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Vt. Supreme Court Hands Down ‘Landmark’ Ruling in Case of Alleged Racial Profiling

Published: 1/6/2019 12:17:08 AM
Modified: 1/6/2019 12:17:10 AM

A civil rights organization is hailing a Vermont Supreme Court ruling on a racial profiling case as a “landmark” decision. The case challenged the legality of a traffic stop by a Vermont State Police trooper of an African-American man in Rutland County more than four years ago.

On Friday, the Vermont Supreme Court issued a 51-page decision authored by Justice Harold Eaton holding that police can be liable for discriminatory searches and seizures.

The court also ruled as part of the unanimous decision that the “faint” scent of marijuana coming from inside a motor vehicle alone is not enough to justify searches and seizures.

The driver was Gregory Zullo, of Rutland, who was represented by the American Civil Liberties Union.

The ACLU, in the lawsuit against the state, contended that Zullo’s rights under Vermont’s constitution against unlawful search and seizure were violated.

The Vermont Attorney General’s Office backed the actions of then-State Trooper Lewis Hatch, who pulled Zullo over on a snowy day in March 2014.

“I’m really excited that we are making a difference here,” Zullo said on Friday of the high court’s ruling. “I didn’t think it was going to be in favor; I’m glad I was wrong. ... Now I feel like a big weight has been lifted off my shoulders.”

He then added, “But we’re not done yet.”

The high court sent the case back to the lower court in Rutland for further proceedings, where the ACLU can argue that the trooper’s action in pulling over Zullo was in “bad faith” and racially motivated.

“This ruling represents a major victory for all Vermonters, but especially for Vermonters of color like Mr. Zullo,” said Lia Ernst, a staff attorney with the Vermont ACLU who argued the case before the high court in May.

“Police have had enormous discretion to stop and search motorists, including for erroneous or pretextual reasons and on the basis of implicit or explicit bias,” Ernst added. “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.”

In its ruling, the high court did not specifically find that the trooper engaged in racial profiling, but it instead sent the case back to the lower court where those claims can be explored.

Ernst said the high court ruling set a standard to obtain damages in such a case, requiring a showing either that the officer “clearly violated” established law, or the officer acted in bad faith.

“That standard didn’t exist before this decision,” Ernst said, “so the lower court never had opportunity to assess, and we never had an opportunity to argue, whether that standard was met.”

Vermont Attorney General TJ Donovan said late Friday he needed more time to study the ruling before commenting.

“It’s a long decision; it’s a complicated issue. We’re in the process of reviewing of it,” Donovan said. “We’ll be meeting earlier next week to discuss.”

At the trial court level, Rutland Superior Court civil court Judge Helen Toor granted summary judgment to the state, effectively throwing the case out. The judge ruled that the trooper’s stop of Zullo’s vehicle did not violate his state constitutional rights regarding searches and seizures.

The case highlights issues of whether the trooper who initiated the traffic stop that led to the seizure and search of the vehicle was engaging in racial profiling, as well as whether catching a whiff of pot justified the trooper’s seizing the car.

A video of the traffic stop, posted on YouTube by the ACLU, has had more than 67,000 views.

In its appeal, the ACLU specifically challenged police authority to continue using the “sniff test” in light of the 2013 state law decriminalizing possession of an ounce or less of marijuana. Decriminalization reduced the penalty for possession to a civil fine.

Since the filing of the case, on July 1, 2018, a new state law has legalized possession of up to an ounce of marijuana, as well possession of a small number of marijuana plants.

Zullo never was charged with a crime stemming from the traffic stop. Police did say they later found a grinder and a pipe containing marijuana residue inside the vehicle.

That issue of the marijuana residue was raised during the oral arguments before the Vermont Supreme Court back in May.

“Did they find marijuana or did they find residue in a pipe?” Justice Beth Robinson asked Assistant Attorney General David Groff at one point during the hearing.

“Any amount of marijuana is illegal,” Groff responded.

“Residue already consumed?” Robinson asked.

Groff said he wasn’t sure that was a legal question that had been “explicitly” answered.

The state trooper who made the traffic stop, Hatch, who had a history of questionable searches often involving black men, has since been dismissed from his job with the state police, Seven Days reported in 2016.

According to court filings, Zullo, then 21, had just finished work on March 6, 2014, at Pico Mountain Ski Resort in Killington, Vt., and was traveling to Wallingford to visit a friend. He was stopped by Hatch as a result of snow that allegedly covered the vehicle’s registration sticker on the license plate.

Ernst has alleged that in choosing to pull over Zullo’s car, the trooper was engaging in racial profiling.

“Trooper Hatch pulled him over for something that a) wasn’t even a violation of law, and b) even it were violation of law, it’s next to impossible in Vermont in March to not have some snow on your license plate,” Ernst said in a previous interview. “Why did Trooper Hatch pick our client rather than any other car with snow on its license plate? We can draw our own conclusion from that.”

At the time of the traffic stop, Ernst told the justices during the oral arguments in the case, having an obscured validation sticker was not a violation. That law has since changed, and the sticker must now be visible, along with the digits and letters on the plate.

Following the stop, the ACLU stated in the appeal brief that Hatch ordered Mr. Zullo to exit his car based on the alleged faint odor of burnt marijuana.

“Hatch seized Mr. Zullo unnecessarily for an hour and had Mr. Zullo’s car towed to the barracks for a search, which revealed no contraband,” the ACLU attorneys wrote. “To retrieve his car, Mr. Zullo walked and hitch-hiked eight miles home through sub-freezing temperatures, waited several hours at the barracks, and was forced to pay a $150 fee.”

Several Vermont organizations signed on to a “friend of the court” brief filed in the case by the National Association of Criminal Defense Lawyers in support of Zullo.

Those groups included Justice for All, Migrant Justice, Peace and Justice Center, The Root Social Justice Center, and Vermonters for Criminal Justice Reform.

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