State v. Plotz
| Decision Date | 30 April 2008 |
| Docket Number | No. 27-CR-08-27398.,No. 27-CR-08-21239.,No. 27-CR-08-20527.,No. 27-CR-08-21162.,No. 27-CR-08-21376.,No. 27-CR-08-27609.,No. 27-CR-08-20850.,No. 27-CR-08-21221.,No. 27-CR-08-24969.,No. 27-CR-08-21706.,No. 27-CR-08-27607.,No. 27-CR-08-22006.,No. 27-CR-08-21067.,No. 27-CR-08-20549.,27-CR-08-21376.,27-CR-08-24969.,27-CR-08-27609.,27-CR-08-21706.,27-CR-08-27607.,27-CR-08-27398.,27-CR-08-21067.,27-CR-08-20549.,27-CR-08-21221.,27-CR-08-20527.,27-CR-08-21239.,27-CR-08-21162.,27-CR-08-22006.,27-CR-08-20850. |
| Parties | State of Minnesota, Plaintiff, v. Katrina Rose Plotz, Deborah Bancroft, James Dimock, Connor Donegan, William Drebenstedt, Timothy Fritz, Martin Hoerth, Richard Jacobs, Tracy Molm, Melissa Rowan, Sarah Standefer, Maura Sullivan, Jessica Sundin, Mary White, Defendants. |
| Court | Minnesota District Court |
The above-entitled matter came before the undersigned Judge of the District Court on April 30, 2008, on Defendants' Motion to Dismiss based on 1) lack of probable cause that a properly authorized agent made a demand to vacate the property; 2) the ordinance impermissibly conflicts with State law; and 3) the Defendants' conduct constituted protected activity under the First Amendment to the United States Constitution.
Final written submissions were received and the matter was taken under advisement on September 2, 2008. Plaintiff is represented by Clair Cole, Assistant Minneapolis City Attorney. Defendants were represented by Bruce Nestor, Esq.
Based upon the files and proceedings herein, the Court makes the following:
1. Defendants' Motion to Dismiss is DENIED.
2. The attached memorandum is incorporated herein.
MEMORANDUMOn March 27, 2008, the above named defendants, ("Defendants") were arrested outside of a National Guard recruiting office, located at 825 Washington Ave, SE in Minneapolis, Minnesota, in a second-floor office. Defendants were charged with trespassing, in violation of Minneapolis Ordinance § 385.380. Defendants claim that they were engaged in protected First Amendment activity, protesting the illegal and immoral United States invasion and continuing war in Iraq, and that thier group sought to meet with National Guard officials at the recruiting office to convey their message.
The police report states that officers observed a group of protesters gathered around 825 Washington Ave, SE. The "sidewalk was semi-blocked by the group, but pedestrian traffic was still able to safely pass by and no businesses appeared to be adversely affected by their actions." (Plf's Ex. A.) One of the property's co-owners, Joshua Zavadil ("Zavadil") asked officers what could be done if the protesters entered the building. He stated that he did not want anyone to "impede or interrupt the business of his tenants." (Id.)
At the time Zavadil's statement was made, none of the protesters had entered 825 Washington Ave, SE. When the group moved closer to the building, police called Zavadil, who was unable to come to the building, but sent Mr. Oberlander ("Oberlander"), his business partner. Because the officer did not have a police department trespass form, Oberlander wrote on a business card, "I do not want anyone to trespass at 825 Washington SE."
At around 12:30 p.m., officers observed persons attempt to enter the recruiting office, speak to a recruiter, and then the recruiter shut the office door. The group then chanted, displayed small signs, and some pounded on the glass walls of the office. The police report stated that these actions "disrupted the normal business operations of the recruiting station and the (adjacent) credit union." (Id.)
Captain Wagenpfeil ("Wagenpfeil") stated that he approached the group and, in a loud voice, told them that they were trespassing and that they would have to leave or that they would be arrested. Wagenpfeil further stated that he gave them two more warnings. Wagenpfeil then stated that the next order he gave would be the final order and that arrests would be made. Several members of the group asked if arrests would really be made. When Wagenpfeil stated that they would, several people left the building. Wagenpfeil gave the final order, waited several minutes, and directed other officers to come make the arrests.
Defendants brought this Motion to Dismiss the trespass charge based on three grounds: 1) lack of probable cause that a properly authorized agent made a demand to vacate the property; 2) the ordinance impermissibly conflicts with State law; and 3) Defendants' conduct constituted protected activity under the First Amendment to the U.S. Constitution. Plaintiff opposes this motion and also moved to join the trials of all defendants.
On a motion to dismiss, the district court may consider only the complaint and the documents referenced therein. Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 n. 7 (Minn. 2000). The facts as alleged in the complaint must be accepted as true, and all reasonable inferences must be construed in favor of the nonmoving party. Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).
Minneapolis Ordinance § 385.380 provides that "No person shall intentionally enter or remain upon or within the land or property of another and, without claim of right, refuse to depart therefrom on demand of a lawful possessor thereof or his or her agent." Minneapolis Ordinance § 385.380 (a)(1) "defines an agent as a person authorized by another to act for him or her." The definition includes, but is not limited to, "a security officer hired to secure the land or property or a licensed peace officer." A police officer can be an authorized agent for the lawful possessor. See State v. Quinnell, 151 N.W.2d 598 (Minn. 1967).
In this case, Zavadil and Oberlander, the lawful owners of the building, authorized Captain Wagenpfeil, a licensed peace officer, to act as their agent and endowed him with the authority to demand that the protesters vacate the property. Zavadil asked Wagenpfeil what could be done if a specific, identifiable group of protesters tried to enter his building or disrupt the business of his tenants. Zavadil asked Wagenpfeil to call him if the protesters approached the building. When the group moved closer to the building, Oberlander personally came to the property and Wagenpfeil was again told that the owners did not want the group to enter, protest in, or disrupt their building or the businesses in it. Because Wagenpfeil did not have a department trespass form with him, Oberlander used the back of a business card to state, in writing, that the building owners did not want anyone to trespass at the building. The building owners, not the officer, identified a specific group of people engaging in behavior that the owners believed would disrupt their businesses, should the group enter the building.
The facts clearly establish that the property owners identified a specific group of people near their property. The owners expressed great concern to the police that the group not trespass on their property or disrupt the businesses of their tenants. Zavadil and Oberlander further asked Captain Wagenpfeil to demand that the protesters leave their property if they entered the building. Therefore, a jury could reasonably conclude that the owners authorized Captain Wagenpfeil act as their agent for purposes of the trespass ordinance.
An ordinance must be in harmony with an enacted statute. Power v. Nordstrom, 184 N.W. 967, 969 (Minn. 1921). Defendants argue that conflict exists in this case because the city ordinance authorizes police to act as an agent without any first-hand assessment by a property owner that behavior is actually trespassing and not legitimate business. Four general principles guide an analysis of whether a local ordinance impermissibly conflicts with a state statute. First, a conflict exists "only when both the ordinance and the statute contain express or implied terms that are irreconcilable with each other." Mangold Midwest Co. v. Village of Richfield, 143 N.W.2d 813, 816 (Minn. 1966). Second, a conflict exists when an ordinance permits what a statute forbids. Id. Next, an ordinance may not forbid what a statute permits. Id. Finally, a conflict does not exist when an ordinance differs from a statute but is "merely additional and complementary to or in aid and furtherance of the statute." Id. at 817. Whether an ordinance conflicts with a statute is a question of law. See Buss v. Johnson, 624 N.W.2d 781, 784 (Minn. Ct. App. 2001).
In this case, the wording of the relevant provisions of Minnesota Statute § 609.605 and Minneapolis Ordinance § 385.380 are nearly identical. Minneapolis Ordinance § 385.380 states that, "No person shall intentionally enter or remain upon or within the land or property of another and, without claim of right, refuse to depart therefrom on demand of a lawful possessor thereof or his or her agent." Minnesota Statute § 609.605 (b)(3) states that a person is guilty of trespassing if he or she "trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor." Minn. Stat. § 609.605 subd. 1(b) (2007). Therefore, the terms of the ordinance and the statute clearly do not contain express or implied terms that are irreconcilable with each other.
This court must give the terms of a statute their plain and ordinary meaning and take into account the structure of the statute and the context of the disputed language. See In re Robledo, 611 N.W.2d 67, 69 (Minn. Ct. App. 2000). Every law must be construed, if possible, to give effect to all of its provisions. Minn. Stat. § 645.16 (2006); In re Appeal of Staley, 730 N.W.2d 289, 297 (Minn. Ct. App. 2007). Because ordinance § 385.380 does not permit anything that that Minn. Stat. § 609.605 prohibits, nor...
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