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Unanimous Vermont Supreme Court Finds State Liable for Discriminatory Search and Seizure

by Matt Clarke

Earlier this year, the Supreme Court of Vermont issued a 51-page unanimous decision holding that, under Article 11 of the Vermont Constitution, law enforcement is liable for discriminatory searches and seizures.

On a snowy day in 2014, Gregory W. Zullo, who is black, was pulled over by former Vermont State Trooper Lewis Hatch. He allegedly stopped the then-21-year-old Zullo because of snow obscuring the registration sticker on his license plate. This was not a traffic violation at that time. Hatch told Zullo to exit his vehicle and then allegedly detected a faint odor of marijuana.

Hatch demanded he be allowed to search the car. Zullo refused. So Hatch seized the car, had it towed to a police station, and searched it there. Zullo was not charged with violating any laws but was forced to hitchhike home—eight miles in sub-freezing temperatures—wait several hours at the trooper barracks, and pay a $150 fee to get his car back.

During the civil trial, the state claimed that a grinder and a pipe with marijuana residue were found. In 2018, Vermont legalized possession of up to an ounce of marijuana.

With the assistance of ACLU of Vermont attorneys Lia Ernest and James Diaz, Zullo filed a state civil rights action alleging the seizure and search were racially motivated in violation of the Vermont Constitution. Hatch had a history of questionable searches of black men and was dismissed from his job in 2016. Rutland Superior Court Judge Helen Toor granted the state summary judgment, and Zullo appealed.

The National Association of Criminal Lawyers filed an amicus curaie brief with the Vermont Supreme Court supporting Zullo’s position. The brief was joined by several Vermont-based organizations: Migrant Justice, Vermonters for Criminal Justice Reform, the Root Social Justice Center, the Peace & Justice Center, Justice for All, and some local NAACP leaders.

The court ruled that there is an implied private right of action for damages under Article 11, the Vermont Tort Claims Act did not apply to an allegation of a constitutional tort, the action was not barred by sovereign immunity, and to obtain damages, Zullo must prove Hatch acted within the scope of his duties and knew or should have known that his actions violated clearly established law. Essentially, the court recognized a state system of constitutional torts similar to the federal constitutional torts set forth in 42 U.S.C. § 1983.

The court concluded that the order to exit the car would not have violated Article 11 had the initial traffic stop been lawful, but in this case, both the traffic stop and subsequent search violated Article 11.

“Police have enormous discretion to stop and search motorists, including for erroneous or pretextual reasons and on the basis of implicit or explicit bias,” said Ernst. “In ruling that police can be liable for such acts, this decision sends a clear message—no one is above the law, and if police make bad stops, they can and will be held accountable.”

The ruling did not specifically hold that Hatch engaged in racial profiling. Instead, it reversed the judgment and remanded the case to the Superior Court for a determination on that issue.

“Trooper Hatch pulled him over for something that a) wasn’t even a violation of law, and b) even if it were a violation of law, it’s next to impossible in Vermont in March to not have some snow on your license plate,” said Ernst. “Why did Trooper Hatch pick out our client rather than any other car with snow on its license plate? We can draw our own conclusions from that.”

An agreement was reached  June 20, 2019, between Zullo and the state police. Zullo will receive $50,000 plus mediation costs as part of the settlement.


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