PAUL BARBADORO, District Judge.
On July 15, 2008, Crystal Moses accompanied her son's girlfriend, Catherine Sims, to the Lebanon police department. When Officer Mark Mele sought to speak to Sims alone, Moses protested and the situation became heated. After Moses escorted Sims out of the police station and back to their car in the parking lot, she was arrested for witness tampering. She was subsequently prosecuted. Moses now brings suit against Officer Mele for unlawful arrest under the Fourth Amendment and malicious prosecution under New Hampshire law. Officer Mele has filed a motion for summary judgment. For the reasons stated below, I grant that motion.
Sims and her boyfriend, Kyle Moses ("Kyle"),
Officer Mele was dispatched to the accident. Based on information that he gathered at the scene, Officer Mele arrested Kyle for his conduct before, during, and after the accident.
On July 15, Officer Mele called Sims. He told her that the statement she had given about the accident differed from Kyle's statement, and he asked if she could come down to the police station to answer some questions. Sims agreed to go, but on the condition that Moses could accompany her and be present during questioning.
Moses drove Sims to the station and sat with her in the lobby. When Officer Mele approached and asked Sims to follow him to an interview room, Moses stood up to go with Sims. Officer Mele stopped Moses, telling her: "[Y]ou're going to have to stay here. I'm going to interview [Sims] alone." Def.'s Dep. at 99, Doc. No. 35. Moses registered her displeasure, and Officer Mele then asked Sims if she would speak with him alone "for one second."
Officer Mele reminded Sims that her statement about the accident contained inconsistencies, and he told her that he would not speak to her with Moses in the room. He warned her that Moses had accompanied her not to protect her interests, but rather to safeguard the interests of her son. Sims responded that she would not speak to Officer Mele alone and would have to call her mother. Officer Mele cautioned Sims against leaving the police station, and threatened to put out a warrant for her arrest if she left. Probable Cause Hr'g at 6, Doc. No. 31-6. Sims said that she "had to go tell [Moses] what the situation had turned into."
When Sims rejoined Moses in the lobby, Moses stated to her, "I don't think you have to talk to him alone and [] you should either call your mother or leave." Pl.'s Dep. at 18-19, Doc. No. 31-4.
As Moses ushered Sims toward her Jeep in the parking lot, Officer Mele followed a few steps behind. Upon reaching Moses's car, Sims immediately entered it and sat down in the front passenger-side seat. The door next to her remained open. Moses stood adjacent to the car, holding the open door as she spoke with Officer Mele. In her deposition, Moses explained that her intent was "to get outside and keep [Officer Mele] from badgering [Sims] until her mother came and could comfort and support her." Pl.'s Dep. at 27, Doc. No. 31-4. Officer Mele continued to "badger" the two women while they were outside, however, repeatedly telling Sims that she should not leave the premises. Moses told Sims that they "should leave because the officer was being a threatening bully and obviously trying to manipulate her." Pl.'s Inter. #15, Doc. No. 31-8.
After approximately a minute outside with Moses and Sims, Officer Mele called for assistance. Several officers responded, rapidly emerging from the nearby police station. Moses had closed the passenger door just prior to the officers' arrival, but reopened it as they reached her car. Officer Mele directed the officers to separate Moses from Sims and to detain Moses. Officer Mele explained to his supervisor, Corporal Gerald Brown, that "he wanted to speak alone with Sims but Moses told Sims she could not and then Moses [] physically escorted Sims out of the station."
After Moses was taken into the station for processing, Officer Mele and others continued to talk to Sims. Sims's mother, who had been called at some point during or just after the preceding events, eventually arrived at the department and sat with Sims during an interview. Mele Dep. at 109, Doc. No. 35; Probable Cause Hr'g at 21-22, Doc. No. 31-6. Before she left the station, Sims also provided and signed a short written statement giving her account of the events that had transpired that day involving Moses and Officer Mele.
On July 20, Officer Mele issued a criminal complaint against Moses. In it, he swore that Moses, "believing that an investigation and report of a crime was about to be instituted," did "knowingly attempt to induce Catherine Sims to withhold information." Criminal Compl., Doc. No. 37, Ex. 2. He elaborated on the basis for the crime, explaining that Moses told Sims "not to talk with the police about the incident and physically escort[ed] her out of the police station and into her car, then slamm[ed] her arm in the door to take her away from the police station, when Sims wanted to give a statement about the incident."
A probable cause hearing was held on September 23 at the Lebanon District Court, and Sims and Officer Mele both testified. Probable Cause Hr'g, Doc. No. 31-6. Moses contended that probable cause was lacking because there was no evidence that she had the specific intent to induce Sims to withhold information from the police.
On November 21, 2008, Moses was indicted for witness tampering. At the grand jury hearing, Lieutenant Scott Rathburn testified for the State. He had no first-hand knowledge of the facts of the case, and testified based on the information contained in police reports. Rathburn Dep. at 13-14, Doc. No. 36.
On March 9, 2009, Moses filed a motion to dismiss the criminal charges, arguing that the witness tampering statute violated her right to free speech and was unconstitutional under the First and Fourteenth Amendments to the United States constitution because it was facially overbroad and vague. Mot. to Dismiss, Doc. No. 34-11. Although the State filed an objection, prior to the hearing on Moses's motion the State decided not to proceed with the prosecution. On the indictment, a signed notation dated June 15, 2009, reads: "Nol prossed due to witness problems." Indictment, Doc. No. 31-10.
A summary judgment motion should be granted when the record reveals "no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The evidence submitted in support of the motion must be considered in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor. See
A party seeking summary judgment must first identify the absence of any genuine issue of material fact.
Moses contends that Officer Mele is liable for false arrest under the Fourth Amendment and for malicious prosecution under state law.
The absence of probable cause is an element of both a false arrest claim under the Fourth Amendment and a malicious prosecution claim under New Hampshire law. The Fourth Amendment, which prohibits "unreasonable searches and seizures," is violated when a police officer arrests an individual without probable cause.
The parties agree that the central issue in this case is whether Officer Mele had probable cause to arrest and prosecute Moses for witness tampering. Officer Mele makes several arguments for why summary judgment is appropriate. He first contends that two state proceedings — the probable cause hearing and the grand jury indictment — each preclude Moses from now arguing that probable cause was lacking. He next argues that even if Moses is not precluded from contesting the existence of probable cause, he is entitled to summary judgment because the undisputed facts establish that he had probable cause. Finally, he asserts that even if there is a genuine issue of material fact on the question of probable cause, he is entitled to qualified immunity on the constitutional claim and official immunity on the state-law claim.
Construing the record in the light most favorable to Moses, I determine that the presence of probable cause was at least arguable, and that a person in Officer Mele's position could reasonably have believed that he had probable cause to arrest Moses. As such, Officer Mele is shielded from the unlawful arrest suit by qualified immunity. For similar reasons, he retains official immunity from liability on the state-law malicious prosecution claim. In light of my determinations, I need not reach Officer Mele's preclusion arguments.
The doctrine of qualified immunity protects public officials from personal liability that arises out of their performance of discretionary functions.
The inquiry into whether a right was "clearly established" encompasses both the clarity of the law at the time of the violation, and whether, in light of the particular facts of the case, "a reasonable defendant would have understood that his conduct violated the plaintiff['s] constitutional rights."
Probable cause exists when a police officer has "information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime."
A court inquiring into the existence of probable cause must conduct its evaluation "from the perspective of a reasonable person in the position of the officer."
Under New Hampshire law, a person commits the crime of witness tampering if, "[b]elieving that an official proceeding .. . or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a person to . . . [w]ithhold any testimony [or] information. . . ." N.H. Rev. Stat. Ann. § 641:5(I)(b). Three elements are apparent: (1) an attempt (2) to induce or cause a person to withhold information or testimony (3) while believing an official proceeding is pending.
Moses presents two related arguments to support her contention that Mele could not have reasonably believed that she acted with a culpable state of mind. First, she argues that her decision to bring Sims to the police station to be interviewed precludes any argument that her later actions were intended to cause Sims to withhold information. Second, she claims that her actions after she reached the police station and her contemporaneous statements about those actions conclusively establish that she acted to prevent Sims from being harassed and interviewed without her mother present, and not to cause Sims to withhold information from the police. I find neither argument persuasive.
I agree that Moses' decision to bring Sims to the interview suggests that she was willing to have the police interview Sims if Moses could be present for the interview. That decision, however, tells us little as to what Moses was thinking later, after she learned that she would not be allowed to be present for the interview. It is undisputed that Moses' son was the target of Office Mele's investigation and, therefore, she had strong reasons to attempt to manage his interview with Sims. Once she learned that she would not be afforded that opportunity, it is entirely possible that she changed her mind and decided to prevent the interview from taking place.
Further, although Moses' contemporaneous statements to Officer Mele tend to support her current position that she escorted Sims from the police station merely to prevent her from being harassed and interviewed without her mother present, Officer Mele was not required to accept her statements as true when the rest of the evidence tells a different story.
In the present case, Moses escorted Sims from the police station even though Officer Mele had informed her Sims was not free to leave.
Malicious prosecution is a state-law cause of action. Accordingly, Officer Mele cannot defend himself by resort to qualified immunity. Nonetheless, the New Hampshire Supreme Court has recently held that defendant police officers can avail themselves of official immunity in suits where plaintiffs allege common-law torts.
"Official immunity protects government officials or employees from personal liability for discretionary actions taken by them within the course of their employment or official duties."
The New Hampshire Supreme Court has provided little guidance in the official immunity context as to what might constitute "wanton or reckless" conduct. In an advisory opinion primarily addressing the withdrawal of sovereign immunity, the court explained that government employees should be immune from prosecution if they acted with a reasonable belief in the lawfulness of their conduct.
The New Hampshire Supreme Court has not yet determined whether its "reasonable belief" standard for official immunity has both objective and subjective components. Even if it does, however, both aspects of the reasonable belief requirement are satisfied here. On the subjective level, there is simply no evidence in the record to support a claim that Officer Mele believed that he lacked probable cause when he elected to proceed with Moses' prosecution. To the contrary, it is undisputed that he sought a supervisor's advice prior to charging Moses, and that shortly after initiating the charge, Officer Mele obtained a probable cause determination from a state court judge. These are hardly the actions of an officer who was acting from a subjective belief that he lacked probable cause to prosecute. Moreover, Moses has not pointed to any circumstantial evidence that would call into question Officer Mele's intent by tending to show that he did not believe in the lawfulness of his conduct. Accordingly, even if proof of a subjective belief is a component of the official immunity test, it has been satisfied here.
With respect to the objective component of the official immunity test, Moses has not attempted to distinguish probable cause to arrest from probable cause to prosecute.
For the reasons stated above, I grant Officer Mele's motion for summary judgment (Doc. No. 31). The clerk shall enter judgment accordingly and close the case. Although I have determined that Officer Mele is not subject to civil liability, I do not intend by this order to condone either his decisions or his conduct.
SO ORDERED.
Sims's Statement, Doc. No. 31-9. In light of conflicting evidence on the disputed issues, however, I must accept Moses's account for the purposes of this summary judgment motion.
