United States District Court, D. Minnesota
Milstein and Nathan Hansen for Plaintiffs.
Stephanie Angolkar for the “City and County”
Baker and Janine Wetzel Kimble for Defendants Olmsted County
and Nicholas Jacobson.
Brosnahan for Defendants Dakota County and Bryce Schuenke.
REPORT AND RECOMMENDATION
FRANKLIN L. NOEL United States Magistrate Judge.
MATTER came before the undersigned United States Magistrate
Judge on October 23, 2015 on Defendants' three separate
motions for summary judgment (ECF Nos. 147, 153, and 161).
This matter was referred to the undersigned for Report and
Recommendation pursuant to 28 U.S.C. § 636 and Local
Rule 72.1. Order, ECF No. 177. For the reasons that follow,
the Court recommends that Defendants' motions be GRANTED
in part and DENIED in part.
lawsuit challenges the actions of numerous law enforcement
officers and municipalities involved with Minnesota's
Drug Recognition Evaluator (“DRE”) program.
Several individuals involved in the Occupy Minneapolis
protests claim that certain DRE officer trainees provided
them with substantial quantities of illicit drugs and
evaluated them as test subjects for the DRE program. This,
Plaintiffs argue, violated their rights protected by the
First and Fourteenth Amendments of the U.S. Constitution.
Plaintiffs also allege that the municipal entities employing
the offending officers failed to train them properly. All
Defendants have now filed motions for summary judgment.
Drug Recognition Evaluator program
program prepares police officers and other qualified persons
to serve as drug recognition experts. Baker Aff. Ex. 19, ECF
No. 156. A drug recognition expert is an individual who is
specially trained to conduct examinations of drug-impaired
recognition examination typically includes the following:
• a breath test to determine blood alcohol
• preliminary assessments of the subject's speech,
breath, appearance, demeanor, behavior, etc.;
• examinations of the subject's eyes (for nystagmus,
tracking ability, ability to converge, pupil size, and pupil
reaction to light);
• psychophysical evaluations of the subject, based on
divided attention tests;
• examinations of the subject's vital signs (e.g.,
blood pressure, pulse rate, and temperature);
• inspections of the subject's arms, neck, nasal
area, oral cavity, etc. for signs of drug ingestion.
Id. Based on this examination, a trained drug
recognition expert is presumably able to reach
“reasonably accurate conclusions concerning the
category or categories of drugs, or medical conditions,
causing the impairment observed in the subject.”
2012 Minnesota DRE program
at least 2005, the Minnesota State Patrol has facilitated the
DRE program in Minnesota. Munoz Dep. 72:10-17, ECF No. 156,
Ex. 20. The present action arises from actions taken by the
Defendants pursuant to the 2012 DRE program. The 2012 DRE
program consisted of two parts. The first was a two-week
classroom component where the officers were instructed on how
to determine whether an individual was under the influence of
a controlled substance. Id. at 14:20-21, 18:15-22.
Effects from drugs such as marijuana, inhalants, dissociative
anesthetics, stimulants, depressants, and antidepressants
were discussed during the classroom training. Id. at
18:25-21:7. At the end of the in-class instruction, the
officers in the program were required to pass a written test
on the information they had learned. Id. at 21:8-18.
the second part of the DRE program, officers were placed into
two-person groups and were required to conduct between 12 and
15 field examinations. Id. at 21:22-22:1. Richard
Munoz, a former Minnesota State Patrol Sergeant, was the lead
instructor for the 2012 DRE program. Id. at 5:7-23.
According to Munoz, officers were instructed to go to areas
where drug use was prevalent and search for individuals who
appeared to be under the influence. Id. at
25:1-29:7. Officers were told to approach these individuals,
explain the DRE program, and ask if they wanted to volunteer
and help officers learn how to identify the physical side
effects of drugs. Id. at 35:4-10. If the individual
agreed to be evaluated for the program, he or she was brought
to a separate facility for the field examination.
program used a Minnesota Department of Transportation
(“DOT”) building near the Minneapolis-St. Paul
airport for officers to conduct their field examinations.
Id. at 23:9-11. Once at the DOT building, the
officers completed a drug influence evaluation form, where
they recorded their observations of the subject's
physical appearance (e.g., eyes, pupil size, etc.) as well as
his ability to balance with his eyes closed, conduct a walk
and turn test, and stand on one leg. See ECF No. 20,
Ex. 23. Munoz stated that 75% of the subjects also provided
urine samples. Munoz Dep. 41:7-15. Officers had to accurately
identify the correct intoxicant in 75% of the subjects they
examined in order to pass the second part of the program.
Id. at 42:24-43:23. All of the evaluations were
witnessed and supervised by a DRE instructor. Id. at
44:9-12. Once a volunteer's evaluation was complete, many
of the officers provided the individual with food,
cigarettes, or money as remuneration for participating in the
program. Id. at 61:11-62:6.
February 1, 2013, Plaintiffs Michael Bounds,  Forest Olivier,
Adam Luguna, Wia Day, Daniel Bell, and Zachary Lorenz filed a
42 U.S.C. § 1983 action against a multitude of law
enforcement officers and municipalities, alleging that the
officers who participated in the 2012 DRE program were
instructed to target and recruit specific segments of the
Minneapolis population, including the homeless and those who
were involved in the Occupy Minneapolis protests. See
generally Compl., ECF No. 1; see also Am.
Compl., ECF No. 108. Rather than simply recruiting those who
were already impaired, Plaintiffs allege that the DRE
officers were instructed to provide the recruits with illicit
drugs to ingest. ECF No. 108 ¶ 12, 17. After the DRE
officers conducted their field examination, Plaintiffs claim
that they dropped the volunteers off in downtown Minneapolis
in a “high and incoherent state.” Id.
¶ 17. Other Plaintiffs allege that they were given cash
or other consideration (including illegal drugs) for their
participation and/or in exchange for information about the
Occupy Minneapolis movement. Id. ¶ 19. Finally,
Plaintiffs allege that the DRE officer trainees intimated to
the recruits that they would be arrested if they did not
agree to participate in the program. Id. These
actions, Plaintiffs claim, deprived them of their rights
protected by the First and Fourteenth Amendments to the U.S.
Constitution. Id. ¶ 64.
response to the Complaint, all Defendants filed various
motions to dismiss. See ECF Nos. 32, 37, 40, 46, and
63. In an Order dated March 31, 2014, the Court granted in
part and denied in part Defendants' motions, dismissing
many Defendants without prejudice. Mem. Op. & Order, ECF
No. 86. The Court did, however, conclude that some Plaintiffs
alleged sufficient facts to survive a motion to dismiss.
Id. Following this Order, the Court allowed
Plaintiffs to amend their Complaint to remedy the
deficiencies highlighted by the Court. Order, ECF No. 106.
Plaintiffs' Amended Complaint added additional factual
allegations and named the following law enforcement officers,
as well as their corresponding municipal employers (named in
parenthesis), as Defendants: Karl Willers (City of
Hutchinson), Kenneth Willers (Nobles County), Nicholas
Jacobson (Olmsted County), Bryce Schuenke (Dakota County),
John Doe #2 (Pine County), Daniel Lewis (Kanabec County),
Steve Schulz (Kanabec County), and Michael Hadland (Fillmore
County). ECF No. 108. All officers are alleged to
have participated in the 2012 DRE program and are sued in
both their individual and official capacities.
Specific claims by Plaintiffs
Forest Olivier was a member of the Occupy Minneapolis
movement. ECF No. 108 ¶ 35. Olivier claims that he was
approached by DRE officers on three separate occasions on or
around April 27, 2012. Id. On each occasion, he
alleges that he was given a substantial quantity of marijuana
and brought to the DRE testing facility for an evaluation.
Id. ¶¶ 36-42.
Adam Luguna was also a member of the Occupy Minneapolis
movement. Luguna alleges that he was picked up by Defendants
Schuenke and Hadland, taken to the DRE testing facility,
provided with marijuana, and then examined by officers.
Id. ¶ 44. Following the evaluation, Luguna
claims he was released while he was still under the influence
of marijuana. Id.
Wia Day claims that she was picked up by Defendants Lewis and
Schulz, brought to the testing facility, given marijuana, and
then evaluated. Id. ¶ 45.
Daniel Bell and Zachary Lorenz are step-brothers and allege
that they were also picked up by Defendants Lewis and Schulz,
provided with marijuana, and brought to the DRE facility for
an evaluation. Id. ¶ 46. Bell and Lorenz claim
that they were given two or three grams of “extremely
powerful marijuana” to take with them after the
evaluation. Id. ¶ 47.
Minnesota Bureau of Criminal Apprehension investigation
many of the allegations included in Plaintiffs' Amended
Complaint were made public, Minnesota's DRE program was
suspended. Plaintiffs allege that some of the DRE officers
falsely denied the public allegations made by the examinees.
Id. ¶ 49. At least one DRE officer from Chisago
County, however, reported allegations to his supervisor that
certain officers provided illicit drugs to the volunteers.
Id. ¶ 50. Indeed, at least one of the named
Defendants in this case admitted that the only way to get
volunteers for evaluations was by providing the volunteers
with drugs. See, e.g., Karl Willers Dep. 10:3-5, ECF
No. 149-8. The public controversy surrounding the DRE program
prompted an investigation by the Minnesota Bureau of Criminal
Apprehension. Id.; ECF No. 49. Upon completion of
the investigation, however, it was recommended that no
criminal charges be filed against any of the DRE officer
trainees. See ECF No. 49.
present motions for summary judgment
groups of Defendants are represented by separate attorneys.
The groups of Defendants are as follows: (1) Defendants Karl
Willers, City of Hutchinson, Kenneth Willers, Nobles County,
Pine County, Daniel Lewis, Steve Schulz, Kanabec County,
Michael Hadland, and Fillmore County (“City and County
Defendants”); (2) Defendants Nicholas Jacobson and
Olmsted County (“Olmsted County Defendants”); and
(3) Defendants Bryce Schuenke and Dakota County
(“Dakota County Defendants”). Each group of
Defendants has filed its own motion for summary judgment.
See ECF Nos. 147, 153, and 161. Plaintiff opposes
all three motions. See Pls.' Omnibus Opp'n
Mem., ECF No. 166.
STANDARD OF REVIEW
judgment is proper if the evidence, viewed in the light most
favorable to the nonmoving party, demonstrates that there are
no genuine disputes of material fact and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a);
Anderson v. Larson, 327 F.3d 762, 767 (8th Cir.
2003). A disputed fact is material only if it might affect
the outcome of the case under the governing substantive law,
and a dispute is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A party opposing a motion for summary
judgment “may not rest upon the mere allegations or
denials of his pleading, but must set forth specific facts
showing that there is a genuine issue for trial.”
Khoury v. Grp. Health Plan, Inc., 615 F.3d 946, 952
(8th Cir. 2010).
CONCLUSIONS OF LAW
Plaintiffs' First Amendment claims
time of the 2012 DRE program, members of Occupy Minneapolis
were exercising their First Amendment freedoms of speech and
assembly at Peavey Plaza in Minneapolis. Plaintiffs'
Amended Complaint alleges that the Defendant law enforcement
officers specifically targeted members of Occupy Minneapolis
to participate as observation subjects for the DRE program.
ECF No. 108 ¶¶ 14, 15, 64. This targeting,
Plaintiffs' allege, violated their rights protected by
the First Amendment.
citizen's right to exercise First Amendment freedoms
‘without facing retaliation from government officials
is clearly established.'” Baribeau v. City of
Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010) (citing
Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir.
2007)). To prevail on a § 1983 claim for retaliation in
violation of the First Amendment, a plaintiff “must
demonstrate (1) that he engaged in a protected activity; (2)
that the government official took adverse action against him
that would chill a person of ordinary firmness from
continuing in the activity; and (3) that the adverse action
was motivated at least in part by the exercise of the
protected activity.” Santiago v. Blair, 707
F.3d 984, 991 (8th Cir. 2013). In other words, Plaintiffs
must show a causal connection between a defendant's
retaliatory animus and Plaintiffs' subsequent injury.
Osborne v. Grussing, 477 F.3d 1002, 1005 (8th Cir.
2007). “Retaliation need not have been the sole motive,
but it must have been a ‘substantial factor' in
those decisions.” Kilpatrick, 499 F.3d at 767.
Plaintiffs must also show “that the retaliatory motive
was a but-for cause of the harm; that is, that the plaintiff
was ‘singled out' for adverse treatment because of
his exercise of constitutional rights.” Id.
(citing Osborne, 477 F.3d at 1006).
reviewing the entire record, the Court concludes that
Plaintiffs have failed to put forth any evidence that any
Defendant's decision to approach an individual at Peavey
Plaza was motivated by the individual's participation in
the Occupy Minneapolis protests. Plaintiffs cite no evidence
that the reason any Defendant approached a named Plaintiff
was because the Plaintiff was exercising his or her First
Amendment rights. Rather, the evidence in the record simply
indicates that the reason most Defendants approached
individuals in Peavey Plaza was because they knew that there
were a multitude of individuals in that area who were under
the influence of controlled substances. Any allegations by
Plaintiffs to the contrary is merely speculative.
Court observes the following specific evidence in the record
with respect to each individual Defendant regarding his
interactions with individuals at Peavey Plaza:
testified at his deposition that he never participated in the
2012 DRE program. Schulz Dep. 5:16-20, ECF No. 149-6.
testified at his deposition that during his one trip to
Peavey Plaza to drop some volunteers off, another volunteer
got in his car and returned with him to the evaluation
facility. Lewis Dep. 55:25-56:18, ECF No. 149-7. This person
was acquainted with the participants Lewis had dropped off.
Id. at 56:15-18. Nothing in Lewis's deposition
suggests that the reason he chose this particular volunteer
was because he or she was exercising his or her First
and Day are the only Plaintiffs who claim to have interacted
with Lewis. See ECF No. 108 at ¶¶ 37, 45.
Nothing in either Olivier's or Day's deposition
testimony suggests that Lewis targeted them because they were
protesting. See generally Olivier Dep., ECF No.
149-2; Day Dep., ECF No. 149-1.
his deposition, Karl Willers stated that other DRE officers
in the program informed him that good candidates for
evaluation were at the Occupy Minneapolis location. Willers
Dep. 12:4-12, ECF No. 149-8. He stated that “most of
the people that were there, or in that area, were homeless
and the majority of them were drug users, addicted to drugs.
Obviously the type of people that we would like to try to
talk to.” Id. at 13:4-7. Nothing in
Willers's deposition testimony, however, suggests that
the reason he chose to look for volunteers at Peavey Plaza
was because they were protesting or exercising their First
is the only Plaintiff who alleges an interaction with
Willers. See ECF No. 108 at ¶¶ 35-37.
Nothing in Olivier's deposition testimony suggests that
Willers targeted him because he was protesting. See
generally ECF No. 149-2.
deposition, Hadland stated that he was not familiar with the
Minneapolis-St. Paul area, so his DRE program partner,
Defendant Schuenke, chose the locations to search for
evaluation subjects. Hadland Dep. 18:7-15, ECF No. 149-9.
Nothing in Hadland's deposition remotely suggests that he
purposely targeted individuals at Peavey Plaza because they
were participating in the Occupy Minneapolis protests.
and Olivier are the only Plaintiffs who allege that they
interacted with Hadland. Nothing in either Luguna's or
Olivier's deposition suggests that Hadland targeted them
because they were ...