UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Ralph Holder

v. Civil No. 08-cv-197-JL

Opinion No. 2010 DNH 019

Town of Newton, et al.

OPINION & ORDER

Challenging the constitutionality of a warrantless arrest

followed by overnight detention, plaintiff Ralph Holder brought

suit under 42 U.S.C. § 1983 asserting a multitude of

constitutional and related state-law claims against the officers

who arrested him, their respective towns and police chiefs, and

the county jail and its superintendent. He alleges that the

officers entered his home without a warrant or exigent

circumstances, arrested him without probable cause, and used

excessive force to remove him. He also alleges that the county

jail, knowing he was eligible for release on bail, refused to

arrange a bail hearing until the next morning. 

The defendants have moved for summary judgment on all

claims. See Fed. R. Civ. P. 56. This court has subject-matter

jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367

(supplemental jurisdiction). After oral argument, summary

judgment is granted. The officers clearly had probable cause to

arrest Holder and did not use excessive force. Whether they

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violated the Fourth Amendment by following Holder into his home

to complete the arrest is debatable. But our court of appeals

has granted qualified immunity to the police in nearly identical

circumstances, and this court does the same. As for the

overnight detention, the county jail promptly notified the bail

commissioner of Holder’s arrest and had no constitutional

obligation to arrange a bail hearing before morning.

I. Applicable legal standard

Summary judgment is appropriate where “the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). An issue is “genuine” if it could

reasonably be resolved in either party’s favor at trial, and

“material” if it could sway the outcome under applicable law. 

Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003).

In making this determination, the “court must scrutinize the

record in the light most flattering to the party opposing the

motion, indulging all reasonable inferences in that party’s

favor.” Id. This indulgence, however, “does not relieve the

nonmovant of the burden of producing specific facts sufficient to

deflect the swing of the summary judgment scythe.” Id. The

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court “must ignore conclusory allegations, improbable inferences,

and unsupported speculation” in determining whether summary

judgment is appropriate. Taylor v. Am. Chemistry Council, 576

F.3d 16, 24 (1st Cir. 2009). 

II. Background

This case arises from a domestic disturbance that Holder’s

20-year-old daughter reported to the Newton, New Hampshire police

department around 5 p.m. on May 17, 2005. Officer Joseph Saluto

immediately went to Holder’s house and spoke with his daughter,

who was the only person still there. She told him that Holder

had tried to kick her out of the house that afternoon. In the

process, she said, Holder had threatened and physically assaulted

her, grabbing her arm and neck and pushing her against a wall.1

Officer Saluto observed a red mark on her neck and found the

house in disarray, consistent with a struggle. He called for

medical assistance. Holder’s daughter ultimately left the house

with medical personnel, went to the hospital, and made plans to

stay at a shelter that night.

The parties dispute whether Holder actually committed these 1

acts. For purposes of analyzing the summary judgment motions,

this court assumes that he did not.

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Officer Saluto drove past Holder’s house again around 8 p.m.

and saw a truck in the driveway. He contacted Officer Chad

Larson from neighboring East Kingston, New Hampshire, and asked

for his help in arresting Holder for assault under N.H. Rev.

Stat. § 631:2-a. After Officer Larson arrived, they walked

together to the front door and knocked. Holder opened the door,

wearing only a tee shirt and boxer shorts. The officers

explained that they were arresting him for assaulting his

daughter and asked him to step outside. Holder refused to do so. 

For about thirty seconds, he tried to debate whether he should be

arrested. Then he went back into the house, telling the officers

he needed to go to the living room to put pants on. He left the

door slightly open behind him. 

The officers followed Holder through the open door to

complete the arrest. Inside the house, Holder continued to 2

debate with the officers and urged them to call their superiors,

which they refused to do. Holder then requested permission to

call his ex-wife to come for their 9-year-old son, who was in the

house preparing to take a shower. The officers agreed to make

the call themselves. As they did, Holder went to speak with his

The parties dispute whether Holder consented to the 2

officers’ entry. For purposes of analyzing the summary judgment

motions, this court assumes that he did not.

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son in the bathroom. After the call, Holder allowed the officers

to handcuff him. Because he is a large man and claimed to have

shoulder problems, the officers triple-cuffed him (i.e., used

three pairs of handcuffs linked together in a chain) behind his

back to allow greater spread between his hands. 

The officers then attempted to lead Holder out of the house. 

Holder resisted, telling them to wait until his ex-wife arrived. 

Twice he put his foot on the doorframe to prevent them from

taking him outside. That caused the officers to tighten their

hold on his arms, which in turn caused Holder to acquiesce. The

officers brought him outside and put him in the back of the

police cruiser. Once there, he complained about shoulder pain

from his handcuffs, so the officers re-cuffed him with his hands

in front of his body. Officer Larson then went back into the

house to help Holder’s son gather his clothing and prepare for

his mother’s arrival.

Holder’s ex-wife arrived around 9:30 p.m. and took custody

of her son. At that point, Officer Larson left the scene, and

Officer Saluto transported Holder to the Rockingham County

Department of Corrections (“DOC”). During the booking process,

Officer Saluto contacted a bail commissioner to determine

Holder’s bail eligibility. The commissioner advised Officer

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Saluto to “offer” Holder bail in the amount of $2500. Before 3

leaving the DOC, Officer Saluto relayed that information to

Holder, who happened to have $2759 in his wallet when arrested. 

After booking, which took until about 10:30 p.m., Holder

asked DOC staff when they were going to contact the bail

commissioner to arrange a bail hearing. They told him that,

under DOC policy, he could not be released at night without a

ride home. The DOC is in a rural area with dark roads and no

taxi service at night. Holder, who lived at least five miles

away, did not have a ride. The bail commissioner came to the DOC

in the morning and ordered Holder’s release on bail at 6:44 a.m. 

Holder was released shortly thereafter. In the ensuing state

criminal proceedings, he was found guilty of resisting arrest,

but the judge did not impose any sentence. The assault charges

were dismissed.

Holder then filed this § 1983 suit against three sets of

defendants: Officer Saluto, the Town of Newton, and its police

chief (the “Newton defendants”); Officer Larson, the Town of East

Kingston, and its police chief (the “East Kingston defendants”);

What the commissioner meant by the term “offer” is unclear, 3

but not material to the outcome. As discussed infra, Holder

conceded in his summary judgment affidavit that the county jail

had no authority to release him without a signed order from the

commissioner or a judge. See N.H. Rev. Stat. § 597:2. 

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and the DOC and its superintendent (the “county defendants”). 

4

His complaint asserted constitutional claims under the First

Amendment (retaliation), Fourth Amendment (unreasonable search

and seizure), Fifth Amendment (due process), Sixth Amendment

(notice of accusation), Eighth Amendment (excessive bail), and

Fourteenth Amendment (due process and equal protection). In

addition, Holder asserted state-law claims for false arrest,

trespass, assault and battery, false imprisonment, malicious

prosecution, negligent hiring and retention, negligent training

and supervision, and negligent performance of duties. 

Earlier in the case, the county defendants moved to dismiss

the § 1983 claim against them, arguing that Holder’s overnight

detention was too short to be constitutionally significant.5

This court disagreed, noting that “[t]here is a substantial body

of law in support of the proposition that a plaintiff who alleges

Officers Saluto and Larson were sued in their individual 4

capacities. The other defendants were sued in their official

capacities.

The county defendants also moved to dismiss Holder’s § 1983 5

claim to the extent that it alleged a denial of adequate medical

care during his detention. This court granted dismissal because

Holder had not sufficiently alleged that the county defendants

acted pursuant to a policy or custom, as required to establish

constitutional liability. See Holder, 638 F. Supp. 2d at 157

(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978)). At oral argument, Holder conceded that this court’s

earlier ruling, together with his failure to disclose a medical

expert, forecloses any claim for medical damages.

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overdetention, sometimes even for a very short period, states a

claim for constitutional violations.” Holder v. Town of Newton,

638 F. Supp. 2d 150, 153 (quoting Barnes v. District of Columbia,

242 F.R.D. 113, 117 (D.D.C. 2007)). Because “‘overdetention’

means . . . that the plaintiff has been imprisoned by the

defendant for longer than legally authorized,” this court made

clear that such a claim could succeed only if “the bail

commissioner effectively ordered [Holder’s] release on his own

recognizance but the county defendants nevertheless continued to

hold him.” Id. at 153, 155. The opinion deferred until a later

stage the question of whether Holder was, in fact, “overdetained”

in this sense or, if not, whether any role the county defendants

played in delaying the bail order could itself be actionable. 

Id. at 155-56. That stage has now arrived, as all defendants

have moved for summary judgment on all claims. 

6

Holder argues that this court’s earlier decision on the 6

motion to dismiss precludes reconsideration of the same issues on

summary judgment. Of course, this argument is clearly wrong, if

not frivolous, and would be so even if the earlier decision had

not expressly contemplated such future consideration. Holder

also argues that he needs more time for discovery. But because

he opposed summary judgment on the merits without seeking relief

under Fed. R. Civ. P. 56(f), he has waived any such argument. 

See Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 282 n.7 (1st Cir.

2006). Moreover, with the case on the eve of trial and the

discovery deadline past, Holder has not given this court any

reason to believe that additional discovery would affect the

analysis of the summary judgment motions.

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III. Analysis

This court must determine whether Holder has any trialworthy

claims against the defendants. Although his complaint takes a

scattershot approach and alleges many different constitutional

violations, all of them arise from two key events: (A) Holder’s

warrantless arrest in his home and (B) his overnight detention. 

After analyzing both events, this court will also address (C)

Holder’s related state-law claims. As explained below, the only

claim that may have some merit is Holder’s Fourth Amendment

challenge to the warrantless home entry, the legality of which is

debatable. But because the law is not clearly established on

that point, the officers are entitled to qualified immunity. 

This court therefore grants summary judgment on all claims.

A. The warrantless arrest

Holder’s warrantless arrest raises three constitutional

questions: (1) whether the officers had probable cause; (2) if

so, whether exigent circumstances justified a warrantless entry

into his home in order to complete the arrest; and (3) whether

the officers used excessive force in carrying out the arrest. 

This court will address each question in turn.

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1. Probable cause

First, Holder argues that the officers violated the Fourth

Amendment by arresting him without probable cause. See U.S.

Const. amend. IV (prohibiting “unreasonable searches and

seizures”); Michigan v. Summers, 452 U.S. 692, 700 (1981)

(stating “the general rule that every arrest . . . is

unreasonable unless it is supported by probable cause”). 

Probable cause exists when the “facts and circumstances within

the officer’s knowledge” at the time of arrest “are sufficient to

warrant a prudent person, or one of reasonable caution, in

believing . . . that the suspect has committed, is committing, or

is about to commit an offense.” Holder v. Town of Sandown, 585

F.3d 500, 504 (1st Cir. 2009) (quoting Michigan v. DeFillippo,

443 U.S. 31, 37 (1979)). “The test for probable cause does not

require the officers’ conclusion to be ironclad, or even highly

probable. Their conclusion that probable cause exists need only

be reasonable.” Id. (quoting Acosta v. Ames Dep’t Stores, Inc.,

386 F.3d 5, 11 (1st Cir. 2004)).

Here, the officers arrested Holder based on his daughter’s

allegation that he had physically assaulted her, grabbing her arm

and neck and pushing her against a wall. Officer Saluto

discussed the incident with Holder’s daughter shortly after it

happened, giving him a firsthand opportunity to assess her

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credibility. He also observed a red mark on her neck and found

Holder’s home in disarray, which appeared to corroborate her

allegations. She ultimately left with medical personnel and made

plans to stay at a shelter that night, a further indication that

her allegations were genuine. The officers knew of no reason to

doubt her. Under these circumstances, it was reasonable for them

to believe that Holder had, in fact, assaulted his daughter. 

See, e.g., Bryant v. Noether, 163 F. Supp. 2d 98, 108 (D.N.H.

2001) (McAuliffe, C.J.) (“Although not a per se rule, a victim’s

statement will generally suffice to support probable cause,

absent some reason to doubt the victim’s reliability.”) (citing

B.C.R. Transp. Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir. 1984)).

Holder argues that if the officers had investigated his

daughter’s allegations more thoroughly, they would have learned

that she has mental health and drug abuse problems and lacks

credibility. But “[p]robable cause determinations are, virtually

by definition, preliminary and tentative.” Acosta, 386 F.3d at

11. Our court of appeals has “disclaimed any unflagging duty on

the part of law enforcement officers to investigate fully before

making a probable cause determination,” explaining that “an

officer normally may terminate her investigation when she

accumulates facts that demonstrate sufficient probable cause.” 

Id. As explained above, the facts accumulated in this case

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easily rose to that level. The officers did not need to

investigate any further before making an arrest.

Holder also argues that even if the officers had probable

cause when they showed up at his door, they lost it during the

ensuing “debate,” in which Holder denied assaulting his daughter 7

and explained his side of the story. This argument has no merit. 

It would be nearly impossible for the police to carry out an

arrest if the suspect’s mere denials were enough to extinguish

probable cause, especially in the face of otherwise credible

victim testimony and corroborating evidence. Holder has not

identified any authority for that position. Indeed, the

authority is to the contrary. See, e.g., Reynolds v. Jamison,

488 F.3d 756, 768 (7th Cir. 2007) (concluding that an officer

“could not be expected to believe [the suspect’s] declarations of

innocence”); Cox v. Hainey, 391 F.3d 25, 32 n.2 (1st Cir. 2004)

(“A reasonable police officer is not required to credit a

suspect’s story.”).

Given Holder’s admission that he “debated” the assault 7

charge at length with the officers, there is also no merit to his

conclusory allegation that he was not “informed of the nature and

cause of the accusation” against him as required by the Sixth

Amendment. U.S. Const. amend. VI. Moreover, this claim is based

on a misunderstanding of the Sixth Amendment, which does not

demand such notice immediately upon arrest. See, e.g., Solis v.

Prince George’s County, 153 F. Supp. 2d 793, 803 (D. Md. 2001)

(citing case law).

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As a final nail in the coffin, this court agrees with the

defendants that Holder conceded the existence of probable cause

at his deposition. Here is the relevant question-and-answer:

Q: So they had probable cause to arrest, they just 

 couldn’t come into the house to do it?

A: Yes, sir.

Holder has tried to argue his way out of that concession, but it

could not be any clearer. And it has the added benefit of being 8

right. The officers had probable cause to arrest Holder based on

his daughter’s allegations and corroborating evidence. His claim

therefore fails.

2. Exigent circumstances

Next, Holder alleges that the officers violated the Fourth

Amendment by entering his home without a warrant in order to

carry out the arrest. The Supreme Court, emphasizing that

“physical entry of the home is the chief evil against which the

wording of the Fourth Amendment is directed,” has held that

warrantless “arrests in the home are prohibited by the Fourth

This court devoted a substantial amount of time to the 8

probable cause issue at oral argument, because Holder’s counsel

refused to acknowledge his client’s concession. It is counsel’s

obligation to know and fairly represent the record at oral

argument, as well as to advise his client against taking

unreasonable positions. Neither appears to have happened here.

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Amendment, absent probable cause and exigent circumstances.” 

Welsh v. Wisconsin, 466 U.S. 740, 748-49 (1984) (citing Payton v.

New York, 445 U.S. 573 (1980)). As just explained, the officers

clearly had probable cause to arrest Holder. The more difficult

question is whether exigent circumstances justified their entry

into his home.

“To show exigent circumstances, the police must reasonably

believe that there is such a compelling necessity for immediate

action as will not brook the delay of obtaining a warrant.” 

DeMayo v. Nugent, 517 F.3d 11, 15 (1st Cir. 2008). Common

examples include “(1) ‘hot pursuit’ of a fleeing felon; (2)

threatened destruction of evidence . . . ; (3) a risk that the

suspect may escape from the residence undetected; or (4) a

threat, posed by a suspect, to the lives or safety of the public,

the police officers, or to herself.” United States v. Martins,

413 F.3d 139, 146-47 (1st Cir. 2005) (cautioning that this “list

is not an exclusive compendium”). The defendants have presented

two theories of exigency in this case. While neither theory is

airtight, the court of appeals has relied on each of them in

granting qualified immunity under similar circumstances. This

court does the same.

The first theory is that the officers, having announced the

arrest while Holder was standing in his open doorway, were

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justified in entering his home to complete the arrest because it

would have been dangerous to let him out of their sight at that

point. The defendants derive this theory from United States v.

Santana, 427 U.S. 38 (1976), where the Supreme Court held that

the police were justified in entering a house to arrest a felony

suspect who had been standing in her doorway but then retreated

inside when the police announced their presence. The Court

described the doorway as a “public place” and reasoned that “a

suspect may not defeat an arrest which has been set in motion in

a public place . . . by the expedient of escaping to a private

place.” Id. at 43. The Court also noted that the police had a

“realistic expectation that any delay would result in destruction

of evidence.” Id.

 This case is more difficult than Santana because Holder came

to the doorway only after the officers knocked, his alleged

offense was only a misdemeanor, and the officers have articulated

no fear that he would destroy evidence. But despite these

differences, the court of appeals has granted qualified immunity

to the police in a case involving nearly identical circumstances

to these. See Joyce v. Town of Tewksbury, 112 F.3d 19 (1st Cir.

1997) (en banc). As in this case, the suspect in Joyce came to

the door when officers knocked. The officers announced, as they

did here, that they were arresting him for misdemeanor relating

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to a domestic disturbance and asked him to step outside. Like 9

Holder, the suspect refused to do so and retreated into the

house. And as in this case, the officers followed him inside to

complete the announced arrest. Id. at 20.

The court of appeals, sitting en banc, rejected the view

that Santana “turn[s] on whether the individual is standing

immediately outside or immediately inside the house when the

police first confront him and attempt an arrest.” Id. at 22. 

Likewise, the court downplayed the felony/misdemeanor

distinction, noting that domestic abuse is “among the more grave

offenses affecting our society.” Id. Nevertheless, the court

acknowledged that Santana did not “definitively resolve” the

constitutional issue and that “there are arguments to be made on

both sides,” id., as evidenced by a strong dissent from Judges

Selya and Stahl arguing that the home entry violated the Fourth

Amendment. See id. at 24. “Given the unsettled state of the

law,” the court of appeals had “no hesitation in concluding that

Although the police in Joyce claimed to have a warrant for 9

the suspect’s arrest, that fact was not relevant to the

constitutional analysis because the home belonged to the

suspect’s parents, not the suspect himself. To enter a third

party’s home to effectuate an arrest, the police generally must

have a search warrant (not just an arrest warrant) or must be

faced with exigent circumstances. See Joyce, 112 F.3d at 22

(citing Steagald v. United States, 451 U.S. 204, 212-13 (1981)).

So Joyce did not turn on the presence of a warrant, but rather

the presence of exigent circumstances.

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the officers in this case [were] protected by qualified

immunity.” Id. at 22. The court declined to resolve the

underlying constitutional issue, explaining that it could “await

a case where the issue is decisive.” Id. at 23. That case has

not yet come.

The question, then, is whether Joyce’s qualified immunity

analysis still holds true today. This court concludes that it

does. Qualified immunity is an affirmative defense that shields

government officials from having to litigate all the way to

trial, provided that they can meet their burden of showing that

they did not violate “clearly established” constitutional rights. 

See, e.g., DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 35 (1st Cir.

2001). In analyzing such a defense, the court must evaluate “(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 v. Fontanes, 568 F.3d 263, 269

(1st Cir. 2009) (quoting Pearson v. Callahan, 129 S. Ct. 808,

815-16 (2009)). Here, even if Holder could show that the

warrantless entry violated his Fourth Amendment rights, that

conclusion was not “clearly established” at the time of his

arrest in 2005. Indeed, our court of appeals reiterated in 2004

that “the law is not clearly defined” regarding doorway arrests. 

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United States v. Beaudoin, 362 F.3d 60, 68 n.4 (1st Cir. 2004),

vacated on other grounds, Champagne v. United States, 543 U.S.

1102 (2005). And another district court noted in 2005 that the

issue “is in great dispute among the federal courts.” Breitbard

v. Mitchell, 390 F. Supp. 2d 237, 248 (E.D.N.Y. 2005). Because

the law remains unsettled, qualified immunity applies. 

If anything, this case is easier than Joyce. There, the

court of appeals had “no information as to whether [the suspect’s

underlying] conduct . . . involved actual violence,” which made

the exigency argument even more tenuous. 112 F.3d at 22. Here,

in contrast, Holder had been accused of actual violence against

his daughter. Indeed, that is the basis for the defendants’

second theory of exigency: that they acted pursuant to a New

Hampshire statute requiring the police to “use all means within

reason to prevent further [domestic] abuse” and expressly 10

authorizing warrantless arrests within 12 hours of any such

offense, whether or not the officer witnessed it. See N.H. Rev.

Stat. § 173-B:10 (incorporating by reference N.H. Rev. Stat. §

594:10). The New Hampshire Supreme Court, in a case decided one

The statute defines domestic abuse to include assault 10

against a family member “where such conduct constitutes a

credible threat to the [victim’s] safety.” N.H. Rev. Stat. §

173-B:1. As explained above, see supra Part III.A, the officers

had probable cause to believe that Holder had committed such an

offense.

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year before Holder’s arrest, expressly interpreted that statute

as authorizing warrantless arrests in the home. See New

Hampshire v. Merriam, 150 N.H. 548, 551 (2004).

The defendants argue that the New Hampshire statute, as

interpreted by Merriam, establishes a “per se exigency” for every

warrantless arrest within 12 hours of domestic abuse. But that

probably goes too far, at least as a matter of Fourth Amendment

law. The Supreme Court has expressed “hesitation in finding

exigent circumstances, especially when warrantless arrests in the

home are at issue,” and has placed a “heavy burden” on the police

to show that a true exigency exists. Welsh, 466 U.S. at 750. 

Such determinations “must be made on a case-by-case basis.” 

United States v. Wihbey, 75 F.3d 761, 766 (1st Cir. 1996). Even

for crimes as serious as murder, the Court has rejected a per se

approach to exigency determinations under the Fourth Amendment. 

See Mincey v. Arizona, 437 U.S. 385 (1978) (involving a postarrest search). So it is highly unlikely that domestic abuse

cases would receive per se treatment, even if that is what the

New Hampshire statute contemplates.

This court need not decide whether the statute is

constitutional as applied to Holder’s arrest, however, because

the officers clearly have qualified immunity here in light of the

New Hampshire statute and case law. Our court of appeals has

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granted qualified immunity to the police in a similar § 1983 case

involving the same statute. See Malachowski v. City of Keene,

787 F.2d 704 (1st Cir. 1986). There, the police entered the

plaintiffs’ house without a warrant to take their 16-year-old

daughter into custody for juvenile delinquency. The court of

appeals analyzed the entry as follows:

Even if we were to discern a constitutional

infirmity in [the officer’s] application of these state

statutes to effect a warrantless home arrest, certainly

[the officer] could not reasonably be expected to

anticipate such a difficulty. There can be no claim

that these state statutory provisions obviously are

illegitimate on their face. [The officer] was entitled

to act in accordance with governing state statutory

law. Since he conformed his conduct to that law, [the

officer] is immune from damages liability under § 1983.

Id. at 714. 

Although Malachowski is more than 20 years old, the New

Hampshire Supreme Court’s decision in Merriam gives it renewed

vitality. The officers here were entitled to act in accordance

with their state statute as recently interpreted by their state’s

highest court. And even if Malachowski’s logic alone is not

enough to shield the officers from liability, the combination of

the defendants’ two theories of exigency--one immunized in Joyce

and the other in Malachowski--makes this a clear case for

qualified immunity. 

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This is not to say, however, that the Fourth Amendment

necessarily condones the officers’ warrantless entry of Holder’s

home. As both Joyce and Malachowski suggest, the

constitutionality of such an entry is debatable, if not doubtful. 

But the doctrine of qualified immunity “surround[s] the police

who make these on-the-spot choices in dangerous situations with a

fairly wide zone of protection in close cases.” Roy v.

Inhabitants of City of Lewiston, 42 F.3d 691, 695 (1st Cir.

1994). This is a close enough case under existing precedent to

warrant such protection. And even if future cases establish that

the officers made a mistake by entering Holder’s home, “qualified

immunity leaves ‘ample room for mistaken judgments.’” Berube v.

Conley, 506 F.3d 79, 83 (1st Cir. 2007) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)); see also Fletcher v. Town of

Clinton, 196 F.3d 41, 50 (1st Cir. 1999) (“Deference to those

[on-the-spot] judgments may be particularly warranted in domestic

disputes,” where “violence may be lurking and explode with little

warning.”).

Holder argues that even if the officers have qualified

immunity, their respective towns should be held liable for the

warrantless home entry. Because “municipalities do not enjoy

qualified immunity,” it is theoretically possible for them “to be

held liable for the actions of lower-level officers who are

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themselves entitled to qualified immunity.” Joyce, 112 F.3d at

23 (citing Owen v. City of Independence, 445 U.S. 622, 650

(1980)). But for that to happen, Holder would need to show that

a municipal “policy or custom” caused a violation of his

constitutional rights. See Monell, 436 U.S. at 694; Est. of

Bennett v. Wainwright, 548 F.3d 155, 177 (1st Cir. 2008). He has

not presented any evidence of an unconstitutional policy or

custom in this case.

The summary judgment record indicates that the relevant

municipal policy (adopted from the New Hampshire Attorney

General’s model protocol for domestic abuse cases) expressly

advised officers not to enter a suspect’s home to make an arrest

in the absence of exigent circumstances. Holder acknowledges 11

in his summary judgment affidavit that the policy, as well as the

officers’ training, “re-enforced the constitutional requirements

for a warrant.” As to municipal custom, Holder has not

identified any other warrantless home arrests by Newton or East

Kingston police that lacked exigency. “Evidence of a single

incident is usually insufficient to establish a custom.” St.

Hilaire v. City of Laconia, 71 F.3d 20, 29 (1st Cir. 1995)

This policy is not fatal to the officers’ qualified 11

immunity defense because, as explained supra, whether exigent

circumstances existed here is debatable under existing case law. 

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(quotation omitted). That is particularly apt where, as here,

the municipality has a policy to the contrary.

In a last-ditch attempt to salvage this claim, Holder also

argues that the officers violated the Fourth Amendment by reentering his house immediately after the arrest to help his 9-

year-old son. That argument was not properly raised in his 12

complaint and, in any event, lacks merit for two reasons. First,

the re-entry was “no more than an actual continuation of the

first” entry and thus does not require a separate analysis. 

Michigan v. Tyler, 436 U.S. 499, 511 (1978); see also Bilida v.

McCleod, 211 F.3d 166, 172 (1st Cir. 2000). Second, the re-entry

was reasonable under the Fourth Amendment because, as Holder

acknowledged at his deposition, his son was alone inside and in a

“very precarious situation.” See, e.g., Martins, 413 F.3d at 148

(discussing case law allowing emergency entries to protect young

children).

Holder also alleges that, during his ensuing overnight 12

detention, the police returned to his home yet again to search

for incriminating evidence. This claim, which relies solely on

what Holder characterizes as the disarray he found in his home

upon returning from jail, is wholly speculative and cannot

survive summary judgment. See Taylor, 576 F.3d at 24.

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3. Excessive force

Finally, Holder alleges that the officers used excessive

force when removing him from the home. “To establish a Fourth

Amendment violation based on excessive force, a plaintiff must

show that the defendant officer employed force that was

unreasonable under the circumstances.” Jennings v. Jones, 499

F.3d 2, 11 (1st Cir. 2007). This reasonableness determination is

“objective” and requires “careful attention to the facts and

circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is

actively resisting arrest.” Id.

Holder, a large man, admits that he actively resisted arrest

(and was found guilty of doing so). Twice he put his feet on the

doorframe to prevent the officers from taking him outside. The

officers responded by briefly tightening their hold on his arms

until he acquiesced. This limited use of force was both

reasonable and necessary under the circumstances. See, e.g.,

Jennings, 499 F.3d at 11 (“In making an arrest, a police officer

has the right to use some degree of physical coercion or threat

thereof to effect it . . . . The use of force is an expected,

necessary part of a law enforcement officer’s task of subduing

and securing individuals suspected of committing crimes.”)

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(quotation omitted); Gaudreault v. Municipality of Salem, Mass.,

923 F.2d 203, 205 (1st Cir. 1990) (“not every push or shove rises

to the level of a constitutional violation”).

 Holder also argues that the officers exacerbated a preexisting shoulder injury when they handcuffed him. But he

admitted at his deposition that the officers triple-cuffed him

“to accommodate” his size and shoulder injury. And when he

complained about shoulder pain, they immediately re-cuffed his

hands on the front of his body to make him more comfortable. 

Even assuming that Holder did experience some shoulder pain,

“minor, incidental injuries that occur in connection with the use

of handcuffs to effectuate an arrest do not give rise to a

constitutional claim for excessive force.” Freeman v. Gore, 483

F.3d 404, 417 (5th Cir. 2007); see also Caron v. Hester, 2001 DNH

206 (McAuliffe, D.J.) (rejecting a similar claim).

To summarize this court’s analysis of the constitutional

claims arising from Holder’s arrest, the officers clearly had

probable cause to arrest Holder for assault based on his

daughter’s allegations and corroborating evidence. Whether they

violated the Fourth Amendment by following Holder into his home

to complete the arrest is debatable under existing precedent, but

the very existence of that debate entitles them to qualified

immunity. Finally, the minimal force that the officers used to

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subdue Holder was both reasonable and necessary under the

circumstances, particularly in light of Holder’s admitted

resistance. Summary judgment is therefore appropriate on all of

Holder’s arrest-related claims.

B. The overnight detention

The other half of this case relates to Holder’s overnight

detention in the county jail. Holder initially alleged that the

bail commissioner had ordered his release on the night of his

arrest, but that the county jail nevertheless continued to detain

him until the next morning. This court ruled in an earlier

opinion that if Holder could prove this allegation, then he might

be able to show a due process violation under the Fourteenth

Amendment. Holder, 638 F. Supp. 2d at 155-57; see also U.S.

Const. amend. XIV (“nor shall any State deprive any person of

life, liberty, or property, without due process of law”). But

this court cautioned that it “would seem to present a different

question” if the county jail merely “learned, through contact

with the bail commissioner on the night of Holder’s arrest, that

he would be eligible for release on his own recognizance, but

that . . . the bail commissioner did not in fact order Holder’s

release until the next morning.” Id. at 155. As it turns out,

that is exactly what happened. This court must therefore decide

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that question: whether due process required the county jail to

arrange a nighttime bail hearing upon learning of Holder’s

eligibility for release.

There is no absolute right to bail under the Constitution. 

See United States v. Salerno, 481 U.S. 739, 752-53 (1987); United

States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st Cir. 1985)

(Breyer, J.). The Eighth Amendment prohibits “excessive bail,”13

U.S. Const. amend. VIII, but the Constitution “says nothing about

whether bail shall be available at all,” Salerno, 481 U.S. at

752, or about the timing of bail determinations. Nevertheless,

because the bail process implicates a “vital liberty interest”

under the Fourteenth Amendment, the Supreme Court has said that

it must comport with due process requirements. United States v.

Montalvo-Murillo, 495 U.S. 711, 716 (1990) (citing Salerno, 481

U.S. at 739). And while not necessarily suggesting that due

process requires it, both the Supreme Court and our court of

appeals have said that the bail determination needs to be made

promptly. See id. (“A prompt hearing is necessary . . . .”);

Aside from a conclusory allegation of excessive bail, 13

Holder has not articulated why his bail (which he posted

immediately after his bail hearing) was excessive. Conclusory

allegations cannot withstand summary judgment. See Taylor, 576

F.3d at 24. 

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Acevedo-Ramos, 755 F.2d at 206 (acknowledging “the need to make

the bail decision quickly”). 

In establishing a presumptive 48-hour requirement for

probable cause hearings under the Fourth Amendment, the Supreme

Court emphasized that it wanted to give states enough time to

combine those hearings with other early-stage procedures,

including specifically the bail determination. County of

Riverside v. McLaughlin, 500 U.S. 44, 54 (1991). The clear

import of McLaughlin, then, is that a bail hearing held within 48

hours of a warrantless arrest is also presumptively

constitutional–-if indeed the Constitution speaks to that issue. 

See, e.g., Collins v. Ainsworth, 382 F.3d 529, 545 (5th Cir.

2004) (rejecting due process challenge to state’s 48-hour window

for bail hearings and confirming that “[t]here is no right to

post bail within 24 hours of arrest”). In this case,

approximately nine hours passed between Holder’s arrest and

subsequent release. That is well within the 48-hour window and

thus presumptively constitutional. 

The Supreme Court has said that the presumption of

constitutionality can be overcome--at least for probable cause

hearings --if the hearing is “delayed unreasonably.” 14

This court assumes, without deciding, that the same 14

analysis applies to bail hearings (which is the best-case

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McLaughlin, 500 U.S. at 56. “In evaluating whether the delay in

a particular case is unreasonable, however, courts must allow a

substantial degree of flexibility” and “cannot ignore the often

unavoidable delays in . . . handling late-night bookings where no

magistrate is readily available.” Id. at 56-57; see also 4 Wayne

R. LaFave et al., Criminal Procedure § 12.1(b), at 8 (3d ed.

2007) (noting that the bail hearing is “often the following

morning”). Here, Holder finished the booking process around

10:30 p.m., after normal court hours, and the bail commissioner

ordered his release at 6:44 a.m., before normal court hours. As

McLaughlin implies, that sort of overnight wait is neither

unusual nor unreasonable following an evening arrest. See, e.g.,

O’Neal v. Cook, No. 07-2803, 2009 WL 762207, at *4 (D. Minn. Mar.

19, 2009) (upholding overnight delay against constitutional

challenge); Parsons v. City of Rio Vista, No. 398-cv-0920-G, 2002

WL 83769, at *2 (N.D. Tex. Jan. 14, 2002) (same). 

Holder argues that the defendants should have arranged an

immediate bail hearing because they knew, by virtue of a

scenario for Holder). That assumption may not be warranted,

however, because probable cause is absolutely required for an

arrest under the Fourth Amendment, see Summers, 452 U.S. at 700,

whereas bail is not an absolute requirement, see Salerno, 481

U.S. at 752-53. It is possible, if not likely, that the

constitutional analysis is even more flexible with respect to the

timing of bail hearings.

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telephone call with the bail commissioner, that he was eligible

for release upon posting $2500 bail. But if that were an

exception, it would swallow the rule. Almost every non-capital 15

offense is bail-eligible. See, e.g., Petition of Streeter, 112

N.H. 305, 306 (1972) (“In this State bail before conviction is a

right that is protected and guaranteed by statute in noncapital

cases”) (citing N.H. Rev. Stat. § 597:1); Stack v. Boyle, 342

U.S. 1, 4 (1951) (“From the passage of the Judiciary Act of 1789

to the present . . . federal law has unequivocally provided that

a person arrested for a non-capital offense shall be admitted to

bail.”). The fact that the bail commissioner confirmed as much

is unremarkable and is not enough to create a constitutional

right to immediate bail where none otherwise existed. Cf. James

v. Griechen, No. 98-2245, 1999 WL 641867 (10th Cir. Aug. 24,

1999) (unpublished) (rejecting § 1983 claim that the officer

“knew that the magistrate planned to release [the suspect] on his

own recognizance and should therefore have released [him]”

immediately where the magistrate was unavailable).

Holder attempts to analogize this case to Wagenmann v.

Adams, 829 F.2d 196 (1st Cir. 1987), where the court of appeals

held that a police officer who “help[ed] to shape, and

It would also have the undesirable effect of discouraging 15

early discussions with the bail commissioner.

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exercis[ed] significant influence over, the bail decision” could

be held liable for the imposition of excessive bail even if not

statutorily authorized to set bail himself. Id. at 212. But

Wagenmann was a case of action that resulted in a clear violation

of the Eighth Amendment right against excessive bail; this is a

case of inaction that resulted in an overnight delay that was

presumptively constitutional. Moreover, Holder has not contested

the county jail’s assertion that it had no control over the bail

commissioner and could not release him until she arrived. See

N.H. Rev. Stat. § 597:2 (requiring an appearance before a judge

or bail commissioner before bail can be granted). If anything,

he seems to be complaining that the defendants did not exercise

enough influence over the bail decision by urging the bail

commissioner to hold a hearing in the middle of the night. 

Wagenmann presented the converse situation, where the officer had

unduly influenced the bail process. See id. (faulting the

officer in that case because he “did not merely arrest [the

suspect] and then step aside, letting an independent judicial

officer set bail”).

More illuminating here is Brady v. Dill, 187 F.3d 104 (1st

Cir. 1999), where police officers “came to believe, with some

degree of subjective certainty, that the man they had arrested

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. . . was innocent,” id. at 113, but nevertheless detained him

for 36 hours pending an initial hearing before the magistrate

judge. The court of appeals found no constitutional violation, 16

explaining that in “post-arrest cases, it is ordinarily

sufficient for the police officer to bring the relevant

information to the attention of the prosecutor or the proper

judicial official in a timeous fashion.” Id. at 115 (relying on

Baker v. McCollan, 443 U.S. 137 (1979)). Brady reflects the

fundamental “notion that our constitutional system places

responsibility for releasing a detainee on the judicial system,

rather than on law enforcement officers who have accomplished the

detention.” Holder, 638 F. Supp. 2d at 155. 

In this case, Holder concedes that the defendants informed

the bail commissioner of his arrest shortly after he arrived for

booking and that the bail commissioner knew he would be detained

overnight pending her arrival. Brady suggests that, at that 17

The police attempted in Brady to arrange an expedited bail 16

hearing before a bail commissioner, but the suspect insisted on

seeing a judge. That distinguishes Brady from this case as a

factual matter (as do a number of other facts cutting the other

way, such as the belief in the suspect’s innocence and the much

longer detention period), but its analytical framework is

nonetheless helpful in resolving the issue here. 

The bail commissioner is not a party to this case and, in 17

any event, would have quasi-judicial immunity from civil

liability for actions taken in that capacity. See, e.g., Briand

v. Morin, 2003 DNH 028 (DiClerico, D.J.).

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point, the defendants had fulfilled their basic obligation, i.e.,

“bring[ing] the relevant information to the attention of . . .

the proper judicial official in a timeous fashion.” If that is

all the Constitution ordinarily requires when the police believe

they have an innocent man in custody for 36 hours, then it is

hard to imagine that it requires anything more when the police

believe they have the right suspect and detain him for a much

shorter period of time.

Holder has not identified any authority that interprets the

Fourteenth Amendment to require that law enforcement officers

arrange a nighttime bail hearing after a valid evening arrest. 

Given how common it is for such hearings to be held the next

morning, see 4 LaFave, supra, § 12.1(b), at 8, the absence of

such authority is strong evidence that no such requirement

exists. Moreover, the Supreme Court has made clear that law

enforcement officers should be accorded a “substantial degree of

flexibility” in scheduling early-stage criminal procedures. 

McLaughlin, 500 U.S. at 57. Because Holder’s bail hearing was

conducted in a reasonably prompt manner, this court grants

summary judgment to the defendants on Holder’s challenge to the

length of his detention.18

Because the defendants had no obligation to arrange an 18

expedited bail hearing on the night of Holder’s arrest, this

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In addition to challenging the length of his detention,

Holder claims that the defendants had sinister motives for

detaining him. He alleges, in particular, that they

discriminated against him because he is African-American (in

violation of the Fifth and Fourteenth Amendments), retaliated

against him because he complained about his treatment (in

violation of the First Amendment), and “conspired together to

enter into a nefarious scheme” to detain him overnight so that

they could return to his house to search for incriminating

evidence (in violation of the Fourth Amendment). But none of

these allegations has even the faintest support in the summary

judgment record. To the contrary, the record indicates that the

defendants detained Holder pursuant to general laws and policies

that applied equally to all detainees. Because Holder’s claims

of improper motive rely on “improbable inferences” and

“unsupported speculation,” they cannot withstand summary

judgment. Taylor, 576 F.3d at 24. 

In sum, the county jail promptly notified the bail

commissioner of Holder’s arrest and had no constitutional

obligation to arrange a bail hearing before morning. Holder

court need not analyze their alternative rationale for detaining

him overnight, which is that he did not have a ride home as

required by the county jail’s nighttime release policy.

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offers no evidence to support his allegations of racism,

retaliation, or conspiracy. Summary judgment is therefore

appropriate on all of his detention-related claims.

C. State-law torts

Holder also brought an array of tort claims under New

Hampshire state law. All of them relate to the same topics 19

discussed above and fail for more or less the same reasons:

• Because the officers had probable cause to arrest Holder for

assault, see supra Part III.A.1, and because New Hampshire

law expressly authorized a warrantless arrest in his home,

see supra Part III.A.2, Holder cannot recover for false

arrest, trespass, or malicious prosecution. See, e.g., 20

In most cases, the dismissal of all federal claims before 19

trial “will point toward declining to exercise [supplemental]

jurisdiction over the remaining state-law claims.” CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). But there

is no “mandatory rule” requiring dismissal; courts must “consider

and weigh in each case, and at every stage of the litigation, the

values of judicial economy, convenience, fairness, and comity in

order to decide whether to exercise jurisdiction.” Id. In this

case, the close proximity to trial and the heavy overlap between

Holder’s federal and state-law claims both point in favor of

exercising jurisdiction. See, e.g., Nowak v. Ironworkers Local 6

Pension Fund, 81 F.3d 1182, 1192 (2d Cir. 1996). This court

therefore resolves Holder’s state-law claims as well.

The question of the legitimacy of the warrantless arrest 20

statute as a matter of federal law has no bearing on the

officers’ liability under New Hampshire law because, even if they

committed any of these torts, they have official immunity from

liability under state law. Their decisions were discretionary,

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Forgie-Buccioni v. Hannaford Bros., Inc., 413 F.3d 175, 179-

82 (1st Cir. 2005); Kay v. Bruno, 605 F. Supp. 767 (D.N.H.

1985).

• Because the officers used reasonable force to effectuate the

lawful arrest, see supra Part III.A.3, Holder cannot recover

for assault and battery. See, e.g., Statchen v. Palmer,

2009 DNH 137, 13 (DiClerico, D.J.). 

• Because his detention was lawful and the county jail had no

obligation to arrange a nighttime bail hearing under the

Constitution, see supra Part III.B, or under New Hampshire

law, see N.H. Rev. Stat. §§ 594:20-a and 597:1 et seq.,

Holder cannot recover for false imprisonment. See, e.g.,

Forgie-Buccioni, 413 F.3d at 181; MacKenzie v. Linehan, 158

N.H. 476, 482 (2009).

• Because the defendants have presented uncontested evidence

of adequate hiring, retention, training, and supervision,

Holder cannot recover for any of those claims (which he

conceded during an in-chambers conference before oral

argument).

made within the scope of their official duties, and neither

wanton nor reckless under the circumstances, particularly in

light of the statute. See Everitt v. Gen. Elec. Co., 156 N.H.

202, 219 (2007) (identifying those as the three requirements for

official immunity).

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• And because his negligent performance claim is essentially

just an amalgamation of these other claims, it too lacks

merit. See, e.g., Bryant, 163 F. Supp. 2d at 110.

IV. Conclusion

For the reasons stated above, the defendants’ motions for

summary judgment are GRANTED. The clerk shall enter judgment 21

accordingly and close the case.

SO ORDERED.

 

______________________________

Joseph N. Laplante

United States District Judge

Dated: February 3, 2010

cc: Sven D. Wiberg, Esq.

Brian J.S. Cullen, Esq.

Charles P. Bauer, Esq.

Jeanne P. Herrick, Esq.

Corey M. Belobrow, Esq.

Documents no. 37, 38, and 40. 21

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