Armstrong v. City of Minneapolis

• Decision Date: 11 March 2021
• Docket Number: Case No. 20-cv-01645 (SRN/DTS)
• Citation: 525 F.Supp.3d 954
• Parties: Nekima Levy ARMSTRONG, Marques Armstrong, Terry Hempfling, Rachel Clark, and Max Fraden, on behalf of themselves and others similarly situated, Plaintiffs, v. CITY OF MINNEAPOLIS; Minneapolis Chief of Police Medaria Arradondo, in his individual and official capacity; Minneapolis Police Lieutenant Robert Kroll, in his individual and official capacity; Minnesota Department of Public Safety Commissioner John Harrington, in his individual and official capacity; Minnesota State Patrol Colonel Matthew Langer, in his individual and official capacity; and John Does 1-2, in their individual and official capacities, Defendants.
• Court: U.S. District Court — District of Minnesota

525 F.Supp.3d 954

Nekima Levy ARMSTRONG, Marques Armstrong, Terry Hempfling, Rachel Clark, and Max Fraden, on behalf of themselves and others similarly situated, Plaintiffs,

v.CITY OF MINNEAPOLIS; Minneapolis Chief of Police Medaria Arradondo, in his individual and official capacity; Minneapolis Police Lieutenant Robert Kroll, in his individual and official capacity; Minnesota Department of Public Safety Commissioner John Harrington, in his individual and official capacity; Minnesota State Patrol Colonel Matthew Langer, in his individual and official capacity; and John Does 1-2, in their individual and official capacities, Defendants.

Case No. 20-cv-01645 (SRN/DTS)

United States District Court, D. Minnesota.

Signed March 11, 2021

Ahmed J. Davis, Fish & Richardson, 1000 Maine Avenue Southwest, Suite 1000, Washington D.C., 20024; Clare A. Diegel, Isabella Salomao Nascimento, and Teresa J. Nelson, ACLU of Minnesota, P.O. Box 14720, Minneapolis, MN 55414; Excylyn Hardin-Smith, Fish & Richardson, 7 Times Square, Twentieth Floor, New York, NY 10036; and Michael E. Florey and Veena Tripathi, Fish & Richardson P.C., 60 South Sixth Street, Suite 3200, Minneapolis, MN 55402, for Plaintiffs.

Heather Passe Robertson, Kristin R. Sarff, and Sharda R. Enslin, Minneapolis City Attorney's Office, 350 South Fifth Street, Suite 210, Minneapolis, MN 55415, for the City of Minneapolis and Medaria Arradondo.

Joseph A. Kelley and Kevin M. Beck, Kelly & Lemmons, P.A., 2350 Wycliff Street, Suite 200, St. Paul, MN 55114-1331, for Robert Kroll.

Joseph D. Weiner, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101, for John Harrington and Matthew Langer.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON,United States District Judge

This matter is before the Court on the Motions to Dismiss [Doc. Nos. 23, 29, 33] filed by the City of Minneapolis and Medaria Arradondo (collectively, "the City Defendants"), John Harrington and Matthew Langer (collectively, "the State Defendants"), and Robert Kroll. Based on a review of the files, submissions, and proceedings herein, and for the reasons below, the Court GRANTS in part and DENIES in part the City Defendants’ motion, GRANTS the State Defendants’ motion, and DENIES Defendant Kroll's motion.

I. BACKGROUND

On May 25, 2020, George Floyd tragically died in the custody of the Minneapolis Police Department, triggering widespread demonstrations across the country. In the following days, protesters took to the streets of Minneapolis—and in some cases, there were riots, as looters and arsonists embedded themselves in groups of otherwise peaceful protesters. This litigation—and several similar lawsuits—arises from the state and municipal response to the challenging circumstances of the George Floyd protests. Plaintiffs are several Minneapolis residents who participated peacefully in the protests. They allege that members of the Minneapolis Police Department ("MPD") and the Minnesota State Patrol ("MSP") responded to the protests with excessive force, in violation of their constitutional rights. Namely, Plaintiffs allege that they, and other peaceful protesters like them, were subjected to tear gas, rubber bullets, and other "less-lethal munitions," without warning and despite the peaceful nature of their demonstrations. Accordingly, Plaintiffs seek relief under 42 U.S.C. § 1983 for violations of their First, Fourth, and Fourteenth Amendment rights.

Defendants are the City of Minneapolis; Medaria Arradondo, in his individual capacity and in his capacity as the MPD's Chief of Police; Minnesota Department of Public Safety Commissioner John Harrington and MSP Colonel Matthew Langer, in their individual and official capacities; Lieutenant Robert Kroll, the president of the Police Officers Federation of Minneapolis ("the Federation"); and the John Doe officers involved in the use of force against Plaintiffs.

Defendants move to dismiss the claims against them. The City Defendants argue that the Amended Complaint fails to state a claim under Monell v. Department of Social Services of City of New York , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and that the claims against Chief Arradondo in his individual capacity are not well-pleaded. The State Defendants argue that the claims against them are not well-pleaded, are barred by the Eleventh Amendment and qualified immunity, and that Plaintiffs lack standing. And Kroll argues that the allegations against him pertain to his actions as president of the Federation, a role in which he did not act under color of state law, and that the First Amendment bars the claims against him.

Against this backdrop, the Court turns to the record pertinent to Defendants’ motions. The Court will begin with Plaintiffs’ involvement in the George Floyd protests and the alleged police misconduct they witnessed, and will then examine the allegations related to Kroll's involvement in the MPD's response to the protests.

A. Nekima Levy Armstrong and Marques Armstrong

On May 26, 2020, Plaintiffs Nekima Levy Armstrong and Marques Armstrong joined protesters gathered at the corner of 38th Street and Chicago Avenue in Minneapolis. (Am. Compl. [Doc. No. 19], at ¶ 19.) The protesters, numbered in the "thousands," then marched roughly 2.5 miles to Minneapolis's Third Police Precinct, and were largely peaceful. (Id. ¶ 20.) After arriving at the Third Precinct, at around 7:30 p.m., the protesters began to leave the area until approximately 50 to 100 protesters remained. (Id. ¶ 21.) The Armstrongs remained near these protesters as they waited for their transportation to arrive. (Id. ) It is alleged that a "smaller group" of individuals at the Third Precinct were "throwing rocks and water bottles behind the Third Precinct." (Id. )

Around 8:00 p.m., several squad cars carrying MPD officers dressed in riot gear arrived. (Id. ¶ 22.) It is alleged that these officers "began firing less-lethal munitions and chemical irritants—including tear gas and flashbangs" at the protesters without issuing "any warning or orders to disperse." (Id. ) The MPD officers allegedly did not limit their fire to the groups of protesters throwing rocks and water bottles behind the Third Precinct. (Id. ¶ 23.)

Although the Armstrongs were not injured that night, they allegedly witnessed "groups of protesters running from the areas around the Third Precinct and observed the injuries they sustained." (Id. ¶ 24.)

On May 27, 2020, the Armstrongs attended a second night of protests at the Third Precinct. (Id. ¶ 25.) After their experiences the previous night, they wore "protective gear like goggles and helmets." (Id. ¶ 26.) When the Armstrongs and other protesters arrived at the Third Precinct, they saw MPD officers standing on the building's roof, and officers dressed in riot gear and holding "impact weapons and canisters of tear gas." (Id. ¶ 27.) Although the protests were "largely peaceful," it is alleged that sometime between 7:30 and 8:18 p.m. MPD officers began spraying tear gas into the crowd—without issuing orders to disperse or other warnings. (Id. ¶¶ 25, 28.) Marques Armstrong allegedly witnessed MPD officers "take aim and fire less-lethal munitions at a number of individuals who were protesting peacefully," and saw the MPD "blanket the crowd of peaceful protesters with tear gas." (Id. ¶ 29.) The Armstrongs allege that they were peacefully demonstrating, but were sprayed with tear gas. (Id. ¶ 30.) Struggling to breathe, they ran from the Third Precinct. (Id. ) It is alleged that MPD officers continued to employ chemical irritants, less-lethal munitions, and flashbangs throughout that evening. (Id. ¶ 35.)

B. Terry Hempfling and Rachel Clark

On May 27, 2020, Plaintiff Terry Hempfling joined demonstrators at the Third Precinct and observed MPD officers on the building's roof, but did not see officers near the protesters outside the building. (Id. ¶¶ 45-46.) Hempfling alleges that MPD barricades surrounded the building, and a number of protesters "sat and stood peacefully in front of these barricades." (Id. ¶ 46.) It is alleged that MPD officers fired tear gas at the protesters sitting and standing peacefully in front of the barricades, as well as "rubber bullets and/or less-lethal munitions," without warning or an order to disperse. (Id. ¶¶ 48-49.) Hempfling, standing thirty to forty feet away from the barricades, was hit in the back of her right arm by the ricochet of a rubber bullet or less-lethal munition. (Id. ¶¶ 50-51.)

On May 29, 2020, Hempfling and Plaintiff Rachel Clark joined protesters near Minneapolis's Fifth Precinct. (Id. ¶ 55.) May 29 marked the first night of a curfew imposed by Governor Tim Walz, and Hempfling and Clark remained at the protest after the curfew started. (Id. ¶ 58.) Hempfling and Clark observed MPD officers on the roof of the building and on the ground around the building's perimeter. (Id. ¶ 57.) It is alleged that the MPD did not interact with the protesters until 11:30 p.m., when they announced that the protesters were out past the curfew and ordered them to disperse. (Id. ¶ 59.) Hempfling and Clark allegedly began to disperse immediately, and crossed the street to the bicycles they had secured nearby. (Id. ¶ 60.) Hempfling and Clark allege that as they began to unlock their bicycles, they saw two rows of MPD officers approaching them from opposite directions, "leaving them no means of escape, in a tactic known as ‘kettling.’ " (Id. ¶ 61.) Hempfling and Clark observed only one other protester on the street between the rows of MPD officers. (Id. ¶ 62.)

Within a couple minutes of the dispersal announcement and without further warning, MPD officers allegedly began to fire tear gas, rubber bullets, and less-lethal munitions at Hempfling, Clark, and the other protester on the street. (Id. ¶ 63.) Trapped between the rows of advancing officers and disoriented by the tear gas, Hempfling and Clark abandoned their bicycles and climbed over a nearby fence. (Id. ¶¶ 64-65.)...