UNITED STATES DISTRICT COURT FOR DISTRICT OF NEW HAMPSHIRE

(JUDGE JOSEPH DICLERICO) SEPTEMBER 15, 2009

Carl Statchen v.

Police Officers Palmer & Scott

&City of Concord

2

FACTS OF CASE: BY AFFIDAVITS & DEPOSITIONS

JUNE 22, 20079:30 AM – CONCORD HOSPITAL

SCOTT - CALL FOR INTOX / VERBALLY ABUSIVE MAN;

BLACK EYE / FIGHT NIGHT BEFORE / OTHER GUY WORSE;

BREATH TEST – OVER LIMIT; AND

TOOK KEYS & BEER / LEAVE / NO DRIVE OR DRINK.

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Facts of case (Cont’d.)12:30 PM – SCOTT & PALMER – CITIZEN CALL DRINKING

BEHIND MARKET – BAG OF BEER – EMPTIES –INTOX;

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Facts of case (Cont’d.) PROTECTIVE CUSTODY – DUTY TO ACT – CUFFS;

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Facts of case (Cont’d.) NO” – “CROUCHED LIKE LINEBACKER;”

VERBAL COMMAND TO CUFF – RESISTED CUFFS;

GRABBED ARMS TO CUFF – RESISTED ;

YELLED “STOP RESISTING;”

TOOK TO GROUND – SCOTT RIGHT KNEE TO BACK;

STATCHEN GRABBED PALMER’S LEG;

UNABLE TO CUFF – SCOTT KICKED SIDE WITH KNEE;

YELLED – “STOP” – CLOSED FIST TO BACK OF ARM TO LET GO;

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Facts of case (Cont’d.) STATCHEN TRIED TO BITE LEG – HIT TO HEAD TO

STOP BITE;

SCOTT PUNCHED IN BACK TO FREE LEG – DID NOT WORK;

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Facts of case (Cont’d.) PALMER - BATON TO ARM 3X – SCOTT USED

KNEE TO BACK; AND

STATCHEN LET GO OF LEG – CUFFED BEHIND BACK.

POLICE CAR

“UNPLEASANTRIES” TO OFFICERS:

CALLED NAMES; AND

CHALLENGED TO “ONE – ON – ONE FIGHT.”

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Facts of case (Cont’d.)

BOOKED & CHARGED

1 COUNT “RESISTING DETENTION” & 1 COUNT “SIMPLE ASSAULT.”

TRANSPORT TO COUNTY JAIL

STATCHEN REFUSED TO BE CUFFED AGAIN / HELD ONTO BENCH:

FOUR OFFICERS ENTERED CELL – VERBAL COMMANDS;

USE OF MANUAL FORCE ON ARMS TO CUFFS; AND

CHARGED 1 COUNT RESISTING DETENTION.

JANUARY 2008

NOLO PLEA TO 2 COUNTS RESISTING – SIMPLE ASSAULT ON FILE 6 MONTHS.

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Lawsuit filed – 2008 CLAIMS

COUNT I - FEDERAL CLAIM – SECTION 1983 – EXCESSIVE FORCE – 4TH & 14TH AMENDMENTS OF US CONSTITUTION – OFFICERS;

COUNT II - STATE CLAIM – ASSAULT – OFFICERS; AND

COUNT III - STATE CLAIM – VICARIOUS LIABILITY – CITY OF CONCORD.

REMOVAL

FROM STATE COURT TO FEDERAL COURT – STATE AND FEDERAL CLAIMS.

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LAWSUIT (CONT’D.)

FEDERAL JUDGES*

6 PERSON JURY PANEL

MOTION TO DISMISS*

MOTION FOR SUMMARY JUDGMENT*

DISCOVERY

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4th Amendment Claim - Officers Scott & Palmer Entitled to summary judgment on Count I OBJECTIVE REASONABLENESS.

ONLY SUCH FORCE AS IS REASONABLY NECESSARY TO EFFECT AN ARREST OR DEFEND HIMSELF OR OTHERS.

OBJECTIVELY UNREASONABLE IN LIGHT OF THE FACTS AND CIRCUMSTANCES KNOWN TO THE ARRESTING OFFICERS ON THE SCENE AT THE TIME OF THE ARREST.

SPLIT-SECOND JUDGMENTS – IN CIRCUMSTANCES THAT ARE TENSE, UNCERTAIN, AND RAPIDLY EVOLVING.

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LEGAL STANDARD – USE OF FORCE ON THE STREET

WHETHER OFFICER’S USE OF FORCE WAS REASONABLE.

FACTS AND CIRCUMSTANCES OF EACH CASE.

RELEVANT FACTORS:

SEVERITY OF THE CRIME AT ISSUE;

WHETHER THE ARRESTEE POSES AN IMMEDIATE THREAT TO THE SAFETY OF THE OFFICERS OR OTHERS; AND

WHETHER HE IS ACTIVELY RESISTING ARREST OR ATTEMPTING TO EVADE ARREST BY FLIGHT.

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Legal Standard (Cont’d.) THE ACTIONS THAT OFFICERS

SCOTT AND PALMER TOOK TO SUBDUE THE PLAINTIFF WERE REASONABLE UNDER THE CIRCUMSTANCES AND NOT IN VIOLATION OF THE PLAINTIFF’S RIGHTS UNDER THE FOURTH AMENDMENT.

IT WAS REASONABLE FOR OFFICER SCOTT TO BELIEVE THAT THE PLAINTIFF WAS LIKELY TO FIGHT BACK.

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Legal Standard (Cont’d.) THE PLAINTIFF ACTED CONSISTENT WITH

OFFICER SCOTT’S BELIEF WHEN HE DISREGARDED OFFICER SCOTT’S COMMAND TO PLACE HIS HANDS BEHIND HIS BACK SO THAT HE COULD BE TAKEN INTO PROTECTIVE CUSTODY.

AFTER THE PLAINTIFF TOOK AN AGGRESSIVE STANCE TO “GET READY” FOR A FIGHT, OFFICERS SCOTT AND PALMER REASONABLY BELIEVED IT WAS NECESSARY TO USE PHYSICAL FORCE TO TAKE THE PLAINTIFF INTO CUSTODY.

IN THE STRUGGLE THAT FOLLOWED, THE SITUATION WAS “TENSE, UNCERTAIN AND RAPIDLY EVOLVING.”

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Legal Standard (Cont’d.) THE OFFICERS WERE STRUGGLING TO SUBDUE A

LARGE INTOXICATED MAN.

THEIR USE OF FORCE INCREASED IN CONJUNCTION WITH THE PLAINTIFF’S FAILURE TO COOPERATE AND HIS DEFENSIVE RESISTANCE.

THE OFFICERS PROMPTLY RELENTED AS SOON AS THE PLAINTIFF INDICATED HIS INTENTION TO STOP RESISTING.

ALL OF THESE FACTS TAKEN TOGETHER MAKE THE ACTIONS OF THE OFFICER DEFENDANTS REASONABLE.

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USE OF FORCE AT POLICE STATION THE ACTIONS THAT OFFICER

SCOTT TOOK TO CUFF THE PLAINTIFF AT THE POLICE STATION WERE REASONABLE UNDER THE CIRCUMSTANCES.

NOT IN VIOLATION OF THE PLAINTIFF’S RIGHTS UNDER THE FOURTH AMENDMENT.

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RSA 627:5 - Use of Force

LAW ENFORCEMENT OFFICER IS JUSTIFIED IN USING NON-DEADLY FORCE.

REASONABLY BELIEVES IT NECESSARY TO EFFECT AN ARREST OR DETENTION.

DEFEND HIMSELF OR A THIRD PERSON.

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RSA 627:5 (Cont’d.) REASONABLY BELIEVES TO BE THE

IMMINENT USE OF NON-DEADLY FORCE ENCOUNTERED WHILE ATTEMPTING TO EFFECT SUCH AN ARREST OR DETENTION.

CONDUCT WHICH IS JUSTIFIABLE UNDER RSA CHAPTER 627 CONSTITUTES A DEFENSE TO ANY OFFENSE. THE FACT THAT SUCH CONDUCT IS JUSTIFIABLE SHALL CONSTITUTE A COMPLETE DEFENSE TO ANY CIVIL ACTION BASED UPON SUCH CONDUCT. RSA 627:1.

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RSA 627:1 – Complete Defense CONDUCT WHICH IS

JUSTIFIABLE CONSTITUTES A DEFENSE TO ANY OFFENSE.

THE FACT THAT SUCH CONDUCT IS JUSTIFIABLE SHALL CONSTITUTE A COMPLETE DEFENSE TO ANY CIVIL ACTION BASED UPON SUCH CONDUCT.

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Qualified and Official Immunity For Police Officers ENCOURAGING INDEPENDENT

POLICE JUDGMENT FOR THE PROTECTION AND WELFARE OF THE CITIZENRY AT LARGE MUST PREVAIL OVER ENSURING COMMON LAW CIVIL RECOURSE FOR INDIVIDUALS WHO MAY BE INJURED BY REASONABLE POLICE DECISIONS.

21

Qualified and Official Immunity (Cont’d.) REMOVING THE FEAR OF PERSONAL

LIABILITY FOR PUBLIC OFFICIALS WHO ARE REQUIRED TO EXERCISE DISCRETION IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

FREE TO EXERCISE INDEPENDENT JUDGMENT AND EFFECTIVELY PERFORM THE RESPONSIBILITIES OF THEIR GOVERNMENT EMPLOYMENT.

22

LEGAL STANDARD - Qualified immunity SHIELDS OFFICERS WHO MAKE

“REASONABLE MISTAKES AS TO THE LEGALITY OF THEIR ACTIONS.”

SHIELDS “ALL BUT THE PLAINLY INCOMPETENT OR THOSE WHO KNOWINGLY VIOLATE THE LAW.” MALLEY V. BRIGGS, 475 U.S. 335, 341 (1986).

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LEGAL STANDARD (Cont’d.)

OFFICERS SCOTT AND PALMER ARE ENTITLED TO QUALIFIED IMMUNITY - REASONABLE POLICE OFFICERS IN THEIR POSITION COULD HAVE BELIEVED THAT THE AMOUNT OF PHYSICAL FORCE THEY USED IN SUBDUING THE PLAINTIFF WAS LAWFUL.

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Doctrine of official immunity

NEW HAMPSHIRE LAW

MUNICIPAL POLICE OFFICERS ARE IMMUNE FROM PERSONAL LIABILITY FOR DECISIONS, ACTS OR OMISSIONS THAT ARE:

(1) MADE WITHIN THE SCOPE OF THEIR OFFICIAL DUTIES WHILE IN THE COURSE OF THEIR EMPLOYMENT;

(2) DISCRETIONARY, RATHER THAN MINISTERIAL; AND

(3) NOT MADE IN A WANTON OR RECKLESS MANNER. EVERITT V. GENERAL ELECTRIC CO., 156 N.H. 202, 219, (2007).

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Doctrine of official immunity (Cont’d.)NEW HAMPSHIRE SUPREME COURT

A DISCRETIONARY DECISION, ACT OR OMISSION :

EXERCISE OF PERSONAL DELIBERATION AND INDIVIDUAL PROFESSIONAL JUDGMENT; AND

NO HARD AND FAST RULES AS TO THE COURSE OF CONDUCT THAT ONE MUST OR MUST NOT TAKE AND THOSE ACTS REQUIRING THE EXERCISE OF JUDGMENT AND CHOICE.

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Doctrine of official immunity (Cont’d.)

SPLIT-SECOND JUDGMENTS – IN CIRCUMSTANCES THAT ARE TENSE, UNCERTAIN, AND RAPIDLY EVOLVING.

REASONABLENESS OF THE OFFICER’S BELIEF AS TO THE APPROPRIATE LEVEL OF FORCE IS JUDGED FROM ON-SCENE PERSPECTIVE.

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Doctrine of official immunity (Cont’d.)

CONDUCT IS WANTON OR RECKLESS:

DISREGARD TO OR INDIFFERENCE TO CONSEQUENCES UNDER CIRCUMSTANCES INVOLVING DANGER TO LIFE OR SAFETY OF OTHERS.

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Municipal Liability - Immunity DOCTRINE OF RESPONDEAT SUPERIOR.

OFFICIAL IMMUNITY, WHEN AVAILABLE TO INDIVIDUAL PUBLIC OFFICIALS, GENERALLY MAY BE VICARIOUSLY EXTENDED TO THE GOVERNMENT ENTITY EMPLOYING THE INDIVIDUAL.

NO CUSTOM PRACTICE OR POLICY TO VIOLATE CLEARLY ESTABLISHED CONSTITUTIONAL RIGHTS.

Judge Tosses Suit Against OfficersA federal judge has thrown out an excessive force lawsuit brought by a Connecticut man against the city and two police officers - but the win will cost the city about $30,000 in legal fees. And court rules don't allow the city to recoup its attorney costs.

"Police officers are doing the jobs that 98 percent of the citizenry don't want to do because it's too damn dangerous and too damn risky," said Concord attorney Charles Bauer, who defended the city and the officers. "Every time they get in their cruiser, they put their lives on the line. They are trying to do the best job they can do, and it's almost like they are targets these days for lawsuits."

Bauer and police Chief Robert Barry welcomed the court's ruling but said yesterday a victory has not only financial but human costs, too. Accusations and lawsuits - or even fear of a lawsuit - aren't taken lightly, they said.

"An allegation against one officer is an allegation against all of us," Barry said. "We couldn't have been further removed from the Rodney King case, but the public is quick to accuse all of us. That happens in a case like this. We all get painted with the same brush."

Concord Monitor, September 30, 2009By Annimarie Timmins

Monitor Staff29

Contact Information:

Charles P. Bauer, Esquirebauer@gcglaw.com

Jeanne P. Herrick, Esquireherrick@gcglaw.com

Gallagher, Callahan & Gartrell, P.C.

 A multidisciplinary law firm214 N. Main Street, P.O. Box 1415Concord, New Hampshire 03302-1415603.228.1181www.gcglaw.com