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Conrad v. New Hampshire Department of Safety

Supreme Court of New Hampshire

November 6, 2014

James A. Conrad
v.
New Hampshire Department of Safety & a

Argued November 7, 2013.

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[Copyrighted Material Omitted]

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Merrimack.

Douglas, Leonard & Garvey, P.C., of Concord ( Charles G. Douglas, III and C. Kevin Leonard on the brief, and Mr. Douglas orally), for the plaintiff.

Michael A. Delaney, attorney general ( Laura E. B. Lombardi, assistant attorney general, on the brief and orally), for the defendants.

DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

OPINION

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Bassett, J.

The plaintiff, James A. Conrad, appeals an order of the Superior Court ( Smukler, J.) granting the defendants' motion for a directed verdict on grounds that they were entitled to sovereign, official, and qualified immunity. The plaintiff brought suit against both defendants, New Hampshire Department of Safety (NHDS) and New

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Hampshire State Police Lieutenant Mark Myrdek, for false imprisonment, and against Myrdek for a violation of his civil rights pursuant to 42 U.S.C. § 1983 (2012), [167 N.H. 63] seeking damages for events that occurred on November 28, 2007. The defendants cross-appeal, raising evidentiary issues. We affirm.

I. Facts

The following facts are supported by the record. On November 28, 2007, the plaintiff was a state trooper working as a detective in the Major Crimes Unit. He had been employed as a state trooper since 1993.

In September 2007, the plaintiff was experiencing marital problems. On September 22, after the plaintiff reported his wife missing, he failed to stop for police officers when speeding through the town of Meredith in his personal vehicle. Thereafter, he requested state police assistance, including the canine unit, to search for his wife after her car was located behind a school. The plaintiff's unit commander, Captain Russell Conte, received a telephone call at approximately three o'clock in the morning from the plaintiff's troop commander, informing him of these events.

The report of this incident was provided to the director of the state police, Colonel Frederick Booth, and to Myrdek, commander of the state police professional standards unit. The report included the following facts: that the plaintiff had his wife's car towed from the school parking lot; he returned to the parking lot to wait for her; and that, when she returned to the parking lot accompanied by another man, the plaintiff told him that he was " f-ing lucky to be breathing." On Monday September 24, Booth met with the plaintiff and cautioned him to " be scrupulously careful about not bringing his personal life into his work life."

In October, the plaintiff's wife filed for divorce. That same month, she called the state police, claiming that the plaintiff had locked himself in the bathroom with his service weapon. The plaintiff denied that the incident had occurred; nonetheless, he was placed on administrative leave. He was relieved of his service weapon and police cruiser, and referred to the Employee Assistance Program. The plaintiff returned to full duty in early November 2007, after a counselor determined that he was " currently not a danger to himself or others."

On November 8, following a family court hearing attended by the plaintiff and his estranged wife, the court issued a temporary divorce decree. Pursuant to that decree, " Each party [was] restrained and enjoined from entering the home or the place of employment of the other party, and from harassing, intimidating or threatening the other party or his/her relatives or other household members." The plaintiff testified that he was not aware of the restraining order prior to the incident on November 28, because his mail was still being sent to the marital home in Laconia and he was staying in Concord.

[167 N.H. 64] On November 26, Conte received a telephone call from the Laconia Police Department, informing him that the plaintiff's wife had requested additional patrols by her home after she and the plaintiff had argued over the telephone the previous night. During that phone call, the plaintiff told his wife that he was " going to hell for what [he wanted] to do."

Later on November 26, the plaintiff visited Conte's office and told him he was thinking of resigning and " going ... away." Conte described the plaintiff as being " disheveled," " emotional," and " angry about his wife." Given that the plaintiff was only eight months from full retirement, Conte encouraged him to seek the

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advice of an attorney before making a final decision. When asked by Conte about his " going to hell" statement, the plaintiff explained that it referred to him leaving his children, moving out of state, and withdrawing his retirement funds to split with his wife. Although Conte testified that he took the plaintiff's explanation at " face value," he also had " reservations." Accordingly, as soon as the plaintiff left his office, Conte went to speak with his superior to advise him of the conversation so that his superior could pass it on to Booth.

The next day, Conte received a telephone call from the plaintiff's wife, asking where the plaintiff was. She told Conte, among other things, that she thought the plaintiff had been in her residence the night before, and that he had erased messages on the answering machine and " moved some stuff around." Following this conversation, Conte spoke by telephone with the wife's attorney who confirmed that the temporary divorce decree included a provision prohibiting the plaintiff from entering his wife's residence.

Conte was " very concerned" and immediately discussed the matter with Major Susan Forey, the head of the Field Operations Bureau, and Myrdek. Based upon information communicated to Conte by the plaintiff's wife -- including that the plaintiff may have been in her residence in violation of the temporary divorce decree, that she was concerned about the plaintiff's welfare, and that the plaintiff had allegedly commented to her that he knew where her attorney lived -- Conte, Forey, and Myrdek decided to open an internal affairs investigation and to have Myrdek speak with the plaintiff the following day.

On November 28, the plaintiff was attending an off-site training session when he was contacted by NHDS staff and told to report to Myrdek's office at state police headquarters. The plaintiff arrived at Myrdek's office at approximately 2:05 p.m. Myrdek informed him that he was subject to an administrative interview and provided him with a " Garrity Warning" containing the allegations that were the subject of the investigation. See Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Appeal of Waterman, 154 N.H. 437, 442, 910 A.2d 1175 (2006) (before any interview of a state trooper may take place a [167 N.H. 65] " Garrity Warning" must be given, " inform[ing] the accused that the purpose of questioning is to assist in determining whether to impose administrative discipline" ). These allegations included " [t]he possible violation of a temporary court order regarding [the plaintiff's] pending divorce and comments [he] may have made to [his] wife regarding [his] actions and her attorney." The plaintiff responded that the allegations were " bullshit" and that his wife " can't prove I was in the house, because I wasn't." The plaintiff was agitated. The plaintiff stated that he wanted union representation and Myrdek allowed him to leave to make such arrangements.

The plaintiff contacted a union representative, Trooper Christopher LaPorte, who in turn asked to speak to Myrdek. The plaintiff returned to Myrdek's office at approximately 2:30 p.m. and Myrdek spoke on the telephone with LaPorte. Myrdek explained that there had been an allegation that the plaintiff had violated a restraining order and made threats against his estranged wife, and that immediate action had to be taken. LaPorte indicated that he thought the issues were beyond his ability as a representative and suggested that the plaintiff seek the assistance of the union attorney, James Donchess. Myrdek agreed that it would be a good idea to have Donchess present for the interview if he could get there within a reasonable amount of time. The plaintiff left Myrdek's office again to continue to make arrangements

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for union representation. The plaintiff was still agitated.

Sometime between 2:45 and 3:00 p.m., as the plaintiff was returning to Myrdek's office to report on his efforts to contact Donchess, he met Myrdek in the hall. The plaintiff informed Myrdek that Donchess was not available and that the interview would need to be rescheduled to Thursday or Friday. Myrdek directed the plaintiff back to Myrdek's office and asked him to close the door. The plaintiff and Myrdek argued about whether the interview was going to occur that day, their voices rising. The plaintiff told Myrdek that he was not going to speak to him without Donchess present. Myrdek responded that the interview was going to be conducted that day, so the plaintiff would need to find other union representation. When Myrdek told the plaintiff he was not going to let him leave headquarters until the plaintiff spoke with him about the allegations, the plaintiff became enraged.

The plaintiff then told Myrdek he was quitting and he tried to hand him a resignation letter. Myrdek refused to accept it and told the plaintiff the colonel would not accept it either. The plaintiff responded, " Well, F you and F the colonel. I'm leaving, I quit." The plaintiff then opened up his jacket and said, " [H]ere's my gun and here's my badge, I quit." Myrdek put his arms up and said, " Jimmy, Jimmy, Jimmy, calm down. I don't want your gun and I don't want your badge." The plaintiff told Myrdek that he was [167 N.H. 66] leaving. Myrdek responded by telling him that he couldn't leave, and that he needed to calm down. Myrdek testified that the plaintiff appeared to be out of control and not making rational decisions.

When the plaintiff attempted to leave the office, Myrdek stepped between the plaintiff and the closed door, put his hand on the doorframe, and ordered the plaintiff to stay. The plaintiff reached under Myrdek's arm and opened the door. Because the door opened in, Myrdek stepped out of the way so the plaintiff could open the door, but then stepped back into the doorway. Myrdek continued to urge the plaintiff to calm down and ordered him to sit down. The plaintiff said, " I f***ing quit ... I'm all done. F*** you," and walked past Myrdek into a common area.

Myrdek followed the plaintiff into the common area and again stood in front of him, ordering him to go back in his office and sit down. Lieutenant Liebl, whose office was behind Myrdek's, was watching from his office doorway because he had heard loud arguing in Myrdek's office. The plaintiff asked why Myrdek was taking the wife's side, referred to her as a " c**t," said he was " all f***ing done" and walked past Myrdek. Liebl testified that because of the plaintiff's " demeanor, the words, the profanity, the crudeness," that " clearly [the plaintiff] was very, very agitated, very angry." As the plaintiff continued down the hallway toward an exit door, he punched the door with considerable force. Myrdek then grabbed the plaintiff in " a bear hug," and he and Liebl struggled with the plaintiff.

Forey, hearing " alarming raised voices," left her office to see what was happening and saw the plaintiff, Myrdek, and Liebl in a " scuffle." As the three officers continued to struggle, Forey put her hand on her taser. Because the plaintiff was so angry, Forey thought that the officers were not going to be able to overpower him and that she would have to " tase" him. The plaintiff slowly relaxed and Myrdek slowly released his hold on him and asked him to come back into the office and wait for the union representatives. When the plaintiff and Myrdek went back into Myrdek's office, Forey positioned officers outside the door for " everyone's safety," including the civilian personnel working in the building.

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Inside the office, the officers removed the plaintiff's weapon and handed it out the door. The plaintiff remained there for approximately the next two hours. During that time, the plaintiff was very emotional, crying, and saying his career was over. He expressed hostility toward his wife, and he said that life was not worth living. The plaintiff said he was going to take Myrdek's gun, thereby forcing another officer to shoot him. At one point he threatened to jump out a window, and talked about committing suicide. He stated he wished he had been killed in Iraq. He called his wife on the telephone and yelled vulgarities.

[167 N.H. 67] When Booth returned to police headquarters at approximately 4:30 p.m., Forey met with him and an attorney from the department of safety and told them what had happened. Booth then met with Department of Safety Commissioner John Barthelmes, and, " [i]n order to give [the plaintiff] a fair judgment," the decision was made to have the Concord Police Department take custody of the plaintiff and handle any criminal charges that might result from the incident.

The Concord police arrived at headquarters at approximately 5:30 p.m. Forey met with them when they entered the building to apprise them of the gravity of the situation and warn them, for their own safety, not to let their guard down at the hospital. When the plaintiff was told he was under arrest, he " exploded," was " screaming and crying," and threatened one of the Concord police officers, saying that he was going to take the officer's gun and shoot the officer and then turn the gun on himself. Concord police took the plaintiff into custody ...


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