The plaintiff, John Farrelly, was arrested without a warrant for harassment based a series of emails he sent to his ex-girlfriend. The arresting officers drafted a complaint charging him with a crime under a statute that had been previously declared unconstitutional, and, ultimately, the charges were dropped. Farrelly then brought a civil suit against the City of Concord and the arresting officers. The trial court threw the case out on summary judgment on the grounds that the officers and the City had immunity.
In order to determine whether the trial court erred in disposing of the case on the grounds of immunity, the New Hampshire Supreme Court had to reconcile the standards for immunity articulated in two of its previous cases—Huckins (“immunity applies to intentional torts committed by government officials or employees who act under a reasonable belief in the lawfulness of their conduct”) and Everitt (“municipal police officers are immune from personal liability for decisions, acts or omissions that are . . . not made in a wanton or reckless manner”). The Court determined that the “reasonable belief” an officer is required to have for immunity to apply must both be a subjective belief that the conduct was lawful, and must be objectively reasonable. However, the objective reasonableness is viewed “from the perspective of the actor in question,” asking whether the unlawfulness of the conduct “would have been apparent to an objectively reasonable officer standing in the defendant’s shoes.” Importantly, the Court went on to say that, in order to determine that an officer had not acted “reasonably,” the plaintiff must prove more than negligence—it must be established that the officer acted recklessly or wantonly as to the lawfulness of their conduct.
In this case, the Concord police officers’ arrest of Farrelly was not recklessly or wantonly unlawful. The officers had sufficient information—including an admission from the plaintiff that he had sent the emails—to believe an arrest of Farrelly was lawful under a valid statute, even though, when they drafted the complaint, they sought to charge him under a different, unconstitutional statute.
Therefore, even if it was negligent for the officers to arrest Farrelly without first obtaining a warrant and to charge Farrelly under the wrong statute, this did not amount to reckless or wanton conduct under the “objective” prong of the test.
In addition, there were insufficient facts to establish “subjective” unreasonableness. Farrelly argued that they had acted in bad faith, focusing on the officers’ statement during the arrest that “This is what you get for f*****g with a 30-year veteran of the Concord PD,” a reference to the fact that Farrelly’s ex-girlfriend had a connection to the police force. This bare statement was not enough to show that the officer did not otherwise believe, based on his information at the time, that the arrest was unlawful. Noting that this was a “close case,” the court held that the defendants were properly granted immunity.