Chapter 105: Police Officers and Watchmen

The selectmen of a town, when they deem it necessary, may appoint special police officers who shall continue in office during the pleasure of the selectmen, or until their successors are chosen or appointed. The selectmen may designate one of the police officers as chief of police or superintendent and as such officer the chief of police or superintendent shall exercise authority over and supervise or superintend other police officers, watchmen, or constables appointed under the provisions of this chapter, and said police officers, watchmen, or constables shall be accountable and responsible to said chief of police or superintendent. The designation as chief of police by the selectmen may be in the form of a contract specifying that the authority of the designee ceases on the date stated in the contract, regardless of whether a successor has been designated. Nothing herein shall be construed to preclude or prevent a town from electing constables or police officers at an annual town meeting pursuant to the provisions of RSA 41:47.

Such appointment shall be made in writing, under the hands of the selectmen, and recorded, with a certificate of the oath of office thereon, by the town clerk.

Subject to such written formal policies as may be adopted by the appointing authority, each chief of police, superintendent of police, or city marshal of any city or town who is appointed rather than elected, shall have authority to direct and control all employees of his or her department in their normal course of duty and shall be responsible for the efficient and economical use of all department equipment. Such chief, superintendent, or city marshal shall be subject to suspension without pay or dismissal only for cause, and after he or she has been presented with a written specification of the reasons. Upon such suspension or dismissal, he or she shall be entitled to a hearing, on the merits and reasonableness of the action, in superior court in the county in which the municipality is located, provided that he or she petitions the clerk of the superior court for such a hearing within 45 days of his or her suspension or dismissal. The court shall have the power to affirm, modify, or negate such suspension or dismissal, based upon its findings.

All police officers are, by virtue of their appointment, constables and conservators of the peace. They shall receive such compensation as may be voted by the town, and the same fees as constables.

I. Every police officer, while on active duty, shall wear on his uniform in a clearly visible place a name tag printed with his name. The tag shall be furnished to the officer by the state or political subdivision thereof which employs the officer at no cost to the officer.

II. This section shall not apply to a police officer on special duty when such duty requires that his identity as a police officer not be disclosed.

The selectmen, or superintendent under their direction, may employ police officers in the detection and conviction of criminals and the prevention of crime in their town, and in the preservation of order on public or special occasions.

The police officers of a town may make regulations for the stand of hacks, drays, public automobiles, and carts, in any street, lane, or alley; for the height and position of any awning, shade, or fixture in front of or near a building; and respecting any obstruction in any street, lane, or alley, or in any stable or other outbuilding.

Such regulations shall not take effect until they have been approved by the selectmen, and, together with such approval, have been recorded by the town clerk, nor until they have been published in some newspaper printed in the town, or, if there be none, until they have been posted in 2 or more public places in the town.

If a person violates any such regulation he shall be guilty of a misdemeanor.

I. Any person desiring to conduct a public dance, circus or carnival shall make application for police attendance at that function. Any person who conducts a public dance, circus, or carnival without first making application for police attendance at that function is guilty of a violation.

II. The chief of police in any city or town, subject to the written approval of the mayor and board of aldermen, board of selectmen, or licensing board shall examine applications for police attendance at public dances, circuses and carnivals and determine if such attendance is necessary. If the chief of police decides police attendance is necessary, he shall detail one or more police officers to attend whose services shall be paid for by the applicant.

III. The chief of police shall have the authority to assign police details to attend any public meetings or functions which he determines may potentially:

(a) Involve traffic-related problems; or

(b) Lead to a public disturbance or public nuisance; or

(c) Endanger public health, safety or welfare.

III-a. The applicant or sponsor of any public meeting or function may be charged for the services of any police officers that may be detailed or assigned to that meeting or function, unless charges authorized by this section for the services of a police officer are waived by the chief of police when in his judgment such authorization does not conflict with an existing local ordinance or policy.

IV. The chief of police, the police department, and any city, town, or political subdivision shall not be held liable for any decision not to detail police officers to attend any public meeting or function.

The chief of police in any city or town may, in order to meet the requirements set forth in RSA 105:9, employ certified police officers of any other town in this state to preserve order among the persons attending any public meeting or function. Such officers shall have the powers there which they have in the towns for which they are appointed, and their services shall be paid for by the sponsor of the public meeting or function.

The selectmen, being authorized by vote of the town, may appoint night watchmen, fix their stations and limits, prescribe their duties, and contract for and pay them a reasonable compensation.

They shall be appointed and qualified in the same manner, and shall have, while on duty, the same powers, as police officers.

Every watchman may arrest any person whom he shall find committing any disorder, disturbance, crime, or offense, or such as are strolling about the streets at unreasonable hours, who refuse to give an account, or are reasonably suspected of giving a false account, of their business or design, or who can give no account of the occasion of their being abroad.

I. The authority of any duly authorized police officer, constable or watchman of any town or city shall extend to any other city or town in the state, provided that the chief law enforcement officer of the requesting town or city has executed with the chief law enforcement officer of the responding town or city a written agreement which sets forth the terms and conditions under which such assistance may be requested or rendered. The executed agreement shall constitute authorization for every request for assistance, and for any assistance rendered in accordance with the terms and conditions of the written agreement, regardless of whether the responding police officer, constable, or watchman is named in the agreement. In an emergency situation, the ranking on-duty law enforcement official of a town or city is authorized to make an oral request for assistance to the ranking on-duty law enforcement official in the responding town, subject to the terms and conditions of such written agreement, and the authority of the responding police officer, constable, or watchman shall extend to the requesting town. The written agreement shall remain in full force and effect until terminated by the mutual consent of the chief law enforcement officers of each town or city, or until 10 days after the chief law enforcement officer of one town or city has received notification from the chief law enforcement officer of the other town or city of his or her intention to terminate.

II. Where no written agreement exists or no officer is available, any duly authorized police officer, constable, or watchman shall have temporary police authority in another jurisdiction in the state, when requested by a law enforcement officer from such jurisdiction in the state to render assistance to such officer under such officer's direction in an emergency for the purposes of making an arrest or effecting custody of a detainee, conducting a search, quelling a disturbance, providing traffic or crowd control, holding an arrested person in need of medical treatment in temporary custody until medically cleared to enter a state or county correctional facility or municipal jail, or securing a crime scene, until relieved by the requesting officer or otherwise directed by the ranking on-duty officer of the requesting jurisdiction.

III. Where no written agreement exists or no officer is available, any duly authorized police officer, constable, or watchman from a nearby town or city may exercise temporary police authority as necessary to respond to a crime in progress, traffic accident, natural or human-caused disaster, disturbance in progress, or other emergency, if requested by a public safety dispatch center authorized to dispatch for the jurisdiction where the event is occurring, because there is no local officer or state trooper available for immediate response and in the judgment of the dispatch center the public safety requires an immediate response. Such officer's authority shall terminate when relieved by an officer with authority in the jurisdiction receiving the assistance, unless the officer with authority requests assistance pursuant to paragraph II.

IV. When providing assistance under this section the officer shall remain an employee of his or her respective department.

The authority of any duly authorized certified police officer of a municipality located near the border of a neighboring state shall extend to any other municipality in the other state also located near such border, provided that the chief law enforcement officer of the requesting municipality has executed with the chief law enforcement officer of the responding municipality a written agreement which sets forth the terms and conditions under which such assistance may be requested or rendered. The executed agreement shall constitute authorization for every request for assistance, and for any assistance rendered in accordance with the terms and conditions of the written agreement, regardless of whether the responding police officer is named in the agreement. In an emergency situation, the ranking on-duty law enforcement official of the municipality is authorized to make an oral request for assistance to the ranking on-duty law enforcement official in the responding municipality, subject to the terms and conditions of such written agreement, and the authority of the responding police officer shall extend to the requesting municipality. The written agreement shall remain in full force and effect until terminated by the mutual consent of the chief law enforcement officers of each municipality, or until 10 days after the chief law enforcement officer of one municipality has received notification from the chief law enforcement officer of the other municipality of his intention to terminate.

I. Exculpatory evidence in a police personnel file of a police officer who is serving as a witness in any criminal case shall be disclosed to the defendant. The duty to disclose exculpatory evidence that should have been disclosed prior to trial under this paragraph is an ongoing duty that extends beyond a finding of guilt.

II. If a determination cannot be made as to whether evidence is exculpatory, an in camera review by the court shall be required.

III. No personnel file of a police officer who is serving as a witness or prosecutor in a criminal case shall be opened for the purposes of obtaining or reviewing non-exculpatory evidence in that criminal case, unless the sitting judge makes a specific ruling that probable cause exists to believe that the file contains evidence relevant to that criminal case. If the judge rules that probable cause exists, the judge shall order the police department employing the officer to deliver the file to the judge. The judge shall examine the file in camera and make a determination as to whether it contains evidence relevant to the criminal case. Only those portions of the file which the judge determines to be relevant in the case shall be released to be used as evidence in accordance with all applicable rules regarding evidence in criminal cases. The remainder of the file shall be treated as confidential and shall be returned to the police department employing the officer.

I. The department of justice may voluntarily maintain an exculpatory evidence schedule. The exculpatory evidence schedule shall consist of a list of all current or former law enforcement officers whose personnel information contain potentially exculpatory evidence. Subject to the provisions of this section, the exculpatory evidence schedule may be maintained by the department of justice and shall be a public record subject to RSA 91-A.

II. For officers on the exculpatory evidence schedule as of the effective date of this section:

(a) The department of justice shall, upon the effective date of this section, provide written notice to all such persons. This notice shall notify the individual that he or she is currently on the exculpatory evidence schedule, that he or she has 180 days from the date of notification to file a lawsuit in superior court regarding the officer's placement on the exculpatory evidence schedule after which any cause of action the officer might have to challenge his or her placement on the exculpatory evidence schedule shall be extinguished; however, for officers added to the exculpatory evidence schedule from April 30, 2018 to the effective date of this section, this notice shall state that the officer has 90 days from the date of notification to file a lawsuit in superior court regarding the officer's placement on the exculpatory evidence schedule, after which any cause of action the officer might have to challenge his or her placement on the exculpatory evidence schedule shall be extinguished.

(b) A person on the exculpatory evidence schedule is presumed to have received the officer-specific notice referenced in subparagraph II(a), 3 business days after the department of justice sent it via first class mail to the officer's last known address.

(c) Any lawsuit by an officer regarding his or her placement on the exculpatory evidence schedule shall name as a party to the lawsuit the law enforcement agency that recommended the officer's placement on the exculpatory evidence schedule. Any such lawsuit shall also provide the department of justice with notice that any such action has been filed. The law enforcement officer shall provide notice of any court order and the disposition of any such action to the department of justice at each stage of the proceedings. The department of justice shall have the right to intervene in any such matter at any time. Any claim seeking an order finding that the underlying misconduct is not potentially exculpatory shall name the department of justice as a party.

(d) One hundred and eighty days from the date of notification for officers added to the exculpatory evidence schedule prior to April 30, 2018, and 90 days from the date of notification for officers added to the exculpatory evidence schedule between April 30, 2018 and the effective date of this section, individuals and corresponding information on the exculpatory evidence schedule shall be made public, except for any individual with a pending legal action regarding the officer's placement on the exculpatory evidence schedule. Once the pending action has concluded with a final order, after exhausting any applicable appellate rights, the individual's name and corresponding information will become public unless:

(1) In a matter in which the department of justice is a party, a court issues an order finding that the underlying misconduct is not potentially exculpatory; or

(2) A court issues an order finding that the law enforcement agency erred in recommending that the officer be placed on the exculpatory evidence schedule.

(e) If the court issues an order finding that an officer did not receive adequate due process and remands the matter back to the law enforcement agency for further due process proceedings, then the officer's name shall not be publicly disclosed until the due process ordered is finally exhausted. If the officer subsequently ceases to pursue or does not challenge the alleged conduct leading to placement on the exculpatory evidence schedule through any applicable grievance process, then the officer's placement on the exculpatory evidence schedule shall become permanent and his or her name and corresponding information on the exculpatory evidence schedule shall become public. If the officer does challenge through any applicable grievance process the alleged conduct leading to placement on the exculpatory evidence schedule, then the officer's placement on the exculpatory evidence schedule shall become permanent and his or her name and corresponding information on the schedule shall become public only after the completion of the grievance process, and after the officer has exhausted all appellate rights, unless the grievance process determines that the alleged underlying potentially exculpatory misconduct was unfounded, not sustained, or that the officer was exonerated. In this section, the term "grievance process" means any process established by a collective bargaining agreement or by law that provides an employee an opportunity to contest an employment decision made by an employer.

III. For officers who are added to the exculpatory evidence schedule after the effective date of this section:

(a) Local law enforcement agencies shall send notice to the department of justice identifying the name and mailing address of any officer who they contend should be placed on the exculpatory evidence schedule, briefly describing why the officer should be placed on the schedule, describing how the officer was notified and afforded an opportunity to contest placement, and describing the grievance procedures available to that officer, including the timeline for filing a grievance.

(b) Upon receipt of notice by a law enforcement agency of an officer's placement on the exculpatory evidence schedule, the department of justice shall add the officer to the exculpatory evidence schedule and immediately provide written notice to the officer. The notice to the officer shall specify that the officer has been added to the exculpatory evidence schedule. The placement on the exculpatory evidence schedule shall be temporary and nonpublic unless and until the officer exhausts any grievance process. This temporary, nonpublic portion of the exculpatory evidence schedule shall not be a public record under RSA 91-A. If the officer ceases to pursue or does not challenge the alleged conduct leading to placement on the exculpatory evidence schedule through any applicable grievance process, then the officer's placement on the exculpatory evidence schedule shall become permanent and his or her name and corresponding information on the exculpatory evidence schedule shall become public. If the officer does challenge through any applicable grievance process the alleged conduct leading to placement on the exculpatory evidence schedule, then the officer's placement on the exculpatory evidence schedule shall become permanent and his or her name and corresponding information on the exculpatory evidence schedule shall become public only after the completion of the grievance process, and after the officer has exhausted all appellate rights, unless the grievance process determines that the alleged underlying potentially exculpatory misconduct was unfounded, not sustained, or that the officer was exonerated. The officer shall timely notify the department of justice of whether he or she is going through the grievance process concerning the conduct that led to placement on the exculpatory evidence schedule and the outcome of such proceedings.

IV. The department of justice shall at least monthly update the exculpatory evidence schedule within 30 days of this section's effective date on a publicly accessible website, with a notation indicating the date in which the exculpatory evidence schedule was updated.

V. Beginning on January 1, 2022, and quarterly thereafter, the department of justice, provided it continues to maintain the exculpatory evidence schedule, shall file a report with the governor, the president of the senate, the speaker of the house of representatives, and the chairpersons of the house and senate judiciary committees concerning compliance with this section. This report shall be made available to the public. This report shall include the total number of officers on the exculpatory evidence schedule, the number of officers who were sent notice under paragraphs II and III, the number of officers whose names have been disclosed to the public under each paragraph of this section, the number of officers who have filed lawsuits under this section, including the case name, number, jurisdiction, and corresponding field on the redacted exculpatory evidence schedule indicating the officer who has filed the lawsuit, and the number of people who are temporarily on the nonpublic exculpatory evidence schedule pending any grievance process. Nothing herein shall preclude the court from taking any necessary step to protect the anonymity of the officer before entry of a final order.

VI. Nothing in this section shall require the department of justice to maintain an exculpatory evidence schedule. Any obligations established under the provisions of this section shall apply only as long as the exculpatory evidence schedule exists. Nothing in this section shall relieve any prosecutor of their obligation to provide exculpatory evidence to criminal defendants.

I. For the purposes of this section, "misconduct" means assault, sexual assault, bribery, fraud, theft, tampering with evidence, tampering with a witness, use of a chokehold, or excessive and illegal use of force as defined by the New Hampshire criminal code.

II. It shall be the duty of any law enforcement officer who observes misconduct by another law enforcement officer to notify the chief law enforcement officer in his or her department in writing immediately or as soon as is practicable after observing such misconduct. Within 7 days of receiving such notification, the chief law enforcement officer shall notify the police standards and training council of such misconduct in writing. If the chief law enforcement officer is the subject of the misconduct report, the reporting officer shall report directly to the police standards and training council.

III. No discriminatory, disciplinary, or retaliatory action shall be taken against any officer for any information given or disclosed by him or her in good faith in the course of making a report of misconduct under paragraph II.

IV. Any police department that receives a report of misconduct under this section shall timely conduct an investigation and reach a determination on the merits. After the investigatory entity determines that the evidence shows that the individual committed any acts of misconduct, the name of the individual and any act of misconduct shall be disclosed to the police standards and training council.