Cook v. Nelson

• Decision Date: 13 March 1998
• Docket Number: No. 97-054,97-054
• Citation: 712 A.2d 382,167 Vt. 505
• Parties: Craig COOK v. Thomas NELSON, et al.
• Court: Vermont Supreme Court

Page 382

712 A.2d 382

167 Vt. 505

Craig COOK v. Thomas NELSON, et al.

No. 97-054.

Supreme Court of Vermont.

March 13, 1998.

Motion for Reargument Denied

April 7, 1998.

David F. Kelley, Orleans, for Plaintiff-Appellant.

William H. Sorrell, Attorney General, Timothy B. Tomasi, Assistant Attorney General, and Cindy Maguire, Special Assistant Attorney General, Montpelier, for Defendant-Appellee.

Before DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Plaintiff Craig Cook filed a malicious prosecution action against defendant state police officer Thomas Nelson, contending that defendant unjustifiably issued him a citation charging him with violating 13 V.S.A. § 4003 (carrying a firearm into a state institution). An Addison Superior Court jury returned a verdict in favor of plaintiff and awarded him $10,000 in damages. Finding that defendant was entitled to qualified immunity for the actions for which he was sued, the presiding judge set aside the verdict and granted defendant a judgment as a matter of law pursuant to V.R.C.P. 50(b). Plaintiff appeals this decision claiming that (1) qualified immunity is inapplicable because of the jury verdict against defendant; (2) qualified immunity is inapplicable because plaintiff's right to be free from prosecution was clearly established; (3) qualified immunity should not be available as a post-judgment defense; and (4) even if qualified immunity can be used as a post-judgment defense, the defense was waived because defendant did not request that the jury be provided with instructions or special interrogatories on the defense. In addition to defending the decision of the trial court, defendant argues that the tort of malicious prosecution does not apply because plaintiff was never prosecuted. We affirm without reaching the additional ground raised by defendant.

In January of 1993, plaintiff was involved in divorce and child custody proceedings with his estranged wife. Plaintiff believed that a Vermont State Police trooper in the Williston barracks had in his possession drug paraphernalia that had been confiscated from his wife during a police search of his home. Plaintiff hoped to use this evidence in the child custody proceeding to demonstrate that his wife was unfit to have custody. On January 17, 1993, plaintiff went to the Vermont State Police's Williston barracks to speak with the trooper about this evidence. He was informed that the trooper was unavailable but would be returning sometime after 5:00 p.m.

Plaintiff was a licensed armed security guard. On January 17, plaintiff was carrying a .40 caliber semi-automatic pistol and was wearing a bullet-proof vest. Two days earlier, after plaintiff attempted to enter the Chittenden Family Court while carrying his gun, the presiding judge of that court had notified the Williston state police barracks that plaintiff had a gun.

When plaintiff returned to the Williston barracks on January 17, defendant met him and asked him whether he was carrying a gun. When plaintiff answered that he was, defendant and two other state police officers placed him under arrest for violating 13 V.S.A. § 4003. That statute provides:

A person ... who carries a dangerous or deadly weapon within any state institution ... without the approval of the warden or superintendent of the institution, shall be imprisoned not more than two years or fined not more than $200.00, or both.

After plaintiff was placed in custody, defendant issued him a citation to appear in court to answer to the charge of carrying a dangerous weapon into a state institution and released him.

Defendant issued a press release stating that plaintiff was arrested and charged with carrying a deadly weapon within a state institution. The story was covered by the Burlington newspaper and on the television news. Shortly thereafter, plaintiff was fired from his job.

Defendant sent the Chittenden County state's attorney a memorandum in support of the criminal charge against plaintiff. In that memo, he stated that he had been part of the Vermont Governor's security detail and, as a result of an incident when a citizen brought a gun into the Governor's office, had identified 13 V.S.A. § 4003 as a statute that could be used in such a case. He argued that the state police barracks was an "institution" under the statute. He also argued that the State Buildings Department had the right to establish rules for the use of state buildings and had adopted a rule prohibiting the carrying of firearms on the property. He argued that plaintiff should be prosecuted because he had a history of threatening police officers and others. The state's attorney decided not to prosecute.

Plaintiff then brought suit in Addison Superior Court claiming (1) a violation of his federal civil rights actionable under 42 U.S.C. § 1983, (2) a violation of his rights under the Vermont Constitution, (3) assault and battery (4) defamation, and (5) intentional infliction of emotional distress. By later amendment, he added claims for (6) false arrest, (7) false imprisonment, and (8) malicious prosecution. Defendant responded by raising various defenses, including the defense of absolute and qualified official immunity. The court granted summary judgment to defendant on all counts except for assault and battery, false imprisonment and malicious prosecution. After a three-day trial, the jury found for plaintiff on the malicious prosecution claim and awarded damages in the amount of $10,000. Defendant moved for judgment as a matter of law at the close of plaintiff's case and after the verdict. The court granted the post-verdict motion based on the defense of qualified immunity.

In its decision, the trial court reasoned that defendant was protected by qualified official immunity if he acted in good faith. The court applied the objective test of good faith set forth in Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), which provides that government officials performing discretionary functions are immune "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. 2727. The court noted that immunity may apply even if the official is not legally correct and acted with ill will or malice. Although the court ruled that § 4003 did not apply to weapons in state police barracks, it held that the statute was sufficiently vague that a reasonable police officer would not know that it did not prohibit carrying a weapon in such a situation. Thus, it ruled that plaintiff's right to carry the weapon was not clearly established, and defendant's immunity was a complete defense to plaintiff's malicious prosecution claim. Accordingly, it granted defendant judgment as a matter of law, notwithstanding the jury verdict. This appeal followed.

Plaintiff attacks the trial court's qualified immunity ruling on a number of grounds. We start by summarizing the law of qualified immunity. Such immunity protects lower-level government employees from tort liability when they perform discretionary acts in good faith during the course of their employment and within the scope of their authority. See Sabia v. Neville, 165 Vt. 515, 520, 687 A.2d 469, 473 (1996). Even in applying qualified official immunity to state tort law claims, we use the federal objective good faith standard "to prevent exposing state employees to the distraction and expense of defending themselves in the courtroom." Id. at 521, 687 A.2d at 473. The outcome of the analysis depends on the objective reasonableness of the official's conduct in relation to settled, clearly-established law. See id.; Murray v. White, 155 Vt. 621, 630, 587 A.2d 975, 980 (1991). Thus, if the official's conduct does not violate clearly-established rights of which a reasonable person would have known, the official is protected by qualified immunity from tort liability.

As the trial court emphasized, it is possible that an official will act out of improper motives and, nevertheless, be protected from state tort claims by official immunity. Indeed, that is the case here because the jury found that defendant acted with malice to plaintiff in reaching its malicious prosecution verdict. Thus, plaintiff's first argument is that the jury's verdict of malice should govern and defendant should be liable because he acted with improper motives.

The short answer to plaintiff's argument is that we have already decided the issue against his position. We adopted the federal objective good faith test of qualified immunity in Levinsky v. Diamond, 151 Vt. 178, 190, 559 A.2d 1073, 1086 (1989) (Levinsky II ). Levinsky was itself a malicious prosecution action in which an element of the tort was the malice of defendant. See Levinsky v. Diamond, 140 Vt. 595, 599-600, 442 A.2d 1277, 1280 (1982) (Levinsky I ). Nevertheless, we applied the objective good faith analysis in holding that the actions of assistant attorneys general were protected by qualified official immunity. See Levinsky II, 151 Vt. at 190, 559 A.2d at 1086. Under Levinsky II, defendant in this case is entitled to immunity if he acted in objective good faith despite the jury's finding that he acted with malice to plaintiff.

We recognize that we have recently applied a contrary approach in Rich v. Montpelier Supervisory Dist., --- Vt. ----, 709 A.2d 501 (1998), a superficially similar case. In Rich, a teacher alleged that the superintendent's decision not to renew his teaching contract was made in retaliation for public comments the teacher made about certain school board decisions and, therefore, violated the teacher's First Amendment rights. The superintendent argued that his conduct was protected by qualified immunity under the objective good faith test. We disagreed because "defendant's motivation ... is an essential element of plaintiff's claim that his constitutional rights were violated." Id. at ----, 709 A.2d at 507.

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