United States District Court, D. Minnesota
Dean A. Birkeland, as trustee for the next of kin of John O. Birkeland, Plaintiff,
John Edward Jorgenson,  individually and acting in his official capacity as a City of Roseville Police Officer; Kyle Eckert, individually and acting in his official capacity as a City of Roseville Police Officer; John Robert Adams, individually and acting in his official capacity as a City of Roseville Police Officer; and the City of Roseville, Defendants.
R. Behrenbrinker, Esq., Behrenbrinker Law Firm; and Karin
Ciano, Esq., Karin Ciano Law PLLC, counsel for Plaintiff.
Clark Leitzke, Esq., Joseph E. Flynn, Esq., Patrick S.
Collins, Esq., and Vicki A. Hruby, Esq., Jardine, Logan &
O'Brien, counsel for Defendants.
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK, UNITED STATES DISTRICT JUDGE
matter is before the Court on a Motion for Summary Judgment
brought by Defendants John Edward Jorgensen (“Officer
Jorgensen”), Kyle Eckert (“Officer
Eckert”), John Robert Adams (“Sergeant
Adams”), and the City of Roseville (the
“City”) (collectively, “Defendants”).
(Doc. No. 38.) For the reasons set forth below, the Court
grants in part and denies in part the motion.
Dean A. Birkeland (“Plaintiff”) is the brother of
John O. Birkeland (“Birkeland”) and the trustee
for his next-of-kin. On the night of February 10, 2016,
Birkeland was shot and killed by the police after an
encounter that the Court details below.
was 52 years old and lived alone in a one-bedroom apartment
(apartment #11) in Roseville, Minnesota. At approximately
9:55 p.m. on February 10, 2016, two of Birkeland's
neighbors separately called 911 to ask for a welfare check on
Birkeland. (Doc. No. 41 (“Collins Aff.”) ¶
2, Exs. A & B; Collins Aff. ¶ 2, Exs. F (Body Cam
Audio) & G (Body Cam Tr.).) The neighbors reported hearing a
man in the apartment screaming, cursing, breaking glass, and
throwing things. They also explained that the tenant might
have mental health issues and that this type of thing had
approximately 10:00 p.m., the City's dispatcher sent
Officers Mitchell Christensen and Haivy Vang to
Birkeland's apartment for a welfare check on a reported
disturbance by a male party with possible mental health
issues who was hollering and throwing things around his
apartment. (Behrenbrinker Decl. ¶ 2, Ex. 1 at 7-8.) The
dispatcher noted that “it looks like we have been there
a few times before.” (Id.) As the officers
drove to Birkeland's apartment, they also learned that
Birkeland had a misdemeanor warrant for his arrest.
(Id.) There is no dispute that this warrant did not
allow for Birkeland's arrest in his home after 10:00 p.m.
Christensen and Vang arrived at the apartment building at
10:02 p.m. Outside the apartment building, the Officers heard
loud, crashing noises. (Collins Aff. ¶ 2, Ex. D
(“Christensen Dep.”) at 75-76.) Later, standing
outside Birkland's apartment, they heard a male yelling,
crying, and swearing in an angry tone. (Id. at
77-78; Collins Aff. ¶ 2, Ex. E (“Vang Dep.”)
at 25-26.) At the door to Birkeland's apartment, Officer
Christensen began recording with his body camera. For 30
seconds, there is silence, followed by Birkeland saying
“Give me my fucking . . . please. Please.” (Body
Cam Tr.) This was followed by more silence. Both Officers
Vang and Christensen knocked loudly with no response. Officer
Christensen yelled, “John, it's the police, open
the door.” (Id.) Seconds later, Birkeland
answered, “Oh, I am OK.” (Id.) Officer
Vang repeated, “John, open the door.”
(Id.) Birkeland responded, “No, I am
OK.” (Id.) This dialogue followed:
Birkeland: No, I'm fine.
Vang: Open the door so we can take a look and then we'll
be on our way. OK? Just open the door.
Christensen: John, your neighbors heard things breaking, we
gotta make sure you're okay before we can leave.
Birkeland: No, I am fine. I was trying to find something and
I found it.
Christensen: Okay. And we need to make sure of that before we
can leave. Open the door, please.
Birkeland: No. You're-you're good. I'm . . .
Christensen: John, open the door, please.
Birkeland: No, I'm fine.
Vang: John, don't make it harder than - than it is, okay?
Open the door, let us take a look, check around and then
we're on our way. Okay?
Birkeland: No, I am fine. I'm trying to find my billfold
and I got robbed. Again.
Christensen: Okay. Well, we're the police, and can we
talk to you about that. Can you open the door, please?
Officer Vang: My name is Officer Vang. Open the door and
let's talk. Okay?
Christensen: If he's saying he was robbed, we've got
a victim of a violent crime.
(Id.) The officers knocked on Birkeland's door
again and Officer Vang said: “John. John. John. Open
the door. I don't want to have to kick it in, now open
your door, let's talk.” (Id.) Receiving no
response from Birkeland, the officers repeated that they
would have to kick down the door if Birkeland did not open
Christensen reported over the police radio that Birkeland was
not speaking to them, Birkeland reported being robbed, and
indicated that they would be forcing entry into the
apartment. Roughly 30 seconds later, Officer Christensen
again told Birkeland that they could not leave until they
knew he was all right. While still at the front door, the
officers continued to try to get Birkeland to speak with
them. They were not successful. Over the police radio,
Officer Christensen reported that Birkeland had not made
further verbal contact and noted that Birkeland had a
misdemeanor warrant for his arrest. At one point, Officer
Christensen and another officer asked Birkeland to talk to
them about his allegation that he had been robbed.
officers arrived at the scene, including Sergeant Adams. The
officers continued to knock and repeatedly ask Birkeland if
he was all right. (Body Cam Tr.) Sergeant Adams asked
Officers Christensen and Vang, “All right. So he's
EDP [an emotionally disturbed person], right?”
(Id.) Officer Christensen responded,
“That's what it sounds like, yeah . . . He was
crying at first and then he started swearing and stuff was
dropping and falling. I don't know if he's DK
[drunk], but he's (inaudible) so.” (Id.)
The officers continued for several minutes to tell Birkeland
that they were not leaving, asking that he allow them to
check to make sure he was all right, and discussing amongst
themselves how to proceed. At one point, Sergeant Adams
requests that the officers “stand off that door a
little bit” so they could try to get a phone number for
Birkeland. (Id.) Dispatch eventually noted that the
phone numbers they had were old and there was no answer to
Sergeant Adams authorized forcible entry, and the officers
used a battering ram to enter the apartment. (Id.)
Upon entering, the officers remained near the doorway for
about two minutes, repeatedly asking Birkeland to come to the
door with his hands up so that they could confirm his
well-being. Birkeland did not respond. The officers then told
Birkeland he was under arrest and that there was a warrant
for his arrest and again asked Birkeland to come to the door
with his hands up. Sergeant Adams and Officer Jorgensen, who
had a police dog with him, consulted with each other and
decided to use the dog to locate Birkeland. (Behrenbrinker
Decl. ¶ 5, Ex. 7 at 16.) With the dog barking, Officer
Jorgensen commanded: “Roseville ...