Vermont high court permits lawsuit against cop accused of racial profiling

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The State of Vermont can be held liable for police officers that illegally stop and search drivers based on their race, the Vermont Supreme Court unanimously ruled Friday. In its ruling the state became one of the first to cast doubt on the scent of marijuana as a valid basis for a search and seizure.

The court ruled that Gregory Zullo, who is Black, could sue the state police officer who pulled over Zullo’s car, saying he did so because snow covered the registration sticker on his vehicle’s license plate. Trooper Lewis Hatch justified then demanding to search the vehicle by saying he detected the faint odor of marijuana.

In Vermont, snow covering a license plate is not a traffic violation. No marijuana was found in the vehicle, which was impounded and searched, and Zullo was not charged with any crime.

The state court dismissed his lawsuit, contending the officer was immune from being sued. But the state high court reinstated the case and said the officers could be sued for discriminatory searches and seizures in violation of the Vermont Constitution.

The National Association of Criminal Defense Lawyers (NACDL), which submitted a joint amicus brief in 2018 in support of Zullo, lauded the decision: “All people in this country should be able to trust that law enforcement is not targeting them for any improper purpose. And now the Vermont Supreme Court has held that the people of Vermont have a path to vindicate their rights should they be so violated.”

NACDL President Drew Findling said the decision is an important step towards ending the practice of racial profiling.

Legal experts say that state courts are increasingly expanding constitutional protections of individual rights beyond those defined by the federal constitution.

Lia Ernst, a Vermont American Civil Liberties Union (A.C.L.U.) attorney who argued the Zullo case, says that this ruling brings Vermont up to speed with other states who have, both through court rulings and legislation, already permitted lawsuits alleging constitutional violations by state officials to proceed.

Black drivers are around four times more likely than white drivers to be searched after a stop, and Hispanic drivers are around three times more likely. But research done in the state of Vermont shows that Black and Hispanic drivers “are less likely to be found with contraband that leads to citation or an arrest,” according to the NACDL brief.

New York attorney Lindsay Lewis, who oversaw the NACDL joint amicus brief, said individuals not just in Vermont, but across the country, should be able to trust they are not being improperly targeted by law enforcement.

Racial disparities in policing drugs

The Zullo case comes at a time of heightened national attention toward police officers using their discretion to racially discriminate in their enforcement of drug laws.

In addition to being pulled over at higher rates, Black people are 3.73 times more likely to be arrested for marijuana use nationwide, despite white and Black people using the drug at roughly equal rates.

In 2017, the city of Burlington, Vt., paid $100,000 to another driver who had been pulled over by an officer who falsely claimed in an affidavit that the smell of burnt marijuana justified the stop. The officer in that case apparently believed his dash camera had been turned off, but was recorded saying to another officer that he had not in fact smelled marijuana during the traffic stop.

The court decided in the Zullo case that the odor of burnt marijuana, a drug which has been decriminalized in the state of Vermont, is likely insufficient justification to search a vehicle and order the driver out of the car.

The court ruling makes Vermont one of the first states to say the smell of marijuana is likely not sufficient probable cause to justify a search and seizure. Small amounts of marijuana have been decriminalized and legalized in the state.

Ernst said that in a time of increasing use of police dash and body cams most of the interactions between law enforcement and civilians are being recorded. But, Ernst pointed out, odors cannot be captured on camera, making it more difficult for defendants to find evidence challenging officers’ accounts of what they detected.

In many states where marijuana has not been legalized or decriminalized, an officer’s word that the scent of marijuana was detectable is sufficient justification to conduct a vehicle search.