Farrelly v. City of Concord (902 F. Supp. 2d 178, 2012)

AMENDED ORDER

LANDYA McCAFFERTY, United States Magistrate Judge.

John Farrelly has sued in eight counts, asserting both federal and state claims arising out of his arrest by Officer Eric Pichler of the Concord Police Department, and his prosecution, in 2009, for violating N.H. Rev. Stat. (“RSA”) § 644:4, 1(f), which had been ruled unconstitutional by the New Hampshire Supreme Court in 2005. Before the court are Farrelly’s motion to amend his amended complaint and defendants’ motion for summary judgment. Each motion is duly opposed. The court heard oral argument on defendants’ motion for summary judgment on July 27, 2012. For the reasons that follow, Farrelly’s motion to amend is granted, and defendants’ motion for summary judgment is granted in part and denied in part.

Motion to Amend

Farrelly moves, pursuant to Rule 15(b) of the Federal Rules of Civil Procedure, to amend his complaint. He seeks to correct three typographical errors in his factual narrative and to bring his claims into conformance with the evidence of record and certain arguments that have already been joined by the defendants in their motion for summary judgment. Specifically, he seeks to amend Counts III, VII, and VIII. Defendants object, arguing that the relevant rule of procedure is 16(b) rather than 15(b), and that Farrelly has not established the “good cause” required by Rule 16(b). Farrelly does not acknowledge the standard established in Rule 16(b), or attempt to meet it. Strictly speaking, he is probably not entitled to amend his complaint. However, defendants have addressed the relevant issues raised by Farrelly’s proposed amendments in their motion for summary judgment and so, would not be prejudiced if the court were to allow Farrelly to amend his complaint again. For that reason, Farrelly’s motion to amend is granted. That said, while the proposed amended complaint, document no. 40-1, bears the caption “Amended Complaint,” the court will refer to that document as “Second Amended Complaint,” to distinguish it from document no. 32, which is Farrelly’s first amended complaint.

Summary Judgment Standard

“To prevail on summary judgment, the moving party must show that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Markel Am. Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 29 (1st Cir. 2012) (quoting Fed.R.Civ.P. 56(a)). “The object of summary judgment is to ‘pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.’ ” Davila v. Corporación de P.R. para la Diffusión Pública, 498 F.3d 9, 12 (1st Cir.2007) (quoting Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004)). “[T]he court’s task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009) (citations and internal quotation marks omitted).

Background

Unless otherwise indicated, the following facts are undisputed.

For approximately three years, Farrelly lived with Kerri Corliss and her young daughter, Hanah. Farrelly and Corliss broke up in November of 2008. The events giving rise to this case began with e-mails Farrelly sent to Corliss about three months later, on February 16, February 18 (three e-mails), and February 21 of 2009.

In response to Farrelly’s February 16 email, titled “WHY ARE YOU SO MEAN TO HANAH?”, Corliss e-mailed the following response:

[Sjtop contacting me or I will go to the police for blackmail and harassment. My father has already warned you, and has begged me to go to the police!!! Hanah is not your child, and I will [be] and am doing everything to keep you away from her.

Answer, Ex. B (doc. no. 34-2), at 4. Farrelly responded with three e-mails on February 18 (sent at 6:06, 7:29, and 8:35 p.m.) in which he expressed his disapproval of Corliss’s new nipple piercings and his concern over what Hanah would think of them. The full text of the first e-mail is as follows:

HAPPY 30TH BIRTHDAY A DAY EARLY. I hope you like your new piercings, just wait until Hanah sees them. What were you thinking of? ? ? You are a Mother for God’s sakes.

Id. at 3. The full text of the second e-mail is as follows:

WHAT EVER KERRI. SO I HEAR EVERYONE AT THE HOSPITAL SAW YOUR NEW NIPPLES PIERCINGS. WHY HAVE YOU TURNED INTO SUCH A TRAMP? S[sic] WHAT IS HANAH GOING TO THINK OF THEM?

Id. at 4. The full text of the third e-mail is as follows:

WHY CONTACT GEORGE WITH REGARDS TO YOUR NIPPLE PIERCINGS? HE JUST CALLED ME TO ASK WHERE I HEARD ALL ABOUT THIS AND I SAID WHAT DIFFERENCE DOES IT MAKE. IT WASN’T GEORGE. WHEN YOU SHOW IT TO AS MANY PEOPLE THAT YOU SHOWED THE PICTURES TO DON’T YOU THINK THAT IT WOULD GET BACK TO ME.

SO NOW I KNOW WHERE THE TAX RETURN IS GOING. DON’T SAVE A DIME. SPEND IT ON CRAZY SHIT. WHAT’S NEXT? A TRAMP STAMP? MORE FALSE ADVERTISING.

NO WONDER YOU MOVED OUT WHEN YOU DID. YOU DIDN’T WANT ANY OF THE TAX MONEY TO BE SPENT ON PAYING YOUR DEBT OFF. DON’T WORRY THOUGH AS I AM STILL THINKING ABOUT A CIVIL CASE TO GET MY MONEY BACK FROM YOU. I HAVE ALL THE CHECKS AND ALL THE CREDIT CARD RECEIPTS. I BET A JUDGE WON’T SEE IT ALL YOUR WAY. AFTER ALL IT ALL BEING A GIFT AS YOU SAY JUST DOESN’T MAKE SENSE. WHO EVER HEARD OF A GIFT FOR A CROWN FOR YOUR TOOTH.

HAVE A[N] AWFUL LIFE AND HOPEFULLY HANAH DOESN’T GROW UP TO BE LIKE YOU.

Id. at 5.

In the early morning hours of February 21, Farrelly sent Corliss a relatively long e-mail, titled “HAPPY 30TH YOU LYING CHEATING HERPES CARRYING JEZEBEL.” Answer, Ex. B (doc. no. 34-2), at 1. In the Jezebel e-mail, Farrelly: (1) called Corliss a “little slut”; (2) threatened to show up at her birthday party and announce that she had given him herpes and had stolen $100,000 from him; and (3) described two incidents of a sexual nature involving Corliss. See id. at 1-2. In one of those descriptions, Farrelly wrote about Corliss: “strippfing] off [her] top,” id. at 1; “rubbfing] [her] $6000.00 TITS” in a man’s face, id.-, and then “invit[ing] him to play and suck on them,” id. In the other, he mentioned a man he referred to as “the love of [Corliss’s] life where [she] told him in front of everyone” that she wanted to perform an act of oral sex on him. Id. at 2.

On the morning of February 21, shortly after she received the Jezebel e-mail, Corliss went to the Concord Police Department to complain about Farrelly. She initially spoke with Lieutenant Walter Carroll, a shift superintendent. Lt. Carroll had Corliss meet with Officer Eric Pichler, who wrote, in his narrative report: “She told me that she was scared he was going to show up at her [birthday] party and hurt her or her daughter. She was very emotional and had tears in her eyes while talking with me.” Answer, Ex. A (doc. no. 34-1), at 2. At his deposition, Officer Pichler described his interview with Corliss:

Q. Now, you said that Ms. Corliss didn’t necessarily want you to arrest Mr. Farrelly. Did she tell you what she wanted you to do?

A. She told me that she was scared that he, Mr. Farrelly, kept contacting her, that his communications were upsetting her and she felt harassed and wanted the communication to stop. She wanted him out of her life.

Q. Did she say when she was scared what she [was] afraid of? Did she tell you?

A. She told me that there were several instances where Mr. Farrelly’s anger, where he got out of control, as she described it, and she felt that her, that she was in danger of being injured or being hurt. She had mentioned several times that they did get physical, not all the times that that happened were the police involved, but as far as this specific instance her main concern was that she didn’t want it to arise to that level. She felt that if he kept communicating with her and showed up at her party that something might happen and she feared for her safety and the safety of her daughter.

Q. But did Ms. Corliss ever verbalize to you any specific concern that she had for Mr. Farrelly that he was going to do something specific to her?

A. Not at this time. 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.

Defs.’ Mot. Summ. J., Moskowitz Aff., Ex. 1, Pichler Dep. (doc. no. 36-3), at 53-54, 57. Officer Pichler also took a written statement from Corliss that says, in its entirety:

I lived w/ John Farrelly for three years. [0]n Thanksgiving I had to call the police for his aggressive behavior. I moved out the next day. [H]is phone calls and emails to my friends and family have been ongoing. I have asked him to stop several times, he has failed to do so. His emails are harassing, and say inappropriate things about me, my friends and family.

Id. at 4. In addition to giving a statement, Corliss provided Officer Pichler with both the e-mails she had received from Farrelly and e-mails exchanged between Farrelly and her father, James Cross. It is undisputed that Cross is a retired Concord police officer.

After speaking with Corliss, Officer Pichler consulted with Lt. Carroll. Among other things, the two officers compared Farrelly’s conduct, as reported by Corliss, to the conduct prohibited by New Hampshire’s harassment statute, RSA 644:4, as reported in the 2008-2009 edition of the New Hampshire Criminal Code Annotated published by LexisNexis. In particular, they discussed the applicability of RSA 644:4, 1(b) and (f). In the version of the criminal code they were using, under the heading “Notes to Decisions,” the section on RSA 644:4 includes an annotation indicating that RSA 644:4, 1(f) had been declared unconstitutional by the New Hampshire Supreme Court in State v. Pierce, 152 N.H. 790, 887 A.2d 132 (2005). Neither officer took notice of the annotation.

Shortly after noon on February 21, Officer Pichler went to Farrelly’s residence, to get his side of the story. When Officer Pichler arrived, accompanied by another officer, Farrelly said that he knew why the officers were there, explained that he was intoxicated when he sent the Jezebel email, and then apologized for sending it. Farrelly also admitted that he had received Corliss’s e-mail asking him to stop contacting her, and “that his language was pretty vulgar in the e-mails,” Pichler Dep. (doc. no. 36-3), at 84. At his deposition, Officer Pichler testified that when he spoke with Farrelly, Farrelly did not “say or do anything ... that suggested he was a threat to Ms. Corliss’s safety.” Id. at 50. Officer Pichler also testified that he did not determine that Farrelly “presented a credible present threat to [Corliss’s] safety.” Id. at 51.

Officer Pichler then arrested Farrelly, without a warrant, for criminal harassment. He made a warrantless arrest because he thought he was permitted to do so by RSA 594:10, 1(b), based on his belief that Farrelly had committed domestic abuse, as defined in RSA 173-B:1,1, within the previous twelve hours.

At his deposition, Farrelly testified that as the two officers were escorting him down the stairs of his residence, Officer Pichler told him: “This is what you get for fucking with a 30-year veteran of the Concord PD.” Pl.’s Obj., Farrelly Dep. (doc. no. 38-6), at 4. Defendants have produced evidence that Pichler said no such thing, and that he did not learn, until after this action was filed, that Corliss’s father had once been a Concord police officer. See Pichler Dep. (doc. no. 36-3), at 102-03. The record also includes evidence that Lt. Carroll had worked with Corliss’s father for approximately twenty years, and that he was acquainted with Corliss herself. See Defs.’ Mot. Summ. J., Moskowitz Aff., Ex. 2, Carroll Dep. (doc. no. 36-4), at 8-12.

Three days after Farrelly was arrested, four criminal complaints were sworn out against him, three for the e-mails he sent on February 18 and one for the Jezebel email. Officer Pichler and Lt. Carroll worked together to draft the complaints. Each complaint charged Farrelly with the offense of harassment, in violation of RSA 644:4, based on allegations that Farrelly did

PURPOSELY communicate through email with a purpose to annoy another, to wit, Kerri Corliss, in that the defendant sent Corliss an e-mail after she previously notified him on 02/17/2009 at 0806 not to contact her for any reason or she would call the police, the communication being not for a lawful purpose.

Answer, Ex. D (doc. no. 34-4), at 1. That charge closely tracks the language of the provision declared unconstitutional in Pierce, under which “[a] person is guilty of a misdemeanor” when he or she

[w]ith the purpose to annoy or alarm another, having been previously notified that the recipient does not desire further communication, communicates with such person, when the communication is not for a lawful purpose or constitutionally protected.

RSA 644:4, 1(f). The charges against Farrelly were dropped before trial, due to the unconstitutionality of RSA 644:4,1(f).

Farrelly has sued in eight counts. By means of 42 U.S.C. § 1983, he claims that defendants violated his federal constitutional rights to: (1) due process (Count I); freedom of speech (Count II); and (2) freedom from unreasonable seizure (Count III). He also uses § 1983 to bring a claim titled “Failure to Supervise Prosecutorial Function” against the City of Concord (Count VII). In addition, Farrelly asserts a claim under the New Hampshire Constitution (Count VI), and claims under the common law of New Hampshire for: (1) malicious prosecution (Count IV); (2) false imprisonment (Count V); and (3) negligence (Count VIII).

Discussion

Defendants move for summary judgment and advance the following arguments: (1) the entire action is barred by RSA 594:13, because Farrelly’s arrest was lawful, due to the existence of probable cause to arrest him for violating RSA 644:4, 1(b), under which it is a misdemean- or for a person to “[m]ake[ ] repeated communications at extremely inconvenient hours or in offensively coarse language with a purpose to annoy or alarm another”; (2) defendants Pichler and Carroll are protected by qualified immunity, which entitles them to summary judgment on Counts I, II, and III; (3) the City of Concord (“City”) is protected by “municipal immunity,” which entitles it to summary judgment on Counts I, II, III, and VII; (4) all defendants are protected by statutory immunity, which entitles them to summary judgment on Counts IV, V, VI, and VIII; (5) Officer Pichler and Lt. Carroll are protected by official immunity, and the City is protected by vicarious official immunity, which entitles them to summary judgment on Counts IV, V, VI, and VIII; and (6) the City is protected by discretionary-function immunity, which entitles it to summary judgment on Count VIII. Farrelly disagrees, categorically. In the discussion that follows, the court considers each of Farrelly’s claims individually, beginning with his federal claims.

A. Federal Claims

Farrelly brings all of his federal claims through the mechanism of § 1983, under which

[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. “To make out a viable cause of action under section 1983, a plaintiff must allege that the defendants, while acting under color of state law, deprived him of rights secured by the Constitution or federal law.” Rojas-Velázquez v. Figueroa-Sancha, 676 F.3d 206, 209 (2012) (citing Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir.2011)). While § 1983 permits claims against individuals “acting under color of state law,” Rojas-Velázquez, 676 F.3d at 209, “a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Instead, it is when execution of a government’s policy or custom ... inflicts the injury that the government entity is responsible under § 1983.” Id.

1. Count I: Due Process

Without specifying the particular defendants) to which it applies, Count I states, in full:

The action of Defendants in arresting the Plaintiff under a criminal statute which had been previously determined to be unconstitutional violated the Plaintiffs right to the Due Process of Law.

Second Am. Compl. (doc. no. 40-1) ¶ 33.

Of the three defendants in this case, only one of them, Officer Pichler, arrested Farrelly. Farrelly does, however, allege that the decision to arrest him was “approved by Defendant Carroll on behalf of the Concord Police Department,” Second Am. Compl. ¶ 22, which at least hints at a claim for supervisory liability against Lt. Carroll, see Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir.2012) (describing the circumstances under which a claim based on supervisory liability may arise under § 1983) (citing Welch v. Ciampa, 542 F.3d 927, 937 (1st Cir.2008)). While Farrelly’s complaint and his memorandum of law are far from clear on this point, and generally speak of defendants collectively rather than in terms of individual liability, the court will presume that to the extent that Counts I, II, and III assert claims based on Farrelly’s arrest, his claims against Lt. Carroll rest on a theory of supervisory liability. But see Grajales, 682 F.3d at 47 (explaining, in the context of a § 1983 supervisory liability claim, that “the case law requires a separate assessment of the potential liability of each of the defendants”) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999)).

Defendants argue that they are entitled to summary judgment on Count I because: (1) there was probable cause to arrest Farrelly for violating RSA 644:4, 1(b), which renders his arrest lawful under RSA 594:13; (2) Officer Pichler and Lt. Carroll are entitled to qualified immunity; and (3) the City is entitled to municipal immunity. Farrelly contends that: (1) the Federal Constitution and the policies behind 42 U.S.C. § 1983 trump RSA 594:13; and (2) the defendant officers are not entitled to qualified immunity.

Defendants’ municipal-immunity argument and Farrelly’s response to it raise an issue that merits some attention. Under the rubric of “municipal immunity,” defendants argue that: (1) the City may not be held vicariously liable for the conduct of Officer Pichler and Lt. Carroll under § 1983; (2) Officer Pichler and Lt. Carroll did not violate Farrelly’s constitutional rights, which entitles the City to judgment as a matter of law on Farrelly’s Monell claim(s), ie., claim(s) that his constitutional rights were violated as a result of the execution of a municipal policy or custom; and (3) even if Officer Pichler and Lt. Carroll did violate Farrelly’s constitutional rights, Farrelly has failed to identify a municipal policy or custom the execution of which caused his injury. Farrelly responds by arguing that “[i]t is clear from the officers’ testimony that they were not informed about the three year old ruling on RSA 644:4(I)(f), or the need to consult annotations ... [and] that those failures directly led to [his] arrest.” Pl.’s Mem. of Law (doc. no. 38-1), at 14. Before addressing the merits of Farrelly’s Monell claim(s), the court must first determine which count or counts in the second amended complaint assert a claim or claims for Monell liability.

Plainly, such a claim is stated in Count VII. The City is the only defendant identified in Count VII, and the claim stated therein refers to the City’s policy or custom of failing to adequately: (1) educate its officers on recent decisions of the New Hampshire Supreme Court; and (2) train its officers in how to ascertain the constitutionality of the criminal statutes they are charged with enforcing. What is less clear is whether Monell claims are also stated in Counts I — III.

On the one hand, the only fact alleged in those counts is Farrelly’s arrest; those counts say nothing about any policy or custom instituted or maintained by the City. On the other hand, each of those counts asserts liability against defendants, not just Officer Pichler and Lt. Carroll. Farrelly’s memorandum of law in support of his objection to summary judgment includes the following heading: “Claims Against the City Under 42 U.S.C. § 1983,” which tends to suggest that Farrelly is asserting one or more Monell claims in addition to the one stated in Count VII. While the court is mindful that Farrelly is “not entitled to raise new and unadvertised theories of liability for the first time in opposition to a motion for summary judgment,” Calvi v. Knox Cnty., 470 F.3d 422, 431 (1st Cir.2006) (citing Torres-Rios v. LPS Labs., Inc., 152 F.3d 11, 15-16 (1st Cir.1998)), the court cannot say that Counts I — III, as sketchy as they are, do not at least “vaguely insinuate[ ]” Monell claims, see Calvi, 470 F.3d at 430 (affirming district court’s decision to deem waived claims introduced for the first time in opposition to summary judgment that were not “articulated, or even vaguely insinuated in [the plaintiffs] complaint”). And, in any event, by mounting a “municipal immunity” defense to Counts I — III, defendants have demonstrated their understanding that Counts I — III do assert Monell claims. Accordingly, the court follows defendants in construing Counts I-III as asserting both claims against Officer Pichler and Lt. Carroll and Monell claims against the City.

That said, further discussion of Count I is warranted. It is based on a single act, Pichler’s arresting Farrelly “under a criminal statute which had been previously determined to be unconstitutional.” Second Am. Compl. (doc. no. 40-1) ¶ 33. According to Farrelly, the arrest violated his right to due process. See id. Given the factual allegations on which it is based, Count I cannot be understood as anything other than a claim for false arrest. Ordinarily, a false-arrest claim brought pursuant to 42 U.S.C. § 1983 asserts a violation of the plaintiffs rights under the Fourth Amendment. See, e.g., Collins v. Univ. of N.H., 664 F.3d 8, 14 (1st Cir.2011); see also Acosta, 386 F.3d at 9. Indeed, Farrelly himself asserts a Fourth Amendment false-arrest claim in Count III.

So, the question becomes whether an allegedly false arrest can also support a claim under the Due Process Clause. In his objection to summary judgment, Farrelly cites Cook v. Sheldon, 41 F.3d 73 (2d Cir.1994), for the proposition that “it was a violation of [his] right to procedural due process to arrest him for vindictive reasons on an invalid charge,” Pl.’s Mem. of Law (doc. no. 38-1), at 9. But, the purported due-process violation in Cook did not involve the plaintiff’s arrest.

Rather, the court of appeals in Cook held that “[procedural due process forbids the use of legal process for a wrongful purpose,” Cook, 41 F.3d at 80 (citing Torres v. Super. of Police, 893 F.2d 404, 410 (1st Cir.1990)) (emphasis added), and drew the elements of the due-process claim from the state-law tort of malicious abuse of process, see Cook, 41 F.3d at 80 (citations omitted). As for what constitutes legal process, the defendants in Cook “clearly employed criminal process against Cook by having him arraigned on charges of illegal possession of a car with no VIN.” Id.; cf. Harrington v. City of Nashua, 610 F.3d 24, 32 (1st Cir.2010) (explaining that warrantless arrest is not legal process for purposes of Fourth Amendment malicious-prosecution claim). Here, Count I alleges an arrest under an unconstitutional statute, but makes no allegations concerning the initiation of criminal proceedings or any other use of legal process.

Based on the foregoing, two things are clear about Count I: (1) Farrelly has identified no authority for the proposition that a false arrest may serve as the factual basis for a due-process claim; and (2) he has alleged no facts to support a claim for malicious prosecution or abuse of process. Count I, therefore, does not even state a claim on which relief can be granted, see United Auto., Workers of Am. Int’l Union v. Fortuño, 633 F.3d 37, 40 (1st Cir.2011). Thus, Officer Pichler and Lt. Carroll are entitled to judgment as a matter of law on Count I. And, because the individual defendants are entitled to judgment as a matter of law, so, too, is the City entitled to judgment as a matter of law on Farrelly’s Count I Monell claim. See City of L.A. v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (“If a person has suffered no constitutional injury at the hands of the individual police offieer[s], the fact that the departmental regulations may have authorized the use of constitutionally excessive force is beside the point”).

Finally, the court notes that even if it were to construe Count I as asserting a due-process claim based not on false arrest but on malicious prosecution or abuse of process, such claims would fail as a matter of law. It is well established in this circuit “the Due Process Clause cannot serve to ground [a] federal malicious prosecution claim,” Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir.2001), and “the First Circuit does not recognize § 1983 claims based upon an alleged abuse of process,” Boyle v. Barnstable Police Dep’t, 818 F.Supp.2d 284, 316 (D.Mass.2011) (citing Faust v. Coakley, Civ. Action No. 07-11209-RWZ, 2008 WL 190769, at *4 (D.Mass. Jan. 8, 2008)); see also Santiago v. Fenton, 891 F.2d 373, 388 (1st Cir.1989).

2. Count II: First Amendment Freedom of Speech

Without specifying the particular defendants) to which it applies, Count II states, in full:

The action of Defendants in arresting Plaintiff for criminal harassment arising out of Plaintiffs e-mail communication with his former girlfriend violated his right to freedom of speech.

Second Am. Compl. (doc. no. 40-1) ¶ 34. In the memorandum of law in support of his objection to summary judgment, Farrelly offers further clarification of his First Amendment claim:

Defendants’ attempt to convert this case into a mistake over which section of the Criminal Harassment statute was utilized fails because the arrest of the Plaintiff under either (b) or (f) of that Statute would have violated his First Amendment freedom of speech. On this date, the Supreme Court in the case of U.S. v. Alvarez, 567 U.S. - (2012), (plurality opinion), has reaffirmed its prior holdings that “ ‘as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573[, 122 S.Ct. 1700, 152 L.Ed.2d 771] (2002). As a result, the Constitution ‘demands that content-based restrictions on speech be presumed invalid ... and that the Government bear the burden of showing their constitutionality.’ ” Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660[, 124 S.Ct. 2783, 159 L.Ed.2d 690] (2004). Slip opinion at 4.

In its opinion, the Court made clear that content-based restrictions on speech, even false speech, are only permitted in a few “ ‘historic and traditional categories [of expression] long familiar to the bar.’ ” Slip opinion at 4-5 (citations omitted). Accordingly it held unconstitutional a federal criminal statute which prohibited false statements about military service.

The application of the Criminal Harassment Statute against the Plaintiff in this case was likewise an unconstitutional prior restraint on his freedom of speech. Although his language and ideas were blunt and controversial, and presumably not welcomed by the recipient, they did not fall under any of the exceptions to First Amendment protected speech.

Pl.’s Mem. of Law (doc. no. 38-1), at 7-8.

Defendants argue that they are entitled to summary judgment on Count II because: (1) there was probable cause for Farrelly’s arrest, which renders the arrest lawful under RSA 594:13; (2) Officer Pichler and Lt. Carroll are entitled to qualified immunity; and (3) the City is entitled to municipal immunity from Farrelly’s Monell claim. Farrelly contends that: (1) the Federal Constitution and the policies behind 42 U.S.C. § 1983 trump RSA 594:13; (2) the defendant officers are not entitled to qualified immunity; and (3) with respect to the Monell claim in Count II, the deposition testimony of Officer Pichler and Lt. Carroll demonstrates the inadequacy of the training they were provided by the City. Defendants are entitled to the immunities they claim.

a. Qualified Immunity

Defendants argue that Officer Pichler and Lt. Carroll are entitled to qualified immunity because: (1) the facts Farrelly “allege[s] do not make out a violation of a constitutional right,” Defs.’ Mem. of Law (doc. no. 36-1), at 9; (2) “the law is not clear that the decision to arrest a suspect for harassment can violate a person’s due process, freedom of speech, or Fourth Amendment rights,” id. at 11; and (3) “Defendants Pichler and Carroll ... could not have understood that their actions would violate Plaintiffs constitutional rights,” id. at 9. Farrelly contends that Officer Pichler and Lt. Carroll are not entitled to qualified immunity because the unconstitutionality of RSA 644:4, 1(f) was clearly established by the New Hampshire Supreme Court’s decision in Pierce. While Farrelly argues that “an arrest under section (b) [of RSA 644:4, I] would have resulted in the same free speech violation as an arrest under Subsection (f),” Pl.’s Mem. of Law (doc. no. 38-1), at 11-12, he does not say how it was clearly established that an arrest under RSA 644:4,1(b) would have violated his constitutional rights, nor does he make any argument that a reasonable police officer would have known that such an arrest would have violated his constitutional rights. The court begins by outlining the relevant legal principles and then applies those principles to the facts of this case.

“[PJublic officials [are entitled] to qualified immunity from personal liability arising out of actions taken in the exercise of discretionary functions.” Glik v. Cunniffe, 655 F.3d 78, 81 (1st Cir.2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Barton v. Clancy, 632 F.3d 9, 21 (1st Cir. 2011)). Turning to the mechanics of qualified immunity, courts

apply a two-prong analysis in determining questions of qualified immunity. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009). These prongs, which may be resolved in any order, Pearson [v. Callahan], 555 U.S. [223,] 236, 129 S.Ct. 808, 172 L.Ed.2d 565 [ (2009) ], require [courts to] decide “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the time of the defendant’s alleged violation,” Maldonado, 568 F.3d at 269.

Glik, 655 F.3d at 81 (parallel citations omitted). “When a defendant moves for summary judgment on grounds of qualified immunity, the plaintiff bears the burden of showing infringement of a federal right.” Lopera v. Town of Coventry, 640 F.3d 388, 395-96 (1st Cir.2011) (citing Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir.1992)). Determining whether a constitutional right was “clearly established” involves inquiries into “(1) the clarity of the law at the time of the alleged civil rights violation, and (2) whether, given the facts of the particular case, a reasonable defendant would have understood that his conduct violated the plaintiff[’s] constitutional rights.” Glik, 655 F.3d at 81 (quoting Barton, 632 F.3d at 22; citing Maldonado, 568 F.3d at 269) (internal quotation marks omitted).

The doctrine of qualified immunity “protects all state actors except ‘the plainly incompetent [and] those who knowingly violate the law.’ ” Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir.2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Qualified immunity does not, however, “shield public officials who, from an objective standpoint, should have known that their conduct was unlawful.” Haley, 657 F.3d at 47 (quoting Pagán v. Calderón, 448 F.3d 16, 31 (1st Cir.2006); citing Davis v. Scherer, 468 U.S. 183, 193, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)).

The crux of Count II is Farrelly’s claim that defendants violated his First Amendment right to free speech by arresting him for sending three e-mails to Corliss on February 18 and one more e-mail on February 21, 2009. Rather than undertaking the complex legal analysis necessary to decide whether Farrelly has made out a First Amendment violation, the court assumes, without deciding, that Farrelly had a constitutional right to send the emails at issue, that Officer Pichler violated Farrelly’s right to free speech by arresting him for sending them, and that Lt. Carroll violated that same right by approving Farrelly’s arrest. Even so, the officers are entitled to qualified immunity because Farrelly’s right to send the e-mails in question was not clearly established at the time of his arrest.

As noted above, when determining whether a right is clearly established, for purposes of qualified immunity, the court “must consider two subsidiary issues: (a) the clarity of the law in general at the time of the alleged violation; and (b) the clarity of the law as applied to the case — in other words, whether a reasonable person in the defendant’s shoes ‘would have understood that his conduct violated the plaintiff[’s] constitutional rights.’ ” Raiche v. Pietroski, 623 F.3d 30, 38 (1st Cir.2010) (quoting Maldonado, 568 F.3d at 269). With regard to the first consideration, “[t]o determine whether the law is clear in general, [courts] must define ‘the right allegedly violated ... at the appropriate level of specificity.’ ” Raiche, 623 F.3d at 38 (quoting Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). With regard to the second consideration:

A finding of qualified immunity is warranted if “a reasonable officer could have believed his conduct was lawful.” Olmeda v. Ortíz-Quiñonez, 434 F.3d 62, 65 (1st Cir.2006). Such a finding is not warranted if “no reasonable officer could believe” that his conduct was lawful. Groh v. Ramirez, 540 U.S. 551, 564, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). Put another way, immunity will issue when “officers of reasonable competence could disagree” on the lawfulness of an action, but it will not issue if “it is obvious that no reasonably competent officer would have concluded” that the action was lawful. Malley, 475 U.S. at 342, 106 S.Ct. 1092.

Lopera, 640 F.3d at 396 (parallel citations omitted).

Here, at the time of Farrelly’s arrest, he had a right to free speech guaranteed by the First Amendment. But that defines the right too broadly. In Wilson, for example, the Supreme Court rejected the petitioner’ assertion “that any violation of the Fourth Amendment is ‘clearly established,’ since it is clearly established that the protections of the Fourth Amendment apply to the actions of police.” 526 U.S. at 615, 119 S.Ct. 1692. Rather, the court determined that “the appropriate question [in that case was] the objective inquiry whether a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful, in light of clearly established law and the information the officers possessed.” Id.; see also Raiche, 623 F.3d at 38-39 (“[T]he question may be defined specifically as whether prior existing case law or general Fourth Amendment principles gave Pietroski notice that it is unconstitutional for a police officer to exert against a person the considerable force used in this incident.”). Here, the right at issue is not the right to free speech, but the right to send the specific emails that formed the basis for Farrelly’s arrest.

To the extent that those e-mails were communications by Farrelly with a person who had notified him of her desire to receive no further communication from him, sent with the purpose to annoy or alarm, and without a lawful purpose or constitutional protection, see RSA 644:4, 1(f), Farrelly’s right to engage in such conduct was clearly established by the First Amendment and the New Hampshire Supreme Court’s decision in Pierce. Indeed, if RSA 644:4, I, proscribed only the conduct described in section 1(f), then an arrest for harassment would have violated a clearly established right, and the officers’ entitlement to qualified immunity would rise or fall on whether a reasonable officer could have believed that he or she could arrest Farrelly for sending the e-mails in question without violating his constitutional rights.

But, the harassment statute also prohibits “repeated communications ... in offensively coarse language with a purpose to annoy or alarm another.” RSA 644:4,1(b). Farrelly’s right to engage in that kind of conduct was not clearly established at the time he was arrested. To the contrary, such conduct was, obviously, prohibited by statute. Moreover, in response to an over-breadth challenge similar to the one that was successful in Pierce, the New Hampshire Supreme Court upheld RSA 644:4, 1(b) as constitutional. See State v. Gubitosi, 157 N.H. 720, 728, 958 A.2d 962 (2008). In light of Gubitosi, a reasonable officer could have believed that RSA 644:4, 1(b) was constitutional. Given the state of the law, the dispositive question is whether a reasonable officer could have believed that Farrelly engaged in conduct prohibited by that statute. See Lopera, 640 F.3d at 396. The court answers that question in the affirmative.

The court begins by noting that the statute is not especially precise, and does not define the terms “repeated communications” or “offensively coarse language.” With regard to the “repeated communications” element, a reasonable officer could conclude that four e-mails sent over the course of two and one half days, including three e-mails sent over the course of two and one half hours, were repeated communications. With regard to the “offensively coarse language” element, in the second of the February 18 e-mails, Farrelly accused Corliss of turning into a “tramp,” Answer, Ex. B. (doc. no. 34-2), at 4, and in the third one, he accused her of spending her tax return on “crazy shit,” id. at 5. Then, in the February 21 Jezebel email, Farrelly called Corliss a “little slut,” and, among other things, referred to her “$6,000 TITS.” Id. at 1. Again, a reasonable officer could conclude that the foregoing language, drawn from three of Farrelly’s e-mails, was offensively coarse.

Next, a reasonable officer could infer a purpose to annoy from: (1) Farrelly’s assertion that he had heard that everyone at Corliss’s place of employment had seen her new nipple piercings, id. at 4; (2) his rhetorical question: “WHY HAVE YOU TURNED INTO SUCH A TRAMP?”, id.; (3) his rhetorical question: “WHAT’S NEXT? A TRAMP STAMP? MORE FALSE ADVERTISING.”, id. at 5; (4) the concluding line in the third February 18 e-mail: “HAVE A[N] AWFUL LIFE AND HOPEFULLY HANAH DOESN’T GROW UP TO BE LIKE YOU”, id.; and (5) the caption of the February 21 e-mail: “HAPPY 30TH YOU LYING CHEATING HERPES CARRYING JEZEBEL,” id. at 1. While Farrelly has submitted an affidavit in which he states that when sending Corliss the four e-mails, his “intention was not to annoy or alarm her,” Pl.’s Obj., Farrelly Aff. (doc. no. 38-3) ¶ 4, what he now says about his intentions, several years after the fact, has no bearing on the reasonableness of the officers’ determination, in 2009, that Farrelly sent the e-mails at issue with an intent to annoy Corliss. In sum, a reasonable officer could have believed it was lawful to arrest Farrelly for sending those four e-mails.

To conclude, qualified immunity is intended to protect all but “the plainly incompetent [and] those who knowingly violate the law.” Haley, 657 F.3d at 47. Here, it cannot reasonably be argued that the officers knowingly violated Farrelly’s First Amendment rights by arresting him for sending the four e-mails at issue or by approving the arrest. Similarly, while the officers may have erred in determining that the conduct for which Officer Pichler arrested Farrelly was criminal, rather than protected by the First Amendment, it cannot reasonably be argued that it was plainly incompetent for the officers to make that determination. Thus, Officer Pichler and Lt. Carroll are entitled to qualified immunity from Farrelly’s First Amendment claim.

b. “Municipal Immunity”

While the defendant officers are entitled to qualified immunity, that does not protect the City from liability on Farrelly’s Monell claim because “it is not impossible for a municipality to be held liable for the actions of lower-level officers who are themselves entitled to qualified immunity” Estate of Bennett v. Wainwright, 548 F.3d 155, 177 (1st Cir.2008), abrogated on other grounds by Maldonado, 568 F.3d at 269, (quoting Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir.1997); citing Walker v. Waltham Hous. Auth., 44 F.3d 1042, 1047 (1st Cir.1995)); see also Kennedy v. Town of Billerica, 617 F.3d 520, 536 (1st Cir.2010) (“the Town may be liable [on a Monell claim] even if individual officers are ultimately exonerated, for instance because the officers are granted qualified immunity”). Defendants argue that the City is entitled to judgment as a matter of law on Farrelly’s First Amendment Monell claim because Officer Pichler and Lt. Carroll did not violate Farrelly’s rights under the First Amendment and because, even if they had, Farrelly has not identified any municipal policy or custom that caused the First Amendment violation he claims. While the lack of an underlying constitutional violation will scuttle a Monell claim, see Heller, 475 U.S. at 799, 106 S.Ct. 1571, it has not been.established that Officer Pichler and Lt. Carroll did not violate Farrelly’s rights under the First Amendment. Accordingly, defendants’ first argument fails.

With regard to defendants’ second argument, it is somewhat inaccurate to say that Farrelly has not identified a municipal policy or custom that caused his injury. In paragraph 31 of his second amended complaint, he alleges that the City “failed to conduct adequate training and procedures to insure that its police officers only enforced laws currently in effect.” Second Am. Compl. (doc. no. 40-1) ¶ 31. That allegation is echoed in Counts VII and VIII. Farrelly, however, makes no allegation concerning any training, or lack thereof, directed toward the application laws that were currently in effect, such as RSA 644:4,1(b).

Farrelly does not allege a policy or custom of encouraging the arrest of people for lawfully exercising their First Amendment rights. Such an allegation, however, is not necessary to state a Monell claim; “[i]n limited circumstances, a local government’s decision not to train certain employees about their duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983.” Connick v. Thompson, — U.S. -, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011). But, as the Connick Court explained, “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Id. (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (plurality opinion)). Thus,

[t]o satisfy the statute [i.e., § 1983], a municipality’s failure to train its employees in a relevant respect must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” [City of] Canton [v. Harris], 489 U.S. [378,] 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 [ (1989) ]. Only then “can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.” Id., at 389, 109 S.Ct. 1197.

Connick, 131 S.Ct. at 1359-60 (parallel citations omitted).

“Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Connick, 131 S.Ct. at 1360 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)) (internal quotation marks and brackets omitted). Accordingly,

to state a claim for municipal liability, a plaintiff must plead more than mere insufficiency of a municipality’s training program. “[A] training program must be quite deficient in order for the deliberate indifference standard to be met: the fact that training is imperfect or not in the precise form a plaintiff would prefer is insufficient to make such a showing.”

Marrero-Rodríguez v. Mun’y of San Juan, 677 F.3d 497, 503 (1st Cir.2012) (quoting Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 27 (1st Cir. 2005)). In sum, “a plaintiff who brings a section 1983 action against a municipality bears the burden of showing that, through its deliberate conduct, the municipality was the moving force behind the injury alleged.” Haley, 657 F.3d at 51 (quoting Brown, 520 U.S. at 404, 117 S.Ct. 1382; citing Monell, 436 U.S. at 694, 98 S.Ct. 2018) (internal quotation marks omitted) (emphasis in Broum).

Regarding the ways in which deliberate indifference may be established, “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick, 131 S.Ct. at 1360 (quoting Brown, 520 U.S. at 409, 117 S.Ct. 1382). However, “in a narrow range of circumstances,” Connick, 131 S.Ct. at 1361 (quoting Brown, 520 U.S. at 409, 117 S.Ct. 1382) (emphasis added), “the unconstitutional consequences of failing to train could be so patently obvious that a city could be liable under § 1983 without proof of a pre-existing pattern of violations.” Connick, 131 S.Ct. at 1361. In Canton, the Supreme Court hypothesized that a pattern of constitutional violations might not be necessary where a municipality provided its police officers with firearms but failed to train them on the constitutional limitations on the use of deadly force. See Connick, 131 S.Ct. at 1361. But, in Connick, the Court held that “[f]ailure to train prosecutors in their Brady obligations does not fall within the narrow range of Canton’s hypothesized single-incident liability.” Id. The circumstances of this case fall closer to the actual situation in Connick than to the hypothetical posited in Canton.

There are several problems with the Monell claim Farrelly asserts in Count II. The first is a logical problem. The only training deficiency Farrelly alleges is the City’s failure “to conduct adequate training and procedures to ensure that its police officers only enforced laws currently in effect.” Second Am. Compl. § 31. If Farrelly’s Fust Amendment claim were based exclusively on the uneonstitutionality of arresting him for violating RSA 644:4, 1(f), then the training he says the City should have provided its officers may have prevented his arrest. But Farrelly was arrested for sending Corliss four specific e-mails, which conduct implicated both RSA 644:4, 1(f) and RSA 644:4, 1(b). Thus, even if the City had provided all the training Farrelly says it should have, and Officer Pichler and Lt. Carroll had been informed that RSA 644:4, 1(f) was unenforceable as a result of the Pierce decision, that training would have done nothing to prevent the officers from basing a decision to arrest him on RSA 644:4,1(b).

Beyond that, Farrelly’s second amended complaint does not appear to adequately state a failure-to-train claim. Nowhere does the complaint identify a pattern of constitutional violations similar to the one he says he suffered. See Connick, 131 S.Ct. at 1360. Moreover, the complaint includes no allegations about what City officials knew, or should have known, about the alleged inadequacy of the training the City provided its police officers, nor does it allege that any City official consciously chose not to implement training he or she knew or should have known to be necessary. Then, in the face of defendants’ argument that he “failed to present a trialworthy issue that the City’s policies reflect a deliberate indifference to constitutional rights,” Defs.’ Mem. of Law (doc. no. 36-1), at 14, Farrelly has produced no evidence of any sort on that issue. Rather, he merely points to deposition testimony from Officer Pichler and Lt. Carroll in which they stated that they had not been taught about the Pierce decision or the need to consult the annotations that appear in the criminal code.

Farrelly’s failure to allege a pattern of similar constitutional violations would not be fatal to his claim if “the unconstitutional consequences of failing to train [were] patently obvious.” Connick, 131 S.Ct. at 1361. But, the exception allowing for single-incident liability on failure-to-train claims is a narrow one, see id., and is inapplicable to the circumstances of this case. Arrests in violation of the First Amendment were not a patently obvious result of the way the City taught its police officers about the Pierce decision for at least two reasons.

First, the constitutionality of Farrelly’s arrest, under the First Amendment, does not depend on the constitutionality of RSA 644:4, 1(f). His arrest violated the First Amendment only if RSA 644:4, 1(b) was also unconstitutional, either on its face or as applied to him, and Farrelly makes no allegations, and has produced no evidence, concerning the adequacy of the training the City provided its officers with regard to the enforcement of RSA 644:4, 1(b). Second, while Officer Pichler and Lt. Carroll may not have been given training in how to read the edition of the criminal code they were issued, they were issued a copy of the criminal code, which contained information on the Pierce decision, and their failure to find the Pierce annotation was hardly a foregone conclusion. But, more importantly, an arrest in violation of the First Amendment was not a necessary consequence of the officers’ failure to find the Pierce annotation in their copy of the criminal code, given the availability and applicability of RSA 644:4, 1(b). Accordingly, the failure-to-train claim Farrelly asserts does not fit within the narrow exception for claims in which a municipality’s deliberate indifference may be proven without a pattern of constitutional violations.

c. Summary

Officer Pichler and Lt. Carroll are entitled to qualified immunity from Farrelly’s First Amendment claim. Moreover, Farrelly has neither adequately alleged a Monell claim based on inadequate training nor produced evidence to create a triable issue on such claim. Accordingly, all three defendants are entitled to judgment as a matter of law on Count II.

S. Count III: Unreasonable Search and Seizure

Without specifying the particular defendants) to which it applies, Count III states, in full:

The action of Defendants in arresting Plaintiff without a warrant under a statute which had been previously determined to be unconstitutional violated the Plaintiffs right against unreasonable search and seizure.

Second Am. Compl. (doc. no. 40-1) ¶ 35. In other words, Count III is a Fourth Amendment false-arrest claim.

As stated in Farrelly’s second amended complaint, Count III includes three words not present in Count III of the amended complaint: “without a warrant.” The Fourth Amendment, however, does not prohibit warrantless searches and seizures; it prohibits “unreasonable searches and seizures.” U.S. Const, amend. IV. An arrest is reasonable, and does not violate the Fourth Amendment, if it is supported by probable cause. See Collins, 664 F.3d at 14. To be sure, “[t]he Fourth Amendment protects persons from warrantless arrest inside their homes or other places where they have a reasonable expectation of privacy.” United States v. Brown, 510 F.3d 57, 64 (1st Cir.2007) (citing Payton v. New York, 445 U.S. 573, 586-87, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Cruz Jiménez, 894 F.2d 1, 6 (1st Cir.1990)). But, even so, an exception to the warrant requirement “permits the police to arrest an individual in his home, without an arrest warrant, as long as they are lawfully on the premises ... and probable cause exists.” United States v. Winchenbach, 197 F.3d 548, 553 (1st Cir.1999) (citing Mahlberg v. Mentzer, 968 F.2d 772, 775 (8th Cir.1992); United States v. Houston, 892 F.2d 696, 701-02 (8th Cir.1989); Jones v. City of Denver, 854 F.2d 1206, 1209 (10th Cir.1988)). Because Farrelly has neither alleged that Officer Pichler was unlawfully on his premises nor produced any evidence to that effect, both of Farrelly’s theories of Fourth Amendment liability, ie., arrest without a warrant and arrest under an unconstitutional statute, turn on the existence of probable cause for his arrest.

Defendants argue that they are entitled to summary judgment on Count III because: (1) there was probable cause for Farrelly’s arrest, which renders the arrest lawful under RSA 594:13; (2) Officer Pichler and Lt. Carroll are entitled to qualified immunity; and (3) the City is entitled to municipal immunity from Farrelly’s Monell claim. Farrelly contends that: (1) the Federal Constitution and the policies behind 42 U.S.C. § 1983 trump RSA 594:13; (2) the defendant officers are not entitled to qualified immunity; and (3) the deposition testimony of Officer Pichler and Lt. Carroll demonstrates the inadequacy of the training they were provided by the City. As with Count II, defendants are entitled to the immunities they claim.

a. Qualified Immunity

The qualified-immunity question before the court is whether a reasonable police officer could have believed that there was probable cause to arrest Farrelly-

“Probable cause exists when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime.” United States v. Young, 105 F.3d 1, 6 (1st Cir.1997). Probable cause “does not require the quantum of proof necessary to convict.” United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978).

United States v. Pontoo, 666 F.3d 20, 31 (1st Cir.2011). That is, “[t]he focus is not on certitude, but, rather, on the likelihood of criminal activity.” Acosta, 386 F.3d at 9 (citing Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Winchenbach, 197 F.3d at 555). In addition,

“[t]he question of probable cause ... is an objective inquiry,” and [the court] do[es] not consider the “ ‘actual motive or thought process of the officer.’ ” Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir.2009) (internal citation omitted) (quoting Bolton v. Taylor, 367 F.3d 5, 7 (1st Cir.2004)); see also Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”). Instead of considering any subjective motive of an individual officer, “we must view the circumstances from the perspective of a reasonable person in the position of the officer.” Holder, 585 F.3d at 504.

Kenney v. Head, 670 F.3d 354, 358 (1st Cir.2012) (parallel citations omitted). Finally, “the probable cause inquiry is not necessarily based upon the offense actually invoked by the arresting officer but upon whether the facts known at the time of the arrest objectively provided probable cause to arrest.” Jones, 432 F.3d at 41 (citation omitted).

The parties’ arguments for and against qualified immunity with respect to Count III are the same arguments they advanced with respect to Count II, and need not be repeated here. In addition to the general rules governing qualified immunity discussed above, one additional legal principle comes into play:

[A] lesser showing is required for an officer to be entitled to qualified immunity from a Fourth Amendment claim based on a warrantless arrest than to establish probable cause. See Cox v. Hainey, 391 F.3d 25, 31 (1st Cir.2004). Officers are entitled to qualified immunity “so long as the presence of probable cause is at least arguable.” Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.1992) (quoting Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir.1991)).

Glik, 655 F.3d at 88.

Here, it is at least arguable that when he arrested Farrelly, Officer Pichler had information that would have allowed a reasonably prudent person to believe that Farrelly had violated RSA 644:4, 1(b). The same holds true for Lt. Carroll’s approval of the arrest. The court has already determined, in the context of Farrelly’s First Amendment claim, that a reasonable officer could have believed that Farrelly’s conduct violated RSA 644:4, 1(b). Given that determination, it necessarily follows that defendants have met the less-demanding standard for establishing the officers’ entitlement to qualified immunity from Farrelly’s Fourth Amendment claim.

b. “Municipal Immunity”

Defendants argue that the City is entitled to judgment as a matter of law on Farrelly’s Fourth Amendment Monell claim because Officer Pichler and Lt. Carroll did not violate Farrelly’s rights under the Fourth Amendment and because, even if they had, Farrelly has not identified any municipal policy or custom that would have caused the Fourth Amendment violation he claims. The City is entitled to judgment as a matter of law on the Monell claim asserted in Count III for the same reasons that support judgment as a matter of law on the Monell claim asserted in Count II.

c. Summary

Officer Pichler and Lt. Carroll are entitled qualified immunity from Farrelly’s Fourth Amendment claim. Farrelly has failed to adequate allege a Fourth Amendment Monell claim. Accordingly, all three defendants are entitled to judgment as a matter of law on Count III.

A Count VII: Failure to Supervise ProsecutoHal Function

In Count VII, which names the City as the defendant, Farrelly claims:

The action of Defendant Concord in failing to educate the individual Defendants in regard to a decision of the New Hampshire Supreme Court declaring a section of the Criminal Harassment Statute unconstitutional more than three years prior to Plaintiffs arrest, and in failing to train the Defendants in the need to consult New Hampshire Supreme Court annotations contained in the New Hampshire Criminal Code Annotated when enforcing a criminal statute, resulted in the individual Defendants causing the Plaintiffs illegal arrest.

Second Am. Compl. (doc. no. 40-1) ¶42. Count VII is coterminous with the Monell claims asserted in Counts II and III. Thus, the City is entitled to judgment as a matter of law on Count VII for the same reasons that support judgment as a matter of law for the City on Counts II and III.

B. State Claims

1. Count IV: Malicious Prosecution In Count IV, without identifying any particular defendant(s) to which the claim stated therein applies, Farrelly asserts that defendants are liable for malicious prosecution, under the common law of New Hampshire, because they prosecuted him with malice, but without probable cause, and the prosecution was terminated in his favor.

Defendants argue that they are entitled to summary judgment on Count IV because: (1) there was probable cause for Farrelly’s arrest, which renders the arrest lawful under RSA 594:13; (2) they are entitled to immunity under RSA 507~B:5; and (3) the defendant officers are entitled to official immunity, while the City is entitled to vicarious official immunity. Farrelly contends that defendants are not entitled to any of the immunities they claim. Defendants’ third argument, based on official immunity,