Jеssica Baribeau; Jamie Jones; Kate Kibby, on her own behalf and as guardian for her minor brother Kyle Kibby; Raphi Rechitsky; Jake Sternberg; Christian Utne, Appellants, v. City of Minneapolis; Jane Harteau, Inspector; Sgt. Tim Hoeppner; Sgt. E.T. Nelson; Sgt. John Billington; Sgt. D. Pommerenke; Sgt. Erica Christensen; Tim Merkel, Officer; Roderic Weber, Officer; Sherry Appledorn, Officer; Jeanine Brudenell, Officer; Robert Greer, Officer; Jane Roe, Officer (whose true name is unknown); Jane Doe, Officer (whose true name is unknown); County of Hennepin; Sean Kennedy; Becky Novotny; Sam Smith (whose true name is unknown); Mary Jones, Officer (whose true name is unknown), Appellees.
No. 08-3165
United States Court of Appeals FOR THE EIGHTH CIRCUIT
Submitted: June 9, 2009 Filed: February 24, 2010
[PUBLISHED] Appeal from the United States District Court for the District of Minnesota.
PER CURIAM.
Jessica Baribeau, Jamie Jones, Kate Kibby, Kyle Kibby, Raphi Rechitski, Jake Sternberg, and Christian Utne (collectively, “the plaintiffs“) brought suit against the City of Minneapolis and thirteen of its police officers. The plaintiffs alleged that they were seized without probable cause and in retaliation for exercising their First Amendment rights. Sternberg also sued the County of Hennepin and various of its employees, alleging that the confiscation of his prosthetic leg while he was in the county jail violated his rights under the Fourth, Fifth, and Fourteenth Amendments, the Americans with Disabilities Act (“ADA“),
I.
At about 6 p.m. on Saturday, July 22, 2006, the plaintiffs met at the Nicollet Mall light rail station in downtown Minneapolis, while the city was in the midst of hosting a week-long summer festival known as the Aquatennial. The plaintiffs’ plan was to protest the “mindless” nature of consumer culture by walking through the downtown area dressed as zombies. Most of the plaintiffs wore white powder and fake blood on their faces and dark makeup around their eyes.
From their meeting place, the plaintiffs proceeded down Nicollet Mall, walking in a stiff, lurching fashion. They carried four bags of sound equipment. One bag contained an iPod, a radio transmitter, an antenna, and a wireless phone handset. The others contained radio receivers, amplifiers, and speakers. Some of the equipment,
At around 7 p.m., Minneapolis police received word of an anonymous 911 call complaining about а group of “people covered in make up playing loud music from a boombox” on Nicollet Mall. J.A. 219 (capitalization removed). According to the caller, the group‘s members were “calling themselves zombies and almost touching people.” Id. (capitalization removed). Officers James Archer and Chad Martin responded to the call and were the first to arrive on the scene. They found the plaintiffs playing music and dancing as zombies near the intersection of South Seventh Street and Nicollet Mall. Officers Timothy Merkel and Roderic Weber arrived shortly thereafter. When approached by the officers, the plaintiffs explained that they meant their actions as an anticonsumerist commentary. According to Officer Martin, the plaintiffs were “walking around, coming up close to people,” and pedestrians were “scooting away from them.” The officers informed the plaintiffs that their conduct had garnered a complaint, and asked them to turn down their music and keep their distance from bystanders. After this brief exchange, the officers allowed the plaintiffs to continue on their way.
Merkel and Weber subsequently spoke about the plaintiffs with Sergeant Timothy Hoeppner, who was in charge of patrolling the area for drunk people that evening. Based on information in a police bulletin, Hоeppner expressed concern that the plaintiffs were affiliated with the Juggalos, a violent gang from Washington State known for wearing face paint. Merkel and Weber decided to approach the plaintiffs again, in an effort to identify them.
When Merkel and Weber found them, the plaintiffs were no longer dancing or playing music, but were gathered on a sidewalk near the corner of Sixth Street and Hennepin Avenue. As part of a larger crowd, the plaintiffs had just finished watching an outdoor performance by a high school drumline. According to Weber, a young girl with her father saw the plaintiffs “dressed up in the zombie appearance,” and became frightened. Merkel and Weber asked the plaintiffs for identification, but most of them were not carrying identification with them. The officers informed the plaintiffs that they were being taken to the police station to be identified. Sternberg asked whether they were being “detained,” and one of the officers responded, “Yes.” Sternberg then asked, “What‘s the charge?” The officer said, “I don‘t know, let‘s call it disorderly conduct for now.” The officers escorted the plaintiffs to a station several blocks away.
At the station, the plaintiffs were met by numerous officers, including the officer in charge, Sergeant Edward Nelson. Sternberg testified that Nelson acted like “a drill sergeant with new recruits,” and said that he didn‘t “give a g**damn about anybody‘s constitutional f***ing rights.” The plaintiffs were patted down and placed in a holding cell, from which they were removed one at a time for questioning about their identities. In addition, officers searched the plaintiffs’ bags. Based on the equipment inside, Nelson became concerned that the bags were dangerous, and requested that they be inspected by Sergeant Daniel Pommerenke, a bomb technician. Pommerenke determined that the bags did not contain explosives. After consulting with other officers, however, Nelson ordered the plaintiffs booked into jail on charges of displaying simulated weapons of mass destruction (“WMD“), a state offense punishable by up to ten years’ imprisonment.
All but one of the plaintiffs were transported to the Hennepin County Adult Detention Center.1 During the booking process, Sternberg refused to reveal his last
On the following Monday, after spending two nights in jail, the plaintiffs were released from custody. A sergeant reviewing the plaintiffs’ arrests had examined the equipment seized from their bags, and concluded that the equipment did not meet the definition of simulated WMD. At the time of release, the plaintiffs received back all of their seized property, including Sternberg‘s prosthetic leg. Authorities never filed a formal criminal complaint against any of the plaintiffs.
The plaintiffs filed suit in Minnesota state court against the City of Minneapolis and thirteen of its police officers, including Merkel, Weber, Hoeppner, Nelson, and Pommerenke, in their personal and official capacities. The plaintiffs asserted a right to damages under
In the same complaint, Sternberg sued the County of Hennepin and various county employees, including Kennedy and Novotny, in their personal and official capacities. Sternberg alleged that the confiscation of his prosthetic leg contravened the prohibition on unreasonable seizures in the Fourth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments. He also claimed that the County and its employees “discriminated against [him] by denying him benefits of services and programs because of his disabilities, and failing to accommodate [his] disabilities,” in violation of the ADA and the MHRA.
The City and its police officers removed the case to federal district court, and moved for summary judgment on the plaintiffs’ claims. The district court granted the motion. Baribeau v. City of Minneapolis, 578 F. Supp. 2d 1201, 1224 (D. Minn. 2008). The court concluded that the plaintiffs’ Fourth Amendment claim failed because “the behavior of Plaintiffs observed by law enforcement could justify a reasonably prudent person in believing that Plaintiffs had committed the crime of disorderly conduct.” Id. at 1214. The court determined that even if probable cause to arrest for disorderly conduct did not exist, the officers were entitled to qualified immunity. Although the plaintiffs’ equipment did not qualify as simulated WMD, the court reasoned, “it would not have been clear to a reasonable officer that Plaintiffs could not be arrested for [displaying simulated WMD].” Id. at 1216. The court dismissed the plaintiffs’ claims of First Amendment retaliation and false imprisonment, on the ground that probable cause existed to arrest the plaintiffs for disorderly conduct. Id. at 1217-18.
The County and its employees also moved for summary judgment, and the district court granted that motion as well. Id. at 1224. The court reasoned that because the confiscation of Sternberg‘s prosthetic leg was “reasonably related to the legitimate governmental interest in jail security,” his rights under the Fourth, Fifth, and Fourteenth Amendments were not violated. Id. at 1223-24. The court also determined that the County and its employees were entitled to judgment as a matter
The plaintiffs appeal. We review the grant of summary judgment de novo, viewing the facts in the light most favorable to the plaintiffs. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir. 2009). Summary judgment is appropriate if there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law.
II.
We begin with the claims brought by all of the plaintiffs alleging violations of the United States Constitution and Minnesota law. The district court granted summary judgment in favor of the City and its police officers on these claims, and the plaintiffs appeal only the judgment in favor of the officers in their personal capacities. The doctrine of qualified immunity protects the officers from personal liability under
A.
The plaintiffs first argue that they were arrested in violation of their clearly established Fourth Amendment rights. We agree.
As mentioned above, the doctrine of qualified immunity protects government officials such as police officers from individual liability under
The plaintiffs argue that Merkel and Weber violated their Fourth Amendment rights because Merkel and Weber had no probable cause to arrest the plaintiffs for misdemeanor disorderly conduct. In Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001), the Supreme Court held that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). In this case, the plaintiffs were arrested when Merkel and Weber decided to take them to the police station. See Dunaway v. New York, 442 U.S. 200, 212-13 (1979). We thus examine whether probable cause to arrest the plaintiffs existed at that time.
“[P]robable cause is a fluid concept–turning on the assessment of probabilities in particular factual contexts–not readily, or even usefully, reduced to a neat set of
We conclude that the arresting officers, Merkel and Weber, did not have probable cause to arrest the plaintiffs for committing misdemeanor disorderly conduct. Minnesota‘s disorderly conduct statute, in relevant part, provides:
Whoever does any of the following in a public or private place, . . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others . . . , is guilty of disorderly conduct, which is a misdemeanor:
. . . .
(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
The plaintiffs assert that there was no probable cause for their arrest because Minnesota‘s disorderly conduct statute is subject to a narrowing construction which excludes their conduct. The interpretation of the disorderly conduct statute is a question of Minnesota state law. When interpreting Minnesota‘s statutes, we are bound by the decisions of the Minnesota Supreme Court. Hope v. Klabal, 457 F.3d 784, 790 (8th Cir. 2006). If the Minnesota Supreme Court has not decided an issue,
To narrowly interpret the disorderly conduct statute, the plaintiffs rely on In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978). In that case, a teenaged girl was arrested for disorderly conduct after saying “f*** you pigs” to police officers. Id. at 415. She subsequently challenged the disorderly conduct statute for vagueness and overbreadth under the First and Fourteenth Amendments. Id. at 416. The Minnesota Supreme Court concluded that absent a narrowing construction, the statute‘s prohibition on “offensive, obscene, or abusive language” tending reasonably to “arouse alarm, anger, or resentment in others” violated the First Amendment. Id. at 418-19. Thus, to preserve the constitutionality of the statute, the court construed that prohibition to extend only to “fighting words“–words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 419 (quotation omitted).
The plaintiffs contend that the S.L.J. narrowing construction applies to expressive conduct as well as verbal speech. Specifically, they argue that where, as here, the conduct at issue is expressive in nature, it does not fall within the scope of the statute unless, like “fighting words,” it tends to provoke retaliatory violence or incite imminent lawless action. To address this argument, we first note that Minnesota courts have “closely scrutinized” charges brought under this particular disorderly conduct statute due to First Amendment concerns. In re Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn. Ct. App. 1997) (quotation omitted).
Moreover, while the S.L.J. court did not specifically address whether the narrowing construction applies to expressive conduct, the Minnesota Supreme Court has duly recognized that “First Amendment protection is not limited to the written or spoken word; it extends to some expressive activity, because the activity by itself may be communicative.” State v. Machholz, 574 N.W.2d 415, 419 (Minn. 1998). An actor‘s conduct is sufficiently expressive to merit First Amendment protection if the actor had “‘[a]n intent to convey a particularized message . . . and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.‘” Id. at 419-20 (first alteration in original) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam)). “‘[A] narrow, succinctly articulable message is not a condition of constitutional protection.‘” Robb v. Hungerbeeler, 370 F.3d 735, 744 (8th Cir. 2004) (alteration in original) (quoting Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557, 569 (1995)). That is not to say that all communicative conduct is protected. Conduct cannot be labeled “speech” whenever a person intends to express an idea. Machholz, 574 N.W.2d at 420 (citing United States v. O‘Brien, 391 U.S. 367, 376 (1968)). Indeed, when “‘speech’ and ‘nonspeech’ elements are combined in the samе course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.‘” Machholz, 574 N.W.2d at 420 (quoting O‘Brien, 391 U.S. at 376).
In Machholz, the Minnesota Supreme Court applied these principles to invalidate a Minnesota harassment statute both on its face and as applied. Id. at 417. There, the defendant mounted his horse in downtown Rochester, Minnesota, and rode through a group of people gathered to celebrate National Coming Out Day–an annual celebration for homosexuals, their families, and their friends. Id. at 417-18. As he made approximately four passes through the crowd on his horse, the defendant shouted: “You‘re giving us AIDS!“; “You‘re spreading your filth!“; “There are no homosexuals in heaven!“; and “You‘re corrupting our children!” Id. at 418. He also swung a rope and knocked down a sign advertising the event. Id. A number of
The Minnesota Supreme Court first held that the harassment statute was facially overbroad under the First Amendment. The court noted that “[t]he broad reach of the statutory language [was] not limited to nonexpressive conduct,” and thus impermissibly encompassed protected “expressive activity.” Id. at 420. The State argued that the statute was still valid because it could be construed narrowly to only apply to fighting words. Id. However, the court determined the statute‘s language was too broad to support such a narrowing construction. Id. The court explained that the statute‘s broad language would impermissibly criminalize expressive conduct the Supreme Court has afforded First Amendment protection, such as cross burning or displaying swastikas during a march in a community where Holocaust survivors reside. Id.; see R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Nat‘l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43 (1977) (per curiam). Moreover, the statute was overbroad because it would criminalize day-to-day activities, such as a basketball coach yelling at her team and throwing a clipboard across the locker room to deliberately intimidate players into playing harder. Machholz, 574 N.W.2d at 421.
The court then held that the statute was overbroad as applied to the defendant because he was engaged in protected expressive activity. Id. Specifically, the court determined that, through his words and conduct, the defendant intended to convey opposition to the homosexual lifestyle, and that a reasonable onlоoker under these circumstances would have understood that message. Id. The court further explained that “in some instances it is possible to separate protected speech from unprotected conduct, [but] under the facts of this case, we cannot find a way to logically do so.
While the Machholz court did not interpret the disorderly conduct statute at issue in this case, Machholz is analogous to the present case and is therefore instructive as we predict whether the Minnesota Supreme Court would apply the S.L.J. “fighting words” narrowing construction to expressive conduct as well as verbal speech. We conclude that, in light of Machholz, the S.L.J. narrowing construction necessarily applies to protected expressive conduct. Otherwise, the disorderly conduct statute‘s prohibition of “boisterous” and/or “noisy” conduct “tending reasonably to arouse alarm, anger, or resentment in others,”
Having established that the S.L.J. narrowing construction applies to protected expressive conduct, we now consider whether the plaintiffs were engaged in such conduct. We conclude that the plaintiffs were engaged in protected expressive conduct. The plaintiffs intended to protest mindless consumerism when they dressed in zombie costumes, walked erratically, and broadcasted anti-consumerism statements over a makeshift, portable sound system. Moreover, under the surrounding circumstances, the likelihood was great that the plaintiffs’ artistic and symbolic
The defendants argue that In re Welfare of T.L.S., 713 N.W.2d 877 (Minn. Ct. App. 2006), demands a broader construction of the disorderly conduct statute when conduct is at issue. In that case, police arrested a girl for engaging in “boisterous” and “noisy” conduct after she “shrieked” profanities inside a school administration office. Id. at 881. The shrieking was so loud that it was “disruptive to the running of the school and purposes of the school.” Id. at 879. The girl challenged her arrest for disorderly conduct under S.L.J., arguing that the officers could not arrest her for using profanity. Id. at 880. However, the court held that while S.L.J.‘s narrowing construction applied to profanity, it did not apply to the girl‘s shrieking. Id. at 881. Specifically, the court held thаt “the statute may be applied to punish the manner of delivery of speech when the disorderly nature of the speech does not depend on its content.” Id. at 881 (emphasis added). In other words, the statute may be applied to boisterous and noisy non-expressive conduct, such as shrieking. Simply put, the court in T.L.S. was able to separate the girl‘s protected speech from her non-expressive shrieking. Given that non-expressive conduct is not afforded First Amendment
Finally, the disorderly conduct statute applies to the plaintiffs’ expressive conduct if that conduct amounted to “fighting words,” or words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” S.L.J., 263 N.W.2d at 419 (quotation omitted). Here, the plaintiffs were engaging in a peaceful anti-consumerism protest and we find nothing in the record to suggest that their expressive conduct even remotely amounted to “fighting words.”
Therefore, because the plaintiffs’ conduct was expressive conduct and did not amount to fighting words, their conduct clearly did not fall within the narrowed reading of the disorderly conduct stаtute. Thus, there was no probable cause to believe the plaintiffs’ expressive conduct violated the statute. Accordingly, we hold that Merkel and Weber violated the plaintiffs’ Fourth Amendment rights.
Despite our conclusion that the defendants engaged in constitutionally impermissible conduct when they arrested the plaintiffs without probable cause, they “may nevertheless be shielded from liability for civil damages if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The fundamental question under this analysis is whether the state of the law, as it existed at the time of the arrest, gave the defendants “fair warning” that the arrest was unconstitutional. Young v. Selk, 508 F.3d 868, 875 (8th Cir. 2007). “The Supreme Court . . . has made it clear that there need not be a case with ‘materially’ or ‘fundamentally’ similar facts in order for a reasonable person to know that his or her conduct would violate the Constitution.” Id. (quoting Hope, 536 U.S. at 741).
It is clearly established that a warrantless arrest, unsupported by probable cause, violates the Fourth Amendment. Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999). In the wrongful arrest context, officers are entitled to qualified immunity “if they arrest a suspect under the mistaken belief that they have probable cause to do so, provided that the mistake is objectively reasonable.” Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008). In other words, we must determine whether Merkel and Weber had “arguable prоbable cause” to arrest the plaintiffs for disorderly conduct. Id.
We conclude that Merkel and Weber did not have arguable probable cause to arrest the plaintiffs. The state of the law at the time of the arrests was clearly established such that a reasonable person would have known there was no probable cause to arrest the plaintiffs for engaging in protected expressive conduct under the disorderly conduct statute. The Minnesota Supreme Court‘s 1978 decision in S.L.J. clearly limited the disorderly conduct statute to “fighting words” when “language” is implicated. Moreover, the court‘s 1998 decision in Machholz made it clear that the S.L.J. narrowing construction applies to protected expressive conduct. After all, in light of Machholz, an objectively reasonable person would not think probable cause exists to arrest a man under Minnesota‘s disorderly conduct statute if the man was protesting homosexuality by riding his horse through a crowd gathered to celebrate National Coming Out Day, shouting anti-homosexual statements, swinging a rope, and knocking over signs advertising the event. Accordingly, an objectively reasonable person would not think probable cause exists under the Minnesota disorderly conduct statue to arrest a group of peaceful people for engaging in an artistic protest by playing music, broadcasting statements, dressing аs zombies, and walking erratically in downtown Minneapolis during a week-long festival. Merkel and Weber arrested the plaintiffs in 2006–well after the Minnesota Supreme Court‘s decisions in S.L.J. and Machholz. Thus, the Minnesota Supreme Court‘s cases in S.L.J. and Machholz provided Merkel and Weber with a fair warning that the arrests were unconstitutional.
Alternatively, the defendants argue that they are entitled to qualified immunity because probable cause existed to arrest the plaintiffs for displaying simulated WMD. In relevant part, the WMD statute provides:
Whoever does the following with intent to terrorize another or cause evacuation of a place, whether a building or not, or disruption of another‘s activities, or with reckless disregard of the risk of causing terror, evacuation, or disruption, may be sentenced to imprisonment for not more than ten years or to payment or a fine of not more than $20,000, or both:
(1) displays a weapon of mass destruction or a simulated weapon of mass destruction.
any device, substance, or object that by its design, construction, content, or characteristics, appears to be or to contain, or is represented to be, constitute, or contain, a weapon of mass destruction, but that is, in fact, an inoperative facsimile, imitation, counterfeit, or representation of a weapon of mass destruсtion that does not meet the definition of a weapon of mass destruction or that does not actually contain or constitute a weapon, biological agent, toxin, vector, or delivery system prohibited by this section.
weapons, substances, devices, vectors, or delivery systems that:
(1) are designed or have the capacity to cause death or great bodily harm to a considerable number of people through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors, disease organisms, biological agents, or toxins; or
(2) are designed to release radiation or radioactivity at a level dangerous to human life.
The Minnesota Supreme Court has not interpreted this statute. The district court explained that it is not clear under the above provisions whether simulated WMD must resemble WMD in all regards or merely in some or most regards. Baribeau, 578 F. Supp. 2d at 1215. In light of this ambiguity, the court predicted that the Minnesota Supreme Court would likely construe the statute narrowly and require that simulated WMD feature some simulated biological, chemical, or radioactive element. Id. at 1215-16. Under that reading, the court held that probable cause did not exist because the plaintiffs did not display biological, chemical, or radioactive elements. Id. at 1216. However, the court emphasized the statute‘s ambiguity and lack of judicial guidance, and held that the defendants were entitled to qualified immunity because “it would not have been clear to a reasonable officer” that the plaintiffs could not be arrested for displaying simulated WMD. Id.
We agree with the district court that there was no probable cause to arrest the plaintiffs for displaying simulated WMD. However, we do not agree that arguable probable cause existed to arrest the plaintiffs. We acknowledge that “[i]n close qualified immunity cases, the absence of judicial guidance can be significant because ‘[p]olice officers are not expected to parse code language as though they were participating in a law school seminar.‘” Walker v. City of Pine Bluff, 414 F.3d 989, 993 (8th Cir. 2005) (second alteration in original) (quoting Lawyer v. City of Council Bluffs, 361 F.3d 1099, 1108 (8th Cir. 2004)). However, the facts in this case did not require officers to parse code language.
As a part of their artistic anti-consumerism protest, the plaintiffs carried four bags of sound equipment. The bags contained an iPod, a radio transmitter, an antenna,
We reverse the district court‘s grant of summary judgment in favor of the defendants in their individual capacities on the plaintiffs’ Fourth Amendment claim because the doctrine of qualified immunity does not shield the defendants from the claim.
B.
The plaintiffs next argue that they were seized in retaliation for exercising their First Amendment right of free speech. The district court held that the defendants were entitled to summary judgment on this claim because there was probable cause for the arrest. Baribeau, 578 F. Supp. 2d at 1217. As discussed above, the defendants did not have probable cause or even arguable probable cause to arrest the plaintiffs. Therefore, we must examine the plaintiffs’ retaliation claim.
Like the wrongful arrest claim above, the plaintiffs’ retaliation claim requires qualified immunity analysis. A citizen‘s right to exercise First Amendment freedoms
“To prevail in an action for First Amendment retaliation, ‘plaintiff must show a causal connection between a defendant‘s retaliatory animus and [plaintiff‘s] subsequent injury.‘” Osborne v. Grussing, 477 F.3d 1002, 1005 (8th Cir. 2007) (alteration in original) (quoting Hartman v. Moore, 547 U.S. 250, 259 (2006)). “Retaliation need not have been the sole motive, but it must have been a ‘substantial factor’ in” the decision to arrest. Kilpatrick, 499 F.3d at 767 (quoting Wishnatsky v. Rovner, 433 F.3d 608, 613 (8th Cir. 2006)). Furthermore, the plaintiffs must show that the retaliatory motive was a “but-for” cause of the arrest–i.e., that the plaintiffs were “singled out” because of their exercise of constitutional rights. Id. Finally, the plaintiffs must show that the officers’ “adverse action caused [them] to suffer an injury that would ‘chill a person of ordinary firmness’ from continuing in the protected activity.‘” Williams v. City of Carl Junction, 480 F.3d 871, 878 (8th Cir. 2007) (quoting Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir. 2001)).
As discussed above, the defendants made an unreasonable mistake when they arrested and detained the plaintiffs without arguable probable cause to believe the plaintiffs either engaged in disorderly conduct or displayed simulated WMD. That unreasonable mistake is enough to defeat the defendants’ qualified immunity claim for wrongful arrest under the Fourth Amendment. However, we cannot say that a reasonable jury could find that retaliatory animus was a substantial factor or “but-for” cause of the plaintiffs’ arrest and detention. The evidence demonstrates that Merkel and Weber arrested the plaintiffs after Weber claimed to have observed a young girl become frightened by the plaintiffs’ appearance, which he unreasonably believed constituted “disturbing the peace.” Moreover, there is no evidence to suggest that the decision to arrest the plaintiffs for displaying simulated WMD was not based on an
C.
The plaintiffs’ final argument is that the officers committed the state-law tort of false imprisonment. The district court granted the defendants’ motion for summary judgment on this claim after finding that probable cause existed to arrest the plaintiffs for disorderly conduct, and that arguable probable cause existed to arrest and detain the plaintiffs for displaying simulated WMD. Baribeau, 578 F. Supp. 2d at 1218-19. Since we have found that neither probable cause nor arguable probable cause existed to support the arrests and detentions, we must now analyze the plaintiffs’ false imprisonment claim.
Under Minnesota law, “if an arrest is made without proper legal authority, it is a false arrest, and so false imprisonment.” Lundeen v. Renteria, 224 N.W.2d 132, 135 (Minn. 1974). An arrest for a misdemeanor conforms to Minnesota law as long as police officers have observed conduct giving rise to probable cause to believe that the offense was committed. Johnson v. Morris, 453 N.W.2d 31, 36 (Minn. 1990); Henry v. Comm’r of Public Safety, 357 N.W.2d 121, 122-23 (Minn. Ct. App. 1984); see
The plaintiffs allege that the defendants acted with subjective malice when they arrested and detained the plaintiffs. However, “[m]ere allegations of malice are not sufficient to support a finding of malice, as such a finding must be based on specific facts evidencing bad faith.” Semler v. Klang, 743 N.W.2d 273, 279 (Minn. Ct. App. 2007) (internal quotation omitted). Here, the plaintiffs have not produced evidence to suggest that Merkel and Weber intentionally arrested and detained the plaintiffs for disorderly conduct while knowing they had no probable cause to do so. Also, the plaintiffs have produced no evidence that thе decision to detain the plaintiffs for displaying simulated WMD was not based on a subjective good faith belief that the WMD statute might possibly be applicable. Accordingly, the defendants are entitled to official immunity under Minnesota law and we grant summary judgment in favor of the defendants on the plaintiffs’ state-law false imprisonment claim. Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006); Nelson, 162 F.3d at 991.
For the above reasons, we reverse the district court’s grant of summary judgment in favor of the defendants on the plaintiffs’ wrongful arrest claim. We affirm the district court’s grant of summary judgment in favor of the defendants on the plaintiffs’ retaliation and false imprisonment claims. However, unlike the district court, we base our decision to deny summary judgment not on the presence of probable cause, but on the plaintiffs’ failure to provide evidence demonstrating retaliatory animus and bad faith.
We turn next to Sternberg’s claims under the
A.
Sternberg contends that the confiscation of his prosthetic leg violated his
“To determine the constitutionality of a seizure we must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8 (1985) (internal quotation and brackets omitted). Sternberg argues that the confiscation of his prosthetic leg was “a far greater intrusion than seizure of typical items of personal property” because it involved “a part of his body.” The county employees respond that confiscating Sternberg’s prosthetic leg was justified by legitimate security concerns. As the Court recognized in Wolfish, “maintaining institutional security and preserving internal order and discipline are
Balancing the nature of the intrusion against the need for institutional security, we believe that the dеcision to confiscate Sternberg’s prosthetic leg was reasonable. The prosthetic leg consisted of a mannequin-like foot, a carbon-fiber socket contoured to fit Sternberg’s knee, and numerous metal parts, including two bolts near the heel, two more at the ankle, a cylindrical clamp, a receiving catch, and a stainless steel post. Constructed of hard, durable materials, the prosthetic leg was capable of supporting Sternberg’s weight. Precisely because of its heavy-duty design, however, the prosthetic leg was also capable of serving as a weapon for harming others. “A detention facility is a unique place fraught with serious security dangers,” id. at 559, and “the Government must be able to take steps to maintain security and order at the institution and make certain no weapons . . . reach detainees.” Id. at 540. Given the potential that Sternberg’s prosthetic leg could be used as a dangerous weapon, the decision to confiscate his prosthetic leg was objectively reasonable, despite the intrusion on his personal privacy. Summary judgment in favor of the county employees was therefore proper on Sternberg’s
B.
Sternberg also argues that the confiscation of his prosthetic leg violated the
“Absent a showing of an expressed intent to punish on the part of detention facility officials,” a particular condition or restriction of pretrial detention does not amount to “punishment” if it is “reasonably related to a legitimate governmental
Sternberg further contends that the confiscation of his prosthetic leg violated the
Sternberg asserts that the confiscation of his prosthetic leg violated the
IV.
We turn finally to Sternberg’s claims against the County and its employees under the ADA and the MHRA.
Sternberg challenges the district court’s grant of summary judgment on his claim under Title II of the ADA. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
Sternberg asserts his Title II claim against the County and various of its employees, in their personal and official capacities. Individuals in their personal capacities, however, are not subject to suit under Title II, which provides redress only from public entities. Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (en banc). Accordingly, summary judgment was proper on Sternberg’s suit against the county employees in their personal capacities. Treating his suit against the county employees in their official capacities as a suit against the County, see Hafer v. Melo, 502 U.S. 21, 25 (1991), we turn to the merits of his Title II claim against the County.
Sternberg contends that the County violated the ADA by confiscating his prosthetic leg. Although he does not dispute that he was provided a wheelchair and an ADA-compliant cell, he maintains that these measures fell short of reasonable accommodation for his disability, given the alternative of letting him use his prosthetic leg. We disagree.
To establish a violation of Title II of the ADA, Sternberg must demonstrate: (1) that he is a qualified individual with a disability; (2) that he was excluded from participation in or denied the benefits of the jail’s services, programs, or activities, or was otherwise subjected to discrimination by the jail; and (3) that such exclusion, denial of benefits, or other discrimination was by reason of his disability. See Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998). Sternberg has failed to make a showing
B.
Sternberg also challenges the district court’s grant of summary judgment on his claim under the MHRA. The MHRA states:
It is an unfair discriminatory practice to discriminate against any person in the access to, admission to, full utilization of or benefit from any public service because of . . . disability . . . or to fail to ensure physical and program access for disabled persons unless the public service can demonstrate that providing the access would impose an undue hardship on its operation.
According to Sternberg, the County and its employees engaged in “an unfair discriminatory practice” by confiscating his prosthetic leg. Sternberg has not shown, however, that he suffered any discrimination in “access to, admission to, full utilization of or benefit from” the jail. Nor has he shown that he was denied any
* * *
For these reasons, the judgment of the district court is affirmed in part and reversеd and remanded in part for proceedings consistent with this opinion.
COLLOTON, Circuit Judge, concurring in part and dissenting in part.
The defendant police officers Timothy Merkel and Roderic Weber had probable cause to arrest the plaintiffs for a violation of the Minnesota disorderly conduct statute,
I.
This case involves arrests for the misdemeanor offense of disorderly conduct. Minnesota’s disorderly conduct statute provides:
Whoever does any of the following in a public or private place, . . . knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others . . . , is guilty of disorderly conduct, which is a misdemeanor:
. . . .
(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.
The majority, however, declines to analyze the existence of probable cause under the plain language of the disorderly conduct statute. Instead, the majority concludes that the police officers acted in violation of a “narrowing construction” of the statute. The court reasons that where a person is engaged in “expressive conduct,” the prohibition on “boisterous or noisy conduct” in the disorderly conduct statute may be applied only to conduct that amounts to “fighting words,” or to words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Ante, at 15. And the majority further opines that this “narrowing construction” was clearly established law as of July 2006 when Merkel and Weber arrested the plaintiffs.
The majority’s conclusion is incorrect. The Supreme Court of Minnesota has not announced that the disorderly conduct statute is narrowed in the manner suggested by the majority, and the Minnesota Court of Appeals has rejected contentions that the prohibition on “boisterous or noisy conduct” is limited to “fighting words.” As of July 2006, therefore, Minnesota law did not clearly establish that police officers must conform their actions to a narrowing construction of the disorderly conduct statute, rather than to the statute as written.
In a later decision, however, the Minnesota Court of Appeals addressed the portion of the statute at issue in this case, and held that the narrowing construction of S.L.J. did not apply. In In re Welfare of T.L.S., 713 N.W.2d 877 (Minn. Ct. App. 2006), filed just ten weeks before the arrests in this case, the court of appeals considered the statute’s prohibition on “offensive, obscene, abusive, boisterous, or noisy conduct.”
The majority mischaracterizes T.L.S. as establishing only that the disorderly conduct statute may be applied to “boisterous and noisy non-expressive conduct.” Ante, at 14. The decision of the Minnesota Court of Appeals was not so limited. Rather, the court explained that even where a person is engaged in expressive conduct or speech, it is constitutional to prohibit the objectionable manner in which that expression is communicated: “[T]he disorderly shouting of otherwise protected speech or engaging in other ‘boisterous or noisy conduct’ may still trigger punishment under the statute without offending the
The majority seeks to bolster its conclusion by reference to a decision of the Supreme Court of Minnesota that declared invalid as contrary to the
II.
Under the disorderly conduct statute as written and interpreted by the Minnesota courts, Merkel and Weber had probable cause to arrest the plaintiffs. As the majority explains, “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the
The disorderly conduct statute applies to persons who engage in “boisterous, or noisy conduct . . . tending reasonably to arouse alarm, anger, or resentment in others,”
Here, Merkel and Weber knew that someone had called 911 to report the plaintiffs’ conduct. The caller described the plaintiffs as “playing loud music from a boombox,” giving the officers reason to believe that the plaintiffs’ conduct was boisterous and noisy. The caller also stated that the plaintiffs were “calling themselves zombies and almost touching people,” suggesting further that their conduct was offensive. That the caller felt moved to dial 911 indicated that the plaintiffs’ conduct already had aroused alarm, anger, or resentment in at least one person (namely, the caller herself), and was likely to arouse such feelings in others, given the crowds downtown for the Aquatennial festival.
Police officers themselves observed conduct similar to what the 911 caller described. When Officers James Archer and Chad Martin arrived near the intersection of South Seventh Street and Nicollet Mall, they saw and heard the plaintiffs playing music over the speakers of their sound system, and witnessed them “coming up close to people.” They saw the plaintiffs dancing to the music while pretending to be zombies, their faces covered with makeup and fake blood. With the caller’s account of people “playing loud music from a boombox,” “calling themselves zombies,” and “almost touching people” largely substantiated, the officers advised the plaintiffs to turn down the volume and stay away from bystanders.
Merkel and Weber were entitled to rely on the information contained in the 911 call and the observations made by Archer and Martin. See Draper v. United States, 358 U.S. 307, 311-12 (1959) (holding that hearsay may be considered in determining the existence of probable cause, even if it would not be admissible in a criminal trial); White v. United States, 448 F.2d 250, 254 (8th Cir. 1971) (“[I]n determining whether probable cause existed we must evaluate the collective infоrmation of all the
It is true that the officers did not arrest the plaintiffs until after they suspected that the plaintiffs were affiliated with a violent gang, and by that time, the plaintiffs were neither dancing nor playing music. Probable cause to believe that the plaintiffs engaged in disorderly conduct, however, did not dissipate in the time between their initial encounter with police and their arrests. See United States v. Watson, 423 U.S. 411, 449 (1976) (Marshall, J., dissenting) (“Unlike probable cause to search, probable cause to arrest, once formed will continue to exist for the indefinite future, at least if no intervening exculpatory facts come to light.”) (citing cases); United States v. Bizier, 111 F.3d 214, 219 (1st Cir. 1997). That the officers may have been motivated to make the arrests by matters unrelated to the plaintiffs’ conduct, such as concerns about possible gang affiliation, is also immaterial to the
While the arrests in retrospect may seem unnecessary and ill-advised, that does not mean that they were in violation of clearly established constitutional rights. Nor should this legal conclusion arouse fears that the jails of Minneapolis will be filled with people who play loud music on sidewalks. The Supreme Court in Atwater observed that “the country is not confronting anything like an epidemic of unnecessary minor-offense arrests,” 532 U.S. at 353, and there is nothing in the record of this case to suggest that Minneapolis is any different. It is reasonable to presume
The existence of probable cause to believe that the plaintiffs engaged in disorderly conduct was constitutionally sufficient to justify their detention between the arrests on Saturday night and their release on Monday. See County of Riverside v. McLaughlin, 500 U.S. 44, 56-57 (1991). Thus, the district court did not err in granting summary judgment in favor of the officers on the plaintiffs’
III.
I concur in the majority’s judgment rejecting plaintiffs’ claim that they were seized in retaliation for exercising their
The facts of the seizures outlined above, even without considering the 911 call that prompted the investigation, were sufficient to establish probable cause to believe that the plaintiffs engaged in disorderly conduct in the presence of officers. As noted, the officers themselves observed conduct similar to what the 911 caller described, including that the plaintiffs were playing music over the speakers of their sound system, dancing to the music with their faces covered with makeup and fake blood, and “coming up close to people.” The district court thus did not err in granting summary judgment on the claim of false imprisonment.
Finally, I concur in Parts III and IV of the opinion of the court. The judgment of the district court should be affirmed.
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