A federal prisoner without a lawyer would hardly seem to stand a chance with the U.S. Eighth Circuit Court of Appeals after his suit over a police dog bite was thrown out by a judge in Minneapolis.
But in a three-page ruling earlier this month, the Eighth Circuit stunned legal observers by siding with Demone Smith, who wrote out most of his motions in block print.
Litigants who operate “pro se,” without a lawyer, are usually guaranteed to fail. To win in a federal appeals court is almost unheard of.
“It is very, very unusual, even if a client has a great lawyer,” says Joseph Daly, emeritus professor of law at Hamline University. “But for a ‘pro se’ person to be able to overturn a summary judgment is next to impossible.”
Still, that’s what happened May 1 when a three-judge appeals panel reversed U.S. District Judge Patrick Schiltz and cited cases suggesting that a jury might reasonably conclude that excessive force was used.
Smith’s suit claims that Brooklyn Park police sicced a dog on him while he was kneeling and had his hands in the air. The incident occurred on Dec. 19, 2008, when police stopped Smith’s pickup truck on the 8000 block of Zane Avenue N. because of a warrant for his arrest on drug distribution charges.
Videos of the incident, taken from cameras in the responding patrol cars, show officers using loudspeakers, ordering Smith to get out of his truck, hands raised. He gets out three times, holding his hands up, but three times goes back into the truck. He claims he was calling his family; police say they didn’t know that.
Because of his lack of cooperation, and concern that he could be armed, police called in the K-9 unit. Brooklyn Park officer Jason Buck set a police dog named Diesel on Smith when he got out of the truck for the fourth time.
Diesel grabbed Smith’s jacket and pulled him across the street, but lost control when a piece of the jacket came off in his teeth.
Guns drawn, officers ordered Smith to put his hands in the air and get down on the ground. Smith obeyed, but officer Buck set Diesel on him again. Smith said Diesel bit him, leaving puncture wounds in his thigh. Police say it was merely a scratch.
Smith was handcuffed and led away, refusing stitches, he said, because he is afraid of needles.
Conviction, then lawsuit
In December 2009, he pleaded guilty to distributing cocaine and was sentenced to 10 years in prison.
In 2012, from federal prison in Lisbon, Ohio, Smith sued Officer Buck. In February 2013, Judge Schiltz adopted U.S. Magistrate Judge Janie Mayeron’s conclusion that the police action was reasonable and that the city was immune from the suit.
But the appeals court said that Smith had gotten on his knees and “was surrounded by many officers with guns drawn,” raising the question of whether redeployment of the dog was necessary.
“Accordingly, we reverse the grant of summary judgment of Buck based on qualified immunity, and we remand to the district court for further proceedings,” wrote judges Kermit Bye, Raymond Gruender and Bobby Shepherd.
Jon Iverson, Buck’s attorney, said in an e-mail that the video shows that using the dog was justified.
“We will now proceed with discovery, bring our motion for summary judgment and show that the police action in capturing this very dangerous man, who received no injury by the way, despite his claims, should be dismissed a second time,” Iverson wrote.
Daly, who frequently acts as an arbitrator in police misconduct cases, said Smith could still lose if the case goes to trial.
“He’s a prisoner, [so] the jury is already not in his favor,” said Daly. Plus, Smith got back in his truck several times, Daly said, which could persuade a jury that more force was justified.