In this case before the New Hampshire Supreme Court, Petitioner Officer John Doe is attempting to invoke RSA 105:13-b to ask the New Hampshire court system to resolve a disciplinary matter and obtain removal from the Exculpatory Evidence Schedule (EES). The ACLU-NH and N.H. Association of Criminal Defense Lawyers filed an amicus brief on May 4, 2021. As this amicus brief explains, Officer Doe’s claim fails for two reasons.
First, as the Superior Court correctly held in this matter, RSA 105:13-b does not apply to Officer Doe’s lawsuit or provide him with an independent basis to seek removal from the EES because RSA 105:13-b only implicates how “police personnel files” are handled when “a police officer … is serving as a witness in [a] criminal case.” See RSA 105:13-b, I. At least five Superior Courts have reached this same conclusion, and RSA 105:13-b’s legislative history similarly supports this result.
Second, adequate pre-deprivation procedural due process was provided to Officer Doe based on the allegations in his Petition. Here, one day after the incident, Officer Doe was informed of the allegations of misconduct concerning his prior statement as to who had written the name on the back of the jacket, was told that an internal investigation had been conducted, was interviewed and gave a statement as part of this process, and was given an opportunity to respond. Officer Doe was also later notified of his placement on the EES and given an opportunity to contest it before the County Attorney. After this notification, Officer Doe asked that his meeting with the County Attorney concerning this placement on the EES be continued because he “did not have the time” given his responsibilities as a cadet at the Police Academy.
This case is important because if Officer Doe can be removed from the EES in the face of having received adequate pre-deprivation due process, then this will lead to criminal defendants not receiving disclosures in future cases in which Officer Doe is a testifying witness. This is significant, as defendants have a constitutional right to receive such exculpatory evidence. As this brief explains, where the constitutional rights of defendants who have their property and liberty at stake run up against the rights of police officers in employment disputes, the rights of defendants must prevail.