Benjamin v. Peterson, Badge 5622 et al
Filing
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MEMORANDUM OPINION AND ORDER. Defendants' Motion for Summary Judgment (Doc. No. 21 ) is GRANTED IN PART and DENIED IN PART as follows: 1. Counts III, VII, VIII, IX, and X are DISMISSED WITH PREJUDICE. 2. Count IV is DISMISSED WITH PREJUDICE as it is asserted against Officer Peterson. (Written Opinion). Signed by Judge Donovan W. Frank on 6/18/2013. (BJS)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kelly Benjamin,
Civil No. 12-220 (DWF/SER)
Plaintiffs,
v.
MEMORANDUM
OPINION AND ORDER
J. Peterson, Badge 5622, in his individual
capacity acting under the color of law as a
Minneapolis police officer; Michael Frye,
in his individual capacity acting under the
color of law as a Minneapolis police officer;
City of Minneapolis, a political subdivision
of the state of Minnesota; City of St. Paul, a
political subdivision of the state of Minnesota;
Ramsey County, a political subdivision of the
state of Minnesota,
Defendants.
Peter J. Nickitas, Esq., Peter J Nickitas Law Office, LLC, counsel for Plaintiff.
Jason M Hiveley, Esq., Jon K. Iverson, Esq., and Stephanie A. Agnolkar, Esq., Iverson
Reuvers, LLC, counsel for Defendants.
INTRODUCTION
This action arises out of Plaintiff Kelly Benjamin’s arrest during the 2008
Republican National Convention (“RNC”) in St. Paul, Minnesota. Defendants have
moved for summary judgment (Doc. No. 21). For the reasons set forth below, the Court
grants in part and denies in part Defendants’ motion.
BACKGROUND
September 1, 2008 was the first day of the RNC. (Doc. No. 25, Neuberger Aff.
¶ 2.) Prior to the RNC, a Mobile Field Force (“MFF”) of approximately 1,000 officers
from multiple jurisdictions was organized to police the RNC events. (Id.) The MFF was
divided into separate, smaller divisions which contained four to six platoons, with each
platoon containing approximately sixteen officers. (Id.) Each division received
assignments and information from the East RNC Commander. (Id.)
Permitted marches on September 1, 2008 had ended by 3:00 p.m. (Id. ¶ 3.) After
this time, officers pursued a rioting group that was moving through St. Paul. (Doc.
No. 26, Angolkar Aff. ¶ 7, Ex. 6 (“Frye Report”).) Minneapolis Police Sergeant Dale
Burns recommended arrest of the group. (Angolkar Aff. ¶ 5, Ex. 4 (“Burns Dep.”) at 40;
Angolkar Aff. ¶ 3, Ex. 2 (“Neuberger Dep.”) at 11; Neuberger Aff. ¶ 6, Ex. 3 (“Video”).)
MFF Divisions 6 and 8 pursued the group into a parking lot by 9th Street and
Temperance. (Neuberger Dep. at 19; Video.)
Benjamin asserts that he was covering the RNC as a journalist, and that he was
wearing press credentials around his neck. (Benjamin Dep. at 19-22.) Before the group
entered the parking lot, Benjamin followed the officers during their pursuit of the group
and first encountered Officer Frye at a loading dock near 9th Street and Temperance.
(Angolkar Aff. ¶ 2, Ex. 1 (“Frye Dep.”) at 19; Frye Report.) Defendants assert that
Benjamin was told to leave, and was offered a route by which to leave, but that Benjamin
instead ran in the direction of the protestors and was ultimately arrested along with the
group in the parking lot. (Frye Dep. at 21-24.) Benjamin claims that as the officers
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pursued the protesting group, he asked the officers which way to go and that they directed
him to go towards the lot in which the arrests were made. (Angolkar Aff. ¶ 13, Ex. 12
(“Benjamin Dep.”) at 32-33.) 1 Benjamin asserts that there was no dispersal warning
given. (Doc. No. 31, Nickitas Decl. ¶ 3, Ex. 3 at ¶ 12.) The group entering the parking
lot consisted of about 100-150 people. (Frye Report; Burns Dep. at 25.) In the parking
lot, Benjamin was arrested as part of the group.
The parties dispute what occurred during the arrest. Defendants assert that
Benjamin did not comply when he was ordered to the ground and that he resisted arrest.
(Frye Dep. at 24.) Officer Frye assisted in arresting Benjamin and claims that he took
hold of Benjamin’s shirt and pulled him to the ground. (Frye Report; Frye Dep. at 24;
Benjamin Dep. at 54-55.) Officer Frye asserts that Benjamin grabbed his arm and said
“Don’t tear my shirt,” which required Officer Frye to reposition his grasp and use more
force to get Benjamin to the ground. (Frye Report.) Defendants also assert that once
Benjamin was on the ground, he kept his hands under his body and continued to resist
efforts to get his hands behind his back. (Angolkar Aff. ¶ 11, Ex. 10 (“Peterson Dep.”) at
22-23.) Officer Frye struck Benjamin twice on the leg with a baton and ordered him
1
Benjamin recorded part of the events leading to the arrest. The Court has
reviewed the recordings that were submitted by the parties. Defendants assert that
Benjamin’s own video shows an officer directing Benjamin back onto the sidewalk.
(Angolkar Aff. ¶ 10, Ex. 9.) Benjamin claims his only option was to go through a line of
bikes and officers and into the parking lot. (Benjamin Dep. at 59-60.) Officer Frye
disputes this and asserts that Benjamin could have gone in the opposite direction. (Frye
Dep. at 21-22.)
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again to show his hands. (Frye Dep. at 24- 27; Frye Report.) Defendants assert that
Benjamin also resisted being placed in handcuffs. (Frye Dep. at 27-28; Frye Report.)
Benjamin asserts that Officer Frye struck him with a baton without warning,
tossed him to the ground, and that he complied with the officers’ orders. (Benjamin Dep.
at 16, 52- 54 & 78; Nickitas Decl. ¶ 3, Ex. 3 at ¶ 11.) Benjamin claims that when ordered
to, he attempted to get to the ground, but while doing so he was also trying to prevent his
video camera from being damaged and to remove his backpack. (Benjamin Dep.
at 45-46, 54-55.) There is no dispute that Benjamin identified himself as “media” several
times. (Id. at 45; Frye Dep. at 28.)
Benjamin claims injuries due to the arrest, including a bruise to his back and pain
that required three acupuncture treatments, lacerations to his elbows, wrists and arms, as
well as emotional damages. (Id. at 17, 53-54.) Benjamin further alleges that his video
camera was destroyed when it was thrown against a brick wall during the arrest.
(Benjamin Dep. at 16, 77.)
Benjamin was booked by the Ramsey County Mobile Booking Team and
transported to Ramsey County Jail. (Benjamin Dep. at 68; Frye Dep. at 34, 38.)
Benjamin posted bail and was released on September 4, 2008. (Benjamin Dep. at 72-74;
Doc. No. 1, Compl. ¶¶ 66.4, 67.) Benjamin was charged with felony riot, but the charges
were subsequently dismissed. (Benjamin Dep. at 80, 88-89.)
On January 27, 2012, Benjamin filed this action, asserting the following causes of
action: unreasonable seizure under the Fourth Amendment (Counts I and III); unlawful
confinement under the Fourth Amendment (Count II); excessive force under the Fourth
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Amendment (Count IV); infringement of free speech (Count V); violation of his rights as
a journalist under 42 U.S.C. § 2000aa (Count VI); Monell claims against the cities of
St. Paul and Minneapolis (Count VII), conversion (Count VIII); negligence against the
City of Minneapolis, Defendant Frye, and Defendant Peterson (Count IX); and
unreasonable seizure against Ramsey County under Monell (Count X). In his opposition,
Benjamin agreed to dismiss his Monell claim against Ramsey County (Count X) and did
not offer an argument to support Counts III, VIII, or IX. Thus, the Court dismisses
Counts III, VIII, IX, and X.
DISCUSSION
I.
Legal Standard
Summary judgment is proper if there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy, and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d
at 747. The nonmoving party must demonstrate the existence of specific facts in the
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record that create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995). A party opposing a properly supported motion for summary
judgment “may not rest upon the mere allegations or denials of his pleading, but must set
forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986).
II.
Motion for Summary Judgment
A.
Claims Against Officers Peterson and Frye
Benjamin asserts claims under the First and Fourth Amendments against Officers
Peterson and Frye based on his arrest (Count I), confinement in jail (Count II), the
officers’ alleged use of excessive force (Count IV), and the alleged violation of
Benjamin’s First Amendment rights to freedom of the press (Count V). Defendants move
for summary judgment on these claims on the basis of qualified immunity.
The doctrine of qualified immunity protects state actors from civil liability when
their “conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The defense provides “ample room for mistaken judgments” as it protects “all
but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341, 343 (1986). To overcome the defense of qualified immunity, a
plaintiff must show that: (1) the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional or statutory right; and (2) the right was
clearly established at the time of the deprivation. Parrish v. Ball, 594 F.3d 993, 1001
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(8th Cir. 2010) (citation omitted). The Court has discretion to decide which qualified
immunity prong to consider first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
1.
Arrest and Confinement
Benjamin argues that his arrest and confinement violated his Fourth Amendment
rights (Counts I and II). Specifically Benjamin asserts that the officers lacked probable
cause for his arrest. (Compl. ¶ 79.) A warrantless arrest, unsupported by probable cause,
violates the Fourth Amendment. Baribeau v. City of Minneapolis, 596 F.3d 465, 478 (8th
Cir. 2010). Probable cause is defined as a reasonable probability that a crime has been or
is being committed. Id. at 474. In the context of qualified immunity, the Court
determines whether arguable probable cause existed to arrest. Amrine v. Brooks, 522
F.3d 823, 832 (8th Cir. 2008). The touchstone of the Fourth Amendment is
reasonableness under the particular circumstances presented. Samson v. California, 547
U.S. 843, 855 n.4 (2006). Thus, what is reasonable in riot conditions may not be
reasonable under calmer, less chaotic circumstances. See Bernini v. City of St. Paul, 665
F.3d 997, 1003 (8th Cir. 2012). The validity of a seizure may be based on the collective
knowledge of all law enforcement officers involved if communication exists between
them. See, e.g., United States v. Gregoire, Crim. No., 09-275, 2009 WL 5216844, at *18
(D. Minn. Dec. 29, 2009), aff’d 638 F.3d 962 (8th Cir. 2001) (finding probable cause
based on the collective knowledge of the police formed through outside information and
a warranted search). In the context of a large disturbance, the Fourth Amendment may be
satisfied if the officers have grounds to believe that all arrested persons were part the unit
violating the law. See, e.g., Bernini, 665 F.3d at 1003 (finding it reasonable to conclude
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that individuals exhibiting similar conduct were acting as a unit); Carr v. District of
Columbia, 587 F.3d 401, 408 (D.C. Cir. 2009) (finding probable cause to arrest people
exhibiting behavior that would identify them as being part of the group). Defendants
urge the Court to conclude that, as a matter of law, the ultimate arrest of Benjamin is
inconsequential because, based on the record, the officers had a reasonable basis to
believe that each person, including Benjamin, was part of the rioting crowd.
Here, the record contains evidence that, from the officers’ perspective, Benjamin
was, indeed, one of several individuals subject to a mass arrest that occurred after officers
pursued a rioting crowd through the streets of St. Paul. Benjamin, however, has pointed
to record evidence that he was at the scene of the arrest as a journalist covering the RNC,
he had laminated press credentials around his neck, and he announced several times that
he was “media” to the arresting officers. Benjamin also asserts that no dispersal warning
was given and that he asked the police for a route to leave the rioting crowd but was
directed into the area where the arrests occurred.
Based on the record before it, and viewing the facts in the light most favorable to
Benjamin, the Court concludes that fact issues exist as to the reasonableness of
Benjamin’s arrest, particularly in light of the evidence that Benjamin declared that he was
“media” and was wearing press credentials that were visible to the arresting officers.
Thus, even if the officers initially had a reasonable belief that Benjamin was part of a
rioting crowd, a reasonable juror could conclude that this belief became unreasonable
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when Benjamin identified himself as a member of the press. Accordingly, the Court
denies Defendants’ motion for summary judgment as to Counts I and II. 2
2.
Excessive Force
Benjamin also asserts that Officers Frye and Peterson used excessive force in
arresting him. The Court evaluates excessive force claims under an
objective-reasonableness test. See Graham v. Connor, 490 U.S. 386, 394–95 (1989). In
determining whether the use of force is “reasonable” under the Fourth Amendment, a
court must balance “the nature and quality of the intrusion on the individual’s Fourth
Amendment interests” against the government’s interests at stake. Id. at 396 (citation
omitted). The reasonableness of the use of force must be judged from the “perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” See id.
The proper application of the Fourth Amendment “requires careful attention to the facts
and circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.
2
This case is distinguishable from Bernini because the officers in Bernini contained
the protest participants in a park but did not actually arrest them all. 665 F. 3d at 1002.
Officers assessed the crowd and identified participants for arrest because the group
appeared to stay together. Id. Roughly 200 of the approximately 400 people were
released. Id. It does not appear in this case that officers attempted to discern who was
actually involved in the riot and arrested everyone present in the parking lot.
Furthermore, the arrestees in Bernini did not identify themselves as “media,” as Benjamin
did in this case.
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The Court’s decision turns on the question of whether, taking the facts in the light
most favorable to Benjamin, Benjamin was subjected to excessive force so as to violate a
constitutional right and, if so, whether that right was clearly established at the time.
Benjamin argues that Officer Frye used unreasonable force in effecting his arrest. 3
Defendants contend that Officer Frye used force that was objectively reasonable.
Defendants assert that the record shows that Officer Frye pulled Benjamin to the ground
after Benjamin repeatedly failed to comply with orders to get on the ground, 4 and that
Officer Frye struck Benjamin’s leg with a baton after Benjamin refused to put his hands
behind his back. Defendants assert that these actions were reasonable. Defendants
further assert that Benjamin’s explanation as to why he was slow to comply with orders
to get on the ground (because he was not sure how officers wanted him to go to the
ground and because he was protecting his camera) reflect his subjective intentions and do
not affect the reasonableness of the officers’ actions. Finally, Defendants argue that
Benjamin does not have a sufficient injury to support an excessive force claim.
3
Other than placing the handcuffs on Benjamin, Benjamin does not identify any
specific use of force by Officer Peterson that could be reasonably considered excessive.
Liability under § 1983 is personal and must be independently assessed against each
defendant. Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006). There being no facts
to support an excessive force claim against Officer Peterson, the Court dismisses
Count IV as it is asserted against Officer Peterson.
4
After viewing the video footage, it is unclear exactly why Benjamin failed to
immediately follow instructions to get on the ground. There is an approximately 10-12
second delay between the time Benjamin was ordered to the ground and the time he was
taken to the ground. (Video.)
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In light of the Court’s conclusion that a reasonable juror could conclude that
Benjamin was unlawfully arrested, particularly in light of evidence that could show
Benjamin identified himself as media during the arrest, the Court also concludes that fact
issues remain as to whether the use of force to effect the arrest was also unreasonable.
Defendants also argue that Benjamin’s physical injuries—bruising to his back and
lacerations to knees, elbows, and wrist—were de minimis and therefore could not support
a finding of a constitutional violation. Prior to Chambers v. Pennycook, 641 F.3d 898,
901, 906 (8th Cir. 2011), it remained an open question whether an excessive force claim
required a minimum level of injury. 641 F.3d at 904, 908. Even so, for purposes of the
qualified immunity analysis here, the Court concludes that Benjamin’s alleged injury is
not de minimis. See, e.g., Copeland v. Locke, 613 F.3d 875, 881–82 (8th Cir. 2010)
(finding lacerations from handcuffs and an injury to the knee not de minimis). Instead,
Benjamin has pointed to sufficient evidence of actual injury to overcome Defendants’
assertions of qualified immunity on his excessive force claim.
For the above reasons, the Court denies Defendants’ motion for summary
judgment on Count IV as it pertains to Officer Frye.
3.
First Amendment
In Count V, Benjamin asserts that Defendants arrested him unlawfully while
Benjamin exercised his First Amendment rights. A citizen’s right to exercise First
Amendment freedoms without facing retaliation from the government is clearly
established. Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007). In support of their
motion, Defendants rely on their earlier arguments that Benjamin was validly arrested.
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Namely, Defendants argue that because Benjamin was validly arrested, he does not have
a First Amendment claim even if Benjamin was exercising his First Amendment rights at
the time of his arrest. Because the Court has denied Defendants’ motion for summary
judgment as to Benjamin’s claim for unlawful arrest, the Court also denies Defendants’
motion as to Benjamin’s First Amendment claim. The Court also points out that here,
unlike in Bernini, where the officers attempted to discern who was actually involved in
the criminal conduct, Officer Frye proceeded to arrest Benjamin and process him for
Ramsey County Jail after Benjamin identified himself as “media” and despite the fact
that Benjamin’s press credentials were in view and Benjamin was carrying a video
camera. While a reasonable juror could conclude that the officers were motivated by the
unlawful activity of the group in arresting Benjamin, viewing the facts in the light most
favorable to Benjamin, a reasonable juror could also conclude that Benjamin’s First
Amendment rights were violated by the continued processing of his arrest and booking in
jail after it became clear he was a member of the media.
B.
Monell Claim Against St. Paul and Minneapolis
In Count VII of his Complaint, Benjamin asserts Monell claims against the cities
of St. Paul and Minneapolis for their alleged failure to protect journalists’ rights during
the 2008 RNC. In support, Benjamin asserts that the cities failed to create, implement, or
execute an adequate policy on protecting the rights of journalists and that this failure
caused the alleged violations of Benjamin’s constitutional rights. (Compl. ¶¶ 101-108.)
It is well-established that a governmental entity cannot be held liable under § 1983
on a respondeat superior theory. Monell v. Dep’t of Social Servs., 436 U.S. 658, 691
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(1978). For a municipality to be liable under § 1983, a plaintiff must prove that a
municipal policy or custom was the “moving force [behind] the constitutional violation.”
Id. at 694.
Benjamin’s Monell claims fail because Benjamin has failed to point to evidence
that would demonstrate a widespread policy or custom that would require or cause an
individual’s constitutional rights to be violated. In support of his Monell claims,
Benjamin relies on a report that was prepared by a commission formed at the request of
the St. Paul Mayor and by action of the Saint Paul City Council after the RNC occurred.
(Nickitas Decl. ¶ 4, Ex. 4 (“Heffelfinger Report”).) The portions of the report relied upon
consist of findings and legal conclusions that constitute hearsay, which cannot be relied
on to oppose summary judgment.
Based on the record before it, the Court concludes that there are no facts that could
lead a reasonable juror to find for Benjamin on his Monell claims. Accordingly, Count
VII is properly dismissed.
C.
42 U.S.C. § 2000aa
In Count VI, Benjamin brings a claim under the Privacy Protection Act, 42 U.S.C.
§§ 2000aa, et seq. (the “Act”). The Act “generally prohibits government officials from
searching for and seizing documentary materials possessed by a person in connection
with a purpose to disseminate information to the public.” Citicasters v. McCaskill, 89
F.3d 1350, 1353 (8th Cir. 1996). There are certain exceptions to the Act’s prohibition of
searches and seizures, including when “there is probable cause to believe that the person
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possessing such materials has committed or is committing the criminal offense to which
the materials relate . . . .” § 2000aa(a)(1), (b)(1).
In support of their motion for summary judgment on this claim, Defendants argue
that Benjamin’s cameras were inventoried with his other personal belongings because he
was arrested and that there is no evidence that his materials were seized for any other
reason. However, if a jury finds no probable cause existed for Benjamin’s arrest, and in
light of the fact that Benjamin was wearing press credentials, was carrying a video
camera, and identified himself as “media,” the jury could also reasonably conclude that
the officers should have been on notice that Benjamin intended to disseminate the
videotapes to the public.
Defendants also argue that Benjamin had no subjective expectation of privacy in
videotapes documenting public events. The Court finds this argument unpersuasive. See,
e.g., Binion v. City of St. Paul, 788 F. Supp. 2d 935, 948 (D. Minn. 2011) (noting that the
very purpose of the Act is to protect materials that document matters of public interest).
Defendants’ motion for summary judgment on Benjamin’s Privacy Protection Act
claim is denied.
CONCLUSION
The Court notes that while Benjamin might be able to establish at trial that his
arrest and the subsequent force used to effect the arrest were unreasonable, Benjamin’s
potential damages are likely minimal. The Court also notes that prevailing at the
summary judgment stage is no guarantee of victory at trial.
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ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that Defendants’ Motion
for Summary Judgment (Doc. No. [21]) is GRANTED IN PART and DENIED IN
PART as follows:
1.
Counts III, VII, VIII, IX, and X are DISMISSED WITH
PREJUDICE.
2.
Count IV is DISMISSED WITH PREJUDICE as it is asserted against
Officer Peterson.
Dated: June 18, 2013
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
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