Municipal Law

Supreme Court Case Establishes Official Immunity for Police Officers and Police Departments in New Hampshire

September 2008

By Charles P. Bauer*

Attorney Charles P. Bauer of Gallagher, Callahan and Gartrell, P.C. in Concord, New Hampshire, successfully established "official immunity" for police officers and police departments in the State of New Hampshire in the recent case of Everitt v. Town of Hooksett, et al. 156 N.H. 202 (2007).

The New Hampshire Supreme Court recognized for the first time that police officers and police departments are entitled to "official immunity" for state law claims brought against them, including negligence, and that municipal employers are also entitled to vicarious qualified immunity for the officers' conduct. In 2008, the Superior Court (Maguire, J) granted summary judgment and dismissed the police officers and their municipal employer utilizing the newly created “official immunity” law in New Hampshire.

Official immunity for state law claims is similar — and theoretically broader — than "qualified immunity" for police officers sued for federal law claims such as excessive force and wrongful arrest under 42 U.S.C. 1983.

The New Hampshire Supreme Court held that:

“Municipal police officers are immune from personal liability for decisions, acts, or omissions that are: (1) made within the scope of their official duties while in the course of their employment; (2) discretionary, rather than ministerial; and (3) not made in a wanton or reckless manner.”

The New Hampshire Supreme Court noted that the consequences of personal liability for governmental officials include "liability for money damages" as well as "the general cost of subjecting officials to the risk of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service."

The Court determined that summary judgment may be granted whether the officers' actions meet each of the three prongs of the Everitt test. The first prong requires that the decisions, acts or omissions at issue be made within the scope of an officer's official duties and while in the course of his/her employment.

The second prong requires that the officer’s decisions were discretionary and not ministerial.

"A discretionary decision, act or omission involves the exercise of personal deliberation and individual professional judgment that necessarily reflects the facts of the situation and professional goal. Such decisions include those for which there are no hard and fast rules as to the course of conduct that one must or must not take and those acts requiring the exercise of judgment and choice involving what is just and proper under the circumstances."

As to the final prong of the Everitt test, a court must determine as a matter of law that an officer's actions were not wanton or reckless. “Wanton” means reckless indifference or disregard of consequences. Wanton conduct requires heedless and reckless disregard for another's rights with consciousness that act or omission to act may result in injury to another. Recklessness involves conduct evincing disregard of or indifference to consequences under circumstances involving danger to life or safety of others, although no harm was intended.

Mr. Bauer represented the Town of Hooksett and Hooksett Police Officers Lee and Gaskell in a case involving a motor vehicle accident with a plaintiff who was severely injured. The motor vehicle accident occurred when plaintiff was a passenger in a vehicle that was struck by another vehicle driven by Mr. Citro. Plaintiff, Ms. Everitt settled with Mr. Citro's insurance policy limit shortly after the accident and signed a release.

Prior to the accident, Mr. Citro had been employed by General Electric Company. Mr. Citro was asked to leave the GE plant and told not return for several days at which time he needed to be evaluated by the plant nurse before performing his usual duties This was required because Mr. Citro had arrived for work appearing disoriented and confused. Nevertheless, Mr. Citro appeared for work the very next day, seemingly unaware of the previous day's instruction not to report to work. Mr. Citro was again asked to leave and the Hooksett Police Department was called to remove him from the plant. Officer Lee responded, but Mr. Citro had already left the premises.

Officer Lee drove to Mr. Citro's residence, spoke with him and told him that he was not to return to the plant that day. Despite this, Mr. Citro returned to the plant gate several hours later and was detained by security guards at the plant. The police were summoned again. GE security personnel told Officer Lee that Mr. Citro was "acting strangely". The police officers administered field sobriety tests to Mr. Citro. The officers determined that Mr. Citro was not subject to protective custody or arrest and told Mr. Citro that he was free to leave but he was not to return to the GE plant until the following Monday. Approximately two (2) hours later, a motor vehicle accident caused by Mr. Citro injured the Plaintiff.

Plaintiff settled with Mr. Citro's insurance company and then filed suit against the police department and the two police officers. The Court dismissed the police officers based on official immunity and dismissed the police department and town based on vicarious official immunity and discretionary function immunity.

The Court determined that this was not a case where police officers were "truant in their duties." Rather, the Court said, “plaintiff's case boils down to ‘second guessing’ the officers' decision” not to take plaintiff into protective custody or arrest. Suits arising from this type of second guessing are just what official immunity is designed to protect:

"Law enforcement by its nature is susceptible to provoking the hostilities and hindsight second-guessing by those directly interacting with police as well as by the citizenry at large. Police officers, as frontline agents for the executive branch, are particularly vulnerable to lawsuits, whether the underlying police conduct or decision was errant or not. Unbridled exposure to personal liability and hindsight review would undoubtedly compromise effective law enforcement and unfairly expose officers to personal liability for performing inherently governmental tasks."

For these reasons, the Court found that the two police officers were entitled to official immunity as a matter of law and that their police department and employer were similarly entitled to vicarious official immunity for the officers' conduct:

"Official immunity, when available to individual public officials, generally may be vicariously extended to the government entity employing the individual. Vicarious immunity ought to apply when the very policies underlying the grant of official immunity to an individual public official would otherwise be effectively undermined. In other words, vicarious immunity applies when exposing the municipality to liability would focus stifling attention upon the individual official's job performance and thereby deter effective performance of the discretionary duties at issue."

Similarly, the New Hampshire Court held that in New Hampshire, although municipalities are subject to the same rules as private corporations if a duty has been violated or a tort committed, municipalities are immune from liability for acts and omissions that constitute “the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by the exercise of a high degree of official judgment or discretion.”

To determine whether an action is discretionary and therefore immune, the Court determined that the particular conduct which caused the injury was one characterized by a “high degree of discretion and judgment involved in weighing alternatives in making choices with respect to public policy and planning." Establishment of policies to train, supervise, monitor and discipline employees are planning and policy functions that require the discretion of government officials. Therefore, the Town was entitled to summary judgment as a matter of law based on discretionary function immunity for claims of negligence to train, supervise, monitor and discipline employees.

The case of Everitt v. Hooksett may be useful for defending other municipal officials and their employers against state law claims — including negligence — filed in state court.
* Charles Bauer is licensed to practice in New Hampshire.

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