Tracy v. Neuberger

• Decision Date: 06 January 2012
• Docket Number: Civ. No. 10–4549 (RHK/JSM).
• Citation: Tracy v. Neuberger, 840 F.Supp.2d 1183 (D. Minn. 2012)
• Parties: Mark Andrew TRACY, Plaintiff, v. Joseph NEUBERGER, John Doe No. 1, Michael Sullivan, and Dale Burns, Defendants.
• Court: U.S. District Court — District of Minnesota

840 F.Supp.2d 1183

Mark Andrew TRACY, Plaintiff,

v.Joseph NEUBERGER, John Doe No. 1, Michael Sullivan, and Dale Burns, Defendants.

Civ. No. 10–4549 (RHK/JSM).

United States District Court, D. Minnesota.

Jan. 6, 2012.

David L. Shulman, Craig A. Buske, Law Office of David L. Shulman PLLC, Minneapolis, MN, for Plaintiff.

Susan M. Tindal, Iverson Reuvers, LLC, Bloomington, MN, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

INTRODUCTION

This action arises out of PlaintiffMark Tracy's arrest during the 2008 Republican National Convention (“RNC”) in St. Paul, Minnesota.Tracy alleges that the Defendant police officers arrested him without probable cause, violating both his First- and Fourth–Amendment rights pursuant to 42 U.S.C. § 1983.Defendants have moved for summary judgment, asserting that they are entitled to qualified immunity on Tracy's claims.For the reasons below, the Court will grant the Motion.

BACKGROUND

The pertinent facts are largely undisputed.As required at this juncture, however, the events giving rise to this action are recited below in the light most favorable to Tracy.E.g., Rau v. Roberts,640 F.3d 324, 327(8th Cir.2011).

September 1, 2008, was the first day of the RNC in downtown St. Paul.Many officers with the St. Paul Police Department(“SPPD”) and other departments around the area were on duty, having received special training for situations they might encounter during the convention.DefendantJoseph Neuberger, a Senior Commander with the SPPD, headed up the law-enforcement efforts during the convention from a command center.( SeeNeubergerDep. 7–8.)The officers were organized into mobile field forces (“MFFs”).( E.g.,SullivanDep. 10.)Two MFF divisions were involved in the actions giving rise to Tracy's claims.They were led by DefendantSergeant Dale Burns and DefendantLieutenant Michael Sullivan, respectively, both officers with the Minneapolis Police Department(“MPD”).( SeeBurnsDep. 8;SullivanDep. 5, 8.)

On the morning of September 1, Tracy drove to downtown St. Paul with his friend, Michael Birchard.He parked his car in the Sears parking lot at the edge of downtown, and from there he and Birchard continued on their bicycles.(TracyDep. 10.)Their purpose in going downtown was to pass out a political magazine they had produced, entitled “my peace city,” and they brought several thousand copies of this magazine with them.( Id. 13–14.)

They first rode to the Capitol where they joined friends, family, and others to observe and participate in a rally against the RNC and distribute copies of their magazine.( Id. 13–16.)Later, they took part in a march that began on the Capitol grounds and ended near the Xcel Energy Center, where RNC events were taking place.( Id. 19–20.)This march had been permitted and approved by the city.After it ended, Tracy and Birchard rode to the Lowertown area of downtown to bring magazines to a café.The two of them were traveling alone at this point and were not part of any larger group.( Id. 25–27.)After delivering magazines to the café, they began to ride north through downtown towards Tracy's car, continuing to distribute magazines along the way.( Id. 32.)At no point during the march or while riding his bicycle afterwards did Tracy observe anyone engaged in criminal acts such as turning over dumpsters, breaking windows, or creating roadblocks.( Id. 27–28, 33–34.)

On their return to the car, Tracy and Birchard rode along the sidewalk on Temperance Street, heading north towards Ninth Street.(TracyAff. ¶ 3.)To their left (that is, to the west of Temperance Street) was a block largely comprised of an open parking lot.( E.g., id.Ex. 1.)The parking lot was the scene of the incident giving rise to this action.It is bordered by Temperance Street on the east, Jackson Street on the west, Ninth Street on the north, and Seventh Street on the south.Along the Temperance–Street side of the block are two buildings, one at the north corner and one at the south corner, with an opening between the buildings through which one can enter the parking lot.

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When they passed the opening between the two buildings on this block of Temperance Street, Birchard was riding ahead of Tracy.( Id.¶ 4.)As Tracy passed the opening and looked into the parking lot to his left, he observed a group of what he estimated to be 25–50 people,¹ whom he did not recognize, running across the lot toward him.(TracyDep. 38.)Unbeknownst to Tracy at the time, police had been pursuing this group around the downtown area for over an hour and had observed numerous individuals within the group committing criminal acts, including breaking windows, throwing newspaper vending machines and other items into the roads, and vandalizing a police car.Burns had recommended, and obtained Neuberger's approval for, a plan to encircle the group and arrest them.(BurnsDep. 18, 40, 55–56.)He ordered his MFF to set up police lines and carry out this plan, and Sullivan repeated the same orders to his MFF.(SullivanDep. 32–33, 42.)

At the precise time Tracy was riding past the parking lot, officers were quickly approaching the parking lot from different directions.Tracy had just ridden past the opening between the two buildings on the Temperance–Street side of the parking lot and was continuing to ride his bike north on the sidewalk when an officer on a motorcycle arrived and told him to stop and get off his bike.(TracyDep. 39–40.)The officer did not stop Birchard, who was ahead of Tracy and had already passed the opening when the officer arrived.(TracyAff. ¶ 4.)The identity of this officer is unknown; neither Tracy nor the Defendants know his name, or even whether he was with one of the MFF divisions commanded by Burns or Sullivan.( E.g.,TracyAff. ¶ 4.)He is not the same officer who later booked Tracy and formally processed his arrest, and he has not been named as a Defendant in this action.

Tracy complied with the officer's request to stop and get off his bike but told him, “I'm just biking with my friend.I'm not with that group.”(TracyDep. 37.)The officer left and went into the parking lot where the group was being contained, but he instructed Tracy to wait where he was.( Id. 37, 42.)Tracy did not feel as though he was free to leave, and he obeyed the officer.(TracyAff. ¶ 5.)The officer later returned and told Tracy to sit against the wall of one of the buildings bordering the parking lot.(TracyDep. 42.)Tracy did so and, while sitting against the wall, was handcuffed by another unidentified officer (but not the officer who had initially stopped him).( Id. 42, 44.)

After Tracy had been sitting in the parking lot for 15 to 30 minutes and was already in handcuffs, Defendant Officer John Doe 1 (“Doe”)² took control of him.(DoeDep. 12.)He oversaw Tracy's processing and booking, completed the “Authority to Detain” form, and saw that Tracy was put into a van to be transported to jail.( Id. 12, 37; Shulman Aff. Ex. F.)Doe did not question Tracy about his involvement in the suspected criminal activities before processing and booking him.(TracyAff. ¶ 6;DoeDep. 23.)The paperwork he completed indicated that Tracy's arrest was for felony riot and, as a result of that charge, he was not eligible for immediate release because he was deemed to be a risk to engage in further criminal activity or unlikely to respond to a citation.(Shulman Aff. Ex. F.)

Tracy was held in jail for 48 hours, during which time he experienced anxiety resulting from his inability to communicate with his family or prepare for the classes he taught in his job as a community-college professor.(TracyDep. 46, 48–51.)He was released two days later and ultimately was not charged with any crime.This action followed.Defendants have now moved for summary judgment, asserting that they are entitled to qualified immunity.The Motion was fully briefed, a hearing was held on December 21, and it is now ripe for decision.

STANDARD OF REVIEW

Summary judgment is proper if, drawing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(a);Celotex Corp. v. Catrett,477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986).The moving party bears the burden of showing that the material facts in the case are undisputed.Id. at 322, 106 S.Ct. 2548;Whisenhunt v. Sw. Bell Tel.,573 F.3d 565, 568(8th Cir.2009).The Court must view the evidence, and the inferences that may be reasonably drawn from it, in the light most favorable to the nonmoving party.Weitz Co., LLC v. Lloyd's of London,574 F.3d 885, 892(8th Cir.2009);Carraher v. Target Corp.,503 F.3d 714, 716(8th Cir.2007).The nonmoving party may not rest on mere allegations or denials, but must show through the presentation of admissible evidence that specific facts exist creating a genuine issue for trial.Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986);Wingate v. Gage Cnty. Sch. Dist., No. 34,528 F.3d 1074, 1078–79(8th Cir.2008).

ANALYSIS

Defendants argue that they are entitled to qualified immunity on Tracy's claims.In evaluating this assertion, the Court conducts a two-step analysis.It must assess whether the facts alleged, when viewed in the light most favorable to Tracy, show that the challenged conduct violated a constitutional right.Then, if a violation can be established based upon those facts, the Court must determine whether the constitutional right at issue was clearly established on the date in question.E.g., Avalos v. City of Glenwood,382 F.3d 792, 798(8th Cir.2004)(citingSaucier v. Katz,533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272(2001)).The Court has the discretion to choose which of these two questions to answer first.Pearson v. Callahan,555...