DeWalt et al v. City of Brooklyn Park, The, Minnesota
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that: 1. The City's Motion for Summary Judgment is GRANTED 26 ; and 2. DeWalt's Amended Complaint is DISMISSED with prejudice 7 . LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 05/17/2017. (LLM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Rodney DeWalt, and
DeWalt CEO, Inc.,
Case No. 15-cv-4355 (PAM/KMM)
MEMORANDUM AND ORDER
The City of Brooklyn Park, Minnesota,
a Minnesota municipal corporation,
This matter is before the Court on Defendant the City of Brooklyn Park’s Motion
for Summary Judgment. For the following reasons, the Motion is granted.
Plaintiff Rodney DeWalt is a black businessman who has been involved in the
restaurant and nightclub industry for more than 30 years. (DeWalt Dep. (Docket No. 292) at 14-15.) DeWalt is the sole owner of Plaintiff DeWalt CEO, Inc. (Id. at 24-25.)
“Gossip” and Creekside Plaza
In May 2014, DeWalt moved to Maple Grove, Minnesota, intending to open an
entertainment venue in the area called “Gossip.” (Id. at 44-46; Shepherd Aff. (Docket
No. 29-2) Ex. 12.) According to Gossip’s business plan, guests would “not only have the
ability to gather and eat, enjoy cocktails and socialize but also experience great
(Shepherd Aff. Ex. 12.)
Gossip’s anticipated competition was the
Dakota Jazz Club and the Fine Line Music Café, which are located in downtown
Minneapolis. (Id.) Gossip would have been open from 8 p.m. to 2 a.m. on Wednesday,
Thursday, Saturday, and Sunday, and from 6 p.m. to 2 a.m. on Friday. (Id.) Gossip
would host DJs, comedians, and other live entertainment, and would require a cover
charge for admission. (Id.)
DeWalt eventually identified a storefront (the “Property”) in Creekside Plaza, a
multi-tenant shopping center in the City of Brooklyn Park (the “City”), as a potential
location for Gossip “due to a high population of African Americans” in the area.
(DeWalt Dep. at 46; Am. Compl. (Docket No. 7) ¶ 6.) Creekside Plaza is bordered by
85th Avenue North to the south and Noble Parkway to the west. (Larson Aff. (Docket
No. 31) Ex. 1.) Two churches are located on the other side of Noble Parkway. (Id.)
Directly north and east of Creekside Plaza is a residential neighborhood. (Id.) Creekside
Plaza’s tenants include a gas station, a convenience store, a Chinese restaurant, a Papa
John’s Pizza, an Anytime Fitness, and a daycare center. (Sherman Aff. (Docket No. 30)
Ex. 3.) The Property is located between the daycare center and the Anytime Fitness.
Todd Larson, a senior planner for the City, informed DeWalt that Creekside Plaza
was zoned for the type of use DeWalt was proposing, but that Larson would need more
information about Gossip. Larson also informed DeWalt that he would need to apply for
a Conditional Use Permit (“CUP”). (Larson Aff. ¶ 3; DeWalt Dep. at 83-84.)
On January 22, 2015, DeWalt executed a 10-year Lease Agreement with
Creekside Realty Associates LLC to rent and occupy the Property. (Shepherd Aff. Ex.
21.) The Lease Agreement was contingent on DeWalt securing a CUP within 90 days of
the Lease Agreement’s execution. (Id.)
The City Code
Creekside Plaza is zoned as a Planned Community Development District
(“PCDD”). (Id. Ex. 18.) Only certain “Uses” are allowed in PCDDs, including certain
“Conditional Uses” that require a CUP. See Brooklyn Park Zoning Code (“Zoning
Code”) §§ 152.415(C), 152.035. The purpose of a CUP “is to allow the City discretion in
permitting certain uses in particular zoning districts that may be compatible with uses in
the district or perceived public needs under certain circumstances.” Id. § 152.035(A).
When deciding whether to grant a CUP application, the City may take into account
compliance with the City’s Comprehensive Plan, traffic volumes, and parking and city
services demands. Id. § 152.035(D). According to the City’s Comprehensive Plan,
Creekside Plaza is designated as a General Neighborhood Commercial land use.
(Sherman Aff. Ex. 8 at 8.) A General Neighborhood Commercial land use includes
“[r]etail, office, and personal service establishments that are oriented to residents of the
immediate neighborhood.” (Id. Ex. 8 at 5.)
A Class II Restaurant is a “Conditional Use” that requires a CUP. Zoning Code
§ 152.342.01. The Zoning Code defines a Class II Restaurant as an establishment that
“serves food and is eligible for an intoxicating liquor license without a cover charge.” Id.
§ 152.008. To be eligible for an intoxicating liquor license in the City, “[a]t the time of
the initial license application . . . for a restaurant, the applicant must provide written
documentation demonstrating that at least 25% of the restaurant’s gross receipts are
attributable to the sale of food.” Brooklyn Park City Code (“City Code”) § 112.048. The
City’s liquor license ordinance further defines “restaurant” as any establishment “having
appropriate facilities for the serving of meals . . . where meals are regularly furnished at
tables to the general public and which employs an adequate staff to provide the usual and
suitable service to its guests, and the principal part of the business of which is the serving
of foods.” Id. § 112.030. In addition, Minnesota’s liquor license statute defines a
restaurant as an establishment “where meals are regularly prepared on the premises.”
Minn. Stat. § 340A.101, subd. 25.
DeWalt’s CUP Application
On January 29, 2015, DeWalt participated in a pre-application meeting with
Larson and other City staff. DeWalt provided the City with Gossip’s business plan and
the parties discussed Gossip’s proposed menu.
(Larson Aff. ¶ 5.)
informed City staff that he expected 85% of Gossip’s clientele would be black, DeWalt
claims that “the look on their face was like huh-uh, no. And that’s when I knew that this
could be a problem.” (DeWalt Dep. at 150.) The next day, DeWalt formally applied for
a CUP to operate a Class II Restaurant on the Property. (Shepherd Aff. Ex. 11.)
At the City’s request, DeWalt provided the City with a sample menu and kitchenequipment list for Gossip.
(DeWalt Dep. at 64-65.)
The sample menu included
hamburgers, nachos, tacos, pulled pork sandwiches, fries, and salads, among other foods.
(Shepherd Aff. Ex. 19.) DeWalt also planned to have a catering company provide food.
(DeWalt Dep. at 99.) The equipment list included a “counter-top convention oven (food
warmer),” a hot dog broiler, nacho warmer, and a “soup kettle (cooker warmer),” among
other kitchen equipment. (Compl. (Docket No. 1) Ex. G.) The equipment list did not
include a traditional oven or dishwasher, and the sample menu notes “All foods
microwaved.” (DeWalt Dep. at 66; Shepherd Aff. Ex. 19.)
On February 13, 2015, the City sent DeWalt a letter acknowledging that it
received DeWalt’s CUP application and informing him that Gossip did not qualify as a
Class II Restaurant based on the City Code and DeWalt’s proposed menu and equipment
list. (Shepherd Aff. Ex. 13.) The City also informed DeWalt that a condition of approval
would be “investing in a kitchen suitable for preparing and cooking [DeWalt’s] desired
menu.” (Id.) DeWalt did not provide the City with a revised menu or equipment list, or
any written documentation that Gossip would generate 25% of its gross revenue from
food sales. (DeWalt Dep. at 64, 67, 95.)
As required by the CUP application process, DeWalt organized a neighborhood
meeting to discuss his application. (DeWalt Dep. at 72; DeWalt Aff. (Docket No. 37) Ex.
D.) The parties dispute whether City staff other than Todd Larson attended this meeting.
(Larson Aff. ¶ 6.) DeWalt claims that once the neighbors understood DeWalt’s proposal
for the Property, they became racially hostile. (DeWalt Dep. at 77, 79.) According to
DeWalt, neighbors stated, “you are not compatible,” and chanted, “take it back to Maple
Grove.” (Id. at 79.) One neighbor said that she would not be able to get up to go to work
if DeWalt’s clientele were in the neighborhood. (Id. at 80.) DeWalt also claims that one
of the leaders of the meeting was racially hostile because he stated, “If you are not going
to put in a fine food establishment, you are not welcome here.” (Id.) Other neighbors
chanted, “We don’t want no pat down.” (Id.) When DeWalt said that 85% of Gossip’s
clientele would be black, neighbors responded, “Well, what are they doing over here?”
and “Well, we don’t want it here.” (Id. at 81.) Larson attended the meeting and disputes
that the neighbors chanted or made any racially charged statements. (Larson Aff. ¶ 8.)
The City also received numerous letters from the public opposing DeWalt’s CUP
application. One letter is from the pastor at a neighboring church expressing his concerns
about extra cars spilling over into the church’s parking lot and Gossip’s hours of
operation during church youth activities and services. (Compl. Ex. H.) Other letters
expressed concern over Gossip’s close proximity to the adjacent neighborhood and the
likelihood of noise and public drunkenness if Gossip were to open. (Id.) None of the
letters discuss race. (Id.)
On April 8, 2015, the City’s Planning Commission held a public meeting on
DeWalt’s CUP application. Larson spoke first, explained DeWalt’s application, and
informed the Planning Commission that City staff recommended denying the application
because Gossip’s business plan did not qualify it as a Class II Restaurant and because
parking was inadequate. (Shepherd Aff. Ex. 7 at 3-4.) DeWalt’s attorney then addressed
the Planning Commission and insisted that Gossip would generate 25% of its gross
revenue from food sales, and that parking was sufficient because of Gossip’s hours of
operation compared to other tenants in Creekside Plaza. (Id. at 5-6.) DeWalt also spoke
and clarified that Gossip was not a “young hip-hop club,” but rather a “25-and-over
entertainment venue.” (Id. at 8.) DeWalt indicated that Gossip would bring jobs to the
African-American community and provide a “venue for African American people where
they can have a place where they can come, socialize, talk and be entertained, no hip-hop,
no young folks, all grownups.” (Id.)
Twenty-six members of the public then addressed the Planning Commission,
many of whom lived in the residential neighborhood directly next to Creekside Plaza.
(See generally Shepherd Aff. Exs. 7, 9.) The second person to speak lived directly
behind Creekside Plaza and stated:
When I bought the house, I didn’t buy a house to have my wife and kids
laying down trying to go to sleep. And when all them other restaurants and
stuff is closed and I’m sitting on my couch with my family and kids at nine
o’clock or ten o’clock at night, I don’t need to hear any music. I don’t need
to hear any argument, any loitering or anything else. So I’m opposed to it.
I’m all for African American, more jobs. I’m African American, might be
a shock. But I’m totally opposed to a nightclub and I’m literally directly
right—I look out my big bay window, that nightclub is right there. So I’m
opposed to it.
(Shepherd Aff. Ex. 7 at 12.) A former Minneapolis police sergeant also addressed the
Planning Commission and stated, “I have a problem with a statement that if Brooklyn
Park is not in favor of this, that we’re bigots and racists. I didn’t get the memo and I am
African American.” (Id. at 24.) The rest of the public comments focused on the potential
negative effects of Gossip near a neighborhood and churches, and the possibility of
increased traffic, noise, and crime. (See generally id.) Following public comment, the
Planning Commission voted to recommend denying DeWalt’s CUP application to the
City Council. (Shepherd Aff. Ex. 26 at 6.) The day after the Planning Commission
meeting, DeWalt terminated his lease with Creekside Realty Associates LLC. (Shepherd
Aff. Ex. 22.) DeWalt, however, maintains that if the City Council would have approved
his CUP application, the lease would have been in effect. (See Compl. Ex. I.)
On April 28, 2015, the City Council considered DeWalt’s CUP application.
During the City Council meeting, DeWalt indicated that “this location would never
work” and that he has been “harassed from day one” with “racist” letters. (Shepherd Aff.
Ex. 8 at 5.) DeWalt further stated that “we’re just going to go ahead and pursue our legal
rights and move on.” (Id. at 5-6.) DeWalt, however, did not formally withdraw his
application. (DeWalt Dep. at 162-63.)
The City Council adopted Resolution #2015-88, and denied DeWalt’s CUP
application. (Shepherd Aff. Ex. 18.) The Resolution made six conclusions: (1) Gossip
was not compatible with the nearby residential neighborhood; (2) Gossip was not
compatible with the City’s goal to create a positive image and ensure stable
neighborhoods; (3) Creekside Plaza’s parking was insufficient for Gossip’s parking
needs; (4) Gossip did not meet the purpose and criteria for a CUP set forth in the City’s
Zoning Code § 152.035; (5) Gossip was a nightclub and a nightclub does not meet the
“Neighborhood Service Center” criteria in the City’s Comprehensive Plan; and (6)
Gossip did not qualify for a liquor license under either state law or city ordinance because
Gossip did not meet the definition of a restaurant. (Id.)
On December 14, 2015, DeWalt, proceeding pro se, filed this lawsuit under 42
U.S.C. §§ 1981 and 1983 alleging that the City violated his First and Fourteenth
Amendment rights by discriminating against him on the basis of his race when it denied
his CUP application.
DeWalt eventually obtained counsel and filed an Amended
Complaint on April 25, 2016. Although not a model of clarity, DeWalt’s Amended
Complaint raises five claims. The first three are § 1983 claims for violations of the First
Amendment, and the Fourteenth Amendment’s Equal Protection Clause and Substantive
Due Process Clause. The fourth is a § 1981 claim for interference with a business
The fifth is a claim for violations of the Minnesota Human Rights Act.
Following the close of discovery, the City filed the instant Motion for Summary
Judgment and argues that DeWalt lacks standing and has not provided sufficient evidence
of discrimination in any event.
Article III of the United States Constitution confines federal courts to adjudicating
actual “cases” or “controversies.”
U.S. Const. art. III § 2, cl. 1.
To meet this
Constitutional requirement, a plaintiff must have standing. The question of standing “is
whether the litigant is entitled to have the court decide the merits of the dispute or of
particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To show Article III
standing “the plaintiff has the burden of proving: (1) that he or she suffered an ‘injury-infact,’ (2) a causal relationship between the injury and the challenged conduct, and (3) that
the injury likely will be redressed by a favorable decision.” Pucket v. Hot Springs Sch.
Dist. No. 23–2, 526 F.3d 1151, 1157 (8th Cir. 2008) (quotations and citation omitted).
The plaintiff must show that he “sustained or is immediately in danger of sustaining some
direct injury as the result of the challenged . . . conduct and [that] the injury or threat of
injury [is] both real and immediate.” City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983) (quotations and citation omitted).
The City argues that DeWalt did not suffer an injury in fact because he did not
have an interest in the Property at the time the City Council denied his CUP application.
(Def.’s Supp. Mem. (Docket No. 28) at 18.) Although it is true that DeWalt terminated
the lease agreement—and the lease agreement expired on its own terms—before the City
Council denied DeWalt’s CUP application, DeWalt provided evidence that the lease
agreement would have been in effect had the City Council approved his CUP application.
(Compl. Ex. I.) DeWalt has therefore met his burden of proving that he suffered an
injury in fact because the City’s decision to deny DeWalt’s CUP application, allegedly
because of DeWalt’s race and the race of Gossip’s anticipated clientele, prevented him
from opening Gossip. DeWalt has standing.
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 inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna
Bank, 92 F.3d 743, 747 (8th Cir. 1996). 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. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party opposing a properly
supported motion for summary judgment may not rest on mere allegations or denials, but
must set forth specific facts in the record showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
42 U.S.C. § 1983
Section 1983 provides a federal cause of action against anyone who, acting under
color of state law, “violates any ‘rights, privileges, or immunities secured by the
Constitution and laws’ of the United States.” Pediatric Specialty Care, Inc. v. Arkansas
Dep’t of Human Servs., 293 F.3d 472, 477 (8th Cir. 2002) (quoting 42 U.S.C. § 1983).
Section 1983 “is not itself a course of substantive rights, but merely provides a method
for vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271
(1994) (citation and quotations omitted).
Although it does not mention the words “equal protection,” the gravamen of
DeWalt’s Amended Complaint is the allegation that the City discriminated against him
on the basis of his race and the race of Gossip’s anticipated clientele in violation of the
Equal Protection Clause of the Fourteenth Amendment. To establish an equal protection
violation, DeWalt must provide evidence of a “racially discriminatory intent or purpose”
on the part of the City. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 265 (1977). “Discriminatory purpose can be proved with various kinds of
direct and circumstantial evidence but is most often proved with evidence that similarly
situated [individuals] were treated differently.” Lewis v. Jacks, 486 F.3d 1025, 1028 (8th
Cir. 2007). The sequence of events leading up to the City’s decision and any departures
from regular procedure may also indicate discriminatory intent. Arlington Heights, 429
U.S. at 267-68.
DeWalt concedes that he has not provided any direct evidence that the City
discriminated against him on the basis of race. (Pls’ Opp’n Mem. (Docket No. 34) at 21,
29.) And the only circumstantial evidence of discrimination is DeWalt’s testimony that
City staff members gave him a bad look when he told them that 85% of Gossip’s clientele
would be black. But even assuming its truth, this lone allegation is insufficient to prove
that the City acted with any racially discriminatory intent or purpose when it denied
DeWalt’s CUP application.
Almost all of DeWalt’s allegations of racial bias are made against neighbors or
members of the general public, not the City. But these allegations fail to establish an
equal protection violation for two reasons. First, DeWalt’s allegation that neighbors at
the Planning Commission meeting “used exaggerated speech to spew hostile, racially
charged rhetoric” is simply false. (Pls.’ Opp’n Mem. at 7.) The people who spoke at the
Planning Commission meeting expressed their concern about an entertainment venue that
served alcohol and was open until 2 a.m. being located next to a residential neighborhood
and two churches. These concerns included noise, loitering, increased traffic, and extra
garbage. (See generally Shepherd Aff. Ex. 7.) The only time people mentioned race was
to respond to DeWalt’s initial comments. (See, e.g., id. at 18.)
Second, even assuming that neighbors made racially charged remarks at the initial
neighborhood meeting and sent DeWalt racist letters, (see DeWalt Aff. ¶ 14), DeWalt
does not provide any evidence that the City adopted the neighbors’ racial animus.
Instead, DeWalt makes two unsubstantiated allegations that the City’s website displayed
a link to a neighbor’s website that contained a “countdown” to the Planning Commission
meeting, and that one additional City Council member attended the neighborhood
meeting. (DeWalt Aff. ¶¶ 11, 16.) But absent any evidence that the City council member
adopted, relayed, or endorsed the alleged racial bias to the rest of the City Council, or any
evidence that the neighbors’ website included any racial animosity, these allegations do
not provide evidence that the City adopted any neighbors’ racial bias, and are insufficient
to withstand summary judgment. See Contreras v. City of Chicago, 119 F.3d 1286, 1294
(7th Cir. 1997) (affirming summary judgment because plaintiff failed to provide evidence
that government officials adopted their constituents’ racial animosity).
DeWalt also fails to provide any evidence that the City treated him differently than
other similarly situated individuals. The only record evidence of how the City treated
other CUP applicants is the City’s answer to Interrogatory No. 11, in which it lists twelve
previous CUP applicants, the type of facility they sought to open, the address of the
facility, and whether the City granted or denied the application. (Shepherd Aff. Ex. 6 at
4.) Although DeWalt relies on this evidence to claim that in the past 10 years the City
has granted every non-black person’s CUP application, while it has denied every black
person’s application (DeWalt Aff. ¶ 21), the City’s answer does not list the applicants’
race and the City does not request or keep track of a CUP applicant’s race. (Shepherd
Aff. Ex. 6 at 4, 6.) DeWalt also previously admitted in his deposition that he does not
know the race of the previous CUP applicants besides one black applicant named Eugene
Roques. (DeWalt Dep. at 207.) Curiously, DeWalt concedes that he was not similarly
situated to Mr. Roques. (Id. at 145.) But even assuming Mr. Roques and DeWalt are
similarly situated, the City denied Mr. Roques’s CUP application for the same non-race
related reasons they denied DeWalt’s CUP application: an entertainment venue that
serves alcohol and is open until 2 a.m. is not compatible with a nearby residential
neighborhood. (See Shepherd Aff. Ex. 24 at 2-3.) Moreover, contrary to DeWalt’s
claim, the City has approved a black person’s CUP application and has denied a non13
black person’s CUP application. (Sherman Aff. ¶¶ 6, 9.) Based on this record, there is
no evidence that the City treated DeWalt differently than other similarly situated CUP
Nor is there any evidence that the City departed from its regular procedures when
it denied DeWalt’s CUP application. To the contrary, the sequence of events leading up
to the City’s decision shows that the City did not deny DeWalt’s application because of
any discriminatory intent. From the beginning, Larson informed DeWalt that the City
required him to obtain a CUP to operate Gossip on the Property. DeWalt does not
dispute that, as part of the CUP application process, the City requires the applicant to
attend a pre-application meeting, initial neighborhood meeting, Planning Commission
meeting, and City Council meeting. After the pre-application meeting, the City informed
DeWalt that he would need to invest in more kitchen equipment if he wanted his CUP
application to be granted. DeWalt, however, did not provide the City with any updated
information. (DeWalt Dep. at 64, 67, 95.) After the rest of the required meetings, the
City denied DeWalt’s CUP application and provided detailed, non-race related reasons
for the denial. (Shepherd Aff. Ex. 18.)
DeWalt argues that some of the City’s reasons for denying his CUP application
are pretextual. First, DeWalt argues that Gossip did qualify as a Class II Restaurant
under the City Code because 25% of Gossip’s gross revenue would have come from food
and food would have been regularly prepared on Gossip’s premises. (DeWalt Aff. ¶ 24.)
But when the City asked DeWalt to show how he would meet these requirements,
DeWalt failed to respond. The City’s decision to deny DeWalt’s application for this
reason was therefore not pretextual.
Second, DeWalt claims that Creekside Plaza
contained sufficient parking for Gossip. Besides DeWalt’s claim, however, the record is
completely devoid of any evidence, such as the Property’s square footage, that could help
the Court determine whether parking was sufficient and the City’s reason was pretextual.
Finally, DeWalt argues that Gossip was compatible with the nearby neighborhood
because the City’s black population exceeds 35% and DeWalt intended to keep Gossip
safe, clean, and quiet. DeWalt further argues that the City’s use of the term “compatible”
is a euphemism for racial discrimination and conceals the City’s view that black people
are noisy, messy, disruptive, and violent. But DeWalt ignores the fact that compatibility
is a required metric when evaluating a CUP application under the City’s Comprehensive
Plan. See Zoning Code § 152.035(A). And contrary to DeWalt’s claims, the City’s
concerns about Gossip’s compatibility with the neighborhood have nothing to do with
race. The City was rightfully concerned with potential problems that an establishment
like Gossip—that serves alcohol, hosts live entertainment, and is open during church
activities and until 2 a.m. on school nights—brings to a community, regardless of the race
of the establishment’s anticipated clientele.
Absent any evidence of pretext, discriminatory treatment, or discriminatory intent,
DeWalt’s equal protection claim fails.
Substantive Due Process
In the zoning context, a plaintiff asserting a substantive due process claim must
establish that the zoning authority’s decision was “truly irrational.” Koscielski v. City of
Minneapolis, 435 F.3d 898, 902 (8th Cir. 2006) (citation omitted).
discussed, the City did not deny DeWalt’s CUP application because of his race or the
race of Gossip’s anticipated clientele. Rather, the City denied DeWalt’s CUP application
because Gossip, an entertainment venue that would have served alcohol and been open
until 2 a.m., was not compatible with a nearby residential neighborhood. That decision
was a quintessential example of rational decision-making. DeWalt’s substantive due
process claim fails.
DeWalt alleges that the City violated his “right to free speech and expression
guaranteed by the First Amendment: included is the right to artistic expression through
music and offer musical events without restrictions based on content and/or viewpoint.”
(Am. Compl. ¶ 28.b.) He further alleges that he has “a protected right to freely associate
as guaranteed by the First Amendment which includes the right to associate with others
regardless of race.”
(Id. ¶ 28.c.)
These bare-bones allegations are left largely
undeveloped in DeWalt’s opposition memorandum.
In fact, DeWalt’s opposition
memorandum includes only one paragraph on his First Amendment claim, and that
paragraph abruptly ends mid-sentence.
(Pls.’ Opp’n Mem. at 23-24.)
DeWalt has abandoned this claim. But even if he has not, DeWalt’s First Amendment
The First Amendment does not explicitly protect a general right of association, but
the Supreme Court has recognized that it “embraces such a right in certain
circumstances.” City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989). These circumstances
include a person’s right to “enter into and maintain certain intimate human relationships”
and a person’s right to engage “in those activities protected by the First Amendment—
speech, assembly, petition for the redress of grievances, and the exercise of religion.”
Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). The Supreme Court has
previously held that activity of “dance-hall patrons—coming together to engage in
recreational dancing—is not protected by the First Amendment.
Thus this activity
qualifies neither as a form of ‘intimate association’ nor as a form of ‘expressive
association.’” Stanglin, 490 U.S. at 25. Simply put, the Constitution does not recognize
a generalized right of “social association.” Id.
Like the dance-hall patrons in Stanglin, DeWalt does not enjoy a First Amendment
right to socially associate and listen to music at Gossip. Although DeWalt now claims
that Gossip was intended to be a place where the black community could gather and
discuss social issues like voter registration (DeWalt Aff. ¶ 3), the record belies this
desperate attempt to save his meritless claim.
(See, e.g., Shepherd Aff. Ex. 12.)
DeWalt’s First Amendment claim fails.
42 U.S.C. § 1981
Section 1981 protects the right of all individuals to “make and enforce contracts”
without respect to race. 42 U.S.C. § 1981(a). “[T]he term ‘make and enforce contracts’
includes the making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual
relationship.” Id. § 1981(b). The parties agree that the Court should examine this claim
under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
Under this framework, DeWalt must first establish a prima facie case.
Specifically, he must present evidence that he was in a protected class, that the City
intended to discriminate against him on the basis of race, and the discrimination
interfered with the enforcement of the contract. See Harris v. Hays, 452 F.3d 714, 718
(8th Cir. 2006). Again, DeWalt has failed to present any evidence that the City intended
to discriminate against him on the basis of race. His § 1981 claim therefore fails.
The Minnesota Human Rights Act
DeWalt brings three claims under the Minnesota Human Rights Act alleging that
the City racially discriminated against him in various ways. See Minn. Stat. §§ 363A.12,
363A.15(2), and 363A.17. Because the City did not discriminate against DeWalt on the
basis of his race, these claims fail.
DeWalt has failed to provide sufficient evidence that the City discriminated
against him on the basis of his race or the race of Gossip’s anticipated clientele.
Accordingly, IT IS HEREBY ORDERED that:
The City’s Motion for Summary Judgment (Docket No. 26) is
DeWalt’s Amended Complaint (Docket No. 7) is DISMISSED with
LET JUDGMENT BE ENTERED ACCORDINGLY
Dated: May 17, 2017
s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge
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