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98-683\ / Presented By Refened To �������� RESOLUTION CITY OF SAINT PAUL, MINNESOTA L[I; C e �. - RESOLVED, that upon the request of Jeffrey Jacobsson, pursuant to Minn. Stat. § 465.76, for reunbursement of attorney's fees incuned by him in the defense of a criminal charges against him, which charges the Council finds azose out of the reasonable and lawful performance of duties for the City of Saint Paul, and after consultation with the office of the city attorney, the Council hereby directs that the appropriate city officials pay the amount of $16,000 by draft payable jointly to the said Jeffrey Jacobsson and Earl P. Gray, attorney for Jacobsson, in fu11 and complete reimbursement for said fees. Requested by Department of: By: Adopted by Councii: Date ��� Adoption Certified by Council S etary By: � -� Approve + �ayo . Date By: �I Form Ap roved by City Attorney B � � l� �u 7- 2 -9� Approved by Mayor for Submission to Counci] By: Council File # "\ 6� G d 3 Green Sheet # � ��_� t•�`�I Council OATEINITNTm 7/29/98 GREEN SHEET n,o 62171 GOUIICli YTeS. JSOStTOm Ybb-25bbU Uo[rutr�rtueBCrat L�rnYCwMCI— JSTBEONCOUNGLAGENDABY(Q4T� AUG. 5, 1998 �" MUYBERiOR tliYAiiORIEY CRYGiNIt ROViING � ❑ RIRIICULfERVICFiON. HIYYLLfErtV/11CCf6 ❑ wroRlortbmxAMt) ❑ TOTAL # OF SIGNATURE PAGES (CLJP ALL LOCATIONS FOR SIGNATURE) Reimburing attorney fees to Saint Paul Police Officer for his defense of criminal charges in the amount of $16,000.00 PLANNING COMMISSION CIB COMMITTEE CIVIL SERVICE COMMISSION Has fhis persoNfirm everworked under a wrRract for thic departmeM? YES NO Has ihia DereoNfirtn a:er been a city empbyee9 YES NO Does this persoNfirm possess a sldll not nwmallypossessetl by any curteM ciry empbyee? YES NO is Mis pereonRirtn a targeted venda? YES NO R�S'���Ch £.'•sn+�� APPROVED r.r.�i_�m.:ar��.� OF TRANSACTION S SOURCE COSTIREVQIUE BUD6ETED (CIRCIE ON� ACTIVITY NUMBER YES NO (EJ�IAIN) \ � q�-c.8� FAC'T SHEET Jacobsson Reimbursement Officer was on dury, in uniform. October 18, 1994. He struck handcuffed suspect (on video tape) at Dayton's. Deroartmental discipline Officer was disciplined, and received a 7-day suspension for this and one other incident. Criminal chazees OfFcer was chazged with 2 counts of 5`" degree assault. Judge Poritsky acquitted on both counts after trial, finding that the force used by the officer was not unzeasonable. 3- -95 Earl Crray's bill to the officer was $18,125.00. Part of that was a retainer of $2500, which has been paid, but I am not sure whether the Federation or the officer paid it. Earl would take $16,000 total in "settlemenY' to avoid fiirther delays. Civil liabilitv Suit by suspect was settled for $8,000; $6,000 by City, $2,000 by Dayton's. Suspecdvictim The suspect was convicted of felony theft, got 13 months and fine, 5 yeazs probation. 1-3-95. /. qS-GP3 Interdepartmental Memorandum CITY OF SAINT PAUL DATE: July 2, 1998 TO: Council President Dan Bostrom �������� FROM: Phil Byrne� � �� J U L 2_ 1998 �" �� �� ._ RE: Officer Jacobsson request for reimbursement Background and Facts Offlcer Jef&ey Jacobsson of the Saint Paul Police Department has requested, through his attorney, Eazl P. Cnay, that he be reimbursed for attorney's fees that he l�as incurred in the defense of crimnial charges against him. The bill for attorney's fees presented to the officer was $18,125.00, of which the attorney has received a$2,500.00 retainer. A copy of that bill is attached. In my opinion Mr. Gray's bill and his hourly rate is reasonable given (1) his experience, skill and reputation as a criminal defense lawyer in the community, and (2) the fact that the matter went to trial, and required full triai preparation and trial tune. While the bill should not necessarily reflect the outcome, attorneys who prepaze fully and in detail will more often than not obtain a better result, and in this case the judge rendered a verdict of not guilty. In this case, I have spoken with Mr. Gray, and he is willing to accept less than the total amount, i.e., $16,000, if he can save the time and preparation of an appearance before the Council on the matter. The resolution I have prepazed reflects that willingness. The incident, occurring October 18, 1994, involved a person in custody on charges of shoplifting, whom the officer was charged with assauiting while the person was handcuffed. The officer was acquitted of the assault charges after a trial to the court. A copy of the judge's memarandum decision is attached. It should be noted that the judge deternvned that the degree of force that the officer used was not shown to be unreasonable under all the facts. The particular judge is respected and has an excellent reputation in the judicial and legal community. The person who was in custody ultimately was convicted of felony theft on January 3, 1995, and received a felony-level sentence. � q� -Gt3 The officer was disciplined by the police department, and received a 7-day suspension for this and another incident. A civil suit brought by the arrested person against the City and the department store was settled favorably, with the City paying $6,000 and the deparnnent store $2,000. LeFal Analysis Minn. Stat. § 465.76, a copy of which is attached, allows but does not require a ciry (after consultation with its own legal counsel) to reimburse an employee for legal fees arising out of the defense against criminal charges when those chazges arose out of the reasonable and lawful performance of duties for the city. The city has in the past considered such requests, and each appears to have been handled on the particulaz facts and merits of each such request. The officer in this case was on duty, in uniform and responding to a call for police services. It appeazs that the Council could reasonably determine, in view of the finding of the trial court that the degree of force used was reasonabie, that this incident "azose out of the reasonable and lawful performance of duties for the city ... ." The Council could reasonably deternvne that as a policy matter the judgment of a police officer made during an incident involving potenrial crime should be second-guessed only with care, particulazly when supported by a later judicial fmding. It could determine as well that the disciplinary sanction was punishxnent enough, and that the additional burden of legal defense fees is too much. On the other hand, the statute is discretionary, and does not mandate reimbursement. The Council could reasonably decide that it would never pay for criminal defense fees when the matter involves an alleged assault on a handcuffed person in custody. The Council could also determine not to pay legai defense fees in cases where the City is required to pay money in settlement of a civil suit. Recommendation For whatever it is worth, my recommendation is that the officer be reimbursed as indicated in the resolution. However, I would also recommend that you give some consideration to the passage of an ordinance that would establish a procedure for considering reimbursement claims of this kind, as well as the development of standards or criteria by which you wouid evaluate future claims. The types of standards or factars might include whether the employee was acquitted of the charges, and the basis for the acquittal; the nature of the alleged offense, and its degree of severity; collateral matters such as civii suits and internal disciplinary actions and what those outcomes were; whether the employee was acting at the direction of a supervisor or superior; degree of good faith involved in the action; whether the morale of other employees would be adversely affected if the fees were paid or not paid; and whether employees and officers would be less likely to cany out job responsibilities in the vigorous manner that would be consistent with the public interest if such fees were not paid. The � �[y- �P3 � statute is silent on many of these factors. I believe that our office has made this suggestion in the past, and we wouid be happy to assist in the drafting and prepazation of such an ordinance. Please feel free to shaze this memo with council members and their aides, or other members of the administration, as you may see fit. cc: Tom Fabel Deputy Mayor Peg Birk City Attarney � 9!-GPs :���r����;��` ;JLI (�i�R �9 1995 March 28, 1995 Fred R. Owusu St. Paul City Clerk Room 170 City Hall St. Paul, MN 55102 Gentlemen: Timothy St. Paul St. Paul St. Paul Enclosed is a bill for legal services and exper.ses from my �egal cc�: r:sel, �arl Gray. Z raa pay:ner.t cf this b' 1 i - � 3 n th� amount of $18,372.00 pursuant to' Minn. Stat. 465.76, and this city's past practice of reimbursement of police officer's for legal Eees in criminal cases arising out of the reasonable and lawful performance of their duties. In State v. Jacobsson, I assault in the fifth degree. Poritsky after a three day trial. let me know when I will receive a � ; r f- was charged I was found Enclosed is check so I m GIT� �E�C►KC�FY ttorn•ay all 5102 with two counts of not guilty by Judge his verdict. Please ay advise my counsel. Very truly yours, . ��� � Officer Jeffrey Jacobsson I- . F ? E. Marx City A City H , MN 5 I . / qr-�r� G� M�I�eko LAW OFr�CES ' Eari P. Gray Richard J. Malacko •Afso admitred ro plac:ice in wscor:sn Jeffrey Jacobsson 19193 Euclid Path Farmington, NIN 55024 386 North Wabasha SVeet 654 Capi;a( CenVe 54 Paul, Minnesota 55102 (612) 223•5175 r'zx (612) 223-5179 Re: State ci *ii.^.nesota v. �eirrey 3accbsscn ---------------------------------------------- FOR PROFESSIONAL SERVICES RENDERED: 12/1/94 meeting with client 12/7/94 arraignment and meet with prosecutor re: tape 12/8/94 review file and preparation for trial 12/15J94 Motion To Suppress and letter 1/10/95 interview witnessess and review case 1/24/95 preparation for defense and review tape • 2/6/95 conference with client, research use of force, review tape 2/15/95 preparation £or pzetrial, review case and tape 2/16/95 pretrial . 2/27/95 telephone con£erence with prosecutor preparation for trial 3/9/95 expert test research 3/11/95 preparation £or trial 3/13/95 interview witnesses, telephone conference with prosacutor, praparaticn for trial, serve subpoena, telephor.e conference with clerk 3/14/95 telephone conference probation o£fice re: subpoena, legal research 3/16/95 meet with witness, study videotape, trial preparation 3/20/95 trial preparation 3/21/95 trial preparation and trial 3/22/95 trial preparation and trial 3/23/95 trial preparation and trial 72 1/2 hours @$250 per hr. Less retainer Office Manag Carol A. Rumi ot Counset Mark D. Nyvc Michael A. Fe Hours 2 3 5 1 2 1/2 3 2 2 2 1/2 2 2 3 5 2 1/2 3 2 10 10 10 $18,125.00 -2.500.00 $15,625.00 i y � i / =, C'i {; i . i 1 \ j • MRF-2J-1995 10 � 40 '"=,"�1TRA� TEFM OFF [ CE Ei2 292 ,',6'0 F. 01 � p, `�� ' /' 1 `j� ���-��- Sc�I�1�i 7�e �z� � A �- -c- S VERDICT - v � �� UO / �,��� � STATE v. J..FFR�Y .IACOBSON L,nc;�'-e°K,�Xi7 In thzs cas_ the defendan� faces two charges of Assault in the FiPth Degrse. Both were alleged to have occurred ay a resulC of the same iacident on October 18, 1994_ In the £irst charge, de£endant was alleged to have committed an act upon Wfllie Howard with intent to cause fear in Willie Howard of immediate hodily harm or death. In the aecond eharge, it is alleged that tise de£endant intenta.onally iaflicted or attempted eo infiict bodily harm upon Willie Howard. The state clearly t�as proven beyond a reasoztable doubt all the elements of both chazges. Specifically, with reapect to tite first, I find that defendant did commit an act - in fact, two acts - with 3ntent to nause fear in Willie Howard of immediate bodi].y harm. With respec� to the second charge, I find that defendant inflicted bodily harm upon Willie Howa'rd and did so intentionally. Of cautse, a21 the acCs occurxed withzn Ramsey County. The defensa to these charges is that defendant acted lawfully and used reasonable force in so acting. Spacifica2ly, defendant made a pzima facie showing thaC he used reasonable force , ia exeeaCing � duty imposed upon him, specifically, the recovery ot atolen property which would be used as evidence and/or returned to the lawful owner, pursuant to 689.Ob(S); and also that defendant aeted pursuant to 509,06(4) 3.n asaisting the lawful owner o£ the property, Dayton's, and the other retaflers in the same area, with resisting Wi11ie Howard's further interference with their �roperty. Defendant having made e pr£ma facie showing that he —�_ / I • hIA�'c-2d 10�41 �v?AL TcA`I GFrI�e 612 292 36'70 P.Q2 � `i� -6�3 actad lawfully, the burden of the peravas3on then ehifted to the prosecution to disprove the defenae that the de£endant acted wiLh ressonable force. It 3s my find3ng that the prosecution failed to disprove the defense beyond a reasonable doubt, and the defendant is, therefoxe, £ound not guilty on both charg,es, T'd Iike to make these co�ents for the record. It is true that aC the Cime the defendant pushed and siapped Willie Howard, Howard was handcvffed. Moreover, it is clear that ha was no threat to defendant or any other officer. Howaver, the officera were under an obligation to take the clotlies from Fioward. � They were under ehia obligation for two reaaons. First, it appeared that Howatd had done a conaiderable amount o£ shipliEting, and the o£ficers were undez an obligaCion to determina wheCher any of ths itams in HowaYd's poasesaion were stolen and, if ao, from whom. This would be necessary to determine whethez or not a crime had been aommiCeed and to gathcr evidence 3n order to prone the crime later. Second, at some point the officere would have Co xemave Xoward from Dayton's and take him to the Public Safety Building. Zt �could be inappropriaCe for them to take Howard to t'he po7.i,ce station wearing clothea that everyone knew were in • £aat stolen. Therefore, they were under aa obligation to remove the stolen property from him, within a reasonable time, before they le£t the Pub7.ia Safety $uilding, According tio the teatimvny of Mr. Howard himself, he had been maintaining that ali the clothes were his and that only the CD player was sto7.en. This waa true as late as 6:04, when Howard was talking to Dayton's employee Richard Hasty, Shortly -2- I h7F�i-24-1995 10�4: '��qL TEfaM OFrICE 612 292 36'70 P, a3 q�.68� thereafter. de£endant came into the room and, as is clear, pushed How&t'd with considerable force and slagped him on the right side of Haward's face. Howard thereafter bacame cooperative and agreed to turn over hfs clothes to Che officers. Up to that time, it is my finding that Fiowaxd had insisted thaC onlq the CD pLayer was stalen, and that all Che clothes - even thoae obviously stolen - were legitimateZy his. On the ciraumstances, I do not £ind that the state has proven the officeY's use of force was unreasonable. Both the parties have spoken of the contiuum of force, and EveretC Doolittle [phonetia� Ceatified concerning it. One of Che criticai elements o� evidence in thia case is the faat �hat, even at the lawer levels of the use of xorce, specifically the eogC, �mpty hand, 1t is gppropziate for a police officar to inflict minor, temporary, noninjurious pain upon a sub3acC in oYder to gec that person's compliance. In my view, that ia exaccly what the defendant did in this case, There is, it 3.s true, something degrading about a handcuffed indivi.dual being slapped in the face. Howevex, in tarms of overall compliance, it seems to be less painful than continuous pressure ori a pressure point, or continuous joint manipu- lation, in order to achieve campJ.iance. Any greater force, as defendant testified when asked about a closed fist, would have exceeded the bounds of reasonableneas, and an offense would have been committed. As to other aiternatives, I concLude that further wait- ing would have been fruitless, as Howard consistently had main- tained, even as late as 6:04, that ail the clothes were his. As -3- i�YaFt-24-1995 10 � 42 �7� 7EFM � I� 612 292 367g P. 84 - . . �� � i p/! .. •--� IA .• to the opCion of again asking Howard to remova hia clothea, I £ind that that opCioa had been attempted to a reasonable degree and FToward did noC camply. Fiaally, aa to the option of having enoagh of£icers force the suspeCt to remove his clothes without striking hi.m, it is clear thaC this could hava reaulted in injury to Howard or to the officers. � � -4- y» RIGtIIS, POWERS A.�ID Df,77FS; MUNI(;[PALTITFS 465.77 heating system. The authority may, in conjuncdon with a district heaung system, acquire,�� own, construct, and operate anciilary services related to an energy management and control system including, but not limited to, sensing and monitorin� services for supervision of fue and life safety systems and building security systems within the city. This section shall be effective for a port authority only after adoption of an ordinance or resolution by the board of the port authority and by the governing body of the city stating their intention to exercise the authority ailawed by this section. A port authority may, with approval of the city, lease part or all of the dis�ict heating system or contract with respect to part or ail of the dish heating system, with any person, corpora[ion, association, or public utility company for the purpose of construcring, unprov- ina, operating, or maintaining the district heating system. Subd. 8. Management of a district heating system by a port authority. A statutory or home rule charter city within which a port authority has been created may delegate to the port authority some or ail powen and responsibilities for the management and operation of a dis- trict heating system. Subd. 9. Operation by a county. A statutory or home rule charter city may contract with a county to operate a district heatino system for the provision of district heating services within some or all of the city. � History: 1981 c 334 s 6; 1981 c 3.i6 s 248; 1982 c 561 s 12; 1984 c 449 s 1-4; 1987 c 291 s 224, c 312 art 1 s 10 subd 1; 1993 c 327 s 19-21 465.75 REGULATION OF VEHICLE TOWERS LIhIITED. Subdivision 1. Definitions. For the purposes of this section, the following terms have the meanings given them: (a) "Uehicle tower" means a person enga�ed in the business of towing or recovering vehicles by means of a crane, hoist, tow bar, tow line, or dolly for the purpose of moving or transporting wrecked, daznaged, disabled, replacement, or abandoned vehicles; and @) "Municipality" means a statutory or home rule charter city or a town. Subd. 2. Request by owner. I3o municipality may prohibit the operation within its boundaries of a vehicle tower who is not licensed by that municipaliry and who is responding to a service request from a person who is the owner or operator or the agent of the owner or operator of the motor vehicle for which vetricle towin= service is requested. Subd. 3. Private property. No vehicle tower may remove a motor vehicle by towing, carrying, haulin� or pushin� from private property except at the request of a person who is the owner or operator or the agent of the owner or operator of the vehicle, or the owner or agent of the owner of the private property. History: 1983 c 115 s 1 465.76 LEGAL COUNSEL; REII�IBURSEb1ENT. If reimbursement is requested by the o�cer or employee, the goveming body of a home rule charter or statutory city or county may, after consultation with its legal counsel, reim- burse a city or counry officer or employee for any costs and reasonable attorney's fees in- curred by the person to defend chazges of a criminal nature brouoht against the person that arose out of the reasonable and lawful performance of duties for the city or county, provided if less than a quorum of the goveming body is disinterested, that such reimbursement shall be approved by a judge of the district court. History: 1984 c 650 s 1 465•77 REGULATION OF DRILLING TO PROTECT NIINED UNDERGROUND SPACE DEVELOPMENT. A home rule charter city or statutory city may regulate driiling for the purposes and in �e manner provided in section 469.141. History: 1985 c 194 s 25: 1987 c 291 s 225 \ / Presented By Refened To �������� RESOLUTION CITY OF SAINT PAUL, MINNESOTA L[I; C e �. - RESOLVED, that upon the request of Jeffrey Jacobsson, pursuant to Minn. Stat. § 465.76, for reunbursement of attorney's fees incuned by him in the defense of a criminal charges against him, which charges the Council finds azose out of the reasonable and lawful performance of duties for the City of Saint Paul, and after consultation with the office of the city attorney, the Council hereby directs that the appropriate city officials pay the amount of $16,000 by draft payable jointly to the said Jeffrey Jacobsson and Earl P. Gray, attorney for Jacobsson, in fu11 and complete reimbursement for said fees. Requested by Department of: By: Adopted by Councii: Date ��� Adoption Certified by Council S etary By: � -� Approve + �ayo . Date By: �I Form Ap roved by City Attorney B � � l� �u 7- 2 -9� Approved by Mayor for Submission to Counci] By: Council File # "\ 6� G d 3 Green Sheet # � ��_� t•�`�I Council OATEINITNTm 7/29/98 GREEN SHEET n,o 62171 GOUIICli YTeS. JSOStTOm Ybb-25bbU Uo[rutr�rtueBCrat L�rnYCwMCI— JSTBEONCOUNGLAGENDABY(Q4T� AUG. 5, 1998 �" MUYBERiOR tliYAiiORIEY CRYGiNIt ROViING � ❑ RIRIICULfERVICFiON. HIYYLLfErtV/11CCf6 ❑ wroRlortbmxAMt) ❑ TOTAL # OF SIGNATURE PAGES (CLJP ALL LOCATIONS FOR SIGNATURE) Reimburing attorney fees to Saint Paul Police Officer for his defense of criminal charges in the amount of $16,000.00 PLANNING COMMISSION CIB COMMITTEE CIVIL SERVICE COMMISSION Has fhis persoNfirm everworked under a wrRract for thic departmeM? YES NO Has ihia DereoNfirtn a:er been a city empbyee9 YES NO Does this persoNfirm possess a sldll not nwmallypossessetl by any curteM ciry empbyee? YES NO is Mis pereonRirtn a targeted venda? YES NO R�S'���Ch £.'•sn+�� APPROVED r.r.�i_�m.:ar��.� OF TRANSACTION S SOURCE COSTIREVQIUE BUD6ETED (CIRCIE ON� ACTIVITY NUMBER YES NO (EJ�IAIN) \ � q�-c.8� FAC'T SHEET Jacobsson Reimbursement Officer was on dury, in uniform. October 18, 1994. He struck handcuffed suspect (on video tape) at Dayton's. Deroartmental discipline Officer was disciplined, and received a 7-day suspension for this and one other incident. Criminal chazees OfFcer was chazged with 2 counts of 5`" degree assault. Judge Poritsky acquitted on both counts after trial, finding that the force used by the officer was not unzeasonable. 3- -95 Earl Crray's bill to the officer was $18,125.00. Part of that was a retainer of $2500, which has been paid, but I am not sure whether the Federation or the officer paid it. Earl would take $16,000 total in "settlemenY' to avoid fiirther delays. Civil liabilitv Suit by suspect was settled for $8,000; $6,000 by City, $2,000 by Dayton's. Suspecdvictim The suspect was convicted of felony theft, got 13 months and fine, 5 yeazs probation. 1-3-95. /. qS-GP3 Interdepartmental Memorandum CITY OF SAINT PAUL DATE: July 2, 1998 TO: Council President Dan Bostrom �������� FROM: Phil Byrne� � �� J U L 2_ 1998 �" �� �� ._ RE: Officer Jacobsson request for reimbursement Background and Facts Offlcer Jef&ey Jacobsson of the Saint Paul Police Department has requested, through his attorney, Eazl P. Cnay, that he be reimbursed for attorney's fees that he l�as incurred in the defense of crimnial charges against him. The bill for attorney's fees presented to the officer was $18,125.00, of which the attorney has received a$2,500.00 retainer. A copy of that bill is attached. In my opinion Mr. Gray's bill and his hourly rate is reasonable given (1) his experience, skill and reputation as a criminal defense lawyer in the community, and (2) the fact that the matter went to trial, and required full triai preparation and trial tune. While the bill should not necessarily reflect the outcome, attorneys who prepaze fully and in detail will more often than not obtain a better result, and in this case the judge rendered a verdict of not guilty. In this case, I have spoken with Mr. Gray, and he is willing to accept less than the total amount, i.e., $16,000, if he can save the time and preparation of an appearance before the Council on the matter. The resolution I have prepazed reflects that willingness. The incident, occurring October 18, 1994, involved a person in custody on charges of shoplifting, whom the officer was charged with assauiting while the person was handcuffed. The officer was acquitted of the assault charges after a trial to the court. A copy of the judge's memarandum decision is attached. It should be noted that the judge deternvned that the degree of force that the officer used was not shown to be unreasonable under all the facts. The particular judge is respected and has an excellent reputation in the judicial and legal community. The person who was in custody ultimately was convicted of felony theft on January 3, 1995, and received a felony-level sentence. � q� -Gt3 The officer was disciplined by the police department, and received a 7-day suspension for this and another incident. A civil suit brought by the arrested person against the City and the department store was settled favorably, with the City paying $6,000 and the deparnnent store $2,000. LeFal Analysis Minn. Stat. § 465.76, a copy of which is attached, allows but does not require a ciry (after consultation with its own legal counsel) to reimburse an employee for legal fees arising out of the defense against criminal charges when those chazges arose out of the reasonable and lawful performance of duties for the city. The city has in the past considered such requests, and each appears to have been handled on the particulaz facts and merits of each such request. The officer in this case was on duty, in uniform and responding to a call for police services. It appeazs that the Council could reasonably determine, in view of the finding of the trial court that the degree of force used was reasonabie, that this incident "azose out of the reasonable and lawful performance of duties for the city ... ." The Council could reasonably deternvne that as a policy matter the judgment of a police officer made during an incident involving potenrial crime should be second-guessed only with care, particulazly when supported by a later judicial fmding. It could determine as well that the disciplinary sanction was punishxnent enough, and that the additional burden of legal defense fees is too much. On the other hand, the statute is discretionary, and does not mandate reimbursement. The Council could reasonably decide that it would never pay for criminal defense fees when the matter involves an alleged assault on a handcuffed person in custody. The Council could also determine not to pay legai defense fees in cases where the City is required to pay money in settlement of a civil suit. Recommendation For whatever it is worth, my recommendation is that the officer be reimbursed as indicated in the resolution. However, I would also recommend that you give some consideration to the passage of an ordinance that would establish a procedure for considering reimbursement claims of this kind, as well as the development of standards or criteria by which you wouid evaluate future claims. The types of standards or factars might include whether the employee was acquitted of the charges, and the basis for the acquittal; the nature of the alleged offense, and its degree of severity; collateral matters such as civii suits and internal disciplinary actions and what those outcomes were; whether the employee was acting at the direction of a supervisor or superior; degree of good faith involved in the action; whether the morale of other employees would be adversely affected if the fees were paid or not paid; and whether employees and officers would be less likely to cany out job responsibilities in the vigorous manner that would be consistent with the public interest if such fees were not paid. The � �[y- �P3 � statute is silent on many of these factors. I believe that our office has made this suggestion in the past, and we wouid be happy to assist in the drafting and prepazation of such an ordinance. Please feel free to shaze this memo with council members and their aides, or other members of the administration, as you may see fit. cc: Tom Fabel Deputy Mayor Peg Birk City Attarney � 9!-GPs :���r����;��` ;JLI (�i�R �9 1995 March 28, 1995 Fred R. Owusu St. Paul City Clerk Room 170 City Hall St. Paul, MN 55102 Gentlemen: Timothy St. Paul St. Paul St. Paul Enclosed is a bill for legal services and exper.ses from my �egal cc�: r:sel, �arl Gray. Z raa pay:ner.t cf this b' 1 i - � 3 n th� amount of $18,372.00 pursuant to' Minn. Stat. 465.76, and this city's past practice of reimbursement of police officer's for legal Eees in criminal cases arising out of the reasonable and lawful performance of their duties. In State v. Jacobsson, I assault in the fifth degree. Poritsky after a three day trial. let me know when I will receive a � ; r f- was charged I was found Enclosed is check so I m GIT� �E�C►KC�FY ttorn•ay all 5102 with two counts of not guilty by Judge his verdict. Please ay advise my counsel. Very truly yours, . ��� � Officer Jeffrey Jacobsson I- . F ? E. Marx City A City H , MN 5 I . / qr-�r� G� M�I�eko LAW OFr�CES ' Eari P. Gray Richard J. Malacko •Afso admitred ro plac:ice in wscor:sn Jeffrey Jacobsson 19193 Euclid Path Farmington, NIN 55024 386 North Wabasha SVeet 654 Capi;a( CenVe 54 Paul, Minnesota 55102 (612) 223•5175 r'zx (612) 223-5179 Re: State ci *ii.^.nesota v. �eirrey 3accbsscn ---------------------------------------------- FOR PROFESSIONAL SERVICES RENDERED: 12/1/94 meeting with client 12/7/94 arraignment and meet with prosecutor re: tape 12/8/94 review file and preparation for trial 12/15J94 Motion To Suppress and letter 1/10/95 interview witnessess and review case 1/24/95 preparation for defense and review tape • 2/6/95 conference with client, research use of force, review tape 2/15/95 preparation £or pzetrial, review case and tape 2/16/95 pretrial . 2/27/95 telephone con£erence with prosecutor preparation for trial 3/9/95 expert test research 3/11/95 preparation £or trial 3/13/95 interview witnesses, telephone conference with prosacutor, praparaticn for trial, serve subpoena, telephor.e conference with clerk 3/14/95 telephone conference probation o£fice re: subpoena, legal research 3/16/95 meet with witness, study videotape, trial preparation 3/20/95 trial preparation 3/21/95 trial preparation and trial 3/22/95 trial preparation and trial 3/23/95 trial preparation and trial 72 1/2 hours @$250 per hr. Less retainer Office Manag Carol A. Rumi ot Counset Mark D. Nyvc Michael A. Fe Hours 2 3 5 1 2 1/2 3 2 2 2 1/2 2 2 3 5 2 1/2 3 2 10 10 10 $18,125.00 -2.500.00 $15,625.00 i y � i / =, C'i {; i . i 1 \ j • MRF-2J-1995 10 � 40 '"=,"�1TRA� TEFM OFF [ CE Ei2 292 ,',6'0 F. 01 � p, `�� ' /' 1 `j� ���-��- Sc�I�1�i 7�e �z� � A �- -c- S VERDICT - v � �� UO / �,��� � STATE v. J..FFR�Y .IACOBSON L,nc;�'-e°K,�Xi7 In thzs cas_ the defendan� faces two charges of Assault in the FiPth Degrse. Both were alleged to have occurred ay a resulC of the same iacident on October 18, 1994_ In the £irst charge, de£endant was alleged to have committed an act upon Wfllie Howard with intent to cause fear in Willie Howard of immediate hodily harm or death. In the aecond eharge, it is alleged that tise de£endant intenta.onally iaflicted or attempted eo infiict bodily harm upon Willie Howard. The state clearly t�as proven beyond a reasoztable doubt all the elements of both chazges. Specifically, with reapect to tite first, I find that defendant did commit an act - in fact, two acts - with 3ntent to nause fear in Willie Howard of immediate bodi].y harm. With respec� to the second charge, I find that defendant inflicted bodily harm upon Willie Howa'rd and did so intentionally. Of cautse, a21 the acCs occurxed withzn Ramsey County. The defensa to these charges is that defendant acted lawfully and used reasonable force in so acting. Spacifica2ly, defendant made a pzima facie showing thaC he used reasonable force , ia exeeaCing � duty imposed upon him, specifically, the recovery ot atolen property which would be used as evidence and/or returned to the lawful owner, pursuant to 689.Ob(S); and also that defendant aeted pursuant to 509,06(4) 3.n asaisting the lawful owner o£ the property, Dayton's, and the other retaflers in the same area, with resisting Wi11ie Howard's further interference with their �roperty. Defendant having made e pr£ma facie showing that he —�_ / I • hIA�'c-2d 10�41 �v?AL TcA`I GFrI�e 612 292 36'70 P.Q2 � `i� -6�3 actad lawfully, the burden of the peravas3on then ehifted to the prosecution to disprove the defenae that the de£endant acted wiLh ressonable force. It 3s my find3ng that the prosecution failed to disprove the defense beyond a reasonable doubt, and the defendant is, therefoxe, £ound not guilty on both charg,es, T'd Iike to make these co�ents for the record. It is true that aC the Cime the defendant pushed and siapped Willie Howard, Howard was handcvffed. Moreover, it is clear that ha was no threat to defendant or any other officer. Howaver, the officera were under an obligation to take the clotlies from Fioward. � They were under ehia obligation for two reaaons. First, it appeared that Howatd had done a conaiderable amount o£ shipliEting, and the o£ficers were undez an obligaCion to determina wheCher any of ths itams in HowaYd's poasesaion were stolen and, if ao, from whom. This would be necessary to determine whethez or not a crime had been aommiCeed and to gathcr evidence 3n order to prone the crime later. Second, at some point the officere would have Co xemave Xoward from Dayton's and take him to the Public Safety Building. Zt �could be inappropriaCe for them to take Howard to t'he po7.i,ce station wearing clothea that everyone knew were in • £aat stolen. Therefore, they were under aa obligation to remove the stolen property from him, within a reasonable time, before they le£t the Pub7.ia Safety $uilding, According tio the teatimvny of Mr. Howard himself, he had been maintaining that ali the clothes were his and that only the CD player was sto7.en. This waa true as late as 6:04, when Howard was talking to Dayton's employee Richard Hasty, Shortly -2- I h7F�i-24-1995 10�4: '��qL TEfaM OFrICE 612 292 36'70 P, a3 q�.68� thereafter. de£endant came into the room and, as is clear, pushed How&t'd with considerable force and slagped him on the right side of Haward's face. Howard thereafter bacame cooperative and agreed to turn over hfs clothes to Che officers. Up to that time, it is my finding that Fiowaxd had insisted thaC onlq the CD pLayer was stalen, and that all Che clothes - even thoae obviously stolen - were legitimateZy his. On the ciraumstances, I do not £ind that the state has proven the officeY's use of force was unreasonable. Both the parties have spoken of the contiuum of force, and EveretC Doolittle [phonetia� Ceatified concerning it. One of Che criticai elements o� evidence in thia case is the faat �hat, even at the lawer levels of the use of xorce, specifically the eogC, �mpty hand, 1t is gppropziate for a police officar to inflict minor, temporary, noninjurious pain upon a sub3acC in oYder to gec that person's compliance. In my view, that ia exaccly what the defendant did in this case, There is, it 3.s true, something degrading about a handcuffed indivi.dual being slapped in the face. Howevex, in tarms of overall compliance, it seems to be less painful than continuous pressure ori a pressure point, or continuous joint manipu- lation, in order to achieve campJ.iance. Any greater force, as defendant testified when asked about a closed fist, would have exceeded the bounds of reasonableneas, and an offense would have been committed. As to other aiternatives, I concLude that further wait- ing would have been fruitless, as Howard consistently had main- tained, even as late as 6:04, that ail the clothes were his. As -3- i�YaFt-24-1995 10 � 42 �7� 7EFM � I� 612 292 367g P. 84 - . . �� � i p/! .. •--� IA .• to the opCion of again asking Howard to remova hia clothea, I £ind that that opCioa had been attempted to a reasonable degree and FToward did noC camply. Fiaally, aa to the option of having enoagh of£icers force the suspeCt to remove his clothes without striking hi.m, it is clear thaC this could hava reaulted in injury to Howard or to the officers. � � -4- y» RIGtIIS, POWERS A.�ID Df,77FS; MUNI(;[PALTITFS 465.77 heating system. The authority may, in conjuncdon with a district heaung system, acquire,�� own, construct, and operate anciilary services related to an energy management and control system including, but not limited to, sensing and monitorin� services for supervision of fue and life safety systems and building security systems within the city. This section shall be effective for a port authority only after adoption of an ordinance or resolution by the board of the port authority and by the governing body of the city stating their intention to exercise the authority ailawed by this section. A port authority may, with approval of the city, lease part or all of the dis�ict heating system or contract with respect to part or ail of the dish heating system, with any person, corpora[ion, association, or public utility company for the purpose of construcring, unprov- ina, operating, or maintaining the district heating system. Subd. 8. Management of a district heating system by a port authority. A statutory or home rule charter city within which a port authority has been created may delegate to the port authority some or ail powen and responsibilities for the management and operation of a dis- trict heating system. Subd. 9. Operation by a county. A statutory or home rule charter city may contract with a county to operate a district heatino system for the provision of district heating services within some or all of the city. � History: 1981 c 334 s 6; 1981 c 3.i6 s 248; 1982 c 561 s 12; 1984 c 449 s 1-4; 1987 c 291 s 224, c 312 art 1 s 10 subd 1; 1993 c 327 s 19-21 465.75 REGULATION OF VEHICLE TOWERS LIhIITED. Subdivision 1. Definitions. For the purposes of this section, the following terms have the meanings given them: (a) "Uehicle tower" means a person enga�ed in the business of towing or recovering vehicles by means of a crane, hoist, tow bar, tow line, or dolly for the purpose of moving or transporting wrecked, daznaged, disabled, replacement, or abandoned vehicles; and @) "Municipality" means a statutory or home rule charter city or a town. Subd. 2. Request by owner. I3o municipality may prohibit the operation within its boundaries of a vehicle tower who is not licensed by that municipaliry and who is responding to a service request from a person who is the owner or operator or the agent of the owner or operator of the motor vehicle for which vetricle towin= service is requested. Subd. 3. Private property. No vehicle tower may remove a motor vehicle by towing, carrying, haulin� or pushin� from private property except at the request of a person who is the owner or operator or the agent of the owner or operator of the vehicle, or the owner or agent of the owner of the private property. History: 1983 c 115 s 1 465.76 LEGAL COUNSEL; REII�IBURSEb1ENT. If reimbursement is requested by the o�cer or employee, the goveming body of a home rule charter or statutory city or county may, after consultation with its legal counsel, reim- burse a city or counry officer or employee for any costs and reasonable attorney's fees in- curred by the person to defend chazges of a criminal nature brouoht against the person that arose out of the reasonable and lawful performance of duties for the city or county, provided if less than a quorum of the goveming body is disinterested, that such reimbursement shall be approved by a judge of the district court. History: 1984 c 650 s 1 465•77 REGULATION OF DRILLING TO PROTECT NIINED UNDERGROUND SPACE DEVELOPMENT. A home rule charter city or statutory city may regulate driiling for the purposes and in �e manner provided in section 469.141. History: 1985 c 194 s 25: 1987 c 291 s 225 \ / Presented By Refened To �������� RESOLUTION CITY OF SAINT PAUL, MINNESOTA L[I; C e �. - RESOLVED, that upon the request of Jeffrey Jacobsson, pursuant to Minn. Stat. § 465.76, for reunbursement of attorney's fees incuned by him in the defense of a criminal charges against him, which charges the Council finds azose out of the reasonable and lawful performance of duties for the City of Saint Paul, and after consultation with the office of the city attorney, the Council hereby directs that the appropriate city officials pay the amount of $16,000 by draft payable jointly to the said Jeffrey Jacobsson and Earl P. Gray, attorney for Jacobsson, in fu11 and complete reimbursement for said fees. Requested by Department of: By: Adopted by Councii: Date ��� Adoption Certified by Council S etary By: � -� Approve + �ayo . Date By: �I Form Ap roved by City Attorney B � � l� �u 7- 2 -9� Approved by Mayor for Submission to Counci] By: Council File # "\ 6� G d 3 Green Sheet # � ��_� t•�`�I Council OATEINITNTm 7/29/98 GREEN SHEET n,o 62171 GOUIICli YTeS. JSOStTOm Ybb-25bbU Uo[rutr�rtueBCrat L�rnYCwMCI— JSTBEONCOUNGLAGENDABY(Q4T� AUG. 5, 1998 �" MUYBERiOR tliYAiiORIEY CRYGiNIt ROViING � ❑ RIRIICULfERVICFiON. HIYYLLfErtV/11CCf6 ❑ wroRlortbmxAMt) ❑ TOTAL # OF SIGNATURE PAGES (CLJP ALL LOCATIONS FOR SIGNATURE) Reimburing attorney fees to Saint Paul Police Officer for his defense of criminal charges in the amount of $16,000.00 PLANNING COMMISSION CIB COMMITTEE CIVIL SERVICE COMMISSION Has fhis persoNfirm everworked under a wrRract for thic departmeM? YES NO Has ihia DereoNfirtn a:er been a city empbyee9 YES NO Does this persoNfirm possess a sldll not nwmallypossessetl by any curteM ciry empbyee? YES NO is Mis pereonRirtn a targeted venda? YES NO R�S'���Ch £.'•sn+�� APPROVED r.r.�i_�m.:ar��.� OF TRANSACTION S SOURCE COSTIREVQIUE BUD6ETED (CIRCIE ON� ACTIVITY NUMBER YES NO (EJ�IAIN) \ � q�-c.8� FAC'T SHEET Jacobsson Reimbursement Officer was on dury, in uniform. October 18, 1994. He struck handcuffed suspect (on video tape) at Dayton's. Deroartmental discipline Officer was disciplined, and received a 7-day suspension for this and one other incident. Criminal chazees OfFcer was chazged with 2 counts of 5`" degree assault. Judge Poritsky acquitted on both counts after trial, finding that the force used by the officer was not unzeasonable. 3- -95 Earl Crray's bill to the officer was $18,125.00. Part of that was a retainer of $2500, which has been paid, but I am not sure whether the Federation or the officer paid it. Earl would take $16,000 total in "settlemenY' to avoid fiirther delays. Civil liabilitv Suit by suspect was settled for $8,000; $6,000 by City, $2,000 by Dayton's. Suspecdvictim The suspect was convicted of felony theft, got 13 months and fine, 5 yeazs probation. 1-3-95. /. qS-GP3 Interdepartmental Memorandum CITY OF SAINT PAUL DATE: July 2, 1998 TO: Council President Dan Bostrom �������� FROM: Phil Byrne� � �� J U L 2_ 1998 �" �� �� ._ RE: Officer Jacobsson request for reimbursement Background and Facts Offlcer Jef&ey Jacobsson of the Saint Paul Police Department has requested, through his attorney, Eazl P. Cnay, that he be reimbursed for attorney's fees that he l�as incurred in the defense of crimnial charges against him. The bill for attorney's fees presented to the officer was $18,125.00, of which the attorney has received a$2,500.00 retainer. A copy of that bill is attached. In my opinion Mr. Gray's bill and his hourly rate is reasonable given (1) his experience, skill and reputation as a criminal defense lawyer in the community, and (2) the fact that the matter went to trial, and required full triai preparation and trial tune. While the bill should not necessarily reflect the outcome, attorneys who prepaze fully and in detail will more often than not obtain a better result, and in this case the judge rendered a verdict of not guilty. In this case, I have spoken with Mr. Gray, and he is willing to accept less than the total amount, i.e., $16,000, if he can save the time and preparation of an appearance before the Council on the matter. The resolution I have prepazed reflects that willingness. The incident, occurring October 18, 1994, involved a person in custody on charges of shoplifting, whom the officer was charged with assauiting while the person was handcuffed. The officer was acquitted of the assault charges after a trial to the court. A copy of the judge's memarandum decision is attached. It should be noted that the judge deternvned that the degree of force that the officer used was not shown to be unreasonable under all the facts. The particular judge is respected and has an excellent reputation in the judicial and legal community. The person who was in custody ultimately was convicted of felony theft on January 3, 1995, and received a felony-level sentence. � q� -Gt3 The officer was disciplined by the police department, and received a 7-day suspension for this and another incident. A civil suit brought by the arrested person against the City and the department store was settled favorably, with the City paying $6,000 and the deparnnent store $2,000. LeFal Analysis Minn. Stat. § 465.76, a copy of which is attached, allows but does not require a ciry (after consultation with its own legal counsel) to reimburse an employee for legal fees arising out of the defense against criminal charges when those chazges arose out of the reasonable and lawful performance of duties for the city. The city has in the past considered such requests, and each appears to have been handled on the particulaz facts and merits of each such request. The officer in this case was on duty, in uniform and responding to a call for police services. It appeazs that the Council could reasonably determine, in view of the finding of the trial court that the degree of force used was reasonabie, that this incident "azose out of the reasonable and lawful performance of duties for the city ... ." The Council could reasonably deternvne that as a policy matter the judgment of a police officer made during an incident involving potenrial crime should be second-guessed only with care, particulazly when supported by a later judicial fmding. It could determine as well that the disciplinary sanction was punishxnent enough, and that the additional burden of legal defense fees is too much. On the other hand, the statute is discretionary, and does not mandate reimbursement. The Council could reasonably decide that it would never pay for criminal defense fees when the matter involves an alleged assault on a handcuffed person in custody. The Council could also determine not to pay legai defense fees in cases where the City is required to pay money in settlement of a civil suit. Recommendation For whatever it is worth, my recommendation is that the officer be reimbursed as indicated in the resolution. However, I would also recommend that you give some consideration to the passage of an ordinance that would establish a procedure for considering reimbursement claims of this kind, as well as the development of standards or criteria by which you wouid evaluate future claims. The types of standards or factars might include whether the employee was acquitted of the charges, and the basis for the acquittal; the nature of the alleged offense, and its degree of severity; collateral matters such as civii suits and internal disciplinary actions and what those outcomes were; whether the employee was acting at the direction of a supervisor or superior; degree of good faith involved in the action; whether the morale of other employees would be adversely affected if the fees were paid or not paid; and whether employees and officers would be less likely to cany out job responsibilities in the vigorous manner that would be consistent with the public interest if such fees were not paid. The � �[y- �P3 � statute is silent on many of these factors. I believe that our office has made this suggestion in the past, and we wouid be happy to assist in the drafting and prepazation of such an ordinance. Please feel free to shaze this memo with council members and their aides, or other members of the administration, as you may see fit. cc: Tom Fabel Deputy Mayor Peg Birk City Attarney � 9!-GPs :���r����;��` ;JLI (�i�R �9 1995 March 28, 1995 Fred R. Owusu St. Paul City Clerk Room 170 City Hall St. Paul, MN 55102 Gentlemen: Timothy St. Paul St. Paul St. Paul Enclosed is a bill for legal services and exper.ses from my �egal cc�: r:sel, �arl Gray. Z raa pay:ner.t cf this b' 1 i - � 3 n th� amount of $18,372.00 pursuant to' Minn. Stat. 465.76, and this city's past practice of reimbursement of police officer's for legal Eees in criminal cases arising out of the reasonable and lawful performance of their duties. In State v. Jacobsson, I assault in the fifth degree. Poritsky after a three day trial. let me know when I will receive a � ; r f- was charged I was found Enclosed is check so I m GIT� �E�C►KC�FY ttorn•ay all 5102 with two counts of not guilty by Judge his verdict. Please ay advise my counsel. Very truly yours, . ��� � Officer Jeffrey Jacobsson I- . F ? E. Marx City A City H , MN 5 I . / qr-�r� G� M�I�eko LAW OFr�CES ' Eari P. Gray Richard J. Malacko •Afso admitred ro plac:ice in wscor:sn Jeffrey Jacobsson 19193 Euclid Path Farmington, NIN 55024 386 North Wabasha SVeet 654 Capi;a( CenVe 54 Paul, Minnesota 55102 (612) 223•5175 r'zx (612) 223-5179 Re: State ci *ii.^.nesota v. �eirrey 3accbsscn ---------------------------------------------- FOR PROFESSIONAL SERVICES RENDERED: 12/1/94 meeting with client 12/7/94 arraignment and meet with prosecutor re: tape 12/8/94 review file and preparation for trial 12/15J94 Motion To Suppress and letter 1/10/95 interview witnessess and review case 1/24/95 preparation for defense and review tape • 2/6/95 conference with client, research use of force, review tape 2/15/95 preparation £or pzetrial, review case and tape 2/16/95 pretrial . 2/27/95 telephone con£erence with prosecutor preparation for trial 3/9/95 expert test research 3/11/95 preparation £or trial 3/13/95 interview witnesses, telephone conference with prosacutor, praparaticn for trial, serve subpoena, telephor.e conference with clerk 3/14/95 telephone conference probation o£fice re: subpoena, legal research 3/16/95 meet with witness, study videotape, trial preparation 3/20/95 trial preparation 3/21/95 trial preparation and trial 3/22/95 trial preparation and trial 3/23/95 trial preparation and trial 72 1/2 hours @$250 per hr. Less retainer Office Manag Carol A. Rumi ot Counset Mark D. Nyvc Michael A. Fe Hours 2 3 5 1 2 1/2 3 2 2 2 1/2 2 2 3 5 2 1/2 3 2 10 10 10 $18,125.00 -2.500.00 $15,625.00 i y � i / =, C'i {; i . i 1 \ j • MRF-2J-1995 10 � 40 '"=,"�1TRA� TEFM OFF [ CE Ei2 292 ,',6'0 F. 01 � p, `�� ' /' 1 `j� ���-��- Sc�I�1�i 7�e �z� � A �- -c- S VERDICT - v � �� UO / �,��� � STATE v. J..FFR�Y .IACOBSON L,nc;�'-e°K,�Xi7 In thzs cas_ the defendan� faces two charges of Assault in the FiPth Degrse. Both were alleged to have occurred ay a resulC of the same iacident on October 18, 1994_ In the £irst charge, de£endant was alleged to have committed an act upon Wfllie Howard with intent to cause fear in Willie Howard of immediate hodily harm or death. In the aecond eharge, it is alleged that tise de£endant intenta.onally iaflicted or attempted eo infiict bodily harm upon Willie Howard. The state clearly t�as proven beyond a reasoztable doubt all the elements of both chazges. Specifically, with reapect to tite first, I find that defendant did commit an act - in fact, two acts - with 3ntent to nause fear in Willie Howard of immediate bodi].y harm. With respec� to the second charge, I find that defendant inflicted bodily harm upon Willie Howa'rd and did so intentionally. Of cautse, a21 the acCs occurxed withzn Ramsey County. The defensa to these charges is that defendant acted lawfully and used reasonable force in so acting. Spacifica2ly, defendant made a pzima facie showing thaC he used reasonable force , ia exeeaCing � duty imposed upon him, specifically, the recovery ot atolen property which would be used as evidence and/or returned to the lawful owner, pursuant to 689.Ob(S); and also that defendant aeted pursuant to 509,06(4) 3.n asaisting the lawful owner o£ the property, Dayton's, and the other retaflers in the same area, with resisting Wi11ie Howard's further interference with their �roperty. Defendant having made e pr£ma facie showing that he —�_ / I • hIA�'c-2d 10�41 �v?AL TcA`I GFrI�e 612 292 36'70 P.Q2 � `i� -6�3 actad lawfully, the burden of the peravas3on then ehifted to the prosecution to disprove the defenae that the de£endant acted wiLh ressonable force. It 3s my find3ng that the prosecution failed to disprove the defense beyond a reasonable doubt, and the defendant is, therefoxe, £ound not guilty on both charg,es, T'd Iike to make these co�ents for the record. It is true that aC the Cime the defendant pushed and siapped Willie Howard, Howard was handcvffed. Moreover, it is clear that ha was no threat to defendant or any other officer. Howaver, the officera were under an obligation to take the clotlies from Fioward. � They were under ehia obligation for two reaaons. First, it appeared that Howatd had done a conaiderable amount o£ shipliEting, and the o£ficers were undez an obligaCion to determina wheCher any of ths itams in HowaYd's poasesaion were stolen and, if ao, from whom. This would be necessary to determine whethez or not a crime had been aommiCeed and to gathcr evidence 3n order to prone the crime later. Second, at some point the officere would have Co xemave Xoward from Dayton's and take him to the Public Safety Building. Zt �could be inappropriaCe for them to take Howard to t'he po7.i,ce station wearing clothea that everyone knew were in • £aat stolen. Therefore, they were under aa obligation to remove the stolen property from him, within a reasonable time, before they le£t the Pub7.ia Safety $uilding, According tio the teatimvny of Mr. Howard himself, he had been maintaining that ali the clothes were his and that only the CD player was sto7.en. This waa true as late as 6:04, when Howard was talking to Dayton's employee Richard Hasty, Shortly -2- I h7F�i-24-1995 10�4: '��qL TEfaM OFrICE 612 292 36'70 P, a3 q�.68� thereafter. de£endant came into the room and, as is clear, pushed How&t'd with considerable force and slagped him on the right side of Haward's face. Howard thereafter bacame cooperative and agreed to turn over hfs clothes to Che officers. Up to that time, it is my finding that Fiowaxd had insisted thaC onlq the CD pLayer was stalen, and that all Che clothes - even thoae obviously stolen - were legitimateZy his. On the ciraumstances, I do not £ind that the state has proven the officeY's use of force was unreasonable. Both the parties have spoken of the contiuum of force, and EveretC Doolittle [phonetia� Ceatified concerning it. One of Che criticai elements o� evidence in thia case is the faat �hat, even at the lawer levels of the use of xorce, specifically the eogC, �mpty hand, 1t is gppropziate for a police officar to inflict minor, temporary, noninjurious pain upon a sub3acC in oYder to gec that person's compliance. In my view, that ia exaccly what the defendant did in this case, There is, it 3.s true, something degrading about a handcuffed indivi.dual being slapped in the face. Howevex, in tarms of overall compliance, it seems to be less painful than continuous pressure ori a pressure point, or continuous joint manipu- lation, in order to achieve campJ.iance. Any greater force, as defendant testified when asked about a closed fist, would have exceeded the bounds of reasonableneas, and an offense would have been committed. As to other aiternatives, I concLude that further wait- ing would have been fruitless, as Howard consistently had main- tained, even as late as 6:04, that ail the clothes were his. As -3- i�YaFt-24-1995 10 � 42 �7� 7EFM � I� 612 292 367g P. 84 - . . �� � i p/! .. •--� IA .• to the opCion of again asking Howard to remova hia clothea, I £ind that that opCioa had been attempted to a reasonable degree and FToward did noC camply. Fiaally, aa to the option of having enoagh of£icers force the suspeCt to remove his clothes without striking hi.m, it is clear thaC this could hava reaulted in injury to Howard or to the officers. � � -4- y» RIGtIIS, POWERS A.�ID Df,77FS; MUNI(;[PALTITFS 465.77 heating system. The authority may, in conjuncdon with a district heaung system, acquire,�� own, construct, and operate anciilary services related to an energy management and control system including, but not limited to, sensing and monitorin� services for supervision of fue and life safety systems and building security systems within the city. This section shall be effective for a port authority only after adoption of an ordinance or resolution by the board of the port authority and by the governing body of the city stating their intention to exercise the authority ailawed by this section. A port authority may, with approval of the city, lease part or all of the dis�ict heating system or contract with respect to part or ail of the dish heating system, with any person, corpora[ion, association, or public utility company for the purpose of construcring, unprov- ina, operating, or maintaining the district heating system. Subd. 8. Management of a district heating system by a port authority. A statutory or home rule charter city within which a port authority has been created may delegate to the port authority some or ail powen and responsibilities for the management and operation of a dis- trict heating system. Subd. 9. Operation by a county. A statutory or home rule charter city may contract with a county to operate a district heatino system for the provision of district heating services within some or all of the city. � History: 1981 c 334 s 6; 1981 c 3.i6 s 248; 1982 c 561 s 12; 1984 c 449 s 1-4; 1987 c 291 s 224, c 312 art 1 s 10 subd 1; 1993 c 327 s 19-21 465.75 REGULATION OF VEHICLE TOWERS LIhIITED. Subdivision 1. Definitions. For the purposes of this section, the following terms have the meanings given them: (a) "Uehicle tower" means a person enga�ed in the business of towing or recovering vehicles by means of a crane, hoist, tow bar, tow line, or dolly for the purpose of moving or transporting wrecked, daznaged, disabled, replacement, or abandoned vehicles; and @) "Municipality" means a statutory or home rule charter city or a town. Subd. 2. Request by owner. I3o municipality may prohibit the operation within its boundaries of a vehicle tower who is not licensed by that municipaliry and who is responding to a service request from a person who is the owner or operator or the agent of the owner or operator of the motor vehicle for which vetricle towin= service is requested. Subd. 3. Private property. No vehicle tower may remove a motor vehicle by towing, carrying, haulin� or pushin� from private property except at the request of a person who is the owner or operator or the agent of the owner or operator of the vehicle, or the owner or agent of the owner of the private property. History: 1983 c 115 s 1 465.76 LEGAL COUNSEL; REII�IBURSEb1ENT. If reimbursement is requested by the o�cer or employee, the goveming body of a home rule charter or statutory city or county may, after consultation with its legal counsel, reim- burse a city or counry officer or employee for any costs and reasonable attorney's fees in- curred by the person to defend chazges of a criminal nature brouoht against the person that arose out of the reasonable and lawful performance of duties for the city or county, provided if less than a quorum of the goveming body is disinterested, that such reimbursement shall be approved by a judge of the district court. History: 1984 c 650 s 1 465•77 REGULATION OF DRILLING TO PROTECT NIINED UNDERGROUND SPACE DEVELOPMENT. A home rule charter city or statutory city may regulate driiling for the purposes and in �e manner provided in section 469.141. History: 1985 c 194 s 25: 1987 c 291 s 225