By BEA LEWIS, for THE LACONIA DAILY SUN
CONCORD — A judge is weighing whether to scuttle a lawsuit alleging Belknap County failed to properly supervise a rogue deputy sheriff allowing him to violate an inmate's civil rights and intentionally inflict emotional distress.
The plaintiff, referred to as Jane Doe to shield her identity, alleges that in 2013, then Deputy Ernest "Justin" Blanchette allowed her and her fiancée to have sex while he was transporting at least one of them to court as an inmate, if he could watch them do so.
The woman also makes claims for intentional infliction of emotional distress against Blanchette and alleges that the former deputy who has since been stripped of certification to serve as a police officer, both individually and in his official capacity violated her due process rights by victimizing her while acting under "the color of law."
During an Oct. 28 hearing in Merrimack County Superior Court, attorney Corey Belobrow of Concord, argued that the case should be thrown out as Doe failed to identify a policy, custom or procedure as the moving force for the acts alleged.
The county can't be held liable for the alleged harm, since it did not act intentionally toward her, and Blanchette's purported conduct was not within the scope of his employment, so the county, as his employer, isn't responsible.
In general, statutory and common law immunities often times bar – or prevent – civil lawsuits from going forward against government entities including counties, cities, towns, and school districts among others. Various immunities have been created by the Legislature and the courts to benefit governmental entities and the public.
Private entities and the state remain liable for such suits, but municipal entities are given a free pass with some exceptions.
Meanwhile, Doe's lawyer, Richard Lehmann of Concord, has asked the judge to allow the complaint to be amended, as he is still working to ferret out the facts of the case.
Dismissal is premature, Lehmann said, claiming that the county was on notice of at least two instances of prior questionable conduct by Blanchette. If the case is not allowed to advance, the discovery process can't continue and the plaintiff "has no ability to show how pervasive or obvious this kind of conduct was and how outrageous was the county's lack of action taken in response."
In new pleadings, Lehmann claims the county had "completely inadequate controls" to ensure that deputies transporting inmates were not able to engage in misconduct. He charges the county did not track the time it took for deputies to take inmates from the jail to various courts or medical appointments. He further alleges that the county didn't have any system in place to make sure that deputies did not become "improperly familiar" with inmates they transported, or was there a system in place to prevent deputies from arranging the schedule in such a way so as to move specific, individual inmates, an excessive number of times.
While there are video cameras in many of the Sheriff's Departments vehicles, Lehmann says it doesn't appear that the county ever engaged in any regular use or review of the video footage to prevent deputies or inmates from engaging in misconduct.
"These failures constituted deliberate indifference to the well being and rights of inmates and the duty to ensure that deputy sheriffs did not engage in harmful conduct," Lehmann wrote.
In arguing for dismissal, Belobrow maintains that Belknap County is shielded by discretionary function immunity. The New Hampshire Supreme Court has held that when the particular conduct that caused injury is characterized by a high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities should remain immune from liability.
While the suit charges that the county didn't supervise Blanchette, the plaintiff fails to offer a single fact in support of that claim, Belobrow says. The county is also protected from a negligent supervision claim, according to Belobrow as the allegations don't directly arise from the use of a motor vehicle or premises.
But Lehmann counters that even if the county's municipal immunity defense falls within state law, the statute is barred by the state Constitution. Given the facts in this case, an inmate could maintain a claim for intentional infliction of emotional distress or negligent supervision against the state. It is unconstitutional to preclude the plaintiff from bringing the same claim against the county, merely because the inmate was being transported by a deputy sheriff rather than a state trooper. It would amount to an unconstitutional restriction of Doe's right to equal protection under the law for her claim against the county to be barred, her attorney asserts.
He discounts the county's belief that the vehicle acted merely as the location of the alleged injury and that there isn't the needed nexus between the county's ownership, occupation, maintenance or operation of its motor vehicles or premises, to create liability.
Lehmann maintains the use of the vehicle, Doe being transported in that vehicle and the fact that sexual conduct occurred in it during transports, all distinguish the facts of this complaint from the immunity law cited by Belobrow.
The county also asserts that the plaintiff has not pleaded enough facts to show that Blanchette's acts were not done with the purpose to serve his employer. For the county to be liable, Lehmann argues Blanchette's actions must only be "actuated at least in part, by a purpose to serve the employer.''
Lehmann says his client should have the chance to try and find out what the disgraced deputy was thinking when he committed the acts alleged. So far, Lehmann has not completed the discovery process or had the chance to question Blanchette under oath.
Trying to take a deposition of Blanchette at this time is "unlikely to be fruitful" Lehmann wrote, as his conviction for raping an inmate he was transporting to the state prison for women is under appeal. Now serving his sentence in an out-of-state prison, Blanchette is expected to invoke his Fifth Amendment right to remain silent when questioned.
The court shouldn't dismiss the case until the plaintiff has a reasonable opportunity to learn the very facts the county asserts that the plaintiff must allege in the complaint, Lehmann argues.