Tirado v. City of Minneapolis

• Decision Date: 22 February 2021
• Docket Number: No. 20-1338 (JRT/ECW),20-1338 (JRT/ECW)
• Citation: 521 F.Supp.3d 833
• Court: U.S. District Court — District of Minnesota
• Parties: Linda TIRADO, Plaintiff, v. CITY OF MINNEAPOLIS, Medaria Arradondo, in his official capacity as Minneapolis Chief of Police, Robert Kroll, in his individual capacity, and Minneapolis Police Officers John Does 1–4, in their official and individual capacities, Defendants.

521 F.Supp.3d 833

Linda TIRADO, Plaintiff,

v.CITY OF MINNEAPOLIS, Medaria Arradondo, in his official capacity as Minneapolis Chief of Police, Robert Kroll, in his individual capacity, and Minneapolis Police Officers John Does 1–4, in their official and individual capacities, Defendants.

No. 20-1338 (JRT/ECW)

United States District Court, D. Minnesota.

Signed February 22, 2021

Tai-Heng Cheng, Gaelle Tribie, Kierstin S. Fowler, and Patricia Butler, SIDLEY AUSTIN LLP, 787 Seventh Avenue, New York, NY 10019; Gabriel Schonfeld, SIDLEY AUSTIN LLP, 1501 K. Street Northwest, Washington, DC 20005; Davida Sheri McGhee and John M. Baker, GREENE ESPEL PLLP, 222 South Ninth Street, Suite 2200, Minneapolis, MN 55402; Margaret Allen, SIDLEY AUSTIN LLP, 2021 McKenney Avenue, Suite 2000, Dallas, TX 75201; and Stacy Horth-Neubert, SIDLEY AUSTIN LLP, 555 West Fifth Street, Los Angeles, CA 90013, for plaintiff.

Kristin R. Sarff, Heather Passe Robertson, and Sharda R. Enslin, CITY OF MINNEAPOLIS ATTORNEY'S OFFICE, 350 South Fifth Street, Suite 210, Minneapolis, MN 55415, for defendants City of Minneapolis and Medaria Arradondo.

Joseph A. Kelly and Kevin M. Beck, KELLY & LEMMONS PA, 2350 Wycliff Street, Suite 200, Saint Paul, MN 55114, for defendant Robert Kroll.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

JOHN R. TUNHEIM, Chief Judge

Linda Tirado traveled to Minneapolis to report on the protests and civil unrest that followed George Floyd's death in the custody of the Minneapolis Police Department ("MPD"). While covering the protests, Tirado was injured by a foam bullet fired by an MPD officer and is now permanently blind in one eye.

Tirado initiated this 42 U.S.C. § 1983 action against the City of Minneapolis and MPD Chief Medaria Arradondo (collectively, "the City"), police union president Robert Kroll in his individual capacity, and four John Doe MPD Officers. Tirado asserts municipal liability for violations of her First, Fourth, and Fourteenth Amendment rights pursuant to Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) based on an unofficial custom of unlawful conduct toward journalists during the George Floyd protests. Tirado also alleges a civil conspiracy between the City, Kroll, and the John Does to deprive journalists of constitutional rights. The City has filed a Motion to Dismiss with respect to the municipal liability and civil conspiracy claims, and Kroll has filed a Motion to Dismiss with respect to the civil conspiracy claim.

Because Tirado has alleged numerous instances of MPD officers similarly targeting journalists during the George Floyd protests and has plausibly alleged that the City knew of, yet failed to address, such incidents, the Court will deny the City's Motion with respect to the Monell -based claims. Likewise, the Court will deny the City's and Kroll's Motions with respect to the civil conspiracy claim because Tirado has presented circumstantial allegations that support an inference of a willful conspiracy among Kroll, the City, and the John Doe defendants.

BACKGROUND

I. FACTS

A. The Protests and Tirado's Reporting

Following George Floyd's death while in MPD custody on May 25, 2020, protests and civil unrest rapidly expanded across the city, state, and country. (Am. Compl. ¶¶ 17, 21–22, July 29, 2020, Docket No. 33.) In response to the unrest, Minnesota Governor Tim Walz issued a series of executive orders implementing curfews in Minneapolis for the nights of May 29, 31, June 1, and 3, (id. ¶ 25), which prohibited persons from traveling on any public street or place. (id. ¶ 26.) The executive orders exempted all members of the news media from the restrictions, (id. ), but there was no system in place for members of the press to obtain official credentials from the State of Minnesota or MPD. (id. ¶ 27.)

Amid a surge of press coverage, Plaintiff Linda Tirado, a freelance journalist with extensive experience covering protests, traveled to Minneapolis to cover the protests and civil unrest. (Id. ¶¶ 5, 10, 23, 29, 75.) She ventured out to observe protests on the evening of May 29, the first night of the curfew. (Id. ¶ 28.) Tirado was identifiable as a member of the press because she wore a standard reflective press credential around her neck, carried a professional-grade camera and lens, and wore a high-grade respirator and goggles. (Id. ¶¶ 30–33.)

Shortly after midnight on May 30, 2020, Tirado approached the MPD Fifth Precinct, where a crowd of protestors stood across from a group of MPD officers. (Id. ¶¶ 34–36.) Protestors did not appear to be armed, but they were occasionally throwing water bottles at the police. (Id. ¶ 37.) The officers were armed with 40mm foam bullets, a type of "less-lethal" munition, and launchers equipped with aiming devices. (Id. ¶ 38–39, 41.) The use of 40mm foam bullets is governed by the MPD Policy and Procedure Manual, which provides that foam bullets are only authorized for the purpose of incapacitating an aggressive, non-compliant subject—not for crowd control; the primary target should be the large muscle group in the lower extremities; and officers should avoid using foam bullets against the head and neck unless use of deadly force is justified. (Id. ¶¶ 43–45.)

At approximately 12:34 a.m., Tirado approached the opposing groups of protestors and police from the side, such that she did not appear to be part of the group of protestors, and stood between the groups, separately from the protestors, to take photos of the police line. (Id. ¶¶ 46–48.) Tirado states that her reflective press credential remained visible while taking photos and that the flash from her camera was visible from the police line. (Id. ¶¶ 49, 51.) Tirado took dozens of photos of both protestors and police from her vantage point. (Id. ¶ 50.) Tirado did not hear any instructions, warnings, or communication from police while taking photos. (Id. ¶¶ 34, 55.)

Then, as Tirado aimed her camera to take more photos, one or more of the MPD officers, John Does # 1–4, aimed and fired a foam bullet at her head, in violation of MPD policy, which hit Tirado in the left side of the face and knocked off her goggles. (Id. ¶¶ 52–54, 56.)

Two photos taken by Tirado moments before the officer(s) shot the foam bullet(s) show police aiming 40mm launchers toward Tirado, despite allegedly being identifiable as press and being some distance away from police at the time. (See id. ¶ 58.) According to Tirado, the officers in the photos do not appear to be under imminent threat from Tirado, and some are not paying attention to her. (Id. ¶ 59.)

B. Tirado's Injury and Ongoing Impact

Protestors saw that Tirado was shot and helped her reach on-site medics. (Id. ¶ 60.) Medics put a bandage on her eye and coordinated transportation to the hospital.¹ (Id. ) When Tirado arrived at the hospital, she was sent into surgery. (Id. ¶ 70.) Tirado was told by doctors that she is now permanently blind in her left eye. (Id. ¶ 71.) Since May 30, Tirado underwent a second eye surgery, and she has been told that additional surgeries may be necessary and has had regular medical visits to address ongoing complications. (Id. ¶ 73.)

Tirado's blindness has altered her professional and everyday life. (Id. ¶¶ 74–85) For example, her ability to drive and ride in a car is limited, she experiences severe headaches, and tires easily. (E.g. , id. ¶¶ 77–78.) Tirado's two children have also been affected. (Id. ¶ 79.) Professionally, Tirado has limited ability to focus on cameras, computer screens, or documents for long periods of time. (Id. ¶ 78.) However, Tirado has already returned to covering protests, such as a series of protests at the state capitol in Columbus, Ohio. (Id. ¶¶ 80–81.) Tirado intends to continue covering protests and civil unrest, and is interested in returning to Minneapolis to document the aftermath of the George Floyd protests, but she fears retaliation or use of excessive force by MPD. (Id. ¶¶ 82–85.)

C. Other Journalists’ Experiences Covering the George Floyd Protests

Tirado alleges that numerous other journalists were subject to use of force and threats by MPD while covering the protests and civil unrest, despite being identifiable as press. (See id. ¶¶ 86–106.) Tirado identifies incidents that occurred both before and after she was shot.

On May 26, 2020, MPD officers shot StarTribune reporter Andy Mannix in the thigh with a foam bullet while he was leaning against a tree a block away from the MPD Third Precinct. (Id. ¶ 88.) When he was shot, Mannix was posting a video to Twitter. (Id. ) Mannix tweeted about his experience that night and the following day, and Time Magazine covered the incident on May 27. (Id. ) The same day, MPD officers shot reporter Niko Georgiages in the arm with less-lethal munition as he approached an injured protestor lying on the ground, which was documented on Twitter. (Id. ¶ 89). Additionally, MPD hit an unidentified journalist with a baton in the throat and stomach despite onlookers saying he was press, which was documented on YouTube. (Id. ¶ 90.)

On May 27, freelance journalist Jared Goyette was struck in the eye by a less-lethal projectile,² (id. ¶ 91), and an MPD officer shot Minnesota Reformer reporter Max Nesterak in the chest with a less-lethal projectile immediately after he took a photo of a group of about 10 police officers, (id. ¶ 92.) Nesterak tweeted about his experience and posted the photo he took. (Id. ¶ 92.)

On May 30, several incidents occurred in addition to Tirado's injury. Reuters cameraman Julio-Cesar Chavez was struck in the arm and neck by less-lethal projectiles. (Id. ¶ 99.) MPD fired multiple projectiles at CBS reporter Michael George and his news crew although they had credentials displayed and were carrying equipment 500 feet from protestors. (Id. ¶ 100.) MPD also shot Canadian Broadcasting Corporation correspondent Susan Ormiston in the shoulder with a less-lethal projectile while she stood in a parking lot with her television crew. (Id. ¶ 101.)...