Farrelly v . City of Concord 10-cv-583-LM 10/1/12 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John Farrelly

v. Civil N o . 10-cv-583-LM Opinion N o .

City of Concord, N.H.; Eric J. Pichler; and Walter Carroll

AMENDED ORDER

John Farrelly has sued in eight counts, asserting both

federal and state claims arising out of his arrest by Officer

Eric Pichler of the Concord Police Department, and his

prosecution, in 2009, for violating N.H. Rev. Stat. (“RSA”) §

644:4, I ( f ) , which had been ruled unconstitutional by the New

Hampshire Supreme Court in 2005. Before the court are

Farrelly’s motion to amend his amended complaint and defendants’

motion for summary judgment. Each motion is duly opposed. The

court heard oral argument on defendants’ motion for summary

judgment on July 2 7 , 2012. For the reasons that follow,

Farrelly’s motion to amend is granted, and defendants’ motion

for summary judgment is granted in part and denied in part.

Motion to Amend

Farrelly moves, pursuant to Rule 15(b) of the Federal Rules

of Civil Procedure, to amend his complaint. He seeks to correct

three typographical errors in his factual narrative and to bring

his claims into conformance with the evidence of record and certain arguments that have already been joined by the

defendants in their motion for summary judgment. Specifically,

he seeks to amend Counts I I I , V I I , and VIII. Defendants object,

arguing that the relevant rule of procedure is 16(b) rather than

15(b), and that Farrelly has not established the “good cause”

required by Rule 16(b). Farrelly does not acknowledge the

standard established in Rule 16(b), or attempt to meet i t .

Strictly speaking, he is probably not entitled to amend his

complaint. However, defendants have addressed the relevant

issues raised by Farrelly’s proposed amendments in their motion

for summary judgment and s o , would not be prejudiced if the

court were to allow Farrelly to amend his complaint again.1 For

that reason, Farrelly’s motion to amend is granted. That said,

while the proposed amended complaint, document n o . 40-1, bears

the caption “Amended Complaint,” the court will refer to that

document as “Second Amended Complaint,” to distinguish it from

document n o . 3 2 , which is Farrelly’s first amended complaint.

1 Moreover, even with Farrelly’s proposed amendments, defendants are entitled to summary judgment on all three of the counts Farrelly seeks to amend, as explained below, which further demonstrates the lack of prejudice to defendants.

2 Summary Judgment Standard

“To prevail on summary judgment, the moving party must show

that ‘there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.’” Markel

Am. Ins. C o . v . Diaz-Santiago,

1 , 29 (1st Cir. 2012)

(quoting Fed. R. Civ. P. 56(a)). “The object of summary

judgment is to ‘pierce the boilerplate of the pleadings and

assay the parties’ proof in order to determine whether trial is

actually required.’” Dávila v . Corporación de P.R. para la

Diffusión Pública,

(1st Cir. 2007)

(quoting Acosta v . Ames Dep’t Stores, Inc.,

, 7 (1st

Cir. 2004)). “[T]he court’s task is not to weigh the evidence

and determine the truth of the matter but to determine whether

there is a genuine issue for trial.” Noonan v . Staples, Inc.,

0 , 25 (1st Cir. 2009) (citations and internal

quotation marks omitted).

Background

Unless otherwise indicated, the following facts are

undisputed.2

2 While Farrelly’s memorandum of law includes a section captioned “Statement of Material Facts in Dispute,” his inclusion of immaterial background facts, additional facts not mentioned in defendants’ memorandum, and mixed questions of fact and law diminishes the utility of that statement for the purpose described in LR 7.2(b)(2), which is the identification of genuine disputes of material fact that require a trial.

3 For approximately three years, Farrelly lived with Kerri

Corliss and her young daughter, Hanah. Farrelly and Corliss

broke up in November of 2008. The events giving rise to this

case began with e-mails Farrelly sent to Corliss about three

months later, on February 1 6 , February 18 (three e-mails), and

February 21 of 2009.

In response to Farrelly’s February 16 e-mail, titled “WHY

ARE YOU SO MEAN TO HANAH?”, Corliss e-mailed the following

response:

[S]top contacting me or I will go to the police for blackmail and harassment. My father has already warned you, and has begged me to go to the police!!! Hanah is not your child, and I will [be] and am doing everything to keep you away from her.

Answer, Ex. B (doc. n o . 3 4 - 2 ) , at 4 . Farrelly responded with

three e-mails on February 18 (sent at 6:06, 7:29, and 8:35 p.m.)

in which he expressed his disapproval of Corliss’s new nipple

piercings and his concern over what Hanah would think of them.

The full text of the first e-mail is as follows:

HAPPY 30TH BIRTHDAY A DAY EARLY. I hope you like your new piercings, just wait until Hanah sees them. What were you thinking of??? You are a Mother for God’s sakes.

at 3 . The full text of the second e-mail is as follows:

WHAT EVER KERRI. SO I HEAR EVERYONE AT THE HOSPITAL SAW YOUR NEW NIPPLES PIERCINGS. WHY HAVE YOU TURNED INTO SUCH A TRAMP? S [sic] WHAT IS HANAH GOING TO THINK OF THEM?

at 4 . The full text of the third e-mail is as follows:

4 WHY CONTACT GEORGE WITH REGARDS TO YOUR NIPPLE PIERCINGS? HE JUST CALLED ME TO ASK WHERE I HEARD ALL ABOUT THIS AND I SAID WHAT DIFFERENCE DOES IT MAKE. IT WASN’T GEORGE. WHEN YOU SHOW IT TO AS MANY PEOPLE THAT YOU SHOWED THE PICTURES TO DON’T YOU THINK THAT IT WOULD GET BACK TO M E .

SO NOW I KNOW WHERE THE TAX RETURN IS GOING. DON’T SAVE A DIME. SPEND IT ON CRAZY SHIT. WHAT’S NEXT? A TRAMP STAMP? MORE FALSE ADVERTISING.

NO WONDER YOU MOVED OUT WHEN YOU DID. YOU DIDN’T WANT ANY OF THE TAX MONEY TO BE SPENT ON PAYING YOUR DEBT OFF. DON’T WORRY THOUGH AS I AM STILL THINKING ABOUT A CIVIL CASE TO GET MY MONEY BACK FROM YOU. I HAVE ALL THE CHECKS AND ALL THE CREDIT CARD RECEIPTS. I BET A JUDGE WON’T SEE IT ALL YOUR WAY. AFTER ALL IT ALL BEING A GIFT AS YOU SAY JUST DOESN’T MAKE SENSE. WHO EVER HEARD OF A GIFT FOR A CROWN FOR YOUR TOOTH.

HAVE A[N] AWFUL LIFE AND HOPEFULLY HANAH DOESN’T GROW UP TO BE LIKE YOU.

at 5 .

In the early morning hours of February 2 1 , Farrelly sent

Corliss a relatively long e-mail, titled “HAPPY 30TH YOU LYING

CHEATING HERPES CARRYING JEZEBEL.” Answer, Ex. B (doc. n o . 34-

2 ) , at 1 . In the Jezebel e-mail, Farrelly: (1) called Corliss a

“little slut”; (2) threatened to show up at her birthday party

and announce that she had given him herpes and had stolen

$100,000 from him; and (3) described two incidents of a sexual

nature involving Corliss. See id. at 1-2. In one of those

descriptions, Farrelly wrote about Corliss: “stripp[ing] off

[her] top,” id. at 1 ; “rubb[ing] [her] $6000.00 TITS” in a man’s

face, id.; and then “invit[ing] him to play and suck on

5 them,” id. In the other, he mentioned a man he referred to as

“the love of [Corliss’s] life where [she] told him in front of

everyone” that she wanted to perform an act of oral sex on

him. Id. at 2 .

On the morning of February 2 1 , shortly after she received

the Jezebel e-mail, Corliss went to the Concord Police

Department to complain about Farrelly. She initially spoke with

Lieutenant Walter Carroll, a shift superintendent. L t . Carroll

had Corliss meet with Officer Eric Pichler, who wrote, in his

narrative report: “She told me that she was scared he was going

to show up at her [birthday] party and hurt her or her daughter.

She was very emotional and had tears in her eyes while talking

with me.” Answer, Ex. A (doc. n o . 3 4 - 1 ) , at 2 . At his

deposition, Officer Pichler described his interview with

Corliss:

Q. Now, you said that M s . Corliss didn’t necessarily want you to arrest M r . Farrelly. Did she tell you what she wanted you to do?

A. She told me that she was scared that h e , M r . Farrelly, kept contacting her, that his communications were upsetting her and she felt harassed and wanted the communication to stop. She wanted him out of her life.

Q. Did she say when she was scared what she [was] afraid of? Did she tell you?

A. She told me that there were several instances where M r . Farrelly’s anger, where he got out of control, as she described i t , and she felt that her, that she was in danger of being injured or

6 being hurt. She had mentioned several times that they did get physical, not all the times that that happened were the police involved, but as far as this specific instance her main concern was that she didn’t want it to arise to that level. She felt that if he kept communicating with her and showed up at her party that something might happen and she feared for her safety and the safety of her daughter.

Q. But did M s . Corliss ever verbalize to you any specific concern that she had for M r . Farrelly that he was going to do something specific to her?

A. Not at this time. She didn’t know. She was afraid that something might happen, but she didn’t say that he made any specific threats or else I would have pursued criminal threatening.

Defs.’ Mot. Summ. J., Moskowitz Aff., Ex. 1 , Pichler Dep. (doc.

n o . 3 6 - 3 ) , at 53-54, 5 7 . Officer Pichler also took a written

statement from Corliss that says, in its entirety:

I lived w/ John Farrelly for three years. [O]n Thanksgiving I had to call the police for his aggressive behavior. I moved out the next day. [H]is phone calls and emails to my friends and family have been ongoing. I have asked him to stop several times, he has failed to do s o .

His emails are harassing, and say inappropriate things about m e , my friends and family.

Id. at 4 . In addition to giving a statement, Corliss provided

Officer Pichler with both the e-mails she had received from

Farrelly and e-mails exchanged between Farrelly and her father,

James Cross. It is undisputed that Cross is a retired Concord

police officer.

7 After speaking with Corliss, Officer Pichler consulted with

L t . Carroll. Among other things, the two officers compared

Farrelly’s conduct, as reported by Corliss, to the conduct

prohibited by New Hampshire’s harassment statute, RSA 644:4, as

reported in the 2008-2009 edition of the New Hampshire Criminal

Code Annotated published by LexisNexis. In particular, they

discussed the applicability of RSA 644:4, I(b) and ( f ) . In the

version of the criminal code they were using, under the heading

“Notes to Decisions,” the section on RSA 644:4 includes an

annotation indicating that RSA 644:4, I(f) had been declared

unconstitutional by the New Hampshire Supreme Court in State v .

Pierce,

(2005). Neither officer took notice of the

annotation.

Shortly after noon on February 2 1 , Officer Pichler went to

Farrelly’s residence, to get his side of the story. When

Officer Pichler arrived, accompanied by another officer,

Farrelly said that he knew why the officers were there,

explained that he was intoxicated when he sent the Jezebel e-

mail, and then apologized for sending i t . Farrelly also

admitted that he had received Corliss’s e-mail asking him to

stop contacting her, and “that his language was pretty vulgar in

the e-mails,” Pichler Dep. (doc. n o . 3 6 - 3 ) , at 8 4 . At his

deposition, Officer Pichler testified that when he spoke with

Farrelly, Farrelly did not “say or do anything . . . that

8 suggested he was a threat to M s . Corliss’s safety.”

at 5 0 .

Officer Pichler also testified that he did not determine that

Farrelly “presented a credible present threat to [Corliss’s]

safety.”

at 5 1 .

Officer Pichler then arrested Farrelly, without a warrant,

for criminal harassment. He made a warrantless arrest because

he thought he was permitted to do so by RSA 594:10, I ( b ) , based

on his belief that Farrelly had committed domestic abuse, as

defined in RSA 173-B:1, I , within the previous twelve hours.

At his deposition, Farrelly testified that as the two

officers were escorting him down the stairs of his residence,

Officer Pichler told him: “This is what you get for fucking with

a 30-year veteran of the Concord PD.” Pl.’s O b j . , Farrelly Dep.

(doc. n o . 3 8 - 6 ) , at 4 . Defendants have produced evidence that

Pichler said no such thing, and that he did not learn, until

after this action was filed, that Corliss’s father had once been

a Concord police officer. See Pichler Dep. (doc. n o . 3 6 - 3 ) , at

102-03. The record also includes evidence that L t . Carroll had

worked with Corliss’s father for approximately twenty years, and

that he was acquainted with Corliss herself. See Defs.’ Mot.

Summ. J., Moskowitz Aff., Ex. 2 , Carroll Dep. (doc. n o . 3 6 - 4 ) ,

at 8-12.

Three days after Farrelly was arrested, four criminal

complaints were sworn out against him, three for the e-mails he

9 sent on February 18 and one for the Jezebel e-mail. Officer

Pichler and L t . Carroll worked together to draft the complaints.3

Each complaint charged Farrelly with the offense of harassment,

in violation of RSA 644:4, based on allegations that Farrelly

did

PURPOSELY communicate through e-mail with a purpose to annoy another, to wit, Kerri Corliss, in that the defendant sent Corliss an e-mail after she previously notified him on 02/17/2009 at 0806 not to contact her for any reason or she would call the police, the communication being not for a lawful purpose.

Answer, Ex. D (doc. n o . 3 4 - 4 ) , at 1 . That charge closely tracks

the language of the provision declared unconstitutional

in Pierce, under which “[a] person is guilty of a misdemeanor”

when he or she

[w]ith the purpose to annoy or alarm another, having been previously notified that the recipient does not desire further communication, communicates with such person, when the communication is not for a lawful purpose or constitutionally protected.

RSA 644:4, I ( f ) . The charges against Farrelly were dropped

before trial, due to the unconstitutionality of RSA 644:4, I ( f ) .

3 Officer Pichler has testified that he and L t . Carroll drafted the complaints. See Pichler Dep. (doc. n o . 3 6 - 3 ) , at 1 7 . L t . Carroll has testified that he was not sure who drafted them. See Carroll Dep. (doc. n o . 3 6 - 4 ) , at 30-31. In their memorandum of law, defendants say it is undisputed that the officers drafted the complaints together. See Defs.’ Mem. of Law (doc. n o . 3 6 - 1 ) , at 4-5. Farrelly does not challenge the joint attribution of the charging decision in his Rule 7.2(b)(2) statement of facts. Accordingly, the court takes it as undisputed that both officers drafted the complaints.

10 Farrelly has sued in eight counts. By means of

, he claims that defendants violated his federal

constitutional rights t o : (1) due process (Count I ) ; freedom of

speech (Count I I ) ; and (3) freedom from unreasonable seizure

(Count I I I ) . He also uses § 1983 to bring a claim titled

“Failure to Supervise Prosecutorial Function” against the City

of Concord (Count V I I ) . In addition, Farrelly asserts a claim

under the New Hampshire Constitution (Count V I ) , and claims

under the common law of New Hampshire for: (1) malicious

prosecution (Count I V ) ; (2) false imprisonment (Count V ) ; and

(3) negligence (Count VIII).

Discussion

Defendants move for summary judgment and advance the

following arguments: (1) the entire action is barred by RSA

594:13, because Farrelly’s arrest was lawful, due to the

existence of probable cause to arrest him for violating RSA

644:4, I ( b ) , under which it is a misdemeanor for a person to

“[m]ake[ ] repeated communications at extremely inconvenient

hours or in offensively coarse language with a purpose to annoy

or alarm another”; (2) defendants Pichler and Carroll are

protected by qualified immunity, which entitles them to summary

judgment on Counts I , I I , and III; (3) the City of Concord

11 (“City”) is protected by “municipal immunity,”4 which entitles it

to summary judgment on Counts I , I I , I I I , and VII; (4) all

defendants are protected by statutory immunity,5 which entitles

them to summary judgment on Counts IV, V , V I , and VIII; (5)

Officer Pichler and L t . Carroll are protected by official

immunity, and the City is protected by vicarious official

immunity, which entitles them to summary judgment on Counts IV,

V , V I , and VIII; and (6) the City is protected by discretionary-

function immunity, which entitles it to summary judgment on

Count VIII. Farrelly disagrees, categorically. In the

discussion that follows, the court considers each of Farrelly’s

claims individually, beginning with his federal claims.

A . Federal Claims

Farrelly brings all of his federal claims through the

mechanism of § 1983, under which

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an

4 By “municipal immunity,” defendants refer to several of the rules of law governing the liability of municipalities under § 1983 that are described in Monell v . Department of Social Services,

(1978). 5 By “statutory immunity,” defendants refer to their theory that RSA 507-B:5 provides them with immunity from liability.

12 action at law, suit in equity, or other proper proceeding for redress . . . .

. “To make out a viable cause of action under

section 1983, a plaintiff must allege that the defendants, while

acting under color of state law, deprived him of rights secured

by the Constitution or federal law.” Rojas-Velázquez v .

Figueroa-Sancha,

(2012) (citing Santiago v .

Puerto Rico,

1 , 68 (1st Cir. 2011)). While § 1983

permits claims against individuals “acting under color of state

law,” Rojas-Velásquez,

, “a local government may

not be sued under § 1983 for an injury inflicted solely by its

employees or agents.” Monell v . Dep’t of Soc. Servs.,

(1978). “Instead, it is when execution of a

government’s policy or custom . . . inflicts the injury that the

government entity is responsible under § 1983.” Id.

1 . Count I : Due Process

Without specifying the particular defendant(s) to which it

applies, Count I states, in full:

The action of Defendants in arresting the Plaintiff under a criminal statute which had been previously determined to be unconstitutional violated the Plaintiff’s right to the Due Process of Law.

Second Am. Compl. (doc. n o . 40-1) ¶ 3 3 .

Of the three defendants in this case, only one of them,

Officer Pichler, arrested Farrelly. Farrelly does, however,

13 allege that the decision to arrest him was “approved by

Defendant Carroll on behalf of the Concord Police Department,”

Second Am. Compl. ¶ 2 2 , which at least hints at a claim for

supervisory liability against L t . Carroll, see Grajales v . P.R.

Ports Auth.,

0 , 47 (1st Cir. 2012) (describing the

circumstances under which a claim based on supervisory liability

may arise under § 1983) (citing Welch v . Ciampa,

2 7 ,

937 (1st Cir. 2008)). While Farrelly’s complaint and his

memorandum of law are far from clear on this point, and

generally speak of defendants collectively rather than in terms

of individual liability, the court will presume that to the

extent that Counts I , I I , and III assert claims based on

Farrelly’s arrest, his claims against L t . Carroll rest on a

theory of supervisory liability. But see Grajales, 682 F.3d at

47 (explaining, in the context of a § 1983 supervisory liability

claim, that “the case law requires a separate assessment of the

potential liability of each of the defendants”) (citing Rogan v .

Menino,

5 , 77 (1st Cir. 1999)).

Defendants argue that they are entitled to summary judgment

on Count I because: (1) there was probable cause to arrest

Farrelly for violating RSA 644:4, I ( b ) , which renders his arrest

lawful under RSA 594:13; (2) Officer Pichler and L t . Carroll are

entitled to qualified immunity; and (3) the City is entitled to

municipal immunity. Farrelly contends that: (1) the Federal

14 Constitution and the policies behind

trump RSA

594:13; 6 and (2) the defendant officers are not entitled to

qualified immunity.

Defendants’ municipal-immunity argument and Farrelly’s

response to it raise an issue that merits some attention. Under

the rubric of “municipal immunity,” defendants argue that: (1)

the City may not be held vicariously liable for the conduct of

Officer Pichler and L t . Carroll under § 1983; 7 (2) Officer

Pichler and L t . Carroll did not violate Farrelly’s

constitutional rights, which entitles the City to judgment as a 6 The court need not resolve Farrelly’s apparent preemption argument, as there does not appear to be a conflict between RSA 594:13 and federal law. The former provides that “[i]f a lawful cause of arrest exists, the arrest will be lawful even though the officer charged the wrong offense or gave a reason that did not justify the arrest.” RSA 594:13. Under federal law:

the probable cause inquiry is not necessarily based upon the offense actually invoked by the arresting officer but upon whether the facts known at the time of the arrest objectively provided probable cause to arrest. Devenpeck v . Alford,

, [153] (2004). Thus it is irrelevant that the booking officer cited Jones for “intent to rob while armed.” I f , on the facts known to the arresting officers, there was probable cause to believe he was committing another crime, the arrest was valid.

United States v . Jones,

4 , 41 (1st Cir. 2005) (parallel citations omitted). Based on Jones, the court cannot discern any difference between federal and state law on this point. 7 Farrelly disclaims any reliance upon vicarious liability for his federal constitutional claims, see Pl.’s Mem. of Law (doc. n o . 3 8 - 1 ) , at 1 4 , so the court need say nothing more about this aspect of defendant’s theory of “municipal immunity.”

15 matter of law on Farrelly’s Monell claim(s), i.e., claim(s) that

his constitutional rights were violated as a result of the

execution of a municipal policy or custom; and (3) even if

Officer Pichler and L t . Carroll did violate Farrelly’s

constitutional rights, Farrelly has failed to identify a

municipal policy or custom the execution of which caused his

injury. Farrelly responds by arguing that “[i]t is clear from

the officers’ testimony that they were not informed about the

three year old ruling on RSA 644:4(I)(f), or the need to consult

annotations . . . [and] that those failures directly led to

[his] arrest.” Pl.’s Mem. of Law (doc. n o . 3 8 - 1 ) , at 1 4 .

Before addressing the merits of Farrelly’s Monell claim(s), the

court must first determine which count or counts in the second

amended complaint assert a claim or claims for Monell liability.

Plainly, such a claim is stated in Count VII. The City is

the only defendant identified in Count V I I , and the claim stated

therein refers to the City’s policy or custom of failing to

adequately: (1) educate its officers on recent decisions of the

New Hampshire Supreme Court; and (2) train its officers in how

to ascertain the constitutionality of the criminal statutes they

are charged with enforcing. What is less clear is

whether Monell claims are also stated in Counts I-III.

On the one hand, the only fact alleged in those counts is

Farrelly’s arrest; those counts say nothing about any policy or

16 custom instituted or maintained by the City. On the other hand,

each of those counts asserts liability against defendants, not

just Officer Pichler and L t . Carroll. Farrelly’s memorandum of

law in support of his objection to summary judgment includes the

following heading: “Claims Against the City Under

,” which tends to suggest that Farrelly is asserting one or

more Monell claims in addition to the one stated in Count VII.

While the court is mindful that Farrelly is “not entitled to

raise new and unadvertised theories of liability for the first

time in opposition to a motion for summary judgment,” Calvi v .

Knox Cnty.,

2 2 , 431 (1st Cir. 2006) (citing Torres-

Rios v . LPS Labs., Inc.,

1 , 15-16 (1st Cir. 1998)),

the court cannot say that Counts I-III, as sketchy as they are,

do not at least “vaguely insinuate[ ]” Monell claims, see Calvi,

470 F.3d at 430 (affirming district court’s decision to deem

waived claims introduced for the first time in opposition to

summary judgment that were not “articulated, or even vaguely

insinuated in [the plaintiff’s] complaint”). And, in any event,

by mounting a “municipal immunity” defense to Counts I-III,

defendants have demonstrated their understanding that Counts I-

III do assert Monell claims. Accordingly, the court follows

defendants in construing Counts I-III as asserting both claims

against Officer Pichler and L t . Carroll and Monell claims

against the City.

17 That said, further discussion of Count I is warranted. It

is based on a single act, Pichler’s arresting Farrelly “under a

criminal statute which had been previously determined to be

unconstitutional.” Second Am. Compl. (doc. n o . 40-1) ¶ 3 3 .

According to Farrelly, the arrest violated his right to due

process. See id. Given the factual allegations on which it is

based, Count I cannot be understood as anything other than a

claim for false arrest. Ordinarily, a false-arrest claim

brought pursuant to

asserts a violation of the

plaintiff’s rights under the Fourth

Amendment. See, e.g., Collins v . Univ. of N.H.,

, 14

(1st Cir. 2011); see also Acosta,

. Indeed,

Farrelly himself asserts a Fourth Amendment false-arrest claim

in Count III.

S o , the question becomes whether an allegedly false arrest

can also support a claim under the Due Process Clause. In his

objection to summary judgment, Farrelly cites Cook v .

Sheldon,

(2d Cir. 1994), for the proposition that “it

was a violation of [his] right to procedural due process to

arrest him for vindictive reasons on an invalid charge,” Pl.’s

Mem. of Law (doc. n o . 3 8 - 1 ) , at 9. But, the purported due-

process violation in Cook did not involve the plaintiff’s

18 arrest.

Rather, the court of appeals in Cook held that

“[p]rocedural due process forbids the use of legal process for a

wrongful purpose,” Cook,

(citing Torres v .

Super. of Police,

0 4 , 410 (1st Cir. 1990)) (emphasis

added), and drew the elements of the due-process claim from the

state-law tort of malicious abuse of process, see Cook,

(citations omitted). As for what constitutes legal

process, the defendants in Cook “clearly employed criminal

process against Cook by having him arraigned on charges of

illegal possession of a car with no VIN.” Id.; c f . Harrington

v . City of Nashua,

4 , 32 (1st Cir. 2010) (explaining

that warrantless arrest is not legal process for purposes of

Fourth Amendment malicious-prosecution claim). Here, Count I

alleges an arrest under an unconstitutional statute, but makes

no allegations concerning the initiation of criminal proceedings

or any other use of legal process.

Based on the foregoing, two things are clear about Count I :

(1) Farrelly has identified no authority for the proposition

that a false arrest may serve as the factual basis for a due-

process claim; and (2) he has alleged no facts to support a

8 The plaintiff in Cook did assert a claim based on his allegation of a false arrest, but that claim, like Count III in this case, was pled as a violation of the plaintiff’s rights under the Fourth Amendment. See

.

19 claim for malicious prosecution or abuse of process. Count I ,

therefore, does not even state a claim on which relief can be

granted, see United Auto. Workers of Am. Int’l Union v . Fortuño,

7 , 40 (1st Cir. 2011). Thus, Officer Pichler and L t .

Carroll are entitled to judgment as a matter of law on Count I .

And, because the individual defendants are entitled to judgment

as a matter of law, s o , too, is the City entitled to judgment as

a matter of law on Farrelly’s Count I Monell claim. See City of

L.A. v . Heller,

(1986) (“If a person has

suffered no constitutional injury at the hands of the individual

police officer[s], the fact that the departmental regulations

may have authorized the use of constitutionally excessive force

is beside the point”).

Finally, the court notes that even if it were to construe

Count I as asserting a due-process claim based not on false

arrest but on malicious prosecution or abuse of process, such

claims would fail as a matter of law. It is well established in

this circuit “the Due Process Clause cannot serve to ground [a]

federal malicious prosecution claim,” Nieves v . McSweeney,

6 , 53 (1st Cir. 2001), and “the First Circuit does not

recognize § 1983 claims based upon an alleged abuse of

process,” Boyle v . Barnstable Police Dep’t,

8 4 ,

316 (D. Mass. 2011) (citing Faust v . Coakley, Civ. Action N o .

07-11209-RWZ,

, at *4 (D. Mass. Jan. 8 ,

20 2008)); see also Santiago v . Fenton,

(1st Cir.

1989).

21 2 . Count I I : First Amendment Freedom of Speech

Without specifying the particular defendant(s) to which it

applies, Count II states, in full:

The action of Defendants in arresting Plaintiff for criminal harassment arising out of Plaintiff’s e-mail communication with his former girlfriend violated his right to freedom of speech.

Second Am. Compl. (doc. n o . 40-1) ¶ 3 4 . In the memorandum of

law in support of his objection to summary judgment, Farrelly

offers further clarification of his First Amendment claim:

Defendants’ attempt to convert this case into a mistake over which section of the Criminal Harassment statute was utilized fails because the arrest of the Plaintiff under either (b) or (f) of that Statute would have violated his First Amendment freedom of speech. On this date, the Supreme Court in the case of U.S. v . Alvarez,

(2012), (plurality opinion), has reaffirmed its prior holdings that “‘as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ Ashcroft v . American Civil Liberties Union,

6 4 , 573 (2002). As a result, the Constitution ‘demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality.’” Ashcroft v . American Civil Liberties Union,

(2004). Slip opinion at 4 .

In its opinion, the Court made clear that content-based restrictions on speech, even false speech, are only permitted in a few “‘historic and traditional categories [of expression] long familiar to the bar ..’” Slip opinion at 4-5 (citations omitted). Accordingly it held unconstitutional a federal criminal statute which prohibited false statements about military service.

22 The application of the Criminal Harassment Statute against the Plaintiff in this case was likewise an unconstitutional prior restraint on his freedom of speech. Although his language and ideas were blunt and controversial, and presumably not welcomed by the recipient, they did not fall under any of the exceptions to First Amendment protected speech.

Pl.’s Mem. of Law (doc. n o . 3 8 - 1 ) , at 7-8.

Defendants argue that they are entitled to summary judgment

on Count II because: (1) there was probable cause for Farrelly’s

arrest, which renders the arrest lawful under RSA 594:13; (2)

Officer Pichler and L t . Carroll are entitled to qualified

immunity; and (3) the City is entitled to municipal immunity

from Farrelly’s Monell claim. Farrelly contends that: (1) the

Federal Constitution and the policies behind

trump RSA 594:13; (2) the defendant officers are not entitled to

qualified immunity; and (3) with respect to the Monell claim in

Count I I , the deposition testimony of Officer Pichler and L t .

Carroll demonstrates the inadequacy of the training they were

provided by the City. Defendants are entitled to the immunities

they claim.

a. Qualified Immunity

Defendants argue that Officer Pichler and L t . Carroll are

entitled to qualified immunity because: (1) the facts Farrelly

“allege[s] do not make out a violation of a constitutional

right,” Defs.’ Mem. of Law (doc. n o . 3 6 - 1 ) , at 9; (2) “the law

is not clear that the decision to arrest a suspect for

23 harassment can violate a person’s due process, freedom of

speech, or Fourth Amendment rights,”

at 1 1 ; and (3)

“Defendants Pichler and Carroll . . . could not have understood

that their actions would violate Plaintiff’s constitutional

rights,”

. Farrelly contends that Officer Pichler and

L t . Carroll are not entitled to qualified immunity because the

unconstitutionality of RSA 644:4, I(f) was clearly established

by the New Hampshire Supreme Court’s decision in Pierce. While

Farrelly argues that “an arrest under section (b) [of RSA 644:4,

I ] would have resulted in the same free speech violation as an

arrest under Subsection (f),” Pl.’s Mem. of Law (doc. n o . 3 8 - 1 ) ,

at 11-12, he does not say how it was clearly established that an

arrest under RSA 644:4, I(b) would have violated his

constitutional rights, nor does he make any argument that a

reasonable police officer would have known that such an arrest

would have violated his constitutional rights. The court begins

by outlining the relevant legal principles and then applies

those principles to the facts of this case.

“[P]ublic officials [are entitled] to qualified immunity

from personal liability arising out of actions taken in the

exercise of discretionary functions.” Glik v . Cunliffe,

8 , 81 (1st Cir. 2011) (citing Harlow v . Fitzgerald, 457

0 0 , 807 (1982); Barton v . Clancy,

(1st Cir.

2011)). 9 Turning to the mechanics of qualified immunity, courts

apply a two-prong analysis in determining questions of qualified immunity. Maldonado v . Fontanes,

(1st Cir. 2009). These prongs, which may be resolved in any order, Pearson [v. Callahan], 555 U.S. [223,] 236 [(2009)], require [courts to] decide “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if s o , whether the right was ‘clearly established’ at the time of the defendant’s alleged violation,” Maldonado,

.

Glik,

(parallel citations omitted). “When a

defendant moves for summary judgment on grounds of qualified

immunity, the plaintiff bears the burden of showing infringement

of a federal right.” Lopera v . Town of Coventry,

8 8 ,

395-96 (1st Cir. 2011) (citing Quintero de Quintero v . Aponte-

Roque,

(1st Cir. 1992)). Determining whether

a constitutional right was “clearly established” involves

inquiries into “(1) the clarity of the law at the time of the

alleged civil rights violation, and (2) whether, given the facts

of the particular case, a reasonable defendant would have

understood that his conduct violated the plaintiff[’s]

constitutional rights.” Glik,

(quoting Barton,

9 In Glik, the court of appeals held that the police officers who arrested the plaintiff for video recording their arrest of a third person were not entitled to qualified immunity because “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

5 .

25

2 ; citing Maldonado,

) (internal

quotation marks omitted).

The doctrine of qualified immunity “protects all state

actors except ‘the plainly incompetent [and] those who knowingly

violate the law.’” Haley v . City of Boston,

9 , 47

(1st Cir. 2011) (quoting Malley v . Briggs,

(1986)). 10 Qualified immunity does not, however, “shield public

officials who, from an objective standpoint, should have known

that their conduct was unlawful.” Haley, 657 F.3d at 47

(quoting Pagán v . Calderón,

6 , 31 (1st Cir. 2006);

citing Davis v . Scherer,

(1984)).

The crux of Count II is Farrelly’s claim that defendants

violated his First Amendment right to free speech by arresting

him for sending three e-mails to Corliss on February 18 and one

more e-mail on February 2 1 , 2009. Rather than undertaking the

complex legal analysis necessary to decide whether Farrelly has

made out a First Amendment violation, the court assumes, without

deciding, that Farrelly had a constitutional right to send the 10 In Haley, the court of appeals held that: (1) the defendant police officers were entitled to qualified immunity from a due-process claim based on their failure to disclose certain evidence, because at the time of their actions, it was not clearly established that police officers, as opposed to prosecutors, had disclosure obligations under Brady v . Maryland,

(1963), see Haley, 657 F.3d at 47-49; and (2) the officers were not entitled to qualified immunity from a due- process claim based on allegations that they “intentionally conceal[ed] evidence and permit[ed] false testimony to be given at a defendant’s trial,” id. at 4 9 .

26 e-mails at issue, that Officer Pichler violated Farrelly’s right

to free speech by arresting him for sending them, and that L t .

Carroll violated that same right by approving Farrelly’s arrest.

Even s o , the officers are entitled to qualified immunity because

Farrelly’s right to send the e-mails in question was not clearly

established at the time of his arrest.

As noted above, when determining whether a right is clearly

established, for purposes of qualified immunity, the court

“must consider two subsidiary issues: (a) the clarity of the law

in general at the time of the alleged violation; and (b) the

clarity of the law as applied to the case – in other words,

whether a reasonable person in the defendant’s shoes ‘would have

understood that his conduct violated the plaintiff[’s]

constitutional rights.’” Raiche v . Pietroski,

0 , 38

(1st Cir. 2010) (quoting Maldonado,

6 9 ) . With

regard to the first consideration, “[t]o determine whether the

law is clear in general, [courts] must define ‘the right

allegedly violated . . . at the appropriate level of

specificity.’” Raiche,

(quoting Wilson v . Layne,

(1999)). With regard to the second

consideration:

A finding of qualified immunity is warranted if “a reasonable officer could have believed his conduct was lawful.” Olmeda v . Ortíz–Quiñonez,

2 , 65 (1st Cir. 2006). Such a finding is not warranted if “no reasonable officer could believe” that his conduct

27 was lawful. Groh v . Ramirez,

5 1 , 564 (2004). Put another way, immunity will issue when “officers of reasonable competence could disagree” on the lawfulness of an action, but it will not issue if “it is obvious that no reasonably competent officer would have concluded” that the action was lawful. Malley,

.

Lopera, 640 F.3d at 396 (parallel citations omitted).

Here, at the time of Farrelly’s arrest, he had a right to

free speech guaranteed by the First Amendment. But that defines

the right too broadly. In Wilson, for example, the Supreme

Court rejected the petitioner’ assertion “that any violation of

the Fourth Amendment is ‘clearly established,’ since it is

clearly established that the protections of the Fourth Amendment

apply to the actions of police.”

. Rather, the

court determined that “the appropriate question [in that case

was] the objective inquiry whether a reasonable officer could

have believed that bringing members of the media into a home

during the execution of an arrest warrant was lawful, in light

of clearly established law and the information the officers

possessed.” Id.; see also Raiche,

(“[T]he

question may be defined specifically as whether prior existing

case law or general Fourth Amendment principles gave Pietroski

notice that it is unconstitutional for a police officer to exert

against a person the considerable force used in this

incident.”). Here, the right at issue is not the right to free

28 speech, but the right to send the specific e-mails that formed

the basis for Farrelly’s arrest.

To the extent that those e-mails were communications by

Farrelly with a person who had notified him of her desire to

receive no further communication from him, sent with the purpose

to annoy or alarm, and without a lawful purpose or

constitutional protection, see RSA 644:4, I ( f ) , Farrelly’s right

to engage in such conduct was clearly established by the First

Amendment and the New Hampshire Supreme Court’s decision in

Pierce. Indeed, if RSA 644:4, I , proscribed only the conduct

described in section I ( f ) , then an arrest for harassment would

have violated a clearly established right, and the officers’

entitlement to qualified immunity would rise or fall on whether

a reasonable officer could have believed that he or she could

arrest Farrelly for sending the e-mails in question without

violating his constitutional rights.

But, the harassment statute also prohibits “repeated

communications . . . in offensively coarse language with a

purpose to annoy or alarm another.” RSA 644:4, I ( b ) .

Farrelly’s right to engage in that kind of conduct was not

clearly established at the time he was arrested. To the

contrary, such conduct was, obviously, prohibited by statute.

Moreover, in response to an overbreadth challenge similar to the

one that was successful in Pierce, the New Hampshire Supreme

29 Court upheld RSA 644:4, I(b) as constitutional. See State v .

Gubitosi,

2 0 , 728 (2008). In light of Gubitosi, a

reasonable officer could have believed that RSA 644:4, I(b) was

constitutional.11 Given the state of the law, the dispositive

question is whether a reasonable officer could have believed

that Farrelly engaged in conduct prohibited by that statute.

See Lopera, 640 F.3d at 396. The court answers that question in

the affirmative.

The court begins by noting that the statute is not

especially precise, and does not define the terms “repeated

communications” or “offensively coarse language.”12 With regard

to the “repeated communications” element, a reasonable officer

could conclude that four e-mails sent over the course of two and

one half days, including three e-mails sent over the course of

two and one half hours, were repeated communications. With 11 That is a bit of an understatement; it is difficult to see how a reasonable officer could conclude that RSA 644:4, I(b) was not constitutional. 12 The statute might even be vulnerable to a “void-for- vagueness” challenge. See Butler v . O’Brien,

1 4 , 518 (1st Cir. 2011) (“Under the Constitution, ‘a criminal statute must give fair warning of the conduct that it makes a crime.’”) (quoting Bouie v . City of Columbia,

4 7 , 350 (1964)); but see State v . Koetting,

2 2 , 824-26 (Mo. 1981) (upholding, as not unconstitutionally vague, statute proscribing use of “coarse language offensive to one of average sensibility”). In any event, the defendant officers cannot be denied qualified immunity for declining to anticipate a successful legal challenge to a statute they are charged with enforcing when that statute had been ruled constitutional by the state’s highest court.

30 regard to the “offensively coarse language” element, in the

second of the February 18 e-mails, Farrelly accused Corliss of

turning into a “tramp,” Answer, Ex. B . (doc. n o . 3 4 - 2 ) , at 4 ,

and in the third one, he accused her of spending her tax return

on “crazy shit,”

at 5 . Then, in the February 21 Jezebel e-

mail, Farrelly called Corliss a “little slut,” and, among other

things, referred to her “$6,000 TITS.”

at 1 . Again, a

reasonable officer could conclude that the foregoing language,

drawn from three of Farrelly’s e-mails, was offensively coarse.

Next, a reasonable officer could infer a purpose to annoy

from: (1) Farrelly’s assertion that he had heard that everyone

at Corliss’s place of employment had seen her new nipple

piercings,

at 4 ; (2) his rhetorical question: “WHY HAVE YOU

TURNED INTO SUCH A TRAMP?”, id.; (3) his rhetorical question:

“WHAT’S NEXT? A TRAMP STAMP? MORE FALSE ADVERTISING.”,

at

5 ; (4) the concluding line in the third February 18 e-mail:

“HAVE A[N] AWFUL LIFE AND HOPEFULLY HANAH DOESN’T GROW UP TO BE

LIKE YOU”, id.; and (5) the caption of the February 21 e-mail:

“HAPPY 30TH YOU LYING CHEATING HERPES CARRYING JEZEBEL,” id. at

1. While Farrelly has submitted an affidavit in which he states

that when sending Corliss the four e-mails, his “intention was

not to annoy or alarm her,” Pl.’s O b j . , Farrelly Aff. (doc.

n o . 38-3) ¶ 4 , what he now says about his intentions, several

years after the fact, has no bearing on the reasonableness of

31 the officers’ determination, in 2009, that Farrelly sent the e-

mails at issue with an intent to annoy Corliss. In sum, a

reasonable officer could have believed it was lawful to arrest

Farrelly for sending those four e-mails.

To conclude, qualified immunity is intended to protect all

but “the plainly incompetent [and] those who knowingly violate

the law.” Haley, 657 F.3d at 4 7 . Here, it cannot reasonably be

argued that the officers knowingly violated Farrelly’s First

Amendment rights by arresting him for sending the four e-mails

at issue or by approving the arrest. Similarly, while the

officers may have erred in determining that the conduct for

which Officer Pichler arrested Farrelly was criminal, rather

than protected by the First Amendment, it cannot reasonably be

argued that it was plainly incompetent for the officers to make

that determination. Thus, Officer Pichler and L t . Carroll are

entitled to qualified immunity from Farrelly’s First Amendment

claim.

b . “Municipal Immunity”

While the defendant officers are entitled to qualified

immunity, that does not protect the City from liability on

Farrelly’s Monell claim because “it is not impossible for a

municipality to be held liable for the actions of lower-level

officers who are themselves entitled to qualified immunity”

Estate of Bennett v . Wainwright,

(1st Cir.

32 2008), abrogated on other grounds by Maldonado,

,

(quoting Joyce v . Town of Tewksbury,

9 , 23 (1st Cir.

1997); citing Walker v . Waltham Hous. Auth.,

(1st Cir. 1995)); see also Kennedy v . Town of Billerica,

2 0 , 536 (1st Cir. 2010) (“the Town may be liable [on a

Monell claim] even if individual officers are ultimately

exonerated, for instance because the officers are granted

qualified immunity”). Defendants argue that the City is

entitled to judgment as a matter of law on Farrelly’s First

Amendment Monell claim because Officer Pichler and L t . Carroll

did not violate Farrelly’s rights under the First Amendment and

because, even if they had, Farrelly has not identified any

municipal policy or custom that caused the First Amendment

violation he claims. While the lack of an underlying

constitutional violation will scuttle a Monell claim,

see Heller,

, it has not been established that

Officer Pichler and L t . Carroll did not violate Farrelly’s

rights under the First Amendment. Accordingly, defendants’

first argument fails.

With regard to defendants’ second argument, it is somewhat

inaccurate to say that Farrelly has not identified a municipal

policy or custom that caused his injury. In paragraph 31 of his

second amended complaint, he alleges that the City “failed to

conduct adequate training and procedures to insure that its

33 police officers only enforced laws currently in effect.” Second

Am. Compl. (doc. n o . 40-1) ¶ 3 1 . That allegation is echoed in

Counts VII and VIII. Farrelly, however, makes no allegation

concerning any training, or lack thereof, directed toward the

application laws that were currently in effect, such as RSA

644:4, I ( b ) .

Farrelly does not allege a policy or custom of encouraging

the arrest of people for lawfully exercising their First

Amendment rights. Such an allegation, however, is not necessary

to state a Monell claim; “[i]n limited circumstances, a local

government’s decision not to train certain employees about their

duty to avoid violating citizens’ rights may rise to the level

of an official government policy for purposes of §

1983.” Connick v .

S . C t . 1350, 1359 (2011). But,

as the Connick Court explained, “[a] municipality’s culpability

for a deprivation of rights is at its most tenuous where a claim

turns on a failure to train.”

(citing Oklahoma City v .

Tuttle,

0 8 , 822-23 (1985) (plurality opinion). Thus,

[t]o satisfy the statute [i.e., § 1983], a municipality’s failure to train its employees in a relevant respect must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” [City of] Canton [v. Harris], 489 U.S. [378,] 388 [(1989)]. Only then “can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” Id., at 389.

Connick, 131 S . C t . at 1359-60 (parallel citations omitted).

34 “Deliberate indifference is a stringent standard of fault,

requiring proof that a municipal actor disregarded a known or

obvious consequence of his action.” Connick, 131 S . C t . at 1360

(quoting Bd. of Cnty. Comm’rs v . Brown,

9 7 , 410

(1997)) (internal quotation marks and brackets omitted).

Accordingly,

to state a claim for municipal liability, a plaintiff must plead more than mere insufficiency of a municipality’s training program. “[A] training program must be quite deficient in order for the deliberate indifference standard to be met: the fact that training is imperfect or not in the precise form a plaintiff would prefer is insufficient to make such a showing.”

Marrero-Rodríguez v . Mun’y of San Juan,

9 7 , 503 (1st

Cir. 2012) (quoting Young v . City of Providence ex rel.

Napolitano,

, 27 (1st Cir. 2005)). In sum, “a

plaintiff who brings a section 1983 action against a

municipality bears the burden of showing that, through its

deliberate conduct, the municipality was the moving force behind

the injury alleged.” Haley, 657 F.3d at 51 (quoting Brown, 520

U.S. at 404; citing Monell,

) (internal quotation

marks omitted) (emphasis in Brown).

Regarding the ways in which deliberate indifference may be

established, “[a] pattern of similar constitutional violations

by untrained employees is ‘ordinarily necessary’ to demonstrate

deliberate indifference for purposes of failure to

35 train.” Connick, 131 S . C t . at 1360 (quoting Brown, 520 U.S. at

409). However, “in a narrow range of circumstances,” Connick,

131 S . C t . at 1361 (quoting Brown, 520 U.S. at 409) (emphasis

added), “the unconstitutional consequences of failing to train

could be so patently obvious that a city could be liable under §

1983 without proof of a pre-existing pattern of

violations.” Connick, 131 S . C t . at 1361. In Canton, the

Supreme Court hypothesized that a pattern of constitutional

violations might not be necessary where a municipality provided

its police officers with firearms but failed to train them on

the constitutional limitations on the use of deadly force.

See Connick, 131 S . C t . at 1361. But, in Connick, the Court

held that “[f]ailure to train prosecutors in their Brady

obligations does not fall within the narrow range of Canton’s

hypothesized single-incident liability.” Id. The circumstances

of this case fall closer to the actual situation in Connick than

to the hypothetical posited in Canton.

There are several problems with the Monell claim Farrelly

asserts in Count I I . The first is a logical problem. The only

training deficiency Farrelly alleges is the City’s failure “to

conduct adequate training and procedures to ensure that its

police officers only enforced laws currently in effect.” Second

Am. Compl. § 3 1 . If Farrelly’s First Amendment claim were based

exclusively on the unconstitutionality of arresting him for

36 violating RSA 644:4, I ( f ) , then the training he says the City

should have provided its officers may have prevented his arrest.

But Farrelly was arrested for sending Corliss four specific e-

mails, which conduct implicated both RSA 644:4, I(f) and RSA

644:4, I ( b ) . Thus, even if the City had provided all the

training Farrelly says it should have, and Officer Pichler and

L t . Carroll had been informed that RSA 644:4, I(f) was

unenforceable as a result of the Pierce decision, that training

would have done nothing to prevent the officers from basing a

decision to arrest him on RSA 644:4, I ( b ) .

Beyond that, Farrelly’s second amended complaint does not

appear to adequately state a failure-to-train claim. Nowhere

does the complaint identify a pattern of constitutional

violations similar to the one he says he suffered. See Connick,

131 S . C t . at 1360. Moreover, the complaint includes no

allegations about what City officials knew, or should have

known, about the alleged inadequacy of the training the City

provided its police officers, nor does it allege that any City

official consciously chose not to implement training he or she

knew or should have known to be necessary. Then, in the face of

defendants’ argument that he “failed to present a trialworthy

issue that the City’s policies reflect a deliberate indifference

to constitutional rights,” Defs.’ Mem. of Law (doc. n o . 3 6 - 1 ) ,

at 1 4 , Farrelly has produced no evidence of any sort on that

37 issue. Rather, he merely points to deposition testimony from

Officer Pichler and L t . Carroll in which they stated that they

had not been taught about the Pierce decision or the need to

consult the annotations that appear in the criminal code.

Farrelly’s failure to allege a pattern of similar

constitutional violations would not be fatal to his claim if

“the unconstitutional consequences of failing to train [were]

patently obvious.” Connick, 131 S . C t . at 1361. But, the

exception allowing for single-incident liability on failure-to-

train claims is a narrow one, see id., and is inapplicable to

the circumstances of this case. Arrests in violation of the

First Amendment were not a patently obvious result of the way

the City taught its police officers about the Pierce decision

for at least two reasons.

First, the constitutionality of Farrelly’s arrest, under

the First Amendment, does not depend on the constitutionality of

RSA 644:4, I ( f ) . His arrest violated the First Amendment only

if RSA 644:4, I(b) was also unconstitutional, either on its face

or as applied to him, and Farrelly makes no allegations, and has

produced no evidence, concerning the adequacy of the training

the City provided its officers with regard to the enforcement of

RSA 644:4, I ( b ) . Second, while Officer Pichler and L t . Carroll

may not have been given training in how to read the edition of

the criminal code they were issued, they were issued a copy of

38 the criminal code, which contained information on the Pierce

decision, and their failure to find the Pierce annotation was

hardly a foregone conclusion. But, more importantly, an arrest

in violation of the First Amendment was not a necessary

consequence of the officers’ failure to find the Pierce

annotation in their copy of the criminal code, given the

availability and applicability of RSA 644:4, I ( b ) . Accordingly,

the failure-to-train claim Farrelly asserts does not fit within

the narrow exception for claims in which a municipality’s

deliberate indifference may be proven without a pattern of

constitutional violations.

c. Summary

Officer Pichler and L t . Carroll are entitled to qualified

immunity from Farrelly’s First Amendment claim. Moreover,

Farrelly has neither adequately alleged a Monell claim based on

inadequate training nor produced evidence to create a triable

issue on such claim. Accordingly, all three defendants are

entitled to judgment as a matter of law on Count I I .

3 . Count III: Unreasonable Search and Seizure

Without specifying the particular defendant(s) to which it

applies, Count III states, in full:

The action of Defendants in arresting Plaintiff without a warrant under a statute which had been previously determined to be unconstitutional violated

39 the Plaintiff’s right against unreasonable search and seizure.

Second Am. Compl. (doc. n o . 40-1) ¶ 3 5 . In other words, Count

III is a Fourth Amendment false-arrest claim.

As stated in Farrelly’s second amended complaint, Count III

includes three words not present in Count III of the amended

complaint: “without a warrant.” The Fourth Amendment, however,

does not prohibit warrantless searches and seizures; it

prohibits “unreasonable searches and seizures.” U.S. Const.

amend. IV. An arrest is reasonable, and does not violate the

Fourth Amendment, if it is supported by probable cause.

See Collins, 664 F.3d at 1 4 . To be sure, “[t]he Fourth

Amendment protects persons from warrantless arrest inside their

homes or other places where they have a reasonable expectation

of privacy.” United States v . Brown,

7 , 64 (1st Cir.

2007) (citing Payton v . New York,

(1980); United States v . Cruz Jiménez,

, 6 (1st Cir.

1990)). But, even s o , an exception to the warrant requirement

“permits the police to arrest an individual in his home, without

an arrest warrant, as long as they are lawfully on the premises

. . . and probable cause exists.” United States v . Winchenbach,

4 8 , 553 (1st Cir. 1999) (citing Mahlberg v . Mentzer,

7 2 , 775 (8th Cir. 1992); United States v . Houston,

(8th Cir. 1989); Jones v . City of Denver, 854

, 1209 (10th Cir. 1988)). Because Farrelly has neither

alleged that Officer Pichler was unlawfully on his premises nor

produced any evidence to that effect,13 both of Farrelly’s

theories of Fourth Amendment liability, i.e., arrest without a

warrant and arrest under an unconstitutional statute, turn on

the existence of probable cause for his arrest.14

Defendants argue that they are entitled to summary judgment

on Count III because: (1) there was probable cause for

Farrelly’s arrest, which renders the arrest lawful under RSA

594:13; (2) Officer Pichler and L t . Carroll are entitled to

qualified immunity; and (3) the City is entitled to municipal

immunity from Farrelly’s Monell claim. Farrelly contends that:

(1) the Federal Constitution and the policies behind

trump RSA 594:13; (2) the defendant officers are not

entitled to qualified immunity; and (3) the deposition testimony

of Officer Pichler and L t . Carroll demonstrates the inadequacy

of the training they were provided by the City. As with Count

I I , defendants are entitled to the immunities they claim.

13 Defendants have, in fact, produced uncontroverted evidence that Officer Pichler entered Farrelly’s residence with consent, see Pichler Dep. (doc. n o . 3 6 - 3 ) , at 8 1 , which made Officer Pichler’s presence in Farrelly’s home lawful. 14 Under the circumstances of this case, Farrelly’s warrantless arrest may have been impermissible under RSA 594:10, I , but while a violation of that statute might support a common- law false-imprisonment claim, it provides no basis for a federal claim under the Fourth Amendment.

41 a. Qualified Immunity

The qualified-immunity question before the court is whether

a reasonable police officer could have believed that there was

probable cause to arrest Farrelly.

“Probable cause exists when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime.” United States v . Young,

, 6 (1st Cir. 1997). Probable cause “does not require the quantum of proof necessary to convict.” United States v . Miller,

(1st Cir. 1978).

United States v . Pontoo,

0 , 31 (1st Cir. 2011). That

i s , “[t]he focus is not on certitude, but, rather, on the

likelihood of criminal activity.” Acosta,

(citing Illinois v . Gates,

(1983); Spinelli v .

United States,

1 0 , 419 (1969); Winchenbach,

5 5 ) . In addition,

“[t]he question of probable cause . . . is an objective inquiry,” and [the court] do[es] not consider the “‘actual motive or thought process of the officer.’” Holder v . Town of Sandown,

0 0 , 504 (1st Cir. 2009) (internal citation omitted) (quoting Bolton v . Taylor,

, 7 (1st Cir. 2004)); see also Whren v . United States,

(1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). Instead of considering any subjective motive of an individual officer, “we must view the circumstances from the perspective of a reasonable person in the position of the officer.” Holder,

.

Kenney v . Head,

5 4 , 358 (1st Cir. 2012) (parallel

citations omitted). Finally, “the probable cause inquiry is not

42 necessarily based upon the offense actually invoked by the

arresting officer but upon whether the facts known at the time

of the arrest objectively provided probable cause to

arrest.” Jones,

(citation omitted).

The parties’ arguments for and against qualified immunity

with respect to Count III are the same arguments they advanced

with respect to Count I I , and need not be repeated here. In

addition to the general rules governing qualified immunity

discussed above, one additional legal principle comes into play:

[A] lesser showing is required for an officer to be entitled to qualified immunity from a Fourth Amendment claim based on a warrantless arrest than to establish probable cause. See Cox v . Hainey,

5 , 31 (1st Cir. 2004). Officers are entitled to qualified immunity “so long as the presence of probable cause is at least arguable.” Ricci v . Urso,

, 7 (1st Cir. 1992) (quoting Prokey v . Watkins,

7 , 72 (1st Cir. 1991)).

Glik,

8 .

Here, it is at least arguable that when he arrested

Farrelly, Officer Pichler had information that would have

allowed a reasonably prudent person to believe that Farrelly had

violated RSA 644:4, I ( b ) . The same holds true for L t . Carroll’s

approval of the arrest. The court has already determined, in

the context of Farrelly’s First Amendment claim, that a

reasonable officer could have believed that Farrelly’s conduct

violated RSA 644:4, I ( b ) . Given that determination, it

necessarily follows that defendants have met the less-demanding

43 standard for establishing the officers’ entitlement to qualified

immunity from Farrelly’s Fourth Amendment claim.

b . “Municipal Immunity”

Defendants argue that the City is entitled to judgment as a

matter of law on Farrelly’s Fourth Amendment Monell claim

because Officer Pichler and L t . Carroll did not violate

Farrelly’s rights under the Fourth Amendment and because, even

if they had, Farrelly has not identified any municipal policy or

custom that would have caused the Fourth Amendment violation he

claims. The City is entitled to judgment as a matter of law on

the Monell claim asserted in Count III for the same reasons that

support judgment as a matter of law on the Monell claim asserted

in Count I I .

c. Summary

Officer Pichler and L t . Carroll are entitled qualified

immunity from Farrelly’s Fourth Amendment claim. Farrelly has

failed to adequate allege a Fourth Amendment Monell claim.

Accordingly, all three defendants are entitled to judgment as a

matter of law on Count III. 4 . Count VII: Failure to Supervise Prosecutorial Function

In Count V I I , which names the City as the defendant,

Farrelly claims:

44 The action of Defendant Concord in failing to educate the individual Defendants in regard to a decision of the New Hampshire Supreme Court declaring a section of the Criminal Harassment Statute unconstitutional more than three years prior to Plaintiff’s arrest, and in failing to train the Defendants in the need to consult New Hampshire Supreme Court annotations contained in the New Hampshire Criminal Code Annotated when enforcing a criminal statute, resulted in the individual Defendants causing the Plaintiff’s illegal arrest.

Second Am. Compl. (doc. n o . 40-1) ¶ 4 2 . Count VII is

coterminous with the Monell claims asserted in Counts II and

III. Thus, the City is entitled to judgment as a matter of law

on Count VII for the same reasons that support judgment as a

matter of law for the City on Counts II and III.

B . State Claims

1 . Count IV: Malicious Prosecution

In Count IV, without identifying any particular

defendant(s) to which the claim stated therein applies, Farrelly

asserts that defendants are liable for malicious prosecution,

under the common law of New Hampshire, because they prosecuted

him with malice, but without probable cause, and the prosecution

was terminated in his favor.

Defendants argue that they are entitled to summary judgment

on Count IV because: (1) there was probable cause for Farrelly’s

arrest, which renders the arrest lawful under RSA 594:13; (2)

they are entitled to immunity under RSA 507-B:5; and (3) the

45 defendant officers are entitled to official immunity, while the

City is entitled to vicarious official immunity. Farrelly

contends that defendants are not entitled to any of the

immunities they claim. Defendants’ third argument, based on

official immunity, is dispositive.

Under the common law of New Hampshire, and under the

circumstances of this case, “[t]o succeed in an action for

malicious prosecution, [Farrelly] must prove that he was

subjected to a criminal prosecution instituted by the

defendant[s] without probable cause and with malice, and that

the criminal proceeding terminated in his favor.” Hogan v .

Robert H . Irwin Motors, Inc.,

3 7 , 739 (1981)

(quoting Stock v . Byers,

4 4 , 845 (1980);

citing Robinson v . Fimbel Door Co.,

4 8 , 350 (1973))

(internal quotation marks omitted). Under New Hampshire law,

“[p]robable cause in the malicious prosecution context has long

been defined as such a state of facts . . . as would lead a man

of ordinary caution and prudence to believe or entertain an

honest and strong suspicion that the person arrested is

guilty.” Forgie-Buccioni v . Hannaford Bros., Inc.,

(1st Cir. 2005) (quoting Stock,

4 6 ) .

The factual underpinning for Count IV is limited to a

single allegation, that Farrelly “was subject to a criminal

prosecution instituted by Defendants.” Second Am. Compl. (doc.

46 no. 40-1) ¶ 36. Paragraphs 22, 26, and 29-30 of the second

amended complaint suggest that the specific conduct on which

Count IV is based is the charging decision made by Officer

Pichler and L t . Carroll, as reflected in the criminal complaints

sworn out after Farrelly’s arrest. Accordingly, that conduct is

the focus of the following discussion of official immunity.

Defendants bear the burden of proving their entitlement to

immunity. See Belcher v . Paine,

3 7 , 144-45 (1992)

(citations omitted). Turning to the particular form of immunity

at issue here, the New Hampshire Supreme Court has “adopted . .

. official immunity for municipal police officers.” Everitt v .

Gen. Elec. Co.,

0 2 , 221 (2007). The plaintiff in

Everitt was a woman who was significantly injured in an

automobile accident caused by a person the defendant police

officer had tested for sobriety, but had declined to detain,

several hours before the accident that injured the plaintiff.

See id. at 204. Based on its determination “that encouraging

independent police judgment for the protection and welfare of

the citizenry at large must prevail over ensuring common law

civil recourse for individuals who may be injured by errant

police decisions,” id. at 219, the court held

that municipal police officers are immune from personal liability for decisions, acts or omissions that are: (1) made within the scope of their official duties while in the course of their employment; (2)

47 discretionary, rather than ministerial; and (3) not made in a wanton or reckless manner.

Id. After adopting the doctrine of official immunity, the court

offered its “caution that the purpose of immunity is to operate

as a bar to a lawsuit, rather than as a mere defense against

liability, and is ‘effectively lost if a case is erroneously

permitted to go to trial.’” Id. at 221 (quoting Sletten v .

Ramsey Cnty.,

9 1 , 300 (Minn. 2004);

citing Richardson v . Chevrefils,

2 7 , 231 (1988)).

Given the conduct on which Count IV is based, it is worth

noting that on the way toward extending the doctrine of official

immunity to municipal police officers, the Everitt court pointed

out that “[p]rosecutors . . . enjoy immunity when performing

advocacy functions; that i s , functions which are intimately

related to initiating and pursuing judicial proceedings against

a person.” 156 N.H. at 215 (citing Belcher,

4 6 ) .

Here, of course, the conduct at issue is the initiation of

judicial proceedings against Farrelly.

When exploring the issue of “[w]hether, and to what extent,

official immunity should be extended to a particular public

official,” id. at 216, the New Hampshire Supreme Court noted the

importance of examining “the kind of discretion which is

exercised and whether or not the challenged government

activities require something more than the performance of

48 ministerial duties,” id. (quoting Sletten, 675 N.W.2d at 3 0 4 ) .

Then, after listing ten factors that should be weighed when

determining whether a particular category of municipal officials

should be protected by official immunity the court observed:

A commentator aptly stated the nature of the comparison and evaluation of these competing factors:

Some official conduct is more vulnerable to attack than other conduct. Some official conduct especially needs a free range of choice that is not hampered by concerns over potential personal liability. Other official conduct is neither especially vulnerable to complaint nor in need of especially unhampered decision-making. One who repairs the street can do a good job without provoking a citizen suit; the prosecuting attorney cannot do a good job without provoking anger and, sooner or later, a citizen suit. Good operation of the prosecutor’s office does adversely affect people (usually criminals, but, unavoidably, others as well); good operation of the street repair department does not harm people, but on the contrary makes their travel safer. Both kinds of work are socially desirable, but one kind, since it is intended to adversely affect others and does s o , is more likely to generate claims than the other. The range of free choice needed in the two kinds of work is also quite different. The importance of the officer’s freedom of decision and the likelihood of unjust suit for honest decision- making are factors to be considered in deciding whether official conduct is “discretionary” and immune or “ministerial” and unprotected.

Everitt, 156 N.H. at 216-17 (quoting W.P. Keeton, et a l . ,

Prosser and Keeton on the Law of Torts § 1 3 2 , at 1065 (5th ed.

1984)). Suffice it to say that the police action that Farrelly

challenges in Count IV is far more akin to the prosecutorial

49 conduct described in Everitt than it is to the conduct of the

defendant in Everitt that inspired the New Hampshire Supreme

Court to adopt the doctrine of official immunity for municipal

police officers.

Defendants argue that Officer Pichler and L t . Carroll are

entitled to official immunity from Farrelly’s malicious-

prosecution claim because their charging decision was “(1) made

within the scope of their official duties while in the course of

their employment; (2) discretionary, rather than ministerial;

and (3) not made in a wanton or reckless manner.” Everitt, 156

N.H. at 219. Farrelly contends that Officer Pichler and L t .

Carroll are not entitled to official immunity because: (1) “the

decision not to arrest [him] for an offense that had been

determined to be unconstitutional was not a discretionary

decision, but a legally obligatory decision that was

ministerial,” Pl.’s Mem. of Law (doc. n o . 3 8 - 1 ) , at 1 7 ; and (2)

“the Defendants were so intent on punishing [him] for his

dispute with the daughter of a former officer, that they acted

‘with intentional or reckless indifference to [his] federal

constitutional rights,’” id. (quoting Am. Compl. (doc. n o . 32) ¶

32). Neither argument is persuasive.

The court begins by noting that while Farrelly’s first

argument focusses on the decision to arrest him, a warrantless

arrest, such as occurred here, is not an act that institutes a

50 criminal prosecution, at least for purposes of a Fourth

Amendment malicious-prosecution claim. See Harrington, 610 F.3d

at 32 (citing Nieves, 241 F.3d at 5 4 ; Singer v . Fulton Cnty.

Sheriff,

1 0 , 117 (2d Cir. 1995)). Giving Farrelly the

benefit of the doubt, the court will construe his argument as

being directed toward both the decision to arrest him and the

charging decision. Still, however, his argument fails.

Farrelly’s position is that because RSA 644:4, I(f) had

been held unconstitutional by the time he was charged with

violating i t , whatever discretion Officer Pichler and L t .

Carroll may have had did not extend so far as to cover their

charging him with violating that particular statute. The

problem with that argument is the way it frames the charging

decision. The decision facing the officers was not whether to

charge Farrelly with violating RSA 644:4, I ( f ) . Rather, their

decision had to do with whether to charge Farrelly with a crime

at all, and if s o , what crime. Framed that way, the officers’

conduct involved an exercise of discretion, rather than the

execution of a ministerial task.

The opinion in Everitt, New Hampshire’s landmark official-

immunity case, describes the distinction between discretionary

and ministerial acts:

A discretionary decision, act or omission involves the exercise of personal deliberation and individual professional judgment that necessarily

51 reflects the facts of the situation and the professional goal. Sletten, 675 N.W.2d at 306; Clark [v. Univ. of Houston], 60 S.W.3d [206,] 208 [(Tex. App. 2001)]. Such decisions include those for which there are no hard and fast rules as to the course of conduct that one must or must not take and those acts requiring the exercise of judgment and choice and involving what is just and proper under the circumstances. Borders [v. City of Huntsville], 875 S o . 2d [1168,] 1178 [(Ala. 2003)]. An official’s decision, act or omission is ministerial when it is absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts. Sletten, 675 N.W.2d at 306; Dokman [v. Cnty. Of Hennepin], 637 N.W.2d [286,] 296 [(Minn. C t . App. 2001)]; Clark, 60 S.W.3d at 208 (ministerial actions are those which require obedience to orders or performance of a duty which leave no choice for the public official). “Ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion,” Mulligan [v. Rioux], 643 A.2d [1226,] 1233 [(Conn. 1994)], (quotations and brackets omitted), and includes those decisions, acts or omissions “imposed by law with performance required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon the officer’s judgment or discretion,” Brumfield [v. Lowe], 744 S o . 2d [383,] 388 [(Miss. C t . App. 1999)] (quotation and brackets omitted); see also Restatement [(Second) of Torts § 895D] comment h at 418 [(1979)] (acts are ministerial when official administers law “with little choice as to when, where, how or under what circumstances their acts are to be done”).

156 N.H. at 219-20.

Here, at the time Officer Pichler and L t . Carroll drafted

the criminal complaints against Farrelly, they had before them

evidence, including Farrelly’s own admissions, suggesting that

he had engaged in conduct described in both RSA 644:4, I(b) and

(f). In the process of making their charging decision, the

52 officers: (1) evaluated the written and oral evidence before

them; (2) sought out and construed the relevant criminal

statute(s); and (3) compared Farrelly’s conduct to the conduct

proscribed by the applicable statute(s). All of those tasks

“involve[d] the exercise of personal deliberation and individual

professional judgment.” Everitt, 156 N.H. at 219. Thus, the

charging decision in this case was the result of a discretionary

rather than a ministerial act. See Moses v . Mele, N o . 10-cv-

253-PB,

, at *6 (D.N.H. Apr. 2 4 , 2012) (holding,

in case where plaintiff did not argue to the contrary, that

police officer who issues criminal complaint performs

discretionary rather than ministerial a c t ) .

In addition to showing that Farrelly seeks to hold Officer

Pichler and L t . Carroll liable for their performance of a

discretionary act, defendants must also show that the officers’

charging decision was “not made in a wanton or reckless

manner.” Everitt, 156 N.H. at 219. While the Everitt opinion

devotes considerable attention to describing the distinction

between discretionary acts and ministerial acts, see id. at 219-

2 1 , it does not define the terms “wanton” or “reckless.” In

reliance on an opinion in a case that did not involve official

immunity, defendants say that “[c]onduct is wanton or reckless

when it is taken with disregard to or indifference to

consequences under circumstances involving danger to life or

53 safety of others.” Defs.’ Mem. of Law (doc. n o . 3 6 - 1 ) , at 20

(citing Migdal v . Stamp,

7 1 , 176 (1989)). For his

part, Farrelly says that defendants’ intent to punish him for

his dispute with the daughter of a former colleague drove them

to act “with intentional or reckless indifference to [his]

federal constitutional rights.” Pl.’s Mem. of Law (doc. n o . 38-

1 ) , at 1 7 . The court does not agree.

In Moses, Judge Barbadoro noted that “[t]he New Hampshire

Supreme Court has provided little guidance in the official

immunity context as to what might constitute ‘wanton or

reckless’ conduct.”

, at * 7 . In reliance on an

opinion of that court in the area of sovereign immunity, Judge

Barbadoro determined that government employees do not engage in

wanton or reckless conduct that would subject them to liability

for malicious prosecution “if they act[ ] with a reasonable

belief in the lawfulness of their conduct.”

(citing Opinion

of the Justices,

5 4 , 564-65 (1985)). He also noted

that “‘reckless or wanton’ is a mens rea that is greater than

negligence but less than intentional.” Moses,

,

at *7 (citing Thompson v . Forest,

(1992); Migdal,

7 6 ) . Then, he determined that the

police officer in the case before him was entitled to official

immunity because, from both a subjective and an objective

perspective, the officer had a reasonable belief that there was

54 probable cause to prosecute the plaintiff. A similar conclusion

is warranted here.

As in Moses, “[o]n the subjective level, there is simply no

evidence in the record to support a claim that [Officer Pichler

or L t . Carroll] believed that [they] lacked probable cause when

[they] elected to proceed with [Farrelly]’s prosecution.”

, at * 7 . Rather, there is undisputed evidence that

the officers did not know that RSA 644:4, I(f) had been declared

unconstitutional, see Pichler Dep. (doc. n o . 3 6 - 3 ) , at 1 6 ;

Carroll Dep. (doc. n o . 3 6 - 4 ) , at 1 6 , and thus believed, albeit

erroneously, that the complaints they drafted charged Farrelly

with violating a valid statute. Moreover, Farrelly identifies

nothing to support a conclusion that the officers knew they

lacked probable cause for his prosecution. Accordingly,

defendants have established that from a subjective standpoint,

Officer Pichler and L t . Carroll held a reasonable belief that

there was probable cause for Farrelly’s prosecution.

In Moses, Judge Barbadoro also determined that, on the

objective level, the defendant officer had a reasonable belief

that there was probable cause to prosecute the plaintiff for

witness tampering. He based that determination on his previous

finding, in the context of a qualified-immunity analysis, that a

reasonable officer could have believed that there was probable

cause to arrest the plaintiff for witness tampering. See 2012

, at * 7 . This case, of course, presents a different

situation; the officers are entitled to qualified immunity from

Farrelly’s Fourth Amendment false-arrest claim, but that

immunity is based on the existence of probable cause to believe

that Farrelly’s conduct violated RSA 644:4, I ( b ) , not the

portion of the harassment statute he was ultimately charged with

violating. In any event, the question here is whether, on an

objective level, it was reasonable for Officer Pichler and L t .

Carroll to believe that there was probable cause to prosecute

Farrelly for violating RSA 644:4, I ( f ) .

Officer Pichler and L t . Carroll did not pull the language

they used in the complaints against Farrelly out of thin air;

they consulted the edition of the New Hampshire criminal code

that had been issued to them by the Concord Police Department.

That edition, like the official version of the Revised Statutes

Annotated, includes RSA 644:4, I ( f ) , which indicates that,

notwithstanding the New Hampshire Supreme Court’s decision in

Pierce, the legislature has never repealed that statute.15

Objectively, it is reasonable for a police officer to believe

that he is entitled to enforce a statute printed in the criminal

code he is provided by his employer. The court’s conclusion

might well be different in a case where the defendant was a 15 The same is true for RSA 644:4, I ( a ) , which the New Hampshire Supreme Court held to be unconstitutional in State v . Brobst,

(2004).

56 lawyer, but the standard here is what a reasonable police

officer in the position of Officer Pichler or L t . Carroll would

have believed. In sum, the officers’ belief that there was

probable cause to prosecute Farrelly for violating RSA 644:4,

I ( f ) , based on their understanding that the statute was good

law, was objectively reasonable. The decision to charge

Farrelly with violating RSA 644:4, I(f) may have been negligent,

but it was not reckless or wanton.

Based on the foregoing, the court concludes that the

charging decision Farrelly challenges was: (1) made in the

course of the officers’ employment and within the scope of their

official duties; (2) discretionary; and (3) not wanton or

reckless. Accordingly, Officer Pichler and L t . Carroll are

entitled to official immunity from liability for damages

resulting from their decision to charge Farrelly with violating

RSA 644:4, I ( f ) . See Everitt, 156 N.H. at 219. That leaves the

question of the City’s liability on Farrelly’s malicious-

prosecution claim.

Presumably on the assumption that Count IV asserts a claim

against the city under a theory of vicarious liability,

defendants argue, in reliance on Everitt, 156 N.H. at 221-22,

that the City is entitled to vicarious official immunity. While

Farrelly argues that Officer Pichler and L t . Carroll are not

entitled to official immunity, he does not challenge defendants’

57 argument that, in the event the officers are entitled to

official immunity, the City is entitled to vicarious official

immunity.

In Everitt, the New Hampshire Supreme Court decided that

“[o]fficial immunity, when available to individual public

officials, generally may be vicariously extended to the

government entity employing the individual, but it ‘is not an

automatic grant.’” 156 N.H. at 221 (quoting Sletten, 675 N.W.

2d at 3 0 0 ) . Rather, the court established the following

standard for determining whether vicarious immunity is

appropriate in a particular case:

Vicarious immunity ought to apply when the very policies underlying the grant of official immunity to an individual public official would otherwise be effectively undermined. See Sletten, 675 N.W.2d at 300. In other words, vicarious immunity applies when exposing the municipality to liability would focus “stifling attention” upon the individual official’s job performance and thereby deter effective performance of the discretionary duties at issue. Id.; c f . Tilton [v. Dougherty], 126 N.H. [294,] 299 [(1985)] (indemnification of individual state officials does not protect independence in judgment and discretion because individuals still would fear retribution from government that would have to pay the judgment).

Everitt, 156 N.H. at 221-22 (parallel citation omitted). The

circumstances of this case fit within the framework established

in Everitt. The City is entitled to vicarious immunity from

liability for the charging decision made by Officer Pichler and

L t . Carroll.

58 Based on the foregoing, all three defendants are entitled

to judgment as a matter of law on Count IV.

2 . Count V : False Imprisonment

Without identifying any particular defendant(s) to which it

applies, Count V states, in full:

Defendants violated Plaintiff’s right against false imprisonment by detaining him without legal authority.

Second Am. Compl. (doc. n o . 40-1) ¶ 4 0 .

Defendants argue that they are entitled to summary judgment

on Count V because: (1) there was probable cause for Farrelly’s

arrest, which renders the arrest lawful under RSA 594:13; (2)

they are entitled to immunity under RSA 507-B:5; and (3) the

defendant officers are entitled to official immunity, while the

City is entitled to vicarious official immunity. With regard to

RSA 594:13, Farrelly contends that Officer Pichler did not have

probable cause to arrest him for violating RSA 644:4, I ( b ) , and

he further contends that defendants are not entitled to any of

the immunities they claim. The court agrees.

a. Elements of the Claim

In New Hampshire, “[f]alse imprisonment is the unlawful

restraint of an individual’s personal freedom.” MacKenzie v .

Linehan,

(2009) (citing Hickox v . J.B. Morin

Agency, Inc.,

3 8 , 442 (1970)). To prevail on his

59 claim for false imprisonment, Farrelly must

show that: (1) [the] defendant [officers] acted with the intent of confining him within boundaries fixed by [the] defendant [officers]; (2) [the] defendant [officers’] act[s] directly or indirectly resulted in [his] confinement; (3) [he] was conscious of or harmed by the confinement; and (4) [the] defendant [officers] acted without legal authority.

MacKenzie,

(citing Restatement (Second) of Torts

§ 35 (1965); Welch v . Bergeron,

(1975)).

Indeed, “[a]n essential element of the [claim] is the absence of

valid legal authority for the restraint imposed.” Mackenzie,

(quoting Welsh,

8 1 ) . Moreover, “in

the case of detention without a warrant, the defendant, in order

to avoid liability, has the burden of justifying his act by

showing that he had probable cause for imposing the particular

restraint.” Larreault v . First Nat’l Stores, Inc.,

(1945) (per curiam) (citations omitted).

b . Probable Cause

Defendants argue that they are entitled to judgment as a

matter of law on Count V because Officer Pichler had probable

cause to arrest Farrelly, which gave him valid legal authority

for the restraint he imposed on Farrelly. In New Hampshire,

“[a]n officer has probable cause to arrest when he has

‘sufficient, trustworthy information to warrant a reasonable

person to believe that the arrestee has committed a

60 crime.’” State v . Newcomb,

(2011)

(quoting State v . Vandebogart,

(1994)). More

specifically:

In determining whether the police had probable cause, we review “reasonable probabilities and not the amount of evidence required to sustain a conviction or to make out a prima facie case.” State v . Jaroma,

6 2 , 567 (1993) (quotation omitted). We are not bound by mathematical calculations in making this determination, but instead “must approach the issue with a concern for the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Vandebogart,

(quotation omitted).

We again emphasize that probable cause is a commonsense rather than technical concept and “deals with the reasonable probabilities upon which officers must act quickly for the protection of society rather than with the proof beyond reasonable doubt which the State must have to proceed to trial and conviction.” State v . Hutton,

(1967) (quotation omitted).

Newcomb,

(parallel citations omitted).

Regarding who determines whether an arrest is supported by

probable cause, the judge or the jury, the court presumes that

in the false-imprisonment context, the New Hampshire Supreme

Court would adopt the same rules that apply to the determination

of probable cause when a plaintiff brings a claim for malicious

prosecution. Under those rules:

The existence of probable cause, in this context, is a question for the trier of fact “to the extent that it depends upon the credibility of conflicting evidence proffered on that issue.” Stock,

.

61 “Whether there was probable cause is ultimately, however, a question of law to be determined by the court.”

Paul v . Sherburne,

4 7 , 750 (2006) (parallel citations

omitted).

Having described the legal principles pertaining to

probable cause, the court notes one additional wrinkle in this

case: in order for defendants to avoid liability for false

imprisonment, Officer Pichler needed both probable cause to

believe that Farrelly had committed the crime of harassment and

probable cause to believe that the circumstances surrounding

that crime satisfied the statutory requirements for making a

warrantless arrest. In the absence of sufficient grounds for a

warrantless arrest, the restraint Officer Pichler imposed upon

Farrelly was, necessarily, without legal authority.

Harassment is a misdemeanor. See RSA 644:4, I . For

purposes of the following discussion, the court assumes that

Officer Pichler had probable cause to believe that Farrelly had

committed that crime. However, without a warrant, a police

officer may lawfully arrest a person for committing a

misdemeanor only under certain circumstances, just one of which

is relevant here:

I . An arrest by a peace officer without a warrant on a charge of a misdemeanor or a violation is lawful whenever:

62 (b) He has probable cause to believe that the person to be arrested has within the past 12 hours committed abuse as defined in RSA 173-B:1, I against a person eligible for protection from domestic violence as defined in RSA 173-B:1 . .

RSA 594:10. RSA 173-B:1, in turn, defines “abuse” as

the commission or attempted commission of one or more of the acts described in subparagraphs (a) through (g) by a family or household member or by a current or former sexual or intimate partner, where such conduct is determined to constitute a credible present threat to the petitioner’s safety. The court may consider evidence of such acts, regardless of their proximity in time to the filing of the petition, which, in combination with recent conduct, reflects an ongoing pattern of behavior which reasonably causes or has caused the petitioner to fear for his or her safety or well-being:

(g) Harassment as defined in RSA 644:4.

RSA 173-B:1, I (emphasis added). In other words:

“Abuse” is defined as having two elements: (1) commission or attempted commission of one or more of several criminal acts . . . ; and (2) a finding that such misconduct “constitutes a credible threat to the plaintiff’s safety,” RSA 173–B:1, I .

Walker v . Walker,

0 2 , 608 (2009) (emphasis added).

With regard to the second element of abuse, “a plaintiff . . .

[must] show more than a generalized fear for personal safety

based upon past physical violence and more recent non-violent

harassment to support a finding that a credible threat to her

safety exists.”

(quoting Tosta v . Bullis,

,

63 768, (2008)). For example, in In re Alexander,

(2002), the New Hampshire Supreme Court reversed the trial

court’s entry of a final domestic violence restraining order,

due to lack of a credible threat to safety, even though: (1) the

petitioner alleged that the respondent “had ‘shown physical

violence in [the] past’ and [that] she feared for her personal

safety because he owned weapons,”

; (2) “the evening

before the hearing, the respondent pulled his car alongside her

car and made a rude gesture towards her,”

; and (3)

the respondent had contacted the petitioner on numerous

occasions by mail, by telephone, and in person,

Here, defendants have failed to establish as a matter of

law that the circumstances of this case justified a warrantless

arrest. To make a lawful arrest without a warrant, Officer

Pichler needed to have probable cause to believe that Farrelly’s

alleged harassment of Corliss within the previous twelve hours,

i.e., the Jezebel e-mail, constituted a credible threat to her

safety.

The Jezebel e-mail contained Farrelly’s threat that he

would show up at Corliss’s birthday party at a local restaurant

and tell her guests that she had given him herpes and had stolen

money from him. But, objectively, that e-mail contained no

threat of violence against Corliss. Indeed, at his deposition,

Officer Pichler testified that “there weren’t any specific

64 references to threats of bodily injury in those e-mails.”

Pichler Dep. (doc. n o . 3 6 - 3 ) , at 5 8 .

With regard to Corliss’s fear of Farrelly, she said nothing

about fearing Farrelly in the written statement she gave Officer

Pichler. When she spoke with Officer Pichler, she told him

“that there were several instances where M r . Farrelly’s anger,

where he got out of control,”

at 5 4 , “but as far as this

specific instance her main concern was that she didn’t want it

to arise to that level. She felt that if he kept communicating

with her and showed up at her party that something might happen

and she feared for her safety and the safety of her

daughter.”

The fear Corliss expressed to Officer Pichler

is precisely the kind of “generalized fear for personal safety

based on past physical violence and more recent non-violent

harassment,” Walker, 158 N.H. at 6 0 8 , that is insufficient to

support a finding of abuse, see id.

Finally, after speaking with Corliss, Officer Pichler went

to see Farrelly and found that Farrelly did not “say or do

anything . . . that suggested he was a threat to M s . Corliss’s

safety.” Pichler Dep. (doc. n o . 3 6 - 3 ) , at 5 0 . At his

deposition, Officer Pichler indicated that when he arrested

Farrelly, he was unaware of the credible-threat requirement for

a warrantless arrest, see id. at 5 1 , and that, in light of that

65 requirement, Farrelly should not have been arrested without a

warrant, see id.

Based on the foregoing, the court has no difficulty

concluding that defendants have not shown, as a matter of law,

that Officer Pichler had probable cause to arrest Farrelly

without a warrant. Moreover, notwithstanding Officer Pichler’s

statement in his arrest report that Corliss told him she was

scared that Farrelly was going to come to her birthday party and

hurt her or her daughter, see Answer, Ex. A (doc. n o . 3 4 - 1 ) , at

2 , the court harbors substantial doubt as to whether there is

even a triable issue regarding probable cause for Farrelly’s

warrantless arrest. But, for the moment, it is sufficient to

say that defendants have not shown that when Officer Pichler

arrested Farrelly, he possessed sufficient information to allow

a reasonable person to conclude that Farrelly’s alleged

harassment constituted a credible threat to Corliss’s safety.

c. Statutory Immunity

Defendants also claim entitlement to statutory immunity.

The statute on which they rely for immunity provides that “[n]o

governmental unit shall be held liable in any action to recover

for bodily injury, personal injury or property damage except as

provided by this chapter or as is provided or may be provided by

other statute.” RSA 507-B:5. That provision also applies to

66 municipal employees “acting within the scope of [their]

office[s] and in good faith.” RSA 507-B:4, IV.

In defendants’ view, RSA 507-B:5 shields them from

liability for false imprisonment because that cause of action is

not “provided by” RSA chapter 507-B or any other New Hampshire

statute. Under defendants’ reading, RSA chapter 507-B is the

legal source that provides causes of action against

municipalities, and provides only one kind of action, described

as follows:

A governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to i t , arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises; provided, however, that the liability of any governmental unit with respect to its sidewalks, streets, and highways shall be limited as provided in RSA 231 and the liability of any governmental unit with respect to publicly owned airport runways and taxiways shall be limited as set forth in RSA 422.

RSA 507-B:2.

Farrelly reads RSA 507-B:5 differently; in his view, that

statute does not limit municipal liability to the kinds of

claims discussed in RSA 507-B:2. Rather, he construes RSA 507-

B:5 as informing potential plaintiffs of various statutory

alterations to the common law, such as the limitation on

monetary damages provided by RSA 507-B:4. That i s , Farrelly

regards RSA chapter 507-B not as providing causes of action but

67 as establishing a set of rules limiting the scope of municipal

liability for claims brought under causes of action provided by

the common law. Farrelly’s argument is persuasive.

RSA chapter 507-B was enacted in response to the New

Hampshire Supreme Court’s decision in Merrill v . City of

Manchester,

(1974). In Merrill, the court

abrogated the judicially created doctrine of municipal immunity

for torts, explaining its decision this way:

We hold that the immunity from tort liability heretofore judicially conferred upon cities and towns is hereby abrogated except for the following exception. They are immune from liability for acts and omissions constituting (a) the exercise of a legislative or judicial function, and (b) the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.

This removal of immunity does not impose absolute or strict liability on cities and towns but merely places them subject to the same rules as private corporations if a duty has been violated and a tort committed. In other words it places responsibility on cities and towns under the doctrine of respondeat superior for injuries negligently caused by their agents, servants and employees in the course of their employment. Furthermore, the legislature has authority to specify the terms and conditions of suit against cities and towns, limit the amount of recovery, or take any other action which in its wisdom it may deem proper.

(citations omitted). The result of Merrill was to

provide potential plaintiffs with a full range of common-law

tort claims against municipalities, except for claims arising

68 from the exercise of legislative, judicial, executive or

planning functions.16 In Everitt, the Supreme Court described

its decision in Merrill:

The doctrine of municipal immunity has historically protected local governments from tort liability. Merrill,

. More than three decades ago, however, this court abrogated the common law doctrine of municipal immunity with limited exception.

,

. Consequently, municipalities are subject in most instances to the same rules of liability as private corporations.

.

(parallel citations omitted).

Based on a careful reading of Merrill and Everitt, the

purpose and function of RSA chapter 507-B comes into clearer

focus. By enacting RSA chapter 507-B, the legislature did just

what the Supreme Court suggested it might do in Merrill; it

“specif[ied] the terms and conditions of suit against cities and

towns,”

. Obvious terms and conditions include a

consolidation requirement, see RSA 507-B:3, a cap on

compensatory damages, see RSA 507-B:4, I , a bar against punitive

damages, see RSA 507-B:4, I I , an exemption of governmental

property from attachment, see RSA 507-B:6, and a statute of

limitations, see RSA 507-B:7.

16 It cannot be reasonably argued that Officer Pichler’s arrest of Farrelly involved any exercise of the City of Concord’s legislative, judicial, executive, or planning functions.

69 RSA 507-B:2, which defendants read, in conjunction with RSA

507-B:5, as barring any tort claims except for those arising

from the ownership, occupation, maintenance, or operation of

motor vehicles or premises does no such thing. Rather, it

simply provides that when certain kinds of claims are brought,

the liability of the defendant municipality is limited by two

other statutes, RSA 231 and RSA 422. It is worth bearing in

mind that the result of Merrill was to subject municipalities

“to the same rules as private corporations if a duty has been

violated and a tort committed.”

. Plainly, in

the wake of Merrill, a municipality could be held liable for

torts such as false imprisonment. If the legislature had

intended to provide immunity from certain torts or categories of

torts, is could have said s o . But rather than doing that, it

indicated, throughout RSA chapter 507-B, that municipalities

could be held liable for bodily injury, personal injury and

property damage, and it defined personal injury as “[a]ny injury

to the feelings or reputation of a natural person” caused by a

variety of torts, including false imprisonment. RSA 507-B:1,

III(a).

Merrill exposed municipalities to a wide range – but not

the full range – of tort liability. There is nothing in either

the plain language or the structure of RSA 507-B that evinces a

legislative intent to substantially restore the municipal

70 immunity abrogated by Merrill. In the absence of plain language

restoring immunity from claims for torts such as false

imprisonment, defendants cobble together two disparate portions

of RSA 507-B, and identify, as the operative provision, RSA 507-

B:5. But, RSA 507-B:5 is located between a provision capping

the amount of damages that may be recovered from a municipality

and a provision exempting governmental property from attachment.

Thus, the more reasonable reading of RSA 507-B:5 is to view that

provision as merely another term or condition on suits that may

be brought against municipalities, not as part of a bar against

broad categories of causes of action.

Such a reading of RSA 507-B:5 is reinforced by Everitt. In

that decision, which was issued long after the decision in

Merrill and the enactment of RSA chapter 507-B, the Supreme

Court still regarded municipalities as “subject in most

instances to the same rules of liability as private

corporations.” Everitt,

. If defendants’

reading of RSA chapter 507-B were correct, municipalities would

be liable only for claims “arising out of ownership, occupation,

maintenance or operation of all motor vehicles, and all

premises,” RSA 507-B:2. In other words, they would be subject

in some instances, but not most instances, to the same rules of

liability as private corporations, which include the

“constitutional guarantee that every subject is entitled to a

71 legal remedy for injuries he may receive in his person or

property,” Merrill,

(citation omitted), and “the

basic concept of the law of torts that liability follows

negligence and that individual corporations are responsible for

the negligence of their agents, servants and employees in the

course of their employment,”

(citation omitted). In sum,

Farrelly’s common-law claim for false imprisonment is not barred

by RSA chapter 507-B.

d. Official Immunity

Defendants also argue that they are entitled to official

immunity from Farrelly’s false-imprisonment claim. As with the

decision Officer Pichler and L t . Carroll made to charge Farrelly

with violating RSA 644:4, I ( f ) , Officer Pichler arrested

Farrelly in the course of his employment and within the scope of

his official duties. And, the decision to make the arrest was

discretionary. The same holds true for L t . Carroll’s

involvement in Farrelly’s arrest. The first two criteria for

official immunity are beyond reasonable dispute. Thus, so long

as the decision to arrest Farrelly was not wanton or reckless,

Officer Pichler and L t . Carroll are entitled to official

immunity from liability from the claim asserted in Count V .

When assessing whether the officers’ decision to arrest

Farrelly was wanton or reckless, there are two separate aspects

72 of that decision to consider: (1) the officers’ determination

that Farrelly had committed the crime of harassment; and (2)

their determination that a warrantless arrest was justified.

For purposes of the analysis that follows, the court assumes

that the officers did not act in a wanton or reckless manner

when they determined that there was probable cause to arrest

Farrelly for harassment. That leaves the issue of the

warrantless arrest. Again, the court follows Judge Barbadoro

and examines both the objective and subjective components of the

decision to arrest Farrelly without a warrant.

In Moses, Judge Barbadoro observed that the New Hampshire

Supreme Court has yet to decide whether there is both an

objective and a subjective component to the standard for

assessing a government official’s “reasonable belief” in the

lawfulness of his or her conduct, which, in turn, is relevant to

determining whether that conduct was wanton or reckless.

See

, at * 7 . After making that observation,

Judge Barbadoro went on to analyze both the objective and

subjective aspects of the charging decision that was being

challenged in the case before him. See

Because they rely

on a dictionary definition of recklessness drawn from a case

that did not involve immunity of any sort, defendants here do

not argue that the New Hampshire Supreme Court would reject the

idea that there is a subjective component to the recklessness

73 analysis. Accordingly, this court assumes that the recklessness

analysis has both an objective and a subjective component. Such

an approach is especially appropriate in this case, as most of

the relevant admissible evidence consists of Officer Pichler’s

impressions of Corliss and Farrelly, and his knowledge of the

applicable law.

Objectively, the question in this case is relatively

straightforward: could a reasonable police officer have

determined that there was probable cause to believe that

Farrelly’s transmission of the Jezebel e-mail “constitute[d] a

credible threat to [Corliss]’s safety.”17 RSA 173-B:1, I . On

its face, the Jezebel e-mail does not include any language that

could reasonably be construed as a threat to Corliss’s safety,

and in her written statement to the police, Corliss did not say

anything about being afraid of Farrelly. On the other hand,

Farrelly did threaten to appear at Corliss’s birthday party and

disrupt it by making disparaging comments about her. Given the

vituperative tone of the e-mail and Farrelly’s readily apparent

17 While there was not probable cause for a warrantless arrest, for the reasons given above, the court presumes that in the realm of official immunity under New Hampshire law, as with federal qualified immunity, a “lesser showing is required for an officer to be entitled to [official] immunity from a [false imprisonment] claim based on a warrantless arrest than to establish probable cause,” Glik,

8 ; see also Moses,

, at *7 (likening the objective component of the official-immunity recklessness analysis to the federal standard for qualified immunity).

74 antagonism toward Corliss, the court concludes that it is at

least arguable that there was probable cause to believe that

less than twelve hours before Farrelly was arrested, he had

committed an act of harassment that constituted a threat to

Corliss’s safety.

The subjective component of the analysis, however, is a

different story. For defendants, the best that can be said is

that, as in Moses, “there is . . . no evidence in the record to

support a claim that Officer [Pichler] believed that he lacked

probable cause” when he arrested Farrelly.

, at

*7. But, Officer Pichler’s belief that he had probable cause is

a two-edged sword because, as he conceded at his deposition,

that belief was based on a substantial misunderstanding of the

requirements for making a warrantless arrest: he did not know

about the credible-threat requirement.18 Moreover, Officer

Pichler testified that he and L t . Carroll both consulted the

criminal code before Farrelly was arrested, to determine which

18 In New Hampshire, it is well established that ignorance of the law provides no excuse for those accused of violating i t . See, e.g., State v . Riendeau,

8 8 , 297 (2010) (citing State v . Stratton,

5 1 , 457 (1989)). It would seem ironic, at best, for ignorance of the law to provide a defense against liability for those charged with enforcing i t . Beyond that, one might legitimately ask whether a reasonable police officer would not have known the statutory requirements for making a warrantless arrest.

75 form(s) of harassment he may have committed.19 It would have

been a simple matter for them to have reviewed the statutory

requirements for making a warrantless arrest, but they did not,

notwithstanding Officer Pichler’s deposition testimony that the

Concord Police Department has a “[s]trong preference” for

securing a warrant before making an arrest. Pichler Dep. (doc.

no. 3 6 - 3 ) , at 4 3 . Actively consulting the harassment statute

without also consulting the warrantless-arrest statutes, while

contemplating a warrantless arrest, suggests at least a degree

of recklessness.

In Moses, Judge Barbadoro determined that the defendant

officer’s charging decision was not subjectively reckless in

part because “it [was] undisputed that he sought a supervisor’s

advice prior to charging Moses, and that shortly after

initiating the charge, [the officer] obtained a probable cause

determination from a state court judge,”

, at * 7 .

In Judge Barbadoro’s view, “[t]hese [were] hardly the actions of

an officer who was acting from a subjective belief that he

lacked probable cause to prosecute,”

19 With regard to Officer Pichler’s subjective understanding of the threating nature of the Jezebel e-mail, it is worth noting that he did not even consider arresting Farrelly for criminal threatening, see Pichler Dep. (doc. n o . 3 6 - 3 ) , at 3 9 , nor did he and L t . Carroll contemplate charging Farrelly with violating RSA 644:4, I ( e ) , a form of harassment that includes communications that involve “a threat to the life or safety of another,” see Pichler Dep., at 65-69.

76 Here, Officer Pichler did seek the advice of a supervisor

prior to arresting Farrelly. But, in contrast with the officer

in Moses who obtained a probable cause determination, Officer

Pichler did not attempt to obtain an arrest warrant, deeming

such an exercise to be “a waste of time,” Pichler Dep. (doc. n o .

3 6 - 3 ) , at 6 2 . When asked whether Corliss’s safety would have

been compromised if he had taken the time to get a warrant for

Farrelly’s arrest, Officer Pichler responded: “I can’t answer

that question. I don’t know. I don’t know.”

at 6 0 .

Moreover, there is undisputed evidence that at the time Officer

Pichler arrested Farrelly, he had determined that Farrelly did

not “present a credible present threat to [Corliss’s] safety.”

at 5 1 . In other words, there is no evidence that Officer

Pichler harbored a subjective belief that a warrantless arrest

was necessary to diffuse a dangerous situation such as those

police officers encounter in the immediate aftermath of an

incident of domestic violence where both parties are still on

the scene and emotions are running high. Rather, Officer

Pichler’s deposition testimony suggests that the only time

pressure he faced was making sure that he made contact with

Farrelly before the twelve-hour limit for making a warrantless

arrest had expired. See

at 5 8 , 6 0 .

77 Finally, the plaintiff in Moses did “not point[ ] to any

circumstantial evidence that would call into question Officer

Mele’s intent by tending to show that he did not believe in the

lawfulness of his conduct.”

, at * 7 . Here,

there are at least two pieces of circumstantial evidence that

call into question Officer Pichler’s intent. The first is his

rush to beat the clock and arrest Farrelly before the twelve-

hour time limit for a warrantless arrest had expired. One could

reasonably infer from Officer Pichler’s haste at least some

concern that a magistrate might not find probable cause for

Farrelly’s arrest. Second, there is Farrelly’s deposition

testimony that Officer Pichler told him, after the arrest, that

“[t]his is what you get for fucking with a 30-year veteran of

the Concord PD,” Farrelly Dep. (doc. n o . 3 8 - 6 ) , at 4 . That is

circumstantial evidence that Officer Pichler held a subjective

belief that Farrelly’s arrest was based on something other than

probable cause to believe that he posed a credible threat to

Corliss’s safety.

The question before the court is whether the defendants

have established that Officer Pichler is entitled to official

immunity for arresting Farrelly without a warrant. They have

not. Pichler’s own deposition testimony establishes that: (1)

notwithstanding the Concord Police Department’s preference for

arrest warrants, he did not take the time to review the

78 requirements for making a warrantless arrest (including the

credible-threat requirement), but did consult the criminal code

to find crimes for which he could arrest Farrelly; (2) he did

not believe that the Jezebel e-mail constituted a threat to

Corliss; and (3) he did not believe that Corliss’s safety would

have been put at risk if he had taken the time to get a warrant

for Farrelly’s arrest. Under the circumstances, the defendants

have not put forth sufficient evidence to immunize Officer

Pichler from liability for arresting Farrelly without a warrant.

This means that neither he nor L t . Carroll are entitled to

official immunity from the claim stated in Count V .

The court does not make this decision lightly. There is

undoubtedly a strong societal interest in protecting victims of

domestic abuse, an interest defendants stressed at oral

argument. At the same time, however, the very statutes enacted

as protection against domestic abuse also protect those accused

of abuse from warrantless arrest unless they pose a credible

threat to the safety of their purported victims. When given the

opportunity at his deposition to justify his warrantless arrest

of Farrelly, Officer Pichler flatly declined to say that

Farrelly’s e-mail, or any other words or conduct, posed a threat

to Corliss’s safety. His only justification for not seeking a

warrant was his belief that he did not need one, a belief that

was based on his ignorance of the laws governing warrantless

79 arrest. Under those circumstances, defendants have not shown

that Officer Pichler and L t . Carroll are entitled to the benefit

of official immunity.

Finally, because Officer Pichler and L t . Carroll are not

entitled to official immunity, the City, necessarily, is not

entitled to vicarious official immunity.

e . Summary

Defendants have failed to demonstrate that Officer Pichler

had probable cause to arrest Farrelly. Farrelly’s suit is not

barred by RSA chapter 507-B. And, under the circumstances of

this case, neither Officer Pichler nor L t . Carroll is entitled

to official immunity from Farrelly’s false-imprisonment claim.

Absent official immunity for the officers, the City is not

entitled to vicarious official immunity. Accordingly,

defendants are not entitled to judgment as a matter of law on

the state-law claim for false imprisonment stated in Count V .

3 . Count V I : Violation of the N.H. Constitution

Without identifying any particular defendant(s) to which it

applies, Count VI states, in full:

The action of the Defendants in arresting and prosecuting the Plaintiff under a criminal statute previously determined to be unconstitutional, violated his rights under the Part I , Articles 19 and 22 of the New Hampshire Constitution protecting his right to

80 free speech and his right against unreasonable search and seizure.

Second Am. Compl. (doc. n o . 40-1) ¶ 4 1 .

Defendants argue that they are entitled to summary judgment

on Count IV because: (1) there was probable cause for Farrelly’s

arrest, which renders the arrest lawful under RSA 594:13; (2)

they are entitled to immunity under RSA 507-B:5; and (3) the

defendant officers are entitled to official immunity, while the

City is entitled to vicarious official immunity. With regard to

RSA 594:13, Farrelly contends that Officer Pichler did not have

probable cause to arrest him for violating RSA 644:4, I ( b ) , and

he further contends that defendants are not entitled to any of

the immunities they claim.

The court begins by noting “that the New Hampshire Supreme

Court has never recognized any constitutional torts that would

serve as causes of action to vindicate the rights protected by

Part I , Articles 19 [and] 22 . . . of the New Hampshire

Constitution.” Bleish v . Moriarty, N o . 11-cv-162-LM,

, at *2 (D.N.H. Dec. 9, 2011). Thus, it is impossible to

say what the elements of the claim(s) in Count VI might b e .

Without any guidance from Farrelly on this question, the

court presumes that if the New Hampshire Supreme Court were to

recognize a constitutional tort arising out of Part I , Article

1 9 , of the New Hampshire Constitution, which prohibits

81 unreasonable searches and seizures, the elements of such a tort

would bear a strong resemblance to the elements of false

imprisonment. Thus, defendants’ immunity from liability for the

claims stated in Count V also protects them from Farrelly’s

Article 19 claim, presuming that such a claim even exists.

Defining the contours of a constitutional tort arising out of

Part I , Article 2 2 , which guarantees freedom of speech, is an

even more difficult task, given the lack of any cognate common-

law claim. Presuming that such a claim, if it exists, would

bear a strong resemblance to the federal constitutional claim

stated in Count I I , the qualified-immunity analysis that

protects Officer Pichler and L t . Carroll from liability on Count

II would also serve as the basis for granting them official

immunity from an Article 22 claim. The City, in turn, would be

protected by vicarious official immunity. Accordingly, all

three defendants are entitled to judgment as matter of law on

Count V I .

4 . Count VIII: Negligence

In Count VIII, which identifies the City as the defendant,

Farrelly claims:

The action of Defendant Concord in failing to educate the individual Defendants in regard to a decision of the New Hampshire Supreme Court declaring a section of the Criminal Harassment Statute unconstitutional more than three years prior to Plaintiff’s arrest, and in

82 failing to train the Defendants in the need to consult New Hampshire Supreme Court annotations contained in the New Hampshire Criminal Code Annotated when enforcing a criminal statute, resulted in the individual Defendants causing the Plaintiff’s illegal arrest.

Second Am. Compl. (doc. n o . 40-1) ¶ 4 3 .

Defendants argue that the City is entitled to summary

judgment on Count VIII because: (1) there was probable cause for

Farrelly’s arrest, which renders the arrest lawful under RSA

594:13; (2) it is entitled to immunity under RSA 507-B:5; (3) it

is entitled to vicarious official immunity; and (4) it is

entitled to discretionary-function immunity. With regard to RSA

594:13, Farrelly contends that Officer Pichler did not have

probable cause to arrest him for violating RSA 644:4, I ( b ) , and

he further contends that defendants are not entitled to any of

the immunities they claim. Defendants’ fourth argument is

meritorious.

Discretionary-function immunity, which protects both the

state, see Ford v . N.H. Dep’t of Transp.,

8 4 , 294

(2012), and municipalities, see Tarbell Adm’r, Inc. v . City of

Concord,

7 8 , 683 (2008), “seeks to ‘limit judicial

interference with legislative and executive decision-

making,’”

(quoting Schoff v . City of Somersworth,

(1993)). “Policy decisions . . . which ‘involve[ ] the

consideration of competing economic, social, and political

83 factors’ are precisely the type of municipal planning that

discretionary function immunity seeks to protect.” Tarbell,

(quoting Mahan v . N.H. Dep’t of Admin. Servs.,

4 7 , 750 (1997); citing Gardner v . City of Concord,

(1993)). In Everitt, the New Hampshire Supreme

Court elaborated:

In assessing whether the discretionary function immunity exception applies in any given case, we “distinguish between planning or discretionary functions and functions that are purely ministerial.” Hacking [v. Town of Belmont], 143 N.H. [546,] 549 [(1999)] (quotation omitted); see Gardner,

. “We have refused to adopt a bright line rule to determine whether conduct constitutes discretionary planning or merely the ministerial implementation of a plan.” Hacking, 143 N.H. at 549-50. Rather, recognizing that the distinction is “sometimes blurred,” Gardner,

5 7 , we adopted the following test to discriminate between the different functions:

When the particular conduct which caused the injury is one characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities should remain immune from liability.

It is not simply the exercise of a high degree of discretion and judgment that distinguishes immune acts or omissions from those that are not; the discretion or judgment must attach to decisions requiring consideration of public policy or planning to be protected. See Mahan v . N.H. Dep’t of Admin. Services,

4 7 , 750 (1997). In particular, we distinguish between “policy decisions involving the consideration of competing economic, social, and political factors” and “operational or ministerial decisions required to implement the policy decisions.”

84

Immunity extends only to decisions, acts and omissions for which attaching liability would permit judicial second-guessing of the governing functions of another branch of government. See id. at 749-50.

(parallel citations omitted).

In his objection to the application of discretionary-

function immunity, Farrelly argues that “[n]one of the decisions

challenged in this case, [including] the failure of the City to

update the officers on changes in the law, or how to utilize the

legal text they were given encompass any discretion.” Pl.’s

Mem. of Law (doc. n o . 3 8 - 1 ) , at 16-17. Farrelly is mistaken.

First of all, it is not entirely accurate to say that the

City failed to update Officer Pichler and L t . Carroll with

regard to the Pierce decision. It is undisputed that the

officers were provided with an edition of the New Hampshire

criminal code that included an annotation describing the

decision in Pierce. What Farrelly is actually alleging is that

the City had a duty to do something more than that. But, with

respect to training its police officers, any municipality faces

all manner of fiscal and other constraints when determining how

much training to provide its officers, how to provide that

training, and what topics to cover. Those are policy decisions

concerning the allocation of municipal resources, and such

85 decisions are the heartland of discretionary-function immunity.

That doctrine exists for the very purpose of precluding courts

from engaging in activities such as setting the curricula and

prescribing the teaching methods that municipalities should use

when training their police officers.

Because the City is entitled to discretionary-function

immunity for its decisions about how to train its police

officers, the City is entitled to judgment as a matter of law on

Count VIII.

Conclusion

For the reasons detailed above, Farrelly’s motion to amend,

document n o . 4 0 , is granted, and defendants’ motion for summary

judgment, document n o . 3 6 , is granted in part and denied in

part. This case now consists of Count V , Farrelly’s claim for

false imprisonment under the common law of New Hampshire.

Defendants are entitled to judgment as a matter of law on all of

Farrelly’s other federal and state claims. Finally, while

defendants’ motion for summary judgment was pending, Farrelly

moved to certify a question of law to the New Hampshire Supreme

Court. Because the court has construed the statute that is the

subject of Farrelly’s motion, and has construed it in a way that

86 is favorable to Farrelly, his motion to certify a question of

law, document n o . 4 6 , is denied as moot.

SO ORDERED.

LandyaMc(?af/c erty United Su&^es Magistrate Judge

October 1 , 2012

cc: Charles P. Bauer, Esq. H . Jonathan Meyer, Esq. Erik Graham Moskowitz, Esq.

87