*1 dеcision portion of the arbitrator’s labeled Fact”) rather than
“Findings limiting its portion to that
enforcement action labeled “Arbitrator’s Award.”
decision decision the first
Because our issue moot, issue
renders the second we do not
reach this issue.
DECISION procedures
Because the established Chapter govern Minnesota Statutes questions affecting
resolution of title Tor
rens land and because alternative-dis
pute-resolution procedures here did not 508, we
satisfy chapter reverse the district of the
court’s confirmation arbitrator’s de boundary
termination of the line between parcels land Torrens involved
dispute.
Reversed.
MINNEAPOLIS POLICE
DEPARTMENT,
Relator,
v. KELLY,
Phillip Respondent,
City Minneapolis, Commission Rights, Respondent.
on Civil
No. A09-81. Appeals
Court of of Minnesota.
Jan. *3 Segal, City L. Attor- Minneapolis
Susan Skarda, ney, Timothy City S. Assistant Minneapolis, MN, Attorney, for relator. Walker, Offices, L. Walker Law William *4 P.A., MN, Minneapolis, respondent, Kelly. MINGE, and
Considered decided SCHELLHAS, Judge; Judge; Presiding HARTEN, Judge. and OPINION MINGE, Judge. certiorari,
By Minneapolis writ of relator (MPD) Department seeks reversal Police by the Minneapolis of the decision Com- commission) (the Rights mission on Civil unfairly that MPD officers discriminated against respondent. We affirm.
FACTS 8, 2004, respon- January About noon on Kelly, a African- Phillip middle-aged, dent was Minneapolis, resident American purchase walking to a convenience store to Minneapolis park cigarettes. A bread driving heard a officer in the area robbery an at a reporting armed dispatch was de- nearby business. The robber male as African-American scribed Kelly jacket jeans. wearing a black jeans, jacket and wearing blue and his was were black. hood re- Kelly might be the Suspecting robber, park radioed for officer ported behind, from backup, approached Kelly stop. Kelly him to did not see told and, listening to because he was officer headphones, music device with portable stop. not hear command did behind, grabbed Kelly from park bodily officer vent harm to the accused or an- wrists, placed conduct, a handcuff one of his other or further criminal ground. Surprised wrestled him to the that there is a substantial likelihood that why knowing and not he had been taken the accused will fail to respond to a down, Kelly resisted. MPD officers Villa- citation. may The citation be issued in Dubay park arrest, mor and arrived tо assist the lieu of an or if an arrest has been seized, knowing why made, officer. Not he was in lieu of continued detention. Kelly being continued to resist handcuffed l(l)(a) (2008). 6.01, Minn. R.Crim. P. subd. squad and refused to enter the car. To The record completed by contains a form ear, Kelly squad force into the officer Vil- the officers with boxes indicating checked applied lamor pain-compliance holds and was detained because of the risk knee strikes. The officers testified that that he would commit further crimes and Kelly appealed bystanders help would not respond to a citation. baseless, perceived what he abe racist jailed p.m. at 1:23 jail and released from car, squad seizure. Once re- about p.m. charges 6:30 against Kelly angry mained and the officers testified *5 ultimately were dropped. they that could not communicate with him. evеnts, on Kelly Based these filed a
The MPD brought Kelly officers to the complaint against the MPD with the Min- there, store that was robbed. Kelly Once neapolis Department of Rights.1 Civil He why calmed down and being asked he was claimed he was wrongfully assaulted and stopped. The arranged officers for the jailed, wrongfully and race played a store employees Kelly. to view The em- in role those An investigator actions. con- ployees Kelly said was not the robber and cluded that there probable cause that Kelly asked to be released. The MPD racial discrimination had occurred and re- officers informed that he was under complaint ferred the to the commission. arrest for his pre-show-up conduct and The commission panel established a brought him to the Hennepin County jail, three members to consider the matter. charging him with the misdemeаnors of Minn., Minneapolis, See Code of Ordi- conduct, disorderly Minn., Minneapolis, 141.50(i)(2008) (hereinafter § nances mul- (2004), § Code of Ordinances 385.90 and tiple provisions of the 2008 Code of Ordi- obstruction of legal process, Minn.Stat. apply nances to this case and are referred (2004). § 609.50 “Ordinance”). to as hearing A was held Minnesota Rules of Criminal Procedure jury-trial followed a format with two that, provide rather than arresting and acting jurors commissioners as and the detaining offender, a misdemeanor officers third commissioner as the presiding offi- are to give citations unless: cer. hearing, Based on the panel in a
it reasonably appears (1) to the officer special verdict concluded: the officers arrest or detention necessary is to pre- did not use excessive force they ap- when Minneapolis Department The pointed of Civil deрart- under different rules than the Rights provides ment, administrative services for rule-, charged and is policy- with and Minn., Minneapolis, the commission. Code decision-making authority regarding the civil- 141.80(b) (2008). § of Ordinances The de- rights § ordinance. Following Id. 141.40. duties, partment, among other receives com- referral, department’s investigation and plaints, investigates probable claims for hearings commission conducts and ren- cause, disputes, conciliates and refers cases findings pursuant ders to the ordinance. Id. 141.80(c); to the commission. Id. 141.50. § 141.50. The ap- commission consists of members (APA) him to the Administrative Act Kelly and took Procedure prehended (2) unreasonably judicial de- governed the MPD review also as show-up; 141.50(i), (k), of the §§ after he was cleared APA. Ordinance tained discernible, .60(b). “race was a robbery; in
discriminatory and factor causative special- [Kelly’s] adverse treаtment.” Scope A Review Standard of verdict determination awarded reviewing hybrid jury-tri $5,000 in ac- suffering, for mental $382.50 used in al/administrative-hearing format $8,500 damages, punitive dam- tual proceeding, several documents com payment of an addition- ages, and ordered prise scrutiny. the determination under $8,500 penalties City al civil to the findings are the These Minneapolis. panel, The chair of the on fact, law, conclusions and order commission, also issued find- behalf of judgment; accompanying memoran fact, law, and an ings of conclusions of by the signed presiding dum commission judgment accompanying with an order er; special panel’s and the verdict based this cer- brings memorandum. MPD presented jury pan instructions to the appeal. tiorari Although el. the commission utilized process jury trial,2 recognize, akin to we ISSUES ordinance, by the as directed that review 1. Was commission’s determination guided APA. by the unfairly the MPD discriminated *6 Kelly unsupported by substantial against agency An presumed decision is arbitrary capricious? evidence or of correct and is not reversed unless one award of emo- 2. Was statutory several bases is met. CUP Kelly and punitive damages tional Foods, City Minneapolis, Inc. v. 633 of Minneapolis to the penalty city the civil of 557, (Minn.App.2001), 562 review N.W.2d improperly unsupported record and (Minn. 2001). 13, Nov. In relevant denied applied? part, only reverse action when agency we inferences, conclusion, or de “finding,
ANALYSIS
unsupported by
...
cisions are
substantial
I.
as
in view of the
record
evidence
entire
submitted;
capricious.”
...
essentially
arbitrary
is
whether the
or
or
The first issue
(2008).
§ 14.69
adequately supports the discrimina- Minn.Stat.
“Substantial
record
a reason
by the
evidence” is such evidence “that
decision
commission.
tion
might
adequate
as
by city
accept
ordi-
able mind
commission
established
§
a conclusion.
It must be more
support
141.10. The Minne-
nance. Ordinance
scintilla, some,
any
than a
evidence.”
provides
ordinance
that the commis-
apolis
Proposed
Iron &
's
hearings
complaints
Supply
of
In re Am.
Co.
sion conducts
on
140,
panels consisting
Shredding Facility,
of three Metal
604 N.W.2d
discrimination
omitted).
(Minn.App.2000) (quotation
pursuant
to the Minnesota
149
commissioners
verdict,
reviewing
any theory,
verdict
be disturbed.”
jury
we
will not
If we were
only
special-
Beverage Corp.,
determine “whether the
would
Nat’l
745 N.W.2d
Dunn v.
any
omitted).
can be
rea-
549,
(Minn.2008)
verdict answers
reconciled
(quotations
555
manner
with the evidence
sonable
consistent
exacting
APA's
is not as
as the
This standard
fair inferences.
the answers
and its
If
judicial-review guidelines.
questions
special verdict
can be reconciled
766
agency
arbitrary
capri
An
decision is
B. Establishing
Discrimination
Unfair
“represents
agency’s
cious if it
will
The ordinance prohibits “any
judgment.”
than its
In re Max
rather
person engaged in
provision
public
Sons, Inc.,
Schwartzman &
670 N.W.2d
racially
services” from
“discriminatfing]
746,
(Minn.App.2003). Generally, we
to,
against any person, in the access
admis
if, “in
agency
light
affirm an
of the entire
to,
sion
full
any
use of or benefit from
record,
supported by
the decision is
evi
public
139.40(j)(l).
service.” Ordinance
dence a
accept
reasonable mind would
as
determining
test for
unfair discrimina
Lines,
adequate.” Shockency v. Jefferson
tion
public-services provision
under this
(Minn.1989).
715,
439 N.W.2d
We de
Richardson,
set forth in
tion of
and we defer to
87,
767 based on in Beaulieu was The decision complainant was of the treatment that the at 572-73. reasonably evidence.4 518 N.W.2d would indirect with what at variance so to have There, robbery reported was absent discrimination a anticipated be explanation. probable the an African-Amеrican discrimination been committed Beaulieu, at 571. Find Id.; the patrolling at Police male. Id. 568. wrongful discrimination ings regarding area, descrip- and the of the crime aware credibility determinations heavily on turn robber, an African-Ameri- saw tion of the if reviewing court by the upheld are gender driving unknown person can more conflicting permits the evidence passenger, male an African-American with to be drawn. inference than one reasonable vehicle, the driver was the learned stopped Richardson, Minn. at 239 N.W.2d 13-year-old the male was her female and at 202. for son, the mother and son and detained no at There was 15 minutes. Id. 568-69. Kelly is a commission found comments. Based on of racial of his evidence a class because protected member of evidence, court con- supreme action the race, subjected to adversе indirect he was fac- factfinder could MPD, a discernable that a reasonable and race was cluded It is test. wrongful the so-at-variance because tor under infer discrimination a a member of Kelly is undisputed that no reason to believe police had seizure, arrest, that his class and a female protected years old or had suspect treatment. adverse jailing constituted wore the claimant accomplice and because claim direct evi- Kelly does not Id. at clothing suspect. Because than the different discrimination, the issue is wheth- dence noted that supreme court also 573. The evi- and circumstantial er there is indirect stating lied to the claimants the officers adequate basis provides dence robbery, involved with that a car was MPD’s finding that the Therefore, evi- faith. Id. evidencing bad reasonable at variаnce with conduct was so could unjustifiable detention of an dence could the commission expectations under of discrimination allow unfair discrimina- conclude that reasonably these cir- Given Richardson standard. probable explanation. tion was the cumstances, court remanded supreme to deter- judge law the administrative Richardson, court for- supreme was “so officers’ conduct whether the mine interpreting mulated the standard reasonably be would with what at variance upholding public-services provision that dis- discrimination anticipated absent racial discrimina- agency’s finding of state explanation.” probable crimination is the There, tion. Id. at *8 court Although supreme the at 573. Id. dogs to attack officers released faith, court did of bad noted evidence an ar- youth witnessing African-American finding of bad faith was that a car, not indicate rest, squad a and used dragged him to determina- necessary for a discrimination brought him to the they as epithets racial 82-83, at 200. tion. Id. 239 N.W.2d Id. at station. epithets were direct the racial
Because sum, does state’s caselaw In our discrimination, Richardson did evidence be estab that discrimination require not indirect- actually apply not need to of racism. evidence by direct lished it articu- portion of the standard evidence racial Beaulieu, allegation of was no there 88, at 203. 239 N.W.2d lated. Id. public-services issue, under the police officers sued con- separate the Beaulieu court 4. As at 571. immunity provision. 518 available to limits on sidered the jail of discrimination. for when to detain and and when to or other indicia epithets a citation. That rule that issue holds offi- very purpose at 568-70. 518 N.W.2d give cers are to citations for misdеmeanor standard is address of the so-at-variance charges reasonably appears unless “it -wrongful acts of discrimination less blatant that ... officer there is substantial fact finder to examine mis- by allowing a fail likelihood that the accused will to re- weigh conduct and circumstances to spond to a citation.” Minn. P. R.Crim. underlying motives indirect determine portion adopted 6.01. This of the rule was evidence. in 1975 when there was a national effort to prevent discriminatory use of arrests Test Application C. So-Ah-Variance for minor offenses. ABA See Standards of Here, is no direct evidence there cmt., §§ Criminal Justice 10-2.2 10-2.8 unfair and the commis discrimination (2d 1980) (“A per- cmt. ed. standard sion used the so-at-variance test set forth according mits officers to arrest or not The commission’s decision Richardson. personal their assessment of a defendant was based on its determination inevitably unequal is bound to lead to en- jailed “in violation of the crimi was clear laws.”) (citing forcement of the Kenneth nal rule which mandates the issuance of [a] (1971)). Davis, Discretionary 80-96 Justice citation for misdemeanor offenses.” Its recognize The rule and its comments conclusion was that the “continued deten justified if arrest there is a substantial up’ ... tion after the ‘show was so at likelihood that the defendant will fail to reasonably with what would be variance appear response in court in ato citation. discrimination, anticipated absent that dis Minn. R.Crim. P. 6.01 cmt. The comments explanation.” probable crimination is the make clear that the defendant’s attach further concluded that the commission community prior history ment to the nondiscriminatory officers’ reasons response criminal process are pretextu their decision to detain guideposts relevant for such a determina al. Documents in the record indicate that tion. Id. This rule has become well estab initially given the reasons were risk lished law enforcement. State v. See further would commit crimes5 (Minn. Askerooth, 353, 681 N.W.2d 372-75 to a cita respond 2004) (Russell that he would not Anderson, J., concurring) tion. 1975, (noting since rule 6.01 has “been easily workable and applied by officers on previously recognized, As our task aas street”). consistently This court has reviewing court not to determine what upheld enforcement of the limitation acting we would decide if we were as the Martin, court. district See State v. Rather, commission. we are to determine (Minn.1977) (find 404, 253 N.W.2d 405-06 whether there is substantial evidence to ing unjustified 6.01); arrest under rule support the commission’s conclusion that Richmond, State v. the MPD’s conduct was so at with variance (same), (Minn.App.1999) review denied expectations reasonable that discrimina- (Minn. Evans, 2000); June State v. probable explanation. tion is the *9 N.W.2d (Minn.App.1985); see also key T.L.S., A component of the commis In re Welfare of sion’s determination is the Minnesota rule 881-82 (Minn.App.2006) (upholding arrest subsequently, 5. As point discussed the MPD does crimes and we do not at this further press any not now claim that and arrest de- consider this basis for and arrest detention. required prevent tention was to further (9) attack; racially did not remained uncon motivated know student who expelled of during struggle the initial that he fit the presence). in officer’s trollable description person just of a who had com- in made to this court arguments The area; robbery in the mitted armed and ring the use of a citation Richmond about (10) compliant and was once calmed down before us here. to those similar for he learned the reason his seizure. There, the district court at 653. following an The evidence is sufficient to allow the discovered excluded evidence infer, obstructing panel quasi-jury, commission as a driving and arrest for careless (1) or there was no basis the officers: knew should have legal process because all preceding at known of the evidence re- an arrest. Id. 652-53. (2) Kelly; jail in the decided to him be- early garding the encounter testified following cause of his ini- cooperative. indignation not Id. offender was (3) seizure; ultimately tial court found that exacerbated skirmish But the district (4) by jailing Kelly; and that were well familiar the offender was “under control” (5) made, 6.01; in with the citation directive rule the decision to arrest was when purpose that he knew or should have known the no credible evidence there was rule 6.01 and that citation rather than respond to a citation. Id. would not jail if the offend- persuaded by appropriate not officer arrest and fact finder was (6) affirmed, community; is attached to the never “[t]aking into er testimony. Id. We citation, attempted offered a to de- due district courts account the discretion citation, willingness accept termine his a credibility assessment of oral testimo- checked his record for warrants or or ny.” Id. (7) history; pre- and could be criminal Richmond, Here, as in the officers racially charged sumed to know the atmo- they they jailed Kelly because claimed that sphere policing the African-Ameri- respond would fail to believed that community training. can based on their citation, earlier behavior in the citing his Finally, the record shows that the Henne- angry been and encounter when he had Kel- pin County Detention Center released commission, on its resistant. The based City ly p.m. at about 6:30 and credibility and of the record review charges without a Minneapolis dropped the witnesses, there was no determined record, we cannot hearing. Based on this to arrest and detain legal valid or reason findings— that the commission’s conclude following Kelly. provides The record was will- namely, that the MPD’s conduct the commission’s supports evidence that product and the of unfair fully indifferent jailed by time the officers finding: Richardson and discrimination under (1) was mid- Kelly, it was clear arbitrary capricious Beaulieu —were (2) with his wife aged; dle lived evidence. unsupported substantial (3) area; walking to peacefully had been commission’s action in reviewing purchase cigarettes; bread and the store (4) unmindful of proceeding, we are not listening headphones to music on (1) him; need weighty considerations: someone behind two and could not hear (5) to make street-level down an for law enforcement was startled when taken (6) behind; with broad dis- arrest-detention decisions was innocent officer from (7) hyper-technical, after- by this cretion free from any robbery; was embittered (2) review; by being the-fact discrimination person forcible seizure of his identifying addressing January; importance of pavement in forced to lie on the in law enforcement and improper conduct that he was the victim of perceived *10 Kelly likely ap- was not difficulty determining of the existence indicate that the pear response racial discrimination —discrimination in to a citation. Based on of of a record, to the maintenance that is corrosive we conclude that there is not a City Minneapolis society. civilized that sufficient basis for us decide the commission to balаnce the has established disregard of the officers’ ex- Here, the commis- these considerations. arbitrary planation capricious. was involving in a situation sion faced that task We also note that the officers who, person up point a to the jailing the actually gave two reasons for their con- law police, with abid- of the encounter that the citation ignore duct: would simply walking been down ing and had likely and that he was to commit “contin- cigarettes. buy bread and street to activity.” ued criminal The second ratio- appellate not what this court question is regarding Kelly’s potential nale to commit fact, a trier of but whether would do as by any further supported crimes is not evidence in the rec- there was substantial argued evidence in it the record. Nor was ord from which the commission could de- appeal permissible explanation as Kelly’s termine that detention was so-at- reaching relator. In its conclusion of dis- proper with standards that dis- variance treatment, criminatory the commission probable explanation. crimination was may have considered this abandoned alter- native basis for detention of sup- as D. Pretext porting that the arrest was responds that the offi The MPD discriminatory conducted for reasons. their decision to arrest and cers made Kelly on the reasonable belief that detain Finally, we note the commission did there was substantial likelihood he improper not find discrimination in the response in to a appear would not citation seizing subduing Kelly. officers’ It angry. explanation because he was This only jail found the decision to arrest and shifted the burden to establish Kelly discriminatory unreasonable and un- nondiscriminatory reason wаs der Richardson and Beaulieu. This deci- commission, pretextual. as fact While commission, together sion with its finder, accepted could have the officers’ special detailed verdict after instructions reason, nondiscriminatory the commission conclusions, findings, and its extensive or- pretextual found that reason because even der, memorandum, all indicate that that Kelly officers admitted calmed carefully the commission and evenhanded- given down before he was the citation. ly Kelly’s complaint evaluated and the offi- argued The officers experience their actions, cers’ and endeavored to reach a justified with no-shows their reasonable proper determination. jail Kelly him give decision to rather than sum, we conclude there was ade- a credibility question. a citation. This is quate indirect evidence thе record to
Although years the officers had several provide supporting substantial evidence MPD, nothing in service on the the record the commission’s determination of racial any establishes whether the officers had discrimination the continued arrest and expertise concerning actual no-shows or jailing Kelly by the MPD. frequency and circumstances of misde jailings. any meanor Nor was there evi II. dence, such as lack of attachment to the community prior history appeal of not re The second issue on to criminal sponding process, damages supported by that would whether the are
771
that,
($8,500.00).
if the
argues
MPD
even
five hundred dollars
Puni-
record. The
damages
pursuant
warrant
tive
shall be awarded
of racial discrimination is
ed,
to Minnesota Statutes
549.20.
damages
unsupport
assessed
were
Section
the
any
political
In
case where a
by
Kelly argues
evidence.
the
subdivision
ed
However,
respondent,
punitive
is a
the total
dam-
greater.
be
be
award should
ages
aggrieved party may
awarded an
Kelly did not file a notice of review
cause
106,
eight
not exceed
thousand
five
Civ.App.
to Minn. R.
P.
dollars
pursuant
($8,500.00)....
hundred
preserved
appeal
not
and we
issue is
it.
In re Cont’l Tel.
decline to address
See
141.50(m).
Findings
Ordinance
of dam-
Co.,
400,
(Minn.App.1984)
358 N.W.2d
404
anti-discrimination
age
under
awards made
(on
certiorari,
respondent may
writ of
statutes
receive considerable deference.
by filing
raise additional issues
properly
City Mpls.
Dept.,
See Kohn v.
Fire
of
review),
rev’d in
part,
notice of
in
aff'd
(Minn.App.1998) (giving
def-
(Minn.1986).
part,
29-30 the indifference” standards set “willful nature and evidence of the only “offer Huygen § in 549.20. forth Minn.Stat. See by harm caused of emotional extent Paul, Inc., Enters. v. Plums St. Here, Kelly de- alleged Id. violation.” of (invali (Minn.App.1984) anguish by caused emotional scribed the by dаting punitive damages award He tes- alleged the MPD’s discrimination. city’s human-rights because commission powerless felt and that he tified that he by the commission is the standard used testimony His estab- rights.” “had no with the state willful-indiffer inconsistent in- humiliation and distress suffered lished ence standard embodied in Minn.Stat. jailing. wrongful his arrest and cident to (1982)). § Bougie Sibley 549.20 In v. to es- testimony is sufficient Because Manor, Inc., we reversed the district court conclude that anguish, mental we tablish considering for not the factors in section the commission did not abuse its discretion (Minn. 549.20. 504 N.W.2d 499-500 $5,000 damages for awarding App.1993). anguish. mental Here, in Bougie, unlike the commission Penalty Damages B. and Punitive Civil panel punitive damages part awarded as a response award in special-verdict of the civil challenges The MPD also the jury requi- instructions that set forth the City Minneapolis to the of penalty payable factors, statutory “by site Because punitive-damage award. evidence,” convincing clear and the MPD damage are interrelat types these two disregard “acted with deliberate for the ed, together. them we consider rights [Kelly].” We note that this find- specifies punitive The ordinance ing essentially is a function of the com- with damages comply must Minn.Stat. MPD mission’s determination the (2008). 1(a) 549.20, § subd. Ordinance wrongfully jailed Kelly based on his race. 141.50(m). section, punitive § Under Furthermore, presiding officer of the are when damages awarded the offender panel required commission identified the disregard with “deliberate for the acts statutory analysis findings in her rights safety of others.” Minn.Stat. expla- memorandum of law. Because this 1(a). 549.20, § penalty subd. The civil application nation demonstrated of section based on “the determined seriousness and by supported 549.20 and was the commis- violation, public extent of the harm prior findings, sion’s the com- we conclude violation, by occasioned whether the awarding puni- mission did not err in intentional, the violation was cost of inves- damages. tive by City tigation incurred of Minne- financial apolis, provision and the resources The ordinance 141.50(m). § respondent.” penalty applies grounds Ordinance the civil similar (1) argues punitive-damage Compare The MPD the factors for to the award. 141.50(m) § awarding punitive damages were not ex- Ordinance with Minn.Stat. (2) considered; plicitly civil-penalty provide any 549.20. The MPD not does analysis overlapped punitive-dam- legal argument with the basis for its that these two age analysis; penalties, application, because the MPD is similar their can City MPD on similar part Minneapolis, concurrently of the not be assessed paying assessing penalty, itself civil dam- the civil the award to bases. the ac- ages special are moot. verdict found ly jail “a serious in the decision to him the MPD constituted arrest and by tions significant public causes violation which misdemeanor violations. also affirm We public the erosion of trust harm the commission’s award for emotional and con- of color.” The commission *13 citizens punitive damages and imposition of a intentional, that the harm was seri- cluded penalty civil on relator. ous, fac- public and detrimental to the —all Affirmed. by
tors cited the ordinance. record city time of em- indicates that substantial HARTEN, Judge,* dissenting. by Minneapolis De- ployees spent Rights investigating partment of Civil respectfully majori- I dissent from Kelly’s complaint. The processing and ty’s affirmance of the of respon- decision $8,500 that MPD has not demonstrated Minneapolis Rights dent Civil Commission. unsupported by sub- award is excessive or reсord which the commission made stantial evidence. analysis its and found discrimination is complains The MPD an fatally deficient. The commission identi- the MPD for damages against award of discrimination; fies no overt racial fund unusual. Minneapolis general is instead, it relies on its own obscure notion established, however, that “[e]v It is well discrimination, begin- of constructive racial construed, possible, if to ery law shall be ning assumption with an unwarranted and Minn. give provisions.” effect to all its proceeding directly to a foregone conclu- (2008); § see also Minn.Stat. Stat. 645.16 sion. 645.17(2) (2008) (establishing presump § matter, As a I threshold refuse sub- legislature tion that intends entire statute majority’s scribe to the view that the com- certain”). and The ordi to be “effective mission’s decision is entitled to an altered plainly penalties nance allows for civil scope of review because thе commissioners defendants, including against possible all jury’s jury. sat as a We review a verdict entities, public explicitly and it addresses by “a making painstaking review a “politi situations where the defendant is record to determine whether the evidence city. cal subdivision” of the Ordinance and reasonable inferences drawn there- 141.50(m). § does not disre This court from, light in a favorable to viewed most if it is gard legislative body’s a decision verdict, RSJ, sufficient to allow the by Beaulieu v. were unambiguous. State (Minn.1996). Inc., Brown, jury 552 N.W.2d As to reach its verdict.” State v. result, (Minn.2007). invalidate the civil a we decline to But the penalty.6 jury: it commission is not adminis- and are re- agency, trative its decisions sum,
In we conclude that the award of out in the viewed under standards set damages finding based on a of racial dis- (APA). Act Administrative Procedures by supported crimination is substantial evi- Minn., of Ordinances Minneapolis, Code arbitrary capricious. and dence is not 141.60(b) (2008). § Specifically, we re- DECISION they if are findings verse the commission’s evidence in “unsupported substantial finding affirm the commission’s We record unfairly against relator discriminated Kel- view of the entire as submitted” * Ap- Minneapolis judge the Minnesota Court of payment 6. If the MPD to the Retired circular, pursuant city peals, serving by appointment general fund can handle Const, VI, § internally. art. the issue Minn. of the Richardson the shameful behavior Minn.Stat. capricious.” “arbitrary (f) (2008). majori- Dubay 14.69(e), I believe the officers. Officers Villamor these standards the line between what the commissioner has deemed ty blurs used weight to the added by giving notably apprehend of review force” to “reasonable findings.1 “hybrid-jury” armed, defiant, struggling possibly struggle, they suspect. the heat of A of discrimination arrest, impres- based on their decided the record estab- may madе when be Kelly, being who admitted to sion in treat- an adverse difference lishes Minn. angry, would scoff at a citation. See public services respect ment with subd.(l)(a) 6.01, (providing P. R.Crim. *14 compared to persons when one or more may officers arrest law enforcement similarly accorded others treatment reasonably appears if “it to misdemeanors of an except for the existence situated ... there a substantial the officer that is race, color, such as impermissible factor to that the accused will likelihood etc.; creed, sex, treatment so at fail citation.”) (Emphasis add- respond to a reasonably be with what would variance ed). testimony their The officers’ reflects that absent discrimination anticipated with rule. compliance probable explana- is the discrimination tion. Villamor testified that he decidеd Officer Richardson, 307 Minneapolis v. City of “[bjecause [Kelly] I that to arrest believe (1976). 80, 87, Minn. a citation.” respond would have failed to to Richardson, majority relies on which the this, why Asked he believed Villamor re- on extensively, readily distinguishable is uncoopera- plied, “Because of his level of who It involved officers its facts.2 tiveness and resistance.” 12- included a threatened a crowd youth; used year-old African-American testified, Dubay “[Kelly] was Officer youth; attacked the police dogs placed disorderly under arrest for conduct down, feet, face dragged youth his obstructing legal process. His car; epithets racial to squad to a and used action, belligerent vulgari- actions—his his him youth taking while disparage the ty public place, out in a the fact 82-83, 239 N.W.2d at the station. Id. at Officer Villamor had to use force on Mr. racial slurs “cou 200. The officеrs’ use of I Kelly. experience From believe Mr. pled egregious supported their acts with” Kelly have a citation accepted would not they racially had a dis the inference angry.” he too asked because was When 89, 239 criminatory motive. Id. at this, answered, why Dubay he believed at 203. my experience, disorderly way “From conducting public that he was himself in a
The decision of officers Villamor and Kelly cry place, drawing was a far from attention to himself from Dubay to arrest View, reasons, City highly problematic 2. Beaulieu v. Mounds 1. For other I find of jury-trial (Minn. 1994), a format in the commission's use of which the ma N.W.2d 567 "jury,” making relies, its determination. As jority distinguishable procedur also panel composed is not cross commission ally, it the denial of a because concerned community; subject section of the nor is it summary judgment, id. at motion dire and strikes that would eliminate vоir substantively, appli because it concerned the jury. from the The use of biased individuals immunity Rights cation of official to a Human attempt -"hybrid jury” an invalid such a claim, id., Act and because it concerned offi jury procedure and its simulate then claim cers who acted in bad faith. Id. at 573. virtues. around, gathering finding sion’s of a people, people other violation of rule 6.01 in that if my experience it is officer highly [and] [an this case to be dubious. issuing a citation instead of someone
is] equally At least dubious is the commis- jail, they’re so bringing them to because sion’s finding pretextual behavior on the upset, they that a lot of times won’t re- part provides of the officers. The record and, sir, my experience, given “In spond,” explanation insufficient or support for the day, I his behavior that do not believe he pretextual behav- responded would have to а citation. I’ve ior, only confirms what the officers long this for a time.” doing been majority testified and the concedes: things Kelly what sort of was Asked was defiant and legal dismissive Dubay yelling screaming, Officer testi- process. Though briefly commission fied, racist, we were that we were “[T]hat pacified by noted that was the offi- him, know, brutalizing you ... and he significant cers after a struggle, it in no made some comments Officer Villamor way plain rebutted the fact that Asian that his white mas- [an American] defiant extremely angry and remained ” him.... ters had brainwashed Officer *15 the time of arrest. The commission must Dubay answered “No” when asked if he provide adequate explanations for its fac- any racially derogatory remarks “[made] tual findings. Light Minn. Power & v.Co. Kelly” any to Mr. or police [other] “[heard] Comm’n, Minn. Pub. Utils. 342 N.W.2d any derogatory officers make remarks to 324, (Minn.1983). 330 There is no ade- Kelly”. Dubay Mr. Both and an- Villamor quаte explanation for the finding that the they swered “No” when if “use[d] asked officers’ stated for taking reasons a defiant any Kelly force on Mr. because of his disruptive suspect jail and to merely were race”; Kelly any differently Mr. “treat[ed] pretextual. [they] than would have treated a nonAfri- Moreover, a finding may circumstances”; can-American under those be reversed when “combination of dan- Kelly Mr. because of his “arrest[ed] ger signals suggestfe] ... the [commis- race.” has not taken a hard look at sion] A suspect’s yelling pro defiance and can problems salient and the decision lacks vide the basis for an officer’s reasonable articulated standards and reflective find- See, ignored. belief that a citation will be ings.” v. Cable Commc’ns Bd. Nor-West T.L.S., e.g., In re 713 N.W.2d Welfare of 658, P’ship, Cable Commc’ns 356 N.W.2d (no 877, (Minn.App.2006) 881-82 rule 6.01 (Minn.1984) omitted). (quotations 669 Be- violation in аrrest of student who was pretext cause the satisfies nei- shrieking swearing to refused ther reason nor the substantial-evidence building).3 majority leave school con should, view, in my test it be reversed. cedes that being “continued to resist assuming Even that there was a viola- squad handcuffed and refused to enter the 6.01, car”—a show of defiance. tion of Minn. R.Crim. P. a review of Given precedent, I connecting T.L.S. consider the commis the record reveals no evidence license, removing 3. Violations of rule 6.01 have been a basis for er's his hands after excluding evidence obtained incident ar keep squad being directed them on the See, Richmond, e.g., rests. State v. 602 car), (Minn. 2000); review denied 18 Jan. 647, 1999) (Minn.App. (finding N.W.2d 653 vi 245, Carver, v. 249-50 State suspect olation when conduct of arrested for 1998) (Minn.App. (finding where violation sus answering a misdemeanor was limited to not misdemeanor). pect petty was arrested for questions, immediately producing not a driv- any motive. racial the officers’ behavior COHASSET, Appellant, contrast, CITY found “substantial OF
In Richardson because of race discrimination evidence of v. suspect’s] uncontradicted ... [from ... that two officers testimony ... POWER, Operating MINNESOTA racially derogatory him in addressed Allete, Inc., Division of Richardson, 307 Minn. at manner.” Respondent. at officers here used any other language no epithets No. A09-572. racial discrimination. imply
could Appeals Court of of Minnesota. any quantitative data or produce did not expert testimony linking their actions to 12, 2010. Jan. fact, only racial racial animus. from him
slurs in record came
self, racially tinged used repeatedly who Asian-Ameri
insults and referred
can as a Villamor “white slave.” Officer test requires dis
The “so variance” “'probable explana be the
crimination to Richardson,
tion.” 307 Minn. at added). (emphasis
N.W.2d at 202 Under standard, I find it essential nebulous *16 alleging discrimination show those supporting
some evidence fair inference alleged improper
of the officers’ discrimi
natory motive. record indi Where
cates no nexus between officer’s con motive, a rights
duct civil claim and such prevail.
cannot that, any
I conclude absent evidence to
support an inference of discrimination or a pretext, ruling the commission’s will an exercise of rather than its “[its]
judgment.” In re Max Schwartzman &
Sons, (Minn. Inc.,
App.2003) (holding that agency decision is
arbitrary capricious when it reflects than agency’s judgment). will rather its reason,
For ruling I would reverse the “unsupported by
as substantial evidence”
and “arbitrary capricious.” Minn.Stat. (f). 14.60(e),