United States District Court, D. Minnesota
Mark R. Miller, MARK R. MILLER, PLLC, 2885 Knox Avenue South, Suite 406, Minneapolis, MN 55408, for plaintiff.
Sarah C. S. McLaren and Brian Scott Carter, Assistant City Attorneys, OFFICE OF THE MINNEAPOLIS CITY ATTORNEY, 350 South Fifth Street, Room 210, Minneapolis, MN 55415, for defendants.
MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
JOHN R. TUNHEIM, District Judge.
Plaintiff John Huge Gilmore ("Gilmore") is an attorney and political blogger in Minnesota. Following an altercation with a group of people in downtown Minneapolis in June 2011, Minneapolis police arrested Gilmore and charged him with disorderly conduct and obstruction of the legal process. Gilmore brings this action against the city of Minneapolis and the officers involved (collectively, "defendants" or "the city"), alleging that the officers violated his First and Fourth Amendment rights by tearing up his poster, and that they violated his Fourth and Fourteenth Amendment rights, and state law, by falsely arresting him. The city brought a motion for summary judgment. Because a material factual dispute remains as to Gilmore's Fourth Amendment destruction-of-property claim, the Court will deny summary judgment as to that claim. Because the officers are entitled to qualified immunity, or official immunity, as to Gilmore's remaining federal and state claims, and because Gilmore has failed to show that any harm he did incur was caused by a failure to discipline on the part of the city, the Court will grant the city's motion for summary judgment as to Gilmore's remaining claims.
I. GILMORE'S DETAINMENT AND ARREST
Gilmore is a prominent political blogger and attorney in Minnesota. He is active on Twitter and other social media and runs a blog called Minnesota Conservatives. His allegations in this case arise out of an incident that occurred in downtown Minneapolis on the evening of June 16, 2011. (Third Am. Compl. ¶ 9, Nov. 20, 2013, Docket No. 20.) Gilmore alleges that he was eating dinner with friends at a restaurant when two Minneapolis police officers, Deitan Dubuc and Joshua Stewart, approached him and asked if he would step outside with them to answer some questions. ( Id. ¶ 10; Decl. of Mark R. Miller ("Miller Decl."), Ex. A (John H. Gilmore Dep.) at 64, 67-69, May 1, 2014, Docket No. 49.) When Gilmore asked the officers what their purpose was, he alleges that they "physically manhandled him out of the booth and dragged him" outside. (Third Am. Compl. ¶ 11; Miller Decl., Ex. A at 68-71.)
The city contends that the officers responded that night to a 911 call. Upon their arrival, following an on-site conversation with an observer, Matthew Glazer, they approached Gilmore in the restaurant. ( See, e.g., Decl. of Joshua Stewart ("Stewart Decl.") ¶¶ 3-5, July 1, 2014, Docket No. 66; Decl. of Deitan Dubuc ("Dubuc Decl.") ¶¶ 3-9, July 1, 2014, Docket No. 67.) They asked to speak with him, Gilmore refused, and they consequently placed a wrist lock on his left wrist to force him to leave. ( See, e.g., Stewart Decl. ¶¶ 7-9; Dubuc Decl. ¶¶ 9-11.) The officers believed Gilmore was intoxicated; Gilmore claims that while he did have three to four glasses of wine that night, he did so over the course of four hours and was consequently not intoxicated. (Dubuc Decl. ¶ 9; Decl. of Brian Carter ("Carter Decl."), Ex. A (John H. Gilmore Dep.) at 120, July 1, 2014, Docket No. 64.)
The officers then handcuffed Gilmore and placed him in the back of a squad car, where he sat for approximately thirty minutes. (Third Am. Compl. ¶ 12; Miller Decl., Ex. A. at 71:15-72:3.) Gilmore claims that he attempted, initially, to talk with the officers, but that they ignored him and gave him no opportunity to explain himself. (Miller Decl., Ex. A at 71:20-73:5.) The officers returned to the car and first told Gilmore he was free to leave if he left the downtown Minneapolis area. (Third Am. Compl. ¶ 13; Miller Decl., Ex. A at 73-74.) However, after communicating with their sergeant, Thomas Ryan, at police headquarters via radio, they then told Gilmore that they would instead be taking him to jail for "disorderly conduct" and "interference with lawful process." (Third Am. Compl. ¶ 14; Miller Decl., Ex. A at 74:20-75:21.)
The city counters that Gilmore refused to give any information to them and was subsequently handcuffed and placed in the squad car while they continued their investigation by interviewing witnesses. (Dubuc Decl. ¶ 12.) The city contends that the officers made no call to their sergeant and that, if they did discuss setting him loose if he left Minneapolis, it was only as a means to gauge whether he should be booked (i.e., whether he continued to pose a threat). (Carter Decl., Ex. B (Joshua Stewart Dep.) at 97-100; Carter Decl., Ex. C (Deitan Dubuc Dep.) at 85-86.) The officers believed booking Gilmore, in lieu of a formal citation, made the most sense because they believed he was intoxicated and would not leave the scene otherwise. (Dubuc Decl. ¶ 25.)
Gilmore was transferred to a transport vehicle and, while inside and awaiting transport to the jail, Gilmore saw an officer rip up and throw away a political sign bearing the name of his website that Gilmore had with him at the restaurant. (Third Am. Compl. ¶ 16; Miller Decl., Ex. A at 78:17-82:18.) Gilmore complained about the sign to Officers Gregory Kosch and Mark LaNasa, who were both in the front of the transport vehicle. (Third Am. Compl. ¶ 17; Miller Decl., Ex. A at 81:23-82:3.) Gilmore alleges that one officer told him he should take up the issue at the police station. (Third Am. Compl. ¶ 17; Miller Decl., Ex. A at 82:2-82:3.) The officers say they have no memory of the sign being destroyed and also note that it is not possible for a prisoner in the back of a police transport vehicle to communicate with officers sitting in the cab of the vehicle. (Carter Decl., Ex. E (Gregory Kosch Dep.) at 33; Carter Decl., Ex. F (Mark Raymond LaNasa Dep.) at 66-68.) In his deposition, Gilmore labeled the value of the sign "de minim[i]s." (Miller Decl., Ex. A at 35:19.)
Gilmore was taken to the Hennepin County jail, where his photo was taken and his personal belongings were inventoried. (Third Am. Compl. ¶ 23.) He was released from jail the next morning on $50 bail, and in March 2012, the City of Minneapolis dropped all charges against him. (Third Am. Compl. ¶¶ 23, 26; Decl. of Mark R. Miller ("Second Miller Decl."), Ex. A (John H. Gilmore Dep.) at 89-90, July 18, 2014, Docket No. 73; Miller Decl., Ex. 25 (Letter to Jamila Boudlali from Assistant City Att'y Sarah Becker) ("I am writing to inform you that I will be dismissing the above-captioned matter against defendant John Gilmore.").)
II. CONFLICTING ACCOUNTS OF THE EVENTS LEADING UP TO DETAINMENT AND ARREST
In his third amended complaint, Gilmore alleges that prior to dinner on June 16, 2011, he had been at a political gathering of "Right Online" with other conservative activists, featuring the now-deceased conservative activist and celebrity, Andrew Breitbart. (Third Am. Compl. ¶ 18; Miller Decl., Ex. A at 33.) When Gilmore was walking from the gathering to the restaurant he passed several women he believed to be Muslims, all of whom were wearing hijab, and asked them "their opinion of Ayaan Hirsi Ali, the world's preeminent human rights activist on behalf of women in Muslim countries." (Third Am. Compl. ¶ 18; Miller Decl., Ex. A at 39-40, 45, 52) Gilmore claims that the women responded that they hated Ali and wished she was dead, so he decided to engage them in conversation - communicating with them about Western, pro-democratic values, but not saying anything offensive or judgmental. (Miller Decl., Ex. A at 45-54.)
Gilmore alleges that shortly after that conversation began, "a flash mob started to form" comprised of political activists who were attending the Netroots Nation conference in Minneapolis. (Third Am. Compl. ¶ 19; Miller Decl., Ex. A, Gilmore Dep., at 50-64.) Gilmore alleges that he was "suddenly surrounded by aggressive, yelling, abusive activists, " and although "[h]e engaged on matters political for a short time, " he "began to fear for his personal safety, " and after several attempts was "able to escape from the threatening mob." (Third Am. Compl. ¶¶ 20-21; Miller Decl., Ex. A at 50-64.) He believed the mob was using tactics of the liberal organizer, Saul Alinsky, to surround him and force him to touch members of the mob, so they could claim assault or battery. (Miller Decl., Ex. A at 54-57.) To escape, and to protect himself, he pretended to make a phone call to Breitbart and to videotape the activists with his Blackberry mobile phone. ( Id. at 57-64.) After he escaped, he then joined his friends for dinner at a nearby restaurant, until Minneapolis police "burst in" and detained him, as described above. (Third Am. Compl. ¶¶ 9-10.)
The city paints a starkly different picture of Gilmore's role in the altercation. The officers first received a 911 call that a suspicious white male wearing all black and sandals, and with gray hair, was yelling at people on the street, shouting racial slurs, and taking photos of the people he was targeting. (Stewart Decl. ¶ 3.) The officers arrived and spoke to Glazer, who told them about the incident, claimed that Gilmore had tried to assault him, and stated that he thought Gilmore would try again to hurt him. ( Id. ¶ 4.) After entering the restaurant and detaining Gilmore in the squad car, the officers interviewed several witnesses. ( Id. ¶ 11.)
First, Elisabeth Geschiere told Stewart that after Gilmore engaged the two women regarding Ms. Ali, they responded simply by saying that while they did not like her, they could "agree to disagree" with Gilmore. ( Id. ¶¶ 12-14.) Gilmore, however, became angry, aggressively walked toward the women, took their photo with his mobile device, asked why they had come to the United States, and declared that "this is America." ( Id. ¶¶ 13-14.) Geschiere was afraid Gilmore would hurt someone at the scene. ( Id. ¶ 14.)
Stewart and Dubuc spoke again with Glazer, who stated that he told Gilmore to walk away and asked Gilmore if knew the difference between assault and battery, to which Gilmore responded, "I have not hit you yet but just wait." ( Id. ¶ 15 (internal quotation marks omitted); Decl. of Matthew Glazer ("Glazer Decl.") ¶ 7, July 1, 2014, Docket No. 68.) Glazer then became "very afraid that Gilmore was going to assault him, " or that Gilmore would assault the women whom he first approached, and consequently called 911. (Stewart Decl. ¶ 15; Glazer Decl. ¶ 7; Dubuc Decl. ¶ 24.)
Dubuc spoke with Boudlali and Hijaz. (Dubuc Decl. ¶ 15.) Hijaz said that she told Gilmore she did not like Ali, but then told him they "would agree to disagree." ( Id. ¶ 16.) Hijaz said Gilmore appeared angry and walked toward her, asking "Why did you come to my country and try to change us? You're in the west here." ( Id. ¶ 17 (internal quotation marks omitted)). Hijaz said she was fearful, almost started crying, and was physically shaking. ( Id. ¶ 18.) Boudlali said she was shaking and "froze" due to Gilmore's aggressive advances. ( Id. ¶ 19 (internal quotation marks omitted)). Hijaz claims Gilmore attempted to approach them multiple times, took photos of them, and yelled that he "could do whatever he wanted because he was in America." ( Id. ¶ 21.)
Gilmore's friend, Paul Carlson, said he could not hear what was being said between Gilmore and the group, because he was across the street, but that Gilmore was eight to ten feet away from the group with his hands in his pockets. (Stewart Decl. ¶ 16.) Following the interviews, the officers had Glazer fill out a citizen's arrest form. (Glazer Decl. ¶ 8; Stewart Decl., Ex. 1 (Certificate and Decl. of Arrest by Private Person).)
III. GILMORE'S CLAIMS
In part due to his notoriety and political activism, and the controversial and disputed events that led up to his detainment, Gilmore's arrest received media coverage in the Twin Cities. Gilmore alleges that the negative publicity that surrounded the arrest initially, which preceded the city's decision to drop the charges, has permanently damaged his reputation. (Second Miller Decl., Ex. A at 113-14, 173-75.) Indeed, Gilmore notes that the officers' actions created a false and disparaging narrative about him in the community that will not ever be corrected, because of the permanence of stories and posts on the internet. (Third Am. Compl. ¶¶ 27-29.)
Gilmore alleges that Officers Dubuc and Stewart,  and Sergeant Ryan, in their individual and official capacities,  and the City of Minneapolis by reason of a policy, custom, or practice, violated his federal constitutional rights and Minnesota law. (Third Am. Compl. ¶¶ 30-40.) In Counts I through III, under 42 U.S.C § 1983, Gilmore alleges violations of his First, Fourth, and Fourteenth Amendment rights, respectively. ( Id. ¶¶ 30-38.) In Count IV, Gilmore alleges that the defendants falsely arrested him in violation of Minnesota law. ( Id. ¶¶ 39-40.) Gilmore seeks a total of $10 million in compensatory and punitive damages, along with attorneys' fees and costs. ( Id. at 16.) The city filed a motion for summary judgment on July 1, 2014. (Defs.' Mot. for Summ. J., July 1, 2014, Docket No. 61.)
I. STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The evidence supporting a summary judgment motion, including the statements or information contained in affidavits or declarations, should be admissible at trial. 10B Fed. Prac. & Proc. Civ. § 2738 (3d ed. 2014). Thus, "inadmissible hearsay evidence" cannot be considered at the summary judgment stage. Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 817 (8th Cir. 2010); see also Jones v. McNeese, 746 F.3d 887, 899 (8th Cir. 2014); Firemen's Fund Ins. Co. v. Thien, 8 F.3d 1307, 1310 (8th Cir. 1993) ("The district court must base its determination regarding the presence or absence of a material issue of factual dispute on evidence that will be admissible at trial.").
Federal Rule of Evidence 802 bars the admission of hearsay. Fed.R.Evid. 802. Rule 801 defines hearsay as a statement, not made "while testifying at the current trial or hearing, " and offered "in evidence to prove the truth of the matter asserted in the statement." Fed.R.Evid. 801(c).
Gilmore contends that the city impermissibly bases its summary judgment motion on inadmissible hearsay. Specifically, Gilmore challenges the declaration of Minneapolis Police Chief Janae Harteau, noting that the city had ample time to depose her and did not; the declaration of Matthew Glazer, for similar reasons; the statements of witnesses Geschiere, Boudlali, Hijaz, and Glazer, as relayed to and retold by Officers Dubuc and Stewart; and the "unverified and un-notarized" citizen's arrest form attached to Officer Stewart's declaration.
A. Use of Declarations
The city has not violated the evidentiary rule simply by using declarations instead of depositions. See Fed.R.Civ.P. 56(c)(4) ("An affidavit or declaration... must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."); Brooks v. Tri-Systems, Inc., 425 F.3d 1109, 1111-12 (8th Cir. 2005) (discussing Rule 56 and noting that both affidavits and deposition testimony can be used at summary judgment, so long as both contain, or are supported by, admissible evidence). As a result, the Court rejects Gilmore's challenge to Minneapolis Police Chief Jane Harteau's declaration, and Glazer's declaration, because both affiants set out facts that would be admissible in evidence and both declarations show that the affiants are competent to testify to the matters stated. Fed.R.Civ.P. 56(c)(4). Indeed, Harteau has first-hand knowledge of the Minneapolis police force and its practices and is competent to testify as to them, and Glazer has first-hand knowledge of what occurred on the night in question and is consequently competent to testify to those events. (Decl. of ...