John Doe v. City of Nashua & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0062, John Doe v. City of Nashua & a.,
the court on December 4, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
plaintiff, an officer employed by the Nashua Police Department (NPD), appeals
an order of the Superior Court (Temple, J.) granting the New Hampshire
Attorney General’s Office’s (AGO) motion to dismiss the plaintiff’s complaint
seeking declaratory judgment under RSA 105:13-d (2023) and injunctive relief
to remove his name from the exculpatory evidence schedule (EES). We reverse
and remand.

I. Facts

The following facts are derived from the plaintiff’s complaint and
accompanying documentation and are assumed to be true for the purposes of
this appeal. Barufaldi v. City of Dover, 175 N.H. 424, 425 (2022). More than
13 years ago, the plaintiff, who was employed as a patrol officer for the NPD,
responded to a report of a domestic disturbance involving a married couple.
The couple was separated — the wife resided in New Hampshire and the
husband in Massachusetts — and the husband had primary custody of the
couple’s two children. The plaintiff learned that the wife struggled with
substance abuse, had conveyed her intent to leave the country with the two
children, once accidentally “set her home on fire” while impaired, and had, on
at least one occasion, left the children home alone while she went to the liquor
store. As a result, the children resided with the husband. The husband
informed the plaintiff that he filed for sole custody of the children in a
Massachusetts court and “that he had a court hearing the following day.”

The plaintiff also learned that the wife had obtained a temporary
restraining order (TRO) against the husband from the Nashua District Court
but that the husband had not yet been served. The TRO required the husband
to relinquish the children to the wife. The plaintiff served the husband with the
TRO, but he did not order the husband to relinquish custody of the child who
was present at the scene to the wife due to the plaintiff’s concern for the child’s
safety and wellbeing.

After the encounter, the plaintiff spoke with his supervisor, who advised
the plaintiff to make arrangements for the husband to have an emergency ex
parte hearing at the Nashua District Court. The plaintiff then spoke with the
husband’s attorney, who informed the plaintiff that the husband had an ex
parte hearing scheduled at a Massachusetts court the following day. At the
attorney’s request, the court rescheduled the hearing to take place that same
afternoon. The plaintiff attended the hearing and testified regarding the
information he had learned about the parties. Later that day, the husband’s
attorney informed the plaintiff that the Massachusetts court issued a
temporary ex parte order awarding the husband custody of the children. The
plaintiff documented the encounter in a written report.

The wife later filed a complaint with the NPD due to the plaintiff’s failure
to direct custody of the children to her when he served the TRO on the
husband. The NPD conducted an internal investigation that resulted in the
chief issuing a finding that the plaintiff violated the department’s standards of
conduct when he failed to enforce the TRO. The NPD also conducted a
“Captain’s Review,” which, according to the plaintiff, is “a less formal complaint
investigation than the formal Internal Affairs Investigations,” that apparently
reached the same conclusion as the chief. The plaintiff did not challenge the
Captain’s Review, although he alleges that placement on the EES was not
mentioned during the internal investigation or the Captain’s Review.

Approximately six years later, a different NPD chief informed the plaintiff
that he intended to recommend that the AGO add the plaintiff’s name to the
EES due to the plaintiff’s “sustained violation of legal procedure.” When the
plaintiff asked whether he could challenge the decision, he was informed “that
there would be no hearing and that there was nothing that he could do about
his name being added to the EES.”

In March 2018, the plaintiff requested that the AGO remove his name
from the EES. The AGO denied the plaintiff’s request because the plaintiff
failed to submit a copy of a determination overturning the finding of his
misconduct. In June 2019, a new NPD chief requested that the AGO remove
the plaintiff’s name from the EES, but the AGO denied the request.

In March 2022, the plaintiff filed the instant complaint in superior court.
In his complaint, the plaintiff sought a declaration that his conduct was not
potentially exculpatory pursuant to RSA 105:13-d and, therefore, did not
warrant inclusion on the EES, sought a permanent injunction ordering the
AGO to remove his name from the EES, and argued that his inclusion on the
EES violated his due process rights.1

1 The plaintiff filed an earlier complaint, seeking to have his name removed from the EES. The
Superior Court (Tucker, J.) dismissed the complaint. The plaintiff appealed to this court, and we
affirmed in part, vacated, and remanded. See Doe v. Attorney General, No. 2020-0501, 2022 WL
2866004, at *1 (N.H. July 21, 2022). Following that decision, the plaintiff moved to consolidate
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 The AGO moved to dismiss the March 2022 complaint, arguing that the
plaintiff’s placement on the EES is proper because his conduct is potentially
exculpatory and thus relief under RSA 105:13-d would be inappropriate. The
AGO also alleged that the plaintiff received adequate due process and that any
further process would not change the potentially exculpatory nature of his
conduct. The plaintiff objected.

The Superior Court (Temple, J.) granted the AGO’s motion to dismiss,
concluding that the complaint did not contain sufficient allegations to support
a finding that the plaintiff’s conduct is not potentially exculpatory or that his
due process rights were violated. The plaintiff moved to reconsider, which the
court denied. This appeal followed.

II. Analysis

When reviewing a trial court’s ruling on a motion to dismiss, we consider
whether the allegations in the pleadings are reasonably susceptible of a
construction that would permit recovery. N.H. Ctr. for Pub. Interest
Journalism v. N.H. Dep’t of Justice, 173 N.H. 648, 652 (2020). We assume the
pleadings to be true and construe all reasonable inferences in the light most
favorable to the plaintiff. Id. We then engage in a threshold inquiry that tests
the facts in the complaint against the applicable law. Id. We will uphold the
granting of a motion to dismiss if the facts pled do not constitute a basis for
legal relief. Barufaldi, 175 N.H. at 427.

RSA 105:13-d, I, provides the standard by which an officer would be
placed on the EES:

The [DOJ] may voluntarily maintain an [EES]. The [EES] shall
consist of a list of all current or former law enforcement officers
whose personnel information contain potentially exculpatory
evidence. Subject to the provisions of this section, the [EES] may
be maintained by the [DOJ] and shall be a public record subject to
RSA 91-A.

As relevant here, an officer may challenge his or her placement on the EES in
superior court, and “the individual’s name and corresponding information will
become public” unless “a court issues an order finding that the underlying
misconduct is not potentially exculpatory” or “[a] court issues an order finding
that the law enforcement agency erred in recommending that the officer be
placed on the [EES].” RSA 105:13-d, II(a), (d) (2023).

his two cases, and lift the stay order, which the trial court granted.
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 Recently, in Doe v. New Hampshire Attorney General (Activity Logs), 176
N.H. ____, ____ (2024), 2024 N.H. 50, ¶18, we discussed the background of the
EES and examined the meaning and scope of the term “potentially exculpatory”
within the context of RSA 105:13-d. We held that “potentially exculpatory
evidence,” pursuant to RSA 105:13-d, I, is evidence, including impeachment
evidence, that is reasonably capable of being material to guilt or to
punishment. Doe (Activity Logs), 176 N.H. at ____, 2024 N.H. 50, ¶18. In
reaching our conclusion, we explained that the considerations bearing upon
the admissibility of evidence are relevant to the determination of whether
evidence is “potentially exculpatory” such that an officer’s inclusion on the EES
is appropriate. Id. at ____, 2024 N.H. 50, ¶20.

The present appeal requires that we apply this definition of “potentially
exculpatory” to determine whether the trial court erred in concluding that the
plaintiff’s conduct warrants his inclusion on the EES. The plaintiff argues that
his conduct does not do so because it is not material to guilt or punishment.
He argues that he did not immediately enforce the TRO because he “had direct
and personal knowledge that the mother in this case was a danger to her
children” and he acted “in the best interest of the children.” Moreover, the
plaintiff contends that he did not ignore the court’s order, but, rather, sought
to resolve the matter through the court system as quickly as possible. The
plaintiff also argues that the trial court erred in failing to consider that the
conduct was not probative of his general credibility given that he did not
engage in any acts of dishonesty, see N.H. R. Ev. 608(b); that the conduct was
over ten years old, which limits its probative value, see N.H. R. Ev. 609(b); and
that he did not act unilaterally but, rather, sought guidance from a supervisor
who advised him to resolve the matter through the court system.

The AGO counters that the plaintiff’s conduct is potentially exculpatory
pursuant to RSA 105:13-d, I. The AGO argues that the plaintiff’s failure to
enforce a valid court order bears upon his credibility and could be valuable
impeachment material under certain circumstances. Specifically, the AGO
argues that the plaintiff’s conduct could be exculpatory in a case “‘where it
mattered whether [the plaintiff’s] conduct conformed to legal requirements.’”
The AGO also contends that the plaintiff’s arguments concerning whether
evidence of his conduct would be admissible are misplaced because
“admissibility does not control when assessing a prosecutor’s disclosure
obligations” under Brady v. Maryland, 373 U.S. 83 (1963), and State v. Laurie, 139 N.H. 325 (1993). See Duchesne v. Hillsborough County Attorney, 167 N.H.
774, 784 (2015). The AGO reasons that information regarding the plaintiff’s
conduct “may aid defense counsel in pursuing a particular defense strategy or
line of questioning to challenge [the plaintiff’s] testimony or to conduct
additional investigation into [his] character.”

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 We agree with the plaintiff that, pursuant to the definition set forth in
Doe, his conduct, as alleged in his complaint, is not potentially exculpatory.
See Doe (Activity Logs), 176 N.H. at ____, 2024 N.H. 50, ¶18. The plaintiff
confronted difficult circumstances. During his investigation, the plaintiff
learned that the wife struggled with substance abuse, that she had conveyed
her intent to leave the country with the two children, that she once accidentally
“set her home on fire” while impaired, and that she had, on at least one
occasion, left the children home alone while she went to the liquor store.

The plaintiff could have reasonably believed that these facts posed a
legitimate concern for the safety and welfare of the child in the father’s custody
at that time. He informed his supervisor of the situation and, to a degree,
followed his supervisor’s direction by informing the husband and his attorney
to bring the dispute to the court system on an expedited basis. In addition, the
plaintiff truthfully documented the incident and his conduct in a report and it
is undisputed that he was never dishonest when the NPD investigated him. Cf.
Laurie, 139 N.H. at 327.

Accordingly, we conclude that the plaintiff’s conduct, as alleged in his
complaint, is not “potentially exculpatory evidence” as contemplated by RSA
105:13-d, I, and that the trial court erred in granting the AGO’s motion to
dismiss. In light of the foregoing ruling, we need not address the plaintiff’s
remaining arguments. For the reasons stated above, we reverse the trial
court’s order granting the AGO’s motion to dismiss and remand for further
proceedings consistent with this order.

Reversed and remanded.

BASSETT, DONOVAN, AND COUNTWAY, JJ., concurred.

Timothy A. Gudas,
Clerk

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