This article is written by Jennifer Hersey Cleveland of The Caledonian Record, which first published it on July 5.
NEWPORT CITY — Criminal charges against a Newport man, who was tackled in his own home by police and shot twice with a stun gun, have been dismissed because the intrusion into the man’s home was without warrant or cause.
Judge Howard VanBenthuysen wrote in his order that both the U.S. and Vermont constitutions protect citizens from the intrusion of privacy that occurred in this case.
On Nov. 9, 2012, Newport City Police officer Aaron Lefebvre and Chief Seth DiSanto responded to a report that a man was swinging a bat next to Lake Road. When they arrived, no one was outside, but apparently familiar with the address, Lefebvre hollered to “Jason” to come outside.
Defendant Jason Naylor, 40, eventually acquiesced to Lefebvre’s commands and spoke with him about the bat-swinging while seated on his porch. During the conversation, Lefebvre determined that Naylor had been drinking.
When Lefebvre asked Naylor to submit to a breath test, Naylor got up and went inside.
Lefebvre responded by tackling the man in his home, and while wrestling with Lefebvre and DiSanto, Naylor was struck twice with a Taser weapon. He was charged with domestic assault (later dismissed), disorderly conduct, and resisting arrest.
He already pleaded guilty to one count of disorderly conduct, but after public defender Jill Jourdan filed the motion to suppress and dismiss, State’s Attorney Alan Franklin added another count of disorderly conduct.
The judge’s order dismisses all remaining charges.
Jourdan argued that the state couldn’t prove its case because Lefebvre had no right to enter Naylor’s home or arrest him and that the Fourth Amendment of the U.S. Constitution and Article 11 of the Vermont Constitution protect Naylor from warrantless arrest.
The state countered, arguing that Lefebvre had the right to take Naylor into protective custody because of a civil statute allowing police to do just that when someone is incapacitated because of his alcohol use.
Franklin also argued that Lefebvre’s actions were lawful because Naylor’s resistance to being tackled and subjected to electric shock amounted to disorderly conduct committed in the presence of an officer.
Whichever justification the state picks, VanBenthuysen found that “the police actions were not justified.”
A CopVu video shows Naylor walking from his house of his own volition and speaking with Lefebvre, which contradict the state’s assertion that Naylor was incapacitated.
Naylor shows no signs that he is a danger to the safety of others. “In fact, he seems relatively calm and avoids any physical altercation with police until Officer Lefebvre tackles him — inside his own home,” VanBenthuysen wrote. “The State’s suggestion that Defendant’s swinging of a baseball bat outside earlier in the day amounts to presenting a threat to anyone is unpersuasive, in part because the complaint did not suggest that whoever was swinging the bat was swinging it either at or even in the presence of anyone else.”
Even assuming the Lefebvre’s actions were well-intentioned, that – as the state asserts – Naylor’s behavior was “fighting and violent,” the state’s argument fails because the video clearly shows that Naylor was completely nonviolent until attacked.
“The police cannot initiate a physical altercation with an individual walking back into his own home and then attempt to justify the arrest by claiming the resulting resistance amounted to disorderly conduct,” VanBenthuysen wrote.
A 1982 Supreme Court decision in State v. Peters, in which the court held that citizens do not have the right to resist even an unlawful arrest, further complicates the situation.
VanBenthuysen wrote that he understands the inherent challenges officers face in making split-second decisions based on often incomplete information. Perhaps Lefebvre’s forceful actions were an attempt to prevent a reoccurence of the bat swinging or maybe his thought was to detain Naylor under the civil incapacitation statute, the judge wrote.
“Perhaps the officer was proceeding under the belief that no matter which theory he later used to justify detaining Mr. Naylor, State v. Peters provided an absolute rule that Mr. Naylor could not resist,” VanBenthuysen continued.
But the judge called the Peters decision “a tad long in the tooth” and not so general a rule after all.
The main factor that distinguishes the two cases is that Naylor was arrested in his own house without a warrant, whereas Peters was arrested in a parking lot pursuant to a warrant, however flawed its basis may have been.
“Because it was improper for the police to enter Defendant’s home to arrest him, Defendant’s resistance is not automatically illegal,” VanBenthuysen wrote.
“There are times when, however frustrating it may be, the proper action is no action, and this case presents just such a scenario,” he concluded.