Police reviewing top court decision on improper stop and search

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BRATTLEBORO — Members of local law enforcement are evaluating how they operate after a recent Vermont Supreme Court ruling that police can be held liable for an improper stop and search.

In March 2014, Greg Zullo, an African-American Vermonter, was pulled over for allegedly having a small amount of snow covering the registration sticker on his license plate, something that was not illegal at the time of the stop. Zullo, then 24, had just finished a shift working for the town of Killington when he was pulled over in Wallingford by a Vermont State Trooper, Lewis Hatch, who was fired in 2016. According to public documents obtained by Seven Days, Hatch appeared to have a history of conducting drug searches without legal justification, often targeting black men.

Hatch wrote in his search warrant application that he noticed a faint odor of burnt marijuana as he approached Zullo's car, but Hatch never deployed the drug-detection dog he had in his vehicle. In response to the trooper's questioning, noted the ACLU of Vermont, which assisted Zullo in his legal case, Zullo told the trooper that he had smoked marijuana three days prior to the stop.

"Any initial suspicion Trooper Hatch had that plaintiff was driving while impaired was quickly dispelled during the trooper's questioning of plaintiff," noted the ACLU. In addition, Hatch never asked Zullo to perform a field sobriety test.

Zullo refused a search request, and Hatch kept him on scene for 20 minutes before radioing for a tow truck. After a search warrant was issued, a search turned up a small pipe with residue later identified as marijuana, but no evidence of a criminal offense. Zullo's vehicle was not released until after he paid a $150 towing fee.

Zullo filed suit against the Vermont State Police, saying the stop, seizure and search of his vehicle violated Article 11 of the Vermont Constitution, but a Rutland Superior Court judge dismissed the suit on the grounds the state is protected by sovereign immunity.

The Vermont Supreme Court disagreed, noting had the stop been lawful, Zullo would not have a right to sue the state.

"[B]oth the stop and the warrantless seizure and subsequent search of plaintiff's vehicle violated Article 11 [of the Vermont Constitution]," wrote the Supreme Court in its Jan. 4 decision. The Supreme Court sent the case back to Rutland County for further hearings.

"The Vermont State Police has extensive policies in place regarding searches and seizures, and closely examines and follows all constitutional protections and court precedents," stated VSP spokesman Adam Silverman in an email to the Reformer. "In the rare case where an individual fails to uphold those standards, that individual is held accountable."

Montpelier-based attorney Dan Richardson, who runs the SCOV Law Blog, which focuses on the Vermont Supreme Court, told VPR the decision means the state could now be held liable over constitutional violations, such as unlawful search and seizure.

"It's a fairly high standard and the court was somewhat cautious and conservative in its approach, but it does really open a door to these types of claims and a potential liability for the state," Richardson told VPR.

"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," stated Lia Ernst, the ACLU attorney who argued the case, in a press release following the decision.

Local law enforcement reviews the decision

As soon as the decision was made available, Brattleboro Police Department Capt. Mark Carignan said he reviewed it to determine if it has any affect on the way his officers do their jobs.

"What jumped out at me right away was that the original stop was for an obscured registration sticker," said Carignan. "The law at the time didn't require the sticker be visible, just the numbers and letters."

A year after the Zullo stop, the Vermont Legislature rewrote the law to clarify that stickers also had to be visible.

"When I read the decision I went back and double-checked that's the law," said Carignan. "Whenever there are court decisions, whether the Supreme Court of local district courts, we look at and discuss them."

Carignan said reading court decisions such as in the Zullo case can also be an opportunity to reflect on and discuss fair, impartial and bias-free policing.

"We are comfortable with where we are at in the Brattleboro Police Department," he said. "But police work is done by human beings and human beings have implicit biases based on where they come from, how they were raised, where they went to school and their family histories."

Members of the Brattleboro Police Department attend regular trainings that include topics such as fair, impartial and bias-free policing and also conduct in-house training to address the issue, said Carignan.

"But it's not a static thing," he said. "You can't take a training class and then dust your hands off and say 'OK, I'm not biased. I police impartially without regard for race or gender or ethnicity or age.'"

Acknowledging implicit biases

Over more than a decade, he said, law enforcement training has evolved to include topics such as implicit bias.

"We encourage officers to acknowledge any implicit biases they may have to make sure they are not affecting their work," said Carignan, who acknowledged he regularly conducts his own self-evaluations to insure he is policing in a fair and impartial manner.

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"I recognize my own demographics and my own potential implicit biases," he said. "I was raised in a Caucasian, intact family, predominantly in New England and I am in a profession that is predominantly Caucasian men."

Often, outside of formal training, said Carignan, he and other officers will talk about how they policed a certain situation and how the circumstances might have influenced their decisions and whether implicit biases factored in to their policing. But despite the formal trainings and the self-introspection, he said, it's still a bunch of white guys sitting around talking about their jobs.

"You have a handful of officers talking but if it's just a bunch of middle-aged white guys, that is going to be less productive than if you have a woman or a minority in the conversation."

Carignan said the Brattleboro Police Department recruits at many different venues and is actively trying to hire women and minorities, but to no avail.

"It's a challenge. And while it doesn't cripple us, it puts us at a significant disadvantage. There are several ways a more diverse workforce helps any work place."

Carignan said a diverse workforce can build public trust and a minority officer can offer a perspective that other officers might benefit from.

"And, third, the more time you spend with different groups of people, the more it diminishes your implicit biases," he said.

Predominantly male and white

Windham County Sheriff Keith Clark said he is also aware that his department doesn't necessarily reflect the changing demographics of Vermont.

"Law enforcement, not just in Vermont but nationwide, is still predominantly male and white," he said. "Vermont is changing but we're not able to keep up for a whole host of reasons."

That means his deputies have to be trained in understanding implicit biases and fair and impartial policing.

"My staff is fairly well educated and they understand the way they see things may not be the way others see it," said Clark. "We all have biases, but as long as my deputies are not taking actions based on those biases, that's what we are focusing on."

As with the Brattleboro Police Department, Clark said his deputies receive regular training as well as career counseling and informal discussions related to how they police.

"Should we be more diverse? Yes. But there aren't a lot of people banging on my door to join the department. Nationwide, law enforcement is not getting enough people in general."

Clark said he encourages people, and not just his deputies, to learn from people in their lives who come from different backgrounds.

"I may not understand what he grew up with, but I can have the conversation to understand his perception," he said. "What we have is that ability to try to understand and at least be educated enough to ask the questions."

Clark said the Zullo decision was a reaffirmation that his deputies are conducting themselves in an appropriate manner.

"We already have policies in place that insure stops are based on reasonable suspicion and probable cause," he said. "And continuation of a stop has be based on specific factors outlined in those policies."

Supreme Court refuses to expand police powers

Justice for All, Migrant Justice, Peace and Justice Center, The Root Social Justice Center, Vermonters for Criminal Justice Reform, Windham County NAACP Organizing Committee Chairman Steffen Gillom and Tabitha Pohl-Moore, President of the Rutland Area NAACP Branch, joined the National Association of Criminal Defense Lawyers in filing a "friend of the court" brief in support of Zullo, citing the widespread racial disparities in Vermont police stop data. The groups contended that an expansion in police discretion in this area would make it easier for police to stop and search drivers for dubious or spurious reasons, further infringing on the civil rights of people of color in Vermont.

The Vermont's Office of the Defender General submitted separate briefing in support of Zullo.

In its decision, the Vermont Supreme Court acknowledged a connection between implicit bias and racial disparities in policing, which has been documented in Vermont-specific studies and reports.

"The powerful role that race plays in law enforcement should further caution this Court against expanding police discretion to allow officers to stop and search individuals when there is a lack of evidence of unlawful behavior," wrote the court in its Zullo decision. "Beyond this serious general concern, however, lies a more specific one: the mechanisms by which implicit bias manifests itself should particularly counsel against adopting a rule that would allow an officer's mistake of law to justify a seizure or search. The research on implicit bias makes it clear that such bias distorts the way officers see and process behavior, making them more likely to erroneously perceive the behavior of black and brown individuals as criminal. That bias thus goes to the heart of whether Article Eleven allows a reasonable mistake of law to justify a search and seizure. Put simply, implicit bias results in officers being more likely to mistake the behavior of black and brown individuals as violations of the law. To bless such mistakes as providing a sufficient basis for a search and seizure is to facilitate the erosion of the rights guaranteed by Article Eleven."

Bob Audette can be contacted at 802-254-2311, ext. 151, or raudette@reformer.com.


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