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Bar News - August 16, 2017

Opinion: Ignorance of the Law Is No Excuse (Unless You Are a Police Officer)


For over a hundred years, the New Hampshire Supreme Court has recognized the “legal maxim that everyone is presumed to know the law,” which the Court wrote in Hills v. Spear (1870) and cited in Claremont v. Truell (1985).

Unfortunately, our Supreme Court has now created a double standard that says those who are charged with enforcing the law do not need to know it, out of zeal to protect the state and immunize law enforcement from liability for illegal acts. If you are thinking that a law enforcement officer cannot possibly enforce the law properly if the officer does not know what the law is, you have seized on the conundrum that our Supreme Court has inexplicably overlooked.

Our Supreme Court fashioned this unjustifiable double standard (excusing government from ignorance of law while providing no such excuse to the governed) in Farrelly v. City of Concord (2015). On Feb. 16, Feb. 18 and Feb. 21, 2009, John Farrelly sent harassing emails to his ex-girlfriend. The ex-girlfriend complained to the Concord Police Department. The shift-supervising officer referred the complaint to another police officer, who then proceeded to interview the ex-girlfriend. The interviewing officer testified at deposition concerning whether the ex-girlfriend ever verbalized any concern that Farrelly was going to do something specific to her: “Not at this time,” the officer testified. “She didn’t know. She was afraid that something might happen, but she didn’t say that he made any specific threats or else I would have pursued criminal threatening.”

After speaking with the ex-girlfriend, the interviewing officer consulted with his shift supervisor regarding the criminal statutes that Farrelly’s alleged conduct might implicate. Among other things, the two officers compared Farrelly’s conduct, as reported by the ex-girlfriend, to the conduct prohibited by the New Hampshire’s criminal harassment statute, RSA 644:4, as reported in the 2008-2009 edition of the New Hampshire Criminal Code Annotated, published by LexisNexis.

In particular, these law enforcement officers discussed the applicability of RSA 644:4; I(b) and (f). Critically, the version of the criminal code they were using contained an annotation explaining that the New Hampshire Supreme Court had declared RSA 644:4, I(f) unconstitutionally overbroad several years earlier, in State v. Pierce (2005). Somehow, neither officer read the annotation. The interviewing officer then went to Farrelly’s home and arrested him for criminal harassment. The police caused no fewer than four criminal complaints to be brought against Farrelly, based on purported violations of an unconstitutional statute. Farrelly sued for malicious prosecution after the charges were ultimately dropped.

Multiple courts have held that it is objectively unreasonable for a police officer to enforce a law that has clearly been found unconstitutional, even if the law has not been formally repealed. See, e.g., Leonard v. Robinson (6th Circuit, 2007), Baribeau v. City of Minneapolis (8th Circuit, 2010), and Snider v. City of Cape Girardeau (8th Circuit, 2014). These decisions are premised on the well-accepted principle that reasonable police officers are presumed to know the clearly-established law governing their conduct. See, e.g., Harlow v. Fitzgerald (US Supreme Court, 1982) (“a reasonably competent public official should know the law governing his conduct”); see also United States v. Vazquez (1st Circuit, 2013) (“Law enforcement officials… are knowledgeable in assessing whether the facts render a search lawful. In this context, it is no great demand to expect that they know the law…”).

However, in Farrelly, the New Hampshire Supreme Court, per Justice Robert Lynn, held that a police officer could not be found liable if the officer subjectively believed that his conduct was lawful and that such belief was objectively reasonable. The Court determined that charging Farrelly under an unconstitutional statute somehow did not constitute reckless or wanton conduct.

The Court’s decision has transformed New Hampshire into a Kafkaesque State where the government officials charged with enforcing the law owe no duty to know the law that the governed are presumed to know. Part I, Article 8 of the New Hampshire Constitution may state that government should be “accountable,” but our Supreme Court has rendered this constitutional guarantee a fiction.

The Supreme Court’s earlier decision in Frost v. Delaney (2015), foreshadowed the royalist result of the Farrelly case. In Frost, a state bank examiner charged with enforcing the banking laws filed criminal complaints against a mortgage lender for recording a mortgage that was actually legal for a “mortgage lender” at the time of the alleged conduct. The law changed after the mortgage was recorded, making mortgage lenders only then subject to the greater restrictions applicable to “mortgage bankers.”

The Supreme Court gave the law enforcers a pass in charging the mortgage lender, saying that because the law was somehow “not clearly established” at the time of the charge, reasonably competent officials could disagree as to whether Frost was a “mortgage banker” at the time of the alleged criminal conduct. According to the bank examiner’s trial testimony, it was the “policy” of the NH Banking Department to treat mortgage bankers and mortgage lenders synonymously. Even though no written policy was ever produced to support this questionable testimony, the Supreme Court said it was reasonable for the examiner to have thought the two terms were synonymous under the law, even though they were not.

These cases reflect a pro-government bias that lacks justification and is an affront to the constitutional principle that government should be accountable. No basis exists to excuse law enforcement from accountability for being ignorant of the very laws they are supposed to know, as a foundational requirement of their jobs. Meanwhile, courts continue to hold all of us citizens to a higher standard where “ignorance of the law is no excuse.”

The court-created double standard should end. When law enforcement officers are wrong about the laws they enforce, and they improperly subject citizens to needless criminal prosecution as a result, the officers should not be immunized for their ignorance. They should be held accountable.

Chuck Douglas

Chuck Douglas is a former NH Supreme Court and NH Superior Court judge and a former US Congressman who practices law in Concord.

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