Collins v. Schmidt

• Decision Date: 09 August 2018
• Docket Number: Civil No. 17-5369 (JRT/BRT)
• Parties: Desiree COLLINS, Plaintiff, v. Thaddeus P. SCHMIDT, acting in his individual capacity as a St. Paul Police Officer, Defendant.
• Court: U.S. District Court — District of Minnesota

326 F.Supp.3d 733

Desiree COLLINS, Plaintiff,

v.Thaddeus P. SCHMIDT, acting in his individual capacity as a St. Paul Police Officer, Defendant.

Civil No. 17-5369 (JRT/BRT)

United States District Court, D. Minnesota.

Signed August 9, 2018

Robert Bennett, Andrew J. Noel, and Kathryn H. Bennett, GASKINS, BENNETT & BIRRELL, LLP, 333 South Seventh Street, Suite 3000, Minneapolis, MN 55402, for plaintiff.

Cheri M. Sisk, CITY OF ST. PAUL ATTORNEY'S OFFICE, 15 West Kellogg Boulevard, 750 City Hall and Courthouse, St. Paul, MN 55102, for defendant.

MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

JOHN R. TUNHEIM, Chief Judge

Plaintiff Desiree Collins was taking out the trash in the early morning of September 23, 2017, when K-9 Gabe – the St. Paul police-dog partner of Defendant Thaddeus ("Tad") Schmidt – bit her in the leg to knock her down, clamped onto her right arm, and held on for roughly 30 seconds. Collins filed this 42 U.S.C. § 1983 excessive force action, alleging that the attack was an unreasonable seizure under the Fourth Amendment. The parties filed cross-motions for summary judgment. Because there remains no genuine dispute of material fact that Collins was seized or that the seizure was unreasonable, and because the law was clearly established at the time of the attack, the Court will deny Schmidt's motion and grant Collins' motion. As a result, this case shall proceed to trial on damages.

BACKGROUND

The facts of this case are largely undisputed. At dawn – about 6:25 a.m. – on Saturday, September 23, 2017, Schmidt and his K-9 partner Gabe responded to a burglary in progress in a residential neighborhood of St. Paul. (JA at 10.)¹ On arrival, Schmidt met with Officers Joel Bierwerth and Brent Campbell, who had given chase to one of two suspects but had lost track of him about one block east of the house where the burglary was reported. (JA at 10-11, 19, 30.) Schmidt took Gabe out of his vehicle, put the dog on a 20-foot leash, twice gave a K-9 warning ("St. Paul Police K-9, announce yourself right now or you will get bit; Police K-9, announce yourself, come out now or you will get bit"),² and commanded the dog to track. (JA at 11; see JA at 214 ("Bierwerth Video"), JA at 215 ("Campbell Video") (collectively, "Videos") at 38:13-38:26.)³

Gabe quickly took the officers a half block south and a half block east before turning into a yard. (JA at 11.) Gabe and the officers spent roughly five minutes thoroughly investigating the backyards of two residences.⁴ (Videos at 38:40-43:45.) During that time, the officers learned that a suspect had been apprehended; Campbell told the other officers that he believed that the suspect was likely the one they were looking for.⁵ Schmidt responded, "I want to find out where he went, though. I want to find that sweatshirt." (Videos at 41:47-42:00.) Bierwerth agreed, and – as he had done before – told Schmidt that he was the boss. Schmidt responded, "You don't have to keep telling me that. I know that." (Id. ) The officers did not discuss the other suspect, and nothing in the record indicates that they continued the search to find him. (See id. )

Eventually, Gabe led the officers back north, into an alleyway. (JA at 11.) Notably, Schmidt did not give K-9 warnings when the dog entered the backyard of either residence or when it went into the alley. (Videos at 38:45-38:55, 40:30-41:00, 43:35-44:00.) As the officers moved further east, "Gabe was showing some indications that he was searching/locating human odor." (JA at 11.) At one point, Gabe rounded the corner of a garage, disappearing out of the officers' sight to focus his attention on what officers – guns drawn – came to realize was simply a cat.⁶ (Videos at 44:15-44:30.) The officers proceeded down the alley, discussing the likely path of the suspect's flight. (Bierwerth Video at 45:00-45:12.)

As the officers neared a dumpster at the end of the alley, a noise is audible on their body camera recordings; Gabe's ears perked up, his head lifted, and his pace toward the dumpster visibly hastened. (Videos at 45:22-45:30.) Perked ears and head movement can be an alert that the dog has found the source of the odor. (JA at 78-97 ("Schmidt Dep.") at 43:6-15.) Schmidt acknowledges that Gabe's ears perked, but believes that he was alerting to the sound rather than to odor; Schmidt denies hearing the sound. (Id. at 43:24-44:7.) Schmidt's then-supervisor, Sergeant John Linssen, agrees that Gabe was likely not alerting to human odor. (JA at 130-144 ("Linssen Dep.") at 43:10-45:2.)

In any event, Gabe quickly proceeded down the alley and circled out of sight between a car and the far end of the dumpster. A person began to scream. (Videos at 45:30-45:35.) Although Schmidt "could not see the person," he "knew Gabe had apprehended someone." (JA at 11.) Campbell observed, "Oh, there's a lady," and approached her, grabbing her arm and hanging on as Gabe pulled at her other arm.⁷ (Videos at 45:35-45:40.) Either Bierwerth or Campbell attempted to command the dog to "out," or release, which may have further aggravated the dog; Schmidt told them to "stop yelling." (Id. ; Schmidt Dep. at 35:10-36:15, 51:5-17.) Schmidt can be observed, still behind the dumpster, pulling in Gabe's leash foot-by-foot while ordering him to "out."⁸ (Videos at 45:38-45:42; Schmidt Dep. at 48:19-49:21.) Schmidt wrote in his report that, as he rounded the corner of the dumpster, he saw that Gabe had "apprehended" a woman and "knew this was not our suspect." (JA at 11.) Gabe continued to bite even as Schmidt continued to pull in his leash and command him to "out." (Videos at 45:42-45:48.) Schmidt attempted to use Gabe's electric collar, or "e-collar," to persuade him to obey, but the attempt was unsuccessful. (Schmidt Dep. at 46:2-47:10.) Schmidt eventually grabbed Gabe with both arms and pulled him off. (Id. at 45:45-46:05.) In total, the dog was clamped onto the woman's left arm for roughly 30 seconds.

The woman was Plaintiff Desiree Collins, who was taking out the trash. (JA at 17.) Collins, who lost her right hand in a fire years ago, was 52 at the time of the attack. (JA at 76.) After the officers stood her up, she immediately asked, "What did I do to him?" Bierwerth responded, "Nothing. You were just in the wrong place at the wrong time, ma'am." (Videos at 46:08-46:13.) As Collins waited for medical help to arrive, she asked the officers if they were looking for somebody in the neighborhood, and officers confirmed that they were. (Id. at 48:30-48:38.) Collins was taken to Regions Hospital for treatment of centimeter-deep lacerations to her arm

and leg. (JA at 69-72.)

Sergeant Linssen investigated the incident. Linssen found that Schmidt's handling of Gabe and Collins after the bite was reasonable but faulted Schmidt's actions leading up to the bite, including his failure to give additional warnings, the long 20-foot lead, and improperly setting the dog's e-collar to a constant setting instead of a setting that would ramp up over time. (JA at 39-40; see also Linssen Dep. at 37:17-46:13.) Linssen's supervisor, Senior Commander Karsten Winger, reviewed Linssen's report and submitted the matter to Internal Affairs, recommending discipline. (JA at 37-38.) Internal Affairs and the Chief of Police agreed, and Schmidt was suspended without pay for one working day for his failure to follow department policy and training standards. (JA at 36, 43-44.) Schmidt did not appeal his discipline and stated in his deposition that he accepted it as "essentially accurate and fair." (Schmidt Dep. at 20:18-22.) Schmidt specifically admits that he should have set the e-collar at a higher setting, (id. at 46:2-20), and that other warnings would have been prudent, (id. at 66:15-23). Schmidt and Gabe left the K-9 unit; Schmidt transferred to a patrol district and Gabe retired.⁹ (See id. at 6:11-19.) Schmidt now cares for Gabe at home. (Id. at 5:4-10.)

Collins filed this 42 U.S.C. § 1983 action, alleging that the attack was an unreasonable seizure under the Fourth Amendment. (Compl., Dec. 6, 2017, Docket No. 1.) The parties filed the cross-motions for summary judgment that are now before the Court. (Pl.'s Mot. for Partial Summ. J., May 31, 2018, Docket No. 19; Def.'s Mot. for Summ. J., May 31, 2018, Docket No. 14.)

DISCUSSION

I. STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the lawsuit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II. SEIZURE

As an initial matter, the Court must determine whether Gabe's bite of Collins was a Fourth Amendment seizure. The Court will conclude that it was.

A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied [to that person]. Thus, an unintended person may be the object of the detention, so long as the detention is willful and not merely the consequence of an unknowing act.

Brendlin v. California , 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (cleaned up). In short, a seizure occurs when a person is "stopped by the very instrumentality set in motion or put in place in order to achieve that result." Brower v. Cty. of Inyo , 489 U.S. 593, 599, 109...