Supreme Court grants Concord officers immunity after unlawful arrest

Last modified: Wednesday, December 30, 2015
The New Hampshire Supreme Court has ruled that two former Concord police officers are immune from legal responsibility for wrongfully arresting a Concord man for a crime that no longer existed.

The decision has implications beyond the capital, according to the man’s attorney, as it ratchets up the threshold on lawsuits from those who believe their rights have been violated by public officials.

The case involved John Farrelly, who was arrested by Concord police in February 2009 after sending a series of incendiary emails to his ex-girlfriend. The woman then contacted the police department and the officers, Walter Carroll and Eric Pichler, arrested Farrelly on charges of harassment. Because Farrelly’s last message had been sent within 12 hours, they did so without a warrant.

But the arrest was not entirely straightforward. The woman’s father and uncle were each retired Concord officers, and Carroll had worked with her father and known her since she was young, according to court records.

During the arrest, Pichler allegedly remarked to Farrelly, “That’s what you get for f---ing with a 30-year veteran of the Concord PD.”

The officers were later informed that the statute by which they arrested Farrelly had been ruled unconstitutional years later, and the charges were dropped. Farrelly’s record has since been expunged. Both he and his attorney, Jonathan Meyer, said Monday that this was his only arrest.

“I didn’t do anything wrong,” Farrelly said. “They made me out to be a criminal and what I did was not against the law.”

Officers are permitted to arrest someone without a warrant if they believe that person is a credible threat. In this case, though, Pichler later conceded in a deposition that Farrelly was “probably not” dangerous at the time of his arrest.

Farrelly sued for a host of alleged violations, including malicious prosecution, false imprisonment, negligence, violation of his rights of free speech and protection against unreasonable search and seizure. The superior court dismissed the suit on immunity grounds, saying it agreed that the arrest had been unlawful, possibly even negligent, but that there was no evidence the officers’ actions had been “wanton” or “reckless.”

In its ruling last week, the high court upheld the lower court’s decision, albeit acknowledging “a close case.”

“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.”

Meyer said the court has previously ruled that evidence of negligence alone is not enough to lift the official immunity protections given to an officer.

“This case, though, involves a claim that they were not only negligent, but also that they intentionally violated Farrelly’s rights,” he said.

The court is saying now that officers are also immune if the claim does not include an allegation that their actions were malicious.

In the ruling, Justice Robert Lynn noted that Pichler’s alleged comment had little legal weight.

“The comment may show Pichler’s intent or motivation to protect someone with a connection to the Concord police, but it does not show an intent to do so unlawfully,” he wrote.

Meyer said he was disappointed by the decision, in part because of the “veritable minefield of immunities” that exist for public officials.

“From my point of view, the concern is partly about just the fact of having not prevailed in this case, but the bigger concern is the implications that this decision has for other clients have now who believe their rights have been violated,” he said.

Gilles Bissonnette, staff attorney for the American Civil Liberties Union of New Hampshire, which filed a joint brief in the case, issued a similar statement Monday.

“No citizen can escape punishment by claiming that he or she did not know the law,” he said in an email. “It is only fair that those charged with enforcing our laws – our sworn officers – be held to the same standard.”

For his part, Farrelly just wishes the whole thing never happened. He said the arrest was both humiliating and physically jarring, as he had a shoulder injury that was aggravated by his hands being handcuffed behind his back.

“It’s never really been about the money,” he said. “It’s about how can they get away with this.”

(Jeremy Blackman can be reached at 369-3319, jblackman@cmonitor.com or on Twitter @JBlackmanCM.)

Correction: An earlier version of this story incorrectly identified the author of the ruling. It was Justice Robert Lynn, not Chief Justice Linda Dalianis.