Sahar v. Burlington

7ermont Superior Court
Filed 03/04/26
Chittenden Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 25-CV-3042
175 Main Street
Burlington VT 05402
802-863-3467
.vermontjudiciary.org

KHALID ULLAH SAHAR,
Plaintiff

V. DECISION ON MOTIONS

CITY OF BURLINGTON, CITY OF SOUTH
BURLINGTON, TOWN OF COLCHESTER,
CHITTENDEN UNIT FOR SPECIAL
INVESTIGATIONS, INC.,
Defendants

RULING ON DEFENDANTS' MOTIONS TO DISMISS

Plaintiff Khalid Ullah Sahar, a refugee from Afghanistan, brings this action against the
Cities of Burlington and South Burlington, the Town of Colchester, and the Chittenden Unit for
Special Investigations (""CUSTI') in connection with a July 2022 encounter with law enforcement.
He alleges that police detectives employed by Defendants violated Article 10 of the Vermont
Constitution by subjecting him to a custodial interrogation, and by doing so without an
interpreter. Defendants Burlington, South Burlington, and CUSI each separately seek dismissal
under Rule 12(b)(6) of the Vermont Rules of Civil Procedure for the same reasons. For the
reasons discussed below, the motions to dismiss are GRANTED.

Facts

The following facts are alleged in the Complaint. The Court makes no finding as to their
accuracy at this stage of the proceedings. Instead, the Court "must assume that the facts pleaded
in the complaint are true and make all reasonable inferences in the plaintiff's favor." Montague
v. Hundred Acre Homestead, LLC, 2019 VT 16, J 10, 209 Vt. 514.

Plaintiff is an Afghan refugee paroled into the United States in 2021 due to the collapse
of the Afghan government to the Taliban and was later granted asylum status. In 2022, he settled
in Burlington with the help of the Vermont Afghan Alliance and started working in a cell phone
repair shop. At this time, Plaintiff did not speak or understand English well.

Victor Bitca and Daniel Boyar are law enforcement officers with the Colchester and
South Burlington Police Departments, respectively. At all times relevant to this case, they were
assigned to CUSI, a non-profit corporation that operates as a law enforcement agency
investigating sex crimes and staffed by officers assigned to it from other agencies in Chittenden
County. The Burlington Police Department supervises and manages the day-to-day operations of
CUSI and is responsible for the actions of officers assigned to CUSI.

In July 2022, a woman reported to Burlington Police, through her Howard Center
caseworker, that she had been sexually assaulted by Plaintiff in the cell phone store where he
worked. The Burlington Police started an investigation into the report.

On July 29, 2022, Detectives Boyar and Bitca, acting for CUSI, went to the cell phone
store to question Plaintiff. They prevented anyone else from entering the store while they
questioned him. They positioned themselves to block Plaintiff into a corner, such that he would
have been unable to leave without pushing through the detectives. They did not inform Plaintiff
of his criminal due process rights.

During this encounter, Plaintiff stated several times that he did not understand the
detectives’ questions. Detective Bitca asked if Plaintiff wanted an interpreter, but Detective
Boyar continued asking questions without waiting for a response. They continued to question
Plaintiff even though it was clear that he did not understand everything they said. Plaintiff was
afraid of the detectives and believed that he was not free to leave and had to answer their
questions.

The detectives took several of Plaintiff’s statements out of context as admissions and
relied on them to charge him with sexual assault. Plaintiff alleges that, in context, it is clear that
his statements were not admissions, but rather “linguistic artifacts caused by [his] difficulty
speaking and understanding English.” Compl. ¶ 26. Plaintiff is in fact innocent of the crimes he
was charged with. The complaining witness later recanted during her deposition in the criminal
case, and the State dismissed the criminal charges with prejudice.

Plaintiff brings two claims, titled “Custodial Interrogation” and “Failure to Provide
Interpreter.” He alleges that the detectives “violated [his] rights under Article 10 by
interrogating him in circumstances in which a reasonable person would not feel free to leave”
and “by interrogating him without an interpreter, preventing [him] from understanding his rights,
and preventing [him] from understanding the questions they asked.” Compl. ¶¶ 30, 33. He
suggests that his statements to the detectives were “compelled.” Id. ¶¶ 29, 32. He seeks damages
for the alleged violation of his constitutional rights. Id. ¶¶ 31, 34.

Discussion

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court considers whether
“it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff
to relief.” Davis v. Am. Legion, Dep’t of Vt., 2014 VT 134, ¶ 12, 198 Vt. 204 (quoting Alger v.
Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309). The Court “must assume that the
facts pleaded in the complaint are true and make all reasonable inferences in the plaintiff’s
favor.” Montague, 2019 VT 16, ¶ 10. The burden on plaintiffs under Vermont law is
“exceedingly low” at the pleading stage. Prive v. Vt. Asbestos Group, 2010 VT 2, ¶ 14, 187 Vt.
280. Complaints are intended to give enough notice to the defendant to allow a response, but
need not lay out every detail of the facts supporting the claim. See Colby v. Umbrella, Inc., 2008

2
VT 20, ¶ 13, 184 Vt. 1 (“The complaint is a bare bones statement that merely provides the
defendant with notice of the claims against it.”). The goal is to “strike a fair balance, at the early
stages of litigation, between encouraging valid, but as yet underdeveloped causes of action and
discouraging baseless or legally insufficient ones.” Id. As such, motions to dismiss for failure to
state a claim are “disfavored.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575. “Nonetheless,
where the plaintiff does not allege a legally cognizable claim, dismissal is appropriate.”
Montague, 2019 VT 16, ¶ 11.

Defendants Burlington, South Burlington, and CUSI all seek dismissal. They contend
that Plaintiff cannot recover damages for alleged Article 10 violations and that the alleged facts
do not amount to a custodial interrogation. Additionally, CUSI argues that violations of the
privilege against self-incrimination can occur only during criminal prosecutions, and the
municipal Defendants argue that the claims are barred by qualified immunity.

Article 10 provides “[t]hat in all prosecutions for criminal offenses,” a person cannot “be
compelled to give evidence against oneself.” Vt. Const. ch. I, art. X. This right against self-
incrimination is similarly “guaranteed in the Fifth Amendment to the United States Constitution,
which prohibits compelling a criminal defendant to ‘be a witness against himself.’” State v.
Peterson, 2007 VT 24, ¶ 17, 181 Vt. 436 (quoting U.S. Const. amend. V). “[T]he Article 10
privilege against self-incrimination and that contained in the Fifth Amendment are synonymous.”
State v. Rheaume, 2004 VT 35, ¶ 18, 176 Vt. 413.

“To safeguard this right, law enforcement officers must warn a person in custody, prior to
interrogation, ‘that he has a right to remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the presence of an attorney, either retained or
appointed.’” State v. Fleurie, 2008 VT 118, ¶ 11, 185 Vt. 29 (quoting Miranda v. Arizona, 384
U.S. 436, 444 (1966)). “Miranda warnings serve to ensure that the person in custody has
sufficient knowledge of his constitutional rights concerning the interrogation and that any waiver
of such rights is knowing, intelligent, and voluntary.” State v. Brooks, 2013 VT 27, ¶ 10, 193 Vt.
461. Defendants contend that Plaintiff cannot recover damages for a Miranda violation alone,
and federal law is in accord. “Miranda warnings are a procedural safeguard rather than a right
explicitly stated in the Fifth Amendment. The remedy for a Miranda violation is the exclusion
from evidence of any ensuing self-incriminating statements[,] . . . not a § 1983 action.”
Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995). Thus, a “Miranda . . . violation,
standing alone, would not form a basis for liability under §1983.” Id. at 1511. In 2022, the U.S.
Supreme Court squarely held that a Miranda violation alone cannot form the basis for a § 1983
action. Vega v. Tekoh, 597 U.S. 134, 152 (2022).

Plaintiff’s complaint, however, does not rest on a Miranda violation alone. Rather, he
suggests that, notwithstanding the lack of Miranda warnings, his admissions were “compelled”
in violation of Article 10. Compl. ¶¶ 29, 32. Our Supreme Court has not yet decided whether
Article 10 provides a private cause of action. This Court notes that while the existence of a
private cause of action for money damages based on unconstitutional searches and seizures is
well-established both federally and in Vermont, see, e.g., Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971); Zullo v. State, 2019 VT 1, ¶ 47, 209 Vt.
298, that is not the case for coerced confessions, even at the federal level:

3
[T]here has been relatively little litigation under § 1983 to enforce this provision
of the Fifth Amendment. Usually questions concerning the voluntariness of a
confession are raised in the context of a criminal proceeding.

Part of the reason for the small number of civil cases may relate to the difficulty
in proving damages. If there has in fact been a violation of the Fifth Amendment,
presumably the confession will be inadmissible. If the confession is not used in
the criminal proceedings, then it is difficult for the § 1983 plaintiff to show actual
harm.

I. Bodensteiner and R. Levinson, 1 State and Local Government Civil Rights Liability § 1:13
(May 2024 update) (footnotes omitted). The Second Circuit has held that “a § 1983 action may
exist under the Fifth Amendment self-incrimination clause if coercion was applied to obtain a
waiver of the plaintiffs’ rights against self-incrimination and/or to obtain inculpatory statements,
and the statements thereby obtained were used against the plaintiffs in a criminal proceeding.”
Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998). Even if a statement was
coerced, however, “there can be no Fifth Amendment violation until that statement is introduced
against the defendant in a criminal proceeding” which, “[i]n some situations,” may include “use
of these statements in pre-trial settings.” Id. at 346-47; see also Chavez v. Martinez, 538 U.S.
760, 767 (2003) (violation of self-incrimination clause does not occur until statements are used
against declarant in criminal case); 1 Nahmod, Civil Rights & Civil Liberties Litigation: The Law
of Section 1983 § 3:24 (Sept. 2025 update) (“Even clearer examples of Fifth Amendment
violations for § 1983 purposes are those cases in which a confession is in fact improperly
obtained through coercion and then used at trial.”).

Of course, this is not a § 1983 action, but a claim brought directly under Article 10. Our
Supreme Court has “established a two-step inquiry to determine whether monetary damages are
available directly under a particular constitutional provision”: (1) “whether the constitutional
provision at issue is self-executing in the sense that it is specific enough to support an action
against the state or state officials absent implementing legislation”; and (2) “whether monetary
damages are available as a remedy for a violation because of the absence of any viable
alternative remedy.” Zullo v. State, 2019 VT 1, ¶ 33, 209 Vt. 298 (citation and quotation
omitted); see also id. ¶ 47 (concluding, as a matter of first impression, that a direct private right
of action for money damages is available for violations of Article 11’s search and seizure
provision).

This Court agrees with Judge Sessions’s non-binding yet persuasive conclusion that
“Article 10 is self-executing; it sets forth specific rights, has no legislative directive, and the
ability to seek redress for infringements of Article 10 ‘comports with the general constitutional
scheme.’” Billado v. Parry, 937 F. Supp. 337, 345 (D. Vt. 1996) (quoting Shields v. Gerhart,
163 Vt. 219, 227, 658 A.2d 924, 930 (1995)). The Court cannot conclude, however, that
monetary damages are available for Plaintiff’s alleged Article 10 violation. Here, Plaintiff had a
“viable alternative remedy” in that he could have sought to suppress the allegedly compelled
admissions in his criminal case or otherwise challenged the finding of probable cause. Zullo,
2019 VT 1, ¶ 33. Indeed, Plaintiff concedes as much: “It is possible that Mr. Sahar could have

4
sought suppression of the statements he made to the Officers in the course of the criminal case
against him.” Pl.’s Opp’n at 3, dated Nov. 20, 2025. While he argues that suppression was “not
a meaningful alternative remedy in this particular case” because he was “actually innocent” and
because the State “dismissed the case with prejudice of its own accord after the complaining
witness recanted during her deposition,” id., that does not negate the fact that Plaintiff could have
sought to suppress the statement he made to the police officers while the criminal proceeding
was pending. Thus, there was not an “absence of any viable alternative remedy.” Zullo, 2019 VT
1, ¶ 33 (emphasis added). 1

Given the Court’s conclusion that Plaintiff has no private right of action for damages
under Article 10 on the present set of allegations, the Court need not address Defendants’
alternative arguments for dismissal.

Order

For the foregoing reasons, the Court GRANTS Defendants’ motions to dismiss (Mots. #
2, 7, 8).

Consistent with the Court’s ruling, Plaintiff’s claims against the Town of Colchester will
also be dismissed unless either party files an objection within 14 days of the date of this Order
explaining why the claims should not be dismissed.

Electronically signed on March 2, 2026 at 2:54 PM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

1
Accordingly, this case is distinguished from Zullo, 2019 VT 1, ¶ 38, where the Court held
that “the standard remedy” provided by “the exclusionary rule” afforded no relief to the plaintiff,
“who was not charged with a crime.” See also id. ¶ 55 (holding that a plaintiff in an action for
damages “based on a law enforcement officer’s alleged violation of [a] constitutional provision
must show that . . . there is no meaningful alternative remedy in the context of that particular
case”).
5