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911 calls trigger statute and suits

“Justine [Damond] did not have to die …

This should not have happened.”

Ex-Minneapolis Police Chief Janee Harteau

(July 20, 2017)

The slaying in mid-July of south Minneapolis resident Justine Damond by a city police officer after she summoned 911 assistance has triggered an international firestorm.

Issues ranging from police recruitment to how emergency calls are handled have arisen and are likely to be part of the public debate for quite a while.

The debacle reflects how the 911 call system has been a source of a statute and suits in Minnesota.

Data disclosure

The 911 call system, dating back to its inception in the late 1960s, antedates the Minnesota Government Data Practices Act by seven years.  But by the time of its widespread adoption in this county in the 1980s and worldwide utilization in the 1990s, it had found its way into the statute.

Under Minn. Stat. § 13.82, subd. 4, the Comprehensive Law Enforcement Data provision, audio recordings of 911 calls are deemed private data on individuals, accessible only to the callers.  But any written transcripts of the calls constitute public data and must be disclosed upon payment of a small fee for preparing it, often nominal or nonexistent, unless it would infringe on designated types of confidentiality.

The audio also may be made accessible, regardless of confidentiality, to law enforcement agencies for investigative reasons and to public health and emergency medical treatment personnel for training purposes.

Criminal confrontations

Apart from the statute, 911 calls occasionally find their way into criminal litigation.

The recurring issue of admissibility at trial of statements made in a 911 call was resolved in favor of admissibility in State v. Wright, 2005 WL 1903860 (Minn. Aug. 11, 2005). A woman and her sister called 911 to report that the woman’s boyfriend was threatening her with a gun; they described the incident more fully to investigating police officers who came to the scene. The statements were used at trial in Hennepin County District Court to convict the defendant of two counts of felony assault and illegal possession of a firearm.

Neither of the women appeared at trial. The woman who was threatened did not testify because she feared for her safety; her sister also declined to do so. Affirming the conviction, the Supreme Court held that use of the 911 call and following statements did not violate the Confrontation Clause in the Sixth Amendment under Crawford v. Washington, 541 U.S. 36 (2004), which bans hearsay testimonial statements in criminal cases.

Reviewing the issue on a case-by-case basis, the court concluded that the 911 call was admissible because it was nontestimonial, a position taken by the majority of jurisdictions, although a few courts reached the opposite conclusion.

Eschewing a categorical rule, the court looked to the particular circumstances of the call. The highly emotional and frightened demeanor of the victims, the temporal proximity to the incident, and the substance of their remarks illustrated that they were non-testimonial and thus, admissible under Crawford.

Addressing the “more difficult Crawford question,” the court also upheld the comments made during the on-scene field investigation. While the case law has shown little consensus on the issue, these statements were admissible in the case based on an eight-factor test:  whether the declarant was a victim or observer, the declarant’s purpose, who initiated the contact, the location of the interview, the declarant’s emotional state, the formality and structure of the interview, the officer’s purpose and the manner of recordation of the statement.

The balance of these considerations weighed in favor of admissibility without defining the “exact parameters” of testimonial hearsay that is prohibited by Crawford, an issue best suited for later determination by the high court. In another case, State v. Warsame, 701 N.W.2d 305 (Minn. Ct. App. Aug. 9, 2005), statements by a victim describing her assault to a police officer who was examining and treating her injuries were deemed admissible under Crawford.

A woman, after calling 911, told a responding officer how she was “beat up” by her boyfriend as the officer was assessing her “fresh” facial injuries and assisting her.

A Hennepin County District Court judge deemed most of the description of the event stricken under Crawford because it was testimonial. But in a pretrial appeal, the Court of Appeals reversed.

The trial court judge erred in viewing the remarks as testimonial under Crawford, simply because they were given in response to some questioning by the officer, who was flagged down by the victim as he was responding to a 911 call. He did not know that she was the caller and was unaware of the nature of the incident, identity of the assailant, or the medical condition of the woman when he questioned her as he examined her injuries.

Since there was no evidence … that the purpose of the [police] questioning was to obtain evidence that could be used at trial, the statements were not impermissibly testimonial in nature. A standard used by some other courts in which virtually every statement implicating a person in a crime … [is] testimonial and thus, inadmissible, is unacceptable. Having determined that the statements may be admissible as a matter of constitutional law, the case was remanded to decide if they were admissible under Minnesota evidentiary rules as excited utterances.

Civil cases

The nuances of a 911 call also were addressed in connection with a pair of civil cases in Morris v. North Memorial Health Care, 2005 WL 1950146 (Minn. Ct. App. 2005) (unpublished).

A caller to the emergency number reported chest pains. She was taken to a hospital for treatment, but when she left the facility she fell down outside, which precipitated another 911 call from an onlooker. The woman was apprehended by a police officer while walking on a highway and returned to the hospital, which later released her without further treatment. She sued the police officer, the city and the hospital for various tort claims, including assault, battery and false imprisonment.

The hospital was dismissed and the claims against the police officer and municipality thrown out on summary judgment by a Hennepin County District Court judge.

The Court of Appeals affirmed. The officer was entitled to official immunity, a doctrine that is regularly applied to the judgment required of police officers in discharging their duties. The officer exercised discretion in deciding how to handle the woman on the road, which invoked the immunity doctrine.

Because the officer was immune, his city was protected from liability under the principle of vicarious ethical immunity.

Another 911 nuance was addressed in In re Application of Hildebrandt, 701 N.W.2d 293 (Minn. Ct. App. 2005), in which a jail dispatcher was deemed entitled to work-related disability benefits for stress resulting from a 911 call. After handling a stressful emergency call, the dispatcher resigned and sought disability benefits under Minn. Stat. sec. 363E.06, subd. 1, which provides disability and retirement benefits for public sector employees.

The Court of Appeals reversed a decision of the Public Employees Retirement Association  disallowing disability benefits because her affliction did not arise out of hazardous duties. The court determined the injuries need not arise out of unruly hazardous activities to be eligible for disability benefits. The statute establishing the disability fund covers afflictions due to any act or duty of a public sector employee. The plain meaning of that term entitled the dispatcher to benefits regardless of the cause of the disability. There was sufficient medical evidence to warrant a determination that her afflictions occurred due to the emergency call, which was disconnected by a computer malfunction, and was a direct result of her “act of duty.”

The 911 program has responded to many crises in Minnesota and elsewhere over the years. As these four cases and the tragic incident in south Minneapolis reflect, the system to manage crisis may promote them as well.

911 call transcripts not available if:

  • Would disclose identity of undercover officers.
  • Would reflect identity of law enforcement informant.
  • Would reveal criminal sex victim.
  • Would indicate identity of crime victim of witness who requests anonymity.
  • Call is for mental health emergency.
  • May threaten personal safety or property.

This article was originally published in Minnesota Lawyer