Collins v. Schmidt
Filing
27
MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT. Denying 14 Defendant's Motion for Summary Judgment; Granting 19 Plaintiff's Motion for Partial Summary Judgment. (Written Opinion) Signed by Chief Judge John R. Tunheim on 8/9/2018. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DESIREE COLLINS,
Plaintiff,
v.
THADDEUS P. SCHMIDT,
acting in his individual capacity
as a St. Paul Police Officer,
Civil No. 17-5369 (JRT/BRT)
MEMORANDUM OPINION
AND ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT
Defendant.
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.
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
“JA” refers to the Joint Appendix submitted by the parties. (See Aff. of Cheri M. Sisk
¶ 2, Ex. 1, May 31, 2018, Docket No. 17.)
1
St. Paul Police Department policy is that “that when the use of a K-9 is justified in the
apprehension of a suspect, the officer will give the verbal warning, ‘Police K-9, stop or I’ll release
the dog.’ Only if there is no response from the suspect will the K-9 be released. . . . The K-9
handler shall repeat this announcement in large or multileveled buildings as necessary. In those
situations where known facts indicate that tactics and/or public safety may be compromised by a
warning, the K-9 officer shall decide or recommend that no announcement be made. For those
searches that the announcement is not made, the facts supporting the decision shall be included in
the officers’ report.” (JA at 64.) No such facts appear in Schmidt’s report.
2
3
These citations refer to the officers’ body camera video timestamps, not clock time.
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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
When Gabe crossed the fence between the backyards, Schmidt had to give a “down”
command multiple times before the dog responded. (See, e.g., Campbell Video at 40:00-40:25,
43:08-43:20.) Schmidt attributes this nonresponsiveness to Gabe’s excitement to track. (JA at 7897 (“Schmidt Dep.”) at 42:4-6.) Although Campbell would sometimes speak to Gabe, Schmidt
did not ask him to stop – even when he did so at the same time that Schmidt had to repeat his
“down” command. (See, e.g., Campbell Video at 41:40-:41:50, 43:08-43:20.)
4
5
It appears that Campbell was correct. The apprehended suspect was caught three blocks
straight south from where Collins was bit. (JA at 14.) He was wearing a black t-shirt; police were
looking for an individual in a black sweatshirt. (JA at 26.) The record is silent as to whether the
second suspect, described by police as wearing a grey sweatshirt and by the burglary victim as
wearing a white t-shirt, was ever found. (See JA at 36-38.)
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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
6
“[Gabe] does not like cats.” (Schmidt Dep. at 42:11-13.)
Police dogs like Gabe are taught to “bite and hold,” maintaining pressure until ordered to
release and increasing pressure if resistance is encountered. (Linssen Dep. at 12:21-13:23.) The
parties dispute whether the officers attempted to pull Collins back or simply held on to her arm.
7
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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 insist that they did not pull. (JA at 98-114 (“Bierwerth Dep.”) at 48:5-13; JA 115129 (“Campbell Dep.”) at 34:3-11, 39:7-12.) Campbell explains that he was trained to hang on
“to prevent the person being bit from harming the dog and preventing them from moving, which
would cause more damage.” (Campbell Dep. at 30:23-31:4.)
8
Schmidt explains that he had to maintain steady pressure on the leash because, if he let
go, the dog might let go and “readjust” – that is, bite again. (Schmidt Dep. at 48:19-49:21.)
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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.)
Winger made clear that Schmidt’s departure, though formally voluntary, was not optional.
(JA 145-152 (“Winger Dep.”) at 14:11-15:4, 22:20-23:20.)
9
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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 (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 (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
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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 (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 (1989). Therefore, the
Court must determine (1) whether “the means that terminates the freedom of movement is
the very means that the government intended,” id. at 598, and (2) whether the person whose
freedom of movement is terminated is the very person that the government intended, id.;
Moore v. Indehar, 514 F.3d 756, 760 (8th Cir. 2008) (noting that “bystanders are not seized
for Fourth Amendment purposes when struck by an errant bullet in a shootout” because
they were not the intended object of the seizure, in contrast to a case of mistaken identity).10
Regarding the first inquiry, Schmidt weakly submits that Collins was not seized
because he did not command Gabe to bite. But Schmidt admits that he gave Gabe a
command to track knowing that he would bite whoever he encountered, common
knowledge that Schmidt’s initial warnings (“you will get bit”) make clear. As such, this
matter is not genuinely in dispute.
10
Put another way, the question is not whether the person restrained is who the officer
believed them to be; rather, it is merely whether the officer intended to restrain the person’s
physical body. Moore, 514 F.3d at 760.
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Regarding the second inquiry, Schmidt contends that the bite was not intentionally
applied to Collins because Collins was not the suspect and he did not know she was there;
as such, Schmidt says, her injury is comparable to that of an innocent bystander struck by
an errant bullet. Schmidt points to Hansen v. City of St. Paul: “The dispositive inquiry is
not whether [Officer] Pavlak intended to release [K-9] Buster, the means of seizure, but
whether he intended to seize [innocent bystander] Hansen, the eventual object of the
seizure.” No. 06-1286, 2007 WL 4224052, at *3 (D. Minn. Nov. 27, 2007). In Hansen, a
police dog was chasing a suspect who ran onto a bystander’s porch, and the dog mistakenly
bit the bystander when she grabbed the suspect to stop him from running into her home.
Id. at *1. As such, Hanson is analogous to those cases in which bystanders are struck by
an errant bullet in a shootout – the suspect and the injured party were next to one another
and the force aimed at the former missed and was thereby mistakenly applied to the latter.
But that is not the case here: Collins was bit by mistake, but not because Gabe missed. As
such, Hansen is distinguishable, if not inapposite.11
Moreover, asking whether the officer “intended to seize Hansen” erroneously implies
that a generalized intent to seize one’s person is insufficient. This phrasing mirrors language in
the district court opinion in Moore v. Indehar, No. 05-451, 2006 WL 2708634, at *3 (D. Minn.
Sept. 20, 2006), rev’d and remanded on other grounds, 514 F.3d 756 (8th Cir. 2008). The Eighth
Circuit reversed the district court’s conclusion that the defendant did not intend to shoot Moore
based on the factual record, not error in the formulation of the principle. Nonetheless, this phrasing
obscures the nature of the inquiry. The question is not whether the officer intended to restrain
Hansen qua Hansen or Moore qua Moore, but rather whether the officer intended to restrain their
persons – regardless of who the officer thought they were or what the officer thought they may
have done. In each case, the officer had intended to restrain the person of another – the suspect –
but missed.
11
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This case is better understood as one of mistaken identity. Because the nature of a
police dog is to bite the first person it encounters, the dog effectively perceives the first
person it encounters to be the suspect. Schmidt knew that Gabe was likely to bite the first
person he encountered during the search for the suspects, (Schmidt Dep. at 61:25-62:3); as
such, Schmidt intended for Gabe to seize the first person he encountered.12 Moreover, the
fact that Schmidt put Gabe on a 20-foot lead ensured that he could do so with ease. Other
district courts confronting similar facts have reached the same conclusion.13
The parties dispute the extent to which Schmidt’s subjective intent matters. It is certain
from Brower that an officer may be liable in cases of mistaken identity, but it is implied by
Brendlin that the only intent that matters is that which is “objectively manifested.” Compare 489
U.S. at 599, with 551 U.S. at 260. In 2011, the Eighth Circuit noted that “Brendlin seemed to steer
the analysis toward an inquiry into ‘objective intent,’” but concluded that “it was not clearly
established as of September 2007 that an officer in Missouri could effect a seizure under the Fourth
Amendment without subjectively intending to do so.” Gardner v. Bd. of Police Comm’rs, 641
F.3d 947, 951-53 (8th Cir. 2011). Schmidt submits that Gardner shows that subjective intent may
be considered, id.; Collins submits that Gardner shows that subjective intent is not necessarily
controlling, id., and that a subsequent Eighth Circuit case shows that the pre-Brendlin bystander
cases focusing on subjective intent are no longer good law, Atkinson v. City of Mountain View,
709 F.3d 1201, 1208 (8th Cir. 2013). It makes no difference here. Schmidt’s objective intent is
crystal clear – the fact that Collins wondered what she had done wrong and surmised that the
officers were looking for a suspect demonstrates her belief that she had been targeted for seizure
– and Schmidt’s subjective intent to seize the first individual Gabe encountered is sufficient to
collapse the two inquiries into one.
12
13
In Mancini v. City of Indianapolis, No. 16-2048, 2017 WL 4250112 (S.D. Ind. Sept. 26,
2017), “officers released a[ ] . . . canine while in pursuit of a suspect fleeing a traffic stop. Hearing
a commotion and hearing her dog barking, Ms. Mancini stepped out of the front door to her home.
When she did so, [the] canine, who was inside of Ms. Mancini’s fenced yard, attacked and mauled
her.” Id. at *1. The court denied the City’s motion to dismiss because this seizure could be viewed
as unreasonable. Id. at *5. The court expressly distinguished transferred-intent doctrine, making
clear that the dog’s training to seize the first person it sees demonstrates specific intent. Id. at *4.
In McKay v. City of Hayward, 949 F. Supp. 2d 971 (N.D. Cal. 2013), “[o]fficers used a
police dog to track an armed suspect who fled after robbing a Domino’s Pizza at night. Nicky, a
Dutch Shepherd trained to bite and hold, guided the officers to an eight-foot wall. Police Officer
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This conclusion is reinforced by the Eighth Circuit’s implicit holding in Szabla v.
City of Brooklyn Park that a seizure occurs when a police dog seizes an individual that
police did not know to be present, at least when police initially believe that the individual
is the suspect. See 429 F.3d 1168, 1172-73 (8th Cir. 2005), reh’g en banc on other grounds,
486 F.3d 386 (2007).14 Here, when construing the facts in the light most favorable to
Collins, the early morning hour and relative quietness of the neighborhood allow the
inference that Schmidt believed that only the suspects were out. That Campbell observed
“it’s a lady” with apparent surprise shows that the officers may have thought that Gabe had
seized the suspect, at least until Campbell saw Collins.
Loring Cox, without warning, lifted Nicky over the wall and lowered him on a thirty-three-foot
leash into the backyard of a mobile home. Jesse Porter, an 89-year-old who resided in the mobile
home and had no connection to the robbery, was alone in his backyard. Nicky bit Porter on the
leg, leaving a gaping hole.” Id. at 971. The court concluded that Porter was seized but found that
it was not clearly established that the seizure was unreasonable. Id. at 979, 984-85.
In Garcia v. City of Sacramento, No. 10-826, 2010 WL 3521954 (E.D. Cal. Sept. 8, 2010),
“officers were pursuing a suspect, Manuel Prasad. Mr. Prasad failed to stop for a taillight violation.
Hearing the sirens and police helicopters, Plaintiff walked over to a neighbor’s backyard to
speculate why law enforcement was in the neighborhood. Suddenly, Plaintiff was attacked by [K9] Bandit.” Id. at *1. The court denied the Defendants’ motion to dismiss because the complaint
sufficiently alleged a seizure.
And in Brown v. Whitman, 651 F. Supp. 2d 1216 (D. Colo. 2009), “[b]etween 2:00 and
3:00 a.m. on July 14, 2005, a[n] officer who had his police dog off leash, was searching for two
suspected carjackers in a residential neighborhood. The police dog located plaintiff Ticoa Brown,
who had the misfortune of being in her backyard at the time of the search, and bit her, causing
injuries.” Id. at 1218-19.
“[Officer] Baker and the dog ran through the park. They approached the shelter for the
portable toilets. As soon as he came by the wall, [K-9] Rafco turned in the shelter and bit Henry
Szabla, [a homeless man] who was lying on the floor of the shelter.” Szabla, 429 F.3d at 1171-72.
The Eighth Circuit concluded that Szabla had “a submissible case of excessive force.” Id.
14
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Because Schmidt intended for Gabe to seize the first person he encountered, because
Gabe did seize the first person he encountered, and because Collins was that person, Collins
was seized.
III.
REASONABLENESS
Because a Fourth Amendment seizure occurred, the Court must determine whether
the seizure was reasonable. The Court will conclude that it was not.
To determine whether a seizure is reasonable, the Court must weigh “the nature and
quality of the intrusion on the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Howard v. Kan. City Police Dep’t, 570
F.3d 984, 989 (8th Cir. 2009) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). “The
‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham,
490 U.S. at 396.
Governmental interests include “the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and whether [the
suspect] is actively resisting arrest or attempting to evade arrest by flight.” Id. Here, the
Graham factors cut in favor of Schmidt’s decision to deploy the dog in the first instance –
burglary is a serious crime, the suspect (who broke into an occupied house) posed a threat
to law enforcement and the public, and the suspect was in flight. But the fact that Campbell
(who had observed the suspect fleeing from the house and had briefly given chase) believed
that the apprehended suspect was the one Gabe was deployed to find and said as much to
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Schmidt raises a serious question whether it was reasonable to continue the search with
Gabe. “[A] reasonable officer is not permitted to ignore changing circumstances and
information that emerges once arriving on scene.” Neal v. Ficcadenti, — F.3d —, No. 172633, 2018 WL 3397636, at *3 (8th Cir. July 12, 2018). Construing the facts in the light
most favorable to Collins, this fact alone – especially combined with Schmidt’s response
(“I want to find that sweatshirt”) – is sufficient to deny Schmidt summary judgment on the
question whether the resulting seizure was reasonable.
Turning to Collins’s Fourth Amendment interests, factors to be considered in
determining whether use of a police dog was reasonable include whether a warning was
given, the officer’s degree of control over the dog, and whether the bite was terminated in
a reasonable amount of time. See Gurule v. Ambuehl, No. 17-826, 2018 WL 1384464, at
*17, 21-23 (D. Colo. Mar. 16, 2018) (collecting cases). Schmidt’s chain of command, up
to and including the Chief of Police, concluded that his failure to give additional warnings,
his decision to give Gabe a 20-foot lead, and his failure to stop Gabe from passing out of
sight behind the dumpster violated Schmidt’s training and department policy. Schmidt
does not dispute these conclusions. The Court will find that, even construing the facts in
the light most favorable to Schmidt, Schmidt’s actions were unreasonable as a matter of
law.
First, it was unreasonable for Schmidt not to give additional warnings because
Collins could not have heard, and did not hear, his initial warnings. The “presence or
absence of a warning is a critical fact in virtually every excessive force case involving a
police dog.” Kuha v. City of Minnetonka, 365 F.3d 590, 599 (8th Cir. 2003), abrogated in
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part on other grounds by Szabla, 486 F.3d at 396. “[T]he general rule is that absent a threat
to his safety, a police officer must warn a suspect before releasing a dog upon him.” Grady
v. Becker, 907 F. Supp. 2d 975, 980 (D. Minn. 2012) (citing Kuha).15 Schmidt contends
that Kuha requires only “giving the suspect a warning,” 365 F.3d at 598, but the purpose
of a warning is broader – to “enable innocent persons to exit the area and afford suspects
an opportunity to surrender,” id. at 599 (quoting Vathekan v. Prince George’s Cty., 154
F.3d 173, 176 (4th Cir. 1998)). As such, it makes no difference whether Schmidt thought
Collins was the suspect or whether he knew she was present.16 Schmidt further contends
that he complied with Kuha because he gave two warnings when he started the search.
Shouting a warning into the void is insufficient. Presumably, that is why St. Paul policy
mandates repeated warnings in large or multileveled buildings, (JA at 64), and why
Schmidt’s failure to give additional warnings played a role in the decision to discipline
him, (JA at 39-40). Schmidt acknowledges that Collins did not hear his warnings, (Schmidt
Dep. at 55:2-4), and that most handlers would have given additional warnings and that
doing so would have been prudent, (id. at 66:15-23). Schmidt’s supervisor acknowledged
15
It is undisputed that additional warnings would not have threatened officer safety; thus,
this is not one of the “exceptional cases where a warning is not feasible.” Kuha, 365 F.3d at 599.
16
Taking the facts in the light most favorable to Collins, Schmidt should have realized that
someone was behind the dumpster. Although the officers state that they did not hear the lid
closing, a reasonable jury could find that Gabe alerted moments before circling around the
dumpster, and that a reasonable officer should have noticed his alert and given a warning at that
point. (See Linssen Dep. at 43:1-24.) Like Schmidt’s decision to continue the search after the
suspect as apprehended, this fact alone is sufficient for Collins to survive summary judgment.
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that Schmidt’s warnings would not have been effective to Collins and that effective
warnings are required. (Linssen Dep. at 33:7-20, 37:17-38:12.) Taken together, this
evidence shows that Schmidt’s failure to give effective warnings during the seven-minute
search was unreasonable as a matter of law.17
Second, it was unreasonable for Schmidt to give the dog 20 feet of leash. A 20-foot
lead might be reasonable in an open field, but not in a crowded urban area. This long lead
allowed Gabe to advance out of sight behind the dumpster. See McKay, 949 F. Supp. 2d
at 981 (30-foot lead). Schmidt’s sergeant testified that a 4- to 6-foot lead would have been
appropriate – and that he would not have approached the dumpster from a blind angle at
all. (Linssen Dep. at 45:3-46:5.) This conclusion does not require the benefit of hindsight:
the fact that Gabe had already disappeared out of sight once to bark at a cat put Schmidt on
notice that the 20-foot lead was too long. Taken together, this evidence shows that
Schmidt’s lack of control over Gabe during the seven-minute search, and particularly as
17
Schmidt contends that there is no legal standard governing when additional warnings are
appropriate. Not so. The St. Paul policy requiring repeated warnings in large or multilevel
buildings codifies the common-sense point that a warning must be audible to be effective and
implicitly requires repeated warnings in other similar circumstances. If Schmidt had given
additional warnings before entering either of the two backyards he searched at length, or moving
into the alley, or proceeding a half block down the alley, his position might be defensible. But he
didn’t. Thus, even taking the facts in the light most favorable to Schmidt, his best contention is
that it cannot be right that he “was in a constant state of violating constitutional rights as he walked
down the alley and Gabe searched for human odor – he just did not know whose rights, if anyone’s,
were being violated.” (Def.’s Resp. at 8-9, June 21, 2018, Docket No. 23.) But, comparable to an
officer who would drive down the street with a plan to blindly arrest the first person he encounters,
Schmidt’s failure to give effective warnings before deploying Gabe into new areas left him in a
constant state of proto-violation that was reified when Collins was seized.
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the officers approached the readily-apparent blind spots near the end of the alley, was
unreasonable as a matter of law.
Third, the bite was prolonged because Gabe did not respond to Schmidt’s “out”
command, (Schmidt Dep. at 25:25-26:8), and his e-collar was on a training setting instead
of the field setting, (id. at 46:2-20). Linssen attributes these issues to training failures. (JA
at 40.) As such, taking the facts in the light most favorable to Schmidt, he acted reasonably
after the bite took place – though a reasonable jury could disagree.18
In sum, because there is a serious question as to whether there was any governmental
interest justifying the search after the suspect was apprehended and because Schmidt’s
failure to give effective warnings and maintain control of his K-9 partner were
unreasonable as a matter of law, the seizure of Collins was unreasonable.
IV.
QUALIFIED IMMUNITY
Finally, the Court must determine whether Schmidt can be granted qualified
immunity for his actions. The Court will conclude that he does not.
“Qualified immunity shields a public official from liability for civil damages when
his ‘conduct does not violate clearly established statutory or constitutional rights of which
Similarly, at least one of the other officers gave Gabe an “out” command and both
officers may have attempted to pull Collins away – actions which likely tightened the dog’s grip.
Schmidt says that that he is critical of those actions, and that he told the other officers to “stop
yelling.” As such, taking the facts in the light most favorable to Schmidt, these actions cannot be
fairly attributed to him. However, taking the facts in the light most favorable to Collins, it is
notable that Schmidt did not instruct Campbell not to talk to Gabe when the dog was ignoring
Schmidt’s “down” commands or instruct the officers to avoid pulling Collins. (Id. at 50:15-51:17,
53:20-54:7; cf. Dawe v. Rogers, No. 09-620, 2010 WL 271435, at *5 (M.D. Fla. Jan. 15, 2010)
(reasonable officer instructed suspect to stop struggling to avoid further injury).)
18
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a reasonable person would have known.’” Blazek v. City of Iowa City, 761 F.3d 920, 922
(8th Cir. 2014) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified
immunity gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate the
law.” Id. (quoting Stanton v. Sims, 571 U.S. 3, 6 (2013)). Thus, Schmidt is entitled to
qualified immunity unless (1) the evidence, viewed in the light most favorable to the
plaintiff, establishes a violation of a constitutional or statutory right, and (2) the right was
clearly established at the time of the violation, such that a reasonable official would have
known that his actions were unlawful. Id. “[O]fficials can still be on notice that their
conduct violates established law even in novel factual circumstances” as long as they have
“fair warning.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). This does “not require a case
directly on point, but existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (noting that such
precedent may be in the form of controlling authority or a robust consensus of persuasive
authority).
It is clearly established that the Fourth Amendment prohibits “unreasonable
searches and seizures.” U.S. Const. amend. IV. The Court has concluded as a matter of
law that Collins was unreasonably seized. As such, the Court must now determine whether
it was clearly established law that someone in Collins’s position would be seized and that
someone in Schmidt’s position would have known the seizure was unreasonable.
Regarding the seizure, it is implicit in the Eighth Circuit’s holding in Szabla that the
plaintiff made out a submissible case of excessive force that a dog bite of an unknown
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person is a seizure. This implicit holding has been recognized in passing by another district
court in this circuit. See Mortensbak v. Butler, 102 F. Supp. 3d 1085, 1098 (D.S.D. 2015)
(distinguishing the failure to warn a suspect who was actively resisting arrest). And, as
above, it is confirmed by the decision of every district court case cited by the parties: when
a handler deploys a dog trained to bite and hold, the dog’s bite of an unknown third party
is a seizure. This robust consensus of on-point persuasive authority combined with the
Eighth Circuit’s implicit holding in Szabla is more than sufficient to conclude that the
matter was clearly established at the time.19
Regarding Schmidt’s failure to warn, even though Kuha does not explicitly spell out
the obvious point that the required warning must be audible, it does establish that the
warning must be “loud.” 365 F.3d at 599. And it is clearly established in this district that
a plaintiff’s failure to hear a warning creates a triable issue of fact as to whether the officer
properly gave one. Grady, 907 F. Supp. 2d at 982 (“A reasonable jury could infer that no
warning was given from the fact [the suspect and two officers] did not hear one.”); Kruse
v. Jackson, No. 05-2123, 2006 WL 3758204, at *5-6 (D. Minn. Dec. 20, 2006) (“[T]here
is a clear factual issue on this point: plaintiff and his witness deny hearing a warning;
Officer Jackson claims he gave one.”). Here, it is undisputed that Collins did not hear
Schmidt’s initial warnings and that Schmidt failed to give any others. And, taking the facts
in the light most favorable to Collins, Gabe’s apparent alert should have triggered Schmidt
If this a case where – as in Hanson – an untethered Gabe bounded down the alley in hot
pursuit of the suspect, only to veer off and bite Collins, the outcome might be different.
19
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to give an additional warning because he should have realized then that someone may be
present, even if Gabe was only reacting to a sound. The Court concludes that Schmidt had
fair warning that an effective warning – that is, an audible warning – was required no later
than the apparent alert.
Regarding Schmidt’s handling of Gabe, even though Kuha does not explicitly spell
out the obvious point that a reasonable officer should have control of his K-9 partner, it
does make clear that warnings are intended to “increase[] the likelihood that a suspect will
surrender,” 365 F.3d at 599, and to “enable innocent persons to exit the area,” id. (quoting
Vathekan, 154 F.3d at 176). As Gabe’s disappearance out of sight to bark at a cat should
have demonstrated to Schmidt, giving Gabe such a long leash in an urban area deprived
Collins of that opportunity. Even if this case were “novel,” Schmidt was surely on notice
that his conduct was unreasonable. Hope, 536 U.S. at 741. Even if the person behind the
dumpster had been the suspect instead of Collins, the 20-foot lead would have prevented
Schmidt from determining whether he was attempting to surrender before Gabe struck.
And, taking the facts in the light most favorable to Collins, Schmidt had every reason to
believe that the suspect had already been apprehended and posed no further threat to the
officers or the public. See Smith v. Buck, 564 F. App’x 258 (8th Cir. 2014). The Court
concludes that Schmidt had fair warning that it was unreasonable to deploy Gabe in these
circumstances and handle him in a manner that precluded suspects an opportunity to
surrender and enabled innocent persons to exit the area.
In sum, the Court cannot agree that Schmidt’s judgment was “reasonable but
mistaken.” Stanton, 571 U.S. at 3. While there is no evidence that Schmidt knowingly
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violated the law, there is no question that he should have known better. As such, Schmidt
is not entitled to qualified immunity.
CONCLUSION
Both parties have noted that this case comes to the Court in an atypical posture: few
facts are in dispute, and both the City and Officer Schmidt have acknowledged that what
happened was a terrible mistake. Schmidt’s contention is that his actions, while negligent,
did not rise to the level of a constitutional violation. But even taking the facts in the light
most favorable to Schmidt, his actions were more than negligent. They were reckless. And
they violated Collins’s clearly established constitutional rights. As such, this is the very
rare § 1983 case where the plaintiff has proved her case as a matter of law. Because the
Court will grant Collins’s motion for summary judgment on liability, the case shall be
placed on the Court’s next available trial calendar for trial on damages.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendant’s Motion for Summary Judgment [Docket No. 14]
is DENIED and Plaintiff’s Motion for Partial Summary Judgment [Docket No. 19] is
GRANTED.
DATED: August 9, 2018
at Minneapolis, Minnesota.
________s/John R. Tunheim________
JOHN R. TUNHEIM
Chief Judge
United States District Court
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