'Malicious prosecution': Six fined for protesting outside Gov. Sununu’s home file lawsuit

NEWFIELDS — Six protesters fined $100 for picketing outside of Gov. Chris Sununu’s residence in Newfields at the height of the COVID-19 pandemic have filed a civil lawsuit against three police officers involved in issuing the citations.

The lawsuit filed in Hillsborough Superior Court South claims "retaliatory and malicious prosecution," in violation of state and federal laws, and seeks damages for emotional distress, humiliation, and fees and costs for their criminal defense.

"The individual officers detained and cited these individuals only because they were exercising their First Amendment rights in front of the governor's home," stated the lawsuit filed by attorneys Stephen T. Martin and Seth J. Hipple on behalf of six protesters.

Named as defendants in the suit are former Newfields police officers Henrick Strand and the estate of officer Kathleen O'Brien, who died in 2022, as well as state trooper Tyler Dodds. The town of Newfields and the state Department of Public Safety are also listed as they employed the officers.

The lawsuit comes after five of the six people fined — William Domenico, Samantha Morse, Jason Gerhard, William Kelley and Robert Farinelli — were found not guilty of violating the Newfields town ordinance after their trials in district court. Prosecutors dropped the case against the sixth, Christopher Maidment, who said he was covering the protest as a reporter for the New Hampshire Journal.

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What happened at protest outside Gov. Sununu's home?

The protest occurred Dec. 28, 2020, organized by the group Absolute Defiance after Newfields enacted a town ordinance banning “picketing” outside a specific home.

The ordinance came about due to increased protests outside the governor's residence, including one that attracted 70 to 90 people. That protest, occurring a few weeks prior, generated complaints from the neighborhood and was described by then-Newfields police chief Nathan Liebenow as "boisterous and disturbing."

In response, the Select Board, which includes Sununu’s brother, Michael Sununu, passed the ordinance Dec. 22 of that year with a fine of $100 for those who violate it.

Absolute Defiance advertised a candlelight vigil in Sununu’s Hemlock Court neighborhood seven days later to challenge the Newfields ordinance and protest the state-wide mask mandate.

The lawsuit states protesters were told by state police trooper Tyler Dodds and other officers Dec. 28 that they could not host a vigil as it would violate the ordinance. However, officers did tell them they could walk the length of the governor's street provided they did not "target" a specific residence by stopping.

While the protesters claimed they did what were told, police charged them for violating the town ordinance.

According to Newfields police, a total of nine people were given summonses that day and one was charged with disorderly conduct.

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Five of the six found not guilty, prosecutors drop case against sixth

When five of the six protesters who filed the suit went to trial, the lawsuit states that Dodds, the state trooper, testified in court that the protesters violated the ordinance by stopping in front of Sununu's home.

The first stop, according to the suit, occurred when police informed the protesters about the ordinance. The other two instances occurred, the suit alleges, when protesters stopped after an officer told them to "keep their voices down" and another time when one stopped to answer someone calling his name.

The lawsuit states the "Newfields Six," however, were not there when officers first instructed the group about the town ordinance. It also states the six did not stop in the other two instances, citing video evidence in one case.

Dodds in court, according to the suit, "intimated all five individuals stopped when, in fact, he had not seen any of them stop." The suit alleges Dodds was the one who provided information to the other two officers, who in turn issued the citations.

In a court order finding five of the six not guilty, Judge Polly Hall wrote prosecutors failed to prove beyond a reasonable doubt they “engaged in picketing before or about” Sununu’s home. The charge against the sixth one was dismissed, and the other people issued summonses that day were also found not guilty in their trials.

"Because probable cause was completely lacking, and because the individual officers knew it was, there is inference of malice," the lawsuit states.

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Newfields denies allegations of malicious prosecution

Newfields has responded to the lawsuit on behalf of the town, officer Henrick Strand, and the estate of officer Kathleen O'Brien.

In its answer to the complaint, the town's attorney rejected claims the six fined did not violate the town ordinance or that probable cause to issue the citations was "completely lacking."

However, they did admit that Dodds was "instrumental in providing information," leading the officers to issue the citations.

The town's lawyers also listed four "affirmative defenses," including qualified immunity that protects government officials, such as police officers, from being sued for damages unless they violated established rights that a reasonable person would know.

The state Department of Safety has yet to respond to the lawsuit.

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Protesters want damages for 'humiliation, emotional distress'

While the lawsuit claims the ordinance was pushed by Sununu's brother, the minutes of the Newfields Select Board meeting say otherwise.

According to the minutes, the ordinance was presented by then-police chief Nate Liebenow. It received support in a public Select Board meeting by then-state police Col. Nathan A. Noyes, Department of Safety Commissioner Robert L. Quinn and Matthew Broadhead, senior assistant attorney general, who provided legal advice to the town in drafting the ordinance.

While the protesters challenged the constitutionality of the ordinance in court, the judge did not issue a ruling on the argument calling it moot in light of the not guilty verdicts.

The six protesters who have filed the lawsuit have requested a jury trial. They are seeking compensatory damages for "humiliation, emotional distress, pain and suffering and damage to their reputations." In addition, they are seeking attorney costs.

This article originally appeared on Portsmouth Herald: Newfields sued by protesters fined for 'picketing' Gov. Sununu’s home