CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

BROOK BERNINI, MATTHEW

)

BYRNES, SIMON CECIL, ANDREW )

COHEN, DAVID DREW JR, KELLAN )

DUBBELS, KRISTOFER DUBBELS, )

ALANA MICHELLE EXUM, BOBBY )

REESE HAGY JR, ADAM HAYDEN, ADRYN HAYES, KEVIN HUNDT,

) ) )

RACHEL JACKSON, TIANA

)

JOHNSON, GARTH KAHL, JARED

)

LANCTOT, MICHAEL LARSON,

)

VAIN MAINSTREAM, DAVID

)

MORSE, CRAIG NEEF, MARY OGLE, )

TIM PHILLIPS, RAPHI RECHITSKY, )

LAMBERT ROCHFORT, NICK

)

SEGNER, RYAN SOLEM, ZACH

)

SWIFT, ANDREW TEMPERANTE,

)

MICHAEL WARD, II, RACHEL

)

WESTLUND, NELSON WHITMORE, and BRUCE WILKINSON

) ) )

On behalf of themselves and all others similarly situated,

) ) )

) Plaintiffs,

v.

CITY OF ST. PAUL, STEVEN FRAZER, BILL SNYDER, JOE NEUBERGER, AXEL HENRY, PATRICIA ENGLUND, and MATTHEW CLARK, In their individual capacity,

Defendants.

SECOND AMENDED COMPLAINT
CIVIL ACTION NO. 09-2312 PAM/JJG
CLASS ACTION
INJUNCTIVE RELIEF SOUGHT
JURY TRIAL DEMANDED

SECOND AMENDED COMPLAINT Plaintiffs, on behalf of themselves and all others similarly situated, bring this class action against the City of St. Paul (“City”), Steven Frazer, Bill Snyder, Joe Neuberger, Axel

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 2 of 24
Henry, Patricia Englund, and Matthew Clark under 42 U.S.C. § 1983 for violating their rights under the First and Fourth Amendments to the United States Constitution. In support of their claims for damages and equitable relief, plaintiffs allege:
BACKGROUND AND POLICY 1. In September 2008, the City hosted the Republican National Convention (“RNC”). In the lead-up to the RNC, the City developed a plan to limit the amount and type of protesting in downtown St. Paul, where the RNC was taking place, to ensure that the RNC would receive a warm reception, free of political protesters. The City developed this plan under the auspices of a National Special Security Event (“NSSE”) designation that had been granted by the federal government. Pursuant to the NSSE designation, the City was the lead local agency, with the City’s Police Department responsible for the design and implementation of a security plan. 2. The City’s Police Department designed a security plan based on a policy of isolation and containment of actual and potential protesters who appeared in the City’s downtown area. Under this policy, the Police Department was authorized to arrest actual and potential protesters without probable cause to prevent them from engaging in political expression in the downtown area. The City’s policy also authorized law enforcement to use force to intimidate actual and potential protesters into refraining from engaging in political expression in the downtown area. The City had a Mobile Field Force of law enforcement officers (“MFF”) to carry out its policy of isolation and containment. In addition, the City’s Police Department designated commanders to direct the enforcement actions of the MFF. 3. Pursuant to the City’s policy, on the afternoon of September 1, 2008, Police Department commanders directed law enforcement officers to round up persons perceived to be political protesters in downtown St. Paul. Hundreds of law enforcement officers trapped
2

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 3 of 24
upwards of 200 private citizens on Shepard Road, on the south side of downtown. The persons trapped on Shepard Road were engaged in a broad array of pursuits, all of which were legal. Some were trying to get to or listen to a concert on Harriet Island, others were socializing with friends, others were protesting the RNC, others were acting as legal observers, others were acting as members of the media, and yet others were present to provide medical attention to injured protesters.
4. Despite the lawful pursuits of the private citizens trapped on Shepard Road, City commanders directed the deployment of chemical irritants and non-lethal ammunition against them for the purpose of intimidating them and herding them into a park on the south side of Shepard Road near the intersection with Chestnut St. (“Park”). Once police officers had surrounded upwards of 200 persons in the Park, law enforcement officials announced that everyone in the Park was under arrest. No person in the Park was allowed to leave once the Park was surrounded, and the law enforcement officials at no time gave a dispersal order to the persons in the Park.
5. After placing everyone in the Park under arrest, law enforcement officers went through the Park handcuffing those present who appeared to the officers to be protesters. The persons handcuffed were then transported to jail or holding cells, where they were detained for up to 72 hours.
6. All of the plaintiffs in this case were subjected to the mass arrest in the Park and many of them were injured by the officers’ use of chemical irritants. They now bring this case on behalf of themselves and all others who were arrested en masse in the Park to obtain redress for violations of their First Amendment right to free speech and their Fourth Amendment rights to be free from arrest without probable cause and the use of excessive force.
3

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 4 of 24
PARTIES 7. Plaintiff Brook Bernini is a resident of Minneapolis, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained and arrested Ms. Bernini without probable cause and on account of her perceived political expression in violation of her rights under the First and Fourth Amendments to the United States Constitution. 8. Plaintiff Matthew Byrnes is a resident of Minneapolis, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained and arrested Mr. Byrnes without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. 9. Plaintiff Simon Cecil is a resident of Fort Collins, Colorado. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Cecil without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Cecil without justification in violation of his rights under the Fourth Amendment to the United States Constitution. 10. Plaintiff Andrew Cohen is a resident of Woodland Hills, California. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Cohen without probable cause and on account of his perceived political expression in violation of his rights
4

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 5 of 24
under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants and non-lethal ammunition against Mr. Cohen without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
11. Plaintiff David Drew, Jr. is a resident of Vancouver, Washington. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Drew without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Drew without justification in violation of the Fourth Amendment to the United States Constitution.
12. Plaintiff Kellan Dubbels is a resident of Fergus Falls, Minnesota and was a minor on September 1, 2008. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Dubbels without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Dubbels without justification in violation of the Fourth Amendment to the United States Constitution.
13. Plaintiff Kristofer Dubbels is a resident of Duluth, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Dubbels without probable cause and on
5

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 6 of 24
account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
14. Plaintiff Alana Michelle Exum is a resident of Galesburg, Illinois and a transgender male. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Exum without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Exum and hit him with a baton without justification in violation of the Fourth Amendment to the United States Constitution.
15. Plaintiff Bobby Reese Hagy, Jr. is a resident of Minneapolis, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Hagy without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
16. Plaintiff Adam Hayden is a resident of Minneapolis, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Hayden without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Hayden without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
6

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 7 of 24
17. Plaintiff Adryn Hayes is a resident of Portland, Oregon and a transgender male. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Hayes without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Hayes without justification in violation of the Fourth Amendment to the United States Constitution.
18. Plaintiff Kevin Hundt is a resident of LaCrosse, Wisconsin. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained and arrested Mr. Hundt without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
19. Plaintiff Rachel Jackson is a resident of Portland, Oregon. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Ms. Jackson without probable cause and on account of her perceived political expression in violation of her rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Ms. Jackson without justification in violation of the Fourth Amendment to the United States Constitution.
20. Plaintiff Tiana Johnson is a resident of Lakeland, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies
7

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 8 of 24
enacted by the City detained, arrested, and jailed Ms. Johnson without probable cause and on account of her perceived political expression in violation of her rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Ms. Johnson without justification in violation of the Fourth Amendment to the United States Constitution.
21. Plaintiff Garth Kahl is a resident of Alsea, Oregon. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Kahl without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Kahl without justification in violation of the Fourth Amendment to the United States Constitution.
22. Plaintiff Vain Mainstream is a resident of St. Paul, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Mainstream without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
23. Plaintiff David Morse is a resident of Oakland, California. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained and arrested Mr. Morse without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth
8

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 9 of 24
Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Morse without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
24. Plaintiff Jared Lanctot is a resident of Providence, Rhode Island. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Lanctot without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
25. Plaintiff Michael Larson, II is a resident of Duluth, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Larson without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
26. Plaintiff Craig Neef is a resident of Chicago, Illinois. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Neef without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Neef without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
9

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 10 of 24
27. Plaintiff Mary Ogle is a resident of Muncie, Indiana. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained and arrested Ms. Ogle without probable cause and on account of her perceived political expression in violation of her rights under the First and Fourth Amendments to the United States Constitution.
28. Plaintiff Tim Phillips is a resident of San Francisco, California. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained and arrested Mr. Phillips without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
29. Plaintiff Raphi Rechitsky is a resident of Minneapolis, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained and arrested Mr. Rechitsky without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
30. Plaintiff Lambert Rochfort is a resident of Seattle, Washington. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Rochfort without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Rochfort without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
10

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 11 of 24
31. Plaintiff Nicholas Segner is a resident of Ashland, Wisconsin. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Segner without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Segner without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
32. Plaintiff Ryan Solem is a resident of Minneapolis, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Solem without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Solem without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
33. Plaintiff Zach Swift is a resident of Guilderland, New York. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Swift without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
34. Plaintiff Andrew Temperante is a resident of Woodbury, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and
11

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 12 of 24
pursuant to policies enacted by the City detained, arrested, and jailed Mr. Temperante without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Temperante without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
35. Plaintiff Michael Ward, II is a resident of Berrysburg, Pennsylvania. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Ward without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution.
36. Plaintiff Rachel Westlund is a resident of Molalla, Oregon and a transgender male. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Westlund without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Westlund and excessively tightened his handcuffs without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
37. Plaintiff Nelson Whitmore is a resident of White Bear Lake, Minnesota. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Whitmore without
12

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 13 of 24
probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Whitmore without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
38. Plaintiff Bruce Wilkinson is a resident of Olympia, Washington. On September 1, 2008, police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City detained, arrested, and jailed Mr. Wilkinson without probable cause and on account of his perceived political expression in violation of his rights under the First and Fourth Amendments to the United States Constitution. Police officers under the direction of the City’s Police Department and pursuant to policies enacted by the City also used chemical irritants against Mr. Wilkinson without justification in violation of his rights under the Fourth Amendment to the United States Constitution.
39. Defendant City is a municipality formed under the laws of the state of Minnesota. 40. Defendant Steven Frazer was at all times material to this second amended complaint a law enforcement officer employed by the City. On September 1, 2008, Mr. Frazer, acting under color of law and pursuant to the policies of the City, ordered the mass arrest without probable cause and on account of perceived political expression of upwards of 200 persons in the Park and authorized and directed the use of excessive force against plaintiffs and the class members. 41. Defendant Bill Snyder was at all times material to this second amended complaint a law enforcement officer employed by Ramsey County. On September 1, 2008, Mr. Snyder, acting under color of law and pursuant to the policies of the City, ordered the mass arrest without
13

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 14 of 24
probable cause and on account of perceived political expression of upwards of 200 persons in the Park.
42. Defendant Joe Neuberger was at all times material to this second amended complaint a law enforcement officer employed by the City. On September 1, 2008, Mr. Neuberger, acting under color of law and pursuant to the policies of the City, ordered the mass arrest without probable cause and on account of perceived political expression of upwards of 200 persons in the Park and authorized and directed the use of excessive force against plaintiffs and the class members.
43. Defendant Axel Henry was at all times material to this second amended complaint a law enforcement officer employed by the City. On September 1, 2008, Mr. Henry, acting under color of law and pursuant to the policies of the City, authorized and directed the use of excessive force against plaintiffs and the class members.
44. Defendant Patricia Englund was at all times material to this second amended complaint a law enforcement officer employed by the City. On September 1, 2008, Ms. Englund, acting under color of law and pursuant to the policies of the City, assisted in ordering the mass arrest without probable cause and on account of perceived political expression of upwards of 200 persons in the Park.
45. Defendant Matthew Clark was at all times material to this second amended complaint a law enforcement officer employed by the City of Minneapolis. On September 1, 2008, Mr. Clark, acting under color of law and pursuant to the policies of the City, assisted in carrying out the mass arrest without probable cause and on account of perceived political expression of upwards of 200 persons in the Park, and used excessive force against plaintiffs and/or the class members.
14

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 15 of 24
JURISDICTION AND VENUE 46. This Court has original jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343 because plaintiffs assert claims for violations of 42 U.S.C. § 1983. 47. Venue is proper in this judicial district under 28 U.S.C. § 1391(b) because the events or omissions giving rise to plaintiffs’ claims occurred in this judicial district.
CONDUCT GIVING RISE TO VIOLATIONS OF LAW 48. On the afternoon of September 1, 2008, hundreds of members of the public were present on the sidewalks and park land along Shepard Road in St. Paul. Shepard Road is a scenic route that borders the Mississippi River and on its south side has pedestrian and bike paths and park areas for use by the public. At the time, a concert was taking place on Harriet Island, an island in the Mississippi, and persons were listening to the concert from the Shepard Road park area. 49. Late in the afternoon, a group of 15-25 persons walked eastbound on the pedestrian path along Shepard Road. Some of the persons carried a banner of political protest, others were trying to find a bridge to cross over to Harriet Island for the concert. When the small group approached the Robert Street bridge, they encountered scores of police officers in riot gear and some on horseback blocking their passage. When members of the group inquired about whether they could continue eastbound on Shepard Road, they received no response from the police officers. 50. Without giving any type of order, the police officers blocking Shepard Road began marching westbound in a line towards the group. As they moved westbound, the police officers caused the initial group of 15-25 persons, as well as many other persons walking on the pedestrian path along Shepard Road, to turn around and start walking westbound.
15

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 16 of 24
51. As the line of police officers moved westbound, all private citizens on Shepard Road had to move westbound as well. The officers in the line still did not give any type of order, for dispersal or otherwise, and the public was compliant with the movement of the line.
52. Without warning or provocation from the private citizens, the officers began shooting chemical irritant canisters, plastic bullets, and concussion grenades at the private citizens on Shepard Road. When the officers opened fire, there were approximately 50-100 private citizens moving peacefully westbound on the sidewalks next to Shepard Road. The chemical irritant canisters created a cloud of gas around the private citizens that caused them to panic and run westbound for safety. The above-identified plaintiffs were subjected to this use of force.
53. After the canisters were fired, some of the officers approached private citizens individually and sprayed them with hand-held containers of mace or pepper spray. The persons sprayed were not disobeying police orders and were moving westbound along side Shepard Road in response to the movement of the police line. The above-identified plaintiffs were subjected to this use of force.
54. Defendants Frazer, Neuberger, Clark, and Henry authorized, directed, and/or carried out the use of force described hereinabove.
55. The police officers moved westbound along Shepard Road for the purpose of corralling all members of the public in the Park. To accomplish this, the City also had a line of police officers stationed on the west side of the Park. The line of officers on the west side of the Park was not letting any persons leave the Park.
16

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 17 of 24
56. After several minutes, the line of police officers moving westbound arrived at the east edge of the Park. Both lines of police officers then encircled the Park and continued to refuse to let anyone leave the Park.
57. There were more than 200 persons detained in the Park. Some of them were in downtown St. Paul to go to a concert on Harriet Island, others to socialize with friends, others to protest the RNC, others to act as legal observers, others to report for the media, and yet others to act as medics for injured protesters.
58. The 200-plus private citizens waited peacefully in the Park while surrounded by the police officers. When persons tried to leave the Park, the police officers refused to let them leave. The officers gave no dispersal orders.
59. After approximately fifteen minutes, one of the police officers announced by megaphone that all of the persons in the Park were under arrest. The police officer made this announcement in a manner intended to be heard and obeyed by all persons in the Park. The officer lacked probable cause to order the arrest of everyone in the Park.
60. Defendants Frazer, Neuberger, Clark, and Snyder directed that the arrest order be given and orchestrated the movement of the law enforcement officers to corral and detain the private citizens.
61. At the direction of defendants Frazer, Neuberger, Englund, Snyder, Clark, and other officers acting in a supervisory capacity on behalf of the City’s Police Department, over the course of the next one to two hours, police officers handcuffed some of the persons while allowing others to leave the Park without citation. The police officers decided whom to handcuff and whom to let go based on their opinion concerning whether the person had been protesting the RNC. Alleged protesters were detained, while the others were released.
17

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 18 of 24
62. Police officers corralled and subjected to mass arrest all persons in the Park pursuant to the City’s isolation and containment policy adopted prior to the commencement of the RNC. Defendants Neuberger and Frazer, acting under color of state law, designed, ratified, approved, implemented, and applied the City’s isolation and containment policy. Pursuant to that policy, the individual defendants authorized and directed the mass arrest without probable cause and based on perceived political expression of the persons on Shepard Road, including plaintiffs and the class members, and the use of excessive force against plaintiffs and the class members. All of the plaintiffs were arrested in this mass arrest.
63. The police officers transported to the Ramsey County jail or to make-shift holding pens the private citizens whom they had handcuffed in the park. The persons were detained at the jail for up to 72 hours or at the holding pens for several hours.
MALICE 64. The conduct of defendants described hereinabove was at all times undertaken maliciously, wantonly, willfully, knowingly, and in intentional or reckless disregard of plaintiffs’ legal rights.
INJURY AND DAMAGE TO PLAINTIFFS 65. By reason of defendants' unlawful conduct described hereinabove, plaintiffs have sustained loss and damage, including, but not limited to, the following:
a. They have suffered physical pain and injury; b. They have suffered emotional distress and humiliation; c. They have suffered mental anguish; and d. They have lost wages.
18

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 19 of 24
The precise amount of plaintiffs’ damages is at present undetermined, but their damages are believed to be in excess of $50,000. The precise amount will be proved to and found by the trier of fact in this action.
CLASS ALLEGATIONS 66. Plaintiffs bring this class action under Federal Rule of Civil Procedure 23(a), (b)(1), (b)(2) and (b)(3), on behalf of the following ascertainable class and sub-class: Class: All persons subjected to the mass arrest in the Park on September 1, 2008; Sub-class: All persons subjected to the use of chemical irritants and concussion
grenades while being herded toward the Park on September 1, 2008. 67. Plaintiffs’ claims for constitutional violations warrant the creation of the Class and Sub-class because they satisfy the threshold requirements of Fed. R. Civ. P. 23(a) and the additional requirements of Fed. R. Civ. P. 23(b)(1),(2), and (3). 68. Numerosity. The actual number of class members is unknown at this time, but plaintiffs estimate that the class consists of over 200 persons. It is impracticable to bring all of them before the Court through joinder. 69. Commonality. Questions of law and fact are common to the class. Defendants arrested all persons in the Park pursuant to a single uniform command given by megaphone without regard to the actions of any individual. In addition, defendants deployed chemical irritants and concussion grenades in a manner calculated to affect all persons present before them. This case presents the common legal questions of whether probable cause existed to justify the mass arrest at the Park and whether the use of force against the group on Shepard Road was justified.
19

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 20 of 24
70. Typicality. The claims of the individual plaintiff class representatives are typical of those of the class. Each class representative was arrested pursuant to the mass arrest in the Park, and some of the class representatives were subjected to the deployment of chemical irritant canisters and concussion grenades on Shepard Road. All of the plaintiffs challenge their arrests on the grounds that they were arrested without probable cause in violation of the Fourth Amendment and on account of their perceived political expression in violation of the First Amendment. For those plaintiffs subjected to the use of chemical irritants or concussion grenades, they challenge their use as a violation of the Fourth Amendment prohibition against the use of excessive force by law enforcement officers. The interests of the plaintiffs are therefore aligned with those of the class.
71. Adequacy of representation. Plaintiffs will fairly and adequately represent and protect the interests of the class. They are broadly representative of the persons whom defendants arrested and used force against and are committed to achieving appropriate relief for the entire class. Moreover, they have retained counsel with extensive and successful experience representing plaintiffs in civil rights litigation. Plaintiffs, through their counsel, have the financial resources to prosecute this case vigorously on behalf of the entire class.
72. Danger of Inconsistent Adjudications. The prosecution of separate actions by individual class members would create a risk of inconsistent and varying adjudications concerning the subject of this action. Such adjudications could establish incompatible standards of conduct for defendants under the laws alleged herein. Class certification under Fed. R. Civ. P. 23(b)(1)(A) is thus appropriate.
73. Injunctive relief. Class certification is appropriate under Fed. R. Civ. P. 23(b)(2) because defendants have acted on grounds that apply generally to the class and in a manner that justifies injunctive relief for the class as a whole. Plaintiffs and the class ask the Court to order
20

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 21 of 24
the City to cease and desist in its unconstitutional policies and practices concerning the repression of political expression and to order the City to institute policies and procedures to ensure that mass arrests and the use of force are no longer used to repress expression protected by the First Amendment.
74. Predominance of common claims. Class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because the common issues raised by plaintiffs' claims predominate over purely individual issues. A class action is the best means of addressing the issues raised by the claims. Inasmuch as all members of the class allege that they were subjected to the same mass arrest at the Park and the sub-class members allege that they were subjected to excessive force through the deployment of chemical irritant canisters and concussion grenades, requiring each class member to pursue his or her claim individually would entail needless duplication and would waste the resources of both the parties and the Court. Moreover, few individuals would file lawsuits if the class action did not proceed because they could not afford to pursue individual litigation, and the monetary relief to be achieved is relatively small per capita.
VIOLATIONS OF 42 U.S.C. § 1983 75. Plaintiffs repeat and reallege the allegations contained in the foregoing paragraphs of this second amended complaint as if fully set forth herein. 76. Acting under color of law, the individual defendants violated plaintiffs’ and the class members’ Fourth Amendment rights to be free from arrest without probable cause and the use of excessive force when they authorized and directed their detainment and arrest at the Park, their jailing, and the deployment of chemical irritants and concussion grenades against them, all in violation of 42 U.S.C. § 1983.
21

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 22 of 24
77. Acting under color of law, the individual defendants violated plaintiffs’ and the class members’ First Amendment right to free speech when they authorized and directed their detainment and arrest at the Park, their jailing, and the deployment of chemical irritants and concussion grenades against them on account of their perceived political expression, all in violation of 42 U.S.C. § 1983.
78. The City, with deliberate indifference to the rights of citizens, designed, initiated, promoted, ratified, and implemented a policy of isolation and containment of actual and potential protesters during the RNC. This policy authorized and directed police personnel under the City’s control, including the individual defendants, to arrest actual and potential protesters if they appeared downtown in the City during the RNC and to use force to intimidate protesters and quash political expression. This policy authorized arrests without probable cause, arrests based on perceived political expression, and the use of excessive force, all in violation of 42 U.S.C. § 1983, and resulted in the arrests of and use of force against plaintiffs and the class members.
79. As a direct and proximate result of the aforementioned acts and omissions of defendants, plaintiffs and the class members are entitled to recover such actual damages as they show themselves to have sustained and the trier of fact shall find, and such other and further relief as may be available under law.
PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for relief against defendants as follows:
A. Awarding plaintiffs and the class actual damages as they shall proved to have sustained and the trier of fact shall find;
B. Awarding plaintiffs and the class punitive damages;
22

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 23 of 24

C. Awarding plaintiffs and the class interest on any damages for which judgment shall be entered;
D. Awarding plaintiffs and the class their costs and disbursements incurred, including reasonable attorneys’ fees;
E. Granting plaintiffs and the class equitable relief permanently enjoining defendants from engaging in such unlawful conduct in the future and requiring defendants to take affirmative steps to ensure that the City’s policies are amended to come into compliance with the United States Constitution;
F. That the Court retain jurisdiction until such time as the Court is satisfied that defendants have remedied the practices complained of herein and are determined to be in full compliance with the law; and
G. Granting to plaintiffs and the class such other and further relief as is just, appropriate, and available under law.

JURY DEMAND

Plaintiffs hereby demand trial by jury of all issues properly triable thereby.

Dated: January 26, 2010

ROBERT J. KOLSTAD, LAWYER

s/Robert J. Kolstad___________________ Robert J. Kolstad (#258994) 1005 W. Franklin Avenue, Suite 3 Minneapolis, Minnesota 55405 Telephone: 612-721-3425
R. Travis Snider (#270842) Snider Law Firm, Ltd. 1005 W. Franklin Avenue, Suite 3 Minneapolis, MN 55405 Telephone: 612-872-1200

23

CASE 0:09-cv-02312-PAM-JJG Document 25 Filed 02/11/10 Page 24 of 24 David L. Shulman (#260721) Law Office of David L. Shulman PLLC 1005 W. Franklin Ave., Suite 3 Minneapolis, MN 55405 Telephone: 612-870-7410
24

 
 CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 1 of 36

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

BROOK BERNINI, et. al.,

CASE FILE 09 CV 2312 PAM/JJG

Plaintiffs,

vs.

CITY OF ST. PAUL, STEVEN FRAZER, BILL SNYDER, JOE NEUBERGER, AXEL HENRY, PATRICIA ENGLUND AND MATTHEW CLARK, in their individual capacity,

Defendants.

DEFENDANTS' MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This case stems from a chaotic attack on officers in St. Paul, Minnesota on

September 1, 2008 during the Republican National Convention which led to multiple

arrests. Plaintiffs allege officers arrested them without probable cause, used excessive

force and violated their First Amendment Rights. Plaintiffs also allege the City of St.

Paul had an unconstitutional policy. Defendants are entitled to qualified immunity and

there is no basis for a claim against the City of St. Paul and all claims should be

d

lo

S

m

0
l

S

S

e

d

.

12

1 Plaintiffs have alleged, but not brought, a Rule 23 motion. Defendants dispute Plaintiffs' claims meet the criteria in Federal Rule 23.
2 Plaintiffs dismissed the claims against Commander Snyder.

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 2 of 36
STATEMENT OF UNDISPUTED FACTS A. Background
From September 1 through September 4, 2008, the City of St. Paul, Minnesota hosted the Republican National Convention ("RNC"). Aff. Frazer~ 2. On September 1, 2008, there were multiple instances of property damage, cars with rocks thrown at them, cars tipped over, squad car tires slashed and windows broken and several reports of citizens being assaulted. Neuberger Dep. pp. 28-29; Frazer Dep. p. 82; Aff. Frazer Ex. B (5:57); Englund Dep. p. 23; Hagy Dep. p. 26. 3 Delegate buses were stopped and rocks were thrown at them and tires slashed. Neuberger Dep. p. 29. Groups threw sandbags and street signs at delegate buses. Neuberger Dep. p. 29. Dumpsters were lit on fire. Neuberger Dep. p. 29; Henry Dep. p. 54. Squad cars were encircled and officers were gravely concerned their cars would be tipped over with them inside. Neuberger Dep. p. 29. Multiple individuals were arrested for various activities throughout day one of the RNC.
By 3:00 p.m., permitted marches for day one had ended. Neuberger Dep. p. 158. Around 3:00p.m., a large group of about 100 people on Walnut and 7th were trying to make their way to Chestnut to access the Xcel Energy Center where the RNC was held. Neuberger Dep. p. 37. This group lit a dumpster on fire and pushed past officers. Henry Dep. pp. 54-55. Sr. Commander Neuberger, in the RNC Command Post (Neuberger Dep. p. 19), believed this same group of people made their way to Shepard and headed
3 The deposition transcripts of Defendants are attached to Second Aff. Tindal, Exhibits E through I. Hagy's deposition transcript is attached to Fourth Aff. Tindal, ExhibitS.
2

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 3 of 36
east toward Sibley. Neuberger Dep. p. 38. Neuberger ordered officers not to let people downtown. Neuberger Dep. p. 35. Officers were trying to regain control of downtown from destruction and chaos. Neuberger Dep. pp. 29-30, 38-39, 44, 46; Frazer Dep. p. 82; Englund Dep. p. 25. They were trying to keep groups from getting to the Xcel Energy Center to commit violence. Neuberger Dep. p. 39. Officers also needed to keep downtown controlled so emergency vehicles could access downtown. Henry Dep. p. 65. 4 B. Attack Against Officers
NRT36, a group of21 officers (Henry Dep. p. 29), was sent to Jackson and Sibley where the streets intersect Shepard. NRT36 was split between the intersections of Sibley and Shepard, and Jackson and Shepard with approximately 11 officers at each intersection. Frazer Dep. p. 17; Henry Dep. p. 73. A crowd was walking east on Shepard and stopped at Jackson while growing in size. Henry Dep. pp. 74-75. Sgt. Henry stepped in the street and ordered the group not to cross. Henry Dep. p. 75. He told people they could go east or west and used hand signals to direct them. Henry Dep. pp. 77, 85; Englund Dep. pp. 29, 33. Henry turned around and Sgt. Cleveland yelled, "watch out for the guys behind the sign." Henry Dep. pp. 77-78; Englund Dep. p. 34.
At approximately 4:30p.m., a group of 20 people tried to cross Shepard to get to Jackson. Henry Dep. p. 79; Aff. Frazer Ex. I (16:33); Aff. Frazer Ex. H (20:14). The crowd directly behind this group was about 40 people. Henry Dep. p. 79. The group on the sidewalk and street was approximately 250 people. Henry Dep. p. 70. Officers
4 See Affidavit of Anderson, Exhibit 1 for an overview of chaos and destruction that occurred on September 1, 2008.
3

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 4 of 36
believed both groups were working in concert; chanting, yelling at officers and staying focused on the officers. Frazer Dep. pp. 54, 58; Henry Dep. pp. 80-81, 97, 103-104; Englund Dep. pp. 48-49. People from both groups were throwing things at officers. Frazer Dep. p. 58; Englund Dep. pp. 40-41.
The group taunted law enforcement yelling "shoot." First Aff. Tindal Ex. B (1:02). The protesters yelled, "go" and crossed Shepard. First Aff. Tindal Ex. B (1:241:30). Officers yelled for the group to stay back. Henry Dep. p. 93; Englund Dep. p. 35. A rock the size of a softball came right at Sgt. Henry and he had to move to avoid being hit. Henry Dep. p. 94. The group threw feces bags. Henry Dep. p. 101; Englund Dep. p. 42; Aff. Frazer Ex. I (16:33); Aff. Frazer Ex. H (20:48). NRT36 urgently requested assistance. Aff. Frazer Ex. I (16:34); Aff. Frazer Ex. H (20:23). Sgt. Henry and Sgt. Englund were nearly struck with bags of feces. Henry Dep. p. 105; Englund Dep. p. 43. Another officer was hit with fecal matter. Henry Dep. p. 100; Englund Dep. p. 42. The group threw a container with liquid that shattered and broke near officers. Henry Dep. p. 107. Objects thrown at officers were coming from the south and west. Englund Dep. pp. 40-41.
NRT36 defended themselves and threw a stinger blast ball. Henry Dep. p. 109. The group attempting to cross the street retreated. Henry Dep. p. 110. The large group behind and to the west of this group continued to come toward officers in the street, chanting and throwing things at them. Henry Dep. pp. 110-111, 113. Eleven officers formed a line covering the east/west lanes of Shepard. Henry Dep. p. 121. Several individuals were allowed to leave to the east. Henry Dep. p. 152. The crowd went west
4

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 5 of 36
on Shepard. Henry Dep. p. 122; Aff. Frazer Ex. H (22:00); Aff. Frazer Ex. I (13:36). The crowd took over the street. Aff. Frazer Ex. H (22:06). Officers used riot control agents including inert gas, OC gas and marking rounds. Aff. Tindal Ex. L.
The crowd was still throwing objects at officers. Aff. Frazer Ex. H (23:33); Clark Dep. p. 30. 5 The crowd was approximately 400 people. Aff. Frazer Ex. H (24:00); Henry Dep. p. 72. Protesters grossly outnumbered officers. Aff. Frazer Ex. A (4:364:39); First Aff. Tindal Ex. B (3:36); Hagy Dep. p. 19. The crowd was aggressive toward officers after being pushed west. Aff. Tindal Ex. A. The crowd repeatedly yelled profanities and shouted, "The Whole World is Watching." Id; Henry Dep. p. 72; Englund Dep. p. 2 7. They also took down a street sign in the median of Shepard Road. First Aff. Tindal Ex. A (1: 45); Henry Dep. p. 138. People jumped on vehicles and broke windshields. Henry Dep. pp. 131, 133; Englund Dep. p. 68; Clark Dep. pp. 37, 50. The crowd continued to throw objects at officers including homemade bombs/fireworks. Henry Dep. p. 127; Englund Dep. pp. 44, 47; Aff. Frazer Ex. G (photos). It was "complete chaos." Henry Dep. p. 126; Clark Dep. p. 96.
A Chemical Agent Response Team (CART) arrived to assist NRT36. Clark Dep. p. 28. CART left and Mobile Field Force Division Two (MFF2) arrived to assist. Frazer Dep. pp. 22, 36. When MFF2 arrived at Jackson and Shepard, there were spent munitions, fecal matter, bandanas, signs and sticks. Frazer. Dep. pp. 40, 74; Frazer. Aff. Ex. G (photos). The crowd was blocking the eastbound traffic and consuming all of the
5 Clark's deposition transcript is attached to Third Aff. Tindal, Exhibit J.
5

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 6 of 36
walkway and grassway. Frazer Dep. p. 53. MFF2 formed a line of officers to assist in keeping the crowd moving west. Frazer Dep. p. 116.
Officers did not arrest individuals at Jackson and Shepard because they did not have resources or tactical advantage to surround the group of that size. Frazer Dep. pp. 59, 213-214; Henry Dep. pp. 134-135; Englund Dep. p. 28. Commander Frazer ordered the group to leave to the west eight times. Frazer Dep. pp. 60, 62, 63; Aff. Frazer Ex. D (5:29; 6: 18; 9:06). Some people left the area. Frazer Dep. p. 72. Officers lined the west edge of the park and allowed people to leave. Frazer Dep. p. 66; Clark Dep. pp. 63, 6566. It was critical the crowd leave because it was an unlawful assembly; Shepard is a route for emergency vehicles to the Xcel Center, a route for delegate buses and the First Lady's Motorcade was expected at 5:30p.m. on Shepard. Aff. Frazer~ 18; Aff. Pye ~ 3; Dec. Kirkwood~~ 3-4. C. Arrest
As officers moved west, Commanders Neuberger and Frazer decided to surround and arrest individuals. Frazer Dep. p. 78. The group that attacked NRT36, stayed together as a group. Frazer Dep. pp. 79, 101, 136-137. When the officers moved westbound, only inert blast balls and smoke with no OC was used to keep the crowd moving. Henry Dep. pp. 138-139. A few less lethal munitions were used on individuals to stop crimes. Henry Dep. p. 139; Clark Dep. p. 50.
The crowd arrived at a park on Shepard near Ontario and were encircled by officers. Neuberger Dep. p. 80; Frazer Dep. pp. 89-92. An announcement was given over a loud speaker those persons were under arrest. Neuberger Dep. p. 95; Frazer Dep.
6

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 7 of 36
p. 128; Clark Dep. p. 83. People were taken out of the encirclement who were not involved in the attack against officers. Frazer Dep. p. 133; Henry Dep. p. 166. Approximately 200 people were allowed to leave. Frazer Dep. pp. 133-135; Clark Dep. pp. 85, 88; Aff. Frazer Ex. L (00: 10-00:25). An announcement was made to the press to leave the area. Clark Dep. p. 91; Aff. Tindal Ex. M, p. 52. Arrest teams came in and arrested most of the remaining individuals. Frazer Dep. p. 134. D. Plaintiffs on September 1, 2008
1. Brook Bernini Bernini was acting as a "legal observer" in St. Paul. Sixth Aff. Tindal Ex. MM, Bernini Answers to Interr. #6. Upon learning persons were tear-gassed on Shepard, she went to observe. Bernini walked east on Shepard until she came to an intersection blocked by police. Bernini moved westbound. Police pushed people into a park on Shepard. Bernini sat in the park for about 30 minutes and was then allowed to leave. Id 2. Matthew Byrnes Byrnes was bicycling around St. Paul. Fourth Aff. Tindal Ex. V, Byrnes Answers to Interr. #3. He biked near the park on Shepard. A line of police formed on the northeast side of the road. Byrnes turned to go the way he came, but it was blocked by a new line of officers. Byrnes was released from the park. Id 3. Simon Cecil Cecil volunteered as a medic in downtown St. Paul. Sixth Aff. Tindal Ex. NN, Cecil Answers to Interr. #6. Cecil walked eastbound on Shepard toward Jackson. As he got to the intersection of Shepard and Jackson, there was a long line of people on the
7

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 8 of 36
sidewalk. A small group of people at the front of the line attempted to cross Shepard, where there was a line of police. The officers threw "concussion grenades" toward people. Id Cecil turned and ran west and was arrested.
4. Andrew Cohen Cohen and his friend walked to Shepard with a crowd of people after an earlier march. Fourth Aff. Tindal Ex. W, Cohen Answers to Interr. #6. Cohen walked east on Shepard. Near the Robert Street bridge, Cohen encountered a large crowd and police firing tear gas. Cohen then walked west on Shepard and was arrested. 5. David Drew, Jr. Drew volunteered as a medic. Fourth Aff. Tindal Ex. X, Drew Answers to Interr. #6. In the afternoon, he walked behind a group of protesters when the group got to Shepard and were blocked by police. Drew walked west and was arrested. 6. Kellan Dubbels Dubbels was in St. Paul to protest during the RNC. Sixth Aff. Tindal Ex. 00, Kellan Dubbels Answers to Interr. #6. Dubbels walked on Shepard with a group heading east. When the group reached Shepard and Jackson, they were stopped by officers. Dubbels turned and walked to the west and was arrested. 7. Kristofer Dubbels In the afternoon, Dubbels walked with a group of people from the capitol lawn down to Shepard. Fourth Aff. Tindal Ex. U, Dubbels Dep. p. 23. When the group got to Shepard and Jackson, the front of the group tried to cross the street to head back
8

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 9 of 36
downtown. Id, p. 26. The line of police at the intersection responded with chemical munitions. Dubbels went west and was arrested. Id, pp. 35, 43.
8. Alana Michelle Exum Exum was with friends in downtown St. Paul after the main march had ended. Third Aff. Tindal Ex. R, Exum Dep. p. 10. Exum saw people he knew and walked toward the river with them and others. Id, p. 12. Exum walked down Shepard and the group came to an intersection blocked by police. Id, p. 13. Exum tried to cross the street toward officers. Id, p. 14. Exum turned around and headed west. Id, pp. 16-17. Exum claims an officer pushed him in the back with a baton and told him to keep moving. Id, p. 18. Exum never sought medical treatment and claims he had only a small bruise from the baton. Id, pp. 23-24. Exum was arrested. Id, p. 23. 9. Bobby Reese Hagy, Jr. Hagy was in St. Paul and intended to go to the "Take Back Labor Day" concert on Harriet Island. Fourth Aff. Tindal Ex. S, Hagy Dep. p. 11. While walking down Shepard toward a bridge to get to Harriet Island, Hagy was stopped by people who instructed him not to go that way, as they had just been fired upon by officers using chemical irritants. Hagy then headed west. Id, pp. 30-34. Hagy was arrested. Id, p. 46. 10. Adam Hayden Hayden went with friends to see the "Taking Back Labor Day" show on Harriet Island. FourthAff. Tindal Ex. T, Hayden Dep. pp. 10-11. When they got to the path along Shepard, Hayden and his friends headed toward the Wabasha Bridge and observed the roadway blocked by officers. Id, p. 16. Hayden stood on the sidewalk along
9

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 10 of 36
Shepard trying to figure out how to get to Harriet Island, when a group tried to cross Shepard to go downtown. Id, p. 17. Hayden and his friends eventually headed west on Shepard. Id, p. 14. Hayden was arrested. Id, p. 32.
11. Adryn Hayes Hayes was in downtown St. Paul with a group of medics. Third Aff. Tindal Ex. Q, Westlund Dep. p. 29. Hayes followed an unpermitted march around the Xcel Center. Id Once the group reached Shepard, they headed east. At Shepard and Jackson, the group encountered officers. Marchers at the front carrying banners stepped into the street. Hayes went west and was arrested. 12. Kevin Hundt Hundt rode his bicycle to St. Paul because he wanted to see what was going on by the river. Fourth Aff. Tindal Ex. Y, Hundt Answers to Interr. #6. Hundt observed traffic blocked on Shepard and saw police coming toward him. Hundt was detained for a short time and released. Id 13. Rachel Jackson Jackson was with other medics in St. Paul. Fourth Aff. Tindal Ex. Z, Jackson Answers to Interr. #6. After the large protest, Jackson followed a group of protesters through downtown streets, a residential area, and eventually onto Shepard. When the group reached Jackson, there were officers. A group of protesters took a sign and started walking toward police. When the protesters were halfway across the intersection, police fired smoke grenades and other projectiles at the group. Jackson was arrested.
10

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 11 of 36
14. Tiana Johnson and Andrew Temperante After the march had ended, Johnson and Temperante were near the capitol and heard a police riot was occurring. Sixth Aff. Tindal Ex. PP, Johnson Dep. p. 23. Johnson decided to go down and witness this. Johnson and Temperante walked toward the river with about 20 people. Id, p. 20. Half of the group, but not Johnson or Temperante, moved forward toward police. Johnson and Temperante headed west and were arrested. Id, p. 28. 15. Garth Kahl Kahl was in St. Paul volunteering as a medic. Fifth Aff. Tindal Ex. II, Kahl Answers to Interr. #6. After the main march, Kahl walked east down Shepard and heard explosions. As he continued east, people were running toward him. Kahl provided saline water to flush eyes and skin and encouraged people to retreat west. Kahl was arrested. 16. Vain Mainstream Mainstream was in St. Paul to go to work. Fourth Aff. Tindal Ex. AA, Mainstream Answers to Interr. #6. Mainstream arrived three hours early for his shift. He parked at the St. Paul Cathedral, walked down Kellogg and saw a large group of protesters heading south. He figured they knew where they were going, so he followed them. The group made its way through the city, and eventually emerged onto Shepard heading east. A small group of protesters held their sign as a shield and began walking toward officers. Mainstream went west to the park. After being told to put his hands on his head, Mainstream did crunches (sit-ups). SixthAff. Tindal Ex. QQ, Mainstream Response to
11

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 12 of 36
Admis. #41. Mainstream gave officers the name Cedric Kangas. Mainstream was arrested.
17. David Morse Morse was in St. Paul documenting the RNC for San Francisco Bay Indymedia. Fourth Aff. Tindal Ex. BE, Morse Answers to Interr. #6. After the permitted march, Morse followed Anti-Capitalist Bloc protesters around downtown St. Paul. After walking down Shepard, Morse saw gas and smoke bombs released. Morse went west and was released in the park. Id 18. Jared Lanctot Lanctot was in St. Paul to cover the RNC for The Agenda (a quarterly publication based in Providence). Sixth Aff. Tindal Ex. RR, Lanctot Answers to Interr. #6. After covering the march from the capitol to the Xcel Center and back, Lanctot began walking to Harriet Island to cover the Take Back Labor Day Show. He was passing through the park along Shepard when he found the road blocked by police. Lanctot was arrested. Id 19. Michael Larson II Larson was in St. Paul to protest the RNC. Fourth Aff. Tindal Ex. CC, Larson Answers to Interr. #6. Larson was near the capitol when he heard protesters were going down by the river. Larson followed the protest west on Shepard until he got to Jackson where officers blocked the road. Some people in the group tried to cross the road. Larson headed west and was arrested.
12

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 13 of 36
20. Craig Neef Neefwas in St. Paul documenting protests against the RNC. ThirdAff. Tindal Ex. P, NeefDep. p. 13. Neef followed a group of protesters east on Shepard. Id, p. 2 7. People in the front of the group tried to cross Shepard and were stopped by police. Id, p. 28. Neefwas arrested in the park. Id, p. 42. 21. Mary Ogle On September 1, 2008, Ogle was in St. Paul to protest the RNC. Sixth Aff. Tindal Ex. JJ, Ogle Answers to Interr. #6. After the march, Ogle and her friends walked around the city. They walked from the capitol toward the river. When Ogle got to the river, she stopped to talk to people. While in the park, Ogle heard popping sounds and saw tear gas three blocks away. Ogle walked in the direction of the gas and popping sounds to find her friends who had earlier walked on ahead. Ogle went west on Shepard and was released in the park. 22. Tim Phillips Phillips was in St. Paul as a legal observer. Fifth Aff. Tindal Ex. DD, Phillips Answers to Interr. #6. Phillips followed members of the Anti-Capitalist Bloc as they walked downtown. At Shepard and Jackson, some of the group tried to cross the street toward Jackson. Police fired concussion grenades at them. Phillips moved westbound on Shepard and was released in the park. 23. Raphi Rechitsky Rechitsky was in St. Paul volunteering as a legal observer. Fifth Aff. Tindal Ex. EE, Rechitsky Answers to Interr. #6. He learned people near the river were tear-gassed.
13

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 14 of 36
He and Bernini walked to Shepard and saw people rushing toward the park. Rechitsky and Bernini passed the park and walked to where a large group of people were crowded on the sidewalk. A line of police was moving toward the crowd from the east. Rechitsky was released from the park.
24. Lambert Rochfort Rochfort was in St. Paul to videotape protests against the RNC. Third Aff. Tindal Ex. 0, Rochfort Dep. p. 14. After the march, Rochfort videotaped the Anti-Capitalist Bloc as they walked from downtown toward Shepard. Id, p. 29. At Jackson and Shepard, officers were waiting and as the group got near, fired concussion grenades, tear gas, and other projectiles. Id, p. 31. Rochfort went west and was arrested. Id, p. 44. 25. Nicholas Segner Segner was in St. Paul to attend the march against the RNC. Fifth Aff. Tindal Ex. FF, Segner Answers to Interr. #6. After the march, Segner followed a group to Shepard. When the group got near Jackson, Segner saw police. The police started throwing tear gas at the group. Segner went west to the park and was arrested. 26. Ryan Solem Solem and his girlfriend rode their bicycles to St. Paul to attend a concert on Harriet Island. Fifth Aff. Tindal Ex. GG, Solem Answers to Interr. #6. They rode down Shepard to figure out how to get up to the bridge. Solem heard explosions, was pushed to a park and arrested.
14

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 15 of 36
27. Zach Swift Swift attended a march in St. Paul. Sixth Aff. Tindal Ex. KK, Swift Answers to Interr. #6. After the march, Swift walked toward Harriet Island to attend the concert. As Swift was walking east along Shepard, he noticed people heading west suffering from the effects of tear gas. Swift was forced west and arrested. 28. Michael Ward II Ward was in St. Paul, in the park along Shepard in order to listen to a concert on Harriet Island. Sixth Aff. Tindal Ex. SS, Ward Answers to Interr. #6. After listening to the concert for awhile, Ward headed east along Shepard, but stopped near Ontario when he heard explosions and saw tear gas. Ward turned around and was arrested in the park. 29. Rachel Westlund Westlund was in St. Paul with a group of medics. Westlund Dep. p. 19. Westlund followed a group of protesters from the capitol toward Shepard. Id, p. 22. Once the group reached Shepard, they headed east. At Shepard and Jackson, the group encountered officers. A small group of protesters with a banner began crossing the street. The officers advanced toward the group and Westlund headed west. Id, p. 26. In the park, Westlund was approached by an officer with handcuffs and arrested. Westlund requested not to be handcuffed behind his back. Id, p. 31. The officer handcuffed Westlund behind his back. Westlund was booked and searched; however, an officer moved Westlund's handcuffs to the front. Id, p. 34. Westlund claims permanent injuries to his wrists but has not treated with a doctor. Id, p. 39.
15

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 16 of 36
30. Nelson Whitmore Whitmore was in St. Paul to attend a concert on Harriet Island. Sixth Aff. Tindal Ex. LL, Whitmore Answers to Interrogatories #6. Whitmore planned to listen to the concert from the river in the park along Shepard. After arriving at Shepard, Whitmore decided to cross the river to attend the concert. Whitmore walked east along Shepard and encountered a large group of people also heading east. Everyone walking eastbound along Shepard was stopped by police. Whitmore went west and was arrested. 31. Bruce Wilkinson Wilkinson was in St. Paul and participated in a march. Fifth Aff. Tindal Ex. H, Wilkinson Answers to Interr. #6. When a large group of people left the capitol area in the afternoon, Wilkinson followed. Once he reached Shepard, Wilkinson heard the concert taking place on Harriet Island and decided to attend. Wilkinson was walking east on Shepard when a large number of people started running west. When Wilkinson saw police, he turned around and started heading back to the park and was arrested.
STANDARD OF REVIEW Summary judgment is appropriate when there is no dispute between the parties about any genuine issues of material fact and when the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c).
ARGUMENT I. OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY
An officer is entitled to qualified immunity unless his or her conduct violated clearly established statutory or constitutional rights of which a reasonable person would
16

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 17 of 36
have known. Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Simply put, "[q]ualified immunity is an entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200 (citing Mitchell v. Forsyth, 472 U.S. 511 (1985)). Like absolute immunity, qualified immunity is effectively lost if a case is erroneously permitted to go to trial. Id
Courts have traditionally applied a two-step analysis to determine whether a government official is protected by qualified immunity. Saucier, 533 U.S. at 200-01. The first step is whether, taken in the light most favorable to the plaintiff, the facts alleged show the officer's conduct violated a constitutional right. Id If the answer is yes, the second step is whether the constitutional right at issue was clearly established. Id Because the sequence set forth under Saucier is not always convenient, the Supreme Court permits courts to exercise their discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first, in light of the circumstances of the particular case at hand. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
A. No Violation of a Constitutional Right Plaintiffs claim the officers violated their "Fourth Amendment rights to be free from arrest without probable cause and the use of excessive force when they authorized and directed their detainment and arrest at the Park, their jailing, and the deployment of chemical irritants and concussion grenades against them." 2nd Amend Compl. ~ 76. Also, "individual defendants violated [P]laintiffs' ... First Amendment right to free speech when they authorized and directed their detainment and arrest at the Park, their
17

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 18 of 36
jailing, and the deployment of chemical irritants and concussion grenades against them
on account of their perceived political expression." 2nd Amend Compl. ~ 77.
In Malley v. Briggs, 475 U.S. 335, 341 (1986), the Supreme Court explained:
[Police officers] will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have [acted similarly] ... but if officers of reasonable competence could disagree on this issue, immunity should be recognized.
Qualified immunity shields an officer from personal liability when an officer reasonably
believes his conduct complies with the law. Pearson, 129 S. Ct. at 823.
1. No Plaintiff Was Unlawfully Arrested.
Contrary to Plaintiffs' assertion, officers only need, and indeed had, arguable
probable cause to make arrests. "To justify a warrantless arrest, probable cause must
exist." United States v. Adams, 346 F.3d 1165, 1169 (8th Cir. 2003). When reviewing an
allegation probable cause was lacking to make a warrantless arrest the Court should:
consider whether the totality of facts based on reasonably trustworthy information would justify a prudent person in believing the individual arrested had committed ... an offense. Probable cause is to be assessed in terms of the circumstances confronting a reasonably cautious police officer at the time of the arrest, and the arresting officer is entitled to consider the circumstances, including arguably innocent conduct, in light of his training and experience. The probability, and not a prima facie showing, of criminal activity is the standard of probable cause.
Myers v. Morris, 810 F.2d 1437, 1455 (8th Cir. 1987), cert. denied, 484 U.S. 282 (1987)
(citations omitted); United States v. Houston, 548 F.3d 1151, 1154 (8th Cir. 2008).
In determining whether officers are entitled to qualified immunity for an unlawful
arrest claim, the issue is not probable cause in fact but 'arguable' probable cause because
"the qualified immunity privilege extends to a police officer who is wrong, so long as he
18

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 19 of 36
is reasonable." Walker v. City ofPine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). "Under this standard, all public officials are protected except the 'plainly incompetent' and those who are deemed to have 'knowingly violate[d] the law."' Gorra v. Hanson, 880 F.2d 95, 97 (8th Cir. 1989) (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). "The Constitution does not guarantee that only the guilty will be arrested." Baker v. McCollan, 443 U.S. 137, 145 (1979)).
The District of Minnesota and the Eighth Circuit recognize the Collective Knowledge Doctrine which allows probable cause calculations to add up information known to different, but not all officers, as long as they are working as a team. United States v. Gregoire, 2009 U.S. Dist. LEXIS 120803, *42-43 (D. Minn. 2009) (citing United States v. Gillette, 245 F.3d 1032, 1034 (8th Cir. 2001).
When it comes to the nuance of probable cause determinations for arresting riotous crowds, however, neither the Eighth Circuit nor the District of Minnesota has well developed case law. The United States Court of Appeals for the District of Columbia has more experience and recently clarified its line of cases in Carr v. District ofColumbia, 587 F.3d 388 (D.C. Cir. 2009). The Carr court held probable cause "is satisfied if the officers have grounds to believe all arrested persons were a part of the unit observed violating the law." Id at 407. Plaintiffs will likely argue officers did not have probable cause without giving a sufficient dispersal warning and reasonable opportunity for Plaintiffs to leave. The plaintiffs in Carr made the same argument and the court pointed out dispersal orders are not "a constitutional prerequisite before every group arrest. If police have probable cause to believe that the group they are arresting is committing or
19

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 20 of 36
has committed a crime, no more is necessary." Id at 410. Such requirement would be especially anomalous in dangerous riot situations where swift arrests are essential to quickly quell disruption. Id Plaintiffs may also claim officers needed to separately determine probable cause for each individual. The Carr court also rejected such assertion explaining:
[a] requirement that the officers verify that each and every member of a crowd engaged in a specific riotous act would be practically impossible in any situation involving a large riot ... To satisfy [plaintiffs'] suggested standard of proof would require virtually as many officers as rioters - and even then it is doubtful that it could be met. . . . To be sure, under the standard of our cases - that the police are obliged to show that the crowd acted unlawfully as a unit - it is possible that an entirely innocent person would be mistaken for a rioter. But it should be borne in mind that the legal issue is probable cause, not ultimate conviction. Id at 408. Similar to this case, in Carr, after officers witnessed protesters destroy property and hurl objects at police, an order was given for the protesters to be arrested. Id at 40304. The protesters moved to an alley where they were corralled and arrested. Id No order to disperse was given at any time. Id Plaintiffs moved for summary judgment. Id at 405. Plaintiffs argued even if it reasonably appeared to officers everyone in the street was rioting, probable cause did not exist to make arrests in the alley because uninvolved people could have been in the alley. Id at 408-09. The court rejected the argument because officers only had to show reasonable grounds to believe everyone arrested was a part of the riotous group. Id at 409. Officers demonstrated reasonable grounds by testifying they blocked one side of the alley; did not make indiscriminate arrests, only members of the crowd; and attempted to clear the alley of non-protesters prior to the
20

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 21 of 36
protesters' arrival. Id The court held the officers' version of events, "certainly permitted the police to believe reasonably that everyone in the alley had been a marcher" and denied plaintiffs' motion for summary judgment. Id
In the present case, no Plaintiff was unlawfully arrested. Under the Minnesota Statutes someone is guilty of riot "[w]hen three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property" and guilty of unlawful assembly when "three or more persons assemble ... [with a lawful] purpose, but the participants so conduct themselves in a disorderly manner as to disturb or threaten the public." §§ 609.71 & 609.705.
At Jackson and Shepard, officers came under siege from a barrage of rocks, urine, feces and other makeshift weapons thrown by the assembled crowd. The officers were outnumbered and overpowered by the crowd growing from 40 up to 400 people. The crowd was working in concert and chanting together. Additional officers were called in and at least eight warnings were given to the crowd explaining they would be arrested if they did not disperse. Some members of the crowd left, but many remained in violation of the dispersal order. All those who remained were on notice they were committing an unlawful assembly. Due to the crowd outnumbering the officers, officers could not safely surround the remaining crowd and pushed everyone back to a nearby park to conduct arrests. The entire crowd sat together in the park while officers individually arrested those believed seen hurling objects for felony riot and the rest of the crowd for unlawful assembly. These arrests were supported by arguable probable cause because they were founded upon the officers' personal observations of the group. Other people
21

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 22 of 36
dispersed throughout the park, including eight Plaintiffs who were released after a brief investigation by officers, cannot sustain unlawful arrest claims because they were merely detained.
While it is possible one or more innocent people were arrested, such fact is inconsequential because officers had a reasonable basis to believe each person they arrested was a part of the riotous crowd. When the crowd entered the park, they congregated in one particular area. People who were located in other areas of the park as well as elderly citizens and families were released because officers knew they were not members of the criminal group. Additionally, the number of bystanders in the park was significantly limited because the Minneapolis MFF blocked the park entrance and evacuating visitors before protesters entered the park. Officers did not indiscriminately arrest everyone in the park. Hundreds of people were allowed to leave. Because the officers acted reasonably in very dangerous, rapidly evolving circumstances, even if they made a mistake, they are entitled to qualified immunity and Plaintiffs' unlawful arrest claims must be dismissed.
2. No Violation of Free Speech Occurred. Plaintiffs' First Amendment rights to free speech were not violated by the arrests. In order to state claims under the First Amendment, Plaintiffs must be able to show officers were using law enforcement to retaliate against them for engaging in a prior act of free speech. Williams v. City ofCarl Junction, 480 F.3d 871, 874-875 (8th Cir. 2007). However, while "[i]t is undisputed that protesting peaceably is protected speech. Violent protest is not." Cross v. Mokwa, 547 F.3d 890, 896 (8th Cir. 2008); NAACP v. Claiborne
22

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 23 of 36
Hardware Co., 458 U.S. 886, 933 (1982) ("violent conduct is beyond the pale of constitutional protection"). First Amendment protections, while broad, are not absolute. Elrod v. Burns, 427 U.S. 347, 360 (1976). It is axiomatic police may stop or disperse public demonstrations or protests where "clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace or order appears." Cartwell v. Connecticut, 310 U.S. 296, 308 (1940).
Plaintiffs failed to show any of them were engaged in protected free speech at the time of the arrests. The permitted marches had concluded. No Plaintiff claims they were participating in a protest, peaceful or otherwise; engaged in political speech; or carrying a banner. Even so, what may have originally been a peaceful protest was violent when the decision to disperse and arrest was made. The crowd was assaulting police officers, they were disorderly and disturbing the public peace. They were not engaged in protected free speech. Likewise, those who claim they were bystanders listening to or on their way to a concert were not engaged in a protected free speech activity. Moreover, Plaintiffs have absolutely no evidence officers specifically targeted them in retaliation for listening to the concert. Habiger v. City ofFargo, 80 F.3d 289, 296 (8th Cir. 1996) (dismissing protester's First Amendment claim for failing to show officers' pretext). Accordingly, all Plaintiffs' First Amendment claims must be dismissed.
3. No Unlawful Force Was Used Against Any Plaintiff. The force used by officers to stop the riot and move everyone to a nearby park was reasonable under the circumstances. While the right to be free from excessive force is clearly established, "Fourth Amendment jurisprudence has long recognized that the right
23

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 24 of 36
to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396; Guite v. Wright, 147 F.3d 747, 760 (8th Cir. 1998). "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment. Excessive force claims are analyzed under the Fourth Amendment's "objective reasonableness" standard. Graham, 490 U.S. at 388; see also Saucier, 533 U.S. at 209-10. "The reasonableness of a particular use of force depends on the circumstances of each case, including 'the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."' Wertish v. Krueger, 433 F.3d 1062, 1066 (8th Cir. 2007) (quoting Graham, 490 U.S. at 396). The use of some force by police is reasonable when an arrestee flees, resists arrest, or disobeys orders. See e.g., Foster v. Metro. Airports Comm 'n, 914 F.2d 1076, 1082 (8th Cir. 1990).
"We entertain no doubts that the privilege of individual police officers to fire in self defense or to quell a riot are such common law defenses and may be asserted in response to the §1983 cause of action." Burton v. Waller, 502 F.2d 1261, 1274-76 (5th Cir. 1974) ("one may use deadly force 'for the purpose of suppressing a riot or preventing the other [person] from participating in it . . . if the riot is one which threatens death or serious bodily harm.' Restatement Second§ 142(2)."). "'The wholesale commission of common state-law crimes creates dangers that are far from ordinary. Even in the context of political protest, persistent, organized, premeditated lawlessness menaces in a unique
24

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 25 of 36
way the capacity of a State to maintain order and preserve the rights of its citizens."' Forrester v. City ofSan Diego, 25 F.3d 804 (9th Cir. 1994) (citation omitted).
Federal courts around the country have upheld the use of force among unruly assemblies of people who create riotous circumstances. Barney v. City ofEugene, 20 Fed. Appx. 683, 685 (9th Cir. 2001) (using tear gas after violence erupted and protesters refused to move back); Darrah v. City ofOak Park, 255 F.3d 301, 307 (6th Cir. 2001) (finding hand-strike to the face of plaintiff who was trying to stop an arrest in the midst of an unruly crowd was reasonable); Forrester v. City ofSan Diego, 25 F.3d 804, 807-08 (9th Cir. 1994) (using pain compliance techniques on protesters who refused to move was reasonable); Burton v. Waller, 502 F.2d 1261, 1276-81 (5th Cir. 1972) (holding officers were reasonable to fire weapons in the air to disperse crowd); Winston v. City of Shreveport, 2010 U.S. App. LEXIS 16887, *4 & 17-18 (5th Cir. Aug. 12, 2010) (using baton to push plaintiff who failed to disperse); Ellsworth v. City ofLansing, 2000 U.S. App. LEXIS 2049, *10-13 (6th Cir. Feb. 10, 2000) (releasing tear gas to compel protesters who refused to move).
Officers at Jackson and Shepard faced a boisterous crowd of up to 400 people. The crowd became increasingly agitated because it was prevented from entering downtown and took out its anger by destroying property and confronting officers. The crowd waged its battle by launching bricks, rocks, urine, feces and other projectiles at officers and yelling obscenities. The officers, who were greatly outnumbered and feared for their safety, reasonably defended themselves with pepper spray, pepper balls, tear gas and other non-lethal force to quell the violence.
25

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 26 of 36
Once the decision was made to make a mass arrest and the crowd was given numerous orders to disperse, it was reasonable for the officers to use some degree of force to compel the remaining crowd to follow their directions. Out of concern for everyone's safety, officers decided to move the crowd to a nearby park. The officers' dispersement of tear gas and other non-lethal weapons just behind the crowd to motivate their movement was not unlawful because officers may use a reasonable amount of force to conduct arrests.
Moreover, since the right to make an arrest carries with it the right to use some degree of physical coercion, excessive force claims lie only when a plaintiff suffers "actual injury" resulting from force employed during an arrest. E.g., Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005). Simply put, "a de minimus [sic] ... injury is insufficient to support a finding of a constitutional violation." Crumley v. City ofSt. Paul, 324 F.3d 1007 (8th Cir. 2003).
No Plaintiff sustained a substantial injury as a result of the mass arrest. Vague allegations of physical pain, emotional distress, humiliation and mental anguish are insufficient to support an excessive force claim. 2nd Amend Compl. ~ 65; see Cook v. City ofBella Villa, 582 F.3d 840, 853 (8th Cir. 2009) ("Generally, allegations of an officer's use of a de minimis amount of force, without any resulting injury, are insufficient to support a finding of a constitutional violation."); Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) ("[R]elatively minor scrapes and bruises and the lessthan-permanent aggravation of a prior shoulder condition were de minimis injuries that support the conclusion that [the officer] did not use excessive force."); Crumley v. City of
26

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 27 of 36
St. Paul, 324 F.3d 1007 (8th Cir. 2003) (holding handcuffs applied so tight they caused plaintiffs wrists to bleed was insufficient to establish excessive force); Foster v. Metro. Airports Comm 'n, 914 F.2d 1076, 1082 (8th Cir. 1990) ("[A]llegations of pain ... without some evidence of more permanent injury, are [not] sufficient to support [a] claim of excessive force."). Plaintiffs' allegations of mild temporary irritation from pepper spray are simply not sufficient to support a claim for excessive force. See Jones v. City ofMinneapolis, 2007 U.S. Dist. LEXIS 56280, *26-28 (D. Minn. Aug. 1, 2007) (dismissing excessive force claims because injury from mace used to disperse crowd was de minimis). Furthermore, only one Plaintiff has alleged a permanent injury, but he has not sought treatment. Accordingly, Plaintiffs' claims for unlawful force must be dismissed.
B. The Individual Defendants Did Not Violate Clearly Established Constitutional Rights.
"Clearly established Federal law ... refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions at the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). As the Supreme Court determined in Hope v. Pelzer, 536 U.S. 730, 739 (2002):
[Q]ualified immunity operates "to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier v. Katz, [533 U.S., at 206]. For a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511, 535 (1958)]; but it is to say that in the light of pre-existing law
27

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 28 of 36
the unlawfulness must be apparent." Anderson v. Creighton, [483 U.S. 635, 640] (1987). (emphasis added). On September 1, 2008, case law had not clearly established officers would violate First and Fourth Amendment rights by making a mass arrest after coming under attack by a crowd which far outnumbered officers.
1. Unlawful Arrest. In Owaki v. City ofMiami, 491 F. Supp. 2d 1140, 1146 & 1152 (S.D. Fla. 2007), plaintiff alleged he was arrested without probable cause during a protest of the 2003 meeting of the Free Trade Area of the Americas ("FTAA"). Officers testified many of the protesters in the area had become violent and unruly throwing objects at them like ball bearings, screws, bolts, rocks and paint. Id at 1153. In response to the violence, officers made multiple announcements asking people to move to specific streets. Id at 1154. Plaintiff did not leave. Id The court held it was undisputed a reasonable officer could believe plaintiff meant to disobey the dispersal order and thus knowingly participated in an unlawful assembly; therefore, the arrest was supported by probable cause. Id The court also held officers could rely on information from one officer to another, to develop probable cause and the fact a criminal "defendant is subsequently acquitted or charges are dropped against the defendant is of no consequence in determining the validity of the arrest itself." Id at 1154-55. Additionally, in Delgado v. Miami-Dade County, 456 F. Supp. 2d 1234, 1235-36 (S.D. Fla. 2006) a journalist who started walking with a group of protesters at the same
28

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 29 of 36
2003 FTAA meeting was arrested, handcuffed and made to lie on the ground face down for at least an hour and a half because the protesters she was with matched a description of people who were seen throwing rocks. Id at 1236. She was later booked into a correctional facility until her arraignment the next morning where all charges were dropped. Id The court held:
Plaintiff admits to being in an area where protesters of the FTAA summit had gathered ... , understood that it was an area of heightened police activity, and admits to meeting and traveling with a group of protesters in the midst of this heightened activity. She admits that she encountered different groups of police officers seeking to disperse the protesters, and was with a group of protesters ... when she was initially detained. Plaintiff also does not know what the subjects of her interview were doing immediately before she joined the group. Id at 1239. The court held collective knowledge of the officers gave rise to arguable probable cause to arrest plaintiff under these circumstances and the fact the charges were later dropped was irrelevant. Id This case involved similar chaotic circumstances where officers reacted swiftly in conducting a mass arrest to regain control of downtown St. Paul from a group of protesters. Like Owaki and Delgado, officers had a reasonable basis to believe Plaintiffs who did not disperse and intermixed among the protesting crowd were in fact members of the rioting group. It was not clearly established in September 2008 the officers' mass arrest would violate Plaintiffs' rights to be free from an unlawful seizure; therefore, the officers are entitled to qualified immunity and Plaintiffs' unlawful arrest claims must be dismissed.
29

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 30 of 36
2. Excessive Force. This Court has held, "the need to use force in making a swift arrest is magnified when the officer is surrounded by a hosti[l]e crowd." Spoo v. Maciejewski, 2004 U.S. Dist. LEXIS 21985, *24 (D. Minn. Oct. 14, 2004). In Spoo, Michael Spoo left a bar and joined a group of a couple hundred individuals in the street. The atmosphere was described as somewhat hostile with people fighting, throwing bottles and blocking traffic. Spoo confronted an officer he saw push a woman and told the officer to leave her alone. When the officer accused him of obstructing, Spoo demanded an explanation. The officer responded by pushing Spoo and instructing him to go home. Spoo initially complied, but returned and demanded the officer's badge number. According to Spoo, the officer charged at him, yelled "[t]hat's it, you're going to jail," clothes-lined him and tackled him to the ground. Id at *4. The officer then held Spoo down and punched him in the head. Spoo denied resisting the arrest. Although the Court determined the strike to Spoo' s head was excessive, the Court recalled the "fluid and rapidly developing conditions [the officer] faced" and determined that "[u]nder the circumstances, [the officer] needed to swiftly arrest and remove Spoo from the scene." Id. at *22. The Court explained "[a]s in Saucier, '[i]t cannot be said there was a clearly established rule that would prohibit' [the officer] from tackling Spoo and striking him to accomplish these legitimate goals." Id In concluding the force the officer used was not objectively umeasonable under clearly established law, the Court explained:
30

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 31 of 36
Faced with tense, uncertain situations-where a show of weakness or indecision can fuel an explosive outburst-we ask [police officers] to make difficult judgment calls in real time. The confrontation between [the officer] and Spoo took a mere instant-far less time than needed to read a page of this opinion. Under such circumstances, officers will make mistakes. But the community confers qualified immunity upon police officers to ensure that they cannot be sued for every mistake they make. They are properly made to answer only for their umeasonable mistakes, the kind that demonstrate "plain incompetence" or "knowing" violations of the law. [The officer's] alleged mistakes do not fall into this category. He is entitled to qualified immunity.
Id at 24; see also Kenyon v. Edwards, 462 F.3d 802, 804-07 (8th Cir. 2006) affd on
rehearing, 503 F.3d 722 (2007) (holding officers' force during arrest was not excessive
where plaintiff suffered a rotator cuff injury because the officers faced such a "charged
and potentially dangerous atmosphere" in which violence had already occurred amidst a
"large crowd of people in an atmosphere of hostility.")
In Forrester, 25 F.3d at 805, protesters at abortion clinics blocked clinic entrances
and refused to leave after ordered to do so. Officers forcibly moved the arrestees by
tightening Orcutt Police Nonchakus (two sticks of wood connected at one end by a cord)
around the protesters' wrists until they stood up and walked or by other direct physical
contact including: firm grip, wrist and arm twisting, and pressure point holds. Id at 805-
806. Arrestees complained of injuries to their hands and arms including bruises, a
pinched nerve and one broken wrist. Id at 806. The court held evidence supported the
jury's conclusion the officers' use of pain compliance techniques was reasonable under
the circumstances. Id at 807. The court reasoned:
the city clearly had a legitimate interest in quickly dispersing and removing lawbreakers with the least risk of injury to police and others. The arrestees were part of a group of more than 100 protesters operating in an organized
31

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 32 of 36
and concerted effort to invade private property, obstruct business, and hinder law enforcement. Although many of these crimes were misdemeanors, the city's interest in preventing their widespread occurrence was significant. Id Plaintiffs argued officers could have used less intrusive force, but the court pointed out whether officers could have used less painful, less injurious force was "simply not the issue." Id at 808. The evidence showed demonstrators ignored orders to move and "officers used minimal and controlled force in a manner designed to limit injuries to all involved." Id; see also Barney, 20 Fed. Appx. at 685 (holding deployment of tear gas against protesters was reasonable force and conclusory allegations officers intended to interfere with plaintiffs First Amendment right, without more, was insufficient to sustain §1983 claim). The circumstances faced by officers were chaotic, intense and violently hostile. The entire day for officers was strained and nearly resulted in an overthrow of the city. To officers on the scene, the crowd at Jackson and Shepard appeared intent on committing further lawlessness. The city had a significant interest in regaining control of the crowd. Officers lawfully defended the immediate attacks on their own safety and determined the safest method of arrest for everyone involved would be to encircle protesters in the nearby park. The use ofless-than-lethal munitions just behind the crowd as a threat to encourage movement toward the park was a controlled use of force to safely accomplish arrests and was certainly less severe than pain compliance maneuvers. Certainly, on September 1, 2008, it was not clearly established the officers' actions would violate Plaintiffs' Fourth Amendment rights and they are entitled to qualified immunity.
32

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 33 of 36
II. PLAINTIFFS' MONELL CLAIM AGAINST THE CITY OF ST. PAUL MUST FAIL. "Under 42 U.S. C. §1983, a municipality may not be held vicariously liable for the
unconstitutional acts of employees." Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999). "A municipality may be held liable under Section 1983 only if a municipal custom or policy caused the deprivation of the right protected by the constitution or federal law." Angarita v. St. Louis County, 981 F.2d 1537, 1547 (8th Cir. 1992). "For a municipality to be liable, a plaintiff must prove that municipal policy or custom was the 'moving force [behind] the constitutional violation."' Mettler, 165 F.3d at 1204. The Eighth Circuit does not use "policy" and "custom" interchangeably. I d. "[A] 'policy' is an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." Id Plaintiffs only allege an unconstitutional policy, they do not allege an unconstitutional custom. See 2nd Amend Compl.
A. No Unconstitutional Policy. A municipal policy is not unconstitutional if it might permit unconstitutional conduct in some circumstances; it is unconstitutional only if it requires its officers to act unconstitutionally. See Handle v. City ofLittle Rock, 772 F.Supp. 434, 438 (E.D.Ark. 1991). The lack of a pattern of unconstitutional misconduct effectively ends the court's inquiry. See Thelma D. ex rel. Delores A. v. Board ofEducation, 934 F.2d 929, 933 (8th Cir. 1991). "[A] 'policy' is an official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such
33

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 34 of 36
matters." I d. The record contains no evidence of a widespread policy that would require or cause any individual's constitutional rights to be violated.
Plaintiffs claim the City implemented a policy of isolation and containment of protesters during the RNC claiming the policy directed police to arrest protesters if they "appeared downtown in the City during the RNC." 2nd Amend Compl. ~ 78. There was no policy to keep people from downtown during the RNC. Commander Neuberger made a tactical decision during the afternoon of day one, to keep people out of downtown until officers regained control. The city faced significant property damage and chaos on day one of the convention. Access to downtown was only restricted for a short amount of time, from approximately 2:00p.m. (Aff. Frazer, Ex. I (15:13)) to the time when the arrests on Shepard started. Neuberger Dep. p. 119; Aff. Frazer Ex. I (17:24). This brief restriction on access to downtown is not an unconstitutional policy.
Plaintiffs also claim the city's policy authorized "force to intimidate protesters and quash political expression." 2nd Amend Compl. ~ 78. The Civil Disturbance Management Plan for the RNC's mission statement was:
To provide a safe environment that protects life, property and free speech through a tolerant approach by well-trained, disciplined Minnesota peace officers relating to the lawful activities conducted by those who wish to exercise their First Amendment Rights in the Minneapolis/St. Paul metropolitan area. Aff. Frazer Ex. M, p. 3. Clearly, this policy is not unconstitutional. Plaintiffs fail to produce evidence of an official policy suppressing free speech rights. Plaintiffs also claim the policy authorized arrests without probable cause and the use of excessive force. 2nd Amend Compl. ~ 78. The city's policy stated: "where
34

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 35 of 36
crowds are engaged in unlawful conduct, the MFF will make reasonable efforts to employ 'non-arrest' methods of crowd management as the primary means of restoring order... " Aff. Frazer Ex. M, p. 5. There is nothing unconstitutional about this policy. Additionally, for non-peaceful civil disobedience, like the situation on Shepard and Jackson, where there was property damage, an attack on officers and interference with a roadway,6 officers could use less-lethal munitions against the crowd to prevent injuries, damage to property and to move the crowd. Aff. Frazer Ex. M, p. 8. This policy is not unconstitutional. See Ellsworth v. City ofLansing, 2000 U.S. App. LEXIS 2049, *7 (6th Cir. Feb. 10, 2000) (citing to the district court who found using tear gas, when the crowd was warned but it is not clear it was heard by the crowd, to get the crowd to move was not an unconstitutional policy.)
The record contains no evidence of a widespread policy that would require or cause a violation of an individual's constitutional rights. Plaintiffs challenge the use of force and arrests on Shepard Road on September 1, 2008. However, a single incident in no way constitutes a custom or practice of illegal seizure. Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Furthermore, Plaintiffs have not shown "deliberate indifference to or tacit authorization of such conduct by the governmental entity's policy making officials ...." 6 It was critical Shepard remain accessible during the RNC. Shepard between Chestnut and Sibley was a primary route for delegate buses. Shepard needed to be accessible for emergency access to the Xcel Energy Center. Shepard was also a route for anyone needing a motorcade including the President, First Lady and Vice President. Aff. Pye ~ 3. Shepard was the route for the First Lady's Motorcade at approximately 5:30p.m. on September 1, 2008. Dec. Kirkwood~~ 3-4.
35

CASE 0:09-cv-02312-PAM-JJG Document 48 Filed 09/20/10 Page 36 of 36

Mere allegations without factual proof cannot support a claim for improper custom or policy. Russell v. Hennepin County, 420 F.3d 841, 848 (8th Cir. 2005) (requiring evidence in record to support Monell claim). All claims against the City of St. Paul must be dismissed.
CONCLUSION For the foregoing reasons, Defendants request the Court grant their Motion for Summary Judgment and dismiss Plaintiffs' claims in their entirety, with prejudice, together with costs and disbursements.
IVERSON REUVERS

Dated: September 20, 2010

By: s/Jon K. Iverson Jon K. Iverson, #146389 Jason M. Hiveley, #311546 Susan M. Tindal, #330875
Attorneys for Defendants 9321 Ensign Avenue South Bloomington, MN 55438 (952) 548-7200

36

 
 CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

BROOK BERNINI, MATTHEW BYRNES, )

SIMON CECIL, ANDREW COHEN,

)

DAVID DREW JR, KELLAN DUBBELS, )

KRISTOFER DUBBELS, ALANA

)

MICHELLE EXUM, BOBBY REESE

)

HAGY JR, ADAM HAYDEN, ADRYN

)

HAYES, KEVIN HUNDT, RACHEL

)

JACKSON, TIANA JOHNSON, GARTH )

KAHL, JARED LANCTOT, MICHAEL

)

LARSON, VAIN MAINSTREAM, DAVID )

MORSE, CRAIG NEEF, MARY OGLE,

)

TIM PHILLIPS, RAPHI RECHITSKY,

)

LAMBERT ROCHFORT, NICK SEGNER, )

RYAN SOLEM, ZACH

)

SWIFT, ANDREW TEMPERANTE,

)

MICHAEL WARD, II, RACHEL

)

WESTLUND, NELSON WHITMORE, and )

BRUCE WILKINSON

)

)

On behalf of themselves and all others

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF ST. PAUL, STEVEN FRAZER, )

BILL SNYDER, JOE NEUBERGER, AXEL )

HENRY, PATRICIA ENGLUND, and )

MATTHEW CLARK, In their individual )

capacity,

)

)

Defendants.

)

)

)

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
CIVIL ACTION NO. 09-2312 PAM/JJG

I. INTRODUCTION The parties to this case present polar opposite versions of the same event: a mass arrest on Shepard Road during the Republican National Convention. The defendants contend that they
1

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 2 of 40
were the victims of a full-scale attack by a 400-strong mob in the midst of a state of emergency in downtown St. Paul. The plaintiffs, all arrested in the mass arrest, have brought forth ample evidence to show that the claimed attack never happened, that the police were the aggressors, and that they and many other innocent civilians were the victims of an unlawful police sweep of Shepard Rd., resulting in the mass arrest. Indeed, the police commander responsible for executing the mass arrest has admitted that he knew he was ordering the arrest of many innocent civilians:
Q. Okay. And did you -- and before that [arrest] order was given, you knew that you had approximately 200 people in the area within the encirclement who you did not have probable cause on? A. Correct.
On a motion for summary judgment, such factual disputes should not be resolved by the court. They are the province of the jury, and defendants’ motion should thus be denied.
II. FACTS a. The Defendants This case arises out of a mass arrest in the City of St. Paul on September 1, 2008, the first day of the Republican National Convention (“RNC”). The St. Paul Police Department had a Civil Disturbance Management Plan to guide its law enforcement activities during the RNC. (Frazer Aff., Ex. M.) Attached as Appendix D to the Plan was a Mass Arrest Warning. Absent exigent circumstances, the Warning was to be issued by police officers prior to a mass arrest. (2nd Tindal Aff., Ex. F, Neuberger Depo., pp. 145-46; 6th Shulman Aff., Ex. 58.) The Warning required officers to provide a dispersal route to civilians and was to be repeated at specific intervals to allow civilians adequate time to disperse. (Frazer Aff., Ex. M.)
2

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 3 of 40
In training leading up to the RNC, law enforcement officers, including the defendants here, all had instruction on constitutional principles relevant to making arrests, the use of force, and the First Amendment. (6th Shulman Aff., Ex. 55) This training set out Fourth Amendment case law on false arrests and excessive force. (Id.) The training also discussed the First and Fourth Amendments in the context of civil disorder. (6th Shulman Aff., Ex. 57.) Officers were instructed to use a formal arrest warning prior to executing a mass arrest. (6th Shulman Aff., Ex. 58.) Finally, defendants also studied how other cities handled civil disturbances where mass arrests had been made. (6th Shulman Aff., Ex. 56.)
Defendant Joseph Neuberger, a member of the St. Paul Police Department, was a Senior Commander in charge of mobile field force command post operations for the RNC. (Neuberger Depo., pp. 5, 10.) Sr. Cmdr. Neuberger understood that he had to have probable cause to arrest a person and that he was only allowed to use an objectively reasonable amount of force in effecting an arrest. (Id. at 12.) Sr. Cmdr. Neuberger understood, and it was taught in officer training, that if a crowd was moving in the direction desired by officers, officers should not use additional force beyond their own presence. (Id. at 150.) Sr. Cmdr. Neuberger believed that it was inevitable that the police would be sued for their actions during the RNC, and officers were informed of this in their training. (Neuberger Depo., pp. 152-53; 6th Shulman Aff., Ex. 55.)
On September 1, 2008, Sr. Cmdr. Neuberger had the assignment of east area commander for the mobile field force (“MFF”) operations. (Neuberger Depo., pp. 12-13.) A MFF is a unit of law enforcement officers consisting of 75-100 officers. (Neuberger Depo., p. 13.) Sr. Cmdr. Neuberger oversaw five MFF’s in the east area. (Id.) On September 1, Sr. Cmdr. Neuberger was working out of the MFF Command Post. (Id. at 19.) At the Command Post, he had live television feeds of the downtown area, radio communication, and telephone communication with
3

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 4 of 40
other law enforcement officers. (Id. at 21-22, 24.) The actions of MFF’s, including the use of riot control agents, had to be approved by Sr. Cmdr. Neuberger, absent exigent circumstances. (Id. at 31-33.)
Sr. Cmdr. Neuberger had only limited television coverage of the events on Shepard Rd. and relied on radio communications for his decision-making. (Neuberger Depo., pp. 25-26.) For the events on Shepard Rd., Sr. Cmdr. Neuberger did not communicate with the F.B.I., Secret Service, or Department of Homeland Security. (Id. at 23-24.)
Defendant Steven Frazer, a member of the St. Paul Police Department, had a significant role in the training of officers leading up to the RNC. (2nd Tindal Aff., Ex. E, Frazer Depo., p. 7.) Cmdr. Frazer understood that he had to have probable cause to arrest a person and that he could only use force consistent with Graham vs. Connor. (Id. at 10-11.) Cmdr. Frazer knew that probable cause was required for mass arrests too. (Id. at 230.) Cmdr. Frazer understood that officers were not to use gas against a crowd moving in the direction commanded by officers. (Id. at 205-08.) In his training for the RNC, Cmdr. Frazer was informed that he would be sued for his actions during the RNC. (Id. at 161.) On September 1, 2008, Cmdr. Frazer was acting as Commander of a MFF. (Id. at 11-12.)
Defendant Axel Henry is a Sergeant in the St. Paul Police Department. Sergeant Henry understood that he was only allowed to use objectively reasonable levels of force against suspects. (2nd Tindal Aff., Ex. G, Henry Depo., p. 11.) Sergeant Henry believed, however, that it was permissible to use “inert blast balls or things that made noise or produced smoke” to herd a crowd already moving in the direction desired by officers. (Id. at 14.) On September 1, 2008, Sergeant Henry was acting as lead sergeant for Neighborhood Response Team (“NRT”) 36 in downtown St. Paul, leading a group of approximately 21 officers. (Id. at 14-16.)
4

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 5 of 40
On September 1, 2008, defendant Patricia Englund, a member of the St. Paul Police Department, was assigned to NRT 36. (2nd Tindal Aff., Ex. H, Englund Depo., p. 11.)
On September 1, 2008, defendant Matthew Clark was in charge of the Minneapolis Chemical Agent Response Teams (“CART”) at the RNC. (3rd Tindal Aff., Ex. J, Clark Depo., pp. 17-18.) Though Lt. Clark was an employee of the Minneapolis Police Department, on September 1, he was also under the direction of Sr. Cmdr. Neuberger. (Id. at 20-21.) Lt. Clark understood that he could not use more force than necessary to accomplish his law enforcement objectives. (Id. at 17.) Lt. Clark understood that he could not use gas or other non-lethal weapons against compliant suspects. (Id.) Lt. Clark understood that he had to have probable cause to arrest a person. (Id. at 15-16.)
b. The Incident Begins Late in the afternoon of September 1, 2008, a group of civilians walked eastbound on the sidewalk on the south side of Shepard Rd. in downtown St. Paul. (Shulman Aff., Ex. 5, 00:0000:56.) The civilians were not interfering with traffic or acting in an unruly manner. (Id.) Sgt. Henry with NRT 36 drove by the civilians and did not believe that he had probable cause to arrest them. (Henry Depo., p. 60.) Sgt. Henry did not perceive all of the civilians along Shepard Rd. to be part of the same group. (Id. at 70.) NRT 36 drove to the intersections of Jackson St. and Shepard Rd. and Sibley St. and Shepard Rd. to block access into downtown from Shepard Rd. (Id. at 73.) When the group of civilians reached Jackson St. and Shepard Road, they waited on the south side of Shepard Rd. (First Tindal Aff., Ex. B, 00:30-01:25; Shulman Aff., Ex. 4, 00:0000:45.) NRT 36 stood across the entrance to Jackson St. on the north side of Shepard Rd. (First Tindal Aff., Ex. B, 00:30-01:25; Shulman Aff., Ex. 4, 00:00-00:45; Henry Depo., p. 73.)
5

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 6 of 40

Sr. Cmdr. Neuberger had sent NRT 36 to block this entry point into downtown.

(Neuberger Depo., p. 47.) Sr. Cmdr. Neuberger instructed Sgt. Henry not to allow civilians to

enter back into downtown. (Neuberger Depo., pp. 35-38; Henry Depo., pp. 63-64.) Sr. Cmdr.

Neuberger gave this directive “to clear the downtown of these anarchist groups and -- and violent

protesters, and reestablish control, reestablish law enforcement presence in and around

downtown.” (Neuberger Depo., pp. 38-39, 43-44.) Although there were thousands of protesters

in St. Paul that day, information received by law enforcement indicated that only a “small minority” was responsible for the alleged criminal acts. (3rd Tindal Aff., Ex. K.)

Sr. Cmdr. Neuberger had decided to clear downtown of all groups on foot, whether law-

abiding or not, because he had declared the entire downtown to be a crime scene:

Q. What about individuals who were on foot about whom you did not have any information that they were violent?

A. It would depend on the location. But in general, I would -- if it was a large group, my guess would be that they would have been, you know, moved out of downtown also.

Q. Well, you said your guess. You know for a fact that at least from Shepard Road, no groups were allowed to walk back into downtown after about 4 p.m. on the 1st. Right?

A. Correct.

* * *

Q. Are you saying that there were no law-abiding citizens on Shepard Road on the afternoon of September 1st who sought to get back into downtown by either Jackson or Shepard?

A. I'm not saying that.

Q. Or Jackson or Sibley? Sorry.

A. No. I'm not saying that, that there -- there were no law-abiding -- or that -- if I understand your question, I'm not saying everybody on Shepard Road was a criminal.

6

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 7 of 40
* * * Q. Well, would you agree that you kept out of downtown St. Paul people who were law-abiding on the afternoon of September 1st? A. Potentially, yes. There was a period of time that we established a police cordon, like we would do a crime scene, and till we could figure out who was what. Q. And were you troubled at all about keeping out people who were law-abiding? A. Well, at that point, we didn't know who was and who wasn't. Q. So it was keep people out first, decide who was law-abiding second? A. Establish the law enforcement presence and control, yeah. Reestablish a -- a presence, you know, to -- to make sure that the folks that were there were, in fact, law-abiding. Because it was -- leading up to it, again, as we said, it was out of -- I said it was out of control. Q. Was all of downtown a crime scene on the afternoon of September 1st, 2008? A. In a broad sense, yes.
(Neuberger Depo., pp. 44-47.) Later, however, Sr. Cmdr. Neuberger backed off this testimony and revealed that the
decision on whom to allow to pass and whom to block was largely arbitrary: Q. Once -- well, once at -- once NRT 36 was at Jackson and Sibley, could individuals have walked -A. Yes. Q. -- past them up Sibley and Jackson? A. Yes. Yes. Q. Okay. Did you make that clear to NRT 36? A. As far as like a specific command, no.
7

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 8 of 40
Q. Okay. What -- on what do you base your statement that individuals could have walked past NRT 36 on Jackson or Sibley towards downtown?
A. That -- well, we had been operating for most of the afternoon under that premise, that if there was one or two or three or four and -- and they didn't outwardly appear to be causing any problems, they had free reign of downtown.
Q. Okay.
A. Had been going on all afternoon.
Q. What about a family of five, two parents, three small children, would they have been allowed to enter downtown from Shepard Road on Jackson or Sibley?
A. I would have hoped so, yes.
Q. Okay. What about a group of ten, so we're talking maybe two parents, a couple of aunts and uncles, and, say, six kids?
A. Again, it's going to be situationally dependent, who are they with and what are they doing. If it's just this family unit, is that what you're saying?
Q. Yes.
A. Then I would have hoped that they would have.
Q. What about a 21-year-old wearing dark clothes and a hoodie?
A. As an individual?
Q. Yeah.
A. Don't know. Again, it would have been situationally dependent by the NRT team.
Q. Okay.
A. I would like to think they would have. But again, given what had been going on all day and sort of the -- the MO of the anarchists and the protesters, if they were -- if they were -- face was covered, hoodie, mask, things like that, probably not.
Q. Okay. I mean, did you provide some training or criteria to NRT 36 on who would be allowed back into downtown St. Paul and who wouldn't?
A. Not specific. It was common sense.
8

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 9 of 40
(Id. at 50-52.) According to Cmdr. Frazer, however, no persons “would have been allowed to go through [Jackson St.], other than law enforcement.” (Frazer Depo., p. 83.)
In total, there were approximately 30-40 civilians on the sidewalk on the south side of Shepard Rd across from the NRT 36 officers blocking Jackson St. (Shulman Aff., Ex. 4, 00:0000:45.) The officers did not give any orders or directions to the civilians. (First Tindal Aff., Ex. B, 00:30-01:25; Shulman Aff., Ex. 5, 01:25-02:15.) No one was throwing anything at the officers. (First Tindal Aff., Ex. B, 00:30-01:25; Shulman Aff., Ex. 3; Ex. 4, 00:00-00:45; Ex. 5, 01:25-02:15.)
A small group of approximately ten to fifteen civilians then attempted to cross Shepard Rd. toward Jackson St. (First Tindal Aff., Ex. B, 01:25-01:30; Shulman Aff., Ex. 3; Ex. 5, 01:2502:15.) The civilians walked behind two signs because one of the officers had been aiming a rifle at the crowd. (First Tindal Aff., Ex. B, 01:25-01:30.) None of the plaintiffs was part of the small group that attempted to cross the street behind the signs. (6th Tindal Aff., Ex. QQ; 3rd Shulman Aff., Exs. 24-29; 4th Shulman Aff., Exs. 30-30; 5th Shulman Aff., Exs. 40-49; 6th Shulman Aff., Exs. 50-54.)
When the small group behind the sign reached the median of Shepard Rd., Sgt. Henry and other officers in NRT 36 began to throw stinger blast balls at them. (First Tindal Aff., Ex. B, 01:30-01:35; Shulman Aff., Ex. 3; Ex. 4, 00:45-01:15; Ex. 5, 02:19-02:50; Henry Depo., pp. 3738, 109-15.) Stinger blast balls have rubber pellets inside them and are intended to sting or hurt suspects when the devices explode. (Henry Depo., pp. 37-38.) Sgt. Henry’s use of the first stinger blast ball served as an authorization for the other officers to use weapons against the civilians. (Id. at 120.)
9

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 10 of 40
In response to the officers’ use of weapons, the civilians who had attempted to cross Shepard Rd. retreated to the sidewalk. (First Tindal Aff., Ex. B, 01:30-01:45; Shulman Aff., Ex. 3, Ex. 4, 00:45-01:15.) Shepard Rd. remained largely clear of persons on foot, as people on the sidewalk moved west, away from the officers, in response to the officers’ use of weapons. (First Tindal Aff., Ex. B, 01:30-02:15; Shulman Aff., Ex. 3, Ex. 4, 00:45-02:40; Ex. 5, 02:30-02:50.)
Lt. Clark and CART Team 6 arrived at the intersection of Jackson St. and Shepard Rd. as NRT 36 was starting to use force against the civilians. (Clark Depo., pp. 28-33, 95.) Lt. Clark believed the civilians to be “protesters.” (Id. at 41-42.)
As civilians moved west on the sidewalk, NRT 36 and CART Team 6 continued to use smoke, blast balls, and other non-lethal weapons against the crowd. (First Tindal Aff., Ex. B, 01:45-3:30; Shulman Aff., Ex. 3, Ex. 4, 01:49-02:40; Ex. 5, 02:30-03:30; Clark Depo., p. 37.) At no time did anyone throw anything at the officers. (First Tindal Aff., Ex. B, 01:45-3:30; Shulman Aff., Ex. 4, 01:49-02:26; Ex. 5, 02:30-03:30.) Lt. Clark did not hear officers give any dispersal orders. (Clark Depo., p. 75.)
None of the plaintiffs observed law enforcement officers on Shepard Rd. give dispersal orders. (4th Tindal Aff., Exs. V-CC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-OO, RR, SS; 2nd Shulman Aff., Exs. 10-19; 3rd Shulman Aff., Exs. 20-23; Clark Depo., p. 64.) The plaintiffs also did not do anything to disobey or threaten any officers. (4th Tindal Aff., Exs. VCC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-OO, RR, SS; 2nd Shulman Aff., Exs. 1019; 3rd Shulman Aff., Exs. 20-23.) No plaintiff threw anything or saw anyone else throw anything at law enforcement officers on Shepard Rd. (6th Tindal Aff., Ex. QQ; 3rd Shulman Aff., Exs. 24-29; 4th Shulman Aff., Exs. 30-30; 5th Shulman Aff., Exs. 40-49; 6th Shulman Aff., Exs. 50-54.)
10

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 11 of 40
As civilians moved west on Shepard Rd., NRT 36 and CART Team 6 also began walking westbound. (First Tindal Aff., Ex. B, 3:30-11:00; Shulman Aff., Exs. 1, 3, Ex. 4, 03:00-05:56; Ex. 5, 04:10-04:28; Englund Depo., p. 56.) The officers pursued the crowd at a brisk walking pace. (Shulman Aff, Ex. 1.) This had the effect of pushing the crowd to the west, sometimes at a running pace. (First Tindal Aff., Ex. B, 3:30-11:00; Shulman Aff., Ex. 1, Ex. 4, 3:00-05:56; Ex. 5, 04:10-04:28; Clark Depo., pp. 92-93.) Almost all of the crowd was on the sidewalk. (First Tindal Aff., Ex. B, 3:30-11:00; Shulman Aff., Ex. 1, Ex. 4, 04:00-05:56.) The officers were herding so many civilians down Shepard Rd. that the sidewalk was crowded with people. (Shulman Aff., Ex. 4, 04:15-05:56; Henry Depo., p. 132.)
For the few civilians in the roadway, Sgt. Henry was not doing anything to direct them back on to the sidewalk. (Henry Depo., p. 132.) The officers blocked Shepard Rd. with their presence. (First Tindal Aff., Ex. B, 3:30-11:00; Shulman Aff., Ex. 3, Ex. 4, 03:00-05:56.) Officers at both ends of Shepard Rd., however, had blocked traffic in both directions because of this incident. (Frazer Depo., pp. 55-56.) None of the civilians turned around to come back toward the officers. (Clark Depo., pp. 97-98.)
Though the civilians were compliant in continuing to move westbound along Shepard Rd., NRT 36 continued to use non-lethal weapons against them in the form of gas, smoke, pepper spray, and blast balls. (First Tindal Aff., Ex. B, 5:17, 6:17, 9:32; Shulman Aff., Ex. 3, Ex. 4, 04:35-05:35; Englund Depo., p. 58.) Officers even threw smoke or gas canisters directly into the westbound crowd on the sidewalk. (Shulman Aff., Exs. 1, 3, Ex. 4, 04:35-05:35.) There was no provocation or resistance from the crowd to prompt this use of force. (Id.) This forced civilians to walk or run through the gas to continue moving westbound, the direction the officers wanted them to move. (Id.) One officer repeatedly used pepper spray against civilians who were
11

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 12 of 40
walking westbound on the sidewalk. (Shulman Aff., Ex. 4, 04:45-05:05.) Officers arriving to assist with the westbound herding were instructed to “mask up” because of the officers’ use of chemical agents. (Neuberger Depo., pp. 73-74, 88.)
As the Officers continued to walk westbound they filled all of Shepard Rd. with their presence, effectively temporarily blocking traffic. (First Tindal Aff., Ex. B, 3:30-11:00; Shulman Aff., Ex. 6, 01:20-02:00.) The officers’ presence and use of gas in the street caused eastbound vehicles to perform u-turns across the median. (Shulman Aff., Ex. 6, 01:20-02:00.)
The officers were herding hundreds of civilians west on the sidewalk. (First Tindal Aff., Ex. B, 3:30-11:00; Shulman Aff., Exs. 1, 3, Ex. 4, 04:15-04:45.) Sgt. Henry did not believe that all of the civilians being herded were rioters. (Henry Depo., pp. 136-37.) After herding civilians a significant distance down Shepard Rd., the officers stopped. (First Tindal Aff., Ex. B, 11:00; Henry Depo., pp. 141-43.)
Cmdr. Frazer then arrived with a MFF of approximately 76 officers at Shepard Rd. and Jackson St. in response to a distress call from NRT 36. (Frazer Depo., pp. 17, 19; Henry Depo., pp. 141-43.) As Cmdr. Frazer arrived, officers were just concluding using riot control agents against the civilians; none were used after he assumed incident command. (Frazer Depo., pp. 110-11, 114-15.) Cmdr. Frazer believed that the civilians “had some cause or something that they were protesting.” (Id. at 46.) According to Cmdr. Frazer, the civilians “had a lot of signs. They had a lot of banners and things like that that had messages on them.” (Id.)
When Cmdr. Frazer arrived on the scene, he was designated Incident Commander. (Neuberger Depo., pp. 100-01.) This designation gave Cmdr. Frazer authority to make command decisions in the field for all law enforcement units at the scene. (Neuberger Depo., pp. 100-01;
12

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 13 of 40
Frazer Depo., p. 37.) Because of arriving reinforcements, when Cmdr. Frazer arrived on the scene, there were approximately 150-175 officers present. (Frazer Depo., p. 39.)
Cmdr. Frazer orchestrated a plan to “corral” the civilians into park land on the south side of Shepard Rd., near Ontario St. (Frazer Depo., pp. 90-93.) Cmdr. Frazer executed this plan by forming a police line across Shepard Rd. to continue the sweep of civilians westbound and by forming a police line to the west to contain the civilians being pushed westbound. (Id.)
Lt. Clark was responsible for the police line to the west. (Frazer Depo., pp. 90-93, 97; Clark Depo., p. 57.) Lt. Clark created a “blocking force” across Shepard Rd. near Ontario St. to prevent people from moving westbound. (Clark Depo., p. 62; 3rd Tindal Aff., Ex. M.) Lt. Clark did not give a dispersal order to the civilians in the park land to the east of his “blocking line.” (Clark Depo., p. 64.) To the contrary, he took steps to ensure that civilians were kept back from his “blocking line.” (Id. at 69-70.)
Once Cmdr. Frazer had the police lines formed, he intended to have arrested the civilians being corralled. (Frazer Depo., p. 96.) Cmdr. Frazer knew that there were civilians between the two police lines whom he did not believe were part of any law-breaking group. (Id. at 97-98.) Cmdr. Frazer did not give the dispersal warning from the Civil Disturbance Management Plan because officers were not seeking dispersal; they were seeking to make arrests. (Id. at 223.)
More law enforcement officers arrived from the east on Shepard Rd., and the officers herded the civilians on the sidewalk the rest of the way into the park on the south side of Shepard Rd. (Frazer Aff., Ex. D, 09:07-16:00; Shulman Aff., Ex. 6, 07:25-09:34; First Tindal Aff., Ex. B, 16:07-16:43.) During this herding, the crowd was orderly and mostly on the sidewalk. (Frazer Aff., Ex. D, 09:07-16:00; Frazer Depo., pp. 101-02.) Cmdr. Frazer was not concerned about small groups of people being in the street. (Frazer Depo., pp. 104-05.)
13

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 14 of 40
Once the officers had completed herding the civilians into the park, they formed an encirclement around the park, with the river acting as a barrier on the south side. (Frazer Aff., Ex. D, 16:00; Shulman Aff., Ex. 7; Frazer Depo., p. 108.) The encirclement was intended to prevent the civilians within it from leaving. (Neuberger Depo., p. 96.) The officers had surrounded 400 or more persons in the park. (Shulman Aff., Ex. 2; Frazer Aff., Ex. D, 16:0023:45; Neuberger Depo., p. 110; Clark Depo., p. 74.) Once the encirclement was in place and before the arrest order was given, officers did not allow civilians to leave. (Frazer Depo., p. 128.)
c. The Mass Arrest Sr. Cmdr. Neuberger believed it was lawful for officers to detain innocent civilians as part of their process of identifying alleged criminals. (Neuberger Depo., pp. 81-82, 87-88.) Sr. Cmdr. Neuberger also believed that he could arrest innocent persons as part of officer attempts to identify alleged criminals: Q. So under certain circumstances, you believed it lawful to arrest a group of people containing innocent people for the purpose of identifying lawbreakers? A. Yes.
* * * Q… Was it lawful -- did you believe it to be lawful to place under arrest a group of people for the purpose of identifying lawbreakers when you lacked probable cause on some of the people in the group? A. Yes, sir. Q. And was that a belief that you -- that -- well, that's a belief you held on September 1st, 2008? A. Yes, sir.
(Id. at 85-86.)
14

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 15 of 40
For the next approximately nine minutes, the civilians within the encirclement acted peacefully. (Frazer Aff., Ex. D, 16:00-24:53; Shulman Aff., Ex. 2; Frazer Depo., p. 131.) During this period, law enforcement officers did not give any dispersal orders. (Frazer Aff., Ex. D, 16:00-24:53; Shulman Aff., Ex. 2.) To the contrary, Lt. Clark had an officer command the civilians by loudspeaker, “Ladies and Gentlemen, please move back from the line of officers.” (Frazer Aff., Ex. D, 23:00; Clark Depo., pp. 77-78.) Shortly after that, an officer twice commanded the crowd by loudspeaker to “sit down and place your hands on top of your head.” (Frazer Aff., Ex. D, 24:25-24:40.) In his affidavit, Cmdr. Frazer refers to this as the “arrest warning given at 24:39.” Approximately eight minutes after the encirclement was formed, officers moved in closer to the civilians to tighten the encirclement. (Frazer Aff., Ex. D, 23:4524:40.)
Sr. Cmdr. Neuberger made the decision to authorize the mass arrest based on reports he received that there had been a felony assault on police officers. (Neuberger Depo., p. 93.) Sr. Cmdr. Neuberger admitted that he knew there was not probable cause to arrest everyone within the encirclement:
Q. Okay. And I mean, did you know whether all the people being pushed in by the officers had -- had broken the law? A. No. I did not. Q. Okay. Did you know whether you had probable cause on all the people who were being pushed in? A. No. I did not. Q. Okay. So you knew that at least -- well, did you know that some of the people who were going to be arrested, you did not have probable cause on? A. Yes, sir.
15

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 16 of 40
(Id. at 93-94.) Lt. Clark also requested of and received permission from Sr. Cmdr. Neuberger to arrest
all civilians within the encirclement. (Clark Depo., pp. 79-80.) Lt. Clark made this request even though he “wasn't sure who should have been arrested [and] who should not have been.” (Id. at 81.) Lt. Clark was not sure if he had probable cause to arrest everyone in the encirclement. (Id. at 82.)
After the encirclement had been in place nearly nine minutes, an officer announced by loudspeaker to the encircled civilians, “Ladies and Gentlemen, you are now under arrest. Sit down and place your hands on top of your head.” (Frazer Aff., Ex. D, 24:53.) Approximately 400 hundred civilians, including all of the plaintiffs, had been placed under arrest. (Frazer Aff., Ex. D, 16:00-24:53; Neuberger Depo., p. 110; Clark Depo., p. 74; 4th Tindal Aff., Exs. V-CC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-OO, RR, SS; 2nd Shulman Aff., Exs. 10-19; 3rd Shulman Aff., Exs. 20-23.) Cmdr. Frazer made the decision to give the arrest order. (Frazer Depo., p. 128.) The officers did not give any dispersal orders prior to the arrest announcement. (Frazer Aff., Ex. D, 16:00-24:53.) An officer periodically repeated the arrest announcement by loudspeaker. (Frazer Aff., Ex. D.) Sr. Cmdr. Neuberger wanted everyone in the encirclement handcuffed before deciding who would be released and who would be charged. (Neuberger Depo., p. 110.)
Cmdr. Frazer also knew that he had placed under arrest many persons for whom officers did not have probable cause:
Q. How many would you estimate -- how many persons would you estimate were removed who were innocent? A. There were a lot. You know, it says several hundred there. I would say that's probably a better categorization than my 125 today. But I'd say close to that 200 number seems right to me. There were a lot of people. They weren't big groups,
16

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 17 of 40
but there were a lot of people sitting in twos, threes, fours, ones, twos in that area that were guided out in the process. Q. And why did you not remove the people you believed to be innocent from the encirclement before the arrest announcement? A. Because at that point, we did not want to give an opportunity for the people who had already attacked NRT 36 to know that anything was happening other than that they were being arrested. And as you know and as we trained, you give that command that, "You are under arrest," then that closes a window on their ability by statute to flee or fight against us or deal with us. And certainly, everyone in there was not free to walk out on their own, even the people that we walked out who weren't involved. So "arrest" versus "detain," detain is probably a more accurate word for the couple hundred people that were walked out. Q. Well, when you're given -- the arrest order that was given by loudspeaker -A. Uh-huh. Q. -- that was intended to be heard by everybody in the encirclement? A. Without a doubt. Q. Okay. And did you -- and before that order was given, you knew that you had approximately 200 people in the area within the encirclement who you did not have probable cause on? A. Correct.
(Frazer Depo., pp. 134-36.) Out of the approximately 400 civilians placed under arrest, only approximately 160
arrestees were booked and taken into custody. (Frazer Depo., p. 137.) Cmdr. Frazer was responsible for deciding who would be booked and who would be released. (Id. at 139.) All persons booked were then taken into custody per the St. Paul Police Department’s policy created for the RNC. (Id. at 146-47.)
Shortly after the first arrest announcement, arrest teams began entering the encirclement to handcuff and remove arrestees for booking. (Shulman Aff., Ex. 2, 6:53; Frazer Aff., Ex. D,
17

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 18 of 40
24:55-end.) The process of handcuffing and removing arrestees was slow. (Frazer Aff., Ex. D, 24:55-end.) The arrestees acted peacefully and compliantly during the handcuffing and removal process. (Frazer Aff., Exs. C, E.) BCA video of the arrest site makes clear that most of the arrestees were not present at the intersection of Jackson St. and Shepard Rd. for the officers’ initial use of force. (Frazer Aff., Ex. E.) It took at least two hours to complete the process of clearing the park of the arrestees. (Frazer Aff., Ex. I.)
Neither the F.B.I., Secret Service, nor Homeland Security had any input into how the events on Shepard Rd. were handled. (Frazer Depo., pp. 187-88.)
d. The Plaintiffs The plaintiffs in this case were all corralled and arrested in the Shepard Rd. encirclement despite being present on Shepard Rd. for lawful purposes. (4th Tindal Aff., Exs. V-CC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-LL & SS; 2nd Shulman Aff., Exs. 10-19; 3rd Shulman Aff., Exs. 20-23.) Plaintiffs Bernini, Rechitsky, and Phillips were present on Shepard Rd. as legal observers. (2nd Shulman Aff., Ex. 10; 5th Tindal Aff., Exs. DD, EE.) Plaintiffs Cecil, Drew, Kahl, Hayes, Jackson, and Westlund were present on Shepard Rd. as volunteer medics. (2nd Shulman Aff., Exs. 11, 15; 4th Tindal Aff., Exs. X, Z; 5th Tindal Aff., Ex. II; 3rd Shulman Aff., Ex. 23.) Plaintiffs Neef, Lanctot, Morse, and Rochfort were present on Shepard Rd. as members of the media. (2nd Shulman Aff., Ex. 19; 4th Tindal Aff., Ex. BB; 3rd Shulman Aff., Ex. 20, 21.) Plaintiffs Hagy, Hayden, Solem, Ward, and Whitmore were present on Shepard Rd. because they were attempting to get to the concert on Harriet Island. (4th Tindal Aff., Ex. S, p. 9; 2nd Shulman Aff., Ex. 14; 5th Tindal Aff., Ex. GG; 6th Tindal Aff., Exs. SS, LL.) Plaintiff Mainstream was present on Shepard Rd. to find a way to his job as a security guard. (4th Tindal Aff., Ex. AA.) Plaintiffs Byrnes, Cohen, Kellan Dubbels, Kristofer Dubbels, Exum, Hundt, Johnson, Larson,
18

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 19 of 40
Ogle, Segner, Swift, Temperante, and Wilkinson were present on Shepard Rd. to protest or to observe the activities in downtown St. Paul that afternoon. (4th Tindal Aff., Exs. V, W, Y, CC; 2nd Shulman Aff., Exs. 12, 16, 17, 18; 6th Tindal Aff., Ex. JJ, KK; 5th Tindal Aff., Ex. FF, HH; 3rd Shulman Aff., Ex. 22.)
Plaintiffs Bernini, Cecil, Drew, Kellan Dubbels, Kristofer Dubbels, Exum, Hayden, Hayes, Jackson, Johnson, Larson, Mainstream, Morse, Neef, Phillips, Rechitsky, Rochfort, Segner, Temperante, and Westlund were corralled from within sight of the intersection of Jackson St. and Shepard Rd. (2nd Shulman Aff., Exs. 10-12, 14-18; 4th Tindal Aff., Ex. X, Z, CC, AA, BB; 3rd Shulman Aff., Exs. 20-23; 5th Tindal Aff., Exs. DD, EE, FF.) Plaintiffs Byrnes, Cohen, Hagy, Hundt, Kahl, Lanctot, Ogle, Solem, Swift, Ward, Whitmore, and Wilkinson were well to the west of Jackson St. and Shepard Rd. and first encountered the police lines in the park or to the west of Jackson St. and Shepard Rd. (4th Tindal Aff., Exs. V, W, S, Y; 5th Tindal Aff., Exs. HH, II, GG; 2nd Shulman Aff., Ex. 19; 6th Tindal Aff., Exs. JJ, KK, SS, LL.)
Plaintiffs Bernini, Cecil, Cohen, Drew, Kellan Dubbels, Kristofer Dubbels, Exum, Hayes, Jackson, Johnson, Kahl, Morse, Ogle, Rochfort, Segner, Solem, Temperante, Westlund, Whitmore, and Wilkinson were injured by pepper spray, tear gas, or other police weapons. (2nd Shulman Aff., Exs. 10, 11, 12, 15, 16, 17, 18; 4th Tindal Aff., Exs. W, X, Z, BB: 5th Tindal Aff., Exs. HH, II, FF, GG; 6th Tindal Aff., Ex. JJ, LL; 3rd Shulman Aff., Exs. 21, 22, 23.) Plaintiffs Kahl and Westlund sustained injuries from the over-tightening of handcuffs. (5th Tindal Aff., Ex. II; 3rd Shulman Aff., Ex. 23.) All of the plaintiffs suffered emotional distress as the result of the incident. (4th Tindal Aff., Exs. V-CC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-LL & SS; 2nd Shulman Aff., Exs. 10-19; 3rd Shulman Aff., Exs. 20-23.)
19

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 20 of 40
Plaintiffs Cecil, Cohen, Drew, Kellan Dubbels, Kristofer Dubbels, Exum, Hagy, Hayden, Hayes, Jackson, Johnson, Kahl, Lanctot, Larson, Mainstream, Morse, Neef, Rochfort, Segner, Solem, Swift, Temperante, Ward, Westlund, Whitmore, and Wilkinson were charged with crimes and taken into custody for up to 72 hours. (4th Tindal Aff., Exs. V-CC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-LL & SS; 2nd Shulman Aff., Exs. 10-19; 3rd Shulman Aff., Exs. 20-23.) The remaining plaintiffs were released from the encirclement without criminal charges. (2nd Shulman Aff., Ex. 10; 4th Tindal Aff., Exs. V, Y; 6th Tindal Aff., Ex. JJ; 5th Tindal Aff., Exs. DD, EE) All charges against the plaintiffs were dismissed. (4th Tindal Aff., Exs. VCC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-LL & SS; 2nd Shulman Aff., Exs. 10-19; 3rd Shulman Aff., Exs. 20-23.)
III. ARGUMENT a. Standard Summary judgment is only to be granted when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). On such a motion, the court must view the facts in the light most favorable to the nonmoving party and give that party all reasonable inferences that can be drawn from them. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing summary judgment is entitled to “the benefit of all reasonable inferences” to be drawn from the facts presented. Kukla v. Hulm, 310 F.3d 1046, 1047-48 (8th Cir. 2002). Though the determination of whether an official is entitled to qualified immunity is a question of law, when there is a genuine dispute concerning the predicate facts material to the qualified immunity issue, summary judgment is not appropriate. Turney v. Waterbury, 375 F.3d
20

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 21 of 40
756, 759-60 (8th Cir. 2004). Here, the evidentiary record is replete with genuine issues of material fact concerning qualified immunity, and defendants’ motion should be denied.
b. Defendants Are Not Entitled to Qualified Immunity To avoid summary judgment based on qualified immunity, plaintiffs must establish (1) that the facts, taken in the light most favorable to them, “show that the officer’s conduct violated a constitutional right” and (2) that the right was “clearly established.” Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005) (citations omitted). “A right is clearly established when that right is so clear that a reasonable officer would understand that what he is doing violates that right.” Craighead, 399 F.3d at 962 (citation omitted). 1. Defendants Violated Plaintiffs’ Right to Be Free from Arrest without Probable
Cause “It is firmly established that, to comport with the Fourth Amendment, a warrantless search or seizure must be predicated on particularized probable cause.” Barham v. Ramsey, 434 F.3d 565, 573 (D.C. Cir. 2006). “Probable cause to make an arrest requires a showing that the police had ‘enough information to ‘warrant a man of reasonable caution in the belief’ that a crime has been committed and that the person arrested has committed it.’” Id. at 572. (citations omitted). “[A] search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another…” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). It is a violation of the Fourth Amendment for officers to conduct a mass arrest when they arguably have probable cause to believe that only some of the arrestees committed a crime. Barham, 434 F.3d at 573. Officers are not permitted to impute probable cause to the innocent based on the random criminal act of others:
21

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 22 of 40
Throughout this litigation, however, appellants have tried to excavate probable cause not from the official reason for arrest, but from the scattered acts of lawlessness that Newsham and others had witnessed that morning. While Newsham is correct that an arrest may pass Fourth Amendment muster even if the only objectively discernible probable cause related to conduct far removed from the offense charged by the arresting officer, [citation omitted] he has failed to show any objective basis for arresting the entire mass of people who happened to inhabit the park. Quite simply, Newsham had no basis for suspecting that all of the occupants of Pershing Park were then breaking the law or that they had broken the law before entering the park. Vague allegations that “demonstrators” committed offenses will not compensate for this shortcoming.
* * *
Traffic offenses and scattered acts of vandalism by unidentified individuals in the streets, however, could not have incriminated all of the individuals who happened to occupy the park when Newsham ordered the arrest. Even to the extent that Newsham asserts that some “demonstrators” were unlawfully assembled in the park, he has made no effort to ascribe misdeeds to the specific individuals arrested. Nowhere have appellants suggested that the particular individuals observed committing violations were the same people arrested; instead, they refer generically to what “demonstrators” were seen doing. This is the upshot of making arrests based on the plaintiffs' occupancy of a randomly selected zone, rather than participation in unlawful behavior. While we have no reason to doubt that unlawful activity might have occurred in the course of the protest-with some individuals engaging in disorderly conduct, for example-the simple, dispositive fact here is that appellants have proffered no facts capable of supporting the proposition that Newsham had reasonable, particularized grounds to believe every one of the 386 people arrested was observed committing a crime.
Barham, 434 F.3d at 573-74.
Moreover, police efforts to quell unruly demonstrations do not limit civilian Fourth
Amendment rights:
Our case law addressing large-scale demonstration scenarios does not suspend-or even qualify-the normal operation of the Fourth Amendment's probable cause requirements. Rather, this case law merely amplifies one essential premise that has a bearing on the case at hand: when compelling circumstances are present, the police may be justified in detaining an undifferentiated crowd of protestors, but only after providing a lawful order to disperse followed by a reasonable opportunity to comply with that order.
Barham, 434 F.3d at 575.
22

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 23 of 40
Here, defendants contend that they had probable cause to arrest plaintiffs because (1) “officers came under siege from a barrage of rocks, urine, feces and other makeshift weapons thrown by the assembled crowd,” (2) “the crowd was working in concert”; and (3) “at least eight warnings were given to the crowd explaining they would be arrested if they did not disperse.” (Defts’ Memo., p. 21.) Plaintiffs have brought forth ample evidence showing that defendants’ claimed bases for the arrests are false and that defendants have admitted arresting as many as 200 civilians without probable cause. Because of these genuine disputes concerning the predicate facts material to the qualified immunity issue, summary judgment is not appropriate. Turney, 375 F.3d at 759-60.
To begin, plaintiffs’ answers to interrogatories and requests for admissions flatly refute defendants’ contentions that there was an assault on the police and that dispersal orders were given. None of the plaintiffs observed law enforcement officers on Shepard Rd. give dispersal orders. (4th Tindal Aff., Exs. V-CC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-OO, RR, SS; 2nd Shulman Aff., Exs. 10-19; 3rd Shulman Aff., Exs. 20-23; Clark Depo., p. 64.) The plaintiffs also did not do anything to disobey or threaten any officers. (4th Tindal Aff., Exs. VCC; 5th Tindal Aff., Exs. DD-II; 6th Tindal Aff., Exs. JJ-OO, RR, SS; 2nd Shulman Aff., Exs. 1019; 3rd Shulman Aff., Exs. 20-23.) No plaintiff threw anything or saw anyone else throw anything at law enforcement officers on Shepard Rd. (6th Tindal Aff., Ex. QQ; 3rd Shulman Aff., Exs. 24-29; 4th Shulman Aff., Exs. 30-30; 5th Shulman Aff., Exs. 40-49; 6th Shulman Aff., Exs. 50-54.) Finally, none of the plaintiffs was part of the small group that attempted to cross the street behind the signs. (6th Tindal Aff., Ex. QQ; 3rd Shulman Aff., Exs. 24-29; 4th Shulman Aff., Exs. 30-30; 5th Shulman Aff., Exs. 40-49; 6th Shulman Aff., Exs. 50-54.) Because the court must view the facts in the light most favorable to the nonmoving party, here plaintiffs, this evidence
23

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 24 of 40
alone is sufficient to establish that there was no probable cause to support plaintiffs’ arrests. Matsushita Elec. Indus. Co., 475 U.S. at 587.
In addition, there is video footage that shows that the attack on the officers never happened and that no dispersal warnings were ever given. The video shows that the so-called protester group was not interfering with traffic or acting in an unruly manner as it walked eastbound down Shepard Rd. towards the intersection with Jackson St. (Shulman Aff., Ex. 5, 00:00-00:56.) Next, when the group reached Jackson St. and Shepard Road, the video shows them waiting on the south side of Shepard Rd. (First Tindal Aff., Ex. B, 00:30-01:25; Shulman Aff., Ex. 4, 00:00-00:45.) Contrary to defendants’ claims of a 400-person mob, there appeared to be approximately 30-40 civilians on the sidewalk on the south side of Shepard Rd across from the NRT 36 officers. (Shulman Aff., Ex. 4, 00:00-00:45.) Next, the video shows that the officers did not give any orders or directions to the civilians, and no one was throwing anything at the officers. (First Tindal Aff., Ex. B, 00:30-01:25; Shulman Aff., Ex. 3; Ex. 4, 00:00-00:45; Ex. 5, 01:25-02:15.)
Then transpires the only action that could have been remotely threatening to the officers: a small group of approximately ten to fifteen civilians huddled behind two signs and tried to cross Shepard Rd. toward the officers. (First Tindal Aff., Ex. B, 01:25-01:30; Shulman Aff., Ex. 3; Ex. 5, 01:25-02:15.) The video shows that when the small group reached the median, without warning, the officers began to attack the civilians behind the signs and others with stinger blast balls, smoke, and other non-lethal weapons. (First Tindal Aff., Ex. B, 01:30-3:30; Shulman Aff., Ex. 3; Ex. 4, 00:45-02:40; Ex. 5, 02:19-03:30.) The video footage shows that at no time did any civilian throw anything at the officers. (First Tindal Aff., Ex. B, 01:45-3:30; Shulman Aff., Ex. 4, 01:49-02:26; Ex. 5, 02:30-03:30.) To the contrary, the officers’ use of force produces a near
24

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 25 of 40
constant retreat by the civilians. (First Tindal Aff., Ex. B, 01:30-02:45; Shulman Aff., Ex. 3, Ex. 4, 00:45-02:40; Ex. 5, 02:30-02:50.) On these facts, defendants cannot make an arguable showing of “particularized probable cause” for each plaintiff, and plaintiffs have established a violation of a constitutional right. Barham, 434 F.3d at 573.
Recognizing their lack of evidence of any wrongdoing on Shepard Rd. by the civilians subjected to the mass arrest, defendants “have tried to excavate probable cause not from the official reason for arrest, but from the scattered acts of lawlessness” that occurred at other locations and times within downtown St. Paul. Barham, 434 F.3d at 573. Such evidence does not support probable cause because it fails to “ascribe misdeeds to the specific individuals arrested.” Id.
For example, the video attached as Exhibit B to Cmdr. Frazer’s affidavit does not show events on Shepard Road. Cmdr. Frazer states at Paragraph 6 of his affidavit, “At 6:41 p.m., the video shows some of the items used and w[o]rn by protestors at Jackson including gas masks.” Cmdr. Frazer neglects to specify, however, that the items videotaped were from an incident at Jackson St. and 7th – not from Jackson St. and Shepard Rd. Similarly, Exhibit 1 to the Affidavit of Jason Anderson is a 54-minute video that purports to set out all of the lawlessness in downtown St. Paul on September 1. Of those 54 minutes of video, however, only approximately the last two minutes depict events on Shepard Rd. The court in Barham rejected the use of “scattered acts of lawlessness” to build a case for probable cause, and this Court should too.
Barham is remarkably similar to the instant case. In Barham¸ the plaintiffs were arrested in a mass arrest under the following circumstances:
Plaintiffs… were detained when police officers, following the order of Assistant Chief Peter Newsham, cordoned off the perimeter of Pershing Park in northwest Washington, D.C. and arrested everyone there. Newsham purported to have witnessed widespread infractions that morning by “demonstrators,” including
25

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 26 of 40
traffic violations and scattered acts of vandalism. After observing activities in Pershing Park for about an hour-during which pedestrian traffic flowed freely in and out of the park-Newsham issued the arrest order… Newsham and Ramsey concede that the mass arrest was executed with no prior warning to the occupants of the park to disperse and no warning to them that arrest was imminent. In the end, 386 people were arrested.
434 F.3d at 568. In rejecting the claim of qualified immunity by Newsham, the D.C. Circuit held,
Undisputed evidence reveals that Newsham arrested an undifferentiated mass of people on the basis of crimes committed by a handful of individuals who were never identified. Because nothing in the record suggests that Newsham had particularized probable cause to arrest each of the 386 persons caught in the police sweep, [citation omitted], his claim to qualified immunity raises no genuine issue as to any material fact [citation omitted].
Id. Similarly, defendants here ordered the arrest of “an undifferentiated mass of people,” and thus did not have probable cause to do so.
Most telling on the question of whether the arrestees were “an undifferentiated mass of people” is the testimony of the defendants themselves. Sr. Cmdr. Neuberger had an “arrest first, identify suspects second” approach to the mass arrest:
Q. Okay. And I mean, did you know whether all the people being pushed in by the officers had -- had broken the law? A. No. I did not. Q. Okay. Did you know whether you had probable cause on all the people who were being pushed in? A. No. I did not. Q. Okay. So you knew that at least -- well, did you know that some of the people who were going to be arrested, you did not have probable cause on? A. Yes, sir.
26

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 27 of 40
(Neuberger Depo., pp. 93-94.) Cmdr. Frazer shared Sr. Cmdr. Neuberger’s approach: Q. How many would you estimate -- how many persons would you estimate were removed who were innocent? A. There were a lot. You know, it says several hundred there. I would say that's probably a better categorization than my 125 today. But I'd say close to that 200 number seems right to me. There were a lot of people… * * * Q. Okay. And did you -- and before that order was given, you knew that you had approximately 200 people in the area within the encirclement who you did not have probable cause on? A. Correct.
(Frazer Depo., pp. 134-36.) Under Barham, this failure to differentiate between actual criminal suspects and innocent civilians defeats defendants’ claim to even arguable probable cause.
Defendants attempt to skirt the probable cause requirement by relying on Carr v. District of Columbia, 587 F.3d 401, 408 (D.C. Cir. 2009). Carr stands for the unremarkable proposition that where “the crowd acted unlawfully as a unit,” there is probable cause to arrest all members of the unit. 587 F.3d at 408. As discussed above, however, the defendants themselves have admitted that they arrested civilians whom they knew to be separate from the allegedly unlawful “unit.” Carr thus does not support the defendants’ contention here.
In addition, the video footage submitted by plaintiffs on this motion shows that at most 10-15 civilians took an action that could even be construed to be threatening towards the police, i.e., walking towards the police with the signs. When this occurred, the video footage shows that there were only approximately 30-40 persons at the intersection. Yet defendants ordered the arrest of approximately 400 civilians. Thus, there were over 350 civilians arrested who were not even present for the attempted crossing of the street by a group of 10-15 civilians. On these
27

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 28 of 40
facts, defendants cannot come close to meeting the “act[ing] unlawfully as a unit” standard of Carr.
The individual circumstances of each plaintiff also make clear that they and many others were not “act[ing] unlawfully as a unit.” The plaintiffs were pursuing activities at the time of the incident as diverse as trying to get to the concert on Harriet Island, acting as members of the media, volunteer medics, and legal observers, and walking with protesters. Moreover, they were all swept up in the encirclement at different points on Shepard Rd.: some were near the intersection of Jackson St. and Shepard Rd., some were at points in between the park and Jackson St., while others were encircled in the park itself. On the facts before this Court, which must be construed in the light most favorable to plaintiffs, defendants cannot meet the “act[ing] unlawfully as a unit” standard of Carr, and their motion should be denied. Matsushita Elec. Indus. Co., 475 U.S. at 587.
It is noteworthy that Carr reverses a grant of summary judgment to the plaintiffs and remanded the case for trial; the court did not grant summary judgment to the defendant officers. As here, the officers and the arrestees presented competing views of the incident. In reversing the summary judgment in plaintiffs’ favor, the Court noted that these competing views of the evidence constitute an “issue for the jury.” 587 F.3d at 409. The record before this Court also presents “genuine issue[s of]… material fact” to be resolved by the jury. Fed. R. Civ. P. 56(c).
Finally, there are other holes in defendants’ claimed evidence. For example, at Paragraph 11 of his affidavit, Cmdr. Frazer states that the photographs in Exhibit G to his affidavit depict the evidence remaining at Jackson St. and Shepard Rd. and “include bags and remnants of fecal matter, homemade bombs/fireworks, large concrete rocks, wrist rockets and ball bearings.” The photographs in fact show very little. There is a single broken plastic bag with what appears to be
28

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 29 of 40
some type of animal feces – not bags, as Cmdr. Frazer claims. There is a photo of some type of brown stain on the sidewalk, but it is not near the single plastic bag. There is a single photo of three rocks on the ground: two small rocks and one larger rock. There is some type of equipment photographed, but it is difficult to determine what it is or where it was photographed, as Cmdr. Frazer did not take the photos himself. Finally, there is a single plastic bag containing some ball bearings. This paltry evidence does not support defendants’ account of an all-out assault on them.
In addition, at Paragraph 3 of her First Affidavit, Ms. Tindal states that at 2:22:19, Exhibit B to her affidavit shows “a smoke agent [ ] thrown very close to officers.” The video attached as Exhibit B does show a puff of smoke at that point, but it appears to come from the smoke agents used by officers against the crowd. By that point on the video, the officers had already begun using smoke against the crowd and were moving the crowd to the west. Also, Sgt. Henry described the alleged firework smoke as “black gun-powdery smoke.” (Henry Depo., p. 129.) Exhibit B, however, shows white smoke. Ms. Tindal also states in Paragraph 3 of her First Affidavit that Exhibit B shows the “number of protestors far outnumbered the number of officers.” Exhibit B shows, however, that the persons on the sidewalk were compliant with the officers in that they were moving west along Shepard Rd. in response to the weapons used by the officers and the movement of the officers. In sum, plaintiffs have presented this Court with ample evidence to create genuine issues of material fact on whether there was arguable probable cause for the mass arrest.
2. The Right to Be Free from Arrest without Probable Cause Was Clearly Established
“A right is clearly established when that right is so clear that a reasonable officer would understand that what he is doing violates that right.” Craighead, 399 F.3d at 962 (citation
29

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 30 of 40
omitted). Here, the decision-makers for the mass arrest, Sr. Cmdr. Neuberger, Cmdr. Frazer, and Lt. Clark, were all seasoned, highly-trained law enforcement officers who knew that they had to have probable cause to arrest a suspect. Moreover, the decision to make the mass arrest was taken after careful deliberation and the movement of officer lines to encircle the arrestees. The right to be free from arrest without probable cause under these conditions was thus “clearly established,” and defendants’ motion should be denied.
Particularly instructive on this point is Beal v. City of Chicago, 2007 WL 1029364 (N.D.Ill. March 30, 2007). In Beal, Chicago police officers arrested approximately 500 protesters for allegedly disobeying police orders and obstructing traffic. In conducting the qualified immunity analysis, the court held,
Thus, probable cause for arrest existed if a marcher engaged in violent or obstructive conduct or if a marcher refused to obey a lawful order to disperse after fair notice and an opportunity to comply. Absent such circumstances, no probable cause existed and Plaintiffs had a clearly established right to be free from arrest.
Beal, 2007 WL 1029364, p. 5. With respect to innocent civilians present, the court further held, “[a]ssuming that certain marchers committed violent or obstructive acts, the CPD nevertheless must have given other peaceful marchers a lawful order to disperse prior to arresting them.”
Beal is entirely consistent with defendants’ training and planning for the RNC. Absent exigent circumstances, defendants were instructed that they were to issue a formal warning at regular intervals prior to making a mass arrest. (Neuberger Depo., pp. 145-46; 6th Shulman Aff., Ex. 58.) Furthermore, in their training, the defendants were instructed on constitutional principles relevant to making arrests, the use of force, and the First Amendment. (6th Shulman Aff., Ex. 55) The training also discussed the First and Fourth Amendments in the context of civil disorder. (6th Shulman Aff., Ex. 57.) Finally, defendants studied how other cities handled civil
30

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 31 of 40
disturbances where mass arrests were made. (6th Shulman Aff., Ex. 56.) After all of this training,
defendants understood that they had to have probable cause to make an arrest and that dispersal
warnings were required in the event law enforcement determined that an assembly was in
violation of the law. (Neuberger Depo., p. 12; Frazer Depo., pp. 10-11, 230; Clark Depo., pp. 15-
16.) Accordingly, “a reasonable officer would understand” that arresting hundreds of civilians
for the purpose of apprehending a handful of alleged suspects violates the Fourth Amendment
prohibition against arrests without probable cause. Craighead, 399 F.3d at 962 (citation omitted).
3. Defendants Have Violated Plaintiffs’ First Amendment Rights
Though there is virtually complete overlap between the two claims, with respect to
plaintiffs’ claim that their First Amendment rights were violated by the mass arrest,
[t]he Constitution mandates that access to the streets, sidewalks, parks and other similar public places for the purpose of exercising First Amendment rights cannot be denied broadly and absolutely. [citation omitted] Restrictions on the time and place of demonstrations and the conduct of demonstrators of course must not be used as a subterfuge for the suffocation of speech. It is axiomatic however that the police may, in conformance with the First Amendment, impose reasonable restraints upon demonstrations to assure that they be peaceful and not obstructive.[citation omitted] And by the same token the First Amendment permits the police to contain or disperse demonstrations that have become violent or obstructive.
Washington Mobilization Committee v. Cullinane, 566 F.2d 107, 119 (D.C.Cir. 1977) (footnote
omitted). More specifically:
Officers are charged with the knowledge that each marcher had a right to exercise his First Amendment rights, free from arrest, unless the marcher engaged in violent or obstructive conduct or refused to obey a lawful order to disperse after fair notice was given to him and he was given an opportunity to comply with that order. Thus, absent a reasonable belief that such circumstances existed, the Officers had a duty to refuse to arrest the marchers or to intervene and prevent the arrests. The law requires that an Officer cannot simply assume that because he is given an order to arrest that probable cause must have existed.
31

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 32 of 40

Beal, 2007 WL 1029364. Here, defendants denied plaintiffs access to the sidewalks and parks of

St. Paul without valid justification all on account of their perception of them as “protesters.”

Defendants’ conduct thus constitutes “suffocation of speech,” and plaintiffs’ have established a

violation of their First Amendment rights.

Sr. Cmdr. Neuberger decided to clear downtown of all groups on foot because he had

declared the entire downtown to be a crime scene. It is clear that by excluding all groups on

foot, he meant protester groups, whether law-abiding or not:

Q. What about individuals who were on foot about whom you did not have any information that they were violent?

A. It would depend on the location. But in general, I would -- if it was a large group, my guess would be that they would have been, you know, moved out of downtown also.

Q. Well, you said your guess. You know for a fact that at least from Shepard Road, no groups were allowed to walk back into downtown after about 4 p.m. on the 1st. Right?

A. Correct.

* * *

Q. Are you saying that there were no law-abiding citizens on Shepard Road on the afternoon of September 1st who sought to get back into downtown by either Jackson or Shepard?

A. I'm not saying that.

Q. Or Jackson or Sibley? Sorry.

A. No. I'm not saying that, that there -- there were no law-abiding -- or that -- if I understand your question, I'm not saying everybody on Shepard Road was a criminal.

* * *

Q. Well, would you agree that you kept out of downtown St. Paul people who were law-abiding on the afternoon of September 1st?

32

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 33 of 40
A. Potentially, yes. There was a period of time that we established a police cordon, like we would do a crime scene, and till we could figure out who was what. Q. And were you troubled at all about keeping out people who were law-abiding? A. Well, at that point, we didn't know who was and who wasn't. Q. So it was keep people out first, decide who was law-abiding second? A. Establish the law enforcement presence and control, yeah. Reestablish a -- a presence, you know, to -- to make sure that the folks that were there were, in fact, law-abiding. Because it was -- leading up to it, again, as we said, it was out of -- I said it was out of control. Q. Was all of downtown a crime scene on the afternoon of September 1st, 2008? A. In a broad sense, yes.
(Neuberger Depo., pp. 44-47.) Sr. Cmdr. Neuberger elaborated on this clearing of downtown by admitting that
individuals or very small groups, i.e., ones that could not be considered protest groups, were allowed entrance into downtown:
Q. Once -- well, once at -- once NRT 36 was at Jackson and Sibley, could individuals have walked -A. Yes. Q. -- past them up Sibley and Jackson? A. Yes. Yes. Q. Okay. Did you make that clear to NRT 36? A. As far as like a specific command, no. Q. Okay. What -- on what do you base your statement that individuals could have walked past NRT 36 on Jackson or Sibley towards downtown?
33

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 34 of 40
A. That -- well, we had been operating for most of the afternoon under that premise, that if there was one or two or three or four and -- and they didn't outwardly appear to be causing any problems, they had free reign of downtown. Q. Okay. A. Had been going on all afternoon. Q. What about a family of five, two parents, three small children, would they have been allowed to enter downtown from Shepard Road on Jackson or Sibley? A. I would have hoped so, yes. Q. Okay. What about a group of ten, so we're talking maybe two parents, a couple of aunts and uncles, and, say, six kids? A. Again, it's going to be situationally dependent, who are they with and what are they doing. If it's just this family unit, is that what you're saying? Q. Yes. A. Then I would have hoped that they would have. Q. What about a 21-year-old wearing dark clothes and a hoodie? A. As an individual? Q. Yeah. A. Don't know. Again, it would have been situationally dependent by the NRT team. Q. Okay. A. I would like to think they would have. But again, given what had been going on all day and sort of the -- the MO of the anarchists and the protesters, if they were -- if they were -- face was covered, hoodie, mask, things like that, probably not. Q. Okay. I mean, did you provide some training or criteria to NRT 36 on who would be allowed back into downtown St. Paul and who wouldn't? A. Not specific. It was common sense.
(Neuberger Depo., pp. 50-52.)
34

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 35 of 40
Though the civilians on Shepard Rd., including plaintiffs, were law-abiding, they had no chance of entering downtown because defendants believed them to be “protesters.” (Clark Depo., pp. 41-42; Tindal Aff., Exs. K, L, M, N.) This barring of plaintiffs from downtown and their resulting arrest was not a reasonable restraint on speech, when other individuals who did not appear to be “protesters” were allowed access into the downtown area. Moreover, many of the plaintiffs were in fact engaging in classic First Amendment conduct, from legal observing to acting as a member of the media to following a small protest group. In addition, defendants had information that only a “small minority” of the thousands of protesters in St. Paul was responsible for the alleged criminal acts. (3rd Tindal Aff., Ex. K.) Under Washington Mobilization Committee, defendants’ singling out of “protesters” under these circumstances is violative of the First Amendment, and their motion must thus be denied.
Finally, there can be little doubt that plaintiffs’ First Amendment right to circulate peacefully in a downtown area was “clearly established” at the time of these events. Craighead, 399 F.3d at 962 (citation omitted).
4. Defendants Have Violated Plaintiffs’ Right to Be Free from the Use of Excessive Force
Plaintiffs have also brought claims of excessive force. In determining whether defendants’ used excessive force against plaintiffs, this Court must apply the “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). “Force is excessive when an officer’s actions are not objectively reasonable in light of the facts and circumstances confronting him.” Kukla, 310 F.3d at 1050 (citation omitted). A reviewing court is not to take into account the officer’s “underlying intent or motivation.” Graham, 490 U.S. at 397. In making the reasonableness determination, courts consider the totality of the circumstances, including the severity of the crime, whether the suspect posed a threat to the officer’s safety, and
35

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 36 of 40
whether the suspect resisted arrest. Adewale v. Whalen, 21 F.Supp.2d 1006, 1014 (D.Minn. 1998). Here, defendants used force against plaintiffs in a gratuitous, unnecessary way, and their use of force was therefore excessive.
Sgt. Henry’s authorization of the use of weapons by NRT 36 against the civilians on the sidewalk, including plaintiffs, was not “objectively reasonable” because the civilians were complying with the movement of the officers and posed no threat to the officers. The video makes clear that the civilians moved west on the sidewalk, away from the officers, in response to the officers’ use of stinger blast balls against the civilians who tried to cross the road. (First Tindal Aff., Ex. B, 01:30-02:15; Shulman Aff., Ex. 3, Ex. 4, 00:45-02:40; Ex. 5, 02:30-02:50.) Notwithstanding that movement westward, NRT 36 and CART Team 6 continued to use smoke, blast balls, and other non-lethal weapons against the crowd. (First Tindal Aff., Ex. B; Shulman Aff., Ex. 3, Ex. 4, 01:49-05:35; Ex. 5, 02:30-03:30.) At no time did anyone throw anything at the officers. (First Tindal Aff., Ex. B, 01:45-3:30; Shulman Aff., Ex. 4, 01:49-02:26; Ex. 5, 02:30-03:30.) There was thus no justification for the continued use of force against the civilians.
Most disturbing was the officers’ decision to throw smoke or gas canisters directly into the westbound crowd on the sidewalk. (Shulman Aff., Exs. 1, 3, Ex. 4, 04:35-05:35.) There was no provocation or resistance from the crowd to prompt this use of force. (Shulman Aff., Exs. 1, 3, Ex. 4, 04:35-05:35.) This forced civilians to walk or run through the gas to continue moving westbound, the direction the officers wanted them to move. (Id.) Also, one officer repeatedly used pepper spray against civilians who were walking westbound on the sidewalk. (Shulman Aff., Ex. 4, 04:45-05:05.) Because there was no threat or resistance from the civilians, the officers’ use of force was not “objectively reasonable,” and plaintiffs have established that their
36

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 37 of 40
Fourth Amendment right to be free from the use of excessive force was violated. Kukla, 310 F.3d at 1050 (citation omitted).
Defendants argue that plaintiffs cannot maintain their excessive force claims because the officers’ use of force was de minimus. (Defts’ Memo., p. 26.) Plaintiffs’ counsel is not aware of any cases holding that the level of force used by officers in this case is de minimus, and defendants have not cited any. The video footage of the gas, smoke, pepper spray, and stinger blast balls used by the officers show that a very high level of force was used. Moreover, the effects of the gas and pepper spray were painful for those plaintiffs exposed to it. Essentially, defendants argue that the Fourth Amendment does not apply to the level of force used against plaintiffs in this case. No court has ever adopted such a rule of law, and this Court should not be the first.
5. The Right to Be Free from the Use of Excessive Force Is Clearly Established Sgt. Henry, who authorized the use of weapons by NRT 36 against the civilians, understood that he was only allowed to use objectively reasonable levels of force against suspects. (2nd Tindal Aff., Ex. G, Henry Depo., p. 11.) Moreover, Sgt. Henry received extensive training about the Fourth Amendment and its prohibition against the use of excessive force. On September 1, 2008, therefore, Sgt. Henry clearly would have known that it was unlawful to gas and pepper spray compliant civilians, and plaintiffs have satisfied the second prong of the qualified immunity analysis. Craighead, 399 F.3d at 962 (“A right is clearly established when that right is so clear that a reasonable officer would understand that what he is doing violates that right.”) c. Neuberger Was a Decision-maker with Final Authority for the Mass Arrest and
Therefore Created City Policy
37

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 38 of 40
Sr. Cmdr. Neuberger’s decisions (1) to clear downtown of protesters; and (2) to carry out the
mass arrest constitute decisions of a City employee with final authority to make them, rendering
the City liable under 42 U.S.C. § 1983. “Municipal liability may attach based on the single act
or decision of a municipal decisionmaker if the decisionmaker possesses final authority to
establish municipal policy over the subject matter in question.” Speer v. City of Wynne, 276 F.3d 980, 987 (8th Cir. 2002)(citation omitted). “[I]t is plain that municipal liability may be imposed
for a single decision by municipal policymakers under appropriate circumstances.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 480 (1986). The U.S. Supreme Court has stated,
[A] government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government “policy” as that term is commonly understood. More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly. To deny compensation to the victim would therefore be contrary to the fundamental purpose of § 1983.
* * *
…We hold that municipal liability under § 1983 attaches where-and only where-a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.
Pembaur, 475 U.S. at 481, 483. Here, it is clear that Sr. Cmdr. Neuberger had final authority on
law enforcement decisions made on the streets of downtown St. Paul on September 1, 2008.
Under Pembaur, therefore, the City is liable for those decisions.
Sr. Cmdr. Neuberger’s position on September 1, 2008 was Senior Commander in charge of mobile field force command post operations for the RNC. (2nd Tindal Aff., Ex. F, Neuberger
Depo., pp. 5, 10.) He was responsible for directing five MFF’s, comprising nearly 500 law
enforcement officers. (Neuberger Depo., p. 13.) The actions of MFF’s, including the use of riot
38

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 39 of 40

control agents, had to be approved by Sr. Cmdr. Neuberger, absent exigent circumstances.

(Frazer Depo., pp. 31-33.) Using this authority, Sr. Cmdr. Neuberger made the decisions to clear

the downtown area of all groups on foot and to direct that the mass arrest be carried out. Sr.

Cmdr. Neuberger has not suggested that he had to obtain approval from any other official or

governmental body to make these decisions affecting hundreds, if not thousands, of civilians. In

his official capacity, Sr. Cmdr. Neuberger made “deliberate choice[s] to follow a course of

action” on behalf of the City, and the City must now face liability for his policy-making actions.

Pembaur, 475 U.S. at 483.

IV. CONCLUSION

For the foregoing reasons, plaintiffs respectfully request that this Court deny defendants’

motion.

Dated: October 8, 2010

LAW OFFICE OF DAVID L. SHULMAN PLLC

s/ David L. Shulman_______________________ David L. Shulman (#260721) Law Office of David L. Shulman 1005 W. Franklin Ave., Suite 3 Minneapolis, MN 55405 Tel: 612-870-7410 Fax: 612-870-7462
Robert J. Kolstad (#258994) 2249 E. 38th St., #8 Minneapolis, Minnesota 55407 Telephone: 612-721-3425
R. Travis Snider (#270842) Snider Law Firm, Ltd. 1005 W. Franklin Avenue, Suite 3 Minneapolis, MN 55405 Telephone: 612-872-1200

39

CASE 0:09-cv-02312-PAM-JJG Document 60 Filed 10/08/10 Page 40 of 40

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(d) I hereby certify that this memorandum of law, exclusive of the caption, signature text, and this certification, contains 11,968 words, counted using Microsoft Word 2002 and applied to include all text, including headings, footnotes, and quotations.

Dated: October 8, 2010

LAW OFFICE OF DAVID L. SHULMAN PLLC
s/ David L. Shulman_______________________ David L. Shulman (#260721) Law Office of David L. Shulman 1005 W. Franklin Ave., Suite 3 Minneapolis, MN 55405 Tel: 612-870-7410 Fax: 612-870-7462

40

 
 CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 1 of 12

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Brook Bernini, Matthew Byrnes, Simon Cecil, Andrew Cohen, David Drew, Jr., Alana Michelle Exum, Bobby Reese Hagy, Jr., Adryn Hayes, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, Craig Neef, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Ryan Solem, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Kellan Dubbels, Kristofer Dubbels, David Morse, Bruce Wilkingson, and Adam Hayden, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
City of St. Paul, Steven Frazer, Joe Neuberger, Axel Henry, Patricia Englund, and Matthew Clark,
Defendants.

Civil No. 09-2312 (PAM/JJG) MEMORANDUM AND ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment. For the reasons that follow, and as stated at the Motion hearing, the Motion is granted. BACKGROUND
In the late afternoon of September 1, 2008, the first day of the Republican National Convention, a group of people walked east on Shepard Road, along the Mississippi River in

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 2 of 12
downtown St. Paul, Minnesota. The parties dispute the size of the group, but it was substantial by any measure—from the 35-40 claimed by Plaintiffs to the hundreds claimed by Defendants. Police were stationed at the two street entrances to downtown St. Paul along Shepard Road: Jackson Street and Sibley Street. There were approximately 11 officers at each entrance. Because of railroad tracks running parallel to Shepard Road and between Shepard and downtown, there are limited access points from Shepard into downtown.
Shepard Road was an im portant artery into downtown during the Conve ntion. Delegate buses were routed on Shepard because side streets in downtown were closed to traffic. Shepard offered direct access to the Xcel Energy Center and RiverCentre, where the Convention was held. Shepard was also designated an emergency route and was to be kept clear for em ergency vehicles. Further, the First Lady was scheduled to appear at the Convention in the evening of September 1, and her motorcade planned to use Shepard Road to reach the Convention hall.
All permitted protests for the Convention ha d ended at 3:00 pm . Several of the protests during the day had turned violent, with several incidents of property damage being reported, including vandalism to squad cars and broke n windows. The police were understandably a bit on edge. At some point in the afternoon, the officer in charge, Senior Commander Neuberger, gave the order to clear the downtown area and not to allow entrance to downtown for most civilians. He gave this order to “reestablish control [and]reestablish law enforcement presence” in the area around the Convention. (Neuberger Dep. at 38-39, 43-44.)
2

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 3 of 12
At about 4:30 pm, a portion of the group on Shepard started to cross Shepard towards Jackson Street. The crossing group was relatievly small—approximately 20 individuals. The group remaining on the south side of Shepard was considerably larger. According to police officers, the large group was chanting and yelli ng, and appeared to be working in concert with the group crossing the street. Plaintiffs contend that they were not among the group of people crossing the street.
Here the stories of the incident diverge considerably. Plaintiffs contend that the police began firing stinger blast balls; the police officers contend that the group began throwing items at the officers, including large rocks and bags of feces, and that they did not begin firing until after the group threw the items. Plaintiffs attempt to minimize the items thrown at the officers, but concede that the crowd threw some rocks and at least one bag of feces.
The officers began herding the crowd toward a park west of Jackson, across Shepard from the District Energy plant. The officers used tear gas and sm oke bombs to force the crowd to move west; Plaintiffs contend that the crowd was already m oving west and that there was no need for the police to use any fo rce to ensure that m ovement. Moreover, Plaintiffs allege that the tear gas and smoke bombs were aimed into the crowd, rather than at the back of the crowd. Defendants claimthat they repeatedly asked the crowd to disperse. Again, Plaintiffs contend that they did not hear any dispersal requests.
Once the crowd was contained in the park, the officers m ade several public announcements that the entire crowd was under arrest. However, not everyone in the crowd was actually arrested, and indeed fewer than half of those in the park were booked and taken
3

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 4 of 12
into custody. Eight of the Plaintiffs wereamong those released without booking. Plaintiffs
make much of the fact that Senior Commander Neuberger stated that he knew he did not have
probable cause to arrest everyone in the park. (Neuberger Dep. at 94.) A full reading of
Neuberger’s deposition, as well as that of the second-in-com mand officer, Com mander
Frazer, however, shows that the officers intended merely to detain all individuals within the
park prior to an individual determination as to which people should be arrested and booked:
[W]e set up a crim e scene, detained the people inside, and the folks in the field, who had actually experienced the behavior, witnessed the behavior then needed to go in and say, “Okay. This person is guilty of felony assault. This person would be a rioter or [had committed] unlawful assembly,” and actually vet who is arrested, formally arrested and taken to jail.
(Id. at 93.)
A. [W]e started to take people out of that encirclement who we clearly knew were not involved in the group that ha d attacked [the officers.] As I said earlier, the group that attacked [the officers] made it pretty easy for us. They kept constricting in size and staying together . . . . And then when we were comfortable and confident that we had only the people who were involved in the attack on [the officers], we kind of stopped for a few minutes, . . . and did an assessment.
. . . .
Q. Were there any—were there any individuals in the encircle ment that you had doubts about whether to book or let go?
A. Once we separated the groups, no. I believe that everybody that was in there should have been booked and we had probable cause to book.
(Frazer Dep. at 133, 140.)
Plaintiffs now allege excessive force, arrest without probable cause, and violations of
First Amendment rights against the City of St. Paul and a number of St. Paul police officers.
4

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 5 of 12
The Complaint is styled as a class action, but Plaintiffs have never sought class certification and thus the case remains an individual action. DISCUSSION
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(c). 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, 92 F.3d 743, 747 (8th Cir. 1996). However, “summary 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 deterimnation of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The moving party be ars the burden of s howing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 323; Enter. Bank, 92 F.3d at 747. A party opposing a properlysupported 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). A. Qualified Immunity
Qualified immunity shields police officers fromsuit if the officer reasonably believed that his or her conduct was lawful “in light of clearly established law and the inform ation possessed” by him or her at the time of the alleged incident. Smithson v. Aldrich, 235 F.3d
5

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 6 of 12
1058, 1061 (8th Cir. 2000) (citing Anderson v. Creighton , 483 U.S. 635, 641 (1987)). Qualified immunity is “immunity from suit rather than a mere defense to liability.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). “The qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incom petent or those who knowingly violate the law.’” Id.at 229 (quoting Malley v. Brigg,s475 U.S. 335, 343 (1986)).
On a motion for summary judgment, the Court undertakes a three-part inquiry to determine whether a police officer is entitled to qualified im munity. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009). First, the plaintiff must assert a violation of a constitutional or statutory right. Second, that right must be clearly established. Third, taking the facts in the light most favorable to Plaintiffs , “there must be no genuine issues of m aterial fact as to whether a reasonable official would have known that the alleged action violated that right.” Lambert v. City of Dum as, 187 F.3d 931, 935 (8th Cir. 1999). Although an official’s entitlement to qualified immunity is a question of law, if there are genuine disputes as to the facts material to the qualified immunity determination, summary judgment is not appropriate. Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994). B. Unlawful Arrest
The parties cite cases from the Court of Appeals for the D.C. Circuit for their respective positions with respect to Plaintiffs’ unlawful arrest claims.
Plaintiffs rely on Barham v. Ram sey, 434 F.3d 656 (D.C. Cir. 2006), for their contention that a mass arrest of individuals is unconstitutional unless the arresting officers had particularized information that each of the individuals violated the law. Barham arose
6

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 7 of 12

out of anti-globalization protests during International Monetary Fund m

eetings in

Washington in 2002. On the first day of those m eetings, defendant Newsham, a polic e

commander, observed sm all-scale demonstrations throughout his watch area, including

protesters knocking over trash cans and newspaper vending machines. He arrived at a park

in the area to find it crowded with people, som e of whom were chanting and dancing, but

none of whom appeared to be engaged in any kind of organized protest. Id. at 569. He

observed the park for 45 m inutes, noting that pedestrian traffic continued to m ove freely

through the park during that tim e. However, despite this, he decided to arrest everyone

within the park, and to do so without giving any orders to disperse. The park was cordoned

off, and ultimately 386 people were arrested a nd charged with failing to obey a dispersal

order.

The district court denied summary judgment to Newsham, determining that he was

not entitled to qualified immunity. The D.C. Circuit agreed, finding that his conduct violated

the arrestees’ constitutional rights by conducting a“mass arrest that was devoid of probable

cause.” Id. at 572. “Even assuming that Newsham had probable cause to believe that some

people present that m orning had com mitted arrestable of fenses, he nonetheless lacked

probable cause for detaining everyone who happened to be in the park.” Id. at 573

(emphases in original). The court found that Newsham lacked the particularized probable

cause required by Supreme Court precedent. Id. (citing Ybarra v. Illinois, 444 U.S. 85, 91

(1979)). The court was unpersuaded by the officer’s attempt “to excavate probable cause not

from the official reason for the arrest, but from the scattered acts of lawlessness that

7

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 8 of 12
Newsham and others had witnessed that morning.” Id. Rather, because the police arrested everyone, despite the fact that none of the people arrested had actually been observed committing any crime, those arrests did not pass constitutional muster. Id. at 574.
The court contrasted the situation in the parkwith a more riot-like situation, in which “compelling circumstances” might exist to justify detaining an “undifferentiated crowd of protestors.” Id. at 575. Such a situation was present in the case on which Defendants rely, Carr v. District of Columbia, 587 F.3d 401 (D.C. Cir. 2009). In Carr, a concert on the night of President George W. Bush’s second inauguration turned into an “anti-inaugural march,” during which police observed acts of violence suc h as setting fire to trash cans, breaking windows, and spray painting buildings and cars. Ida. t 403-04. The entire group of marchers appeared to the police to be cheering on the acts of violence. Id. The police eventually herded the m archers into an alley a nd arrested everyone in the alley. Id. at 405. The plaintiffs, who admitted to being part of the march, contended that the police did not have a particularized reason to arrest every person present in the alley. The district court agreed, granting summary judgment to the plaintiffs. Id.
On appeal, the D.C. Circuit reversed, contrasting the case with the situation in Barham. The court noted that the officers in Barhamwere not confronting a developing riotlike situation, but rather a mere loose gathering of individuals in a public park. The crowd in Barham “never operated as a cohesive unit.” Id. at 407 (quoting Ba rham, 434 F.3d at 569). The distinguishing fact was that the crowd in Barhamhad “exhibited no behavior that could allow a reasonable officer to believe everyone present had committed a crime.” Id.
8

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 9 of 12
(alteration in original) (quoting Barham , 434 F.3d at 573). The court found that the particularized probable cause requirement is satisfied “if the officers have grounds to believe all arrested persons were a part of the unit observed violating the law.” Id.
Assuming for the sake of this claim that the detention of individuals in the park constituted an arrest, Plaintiffs have not established a claimfor unlawful arrest. The St. Paul police were aware that some individuals in the park might not have committed any crimes. But because the behavior of the group as a whole was alarm ing at best and dangerous at worst, the police believed that a mass detention of short duration was necessary. Moreover, the depositions quoted above establish that the police did attem pt to separate innocent individuals from those they believed had engaged in illegal acts before any individuals were actually booked and taken away from the scene. The situation here is thus not akin to Barham, in which the police m erely arrested everyone present, without any warning and without attempting any differentiation.
Ultimately, it requires too much of police faced with a riot-like situation to single out for limited detention only the people they are certain com mitted a crime. Police must be permitted to act against a group as a whole when the group is suspected of inciting violence, and when the situation demands it. Plaintiffs have failed to establish that Defendants violated their constitutional rights by detaining or arresting them , and Defendants are therefore entitled to qualified immunity as to the unlawful arrest claim. C. First Amendment
Nor is the re any cognizable claim for a violation of Plaintiffs’ First Am endment 9

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 10 of 12
rights. “It is undisputed that protesting peaceably is protected speech. Violent protest is not.” Cross v. Mokwa , 547 F.3d 890, 898 (8th Cir. 2008) (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933 (1982)). Plaintiffs admit that the crowd threw some rocks and at least one bag of feces. Moreover, the ploice at the intersection of Jackson and Shepard put in an urgent call for back-up, showing that they feared that the protest was turning violent. Plaintiffs have failed to establish that the police were retaliating against themon the basis of the ir speech, and they have therefore not established any violation of their constitutional rights. Defendants are entitled to qualified immunity on this claim as well. D. Excessive Force
“Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Am endment interests’ against the countervailing governmental interests at stake .” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). In making this determination, the Court must pay “careful attention to the facts and circumstances of each particular case, including the severity of the crim e at issue [and] whether the suspect poses an immediate threat to the safety of the officers or others . . . .” Id. Finally, “the ‘reasonableness’ of a particular use of force must be judged fromthe perspective ofa reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id.
As the Supreme Court has recognized, courts must remember that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and
10

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 11 of 12
rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 397. This is precisely why the officers’ conduct here withstands constitutional scrutiny. Taking the evidence in the light most favorable to Plaintiffs, it is clear that the officers were concerned that the situation was devolving into a riot, and tha t it was not a situation they could easily control. Even if Plaintiffs are correct that the officers fired smoke bombs into the crowd, the Court cannot say that this action was unreasonable in light of the situation facing the officers at the time. Defendants are entitled to qualified immunity on Plaintiffs’ excessive force claim. E. City of St. Paul
A government entity such as the City of St. Paul m ay be vicariously liable for the unconstitutional actions of individual police officers only if a municipal custom or policy is the “moving force [behind] the constitutional violation.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978). Beca use Plaintiffs have failed to establish that any of the individual officers violated their constitutional rights, the City has no vicarious liability and the Monell claim against the City of St. Paul fails.
Plaintiffs also attempt to bring a slightly different claimagainst the City, alleging that the decision to clear downtown of all civilians, or most civilians, violated their free-speech rights. This claimalso fails. The City’sdecision was not unconstitutional. The police must be allowed to keep order. After a day of increasingly violent protests, and with the prospect of a visit by the First Lady looming, the police reasonably believed that preventing entrance to downtown was the best way to reestablish order. There is no indication that police
11

CASE 0:09-cv-02312-PAM-JJG Document 65 Filed 10/28/10 Page 12 of 12

blocked entrance to downtown for an extended period of time. Rather, they determined that a blockade of limited duration was necessary to accom plish their legitimate public safety goals. Plaintiffs’ claims against the City fail. CONCLUSION
As the Court noted at the hearing, the evid ence in this case shows that the St. Pa ul police deserve commendation for their actions during the Republican National Convention. Instead, they and the taxpayers of St. Paul are faced with this m eritless, attention-seeking lawsuit. Defendants are entitled to qualified im munity on all of Plaintiffs’ claim s, and Plaintiffs’ lawsuit must be dismissed.
Accordingly, IT IS HEREBY ORDERED that: 1. The Motion for Summary Judgment (Docket No. 36) is GRANTED; and 2. The Second Am ended Complaint (Docket No. 25) is DISMISSED with
prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: Thursday, October 28, 2010

s/ Paul A. Magnuson
Paul A. Magnuson United States District Court Judge

12

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 10-3552 ___________

Brook Bernini; Matthew Byrnes; Simon *

Cecil; Andrew Cohen; David Drew, Jr.; *

Alana Michelle Exum; Bobby Reese *

Hagy, Jr.; Adryn Hayes; Kevin Hundt; *

Rachel Jackson; Tiana Johnson; Garth *

Kahl; Jared Lanctot; Michael Larson; *

Vain Mainstream; Craig Neef; Mary * Appeal from the United States

Ogle; Tim Phillips; Raphi Rechitsky; * District Court for the

Lambert Rochfort; Nick Segner; Ryan * District of Minnesota.

Solem; Zach Swift; Andrew

*

Temperante; Michael Ward, II; Rachel *

Westlund; Nelson Whitmore; Kellan *

Dubbels; Kristofer Dubbels; David *

Morse; Bruce Wilkinson; Adam

*

Hayden, on behalf of themselves and all *

others similarly situated,

*

*

Appellants,

*

*

v.

*

*

City of St. Paul; Steven Frazer; Joe *

Neuberger; Axel Henry; Patricia

*

Englund; Matthew Clark, in their

*

individual capacity,

*

*

Appellees.

*

___________

Submitted: June 15, 2011 Filed: January 13, 2012 ___________

Before COLLOTON, CLEVENGER,1 and BENTON, Circuit Judges. ___________
COLLOTON, Circuit Judge.
This civil action arose out of events that occurred on the first day of the 2008 Republican National Convention in St. Paul, Minnesota. Thirty-two people filed suit under 42 U.S.C. § 1983 against six police officers and the City of St. Paul, alleging violations of their rights under the First and Fourth Amendments. The parties stipulated to the dismissal of claims against one officer, and the district court2 granted the defendants’ motion for summary judgment on the remaining claims. The plaintiffs appeal the dismissal of their claims against five officers and the City, and we affirm.
I.
We recite the facts in the light most favorable to the plaintiffs, the nonmoving parties. From September 1-4, 2008, St. Paul hosted the Republican National Convention at the Xcel Energy Center. The Convention attracted large crowds of protestors. Throughout the first day, property damage was reported around the City. There were broken building windows, objects thrown at cars and buses, and vandalized police cars. After marches with permits had ended, Senior Commander Joseph Neuberger, who was the east area commander for mobile field force operations during the Convention, ordered that no one be allowed to enter the downtown area. Neuberger believed it was necessary to “reestablish control [and] reestablish law enforcement presence” downtown and around the Convention site.
1The Honorable Raymond C. Clevenger, III, Judge of the United States Court of Appeals for the Federal Circuit, sitting by designation.
2The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota.
-2-

The events at issue occurred on or near Shepard Road in St. Paul. Shepard Road runs along the southeastern edge of downtown St. Paul and borders the Mississippi River. The road was a major thoroughfare during the Convention. It served as a route for emergency vehicles to access the Xcel Energy Center, and it was the planned route of the First Lady’s motorcade on the evening of September 1. Although Shepard Road runs along the edge of downtown St. Paul, it provides only limited access to downtown, because much of the road is bordered by the Mississippi River on one side and a large concrete wall on the other. Jackson Street and Sibley Street intersect with Shepard Road and provide access to the east end of downtown St. Paul.
After ordering downtown closed, Neuberger learned about a group of people marching east on Shepard Road. Neuberger instructed a team of officers—known as Neighborhood Response Team 36 (“Team 36”)—to position itself at the intersections of Shepard Road and Jackson Street and Shepard Road and Sibley Street to prevent entry to the downtown. As Team 36 traveled to the intersections, the unit passed a large group marching along Shepard Road. The officers received information that the group was connected to unlawful acts that had occurred earlier in the day. Team 36 positioned approximately 11 officers at each intersection, blocking access to the downtown area.
At about 4:30 p.m., as seen on video recordings submitted as evidence, a group of approximately 100 people gathered at the intersection of Shepard Road and Jackson Street and stood on the sidewalk across the street from the officers on the south side of Shepard Road. About fifteen people, advancing behind two large signs, soon began to cross Shepard Road, moving toward the officers and downtown St. Paul. The words “Direct Action Against Capitalism” were written across one of the signs.
-3-

The officers instructed these people to “back up, back up!” As the group continued to cross Shepard Road, the officers deployed stinger blast balls. These balls contain rubber pellets; they are designed to sting the targeted persons. The small group then retreated to the sidewalk on the south side of Shepard Road. Although the plaintiffs deny seeing anyone throw objects at Team 36, the officers reported that numerous objects—including rocks and bags containing feces—were propelled at them.
After the group retreated to the sidewalk along Shepard Road, it began to move to the west. The officers, soon joined by reinforcements, also moved west in an attempt to direct the crowd away from Jackson Street and back in the direction from which it came. As the crowd proceeded west, it grew to include hundreds of people. On video footage, members of the crowd can be heard chanting in unison “the whole world is watching” and various profanities. The police continued to use non-lethal munitions, including smoke, blast balls, and chemical irritants, in an apparent effort to keep the crowd moving west.
In consultation with Neuberger, Steven Frazer, the officer in charge at the scene, decided to encircle the crowd in a park adjacent to Shepard Road and near Ontario Street, approximately 0.6 mile west of the Jackson Street intersection. Because much of Shepard Road is bordered by the river and concrete wall, this park presented the first opportunity west of Jackson Street to gather the crowd, which now included approximately 400 individuals. After the officers contained the crowd in the park, they announced multiple times by loudspeaker that all persons were under arrest and must sit down and place their hands on their heads. Officers then attempted to determine who had been present at the Shepard-Jackson intersection. According to one officer, these people “stayed together as group” and “were segmented off from the other people” in the park. The sorting process led to the release of approximately 200 people. The officers then booked and placed into custody about 160 others. The
-4-

parties dispute whether the officers ordered the crowd to disperse before encircling the park and making the arrests.
Thirty-two people filed suit pursuant to 42 U.S.C. § 1983 against the City of St. Paul and the five appellee police officers in their individual capacities. The plaintiffs were present along Shepard Road in various capacities, including as legal observers, medics, concert-goers, protestors, and members of the media. At least eighteen plaintiffs were present in the immediate vicinity of the Shepard-Jackson intersection at the time of the confrontation. The remaining plaintiffs claim they were located somewhere between the intersection and the park, and were added to the group as police moved the crowd west. Although each plaintiff was present in the park when it was encircled by the police, seven plaintiffs (including two who were present at the Shepard-Jackson intersection) were briefly detained and released, and twenty-five were booked and taken into custody. Those taken into custody were released within 72 hours, and all charges were eventually dismissed.
The plaintiffs allege that the actions of the police on Shepard Road and in the park violated their rights under the First and Fourth Amendments, as incorporated against the States through the Fourteenth Amendment. The district court granted summary judgment in favor of the officers and the City. This appeal followed.
II.
We first consider the plaintiffs’ claims against the officers. Qualified immunity shields a public official from suit for civil damages when his “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 officers are therefore entitled to qualified immunity unless (1) the evidence, viewed in the light most favorable to the plaintiffs, establishes a violation of a constitutional or statutory right, and (2) the right was clearly established at the time of the violation,
-5-

such that a reasonable officer would have known that his actions were unlawful. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). We have discretion, in light of the circumstances, to resolve the appeal under either step of this analysis. Harlow, 457 U.S. at 818. We review the district court’s grant of summary judgment de novo, considering the evidence in the light most favorable to the plaintiffs. Doe v. Flaherty, 623 F.3d 577, 583 (8th Cir. 2010).
A.
The plaintiffs first allege that the officers violated their Fourth Amendment right to be free from an unreasonable seizure by making unlawful arrests in the park. 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 or is committing a crime. Brinegar v. United States, 338 U.S. 160, 175-76 (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).
The plaintiffs base their claim on the general proposition articulated by the Supreme Court in Ybarra v. Illinois, 444 U.S. 85 (1979): “Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another . . . .” Id. at 91. The Court in Ybarra held that probable cause to search a bartender and the premises of a tavern in an Illinois town for evidence of drug sales did not justify the search of nine to thirteen customers who
-6-

happened to be present at the time of the search. According to the plaintiffs, the officers here violated the Fourth Amendment by conducting a mass arrest when they had probable cause with respect to only a subset of the arrestees.
The touchstone of the Fourth Amendment is reasonableness under the particular circumstances presented. Samson v. California, 547 U.S. 843, 855 n.4 (2006); Terry v. Ohio, 392 U.S. 1, 19 (1968). What is reasonable in the context of a potential large-scale urban riot may be different from what is reasonable in the relative calm of a tavern with a dozen patrons. The D.C. Circuit has addressed the practical dilemma faced by officers responsible for reacting to large group activity, and recognized that a “requirement that the officers verify that each and every member of a crowd engaged in a specific riotous act would be practically impossible in any situation involving a large riot.” Carr v. District of Columbia, 587 F.3d 401, 408 (D.C. Cir. 2009). The court concluded that the Fourth Amendment “is satisfied if the officers have grounds to believe all arrested persons were a part of the unit observed violating the law.” Id. at 407 (emphasis added). Carr thus demonstrates that a reasonable officer in St. Paul could have believed that the Fourth Amendment did not require a probable cause determination with respect to each individual in a large and potentially riotous group before making arrests.
Based on undisputed evidence, the officers in this case reasonably could have concluded that the group at the Shepard-Jackson intersection had committed a crime and that the group was acting as a unit. See Scott v. Harris, 550 U.S. 372, 378-81 (2007) (holding that a court of appeals should view the facts on summary judgment in the light depicted by a videotape that captured the events in question). Video footage shows that the group marched east on Shepard Road and then stopped at the intersection, positioning itself directly across from the line of Team 36 officers. Many members of the group had donned gas masks and other facial coverings, as though they were preparing for a confrontation with police. Flags waived from within the crowd, and several people can be heard shouting profanities and taunting
-7-

the officers. A portion of the group, shielding itself behind two large signs, then began to cross the intersection toward the officers. And after the confrontation at the intersection, as the group was driven west on Shepard Road, members chanted statements in unison.
From these actions, a reasonable officer could have concluded that the individuals at the intersection were acting together and that they intended to break through the police line in an attempt to access downtown St. Paul. It was reasonable, therefore, for an officer to believe that the group, as a whole, was committing one or more offenses under state law, including third degree riot and unlawful assembly. See Minn. Stat. §§ 609.71 subdiv. 3,3 609.705;4 State v. Hipp, 213 N.W.2d 610, 614-15 (Minn. 1973). We thus conclude that the police did not violate the clearly established rights of sixteen plaintiffs who were both present at the intersection and arrested at the park. Carr, 587 F.3d at 409-10; cf. Vodak v. City of Chicago, 639 F.3d 738, 74546 (7th Cir. 2011) (holding that police who effected a mass arrest of protestors were not entitled to qualified immunity where the crowd did not try to “break through the police barrier,” and the circumstances “were not threatening to the safety of the police or other people”).
As the officers directed the group west on Shepard Road toward the park, some new people became intermingled with the people composing the unit at the Shepard-
3“When three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant therein is guilty of riot third degree . . . .” Minn. Stat. § 609.71 subdiv. 3.
4“When three or more persons assemble, each participant is guilty of unlawful assembly, which is a misdemeanor, if the assembly is: (1) with intent to commit any unlawful act by force; or (2) with intent to carry out any purpose in such manner as will disturb or threaten the public peace; or (3) without unlawful purpose, but the participants so conduct themselves in a disorderly manner as to disturb or threaten the public peace.” Minn. Stat. § 609.705.
-8-

Jackson intersection, and some of these additional persons were ultimately detained or arrested at the park. Under the circumstances of this case, however, we conclude that the officers are entitled to qualified immunity for making these seizures.
If the officers were to apprehend the offending protestors, they had no practical alternative but to move the offenders west on Shepard Road to the park to make an arrest. When confronted by the group at the intersection, the police were faced with a precarious situation. The group had demonstrated an intent to charge the downtown area, and members of the group were beginning to obstruct a major roadway that was designated for emergency vehicles and the First Lady’s motorcade. The video footage shows that it would have been impractical for Team 36 to detain immediately the dozens of individuals present at the intersection. The officers were clearly outnumbered, and that portion of Shepard Road is bordered by the Mississippi River on one side and a concrete wall on the other. The officers thus reasonably attempted to move the group to the west.
The walk from Jackson Street to the park caused the group to expand and enveloped people who were not present at the intersection. But unlike the officer in Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006), who directed an indiscriminate mass arrest of about 400 persons in a park based on the unlawful acts of a small group of protestors, the police in this case attempted to discern who had been part of the unit at the intersection and released approximately 200 people, including seven of the plaintiffs, at the park.
The police did not violate the clearly established rights of the seven plaintiffs who were among those released at the park. These people were detained only while the officers sought to determine who were the members of the group at the intersection. Cf. Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (explaining that although conduct “was ambiguous and susceptible of an innocent explanation,” officers were permitted to “detain the individuals to resolve the ambiguity”). They
-9-

were thus held pursuant to an investigative detention that was “reasonably necessary to achieve the purpose of the temporary seizure.” United States v. Maltais, 403 F.3d 550, 556 (8th Cir. 2005) (internal quotation omitted).
The nine remaining plaintiffs allege that they were arrested and taken into custody even though they were not present at the Shepard-Jackson intersection. They further contend that the group at the intersection numbered no more than thirty to forty people, and that the officers did not have probable cause (or even arguable probable cause) to arrest more than this number. The video footage, however, shows that the group was much larger. Approximately fifty people clustered closely together directly across from the officers. Another fifty or so people can be seen standing on either side of the group, along the sidewalk.
Qualified immunity “protects all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (internal quotation omitted). In the circumstances of this case, we conclude that the arrest of 160 people in the park (including the nine plaintiffs) was within the range of objectively reasonable police conduct in light of the law that was clearly established and the information available to the officers.
It was reasonable for the officers to believe they could arrest those who were acting as a unit with the protestors who attempted to break through the police barrier at the Shepard-Jackson intersection. The videos depict approximately 100 people present at the intersection. The eleven officers were positioned under an overpass, making it difficult for them to see how far the crowd extended to the west. From the officers’ vantage point, it appeared as if “people were continuously arriving from the west.” The officers, especially without the benefit of the videos, could not have been sure of the precise number. They did release approximately 200 people at the park in an attempt to avoid custodial arrests of innocent bystanders. Given the situation at the intersection, the officers’ allegedly mistaken belief at the park that 160 people
-10-

were part of a unit that had gathered to enter downtown at the Shepard-Jackson intersection was objectively reasonable. We therefore affirm the district court’s conclusion that the officers are entitled to qualified immunity for the seizures.
B.
The plaintiffs also allege that the officers violated the Fourth Amendment’s prohibition on unreasonable seizures by using excessive force. In evaluating this claim, we consider whether the officers’ actions were objectively reasonable and balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotations omitted). Whether a particular use of force is unreasonable “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396.
The record does not show that any of the defendants directly used force against any of the plaintiffs. The plaintiffs focus on the actions of Sergeant Axel Henry, the lead sergeant in Team 36. Henry testified in his deposition that when he deployed various non-lethal munitions at the Shepard-Jackson intersection, his deployment implicitly authorized officers under his command to do the same. The plaintiffs’ theory apparently is that Henry’s authorization amounted to direct participation by Henry in the deployment of non-lethal munitions by subordinates. See Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997). As such, they contend that unreasonable use of non-lethal munitions by Henry or his compliant subordinates gives rise to Henry’s liability under § 1983.
We conclude, however, that Henry is entitled to qualified immunity. In our view, the use of force was reasonable under the Fourth Amendment. At a minimum, it was not objectively unreasonable for Henry to authorize the force deployed in light
-11-

of clearly established law. The circumstances led officers reasonably to believe that a growing crowd intended to penetrate a police line and access downtown St. Paul. Henry’s use and authorization to use non-lethal munitions to direct the crowd away from the intersection and toward a park where the crowd could be controlled did not violate clearly established rights.
The plaintiffs contend that it was unreasonable for the officers to continue to use force as the crowd moved west on Shepard Road, because the crowd was “complying with the movement of the officers and posed no threat to the officers.” The video footage reveals, however, that some people would not leave the roadway and that some turned east and faced the officers. It was reasonable for the officers to deploy non-lethal munitions to keep all members of the crowd moving west.
Some plaintiffs assert that they were directly targeted by officers—one, for example, testified that an officer sprayed a chemical irritant on his face, neck, ears, and back. But there is no evidence that Henry authorized this type of force against a compliant individual. His implicit authorization occurred at the intersection and involved force deployed against a noncompliant crowd. The plaintiffs have not identified any defendant who used gratuitous force. The evidence, therefore, does not support the conclusion that Henry or any other defendant violated clearly established rights under the Fourth Amendment. The district court properly granted summary judgment on this claim.
C.
The plaintiffs’ final claim against the individual officers is that the officers arrested them in retaliation for exercising their First Amendment rights. “[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). To prevail on a First Amendment retaliation
-12-

claim, the plaintiffs must show that they engaged in protected activity, that the defendants’ actions caused an injury to the plaintiffs that would chill a person of ordinary firmness from continuing to engage in the activity, and that a causal connection exists between the retaliatory animus and the injury. Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010) (per curiam); see also Hartman, 547 U.S. at 259. To establish this connection, the plaintiffs must show that they “were ‘singled out’ because of their exercise of constitutional rights.” Baribeau, 596 F.3d at 481 (quoting Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir. 2007)).
The plaintiffs have not made a submissible First Amendment retaliation claim. Although the protestors at the Shepard-Jackson intersection were engaged in protected speech, members of the unit moved toward the police in a threatening manner and began to block traffic along a major roadway. A reasonable officer could conclude that this conduct violated Minnesota law and was not protected speech. See Cross v. Mokwa, 547 F.3d 890, 896 (8th Cir. 2008); see also Minn. Stat. §§ 609.71 subdiv. 3, 609.705. The video footage shows that officers engaged and pursued the group only after the unlawful conduct. And there is no evidence that the group was singled out while others similarly situated were not arrested. See Osborne v. Grussing, 477 F.3d 1002, 1006-07 (8th Cir. 2007). The only reasonable inference supported by the record is that the group’s unlawful conduct, not the protected speech, motivated the officers’ actions. See Baribeau, 596 F.3d at 481; Kilpatrick, 499 F.3d at 768-69. The district court was thus correct to grant summary judgment for the officers on this claim as well.
III.
Finally, we consider the plaintiffs’ claim against the City. The plaintiffs allege that City policy authorized the alleged constitutional violations that occurred. They contend that Neuberger, who commanded approximately 500 officers as the east area commander, “had final authority over law enforcement decisions made on the streets
-13-

of downtown St. Paul on September 1,” and that the City is therefore liable for his command decisions. We review the district court’s summary judgment ruling in favor of the City de novo, viewing the evidence in the light most favorable to the plaintiffs. Copeland v. Locke, 613 F.3d 875, 879 (8th Cir. 2010).
A municipality can be liable under § 1983 if an “action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Although a single unconstitutional act may not always suffice to support a claim of municipal liability, see City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion), “an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government’s business.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion). In such a circumstance, “only those municipal officials who have ‘final policymaking authority’ may by their actions subject the government to § 1983 liability.” Id. (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion)); see also Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 405-06 (1997).
Neuberger’s actions are not sufficient to impose liability on the City. “[W]hether an official had final policymaking authority is a question of state law.” Pembaur, 475 U.S. at 483 (plurality opinion). The plaintiffs, however, have not identified any provision of Minnesota or municipal law establishing that Neuberger had final policymaking authority. The St. Paul Code of Ordinances includes layers of policymaking authority above Neuberger’s rank. The chief of police, for example, has “general authority and control over all departmental staff and shall oversee the proper fulfillment of all tasks and duties assigned to the department.” St. Paul, Minn., Code of Ordinances pt. III, § 8.03; see also id. pt. I, § 1.04 (vesting the powers of the City in the mayor and council). The plaintiffs maintain that Neuberger did not have to obtain approval from any other official or governmental body before instructing his subordinates. But that Neuberger had “discretion in the exercise of particular
-14-

functions does not, without more, give rise to municipal liability based on an exercise of that discretion.” Pembaur, 475 U.S. at 481-82 (plurality opinion); see also Copeland, 613 F.3d at 882-83. The district court correctly granted summary judgment in favor of the City.
* * * The judgment of the district court is affirmed.
______________________________
-15-

 
 CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 1 of 17
CLOSED,CV,PROTO
U.S. District Court U.S. District of Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:09−cv−02312−PAM−JJG

Bernini et al v. St. Paul, City of et al Assigned to: Senior Judge Paul A. Magnuson Referred to: Magistrate Judge Jeanne J. Graham Demand: $50,000 Case in other court: USCA 8th Circuit, 10−03552 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/01/2009 Date Terminated: 10/28/2010 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Brook Bernini On behalf of themselves and all others similarly situated

represented by David L Shulman Law Office of David L. Shulman PLLC 1005 Franklin Ave W Ste 3 Mpls, MN 55405 612−870−7410 Fax: 612−870−7462 Email: davidshulman@a−d−law.com ATTORNEY TO BE NOTICED

R Travis Snider Snider Law Firm, Ltd 1005 W. Franklin Avenue, Suite 3 Minneapolis, MN 55405 612−872−1200 Fax: 612−870−7462 Email: snider@snider−law.com ATTORNEY TO BE NOTICED

Robert J Kolstad Robert J. Kolstad, Lawyer 701 Fourth Avenue South Suite 1400 Mpls, MN 55415 612−721−3425 Email: bob@robertkolstad.com ATTORNEY TO BE NOTICED

Plaintiff
Matthew Byrnes On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Simon Cecil On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 2 of 17

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Andrew Cohen On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
David Drew, Jr. On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Alana Michelle Exum On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bobby Reese Hagy, Jr. On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Adryn Hayes On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 3 of 17

(See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kevin Hundt On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rachel Jackson On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Tiana Johnson On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Garth Kahl On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jared Lanctot On behalf of themselves and all others

represented by David L Shulman (See above for address)

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 4 of 17

similarly situated

ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Michael Larson

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Vain Mainstream On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Craig Neef On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Mary Ogle On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 5 of 17

Plaintiff
Tim Phillips On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Raphi Rechitsky On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lambert Rochfort On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Nick Segner On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ryan Solem On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 6 of 17

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Zach Swift On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Andrew Temperante On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michael Ward, II. On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rachel Westlund On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Nelson Whitmore On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address)

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 7 of 17

ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kellan Dubbels On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Kristofer Dubbels On behalf of themselves and all other similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
David Morse On behalf of themselves and all other similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bruce Wilkingson On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED

Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Adam Hayden On behalf of themselves and all others similarly situated

represented by David L Shulman (See above for address) ATTORNEY TO BE NOTICED

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 8 of 17

R Travis Snider (See above for address) ATTORNEY TO BE NOTICED
Robert J Kolstad (See above for address) ATTORNEY TO BE NOTICED

V. Defendant St. Paul, City of
Defendant John Doe Nos. 1−20 In their individual capacity TERMINATED: 02/12/2010
Defendant Steven Frazer in their individual capacity

represented by Jason M Hiveley Iverson Reuvers, LLC 9321 Ensign Ave S Bloomington, MN 55438 952−548−7209 Fax: 952−548−7210 Email: jasonh@irc−law.com ATTORNEY TO BE NOTICED
Jon K Iverson Iverson Reuvers Condon 9321 Ensign Ave S Bloomington, MN 55438 952−548−7204 Fax: 952−548−7210 Email: jon@irc−law.com ATTORNEY TO BE NOTICED
Susan M Tindal Iverson Reuvers Condon 9321 Ensign Ave S Bloomington, MN 55438 952−548−7200 Fax: 952−548−7210 Email: susan@irc−law.com ATTORNEY TO BE NOTICED
represented by Jason M Hiveley (See above for address) ATTORNEY TO BE NOTICED
Jon K Iverson (See above for address) ATTORNEY TO BE NOTICED
Susan M Tindal (See above for address) ATTORNEY TO BE NOTICED
represented by Jason M Hiveley (See above for address) ATTORNEY TO BE NOTICED
Jon K Iverson (See above for address) ATTORNEY TO BE NOTICED
Susan M Tindal

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 9 of 17

(See above for address) ATTORNEY TO BE NOTICED

Defendant
Bill Snyder in their individual capacity TERMINATED: 09/29/2010

represented by Jason M Hiveley (See above for address) ATTORNEY TO BE NOTICED

Jon K Iverson (See above for address) ATTORNEY TO BE NOTICED

Susan M Tindal (See above for address) ATTORNEY TO BE NOTICED

Defendant
Joe Neuberger in their individual capacity

represented by Jason M Hiveley (See above for address) ATTORNEY TO BE NOTICED

Jon K Iverson (See above for address) ATTORNEY TO BE NOTICED

Susan M Tindal (See above for address) ATTORNEY TO BE NOTICED

Defendant
Axel Henry in their individual capacity

represented by Jason M Hiveley (See above for address) ATTORNEY TO BE NOTICED

Jon K Iverson (See above for address) ATTORNEY TO BE NOTICED

Susan M Tindal (See above for address) ATTORNEY TO BE NOTICED

Defendant
Patricia Englund in their individual capacity

represented by Jason M Hiveley (See above for address) ATTORNEY TO BE NOTICED

Jon K Iverson (See above for address) ATTORNEY TO BE NOTICED

Susan M Tindal (See above for address) ATTORNEY TO BE NOTICED

Defendant
Matthew Clark in their individual capacity

represented by Jason M Hiveley (See above for address) ATTORNEY TO BE NOTICED

Jon K Iverson (See above for address)

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 10 of 17
ATTORNEY TO BE NOTICED
Susan M Tindal (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/01/2009
09/01/2009 09/18/2009 09/18/2009 09/18/2009 09/21/2009 09/21/2009 09/28/2009 11/06/2009 11/16/2009 11/16/2009 11/18/2009 11/19/2009 12/01/2009 12/02/2009 01/15/2010

# Docket Text
1 COMPLAINT against John Doe Nos. 1−20, St. Paul, City of ( Filing fee $ 350 receipt number 3006176.) assigned to Judge Paul A. Magnuson per Civil Rights referred to Magistrate Judge Jeanne J. Graham and filed by Kevin Hundt, Michael Larson, II, Alana Michelle Exum, David Drew, Jr, Brook Bernini, Andrew Temperante, Lambert Rochfort, Andrew Cohen, Nelson Whitmore, Mary Ogle, Adryn Hayes, Bobby Reese Hagy, Jr, Ryan Solem, Vain Mainstream, Michael Ward, II, Craig Neef, Simon Cecil, Tiana Johnson, Nick Segner, Tim Phillips, Jared Lanctot, Rachel Westlund, Zach Swift, Raphi Rechitsky, Rachel Jackson, Garth Kahl, Matthew Byrnes. (Attachments: # 1 Civil Cover Sheet) (MMP) (Entered: 09/01/2009)
Summons Issued as to John Doe Nos. 1−20, St. Paul, City of. (MMP) (Entered: 09/01/2009)
2 AMENDED COMPLAINT against John Doe Nos. 1−20, St. Paul, City of, Steven Frazer, Bill Snyder, filed by Brook Bernini. (Shulman, David) (Entered: 09/18/2009)
3 CERTIFICATE OF SERVICE by Brook Bernini re 2 Amended Complaint Service on City (Shulman, David) (Entered: 09/18/2009)
Amended Summons Issued as to Steven Frazer, Bill Snyder. (TSS) (Entered: 09/18/2009)
4 SUMMONS Returned Executed by Brook Bernini. St. Paul, City of served on 9/1/2009, answer due 9/21/2009. (Shulman, David) (Entered: 09/21/2009)
5 ANSWER to Complaint by John Doe Nos. 1−20, St. Paul, City of. (Attachments: # 1 Certificate of Service) (Tindal, Susan) (Entered: 09/21/2009)
6 ANSWER to Amended Complaint by Steven Frazer, John Doe Nos. 1−20, Bill Snyder, St. Paul, City of. (Attachments: # 1 Certificate of Service) (Tindal, Susan) (Entered: 09/28/2009)
7 NOTICE of Rule 16 Pretrial Conference set for December 1, 2009 @ 2:20 PM in Judge's Chambers, Suite 734 (STP) before Judge Paul A. Magnuson. (smr) (Entered: 11/06/2009)
8 WAIVER OF SERVICE Returned Executed filed by Brook Bernini. Steven Frazer waiver sent on 9/21/2009, answer due 11/20/2009. (Shulman, David) (Entered: 11/16/2009)
9 WAIVER OF SERVICE Returned Executed filed by Brook Bernini. Bill Snyder waiver sent on 9/21/2009, answer due 11/20/2009. (Shulman, David) (Entered: 11/16/2009)
10 WAIVER OF SERVICE Returned Executed filed by Brook Bernini. (Shulman, David) (Entered: 11/18/2009)
11 REPORT of Rule 26(f) Planning Meeting by all filers.(Shulman, David) Modified text on 11/20/2009 (jz). (Entered: 11/19/2009)
***TEXT ONLY***Minute Entry for proceedings held before Judge Paul A. Magnuson: Rule 16 Pretrial Conference held on 12/1/2009. Schedule set, order to be submitted. (smr) (Entered: 12/02/2009)
12 Pretrial Scheduling Order. Signed by Senior Judge Paul A. Magnuson on 12/02/2009. (LM) (Entered: 12/02/2009)
13 DOCUMENT FILED IN ERROR− MOTION for Protective Order by Steven Frazer, John Doe Nos. 1−20, Bill Snyder, St. Paul, City of. (Attachments: # 1 Certificate of Service)(Tindal, Susan) Modified on 1/15/2010 (jz). (Entered: 01/15/2010)

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 11 of 17

01/15/2010 01/20/2010 02/01/2010 02/01/2010 02/01/2010 02/09/2010 02/09/2010 02/09/2010 02/09/2010 02/10/2010 02/10/2010
02/11/2010 02/11/2010 02/16/2010 02/22/2010 04/07/2010 04/07/2010 04/07/2010 04/07/2010

14 STIPULATION for Protective Order by all parties. (Attachments: # 1 Certificate of Service)(Tindal, Susan) Modified text and filers on 1/19/2010 (jz). (Entered: 01/15/2010)
15 PROTECTIVE ORDER, re: Stipulation 13 for Protective Order. Signed by Magistrate Judge Jeanne J. Graham on 1/20/10. (RLR) (Entered: 01/20/2010)
16 MOTION to Amend/Correct 2 Amended Complaint by all Plaintiffs. (Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B)(Shulman, David) Modified text and filers on 2/2/2010 (jz). (Entered: 02/01/2010)
17 NOTICE OF HEARING ON MOTION 16 MOTION to Amend/Correct 2 Amended Complaint : Motion Hearing set for 3/16/2010 09:30 AM in Courtroom 3B (STP) before Magistrate Judge Jeanne J. Graham. (Shulman, David) (Entered: 02/01/2010)
18 CERTIFICATE OF SERVICE by Brook Bernini re 16 MOTION to Amend/Correct 2 Amended Complaint, 17 Notice of Hearing on Motion. (Shulman, David) Modified text on 2/2/2010 (jz). (Entered: 02/01/2010)
19 STIPULATION re 2 Amended Complaint to Amend by all parties. (Attachments: # 1 Exhibit(s) A)(Shulman, David) Modified text on 2/10/2010 (jz). (Entered: 02/09/2010)
20 DOCUMENT FILED IN ERROR−AMENDED COMPLAINT Second against Steven Frazer, John Doe Nos. 1−20, Bill Snyder, St. Paul, City of, filed by Brook Bernini. (Shulman, David) Modified text on 2/10/2010 (jz). (Entered: 02/09/2010)
21 LETTER TO MAGISTRATE JUDGE by Brook Bernini. (Shulman, David) (Entered: 02/09/2010)
22 CERTIFICATE OF SERVICE by Brook Bernini re 19 Stipulation, 20 Amended Complaint Second. (Shulman, David) Modified text on 2/10/2010 (zj). (Entered: 02/09/2010)
23 ORDER re 19 Stipulation to Amend Complaint filed by Brook Bernini IS ADOPTED. Signed by Magistrate Judge Jeanne J. Graham on 02/10/2010. (LMB) (Entered: 02/10/2010)
24 ORDER re 16 Pursuant to the letter from plaintiffs counsel withdrawing their Motion to Amend the Amended Complaint, the motions hearing scheduled for March 16, 2010, has been STRICKEN from this Courts calendar. Signed by Magistrate Judge Jeanne J. Graham on 02/10/2010. (LMB) (Entered: 02/10/2010)
25 AMENDED COMPLAINT Second against Steven Frazer, John Doe Nos. 1−20, Bill Snyder, St. Paul, City of, filed by Brook Bernini. (Shulman, David) (Entered: 02/11/2010)
26 CERTIFICATE OF SERVICE by Brook Bernini re 25 Amended Complaint Second. (Shulman, David) Modified text on 2/12/2010 (jz). (Entered: 02/11/2010)
Summons Issued as to Matthew Clark, Patricia Englund, Axel Henry, Joe Neuberger. (kt) (Entered: 02/16/2010)
27 ANSWER to Amended Complaint (Second) by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, Joe Neuberger, Bill Snyder. (Attachments: # 1 Certificate of Service) (Tindal, Susan) (Entered: 02/22/2010)
28 WAIVER OF SERVICE Returned Executed filed by Brook Bernini. Matthew Clark waiver sent on 2/22/2010, answer due 4/23/2010. (Shulman, David) (Entered: 04/07/2010)
29 WAIVER OF SERVICE Returned Executed filed by Brook Bernini. Patricia Englund waiver sent on 2/17/2010, answer due 4/19/2010. (Shulman, David) (Entered: 04/07/2010)
30 WAIVER OF SERVICE Returned Executed filed by Brook Bernini. Axel Henry waiver sent on 2/17/2010, answer due 4/19/2010. (Shulman, David) (Entered: 04/07/2010)
31 WAIVER OF SERVICE Returned Executed filed by Brook Bernini. Joe Neuberger waiver sent on 2/17/2010, answer due 4/19/2010. (Shulman, David) (Entered:

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 12 of 17

07/12/2010 07/13/2010 08/31/2010 09/01/2010 09/02/2010 09/02/2010 09/15/2010
09/15/2010
09/16/2010
09/16/2010
09/16/2010
09/16/2010

04/07/2010)
32 STIPULATION to Extend Scheduling Order deadlines by all parties. (Attachments: # 1 Certificate of Service)(Tindal, Susan) Modified text on 7/13/2010 (jz). (Entered: 07/12/2010)
33 AMENDED SCHEDULING ORDER: re: Stipulation 32 to amend scheduling order. Discovery due by 9/15/2010. Motions (non−disp) due 9/15/2010. Signed by Magistrate Judge Jeanne J. Graham on 7/3/10. (RLR) (Entered: 07/13/2010)
34 JURY TRIAL NOTICE − Jury Trial set for November 1, 2010 @ 9:00 AM in Courtroom 7D (STP) before Judge Paul A. Magnuson. (see notice for deadlines)(smr) (Entered: 08/31/2010)
35 NOTICE OF ( Settlement Conference set for 10/14/2010 09:30 AM in Courtroom 3B (STP) before Magistrate Judge Jeanne J. Graham.) Signed by Magistrate Judge Jeanne J. Graham on 10/14/10. (RLR) (Entered: 09/01/2010)
36 MOTION for Summary Judgment by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, Joe Neuberger, Bill Snyder, St. Paul, City of. (Tindal, Susan) (Entered: 09/02/2010)
37 NOTICE OF HEARING ON MOTION 36 MOTION for Summary Judgment : Motion Hearing set for 10/21/2010 10:30 AM in Courtroom 7D (STP) before Senior Judge Paul A. Magnuson. (Attachments: # 1 Certificate of Service)(Tindal, Susan) (Entered: 09/02/2010)
38 AFFIDAVIT of Commander Steven Frazer in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 Placeholder for Ex. A, # 2 Placeholder for Ex. B, # 3 Placeholder for Ex. C, # 4 Placeholder for Ex. D, # 5 Placeholder for Ex. E, # 6 Placeholder for Ex. F, # 7 Placeholder for Ex. G, # 8 Placeholder for Ex. H, # 9 Exhibit(s) I, # 10 Placeholder for Ex. J, # 11 Placeholder for Ex. K, # 12 Placeholder for Ex. L, # 13 Exhibit(s) M, # 14 Certificate of Service, # 15 Certificate of Service of conventionally filed documents)(Iverson, Jon) CONVENTIONAL EXHIBITS FILED IN CLERK'S OFFICE ON 9/20/2010 (RLR). (Entered: 09/15/2010)
39 AFFIDAVIT of Jason Anderson in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 Placeholder for Ex 1, # 2 Certificate of Service, # 3 Certificate of Service for conventionally filed documents)(Iverson, Jon) CONVENTIONAL EXHIBITS FILED IN CLERK'S OFFICE ON 9/20/2010 (RLR). (Entered: 09/15/2010)
40 First AFFIDAVIT of Susan M. Tindal in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 Placeholder for Ex A, # 2 Placeholder for Ex B, # 3 Certificate of Service for conventionally filed documents)(Iverson, Jon) CONVENTIONAL EXHIBITS FILED IN CLERK'S OFFICE ON 9/20/2010 (RLR). (Entered: 09/16/2010)
41 Second AFFIDAVIT of Susan M. Tindal in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 Exhibit(s) C, # 2 Exhibit(s) D, # 3 Exhibit(s) E part 1, # 4 Exhibit(s) E part 2, # 5 Exhibit(s) F, # 6 Exhibit(s) G, # 7 Exhibit(s) H, # 8 Exhibit(s) I)(Iverson, Jon) (Entered: 09/16/2010)
42 Third AFFIDAVIT of Susan M. Tindal in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 Exhibit(s) J, # 2 Exhibit(s) K, # 3 Exhibit(s) L, # 4 Exhibit(s) M, # 5 Exhibit(s) N, # 6 Exhibit(s) O, # 7 Exhibit(s) P, # 8 Exhibit(s) Q, # 9 Exhibit(s) R)(Iverson, Jon) (Entered: 09/16/2010)
43 Fourth AFFIDAVIT of Susan M. Tindal in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 13 of 17

09/16/2010 09/20/2010 09/20/2010 09/20/2010
09/20/2010 09/21/2010
09/29/2010 09/29/2010 10/05/2010 10/07/2010 10/08/2010

Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 Exhibit(s) S, # 2 Exhibit(s) T, # 3 Exhibit(s) U, # 4 Exhibit(s) V, # 5 Exhibit(s) W, # 6 Exhibit(s) X, # 7 Exhibit(s) Y, # 8 Exhibit(s) Z, # 9 Exhibit(s) AA, # 10 Exhibit(s) BB, # 11 Exhibit(s) CC)(Iverson, Jon) (Entered: 09/16/2010)
44 Fifth AFFIDAVIT of Susan M. Tindal in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 Exhibit(s) DD, # 2 Exhibit(s) EE, # 3 Exhibit(s) FF, # 4 Exhibit(s) GG, # 5 Exhibit(s) HH, # 6 Exhibit(s) II, # 7 Certificate of Service)(Iverson, Jon) (Entered: 09/16/2010)
45 AFFIDAVIT of Commander Greg Pye in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Iverson, Jon) (Entered: 09/20/2010)
46 Declaration of John G. Kirkwood in Support of 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Iverson, Jon) (Entered: 09/20/2010)
47 Sixth AFFIDAVIT of Susan M. Tindal in SUPPORT OF 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 Exhibit(s) JJ, # 2 Exhibit(s) KK, # 3 Exhibit(s) LL, # 4 Exhibit(s) MM, # 5 Exhibit(s) NN, # 6 Exhibit(s) OO, # 7 Exhibit(s) PP, # 8 Exhibit(s) QQ, # 9 Exhibit(s) RR, # 10 Exhibit(s) SS)(Iverson, Jon) (Entered: 09/20/2010)
48 MEMORANDUM in Support re 36 MOTION for Summary Judgment filed by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Attachments: # 1 LR7.1 Word Count Compliance Certificate, # 2 Certificate of Service)(Iverson, Jon) (Entered: 09/20/2010)
49 STIPULATION of Dismissal of claims against Bill Snyder by Brook Bernini, Matthew Byrnes, Simon Cecil, Matthew Clark, Andrew Cohen, David Drew, Jr, Kellan Dubbels, Kristofer Dubbels, Patricia Englund, Alana Michelle Exum, Steven Frazer, Bobby Reese Hagy, Jr, Adam Hayden, Adryn Hayes, Axel Henry, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, David Morse, Craig Neef, Joe Neuberger, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Bill Snyder, Ryan Solem, St. Paul, City of, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Bruce Wilkingson. (Tindal, Susan) (Entered: 09/21/2010)
50 ORDER FOR DISMISSAL WITH PREJUDICE − IT IS HEREBY ORDERED that the above−entitled action against Bill Snyder is dismissed with prejudice and on its merits and without costs or disbursements to any party. LET JUDGMENT BE ENTERED ACCORDINGLY. Signed by Judge Paul A. Magnuson on September 27, 2010. (smr) (Entered: 09/29/2010)
51 JUDGMENT (Attachments: # 1 Civil−8th Circuit Pre−Hearing Conference Notice, # 2 Civil Notice − appeal)(jz) (Entered: 09/29/2010)
52 LETTER TO MAGISTRATE JUDGE by Brook Bernini et al.. (Attachments: # 1 Certificate of Service)(Snider, R) (Entered: 10/05/2010)
53 ORDER ON TELEPHONE APPEARANCES AT SETTLEMENT CONFERENCE re 52 Letter to Magistrate Judge filed by Brook Bernini. Signed by Magistrate Judge Jeanne J. Graham on 10/6/10. (RLR) (Entered: 10/07/2010)
54 AFFIDAVIT of David L. Shulman in OPPOSITION TO 36 MOTION for Summary Judgment First filed by Brook Bernini, Matthew Byrnes, Simon Cecil, Andrew Cohen, David Drew, Jr, Kellan Dubbels, Kristofer Dubbels, Alana Michelle Exum, Bobby Reese Hagy, Jr, Adam Hayden, Adryn Hayes, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, David Morse, Craig Neef, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Ryan Solem, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Bruce Wilkingson. (Attachments: # 1 Placeholder for

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 14 of 17

10/08/2010 10/08/2010 10/08/2010 10/08/2010 10/08/2010

Exhibit 1, # 2 Placeholder for Exhibit 2, # 3 Placeholder for Exhibit 3, # 4 Placeholder for Exhibit 4, # 5 Placeholder for Exhibit 5, # 6 Placeholder for Exhibit 6, # 7 Exhibit(s) 7, # 8 Exhibit(s) 8, # 9 Exhibit(s) 9)(Shulman, David) CONVENTIONAL FILING RECEIVED IN CLERK'S OFFICE ON 10/12/10. (RLR) (Entered: 10/08/2010)
55 AFFIDAVIT of David L. Shulman in OPPOSITION TO 36 MOTION for Summary Judgment Second filed by Brook Bernini, Matthew Byrnes, Simon Cecil, Andrew Cohen, David Drew, Jr, Kellan Dubbels, Kristofer Dubbels, Alana Michelle Exum, Bobby Reese Hagy, Jr, Adam Hayden, Adryn Hayes, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, David Morse, Craig Neef, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Ryan Solem, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Bruce Wilkingson. (Attachments: # 1 Exhibit(s) 10, # 2 Exhibit(s) 11, # 3 Exhibit(s) 12, # 4 Exhibit(s) 13, # 5 Exhibit(s) 14, # 6 Exhibit(s) 15, # 7 Exhibit(s) 16, # 8 Exhibit(s) 17, # 9 Exhibit(s) 18, # 10 Exhibit(s) 19)(Shulman, David) (Entered: 10/08/2010)
56 AFFIDAVIT of David L. Shulman in OPPOSITION TO 36 MOTION for Summary Judgment Third filed by Brook Bernini, Matthew Byrnes, Simon Cecil, Andrew Cohen, David Drew, Jr, Kellan Dubbels, Kristofer Dubbels, Alana Michelle Exum, Bobby Reese Hagy, Jr, Adam Hayden, Adryn Hayes, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, David Morse, Craig Neef, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Ryan Solem, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Bruce Wilkingson. (Attachments: # 1 Exhibit(s) 20, # 2 Exhibit(s) 21, # 3 Exhibit(s) 22, # 4 Exhibit(s) 23, # 5 Exhibit(s) 24, # 6 Exhibit(s) 25, # 7 Exhibit(s) 26, # 8 Exhibit(s) 27, # 9 Exhibit(s) 28, # 10 Exhibit(s) 29)(Shulman, David) (Entered: 10/08/2010)
57 AFFIDAVIT of David L. Shulman in OPPOSITION TO 36 MOTION for Summary Judgment Fourth filed by Brook Bernini, Matthew Byrnes, Simon Cecil, Andrew Cohen, David Drew, Jr, Kellan Dubbels, Kristofer Dubbels, Alana Michelle Exum, Bobby Reese Hagy, Jr, Adam Hayden, Adryn Hayes, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, David Morse, Craig Neef, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Ryan Solem, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Bruce Wilkingson. (Attachments: # 1 Exhibit(s) 30, # 2 Exhibit(s) 31, # 3 Exhibit(s) 32, # 4 Exhibit(s) 33, # 5 Exhibit(s) 34, # 6 Exhibit(s) 35, # 7 Exhibit(s) 36, # 8 Exhibit(s) 37, # 9 Exhibit(s) 38, # 10 Exhibit(s) 39)(Shulman, David) (Entered: 10/08/2010)
58 AFFIDAVIT of David L. Shulman in OPPOSITION TO 36 MOTION for Summary Judgment Fifth filed by Brook Bernini, Matthew Byrnes, Simon Cecil, Andrew Cohen, David Drew, Jr, Kellan Dubbels, Kristofer Dubbels, Alana Michelle Exum, Bobby Reese Hagy, Jr, Adam Hayden, Adryn Hayes, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, David Morse, Craig Neef, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Ryan Solem, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Bruce Wilkingson. (Attachments: # 1 Exhibit(s) 40, # 2 Exhibit(s) 41, # 3 Exhibit(s) 42, # 4 Exhibit(s) 43, # 5 Exhibit(s) 44, # 6 Exhibit(s) 45, # 7 Exhibit(s) 46, # 8 Exhibit(s) 47, # 9 Exhibit(s) 48, # 10 Exhibit(s) 49)(Shulman, David) (Entered: 10/08/2010)
59 AFFIDAVIT of David L. Shulman in OPPOSITION TO 36 MOTION for Summary Judgment Sixth filed by Brook Bernini, Matthew Byrnes, Simon Cecil, Andrew Cohen, David Drew, Jr, Kellan Dubbels, Kristofer Dubbels, Alana Michelle Exum, Bobby Reese Hagy, Jr, Adam Hayden, Adryn Hayes, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, David Morse, Craig Neef, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Ryan Solem, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Bruce Wilkingson. (Attachments: # 1 Exhibit(s) 50, # 2 Exhibit(s) 51, # 3 Exhibit(s) 52, # 4 Exhibit(s) 53, # 5 Exhibit(s) 54, # 6 Exhibit(s) 55, # 7 Exhibit(s) 56, # 8 Exhibit(s) 57, # 9 Exhibit(s) 58, # 10 Exhibit(s) 59)(Shulman, David) (Entered: 10/08/2010)

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 15 of 17

10/08/2010
10/08/2010
10/12/2010 10/13/2010 10/13/2010 10/14/2010 10/21/2010
10/28/2010
10/28/2010 11/11/2010 11/11/2010 11/15/2010 11/15/2010 11/15/2010 11/15/2010

60 MEMORANDUM and LR7.1 Word Count Compliance Certificate in Opposition re 36 MOTION for Summary Judgment filed by Brook Bernini, Matthew Byrnes, Simon Cecil, Andrew Cohen, David Drew, Jr, Kellan Dubbels, Kristofer Dubbels, Alana Michelle Exum, Bobby Reese Hagy, Jr, Adam Hayden, Adryn Hayes, Kevin Hundt, Rachel Jackson, Tiana Johnson, Garth Kahl, Jared Lanctot, Michael Larson, Vain Mainstream, David Morse, Craig Neef, Mary Ogle, Tim Phillips, Raphi Rechitsky, Lambert Rochfort, Nick Segner, Ryan Solem, Zach Swift, Andrew Temperante, Michael Ward, II, Rachel Westlund, Nelson Whitmore, Bruce Wilkingson. (Shulman, David) Modified text on 10/12/2010 (jz). (Entered: 10/08/2010)
61 CERTIFICATE OF SERVICE by Brook Bernini re 55 Affidavit in Opposition to Motion, 54 Affidavit in Opposition to Motion, 60 Memorandum in Opposition to Motion, 57 Affidavit in Opposition to Motion, 59 Affidavit in Opposition to Motion, 58 Affidavit in Opposition to Motion, 56 Affidavit in Opposition to Motion. (Shulman, David) Modified text on 10/12/2010 (jz). (Entered: 10/08/2010)
62 LETTER TO MAGISTRATE JUDGE by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, Joe Neuberger, St. Paul, City of. (Attachments: # 1 Certificate of Service)(Tindal, Susan) (Entered: 10/12/2010)
***TEXT ONLY***NOTICE − The Defendants' Motion for Summary Judgment scheduled to be heard on October 21, 2010 at 10:30 am has been rescheduled to a different time slot. The hearing will commence at 11:30 am on October 21, 2010. (smr) (Entered: 10/13/2010)
63 ORDER on defendant officers' telephone appearances at settlement conference. Signed by Magistrate Judge Jeanne J. Graham on 10/13/10. (RLR) (Entered: 10/13/2010)
64 Minute Entry for proceedings held before Magistrate Judge Jeanne J. Graham: Settlement Conference held on 10/14/2010. No settlement reached. (RLR) (Entered: 10/15/2010)
***TEXT ONLY***Minute Entry for proceedings held before Senior Judge Paul A. Magnuson: Motion Hearing held on 10/21/2010 re 36 MOTION for Summary Judgment filed by Patricia Englund, Axel Henry, St. Paul, City of, Joe Neuberger, Matthew Clark, Steven Frazer, Bill Snyder, argued. Motion to Dismiss Granted. This matter is dismissed in its entirety. Order to follow. (Court Reporter Ron Moen) (smr) (Entered: 10/21/2010)
65 MEMORANDUM AND ORDER − IT IS HEREBY ORDERED that: 1. The 36 Motion for Summary Judgment is GRANTED; 2. The Second Amended Complaint (25) is DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. Signed by Judge Paul A. Magnuson on October 28, 2010. (smr) (Entered: 10/28/2010)
66 JUDGMENT (Attachments: # 1 Civil−8th Circuit Pre−Hearing Conference Notice, # 2 Civil Notice − appeal)(jz) (Entered: 10/28/2010)
67 NOTICE OF APPEAL TO 8TH CIRCUIT as to 66 Clerk's Judgment, 65 Order on Motion for Summary Judgment, by Brook Bernini. (Attachments: # 1 COA − Form A, # 2 COA − Form B)(Shulman, David) (Entered: 11/11/2010)
68 CERTIFICATE OF SERVICE by Brook Bernini re 67 Notice of Appeal to 8th Circuit (Shulman, David) (Entered: 11/11/2010)
69 TRANSCRIPT REQUEST by Brook Bernini for proceedings held on 10/21/10 before Judge Magnuson, (Shulman, David) (Entered: 11/15/2010)
70 CERTIFICATE OF SERVICE by Brook Bernini re 69 Appeal Transcript Request (Shulman, David) (Entered: 11/15/2010)
71 TRANSMITTAL OF APPEAL LETTER TO U. S. COURT OF APPEALS, 8TH CIRCUIT, Re: Notice of Appeal to 8th Circuit 67 . (Attachments: # 1 Notice of Appeal, # 2 COA − Form A)(jz) (Entered: 11/15/2010)
72 USCA Appeal Fees received $ 455 receipt number 3007736 re 67 Notice of Appeal to 8th Circuit filed by Brook Bernini. (jz) (Entered: 11/15/2010)

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 16 of 17

11/16/2010 11/18/2010 11/18/2010 11/22/2010 11/30/2010 11/30/2010 11/30/2010 11/30/2010
12/23/2010
01/14/2011 01/19/2011 06/08/2011 01/13/2012 01/13/2012
02/15/2012 03/08/2012
03/16/2012

NOTICE to USCA of subsequent filing in a civil case, Re: USCA Appeal Fee 72 . (jz) (Entered: 11/16/2010)
73 BILL OF COSTS by Matthew Clark, Patricia Englund, Steven Frazer, Axel Henry, John Doe Nos. 1−20, Joe Neuberger, Bill Snyder, St. Paul, City of. (Tindal, Susan) (Entered: 11/18/2010)
74 AFFIDAVIT in Support re 73 Bill of Costs. (Attachments: # 1 Exhibit(s) Exhibit A, # 2 Exhibit(s) Exhibit B, # 3 Exhibit(s) Exhibit C, # 4 Exhibit(s) Exhibit D, # 5 Certificate of Service)(Tindal, Susan) (Entered: 11/18/2010)
75 USCA Case Number 10−3552 for 67 Notice of Appeal to 8th Circuit filed by Brook Bernini. (akl) (Entered: 11/24/2010)
76 OBJECTION to Bill of Costs re 73 Bill of Costs by Brook Bernini. (Shulman, David) (Entered: 11/30/2010)
77 CERTIFICATE OF SERVICE by Brook Bernini re 76 Objection to Bill of Costs (Shulman, David) (Entered: 11/30/2010)
78 NOTICE of Filing of Official Transcript. A total of 1 transcripts are associated with this filing. (RJM) (Entered: 11/30/2010)
79 TRANSCRIPT of Motions Hearing held on 10/21/2010 before Senior Judge Paul A. Magnuson. (21 pages). Court Reporter: Ron Moen (E−mail: Ron_Moen@mnd.uscourts.gov. Telephone: (651) 848−1222). Redaction Request due 12/21/2010. Redacted Transcript Deadline set for 12/31/2010. Release of Transcript Restriction set for 2/28/2011. For information on redaction procedures, please review Local Rule 5.5. (RJM) (Entered: 11/30/2010)
80 COST JUDGMENT in favor of St. Paul, City of, Axel Henry, Joe Neuberger, Matthew Clark, Patricia Englund, Steven Frazer against Adam Hayden, Adryn Hayes, Alana Michelle Exum, Andrew Cohen, Andrew Temperante, Bobby Reese Hagy, Jr, Brook Bernini, Bruce Wilkingson, Craig Neef, David Drew, Jr, David Morse, Garth Kahl, Jared Lanctot, Kellan Dubbels, Kevin Hundt, Kristofer Dubbels, Lambert Rochfort, Mary Ogle, Matthew Byrnes, Michael Larson, Michael Ward, II, Nelson Whitmore, Nick Segner, Rachel Jackson, Rachel Westlund, Raphi Rechitsky, Ryan Solem, Simon Cecil, Tiana Johnson, Tim Phillips, Vain Mainstream, Zach Swift (Attachments: # 1 Taxation of Costs Summary)(TP) (Entered: 12/23/2010)
81 Appeal Remark re 67 Notice of Appeal to 8th Circuit : Sent a copy of Transcript 79 to Court of Appeals. (RLR) (Entered: 01/14/2011)
82 Appeal Remark: Appeal Record Received. Transcript: Vol 1: 1/21/10 Motion Hearing.(MMP) (Entered: 01/19/2011)
83 Appeal Remark: Appeal Record re: Other: DVD for Doc No. 38 and Doc. No 54 received by USCA(MMP) (QC'd by lmb on 6/30/2011). (Entered: 06/08/2011)
84 Opinion of USCA before Judges Colloton, Clevenger, and Benton as to 67 Notice of Appeal to 8th Circuit filed by Brook Bernini: The judgment of the district court is affirmed. (Attachments: # 1 Cover Letter)(jam) (Entered: 01/17/2012)
85 USCA JUDGMENT as to 67 Notice of Appeal to 8th Circuit filed by Brook Bernini: it is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed in accordance with the opinion of this Court. (received electronically from COA) (jam) (Entered: 01/17/2012)
86 ORDER of USCA as to 67 Notice of Appeal to 8th Circuit filed by Brook Bernini. (received electronically from COA) (jam) (Entered: 02/17/2012)
87 ORDER of USCA as to 67 Notice of Appeal to 8th Circuit: The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Murphy and Judge Bye would grant the petition for rehearing en banc. (received electronically from COA) (akl) (Entered: 03/09/2012)
88 MANDATE of USCA as to 67 Notice of Appeal to 8th Circuit filed by Brook Bernini : the formal mandate is hereby issued in the above−styled matter. (received electronically from COA) (jam) (Entered: 03/19/2012)

CaSe: 0:09-cv-2312 As Of: 10/20/2014 03:35 PM CDT 17 of 17

03/16/2012 06/22/2012
11/06/2012

89 NOTICE of ORDER from USCA. (jam) (Entered: 03/19/2012)
90 NOTICE OF : The petition for a writ of certiorari in the above entitled case was filed on June 6, 2012 and placed on the docket June 8, 2012 as No. 11−1490. (Attachments: # 1 Cover Letter)(jam) (Entered: 06/26/2012)
91 NOTICE from the Supreme Court of the United States: The Court today entered the following order in the above−entitled case: The petition for a writ of certiorari is denied. (Attachments: # 1 Cover Letter)(akl) (Entered: 11/07/2012)