Long v. L'Esperance

• Decision Date: 11 July 1997
• Docket Number: No. 96-082,96-082
• Citation: 166 Vt. 566,701 A.2d 1048
• Parties: David LONG v. Thomas L'ESPERANCE.
• Court: Vermont Supreme Court

Page 1048

701 A.2d 1048

166 Vt. 566

David LONG v. Thomas L'ESPERANCE.

No. 96-082.

Supreme Court of Vermont.

July 11, 1997.

Edmund A. Burke, Putney, for plaintiff-appellant.

Jeffrey L. Amestoy, Attorney General, Timothy B. Tomasi, Assistant Attorney General, and Renee Markus Hodin, Special Assistant Attorney General, Montpelier, for defendant-appellee.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

JOHNSON, Justice.

Following his arrest by defendant Trooper L'Esperance on the charge of disorderly conduct, see 13 V.S.A. § 1026, plaintiff brought this action alleging unlawful arrest, false imprisonment, assault, battery, and intentional infliction of emotional distress. ¹ The case went to trial, and after plaintiff rested, defendant moved for judgment as a matter of law pursuant to V.R.C.P. 50(a). The court granted the motion as to all claims, holding that based on the evidence presented, defendant had probable cause to arrest plaintiff for the offense of disorderly conduct, and thus was protected from suit by the doctrine of official immunity. Plaintiff appealed. We conclude that plaintiff presented sufficient evidence to support his claim that defendant arrested him without probable cause, and accordingly, reverse.

We review de novo the court's decision granting defendant judgment as a matter of law, ² viewing the evidence in the light most favorable to plaintiff, and excluding any modifying evidence. See Grann v. Green Mountain Racing Corp., 150 Vt. 232, 233, 551 A.2d 1202, 1203 (1988). Judgment as a matter of law is proper only if no evidence exists fairly and reasonably supporting plaintiff's claim. Smith v. Gainer, 153 Vt. 442, 445, 571 A.2d 70, 71 (1990). We have described this as an "exacting standard," Grann, 150 Vt. at 233, 551 A.2d at 1203; if the evidence tends to support plaintiff's claim in any fashion, plaintiff is entitled to a jury determination. South Burlington Sch. Dist. v. Calcagni-Frazier-Zajchowski Architects, Inc., 138 Vt. 33, 40, 410 A.2d 1359, 1362 (1980). We emphasize that in the specific context of this case, defendant has presented no evidence on his behalf. There may very well be another side to this story, as defendant suggests in his brief, but there is no evidence of it in the record, and in any event, it can have no bearing on our decision today.

Keeping this in mind, we turn to the evidence presented by plaintiff. Both plaintiff and plaintiff's brother testified about the events leading up to plaintiff's arrest. Driving home with his brother on July 6, 1992, plaintiff encountered a traffic back-up about a quarter mile in length. After waiting in traffic for approximately fifteen minutes, plaintiff reached defendant, who was one of the state troopers running a DUI roadblock that was the cause of the delay. Plaintiff gave the following testimony regarding the conversation between himself and defendant:

[Plaintiff]: [H]e asked me if I had been drinking anything that night.

[Counsel]: And your response?

[Plaintiff]: No.

....

... He asked me where I was coming from, and I said I was coming from playing basketball.

....

He asked me where I was going. I said I was going home....

....

... Then he asked me, he said something to the effect like: "You look upset. Is there something wrong?"

[Counsel]: And what was your response to that question?

[Plaintiff]: I said, "Well, I am a little irritated to have to wait in this fucking traffic for so long."

[Counsel]: Did you say that the traffic was ridiculous, do you recall something to that effect?

[Plaintiff]: I might have.

[Counsel]: But you used the word "fucking" in referring to the traffic; is that correct?

[Plaintiff]: Correct.

According to plaintiff, at this point defendant became angry, informed him of the importance of the roadblock and told him repeatedly that "[he] should never swear in the presence of a police officer." Plaintiff indicated agreement with defendant. Defendant ordered plaintiff to pull his car to the side of the road, which plaintiff did, after "paus[ing] for a moment." Defendant approached the car, leaned in the window, and again told plaintiff that the roadblock was important and that plaintiff should not swear around police officers. Plaintiff nodded, "tr[ying] to agree with him." Defendant then ordered plaintiff out of the car.

Plaintiff testified that after he got out of the car, defendant stood facing him about a foot away, "barking at [plaintiff]" like a drill sergeant and "continu[ing] to lecture him." Plaintiff then asked defendant, "What is this, boot camp?" Defendant replied, "That's it. You are under arrest," turned plaintiff around, handcuffed him, and led him to a police cruiser. Defendant took plaintiff to the state police barracks, where he was again handcuffed and shackled to a wall. Plaintiff testified that he was left alone in that position for about forty-five minutes. After spending approximately one hour in custody, plaintiff was released to his parents.

Plaintiff was arraigned ³ the next month on the charge of disorderly conduct, in violation of 13 V.S.A. § 1026(3), and pled not guilty. Several scheduled jury draws for the case were continued, and in mid-January, shortly after a jury was drawn, the state's attorney dismissed the charge against plaintiff.

In granting judgment for defendant in this matter, the trial court held that defendant was protected from suit by the doctrine of official immunity. ⁴ Official immunity "is available in some circumstances to shield public officials from lawsuits against them based on their activities." Levinsky v. Diamond, 151 Vt. 178, 183, 559 A.2d 1073, 1078 (1989), overruled in part on other grounds by Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990). The protection from suit afforded a state employee such as defendant is qualified, not absolute: defendant is entitled to qualified immunity if he was "(1) acting during [his] employment and acting, or reasonably believing [he was] acting, within the scope of [his] authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts." Id. at 185, 559 A.2d at 1078.

There is no dispute that defendant was acting within the scope of his authority, and that his arrest of plaintiff was a discretionary, rather than a ministerial, act. The key question in this matter is whether defendant acted in good faith. As a general matter, good faith exists if the "official's acts did not violate clearly established rights of which the official reasonably should have known." Murray v. White, 155 Vt. 621, 630, 587 A.2d 975, 980 (1991) (footnote omitted).

A law enforcement officer making a warrantless arrest, as happened here, acts in good faith if the officer had probable cause to make the arrest. See Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991) (Secret Service agents entitled to immunity if reasonable officer could have believed under the circumstances that probable cause existed for arrest). The officer can make a mistake in finding probable cause, but the arrest must be one a reasonable police officer could have believed was lawful, given the established law and circumstances at the time. Id. Thus, an arresting officer is entitled to qualified immunity if the officer had an objectively reasonable belief that probable cause to arrest existed, or if officers of reasonable competence could disagree as to whether there was probable cause. Lennon v. Miller, 66 F.3d 416, 423-24 (2d Cir.1995).

Accepting plaintiff's testimony as true, plaintiff was arrested because, speaking in a conversational tone, he used the word "fucking" in response to a question asked by a police officer at a DUI checkpoint. ⁵ The narrow question before us is whether, based on this version of the facts, defendant acted reasonably in concluding that this statement established probable cause to arrest plaintiff on a disorderly conduct charge. Defendant maintains that, given the language of the disorderly conduct statute, his belief that probable cause existed to arrest plaintiff for that offense was in fact objectively reasonable. The statute provides:

A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof:

....

(3) In a public place uses abusive or obscene language ...

....

shall be imprisoned for not more than 60 days or fined not more than $500.00 or both.

13 V.S.A. § 1026. According to defendant, plaintiff's use of an expletive while speaking to an officer at a police checkpoint could reasonably have been viewed as a violation of this provision, at least prior to our decision in State v. Read, 165 Vt. 141, 680 A.2d 944 (1996). In Read we recognized that the reach of the "abusive language" provision of § 1026(3) must be narrowed to conform to constitutional requirements, and held that "[p]rosecution under that provision is appropriate only when a defendant's spoken words, when directed to another person in a public place, 'tend to incite an immediate breach of the peace.' " Id. at 148, 680 A.2d at 948 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)).

We agree with defendant that our holding in Read cannot stand as proof that defendant violated plaintiff's clearly established rights at the time of this incident, which occurred several years earlier. Obviously, police officers are not required to "predict[ ] the future course of constitutional law." Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967). The logical corollary to that statement, however, is that reasonable police officers are presumed to have knowledge of the current state of constitutional law, at least as it applies to their duties. Plaintiff relies not on Read but on United States Supreme Court decisions reversing disorderly conduct convictions on grounds that the statutes violated the right to freedom of speech protected by the First...