NACDL - News Release ~ 01/07/2019

News Release

In Landmark Case, Vermont Supreme Court Issues Unanimous Racial Profiling Decision

Washington, DC (Jan. 7, 2019) – On Friday, January 4, 2019, the Vermont Supreme Court unanimously found that law enforcement can be civilly liable for discriminatory searches and seizures in violation of the Vermont Constitution.

The case is Zullo v. Vermont (2017-284) and is a civil rights action under Article 11, the search and seizure provision, of the Vermont Constitution. In this case, an African-American plaintiff, Gregory W. Zullo, who is represented by Lia Ernst and James Diaz at the ACLU of Vermont, seeks declaratory relief and money damages arising from alleged violations of Article 11 arising from the stop, search, and seizure of his vehicle. Mr. Zullo had been pulled over in 2014 allegedly because snow was covering the registration sticker on his license plate, which itself was not a traffic violation. Claiming to detect a faint scent of burnt marijuana, Mr. Zullo was ordered out of the car. When he refused a demand by the officer to search the vehicle, the officer had his car towed to the police station where a search failed to uncover any crime.

The Vermont Supreme Court held that:

…an implied private right of action for damages is available directly under Article 11, that the [Vermont Tort Claims Act] 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 malice 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 warrantless seizure and subsequent search 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.

“This decision by the Vermont Supreme Court represents a tremendous step forward toward ensuring that justice will not countenance bias,” said National Association of Criminal Lawyers (NACDL) Amicus Curiae Committee Vice Chair Lindsay Lewis, who oversaw NACDL’s joint amicus brief in this case. “All people in this country should be able to trust that law enforcement is not targeting them for any improper purpose. And now the Vermont Supreme Court has held that the people of Vermont have a path to vindicate their rights should they be so violated.”

“NACDL is absolutely thrilled with this important and unanimous opinion,” said NACDL President Drew Findling. “It is a core part of NACDL’s mission to redress systemic racism. Ensuring that individuals who are profiled by the police and unjustly subject to stop, search, and seizure, have recourse under the law to hold law enforcement accountable is an important step toward making the moral imperative of ridding the system of racial profiling a reality. It is more than gratifying that the decision of the Justices on the Vermont Supreme Court was unanimous and unambiguous in this regard.”

NACDL filed an amicus curiae, or friend of the court, brief in support of Mr. Zullo in early 2018, which 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 certain local NAACP leaders. The brief argued that “expanding police discretion would exacerbate the racial inequities entrenched in Vermont’s criminal justice system in general, and its traffic enforcement practices in particular” and that “implicit racial bias impacts police officer behavior and perceptions of what constitutes criminal behavior.”

NACDL’s Joint Amicus Brief was authored by Dahlia Mignouna and Chad I. Golder of the Washington, DC, office of Munger, Tolles & Olson LLP. Vermont counsel was Jeffrey T. Dickson of the Dickson Law Office, PLLC, in Burlington, VT. Lindsay A. Lewis, Vice Chair of NACDL’s Amicus Curiae Committee, oversaw the brief.

The Vermont Supreme Court’s decision in Zullo v. Vermont is available here.

Contacts

Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.