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Kushner v. Buhta

United States District Court, D. Minnesota

April 18, 2018

Jordan Kushner, Plaintiff,
v.
Troy Buhta, Ashlee Lange, Kathleen Temple, Kristin Tyra, Eric. W. Kaler, and Linda Lokensgard, Defendants.

          Jordan S. Kushner, Law Office of Jordan S. Kushner, and Peter J. Nickitas, for Plaintiff.

          Timothy Joseph Pramas and Daniel J. Herber, University of Minnesota Office of General Counsel, for Defendants.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON United States District Judge

         This matter is before the Court on Defendants' Motion for Summary Judgment [Doc. No. 115]. For the reasons set forth below, Defendants' Motion is granted.

         I. BACKGROUND

         This suit stems from the arrest of Plaintiff Jordan Kushner (“Kushner”) by University of Minnesota Police Officers Troy Buhta (“Officer Buhta”), Ashlee Lange (“Officer Lange”), and Kathleen Temple (“Officer Temple”) at a lecture at the University of Minnesota Law School (“the law school”) on November 3, 2015. Kushner alleges that these officers-as well as defendants Officer Kristin Tyra (“Officer Tyra”), Eric W. Kaler (“Kaler”), and Linda Lokensgard (“Lokensgard”)-violated his rights under the First, Fourth, and Fourteenth Amendments and committed several torts against him.

         A. The Parties

         Plaintiff Jordan Kushner is a lawyer and an alumnus of the law school. (Second Decl. of Dan Herber in Supp. of Defs.' Mot. for Summ. J. [Doc. No. 119] (“Herber Decl. II”), Ex. E [Doc. No. 119-2] (Kushner Dep., at 39[1]); Decl. of Jordan Kushner in Resp. to Summ. J. Mot. [Doc. No. 130] (“Kushner Decl.”) ¶ 6.)

         Defendant Officers Buhta, Lange, Temple, and Tyra are police officers in the University of Minnesota Police Department (“UMPD”). (See Herber Decl. II, Ex. F [Doc. No. 119-3] (Buhta Dep.), Ex. S [Doc. No. 119-16] (Lange Dep.), Ex. T [Doc. No. 119-17] (Temple Dep.), Ex. U [Doc. No. 119-18] (Tyra Dep.).) All were present at the lecture when Kushner was arrested. (Decl. of Dan Herber in Supp. of Defs.' Mot. for Summ. J. [Doc. No. 117] (“Herber Decl.”), Ex. A [Doc. No. 117-1] (Police Report).)

         Defendant Lokensgard is the facilities manager of the law school. (Herber Decl. II, Ex. G [Doc. No. 119-4] (Lokengsard Dep., at 30, 121).) She was responsible for managing the event at which Kushner was arrested. (See id., Ex. F (Buhta Dep., at 93).) Defendant Kaler is the president of the University of Minnesota. (See Compl. [Doc. No. 1] ¶ 15.)

         B. The Lecture and Protest

          On November 3, 2015, the law school presented a lecture by Moshe Halbertal, a law professor at New York University, entitled “Protecting Civilians: Moral Challenges of Asymmetric Warfare, ” (“Halbertal lecture”). (Kushner Decl., Ex. 1 [Doc. No. 130-1] (Lecture Invitation).)

         The lecture took place in room 25 of the law school building. (Id.) Room 25 is a large classroom, capable of holding at least 150 people, that is surrounded by other classrooms in the law school's lower level. (Herber Decl. II, Ex. E (Kushner Dep., at 37-38).) The lecture was scheduled to begin at 4:00 p.m. on November 3, a Tuesday, and classes were scheduled to meet in other classrooms in the lower level at the same time. (Kushner Decl., Ex. 1 (Lecture Invitation); Herber Decl. II, Ex. G (Lokensgard Dep., at 91).)

         The law school maintains a set of rules of decorum for certain “high profile events.” (Herber Decl. II, Ex. H [Doc. No. 119-5] (Event Procedures, at 1).) A document entitled “Rules of Decorum” includes the following statements:

• In order to avoid distractions and focus audience attention on the proceedings, please do not bring laptops, PDA's, or other electronic devices to the lecture.
• Cellular telephones should be turned to the “OFF” setting during proceedings, or better yet, should not be brought into the room. Even phones on a “vibrate” setting can be disruptive.
• Tape recorders, video cameras and still cameras are prohibited without prior approval.
• The Law School honors the free speech and expression rights of our community members. However, demonstrations are not permitted during proceedings or presentations. Impermissible “demonstrations” may include disruptive speech, interruptions, banners, or signs.
• We ask that audience members not engage in any activity that may be disruptive, impermissible activities may include, but are not limited to, unnecessary conversation, loud whispering, or newspaper or magazine reading.
• In order to protect the security of the audience and presenter(s), the Law School may enlist the assistance of University security or other law enforcement personnel to enforce these rules and, if necessary, remove disruptive individuals from the room.

(Id. at 1-2.) The rules of decorum were posted in two locations for the Halbertal lecture: on a freestanding sign holder at the main entrance to the law school and on one of the doors at the entrance to room 25. (Id., Ex. G (Lokensgard Dep., at 33-35).)

         Before the event, a professor at the law school alerted Lokensgard to social media posts indicating that some were planning to protest the lecture. (Id. at 30.) The protest appears to have been motivated by Professor Halbertal's work with Israeli military forces and the perception that such work legitimized civilian deaths in the Israel-Palestine conflict. (Kushner Decl., Ex. 2 [Doc. No. 130-2] (Anti-War Committee Email Exchange, at 3).) After learning of the planned protest, Lokensgard contacted the UMPD and requested a police presence at the lecture. (Herber Decl. II, Ex. G (Lokensgard Dep., at 30-32).)

         Kushner received an invitation to the Halbertal lecture in the mail. (Kushner Decl., Ex. 1 (Lecture Invitation).) He saved the invitation because he was interested in the subject matter of the lecture. (Herber Decl. II, Ex. E (Kushner Dep., at 39).) He also emailed a scanned copy of the invitation to two pro-Palestine mailing lists, with the purpose to “analyze the speaker” and to “try and figure out what kind of response to have politically, if any.” (Id. at 40-43.) As the date of the lecture approached, Kushner became aware of a plan to protest the lecture, and possibly to disrupt it. (Id. at 49-50.) He sent an email to a person he understood to be organizing the protest, in which he encouraged restraint. (Kushner Decl. ¶ 3; id., Ex. 2 (Anti-War Committee Email Exchange).)

         Kushner decided to attend the lecture. He arrived at the law school a few minutes after it was scheduled to begin. (Herber Decl. II, Ex. E (Kushner Dep., at 59).) He saw that something had been posted at the entrance to room 25, but did not stop to read it because “it looked real long and I was already late for the lecture.” (Id. at 63.) Kushner sat near the back of the classroom, next to some people he recognized and thought “weren't the type that were going to disrupt the lecture.” (Id. at 71.) When Kushner arrived, room 25 was “substantially full, but there was also a good number of empty seats.” (Id. at 73.)

         What happened next was partially captured on video.[2] First, Professor Oren Gross came to the podium to introduce Professor Halbertal. (See Herber Decl., Ex. C (Lecture Recording, Part 1, at 00:06).) Before he began speaking, a man in the audience stood and began to criticize the use of law school funds to pay Professor Halbertal to give the lecture. (Id. at 00:12; id., Ex. B (Kushner Recording 0438, at 00:00-00:31).) Lokensgard approached the man and explained that there would be a question-and-answer period after the lecture and asked him to leave if he could not remain quiet. (Kushner Decl., Ex. 2 (Attendee Recording 4481, at 00:00-00:33).) The man left. (Id.) Professor Gross began to speak, but was immediately interrupted by a woman raising similar criticisms. (Herber Decl., Ex. C (Lecture Recording, Part 1, at 01:30), Ex. B (Kushner Recording 0523, at 00:00-01:10).) Lokensgard also approached this woman and explained that she would have to leave if she could not obey the rules of decorum. The woman continued to speak as she exited, and the protesters in the crowd began to loudly chant: “Free, Free Palestine.” (Herber Decl., Ex. C (Lecture Recording, Part 1, at 02:30-03:00); id., Ex. B (Kushner Recording 0523, at 00:00-01:10); Kushner Decl., Ex. 2 (Attendee Recordings 4483, at 00:00-00:14).)

         Next, Lokensgard came up to the podium and read the Continuum of Action, a set of guidelines for responses to disruption at University events. (Id., Ex. C (Lecture Recording, Part 1, at 03:35-06:55).) The Continuum of Action divides disruptive actions into four levels of severity and authorizes police responses to such disruptions, ranging from requesting that the disrupting individual leave to immediately arresting the individual and evacuating the room. (See Herber Decl. II, Ex. H (Event Procedures, at 3).) For example, the Continuum provides that a Level II action is “[d]isruption by members of the audience that violates Protocol, or disturbs the ability of the participants to continue the meeting, ” and that the appropriate reaction to Level II action is that “[u]pon a signal from the moderator, the offending party will be removed from the room by the Police.” (Id.)

         After Lokensgard finished reading the Continuum of Action, the Dean of the law school came to the podium and admonished the attendees to follow the rules of decorum or leave, stating, “we will ask the police to remove those who are disruptive.” (Id., Ex. C (Lecture Recording, Part 1, at 06:55-08:16.) Protesters began chanting again, but the room quieted in less than a minute and Professor Gross was able to introduce the speaker uninterrupted. (Id. at 08:16-13:20.) Professor Gross noted that the rules of decorum were posted outside the room, and said, “when you entered, you accepted them.” (Id. at 09:30-09:45.) He also asked the audience to switch off any cell phones or “at least put them on silent mode.” (Id. at 09:55-10:02.)

         As soon as Professor Halbertal came to the podium, the protesters resumed interrupting the lecture by reading speeches and chanting. During this time, UMPD officers escorted several protesters out of the room. (Id., Ex. A (Police Report, at 4, 7-8, 10).) The disruptions continued for over ten minutes, causing Professor Halbertal to start his lecture approximately twenty minutes after the event began. (Id., Ex. C (Lecture Recording, Part 1, at 13:20-22:00).) Even after he began speaking, protesters could be heard chanting outside the classroom for at least fifteen minutes. (Id. (Lecture Recording, Part 2, at 00:00-15:10).)

         C. Kushner's Recording and Removal

         From his seat in room 25, Kushner recorded six videos of the protest activity on his cell phone. (Id., Ex. B (Kushner Recordings).) The shortest video is 22 seconds long, and the longest is nearly three minutes long. (Id.) Kushner testified in his deposition that he recorded interactions between the police and protesters “just in case there was something improper in terms of overreaction or people being falsely accused of something.” (Herber Decl. II, Ex. E (Kushner Dep., at 93).) He “felt strongly” that he had the right to record police interactions with citizens. (Id. at 95.) He acknowledges that the University of Minnesota probably would not permit recording of the lecture itself, because it might be the property of the law school, but he maintains that he did not record any part of the lecture. (Id. at 66-67, 95.) Through his membership in the National Lawyers Guild, Kushner has acted as a designated legal observer at protests in the past. (Id. at 68.) Kushner did not attend the Halbertal lecture in order to be a legal observer, but he stated, “I'm always kind of legal observing political events in my mind.” (Id. at 69.)

         Shortly after Lokensgard finished reading the Continuum of Action, Kushner testified that Officer Buhta approached a woman sitting near him, Maryam Zahid, who appeared to be of Middle Eastern descent. (Id. at 87-90; Decl. of Maryam Zahid [Doc. No. 127] (“Zahid Decl.”) ¶¶ 4-6.) Kushner states that Officer Buhta told Ms. Zahid to leave, despite the fact that she had been “sitting quietly.” (Id., Ex. E (Kushner Dep., at 89).) Several attendees of the lecture also stated that Ms. Zahid had been sitting quietly. (Aff. of Erika Zurawski [Doc. No. 126] (“Zurawski Aff.”) ¶ 7; Decl. of Coleen Rowley [Doc. No. 129] (“Rowley Decl.”) ¶ 7; Zahid Decl. ¶ 5.) Suspecting racial profiling, Kushner “turned around and objected to Buhta asking her to leave.” (Id., Ex. E (Kushner Dep., at 89).)

         On one of Kushner's recordings, Kushner can be heard saying that Ms. Zahid had not done anything to disrupt the lecture. (Herber Decl., Ex. B (Kushner Recording 1253, at 00:00-00:15).) Officer Buhta can then be heard stating, “We're just gonna shut it down and arrest everybody, that's a promise.” (Id. at 00:15-00:20.) Kushner responded, “Well that'll be interesting.” (Id.) Then, Buhta stated, “Thank you, sir, for your commentary.” (Id. at 00:20-00:23.) Though Officer Buhta cannot be seen speaking in the recording, he confirmed in deposition that it was his voice. (Herber Decl. II, Ex. F (Buhta Dep., at 186-87).) Kushner testified that Buhta backed away after this exchange, appearing embarrassed. (Id., Ex. E (Kushner Dep., at 93); see also Zahid Decl. ¶ 9.) A few minutes later, Ms. Zahid stood and began reciting a speech to protest the lecture, and she was escorted out by police. (Zahid Decl. ¶ 10.)

         Shortly after Ms. Zahid was escorted out of the classroom, and while Kushner was recording, Lokensgard approached Kushner and said “Please turn your phone off, as you were asked.” (Herber Decl., Ex. B (Kushner Recording 1837, at 00:40).) Lokensgard testified that she approached several people in the room who had their phones out and appeared to be recording, to ask them to comply with the rules of decorum. (Herber Decl. II, Ex. G (Lokensgard Dep., at 58-60).) Kushner told Lokensgard that he was only recording the police behavior, and Lokensgard responded that he still had to turn his phone off “or we'll take it.” (Herber Decl., Ex. B (Kushner Recording 1837, at 00:42-00:50).) At that point, Kushner's recording of the interaction ends. Kushner testified that he turned off the video camera and placed the phone face down on the table in front of him. (Herber Decl. II, Ex. E (Kushner Dep., at 95); see also Kushner Decl. ¶ 8; Zurawski Aff. ¶ 9.)

         Lokensgard testified that she told Kushner that he would have to stop recording the event or leave, and that Kushner responded that he had “every right” to be there. (Herber Decl. II, Ex. G (Lokensgard Dep., at 64-65).) Because he still had his phone out, Lokensgard reached for it, intending to put it in the bag check for the rest of the event, but Kushner put it in his pocket first. (Id. at 65-66, 74-75.) Lokensgard testified, “at that point I had already asked [him] to leave multiple times and [he] said, ‘No.' And so - then I remember asking one of the officers that was in the aisle to say, ‘You know, can you - this gentleman needs to leave. He's not cooperating.'” (Id. at 65.)

         Officer Lange had been nearby during this conversation. (Herber Decl., Ex. A (Police Report, at 4, 7).) Officer Lange stated in the police report that she had been trying to escort a nearby protester out of the room when Kushner “put his phone in my face” and, after Officer Lange told Kushner that he was being disruptive, “started to argue with me about free speech and his rights.” (Id. at 7; accord Herber Decl. II, Ex. S (Lange Dep., at 56).)

         Officer Buhta testified that he saw Kushner and Officer Lange from another part of the room, and that it “[l]ooked like [Kushner] was shouting at her and she was shouting at [Kushner].” (Herber Decl. II, Ex. F (Buhta Dep., at 89); see also Herber Decl., Ex. A (Police Report, at 4).) Officer Buhta stated that he came over and spoke to Lokensgard, who told him that Kushner had been recording and had refused to put his phone away, and that he “needed to leave.” (Herber Decl. II, Ex. F (Buhta Dep., at 92).) Officer Buhta also spoke to Officer Lange, who told him that Kushner had been recording and had interfered with Lange trying to escort a protester out of the event. (Id. at 95.)

         Officer Buhta testified that he then asked Kushner to leave, several times, and that Kushner refused. (Id. at 95-96, 99, 104.) At that time, Officer Buhta testified that he was concerned about the atmosphere in the room, because protesters were being disruptive and other attendees were shouting at the protesters to be quiet, and Officer Buhta worried that a fight might break out in the “mass chaos.” (Id. at 86.) He stated that he was “trying to basically put out fires” because there were “so many other issues going on.” (Id. at 102.) Officer Buhta testified that, after asking Kushner to leave three or four times, (id. at 104, ) he told Kushner that if he did not leave, he would be arrested, (id. at 99.) He testified that Kushner said “then arrest me.” (Id. at 106; see also Herber Decl., Ex. A (Police Report, at 4).)

         Kushner describes these interactions differently. Kushner testified in his deposition that, after Officer Buhta came over and told him to leave, he asked what he had done wrong, but Officer Buhta would not give him an explanation. (Herber Decl. II, Ex. E (Kushner Dep., at 96).) Kushner testified that Officer Buhta said that he would arrest him if he didn't leave, and that Kushner objected and said that Officer Buhta had no right to ask him to leave. (Id. at 96-97.) Kushner stated that Lokensgard then said that he could stay if he gave her his phone, and that she grabbed for the phone. (Id. at 97.) Kushner testified that he picked up the phone first and put it in his pocket, and decided to leave. (Id.) In her deposition, Lokensgard stated that she did not recall telling Kushner that he could stay if he turned over his phone. (Id., Ex. G (Lokensgard Dep., at 75-77).)

         Accounts also differ as to whether Kushner voluntarily got up to leave at this point, or if Officers Buhta and Lange had to physically pick him up out of his seat. Kushner testified that he “started to get up, getting ready to leave at the same time I was being manhandled by - these other officers were grabbing me, physically escorting me at the same time.” (Id. at 97.) He also stated, “I proceeded in my mind to start to stand up and simultaneously I was practically being carried away by the police.” (Id. at 104.) Declarations from several attendees state that Kushner got up willingly. (See Zurawski Aff. ¶ 13 (“Kushner voluntarily stood up from his seat.”); Rowley Decl. ¶ 9 (“As Mr. Kushner stood up from his seat to leave, police officers forcibly led him out.”); Decl. of Dr. Barbara Jean Berg [Doc. No. 128] (“Berg Decl.”) ¶ 10 (“After a very short period of interacting, Kushner stood up from his chair and turned to leave.”).)

         Officer Buhta testified that he and Officer Lange took Kushner's arms and “[p]hysically lifted” him out of the seat, and that Kushner “didn't stand up on [his] own.” (Herber Decl. II, Ex. F (Buhta Dep., at 107); accord Herber Decl., Ex. A (Police Report, at 4).) Lokensgard also testified that Kushner “kind of slumped down in [his] chair and did the jellyfish, as I call it. . . . [T]hey had to physically lift [him] up to leave.” (Herber Decl. II, Ex G (Lokensgard Dep., at 66).) Additionally, Kushner's voice can be heard in the Lecture Recording, off-camera, about two minutes after his recorded interaction with Lokensgard;[3] he is repeatedly saying ...


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