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NH ruling grants immunity to police

By DAVE SOLOMON
New Hampshire Union Leader

December 27. 2015 10:06PM




CONCORD — The state Supreme Court set a high bar for citizens to prevail in lawsuits against government or police officials, with a recent ruling upholding the immunity of Concord police and the city of Concord in what the judges called “a close case.”

The ruling last Wednesday stems from the 2009 arrest of John Farrelly by Concord police officers Walter Carroll and Eric Pichler after Farrelly allegedly sent a series of harassing emails to his ex-girlfriend.

The two arrested Farrelly on a charge of harassment. According to Farrelly’s testimony, Pichler told him at the time, “This is what you get for f---- with a 30-year veteran of the Concord PD.”

The ex-girlfriend’s father and uncle are retired Concord police officers. Carroll had worked with the ex-girlfriend’s father and had known her since she was a child, according to the court documents.

Because the officers believed that the crime had occurred within the past 12 hours, they arrested Farrelly without a warrant. They were later informed by the county attorney that the statute cited in Farrelly’s arrest had been ruled unconstitutional and the charges were dropped.

The warrantless arrest would have been legal only if Farrelly’s conduct presented a “credible present threat” to his ex-girlfriend’s safety.

“During his deposition, Pichler stated that the plaintiff was probably not a present threat to his ex-girlfriend,” according to the ruling.

Click below to view the ruling:



Farrelly sued the city of Concord and the two officers for malicious prosecution, false imprisonment, violation of his rights of free speech and protection against unreasonable search and seizure, and negligence.

The Superior Court judge agreed that the warrantless arrest was unlawful, but ruled that the defendants were immune from prosecution because the officers’ actions, while possibly negligent, were not “wanton or reckless.”

Farrelly appealed to the state Supreme Court, which upheld the lower court ruling granting the officers and the city of Concord immunity.

“Although the officers may have acted negligently in arresting the plaintiff without a warrant and in charging him under an unconstitutional subsection of the harassment statute, the record demonstrates as a matter of law that their actions did not rise to the level of reckless or wanton conduct sufficient to strip them of protection.”

“We once again note that this is a close case,” wrote Chief justice Linda S. Dalianis. “However we think that policy considerations weigh in favor of granting immunity to these officials.”

Dalianis cited an earlier ruling of the court in another case involving municipal police officers: “Unbridled exposure to personal liability and hindsight review of their decisions would undoubtedly compromise effective law enforcement and unfairly expose officers to personal lability for performing government tasks.

“The public simply cannot afford for those individuals charged with securing and preserving community safety to have their judgment shaded out of fear of subsequent lawsuits, or to have their energies otherwise deflected by litigation,” according to the ruling.

The American Civil Liberties Union and the Gay and Lesbian Advocates and Defenders had intervened on behalf of Farrelly, urging the Supreme Court to overturn the lower court decision granting immunity.

“The interest of the ACLU and GLAD in ensuring that all citizens have redress for constitutional violations and that municipalities educate their police officers on the law to ensure that individual rights are fully respected led to (our) involvement in this case,” wrote attorneys for the two organizations in their brief.

dsolomon@unionleader.com


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