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McCarthy v. Manchester Police Dep't

Supreme Court of New Hampshire

September 22, 2015

Scott McCarthy
v.
Manchester Police Department & a

 Argued June 18, 2015

Hillsborough-northern judicial district.

Backus, Meyer & Branch, LLP, of Manchester ( B J Branch on the brief and orally), for the plaintiff.

McDonough, O'Shaughnessy, Whaland & Meagher PLLC, of Manchester ( Robert J. Meagher on the brief and orally), for the defendants.

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

OPINION

Page 687

Lynn, J.

The plaintiff, Scott McCarthy, appeals an order of the Superior Court ( Nicolosi, J.) granting a motion to dismiss his defamation action against the defendants, the Manchester Police Department (MPD) and MPD Sergeant Craig Rousseau, on the grounds that municipal immunity bars his claim. We affirm.

Page 688

I

The trial court found, or the record supports, the following facts. On April 8, 2011, William Socha was working on a construction site in Manchester. At around noon, Socha noticed a truck parked on the site and went to tell the driver to move the vehicle. As he approached, he saw that the man in the driver's seat had his pants down, exposing his genitalia. Socha also observed a young female in the truck's passenger seat. The passenger appeared to Socha to be about twelve years old and to have some kind of disability, possibly Down syndrome.

Socha called the police, but, by the time an MPD officer arrived, the vehicle had left. Socha gave the officer a description of the truck, its license plate number, and a physical description of the driver. He described the driver as a white male in his forties with a " bigger" build and a balding hairline, and said that he was wearing a white " Sherwin Williams" sweatshirt. The police determined that the truck was registered to the plaintiff, who resided in Allenstown. A short time later, a detective from the Allenstown Police Department observed the plaintiff arrive at his residence in a truck matching the description and license plate number Socha had provided. The detective also observed that the plaintiff was wearing a white " Sherwin Williams" sweatshirt. The plaintiff told the detective that he had been in Manchester around 12:30 p.m. that day to pick up a friend and her daughter. The MPD filed a complaint charging the plaintiff with indecent exposure and lewdness, and arrested him pursuant to a warrant.

By April 11, the MPD had not identified the female passenger whom Socha had described. In an effort to identify her, Sgt. Rousseau posted an entry on the MPD blog, describing the incident and stating, in relevant part, that " [d]etectives of the MPD Juvenile Division now say that McCarthy, 41, was in fact the man who was exposing himself in the vehicle. McCarthy was subsequently arrested [and] charged with one count of indecent exposure." The entry then asked for information concerning the identity of the female passenger.

No passenger was ever identified. On the day of the plaintiff's criminal trial, Socha failed to come to court, and ...


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