The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge
In a case that arises from her arrest by officers of the Nashua Police Department, Catherine Bleish is suing in thirteen counts. By means of 42 U.S.C. § 1983,*fn1 she assert claims for violation of her rights under the Federal Constitution (Counts I-V), and she also asserts claims under the common law of New Hampshire (Counts XI-XVI).*fn2 Before the court are cross motions for summary judgment. For the reasons that follow, Bleish's motion is denied and defendants' motion is granted.
Summary Judgment Standard
"To prevail on summary judgment, the moving party must show that 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Markel Am. Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 29 (1st Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). "[A]n issue of fact is genuine if 'a reasonable jury could resolve it in favor of either party.'" Markel, 674 F.3d at 29-30 (quoting Basic Controlex Corp. v. Klockner Moeller Corp., 202 F.3d 450, 453 (1st Cir. 2000)). "In determining whether a genuine issue of material fact exists, [the court] construe[s] the evidence in the light most favorable to the non-moving party and make[s] all reasonable inferences in that party's favor." Markel, 674 F.3d at 30 (citing Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004)).
"The object of summary judgment is to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corp. de P.R. para la Diffusion Publica, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).
"The non-movant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Sanchez-Rodriguez v AT&T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)). "However, 'a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the non-movant's burden.'" SanchezRodriguez, 673 F.3d at 9 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005)). "Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim." SanchezRodriguez, 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal quotation marks omitted).
Where, as here, the court is presented with cross motions for summary judgment, the summary judgment standard is applied to each motion separately. See Am. Home Assur. Co. v. AGM Marine Contrs., Inc., 467 F.3d 810, 812 (1st Cir. 2006) (citing Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997)). In other words, "[t]he presence of cross-motions for summary judgment neither dilutes nor distorts [the] standard of review." Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006)).
Both plaintiff and defendants agree that the operative facts of this case are contained in three video recordings submitted to the court by agreement of the parties. One of the recordings was made by Bleish. The court has viewed all three. The following narrative is drawn from those recordings, as supplemented by other evidence in the summary judgment record.
On March 20, 2010, Patrolmen Matthew DiFava and Timothy MacIsaac of the Nashua Police Department ("NPD") arrested Lewis Labitue for possession of marijuana at a demonstration at Library Hill in Nashua. Bleish recorded Labitue's arrest. As she was doing so, she made various comments to the arresting officers, many of them phrased as questions. They did not respond. As the officers escorted Labitue to their cruiser, Bleish followed, both recording the arrest and continuing to call out to the officers. As the officers were putting Labitue into their cruiser, Patrolman DiFava, who was directly in front of Bleish, told the crowd:
You guys need to get away from the police cruiser.
OK? It's disorderly conduct. You're hindering a police investigation. You have to get off the sidewalk.
The sidewalk to which Patrolman DiFava referred is located directly adjacent to the curb of the street on which the cruiser was parked. After Patrolman DiFava warned the crowd to get away from the cruiser, Bleish reached into it with her video camera, through an open window, and engaged in a brief conversation with Labitue. Patrolman MacIssac then told Bleish to get out of the car. She did so.
After Patrolmen DiFava and MacIssac placed Labitue in their cruiser, Patrolman DiFava attempted to drive away. He was blocked from doing so by several demonstrators, including Nicholas Krouse, who had taken positions in the street, directly in front of the cruiser. Patrolman MacIsaac got out of the cruiser, spoke with Krouse, and told him to get out of the road or get arrested. Krouse did not move, and Patrolman MacIsaac began to place him in handcuffs. Bleish, also standing in the street, recorded the handcuffing at close range and continued speaking to the arresting officers. As Krouse was being handcuffed, Patrolman MacIsaac was ordering the demonstrators to back up and get out of the road. Then Officer DiFava said, directly in front of Bleish:
Back up. Get on the sidewalk now. People are getting arrested. You're getting in our space and you're hindering our investigation.
Bleish did not move to the sidewalk.
Thereafter, Patrolmen DiFava and MacIsaac moved Krouse from the front of the cruiser to the back, walking along the street side of the cruiser rather than on the sidewalk. Bleish followed. While kneeling at the back of the cruiser, Krouse asked someone to take a picture of his wrists. Bleish moved in with her video camera and got the shot Krouse requested, from a foot or two away. Then, when she saw Patrolman DiFava take a canister of pepper spray from his holster, Bleish yelled: "Do not mace him. Stop it. Stop it. He's holding mace."
While the patrolmen were dealing with Krouse at the back of the cruiser, about a dozen demonstrators were out in the street surrounding the officers and their cruiser. The next thing Bleish's recording shows, after a brief break, is Patrolman Todd Moriarty standing in the middle of the street, facing the cruiser, with a police dog.*fn3 At all times, Patrolman Moriarty kept the dog between his legs, and held it tightly on a short leash. Bleish was standing with her back against the cruiser, on the street side of the vehicle, at least five feet away from Patrolman Moriarty and the dog. Patrolman Moriarty, addressing Bleish, said: "Get on the curb. Get on the curb. You're going to get arrested if you don't get on the curb." Immediately thereafter, he told Officer Charles MacGregor: "Take her into custody. Lock her up right now." Officer MacGregor then arrested Bleish. Officer Eric Walker transported Bleish to the Nashua police station for booking.
When Officer MacGregor arrested Bleish, he placed her in handcuffs, and allowed another demonstrator to take her video camera. Officer MacGregor and another officer escorted Bleish to a cruiser, each one holding her on her upper arm with one hand. At the door of the cruiser, Bleish repeatedly asked the officers to unhand her, stating that if they let her go, she would comply with their orders. They let go of her arms.
Bleish was charged with disorderly conduct, in violation of N.H. Rev. Stat. Ann. ("RSA") § 644:2, II(d). Her criminal complaint alleged that she, [i]n a public place in said Nashua, known as Library Hill did knowingly engage in conduct which substantially interfered with a criminal investigation to wit: did position her body over Officer DiFava while Officer DiFava and Officer MacIsaac were attempting to arrest a subject and refused to comply with the lawful order of Officer Moriarty to desist and continued to interfere.
Pl.'s Mot. Summ. J., Ex. B (doc. no. 24-4), at 2. After a bench trial in the Nashua District Court, Bleish was acquitted. In his order, Judge Michael Ryan wrote:
The defendant then positioned herself within two feet of the officers as they tried to pick up the arrested individual and move him to their cruiser. It was the act of positioning herself so close to the officers that the State asserted at trial was how the defendant "knowingly engaged in conduct which substantially interfered with a criminal investigation." The State introduced no evidence that the defendant "did position herself over Officer DiFava" while he and Officer MacIsaac were arresting the individual as alleged in the Complaint. The Court finds that the State has failed to prove beyond a reasonable doubt that the defendant "substantially interfered" with a criminal investigation by the actions alleged in the Complaint. The Court enters a finding of not guilty.
The Court advises the defendant that while it must make a finding of not guilty based on the State's failure to meet its burden of proof beyond a reasonable doubt by the evidence presented that a crime was committed as alleged in the Complaint, the Court does not condone or approve of her actions. By joining with other individuals to surround the officers and their cruiser and then by positioning herself extremely close to the officers as they made the arrest, the defendant helped to create a hostile and potentially very dangerous situation for all involved.
Pl.'s Mot. Summ. J., Ex. C (doc. no. 24-5), at 3.
Based on the foregoing, Bleish initially sued in eighteen counts, five of which have already been dismissed. See Order of Dec. 9, 2011 (doc. no. 22) (dismissing claims brought under the New Hampshire Constitution). What remain, then, are Bleish's claims that: (1) five officers of the NPD maliciously prosecuted her in violation of the Fourth Amendment to the United States Constitution (Count I); (2) five NPD officers used excessive force against her in violation of the Fourth Amendment (Count II); (3) five NPD officers violated her First Amendment rights to free speech, freedom of the press, and freedom of assembly by arresting her (Counts III-V); (4) five NPD officers are liable for intentional infliction of emotional distress (Count XI), false imprisonment (Count XII), assault (Count XIII), and battery (Count XIV) under the common law of New Hampshire; (5) NPD Chief Donald Conley is vicariously liable for the common-law torts of the five NPD officers; (6) the City of Nashua ("City") is vicariously liable for the common-law torts of Chief Conley and the five NPD officers; (7) the City is liable for negligently training and supervising Chief Conley and the five NPD officers; and (8) Chief Conley and the NPD are liable for negligently training and supervising the five NPD officers.
Both sides have moved for summary judgment on all of Bleish's claims. The court considers each claim in turn.
Count I is Bleish's claim that Patrolmen Moriarty, DiFava, and MacIsaac, and Officers MacGregor and Walker (hereinafter "the defendant officers") violated her rights under the Fourth Amendment by subjecting her to a criminal prosecution without probable cause and with malice. Specifically, she asserts that "Defendants deprived [her] of her liberty when they arrested her and initiated the Disorderly Conduct charge against her."
Compl. (doc. no. 1) ¶ 30.
Bleish argues that the undisputed facts establish all the elements of a Fourth Amendment malicious-prosecution claim. Defendants contend that: (1) the court of appeals for this circuit has never held that the Fourth Amendment provides protection against malicious prosecution; and (2) even if the First Circuit were to determine that the Fourth Amendment provides such protection, any formulation of a Fourth Amendment malicious-prosecution claim would require a seizure without probable cause, and here, there was probable cause for Bleish's arrest. Bleish responds by pointing out the First Circuit has not foreclosed the legal theory on which Count I is based.
According to the court of appeals, "[i]t remains an unanswered question whether a malicious prosecution claim is cognizable under the Fourth Amendment." Harrington v. City of Nashua, 610 F.3d 24, 30 (1st Cir. 2010) (citing Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007) ("[a]ssuming without deciding that such a claim is cognizable under § 1983 . . ."); Nieves v. McSweeney, 241 F.3d 46, 54 (1st Cir. 2001)). In Harrington, the court of appeals "assume[d], without deciding, that malicious prosecution can embody a Fourth Amendment violation," 610 F.3d at 30, but resolved the question before it without saying what the elements of such a claim might be. In Britton v. Maloney, the court of appeals assumed "that the type of conduct which constitutes a malicious prosecution under state law can sometimes constitute a violation of the Fourth Amendment as well." 196 F.3d 24, 28 (1st Cir. 1999) (citing Carey v. Piphus, 435 U.S. 247, 258 (1978)).
Under the common law of New Hampshire, "to prevail on a civil malicious prosecution claim, the plaintiff must prove: (1) that [she] was subjected to a civil proceeding instituted by the defendant; (2) without probable cause; (3) with malice; and (4) that the proceedings terminated in the plaintiff's favor." Paul v. Sherburne, 153 N.H. 747, 749 (2006) (citing ERG, Inc. v. Barnes, 137 N.H. 186, 190 (1993)). Regarding probable cause:
It is well settled that in the context of a malicious prosecution claim, probable cause is defined as "such a state of facts in the mind of the prosecutor as would lead a [person] of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty."
Paul, 153 N.H. at 749 (quoting Stock v. Byers, 120 N.H. 844, 846 (1980)). "Whether there was probable cause is ultimately . . . a question of law to be determined by the court." Paul, 153 N.H. at 750 (citation omitted). Bleish's claim fails due to the existence of probable cause for her prosecution.
Bleish argues that because her arrest was not supported by probable cause, there was no probable cause for her prosecution. As the court explains in detail its discussion of Count II, infra, Bleish's arrest was supported by probable cause. Accordingly, her argument is unavailing.
However, because the court's analysis of probable cause to arrest focusses on RSA 644:2, II(e) rather than the offense for which Bleish was prosecuted, the court turns to that statute. Bleish was prosecuted for violating RSA 644:2, II(d), which makes it unlawful for a person to "[e]ngage[ ] in conduct in a public place which substantially interferes with a criminal ...