• May 30, 2018

Grass Single Nozzle 1Update (May 30, 2018): We learn this week that the defendant City of Gilbert in the lawn mower clipping/alleged police misconduct case, described below, has apparently satisfied its cost judgment of $7,301.87 against the unsuccessful plaintiff in this small-town dust-up of alleged police officer/citizen (mis)conduct.

This post should serve as a seasonally appropriate reminder about the perils of grass clippings. It is also a reminder to plaintiff’s lawyers, who must always warn their clients, even “pure contingent fee” clients, that their worst case scenario can be worse than a recovery of zero dollars.

Update (February 6, 2015): The decision is in: total defense win in the Eveleth grass clipping case, described below. Congratulations to defense lawyers, Pam Vanderweil and Anna Yunker of Everett & Vandwerweil.

Update (January 27, 2015): Consider these facts: (1) There was a relatively innocuous complaint called into 911 of a rural police force about grass clippings being piled on a public roadway on a hot summer day outside of Duluth, Minnesota, (2) the investigating police officer ordered a citizen to stand by the police car while the issue was being investigated, (3) the citizen, allegedly afraid of the officer, defied the officer and walked toward her house, and (4) the police officer, whose order has been ignored, grabbed the citizen, pulled her toward the police car, hand-cuffed her and arrested her.

The parties dueling proposed “findings of fact and conclusions of law” (“FOFCOL”) (here and here) are roughly in agreement as to these facts. The respective parties’ FOFCOLs diverge violently as to many other details of that hot July 2012 afternoon skirmish.

Chief U.S. District Court Judge Michael J. Davis (D. Minn.) had to sit through this trial. Now he must immerse himself in the weeds of this turf battle and decide whether Officer Engelstad or Lanette Heitzman was out of line…

Original post (November 17, 2014): In July of 2012, around noon, Lynnette Rae Heitzman was mowing her lawn in Eveleth, Minnesota. She was confronted by a Gilbert, Minnesota police officer, Scott Engelstad, who instructed her to stop her mowing.

Officer Engelstad supposedly had concerns about clippings in the road. The officer says that someone called “911” to complain about  “a large row of grass clippings, about 600 feet long, [that] had been dumped on both sides of Differding Point Road.”

Did the fact that Ms. Heitzman’s brother was “involved in substantial contested matters with [Officer] Engelstad’s wife” (Complaint, Para. 43) influence the interaction between Ms. Heitzman, Officer Engelstad, and the City of Gilbert?

The interaction did not go well. Heitzman alleges that she was screamed at, dragged some distance, thrown against a car, handcuffed, and illegally arrested. Officer Engelstad’s version of the events of that afternoon were entirely different.

Trial starts today on Ms. Heitzman’s claims of excessive force before United States District Court Chief Judge Michael J. Davis (D. Minn.).

Read after the jump about a typical pretrial evidence fight in the case…

In preparing for trial, it seems that Ms. Heitzman shared with her lawyer for the first time that she had attempted suicide in the aftermath of the grass clipping conflict. Plaintiff’s counsel immediately gave written notice of this new information to defense counsel in order to preserve the right to offer evidence at trial.

Defense counsel objected and sought an order from the Court excluding this late-disclosed evidence.

The evidence may come in, Judge Davis ruled on Friday.

(Also on Friday, Mike Unger posted on the “Legal Fiction Affliction.” I note there is hint of paradox when a party brings a motion to exclude evidence before the judge who will preside over the case in a bench trial. Trial lawyers recognize, however, that trials are not only performances before a trier of fact. Trials are also compilations of a record for purposes of appellate review. So it makes sense to ask the trial judge to exclude evidence even when, by drawing the trial judge’s attention to the evidence, one has, in a non-legal sense, put the “non-evidence” before the very trier of fact that you do not want to consider it.)

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