Brown v. Greenfield, et a l . CV-00-359-M 03/26/02 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Julie Brown, m/n/f of Christopher B., Plaintiff
v. Civil No. 00-359-M Opinion No. 2002 DNH 066 Town of Greenfield, New Hampshire Gary Gagnon, and Mitchell Foster, Defendants
O R D E R
Julie Brown, mother of Christopher B., brings this action
seeking compensation for injuries she claims her son suffered
when he was arrested and prosecuted for various relatively minor
criminal offenses. At all times relevant to this proceeding,
plaintiff's son, Christopher, was a minor.
The court previously dismissed count 1 of plaintiff's
complaint, in which she sought damages from two local newspapers
for allegedly violating her son's privacy rights under a state
statute, concluding that the statute did not confer a private
right of action. Brown v. Greenfield. 2001 DNH 039 (D.N.H. March
14, 2001). Subsequently, plaintiff voluntarily moved to withdraw, with prejudice, her claims under 42 U.S.C. § 1983
(count 3). Consequently, what remain are plaintiff's four state
law claims against the Town of Greenfield and two of its police
officers: violation of N.H. Rev. Stat. Ann. ("RSA") 169-B:36,
which prohibits the unauthorized disclosure of court records
relating to juveniles (count 2); false imprisonment (count 4);
malicious prosecution (count 5); and abuse of process (count 6).
Background
On September 14, 1999, when he was sixteen years old,
Christopher B. was involved in a public confrontation with a
young woman, during which he shouted at her and called her
derisive, vulgar names. A friend of the young woman came to her
defense, engaging Christopher B. in a fight. When one of the
defendants. Officer Mitchell Foster, arrived at the scene,
Christopher B. fled in a white Mercury Cougar. The responding
officer found the other young man covered with blood. Upon
learning of the incident, the young woman's mother, Patricia
Donovan, contacted the Greenfield Police Department and filed "a
complaint in behalf of my minor child, Nicole Donovan, that on
the date of September 14, 1999, Christopher Brown of Hancock, NH,
2 was present at Belmore Farms when he . . . proceeded to call my
daughter malicious profanity," all of which Donovan asserted was
in violation of RSA 644:2, New Hampshire's criminal statute
prohibiting disorderly conduct. Exhibit H to Defendants'
memorandum (document no. 53).
Officer Foster investigated the matter and, among other
things, obtained statements from several witnesses, including one
from Donovan's daughter. He then met with plaintiff, her son,
and her husband. During that meeting, Christopher admitted that
he used loud, profane language toward Nicole Donovan, engaged in
a fight with another young man, and left the scene, driving an
automobile within 90 days of obtaining his operator's license
without an adult present (conduct prohibited by New Hampshire
law). As a result of Foster's investigation, the witness
statements, and Christopher's own confession, the police
reasonably concluded that there was probable cause to believe
that Christopher violated a state motor vehicle statute, as well
as a local ordinance prohibiting disorderly conduct.1 See
1 Section 3, Chapter 3 of the Town of Greenfield's Town Ordinances provides that it shall be unlawful for any person to engage in disorderly conduct. The ordinance defines disorderly conduct to include, among other things:
3 generally State v. Vandeboaart, 139 N.H. 145, 163 (1994)
("Probable cause to arrest exists when the arresting officer has
sufficient, trustworthy information to warrant a reasonable
person to believe that the arrestee has committed a crime.").
See also Beck v. State of Ohio, 379 U.S. 89, 91 (1964) (holding
that probable cause to arrest exists when "the facts and
circumstances within [the arresting officer's] knowledge and of
which [he] had reasonably trustworthy information were sufficient
to warrant a prudent man in believing that the [arrestee] had
committed or was committing an offense.").
As an alternative to prosecution, Foster offered to place
Christopher in a juvenile diversion program. Both Christopher
and his parents declined. Accordingly, Foster completed three
criminal complaints against Christopher, charging that he: (1)
[E]ngaging in fighting or in violent, tumultuous or threatening behavior in a public place; or
[D]irecting at another person, in a public place, obscene, derisive or offensive words which are likely to provoke a violent reaction on the part of an ordinary person.
Exhibit S to defendant's memorandum. The ordinance then provides that any person "found in violation of this ordinance may be fined not more than $100.00 (one hundred dollars) and/or not more than 20 hours of community services." Id.
4 violated a town ordinance prohibiting the use of offensive words;
(2) violated a town ordinance prohibiting fighting; and (3)
violated RSA 263:14, which prohibits a minor from operating a
motor vehicle unaccompanied by an adult during the first 90 days
following the issuance of his or her drivers' license. See,
e.g.. Exhibit M to defendants' memorandum, criminal complaints
against Christopher B.; Exhibit N, arrest warrant for Christopher
B.
Later, however, defendants learned that Patricia Donovan had
apparently undergone a change of heart and, rather than urging
the police to prosecute Christopher, she withdrew the complaint
she had filed against him. Additionally, her daughter, Nicole
Donovan, refused to testify against Christopher.2
2 Patricia Donovan is apparently well known to the Greenfield Police Department, having been arrested on at least three occasions and having sued the Town (unsuccessfully) several times, including a civil rights action against Chief Gagnon and the Town that was filed in this court. According to Gagnon, prior to September of 1999, he had received more than 160 pages of letters and e-mails from Donovan, as well as copies of additional letters she sent to town selectmen, in which Donovan complained of various actions undertaken by police officers. Plainly, there is some animosity between Donovan and town officials, but exactly why she suddenly chose to withdraw the complaint she filed against Christopher B., or why her daughter refused to cooperate with the police in their efforts to prosecute him for disorderly conduct is entirely unclear.
5 Shortly thereafter. Chief Gagnon dropped the two charges
that alleged Christopher violated the town ordinance. He did,
however, continue to prosecute the motor vehicle charge.
Nevertheless, because the prosecution apparently had difficulty
presenting admissible evidence concerning Christopher's age, the
state trial court concluded that the prosecution failed to
establish one of the essential elements of the charge.
Christopher was, therefore, acquitted. This suit ensued.
Discussion
I. Count 1 - Violation of RSA 169-B:36.
In count two of her complaint, plaintiff says she is
entitled to damages caused by defendants' having unlawfully
released Christopher's name (and the charges lodged against him)
to the local media, allegedly in violation of RSA 169-B:36. By
prior order, the court dismissed plaintiff's related claims
against two local newspaper publishers for alleged violations of
RSA 169-B:37. Specifically, the court concluded that the statute
at issue did not create a private right of action against those
who allegedly violate its provisions. For essentially the same
reasons articulated in that order, the court concludes that RSA
6 169-B:36 does not create a private cause of action for civil
damages. See Brown v. Greenfield, 2001 DNH 03 9 (D.N.H. March 14,
2 001). See also Marquav v. Eno, 139 N.H. 708 (1995).
Moreover, even if the statute did admit of an implied
private right of action against those accused of having violated
its provisions (which it does not), plaintiff has failed to
demonstrate that the circumstances underlying her claims would
place them outside the scope of the statutory exception set forth
in RSA 169-B:32. That exception provides, in relevant part:
This chapter shall not be construed as applying to persons 16 years of age or over who are charged with the violation of a motor vehicle law, . . . . or any town or municipal ordinance which provides for a penalty not exceeding $100 plus the penalty assessment.
RSA 169-B:32. Here, Christopher B. was over 16 years of age at
the time of the incidents giving rise to charges being filed
against him and he was charged with violating a state motor
vehicle statute and a local ordinance that provides for monetary
penalties not exceeding $100. Thus, the statutory exception
7 would certainly seem to apply and, perhaps more importantly,
plaintiff has failed to show that it does not.3
II. Count 4 - False Imprisonment.
While plaintiff appears to concede that there was probable
cause to arrest (and prosecute) Christopher for having violated
the motor vehicle statute, she says Christopher's detention was,
nonetheless, unlawful because defendants lacked probable cause to
arrest him for having violated the town ordinance. A critical
element of that argument is plaintiff's assertion that the town
ordinance is invalid (a point discussed more fully below).
Consequently, says plaintiff, there can never be probable cause
to arrest someone for allegedly violating it. See generally
Plaintiff's memorandum (document no. 55) at 10-11. Even if the
court were to credit that argument, the fact remains that
defendants plainly had probable cause to detain Christopher for
his admitted violation of the state motor vehicle statute. In
3 Plaintiff asserts (without any developed argument or citation to authority) that because the penalty provisions of the town ordinance provide for imposition of up to 20 hours of community service, the ordinance does not fall within the scope of the statutory exception set forth in RSA 169-B:32 (i.e., it provides a penalty that exceeds $100). For the reasons discussed more fully below, the court rejects that argument. fact, defendants applied for and obtained a warrant for
Christopher's arrest, based upon, among other things, his alleged
violation of that statute.4
The New Hampshire Supreme Court has defined false
imprisonment as "the unlawful restraint of an individual's
personal freedom." Welch v. Bergeron, 115 N.H. 179, 181 (1975) .
An essential element of a false imprisonment claim is, therefore,
"the absence of valid legal authority for the restraint imposed."
Id. Because a valid warrant issued for Christopher's arrest,
there can be no viable claim against defendants for false
imprisonment. See, e.g., Lattime v. Town of Seabrook, No. 98-
4 With virtually no legal or factual development, plaintiff asserts that the arrest warrant was invalid. Specifically, plaintiff says that because "Debra Nutting is a friend of Officer Foster," she was not a neutral and detached magistrate. See Plaintiff's memorandum at 16. That argument requires little discussion. See generally Lusbv v. Union Pacific R . C o ., 4 F.3d 639, 642 (8th Cir. 1993) ("[W]e take this opportunity to remind counsel that 'it is not this court's job to research the law to support an appellant's argument.' When a point is argued but unsupported by citations and authorities, the court might well decide not to trouble itself with independent research, and reject the point on its merits, depending on the nature of the issue.") (citations omitted). It is enough to note that, without more, an unsupported claim that the officer seeking an arrest warrant and the Magistrate issuing the warrant are "friends" is wholly insufficient to support the conclusion that the arrest warrant was invalid.
9 181-M, slip op. at 19 (D.N.H. July 12, 1999) ("Where plaintiff's
arrest was based on probable cause, and more particularly, on a
warrant supported by probable cause, she cannot prevail on her
state law false arrest claim.") (citing Welch v. Bergeron,
supra) .
III. Count 5 - Malicious Prosecution.
Defendants assert that, with regard to plaintiff's malicious
prosecution claim, they are entitled to prosecutorial immunity.
Plaintiff disputes that claim, saying, in essence, that because
the town ordinance under which Christopher was charged is
invalid, and because defendants knew the ordinance was invalid,
they lacked probable cause (and a good faith basis) to charge
Christopher with violating it. That, says plaintiff, is
sufficient to divest defendants of the cloak of prosecutorial
immunity. For the sake of simplicity, the court will assume
(without deciding) that, under the circumstances alleged,
defendants are not entitled to prosecutorial immunity.
Accordingly, the court will turn to a discussion of the essential
elements of plaintiff's malicious prosecution claim.
10 To prevail on a claim of malicious prosecution under New
Hampshire common law, a plaintiff must establish that he or she
"was subjected to a criminal prosecution instituted by the
defendant without probable cause and with malice, and that the
criminal proceeding terminated in his favor." Robinson v. Fimbel
Door C o ., 113 N.H. 348, 350 (1973). Here, there is no dispute
that the charges against Christopher based on the local ordinance
were resolved in his favor, when, in the wake of Donovan's
withdrawal of her complaint and her daughter's refusal to
cooperate with the prosecution. Chief Gagnon decided not to
pursue those charges. Consequently, the court must focus on the
first two elements of plaintiff's malicious prosecution claim:
defendants' alleged lack of probable cause to institute those
proceedings and Gagnon's alleged malice toward Christopher.
With regard to the latter element of her claim, plaintiff
says Gagnon's alleged malice is revealed by the fact that he
pursued the charges against Christopher only after Christopher
and his parents rejected the offer to place him in a juvenile
diversion program. And, as to Gagnon's alleged lack of probable
cause to pursue those charges, plaintiff says that "the Town
11 ordinances are void because the Town has no authority under New
Hampshire law, RSA 31:39 to enact a disorderly [conduct]
statute." Plaintiff's memorandum at 11. Consequently, she
asserts that "there can be no probable cause for it's violation."
Id.
Simply stated, plaintiff's evidence and legal argument are
insufficient to forestall summary judgment. Aside from her bald
assertion that Gagnon acted with malice, she offers no evidence
supportive of that claim other than the simple fact that, when
plaintiff rejected the offer to place Christopher in a juvenile
diversion program, Gagnon continued to prosecute the alleged
violations of the local ordinance. Plainly, something more is
necessary to create a genuine issue of material fact as to
Gagnon's subjective motivation in prosecuting Christopher. The
mere fact that a prosecution proceeds forward after a defendant
rejects a plea offer is, standing alone, insufficient to warrant
the conclusion that the prosecutor was motived by malice. To the
contrary, Gagnon's offer to resolve the matter through diversion
rather than prosecution (an entirely discretionary matter) tends
to belie any charge of malice. That Christopher and his parents
12 chose prosecution over diversion may speak to their judgment, but
does not reflect malice by Gagnon.
Plaintiff's assertion that the local ordinance is invalid is
equally unpersuasive. In support of that claim, plaintiff simply
says :
The subject matter of the ordinance enacted by the Town of Greenfield that prohibits conduct classified as disorderly conduct was not authorized by New Hampshire RSA 31:39. Nowhere in New Hampshire law are towns authorized to regulate conduct that involves fighting or the use of obscene words which is what the Town of Greenfield has attempted to do by the enactment of the ordinance.
Plaintiff's memorandum at 10 (emphasis supplied). The court
disagrees. RSA 47:17 specifically authorizes municipalities to
enact bylaws and ordinances that, among other things, are
designed "to prevent any riot, noise, disturbance, or disorderly
assemblages." RSA 47:17 II. That statute further authorizes
municipalities to "restrain and punish . . . all kinds or immoral
and obscene conduct." RSA 47:17 XIII.
Thus, contrary to plaintiff's largely unsupported
assertions, the New Hampshire legislature plainly vested the Town
13 of Greenfield with authority to pass a local ordinance of the
sort challenged here. Whether that ordinance might be invalid
for other reasons (say, for example, overbreadth or inconsistency
with the First Amendment) is not addressed by plaintiff.
Consequently, any such argument is deemed forfeited. See Higgins
v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir.
1999) ("The district court is free to disregard arguments that
are not adequately developed."). See also Kauthar SDN BHD v.
Sternberg, 149 F.3d 659, 668 (7th Cir. 1998) ("It is not the
obligation of this court to research and construct the legal
arguments open to parties, especially when they are represented
by counsel.") (citation omitted).
Simply stated, plaintiff has failed to establish that the
local ordinance under which Christopher was charged is invalid or
otherwise void as an unlawful exercise of the municipal police
power by the Town of Greenfield. Thus, she has failed to support
her claim that defendants lacked probable cause to charge
Christopher with violating that ordinance. Finally, she has
failed to introduce sufficient evidence to permit a rational
14 trier of fact to conclude, by a preponderance, that Gagnon acted
with malice when he pursued those charges against Christopher.
Defendants are probably correct in asserting that they are
entitled to absolute prosecutorial immunity from plaintiff's
malicious prosecution claim. See generally Belcher v. Paine, 136
N.H. 137, 144-47 (1992). Nevertheless, even if they are not,
because plaintiff failed to present evidence sufficient to create
a genuine issue of material fact as to two essential elements of
her malicious prosecution claim - lack of probable cause and
malice - defendants are entitled to judgment as a matter of law.
IV. Count Six - Abuse of Process.
In Long v. Long, 136 N.H. 25 (1992), the New Hampshire
Supreme Court adopted the definition of abuse of process set
forth in the Restatement (Second) of Torts, section 682: "One who
uses a legal process, whether criminal or civil, against another
primarily to accomplish a purpose for which it is not designed,
is subject to liability to the other for harm caused by the abuse
of process." Long, 136 N.H. at 29 (emphasis supplied). Comment
b to that section of the Restatement provides:
15 "Primarily." The significance of this word is that there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant. Thus the entirely justified prosecution of another on a criminal charge, does not become abuse of process merely because the instigator dislikes the accused and enjoys doing him harm.
Restatement (Second) of Torts § 682, cmt. b.
More recently, in Clipper Affiliates v. Checovich, 138 N.H.
271 (1994), the Court described abuse of process as follows:
The tort comprises two essential elements: an ulterior purpose and a wilful act in the use of the process not proper in the regular conduct of the proceeding. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance or any formal use of the process itself, which constitutes the tort.
Id., at 276-77 (emphasis supplied) (citation and quotation marks
omitted).
16 Because it is somewhat confusing, plaintiff's abuse of
process claim is perhaps best described in her own words:
The Defendants used the criminal process against Christopher B. because he refused to participate in the Juvenile Diversion Program. Assuming arguendo that the Town ordinance is valid, its violation would constitute a misdemeanor because it contained a community service provision. According to the New Hampshire Criminal Code, RSA 629:9 V, a violation outside of the code is defined as an offense in which there is no other penalty provided other than a fine, forfeiture or other civil penalty. The ordinance enacted by the Town of Greenfield imposes twenty (20) hours of community service which places the ordinance outside of the definition of a violation under New Hampshire law, and therefore constitutes a misdemeanor. Since the Town ordinance was a misdemeanor and since Christopher B. was under seventeen (17) years of age at the time of the alleged commission of the offense he was entitled to be treated as a juvenile under RSA 169-B:1, and 169- B:2 VI, and entitled to all the privileges that a juvenile is accorded under New Hampshire law, including, but not limited to, the confidentiality aspects of RSA 169-B:35. -k
Despite the fact that the Defendants had no legal authority to treat Christopher B. as an adult for committing a misdemeanor, they charged him as an adult because he would not participate in the Juvenile Diversion Program. This is a classic case of utilizing a legal process for which it was not intended in an effort to accomplish an ulterior motive.
Plaintiff's memorandum at 14-15.
17 It is, perhaps, worth noting that, contrary to plaintiff's
assertion, nothing in the record suggests that defendants
knowingly charged Christopher "as an adult for committing a
misdemeanor." Plaintiff's memorandum at 15. For example, the
complaints filed against Christopher all bear a check mark in the
box labeled "violation," establishing that defendants thought
(and intended that) the charges leveled against Christopher were,
in fact, violations and not misdemeanors. See Exhibit M to
defendants' memorandum. Moreover, even if plaintiff had shown
that defendants erroneously charged Christopher as an adult, she
has failed to identify exactly what "collateral advantage"
defendants sought to obtain by their conduct, or how they
attempted to "coerce" or "extort" anything of value from him or
them. Instead, she seems to suggest that defendants pursued
those charges in response to Christopher's rejection of the plea
offer. If that is plaintiff's claim, it would not appear to fall
within the scope of "coercion to obtain a collateral advantage,
not properly involved in the proceeding itself." Clipper
Affiliates, 138 N.H. at 276 (emphasis supplied). Plainly, the
act of prosecuting an individual after he or she rejects a plea
offer cannot be said to constitute conduct "not properly involved
18 in proceeding itself." Rather, it is typically an entirely
appropriate (and permissible) response to a defendant's decision
not to accept a proffered plea agreement.
Nevertheless, looking beyond those shortcomings in
plaintiff's abuse of process claim, it is clear that the linchpin
to that claim (at least as plaintiff sees it) is her assertion
that the town ordinance pursuant to which Christopher was charged
constitutes a misdemeanor, rather than simply a violation. And,
subsumed within that claim is the assertion that, under New
Hampshire law, any offense that may be punished by the imposition
of community service is necessarily either a misdemeanor or
felony; in plaintiff's view, those convicted of violations cannot
be required to perform community service. Again, the court
disagrees.
The New Hampshire Criminal Code defines a violation as an
offense:
so designated by statute within or outside this code and, except as provided in this paragraph, any offense defined outside of this code for which there is no other penalty provided other than a fine or fine and forfeiture or other civil penalty.
19 RSA 625:9 V. The Code then provides that any person convicted of
a violation, "may be sentenced to conditional or unconditional
discharge, or a fine." RSA 651:2 Ill-a. Finally, the Code
provides that:
A person may be sentenced to a period of conditional discharge if such person is not imprisoned and the court is of the opinion that probationary supervision is unnecessary, but that the defendant's conduct should be according to conditions determined by the court. Such conditions may include: -k
(4) Performance of uncompensated public service as provided in RSA 651:68-70.
RSA 651:2 VI (a). Plainly, then. New Hampshire's Criminal Code
contemplates that violations may be punished by, among other
things, a conditional discharge that includes a community service
component. See, e.g.. RSA 126-K:6 (providing that any minor who
unlawfully possesses tobacco products "shall be guilty of a
violation and shall be punished by a fine not to exceed $100 for
each offense or shall be required to complete up to 20 hours of
community service for each offense, pr both.") (emphasis
supplied).
20 In short, the New Hampshire Criminal Code treats the
imposition of monetary fines and the requirement that an
individual perform uncompensated community service as
substantially similar forms of punishment. And, the fact that a
criminal offense imposes community service as a potential penalty
does not, standing alone, compel the conclusion that the offense
is necessarily either a misdemeanor or felony; violations can be
punished by the imposition of a community service requirement.
Because plaintiff's abuse of process claim (at least as she
has postured it) turns on her assertion that the offenses with
which Christopher was charged are misdemeanors, rather than
violations, and because she has failed to demonstrate the
validity of that assertion, defendants are entitled to summary
judgment as to that claim.
Conclusion
For the reasons set forth above, there are no genuine issues
of material fact and defendants have demonstrated that they are
entitled to judgment as a matter of law as to all claims asserted
against them. Defendants' motion for summary judgment (document
21 no. 51) is, therefore, granted. The Clerk of Court shall enter
judgment in accordance with this order and close the case
SO ORDERED.
Steven J. McAuliffe United States District Judge
March 26, 2002
cc: William E. Aivalikles, Esq. John P. Sherman, Esq.