Suit filed by local activist allowed to proceed

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BURLINGTON — A civil suit filed by a local activist against the Vermont State Police has been allowed to continue, though the scope of the suit was reduced by a federal court ruling.

In early January of this year, Shela Linton filed a complaint with the U.S. District Court for the District of Vermont alleging troopers with the Vermont State Police used excessive force against her while she and nearly 30 other people were protesting the state's failure to pass a single-payer health care plan. The protest took place in the Vermont State House on Jan. 8, 2015.

Linton also alleged that she was singled out by troopers because she is African American. Linton is a co-founder of Brattleboro's Root Social Justice Center.

Linton filed the suit against the Vermont State Police, VSP Det. Jacob Zorn, supervisor Paul White and Lt. Col. Tom L'Esperance.

On Thursday, Judge Geoffrey W. Crawford issued a decision dismissing the case against the Vermont State Police as an organization because the state is protected under the sovereign immunity granted it in the Eleventh Amendment.

According to the LSU Medical and Public Health Law website, the Eleventh Amendment prevents federal courts from exercising jurisdiction over state defendants; the federal court will not even hear the case if a state is the defendant. According to Carlos Manuel V zquez, writing for Georgetown University Law Center, the Eleventh Amendment leaves open the possibility that states can be sued in their own courts, however a separate line of cases implies that state courts enjoy an immunity from suit in their own courts and that nothing in the Constitution withdraws such immunity.

Crawford also dismissed White and L'Esperance from the suit because they were acting in their official capacities and, as agents of the state, are protected by qualified immunity and because they are now retired.

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However, wrote Crawford, while Zorn is also protected by qualified immunity, Linton named his as an individual, and that portion of the suit can proceed.

"Ms. Linton's claims arise out of her forcible removal from the Vermont statehouse on the evening of January 8, 2015, where she and others were engaged in a non-violent sit-in," noted Crawford. "She and other participants 'linked arms in a circle' and were sitting and singing. They used 'passive resistance tactics' that included sitting on the floor and being limp."

Linton wrote in her complaint that as she was waiting her turn for arrest, troopers did not use "pain compliance" on other participants. Zorn and Trooper Seth Richardson approached Linton. Richardson was not named in the suit because, as Linton wrote, he he acted "in an appropriate way in a non hurting manner."

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"[Richardson]did not speak to her in disparaging ways or assault her. He was firm but gentle in assisting Ms. Linton's removal," wrote Crawford.

However, contended Linton, Zorn was "immediately agitated and frustrated" and "forcefully grabbed, twisted, and snapped back" her wrist behind her back.

Linton, who described the pain as "intense," wrote that her forcible removal, which included being physically dragged from the State House, resulted in injuries that required medical attention and more than a year of medical and mental health treatment. She is seeking $500,000 in damages.

Crawford noted that videos of the protest and the subsequent arrest were consistent with Linton's allegations. He also noted that when deciding on proper application of the law, a judge must pay careful attention "to the facts and circumstances of each particular case, including the severity of the crime at

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issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [she] is actively resisting arrest or attempting to evade arrest by flight."

While Linton did not "explicitly state" the basis for her arrest, noted Crawford, "it is reasonable to conclude that she was arrested for trespass or for causing a disturbance on public property — not particularly severe crimes." Nothing suggests that Linton posed any immediate threat to safety, nor did it appear she was evading or resisting arrest, he wrote.

Considering these circumstances, Linton has "plausibly alleged" a violation of her Fourth Amendment, wrote Crawford. The Fourth Amendment has been interpreted by courts as calling for a fact-specific analysis of whether an officer's use of force is unreasonable or excessive, depending on the totality of the circumstances surrounding the encounter.

"[T]here are limits to the acceptable use of force against nonviolent protestors employing 'passive' resistance," wrote Crawford. "The court is not holding that Detective Zorn was prohibited from using any force to gain Ms. Linton's compliance. But at the motion-to-dismiss stage, the court cannot conclude as a matter of law that the force used was objectively reasonable under the circumstances. ... [N]othing in Ms. Linton's allegations suggests that she was resisting in any way other than nonviolent refusal to move or comply. If the 'rear wrist lock' was an appropriate maneuver in the circumstances, Ms. Linton plausibly alleges that Detective Zorn executed the maneuver not only 'imperfectly,' but with excessive force."

Crawford also noted that Linton has presented a "plausible equal protection claim" and let stand her contention that, as an African American, she was treated differently than other protestors.

"[F]or present purposes the court must draw all inferences in the light most favorable to Ms. Linton," wrote Crawford.

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


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