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John Farrelly v. City of Concord

October 1, 2012

JOHN FARRELLY
v.
CITY OF CONCORD, N.H.; ERIC J. PICHLER; AND WALTER CARROLL



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

Opinion No. 2012 DNH 166

AMENDED ORDER

John Farrelly has sued in eight counts, asserting both federal and state claims arising out of his arrest by Officer Eric Pichler of the Concord Police Department, and his prosecution, in 2009, for violating N.H. Rev. Stat. ("RSA") § 644:4, I(f), which had been ruled unconstitutional by the New Hampshire Supreme Court in 2005. Before the court are Farrelly's motion to amend his amended complaint and defendants' motion for summary judgment. Each motion is duly opposed. The court heard oral argument on defendants' motion for summary judgment on July 27, 2012. For the reasons that follow, Farrelly's motion to amend is granted, and defendants' motion for summary judgment is granted in part and denied in part.

Motion to Amend

Farrelly moves, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, to amend his complaint. He seeks to correct three typographical errors in his factual narrative and to bring his claims into conformance with the evidence of record and certain arguments that have already been joined by the defendants in their motion for summary judgment. Specifically, he seeks to amend Counts III, VII, and VIII. Defendants object, arguing that the relevant rule of procedure is 16(b) rather than 15(b), and that Farrelly has not established the "good cause" required by Rule 16(b). Farrelly does not acknowledge the standard established in Rule 16(b), or attempt to meet it. Strictly speaking, he is probably not entitled to amend his complaint. However, defendants have addressed the relevant issues raised by Farrelly's proposed amendments in their motion for summary judgment and so, would not be prejudiced if the court were to allow Farrelly to amend his complaint again.*fn1 For that reason, Farrelly's motion to amend is granted. That said, while the proposed amended complaint, document no. 40-1, bears the caption "Amended Complaint," the court will refer to that document as "Second Amended Complaint," to distinguish it from document no. 32, which is Farrelly's first amended complaint.

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)). "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. Corporacion 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).

Background

Unless otherwise indicated, the following facts are undisputed.*fn2

For approximately three years, Farrelly lived with Kerri Corliss and her young daughter, Hanah. Farrelly and Corliss broke up in November of 2008. The events giving rise to this case began with e-mails Farrelly sent to Corliss about three months later, on February 16, February 18 (three e-mails), and February 21 of 2009.

In response to Farrelly's February 16 e-mail, titled "WHY ARE YOU SO MEAN TO HANAH?", Corliss e-mailed the following response:

[S]top contacting me or I will go to the police for blackmail and harassment. My father has already warned you, and has begged me to go to the police!!! Hanah is not your child, and I will [be] and am doing everything to keep you away from her.

Answer, Ex. B (doc. no. 34-2), at 4. Farrelly responded with three e-mails on February 18 (sent at 6:06, 7:29, and 8:35 p.m.) in which he expressed his disapproval of Corliss's new nipple piercings and his concern over what Hanah would think of them. The full text of the first e-mail is as follows:

HAPPY 30TH BIRTHDAY A DAY EARLY. I hope you like your new piercings, just wait until Hanah sees them. What were you thinking of??? You are a Mother for God's sakes.

Id. at 3. The full text of the second e-mail is as follows:

WHAT EVER KERRI. SO I HEAR EVERYONE AT THE HOSPITAL SAW YOUR NEW NIPPLES PIERCINGS. WHY HAVE YOU TURNED INTO SUCH A TRAMP? S [sic] WHAT IS HANAH GOING TO THINK OF THEM?

Id. at 4. The full text of the third e-mail is as follows:

WHY CONTACT GEORGE WITH REGARDS TO YOUR NIPPLE PIERCINGS? HE JUST CALLED ME TO ASK WHERE I HEARD ALL ABOUT THIS AND I SAID WHAT DIFFERENCE DOES IT MAKE. IT WASN'T GEORGE. WHEN YOU SHOW IT TO AS MANY PEOPLE THAT YOU SHOWED THE PICTURES TO DON'T YOU THINK THAT IT WOULD GET BACK TO ME.

SO NOW I KNOW WHERE THE TAX RETURN IS GOING. DON'T SAVE A DIME. SPEND IT ON CRAZY SHIT. WHAT'S NEXT? A TRAMP STAMP? MORE FALSE ADVERTISING.

NO WONDER YOU MOVED OUT WHEN YOU DID. YOU DIDN'T WANT ANY OF THE TAX MONEY TO BE SPENT ON PAYING YOUR DEBT OFF. DON'T WORRY THOUGH AS I AM STILL THINKING ABOUT A CIVIL CASE TO GET MY MONEY BACK FROM YOU. I HAVE ALL THE CHECKS AND ALL THE CREDIT CARD RECEIPTS. I BET A JUDGE WON'T SEE IT ALL YOUR WAY. AFTER ALL IT ALL BEING A GIFT AS YOU SAY JUST DOESN'T MAKE SENSE. WHO EVER HEARD OF A GIFT FOR A CROWN FOR YOUR TOOTH. HAVE A[N] AWFUL LIFE AND HOPEFULLY HANAH DOESN'T GROW UP TO BE LIKE YOU.

Id. at 5.

In the early morning hours of February 21, Farrelly sent Corliss a relatively long e-mail, titled "HAPPY 30TH YOU LYING CHEATING HERPES CARRYING JEZEBEL." Answer, Ex. B (doc. no. 34-2), at 1. In the Jezebel e-mail, Farrelly: (1) called Corliss a "little slut"; (2) threatened to show up at her birthday party and announce that she had given him herpes and had stolen $100,000 from him; and (3) described two incidents of a sexual nature involving Corliss. See id. at 1-2. In one of those descriptions, Farrelly wrote about Corliss: "stripp[ing] off [her] top," id. at 1; "rubb[ing] [her] $6000.00 TITS" in a man's face, id.; and then "invit[ing] him to play and suck on them," id. In the other, he mentioned a man he referred to as "the love of [Corliss's] life where [she] told him in front of everyone" that she wanted to perform an act of oral sex on him. Id. at 2.

On the morning of February 21, shortly after she received the Jezebel e-mail, Corliss went to the Concord Police Department to complain about Farrelly. She initially spoke with Lieutenant Walter Carroll, a shift superintendent. Lt. Carroll had Corliss meet with Officer Eric Pichler, who wrote, in his narrative report: "She told me that she was scared he was going to show up at her [birthday] party and hurt her or her daughter. She was very emotional and had tears in her eyes while talking with me." Answer, Ex. A (doc. no. 34-1), at 2. At his deposition, Officer Pichler described his interview with Corliss:

Q. Now, you said that Ms. Corliss didn't necessarily want you to arrest Mr. Farrelly. Did she tell you what she wanted you to do?

A. She told me that she was scared that he, Mr. Farrelly, kept contacting her, that his communications were upsetting her and she felt harassed and wanted the communication to stop. She wanted him out of her life.

Q. Did she say when she was scared what she [was] afraid of? Did she tell you?

A. She told me that there were several instances where Mr. Farrelly's anger, where he got out of control, as she described it, and she felt that her, that she was in danger of being injured or being hurt. She had mentioned several times that they did get physical, not all the times that that happened were the police involved, but as far as this specific instance her main concern was that she didn't want it to arise to that level. She felt that if he kept communicating with her and showed up at her party that something might happen and she feared for her safety and the safety of her daughter. . . . .

Q. But did Ms. Corliss ever verbalize to you any specific concern that she had for Mr. Farrelly that he was going to do something specific to her?

A. Not at this time. She didn't know. She was afraid that something might happen, but she didn't say that he made any specific threats or else I would have pursued criminal threatening.

Defs.' Mot. Summ. J., Moskowitz Aff., Ex. 1, Pichler Dep. (doc. no. 36-3), at 53-54, 57. Officer Pichler also took a written statement from Corliss that says, in its entirety:

I lived w/ John Farrelly for three years.

[O]n Thanksgiving I had to call the police for his aggressive behavior. I moved out the next day.

[H]is phone calls and emails to my friends and family have been ongoing. I have asked him to stop several times, he has failed to do so.

His emails are harassing, and say inappropriate things about me, my friends and family.

Id. at 4. In addition to giving a statement, Corliss provided Officer Pichler with both the e-mails she had received from Farrelly and e-mails exchanged between Farrelly and her father, James Cross. It is undisputed that Cross is a retired Concord police officer.

After speaking with Corliss, Officer Pichler consulted with Lt. Carroll. Among other things, the two officers compared Farrelly's conduct, as reported by Corliss, to the conduct prohibited by New Hampshire's harassment statute, RSA 644:4, as reported in the 2008-2009 edition of the New Hampshire Criminal Code Annotated published by LexisNexis. In particular, they discussed the applicability of RSA 644:4, I(b) and (f). In the version of the criminal code they were using, under the heading "Notes to Decisions," the section on RSA 644:4 includes an annotation indicating that RSA 644:4, I(f) had been declared unconstitutional by the New Hampshire Supreme Court in State v. Pierce, 152 N.H. 790 (2005). Neither officer took notice of the annotation.

Shortly after noon on February 21, Officer Pichler went to Farrelly's residence, to get his side of the story. When Officer Pichler arrived, accompanied by another officer, Farrelly said that he knew why the officers were there, explained that he was intoxicated when he sent the Jezebel e-mail, and then apologized for sending it. Farrelly also admitted that he had received Corliss's e-mail asking him to stop contacting her, and "that his language was pretty vulgar in the e-mails," Pichler Dep. (doc. no. 36-3), at 84. At his deposition, Officer Pichler testified that when he spoke with Farrelly, Farrelly did not "say or do anything . . . that suggested he was a threat to Ms. Corliss's safety." Id. at 50. Officer Pichler also testified that he did not determine that Farrelly "presented a credible present threat to [Corliss's] safety." Id. at 51.

Officer Pichler then arrested Farrelly, without a warrant, for criminal harassment. He made a warrantless arrest because he thought he was permitted to do so by RSA 594:10, I(b), based on his belief that Farrelly had committed domestic abuse, as defined in RSA 173-B:1, I, within the previous twelve hours.

At his deposition, Farrelly testified that as the two officers were escorting him down the stairs of his residence, Officer Pichler told him: "This is what you get for fucking with a 30-year veteran of the Concord PD." Pl.'s Obj., Farrelly Dep. (doc. no. 38-6), at 4. Defendants have produced evidence that Pichler said no such thing, and that he did not learn, until after this action was filed, that Corliss's father had once been a Concord police officer. See Pichler Dep. (doc. no. 36-3), at 102-03. The record also includes evidence that Lt. Carroll had worked with Corliss's father for approximately twenty years, and that he was acquainted with Corliss herself. See Defs.' Mot. Summ. J., Moskowitz Aff., Ex. 2, Carroll Dep. (doc. no. 36-4), at 8-12.

Three days after Farrelly was arrested, four criminal complaints were sworn out against him, three for the e-mails he sent on February 18 and one for the Jezebel e-mail. Officer Pichler and Lt. Carroll worked together to draft the complaints.*fn3

Each complaint charged Farrelly with the offense of harassment, in violation of RSA 644:4, based on allegations that Farrelly did PURPOSELY communicate through e-mail with a purpose to annoy another, to wit, Kerri Corliss, in that the defendant sent Corliss an e-mail after she previously notified him on 02/17/2009 at 0806 not to contact her for any reason or she would call the police, the communication being not for a lawful purpose.

Answer, Ex. D (doc. no. 34-4), at 1. That charge closely tracks the language of the provision declared unconstitutional in Pierce, under which "[a] person is guilty of a misdemeanor" when he or she [w]ith the purpose to annoy or alarm another, having been previously notified that the recipient does not desire further communication, communicates with such person, when the communication is not for a lawful purpose or constitutionally protected.

RSA 644:4, I(f). The charges against Farrelly were dropped before trial, due to the unconstitutionality of RSA 644:4, I(f).

Farrelly has sued in eight counts. By means of 42 U.S.C. § 1983, he claims that defendants violated his federal constitutional rights to: (1) due process (Count I); freedom of speech (Count II); and (3) freedom from unreasonable seizure (Count III). He also uses § 1983 to bring a claim titled "Failure to Supervise Prosecutorial Function" against the City of Concord (Count VII). In addition, Farrelly asserts a claim under the New Hampshire Constitution (Count VI), and claims under the common law of New Hampshire for: (1) malicious prosecution (Count IV); (2) false imprisonment (Count V); and (3) negligence (Count VIII).

Discussion

Defendants move for summary judgment and advance the following arguments: (1) the entire action is barred by RSA 594:13, because Farrelly's arrest was lawful, due to the existence of probable cause to arrest him for violating RSA 644:4, I(b), under which it is a misdemeanor for a person to "[m]ake[ ] repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another"; (2) defendants Pichler and Carroll are protected by qualified immunity, which entitles them to summary judgment on Counts I, II, and III; (3) the City of Concord ("City") is protected by "municipal immunity,"*fn4 which entitles it to summary judgment on Counts I, II, III, and VII; (4) all defendants are protected by statutory immunity,*fn5 which entitles them to summary judgment on Counts IV, V, VI, and VIII; (5) Officer Pichler and Lt. Carroll are protected by official immunity, and the City is protected by vicarious official immunity, which entitles them to summary judgment on Counts IV, V, VI, and VIII; and (6) the City is protected by discretionary-function immunity, which entitles it to summary judgment on Count VIII. Farrelly disagrees, categorically. In the discussion that follows, the court considers each of Farrelly's claims individually, beginning with his federal claims.

A. Federal Claims

Farrelly brings all of his federal claims through the mechanism of § 1983, under which [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress 42 U.S.C. § 1983. "To make out a viable cause of action under section 1983, a plaintiff must allege that the defendants, while acting under color of state law, deprived him of rights secured by the Constitution or federal law." Rojas-Velazquez v. Figueroa-Sancha, 676 F.3d 206, 209 (2012) (citing Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011)). While § 1983 permits claims against individuals "acting under color of state law," Rojas-Velasquez, 676 F.3d at 209, "a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). "Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government entity is responsible under § 1983." Id.

1. Count I: Due Process

Without specifying the particular defendant(s) to which it applies, Count I states, in full:

The action of Defendants in arresting the Plaintiff under a criminal statute which had been previously determined to be unconstitutional violated the Plaintiff's right to the Due Process of Law. Second Am. Compl. (doc. no. 40-1) ¶ 33.

Of the three defendants in this case, only one of them, Officer Pichler, arrested Farrelly. Farrelly does, however, allege that the decision to arrest him was "approved by Defendant Carroll on behalf of the Concord Police Department," Second Am. Compl. ¶ 22, which at least hints at a claim for supervisory liability against Lt. Carroll, see Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012) (describing the circumstances under which a claim based on supervisory liability may arise under § 1983) (citing Welch v. Ciampa, 542 F.3d 927, 937 (1st Cir. 2008)). While Farrelly's complaint and his memorandum of law are far from clear on this point, and generally speak of defendants collectively rather than in terms of individual liability, the court will presume that to the extent that Counts I, II, and III assert claims based on Farrelly's arrest, his claims against Lt. Carroll rest on a theory of supervisory liability. But see Grajales, 682 F.3d at 47 (explaining, in the context of a § 1983 supervisory liability claim, that "the case law requires a separate assessment of the potential liability of each of the defendants") (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)).

Defendants argue that they are entitled to summary judgment on Count I because: (1) there was probable cause to arrest Farrelly for violating RSA 644:4, I(b), which renders his arrest lawful under RSA 594:13; (2) Officer Pichler and Lt. Carroll are entitled to qualified immunity; and (3) the City is entitled to municipal immunity. Farrelly contends that: (1) the Federal Constitution and the policies behind 42 U.S.C. § 1983 trump RSA 594:13;*fn6 and (2) the defendant officers are not entitled to qualified immunity.

Defendants' municipal-immunity argument and Farrelly's response to it raise an issue that merits some attention. Under the rubric of "municipal immunity," defendants argue that: (1) the City may not be held vicariously liable for the conduct of Officer Pichler and Lt. Carroll under § 1983;*fn7 (2) Officer Pichler and Lt. Carroll did not violate Farrelly's constitutional rights, which entitles the City to judgment as a matter of law on Farrelly's Monell claim(s), i.e., claim(s) that his constitutional rights were violated as a result of the execution of a municipal policy or custom; and (3) even if Officer Pichler and Lt. Carroll did violate Farrelly's constitutional rights, Farrelly has failed to identify a municipal policy or custom the execution of which caused his injury. Farrelly responds by arguing that "[i]t is clear from the officers' testimony that they were not informed about the three year old ruling on RSA 644:4(I)(f), or the need to consult annotations . . . [and] that those failures directly led to [his] arrest." Pl.'s Mem. of Law (doc. no. 38-1), at 14.

Before addressing the merits of Farrelly's Monell claim(s), the court must first determine which count or counts in the second amended complaint assert a claim or claims for Monell liability.

Plainly, such a claim is stated in Count VII. The City is the only defendant identified in Count VII, and the claim stated therein refers to the City's policy or custom of failing to adequately: (1) educate its officers on recent decisions of the New Hampshire Supreme Court; and (2) train its officers in how to ascertain the constitutionality of the criminal statutes they are charged with enforcing. What is less clear is whether Monell claims are also stated in Counts I-III.

On the one hand, the only fact alleged in those counts is Farrelly's arrest; those counts say nothing about any policy or custom instituted or maintained by the City. On the other hand, each of those counts asserts liability against defendants, not just Officer Pichler and Lt. Carroll. Farrelly's memorandum of law in support of his objection to summary judgment includes the following heading: "Claims Against the City Under 42 U.S.C. § 1983," which tends to suggest that Farrelly is asserting one or more Monell claims in addition to the one stated in Count VII. While the court is mindful that Farrelly is "not entitled to raise new and unadvertised theories of liability for the first time in opposition to a motion for summary judgment," Calvi v. Knox Cnty., 470 F.3d 422, 431 (1st Cir. 2006) (citing TorresRios v. LPS Labs., Inc., 152 F.3d 11, 15-16 (1st Cir. 1998)), the court cannot say that Counts I-III, as sketchy as they are, do not at least "vaguely insinuate[ ]" Monell claims, see Calvi, 470 F.3d at 430 (affirming district court's decision to deem waived claims introduced for the first time in opposition to summary judgment that were not "articulated, or even vaguely insinuated in [the plaintiff's] complaint"). And, in any event, by mounting a "municipal immunity" defense to Counts I-III, defendants have demonstrated their understanding that Counts IIII do assert Monell claims. Accordingly, the court follows defendants in construing Counts I-III as asserting both claims against Officer Pichler and Lt. Carroll and Monell claims against the City.

That said, further discussion of Count I is warranted. It is based on a single act, Pichler's arresting Farrelly "under a criminal statute which had been previously determined to be unconstitutional." Second Am. Compl. (doc. no. 40-1) ¶ 33. According to Farrelly, the arrest violated his right to due process. See id. Given the factual allegations on which it is based, Count I cannot be understood as anything other than a claim for false arrest. Ordinarily, a false-arrest claim brought pursuant to 42 U.S.C. § 1983 asserts a violation of the plaintiff's rights under the Fourth Amendment. See, e.g., Collins v. Univ. of N.H., 664 F.3d 8, 14 (1st Cir. 2011); see also Acosta, 386 F.3d at 9. Indeed, Farrelly himself asserts a Fourth Amendment false-arrest claim in Count III.

So, the question becomes whether an allegedly false arrest can also support a claim under the Due Process Clause. In his objection to summary judgment, Farrelly cites Cook v. Sheldon, 41 F.3d 73 (2d Cir. 1994), for the proposition that "it was a violation of [his] right to procedural due process to arrest him for vindictive reasons on an invalid charge," Pl.'s Mem. of Law (doc. no. 38-1), at 9. But, the purported due-process violation in Cook did not involve the plaintiff's arrest.*fn8

Rather, the court of appeals in Cook held that "[p]rocedural due process forbids the use of legal process for a wrongful purpose," Cook, 41 F.3d at 80 (citing Torres v. Super. of Police, 893 F.2d 404, 410 (1st Cir. 1990)) (emphasis added), and drew the elements of the due-process claim from the state-law tort of malicious abuse of process, see Cook, 41 F.3d at 80 (citations omitted). As for what constitutes legal process, the defendants in Cook "clearly employed criminal process against Cook by having him arraigned on charges of illegal possession of a car with no VIN." Id.; cf. Harrington v. City of Nashua, 610 F.3d 24, 32 (1st Cir. 2010) (explaining that warrantless arrest is not legal process for purposes of Fourth Amendment malicious-prosecution claim). Here, Count I alleges an arrest under an unconstitutional statute, but makes no allegations concerning the initiation of criminal proceedings or any other use of legal process.

Based on the foregoing, two things are clear about Count I:

(1) Farrelly has identified no authority for the proposition that a false arrest may serve as the factual basis for a due-process claim; and (2) he has alleged no facts to support a claim for malicious prosecution or abuse of process. Count I, therefore, does not even state a claim on which relief can be granted, see United Auto. Workers of Am. Int'l Union v. Fortuno, 633 F.3d 37, 40 (1st Cir. 2011). Thus, Officer Pichler and Lt. Carroll are entitled to judgment as a matter of law on Count I. And, because the individual defendants are entitled to judgment as a matter of law, so, too, is the City entitled to judgment as a matter of law on Farrelly's Count I Monell claim. See City of L.A. v. Heller, 475 U.S. 796, 799 (1986) ("If a person has suffered no constitutional injury at the hands of the individual police officer[s], the fact that the departmental regulations may have authorized the use of constitutionally excessive force is beside the point").

Finally, the court notes that even if it were to construe Count I as asserting a due-process claim based not on false arrest but on malicious prosecution or abuse of process, such claims would fail as a matter of law. It is well established in this circuit "the Due Process Clause cannot serve to ground [a] federal malicious prosecution claim," Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001), and "the First Circuit does not recognize § 1983 claims based upon an alleged abuse of process," Boyle v. Barnstable Police Dep't, 818 F. Supp. 2d 284, 316 (D. Mass. 2011) (citing Faust v. Coakley, Civ. Action No. 07-11209-RWZ, 2008 WL 190769, at *4 (D. Mass. Jan. 8, 2008)); see also Santiago v. Fenton, 891 F.2d 373, 388 (1st Cir. 1989).

2. Count II: First Amendment Freedom of Speech Without specifying the particular defendant(s) to which it applies, Count II states, in full:

The action of Defendants in arresting Plaintiff for criminal harassment arising out of Plaintiff's e-mail communication with his former girlfriend violated his right to freedom of speech.

Second Am. Compl. (doc. no. 40-1) ¶ 34. In the memorandum of law in support of his objection to summary judgment, Farrelly offers further clarification of his First Amendment claim:

Defendants' attempt to convert this case into a mistake over which section of the Criminal Harassment statute was utilized fails because the arrest of the Plaintiff under either (b) or (f) of that Statute would have violated his First Amendment freedom of speech. On this date, the Supreme Court in the case of U.S. v. Alvarez, 567 U.S. ____ (2012), (plurality opinion), has reaffirmed its prior holdings that "'as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.' Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002). As a result, the Constitution 'demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality.'" Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004). Slip opinion at 4.

In its opinion, the Court made clear that content-based restrictions on speech, even false speech, are only permitted in a few "'historic and traditional categories [of expression] long familiar to the bar ..'" Slip opinion at 4-5 (citations omitted). Accordingly it held unconstitutional a federal criminal statute which prohibited false statements about military service.

The application of the Criminal Harassment Statute against the Plaintiff in this case was likewise an unconstitutional prior restraint on his freedom of speech. Although his language and ideas were blunt and controversial, and presumably not welcomed by the recipient, they did not fall under any of the exceptions to First Amendment protected speech. Pl.'s Mem. of Law (doc. no. 38-1), at 7-8.

Defendants argue that they are entitled to summary judgment on Count II because: (1) there was probable cause for Farrelly's arrest, which renders the arrest lawful under RSA 594:13; (2) Officer Pichler and Lt. Carroll are entitled to qualified immunity; and (3) the City is entitled to municipal immunity from Farrelly's Monell claim. Farrelly contends that: (1) the Federal Constitution and the policies behind 42 U.S.C. § 1983 trump RSA 594:13; (2) the defendant officers are not entitled to qualified immunity; and (3) with respect to the Monell claim in Count II, the deposition testimony of Officer Pichler and Lt. Carroll demonstrates the inadequacy of the training they were provided by the City. Defendants are entitled to the immunities they claim.

a. Qualified Immunity

Defendants argue that Officer Pichler and Lt. Carroll are entitled to qualified immunity because: (1) the facts Farrelly "allege[s] do not make out a violation of a constitutional right," Defs.' Mem. of Law (doc. no. 36-1), at 9; (2) "the law is not clear that the decision to arrest a suspect for harassment can violate a person's due process, freedom of speech, or Fourth Amendment rights," id. at 11; and (3) "Defendants Pichler and Carroll . . . could not have understood that their actions would violate Plaintiff's constitutional rights," id. at 9. Farrelly contends that Officer Pichler and Lt. Carroll are not entitled to qualified immunity because the ...


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