Long v. L'Esperance

Long v. L'Esperance  (96-082); 166 Vt. 566; 701 A.2d 1048

[Filed 11-Jul-1997]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-082


David Long                                   Supreme Court

                                             On Appeal from
    v.                                       Windham Superior Court

Thomas L'Esperance                           January Term, 1997


Robert Grussing III, J.

       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


       PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
  (Ret.), Specially Assigned


       JOHNSON, J.   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.(FN1)  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,(FN2) 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, 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 (FN3) 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.(FN4)  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 (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.(FN5)
  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, ___ Vt. ___, 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 ___, 680 A.2d  at 948
  (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (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 (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 Amendment.  See Hess v. Indiana, 414 U.S. 105 (1973); Cohen v.
  California, 403 U.S. 15 (1971).  Defendant is charged with knowing
  plaintiff's constitutional rights under these and related decisions, and we
  therefore evaluate defendant's decision to arrest plaintiff in light of
  these precedents.(FN6)  Cf. Hebert v. State, ___ Vt. ___, ___, 679 A.2d 887,
  889-90 (1996) (United States Supreme Court precedent and related decisions
  of United States Courts of Appeals establish prisoner's constitutional
  right to medical attention).

       The United States Supreme Court has long recognized that persons may
  not be arrested for uttering constitutionally protected speech.  See, e.g.,
  Gooding v. Wilson, 405 U.S. 518, 521-22 (1972) (constitutional guarantees
  of freedom of speech forbid states to punish use of words or language not
  within narrowly limited classes of speech).  Certainly, plaintiff had a
  right to

 

  express peacefully his displeasure with the police roadblock.  See City of
  Houston v. Hill, 482 U.S. 451, 462-63 (1987) ("The freedom of individuals
  verbally to oppose or challenge police action without thereby risking
  arrest is one of the principal characteristics by which we distinguish a
  free nation from a police state."); Cohen, 403 U.S.  at 18 (defendant could
  not be punished for expressing his opinion about draft).  He could be
  arrested for expressing his  views only if his manner of doing so removed
  his speech from the realm of constitutional protection. See Cohen, 403 U.S.  at 19-20 (First Amendment right not absolute; state may validly regulate
  speech that is obscene or that qualifies as "fighting words").

       Plaintiff's manner of expressing his dislike of the roadblock -- using
  an expletive as a descriptive adjective, not directed personally at
  defendant or anyone else -- does not fall within one of the narrowly
  limited classes of speech that may be punished by the State.  See Hess, 414 U.S.  at 107 (statement by participant in antiwar demonstration that
  "[w]e'll take the fucking street later" did not fall within one of limited
  classes of speech that state may punish).  His comment cannot be classified
  as "fighting words"; it did not "`inflict injury or tend to incite an
  immediate breach of the peace.'"  Gooding, 405 U.S.  at 522 (quoting
  Chaplinsky, 315 U.S. at 572); see also Hess, 414 U.S.  at 107-08 (use of
  expletive, though offensive, could not be considered "fighting words"). 
  Nor was the comment obscene.  "Whatever else may be necessary to give rise
  to the States' broader power to prohibit obscene expression, such
  expression must be, in some significant way, erotic."  Cohen, 403 U.S.  at
  20; see also Roth v. United States, 354 U.S. 476, 487 (1957) ("Obscene
  material is material which deals with sex in a manner appealing to prurient
  interest.").  Plaintiff's phrasing may have been vulgar, but it was
  entirely unrelated to sexual activity or sexual desire.(FN7)  See Cohen, 403 U.S.  at 16, 20 (phrase "Fuck the Draft" not obscene); Diehl v. State, 451 A.2d 115, 119-20 (Md. 1982)

 

  (expletive directed at police officer not obscene where comment was not
  intended to excite sexual desire in officer).  By speaking so crudely,
  plaintiff may have offended some, including defendant, but he did not
  "invade a substantial privacy interest[]" in a manner that would warrant
  government intervention.  Cohen, 403 U.S.  at 21; see also Rowan v. United
  States Post Office, 397 U.S. 728, 738 (1970) (government may act to
  prohibit intrusion into privacy of home of unwelcome views and ideas).  In
  short, we can find no constitutional basis for punishing the statement made
  by plaintiff.

       We must determine, then, whether defendant could reasonably have
  relied on 13 V.S.A. § 1026(3) to make an arrest that, taking plaintiff's
  testimony as true, was clearly unlawful under controlling Supreme Court
  precedents.  We note first that looking solely at the language of the
  statute, without reference to the law of free speech, defendant's claim
  that plaintiff's statement violated the statute is extremely weak.  The
  evidence does not suggest that plaintiff intended "to cause public
  inconvenience, or annoyance or recklessly creat[ed] a risk thereof."  Id. §
  1026(3). He merely answered a question asked by defendant, in a way that
  defendant did not like.  Any inconvenience to the public resulted from
  defendant's reaction, not from plaintiff's statement.(FN8)

       Moreover, the relevant Supreme Court decisions that established
  plaintiff's right to make a statement such as this one are numerous,
  longstanding and clear, and involve factual situations similar to this
  case.  Free speech is a fundamental right in our society, and its contours
  are well-established.  Assuming that a reasonable officer could interpret
  the disorderly conduct statute to cover plaintiff's conduct, see Lennon, 66 F.3d  at 424-25 (qualified immunity protects officers from suit where
  reasonable officer could have made same mistake in interpreting criminal

 

  statute), a reasonable officer nonetheless could not have believed that
  such an interpretation was constitutionally valid.  Cf. Pierson, 386 U.S.  at 557 (officers excused from liability for acting under statute they
  reasonably believed to be valid).  A reasonable police officer would have
  understood that arresting plaintiff merely for uttering an expletive
  violated plaintiff's clearly established right to free speech, and in turn,
  his right not to be arrested without probable cause. See Murray, 155 Vt. at
  630, 587 A.2d  at 980 (1991) (contours of right must be sufficiently clear
  that reasonable official would understand that what he is doing violates
  that right).  Based on the evidence presented by plaintiff, defendant did
  not act in good faith and is not entitled to official immunity.

       Defendant further argues that he is protected from suit by 12 V.S.A. §
  5602.  The trial court did not rest its decision on this ground, but it was
  argued below, and we will consider it here.  See Hudson v. Town of East
  Montpelier, 161 Vt. 168, 170, 638 A.2d 561, 563 (1993) (we need not adopt
  trial court's rationale in affirming its conclusion).  Although § 5602 does
  protect state employees from suit by providing that under certain
  circumstances "the exclusive right of action shall lie against the state of
  Vermont," 12 V.S.A. § 5602(a), the statute explicitly does not apply "to
  gross negligence or willful misconduct."  Id. § 5602(b).  As we have
  already discussed, based on the evidence presented by plaintiff, defendant
  should have known that his arrest of plaintiff was unlawful.  A jury could
  find that his decision to arrest plaintiff under these circumstances
  amounted to gross negligence or willful misconduct.  See Hardingham v.
  United Counseling Serv., 164 Vt. 478, 481, 672 A.2d 480, 483 (1995)
  (question of gross negligence usually for jury, unless reasonable minds
  could not differ on issue).

       Finally, we reject defendant's argument that plaintiff failed to
  support his claim of intentional infliction of emotional distress.  To
  prevail on this claim, plaintiff must demonstrate that defendant's conduct
  was outrageous, that he acted intentionally or with reckless disregard of
  the probability of causing emotional distress, and that defendant's
  outrageous conduct was the actual or proximate cause of plaintiff's extreme
  emotional distress.  Crump v. P & C Food

 

  Markets, Inc., 154 Vt. 284, 296, 576 A.2d 441, 448 (1990).  Accepting
  plaintiff's evidence as true, defendant arrested plaintiff without legal
  justification.  This is sufficient evidence for the case to go to a jury on
  the elements of intentional infliction of emotional distress.  Cf. id. at
  296-97, 576 A.2d  at 448-49 (describing evidence sufficient to raise jury
  question on intentional infliction of emotional distress claim).

       As we conclude that the court erred in granting defendant judgment as
  a matter of law on all claims, we remand the matter for trial.  In light of
  our disposition, we do not address plaintiff's claim that the court abused
  its discretion by denying plaintiff's motions for a new trial and for
  amended judgment.

       Reversed and remanded for further proceedings consistent with this
  opinion.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice


  ------------------------------------------------------------------------------
                                  Footnotes



FN1.  The Vermont Department of Public Safety and the Commissioner of
  Public Safety were also named as defendants below.  Plaintiff does not
  contest the trial court's dismissal of all claims against these defendants.

FN2.  Prior to the 1995 amendment to V.R.C.P. 50, the Rule referred to
  "directed verdict." The change was made to conform with Federal Rule 50 and
  to eliminate the confusion created by the phrase "directed verdict." 
  Reporter's Notes -- 1995 Amendment, V.R.C.P. 50.  The standard for granting
  such a motion has not changed.  Id.

FN3.  Defendant argues that the judicial finding of probable cause is
  "powerful evidence" that his arrest of plaintiff was based on probable
  cause.  As we have discussed, however, our review is based solely on
  plaintiff's evidence, and we must consider that evidence in the light most
  favorable to plaintiff.  The charging judge presumably heard defendant's
  version of the incident, which may vary greatly from the version presented
  by plaintiff and his brother.

       FN4.  Plaintiff claims that defendant was precluded from invoking
  official immunity as a basis for his motion for judgment as a matter of law
  because defendant did not assert it as a defense in his answer.  Despite
  ample opportunity to do so, plaintiff never raised this issue to the trial
  court.  Defendant first invoked official immunity in his trial brief, and
  raised it again in his motion for judgment as a matter of law.  Yet even
  plaintiff's postjudgment motion for a new trial, which squarely challenges
  the court's conclusion that official immunity applied, does not suggest
  that defendant should have been barred from relying on the defense.  Having
  failed to raise the issue below, plaintiff may not do so on appeal.  See
  Dunning v. Meaney, 161 Vt. 287, 292, 640 A.2d 3, 6 (1993); In re Johnston,
  145 Vt. 318, 321, 488 A.2d 750, 756 (1985) (issues not raised below will
  ordinarily not be considered on appeal).

FN5.  Plaintiff's description of the encounter suggests that his
  arrest was actually prompted by his "boot camp" comment.  Neither defendant
  nor the trial court rely on this statement as an appropriate basis for the
  arrest.

       FN6.  Defendant argues that plaintiff may not rely on these cases
  because he failed to cite them to the trial court.  We have never held that
  a party is precluded from citing a case on appeal because it was not cited
  below.

FN7.  Defendant points out that plaintiff testified that some people
  might find his comment obscene.  Plaintiff also testified that he did not
  know either the legal or dictionary definitions of obscene, and that his
  comment had nothing to do with sex.  We do not view plaintiff's testimony
  as relevant to this issue.

FN8.  Defendant points to plaintiff's brief pause before pulling over
  to the side of the road as evidence that plaintiff recklessly risked
  inconveniencing or delaying the officers and other drivers at the
  checkpoint.  Plaintiff's arrest, however, was based on his statement, not
  on an alleged failure to comply with defendant's request.  Moreover,
  plaintiff explained his reaction as prompted by a desire to act
  "deliberate[ly]" and "slow[ly]" in the presence of a police officer. He
  also denied that defendant had to ask him a second time to pull over. 
  Viewing the evidence in the light most favorable to plaintiff, that
  plaintiff "paused for a moment but . . . did not delay"  before pulling
  over, does nothing to bolster the disorderly conduct charge.