Supreme Court weighing probable cause standards
A question before the state’s highest court has police officials and abuse prevention advocates concerned that a long-standing pillar of the criminal justice system, and the future of law enforcement in New Hampshire, may be in jeopardy.
The state Supreme Court is weighing whether police officers have a duty to fact-check victims’ claims beyond establishing probable cause, the current benchmark for making an arrest. Any change to that standard – wherein officers build reasonable suspicion that a person committed a crime – would have vast repercussions for the law enforcement community, opponents argue, exposing officers to lawsuits and weakening their ability to intervene in dangerous situations, particularly those involving domestic violence.
“If this court adopts the plaintiff’s position, the ability of the state to protect its citizens, particularly in the domestic violence arena, will be eviscerated,” Assistant Senior Attorney General Stephen Fuller wrote in a court brief submitted last week.
Others caution that concern may be overstated.
The case before the court, Lahm v. Farrington, involves a former Tilton police officer who arrested a man based on a witness account that was later called into question.
Kenneth Lahm was arrested in 2008 and charged with sexually assaulting and assaulting a woman. The charges were dropped after details in the woman’s account were disputed. Lahm sued the arresting detective, Michael Farrington, and the town of Tilton, arguing that Farrington should have investigated the woman’s claims beyond probable cause, and that he should be held accountable for negligence. The suit was thrown out by a superior court judge and is now before the Supreme Court on appeal.
Lahm’s attorney, Michael Sheehan, said the arrest and everything that ensued was humiliating. Lahm was forcibly removed from his home by a SWAT team, placed in jail for a weekend and slapped with legal fees and negative publicity.
“All are harms that cannot be put back into Pandora’s box,” Sheehan wrote in Lahm’s appeal. “If those harms could have been avoided, if that actual innocence could have been uncovered simply through a phone call or two, an interview or two, or by simply questioning the truthfulness of the victim’s otherwise uncorroborated story, then Lahm should have a recourse.”
Fuller indicated in his brief for the state that forcing officers to establish more than probable cause would leave police departments “toothless, unable to fulfill their charge to enforce the law, as individual police officers would be too afraid of incurring liability to act.”
Adding obstacles for officers would be most damaging to victims of sexual assault, the state and others contend, because their cases most often require urgency and involve little proof other than their word.
More than half of the 159 homicides in New Hampshire between 2001 and 2010 involved domestic violence, according to statistics from the state. Of those, only 6 percent of victims sought crisis center services before their deaths, and only 4 percent had a protective order in place when they died.
That means police officers responding to reported abuse are often the only barrier between perpetrators and victims.
A ruling in Lahm’s favor “could delay responses and have lethal consequences for victims,” said Lyn Schollett, executive director of the New Hampshire Coalition Against Domestic and Sexual Violence. “It’s that simple for us.”
Merrimack County Sheriff Scott Hilliard said it could also deter officers from taking action.
“It would cause complete chaos because people are going to be gun shy to want to do that,” he said in reference to arresting alleged combatants.
But Albert Scherr, an attorney and law professor at the University of New Hampshire, cautioned that the court’s decision will not likely have as vast a repercussion as some fear. A decision in Lahm’s favor could actually have benefits, Scherr said, because decent police departments already do a fair amount of digging before they lock someone up. This would force under-performing departments to up their game, he said.
“If all the police are doing is getting enough to establish probable cause, that may not bother some people, but what that arrest means is that person may have been put in jail, they may have lost their job, they may have been kicked out of school. So the consequences of being arrested are serious enough that we want police to spend the time and really do the work,” Scherr said. “By the same token, we don’t want police to have to reach absolute certainty. The idea is to reach some kind of balance.”
Merrimack County Attorney Scott Murray said that balance has already been reached. There are numerous checks already in place to protect defendants from false allegations, he said, including warrants and legal proceedings.
“You have a system that sorts that out,” he said.
Police officers across the country have long been protected against lawsuits involving the basis for probable cause. Fuller, writing for the attorney general, said New Hampshire would become the first state to set something greater than probable cause as a prerequisite for that legal immunity.
“If this standard is changed, New Hampshire will be unique in requiring some unspecified, higher standard for police officers to meet if they wish to avoid civil or tort liability when effecting an arrest,” he wrote.
(Jeremy Blackman can be reached at 369-3319,
email@example.com or on Twitter @JBlackmanCM.)