Gilmore v. City of Minneapolis

837 F.3d 827

John Hugh Gilmore, Plaintiff–Appellant

v.City of Minneapolis; Deitan Dubuc; Joshua Stewart ; Sergeant Thomas Ryan; Gregory Kosch; Mark Lanasa, Police Officers of the City of Minneapolis in both their offical and individual capacities, Defendants–Appellees

No. 15–2465

United States Court of Appeals, Eighth Circuit.

Submitted: February 9, 2016

Filed: September 13, 2016

Rehearing and Rehearing En Banc Denied October 26, 2016

Counsel who presented argument on behalf of the appellant was Mark Rudnick Miller, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was Sarah C.S. McLaren, of Minneapolis, MN.

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

John Hugh Gilmore appeals the district court's¹ adverse grant of summary judgment on his claims alleging violations of his First, Fourth, and Fourteenth Amendment rights, unlawful arrest under Minnesota law, and an unconstitutional policy under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We agree with the district court that the officers are entitled to qualified immunity for Gilmore's federal law claims, official immunity for Gilmore's state law claim, and that Gilmore has not made out a claim under Monell. We therefore affirm the judgment of the district court.

I. Background

Around 10 p.m. on June 16, 2011, police received a 911 call from Matthew Glazer, reporting a disturbance and a suspicious white male with gray hair, wearing sandals and all-black clothing, on Nicollet Mall. Glazer stated that the person described was yelling at people on the street, shouting racial slurs, and taking photos of the people he was targeting. When officers arrived on the scene in response to the 911 call, Glazer flagged them down. Glazer reported to the officers that a man, who was later identified as John Hugh Gilmore, had asked two women wearing hijabs their opinion of Ayaan Hirsi Ali,² and then began screaming racial slurs at them. Glazer also claimed that Gilmore had tried to assault him, and stated he thought Gilmore would try to hurt him again. Whether or not Gilmore actually engaged in the conduct described, he does not dispute that this is what Glazer told the officers when they arrived at the scene.

The officers proceeded to The News Room restaurant, where Glazer said Gilmore had gone. According to Gilmore, approximately five minutes after he arrived at the restaurant, Officers Deitan Dubuc and Joshua Stewart entered and asked to speak to him. When he refused, they escorted Gilmore out of the restaurant, using a wrist lock to force him to leave.³ Gilmore had drunk 3–4 glasses of wine that night, but he says he was not intoxicated.

After they left the restaurant with Gilmore, Officers Dubuc and Stewart sought to gather more information. According to the officers, Gilmore refused to speak with them about what had happened. Gilmore, on the other hand, alleges that he was not given an opportunity to tell the officers his side of the story, but that he was cooperative with them. Based on the information the officers had regarding the events of the evening and the fact that, from their perspective, Gilmore was “mad” and “refused to cooperate,” they handcuffed him and placed him in the back of their squad car.

The officers then interviewed several witnesses. Gilmore's friend, Paul Carlson, said he could not hear what was being said between Gilmore and the group of people he was allegedly yelling at, because he was across the street, but that Gilmore was 8–10 feet away from the group and his hands were in his pockets. The two women wearing hijabs reported that after they told Gilmore they did not think favorably of Ayaan Hirsi Ali but they “would agree to disagree,” Gilmore yelled, “Why did you come to my country and try to change us? You're in the [W]est here.” They relayed that Gilmore also made other comments that made them “fearful” and “terrified.” When Gilmore started taking photos of the women, Glazer inserted himself between the women and Gilmore. Another witness, Elisabeth Geschiere, confirmed the two women's story. The officers also spoke again to Glazer, who then filled out a citizen's arrest form on which he indicated that, during the confrontation, he asked Gilmore whether he knew the difference between assault and battery. Gilmore's alleged reply was, “I haven't hit anyone ... yet. Just wait.” Geschiere also expressed fear that Gilmore would hurt someone at the scene. Gilmore disputes the truth of the witnesses' statements, but does not dispute that this was the information given to the officers while he sat in the back of the police car.

Gilmore recounted a different version of events. He asserted that after attending a political gathering, he passed several women wearing hijabs near 11th Street and Nicollet Avenue, and asked them their opinion of Ayaan Hirsi Ali. Gilmore claimed that a “flash mob” of people from a progressive political conference suddenly appeared, surrounded him, and began aggressively yelling. Gilmore said that he pretended to make a phone call to a friend and to videotape the activists with his phone. He said he feared for his safety and was chased down Nicollet Mall before entering The News Room.

Gilmore also alleged that the officers first said they would release him if he agreed to leave the downtown area, and then changed their minds and decided to take Gilmore to jail. Before leaving the scene outside The News Room and while sitting in the police vehicle, Gilmore saw an officer rip up and throw away a political sign bearing the name of Gilmore's website that Gilmore had with him at the restaurant. Gilmore said he complained about the sign to the two officers in the front of the transport vehicle. The officers have stated they have no memory of the sign being destroyed, and further that prisoners in the back of a police transport vehicle have no way to communicate with officers sitting in the cab.

At the police station, Gilmore was charged with disorderly conduct and interference with lawful process, both misdemeanors. Officer Dubuc noted in his supplemental report that Gilmore was booked in part because he was intoxicated, which Gilmore denies, and because Dubuc feared that Gilmore would not comply with an order to leave the area and would instead return to the crowd and continue engaging in the allegedly disorderly conduct. Once at the Hennepin County Jail, Gilmore was processed for release. The charges against Gilmore were subsequently dropped.

II. Discussion

Gilmore contends the district court erred in granting summary judgment on his various claims. Viewing the facts in the light most favorable to the non-moving party, we review the district court's grants of summary judgment de novo. Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir. 2012) ; Fed. R. Civ. P. 56(a).

A. Fourth Amendment False Arrest Claim

“Qualified immunity shields government officials from liability and the burdens of litigation in a § 1983 action unless the official's conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1155 (8th Cir. 2014) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). “To overcome a defendant's claim of qualified immunity, the burden falls on [Gilmore] to show: ‘(1) the facts, viewed in the light most favorable to [Gilmore], demonstrate the deprivation of a constitutional right; and (2) the right was clearly established at the time of the deprivation.’ ” Id.(quoting Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010) ).

Gilmore alleges first that his arrest was not supported by probable cause. “A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause, and an officer is entitled to qualified immunity if there is at least ‘arguable probable cause.’ ” Borgman v. Kedley, 646 F.3d 518, 522–23 (8th Cir. 2011) (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005) ). A law enforcement officer has probable cause “when the totality of the circumstances at the time of the arrest ‘are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.’ ” Id. at 523 (quoting Fisher v. Wal–Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010) ). If an officer arrests a suspect under the mistaken belief that there is probable cause, arguable probable cause exists “if the mistake is ‘objectively reasonable.’ ” Id.(quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008) ).

Gilmore was arrested for disorderly conduct and obstructing legal process. Both are misdemeanors under Minnesota law. See Minneapolis, Minn., Code of Ordinances Title 15 § 385.90; Minn. Stat. § 609.72 subd. 1(3) ; Minn. Stat. § 609.50, subd. 1(1). Under Minneapolis's local ordinance, a person may be arrested for disorderly conduct when he “engage[s] in, or prepare [s], attempt[s], offer[s] or threaten[s] to engage in, or assist[s] or conspire [s] with another to engage in, or congregate[s] because of, any riot, fight, brawl, tumultuous conduct, act of violence, or any other conduct which disturbs the peace and quiet of another.” Minneapolis, Minn., Code of Ordinances Title 15 § 385.90. Gilmore's inmate booking sheet indicates he was arrested under the Minneapolis ordinance, but the state law governing disorderly conduct is slightly different. Under Minnesota law, a person is prohibited from engaging in “offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others,” when the person knows that such conduct or language “will tend to[ ] alarm, anger or disturb others or provoke an assault or breach of the peace.” Minn. Stat. § 609.72 subd. 1(3).

When deciding whether to arrest a subject, “[o]fficers may ‘rely on the veracity of information...