Cook v. Nelson

Cook v. Nelson  (97-054); 167 Vt. 505; 712 A.2d 382

[Opinion Filed 13-Mar-1998]

[Motion for Reargument Denied 7-Arp-1998]


       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. 97-054


Craig Cook                                   Supreme Court

                                             On Appeal from
    v.                                       Addison Superior Court

Thomas Nelson, et al.                        October Term, 1997


Matthew I. Katz, J.

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.


PRESENT: Dooley, Morse and Johnson.


       DOOLEY, J.   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 States 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 states 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 (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.  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., Dkt. No. 97-010 (Vt. Jan. 23, 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 9.

       The motivation exception accepted in Rich is more narrow than that
  asserted by plaintiff here.  In Rich, plaintiff could prevail if his
  protected speech "was a substantial or motivating factor in his dismissal,"
  id. at 7, and we found that there was enough evidence for plaintiff to
  reach the jury on that claim.  See id. at 8.  We held that the qualified
  immunity analysis must, therefore, assume that defendant acted in
  retaliation for plaintiff's speech and that plaintiff's right not to be
  fired for that purpose was clearly established.  As a result, qualified
  immunity could not be used to end run the jury's determination of
  defendant's motive in firing plaintiff.

       Plaintiff's position in this case would be like that of the plaintiff
  in Rich if any prosecution commenced for malicious purposes were tortious. 
  The tort of malicious prosecution has, however, an additional element: 
  that the prosecution be commenced without probable cause.  See Fay v. Van
  Ells, 134 Vt. 536, 541, 367 A.2d 167, 171 (1976).  This element does not
  involve defendant's motivation and is the element to which qualified
  immunity relates.  Even

 

  if defendant's acts were maliciously motivated, we must judge for qualified
  immunity purposes whether a reasonable officer in the position of defendant
  would have known that plaintiff's action in bringing a gun into the
  barracks did not subject him to criminal liability.  The trial court's
  conclusion that plaintiff's right to bring the gun into the barracks was
  not clearly established did not undermine the jury's finding that defendant
  acted maliciously.  Instead, it went to probable cause, immunizing
  defendant from personal liability because his determination that there was
  probable cause to issue the citation, although erroneous, was objectively
  reasonable.

       We decline plaintiff's argument to expand the rationale for Rich to
  reach this case.  We have noted that the qualified immunity analysis for
  state tort claims is different from the analysis for civil rights claims
  under 42 U.S.C. § 1983.  See Levinsky II, 151 Vt. at 192, 559 A.2d  at 1083. 
  The tort of malicious prosecution is not favored, see Chittenden Trust Co.
  v. Marshall, 146 Vt. 543, 549, 507 A.2d 965, 969 (1986); Anello v. Vinci,
  142 Vt. 583, 587, 458 A.2d 1117, 1120 (1983), and we are reluctant to use
  it to chill legitimate law enforcement activities. Although the jury must
  find that defendant acted with malice, the malice is often implied, based
  on the finding of absence of probable cause.  See Chittenden Trust Co., 146
  Vt. at 550, 507 A.2d  at 970; Barron v. Mason, 31 Vt. 189, 198 (1858)
  (malice means  the want of sincere belief of the plaintiff s guilt of the
  crime for which the prosecution was instituted ); see generally Restatement
  (Second) of Torts § 668 (1977) (malice means "proceedings must have been
  initiated primarily for a purpose other than that of bringing an offender
  to justice").  We fully implement the purposes of qualified official
  immunity if we protect officers from liability based on reasonable
  determinations of probable cause even if they turn out to be erroneous.

       Plaintiff next challenges the trial court s good faith analysis
  because it misidentified the right that must be clearly established before
  defendant s immunity is overcome.  The trial court identified the right as
  that of a citizen to enter a state police barracks with a gun in the face
  of 13 V.S.A. § 4003.  Plaintiff argues that, instead, the rights involved
  are the right to bear arms and the right to be free from unreasonable
  search and seizure, and both of these rights are

 

  clearly established.

       If the rights at issue can be stated as broadly as plaintiff urges,
  they will always be clearly established and qualified immunity will rarely
  apply.  See Anderson v. Creighton, 483 U.S. 635, 639-40 (1987).  Moreover,
  broad statements of applicable rights do not implement the underlying
  policies of qualified immunity.  Knowing that plaintiff has a right to bear
  arms or be free from unreasonable searches and seizures would not help a
  police officer to understand whether plaintiff can bring a concealed weapon
  into a police barracks.  As we stated in Murray,

     [A] lack of good faith is not established by asserting that the right
     to be free from the torts alleged in plaintiff s complaint is clearly
     established.  Rather, "[t]he contours of the right must be
     sufficiently clear that a reasonable official would understand what
     he is doing violates that right . . . . [I]n the light of pre-existing
     law the unlawfulness must be apparent."

  155 Vt. at 630, 587 A.2d  at 980 (quoting Anderson, 483 U.S. at 640).  Thus,
  the right involved must be specific to the circumstances.  See Billado v.
  Appel, 165 Vt. 482, 487, 687 A.2d 84, 88 (1996).

       The trial court correctly identified the right as that of plaintiff to
  bring a gun into the state police barracks.  Plaintiff appears to concede
  that this right was not clearly established because of the presence of 13
  V.S.A. § 4003.  The criminal statute is subject to differing
  interpretations and has never been construed by this Court or the trial
  courts.

       Plaintiff next argues that qualified immunity should not be available
  as a post-judgment defense, at least not where the jury did not find the
  underlying facts.  In making this argument, plaintiff has relied on our
  holding in Murray, 155 Vt. at 626, 587 A.2d  at 978 that qualified immunity
  is an immunity from suit, not a defense to liability.  Thus, plaintiff
  argues qualified immunity must be raised and resolved pre-trial or it is
  not available.

       It is helpful to judge this argument in relation to the events in this
  case.  Plaintiff initially filed a complaint claiming that defendant had
  violated plaintiff's state and federal constitutional rights and committed
  the torts of intentional infliction of emotional distress, assault and
  battery,

 

  and defamation.  Defendant answered, in part, that he was immune from
  liability on plaintiff's claims and moved for summary judgment on that
  basis, among others.  The court dismissed most of the claims, but not the
  count for assault and battery, thereby ensuring that the case would go to
  trial.  Thereafter, plaintiff amended his complaint to include the count of
  malicious prosecution.  Although defendant raised qualified immunity in the
  answer to the amended complaint, he could not rely on qualified immunity to
  avoid discovery and trial.

       As the events demonstrate, defendant did not waive pre-trial
  resolution of the case based on qualified immunity.  He vigorously pursued
  immunity until the court s ruling made clear that he would not avoid a
  trial.  Plaintiff would have us rule that because of the trial court s
  initial decision, defendant lost immunity from trial and any defense to
  liability.

       Although we have encouraged early resolution of immunity claims, and
  allowed interlocutory review to fully implement its purposes, nowhere have
  we suggested that official immunity is unavailable as a defense when
  pretrial resolution of the case is impossible.  The original purpose of
  official immunity was to insulate certain officials from "civil liability."
  Levinsky II, 151 Vt. at 184, 559 A.2d  at 1078.  We note that the federal
  courts have generally allowed official immunity to be raised as a defense
  to liability at any stage of the proceeding. See Krause v. Bennett, 887 F.2d 362, 368 n.3 (2d Cir. 1989); Alvarado v. Picur, 859 F.2d 448, 451 n.3
  (7th Cir. 1988); Martin v. Eastlake, 686 F. Supp. 620, 626-30 (N.D. Ohio
  1988).  We follow these decisions in allowing defendant to raise official
  immunity as a trial defense if the issue is not resolved prior to trial.

       Finally, plaintiff argues that the claim of qualified immunity should
  have been submitted to the jury for their resolution or for special
  interrogatories to resolve the factual disputes.  The court may grant a
  judgment as a matter of law against a party on an issue where "there is no
  legally sufficient evidentiary basis for a reasonable jury to find for that
  party on that issue." V.R.C.P. 50(a) (Cum. Supp. 1997).  If there is a
  reasonable dispute of fact bearing on the availability of qualified
  immunity, it must be resolved by the fact-finder, in this case the jury.

 

  See Sabia, 165 Vt. at 525, 687 A.2d  at 475.

       Because of the objective nature of the good faith test, it is often
  appropriate to resolve the applicability of qualified immunity as a matter
  of law.  This was such a case.  The court's ruling assumed all facts as
  plead by plaintiff and disclosed by the evidence.  The question of whether
  a reasonable officer would have recognized a clearly established right to
  bring the gun into the barracks, without criminal liability under 13 V.S.A.
  § 4003, was one of law that the court could resolve without factual
  determinations by the jury.  There was no error in failing to submit
  qualified immunity to the jury.

       Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice