Kaplan v. Harrington

1

Zoe Kaplan, Jack Flom, and Samira Hassan, on behalf of themselves and other similarly situated individuals, Plaintiffs, v. Minnesota Department of Public Safety Commissioner John Harrington, in his individual and official capacity; Minnesota Department of Natural Resources Commissioner Sarah Strommen, in her individual and official capacity; Minnesota State Patrol Colonel Matthew Langer, in his individual and official capacity, Hennepin County Sheriff David Hutchinson, in his individual and official capacity; John Does 1-10, in their individual and official capacities, Defendants.

CIVIL No. 22-0640 (JRT/JFD)

United States District Court, D. Minnesota

February 7, 2023

Kevin C. Riach, THE LAW OFFICE OF KEVIN C. RIACH, P.O. Box 270815 Vadnais Heights, MN 55127, for Plaintiffs.

Alexander Hsu, Joseph D. Weiner, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, 445 Minnesota Street, Suite 1100, Saint Paul, MN 55101, for Defendants John Harrington and Matthew Langer.

Oliver J. Larson, Peter J. Farrell, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, 445 Minnesota Street, Suite 1400, Saint Paul, MN 55101, for Defendant Sarah Strommen.

Devona L. Wells and Sarah C. S. McLaren, HENNEPIN COUNTY ATTORNEY'S OFFICE, 300 South Sixth Street, Suite A2000 Minneapolis, MN 55487, for Defendant David Hutchinson.

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

JOHN R. TUNHEIM UNITED STATES DISTRICT JUDGE

Plaintiffs Zoe Kaplan, Jack Flom, and Samira Hassan allege they were peacefully protesting the killing of Daunte Wright outside the Brooklyn Center City Hall when John Doe Defendants used excessive force, arrested them, and held them in violation of their federal constitutional and state rights. Plaintiffs purport to represent a class of protesters who experienced similar treatment. Plaintiffs allege that former Commissioner John Harrington, Commissioner Sarah Strommen, Colonel Matthew Langer, and former Sheriff David Hutchinson, conspired to retaliate against them for exercising their First Amendment rights. Commissioner Harrington, Commissioner Strommen, and Colonel Langer (the “State Defendants”) moved to dismiss the claims against them for lack of subject matter jurisdiction, and all Defendants moved to dismiss for failure to plead any plausible theories of liability.

The Court finds that Plaintiffs have standing to sue the State Defendants for injunctive relief and therefore the Court has subject matter jurisdiction. However, the Court will dismiss all official capacity claims against State Defendants and Hutchinson because they are based on the theories of civil conspiracy and retaliation, and the Court concludes that Plaintiffs have not plausibly pled either that Defendants conspired to violate protesters' rights, or that Defendants acted with ill will towards protesters. For the same reasons, the Court will dismiss the civil conspiracy and retaliation claims against all Defendants in their individual capacity.

The Court also will dismiss the claims against Commissioner Strommen in her individual capacity because Plaintiffs do not plausibly plead her involvement-or that of any DNR officer-in the alleged offenses.

As to whether Commissioner Harrington, Colonel Langer, or Sheriff Hutchinson may be held individually liable for the alleged First Amendment, Fourth Amendment, and excessive detention claims, the Court will conclude that Plaintiffs do not plausibly plead that any named Defendant was on notice of a pattern of misconduct such that they failed to train-or to supervise-any John Doe Defendant. The Court will also dismiss the failure to intervene claims because Plaintiffs fail to plead that Defendants had an opportunity to intervene in any instance of excessive use of force, and the false arrest claims because none of the named Defendants arrested the named Plaintiffs. The individual capacity claims against Hutchinson will be dismissed without prejudice because Plaintiffs may be able to allege sufficient facts in the case against the former Sheriff since he was present during the protests. Finally, the Court will dismiss without prejudice all claims against John Doe Defendants because Plaintiffs have not identified them, and Plaintiffs have not pled sufficient detail at this time to identify them with limited discovery.

BACKGROUND

I. FACTS

On April 11, 2021, Daunte Wright was shot and killed by Kimberly Potter, a 26-year police veteran. Wright's death sparked large protests against police use of force. This case arises from the law enforcement response to these protests, which took place primarily outside of the police department headquarters at Brooklyn Center City Hall. (Compl. ¶ 15, Mar. 10, 2022, Docket No. 1.) Plaintiffs Zoe Kaplan, Jack Flom, and Samira Hassan allege they were peaceful participants at these protests between April 13 and April 14, 2021. (Id. ¶¶ 1-3.)

The Defendants are former Minnesota Department of Public Safety Commissioner John Harrington, Minnesota Department of Natural Resources Commissioner Sarah Strommen, Minnesota State Patrol Colonel Matthew Langer, former Hennepin County Sheriff David Hutchinson, and John Doe agents of the Minnesota State Patrol, Minnesota Department of Natural Resources, and Hennepin County Sheriff's Office. (Id. ¶¶ 4-8.) All Defendants were sued in both their individual and official capacities. Plaintiffs argue that Defendants, by and through their corresponding agencies, used excessive force, arrested them, and held them in violation of their federal constitutional and state rights. (Id.)

A. Law Enforcement Response

In response to the protests, Governor Tim Walz issued an Emergency Executive Order on April 12, declaring a peacetime state of emergency in seven Minnesota counties and authorizing federal, state, and local agencies to respond to the emergency. (Decl. Sarah McLaren (“McLaren Decl.”), Ex. 4, Docket No. 16-4.) Governor Walz ordered a curfew in four metro-area counties, including Hennepin County, starting at 7:00 p.m. on April 12 until 6:00 a.m. on April 13. (Compl. ¶ 18.) City-wide curfews were also ordered on April 13, 14, and 16 in Brooklyn Center. (Id. ¶¶ 19-21.) Defendants' corresponding agencies provided much of the law enforcement resources in response to the protests. (Id. ¶ 16.) After law enforcement arrested protesters, Hennepin County sheriff's deputies booked, processed, and detained protesters at the Hennepin County jail. (Id. ¶ 59.) The agencies coordinated this response through Operation Safety Net (“OSN”), which was an unincorporated association of law enforcement agencies that had been assembled to conduct crowd control operations during the murder trial of Derek Chauvin, which was ongoing during the protests of the murder of Daunte Wright. (Id. ¶ 22.) Plaintiffs allege that OSN members acted in concert with one another during the protests and that OSN “operated as a vehicle by which the Defendants conspired to and did violate Plaintiffs' constitutional rights.” (Id. ¶ 27.)

Soon after the death of Mr. Wright, the Brooklyn Center Police Chief resigned. (Id. ¶ 31.) Defendant Hutchinson assumed operational command of the law enforcement officers at the scene. (Id.) He was also physically present at the protests and acted as the on-site commander. (Id. ¶ 32.)

B. Zoe Kaplan's Arrest

Plaintiff Zoe Kaplan^[1] alleges that around 9:20 p.m. on April 13, 2021, they and several dozen other members of the putative class were clustered in a group facing a line of state troopers and state conservation officers when the Defendants “periodically and without warning fired less-lethal munitions and tear gas into the crowd of peaceful protesters.” (Id. ¶ 37.) The Complaint alleges that Kaplan and the other protesters were not looting, rioting, engaged in arson, violating curfew, or otherwise engaging in violence, but Kaplan acknowledges that a fire was started by someone. (Id. ¶¶ 37, 105.) The state troopers and state conservation officers then encircled the protesters and conducted mass arrests. (Id. ¶ 38.)

Kaplan's and the other protesters' arrests were captured on video by Unicorn Riot, which is an independent media outlet.^[2] (Id. ¶ 37.) The video footage shows some of the events that preceded Kaplan's arrest.^[3] The video shows that officers ordered the crowd to vacate to the north and for media to leave the area. (McLaren Decl. Ex. 2, at 00:02:1700:02:25, 00:02:52-00:02:58.)^[4]Moments later, some type of munition was deployed either by law enforcement or an individual near the umbrellas wielding crowd. (Id. at 00:02:38-00:02:42.) The video shows law enforcement officers deploying gas cannisters in response to the munition and individuals kicking the cannisters back at law enforcement. (Id. at 00:06:56-00:07:35, 00:11:57-00:12:10.) The video also shows a fire that was started by protesters before the police moved to conduct mass arrests. (Id. at 01:40:58.)

Kaplan and others were arrested at approximately 9:30 p.m. (Compl. ¶ 38.) The criminal complaint against Kaplan states that a “trooper observed and made contact with an individual who laid down on the ground and failed to leave the area after the assembly was declared unlawful and multiple disperse [sic] orders were announced.” (Id. ¶ 94.)

Kaplan was detained and jailed for approximately 40 hours and was ultimately charged with presence at an unlawful assembly. (Compl. ¶¶ 93-94.)

C. Jack Flom's Arrest

Plaintiff Jack Flom arrived at the protest roughly between 9:30-10:00 p.m. on April 13. (Compl. ¶ 101.) Flom alleges that a few minutes after arriving, the crowd began running towards Flom. (Id. ¶ 102.) The video shows that a separate vehicle had pulled up between the police officers and protesters, at which point law enforcement began to move towards the protesters and members of the crowd...