• May 26, 2011

Sued for violating Plaintiff John Sorenson’s constitutional rights, Stearns County Sheriff’s Department Lieutenant David McLaughlin testified that his gun accidentally discharged in the process of arresting John Sorenson who was “passively resisting” arrest during a drug bust at a “McStop” (McDonald’s Restaurant and gas station) in St. Cloud, Minnesota.

Consequently, McLaughlin, through counsel, argued that he could not be found liable for violating Sorenson’s constitutional rights, which would, he argued, require intent (an “intent to harm standard,” specifically).  Not so, concluded U.S. District Court Judge John R. Tunheim (D. Minn.) this week.

Citing recent U.S. Supreme Court precedent, Judge Tunheim pointed out that the Lieutenant’s argument would theoretically get him off the hook if he meant to pistol whip Sorenson and accidentally shot him (quoting the Supreme Court).  Putting the argument on these terms might make the Court’s decsision seem quite obvious even if, from a distance, it seems hard to see how an accident can be deemed an “unreasonable search and seizure” in violation of the Fourth Amendment.  (But the intended act — pistol whipping — would have violated the Fourth Amendment.  The situation is therefore distinguishable.  In this case, the officer testified that he was trying to shove the resistant Sorenson with the butt of his hand — an act not likely to be deemed a violation of Sorenson’s constitutional rights.)

Finally, Judge Tunheim suggested that a jury could reasonably conclude that the shooting was “volitional,” that is, intentional.  He did, after all, point the gun at the man and discharge his fire-arm.  Also, Judge Tunheim gave some weight to the evidence that the officer did not say the shooting was accidental until four days after the shooting, and only after consultation with legal counsel.  (Editorial aside:  is the exercise of the officer’s right to be silent and to confer with counsel before speaking a basis for suggesting the shooting may have been intentional?  Is the fact that the officer did not exclaim, “Oh shit,” contemporaneously really of any probative value? (That factual scenario was referenced by Judge Tunheim from another case that he distinguished.))

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