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K-9 dog bite lawsuit settled out of court

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Posted: Friday, September 28, 2012 3:36 pm

A lawsuit alleging excessive force by the Dubuque Police Department regarding its use of a now retired K-9 and racial discrimination will be settled prior to the Oct. 15 federal court date.

The Iowa Communities Assurance Pool, the city’s insurer, has negotiated a settlement of $150,000 to be split among the three plaintiffs — Antoine Clemons, Michael Cooper and Phillip Robinson. The city continues to deny all claims made by the plaintiffs, but City Attorney Barry Lindahl has asked the Dubuque City Council to defer to ICAP’s assessment of the case and refrain from objecting to the settlements at its meeting Monday.

“Under the contract, ICAP has the authority to negotiate and settle claims,” said Les Reddick, of Kane, Norby and Reddick, who represented the city in this case. “The council is not being asked to approve the settlement.”

The council does have the right to object, but if the case went to trial the city would be responsible for any judgment in excess of the settlement amount and any attorneys fees incurred by ICAP after the settlement opportunity.

“Although it is our conclusion that the risk of an adverse judgment is low, a judgment in excess of the settlement amount is possible,” Lindahl advised the council in a memorandum. “In the event of an adverse judgment, the city would also be responsible for the plaintiffs’ attorneys fees which in civil rights cases are typically substantial.”

The city will be responsible for $17,876.23 and insurance will cover the remaining $132,123.77.

By signing the agreements the plaintiffs release any claims they have made, acknowledge there was insufficient evidence to proceed with the discrimination claim and requires the plaintiffs to acknowledge that the city not only denies fault and liability, but that the payment is being made solely to preclude further litigation costs.

Dave O’Brien, the plaintiffs’ attorney, said his clients signed the agreements, but the dollar figure speaks louder than their signatures.

“It speaks volumes,” O’Brien said. “I’m sure the city is not in the practice of paying out $150,000 in cases it thinks it will win. Quite frankly, I hope as a result of this case the city re-evaluates the way it uses its K-9 to ensure these types of incidents don’t continue to occur.”

O’Brien said evidence was lacking to support allegations of racism in the case and that in his opinion Officer Brian Wullweber routinely mishandled the animal without regard to the suspect’s race.

“It is my conclusion that African-Americans sometimes react differently to police than non-minority people,” O’Brien said. “A lot of people will look at this and ask why run, especially since two of these cases involved traffic stops. I believe it’s the reaction of some African-Americans to police officers that accounts for the use of the K-9 and not any racism on the part of the officer or the department.”

The case began in March 2008 when officers observed Clemons run a red light. He then attempted to elude police who clocked his vehicle at more than 50 mph near Fifth and Hill streets. A passenger jumped out of the vehicle and Clemons eventually fled on foot. Clemons claims that once he realized he couldn’t escape he knelt on the ground with his hands above his head, but Officer Wullweber released the police dog anyway. Clemons was bit repeatedly on the left arm, left hip and on top of the head.

Clemons was charged with felony eluding, driving while revoked and interference with official acts. He later was dismissed from the lawsuit when it was re-filed in federal court because too much time had elapsed between the incident and the filing. The dismissal remains under appeal.

Cooper and Robinson were added to the lawsuit after claiming similar interactions with Wullweber and the K-9.

Cooper was charged with a no-contact order violation and interference with official acts after police received a tip of his being at a no-contact-ordered home on Nov. 9, 2009. Cooper claimed officers surrounded the home leaving no avenue of escape, but released the dog anyway. Cooper was bit repeatedly on the forearm.

Robinson was charged with two counts of eluding/fleeing, driving while barred and numerous traffic citations on Nov. 22, 2009. Police said he fled across the Illinois bridge on U.S. 20 at speeds between 90 and 100 mph. Robinson’s vehicle crashed into an open field in Illinois. He broke his left ankle during the crash and was unable to run. He claims he exited the car and got down on his stomach with his arms extended in a surrender position. Wullweber arrived shortly after the crash and released his K-9, which bit Robinson repeatedly on the left arm and shoulder.

The case went to the Iowa District Court for Dubuque County on March 1, 2010. That lawsuit was dismissed without prejudice in October after a dispute regarding officers wearing their uniforms in court. A judge ruled that police officers should be allowed to wear their uniforms while testifying. The lawsuit was re-filed in federal court.

A TH review in 2010 revealed that over three years, the police dog bit more than three times as many suspects as in similarly sized Iowa cities.

Police Chief Mark Dalsing declined to comment since the formal settlement is still pending.

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