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R.N. v. Rogan

United States District Court, D. New Hampshire

March 8, 2017

R.N. b/n/f of P.N. and R.N. individually
v.
Geoffrey Rogan Opinion 2016 DNH 044

          Matthew T. Broadhead, Esq.

          Lawrence A. Vogelman, Esq.

          ORDER

          Joseph DiClerico, Jr. United States District Judge.

         R.N. brings suit on behalf of his son, P.N., and himself, alleging federal and state claims that arose from an incident in Merrimack, New Hampshire, in October of 2014. During the incident, New Hampshire State Trooper, Geoffrey Rogan, while off duty, intervened to stop P.N., who was wearing a costume, from interacting with cars near a day care center. Rogan moves for summary judgment, and R.N. objects.

         Standard of Review Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). Reasonable inferences are taken in the light most favorable to the nonmoving party, but unsupported speculation and evidence that “is less than significantly probative” are not sufficient to avoid summary judgment. Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015) (internal quotation marks omitted).

         Background

         In early October of 2014, P.N. and his father, R.N. drove to Merrimack, New Hampshire, to purchase a Halloween costume for P.N. P.N. chose a rubber pig head mask that covered his head down to his shoulders. On the back, the pig head mask was colored blood red to suggest a severed pig's head. P.N. also chose werewolf gloves that extended up his arms.

         P.N. was twelve years old in October of 2014. He was five feet eight inches tall, without the pig head mask on his head. The mask added several inches to his height.

         After buying the costume, P.N. and R.N. drove to a McDonald's on the corner of Route 101A and Continental Boulevard in Merrimack. P.N. was wearing his pig head mask and werewolf gloves. When they parked, R.N. received a message on his cell phone, so he stayed in the car to deal with the message. R.N. gave P.N. permission to get out of the car, although R.N. and P.N. remember differently whether R.N. said that P.N. could leave the parking lot and cross the street. P.N. went into the McDonald's and waved to people and pointed, wearing his pig head mask and werewolf gloves.

         P.N. left McDonald's through a side door and crossed Continental Boulevard to stand near a day care center. P.N. chose that spot to draw more attention to himself because of the number of cars turning into the day care center. While standing at the day care center, P.N. waived and pointed at cars, made a throating slitting gesture, and ran after at least one of the cars on the street.

         Rogan and his wife drove to the day care center to pick up their daughter in their SUV. Rogan was not on duty, was not wearing his uniform, and did not have a jacket or other distinctive clothing to show that he was a state trooper. Rogan's wife, Vanessa, was driving the SUV. While they waited at the traffic light at the intersection of Route 101A and Continental Boulevard, Rogan saw someone in a costume running at cars near the intersection, heard cars beeping at him, and saw cars swerving around him.

         When Vanessa got the green light, she turned left into the day care center. As she turned, P.N. jumped in front of her car, causing her to slam on the brakes. P.N. began to jump around while pointing and waving at Vanessa. As Vanessa drove around P.N., he came to her window, but Vanessa drove away from him. After they were parked, P.N. pointed at them and began to walk or jog toward the car.

         Rogan told Vanessa to call the police and got out of the car. With the mask, P.N. appeared to be about six feet tall. Because of his odd and harassing behavior, Rogan thought P.N. was a teen ager or a young adult either under the influence of drugs or alcohol or experiencing a mental health episode. Rogan also thought P.N. might be intending to commit a crime while his identity was concealed with the mask.

         When Rogan began to get out of the car, P.N. quickly changed direction and ran away, still wearing his mask and gloves. Rogan remembers that he yelled “Stop, State Police, ” but P.N. did not stop or slow down.[1] P.N. remembers that Rogan yelled “Hey you, kid, get over here.” P.N. remembers being afraid of Rogan and that he intended to run across the street and back to McDonald's where his father had parked. As P.N. neared Continental Boulevard and was about to run across, ...


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