Baribeau v. City of Minneapolis
| Decision Date | 12 September 2008 |
| Docket Number | Civ. No. 06-4953 (JNE/SRN). |
| Citation | 578 F.Supp.2d 1201 |
| Parties | Jessica BARIBEAU; Jamie Jones; Kate Kibby, on her own behalf and as guardian for her minor brother Kyle Kibby; Raphi Rechitsky; Jake Sternberg; and Christian Utne, Plaintiffs, v. CITY OF MINNEAPOLIS, Inspector Jane Harteau, Sgt. Tim Hoeppner, Sgt. E.T. Nelson, Sgt. John Billington, Sgt. D. Pommerenke, Sgt. Erica Christensen, Officer Tim Merkel, Officer Roderic Weber, Officer Sherry Appledorn, Officer Jeanine Brudenell, Officer Robert Greer, Officer Jane Roe (whose true name is unknown), Officer Jane Doe (whose true name is unknown), County of Hennepin, Sean Kennedy, Becky Novotny, Sam Smith (whose true name is unknown), and Officer Mary Jones (whose true name is unknown), Defendants. |
| Court | U.S. District Court — District of Minnesota |
Jordan S. Kushner, Esq., Law Office of Jordan S. Kushner, appeared on behalf of Plaintiffs Jessica Baribeau; Jamie Jones; Kate Kibby, on her own behalf and as guardian for her minor brother Kyle Kibby; Raphi Rechitsky; Jake Sternberg; and Christian Utne.
James A. Moore, Esq., Minneapolis City Attorney's Office, appeared on behalf of Defendants City of Minneapolis, Inspector Jane Harteau, Sgt. Tim Hoeppner, Sgt. E.T. Nelson, Sgt. John Billington, Sgt. D Pommerenke, Sgt. Erica Christensen, Officer Tim Merkel, Officer Roderic Weber, Officer Sherry Appledorn, Officer Jeanine Brudenell, Officer Robert Greer, Officer Jane Roe (whose true name is unknown), and Officer Jane Doe (whose true name is unknown).
Michael B. Miller, Esq., Hennepin County Attorney's Office, appeared on behalf of Defendants County of Hennepin, Sean Kennedy, Becky Novotny, Sam Smith (whose true name is unknown), and Officer Mary Jones (whose true name is unknown).
During the Minneapolis Aquatennial in 2006, Plaintiffs1 were arrested in downtown Minneapolis after participating in what they describe as a "zombie dance party," an event that involved wearing fake blood on their faces, playing music and amplified spoken phrases from improvised sound systems, and other activities they claim were meant to call attention to the shortcomings of consumerist culture. Plaintiffs assert various claims arising out of their detention, search, and arrest. They have brought suit under 42 U.S.C. § 1983 (2000), as well as for claims of false imprisonment, assault, battery, and defamation, against Defendants City of Minneapolis, Inspector Jane Harteau, Sgt. Tim Hoeppner, Sgt. E.T. Nelson, Sgt. John Billington, Sgt. D. Pommerenke, Sgt. Erica Christensen, Officer Tim Merkel, Officer Roderic Weber, Officer Sherry Appledorn, Officer Jeanine Brudenell, Officer Robert Greer, Officer Jane Roe (whose true name is unknown), and Officer Jane Doe (whose true name is unknown) (collectively, the City Defendants). In addition, Plaintiff Sternberg asserts various claims under section 1983, as well as claims for disability discrimination, against Defendants County of Hennepin, Sean Kennedy, Becky Novotny, Sam Smith (whose true name is unknown), and Officer Mary Jones (whose true name is unknown) (collectively, the County Defendants). The case is before the Court on Defendants' motions for summary judgment. While the Court doubts, especially with the benefit of hindsight, that the arrests were strictly necessary, for the reasons stated below, the Court grants the motions of the Defendants.
At about 6:00 p.m. on July 22, 2006, during the 2006 Minneapolis Aquatennial celebration, Plaintiffs gathered at the Nicollet Mall light rail station in downtown Minneapolis in order to walk and dance through downtown Minneapolis while pretending to be zombies. They refer to this activity as a "zombie dance party." To simulate the sickly appearance of zombies, some Plaintiffs had applied white powder and fake blood to their faces and wore dark makeup around their eyes. Plaintiffs left the light rail station and made their way to the intersection of South Seventh Street and Nicollet Avenue, alternately dancing and walking in a lurching, zombie-like fashion.
Plaintiffs carried four backpacks and bags with them. These bags held sound systems that had been assembled from second-hand parts. Three bags contained some variety of speakers for playing music. Attached to the outside of one bag, for example, was a gallon paint can with speakers fitted onto the round ends of the can. The fourth bag contained an iPod, a portable phone, and a radio device, and was attached to an exterior antenna. Plaintiffs used the radio device and antenna to broadcast a low-power radio signal, enabling the speakers in the other bags to play music from the iPod and messages spoken into the portable phone. The exterior of the bag with the paint can featured a red button attached to a wire running into the bag; this button functioned as an on/off switch for the music. The bag with the antenna also had wires protruding from it, and wires would have been visible on the other bags when they were opened to make adjustments to the sound system.
Plaintiffs assert dual purposes for participating in the zombie dance party. First, they intended to entertain themselves and others. Second, they intended the zombie dance party as social commentary or performance art related to what they believed to be the mindless nature of consumer culture. Accordingly, Plaintiffs used the sound system not only to play music but also to broadcast silly mock advertisements like "brain check on aisle five," "get your brains here," and "brains." From the antenna, Plaintiffs hung a homemade sign with the word "brains" on it. Plaintiffs invited bystanders to join them, and at least one person did so for a brief period of time.
In her deposition, Plaintiff Jones generally denied that any bystanders were disturbed or scared by Plaintiffs, though she did admit that "a couple of people that maybe I saw that would just look at us weird." She further testified that Plaintiffs probably walked close to other pedestrians—within three feet—but she attributed this to the limited space available for travel on the sidewalks rather than an intention to approach or scare others. Other Plaintiffs, in their deposition testimony, denied any intention to block the paths of pedestrians and claimed that they did not observe anyone who was disturbed or scared by their presence or who stepped into the street to avoid them. In an affidavit submitted by Plaintiffs, Sara Brenner, a bystander who observed Plaintiffs' zombie dance party, states that she "observed [Plaintiffs] being very sensitive to kids that they passed, turning away if they looked frightened." Several photographs in the record reveal that several Plaintiffs meddled with the Mary Tyler Moore statue on Nicollet Avenue, touching it in an unusual manner.
At about 7:00 p.m., Officers James F. Archer and Chad L. Martin received word that someone had called the police to report that individuals in zombie makeup were playing music and approaching or bothering pedestrians. Archer and Martin, traveling by squad car, caught up with Plaintiffs near the intersection of South Seventh Street and Nicollet Avenue. Defendants Merkel and Weber, responding to the same call, arrived on foot sometime after Archer and Martin. Martin, in his deposition, asserted that as he arrived he observed Plaintiffs walking around and coming close to other pedestrians who then "scoot[ed] away" from Plaintiffs.
The officers called Plaintiffs together, mentioned the complaint, asked them to turn down their music, and instructed them not to approach, scare, or touch other pedestrians. Archer told Plaintiffs that they had to behave or risk being arrested for disorderly conduct in the future. Plaintiffs informed the officers that they were holding a zombie dance party and making a statement about consumerism.
During the encounter with Plaintiffs, both Archer and Merkel observed that there appeared to be electronic equipment or speakers in, or attached to, at least one of Plaintiffs' bags, and, according to their deposition testimony, they understood this equipment to be the source of Plaintiffs' music. Archer concluded that it would not have been appropriate to arrest Plaintiffs at that time, and Merkel stated in his deposition that, while he was annoyed by Plaintiffs, he did not believe they had done anything illegal. Archer contacted the dispatcher to report that he had investigated the call, and he indicated to the dispatcher that Plaintiffs were a performance art group.
After the encounter with the police, Plaintiffs continued on largely as they had before, stopping near a parking garage to dance and take photographs. Sternberg stated in his deposition testimony that, during this time, he never saw anyone who appeared afraid of Plaintiffs or who stepped into the street to avoid them. Plaintiffs eventually arrived at the intersection of Sixth Street and Hennepin Avenue. On the sidewalk near the intersection, someone playing drums had attracted a crowd of people, and Plaintiffs stopped to observe the show, joining the crowd. Plaintiffs turned off their music, and Sternberg used Plaintiffs' sound equipment to amplify the drumming. In his deposition, Sternberg stated that, at this time, Plaintiffs were observed by at least one police officer who did not treat them as suspicious.
After their encounter with Plaintiffs, Merkel and Weber continued their patrol on foot and eventually met up with Defendant Hoeppner near the intersection of Seventh Street and Hennepin Avenue. Hoeppner, who was working in the "detox van," told Merkel and Weber that he had driven past the intersection of Sixth Street and Hennepin where he had observed individuals now known to have been Plaintiffs who were wearing ghoulish makeup and had a "grunge look." Hoeppner expressed a concern that the people he had seen were obstructing the sidewalk...
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Baribeau v. City of Minneapolis
...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 observe......
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Maxwell v. Olmsted Cnty.
...require "jails or prisons to take actions that unduly jeopardize their safety and security." See Baribeau v. City of Minnneapolis, 578 F. Supp. 2d 1201, 1221 (D. Minn. 2008) (Ericksen, J.), aff'd in part and rev'd on other grounds, 596 F.3d 465, 484 (8th Cir. 2010). There is no dispute betw......