Demar v. Slusser
OPINION AND ORDER: The Court GRANTS Defendant's 26 MOTION for Summary Judgment. Signed by Judge John M. Conroy on 5/16/2017. (hbc)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
Civil Action No. 2:16–cv–36–jmc
OPINION AND ORDER
Plaintiff Michele Demar brings this action under 42 U.S.C. § 1983, alleging that
Vermont State Trooper Richard Slusser1 violated her Fourth Amendment rights by
initiating a traffic stop of a motor vehicle driven by her without having a reasonable
suspicion that she was engaged in criminal activity. (Doc. 1 at 4–5, ¶¶ 34–36.) Demar
seeks compensatory and punitive damages, and reasonable attorney fees under 42 U.S.C.
§ 1988. (Id. at 5–6.)
Presently before the Court is Slusser’s Motion for Summary Judgment, wherein
Trooper Slusser argues that there is no dispute as to any material fact and he is entitled to
judgment as a matter of law. (Doc. 26.) Slusser asserts that: (1) the subject traffic stop
was valid under the Fourth Amendment because it was supported by Slusser’s reasonable
suspicion that Demar had committed a traffic violation (id. at 6–10); and (2) Slusser is
1 Slusser notes that he has since been promoted to the rank of Sergeant (Doc. 26 at 2 n.1), but,
like Slusser himself, the Court refers to him as “Trooper” because this was his rank at the time of the
otherwise entitled to qualified immunity because it was objectively reasonable for Slusser
to believe that his conduct did not violate clearly established law (id. at 10–13). As
required by Local Rule 56, Slusser submitted a Statement of Undisputed Material Facts
with his Motion for Summary Judgment. (Doc. 26-1.) See L.R. 56(a). Demar opposes
the Motion, and has submitted a Statement of Disputed Material Facts with her
Opposition, in compliance with Local Rule 56(b). (Docs. 33, 33-1.)
Both parties have consented to direct assignment of this matter to the undersigned
Magistrate Judge. (Docs. 2, 11.) See 28 U.S.C. § 636(c). On May 4, 2017, a hearing
was held on Slusser’s Motion. For the reasons explained below, the Court GRANTS
Slusser’s Motion for Summary Judgment (Doc. 26) and DISMISSES Demar’s Complaint
The material facts, drawn predominantly from Demar’s Complaint (Doc. 1) and
Slusser’s Rule 56 Statement (Doc. 26-1), are summarized as follows. They are
undisputed unless otherwise indicated. On the morning of February 14, 2013,
Trooper Slusser was on routine patrol in his fully marked state police cruiser on Interstate
89. (Doc. 26-1 at 1, ¶ 5; see also Doc. 1 at 2, ¶¶ 5, 9.) Demar was traveling on Interstate
89 at this time, operating a Subaru Impreza bearing Vermont license plate number
FAP692.2 (Doc. 1 at 2, ¶¶ 6–7; Doc. 26-1 at 1, ¶¶ 2–3.) Slusser observed a woman
2 The parties dispute whether the license plate bore a validating sticker. (Compare Doc. 26-1 at
2, ¶ 7 (“Trooper Slusser noted that there was no validating sticker on the license plate.”), with Doc. 33-1
at 1, ¶ 7 (“The Subaru that plaintiff operated on the date in question had a validating sticker on the license
plate.” (citing Docs. 33-2–33-4)).) This factual dispute is immaterial, however, as it does not bear on the
constitutionality of the traffic stop. (See, e.g., Doc. 26 at 9; Doc. 33 at 1.)
operating this vehicle and ran a license plate check of FAP692 using the computer
assisted dispatch system (CAD) in his cruiser. (Doc. 26-1 at 2, ¶¶ 6, 8.) The CAD search
revealed that the Subaru was registered to Henry A. Demar and that he was married to a
woman named Michele Demar. (Id. ¶¶ 10–11.) “The database contained a description of
Michele Demar, her age, and her address, which was the same as Henry Demar’s.” (Id.
¶ 11.) Trooper Slusser also determined from this search that Michele Demar’s driver’s
license had been suspended “as a result of prior convictions for Driving Under the
Influence 1, Driving Under the Influence 2, and a Civil Administrative Driving
Suspension 2 (an 18-month license suspension).” (Id. at 3, ¶ 12.) The parties dispute the
extent to which Slusser confirmed that the physical appearance of the driver matched the
description of Michele Demar in the database. Demar contends that Slusser merely
observed “a female operator” and denies any implication that “Trooper Slusser
affirmatively identified [her] as the driver at any time prior to the seizure.” (Doc. 33-1
at 1, ¶ 6 (first quoting Doc. 26-3 at 2); see also Doc. 33 at 5 (“As the video depicts, the
Trooper travelled alongside the Subaru but stopped before pulling alongside the vehicle
to a point where he could have corroborated some of the alleged ‘description’ that he
received, or at least the approximate age of the driver, of which he was also allegedly
aware.”); id. at 6 (“The Defendant . . . made no effort to confirm whether the driver
matched the description of the person whom he suspected might be the driver.”).) By
contrast, Slusser states that before initiating the traffic stop he knew “that a woman
matching the description of Michele Demar was driving the car,” in addition to the
other information he discovered through the CAD search. (Doc. 26 at 3.)
Slusser activated his cruiser lights and initiated a traffic stop of the Subaru
Impreza. (Doc. 1 at 2, ¶ 10; Doc. 26-1 at 3, ¶ 13.) He approached the vehicle and asked
the driver if she was Michele. (Doc. 26-1 at 3, ¶ 16; Doc. 33-1 at 2, ¶ 16.) Demar
answered affirmatively, and Slusser stated that this was a “problem” because she had a
suspended license. (Id.) Demar admitted that her license was suspended. (Doc. 1 at 2,
¶ 13; Doc. 26-1 at 3, ¶ 17.) Slusser returned to his cruiser, ran additional CAD searches,
and confirmed with dispatch that Demar’s license was suspended. (Doc. 1 at 3,
¶¶ 18–19; Doc. 26-1 at 4, ¶ 18.) Slusser then issued Demar a citation for Driving with a
Suspended License. (Doc. 1 at 3, ¶ 21; Doc. 26-1 at 4, ¶ 19.) Demar contends that
Slusser “offered to dismiss the citation” if Demar would cooperate as an informant (Doc.
1 at 3, ¶ 22), and that Slusser “purposefully used an unlawful seizure . . . in furtherance of
his desire to recruit informants” (id. at 5, ¶ 40).
In November 2013, the day before a hearing on Demar’s Motion to Suppress and
Dismiss was scheduled in the Windsor County Superior Court, the State dismissed the
charges against Demar. (Id. at 4, ¶¶ 31–32.) Demar commenced this action on February
11, 2016 asserting that Slusser’s motor vehicle stop was an unconstitutional seizure.
Summary Judgment Standard
A moving party is entitled to summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The Court is “‘required to resolve all ambiguities
and draw all factual inferences in favor of the’ nonmovant.” Robinson v. Concentra
Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Nationwide Life Ins. Co. v.
Bankers Leasing Ass’n, 182 F.3d 157, 160 (2d Cir. 1999)). If the moving party
demonstrates that there are no genuine issues of material fact, the burden then shifts to
the nonmoving party, who must present “‘significantly probative supporting evidence’ of
a disputed fact.” Hamlett v. Srivastava, 496 F. Supp. 2d 325, 328 (S.D.N.Y. 2007)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The nonmoving
party “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
“A genuine issue of material fact is one that ‘might affect the outcome of the suit
under the governing law’ and as to which ‘a reasonable jury could return a verdict for the
nonmoving party.’” Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015)
(quoting Anderson, 477 U.S. at 248). “The trial court’s function in deciding such a
motion is not to weigh the evidence or resolve issues of fact, but to decide instead
whether, after resolving all ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that party.” Pinto v. Allstate Ins. Co.,
221 F.3d 394, 398 (2d Cir. 2000).
Fourth Amendment Claim
Trooper Slusser argues that he had a reasonable suspicion for the stop because he
knew prior to conducting the stop that the vehicle was registered to Henry Demar, that
Henry’s wife Michele Demar had a suspended license, that the Demars resided at the
same address, and that a woman matching Michele Demar’s description was driving the
car. (Doc. 26 at 3 (citing Doc. 26-1 at 2–3, ¶¶ 6, 10–12).) Demar counters that Slusser
merely observed “‘a female operator’” of the vehicle (Doc. 33-1 at 1, ¶ 6 (quoting Doc.
26-3 at 2)), and “made no effort to confirm” that she in fact matched the description of
Michele Demar (Doc. 33 at 6).
As discussed in detail below, the Court concludes that, even if Demar is correct
that the subject traffic stop was not valid under the Fourth Amendment, Slusser is entitled
to qualified immunity because reasonable officers could disagree about whether an
officer has reasonable suspicion for a traffic stop where the officer knows that the spouse
of the registered owner of the subject vehicle has a suspended license and suspects that
the spouse is the driver of the vehicle. In Pearson v. Callahan, the Supreme Court held
that, in addressing summary judgment motions that concern alleged constitutional
violations by law enforcement officers, district courts need not decide first whether a
constitutional violation occurred––especially when “the constitutional question is so
factbound that the decision provides little guidance for future cases”––if it is obvious that
reasonable officials could disagree about the legality of the challenged conduct. 555 U.S.
223, 237 (2009) (citing Scott v. Harris, 550 U.S. 372, 388 (2007) (Breyer, J., concurring)
(counseling against determining whether there is a constitutional violation where the
question is “so fact dependent that the result will be confusion rather than clarity”);
Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir. 2006) (“We do not think the law
elaboration purpose will be well served here, where the Fourth Amendment inquiry
involves a reasonableness question which is highly idiosyncratic and heavily dependent
on the facts.”)). Given this law, and the particular facts of this case, the Court opts
against reaching Demar’s Fourth Amendment claim other than considering it as part of
the qualified immunity analysis below. See, e.g., Brown v. City of New York, No. 13-CV1018 (KBF), 2016 WL 1611502, at *4 (S.D.N.Y. Apr. 20, 2016); id. at *6 (“Even if a
jury were to find that defendants’ action constituted excessive force in this situation,
defendants are nonetheless entitled to qualified immunity because not every reasonably
competent officer would have concluded that the force used in effecting plaintiff’s arrest
Trooper Slusser argues that he is protected from liability for Demar’s Fourth
Amendment claim based on the doctrine of qualified immunity. (Doc. 26 at 1, 10–13.)
Demar disagrees and contends that Slusser initiated the traffic stop without reasonable
suspicion that she was involved in criminal activity, violating clearly established law and
defeating the qualified immunity defense. (See generally Doc. 33.)
A claimant may bring suit under 42 U.S.C. § 1983 “to vindicate [her] Fourth
Amendment Rights.” Dancy v. McGinley, 843 F.3d 93, 105–06 (2d Cir. 2016).
Qualified immunity protects federal and state officials from suit, however, when an
official’s conduct “does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” White v. Pauly, 137 S. Ct. 548, 551
(2017) (per curiam) (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.”
Pearson, 555 U.S. at 231; see also Ozga v. Elliot, 150 F. Supp. 3d 178, 188–89 (D. Conn.
2015) (“The purpose of qualified immunity is to allow government officials to do their
job free from doubt that they will be sued and liable for money damages because of
actions they took that a court might one day decide w[ere] unlawful but that an
objectively reasonable official at the time would not have known to violate anyone’s
rights.”). Because qualified immunity protects defendants from “suit, not simply
liability,” Holeman v. City of New London, 425 F.3d 184, 189 (2d Cir. 2005), courts
should determine whether qualified immunity applies “long before trial” and “at the
earliest possible stage in litigation,” Hunter v. Bryant, 502 U.S. 224, 227, 228 (1991) (per
curiam) (collecting cases). See also White, 137 S. Ct. at 551 (Supreme Court noting that
it has recently “issued a number of opinions reversing federal courts in qualified
immunity cases,” and explaining that the defense “is effectively lost” if a case is
improperly allowed to proceed to trial (second quoting Pearson, 555 U.S. at 231)).
In conducting the qualified immunity analysis, the court considers whether
(1) “the official violated a statutory or constitutional right,” and (2) whether that “right
was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
court may exercise its “sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 555 U.S. at 236. “Deciding a case under prong two
saves scarce judicial resources by avoiding unnecessary decisions [about] whether certain
conduct violates a constitutional or statutory right, when it is beyond reproach that the
conduct was not objectively unreasonable in light of existing law.” Coollick v. Hughes,
699 F.3d 211, 219–20 (2d Cir. 2012) (citing Pearson, 555 U.S. at 237). As noted above,
the Court elects to do so here, because even assuming Demar has alleged facts sufficient
to make out a Fourth Amendment violation, Slusser is nevertheless entitled to qualified
immunity because he did not violate a clearly established right.
Under the “clearly established” prong, a law enforcement officer is entitled to
summary judgment on the basis of qualified immunity “[i]f the law did not put the officer
on notice that his conduct would be clearly unlawful.” Saucier v. Katz, 533 U.S. 194,
202 (2001), overruled in part on other grounds in Pearson, 555 U.S. at 240–43; see also
Ozga, 150 F. Supp. 3d at 189 (“Where, as here, qualified immunity is asserted at the
summary judgment stage, a court may grant judgment if it is clear—after viewing the
facts in the light most favorable to plaintiff—that reasonable law enforcement officers
could have disagreed about whether defendants’ conduct violated the law.” (citing
cases)). An official violates a clearly established right “when, at the time of the
challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every
‘reasonable official would have understood that what he is doing violates that right.’”3
al-Kidd, 563 U.S. at 741 (alterations in original) (quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987)).
3 If the material facts are not seriously disputed, the issue of whether a reasonable official
“should have known he acted unlawfully is a question of law better left for the court to decide” at the
summary judgment stage. Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1995) (quoting Warren v. Dwyer,
906 F.2d 70, 76 (2d Cir. 1990), cert denied, 498 U.S. 967 (1990)). The Court is also mindful that
deciding this issue is “consistent” with the duty to resolve qualified immunity as early as possible in the
proceedings. Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985)).
“For a right to be clearly established, it is not necessary to identify a case directly
on point. But precedent must have spoken with sufficient clarity to have placed the
constitutional question ‘beyond debate’ in the particular factual context at issue.” Kerr v.
Morrison, 664 F. App’x 48, 51 (2d Cir. 2016) (Summary Order) (quoting al-Kidd, 563
U.S. at 741); see also Saucier, 533 U.S. at 206 (stating that qualified immunity protects
officers from the Fourth Amendment’s sometimes “hazy border[s]”); Coollick, 699 F.3d
at 221 (“Officials are not liable for bad guesses in gray areas; they are liable for
transgressing bright lines.” (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.
1992))). Accordingly, the Supreme Court has repeatedly warned that “‘clearly
established law’ should not be defined ‘at a high level of generality,’” but instead must be
“‘particularized’ to the facts of the case.” White, 127 S. Ct. at 552 (first quoting al-Kidd,
563 U.S. at 742, then quoting Creighton, 483 U.S. at 640). “Such specificity is especially
important in the Fourth Amendment context, where the Court has recognized that ‘[i]t is
sometimes difficult for an officer to determine how the relevant legal doctrine . . . will
apply to the factual situation the officer confronts.’” Mullenix, 136 S. Ct. at 308 (first
alteration in original) (quoting Saucier, 533 U.S. at 205). Generally, only case law from
the Supreme Court and the Second Circuit in effect “at the time of the alleged violation is
relevant in deciding whether a right is clearly established,” Moore v. Vega, 371 F.3d 110,
114 (2d Cir. 2004), but a right may nevertheless be considered clearly established if
decisions by other courts, including in other circuits, plainly “foreshadow a particular
ruling on the issue,” Scott v. Fischer, 616 F.3d 100, 105 (2d Cir. 2010) (quoting Varrone
v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997)). Similarly, in the absence of case law from the
relevant circuit court of appeals, an officer may point to lower court precedent, even out
of circuit, to demonstrate that a reasonable officer would have believed his actions were
lawful. See Pearson, 555 U.S. at 244–45 (“Police officers are entitled to rely on existing
lower court cases without facing personal liability for their actions.”).
“The . . . dispositive inquiry” in the clearly established right analysis “is whether it
would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quoting Saucier, 533 U.S.
at 202). The officer’s subjective belief about his conduct is irrelevant. See, e.g.,
Crawford-El v. Britton, 523 U.S. 574, 588 (1998); Conn. ex rel. Blumenthal v. Crotty,
346 F.3d 84, 106 (2d Cir. 2003). An officer is shielded by qualified immunity even when
his or her actions are based on a reasonable mistake of law, fact, or both. See, e.g.,
Pearson, 555 U.S. at 231; see also al-Kidd, 563 U.S. at 743 (“Qualified immunity gives
government officials breathing room to make reasonable but mistaken judgments about
open legal questions.”). “But, if ‘it is obvious that no reasonably competent officer’
would have taken such action, that officer will not be immune.” Dancy, 843 F.3d at 106
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Qualified immunity thus
“provides ample protection to all but the plainly incompetent or those who knowingly
violate the law.” Malley, 475 U.S. at 341; see also Mullenix, 136 S. Ct. at 308.
Demar argues that it is clearly established law that officers must have
particularized reasonable suspicion of criminal activity to justify a traffic stop under the
Fourth Amendment. (See, e.g., Doc. 33 at 4–5.) She claims that Trooper Slusser’s
knowledge that a female was driving the vehicle, and that the registered owner was
married to a woman with a suspended license, did not “support his inference that
[Demar] was the female driver,” and that this inference was merely a hunch or a guess,
falling short of the reasonable suspicion standard. (Id. at 5.)
The parties do not dispute that the Fourth Amendment guarantees the right to be
free from even temporary seizures during a traffic stop, unless the officer has reasonable
suspicion that the vehicle’s occupants are engaging in criminal activity. See, e.g., Whren
v. United States, 517 U.S. 806, 809–10 (1996). Reasonable suspicion must be based on
“specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant” the stop. United States v. Elmore, 482 F.3d 172, 178 (2d Cir.
2007) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). Courts are required to consider the
facts under the “totality of the circumstances.” United States v. Arvizu, 534 U.S. 266,
273 (2002). “Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a
stop, the likelihood of criminal activity need not rise to the level required for probable
cause, and it falls considerably short of satisfying a preponderance of the evidence
standard.” Id. at 274 (citations omitted) (quoting Terry, 392 U.S. at 27); see also Dancy,
843 F.3d at 106 (“This [reasonable suspicion] standard is ‘not high’; rather, it requires
‘only facts sufficient to give rise to a reasonable suspicion that criminal activity “may be
afoot.”’” (quoting United States v. Bailey, 743 F.3d 322, 332 (2d Cir. 2014))). Finally,
“[r]easonable suspicion is an objective standard; hence, the subjective intentions or
motives of the officer making the stop are irrelevant.” United States v. Bayless, 201 F.3d
116, 133 (2d Cir. 2000); see also Arkansas v. Sullivan, 532 U.S. 769, 771–72 (2001).
Driving with a suspended license is a criminal offense under Vermont law,4 Vt.
Stat. Ann. tit. 23, § 674, and “reasonable suspicion that a motorist is unlicensed” is valid
grounds for a traffic stop under the Fourth Amendment, Delaware v. Prouse, 440 U.S.
648, 663 (1979). See also Arizona v. Johnson, 555 U.S. 323, 331 (2009); Pennsylvania v.
Mimms, 434 U.S. 106, 111 n.6 (1977); United States v. Stewart, 551 F.3d 187, 193 (2d
Cir. 2009); State v. Ryea, 153 Vt. 451, 571 A.2d 674, 675 (1990). Officers may
determine that a driver has a suspended license based on a Department of Motor Vehicles
(DMV) records search. See McGuire v. City of New York, 142 F. App’x 1, 3 (2d Cir.
2005) (holding that “a police officer, upon ascertaining from a DMV check that a
motorist’s license has been suspended,” has probable cause to arrest the motorist, without
confirming whether he or she was aware of the suspended license); State v. Lanoue,
156 Vt. 35, 587 A.2d 405, 406 (1991) (finding officer had reasonable suspicion to
conduct a traffic stop based on a DMV computer check indicating the driver’s license
was suspended, even though this information later proved to be incorrect).
The parties do not direct the Court to any Supreme Court or Second Circuit
precedent analyzing whether an officer has reasonable suspicion for a motor vehicle
traffic stop where the officer ascertains that the registered owner’s spouse has had his or
her license suspended and the officer suspects that the spouse is the driver of the vehicle
4 As noted at the May 4, 2017 hearing, driving with a suspended license is not a felony offense
under Vermont law as initially asserted in Slusser’s Motion. (Doc. 26 at 6.) Compare Vt. Stat. Ann. tit.
13, § 1 (defining felony as “any offense whose maximum term of imprisonment is more than two years,
for life[,] or which may be punished by death,” and stating that “[a]ny other offense is a misdemeanor”)
(emphasis added), with Vt. Stat. Ann. tit. 23, § 674 (stating that driving with a suspended license carries a
fine of not more than $5,000, up to two years of imprisonment, or both, and additional penalties for
multiple suspended license offenses committed within a certain timeframe).
being operated, nor can the Court find any. But Slusser points to numerous cases in
Vermont state courts and other jurisdictions where courts have determined that an officer
had reasonable suspicion for a traffic stop where the officer knew that the owner of the
vehicle had a suspended license and, absent evidence to the contrary, could infer that the
driver was the owner. See, e.g., State v. Edmonds, 2012 VT 81, ¶ 8, 192 Vt. 400, 404,
58 A.3d 961, 964 (finding that two traffic stops were supported by reasonable suspicion,
based on “the troopers’ knowledge that the owner of each car was under license
suspension, and the reasonable inference that the driver of a car could be its owner”).
Extending this inference, an Illinois court held that a police officer had reasonable
suspicion to stop a male driver, where a computer check of the vehicle’s license plate
indicated that the female owner’s husband was a regular driver of the vehicle, included a
description of him, and indicated that his license was suspended. See People v.
Blankenship, 819 N.E.2d 49, 53 (Ill. App. Ct. 2004) (citing Vill. of Lake in the Hills v.
Lloyd, 591 N.E.2d 524, 526 (Ill. App. Ct. 1992) (“Police knowledge that an owner of a
vehicle has a revoked driver’s license provides a reasonable suspicion to stop the owner’s
vehicle for the purpose of ascertaining the status of the license of the driver.”)).
Trooper Slusser argues that he had reasonable suspicion for the stop because he
knew that the vehicle was registered to Henry Demar, that Henry’s wife Michele Demar
had a suspended license, that the Demars resided at the same address, and that a woman
matching Michele Demar’s description was driving the car. (Doc. 26 at 3 (citing Doc.
26-1 at 2–3, ¶¶ 6, 10–12).) Demar counters that Slusser merely observed “‘a female
operator’” of the vehicle (Doc. 33-1 at 1, ¶ 6 (quoting Doc. 26-3 at 2)), and “made no
effort to confirm” that she in fact matched the description of Michele Demar (Doc. 33
at 6). Viewing the facts in the light most favorable to Demar, the Court must presume at
this stage that Trooper Slusser did not attempt to confirm that the driver matched the
description of Demar in the CAD search database, other than noting that the driver was
Nevertheless, the Court cannot conclude that “no reasonably competent officer” in
Trooper Slusser’s position would have conducted a traffic stop, because there were
numerous factors from which a reasonable officer could have concluded that he had
reasonable suspicion under the totality of the circumstances. Malley, 475 U.S. at 341; see
also Saucier, 533 U.S. at 208. There is no bright line rule under the Fourth Amendment
that an officer must affirmatively and methodically identify the driver before initiating a
traffic stop, see Coollick, 699 F.3d at 221, especially when he is aware of other “specific
and articulable facts,” and makes reasonable inferences from these facts, suggesting the
5 Trooper Slusser submitted a video recording of the incident, captured from the vantage point of
his police cruiser. (Doc. 26-4.) “[W]here [there] is a discrepancy between the parties’ versions of the
facts and a recording of the incident, a court may rely on an unaltered video or audio recording.” Burwell
v. Peyton, 131 F. Supp. 3d 268, 293 (D. Vt. 2015) (collecting cases), reconsideration granted in part on
other grounds, 2015 WL 6874250 (D. Vt. Nov. 9, 2015); see also Scott v. Harris, 550 U.S. 372, 380, 381
(2007) (holding that the lower court, on a motion for summary judgment, “should have viewed the facts
in the light depicted by the videotape,” instead of adopting a “version of the facts” that was “blatantly
contradicted by the record, so that no reasonable jury could believe it” on a motion for summary
judgment). The Court has viewed the video of the traffic stop but finds it unnecessary to rely on here,
because neither party’s version of the facts is “blatantly contradicted” by the video evidence “so that no
reasonable jury could believe it.” Scott, 550 U.S. at 380. Accordingly, because Demar is the non-moving
party, the Court accepts her version of the facts: Slusser did not approach Demar’s vehicle closely enough
to have “corroborated some of the alleged ‘description’ that he received [of her]” or even her
“approximate age.” (Doc. 33 at 5.)
driver’s identity, see Elmore, 482 F.3d at 178. In other words, at the time of the stop,
there was no precedent putting the question of a traffic stop’s constitutionality under
these or analogous factual circumstances beyond debate, al-Kidd, 563 U.S. at 741, and
case law from Vermont and other state courts at least suggest that Slusser’s inference that
Demar was driving was justified. At most, the circumstances of this stop may fall within
the Fourth Amendment’s “hazy borders,” but officers are protected by qualified
immunity in this uncertain, fact-specific realm. Saucier, 533 U.S. at 206; see also
Mullenix, 136 S. Ct. at 308; Coollick, 699 F.3d at 221. To the extent that Demar alleges
Slusser “purposefully” initiated the traffic stop “in furtherance of his desire to recruit
informants” (Doc. 1 at 5, ¶ 40), Slusser’s subjective intent has no bearing on the
reasonable suspicion analysis. See Bayless, 201 F.3d at 133; see also Dancy, 843 F.3d
at 111 (“Because subjective intentions are irrelevant to [the reasonable suspicion]
analysis . . . , we do not assess what was motivating this police officer when he decided to
stop [the suspect].” (citing Whren, 517 U.S. at 813)).
Demar’s reliance on Hope v. Pelzer, 536 U.S. 730 (2002) and United States v.
Lanier, 520 U.S. 259 (1997) is misplaced. (Doc. 33 at 3–4.) Demar argues that Trooper
Slusser should have known he did not have reasonable suspicion for the stop because “[a]
general constitutional rule already identified in the decisional law may apply with
obvious clarity to the specific conduct in question,” even if an analogous factual
circumstance has not been considered by the courts. (Id. at 3 (quoting Lanier, 520 U.S.
at 271) (emphasis added).) But a closer look at these cases demonstrates that general
rights may only put officers on notice of unlawful conduct in cases where the
constitutional or statutory violation is readily apparent. In Lanier, the Supreme Court
vacated the Sixth Circuit’s holding that a sitting judge who had sexually assaulted court
employees, job seekers, and litigants could not be liable under a federal criminal statute
that made it unlawful to deprive a person under color of state law rights protected by the
Constitution. The Sixth Circuit had reasoned that the public was not on notice that the
statute at issue “include[d] . . . sexual assault crimes within its coverage,” because the
Supreme Court had not explicitly addressed, under “fundamentally similar” facts, the
right to be free from sexual assault and harassment. Lanier, 520 U.S. at 263 (quoting
United States v. Lanier, 73 F.3d 1380, 1384, 1393 (6th Cir. 1996), vacated, 520 U.S. 259
(1997), 114 F.3d 84 (6th Cir. 1997)). Rejecting this reasoning, and particularly the
purported need for “fundamentally similar” facts, the Supreme Court explained that
officials simply need “reasonable warning that the conduct then at issue violated
constitutional rights.” Id. at 269. The Court offered the following analogy by way of
explanation: “There has never been . . . a section 1983 case accusing welfare officials of
selling foster children into slavery; it does not follow that if such a case arose, the
officials would be immune from damages [or criminal] liability.” Id. at 271 (alterations
in original) (quoting Lanier, 73 F.3d at 1410 (Daughtrey, J., dissenting)). Similarly, in
Hope, the Supreme Court held that a factually similar case was unnecessary to find that
officials had violated a prisoner’s clearly established rights under the Eighth Amendment,
where officials had handcuffed a shirtless prisoner to an outdoor hitching post, exposing
him to sunburn, taunted him, and deprived him of water and access to a bathroom for
seven hours. 536 U.S. at 741, 745–46.
These cases underscore that the courts cannot ignore commonsense applications of
constitutional or statutory law to blatantly illegal conduct, merely because the case
presents a novel factual scenario. But the motor vehicle stop at issue here was not
blatantly unlawful, and it is far from “obvious” whether Trooper Slusser lacked
reasonable suspicion under the Fourth Amendment. Lanier, 520 U.S. at 271.
Trooper Slusser did not rely merely on broad, generalized factors that could “describe a
very large category of presumably innocent travelers, who would be subject to virtually
random seizures were the [c]ourt to conclude” that these factors “could justify a seizure.”
United States v. Bristol, 819 F. Supp. 2d 135, 144 (E.D.N.Y. 2011) (quoting Reid v.
Georgia, 448 U.S. 438, 441 (1980)) (Police officers’ hunch that vehicle was unlicensed
livery cab operating in violation of city administrative code, coupled with officers’
observations that the passengers were riding in back seat of vehicle, while no one was
seated in the front passenger seat, that the model of vehicle was a type commonly used as
livery cab, and that the vehicle had license plate from neighboring state and no signage
indicating it was licensed livery cab, did not provide officers with reasonable suspicion of
criminal activity to justify an investigatory stop). Instead, Trooper Slusser made several
observations specific to the Subaru and Demar, and inferred rational facts from those
observations. In short, it is not clearly established whether an individual similarly
situated to Demar had the right to be free from a traffic stop under the precise
circumstances, and an objectively reasonable officer in Slusser’s position could have
believed there was reasonable suspicion for the stop. See Garcia, 779 F.3d at 92. Quite
simply, Trooper Slusser’s conduct was not “plainly incompetent” or a knowing violation
of the Fourth Amendment. Malley, 475 U.S. at 341. Accordingly, Trooper Slusser is
entitled to qualified immunity and thus his Motion for Summary Judgment (Doc. 26) is
GRANTED and Demar’s Complaint (Doc. 1) is DISMISSED.
Leave to Amend
“The court should freely give leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a)(2). It is well settled, however, that “leave to amend a complaint need not be
granted when amendment would be futile.” Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.
2003). Amendment is futile when the cause of action is substantively flawed and better
pleading will not cure the complaint’s defects. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000); see also Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990). Any
amendment by Demar would be futile here because her claims against Slusser are barred
by qualified immunity—an obstacle that better pleading cannot overcome.
For the reasons set forth above, Slusser’s Motion for Summary Judgment (Doc.
26) is GRANTED and Demar’s Complaint (Doc. 1) is DISMISSED with prejudice.
Dated at Burlington, in the District of Vermont, this 16th day of May, 2017.
/s/ John M. Conroy
John M. Conroy
United States Magistrate Judge
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