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Birkeland v. Jorgenson

United States District Court, D. Minnesota

May 1, 2019

Dean A. Birkeland, as trustee for the next of kin of John O. Birkeland, Plaintiff,
v.
John Edward Jorgenson, [1] 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.

          James R. Behrenbrinker, Esq., Behrenbrinker Law Firm; and Karin Ciano, Esq., Karin Ciano Law PLLC, counsel for Plaintiff.

          Jordan 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

         INTRODUCTION

         This 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.

         BACKGROUND

         Plaintiff 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.

         Birkeland 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.).)[2] 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 happened before.

         At 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.

         Officers 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:

Vang: John--
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?
Vang: John?
Birkeland: Yes?
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 it.

         Officer 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.

         More 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 calls placed.

         Eventually, 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: ‚ÄúRoseville ...


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