N. v. Rogan

Filing 32

ORDER denying 14 Motion for Summary Judgment. The parties shall file a joint mediation statement on or before April 3, 2017, in which the parties state whether mediation has been held or has been scheduled. So Ordered by Judge Joseph A. DiClerico, Jr.(gla) (Additional attachment(s) added on 3/8/2017: # 1 Opinion with corrected Opinion No.) (gla).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

R.N. b/n/f of P.N.
and R.N. individually
v.

Civil No. 15-cv-420-JD
Opinion 2017 DNH 044
(CORRECTED OPINION NO.)

Geoffrey Rogan

O R D E R
R.N. brings suit on behalf of his son, P.N., and himself,
alleging federal and state claims that arose from an incident in
Merrimack, New Hampshire, in October of 2014.

During the

incident, New Hampshire State Trooper, Geoffrey Rogan, while off
duty, intervened to stop P.N., who was wearing a costume, from
interacting with cars near a day care center.

Rogan moves for

summary judgment, and R.N. objects.
Standard of Review
Summary judgment is appropriate when the moving party
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
case.”

Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.

2015).

Reasonable inferences are taken in the light most

favorable to the nonmoving party, but unsupported speculation
and evidence that “is less than significantly probative” are not
sufficient to avoid summary judgment.

Planadeball v. Wyndham

Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015)
(internal quotation marks omitted).
Background
In early October of 2014, P.N. and his father, R.N. drove
to Merrimack, New Hampshire, to purchase a Halloween costume for
P.N.

P.N. chose a rubber pig head mask that covered his head

down to his shoulders.

On the back, the pig head mask was

colored blood red to suggest a severed pig’s head.

P.N. also

chose werewolf gloves that extended up his arms.
P.N. was twelve years old in October of 2014.

He was five

feet eight inches tall, without the pig head mask on his head.
The mask added several inches to his height.
After buying the costume, P.N. and R.N. drove to a
McDonald’s on the corner of Route 101A and Continental Boulevard
in Merrimack.
gloves.

P.N. was wearing his pig head mask and werewolf

When they parked, R.N. received a message on his cell

phone, so he stayed in the car to deal with the message.

R.N.

gave P.N. permission to get out of the car, although R.N. and
P.N. remember differently whether R.N. said that P.N. could
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leave the parking lot and cross the street.

P.N. went into the

McDonald’s and waved to people and pointed, wearing his pig head
mask and werewolf gloves.
P.N. left McDonald’s through a side door and crossed
Continental Boulevard to stand near a day care center.

P.N.

chose that spot to draw more attention to himself because of the
number of cars turning into the day care center.

While standing

at the day care center, P.N. waived and pointed at cars, made a
throating slitting gesture, and ran after at least one of the
cars on the street.
Rogan and his wife drove to the day care center to pick up
their daughter in their SUV.

Rogan was not on duty, was not

wearing his uniform, and did not have a jacket or other
distinctive clothing to show that he was a state trooper.
Rogan’s wife, Vanessa, was driving the SUV.

While they waited

at the traffic light at the intersection of Route 101A and
Continental Boulevard, Rogan saw someone in a costume running at
cars near the intersection, heard cars beeping at him, and saw
cars swerving around him.
When Vanessa got the green light, she turned left into the
day care center.

As she turned, P.N. jumped in front of her

car, causing her to slam on the brakes.

P.N. began to jump

around while pointing and waving at Vanessa.

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As Vanessa drove

around P.N., he came to her window, but Vanessa drove away from
him.

After they were parked, P.N. pointed at them and began to

walk or jog toward the car.
Rogan told Vanessa to call the police and got out of the
car.

With the mask, P.N. appeared to be about six feet tall.

Because of his odd and harassing behavior, Rogan thought P.N.
was a teen ager or a young adult either under the influence of
drugs or alcohol or experiencing a mental health episode.

Rogan

also thought P.N. might be intending to commit a crime while his
identity was concealed with the mask.
When Rogan began to get out of the car, P.N. quickly
changed direction and ran away, still wearing his mask and
gloves.

Rogan remembers that he yelled “Stop, State Police,”

but P.N. did not stop or slow down.1
yelled “Hey you, kid, get over here.”

P.N. remembers that Rogan
P.N. remembers being

afraid of Rogan and that he intended to run across the street
and back to McDonald’s where his father had parked.

As P.N.

neared Continental Boulevard and was about to run across,
despite the traffic, Rogan caught him and brought him to the
ground.

P.N. sustained scrapes on his arm, knee, and lower back

during the fall.

Neither P.N. nor Vanessa heard Rogan yell “Stop, State
Police.”
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Rogan remembers that P.N. was flopping around on the ground
with the mask twisted on his face and that Rogan identified
himself as a state trooper.

P.N. remembers that Rogan said, “in

essence, ‘What the [expletive] do you think you’re doing here?’”
Rogan put P.N.’s arm behind his back and searched him for
weapons.

Rogan did not know that P.N. was a child until he

removed the mask.

He then asked P.N. what he was doing and

where his parents were.
R.N. arrived in his car and asked Rogan if there was a
problem.

Rogan showed R.N. his state trooper identification and

asked R.N. to sit down next to P.N.

R.N. remembers that Rogan

then said, “Yeah, there’s a [expletive] problem,” paced around
talking about “crazy shit that’s going on in the world,” and
told them that his daughter went to that day care center.
thought that Rogan was acting as if he were intoxicated.

R.N.
After

reporting the incident to his supervisor, Rogan told R.N. and
P.N. that they could go but that R.N. could be charged with
contributing to the delinquency of a minor.2

R.N. also remembers that Rogan yelled at a woman, Vanessa,
to get back into the day care center and yelled at P.N. to take
off the werewolf gloves. Rogan denies that he was swearing and
remembers that P.N. said he was sorry for his behavior and that
R.N. was apologetic about his son’s behavior.
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When they got back to the car, R.N. took a photo of an
abrasion on P.N.’s elbow.

They then drove to the Nashua police

station and talked with an officer there who told them that the
incident occurred in Merrimack.
police station.

They drove to the Merrimack

A police officer there saw that P.N. had a

minor abrasion on his elbow with dried blood.

R.N. and his wife

filed a report of the incident with the Merrimack police.
P.N. wore the pig head mask and werewolf gloves as his
Halloween costume several weeks later.

He did not require any

further treatment for injuries and did not have any permanent
physical injury.
Discussion
R.N. on his own behalf and on behalf of P.N. brings a claim
under 42 U.S.C. § 1983 that Rogan violated their civil rights by
detaining them and by tackling P.N., which they contend was
excessive force.

R.N. also brings state claims of assault,

battery, intentional and negligent infliction of emotional
distress, and false arrest.

Rogan moves for summary judgment on

the federal claims on the grounds that he properly detained R.N.
and P.N., that his use of force was justified under the
circumstances, that P.N. has not sustained any injury that would
support a federal claim, and that he is entitled to qualified

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immunity.3

Rogan moves for summary judgment on the state claims

based on immunity defenses.
A.

Civil Rights Claims
“To make out a Fourth Amendment excessive force claim, a

plaintiff must show, as an initial matter, that there was a
seizure within the meaning of the Fourth Amendment, and then
that the seizure was unreasonable.”

Stamps v. Town of

Framingham, 813 F.3d 27, 35 (1st Cir. 2016).

Seizure occurs for

purposes of the Fourth Amendment “when a police officer has in
some way restrained the liberty of the citizen through physical
force or show of authority.”

United States v. Camacho, 661 F.3d

718, 725 (1st Cir. 2011) (internal quotation marks omitted).
“Where an officer creates conditions that are highly likely to
cause harm and unnecessarily so, and the risk so created
actually, but accidentally, causes harm, the case is not removed
from Fourth Amendment scrutiny.”

Stamps, 813 F.3d at 35.

“Qualified immunity attaches when an official’s conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”

White v.

Pauly, 137 S. Ct. 548, 551 (2017) (internal quotation marks

Although he was not on duty at the time of the incident,
Rogan does not challenge his status as a state actor for
purposes of the claim under § 1983.
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omitted).

“To avoid a qualified-immunity defense, [the

plaintiff] must show (1) that [the defendant] infracted his
federal rights and (2) that these rights were so clearly
established that a reasonable officer should have known how they
applied to the situation at hand.”

Belsito Comm’ns, Inc. v.

Decker, 845 F.3d 13, 23 (1st Cir. 2016).
To be clearly established, “existing precedent must have
placed the statutory or constitutional question beyond debate.”
White, 137 S. Ct. at 551.

In addition, the precedent must be

“particularized to the facts of the case,” that is a situation
where an officer was acting under similar circumstances and was
held to have violated the asserted constitutional right.
552.

Id. at

In the context of an officer’s use of force, the court

must look at the specific circumstances the officer faced to
determine whether precedent existed that clearly established the
force used was excessive under the Fourth Amendment.

Mullenix

v. Luna, 136 S. Ct. 305, 309-10 (2015).
Excessive force must be assessed in light of all of the
circumstances, including the severity of the suspected crime and
whether the suspect is attempting to flee from the police.
Graham v. Connor, 490 U.S. 386, 397 (1989).

Whether or not a

police officer has identified himself to a suspect before a stop
or arrest is an important consideration in determining whether

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the officer acted reasonably.

See, e.g., White, 137 S. Ct. at

552 (noting importance of police identification in investigatory
activities); Ayers v. Harrison, 650 F. App’x 709, 712-16 (11th
Cir. 2016); Pekrun v. Puente, 172 F. Supp. 3d 1039, 1044-45
(E.D. Wisc. 2016); Rawlings v. District of Columbia, 820 F.
Supp. 2d 92, 110 (D.D.C. 2011) (discussing Hundley v. District
of Columbia, 494 F.3d 1097 (D.C. Cir. 2007)); Scott v. City of
Cleveland, 555 F. Supp. 2d 890, 898-99 (N.D. Ohio 2008);
Williams v. City of New York, 2007 WL 2214390, at *10 (S.D.N.Y.
July 26, 2007); Gomez v. City of New York, 2007 WL 5210469, at
*6 (S.D.N.Y. May 28, 2007); Sutton v. Duguid, 2007 WL 1456222,
at *8 (E.D.N.Y. May 16, 2007); Vasquez v. City of Jersey City,
2006 WL 1098171, at *6 (D.N.J. Mar. 31, 2006); Johnson v. Grob,
928 F. Supp. 889, 907 (W.D. Mo. 1996).
Material factual disputes preclude summary judgment in this
case as to whether Rogan violated R.N. and P.N.’s Fourth
Amendment rights and whether Rogan is entitled to qualified
immunity.4

Although Rogan says he identified himself as a police

officer before he chased P.N., P.N. says that Rogan did not
identify himself until after the chase when P.N. was on the

Rogan’s argument that the scrapes that P.N. received when he
fell are insufficient injuries to maintain an excessive force
claim is without merit. See, e.g., Bastien v. Goddard, 279 F.3d
10, 16 (1st Cir. 2002); Long v. Abbott, 2017 WL 829145, at *19*22 (D. Me. Mar. 1, 2017).
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ground.

The parties also dispute the nature of P.N.’s actions,

including whether he was in the street, whether he was
interfering with cars and traffic, and whether he was acting in
an aggressive and threatening manner.

Rogan contends that he

told R.N. to sit down next to P.N. “to control the situation due
to R.N.’s height and build,” but it is not clear from the record
that Rogan had any need “to control the situation.”
Therefore, Rogan’s motion for summary judgment on R.N.’s
civil rights claims, Count One, is denied.
B.

State Law Claims

R.N. brings state law claims of assault, battery,
intentional and negligent infliction of emotional distress, and
false arrest.

Rogan moves for summary judgment on the grounds

that the state law claims are barred by sovereign immunity,
official immunity, and immunity based on justification under RSA
507:8-d.

R.N. contends that the immunity theories do not apply

here.
1.

Sovereign Immunity

Rogan combines the doctrines of sovereign and official
immunity, arguing that both preclude his liability for the state
law claims.

In support, Rogan contends that his actions are

immune from liability under RSA 541-B:19, I(b), (c), and (d).
Rogan acknowledges that sovereign immunity applies to the state
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but asserts, without citation to authority, that sovereign
immunity “no less provides a derivative protection to those
employees whose actions are being scrutinized, through official
immunity.”
Rogan has not shown that sovereign immunity would provide
protection to him in this case.

See Farrelly v. City of

Concord, 168 N.H. 430, 443 (2015) (discussing immunity of
municipalities from liability based on the actions of their
officials).
2.

Official immunity

“Official immunity protects individual government officials
or employees from personal liability for discretionary actions
taken by them within the course of their employment or official
duties.”

Everitt v. Gen. Elec. Co., 156 N.H. 202, 214 (2007);

see also Farrelly, 168 N.H. at 439.

Police officers are

protected by official immunity “for decisions, acts or omissions
that are:

(1) made within the scope of their official duties

while in the course of their employment; (2)discretionary,
rather than ministerial; and (3) not made in a wanton or
reckless manner.”

Id. at 19.

The factual disputes about what happened in this case,
however, preclude summary judgment based on official immunity.

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3.

Justification

Rogan briefly mentions immunity from civil liability based
on justification under RSA 507:8-d and RSA chapter 627.

The

justification defense is not sufficiently developed to allow
review.

In addition, the same disputed facts would preclude

immunity based on justification for purposes of summary
judgment.
Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 14) is denied.
Now that the motions for summary judgment have been
resolved, it behooves the parties to direct their resources
towards resolving this case before the parties and the court
spend the considerable time and resources necessary to prepare
for trial.

Although counsel previously reported that mediation

was not appropriate, the court expects the parties to mediate
before trial.

To that end, counsel shall carefully examine the

claims and defenses in this case to evaluate their viability,
the proof necessary to support them, and how they will present
those matters to a jury.
Trial is scheduled for the period beginning on May 2, 2017,
with the final pretrial conference to be held on April 13, 2017.
The parties shall file a joint mediation statement on or before
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April 3, 2017, in which the parties state whether mediation has
been held or has been scheduled.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
March 8, 2017
cc:

Matthew T. Broadhead, Esq.
Lawrence A. Vogelman, Esq.

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