Inside NACDL: Rooting Out Bias: How a Bad Stop Can Make Good Law

A dubious traffic stop of a young man in Vermont provided a unique opportunity for NACDL to further its mission to redress systemic racism in the criminal justice system. In February 2018, NACDL submitted an amicus brief in the Vermont Supreme Court urging the court to find an implied right of action under Article 11 of the Vermont Constitution to permit an action against the State for damages and declaratory relief to challenge an unlawful stop based on racial bias.

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NACDL’s robust and often lauded amicus curiae program is not known for its work in civil cases. But a dubious 2014 traffic stop of a young man in the Town of Wallingford, Vermont, provided a unique opportunity for NACDL to further its mission to redress systemic racism in the criminal justice system.{1} 1 In February 2018, NACDL submitted an amicus brief in the Vermont Supreme Court on behalf of several groups{2} 2  Read the amicus brief at Co-amici included the following: Migrant Justice; Vermonters for Criminal Justice Reform; the Root Social Justice Center; the Peace & Justice Center; Steffen Gillom, chair of the Windham County NAACP; Tabitha Pohl-Moore, president of the Rutland Area NAACP Branch; and Justice for All. NACDL’s brief was coordinated by the NACDL Amicus Committee Second Circuit Vice-Chair Lindsay A. Lewis, and was authored by Jeffrey T. Dickson of Dickson Law Office, PLLC and Dahlia Mignouna and Chad I. Golder of Munger, Tolles & Olson LLP. urging the court to find an implied right of action under Article 11 of the Vermont Constitution, Vermont’s analogue to the Fourth Amendment to the U.S. Constitution, to permit an action against the State for damages and declaratory relief to challenge an unlawful stop based on racial bias. In an opinion issued on Jan. 4, 2019, the Vermont Supreme Court agreed.

On the afternoon of March 6, 2014, Gregory Zullo, a 21-year-old African American male, had just finished his work shift at his place of employment in the Town of Killington and was driving to the Town of Wallingford to see a friend. State Trooper Lewis Hatch was parked at a gas station when Mr. Zullo drove by. Trooper Hatch pulled out, followed for some distance, and then activated his emergency lights and stopped Gregory Zullo. Hatch claimed that he noticed air freshener, Visine, and detected a faint odor of marijuana, small quantities of which had recently been decriminalized in Vermont. Zullo provided his license and registration as required and said that he had smoked marijuana three days before. He did not appear at all impaired, nor did Hatch bring the drug detection dog he had in his vehicle to Zullo’s car. Nevertheless, he ordered Zullo out of the car.

It was only after Zullo was out of the car that Hatch told him that he stopped the car because snow partially obscured the registration sticker affixed to the car license plate, although the plate itself was not obscured. At the time of the stop, there was no law requiring that the sticker must always be visible. While Zullo consented to the search of his person, he declined to permit a search of the car. With that, Trooper Hatch said he would have the car towed and get a search warrant. While Zullo walked and hitchhiked to his home eight miles away, Hatch obtained the search warrant. The search revealed a metal grinder and a small pipe with residue later identified as marijuana, but no evidence of a criminal offense. Several hours later, the car was released to Zullo after he paid a $150 towing fee. No charges were brought, as no crime had been committed.

Gregory Zullo then brought a suit for declaratory relief and monetary damages for violations of his rights, including the unlawful stop without reasonable suspicion, the unlawful exit order without reasonable suspicion of danger or the commission of an offense, and the unlawful seizure and search of the car. Following extensive litigation, the superior court granted the State’s motion for summary judgment dismissing the action.

A key issue for the Vermont Supreme Court was whether the stop violated Article 11 of the Vermont Constitution, which, like many other states, affords greater protection than the Fourth Amendment. More specifically, a key question was whether Vermont should follow the Supreme Court’s holding in Heien v. North Carolina{3} 3  Heien v. North Carolina, __ U.S. __, 135 S. Ct. 530 (2014). that reasonable suspicion to support a traffic or investigatory stop may rest upon a police officer’s reasonable mistake of law. In other words, assuming the truth of the Trooper’s assertion that he believed that the obstruction of the sticker on the plate was a violation, should that excuse the ensuing stop, search, and seizure?

NACDL argued that applying Heien would inhibit the courts from protecting individuals from unlawful searches and seizures, especially in light of “the systemic and pervasive role that race plays in the criminal justice system and in police officers’ perception of criminality.”{4} 4  NACDL brief, page 5. The brief then proceeded to produce a litany of research establishing that race-based inequities are entrenched in Vermont law enforcement, and argued that implicit bias among law enforcement officers often results in disproportionate targeting of racial minorities. A rule that would inoculate the state against liability when police officers are permitted to conduct searches and seizures based upon erroneous understandings of the law would serve to exacerbate disproportionate impacts on communities of color.

Of course, as experienced defense counsel well recognize, pretextual stops are permitted under established Supreme Court law,{5} 5  Whren v. United States, 517 U.S. 806 (1996). and the reason that a police officer subsequently gives for a stop, a search, or a seizure may not necessarily be grounded in fact.{6} 6  Indeed, good reason exists to doubt the actual basis for the stop in this case. It has been reported that Trooper Hatch was subsequently fired from the police force, apparently due to a history of illegal stops. See Those who are animated by bias will often play fast and loose with the facts. To expand the permissible behavior to include pretexts that themselves are a misconstruction of the law is an invitation to permit bias, whether implicit or explicit, to perpetuate disparate enforcement.

The key holdings in the Vermont Supreme Court’s reversal upheld the right of an individual to seek monetary damages from the State for unreasonable searches and seizures and held that the stop was unlawful, effectively declining to follow Heien in Vermont.{7} 7  Read the decision at The court, however, set a high bar for recovery by stating 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 established law.” That said, the court clearly opened the door to evidence of bias by holding that “bad faith, which may exist even when the officer’s conduct could be viewed as objectively reasonable, is characterized by ill will or wrongful motive, including discriminatory animus.” Perhaps, on remand, Mr. Zullo and his Vermont ACLU legal team will be able to make use of the outstanding research compiled in NACDL’s amicus brief and, together with an analysis of Trooper Hatch’s search practices, successfully make the case that the stop was predicated not on the white snow on his license plate sticker, but on his black skin.

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About the Author

Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.

Norman L. Reimer
Washington, DC

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