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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Merrimack
No. 2012-440


                               JAMES A. CONRAD

                                        v.

               NEW HAMPSHIRE DEPARTMENT OF SAFETY & a.

                          Argued: November 7, 2013
                       Opinion Issued: November 6, 2014

      Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and
C. Kevin Leonard on the brief, and Mr. Douglas orally), for the plaintiff.


      Michael A. Delaney, attorney general (Laura E. B. Lombardi, assistant
attorney general, on the brief and orally), for the defendants.

        BASSETT, J. The plaintiff, James A. Conrad, appeals an order of the
Superior Court (Smukler, J.) granting the defendants’ motion for a directed
verdict on grounds that they were entitled to sovereign, official, and qualified
immunity. The plaintiff brought suit against both defendants, New Hampshire
Department of Safety (NHDS) and New Hampshire State Trooper Lieutenant
Mark Myrdek, for false imprisonment, and against Myrdek for a violation of his
civil rights pursuant to 42 U.S.C. § 1983 (2012), seeking damages for events
that occurred on November 28, 2007. The defendants cross-appeal, raising
evidentiary issues. We affirm.
I. Facts

      The following facts are supported by the record. On November 28, 2007,
the plaintiff was a state trooper working as a detective in the Major Crimes
Unit. He had been employed as a state trooper since 1993.

       In September 2007, the plaintiff was experiencing marital problems. On
September 22, after the plaintiff reported his wife missing, he failed to stop for
police officers when speeding through the town of Meredith in his personal
vehicle. Thereafter, he requested state police assistance, including the canine
unit, to search for his wife after her car was located behind a school. The
plaintiff’s unit commander, Captain Russell Conte, received a telephone call at
approximately three o’clock in the morning from the plaintiff’s troop
commander, informing him of these events.

       The report of this incident was provided to the director of the state police,
Colonel Frederick Booth, and to Myrdek, commander of the state police
professional standards unit. The report included the following facts: that the
plaintiff had his wife’s car towed from the school parking lot; he returned to the
parking lot to wait for her; and that, when she returned to the parking lot
accompanied by another man, the plaintiff told him that he was “f-ing lucky to
be breathing.” On Monday September 24, Booth met with the plaintiff and
cautioned him to “be scrupulously careful about not bringing his personal life
into his work life.”

       In October, the plaintiff’s wife filed for divorce. That same month, she
called the state police, claiming that the plaintiff had locked himself in the
bathroom with his service weapon. The plaintiff denied that the incident had
occurred; nonetheless, he was placed on administrative leave. He was relieved
of his service weapon and police cruiser, and referred to the Employee
Assistance Program. The plaintiff returned to full duty in early November
2007, after a counselor determined that he was “currently not a danger to
himself or others.”

       On November 8, following a family court hearing attended by the plaintiff
and his estranged wife, the court issued a temporary divorce decree. Pursuant
to that decree, “Each party [was] restrained and enjoined from entering the
home or the place of employment of the other party, and from harassing,
intimidating or threatening the other party or his/her relatives or other
household members.” The plaintiff testified that he was not aware of the
restraining order prior to the incident on November 28, because his mail was
still being sent to the marital home in Laconia and he was staying in Concord.

      On November 26, Conte received a telephone call from the Laconia Police
Department, informing him that the plaintiff’s wife had requested additional
patrols by her home after she and the plaintiff had argued over the telephone


                                         2
the previous night. During that phone call, the plaintiff told his wife that he
was “going to hell for what [he wanted] to do.”

       Later on November 26, the plaintiff visited Conte’s office and told him he
was thinking of resigning and “going . . . away.” Conte described the plaintiff
as being “disheveled,” “emotional,” and “angry about his wife.” Given that the
plaintiff was only eight months from full retirement, Conte encouraged him to
seek the advice of an attorney before making a final decision. When asked by
Conte about his “going to hell” statement, the plaintiff explained that it referred
to him leaving his children, moving out of state, and withdrawing his
retirement funds to split with his wife. Although Conte testified that he took
the plaintiff’s explanation at “face value,” he also had “reservations.”
Accordingly, as soon as the plaintiff left his office, Conte went to speak with his
superior to advise him of the conversation so that his superior could pass it on
to Booth.

      The next day, Conte received a telephone call from the plaintiff’s wife,
asking where the plaintiff was. She told Conte, among other things, that she
thought the plaintiff had been in her residence the night before, and that he
had erased messages on the answering machine and “moved some stuff
around.” Following this conversation, Conte spoke by telephone with the wife’s
attorney who confirmed that the temporary divorce decree included a provision
prohibiting the plaintiff from entering his wife’s residence.

      Conte was “very concerned” and immediately discussed the matter with
Major Susan Forey, the head of the Field Operations Bureau, and Myrdek.
Based upon information communicated to Conte by the plaintiff’s wife –
including that the plaintiff may have been in her residence in violation of the
temporary divorce decree, that she was concerned about the plaintiff’s welfare,
and that the plaintiff had allegedly commented to her that he knew where her
attorney lived – Conte, Forey, and Myrdek decided to open an internal affairs
investigation and to have Myrdek speak with the plaintiff the following day.

       On November 28, the plaintiff was attending an off-site training session
when he was contacted by NHDS staff and told to report to Myrdek’s office at
state police headquarters. The plaintiff arrived at Myrdek’s office at
approximately 2:05 p.m. Myrdek informed him that he was subject to an
administrative interview and provided him with a “Garrity Warning” containing
the allegations that were the subject of the investigation. See Garrity v. New
Jersey, 385 U.S. 493 (1967); Appeal of Waterman, 154 N.H. 437, 442 (2006)
(before any interview of a state trooper may take place a “Garrity Warning”
must be given, “inform[ing] the accused that the purpose of questioning is to
assist in determining whether to impose administrative discipline”). These
allegations included “[t]he possible violation of a temporary court order
regarding [the plaintiff’s] pending divorce and comments [he] may have made to
[his] wife regarding [his] actions and her attorney.” The plaintiff responded that


                                         3
the allegations were “bullshit” and that his wife “can’t prove I was in the house,
because I wasn’t.” The plaintiff was agitated. The plaintiff stated that he
wanted union representation and Myrdek allowed him to leave to make such
arrangements.

       The plaintiff contacted a union representative, Trooper Christopher
LaPorte, who in turn asked to speak to Myrdek. The plaintiff returned to
Myrdek’s office at approximately 2:30 p.m. and Myrdek spoke on the telephone
with LaPorte. Myrdek explained that there had been an allegation that the
plaintiff had violated a restraining order and made threats against his
estranged wife, and that immediate action had to be taken. LaPorte indicated
that he thought the issues were beyond his ability as a representative and
suggested that the plaintiff seek the assistance of the union attorney, James
Donchess. Myrdek agreed that it would be a good idea to have Donchess
present for the interview if he could get there within a reasonable amount of
time. The plaintiff left Myrdek’s office again to continue to make arrangements
for union representation. The plaintiff was still agitated.

       Sometime between 2:45 and 3:00 p.m., as the plaintiff was returning to
Myrdek’s office to report on his efforts to contact Donchess, he met Myrdek in
the hall. The plaintiff informed Myrdek that Donchess was not available and
that the interview would need to be rescheduled to Thursday or Friday.
Myrdek directed the plaintiff back to Myrdek’s office and asked him to close the
door. The plaintiff and Myrdek argued about whether the interview was going
to occur that day, their voices rising. The plaintiff told Myrdek that he was not
going to speak to him without Donchess present. Myrdek responded that the
interview was going to be conducted that day, so the plaintiff would need to
find other union representation. When Myrdek told the plaintiff he was not
going to let him leave headquarters until the plaintiff spoke with him about the
allegations, the plaintiff became enraged.

       The plaintiff then told Myrdek he was quitting and he tried to hand him a
resignation letter. Myrdek refused to accept it and told the plaintiff the colonel
would not accept it either. The plaintiff responded, “Well, F you and F the
colonel. I’m leaving, I quit.” The plaintiff then opened up his jacket and said,
“[H]ere’s my gun and here’s my badge, I quit.” Myrdek put his arms up and
said, “Jimmy, Jimmy, Jimmy, calm down. I don’t want your gun and I don’t
want your badge.” The plaintiff told Myrdek that he was leaving. Myrdek
responded by telling him that he couldn’t leave, and that he needed to calm
down. Myrdek testified that the plaintiff appeared to be out of control and not
making rational decisions.

      When the plaintiff attempted to leave the office, Myrdek stepped between
the plaintiff and the closed door, put his hand on the doorframe, and ordered
the plaintiff to stay. The plaintiff reached under Myrdek’s arm and opened the
door. Because the door opened in, Myrdek stepped out of the way so the


                                        4
plaintiff could open the door, but then stepped back into the doorway. Myrdek
continued to urge the plaintiff to calm down and ordered him to sit down. The
plaintiff said, “I f***ing quit . . . I’m all done. F*** you,” and walked past
Myrdek into a common area.

       Myrdek followed the plaintiff into the common area and again stood in
front of him, ordering him to go back in his office and sit down. Lieutenant
Liebl, whose office was behind Myrdek’s, was watching from his office doorway
because he had heard loud arguing in Myrdek’s office. The plaintiff asked why
Myrdek was taking the wife’s side, referred to her as a “c**t,” said he was “all
f***ing done” and walked past Myrdek. Liebl testified that because of the
plaintiff’s “demeanor, the words, the profanity, the crudeness,” that “clearly
[the plaintiff] was very, very agitated, very angry.” As the plaintiff continued
down the hallway toward an exit door, he punched the door with considerable
force. Myrdek then grabbed the plaintiff in “a bear hug,” and he and Liebl
struggled with the plaintiff.

       Forey, hearing “alarming raised voices,” left her office to see what was
happening and saw the plaintiff, Myrdek, and Liebl in a “scuffle.” As the three
officers continued to struggle, Forey put her hand on her taser. Because the
plaintiff was so angry, Forey thought that the officers were not going to be able
to overpower him and that she would have to “tase” him. The plaintiff slowly
relaxed and Myrdek slowly released his hold on him and asked him to come
back into the office and wait for the union representatives. When the plaintiff
and Myrdek went back into Myrdek’s office, Forey positioned officers outside
the door for “everyone’s safety,” including the civilian personnel working in the
building.

       Inside the office, the officers removed the plaintiff’s weapon and handed
it out the door. The plaintiff remained there for approximately the next two
hours. During that time, the plaintiff was very emotional, crying, and saying
his career was over. He expressed hostility toward his wife, and he said that
life was not worth living. The plaintiff said he was going to take Myrdek’s gun,
thereby forcing another officer to shoot him. At one point he threatened to
jump out a window, and talked about committing suicide. He stated he wished
he had been killed in Iraq. He called his wife on the telephone and yelled
vulgarities.

      When Booth returned to police headquarters at approximately 4:30 p.m.,
Forey met with him and an attorney from the department of safety and told
them what had happened. Booth then met with Department of Safety
Commissioner John Barthelmes, and, “[i]n order to give [the plaintiff] a fair
judgment,” the decision was made to have the Concord Police Department take
custody of the plaintiff and handle any criminal charges that might result from
the incident.



                                        5
       The Concord police arrived at headquarters at approximately 5:30 p.m.
Forey met with them when they entered the building to apprise them of the
gravity of the situation and warn them, for their own safety, not to let their
guard down at the hospital. When the plaintiff was told he was under arrest,
he “exploded,” was “screaming and crying,” and threatened one of the Concord
police officers, saying that he was going to take the officer’s gun and shoot the
officer and then turn the gun on himself. Concord police took the plaintiff into
custody and transported him by ambulance to Concord Hospital. The plaintiff
was subsequently admitted to the New Hampshire Hospital.

       The plaintiff brought suit against NHDS and Myrdek for false
imprisonment and against Myrdek for a violation of 42 U.S.C. § 1983 (section
1983). Although the trial court reserved the section 1983 claim for its own
determination, it held a nine-day jury trial in May 2012 on the plaintiff’s false
imprisonment claim. The defendants moved for a directed verdict at the close
of the plaintiff’s case. The defendants argued that the false imprisonment
claim against NHDS and Myrdek was barred by sovereign and official
immunity, and the section 1983 claim against Myrdek was barred by qualified
immunity. The trial court took the motion under advisement. Following
closing arguments and jury instructions, the trial court stated that, should the
jury return a verdict for the plaintiff, it would rule on the immunity issues. The
jury returned a verdict for the plaintiff, awarding $1.5 million in compensatory
damages on the false imprisonment claim, attributing seventy percent of the
fault to NHDS and thirty percent to Myrdek.

      The trial court thereafter ruled on the defendants’ motion for a directed
verdict. In its order the court noted that “[t]he defendants’ motion does not
attack the plaintiff’s ability to satisfy the elements of a false imprisonment
claim; indeed, at this point they cannot do so because the jury has found that
the plaintiff met his burden of proving the elements of false imprisonment.”
The trial court nonetheless concluded that NHDS was entitled to sovereign
immunity, and that Myrdek was entitled to official immunity, on the false
imprisonment claim.

       Viewing the record in the light most favorable to the plaintiff, the court
found that the NHDS officers, acting within the scope of their employment,
“had a reasonable basis to believe that their conduct was lawful” because “[t]he
officers knew that the plaintiff was having an extremely difficult time with the
divorce,” “[t]he plaintiff used highly inappropriate language throughout the
interview process, most of which was directed toward his wife,” and “the
plaintiff became extremely upset and punched a door hard before he left the
common area.” The court also found that the NHDS officers “could have
reasonably believed that the plaintiff violated a protective order” because Conte
and Myrdek “received information from the Laconia police department and from
Ms. Conrad that the plaintiff . . . [had] enter[ed] Ms. Conrad’s home” and,
further, that the officers “had information that the plaintiff told his wife he


                                        6
would ‘go to hell’ for what he ‘was about to do.’” As to the two-hour detention
of the plaintiff at state police headquarters, the trial court found that the
officers believed that they were justified in detaining the plaintiff based upon
his behavior and statements, including his threats to commit “suicide by cop.”
The court also found that the officers acted reasonably in contacting their
superiors and that because there was “no evidence that any participant failed
to treat the matter with the appropriate priority,” under the circumstances “the
two-hour period to allow the officers to deliberate and come to a referral
decision was not unreasonable.” Accordingly, the trial court concluded that
NHDS was entitled to sovereign immunity.

       In addition, the court found that Myrdek was entitled to official immunity
under RSA 99-D:1 (2013), which provides that state officials and employees are
protected from “civil actions arising from acts committed within the scope of
their official duty while in the course of their employment for the state and not
in a wanton or reckless manner.” RSA 99-D:1. The court reasoned that
because it had already determined that Myrdek, “in conjunction with his fellow
officers, acted . . . within the scope of his employment,” and “had a reasonable
basis to believe that his conduct was lawful,” his conduct could not be deemed
wanton or reckless.

       Finally, the trial court found that Myrdek was entitled to qualified
immunity on the plaintiff’s section 1983 claim. The court noted that “[t]he
plaintiff’s writ alleges that [Lieutenant] Myrdek violated his Fourth Amendment
right to be free from unreasonable searches and seizures in that [Lieutenant]
Myrdek intentionally or recklessly restrained the plaintiff, without probable
cause, for several hours.” The court reasoned that, under the circumstances,
the plaintiff’s right to be free from confinement was not “sufficiently clear,” and
that Myrdek “had a rational basis for his concern about Ms. Conrad’s safety.”
After observing that courts “consistently recognize the difficulties law
enforcement officers face in determining whether particular searches or
seizures comport with the Fourth Amendment,” the trial court concluded that,
given “Myrdek’s concomitant and commingled roles of employer and law
enforcement officer,” Myrdek was entitled to qualified immunity. (Quotation
omitted.) The trial court denied the plaintiff’s motion for reconsideration, and
this appeal followed.

II. Issues on Appeal

       The plaintiff argues that the trial court failed to apply the correct
standard when it ruled on the defendants’ motion for a directed verdict, and
erred in granting the motion. The defendants cross-appeal; however, because
we affirm the trial court’s rulings on immunity, we need not address the cross-
appeal.




                                         7
        This case involves three types of immunity: sovereign, official, and
qualified. “Various concepts of immunity exist under both common law and
statutory law to protect governmental entities and public officials from liability
for injury allegedly caused by official conduct.” Everitt v. Gen. Elec. Co., 156
N.H. 202, 209 (2007). Immunity is based upon the recognition that “certain
essential, fundamental activities of government must remain immune from tort
liability so that our government can govern.” Id. at 210 (quotation omitted).

       “Sovereign immunity protects the State itself from suit in its own courts
without its consent, and shields it from liability for torts committed by its
officers and employees.” Id. at 209 (quotations omitted). “With respect to
personal liability for public officials and employees, the doctrines of qualified
immunity and official immunity provide immunity for wrongful acts committed
within the scope of their government employment.” Id. Qualified immunity
“shields against lawsuits alleging constitutional violations, such as claims
brought under 42 U.S.C. § 1983.” Id. Official immunity “shields against
lawsuits alleging common law torts, such as negligence.” Id.

       “The goal of official immunity is to protect public officials from the fear of
personal liability, which might deter independent action and impair effective
performance of their duties.” Id. at 215 (quotation omitted). “A genuine need
exists to preserve independence of action without deterrence or intimidation by
the fear of personal liability and vexatious suits.” Id. (quotation and brackets
omitted).

      It would be manifestly unfair to place any public official in a
      position in which he is required to exercise his judgment and at
      the same time is held responsible according to the judgment of
      others, who may have no experience in the area and may be much
      less qualified than he to pass judgment in a discerning fashion or
      who may now be acting largely on the basis of hindsight.

Id. (quotation and brackets omitted).

        Because immunity provides public officials immunity from suit, rather
than a mere defense to liability, if at all possible, immunity claims are to be
resolved before trial, thereby freeing officials “from the concerns of litigation,
including avoidance of disruptive discovery.” Ashcroft v. Iqbal, 556 U.S. 662,
685 (2009) (quotation omitted); see Hunter v. Bryant, 502 U.S. 224, 228 (1991)
(“Immunity ordinarily should be decided by the court long before trial.”);
Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009). Further, the
collateral consequences of potential liability and of mounting a defense, which
“include the general costs of subjecting officials to the risks of trial – distraction
of officials from their governmental duties, inhibition of discretionary action,
and deterrence of able people from public service,” are also avoided. Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985) (quotation omitted). Given that “the purpose


                                          8
of immunity is to operate as a bar to a lawsuit,” it is “effectively lost if a case is
erroneously permitted to go to trial.” Everitt, 156 N.H. at 221 (quotation
omitted).

III. Standard of Review

      “A trial court may grant a motion for a directed verdict only if it
determines, after considering the evidence and construing all inferences
therefrom most favorably to the non-moving party, that no rational juror could
conclude that the non-moving party is entitled to any relief.” Dillman v. N.H.
College, 150 N.H. 431, 434 (2003). The court “may not weigh the evidence or
judge the credibility of witnesses and should deny the motion for a directed
verdict unless it can affirmatively determine that the plaintiff is not entitled to
any relief on the evidence presented.” Clark & Lavey Benefits Solutions v.
Educ. Dev. Ctr., 157 N.H. 220, 226 (2008). We will uphold a trial court’s ruling
on a motion for a directed verdict “when the record supports the conclusion
that the trial court did not commit an unsustainable exercise of discretion.”
Dillman, 150 N.H. at 434; see Hall v. Dartmouth Hitchcock Med. Ctr., 153 N.H.
388, 393 (2006) (explaining that although made at different points in a trial,
“motions for directed verdict and judgment notwithstanding the verdict are
essentially the same, and they are governed by identical standards”).

       Sovereign immunity is a jurisdictional question, LaRoche, Adm’r v. Doe,
134 N.H. 562, 566 (1991), subject to de novo review, see, e.g., In the Matter of
Mallett & Mallett, 163 N.H. 202, 207 (2012). Likewise, qualified immunity is a
legal question, which we review de novo. Snelling v. City of Claremont, 155
N.H. 674, 684 (2007); see Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d
508, 525 (1st Cir. 2009).

       In reviewing the qualified immunity ruling, “we construe the facts in the
light most favorable to [the plaintiff], and decide legal questions de novo.”
Wilson v. City of Boston, 421 F.3d 45, 53-54 (1st Cir. 2005). “[I]t makes little
difference that we review the qualified immunity question after trial instead of
before it . . . . [T]he procedural posture . . . does not greatly influence the
standard of review.” Id. (quotation and brackets omitted); see Porter v. City of
Manchester, 151 N.H. 30, 48 (2004) (“When a qualified immunity defense is
pressed after a jury verdict, the evidence must be construed in the light most
hospitable to the party that prevailed at trial.” (quotation omitted)).

IV. Legal Standard – Qualified Immunity

       The plaintiff argues that the trial court “violated the correct standard of
review required when conducting a qualified immunity inquiry after a jury
verdict.” He asserts that in a Fourth Amendment case “[w]hen a defense of
qualified immunity is pressed after a jury verdict, . . . the evidence must be
construed in the light most hospitable to the party that prevailed at trial,” and


                                          9
“deference should be accorded to the jury’s discernible resolution of disputed
factual issues,” quoting Jennings v. Jones, 499 F.3d 1, 7 (1st Cir. 2007)
(emphasis and quotations omitted). According to the plaintiff, “[t]he post-
verdict standard of review requires the trial court to give deference to the jury’s
determination of facts that should be controlling in the immunity analysis”
and, therefore, “the trial court is required to apply those findings of fact in
conducting the immunity analysis.” (Emphases omitted.)

      In response, the defendants argue that the plaintiff’s “assertion that the
jury was instructed on the immunity issue and found that the defendants
could not have reasonably believed it was lawful to detain [him] is incorrect.”
The defendants assert that “[w]hile the facts are considered in the light most
favorable to the [p]laintiff, the immunity question was for only the trial court to
decide.” (Emphasis omitted.) Thus, they contend, “the question on appeal is
not whether the jury could have found that the Defendants did not reasonably
believe their conduct to be lawful, but rather whether the trial court could have
found that the Defendants reasonably believed that their conduct was lawful.”
(Emphases omitted.)

       As the United States Court of Appeals for the First Circuit has observed
regarding claims of qualified immunity under federal law, “the Supreme Court
has not clearly indicated whether the judge may act as fact-finder when there
is a factual dispute underlying the qualified immunity defense or whether this
function must be fulfilled by a jury.” Kelley v. LaForce, 288 F.3d 1, 7 n.2 (1st
Cir. 2002). The trial court concluded that it “need not resolve this issue . . .
because the plaintiff cannot prevail on the immunity issue on the evidence
presented” during the jury trial. Accordingly, after explicitly noting that the
plaintiff had met his burden at trial of proving the elements of false
imprisonment, the trial court proceeded to “bas[e] its [immunity] analysis on
the trial record viewed in the light most favorable to the plaintiff.” We find no
error in the standard applied by the trial court.

V. Qualified Immunity as to Myrdek

        We first consider the plaintiff’s argument that the trial court erred in
granting a directed verdict on his section 1983 claim. Section 1983 provides a
civil remedy against any person who, under color of state law, deprives another
of rights protected by the United States Constitution. Collins v. Harker
Heights, 503 U.S. 115, 120 (1992). Section 1983 provides:

      Every person who, under color of any statute, ordinance,
      regulation, custom, or usage, of any State or Territory or the
      District of Columbia, subjects, or causes to be subjected, any
      citizen of the United States or other person within the jurisdiction
      thereof to the deprivation of any rights, privileges, or immunities
      secured by the Constitution and laws, shall be liable to the party


                                        10
      injured in an action at law, suit in equity, or other proper
      proceeding for redress . . . .

42 U.S.C. § 1983.

       According to the plaintiff, the claim against Myrdek is “based on his
unlawful and unreasonable seizure of the plaintiff in his office for the purpose
of forcing the plaintiff to participate in an employment-related internal
investigation.” The plaintiff asserts that his claim “is based on [Myrdek’s]
refusal to recognize [his] right to discontinue [the] investigatory interview and
leave based on (1) his right to union representation, and (2) his right to resign
immediately.” Thus, he argues, “Myrdek’s demand that [he] submit to an
interview prior to 3:00 p.m. . . . resulted in multiple instances of unlawful
confinement . . . in violation of [his] constitutional rights.”

       The plaintiff acknowledges that his first two encounters with Myrdek –
at 2:05 p.m., when he received the Garrity warning, and at approximately 2:30
p.m., when he returned to Myrdek’s office to report on his efforts to arrange
union representation – “are not and never were part of [his] claim of false
imprisonment.” Rather, he asserts that his “unlawful confinement started
during his third meeting in Myrdek’s office, which began at 2:45 to 3:00 p.m.,
and then continued into the hallway.” (Emphasis omitted.) Thus, we limit our
qualified immunity analysis to the third meeting beginning at approximately
2:45 p.m.

       “The doctrine of qualified immunity provides a safe harbor for public
officials acting under the color of state law who would otherwise be liable under
42 U.S.C. § 1983 for infringing the constitutional rights of private parties.”
Whitfield v. Melendez-Rivera, 431 F.3d 1, 6 (1st Cir. 2005). Qualified immunity
protects police officers “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Mlodzinski v. Lewis, 648 F.3d 24, 32
(1st Cir. 2011) (quotation omitted). The doctrine “balances two important
interests – the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009).

       “The protection of qualified immunity applies regardless of whether the
government official’s error is a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact.” Id. (quotation omitted). The
doctrine “is a compromise that strives to balance the desire to compensate
those whose rights are infringed by state actors with an equally compelling
desire to shield public servants from undue interference with the performance
of their duties and from threats of liability which, although unfounded, may
nevertheless be unbearably disruptive.” Whitfield, 431 F.3d at 6 (quotation


                                        11
and brackets omitted). Qualified immunity “provides ample protection to all
but the plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341 (1986).

     The qualified immunity inquiry is comprised of a two-part test. See
Maldonado, 568 F.3d at 268-69. Pursuant to that test, a court must decide:

      (1) whether the facts alleged or shown by the plaintiff make out a
      violation of a constitutional right; and (2) if so, whether the right
      was “clearly established” at the time of the defendant’s alleged
      violation.

             It is clear from the Supreme Court’s description of the
      second, “clearly established” step of the qualified immunity
      analysis that the second step, in turn, has two aspects. One
      aspect of the analysis focuses on the clarity of the law at the time
      of the alleged civil rights violation . . . . The other aspect focuses
      more concretely on the facts of the particular case and whether a
      reasonable defendant would have understood that his conduct
      violated the plaintiff[’s] constitutional rights.

Id. at 269 (citations omitted). “If even on plaintiff[’s] best case, there is no
violation of [his] rights, or the law was not clearly established, or an objectively
reasonable officer could have concluded (even mistakenly) that his or her
conduct did not violate [the plaintiff’s] rights, then qualified immunity must be
granted.” Mlodzinski, 648 F.3d at 28.

        “[W]hile it is frequently appropriate for courts to answer each step in
turn, it is not mandatory that courts follow the two-step analysis sequentially.”
Maldonado, 568 F.3d at 269-70. Courts may exercise discretion in deciding
which of the prongs “of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at hand.” Pearson, 555
U.S. at 236; see Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). In some cases,
“discussion of the first prong of the qualified immunity analysis will result in a
substantial expenditure of scarce judicial resources on difficult questions that
have no effect on the outcome of the case.” Maldonado, 568 F.3d at 270
(quotation omitted). “This expenditure of resources by the courts and the
parties is difficult to justify in cases where the constitutional questions
presented are heavily fact-bound, minimizing their precedential value.” Id.

       For purposes of its qualified immunity analysis, the trial court assumed
that the plaintiff had established “a cognizable constitutional violation under
the Fourth Amendment.” On appeal, Myrdek likewise assumes that the
plaintiff has “satisfied the first prong of the test.” Accordingly, we will assume,
without deciding, that Myrdek’s conduct violated the plaintiff’s Fourth
Amendment right to be free from unreasonable seizure.


                                         12
        Under the second prong of the qualified immunity analysis, the trial
court determined that the plaintiff’s right to be free from confinement under the
circumstances in this case “was not clearly established,” and that “the officers
had a reasonable basis to believe that their conduct was lawful.” The plaintiff
asserts that because the jury rendered a verdict in his favor on the false
imprisonment claim, it necessarily found: that his resignation was valid and
not tainted by the defendants’ suggestion that it was “irrational”; that the
circumstances presented “did not give rise to a reasonable suspicion that [he]
presented an immediate danger of bodily harm to himself or others prior to his
detention”; and that “Myrdek did not have an objectively reasonable basis . . .
to believe that there was any emergency at hand which necessitated restraining
[his] liberty.” (Emphases and quotation omitted.) The plaintiff argues that the
trial court “simply ignored” the jury’s findings that Myrdek’s conduct was not
objectively reasonable. We disagree.

       The linchpin of qualified immunity is the objective reasonableness of the
official’s conduct. Anderson v. Creighton, 483 U.S. 635, 638-39 (1987). In
Anderson, the plaintiffs argued that it was “inappropriate to give officials
alleged to have violated the Fourth Amendment – and thus necessarily to have
unreasonably searched or seized – the protection of a qualified immunity
intended only to protect reasonable official action” because, they asserted, it is
impossible “to say that one ‘reasonably’ acted unreasonably.” Id. at 643. The
United States Supreme Court rejected this argument, stating: “The short
answer to this argument is that it is foreclosed by the fact that we have
previously extended qualified immunity to officials who were alleged to have
violated the Fourth Amendment.” Id. Thus, even if an officer is found to have
acted unlawfully, “Anderson still operates to grant officers immunity for
reasonable mistakes as to the legality of their actions.” Saucier v. Katz, 533
U.S. 194, 206 (2001). “This test imposes an objective standard of
reasonableness.” Mlodzinski, 648 F.3d at 33; see Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).

      The plaintiff argues that, during his third meeting with Myrdek, which
began at 2:45 to 3:00 p.m., “Myrdek did not have any objectively reasonable
basis to confine [him] to his office,” and that Myrdek’s “only ‘purpose’ was to
unlawfully compel [him] to submit to a no-notice interview without the union
counsel he was legally entitled to.” The plaintiff asserts that he “simply refused
to answer questions at 3 p.m. without his union representative being present
which is lawful and appropriate behavior under the defendants’ own rules.”
(Emphasis omitted.) Myrdek argues that the plaintiff “provides no legal
support for his argument that [he] had an ‘absolute right’ to have the union
attorney, as opposed to any other union representative, present at the
administrative interview.” Myrdek asserts that “[b]ased on the information
available to [him] at the time, he reasonably believed that the interview should
not be delayed.”



                                        13
       The state police “Professional Standards of Conduct” (standards) set forth
the procedures applicable to “internal affairs investigations concerning
allegations of personnel misconduct.” Pursuant to section 26-E.4.5, C,
“Division Member Rights and Responsibilities”:

      1. Division members under administrative investigation shall have
         the right to association or union representation during an
         investigative interview, if so requested by the member, whenever
         the member reasonably believes that the interview may result in
         disciplinary action against him. The association or union
         representative’s role at the investigative interview is to consult
         with the Division member. The association or union
         representative shall not participate in the interview in any way
         unless requested to do so by the investigator and shall not
         convert the interview into an adversary proceeding. The
         Division is free to insist upon hearing the Division member’s
         own account of the matter(s) under investigation.

      2. The Division member is solely responsible for making
         arrangements to have an association or union representative in
         attendance at the interview. Under no circumstances will the
         investigation be compromised or unreasonably delayed because
         of the Division member’s, association’s or union’s failure to
         obtain or provide an association or union representative in a
         timely manner.

Thus, under section 26-E.4.5, C of the standards, assuming that the plaintiff
reasonably believed that the interview with Myrdek might result in disciplinary
action against him, the plaintiff had a right to “association or union
representation” during the investigative interview. However, there is no
mention in the standards of a right to specific representation by an individual
of the member’s choosing, nor does the plaintiff cite any authority in support of
his position that he was legally entitled to have the union attorney present at
his interview. Cf. Appeal of Exeter Police Assoc., 154 N.H. 61, 64 (2006)
(declining to express opinion on whether New Hampshire law affords an
employee the right to request the union representative of one’s choice); see
Anderson, 483 U.S. at 639 (explaining that application of qualified immunity
“turns on the objective legal reasonableness of the action assessed in light of
the legal rules that were clearly established at the time it was taken”)
(quotations and citations omitted).

       Further, the policy expressly provides that the investigation not be
“compromised or unreasonably delayed” because of the member’s failure to
obtain “an association or union representative in a timely manner.” At the time
of the third meeting with the plaintiff on November 28, Myrdek was: aware of
the events that had taken place in September regarding the plaintiff’s actions


                                       14
involving the Meredith Police Department; aware of events that had resulted in
the plaintiff being placed on administrative leave in October; aware that two
days before, the plaintiff’s wife had called the Laconia Police Department after
arguing with her husband, requesting additional patrols by her home; aware
that the plaintiff’s wife had expressed concern that the plaintiff had been in her
home in violation of a temporary order; and aware that the plaintiff had told his
wife he knew where her attorney lived. Based upon the facts known to him at
the time, it was objectively reasonable for Myrdek to conclude that insisting
that the investigatory interview take place that day, and that the plaintiff
arrange for union representation other than Donchess, did not violate the
plaintiff’s rights.

        The plaintiff further argues that “any reasonable officer in Myrdek’s
position . . . would have recognized that he had no reasonable, lawful basis to
compel [him] to participate in a Garrity internal investigatory interview contrary
to . . . his right to resign his employment and leave.” We disagree. When
Myrdek informed the plaintiff that the investigatory interview was going to take
place that day, the plaintiff became enraged and tried to hand Myrdek a
resignation letter. When Myrdek refused to accept it, the plaintiff responded,
“Well, F you . . . I’m leaving, I quit.” Myrdek testified that he didn’t accept the
plaintiff’s resignation “because [he] felt that in [the plaintiff’s] state of rage that
he . . . seemed to be . . . going out of control, and [he] didn’t think that [the
plaintiff] was at that point making a rational decision.” Faced with the fact
that the plaintiff’s behavior had rapidly escalated to an enraged state, it was
objectively reasonable for Myrdek to consider the plaintiff’s offer to resign as
not the product of a rational act.

      We reject the plaintiff’s contention that prior to 3 p.m. Myrdek was not
acting as a “police officer,” but rather “was acting solely in his capacity as the
employer.” Such a characterization ignores that, at all times relevant to the
issues before us, both Myrdek and the plaintiff were armed, on-duty law
enforcement officers, a factor that necessarily informed Myrdek’s actions. For
example, explaining why he declined to accept the plaintiff’s offer to hand over
his gun during the “very quick” third meeting in his office, Myrdek testified:

      [I was] concerned about . . . taking . . . [the plaintiff’s] weapon
      away from him. But I was contemplating maybe just disarming
      that weapon by just removing the magazine, which would make the
      weapon unserviceable. In other words, you couldn’t fire the
      weapon if I had just removed the magazine. And I was
      contemplating, at what point do I do this? Is this going to excite
      him even more? Will I be able to calm him down? So I was going
      through a number of scenarios that I was trying to determine what
      to do.

      ....


                                          15
      I had concerns the entire time as to what point do I try to remove
      that weapon from him without exciting him any further? And
      trying to calm him down at the same time. And I was trying to
      balance out how to do that and when to do that.

“The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments – in circumstances
that are tense, uncertain, and rapidly evolving[.]” Graham v. Connor, 490 U.S.
386, 396-97 (1989). An officer who makes “a reasonable judgment call” is
entitled to qualified immunity. Buchanan v. Maine, 469 F.3d 158, 170 (1st Cir.
2006); see Saucier, 533 U.S. at 205 (cautioning against “the 20/20 vision of
hindsight in favor of deference to the judgment of reasonable officers on the
scene” (quotation omitted)).

       We conclude that an objectively reasonable officer could have believed
that refusing to postpone the plaintiff’s investigatory interview and refusing to
accept the plaintiff’s resignation were lawful. Thus, “even on plaintiff[’s] best
case . . . an objectively reasonable officer could have concluded (even
mistakenly) that his . . . conduct did not violate [the plaintiff’s] rights.”
Mlodzinski, 648 F.3d at 28. Accordingly, we hold that Myrdek was entitled to
qualified immunity.

       The plaintiff further argues that the trial court erroneously concluded
that he was not entitled to a jury trial on his section 1983 claim. However,
given our conclusion that the trial court correctly determined that Myrdek was
entitled to qualified immunity on the section 1983 claim, we need not address
this argument.

VI. Sovereign Immunity

       The trial court concluded that NHDS was entitled to sovereign immunity
and Myrdek was entitled to official immunity on the false imprisonment claim.
On appeal, the plaintiff does not challenge the court’s ruling that Myrdek was
entitled to official immunity; therefore, we limit our review to whether the trial
court erred in granting a directed verdict in favor of NHDS on grounds of
sovereign immunity.

      The plaintiff argues that under the circumstances, his approximately
two-hour detention at state police headquarters was unreasonable because the
defendants did not initiate an Involuntary Emergency Admission (IEA) process,
and “the defendants created their own alleged ‘caretaker role’ and then tried to
get out of it.” NHDS argues that the record supports the trial court’s
conclusion that the officers acted within the scope of their employment and
reasonably believed that their acts were lawful.




                                        16
      “The doctrine of sovereign immunity is deeply entrenched in this
jurisdiction.” Opinion of the Justices, 126 N.H. 554, 557 (1985) (quotation
omitted). “Sovereign immunity is a jurisdictional question not to be waived by
conduct or undermined by estoppel.” LaRoche, 134 N.H. at 566 (quotation
omitted). It is not a defense which must be affirmatively pled. Id. As noted
above, sovereign immunity is a question of law which we review de novo.

      In enacting RSA chapter 541-B, the legislature waived the State’s
sovereign immunity, subject to several exceptions. One such exception is
contained in RSA 541-B:19, I(d) (2007), which provides that the State has
immunity from

      [a]ny claim arising out of an intentional tort, including . . . false
      imprisonment . . . provided that the employee whose conduct gives
      rise to the claim reasonably believes, at the time of the acts or
      omissions complained of, that his conduct was lawful, and
      provided further that the acts complained of were within the scope
      of official duties of the employee for the state.

Thus, to establish the State’s intentional tort liability, a plaintiff must prove
that, while acting within the scope of his official duties, the offending State
employee lacked a reasonable belief in the lawfulness of his conduct. As we
have explained, “[t]o hold the State liable when the employee or official
reasonably believes that his conduct conforms to the law would in our opinion
have a chilling effect on the morale and motivation of government personnel.”
Opinion of the Justices, 126 N.H. at 564. “Given the societal importance of
maintaining vigilant government personnel, we believe that the State is not
constitutionally compelled to expose itself to liability for intentional torts
committed by government officials or employees who act under a reasonable
belief in the lawfulness of their conduct.” Id.

       The trial court concluded that “the NHDS officers acted within the scope
of their duties” under RSA 541-B:19, I(d), both “in their capacity as employers”
and “within their law enforcement capacities.” The record supports the trial
court’s conclusion and the plaintiff does not argue otherwise. Accordingly, the
statutory requirement that “the acts complained of were within the scope of
official duties of the employee for the state” is satisfied. RSA 541-B:19, I(d).

      The trial court also found that “an objective analysis compels a finding
that the NHDS officers had a reasonable basis to believe that their conduct” in
confining the plaintiff to police headquarters until the Concord police arrived
“was lawful,” based upon a reasonable concern “about the safety of the plaintiff
and others based on the plaintiff’s manifest behavior.” The plaintiff argues that
under the circumstances, the NHDS officers’ conduct was unreasonable
because they did not initiate an IEA even though they detained him. NHDS
argues that based upon the plaintiff’s conduct and demeanor, it was


                                       17
reasonable to believe that he posed an immediate danger of bodily injury to
himself and should be held in protective custody until a determination could be
made as to whether an IEA should be ordered.

      Pursuant to RSA 135-C:28, III (Supp. 2013):

      When a peace officer observes a person engaging in behavior which
      gives the peace officer reasonable suspicion to believe that the
      person may be suffering from a mental illness and probable cause
      to believe that unless the person is placed in protective custody the
      person poses an immediate danger of bodily injury to himself or
      others, the police officer may place the person in protective
      custody. Any person taken into protective custody under this
      paragraph shall be transported directly to an emergency room of a
      licensed general hospital . . . for the purpose of determining if an
      involuntary emergency admission shall be ordered . . . . The
      period of protective custody shall end when a physician or
      [advanced registered nurse practitioner] makes a determination as
      to whether involuntary emergency admission shall be ordered or at
      the end of 6 hours, whichever event occurs first.

The plaintiff testified that during the approximately two-hour period when he
was held in custody by NHDS, he was “angry,” “depressed,” and “suicidal.”
According to the testimony of the officers who were with the plaintiff in
Myrdek’s office, the plaintiff threatened to take one of the officer’s guns away
from him. The plaintiff said to another officer that he was going to make that
officer shoot him. At one point, the plaintiff got “into a fighting stance in which
he . . . had one fist clenched, the other fist open.” Captain Allen Welch testified
that the plaintiff threatened to jump out the window and commit suicide,
causing Welch to draw his taser.

        Forey testified that during the struggle in the hallway, the plaintiff was
“clearly a dangerous person at that point.” She testified that she was
“concerned with his mindset and the fact that [they were] all wearing weapons,”
and “concerned for the safety of the civilians” in the building, and she testified
that “he was a threat to himself and others.” Welch, who stayed in Myrdek’s
office with the plaintiff, testified that the plaintiff “had lost control of himself
emotionally and physically” and needed to be in custody that afternoon. Welch
testified that his “sole goal in this entire incident was to get out of there with
nobody getting hurt.” Corporal Stephen Barrett, who was also in Myrdek’s
office with the plaintiff, testified that he was concerned that, if allowed to leave,
the plaintiff might harm himself or his wife. Barrett testified that, in his thirty
years as a state trooper, he had never witnessed a physical altercation between
a trooper and his superior resulting in restraint, or a fellow trooper saying that
he wanted to kill himself or wanted to be shot.



                                         18
        The policy considerations that support shielding police officers from
liability in the related context of official immunity are important and worth
repeating:

            Police officers are trusted with one of the most basic and
      necessary functions of civilized society, securing and preserving
      public safety. . . . Police officers are regularly called upon to utilize
      judgment and discretion in the performance of their duties. They
      must make decisions and take actions which have serious
      consequences and repercussions to the individuals immediately
      involved, to the public at large and to themselves. On any given
      day, they are required to employ their training, experience,
      measured judgment and prudence in a variety of volatile situations
      ....

             Further, law enforcement by its nature is susceptible to
      provoking the hostilities and hindsight second-guessing by those
      directly interacting with police as well as by the citizenry at large.
      Police officers, as frontline agents for the executive branch, are
      particularly vulnerable to lawsuits, whether the underlying police
      conduct or decision was errant or not. . . . The public simply
      cannot afford for those individuals charged with securing and
      preserving community safety to have their judgment shaded out of
      fear of subsequent lawsuits or to have their energies otherwise
      deflected by litigation, at times a lengthy and cumbersome process.

Everitt, 156 N.H. at 217-18.

       We conclude that under the circumstances, a reasonable officer would
have believed that, based upon the plaintiff’s behavior and statements, holding
the plaintiff in protective custody at police headquarters, until the
determination was made to have a neutral police department take custody, was
lawful because the plaintiff posed “an immediate danger of bodily injury to
himself or others.” Accordingly, we hold that the elements of RSA 541-B:19,
I(d) have been satisfied, and that NHDS is entitled to sovereign immunity.

                                                    Affirmed.

      DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.




                                         19
