Holder v. Town of Sandown, et al

Filing 920091029

Opinion

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var WPFootnote1 = '  Of the Seventh Circuit, sitting by designation.\
'

var WPFootnote2 = '  Mr. Holder’s statement and affidavit do not establish with\
perfect clarity that he admitted to Officer Morrow that he had\
pushed Ms. Holder, and the record does not contain an affidavit\
from Officer Morrow. However, at the summary judgment hearing, Mr.\
Holder’s counsel conceded that Mr. Holder had told Officer Morrow\
that he pushed Ms. Holder after she pushed him.\
'

var WPFootnote3 = '  New Hampshire defines simple assault as follows:\
\
                   631:2-a Simple Assault.\
\
                    I. A person is guilty of simple assault if he:\
\
                        (a) Purposely or knowingly causes bodily injury or\
unprivileged physical contact to another; or\
 \
                        (b) Recklessly causes bodily injury to another; or\
 \
                        (c) Negligently causes bodily injury to another by\
means of a deadly weapon.\
 \
                   II. Simple assault is a misdemeanor unless committed\
in a fight entered into by mutual consent, in which\
case it is a violation.\
 \
See also In re Nathan L., 776 A.2d 1277, 1282 (N.H. 2001).\
'

var WPFootnote4 = '  Mr. Holder’s complaint made reference to the Sixth\
Amendment right to compulsory process and notice about the nature\
and cause of the accusation against him, R.1 at 18, but, when asked\
by the district court to clarify the bases of his federal claims,\
Mr. Holder’s counsel made no reference to the Sixth Amendment. \
R.29 at 2-5. In any case, such a claim is not before us in this\
appeal.\
'

var WPFootnote5 = '  Mr. Holder’s reliance on several cases from other circuits\
is unavailing. In Hebron v. Touhy, 18 F.3d 421 (7th Cir. 1994),\
the Seventh Circuit said that police could not rely solely on\
allegations of tenants that they had been deprived of water by the\
landlord because the officers knew at the time that the tenants\
were being evicted by the landlord. Under those circumstances,\
said the court, the officers should have, and did, investigate\
further. Id. 422-23. Notably, the Seventh Circuit also has made\
it clear that the officer need not go beyond what he already knows\
to decide whether an affirmative defense applies. Hodgkins ex rel.\
Hodgkins v. Peterson, 355 F.3d 1048, 1061 (7th Cir. 2004). As we\
have noted in the text, here the officers had no specific reason to\
doubt the word of Ms. Holder. Romero v. Fay, 45 F.3d 1472, 1476-77\
(10th Cir. 1995), emphasizes the need for a reasonable assessment\
of all the circumstances by the arresting officer but does not\
address the particular circumstances facing Officer Morrow in this\
case.\
'

var WPFootnote6 = '  The Supreme Court also observed that “linking Fourth\
Amendment protections to state law would cause them to ‘vary from\
place to place and from time to time.’” Virginia v. Moore, ___\
U.S. ___, 128 S. Ct. 1598, 1607 (2008) (quoting Whren v. United\
States, 517 U.S. 806, 815 (1996)).\
'

var WPFootnote7 = '  See also United States v. Humbert, Nos. 05-1492, 07-3368,\
2009 WL 1911007, at *3 (3d Cir. July 2, 2009) (noting that, even if\
defendant’s DNA were obtained in violation of Pennsylvania law,\
such conduct would not constitute a Fourth Amendment violation),\
petition for cert. filed (U.S. Sept. 29, 2009) (No. 09-6824).\
'

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