A Vermont Supreme Court decision released Friday will allow a black man who argued that a 2014 traffic stop in Wallingford violated his civil rights to sue the state.

Gregory Zullo, 25, who was living in Rutland at the time, was stopped by Trooper Lewis Hatch in Wallingford. Hatch, who was dismissed from the Vermont State Police in 2016, said he stopped Zullo because his registration sticker was partially obscured by snow.

Hatch ordered Zullo to step out of the car. Zullo agreed and allowed Hatch to search his person, according to the Vermont Supreme Court decision. Zullo declined to allow Hatch to search his car.

Hatch seized the car so it could be searched. While Hatch would not drive Zullo back to Rutland, he offered to take him to a service station or call someone to give Zullo a ride, but Zullo declined and walked back to Rutland.

Hatch testified he had seized the car based on a faint smell of marijuana but a search of the car found nothing criminal.

Zullo filed a lawsuit in Rutland civil court against the state in September 2014, arguing that his rights had been violated because of the stop, the order to leave the car, the seizure of the car and the search of the car.

The civil court, however, ruled in favor of the state, finding that Hatch’s actions had not violated Article 11 of the Vermont Constitution, which protects Vermonters from unreasonable search and seizure.

The Vermont Supreme Court decision, written by Justice Harold Eaton Jr., concludes that the state can be held responsible and sued for damages based on the actions of a state employee.

“The common-law doctrine of sovereign immunity does not preclude such an action, even though the (Vermont Tort Claims Act) is not applicable. A plaintiff must show either a violation of clearly established law, which the actor knew or should have known he or she was violating or bad faith, which may take the form of discriminatory animus. In this particular case, we conclude that the stop and seizure of (Zullo’s) car constituted violations of Article 11,” Eaton wrote.

The case was returned to the civil court through the 50-page decision.

In a press release from the American Civil Liberties Union of Vermont, staff attorney Lia Ernst, who argued the case in May, called the decision a “major victory for all Vermonters, but especially for Vermonters of color like … Zullo.”

“Police have had enormous discretion to stop and search motorists, including for erroneous or pretextual reasons and on the basis of implicit or explicit bias. 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,” Ernst said.

Charity Clark, chief of staff at the Vermont attorney general’s office, said Friday afternoon that based on the length of the decision, her office was “reviewing it to decide how to best proceed from here.”

While the decision found Zullo could seek damages from the state, Zullo will not be able to directly allege racial discrimination according to a footnote.

“The state notes in its brief that (Zullo) did not make an equal protection claim or allege racial discrimination in its complaint. Although (Zullo) has consistently suggested throughout these proceedings that Trooper Hatch’s stated reasons for his actions were driven by implicit discriminatory bias, he has made no equal protection claim under the Common Benefits Clause and cannot do so on remand. He may, however, in the context of his Article 11 claim, seek to demonstrate that he can produce evidence in which a factfinder could find malice in the form of discriminatory bias, which is one of the elements established in this opinion for such a claim,” Eaton wrote.

There were no dissenting opinions to the decision.

Restoring the civil suit, the high court rejected a suggestion from the Vermont attorney general’s office that administrative action against a police officer could be a remedy for someone whose rights were violated.

“If that were the case, no damages claim would ever lie against a public official. Even if a confidential internal affairs investigation resulted in some disciplinary action against a law enforcement officer … it would offer no remedy to individuals deprived of their constitutional rights, other than the knowledge that the offending officer may or may not have been disciplined, which may or may not result in others being spared a similar deprivation of their rights,” Eaton wrote.

The decision upholds qualified immunity for police officers in many cases even though the court found the circumstances in the Zullo case to be an illegal stop.

“On a daily basis, law enforcement officers must make numerous decisions on how to handle interactions with citizens, particularly motorists. Even with liability falling on the State rather than the individual officer, a rule that exposes the state to a potential civil damages suit following every roadside stop, or whenever a motion to suppress is granted, could inhibit law-enforcement officers from taking some effective and constitutionally permissible actions in pursuit of public safety. This would not be an appropriate result,” Eaton wrote.

patrick.mcardle @rutlandherald.com

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