VERMONT SUPREME COURT
FILED IN CLERK'S OFFICE
ENTRY ORDER JAN 04 20:9
2019 VT 1
SUPREME COURT DOCKET NO. 2017-284
MAY TERM, 2018
Gregory W. Zullo } APPEALED FROM:
}
}
v. } Superior Court, Rutland Unit,
} Civil Division
3
State of Vermont } DOCKET NO. 555-9-14 Rdev
In the above-entitled cause, the Clerk will enter:
‘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:
Hold E. Eaton, Jr.,
Concurring:
Paul L. Reiber, Chief Justice
be Loghae ‘Associate Justice
& Robinson, Associate Justice
a R. Uses Associate JusticeNOTICE: 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.
VERMONT SUPREME COURT
pot FILED IN CLERK’S OFFICE
JAN 04 2019
No. 2017-284
Gregory W. Zullo Supreme Court
On Appeal from
v. Superior Court, Rutland Unit,
Civil Division
State of Vermont May Term, 2018
Helen M. Toor, J.
Lia Emst and James Diaz, ACLU Foundation of Vermont, Montpelier, for Plaintiff-Appellant.
‘Thomas J. Donovan, Jr., Attomey General, and Eve Jacobs-Camahan and David R. Groff,
Assistant Attorneys General, Montpelier, for Defendant-Appellee.
Matthew Valerio, Defender General, and Rebecca Tumer, 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.
{1. 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 beobtained 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.
412. Atiissue in this appeal is: (1) whether Article 11 provides a self-executing right of
action for damages; (2) whether the Vermont Tort Claims Act (VICA) 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 VICA 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.
13. 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 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 the
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
{n 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.