The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
ORDER CERTIFYING QUESTION TO THE NEW HAMPSHIRE SUPREME COURT
Dennis Huckins sued Officer Mark McSweeney and the Town of Sanbornton, New Hampshire, alleging, among other claims, a claim for battery against both defendants. Sanbornton moved for summary judgment, arguing that it is statutorily immune from liability for Huckins's battery claim under N.H. Rev. Stat. Ann. ("RSA") 507-B:2 and RSA 507-B:5. Huckins does not dispute that RSA 507-B:2 and RSA 507-B:5 give Sanbornton municipal immunity but argues that the statutes are unconstitutional because they preclude entire classes of tort victims from recovering in violation of Part 1, Article 14 of the New Hampshire Constitution.
Immunity under RSA 507-B:2 and RSA 507-B:5 would be determinative of Huckins's battery claim against Sanbornton. The invocation of immunity by Sanbornton and Huckins's response require a determination of whether immunity provided by the statutes violates the New Hampshire Constitution.*fn1 No controlling precedent exists on that issue. Pursuant to New Hampshire Supreme Court Rule 34, the court certifies the question to the New Hampshire Supreme Court.
On the evening of January 20, 2009, Dennis Huckins and his friend, Gregory Gagnon,*fn2 were driving in Sanbornton, New Hampshire, on their way to go snowmobiling. Huckins and Gagnon each drove his own truck, with Huckins following Gagnon. Gagnon's truck was towing the snowmobiles.
While driving on New Hampton Road, Officer Mark McSweeney observed that the taillights on the trailer that Gagnon was towing were not working. He pulled Gagnon over to the side of the road to conduct a routine traffic stop. Huckins, seeing that Gagnon had been stopped by a police officer, also pulled over, stopping about one hundred and fifty feet behind McSweeney's police cruiser.
Gagnon told McSweeney that Huckins was following him on their trip. McSweeney walked back to Huckins's truck and asked Huckins to pull in front of Gagnon's truck. Huckins said that he would. McSweeney noticed that Huckins's eyes were glassy, but did not ask him any questions. After speaking with Huckins, McSweeney returned to his police cruiser.
Huckins pulled his truck out in front of Gagnon's truck as McSweeney had directed him to do. He then got out of his truck and walked back to Gagnon. Gagnon and Huckins decided that Huckins would drive ahead to the General Store and fill up some gas cans for the snowmobile trip. Huckins took the gas cans from Gagnon's truck, returned to his truck, and drove to the General Store.
McSweeney eventually returned to Gagnon's truck and noticed that Huckins was no longer at the scene. He asked Gagnon where Huckins had gone. Gagnon told him that Huckins had driven ahead to the General Store to get gasoline. McSweeney gave Gagnon a warning for the broken taillights, and Gagnon drove off to meet Huckins at the General Store.
Shortly after Gagnon arrived at the store, McSweeney arrived as well. The store was closed and it was relatively dark. The only people there were the Gagnons, Huckins, and McSweeney. Huckins was out of his truck and his truck was still running.
McSweeney approached Huckins and Gagnon, who both walked toward him when he pulled in. McSweeney asked Huckins if he could speak with him. Huckins agreed and they walked to McSweeney's police cruiser.
McSweeney asked Huckins whether he had consumed alcohol that day. Huckins said that he had not and that he did not ever drink alcohol. McSweeney again noticed that Huckins's eyes were glassy and asked Huckins if he could conduct a field sobriety test. Huckins consented. McSweeney's report noted that at this time, "Huckins appeared nervous and worried and was making poor eye contact."
Before performing the field sobriety test, McSweeney went over to Huckins's truck to record his license plate and radio it to dispatch. While at the truck, McSweeney noticed that Huckins was speaking to someone on his cell phone. McSweeney's police report noted that "Huckins was pacing and had his head down appearing anxious."
McSweeney then walked over to Gagnon and told him that he had noticed at the initial traffic stop that Huckins's eyes were glassy. McSweeney asked Gagnon if he knew whether Huckins had consumed alcohol that day. Gagnon told McSweeney that he did not think Huckins had consumed any alcohol that day and that Huckins had not consumed any since the two ...