*1 NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
On Appeal from v. Superior Court, Rutland Unit,
Civil Division State of Vermont May Term, 2018 Helen M. Toor, J.
Lia Ernst and James Diaz, ACLU Foundation of Vermont, Montpelier, for Plaintiff-Appellant. Thomas J. Donovan, Jr., Attorney General, and Eve Jacobs-Carnahan and David R. Groff, Assistant Attorneys General, Montpelier, for Defendant-Appellee.
Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Amicus Curiae Office of the Defender General.
Jeffrey T. Dickson of Dickson Law Office, PLLC, Burlington, Lindsay A. Lewis, New York,
New York, and Dahlia Mignouna and Chad I. Golder of Munger, Tolles & Olson LLP, Washington D.C., for Amici Curiae National Association of Criminal Defense Lawyers, et al. David Tartter, Deputy State’s Attorney, Montpelier, for Amicus Curiae Department of State’s Attorneys and Sheriffs.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ. EATON, J. In this civil rights action against the State of Vermont, plaintiff seeks
declaratory relief and money damages for alleged violations of Article 11 of the Vermont Constitution arising from the stop, seizure, and search of his vehicle. The civil division of the superior court granted summary judgment to the State, concluding that although damages may be *2 obtained in an implied private right of action directly under Article 11, in this case neither the stop, the exit order, nor the seizure and search of plaintiff’s vehicle violated Article 11’s constraints against governmental searches and seizures. At issue in this appeal is: (1) whether Article 11 provides a self-executing right of
action for damages; (2) whether the Vermont Tort Claims Act (VTCA) governs any such action and, if not, whether the common law doctrine of sovereign immunity shields the State from liability; (3) if the action is neither governed by the VTCA nor barred by sovereign immunity, whether this Court should impose any limitations on obtaining damages against the State; and (4) assuming a damage remedy exists and plaintiff can potentially overcome any other barriers to obtaining damages against the State, whether the stop, exit order, and/or seizure and search of plaintiff’s vehicle violated plaintiff’s rights under Article 11, thereby entitling him to seek such relief. We conclude that an implied private right of action for damages is available directly
under Article 11, that the VTCA does not apply to plaintiff’s suit alleging a constitutional tort, and that the common law doctrine of sovereign immunity does not bar such an action against the State, but that damages may be obtained only upon a showing that a law enforcement officer acting within the scope of the officer’s duties either acted with bad faith or knew or should have known that those actions violated clearly established law. We further conclude that although the exit order would not have violated Article 11 had the initial stop been lawful, both the stop and the warrantless seizure of plaintiff’s vehicle violated Article 11. In light of our resolution of the legal issues before us, we reverse the superior court’s grant of summary judgment in favor of the State, as well as its dismissal of one of plaintiff’s counts in an earlier decision, and we remand the matter for further proceedings consistent with this opinion. As explained below, the parties are not precluded from submitting renewed motions for summary judgment based on the law established in this opinion.
I. Facts and Procedural History
A. Facts “Summary judgment is proper only where the material undisputed facts show that
the moving party is entitled to judgment as a matter of law.” Morisseau v. Hannaford Bros., 2016
VT 17, ¶ 12,
American [2] male, had just finished his work shift at his place of employment in the Town of *4 Killington and was driving alone in the Town of Wallingford to see a friend. Lewis Hatch, a state trooper, was on duty in a marked state police vehicle. Trooper Hatch was in his vehicle at a Wallingford gas station when plaintiff drove by. The trooper pulled out of the station and followed plaintiff through Wallingford. He activated his vehicle’s emergency blue lights and stopped plaintiff shortly after three o’clock in the afternoon. Because the microphone in Trooper Hatch’s shirt was either not working or not
turned on, his interactions with plaintiff outside the range of the recording system in the trooper’s vehicle were not recorded. Following the stop, Trooper Hatch approached the passenger-side window of plaintiff’s car and asked plaintiff to provide his driver’s license and registration. Plaintiff did so and explained to the trooper that he was coming from his work; plaintiff declined, however, to answer the trooper’s questions as to where he was going. The trooper stated in his warrant application that he smelled a faint odor of burnt marijuana as he approached plaintiff’s car, but during his interaction with plaintiff he did not deploy the drug-detection dog he had in his vehicle. Trooper Hatch observed an air freshener affixed to the center air vent in plaintiff’s car and a small bottle of Visine in the car’s center console. In response to the trooper’s questioning, plaintiff told the trooper that he had smoked marijuana three days prior to the stop. [3] Any initial suspicion Trooper Hatch had that plaintiff was driving while impaired was quickly dispelled during the trooper’s questioning of plaintiff.
stop); 3 V.S.A. § 168(f)(1)g(2) (establishing panel to “review and provide recommendations to address systemic racial disparities in statewide systems of criminal and juvenile justice,” and requiring, among other things, continual review of data collected pursuant to 20 V.S.A. § 2366(e)(1) and submission of recommendations for training law enforcement officers and others “to recognize and address implicit bias”).
[3] The superior court noted that the parties disagreed as to whether plaintiff acknowledged smoking marijuana in the car in the past and that, according to Trooper Hatch, plaintiff equivocated as to how many days it had been since he smoked marijuana. We do not find that either of these disputes concern material facts.
¶ 7. Trooper Hatch ordered plaintiff to exit his car, but did not ask plaintiff to perform any field sobriety exercises. At some point after ordering plaintiff out of his car, in response to plaintiff’s inquiry, the trooper told plaintiff for the first time that he had stopped him because there was snow partially obscuring the registration sticker affixed to his car’s license plate. Plaintiff consented to Trooper Hatch’s request that he submit to a search of his person, which did not reveal any evidence of contraband or a crime. Trooper Hatch then read plaintiff a consent card, advising him that if he did not agree to have his car searched, the car would be towed to the state police barracks while the trooper applied for a search warrant. Plaintiff refused to consent to a search of his car. Approximately twenty minutes after the initial stop, Trooper Hatch radioed for a tow truck. Trooper Hatch declined to give plaintiff a ride to his home in Rutland, but he offered
to drop plaintiff off at a nearby gas station or call someone to pick him up. Plaintiff declined these offers, and he wound up walking and hitchhiking to his home eight miles away. After arriving at the Rutland police barracks, Trooper Hatch applied for a search warrant, which was issued at approximately seven o’clock in the evening. At the barracks, a certified drug detection dog alerted twice on the trunk of plaintiff’s vehicle. A search was completed at seven-thirty in the evening. The search turned up a metal grinder and a small pipe with residue later identified as marijuana, but no evidence of a criminal offense. Plaintiff’s vehicle was not released to plaintiff until approximately ten o’clock in the evening after he paid the required $150 towing fee.
B. Procedural History In September 2014, plaintiff filed suit against the State, alleging four counts of
violations of Article 11 of the Vermont Constitution: (1) an unlawful traffic stop without reasonable suspicion of any traffic violation; (2) an unlawful exit order without reasonable suspicion of danger or the commission of a crime; (3) an unlawful seizure of his car without probable cause; and (4) an unlawful search of his car without probable cause. He sought a *6 declaration that Trooper Hatch’s actions were illegal, an award of damages for the violations of his rights, and an award of costs. In November 2014, the State filed a motion to dismiss counts two, three, and four,
but not count one. In March 2015, the superior court denied the State’s motion as to counts two
and three, but it granted the motion as to count four concerning the alleged unlawful search. The
court concluded that the alleged facts with respect to counts two and three concerning the exit
order and seizure of plaintiff’s car were sufficient to overcome the State’s motion to dismiss. See
Samis v. Samis,
Vermont’s then-recent law decriminalizing the possession of less than one ounce of marijuana, see 18 V.S.A. § 4230a(a), 2013 No. 194 (Adj. Sess.), § 13 (effective June 17, 2014), insofar as plaintiff alleged that the search warrant was issued even though Trooper Hatch failed to cite any evidence suggesting that plaintiff’s car contained more than one ounce of marijuana. In dismissing this count, the court relied mainly on the Legislature’s pronouncement that marijuana is still contraband subject to seizure and forfeiture unless lawfully used for medicinal purposes and that the decriminalization of less than one ounce of marijuana is “not intended to affect the search and seizure laws afforded to duly authorized law enforcement officers.” Id. § 4230a(c)(2). Moreover, the court concluded that the warrant application was not defective merely because it referenced evidence of a criminal offense rather than evidence of contraband. Following its dismissal of count four, the court granted plaintiff’s motion to add a fifth count alleging that the search of his car was unlawful because Trooper Hatch dishonestly stated in his warrant application that he expected to find evidence of a crime. *7 After the parties completed discovery that included taking the depositions of
plaintiff and Trooper Hatch, they filed cross-motions for summary judgment. The State asserted that summary judgment should be entered on count one because the stop was lawful and because the trooper’s actions were protected by qualified immunity. With respect to counts two, three, and five, the State argued that the totality of the circumstances justified the exit order and the seizure and search of plaintiff’s vehicle. The State also argued that even if Trooper Hatch erred in assessing whether reasonable suspicion or probable cause existed to support the exit order and seizure of plaintiff’s vehicle, either qualified immunity or sovereign immunity barred plaintiff’s action. Plaintiff responded that the State waived its sovereign immunity, either through the VTCA or Article 11 itself, and that Trooper’s Hatch’s qualified immunity did not extend to the State. Plaintiff further argued that none of the statutes or caselaw relied upon by the State provided legal justification for Trooper Hatch to stop plaintiff, order him to exit his vehicle, or seize and search his vehicle. In May 2017, the superior court granted the State’s motion for summary judgment
and denied plaintiff’s cross-motion for summary judgment. The court concluded that: (1) the VTCA is inapplicable because it concerns only common law torts and because no private analogs exist for Trooper Hatch’s actions; (2) Article 11 provides an implied private right of action for damages against the State; and (3) money damages are an appropriate remedy if liability is found because there is no viable alternative remedy. The court granted the State’s motion for summary judgment, however, based on its determination that Trooper Hatch’s actions did not violate Article 11. The court concluded that: (1) any mistake of law by Trooper Hatch in stopping plaintiff based on a partially obscured registration sticker was objectively reasonable and thus did not rise to an actionable violation of Article 11; (2) the faint smell of burnt marijuana, in combination with the presence of the air freshener and bottle of Visine, provided Trooper Hatch with reasonable suspicion to order plaintiff to exit his car; and (3) even though the air freshener and Visine lost *8 their probative value after Trooper Hatch’s concerns about plaintiff’s possible impaired driving were dispelled, the faint smell of burnt marijuana alone provided probable cause to seize plaintiff’s car and obtain a warrant to search the car—notwithstanding the fact that possession of less than one ounce of marijuana was only a civil infraction at the time of the stop. Plaintiff appeals, arguing that: (1) in assessing whether the stop in this case violated
Article 11, which offers more protection than the Fourth Amendment, this Court should not follow
the U.S. Supreme Court’s recent holding that reasonable suspicion to support a traffic or
investigatory stop may rest upon a police officer’s reasonable mistake of law, see Heien v. N.
Carolina, ___ U.S. ___,
The State responds that: (1) the superior court was correct in holding that the VTCA does not grant jurisdiction for plaintiff’s claims; (2) Article 11 does not provide jurisdiction for a private right of action against the State because the State is protected by its sovereign immunity and because alternative remedies exist; [6] (3) Trooper Hatch’s stop of plaintiff’s car did not violate Article 11 because it was objectively reasonable for him to believe that plaintiff was in violation of a motor vehicle law; and (4) notwithstanding the then-existing marijuana decriminalization law, reasonable suspicion supported the exit order and probable cause supported the seizure and search of plaintiff’s car. In its amicus curiae brief, the Department of State’s Attorneys and Sheriffs argues that this Court should follow Heien and hold that traffic stops based on an officer’s objectively reasonable mistake of law satisfy the reasonable suspicion standard and thus do not violate Article 11.
II. The Vermont Tort Claims Act and Sovereign Immunity We first address the State’s argument that no private right of action may be implied
directly under Article 11 because the State has not waived its sovereign immunity to any such action either under the VTCA or any other legislation. According to the State, Vermont courts lack jurisdiction over plaintiff’s lawsuit, notwithstanding his claims of constitutional violations, because plaintiff has failed to identify a statutory waiver of sovereign immunity, which the State *10 contends is necessary before he can sue the State for damages. [7] The State concurs with the superior court’s assessment that plaintiff’s constitutional tort claim does not fit within the VTCA’s waiver provisions, arguing that the Act applies only to ordinary common law torts and that there are no private analogs for Trooper Hatch’s actions within the scope of his duties. The State argues, however, that, absent any other legislation explicitly waiving sovereign immunity for constitutional torts, plaintiff’s suit against the State is barred for lack of jurisdiction. Plaintiff responds that an explicit legislative waiver of sovereign immunity is not required to obtain a damages remedy under a self-executing constitutional provision for a violation of one’s constitutional rights under that provision. Plaintiff agrees with the State and the superior court that his constitutional tort claim should not proceed through the VTCA because the Act does not apply to constitutional claims. He also argues, however, that even if the Act applied to his constitutional claims, it would not bar those claims because common law torts such as unlawful trespass and false imprisonment provide private analogs for his claims and because the discretionary function exception in the Act does not apply to unconstitutional or unlawful conduct.
A. The Vermont Tort Claims Act As noted, the superior court agreed with the State that the VTCA does not govern
plaintiff’s lawsuit for two interrelated reasons: the Act applies only to ordinary common law torts and only where there is a private analog—in other words, where the cause of action is comparable *11 to one available against a private citizen. The court rejected plaintiff’s arguments that his lawsuit was analogous to actions against private individuals for trespass to chattel, false imprisonment, and invasion of privacy. The court concluded that because the ultimate question—whether Trooper Hatch acted in conformance with plaintiff’s constitutional rights—turned on purely governmental functions, his lawsuit could not be treated as analogous to a common law claim against a private party. “[T]he primary purpose of the VTCA is to waive sovereign immunity for
recognized causes of action, particularly for common law torts.” See Kennery v. State, 2011 VT
121, ¶ 26,
Federal Tort Claims Act (FTCA),
[8]
“is primarily directed at the ‘ordinary common-law torts.’ ”
*12
Denis Bail Bonds, Inc. v. State,
analog torts, he does not demonstrate that his “factual allegations satisfy the necessary elements
of a recognized cause of action.” Kane v. Lamothe,
[9] We have pointed out that a situation involving a private analog is distinct from one in
which a state employee commits a common law tort “for which the source of their employment is
unconnected to the duty of care”—for example, a traffic accident on the way to a meeting.
Kennery,
*13
plaintiff’s constitutional rights turns on law enforcement responsibilities that have no private
analog. See Dorwart v. Caraway,
¶ 21. Indeed, the limited federal case law under the FTCA suggests that no private analog
exists here. Cf. Casillas v. United States, No. CV 07-395-TUC-DCB (HCE),
B. Sovereign Immunity Having determined that the VTCA does not govern plaintiff’s lawsuit, we consider
the State’s argument that Vermont courts lack jurisdiction over constitutional tort claims absent an
express statutory waiver of sovereign immunity. Whether the common law doctrine of sovereign
immunity stands as a bar to constitutional torts absent an explicit legislative waiver is a difficult
question with which few courts have grappled. See Shields v. Gerhart,
King can do no wrong” is not inviolate. See Levinsky v. Diamond,
sovereign immunity bars constitutional torts against the State absent an explicit legislative waiver.
See Stevens v. Stearns, 2003 VT 74, ¶¶ 8-9, 175 Vt. 428, 833 A.2d 835 (declining to address
plaintiffs’ inadequately briefed claim that state was not entitled to sovereign immunity from their
suit seeking damages for state employees’ violation of their Article 11 rights); Shields v. Gerhart,
*15
In a more recent case in which we upheld the liability of a municipality sued for
damages directly under the Common Benefits Clause of the Vermont Constitution, we reiterated
the preeminence of the Vermont Constitution over legislative and judge-made law. See In re Town
Highway No. 20,
It would indeed be a fanciful gesture to say on the one hand that citizens have constitutional individual civil rights that are protected from encroachment actions by the State, while on the other hand saying that individuals whose constitutional rights have been violated by the State cannot sue because of the doctrine of sovereign immunity.
Corum v. Univ. of N.C.,
sovereign immunity serves as an absolute bar to constitutional torts absent an explicit legislative
waiver. See T. Hunter Jefferson, Constitutional Wrongs and Common Law Principles: The Case
for the Recognition of State Constitutional Tort Actions Against State Governments, 50 Vand. L.
Rev. 1525, 1541-43 (1997) (citing state courts that have accepted or rejected doctrine of sovereign
immunity as bar to constitutional torts, either based on tort claims act or incompatibility of doctrine
with constitutional violations). Compare Corum,
(stating that “existence of a self-executing constitutional right does not entail waiver of the state’s sovereign immunity from suit based upon such a right” and reasoning that self-executing constitutional provision, absent language implicating sovereign immunity, “merely creates a right that does not need further legislative action in order to become operable against nonsovereigns”).
¶ 27. The Vermont Constitution neither declares the State immune from all damages stemming from violations of its provisions nor specifies that the State retains any immunity not expressly waived by the State. Accordingly, in light of the reasoning in our prior caselaw discussed above, we conclude that the common law doctrine of sovereign immunity is not an absolute jurisdictional bar to Vermont courts considering constitutional tort actions. Our conclusion that the common law doctrine of sovereign immunity cannot
jurisdictionally bar suits alleging constitutional torts does not mean that the Legislature lacks
authority to limit or confine such suits in any way. See Bosh v. Cherokee Cty. Bldg. Auth., 2013
OK 9, ¶¶ 14, 23,
in determining the scope and limits of sovereign immunity, we conclude that the judge-made
doctrine does not supersede the right of the people to seek redress from the State for violations of
fundamental constitutional rights. Invoking absolute sovereign immunity to prevent a remedy for
significant breaches of constitutional rights would undermine the fundamental protections
provided by our state constitution, which exists “to dictate certain boundaries to the government.”
*18
J. Friesen, supra, § 8.08[1], at 51 (citing “strong policy argument” that invoking sovereign
immunity for breaches of bill of rights aimed at curtailing government power “would make a
mockery of constitutional democracy”). The theory that one cannot assert a wrong against the
government that created the law upon which the asserted rights depend has no force with respect
to constitutional rights, which “are created by the citizenry to govern the government.” Id. at 52.
We recognize that plaintiff’s action against the State in this case is based on
vicarious rather than direct liability. We note that this is consistent with the legislative policy set
forth in the VTCA. See 12 V.S.A. § 5602(a) (providing that exclusive right of action is against
State for state employees’ acts or omissions within scope of employment that cause injury)
[11]
; see
also 3 V.S.A. § 1101(a) (providing in relevant part that in civil action against state employees
alleging damage or deprivation of rights arising from performance of employees’ official duties,
State is obligated to defend action and provide legal representation on behalf of employees). More
significantly, “the State is appropriately held answerable for the acts of its officers and employees
because it can avoid such misconduct by adequate training and supervision and avoid its repetition
by discharging or disciplining negligent or incompetent employees.” Brown v. State, 674 N.E.2d
1129, 1142-43 (N.Y. 1996); see Bosh,
¶ 31. In short, the common law doctrine of sovereign immunity does not act as a jurisdictional bar to plaintiff’s civil damage suit against the State alleging that a state officer deprived him of the protection from government interference guaranteed by Article 11 of the Vermont Constitution.
III. Implied Private Right of Action Directly Under Article 11 Having determined that the VTCA is inapplicable and that the common law
doctrine of sovereign immunity is not a jurisdictional bar to plaintiff’s lawsuit, we turn to the
question of whether plaintiff may seek damages in an implied action directly under Article 11.
This is an issue of first impression for this Court. See Stevens,
A. Self-Executing As we explained in Shields, a constitutional provision is self-executing if it provides
sufficient direction by which the right at issue might be protected; whereas it is not self-executing
if it merely states a general principle without establishing any basis on which that principle may
be enforced. Id. at 224,
*20
Under this test, there is little doubt that Article 11 is self-executing. Indeed, search-
and-seizure provisions such as Article 11 are the paradigmatic self-executing provisions. Article
11’s federal counterpart, the Fourth Amendment, is the constitutional provision in which the U.S.
Supreme Court first recognized a direct constitutional damage remedy. See Bivens, 403 U.S. at
397. Search-and-seizure provisions have also been the basis of direct constitutional damage
actions accepted in other jurisdictions. See, e.g., Binette v. Sabo,
B. Alternative Remedies Our conclusion that Article 11 is self-executing means that the right set forth therein
does not “need further legislative action to become operative”; however, “[i]t does not necessarily
mean that monetary damages are the proper remedy for a violation.” Id. at 227-28, 658 A.2d at
930. The second part of our inquiry is to determine “if monetary damages are an appropriate
remedy for the constitutional violation.” Town Highway, 2012 VT 17, ¶ 35. “Determining
whether a constitutional tort merits monetary relief . . . necessarily compels a careful inquiry into
the precise nature of the injury alleged and the adequacy of existing remedies to redress it.” Id.
¶ 36. A constitutional damage remedy is most appropriate when “damages must be recognized to
give a plaintiff some remedy.” Shields,
The standard remedy for an Article 11 violation in a criminal context—the exclusionary rule—provides no relief to the instant plaintiff, who was not charged with a crime. The State argues, however, that each of the following remedies is a sufficient alternative to suing the State for damages: (1) an action against Trooper Hatch pursuant to 42 U.S.C. § 1983; (2) injunctive relief prohibiting the State from stopping vehicles with covered registration stickers [12] or from issuing exit orders based on suspicion that the driver possessed less than one *22 ounce of marijuana; (3) administrative relief by way of Vermont Rule of Criminal Procedure 41 or 18 V.S.A. §§ 4241-4248, which provide procedures for reclaiming seized or forfeited property; (4) an administrative complaint against the individual officer accused of improper conduct; and (5) the assertion of rights in a criminal proceeding, including filing a motion to suppress, had plaintiff been criminally charged as result of the incident in question. We conclude that none of the State’s proffered alternative remedies would provide
meaningful redress to plaintiff for the constitutional transgressions he alleges. Generally, 42
U.S.C. § 1983 “creates a remedy for violations of federal rights committed by persons acting under
color of state law.” Howlett v. Rose,
Notwithstanding these impediments, some courts have found § 1983 to be a viable
alternative remedy to a direct private right of action for damages under certain provisions of their
state constitutions. See State v. Heisey,
This Court has followed other courts in inferring a private right of action under
various state constitutional provisions because “[w]hile certain wrongs may find redress under
federal law, we recognize the inherent and independent value in the rights and protections
enshrined in our own constitution.” Town Highway,
¶ 41. The State’s reliance on injunctive relief as an alternative remedy is equally
unavailing. As the U.S. Supreme Court noted in Bivens, “damages have been regarded as the
ordinary remedy for an invasion of personal interests in liberty.”
exists here in the potential to reclaim property under Vermont Rule of Criminal Procedure 41 or to seek return of forfeited property under 18 V.S.A. §§ 4241-4248. There is no indication that plaintiff made any claim for seized or forfeited property, which would be the case in many, if not most, instances involving an unlawful search and seizure. In this case, the extent of plaintiff’s property loss would have been, at most, a metal grinder and a pipe containing marijuana residue. Return of such property would hardly provide a meaningful remedy for the alleged violation of his constitutional rights. Nor do we find merit in the State’s suggestion that an administrative complaint
would be a viable alternative. If that were the case, no damages claim would ever lie against a *25 public official. Even if a confidential internal affairs investigation resulted in some disciplinary action against a law enforcement officer, 20 V.S.A. § 1923(d) (providing that records of internal investigation shall be confidential with specific exceptions), 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. The simple answer to the State’s argument that plaintiff could have filed a motion
to suppress had he been charged with a crime is that he was not—and apparently could not
successfully have been—charged with a crime. “The interest protected by Article 11, like the
Fourth Amendment, is the expectation of the ordinary citizen, who has never engaged in illegal
conduct . . . .” State v. Bryant,
in a potential common law tort action against the allegedly offending officer. Cf. Long v.
*26
L’Esperance, 166 Vt. 566, 568, 701 A.2d 1048, 1050 (1997) (“Following his arrest by [state
trooper] on charge of disorderly conduct, plaintiff brought this action alleging unlawful arrest,
false imprisonment, assault, battery, and intentional infliction of emotional distress.” (citation
omitted)). As the U.S. Supreme Court stated in Bivens, “[t]he interests protected by state laws
regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment’s
guarantee against unreasonable searches and seizures, may be inconsistent or even hostile.” 403
U.S. at 394; see Binette, 710 A.2d at 699 (noting “important distinction between the tortious
misconduct of one private citizen toward another, on the one hand, and the violation of a citizen’s
constitutional rights by a police officer, on the other”); Dorwart,
viable remedy for someone subjected to an allegedly unconstitutional search or seizure, most particularly in a case like this where plaintiff was not charged with a crime. In addition to providing a compensatory remedy for particular individuals whose constitutional rights have been violated by state officials, the adjudication of constitutional torts has played a critical role in establishing specific constitutional limits on governmental power in a way that could not be provided by injunctive relief or common law actions. See J. Park, supra, at 396, 450-53. For the reasons discussed above, we conclude that a private right of action seeking money damages for violations of Article 11 is available directly under that constitutional provision absent any adequate alternative legislatively enacted remedy.
C. Limiting Principle The question remains, however, whether this Court should impose any limitations
on this judicially recognized constitutional damage remedy. In Town Highway, we stated that the caution we raised in Shields about creating a private damage remedy when the Legislature had not created an alternative civil remedy was “magnified in the context of recognizing a tort remedy under the broad mandate of Article 7.” 2012 VT 17, ¶ 36. We concluded, therefore, that in addition to requiring a plaintiff to show the absence of an adequate alternative remedy to vindicate the interest asserted, it was “necessary and appropriate to establish stringent additional requirements to obtain monetary relief for a violation of Article 7.” Id. ¶ 37. We held that a plaintiff alleging a constitutional tort claim pursuant to Article 7, the Common Benefits Clause, would have to show that: (1) the plaintiff was denied a common benefit; (2) the denial favored another individual or group over the plaintiff; and (3) the decision to deny the benefit to the plaintiff not only “was wholly irrational and arbitrary, but also . . . actuated by personal motives unrelated to the duties of the defendant’s official position, such as ill will, vindictiveness, or financial gain.” Id. We stated that this last element was necessary to “defer to any reasonable and just basis supporting a discretionary judgment by a government decisionmaker” and “to bar routine suits aimed merely at forcing a political body to change its decision, not through representative politics, but through judicial action.” Id. ¶¶ 37-38 (quotation omitted).
The superior court rejected the State’s argument that any establishment of a constitutional tort with respect to alleged violations of Article 11 should be limited by stringent requirements similar to those set forth in Town Highway. The court rejected this argument in a
footnote, summarily stating that recognizing a private right of action under Article 11 would not
result in a flood of litigation for routine law enforcement actions and that there is no need for a
heightened standard of proof to secure damages because Article 11 provides its own standard—
the unreasonable exercise of authority by a state actor. On appeal, plaintiff argues that the superior
*28
court correctly rejected a heightened standard for establishing a private damage remedy under
Article 11 and that a qualified immunity limitation is unnecessary to prevent a chilling effect on
law enforcement officers when the State rather than the individual officer is subject to liability.
In considering whether a rigorous standard is appropriate to limit a private damage
remedy directly under Article 11, we first note that the U.S. Supreme Court has applied an
objective qualified immunity limitation on Bivens actions—the constitutional tort progenitor that
itself involved a claim of an unlawful search under the Fourth Amendment. See Butz v.
Economou, 438 U.S. 478, 507 (1978). We recognize that we are not bound by federal law
concerning Bivens actions and that such actions are brought against government officials rather
than the government itself. We also recognize that the U.S. Supreme Court has suggested that
there would be less of a deterrent effect on unlawful government action in a suit brought against a
governmental agency rather than a government official.
[13]
See F.D.I.C. v. Meyer,
*29
State courts are divided on whether to allow the government to assert common law
defenses such as qualified immunity or other limitations in civil rights suits seeking damages for
breaches of state constitutional provisions. G. Gildin, supra, at 902-03. Compare Clea v. Mayor
and City Council of Balt., 541 A.2d 1303, 1314 (Md. 1988) (“To accord immunity to the
responsible government officials, and leave an individual remediless when his constitutional rights
are violated, would be inconsistent with the purposes of the constitutional provisions.”), and
Dorwart, 2002 MT 240, ¶¶ 68-69 (holding that qualified immunity is not applicable to claims
alleging violation of rights guaranteed by state constitution because it would be inconsistent with
constitutional requirement that courts afford remedy for claims recognized by law), with Moresi,
notably, in Martinez v. City of Schenectady,
claims had jurisdiction over a constitutional tort claim seeking damages for unconstitutional
searches. The suit in Brown was a class action brought by nonwhite males who were stopped and
searched by officers investigating a crime, but who were never charged with a crime. A later
constitutional tort case was brought by a plaintiff whose drug conviction had been reversed on
appeal because it was based on evidence obtained pursuant to an invalid search warrant. In that
case, the New York Court of Appeals stated that the constitutional tort remedy it had recognized
in Brown was “not boundless” and that, in addition to proving that their constitutional rights had
*30
been violated, claimants had to “establish grounds that entitle[d] them to a damages remedy.”
Martinez,
We conclude that, in the absence of any applicable legislation addressing
constitutional torts, restrictions similar to those imposed in Town Highway are appropriate and
necessary in civil actions seeking damages for violations of Article 11. The principal concerns
that caused us in Town Highway to impose limitations on obtaining damages for claimed
deprivations of common benefits, in violation of Article 7, were the potential flood of litigation
for every alleged constitutional violation and the potential chilling effect on citizens serving on
local boards.
id. ¶ 57 (stating that imposing restrictions on constitutional torts “serves the equivalent function of
the qualified immunity doctrine” and acts “as a buffer against liability in all but the most egregious
of cases”); see also M. Wells, Civil Recourse, Damages-As-Redress, and Constitutional Torts, 46
Ga. L. Rev. 1003, 1038-39 (2012) (noting that U.S. Supreme Court has justified qualified
immunity “as an accommodation between the social value in compensating the plaintiff and
deterring constitutional violations, on the one hand, and the social need to avoid overdeterrence of
bold and effective official action, on the other”); L. Rosenthal, A Theory of Governmental
Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. Pa. J. Const. L. 797, 800, 856
(2007) (opining that although discretionary and categorical immunities are inappropriate for
constitutional violations, damages-limiting doctrines such as qualified immunity are appropriate
to “protect the interests of the taxpayers and avoid unwarranted reallocation of scarce public
resources”); cf. Anderson v. Creighton, 483 U.S. 635, 643-44 (1987) (rejecting plaintiff’s
argument in Bivens action “that it is inappropriate to give officials alleged to have violated the
Fourth Amendment—and thus necessarily to have unreasonably search or seized—the protection
of a qualified immunity intended only to protect reasonable official action”). Although we have
rejected herein a blanket governmental immunity from constitutional tort actions, we are cognizant
of our need to be cautious when judicially recognizing potential damage liability to be imposed on
another branch of government. See D. Dobbs et al., The Law of Torts § 334, at 331 (2d ed. 2011)
(retaining limited immunity prevents judicial branch from intruding upon functions of legislative
and executive branches through adjudication of tort suits); see also Meyer,
the State directly under Article 11 based on a law enforcement officer’s alleged violation of that
*32
constitutional provision must show that: (1) the officer violated Article 11; (2) there is no
meaningful alternative remedy in the context of that particular case; and (3) the officer either knew
or should have known that the officer was violating clearly established law or the officer acted in
bad faith. Cf. Spackman,
faith that in some instances would require the factfinder to make an objective assessment of the
officer’s subjective motivations. We recognize that the U.S. Supreme Court has abandoned a
subjectively based malice component that would defeat a qualified immunity defense, reasoning
that a judicial inquiry into subjective motivation might entail broad-ranging discovery that is
inherently incompatible with immunity from suit. See Harlow v. Fitzgerald,
IV. The Alleged Violations
A. The Stop
Having rejected the State’s claim of blanket immunity and established the standard
for evaluating plaintiff’s constitutional tort claim, we now examine each of the alleged Article 11
violations. Plaintiff first challenges Trooper Hatch’s decision to stop his vehicle. The law on
vehicle stops is well-settled. Like the Fourth Amendment, Article 11 “protect[s] citizens against
unreasonable searches and seizures.” State v. Manning,
cause to believe that the person being seized has engaged in criminal activity, the lesser standard
of reasonable suspicion of either criminal activity or even a minor traffic violation can form the
basis of a valid temporary stop. State v. Tuma,
“The level of suspicion required for a lawful investigatory stop is considerably less
than a preponderance of the evidence, but it must be more than an inchoate and unparticularized
suspicion or hunch.” State v. Thompson,
justifying the stop and, if there was not, whether this Court should adopt under Article 11 the U.S.
Supreme Court’s holding in Heien that a stop based on a law enforcement officer’s objectively
reasonable mistake of law as to whether there was a motor vehicle violation may “rise to the
reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.”
[14]
Heien, ___
*36
U.S. at ___,
The State relies upon the then-current version of 23 V.S.A. § 511 to support
Trooper Hatch’s stop of plaintiff’s vehicle. The statute, titled “Manner of display,” is within the
of distinguishing mistakes of law and fact, see People v. Glick,
[15] As noted by Justice Sotomayor’s dissent in Heien, all but one of the federal circuit
courts, and five states, had previously “held that police mistakes of law [could not be] a factor in
the reasonableness inquiry.” ___ U.S. at ___ n.1,
[16] In Lussier, the defendants in separate consolidated cases challenged motor vehicle stops
based on their contention that they had not violated the statutes at issue. We upheld one conviction,
concluding that the State had demonstrated a reasonable and articulable basis for the stop because
the defendant violated the statute, and we reversed the other conviction, concluding that the State
had failed to demonstrate a reasonable and articulable basis for the stop because the defendant did
not violate the statute. Lussier,
A motor vehicle operated on a public highway shall have displayed in a conspicuous place either one or two number plates as the commissioner of motor vehicles may require. Such number plates shall be furnished by the commissioner of motor vehicles, showing the number assigned to such vehicle by the commissioner. If only one number plate is furnished, the same shall be securely attached to the rear of the vehicle. If two are furnished, one shall be securely attached to the rear and one to the front of the vehicle. The number plates shall be kept entirely unobscured, the numerals and the letters thereon shall be plainly legible at all times. They shall be kept horizontal, shall be so fastened as not to swing, excepting however, there may be installed on a motor truck or truck tractor a device which would, upon contact with a substantial object, permit the rear number plate to swing toward the front of the vehicle, provided such device automatically returns the number plate to its original rigid position after contact is released, and the ground clearance of the lower edges thereof shall be established by the commissioner pursuant to the provisions of chapter 25 of Title 3. A person shall not operate a motor vehicle unless the number plates are displayed as provided in this section.
23 V.S.A. § 511 (2014) (emphasis added). We enforce unambiguous statutes according to their plain language to effectuate
legislative intent, without the need to resort to legislative history. State v. Porter,
requirement that number plates “be kept horizontal,” a police officer stopped the defendant’s vehicle based on his observation that one side of the front license plate was one to two inches below the other side. Without finding the need to examine § 511’s legislative history, we upheld the trial court’s grant of the defendant’s motion challenging the legality of the stop, holding that “a proper reading of the statute” is “that a license plate ceases to be ‘horizontal’ when the angle of the license makes it difficult for a person with normal vision to read it.” Tuma, 2013 VT 70, ¶¶ 12, 14. Because the prosecution had failed to present any evidence that the numerals or letters on the plate were not legible as the result of the plate’s positioning, it could not show that the officer had reason to suspect that the defendant had violated § 511, which was aimed at ensuring the visibility and readability of number plates. Id. ¶¶ 8, 15.
The same is true here. Even if we were to adopt the Heien concurrence allowing
seizures based on a law enforcement officer’s objectively reasonable mistake as to the meaning of
a genuinely ambiguous statute, it would not benefit the State in this case because the statute at
issue is not genuinely ambiguous, and thus the State cannot show that Trooper Hatch had an
objectively reasonable basis for concluding that plaintiff had violated the statute.
[17]
*39
Our conclusion is supported by the Legislature’s enactment of the 2014
Amendment to § 511, which plainly created a new statutory obligation by requiring that
registration stickers be unobstructed. See Doe v. Vt. Office of Health Access, 2012 VT 15A, ¶ 26,
(a) . . . . The number plates shall be kept entirely unobscured, and the numerals and the letters thereon shall be plainly legible at all times.
. . . .
(b) A registration validation sticker shall be unobstructed, and shall be affixed as follows:
. . . .
(c) A person shall not operate a motor vehicle unless number plates and a validation sticker are displayed as provided in this section.
2013, No. 189 (Adj. Sess.), § 4. Thus, there were three changes to § 511. First, the word “and” was inserted
between the two clauses of section (a)—thereby indicating that henceforth keeping the number
plates entirely unobscured is an additional requirement and not merely tied to the purpose of
keeping the number plates’ letters and numbers legible to allow identification of vehicles. Id.
Second, section (b) was added to require that validation stickers be unobstructed. And third, the
phrase “and a validation sticker” was added to the last sentence of § 511, thereby indicating that
henceforth a person operating a motor vehicle must display as provided a validation sticker in
addition to number plates. Id. These three changes complement each other and demonstrate that
of law pursuant to Fourth Amendment); see also State v. Dopslaf,
the Legislature amended § 511 to add the requirement that registration stickers be displayed and kept unobscured, thus making the failure to display an unobscured validation sticker a motor vehicle violation. The State points to the then-current version of 23 V.S.A. § 305(c), which at the time
of the stop in question provided, in relevant part, that “no plate is valid for the second and succeeding years unless the [registration] sticker is affixed to the rear plate in the manner prescribed by the Commissioner.” The same act that amended § 511 amended § 305(c) to remove the words “for the second and succeeding years” and add the phrase “in section 511 of this title.” 2013 No. 189 (Adj. Sess.), § 3. Nothing in the plain language of the then-current version of § 305(c) provided Trooper Hatch with a reasonably objective belief that plaintiff was in violation of a motor vehicle law when he stopped plaintiff’s vehicle. [18]
*41
Accordingly, we conclude that Trooper Hatch’s stop of plaintiff’s vehicle violated
Article 11 because it was not supported by a reasonable and articulable suspicion that plaintiff had
committed a motor vehicle violation. Although our inquiry would most likely end at this point if
this were an appeal from a criminal conviction or a civil suspension violation, in which the fruits
of any illegal stop would be suppressed, in this civil constitutional tort action against the State, we
must examine plaintiff’s other allegations that his Article 11 rights were violated during the
incident in question. See Townes v. City of New York,
torts are analogous to common law actions aimed at compensation, and thus they generally employ
the principle of proximate cause to determine damages; whereas, the fruit of the poisonous tree
doctrine disregards traditional causation analysis to serve the objective of deterring unlawful police
conduct by creating an incentive for state actors to respect suspects’ constitutional rights. Id. at
145-46. Because “[t]he fruit of the poisonous tree doctrine is not available to elongate the chain
of causation,” id. at 146, and “constitutional tort liability . . . is limited to the kind of injury that
[the constitutional right at issue] was designed to prevent,” id. at 148 (quotation omitted, alteration
in original), “police-civilian interactions [are] discrete links that must be analyzed largely
independent of what came before or after; damages are tied tightly to the specific right associated
with each link and tend not to expand into other stages of the interactions.” Willis v. Mullins, No.
1:04-CV-6542 AWI BAM,
¶ 70. Because a jury could determine that one or more of the alleged Article 11 violations does not satisfy the elements for seeking damages to remedy the alleged violations, we must examine each of the alleged violations.
B. The Exit Order Plaintiff also argues that his Article 11 rights were violated when Trooper Hatch
ordered him to exit his car. In Sprague, this Court held that an exit order following a traffic stop
offends Article 11 unless “the objective facts and circumstances would support a reasonable
suspicion that the safety of the officer, or of others, was at risk or that a crime has been committed.”
Here, nothing in the record suggests that Trooper Hatch feared for his safety or the
safety of others—and the State makes no such argument. Thus, to pass muster under Article 11,
the exit order must have been based on reasonable suspicion of criminal wrongdoing, which must
*43
arise from “specific and articulable facts” rather than an “inchoate and unparticularized suspicion
or hunch.” See State v. Alexander,
upon by the superior court. Operating a motor vehicle while under the influence of alcohol or “any other drug” was a criminal offense at the time of the stop and remains so. 23 V.S.A. § 1201(a)(2)- *44 (3); [20] see 18 V.S.A. § 4230a(c)(1) (2017) (stating that section decriminalizing adult possession of less than one ounce of marijuana “does not exempt any person from arrest or prosecution for being under the influence of marijuana while operating a vehicle of any kind and shall not be construed to repeal or modify existing laws or policies concerning the operation of vehicles of any kind while under the influence of marijuana”); see also 2017, No. 86 (Adj. Sess.), § 4 (deleting § 4230a(c)(1) but adding equivalent language in § 4230a(b)(2)). Trooper Hatch indicated that he detected the faint odor of burnt marijuana when he approached plaintiff’s car after stopping plaintiff. He also observed items that, although they have perfectly common and legal uses, he knew from his experience in law enforcement to be used to mask the effects of marijuana use. In his deposition testimony, Trooper Hatch indicated that the faint odor of burnt marijuana emanating from plaintiff’s car and the redness of plaintiff’s eyes [21] aroused his suspicion that plaintiff was driving while impaired, but he agreed that his suspicion of plaintiff’s impaired driving dissipated during the course of his discussions with plaintiff. Although it is not entirely clear from the record when Trooper Hatch’s suspicion of impairment dissipated, that may have occurred following the exit order, as the superior court suggested in its decision. We conclude that the faint smell of burnt marijuana, in conjunction with the
trooper’s observations of items that may be used to mask the effects of smoking marijuana,
provided the trooper with an articulable and reasonable basis to order plaintiff to exit his vehicle
to determine whether plaintiff was driving impaired. Cf. State v. Young,
C. The Seizure and Search of Plaintiff’s Vehicle The subsequent seizure and search of plaintiff’s vehicle, which had to be supported
by probable cause rather than the less-rigorous standard of reasonable suspicion, is another matter,
however. See State v. Platt,
burnt marijuana as a justification for the vehicle’s seizure and subsequent search. The court
*47
concluded that that was enough. We disagree. We have concluded “that the odor of marijuana,
detected by a trained and experienced police officer, can provide a reasonable basis to believe that
marijuana is present,” but also “that the odor alone may not always be sufficient [to provide
probable cause] to arrest an individual.” Guzman,
is relevant to the totality of the circumstances test and can contribute to a probable cause determination.”). In Guzman, a police officer stopped the defendant for speeding and, following the
stop, “detected the distinct odor of marijuana coming from defendant’s vehicle.”
In another case in which we considered the odor of marijuana as a factor in
determining whether probable cause existed, State v. Senna,
small possibility that someone in the residence was a registered medical patient immune from
prosecution, “the trial court properly considered the odor of fresh marijuana emanating from
defendant’s home in assessing probable cause to search his residence.” Id. ¶ 16; see State v.
Greenslit,
necessarily a determinative factor, as to whether probable cause exists. See Guzman, 2008 VT 116, ¶¶ 13-14 (agreeing with courts that treat odor of marijuana as factor in totality-of- circumstances test rather than those courts concluding that odor of marijuana alone can provide probable cause to believe that marijuana is nearby). [22] The weight of that factor in determining *49 whether probable cause exists generally depends not only the nature and strength of the odor and other factors accompanying the odor, but also how those factors relate to the offense being investigated. While adjectives assessing the strength of an odor may be subjective and unhelpful at times in assessing whether probable cause exists, see Commissioner v. Overmyer, 11 N.E.3d 1054, 1059 (Mass. 2014) (stating that “characterizations of odors as strong or weak are inherently subjective”), the faint smell of burnt marijuana is far less probative as to whether a car contains marijuana than, say, an overpowering odor of fresh marijuana emanating from the trunk of a car. Given the circumstances of this case and considering our relevant caselaw examined above, we conclude that Officer Hatch’s seizure of plaintiff’s vehicle violated plaintiff’s rights under Article 11. The seizure, aimed at immobilizing plaintiff’s vehicle while the officer sought a search warrant, was essentially based solely on the trooper’s initial detection of the faint odor of burnt marijuana, which did not, in and of itself, create a fair probability that marijuana would be found in the vehicle. The other factors posited by the State—the presence of an air freshener and a bottle of Visine, in addition to plaintiff’s statement that he had smoked marijuana in the past few days—did not add any probative evidence to establish probable cause to support the seizure. In its March 2015 order dismissing plaintiff’s count alleging that the information
supplied by Trooper Hatch did not support the search warrant, the superior court concluded that
the probable existence of any amount of marijuana supported the issuance of a warrant to search
for contraband. Plaintiff briefly argues on appeal that the court failed to consider whether issuance
of the search warrant was unreasonable under the circumstances of this case and that, even if a
Warrantless Search of Motor Vehicle Based on Odor of Marijuana—State Cases, 114 A.L.R.5th
173 (2003) (collecting cases in which courts found or did not find probable cause for warrantless
searches based on odor of marijuana and other factors); E. Lauzon, Annotation, Odor Detectable
by Unaided Person as Furnishing Probable Cause for Search Warrant,
warrant could be issued for a suspected civil violation, the search could not stand because the preceding seizures were illegal. The critical difference between the seizure of plaintiff’s vehicle and the issuance of the search warrant was Officer Hatch’s statement in his warrant application, in addition to the other bases he alleged for seeking the warrant, that a dog certified to detect the presence of narcotics, including marijuana, had alerted twice on the trunk of plaintiff’s vehicle at the police barracks. This unchallenged statement, in addition to the other indicia of drug use discussed above, established probable cause to issue the warrant. Accordingly, the issuance of the warrant does not constitute a basis for damages pursuant to plaintiff’s lawsuit.
V. Summary In sum, we conclude that a direct private right of action for damages based on
alleged flagrant violations of Article 11 is available against the State. The common law doctrine of sovereign immunity does not preclude such an action, even though the VTCA 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 plaintiff’s car constituted violations of Article 11. Accordingly, we reverse the superior court’s summary judgment ruling in favor of the State. Because the parties heretofore have not had the opportunity to address the elements of a direct action under Article 11 as established in this opinion, we remand the matter to give them an opportunity to file renewed motions for summary judgment, if they so choose. We make no pronouncement at this juncture as to whether the facts of this case are sufficient or insufficient to survive a renewed motion for summary judgment. [23]
The superior court’s dismissal of plaintiff’s count 4 in its March 10, 2015 decision and its grant of summary judgment to the State in its May 10, 2017 decision are reversed; the matter is remanded for further proceedings consistent with this opinion.
FOR THE COURT: Associate Justice
demonstrate that he can produce evidence in which a factfinder could find bad faith in the form of discriminatory bias, which is one of the elements established in this opinion for such a claim.
Notes
[1] The superior court briefly summarized the facts and stated that the material facts are undisputed. Given our resolution of the legal issues presented in this appeal, some of the facts that are disputed could conceivably impact any assessment of liability or any potential damage remedy.
[2] Plaintiff does not make an equal protection claim, but throughout this case he has intimated that the stop, seizure, and search of his vehicle were the result of implied racial bias and racial profiling. In one of the amicus curiae briefs aligned with plaintiff, we are asked to consider, in determining whether and under what circumstances to allow a direct private right of action under Article 11, numerous studies indicating that implicit racial bias is a real and significant problem, not only nationally, but also in Vermont. See S. Seguino & N. Brooks, Driving While Black and Brown in Vermont (January 9, 2017), https://www.uvm.edu/giee/pdfs/SeguinoBrooks_Police Race_2017.pdf [https://perma.cc/BEA6-6F7V]; S. Seguino & N. Brooks, Racial/Ethnic Disparities in Traffic Stops: Analysis of Vermont State Police Data, 2010-15 (June 2016), https://stephanieseguino.weebly.com/uploads/2/3/2/7/23270372/brooks_and_seguino_vsp_2010- 15_final.pdf [https://perma.cc/Z6VW-D7T7]; Inst. on Race and Just., Northeastern Univ., Vermont State Police: An Examination of Traffic Stop Data, July 1, 2010—December 31, 2015 (May 24, 2016), http://vsp.vermont.gov/sites/vsp/files/documents/VSPPresentation 05242016.pdf [https://perma.cc/5UMM-BGJ6]; see also B. Obama, Commentary, The President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811, 820-21 (“A large body of research finds that, for similar offenses, members of the African American and Hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties.”). As the amicus points out, the Vermont Legislature has recognized the existence of this problem and taken steps to address it. See 20 V.S.A. § 2366(e)(1) (requiring Vermont law enforcement agencies to collect roadside stop data, including driver’s race, reason for stop, and outcome of
[4] Plaintiff does not challenge on appeal the superior court’s rejection of his claim that Trooper Hatch misrepresented material facts in his application for a search warrant.
[5] The other organizations are Migrant Justice, Vermonters for Criminal Justice Reform, The Root Social Justice Center, The Peace and Justice Center, local chapters of The National Association for the Advancement of Colored People, and Justice for All.
[6] Because the State was content with the superior court’s summary judgment ruling in its
favor, it was not required to file a cross-appeal challenging the court’s conclusion that Article 11
provides an implied private right of action seeking money damages for alleged unlawful searches
and seizures. See Huddleston v. Univ. of Vt.,
[7] The State did not make this specific argument below; rather, it argued only that the State
was immune from suit because it had not waived its immunity in the VTCA. In so arguing, the
State noted that this Court had not explicitly addressed the issue of whether the State is entitled to
rely on sovereign immunity in defending claims brought under the Vermont Constitution. The
superior court determined that Article 11 provided a private right of action for damages arising
from violations by the State or its agents and that the VTCA did not apply, but it did not otherwise
address the question of sovereign immunity, thereby intimating that Article 11, of its own force,
impliedly waived the State’s sovereign immunity. We address the State’s argument on appeal
because it is the primary question with respect to whether plaintiff may go forward with his lawsuit.
See My Sister’s Place v. City of Burlington,
[8] One notable difference is that the FTCA provides that the government is liable “in the same manner and to the same extent as a private individual under like circumstances,” 28 U.S.C.
[10] Almost forty years ago, in a case where the plaintiff made “no specific claims of
unconstitutionality,” this Court acknowledged “that many jurisdictions have abolished, and legal
commentators have advocated abolition of, the doctrine of sovereign immunity where created by
judicial decision.” Lomberg v. Crowley,
[11] We recognize that the VTCA does not indemnify state employees for gross negligence or willful misconduct, 12 V.S.A. § 5606(c)(1), but as explained above, the Act does not govern constitutional tort claims.
[12] As discussed below, the relevant statute has since been amended to require that registration stickers be kept unobscured.
[13] As noted above, in our view, making the State responsible for the actions of its employees would deter unlawful conduct by motivating the State to better train its employees and to discipline or discharge them when the training proved ineffective. See Brown, 674 N.E.2d at 194-95. Moreover, beyond any goals of compensation and deterrence, constitutional tort actions serve to establish and clarify “constitutional rights that both protect individuals from governmental injury and regulate the discretion of the government to inflict injury.” J. Park, supra, at 396.
[14] Regarding the latter argument, plaintiff contends that adopting the Heien holding would
be inconsistent with the broader protection we have established under Article 11, see State v. Pitts,
[17] The majority in Heien did not set forth a standard for determining whether a law
enforcement officer’s mistaken interpretation of a law was objectively reasonable, but the
concurrence emphasized that, to pass constitutional muster, the mistake would have to be one of
those rare instances where the statute was “genuinely ambiguous, such that overturning the
officer’s judgment [would] require[] hard interpretive work.” Heien, ___ U.S. at ___, 135 S. Ct.
at 541 (Kagan, J., concurring). Since then, other courts, including this Court, have referred to the
standard espoused in the Heien concurrence. See Hurley,
[18] Relying on Thompson,
[19] With respect to the exit order and the seizure and search of plaintiff’s vehicle, the parties
extensively debate the significance of the fact that at the time of the stop adult possession of less
than one ounce of marijuana was not a crime but rather a civil violation subject only to a fine.
Compare 18 V.S.A. § 4230a(a)-(b) (2017), with 2017, No. 86 (Adj. Sess.), § 4 (amending § 4230a
to remove all criminal and civil penalties for adult possession of one ounce or less of marijuana).
Plaintiff contends that Article 11 does not permit exit orders for suspected civil violations and that,
in this case, Trooper Hatch had no objectively reasonable suspicion that plaintiff had in his
possession more than one ounce of marijuana. On that basis, plaintiff seeks to distinguish State v.
Ford, where we upheld an exit order based in part on the odor of marijuana emanating from the
vehicle.
[20] In 2014, after the instant stop occurred, the Legislature amended § 1201(a)(3) by deleting the phrase, “to a degree which renders the person incapable of driving safely,” which had followed the words, “and any other drug.” See 2013, No. 169 (Adj. Sess.), § 1. This fact has no impact on our analysis.
[21] Neither Trooper Hatch in his application for a search warrant, nor the State in its statement of undisputed facts, indicated that the trooper observed redness in plaintiff’s eyes following the stop.
[22] In Guzman, we quoted a Massachusetts court for the proposition that most other courts
considering the question of when the odor of marijuana is sufficient to support probable cause
“agree that ‘the odor of marijuana is sufficiently distinctive that it alone can supply probable cause
to believe that marijuana is nearby.’ ” Guzman,
[23] The State notes in its brief that plaintiff did not make an equal protection claim or allege racial discrimination in its complaint. Although plaintiff 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