Supreme Court Recognizes Statutory Immunity for NH Police Officers

Charles P. Bauer
Published on : 2011-09-05

In an opinion issued in September 2011 in Estate of Countie v. Town of Epping, et al., the NH Supreme Court recognized for the first time that NH municipal police officers are entitled to general statutory immunity. R.S.A. 507-B:5 provides statutory immunity to municipalities, officers and departments for all common law claims except a narrow category of negligence claims — those arising out of the ownership, occupation, maintenance, or operation of municipal motor vehicles or municipal premises. See R.S.A. 507-B:5 and B:2.

In this case, the Estate of Countie asserted negligence claims against the Town and police officers arising out of the murder by Sheila Labarre of Kenneth Countie. For a vivid account of the facts surrounding the murder, see State v. Labarre, 160 N.H. 1 (2010).

Under 507-B:4, IV, the individual officers named in the suit were immune from the negligence claim as long as they were (1) acting within the scope of their office and (2) in good faith. The NH Supreme Court ruled that to survive a claim of immunity under R.S.A. 507-B:4, IV, a plaintiff must allege “facts” — not just conclusory allegations — from which a jury could find that an officer acted in “bad faith.” Allegations of willful, wanton, or grossly negligent misconduct are not enough to defeat statutory immunity. The Court ruled that the NH Legislature, in protecting municipal employees, intended to extend immunity to NH police officers for all but intentional “bad faith” conduct.

The NH Supreme Court assumed, without needing to decide, that the negligence claim against the Town of Epping was properly dismissed based on statutory immunity pursuant to R.S.A. 507-B:5.

The decision in Countie continues the judicial trend of recognizing and extending immunities and defenses to municipal police officers, municipal officials, and municipalities. See Everitt v. Town of Hooksett, et al., 156 N.H. 202 (2007) (official and imputed immunity); Tarbell v. City of Concord, 157 N.H. 678 (2008) (discretionary function immunity).

* Charles Bauer and Samantha Elliott are licensed to practice in New Hampshire.