Baribeau v. City of Minneapolis, No. 08-3165.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtPer Curiam
Citation596 F.3d 465
PartiesJessica 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.
Docket NumberNo. 08-3165.
Decision Date24 February 2010
596 F.3d 465
Jessica 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, Eighth Circuit.
Submitted: June 9, 2009.
Filed: February 24, 2010.

[596 F.3d 470]

Jordan S. Kushner, argued, Minneapolis, MN, for Appellant.

Michael Boerner Miller, argued, Minneapolis, MN, for Appellee, County of Hennepin, etc.

James Anthony Moore, argued, Minneapolis, MN, for Appellee, City of Minneapolis, etc.

Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.

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"), 42 U.S.C. § 12101 et seq., and the Minnesota Human Rights Act ("MHRA"), Minn.Stat. § 363A.01 et seq. The district court granted summary judgment in favor of the City and its officers on the plaintiffs' claims, and in favor of the County and its employees on Sternberg's claims. We affirm in part and reverse and remand in part.

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

596 F.3d 471

an iPod, a radio transmitter, an antenna, and a wireless phone handset. The others contained radio receivers, amplifiers, and speakers. Some of the equipment, including wiring, was visible on the outside of the bags. As the plaintiffs "danced" their way down the street, they played music from the iPod, through the radio devices, and over the speakers. They also broadcasted announcements such as "get your brains here" and "[b]rain cleanup in Aisle 5" by speaking into the wireless phone handset. The plaintiffs came within three feet of bystanders, and received "weird" looks from some they passed.

At around 7 p.m., Minneapolis police received word of an anonymous 911 call complaining about a 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, Hoeppner 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

596 F.3d 472

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. Minn.Stat. § 609.712, subd. 5(1).

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 name. Jail officials noted that Sternberg had metal accessories in his hair, and placed him in a holding cell where he could remove them. They also noted that Sternberg had a prosthetic left leg, from the knee down, that contained metal parts. After discussing his medical condition with Sean Kennedy, the nurse on duty, Sternberg was taken to another room, where his prosthetic leg was confiscated by Becky Novotny, a detention deputy. Kennedy explained to Sternberg that the leg was seized out of concern that it could be used as a weapon. Sternberg agreed to provide his last name in order to finish the booking process and obtain a property receipt for his leg. Sternberg was given a wheelchair and was eventually placed in an ADA-compliant cell.

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 42 U.S.C. § 1983 on numerous federal claims. Their complaint included allegations that they were arrested "without any cause to believe that they had committed a crime," in violation of the Fourth Amendment, and that they were seized in retaliation for "exercising their basic and fundamental right to engage in artistic and political expression," in violation of the First Amendment. The plaintiffs also brought several state-law causes of action, including a claim of false imprisonment.

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.

596 F.3d 473

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'...

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298 practice notes
  • Green v. State , No. 4:06CV1667RWS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • August 17, 2010
    ...right; and (2) the right was734 F.Supp.2d 832clearly established at the time of the deprivation." Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir.2010). Under current Supreme Court precedent, I may exercise my "sound discretion" to decide "which of the two prongs of the qualifie......
  • Thunderhawk v. Cnty. of Morton, Civil No.: 1:18-cv-00212
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    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • September 1, 2020
    ...show a causal connection between a defendant's retaliatory animus and [plaintiff's] subsequent injury.’ " Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010). "Retaliation need not have been the sole motive, but it must have been a ‘substantial factor’ in" the decision[.]" Id......
  • Livers v. Schenck, Nos. 11–1877
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 8, 2012
    ...amendment only restrains the federal government and none of the appellants are federal employees. See Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir.2010).9C. Coerced Confession and Evidence Fabrication Intentionally or recklessly failing to investigate other leads or manufactu......
  • Waters v. Madson, No. 17-3827
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 11, 2019
    ...officers violate the Fourth Amendment when they conduct an arrest without a warrant or probable cause. Baribeau v. City of Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010) (per curiam). However, in order to effect a temporary investigative detention, officers need only reasonable suspicion ba......
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298 cases
  • Green v. State , No. 4:06CV1667RWS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • August 17, 2010
    ...right; and (2) the right was734 F.Supp.2d 832clearly established at the time of the deprivation." Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir.2010). Under current Supreme Court precedent, I may exercise my "sound discretion" to decide "which of the two prongs of the qualifie......
  • Livers v. Schenck, Nos. 11–1877
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 8, 2012
    ...amendment only restrains the federal government and none of the appellants are federal employees. See Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir.2010).9C. Coerced Confession and Evidence Fabrication Intentionally or recklessly failing to investigate other leads or manufactu......
  • Jones v. McNeese, No. 4:09CV3264.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • July 5, 2012
    ...a constitutional ... right; and (2) the right was clearly established at the time of the deprivation.’ ” Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir.2010); see Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir.1997) (framing the “primary qualified immunity issue of law” as......
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    • United States District Courts. 8th Circuit. Northern District of Iowa
    • August 27, 2014
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