Inmate Wins Federal Appeal in K9 Bite Suit – Without a Lawyer

It is very rare to win a legal battle without professional representation, especially if you are already in jail – but a man sitting in prison on drug charges has done just that.

On December 19, 2008, Demone Smith was stopped by Brooklyn Park police in Minnesota because of a warrant for his arrest for drug distribution charges.

Patrol car videos show Smith getting out of his truck with his hands raised per police orders, but he returned to his vehicle three times. Officers called in a K9 unit, and when Smith exited his truck for the fourth time, Diesel, the police dog, was sicced on him. Diesel grabbed Smith’s jacket and pulled him across the street.

With guns drawn, police ordered Smith to the ground, and he complied. But officer Jason Buck sent Diesel back over anyway, and according to Smith’s lawsuit, that’s when the dog bit him on the thigh.

Smith claims he suffered two puncture wounds from the dog bite, causing nerve damage and permanent scarring.

In December 2009, Smith pleaded guilty to distributing cocaine and was sentenced to 10 years in prison.

Smith’s first attempt at suing the police for use of excessive force and violation of his Fourth Amendment rights was tossed out by a Minneapolis federal judge who concluded the police officer was entitled to qualified immunity.

In a move that shocked legal experts, the U.S. Eighth Circuit Court of Appeals sided with Smith (who reportedly wrote most of his motions in block print), and reinstated his case.

The StarTribune reports:

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.

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.

Officer Buck’s attorney, Jon Iverson, said that video footage from the police car cameras will show his client was justified in using the K9:

“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.”

To watch the police camera video of the incident, click here.

Daly, who frequently serves as an arbitrator in police misconduct cases, told the StarTribune that Smith could still lose if his case makes it to trial.

But in its per curiam opinion, the appeals court stated “Under these facts, a reasonable officer would not think that redeploying the police dog was a reasonable use of force.”