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VERMONT SUPREME COURT FILED IN CLERK'S OFFICE ENTRY ORDER JAN 04 20:9 2019 VT 1 SUPREME COURT DOCKET NO. 2017-284 MAY TERM, 2018 Gregory W. Zullo } APPEALED FROM: } } v. } Superior Court, Rutland Unit, } Civil Division 3 State of Vermont } DOCKET NO. 555-9-14 Rdev In the above-entitled cause, the Clerk will enter: ‘The superior court’s dismissal of plaintiff's count 4 in its March 10, 2015 decision and its ‘grant of summary judgment to the State in its May 10, 2017 decision are reversed: the matter is remanded for further proceedings consistent with this opinion. FOR THE COURT: Hold E. Eaton, Jr., Concurring: Paul L. Reiber, Chief Justice be Loghae ‘Associate Justice & Robinson, Associate Justice a R. Uses Associate Justice 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 by email at: JUD-Reporter@vermont.gov or by mail at: 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. VERMONT SUPREME COURT pot FILED IN CLERK’S OFFICE JAN 04 2019 No. 2017-284 Gregory W. Zullo Supreme Court On Appeal from v. Superior Court, Rutland Unit, Civil Division State of Vermont May Term, 2018 Helen M. Toor, J. Lia Emst and James Diaz, ACLU Foundation of Vermont, Montpelier, for Plaintiff-Appellant. ‘Thomas J. Donovan, Jr., Attomey General, and Eve Jacobs-Camahan and David R. Groff, Assistant Attorneys General, Montpelier, for Defendant-Appellee. Matthew Valerio, Defender General, and Rebecca Tumer, Appellate Defender, Montpelier, for Amicus Curiae Office of the Defender General, Jeffrey T. Dickson of Dickson Law Office, PLLC, Burlington, Lindsay A. Lewis, New York, New York, and Dahlia Mignouna and Chad I. Golder of Munger, Tolles & Olson LLP, Washington D.C., for Amici Curiae National Association of Criminal Defense Lawyers, et al. David Tartter, Deputy State’s Attorney, Montpelier, for Amicus Curiae Department of State's Attorneys and Sheriffs. PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ. {1. EATON, J. In this civil rights action against the State of Vermont, plaintiff seeks declaratory relief and money damages for alleged violations of Article 11 of the Vermont Constitution arising from the stop, seizure, and search of his vehicle. The civil division of the superior court granted summary judgment to the State, concluding that although damages may be obtained in an implied private right of action directly under Article 11, in this case neither the stop, the exit order, nor the seizure and search of plaintiff's vehicle violated Article 11’s constraints against governmental searches and seizures. 412. Atiissue in this appeal is: (1) whether Article 11 provides a self-executing right of action for damages; (2) whether the Vermont Tort Claims Act (VICA) governs any such action and, if not, whether the common law doctrine of sovereign immunity shields the State from liability; (3) if the action is neither governed by the VICA nor barred by sovereign immunity, whether this Court should impose any limitations on obtaining damages against the State; and (4) assuming a damage remedy exists and plaintiff can potentially overcome any other barriers to obtaining damages against the State, whether the stop, exit order, and/or seizure and search of plaintiff's vehicle violated plaintiff's rights under Article 11, thereby entitling him to seek such relief. 13. We conclude that an implied private right of action for damages is available directly under Article 11, that the VTCA does not apply to plaintiff's suit alleging a constitutional tort, and that the common law doctrine of sovereign immunity does not bar such an action against the State, but that damages may be obtained only upon a showing that a law enforcement officer acting within the scope of the officer’s duties either acted with malice or knew or should have known that, those actions violated clearly established law. We further conclude that although the exit order would not have violated Article 11 had the initial stop been lawful, both the stop and the warrantless seizure and subsequent search of plaintiff's vehicle violated Article 11. In light of our resolution of the legal issues before us, we reverse the superior court’s grant of summary judgment {n favor of the State, as well as its dismissal of one of plaintiff's counts in an earlier decision, and we remand the matter for further proceedings consistent with this opinion. As explained below, the parties are not precluded from submitting renewed motions for summary judgment based on the law established in this opinion.