Timothy Galarnyk v. Tom Fraser, et al

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, MICHAEL J. MELLOY and LAVENSKI R. SMITH. William Jay Riley, Authoring Judge (PUBLISHED) [3939730] [11-3065]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3065
___________________________
Timothy Galarnyk
lllllllllllllllllllll Plaintiff - Appellant
v.
Tom Fraser
lllllllllllllllllllll Defendant - Appellee
Mike Martin; Unknown Supervisor of Tom Fraser; Unknown Minneapolis Police
Officers; Unknown Minnesota State Patrol/Troopers; and City of Minneapolis
lllllllllllllllllllll Defendants
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: May 16, 2012
Filed: August 7, 2012
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Before RILEY, Chief Judge, MELLOY and SMITH, Circuit Judges.
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RILEY, Chief Judge.
On August 9, 2007, Minnesota State Patrol (MSP) Captain Thomas Fraser
detained Timothy Galarnyk at the site of the collapse of the I-35W bridge in
Minneapolis, Minnesota. Galarnyk appeals the district court’s1 adverse grant of
summary judgment on Galarnyk’s 42 U.S.C. § 1983 false arrest and First Amendment
retaliatory arrest claims against Captain Fraser. We affirm.
I.

BACKGROUND
On August 1, 2007, the I-35W bridge in Minneapolis, Minnesota, tragically
collapsed into the Mississippi River. Several federal and state agencies responded,
including the United States Occupational Safety and Health Administration (OSHA),
the National Transportation Safety Board (NTSB), the Minnesota Occupational
Safety and Health Administration (MnOSHA), and the Minnesota Department of
Transportation (MnDOT). The MSP assigned Major Michael Asleson, Captain
Fraser, and others to provide safety and security at the site.
Galarnyk, an experienced bridge and construction safety consultant, is the chief
executive officer of Construction Risk Management, Inc. (CRM), a private consulting
company. The day the bridge collapsed, Galarnyk discussed the cause of the collapse
on a local broadcast of a FOX News affiliate. On August 2, 2007, Galarnyk again
appeared on media outlets such as CBS and FOX News, criticizing MnDOT’s
inspections of the bridge before the collapse. Galarnyk later appeared on CNN, FOX
News national (Geraldo at Large), and Al Jazeera.
Later on August 2, 2007, Galarnyk went to the collapse site, wearing a hard hat
and a reflective vest identifying CRM. Galarnyk had no official purpose at the site,

1

The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota.
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but was curious and thought he could help. Galarnyk was also concerned about a
possible cover-up by MnDOT.
On Galarnyk’s first visit to the collapse site, the emergency command center
was not secure. Galarnyk went to the command center and mingled with officials
from several agencies. Galarnyk met Captain Fraser there, advised him of his
expertise and safety concerns, and gave him his CRM business card. Major Asleson
and Mark Hysell, OSHA Director for the Northwest area of Wisconsin, also indicated
they spoke with Galarnyk about his reason for being at the site that day.
After Galarnyk’s first visit, law enforcement officers relocated the command
center and secured the collapse site and command center with a fence and a manned
entry gate. Law enforcement officers treated the collapse site like a crime scene
because of the loss of life and the ongoing investigation.
On August 8, 2007, Galarnyk contacted the NTSB to ask about the
investigation. Galarnyk states an NTSB hotline operator asked Galarnyk to come to
the site the next day at 10:00 a.m. to meet with Dan Walsh, a senior NTSB
investigator. When Galarnyk arrived at the site on August 9, 2007, the MnDOT
official manning the entry gate allowed Galarnyk into the secure area and directed
him to the trailer occupied by the NTSB and MnDOT (NTSB trailer). A second
trailer at the command center was occupied by OSHA and MnOSHA on one end and
MSP on the other, with a conference room between them.
Galarnyk estimates he spoke with Walsh for no more than twenty minutes.
After leaving the NTSB trailer, Galarnyk, without authorization, entered the OSHA
trailer to find out who was in charge of safety at the site. Once inside, Galarnyk
interrupted a safety meeting involving Sandra Taylor, Deputy Regional Administrator
for OSHA with responsibility for safety and health management activities for
Minnesota; Julie Libonate, a MnDOT Safety Supervisor; and a private contractor.
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Having entered the doorway to the conference room where the meeting was
taking place, Galarnyk interjected his unsolicited opinions into the discussion and
criticized the meeting’s participants—“two gals”—because he believed they had “not
nar’ one clue” about safety. When Galarnyk disrupted the private meeting, Taylor
and the private contractor asked Galarnyk to identify himself.
As Galarnyk responded, Hysell, who knew Galarnyk before the collapse,
entered the OSHA trailer and joined the discussion. At his deposition, Galarnyk
recounted the following exchange with Hysell:
Hysell:

What are you doing here Galarnyk?

Galarnyk:

I’m just asking—listening to this thing, and I can’t believe
that these people would be asking if they could violate the
federal law.

....
Hysell:

You don’t belong here.

Galarnyk:

Well, that’s fine. I’m going to leave.

....
Hysell:

[Y]ou don’t belong here and you’ve got to get out of here.

Galarnyk:

[Hysell], somebody’s got to watch safety because
apparently you’re not. To allow [the private contractor] to
ask—even ask that [safety] question is absurd. You want
somebody else to get killed on this job or haven’t you had
enough?

Hysell:

I think you should leave.

Galarnyk:

That’s fine.
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Galarnyk then left. Galarnyk maintains the entire chain of events took no more
than ninety seconds and he left the OSHA trailer the first time he was asked. Citing
the recorded interview transcript, Captain Fraser emphasizes that in Galarnyk’s
contemporaneous interview with the police, Galarnyk stated he was asked to leave
by the private contractor, a female OSHA employee, and Hysell before he finally left.
In affidavits submitted in support of summary judgment, Taylor and Libonate averred
Galarnyk became confrontational and argumentative and was repeatedly asked to
leave.
While Hysell and Taylor spoke with Galarnyk, Libonate went to the MSP
command center to request assistance removing Galarnyk from the meeting. Captain
Fraser and Major Asleson were in the MSP command center when Libonate reported
“[W]e need your help here. We have a situation. We have a man who is not
supposed to be here and he won’t leave.”
Captain Fraser left the command center to enter the OSHA side of the trailer,
but Galarnyk had already left the trailer and was walking to his car. When Captain
Fraser reached Galarnyk’s car, Galarnyk was already pulling away. Captain Fraser
knocked on the window and directed Galarnyk to park his car and exit so Captain
Fraser could speak with him. Galarnyk complied and told Captain Fraser and Major
Asleson, who had joined them, that Galarnyk had a right to be in the area to meet with
the NTSB. Galarnyk maintains Captain Fraser and Major Asleson were aware he was
on site to meet with the NTSB because they had seen him arrive for the meeting.
Major Asleson then told Captain Fraser that he had previously told Galarnyk
to leave the secure area and not return. Galarnyk contends neither Major Asleson nor
anyone else ever told Galarnyk he was not “welcome and invited to be in the area”
until Hysell asked him “to leave the OSHA trailer only, not the entire site.”
According to Galarnyk, when Major Asleson told Galarnyk, “We told you never to
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come back here and stay away from this site,” Galarnyk replied, “I don’t even know
who you are. I have never seen you before in my entire life.”
Galarnyk recalls Captain Fraser then asked Major Asleson, “Do you know who
that guy is? He was on Geraldo. We’ve got to keep him locked up in a deep, dark
room so he doesn’t get any more information as long as we can.” Major Asleson
advised Galarnyk they were going to detain him and directed Captain Fraser to escort
Galarnyk to the Minneapolis Police Department (MPD) command post. As Captain
Fraser did so, Galarnyk called his contact at FOX News, Geraldo Rivera’s brother
Craig, and told him the police were arresting Galarnyk to prevent him from speaking
to Geraldo.
Captain Fraser did not tell Galarnyk he was under arrest, take his keys, or
handcuff him. Captain Fraser took Galarnyk by the arm to lead him to the MPD
command post, but let go when Galarnyk did not resist. Galarnyk asked Captain
Fraser what would happen if he did not follow him to the MPD command post.
Captain Fraser replied Galarnyk “probably wouldn’t like the answer.” Galarnyk
complied.
Galarnyk asserts when Captain Fraser turned him over to the MPD, Captain
Fraser repeated his statement about keeping Galarnyk locked up because he was
providing information about the bridge collapse to Geraldo. An MPD officer
handcuffed Galarnyk, searched him, placed him in a squad car and transported him
to the police department where an MPD officer interviewed Galarnyk before putting
him in a jail cell. Galarnyk was released later that night. No criminal charges were
filed.
Galarnyk sued Captain Fraser and others asserting, among other things, false
arrest and First Amendment retaliatory arrest claims. Captain Fraser moved for

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summary judgment, which the district court granted. Galarnyk appeals the adverse
grant of judgment on his constitutional claims against Captain Fraser.
II.

DISCUSSION
A.
Standard of Review
“We review the district court’s grant of summary judgment de novo, viewing
the record in the light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor.” Chambers v. Pennycook, 641 F.3d 898,
904 (8th Cir. 2011). Summary judgment is required “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a).
B.
False Arrest
Galarnyk contends the district court erred in concluding Captain Fraser (1) did
not cause Galarnyk’s arrest, and (2) was entitled to qualified immunity because
Captain Fraser had probable cause to arrest Galarnyk. Captain Fraser responds it
makes no difference “whether Fraser’s interaction with Galarnyk constituted an
investigative stop, the cause of Galarnyk’s arrest, or an actual arrest” because Captain
Fraser “had probable cause or arguable probable cause” to arrest Galarnyk for
trespass. We agree.
“Qualified immunity shields government officials from federal suit unless their
conduct violates a clearly established constitutional or statutory right of which a
reasonable person would have known.” Anderson v. Larson, 327 F.3d 762, 769 (8th
Cir. 2003) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A warrantless arrest is reasonable under the Fourth Amendment where
it is supported by probable cause. See Devenpeck v. Alford, 543 U.S.
146, 152 (2004). Probable cause exists when the facts and
circumstances within an officer’s knowledge are sufficient to lead a
person of reasonable caution to believe that the suspect has committed
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or is committing a crime. Brinegar v. United States, 338 U.S. 160, 17576 (1949). In a claim for damages, officers are “entitled to qualified
immunity if they arrest a suspect under the mistaken belief that they
have probable cause to do so, provided that the mistake is objectively
reasonable”—that is, officers are not liable if they had “arguable
probable cause” to make the arrest. Amrine v. Brooks, 522 F.3d 823,
832 (8th Cir. 2008).
Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012), petition for cert. filed,
___ U.S.L.W. ___ (U.S. June 6, 2012) (No. 11-1490).
Here, the undisputed facts and circumstances presented to Captain Fraser when
he encountered Galarnyk at the restricted collapse site provided probable cause to
arrest Galarnyk for trespass under Minnesota law. See Green v. Nocciero, 676 F.3d
748, 751-52 (8th Cir. 2012) (concluding arresting officers who reasonably relied on
information indicating a civil rights activist was disruptive and refused to leave a
public meeting when requested were entitled to qualified immunity because the
information, even if inaccurate, provided probable cause to arrest the activist for
trespass under Missouri state law); State v. Occhino, 572 N.W.2d 316, 319 (Minn. Ct.
App. 1997) (explaining “[a] disruptive and hostile individual [who lawfully entered
a government facility had] no legal right to remain on the premises after being
ordered to leave” and could be arrested for trespass). Under Minn. Stat. § 609.605,
subd. 1(b)(3), “[a] person is guilty of a misdemeanor if the person intentionally . . .
trespasses on the premises of another and, without claim of right, refuses to depart
from the premises on demand of the lawful possessor.”2

2

Captain Fraser also asserts the information from Major Asleson provided
probable cause to believe Galarnyk violated Minn. Stat. § 609.605, subd. 1(b)(8),
which states a person trespasses if he intentionally “returns to the property of
another within one year after being told to leave the property and not to return, if
the actor is without claim of right to the property or consent of one with authority
to consent.” We need not address this assertion directly.
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Although Galarnyk presumably was authorized to enter the restricted collapse
site for the limited purpose of meeting with the NTSB, Galarnyk did not leave the site
when that purpose ended. Instead, Galarnyk admittedly entered the OSHA
trailer—without invitation or permission—and interrupted an ongoing private safety
meeting, “chid[ing] the OSHA employees for their lax safety policies.” Even if we
accept Galarnyk’s statement he left the OSHA trailer the first time he was asked, and
grant all reasonable inferences in Galarnyk’s favor, Captain Fraser, based on the
undisputed facts known to him at the time, reasonably could have believed Galarnyk
was trespassing in a restricted area.
Captain Fraser was entitled to rely on Libonate’s credible report that Galarnyk
was not supposed to be in a restricted area and refused to leave. See Borgman v.
Kedley, 646 F.3d 518, 523 (8th Cir. 2011) (“Officers may ‘rely on the veracity of
information supplied by the victim of a crime.’” (quoting Fisher v. Wal-Mart Stores,
Inc., 619 F.3d 811, 817 (8th Cir. 2010))). Likewise, Captain Fraser could reasonably
credit Major Asleson’s statement that he had previously ordered Galarnyk not to
return to the collapse site.
Galarnyk maintains no one previously ever told him to stay away from the site,
and on August 9, he left when asked. But the accuracy of the information Captain
Fraser received from Libonate and Major Asleson is not determinative in evaluating
whether probable cause existed at the time of Galarnyk’s purported arrest. See Green,
676 F.3d at 751-52; cf. Borgman, 646 F.3d at 522 (explaining qualified immunity
“provides ‘ample room for mistaken judgments’” and reasonable errors) (quoting
Malley v. Briggs, 475 U.S. 335, 343 (1986)).
Galarnyk himself testified Major Asleson advised Captain Fraser that Major
Asleson warned Galarnyk not to return to the collapse site. Galarnyk vehemently
denied the accusation, but Captain Fraser could reasonably rely on Major Asleson’s
statement despite Galarnyk’s denial. See Borgman, 646 F.3d at 524 (explaining an
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officer “need not rely on an explanation given by the suspect”). An officer “faced
with conflicting information that cannot be immediately resolved” may still have
probable cause and “need not conduct a ‘mini-trial’ before effectuating an arrest.”
Id. at 523 (quoting Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999)). Because
Galarnyk’s presence at the restricted site and Libonate’s and Major Asleson’s
ostensibly credible statements established probable cause to arrest Galarnyk for
trespass, Galarnyk’s false arrest claim fails. See Anderson, 327 F.3d at 770 (“A claim
of false arrest brought pursuant to § 1983 fails if the officer had probable cause to
make the arrest.”).
We also reject Galarnyk’s contention that Captain Fraser was not entitled to
qualified immunity on Galarnyk’s false arrest claim because Captain Fraser (1) never
articulated trespass as the basis for detaining Galarnyk, and (2) “actually arrested
[Galarnyk] out of retaliation for Galarnyk’s protected speech activities.”
[A]n arresting officer’s state of mind (except for the facts that he knows)
is irrelevant to the existence of probable cause. That is to say, his
subjective reason for making the arrest need not be the criminal offense
as to which the known facts provide probable cause.
Devenpeck, 543 U.S. at 153 (internal citations omitted). The district court did not err
in “find[ing] no constitutional violation in Galarnyk’s arrest.” “The Fourth
Amendment’s concern with reasonableness allows certain actions to be taken in
certain circumstances, whatever the subjective intent.” Id. (quoting Whren v. United
States, 517 U.S. 806, 814 (1996)) (internal marks omitted).
C.
First Amendment Retaliatory Arrest
That Captain Fraser had probable cause to arrest Galarnyk for trespass is also
fatal to Galarnyk’s First Amendment retaliatory arrest claim. See McCabe v. Parker,
608 F.3d 1068, 1075 (8th Cir. 2010). In McCabe, we held the “[l]ack of probable
cause is a necessary element of” a First Amendment retaliatory arrest claim. Id.
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In Reichle v. Howards, ___ U.S. ___, ___ , 132 S. Ct. 2088, 2091, 2093 (2012),
the Supreme Court determined “two federal law enforcement agents [were] immune
from suit for allegedly arresting a suspect in retaliation for his political speech, when
the agents had probable cause to arrest the suspect for committing a federal crime.”
The Supreme Court concluded “that, at the time of [the defendant’s] arrest [in 2006],
it was not clearly established that an arrest supported by probable cause could violate
the First Amendment.” Id. at ___, 132 S. Ct. at 2093. The Supreme Court declined
to decide “whether a First Amendment retaliatory arrest claim may lie despite the
presence of probable cause to support the arrest,”3 id., leaving our conclusion in
McCabe intact. Accordingly, the district court did not err in holding the presence of
probable cause to arrest Galarnyk for trespass defeated Galarnyk’s First Amendment
retaliatory arrest claim.
III.

CONCLUSION
We affirm.
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The Supreme Court reasoned in Reichle that it had “never recognized a
First Amendment right to be free from a retaliatory arrest that is supported by
probable cause.” Id.
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