Farrelly v. City of Concord

• Decision Date: 23 December 2015
• Docket Number: No. 2014–0480,2014–0480
• Citation: 130 A.3d 548,168 N.H. 430
• Parties: John FARRELLY v. CITY OF CONCORD & a.
• Court: New Hampshire Supreme Court

168 N.H. 430

130 A.3d 548

John FARRELLY

v.CITY OF CONCORD & a.

No. 2014–0480

Supreme Court of New Hampshire.

Argued: June 4, 2015

Opinion Issued: December 23, 2015

Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief and orally), for the plaintiff.

Gallagher, Callahan & Gartrell, P.C., of Concord (Samantha D. Elliott on the brief and orally), for the defendants.

American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette on the brief), and Nixon, Vogelman, Barry, Slawsky & Simoneau, P.A., of Manchester (Lawrence A. Vogelman on the brief), for American Civil Liberties Union of New Hampshire and Gay & Lesbian Advocates & Defenders, as amicus curiae.

LYNN, J.

The plaintiff, John Farrelly, appeals an order of the Superior Court (Smukler, J.) granting summary judgment in favor of the defendants, Concord police officers Walter Carroll and Eric Pichler and the City of Concord (city), on the basis that the defendants are entitled to official and vicarious immunity. This case presents the question of whether our decision in Everitt v. Gen. Elec. Co., 156 N.H. 202, 932 A.2d 831 (2007) applies to intentional torts. We conclude that it does and that the language set forth in Huckins v. McSweeney, 166 N.H. 176, 90 A.3d 1236 (2014) must be interpreted consistently with the standard articulated in Everitt. Although we find this to be a close case, we ultimately conclude that the trial court did not err by granting summary judgment to the defendants, and accordingly, we affirm.

I

The record before the trial court for summary judgment purposes supports the following facts. After living with the plaintiff for approximately three years, the plaintiff's girlfriend and her daughter moved out in November 2008. On February 16, 2009, the plaintiff sent his ex-girlfriend an e-mail titled "WHY ARE YOU SO MEAN TO [DAUGHTER]?" The ex-girlfriend responded the next day and told the plaintiff to stop contacting her or she would go to the police. The plaintiff sent three e-mails on February 18. The first, sent at 6:06 p.m., said "HAPPY 30TH BIRTHDAY A DAY EARLY. I hope you like your new piercings, just wait until [daughter] sees them. What were you thinking of??? You are a Mother for God's sakes." The second e-mail, which the plaintiff sent at 7:29 p.m., said, "SO I HEAR EVERYONE AT THE HOSPITAL SAW YOUR NEW NIPPLES PIERCINGS. WHY HAVE YOU TURNED INTO SUCH A TRAMP? [ ] WHAT IS [DAUGHTER] GOING TO THINK OF THEM?" The third e-mail, sent at 8:36 p.m., again referenced the piercings and also referred to the fact that the plaintiff was contemplating filing a civil suit against the ex-girlfriend. The e-mail ended with, "HAVE A[N] AWFUL LIFE AND HOPEFULLY [DAUGHTER] DOESN'T GROW UP TO BE LIKE YOU." On February 21, the plaintiff sent a lengthy e-mail titled "HAPPY 30TH YOU LYING CHEATING HERPES CARRYING JEZEBEL." In the e-mail, the plaintiff called his ex-girlfriend a "little slut" and described, in crude detail, sexual acts between the ex-girlfriend and other men. In this e-mail, the plaintiff also said that he would come to the ex-girlfriend's birthday party and tell everyone that she gave him herpes and stole $100,000 from him.

After receiving the last e-mail, the ex-girlfriend went to the Concord police station. She first spoke with Lieutenant Carroll, who assigned the case to Officer Pichler. Pichler interviewed the ex-girlfriend, who gave him the e-mails and told him that "she had been receiving repeated communications from her ex and that they were beginning to concern her and scare her and she was worried for her safety and the safety of her daughter." Pichler came to the conclusion that if the facts she stated were true, there was evidence of a crime being committed. To obtain more information, Pichler and another officer went to the plaintiff's residence to speak with him. The plaintiff admitted that he sent the e-mails despite having been told by his ex-girlfriend and her father not to do so. He told the officers that he did not mean what he said and that he would not go to his ex-girlfriend's birthday party, but he also stated that he would continue to contact her.

Pichler and Carroll agreed that the plaintiff had committed the crime of harassment. Pichler believed that there was probable cause to arrest him, pursuant to RSA chapters 173–B and 594. See RSA 173–B:10, II (2014); RSA 594:10 (Supp.2014). Because the officers also believed that the crime had occurred or continued to a period within the past 12 hours,¹ they arrested the plaintiff without a warrant. See RSA 594:10, I(b). At the time, Pichler was unaware that he could arrest without a warrant only if the plaintiff's conduct constituted a credible present threat to his ex-girlfriend's safety. See RSA 594:10 ; RSA 173–B:1, I (Supp.2014). During his deposition, Pichler stated that the plaintiff was "probably not" a present threat to his ex-girlfriend's safety at the time of the arrest. However, based on the e-mails and the ex-girlfriend's statements, which were corroborated by the plaintiff, Pichler thought that an arrest was mandatory.

Carroll and Pichler drafted the criminal complaint against the plaintiff. They consulted the New Hampshire Criminal Code Annotated 2008–2009 edition and discussed RSA 644:4, I(b) and RSA 644:4, I(f). See RSA 644:4 (Supp.2014). It is unclear when they discussed the statute—before or after arresting the plaintiff—but the timing of their discussion is not dispositive. They decided to charge the plaintiff under subparagraph (f) because Carroll believed it more closely reflected the facts of the case. In the book that the officers used, the case annotations to the statute indicated that subparagraph (f) had been declared unconstitutional years earlier. See State v. Pierce, 152 N.H. 790, 887 A.2d 132 (2005). Neither officer noticed the annotations. Weeks later, the county prosecutor informed Pichler that RSA 644:4, I(f) was unconstitutional, and, ultimately, the charges against the plaintiff were dropped.

During his deposition, the plaintiff testified that after he was arrested Pichler said to him: "This is what you get for f* * * * *g with a 30–year veteran of the Concord, PD." The ex-girlfriend's father and uncle are retired Concord police officers. Carroll had worked with the ex-girlfriend's father and had known her since she was a child.

II

The plaintiff brought claims against the defendants, the City of Concord (city), Officer Pichler, and Lieutenant Carroll, for: (1) malicious prosecution (count I); (2) false imprisonment (count II); (3) violation of his rights of free speech and against unreasonable searches and seizures under the New Hampshire Constitution (count III); and (4) negligence (count IV).² The defendants moved for summary judgment, arguing that: (1) the city was entitled to immunity under RSA 507–B:5 (2010); (2) the defendants were entitled to official and vicarious immunity on counts I, II, and III; (3) RSA 594:13 (2001) barred the claims because there was probable cause to arrest the plaintiff under RSA 644:4, I(b); and (4) a warrant was not required under RSA 594:10 because there was probable cause to arrest the plaintiff under RSA 173–B:1. While the court's ruling was pending, we decided Huckins v. McSweeney, 166 N.H. 176, 90 A.3d 1236 (2014), which prompted the plaintiff to file a memorandum of supplemental authority before the trial court rendered its decision.

The court rejected the defendants' arguments based upon RSA 594:13 and RSA 594:10, and found that the warrantless arrest was unlawful. However, the court ruled that the defendants were immune from suit. The court granted summary judgment to the city on count IV (negligence) because it concluded that the exception to municipal immunity found in RSA 507–B:2 (2010) does not apply, as the claim asserted therein has no nexus to cars or premises. See Dichiara v. Sanborn Reg'l Sch. Dist., 165 N.H. 694, 696–97, 82 A.3d 225 (2013).

The plaintiff argued that RSA 507–B:2 and :5 could only "provide immunity to municipalities for any intentional tort committed by a municipal employee under the same terms and conditions as RSA 541–B:19 provides sovereign immunity to the State for any intentional tort committed by a State employee." Huckins, 166 N.H. at 182, 90 A.3d 1236. The trial court ruled that it did not need to decide the issue of statutory immunity under RSA 541–B:19 (2007) (and, derivatively, that statute's required parity with RSA 507–B:2 and :5 ) because the individual defendants had official immunity and the city had vicarious immunity. In so ruling, the trial court presumably held the view that official immunity under the common law is distinct from, and operates independently of, statutory immunity provided by RSA chapter 507–B, and is not subject to the same "terms and conditions" that we articulated in Huckins.

Under the common law doctrine of official immunity, "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) discretionary, rather than ministerial; and (3) not made in a wanton or reckless manner." Everitt v. Gen. Elec. Co., 156 N.H. 202, 219, 932 A.2d 831 (2007). The trial court found there was "no question" the officers' acts were within the scope of their official duties and completed while in the course of their employment, and that the acts were discretionary. The court ruled that while the officers' actions "may be deemed negligent," they were "not wanton or reckless." Viewed in the light most favorable to the plaintiff, the court found that the only evidence of recklessness was Officer Pichler's comment to the plaintiff after he was arrested. However, the court found that the comment was made "in the context of Pichler's belief that he had the lawful authority to arrest [the plaintiff] without a warrant." The court further found that "Pichler's hindsight concession that he did not have...