No Liberty Interest in Routine Access to Police Facilities: Commentary on Rivard v. Town of Brattleboro (Vt. 2025, Three‑Justice Entry Order)

I. Introduction

This commentary examines the Vermont Supreme Court’s three‑justice entry order in Jeffrey Rivard v. Town of Brattleboro et al., Case No. 25‑AP‑282 (November Term, 2025). Although, as the Court explicitly notes, “Decisions of a three-justice panel are not to be considered as precedent before any tribunal”, the order provides a clear and structured application of procedural due‑process doctrine to municipal trespass orders and access to public buildings, particularly a police department.

The plaintiff, Jeffrey Rivard, proceeding pro se, challenged two trespass orders issued by Brattleboro police officers:

• A no‑trespass order barring him from the premises of a private school that his child attended.
• A no‑trespass order prohibiting him from entering the property of the Brattleboro Police Department.

Rivard alleged that the Town of Brattleboro and its officials violated his rights under the Fourteenth Amendment Due Process Clause by failing to respond to his attempts to “appeal” those trespass orders, and he raised several other constitutional and statutory arguments on appeal.

The Superior Court (Windham Unit, Civil Division, Judge Rachel M. Malone) granted defendants’ motion to dismiss, with prejudice. Rivard appealed. The Vermont Supreme Court affirmed, holding in substance that:

• The Town’s internal appeal language on a municipal trespass form did not create an appeal right for a trespass order issued at the request of a private school.
• Rivard failed to identify any protected liberty interest under the Fourteenth Amendment that was infringed by barring him from the police department property.
• Numerous additional arguments were either unpreserved (not raised below) or inadequately briefed, and thus not addressed on the merits.

The order situates Vermont within the mainstream of federal authority holding that there is no constitutional liberty or property interest in unrestricted access to public buildings, including police department facilities, while also reinforcing Vermont’s strict doctrine on issue preservation and sufficiency of briefing on appeal.

II. Summary of the Opinion

A. Procedural Posture

Rivard filed a civil complaint against the Town of Brattleboro and various state and municipal employees. After an initial screening, the trial court dismissed claims against individual defendants for failure to state a claim, leaving only claims against:

• The Town of Brattleboro, and
• The town manager.

Those remaining claims focused on alleged due‑process violations because the town manager allegedly did not respond when Rivard called the number listed on the trespass forms to “appeal” the orders. The trial court dismissed the complaint with prejudice. Rivard appealed.

B. The Private School Trespass Order

The trial court relied on a “Trespass After Warning Affidavit” that Rivard himself filed with his complaint. That document, as interpreted by the court, indicated that:

• The appeal process described on the form applied only to trespass orders involving public property.
• There was no municipal appeal process for trespass notices issued for private property.

Because the school was private property, and the trespass notice was issued at the request of school officials, the court concluded that:

• The Town had no obligation to review or respond to an appeal regarding that private‑property trespass notice, and
• Rivard therefore failed to state a claim that his due‑process rights were violated by the Town’s inaction.

The Vermont Supreme Court affirmed this aspect of the dismissal.

C. The Police Department Trespass Order

For the trespass order barring Rivard from the Brattleboro Police Department property, the trial court framed the issue under procedural due‑process doctrine, relying on Wool v. Office of Professional Regulation, 2020 VT 44, ¶ 20, 212 Vt. 305. Under Wool, a procedural due‑process claim requires:

1. A showing that the plaintiff has a liberty or property interest that has been interfered with by the State; and
2. A showing that the procedures surrounding that interference were not constitutionally sufficient.

The trial court held that Rivard had not identified any qualifying liberty interest:

• His claim that he should have been lodged at the local police station rather than at a correctional facility was rejected; the court found no basis for a “right” to be detained in one facility rather than another.
• The trespass order did not block his access to emergency services, to information, or from lodging complaints or making reports to law enforcement.
• The court found no authority supporting a generalized liberty interest in accessing a police department property.

The Supreme Court agreed. It emphasized that:

• Wool explains how to analyze procedural due‑process claims, but does not stand for the proposition, as Rivard argued, that Vermont recognizes a liberty interest “when governmental action restricts access to state facilities or services.”
• Rivard failed at the first step of the due‑process inquiry: he did not demonstrate any liberty interest cognizable under the Fourteenth Amendment that was implicated by the trespass order.

D. Other Arguments Rejected or Not Reached

The Court addressed or disposed of several additional arguments as follows:

• “Fundamental rights” argument – Rivard appeared to suggest that because he raised issues involving fundamental rights, his claim could not be dismissed at the pleading stage. The Court rejected this as unsupported by law: even alleged fundamental‑rights violations can be dismissed if the complaint does not state a viable legal claim.
• Leave to amend again – Rivard argued on appeal that he should have been allowed to amend his complaint a second time. The Court held that he did not request such relief in the trial court, and the court had no obligation to grant leave to amend sua sponte.
• Catron and public‑forum arguments – Rivard cited Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011), which recognized a liberty interest in access to city parks and other lands open to the public generally. The Court held that Catron does not apply: the trespass order here involved a police department, not open‑park land, and in any event, arguments that the police lobby is a “public forum” were not raised below and thus were unpreserved.
• Declaratory relief – To the extent Rivard sought declaratory relief from the Supreme Court or advisory opinions on dicta, the Court denied any such request. It noted that Rivard did not show he had actually sought declaratory relief in the trial court and that he cited a non‑existent statute, “12 V.S.A. § 839.”
• Equal Protection – The Court held that Rivard had not shown he raised any equal‑protection claim below, so it was not preserved for appellate review.
• Article 11 (Vermont Constitution) – The Court declined to address Rivard’s Article 11 argument because it was so unclear that the Court “cannot discern” it, citing the requirements of V.R.A.P. 28(a) and Johnson v. Johnson, 158 Vt. 160, 164 n.* (1992).
• Parental‑rights and school trespass arguments – Any such arguments were raised for the first time in Rivard’s reply brief. Under Gallipo v. City of Rutland, 2005 VT 83, ¶ 52, 178 Vt. 244, issues raised first in a reply brief are not adequately preserved and thus not considered.

Concluding that no viable claim survived the motion to dismiss and that all discernible appellate arguments lacked merit, the Court affirmed the dismissal with prejudice.

III. Precedents and Authorities Cited

A. Chayer v. Ethan Allen, Inc., 2008 VT 45, 183 Vt. 439

The Court reaffirmed the Vermont standard for reviewing dismissals under V.R.C.P. 12(b)(6):

“We will affirm the trial court's grant of a motion to dismiss only when there are no facts or circumstances alleged in the complaint that would entitle the nonmoving party to relief.”

The Court also reiterated that, at this stage, it must:

• Assume the truth of the plaintiff’s factual allegations, and
• Draw all reasonable inferences in the plaintiff’s favor.

Even under this plaintiff‑friendly standard, Rivard’s allegations could not establish a cognizable legal claim.

B. Wool v. Office of Professional Regulation, 2020 VT 44, 212 Vt. 305

Wool supplies the controlling framework for procedural due‑process claims in Vermont:

“The Fourteenth Amendment to the U.S. Constitution protects persons against state deprivations of life, liberty, or property, without due process of law. Courts examine procedural due process questions in two steps: the first asks whether there exists a liberty . . . interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient. A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word liberty, or it may arise from an expectation or interest created by state laws or policies.”

The Supreme Court clarified that Wool does not say that any governmental restriction on access to facilities or services automatically implicates a liberty interest. Rather, Wool requires a threshold showing that a recognized liberty or property interest is at stake.

In Rivard, the Court concluded that there is no recognized liberty interest in:

• Being held at a local police station instead of a correctional facility; or
• Maintaining unrestricted physical access to a police department building.

C. Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. 2011)

The plaintiff cited Catron for the proposition that there is a constitutionally protected liberty interest in accessing city lands or facilities. The Eleventh Circuit in Catron recognized:

“a constitutionally protected liberty interest to be in parks or on other city lands of their choosing that are open to the public generally.”

The Vermont Supreme Court distinguished and effectively neutralized the reliance on Catron in two ways:

• Different type of property: The trespass order at issue here involved a police department, not a park or open public land “of their choosing” that is held out to the general public in the same way as parks.
• Preservation problem: The Court noted that Rivard did not show he had argued below that the police‑department lobby functioned as a “public forum,” so any such theory was unpreserved under Vermont’s appellate rules.

D. Federal Appellate Cases on Access to Public Buildings

The Court aligned itself with a series of federal appellate decisions that reject claims of a constitutional right to unrestricted use of public buildings:

• Royer ex rel. Estate of Royer v. City of Oak Grove, 374 F.3d 685, 689 (8th Cir. 2004) – Held that individuals do not have a “property interest in having unlimited access to a public building.”
• Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir. 2008) – Found that a one‑year ban from a community center did not deprive the plaintiff of a protected liberty interest.
• Hannemann v. Southern Door County School District, 673 F.3d 746, 757–58 (7th Cir. 2012) – Concluded that a ban from public school property did not deprive the plaintiff of a protected liberty interest.
• Vincent v. City of Sulphur, 805 F.3d 543, 548–51 (5th Cir. 2015) – Reasoned that a temporary ban from city property, including city hall, did not violate any clearly established due‑process rights.

By endorsing these authorities, the Vermont Supreme Court signaled that:

• Restrictions on access to municipal buildings—even those nominally “open to the public”—do not, without more, implicate Fourteenth Amendment liberty or property interests.
• Claims like Rivard’s are unlikely to succeed absent very specific, extraordinary circumstances.

E. Preservation and Briefing Cases

The Court relied on several Vermont precedents to enforce preservation and briefing requirements:

• In re S.B.L., 150 Vt. 294, 297 (1988) – Reiterates that an appellant bears the burden of showing trial‑court error and that the Supreme Court “will not comb the record searching for error.”
• Bull v. Pinkham Engineering Associates, Inc., 170 Vt. 450, 459 (2000) – “Contentions not raised or fairly presented to the trial court are not preserved for appeal.”
• Johnson v. Johnson, 158 Vt. 160, 164 n.* (1992) – The Court will not address contentions so inadequately briefed as to fail to meet V.R.A.P. 28(a)’s minimal standards.
• Gallipo v. City of Rutland, 2005 VT 83, ¶ 52, 178 Vt. 244 – Issues not raised in the opening brief and appearing only in a reply brief are not adequately preserved.

These cases frame much of the Court’s refusal to reach Rivard’s late‑raised or poorly articulated constitutional claims.

IV. Legal Reasoning in Depth

A. The Two‑Step Procedural Due‑Process Analysis

Relying on Wool, the Court adhered to the standard two‑step procedural due‑process inquiry:

1. Identification of a protected interest (life, liberty, or property). Without such an interest, “due process” is not triggered at all.
2. Assessment of the procedures used to deprive the plaintiff of that interest.

In both of Rivard’s due‑process theories, the Court found that the analysis failed at step (1).

1. No Protected Interest in Appealing a Private‑Property Trespass Order

For the school trespass, Rivard argued that his procedural rights were violated when the Town manager did not respond to his attempted “appeal,” contrary to language on a trespass form saying that an order could be appealed.

The Court’s reasoning, echoing the trial court, was essentially:

• The Trespass After Warning Affidavit that Rivard attached to his own complaint is part of the pleading record and may be considered in ruling on a motion to dismiss.
• On its face, the form limited the appeal mechanism to trespass orders related to public property.
• Because the school premises are private property, and the no‑trespass order was issued at the request of private school officials, it fell outside the scope of any Town‑managed appeal process.

Therefore, even if the Town failed to process an “appeal,” it had no duty to do so under its own policy, and certainly no such duty under the federal Due Process Clause. No protected interest—liberty or property—was engaged.

2. No Liberty Interest in Accessing the Police Department

For the police department trespass, Rivard claimed a due‑process violation because:

• He was denied the ability to appeal the trespass order; and
• He was barred from the police‑department property, allegedly infringing a liberty interest in such access.

The Court rejected these claims as follows:

• Under Wool, a liberty interest can arise either from:
  • Guarantees implicit in the word “liberty” in the Constitution itself, or
  • State laws or policies creating an expectation or entitlement.
• Rivard identified no such source for a right to enter a police station or a right to be held there (rather than in a jail).
• The Court emphasized that the trespass order did not deny him the ability to:
  • Call 911 or access emergency services;
  • Obtain information from law enforcement; or
  • File complaints or reports with the police.

The Court’s reliance on the federal cases (Royer, Williams, Hannemann, Vincent) illustrates that, in its view, access to a particular public building is not the kind of “liberty” that due process protects. At most, it is a privilege or convenience.

B. Municipal Appeals and the “No Process Without Interest” Principle

A recurring structural theme in due‑process jurisprudence is that:

The mere existence (or non‑existence) of procedural avenues—such as an internal appeal—does not itself create a constitutional claim unless those procedures are attached to the deprivation of a protected interest.

In other words, “no process is due if there is no protected interest at stake.”

The Rivard order is a textbook application of this rule:

• Even if the Town failed to answer a phone call that it labelled as an “appeal line,” that failure is constitutionally irrelevant unless the plaintiff has a liberty or property interest in:
  • Being free from the trespass order, or
  • Having the appeal actually processed.
• Because no such interest exists for:
  • A trespass order initiated by a private property owner, or
  • A limited exclusion from a police department,
  there is no federal due‑process violation, regardless of how the Town administers its own procedures.

C. Issue Preservation and Appellate Restraint

Much of the order is devoted to identifying arguments that the Court declined to resolve on the merits, based on well‑established Vermont doctrine that:

• An appellant must raise an issue in the trial court to preserve it for appeal; and
• An appellant must adequately brief issues on appeal, including:
  • Specific claims of error,
  • Supporting legal authorities, and
  • Citations to the record.

Applying these principles, the Court refused to reach:

• Any argument that the police lobby is a public forum (not raised below).
• Equal‑protection claims (not raised below).
• Article 11 claims that are “indiscernible” (inadequately briefed).
• New parental‑rights and school‑trespass‑related claims first raised in the reply brief.

The order underscores that pro se status does not excuse noncompliance with basic preservation and briefing rules, a consistent theme in Vermont appellate practice.

D. Dismissal with Prejudice and Denial of Further Amendment

The trial court dismissed the complaint with prejudice, ending Rivard’s case. On appeal, he argued that he should have been allowed to amend again.

The Supreme Court’s reasoning:

• Rivard did not ask for leave to amend again in the trial court.
• The court had no duty to offer amendment sua sponte.

Combined with the substantive deficiencies in identifying any cognizable interest, this provided a clean basis for finality.

V. Impact and Significance

A. Nonprecedential Status but Clear Doctrinal Signals

The opinion begins with the standard admonition:

“Decisions of a three‑justice panel are not to be considered as precedent before any tribunal.”

That means that Rivard:

• Is not binding precedent on Vermont trial courts or on future Supreme Court panels.
• Should not be cited as controlling authority under Vermont’s rules governing entry orders.

Nonetheless, the decision offers a clear view of how the Court is likely to treat:

• Claims of a liberty interest in unrestricted access to police facilities and other municipal buildings; and
• Attempts to convert municipal trespass‑appeal procedures into enforceable federal due‑process entitlements.

In this sense, it is an important indicator of Vermont’s alignment with federal appellate jurisprudence on access to public buildings.

B. Municipal Trespass Orders and Public‑Building Access

For municipalities and law‑enforcement agencies, the order suggests that:

• Issuing no‑trespass orders that bar individuals from police‑department property does not, without more, give rise to a due‑process liberty‑interest claim, particularly where:
  • The person maintains access to emergency services and alternative ways to communicate with police;
  • The ban is not effectively a total bar on interaction with law enforcement.
• Internal appeal procedures regarding trespass notices, especially for public property, should be drafted carefully to specify their scope (e.g., whether they apply only to municipal property or also to private property at a third party’s request).
• Failure to follow such internal procedures will not, alone, create a federal due‑process claim unless they are tethered to a constitutionally protected interest.

C. Litigants’ Burden to Articulate Protected Interests

From a litigant’s perspective, the case reinforces that plaintiffs must:

• Clearly identify what liberty or property interest is at stake in a due‑process claim and articulate why that interest is protected by the Constitution or state law.
• Understand that mere dissatisfaction with police practices or municipal policies does not automatically translate into a constitutional deprivation.
• Carefully distinguish between:
  • General access to government facilities (which courts usually treat as discretionary),
  • Versus interests such as physical liberty, parental rights, or employment termination, which can be recognized due‑process interests.

D. Strict Enforcement of Preservation Rules—even for Pro Se Parties

The order also underscores Vermont’s unwillingness to relax preservation requirements, even for pro se appellants:

• Arguments must be raised in the trial court to be reviewable.
• Arguments must be developed in the opening brief, not introduced for the first time in a reply.
• Arguments must be coherently explained and supported by authority and record citations: constitutional labels alone (e.g., “Article 11,” “equal protection”) are insufficient.

This reinforces longstanding Vermont practice that the Supreme Court is not a forum for first‑instance argument and will not “rescue” underdeveloped claims.

VI. Complex Concepts Simplified

A. Procedural vs. Substantive Due Process

The Fourteenth Amendment’s “Due Process” Clause protects persons from state deprivation of “life, liberty, or property, without due process of law.” Courts recognize two related but distinct doctrines:

• Procedural due process – Focuses on the fairness of the procedures used by the government: notice, an opportunity to be heard, impartial decision‑makers, etc. This is what Rivard is about.
• Substantive due process – Focuses on what the government is allowed to do at all; for example, it protects certain fundamental rights (marriage, bodily integrity) from arbitrary interference, even with perfect procedures.

In Rivard, the Court never reaches the “adequacy of procedures” in step two, because it finds there is no protected interest at step one.

B. Liberty Interest

A liberty interest is a legally protected interest in some aspect of personal freedom. Examples include:

• The freedom from physical restraint (e.g., imprisonment);
• Certain intimate and family decisions (marriage, raising children);
• Certain statutory entitlements, if state law creates a legitimate claim of entitlement rather than mere discretion.

In contrast, courts generally do not treat the following as liberty interests:

• A preference to use one government building over another (e.g., being lodged at a police station vs. a jail).
• A general desire for unrestricted use of public facilities such as city halls, community centers, or schools, unless state law creates an explicit right of access.

The Court in Rivard follows that line, concluding that access to a police department is not a protected liberty interest.

C. Public Forum and Public Buildings

The public‑forum doctrine (not decided on the merits here) categorizes government‑controlled property by how open it is to speech and public expression:

• Traditional public forums – Streets, sidewalks, and parks that have historically been open for expression.
• Designated public forums – Places the government has opened for expressive activities.
• Nonpublic forums – Government buildings and facilities not designated or historically used for public speech, such as interior offices, jails, and many government lobbies.

Restrictions are more easily upheld in nonpublic forums. A police‑department lobby is often treated as a nonpublic forum, where the government can impose reasonable, viewpoint‑neutral restrictions on access and use; the Vermont Supreme Court in Rivard did not need to reach that question because the argument was unpreserved and the case was resolved on due‑process grounds.

D. Motion to Dismiss for Failure to State a Claim

A motion to dismiss under V.R.C.P. 12(b)(6) challenges the legal sufficiency of the complaint. The key points are:

• All well‑pleaded factual allegations are assumed to be true.
• Reasonable inferences are drawn in the nonmoving party’s favor.
• The court asks whether, if everything alleged is true, there is any legal theory that would entitle the plaintiff to relief.

If not, the complaint is dismissed. That is what happened to Rivard’s case.

E. Dismissal “With Prejudice”

A case dismissed “with prejudice” is dismissed permanently:

• The plaintiff cannot bring the same claim again in a new lawsuit.
• By affirming a dismissal with prejudice, the appellate court confirms that the defects are not merely technical but fundamental to the legal theory asserted.

F. Preservation and Adequate Briefing

Preservation means that the argument was properly raised in the trial court so that:

• The trial judge had an opportunity to consider and rule on it.
• The opposing party had a chance to respond.

Adequate briefing requires:

• A clear statement of the issue and claimed error.
• Supporting legal authority (cases, statutes, etc.).
• Citations to the record.

Vermont appellate courts routinely refuse to consider arguments that fail either test, as seen repeatedly in the Rivard order.

VII. Conclusion

Although not precedential, Rivard v. Town of Brattleboro provides a concise and instructive application of procedural due‑process principles and appellate‑practice rules in Vermont. The decision holds that:

• No federal liberty interest is implicated by being barred from entering the property of a municipal police department, particularly where the individual retains access to emergency services and the ability to interact with law enforcement by other means.
• A municipal form’s reference to an “appeal” process for trespass orders does not create a constitutional right to have that appeal heard in cases involving private property.
• Without a cognizable liberty or property interest, alleged failures of municipal procedure do not amount to due‑process violations.
• Vermont courts will strictly enforce preservation and briefing requirements, even for pro se litigants: arguments must be raised below, developed in the opening brief, and supported with authority and record citations.

In the broader legal landscape, the order aligns Vermont with federal appellate authority rejecting a constitutional right to unrestricted access to public buildings and underscores that due‑process protections are triggered not by every perceived unfairness, but only where recognized liberty or property interests are genuinely at stake.