New Hampshire Town and City
Expanded Immunity for Police Officers: What It Means for Municipalities
New Hampshire Town and City, March 2008
By Andrew B. Livernois, Esq.
The doctrine of official immunity is designed to encourage and safeguard the ability of government officials to exercise their duties and carry out their functions without being hampered by concerns over possible liability from litigation. On September 21, 2007, the New Hampshire Supreme Court issued an opinion (Sarah Everitt v. General Electric Company, Docket No. 2006-481) which will have far-reaching consequences for police officers and the municipalities that employ them.
In its decision, the Supreme Court adopted—for the first time—the doctrine of official immunity for municipal police officers. The Court held that official immunity shields police officers from liability for common-law negligence claims when they are performing discretionary actions within the scope of their official duties, so long as they are not acting in a wanton or reckless manner.
Significance of Decision
This decision is significant because the Court has created an additional layer of protection for police officers who must often react quickly and decisively in tense or difficult situations. So long as the officer exercises his or her discretion in a reasonable fashion, the officer will be immune from any common-law suit for negligence. It is also significant because it may result in immunity being extended in the future to other municipal officials who exercise discretion in their duties.
This type of immunity is closely related to “qualified immunity," which has long been available to protect police officers from liability for federal constitutional claims. Based on the Everitt decision, police officers are now granted the same types of protection from liability in claims brought under state law.
In reaching this decision, the Supreme Court recognized that police officers—who perform a vital societal function—are regularly called upon to exercise their discretion in difficult situations which can have serious repercussions to both the individuals involved and the general public. To carry out this function, police officers must be free to exercise their judgment freely, without fear of being second-guessed or subjected to personal liability whenever they make a judgment call where someone has been harmed and blamed the police officer for it. The Court recognized that, in many instances, police officers’ actions provoke anger from the citizenry, even when the officers do nothing wrong.
Facts of Underlying Case
The Everitt case grew out of a police officer’s decision whether or not to take a person into protective custody. The suspect in the case, Jeremiah Citro, was an employee of a General Electric facility in Hooksett. On November 1, 2003, Mr. Citro showed up at work—despite being told the previous day not to come to work and to stay away from the premises. The police were called and, upon arrival at the scene, spoke to Mr. Citro. The officers observed that Mr. Citro was acting strangely, and they seemed to have difficulty understanding the situation. They conducted a field sobriety test, determined that Mr. Citro was not intoxicated and there was no basis to detain him, and let him leave. Several hours later, Mr. Citro was involved in a motor vehicle accident that caused significant injuries to Sarah Everitt. Ms. Everitt sued—among others—the Town of Hooksett and individual police officers involved on grounds that they had failed to take Mr. Citro into custody, claiming that their failure was negligent because Mr. Citro was disoriented and not in a safe condition to drive.
Lawyers acting on behalf of the town and the officers argued that the officers should be immune from suit based upon the doctrine of “official immunity." The lower court rejected that argument, and an appeal was taken.
Supreme Court’s Reasoning
The Supreme Court held that municipal police officers are immune from personal liability for “decisions, acts or omissions that are (i) made within the scope of their official duties while in the course of their employment; (ii) discretionary rather than ministerial; and (iii) not made in a wanton or reckless manner." In addition, the Court held that the town may enjoy vicarious immunity from suits against the town based upon the alleged negligence of its officers.
The decision in Everitt means that, in many instances where police officers are sued for negligence for having taken some action—or failed to do some action—they will have a defense that can be used to get the claim dismissed. For example, if an officer makes a decision requiring some judgment (for example, to make an arrest or not, to continue a pursuit or not, to detain someone or not) and that act or omission results in an injury and lawsuit filing, the officer can seek to have the case dismissed on grounds that the officer’s actions are immune from suit.
In many cases, the doctrine of official immunity will provide a means to avoid the expense and difficulty of litigation. This is because the immunity in Everitt is not merely immunity from liability but immunity from suit. Lawyers who represent municipalities and municipal officials will want to consider bringing a motion to dismiss or a motion for summary judgment early in the litigation under Everitt, thereby avoiding the necessity of extensive discovery and trial preparation.
When Immunity Applies
In order for official immunity to apply, the following three conditions must be met:
1. Acting Within Scope of Duties
First, the act or omission complained about must have been within the scope of the individual’s official duties and have been undertaken within the course of their employment. Official immunity will not apply if an individual is involved in some private, off-duty activity or is engaged in unauthorized behavior.
Difficult questions may arise in cases involving officers who are technically off-duty but who observe some criminal activity that occurs in their presence and take action. It is not clear whether the courts would grant official immunity in those cases. The answer will most likely hinge on whether the police officer was under an obligation to respond to unlawful activities, even during off-duty hours.
2. Discretionary Activities
The second factor in determining whether official immunity applies is whether the activity that the officer engaged in was a discretionary activity or merely a ministerial function. Discretionary actions are those that require exercising “personal deliberation and individual professional judgment that necessarily reflects the facts of the situation and the professional goal." An act is discretionary when it involves some choice regarding what is just and proper under the circumstances. Examples of discretionary activities would include such things as the decision whether to arrest a person or not, the decision to use force and the decision to continue a pursuit.
By contrast, a decision is “ministerial" if it is an activity involving the execution of a specific duty to be performed in a prescribed manner, without exercising judgment or discretion. Examples of ministerial activities include such routine activities as driving a cruiser on routine patrol or putting on handcuffs in a way that does not injure a person.
Thus, a police officer on regular patrol who drives their vehicle carelessly and causes an accident will, most likely, not be protected by official immunity as that is not the sort of activity requiring the exercise of professional judgment regarding the proper course of conduct. By contrast, an officer’s decision whether or not to use force or to call off a pursuit is much more likely to be subject to official immunity since those decisions require a weighing of various factors (for example, public risk if pursuit continues) and exercise of judgment.
3. Not Wanton or Reckless
Finally, in order for official immunity to apply, the police officer must not have been acting wantonly or recklessly. Behavior is wanton or reckless when it is undertaken in the face of a known risk—a risk of harm which is disregarded. Wantonness and recklessness are high standards of culpability; they constitute more than negligence or a mistake.
So long as a police officer acts reasonably under the circumstances, even if mistakenly, official immunity will be available. It is understood that police officers are often required to make split-second decisions in stressful circumstances. It is too easy for outside observers to later second-guess those decisions. Therefore, if the officer had some articulated reason for his or her actions, immunity will apply.
Effect on Municipalities
An employer can normally be held liable for the negligent acts of its employees under the doctrine of respondeat superior, whether or not the municipality itself actually did anything wrong. This type of liability is known as “vicarious liability." It is different from direct liability, which occurs in cases where the town’s own actions or inactions contribute to causing an injury (for example, by adopting some policy or failing to adequately train employees).
The Everitt decision alters this landscape by extending official immunity to protect the town from a claim of vicarious liability. Under Everitt, when a town is sued under a theory of respondeat superior, the police officer’s official immunity will also provide “vicarious immunity" to the town.
Official immunity will not protect municipalities from claims of direct liability. Therefore, municipalities must continue to take care in supervising and managing its police officers plus take steps to ensure that training being afforded to police department staff is adequate and timely.
One important issue that remains undecided following Everitt is whether official immunity will be extended in the future to cover other municipal officials besides police officers. Everitt deals specifically with police officers. It remains to be seen whether the Supreme Court will extend the doctrine to other town officials.
In Everitt, the Court relied on the fact that police officers are only able to fulfill their function in society if they are unhampered by extraneous pressures and allowed to exercise their best discretion. In addition, the Court noted that police functions cannot generally be performed by private entities. Also, police officers face frequent accusations of wrongdoing by people who encounter the police, even when the officers are honestly trying to exercise their best judgment. Moreover, the Court noted that vexatious litigation could interfere with the ability of police officers to perform their duties.
Against these factors, the Court weighed the possibility that citizens harmed by police officers performing their duties improperly could be barred from recovering for their injuries by the doctrine of official immunity. The Court balanced these competing interests and, in the end, concluded that public policy required that official immunity be extended to police officers.
In future cases, litigants seeking to extend official immunity to other governmental actors would be well served by examining these factors and arguing that they likewise support the extension of immunity in those cases. It is important to carefully analyze the nature of the task or function that the governmental official plays, the amount of discretion that necessarily is required to perform their task, and the likelihood that citizens will later second-guess those decisions. The greater the degree to which those factors apply, the more likely the Supreme Court will extend official immunity to other municipal officers and officials in the future.
Andrew Livernois is an attorney at the law firm of Ransmeier & Spellman, P.C., in Concord, New Hampshire and specializes in representing municipalities and counties in litigation at both federal and state levels.
Editor’s Note: This article deals with a case summarized in the “Court Update" section of November/December 2007 edition New Hampshire Town and City. The New Hampshire Local Government Center is available for legal assistance on this and other issues of concern to local officials.