2024 N.H. 54, Doe v. Salem Police Dep’t (Off-duty Speeding)

p. 3 3

relevant to the issue of guilt or punishment, his inclusion on the EES is personnel file includes information that has the possibility of being materially such conduct on the EES.” The court then concluded that “if [the plaintiff’s] conduct and gave the DOJ discretion to include officers who have engaged in utilizing the phrase ‘potentially exculpatory,’ sought to capture a wide variety of inclusion on the EES.” The court reasoned that “the Legisla ture, by virtue of “the plain language of the statute seemingly establishes a low threshold for parties’ arguments regarding the term “potentially exculpatory,” explaining that evidentiary hearing was unnecessary. The trial court then addressed the because the relevant facts are “well - documented” and “not in dispute,” an plaintiff’s request for declaratory judgment, the trial court determined that, [¶7] T he trial court granted the DOJ’s motion to dismiss. Regarding the

injunctive relief. viable due process violation and failed to allege any substantive basis for as a matter of law. The DOJ also argued that the plaintiff failed to establish a incident and that his conduct is “potentially exculpatory” under RSA 105:1 p. 3 3 - d arguing that the plaintiff was not enti tled to a de novo review of the underlying a meaningful opportunity to object. The DOJ moved to dismiss the complaint, C onstitutions had been violated when his name was added to the EES without (3) a declaration that his due process rights under the S tate and F ederal permanent injunction ordering the DOJ to remove his name from the EES; and declaration that his name “is not appropriate for inclusion on the EES”; (2) a facts and circumstances that led to his placement on the EES and a a declaration that RSA 105:13 - d provides for de novo review of the underlying [¶6] In 2021, the plaintiff filed a complaint in superior court seeking: (1)

disobeying a police officer charges. See RSA 651:5 (Supp. 202 p. 3 3). annul ling the record of arrest and disposition of the reckless conduct and violation. T hereafter, t he Superior Court (St. Hilaire, J.) issued an order on the two criminal charges, and the plaintiff instead pled guilty to a speeding Officer, see RSA 265:4 (2024). However, the DOJ later entered nolle prosequi Weapon, see RSA 631:3, II (Supp. 2023), and one count of Disobeying a Police charged the plaintiff with one count of Reckless Conduct with a Deadly [¶5] In addition to adding the plaintiff’s name to the EES, t he DOJ

against [the plaintiff] was not overturned.” the plaintiff’s request, reasoning that “the sustained disciplinary finding Giglio v. United States, p. 4 405 U.S. 150, 154 (1972). However, t he DOJ denied in this or any future litigation.” See Brady v. Maryland, p. 3 373 U.S. 83, 87 (19 63); contain Brady/Giglio material and therefor[e] shall not be subject to disclosure determined that the information in the plaintiff’s personnel file “does not Superior Court (St. Hilaire, J.) in a separate matter in which the court DOJ remove his name from the EES, citing a sealed order issued by the name to the DOJ for inclusion on the EES. The plaintiff requested that the issue. After the meeting, the administrative police chief referred the plaintiff ’s 4

officer be placed on the [EES].” RSA 105:13 - d, II(a) - (d). order finding that the law enforcement agency erred in recommending that the underlying misconduct is not potentially exculpatory” or “[a] court issues an information will become public” unless “a court issues an order finding that the on the EES in superior court, and “the individual ’ s name and corresponding The statute further provides that a n officer may challenge his or her placement

shall be a public record subject to RSA 91 - A. provisions of this section, the [EES] may be maintained by the [DOJ] and information contain potentially exculpatory evidence. Subject to the a list of all current or former law enforcement officers whose personnel The [DOJ] may voluntarily maintain an [EES]. The [EES] shall consist of

[¶11] RSA 105:13 - d, I, provides:

not constitute a basis for legal relief. Barufaldi, 1 75 N.H. at p. 4 427. law. Id. We will uphold the granting of a motion to dismiss if the facts pled do threshold inquiry that tests the facts in the complaint against the applicable Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 652 (2020). We engage in a a construction that would permit recovery. N.H. Ctr. for Pub. Interest consider whether the allegations in the pleadings are reasonably susceptible of [¶10] When reviewing a trial court’s ruling on a motion to dismiss, we

agreed with the DOJ and denied the plaintiff’s motion. This appeal followed. warranted his inclusion on the EES. (Quotation omitted.) The trial court properly determined that the plaintiff’s “conscious disregard for law and order” evidence” under RSA 105:13 - d. The DOJ objected, arguing that the trial court would affect his general credibility and therefore is not “potentially exculpatory other arguments that his prior conduct was not so severe that its disclosure [¶9] T he plaintiff filed a motion for reconsideration, maintaining among

plaintiff’s request for injunctive relief. succeed on the merits of his claims,” the trial court also dismissed the was later added to the EES. Concluding that the plaintiff was “not likely to both when the SPD initial ly took disciplinary action against him and when he concluding that the plaintiff had received constitutionally adequate due process [¶8] T he trial court also dismissed the plaintiff’s remaining counts,

disregard for law and order.” the plaintiff’s actions “constituted a dereliction of his duty” and a “conscious “is ‘potentially exculpatory’ within the contemplation” of RSA 10 p. 5 5:13 - d because warranted.” Applying this standard, the court ruled that the plaintiff’s conduct 5

N.H. at ___, 2024 N.H. p. 5 50, ¶1 8. The plaintiff’s conduct is not reasonably not meet the standard for inclusion on the EES. See Doe (Activity Logs), ___ in Doe, his conduct is not “potentially exculpatory evidence” and therefore does [¶16] We agree with the plaintiff that, pursuant to the definition set forth

beneficial to impeach his credibility.” cases in which knowledge of [the plaintiff’s] past misconduct would prove questioning.” Further, it asserts that it is “not diffi cult to envision the types of “may aid defense counsel in pursuing a particular defense strategy or line of to the plaintiff’s conduct would be admissible, such information, if disclosed, into question.” The DOJ argues that regardless of whether information relating criminal case where [his] disciplinary record, character, or judgment is called to [his] general character and has the potential to be exculpatory in a future [¶1 p. 5 5] The DOJ responds that the plaintiff’s “intentional conduct speaks

record of the plaintiff’s arrest, were annulled. nolle prossed and that the charges and their disposition, together with the the trial court erred in failing to consider that the two criminal charges were for truthfulness, see N.H. R. Ev. 608(b). In addition, the plaintiff argues that trial as character evidence, see N.H. R. Ev. 404(b), or to impeach his character erred when it failed to consider that his conduct would not be admissible at accepted “responsibility for his actions.” He further asserts that the trial court forthright and honest” during the SPD internal investigation, and that he that did not involve any dishonesty. He also maintains that he was “completely claims that his off - duty conduct was the result of a “practical joke” or “prank” because it is not sufficiently probative of his general credibility and is stale. He [¶14] The plaintiff argues that his conduct does not rise to that level

10 p. 5 5:13 - d, I. level of being “potentially exculpatory evidence” as contemplated by RSA Therefore, the issue before us is whether the plaintiff’s conduct rises to the determining that the plaintiff’s conduct warrants his inclusion on the EES. “potentially exculpatory” to determine whether the trial court erred in [¶13] The present appeal requires that we apply this definition of

on the EES is warranted. Id. at ___, 2024 N.H. p. 5 50, ¶20. whether information is “potentially exculpatory” such that an officer’s inclusion bearing upon the admissibility of evidence are relevant to the determination of N.H. 50, ¶1 8. In reaching our conclusion, we explained that the considerations material to guilt or to punishment.” Doe (Activity Logs), ___ N.H. at ___, 2024 evidence, including impeachment evidence, that is “reasonably capable of being 15 - 20. We held that “potentially exculpatory evidence,” RSA 105:13 - d, I, is N.H. Attorney Gen. (Activity Logs), ___ N.H. ___ (2024), 2024 N.H. 50, ¶¶7 - 12, the term “potentially exculpatory” within the context of RSA 105:13 - d. Doe v. discussed the background of the EES and examined the meaning and scope of [¶12] Recently, in Doe v. N.H. Attorney General (Activity Logs), we p. 6 6

Hillsborough County Attorney, 1 p. 6 67 N.H. 774, 779 - 80 (2015). Interest Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 651, 653 - 54 (2020); Duchesne v. potentially exculpatory information in their personnel files or elsewhere. See N.H. Ctr. for Pub. attorneys were responsible for maintaining county - wide “Laurie Lists” of police officers with Prior to the DOJ’s maintenance of the state - wide EES, see RSA 105:13 - d, I (2023), county 1

would not be warranted. Id. at ___, 2024 N.H. 50, ¶20. factor weighing on the conduct’s relevance, an officer’s inclusion on the EES admissible, due to the passage of a significant length of time or some other foreseeable case in which evidence relating to an officer’s conduct would be N.H. 50, ¶ ¶ 20, 22. There, we acknowledged that if there is no reasonabl y officer’s inclusion on the EES. See Doe (Activity Logs), ___ N.H. at ___, 2024 of the alleged conduct when determining whether that conduct warrants an explained that trial courts should consider factors such as the age and nature determine whether it is “potentially exculpatory,” RSA 105:13 - d, I. In Doe, we we should consider, among other factors, the age and nature of the conduct t o [¶19] Relying on our analysis in Duchesne, the plaintiff maintains that

officer’s name” on the “Laurie List.” Id. general credibility has a strong bearing on the propriety of maintaining the officer’s background is not of the type usually admissible to attack the officer’s conduct, we explained that “the fact that adverse information regarding a police was not based solely upon the admissibility at trial of evidence of the plaintiffs’ see N.H. R. Ev. 404(b). Duchesne, 1 p. 6 67 N.H. at 784. Although our conclusion nor would it be admissible to show their propensity to engage in such conduct, admissible to impeach the plaintiffs’ general credibility, see N.H. R. Ev. 608(b), plaintiffs attempted to lie about or cover up their conduct, it would not be reasoned that because the excessive use of force claim did not allege that the was then known as the “Laurie List.” Duchesne, 167 N.H. at 775, 784. We 1 incident of alleged excessive use of force warranted their placement on what Duchesne, we considered whether the plaintiffs’ involvement in a n off - duty similar to Duchesne v. Hillsborough County Attorney, 167 N.H. 774 (2015). In [¶18] The plaintiff ass erts, and we agree, that this case is factually

50, ¶20. personnel file warrants his or her inclusion on the EES. Id. at ___, 2024 N.H. evidence factor s into the determination of whether information in an officer’s that evidence would be admissible in a criminal proceeding, the admissibility of evidence is “potentially exculpatory” is separate from the question of whether obligation to disclose exculpatory evidence. A lthough the question of whether Hampshire Rules of Evidence nor the related admissibility inquiry define s the [¶17] As an initial matter, the DOJ correctly states that neither the New

his general credibility and is stale. capable of being material to guilt or to innocence because it is not relevant to p. 7 7

guilty to a speeding violation. Because a violation - level offense is not a crime, incident, but those charges were nolle prossed, and the plaintiff instead pled charged the plaintiff with two counts of criminal conduct relating to the SPD ’s promise that it would take no further action. Years later, the DOJ the SPD in which he accepted responsibility for his conduct in exchange for the internal investigation and entered into an agreement through his union with [¶23] In the case at hand, t he plaintiff accepted the findings of the SPD’s

every time they appear as witnesses.” Id. at p. 7 785. has now been shown not to be of that character — should follow the [plaintiffs] potentially exculpatory and worthy o f an in camera review by the court, but sense that the threshold determination — that something was thought to be justified. Duchesne, 167 N.H. a t 784 - 85. We reasoned that “[i]t makes no and the attorney general also concluded that the plaintiffs’ use of force was force, the chief’s decision was overturned by an arbitrator following a hearing, plaintiffs’ initial discipline by their police chief for their alleged excessive use of I n Duchesne, our conclusion relied in part upon the fact that, despite the plaintiff’s case again presents similarities to the circumstances in Duchesne. brought against him and that his criminal case has since been annulled. The to consider t hat the DOJ entered nolle prosequi on the two criminal charge s [¶22] The plaintiff also contends that the trial court erred when it failed

witness. information diminishes its relevance in cases in which he may be called as a the position of sergeant. We agree with the plaintiff that the age of the without any other disciplinary action, and he was subsequently promoted to re aching the agreemen t, t he plaintiff continued his employment with the SPD incident, and his discipline was resolved by an agreement with the SPD. After conduct is over ten years old, the plaintiff accepted responsibility for the issue here diminishes its potential relevance. T he record reflects that t he [¶21] Moreover, we agree with the plaintiff that the age of the conduct at

N.H. R. Ev. 60 p. 8 8(b). admissible to impeach his character for truthfulness or untruthfulness. See w ithout more, information regarding the plaintiff’s conduct would not be plaintiff acted dishonestly or attempted to conceal his conduct. Therefore, n othing in the complaint or accompanying documentation suggests that the disposition with the SPD. However, aside from th is apparent lack of judgment, responsibil ity for “a temporary lack in judgment” as part of his negotiated Indeed, the plaintiff acknowledged in his complaint that he accepted full which reflects discredit upon the Department [or] any member thereof.” undermine the good order, efficiency and discipline of the Department, or directives, memoranda, or any lawful order, or any act which [tends] to defined as “[a]ny violation of the rules and regulations, published orders, department’s code of conduct for “Conduct Unbecoming an Employee,” which it [¶20] Here, the SPD determined that the plaintiff violated the 8

BASSETT and COUNTWAY, JJ., concurred.

proceedings consistent with this opinion. court’s order granting the DOJ’s motion to dismiss and remand for further remaining arguments. For the reasons stated above, we reverse the trial 105:13 - d, I. In light of this ruling, we need not address the plaintiff’s information in his personnel file is not “potentially exculpatory evidence,” RSA prossed and annulled. Accordingly, we hold as a matter of law that the Laurie, 139 N.H. 325, 327 (199 5), and because his criminal charges were nolle and does not reflect negatively on his character and credibility, cf. State v. reasonably capable of being material to guilt or to innocence because it is stale [¶24] Therefore, we conclude that the plaintiff’s conduct is not

innocence. See Doe (Activity Logs), ___ N.H. ___, 2024 N.H. 50, ¶1 p. 8 8. Employee,” without more, is reasonably capable of being mater ial to guilt or to the information leading to the SPD’s finding of “Conduct Unbecoming an been overturned, for reasons previously discussed, we are unpersuaded that finding that the plaintiff violated the department’s code of conduct has not record relating to the two criminal charges in 2022. Although the SPD’s charges relating to his conduct. Furthermore, the trial court annulled the see RSA 625:9, II(b) (2016), the plaintiff was never convicted o f any criminal