Windham County Sheriff's Department
~ Breaking News ~

By PATRICK J. CROWLEY, Reformer Staff
Brattleboro Reformer

Judge J. Garvan Murtha, of U.S. District Court in Brattleboro, denied a motion from the defense asking that the judge rule in its favor on the case without a jury.

Up until Thursday, the 11/2-year-old case had not seen any actual court appearance; its motions and rulings were done on paper.

Lawyers from both sides of the Pathfinders Motorcycle Club's lawsuit were able to address the judge in person for the first time.

The defense argues in the motion that deputies of the sheriff's department, as law enforcement, should have "qualified immunity" for their actions, which ultimately led to the cancellation of the Red Fox Turkey Run on Aug. 8, 2004, an on- and off-road motorcycle rally that deputies suspected of being a race.

On March 28, Murtha granted class-action status to members of the Pathfinders Motorcycle Club, which sponsored the rally in 2004 that was to run through parts of southern Vermont, including Jamaica.

Gathering at the Townshend Dam, roughly 300 riders were told by sheriff's deputies that their motorcycles were not legal under Vermont laws and that the rally appeared to be a race. The event was canceled by organizers and has not been held in Vermont since.

A report by the Vermont attorney general later said the actions of the sheriff's department and the town of Jamaica broke no laws, but improperly halted the rally.

"Although plaintiffs claim that the sheriff's department defendants violated a wide array of constitutional rights, plaintiffs had no clearly established right to 1) hold the event without permits required under the racing statute; 2) drive motorcycles that failed to comply with Vermont's motor vehicle laws on public ways; or 3) hold the event on private property," defense attorney Jeffrey S. Marlin wrote in the summary judgment motion.

Murtha, in denying the motion, thus overruled the argument of qualified immunity.

"If I were to grant your motion, the Second Circuit would reverse it in about two seconds," Murtha told the court.

After the ruling, Murtha said that the discovery process -- depositions and gathering of evidence -- can resume. After the two sides discussed deadlines and scheduling, Murtha said he expected the case to go to trial in six to eight months, if needed.

But at the beginning of Thursday's hearing, Murtha stressed the importance of trying to settle the case as soon as possible before, he said, attorney's fees start to get out of hand.

He recommended both the club and local officials attend "early neutral evaluation," or mediation, with another judge to make attempts to get closer to settlement. The two sides said they went to one mediation session early in the case.

Murtha also asked what the 325 plaintiffs, now certified for class-action status, would be seeking for damages. Connecticut attorney William Palmieri, representing the Pathfinders, said he was not prepared with a final number but said they would seek up to the limits of the policies that protect the defendants.

"Our demand, at this point, is $3 million," Palmieri told the judge.

Palmieri backed up the demands by saying they were not just seeking to be reimbursed for their $35 registration fees, but for additional costs they suffered for lodging, transportation and time taken off from work. Those costs, Palmieri said, could add up to at least $1,000.

Under previous cases, Palmieri said, the Pathfinders should be allowed to demand up to eight times the amount of punitive damages.

"I think $3 million, frankly, is excessive," Murtha said.

Marlin, arguing the defense's side, said deputies had reason to believe the motorcycle run was in fact a race. Part of the evidence for that, he said, is that one deputy saw a participant at the event carrying three trophies.

Marlin also said the deputies called Windham County State's Attorney Dan Davis, who told the deputies he believed the trophies implied that a race was taking place.

But Palmieri argued those trophies were being held by a man who won them at an unrelated event in the previous year. He also disputed Davis' phone call, which he said was "hazily recalled" by Davis at a later date.

"To get to qualified immunity would be to ignore so many facts," Palmieri said.

Both parties said now that they are able to continue with discovery, they will dive back into the work, first with written discovery, which will be due in 30 days.

Murtha also said he would expect a list of individuals represented in the class and what their damages are.

The only Pathfinders member at the hearing was William DiFrancesco, who has been representing the motorcycle club, which is based out of Connecticut.

He said the club does have ways of communicating about the developments on the case, in particular, the progress has been tracked on the New England Trail Riders Association newsletter.

The Pathfinders club is just one of many clubs affiliated with the trail riders association. DiFrancesco added that some members have been communication through online forums, but with the awareness of the defense reading the posts, that has been scaled back.

Patrick J. Crowley can be reached at pcrowley@reformer.com, or 802-254-2311, ext. 277.