Cole v. Lockman

1

CAROLYN COLE and MOLLY HENNESSY-FISKE, Plaintiffs, v. BENJAMIN LOCKMAN and MICHAEL ECK, acting in their individual capacities as troopers or other sworn officers of the Minnesota State Patrol; and JOSEPH DWYER and JASON ENGELDINGER, acting in their individual capacities as Captains of the Minnesota State Patrol. Defendants.

No. 21-CV-1282 (PJS/DLM)

United States District Court, D. Minnesota

January 29, 2024

Greta Wiessner, ROBINS KAPLAN LLP, for plaintiffs.

Joseph Weiner, MINNESOTA ATTORNEY GENERAL'S OFFICE, for defendants.

ORDER

Patrick J. Schiltz, Chief Judge United States District Court

Plaintiffs Carolyn Cole and Molly Hennessy-Fiske are journalists who traveled to Minnesota in May 2020 to report on the rioting that followed the murder of George Floyd. While observing the Minnesota State Patrol (“MSP”) attempt to clear a street of curfew violators, Cole and Hennessy-Fiske found themselves on the receiving end of multiple blasts of pepper spray deployed by defendants Michael Eck and Benjamin Lockman. Eck and Lockman-and their supervisors, defendants Joseph Dwyer and Jason Engeldinger-were members of the MSP's Mobile Response Team (“MRT”), a unit of roughly 100 troopers and officers who were trained and deployed for crowdcontrol situations.

Cole and Hennessy-Fiske brought this action under 42 U.S.C. § 1983, seeking to recover for alleged violations of their constitutional rights. In Counts I and II of their second amended complaint, Cole and Hennessy-Fiske allege that Eck and Lockman used excessive force against them in violation of the Fourth Amendment and that Lockman breached a duty to prevent Eck's use of excessive force. In Count III, Cole and Hennessy-Fiske allege that Eck and Lockman retaliated against them for exercising their First Amendment rights. And in Counts IV and V, Cole and Hennessy-Fiske seek to hold Dwyer and Engeldinger liable for the actions of Eck and Lockman.

This matter is now before the Court on defendants' motion for summary judgment. For the reasons that follow, the Court mostly denies defendants' summaryjudgment motion insofar as it seeks dismissal of the claims against Eck and Lockman but grants the motion insofar as it seeks dismissal of the claims against Dwyer and Engeldinger.

I. BACKGROUND

Cole and Hennessy-Fiske are journalists who were working for the Los Angeles Times in 2020-Cole as a photojournalist, and Hennessy-Fiske as a reporter. As noted, Eck, Lockman, Dwyer, and Engeldinger were members of the MRT. Dwyer joined the MSP in 1997; as of 2020, he held the rank of Captain. (He has since been promoted to Major.) Engeldinger has been with the MSP since 1998, and has served as a Captain since 2019. Eck has worked for the MSP since 1999, and attained the rank of Lieutenant in 2019. Lockman joined the MSP in 2017, and holds the rank of Trooper.

All four defendants have received training focused on controlling crowds during protests and similar events. This training has included instruction about the use of specialized crowd-control tools such as Mark-9 canisters, which are large containers that disperse oleoresin capsicum (more commonly known as “pepper spray”). This training has also included instruction about complying with the First and Fourth Amendments.

George Floyd was murdered by a Minneapolis police officer on May 25, 2020. The days that followed were marred by unprecedented rioting, arson, looting, and civil unrest, which inflicted hundreds of millions of dollars in losses on the citizens of Minneapolis and surrounding communities. The civil disorder was punctuated by rioters burning down the Minneapolis Police Department's (“MPD's”) Third Precinct headquarters on the night of May 28. This turmoil is what brought both the plaintiffs and the defendants to Minneapolis-plaintiffs for the purpose of reporting on the turmoil, and defendants for the purpose of stopping it.

The day after the Third Precinct headquarters was destroyed, Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey issued orders imposing an 8:00 pm curfew in the city for the evenings of May 29 and May 30. See Minn. Exec. Order No. 20-65 ¶ 1 (May 29, 2020), ECF No. 139-11; Am. Minneapolis Emergency Reg. No. 2020-2-1 ¶ 1 (May 29, 2020), ECF No. 139-11. Under both orders, members of the media were exempt from the curfew. See Minn. Exec. Order No. 20-65 ¶ 3; Am. Minneapolis Emergency Reg. No. 2020-2-1 ¶ 3. Major Jeffrey Huettl, who oversaw the MRT at the time, testified that he was aware that members of the media were exempt from the Governor's curfew order, but he did not know how the details of that order had been disseminated down the chain of command. See Huettl Dep. 107:8-14, 108:12-22, ECF No. 141-6. Dwyer testified that he and the other MRT captains were made aware of the media exemption and communicated about it to their subordinates. See Dwyer Dep. 170:8-19, 181:7-22, ECF No. 141-1. Engeldinger, however, testified that he was not made aware of the media exemption. See Engeldinger Dep. 115:11-17, ECF No. 141.

In the early-morning hours of May 29, several MSP members arrested a group of CNN journalists on live television. (Engeldinger was one of the MSP members involved in the arrest. See Engeldinger Dep. 122:13-18.) The incident drew swift condemnation from the Governor, and Huettl recalled having a discussion with some of the MRT captains after the CNN arrest to ensure that the media would have a safe place from which to report. See Huettl Dep. 97:14-98:4. For his part, Engeldinger did not recall having any discussion with Huettl about the CNN arrest. See Engeldinger Dep. 153:3-5. Dwyer, meanwhile, recalled having a conversation with Colonel Matthew Langer, the head of the MSP, about the importance of protecting the media, and Dwyer believed that he communicated a directive not to arrest media members to the other captains in the MRT. See Dwyer Dep. 166:18-167:24.

Around midday on May 30, Dwyer and Engeldinger attended a meeting with a number of other law-enforcement leaders at the Multi-Agency Command Center on the campus of the University of Minnesota. Accounts of the meeting vary, but the consensus among the attendees seems to be that the meeting ended with a decision that law enforcement would adopt a more aggressive approach to dealing with violent demonstrators. In addition, phrases such as “shock and awe” and “spectacular display of force” were uttered by attendees in connection with a plan for the MSP to enforce the 8:00 pm curfew via mass arrests of protestors who refused to disperse from the streets. See, e.g., Huettl Dep. 116:7-12; Engeldinger Dep. 133:17-135:4, 139:4-15; Dwyer Dep. 198:24-200:2. Engeldinger did not believe that the MRT was trained to use shock-and-awe tactics. See Engeldinger Dep. 141:11-19.

Later in the day, Dwyer and Engeldinger attended a general briefing of MRT members at which the plan to go on the offensive and employ mass arrests was relayed to the larger group. See, e.g., Engeldinger Dep. 144:18-146:5; Dwyer Dep. 203:7-206:4. Eck attended the meeting, and he understood the overall message to be that the MSP would attempt to take control of the ongoing civil unrest “using any means necessary,” including force. Eck Dep. 39:10-40:19, ECF No. 141-3. Another trooper who attended the briefing understood that the MSP's directive was to “fucking end” the rioting, but did not recall any specifics from the briefing itself. Johnson Dep. 66:2-8, ECF No. 13916. Lockman had no recollection of the meeting. See Lockman Dep. 115:3-23, ECF No. 141-2. No attendee recalls any specific mention of the media exemption to the curfew.

On the evening of May 30, the MRT was deployed near the Fifth Precinct headquarters in Minneapolis, in response to reports of a mass gathering of protestors and riotous behavior. The Fifth Precinct sits at the southeast corner of Nicollet Avenue (which runs north-south) and 31st Street (which runs east-west). Across Nicollet Avenue from the Fifth Precinct is a Metro Transit garage that takes up the entire block. One block north of the Fifth Precinct, Nicollet Avenue terminates into the parking lot of an abandoned K-Mart. There is no dispute that the MRT arrived at the Fifth Precinct intending to execute a mass arrest of protestors who defied the curfew by pushing them northward up Nicollet into the K-Mart parking lot, surrounding the lot on all sides with the help of the MPD, and arresting those who had been herded into the lot. See, e.g., Huettl Dep. 118:25-119:3; Engeldinger Dep. 145:25-147:23; Dwyer Dep. 199:22-200:9.

As soon as they arrived at the Fifth Precinct, the members of the MRT formed a north-facing line across the width of Nicollet Avenue, just south of the Fifth Precinct headquarters. Dwyer and Engeldinger (the supervisors) stayed behind the line in order to assess the crowd and direct the troopers on the line. See Engeldinger Dep. 164:13-18; Dwyer Dep. 215:16-23. Eck and Lockman were near the front of the line, roughly on the middle-left (west) side of it. See Lockman Dep. 126:18-20; Eck Dep. 125:8-15. Eck was the Lieutenant in charge of Lockman's squad. See Lockman Dep. 10:24-11:2. Like all of those on the line, Eck and Lockman were clad in riot gear-helmets, gas masks, and protective padding-and equipped with riot batons and Mark 9 pepper-spray canisters. See, e.g., id. at 11:24-12:5; Eck Dep. 110:9-23.

At the time that the MRT formed its line across Nicollet Avenue Cole and Hennessy-Fiske were across the street from the Fifth Precinct, near the tall cinder-block wall of the Metro Transit garage that runs the length of the block on the west side of Nicollet. Cole carried her camera and camera bag, and she was wearing her press credential, a bike helmet, a respirator, a pair of goggles, and a protective vest labeled “TV...