A man who successfully argued in federal court that Dubuque police found a gun during an illegal search now is suing the city and the officer involved.
Timothy McKenzie, 51, recently filed a lawsuit in U.S. District Court in Cedar Rapids against the city and Officer Kimberly Hoover. He seeks an unspecified amount of damages for alleged violations to rights afforded him by the U.S. and Iowa constitutions.
He also claims the department created an atmosphere in which anyone in the vicinity of a reported firearm incident is under illegal scrutiny by authorities.
“(The) City of Dubuque improperly trains its officers to seize all individuals in the vicinity of a firearms call regardless of whether an individual fits the suspect description,” McKenzie’s attorneys wrote in his lawsuit.
The city has not filed a response to the suit yet. Police Chief Mark Dalsing directed specific questions about the suit to Les Reddick, who is representing the city in this case. Reddick did not return a phone message seeking comment for this story.
According to Iowa criminal court documents, McKenzie was stopped by Hoover at about 8 p.m. July 22, 2018, while he was walking near White and East 21st streets. She was one of several officers in the area investigating a report of a teen who had brandished a gun.
Hoover told McKenzie that she was going to pat him down, and McKenzie, who lived in the 2100 block of White Street at the time, told Hoover that he was carrying a gun.
McKenzie was arrested on Iowa charges of carrying weapons and being a felon in possession of an offensive weapon. Those charges later were dropped in favor of a federal charge of being a felon in possession of a gun.
However, McKenzie, during his federal criminal proceedings and in his lawsuit, argued that he never should have been stopped by Hoover in the first place.
According to McKenzie’s suit, the suspects in the gun incident were a group of teen boys — possibly “middle-school-aged” — who were riding bikes. One caller reported observing a boy passing the gun to a boy in a black T-shirt.
McKenzie was 50 years old at the time and wearing all blue.
Additionally, he cooperated fully with Hoover — a claim that was supported by Hoover’s body-worn camera footage, according to federal court documents — and gave her no reason to conduct a pat-down, McKenzie argued.
That argument was supported by a magistrate judge during McKenzie’s criminal proceedings.
“While (precedent) supports a police officer’s broad latitude in deciding when to frisk suspects, it does not diminish the Fourth Amendment’s reasonableness requirement,” Judge Mark Roberts wrote in an opinion filed in federal court. “An officer’s ability to frisk a subject is only triggered when the suspect is lawfully stopped and the officer reasonably believes the suspect is armed.”
Roberts wrote that McKenzie “was not lawfully stopped because Officer Hoover did not articulate why she reasonably believed he was engaged in criminal activity or armed.”
“Rather, Officer Hoover stopped and patted down (McKenzie) merely because he was present in the vicinity of an alleged gun sighting,” Roberts wrote.
McKenzie’s motion to suppress the evidence gathered from the pat-down was granted, and a U.S. district court judge earlier this year dismissed the criminal charge without prejudice.
Samuel Wooden, one of McKenzie’s attorneys in the civil proceeding, said testimony from Hoover and other officers suggested that anyone found near the scene of an incident allegedly involving a gun would have been patted down by Dubuque officers.
“That, to me, is concerning,” Wooden said.
Wooden also noted that McKenzie spent about four months in jail while his criminal proceedings played out.
In an email to the Telegraph Herald about Police Department policies, Dalsing said officers are cautious when responding to any incident that might involve a gun.
“Gun calls certainly do elevate safety concerns and officers do approach them more cautiously, but officers must still operate under the existing case law in regard to search and seizure,” he wrote.
Dalsing declined to discuss Hoover’s specific actions in relation to patting down McKenzie.
Also representing McKenzie is attorney David O’Brien, who has been involved in at least six other lawsuits against the Dubuque Police Department in recent years. The cases primarily have involved allegations of excessive force by officers.
Four of those cases were settled outside of court, leading to settlements totaling more than $100,000. A fifth suit went to trial, but a jury found in favor of the city.
O’Brien also represents Charles J. Jenaman, 38, who was arrested in Dubuque on charges of public intoxication and interference with official acts in 2017. According to Jenaman’s lawsuit, the arresting officer threw him to the ground, causing severe injuries, including a traumatic brain injury.
Iowa court documents said police performed a “takedown” to gain control of an unruly Jenaman, and that he became unconscious. The city has denied Jenaman’s claims in his lawsuit, and the case is ongoing in U.S. District Court.
“I do these kinds of cases all over the state of Iowa, but I sue the Dubuque Police Department more than any other department in the state of Iowa,” said O’Brien. “And it’s not even close.”