Sanborn et al v. Jennings et al
Filing
41
OPINION & ORDER granting 29 Motion for Summary Judgment. Signed by Judge William K. Sessions III on 8/8/2013. (law)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
CEDRIC SANBORN and
LESLIE SANBORN,
Plaintiffs,
v.
WILLIAM JENNINGS and the
CITY OF MONTPELIER,
Defendants.
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No. 2:12-cv-00228-wks
OPINION & ORDER
This action stems from Cedric and Leslie Sanborn’s arrests
and citations for unlawful trespass for kayaking on Berlin Pond.
The Sanborns brought claims pursuant to 42 U.S.C. §§ 1983, 1988;
the Fourth, Fifth, and Fourteenth Amendments to the United
States Constitution; Chapter 1, Articles 1, 10, and 11 of the
Vermont Constitution; and the common law of Vermont, against
Officer William Jennings (“Officer Jennings” or “Jennings”), in
his individual and official capacities, and against the City of
Montpelier.
See Compl., ECF No. 1, Ex. A ¶ 1.
Defendant
Jennings filed a motion for summary judgment on the grounds that
1) he had probable cause to issue a citation to Plaintiffs for
unlawful trespass on Berlin Pond and 2) he is entitled to
qualified immunity from all of Plaintiffs’ claims.
Def.
Jennings’s Mot. Summ. J. (“Def. Mot. Summ. J.”), ECF No. 29.
For the reasons described below, Defendant Jennings’s motion for
summary judgment is granted.
FACTUAL SUMMARY
Berlin Pond is a natural body of water, roughly two miles
long and covering approximately 256 acres.
See Def. Jennings’s
Local Rule 56(a) Statement Undisputed Material Facts (“Def.’s
Facts”), ECF No. 29-3 ¶ 1.
Berlin Pond has supplied Montpelier
with water since 1884, even though the Pond is located inside
the Town of Berlin.
Id.
Although Montpelier owns most of the
land surrounding the Pond, the City does not own the Pond
itself.
City of Montpelier v. Barnett, 191 Vt. 441, 445-46
(2012).
Nonetheless, Montpelier placed “no trespassing” signs
around Berlin Pond and regulated its use.
In 2009, Cedric and Leslie Sanborn, along with Richard
Barnett, began to explore the possibility of using Berlin Pond
for recreation.
See Def.’s Facts ¶ 10.
At all relevant times,
the Sanborns employed Barnett at their sporting goods store.
See id.
The Sanborns and Barnett hoped kayaking on Berlin Pond
would result in the pond’s proper ownership being taken up in
court.
See Tr. Prelim. Inj. Hr’g, ECF No. 29-13, Ex. G ¶ 15.
On July 30, 2009, Montpelier Chief of Police Anthony Facos
found Barnett kayaking on Berlin Pond when he responded to a
trespassing complaint.
See Def.’s Facts ¶ 12.
Chief Facos
ordered Barnett to remove his boat and himself from the pond and
2
issued him a citation for unlawful trespass.
Id.
On August 20,
2009, the Washington County States’ Attorney informed Barnett no
charges would be filed against him.
Barnett Aff., Ex. 17 ¶ 9.
There is no evidence to suggest that Officer William Jennings
was aware of this decision nor the impact of such a
determination on future prosecutions.
On September 6, 2009, Jennings arrived at Berlin Pond after
receiving a trespass complaint.
Def.’s Facts ¶ 26.
When he
arrived, Jennings observed the Sanborns kayaking on the pond.
Id.
The Sanborns told Jennings that they “had a good idea” why
he was there, but claimed the pond’s “no trespassing” signs were
no longer valid, and that the pond was public.
28, 29; Pls. Resp. ¶ 6.
Def. Facts ¶¶
Mr. Sanborn said it was a “difference
of opinion” as to whether kayaking was allowed on the pond.
Def.’s Facts ¶ 29.
Jennings asked the Sanborns to meet him at
the Montpelier Police Department, where the Sanborns were issued
a citation to appear for arraignment on October 22, 2009.
31.
Id. ¶
The Sanborns were charged with four counts: intentional
violation of a state health order in violation of Vt. Stat. Ann.
tit. 18 §§ 122, 130; intentional interferences with a protected
drinking water source in violation of Vt. Stat. Ann. tit. 10 §
1682; violation of Montpelier's ordinance against misusing a
reservoir; and violation of Montpelier's ordinance prohibiting
trespassing on city property or resources.
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Barnett, 191 Vt. at
447.
The State’s Attorneys Office ultimately did not pursue the
charges against the Sanborns.
Def.’s Facts ¶ 38.
On January 28, 2011, the Washington Superior Court granted
the City of Montpelier a permanent injunction against the
Sanborns and Barnett, which precluded them from trespassing on
the City's property surrounding Berlin Pond and from boating,
fishing, or swimming in Berlin Pond.
Barnett, 191 Vt. at 448.
In 2012, the Vermont Supreme Court reversed.
Id. at 453.
As early as 1911, the Vermont Supreme Court upheld a
conviction for bathing in Berlin Pond in violation of a 1903
State Board of Health order.
Barnett, 191 Vt. at 454 (citing
State v. Morse, 84 Vt. 387 (1911)).
In 1926, the State Board of
Health issued the following order: “Boating, fishing and bathing
in the waters of Berlin Pond, of its tributaries for a distance
of one-half mile from their mouths, of the outlet of Berlin Pond
to the Montpelier Reservoir, and of the Montpelier Reservoir are
hereby prohibited.”
Id. at 454; see also State v. Quattropani,
99 Vt. 360 (1926) (upholding the order).
The legal effect of
the 1926 Board of Health order remained in dispute until the
Vermont Supreme Court decided Barnett in 2012.
Id. at 455-57.
DISCUSSION
A motion for summary judgment should be granted if there is
“no genuine issue as to any material fact and . . . the moving
party is entitled to a judgment as a matter of law.”
4
Harlen
Assocs. v. Incorporated Village of Mineola, 273 F.3d 494, 498
(2d Cir. 2001) (quoting Fed. R. Civ. P. 56(c)).
An issue of
genuine fact arises when a “reasonable jury could return a
verdict for the nonmoving party.”
SCR Joint Venture L.P. v.
Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009).
A fact is
material if it “might affect the outcome of the suit under the
governing law.”
Id.
Summary judgment cannot be defeated by
mere conjecture, allegations, or speculations without hard
evidence for support.
D’Amico v. City of New York, 132 F.3d
145, 149 (2d Cir. 1998).
The Court need not address issues related to the legality
of the arrests and prosecution.
Jennings is entitled to
qualified immunity, and allegations against him are dismissed.
The doctrine of qualified immunity “protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
This
allows government officials to make reasonable but mistaken
judgments about open legal questions.
S.Ct. 2074, 2085 (2011).
Ashcroft v. al-Kidd, 131
Qualified immunity protects all but
the “plainly incompetent” and “those who knowingly violate the
law.”
Saucier v. Katz, 533 U.S. 194, 202 (2001).
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Qualified immunity is an affirmative defense, and the
burden is on the defendant-official to establish it on a motion
for summary judgment.
Cir. 2013).
Bailey v. Pataki, 708 F.3d 391, 404 (2d
In qualified immunity cases, the concern is not
whether the defendant’s conduct was correct, but rather whether
the defendant’s chosen course of action was objectively
reasonable given the circumstances.
416, 421 (2d Cir. 1995).
Lennon v. Miller, 66 F.3d
If a court determines that the only
conclusion a rational jury could reach is that reasonable
officers would disagree about the legality of the defendants'
conduct under the circumstances, summary judgment for the
officers is appropriate.
Id.
An officer is not put on notice
that his conduct would be clearly unlawful if either (1) his
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known or (2) it was objectively reasonable for him to believe
that his actions were lawful at the time of the challenged act.
Cerrone v. Brown, 246 F.3d 194 (2d Cir. 2001).
The objective reasonableness of an officer’s actions is
decided without regard to underlying intent.
161 Vt. 163, 165 (1993).
Coll v. Johnson,
“An officer's determination is
objectively reasonable if there was arguable probable cause at
the time of arrest -- that is, if officers of reasonable
competence could disagree on whether the probable cause test was
6
met.”
Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.
2007).
Jennings had “arguable probable cause” if (1) it was
objectively reasonable for Jennings to believe he possessed
probable cause or (2) reasonable officers could differ over
whether there was probable cause.
See Walczyk v. Rio, 496 F.3d
139 (2d Cir. 2007).
In Vermont, “[a] police officer is immune from tort
liability when he is performing a discretionary act in good
faith during the course of his employment and is acting within
the scope of his authority.”
Livingston v. Town of Hartford,
186 Vt. 547, 550 (2009) (citing Stevens v. Stearns, 175 Vt. 428,
434 (2003)).
An act is discretionary if its performance
requires exercise of professional judgment.
Napolitano v.
Flynn, 949 F.2d 617, 622 (2d Cir. 1991) (finding officer’s act
of treating group as trespassers at motel was not ministerial).
“[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.”
(1991).
Murray v. White, 155 Vt. 621, 630
Instead, good faith exists if the “official's acts did
not violate clearly established rights of which the official
reasonably should have known.”
Id.
The Plaintiffs argue that, because they were lawfully
kayaking on Berlin Pond, Jennings violated their rights by
arresting and citing them for trespass.
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However, the right to
kayak on Berlin Pond free from arrest was not clearly
established at the time of the arrests and citations.
To
determine if a right is clearly established, courts consider:
(1) whether the right in question was defined with ‘reasonable
specificity’; (2) whether the decisional law of the Supreme
Court and the applicable circuit court support the existence of
the right in question; and (3) whether under preexisting law a
reasonable defendant official would have understood that his or
her acts were unlawful.
Jermosen v. Smith, 945 F.2d 547, 550
(2d Cir. 1991) (citing Francis v. Coughlin, 891 F.2d 43, 46 (2d
Cir. 1989)).
Montpelier’s Berlin Pond regulations were not held
invalid until the Vermont Supreme Court’s decision in Barnett,
which was almost three years after the Sanborns were arrested
and cited.
191 Vt. 441.
Before Barnett, the Vermont Supreme
Court decisions had not indicated that Montpelier’s regulations
were unauthorized.
See Vermont Woolen Corp. v. Wackerman, 122
Vt. 219, 228 (1961) (comparing the regulations forbidding
boating and swimming on Berlin Pond to the Kingsbury Branch
regulations without saying that the regulations were invalid);
State v. Hall, 119 A. 884, 885 (Vt. 1923) (declining to decide
whether boating was allowed on Berlin Pond).
In fact, two
Vermont cases previously found Montpelier’s Berlin Pond
regulations valid.
360.
See Morse, 84 Vt. 387; Quattropani, 99 Vt.
For that reason, the Sanborns’ right to kayak on Berlin
8
Pond was not clearly established until 2012, when the Vermont
Supreme Court ruled definitively on the validity of Montpelier’s
regulation of Berlin Pond.
Even if kayaking on Berlin Pond had been clearly lawful,
Jennings is still entitled to qualified immunity from the claims
if he held an “objectively reasonable belief that his actions
did not violate the plaintiff's rights, based on the information
he had at the time.”
(2d Cir. 2002).
See Loria v. Gorman, 306 F.3d 1271, 1282
Jennings acted under the good faith belief the
Sanborns violated the law by using the pond for recreational
purposes.
The Court finds that belief to be objectively
reasonable based upon the state of the law at that time.
Therefore, he is shielded by qualified immunity on the false
arrest imprisonment and malicious prosecution claims.
Jennings is also entitled to qualified immunity from the
common law negligence claim.1
Plaintiffs claim Jennings was
negligent for failing to further investigate whether they were
lawfully present on the Pond before making arrests.
However,
“the act of investigation is a discretionary one,” and Jennings
was not required to investigate further.
Amy’s Enters v.
Sorrell, 174 Vt. 623, 625 (2002)(finding liquor control
inspectors entitled to qualified immunity for acts during
1
Negligence alone cannot sustain a section 1983 claim.
v. Evans, 644 A.2d 1008, 1019 (D.C. 1994).
9
District of Columbia
investigation).
Nor was his investigation conducted negligently
in bad faith because Jennings did not completely evaluate the
Plaintiffs’ claims of innocence before making the arrests.
See
Jocks v. Tavernier, 316 F.3d 128, 136 (2d Cir. 2003) (explaining
that officers need not assess credibility of unverified claims
of justification before making arrest); Curley v. Village of
Suffern, 268 F. 3d 65, 70 (2d Cir. 2001) (explaining that
officers are not required to “explore and eliminate every
theoretical claim of innocence” before making arrest).
Jennings
is entitled to qualified immunity from the negligence claim
because he was performing, in good faith, a discretionary duty
within the scope of his employment.
CONCLUSION
For the reasons stated above, the Court grants Jennings’s
motions for summary judgment.
Dated at Burlington, in the District of Vermont, this 8th
day of August, 2013.
/s/William K. Sessions III___
William K. Sessions III
U.S. District Court Judge
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