UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John Collins

v. Civil No. 09-cv-78-JM

University of New 

Hampshire, et al.

O R D E R

Plaintiff John Collins is a tenured professor at the

University of New Hampshire (“UNH” or “the university”) who

brought this civil rights action following his June 2007 arrest

for disorderly conduct and criminal stalking of another professor

at the university. The charges were dismissed and he ultimately

was reinstated at the university, in January 2008. He now claims

his First, Fourth, Fifth, Ninth and Fourteenth Amendment rights

were violated by the university’s decisions to ban him from

campus and to suspend his professional relationship with the

school while the matter was investigated. Before the court is

defendants’ motion for judgment on the pleadings (document no.

10). Plaintiff objects (document no. 11). As explained below,

defendants’ motion is granted.

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 1 of 14
Discussion

1. Standard of Review

A motion for judgment on the pleadings is evaluated based on

the same standard as a motion to dismiss, which accepts all wellpleaded facts as true and draws all reasonable inferences in the

light most favorable to the non-moving party. See Citibank

Global Markets, Inc., v. Rodriguez Santana, 573 F.3d 17, 23 (1st

Cir. 2009) (citing authority); see also Remexcel Managerial

Consultants, Inc. v. Arlequin, 583 F.3d 45, 49 (1st Cir. 2009)

(citing 5 C. Wright & A. Miller, Federal Practice and Procedure §

1203)). “But to survive a motion to dismiss (or a motion for

judgment on the pleadings), the complaint must plead facts that

raise a right to relief above the speculative level, such that

entitlement to relief is plausible.” Citibank Global Markets,

573 F.3d at 23 (citations omitted); see also Perez-Acevedo v.

Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008)(citing Bell

Atlantic v. Twombly, 440 U.S. 544, 555-56 (2007)). 

With this standard in mind, I review the complaint. 

2. Count I - False Arrest/Disorderly Conduct

Plaintiff first asserts that his June 29, 2007 arrest for

disorderly conduct violated his Fourth Amendment rights, because

2

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 2 of 14
he was charged with a violation, not a crime, and, therefore,

under New Hampshire law should not have been arrested. See N.H.

Rev. Stat. Ann. (“RSA”) 644:2, VI (2007) (categorizing disorderly

conduct as a violation or misdemeanor), RSA 625:9, II (b) (Supp.

2009) (providing that violations are not crimes), & RSA 594:1, I

(2001) (defining “arrest” as taking someone into custody who has

been charged with a crime). The Fourth Amendment guarantees

that:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not 

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or 

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

U.S. Const., amend. IV. A claim for a violation of the Fourth

Amendment challenges the reasonableness of a search and seizure

and whether they were done with probable cause. See Acosta v.

Ames Dep’t Stores, Inc., 386 F.3d 5, 9 (1st Cir. 2004) (“When

there is probable cause for an arrest, the Fourth Amendment’s

prohibition against unreasonable searches and seizures is not

offended.”). In Count I, plaintiff asserts that his arrest for

disorderly conduct was an unreasonable “seizure” in violation of

the Fourth Amendment.

3

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 3 of 14
 Plaintiff alleges that on June 28, 2007, he was waiting for

the elevator in Rudman Hall, at UNH, with two other people. In

response to an inquiry from one of those two people, plaintiff 

“raised his voice and uttered epithets without naming any person” 

and then, less than a minute later, boarded the elevator with the

two other people. Plaintiff further alleges that based simply on

that exchange he was arrested the next morning for disorderly

conduct and stalking. See Compl. ¶¶ 9-11. Plaintiff represents

that the criminal complaint charged him with targeting Stacia

Sower, another professor at the university, though she was not

present when he made the challenged remarks. See id. The

disorderly conduct complaint charged plaintiff with engaging “in

violent, tumultuous or threatening behavior in a public place, in

that [he] did kick over a garbage can in the lobby . . . and

screamed repeatedly, said actions disturbing multiple co-workers

in the immediate area . . ..” See id. ¶ 11. Plaintiff admits

that his arrest for disorderly conduct was based on an arrest

warrant, but claims the arrest was unconstitutional because he

was charged with a violation, not a crime. See id. ¶¶ 27 & 28.

Defendants argue that Count I should be dismissed because

New Hampshire law in fact allows persons to be arrested based on

4

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 4 of 14
violations, citing State v. Miller, 115 N.H. 662, 664, 348 A.2d

345, 346-47 (1975). That case is still good law, and it both

controls the issue and disposes of plaintiff’s claim. As the New

Hampshire Supreme Court explained there:

“The purpose of classification is to provide

a framework whereby the relative seriousness

of offenses may be scaled and sentences 

authorized accordingly.” . . . [V]iolations

are retained in the criminal code by reason

of “the fact that use of the criminal process

of enforcement has been traditional.” It

thus appears that the classifications were 

for determination of punishments and were not

intended to affect the “criminal process of

enforcement.”. . . Until the enactment of 

the Criminal Code all “offenses” were either

misdemeanors or felonies and the term “crimes” 

and “offenses” were synonymous.. . . While 

for purposes of the Criminal Code a “violation” 

is an “offense” but not a “crime,” no such

distinction exists outside the Code.. . .

Relating the language of RSA 594:1 I (1974)1 to

other statues relating to arrest and criminal 

procedure indicates the use of the word “crime”

was not intended as a word of limitation but

rather to encompass broadly all offenses prohibited

by statue or ordinance.

Id. at 663-64 (quoting New Hampshire Criminal Code 625:9,

1That is the statutory definition of arrest, which refers to

answering for the “commission of a crime.” See RSA 594:1, I. 

The Criminal Code clearly differentiates offenses based on the

punishment to be imposed, see e.g. RSA 594:1, II & RSA 625:9, and

not on the enforcement process, which applies to all “offenders”

and explicitly allows arrests for violations. See e.g. RSA

594:7, 594:10 & 594:10-a.

5

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 5 of 14
Comments to 1969 Report (1975)). In Miller, the court held that

an arrest for a violation was proper. See id. at 664 (explaining

how breaches of municipal ordinances and similar violations are

not considered “crimes” and are punishable with only limited

fines yet arrest warrants may issue based on complaints of such

violations). 

Plaintiff counters that the issue presented by Count I is

whether a person may be arrested for a civil offense. He argues

that the “import of the criminal code is that a violation is a

civil offense” which “shall not give rise to any disability or

legal disadvantage based on conviction of a criminal offense.” 

See Pl.’s Mem. in Supp. of Obj. to Def.’s Mot. for J. on the

Pleadings (“Pl.’s Mem.”) at 3. This argument is flawed for two

reasons. First, violations in the criminal code, which plaintiff

acknowledges disorderly conduct is part of, are actually criminal

offenses, not civil offenses. See RSA 625:9, II (“Every offense

is either a felony, misdemeanor or violation.”). Second, as this

very argument concedes, the distinction between a violation and a

misdemeanor or felony turns on the punishment to be dispensed,

not the process by which the charges are enforced. See Miller,

115 N.H. at 664, 348 A.2d at 346 (citing Comments to the N.H.

6

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 6 of 14
Criminal Code). The fact that disorderly conduct may be a

violation simply does not preclude a person from being arrested

for the offending conduct. See id.; see also RSA 594:7

(providing for the arrest of any “offender”) & 594:10, I

(providing for warrantless arrests on a violation charge). 

It bears noting that plaintiff does not challenge the

validity of the arrest warrant. A warrant for an arrest cannot

be issued except upon probable cause. See U.S. Const. amend. IV. 

The probable cause threshold is not difficult to meet, requiring

only a reasonable belief, based on apparently trustworthy

information and the totality of the circumstances, that a crime

has been committed and the putative defendant was the

perpetrator. See Maryland v. Pringle, 540 U.S. 366, 370 (2003)

(“The probable-cause standard is a practical, nontechnical

conception that deals with the factual and practical

considerations of everyday life on which reasonable and prudent

men, not legal technicians, act.”); see also Acosta, 386 F.3d at

9 (citing authority to define probable cause); Gidley v. Oliveri,

641 F. Supp. 2d 92, 103 (D.N.H. 2009) (explaining an arrest

warrant grounded on reasonably trustworthy information is

constitutional). The portion of the criminal complaint quoted in

7

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 7 of 14
plaintiff’s complaint here, see Compl. ¶ 11, shows that the

arresting officer had enough information to believe he had

probable cause to charge plaintiff with disorderly conduct. The

underlying complaint, in particular the charge that plaintiff had

“screamed repeatedly . . . disturbing multiple co-workers,” id.,

demonstrates that the arresting officer understood plaintiff’s

conduct had persisted beyond the initial remarks and could

support a finding of probable cause to charge plaintiff with the

misdemeanor, rather than the violation, of disorderly conduct.2

In either event, there was probable cause to arrest plaintiff for

his disorderly conduct, as the warrant evidenced.

“When there is probable cause for an arrest, the Fourth

Amendment’s prohibition against unreasonable . . . seizures is

not offended.” Acosta, 386 F.3d at 9. Defendants are entitled

2Although plaintiff’s claim in Count I asserts disorderly

conduct is a violation, when disorderly conduct continues after

the offender has been asked to stop it is a misdemeanor, not a

violation. See RSA 644:2, VI (providing that the offense is a

misdemeanor “if [it] continues after a request by any person to

desist”). Plaintiff never states that he was charged with the

violation rather than the misdemeanor; he simply argues that

disorderly conduct is a violation. If plaintiff in fact was

charged with the misdemeanor offense, his arrest for disorderly

conduct was appropriate even under his erroneously narrow reading

of the arrest statute, since a misdemeanor is a crime. See RSA

625:9, II(a).

8

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 8 of 14
to judgment on Count I, because their arrest of plaintiff for

disorderly conduct based on a valid arrest warrant was not an

unconstitutional seizure in violation of the Fourth Amendment. 

3. Count II - False Arrest/Stalking

Plaintiff next challenges his arrest for stalking, in

violation of RSA 633:3-a. See Compl. ¶ 32. Plaintiff contends

that the arresting officer did not have probable cause to find a

“‘course of conduct’ consisting of two or more acts over a period

of time” or to find that plaintiff’s statement while waiting for

the elevator was a threatening communication, because “[a]

reasonable police officer . . . would have realized that the

outburst in question was . . . a single act.” Id. at ¶¶ 32-34. 

Because a “singular frustrated outburst” is not conduct that can

reasonably be understood as evidence of stalking, plaintiff

claims that his arrest on those charges was without probable

cause, in violation of the Fourth Amendment. Unlike count I,

count II directly challenges the validity of the arrest warrant.

An arrest warrant is constitutional if supported by probable

cause. See U.S. Const. amend. IV. As discussed supra, the

inquiry to determine whether there was probable cause to support

the issuance of a warrant is a generous one, considering what an

9

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 9 of 14
objectively reasonable and prudent officer would have understood

based on the facts and circumstances known to him. See Acosta,

386 F.3d at 9-10. When an arrest warrant issued by a judicial

officer is challenged, as plaintiff does in Count II, a reviewing

court must give “great deference” to the judge’s determination of

probable cause. See Gates, 462 U.S. at 236 (discussing probable

cause in the search warrant context); see also United States v.

McMullin, 568 F.3d 1, 6 (1st Cir. 2009) (same). “The task of the

issuing magistrate is simply to make a practical, common-sense

decision . . . given all the circumstances set forth in the

affidavit before him. . .. And the duty of a reviewing court is

simply to ensure that the magistrate had a substantial basis for

concluding that probable cause existed.” Gates, 462 U.S. at 238

(internal quotation omitted). The arrest warrant will be upheld

unless it was “‘so lacking in indicia of probable cause as to

render official belief in its existence unreasonable. . ..’” 

Afreedi v. Bennett, 517 F. Supp. 2d 521, 539 (D. Mass. 2007)

(quoting Malley v. Briggs, 475 U.S. 335, 344-45 (1986) to explain

probable cause in the qualified immunity context). (internal

quotation omitted)).

As alleged here, the criminal complaint on which the arrest

10

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 10 of 14
warrant was based stated that plaintiff had “recklessly engage[d]

in a course of conduct targeted at Stacia Sower which would cause

a reasonable person to fear for his or her personal safety and

Stacia Sower was actually placed in such fear. . ..” Compl. ¶

10. It also recites specific language, repeated three times by

plaintiff, which the arresting officer found to be threatening. 

See id. It is the facts as they are understood and sworn to by

the officer, not as they ultimately may be proven to have

transpired, that are the basis for the finding of probable cause. 

See Gates, 462 U.S. at 235 (explaining only reasonable suspicion,

not prima facie evidence, is required); see also Gidley, 641 F.

Supp. 2d at 103 (explaining the objective standard of a probable

cause finding). As alleged, see Compl. ¶ 10, Officer Whitten

believed plaintiff had said three separate times that he wanted

to hurt Stacia Sowers, which is enough for a judicial officer to

determine there was probable cause to charge plaintiff with

stalking. See U.S. v. McMullin, 568 F.3d 1, 7 (1st Cir. 2009)

(explaining that evidence provided to police officers by victims

or witnesses can support a finding of probable cause); see also

RSA 633:3-a, I(a) & II(a) (2007) (defining stalking as recklessly

engaging in a course of conduct of two or more acts over a period

11

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 11 of 14
of time, however short, targeted at a specific person which would

reasonably cause that person to fear for his or her personal

safety).

Plaintiff adamantly insists that Officer Whitten’s criminal

complaint, which was the basis for the arrest warrant, cannot be

accepted as true and “is in stark contrast to the operative facts

contained in ¶ 9 and Count II.” Pl.’s Mot. at 6. This argument

is misguided, however, because in assessing the probable cause

finding, the court is not accepting as true the facts as Officer

Whitten believed them to be when he wrote the underlying criminal

complaint.3 Instead, those facts are only reviewed to determine

the reasonableness of the judge’s decision that probable cause

existed to justify the issuance of an arrest warrant. That

standard is far lower than the evidentiary standard required to

prove that plaintiff was guilty of the charges lodged against

him. See Samos Imex Corp. v. Nextel Commc’ns, Inc., 194 F.3d

301, 303 (1st Cir. 1999) (comparing the lower standard of

3To the contrary, the probable cause finding may be based on

credible hearsay, which need not be ultimately correct, but which

must reasonably give rise to suspicions of criminal activity. 

See e.g. McMullin, 568 F.3d at 7 (allowing police officers to

rely on credible complaints of victims or witnesses); see also

Acosta, 386 F.3d at 10 (“there is no requirement that the officer

corroborate every aspect of every complaint with extrinsic

information”). 

12

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 12 of 14
probability required by the Fourth Amendment than is required by

the civil preponderance standard). “[A]rrests – made long before

all proof is assembled for a trial – can be justified as based on

probable cause by showing a reasonable basis for belief that a

suspect committed a crime; in many cases such a basis exists

without a 50 percent-plus likelihood that the suspect is guilty.” 

Id. As alleged in the Complaint, the October 2007 dismissal of

the charges against plaintiff illustrates this point perfectly. 

A finding of probable cause is simply not proof that someone is

guilty.

Accepting as true all the allegations in Count II, I find

that the arrest warrant for stalking was supported by probable

cause and, therefore, that plaintiff cannot state a claim that

his Fourth Amendment rights were violated when he was arrested on

June 29, 2007. Defendants are entitled to judgment on the

pleadings with respect to Count II.

Conclusion

For the reasons set forth above, defendants’ motion

(document no. 10) is granted. Defendants are entitled to

judgment in their favor on Counts I and II. Count I and Count II

are dismissed from this action.

13

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 13 of 14
SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 15, 2010 

cc: Paul McEachern, Esq.

 Martha Van Oot, Esq.

 

14

Case 1:09-cv-00078-LM Document 14 Filed 03/15/10 Page 14 of 14