Lawsuit Against Rochester Police Officer Moves Ahead
Minneapolis (KROC AM News) - A federal judge has allowed a lawsuit to proceed against a Rochester cop and included a stinging rebuke of comments the officer made.
The lawsuit was filed by Michael Vernio and Kelli Gendron against RPD officer Samuel Higgins.
The officer was sent to check on a complaint of a barking dog last August and went into a yard where he made contact with Vernio and Gendron.
According to documents included in the order filed by U.S. District Judge Donovan Frank:
“Vernio expressed his frustration with the fact that the neighbors had called the police about the barking dog rather than talking to Mr. Vernio about it. Defendant speculated that this was because Mr. Vernio is “a very loud, boisterous black man.” Mr. Vernio subsequently stated that Defendant is a “white man with a gun, and I’m afraid.” Defendant replied, “and you haven’t been shot yet.”
After the encounter Higgins left.
The lawsuit accuses Higgins of violating the couple’s constitutional rights by conducting an unreasonable search.
The judge this week rejected a motion by Higgins to dismiss the lawsuit.
He also added this commentary:
“As discussed above, when Mr. Vernio expressed frustration because his neighbors allegedly chose to call the police regarding barking dogs instead of speaking directly to Mr. Vernio, Defendant stated that it was because Mr. Vernio is “a very loud, boisterous black man.” When Mr. Vernio subsequently responded that Defendant is a “white man with a gun, and I’m afraid,” Defendant stated, “and you haven’t been shot yet.” In its briefing, Defendant argued that “[a]lthough Officer Higgins’ comments could have been more respectful and more artfully phrased, they are not relevant facts to Plaintiffs’ claim under the Fourth Amendment.” Regardless of whether Defendant’s comments can provide the basis for a cause of action against Defendant—an issue the Court does not need to reach to decide this motion—the Court believes it cannot remain silent on the issue and that it is important to address Defendant’s comments. Defendant’s comments were made on August 19, 2019. On August 9, 2014, Michael Brown, an 18-year-old African American man, was fatally shot by a police officer in Ferguson, Missouri. On July 6, 2016, Philando Castile, a 32-year-old African American man, was fatally shot by a police officer in Falcon Heights, Minnesota. Even before such high-profile shootings by police of African Americans, a comment—even joking—that infers that an African American man is fortunate to not have been shot “yet” by a police officer would be problematic. Such a comment ignores the historical context of law enforcement actions against African Americans. In the United States, African Americans are disproportionately subject to the use of force by law enforcement. Indeed, African Americans continue to be disproportionately killed by law enforcement officers. It is this history of law enforcement’s violent relationship with African Americans that makes it clear that allusions to the use of force by a police officer is no joking matter. Alone, this comment is a troubling statement that reflects a lack of respect for the value of black lives. When such a comment is added to an alleged Constitutional violation, the comment is even more problematic."
"Given the recent events in Minnesota, Defendant’s comments are particularly disturbing. On May 25, 2020, George Floyd, a 46-year-old African American man was killed by a police officer in Minneapolis, Minnesota when the police officer knelt on Floyd’s neck for seven minutes and forty-six seconds. The death of Mr. Floyd has sparked protests of police brutality both domestically and internationally. In view of current events, the Court finds it necessary to emphasize the wrongness of a police officer making stereotyped comments based on an individual’s race (i.e., stating that Mr. Vernio is “a very loud, boisterous black man”) or suggesting that a citizen should be fortunate that they have not been shot “yet.” Regardless of the final outcome of this case, the Court finds such comments to be, in the worst-case scenario, outright racist remarks and, in the best-case scenario, motivated by racial stereotypes. The Court finds that the comments made by the officer, irrespective of how they are characterized, are entirely contrary to the constitutional promise of equal justice
under law in the United States of America to which every citizen is entitled."
The Star Tribune says Higgins “ was disciplined for his comments.”