Potocnik v. Carlson
| Decision Date | 15 July 2016 |
| Docket Number | Case No. 13-CV-2093 (PJS/HB) |
| Parties | SHEILA POTOCNIK, Plaintiff, v. WALTER CARLSON, acting in his individual capacity as a Sergeant for the City of Minneapolis Police Department; CITY OF MINNEAPOLIS; JOHN AND JANE DOES (1-500), acting in their individual capacity as supervisors, officers, deputies, staff, investigators, employees or agents of the other law-enforcement agencies; ENTITY DOES (1-50), including cities, counties, municipalities, and other entities sited in Minnesota and federal departments and agencies; KURT RADKE, acting in his individual capacity as a Sergeant for the Minneapolis Police Department; CHRIS THOMSEN, acting in his individual capacity as a Sergeant for the Minneapolis Police Department; LAURA ROSE TURNER, acting in her individual capacity as an Officer of the Minneapolis Police Department, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Jonathan A. Strauss, Sonia Miller-Van Oort, and Lorenz F. Fett, Jr., SAPIENTIA LAW GROUP, PLLC, for plaintiff.
Peter G. Mikhail and Adam C. Wattenbarger, KENNEDY & GRAVEN, CHARTERED, for defendant Walter Carlson.
Andrea K. Naef and Kristin R. Sarff, MINNEAPOLIS CITY ATTORNEY'S OFFICE, for defendants City of Minneapolis, Kurt Radke, Christopher Thomsen, and Laurarose Turner.1
Plaintiff Sheila Potocnik brings multiple claims under the Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721 et seq., against the City of Minneapolis ("the City") and four members of the Minneapolis Police Department. Potocnik alleges that the individual defendants unlawfully accessed her driver's-license record and that the City is liable for their conduct.
This matter is before the Court on defendants' motions for summary judgment. For the reasons stated below, the Court grants the motions in part and denies them in part. Specifically, the Court holds that Potocnik has standing to sue under the DPPA; that all claims against defendants Kurt Radke, Christopher Thomsen, and Laurarose Turner are time-barred; that the City may be held vicariously liable for the conduct of Radke and Turner, but not Thomsen; that Potocnik may not recover liquidated damages without establishing that she suffered actual damages; that Potocnik may recover damages for "garden variety" mental and emotional distress; that Potocnik may recover punitive damages without recovering actual damages; and that the number of times that Carlson obtained Potocnik's personal information in violation of the DPPA is a question for the jury.
The DPPA protects from disclosure "personal information" obtained by state departments of motor vehicles in connection with motor-vehicle records. 18 U.S.C. § 2721(a). "[P]ersonal information" includes "information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit ZIP code), telephone number, and medical or disability information . . . ." 18 U.S.C. § 2725(3).
Under the DPPA, it is "unlawful for any person knowingly to obtain or disclose personal information, from a motor vehicle record, for any use not permitted under section 2721(b) . . . ." 18 U.S.C. § 2722(a). Section 2721(b), in turn, sets out fourteen permissible uses for personal information contained in motor-vehicle records. Permissible uses include "use by any government agency, including any court or law enforcement agency, in carrying out its functions . . . ." 18 U.S.C. § 2721(b)(1). The subject of a motor-vehicle record may sue any "person who knowingly obtains, discloses or uses [her] personal information, from a motor vehicle record, for a purpose not permitted under this chapter . . . ." 18 U.S.C. § 2724(a).
Potocnik is connected in several ways to the Minneapolis police force. She argues that these connections create an inference that, when defendants accessed her DVS records, they were motivated by curiosity or malice rather than by any legitimate law-enforcement purpose.
In July 2005, Potocnik met Brian Potocnik ("Brian"), a Minneapolis police officer; they began dating in December of that year. Potocnik Dep. 187. A couple of months before meeting Potocnik, Brian had been placed on administrative leave after being accused of having sexual contact with a minor. B. Potocnik Dep. 115-16; Turner Dep. 64-65. Brian left the Minneapolis Police Department in February 2006. B. Potocnik Dep. 10. Potocnik and Brian married in July 2012. Potocnik Dep. 123.
Brian knows Radke, Thomsen, and Turner from his time as a Minneapolis police officer. Brian attended the police academy with Radke in 1997. B. Potocnik Dep. 10-11. The two were friends and partners on the force; Brian stayed at Radke's home in May 2009 and again in May 2011 when he and Potocnik were having domestic disputes. Potocnik Dep. 185-86. Brian also worked with and played on the same softball team as Thomsen, B. Potocnik Dep. 69-70, and socialized with Turner at work, B. Potocnik Dep. 119-22. Although Brian never met defendant Walter Carlson, Carlson was aware of Brian and the disciplinary proceedings against him. Carlson Dep. 88-89.
Potocnik has two other connections to the Minneapolis Police Department, both unrelated to her relationship with Brian. First, Potocnik's brother was in a long-term relationship with Carlson's daughter, and the couple had two children. Potocnik Dep. 13-14. In other words, Potocnik is the aunt of two of Carlson's grandchildren. Second, Potocnik's sister, Laura DeMeules, was murdered in 2005, and her murder was investigated by Thomsen. Thomsen Dep. 6, 8.
Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute over a fact is "material" only if its resolution might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255.
Carlson argues that Potocnik lacks standing to sue under the DPPA, citing in support of his argument the recent decision of the United States Supreme Court inSpokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). A plaintiff has standing if (1) the plaintiff suffered an injury in fact; (2) the injury is fairly traceable to the challenged conduct of the defendant; and (3) the injury is likely to be redressed by a favorable judicial decision. Id. at 1547. To show injury in fact, the plaintiff must have suffered "'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
Spokeo addressed the meaning of "concrete." The plaintiff in Spokeo brought a claim under the Fair Credit Reporting Act, alleging that a search of the Internet by the defendant's search engine had returned incorrect information about him. Id. at 1544. The Supreme Court remanded the case to the Ninth Circuit, holding that the lower court had failed to analyze whether this alleged injury was concrete. Id. at 1545. The Court clarified that merely alleging a violation of a statutory right is not necessarily sufficient to establish a concrete injury. Id. at 1549. Instead, the Court explained, the injury must be de facto—that is, real as opposed to abstract. Id. at 1548. The Court recognized, however, that an injury need not be tangible to be concrete. Id. at 1549.
Carlson argues that, under Spokeo, Potocnik lacks standing because she has alleged only a violation of a statutory right, and not a concrete injury. The Court disagrees. In Spokeo, the Court observed that, in determining whether an intangibleharm meets the test for concreteness, "it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Id. Here, the type of harm at issue—the viewing of private information without lawful authority—has a close relationship to invasion of the right to privacy, a harm that has long provided a basis for tort actions in the English and American courts. See Restatement (Second) of Torts § 652A cmt. a (Am. Law Inst. 1977) (describing the history of the tort of invasion of privacy).
This is not to say that, under the circumstances of this case, Potocnik could win a tort claim; in fact, the Court has already dismissed Potocnik's invasion-of-privacy claim under Minnesota law. See ECF No. 34 at 31-34. But Spokeo does not require that the harm created by the violation of a statute be identical to the type of harm that will give rise to a recovery under the common law of any particular jurisdiction. Instead, Spokeo speaks broadly about the harm created by violation of a statute having a "close relationship" to a harm that has traditionally "provid[ed] a basis for a lawsuit" in "English [and] American courts." Spokeo explicitly recognized that "Congress may 'elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.'" Spokeo, 136 S. Ct. at 1549 (quoting Lujan, 504 U.S. at 578). In other words, the Court made clear that an injury that would not give rise torecovery in a tort action could nevertheless be sufficiently concrete to give a plaintiff standing to seek recovery in a statutory action.
For these reasons, the Court concludes that Potocnik has standing to pursue her claims under the DPPA, even if Potocnik can show nothing more than that defendants invaded her privacy by unlawfully obtaining information about her...
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