State seeks dismissal of civil rights lawsuit filed by local activist
BRATTLEBORO — Three state troopers accused by a local activist of brutality are asking a federal court judge to dismiss a civil suit filed against them.
Shela Linton, a co-founder of Brattleboro's Root Social Justice Center, in Brattleboro, filed a civil rights violation complaint against the Vermont State Police, contending that she was assaulted by a trooper during a protest in Montpelier on Jan. 8, 2015.
According to the complaint, filed with the U.S. District Court for the District of Vermont, Linton was one of 29 people arrested at the State House during the inauguration of then-Gov. Peter Shumlin. The protesters were demanding a public debate over the state's failure to pass a single-payer health care plan.
"I believe I was targeted and intentionally assaulted by Detective Jacob Zorn because I am black," wrote Linton in her complaint. "I was the only black person in the 29 people who were arrested. I was the only person to be assaulted. His actions also stood out from his fellow officers who in the similar situation chose not to use the force .. Zorn did ..."
In addition to Zorn, Linton also named Paul White and Tom L'Esperance, both of whom retired from the VSP in 2015, in her suit. White was named in the suit as the supervising trooper on the scene; L'Esperance was VSP's commander at the time.
In her complaint, which was filed Jan. 5, Linton, who is African American, wrote that she was "the only person who was assaulted," even though she, like the others arrested, used passive resistance techniques. But, unlike the others, maintained Linton, she was injured during her removal. Linton wrote that Zorn, became "agitated and frustrated" during her removal from the Well of the House, and "forcibly grabbed, twisted, and snapped back my wrist ... The pain was intense ..."
After she stayed limp and refused to leave, Zorn threatened her with pain compliance, wrote Linton, which she contends was not used on others when they were arrested.
"He then put his mouth to my ear and said that I should have just called my legislator! And proceeds to assault me," describing the arrest technique as a "military style pretzel pigeon" with her arm behind her back. "This caused massive pain and me screaming and crying and unable to do much other than deal with the pain. ... The pain was the equivalent to giving birth for me and my body was in shock and in massive pain."
The defendants are being represented by Vermont Attorney General T.J. Donovan and Assistant Attorney General Jon T. Alexander.
In the motion to dismiss, Alexander wrote that federal court lacks the authority to hear this case and cited Linton's "failure to state a claim" under federal rules.
While Linton alleges that Zorn "willfully" subjected her "to unreasonable and excessive force not reasonably and objectively justified by the attendant circumstances," "[Linton] does not expressly allege a claim or cause of action based on violation of the Equal Protection Clause of the U.S. Constitution's Fourteenth Amendment," wrote Alexander.
Alexander said the troopers are immune from a monetary claim under the Eleventh Amendment of the U.S. Constitution, which "prohibits federal courts from entertaining suits by private parties against the states." He said the amendment protects "officials when acting in their official capacity ..." and also prevents Linton from asking for "mandatory trainings, an apology, investigations, or disciplinary action ..." as part of her settlement.
Alexander contends in the motion that Linton has failed to prove excessive force was used against her. "Instead, Zorn's alleged actions, used to overcome Plaintiff's admitted 'passive resistance,' were not excessive as a matter of law. The State has a legitimate interest in removing trespassers from State property when their presence and actions disrupt the orderly administration of business."
Because Linton refused to comply with Zorn's requests to stand up and leave the building, "it was necessary for Zorn to use enough force to compel Plaintiff's compliance with his lawful order to stand up and vacate the State House," Alexander said. "She has no constitutional right, as a protestor, to trespass and cause a disturbance on public property."
Past court decisions have established "that officers may constitutionally use force to subdue or gain compliance over a trespassing protester who refuses to leave an area or comply with an officer's orders, even if the plaintiff poses no immediate threat," Alexander said.
As to Linton's allegation that she was treated differently by Zorn because of her race, Alexander said Linton "has not alleged, nor do ... videos show, that any of the other 28 arrested protestors were restrained, subdued or removed by Defendant Zorn, rather than by other unnamed and unidentified law enforcement officers."
To prove she was treated differently, wrote Alexander, she has to prove that Zorn arrested others during the protest in a manner different than how Linton was arrested.
"Here, Plaintiff does not assert that Defendant Zorn participated in any of the allegedly less forceful removals and/or arrests of the other 28 individuals who were not black," wrote Alexander. "Indeed, Plaintiff's allegations suggest that the other 28 sit-in protesters were removed and arrested with less force by numerous unknown and unnamed non-party law enforcement personnel ... she has failed to allege that Zorn gave more favorable treatment to similarly situated persons of a different race, thereby making any such claim untenable as a matter of law."
If Zorn had used racial epithets while removing Linton, she might have a case against Zorn, noted Alexander, but that is not the case here.
"Plaintiff suggests that Zorn may have spoken to her 'in disparaging ways,' ... but this appears to allude solely to Zorn's alleged race-neutral comment to Plaintiff that she 'should have just called [her] legislator,' rather than participate in a State House sit-in. ... Plaintiff's stated belief that she was "targeted and intentionally assaulted by Detective Jacob Zorn because I am black" ... is nothing more than a speculative conclusion unsupported by specific facts."
Bob Audette can be contacted at 802-254-2311, ext. 151, or firstname.lastname@example.org.
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