PRPD

Panel to decide on lawsuit’s future
By Steven P. Wagner, The Forum
Published Thursday, December 14, 2006

Nearly 29 months ago, David Sherbrooke found himself arrested for drunken driving, strip-searched and locked up in jail.

Prosecutors dropped criminal charges stemming from the arrest, but Sherbrooke claims police violated his rights.

Now a federal appeals court must decide whether his lawsuit against Pelican Rapids, Minn., and its officers will go to trial.

The 8th U.S. Circuit Court of Appeals ordered lawyers Monday to submit written arguments in the case by March 15. A panel then plans to hear oral arguments before deciding if Sherbrooke’s lawsuit can go forward.

At its core, Sherbrooke’s lawsuit claims officers didn’t have probable cause to make the July 25, 2004, stop or the right to record a private conversation with his attorney.

“Saying it and proving it is two different things,” said John Iverson, a Bloomington attorney for the city and officers. He claims immunity laws protect the city and allow police to do their jobs.

A Jan. 8 settlement conference, ordered by a Minnesota federal judge, likely will be canceled because the 8th Circuit agreed to hear an appeal on a ruling that keeps Sherbrooke’s claims intact.

Sherbrooke, 40, of Pelican Rapids wants damages in excess of $75,000.

Iverson claims U.S. District Judge Michael Davis erred in a Nov. 6 ruling that contradicts how Minnesota traffic stops have been done for years.

Davis’ ruling said police violated Sherbrooke’s right to privacy when officers recorded his call to an attorney. The judge said damages should be decided at trial but didn’t rule on whether police had cause to stop Sherbrooke, who was driving between bars on the night of his class reunion.

Davis also threw out other claims, including false arrest and malicious prosecution, against Pelican Rapids Police Chief Scott Fox and officers Scott Sachs and Ted Leabo.

“We will be seeking to get the last remaining claim reversed and be done with this case,” Iverson said. “You don’t have a constitutional right to drive a car when you’re intoxicated.”

But Sherbrooke’s attorney, Kyle Hart of Minneapolis, sees the appeal differently.

“It looks like the city is running scared,” said Hart, who added Sherbrooke rejected an offer to settle the case for $37,000 and attorney fees.

Iverson declined to comment on the offer.

Controversial stop
Sherbrooke and Sachs, the officer who stopped him, agree on few details from the night.

Prior to the stop, Sherbrooke said he pulled to the side of U.S. Highway 59 and turned on his pickup’s hazard lights while making a phone call. The policeman said he stopped Sherbrooke because the hazard lights were on while he drove the pickup.

Officers arrested Sherbrooke for failing three sobriety tests and finding a loaded Glock .40-caliber pistol inside the pickup. Sherbrooke has a permit to carry a concealed weapon but said he didn’t know it was loaded.

In his suit, Sherbrooke said video footage from inside Sachs’ car was erased. The city’s attorney argues it was accidentally erased while making a copy for the defense.

Fox referred questions Wednesday to the city’s attorneys. Leabo now works in the Otter Tail County Jail.
Sherbrooke also claims officers competed to see who could make the most drunken driving arrests.

In a deposition, Greg Ballard, the city’s former police chief, said Fox competed for drunken driving arrests when he was an officer for the department. Ballard said he told Fox not to talk about the contests over police radios.
Iverson said he’s confident the city and its police officers will be cleared.

“If we get this issue reversed, the case is over,” he said.

What if Pelican Rapids loses its appeal?

“Then we go try the case,” Iverson said.

Sherbrooke’s attorney said it’s unlikely the two sides will settle the case outside a courtroom.

“A case like this is a little more difficult because of the nature of the claims and how far apart everyone is,” Hart said.

Readers can reach Forum reporter Steven P. Wagner at (701) 241-554