qualified immunity in New Hampshire

2017In Opinion of the Justices , 117 N.H. 386 , 373 A.2d 644 (1977), we recognized, under this constitutional provision, a qualified privilege for a news reporter to refuse to disclose the confidential sources of information he utilized in preparing a series of articles that related directly to the performance of an official who faced statutory removal from office.

2017In Opinion of the Justices , 117 N.H. 386 , 373 A.2d 644 (1977), we recognized, under this constitutional provision, a qualified privilege for a news reporter to refuse to disclose the confidential sources of information he utilized in preparing a series of articles that related directly to the performance of an official who faced statutory removal from office.

2015This argument is also unavailing, however, because the plaintiff has not alleged a constitutional violation, see Porter v. City of Manchester, 151 N.H. 30, 48 (2004), and the trial court’s dismissal was not based upon the doctrine of qualified immunity.

2015This argument is also unavailing, however, because the plaintiff has not alleged a constitutional violation, see Porter v. City of Manchester, 151 N.H. 30, 48 (2004), and the trial court’s dismissal was not based upon the doctrine of qualified immunity.

2007See Pierson, 147 N.H. at 764 (“the question whether the speaker is entitled to claim the [qualified] privilege is one for the trier of fact”).

2007Rather, in light of the above-described limitations upon when a speaker is entitled to claim the privilege, we conclude that the test laid out in Pierson, 147 N.H. at 763-64 , adequately safeguards the interests of law enforcement personnel and defamation plaintiffs.

2007First, we acknowledge that some jurisdictions appear to view the speaker’s entitlement to claim a qualified privilege as a question of law, see, e.g., Bender, 644 P.2d at 504-05; Burke, 405 F.3d at 94-95 ; however, we have held that it is one of fact.

2007This is true even though the qualified privilege protects the need “to allow public officials to speak freely on matters of public importance in the exercise of their official duties.” Burke, 405 F.3d at 94 .

2016As the Supreme Court has explained, for FOIA purposes, “[i]t makes little difference whether a privilege is absolute or qualified in determining how it translates into a discrete category of documents that Congress intended to exempt from disclosure under [FOIA], Whether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to routine disclosure.” Id. at 27 (quotation omitted); see A. Michael’s Piano, Inc. v. F.T.C., 18 F.3d 138, 146 (2d Cir. 1994).

2016Outside the FOIA context, federal courts “distinguish between ‘opinion’ work product and ‘ordinary’ work product,” and they “typically afford ordinary work product only a qualified immunity, subject to a showing of substantial need and undue hardship, while requiring a hardier showing to justify the production of opinion work product.” In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007, 1014, 1015 (1st Cir. 1988); see Hickman, 329 U.S. at 511-13.

2016Opinion work product “encompass[es] *106 materials that contain the mental impressions, conclusions, opinions or legal theories of an attorney,” and ordinary work product “embraces] the residue.” In re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d at 1014 ; see Hickman, 329 U.S. at 511-13.

2016Necessarily, information that is protected from discovery under a qualified privilege is not “routinely or normally disclosed upon a showing of relevance.” Id. (quotations omitted).

2016As the Supreme Court has explained, for FOIA purposes, “[i]t makes little difference whether a privilege is absolute or qualified in determining how it translates into a discrete category of documents that Congress intended to exempt from disclosure under [FOIA], Whether its immunity from discovery is absolute or qualified, a protected document cannot be said to be subject to routine disclosure.” Id. at 27 (quotation omitted); see A. Michael’s Piano, Inc. v. F.T.C., 18 F.3d 138, 146 (2d Cir. 1994).

2015We have reviewed the plaintiff’s additional arguments and conclude that they are insufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), and warrant no further consideration, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

2015We have reviewed the plaintiff’s additional arguments and conclude that they are insufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), and warrant no further consideration, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

2015As the First Circuit stated in a qualified immunity case: “[T]his suit may go forward only if the unlawfulness of the arrest would have been apparent to an objectively reasonable officer standing in [the defendant's shoes!’ Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004) (emphasis added); see also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (“Rather, objective reasonableness turns on the facts and circumstances of each particular case.

2015We have reviewed the plaintiff’s additional arguments and conclude that they are insufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), and warrant no further consideration, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

2015We have reviewed the plaintiff’s additional arguments and conclude that they are insufficiently developed, see State v. Blackmer, 149 N.H. 47, 49 (2003), and warrant no further consideration, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

2015As the First Circuit stated in a qualified immunity case: “[T]his suit may go forward only if the unlawfulness of the arrest would have been apparent to an objectively reasonable officer standing in [the defendant's shoes!’ Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004) (emphasis added); see also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (“Rather, objective reasonableness turns on the facts and circumstances of each particular case.

2014Courts 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).

2014The 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).

2014Snelling v. City of Claremont, 155 N.H. 674, 684 (2007); see Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 525 (1st Cir. 2009). *71 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. C

2014Snelling v. City of Claremont, 155 N.H. 674, 684 (2007); see Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 525 (1st Cir. 2009). *71 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. C

2014See Maldonado, 568 F.3d at 268-69 .

2014In 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).

2014Snelling v. City of Claremont, 155 N.H. 674, 684 (2007); see Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 525 (1st Cir. 2009). *71 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. C

2014Qualified 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).

2014Snelling v. City of Claremont, 155 N.H. 674, 684 (2007); see Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 525 (1st Cir. 2009). *71 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. C

2014Qualified 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).

2014Courts 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).

2014Legal 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 “deference should be accorded to the jury’s discernible resolution of disputed factual issues,” quoting Jennings v. Jones, 499 F.3d 2, 7 (1st Cir. 2007) (emphasis and quotations omit

2005Richardson v. Chevrefils, 131 N.H. 227, 232 (1988).

2005Richardson v. Chevrefils, 131 N.H. 227, 232 (1988).

2004“As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).

2004“Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194 , 200 (2001) (quotation omitted).

2004“Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194 , 200 (2001) (quotation omitted).

2004“The inquiry into the nature of a constitutional right for the purpose of ascertaining clear establishment seeks to discover whether the right was reasonably well settled at the time of the challenged conduct.” Mihos, 358 F.3d at 109 (quotation and ellipsis omitted).

2004The Understanding of a Reasonable Official The third step in the qualified immunity analysis “requires us to analyze whether an objectively reasonable officer in [Lafond’s] position would have understood her action to violate [Porter’s] rights.” Mihos, 358 F.3d at 110 (quotation and brackets omitted).