On December 12, 2014, the American Civil Liberties Union of New Hampshire filed an amicus brief before the New Hampshire Supreme Court in the case Farrelly v. City of Concord et. al. In this case, the plaintiff has asserted intentional tort claims against the City of Concord after Concord police officers arrested and prosecuted him pursuant to a statute, RSA 644:4, I(f), that had been struck down by the New Hampshire Supreme Court four years earlier in State v. Pierce, 152 N.H. 790 (2005) as violating the free speech protections of Part I, Article 22 of the New Hampshire Constitution. The lower court held that the City was entitled to official immunity against the plaintiff’s intentional tort claims because the police officers were unaware that the statute was unconstitutional at the time of the arrest despite being provided this information by their employer.
This case raises an important question as to whether, for a police officer and their employer to obtain official immunity for intentional torts, the officer in question must have acted under a “reasonable belief” that their conduct is authorized by law as required under Part I, Article 14 of the New Hampshire Constitution. Under this “reasonable belief” standard, (i) the officer must have subjectively believed that their conduct was unlawful, and (ii) that belief must be objectively reasonable when measured against that of a reasonably well-trained officer. The lower court examined the former and not the latter and, therefore, we argue that its decision did not comply with Article 14 of the New Hampshire Constitution.
As we argue in the brief, the policy considerations of the lower court’s decision to not apply an objectively reasonable standard are significant. Indeed, the lower court’s ruling, if affirmed, would considerably restrict—if not outright eliminate—the ability of plaintiffs to seek redress for intentional torts in state courts against police officers and municipalities, including intentional torts arising out of clear violations of rights protected under the federal and state constitutions. Under the lower court’s ruling, a municipality can obtain immunity for an intentional tort simply if the officer in question subjectively believed in the lawfulness of his or her actions, including relying on a statute that clearly has been held unconstitutional but has not been formally repealed. Such a rule would immunize, based solely on the officer’s subjective beliefs, even objectively improper conduct that no reasonably well-trained officer would ever think is appropriate. An objective standard, on the other hand, recognizes the axiomatic principle that it has always been the province of the courts, not law enforcement, to determine the reasonableness of an officer’s conduct in ascertaining whether immunity principles apply to violations of fundamental rights.
On December 23, 2015, the New Hampshire Supreme Court affirmed the lower court's decision.