2012-0440, James A. Conrad v. New Hampshire Department of Safety & a.

evidentiary issues. We affirm. occurred on November 28, 2007. The defendants cross - appeal, raising rights pursuant to 42 U.S.C. § 1983 (2012), seeking damages for events that Myrdek, for false imprisonment, and against Myrdek for a violation of his civil Department of Safety (NHDS) and New Hampshire S tate Police Lieutenant Mark immunity. The plaintiff brought suit against both defendants, New Hampshire verdict on grounds that the y were entitled to sovereign, official, and qualified Superior Court (Smu kler, J.) granting the defendants’ motion for a directed BASSETT, J. The plaintiff, James A. Conrad, appeals an order of the

attorney general, on the brief and orally), for the defendant s. Michael A. Delaney, attorney general (Laura E. B. Lombardi, assistant

C. Kevin Leonard on the brief, and Mr. Douglas orally), for the plaintiff. D ouglas, L eonard & G arvey, P.C., of Concord (Charles G. Douglas, III and

NEW HAMPSHIRE DEPART MENT OF SAFETY & a.

No. 2012 - 440 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

patrols by her home after she and the plaintiff had argued over the telephone Depa rtment, informing him that the plaintiff’s wife had requested additional On November p. 2 26, Conte received a telephone call from the Laconia Police

still being sent to the marital home in Laconia and he was staying in Concord. restraining order prior to the incident on November p. 2 28, because his mail was household members.” The plaintiff testified that he was not aware of the intimidating or threatening the other party or his/her relatives or other home or the place of employment of the other party, a nd from harassing, to that decree, “E ach party [was] restrained and enjoined from entering the and his estranged wife, the court issued a temporary divorce decree. Pursuant On November 8, f ollowing a family court hearing attended by the plaintiff

himself or others.” p. 2 2007, after a counselor determined that he was “currently not a danger to Assistance Program. The plaintiff returned to full duty in early November of his service weapon and police cruiser, and referred to the Employee occurred; nonetheless, he was placed on administrative leave. He was relieved bathroom with his service weapon. T he plaintiff denied that the incident had called the state police, claiming that the plaintiff had locked himself in the In October, the plaintiff’s wife filed for divorce. That same month, she

into his work life.” cautioned him t o “be scrupulously careful about not bringing his personal life be breathing.” On Monday September p. 2 24, Booth met with the plaintiff and accompanied by another man, the plaintiff told him that he was “f - ing lucky to parking lot to wait for her; and that, when she returned to the parking lot plaintiff had his wife’s car to wed from the school parking lot; he ret urned to the p rofessional standards u nit. The report included the following facts: that the Colonel Frederick Booth, and to Myrdek, c ommander of the s tate p olice The report of this incident was provided to the director of the state police,

commander, informing him of these events. approximately three o’clock in the morning from the plaintiff’s troop plaintiff ’s unit commander, Captain Russell Conte, received a telephone call at unit, to search for his wife after her car was located behind a school. T he vehicle. Thereafter, he requested state police assistance, including the canine police officers when speeding through the t own of Meredith in his personal September p. 2 22, after the plaintiff reported his wife missing, he faile d to stop for In September 2007, the plaintiff was experiencing marital problems. On

Unit. He had been employed as a state trooper since 1993. the plaintiff was a state trooper working as a detective in the Major Crimes The following facts are supported by the record. On November p. 2 28, 2007,

I. Facts p. 3 3

[his] wife regarding [his] actions and her attorney.” The plaintiff responded that regarding [the plaintiff’s] pending divorce and comments [he] may have made to allegations included “[t]he possible violation of a temporary court order assist in determining whether to impose administrative discipline”). These must be given, “inform[ing] the accused that the purpose of questioning is to (before any interview of a state trooper may take place a “Garrity Warning” Jersey, p. 3 3 85 U.S. 493 (1967); Appeal of Waterman, 154 N.H. 437, 442 (2006) the allegations that were the subject of the investigation. See Garrity v. New administrative interview and provided him with a “Garrity Warning” containing approximately 2:05 p.m. Myrdek informed him that he was subject to a n state police headquarters. The plaintiff arrived at Myrdek’s office at when he was contacted by NHDS staff and told to report to Myrdek’s office at On November 28, the plaintiff was a ttending a n off - site training session

investigation and to have Myrdek speak with the plaintiff the following day. attorney lived – Co nte, Forey, and Myrdek decided to open an internal affairs and that the plaintiff ha d allegedly commented to her that he knew where her temporary divorce decree, that she was concerned about the plaintiff’s welfare, including that the plaintiff may have been in her residence in violation of the Based upon information communicated to Conte by the plaintiff’s wife – Major Susan Forey, the head of the Field Operations Bureau, and Myr dek. Conte was “very concerned” and immediately discussed the matter with

prohibiting the plaintiff from entering his wife’s residence. attorney who confirmed that the temporary divorce decree included a provision around.” Following this conversation, Conte spoke by telephone with the wife’s had eras ed messages on the answering machine and “mov ed some stuff thought the plaintiff had been in her res idence the night before, and that he asking where the plaintiff was. She told Conte, among other things, that she The next day, Conte recei ved a telephone call from the plaintiff’s wife,

to Booth. superior to advise him of the conversation so that his superior could pass it on Accordingly, a s soon as the plaintiff left his office, Conte went to speak with his the plaintiff’s explanation at “face value,” he also had “reservations.” retirement funds to split with his wife. Although Conte testified that he took to him leaving his children, movin g out of state, and withdrawing his Conte about his “going to hell” statement, the plaintiff explained that it referred seek the advice of an attorney before making a final decision. When asked by plaintiff was only eight months from full retirement, Conte encouraged him to as being “disheveled,” “emotional,” and “angry about his wife.” Given that the was thinking of resign ing and “going . . . away.” Conte described the plaintiff Later on November 26, the plaintiff visited Conte’s office and told him he

was “going to hell for what [he wanted] to do.” the previous night. During th at phone call, the plaintiff told his wife that he p. 4 4

door. Because the door opened in, Myrdek stepped out of the way so th e the plaintiff to stay. The plaintiff reached under Myrdek’s arm and opened the the plaintiff and the closed door, put his hand on the doorframe, and ordered When the plaintiff attempted to leave the off ice, Myrdek stepped between

making rational decisions. down. Myrdek testified that the plaintif f appeared to be out of control and not responded by telling him that he couldn’t leave, and that he needed to calm want your badge.” The plaintiff told Myrdek that he was leaving. Myrdek said, “Jimmy, Jimmy, Jimmy, calm down. I don’t want your gun and I don’t “[H] ere’s my gun and here’s my badge, I quit.” Myrdek put his arms up and colonel. I’m leaving, I quit.” T he plaintiff then opened up his jacket and said, would not accept it either. The plaintiff respond ed, “W ell, F you and F the resignation letter. Myrdek refused to accept it and told the plaintiff the c olonel The plaintiff then told Myrdek he was quitting and he tried to hand him a

allegations, the plaintiff became enraged. going to let him leave headquarters until t he plaintiff spoke with him about the find other union representation. When Myrdek told the plaintiff he was not interview was going to be conducted that day, so the plaintiff would need to going to speak to him without Donchess present. Myrdek responded that the to occur that day, their voices rising. The plaintiff told Myrdek that he was not door. The plai ntiff and Myrdek argued about whether the interview was going Myrdek directed the plaintiff back to Myrdek’s office and asked him to close the that the interview would need to be rescheduled to Thursday or Friday. the hall. The plaintiff informed Myrdek that Donchess was not available and Myrdek’s office to report on his efforts to contact Donchess, he met Myrdek in S ometime between 2: p. 4 45 and 3:00 p.m., as the plaintiff was returning to

for union representation. The plaintiff was still a gitated. time. The plaintiff left M yrdek’s office again to continue to make arrangements present for the interview if he could get there within a reasonable amount of Donchess. Myrdek agreed that it would be a good idea to have Donchess suggested that the plaintiff seek the assistance of the union attorney, J ames that he thought the issues were beyond his ability as a representative an d estranged wife, and that immediate action had to be taken. LaPorte indicated plaintiff h ad violated a restraining order and made t h reats against his with LaPorte. Myrdek explained that there had been an allegation that the Myrdek’s office at approximately 2:30 p.m. and Myrdek spoke on the telephone LaPorte, who in turn asked to speak to Myrdek. The plaintiff returned to The plaintiff contacted a union representative, T rooper Chris topher

arrangements. wanted union representation and Myrdek allowed him to leave to make such because I wasn’t.” The plaintiff was agitated. The plaintiff stated that he the allegations we re “bullshit” and that his wife “can’t prove I was in the house, p. 5 5

the incident. custody of the plaintiff and handle any criminal charges that might result from judgment,” the decision was made to have the Concord Police Department take C ommissioner John Barthelmes, and, “[i] n order to give [the plaintiff] a fair them what had happened. Booth then met with D epartment of S afety For ey met with him and an attorney from the department of safety and told When Booth returned to police headquarters at approximately 4:30 p.m.,

vulgarities. he had been killed in Iraq. He called his wife on the telephone a nd yelled jump out a window, and talked about committing suicide. He stated he wished thereby forcing another officer to shoot him. At one point he threatened to life was not worth living. The plaintiff said he was going to take Myrdek’s gun, his career was over. He expressed hostility toward his wife, and he said that hours. During that time, t he plaintiff was very emotional, crying, and saying it out the door. The plaintiff remained there for approx imately the next two Inside the office, the officers removed the plaintiff’s weapon and handed

building. the door for “everyone’s safety,” including the civilian personnel working in the and Myrdek went back into Myrdek’s office, Fo r ey positioned officers outside back into the office and wait for the union representatives. When the plaintiff relaxed and Myrdek slowly released his hold on him and asked him to come to overpower him and tha t she would have to “tase” him. The plaintiff slowly plaintiff was so angry, Forey thought that the officers were not going to be able officers continued to struggle, Forey put her hand on her taser. Because the happening and saw the plaintiff, Myrdek, and Liebl in a “scuffle.” As the three Forey, hearing “alarming raised voices,” left her office to see what was

struggled with the plaintiff. force. Myrdek then grabbed the plaintiff in “a bear hug,” and he and Liebl down the hallway toward an exit door, he punched the door with considerable [the plaintiff] was very, very agitated, very angry.” As the plaintiff continu ed plaintiff’s “demeanor, the words, the profanity, the crudeness,” that “clearly f *** ing done” and walked past Myrdek. Liebl testified that because of the Myrdek was taking the wife’s side, referred to her as a “c ** t,” said he was “all because he had heard loud arguing in Myrdek’s office. The plaintiff asked why Liebl, whose office was behind Myrdek’s, was watching from his office doorway front of him, ordering him to go back in his office and sit down. Lieutenant Myrdek followed the plaintiff into the common area and again stood in

Myrdek into a co mmon area. plaintiff said, “I f ***i ng quit . . . I’m all done. F *** you,” and walked past continued to urge the plaintiff to calm down and ordered him to sit down. T he plaintiff could open the door, but then stepped back into the doorway. Myrdek p. 6 6

further, that the officers “had information that the plaintiff told his wife he Ms. Conrad that the plaintiff. . . [had] enter [ed] Ms. Conrad’s home” and, and Myrdek “received information from the Laconia police department and from reasonably believed that the plaintiff violated a protective order” because Conte common area.” The court also foun d that the NHDS officers “could have plaintiff beca me extremely upset and punched a door hard before he left the interview process, most of which was directed toward his wife,” and “the divorce,” “[t]he plaintiff used highly inappropriate language throughout the officers knew that the plaintiff was having an extremely difficult time with the “had a reasonabl e basis to believe that their conduct was lawful” beca use “[t]he foun d that the NHDS officers, acting within the scope of their employment, Viewing the record in the light most favorable to the plaintiff, the court

imprisonment claim. immunity, and that Myrdek was entitled to official immunity, on the false T h e trial court nonetheless conclud ed that NHDS was entitled to sovereign the plaintiff met his burden of proving the elements of false imprisonment.” claim; indeed, at this point they cannot do so because the jury has found that attack the plaintiff’s ability to satisfy the elements of a false imprisonment verdict. I n its order the court noted that “[t]he defendants’ motion does not The trial court thereafter ruled on the defendants’ motion for a directed

fault to NHDS and thirty percent to Myrdek. damages on the false imprisonment claim, attributing seventy percent of the jury re turned a verdict for the plaintiff, awarding $1.5 million in compensatory jury return a verdict for the plaintiff, it would rule on the immunity issues. The closing arguments and jury instructions, the trial court stated that, should the immunity. The trial court took the motion under advisement. Following immunity, and the section 1983 claim against Myrdek was barred b y qualified claim against NHDS and Myrdek was barred by sovereign and official of the plaintiff’s case. The defendants argued that the false imprisonment imprisonment claim. T he defe ndants moved for a directed verdict at the close determination, it held a nine - day jury trial in May 2012 on the plaintiff’s false 1983). Although t he trial court reserved the section 1983 claim for its own imprisonm ent and against Myrdek for a violation of 42 U.S.C. § 1983 (section The plaintiff brought suit against NHDS an d Myrdek for false

was subsequently admitted to the New Hampshire Hospital. custody and transported him by ambulance to Concord H ospital. The plaintiff officer and then turn the gun on himself. Concord police took the plaintiff into police officers, saying that he was going to take the officer’s gun and shoot the he “exploded,” was “screaming and crying,” and threatened one of the Concord guard down at the hospital. When the plaintiff wa s told he was under arrest, gravity of the situation and warn them, for their own safety, not to let their Forey met with them when they entered the building to apprise them of the The Concord police arrived at headquarters at approximately 5:30 p.m. p. 7 7

appeal. we affirm the trial court’s ruling s on immunity, we need not address th e cross erred in granting the motion. The defendants cross - appeal; however, b ecause standard when it ruled on the defendants’ motion for a dir ected verdict, and The plaintiff argues that the trial court fail ed to apply the correct

II. Issues on Appeal

this appeal followed. omitted.) The trial court denied the plaintiff’s motion for reconsideration, and enforcement officer,” Myrdek was entitled to qualified immunity. (Quotation given “Myrdek’s concomitant and commingled roles of employer and law seizures comport with the Fourth Amendment,” the trial court concluded that, enforcement officers face in determining whether particular searches or After observing that courts “consistently recognize the difficulties law that Myrdek “had a rational basis for his concern about Ms. Conrad’s safety.” the plaintiff’ s right to be free from confinement was not “sufficiently clear,” and cause, for several hours.” T he court reasoned that, under the circumstance s, Myrdek intentionally or recklessly restrained the plaintiff, without probable right to be free from unreasonable searches and seizures in that [Lieutenant] plaintiff’s writ alleges that [Lieutenant] Myrdek viola ted his Fourth Amendment immunity on the plaintiff’s section 1983 claim. The court noted that “[t]he Finally, the trial court found that Myrdek was entitled to qualified

wanton or reckless. basis to believe that his conduct was lawful,” his conduct could not be deemed officers, acted. . . within the scope of his employment,” and “had a reasonable because it had already determined that Myrdek, “in conjunction with his fellow in a wanton or reckle ss manner.” RSA 99 - D:1. The court reasoned that their official duty while in the course of their employment for the state and not protected from “civil actions arising from acts committed within the scope of unde r RSA 99 - D:1 (2013), which provides that state officials and employee s are In addition, t he court found that Myrdek was entitled to official immunity

NHDS was entitled to sovereign immunity. decision was not unreasonable.” Accordingly, the trial court concluded that two - hour period to allow the officers to deliberate and come to a referral to treat the matter with the appropriate priority,” under the circumstances “the superiors and that because there was “no evidence that any participant failed The court also found that the officers acted reasonabl y in contacting their hi s behavior and statements, including his threats to commit “suicide by cop.” officers believed tha t they were justified in detaining the plaintiff based upon of the plaintiff at state police headquarters, the trial court foun d that the would ‘ go to hell ’ for what he ‘was about to do. ’” As to the two - hour detention p. 8 8

Forsyth, 472 U.S. 511, 526 (19 p. 8 85) (quotation omitted). Given that “the purpose and deterrence of able people from public service,” are also avoided. Mitchell v. of officials from their governmental duties, inhibition of discretionary action, “include the general costs of subjecting officials to the risks of trial – distraction collateral consequences of potential liabil ity and of mounting a defense, which Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009). Further, the (“Immunity ordinarily should be decided by the court long before trial.”); 685 (2009) (q uotation omitted); see Hunter v. Bryant, 502 U.S. 224, 228 (1991) including avoidance of disruptive discovery.” Ashcroft v. Iqbal, 556 U.S. 662, resolved before trial, thereby freeing officials “from the concerns of litigation, than a mere defense to liability, if at all possible, immunity claims are to be Because immunity provides public officials immunity from suit, rather

Id. (quotation and brackets omitted).

who may now be acting largely on the basis of hindsight. less qualified than he to pass judgment in a discerning fashion or others, who may have no experience in the a rea and may be much the same time is held responsible according to the judgment of position in which he is required to exercise his judgment and at It would be manifestly unfair to place any public official in a

omitted). the fear of personal liability and vexatious suits.” Id. (quotation and brackets exists to preserve independence of action without deterrence or intimidation by performance of their duties.” Id. at 215 (quotation omitted). “A genuine need personal liability, which might deter independent actio n and impair effective “The goal of official immunity is to protect public officials from the fear of

lawsuits alleging common law torts, such as negligence.” Id. brought under 42 U.S.C. § 19 p. 8 83.” Id. Official immunity “shields against “shields against lawsuits alleging constitutional violations, such as claims within the scope of their government employment.” Id. Qualified immunity immunity and official immunity provide immunity for wrongful acts committed personal liability for public officials and employees, the doctrines o f qualified officers and employees.” Id. at 209 (quotations omitted). “With respect to without its consent, and shields it from liability for torts committed by its “Sovereign immunity protects the State itse lf from suit in its own courts

liability so that our government can govern.” Id. at 210 (quotation omitted). essential, fundamental activities of government must remain immune from tort N.H. 202, 20 p. 9 9 (2007). Immunity is based upon the recognition that “certain for injury allegedly caused by official conduct.” Everitt v. Gen. Elec. Co., 156 statutory law to protect governmental entities and public officials from liability qualified. “Various concepts of immunity exist under both common law and T his case involves three types of immunity: sovereign, official, and 9

construed in the light most hospitable to the party that prevailed at trial,” and qualified immunity is pressed after a jury verdict, . . . the evidence must be verdict.” He asserts that in a Fourth Amendment case “[w]hen a defense of review required when conducting a qualified immunity inquiry after a jury T he plaintiff argues that the trial court “violated the correct standard of

I V. Legal Standard – Qualified Immunity

hospitable to the party that prevailed at trial.” (q uotation omitted)). pressed after a jury verdict, the evidence must be construed in the light most Manc hester, 151 N.H. 30, 48 (2004) (“When a qualified immunity defense is standard of review.” Id. (quotation and brackets omitted); see Porter v. City of before it. . . . [T] he procedural posture. . . does not greatly influence the difference that we review the qualified immunity question after trial instead of Wilson v. City of Boston, 421 F.3d 45, 53 - 54 (1st Cir. 2005). “[I]t makes little light most favorable to [the plaintiff], and decide legal questions de novo.” In reviewing the qualified immunity ruling, “we construe the facts in the

508, 525 (1st Cir. 200 p. 9 9). N.H. 674, 684 (2007); see Gu illemard - Ginorio v. Contreras - Gó mez, 585 F.3d legal question, which we review de novo. Snelling v. City of Claremont, 155 Mallett & Mallett, 163 N.H. 202, 207 (2012). Likewise, q ualified immunity is a 134 N.H. 562, 566 (1991), subject to de novo review, s ee, e.g., In the Matter of Sovereign immuni ty is a jurisdictional question, LaRoche, Adm’r v. Doe,

essentially the same, and they are gove rned by identical standards”). “motions for directe d verdict and judgment notwithstanding the verdict are 388, 3 p. 9 93 (2006) (explaining that although made at different points in a trial, Dillman, 150 N.H. at 434; see Hall v. Dartmouth Hitchcock Med. Ctr., 153 N.H. that the trial court did not commit an unsustainable exercise of discretion.” on a motion for a directed verdict “when the record supports the conclusion Ed uc. Dev. C tr., 157 N.H. 220, 226 (2008). We will uphold a trial court’s ruling any relief on the evidence presented.” Clark & Lave y Benefits Solutions v. verdict unless it can affirmatively determine that the plaintiff is not entitled to judge the credibility of witnesses and should deny the motion for a directed College, 150 N.H. 431, 434 (20 03). The court “may not weigh the evidence or conclude that the non - moving party is entitled to any relief.” Dillman v. N.H. therefrom most favorably to the non - moving party, that no rational juror could determine s, after considering the evidence and construing all inferences “A trial court may grant a motion for a directed verdict only if it

III. Standard of Review

omitted). erroneously permitted to go to trial.” Everitt, 156 N.H. at 221 (quotation of immunity is to operate as a bar to a lawsuit,” it is “effectively lost if a case is p. 10 10

secured by the Constitution and laws, shall be liable to the party thereof to the deprivation of any rights, privileges, or immunities citizen of the United States or other pe rson within the jurisdiction District of Columbia, subjects, or causes to be subjected, any regulation, custom, or usage, of any State or Territory or the Every person who, under color of any statute, ordinance,

Heights, 503 U.S. 115, 120 (1992). Section 1983 provides: of rights protected by the United States Constitution. Collins v. Harker civil remedy against any person who, under color of state law, deprives another grant ing a directed verdict on his section 1983 claim. Section 1983 provides a We first consider the plaintiff’s argument that the trial court erred in

V. Qualified Immunity as to Myrdek

error in the standard applied by the trial court. the trial record viewed in the light most favorable to the plaintiff.” We find no imprisonment, the trial court proceeded to “bas [e] its [immunity] analysis on plaintiff had met his burden at trial of proving the elements of false presented” during the jury trial. Accordingly, after explicitly noting that the because the plaintiff cannot prevail on the immunity issu e on the evidence Cir. 2002). T he trial court concluded that it “need not resolve this issue . . . functio n must be fulfilled by a jury.” Kelley v. LaForce, 288 F.3d 1, 7 n.2 (1st is a factual dispute underlying the qualifie d immunity defense or whether this has not clearly indicated whether the judge may act as fact - finder when there regarding claims of qualified immunity under federal law, “t he Supreme Court As the United St ates Court of Appeals for the First Circuit has observed

(Emphases omitted.) found that the Defendants reasonably believed that their conduct was lawful.” believe their conduct to be lawful, but rather whether the trial court could have not whether the jury could have found that the Defendants did not reasonably decide.” (Emphasis omitted.) Thus, they contend, “the question on appeal is favorable to the [p] lain tiff, the immunity question was for only the trial court to The defendants assert that “[w]hile the facts are considered in the light most could not have reasonably believed it was lawful to detain [him] is incorrect.” jury was instructed on the immunity issue and found that the defendants In response, t he defendants argue that the plaintiff’s “assertion that the

conducting the immunity analysis.” (Emphases omitted.) and, therefore, “the trial court is required to apply those findings of fact in determination of facts that should be controlling in the immunity analysis” verdict standard of review requires the trial court to give deference to the jury’s (emphasis and quotations omitted). According to the plaintiff, “[t]he post factual issue s,” quoting Jennings v. Jones, 499 F.3d 1, 7 (1st Cir. 2007) “deference should be accorded to the jury’s discernible resolut ion of disputed p. 11 11

nevertheless be unbearabl y disruptive.” Whitfield, 431 F.3d at 6 (quotation of their duties and from threats of liability which, although unfounded, may desire to shield public servants from undue interference with the performance those whose rights are infringed by state actors with an equally compelling doctrine “is a compromise that strives to balance the desire to compensate based on mixed questions of law and fact.” Id. (quotation omitted). T he government official’s error is a mistake of law, a mistake of fact, or a mistake “The protection of q ualified immunity applies regardless of whether the

v. Callahan, 555 U.S. 223, 23 1 (2009). distraction, and liability when they perform their duties reasonably.” Pe a rson power irresponsibly and the need to shield officials from harassment, interests – the need to hold public officials accountable when they exercise (1st Cir. 20 p. 11 11) (quotation omitted). The doctrine “balances two important reas onable person would have known.” Mlodzinski v. Lewis, 648 F.3d 24, 32 does not violate clear ly established statutory or constitutional rights of which a protects police officers “from liability for civil damages insofar as their conduct Whitfield v. Mel e ndez - Rivera, 431 F.3d 1, 6 (1st Cir. 2005). Q ualified immunity 42 U. S. C. § 1983 for infringing the constitutional rights of private parties.” officials acting under the color of state law who would otherwise be liable under “The doctrine of qualified immunity provides a safe harbor for public

2:45 p.m. qua lified immunity analysis to the third meeting beginning at approximately and then continued into the hallway.” (Emphasis omitted.) Thus, we limit our during his third meeting in Myrdek’s office, which began at 2:45 to 3:00 p.m., imprisonment.” Rather, he asserts that his “unlawful confinement started union representation – “are not and never were part of [his] claim of false p.m., when he returned to Myrdek’s office to report on his efforts to arrange at 2:05 p.m., when he received the Garrity warning, and at approximately 2:30 The plaintiff acknowledges that his first two encounters with Myrdek –

confinement. . . in violation of [his] constitutional rights.” interview prior to 3:00 p.m.. . . resulted in multiple instances of unlawful immediately.” Thus, he argue s, “Myrdek’s demand that [he] submit to an leave based on (1) his right to union representation, and (2) his right to resign refusal to recognize [his] right to discontinue [the] investigatory interview and investigation.” The plaintiff asserts that his claim “is based on [Myrdek’s] of forcing the plaintiff to participate in an employment - related internal unlawful and unreasonable seizure of the plaintiff in his office for the purpose According to the plaintiff, the claim against Myrdek is “based on his

proceeding for redress. . . . injured in an action at law, suit in equ ity, or other proper p. 12 12

Amendment right to be free from unreasonable seizure. without deciding, that Myrdek’s conduct violated the plaintiff’s Fourth plaintiff has “satisfied the first prong of the test.” Accordingly, we will assume, the Fourth Amendment.” On appeal, Myrdek likewise assume s that the that the plaintiff had established “a cognizable constitutional violation under For purposes of its qualifie d immunity analysis, the trial court assumed

presented are heavily fact - bound, minimizing their precedential value.” Id. parties is difficult to justify in cases where the constitutional questions (quot ation omitted). “This expenditure of resources by the courts and the have no effe ct on the outcome of the case.” Maldonado, 568 F.3d at 270 substantial expenditure of scarce judicial resources on difficult questions that “discussion of the first prong of the qualified immunity analysis will result in a U.S. at 236; see T olan v. Cotton, 134 S. Ct. 1861, 1866 (2014). I n some cases, first in light of the circumstances in the particular case at hand.” Pearson, 555 which of the prongs “of the qualified immunity analysis should be addressed Maldonado, 568 F.3d at 269 - 70. Courts may exercise discretion in deciding turn, it is not mandatory that courts follow the two - step analysis sequentially.” “[W]hile it is frequently appropriate for courts to answer each step in

granted.” Mlo d zinski, 648 F.3d at 28. conduct did not violate [the plaintiff’s] rights, then qualified immunity must be reasonable officer could have concluded (even mistakenly) that his or her violation of [his] rights, or the law was not clearly established, or an objectively Id. at 269 (citations omitted). “If even on plain tiff[’s] best case, there is no

violated the plaintiff [’s] constitutional rights. reasonable defendant would have understood that his conduct more concretely on the facts of the particular case and whether a of the alleged civil rights violation.. . . The other aspect focuses aspect of the analysis focuses on the clarity of the law at the time analysis that t he second step, in turn, has two aspects. One second, “clearly established” step of the qualified immunity It is clear from the Supreme Court’s description of the

violation. was “clearly established” at the time of the defendant’s alleged violation of a constitutio nal right; and (2) if so, whether the right (1) whether the facts alleged or sh own by the plaintiff make out a

Maldon ado, 568 F.3d at 268 - 69. Pursuant to that test, a court must decide: The qualified immunity inquiry is comprised of a two - part test. See

Briggs, 475 U.S. 335, 341 (1986). but the plainly incompetent or those who knowingly violate the law.” Malley v. and brackets omitted). Qualified immunity “provides ample protection to all p. 13 13

not be delayed.” available to [him] at the time, he reasonably believed that the interview should administrative interview.” Myrdek asserts that “[b]ased on the information attorney, as opposed to any other union representative, present at the support for his argument that [he] had an ‘a bsolute right’ to have the union (Emphasis omitted.) Myrdek argues that the plaintiff “provides no leg al which is lawful and appropriate behavior under the defendants’ own rules.” to answer questions at 3 p.m. without his union representative being present counsel he was legally entitled to.” The plaintiff a s s erts that he “simply refused unlawfully compel [him] to submit to a no - notice interview without the union basis to confine [him] to his office,” and that Myrdek’s “only ‘purpose’ was to began at 2:45 to 3:00 p.m., “Myrdek did not have any objectively reasonable The plaintiff argues that, during his third meeting with Myrdek, which

U.S. 800, 818 (1982). reasonableness.” Mlodzinski, 648 F.3d at 33; see Harlow v. Fitzgerald, 457 U.S. 194, 206 (2001). “This test imposes an objective standard of reasonable mistakes as to the legality of their actions.” Saucier v. Katz, 533 acted unlawfully, “Anderson still operates to grant officers immunity for violated the Fourth Amendment.” Id. Thus, even if an officer is found to have previously extended qualified immunity to officials who were alleged to have answer to this argument is that it is foreclosed by the fact that we have United States Supreme Court rejected this argument, stating: “T he short impossible “to say that one ‘reasonably’ acted unreasonably.” Id. at 643. T he intended only to protect reasonable official action” because, they asserted, it is unreasonably searched or seized – the protection of a qualified immunity alleged to have violated the Fourth Amendmen t – and thus necessarily to have Anderson, the plaintiffs argued that it was “inappropriate to give officials official’s conduct. Anderson v. Creighton, 483 U.S. 635, 638 - 39 (1987). In The linchpin of qualified immunity is the objective reasonableness of the

objectively reasonable. We disagree. trial court “simply ignored” the jury’s findings that Myrdek’s conduct was not [his] liberty.” (Emphas e s and quotation omitted.) The plaintiff argues that the to believe that there was any emergency at hand wh ich necessitated restraining detention”; and that “Myrdek did not have an objectively reasonable basis. . . presented an immediate danger of bodily harm to himself o r others prior to his circumstances presented “did not give rise to a reasonable suspicion that [he] not tainted by the defendants ’ sugg estion that it was “irrational”; that the imprisonment claim, it necessarily found: that his r esignation was valid and asserts that because the jury rendered a verdict in his favor on the false had a reasonable basis to believe that their conduct was lawful.” The plaintiff circumstances in this case “was not clearly established,” and that “the officers court determined that the p laintiff’s right to be free from confinement under the Under the second prong of the qualified immunity analysis, the trial p. 14 14

the events that had taken place in September regard ing the plaintiff’s actions of the third meeting with the plai ntiff o n November 28, Myrdek was: aware of obtain “an association or union representative in a timely manner.” At the time “compromised or unreasonably delayed” because of the member ’s failure to F urther, the policy expressly provides that the investigation not be

(quotations and citations omitted). the legal rules that were clearly established at the time it was taken”) “turns on the objective legal reasonableness of the action assessed in light of Anderson, 483 U.S. at 639 (expla ining that application of qualified immunity employee the right to request the union representative of one’s choice); see (declining to express opinion on whether New Hampshire law affords an his interview. Cf. Appeal of Exeter Police Ass oc., 154 N.H. 61, 64 (2006) his position that he was legally entitled to have the union attorney present a t of the member’s choosing, nor does the plaintiff cite any authority in support of mention in the standards of a right to specific representation by an individual representation” during the investigative interview. Howev er, t here is no action against him, the plaintiff had a right to “association or union reasonably believed that the interview with Myrdek might result in disciplinary Thus, under section 26 - E.4.5, C of the standards, assuming that the plaintiff

timely manner. obtain or provide an association or union representative in a of the Division member’s, association’s or union’s failure to investigation be compromised or unreasonably delayed because attendance at the interview. Under no circumstan ces will the arrangements to have an association or union representative in 2. The Division member is solely responsible for making

own account of the matter(s) under investigation. Division is free to in sist upon hearing the Division member’s convert the interview into an adversary proceeding. The unless requested to do so by the investigator and shall not representative shall not participate in the interview in any way with the Division member. The association or union representative’s role at the investigative interview is to consult disciplinary action against him. The association or union the member reasonably believes that the interview may result in investigative interview, if so requested by the member, whenever the right to association or union representation during an 1. Division members under administrative investigation shall have

“Division Member Rights and Responsibilities”: allegations of personnel misconduct.” Pursuant to section 26 - E.4.5, C, the procedure s applicable to “internal affairs investigatio ns concerning The state police “Professional S tandards of Conduct” (standards) set forth p. 15 15

. . ..

to do. through a number of scenarios that I was trying t o determine what him even more? Will I be able to calm him down? So I was going contemplating, at what point do I do this? Is this going to excite weapon if I had just removed the magazine. And I was weapon unserviceable. In other words, yo u couldn’t fire the that weapon by just removing the magazine, which w ould make the away from him. But I was contemplating maybe just disarming [I was] concerned about . . . taking. . . [the plaintiff’s] weapon

his gun during th e “very quick” third meeting in his office, Myrdek testified: example, explaining why he declined to accept the plaintiff’s offer to hand over enforcement officers, a factor that necessarily informed Myrdek’s actions. For issue s before us, both Myrdek and the plaintiff were armed, o n - duty law employer.” Such a characterization ignores that, at all times relevant to th e acting as a “police officer,” but rather “was acting solely in his capacity as the We reject the plaintiff’s contention that prior to 3 p.m. Myrdek was not

not the product of a rational act. objectively reasonable for Myrdek to consider the plaintiff ’ s offer to resign as that the plaintiff’s behavior had rapidly escalated to an enraged state, it was plaintiff] was at that point making a rational decisi on.” Faced with the fact he . . . seemed to be . . . going out of control, and [he] didn’t think that [the plaintiff’s resignation “because [he] felt that in [the plaintiff’s] state of rage that “W ell, F you . . . I’m leaving, I quit.” Myrdek tes tified that he didn’t accept the resignation letter. When Myrdek refused to accept it, the plaintiff respond ed, place that day, the plaintiff became enraged and tried to hand Myrdek a Myrdek informed the plaintiff that the investigatory interview was going to take to. . . his right to resign his employment and leave.” We disagree. When compel [him] to participate in a Garrity internal investigatory interview contrary position . .. would have recognized that he had no reasonable, lawful basis to The plaintiff further argues that “any reasonable officer in Myrdek’s

plaintiff’s rights. arrange for union representation other than Donchess, did not violate the that the investigatory interview take place that day, and that the plaintiff the time, it was objectively reasonable for Myrdek to conclude that insist ing wife he knew where her attorney lived. Based up on the facts know n to him at home in violatio n of a temporary order; and aware t hat the plaintiff had told his that the plaintiff’s wife had expressed concern that the plaintiff had been in her arguing with her husband, requesting additional patrols by her home; aware days before, the plaintiff’s wife had called the Laconia Police Department after the plaintiff being placed on administrative leave in October; aware that two involving the Meredith Police Department; aware of events that had resulted in p. 16 16

reasonably believed that their acts were lawful. conclusion that the officers acted within the scope of their employment and get out of it.” NHDS argue s that the record supports the trial court’s and “the defendants created their own alleged ‘caretaker role’ and then tried to defendants did not initiate an Involuntary Emergency Admission (IEA) process, two - hour detention at state police headquarters was unreasonable because the The plaintiff argues that under the circumstances, his approximately

sovereign immunity. court erred in granting a directed verdict in favor of NHDS on grounds of entitled to official immunit y; ther efore, we limit our review to whether the trial On appeal, the plaintiff does not challenge the court’s ruling that Myrdek was and Myrdek was entitled to official immunity on the false imprisonment claim. T he trial court concluded that NHDS was entitled to sovereign immunity

VI. Sovereign Immunity

this argument. entitled to qualified immunity on the section 1983 claim, we need not address g iven our conclusion that t he trial court correctly determined that Myrdek was that he was not entitled to a jury trial on his section 1983 claim. However, T he plaintiff further argues that the trial court erroneously concluded

qualified immunity. Mlodzinski, 648 F.3d at 28. Accordingly, we hold that Myrdek was entitled to mistakenly) that his . . . conduct did not violate [the plaintiff’s] rights.” case . . . an objectively reasonable officer could have concluded (even accept the plaintiff’ s resignation were lawful. Thus, “even on plaintiff [’s] best that refusing to postpone the plaintiff’s investigatory interview and refus ing to We conclude that an objectively reasonable officer could have believed

scene” (quotation omitted)). hindsight in favor of deference to the judgment of reasonable officers on the 2006); see Saucier, 533 U.S. at 205 (cautioning against “the 20/20 vision of entitled to qualified immunity. Buchanan v. Maine, 46 9 F.3d 158, 170 (1st Cir. 386, 396 - 97 (1989). An officer who makes “a reasonable judgment call” is that are tense, uncertain, and rapidly evolving [.]” Graham v. Connor, 490 U.S. officers are often forced to make split - second judgments – in circumstances “The calculus of reasonableness must embody allowance for the fact that police

balance out how to do that and wh en to do that. trying to calm him down at the same time. And I was trying to that weapon from him without exciting him any further? And I had concerns the entire time as to what point do I try to remove p. 17 17

argue s that based upon the plaintiff’s conduct and demeanor, it was because they did not initiate an IEA even though they detained him. NHDS under the circumstances, the NHDS officers’ conduct was unreasonable and others based on the plaintiff’s manifest behavior.” The plaintiff argues that “was lawful,” based upon a reasonable concern “about the safety of the plaintiff confining the plaintiff to police headquarters until the Concord police arrived that the NHDS officers had a reasonable basis to believe that their conduct” in The trial court also found that “an objective analysis compels a finding

official duties of the employee for the s tate” is satisfied. RSA 541 - B:19, I(d). statutory requirement t hat “the acts complained of were within the scope of court’s conclusion and the plaintiff does not arg ue otherwise. Accordingly, the and “within their law enforcement capacities.” The record supports the trial of thei r duties” under RSA 541 - B:19, I(d), both “in their capacity as employers” The trial court concluded that “the NHDS officers acted within the scope

belief in the lawfulness of their conduct.” Id. committed by government officials or employees who act under a reasonable constitutionally compelled t o expose itself to liability for intentional torts maintaining vigilant government personnel, we believe that the State is not Opinion of the Justices, 126 N.H. at 564. “Given the societal importance of have a chilling effect on the morale and motivation of government personnel.” reasonably believes that his conduct conforms to the law would in our opinion have explained, “[t]o hold the State liable when the employee or official employee lacked a reasonable belief in the lawfulness of his conduct. As we that, while acting within the scope of his official dutie s, the offending State Thus, to establish the State’s intentional tort liability, a plaintiff must prove

of official duties of the employ ee for the s tate. p rovided further that the acts complained of were within the scope omissions complained of, that his conduct was lawful, and rise to the claim reasonably believes, at the time of the acts or imprisonment . . . provided that the employee whose conduct gives [a]ny claim arising out of an intentional tort, including . . . false

immunity from co ntained in RSA 541 - B:19, I(d) (2007), which provides that the State has sovereign immunity, subject to several exceptions. One such exception is In enacting RSA chapter 541 - B, the legislature waived the State’s

above, sovereign immunity is a question of law which we review de novo. omitted). It is not a defense which must be affirmatively pled. Id. As noted conduct or undermined by estoppel.” LaRoche, 134 N.H. at 566 (quotation omitted). “Sovereign immunity is a jurisdictional question not to be waived by jurisdiction.” Opinion of the Justices, 126 N.H. 554, 557 (1985) (quotation “The doctrine of sovereign immunity is deeply entrenched in this p. 18 18

he wanted to kill himself or wanted to be shot. a trooper and his superior resulting in restraint, or a fellow trooper saying that years as a state trooper, he had never witnessed a physical altercation between the plaintiff might harm himself or his wife. Barrett testified that, in his thirty office w ith the plaintiff, testified that he was concerned that, if allowed to leave, nobody getting hurt.” Corporal Stephen Barrett, who was also in Myrdek’s testified that his “sole goal in this entire incident was to get out of there with emotionally and physically” and needed to be in custody that afternoon. Welch office with the plaintiff, testified that the plaintiff “had lost control of him self that “he was a threat to himself and other s.” Welch, who stayed in Myrdek’s and “concerned for the safety of the civilians” in the building, and she testified “concerned with his mindset and the fact that [they were] all wearing weapons,” “clearly a dangerous person at that point.” She testified that she was Fo r ey testified that during the struggle in the hallway, the plaintiff was

causing Welch to draw his taser. that the plaintiff threatened to jump out the window and co mmit suicide, he . . . had one fist clenched, the other fist open.” Captain Allen Welch testified officer shoot him. At one point, the plaintiff got “into a fighting stance in which from him. The plaintiff said to another officer that he was going to make that Myrdek’s office, t he plaintiff threatened to take one of the officer’s guns away According to the testimony of the officers who were with the plaintiff in was he ld in custody by NHDS, he was “angry,” “depressed,” and “suicidal.” The plaintiff testified that d uring the approximately two - hour period when he

the end of 6 hours, whichever event occurs first. to whether involuntary emergency admission shall be ordered or a t [advanced registered nurse practitioner] makes a determina tion as period of protective custody shall end when a physician or involuntary emergency admission shall be ordered . . . . The licensed general hospital . . . for the purpose of determining if an paragraph shall be transported directly to an emergency ro om of a custody. Any person taken into protective custody under this others, the police officer may place the person in protective person poses an immediate danger of bodily injury to himself or to believe that unless the person is placed in protective cu stody the person may be suffering from a mental illness and probable cause gives the peace officer reasonable suspicion to believe that the When a peace officer observes a person engaging in behavior which

Pursuant to RSA 135 - C:28, III (Supp. 2013):

made as to whether an IEA should be ordered. himself and should be held in protective custody until a determination could be reasonable to believe t hat he posed an immediate danger of bodily injury to p. 19 19

DALIANIS, C.J.