2014-0480, John Farrelly v. City of Concord & a.

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

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

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

No. 2014 - 0 480 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

conc lusion that if the facts she stated were true, there was evide nce of a crime was worried for her safety and the safety of he r daughter.” Pic hler came to the from her ex and that they were beginning to concern her and scare her and she e - mails and told him that “she had been receiving repeated communications to Officer Pichler. Pichler interviewed the ex - girlfriend, who gave him the police station. She first spoke with Lieutenant Carroll, who assigned the case After receiving the last e - mail, the ex - girlfriend went to the Concord

herpes and stole $100,000 from him. come to the ex - girlfriend’s birth day party and tell everyone that she gave him ex - girlfriend and other men. In this e - mail, the plain tiff also said that he would girlfriend a “little slut” and described, in crude detail, sexual acts between the HERPES CARRYIN G JEZEBEL.” In the e - mail, the plaintiff called his ex plaintiff sent a lengthy e - mail titled “HAPPY 30 TH YOU LYING CHEATING [DAUGHTER] DOESN’T GROW UP TO BE LIKE YOU.” On February p. 2 21, the The e - mail ended with, “HAVE A[N] AWFUL LIFE AND HOPEFULLY that the plaintiff was contemplating filing a civil suit against the ex - girlfriend. sent at 8:36 p.m., again referenced the piercings and also referred to the fact [] WHAT IS [DAUGHTER] GOING TO THINK OF THEM?” The third e - mail, NEW NIPP LE S PIERCINGS. WHY HAVE YOU TURNED INTO SUCH A TRAMP? at 7:29 p.m., said, “S O I HEAR EVERYONE AT T HE HOSPITAL SAW YOUR You are a Mother for God’s sakes.” The second e - mail, wh ich the plaintiff sent piercings, just wait until [daughter] sees them. What were you thinking of??? p.m., said “HAPPY 30 TH BIRTHDAY A DAY EARLY. I hope you like your new police. The plaintiff sent three e - mails on February 18. The first, sent at 6:06 next day and told the plaintiff to stop contacting her or she would go to the “WHY ARE YOU SO MEAN TO [DAUGHTER]?” The ex - girlfriend responded the 2008. On February 16, 2009, the plaintiff s ent his ex - girlfriend an e - mail titled three years, the plaintiff’s girlfriend and her daughter moved out i n November supports t he following facts. After living with the plaintiff for approximately The record before the trial court for summary judgment purposes

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

defendant’s c omplicity therein terminates”). course of conduct,” the limitations period begins to run “on the day after that conduct or the Cf. RSA 625:8, IV (2007) (providing that “in the case of an offense comprised of a continuous 1

known her since she was a chil d. police officers. Carroll had worked with the ex - girlfriend’s father and had the Concord, PD.” The ex - girlfriend’s father and uncle are retired Concord Pichler said to him: “T his is what you get for f *****g with a p. 3 30 - year veteran of During his deposition, the plaintiff testified that after he was arrested

and, ultimately, the charges against the plaintiff were dropped. county prosecutor informed Pichler that RSA 644:4, I(f) was unconstitutional, N.H. 790 (2005). Neither officer noticed the annot ations. W eeks later, the (f) had been declared unconstitutional years earlier. See State v. Pierce, 152 officers used, the case annotations to the statute indicated that subparagraph believed it more closely re flected the facts of the case. In the book that the They decided to charge the plaintiff under subparagraph (f) because Car r oll arresting the plaintiff — but the timing of their discussion is not dispositive. (Supp. 2014). It is unclear when they discussed the statute — before or after ed ition and discussed RSA 644:4, I (b) and RSA 644:4, I (f). See RSA 644:4 They consulted the New Hampshire Criminal Code Annotated 200 8 - 2009 Carroll and Pichler drafted the criminal complaint against the plaintiff.

arrest was mandatory. statements, which were corroborated by the plaintiff, Pichler thought that an at the time of the arrest. However, based on the e - mails and the ex - girlfriend’s that the plaintiff was “probabl y not” a present threat to his ex - girlfriend ’s safety 594:10; RSA 17 p. 3 3 - B:1, I (Supp. 2014). During his deposition, Pichler stated constituted a credible present threat to his ex - girlfriend’s safety. See RSA unaware that he could arrest without a warrant only if the plaintiff ’s conduct plaintiff without a warrant. See RSA 594:10, I(b). At the time, Pichler was occurred or continued to a period within the past 12 hours, they arrested the 1 594:10 (Supp. 2014). Because the officers also believed that the crime had pursuant to RSA chapter s 173 - B and 594. See RSA 173 - B:10, II (2014); RSA harassment. Pichler believed that there was probable cause to arrest him, Pichler and Carroll agreed that the plaintiff had committed the crime of

would continue to contact her. woul d not go to his ex - girlfriend’s birthday party, but h e also stat ed that he to do so. He told the officers that he did not mean what he said and that he sent the e - mails despite having been told by his ex - girlfriend and her father not to the plaintiff’s residence to speak with him. The plaintiff admitted that he being committed. To obtain more information, Pichler and another officer went p. 4 4

count IV, we need not resolve the matter. remained viable after its order. Because the plaintiff has not appealed the court’s ruling as to favor of the city on count IV and ne ver suggested that there was any aspect of that count that applied only to the city; although the order disposed of the entire case, it granted judgment only in illegally arrest the plaintiff. In its summary judgment order, the trial court treated count IV as if it city’s failure to timely and properly inform and train the individual defendants cau sed them to Carroll and Pichler) as a defendant. The essence of the negligence alleged in this count is that the Although not entirely cl ear, count IV of the complaint appears to name only the city (and not 2

officia l immunity under the common law is distinct from, and operates vicarious immunity. In so ruling, the trial court presumably held the view that because the individual defendants had official immunity and the city had (and, derivatively, that statute’s required parity with RSA 507 - B:2 and:5) need to decide the issue of statutory immunity under RSA 5 p. 4 41 - B:19 (2007) e mployee.” Huckins, 166 N.H. at 182. The trial court ruled tha t it did not sovereign immunity to the State for any intentional tort committed by a State employee under the same terms and conditions as RSA 541 - B:19 provides immunity to municipalities for any intentional tort committed by a municipal The plaintiff argued that RSA 507 - B:2 and :5 could only “provide

(2013). premises. See Dichiara v. Sanborn Reg’ l Sch. Dist., 165 N.H. 69 p. 4 4, 696 - 97 (2010) does not apply, as the claim asserted therein has no n exus to cars or it concluded that the exception to munici pal immunity found in RSA 507 - B:2 court granted summary judgment to the city on count IV (negligence) because However, the court ruled that the defendants were immune from suit. T he and RSA 594:10, and found that the warrantless arrest was unlawful. The court r ejected the defendants’ arguments based up on RSA 594:13

decision. mem orandum of supplemental authority before the trial court rendered its McSweeney, 166 N.H. 176 (201 p. 4 4), which prompted the plaintiff to file a 173 - B:1. While the court’s ruling was pending, we decided Huckins v. RSA 594:10 because there was probable cause to arrest the plaintiff under RSA t he plaintiff under RSA 644:4, I (b); and (4) a warrant was not required under 594:13 (2001) barred the claims because there was probabl e cause to arrest entitled to official and vicarious immunity on counts I, II, and III; (3) RSA entitled to immunity under RS A 507 - B:5 (2010); (2) the defendants were defendants moved for summary ju dgment, arguing that: (1) the city was Hampshire Constitution (count III); and (4) negligence (count IV). The 2 speech and against unreasonable search es and seizures under the New (count I); (2) false imprisonment (count II); (3) violation of his rights of free (city), Officer Pichler, and Lieutenant Carroll, for: (1) malicious prosecution The plaintiff brought claims against the defendants, the C ity of Concord

plaintiff contends, and a ssert that in any event the plaintiff failed to preserve the trial court to insert an objective analysis into its decision - making, as the judgment to the city and the officers. They argue that there was no need for recklessness and that the court correct ly analyzed and granted summary The defendants counter that there are no disputed facts that bear up on

the city. argues that the court should not have granted derivative vicarious immunity to should not have been granted to the individual defendants, the plaintiff also the defendants acted wanton ly or recklessly. Because, in his view, immun ity defendants because there exists a genuine issue of material fact as to whether plaintiff a lso argues that it was error to grant summa ry judgment to the belief when deciding to grant immunity for the se intentional tort claims. The objective standard and should not have relied only upon the officers ’ subjective He c ontends that the court should have applied both a subjective and an because the record contains evidence that they acted in bad faith retaliation. He argues that the trial court erred by ruling that the officers are immune claims for malicious prosecution (count I) and false imprisonment (count II). The pl aintiff appeals only the grant of summary judgment dismissing his

followed. and the city had vicarious immunity for counts I, II, and III. This appeal conduct. The court concluded that the defendant officers had official immunity authority” and, therefore, the statement did not evidence wanton or reckless made the statement while under the impression that he had lawful arrest plaintiff] does not create a factual issue given the undisputed testimony that he hindsight concession that he did not have probable cause to arrest [the arrest [the plaintiff] without a warrant.” The court further found that “Pichler’s made “in the context of Pichler’s belief that he had the lawful authority to plaintiff after he was arrested. However, the court found that the comment was that the only evidence of recklessn ess was Officer Pichler’s comment to the reckless.” Viewed in the light most favorable to the plaintiff, the court found while the officers’ actions “may be deemed negligent,” they were “not wanton or their employment, and that the acts were discretionary. The court ruled that within the scope of their official duties and completed while in the course of (2007). The trial court found there was “no question” the officers’ acts were wanton or reckless manner.” Eve ritt v. Gen. Elec. Co., 1 p. 5 56 N.H. 202, 219 employment; (2) discretionary, rather than ministerial; and (3) not made in a are: (1) made within the scope of their official duties while in the course of their officers are immune from personal liability for decisions, acts or omissions that Under the common law doctrine of official immunity, “municipal police

not subject to the same “terms and conditions” that we articulated in Huckins. independently of, statutory immunity provided by RSA chapter p. 5 507 - B, and is p. 6 6

immunity argument. defendants have official and vicarious immunity, we need not address their prosecutorial entitlement to the defense of absolute prosecutorial immunity. Because we hold that the As an alternative to their official and vicarious immun ity arguments, the defendants also claim 3

immunity for all state officers and employees, see RSA 99 - D:1 (2013), but only employment. Id. Recognizing th at the legislature had adopted statutory alleged common law torts committed within the scope of their government immunity protects public officials and employees from personal liability for ro oted in the common law at their inception.” Id. T he doctrine of official doctrines are “designed to protect particular government entities and. . . allegedly caused by official conduct.” Everitt, 15 p. 6 6 N.H. at 209. Immunity protect governmental entities and public officials from liability for injury concepts of immunity exist under both common law and statutory law to recent decision i n Huckins, 166 N.H. 176. In Everitt, we noted that “[v] arious in Everitt, 156 N.H. 202, which the trial court followed, conflicts with our more A central issue in this case is the plaintiff’s contention that our decision

1 p. 6 6(3)(b). stated in the notice of appeal.” In re “K”, 132 N.H. 4, 17 (1989); see Sup. Ct. R. reasonableness could “have been anticipated from a reading of the questions prosecution.” T he issue of the officers’ beli efs and actions and their objective applicable when defendants acted with malice in initiating plaintiff’s enforcement purposes,” and “[w]hether the privilege of official immunity is their auth ority to make arrests, and file charges, for personal, non - law trial court erred in extending official im munity to police officers who utilized In his notice of a ppeal, the plaintiff lists, among other questions, “[w] hether the argument on appeal is adequat ely preserved by his argume nt to the trial court. was required for any immunity to apply. Thus, w e find that the plaintiff’s have understood that the plaintiff was arguing that objective reasonableness RSA 507 - B:5 and not to common law official immunity, the defendants should Huckins, 166 N.H. at 182. Although his argume nt appears to be directed to forth in Huckins “contains both a subjective and objective element.” See plaintiff did argue that the “requirement of reasonable belief of lawfulness” set memorandum of sup plemental authority submitted to the trial court, the argue that the issue was not included in his notice of a ppeal. However, in his available only if the officers’ belief . . . was objec tively reasonable,” and further that the plaintiff “never argued to the trial court that official immunity is W e first address the defendants’ preservation argument. The y contend

an objectively reasonable manner. 3 this issue for appellate review. They further contend that the officers did act in p. 7 7

formulaic approach to discerning discretionary and ministeria l decisions, acts (3) not made in a wanton or reckless manner.” Id. We “caution [ed] against a the course of their employment; (2) discretionary, rather than mini sterial; and or omissions that are: (1) made within the scope of their official duties while in “municipal police officers are immune from personal liability for decisions, acts immunity identified by the legislature in RSA 99 - D:1.” Id. at 219. We he ld that case law, the law in foreign jurisdictions as well as the scope of official We then “adopt [ed] parameters for official immunity, as informed by our

Id. at 21 p. 7 7 - 18.

by litigation, at times a lengthy and cumbersome process. subsequent lawsuits or to have their energies otherwise deflected community safety to have their judgment shaded out of fear of for those individuals charged with securing and preserving decision or conduct was to blame. The public simply cannot afford personal liability when someone i s injured and claims an officer’ s their duties and independent in their judgments, without fear of entrusted to police officers demands that they remain diligent in performing inherently gover nmental tasks. The public safety enforcement and unfairly expose officers to personal liability for their decisions would undoubtedly compromise effective law Unbridled exposure to personal liability and hindsight review of the underlying police c onduct or decision was errant or not. executive branch, are particularly vulnerable to lawsuits, whether by the citizenry at large. Police officers, as frontline agents for the second - guessing by those directly interacting with police as well as its nature is susceptible to provoking the ho stilities and hindsight pu blic at large and to themselves.. . . Further, law enforcement by repercussions to the individuals immediately involved, to the decisions and take actions which have serious consequences and discretion in t he performance of their duties. They must make Police officers are regularly called upon to utilize judgment and

immunity from suit: discussed at length the role of such officials and the importance of their As in this case, t he defenda nts in Everitt were municipal po lice officers, and we that is alleged to have given rise to the claim.” Id. at 216 (citations omitted). nature of the claim against the official and the particular government activity particular public official is largely a policy question, and depends upon the “Whether, and to what extent, official immunity should be granted to a

a common law question.” Everitt, 156 N.H. at 21 0. immunity for municipal employees sued in their individual capacities remains than those instances in which the legislature has spoken, the scope of official isolated immunity provisions for certain municipal officials, we stated, “other p. 8 8

statute covering municipal employees, t he legislature has afforded immunity to 160 N.H. 419, 437 (2010). While there is no corresponding comprehensive common law doctrines of sovereign and official immunity.” Laramie v. Stone, RSA 99 - D:1. RSA 99 – D:1 represents “a statement of policy adopting the

and not in a wanton or reckless manner. official duty while in the course of their employment for the state such capacities, from acts o r omissions within the scope of their employees in their personal capacity or official capacity, or both claims or actions arise against such officers, trustees, officials, and herein shall be applicable to all claims and civil actions, which the state’ s officers, trustees, officials, and employees as set forth statute, is hereby adopted as the law of the s tate. The immunity of reckless manner, except as otherwise expressly provided by acting within the scope of official duty and not in a wanton or trustees, officials, or employees of the state or an y agency thereof extension of that doctrine, the official immunity of officers, The doctrine of sovereign immunity of the state, and by the extended by law to state officers, trustees, officials, and employees. persons or to waive the state’ s sovereign immunity which is manner. It is not intended to create a new remedy for injure d of their employment for the state and not in a wanton or reckless committed within the scope of their official duty while in the course who are subject to claims and civil actions arising fro m acts trustees, officials, employees, and members of the general court It is the intent of this chapter to protect state officers,

immunity to individual state officials and employees. It provides: addressing municipal and sovereign immunity. First, RSA 99 - D:1 grants id. at 210, we also recognize that the legislature has enacted some statutes employees sued in their individual capacities remains a common law question,” A lthough we observed in Ever i tt that “official immunity for municipal

effectively undermined.” Id. of official immunity to an individual public official would otherwise be “Vicarious immunity ought to apply when the ver y policies underlying the grant individual, but it is not an automatic grant.” Id. (quotation omitted). generally may be vicariously extended to the government entity em ploying the stating that “[o] fficial immunity, when available to individual public officials, In Everitt, we also extended this official immunity to municipalities,

a case is erroneously permitted to go to trial.” Id. at 221 (quotation omitted). lawsuit, rather than as a mere def ense against liability, and is effectively lost if also reiterated that “the purpose of immunity is to operate as a bar to a dictionary definition, nor can they be reduced to a set of specific rules.” Id. We or omissions. In the context of immunity, these terms are not subject to a p. 9 9

have not interpreted this statute as completely occupying the field of municipal measure of immunity to municipalities, although, as our decision s indicate, we Through RSA chapter 507 - B, t he legislature also has granted some

scope of official duties of the employee for the state. and provided further that the acts complained of were within the the acts or omissions complained of, that his conduct was lawful, conduct gives rise to the claim reasonably believes, at the time of with contractual relations, provided that the employee whose privacy, interference with advan tageous relations, or interference process, libel, slander, misrepresentation, deceit, invasion of mental distress, malicious prosecution, malicious abuse of assault, battery, false imprisonment, false arrest, intentional (d) Any claim arising o ut of an intentional tort, including

office or employment. state officer, employee, or official acting within the scope of his function or duty on the part of the state or any state agency or a failure to exercise or perform a discretionary executive or planning (c) Any claim based upon the exercise or performance or the

state agency. exercising due care in the execution of any statute or any rule of a employee, or official when such officer, employee, or official is (b) Any claim based up on an act or omission of a state officer,

judicial function. (a) Any claim which is based upon the exercise of a legislative or

chapter shall not apply to: immunity of the state and its agencies, the provisions of this I. Without otherwise limiting or defining the sovereign

but has carved out a number of exceptions: its sovereign immunity, see generally RSA chapter 541 - B (2007 & Supp. 2014), As to the amenability to suit of the S tate itself, t he legislature has waived

good faith and w ithin the scope of [their] authority”). commissioners, cannot be held liable for certain acts or decisions made “in selectmen, s chool board members, mayors, city managers, and county 2014) (providing that c ertain municipal officials, including city councilors, certain specific categories of municipal officials. See, e.g., RSA 31: p. 10 104 (Supp. 10

matter. arising under state law, and nothing in this opinion is intended to express any view on that of the immunity of the state or its political subdivisions or their officers or employees for claims Importantly, we have never suggested that the legislature may not completely preempt the field 4

must have acted within the scope of his official duties and have “reasonably a State employee.” Id. (citation omitted). That is, to have immunity, the official provides sovereign immu nity to the State for any intentional tort committed by municipal employee under the same terms and conditions as RSA 541 - B:19 “provide immunity to municipalities for any intentional tort committed by a that they comply with the State Constitution,” we determined that the statutes “In light of our obligation to construe RSA 507 - B:2 and RSA 507 - B:5 so

belief in the lawfulness of the disputed act.” Huckins, 166 N.H. at 182. government employees when those torts are not grounded on a reasonable itself or its municipalities from liability for intentional torts co mmitted by hand, under our prior cases, it is unconstitutional for the State to immunize Dover v. Imperial Cas. & Indemn. Co., 133 N.H. p. 10 109, 115 (1990). “On the other law.” Id.; see Opinion of the Justices, 126 N. H. 554, 564 - 65 (1985); City of acting under a reasonable belief that the offending conduct was authorized by municipalities from liability for intentional torts by governmental employees protection guarantee is violated when the State immunizes itself and its “Our prior cases establish that neither Part I, Article 14 nor the equal

intentional tort of a municipal employee. Id. i njured by an intentional tort of a state employee and a plaintiff i njured by an however, that there was no difference betw een the treatment of a plaintiff injured by State employees.” Huckins, 166 N.H. at 181. We concluded different treatment of plaintiffs injured by municipal employees and those violate [d] his constitutional right to equal protection because they result in In Huckins, the plaintiff argued “that RSA 507 - B:2 and RSA 507 - B:5

faith.” as said employee or official was acting within the scope of his office and in good be subject to the same limits as those which govern municipal liability, so long official shall be governed by the same principles and provisions of law and s hall against municipal employees or officials, “the liability of said employee or premises....” RSA 507 - B:4, IV (20 p. 10 10) also provides that, for claims or actions ownership, occupation, maintenance or operation of all m otor vehicles, and all property damage caused by its fault or by fault attributable to it, arising out of liable for damages in an action to recover for bodily injury, personal injury or an exception to this immunity, under which “[a] governmental unit may be held or as is provided or may be p rovided by other statute.” RSA 507 - B:2 sets forth injury, personal i njury or property damage except as provided by this chapter “No governmental unit shall be held liable in any action to recover for bodily immunity so as to preempt the common law doctrine. RSA 507 - B:5 states: 4 p. 11 11

Nevertheless, this conclusion does no t bring our analysis to an end. that his or her conduct was lawful and such belief was objectively reasonable. an officer is entitled to official immunity only if the officer subjectiv ely believed Case, 153 N. H. 10, 22 (2005). Cons istent with these cases, we conclude that and that the circumstances are such that the belief is reasonable.’” Lane’s ‘reasonably believes’ to mean that ‘ the lawyer believes the matter in question (2005). We have also noted that “[t] he Rules of Professional Conduct define Progressive N. Ins. Co. v. Concord Gen. Mut. Ins. Co., 151 N.H. 649, 653 that he is ‘entitled’ to use the car and that such belief is objectively sound.” term ‘reasonable belief’ requires both that the driver have a subjective belief West, 167 N.H. at 471. Similarly, in an insurance case, we held that “[t]he

justified. — was not reasonable, you should not find his use of force was belief. If the defendant’ s actual belief — that force was necessary circumstances, the defendant’ s actual belief was a reasonable necessary to use force. Then you must find that, under all t he you must first find that the defendant actually believed that it was Thus, to find that the defendant was justified in using force,

under RSA 627:7 (2007): whether a person “reasonably believes it necessary” to use non - deadly force suggested that the jury be given the following instruction on the issue of stand ard that the plaintiff advocates. In State v. West, 167 N.H. 465 (2015), we however, and, in such areas, have found the term to encompass the dual of immunity. We have addressed similar language in other areas of law, We have never explained what “reasonably believes” means in the context

was objectively reasonable. both whether the officers actually held that belief and whether such a bel ief “reasonably believed” that they acted lawfully, the court should have examined actions. T he plaintiff argues that, in order to determine whether the officers erred by analyzing only the officer s’ subjective belief in the lawfulne ss of their both a su bject ive and a n o bjective standard. He contends tha t the trial court The plaintiff argues that the “reasonable beli ef” standard encompasses

that their actions were lawful. defendants are entitled to official immun ity only if they reasonably believed respect to RSA chapter 507 - B and RSA 541 - B:19. In other words, the the same constitutional requirements as those we articulated in Huckins with a statute, we agree with the plaintiff that official immunity must be subject to the doctrine of official immunity arises from the common law, rather than from Although the trial court in the instant case was correct to point out that

was lawful.” RSA 541 - B:19, I(d). believe [d], at the time of the acts or omissions complained of, that his conduct p. 12 12

(2013). Although “a lack of probable cause is not an element of false defendant acted without legal authority. Ojo v. Lorenzo, 164 N.H. 717, 726 (3) the plaintiff was conscious of or harmed by the con finement; and (4) the the defendant ’ s act directly or indirectly resulted in the plaintiff's confinement; with the intent of confining him within boundaries fixed by the defendant; (2) imprisonment, a plaintiff must show f our elements: (1) the defendant acted is still a part of the analysis of both torts. To prevail on a claim for false reasonableness of the defendants’ actions, and thus, the absence of negligence, Unlike Everitt, the claims here are for intentional torts. However, the

i.e., reckless ly or wanton ly. negligence. I t implies that the official acted with a higher level of culpability, a “r easonable belief” in this context necessarily must mean more than the added protection of official immunity to serve any purpose, then, the lack of as recognized in Dichiara v. Sanborn Reg’l Sch. Dist., 165 N.H. 694 (2013). For rare exception.” (citation omitted)), superseded by statute, Laws 1975, 483:1, negligence by an individual or a corporation liability follows. Immunity is the 722, 728 (1974) (“The prevailing rule of torts today is that where there is and there would be no need for immunity. See Merrill v. Manchester, 114 N.H. purpose because i f an official were not negligent, he would not be liable at all more than mere negligent actions. If it did not, immu nity wo uld serve no For immunity purposes, the failure to act “reasonably” must connote

cause and qualified immunity inquiries are not coterminous.”). 23 (1st Cir. 1999) (“[T]he reasonableness standards underlying the probable meaning is, if nothing else, vague.”); see also Iacobucci v. Boulter, 193 F.3d 14, ‘reasonable’ is a paradigmatic example of a standard in the law, and its and Out of Negligence Law, 163 U. Pa. L. Rev. 2 p. 13 131, 2133 (2015) (“The word depending on the context in which it is used. S ee Zipursky, Reasonableness I n meaning of “reasonably” is not immutable; it takes on varying meanings unreasonableness; due care is simply reasonable conduct.”). However, the Negligence, 29 Harv. L. Rev. 40, 42 (1915) (“The essence of negligence is contexts, “reasonably” means that one did not act negligently. See Terry, “reasonableness” is closely associated with the absence of negl igence. In m any someone acted with negligence.” Id. at 1457. As these definitions suggest, hypothetical person used as a legal standard, esp. to determine whether reasonable person would believe.” Id. at 184. A “reasonable person,” is “[a] believe (a given fact or combination of facts) under circumstances in which a (10th ed. 2014). Black’s Law Dictionary defines “r easonably believe” as “[t] o moderate under the circu mstances; sensible.” Black’ s Law Dictionary 1456 mean different things.”). In general, “reasonable” means “[f] air, proper, or law as in life, however, the same words, placed in different contexts, sometimes (2015) (“Ordinarily, a word’ s usage accords with its dictionary definition. In in the immunity context. See Yates v. United States, 135 S. Ct. 1074, 1082 subjective c omponent, “reasonably” and its cognates have a particular meaning A lthough “reasonably believes” includes both an objective and a 13

t o the lawfulness of their conduct. plaintiff requires an inquiry into whether they acted recklessly or wantonly as entitled to immunity from liability for the intentional tort claims brought by the We therefore hold that the determination of whether the defendants here are used, for the reasons explained above, the standards are in reality the same. two standards may appear to be at odds because of the d isparate language their conduct.” Huckins, 166 N.H. at 182 (quotation omitted). Although the officials o r employees who act under a reasonable belief in the lawfulness of Huckins permits immunity “for intentional torts committed by government reckless manner.” Everitt, 156 N.H. at 219. The standard we articulated in liability for decisions, acts or omissions that are . . . not made in a wanton or Everitt, which states that “m unicipal police officers are immune from personal the plaintiff asserts. The trial court applied the reckless ness standard from immunity context, there is not the conflict between Huckins and Everitt that Given the contours of “reasonably” an d “objectively reasonable” in the

hindsight.” (citation and quotation omitted)). scene, including what the officer knew at the time, not with the 20/20 vision of make this determination from the perspective of a reasonable officer on the turns on the facts and circums tances of each particular case. A court must Hendrickson, p. 13 135 S. Ct. 2466, 2473 (2015) (“Rather, objecti ve reasonableness Hainey, 39 1 F.3d 25, 31 (1st Cir. 2004) (emphasis added); see also Kingsley v. objectively reason able officer standing in [the defendant]’s shoes.” Cox v. only if th e unlawfulness of the arrest would have been apparent to an First Circuit stated in a qualified immunity case: “[T] his suit may go forward objective reasonableness from the perspective of the actor in question. As the individual who is disconnected from the situation. Rather, we consider context of immunity. The proper standard is not the conduct expected of an Additionally, “objectively reasonable” has a particular meaning in the

be defeated by a mere showing of negligence. would no t offer any real protection, even for these intentional torts, if it could Because there would be no liability if the officer acted reasonably, immunity analysis for these claims notwithstanding that they are intentional torts. reasonableness required for probable cause, remains a critical part of the negligence, which, as we earlier explained, equate s to a lack of the prosecution and a defense to a claim of false imprisonment. Therefore, Probable cause, or the lack thereof, is an element of malicious

plaintiff’s favor. Id. probable cause; (3) with malice; and (4) the prior action terminated in the prosecution or civil proceeding instituted by the defendant; (2) without claim for malicious prosecution are: (1) the plaintiff was subjected to a criminal resulting from a warrantless detention.” Id. at 727. The four elements of a imprisonment,” probable cause is “a defense to a claim for false imprisonment p. 14 14

law that their actions did not r ise to the level of reckless or wanton conduct subsection of the harassme nt statute, the record demonstrates as a matter of plaintiff without a warrant and in charging him under an unconstitutional In sum, although the officers may have acted negligently in arresting the

RSA 173 - B:1, I; RSA 594:10, I(b). engaged in an act of abuse that posed a threat to his ex - girlfriend’s safety. See basis for believing that fewer than 12 hours before his arrest the plaintiff had making disparaging comments about her, also at least arguably establish a plaintiff declared his in tent to attend her birthday party and disrupt it by their vituperative tone, particularl y as displayed in the last e - mail, i n which the arrest). The antagonism toward his ex - girlfriend reflected in the e - mails and Vandebogart, 139 N.H. p. 14 145, 163 (1994) (reciting standard for probable cause to offense or gave a reason that did not justify the arrest.”); see also State v. exists, the arrest will be lawful even though the officer charged the wrong purpose to annoy or alarm [her].” See RSA 594:13 (“If a lawful cause of arrest at extremely inconvenient hours or in offensively co a rse language with a unconstitutional, by “mak [ing] repeated communications [to his ex - girlfriend] plaint iff had violated RSA 644:4, I(b), which has not been ruled plaintiff’s own admissions, to warrant a reasonable person to believe that t he plaintiff, the officers had sufficient trustworthy information, including the decision, t he uncontradicted evidence establishes that prior to arresting the Although the officers chose to rely upon RSA 644:4, I(f) in their charging

have now clarified it, and the ruling is supported by the evidence in the record. not inconsistent with the constitutional standard set forth in Huckins, as we the court phrased its ruling in terms of the common law regime, the ruling was position would have done under the same or similar circumstances. Although comparison of the officers’ conduct with what a reasonable officer in their officers may have bee n negligent but were not reckless or wanton was a should have done. I n other words, implicit in the court’s conclusion that the necessarily had to consider how the officers’ actions deviated from what they determination that the officers did not act recklessly or wantonly, the court as focusing only up on the officers’ subjective belief. In making its W e disagree with the plaintiff’s characterization of the trial court’s order

Huckins. wanton or reckless.” This satisfies the reasonable ness standard required by although the officers’ actions “may be deemed negligent,” they were “not Bacon, 167 N.H. 591, 596 (2015). Here, the trial court specifically found that evidentiary support or are legally erroneous.” N.H. Fish & Game Dep’t v. “We will uphold the trial court’ s findings and rulings unless they lack standard when determining that the defendants were entitled to immunity. The plaintiff argues that the trial court erred by not applying an objective

plaintiff, we assume that the stat ement was made. dispute as to this point, and because we must view the evidence in the light most favorable to the Pichler denies that he ever made such a statement to the plaintiff. Because there is a factual 5

Demarais Assoc’s v. Alex. Eastman Found., 129 N.H. 89, 92 (1986). He does plaintiff had to produce evidence. See RSA 491:8 - a, IV (2010); ERA Pat 800, 817 - 18 (1982). When the defendants moved for summary judgment, the to the burdens of broad - reaching discovery.” Harlow v. Fitzgerald, 457 U.S. should not suffice to subject government offici als either to the costs of trial or lawfully. We are mindful that in immunity cases, “bare allegations of malice genuine issue of material fact as to the office r s ’ belief that they were acting We conclude that the foregoing evidence is not sufficient to raise a

acting lawfully, and shows that they in fact acted in bad faith. attestations that, at the time of the plaintiff’s arrest, they believed they were The plaintiff asserts that this evidence calls into question the officers’ “T his is what you get for f ***** g with a 30 - year veteran of the Concord, PD.” 5 Lie utenant Carroll; and (2) after arresting the plaintiff, Officer Pichler said, girlfriend’s father and uncle are retired Concord police o fficers and worked with to the plaintiff, t he only facts which support his theory are that: (1) his ex against him, leading to his unlawful arrest. Viewed i n the light most favorable Concord Police Department, the officers acted in bad faith and retaliated jury. His theory is that, because of the ex - girlfriend’s family connection to the s ubjective belief that they were acting lawfully should be a question for the The plaintiff contends that whether the officers actually had the

N.H. 59, 70 - 71 (2014). questions, which we review de novo. See Conrad v. N.H. Dep’ t of Safety, 167 the law to the facts de novo.” Id. Additionally, immunity rulings are legal judgment.” Id. (quotation omitted). “We review the trial court’s applic ation of entitled to judgment as a matter of law, we will affirm the grant of summary evidence discloses no genuine issue of material fact, and if the moving party is Comm’n, 166 N.H. 374, 376 (2014) (quotation omitted). “If our review of that in the light most favorable to the non - moving party.” Camire v. Gunstock Area the affidavits and other evidence, and all inferences properly drawn from them, “In reviewing the trial court’s gran t of summary judgment, we consider

persuaded. to the officers’ subjective belief in the lawfulness of their actions. We are not judgment to the defendants because there is a genuine issue of material fact as The plaintiff also argues tha t the trial court erred by granting summary

official immunity paradigm. sufficient to strip them of protection under the objective component of the p. 16 16

safety to have their judgment shaded out of fear of subsequent lawsuits or to afford for those individuals charged with securing and preserving community near - perfect vision of hindsight. See id. at 21 8 (“The public simply cannot liability and of la wsuits in which their actions will be scrutinized through the respond quickly and do not have their actions hampered b y worries of potential situation. In these cases, the public is well - served if the police are able to circumstances such as the instant case, which i nvolved a domestic violence fear of personal liability. . . .” Id. at 217 - 18. This is especially true in remain diligent in their duties and independent in their judgments, without N.H. at 217. “The public safety entrusted to police officers demands that they immediately involved, to the public at large and to the mselves.” Everitt, 156 which have serious consequences and repercussions to the individuals the performance of their duties. They must make decisions and take actions “Police officers are regu larly called upon to utilize judgment and discretion in policy considerations weigh in favor of granting immunity to these officials. We once again note that this is a close case. H owever, we think that

official and vicarious immunity as a matter of law. summary judgment to the defendants on the grounds that they were entitled to their actions. Therefore, we hold that the trial court did not err by granting issue of material fact as to the officers’ reasonable belief in th e lawfulness of omitted). Here, the plaintiff’s proffered eviden ce does not create a gen uine erroneou sly permitted to go to trial.” Eve ritt, 156 N.H. at 221 (quotation than as a mere defense against liability, and is effectively lost if a case is “[T] he purpose of immunity is to operate as a bar to a lawsuit, rather

motivation to the target of his malfeasance — is equally plausible. he was acting unlawfully would not offer such a statement about his awareness of illegality, an argument to th e contrary — that an officer who knew In fact, in contrast to the plaintiff’s thesis that the statement demonstrates an believed his conduct was unlawful than if he believed his conduct was lawful. officer in Pichler’ s position would be more likely to make such a statement if he Amendmen t”). In other words, there is no logical basis for inferring that an motive invalidates objectively justifiable behavior under the Fourth U.S. 806, 812 (1996) (observing that the Court has never held “that an officer’s undercut what an officer knows or believes. Cf. Whren v. United States, 517 an intent to do so unlawfully. The existence of evidence of bad motive does not protect someone with a connection to the Concord police, but it does not show To be sure, the comment may show Pichler’s intent or motivation to

plaintiff asks it to carry. Pichler’s single comment. The comment cannot bear the weight which the he rests his theory and his argument that there is an issue of fact upon not contend tha t there is more evidence he could potentially produce. Rather, p. 17 17

DALIANIS, C. J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

cumbersome process.”). have their energies otherwise deflected by litigation, at times a lengthy and