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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough–northern judicial district

No. 2014-0580

JEFFREY FROST & a.

v.

MICHAEL DELANEY & a.

Argued: June 24, 2015

Opinion Issued: November 17, 2015

Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann and 

Charles G. Douglas, III on the brief, and Mr. Douglas orally), for the plaintiffs.

Joseph A. Foster, attorney general (Brian W. Buonamano, assistant 

attorney general, on the brief and orally), for defendants New Hampshire 

Banking Department, Kathleen Sheehan, and State of New Hampshire.

CONBOY, J. This appeal and cross-appeal arise out of a civil action by 

the plaintiffs, Jeffrey Frost, Frost Family, LLC (Frost Family), and 

Chretien/Tillinghast, LLC (Chretien), against Michael Delaney, individually and 

as former attorney general; the State of New Hampshire; the New Hampshire 

Banking Department (the Department); Karen Gorham, individually and as 

former assistant attorney general; Peter Hildreth, individually and as former

commissioner of the Department; Maryam Torben Desfosses, individually and 
2

as hearings examiner for the Department; and Kathleen Sheehan, individually 

and as bank examiner for the Department, for their actions in the investigation 

and prosecution of Frost for alleged violations of RSA chapter 397-A. The 

plaintiffs appeal only orders of the Superior Court (Brown, J.) granting the 

defendants’ motion for summary judgment on the plaintiffs’ 42 U.S.C. § 1983 

(2012) claim (§ 1983 claim) against Sheehan on the ground that she is entitled 

to qualified immunity, and dismissing their negligent supervision claims

against Hildreth and Desfosses on the ground that they are entitled to absolute 

prosecutorial immunity. Defendants the State of New Hampshire, the 

Department, and Sheehan cross-appeal. We affirm.

I. Background

This is the second opinion we have issued in connection with the 

prosecution of Frost for allegedly violating RSA chapter 397-A. See Frost v. 

Comm’r, N.H. Banking Dep’t, 163 N.H. 365 (2012). We begin by reviewing the 

statutory backdrop to this case and summarizing the relevant facts drawn from 

the trial court’s orders, the record, and our prior opinion.

RSA chapter 397-A governs the licensing of nondepository mortgage 

bankers and brokers. See RSA ch. 397-A (2006 & Supp. 2014). In March 

2009, RSA 397-A:3 required persons engaged in the business of making or 

brokering mortgage loans to obtain a license from the Department. RSA 397-

A:3, I (Supp. 2008) (amended 2012). RSA 397-A:4, II (2006) (amended 2009) 

exempted from licensure “[a]ny natural person making not more than 4 first 

mortgage loans within any calendar year.” Effective July 2009, the legislature 

removed the exemption for natural persons making four or fewer mortgage 

loans within a year. See RSA 397-A:4 (Supp. 2009) (amended 2011, 2012, 

2013). In addition, effective July 2009, the legislature enacted RSA 397-A:1, 

XIII-a, which provides that “‘[m]ortgage lender’ means a mortgage banker.” 

Laws 2009, 290:7.

Chretien and Frost Family are New Hampshire limited liability companies 

organized for the purpose of real estate acquisition, holding, and development. 

Frost, 163 N.H. at 368. Frost is a member and designated manager of Chretien 

and a member of Frost Family. Id. In March 2009, Chretien sold one of its 

properties to Robert Recio and his housemate in a seller-financed real estate 

transaction. See id. at 368. In late December 2009, Recio filed a complaint 

against Chretien with the Consumer Protection Bureau of the Attorney 

General’s Office alleging, among other things, that the plaintiffs had 

fraudulently induced him to enter into the sale. Id. The complaint was 

forwarded to the Department, which assigned investigation of the complaint to 

Sheehan.

On February 22, 2010, Sheehan, Gorham, and Manchester Police 

Department officials drafted an application for a warrant to search Frost’s 
3

residence, which also served as the business address for Chretien, for evidence 

that the plaintiffs had participated in unlicensed mortgage lending in violation 

of RSA chapter 397-A. The supporting affidavit averred that Frost, as a 

member of Chretien, “had acted as a Mortgage Banker” with regard to the 

conduct complained of in Recio’s complaint.

The next day, the Manchester District Court (Ryan, J.) granted the 

search warrant application. Judge Ryan noted on the application that he had 

“inquired of . . . Sheehan regarding her investigation and what she had learned 

about Frost acting as a Mortgage Banker . . . Sheehan informed the Court that 

she looked at [the] mortgage registered with [the] Registry of Deeds which listed 

Chretien/Tillinghast as the mortgage banker. Frost had been the 

representative of Chretien/Tillinghast.” (Emphasis added.) In fact, the 

mortgage deed listed Chretien as the lender.

Subsequently, Manchester police officers executed the search warrant. 

Shortly thereafter, Frost was arrested and charged with four class A 

misdemeanors alleging violations of RSA chapter 397-A. The district court

later granted Frost’s motion to suppress the evidence obtained as a result of 

the search. The court found that Sheehan misrepresented that Chretien was 

listed as the “Mortgage Banker” in the Recio transaction and that her 

misrepresentation was material. The court, therefore, determined that the 

warrant application lacked probable cause. Thereafter, the court granted 

Frost’s motion to dismiss the criminal charges.

On March 23, the Department initiated administrative proceedings 

against Frost. See Frost, 163 N.H. at 369. After unsuccessfully attempting to 

resolve those claims, the plaintiffs initiated a declaratory judgment action in 

superior court, seeking to stay the administrative proceedings until the issue of 

the Department’s jurisdiction could be resolved. The trial court granted a 

preliminary injunction against further Department administrative proceedings, 

concluding that the Department lacked jurisdiction to take action against Frost 

for his conduct relating to the Recio mortgage transaction and to a separate 

seller-financed real estate transaction involving Frost Family. See id. at 370. 

The Department appealed, and we affirmed the trial court’s decision. See id. at 

367-68. We concluded that neither Frost Family nor Chretien “engaged in the 

business of making or brokering mortgage loans.” Id. at 376 (quotation 

omitted); see RSA 397-A:2, I (Supp. 2014). We further held that Frost was not 

subject to disciplinary action by the Department based upon the two disputed 

transactions because when they occurred, neither Frost Family nor Chretien

was a mortgage banker or broker under RSA chapter 397-A. Frost, 163 N.H. at 

376-77.

The plaintiffs then brought this action against the defendants, asserting 

various claims, including a § 1983 claim against Delaney, Hildreth, Gorham, 

Desfosses, and Sheehan. Specifically, the plaintiffs alleged that, in the course 
4

of obtaining the search warrant, Sheehan misrepresented material facts when 

she told Judge Ryan that Chretien was listed on the Recio mortgage as a 

mortgage banker. They claimed that this misrepresentation violated their right 

to be free from unreasonable search and seizure under the Fourth Amendment 

to the Federal Constitution as well as Frost’s rights to substantive and 

procedural due process under the Fourteenth Amendment to the Federal

Constitution. The plaintiffs also brought negligent supervision claims against 

Delaney, Hildreth, Desfosses, the State of New Hampshire, and the Department 

for allegedly failing to supervise employees within the Department and the 

Attorney General’s Office.

Subsequently, the trial court granted the defendants’ motion to dismiss 

the negligent supervision claims. Following a hearing on the defendants’ later 

summary judgment motion, the court found that the doctrine of official 

immunity bars the plaintiffs’ state constitutional and intentional infliction of 

emotional distress claims. It further found that the doctrine of qualified 

immunity bars the plaintiffs’ § 1983 claims. Accordingly, the court granted the 

defendants’ motion for summary judgment on those claims. The plaintiffs 

unsuccessfully sought reconsideration of both the trial court’s order dismissing 

their negligent supervision claims against Hildreth and Desfosses and the order 

granting summary judgment in favor of the remaining defendants on the 

§ 1983 claims. This appeal and cross-appeal followed.

II. Plaintiffs’ Appeal

A. Motion for Summary Judgment

We first consider the plaintiffs’ argument that the trial court erred by 

granting summary judgment on their § 1983 claim against Sheehan on the 

ground that she was entitled to qualified immunity. We note that the plaintiffs 

do not appeal the trial court’s ruling that official immunity bars their state 

constitutional and intentional infliction of emotional distress claims.

We review “a grant of summary judgment based on qualified immunity de

novo.” McInerney v. King, 791 F.3d 1224, 1227 (10th Cir. 2015) (quotation 

omitted). We consider the affidavits and other evidence, and all inferences 

properly drawn from them, in the light most favorable to the non-moving party. 

Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 35 (2005); see also

McInerney, 791 F.3d at 1227. If our review of that evidence discloses no 

genuine issue of material fact, and if the moving party is entitled to judgment 

as a matter of law, we will affirm the grant of summary judgment. Hughes, 152 

N.H. at 35.

We begin by reviewing the doctrine of qualified immunity. The doctrine 

of qualified immunity is a creature of federal law. Id. at 42. Under the 

doctrine, “government officials performing discretionary functions, generally are 
5

shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 

818 (1982).

“In resolving questions of qualified immunity at summary judgment, 

courts engage in a two-pronged inquiry.” Tolan v. Cotton, 134 S. Ct. 1861, 

1865 (2014). Courts may exercise discretion in deciding which of the prongs 

“should be addressed first in light of the circumstances in the particular case 

at hand.” Conrad v. N.H. Dep’t of Safety, 167 N.H. 59, 74 (2014) (quotation 

omitted); see also Tolan, 134 S. Ct. at 1866. The first prong “asks whether the 

facts taken in the light most favorable to the party asserting the injury, show 

the [officials’] conduct violated a federal right.” Tolan, 134 S. Ct. at 1865 

(quotation, brackets, and ellipsis omitted). The second prong “asks whether 

the right in question was ‘clearly established’ at the time of the violation.” Id. 

at 1866 (quotation omitted). This inquiry generally “turns on the objective legal 

reasonableness of the action, assessed in light of the legal rules that were 

clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S. 

635, 639 (1987) (quotations and citation omitted).

In other words, the official is entitled to immunity unless her actions 

violated “legal norms clearly established at the time of the challenged actions.” 

Richardson v. Chevrefils, 131 N.H. 227, 232 (1988) (quotation and ellipsis 

omitted). “This standard eliminates from consideration allegations about the 

official’s subjective state of mind, such as bad faith or malicious intention, 

concentrating the inquiry upon the ‘objective reasonableness’ of the official 

conduct.” Floyd v. Farrell, 765 F.2d 1, 4 (1st Cir. 1985). Indeed, “an allegation 

of malice is not sufficient to defeat immunity if the defendant acted in an 

objectively reasonable manner.” Malley v. Briggs, 475 U.S. 335, 341 (1986). 

Nonetheless, the determination of whether the official’s conduct is objectively 

legally reasonable “will often require examination of the information possessed 

by the” official, Anderson, 483 U.S. at 641, and “must be undertaken in light of 

the specific context of the case, not as a broad general proposition,” Brosseau 

v. Haugen, 543 U.S. 194, 198 (2004) (quotation omitted). “In the absence of 

clearly established law, an official is not expected to anticipate how courts will 

later illuminate the law’s grey areas, whereas clear law at the relevant time will 

preclude immunity unless an official can demonstrate extraordinary 

circumstances that could be said to have relieved her of responsibility to know 

the law’s content.” Richardson, 131 N.H. at 232 (citations omitted).

“The plaintiff bears the burden of demonstrating that the law was clearly 

established at the time of the alleged violation, and it is a heavy burden 

indeed.” Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015); see Snider v. City of 

Cape Girardeau, 752 F.3d 1149, 1155 (8th Cir. 2014). “This exacting standard 

gives governmental officials breathing room to make reasonable but mistaken 

judgments by protecting all but the plainly incompetent or those who 
6

knowingly violate the law.” Mitchell, 790 F.3d at 77 (quotation omitted); see

Malley, 475 U.S. at 341.

Here, as the trial court noted, the only dispute regarding whether 

qualified immunity bars the plaintiffs’ § 1983 claim against Sheehan is

whether, under the second part of the qualified immunity test, a reasonable 

person would have understood that her conduct violated the plaintiffs’ 

constitutional rights. With that in mind, we turn to the plaintiffs’ arguments.

1. Alleged Incompetence

The plaintiffs argue that the trial court failed to recognize that Sheehan’s 

“plain incompetence” precludes her qualified immunity defense. As evidence of 

Sheehan’s incompetence, they point to her failure to know “the black letter law 

in effect at the time of the [disputed] transaction” as well as the trial court’s 

findings that Sheehan was unfamiliar with certain basic aspects of the subject 

matter she was assigned to investigate and was “not qualified to handle the 

level of sophistication necessary to investigate real estate installment contracts, 

or make affirmative representations concerning real estate sales to a district 

court judge.” Based upon this evidence, they contend that Sheehan should 

have been denied the protection of qualified immunity.

The defendants counter that the record does not establish that Sheehan 

was incompetent. Instead, they argue that, “[i]n light of the [Department’s] 

understanding of how the term ‘mortgage banker’ was defined,” reasonably 

competent bank examiners could disagree as to whether Sheehan’s statements 

were accurate. Therefore, they contend that immunity is not precluded.

Defendants will not be entitled to qualified immunity “if, on an objective 

basis, it is obvious that no reasonably competent” official would have made the 

disputed error; “but if [officials] of reasonable competence could disagree on 

[the] issue, immunity should be recognized.” Malley, 475 U.S. at 341. As 

explained above, this standard focuses upon the facts of the particular case 

and whether a reasonable defendant would have understood that her conduct 

violated the plaintiffs’ rights, as well as the clarity of the law at the time of the 

alleged violation. See Conrad, 167 N.H. at 73. “This is not to say that an 

official action is protected by qualified immunity unless the very action in 

question has previously been held unlawful, but it is to say that in the light of 

pre-existing law the unlawfulness must be apparent.” Anderson, 483 U.S. at 

640 (citation omitted). There need not be a “case directly on point, but existing 

precedent must have placed the statutory or constitutional question beyond 

debate.” Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011).

We cannot say that the law was clearly established at the time of the 

alleged violation so that officials of reasonable competence could not disagree 

on the issue of whether Frost was acting as “mortgage banker” at the time of 
7

the Recio mortgage transaction. Sheehan made her statements that Frost was 

acting as a “mortgage banker” in February 2010, before we decided Frost, 

Frost, 163 N.H. at 376-77, and after RSA chapter 397-A was amended to 

provide that “‘mortgage lender’ means mortgage banker,” see RSA 397-A:1, 

XIII-a. Thus, when she made her statements, “mortgage banker” and 

“mortgage lender” were arguably synonymous terms. Accordingly, we conclude 

that the trial court did not err in determining that Sheehan was not precluded 

from entitlement to qualified immunity.

2. Objective Standard

The plaintiffs further contend that the trial court erred by applying a 

subjective rather than an objective standard in evaluating the qualified 

immunity defense. They maintain that the trial court improperly relied upon 

what it found to be Sheehan’s actual “‘good faith’” beliefs, rather than applying 

an “objective ‘reasonable person’ test.”

The interpretation of a trial court order is a question of law, which we 

review de novo. Choquette v. Roy, 167 N.H. 507, 513 (2015). We conclude that 

the trial court applied the correct standard.

The trial court determined that Sheehan’s “misrepresentations to Judge 

Ryan were made based on [her] good faith application of the [Department’s] 

policy concerning the relationship between mortgage bankers and mortgage 

lenders.” The court concluded, therefore, “that a similarly situated official 

would not have believed the misrepresentations violated Mr. Frost’s 

constitutional rights.” In its order on the plaintiffs’ motion for reconsideration, 

the court further explained:

Even if the Court were to strip the “good faith” aspect from its 

finding, the result remains the same. According to Ms. Sheehan’s 

objective knowledge, it was the policy of the [Department] to treat 

mortgage bankers and mortgage lenders synonymously. Former 

Assistant Attorney General Karen Gorham’s testimony at the 

hearing confirmed this policy. To find that Ms. Sheehan’s actions 

were objectively reasonable, therefore, is not, as the plaintiffs 

contend a reward of ignorance. Ms. Sheehan did not equate the 

terms mortgage banker and mortgage lender simply because she 

did not know any better. Her overall lack of knowledge 

notwithstanding, the Court finds it is objectively reasonable for a 

Bank Examiner to be familiar with and follow the internal policies 

of the Banking Department.

Although, as the plaintiffs point out, the trial court used the term “good 

faith,” implying that it considered Sheehan’s subjective state of mind, it then 

applied an objective standard to reach its conclusion that Sheehan’s conduct 
8

was objectively legally reasonable. The court examined the facts of the case 

and the information Sheehan possessed when she made the statement to 

Judge Ryan and assessed whether a reasonable person in her position would 

have understood that equating “mortgage lender” with “mortgage banker” 

violated the plaintiffs’ rights. See Conrad, 167 N.H. at 73; see also Anderson, 

483 U.S. at 641.

The plaintiffs maintain that “[i]f the trial court had used a truly objective 

[standard,] it would not have used the alleged fact that Sheehan was following 

an unofficial departmental ‘policy.’” We disagree. The trial court was permitted 

to examine the “specific context of the case” in determining whether Sheehan’s 

conduct was objectively reasonable. Saucier v. Katz, 533 U.S. 194, 201 (2001). 

Moreover, contrary to the plaintiffs’ contention, the court’s statement that it 

was objectively reasonable for a bank examiner to be familiar with, and follow, 

internal Department policies was not an analysis of the Department’s 

subjective belief. It was an analysis of whether a reasonable Department 

official would understand that what she was doing violated the law. See

Snider, 752 F.3d at 1155.

To the extent that the plaintiffs argue that there is a material issue of 

disputed fact as to whether there existed an informal policy equating mortgage 

banker with mortgage lender, we disagree. To defeat a motion for summary 

judgment, “the adverse party may not rest upon mere allegations or denials of 

his pleadings, but his response, by affidavits or by reference to depositions, 

answers to interrogatories, or admissions, must set forth specific facts showing 

that there is a genuine issue for trial.” RSA 491:8-a, IV (2010). The appellate 

record contains no affidavit, deposition, answer to interrogatory, or admission 

setting forth specific facts to bolster the plaintiffs’ contention that an informal 

policy did not exist. As such, this contention was insufficient to defeat 

summary judgment. Cf. Tolan, 134 S. Ct. at 1867-68 (vacating grant of 

summary judgment to officer on qualified immunity grounds because court had 

“credited the evidence of the party seeking summary judgment and failed 

properly to acknowledge key evidence offered by the party opposing that 

motion”).

Alternatively, the plaintiffs contend that such a policy, even if it existed, 

contravened the plain language of the statute in effect when Frost executed the 

mortgage. The protection of qualified immunity applies, however, “regardless of 

whether the government official’s error is a mistake of law, a mistake of fact, or 

a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555 

U.S. 223, 231 (2009) (quotation omitted). As such, it is not enough for a 

§ 1983 plaintiff to merely show mistake — a “plaintiff must also show that his 

clearly established constitutional rights were violated (i.e., that a reasonable 

[government official] would have known that he was violating those rights at 

the time of the challenged decision).” Bell v. Norwood, No. 2:11–CV–3732–RDP, 

2014 WL 4388348, at *9 (N.D. Ala. Aug. 28, 2014). As stated above, we cannot 
9

say that the law was clearly established at the time of the alleged violation so 

that officials of reasonable competence could not disagree on the issue of 

whether “mortgage banker” was synonymous with “mortgage lender.” Thus, 

the mere fact that Sheehan relied upon the unofficial policy does not 

necessarily preclude the application of qualified immunity.

3. Recklessness

The plaintiffs further argue that the trial court erred in determining that 

Sheehan’s conduct was not reckless. In making this argument, they rely upon 

language in Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005). 

However, the language upon which they rely applies in the context of the first 

prong of the qualified immunity inquiry — whether the plaintiff has established 

a constitutional violation. See Burke, 405 F.3d at 81-82. As the trial court

noted, the only dispute in this case concerns the second prong of the qualified 

immunity inquiry — whether a reasonable person would have understood that 

her conduct violated the plaintiffs’ constitutional rights. To the extent that the 

plaintiffs use the term “recklessly” as a synonym for “incompetent” under the 

second prong of the qualified immunity inquiry, as we explained, the trial court 

did not err when it failed to find that Sheehan was not plainly incompetent so 

as to preclude immunity. See Brennan v. Hendrigan, 888 F.2d 189, 192 (1st 

Cir. 1989). Moreover, to the extent that the plaintiffs contend that the trial 

court incorrectly applied a subjective standard in determining whether 

Sheehan acted recklessly, we are not persuaded. As discussed above, the trial 

court applied an objective standard to reach its conclusion that Sheehan’s 

conduct was objectively legally reasonable.

4. Discretionary Authority

The plaintiffs next argue that the trial court erred by finding that 

Sheehan’s response to Judge Ryan’s inquiry constituted a discretionary act. 

They maintain that Sheehan’s responsibility was to provide the judge with 

“factual information, not legal interpretation,” and that there is no “room for 

discretion, interpretation or spin in responding to judicial inquiry.” We find no 

error with the trial court’s determination that Sheehan’s conduct was 

discretionary.

As a threshold matter, we note that the trial court’s ruling regarding 

whether Sheehan’s conduct was discretionary was in the context of its official 

immunity analysis under state law. See Everitt v. Gen. Elec. Co., 156 N.H. 

202, 219-21 (2007). Because neither party argues for a different standard in 

the qualified immunity context, for purposes of this appeal, we will apply that 

standard.

Under official immunity, government officials are protected from personal 

liability for those decisions, acts or omissions that are: (1) made within the 
10

scope of their official duties while in the course of their employment; (2) 

discretionary rather than ministerial; and (3) not made in a wanton or reckless 

manner. Id. at 219. A discretionary decision, act, or omission involves the 

exercise of personal deliberation and individual professional judgment that 

necessarily reflects the facts of the situation and the professional goal. Id. 

Such decisions include those for which there are no hard and fast rules as to 

the course of conduct that must be followed and those acts requiring the 

exercise of judgment involving what is just and proper under the 

circumstances. Id. at 219-20. By contrast, “an official’s decision, act or 

omission is ministerial when it is absolute, certain and imperative, involving 

merely execution of a specific duty arising from fixed and designated facts.” Id. 

at 220. “Ministerial refers to a duty which is to be performed in a prescribed 

manner without the exercise of judgment or discretion” and includes those 

decisions, acts, or omissions “imposed by law with performance required at a 

time and in a manner or upon conditions which are specifically designated, the 

duty to perform under the conditions specified not being dependent upon the 

officer’s judgment or discretion.” Id. (quotations omitted).

Here, we agree with the trial court that Sheehan’s answer to Judge 

Ryan’s inquiry involved “deliberation, judgment and decision making.” 

Sheehan was assigned by the Department to investigate whether the plaintiffs 

had engaged in unlicensed mortgage lending in violation of RSA chapter 397-A. 

Sheehan testified that, because she was not able to obtain the information she 

requested from Frost and Chretien’s attorney, it was decided that “[t]he next 

step [was] . . . to obtain search warrants to gather the information that we 

needed to continue the investigation.” Although there is no discretion to 

commit perjury, see RSA 641:1 (2007), here, Sheehan’s response to Judge 

Ryan’s question occurred as part of her investigation and involved the exercise 

of personal deliberation and individual professional judgment that necessarily

reflects the facts of the situation and the professional goal, see Everitt, 156 

N.H. at 219. Furthermore, as we explained, a reasonably competent official 

could have concluded that Frost was acting as a mortgage banker at the time of 

the Recio mortgage transaction. We, therefore, conclude that the trial court did 

not err by finding that Sheehan’s conduct was discretionary.

B. Motion to Dismiss

The plaintiffs argue that the trial court erred by dismissing their 

negligent supervision claims against Hildreth and Desfosses. The trial court 

found that those claims involved “investigating, initiating and continuing the

civil proceedings against Frost,” which were “similar to the responsibility of a 

criminal prosecutor in initiating and prosecuting criminal cases.” It, therefore, 

dismissed them on the basis of absolute prosecutorial immunity. See Van de 

Kemp v. Goldstein, 555 U.S. 335, 343-48 (2009). It subsequently found that 

Sheehan’s statements to Judge Ryan “did not include the functions of a 

prosecutor and [were] therefore not protected by prosecutorial immunity.”
11

The plaintiffs argue that it was error for the trial court to dismiss their 

negligent supervision claims on prosecutorial immunity grounds because 

Sheehan was not entitled to the same immunity. Whether Hildreth and 

Desfosses are immune from liability on the basis of prosecutorial immunity 

because their alleged conduct was “analogous to [that] of a prosecutor,” Butz v. 

Economou, 438 U.S. 478, 515 (1978), is a separate inquiry from whether 

Sheehan was immune from liability on the basis of prosecutorial immunity 

because her alleged conduct was akin to that of a prosecutor. As the trial 

court found, “Sheehan’s non-immune conduct does not strip Hildreth and 

Desfosses of their immunity.” Consequently, we cannot say that the trial court 

erred by granting the defendants’ motion to dismiss as to Hildreth and 

Desfosses.

III. Defendants’ Cross-Appeal

Finally, defendants the State of New Hampshire, the Department, and 

Sheehan raise two issues in their notice of cross-appeal. However, because 

they have not briefed those issues, we deem them waived. See In re Estate of 

King, 149 N.H. 226, 230 (2003).

Affirmed.

DALIANIS, C.J., and LYNN and BASSETT, JJ., concurred.