Mitchell v. Aitkin County et al

Filing 208

ORDER: (1) Defendant's Motion for Summary Judgment [ECF No. 163 ] is GRANTED IN PART and DENIED IN PART. (2) The Motion is GRANTED as to the alleged DPPA violations that occurred on: October 1, 2009; July 19, 2010; and September 6, 2011. (3) The Motion is DENIED as to the alleged DPPA violations that occurred on: October 4, 2009; October 10, 2011; and December 21, 2011. (Written Opinion) Signed by Judge Joan N. Ericksen on January 8, 2018. (CBC)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Dawn Mitchell,
Plaintiff,
v.

Case No. 13-cv-2167 (JNE/FLN)
ORDER

Aitkin County, et al.,
Defendant.

Jonathan Strauss, Sapientia Law Group PLLC, appeared for Dawn Mitchell.
Mark Hodkinson, Heley, Duncan & Melander, PLLP, appeared for the City of Edina.

Dawn Mitchell alleges that City of Edina police officers improperly accessed her
personal information on seven occasions in violation of the Driver’s Privacy Protection
Act (“DPPA”), 18 U.S.C. §§ 2721-2725. Edina has moved for summary judgment,
arguing that (a) there was no DPPA violation because Mitchell has not shown that the
accesses were for an impermissible purpose, (b) the officers have qualified immunity, and
(c) Edina is not directly or vicariously liable for the conduct of its officers under the
DPPA. For the reasons set forth below, the motion is granted in part and denied in part.

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BACKGROUND
Mitchell has been a news anchor and sports reports for the Fox 9 television station
for more than a decade. In January 2013, she received a notification from the Department
of Natural Resources that a former employee had impermissibly accessed her personal
information from a database maintained by the Driver and Vehicle Services (“DVS”)
division of the Department of Public Safety (“DPS”). Mitchell subsequently requested an
audit from DPS about other retrievals of her data. The audit revealed that her personal
DVS information had been viewed approximately 219 times by roughly 50 different
entities between 2005 and 2013. Because she had little or no direct contact with law
enforcement personnel associated with these police departments or cities, Mitchell
believed the obtainments of her DVS information were improper. Mitchell Dep. 8-9.
In August 2013, Mitchell brought suit against the entities under the DPPA, 42
U.S.C. § 1983, and state privacy law. This Court’s March 4, 2014 Order dismissed all of
the counts of her complaint. Mitchell appealed, and in August 2015, the Eighth Circuit
Court of Appeals reversed the dismissal of Mitchell’s timely DPPA claims against the
cities of Edina and Minneapolis. McDonough v. Anoka Cty., 799 F.3d 931 (8th Cir.
2015).
At issue now are seven DVS queries (or “accesses”) made by five Edina police
officers between October 2009 and December 2011. Those accesses are summarized
below:

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DATE

OFFICER

ACCESS TYPE

TIME

Oct. 1, 2009

Melander

License Plate Query
DVS Query

11:12 PM
11:13 PM

Oct. 1, 2009

Melander

DVS Query

11:44 PM 1

Oct. 4, 2009

Schultz

License Plate Query
DVS Query

10:45 PM
10:46 PM

July 19, 2010

Hubbard

License Plate Query
DVS Query

6:43 PM
6:44 PM

Sept. 6, 2011

Hubbard

License Plate Query
DVS Query

10:45 PM
10:46 PM

Oct. 10, 2011

Wagner

License Plate Query
DVS Query

11:53 AM
11:54 AM

Dec. 21, 2011

Buell

License Plate Query
DVS Query

11:57 PM (Dec. 20)
12:01 AM (Dec. 21)

Each DVS query of Mitchell’s personal information was preceded by a query of her
license plate. 2 The five officers conducted numerous license plate queries during their
respective shifts on the days and nights in question — i.e., Mitchell’s plate search was
one of many plate searches made by each officer during his patrol shift. See ECF No.
167-1. These plate searches were often followed by DVS searches. However, for three of
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Officer Melander made two October 1, 2009 queries at 11:44 PM, but these are treated
as a single query. “[S]equential accesses occurring within a several-minute time span
should be considered as one obtainment rather than several.” Tichich v. City of
Bloomington, 835 F.3d 856, 867 (8th Cir. 2016).
2
Plate queries generate information such as the vehicle owner’s name and license
number. See Hubbard Dep. 20-21.
3

the disputed accesses — October 4, 2009 (Schultz), October 10, 2011 (Wagner), and
December 21, 2011 (Buell) — the DVS search for Mitchell was the only DVS search that
the officer conducted during his shift. See ECF No. 196 at 4, 14.

STANDARD OF REVIEW
Summary judgment is proper “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). A genuine dispute exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). To support an assertion that a fact cannot be or is genuinely
disputed, a party must cite “to particular parts of materials in the record,” show “that the
materials cited do not establish the absence or presence of a genuine dispute,” or show
“that an adverse party cannot produce admissible evidence to support the fact.” Fed. R.
Civ. P. 56(c)(1)(A)-(B). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). In determining whether
summary judgment is appropriate, a court views the record and all justifiable inferences
in favor of the non-moving party. Liberty Lobby, 477 U.S. at 255.

DISCUSSION
The DPPA protects “personal information” contained in motor vehicle records.
“Personal information” is defined as “information that identifies an individual,” and
includes a person’s photograph, social security number, driver identification number,
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name, address, telephone number, and medical or disability information. 18 U.S.C.
§ 2725(3). Under the law, a state department of motor vehicles and its representatives
“shall not knowingly disclose or otherwise make available” personal information “about
any individual obtained by the department in connection with a motor vehicle record.” 18
U.S.C. § 2721(a)(1). A state or local agency may, however, use personal information for
certain permitted purposes, including “carrying out its functions.” 18 U.S.C.
§ 2721(b)(1). Therefore, to establish a violation of the DPPA, a plaintiff must show that
the defendant (1) knowingly (2) obtained, disclosed, or used personal information (3)
from a motor vehicle record (4) for a purpose not permitted. At issue here is the “purpose
not permitted” prong. The plaintiff in a DPPA action bears the burden of showing that her
information was accessed for such an impermissible purpose. See Kost v. Hunt, 983 F.
Supp. 2d 1121, 1133 (D. Minn. 2013).
Edina makes three principal arguments for summary judgment. First, it asserts that
Mitchell has failed to show that any of the DVS searches were for a purpose not
permitted under the DPPA. Second, it contends that the officers are entitled to qualified
immunity. And third, it argues that even if the searches were improper and its officers are
not entitled to qualified immunity, the City is neither directly nor vicariously liable for its
officers’ conduct.
The City’s motion is granted in part and denied in part. Summary judgment is
granted for four of the seven disputed accesses, but not for the searches conducted on
October 4, 2009 (Schultz), October 10, 2011 (Wagner), and December 21, 2011 (Buell).
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For those three queries, Mitchell has met her burden of showing that the purpose was
impermissible. The City’s qualified immunity and liability defenses also fail as to those
three searches.
A. Impermissible Purpose
Mitchell’s impermissible purpose argument centers on her claim that she was not
driving in Edina when any of the seven contested DVS accesses occurred. She contends
that because she was at work during each of those times, the officers had no legitimate
reasons for conducting searches of her license plate, let alone her personal information. In
support of this claim, Mitchell points to her deposition testimony and several pieces of
documentary evidence that, she maintains, confirm her whereabouts at the times in
question. Even viewed in the light most favorable to Mitchell, however, this evidence
fails to show that she was at work when the seven contested accesses occurred. For
example, Mitchell contends that she worked night shifts on the days that several of the
accesses were made. See Mitchell Dep.55- 57; Pl.’s Mem. Opp’n Summ. J. 16. But those
accesses occurred after 11:00 p.m., the time when Mitchell indicated a night shift might
end. Mitchell Dep. 59. Likewise, with regard to the remaining searches, neither Mitchell’s
testimony nor any of the evidence in the record establishes that she was at work during
the times in question. At best, it suggests that she was working on the days when the
searches occurred, but not at those times. See Mitchell Dep. 65-66, 69-70, 76.
Accordingly, a reasonably jury would not be persuaded that any of the seven accesses

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violated the DPPA simply on the basis of Mitchell’s argument that she was at work when
they were conducted.
However, the fact that Mitchell may not have been at work when the contested
accesses occurred does not settle the question of whether those accesses were improper.
Indeed, even if Mitchell was driving in Edina at these times, and even if the search of her
license plate was prompted by a legitimate law enforcement-related concern, the followon DVS search of her personal information could still be impermissible. For example, an
officer might have seen Mitchell’s car, conducted a license plate search, recognized her
name, and then — out of idle curiosity, and not for law enforcement purposes —
conducted a DVS search. In this scenario, the DVS query could be a DPPA violation
even though the plate search that preceded it was part of a legitimate law enforcement
practice. In other words, while it is true that plate-first searches are presumptively less
suspicious than searches directly by name, see Tichich v. City of Bloomington, 835 F.3d
856, 869 (8th Cir. 2016); Mallak v. Aitkin Cty., 9 F. Supp. 3d 1046, 1049 (D. Minn.
2014), the fact that a plate search occurs before a name search does not automatically
immunize the DVS search against a DPPA claim.
Against this background, the crucial inquiry in Mitchell’s case is not whether she
was driving in Edina during the searches, but whether the officers in question routinely
conducted DVS searches after license plate lookups. If they did, it would lend support to
the City’s claim that the searches of Mitchell’s records were proper. If they did not, it
would suggest that the query of her personal information was not a regular part of the
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officer’s patrol practice, as the City maintains, but that she was in fact singled out for an
improper DVS query.
The testimony relating to this key issue is inconclusive. Several officers testified
that they would often — or at least sometimes — run DVS searches after plate searches.
Melander Dep. 31; Schultz Dep. 21-23; Wagner Dep. 23-25. These officers claimed that
they did this because the two databases often offered conflicting information, so a more
thorough search of both sources was beneficial. See, e.g., Schultz Dep. 39. On the other
hand, at least one officer testified that he could not identify any reason why a DVS search
would be performed if the plate search yielded no suspicious information. Hubbard Dep.
24. This was corroborated by testimony from Jeff Elasky, the Edina Police Department’s
Deputy Chief. Elasky Dep. 172. On balance, then, the testimonial evidence does not
establish whether it was part of the officers’ routine practice to conduct DVS searches
after plate searches.
However, the record contains documentary evidence showing that at least some of
the DVS searches were isolated to Mitchell. For four of the searches — October 1, 2009
at 11:13 p.m. (Melander); October 1, 2009 at 11:44 p.m. (Melander); July 19, 2010 at
6:44 p.m. (Hubbard); and September 6, 2011 at 10:46 p.m. (Hubbard) — the Mitchell
DVS query was one of many such DVS queries that the officers conducted on the heels
of a plate lookup. ECF No. 196. But in three instances — October 4, 2009 at 10:46 p.m.
(Schultz); October 10, 2011 at 11:54 a.m. (Wager); and December 21, 2011at 12:01 a.m.
(Buell) — the Mitchell DVS query was the only DVS lookup that the officer conducted
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during his entire patrol shift, despite having conducted numerous plate searches. ECF No.
196 at 4, 14. For these three accesses, therefore, the City’s claim that Mitchell’s DVS
query was a routine part of each officer’s patrol regimen is untenable. A reasonable jury,
faced with these facts, could easily conclude that Mitchell was singled out for reasons
unrelated to official police business, and that she had therefore met her burden to show
impermissible purpose.
Accordingly, summary judgment as it relates to the accesses of October 4, 2009,
October 10, 2011, and December 21, 2011 — where the DVS hit on Mitchell was the
only such search performed by the officer that day — is denied. For the other four
searches, where the Mitchell DVS queries were part of a broader and more routine nameafter-plate practice, summary judgment is granted.
B. Qualified Immunity
The City argues that its motion should also be granted because the officers are
entitled to qualified immunity. Qualified immunity protects government officials from
liability “unless the official's conduct violates a clearly established constitutional or
statutory right of which a reasonable person would have known.” Brown v. City of
Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009). To determine if qualified immunity
exists, courts deploy a two-part analysis: (1) whether the facts alleged by the plaintiff
show a violation of a constitutional or statutory right, and (2) whether that right was
clearly established at the time of the defendant’s alleged misconduct. Saucier v. Katz, 533
U.S. 194, 201 (2001). Courts can address these prongs in whichever order they deem
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appropriate based on the circumstances of a case. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
For the four searches where Mitchell has failed to show an impermissible purpose,
the Court need not reach the qualified immunity argument because summary judgment is
appropriate on those claims for the reasons set forth above. However, for the Schultz,
Wagner, and Buell searches, the facts alleged show a violation of the DPPA, thereby
resolving the first question of the qualified immunity analysis. As to the second question,
the Court finds that the DPPA was clearly established between 2009 and 2011. See
Collier v. Dickinson, 477 F.3d 1306, 1311-12 (11th Cir. 2007); Rollins v. City of Albert
Lea, 79 F. Supp. 3d 946, 970 (D. Minn. 2014). Accordingly, for the three surviving
claims, qualified immunity is denied.
C. Direct Liability
The City’s argument that it is not liable for the accesses of its employees fails as
well. Edina contends that it can only be directly liable if the City itself knowingly
obtained Plaintiff’s DVS information for an impermissible purpose. This is an accurate
interpretation of the DPPA. See Rollins v. City of Albert Lea, 2016 WL 6818940, at *12
(D. Minn. Nov. 17, 2016). The City is also correct that there is no evidence that Edina
knowingly provided the officers with access to Plaintiff’s personal information for
improper purposes. However, while it is true that the City is not directly liable as a matter
of law, the City is vicariously liable as it relates to any impermissible searches by its
officers. See Rollins, 2016 WL 6818940, at *12; Taylor v. City of Amboy, 2016 WL
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5417190 at *2 (D. Minn. Sept. 27, 2016); Engebretson v. Aitkin Cty., 2016 WL 5400363
at *8 (D. Minn. Sept. 26, 2016). Accordingly, the City’s efforts to defeat summary
judgment on the basis of a liability argument do not succeed.

CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, and for
the reasons stated above, IT IS ORDERED THAT:
1. Defendant’s Motion for Summary Judgment [ECF No. 163] is GRANTED IN
PART and DENIED IN PART.
2. The Motion is GRANTED as to the alleged DPPA violations that occurred on:
October 1, 2009; July 19, 2010; and September 6, 2011.
3. The Motion is DENIED as to the alleged DPPA violations that occurred on:
October 4, 2009; October 10, 2011; and December 21, 2011.

Dated: January 8, 2018

Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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