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Bounds v. Willers

United States District Court, D. Minnesota

January 13, 2016

Michael Bounds et al., Plaintiffs,
v.
Karl Willers et al., Defendants.

          Alan Milstein and Nathan Hansen for Plaintiffs.

          Stephanie Angolkar for the “City and County” Defendants.

          John Baker and Janine Wetzel Kimble for Defendants Olmsted County and Nicholas Jacobson.

          Helen Brosnahan for Defendants Dakota County and Bryce Schuenke.

          REPORT AND RECOMMENDATION

          FRANKLIN L. NOEL United States Magistrate Judge.

         THIS 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.

         I. INTRODUCTION

         This 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.

         II. FACTUAL BACKGROUND

         A. The Drug Recognition Evaluator program

         The DRE 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 drivers. Id.

         A drug recognition examination typically includes the following:

• a breath test to determine blood alcohol concentration;
• 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.” Id.

         B. The 2012 Minnesota DRE program

         Since 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.

         During 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.

         The DRE 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.

         C. The present litigation

         On February 1, 2013, Plaintiffs Michael Bounds, [1] 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.

         In 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).[2] 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.

         D. Specific claims by Plaintiffs

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiffs 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.

         E. Minnesota Bureau of Criminal Apprehension investigation

         After 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.

         F. The present motions for summary judgment

         Various 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.

         II. STANDARD OF REVIEW

         Summary 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).

         III. CONCLUSIONS OF LAW

         A. Plaintiffs' First Amendment claims

         t the 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.

         “A 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).

         After 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.

         The Court observes the following specific evidence in the record with respect to each individual Defendant regarding his interactions with individuals at Peavey Plaza:

         1. Steve Schulz

         Schulz testified at his deposition that he never participated in the 2012 DRE program. Schulz Dep. 5:16-20, ECF No. 149-6.

         2. Daniel Lewis

         Lewis 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 Amendment rights.

         Olivier 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.

         3. Karl Willers

         During 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 Amendment rights.

         Olivier 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.

         4. Michael Hadland

         In his 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.

         Luguna 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 ...


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