundred dollars) and/or not more than 20 hours of community services."

4 violated a town ordinance prohibiting the use of offensive words;

(2) violated a town ordinance prohibiting fighting; and (3)

violated RSA 263:14, which prohibits a minor from operating a

motor vehicle unaccompanied by an adult during the first 90 days

following the issuance of his or her drivers' license. See,

e.g.. Exhibit M to defendants' memorandum, criminal complaints

against Christopher B.; Exhibit N, arrest warrant for Christopher

B.

Later, however, defendants learned that Patricia Donovan had

apparently undergone a change of heart and, rather than urging

the police to prosecute Christopher, she withdrew the complaint

she had filed against him. Additionally, her daughter, Nicole

Donovan, refused to testify against Christopher.2

2 Patricia Donovan is apparently well known to the Greenfield Police Department, having been arrested on at least three occasions and having sued the Town (unsuccessfully) several times, including a civil rights action against Chief Gagnon and the Town that was filed in this court. According to Gagnon, prior to September of 1999, he had received more than 160 pages of letters and e-mails from Donovan, as well as copies of additional letters she sent to town selectmen, in which Donovan complained of various actions undertaken by police officers. Plainly, there is some animosity between Donovan and town officials, but exactly why she suddenly chose to withdraw the complaint she filed against Christopher B., or why her daughter refused to cooperate with the police in their efforts to prosecute him for disorderly conduct is entirely unclear.

5 Shortly thereafter. Chief Gagnon dropped the two charges

that alleged Christopher violated the town ordinance. He did,

however, continue to prosecute the motor vehicle charge.

Nevertheless, because the prosecution apparently had difficulty

presenting admissible evidence concerning Christopher's age, the

state trial court concluded that the prosecution failed to

establish one of the essential elements of the charge.

Christopher was, therefore, acquitted. This suit ensued.

Discussion

I. Count 1 - Violation of RSA 169-B:36.

In count two of her complaint, plaintiff says she is

entitled to damages caused by defendants' having unlawfully

released Christopher's name (and the charges lodged against him)

to the local media, allegedly in violation of RSA 169-B:36. By

prior order, the court dismissed plaintiff's related claims

against two local newspaper publishers for alleged violations of

RSA 169-B:37. Specifically, the court concluded that the statute

at issue did not create a private right of action against those

who allegedly violate its provisions. For essentially the same

reasons articulated in that order, the court concludes that RSA

6 169-B:36 does not create a private cause of action for civil

damages. See Brown v. Greenfield,

9 (D.N.H. March 14,

2 001). See also Marquav v. Eno,

(1995).

Moreover, even if the statute did admit of an implied

private right of action against those accused of having violated

its provisions (which it does not), plaintiff has failed to

demonstrate that the circumstances underlying her claims would

place them outside the scope of the statutory exception set forth

in RSA 169-B:32. That exception provides, in relevant part:

This chapter shall not be construed as applying to persons 16 years of age or over who are charged with the violation of a motor vehicle law, . . . . or any town or municipal ordinance which provides for a penalty not exceeding $100 plus the penalty assessment.

RSA 169-B:32. Here, Christopher B. was over 16 years of age at

the time of the incidents giving rise to charges being filed

against him and he was charged with violating a state motor

vehicle statute and a local ordinance that provides for monetary

penalties not exceeding $100. Thus, the statutory exception

7 would certainly seem to apply and, perhaps more importantly,

plaintiff has failed to show that it does not.3

II. Count 4 - False Imprisonment.

While plaintiff appears to concede that there was probable

cause to arrest (and prosecute) Christopher for having violated

the motor vehicle statute, she says Christopher's detention was,

nonetheless, unlawful because defendants lacked probable cause to

arrest him for having violated the town ordinance. A critical

element of that argument is plaintiff's assertion that the town

ordinance is invalid (a point discussed more fully below).

Consequently, says plaintiff, there can never be probable cause

to arrest someone for allegedly violating it. See generally

Plaintiff's memorandum (document no. 55) at 10-11. Even if the

court were to credit that argument, the fact remains that

defendants plainly had probable cause to detain Christopher for

his admitted violation of the state motor vehicle statute. In

3 Plaintiff asserts (without any developed argument or citation to authority) that because the penalty provisions of the town ordinance provide for imposition of up to 20 hours of community service, the ordinance does not fall within the scope of the statutory exception set forth in RSA 169-B:32 (i.e., it provides a penalty that exceeds $100). For the reasons discussed more fully below, the court rejects that argument. fact, defendants applied for and obtained a warrant for

Christopher's arrest, based upon, among other things, his alleged

violation of that statute.4

The New Hampshire Supreme Court has defined false

imprisonment as "the unlawful restraint of an individual's

personal freedom." Welch v. Bergeron,

(1975) .

An essential element of a false imprisonment claim is, therefore,

"the absence of valid legal authority for the restraint imposed."

Because a valid warrant issued for Christopher's arrest,

there can be no viable claim against defendants for false

imprisonment. See, e.g., Lattime v. Town of Seabrook, No. 98-

4 With virtually no legal or factual development, plaintiff asserts that the arrest warrant was invalid. Specifically, plaintiff says that because "Debra Nutting is a friend of Officer Foster," she was not a neutral and detached magistrate. See Plaintiff's memorandum at 16. That argument requires little discussion. See generally Lusbv v. Union Pacific R . C o .,

, 642 (8th Cir. 1993) ("[W]e take this opportunity to remind counsel that 'it is not this court's job to research the law to support an appellant's argument.' When a point is argued but unsupported by citations and authorities, the court might well decide not to trouble itself with independent research, and reject the point on its merits, depending on the nature of the issue.") (citations omitted). It is enough to note that, without more, an unsupported claim that the officer seeking an arrest warrant and the Magistrate issuing the warrant are "friends" is wholly insufficient to support the conclusion that the arrest warrant was invalid.

9 181-M, slip op. at 19 (D.N.H. July 12, 1999) ("Where plaintiff's

arrest was based on probable cause, and more particularly, on a

warrant supported by probable cause, she cannot prevail on her

state law false arrest claim.") (citing Welch v.

.

III. Count 5 - Malicious Prosecution.

Defendants assert that, with regard to plaintiff's malicious

prosecution claim, they are entitled to prosecutorial immunity.

Plaintiff disputes that claim, saying, in essence, that because

the town ordinance under which Christopher was charged is

invalid, and because defendants knew the ordinance was invalid,

they lacked probable cause (and a good faith basis) to charge

Christopher with violating it. That, says plaintiff, is

sufficient to divest defendants of the cloak of prosecutorial

immunity. For the sake of simplicity, the court will assume

(without deciding) that, under the circumstances alleged,

defendants are not entitled to prosecutorial immunity.

Accordingly, the court will turn to a discussion of the essential

elements of plaintiff's malicious prosecution claim.

10 To prevail on a claim of malicious prosecution under New

Hampshire common law, a plaintiff must establish that he or she

"was subjected to a criminal prosecution instituted by the

defendant without probable cause and with malice, and that the

criminal proceeding terminated in his favor." Robinson v. Fimbel

Door C o .,

(1973). Here, there is no dispute

that the charges against Christopher based on the local ordinance

were resolved in his favor, when, in the wake of Donovan's

withdrawal of her complaint and her daughter's refusal to

cooperate with the prosecution. Chief Gagnon decided not to

pursue those charges. Consequently, the court must focus on the

first two elements of plaintiff's malicious prosecution claim:

defendants' alleged lack of probable cause to institute those

proceedings and Gagnon's alleged malice toward Christopher.

With regard to the latter element of her claim, plaintiff

says Gagnon's alleged malice is revealed by the fact that he

pursued the charges against Christopher only after Christopher

and his parents rejected the offer to place him in a juvenile

diversion program. And, as to Gagnon's alleged lack of probable

cause to pursue those charges, plaintiff says that "the Town

11 ordinances are void because the Town has no authority under New

Hampshire law, RSA 31:39 to enact a disorderly [conduct]

statute." Plaintiff's memorandum at 11. Consequently, she

asserts that "there can be no probable cause for it's violation."

Simply stated, plaintiff's evidence and legal argument are

insufficient to forestall summary judgment. Aside from her bald

assertion that Gagnon acted with malice, she offers no evidence

supportive of that claim other than the simple fact that, when

plaintiff rejected the offer to place Christopher in a juvenile

diversion program, Gagnon continued to prosecute the alleged

violations of the local ordinance. Plainly, something more is

necessary to create a genuine issue of material fact as to

Gagnon's subjective motivation in prosecuting Christopher. The

mere fact that a prosecution proceeds forward after a defendant

rejects a plea offer is, standing alone, insufficient to warrant

the conclusion that the prosecutor was motived by malice. To the

contrary, Gagnon's offer to resolve the matter through diversion

rather than prosecution (an entirely discretionary matter) tends

to belie any charge of malice. That Christopher and his parents

12 chose prosecution over diversion may speak to their judgment, but

does not reflect malice by Gagnon.

Plaintiff's assertion that the local ordinance is invalid is

equally unpersuasive. In support of that claim, plaintiff simply

says :

The subject matter of the ordinance enacted by the Town of Greenfield that prohibits conduct classified as disorderly conduct was not authorized by New Hampshire RSA 31:39. Nowhere in New Hampshire law are towns authorized to regulate conduct that involves fighting or the use of obscene words which is what the Town of Greenfield has attempted to do by the enactment of the ordinance.

Plaintiff's memorandum at 10 (emphasis supplied). The court

disagrees. RSA 47:17 specifically authorizes municipalities to

enact bylaws and ordinances that, among other things, are

designed "to prevent any riot, noise, disturbance, or disorderly

assemblages." RSA 47:17 II. That statute further authorizes

municipalities to "restrain and punish . . . all kinds or immoral

and obscene conduct." RSA 47:17 XIII.

Thus, contrary to plaintiff's largely unsupported

assertions, the New Hampshire legislature plainly vested the Town

13 of Greenfield with authority to pass a local ordinance of the

sort challenged here. Whether that ordinance might be invalid

for other reasons (say, for example, overbreadth or inconsistency

with the First Amendment) is not addressed by plaintiff.

Consequently, any such argument is deemed forfeited. See Higgins

v. New Balance Athletic Shoe, Inc.,

(1st Cir.

1999) ("The district court is free to disregard arguments that

are not adequately developed."). See also Kauthar SDN BHD v.

Sternberg,

(7th Cir. 1998) ("It is not the

obligation of this court to research and construct the legal

arguments open to parties, especially when they are represented

by counsel.") (citation omitted).

Simply stated, plaintiff has failed to establish that the

local ordinance under which Christopher was charged is invalid or

otherwise void as an unlawful exercise of the municipal police

power by the Town of Greenfield. Thus, she has failed to support

her claim that defendants lacked probable cause to charge

Christopher with violating that ordinance. Finally, she has

failed to introduce sufficient evidence to permit a rational

14 trier of fact to conclude, by a preponderance, that Gagnon acted

with malice when he pursued those charges against Christopher.

Defendants are probably correct in asserting that they are

entitled to absolute prosecutorial immunity from plaintiff's

malicious prosecution claim. See generally Belcher v. Paine,

(1992). Nevertheless, even if they are not,

because plaintiff failed to present evidence sufficient to create

a genuine issue of material fact as to two essential elements of

her malicious prosecution claim - lack of probable cause and

malice - defendants are entitled to judgment as a matter of law.

IV. Count Six - Abuse of Process.

In Long v. Long,

(1992), the New Hampshire

Supreme Court adopted the definition of abuse of process set

forth in the Restatement (Second) of Torts, section 682: "One who

uses a legal process, whether criminal or civil, against another

primarily to accomplish a purpose for which it is not designed,

is subject to liability to the other for harm caused by the abuse

of process." Long,

(emphasis supplied). Comment

b to that section of the Restatement provides:

15 "Primarily." The significance of this word is that there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant. Thus the entirely justified prosecution of another on a criminal charge, does not become abuse of process merely because the instigator dislikes the accused and enjoys doing him harm.

Restatement (Second) of Torts § 682, cmt. b.

More recently, in Clipper Affiliates v. Checovich,

(1994), the Court described abuse of process as follows:

The tort comprises two essential elements: an ulterior purpose and a wilful act in the use of the process not proper in the regular conduct of the proceeding. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.

(emphasis supplied) (citation and quotation marks

omitted).

16 Because it is somewhat confusing, plaintiff's abuse of

process claim is perhaps best described in her own words:

The Defendants used the criminal process against Christopher B. because he refused to participate in the Juvenile Diversion Program. Assuming arguendo that the Town ordinance is valid, its violation would constitute a misdemeanor because it contained a community service provision. According to the New Hampshire Criminal Code, RSA 629:9 V, a violation outside of the code is defined as an offense in which there is no other penalty provided other than a fine, forfeiture or other civil penalty. The ordinance enacted by the Town of Greenfield imposes twenty (20) hours of community service which places the ordinance outside of the definition of a violation under New Hampshire law, and therefore constitutes a misdemeanor. Since the Town ordinance was a misdemeanor and since Christopher B. was under seventeen (17) years of age at the time of the alleged commission of the offense he was entitled to be treated as a juvenile under RSA 169-B:1, and 169- B:2 VI, and entitled to all the privileges that a juvenile is accorded under New Hampshire law, including, but not limited to, the confidentiality aspects of RSA 169-B:35. -k

Despite the fact that the Defendants had no legal authority to treat Christopher B. as an adult for committing a misdemeanor, they charged him as an adult because he would not participate in the Juvenile Diversion Program. This is a classic case of utilizing a legal process for which it was not intended in an effort to accomplish an ulterior motive.

Plaintiff's memorandum at 14-15.

17 It is, perhaps, worth noting that, contrary to plaintiff's

assertion, nothing in the record suggests that defendants

knowingly charged Christopher "as an adult for committing a

misdemeanor." Plaintiff's memorandum at 15. For example, the

complaints filed against Christopher all bear a check mark in the

box labeled "violation," establishing that defendants thought

(and intended that) the charges leveled against Christopher were,

in fact, violations and not misdemeanors. See Exhibit M to

defendants' memorandum. Moreover, even if plaintiff had shown

that defendants erroneously charged Christopher as an adult, she

has failed to identify exactly what "collateral advantage"

defendants sought to obtain by their conduct, or how they

attempted to "coerce" or "extort" anything of value from him or

them. Instead, she seems to suggest that defendants pursued

those charges in response to Christopher's rejection of the plea

offer. If that is plaintiff's claim, it would not appear to fall

within the scope of "coercion to obtain a collateral advantage,

not properly involved in the proceeding itself." Clipper

Affiliates,

(emphasis supplied). Plainly, the

act of prosecuting an individual after he or she rejects a plea

offer cannot be said to constitute conduct "not properly involved

18 in proceeding itself." Rather, it is typically an entirely

appropriate (and permissible) response to a defendant's decision

not to accept a proffered plea agreement.

Nevertheless, looking beyond those shortcomings in

plaintiff's abuse of process claim, it is clear that the linchpin

to that claim (at least as plaintiff sees it) is her assertion

that the town ordinance pursuant to which Christopher was charged

constitutes a misdemeanor, rather than simply a violation. And,

subsumed within that claim is the assertion that, under New

Hampshire law, any offense that may be punished by the imposition

of community service is necessarily either a misdemeanor or

felony; in plaintiff's view, those convicted of violations cannot

be required to perform community service. Again, the court

disagrees.

The New Hampshire Criminal Code defines a violation as an

offense:

so designated by statute within or outside this code and, except as provided in this paragraph, any offense defined outside of this code for which there is no other penalty provided other than a fine or fine and forfeiture or other civil penalty.

19 RSA 625:9 V. The Code then provides that any person convicted of

a violation, "may be sentenced to conditional or unconditional

discharge, or a fine." RSA 651:2 Ill-a. Finally, the Code

provides that:

A person may be sentenced to a period of conditional discharge if such person is not imprisoned and the court is of the opinion that probationary supervision is unnecessary, but that the defendant's conduct should be according to conditions determined by the court. Such conditions may include: -k

(4) Performance of uncompensated public service as provided in RSA 651:68-70.

RSA 651:2 VI (a). Plainly, then. New Hampshire's Criminal Code

contemplates that violations may be punished by, among other

things, a conditional discharge that includes a community service

component. See, e.g.. RSA 126-K:6 (providing that any minor who

unlawfully possesses tobacco products "shall be guilty of a

violation and shall be punished by a fine not to exceed $100 for

each offense or shall be required to complete up to 20 hours of

community service for each offense, pr both.") (emphasis

supplied).

20 In short, the New Hampshire Criminal Code treats the

imposition of monetary fines and the requirement that an

individual perform uncompensated community service as

substantially similar forms of punishment. And, the fact that a

criminal offense imposes community service as a potential penalty

does not, standing alone, compel the conclusion that the offense

is necessarily either a misdemeanor or felony; violations can be

punished by the imposition of a community service requirement.

Because plaintiff's abuse of process claim (at least as she

has postured it) turns on her assertion that the offenses with

which Christopher was charged are misdemeanors, rather than

violations, and because she has failed to demonstrate the

validity of that assertion, defendants are entitled to summary

judgment as to that claim.

Conclusion

For the reasons set forth above, there are no genuine issues

of material fact and defendants have demonstrated that they are

entitled to judgment as a matter of law as to all claims asserted

against them. Defendants' motion for summary judgment (document

21 no. 51) is, therefore, granted. The Clerk of Court shall enter

judgment in accordance with this order and close the case

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 26, 2002

cc: William E. Aivalikles, Esq. John P. Sherman, Esq.

22