Armstrong v. Mille Lacs County Sheriffs Dept.

• Decision Date: 23 August 2002
• Docket Number: Civ. No. 98-2658(RLE).
• Citation: 228 F.Supp.2d 972
• Parties: Jeffrey E. ARMSTRONG, individually, and William Lawrence, d/b/a Native American Press/Ojibwe News, Plaintiffs, v. MILLE LACS COUNTY SHERIFFS DEPARTMENT; Mille Lacs County; Dennis Boser, individually and in his official capacity as Sheriff of Mille Lacs County; Mille Lacs Tribal Police Department; Mille Lacs Band of Chippewa Indians; and Marc R. Gabiger, Defendants.
• Court: U.S. District Court — District of Minnesota

228 F.Supp.2d 972

Jeffrey E. ARMSTRONG, individually, and William Lawrence, d/b/a Native American Press/Ojibwe News, Plaintiffs, v. MILLE LACS COUNTY SHERIFFS DEPARTMENT; Mille Lacs County; Dennis Boser, individually and in his official capacity as Sheriff of Mille Lacs County; Mille Lacs Tribal Police Department; Mille Lacs Band of Chippewa Indians; and Marc R. Gabiger, Defendants.

Civ. No. 98-2658(RLE).

United States District Court, D. Minnesota.

August 23, 2002.

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Ronald H. Usem, Craig D. Greenberg, Huffman Usem Saboe Crawford & Greenberg, Mpls, MN, Jeffrey D. Armstrong, Bemidji, MN, William Lawrence, Native American Press/Ojibwe News, St Paul, MN, for plaintiff.

Roger Lee Rowlette, Jenell M. Matthews, Johnson & Lindberg, Mpls, MN, Joseph B. Marshall, Marshall & Assoc, Circle Pines, MN, for defendant.

ERICKSON, United States Magistrate Judge.

At Duluth, in the District of Minnesota, this 23rd day of August, 2002.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, as authorized by Title 28 U.S.C. § 636(c), upon the Motion of the Mille Lacs Tribal Police Department, Mille Lacs Band of Chippewa Indians, and Marc R. Gabiger (collectively, "the Tribal Defendants") for Summary Judgment.¹ A Hearing on the Motion was scheduled for April 11, 2002, but the parties agreed, prior to the Hearing, to submit the Motion on the Record. For purposes of this Motion, the Plaintiffs Jeffrey E. Armstrong ("Armstrong"), and William Lawrence ("Lawrence"), doing business as the Native American Press/Ojibwe News,² appeared by Craig D. Greenberg, Esq., and the Tribal Defendants appeared by Joseph B. Marshall, Esq.

For reasons which follow, we grant the Tribal Defendants' Motion for Summary Judgment.

II. Factual and Procedural Background

This action arises from the arrest of Armstrong, for trespassing, in violation of Minnesota Statutes Section 609.605,³ which occurred on premises that were within the boundaries of the Mille Lacs Indian Reservation, and just outside a hotel meeting room, that had been rented by the Minnesota Chippewa Tribe ("MCT"), for the purpose of conducting a Tribal Executive Committee ("TEC") Meeting. See, Ex. 1 to Deposition of Norman Deschampe, attached to Affidavit of Joseph B. Marshall ("Ex.1"). The TEC, a twelve-member committee, is comprised of the Chairman, and the Secretary of the Treasury, of each of the six reservations of the MCT,⁴ and serves as the governing body of the MCT. See, Deposition of Norman Deschampe, at 8-9, Ex. I to Transmittal Affidavit of Craig D. Greenberg, Esq. ("Deschampe Depo."). The underlying facts are not seriously in dispute.

On October 22, 1997, the TEC scheduled a meeting in a room at the Grand Casino Mille Lacs Hotel, which is located in Garrison, Minnesota, on Reservation land. See, Deschampe Depo., at 23-29. The room was reserved from 9:00 o'clock a.m., until 11:00 o'clock a.m. See, Ex. 1. At the time of the meeting, Norman Deschampe ("Deschampe"), who was the President of the MCT and, as President, who chaired the TEC meetings, was responsible for the day-to-day operations of the MCT. Id. at 7-8.

The meeting on October 22, 1997, was apparently scheduled to commence at approximately 9:00 or 10:00 o'clock a.m. The TEC Meeting Notes reflect that, prior to the start of the "regular meeting," "Norman asked that all attorneys, press and non-Indians * * * leave the meeting." Ex. 3 to Deposition of Norman Deschampe, attached to Affidavit of John B. Marshall ("Ex. 3"). Deschampe believes that it was within his authority to conduct a closed session of the MCT, because it occurred prior to the start of the "regular meeting." Deschampe Depo., at 54. He could not identify any provision of the MCT Tribal Constitution, however, which provided him such authority, and he did not believe "Robert's Rules of Order," which governs Tribal Meetings, applied, since the "regular meeting" had not been called to order. Id. The "regular meeting" then commenced at 11:35 o'clock a.m., and concluded at 12:40 o'clock p.m. Id.

As already noted, at one point in the TEC proceedings, apparently prior to the "regular meeting," and as noted in the Minutes of the meeting, Deschampe requested that all attorneys, press and non-Indian persons leave the meeting, in order that the TEC could discuss matters pertaining to the settlement of a legal action, in which the MCT, and the United States Government, were then involved. See, Deschampe Depo., at 42-44; Ex. 3. Armstrong, who is a reporter employed by the Native American Press/Ojibwe News, and who was in attendance at the TEC meeting, did not leave the meeting.

According to Armstrong, who is not a Native American, he had been dispatched by his employer to report on the meeting. Deposition of Jeffrey D. Armstrong, at 31-32, Ex. H to Transmittal Affidavit of Craig D. Greenberg, Esq. ("Armstrong Depo."). He claims that he did not hear Deschampe, or anyone else, ask all non-Indians, including reporters, to leave the room, although he does not dispute that the request was made. Id. at 33. He also does not recall witnessing any number of individuals leaving the room. Id. He does claim, though, that, prior to the commencement of the meeting, he was questioned by Deschampe as to whether he was an "Indian." Id. Armstrong responded that his Native American status was none of Deschampe's business, at which time, according to Armstrong, Deschampe asked him to leave the room. Id. at 34. Armstrong made no move to leave but, rather, said something to the effect that he was not going to voluntarily comply with the illegal request.⁵ Id.

The Defendant Marc R. Gabiger ("Gabiger") is an officer with the Mille Lacs Tribal Police Department, who has worked for the department full time, since May of 1997. Deposition of Marc R. Gabiger, at 13-14; Ex. F to Transmittal Affidavit of Craig D. Greenberg, Esq. ("Gabiger Depo."). He has been POST-licensed as a police officer since that time. Id. at 16. He was dispatched to the TEC meeting, on October 22, 1997, in order to provide security for the meeting. Id. at 23-24; see also, Ex. 2 to Deposition of Norman Deschampe, attached to Affidavit of John B. Marshall ("Ex.2")("Grand Casino Mille Lacs Banquet Event Order" noting that the meeting would involve two security, and two Tribal police).

According to Gabiger, there were quite a few people "milling" around in and around the meeting room, and nobody was checking any identifications, or asking about Tribal status. Gabiger Depo., at 29-30. Before the actual start of the meeting, the TEC president — Deschampe — announced that the TEC wanted to discuss some Tribal issues, so he asked all non-Indians, press and lawyers to leave the room. Id. at 31. Gabiger recalls a number of individuals leaving the room. Id. at 32.

Gabiger recalls Armstrong remaining in the room, and he watched as Deschampe approached Armstrong. Id. at 33. According to Gabiger, Deschampe then asked Armstrong if he was a Native American, to which Deschampe received a negative response, and then queried whether he was a reporter, although Gabiger cannot recall Armstrong's response to that question. Id. Gabiger then heard Deschampe ask Armstrong to leave the room, but Armstrong just remained sitting.⁶ Id.

Thereafter, Gabiger approached Armstrong, and informed him that, if he did not immediately leave the meeting room, he would be arrested. Id. at 34-35; see also, Armstrong Depo., at 34-35, 38. Gabiger admits that he did not know, at that point, whether Armstrong was legally entitled to be in the room, but he explains that, since Armstrong was asked to leave, Gabiger believed he did not have a right to be there. Gabiger Depo., at 35, 43. According to Gabiger, to his knowledge, Deschampe was the ultimate authority for the meeting, Deschampe had asked Armstrong to leave the room, and the room had been rented by the TEC. Id. at 36, 54-55. Therefore, in Gabiger's opinion, based on his training and experience, Armstrong was trespassing. Id. at 40-41.

Once Gabiger ordered Armstrong to leave the room, and when Armstrong made no attempt to leave, Gabiger effected an arrest, and escorted Armstrong into the hotel lobby. Id. at 37. Gabiger did not discuss the decision to arrest Armstrong with Deschampe, or with anyone else. Id. at 38. Rather, Gabiger explained that it was his normal practice to arrest, rather than cite, individuals for trespass. Id. at 44. He further did not question whether Armstrong had a right to be in the meeting, and Gabiger did no independent investigation into whether Armstrong had a "claim of right." Id. at 38, 40, 54. Gabiger did not question Armstrong about his identity, or the reason for his being at the meeting. Id. at 40.

Armstrong voluntarily left with Gabiger, never raised his voice, and did not exhibit any hostility toward Gabiger, or anyone else. Id. at 37-38. When in the hotel lobby, Gabiger frisked Armstrong, and handcuffed him in the presence of a number of persons, who were also in the lobby. Id. at 41. Armstrong was then escorted to Gabiger's squad car, and was driven thirty-four miles to the Mille Lacs County Sheriff's Department, in Milaca, Minnesota, where he was detained in the Mille Lacs County Jail on charges of trespass. Id. at 47. Gabiger instructed the jailer to detain Armstrong for about four hours, at which time he could be released on his own recognizance. Id. at 51; see also, Ex. E to Transmittal Affidavit of Craig D. Greenberg, Esq. ("Ex.E"). Gabiger testified that his reason for the instruction was to ensure that Armstrong would not return to the meeting and commit the same act. Gabiger Depo., at 51.

Ultimately, Mille Lacs County charged Armstrong with a misdemeanor trespass. See, Ex. E. The charges were later dropped, on April 27, 1998, by Order of the State District Court. See, Ex. A to Second Transmittal Affidavit...