15-1793-cv
Sakoc v. Carlson
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT
                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 24th day of August, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 PAUL A. ENGELMAYER,1
                                 Judge. 1
----------------------------------------------------------------------
FATA SAKOC,
                                 Plaintiff-Appellant,

                        v.                                                    No. 15-1793-cv

TIMOTHY CARLSON,
                                 Defendant-Appellee.
----------------------------------------------------------------------

    FOR PLAINTIFF-APPELLANT:                              BROOKS G. MCARTHUR (David J.
                                                          Williams, on the brief), Jarvis, McArthur
                                                          & Williams, LLC, Burlington, VT.

    FOR DEFENDANT-APPELLEE:                               KATE T. GALLAGHER, Assistant
                                                          Attorney General, State of Vermont,
                                                          Montpelier, VT.


1
  Judge Paul A. Engelmayer, of the United States District Court for the Southern District of New York,
sitting by designation.

                                                     1
        Appeal from a May 8, 2015 opinion and order of the United States District Court
for the District of Vermont (Reiss, C.J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is VACATED and the case is
REMANDED.

       Plaintiff-Appellant Fata Sakoc appeals from a May 8, 2015 opinion and order of
the United States District Court for the District of Vermont (Reiss, C.J.), granting
Defendant-Appellee Timothy Carlson’s motion for summary judgment on the basis of
qualified immunity.

       This case arises from a traffic stop of Sakoc on March 5, 2010, on Route 15 in
Essex, Vermont, by Carlson, a Vermont State Trooper, at approximately 11:15 p.m.
Sakoc was returning home from her shift at a nearby nursing home, and was operating
her car with one of its headlights not illuminated. Carlson stopped Sakoc’s car on the
basis of the defective light. Claiming he suspected that Sakoc’s ability to operate the
vehicle was impaired by alcohol, Carlson administered a series of field sobriety tests to
her. Concluding that Sakoc failed to pass those tests, Carlson then administered an
“Alco-Sensor” test, commonly known as a breath test. Before the breath test, Carlson
told Sakoc that if she passed that test, she would be free to go home. Although Sakoc
passed the Alco-Sensor test, Carlson then arrested her for violating the Vermont statute
prohibiting driving while impaired by a drug other than alcohol. Carlson transported
Sakoc to a police station and then to a local hospital where she passed a blood test for
alcohol and drugs. As a result, the citation for driving while impaired was dismissed.
Sakoc then filed this action against Carlson. Carlson was granted summary judgment by
the district court on the basis of qualified immunity.

       We review a district court's grant of summary judgment de novo. Mangino v. Inc.
Vill. of Patchogue, 808 F.3d 951, 955 (2d Cir. 2015). In doing so, we construe the
evidence in the light most favorable to the nonmoving party, and will affirm a district
court’s grant of summary judgment only when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. United States v. All
Funds Distributed To, or o/b/o Weiss, 345 F.3d 49, 53-54 (2d Cir. 2003).

       Sakoc asserts that Carlson arrested her without probable cause, thus violating her
Fourth Amendment right to be free from unreasonable seizures. This is also known as a
“false arrest” claim. The district court found that Carlson was protected by qualified
immunity. Qualified immunity shields federal and state officials from money damages
unless a plaintiff asserts facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was clearly established at the time of the

                                           2
challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, (2011) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “Even if the right at issue was clearly established
in certain respects, however, an officer is still entitled to qualified immunity if ‘officers of
reasonable competence could disagree’ on the legality of the action at issue in its
particular factual context.” Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)).

        “In analyzing § 1983 claims for unconstitutional false arrest, we have generally
looked to the law of the state in which the arrest occurred.” Jaegly v. Couch, 439 F.3d
149, 151 (2d Cir. 2006) (internal quotation marks omitted). Under Vermont law,
“probable cause for arrest exists where the facts and circumstances within the arresting
officer's knowledge are sufficient in themselves to warrant a person of reasonable caution
to believe that a crime is being committed.” State v. Guzman, 184 Vt. 518, 524 (2008)
(internal quotation marks omitted). To be entitled to qualified immunity, “[t]he 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.” Long v. L'Esperance, 166 Vt. 566, 571 (1997). “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.” 2 Id.

       Here, the offense that Carlson suspected Sakoc of committing was that of
operating a vehicle on a highway while “under the influence of any [drug other than
alcohol] or under the combined influence of alcohol and any other drug to a degree which
renders the person incapable of driving safely.” 23 V.S.A. § 1201(a)(3).3 No Vermont
state court decision had specifically addressed the question of what constitutes probable
cause to arrest a suspect for violating this provision.4

2
  Although Vermont courts have not used these words, we refer to this standard as “arguable probable cause.” See
Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) (internal quotation marks omitted).
3
  In 2014, the Vermont Legislature amended the statute to delete the words “to a degree which renders the person
incapable of driving safely,” and to provide that “under the influence of a drug” means “that a person’s ability to
operate a motor vehicle safely is diminished or impaired to the slightest degree.” 23 V.S.A. § 1201(h). Thus, at the
time of the stop, it was “more difficult” to prove driving under the influence of drugs than to prove driving under the
influence of alcohol. See State v. Frigault, 151 Vt. 537, 538 (1989).
4
  Sakoc reads State v. Rifkin, 140 Vt. 472, 476 (1981), to require a police officer to have observed a driver operating
unsafely before making an arrest. She bases this understanding in part on statements made at the scene of the stop
by two of the officers present that suggested that the Vermont State Police had a policy of only making arrests for
suspected violations of 23 V.S.A. § 1201(a)(3) when unsafe operation of a vehicle had been observed, and she
points to evidence in the record suggesting that Carlson changed his account of his reason for initiating the traffic
stop after he learned of this policy. Whether or not there was such a policy at the time, Sakoc has identified no
Vermont statute or decision of the Vermont Supreme Court that would require it. Nor is the reason for the stop
otherwise relevant to the probable cause analysis. Under Vermont law, reasonable suspicion of “even a minor traffic
infraction can be the basis of a traffic stop.” State v. Tuma, 194 Vt. 345, 347 (2013), and Sakoc does not dispute that

                                                          3
       The parties disagree about many of the details of what transpired after the traffic
stop that led to Sakoc’s arrest, including (1) whether her speech was slurred, (2) whether
she demonstrated confusion in her interactions with Carlson both before and after exiting
her vehicle, and (3) whether there was an odor of alcohol emanating from her vehicle.
They also disagree as to how to evaluate Sakoc’s performance on the field sobriety tests
that she underwent at Carlson’s request and that are captured on a video that was
presented in evidence during the summary judgment proceedings.5

        Because of the significant disputes between the parties as to the facts leading up to
the arrest, the district court relied only on the following undisputed facts in granting
summary judgment: (1) Sakoc conceded “that her performance on [the field sobriety
tests] was not perfect,” (2) the video “confirms that her performance was not flawless,”
(3) “it is evident from the video that she failed to follow some of [Carlson’s] instructions
and exhibited some degree of confusion,” and (4) Carlson “was in receipt of a second
opinion from another law enforcement officer” on the scene (local police officer
Dunning) that Sakoc had failed the field sobriety tests. Sakoc v. Carlson, No. 5:11–cv–
290, 2015 WL 2172125, at *12-13.

         On appeal, Sakoc concedes again that her performance on the field sobriety tests
was not perfect, and that she could rightly have been assigned two defects in her
performance, also known as “clues.” She argues, however, that at the time of the arrest
no reasonably competent police officer would believe that two clues garnered from field
sobriety tests, when considered along with the other evidence she presented, would
establish probable cause for arrest under 23 V.S.A. § 1201(a)(3). We agree.

       The district court was correct in stating that, at the time of Sakoc’s arrest, the
standard for probable cause for arrest for a violation of 23 V.S.A. § 1201(a)(3) was
“undeveloped” in Vermont. Sakoc v. Carlson, No. 5:11–cv–290, 2015 WL 2172125, at
*12-13. We also agree with the district court’s conclusion that reasonably competent
officers could have disagreed as to the propriety of relying on performance on field
sobriety tests in finding probable cause for arrest for a violation of that statute.6

the initial stop of her car was justified because of its broken headlight.
5
  Only a part of the video had audio.
6
  Sakoc disagrees, pointing out that there is no Vermont decision holding specifically that performance on field
sobriety tests is relevant to a conclusion that a person is incapable of driving safely due to the influence of a drug
other than alcohol. However, there are also no decisions holding that field sobriety tests may not be considered.
Moreover, field sobriety tests have been recognized by Vermont courts as relevant in the context of determining
alcohol impairment. See State v. Therrien, 191 Vt. 24, 29-30 (2011) (“[T]he basis for probable cause to arrest is
detailed in the officer's affidavit and . . . includes . . . the results of the field sobriety tests, which strongly indicated
that defendant was impaired.”); State v. McGuigan, 184 Vt. 441, 452-53 (2008) (“Considering defendant's poor
performance in these exercises, there is no question that the trooper had probable cause to arrest after the

                                                              4
        Having reviewed the video, the transcript of the audio portion in evidence, and
having considered all the evidence in the light most favorable to Sakoc, however, we
conclude that—even with the law undeveloped as it was and even accepting that field
sobriety tests may be relevant to impairment under drugs other than alcohol—no
reasonable officer could have found arguable probable cause to arrest Sakoc for a
violation of 23 V.S.A. § 1201(a)(3) solely based the video and accompanying audio of
the field sobriety tests. The two conceded “clues” were minimal, Sakoc’s performance
appeared to be otherwise satisfactory, and all remaining evidence tending to support
probable cause was disputed and therefore must be treated on defendant’s motion for
summary judgment in the light most favorable to Sakoc. Furthermore, Sakoc proffered
evidence that this was Carlson’s first DUI arrest and he was motivated to arrest her so as
to satisfy the completion of his field training. While a police officer’s motivation does
not invalidate objectively justifiable behavior, in this case, suspect motivations can affect
a jury’s appraisal of Carlson’s testimony in support of probable cause. As the district
court correctly concluded, Carlson’s other claimed bases for the arrest, including
improper operation of the vehicle before the stop, an odor of alcohol, poor performance
of the portions of the field sobriety tests that cannot be observed on the video or heard in
the audio, slurred speech, and “bombing” the field sobriety tests, are all disputed material
facts. Crediting Sakoc’s version of the disputed facts, and evaluating the video and
transcript in the light most favorable to her, the jury could conclude that Carlson
unreasonably exaggerated the minimal flaws in Sakoc’s performance on the field sobriety
tests.7 A jury evaluating the credibility of this and all other testimony could determine
that there was no probable cause for plaintiff’s arrest. Consequently, considering all of
that evidence in Sakoc’s favor—as we must at the summary judgment stage—compels us
to VACATE the judgment of the district court and REMAND for further proceedings.


                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk of Court




administration of the field-sobriety tests.”). Sakoc may be correct that the standard for alcohol impairment under the
statute was different at the time than the standard for impairment from other drugs, but reasonably competent
officers could disagree over whether performance on field sobriety tests was relevant to assessing a person’s degree
of impairment from another drug.
7
  Indeed, the district court itself found that “evidence that Trooper Carlson allegedly fabricated evidence of erratic
operation affects the credibility of his remaining observations during the traffic stop and renders that credibility
determination a question for the jury.” Sakoc, 2015 WL 2172125, at *9.

                                                          5
