VT: No sovereign immunity for flagrant search and seizure violations; implied right of action under state constitution

“¶ 84. In sum, we conclude that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State. The common law doctrine of sovereign immunity does not preclude such an action, even though the VTCA is not applicable. A plaintiff must show either a violation of clearly established law, which the actor knew or should have known he or she was violating, or bad faith, which may take the form of discriminatory animus. In this particular case, we conclude that the stop and seizure of plaintiff’s car constituted violations of Article 11. Accordingly, we reverse the superior court’s summary judgment ruling in favor of the State. Because the parties heretofore have not had the opportunity to address the elements of a direct action under Article 11 as established in this opinion, we remand the matter to give them an opportunity to file renewed motions for summary judgment, if they so choose. We make no pronouncement at this juncture as to whether the facts of this case are sufficient or insufficient to survive a renewed motion for summary judgment.” Zullo v. State, 2019 VT 1, 2019 Vt. LEXIS 1 (Jan. 4, 2019). Also:

The seizure, aimed at immobilizing the plaintiff’s vehicle while the officer sought a search warrant, was essentially based solely on the trooper’s initial detection of the faint odor of burnt marijuana, which did not, in and of itself, create fair probability that marijuana would be found in the vehicle.

Commented on here: VTDigger: High court hands down ‘landmark’ ruling in case of alleged racial profiling by Alan J. Keays

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