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Zanders v. Swanson

July 20, 2009

RASHARD ZANDERS; LYDIA HOWELL; JILL M. WAITE; COMMUNITIES UNITED AGAINST POLICE BRUTALITY, AN ASSOCIATION, IN BEHALF OF ITS MEMBERS; MICHELLE GROSS; DARRYL ROBINSON; MALCOLM LABON; TRISHA FARKARLUN, PLAINTIFFS-APPELLANTS,
v.
LORI SWANSON, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF MINNESOTA; SUSAN SEGAL IN HER OFFICIAL CAPACITY AS MINNEAPOLIS CITY ATTORNEY, DEFENDANTS-APPELLEES,
MICHAEL O. FREEMAN, IN HIS OFFICIAL CAPACITY AS HENNEPIN COUNTY ATTORNEY, DEFENDANT.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Beam, Circuit Judge

Submitted: June 10, 2009

Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.

The district court*fn1 dismissed Plaintiffs' pre-enforcement challenge to Minnesota state criminal statute section 609.505 based upon lack of standing and, in the case of Trisha Farkarlun, an application of the Younger*fn2 abstention doctrine. Plaintiffs appeal and we affirm.

I. BACKGROUND

Plaintiffs are comprised of various individuals and groups, all of whom allege a fear of prosecution under Minnesota statute section 609.505, which makes it a crime to knowingly make a false report of police misconduct. Plaintiffs are the Communities United Against Police Brutality; one of the founders of that organization, who is frequently contacted by the media for comment on issues concerning allegations of police misconduct; two independent journalists who have written and intend to write articles about civilian allegations of police misconduct; an attorney who litigates cases that involve police misconduct; and three persons who assert that they have been victims of misconduct by Minneapolis police officers, and one of whom that has been charged under section 609.505.

Specifically, section 609.505, subdivision 2 provides:

Reporting police misconduct. (a) Whoever informs, or causes information to be communicated to, a peace officer, whose responsibilities include investigating or reporting police misconduct, that a peace officer, as defined in section 626.84, subdivision 1, paragraph (c), has committed an act of police misconduct, knowing that the information is false, is guilty of a crime and may be sentenced as follows:

(1) up to the maximum provided for a misdemeanor if the false information does not allege a criminal act; or

(2) up to the maximum provided for a gross misdemeanor if the false information alleges a criminal act.

Before the district court, Plaintiffs did not allege that they intend to make knowingly false reports of police misconduct. Nor did Plaintiffs allege or submit evidence that any of the defendants charge and prosecute persons under section 609.505, subdivision 2, for making truthful reports (or not knowingly false reports) of police misconduct. Plaintiffs claimed that potential prosecutions under this Minnesota statute deprive them of their First Amendment, due process, and equal protection rights, in violation of 42 U.S.C. § 1983. Basically, these plaintiffs allege that Minnesota police are corrupt and will fabricate charges of knowingly making false reports of police misconduct in retaliation for making any complaints against police--that the statute, as written, is "too subject to abuse by police." They claim that truthful complaints will be punished by criminal actions, thus "chilling" legitimate reports of police misconduct.

The district court described Plaintiffs' fear as not only "speculative," but "a house of cards that cannot withstand scrutiny." At bottom, the court held Plaintiffs did not allege an intent to engage in the expression prohibited by the statute--that is, knowingly making false reports of police misconduct. Further, the court held there was no evidence that the statute is being enforced against people who are not making knowingly false allegations of police misconduct. As to Plaintiff Farkarlun, the court held that she did have standing to pursue her claim because she was criminally charged under the statute and a favorable decision would certainly redress her injury. But, the court abstained from hearing her claim pursuant to Younger v. Harris, 401 U.S. 37 (1971).

II. DISCUSSION

The district court's dismissal of Plaintiffs' claims for lack of standing is reviewed de novo. Hastings v. Wilson, 516 F.3d 1055, 1058 (8th Cir. 2008). Its application of the Younger abstention doctrine to Farkarlun's claim is reviewed for abuse of ...


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