Federal judge lets lawsuit go forward against Rochester cop, citing potentially 'racist' remarks he allegedly made

U.S. District Judge Donovan Frank has rejected a motion to dismiss a lawsuit against a Rochester police officer who allegedly walked onto a black homeowner's property looking for a barking dog, referred to the homeowner's race, and joked about shooting him.

Frank referred in his order to the May 25 killing of George Floyd at the hands of Minneapolis police, writing that the Rochester officer's comments were at worst "outright racist" or at best racial stereotypes.

Jason Hively, an attorney for police officer Samuel Higgins, said in an e-mail that Higgins had been disciplined for his comments. But Hively said he was confident the suit ultimately will be dismissed.

Rochester residents Michael Vernio and Kelli Gendron sued Higgins alleging that he violated their Fourth Amendment rights by entering their backyard to investigate a neighbor's complaint about barking dogs.

According to Frank, Higgins went to the backyard where Gendron was sitting. Vernio, who is black, joined them and questioned Higgins' right to walk onto their property. He said the neighbors should have talked to him rather than call police.

Higgins, who was wearing a body camera, suggested they did so because Vernio "is a very loud, boisterous black man."

Frank wrote that Vernio responded that Higgins was a "white man with a gun and I'm afraid," to which Higgins replied, "and you haven't been shot yet."

Vernio gestured to Gendron and said, "I've got a witness, that's why," Frank wrote. He noted that Vernio then laughed.

"I'm just playing," said Higgins. He then returned to his police car and left.

Vernio and Gendron allege that Higgins violated their Fourth Amendment right by conducting an "unreasonable search." They seek unspecified damages for mental and emotional pain they say they suffered as a result of the incident.

Frank ruled that more information must be gathered to determine if Higgins had the right to walk onto the property.

As to Higgins' racial remarks, the judge wrote he could not "remain silent." He noted the fatal police shootings of two black men: Michael Brown in Ferguson, Mo., in 2014, and Philando Castile in Falcon Heights in 2016.

"A comment — even joking — that infers that an African-American man is fortunate to not have been shot 'yet' by a police officer would be problematic," Frank wrote. "Such a comment ignores the historic context of law enforcement actions against African-Americans."

Attorney Joshua Newville, who represents the Rochester couple, declined to comment or to make the couple available for an interview.

Hively said that while Higgins' comments are not related to the issue of whether he entered a private area, they were inappropriate.

"The Department conducted an investigation into this incident and concluded the officer violated its professional code of conduct policy which states officers are required to treat all members of the public with courtesy and respect. Based on his 18 years of service and no disciplinary record, he was disciplined and given a written reprimand," Hively said.