Officer Received Adequate Due Process Before Being Placed On Brady-Type List

John Gantert began working as a police officer in Rochester, New Hampshire in March 2005. For six years he was viewed as a “good and productive officer” and had no disciplinary actions reflected in his personnel file. Upon beginning his shift on March 24, 2011, Gantert was instructed to assist another officer in booking an individual arrested for domestic violence. As part of the Department’s standard operating procedure in domestic violence cases, an officer interviews the victim and fills out a Lethality Assessment Protocol (LAP) form, which assists in gauging the degree of violence and potential danger to the victim.

Before ending his shift, the arresting officer had interviewed the victim, completed the LAP, and sent it to the county attorney. Gantert was not aware that the LAP had been completed and incorrectly believed that, pursuant to departmental policy, it was required to be sent to the county attorney with the rest of the arrest paperwork. After unsuccessfully attempting to contact the arresting officer or the victim, Gantert watched a videotaped interview of the victim by the arresting officer and completed a second LAP based upon information he learned from the interview. If a question on the LAP could be answered affirmatively based upon the video, he answered “yes”; if a question could not be so answered, he answered “no.” The interview, which pertained only to the incident for which the accused had been arrested, did not cover many of the questions on the LAP, which mainly ask about past acts or behaviors.

This resulted in the LAP completed by Gantert being materially different from the one completed by the arresting officer. The original LAP, completed with information from the victim, resulted in almost all of the questions being answered “yes,” which triggered the protocol; the LAP completed by Gantert had almost all “no” answers, which would not trigger the protocol. Gantert signed the arresting officer’s name and sent the second LAP to the county attorney. At no time did Gantert consult with a superior or another employee as to how to proceed in light of the fact that he had no knowledge of the answers to many of the LAP questions.

The county attorney discovered the conflicting LAPs and referred the matter to the Department. After an internal affairs investigation, the Police Chief decided to terminate Gantert for, among other things, dishonesty. The Chief also notified Gantert that his actions could be “Laurie material” (the Brady rule in New Hampshire is known as the Laurie rule, so-named after a decision of the New Hampshire Supreme Court), and that he intended to notify the county attorney. The Chief scheduled a meeting with Gantert to provide him with an opportunity to discuss the Chief’s intent to notify the county attorney’s office of the fact that Gantert’s personnel file could contain Laurie material; citing advice from union counsel, Gantert declined to attend. The Chief and the Union agreed that the Chief would not notify the county attorney of the Laurie issue until after the police commission made a final decision.

On June 16, 2011, the Rochester Police Commission voted to uphold the Chief’s decision to terminate Gantert’s employment. After this decision, the Chief sent a letter to the county attorney stating that “the Rochester Police Department has an internal affairs file which could possibly be construed to contain issues relevant to State v. Laurie. This file affects Gantert.”

An arbitrator reversed Gantert’s termination, finding that while Gantert was dishonest, his conduct merited a lengthy suspension rather than a discharge. After the Arbitrator’s decision, Gantert requested that both the Chief and the county attorney remove his name from the Laurie List. Both declined, and Gantert sued, claiming he had not been provided with due process before being placed on the list.

The New Hampshire Supreme Court rejected the lawsuit. The Court held that “Gantert had multiple opportunities to be heard – by the investigating officer, the Chief, and the police commission. His real complaint about the procedure appears to be that he does not agree with the decisions made by these various officials. The procedure he advocates might be more in-depth, but it is not clear that it would add significantly to the accuracy of outcomes versus the procedure already in place.

“Given the government’s strong interest in meeting its constitutional Brady obligation, and its interest in not delaying placement of officers on the list, the procedures implemented in this case struck the proper balance. Here, there was an internal investigation – which Gantert does not allege was unfairly or improperly conducted – two layers of review within the department, an opportunity to meet with the Chief, and a hearing before the police commission. There is no need for a more formalized hearing or additional process before an officer is placed on the Laurie List.”

Gantert v. City of Rochester, 2016 WL 1069042 (N.H. 2016).