A civil lawsuit against a Rochester police officer alleging he unlawfully entered a Rochester couple’s property and then joked that the Black homeowner had "not been shot yet" can proceed, a U.S. District Court judge ruled earlier this week.

U.S. District Court Judge Donovan W. Frank denied Rochester police officer Samuel Higgins’ motion to dismiss the case. Donovan ruled there were sufficient facts to state a plausible claim of a violation of the Fourth Amendment rights of Rochester residents Michael Vernio and Kelli Gendron. The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

The Rochester couple filed a civil suit in U.S. District Court in December 2019, alleging that Higgins violated their rights when the officer walked into the couple’s property without knocking four months earlier, in August.

On Aug. 19, 2019, Higgins was called to investigate a report of a barking dog. Higgins began his search by walking onto the property of one of the neighbors of Gendron and Vernio and, finding nothing there, went to the couple's home.

"He walked past the front door of their house. He then walked up the driveway, past a side door to the house, and around a truck parked near the back of the driveway before he saw Ms. Gendron sitting near the garage," the civil suit alleges.

Higgins spoke with Gendron for a short period of time before Vernio joined the conversation and asked whether Rochester police officers "make a habit of just walking on private property," the suit states. Higgins responded that he was investigating the violation of a law, and that he saw Gendron sitting in the back.

The couple alleges in their lawsuit that the way Higgins entered their property was not an authorized or warranted search and that the officer made no reasonable attempt to contact the couple by less intrusive means before entering their property.

Jason Hiveley, one of the attorneys representing Higgins, wrote in a statement that they believe once discovery is complete in the case, it will be dismissed in its entirety. The attorneys representing Vernio and Gendron, Joshua A. Newville and Samuel Kramer, did not respond to a request for comment.

In footage of the incident taken from the officer’s body camera, Vernio is seen expressing frustration at his neighbor’s repeated calls to police about the barking dog rather than speaking with him about it.

Higgins speculated that this was because Mr. Vernio is “a very loud, boisterous Black man,” court documents state. When Vernio responded that Higgins was a “white man with a gun, and I’m afraid,” the officer responded “and you haven’t been shot yet.” Vernio gestured to Gendron and stated “I’ve got a witness, that’s why” and then laughed and asked if Higgins had turned off his body camera.

Hiveley, Higgins attorney, wrote in the statement that the comments were “not consistent with the Rochester Police Department’s core values and are inappropriate.” The department conducted an investigation and concluded the officer violated its professional code of conduct policy. Higgins was disciplined and given a written reprimand, Hiveley said.

Judge Frank addressed the comments in his ruling, citing the deaths of 18-year-old Michael Brown in 2014 and Philando Castile in 2016.

“Even before such high-profile shootings by police of African Americans, a comment — even joking — that infers that an African American man is fortunate to not have been shot ‘yet’ by a police officer would be problematic,” Donovan wrote. "It is this history of law enforcement’s violent relationship with African Americans that makes it clear that allusions to the use of force by a police officer is no joking matter.”

“Alone, this comment is a troubling statement that reflects a lack of respect for the value of Black lives,” Frank wrote. “When such a comment is added to an alleged Constitutional violation, the comment is even more problematic.”