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Baribeau v. City of Minneapolis

February 24, 2010


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

Per curiam.


Submitted: June 9, 2009

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

Jessica Baribeau, Jamie Jones, Kate Kibby, Kyle Kibby, Raphi Rechitski, Jake Sternberg, and Christian Utne (collectively, "the plaintiffs") brought suit against the City of Minneapolis and thirteen of its police officers. The plaintiffs alleged that they were seized without probable cause and in retaliation for exercising their First Amendment rights. Sternberg also sued the County of Hennepin and various of its employees, alleging that the confiscation of his prosthetic leg while he was in the county jail violated his rights under the Fourth, Fifth, and Fourteenth Amendments, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Minnesota Human Rights Act ("MHRA"), Minn. Stat. § 363A.01 et seq. The district court granted summary judgment in favor of the City and its officers on the plaintiffs' claims, and in favor of the County and its employees on Sternberg's claims. We affirm in part and reverse and remand in part.


At about 6 p.m. on Saturday, July 22, 2006, the plaintiffs met at the Nicollet Mall light rail station in downtown Minneapolis, while the city was in the midst of hosting a week-long summer festival known as the Aquatennial. The plaintiffs' plan was to protest the "mindless" nature of consumer culture by walking through the downtown area dressed as zombies. Most of the plaintiffs wore white powder and fake blood on their faces and dark makeup around their eyes.

From their meeting place, the plaintiffs proceeded down Nicollet Mall, walking in a stiff, lurching fashion. They carried four bags of sound equipment. One bag contained an iPod, a radio transmitter, an antenna, and a wireless phone handset. The others contained radio receivers, amplifiers, and speakers. Some of the equipment, including wiring, was visible on the outside of the bags. As the plaintiffs "danced" their way down the street, they played music from the iPod, through the radio devices, and over the speakers. They also broadcasted announcements such as "get your brains here" and "[b]rain cleanup in Aisle 5" by speaking into the wireless phone handset. The plaintiffs came within three feet of bystanders, and received "weird" looks from some they passed.

At around 7 p.m., Minneapolis police received word of an anonymous 911 call complaining about a group of "people covered in make up playing loud music from a boombox" on Nicollet Mall. J.A. 219 (capitalization removed). According to the caller, the group's members were "calling themselves zombies and almost touching people." Id. (capitalization removed). Officers James Archer and Chad Martin responded to the call and were the first to arrive on the scene. They found the plaintiffs playing music and dancing as zombies near the intersection of South Seventh Street and Nicollet Mall. Officers Timothy Merkel and Roderic Weber arrived shortly thereafter. When approached by the officers, the plaintiffs explained that they meant their actions as an anticonsumerist commentary. According to Officer Martin, the plaintiffs were "walking around, coming up close to people," and pedestrians were "scooting away from them." The officers informed the plaintiffs that their conduct had garnered a complaint, and asked them to turn down their music and keep their distance from bystanders. After this brief exchange, the officers allowed the plaintiffs to continue on their way.

Merkel and Weber subsequently spoke about the plaintiffs with Sergeant Timothy Hoeppner, who was in charge of patrolling the area for drunk people that evening. Based on information in a police bulletin, Hoeppner expressed concern that the plaintiffs were affiliated with the Juggalos, a violent gang from Washington State known for wearing face paint. Merkel and Weber decided to approach the plaintiffs again, in an effort to identify them.

When Merkel and Weber found them, the plaintiffs were no longer dancing or playing music, but were gathered on a sidewalk near the corner of Sixth Street and Hennepin Avenue. As part of a larger crowd, the plaintiffs had just finished watching an outdoor performance by a high school drumline. According to Weber, a young girl with her father saw the plaintiffs "dressed up in the zombie appearance," and became frightened. Merkel and Weber asked the plaintiffs for identification, but most of them were not carrying identification with them. The officers informed the plaintiffs that they were being taken to the police station to be identified. Sternberg asked whether they were being "detained," and one of the officers responded, "Yes." Sternberg then asked, "What's the charge?" The officer said, "I don't know, let's call it disorderly conduct for now." The officers escorted the plaintiffs to a station several blocks away.

At the station, the plaintiffs were met by numerous officers, including the officer in charge, Sergeant Edward Nelson. Sternberg testified that Nelson acted like "a drill sergeant with new recruits," and said that he didn't "give a g**damn about anybody's constitutional f***ing rights." The plaintiffs were patted down and placed in a holding cell, from which they were removed one at a time for questioning about their identities. In addition, officers searched the plaintiffs' bags. Based on the equipment inside, Nelson became concerned that the bags were dangerous, and requested that they be inspected by Sergeant Daniel Pommerenke, a bomb technician. Pommerenke determined that the bags did not contain explosives. After consulting with other officers, however, Nelson ordered the plaintiffs booked into jail on charges of displaying simulated weapons of mass destruction ("WMD"), a state offense punishable by up to ten years' imprisonment. Minn. Stat. § 609.712, subd. 5(1).

All but one of the plaintiffs were transported to the Hennepin County Adult Detention Center.*fn1 During the booking process, Sternberg refused to reveal his last name. Jail officials noted that Sternberg had metal accessories in his hair, and placed him in a holding cell where he could remove them. They also noted that Sternberg had a prosthetic left leg, from the knee down, that contained metal parts. After discussing his medical condition with Sean Kennedy, the nurse on duty, Sternberg was taken to another room, where his prosthetic leg was confiscated by Becky Novotny, a detention deputy. Kennedy explained to Sternberg that the leg was seized out of concern that it could be used as a weapon. Sternberg agreed to provide his last name in order to finish the booking process and obtain a property receipt for his leg. Sternberg was given a wheelchair and was eventually placed in an ADA-compliant cell.

On the following Monday, after spending two nights in jail, the plaintiffs were released from custody. A sergeant reviewing the plaintiffs' arrests had examined the equipment seized from their bags, and concluded that the equipment did not meet the definition of simulated WMD. At the time of release, the plaintiffs received back all of their seized property, including Sternberg's prosthetic leg. Authorities never filed a formal criminal complaint against any of the plaintiffs.

The plaintiffs filed suit in Minnesota state court against the City of Minneapolis and thirteen of its police officers, including Merkel, Weber, Hoeppner, Nelson, and Pommerenke, in their personal and official capacities. The plaintiffs asserted a right to damages under 42 U.S.C. § 1983 on numerous federal claims. Their complaint included allegations that they were arrested "without any cause to believe that they had committed a crime," in violation of the Fourth Amendment, and that they were seized in retaliation for "exercising their basic and fundamental right to engage in artistic and political expression," in violation of the First Amendment. The plaintiffs also brought several state-law causes of action, including a claim of false imprisonment.

In the same complaint, Sternberg sued the County of Hennepin and various county employees, including Kennedy and Novotny, in their personal and official capacities. Sternberg alleged that the confiscation of his prosthetic leg contravened the prohibition on unreasonable seizures in the Fourth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments. He also claimed that the County and its employees "discriminated against [him] by denying him benefits of services and programs because of his disabilities, and failing to accommodate [his] disabilities," in violation of the ADA and the MHRA.

The City and its police officers removed the case to federal district court, and moved for summary judgment on the plaintiffs' claims. The district court granted the motion. Baribeau v. City of Minneapolis, 578 F. Supp. 2d 1201, 1224 (D. Minn. 2008). The court concluded that the plaintiffs' Fourth Amendment claim failed because "the behavior of Plaintiffs observed by law enforcement could justify a reasonably prudent person in believing that Plaintiffs had committed the crime of disorderly conduct." Id. at 1214. The court determined that even if probable cause to arrest for disorderly conduct did not exist, the officers were entitled to qualified immunity. Although the plaintiffs' equipment did not qualify as simulated WMD, the court reasoned, "it would not have been clear to a reasonable officer that Plaintiffs could not be arrested for [displaying simulated WMD]." Id. at 1216. The court dismissed the plaintiffs' claims of First Amendment retaliation and false imprisonment, on the ground that probable cause existed to arrest the plaintiffs for disorderly conduct. Id. at 1217-18.

The County and its employees also moved for summary judgment, and the district court granted that motion as well. Id. at 1224. The court reasoned that because the confiscation of Sternberg's prosthetic leg was "reasonably related to the legitimate governmental interest in jail security," his rights under the Fourth, Fifth, and Fourteenth Amendments were not violated. Id. at 1223-24. The court also determined that the County and its employees were entitled to judgment as a matter of law under the ADA and the MHRA, because Sternberg failed to establish that "following seizure of his leg, provision of a wheelchair and an ADA-compliant cell was not a reasonable accommodation." Id. at 1222.

The plaintiffs appeal. We review the grant of summary judgment de novo, viewing the facts in the light most favorable to the plaintiffs. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009). Summary judgment is appropriate if there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).


We begin with the claims brought by all of the plaintiffs alleging violations of the United States Constitution and Minnesota law. The district court granted summary judgment in favor of the City and its police officers on these claims, and the plaintiffs appeal only the judgment in favor of the officers in their personal capacities. The doctrine of qualified immunity protects the officers from personal liability under § 1983 "insofar as their conduct does not violate clearly established . . . constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (internal quotation omitted). In addition, under Minnesota law, the doctrine of official immunity shields the officers from personal liability unless they are "guilty of a wilful or malicious wrong." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991).


The plaintiffs first argue that they were arrested in violation of their clearly established Fourth Amendment rights. We agree.

As mentioned above, the doctrine of qualified immunity protects government officials such as police officers from individual liability under § 1983, unless their conduct violated "clearly established . . . constitutional rights of which a reasonable person would have known." Pearson, 129 S.Ct. at 815 (internal quotation omitted). To overcome the defendants' qualified immunity claims, the plaintiffs must show that: "(1) the facts, viewed in the light most favorable to the plaintiff[s], demonstrate the deprivation of a constitutional . . . right; and (2) the right was clearly established at the time of the deprivation." Howard v. Kansas City Police Dep't, 570 F.3d 984, 988 (8th Cir. 2009). The Supreme Court recently made it clear that we are allowed to exercise our "sound discretion" to decide which qualified immunity prong we address first, "in light of the circumstances in the particular case at hand." Pearson, 129 S.Ct. at 818. In this case, we find it most beneficial to first address whether the facts, when considered in the plaintiffs' favor, establish a violation of the plaintiffs' Fourth Amendment rights.

The plaintiffs argue that Merkel and Weber violated their Fourth Amendment rights because Merkel and Weber had no probable cause to arrest the plaintiffs for misdemeanor disorderly conduct. In Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001), the Supreme Court held that "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." "Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Devenpeck v. Alford, 543 U.S. 146, 152 (2004). In this case, the plaintiffs were arrested when Merkel and Weber decided to take them to the police station. See Dunaway v. New York, 442 U.S. 200, 212-13 (1979). We thus examine whether probable cause to arrest the plaintiffs existed at that time.

"[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232 (1983). "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt." Brinegar v. United States, 338 U.S. 160, 175 (1949) (internal quotation omitted). A "reasonable ground for belief" means "more than bare suspicion," but "less than evidence which would justify condemnation or conviction." Id. (internal quotations omitted). "Probable cause exists where the facts and circumstances within . . . the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Id. at 175-76 (internal quotation and brackets omitted).

We conclude that the arresting officers, Merkel and Weber, did not have probable cause to arrest the plaintiffs for committing misdemeanor disorderly conduct. Minnesota's disorderly conduct statute, in relevant part, provides:

Whoever does any of the following in a public or private place, . . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others . . . , is guilty of disorderly conduct, which is a misdemeanor:

(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Minn. Stat. § 609.72, subd. 1.

The plaintiffs assert that there was no probable cause for their arrest because Minnesota's disorderly conduct statute is subject to a narrowing construction which excludes their conduct. The interpretation of the disorderly conduct statute is a question of Minnesota state law. When interpreting Minnesota's statutes, we are bound by the decisions of the Minnesota Supreme Court. Hope v. Klabal, 457 F.3d 784, 790 (8th Cir. 2006). If the Minnesota Supreme Court has not decided an issue, we must predict how that court would decide the issue. In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 911 (8th Cir. 2004). In making such a prediction, we may consider relevant state precedent and analogous decisions. Id. Decisions from the Minnesota Court of Appeals are "particularly relevant" and we must follow such decisions when they are the best evidence of Minnesota law. Id. at 912.

To narrowly interpret the disorderly conduct statute, the plaintiffs rely on In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978). In that case, a teenaged girl was arrested for disorderly conduct after saying "f*** you pigs" to police officers. Id. at 415. She subsequently challenged the disorderly conduct statute for vagueness and overbreadth under the First and Fourteenth Amendments. Id. at 416. The Minnesota Supreme Court concluded that absent a narrowing construction, the statute's prohibition on "offensive, obscene, or abusive language" tending reasonably to "arouse alarm, anger, or resentment in others" violated the First Amendment. Id. at 418-19. Thus, to preserve the constitutionality of the statute, the court construed that prohibition to extend only to "fighting words"--words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. at 419(quotation omitted).

The plaintiffs contend that the S.L.J. narrowing construction applies to expressive conduct as well as verbal speech. Specifically, they argue that where, as here, the conduct at issue is expressive in nature, it does not fall within the scope of the statute unless, like "fighting words," it tends to provoke retaliatory violence or incite imminent lawless action. To address this argument, we first note that Minnesota courts have "closely scrutinized" charges brought under this particular disorderly conduct statute due to First Amendment concerns. In re Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn. Ct. App. 1997) (quotation omitted).

Moreover, while the S.L.J. court did not specifically address whether the narrowing construction applies to expressive conduct, the Minnesota Supreme Court has duly recognized that "First Amendment protection is not limited to the written or spoken word; it extends to some expressive activity, because the activity by itself may be communicative." State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998). An actor's conduct is sufficiently expressive to merit First Amendment protection if the actor had "'[a]n intent to convey a particularized message . . . and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.'" Id. at 419-20 (first alteration in original) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam)). "'[A] narrow, succinctly articulable message is not a condition of constitutional protection.'" Robb v. Hungerbeeler, 370 F.3d 735, 744 (8th Cir. 2004) (alteration in original) (quoting Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 569 (1995)). That is not to say that all communicative conduct is protected. Conduct cannot be labeled "speech" whenever a person intends to express an idea. Machholz, 574 N.W.2d at 420 (citing United States v. O'Brien, 391 U.S. 367, 376 (1968)). Indeed, when "'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.'" Machholz, 574 N.W.2d at 420 (quoting O'Brien, 391 U.S. at 376)).

In Machholz, the Minnesota Supreme Court applied these principles to invalidate a Minnesota harassment statute both on its face and as applied. Id. at 417. There, the defendant mounted his horse in downtown Rochester, Minnesota, and rode through a group of people gathered to celebrate National Coming Out Day--an annual celebration for homosexuals, their families, and their friends. Id. at 417-18. As he made approximately four passes through the crowd on his horse, the defendant shouted: "You're giving us AIDS!"; "You're spreading your filth!"; "There are no homosexuals in heaven!"; and "You're corrupting our children!" Id. at 418. He also swung a rope and knocked down a sign advertising the event. Id. A number of onlookers indicated that, due to the defendant's actions, they felt "threatened and frightened." Id. The defendant was subsequently arrested and charged with felony harassment. Id. The Minnesota harassment statute criminalized harassing conduct--intentional conduct that "(1) would cause a reasonable person under the circumstances to feel oppressed, persecuted, or intimidated; and (2) causes this reaction on the part of the victim." Id.

The Minnesota Supreme Court first held that the harassment statute was facially overbroad under the First Amendment. The court noted that "[t]he broad reach of the statutory language [was] not limited to nonexpressive conduct," and thus impermissibly encompassed protected "expressive activity." Id. at 420. The State argued that the statute was still valid because it could be construed narrowly to only apply to fighting words. Id. However, the court determined the statute's language was too broad to support such a narrowing construction. Id. The court explained that the statute's broad language would impermissibly criminalize expressive conduct the Supreme Court has afforded First Amendment protection, such as cross burning or displaying swastikas during a march in a community where Holocaust survivors reside. Id.; see R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Nat'l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43 (1977) (per curiam). Moreover, the ...

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