521 F.Supp.3d 833
D. Minn.2021Background:
- Linda Tirado, a freelance journalist, covered the George Floyd protests in Minneapolis; while identifiable as press she was struck in the face by an MPD-fired 40mm foam projectile and is permanently blind in her left eye.
- Tirado alleges multiple other journalists were similarly targeted by MPD during the same protest period (May 26–June 5, 2020), including instances of being shot with less-lethal projectiles, struck with batons, and sprayed with irritants.
- MPD policy restricts foam-bullet use (aim at lower extremities; avoid head/neck absent deadly-force justification); Tirado alleges officers violated these policies.
- Tirado sued under 42 U.S.C. § 1983 against the City of Minneapolis and Chief Arradondo (Monell claims), John Doe officers (individual violations), and Robert Kroll (police-union president) in his individual capacity (civil conspiracy); defendants moved to dismiss Monell and conspiracy claims.
- Tirado alleges the City knew or should have known of the pattern via news coverage, social-media monitoring, and direct outreach but failed to correct MPD conduct; she also alleges Kroll pressured MPD leadership and influenced tactics, providing the basis for a conspiracy claim.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Monell municipal liability (unofficial custom) | Tirado: multiple similar incidents during the protests show a continuing, widespread pattern of targeting journalists. | City: incidents are too few, not sufficiently similar, and limited to a single operation—insufficient to plead a municipal custom. | Denied dismissal — at pleading stage allegations of several similar incidents during the protests are plausibly sufficient to plead a Monell custom. |
| Temporal scope for establishing a custom | Tirado: the concentrated protest period is long enough for notice and to show a custom. | City: custom requires longstanding practice over months/years, not a bounded single operation. | Denied dismissal — court: timeframe need not be years; concentrated incidents with notice can suffice at pleading stage. |
| Deliberate indifference / notice | Tirado: City learned of attacks via media, monitoring, and outreach but took no corrective action, showing deliberate indifference. | City: lacked notice or incidents were too close in time to show deliberate indifference. | Denied dismissal — allegations plausibly show City had notice and capacity to act; deliberate indifference is plausible pre-discovery. |
| § 1983 civil conspiracy (Kroll and City) | Tirado: Kroll’s communications, influence, and MPD conduct support an inference of a meeting of the minds to target journalists; John Does took overt acts causing injury. | Kroll: sued individually, his speech is First Amendment-protected and insufficient to show an agreement; private actor cannot be liable absent willful participation. | Denied dismissal — circumstantial allegations permit an inference of willful participation/meeting of the minds; claim survives to discovery. |
Key Cases Cited
- Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978) (establishes municipal liability under § 1983 for official policy or unofficial custom)
- Ware v. Jackson Cty., 150 F.3d 873 (8th Cir. 1998) (elements for municipal liability based on unofficial custom)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) ( federal pleading standard: plausibility )
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (pleading must contain factual content permitting plausible inference of liability)
- Board of County Comm'rs v. Brown, 520 U.S. 397 (1997) (municipal liability requires that the municipality be the moving force behind the violation)
- Pembaur v. Cincinnati, 475 U.S. 469 (1986) (unwritten customs may arise from consistent practices followed over time)
- Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989) (municipal acquiescence in longstanding practice can establish a custom)
- White v. McKinley, 519 F.3d 806 (8th Cir. 2008) (circumstantial evidence can support inference of a § 1983 conspiracy)
- Bolderson v. City of Wentzville, 840 F.3d 982 (8th Cir.) (a municipality is not liable under § 1983 solely because it employs a tortfeasor)