The case of Farrelly v. City of Concord is a civil action before the United
States District Court for the District of New Hampshire. On Tuesday, 27
November 2012 at 11:00 AM I was privy to the oral arguments before the
Honorable Judge Landya McCafferty concerning a duel motion to reconsider. The motion by defendants, the City of Concord,
was to suspend an order regarding NH RSA 507-B (municipality immunity question),
pending reconsideration and appellate review if necessary. The plaintiff’s
motion was to have the court reconsider claims IV (malicious prosecution) and
VIII (negligence), which earlier had been dismissed by a motion. The malodorous
facts of Farrelly are lucid in
contrast to the procedural quandary before the parties. This essay will commence with a presentation
of the facts, followed by a discussion of the motions and in-court observations
of the actors, and conclude with a few personal remarks about courtroom
observation and the attorney’s jibes at each other.
The
story begins when Mr Farrelly started dating Ms Corliss, who is the daughter of
a 30-year veteran of the City of Concord, New Hampshire Police Department.[1] At
one point, Mr Farrelly moved in with Ms Corliss and her daughter.[2]
After the relationship dissolved, Mr Farrelly sent a total of three emails to
Ms Corliss in February 2009, expressing his disappointment in how she treated
him and her daughter.[3]
The emails allegedly contained an expletive.[4] Ms
Corliss responded by filing a complaint with the Concord Police, alleging
harassment and inappropriate language.[5] On
21 February 2009, two police officers, one being Officer Pichler, arrived at Mr
Farrelly’s apartment inquiring about the emails.[6]
After several questions, Mr Farrelly admitted to sending the emails.[7] Officer
Pichler then made a warrantless arrest of Mr Farrelly “because he thought he
was permitted to do so by RSA 594:10, I(b), based on his belief that Farrelly
had committed domestic abuse, as defined in RSA 173-B:1.”[8] Mr
Farrelly informed officers of a shoulder injury.[9]
Police officers negligently handled Mr Farrelly resulting in severe damage to
the shoulder, hip, wrist, and arm.[10] “The
charges against Farrelly were dropped [the day] before trial, due to the
unconstitutionality of RSA 644:4, I(f).”[11] After
the charges were dropped, the Concord District Court ordered Mr Farrelly’s
arrest to be annulled and voided from the record.[12]
On 16 December 2010 Mr
Farrelly launched this civil action against the City of Concord and the two
police officers stating six causes of action in his complaint.[13]
The complaint was later amended to add two additional causes of action.[14]
The reason the United States District Court for the District of New Hampshire
was able to hear the case was because one of the causes of action raised a
question of federal law and jurisdiction was asserted on account of the parties
residing in the district. The causes of action included: violation of due process;
violation of 1st Amendment rights of speech; violation of 4th Amendment rights
against unreasonable search and seizure; malicious prosecution; false
imprisonment; violation of New Hampshire’s Constitution; failure to supervise;
and negligence.[15]
In September 2012,
Judge McCafferty ruled on a motion for summary judgment and in an 86 page opinion
partially granted defendant’s motion, partially denied, and granted plaintiff’s
motion to amend the complaint.[16]
False imprisonment was the sole cause of action to survive summary judgment.[17]
The plaintiffs were permitted to bring an amendment and try again.[18]
The day I observed the
oral arguments for a duel motions to reconsidering hearing, the defense’s
motion to reconsider and have the final claim dismissed by summary judgment. That
claim is false imprisonment, which is a state law claim under common law
intentional tort. The plaintiff’s motion to reconsider was for the court to
allow two previously dismissed claims of malicious prosecution and negligence
to proceed to trial. The oral arguments lasted about one hour and 40 minutes.
The plaintiff was represented by Jon Meyer and the defendants were represented
by Charles Bauer. Only the attorneys were present before the court.
Mr
Bauer began first. He reminded Judge McCafferty of her 86 page summary decision
on the relevant issues of law in question. The defense said a majority of the
complaints were dismissed under 42 U.S.C. § 1983. The defense reminded the
court that malicious prosecution was one of the claims dismissed by the court.
The defense continued by stating that of the original 8 claims presented, only
one remains in question – the false imprisonment claim – which is a New
Hampshire state law claim. The defense
then stated that the motion for reconsideration hearing was an opportunity for
the court to re-hear the reasons for dismissing the false imprisonment claim as
a matter of law. Mr Bauer then proceeded to lecture Judge McCafferty on how she
eroded in not dismissing the false imprisonment claim and that she eroded in
entertaining the plaintiff’s motion to reconsider these formerly dismissed
claims of malicious prosecution and negligence.
The
basis for dismissing the false imprisonment claim was N.H. Rev. Stat. §507-B:2,
which concerns Liability for Negligence. RSA 507-B:2 sets forth circumstances
under which a governmental unit may be held liable for negligence.[19]
The defense states that these circumstances are limited only to pertinences (eg- sidewalks, buildings, etc.) and motor vehicles (eg- cars, trucks, planes). The defense further
argued that 13 out of 14 courts have not allowed a municipality to be held liable
for an intentional tort, such as false imprisonment, and the one court which
did allow the action to proceed involved a retired judge. The plaintiffs argue
that RSA 507-B:2 does not state or imply that a governmental unit has no
liability for intentional torts. The plaintiffs explained that if the
legislature had wanted to exclude intentional torts, then they would have been
more specific.
At this point in the
oral arguments, Judge McCafferty asked if the standard of measure was an
objective or subjective one. The judge explained the question of municipal
immunity rested on determining if the immunity is either official immunity[20]
or qualified immunity[21]? Qualified
immunity with an objective standard would preclude all intentional tort claims
against municipalities. A subjective standard would favor the plaintiff’s case.
The plaintiff’s argued
that the defendants cite no state case law to support its proposition of
official immunity, and instead rely on the federal law of qualified privilege.
Federal law, the plaintiff’s argue, is inapplicable, since it is based upon
decisions of the U.S. Supreme Court establishing an objective standard for
qualified immunity which has no counterpart in common law privileges. In 1985,
the New Hampshire Supreme Court made subjective reasonableness a constitutional
requirement which would be equally applicable to official immunity.[22] Further,
the plaintiffs state that official immunity does not bar an intentional torts
action from proceeding to trial. The plaintiffs pointed out that no proof had
been led by defendants as to why Mr Farrelly was arrested without a warrant on
the basis of a statutory clause which had been declared unconstitutional three
year earlier.
The Everitt v. Gen. Elec. Co., 156 N.H. 202
(2007) decision is considered precedential by both sides. The defendants argued
that Everitt precludes official
immunity from barring claims of intentional wrongdoing. The plaintiffs pointed
out that Everitt explicitly states
that municipalities are to be held to the same standard as corporations; and a
corporation can be liable for an intentional tort.
Both the defendants
and plaintiffs agreed that since the federal district court was acting under
supplemental jurisdiction, that a certified question on the issue of immunity
would be appropriate. Under the Erie Doctrine, federal courts which have
questions of state and federal law should apply the substantive law of the
state, in this case, New Hampshire, to the state law question(s). The Erie
Doctrine requires the federal court to predict how a state court would decide
the same question. A certified question on substantive law is not mandated, but
if the federal court agrees and the New Hampshire Supreme Court accepts, then
the highest court will be given the opportunity to rule on that question of
law.
In conclusion, this
was a very fascinating case to observe in-person, as had the legal counsel for
the City of Concord not lectured the judge on how she eroded, there might have
been much more of an opportunity to have the immunity question decided in
defendants favor. When the defense counsel said that Judge McCafferty’s
opinions were worthless as he would appeal to the First Circuit Court of Appeals
and that court would then tell her what the law is. The counsel for the
plaintiff had a funny zinger, as he made a sarcastic reference that he didn’t realize
retired judge’s opinions carried less precedential weight. Judge McCafferty
seemed quite keen to not make a judgment based on dicta. She wanted an actual
citation for where the defense was claiming the Everett case created blanket immunity. After the hearing, the two
attorneys were already discussing lunch plans and a settlement deal for other clients
they represent. I found it amazing how they had just had a heated argument
about a heavy question of law and then were capable of moving onto other
subjects without fully collecting their papers.
[1]
Complaint and Demand for Jury Trial at 2, Farrelly v. City of Concord, No. 10-cv-00583-LM
(D. N.H. Dec. 16, 2010), ECF No. 1-3.
[2]
Id.
[3]
Id. at 3.
[4]
Oral Arguments, Farrelly v. City of Concord, No. 10-cv-00583-LM (D. N.H. Nov.
27, 2012).
[5]
Answer and Affirmative Defences at 3, Farrelly v. City of Concord, No.
10-cv-00583-LM (D. N.H. Jan. 24, 2011), ECF No. 6; see Farrelly, 2012 WL 4513888, at *3.
[6]
Complaint and Demand for Jury Trial at 3, Farrelly v. City of Concord, No.
10-cv-00583-LM (D. N.H. Dec. 16, 2010).
[7]
Amended Complaint and Demand for Jury Trial at 3, Farrelly v. City of Concord,
No. 10-cv-00583-LM (D. N.H. Nov. 8, 2011), ECF No. 31-1.
[8]
Farrelly v. City of Concord, No. 10–cv–583–LM, 2012 WL 4513888, at *9 (D. N.H.
Oct. 2, 2012).
[9]
Farrelly, 2012 WL 4513888, at *4.
[10]
Order Denying Defendant’s Motion to Dismiss at 1, Farrelly (D. N.H. Sept. 12,
2011).
[11]
Farrelly, 2012 WL 4513888, at *10.
[12]
Order Denying Defendant’s Motion to Dismiss at 2, Farrelly (D. N.H. Sept. 12,
2011).
[13]
Complaint and Demand for Jury Trial, Farrelly (D. N.H. Dec. 16, 2010), ECF No.
1-3.
[14]
Amended Complaint and Demand for Jury Trial, Farrelly (D. N.H. Nov. 8, 2011),
ECF No. 31-1.
[15]
Amended Complaint and Demand for Jury Trial at 6-8, Farrelly (D. N.H. Nov. 8,
2011), ECF No. 31-1.
[16]
Farrelly, 2012 WL 4513888, at *85-86.
[17]
Id.
[18]
Id.
[19]
“A governmental unit may be held liable for damages in an action to recover for
bodily injury, personal injury or property damage caused by its fault or by
fault attributable to it, arising out of ownership, occupation, maintenance or
operation of all motor vehicles, and all premises; provided, however, that the
liability of any governmental unit with respect to its sidewalks, streets, and
highways shall be limited as provided in RSA 231 and the liability of any
governmental unit with respect to publicly owned airport runways and taxiways
shall be limited as set forth in RSA 422.”
[20]
Doctrine of official immunity protects individual government officials or
employees from personal liability for discretionary actions taken by them
within the course of their employment or official duties. RSA 99-D:1. “Official
immunity” shields public employees against lawsuits alleging common law torts,
such as negligence.
[21]
Doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which reasonable person would have known.
“Qualified immunity” shields public employees against lawsuits alleging
constitutional violations. This is also known as “good faith” immunity, meaning
it does not protect against bad faith actors. See Black’s Law Dictionary.
[22]
Opinion of the Justices, 126 N.H. 554, 564 (1985); see
also City of Claremont v. Truell, 126 N.H. 30, 39 (1985) (New Hampshire
Supreme Court held a statute should be interpreted so as to preserve its
constitutionality).
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