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Judge makes point about officer's racist language in lawsuit opinion

The judge made sure to call out the officer for his potentially racist remarks.

A lawsuit against a Rochester police officer that alleges he potentially made racist remarks to a Black resident will go ahead after a judge rejected a motion to dismis.

U.S. District Judge of Minnesota Donovan Frank on June 29 denied a motion from Rochester police officer Samuel Higgins to dismiss a lawsuit against him. 

The lawsuit, filed by Michael Vernio and Kelli Gendron, alleges he violated their Fourth Amendment rights on Aug. 19, 2019, when he walked onto their property looking for a barking dog after a neighbor called police to report it. 

In his opinion, Frank took the time to address some words Higgins chose to use while responding to the call, with Frank noting that what he said has no bearing on his opinion but writes "the court believes it cannot remain silent on the issue and that it is important to address the defendant's comments."

According to the opinion, which cites body camera footage, Higgins was speaking with Vernio and Gendron and Vernio expressed his frustration that the neighbor would call the police instead of coming to talk to him about the barking dog. 

Higgins speculated that maybe it's because he is "a very loud and boisterous black man" to which Vernio responded that Higgins is a "white man with a gun, and I'm afraid." Higgins then said: "And you haven't been shot yet."

"The court finds it necessary to emphasize the wrongness of a police officer making stereotyped comments based on an individual’s race ... or suggesting that a citizen should be fortunate that they have not been shot 'yet,'” Frank writes in his opinion, at one point citing the high-profile deaths by police of Minnesotan Black men, including Philando Castile and George Floyd.

He adds that Higgins' comments are "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," Frank adds.

What happened?

According to the order filed June 29, Higgins responded to Vernio and Gendron's home. A neighbor had called the police complaining of barking dogs.

Higgins walked onto Vernio and Gendron's property without knocking on the door, body camera footage shows, eventually seeing Gendron sitting near the garage. He asked her where the barking dogs were and if they belonged to her, saying "We were out here this morning and they couldn't find the dogs."

Vernio then joined the conversation and asked Higgins whether the Rochester Police Department's officers "make it a habit of just walking on private property."

Higgins replied, "When we're looking for a barking dog, which is a violation of the law, yes." He also said he "saw [Gendron] sitting back here."

Vernio said he couldn't have seen her sitting at the back corner of the property. And Higgins said, "I am investigating a crime. I can be on your property."

Vernio responded that a barking dog is not a crime.

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Higgins then told Gendron he was going to leave and Vernio said "thank you," but Higgins and Gendron continued to chat. Gendron explained her concern that the neighbors were harassing them by calling the police, and Vernio said he was frustrated that the neighbors called the police about the dog rather than talking to him about it. 

Higgins speculated that this was because he is "a very loud, boisterous Black man," prompting Vernio to respond by pointing out that Higgins is "a white man with a gun, and I'm afraid."

Higgins said, "and you haven't been shot yet."

Vernio said, "I've got a witness, that's why." Vernio then laughed and asked if Higgins turned off his body camera, then said "I'm just playing."

After the conversation, Higgins left the property and when he returned to his car, he ran a search of the license plate number of the truck parked in the driveway.

Vernio and Gendron allege they have been injured, including mentally and emotionally, by Higgins' actions and are seeking an order declaring Higgins' actions violated the Fourth Amendment and granting an unspecified amount of damages. 

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