James A. Conrad v. New Hampshire Department of Safety

Immunity Applies Where Alleged Conduct is "Objectively Reasonable" Under the Circumstances
NH Supreme Court, No. 2012-440
Thursday, November 6, 2014

The New Hampshire Supreme Court held that NHDS and state police officers were immune from liability for civil damages arising out of the detention of a police officer for the purposes of conducting an internal investigation interview after a Garrity Warning was given.

After a string of concerning incidents surrounding Officer Conrad’s marital problems that culminated with Conrad being placed on administrative leave, Conrad’s wife contacted Captain Conte, Conrad’s unit commander, and informed him that she believed Conrad had been in her residence the night before in violation of a restraining order. Conte shared his concerns about these allegations with Forey, head of the Field Operations Bureau, and Myrdek, commander of the state police professional standards unit. As a result, an internal investigation was opened. The next day, Myrdek notified Conrad of the investigation, provided him a Garrity Warning, and informed him that Myrdek would interview Conrad that afternoon pursuant to the investigation. After Conrad was given time to secure the presence of a representative during the interview, Conrad informed Myrdek that the interview must be rescheduled because the union attorney was not available. Myrdek refused to reschedule.

Conrad then attempted to resign and tried to hand in his badge and gun and leave. When Myrdek tried to get Conrad to stay in the office, Conrad became enraged, and eventually a physical scuffle ensued that ended with officers removing Conrad’s weapon and returning him to Myrdek’s office, where he was held for approximately two hours. During this time, Conrad was very emotional and made comments regarding suicide. Ultimately, the Concord Police arrested Conrad and took him to Concord Hospital.

Conrad brought a tort claim against NHDS and Myrdek for false imprisonment and against Myrdek for alleged constitutional violations. After a trial, the jury returned a verdict for Conrad, but the trial court granted the defendants’ motion for a directed verdict, determining that both NHDS and Myrdek were shielded from liability on immunity grounds. On appeal, Conrad challenged the trial court’s finding of qualified immunity for Myrdek on the §1983 claim and sovereign immunity for NHDS on the false imprisonment claim.

There are three basic types of immunity: official, qualified, and sovereign. Official immunity shields public officials from liability for wrongful acts committed within the scope of their governmental employment. Similarly, qualified immunity shields public officials from liability for wrongful acts, but it specifically protects public officials acting under the color of state law from liability for infringing on the constitutional rights of private persons. Finally, sovereign immunity protects a state from suit in its own courts without consent and shields a state from liability for torts committed by its officers and employees.

First, the Court held that Myrdek was entitled to qualified immunity. To determine whether qualified immunity applies, a court must engage in a two-part test and ask 1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and 2) if so, whether the right was “clearly established” at the time of the defendant’s alleged violation. Under the second step of the test, the Court held that Myrdek’s conduct was objectively reasonable, which is the linchpin of the qualified immunity analysis. State police policy did not entitle Conrad to have a representative of his choosing present during the investigatory interview. Moreover, policy requires that investigations not be “compromised or unreasonably delayed” due to an officer’s failure to obtain “an association or union representative in a timely manner.” Based on state police policy, on Myrdek’s knowledge of Conrad’s wife’s accusations, and on Conrad’s behavior that day, an objectively reasonable officer could have believed that refusing to postpone the interview or to accept Conrad’s resignation were lawful. Because Myrdek made “a reasonable judgment call,” he was immune from civil liability for his actions.

Second, the Court held that NHDS was entitled to sovereign immunity. Under RSA 541-B, the legislature has waived sovereign immunity subject to exceptions. One of the exceptions, under RSA 541-B:19, I(d), shields the State from liability for claims arising out of an intentional tort, including false imprisonment, “provided that the employee whose conduct gives rise to the claim reasonably believes, at the time of the acts or omissions complained of, that his conduct was lawful, and provided further that the acts complained of were within the scope of official duties of the employee for the state.”

Conrad argued that because NHDS did not initiate an Involuntary Emergency Admission process before detaining him, the NHDS officer’s conduct was unreasonable. The Court disagreed and held that based on Conrad’s behavior and statements, a reasonable officer would have believed that holding the plaintiff in protective custody at police headquarters until the determination was made to have a neutral police department take custody was lawful because Conrad posed an immediate danger of bodily injury to himself and others.