John Farrelly v. City of Concord & A
130 A.3d 548
N.H.2015Background
- Farrelly sent several harassing, vituperative e‑mails to his ex‑girlfriend; she reported them to Concord police and provided the e‑mails. Officers Carroll and Pichler interviewed both parties; Farrelly admitted sending the messages and said he would continue to contact her.
- Officers concluded a harassment crime had been committed, arrested Farrelly without a warrant under statutes permitting warrantless arrest for recent abuse, and drafted a criminal complaint citing RSA 644:4, I(f). Weeks later the prosecutor notified them subparagraph (f) had been declared unconstitutional and the charges were dropped.
- Farrelly sued Carroll, Pichler, and the City of Concord for malicious prosecution, false imprisonment, constitutional violations, and negligence. Defendants moved for summary judgment asserting official/vicarious immunity and related statutory defenses.
- The superior court held the warrantless arrest unlawful but granted summary judgment to the officers on official immunity grounds (and to the city derivatively), finding the officers’ conduct discretionary and not wanton or reckless.
- Farrelly appealed only the dismissal of malicious prosecution and false imprisonment, arguing (1) Everitt’s common‑law reckless/wanton standard conflicted with Huckins’ "reasonable belief" standard and (2) the court should have applied both subjective and objective reasonableness and denied immunity given evidence of bad faith.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Everitt’s common‑law official‑immunity standard applies to intentional torts | Everitt’s recklessness standard is inadequate for intentional torts; Huckins requires a separate "reasonable belief" (including objective component) | Everitt controls; official immunity requires lack of wanton/reckless conduct | Everitt and Huckins are consistent: official immunity for intentional torts requires that officer subjectively believed conduct lawful and that belief was objectively reasonable (i.e., not reckless/wanton). |
| Meaning of "reasonably believes" for immunity | "Reasonably believes" includes both subjective and objective elements; trial court relied only on subjective belief | No need to insert separate objective test beyond Everitt; court applied proper standard | Court adopts dual standard: subjective belief plus objective reasonableness assessed from officer’s perspective; objective unreasonableness must be more than negligence. |
| Whether summary judgment was improper because evidence raised genuine issue of subjective bad‑faith/malice | Farrelly points to Pichler’s alleged comment and the victim’s family ties to PD to show retaliatory motive and lack of lawful belief | Comment and family ties do not create factual dispute about officers’ belief; comment does not show awareness of unlawfulness | Court held the single alleged comment and family connection insufficient to create a genuine issue of material fact as to subjective belief or malice; summary judgment affirmed. |
| Vicarious immunity for the City | If officers immune, city is not liable vicariously; if officers not immune, plaintiff's statutory‑immunity arguments might differ | City argued for derivative vicarious immunity and statutory immunity under RSA chapter 507‑B | Because officers had official immunity as a matter of law, the City was entitled to vicarious immunity; summary judgment for city affirmed. |
Key Cases Cited
- Everitt v. Gen. Elec. Co., 156 N.H. 202 (2007) (adopts common‑law official immunity standard for municipal police: within scope, discretionary, and not wanton or reckless)
- Huckins v. McSweeney, 166 N.H. 176 (2014) (construes municipal statutory immunity to require officials to have reasonably believed their conduct lawful for intentional torts)
- State v. West, 167 N.H. 465 (2015) (uses dual subjective/objective instruction for "reasonably believes" in use‑of‑force context)
- Ojo v. Lorenzo, 164 N.H. 717 (2013) (sets elements for malicious prosecution and false imprisonment; probable cause as defense)
- Whren v. United States, 517 U.S. 806 (1996) (motive does not invalidate objectively justifiable police conduct)
- Progressive N. Ins. Co. v. Concord Gen. Mut. Ins. Co., 151 N.H. 649 (2005) (interprets "reasonable belief" to require subjective belief plus objective soundness)