Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 1 of 50

UNTED STATES DISTRICT COURT
FOR THE DISTRICT OF MISOTA
FOURTH DIVISION

Kenneth E. Andersen, On behalf of himself and all others similarly

)

situated,

)

)

and

)

Wiliam K. Bulmer, II, On behalf of )

himself and all others similarly

)

situated,

)

Plaintif )
)

vs.

)

)

The County of

Becker, Minnesota,

)

Tim Gordon, in his capacity as Sheriff )

of Becker County, and Joseph H.

)

McArhur, in his capacity as Captain )

in the Becker County Sheriff s

)

Deparment,

)

)
Defendants. )

Case No.
CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED

Plaintiffs Kenneth E. Andersen and Wiliam K. Bulmer, II bring this class action

on behalf ofthemselves and all others similarly situated, and state as follows:

I. INTRODUCTION

1. This class action for damages and injunctive relief is brought pursuant to

42 U.S.C. § 1983 for violations of the plaintiffs' rights, and those of the classes the

plaintiffs represent (collectively, "Plaintiffs"), under the First, Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States Constitution; under Aricle I, Sections 6, 7

and 10 of the Minnesota Constitution; pursuant to 18 U.S.C. § 2510, et seq., for

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violations of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III); for violations of Minnesota Statutes § § 481.10 and 626A; and for violations of Plaintiffs'
rights under both federal and Minnesota common law.

2. Plaintiffs seek injunction of, and redress for, defendants' unlawful and
unconstitutional policy, custom and/or practice of recording privileged and confidential telephone calls between attorneys and! or the attorneys' agents - including investigative agents - and their clients who have been and/or are detained and/or incarcerated in the
Becker County Jail ("Jail"). Plaintiffs also seek injunction of, and redress for, defendants' unlawful and unconstitutional policy, custom and/or practice of

affirmatively informing attorneys/attorneys' agents and detainees/inmates that
attorney/client telephone calls are not recorded via the Jail's Inmate Handbook and via

signs posted at the facilty, when all such calls are recorded unless the attorney's
telephone number is placed on the Jail's "Do Not Record" list. Finally, Plaintiffs seek

injunction of, and redress for, defendants' failure to inform attorneys/attorneys' agents

and detainees/inmates of either the Jail's internal procedure by which attorneys' landline

telephone numbers may be placed on the "Do Not Record" list in order to arrange for

privileged and confidential attorney/client telephone calls, or of

the fact that it refuses to

place the cellular phone numbers of attorneys or any phone numbers of attorneys' agents

on the "Do Not Record" list.

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II. PARTIES

3. Plaintiff Kenneth E. Andersen ("Andersen") is an inmate currently

incarcerated in the Minnesota Correctional Facilty located in Rush City, Minnesota.
Andersen was a detainee/inmate at the Becker County Jail from June 2007 to June 2008.

4. Plaintiff Wiliam K. Bulmer, II ("Bulmer") is an individual residing in
St. Louis Park, Minnesota. Bulmer is an attorney currently licensed to practice in, and in good standing with, the State of Minnesota. Bulmer practices in the area of criminal defense and represented clients, including Andersen, who were detained/incarcerated in

the Becker County Jail from June 2007 to Januar 2008. During Andersen's incarceration
at the Becker County Jail, Bulmer contacted Andersen via telephone to discuss privileged

and confidential aspects of his/her case on a number of occasions. 5. Defendant Becker County is, and was at all relevant times herein, a political
entity charged with the control and supervision of all personnel of the Becker County

Sheriff s Department and the Becker County JaiL.
6. Defendant Tim Gordon ("Gordon") is, and was at all relevant times herein, the duly appointed and acting sheriff of Becker County. As such, Gordon is, and was, a duly appointed agent of Becker County and was authorized to enforce the law, and was
acting under the color of law at all times material to the allegations set forth in this Complaint. All causes of action brought against Gordon are brought in his official

capacity as the sheriff of

Becker County.

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7. Defendant Joseph H. McArhur ("McArhur") is, and was at all relevant

times herein, a duly appointed and acting law enforcement officer in the Becker County
Sheriff s Department. As such, McArhur is, and was, a duly appointed agent of Becker County and was authorized to enforce the law, and was acting under the color of law at all times material to the allegations set forth in this Complaint. All causes of action brought against McArhur are brought in his official capacity as an officer of the Becker County Sheriff s Department.

III. JURISDICTION

8. This Court has original jurisdiction under 28 U.S.C. § 1331 to hear the

claims arising under 42 U.S.C. § 1983 and 18 V.S.C. § 2510, et seq.

9. Because this Court has original jurisdiction over several of the claims and

the claims arising under state law are so related to the federal claims as to form part of

the same case or controversy, this Court has supplemental jurisdiction over those state

law claims pursuant to 28 U.S.C. § 1367.

10. Venue in the District of Minnesota is proper because defendant Becker

County is located in this District, the individually named defendants reside in and are

employed in this District, and the unconstitutional and unlawful activities alleged herein

occurred in this District.

IV. FACTUAL

ALLEGATIONS

A. Kenneth Andersen's Interaction with the Becker County Jail

11. On June 11, 2007, Andersen was arrested and detained in the Becker

County JaiL. Upon arriving at the Jail, Andersen was provided with an "Inmate

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Handbook" for the facilty. A copy of the Inmate Handbook provided to Andersen is
attached hereto as Exhibit 1. 12. The Inmate Handbook sets forth the Jail's policy of monitoring and/or
recording "all non-attorney/client privileged phone calls." Specifically, Section D under the heading "Jail Programs" is entitled "Telephones," and subsection D(3) states "Any non-attorney/client privileged phone calls made from Becker County Jail wil be monitored and!or recorded." See Exhibit 1, p. 9 (emphasis added).
13. The Inmate Handbook does not provide the detainee/inmate with any information regarding how the Jail distinguishes between standard telephone calls which are subject to monitoring and!or recording - and attorney/client privileged and confidential calls which are not to be monitored and! or recorded.
14. Nor does the Inmate Handbookset forth - or even mention - the process by which an attorney and/or detainee/inmate is able to request and arrange for a private,
privileged attorney/client telephone calL.
15. Neither Andersen nor his attorneys, including Bulmer, were informed that a process existed whereby an attorney and/or detainee/inmate could request a privileged and confidential attorney/client telephone call.
16. In addition, after being admitted to the Jail, Andersen observed signs posted
near the telephones reiterating the Jail's telephone policy which was set forth in the Inmate Handbook: "All phone calls and messages to and from the Becker County Jail are monitored and/or recorded. This includes the visiting booths. Exceptions are phone calls made to an attorney." See Exhibit 2 attached hereto (emphasis added).
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17. Shortly after being brought to the Jail, Andersen retained attorney Rory
Durkin ("Durkin") to represent him. Durkin's law office is located in Anoka, Minnesota
- approximately 200 miles from Detroit Lakes, Minnesota where Andersen was II
custody in the Becker County JaiL.
18. Durkin began to investigate Andersen's case and hired investigator Glen Fladmark ("Fladmark") to assist with the investigation. Throughout the summer and early fall of 2007, both Durkin and Fladmark contacted Andersen at the Becker County
Jail by telephone regularly to discuss key aspects of the case - including potential witnesses and exculpatory evidence - and to prepare Andersen's defense.
19. During this time, no one informed Durkin, Fladmark or Andersen that their
privileged attorney/client telephone calls were being monitored and/or recorded. Nor did anyone inform them that the Becker County Jail had an internal policy whereby a request to the Jail was required to have a telephone number placed on the "Do Not Record" list in order to ensure the confidentiality of attorney/client telephone calls.
20. In the fall of 2007, Durkin, Bulmer and Andersen began to suspect that
their telephone calls and the telephone calls between Fladmark and Andersen were being listened to by members of Becker County law enforcement.
21. When Durkin and Andersen discussed their suspicions, Andersen informed Durkin that he learned that it was a "running joke" among the Becker County inmates that Becker County law enforcement listened to the inmates' attorney/client telephone
calls.
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22. Based on the Inmate Handbook and the signs posted by the telephones in the Becker County Jail, Andersen and Durkin believed that their attorney/client

telephone calls had been confidentiaL.

23. After hearing this startling and disturbing 'joke," Andersen and Durkin
investigated the issue and discovered an even more alarming reality - the Becker County Jail had in fact been monitoring and/or recording their attorney client telephone calls and the privileged calls between Andersen and Fladmark.

24. Only at this time, after Durkin, Bulmer, Fladmark and Andersen had been

communicating via telephone for over four months, did they learn of the Jail's internal

policy regarding attorney/client telephone calls.

25. The Jail's policy is to monitor and/or record all detainee/inmate telephone

calls unless a detainee/inmate or attorney specifically requests that certain telephone

numbers be placed on the "Do Not Record" list. This was the first time that Durkin,

Bulmer, Fladmark or Andersen had heard of

the "Do Not Record" list. This policy is not

set forth anywhere in the Inmate Handbook nor is it displayed anywhere in the JaiL.

Instead, it is an "unwritten" policy followed by the Becker County Jail personnel - but

not disclosed to detainees/inmates or attorneys.

26. Until mid-2007, to have a telephone number placed on the "Do Not
Record" list, a detainee/inmate or attorney had to request that a specific number be added to the list. In mid-2007, the process changed slightly due to some softare
upgrades by the private company managing the Becker County Jail telephone systems-
Reliance Telephone Systems, Inc. ("Reliance").

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27. Under the current procedures, a detainee/inmate or attorney generally must

call either Reliance or the Jail to request that specific telephone numbers be placed in the

"Do Not Record" list. Once a request is made, Reliance personnel investigate whether

the telephone number is an attorney number. If the Reliance personnel are satisfied that

the number is a proper attorney telephone number, it is placed on the "Do Not Record"

list. Reliance then places the number in a "free status" in its computer system and the

telephone number is blocked from being monitored or recorded. Becker County Jail

personnel make the final determination regarding whether a telephone number is placed

on and/or remains on the "Do Not Record" list.

28. After learning of the "Do Not Record" list policy and procedures, a

telephone call was made to the Jail to request that the office and cellular telephone

numbers of Durkin, Bulmer, Fladmark and several other attorneys in Durkin's office be

placed on the "Do Not Record" list at the beginning of

December 2007.

29. The Jail initially complied with the request and placed all of the telephone

numbers - even the cellular telephone numbers - on the "Do Not Record" list on

December 3,2007.

30. Approximately three months later, however, Durkin and Bulmer leared
that many of the telephone numbers were no longer on the "Do Not Record" list - and had not been on the list since December 5,2007.
31. Unbeknownst to Durkin, Bulmer, Fladmark or Andersen - because the Jail had failed to inform them of this anomaly - the Jail's internal policy prevents cellular
telephone numbers from being placed on the "Do Not Record" list, even when the

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cellular number is that of a detainee's/inmate's attorney. Similarly, the telephone
numbers of agents of an attorney - such as an investigator hired by an attorney - are not placed on the "Do Not Record" list. Accordingly, on December 5, 2007, the cellular telephone numbers of Durkin, Bulmer and their attorney colleagues were removed from
the "Do Not Record" list. 1
32. Although Durkin's, Bulmer's and their attorney colleagues' cellular
telephone numbers had been removed from the "Do Not Record" list, Becker County Jail personnel failed to inform Durkin, Bulmer or Andersen of this until approximately three months later. During that entire period, Durkin, Bulmer and their colleagues contacted Andersen regularly from their cellular telephones and conversed with him at length and in detail regarding his case, the upcoming Omnibus hearing and his overall defense strategy.
33. All of these cellular telephone attorney/client telephone calls were
monitored and/or recorded by the Becker County JaiL. 34. Durkin raised the violations of attorney/client privilege at an April 14, 2008
Omnibus hearing ("Omnibus hearing") in Andersen's case. At the Omnibus hearing, the facts concerning the Jail's unconstitutional and unlawful policy regarding the monitoring and/or recording of attorney/client telephone calls set forth above came to light.
1 Fladmark's telephone number was not removed from the "Do Not Record" list because the Becker County Attorney had informed Becker County Jail personnel that Fladmark's telephone number could be placed on the "Do Not Record" list. This was an exception to
Becker County Jail's policy. April 14, 2008 Omnibus Hearing Transcript, p. 133, Ins. 17-25. Relevant portions of the Omnibus Hearing Transcript are attached hereto as
Exhibit 3.
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35. During the Omnibus hearing, Durkin stated that is seemed that Becker
County law enforcement was always "one step ahead of us" in the investigation regarding Andersen's case. Exhibit 3, p. 110, Ins. 16-25. "We talk on the phone and we talk about witnesses that we're going to go see. The State wil have interviewed that
witness like an hour beforehand." Id.
36. Durkin stated that be became so concerned with the possibilty that Becker County law enforcement were listening to privileged attorney/client telephone calls that
he arranged a "test." This test consisted of Fladmark callng Andersen and informing him that the next time Durkin visited Andersen, Durkin would "sneak him some drugs." Id. at p. 111, Ins. 9-16. Durkin informed the Court of the results of the "test" after
Fladmark had made the call: "And I tell you, Your Honor, the very next day deputies
started coming up to Mr. Andersen and asking him, hey, when is (the) other lawyer, Rory Durkin, coming up to you?" Id. at p. 111, Ins. 16-20. Durkin went on to admit that he couldn't prove that the telephone calls were monitored and/or recorded and actually
used against Andersen, but concluded that the results of the "test" were "very
suspicious." Id.
37. Later during the Omnibus hearing, Durkin's concerns regarding the
monitoring and/or recording of his and Andersen's attorney/client privileged telephone calls were confirmed by Becker County law enforcement officer, Joe McArhur. McArhur stated that he was in charge of the Jail's telephone system and admitted that the Inmate Handbook does not disclose that attorney/client telephone calls are monitored and/or recorded. Id. at pp. 118, 134.
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38. McArhur further admitted that all Becker County Jail inmate calls are

automatically recorded unless the telephone numbers of the calls are on the "Do Not

Record" list. Id. at p. 122 (emphasis added).

39. McArhur also admitted that neither Andersen nor any of Andersen's

attorneys were ever informed by Becker County law enforcement personnel that

attorney/client calls between Andersen and his attorneys were being monitored and

recorded. Id. at p. 134.

40. McArhur further admitted that he was the individual who made the

decision to remove Durkin's and his attorney colleagues' cellular telephone numbers

from the "Do Not Record" list on December 5, 2007 - and that this decision was based

on the "policy of

the jaiL." Id. at pp. 134-36.

41. McArhur admitted that due to this decision, attorney/client telephone calls

between Andersen and his attorneys' cellular telephones had been recorded by the

Becker County Jail since December 5, 2007. Id. at p. 136-37.

42. It was also disclosed during the Omnibus hearing that Special Agent Dan
Baumann ("Baumann") of the Bureau of Criminal Apprehension - who was a lead investigator for the State in the prosecution of Andersen - was provided with audio copies of Andersen's telephone calls by McArhur and the Becker County JaiL.

Exhibit 3, p. 139-40.
43. Baumann admitted that he listened to the recordings of Andersen's telephone calls, and at times, heard at the very least, the initial portions of telephone calls between Andersen and his attorneys. Id. at p. 140. Bauman fuher admitted that he

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downloaded copies of the telephone calls to the hard drive on his laptop computer,

reviewed the calls, and then copied the non-privileged calls that were relevant to the
Andersen investigation and provided those calls to the county attorney. prosecuting

Andersen - Mr. Zdrazil. Id. at 143-47.

44. At the conclusion of the testimony regarding Becker County Jail's
monitoring and/or recording of Andersen's attorney/client privileged telephone calls,

Judge Irvine castigated Becker County law enforcement for its unconstitutional and

unlawful policy and issued a cease and desist order from the Bench: "Mr. Durkin, I can tell you that no call wil be recorded again on any of those cell phone numbers or land lines to his attorneys, regardless of what happens here. The jail wil stop doing that

immediately." Id. at p. 149. 45. Upon information and belief, the monitoring and/or recording of all

Andersen's privileged attorney/client telephone calls, the failure of Becker County Jail personnel to inform Andersen or his attorneys and their agents of the internal process

and/or procedure to have an attorney's telephone number placed on the "Do Not Record"

list, and the removal of

the cellular telephone numbers of Andersen's attorneys from the

"Do Not Record" list, were performed pursuant to the customs, practices and!or

procedures of

the Becker County JaiL.

46. As admitted by Becker County law enforcement officer Joe McArhur, it is

the policy of the Becker County Jail to refuse to place the telephone numbers of agents

of attorneys - including investigators hired by attorneys to investigate the
detainee's/inmate's case - on the "Do Not Record" list.

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47. Upon information and belief, defendants continue to follow and abide by these unlawful and unconstitutional policies, customs and/or practices at the Becker
County JaiL. 2
B. Wiliam K. Bulmer, II's Interaction with the Becker County Jail
48. Bulmer was a colleague of Durkin's and assisted in representing Andersen
from June 2007 to January 2008 while Andersen was in custody in Becker County JaiL.
49. During the time Andersen was in custody in the Jail, Bulmer contacted Andersen via telephone at the Jail on numerous occasions to discuss his case and defense strategy.
50. Upon information and belief, attorney/client privileged telephone calls between Bulmer and Andersen were monitored and/or recorded by law enforcement
personnel at the Becker County JaiL.
51. At no time during Andersen's incarceration in the Becker County Jail did Jail personnel inform Bulmer, Durkin or Andersen that their privileged attorney/client
3
telephone calls were being monitored and/or recorded.
52. At no time during Andersen's incarceration in the Becker County Jail did Jail personnel inform Bulmer or Andersen that the Jail's internal policy was to monitor and/or
2 With the possible exception of Andersen after Judge Irvine's reprimand from the bench
during the Omnibus hearing. Andersen has since been transferred from the Becker
County JaiL.
3 Durkin's and Andersen's suspicion that their attorney/client telephone calls were being monitored were initially corroborated by other inmates in the Becker County JaiL. Later,
a jail employee confirmed to Andersen that the Jail was indeed monitoring and/or
recording attorney/client privileged telephone calls.
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record all telephone calls - regardless of whether the calls constituted attorney/client privileged communications - unless the inmate or attorney requested that specific telephone numbers be placed on the "Do Not Record" list.
53. At no time during Andersen's incarceration in the Becker County Jail did Jail personnel inform Bulmer or Andersen that telephone calls made using a cellular telephone were not protected under the attorney/client privilege.
54. At no time during Andersen's incarceration in the Becker County Jail did Jail personnel inform Bulmer or Andersen that telephone calls between detainees/inmates and investigators hired by their attorneys were not protected by the attorney/client privilege.
55. At no time during Andersen's incarceration in the Becker County Jail did Jail personnel inform Bulmer or Andersen that a "Do Not Record" list even existed.
v. CLASS ALLEGATIONS

56. Plaintiffs seek to maintain this action as a class action pursuant to Fed. R.

Civ. P. 23. Plaintiffs bring this action, on behalf of themselves and all others similarly

situated, as the representative members of

the following classes:

All detainees/inmates who were held in custody and!or incarcerated in the

Becker County Jail

located in Detroit Lakes, Minnesota, and who had their

attorney/client communications monitored and/or recorded without their or

their attorney's knowledge, at any time in the four years prior to the fiing

of this Complaint through a date to be determined by the court, and all

detainees/inmates who curently are or during the course of this litigation

wil be held in custody and/or incarcerated in that jaiL.

and

All attorneys who represented a detainee/inmate in custody or incarcerated in the Becker County Jail facilty located in Detroit Lakes, Minnesota, and who had their attorney/client communications monitored and/or recorded

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without their or their attorney's knowledge, at any time in the four years prior to the filing of this Complaint through a date to be determined by the court, and all attorneys who currently or during the course of this litigation wil represent persons held in custody and/or incarcerated in that jaiL. Plaintiffs reserve the right to narrow or expand these class definitions following the
discovery period.
57. Prerequisites to a Class Action - Fed. R. Civ. P. 23(a). The prerequisites to
maintaining this action as a class action are satisfied as alleged in Paragraphs 58 through 63 below.
58. Numerosity. While the exact number of the members of the two proposed
classes is unkown at this time, the telephone calls of all inmates are monitored and!or
recorded - regardless of whether the calls are attorney/client privileged calls - unless an inmate or attorney specifically requests that a number be placed on the "Do Not Record"
list. Based on this, the number of individuals in each of the two proposed classes is
estimated to be in the hundreds, and may be in the thousands. It would be impracticable to bring all, or even a substantial percentage of such persons before the Court as individual plaintiffs through traditional joinder.
59. Commonality. There are questions of law or fact common to all members of each proposed class. The common overarching question of law and fact is whether defendants violated Plaintiffs' rights and the attorney/client privilege by monitoring and/or recording attorney/client privileged telephone calls without the knowledge of either the attorney or the client.
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60. Typicality. The Plaintiffs' claims are typical of

the claims of

the members of

their class because: (a) each had their right to the attorney/client privilege and their right to

privacy violated; and (b) their claims are based on the same legal theory as other class

members.

61. Adequacy of Representation. Plaintiffs are adequate representatives of the

two classes because: (1) they are wiling and able to represent their respective classes and

have every incentive to pursue this action to a successful conclusion; (2) their interests are

not in any way antagonistic to those of the other class members; and (3) they are

represented by counsel experienced in litigating complex class actions in federal court.

62. Class Actions Maintainable - Fed. R. Civ. P. 23(b)(2). Class action status is

appropriate in this case because defendants have acted and/or refused to act on grounds

generally applicable to the classes, thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the classes as a whole.

63. Class Actions Maintainable - Fed. R. Civ. P. 23(b)(3). Class action status

also is appropriate because the common questions of law and fact identified above

predominate over questions affecting only individual members. A class action is superior

to other available methods for the fair and efficient adjudication of this litigation. Because

of the relatively small monetary value of each class member's individual claim, few, if

any, class members have an interest in individually controllng the prosecution of separate

actions. To the knowledge of Plaintiffs and their counsel, no class members have

commenced litigation against defendants based on the same or similar allegations as stated

above. It is desirable to concentrate the litigation of the claims in this District because

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defendants are located here. Plaintiffs and their counsel do not anticipate encountering
any unique difficulties in the management of this action as a class action. Finally, requiring members of the two classes to pursue their claims individually would entail

needless duplication and would waste the resources of all paries involved and the Court.

CAUSE OF ACTION I

Violation of

the First Amendment of

the United States Constitution

64. Plaintiffs reallege and incorporate by reference all allegations contained in
the Complaint as if set forth separately in this Cause of Action.

65. Defendants, acting under the color of law, have monitored and/or recorded
detainee/inmate telephone calls at the Becker County Jail with their attorneys and their attorneys' agents, pursuant to policies, customs and/or practices established by the Becker

County JaiL.

66. When detainees/inmates, including Andersen, have come to believe that

Becker County Jail personnel are monitoring and/or recording their attorney/client

privileged telephone conversations, it has produced a serious chiling effect upon what

they are able to communicate to their attorneys via telephone for fear that Becker County

Jail personnel - and ultimately law enforcement personnel and the prosecution - wil be

privy to their attorney/client privileged communications.

67. As a direct and proximate result of severely impeding detainees/inmates from

fully and openly communicating with their attorneys, defendants directly and substantially

have violated the First Amendment right of freedom of speech of plaintiffs and the

members of

both putative classes. This violation is actionable under 42 U.S.C. § 1983.

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Violation of

CAUSE OF ACTION II

the Fourth Amendment of Article I. Section 10 of

the United States Constitution and the Minnesota Constitution

68. Plaintiffs reallege and incorporate by reference all allegations contained in
the Complaint as if set forth separately in this Cause of Action.

69. Based on the language in the Inmate Handbook, on the signs regarding
telephone calls posted in the Jail, and the protections generally afforded attorney/client
privilege, detainees/inmates have had reason to believe that telephone calls with their attorneys or their attorneys' agents would not be monitored and/or recorded, at least until they became aware that such monitoring and/or recording was occurring.

70. Plaintiffs have not consented to the monitoring and/or recording of their
privileged attorney/client telephone calls.

71. Defendants, acting under the color of law, have monitored and/or recorded
detainee/inmate telephone calls at the Becker County Jail with their attorneys and/or their attorneys' agents pursuant to defendants' policies, customs and/or practices.
72. Defendants thereby have directly and substantially violated the right against unreasonable searches of Anderson and the members of the detainee/inmate putative class protected by the Fourth Amendment to the United States Constitution and Aricle I,
Section 10 of the Minnesota Constitution. The former violation is actionable under

42 U.S.C. § 1983.

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Violation of

CAUSE OF ACTION III

the Fifth Amendment of

the United States Constitution

73. Plaintiffs reallege and incorporate by reference all allegations contained in
the Complaint as if set forth separately in this Cause of Action.

74. Based on the language in the Inmate Handbook, on the signs regarding
telephone calls posted in the Jail, and the protections generally afforded attorney/client
privilege, detainees/inmates have had reason to believe that telephone calls with their attorneys or their attorneys' agents would not be monitored and/or recorded, at least until they have become aware that such monitoring and!or recording has been occurring.
75. Through these privileged attorney/client communications, detainees/inmates have discussed all aspects of their cases with their attorneys and/or their attorneys' agents, including evidentiary issues, potential witnesses and defense strategies.

76. Defendants, acting under the color of law, have monitored and!or recorded
detainee/inmate telephone calls at the Becker County Jail with their attorneys and/or their attorneys' agents, pursuant to defendants' policies, customs and/or practices.
77. Upon information and belief, information obtained from these monitored and/or recorded privileged attorney/client telephone calls has been utilzed by Becker County Jail personnel, or provided to Becker County law enforcement personnel, for the purpose of assisting in the prosecution of the detainees' /inmates' criminal cases.
78. As a direct and proximate result of defendants' policies, customs and!or practices, Andersen and the members of the detainee/inmate putative class have suffered

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direct and substantial violations of their Fifth Amendment right against self-
incrimination which is actionable under 42 U.S.C. § 1983.4 CAUSE OF ACTION IV
Violation of the Sixth Amendment of the U.S. Constitution and Article I. Section 6 of the Minnesota Constitution
79. Plaintiffs reallege and incorporate by reference all allegations contained in
the Complaint as if set forth separately in this Cause of Action.
80. Based on the Inmate handbook provisions and the signs posted in the Jail regarding attorney/client telephone calls, the failure of Becker County Jail personnel to provide detainees/inmates with any information regarding the "Do Not Record" list, and
the basic precepts of American jurisprudence regarding attorney/client communications,
the detainee/inmate plaintiffs had a reasonable expectation of privacy in their
attorney/client telephone calls.
81. Defendants, acting under the color of law, monitored and/or recorded
detainee/inmate telephone calls at the Becker County Jail with their attorneys and!or their attorneys' agents, pursuant to defendants' policies, customs and/or practices.
82. As a direct and proximate result of defendants' policies, customs and/or practices, Andersen and the members of the detainee/inmate putative class have suffered
violations of the attorney/client privilege and their right to the effective assistance of
counsel protected by the Sixth Amendment to the United States Constitution and Aricle
4 Defendants' policy, custom and!or practice also constitutes a violation of
detainees' /inmates' right of due process of law under the Fifth Amendment. This claim
wil be addressed in the portion of the Complaint dealing with defendants' Fourteenth
Amendment violations set forth below.
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I, Section 6 of the Minnesota Constitution. The former violation is actionable under

42 U.S.C. § 1983.

CAUSE OF ACTION V

Due Process Violations under the Fifth and Fourteenth Amendments of the United States Constitution and Article I. Section 7 of the Minnesota Constitution

83. Plaintiffs reallege and incorporate by reference all allegations contained in

the Complaint as if set forth separately in this Cause of Action.

84. Defendants' policies, customs and/or practices set forth in this Complaint,

including in Counts I through IV above, have deprived Andersen and the members of the

detainee/inmate putative class of the abilty to have their innocence or guilt fairly

determined. This deprivation violates their privileges and immunities protected by the

due process of law under the Fourteenth Amendment of the United States Constitution

and their libert interest under the Fourth, Fifth and Sixth Amendments of the United

States Constitution protected by the Fifth Amendment of the United States Constitution.

These violations of

their due process rights are actionable under 42 U.S.C. § 1983. This

deprivation also violates their due process rights protected by Article I, Section 7 of the

Minnesota Constitution.

CAUSE OF ACTION VI

Violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 - 18 U.S.C. § 2510. et seii.

85. Plaintiffs reallege and incorporate by reference all allegations contained in

the Complaint as if set forth separately in this Cause of Action.

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86. Defendants, acting under the color of law, intercepted telephone calls of

detainees/inmates at the Becker County Jail to their attorneys and/or their attorneys'

agents, without the consent or knowledge of either participant to the calls and in

violation of

their reasonable expectations.

87. Defendants' actions violated the rights of plaintiffs and the members of

both putative classes under Title III of the Omnibus Crime Control and Safe Streets Act

of 1968 - 18 U.S.C. § 2510, et seq.

CAUSE OF ACTION VII

Violation of Federal Common Law

88. Plaintiffs reallege and incorporate by reference all allegations contained in

the Complaint as if set forth separately in this Cause of Action.

89. Defendants, acting under the color of law, automatically monitored and/or
recorded a large number of detainee/inmate telephone calls at the Becker County JaiL.
90. Upon information and belief, defendants listened to the recordings of
detainees' /inmates' telephone calls. 91. Upon information and belief, a number of these recorded telephone calls
included statements by either the detainees/inmates or the individuals with whom they
were speaking that were favorable to the detainees' /inmates' criminal defense, were
material to either the guilt or punishment of the detainee/inmate, were relevant to the

credibilty of a witness involved in the detainees' /inmates' criminal cases and!or

contained exculpatory evidence.

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92. Defendants provided recordings of relevant telephone calls to the

prosecution in furtherance of the criminal cases against the detainees/inmates, except
that they allegedly destroyed any recordings of telephone calls that were deemed to be attorney/client privileged telephone calls.

93. Neither defendants nor the prosecution in any of the detainees' /inmates'
criminal cases provided copies of the relevant, non-privileged recorded calls to the

detainees/inmates or their counseL.
94. As a direct and proximate result of defendants' policies, customs and!or
practices, the federal common law right of Anderson and the members of the

detainee/inmate putative class to receive any evidence in defendants' or the

prosecution's possession that is favorable or material to their defense, and/or is

exculpatory, has been violated.

CAUSE OF ACTION VIII

Violation of

Minn. Stat. § 481.10. subd. 2.

95. Plaintiffs reallege and incorporate by reference all allegations contained in

the Complaint as if set forth separately in this Cause of Action.

96. Defendants' policies, customs and!or practices, as set forth in this

Complaint, including in Counts I through iv above, have deprived Anderson and the

members of the detainee/inmate putative class of their right to private and confidential

telephone calls with their attorneys and/or their attorneys' agents as guaranteed by

Minnesota law.

97. Defendants' actions constitute a direct violation of

Minn. Stat. § 481.10.

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CAUSE OF ACTION IX Violation of Minn. Stat. § 626A.02.
98. Plaintiffs reallege and incorporate by reference all allegations contained in
the Complaint as if set forth separately in this Cause of Action.

99. Defendants, acting under the color of law, intercepted telephone calls of

detainees/inmates at the Becker County Jail to their attorneys and/or their attorneys'

agents, without the consent or knowledge of either participant to the calls and in

violation of

their reasonable expectations.

100. Defendants' policies, customs and/or practices violated the right of

plaintiffs and members of both putative classes to be free from ilegal wiretaps, and

violated Minn. Stat. § 626A.02.

CAUSE OF ACTION X

Violation of Minnesota Common Law

101. Plaintiffs reallege and incorporate by reference all allegations contained in

the Complaint as if set forth separately in this Cause of Action.

102. Defendants, acting under the color of law, monitored and/or recorded
detainees' /inmates' attorney/client privileged telephone calls at the Becker County Jail with neither the knowledge nor the consent of the participants to the call.

103. Plaintiffs and other class members were not informed of the processes or
procedures whereby attorney telephone numbers could be placed on the Jail's "Do Not Record" list, nor were they informed by Jail personnel that such a list existed.

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104. Upon information and belief, Becker County Jail personnel do not inform plaintiffs and other class members of the processes or procedures - or even the existence of the "Do Not Record" list either in writing or verbally.
105. Based on the protections generally afforded attorney/client
communications, and because defendants did not inform plaintiffs and other class members of the processes and procedures regarding the "Do Not Record" list, it was reasonable for attorneys and detainees/inmates to believe that their telephone calls with clients held in the Becker County Jail would not be monitored and/or recorded, at least until they would have become aware that such monitoring and or/recording was occurrIlg.
106. Defendants' policies, customs and/or practices, as set forth in this
Complaint are a gross intrusion upon the attorney/client privilege and the fundamental right to privacy and seclusion of plaintiffs and the members of both putative classes guaranteed by Minnesota law.
107. Defendants' actions shock the conscience, are patently offensive to reasonable members of society and are actionable pursuant to Minn. Stat. § 466.02.
CAUSE OF ACTION XI Violation of Minnesota Common Law - Misappropriation of
Attornev Work Product 108. Plaintiffs reallege and incorporate by reference all allegations contained in
the Complaint as if set forth separately in this Cause of Action.
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Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 26 of 50
109. Telephone communications between the attorney plaintiffs and their clients
held in custody or incarcerated in the Becker County Jail contained attorney work
product information, including but not limited to, legal analysis and advice regarding
evidence, testimony, potential witnesses and defense strategies relevant to
detainees' /inmates' criminal cases. 110. This attorney work product information is trade secret information in that it
had independent economic value and was not known or readily ascertainable by
defendants, the prosecution in the detainees' /inmates' criminal cases, or anyone who was not privy to the telephone conversation.
111. Attorney plaintiffs and other members of their putative class made every effort to maintain the confidentiality ofthis attorney work product information.
112. Upon losing its confidential and privileged status, the value of attorney work product information is severely diminished. This is especially true in the criminal
defense context when attorney work product information is disclosed to law enforcement personnel and!or the prosecution involved in the case.
113. Upon information and belief, attorney work product information obtained
from defendants' improper policy of monitoring and/or recording privileged
attorney/client telephone calls was utilzed by Becker County Jail personnel, or provided
to Becker County law enforcement personnel, for the purpose of assisting in the
prosecution of criminal cases of detainees/inmates represented by the attorney plaintiffs.
114. Defendants' policies, customs and/or practices, as set forth in this
Complaint caused the misappropriation of attorney plaintiffs' work product, severely
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limited the attorney plaintiffs' abilty to prepare a defense on behalf of their clients and

substantially lessened the value ofthe attorney plaintiffs' efforts.

115. Defendants' actions have caused the wrongful acquisition, misappropriation

and/or use of attorney work product information obtained from privileged attorney/client

telephone calls, and have damaged plaintiff attorneys by devaluing their work product

both substantively and economically.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs, individually and on behalf of the proposed classes, pray

for judgment as follows:

A. That this Court certify the two proposed classes and appoint named plaintiffs

as representatives of

the two classes respectively, and that plaintiffs' counsel be designated

as Class Counsel for both classes;

B. That defendants' policies, customs and/or practices, as set forth above, be

determined and adjudged to be in violation of the Constitution of the United States and the

Minnesota Constitution;

C. That defendants' policies, customs and/or practices, as set forth above, be

determined and adjudged to be in violation of federal and Minnesota wiretap statutes;

D. That defendants' policies, customs and/or practices, as set forth above, be

determined and adjudged to be in violation of Minnesota statutes regarding attorney/client

communications with individuals in custody in Minnesota correctional facilties;

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Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 28 of 50

E. That defendants' policies, customs and!or practices, as set forth above, be
determined and adjudged to be in violation of federal and Minnesota common law
regarding invasion of an individual's right to privacy;

F. That this Court enter a temporary restraining order and preliminary and

permanent injunctions ordering defendants to refrain from continuing the policy of
improperly monitoring and/or recording attorney/client telephone calls as set forth in this Complaint;
G. That this Court also enter preliminary and permanent injunctions ordering defendants to revise the Inmate Handbook and the signage in the facilty to properly inform detainee/inmates of the processes and procedures whereby . attorneys' and
attorneys' agents' telephone numbers are placed on the "Do Not Record" list, and ordering defendants to properly inform attorneys callng the Jail or entering the facilty of these same processes and procedures verbally and in writing;

H. That the plaintiffs and members of the two classes be awarded such other and
further legal and equitable relief as may be found appropriate and as the Court may deem

Just or equitable;

i. That the plaintiffs and members of the two classes be awarded monetar

damages, including presumed, special and general damages to be determined at trial;

J. That the plaintiffs and members of

the two classes be awarded all applicable

pre-judgment and post-judgment interest;

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K. That this Court award plaintiffs and the members of the two classes their class action contingency attorneys' fees, expenses and costs, or in the alternative, their
attorneys' fees, expenses and costs pursuant to 42 U.S.C. § 1988; and

L. That this Court award plaintiffs and members of the two classes such other

and further relief as the Court deems just and equitable.

DATED: October 15,2008

Respectfully submitted,

SPRENGER & LANG, PLLC

s/ Jetfev A. Abrahamson Mara R. Thompson (MN No. 196125) Dan Bryden (MN No. 302284)
Jeffrey A. Abrahamson (MNNo. 338187) SPRENGER & LANG, PLLC 310 Fourth Avenue S. Suite 600 Minneapolis, MN 55403 Telephone: (612) 871-8910 Fax: (612) 871-9270
Steven M. Sprenger (DC No. 418736) SPRENGER & LANG, PLLC 1400 Eye Street, N.W. Suite 500 Washington, DC 20005 Telephone: (202) 265-8010
Fax: (202)332-6652
Attorneys' for Plaintif

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...
/". ~
io

BECKER COUNTY DETENTION FACILITY

m

):(:
C;.:."

INMA TE

HANDBOOK

THESE HANDBOOKS ARE JAIL PROPERTY DOlOT DEFACE
(LEAVE ON DAYROOM TABLE WHEN NOT IN USE)

~~
, .INTRODUCTION
You have either been sentenced to the Becker County Jail, are here for a pretrial detention or you were brought here to be housed by another law enforcement façilty. Duritig the booking progress, the Correctional Officer
gae-.you this handbook:This handbook is to guide and
benefit you during your stay. This handbook contains the basic information you need to know while you are here, The rules adopted by the Becker County Jail are meant to insure a safe, secure and clean environment within the detention area. This 'handbook wil help you to understand what is expected of you and what will happen if you fail to obey the rules. If you have any guestions about the contents of this handbook, ask a Correctional Officer.
___ 1

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 30 of 50

~

"

(1 )

INMATE RULES OF CONDUCT:

Violation of the following inmate rules of conduct will result in disciplinary action.

1.You will at all times show respect for the well-being of all persons and property in the jail, and conduct yourself in an orderly manner.

2.You will use moderate voice tones at all times and

refrain from loud talking, singing, unnecessary noise, or

disruptive behavior in all

living and program areas and

visiting.

3.Y ou will resolve all differences and conflicts in a
peaceful, orderly and non-aggressive manner.

4.You will obey all direct orders given by the jail staff.

S.You will not enter offce areas or personnel

living

areas, or use jailor other inmate's property only with
the permission of the occupant, owner, or staff.

6. Each inmate is required to clean his/her cell or sleeping area at the scheduled times and keep it clean.

7. All inmates of a cell"i-ock area will help the cleaning
of the day room and shower areas of their cell block.

8. All bedding & mattresses will remain in the sleeping area and beds will be made each morning. (ALL BEDDING TUCKED INTO BUNK.) You are responsible for your bedding and required to turn in the same amount upon your release.

(2) 9. You will not throw candy wrappers or other trash into the toilets, floor drains or on the floors in any areas of the jaiL.
10. You will be issued jail clothing and are required to wear them. You will be dressed at all times when you are not sleeping. The sweatshirt, when worn, will be under the orange top.
11. When entering the jail, you will be assigned a bed. You will not change beds unless YOU have been given permission to do so. You may be changed due to classification,
12. You will not hang or attach anything to the walls (except in the designated area), beds, doors or lighting fixtures. You will not obstruct the view of the cells in any way.
13. If you damage or destroy jail issue items, you will pay for them or be charged with destroying county property. You will not be issued new items until the ruined ones are paid for.
14. Inmates will at no time be disrespectful when addressing Correctional Officers.
15. Inmates will keep cell doors open at all times when not in lockdown, except when dressing and using the toilet.
16. Intercom - for emergency use only. All other inquiries will be addressed directly with staff when at the time of cell checks.

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.
(3)
PERSONAL PROPERTY:
You will not be permitted to keep cash on your person, unless you are a work release inmate. (Work release inmates wil keep their money in their Huber locker)
Your money wil be kept in an account for you.
Personal property brought into the jail will be kept in a locker assigned to you. If you accumulate personal property in your jail cell exceeding what the jail feels you should have in your possession, the property will be taken and put in your locker. The inmate will be allowed to retain the following items:
1. All legal papers.
2. Approved snapshots/personal photos (no Polaroids). Pictures must fit in the approved 3' X 3' 'black square' in your jail celL.
3. Prescription glasses and contact lenses/case.
4. Medical alert bracelet or necklace, watch, wedding band.
5. Soft cover address book.
6. Study materials - Educational Huber Release, religious reading material, (after inspection)
7. Dentures.
8. Items sold on the canteen.
9. Hygienic items.
10. Mail

(4) 11. Items approved by the Chief of Corrections or the Assistant Chief of Corrections. Inmates will be responsible for their personal property retained in the
jaiL.
All reading material brought in to an inmate's jail cell from outside the jail, becomes property of the jaiL. Religious material is excluded.
Any property left upon your release will be disposed of within 30 (thirty) days,
INMATE ISSUED PROPERTY:
All inmates are issued the following facilty property:
1. One (1) uniform top 2. One (1) uniform bottom 3. One (1) pair underwear 4. One (1) pair of socks 5. One (1) pair of sandals 6. One (1) pillow and case 7. Two (2) sheets 8. Two (2) blankets 9. One (1) towel
10. One (1) sweatshirt
Each cell is furnished with a mattress.
You are held liable for all damaged to or loss of items assigned to you.
In instances where safety and security of the facility are threatened, the Jail Staff may remove inmates' clothing, bedding and or linen if deemed necessary.

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(5)
Clothing, bedding and or linen wil be returned to the
inmate as soon as it is reasonable to believe that the
behavior that caused the action will not be continued.

LAUNDRY SCHEDULE:

A Correctional Officer wil bring the laundry cart to each cell-block area. The clothing exchange will take place sometime after the evening meal, when it is convenient for the Correctional Officer. The schedule is as follows:

AREAS

LINEN/PERSONAL PERSONAL

Dorms 1 & 2

Sunday

Thursday

Blocks Ai B, G, H & Max 1
Blocks C, D, E, F
& Max '2

Monday Tuesday

Friday Saturday

NO EXCHANGE ON WEDNESDAY

PERSONAL CLEANLINESS:

1. All inmates are required to shower at least once per day.

2. Clothing and bedding are to be kept as clean as possible.

3. Initial toilet articles will be issued when you enter the jail, (1 each toothpaste, toothbrush, soap, and
comb). Shampoo and other personal items are
available on the canteen cart. Indigent inmates may request personal hygiene items from the canteen cart.

(6) 4. The Correctional Officer will issue shaving supplies each morning at the morning med. round. When inmates are finished with the shaving supplies they are to place them on the food port, The Correctional Officer puts shaving supplies away by 9:00 each morning. You may request a new razor when you feel you need one.
5. A finger nail and toe nail clipper will be available in each cell block during morning meds only when the razors are out. An electric hair clipper available also
upon request.
6. Inmate cells and dayrooms will be kept free of any writing on the walls. There wil be no defacement of county property. Formal charges may result if property is defaced.
7. Toilet paper will be given out as needed at one of the four daily med, times (inmates must turn in empty roll)
8. Feminine hygiene items are available upon request,
and at the regular med. times.

SCHEDULED ROUTINE:

1. At 6:00 AM. - 6:15 AM., a formal count of all inmates will be taken. Cells wil be unlocked at this time.

2. At 6:30 AM. all

lights will be turned on high, inmates

shall arise at this time and make their beds.

3. At 7:00 AM. breakfast will be served. Inmates will be UP and dressed when breakfast trays arrive. Each inmate will pick up his/her own tray unless the

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(7) Correctional Officer has given prior approvaL. All meals will be eaten in the dayroom.
4. The medication cart will go around after trays have been collected from each meal of the day.
07:30 12:30 17:30 22:30
5. Inmate's recreation and library will be available between 10:00 AM. and 10:00 P.M. daily. Times will be posted in each dayroom of the cell-block.
6. Lunch will be served at 11 :45 AM. Inmates wil be
dressed when the trays arrive.
7. Supper will be served at 4:30 P.M. Inmates will be dressed when trays arrive.
8. Lock down at night will be at 11 :00 P.M. daily. Cell areas and tables will be cleaned before lock down.
9. Cleaning supplies wil be brought around on
Mondays, Wednesdays and Fridays in the afternoon. All inmates are expected to clean their cells, and
should help with the cleaning of the dayroom.
JAIL PROGRAMS
A. TELEVISIONS:
Televisions will be furnished in each cell-block. Each cell-block is responsible for the television assigned to them. Any misuse of or damage to the television will cause it to be removed. The televisions are subject to the following rules:

(8) 1. The volume will be kept at a reasonable leveL.
2. There will be no fighting over the channel selections, majority rules.
3. The television will be shut off at 11 :00 P.M. at lock down at night and turned on in the morning at 6:30 AM, THIS INCLUDES DORMS 1 & 2.
4. The remote control for the television will be left on
the dayroom table when not in use.
5. Any violations will be cause for suspension of the television privileges, (24 hours for the first offense, one week for the second offense, and one month for the third offense.) Remember, you are not the only one in the cell-block area. Your abuse will cause the loss of
the television for everyone in that cell-block area.
6. The Correctional Officer may restrict the hours of the television viewing time based upon the compliance with
the rules by the inmates.
B. LIGHTS:
1. Lights will be turned on at 6:30 AM. every morning and will be turned off at 11 :00 P.M. daily.
2. Security lights wil remain on 24 hours a day.
3. Covering any of the lights or blocking any of the air vents with any sort of material wil be considered a minor jail offense.

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(9) C. CANTEEN:
1. Inmate's money will be kept in a jail account upon
entering the jaiL.
2. Inmates with money on account will be offered the privilege to purchase items from the canteen. MONEY MUST BE IN YOUR ACCOUNT ON THE DAY PRIOR TO INSURE CANTEEN PURCHASES.
3. There will be absolutely NO CREDIT.
4. The canteen slips will be given out on the afternoon shift, on Monday, Wednesday, and Friday and orders filled and delivered after the evening meaL.
5. Money WILL NOT be transferred from one inmate's
account to another.

D. TELEPHONES:

1. Telephones will be located in each cell-block dayroom.

2. Telephone calls wil be allowed daily during unlocked
status.

3. Any non-attorney/client privileged phone calls made
from the Becker County Jail wil be monitored and/or recorded.

4. All phone calls are outgoing only and will be made collect, or with a phone card purchased in the jaiL.

5. Inmates will

limit phone calls to a reasonable length

of time, there by allowing other inmates access to the

phone.

(10) 6. No yellng or profanity wil be allowed while on the phone.

7. NO INCOMING MESSAGES OR CALLS WILL BE

ACCEPTED. There is voice

mail set up within the

system for you to use and check messages. Messages

may be left for you at this number:

847-9914

8. Abuse of the phone or failing to follow the listed rules will result in the loss of telephone privileges.

9. Telephones are turned on at 6:30 A.M. in the morning and shut off at 11 :00 P.M. at lockup.

10. Inmates WILL NOT be allowed access to the booking phone except in emergencies with prior approval from the Chief of Corrections, Assistant Chief of Corrections.

11. Phone cards may be purchased for $10.00 at any time a Correction Officer has the time; or may be purchased on the canteen cart.

E.MAIL:
1. Inmates will be allowed to receive and send out mail Monday thru Friday. THERE IS NO MAIL PICK UP OR DELIVERY ON WEEKENDS OR HOLIDAYS.
2. You can send and receive as many letters as you want.
3. All incoming mail will be opened and inspected for contraband, but not read, If you object to this rule, your

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(11) mail wil be put in your locker with your personal property until you are released from jaiL.
4. Any cash will be removed and credited to your account. (NO PERSONAL CHECKS WILL BE ACCEPTED; THESE WILL BE LISTED ON YOUR PERSONAL PROPERTY AND PUT IN YOUR LOCKER) Money orders will be given to the inmate to sign before applying it to their account.
5. Letters from attorneys and public news media will be delivered unopened. If contraband is suspected, these letters will be opened in the presence of the inmate and
inspected.
6. Stamps, envelopes, and paper are sold on the canteen cart.
7. If you have no money, you will be provided with the sufficient paper and postage (*) to maintain reasonable contact with:
1. Attorneys 2. Government officials 3. Court officials (*) one stamp on Sunday, one stamp on Thursday
during canteen for personal mailngs
8. After your release, your mail will be returned to the
sender.
9. Incoming mail will be distributed within 8 hours of receipt by the jail staff.

(12) 10. Your address here is:
INMATE'S NAME P.O. BOX 702 DETROIT LAKES, MN 56502
(You must list your first and last name on all outgoing mail or it will not be delivered)
F. VISITING:
Visiting hours are:
MALE: Wednesday - 7:00 P.M. to 9:30 P.M. Saturday/Sunday/Holidays - 1 :30 P,M. to 4:30 P.M.
FEMALE: Tuesday/Thursday - 7:00 P.M. to 9:30 P.M. Sunday/Holidays - 8:30 A.M. to 11 :30 A.M.
1. Visits with attorneys, ministers, counselors, police officials, court services are unrestricted within reason in a non-monitored room.
2. All visitors under the age of 18 must be accompanied by a parent, legal guardian, or responsible adult. VISITORS MUST PRODUCE A PICTURE 10 (LIKE STATE ISSUED DRIVERS LICENSE) UPON REQUEST. (NO W.E. 1.0. ACCEPTED)
3. Length of visit will be restricted to 30 minutes. If no other inmates are visiting, length of visit may be
extended.
4. No person under the influence of alcohol of drugs
wil be allowed to visit. .

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(13) 5. Becker County reserves the right to revoke or refuse admittance to any individuaL.
6. When a holiday falls on a regular visiting day, the holiday visiting schedule wil be used.
7. Upon arrival at the jail you will be given a visitor request list. Your list will consist of up to three names* and their birth dates*. Those named wil be the only people allowed to visit you. (Your children under age 18 do not need to be on the list and wil be allowed to visit accompanied by one of the three names you list) You will be allowed to make changes to your list on the first Monday of every month.
*Each visitor listed must have correct full name and date of birth, to avoid any delav in approving the visitor.
G. HUBER (WORK RELEASE) and STS:
1. All Huber or S.T.S. must be approved by the Courts, Jail Programmer, Assistant Chief of Corrections, Chief of Corrections.
2. Your employment, work hours, and workdays will be approved by the Jail Programmer, Assistant Chief of Corrections, Chief of Corrections.
3. There is a $90.00 work release deposit due before you go out on work release. This will be returned to you at the end of your sentence, providing your work release is paid in fulL. Your will be charged a fee of $15.00 for each day you are out on work release. All of the balance must be paid before you are released from jaiL. (All of this money must be cash)

(14) 4. You will take a urine test (U.A.) and pass it before going out on W/R or STS. You will be randomly U.A.'d at your expense of $15.00 per test.
5. Before leaving the jail for work each day, you must clean your area and make your bed.
6. Bag lunches are available if requested at no cost to
the inmate.
H. RELIGIOUS SERVICES:
1. There are church services each Sunday at 10:00 A.M. - Males, 09:00 A.M. - Females
2. Bibles and other religious material shall be made available to inmates who request them.
3. You may request to see a minister, priest or chaplain through the jail administration. You may request to see one in private.
I. RECREATION and LIBRARY:
1. The jail has indoor and outdoor recreation areas.
(a Library)
2. There wil be an assortment of reading material in the library.
3. Provided you are under no restrictions, you will be allowed to spend one hour daily in the recreation areas.

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(15) 4. The scheduled program times for each area are as follows:
8:00 AM. to 9:00 AM. / All Females
9:00 AM. to 10:00 AM. / Blocks C & D Males
10:00 AM. to 11:00 AM. / Blocks E, F, A, & B Males 1 :00 P.M. to 2:00 P.M. / Dorm Males 2:00 P.M. to 3:00 P.M. / Max 1 & Max 2 Males 3:00 P.M. to 4:00 P.M. / Blocks G & H Males
5. The recreation area will be straightened up before returning to your cell area.
6. You will not sit on any chairs that are stacked.

J. EDUCATION:
1. G.E.D. is no longer available.
2. School release for A VTI or college is possible.
3. For details on any schooling, write to the Jail Programmer.

K. PERSONAL PROBLEMS & COUNSELING:

If you are having problems adjusting to the jail routine,

or if you are having problems on the job or

with a family member, contact the Correctional Offcer.

He/She is available to help you the best he/she can be of

assistance to you. If

the problem is within the jail, ask to see

the Assistant Chief

of Corrections or Jail Programmer. If

they cannot solve your problem, you can request to see the

Chief of Corrections or you can write to him. Your letter wil

be delivered unopened. The staffwil help you any way they

can.

(16) L. IN HOUSE WORKERS:
The Becker County Jail allows certain inmates to work under the direction of the staff. To become an in house worker, certain guidelines have been set. You may not have to meet all of these guidelines. The final decision is up to the Chief of Corrections, Assistant Chief of
Corrections, Jail Programmer.
1. You must be sentenced with no outstanding warrants or charges pending.
3. No record of previous escapes attempts or attempted suicide.
4. No disciplinary reports or history of severe drug use.
5. Medical approvaL.
6. Desire to work hard and cooperate respectfully with staff.
7. If you would like to be a trustee, send a written request to the Chief of Corrections, Assistant Chief of
Corrections, Jail Programmer.
M. MEDICAL and DENTAL SERVICES:
Any inmate of the Becker County Detention Facilty
wil be charged a co-payment for over the counter
medication; and medical, dental and mental health care services that the inmate initiated. No inmate will be denied medical care services because of an inability to pay, but a debt will be entered against the inmate's account. If the inmate receives any funds, it will automatically' be deducted from his/her account to pay the outstanding co-payment assessment.

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 38 of 50

(17)
The jail wil use any legal means possible to collect
medical debts incurred by the inmate. There wil be NO charge for staff initiated visits, or TB screening
assessments. Exception: Work release inmates are responsible for
all medication and health care services.
1. The jail nurse will usually be in the jail on Tuesday and Friday.
2. Any inmate desiring medical attention is required to notify the jail promptly. The inmate will fil out a medical request form before seeing the nurse (a $5.00 fee). No inmate will see a doctor without seeing the jail nurse first, unless there is an emergency. Nurse request forms are available on the medication cart.
3. The Correction Officer will dispense all medication.
4. All medication dispensed wil be taken immediately with water in plain view of the Correctional Officer.
DISCIPLINARY PLAN:
Inmates of the Becker County Detention Facility have the right to know what behavior is expected of them and the penalties for misbehavior. The disCiplinary process is fair and systematic so that no person, staff or inmate may plead ignorance of the rules or bias in the procedure. This disciplinary plan is to insure a safe
and secure environment.
A copy of the rules and regulations is also posted in the dayroom of each area and should be read by each inmate upon arrivaL. If the inmate is iliterate, the Jail

(18) Programmer will go over the regulations with that inmate.
DUE PROCESS:
The following is a summary of your rights under due
process:
1. A published list of charges and penalties wil be made available to each inmate.
2. Notice will be given to each resident within twentyfour (24) hours, excluding weekends and holidays, upon determination of a violation. The notice will contain the nature of the alleged violation and penalty determination. The inmate may agree with the penalty and sign the violatiòn form. If the inmate signs the violation form he/she gives up the right to a hearing. If the inmate would like a hearing, he/she will sign the form in the appropriate section. Hearings for major
violations wil be scheduled to occur within one (1) week of notice of being served; however; rescheduling
for good cause within 24 hours notice given to the
inmate counseL.
3. Hearing appeals will not be scheduled sooner than four (4) days from notice given with the exception of the inmate waiving this provision or residing in detention.
4. An opportunity to appear in person before the disciplinary board and to be heard.
5. The right to bring evidence and to request witnesses, up to three (3), in addition to adverse witnesses and to confront and cross examine adverse witnesses.
6. The right to request continuance of hearing for
cause.

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 39 of 50

(19) 7. An impartial hearing board, which will not include the reporting officer, a witness, an investigation officer or anyone who will review the proceedings for an appeaL.
8. A right to counselor counsel substitute throughout
the process.
9. A review of the need for detention prior to the hearing.
10. Stay or postponement of penalty, pending appeal at board of discretion.
11. Case findings including reasons and disposition in writing.
12. The summary of hearing proceedings, for review and appeal wil be available to the inmate.
GRIEVANCE PROCEDURE:
A. A grievance procedure shall exist for inmates to file written complaints concerning personal health and welfare or the operations and services of the Jail Facility. The following procedure shall be used.
1. Present your grievance, in writing, to the on-duty Correctional Officer, he/she wil attempt to rectify the situation.
2. If you are not satisfied with Correctional Officer response, direct a written grievance to the Assistant Chief of Corrections or Chief of Corrections.
3. If you are not satisfied with this response, you can send a written grievance to the Sheriff.

(20) B. All responses to grievances will be in writing and returned to you within five (5) days, excluding weekends and holidays.
C. The use of the grievance process does not prevent you from seeking legal remedies.
D. You must sign any grievance that is submitted.
E. Use of the grievance process wil not be held against
you. Grievance information will not be put in your file.
F. Disciplinary actions are not grievable. You must appeal these decisions.
G. The following shall never be imposed as punishment:
1. Limits on food. 2. Restrictions on religion. 3. Access to lawyers, and other officials involved in the inmate's legal dealings. 4. Medical care.
5. Basic hygiene care. 6. Mechanical restraints or chemical agents.
7. Removal of clothing or jail bedding. 8. Limits on mail correspondence.

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 40 of 50

(21)
DISCIPLINE

PROCEDURE

The Jail Administrator or the Sheriff of the Becker County Sheriffs Office may issue amendments and/or supplements to this code at any time. Notice of any amendments and/or supplements to this code shall be provided to inmates in a manner determined by the Jail Administrator. No amendments and/or
supplements will become effective until fifteen days after publication and notice to the inmates.

All inmates in the custody of the Becker county Jail

shall be subject to this code. All violations of this code

shall be punishable as disciplinary violations. In

addition to being punishable by this code, all inmates in

the custody of the Becker County Jail are subject to all

federal, state and local

laws of the United States. If a

violation of this code occurs, an inmate shall be subject

to provisions of this code as well as to the applicable

law. When an inmate allegedly commits an act covered

by criminal law, the case will be referred to the Becker

County District Court for consideration of prosecution.

VIOLA TIONS/DISCIPLINE PLAN:
Violations are classified as minor or major according to the following descriptions:
Minor Violations:
A Minor violation is an infraction committed by the inmate. It can be resolved without a formal hearing and

(22) sanctions imposed. Minor violations include acts, which do not constitute a present and immediate threat to the security of the facilty, its staff, inmates, visitors, or the inmate who committed the violation. Violation of minor offenses may lead to disciplinary action following the filing of a violation report by any staff member.
Minor Violation Penalties:
1. Loss of recreation privileges. (See below) 2. Loss of canteen privileges. (See below) 3. Loss of visiting privileges. (See below) 4. Loss of TV privileges, (See below) 5. Loss of 'good time'.
*First offense: Up to three days *Second Offense: Up to five days
DEFINITIONS OF MINOR VIOLATIONS:
1. Unauthorized Use of Property: No prisoner shall be in possession of another's personal property or the Becker county property without permission of the rightful owner or authorization of staff. This regulation differs from the possession of contraband and deals with the question of rightful use of property.
2. Unauthorized Use of Telephone: No prisoner shall use a telephone outside of his cell-block without specific authorization from staff on duty.
3. Verbal Abuse: No prisoner shall express profanity
or obscenity directed at another nor make disrespectful remarks against the character of another person, insult or direct insults to another person, or make efforts to

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 41 of 50

(23) intimidate anyone with remarks that have a threatening implication.
4. Creating a Disturbance: No prisoner shall create a
disturbance by yelling, banging utensils, using obscenities or in any other manner create loud
disturbing noises.
5. Use of Intoxicants: No prisoner shall inject or inhale any substance, which has intoxicating effects. Any inmate found to behave in any manner, which demonstrates being under the influence of an intoxicating substance shall be in violation thereof.
6. Vandalism: No prisoner shall destroy or deface the
jail, public or personal property.
7. Gambling: No prisoner shall engage in lottery, betting or chance contracting,
8. Late Return from Release: Any prisoner participating in any release program shall return at the designated time period.
9. Conspiracy: Any prisoner who conspires with
another to commit a violation of jail rules is guilty of conspiracy.
10. Accessory: Any prisoner who assists another or
joins with another in the commission of a prohibited act either during or after the initiation of the act may be found guilty of being an accessory of the fact.
11. Operating Security Devices: No prisoner shall operate, impede, sabotage or render ineffective jail security devices. This includes but is not limited to key slots, cell doors, or other locking mechanisms.

(24) 12. Misuse of Program Areas: This includes the library, kitchen, interview room, visitor's room, and any other functional areas of the jail including any equipment in those areas.
MAJOR VIOLATIONS:
Major Violations include repeated minor rule infractions for a case where a determination is made that the remedy for a minor rule infraction serves no deterrent effect. In addition, rule violations are considered major when the act presents an immediate threat to the security of the facility, its staff, inmates, visitors, or the inmate committing the violations, Such violation will result in informal and formal disciplinary actions. Major offenses may result in administrative segregation in maximum security preceding any charges filed for hearing or formal action, not to exceed seventy-two hours without notice of hearing.
Major Violation Penalties:
1. Filing of formal charges. 2. Lockup, maximum limit of fifteen days. A full review every seven days if problematic. 3. Loss of all release privileges including work release
and recreation release.
4. Loss of all earned 'good time'. 5. Loss of recreation privileges; maximum limit of thirty
days.

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 42 of 50

..

(25)

Major Violation Definitions:

1. Homicide: No prisoner shall kil or contribute in any way to the death of another person.

2. Assault: No prisoner shall assault another by an act,
attempted act, or threat of an act which if carried out, would cause pain, injury, or bodily harm, or fear of pain, injury or bodily harm. No prisoner shall force another to engage in prohibited sexual behavior such as intercourse, sodomy, masturbation of
others, forced masturbation or any homosexual behavior.

3. Holding Hostage: No prisoner shall take or hold
another person and/or subject other persons to control for any purpose whatsoever.

4. Theft: No prisoner shall steal anything from another
or steal any property whatsoever, including removing property out of an assigned area without permission.

5. Smuggling: No prisoner shall transport any
contraband item around, into or out of the jaiL.

6. Arson: No prisoner shall by means of fire or
explosives intentionally destroy or damage property of this jail or risk danger to another person whether he be a prisoner, staff or civilian.

7. Escape or attempted escape: No prisoner shall attempt to escape. Any efforts, which suggest an attempt to leave the jail and its premises without the custody of a superVising person and without legal authorization to do so, shall be considered as an attempted escape. This includes failure to return following any release program.

(26)

8. Riot or Inciting a Riot: No prisoner shall act in a

manner which will

likely lead to the arousal of emotions

on the part of other inmates so as to create the

probabilty of their acting beyond the control of the staff

member in charge.

9. Threatening bodily harm: No prisoner shall behave
in any manner that is threatening to others; behavior such as brandishing a weapon, a menacing
posture, crowding around or gathering during a dispute,
making a threat, veiled or direct or other intimidating remarks. No prisoner being moved between or within any units of the jail shall resist such movement by any threat of physical resistance or passive refusal to move or any intimidating remarks.

10. Possession of contraband: No inmate shall possess illicit and lor unauthorized items considered contraband. Weapons are defined as guns, clubs, knives or other pointed/sharpened or cutting instruments; items not normally considered or controlled in such a manner that use as a weapon can be inferred. Liquor or drugs are defined as any nonprescription chemical agent including alcoholic beverages or their ingredients, prescribed medication in excess of that allowed, any other substance which may be inhaled, injected, or ingested for intoxicating or depressant effect or drug paraphernalia. Escape paraphernalia is defined as rope, keys, tools, clothing, disguises or any other materials, which by nature of location suggest use for escape.

11. Misrepresentation: no prisoner shall falsify a report, or give a false statement to misrepresent a fact as to misappropriate money, services, or instrument to aid such personal property. This includes destruction rendering security devices inoperative.

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 43 of 50

'"

(27)

12. Destruction of Property: No prisoner shall destroy

Becker County Jail public or personal property. This

includes destruction rendering security devices inoperative.

STATUTE #642.08
POLICY: THE INSPECTION AND ENFORCEMENT UNIT OF THE DEPARTMENT OF CORRECTIONS.
The inspection and enforcement unit of the Department of Corrections will interpret MCAR 2.175 E 5 to permit the use of female staff in the supervision of male prisoners. Security has many facets, including but not limited to making security rounds and doing counts in living units and cell halls that can be performed equally well by correctional counselors of either gender. Except in emergency situations, correctional
counselors of the opposite gender shall not be
assigned to the doing of strip searches or pat down
searches. Inmates do not have a right to legal Counsel for
disciplinary proceedings. Baxter v. Palmigiano, 425 U.S, 308 (Supreme Court 1974)'No right to counsel in disciplinary proceedings. Rights to present evidence and to cross-examine may be limited by institution's need for security and order.

(28) FOllOWING ITEMS INMATES ARE AllOWED TO
TAKE TO PRISON:

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 44 of 50

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 45 of 50 ,16.'Becker County jail no longer accepts stamps*, envelopes*, paper*, or magazines of any

kind to be brought in from the outside. As always, inmates wil be able to purchase them* on

the canteen, Magazines have been purchased for inmates to read. Should

any of these items be

sent or brought in, they wil be refused or placed in the inmate's property,

J.... ,
, 17. You wil not throw candy wrappers or other trash into the toilets, floor drains or on the floors in

any areas of the jaiL.

: 18. Meals wil be announced and served by staff. Residents must pick up their own tray, or they wil
not receive the meaL.

¡ 19. Televisions wil be furnished in each block as a privilege. Residents in that block are responsible for the TV, Any damage or misuse of this privilege wil cause it to be removed. Television hours are 06:30 A.M, to 11 :00 P.M. only. This includes Dorms 1 & 2.
~?The yolume wil be kept at a reasonable leveL.
There wil be NO fighting over'the channel selections, majority rules! The remote control for the TV wil be left on the'dayroom table when not in use.

'\ 20. All phone calls and messages to and from the Becker County Jail are monitored and/or recorded. This ipcludes the visiting booths. Exceptions are phone calls made to an attorney.

: 21.. All incoming and outgoing mail is subject to search, except for attorney-client maiL. Leave all , other envelopes unsealed.
,2J2a, iInlmaadtesdwriel psust thisei:r fPirs.tOand. lBastonxam7es0o2n aDll oeutt-rgooinigt mlaaikl, oersit,wMill nNot b5e p6ro5c0es2sed' ;

23, IF YOU ATTEND ANY OF THE FOLLOWING PROGRAMS: CHURCH SERVICES - BIBLE STUDY - G.E.D. - C.D. - A.A.
YOU WILL BE EXPECTED TO PAY ATTENTION, AND NOT BE DISRUPTIVE IN ANYWAY; OR YOU Will NOT BE ALLOWED TO ATTEND.

INMATE CO-PAYMENJ Fq,R HEALTH CARE "

Any inmate of the Becker'County Detention facility wil be charged a co-pay for over-the-counter medication, medical, dental and mental health care services that are inmate initiated. No inmate wil be denied medical care services because of inabilty to pay, but a 'dept wil be entered against

the inmate's account. If the inmate receives any funds, it wil automatically be deducted from

, his/her account to pay for the outstanding cC?-pa-y~ssessment. The co-pay fees are:

~t.:nmate reguest for care (nurse

request):

,$5.00 ) ,'- -', .

'~'~Refiisíngta-g,~,to s~!teduled' ò~,¡'9questea app'oJritments!: ,$5.00( ,--xOver::thê:cou-nter medfcat(ons': (See -Cari-teen (¡st for' amountsJ_,
there,w1Jbé"NO'êha'rge for staffiriitated visits, prescription.medication, TB screening

assessments and regulated fíëãíth 'care'serVlces.- A grievance regarding questions dísputing a co-

pay charge wil be pr~sen!e~ to theF~cility Admiriistrator in writing.

Exhibit 2

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 46 of 50 1

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STATE OF MINNESOTA
COUNTY OF BECKER
State of Minnesota, )
vs. ) Plaintiff, )) )
)
Kenneth Eugene Andersen, )
Defendant. ))

IN DISTRICT COURT SEVENTH JUDICIAL DISTRICT
OMNIBUS HEARING FILE NO. CR-07-171

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TRANSCRIPT OF PROCEEDING The above-entitled matter came on for hearing before the Honorable Peter M. Irvine, Judge of the District Court, in the Courthouse, in the City of Detroit Lakes, County of Becker and State of Minnesota, on the 7th day of March, 2008.

15 16 17 18 19 20 21 22 23 24 ~ ~ 25
':,:"~1

APPEARANCES

Mr. Al Zdrazil
Assistant Attorney General
Bremer Tower, Suite 1800
445 Minnesota Street
St. Paul, MN 55101-21343
and
Mr. Michael Fritz
Becker County Attorney
P.O. Box 749
Detroit Lakes, MN 56502-0749

FOR THE STATE

Rory P. Durkin
Attorney at Law
403 Jackson St., Suite 305
Anoka, MN 55303

FOR THE DEFENDANT

REPORTED BY LAVONNE J. RICHARDS - RMR, CRR, CPE

Exhibit 3

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 47 of 50
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INDEX
WITNESS
DANIEL BAUM
Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil Redirect Examination by Mr. Durkin Recross-Examination by Mr. Zdrazil Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil
GLEN FLADMA
Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil
JOSH BOGATZ
Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil
JOSEPH McARTHUR
Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil Redirect Examination by Mr. Durkin Recross-Examination by Mr. Zdrazil
DANIEL BAUM
Direct Examination by Mr. Zdrazil Cross-Examination by Mr. Durkin

PAGE
8
41 55 60 62 82
86 90
97 98
114 124 134 138
139 143

EXHIBIT DESCRIPTION
NO.
1 Mike Ladue i s Affidavit
2 Jai 1 handbook

MK'D OFF'D REC'D

95 95

95

139 139 139

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 48 of 50
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to-wi t :

The following proceedings occurred,

THE COURT: This is the case of State of

Minnesota versus Kenneth Eugene Andersen. Defendant is

present, and with him is?
MR. DURKIN: Good afternoon, Your Honor.

Rory Durkin, D-U-R-K-I-N, representing Mr. Andersen who

stands present -- or sits presently before you.

THE COURT: You pronounce your last name
Durkin? MR. DURKIN: Durkin. MR. ZDRAZIL: Good afternoon, Your
Honor. Al Zdrazil from the Minnesota Attorney General i s

Office representing the State of Minnesota.

Zdrazil?

THE COURT: And your name is pronounced

MR. ZDRAZIL: Zdrazil, yes, Your Honor,

just like the country Brazil but with a D sound.

THE COURT: All right. Thank you.

And Mr. Fritz is present, as well, from
the County Attorney i s Office.

This is the time and place for an

omnibus hearing. There have been a number of motions

filed by the Defendant, and I have reviewed those

motions and documents attached. And for purposes of

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 49 of 51010

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any other sort of discovery that is appropriate when it

2 is requested. At this point in time we will let you see

3 what you have and we will address it down the road.
4 Anything else?

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MR. DURKIN: I do. I have

Your

6

Honor, I have another motion. I believe I -- you should

7

have a copy of it in your file. I think it is motion to

8 dismiss or to ROR Mr. Andersen or significantly reduce

9 the bail by virtue of Minnesota United States
10 constitution violations, as well as a violation of 11 Minnesota Statute 481.10, and I believe I sent a -- I
12 sent a quick basically statement of facts and a quick

(

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little memo. It could have been a little more thorough

14 but I was pretty pressed nor time when I discovered the

15 crux of what was happening.
16 The bottom line, Your Honor, is I

17

received -- I received

You know, what is funny is

18 Mr. Andersen and I and our team have felt for a long

19 time that our attorney/client privilege has been broken

20 and violated by the State. Your know, we just knew

21 because it seems like everything that we did and have

22 done, the State has been there like one step ahead of

23 us. We talk on the' phone and we talk about witnesses

24 that we i re going to go see. The State will have

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interviewed that witness like an hour beforehand. Just

Case 0:08-cv-05687-ADM-RLE Document 1 Filed 10/15/2008 Page 50 of 50111

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a lot of little things. And at one point it was so bad

2 that I said you know what? Let's do something here.

3 Let's see if they are listening in on our attorney phone

4 calls, or if they are listening on the private, you

5 know, Mr. Fladmark is a necessary third party,
6 attorney/client privilege clearly the case law rule the

7 attorney/client privilege goes with him. Yet I knew

8 that they were listening in on the conversations that he

9 was having. So I said you know what? I said, Glen, why
10 don i t you tell Kenny -- and I had never come up and met
11 him in jail and I hadn i t really seen him in jail. My

12

associate, Mr. Bulmer, did most of that. So I said to

(

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him, I said you know what? Why don i t you tell Kenny

14 that I feel bad for him that he has been jailed for so

15 long. The next time he comes up I am going to bring him
16 some drugs, sneak him in some drugs. And I tell you, 17 Your Honor, the very next day deputies started coming up

18 to Mr. Andersen and asking him, hey, when is other
19 lawyer, Rory Durkin, coming up to you? Very suspicious.
20 Can't prove anything, but it is still super suspicious.

21

So I am preparing for this hearing, la,

22 la, la, and I get this memo which I attached to my
23 motion, oh, and also there was some significant problems

24 back in December with respect to the phone company that

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is used by the jail and getting the right numbers on.

Case 0:08-cv-05687-ADM-RLE Document 1-2 Filed 10/15/2008 Page 1 of 31912

(-, 1

That is why we thought there was a problem as well, but

2 then I get this letter, and it is Exhibit No. 1 attached

3 to'my motion, and I look at the last page and I am just

4 absolutely dumfounded. I mean I am so dumfounded that I

5 don't know what to do because it says cell number

6 612-384-7003, 612-272-0885, and 612-636-2576 were

7 removed from the no record list, meaning that they are

8 subj ect to monitoring and recording from the jail.

9 384-7003, attorney William Bulmer. 612-272-0885, Rory

10 Patrick Durkin. 612-636-2576, Mark Gabriel Giancola, my

11 partner. Since December 5th. And Mr. Andersen has

12 called on weekends. We have spoke for hours on the

(

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weekends and at nights and on my cell phone because we,

14 you know, as attorneys you travel around and are always

15 on the road. That is probably a vast majority of our

16 communications. And I get this motion and I am

17 dumfounded. Now everything makes sense. It is not in

18 the j ail handbook. In fact, what is in the jail

19 handbook is that that information is specifically

20 protected, and it has not been. There is absolutely no

21 way that he can participate in his defense, that I can

22 speak with him, and that I can plan a defense and we can

23 have a fair trial because the jail has been and is

24 listening to our phone calls and monitoring our

(.....

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meetings. And I'll tell you something else, Your Honor.

Case 0:08-cv-05687-ADM-RLE Document 1-2 Filed 10/15/2008 Page 2 of 31913

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If you go up into that jail and you go into those interview room, the little joke between the inmates is, hey, attorney, bring up some duct tape because they monitor us. And you go look at those little monitors and those intercoms and there is little tiny square pieces where people have put duct tape, ripped off, duct tape, ripped it off, duct tape, ripped it off because we
all know. Can I prove it? No. But I do have this in
writing -- in writing that supports my motion. And, if necessary, I mean I believe I subpoenaed Mr. McArthur with respect to that issue, and I think I requested that he bring the jail handbook, the little slip of paper that is above the j ail phone and something else that my brain is not remembering right now, but i will remember it in a moment. So I guess maybe I could call him to the stand right now.
THE COURT: All right. Is Officer McArthur out there? JOSEPH McARTHU, a witness, called by the Defendant, being first duly sworn, testified on his
oath, as follows:
THE COURT: State your name and spell your last name, please.
THE WITNESS: Joseph Henry McArthur, M-C-A-R-T-H-U-R.

Case 0:0J8O-ScEv-P0H56M8c7-AARDTMHU-RRLE Document 1-2 Filed 10/15/2008 Page 3 of 31914

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THE COURT: Mr. Durkin.
BY MR. DURIN DIRECT EXAINATION

Q. You are Joe McArthur; correct?
A. Yes.

Q. My name is Rory Durkin. I represent
Mr. Andersen. I don't believe we have ever met; is that fair?
A. Yes.

Q. But we have spoke on the phone a couple

times; is that correct?
A. Yes.
Q. What -- and I want to be as respectful

as I can, so I am wondering what would you -- is

Captain -- Captain probably the best title for you?

Should I just call you Captain McArthur; is that okay?
A. That would be fine.

Q. All right. Captain McArthur, you are in

charge of the j ail calls, is that correct, or the jail

phone system and right now monitoring the jail calls and

what numbers get put

into the system; is that correct?

A. Yes. Well, yeah.

Q. Can you explain, and maybe to me,

Mr. zdrazil, and the Court how that process works?
A. The process for putting --. Could you

be more, I guess, specific on? Do you mean

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attorney/client calls? Q. i go to j ail for whatever 'cuz I am bad
in court and I have to spend a couple weeks in jail. There is some phone calls that I want to make and some numbers that I want to callout. Do you understand
tha t ?
A. Yes.
Q. Now, some of those numbers might be protected by the attorney/client privilege, my attorney's phone number; is that a fair statement?
A. Yes.
Q. And then others might be subj ect to
recording, the phone calls to my brother or my girl; is that a fair statement?
A. Yes.
Q. Okay. Now, how --? You tell the
inmates at the beginning and give them a handbook; correct? A j ail handbook?
A. Yes, we do.
Q. And that j ail handbook explains the
phone call procedure; correct? A. It explains the phone call procedure,
yes.
Q. And it tells them that phone calls to
their attorney are protected by the attorney/client

Case 0:0J8O-ScvE-P0H56M87c-AARDTMHU-RRLE Document 1-2 Filed 10/15/2008 Page 5 of 31916

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privilege and are not subj ect to recording ¡correct? A. No.

Q. It doesn't say that?
A. No, it doesn 't.

Q. Do you have --? May I have just a

second, please?
A. Yes.

Q. In fact, I requested in my subpoena that

you bring that. Do you have a copy of that handbook?
A. Yes, I do.
Q. Would you mind grabbing it? In fact,
would you mind grabbing --? I think I I am sorry.
I i 11 have it in a second. Here we go. Any and all

records and/or information related to jail calls of

Kenneth Andersen, any and all calls made by Kenneth

Andersen that were

monitor recorded, copy of the inmate

handbook and copy of inmate phone call phone use sign

posted in the jail. Did you bring those things?
A. Yes, I did.

Q. Can you grab them and it would make it

easier for you so you don't keep going back and forth in

getting them?
MR. DURIN: Is that all right, Your Honor? The judge said yeah.
THE COURT: Who has them?

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THE WITNESS: I have them - - I have them
ou t in the hal I way. Can I go get them?

Q. (Mr. Durkin continuing) Do you need a
second?
A. Okay. And what specifically are you
requesting?

Q. Can you go to j ail handbook where it

talks about attorney phone calls, or the inmate
handbook? I am sorry. A. Okay.

MR. DURKIN: May I approach?
THE COURT: You may.

No.3?

Q. (Mr. Durkin continuing) Can you read

A. Yes. It says, "Any non-attorney/client

privilege phone calls made from Becker County Jail will
be monitored and/or recorded."
Q. Basically what you tell the inmates is

that their attorney/client privilege phone calls won't

be recorded; is that correct?

A. It doesn't say anything about that.
Q. But that is what you tell them; is that
correct?

A. Not to my knowledge, no.

Q. SO you don't tell them --? So do you

Case 0:J0O8-ScEvP-0H56M8c7A-ARDTHMU-RRLE Document 1-2 Filed 10/15/2008 Page 7 of 31918

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tell them that you are going to record their attorney

2 calls?

3

A. I don't book people into the jail.

4

Q. Okay. Well, you are in charge of the

5

jail telephone policy; correct?

6
7 I --

A. I am in charge of the jail, yes, but

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please.

Q. And the telephone policy? Yes or no,
A. Yes. Q. Now, do you tell the inmates that you

are going to record their attorney calls?
A. I cannot answer that question.

Q. Is it in -- is it in that inmate
handbook?
A. No. No.
Q. Okay. It just says all

non-attorney/client privileged calls will be recorded;
correct? A. Yes. Q. Okay. Do you make it a habit to

record --? I take that back. Strike that. Now, do you

have a copy of that sheet that hangs over the phone?

A. I am not quite sure what you are talking

about, a sheet.

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Q. Yeah. There is a piece of paper in the

jail area inmate phone?
A. Like this one (indicating)? Q. Yeah. Is that it? May I have it for a

second?

A. There is actually two.
Q. I don't need that. That i s all right.

Forget about that for right now. I am showing you a

letter. On the bottom of it is marked 2830. It is just

what is called a Bates number

1 2830 and 2831. Do you

remember that letter?
A. Yes.
Q. And you wrote that to Mr. Fritz; is that
correct? A. Yes. Q. And he is the county attorney right now

up here in Becker; right?
A. Yes.
Q. Nowi if i could take you to 2831 of that
letter 1 you indicated on No. 31 can you read that for

me?

A. It says 1 "Cell phone numbers of

612-384-70031 612-272-08851 and 612-636-2576 were

removed from the no record list on December 5thi 2007."
Q. Thank you. Now 1 what that means is that

Case 0:0J8O-ScEv-P0H56M8c7-AARDTMHU-RRLE Document 1-2 Filed 10/15/2008 Page 9 of 31920

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means that those numbers are subject to monitoring

2 and/or recording; is that correct?

3

A.

They are subj ect to recording.

4

Q.

But not monitoring?

5

A. Yes and no.

6

Q.

Okay. Can you explain that for me?

7

A.

They -- those calls would be subj ect to

8 random monitoring by jail staff in the usual course of

9 their duties when they randomly look through jail calls.

10

Q.

Because I mean it is fair to say that at

11 some point you guys were ordered or requested or

12 suggested that you monitor Mr. Andersen i s phone calls

( 13 and record them all; isn i t that fair?

14

A.

No.

15

Q.

It is not fair to say that?

16

A. That i S correct.

17

Q. So then I don i t have from you

So is

18 it your testimony right now on the stand that I have not

19 received months and hours and hours and hours of

20 recorded telephone conversations made by Mr. Andersen?

21 Is that your testimony?

22

A.

I believe your question is that we were

23

asked to do it. We were not asked to do it. It is a

24 matter of standard policy and procedure that the

,(,

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recording is done. No one has asked us to record them.

Case 0:0J8O-cSvE-P05H68M7c-ARDTMH-URRLE Document 1-2 Filed 10/15/2008 Page 10 of 31921

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It is just a normal course of what happens up there.

Q. perfect. So it is a normal course of

what happens up there. His phone calls get recorded;
right?

A. Yes, every inmate.
Q. Okay. But his, too, Mr. Andersen's?
A. Yes.
Q. Okay. When they are not on the no

record list, they get recorded pretty much?
A. Yes.
Q. Okay. And the three numbers were taken

off the no record list on December 5th, 2007; is that
correct? A. Yes.

Q. Okay.

MR. DURKIN: May I have just a second,

Your Honor, please?

Q. (Mr. Durkin continuing) Now, when you

make a recording of these calls you generate a report

with the -- with the recording; is that correct?

A. Could you clarify that a little more?

Q.

Sure. You record a

Let i S say you

record a phone call; okay? Are you with me?
A. A little bit.

Q. And then

Well, you just told me you

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record every inmate's phone; right?

A. Recording is done automatically.

Q. Okay. It is done automatically. Oh, so

if it is not on the no record list, it is recorded

automatically; is that --? I am sorry. I misunderstood

that. Is that how that goes then?

A.

I don't know how to answer that. I

don't know what the --. Every inmate -- every inmate's

calls are subj ect to recording unless they are on the no

record list.

Q. Well, now -- and don't get mad or swear. A. No, I am not mad.

Q. i am not trying to give you a hard time.

I am jus t trying to unders tand.
A. Yup.
Q. Because you just said --. And i'll

speak slower. And they just -- sorry. And they just

, said -- you just said that they were automatically

recorded, but then you also said that they were subj ect
to recording. And that is two very different things.

'Cuz if they are automatically recorded, there is no

subj ect to. They are just automatically recorded;
right?

A. I don't remember saying subj ect to, but

they are automatically recorded.

Case 0:0J8O-cSvE-0P5H68M7c-ARDTMH-URRLE Document 1-2 Filed 10/15/2008 Page 12 of 31923

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Q.

Perfect. So you get a phone call that

2 has been automatically recorded and you are going to

3 send that recording to Mr. Zdrazil or Mr. Fritz. You

4 don i t just send them a CD; right?

5

A. No.

6

Q.

You will put a time and a date and who

7 the phone call was to and roughly maybe -- maybe how

8 long the phone call is; fair enough? Sometimes?

9

A.

If I completed a report it would be

10 information subj ect to that, yes.

11

Q.

Perfect. And sometimes you will even --

12

you will get and I don't know, you will get somebody

(

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to transcribe it; is that true?

14
15 yes.

A.

They will be transcribed by officers,

16

Q. Okay. And then that -- okay. So they

17 will be recorded, a report generated, and sometimes a
18 transcript generated as well; correct?

19
20 yes.

A.

Certain calls that do get monitored,

21

Q.

But still automatically recorded; right?

22

A. Yes.

23

MR. DURKIN: I don i t have any further

24 ques tions . Thank you very much.

/
\"

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THE COURT: Mr. Zdrazil.

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MR. ZDRAZIL: Thank you, Your Honor.
BY MR. ZDRAZIL CROSS-EXAINATION

Q. Captain McArthur, the phone sys tern at

the jail -- let's clarify. The jail is here in Detroit

Lakes i is that correct?
A. Yes, it is.

Q. Is the phone system operated by a

private contractor contracted with the county?

A. The

Yeah, the phone -- the phone

system is put in by a private contractor, and they are

the ones that keep it up and running, recording the

calls, different things like that ¡yes.

Q. And they maintain the equipment?
A. Yes.

Q. And where are those recordings then
kept? Where is the hard drive or the tape player?
A. Is up in the jail control.
Q. SO the recording is actually kept here

in Becker County?
A. Yes, that's correct.

Q. Now, you talked about deputies randomly

moni toring phone calls.
A. Yes.
Q. Tell us about that. A. As part of jail security to make

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sure --. There are several, a few different reasons why
the j ai I phone cal I s are moni tored . And, you know, the
main ones are for safety and security of the jail. Sometimes we have inmates that have personal problems and they may be thinking about hurting themselves, and the correctional officers listen to those type
conversations to to discover anything like that that
might be happening, or any plan for escape or anything like that. There is basically two different ways that they listen. There is either a random sampling. There is no scientific method used to that, to my knowledge, what I have been told. It is just that the correctional officer will go in from time to time. They will just go into different cell block recordings and they will just click on different things to see if they would run across a conversation where somebody is talking about those type of things. And then the second type is where if they get specific information about an inmate who is planning to harm themselves, or may be making plans for escape, or to hurt another correctional officer or something like that, then they will start specifically singling out that inmate i s cell block and they will start listening to the majority of the calls from it. And those are the correctional officers i duties in listening to j ail phone calls.

Case 0:0J8O-cSvE-P05H68M7c-AARDTMH-URRLE Document 1-2 Filed 10/15/2008 Page 15 of 31926

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Q. And the correctional officers are people
other than deputies i is that correct?
A. Yes, that i s correct.
Q. They are people who run the j ail and
maintain the jail, move the inmates in and out of the jail and around the jail?
A. Yes, that i s correct.
Q. Now, if --. Is there any policy in the
Sheriff's Department governing those correctional officers as to what they should do if they are listening to a phone call and they become aware that it is a phone call between an inmate and the inmate's attorney?
A. Yes. They are aware and are told that
they are to terminate that call and not listen any
further.
Q. Wi th regard to this case, have you
become aware at any time during this case of any correctional officer who has listened to a phone call between the Defendant and his attorney?
A. No.
Q. Have you heard any information or
observed anybody doing any investigation that you have in any way thought might have been initiated because somebody had overheard a conversation between Ken Andersen and his attorneys?

Case 0:0J8O-cSvE-P05H68M7c-AARDTMH-URRLE Document 1-2 Filed 10/15/2008 Page 16 of 31927

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A. No, I have not.

Q. Now, you mentioned that there has also

been specific monitoring of Ken Andersen i s phone; is

that correct?

A. Yes, that's correct.

Q. And who has specifically been moni toring

hi s phone calls?

A.

It would be myself and Agent Baumann.

Q.

Are you the only two people who have

been specifically listening to Ken Andersen's phone
calls?

A. Yes and no. Yes, we are the main ones

involved in it, and then on occasion when Agent

Baumann - - . Everything that was heard would be

channeled to him. Initially he took all the calls and he went through them. At one point through this I was

filtering out some of the calls. If I heard some, I

would give them to him and then --. Well, let me

restate that 'cuz that is not correct. Initially he

took all the calls, and then around the beginning of

July it was becoming too much for him to do, so I

actually started going through some of the calls then

and just filtering out some of the missed calls and

other inmates that are in the cell and filtered them

out, and then I would

He would stop by the office.

Case 0:0J8O-cSvE-0P5H68M7c-AARDTMH-URRLE Document 1-2 Filed 10/15/2008 Page 17 of 31928

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i would give them those calls, and then he would take

2

them and continue to go through them and monitor them,

3

until about August 16th or August 17th. I would have to

4

refresh my memory in looking at it again. At that time

5 he was advised he told me he was advised he didn It

6

have to do any more constant monitoring of the calls.

7

And so then at that time I agreed to -- i would go

8

through them, listen to the ones where he was talking to

9

other citizens and family members and stuff like that,

10

and then I would report to him then if I heard anything

11

that -- if I thought it was evidentiary value or

12

something like that. And that was starting around the

r

13

17th of August.

14

Q. And then, Captain McArthur, has anybody

15

besides you and Dan Baumann done this initial screening

16

of the Defendant i s calls, clearly once you found the

17

call of interest somebody else might listen to it, and

18

it may have been disclosed to defense, but the initial

19

screening has anybody besides you and Dan Baumann done

20 that?

21

A. No.

22

Q. If you become aware that a phone call is

23

between Kenneth Andersen and his attorneys, what do you

24

do?

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A. I terminate that call. I stop listening

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immediately i and then I delete that call from the system

2

or from

3

Q. Nowi in the process of doing thisi have

4

you heard anything in any phone calls between the

5

Defendant and his attorneys i or for that matter i --.

6

Well i let me ask. What if you find out it is a call

7

between the Defendant and investigator hired by the

8

attorneys i what do you do?

9

A. I don't listen to those either.

10

Q. In the process of this i have you heard

11

anything in those calls i maybe before you realize it is

12

to an attorney or to the investigator? Have you heard

(

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anything that is of any relationship to this case i any

14

information about this casei about the facts of the

15 case i witnesses?

16

A. No.

17

Q. Have you initiated any sort of

18

investigation because of anything you have heard in

19

those calls?

20

A. No.

21

Q. Now i if an inmate or an attorney wants

22

their number blockedi and let's clarified what blocked

23

means. If a number is blockedi am I correct that that

24

is entered into the computer system that records the

25
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calls? And if those numbers are dialedi there is just

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no recording made?
A. That i s my understanding, yes, is that that number is I don i t do the process of putting

those numbers in, but the jail staff does, and then that

number is no longer recorded is

my understanding.

Q. How does an inmate or an attorney get a

number blocked?

A. In order for an inmate to get a number

blocked they have to make a request for that number to

be blocked.
Q. Do they do that in writing or verbally?

A. Well, that has changed from the time

that this has started to the time since he has been in.

And I had talked with the old jail administrator who had

retired in November. The usual way to do it was for the

inmate to actually -- what they would have them do is

have the inmate call Reliance to request it, the number.

Reliance would do the investigation into assuring that

that number is an inmate number, and then -- or excuse

me -- is an attorney number, and then once they confirm

that, then that number would be put in, I think an

attorney in good standing, that it was actually a law
firm i s number, and then that number would be put in as a

blocked number.

Q. And Reliance is the private company that

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manages the phone system?
A. Yes.
Q. How and when did that procedure get
changed?
A. Sometime in 2007, and I don i t know the exact date they did a software upgrade to the Reliance
system. And then what has been explained to me, in
talking to a Reliance representative, is that when that happened, they changed the way that those numbers were
blocked. And at that time Reliance still took the
can take the initial call for the request for the blocking, and then they still do the investigation into it, to make sure it is that proper number and stuff, and
then they put that into Once they confirm it is
attorney i s number, they put it in to a blocked s ta tus
then at that time, well, a free status, and then I think it is automatically blocked. And then at that time the jail staff has to go in and make the final determination, or the jail itself, as to if that number will remain blocked or not blocked.
Q. So that is an additional step over what
there was before?
A. Yes.
Q. Do you know when the reques twas put in,
and specifically I won i t list them all again, but the

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numbers that Mr. Durkin recited to you on the record?

2

A. Yes, I do.

3

Q. Do you know when the reques t was made to

4

block those numbers?

5

A. To my knowledge a reques t wasn't made

6

to --. That request to block those numbers, to my

7 knowledge, was made on December 3rd.

8

Q. And on December 5th they were unblocked?

9

A. Yes. It is my understanding in talking

10 to the j ai i s taf f on thi s, when tha t reques t come in, it

11

was by phone to a member of the jail staff who wrote the

12

numbers down. And then that jail staff person then

(

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called Reliance and gave them those numbers. And then

14

at that time they were still under the impression that

15

that's just what they did. And they called Reliance

16

with the numbers and then Reliance did the stuff behind

17

it. But what Reliance did is Reliance did that initial

18

check, but then they told the jail it is up to you to

19

decide if

you are going to permanently block that number

20

or not. And they had to make the decision at that time

21

to do the final blocking or unblocking of those calls.

22

Q. And because they were cell phones they

23

unblocked them?

24

A. Yes. Sergeant Rostad came to my office

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with the question, and he told me about the change and

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how things are done. And then I said to him, well,
what i s the policy of what you do with these types of
phone calls? And he says we block we block

attorney/client office numbers but we don't block -- we

don't block cell phone numbers.

Q. Why not cell phone numbers?

A.

Of anybody.

Q. Why not cell phone numbers?

A. I asked him that, and he said the reason

is it is again back to a jail security risk, and those

numbers have the potential to be used in ways they

shouldn't be used and so they still want those numbers

not blocked for jail security reasons.

Q. Were there also then on December 5th and

6th two phone numbers, specifically 763-421-1441 and

763-684-0627, that were blocked?

A. I don't remember the numbers

speci fically, but I remember telling them that, to block

the office numbers and to block the private investigator

number because I had been told that even though normally

the private investigator's number is not subject to be

blocked, in this case the County Attorney had allowed

that to happen and so that private investigator's office

number and the two attorneys' firm numbers were put in

there as blocked.

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Q. And are those numbers still being

2 blocked?

3

A. Yes. To my knowledge they haven't been

4

changed.

5

MR. ZDRAZIL: I have no further

6

questions, Your Honor.

7

THE COURT: Mr. Durkin.

8 BY MR. DURKIN REDIRECT EXAINATION

9

Q. Captain McArthur, does it say anywhere

10

in the jail handbook that you record some attorney calls

11

and not others?

12

A. Not to my knowledge, no.

(

13

Q. Did you ever tell Kenneth Andersen

14

or --? Did you ever tell Kenneth Andersen you were

15

recording his attorney calls?

16

A. No.

17

Q. Did you ever tell us you were recording

18 our attorney calls?

19

A. No.

20

Q. You ever call my office and tell us you

21

were recording our attorney calls?

22

A. No.

23

Q. SO you guys just made a random decision

24

to record my calls, my associate's calls, and my

c

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partner's calls with Kenneth Andersen; correct?

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A. I made a decision based on policy of the

2 jaiL.

3

Q. Is that policy in the handbook?

4

A. No.

5

Q. In fact, it says all non-attorney/client

6

privileged calls will be recorded; correct?

7

A. Yes.

8

Q. That's all it says; right?

9

A. That's correct.

10

Q. SO basically --. And if I can refer

11

Mr. Zdrazil and maybe Your Honor to No.5 in my initial

12

Notice of Motion and motions, the big thick one we were

( 13 dealing with on the search warrant issue, page --

14

number --. The first item in that is the actual motion

15

itself. The second item in that is Affidavit of william

16 K. Bulmer, Esquire. No.5. And then i'll just speak to

17

you, if i may, Captain McArthur. So basically our

18

office called you guys up, basically gave you the

19

numbers, the cell phone numbers, correct, and the office

20

numbers; correct?

21

A. Yes. It was

And i believe the

22

investigator's number was on that slip, too, i think.

23

Yes.

24

Q. Perfect. And we were told that those

(

25

numbers were on the block list; right?

Case 0:0J8O-cSvE-0P5H68M7c-ADRTMH-URRLE Document 1-2 Filed 10/15/2008 Page 25 of 319,36

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A.

I have no idea if you were told that.

2

Q.

Okay. Tha t's fine. Bu t then you made

3 the decision, without informing anybody involved, to

4 record the three numbers; correct? Put them on the no
5 record list?

6

A. That's not correct.

7

Q.

You made the decision to put the three

8 attorney cell numbers on the no record list based on

9 policy; correct?

10

A. Yes.

11

Q.

All right. So every single call that

12 Mr. Anders en has made in the pas t , I don i t know, three

(

13

or four months, my math isn i t that good, I am sorry, I

14 am not a mathematician, but for whatever those months

15 are, those phone calls have been recorded; correct?

16

A.

If it was a cell phone, yes.

17

Q.

My cell phone, every conversation,

18 whether we i re talking about the rain, the weather, the

19 case or your testimony tomorrow or a trial, that i s

20 recorded; correct?

21

A.

22

Q.

23 correct?

Yes. Okay. Same with William Bulmer 's;

24

A. Yes.

(,

25

Q.

And the same wi th Mark Giancola;

Case 0:0J8O-cSvE-0P5H68M7c-AARDTMH-URRLE Document 1-2 Filed 10/15/2008 Page 26 of 31937

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1 correct?

2

A.

If that was his cell phone number, I am

3

not sure.

4

Q.

Well, can I --?

5

A.

Those three numbers, yup.

6

Q.

Perfect. And the same with

Oh, and

7 it was your testimony that you decided that you would do

8

us a favor, or Kenneth Andersen a favor, for lack of a

9

better term, you put his investigator's number in the no

10

block -- or the block list; right?

11

A. No, that wasn't what I said.

12

Q. Well, did you --? You blocked

(

13

Mr. Fladmark' s, the private investigator, you blocked

14

his number; correct?

15

A. Yes, I did.

16

Q. But you generally said as a general

17

matter, the Becker County jail doesn't do that because

18 they don i t believe those communications are privileged;

19 correct?

20

A. Yes.

21

MR. DURIN: No further questions.

22

THE COURT: Mr. Zdrazil?

23 BY MR. ZDRAZIL RECROSS-EXAINATION

24

Q. Captain McArthur, and that's because you

(

25

were told by the prosecutors to block that number; is

Case 0:0J8O-cSvE-0P5H68M7c-AARDTMH-URRLE Document 1-2 Filed 10/15/2008 Page 27 of 31938

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that correct?
A. That i s correct.

Q. And just to clarify, Mr. Durkin asked

you if every call to a cell phone number of his attorney
has been recorded, and you said yes.
A. Yes. Q. Has any call of Mr. Andersen to his

attorney's cell phone been listened to?
A. No.

MR. ZDRAZIL: No further questions.
MR. DURKIN: Not right now, Your Honor.

THE COURT: Thank you. You can step

down, sir.

MR. DURIN: Oh, may I have that copy of

the j ail handbook or do you need it? Could we enter

that into evidence?

MR. ZDRAZIL: Your Honor, I have

actually never seen the jail handbook, so I have no

obj ection as long as after I have a chance to look it.
MR. DURIN: Of course.

MR. ZDRAZIL: I can file an obj ection if

I think there is anything in there.
THE WITNESS: I made two of them. THE COURT: Let i s mark one of them as

Exhibi t 2, and we will receive that for purposes of this

Case 0:0D8-AcvN-0I5E6L87B-AADUMM-RLE Document 1-2 Filed 10/15/2008 Page 28 of 31939

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hearing.

Are we now done with this witness?
MR. ZDRAZIL: Yes. (Exhibi t No. 2 was marked for
identification. )
THE CLERK: Exhibit 2 marked.

THE COURT: Counsel, approach, please.

record)

(Discussion held at the bench off the
THE COURT: You are done wi th your

position on the phone calls.
Mr. Zdrazil.

MR. ZDRAZIL: Your Honor, i will call

Dan Baumann.

THE COURT: All right. Just have a

seat, sir. I just remind you that you are still under
oath.

THE WITNESS: Yes, sir.
BY MR. ZDRAZIL DIRECT EXAINATION

Q. Hello again, Special Agent Baumann.
A. Hello.

Q. You --. Is it correct, Special Agent
Baumann, that you have been specifically listening to

phone calls, off and on, between you and Captain

McArthur have been listening to phone calls made by

Case 0:0D8-AcvN-I0E5L68B7A-AUDMM-ARLE Document 1-2 Filed 10/15/2008 Page 29 of 31940

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1

Kenneth Andersen from the jail here in Becker County and

2

prior to him being in Becker County in I believe it was

3

Mahnomen and one other county?

4

A. In Roseau County; correct.

5

Q. And to the extent that you have been

6

listening to those phone calls, have you occasionally

7

heard a call, or more than one call, have you heard

8

calls where it becomes apparent that the Defendant is

9

talking to one of his attorneys or the investigator

10

hired by his attorneys?

11

A. Yes.

12

Q. What do you do when it becomes apparent

(

13

to you that he is talking to an attorney or the

14 investigator?

15

A. I immediately terminated listening to

16

those calls and then looked through the remainder of the

17

calls that I have on that CD. CDs are provided to me to

18

review and identify the other names that are the same

19

and delete those from the --. So I -- ordinarily I take

20

them from the CD, download them onto my computer and

21

then delete the calls that are consistent with attorney

22 calls.

23

Q. So the same number?

24

A. Same number.

(

25

Q. i am sorry?

Case 0:0D8-AcNv-I0E5L68B7A-AUDMMA-NRLE Document 1-2 Filed 10/15/2008 Page 30 of 31941

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A. The same number.
Q. Okay. And has that been true ever since

3

you started listening to phone calls made by the

4

Defendant?

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Case 0:0D8AN-cvI-0E5L68B7-AADUMM-RLE Document 1-2 Filed 10/15/2008 Page 31 of 31942

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but read reports by other investigators in this case?

2

A. Yes.

3

Q. Have you ever in the process of reading

4

those reports ever suspected that a report or that a

5

wi tness was interviewed or that somebody took an

6

initiative because of something that was heard between

7

the Defendant and one of his attorneys or an

8 investigator?

9

A. No.

10

Q. On the other hand, have you in listening

11

to phone calls between the Defendant and say his mother,

12

his sister, Mike Ladue, who is not an attorney, his

(

13

brother, have you heard things that have prompted you to

14

initiate investigations?

15

A. Yes.

16

Q. Have you occasionally heard the

17

Defendant say things along the line when he is talking

18

to, say, his mother, or his brother, my attorney is

19

going to do such and such or is going to talk to so and

20

so?

21

22

A. Yes, they talk about the attorneys. Q. Okay. And when he says that the

23

attorney is going to talk to so and so, do you then go

24

talk to so and so yourself?

(

25

A. Ordinarily, yes.

Case 0:0D8-AcvN-0IE5L68B7A-AUDMM-ARLE Document 1-2 Filed 10/15/2008 Page 32 of 31943

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MR. ZDRAZIL: No further questions,

Your Honor.

THE COURT: Mr. Durkin.

BY MR. DURIN CROSS-EXAINATION

Q. Agent Sieling, (sic) you indicated

that

Do you have a laptop?

A. Yes.

Q. So you use a laptop for your work. Or

at least a lot?
A. Yes.
Q. Because it's a laptop, in the field it

makes it super easy, I guess; right?
A. Yes. Q. So you get a disk from the j ail of phone

calls; correct?
A. Correct.
Q. And then you load those calls

like I

would when I get a disk from Mr. Zdrazil or Mr. Fritz, I

pop it into my laptop; right?
A. Correct.

drive?

Q. And then do you download it to your hard
A. I download it to, yeah, to a file.

Q. You actually download a disk that might

have, like for example, we have gotten, you know, a

Case 0:0D8-AcvN-0I5E6L87B-AADUMM-RLE Document 1-2 Filed 10/15/2008 Page 33 of 31944

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1

bunch of disks from you guys and it will say Andersen

"

2 jail callsi November 14th through November 22nd. And

3 they will bei as I am sure you have listenedi brutally

4 long i tedious hours of j ail calls ¡ fair enough?

5

A. Those are the same calls i yes.

6

Q. Yeah. And then you down --. So you

7 don't -- you don't just listen to them on the diski you

8 download that disk onto your hard drive and create a
9 file?

10

A. Yes.

11

Q.

So you don't need the disk to access

12 those calls at some point ¡ correct?

(

13

A. That i S çorrect. And then I can delete

14 the calls that don't need to be on or reviewed.

15

Q.

So basically then you take the diski you

16 pop it into your laptopi create a file. So then

17 basically you are walking around with your laptop and
18 those attorney/client privileged calls until you listen

19 to that call and delete it ¡ fair enough?

20

A. Yes.

21

Q.

So those calls could be in your car when

22 your laptop is in your car ¡ fair enough?

23

A. Yes.

24

c

25

Q.

Could be down at the BCA¡ fair enough?

A. Yes.

Case 0:0D8-AcvN-0I5E6L87B-AADUMM-RLE Document 1-2 Filed 10/15/2008 Page 34 of 31945

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Q. Sheriff's office?
A. Sure.
Q. Heck, I mean it is theoretically
possible if you had your laptop here today, you could have some of them here right now?
A. Yes.
Q. SO basically you have those
attorney/client privileged calls sitting in your laptop, right, until you have erased them?
A. Correct.
Q. Wherever those laptop is, those sacred
private calls are; right?
A. Yes.
Q. Okay. Now, next question. What about
the disk? Do you destroy the entire disk?
A. Yes.
Q. Well, now let me ask you this. How can
that possibly be true? If you have a disk j ail call,
Kenneth Andersen, November 15th, November 22nd. Call November 23rd at 8 0' clock at night is from Kenny dri ving me crazy on a Friday night for two hours wanting to talk about his case when I just want to do nothing more than have Vodka Red Bull, now
A. I -- I don't maintain those calls.
Q. Right. But they are on the disk; right?

Case 0:0D8-AcvN-0IE5L68B7A-AUDMM-ARLE Document 1-2 Filed 10/15/2008 Page 35 of 31946

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They are on a disk. That is how they get to your hard

2 drive.

3

A.

On a disk that is provided to me by

4 Becker County.

5

Q.

Right. So you listen to the one phone

6 call on your hard drive or you download it to your hard

7 drive. Where is the disk then? There is disk of two

8 weeks worth of calls ¡right?

9

A. Right.

10

Q.

Some of those calls are attorney/client

11 privileged calls ¡right?

12

A. Right.

(

13

14

Q.

Some of those calls aren 't; right?

A. Right.

15

Q. You can i t download from - - or you can i t

16

erase a disk you can i t erase an item from a disk?

17

A. No.

18

Q.

What happens to the disk? Where are

19 those sacred private calls now then?

20

A.

I break them.

21

Q.

So you break the entire disk after you

22 download --? You telling me that you break the entire

23 disk? You download it into your computer and then you
24 break it?

( 25

A.

Download it, make sure it is downloaded,

Case 0:0D8-AcvN-I0E5L68B7A-AUDMMA-NRLE Document 1-2 Filed 10/15/2008 Page 36 of 31947

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and then once I have gone through the information, then

2 that disk is no longer -- it is no longer important to

3 us, and I break that disk because it contains your
4 calls.

5

Q.

Oh, because it contains my calls? Okay.

6

A.

Well, it contains all the calls.

7

Q. And then what? Then how does

8 Mr. Zdrazil get that disk?

9

A.

Mr. Zdrazil should get the disk that

10 contains the Kenneth Andersen calls.

11

12

(

13

14

Q.

How is that disk made?

A.

The edited calls.

Q.

How does that get made?

A.

I make it.

1'5

Q.

You make it?

16

MR. DURIN: Okay. I don i t have any

17 further questions.

18 19 20
21 step down.

THE COURT: Mr. Zdrazil.
MR. ZDRAZIL: No questions, Your Honor.
THE COURT: Thank you, sir. You can

22

MR. ZDRAZIL: The State has no further

23 witnesses, Your Honor.

24
c 25

MR. DURIN: If I can just --. Just if
I can just briefly say something on that issue.

Case 0:08-cv-05687-ADM-RLE Document 1-2 Filed 10/15/2008 Page 37 of 31948

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They can't record my calls. They can 't record his calls. He can't put on a defense knowing that every single phone call made to his attorney is being recorded. That i s -- that is beyond outrageous, beyond outrageous. And then they sit here and they tell
you, well, first they told us, well, we don i t fail to
disclose information, and we don i t lie to get a search warrant. Now we don i t listen to your phone calls. Come on. They are recording every single phone call to myself, my partner, and my associate. That is so violative of statute, per se, hundred dollar -- under the statute a hundred dollar violation per incident. That alone, this violation is egregious and so fundamental that I don i t even know what to say. I have never heard of such a thing. I never have. I am absolutely dumfounded that they have a policy, No.1, of recording all attorney calls that are on a cell phone even though they know they are attorneys. It is not in the handbook. And we are absolutely prejudiced by that and we cannot -- he cannot get a fair trial, and we cannot defend this case and he cannot have a meaningful relationship and meeting with his attorneys. He
simply And if I can have just half a second, Your
Honor. You know, we can i t prepare for trial. We can't plan our defense. We can't speak -- we can't speak to

Case 0:08-cv-05687-ADM-RLE Document 1-2 Filed 10/15/2008 Page 38 of 31949

(

1

each other in private. Every time he calls me now I

2

say, Kenny, I can't talk to you right now. I am afraid,

3 because I know they are recording these calls. This is

4 not -- this is not a jaywalking case. This is a murder
5 case where the rest of his life is at stake, the rest of

6 his life. And they are recording everything he says.

7 That is shameful and outrageous and violative of every

9 Tha t 's al I . 8 Sixth Amendment principle I can think of.

10

THE COURT: Mr. Durkin, I can tell you

11 that no call will be recorded again on any of those cell

12 phone numbers or land lines to his attorneys, regardless

('

13

of what happens here. The j ail will stop doing that

14 immediately. So whatever happens from now on, you can

15 feel very comfortable that those calls will not be

16 recorded.
17 Is that Clear, gentlemen?

18

MR. ZDRAZIL: It is, Your Honor.

19

THE COURT: Any response you want to

20 make, Mr. Zdrazil?

21

MR. ZDRAZIL: Only, Your Honor, and I

22 assume you are going to want a brief on this.

23

THE COURT: I am.

24

MR. ZDRAZIL: I am not going to spend a

~\"

25

lot of time, but I think I have to say that Mr. Durkin

Case 0:08-cv-05687-ADM-RLE Document 1-2 Filed 10/15/2008 Page 39 of 31950

(

1 didn i t even feel this was important enough to ask that

2

the numbers be blocked until December, and it is

3

disingenuous to now be as self-righteous as he is.

4

MR. DURKIN: Because never in my

5

life --. Because we just assumed that attorney/client

6

calls weren i t recorded because that i s how it pretty much

7 goes in every county. And if they are subj ect to

8 recording, they will tell you that they are subj ect to

9

recording. They will let you know. Nobody ever told us

10

and we have been battling with Reliance. So it is a

11

little disingenuous to sit here and say, oh, it means

12

nothing to me because I didn i t ask for it. I asked for

(

13

it and went crazy as soon as we found out. And then, as

14

the Affidavit in my motion indicates, we were told that

15

it was a done deal when we submitted those numbers.

16

And I respectfully request that his bail

17

be reduced to maybe 100 or $200,000 so we can prepare a

18

defense and so he

can have a fair trial. For that

19

reason alone, coupled with everything else, I think that

20

everything is so cumulative at this point that there is

21

really no other alternative, and I know that we are

22

going to have to brief that issue, but I just want to

23

make that right now, Your Honor.

24

(,

25

THE COURT: You have one issue left?
MR. DURIN: We do. It is the change of

Case 0:08-cv-05687-ADM-RLE Document 1-3 Filed 10/15/2008 Page 1 of 3

'IS 44 (Rev. 12/07)

CIVI COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither by lo~l rules of court. This form approved by the Judicial Conference of

replace nor supplementthe fiing and service of,Pleadings orother the United State in September i 974, is rewfe for the use of

paJlrs as required by law, except as provided
the Clerk of Court for the purse ofmitiating

the C1Vil docket sheet. (SEE INSTRUcrONS ON TH RERSE OF THE FORM)

I. (a) PLAINTIFFS
Kenneth E. Andersen, On behalf of himself and all others similarly situated; and Willam K. Bulmer, ", On behalf of himself and all others similarly situated
(b) County of Residence of First Liste Plaintiff Becker (ECEPT IN U.S. PLAINTFF CASES)

DEFENDANTS
The County of Becker, Minnesota, Tim Gordon, in his capacity as Sheriff of Becker County, and Joseph H. McArthur, in his capacity as Captain in the Becker County Sheriffs Department
County of Residence of First Liste Defendat Becker
(IN U.S. PLAINFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE TH LOCATION OF TH
LAND INVOLVED.

(c) Attrney's (Finn Name, Addrs, and Telephone Number)
See Attachement.

Attorneys (If Known)

II. BASIS OF JURISDICTION (Place

an "X"in One Box Only)

i: i u.s. Goverent
Plaitiff

ØI 3 Feder Quetion
(U.S. Goverent Not a Par)

II. CITIZENSHIP OF PRINCIPAL P ARTIES(place an "X" in One Box for Plaitiff
PT DEF PTF DEF (For Diverity Ca Ony) and One Box for Defendant)
Citizen of This State i: i i: I Incorpra or Prcipa Place i: 4 i: 4
of Busine In TIs State

.i: 2 U.S. Gov~rnent
Defendat

i: 4 Diverity
(Indicate Citinsip ofPares in Item III

Citize of Another State

i: 2 i: 2 Incorpra and Prcipal Place of Business In Another State

i: 5 i: 5

Citin or Subject of a
Forei2n COunbV

i: 3 i: 3 Foreign Nation

i: 6 i: 6

~Ji RFEN~mY,:å IV NATURE OF SUIT (place an "X" in One Box Onv)
);;~\i';).lfA~B.~f2 i .i " l !e:"!~iJ:ll..;';-.:a~: .t.1:Wm~l.~'~~~b~~';~~~~;:"~~~~RæS:::)~'t14"L~:t~~-€Ær.t~~~i

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i: 110 Insurce

PERSONAL INJURY

PERSONAL INJURY i: 610 Agrcultue

i: 422 Appe 28 USC 158

i: 400 State Reaportonment

i: 120 Mare

i: 3 I 0 Airplane

i: 362 Peronal Injur - i: 620 Oter Food & Drg

i: 423 Withdrwa

i: 4 I 0 Antitrst

i: 130 Miller Act

i: 315 Airplane Product

Med. Malpractice i: 625 Drg Related Seizue

28 USC 157

i: 430 Ban and Bang

i: 140 Negotiable Instrment

Liabilty

i: 365 Persna Injur -

of Prope 21 USC 881

i: 450 Commerce

i: ISO Rever of Overpayment i: 320 Asault, Libel &

Produt Liabilty i: 630 Liquor Laws

.

.

. .

. i: 460 Deporton

& EnforcementofJudgent

Slander

i: 368 Asbeos Personal i: 640 R.R. & Truck

i: 820 Copyghts

i: 470 Raketeer Influence and

i: i 5 I Medcae Act

i: 330 Federal Employers'

Injur Product

i: 650 Ailine Regs.

i: 830 Patent

Corrpt Orantions

i: 152 RecverY of Defaulted

Liabilty

Liabilty

i: 660 Ocupaona

i: 840 Tradei

i: 480 Conser Crdit

Student Loan (Ecl. Veteras)
i: 153 Recoveiy ofOverpayment

i: 340 Mare i: 345 Mare Product
Liabilty

PERSONAL PROPERTY

SafetylHealth

i: 370 Oter Fraud i: 371 Truth in Lendig

i: 690 Oter .~'t. - D'BlR.

, "

.'" .

!I

~i:i: 490 Cale/Sat TV i: 810 Selecve: Serce 850 SecuntiesCommodties

of Vetera's Benefits

i: 350 Motur Vehicle

i: 380 Oter Perona

i: 710 Fai Labor Stada i: 861 HI (1395ft

Exchange

i: 160 Stockholder' Suits

i: 355 Motor Vehicle

Proper Dame

Act

i: 862 Black Lung (923)

i: 875 Cuer Challenge

i: 190 Oter Contr

Product Liabilty

i: 385 Propert Dae i: 720 LalMgmt. Relatons i: 863 DIWClIWW (405(g))

12 USC 3410

i: i: 195 Contr Pruct LiabiUty

360 Oter Perona

Product LiabiUty i: 730 LarlMgmtReprtng i: 864 SSID Tide XV

i: 890 Oter Statoiy Actons

i: 196 Frachise

Iniur

& Disclosur Act

891 Agrcultu Act

~~:Ð~hTS~l g ~~~REq,R'OPE!I.fl'.~~ £%~~5f;mvRrGmrHllitEt~I~ f¡P.RlONE:aONS~~ i: 740 Ralway Labor Act

892 Ecnomic Stailtion Act

i: 210 Lad Condemnaton

i: 441 Votig

i: 510 Motions to Vacate i: 790 Oter Labr Litigation i: 870 Tax (U.S. Plaintiff i: 893 Environenta Mas

i: 220 Foreclosur

i: 442 Employent

Sentence

i: 791 Empl. Ret Inc.

or Defendat)

i: 894 Ener Alloction Act

i: 230 Rent Leae & Ejecent i: 443 Housng!

Habeas Corpus:

Secunty Act

i: 871 IRS-Third Par

i: 895 Freeom ofinformaton

i: 240 Tort to Land
i: 245 Tort Prodct Liabilty

Accommodaons
i: 44 Welfae

i: 530 Gener i: 535 Deth Penally

¡\r&;l~IMGB'JON~1

26 USC 7609

Act
i: 900Appe of Fee Determation

i: 290 AU Other Re Prope i: i: 445 Amer. wlDsabilties . 540 Mada & Oter i: 462 Natzaon Application

Under Equal Acces

Employmnt

i: 550 Civil Rights

i: 463 Habea Corpus .

to Jusce

i: i: 446 Amer. wlDsabilties .

555 Prson Condition

Alen Detaee

i: 950 Coustutionality of

Oter

i: 465 Oter Iugron

Stae Statutes

Ql 440 Oter Civi Rights

Actions

V. ORIGIN

(pla an "X" in One Box Ony)

Appe to Distrct

i3 1 Original
Proceeing

o 2 RSemtaovteed fCromou0 r3 RAepmpanedelldaftroemC0 4oRuerinRstaeteoopr 0e5n~e~~d~~sf:iri~Lmi0ti6gla\atltiidoisntrct

o 7 JuMdgeagfirsotm
Jud ent

Cite the U.S. Civil Statute under which you ar fiing (Do not cite juridictional statutes unles diversit):

VI. CAUSE OF ACTION 42BUrie.fSd.eCsc.ri1p9tio8n3oaf ncadus1e:8 U.S.C. 2510 et se .

Civil ri hts case involvin violations of Constiutional ri hts, federal and state wireta statutes, and the attorne -client rivile e.

VII. REQUESTED IN O! CHECK IF TilS is A CLSS AClION DEMAND $ CHECK YE only if demanded in complaint:

COMPLAINT:

UNER F.R-C.P. 23 In excess of $75,000 JUY DEMA: JD Yes 0 No

~~A.~ VIII. RELATED CASE(S) IF ANY
DATE
(0 lJog

(See intrctions):

JUE
SIGNA~~F A~ORN OFRE~

FOR OFFCE USE ONLY

DOCKE NUER

RECEIP #

AMOUN

APPLYIG IFP

JUE

MAG. JUE

Case 0:08-cv-05687-ADM-RLE Document 1-3 Filed 10/15/2008 Page 2 of 3

JS 44 Reverse (Rev. 12/07)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CML COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the infonnation contained herein neither replaces nor supplements the filings and service of

pleading or other papers as required

by law, except as provided by local rules of court. This fonn, approved by the Judicial Conference of

the United States in September 1974, is requied for the use

of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of

Cour for each civil complait

fied. The attorney fiing a case should complete the fonn as follows:

I. (a) Plaintiffs-Defendants. Enternames (last, fit, middle initial) of

plaintiff and defendant. If the plaintiff or defendant is a governent

agency, use only

the full name or stadar abbreviations. If

the plaintiff or defendant is an offcial within a governent agency, identify first the agency and then the offcial, giving

both name and title.

(b) County of Residence. For each civil case fied, except U.S. plaintiff cass, enter the name of

the county where the first listed plaintiffresides at the tie

of filing. In U.S. plaitiff caes, ente the name of

the county in which the fi listed defendant resides at the tie of filing. (NOTE: In land condemnation caes,

the county of residence of the "defendant" is the locaton of

the tract ofland involved.)

(c) Attorneys. Enter the fi name, addrss, telephone number, and attrney of
in this section "(see attchment)".

record. If there ar several attrneys, list them on an attchment, notig

II. Jurisdiction. The basis of

jursdiction is set fort under Rule 8(a), F.RC.P., which requir that

jurisdictions be shown in pleadings. Place an "X" in one

of the boxes. If there is more than one basis of jursdiction, precedence is given in the order shown below.

. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and offcers of

the Unite States ar included here.

United States defendant. (2) When the plaintiff

is suing the United States, its offcers or agencies, place an "X" in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jursdiction arses under the Constitution of the United States, an amendment to the Constitution, an act of Congrss or a treaty of the United States. In cases where the U.S. is a par, the U.S. plaitiff or defendant code taes precedence, and box
1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where pares are citizens of different states. When Box 4 is checked, the citizenship of

the

different paries must be checked. (See Section II below; federal question actions tae precedence over diversity cases.)

III. Residence (citizenship) of
for each pricipal par.

Principal Parties. This secton of the JS 44 is to be complete if diversity of citizenship was indicated above. Mark this section

IV. Nature of

Suit. Place an "X" in the appropriate box. If the natue of suit caot be detennned, be sure the cause of action, in Section VI below, is suffcient

to ènable the deputy clerk or the statistical clerks in the Administrative Offce to detenne the natue of suit. If

the cause fits more than one natu of suit, select

the most definitive.

V. Origin. Place an "X" in one of

the seven boxes.

Original Proceedings. (1) Cases which originate in the United States distrct court.

Removed from State Cour. (2) Proceedings initiated in state cour may be removed to the distrct cour under Title 28 U .S.C., Section 1441. When the petition for removal is granted, check this box.

Remanded from Appellate Cour (3) Check this box for cases remanded to the distrct cour for furter action. Use the date of remand as the filing date.

Reintated or Reopened. (4) Check this box for caes reinstated or reopened in the distrct cour. Use the reopenig date as the filing date.

Traferrd from Another Distrct. (5) For cases transferrd under Title 28 U.S.C. Secton 1404(a). Do not use ths for within distrct transfers or multidistrct litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrct case is tranferrd into the distrct under authority of
is checked, dò not check (5) above.

Title 28 U .S.C. Section 1407. When ths box

Appeal to Distrct Judge from Magistrte Judgment. (7) Check this box for an appeal frm a magistat judge's decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of
unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: unautnonzëd reception of cable service

the cause. Do not cite jurisdictional statutes

VII. Requested in Complaint. Class Action. Place an "X" in this box if

you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In ths space enter the dollar amount (in thousands of dollar) being demanded or indicate other demand such as a preliminar injunction.

JUl Demand. Check the appropriate box to indicate whether or not ajur is being demanded.

VII. Related Cases. Ths section of

the JS 44 is used to reference related pending cases if any. If

and the corrsponding judge names for such caes.

there are related pendig caes, insert the docket numbers

Date and Attorney Signature. Date and sign the civil cover sheet.

Case 0:08-cv-05687-ADM-RLE Document 1-3 Filed 10/15/2008 Page 3 of 3
Attachment A
Mara R. Thompson (MN No. 196125) Dan Bryden (MN No. 302284) Jeffrey A. Abrahamson (MN No. 338187) Sprenger & Lang, PLLC
310 Fourth Avenue South Suite 600
Minneapolis, MN 55415
(612) 871-8910
Steven M. Sprenger (DC No. 418736) Sprenger & Lang, PLLC 1400 Eye Street, N.W.
Suite 500
Washington, DC 20005 (202) 265-8010

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

Kenneth E. Andersen, and Dell D. Holm, on behalf of themselves and all others similarly situated,
and
William K. Bulmer, II, on behalf of himself and all others similarly situated,
Plaintiffs,
vs.
The County of Becker, Minnesota, Tim Gordon, in his capacity as Sheriff of Becker County, and Joseph H. McArthur, in his capacity as Captain in the Becker County Sheriff s Department,
Defendants.

Case No. 08-CV-5687 ADM/RLE

ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

COME NOW defendants, and for their Joint and Individual Answer to plaintiffs' First Amended Complaint, state and allege as follows:
1. Unless hereafter admitted, qualified or otherwise answered, these defendants deny each and every thing, matter and particular alleged in plaintiffs' First Amended Complaint or otherwise.

2. These answering defendants affirmatively allege plaintiffs' class allegations fail to meet the four prerequisites of Fed. R. Civ. P. 23.01(a)-(d). Furthermore, the plaintiffs' class allegation fails to satisfy the qualifications required under Fed. R. Civ. P. 23(b)(3).
3. These answering defendants deny there is an unconstitutional policy, custom and/or practice of improperly recording privileged and confidential telephone calls between attorneys/attorneys' agents and detaineeslinmates, improperly informing attorneys/attorneys' agents and detaineeslinmates telephone calls are not reecorded, failure to inform attorneys/attorneys' agents and detaineeslinmates of a procedure by which attorneys' landline telephone numbers may be placed on a "Do Not Record" list or the fact that it refuses to place cellular phone numbers of attorneys on the "Do Not Record" list. These answering defendants further state it was clearly posted in the jail that, "ALL PHONE CALLS MAYBE MONITORED OR RECORDED." Additionally, for safety reasons, cell phone numbers cannot be placed on the "Do Not Record" list.
4.
These answering defendants admit paragraphs 6, 7 and 8 of plaintiffs' First Amended Complaint, and further admit Becker County is a political entity and Sheriff Tim Gordon is the elected official responsible for the Sheriff s Department pursuant to Minnesota Statutes and all of the actions taken by Sheriff Gordon were in his official capacity as Sheriff for the County of Becker. These defendants further admit all of the actions taken by Becker County Captain Joseph McArthur were in his official capacity.
2

5.
These answering defendants deny the allegations contained in paragraphs 16, 20, 25,26,50, 53, 62, 63, 64, 65 and 66 of plaintiffs' First Amended Complaint that neither Andersen, Holm, nor their attorneys were informed of a process to request a confidential attorney/client telephone call.
6.
These answering defendants alleged they contract with Reliance Telephone, Inc. to install and operate an inmate telephone.
7.
These answering defendants admit on December 3,2007, a request was made for the office and cellular telephone numbers of Durkin, Bulmer, and Fladmark and other numbers to be placed on a "Do Not Record" list. The numbers were given to Reliance Telephone, Inc. for verification. The land numbers were added to the no record list on December 5, 6 and 12,2007. On December 5,2007, the cell phone numbers were taken off the "Do Not Record" list.
8.
These answering defendants deny the allegation that all cellular telephone attorney/client calls were monitored by Becker County.
9.
These answering defendants admit Durkin raised alleged violations of attorney/client privilege at an Omnibus hearing as alleged in paragraph 35 of plaintiffs'
3

First Amended Complaint but deny this hearing took place on April 14, 2008 and further state the Omnibus hearing was conducted on March 7,2008.
10.
These answering defendants deny the allegations contained in paragraph 40 of plaintiffs' First Amended Complaint. These answering defendants allege this paragraph misstates the transcript of the Omnibus hearing and clarify that Joe McArthur was speaking of cell phone calls that were recorded and he personally did not tell Kenneth Andersen or his attorneys the cell phone calls were recorded. See Ex. 3 ofPis. ' Amended Campi. pp. 134-135. Additionally, attorney/client phone calls are not monitored.
11. These answering defendants deny the allegation in plaintiffs' First Amended Complaint that attorney/client calls between Andersen and his attorneys were monitored by Becker County and further state Joe McArthur testified at the Omnibus hearing that no calls of Andersen to his attorney's cell phone have been listened to. Id p. 138:7-9. Joe McArthur also testified correctional officers are trained to terminate a call that is monitored when they become aware it is a call between an inmate and an attorney. Id p. 126:8-15. McArthur testified no officer listened to any call between Andersen and his attorneys. Id p. 126: 16-20.
12. These answering defendants deny the allegation contained in paragraph 44 of plaintiffs' First Amended Complaint that Agent Baumann listened to recordings of Andersen's telephone calls with his attorneys and further state Baumann testified when
4

he became aware of a phone call between Andersen and his attorneys, he would delete
those calls. Id p. 140: 15-22. Agent Baumann also testified he never heard any
discussions between Andersen and his attorneys concerning Andersen's criminal case,
witnesses, or trial strategy. Id p. 141:6-14.
13.
These answering defendants deny the allegation contained in paragraph 45 of
plaintiffs' First Amended Complaint that Judge Irvine castigated Becker County at the
Omnibus hearing and state that on April 14, 2008, Judge Irvine issued an Order stating
"The State was not denying Defendant access to his attorney." See Exhibit 1 attached
hereto, Memorandum, p. 6. These answering defendants further state Judge Irvine found:
On or about December 3,2007, authorities at the Becker County Jail, where the Defendant was incarcerated pending trial, blocked - at Defendant's request -two land line numbers so that routine recording of Defendant's phone calls would not take place on those numbers. No request was made as to cell phone numbers belonging to Defendant's attorneys. As a result authorities would record those calls and one of the Sheriff s deputies, or one of the State's agents, would listen to all of those calls, but would cease listening to any call once that deputy or agent determined it was a call between the Defendant and his attorney. Both men testified that they had never heard anything about the case or related to the case. There was no evidence presented that the deputy or agent involved ever listed to any conversation between Defendant and his attorney once the call was determined to involve the Defendant's attorney. There was no evidence that anyone else ever overheard anything related to this case; in fact, there was testimony to the contrary. . .. Because there is no evidence of any prejudice to the right of the Defendant, and because the practice of recording for screening purposes has been stopped, there are no real grounds for dismissing the indictment.
Id, pp. 6-7.
5

14. These answering defendants deny they monitored or recorded phone calls between Holm and his attorney as alleged in paragraph 57 of plaintiffs' First Amended Complaint.
15. These answering defendants specifically deny the allegations set forth in Counts I, II, III, IV, V, VI, VII, VIII, IX, X and XI of plaintiffs' First Amended Complaint.
16. These answering defendants affirmatively allege they put very little limitations on the ability of detaineeslinmates to contact their attorney. Becker County allows detaineeslinmates in the jail to contact their attorneys from 7:00 a.m. to 11:00 p.m., seven days a week, at no charge. The telephone calls made by the detaineeslinmates must be to their attorneys on an approved hard line so the jail can verify exactly who is receiving the telephone call. The jail cannot verify who the receiver of a call is on a cell phone.
17. These answering defendants allege plaintiff Andersen was convicted of first degree premeditated murder and is currently serving a life sentence in Rush City.
18. These answering defendants affirmatively allege plaintiffs' First Amended Complaint fails to state a cause of action upon which relief can be granted.
6

19. These answering defendants specifically deny plaintiffs have set forth a proper Monell claim against Becker County and, further, deny Becker County has or had a custom, practice or policy violative of an individual's constitutional rights.
20. Plaintiffs' claims are barred by 42 U.S.C. §1997, et seq., and plaintiffs have failed to exhaust all administrative remedies.
21. These answering defendants specifically deny plaintiffs have stated a cognizable claim for relief under 42 U.S.C. § 1983, and further deny plaintiffs have sustained any deprivation of rights or constitutional injuries as alleged in their First Amended Complaint.
22. These answering defendants affirmatively allege plaintiffs' claims are barred by the doctrines of qualified, statutory and official immunity.
23. These answering defendants affirmatively allege they, at all times material hereto, were performing discretionary acts in the scope of their duties with a good faith belief their conduct was lawful, constitutional and proper.
24. These answering defendants affirmatively allege their actions, at all times material hereto, were objectively reasonable.
7

25. These answering defendants affirmatively allege the state tort allegations in plaintiffs' First Amended Complaint set forth a cause of action for the performance or failure to perform a discretionary function or duty and this action is barred by Minn. Stat. § 466.03, Subd. 6.
26. These answering defendants affirmatively allege any cause of action against them
is governed by the provisions of Minn. Stat. § 466, et seq., and plaintiffs have failed to comply with the notice provisions of said statute.
27. These answering defendants affirmatively allege any injuries or damages sustained by plaintiffs were due to, caused by and solely the result of plaintiffs' own carelessness, negligence, intentional and/or unlawful conduct.
28. These answering defendants deny plaintiffs sustained any damage.
29. These answering defendants affirmatively allege the purported class asserted of claimants is not too numerous to justify a class action claim herein and deny presumed, special and general damages as alleged.
8

WHEREFORE, these answering defendants pray plaintiffs take nothing by this claim for relief herein; that these answering defendants be given judgment against plaintiffs, dismissing plaintiffs' cause of action with prejudice; that defendants be given judgment for costs, disbursements and attorney's fees herein pursuant to 42 U.S.C. §1988 and for such other relief as the Court may deem just and equitable.

Dated: December 11,2008

IVERSON REUVERS, LLC
..,........... --_ ..
By \. ::~~~~)~:r~JL)
Jon K. Iverson, #146389 Susan M. Tindal, #330875 Attorneys for Defendants 9321 Ensign Avenue South Bloomington, MN 55438 (952) 548-7200

9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

Kenneth E. Andersen, and Dell D. Holm, on behalf of themselves and all others similarly situated,
and
William K. Bulmer, II, on behalf of himself and all others similarly situated,
Plaintiffs,
vs.
The Connty of Becker, Minnesota, Tim Gordon, in his capacity as Sheriff of Becker County, and Joseph H. McArthur, in his capacity as Captain in the Becker County Sheriffs Department,
Defendants.

Case No. 08-CV-5687 ADM/RLE

EXHIBIT 1 TO ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

Exhibit 1 - The Honorable Peter M. Irvine's Aprill3, 2008, Order and Memorandum to This Court's Order of April l3, 2008, in State ofMinnesota v. Kenneth Eugene Andersen.

STATE OF MINNESOTA COUl\TJY OF BECKER State ofMimlesota, v. Kemleth Eugene Andersen,

DISTRICT COURT SEVENTH JUDICIAL DISTRICT

Plaintiff,

ORDER

Defendant.
Court File No. 03-CR-07-I7I

The above-entitled matter came before the Court as a contested Omnibus HeaIing on March 7,2008, the Honorable Peter M. Irvine presiding. The State was represented by Becker Connty Attorney Michael Fritz. The Defendant was personally present aJ.1d was represented by Rory Patrick Durkin, Esq. The Defendant had filed and served three motions:
I.) A motion dated December 5, 2007, filed the same date, seeking a.) a suppression of all evidence obtained pursuant to the seaI'ch warraJ.1ts on the grounds of i.) intentional material misstatements of fact in, aJ.1d intentional omissions material facts from; the search warraJ.1t affidavits, ii.) stale infOlIDation contained in the search warrant affidavits, iii.) law autllorities exceeding the scope of the search WaITaJ.1ts, iv.) lack of probable cause, v.) aJ.1d facial invalidity, aIld b.) a change of venue on the grOlmds that a fair and impartial trial cannot be had in Becker Connty aIld in the interests ofjustice;
2. ) A motion dated February 8, 2008 and filed February 11,2008 seeking an order to dismiss the indictment or, in the alternative, to reduce bail fordiscovery violations; aJ.1d

3.) A motion dated February 22,2008 and filed February 26,2008 seeking an order to dismiss the indictment or, in the alternative, to rednce bail on the grounds that defendant was denied access to his attorney, and therefore a right to a fair trial, based upon the State's failure to provide Defendant with private telephone access to his attorney while held in the connty jail.
At the healing the Defendant withdrew his motions concerning the facial validity of the search WalTants alld whether law authorities exceeded the scope of the search walTants. Defendant called five witnesses and submitted two exhibits. Defendant also submitted a packet ofpaperwork in support of his motion for change of venue. At the close of the he3ling Defendant requested a speedy trial
Having heard the oral arguments of counsel at the hearing, and considered the parties' memormda, exhibits, and other submissions, and having reviewed the file 3lld applicable law, the Court hereby makes the following:
ORDER
1. The Defendant's motion praying this Court for an order to dismiss or suppress any or all
evidence obtained pursuant to any search wanant on any grounds is hereby DENIED;
2. TIle Defendant's motion praying this Court for an order to dismiss the indictment on 3lly
grounds is hereby DENIED;
3. TIle Defendant's motion praying tIns Court for all order to trallsfer venue of the pending
matter to motIler county is hereby DENIED; 4. The Defendant's request for a speedy trial is GRANTED: A jury trial shall commence
on May 12, 2008 at 9:00 a.m.; 5. The Defendant's motion to reduce bail as a sanction for the recording of Defendant's
telephone calls with counsel is hereby DENIED;
2

6. iilly motion by Defendant not specifically addressed above is hereby DENIED; and 7. A Memorandnm or Findings of the Court will be issued in the near future.

Dated this

B

~ day

of

APlil,

2008.

( /~ ~ ./ ~ Peter M. Irvine Judge ofDisnict Court

3

STATE OF MINNESOTA COUNTY OF BECKER State ofMirmesota, v. Kenneth Eugene Andersen,

DISTRlCT COURT SEVENTH JUDICIAL DISTRlCT

Plaintiff,

MEMORANDUM TO THIS COURT'S ORDER OF APRIL 13, 2008

Defendant. Comi File No. 03-CR-07-l7l

This Memorandum is issued as a part of the Court's Order of April 13, 2008, a copy of which is attached hereto. This Memorandum is herehy made of part of, and incorporated into, that Order.

/ I Dated this

-t:i.> day ofJune, 2008.

6ilJtt:,iPeter M. Irvine ' Judge ofDistrict Court

MEMORANDUM
Each of the issues raised by the Defendant in his motions will be dealt with separately:
1. Should any and all evidence found, seized, or obtained pursuant to any search warrant be dismissed on the grounds that law enforcement officials intentionally made material misstatements offact and intentionally omitted material facts from the search warrant affidavit in violation of Defendant's Fourth and Fifth Amendment rights under the United States Constitution and Article 1, section 7 and 10, under the Minnesota State Constitution?
No. There were no material misstatements or omissions in the search warrant affidavit that would invalidate the search warrant.
In State v. Smith, 448 N.W.2d 550 (Minn.App. 1989) the Court, in citing the U.S. Supreme Court case of Franks v. Delaware, indicated that a search warrant may be held void and the fruits of the search excluded from evidence, if it is demonstrated by a preponderance of the evidence that the affiant, lmowingly or with reckless disregard for the truth, included a false statement in the affidavit. Franks v. Delaware, 438 U.S. 154 at 155-56, 98 S.Ct. at 2676-77. However, if the material that is not false is sufficient to sustain the search warrant, the search warrant is not voided. Jd. at 171-72, 98 S.Ct. at 2684-85. The Minnesota Supreme Court extended Franks to material omissions from the affidavit as well. The test is whether, after supplying the omissions, the affidavit established probable cause. State v. Doyle, 336 N.W.2d 247, 252 (Minn. 1983).
The Minnesota Supreme Court emmciated the standard to be used when evaluating a search warrant application in State v. Harris, 589 N.W.2d 782 (Minn. 1999):
The task of the issuing judge charged with determining whether probable cause to search exists "is simply to malce a practical, common-sense decision
2

whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay infOlmation, there is a fair probability that contraband or evidence of a crime will be found in a paJiicular place. Illinois v. Gates, 462238, 103 St. Ct. 2317.
The same court made the standard even clearer in Rosillo v. State, 278
N.W.2d 747 (Minn. 1979):
Although the affidavit did not contain any avem1ent of firsthand infonnation that fruits of the crime would be found at defendant's residence, the Fourth amendment does not make such infom1ation essential. All that is required is that the affidavit, interpreted in a common-sense and realistic manner, contain infonnation which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched. United States v. Rahn, 511 F.2d 290 (lOCir. 1975), cited in Rosillo at pp. 748-49.
The Defendant's individual objections to the search warrant are set forth in great
detail in the Defendant's and the State's submissions, both found in the Court's
file. When the law and standards set forth in the cases cited above are applied to
the Defendant's objections to the affidavit application for the search warrant, and
therefore the legal validity of the search warrant itself, and furthennore, taking into
account the editing, amendments, and additions of omissions to the affidavit
application conceded and agreeable to the State as set forth in its "State's
Responsive Memorandum of Law Regarding All issues Heard at the Contested
Onmibus Hearing," the Comi finds that there simply is no legal basis to suppress
any of the evidence obtained pursuant the search warrant in question.
3

2. Did the supporting affidavit fail to establish any direct connection between any alleged criminal activity and the site(s) to be searched in violation of State v. Souto, 578 N.W.2d 744 (Minn. 1998)?
No. Although there did not appear to be any ongoing criminal activity, the items sought were very incriminating, considering the nature of the criminal activity itself, i.e., the murder, and the fact that the Defendant owned and possessed the type of firearm that was used in that murder.
3. Was the information contained in the search warrant affidavit stale in violation of State v. Souto, 578 N.W.2d 744 (Minn. 1998)?
No. The part of the search warrant application citing the purchase of the firearm in 2005 by Josh Bogatz for the Defendant is alleged as being stale. The State, while not agreeing with that conclusion, has agreed those paragraphs should be removed. However, the application makes reference to the possession by the Defendant within the last year of a gun that could be the murder weapon, information which was not only not stale, but highly relevant and critical to the investigation. The articles sought were not innocuous, but highly incriminating, easily disposable, and certainly had an enduring utility.
4

4. Did the supporting affidavit fail to establish probable cause in violation of Defendant's Amendment rights under the United States Constitution and Article 1 section 10, under the Minnesota State Constitution?
No. Pursuant to the standards set forth in the Harris and Rahn cases cited above, and the standards set forth in the Souto case, including the totality of the circumstances, the judge signing the search warrant had a substantial basis to conclude that the source of the information provided a fair probability that the articles sought in the search warrant application would be located at the place to be searched. There was adequate probable cause.
5. Were there Discovery violations and if so, based on those violations, should the Court dismiss the indictment against the Defendant?
There were no discovery violations of such a nature as to require dismissal of the indictment against the Defendant. Minn. R. Crim. P. 9.01 and Minn. R. Crim P. 9.03, subd. 2 require the prosecution to continue to disclose as material comes into the prosecutor's possession. The prosecution has continued to disclose as required. There are no facts or circumstances in this case that reveal any intent on the prosecution's part not to disclose in accordance with the rules and the relevant law. There have been some communications problems, but they seem to have been
5

ironed out without any serious prejudice to the Defendant. All the discovery items requested by the Defendant, to which he is entitled under law, have been or will be made available to him well in advance of trial. Under the leading case regarding discovery violations, State v. Lindsey, 284 N.W.2d 368 (Minn, 1979), there would appear there would appear that nothing fUliher is required or merited regarding this Issue.
6. Was the State denying the Defendant access to his attorney, and hence denying the Defendant his right to a fair trial, such that the Court should dismiss the indictment or release Defendant on his own recognizance?
The State was not denying Defendant access to his attomey. Minn. Stat. 481.1 0 sets forth the framework for confidential communication between client and attorney. Minn. Stat. 481.1 0, Subd. 2 requires that "[rJeasonable telephone access ... be provided following the request of the person restrained ..." [emphasis added]. On or about Decernber3, 2007, authorities at the Becker County Jail, where the Defendant was incarcerated pending trial, blocked-at Defendant's request-- two land line numbers so that routine recording of Defendant's phone calls would not take place on those numbers. No request was made as to cell phone numbers belonging to Defendant's attorneys. As a result authorities would record those calls and one of the Sheriffs deputies, or one ofthe State's agents, would listen to all
6

of those calls, but would cease listening to any call once that deputy or agent deternuned it was a call between the Defendant and his attol11ey. Both men testified that they had never heard anything about the case or related to the case. There was no evidence presented that the deputy or the agent involved ever listened to any conversation between Defendant and Ius attol11ey once the call was detel11uned to involve the Defendant's attorney. There was no evidence that anyone else ever overheard anything related to the case; in fact, there was testimony to the contrary.
The State maintains that no attol11ey calls have been recorded on or after February 21, 2008, the date when the defense learned the cell phone numbers were not blocked. On March 7, 2008, Court ordered any recording of Defendant's phone conversations to cease at once. The State has made assurances that now even the cell phone numbers are blocked.
Because there is no evidence of any prejudice to the rights of the Defendant, and because the practice ofrecording for screening purposes has been stopped, there are no real grounds for dismissing the indictment. Since bond has been set on the Defendant in part in the interest of public safety, the Court will not now release the Defendant on his own recognizance.
7. Is a change of venue warranted?
7

No. The Defendant asserts that a fair and impartial jUly cannot be had in Becker County. Defendant conducted his own survey in Becker County and found that approximately 20% of the respondents felt that the Defendant was guilty. That means that~pursuant to the survey that Defendant himself chose--80% of those surveyed either did not believe the Defendant guilty or had no opinion. With 80% ofthose surveyed showing no prejudice that they already believe the Defendant guilty, the process of voire dire will remain an effective tool in selecting a fair and impartial jury. The Defendant also claims that pretrial pUblicity has created a reasonable likelihood that a fair trial cannot be had. There is no presumption of prejudice of pretrial publicity unless there is "massive pUblicity surrounding the trial." The defendant in a criminal case seeking reversal on this ground must show he was actually prejudiced by the pUblicity. State v.Kinsky 348 N.W.2d 319, 323 (Minn. 1984). News reports are insufficient to establish that pretrial publicity is prejudicial if they are factual. State v. Whalen, 563 N.W.2d 742 at 748. Even articles that recite information from portions of the original indictment, a quote from an indictment or complaint, cannot be considered prejudicial if they are purely factual reports. State v. Fratzke 354 N.W.2d 402 at 407.
8

From the Defendant's submissions, there appear that there were 17 articles published or broadcast from July through November. There were references to defendant's prior criminal record, to the fact that he had charges pending in Roseau County, to a hearing regarding defendant's bail, and ofhis ilial and acquittal for arson. All were accurate. There were some misleading reports.
The publicity has not been massive and has been factual for the most part. The Defendant has not made a showing that he has been prejudiced by the pUblicity he cites. If there is any problem with prejudice, the process of jury selection will reveal it and Defendant can renew his motion at that time.
PMI
9

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

Kenneth E. Andersen, on behalf of himself and all others similarly situated,
and
William K. Bulmer, II, on behalf of himself and all others similarly situated,
Plaintiffs,
vs.
The County of Becker, Minnesota, Tim Gordon, in his capacity as Sheriff of Becker County, and Joseph H. McArthur, in his capacity as Captain in the Becker County Sheriff s Department,
Defendants.

Case No. OS-CV-056S7 ADM/RLE

CERTIFICATE OF SERVICE

I hereby certify that on December 11, 200S, I caused the following documents:

ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

to be filed electronically with the Clerk of Court through ECF, and that ECF will send an e-notice of the electronic filing to the following:

Daniel Bryden Jeffrey Abrahamson Mara Thompson

dbryden@sprengerlang.com jabrahamson@sprengerlang.com mthompson@sprengerlang.com

I further certify that I caused a copy of the foregoing documents and the notice of electronic filing to be mailed by first class mail, postage paid, to the following non-ECF participants:
nJa
I further certify that I caused the proposed order to be filed with the court via e-mail to the following judge who is hearing the motion:
nJa
and I certify that I caused a copy of the proposed order to be e-mailed or mailed by first class mail, postage paid, as noted below, to the following:
nJa
IVERSON REUVERS

Dated: December 11,2008.

Jon K. IversoIT, #146389 Susan M. Tindal, #330875 Andrea B. Wing, #389120 Attorneys for Defendants 9321 Ensign Avenue South Bloomington, MN 55438 (952) 548-7200

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Kenneth E. Andersen and Dell D. Holm, On behalf of themselves and all others similarly situated,

and

William K. Bulmer, II, On behalf of himself and all others similarly situated,

Plaintiffs,

ORDER

v.

Civil No. 08-5687 ADM/RLE

The County of Becker, Minnesota, Tim Gordon, in his capacity as Sheriff of Becker County, and Joseph H. McArthur, in his capacity as Captain in the Becker County Sheriff’s Department,

Defendants.

______________________________________________________________________________

Daniel C. Bryden, Esq. and Mara R. Thompson, Esq., Sprenger & Lang, PLLC, Minneapolis, MN, appeared for and on behalf of the Plaintiffs.

Jon K. Iverson, Esq., Iverson Reuvers, LLC, Bloomington, MN, appeared for and on behalf of the Defendants. ______________________________________________________________________________

On December 12, 2008, the undersigned United States District Judge heard oral argument on Plaintiff Kenneth Andersen’s Motion for Temporary Restraining Order [Docket No. 4]. As stated on the record at oral argument, Plaintiff’s motion is denied.
Plaintiffs allege that Defendants have recorded their attorney-client phone calls in violation of their Constitutional rights. None of the named Plaintiffs is currently incarcerated at the Becker County Detention Center, and Plaintiffs have submitted no evidence or affidavits that

this practice is currently ongoing. The Court recognizes that Defendants’ policies for informing inmates about the process for placing an attorney on the Do Not Record list, both in the jail and in the inmate handbook, is troublesome and could be improved, but these deficiencies do not rise to the level of a Constitutional violation currently warranting injunctive relief.
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that Plaintiff Kenneth Anderson’s Motion for a Temporary Restraining Order [Docket No. 4] is DENIED.
BY THE COURT:

Dated: December 12, 2008.

s/Ann D. Montgomery ANN D. MONTGOMERY U.S. DISTRICT JUDGE

 
 2009 WL 4563523 (D.Minn.) (Trial Motion, Memorandum and Affidavit) United States District Court, D. Minnesota.
Kenneth E. ANDERSEN, and Dell D. Holm, on behalf of themselves and all others similarly situated, and William K. Bulmer, II, on behalf of himself and all others similarly situated, Plaintiffs, v.
THE COUNTY OF BECKER, MINNESOTA, Tim Gordon, in his capacity as Sheriff of Becker County, and Joseph H. McArthur, in his capacity as Captain in the Becker County Sheriff’s Department, Defendants.
No. 08-CV-5687 ADM/RLE. June 30, 2009.
Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment
Iverson Reuvers, Jon K. Iverson, #146389, Susan M. Tindal, #330875, Attorneys for Defendants, 9321 Ensign Avenue South, Bloomington, MN 55438, (952) 548-7200.
INTRODUCTION
Plaintiffs Andersen and Holm allege Becker County Defendants improperly recorded and monitored their calls with their attorney.1 Andersen was convicted of First Degree Murder. Holm pled guilty to Assault with a Dangerous Weapon. They claim calls with their attorneys (including Andersen’s attorney Bulmer) were improperly monitored. Becker County has a policy not to monitor attorney/client calls. No calls of Plaintiffs were monitored or used against them in their prosecution. For the reasons set forth below, all of Plaintiffs’ claims should be dismissed.
STATEMENT OF FACTS
1. BECKER COUNTY JAIL
Becker County contracts with Reliance Telephone, Inc., to install and operate inmate telephones. Affidavit of Tim Gordon ¶ 1;2 Affidavit of Brendan Gilmore ¶ 2. Prior to December 31, 2008, posted in the jail by inmate phones are warnings indicating “All Phone Calls May be Monitored or Recorded.” Aff Gordon ¶ 2, Ex. 1; Affidavit of Susan Tindal, Ex. I - Hodgson Dep. p. 39. The Inmate Handbook explained “[a]ny non-attorney/client privileged phone calls made from the Becker County Jail will be monitored and/or recorded.” Hodgson Dep. Ex. 3, p. 9. All phone calls from cell blocks in the jail are recorded unless a request is made for a private attorney phone call. Aff Gordon ¶ 3; Hodgson Dep. p. 78.3 During the booking process, jail procedures are explained to the detainee/inmate. Inmates are told all calls except calls to attorneys are recorded and monitored. Hodgson Dep. pp. 26-27. Jailers explain the detainee/inmate must make a request for a private telephone call to their attorney. Aff. Gordon ¶ 3. After the attorney’s information is verified, they will be able to talk privately to an attorney. Id. ¶ 4. There may be some circumstances where the process for a private call is not explained at booking and is explained when the inmate wants to make a call. Hodgson Dep. pp. 53-54, 135.
If an inmate wants a private call with an attorney, he/she makes the request to a jailer who gives the request to a supervisor who reviews the private call list to see if the attorney is already a number that will not be recorded. Hodgson Dep. pp. 57-58; Aff. Tindal, Ex. L - Soyring Dep. pp. 28-29; Aff. Tindal, Ex. M - Peterson Dep. pp. 20, 29. If the number is not on the list, the supervisor gives the request to Reliance to verify it is an attorney’s landline number. Then the number is placed on a Private List.4 Hodgson Dep. p. 58.
Becker County records phone calls from detainees/inmates for security reasons. Aff. Gordon ¶ 6. These reasons include monitoring possible escape plans; attacks against law enforcement or court personnel or correctional staff; attacks against another inmate; and mental health issues including inmates harming themselves. Id.; Hodgson Dep. p. 116.
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Becker County Sheriff’s Office Policies and Procedures Manual mandates inmates’ conversations with their “attorney cannot be monitored.” Affidavit of Randy Hodgson, Ex. B - Becker County Sheriffs Office Policies and Procedures Manual; Hodgson Dep. pp. 103, 138; Aff. Tindal, Ex. J - Bauman Dep. p. 133. Jailers and investigators are trained to terminate a call that is monitored when they become aware it is a call between an inmate and an attorney. Aff. Tindal, Ex. B - Omnibus Hearing Transcript, p. 126:8-15.
II. KENNETH ANDERSEN
Kenneth Andersen was in the Becker County Detention Facility from June 19, 2007 to June 13, 2008. Aff. Hodgson ¶ 6. On June 14, 2007, a Complaint was filed in Becker County District Court charging Andersen with Second Degree Murder. Aff Tindal, Ex. D - Appellant’s Brief p. 1. On September 17, 2007, a Becker County Grand Jury indicted Andersen for First Degree (Premeditated) Murder. Id.
In December 2007, Andersen’s attorneys complained they requested their numbers be placed on the Private List and it had not been done. Affidavit of Joe McArthur, Ex. 1 - Letter to County Attorney Fritz. In response, Joe McArthur, a Captain with the Becker County Sheriff’s Office, investigated the issue and found in late November or early December, Andersen’s attorney requested numbers be private. Id. Unbeknownst to some jailers, Reliance changed the procedure for listing private numbers, requiring the jailers to enter requested numbers into its system. Id.; Peterson Dep. pp. 20-21. Previously, jailers called Reliance with the requested number and Reliance would verify the number was an attorney number and place it on the Private List. Id.; Peterson Dep. pp. 20-21. Pursuant to the original procedure, without knowledge of the change, a jailer had called Reliance with Andersen’s attorney’s request. Letter to County Attorney Fritz; Peterson Dep. pp. 36-38. After Becker County learned of Reliance’s change in procedure, only supervisors handled placing numbers in the system to be private. Id; Peterson Dep. pp. 37-38. Andersen’s attorneys requested numbers that were landlines be added to the Private List in December 2007. Id. The cell numbers were not put on the Private List pursuant to the Jail’s then-current policy because cell phones can be easily transferred to unauthorized persons which creates a security concern.5
At Andersen’s contested Omnibus hearing, he requested dismissal of his charges claiming Becker County violated his constitutional and statutory rights by recording his conversations with attorneys. At this March 7, 2008 Omnibus hearing, Becker County Captain Joe McArthur testified no calls of Andersen to his attorneys were listened to. Omnibus Hearing Transcript, pp. 126:16-20; 138:7-9. (McArthur also testified correctional officers are trained to terminate a call that is monitored when they become aware it is a call between an inmate and an attorney.) Id. p. 126:8-15. Also, no investigation was initiated based on any information from a call between Andersen and his attorney. Id. p. 127:1; Baumann Dep. pp. 106, 140-141; Affidavit of Daniel Baumann, ¶ 2, Ex. A - report summarizing follow-up investigation.
At the hearing, Judge Irvine ordered any recording of Andersen’s phone conversations with attorneys cease. Since that date, Becker County has not recorded any inmate phone conversations with their attorneys or attorneys’ agents including calls to cell phones. Hodgson Dep. pp. 82, 132, 143-144.
On April 14, 2008, Judge Irvine issued an Order stating, “The State was not denying Defendant access to his attorney.” Aff. Tindal, Ex. C - Order and Memorandum, p. 6. Judge Irvine found:
On or about December 3, 2007, authorities at the Becker County Jail, where the Defendant was incarcerated pending trial, blocked [listed as private] - at Defendant’s request - two land line numbers so that routine recording of Defendant’s phone calls would not take place on those numbers. No request was made as to cell phone numbers belonging to Defendant’s attorneys. As a result authorities would record those calls and one of the Sheriff’s deputies, or one of the State’s agents, would listen to all of those calls, but would cease listening to any call once that deputy or agent determined it was a call between the Defendant and his attorney. Both men testified that they had never heard anything about the case or related to the case. There was no evidence presented that the deputy or agent involved ever listened to any conversation between Defendant and his attorney once the call was determined to involve the Defendant’s attorney. There was no evidence that anyone else ever overheard anything related to this case; in fact, there was testimony to the contrary. . . . Because there is no evidence of any prejudice to the right of the Defendant, and because the practice of recording for screening purposes has been stopped, there are no real grounds for dismissing the indictment.
Id., pp. 6-7.
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From May 12 through June 4, 2008, a jury trial was held before Judge Irvine. Appellant’s Brief, p. 2. The jury found Andersen guilty of First Degree Murder. Id. At sentencing on June 12, 2008, Andersen requested a new trial. Id. His request for a new trial was denied and he was sentenced to life in prison. Id. On June 18, 2008, Andersen filed a motion for a new trial. Andersen’s motion for a new trial was denied and on September 2, 2008, Andersen appealed his conviction. Id. On appeal, Andersen made several arguments including that “lead investigators violated [his] right to counsel by monitoring and recording [his] phone calls with his attorney.” Id. p. 4. This issue was briefed by Andersen’s attorney (Id., pp. 53-59) and the State (Aff. Tindal, Ex. E - Respondent’s Brief, pp. 47-49). The Minnesota Supreme Court had oral arguments on Andersen’s appeal on May 7, 2009. Aff. Tindal ¶ 7. Andersen is currently serving his sentence for premeditated murder in Rush City. Aff. Hodgson ¶ 6.
III. DELL HOLM
Dell Holm was in the Becker County Detention Facility from May 7, 2008 to March 30, 2009. Aff Hodgson ¶ 5. On August 18, 2008, Holm pled guilty to Felony Assault with a Dangerous Weapon. Aff. Tindal, Ex. F - Felony Criminal Judgment and Petition to Enter a Plea of Guilty.6 On October 31, 2008, Holm was sentenced to 36 months and to serve 365 days of his time at Becker County. Aff. Tindal, Ex. G - Felony Criminal Judgment. Holm is currently serving his sentence in Faribault Correctional Facility. Aff. Hodgson ¶ 5.
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 of law. Fed. R. Civ. P. 56(c). Summary judgment should be awarded when, having reviewed the facts and inferences in a light most favorable to the nonmoving party, the court finds there is no triable issue. See Eide v. Grey Fox Technical Servs. Corp., 329 F.3d 600, 604 (8th Cir. 2003). Summary judgment motions should be looked upon favorably by trial courts to accomplish a just, speedy and inexpensive resolution of civil litigation. Matsushita Elec. Ind. Co., Ltd. v. Zenith Radio Corp., 474 U.S. 574 (1986).
LEGAL ARGUMENTS
I. COLLATERAL ESTOPPEL BARS ANDERSEN’S CLAIMS.
The collateral estoppel doctrine relieves parties of the cost and vexation of multiple lawsuits, conserves judicial resources and encourages reliance on adjudications by preventing inconsistent decisions. Allen v. McCurry, 449 U.S. 90, 94 (1980). The doctrine is not applied rigidly and the focus is on whether the application would work an injustice. State ex rel Friends of Riverfront v. City of Minneapolis, 751 N.W.2d 586, 589 (Minn. App. 2008) (internal citations omitted).
Collateral estoppel is appropriate where: (1) the party sought to be precluded in the second suit must have been a party, or in privity with a party, to the original lawsuit; (2) the issue sought to be precluded must be the same as the issue involved in the prior action; (3) the issue sought to be precluded must have been actually litigated in the prior action; (4) the issue sought to be precluded must have been determined by a valid and final judgment; and (5) the determination in the prior action must have been essential to the prior judgment. Robinette v. Jones, 476 F.3d 589 (8th Cir. 2007). A factor to consider in collateral estoppel is whether it will create an injustice to the party against whom estoppel is applied. Odham v. Pritchett, 599 F.2d 274, 279 (8th Cir. 1979). Under collateral estoppel, “once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation.” U.S. v. Mendoza, 464 U.S. 154, 158 (1984) (emphasis added) (citing Montana v. U.S., 440 U.S. 147, 153 (1979)).
All factors required for collateral estoppel are satisfied here; therefore, Andersen is barred from relitigating the constitutionality of telephone recordings at the jail. Andersen brought a Motion to Dismiss in his criminal case claiming his calls to his attorneys and investigators were monitored and recorded and therefore his right to a fair trial was polluted. The court found, “the State was not denying Defendant access to his attorney.” There was no evidence any deputy or agent listened to any conversation between Andersen and his attorney once the call was determined to be between attorney and client and no evidence anyone overheard anything related to the case. Order and Memorandum, p. 6.
Andersen appealed his conviction and argued his constitutional right to counsel was violated by monitoring and recording his
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phone calls with his attorney. Appellant’s Brief, p. 5. Andersen’s appeal is currently before the Minnesota Supreme Court. Aff. Tindal, ¶ 7. Andersen has had a full and fair opportunity to challenge the constitutionality of these issues and was represented by counsel. Clearly, Andersen’s claim is barred by collateral estoppel.
II. PLAINTIFFS’ CLAIMS ARE BARRED BY HECK V. HUMPHREY.
Plaintiffs’ claims are also precluded by the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court unanimously held that to recover damages for an unconstitutional conviction or sentence, “a § 1983 plaintiff must prove that the conviction or sentence has been reversed on appeal, expunged by executive order, [or] declared invalid by a state court or in a federal habeas corpus proceeding.” 512 U.S. at 486-87. Until the conviction or sentence has been overturned, the claim is not cognizable under § 1983. See id. The Court reasoned, similar to malicious prosecution claims, a § 1983 attack upon the validity of the conviction cannot lie until the conviction has been overturned, thus avoiding collateral attacks upon convictions through civil actions. Id. at 483-87. This rule applies only to § 1983 claims that “necessarily” implicate the validity of the conviction or sentence. Id. at 2370-72.
In Smith v. Menter, Civ. No. 07-4536, 2008 U.S. Dist. LEXIS 26381 (D. Minn. March 31, 2008) (attached to Aff. Tindal, as Ex. O), Smith was convicted of a controlled substance offense. Following his conviction and appeal, Smith filed a civil rights action against three Minneapolis police officers. Among other things, Smith claimed he was strip searched at the police station in violation of his constitutional rights. The search revealed 7.22 grams of cocaine. The court dismissed the case finding Smith was essentially challenging his conviction stating:
The Supreme Court has held that habeas corpus is the exclusive remedy for a state prisoner challenging the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973). A civil rights action for damages that “calls into question the lawfulness of [a] conviction or confinement” is not cognizable under § 1983. Heck v. Humphrey, 512 U.S. 477, 483 (1994) . . . The issue here is whether plaintiff’s challenge to the legality of his arrest and strip search necessarily implies that his underlying conviction was unlawful. The Court finds that it does. Plaintiff was convicted of second-degree possession of cocaine, a controlled substance. A finding that plaintiff’s initial arrest was unlawful because there was insufficient cause would undermine the validity of the subsequent strip search of the plaintiff, and would necessarily require the suppression of evidence of cocaine found on plaintiff’s person as a ‘fruit of the poisonous tree.’
Smith, 2008 U.S. Dist. LEXIS 26381, at *5-6. Similarly here, Plaintiffs are impermissibly challenging their convictions by claiming Defendants listened to their attorney/client privileged conversations and used information so obtained to successfully prosecute. Andersen challenged the constitutionality of Defendants’ practices by raising the issue during his criminal trial and appealing his conviction to the Minnesota Supreme Court. He cannot also attack his conviction in civil court.
Holm’s claims are also barred by Heck v. Humphrey because the doctrine applies to Alford pleas in the same manner as it does to convictions. See Wilson v. Lawrence County, 154 F.3d 757 (8th Cir. 1998) (finding Heck did not bar the § 1983 claim of a man who entered an Alford plea, but was later granted a pardon and expungement of his conviction); Rice v. Barnes, 966 F. Supp. 890 (W.D. Mo. 1997) (applying Heck to an Alford plea and finding no evidence plea had been reversed); Tunnell v. City of Bella Villa, No. 4:07CV77SNL, 2008 U.S. Dist. LEXIS 63640 (E.D. Mo. June 10, 2008) (attached to Aff Tindal, Ex. N) (barring § 1983 claim because plaintiff could not show the conviction or sentence resulting from his plea was reversed, expunged or declared invalid). Accordingly, the Amended Complaint is barred by Heck v. Humphrey.7
III. WILLIAM BULMER, II, LACKS STANDING.
“A party invoking federal jurisdiction must establish that he has met the requirements of both constitutional and prudential standing.” Delorme v. United States, 354 F.3d 810, 815 (8th Cir. 2004) (citation omitted). “The burden to show standing is not a mere pleading requirement, ‘but rather an indispensable part of the plaintiff’s case.’ ” Id. Constitutional standing requires the following: (1) the “plaintiff must demonstrate he has suffered an injury in fact which is actual, concrete, and particularized;” (2) “the plaintiff must show a causal connection between the conduct complained of and the injury;” and (3) “the plaintiff must establish that the injury will be redressed by a favorable decision.” Id.
All of Bulmer’s claims stem from his representation of Andersen. Aff. Tindal, Ex. K - Bulmer Dep. pp. 94, 40. Bulmer claims he is injured by “lost investigative time.” Id. p. 56. He claims he was required to visit Andersen in person rather than over the
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phone. Id. Bulmer did not provide any records to support his lost time claim. Id. pp. 57-58. He also claims Becker County obtained information from listening to his calls with Andersen and used the information in the prosecution of Andersen. Id. p. 59.8 Bulmer’s claims were addressed in Andersen’s criminal appeal. Id. p. 69. Furthermore, Bulmer cannot show he suffered an injury separate from Andersen’s conviction or that his injury could be redressed by a favorable decision.9 Accordingly, Bulmer’s claims should be dismissed.10
IV. THERE WAS NO VIOLATION OF 18 USC § 2510 ET SEQ.
Plaintiffs claim Defendants “intercepted” attorney/client telephone calls without the consent or knowledge of any participant in violation of Plaintiffs’ rights under Title III of the Omnibus Crime Control and Safe Streets Act. Amend. Compl. ¶¶ 96-98. This Act prohibits the intentional “use of any electronic, mechanical, or other device to intercept any oral communication.” 18 U.S.C. § 251l(1)(b). The Act further prohibits intentional disclosure or use of any information obtained through such interception. Id. at § 2511(1)(c-d). Excluded from the definition of “electronic, mechanical, or other device” is any equipment or facility being used by an investigative or law enforcement officer in the ordinary course of his duties. 18 U.S.C. § 2510(5)(a).
Plaintiffs’ claim fails because surveillance is a standard law enforcement practice in the ordinary course of jail administrative duties. See Lanza v. State of N.Y., 370 U.S. 139, 143 (1962) (noting in prison, official surveillance has traditionally been the order of the day). The surveillance practice of recording all non-Private List calls and monitoring only non-attorney/client calls is necessary to protect the safety of all personnel and inmates. Furthermore, there is no evidence Defendants used information from Plaintiffs’ recorded phone calls in any way. Accordingly, there was no violation of the Act and Plaintiffs’ claim must be dismissed because there was no improper use of information, and the surveillance was performed in the ordinary course of jail administration.
V. THERE WAS NO VIOLATION OF FEDERAL COMMON LAW.
Plaintiffs claim Defendants’ practices regarding attorney/client phone calls violated “the federal common law right of Andersen, Holm and the members of the detainee/inmate putative class to receive any evidence in defendants’ or the prosecution’s possession that is favorable or material to their defense, and/or is exculpatory.” Amend. Compl. ¶ 105. “In Brady, the Supreme Court held that due process requires the government to disclose to the defense all evidence favorable to the accused.” United States v. Vieth, 397 F.3d 615, 619 (8th Cir. 2005) (citing Brady v. Maryland, 373 U.S. 83, 87, (1963)). “To find a Brady violation, evidence must be material and exculpatory and have been suppressed by the government.” Id. Violations under Brady are cause for reversal or § 1983 due process claims if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id.; Reasonover v. St. Louis County, 447 F.3d 569, 574 and 581 (8th Cir. 2006). “A reasonable probability is defined as a probability sufficient to undermine confidence in the outcome of the trial.” Brady, 373 U.S. at 87. Brady’s protection for criminal defendants applies to prosecutors and law enforcement officers. White v. McKinley, 514 F.3d 807, 815 (8th Cir. 2008). “However, an investigating officer’s failure to preserve evidence potentially useful to the accused or their failure to disclose such evidence does not constitute a denial of due process in the absence of bad faith.” Id. (citing Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004)). “[T]he recovery of § 1983 damages requires proof that a law enforcement officer other than the prosecutor intended to deprive the defendant of a fair trial.” Id.
All recordings of Andersen’s and Holm’s telephone calls with friends and family were not exculpatory evidence. They were fully aware of their conversations and could have repeated anything said during the phone calls to their attorneys or to the court. First, all of Holm’s calls to his attorneys were private and he pled guilty; his case was never tried.11 Second, Andersen has no evidence there is a reasonable probability his criminal trials would have been different had the recordings been disclosed. Bulmer admitted he did not know what Andersen said in calls to his family/friends. Bulmer Dep. pp. 33-34. There is no evidence Defendants intentionally failed to disclose the recordings in bad faith with the intent to deprive Andersen of a fair trial. Andersen claimed discovery violations in his criminal case and the judge found no violations: “[t]he prosecution has continued to disclose as required. There are no facts or circumstances in this case that reveal any intent on the prosecution’s part not to disclose in accordance with the rules and the relevant law.” Order and Memorandum p. 5. Thus, Plaintiffs failed to state and support a claim for not disclosing exculpatory evidence.
VI. THERE IS NO CONSTITUTIONAL VIOLATION.
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Plaintiffs allege numerous violations of the U.S. Constitution. Although Plaintiffs’ claims are barred by collateral estoppel and Heck, to the extent the Court analyzes this case further, their constitutional claims fail as a matter of law.
A. No First Amendment Violation.
Plaintiffs claim the knowledge jail personnel are monitoring and/or recording their attorney/client privileged telephone conversations has resulted in a serious chilling effect upon their ability to communicate with their attorneys via telephone. Amend. Compl. ¶ 77. This result has allegedly violated Plaintiffs’ freedom of speech. Id. ¶ 78. “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Pell v. Procunier, 417 U.S. 817, 822 (1974) (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)) (other citation omitted). “In the First Amendment context a corollary of this principle is that a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Id. “Prisoners’ First Amendment rights may be circumscribed if legitimate penological objectives outweigh preservation of their rights.” Davis v. Norris, 249 F.3d 800, 801 (8th Cir. 2001).
Plaintiffs’ fear jail personnel monitor their attorney/client phone calls is misplaced. If an inmate does not request a private attorney/client phone call, their call will be recorded. However, the inmate suffers no harm because jail personnel are trained to cease listening to attorney/client phone calls the moment they discover the participants of the call. The recording is then destroyed. Plaintiffs have no evidence individual Defendants used any information gleaned from an attorney/client phone call. Thus, Plaintiffs’ allegations regarding the recording of their attorney/client phone calls are unfounded.
Furthermore, safety of both staff and inmates is a strong penological interest. Recording telephone calls placed by detainees is crucial for the protection of eyewitnesses to crimes, protection of victims, jail security, and national security, among other concerns. See United States v. Hyles, 521 F.3d 946, 951-52 (8th Cir. 2008) (upholding conviction for conspiracy to use interstate facilities to commit murder for hire after conspiring with detainee to murder witness); United States v. Hammond, 286 F.3d 189 (4th Cir. 2002) (upholding denial of motion to suppress tapes of detainee tampering with a witness); United States v. Salameh, 152 F.3d 88, 108 (2d Cir. 1998) (monitoring detainee who was member of terrorist organization who spoke in code regarding bomb plot); United States v. Sababu, 891 F.2d 1308, 1328 (7th Cir. 1989) (discussing taped phone calls of detainee regarding elaborate prison escape conspiracy which also involved a detainee’s attorney); State v. Kennedy, 2008 Minn. App. Unpub. LEXIS 817, *12-16 (Minn. App. July 8, 2008) (attached to Aff. Tindal, Ex. P) (discussing detainee appellant’s use of other inmates’ identification numbers to place calls to friends and family members asking them to “get to” rape victim to prevent her from testifying).
In this case, the jail’s legitimate penological concern for the safety and security of the staff and inmates is rationally related to the practice of recording all calls and randomly monitoring non-attorney/client phone calls. Accordingly, Plaintiffs’ First Amendment claim must be dismissed.
B. No Fourth Amendment Violation.
Through the alleged practice of recording and monitoring attorney/client telephone calls, Plaintiffs claim Defendants directly violated their right against unreasonable searches. Amend. Compl. ¶¶ 79-83. The Fourth Amendment prohibits only unreasonable searches. Bell v. Wolfish, 441 U.S. 520, 558-60 (1979) (finding visible body cavity searches of all pretrial detainees reasonable when balancing the need for the particular search against the invasion of personal rights when considering 1) the justification for initiating the search and 2) the scope, manner and place of the search). Prison administrators are accorded “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell, at 547; Hudson v. Palmer, 468 U.S. 517, 529-30 (1984).
In United States v. Novak, 531 F.3d 99 (1st Cir. 2008), Holyoke was a prisoner in Massachusetts; Novak was his attorney. “Novak’s number was erroneously excluded from the list prison officials used to screen calls, and so the calls that Holyoke made to Novak were recorded.” Id. at 101. A police officer assigned to investigate Holyoke requested copies of recordings and listened to all calls made by Holyoke. Id. The officer realized he was listening to a privileged attorney-client communication, but did not stop listening to the recording. Id. The officer continued to monitor the calls between Holyoke and Novak. Id. The officer learned Holyoke wanted Novak to file a false affidavit. Id. Novak agreed to launder proceeds from drug trafficking, and to accept $60,000 in payment. Id. Officers asked Holyoke for his cooperation in an investigation into
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Novak and Holyoke agreed to further recordings of his phone conversations. Id. Novak was indicted on several federal crimes. Id. Novak filed a motion to suppress the recordings. Id. The First Circuit Court of Appeals reversed the district court’s suppression of the calls finding no Fourth Amendment violation occurred, even for the calls made prior to Holyoke’s consent to the recording. Id. at 104.
Here, Plaintiffs were made aware of the Defendants’ telephone call policy through the inmate handbook and telephone signage. If detainees or inmates wanted to make a private call, they informed jail staff of their attorney’s contact information. All calls to or from a number not on the Private List are recorded pursuant to penological interests because inmates do not have a legitimate expectation of privacy in those calls. If an attorney/client call is recorded, it is not monitored. Recording these calls alone does not constitute an unreasonable search in violation of the Fourth Amendment. The Jail has a very strong interest in preserving the safety and security of those in it; an equally efficient and less intrusive means of achieving this goal does not exist. Therefore, Plaintiffs’ Fourth Amendment claim should be dismissed.
C. No Fifth or Sixth Amendment Violations.
Plaintiffs claim information obtained from monitored or recorded attorney/client jail phone calls has been utilized for the purpose of prosecuting the detainees and inmates. Amend. Compl. ¶ 88. This practice has allegedly violated the Plaintiffs’ Fifth Amendment right against self incrimination. Id. ¶ 89. They also allege this practice violated their right to the effective assistance of counsel protected by the Sixth Amendment. Amend. Compl. ¶ 93.
These claims fail because no one listened to any calls between Andersen and his attorney. Baumann Dep. pp. 68-69, 106, 139; Omnibus Hearing Transcript, pp. 126, 138; Peterson Dep. p. 32; Soyring Dep. pp. 26, 33, 36. No investigation was initiated based on any information from a call between Andersen and his attorney. Omnibus Hearing Transcript, p. 127:1; Baumann Dep. pp. 106, 140-141; Aff. Baumann ¶ 2, report summarizing follow-up investigation. It is the jail’s policy not to monitor attorney/client calls. Becker County Sheriff’s Office Policies and Procedures Manual; Hodgson Dep. pp. 103, 138; Bauman Dep. p. 133.
D. No Due Process Violation.
Plaintiffs also allege a due process violation. Amend. Compl. ¶ 95. For a substantive due process violation, the government’s conduct somehow “must shock the conscience or otherwise offend our judicial notions of fairness, or must be offensive to human dignity.” See Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998).
Here, there is no shocking conduct. It is standard for jails to record inmate calls. Once the County realized Andersen’s calls were mistakenly not put on the Private List, this was corrected. No calls between Andersen and Holm and their attorneys were monitored. In inadvertently listening to the preliminary part of any of Andersen’s phone calls to his attorney or investigator, Baumann and McArthur never overheard any information about the case or about any potential witnesses and never initiated any investigation based upon what they heard in those telephone calls. Omnibus Hearing Transcript, pp. 129, 141-142. Accordingly, there is no due process violation.
VII. OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY.
Qualified immunity shields officers from suit “if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Hassan v. City of Minneapolis, 489 F.3d 914, 919 (8th Cir. 2007) (citing Sanders v. City of Minneapolis, 474 F.3d 523, 526 (8th Cir. 2007)). “Qualified immunity is not just a defense to liability, it constitutes immunity from suit.” Saucier v. Katz, 533 U.S. 194, 200, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001). “In addressing an officer’s claimed entitlement to qualified immunity, the court must first determine whether the allegations amount to a constitutional violation, and then, whether that right was clearly established.” Sanders, 474 F.3d at 526.
A. No Violation Of A Clearly Established Constitutional Right.
In order to conclude the individual Defendants violated a clearly established constitutional right, the Court must first determine whether Plaintiffs asserted a constitutional violation at all. Siegert v. Gilley, 500 U.S. 226, 232 (1991). Even if a constitutional right was alleged and violated, the right must have been clearly established at the time of the violation. “This
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inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. 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.
(emphasis added). It is Plaintiff’s burden to show the asserted right was clearly established. Davis v. Scherer, 468 U.S. 183, 197 (1984).
The determination of clearly established law is a “purely legal question” in which the courts examine the specific conduct complained of, statutory and case precedent, and well-established general principles of law. Robinette v. Jones, 476 F.3d 585, 591 (8th Cir. 2007). This is because “[w]hether an official is entitled to qualified immunity depends upon the ‘objective legal reasonableness’ of the official’s actions ‘assessed in light of the legal rules that were ‘clearly established’ at the time of the actions in question.” Kenyon v. Edwards, 503 F.3d 722, 724 (8th Cir. 2007).
In this case, Plaintiffs failed to show a violation of a clearly established constitutional right. Defendants did not monitor Andersen’s and Holm’s calls with their attorneys. There is no clearly established case law requiring specific jail procedures for inmate private calls with attorneys be in writing. Captain McArthur and Sheriff Gordon were not aware the procedure for placing numbers on a Private List changed on Reliance’s system prior to Andersen raising the issue. They were not aware calling Reliance was not sufficient to put a number on the Private List. Accordingly, there was no violation of a clearly established right.
B. Officers’ Actions Were Objectively Reasonable.
Even if this Court determines there was a violation of a clearly established right, the officers are entitled to qualified immunity because their actions were objectively reasonable. Qualified immunity is not analyzed based on hindsight, but rather from the perspective of a reasonable officer under the circumstances. Foster v. Metro. Air. Com., 914 F.2d 1076, 1083 (8th Cir. 1990). Officers are entitled to qualified immunity even if they were mistaken as to their understanding of the circumstances. Saucier v. Katz, 533 U.S. 194, 205-206 (2001). In Malley v. Briggs, 475 U.S. 335, 343 (1986), the Supreme Court explained:
[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 can disagree on this issue, immunity should be recognized.
Id. at 353. Here, there is no evidence any other reasonably competent official would not have acted in the same fashion. No attorney/client calls are monitored. Once the County realized there was a change in procedure with how to place attorney numbers on the Private List, they corrected their internal procedures.12 Accordingly, Sheriff Gordon and Captain McArthur are entitled to qualified immunity.
VIII. PLAINTIFFS FAIL TO ESTABLISH A VIABLE MONELL CLAIM.
“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.
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 of Little 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.
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ex rel. Delores A. v. Board of Education, 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 matters.” Id.
It is the County’s policy not to monitor attorney/client calls. There was no violation of the policy. Furthermore, an isolated incident does not amount to a pattern of unconstitutional conduct.
Bulmer claims the County has a constitutional obligation to inform inmates in writing, in at least seven languages, how to make a request for a private call to an attorney. Bulmer Dep. pp. 42, 54. There is no constitutional requirement the County explain this procedure in writing to inmates, much less in several languages. There is no constitutional requirement for what the County’s policy or posting should state. Simply because Plaintiffs do not like the language of these policies does not amount to a constitutional violation.
Additionally, there is no constitutional requirement for inmates to have access to attorney’s cell phones. It is a security risk to allow placement of a cell phone number on the Private List. Hodgson Dep. p. 85. Cell phones can get lost and the jail cannot verify who is in control of the cell phone. Id. Attorneys have also abused Reliance’s “free” system (Becker County contracts with Reliance to provide inmates free calls to their attorneys) by allowing an inmate’s family member to talk at length to the inmate. Gilmore Aff. ¶ 2.13
B. No Evidence of Unconstitutional Custom.
To establish the existence of a municipal custom, Plaintiffs must satisfy three requirements: 1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; 2) deliberate indifference to, or tacit authorization of, such conduct by the governmental entity’s policymaking officials after notice to the officials of the misconduct; and 3) th[e] plaintiff[’s] injur[y] by acts pursuant to the governmental entity’s custom, i.e. [proof] that the custom was the moving force behind the constitutional violation. Mettler, 165 F.3d at 1204 (quoting Ware v. Jackson County, 150 F.3d 873, 880 (8th Cir. 1998)).
Under Mettler’s first requirement, Plaintiffs must present a “continuing widespread, persistent pattern of unconstitutional misconduct.” 165 F.3d at 1204. Plaintiffs cannot meet this requirement. The County believed Andersen’s calls to his attorney’s landline numbers were private. When they learned Reliance’s procedure for making a call private changed, they changed their procedure. None of Andersen’s calls with his attorney were monitored or used against him. There is no evidence Holm’s calls to his attorneys were not private. Isolated incidents cannot, as a matter of law, be said to establish a persistent widespread pattern of unconstitutional misconduct. See Thelma D. Ex. Rel. Delores A. v. Board of Education, 934 F.2d 929, 933 (8th Cir. 1991). The County’s reasonable mistake in Andersen’s case does not establish the pattern required. Therefore, Plaintiffs are unable to present a “continuing widespread, persistent pattern of unconstitutional misconduct.”
Under Mettler’s second prong, Plaintiffs cannot provide any evidence the County was deliberately indifferent to, or tacitly authorized the alleged unconstitutional behavior. The County corrected its own procedure for putting numbers on the Private List when it realized Reliance’s system had changed. There is no evidence of other inmate’s requests for private calls not being added to the Private List.
Furthermore, even if this Court finds there was prior unconstitutional behavior, which there clearly was not, Plaintiffs must present evidence the County was deliberately indifferent to complaints received prior to Plaintiffs’ alleged constitutional violations. See Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (affirming summary judgment where there was no evidence the municipality had been deliberately indifferent to complaints received prior to the constitutional violations alleged in plaintiff’s complaint). Because Plaintiffs cannot show there were previous unconstitutional violations, or the County was deliberately indifferent to the prior alleged violations, their Monell claim cannot succeed.
Third, Plaintiffs must prove the County’s alleged custom of violating the constitutional rights of individuals caused his injuries. See Board of County Comm’rs v. Brown, 117 S.Ct. 1382, 1388 (1997) (“The plaintiff must ... demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.”) Since Plaintiffs are unable to show the County has an unconstitutional custom, practice or policy, they are also unable to show “the custom was the moving force behind the constitutional violation.” Additionally, as explained above, Holm’s calls with attorneys were not recorded and the state court correctly found Andersen was not injured by any alleged recording of his calls with attorneys.
It is clear phone calls are monitored and/or recorded unless the request is made for a private phone call to an attorney. Then
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verification is needed to ensure the call is placed to an attorney. There is no constitutional violation when detainees/inmates can have a private telephone conference with their attorney. Plaintiffs have not met their burden of showing Becker County’s policies are unconstitutional. Accordingly, Plaintiffs’ Monell claim should be dismissed
IX. THERE WAS NO VIOLATION OF THE MINNESOTA CONSTITUTION.
Plaintiffs allege violations of Article I Sections 6, 7 and 10 of the Minnesota Constitution. Amend. Compl. ¶¶ 79-83 & 90-95. Plaintiffs’ allegations are fundamentally flawed because there is no private cause of action for violation of the Minnesota Constitution. Quite v. Wright, 976 F.Supp. 866, 871 (D. Minn. 1997). “Minnesota courts have yet to recognize a civil cause of action for an unreasonable seizure.” Goldberg v. Hennepin County, No. 03-3110, 2004 U.S. Dist. LEXIS 11404, *9 (D. Minn. June 18, 2004) (attached to Aff. Tindal, Ex. Q); see also Luckes v. Hennepin County, No. 03-31111, 2004 U.S. Dist. LEXIS 14385 (D. Minn. July 28, 2004) (attached to Aff. Tindal, Ex. R). Additionally, “Minnesota courts have consistently held that there is no private right to monetary damages for deprivation of due process rights under the Minnesota Constitution.” Honan v. County of Cottonwood, A04-1636, 2005 Minn. App. LEXIS 235, * 11 (Minn. App. Aug. 30, 2005) (attached to Aff. Tindal, Ex. S); N. Star Legal Found. v. Honeywell Project, 355 N.W.2d 186, 188 (Minn. App. 1984), review denied (Minn. Jan. 2, 1985).
Additionally, Article I, Sections 6, 7, and 10 of the Minnesota Constitution cannot be violated without a violation of the corresponding federal civil rights under the Fourth, Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution. State v. Carter, 596 N.W.2d 654, 656 (Minn. 1999) (finding the right to challenge any search under the Minnesota Constitution coextensive with and not greater than the same right under the U.S. Constitution); Yanke v. City of Delano, 393 F. Supp. 2d 874, 879 (D. Minn. 2005) (holding due process protection provided under the Minnesota and U.S. Constitutions identical). As discussed above, Plaintiffs cannot show any of their federal civil rights were violated. Thus, Plaintiffs’ claims under the Minnesota Constitution should be dismissed for failure to state a claim upon which relief can be granted.
X. THERE WAS NO VIOLATION OF MINNESOTA STATUTES § 481.10, SUBDIVISION 2.
Plaintiffs allege Becker County deprived them of their right to private and confidential phone calls with attorneys in violation of Minn. Stat. § 481.10. See Amended Compl. Minn. Stat. § 481.10, Subd. 2 states:
[O]fficers or persons having in their custody a person restrained of liberty whether or not the person restrained has been charged, tried, or convicted, shall provide private telephone access to any attorney retained by or on behalf of the person restrained, or whom the restrained person may desire to consult at no charge to the attorney or to the person restrained. Reasonable telephone access under this subdivision shall be provided following the request of the person restrained and before other proceedings shall be had regarding the alleged offense causing custody.
The Minnesota Supreme Court held, when a defendant is in custody, any conversations between the accused and his counsel, which are overheard by police officers, are excluded from evidence. See State v. Held, 246 N.W.2d 863, 864 (Minn. 1976). This evidentiary standard satisfies the privacy requirements of Minn. Stat. § 481.10. Id.; Shovein v. Commissioner of Public Safety, 357 N.W.2d 386, 388 (Minn. App. 1984). There is no indication any statement between Plaintiffs and their attorney were used against them in a criminal manner. To the contrary, the criminal district court found Andersen was given reasonable access to his attorneys.
Additionally, the law only requires reasonable access to an attorney. See Mullins v. Churchill, 616 N.W.2d 764 (Minn. App. 2000) (court rejected inmates’ objection to requirement they request to call attorney in writing finding statute only requires reasonable access). Becker County puts very little limitation on the ability of a detainee/inmate to contact their attorney. Aff Gordon ¶ 7. After a request for a private attorney call and verification, Becker County allows detainees/inmates in the jail to contact their attorneys from 7:00 a.m. to 11:00 p.m., seven days a week, at no charge. Id. The telephone calls made by the detainees/inmates must be to their attorneys on an approved landline so the Jail can verify exactly who is receiving the telephone call. The Jail cannot verify who the receiver of a call is on a cell phone. Id. Plaintiffs have provided no support for the assertion cell phones of attorneys should be placed on the Private List. Providing Plaintiffs private calls to their attorneys’ landline numbers is reasonable. Andersen had private access to his attorneys on at least three landline numbers. Holm also had private access to his attorneys on landline numbers. Accordingly, Plaintiffs were given reasonable access to their attorneys.
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XI. THERE WAS NO VIOLATION OF MINNESOTA STATUTES § 626A.02.
Plaintiffs allege Defendants’ policies and practices regarding telephone calls violated Plaintiffs’ right to be free from illegal wiretaps under Minnesota Statutes § 626A.02. Amend. Compl. ¶¶ 110-11. Minn. Stat. § 626A.02 is Minnesota’s version of Title III of the Federal Omnibus Crime Control and Safe Streets Act discussed above. A person who intentionally uses any electronic, mechanical, or other device to intercept any communication or intentionally uses the contents of such communication is subject to suit. Minn. Stat. § 626A.02 subd. 1. Excluded however from the definition of “electronic, mechanical or other device” is a telephone instrument used by law enforcement in the ordinary course of duties. Minn. Stat. § 626A.01, subd. 6.
For the same reasons Plaintiffs’ claim fails under the Crime Control Act above, Plaintiffs’ claim under Minn. Stat. §626A.01 also fails. State v. Pendleton, 759 N.W.2d 900, 906 (Minn. 2009) (referencing a recorded jail phone call made by a detainee/inmate); see also State v. Stoltz, A03-748, 2004 Minn. App. LEXIS 396, *4 (Minn. App. April, 27, 2004) (attached to Aff. Tindal, Ex. T); State v. King, C5-99-1710, 2000 Minn. App. LEXIS 878 (Minn. App. Aug. 15, 2000) (attached to Aff. Tindal, Ex. U); State v. Page, 386 N.W.2d 330 (Minn. App. 1986) (holding the officer’s eavesdropping while investigating a crime was an ordinary law enforcement tool and consistent with public policy). Thus, there was no violation of Minn. Stat. § 626A.02 because the recording of Plaintiffs’ phone calls was conducted in the ordinary course of jail administration, and there is no evidence information from the attorney/client phone calls was used in any way.
XII. THERE WAS NO VIOLATION OF MINNESOTA COMMON LAW.
Plaintiffs claim the Defendants’ policies and practices of communicating the procedure for requesting a call not be recorded “are a gross intrusion upon the attorney/client privilege and the fundamental right to privacy and seclusion of plaintiffs ... guaranteed by Minnesota law ... Defendants’ actions shock the conscience, are patently offensive to reasonable members of society and are actionable pursuant to Minn. Stat. § 466.02.” Amend. Compl. ¶¶ 117-18. Minnesota Statutes § 466.02 states “every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.” Minnesota’s common law guarantees a right to privacy and allows for causes of action in tort for intrusion upon seclusion. Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 235 (Minn. 1998). “Intrusion upon seclusion occurs when one ‘intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns ... if the intrusion would be highly offensive to a reasonable person.” Id. at 233. The tort “has three elements: (a) an intrusion; (b) that is highly offensive; and (c) into some matter in which a person has a legitimate expectation of privacy.” Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 744 (Minn. App. 2001). To establish liability for intrusion upon seclusion, the defendant’s interference with the plaintiff’s seclusion must be substantial, must be of a kind that would be highly offensive to a reasonable person, and must be a result of conduct to which a reasonable person would strongly object. Id. at 745.
In this case, Defendants did not use Plaintiffs’ recorded telephone calls in any way. County employees ceased listening and immediately destroyed any attorney/client telephone call recordings. Plaintiffs do not have any evidence to the contrary. Additionally, the fact detainee/inmate attorney/client conversations are recorded, but not monitored, is not a substantial interference with the inmate/detainee’s seclusion that would be highly offensive to a reasonable person. A reasonable person would expect all phone calls to and from a jail to be recorded for jail safety until arrangements can be made to put an attorney’s phone number on the Private List. A reasonable person would not find recording of an attorney/client conversation alone, without monitoring, highly offensive. Therefore, Plaintiffs’ claim for intrusion upon seclusion must be dismissed.
XIII. THERE WAS NO VIOLATION OF MINNESOTA COMMON LAW REGARDING MISAPPROPRIATION OF ATTORNEY WORK PRODUCT.
In their Amended Complaint, Plaintiffs allege telephone communications between the attorney plaintiffs and their clients contained trade secret attorney work product which had independent economic value. Amend. Compl. ¶¶ 120-121. The value of this attorney work product was severely diminished as a result of Defendants’ improper monitoring and/or recording of such attorney/client phone calls. Id. ¶ 123-126. To be a “trade secret,” information must have “independent economic value” as a result of not being generally known or readily ascertainable by persons who can make use of the information. Minn. Stat. § 325C.01, subd. 5(i); Rehabilitation Specialists, Inc. v. Koering, 404 N.W.2d 301, 306 (Minn. App. 1987).
Plaintiffs have not demonstrated the independent economic value of their attorney work product. No information was gained
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or investigation initiated as a result of Andersen’s calls with his attorneys. Therefore, this claim also fails.
XIV. DEFENDANTS ARE ENTITLED TO OFFICIAL IMMUNITY.
“Official immunity is a common law doctrine that protects government officials from suit for discretionary actions taken by them in the course of their official duties.” Hyatt v. Anoka Police Dep’t, 700 N.W.2d 502, 507 (Minn. App. 2005). The broad doctrine of official immunity “protect[s] all but the plainly incompetent or those who knowingly violate the law.” Dokman v. County of Hennepin, 637 N.W.2d 286, 292 (Minn. App. 2001). If an individual public official is found to be immune, the government employer will enjoy vicarious official immunity from a suit arising from the employee’s conduct. Schroeder v. St. Louis County, 708 N.W.2d 497, 508 (Minn. 2006). Official immunity protects discretionary and not ministerial functions. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004). Determining whether official immunity is available in a given context requires a two-step inquiry: “(1) whether the challenged conduct was discretionary or ministerial; and (2) whether the challenged conduct, even though of the type normally subject to official immunity, was malicious or willful and therefore not subject to the protection of official immunity.” Bailey v. City of St. Paul, 678 N.W.2d 697, 701 (Minn. App. 2004).
A. The Defendants’ Actions Were Discretionary.
Ministerial duties are “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts.” Schroeder, 708 N.W.2d 497, 506 (Minn. 2006). “A ministerial duty is simple and definite, leaving nothing to the discretion of the official.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn. 1999). Discretionary duties involve independent professional judgment reflecting the professional goals and factors of a situation. Id. The Sheriff and McArthur exercised their professional judgment to not place attorney cell phones on the Private List.14 County officials also exercised judgment in promulgating the County’s written policies and postings. There is no question their actions were discretionary.
B. The Defendants’ Did Not Act Willfully or Maliciously.
A public official has no immunity from suit if he commits a willful or malicious wrong. Janklow v. Minn. Bd. Of Examiners, 552 N.W.2d 711, 716 (Minn. 1996). Malice “means nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citations omitted). Plaintiffs are required to present “specific facts evidencing bad faith” rather than “bare allegations of malice.” Reuter v. City of New Hope, 449 N.W.2d 745, 751 (Minn. App. 1990). Plaintiffs can present no evidence the Sheriff or McArthur acted in bad faith. Accordingly, they are entitled to official immunity.
C. Becker County is Entitled to Vicarious Official Immunity.
A court determines whether vicarious official immunity protects a governmental entity from liability after it determines if official immunity applies to an individual’s challenged behavior. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998). “[I]t would be anomalous” to impose liability on the government employer for the very same acts for which the employee receives immunity. Id. “The purpose of official immunity is to avoid judicial scrutiny where public officials must exercise independent judgment.” S.L.D. v. Kranz, 498 N.W.2d 47, 51 (Minn. App. 1993). The failure to extend the immunity to Becker County could deter Becker County employees from exercising their independent judgment in the future. Id. Accordingly, because the individual Defendants are entitled to official immunity, Becker County is also entitled to the protection of vicarious official immunity.
CONCLUSION
In summary, Defendants respectfully request this Court grant their motion for summary judgment and dismiss Plaintiffs’ claims in their entirety with prejudice.
Dated: June 30, 2009
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Footnotes

1

Plaintiffs have alleged, but not brought, a Rule 23 motion. Defendants dispute Plaintiffs’ claims meet the criteria in Federal Rule

23(a).

2

The Affidavit of Tim Gordon was previously filed as Docket No. 25.

3

In December 2008, the Inmate Handbook was revised to add a written explanation for how an inmate is to request a private call

with his/her attorney. Hodgson Dep. p. 41, Ex. 2, p. 9. The postings in the jail and by inmate phones were also amended to provide

this procedure to inmates in writing. Id. at p. 51, Ex. 4.

4

The list of non-recorded numbers has been referred to as the “attorney list,” “private list,” “blocked” numbers, or “Do Not Record

List.” For the purposes of this Memorandum, it is referred to as “Private List.”

5

Judge Irvine ordered Becker County to put attorney cell phones on the private list. Becker County complied with this request. Aff.

Gordon ¶ 11 (filed Dec. 11, 2008); Hodgson Dep. pp. 82, 132, 143-144.

6

At Holm’s plea hearing, he and his attorney indicated a jury would find him guilty. Aff. Tindal, Ex. H - August 18, 2008 transcript

of hearing, p. 11.

7

Bulmer’s claims should also be dismissed because they are tied to his representation of Andersen and the issues were litigated in

Andersen’s criminal case.

8

Bulmer claims Becker County would not have interviewed Dan Clark if they had not listened to his conversations with Andersen.

Bulmer Dep. p. 60. McArthur interviewed Clark on April 27, 2007. Aff. McArthur, Ex. 2 - investigative report. This was before

Andersen was in the jail and two months before Bulmer began representing Andersen. Bulmer Dep. p. 9. Bulmer acknowledges he

does not know whether Andersen told other individuals the same information he told his attorneys. Id. pp. 33-34.

9

The attorney/client privilege is personal and cannot be asserted by anyone other than the client. See United States v. Escobar, 50

F.3d 1414, 1422 (8th Cir. 1995).

10 Bulmer has not represented any other inmate in the jail besides Andersen. Bulmer Dep. p. 40. Andersen’s other attorneys, including Durkin who represented him at trial, declined to be Plaintiffs in this lawsuit. Bulmer Dep. p. 38.

11 Dell Holm was represented by Darlene Rivera from May 2008 to October 2008. Aff. Tindal, Ex. A - Plaintiffs’ Answers to Defendants’ Interrogatories, p. 25. Ms. Rivera’s 218-779-5300 number shows no call history from the jail. Aff. Hodgson, Ex. A Digital Informant Search. Ms. Rivera’s 218-844-0800 number shows the first private call was placed on 5/20/08 and the last private call was on 9/30/08. Aff. Gilmore, Ex. 1 - Becker County MN Private Number Summary. Bruce Ringstrom represented Dell Holm from September 2008 to March 2009. Plaintiffs’ Answers to Defendants’ Interrogatories, p. 25. Mr. Ringstrom’s 218-2364606 number was private beginning 9/18/08. Becker County MN Private Number Summary. Mr. Ringstrom’s prior number, 218846-9344, was private from May 2007 through July 2008. Id. Mr. Ringstrom’s 218-236-0849 number is disconnected and no calls from the Jail to this number have been connected. Aff. Gilmore ¶ 6, Ex. 4 - notes regarding conversations with Hodgson. Accordingly, the records indicate there were no calls Mr. Holm made to his attorneys that were recorded.

12 To the County’s knowledge, Andersen made the first request for private calls with an attorney after Reliance’s procedures changed. Aff. of McArthur, Exh. 1 - Letter to County Attorney Fritz.

13 To the extent Plaintiffs’ Complaint is interpreted as a failure to train claim against Sheriff Gordon, their claim fails. The Supreme Court has held there is a limited cause of action against a municipal corporation for failure to train its employees where the failure to train reflects deliberate indifference to the constitutional rights of the municipal corporation’s inhabitants and proximately causes the plaintiff’s constitutional deprivation. City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989). The court was careful to limit this holding to require specific proof of such a de facto policy and stated the mere proof of an isolated incident or a negligently administered program is not enough. Id. at 390-91 (citations omitted). To survive summary judgment on this claim, Plaintiffs must provide evidence the County was on notice its training procedures were inadequate and likely to result in a violation of constitutional rights. Larkin v. St. Louis, 355 F.3d 1114, 1117 (8th Cir. 2004). Plaintiffs failed to produce any evidence to support a claim of inadequate training. There is no evidence the County was deliberately indifferent to complaints received prior to Andersen’s alleged constitutional violations; indeed because there are none. See Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996) (affirming a district court’s grant of summary judgment where there was no evidence the municipality had been deliberately indifferent to complaints received prior to the constitutional violations alleged in plaintiff’s complaint). Once the County realized the procedure for placing attorney numbers on a private list changed, they took steps to remedy the issue and change the way requests for private calls were handled. There is simply no evidentiary support for the allegation the County was on notice of the alleged constitutional violation and was deliberately indifferent or tacitly authorized alleged constitutional violations.

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14 However, the Jail currently complies with this Court’s Order and allows attorney cell phones on the Private List. \

 
 2009 WL 4563526 (D.Minn.) (Trial Motion, Memorandum and Affidavit) United States District Court, D. Minnesota. Fourth Division
Kenneth E. ANDERSEN and Dell D. Holm, On behalf of themselves and all others similarly situated, and William K. Bulmer, II, On behalf of himself and all others similarly situated, Plaintiffs, v.
THE COUNTY OF BECKER, MINNESOTA, Tim Gordon, in his capacity as Sheriff of Becker County, and Joseph H. McArthur, in his capacity as Captain in the Becker County Sheriff’s Department, Defendants.
No. 08-CV-5687. July 27, 2009.
Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment
Mara R. Thompson (MN No. 196125), Dan Bryden (MN No. 302284), Jeffrey A. Abrahamson (MN No. 338187), Sprenger & Lang, PLLC, 310 Fourth Avenue S., Suite 600, Minneapolis, MN 55403, Telephone: (612) 871-8910, Fax: (612) 8719270, Attorneys’ for Plaintiffs.
INTRODUCTION
There is no dispute that when Plaintiffs were in custody, it was the jail’s policy to record and monitor all telephone calls made by inmates at the jail. The recordings of these calls were stored on the computer system at the jail, and no security measures were in place to protect the confidentiality of the calls. Virtually anyone at the jail with access to the computer system could listen to the recordings. The jail did not maintain any log of who accessed these recordings, but circumstantial evidence strongly supports the inference that jail personnel routinely listened to these recordings and listened to the substance of the telephone calls.
One of Defendants’ primary purposes for recording and monitoring inmate calls is to gather evidence to be used in the prosecution of criminal cases. Accordingly, these recordings were all forwarded to the appropriate law enforcement personnel -- i.e., the Becker County Attorney’s office or a Minnesota Bureau of Criminal Apprehension investigator -- involved in the investigation and prosecution of the relevant inmate’s criminal matter. Accordingly, the law enforcement official in charge of the investigation against the inmate was given the recordings. The investigators deposed in this action admitted that they often had to listen to these recordings for some time -- in a number of instances, even hearing some substance of the conversation -- before they could determine that the calls were attorney-client phone calls.
The only exception to this recording and monitoring relates to the “Do Not Record” or “Private Number” list (hereinafter, “List”). This List contains numbers that are not to be recorded -- such as attorney numbers. But it was not until after this litigation was initiated that the jail actually informed persons in custody about the List.
Moreover, the language in the Inmate Handbook and the signs posted by the phones in the jail stated that attorney-client phone calls were not recorded, which was patently untrue, and provided no notice about the List. Plaintiffs in this action were not aware of the List until many of their privileged calls had been recorded.
There is no written policy at the jail regarding how inmates are informed about the List, and no unwritten policy either -- at least not one that anyone followed. Even after jail personnel and investigators recorded telephone calls between one of the Plaintiffs and his attorneys for nearly four months -- and handed all of those recordings to the prosecution’s investigator as they were preparing for trial -- no one bothered to tell the Plaintiff or his attorneys that his privileged calls were being recorded, or how to have his attorneys’ numbers placed on the List.
Defendants have also created numerous fact issues with their own inconsistent and contradictory testimony relating to the Jail’s telephone policies. Specifically, whether telephone calls between inmates and investigators hired by the inmate’s attorneys were treated as privileged. The Captain in charge of administering the jail when the Plaintiffs were in custody

testified that the jail never considered such calls privileged, and therefore recorded and monitored investigator calls. The current jail administrator contradicted this testimony and believes that such calls were treated as privileged in the past.
Coupled with their destruction of recordings that Plaintiffs’ counsel specifically asked the Defendants to preserve, the facts and law preclude summary judgment in favor of Defendants.
STATEMENT OF FACTS
I. Defendants’ Policies and Procedures Regarding Attorney-Client Telephone Calls at the Jail
The Jail’s policy is to automatically record the telephone calls of all inmates -- unless the number called by the inmate has been placed on the List by Jail personnel. (Omnibus Hr’g. pp. 120-22; Hodgson Dep. pp.78-79).1 All inmate telephone calls to numbers that are not on the List may be listened to or “monitored” by Becker County Jail staff (“Jail staff”) and Becker County law enforcement personnel (“Law Enforcement”). (Hodgson Dep. pp.61-64; 139-40). This is true for any inmate telephone calls to attorneys or to agents of attorneys such as private investigators. (Id. p.79-80).
The Jail’s policy does not lallow the cellular numbers of Attorneys to be placed on the List, (Omnibus Hr’g. pp. 132-35; Abrahamson Decl. Ex. B and C), nor are landline or cellular numbers of private investigators allowed on the List. (Abrahamson Decl. Ex. B and D; Omnibus Hr’g. pp. 133-34; 137).
Accordingly, Plaintiffs’ telephone calls to their attorneys’ cellular numbers -- and to any of the investigators’ numbers -were being recorded and monitored. (Hodgson Dep. pp.79-80). At this same time, however, the Jail was allowing some inmates to make attorney-client privileged telephone calls to the cellular telephones of at least two attorneys at the Tribal Defenders’ Office -- which undermines Defendants’ argument that private calls are not allowed to cellular telephones due to safety and security risks. (Id. pp.86-87).
Moreover, Reliance informed Andersen’s attorneys that their cellular numbers could be placed on the List. (Abrahamson Decl. Ex. E.)
Jail staff have unlimited and unrestricted access to the recorded inmate telephone calls. (Hodgson Dep. pp.98-101; 131). Accordingly, there is nothing to stop either Defendants, Law Enforcement personnel, or Jail staff from listening to inmate telephone calls at any time -- even attorney-client telephone calls. (Omnibus Hr’g. pp. 136-37; Hodgson Dep. pp.78-81). Similarly, the Jail does not maintain records of who accesses the telephone system and listens to inmate telephone calls -thus, there is no way to determine if Defendants or Jail staff listened to Plaintiffs’ attorney-client telephone calls. (Hodgson Dep. pp. 139-40).
Importantly, the Jail has never implemented a written policy forbidding Jail staff and Law Enforcement personnel from listening to or monitoring telephone calls between inmates and their attorneys, or between inmates and agents of their attorneys. (Id. pp.109; 113).
Similarly, there is no written policy requiring that Jail staff and Law Enforcement personnel inform inmates about the Jail’s policies and procedures regarding inmate telephone calls to attorneys. (Id. 48-50). Under the Jail’s policies in effect until December 31, 2008, neither the Inmate Handbook nor the signs posted near the inmate telephones at the Jail contained any information regarding how an inmate could request or arrange a private telephone call with an attorney. (First Am. Compl. Ex. 1 and 2; Hodgson Dep. pp.45-46, 51-53).
Inmates are not provided with a copy of the Inmate Handbook unless they request one, and Jail staff generally do not inform inmates of the procedure to request a private, confidential call with an attorney unless an inmate specifically asks. (Hodgson Dep. pp. 135, 152-53). Instead, inmates at the Jail either never find out that they need to, or how to, arrange a private call with their attorney, or they learn about how to arrange a private call from other inmates. (Soyring Dep. p. 19).
The Inmate Handbook and signs posted near the inmate telephones when Plaintiffs were inmates at the Jail did not include any language regarding private telephone calls to investigators or other agents of an inmate’s attorney. (First Am. Compl. Ex. 1 and 2; Hodgson Dep. pp.45-56). Instead, the Inmate Handbook stated: “Any non-attorney/client privileged phone calls made from Becker County Jail will be monitored and/or recorded.” (First Am. Compl. Ex. 1, p.9) (emphasis added).

Likewise, the signs posted by the inmate telephones stated: “All phone calls and messages to and from the Becker County Jail are monitored and/or recorded. This includes the visiting booths. Exceptions are phone calls made to an attorney.” (First Am. Compl. Ex. 2) (emphasis added).
Additionally, Andersen provided Jail staff with his attorneys’ business cards, and the business card of the investigator hired by his attorneys -- which included office and cellular numbers for his attorneys and the investigator. (Andersen Decl. ¶¶2022). This reinforced Andersen’s belief that his telephone calls to his attorneys and the investigator were private. (Id. ¶16).
Accordingly, Andersen and his attorneys believed their telephone calls were confidential. (Andersen Decl. ¶16; Bulmer Dep. p.78).
II. Defendants’ Control Over the Jail’s Telephone System
a. Jail Staff and Law Enforcement Personnel have Access to the Recordings of Inmate Telephone Calls
The audio recordings of inmate telephone calls are physically stored on the computer system at the Jail. (Hodgson Dep. p.92). The computer system allows Jail staff and Law Enforcement personnel to search the audio recordings of inmate telephone calls a number of different ways. (Id. pp.76-77).
As noted above, Law Enforcement personnel and Jail staff have unfettered access to the computer system, unsupervised, any time of the day or night -- and they routinely search and listen to recordings of inmate telephone calls. (Hodgson Dep. pp. 139-40).
The primary purpose of recording and monitoring inmate telephone calls is to assist law enforcement in investigating and prosecuting the inmate’s criminal case. (Baumann Dep. p.41).
Importantly, all Jail staff and Becker County criminal investigators -- including Defendant Joe McArthur (“McArthur”) -have access to the computer system and recordings of inmates’ telephone calls. (Hodgson Dep. pp.98-101). The criminal investigators can access the computer system and listen to the recordings of inmate calls directly from the computers in their offices. (Id. pp. 130-31).
b. Defendants Control the Physical Computer System that Records and Stores Inmate Telephone Calls
The computer system that records inmate telephone calls is physically located at the Jail. (Id. p.92). This includes the computer hard drives that store the recordings of the inmate calls. (Id.). The Jail controls the amount of computer storage space the system has to store and maintain the recorded inmate telephone calls. (Id. pp.91-93).
From at least September of 2006 to early May 2009, the system had the capacity to store approximately 244 days worth of audio recordings of inmate calls at the Jail. (Id. pp.93-96). Once the computer system reached its 244 day capacity, the system would begin over-writing the oldest recordings. (Id. pp.93-95). At the time this suit was filed on October 15, 2008, the computer system at the Jail would have held approximately 244 days worth of recordings of inmate calls -- dating back to approximately February 15, 2008. (Id. pp.96-98). As further set forth below, Defendants have destroyed virtually all, if not all, of these recordings.
III. Defendants Monitored Inmates’ Attorney-Client Privileged Telephone Calls
The Jail does not have any written policy prohibiting Jail staff or Law Enforcement personnel from monitoring recordings of inmates’ calls. (Id. p. 109). This is true for attorney-client telephone calls that are recorded on the Jail’s system as well. (Id. pp. 101-04). Absent such a policy, any attorney-client calls recorded on the Jail’s system are subject to indiscriminate monitoring by Jail staff and Law Enforcement personnel. (Id. pp.97-106, 113-14).
McArthur monitored Andersen’s attorney-client privileged calls (Baumann dep. pp.47, 52-54); Becker County criminal investigator John Seiling (“Selling”) monitored Andersen’s attorney-client privileged calls (Id.); and Minnesota Bureau of Criminal Apprehension Special Agent Daniel Baumann (“Baumann”) monitored Andersen’s attorney-client calls. (Id. pp.47;

661-66).
Importantly, Baumann testified that he had to listen to the substance of the telephone call long enough to determine if the call was a privileged attorney-client call -- noting that in a number of instances he had to listen for more than a minute to make the determination. (Id.).
The circumstantial evidence in the record also indicates that Jail staff were listening to the substance of Plaintiffs’ attorneyclient calls as well. (Bulmer Dep. pp.61-64; 86-91).
Currently, the Jail’s policy allows any attorney-client calls recorded on the Jail’s computer system to be monitored by Jail staff and other law enforcement personnel. (Omnibus Hr’g. p. 120-22; Hodgson Dep. pp. 78-79). In fact, -- McArthur and Seiling -- can access and listen to inmate calls from the comfort of their own offices. (Hodgson Dep. pp. 130-31).
IV. Defendants Knew that Plaintiffs’ Attorney-Client Privileged Telephone Calls Were Being Recorded, But Did Nothing
Early in Andersen’s criminal case, McArthur provided copies of Andersen’s inmate calls to Baumann for review. (Baumann Dep. p.34). During this review, Baumann encountered recordings of Andersen’s calls to attorneys. (Id. pp.46-49; Abrahamson Decl. Ex. F). In his first report regarding Andersen’s calls, Baumann identified calls to nine different numbers that he verified belonged to attorneys. (Abrahamson Decl. Ex. F).
Included in the list of numbers were two that belonged to Andersen’s defense counsel: (1) 763-421-1441 -- Giancola Law Office (“Giancola Law Office”) land line; and (2) 612-384-7003 -- Cellular number of William K. Bulmer, II (“Bulmer”). (Id.).
Baumann distributed the report showing that the Jail was recording Andersen’s attorney-client calls -- and providing recordings of those calls to him for review -- to Becker County law enforcement John Seiling and John McArthur, Becker County Attorney Joe Evans and Al Zdrazil of the Minnesota Attorney General’s Office. (Id.).
Baumann specifically addressed his concerns about Andersen’s attorney-client calls being recorded with McArthur and the Becker County Attorney’s Office. (Baumann Dep. pp.64-66; 125-26).
Defendants continued to record Andersen’s attorney-client and investigator calls -- and continued to provide them to Baumann for review -- from June of 2007 until at least March 7, 2008. (Baumann Dep. pp.75-78).
No one informed the Jail administrator or other Jail staff that Andersen’s attorney-client calls were being recorded so that the attorneys’ numbers could be placed on the List. (Hodgson Dep. pp. 106-08; Baumann Dep. pp.81-88). No one informed Andersen or his attorneys either. (Omnibus Hr’g. pp. 134-37).
The office numbers of Andersen’s attorneys were not placed on the List until early December 2007 (Gilmore Aff Ex. 1) and the cellular numbers were not permanently placed on the List until March 7, 2008. (Abrahamson Decl. Ex. B and G; Baumann Dep. pp.75-78).
V. Plaintiffs’ Interactions and Experiences with the Jail
a. Kenneth E. Andersen
1. Jail Staff
On or about June 19, 2007, Andersen was “booked” into the Jail. (Andersen Decl. ¶2). During the booking process, Jail staff told Andersen that he could call an attorney. (Id. ¶4). However, Jail staff did not inform Andersen that his telephone calls to an attorney would be monitored and recorded unless the attorney’s number was on the List. (Id. ¶¶5-8). In fact, Jail staff did not even tell Andersen that a List existed. (Id.). Nor did Jail staff tell Andersen that he could request a private, confidential call to an attorney, or that the Jail had an unwritten policy that inmates had to follow to make such a request. (Id.).

2. Inmate Handbook
During booking, Jail staff provided Andersen with an “Inmate Handbook.” (Id. ¶9). The Inmate Handbook stated that “Any non-attorney/client privileged phone calls made from Becker County Jail will be monitored and/or recorded.” (Id. ¶¶11-13). Nothing in the Inmate Handbook indicated that attorney-client privileged calls could be monitored or recorded. (Id.; Omnibus Hr’g. pp.118, 134). Similarly, the Inmate Handbook said nothing about an inmate being required to make a special request to arrange an attorney-client call, or the procedure that an inmate was required to follow to make such a request. (Id.). There was no mention of a List either. (Andersen Decl. ¶13; Hodgson Dep. pp.52-54).
3. Postings By Inmate Telephones
At the Jail, Andersen observed signs posted near the inmate telephones that stated “All phone calls and messages to and from the Becker County Jail are monitored/or recorded. This includes the visiting booths. Exceptions are phone calls made to an attorney.” (Andersen Decl. ¶14). The signs posted by the inmate telephones didn’t say anything about a List. (Id. ¶15).
Moreover, as discussed below, Andersen provided Jail staff with his attorneys’ and the investigators’ business cards which included their numbers. (Id. ¶¶21-22).
Based on the Inmate Handbook, the signs posted near the inmate telephones and the fact that Jail staff knew who Andersen’s attorneys were -- and their numbers -- Andersen reasonably believed that any telephone calls he made to an attorney would be confidential. (Id. ¶16).
4. Andersen’s Attorneys Believed Their Telephone Calls with Andersen Were Private and Confidential
Shortly after being admitted to the Jail, Andersen hired the Giancola Law Firm to represent him. (Id. ¶18). The Giancola Law Firm is located in Anoka, Minnesota which is approximately 200 hundred miles from the Jail. (Bulmer Decl. ¶3). Mark Giancola (“Giancola”), Rory Durkin (“Durkin”) and William Bulmer, II (“Bulmer”) of the Giancola Law Firm represented Andersen in his criminal case. (Andersen Decl. ¶19).
Durkin and Bulmer first visited Andersen in late June or early July 2007. (Id. ¶20). During this first meeting, Durkin and Bulmer provided business cards to Andersen for themselves and Giancola which included office numbers and cellular numbers of each of the three attorneys. (Id. ¶20). Andersen provided the business cards to Jail staff so that Jail staff and Law Enforcement officers would know that they were his attorneys. (Id. ¶21). Jail staff made copies of the business cards and returned them to Andersen. (Id.).
Even after Andersen provided the business cards to Jail staff, his attorneys’ numbers were not placed on the List, nor was he even informed about the List. (Id. ¶¶23-28). Likewise, Jail staff never informed Andersen’s attorneys that their attorney-client telephone calls were being recorded, or of the existence of the List. (Omnibus Hr’g. pp. 134-37).
Since Andersen had provided Jail staff with their business cards and numbers, Andersen’s attorneys believed that their calls with Andersen were private and confidential. (Bulmer Dep. p.78).
5. Andersen and His Attorneys Believed Andersen’s Telephone Calls to Investigator Fladmark Were Private and Confidential
The Giancola Law Firm hired private investigator Glen Fladmark (“Fladmark”) to assist with the investigation of Andersen’s criminal case. (Andersen Decl. ¶¶22). Andersen provided Jail staff with Fladmark’s business card which included his name, and his office and cellular numbers so that Jail staff and Law Enforcement personnel were aware that Fladmark was the investigator working on his case. (Id.).
Jail staff copied Fladmark’s business card, but didn’t tell Andersen or his attorneys about the Jail’s unwritten policy that investigator calls were not considered confidential. (Andersen Decl. ¶¶23-28; Bulmer Dep. p.78). Accordingly, Andersen and his attorneys believed Andersen’s telephone calls with Fladmark were confidential. (Id.).
During the summer and fall of 2007, Andersen made hundreds of telephone calls to the office and cellular numbers of his

attorneys and Fladmark. (Andersen Decl. ¶¶29; Hodgson Aff Ex. A). During these calls, Andersen and his attorneys, and Fladmark discussed every aspect of Andersen’s criminal case including the names of potential witnesses -- and what those potential witnesses would know -- and detailed information about Andersen’s defenses. (Id.).
6. Andersen and His Attorneys Begin to Suspect that Jail Staff and Law Enforcement Were Listening to Their Attorney-Client Telephone Calls
In the fall of 2007, Durkin, Bulmer and Andersen began to suspect that their telephone calls and the telephone calls between Fladmark and Andersen were being listened to by Jail staff or members of Law Enforcement. (Id. ¶¶31).
Durkin and Bulmer attempted to test their theory that Jail staff were listening to their attorney-client calls. (Id. ¶¶32; Bulmer Dep. pp.61-64; 86-91). During telephone conversations with Andersen, Bulmer, Durkin and Fladmark told Andersen that they knew it was hard being locked up in the Jail and that they felt bad for Andersen. (Id.). The attorneys and Fladmark informed Andersen that they had access to illegal narcotics through other clients and would bring them to Andersen the next time they visited him. (Id.).
Within several days of these telephone conversations, Jail staff began asking Andersen when his attorneys were coming to visit him. (Andersen Decl. ¶32). Jail staff had never asked Andersen about his attorneys’ plans to visit him before this. (Id.). Jail staff also did more random “flips” or inspections of Andersen’s cell after the telephone calls about the pretend illegal narcotics. (Id. ¶34). During these flips, Jail staff searched Andersen’s cell more thoroughly than they had ever done during previous flips, and even searched through documents in Andersen’s cell marked “attorney-client privileged.” (Id.).
Bulmer was the first attorney to visit Andersen after the telephone calls about the pretend illegal narcotics. (Id. ¶35). When Bulmer arrived at the Jail, he was thoroughly searched -- both his person and all of his papers and briefcase. (Bulmer Dep. 61-64; 86-91). Bulmer had never been searched during any of his other visits to Andersen at the Jail. (Id.).
Andersen and his attorneys did not talk about the test with anyone at the Jail or anyone over the telephone other than each other. (Andersen Decl. ¶36; Bulmer Dep. pp.90-91). Andersen and his attorney are not aware of any way Jail staff could have known about the pretend illegal narcotics test unless Jail staff or Law Enforcement officers were listening to their attorneyclient calls. (Id.).
7. Andersen and His Attorneys Raise Their Concerns with the Becker County Attorney’s Office and Jail Staff
After the startling results of the test, Andersen and his attorneys raised the issue several times with the Becker County Attorney’s Office. (Bulmer Decl. pp.90-91). Each time, their complaints were summarily dismissed. (Id.).
Andersen and his attorneys also raised the issue with Jail staff. (Andersen Decl. ¶39; Bulmer Dep. pp. 91-92). Only then were they told about the Jail’s unwritten policy about arranging confidential calls between inmates and attorneys. (Andersen Decl. ¶¶39-40). Jail staff also told them about the List, and that if an attorney’s number was not on the list, the inmate’s calls to that number would automatically be recorded. (Id.).
This was the first time that Jail staff or Law Enforcement personnel informed Andersen, his attorneys, or Fladmark about the Jail’s policy for arranging attorney-client calls, or about the List. (Id.).
8. Jail Staff Never Informed Andersen or His Attorneys that the Jail Did Not Allow Private Calls to Attorneys’ Cellular Telephones or to Investigators
After Jail staff told Andersen and his attorneys about the Jail’s policy for requesting private calls, they again gave Jail staff their office and cellular numbers, and Fladmark’s numbers, and requested that the numbers be placed on the List. (Andersen Decl. ¶42). Andersen and his attorneys gave Jail staff the numbers in early December 2007. (Id.). They also provided their office and cellular numbers, and the office and cellular numbers of Fladmark, to Reliance Telephone on December 3, 2007. (Abrahamson Decl. Ex. H).
Jail staff didn’t tell Andersen or his attorneys that the Jail’s policy did not allow confidential calls to cellular telephones -- not even for attorneys. (Andersen Decl. ¶43). Jail staff also didn’t tell Andersen or his attorneys that the Jail’s policy did not

allow confidential calls to investigators. (Id.).2
9. Defendants Removed the Cellular Numbers of Andersen’s Attorneys from the List, But Didn’t Tell Andersen or His Attorneys
In early March 2008, Jail staff and Law Enforcement informed Andersen and his attorneys that the attorneys’ cellular numbers that had been placed on the List on or about December 3, 2007, had been removed from the list on December 5, 2007. (Andersen Decl. ¶¶46-48).
Defendant McArthur ordered Jail staff to remove the cellular numbers of Andersen’s attorneys pursuant to the Jail’s unwritten internal policy forbidding cellular numbers from being placed on the List -- even if the numbers are attorney cellular numbers. (Omnibus Hr’g. p. 132-35; Abrahamson Decl. Ex. B, C and D).
Because the cellular numbers were removed from the List, Andersen’s telephone calls to his attorneys’ cellular telephones after December 5, 2008 were recorded by the Jail. (Id.). Neither Jail staff nor Law Enforcement personnel told Andersen or his attorneys that the cellular numbers had been removed from the List, and were being recorded. (Id; Andersen Decl. ¶47).
10. Fladmark’s Numbers Were Not Placed on the List, But Jail Staff Did Not Inform Andersen or His Attorneys
Around this same time, Jail staff and Law Enforcement informed Andersen and his attorneys that the cellular number of Fladmark had not been placed on the List due to another unwritten internal Jail policy that inmate telephone calls to investigators are not considered confidential. (Andersen Decl. ¶50; Omnibus Hr’g. p. 132-35).
All of Andersen’s calls to Fladmark’s cellular number were recorded and subject to monitoring by Defendants.
11. The Court Orders Defendants to Place the Cellular Numbers of Andresen’s Attorneys on the List, But Fladmark’s Cellular Number Was Never Placed on the List
On March 7, 2008, pursuant to Judge Irvine’s Order, Defendants finally placed the cellular numbers of Andersen’s attorneys on the List. (Abrahamson Decl. Ex. I). Per Jail policy, however, Fladmark’s cellular number was never placed on the List. (Abrahamson Decl. Ex. D; Gilmore Aff. Ex. 1).
From Andersen’s admission to the Jail on June 19, 2007 until March 7, 2008, Andersen’s calls to his attorneys’ and the Fladmark were being recorded by Defendants. (Omnibus Hr’g. p. 132-35). The Giancola Law Office number, (763) 4211441, was not placed on the List until December 6, 2007. (Gilmore Aff. Ex. 1).
Attorney Durkin’s cellular number, (612) 272-0885, was not placed on the list until March 7, 2008. (Id.).
Attorney Bulmer’s cellular number, (612) 384-7003, was initially placed on the list on December 4, 2007 (Id.), but was removed from the list by Jail staff on December 5, 2007 (Abrahamson Decl. Ex. 3). Bulmer’s cellular number was not placed back on the List until March 7, 2008. (Abrahamson Decl. Ex. I).
Attorney Giancola’s cellular number, (612) 6362576, does not even appear on the list. (Gilmore Aff. Ex. 1).
Private Investigator Fladmark’s office numbers, (218) 842-5494 and (218) 998-2951, were not placed on the list until December 13, 2007 and March 5, 2008 respectively. (Id.). Fladmark’s cellular number, (218) 731-4027, was never placed on the list. (Id.; Abrahamson Decl. Ex. I).
Andersen’s calls to his attorneys and Fladmark, during the time periods the numbers were not on the List, were recorded by the Jail, and from the record evidence, apparently monitored by Jail staff and Law Enforcement personnel. (Hodgson Dep. pp.78-80; Bulmer Dep. pp.61-64; 86-91).
Because the Jail’s policy was that investigator calls were not privileged, it is reasonable to infer that all of Andersen’s telephone calls to Fladmark’s cellular telephone were recorded and the substance of those calls was monitored. (Id.; Gilmore Aff. Ex. 1).

b. Dell D. Holm
1. Jail Staff
On May 3, 2008, Dell D. Holm (“Holm”) was arrested and brought to the Jail. (Holm Decl. ¶2). Neither Jail staff nor Law Enforcement provided Holm with any written materials or documents informing him of the Jail’s policy regarding arranging a confidential call with an attorney. (Id. ¶3). Similarly, during the booking process, Holm was never told about the procedure to arrange a confidential call with an attorney. (Id. ¶4). None of the Jail staff or the Law Enforcement personnel told Holm about a List. (Id.).
2. Inmate Handbook
Holm was not given an Inmate Handbook during booking, nor did any Jail staff or Law Enforcement tell Holm about the Inmate Handbook, or what the Inmate Handbook said. (Holm Decl. ¶3-5). Holm learned about the Inmate Handbook from other inmates and requested a copy from Jail staff. (Id. ¶5-6). Jail staff told Holm that there weren’t any copies available at that time, and that he would be given one when the Jail printed more copies. (Id. ¶6). Holm was never given a copy of the Inmate Handbook. (Id. ¶7).
3. Postings By Inmate Telephones
Holm also observed signs posted by the inmate telephones stating that all telephone calls would be monitored -- except telephone calls made to an attorney. (Id. ¶8) (emphasis added).
4. Holm Believed His Telephone Calls to His Attorneys Were Private and Confidential
Based on the signs posted by the inmate telephones -- and because Jail staff never told him anything different -- Holm believed that any calls he made to an attorney would be confidential. (Holm Decl. ¶11).
After Holm arrived at the Jail, Darlene Rivera (“Rivera”) was appointed as his public defender. (Id. ¶9). Holm used the inmate telephones at the Jail to speak with Rivera about his criminal case. (Id. ¶10). During these calls, Rivera and Holm discussed private and confidential information relating to his criminal case and defense strategy. (Id.).
5. Jail Staff Tells Holm All Telephone Calls Are Recorded -- Even Calls to Attorneys
After being told by other inmates that Jail staff listened to telephone calls between inmates and attorney, Holm requested confidential calls to Rivera and any other attorneys from the Public Defenders’ office that were working on his case. (Holm Decl. ¶¶12-13). Jail staff informed Holm that all inmate calls were recorded -- even calls to inmates’ attorneys. (Id. ¶14).
6. Holm Overhears Jail Staff Talking About Information He Discussed With His Attorneys Over the Telephone
Holm overheard Jail staff talking about his criminal case. (Holm Decl. ¶16). The information that Holm overheard Jail staff discussing was information that he had shared over the telephone with Rivera relating to his criminal case. (Id.). Holm does not know if any of his telephone calls from the Jail to his attorneys were confidential. (Id. ¶17).
c. William K. Bulmer, II
1. Bulmer’s Representation of Andersen
Bulmer represented Andersen in his criminal case in Becker County. (Bulmer Decl. ¶2). During the representation, Bulmer worked for The Giancola Law Firm, PLLC (“Giancola Law Firm”) until January, 2008. (Id. ¶3). In January 2008, Bulmer left the Giancola Law Firm and opened his own firm -- the Law Offices of William K. Bulmer, II. (Id.). Bulmer continues to

represent Andersen. (Bulmer Dep. pp. 10-11).
In Bulmer’s legal practice, his primary method of communication with clients in custody is via telephone -- especially for clients such as Andersen who are not in close physical proximity to his office. (Bulmer Decl. ¶5).
2. Bulmer’s Compensation During His Representation of Andersen
Like many criminal defense attorneys, Bulmer’s compensation was highly incentivized. (Bulmer Decl. ¶4). His compensation consisted of a fairly small base salary and a fifteen percent (15%) commission on all business that he personally brought into the firm. (Id.). The 15% commission constituted a significant portion of his income. (Id.).
3. Bulmer’s Suspicions That His Attorney-Client Telephone Calls With Andersen are Being Listened To
In the summer of 2007, Bulmer and other attorneys at the Giancola Law Firm began to suspect that their calls with Andersen were being listened to by Jail staff and Law Enforcement personnel. (Bulmer Decl. ¶6). Due to these concerns, Bulmer informed Andersen that they could no longer discuss substantive information about Andersen’s case and defense strategy over the telephone. (Id. ¶7).
4. Bulmer Required to Drive to Becker County to Meet With Andersen to Discuss Confidential Case Information
Because Andersen’s attorneys felt their calls with Andersen weren’t private, any time they needed to discuss confidential case related information with Andersen, they had to travel to Becker County to visit him in person. (Bulmer Decl. ¶7). This resulted in numerous trips to Becker County that would have been unnecessary if Andersen’s attorneys were certain that their calls to Andersen were confidential. (Bulmer Decl. ¶¶7-8; Bulmer Dep. pp.56-60).
Bulmer was the primary attorney in charge of communicating and working with Andersen to gather pertinent facts and evidence, and to develop the Andersen’s defense strategy. (Bulmer Decl. ¶8). Accordingly, the responsibility to make the additional trips to Becker County fell to Bulmer. (Id.).
5. The Jail’s Physical Location From The Giancola Law Office and Bulmer’s Home
The Jail is located in Detroit Lakes, Minnesota; approximately a four hour drive from the Giancola Law Office in Anoka, Minnesota, and approximately a four and one-half hour drive Bulmer’s home in St. Louis Park, Minnesota. (Bulmer Decl. ¶9; Bulmer Dep. pp.56-60).
6. Hardship’s Caused by Not Being Able to Discuss Confidential Information with Andersen Over the Telephone
The additional trips that Bulmer was required to make to Becker County to visit Andersen in person significantly increased the time and costs involved in representing Andersen. (Bulmer Decl. ¶10).
Importantly, the additional trips severely limited the amount of time that Bulmer was able to devote to work on other matters. (Id. ¶11). The additional trips also severely limited Bulmer’s opportunities and ability to personally generate new business for the firm -- which had a negative impact on Bulmer’s income and harmed his earning ability. (Id.).
In a number of instances, Bulmer traveled to Becker County on Friday evenings and on weekends so that he would not be out of the office during the work week, and so he could meet with Andersen for extended periods of time. (Id. ¶12). This precluded Bulmer from being able to attend a number of personal engagements and activities. (Id.).
VI. Defendants Destroyed Crucial Evidence Relating to the Recording and Monitoring of Plaintiffs’ Attorney-Client Telephone Calls
By letter dated October 31, 2008, counsel for Plaintiffs notified Defendants’ counsel not to destroy certain documents because plaintiffs would seek those documents in discovery. (Abrahamson Decl. Ex. A). Counsel’s letter specifically notified

Defendants’ counsel to preserve the recordings between Plaintiffs and their attorneys as relevant evidence:
Any existing recordings of conversations between Mr. Andersen or Mr. Holm and their attorneys or their attorney’s agents must be preserved. Any other recordings of conversations between inmates/detainees and their attorneys or attorney’s agents must also be preserved... Any routine deletion or destruction of the above information or any other relevant information must cease immediately...
(Abrahamson Dec, Ex. A).
At the initiation of this litigation and when Defendants’ counsel received the document preservation letter from Plaintiff’s counsel, the telephone system at the jail could preserved all inmate telephone recordings for approximately 244 days. (Hodgson Dep. pp.93-98). Thus, the system contained recordings dating back to approximately February 15, 2008.
Both Andersen and Holm were in custody at the jail during this time period. (Def. Br. pp.4; 7). Any telephone calls from Plaintiffs to any of their attorneys’ numbers not on the List would have been recorded. (Hodgson Dep. pp.78-80).
The phone recording system also provides a simple process for downloading materials onto a CD -- a process used routinely to provide the BCA or other investigators with copies of the recorded telephone conversations. (Id. pp.96). Thus, it would have been easy for defendants to preserve these documents.
The defendants made no effort, however, to preserve the documents identified in Mr. Bryden’s letter. (Hodgson Dep. pp.9799; Baumann Dep. pp. 123-27). Instead, Defendants continued their routine destruction of the recordings of inmate telephone calls. (Hodgson Dep. pp. 91-99). Nor did defendants instruct others, such as Mr. Baumann who was specifically identified in Mr. Bryden’s letter, to preserve the recordings. (Id.). Defendants’ 30(b)(6) witness admitted at his deposition that no steps were taken to preserve the recordings. (Hodgson Dep. pp.97-99).
SUMMARY JUDGMENT STANDARD
Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a)(2); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). When considering a motion for summary judgment, the role of a court is not to weigh the evidence but instead to determine whether -- as a matter of law -- a genuine factual conflict exists. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987).
Moreover, “[t]he court must view the evidence, and the inferences that may be reasonably be drawn from it, in the light most favorable to the nonmoving party.” Koscielski v. City of Minneapolis, 393 F.Supp.2d 811, 814 (D. Minn. 2005) (citing Graves v. Arkansas Dep’t of Fin. & Admin., 229 F.3d 721, 723 (8th Cir. 2000)).
ARGUMENT
I. Numerous Factual Disputes in the Record Necessarily Preclude Summary Judgment
a. Genuine Issues of Material Fact Exist in the Record
1. The Jail Does Not Inform Inmates of the Jail’s Policies and Procedures Regarding Requesting an Attorney-Client Telephone Call During the Booking Procedure
First, Defendants assert that the Jail has an unwritten policy in place that requires Jail staff to verbally inform inmates during the booking process about the Jail’s policy for arranging a private attorney-client telephone call -- including that Jail policy requires inmates to request private calls to their attorneys. (Gordon Aff. ¶3;3 Hodgson Dep. pp.105-084).
Jail Administrator Hodgson, however, testified that inmates are only informed of the Jail’s policy regarding the procedure for an inmate to request a confidential call with an attorney when an inmate asks Jail personnel about making a call to an attorney. (Hodgson Dep. pp.135, 152-53).

Jennifer Soyring, a Becker County Correctional Officer for five years, stated that inmates help one another more with determining how to make private calls to attorneys than Jail staff does. (Soyring Dep. p. 19). Paula Peterson, a Becker County Correctional Officer for nine years, learned how to assist inmates with requesting a private call to an attorney by observing others at the Jail -- rather than through formal training. (Peterson Dep. pp.25-26). Accordingly, the facts undercut the Defendants’ assertion of an unwritten policy requiring Jail staff to inform inmates about the List.
2. The Jail’s Policy Regarding Inmate Telephone Calls to Investigators
McArthur testified that, pursuant to Jail policy, inmates’ telephone calls to investigators are not considered private, and thus, are recorded and monitored. (Omnibus Hr’g. pp.133, 137). McArthur also testified that when Fladmark’s number was placed on the List, it was an anomaly and was only done because the Becker County Attorneys Office instructed the Jail to do so. (Id.).
Given this testimony and the results of the “test” conducted by Andersen’s attorneys, it is reasonable to infer that -- per the Jail’s policy -- Jail staff and Law Enforcement personnel recorded and listened to inmates’ telephone calls with their investigators -- including the substance of the calls.
3. Jail Staff and Law Enforcement Personnel Listened to Andersen’s Attorney-Client Telephone Calls
Defendants repeatedly deny that Andersen’s attorney-client telephone calls were listened to. (Omnibus Hr’g. p. 138; Def Br. pp. 13, 17). This is blatantly false as Special Agent Baumann repeatedly admitted that he had to listen to at least a portion of Andersen’s calls to his attorneys and Fladmark -- at times more than a minute -- to determine that Andersen was speaking to his attorneys or the investigator. (Baumann Dep. pp.61-74).
Baumann also testified that Defendant Joe McArthur and investigator John Seiling monitored or screened the recordings of Andersen’s telephone calls. (Baumann Dep. p.52). And, according to Hodgson, anyone who monitored or screened the recordings of an inmate’s telephone calls would necessarily have to “listen to it long enough to determine what the conversation was about” to determine if the inmate was talking to his attorney. (Hodgson Dep. p. 105). Moreover, the “test” conducted by Andersen’s attorneys demonstrates that Jail staff listened to the substance of Andersen’s privileged calls.
4. Defendants’ Assertion that the Numbers of Andersen’s Attorneys Were Inadvertently Omitted from the List is False
Defendants allege that the telephone numbers of Andersen’s attorneys were inadvertently omitted from the List because of a one-time change in Reliance Telephone’s procedures -- in other words, a “mistake.” (Def Br. p.4; McArthur Aff. Ex. 1).
The factual record, however, shows that this is not the case. Jail administrator Hodgson, testified that there have been no changes to how attorney numbers are added to the List since at least October of 2004. (Hodgson Dep. pp.58-63, 129). Hodgson even confirmed this with prior Becker County Chief Jailer Rollie Oelfke. (Hodgson Dep. p. 129). Moreover, Andersen gave Jail staff the business cards and telephone numbers of his attorneys within a few weeks of being booked into the Jail. Finally, in regard to the cellular numbers of Andersen’s attorneys, McArthur testified that he ordered the removal of the cellular numbers of Andersen’s attorneys from the List -- per Jail policy -- and never informed Andersen’s attorneys that the numbers had been removed. (Omnibus Hr’g. pp. 130-36). This can hardly be called a one-time “mistake.”
From these facts, it can reasonably be inferred that Defendants’ policy was simply to not place the Andersen’s attorney numbers on the List, or in the very least, to be completely indifferent to whether the attorney numbers were placed on the List. Accordingly, it can also be inferred that Jail staff and Law Enforcement recorded and listened to the calls between Andersen and his attorneys during the time their numbers were not on the List -- including the substance of those telephone calls.
5. Defendants’ Assertion that No Inmate Conversations with Their Attorneys or Their Attorneys’ Agents Have Been Recorded at the Jail Since March 7, 2008 Order is also False
Defendants assert that they did not record any of Andersen’s attorney-client privileged telephone calls after Judge Irvine’s

March 7, 2008 Order requiring the cellular numbers of Andersen’s attorneys be placed on the List. (Def. Br. p.5). Yet, Fladmark’s cellular number, (218) 731-4027, was never placed on the list, thus, any calls Andersen placed to Fladmark’s cellular telephone after Judge Irvine’s March 7, 2008 Order were recorded. (Gilmore Aff Ex. 1; Abrahamson Decl. Ex. B, C and D).
II. Defendants’ Policies Regarding Monitoring and Recording Attorney-Client Telephone Calls Violated Plaintiffs’ Constitutional Rights
a. First Amendment
Imprisonment does not automatically deprive a prisoner of his or her First Amendment right to the freedom of speech. Beard v. Banks, 548 U.S. 521 (2006); Turner v. Safley, 482 U.S. 78 (1987); Bell v. Wolfish, 441 U.S. 520, 545 (1979); Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008). Because this matter is before the Court on Defendants’ motion for summary judgment, “[i]nferences about disputed facts must be drawn in [Plaintiffs’] favor . . . .” Beard, 548 U.S. at 524. Instead, prison regulations restricting constitutional guarantees are valid only if the regulations are “reasonably related to legitimate penological interests.” Turner v. Safely, 482 U.S. at 89; Roe v. Crawford, 514 F.3d 789, 793 (8th Cir. 2008). Here, the Jail’s policy of recording and monitoring inmates’ attorney-client telephone calls has no legitimate link to penological interests.
First, Defendants assert that no information from the recorded calls was used against Plaintiffs in their criminal cases, so Plaintiffs’ First Amendment rights have not been harmed. Whether Defendants utilized any information gained from Plaintiffs’ attorney-client communications against them is irrelevant -- the very fact that the Jail records these privileged communications restricted Plaintiffs’ First Amendment rights because they could not openly and freely communicate with their attorney.
Second, Defendants allege that recording inmates’ telephone calls is reasonably related to the penological interests of safety and security at the Jail. Again, Defendants’ argument misses the entire point of Plaintiffs’ claim -- Plaintiffs’ do not object to the Jail recording inmate telephone calls to friends and family. Instead, Plaintiffs’ complaint is limited to the recording of attorney-client privileged telephone calls. Defendants have failed to even provide a modicum of evidence to show any safety or security concerns related to Plaintiffs’ telephone calls to their attorneys. Accordingly, the Jail has no legitimate penological interest in recording these privilege communications.
b. Fourth Amendment
Defendants argue that no Fourth Amendment violation exists, relying entirely on United States v. Novak, 531 F.3d 99 (1st Cir. 2008) (O’Connor). Not only is Novak clearly distinguishable from the case at bar, but the First Circuit’s opinion actually supports Plaintiffs’ Fourth Amendment claim.
First, in Novak, the Court held that inmate Holyoke knew that his calls to his attorney Novak were being recorded and monitored because he was properly informed by prison staff, and because an automated message at the beginning of each call informed him that the call was being recorded.5 Novak, 531 F.3d at 102. Here, Plaintiffs were never properly informed that their attorney-client calls were being monitored or recorded -- even after Jail staff knew their private calls were being recorded.
Second, the Novak Court based its holding on the fact that Holyoke -- by continuing to speak to his attorney after he was aware the calls were being recorded and monitored -- impliedly consented to the recording. Id. at 102-03.
Most importantly, the Court specifically found that “there is no evidence . . . that [the inmate] believed his consent to monitoring of phone calls was limited only to non-attorney-client phone calls.” Id.
Here, the signs posted by the inmate telephones led Plaintiffs to believe -- and in fact they did believe -- that their telephone calls to their attorneys were confidential. Moreover, Andersen gave Jail staff the business cards of his attorneys and investigator Fladmark, thus, Jail staff knew who his attorneys were and had their telephone numbers. Under these circumstances, Plaintiffs’ belief that their calls to their attorneys were private was certainly reasonable.
Additionally, Andersen’s attorneys also believed that their calls with Andersen were private, and Jail staff and Law

Enforcement did not tell them any different -- even though they knew Andersen’s attorney-client calls were being recorded.
Not only was Plaintiffs’ expectation reasonable, it is well-recognized by the courts. See Lanza v. New York, 370 U.S. 139, 143-44 (1962) (“Even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection.”); United States v. Hatcher, 323 F.3d 666, 675 (8th Cir. 2003). Accordingly, rather than supporting Defendants’ motion for summary judgment, Novak supports Plaintiffs’ Fourth Amendment claims.
Although the Sixth Amendment was not addressed in Novak because it was not before the Court, Justice O’Connor noted that “[n]o doubt, the monitoring of [the inmate’s] calls to his attorney presents a significant Sixth Amendment issue.” Novak, 531 F.3d at 102. Justice O’Connor reiterated this as she closed the opinion:
[w]e recognize that there are Constitutional dimensions to the monitoring that occurred we do not discuss in this opinion. The monitoring of these calls, made between an attorney and a client who is seeking legal advice, is troubling. We thus reiterate that in holding as we do, we do not express approval of the practice of monitoring calls between attorneys and clients in prisons and jails. We have not found a Fourth Amendment problem in this particular instance. Because Novak chose not to raise the question, we do not decide whether, or to what extent, calls between attorneys and clients made from prison can be monitored consistently with the requirements of the Sixth Amendment.
Id. at 103-04 (emphasis added).
c. Fifth and Sixth Amendment
Again, Defendants claim there are no constitutional violations because -- allegedly -- Defendants’ never listened to any of the recordings of attorney-client telephone calls. This argument is equally as erroneous here as it was in the First Amendment context.
In regard to the Fifth Amendment, Defendants conveniently destroyed the recordings of the telephone calls so it is virtually impossible for Plaintiffs to prove that Defendants listened to any attorney-client calls. This alone creates a fact issue precluding summary judgment for Defendants.
In regard to the Sixth Amendment, courts have consistently held that the practice of law enforcement surreptitiously recording attorney-client privileged telephone calls offends even the most basic constitutional principles.
High courts across the country have uniformly and dramatically condemned such practices. See State v. Sugar, 417 A.2d 474, 479-480 (N.J. 1980) (“We are outraged .... Such an invasion is unconscionable.”); Matter of Kozak, 256 N.W.2d 717, 725 (S.D. 1977) (“[W]e cannot express strongly enough our condemnation of the practice of the sheriff and his deputy.”); Fajeriak v. State, 520 P.2d 795, 799 (Alaska 1974) (“The spectacle of the state spying on attorney-client communications of persons placed in its custody offends even the least refined notions of fundamental fairness and due process of law, and if it took place we find it reprehensible.”).
Federal Courts have been equally outraged about law enforcement’s invasion into the attorney-client privilege. Coplon v. United States, 191 F.2d 749, 758 (D.C. Cir. 1951) (“The sanctity of the constitutional right of an accused privately to consult with counsel is generally recognized and zealously enforced by state as well as federal courts.”).
In a directly analogous body of caselaw, the Eighth Circuit recognized the sanctity of the attorney-client privilege with respect to inmates’ legal mail. In Cody v. Weber, prison officials opened legal mail outside the presence of the inmate. 256 F.3d 764 (8th Cir. 2001). The Court reversed a summary judgment ruling in favor of prison officials finding that the inmate had asserted a viable 42 U.S.C. § 1983 claim. Id. at 768 (citing Powells v. Minnehaha County Sheriff Dep’t, 198 F.3d 711, 712 (8th Cir. 1999) (holding allegation that prison officials opened legal mail outside of inmate’s presence is sufficient to state a constitutional claim)).
In reaching this decision, the Court reaffirmed that an alleged security interest cannot justify such an invasion of the attorneyclient privilege. Cody, 256 F.3d at 768 (citing Thongvanh v. Thalacker, 17 F.3d 256, 258-59 (8th Cir. 1994)).

Here, there is no question that Defendants recorded Plaintiffs’ attorney-client telephone calls and listened to those calls. The only inference that can be drawn from the “test” performed by Andresen’s attorneys is that Jail staff listened to the substance of Andersen’s privileged calls. Baumann testified that he had to listen to the calls -- including some substance -- to determine whether it was an attorney-client call. Moreover, the Jail’s policy was that inmate calls to investigators were not even considered privileged. Accordingly, it is reasonable to infer from the Jail’s policy that inmates’ calls to investigators were also listened to by Jail staff.
As Justice O’Connor noted in the Novak opinion, it is clear that “the monitoring of [the inmate’s] calls to his attorney presents a significant Sixth Amendment issue.” Novak, 531 F.3d at 102-03.
c. Due Process
Defendants assert that their conduct does not “shock the conscience or otherwise offend our judicial notions of fairness, or ... offen[d] human dignity.” (Def. Br. p.20). As set forth above, however, courts across the nation disagree and express “outrage” at such practices and “condemn” such unconstitutional policies.
Defendants likely conclude that their conduct is not shocking based on their own innocuous version of their conduct. When one views Defendants’ conduct through the extensive factual record presented herein, however, it is hard not conclude that Defendants’ conduct is shocking and offensive to judicial notions of fairness.
III. Defendants raise a series of legal defenses that are wholly inapplicable or without merit.
a. Collateral Estoppel Does Not Apply to the Case at Bar
In asserting collateral estoppel,6 Defendants ignore well-established Supreme Court precedent holding that violation of a criminal defendant’s Sixth Amendment rights does not necessarily compel the dismissal of an indictment unless the criminal defendant can show prejudice flowing from the violation. United States v. Morrison, 449 U.S. 361, 367 (1981). The Supreme Court held that if dismissal of the indictment is not appropriate, then the Sixth Amendment right may be vindicated through other judicial proceedings. Id. at 367.
In other words, the fact that the trial court did not dismiss Andersen’s indictment does not mean that he does not have an actionable claim. Instead, Andersen is vindicating his rights in the exact manner set forth by the Supreme Court in Morrison.
Accordingly, collateral estoppel does not bar Andersen’s claims because the issue in this case is not the same issue resolved by the trial court in Andersen’s criminal trial. During Andersen’s criminal trial, he brought a motion to dismiss the indictment on account of the monitoring of attorney-client privileged communications. In order to understand what issue was resolved by the trial court, it is imperative to look to the substantive law governing Andersen’s motion to dismiss the indictment:
To establish a Sixth Amendment violation, a criminal defendant must how that the government knowingly intruded on the attorney-client relationship. However, the identification of a Sixth Amendment violation alone does not require dismissal of an indictment. Even where a violation is deliberate, dismissal is an appropriate remedy only where the defendant shows that the violation resulted in prejudice or a substantial threat of prejudice.
United States v. Elzahabi, No. 04-CR-282, 2007 U.S. Dist. LEXIS 33325, *2-3 (D. Minn. May 7, 2007) (emphasis added) (citing United States v. Singer, 785 F.2d 228, 234 (8th Cir. 1986); Morrison, 449 U.S. at 365-66.
The trial court’s brief analysis of Andersen’s motion to dismiss focused on whether Andersen was prejudiced by the recording. In the concluding paragraph of the Order, the trial court stated “[b]ecause there is no evidence of prejudice to the rights of the Defendant, and because the practice of recording for screening purposes has been stopped, there are no real grounds for dismissing the indictment.” (Judge Irvine Order and Memorandum, p. 11). The rule of law regarding dismissal of the indictment clearly contemplates a step-by-step analysis. See United States v. Singer, 785 F.2d 228, 234 (8th Cir. 1986). In this step-by-step analysis, the trial court only engages in the prejudice analysis after finding a Sixth Amendment violation. Singer, 785 F.2d at 234. Since the trial court reached the issue of prejudice, it must have necessarily concluded that the

government violated Andersen’s Sixth Amendment rights by recording his attorney-client telephone calls. Defendants’ argument that Andersen’s claims are collaterally estopped ignores the law applicable to Andersen’s motion and the trial court’s analysis under that law.
The trial court’s finding regarding prejudice has no impact on the case at bar. In Morrison, the Supreme Court held that prejudice is necessary to warrant dismissal of the indictment. 449 U.S. at 365-66. In reaching that conclusion, however, the Supreme Court warned “we do not condone the egregious behavior of the Government agents. Nor do we suggest that in cases such as this, a Sixth Amendment violation may not be remedied in other proceedings.” Id. at 367.
A civil lawsuit must be the “other proceeding” contemplated by the Supreme Court in Morrison. Accordingly, Andersen is not estopped from bringing his Sixth Amendment claims here, but instead, is following the Supreme Court’s guidance to ensure his rights are upheld.
b. Heck v. Humphrey is Inapplicable Because Plaintiffs’ Claims Do Not Challenge Their Criminal Convictions
Defendants’ mischaracterize Plaintiffs’ claims and allege that Andersen and Holm are challenging the validity of their criminal convictions through this action. Even a cursory review of Plaintiffs’ Complaint and the record, however, show this to be patently false. Nothing in the Complaint sets forth such a claim.
Instead, Plaintiffs’ Complaint asserts that Defendants policy of recording and monitoring their attorney-client telephone calls violated their constitutional and statutory rights. Such claims are not barred under Heck v. Humphrey. To the contrary, Heck v. Humphrey explicitly provides that -- in circumstances such as those here -- a convicted criminal defendant may bring a civil action for violations of his rights:
...if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.
Humphrey, 512 U.S. at 487. This holding is squarely on point here, where the legitimacy of Plaintiffs criminal convictions would not be undermined by their success in this action. Cf. Morrison, 449 U.S. at 367.
As discussed above, Andersen (but not Holm) sought dismissal of the indictment based on the recording of his attorney-client privileged conversations. The Court denied Andersen’s motion, however, “[b]ecause there is no evidence of any prejudice to the rights of the Defendant, and because the practice of recording for screening purposes has been stopped, there are no real grounds for dismissing the indictment.” (Judge Irvine Order and Memorandum, p. 11). Accordingly, Andersen’s failure to demonstrate prejudice was the basis for denying his motion to dismiss the indictment.
In regard to Holm, Defendants cite a series of inapposite cases where the Plaintiff’s § 1983 action alleged constitutional violations that resulted in the collection of evidence which was used to support an Alford plea.7
These cases are not remotely on point with the claims Holm has asserted in this action. Holm’s claim here is simply that the recording and monitoring of his privileged calls violated certain constitutional and statutory rights. He does not have to show that law enforcement used information from his privileged communications to support the Alford plea to prove his claims under 42 USC § 1983.
Accordingly, Plaintiffs can prove their claims without demonstrating the invalidity of their convictions. This is exactly what Heck case provides for.
c. Plaintiffs Have Established a Viable Monell Claim.
Under Monell, municipal liability under § 1983: “(1) where a particular municipal policy or custom itself violates federal law, or directs an employee to do so; and (2) where a facially lawful municipal policy or custom was adopted with ‘deliberate indifference’ to its known or obvious consequences.” Moyle v. Anderson, No. 08-3730, 2009 U.S. App. LEXIS 15120, at *7 (8th Cir. July 9, 2009) (citing Seymour v. City of Des Moines, 519 F.3d 790, 800 (8th Cir. 2008)).
First, Defendants assert that there are no unconstitutional policies at the Jail. This is demonstrably false. First, Defendants’

policy of recording and monitoring inmate telephone calls to attorneys’ numbers that are not on the List is unconstitutional.
Second, Defendants’ policy of recording inmates’ attorney-client telephone calls, and not informing either the inmate or the attorneys that their private calls are being recorded is unconstitutional.
Third, Defendants’ policy of not informing inmates during the booking procedure of how to arrange a confidential attorneyclient call is unconstitutional.
Fourth, Defendants’ policy or requiring inmates to request a private attorney-client call -- when the inmates have not been informed that they must make such a request -- is unconstitutional.
Fifth, Defendants’ policy of not informing inmates that calls to their attorneys’ cellular telephones are recorded and monitored is unconstitutional.
Sixth, Defendants’ policy of not informing inmates that their calls to investigators are recorded and monitored is unconstitutional.
Seventh, Defendants’ policy of allowing all Jail staff unlimited access to recordings of inmate calls -- including attorneyclient calls -- is unconstitutional.
Eighth, Defendants’ policy of providing recordings of inmates’ telephone calls to their attorneys to Law Enforcement personnel involved with the prosecution of the inmate is unconstitutional.
In the event that the Court were to find any of these policies facially lawful, it is clear that Defendants adopted the policies with deliberate indifference to the obvious consequences of the policies. For example, Defendants assert that the policy to record inmates’ telephone calls is a facially lawful policy. However, when one looks at the way Defendants have implemented this policy -- allowing inmates’ attorney-client calls to be recorded and monitored -- the record evidence paints a clear picture of Defendants’ deliberate indifference to inmates’ constitutional rights.
d. The Defense of Qualified Immunity is Not Applicable to the Case at Bar
Defendants’ qualified immunity defense is wholly inapplicable. Plaintiffs have not sued Defendants Gordon and McArthur in their individual capacity, and accordingly, they are not entitled to qualified immunity. “Qualified immunity only applies to claims against public officials in their individual capacities.” Serna v. Goodno, 567 F.3d 944, 952 (8th Cir. 2009) (citing Kentucky v. Graham, 473 U.S. 159, 166-67 (1985)).
Plaintiffs have never brought individual claims against either Gordon or McArthur; instead Plaintiffs have always maintained claims against them in their official capacity. Even Defendants’ caption for their Motion for Summary Judgment lists Gordon and McArthur in their official capacities. Simply stated, Defendants’ qualified immunity argument is not applicable to this case.
e. Defendants are Not Entitled to Summary Judgment Pursuant to Official Immunity
Public officials are not entitled to immunity when they willfully violate a known right. Mattson v. Becker County, No. 071788, 2008 U.S. Dist. LEXIS 61510, at *30 (D. Minn. August 12, 2008) (citing Samuelson v. City of New Ulm, 455 F.3d 871, 878 (8th Cir. 2006)). A genuine issue of material fact exists as to whether Defendants have violated a known right in this case. Specifically, Plaintiffs’ rights emanating from the attorney-client privilege.
Defendants are acutely aware -- and have admitted as much -- that Plaintiffs’ have a right to private calls with their attorneys. In fact, Defendants revised the Inmate Handbook and the signs posted by the inmate telephones at the Jail specifically to clarify this right for both inmates and Jail staff.
However, despite full knowledge of Plaintiffs’ right to private calls with their attorneys and investigators -- and full knowledge that Plaintiffs’ attorney-client calls were being recorded -- Defendants continued to record and listen to Plaintiffs’ calls with their attorneys and investigators. Specifically, Baumann testified that he had to listen to both attorney and investigator calls before he was able to determine that they were attorney-client calls. Yet, when he raised the issue with

McArthur, Seiling and the Becker County Attorney’s Office, nothing was done.
Additionally, the only reasonable inference that can be drawn from the “test” performed by Andersen’s attorneys is that Jail staff listened to the substance of Andersen’s attorney-client calls.
Clearly a genuine issue of material facts exists as to whether the individual Defendants violated a known right. Moreover, since the individual Defendants are not entitled to official immunity, the County Defendant is not protected by vicarious official immunity. Mattson, 2008 U.S. Dist. LEXIS 61510, at *30 (citing Mumm v. Morrison, 708 N.W.2d 475, 493 (Minn. 2006)). Defendants’ motion must be denied.
f. Bulmer Has Standing
Defendants’ assertion that Bulmer lacks standing is simply wrong. Contrary to Defendants’ assertions, an attorney’s advice does, of course, have “independent economic value, actual or potential,” Minn. Stat. § 325C.01, subd. 5(i), as does the confidential information provided by the client to help shape that advice. The very livelihood of an attorney depends on his or her ability to sell those very commodities -- his or her time and advice. If these two attorney-generated “products” have no independent economic value, then attorneys will be forced to close up their practices and take up new professions to provide for themselves and their families.
Similarly, Bulmer’s work product was diminished because Jail staff and Law Enforcement personnel had access to his private, confidential information -- regardless of how much of the telephone calls Defendants listened to.
Finally, Bulmer lost valuable work and personal time and opportunities because he was required to travel to Becker County to meet with Andersen a number of times that would have been unnecessary if he had been able to discuss confidential matters with Andersen over the telephone.
IV. Plaintiffs have stated viable statutory and common law claims
a. Minnesota Statutory Claim
Pursuant to Minnesota law, Defendants are required to provide all “person[s] restrained of liberty” with “private telephone access” to their attorneys. Minn. Stat. § 481.10, subd. 2 (emphasis added). Defendants’ assertion that Plaintiffs were provided “private” telephone access is laughable. First, contrary to Defendants’ assertions, Special Agent Baumann testified that he did, in fact, listen to at least portions of recordings of telephone calls between Andersen and his attorneys and investigator Fladmark. The record also contains evidence that McArthur and John Seiling listened to Andersen’s attorney-client telephone calls as well.
Defendants next assert that they provided Plaintiffs with “reasonable” access to private telephone calls with attorneys. Again, this too is false -- no telephone access that is recorded and subject to monitoring can “reasonably” be private. Moreover, the law requires “private telephone access” and “[Reasonable telephone access.” Minn. Stat. § 481.10, subd. 2.
Defendants assert that Andersen had access to his attorneys via “at least three landline numbers.” (Def. Br. pp.30-31). This is false as well. The landline number of the Giancola Law Firm was not placed on the List until December 6, 2007, and the landline number of Fladmark was not placed on the list until December 13, 2007 -- both approximately six months after Andersen was admitted to the Jail.
The third number Defendants refer to must be Bulmer’s cellular number which was placed on the List on December 4, 2007. However, Defendants neglect to inform the Court that McArthur ordered the cellular numbers of Andersen’s attorneys -including Bulmer’s -- removed from the list on December 5, 2007, and the cellular numbers were not placed back on the List until after Judge Irvine’s March 7, 2008 Order.
Defendants’ policy of recording and monitoring all inmate telephone calls to numbers not on the List ensured that Andersen’s access to private calls to his attorneys and Fladmark was neither “private” nor “reasonable.” Moreover, all Jail staff and Law Enforcement had unlimited access to listen to the recordings of inmate telephone calls.

The cases cited by Defendants miss the point. State v. Held, for example, addressed the right to counsel of a driver suspected of DWI. 246 N.W.2d 863, 863-64 (Minn. 1976). After being taken to police headquarters, the driver was allowed to call his attorney before being administered a breath or blood test, but was not permitted to make the call from a private room. Id. at 864.
The court found that the police’s actions did not deprive the driver of his right to private consultation with his attorney because it was unreasonable to expect police departments to have suitable private rooms or booths available at all times. Id. Here, it is not at all unreasonable to expect the Jail to provide inmates with private attorney-client telephone calls. In fact, Minnesota law demands it.
b. State and Federal Wiretapping Statute
The federal and Minnesota anti-wiretapping statutes are substantially similar, and accordingly, the same analysis applies to both claims.
Citing Lanza v. New York, Defendants assert that official surveillance of telephone calls is common and accepted in prisons. 370 U.S. 139, 143 (1962). Defendants then take a tremendous leap in their analysis and assert that intercepting attorney-client calls at the Jail, therefore, falls within the “ordinary course of. . . duties” of an “investigative or law enforcement officer” and is exempted from the prohibition on wiretapping under both federal and Minnesota law.
As has been the recurring pattern, Defendants’ ignore facts and caselaw that is not favorable to their position. First, Defendants fail to mention that the conversation that was recorded in Lanza was a conversation between an inmate and his brother in a prison meeting room -- not between an inmate and his attorney, and not even a telephone call.
Second, Defendants apparently didn’t bother to finish reading the very paragraph of the Lanza opinion that they cite to. If they had, they would have realized that the Lanza Court went on to state that “even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection . . . .” 370 U.S. at 143-44 (emphasis added).
Contrary to Defendants assertion, it is not the “ordinary course of. . . duties” of an “investigative or law enforcement officer” to record and monitor attorney-client telephone calls.
c. Intrusion Upon Seclusion
Under Minnesota law, the tort of intrusion upon seclusion has three elements: (1) there must be an intrusion; (2) that intrusion must be “highly offensive”; and (3) the intrusion must be “into some matter in which a person has a legitimate expectation of privacy.” Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 744 (Minn. Ct. App. 2001). The offensiveness of the intrusion and the legitimacy of the expectation of privacy are measured by the standards of a “reasonable person.” Id. at 745.
“[Q]uestions about the reasonable person standard are ordinarily questions of fact, but they become questions of law if reasonable persons can draw only one conclusion from the evidence.” Id. (citation omitted).
Here, it is the Plaintiffs that should be moving for summary judgment, not Defendants. The record is rife with evidence showing that Defendants’ recording and monitoring of Plaintiffs’ attorney-client calls was not only an intrusion, but was a highly offensive intrusion. The record also clearly shows that Plaintiffs had a legitimate expectation of privacy in their telephone calls with their attorneys.
g. Defendants’ Summary Judgment Motion Must be Denied in its Entirety Because Defendants Destroyed Evidence Crucial to the Case.
As set forth above, notwithstanding a letter from Plaintiffs’ counsel specifically identifying documents that would be sought in discovery, Defendants destroyed these documents. This violation of basic discovery principles can only be remedied by taking an adverse inference with respect to this evidence -- i.e., that if the evidence were not destroyed, it would support Plaintiffs’ claims.

Addressing this very issue, the Eight Circuit held that an adverse inference instruction was appropriate “even absent an explicit bad faith finding” where defendant had destroyed relevant documents pursuant to a routine policy because the destruction took place after the commencement of litigation. Stevenson v. Union Pac. R.R., 354 F.3d 739, 749-50 (8th Cir. 2004). The Court further held that the defendant’s claim of innocence was not credible because the defendant had “specific knowledge of and participation in” the litigation, and because opposing counsel had filed a request for the documents prior to their destruction. Id. Accordingly, Defendants “cannot rely on [their] routine document retention policy as a shield.” Id. This adverse inference necessarily precludes summary judgment in favor of Defendants.

CONCLUSION

Based on the foregoing, Plaintiffs respectfully request that the Court deny Defendants’ Motion for Summary Judgment.

DATED: July 27, 2009

Footnotes

1

To prevent an overload of paper on the Court, citations other than those to Plaintiffs’ declarations and the declarations of Plaintiffs’

counsel, are to the Exhibits attached to the Affidavit of Susan M. Tindal, Docket No. 45.

2

Fladmark’s cellular number was never placed on the List. (Gilmore Aff Ex. 1).

3

Previously filed by Defendants as Docket No. 25.

4

Defendants state that “[t]here may be some circumstances where the process for a private call is not explained at booking and is

explained when the inmate wants to make a call.” (Def. Br. p.3; Hodgson Dep. pp.53-54, 135). Defendants fail to ever explain

what “circumstances” would prevent Jail staff from following the Jail’s unwritten policy of verbally informing inmates of the

procedure for requesting a private attorney-client telephone call -- possibly the most important thing an inmate needs to know upon

being booked into the Jail.

5

The Court also noted that Novak also heard this automated warning every time he spoke with Holyoke, and thus, he also knew the

calls were being recorded. Novak, 531 F.3d at 102, FN 1.

6

Defendants only assert collateral estoppel with respect to Plaintiff Andersen.

7

“With an Alford plea, the defendant pleads guilty and consents to the imposition of a sentence while still proclaiming his innocence

of the charged offense. The court is obliged to find ‘strong evidence of actual guilt’ before accepting such a plea.” Wilson v.

Lawrence County, 154 F.3d 757, 758 n. 1 (8th Cir. 1998) (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).

 
 CASE 0:08-cv-05687-ADM-RLE Document 82 Filed 05/04/10 Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

------------------------------------------------------------

)

KENNETH E. ANDERSEN and

) CIVIL ACTION

DELL D. HOLM, on behalf of

) NO. 08-5687 (ADM/RLE)

themselves and all others

)

similarly situated,

)

)

and

)

)

WILLIAM K. BULMER, II, on

)

behalf of himself and all

)

others similarly situated,

)

)

Plaintiffs, )

)

vs.

)

)

THE COUNTY OF BECKER,

)

MINNESOTA; TIM GORDON, in his )

capacity as Sheriff of Becker )

County; and JOSEPH H. McARTHUR,)

in his capacity as Captain in )

the Becker County Sheriff's )

Department,

) Courtroom 3

) Monday, January 11, 2010

Defendants. ) St. Paul, Minnesota

)

------------------------------------------------------------

AUDIO DISC TRANSCRIPTION OF: SETTLEMENT

BEFORE THE HONORABLE RAYMOND L. ERICKSON CHIEF UNITED STATES MAGISTRATE JUDGE

AUDIO DISC TRANSCRIBED BY:
TIMOTHY J. WILLETTE, RDR, CRR, CBC, CCP Official Court Reporter - United States District Court 1005 United States Courthouse - 300 South Fourth Street
Minneapolis, Minnesota 55415 612.664.5108

CASE 0:08-cv-05687-ADM-RLE Document 82 Filed 05/04/10 Page 2 of 8 2

A P P E A R A N C E S:

For the Plaintiffs:

SPRENGER & LANG, PLLC By: BRYCE M. MILLER, ESQUIRE 1400 Eye Street, N.W. - Suite 500 Washington, D.C. 20005

For the Defendants:

IVERSON REUVERS, LLC By: JON K. IVERSON, ESQUIRE
SUSAN M. TINDAL, ESQUIRE 9321 Ensign Avenue South Bloomington, Minnesota 55438

*****

CASE 0:08-cv-05687-ADM-RLE Document 82 Filed 05/04/10 Page 3 of 8 3

1

(2:50 p.m.)

2

PROCEEDINGS

3

IN OPEN COURT

4

THE COURT: The Court has before it this afternoon

5 the matter of Kenneth E. Andersen, Dell D. Holm, on behalf of

6 themselves and all others similarly situated, and William K.

7 Bulmer, II, on behalf of himself and all others similarly

8 situated, versus the County of Becker, Minnesota; Tim Gordon,

9 in his capacity as Sheriff of Becker County; and Joseph H.

10 McArthur, in his capacity as Captain in the Becker County

11 Sheriff's Department. It bears Civil File Number 08-5687.

12

Specifically, the parties advised they reached an

13 amicable resolution of their dispute and are desirous of

14 putting it on the record.

15

Would counsel note their appearances, please. We'll

16 start with counsel for the plaintiffs.

17

MR. MILLER: Bryce Miller from Sprenger & Lang for

18 the plaintiffs.

19

THE COURT: On behalf of the defendants?

20

MR. IVERSON: John Iverson and Susan Tindal on

21 behalf of the defendants.

22

THE COURT: Okay. I'd ask the attorneys, one or the

23 other, to recite the essential terms of the settlement on the

24 record, recognizing that it will be reduced to paper at some

25 point. I'd ask that everybody else listen in closely so if

TIMOTHY J. WILLETTE, RDR, CRR, CBC, CCP (612) 664-5108

CASE 0:08-cv-05687-ADM-RLE Document 82 Filed 05/04/10 Page 4 of 8 4

1 they don't understand something they can ask a question of

2 their respective attorneys.

3

Following those recitations, if everybody is

4 satisfied that's the agreement in principle, then as is

5 usually the case, the plaintiffs' counsel will be making a

6 record with his clients.

7

MR. IVERSON: Thank you, your Honor.

8

The defendants have agreed to resolve all claims in

9 the captioned matter for the total sum of $104,000, which will

10 be inclusive of all costs and attorneys' fees incurred in this

11 matter. It will be paid in a settlement check to Plaintiffs'

12 counsel's trust account subject to disbursement after all

13 appropriate releases are received.

14

We will need the Social Security numbers and tax ID

15 numbers of the respective parties to issue the check.

16

The check will be coming from the Minnesota Counties

17 Insurance -- or Intergovernmental Trust on behalf of Becker

18 County.

19

It is inclusive of all of the claims asserted in the

20 lawsuit in this matter. It is a resolution of all claims in

21 addition to the wiretap claims that have been remaining from

22 the summary judgment motion, but it also includes an agreement

23 that all of the claims initially disposed of are dismissed.

24

I did mention it includes all attorneys' fees under

25 the wiretap statute, as well as 42 U.S.C., Section 1988,

TIMOTHY J. WILLETTE, RDR, CRR, CBC, CCP (612) 664-5108

CASE 0:08-cv-05687-ADM-RLE Document 82 Filed 05/04/10 Page 5 of 8 5

1 Minnesota Statute 549.21, I believe, and it is a dismissal of

2 all claims.

3

Counsel and I have discussed an appropriate release

4 will be prepared. Obviously, it's going to be an admission

5 without liability, and it's -- and I think that's it.

6

THE COURT: Mr. Miller.

7

MR. MILLER: You want me to put the plaintiffs on

8 the record as agreeing to this, I assume.

9

THE COURT: Yeah, if you want to come up to the

10 speakerphone.

11

MR. MILLER: Mr. Andersen?

12

MR. ANDERSEN: Yes.

13

MR. MILLER: Did you hear the agreement as it was

14 articulated by defense counsel?

15

MR. ANDERSEN: I couldn't hear a word he said.

16

MR. MILLER: Okay. The essential terms of the

17 agreement are that we are going to have a full and final

18 release of all the claims that are brought in the complaint,

19 both those that were dismissed at summary judgment and those

20 that did not, those wiretap statute claims, and that would be

21 inclusive of all forms of relief, both monetary for the

22 plaintiffs and also attorneys' fees and costs. And it was

23 $104,000 that we settled this case for and they'll be making

24 that payment to your counsel, Sprenger & Lang, and then we'll

25 be disbursing that amount out as we discussed.

TIMOTHY J. WILLETTE, RDR, CRR, CBC, CCP (612) 664-5108

CASE 0:08-cv-05687-ADM-RLE Document 82 Filed 05/04/10 Page 6 of 8 6

1

Do you agree to that settlement?

2

MR. ANDERSEN: Yes, sir.

3

MR. MILLER: Mr. Holm, did you hear what I just

4 said?

5

MR. HOLM: Yes, I did.

6

MR. MILLER: And do you agree to that settlement?

7

MR. HOLM: I do agree.

8

THE COURT: Okay.

9

MR. MILLER: And then we have Mr. Bulmer.

10

THE COURT: Oh, Mr. Bulmer. Up to the lectern would

11 be fine, Mr. Bulmer.

12

MR. BULMER: I've heard the agreement, your Honor.

13 I do agree.

14

THE COURT: Okay. The Court concludes that the

15 parties have reached an amicable resolution of the dispute.

16

The Court will send an e-mail to Judge Montgomery

17 advising her of that fact. In all likelihood she'll issue an

18 order of dismissal with prejudice, but reserve jurisdiction

19 for a period of 45 days in which you folks can submit your

20 closing documents.

21

Looking in from the outside, it is the Court's

22 judgment that the settlement that was reached is an exercise

23 of good business judgment by all concerned.

24

I ask that you all travel safely to where you're

25 going. We stand adjourned.

TIMOTHY J. WILLETTE, RDR, CRR, CBC, CCP (612) 664-5108

CASE 0:08-cv-05687-ADM-RLE Document 82 Filed 05/04/10 Page 7 of 8 7

1

MR. IVERSON: Thank you, your Honor.

2

MS. TINDAL: Thank you, your Honor.

3

MR. MILLER: Thank you, your Honor.

4

MR. ANDERSEN: I have one question. Do we get

5 copies of what happened here today?

6

THE COURT: Ordinarily we don't make -- we have a

7 recording of it, but we don't make a transcript of it.

8

MR. ANDERSEN: And can I get a recording of -- how

9 do I go about just getting a recording of it?

10

THE COURT: You'll have to talk to my calendar

11 clerk.

12

MR. IVERSON: We will be issuing a release document

13 for signature and I've advised Counsel that the settlement

14 check will be forthcoming, within two weeks at the latest from

15 the date that we get the signed release documents, which will

16 recite the terms of this settlement agreement.

17

MR. MILLER: Kenny, we'll be sending a release to

18 you that will have everything we just talked about in it,

19 okay?

20

MR. ANDERSEN: All right.

21

MR. MILLER: And so after you receive that, if you

22 feel like there's something else you need, we can talk about

23 how you might go about getting that information.

24

MR. ANDERSEN: All right.

25

MR. MILLER: Great.

TIMOTHY J. WILLETTE, RDR, CRR, CBC, CCP (612) 664-5108

CASE 0:08-cv-05687-ADM-RLE Document 82 Filed 05/04/10 Page 8 of 8 8

1

THE COURT: Have a good one, guys.

2

MR. ANDERSEN: So we're done with this conversation?

3

THE COURT: We're done.

4

(Proceedings concluded at 3:00 p.m.)

5

*****

6

7

8

9

10 CERTIFICATE
11

12

I, TIMOTHY J. WILLETTE, Official Court Reporter

13

for the United States District Court, do hereby

14

certify that the foregoing pages are a true and

15

accurate transcription of an audio disc of

16

proceedings taken in the aforementioned matter,

17

to the best of my skill and ability.

18

19

20

/s/ Timothy J. Willette

21

TIMOTHY J. WILLETTE, RDR, CRR, CBC, CCP

22

Official Court Reporter - U.S. District Court

1005 United States Courthouse

23

300 South Fourth Street

Minneapolis, Minnesota 55415-2247

24

612.664.5108

25

TIMOTHY J. WILLETTE, RDR, CRR, CBC, CCP (612) 664-5108

 
 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Kenneth E. Andersen and Dell D. Holm, on behalf of themselves and all others similarly situated,

and

William K. Bulmer, II, on behalf of himself and all others similarly situated,

Plaintiffs,

MEMORANDUM OPINION

AND ORDER

vs.

Civil No. 08-5687 ADM/RLE

The County of Becker, Minnesota, Tim Gordon, in his capacity as Sheriff of Becker County, and Joseph H. McArthur, in his capacity as Captain in the Becker County Sheriff's Department,

Defendants.

______________________________________________________________________________

Jeffrey A. Abrahamson, Esq., Mara R. Thompson, Esq., and Daniel C. Bryden, Esq., Sprenger & Lang, PLLC, Minneapolis, MN, appeared for and on behalf of the Plaintiffs.

Susan M. Tindal, Esq., and Jon K. Iverson, Esq., Iverson Reuvers, Bloomington, MN, appeared for and on behalf of the Defendants. ______________________________________________________________________________

I. INTRODUCTION

On August 14, 2009, the undersigned United States District Judge heard oral argument

on Defendants Becker County, Tim Gordon, and Joseph H. McArthur’s (collectively

“Defendants”) Motion for Summary Judgment [Docket No. 38] and Plaintiffs Kenneth E.

Andersen (“Andersen”), Dell D. Holm (“Holm”), and William K. Bulmer, II’s (“Bulmer”)

(collectively (“Plaintiffs”) Motion for Summary Judgment on Counts VI, VIII, and IX [Docket

No. 47]. Plaintiffs allege violations of the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Article I, Sections 6, 7, and 10 of the Minnesota Constitution; 18 U.S.C. §§ 2510-22; Federal Common Law; Minn Stat. § 481.10, subd. 2; Minn Stat. § 626A.02; Minnesota Common Law; and Misappropriation of Attorney Work Product under Minnesota Law. 1st Am. Compl. [Docket No. 3] ¶¶ 75-126. For the reasons set forth below, Defendants’ Motion is granted in part and denied in part, and Plaintiffs’ Motion is denied.
II. BACKGROUND1 On June 14, 2007, a Complaint was filed in Becker County District Court charging Andersen with second degree murder. Tindal Aff. [Docket No. 45] Ex. D at 1. Andersen was booked into the Becker County Jail (the “Jail”) on June 19, 2007. Andersen Decl. [Docket No. 57] ¶ 2. He remained in the Jail until June 13, 2008, after which he began serving his sentence in Rush City, Minnesota. Hodgson Aff. [Docket No. 43] ¶ 6. Holm was booked into the Jail on May 7, 2008 and remained there until March 30, 2009. Id. ¶ 5. Holm pled guilty to Felony Assault with a Dangerous Weapon and is currently serving a 36-month sentence. Tindal Aff. Exs. F, G. Bulmer represented Andersen in his criminal case. Bulmer Decl. [Docket No. 59] ¶ 2. Bulmer worked at the Giancola Law Firm, PLLC until January 2008, at which time he left the firm. Id. ¶ 3. Bulmer continues to represent Andersen in the criminal case. Becker County contracts with Reliance Telephone, Inc. (“Reliance”) to install and operate the inmate phone system at the Jail. Gordon Aff. [Docket No. 25] ¶¶ 1, 2. When an
1 On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). As both parties have moved for summary judgment, any disputed facts are noted.
2

inmate is booked into the Jail,2 Jail staff reads a warning to the inmates informing them that the telephones for inmate use are monitored and recorded and that an inmate has a right to a nonrecorded, privileged call with an attorney. Tindal Aff. Ex. I (Hodgson Dep.) at 26-27. The warning read by Jail staff does not inform inmates about how to make an unrecorded call to an attorney. Id. at 27. The inmate is also made aware of the inmate handbook and is either given a copy or told where to locate one in the inmate common area. Id. at 37. Addressing inmate phone calls, the handbook provides: “Any non-attorney/client privileged phone calls made from the Becker County Jail will be monitored and/or recorded.” Id., Ex. 3 (Inmate Handbook) at 9. Signs posted next to the inmate phones state, “All phone calls and messages to and from the Becker County Jail are monitored and/or recorded. This includes the visiting booths. Exceptions are phone calls made to an attorney.” Id., Ex. 5. The Jail records inmate calls for purposes of Jail security, to prevent escapes, and to aid in inmate well-being such as suicide prevention. Id. at 116. It also aids staff in monitoring inmates on work-release programs. Id.
Also at the time of booking, an inmate is told how to arrange for a private attorney-client call. Id. at 53. If an inmate requests a call to an attorney who is not known to be an attorney by the Jail staff, the inmate must provide the attorney’s phone number in writing so staff can verify that it is an attorney number. Id. at 54. The staff then forwards the phone number to Reliance who confirms the number is that of an attorney and designates the number as “private.” Id. at 58. Jail staff can also make a phone number “private” if they confirm that the number does, in fact, belong to an attorney. Id. Once a number is marked as “private,” it is placed on “the List” and
2 The Jail changed its procedure slightly in December 2008 as discussed infra. The procedure recounted here is the procedure the Jail followed at the time Andersen and Holm were booked into the Jail.
3

Reliance will not record the phone call. Id. at 59. The same process is required for placing the phone number of an attorney’s private investigator on the List. Id. at 79. Attorneys cannot directly contact inmates and must call the Jail and have a staff member inform the inmate that the inmate should call his attorney. Id. at 65. The Jail policy is not to allow attorney cell phone numbers to be included on the List because of potential for abuse, but occasionally, exceptions are made. Id. at 84-86, 89. The system does not monitor phone calls while the conversation is taking place; they can only be listened to after the call is completed. Id. at 90. At the time this suit was initiated, the system used by the Jail could store recorded phone calls for approximately 244 days. Id. at 96-97.
While the Jail’s policy was to orally inform inmates of how to place an attorney’s number on the List, it appears that sometimes an inmate would be informed only when he specifically asked. Id. at 152. Jail staff also testified that many times an inmate will ask other inmates how to request a private call. Tindal Aff. Ex. L (Soyring Dep.) at 28. Staff also testified that they were not trained on instructing inmates about how to place a number on the List but learned about the process through observation. Tindal Aff. Ex. M (Peterson Dep.) at 27. They stated that it was rare for an attorney’s number not to already be included on the established List. Id. Andersen and Holm state that they were never informed at booking about how to request a private phone call with an attorney. Andersen Decl. ¶¶ 4, 5; Holm Decl. [Docket No. 58] ¶¶ 3, 4.
Andersen claims that shortly after meeting with Bulmer and another attorney, he provided the Jail with Bulmer’s business card showing his phone numbers, and the Jail made a copy of the card. Andersen Decl. ¶¶ 20, 21. He also provided the Jail with a copy of the business card of Glen Fladmark (“Fladmark”), the investigator his attorneys hired for the case.
4

Id. ¶ 22. In the fall of 2007, Andersen and his attorneys began to suspect that the phone calls between them, and Andersen’s calls to Fladmark, were being monitored. Id. ¶ 31. They tested their theory by having Bulmer tell Andersen over the phone that he would bring narcotics to Andersen during his next visit. Id. ¶ 32. Andersen states that Jail staff expressed more interest to him about when Bulmer would next be visiting, searched his cell more often, and searched Bulmer more thoroughly during his next visit than was customary. Id. ¶¶ 33-35. Bulmer testified similarly, stating that Jail staff searched him much more thoroughly on the next visit. Tindal Aff. Ex. K (Bulmer Dep.) at 61-64. Shortly thereafter, Andersen and his attorneys were informed about the process for placing a number on the List. Andersen Decl. ¶ 39.
Andersen’s attorneys requested that their numbers be placed on the List in late November or early December 2007. McArthur Aff. [Docket No. 44] Ex. 1. A few weeks later, the attorneys informed Defendants that their calls were still being monitored. Id. Evidence produced in discovery suggests a change in the procedure of how Reliance would block the phone numbers caused some numbers to be omitted from the List. Id. Defendants were not aware of Reliance’s change in procedure. Id. The numbers of Andersen’s attorneys, with the exception of the cell phone numbers, were added to the List in early December. Id.
It is undisputed that because Andersen’s attorneys’ numbers were not effectively placed on the List, they were subject to monitoring. Officer Baumann testified that he did listen to an approximately one-minute portion of one call between Andersen and his attorney until he realized that Andersen was speaking to his attorney. Tindal Aff. Ex. J (Baumann Dep.) at 71, 81. Defendants have a policy that requires correctional officers to stop listening to a call once they realize it is between an inmate and his attorney. Tindal Aff. Ex. B (Omnibus Hr’g Tr.) at 126.
5

Officer Baumann also testified that after he listens to an attorney call, he looks through the remainder of the call log in storage and deletes all the calls to that number. Id. at 140. Baumann has testified that in the initial portion of the conversation he overheard between Andersen and his attorneys, he never heard any discussions of information concerning the case, witnesses, or trial strategy. Id. at 141. Additionally, he never initiated an investigation or made an inquiry based on information he heard in the calls. Id.
On March 7, 2009, a contested omnibus hearing was held before Judge Peter M. Irvine in Andersen’s criminal case. Omnibus Hr’g Tr. at 1. In that hearing, Andersen’s attorney raised the issue of the monitored attorney-client phone calls and asked that the indictment be dismissed. Id. at 109. Judge Irvine took testimony from Captain McArthur and Officer Baumann. Id. at 113, 138. Captain McArthur testified about the procedures for making a private phone call at the Jail as well as the mistake in not getting Andersen’s attorneys’ numbers on the List. Id. at 113137. Officer Baumann testified at the hearing that he both deleted privileged calls and destroyed CD copies that might contain the recording. Id. at 144. Judge Irvine ordered Defendants to stop recording any calls between Andersen and his attorneys, whether made to cell phones or land lines. Id. at 149.
On June 11, 2008, Judge Irvine issued a memorandum opinion and order determining that the State did not deny Andersen access to his attorney. Tindal Aff. Ex. C (Judge Irvine Order) at 6. Judge Irvine found that law enforcement officials listened to Andersen’s calls to his attorney but ceased listening once the official determined it was an attorney-client call. Id. at 7. He found there was no evidence law enforcement officials listened to a conversation after it was determined to be an attorney-client call. Id. He also found there was no evidence that anyone
6

heard information related to the case. Id. He concluded that there was no evidence of prejudice
to Andersen’s rights, the practice of recording Andersen’s attorney-client calls had stopped, and
grounds to dismiss the indictment were lacking. Id.
This federal civil action was filed on October 15, 2008. Compl. [Docket No. 1]. On
October 29, Plaintiffs moved for a temporary restraining order seeking to halt Defendants’
inmate telephone practices. Motion for Temporary Restraining Order [Docket No. 4]. On
October 31, attorneys for the Plaintiffs and Defendants participated in a conference call with the
Court, and Defendants were ordered not to intercept calls from the attorneys and attorneys’
investigators appearing on behalf of Andersen and Holm. Following a hearing on December 12,
2008, the Court denied the Motion for a Temporary Restraining Order, finding that none of the
Plaintiffs were currently incarcerated at the Jail, and they had submitted no evidence or affidavits
that the practice of monitoring calls was ongoing. December 12, 2008 Order [Docket No. 29] at
1-2.
Since the filing of the Complaint, Defendants amended the inmate handbook and revised
the signs near the inmate telephones. The Amended Handbook provides,
Inmates may request in writing free and non-recorded telephone calls with their attorney. T he request will only be gran ted after written verification from the attorney of representation. This free and nonrecorded call with an attorney will only be granted to a land line, not a cell phone. Inmates may also request a non-recorded telephone call with their attorney’s investigator. This request will only be granted after written verification the investigator is licensed and either an employee of the inm ate’s attorney or has a contract with that attorney.
Hodgson Dep. Ex. 2 (Amended Inmate Handbook) at 9-10. The signs near the phone contain
similar language. Id. Ex. 4. The Jail now requires an inmate to fill out a form on which he must
7

request a private attorney phone call. Id. at 54, Ex. 6. III. DISCUSSION
A. Summary Judgment Standard Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not “rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.” Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). B. Threshold Issues3
Defendants raise a number of threshold issues which they claim bar Plaintiffs’ claims. Specifically, they argue that Andersen’s claims are barred by collateral estoppel, Andersen’s and Holm’s claims are precluded by the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994), and Bulmer lacks standing to assert his claims.
1. Collateral Estoppel
3 Plaintiffs have styled their Complaint as a class action. They have not brought a Rule 23 motion, and the Court will only consider the named Plaintiffs’ claims.
8

A collateral estoppel defense requires that (1) the precluded issue must be the same as in the prior action; (2) the issue must have been litigated; (3) the issue was determined by a valid and final judgment; (4) the determination was essential to the final judgment; and (5) the estopped party must be a party to or in privity with a party to the prior litigation. Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 922 (8th Cir. 1997). “Under the judicially-developed doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that determination is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation.” United States v. Mendoza, 464 U.S. 154, 158 (1984). Defendants argue that Judge Irvine’s April 13, 2008 Order and June 11, 2008 Memorandum estops Andersen from relitigating these claims because Judge Irvine found the State did not deny Andersen access to his attorney, and hence, his right to a fair trial. Tindal Aff. Ex. C at 6-7.
Plaintiffs argue that collateral estoppel does not apply here because Judge Irvine’s finding was that Andersen was not prejudiced by the recording of and limited listening to Andersen’s attorney-client phone calls. Id. at 7. Plaintiffs contend that unlike suppression under the Sixth Amendment, which requires a finding of prejudice, a Constitutional violation (sufficient to maintain a civil rights action under 28 U.S.C. § 1983) may occur in the absence of such prejudice. See United States v. Morrison, 449 U.S. 361, 367 (1981). Thus, they maintain, the question before the Court in this case, whether the recording and monitoring of attorneyclient phone calls violates constitutional, statutory, and common law principles for purposes of § 1983 liability, was not addressed in Judge Irvine’s Order and Memorandum.
Judge Irvine’s consideration of the case involved different issues than those presented
9

here. Defendants’ reliance on Allen v. McCurry, 449 U.S. 90 (1980), and Migra v. Warren City
School District Board of Education, 465 U.S. 75 (1984), is misplaced. In those cases, the
plaintiffs sought to relitigate an issue that required the same elements of proof already decided in
a prior action. Allen, 449 U.S. at 102; Migra, 465 U.S. at 84. Accordingly, the Court found that
collateral estoppel barred the subsequent claim. Allen, 449 U.S. at 103; Migra, 465 U.S. at 84.
In this suit, establishing the elements of the constitutional, statutory, and common law violations
does not require a finding of prejudice, which was required to warrant dismissal of the
indictments, the issue confronting Judge Irvine. Collateral estoppel does not bar the majority of
Andersen’s claims.
There is one exception to this conclusion. Judge Irvine specifically found that
Andersen’s right to confidential communication with his attorney pursuant to Minn Stat. §
481.10, subd. 2, was not violated. Tindal Aff. Ex. C at 6-7. Accordingly, collateral estoppel
bars Andersen’s claim under that statute.
2. Heck v. Humphrey
Defendants next argue that Andersen’s and Holm’s claims are precluded by the Supreme
Court’s holding in Heck, 512 U.S. at 486-87. In Heck, the Court held:
[I]n order to recover dam ages for allegedly unconstitutional conviction or im prisonment, or f or other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a fe deral court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence tha t has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks dam ages in a § 1983 suit, the district court m ust consider whether a judgment in favor of the plaintiff will necessarily
10

imply the invalidity of his conviction or s entence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has a lready been invalidated. But if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outs tanding criminal judgment against the plainti ff, the action should be allowed to proceed in the absence of some other bar to the suit.
Id. (footnotes omitted). Heck does not apply in this case. It is uncontested that neither Andersen
nor Holm attacks the validity of their underlying convictions in this suit. A finding of violations
of their constitutional rights would not invalidate their state court convictions. Even if a jury
were to find that Defendants’s recording and monitoring of Andersen’s and Holm’s attorney-
client phone calls violated state and federal common law and the state and federal constitution,
Andersen’s and Holm’s convictions and pleas were not based on any information from those
phone calls, and, thus, there could be no prejudice resulting from the illegal recording and
monitoring sufficient to render the convictions constitutionally defective. Andersen’s and
Holm’s claims in the current suit are not precluded by Heck. 3. Bulmer’s Standing4
Standing is a “threshold issue in determining whether a Federal Court may hear a case.”
Republican Party of Minn., Third Congressional Dist. v. Klobuchar, 381 F.3d 785, 791 (8th Cir.
2004). Under Article III of the Constitution, a party bringing a claim bears the burden of
establishing that he has standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At
a minimum, standing requires a “case or controversy” in which (1) the plaintiff has suffered a
“concrete and particularized” injury in fact that is “actual and imminent, not conjectural or
hypothetical;” (2) “there must be a causal connection between the injury and the conduct
4 Bulmer alleges violations of the First Amendment, the federal and state wiretap statutes, state common law intrusion into seclusion, and state common law attorney-client work product.
11

complained of;” and (3) the injury must be capable of being “redressed by a favorable decision.”
Id. at 560 (internal quotations and citations omitted).
Bulmer lacks standing to address his First Amendment claim that his speech with his
client has been chilled by the recording and monitoring of the attorney-client calls by the jail
staff. The alleged injury is that recording and monitoring “has produced a serious chilling effect
upon what [Plaintiffs] are able to communicate to their attorneys via telephone for fear that [the
Jail]—and ultimately law enforcement personnel and the prosecution—will be privy to their
attorney/client privileged communications.” 1st Am. Compl. ¶ 77. Under Supreme Court
precedent, a claim of a chilling effect, in and of itself, is not sufficient to establish standing. See
Laird v. Tatum, 408 U.S. 1, 13-14 (1972); see also Eckles v. City of Corydon, 341 F.3d 762, 767
(8th Cir. 2003) (recognizing that allegations of a “subjective chill” fail to establish standing and
that there must be “a claim of specific present objective harm or a threat of specific future
harm”) (quotations omitted). In Laird, the Supreme Court considered an action seeking a
judicial declaration that alleged surveillance by the Army of “‘lawful and peaceful civilian
political activity’” was unconstitutional. Id. at 2. In addressing the issue of whether the
plaintiffs had standing to pursue their claims, the Court noted:
In recent years this Court has found in a num ber of c ases that constitutional violations may arise from the deterrent, or chilling, effect of governm ental regulations that fall short of a direct prohibition against the exercise of First Amendment Rights. In none of these cases, however, did the chilling effect arise merely from the individual’s knowledge that a governmental agency was engaged in certain activities or f rom the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual. Rather, in each of these cases, the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the com plainant was either presently or prospectively
12

subject to the regulations, proscriptions, or compulsions that he was challenging. Id. at 11. (quotations omitted) (emphasis added). Thus, the Court concluded that “[a]llegations of a subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Id. (quotation omitted). The District of Columbia Circuit Court of Appeals, in a similar case, held that decisions that have found a chilling effect to be sufficient to confer standing have “involve[d] situations in which the plaintiff has unquestionably suffered some concrete harm (past or immediately threatened) apart from the ‘chill’ itself.” United Presbyterian Church in the U.S.A. v. Reagan, 738 F.2d 1375, 1378 (D.C. Cir. 1984). The court explained that the “[c]hilling effect is . . . the reason why the governmental imposition is invalid rather than . . . the harm which entitles the plaintiff to challenge it.” Id. at 1378. In a case that is particularly analogous to the case at bar, the court in Al-Owhali v. Ashcroft held that a plaintiff lacked standing to challenge a federal prison’s regulations specifying the contents of a notice that would be provided to a prisoner when the prison had decided to commence monitoring of the inmates communications with his attorney. 279 F. Supp. 2d 13, 17-18 (D.D.C. 2003). The alleged injury was the chilling effect that the attorney-monitoring regulations would have on the plaintiffs ability to communicate with his attorney. 279 F. Supp. 2d at 26. Bulmer also lacks standing to bring a claim of misappropriation of attorney work product. There is no evidence that anyone listened to his conversations with Andersen after it was determined that the calls were between an attorney and client. No work product of Bulmer’s was used by any Defendant, any agents of Defendants, or the State. Even accepting Bulmer’s assertion that his advice has “independent economic value,” that advice was never
13

misappropriated, and, thus, Bulmer has not experienced any injury. Pls.’ Mem. in Opp’n to Summ. J. [Docket No. 56] at 43. The misappropriation of attorney-client work product claim is dismissed for lack of standing.
Bulmer has standing, however, to assert his claims under the federal and state wiretap statutes. The statutes forbid recording of a person’s phone calls, and, thus, Bulmer has alleged an injury (the recording), causation (the Jail’s policies), and redressibility (equitable and legal relief) for these causes of action. Were Bulmer to demonstrate that Defendants’ conduct was “highly offensive,” see Swarthout v. Mutual Services Life Insurance Co., 632 N.W.2d 741, 744 (Minn. Ct. App. 2001), he would likewise have standing to pursue an intrusion into seclusion claim.
4. Monell Liability In their brief, Plaintiffs clarify that they “have never brought individual claims against either Gordon or McArthur; instead[,] Plaintiffs have always maintained claims against them in their official capacity.” Pls.’ Mem. in Opp’n to Summ. J. at 41. “An official-capacity suit is merely another way of pleading an action directly against the public entity itself.” Roberts v. Dillon, 15 F.3d 113, 115 (8th Cir. 1994) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)); see also Guzman v. Sheahan, 495 F.3d 852, 859 (7th Cir. 2007) (“An official capacity suit is tantamount to a claim against the government itself.”). Under the Supreme Court’s decision in Monell v. Department of Social Services, 436 U.S. 658, 690-92 (1978), a governmental entity cannot be held liable under § 1983 merely because its employees committed unconstitutional acts. Instead, Defendants are liable under § 1983 only if their “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,
14

1546 (8th Cir. 1992). Plaintiffs argue that Defendants have an unconstitutional policy of recording inmates’
attorney-client phone calls and of not informing them of how to request a non-recorded and nonmonitored phone call. There is no evidence to support this assertion. The County has a policy of requiring all inmates to request in writing a non-monitored call to an attorney. An inmate must give the Jail the number so that the Jail can verify that the number is that of an attorney. Once the number is verified, any calls to that number cannot be monitored. Plaintiffs’ attempt to describe the County’s “policy” as “not informing inmates how to request a non-monitored call,” or “not informing inmates during booking how to arrange an unmonitored call” is an inappropriate stretch of the facts. See Pls.’ Mem. in Opp’n to Summ. J. at 40. To the contrary, the record demonstrates that the policy is to provide inmates with such information, but that on occasion, Jail staff might inadvertently fail to inform an inmate about the procedure. Likewise, the vast majority of attorney numbers are placed on the do not record list, and any monitoring appears to be the exception, not the rule. As the Eighth Circuit has recognized, “[a] policy is a deliberate choice to follow a course of action . . . made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.” Hayes v. Faulkner County, 388 F.3d 669, 674 (8th Cir. 2004) (quotation omitted) (emphasis added). The apparent inadequacies in the implementation of the Jail’s policy and monitoring system do not rise to the level of showing a “deliberate choice” to follow a course of action, and, thus, there is no unconstitutional policy. Cf. Larson v. Miller, 76 F.3d 1446, 1453 (8th Cir. 1996) (en banc) (holding, in a failure to train case, that proving deliberate indifference to establish an unconstitutional policy requires a showing that the governmental entity knew its
15

procedures were inadequate and likely to result in a violation of constitutional rights). There is also no evidence that the County has a “custom” of violating inmates’ rights.
“Monell liability also attaches ‘for constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal approval through the body’s official decision-making channels.’” Kuha v. City of Minnetonka, 365 F.3d 590, 603 (8th Cir. 2003) (quoting Monell, 437 U.S. at 690-91)). To establish such a custom, a plaintiff must show that the alleged constitutional violation was caused by a widespread, persistent pattern of unconstitutional misconduct by government employees that government policy makers either were indifferent to or tacitly authorized. Larson, 76 F.3d at 1453. The evidence fails to support an inference of a “custom” at the Jail to violate the inmates rights. Again, the evidence shows that there were only occasional instances in which an inmate was not informed about how to make a non-monitored phone call to his attorney or when an attorney-client phone call was inadvertently recorded. Peterson Dep. at 34, Soyring Dep. at 36.
Because Plaintiffs have asserted only official-capacity claims, their claims under § 1983 cannot survive summary judgment unless Plaintiffs can establish liability under Monell. Having failed to do so, Defendants’ Motion for Summary Judgment is granted as to all of Plaintiffs’ claims under § 1983. But assuming for the moment that Plaintiffs could satisfy the requirements of Monell, Plaintiffs’ § 1983 claims nonetheless fail for the reasons discussed below. C. Substantive Issues
Plaintiffs have taken a scatter-gun approach to asserting claims in their Complaint. As an initial matter, the Court recognizes some general principles of law that courts have applied to inmate challenges to procedures within a penal institution. First, “when a prison regulation
16

impinges on an inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Monitoring inmates’ phone calls not protected by attorney-client privilege serves a legitimate penological interest in the safety and security of staff and inmates. See United States v. Hammond, 286 F.3d 189 (4th Cir. 2002). Through the monitoring of an inmate’s call at the Jail, staff prevented a suicide attempt. Soyring Dep. at 23. When a prison or jail clearly informs an inmate that phone calls may be monitored, the subsequent use of the phone by an inmate implies consent to the call being monitored. See United States v. Gross, 554 F. Supp. 2d 773, 777 (N.D. Ohio 2008); United States v. Gotti, 42 F. Supp. 2d 252, 284 (S.D.N.Y. 1999). Finally, it is uncontested that Becker County has updated its inmate handbook and the language on the signs within the jail to more fully and explicitly inform inmates of how to request a private call to an attorney. Hodgson Dep. Compare Exs. 2 and 4 with Exs. 3 and 5.
There is no dispute that portions of phone calls were listened to by law enforcement. Defendants assert, and Plaintiffs proffer no evidence to rebut, that the investigators stopped listening when they realized that a call was between an inmate and an attorney and that the recording was then deleted. There is also no evidence that the investigators heard any incriminating statements by inmates, and no attorney-client recording was used in the prosecution of Andersen or Holm, nor was any information heard prior to the deletion of the recording used in the prosecutions. With the stage thus set, the Court will analyze the claims.
1. First Amendment Plaintiffs allege that the monitoring and/or recording of attorney-client privileged telephone conversations has produced a serious chilling effect on the matters about which clients
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and attorneys are able to communicate over the phone. 1st Am. Compl. ¶ 77. Plaintiffs assert that the mere “fact that the Jail records these privileged communications restricted [their] First Amendment rights because they could not openly and freely communicate with their attorney.” Pls.’ Mem. in Opp’n to Summ J. [Docket No. 53] at 30. Though not argued by Defendants, the analysis concluding that Bulmer lacks standing to assert a First Amendment claim based on such a claimed chilling effect, see supra III.B.3, applies equally to Andersen and Holm.5 But even if Plaintiffs had standing to assert their First Amendment claims, the claims nevertheless fail.
Plaintiffs’ contention ignores the alternative means of communicating that were available. There was no restriction on their ability to freely and openly communicate with their attorneys in person or through the mail. See Samford v. Dretke, 562 F.3d 674, 680 (5th Cir. 2009) (upholding a restriction on inmates ability to communicate with minor children because he had an alternate means to communicate with them through the mother); Sisneros v. Nix, 884 F. Supp. 2d 1313, 1329 (N.D. Iowa 1995) (finding that English only policy was not a First Amendment violation, in part, because it allowed an alternate means of communication to inmates). Moreover, at the time they were communicating with their attorneys, they believed they could make an unmonitored phone call, and, thus, no chilling effect occurred. If there was any intrusion into constitutionally protected rights, it was not a violation of Plaintiffs First Amendment rights.
2. Fourth Amendment Andersen and Holm allege that their attorney-client phone calls were monitored without their consent, in violation of the Fourth Amendment’s prohibition against unreasonable searches.
5 Standing is a jurisdictional requirement that a court is obliged to consider sua sponte. See Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994).
18

1st Am. Compl. ¶¶ 79-83. In determining whether a jailhouse search is unreasonable, a court must balance “the need of the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). When the search involves an inmate, a court should balance the legitimate penological interest against the privacy interests of the inmate. Id. at 560 (upholding a requirement that inmates undergo a visual body cavity search).
Defendants argue they have a legitimate penological interest in recording inmate phone calls. Plaintiffs respond that regardless of the legitimacy of the interest, recording attorney-client phone calls does not further that interest. Courts examining similar issues have focused on the question of consent. In United States v. Novak, 531 F.3d 99, 101 (1st Cir. 2008), Justice O’Connor, sitting by designation, confronted a situation in which jail staff monitored attorneyclient phone calls and then used that information against the defendant. The defendant sought to suppress the evidence arguing that the monitoring violated the Fourth Amendment. Id. The District Court agreed, but the First Circuit reversed. Id.
Justice O’Connor wrote that the court was “troubled” by the monitoring and use of attorney-client phone calls but found no Fourth Amendment violation because the defendant consented to the monitoring. Id. at 102. The court based its consent finding on (1) the signs posted by the phones, which stated that “[c]alls are subject to monitoring and recording”; and (2) the automated message played at the beginning of every call warning the inmate that the call is subject to monitoring and recording. Id. at 100. There was a process through which an attorney number could be exempted, but because of a mechanical error, the calls were mistakenly
19

monitored. Id. The First Circuit recognized that the defendant may have a protected interest in the privacy of attorney-client phone calls, but such an interest does not exist when one party consents to monitoring. Id.
The case at bar presents a different fact pattern than that in Novak. In Novak, the defendant was clearly placed on notice that his calls were being recorded and monitored. Here, a fact question exists concerning whether Andersen and Holm consented to the recording. There is conflicting testimony about whether they were informed of the procedure to request a private attorney phone call. Taking the evidence in the light most favorable to Plaintiffs, and given the notice that was by the telephones indicating that all calls were subject to monitoring and recording except attorney calls, a fact-finder could conclude that Andersen and Holm did not consent to such monitoring.
Defendants argue that even if there was a violation, they are immune from suit based on qualified immunity. Qualified immunity does not apply because Defendants are being sued solely in their official capacity. See Kentucky v. Graham, 473 U.S. 159, 167 (1985) (holding that qualified immunity is unavailable to a defendant sued in his official capacity). However, because Plaintiffs have failed to establish Monell liability on their § 1983 official-capacity claims, as discussed supra III.B.4, Andersen’s and Holm’s Fourth Amendment claims cannot survive summary judgment.
3. Fifth Amendment Andersen and Holm allege that statements they made in monitored phone calls to their attorneys were used against them and violated their right against self-incrimination under the Fifth Amendment. 1st Am. Compl. ¶¶ 84-89. There is no evidence that any information from an
20

attorney-client phone call was used against either Andersen or Holm. Plaintiffs argue that they are unable to present any evidence of self-incriminating statements because Defendants destroyed evidence of wrongdoing, and the Court should therefore make an adverse inference about the lack of evidence. No such inference is warranted in this case. In determining whether an adverse inference should be made, courts consider “(1) whether the record retention policy was reasonable considering the facts and circumstances surrounding those documents, (2) whether lawsuits or complaints have been filed frequently concerning the types of records at issue, and (3) whether the document retention policy was instituted in bad faith.” Stevenson v. Union Pacific R.R. Co., 354, F.3d 739, 746 (8th Cir. 2004).
At the time this suit was filed, the Jail phone system could maintain phone calls for approximately 244 days before the information would automatically be recorded over. Hodgson Dep. at 94. The retention is based entirely on storage capacity and reasonable. There is also no indication that there have been other lawsuits or complaints involving the policy and no indication it was implemented in bad faith. The omnibus hearing before Judge Irvine took place on March 7, 2008, at which point no further monitoring and recording of Plaintiffs’ attorneyclient phone calls took place pursuant to a court order, and Plaintiffs did not commence this suit until October 15, 2008. The time between these two events approaches the 244-day limit of the equipment. Plaintiffs made no effort to seek retention of the recorded calls prior to their deletion. Andersen’s and Holm’s Fifth Amendment claims fail.
4. Sixth Amendment Andersen and Holm argue that the recording and monitoring of their attorney-client phone calls violates their Sixth Amendment right to counsel. 1st Am. Compl. ¶¶ 90-93. To raise
21

a successful § 1983 claim for the violation of the Sixth Amendment, Plaintiffs must demonstrate that there was an intrusion into the attorney-client communication and that there was some prejudice to them. Weatherford v. Bursey, 429 U.S. 545, 558 (1977). In Weatherford, the Court found no § 1983 violation when an undercover law enforcement officer participated in a meeting between the defendant and his attorney. Id. at 560. The Court found that there was no tainted evidence, no communication of defense strategy to the prosecution, and no purposeful intrusion into the defendant’s rights. Id. Thus, there was no violation of the Sixth Amendment. Id.
In this case, there is no evidence that any officer listened to phone calls between Plaintiffs after the call was identified as being between an attorney and client. Baumann Dep. at 68-69; Omnibus Hr’g Trans. at 126, 138. Andersen and Holm were not prejudiced by the recording and monitoring of their phone calls as no information overheard in the phone conversations was ever used against them. These circumstances mirror those in United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla. 1991). In Noriega, the jail holding Noriega had a procedure through which Noriega could make a non-monitored call to his attorney, but there was evidence that Noriega was unaware of the procedure. Id. at 1485-86. Noriega made a monitored call and law enforcement officers overheard conversations between Noriega and his attorney. Id. The Noriega court found that the intrusion was unintentional and there was no prejudice against Noriega because the substance of the calls was not used against him. Id. at 1489. Accordingly, the court dismissed the § 1983 claim finding no violation of the Sixth Amendment. Id. Here, too, because there was no intentional intrusion and no prejudice to Andersen and Holm, summary judgment is appropriate for Defendants on the Sixth Amendment claim.
5. Fifth and Fourteenth Due Process
22

Andersen and Holm allege that the recording and monitoring of their attorney-client phone calls was a substantive violation of their Fifth Amendment Due Process rights as incorporated against Defendants through the Fourteenth Amendment. 1st Am. Compl. ¶¶ 94-95. “The standard for evaluating a substantive due process claim is whether the alleged behavior of the governmental officer is so egregious, so outrageous, that it may be fairly said to shock the contemporary conscience.” Cavataio v. City of Bella Villa, 570 F.3d 1015, 1022 (8th Cir. 2009).
Plaintiffs cite several cases in which courts have expressed concern and condemnation when attorney-client communications have been monitored by law enforcement. The majority of these cases, however, involved a situation in which the defendant was prejudiced by the conduct of law enforcement. See State v. Sugar, 417 A.2d 474 (N.J. 1980); Matter of Kozak, 256 N.W.2d 717 (S.D. 1977); Cody v. Weber, 256 F.3d 764 (8th Cir. 2001). In the other two cases cited by Plaintiffs, the defendants brought claims alleging a Sixth Amendment violation of the right to counsel and were decided before the prejudice requirement was articulated in Weatherford. See Fajeriak v. State, 520 P.2d 795 (Alaska 1974); Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951). Because neither Andersen nor Holm were prejudiced by any monitoring of their attorney-client phone calls and there is no evidence that the monitored conversations were deliberately overheard by law enforcement rather than as a result of a glitch in the process of adding phone numbers to the (do not intercept) List, Defendants’ behavior does not “shock the conscience,” and, therefore, there is no substantive due process violation.
6. Federal Common Law Andersen and Holm allege that Defendants violated federal common law by denying them access to the recorded phone calls, which was favorable or material to their defense and/or
23

was exculpatory. 1st Am. Compl. ¶¶ 99-105. In Brady v. Maryland, 373 U.S. 83 (1963), “the Supreme Court held that due process requires the government to disclose to the defense all evidence favorable to the accused.” United States v. Vieth, 397 F.3d 615, 619 (8th Cir. 2005). “To find a Brady violation, evidence must be material and exculpatory and have been suppressed by the government.” Id. There is no evidence in the case at bar the government suppressed any recordings that were material or exculpatory. Additionally, because Plaintiffs were parties to any phone call, they would be aware of any material or exculpatory information disclosed and could direct the Court to such evidence. They have failed to do so. There is no violation of federal common law.
7. Minnesota Constitutional Violations Andersen and Holm allege violations of Article I, Sections 6, 7, and 10 of the Minnesota Constitution. 1st Am. Compl. ¶¶ 79-83, 90-95. Their due process claims under Article I, Section 7 fail because the due process protections under the federal and Minnesota constitutions are co-extensive. Sartori v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988). Because they cannot state a claim under the federal Due Process Clause, they cannot state a claim under the state Due Process Clause. Additionally, Minnesota courts have not recognized a private right of action for a violation of the Article I, Section 7 of the Minnesota Constitution. See Oehrleins & Sons & Daughters, Inc. v. Hennepin County, 922 F. Supp. 1396, 1400 (D. Minn. 1996) (citing Bird v. State Dep’t of Pub. Safety, 375 N.W.2d 36, 40 (Minn. Ct. App. 1985)), reversed on other grounds 115 F.3d 1372 (8th Cir. 1997); see also Thomsen v. Ross, 368 F. Supp. 2d 961, 975 (D. Minn. 2005) (“Minnesota has not enacted a statute equivalent to § 1983, although Minnesota courts have recognized direct causes of action for violating certain sections of the Minnesota
24

Constitution.”). Moreover, in the event that the Minnesota courts were to recognize such a right, the Court believes the Minnesota courts would analyze that right similarly to the analysis of the Sixth Amendment right. See Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991) (incorporating the Sixth Amendment analysis of when the right to an attorney attaches for purposes of the parallel right provided by state law); see also Butala v. State, 664 N.W.2d 333, 344 (Minn. 2003) (recognizing the similarities between the right to counsel under the Sixth Amendment and the parallel right under Article I, Section 7). Because there is no Sixth Amendment violation, there is no corresponding Article I, Section 7 violation. Finally, Andersen’s and Holm’s unreasonable search claims under the Minnesota Constitution fail because Minnesota does not recognize a private cause of action under Article I, Section 10. See Guite v. Wright, 976 F. Supp. 866, 871 (D. Minn. 1997); see also Luckes v. Hennepin County, No. 03-31111, 2004 WL 1683145, at *4 (D. Minn. July 28, 2004); Goldberg v. Hennepin County, No. 03-3110, 2004 WL 1386154, at *3 (D. Minn. June 18, 2004). Accordingly, none of Plaintiffs’ claims under the Minnesota Constitution survive summary judgment.
8. Minn. Stat. § 481.10, Subd. 2 Holm alleges Defendants violated Minn Stat. § 481.10, subd. 2, by denying his right to a private and confidential phone call to his attorney. 1st Am. Compl. ¶¶ 106-08. Section 481.10, subd. 2 provides that when a defendant is restrained by law enforcement, the state “shall provide private telephone access to any attorney retained by or on behalf of the person restrained, or whom the restrained person may desire to consult at no charge to the attorney or to the person restrained.” The Minnesota Court of Appeals has found that the proper remedy for a violation of § 481.10, subd. 2 is the suppression of any statements overheard by the police. Koester v.
25

Commissioner of Pub. Safety, 438, N.W.2d 725, 727 (Minn. Ct. App. 1989); see also Sherbrooke v. City of Pelican Rapids, No. 05-671, 2006 WL 3227783, at *13-14 (D. Minn. Nov. 7, 2006) (overruled on other grounds). Suppression is not a remedy since this is a civil action for legal and equitable relief. No other remedy has been recognized by the Minnesota courts. Accordingly, Holm’s claim under Minn Stat. § 481.10, subd. 2 is dismissed.
9. Minnesota Common Law Plaintiffs assert claims under Minnesota common law for the tort of intrusion upon seclusion. 1st Am. Compl. ¶¶ 112-18. Under Minnesota law, the tort of intrusion upon seclusion has three elements: “(a) an intrusion; (b) that is highly offensive; and (c) into some matter in which a person has a legitimate expectation of privacy.” Swarthout, 632 N.W.2d at 744. The recording of Plaintiffs attorney-client calls may be an intrusion into a matter in which there is a legitimate expectation of privacy, but the intrusion was not highly offensive as a matter of law. The reasonable person standard is used to determine whether an intrusion is highly offensive and becomes a question of law when a reasonable person could only draw one conclusion based on the evidence. Id. at 745. While the Minnesota courts have yet to fully delineate the boundaries of the tort of intrusion into seclusion, the Court does not believe that a reasonable person could conclude that the limited monitoring of the phone calls in this instance was highly offensive. The standard appears to be analogous to the “shock the conscience” analysis employed in substantive Due Process claims. The evidence shows that Defendants did not deliberately record the attorney-client calls but rather that any recording was inadvertent and the result of a breakdown in the process through which an inmate could secure a private phone call. Moreover, the record indicates that Defendants ceased listening to the calls when it became
26

evident that the calls were between an attorney and client. 10. Wiretap Statutes Plaintiffs' final two claims are that Defendants violated the federal and state wiretap
statutes, respectively, 18 U.S.C. §§ 2510-22 and Minn Stat. § 626A.02, by recording and monitoring their attorney-client phone calls without their consent. 1st Am. Compl. ¶¶ 96-98, 109-11. The parties have filed cross-motions for summary judgment on these claims. The federal and state wiretap statutes are nearly identical. Wagner v. Wagner, 64 F. Supp. 2d 895, 899 (D. Minn. 1999) (citing Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 406 (Minn. Ct. App. 1995)). Both statutes provide a civil remedy for individuals whose communications are intercepted. Compare 18 U.S.C. § 2520 with Minn. Stat. § 626A.02, subd. 5.6 Pursuant to 18 U.S.C. § 2511(1)(a), anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be subject to suit as provided in subsection (5).” Subsection 5 creates a civil cause of action for any violation of the statute. 18 U.S.C. § 2520(a).
Defendants argue that two exceptions apply in this case. The first arises under the definition of “electronic, mechanical, or other device,” which excludes “any equipment or facility used “by an investigative or law enforcement officer in the ordinary course of his duties.” 18 U.S.C. § 2510(5)(a)(ii). Defendants argue that it is standard law enforcement practice to monitor inmate calls. See Lanza v. State of New York, 370 U.S. 139, 143 (1962). While the Court agrees that the ordinary course of a law enforcement officer’s duties include, in the abstract, the monitoring of inmate communications, the monitoring of an inmate’s phone call
6 Because the statutes are virtually identical, the Court will analyze both types of claims under the federal wiretap statute.
27

with his attorney is not in the ordinary course of duties. Such communications are constitutionally protected, and, on this record, there is nothing to support a showing that monitoring the specific type of communications that are the subject of this action would serve a legitimate law enforcement purpose. For this reason, the exception does not apply.
The second exception under the statute provides that “[i]t shall not be unlawful under this chapter for a person acting under color of state law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.” 18 U.S.C. § 2511(2)(c). Other courts that have addressed the issue have held that express or implied consent to having a call monitored by the prison falls within the § 2511(2)(c) exception. United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000); Gilday v. Dubois, 124 F.3d 277, 298 (1st Cir. 1997). In this case, however, there was no express consent to monitoring inmate attorney-client phone calls. Plaintiffs did not sign a form acknowledging consent. See Footman, 215 F.3d at 155. Nor, taking the evidence in the light most favorable to Plaintiffs, can consent be implied. As noted in the Fourth Amendment analysis, see supra III.C.2, there is an unresolved question as to whether Andersen and Holm consented to monitoring. This fact question precludes both Plaintiffs’ and Defendants’ Motions for Summary Judgment on the claims under the wiretapping statutes.
IV. CONCLUSION Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that: 1. Defendants Becker County, Tim Gordon, and Joseph H. McArthur’s Motion for
Summary Judgment [Docket No. 38] is GRANTED IN PART and DENIED IN
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PART; 2. Plaintiffs Kenneth E. Andersen, Dell D. Holm, and William K. Bulmer, II’s
Motion for Summary Judgment on Counts VI, VIII, and IX [Docket No. 47] is DENIED; and 3. Counts I, II, III, IV, V, VII, VIII, X, XI of the First Amended Complaint [Docket No. 3] are DISMISSED.7
BY THE COURT:

Dated: September 28, 2009.

s/Ann D. Montgomery ANN D. MONTGOMERY U.S. DISTRICT JUDGE

7 For clarity, the only surviving claims are Count VI and Count IX. 29

 
 Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
 
U.S. District Court  District of Minnesota (DMN)  CIVIL DOCKET FOR CASE #: 0:08-cv-05687-ADM-RLE 
    
Andersen et al v. Becker, The County of et al 

Date Filed:  Nature of suit:  Assigned to:  Cause:  Date terminated:  Jurisdiction:  Jury demand:  Referred to: 

Oct. 15, 2008  440 Civil Rights: Other  Judge Ann D. Montgomery 42:1981 Civil Rights  Jan. 12, 2010  Federal Question  Plaintiff  Chief Mag. Judge Raymond L. Erickson 

 
          

 
        
Parties and Attorneys 
 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket

Plaintiff

Attorneys and Firms

Kenneth E Andersen

Daniel C Bryden

On behalf of themselves and all others similarly situated

Minnesota Attorney General's Office-Ste

1200

445 Minnesota St Ste 1200

St Paul, MN 55101

(651) 757-1478

Fax: (651) 296-7438

dan.bryden@ag.state.mn.us

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

TERMINATED: 10/23/2009

Jeffrey A Abrahamson

631 Arcade St

St Paul, MN 55106

abra0095@umn.edu

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

TERMINATED: 10/23/2009

Mara R Thompson

4585 Weston Lane North

Plymouth, MN 55446

(763) 577-0679

thompson.mara@comcast.net

LEAD ATTORNEY

ATTORNEY TO BE NOTICED

Attorney at Law

TERMINATED: 10/23/2009

Bryce M Miller

Halunen & Associates

1650 IDS Center

80 South Eighth Street

Minneapolis, MN 55402

(612) 605-4098

Fax: (612) 605-4099

miller@halunenlaw.com

ATTORNEY TO BE NOTICED

Steven M Sprenger

Sprenger & Lang, PLLC

1400 Eye St NW Ste 500

Washington, DC 20005

(202) 772-1160

Fax: (202) 332-6652

ssprenger@sprengerlang.com

PRO HAC VICE

ATTORNEY TO BE NOTICED

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket

Plaintiff William K Bulmer, II On behalf of themselves and all others similarly situated

Attorneys and Firms Daniel C Bryden (See above for address) TERMINATED: 10/23/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED Jeffrey A Abrahamson (See above for address) TERMINATED: 10/23/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED Mara R Thompson (See above for address) TERMINATED: 10/23/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED Bryce M Miller (See above for address) ATTORNEY TO BE NOTICED Steven M Sprenger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Dell D. Holm on behalf of themselves and all other similarly situated

Attorneys and Firms Daniel C Bryden (See above for address) TERMINATED: 10/23/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED Jeffrey A Abrahamson (See above for address) TERMINATED: 10/23/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED Mara R Thompson (See above for address) TERMINATED: 10/23/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED Bryce M Miller (See above for address) ATTORNEY TO BE NOTICED Steven M Sprenger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant Becker, The County of Minnesota

Attorneys and Firms
Jon K Iverson Iverson Reuvers, LLC 9321 Ensign Ave S Bloomington, MN 55438 (952) 548-7204 Fax: (952) 548-7210 jiverson@iversonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan M Tindal Iverson Reuvers, LLC 9321 Ensign Ave S Bloomington, MN 55438 (952) 548-7200 Fax: (952) 946-1501 stindal@iversonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrea B Wing Iverson Reuvers 9321 Ensign Ave S Bloomington, MN 55438 (952) 548-7207 Fax: (952) 548-7210 awing@iversonlaw.com ATTORNEY TO BE NOTICED

Defendant Tim Gordon in his capacity as Sheriff of Becker County

Attorneys and Firms Jon K Iverson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Susan M Tindal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Andrea B Wing (See above for address) ATTORNEY TO BE NOTICED

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
ATTORNEY TO BE NOTICED

Defendant Joseph H McArthur also known as: Joseph H McArthuer

Attorneys and Firms Jon K Iverson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Susan M Tindal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Andrea B Wing (See above for address) ATTORNEY TO BE NOTICED

   
  
   
Req # 1

Docket Proceedings

Reverse  Proceedings

Filed

# Docket Text

Oct. 15, 2008   1   COMPLAINT against all defendants ( Filing fee $ 350  receipt number 40027634.) assigned to Judge Ann D  Montgomery per Sixth Division Civil Rights List and  referred to Magistrate Judge Raymond L Erickson,  filed by Kenneth E Andersen, William K Bulmer, II.  (Attachments: # 1 Complaint Part 2, # 2 Civil Cover  Sheet) (kt) (Entered: 10/16/2008) 

2

Oct. 15, 2008      Summons Issued as to Becker, The County of, Tim 

Gordon, Joseph H McArthuer. (kt) (Entered: 

10/16/2008) 

3

Oct. 24, 2008   2   NOTICE of Withdrawal as Attorney Steven M. 

Sprenger (Thompson, Mara) (Entered: 10/24/2008) 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket

4

Oct. 28, 2008   3   AMENDED COMPLAINT against all defendants, filed 

by Kenneth E Andersen, William K Bulmer, II. 

(Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 

Exhibit(s) 3, # 4 Certificate of Service) (Thompson, 

Mara) (Entered: 10/28/2008) 

5

Oct. 29, 2008   4   MOTION for Temporary Restraining Order by Kenneth 

E Andersen, Dell D. Holm, William K Bulmer, II. 

(Thompson, Mara) (Entered: 10/29/2008) 

6

Oct. 29, 2008   5   NOTICE OF HEARING ON MOTION (Thompson, 

Mara) (Entered: 10/29/2008) 

7

Oct. 29, 2008   6   MEMORANDUM in Support re 4 MOTION for 

Temporary Restraining Order filed by Kenneth E 

Andersen, Dell D. Holm, William K Bulmer, II. 

(Attachments: # 1 LR7.1 Word Count Compliance 

Certificate)(Thompson, Mara) (Entered: 10/29/2008) 

8

Oct. 29, 2008   7   AFFIDAVIT of William Bulmer, II in SUPPORT OF 4 

MOTION for Temporary Restraining Order filed by all 

plaintiffs. (Thompson, Mara) (Entered: 10/29/2008) 

9

Oct. 29, 2008   8   AFFIDAVIT of Rory P. Durkin in SUPPORT OF 4 

MOTION for Temporary Restraining Order filed by all 

plaintiffs. (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 

2)(Thompson, Mara) (Entered: 10/29/2008) 

10

Oct. 29, 2008   9   AFFIDAVIT of Jeffrey A. Abrahamson in SUPPORT 

OF 4 MOTION for Temporary Restraining Order filed 

by all plaintiffs. (Attachments: # 1 Exhibit(s) 

A)(Thompson, Mara) (Entered: 10/29/2008) 

11

Oct. 29, 2008   10   CERTIFICATE OF SERVICE by Kenneth E Andersen, 

Dell D. Holm, William K Bulmer, II re 6 Memorandum 

in Support of Motion, 8 Affidavit in Support of Motion, 7 

Affidavit in Support of Motion, 5 Notice of Hearing on 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
Motion, 9 Affidavit in Support of Motion, 4 MOTION for  Temporary Restraining Order (Thompson, Mara)  (Entered: 10/29/2008) 

12

Oct. 31, 2008   11   NOTICE of Appearance by Jon K Iverson on behalf of 

Becker, The County of, Tim Gordon, Joseph H 

McArthuer (Iverson, Jon) (Entered: 10/31/2008) 

13

Oct. 31, 2008   12   NOTICE of Appearance by Susan M Tindal on behalf 

of Becker, The County of, Tim Gordon, Joseph H 

McArthuer (*CERT. OF SVC. FILED IN ERROR, WILL 

RE-FILE CERTIFICATE OF SERVICE ONLY. 

(Attachments: # 1 Certificate of Service)(Tindal, 

Susan) Modified text (JME) (Entered: 10/31/2008) 

14

Oct. 31, 2008   13   CERTIFICATE OF SERVICE by Becker, The County 

of, Tim Gordon, Joseph H McArthuer re 11 Notice of 

Appearance, 12 Notice of Appearance, (Tindal, Susan) 

(Entered: 10/31/2008) 

15

Nov. 05, 2008   14   AFFIDAVIT of Service by Kenneth E Andersen, Dell D. 

Holm, William K Bulmer, II re 6 Memorandum in 

Support of Motion, 8 Affidavit in Support of Motion, 7 

Affidavit in Support of Motion, 5 Notice of Hearing on 

Motion, 9 Affidavit in Support of Motion, 10 Certificate 

of Service, 4 MOTION for Temporary Restraining 

Order (Thompson, Mara) (Entered: 11/05/2008) 

16

Nov. 11, 2008   15   WAIVER OF SERVICE Returned Executed filed by 

Kenneth E Andersen, Dell D. Holm, William K Bulmer, 

II. Becker, The County of waiver sent on 10/15/2008, 

answer due 12/15/2008; Tim Gordon waiver sent on 

10/15/2008, answer due 12/15/2008; Joseph H 

McArthuer waiver sent on 10/15/2008, answer due 

12/15/2008. (Thompson, Mara) (Entered: 11/11/2008) 

17

Nov. 11, 2008   16   CERTIFICATE OF SERVICE by Kenneth E Andersen, 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
Dell D. Holm, William K Bulmer, II re 15 Waiver of  Service Executed, (Thompson, Mara) (Entered:  11/11/2008) 

18

Nov. 20, 2008   17   NOTICE of Appearance by Andrea B Wing on behalf 

of all defendants (Attachments: # 1 Certificate of 

Service)(Wing, Andrea) (Entered: 11/20/2008) 

19

Dec. 09, 2008   18   AMENDED NOTICE of Hearing on Motion 4 MOTION 

for Temporary Restraining Order : Motion Hearing set 

for 12/12/2008 02:00 PM in Minneapolis - Courtroom 

13W before Judge Ann D. Montgomery. (Attachments: 

# 1 Certificate of Service)(Thompson, Mara) (Entered: 

12/09/2008) 

20

Dec. 10, 2008   19   MEMORANDUM in Support re 4 MOTION for 

Temporary Restraining Order Supplemental filed by all 

plaintiffs. (Attachments: # 1 LR7.1 Word Count 

Compliance Certificate)(Thompson, Mara) (Entered: 

12/10/2008) 

21

Dec. 10, 2008   20   Declaration of Dan Bryden in Support of 19 

Memorandum in Support of Motion filed by all plaintiffs. 

(Thompson, Mara) (Entered: 12/10/2008) 

22

Dec. 10, 2008   21   EXHIBIT re 20 Declaration in Support Exhibit A Parts 1 

& 2 by all plaintiffs filed by all plaintiffs. (Attachments: # 

1 Exhibit(s) Part 2)(Thompson, Mara) (Entered: 

12/10/2008) 

23

Dec. 10, 2008   22   CERTIFICATE OF SERVICE by Kenneth E Andersen, 

Dell D. Holm, William K Bulmer, II re 19 Memorandum 

in Support of Motion, 21 Exhibit, 20 Declaration in 

Support (Thompson, Mara) (Entered: 12/10/2008) 

24

Dec. 11, 2008   23   ANSWER to Amended Complaint by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
(Attachments: # 1 Exhibit(s) 1, # 2 Certificate of  Service) (Tindal, Susan) (Entered: 12/11/2008) 

25

Dec. 11, 2008   24   MEMORANDUM in Opposition re 4 MOTION for 

Temporary Restraining Order filed by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. 

(Attachments: # 1 LR7.1 Word Count Compliance 

Certificate)(Tindal, Susan) (Entered: 12/11/2008) 

26

Dec. 11, 2008   25   AFFIDAVIT of Tim Gordon in OPPOSITION TO 4 

MOTION for Temporary Restraining Order filed by 

Becker, The County of, Tim Gordon, Joseph H 

McArthuer. (Attachments: # 1 Exhibit(s) 1)(Tindal, 

Susan) (Entered: 12/11/2008) 

27

Dec. 11, 2008   26   AFFIDAVIT of Susan M. Tindal in OPPOSITION TO 4 

MOTION for Temporary Restraining Order filed by 

Becker, The County of, Tim Gordon, Joseph H 

McArthuer. (Attachments: # 1 Exhibit(s) 1, # 2 

Exhibit(s) 2)(Tindal, Susan) (Entered: 12/11/2008) 

28

Dec. 11, 2008   27   CERTIFICATE OF SERVICE by Becker, The County 

of, Tim Gordon, Joseph H McArthuer re 24 

Memorandum in Opposition to Motion, 25 Affidavit in 

Opposition to Motion, 26 Affidavit in Opposition to 

Motion (Tindal, Susan) (Entered: 12/11/2008) 

29

Dec. 12, 2008   28   TEXT ENTRY for proceedings held before Judge Ann 

D. Montgomery: Motion Hearing held on 12/12/2008 re 

4 MOTION for Temporary Restraining Order filed by 

Kenneth E Andersen, Dell D. Holm, William K Bulmer, 

II. This motion is denied and an order will be issued. 

(Court Reporter Maria Weinbeck) (GS) (Entered: 

12/12/2008) 

30

Dec. 12, 2008   29   ORDER denying 4 Plaintiff Kenneth Andersen's Motion 

for TRO (Written Opinion). Signed by Judge Ann D. 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
Montgomery on 12/12/2008. (TLU) (Entered:  12/12/2008) 

31

Jan. 14, 2009   30   PRETRIAL NOTICE AND ORDER: Pretrial 

Conference set for 2/9/2009 at 11:00 AM in Chambers, 

Room No. 412 before Chief Mag. Judge Raymond L. 

Erickson. Signed by Chief Mag. Judge Raymond L. 

Erickson on 1/14/09. (Attachments: # 1 Consent 

Form)(kt) (Entered: 01/14/2009) 

32

Feb. 04, 2009   31   STATEMENT OF CASE as to Becker, The County of, 

Tim Gordon, Joseph H McArthuer. (Attachments: # 1 

Certificate of Service)(Tindal, Susan) (Entered: 

02/04/2009) 

33

Feb. 04, 2009   32   STATEMENT OF CASE as to Kenneth E Andersen, 

Dell D. Holm, William K Bulmer, II. (Attachments: # 1 

Certificate of Service)(Thompson, Mara) (Entered: 

02/04/2009) 

34

Feb. 04, 2009   33   REPORT of Rule 26(f) Planning Meeting by all Parties. 

(Attachments: # 1 Certificate of Service)(Thompson, 

Mara) Modified on 2/5/2009 (jz). (Entered: 02/04/2009) 

35

Feb. 09, 2009   34   Minute Entry for proceedings held before Chief Mag. 

Judge Raymond L. Erickson: Initial Pretrial Conference 

held on 2/9/2009. Dates discussed for the progression 

of the case. Written Pretrial Order will be issued. (jz) 

(Entered: 02/09/2009) 

36

Feb. 09, 2009   35   PRETRIAL ORDER: Amended Pleadings due by 

4/1/2009. Discovery due by 6/15/2009. Motions (non-

disp) due 7/15/2009. Motions (disp) due by 8/15/2009. 

Ready for trial due by 10/15/2009. Signed by Chief 

Mag. Judge Raymond L. Erickson on 02/09/09. (jz) 

(Entered: 02/09/2009) 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket

37

June 12, 2009   36   STIPULATION TO ALLOW PLAINTIFFS TO TAKE 

DEPOSITIONS by all parties. (Attachments: # 1 

Certificate of Service)(Thompson, Mara) Modified text 

and filers on 6/15/2009 (jz). (Entered: 06/12/2009) 

38

June 15, 2009   37   ORDER ALLOWING PLAINTIFFS TO TAKE THE 

DEPOSITIONS OF JENNIFER SOYING AND PAULA 

PETERSON 1. That the Joint Stipulation Docket No. 

36 is APPROVED. 2. That, pursuant to the Parties' 

Joint Stipulation, Plaintiffs may take the depositions of 

Jennifer Soyring and Paula Peterson after June 15, 

2009 but by June 22, 2009. 3. That no other dates set 

forth in the Court's Pretrial Order dated February 9, 

2009, are affected by allowing these depositions. 

Signed by Chief Mag. Judge Raymond L. Erickson on 

06/15/2009. (jz) (Entered: 06/15/2009) 

39

June 30, 2009   38   MOTION for Summary Judgment by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. (Tindal, 

Susan) (Entered: 06/30/2009) 

40

June 30, 2009   39   NOTICE OF HEARING ON MOTION 38 MOTION for 

Summary Judgment : Motion Hearing set for 8/14/2009 

09:00 AM in Courtroom 13W (MPLS) before Judge 

Ann D. Montgomery. (Tindal, Susan) (Entered: 

06/30/2009) 

41

June 30, 2009   40   MEMORANDUM in Support re 38 MOTION for 

Summary Judgment filed by Becker, The County of, 

Tim Gordon, Joseph H McArthuer. (Attachments: # 1 

LR7.1 Word Count Compliance Certificate)(Tindal, 

Susan) (Entered: 06/30/2009) 

42

June 30, 2009   41   AFFIDAVIT of Daniel Baumann in SUPPORT OF 38 

MOTION for Summary Judgment filed by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. 

(Attachments: # 1 Exhibit(s) A)(Tindal, Susan) 

(Entered: 06/30/2009) 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket

43

June 30, 2009   42   AFFIDAVIT of Brendan Gilmore in SUPPORT OF 38 

MOTION for Summary Judgment filed by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. 

(Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 

Exhibit(s) 3, # 4 Exhibit(s) 4)(Tindal, Susan) (Entered: 

06/30/2009) 

44

June 30, 2009   43   AFFIDAVIT of Randy Hodgson in SUPPORT OF 38 

MOTION for Summary Judgment filed by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. 

(Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B)(Tindal, 

Susan) (Entered: 06/30/2009) 

45

June 30, 2009   44   AFFIDAVIT of Joe McArthur in SUPPORT OF 38 

MOTION for Summary Judgment filed by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. 

(Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2)(Tindal, 

Susan) (Entered: 06/30/2009) 

46

June 30, 2009   45   AFFIDAVIT of Susan M. Tindal in SUPPORT OF 38 

MOTION for Summary Judgment filed by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. 

(Attachments: # 1 Exhibit(s) A, # 2 Exhibit(s) B, # 3 

Exhibit(s) C, # 4 Exhibit(s) D, # 5 Exhibit(s) E, # 6 

Exhibit(s) F, # 7 Exhibit(s) G, # 8 Exhibit(s) H, # 9 

Exhibit(s) I, # 10 Exhibit(s) J, # 11 Exhibit(s) K, # 12 

Exhibit(s) L, # 13 Exhibit(s) M, # 14 Exhibit(s) N, # 15 

Exhibit(s) O, # 16 Exhibit(s) P, # 17 Exhibit(s) Q, # 18 

Exhibit(s) R, # 19 Exhibit(s) S, # 20 Exhibit(s) T, # 21 

Exhibit(s) U)(Tindal, Susan) (Entered: 06/30/2009) 

47

June 30, 2009   46   CERTIFICATE OF SERVICE by Becker, The County 

of, Tim Gordon, Joseph H McArthuer re 40 

Memorandum in Support of Motion, 42 Affidavit in 

Support of Motion, 41 Affidavit in Support of Motion, 39 

Notice of Hearing on Motion, 45 Affidavit in Support of 

Motion, 44 Affidavit in Support of Motion, 43 Affidavit in 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
Support of Motion, 38 MOTION for Summary  Judgment (Tindal, Susan) Modified punctuation on  7/1/2009 (jz). (Entered: 06/30/2009) 

48

July 01, 2009   47   MOTION for Summary Judgment on Counts VI, VIII, 

and IX of Plaintiffs' First Amended Complaint by 

Kenneth E Andersen, Dell D. Holm, William K Bulmer, 

II. (Thompson, Mara) (Entered: 07/01/2009) 

49

July 01, 2009   48   NOTICE OF HEARING ON MOTION 47 MOTION for 

Summary Judgment on Counts VI, VIII, and IX of 

Plaintiffs' First Amended Complaint : Motion Hearing 

set for 8/14/2009 09:00 AM in Courtroom 13W (MPLS) 

before Judge Ann D. Montgomery. (Thompson, Mara) 

(Entered: 07/01/2009) 

50

July 01, 2009   49   MEMORANDUM in Support re 47 MOTION for 

Summary Judgment on Counts VI, VIII, and IX of 

Plaintiffs' First Amended Complaint filed by Kenneth E 

Andersen, Dell D. Holm, William K Bulmer, II. 

(Thompson, Mara) (Entered: 07/01/2009) 

51

July 01, 2009   50   LR7.1 WORD COUNT COMPLIANCE CERTIFICATE 

by all plaintiffs re 49 Memorandum in Support of 

Motion filed by all plaintiffs. (Thompson, Mara) 

(Entered: 07/01/2009) 

52

July 01, 2009   51   Declaration of Jeffrey A. Abrahamson in Support of 47 

MOTION for Summary Judgment on Counts VI, VIII, 

and IX of Plaintiffs' First Amended Complaint filed by 

all plaintiffs. (Attachments: # 1 Exhibit(s) Exhibit 

A)(Thompson, Mara) (Entered: 07/01/2009) 

53

July 01, 2009   52   CERTIFICATE OF SERVICE by Kenneth E Andersen, 

Dell D. Holm, William K Bulmer, II re 47 MOTION for 

Summary Judgment on Counts VI, VIII, and IX of 

Plaintiffs' First Amended Complaint, 48 Notice of 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
Hearing on Motion, 51 Declaration in Support, 50  LR7.1 Word Count Compliance Certificate, 49  Memorandum in Support of Motion. (Thompson, Mara)  Modified punctuation on 7/6/2009 (jz). (Entered:  07/01/2009) 

54

July 23, 2009   53   MEMORANDUM in Opposition re 47 MOTION for 

Summary Judgment on Counts VI, VIII, and IX of 

Plaintiffs' First Amended Complaint filed by Becker, 

The County of, Tim Gordon, Joseph H McArthuer. 

(Tindal, Susan) (Entered: 07/23/2009) 

55

July 23, 2009   54   LR7.1 WORD COUNT COMPLIANCE CERTIFICATE 

by Becker, The County of, Tim Gordon, Joseph H 

McArthuer re 53 Memorandum in Opposition to Motion 

filed by Becker, The County of, Tim Gordon, Joseph H 

McArthuer. (Tindal, Susan) (Entered: 07/23/2009) 

56

July 23, 2009   55   CERTIFICATE OF SERVICE by Becker, The County 

of, Tim Gordon, Joseph H McArthuer re 53 

Memorandum in Opposition to Motion, 54 LR7.1 Word 

Count Compliance Certificate. (Tindal, Susan) 

Modified punctuation on 7/24/2009 (jz). (Entered: 

07/23/2009) 

57

July 27, 2009   56   MEMORANDUM in Opposition re 38 MOTION for 

Summary Judgment filed by Kenneth E Andersen, 

William K Bulmer, II, Dell D. Holm. (Attachments: # 1 

LR7.1 Word Count Compliance 

Certificate)(Abrahamson, Jeffrey) (Entered: 

07/27/2009) 

58

July 27, 2009   57   Declaration of Kenneth E. Andersen in Support of 56 

Memorandum in Opposition to Motion filed by Kenneth 

E Andersen, William K Bulmer, II, Dell D. Holm. 

(Abrahamson, Jeffrey) (Entered: 07/27/2009) 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket

59

July 27, 2009   58   Declaration of Dell D. Holm in Support of 56 

Memorandum in Opposition to Motion filed by Kenneth 

E Andersen, William K Bulmer, II, Dell D. Holm. 

(Abrahamson, Jeffrey) (Entered: 07/27/2009) 

60

July 27, 2009   59   Declaration of William K. Bulmer, II in Support of 56 

Memorandum in Opposition to Motion filed by Kenneth 

E Andersen, William K Bulmer, II, Dell D. Holm. 

(Abrahamson, Jeffrey) (Entered: 07/27/2009) 

61

July 27, 2009   60   Declaration of Jeffrey A. Abrahamson in Support of 56 

Memorandum in Opposition to Motion filed by Kenneth 

E Andersen, William K Bulmer, II, Dell D. Holm. 

(Attachments: # 1 Exhibit(s)A-L)(Abrahamson, Jeffrey) 

Modified text on 7/28/2009 (jz). (Entered: 07/27/2009) 

62

July 27, 2009   61   CERTIFICATE of Service by Kenneth E Andersen, 

William K Bulmer, II, Dell D. Holm re 56 Memorandum 

in Opposition to Motion, 57 Declaration in Support, 59 

Declaration in Support, 58 Declaration in Support, 60 

Declaration in Support. (Abrahamson, Jeffrey) 

Modified text on 7/28/2009 (jz). (Entered: 07/27/2009) 

63

Aug. 03, 2009   62   REPLY re 56 Memorandum in Opposition to Motion, 

40 Memorandum in Support of Motion filed by Becker, 

The County of, Tim Gordon, Joseph H McArthuer. 

(Attachments: # 1 LR7.1 Word Count Compliance 

Certificate)(Tindal, Susan) (Entered: 08/03/2009) 

64

Aug. 03, 2009   63   AFFIDAVIT of Tim Gordon in SUPPORT OF 38 

MOTION for Summary Judgment filed by Becker, The 

County of, Tim Gordon, Joseph H McArthuer. (Tindal, 

Susan) (Entered: 08/03/2009) 

65

Aug. 03, 2009   64   CERTIFICATE OF SERVICE by Becker, The County 

of, Tim Gordon, Joseph H McArthuer re 63 Affidavit in 

Support of Motion, 62 Reply. (Tindal, Susan) Modified 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
text on 8/4/2009 (jz). (Entered: 08/03/2009) 

66

Aug. 03, 2009   65   REPLY to Response to Motion re 47 MOTION for 

Summary Judgment on Counts VI, VIII, and IX of 

Plaintiffs' First Amended Complaint filed by Kenneth E 

Andersen, William K Bulmer, II, Dell D. Holm. 

(Attachments: # 1 LR7.1 Word Count Compliance 

Certificate)(Abrahamson, Jeffrey) (Entered: 

08/03/2009) 

67

Aug. 03, 2009   66   CERTIFICATE OF SERVICE by Kenneth E Andersen, 

William K Bulmer, II, Dell D. Holm re 65 Reply to 

Response to Motion. (Abrahamson, Jeffrey) Modified 

text on 8/4/2009 (jz). (Entered: 08/03/2009) 

68

Aug. 14, 2009   67   TEXT ENTRY for proceedings held before Judge Ann 

D. Montgomery: Motion Hearing held on 8/14/2009 re 

47 MOTION for Summary Judgment on Counts VI, 

VIII, and IX of Plaintiffs' First Amended Complaint filed 

by Kenneth E Andersen, Dell D. Holm, William K 

Bulmer, II, 38 MOTION for Summary Judgment filed by 

Tim Gordon, Becker, The County of, Joseph H 

McArthuer. Motions taken under advisement. (Court 

Reporter Maria Weinbeck) (GS) (Entered: 08/14/2009) 

69

Sept. 28, 2009   68   MEMORANDUM OPINION AND ORDER granting in 

part and denying in part 38 Defendants' Motion for 

Summary Judgment; denying 47 Plaintiffs' Motion for 

Summary Judgment (Written Opinion). Signed by 

Judge Ann D. Montgomery on 09/28/2009. (TLU) 

(Entered: 09/28/2009) 

70

Oct. 22, 2009   69   NOTICE of Withdrawal as Attorney and Substitution of 

Counsel (Attachments: # 1 Certificate of 

Service)(Thompson, Mara) (Entered: 10/22/2009) 

71

Oct. 23, 2009   70   MOTION for Admission Pro Hac Vice for Steven M. 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
Sprenger. Filing fee $ 100, receipt number 08642220405 by Kenneth E Andersen, William K Bulmer, II,  Dell D. Holm. (Miller, Bryce) Modified on 10/23/2009  (MMC). (Entered: 10/23/2009) 

72

Oct. 23, 2009   71   MOTION for Permission for Non-Resident Bryce M. 

Miller to Serve as Local Counsel for Kenneth E 

Andersen, William K Bulmer, II, Dell D. Holm. (Miller, 

Bryce) Modified on 10/23/2009 (MMC). (Entered: 

10/23/2009) 

73

Oct. 23, 2009   72   CERTIFICATE OF SERVICE by Kenneth E Andersen, 

William K Bulmer, II, Dell D. Holm re 71 Exhibit, 70 

MOTION for Permission for a Non-Resident to Serve 

as Local Counsel. Filing fee $ 100, receipt number 

0864-2220405. (Miller, Bryce) (Entered: 10/23/2009) 

74

Oct. 23, 2009   73   ORDER granting 70 Motion for Admission Pro Hac 

Vice of Attorney Steven M. Sprenger for plaintiffs and 

71 Motion for Permission for Non-Resident Attorney 

Bryce M. Miller to Serve as Local Counsel for plaintiffs. 

Fee paid; receipt number 0864-2220405. Signed by 

Judge Ann D. Montgomery on 10/23/09. (MMC) 

(Entered: 10/23/2009) 

75

Nov. 12, 2009   74   SETTLEMENT CONFERENCE ORDER A Settlement 

Conference in the above-entitled matter is set for 

Monday, January 11, 2010, at 10:00 o'clock a.m., 

before ChiefMagistrate Judge Raymond L. Erickson, in 

Court Room No. 3, Gerald W. Heaney Federal Building 

and United States Courthouse and Customhouse, 515 

W. First St., Duluth, Minnesota. Signed by Chief Mag. 

Judge Raymond L. Erickson on 11/12/2009. (jz) 

(Entered: 11/12/2009) 

76

Dec. 02, 2009   75   JURY TRIAL NOTICE Jury Trial set for 1/25/2010 

08:45 AM in Courtroom 13W (MPLS) before Judge 

Ann D. Montgomery. (GS) (Entered: 12/02/2009) 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket

77

Jan. 04, 2010   76   MOTION for Writ of Habeas Corpus ad testificandum 

for Kenneth E. Andersen by Kenneth E Andersen. 

(Attachments: # 1 Certificate of Service)(Miller, Bryce) 

(Entered: 01/04/2010) 

78

Jan. 04, 2010   77   MOTION for Writ of Habeas Corpus ad testificandum 

for Dell D. Holm by Dell D. Holm. (Attachments: # 1 

Certificate of Service)(Miller, Bryce) (Entered: 

01/04/2010) 

79

Jan. 05, 2010   78   WRIT OF HABEAS CORPUS AD TESTIFICANDUM 

FOR DELL D. HOLM The Court issues this Writ of 

Habeas Corpus Ad Testificandum for Dell D. Holm. 

The Court orders the Minnesota Correctional Facility-

Rush City to release Dell D. Holm to the custody of the 

United States Marshal for the District of Minnesota and 

directs the United States Marshal for the District of 

Minnesota to produce Dell D. Holm in Court Room 

13W, United States Courthouse, 300 South Fourth 

Street, Minneapolis, Minnesota on January 25, 2010, 

at 8:45 a.m. and continuing for such time as 

necessary. Signed by Chief Mag. Judge Raymond L. 

Erickson on 01/05/2010. (jz) (Entered: 01/05/2010) 

80

Jan. 05, 2010      Writ of Habeas Corpus ad Prosequendum Issued as to 

Dell D. Holm for January 25, 2010 at 8:45 a.m. and 

continuing for such time as necessary. (jz) (Entered: 

01/05/2010) 

81

Jan. 05, 2010   79   WRIT OF HABEAS CORPUS AD TESTIFICANDUM 

FOR KENNETH E. ANDERSON The Court issues this 

Writ of Habeas Corpus Ad Testificandum for Kenneth 

E. Andersen. The Court orders the Minnesota 

Correctional Facility- Rush City to release Kenneth E. 

Andersen to the custody of the United States Marshal 

for the District of Minnesota and directs the United 

States Marshal for the District of Minnesota to produce 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
Kenneth E. Andersen in Court Room 13W, United  States Courthouse, 300 South Fourth Street,  Minneapolis, Minnesota on January 25, 2010, at 8:45  a.m. and continuing for such time as necessary.  Signed by Chief Mag. Judge Raymond L. Erickson on  01/05/2010. (jz) (Entered: 01/05/2010) 

82

Jan. 05, 2010      Writ of Habeas Corpus ad Prosequendum Issued as to 

Kenneth E. Andersen for January 25, 2010, at 8:45 

a.m. and continuing for such time as necessary. (jz) 

(Entered: 01/05/2010) 

83

Jan. 11, 2010   80   Minute Entry for proceedings held before Chief Mag. 

Judge Raymond L. Erickson: Settlement Conference 

held on 1/11/2010. Settlement reached. Terms stated 

on the record. (Digital Recording) (jz) (Entered: 

01/15/2010) 

84

May 04, 2010   81   NOTICE of Filing of Official Transcript. A total of 1 

transcript is associated with this filing. (TJW) (Entered: 

05/04/2010) 

85

May 04, 2010   82   TRANSCRIPT of Settlement Conference held on 

January 11, 2010 before Chief Mag. Judge Raymond 

L. Erickson. (8 pages). Court Reporter: Tim Willette (E-

mail: Tim_Willette@mnd.uscourts.gov. Telephone: 

(612) 664-5108). Redaction Request due 5/25/2010. 

Redacted Transcript Deadline set for 6/4/2010. 

Release of Transcript Restriction set for 8/2/2010. For 

information on redaction procedures, please review 

Local Rule 5.5. (TJW) (Entered: 05/04/2010) 

            
 

Andersen et al v. Becker, The County of et al, Docket No. 0:08‐cv‐05687 (D. Minn. Oct. 15, 2008), Court Docket
 

 
 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINESOTA
FOURTH DIVISION

Kenneth E. Andersen and Dell D. Holm, On behalf of themselves and )

all others similarly situated,

)

)

and

)

William K. Bulmer, II, On behalf of )

himself and all others similarly

)

situated,

)

Plaintif )

)

vs.

)

)

The County of Becker, Minnesota,

)

Tim Gordon, in his capacity as Sheriff )

of Becker County, and Joseph H.

)

McArhur, in his capacity as Captain )

in the Becker County Sheriff s

)

Departent,

)

)
Defendants. )

Case No. 08-CV-5687
FIRST AMENDED CLASS ACTION
COMPLAINT
JURY TRIAL DEMANDED

Plaintiffs Kenneth E. Andersen, Dell D. Holm and William K. Bulmer, II bring

this class action on behalf of themselves and all others similarly situated, and state as

follows:

I. INTRODUCTION

1. This class action for damages and injunctive relief is brought pursuant to

42 U.S.C. § 1983 for violations of the plaintiffs' rights, and those of the classes the

plaintiffs represent (collectively, "Plaintiffs"), under the First, Fourth, Fifth, Sixth and

Fourteenth Amendments to the United States Constitution; under Article I, Sections 6, 7

80136

and 10 of the Minnesota Constitution; pursuant to 18 U.S.C. § 2510, et seq., for violations of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III); for violations of Minnesota Statutes § § 481. 10 and 626A; and for violations of Plaintiffs'
rights under both federal and Minnesota common law.

2. Plaintiffs seek injunction of, and redress for, defendants' unlawful and
unconstitutional policy, custom and/or practice of recording privileged and confidential
telephone calls between attorneys and/or the attorneys' agents - including investigative agents - and their clients who have been and/or are detained and/or incarcerated in the Becker County Detention Facility ("Jail"). Plaintiffs also seek injunction of, and redress
for, defendants' unlawful and unconstitutional policy, custom and/or practice of

affirmatively informing attorneys/attorneys' agents and detainee

s/Inmate

s that

attorney/client telephone calls are not recorded via the Jail's Inmate Handbook and via

signs posted at the facility, when all such calls are recorded unless the attorney's

telephone number is placed on the Jail's "Do Not Record" list. Finally, Plaintiffs seek

injunction of, and redress for, defendants' failure to inform attorneys/attorneys' agents
and detainees/Inmates of either the Jail's internal procedure by which attorneys' landline telephone numbers may be placed on the "Do Not Record" list in order to arrange for privileged and confidential attorney/client telephone calls, or of the fact that it refuses to place the cellular phone numbers of attorneys or any phone numbers of attorneys' agents on the "Do Not Record" list.

2
80136

II. PARTIES
3. Plaintiff Kenneth E. Andersen ("Andersen") is an inmate currently
incarcerated in the Minnesota Correctional Facility located in Rush City, Minnesota.
Andersen was a detainee/Inmate at the Becker County Detention Facility from June 2007 to June 2008.
4. Plaintiff Dell. D. Holm ("Holm") is an inmate currently incarcerated in the
Becker County Detention Facility located in Detroit Lakes, Minnesota. Holm has been in custody in the Jail since May 3, 2008.
5. Plaintiff William K. Bulmer, II ("Bulmer") is an individual residing in
St. Louis Park, Minnesota. Bulmer is an attorney currently licensed to practice in, and in good standing with, the State of Minnesota. Bulmer practices in the area of criminal
defense and represented clients, including Andersen, who were detained/Incarcerated in the Becker County Detention Facility from June 2007 to January 2008. During Andersen's
incarceration at the Becker County Detention Facility, Bulmer contacted Andersen via
telephone to discuss privileged and confidential aspects of his/her case on a number of occasions.
6. Defendant Becker County is, and was at all relevant times herein, a political
entity charged with the control and supervision of all personnel of the Becker County Sheriffs Department and the Becker County Detention Facility.
3 80136

7. Defendant Tim Gordon ("Gordon") is, and was at all relevant times herein, the duly appointed and acting sheriff of Becker County. As such, Gordon is, and was, a duly appointed agent of Becker County and was authorized to enforce the law, and was
acting under the color of law at all times material to the allegations set forth in this Amended Complaint. All causes of action brought against Gordon are brought in his
official capacity as the sheriff of Becker County. 8. Defendant Joseph H. McArhur ("McArthur") is, and was at all relevant
times herein, a duly appointed and acting law enforcement officer in the Becker County Sheriff s Department. As such, McArhur is, and was, a duly appointed agent of Becker County and was authorized to enforce the law, and was acting under the color of law at all times material to the allegations set forth in this Amended Complaint. All causes of action brought against McArhur are brought in his official capacity as an officer of the Becker County Sheriff s Department. III. JURISDICTION
9. This Court has original jurisdiction under 28 U.S.C. § 1331 to hear the
claims arising under 42 U.S.C. § 1983 and 18 U.S.C. § 2510, et seq. 10. Because this Court has original jurisdiction over several of the claims and
the claims arising under state law are so related to the federal claims as to form part of
the same case or controversy, this Court has supplemental jurisdiction over those state
law claims pursuant to 28 U.S.C. § 1367. 1 1. Venue in the District of Minnesota is proper because defendant Becker
County is located in this District, the individually named defendants reside in and are
4
80136

employed in this District, and the unconstitutional and unlawful activities alleged herein occurred in this District.
iv. FACTUAL ALLEGATIONS A. Kenneth Andersen's Interaction with the Becker County Detention Facilty
12. On June 11, 2007, Andersen was arrested and detained in the Becker County Detention Facility. Upon arriving at the Jail, Andersen was provided with an
"Inmate Handbook" for the facility. A copy of the Inmate Handbook provided to
Andersen is attached hereto as Exhibit 1.
13. The Inmate Handbook sets forth the Jail's policy of monitoring and/or recording "all non-attorney/client privileged phone calls." Specifically, Section D under the heading "Jail Programs" is entitled "Telephones," and subsection D(3) states "Any non-attorney/client privileged phone calls made from Becker County Detention Facility will be monitored and/or recorded." See Exhibit 1, p. 9 (emphasis added).
14. The Inmate Handbook does not provide the detainee/Inmate with any information regarding how the Jail distinguishes between standard telephone calls which are subject to monitoring and/or recording - and attorney/client privileged and confidential calls which are not to be monitored and/or recorded.
15. Nor does the Inmate Handbook set forth - or even mention - the process by
which an attorney and/or detainee/Inmate is able to request and arrange for a private, privileged attorney/client telephone call.
5 80136

16. Neither Andersen nor his attorneys, including Bulmer, were informed that a process existed whereby an attorney and/or detainee/Inmate could request a privileged and confidential attorney/client telephone call.
17. In addition, after being admitted to the Jail, Andersen observed signs posted
near the telephones reiterating the Jail's telephone policy which was set forth in the Inmate Handbook: "All phone calls and messages to and from the Becker County Detention Facility are monitored and/or recorded. This includes the visiting booths.
Exceptions are phone calls made to an attorney." See Exhibit 2 attached hereto
(emphasis added).
18. Shortly after being brought to the Jail, Andersen retained attorney Rory
Durkin ("Durkin") to represent him. Durkin's law office is located in Anoka, Minnesota - approximately 200 miles from Detroit Lakes, Minnesota where Andersen was in custody in the Becker County Detention Facility.
19. Durkin began to investigate Andersen's case and hired investigator Glen Fladmark ("Fladmark") to assist with the investigation. Throughout the summer and early fall of 2007, both Durkin and Fladmark contacted Andersen at the Becker County Detention Facility by telephone regularly to discuss key aspects of the case - including
potential witnesses and exculpatory evidence - and to prepare Andersen's defense.
20. During this time, no one informed Durkin, Fladmark or Andersen that their
privileged attorney/client telephone calls were being monitored and/or recorded. Nor did anyone inform them that the Becker County Detention Facility had an internal policy
6
80136

whereby a request to the Jail was required to have a telephone number placed on the "Do Not Record" list in order to ensure the confidentiality of attorney/client telephone calls.
21. In the fall of 2007, Durkin, Bulmer and Andersen began to suspect that
their telephone calls and the telephone calls between Fladmark and Andersen were being listened to by members of Becker County law enforcement.
22. When Durkin and Andersen discussed their suspicions, Andersen informed Durkin that he learned that it was a "running joke" among the Becker County inmates that Becker County law enforcement listened to the inmates' attorney/client telephone
calls.
23. Based on the Inmate Handbook and the signs posted by the telephones in the Becker County Detention Facility, Andersen and Durkin believed that their
attorney/client telephone calls had been confidentiaL.
24. After hearing this startling and disturbing "joke," Andersen and Durkin
investigated the issue and discovered an even more alarming reality - the Becker County Detention Facility had in fact been monitoring and/or recording their attorney client telephone calls and the privileged calls between Andersen and Fladmark.
25. Only at this time, after Durkin, Bulmer, Fladmark and Andersen had been
communicating via telephone for over four months, did they learn of the Jail's internal policy regarding attorney/client telephone calls.
26. The Jail's policy is to monitor and/or record all detainee/Inmate telephone calls unless a detainee/Inmate or attorney specifically requests that certain telephone numbers be placed on the "Do Not Record" list. This was the first time that Durkin,
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Bulmer, Fladmark or Andersen had heard of

the "Do Not Record" list. This policy is not

set forth anywhere in the Inmate Handbook nor is it displayed anywhere in the JaiL.

Instead, it is an "unwritten" policy followed by the Becker County Detention Facility

personnel - but not disclosed to detainees/Inmates or attorneys.

27. Until mid-2007, to have a telephone number placed on the "Do Not
Record" list, a detainee/Inmate or attorney had to request that a specific number be

added to the list. In mid-2007, the process changed slightly due to some software
upgrades by the private company managing the Becker County Detention Facility telephone systems - Reliance Telephone Systems, Inc. ("Reliance").
28. Under the current procedures, a detainee/Inmate or attorney generally must call either Reliance or the Jail to request that specific telephone numbers be placed in the "Do Not Record" list. Once a request is made, Reliance personnel investigate whether the telephone number is an attorney number. If the Reliance personnel are satisfied that the number is a proper attorney telephone number, it is placed on the "Do Not Record" list. Reliance then places the number in a "free status" in its computer system and the

telephone number is blocked from being monitored or recorded. Becker County
Detention Facility personnel make the final determination regarding whether a telephone number is placed on and/or remains on the "Do Not Record" list.
29. After learning of the "Do Not Record" list policy and procedures, a
telephone call was made to the Jail to request that the office and cellular telephone numbers of Durkin, Bulmer, Fladmark and several other attorneys in Durkin's office be placed on the "Do Not Record" list at the beginning of December 2007.

8 80136

30. The Jail initially complied with the request and placed all of the telephone numbers - even the cellular telephone numbers - on the "Do Not Record" list on December 3,2007.
31. Approximately three months later, however, Durkin and Bulmer learned
that many of the telephone numbers were no longer on the "Do Not Record" list - and had not been on the list since December 5, 2007.
32. Unbeknownst to Durkin, Bulmer, Fladmark or Andersen - because the Jail
had failed to inform them of this anomaly - the Jail's internal policy prevents cellular telephone numbers from being placed on the "Do Not Record" list, even when the
cellular number is that of a detainee's/Inmate's attorney. Similarly, the telephone
numbers of agents of an attorney - such as an investigator hired by an attorney - are not placed on the "Do Not Record" list. Accordingly, on December 5, 2007, the cellular telephone numbers of Durkin, Bulmer and their attorney colleagues were removed from
the "Do Not Record" list. 1
33. Although Durkin's, Bulmer's and their attorney colleagues' cellular
telephone numbers had been removed from the "Do Not Record" list, Becker County Detention Facility personnel failed to inform Durkin, Bulmer or Andersen of this until approximately three months later. During that entire period, Durkin, Bulmer and their
1 Fladmark's telephone number was not removed from the "Do Not Record" list because the Becker County Attorney had informed Becker County Detention Facility personnel that Fladmark's telephone number could be placed on the "Do Not Record" list. This was an exception to Becker County Detention Facility's policy. April 14, 2008 Omnibus Hearing Transcript, p. 133, Ins. 17-25. Relevant portions of the Omnibus Hearing Transcript are attached hereto as Exhibit 3.
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colleagues contacted Andersen regularly from their cellular telephones and conversed with him at length and in detail regarding his case, the upcoming Omnibus hearing and his overall defense strategy.
34. All of these cellular telephone attorney/client telephone calls were
monitored and/or recorded by the Becker County Detention Facility. 35. Durkin raised the violations of attorney/client privilege at an April 14, 2008
Omnibus hearing ("Omnibus hearing") in Andersen's case. At the Omnibus hearing, the facts concerning the Jail's unconstitutional and unlawful policy regarding the monitoring and/or recording of attorney/client telephone calls set forth above came to light.
36. During the Omnibus hearing, Durkin stated that is seemed that Becker
County law enforcement was always "one step ahead of us" in the investigation regarding Andersen's case. Exhibit 3, p. 110, Ins. 16-25. "We talk on the phone and we talk about witnesses that we're going to go see. The State will have interviewed that witness like an hour beforehand." Id
37. Durkin stated that be became so concerned with the possibility that Becker County law enforcement were listening to privileged attorney/client telephone calls that
he arranged a "test." This test consisted of Fladmark calling Andersen and informing him that the next time Durkin visited Andersen, Durkin would "sneak him some drugs." Id at p. 111, Ins. 9-16. Durkin informed the Court of the results of the "test" after
Fladmark had made the call: "And I tell you, Your Honor, the very next day deputies
started coming up to Mr. Andersen and asking him, hey, when is (the) other lawyer, Rory Durkin, coming up to you?" Id at p. 111, Ins. 16-20. Durkin went on to admit that
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he couldn't prove that the telephone calls were monitored and/or recorded and actually
used against Andersen, but concluded that the results of the "test" were "very
suspicious." Id
38. Later during the Omnibus hearing, Durkin's concerns regarding the
monitoring and/or recording of his and Andersen's attorney/client privileged telephone calls were confirmed by Becker County law enforcement officer, Joe McArhur. McArhur stated that he was in charge of the Jail's telephone system and admitted that the Inmate Handbook does not disclose that attorney/client telephone calls are monitored and/or recorded. Id at pp. 118, 134.
39. McArhur further admitted that all Becker County Detention Facility
inmate calls are automatically recorded unless the telephone numbers of the calls are on the "Do Not Record" list. Id at p. 122 (emphasis added).
40. McArhur also admitted that neither Andersen nor any of Andersen's attorneys were ever informed by Becker County law enforcement personnel that
attorney/client calls between Andersen and his attorneys were being monitored and
recorded. Id at p. 134.
41. McArhur further admitted that he was the individual who made the
decision to remove Durkin's and his attorney colleagues' cellular telephone numbers from the "Do Not Record" list on December 5, 2007 - and that this decision was based on the "policy of the jaiL." Id at pp. 134-36.
11 80136

42. McArhur admitted that due to this decision, attorney/client telephone calls between Andersen and his attorneys' cellular telephones had been recorded by the
Becker County Detention Facility since December 5,2007. Id at p. 136-37.
43. It was also disclosed during the Omnibus hearing that Special Agent Dan
Baumann ("Baumann") of the Bureau of Criminal Apprehension - who was a lead investigator for the State in the prosecution of Andersen - was provided with audio copies of Andersen's telephone calls by McArhur and the Becker County Detention
Facility. Exhibit 3, p. 139-40.
44. Baumann admitted that he listened to the recordings of Andersen's telephone calls, and at times, heard at the very least, the initial portions of telephone calls
between Andersen and his attorneys. Id at p. 140. Baumann further admitted that he downloaded copies of the telephone calls to the hard drive on his laptop computer, reviewed the calls, and then copied the non-privileged calls that were relevant to the
Andersen investigation and provided those calls to the county attorney prosecuting Andersen - Mr. Zdrazil. Id at 143-47.
45. At the conclusion of the testimony regarding Becker County Detention
Facility's monitoring and/or recording of Andersen's attorney/client privileged telephone calls, Judge Irvine castigated Becker County law enforcement for its unconstitutional and unlawful policy and issued a cease and desist order from the Bench: "Mr. Durkin, I can tell you that no call will be recorded again on any of those cell phone numbers or land lines to his attorneys, regardless of what happens here. The jail will stop doing that immediately." Id at p. 149.
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46. Upon information and belief, the monitoring and/or recording of all Andersen's privileged attorney/client telephone calls, the failure of Becker County Detention Facility personnel to inform Andersen or his attorneys and their agents of the internal process and/or procedure to have an attorney's telephone number placed on the "Do Not Record" list, and the removal of the cellular telephone numbers of Andersen's attorneys from the "Do Not Record" list, were performed pursuant to the customs,
practices and/or procedures of the Becker County Detention Facility.
47. As admitted by Becker County law enforcement officer Joe McArhur, it is
the policy of the Becker County Detention Facility to refuse to place the telephone numbers of agents of attorneys - including investigators hired by attorneys to investigate
the detainee' s/Inmate' sease - on the "Do Not Record" list. 48. Upon information and belief, defendants continue to follow and abide by
these unlawful and unconstitutional policies, customs and/or practices at the Becker County Detention Facility?
B. Dell Holm's Interaction with the Becker County Detention Facilty
49. On May 3, 2008, Holm was arrested and detained in the Becker County Detention Facility. Shortly after arriving at the Jail, Holm became aware that other
detainees/Inmates had been provided with an "Inmate Handbook" for the facility. Holm requested a copy of the Inmate Handbook, but was informed that there were no copies
2 With the possible exception of Andersen after Judge Irvine's reprimand from the bench
during the Omnibus hearing. Andersen has since been transferred from the Becker
County Detention Facility.
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available at that time and that he would be provided with one when additional copies were printed. Holm has still not been provided with an Inmate Handbook.
50. Becker County Detention Facility personnel never informed Holm - in writing or verbally - that a process existed whereby he could arrange for a private,
privileged attorney/client telephone call, nor was he ever informed of the existence of a "Do Not Record" list.
51. In addition, Holm observed signs posted near the Jail telephones indicating that all telephone calls were subject to monitoring - with the exception of telephone calls
made to an attorney.
52. After a short time in the Jail, Darlene Rivera ("Rivera") from the Public
Defender's office was appointed as Holm's attorney. Holm communicated with Rivera
regarding privileged aspects of his case and his defense via telephones located in the
Becker County facility. Based on the signs posted by the Jail's telephones, Holm believed
that his attorney/client telephone calls were private and confidentiaL. 53. During the time he was communicating with Rivera via the Jail's telephones,
Holm was informed by other inmates/detainees that Becker County Detention Facility
personnel listen to attorney/client telephone calls. Holm then requested private,
confidential telephone calls with his attorney and others involved with his case. Becker
County Detention Facility personnel again failed to inform Holm of the process and procedure for arranging a privileged attorney/client telephone call, failed to inform Holm of the "Do Not Record" list, and instead, informed Holm that all inmate/detainee
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telephone calls are recorded - regardless of whether or not the telephone calls are made to
an attorney.
54. Holm later overheard Jail personnel discussing aspects of his case that he
disclosed to his attorney during attorney/client telephone calls.

55. A conflict later arose between Holm and Rivera and Holm requested that

another attorney from the Public Defender's office be appointed to assist with his case.

Attorney Bruce Ringstrom ("Ring

strom") was then assigned to Holm's case.

56. Upon meeting with Holm, Ringstrom informed him that if they needed to

discuss confidential information regarding Holm's case, Ringstrom would arrange an

attorney/client visit at the Jail facility instead of discussing the privileged information over

the Jail's telephones. Even then, Ringstrom would many times request that he be allowed

to meet with Holm in the Jail's library rather than in the designated attorney/client meeting

rooms due to concerns regarding the privacy of

his and Holm's attorney/client discussions.

57. Upon information and belief, pursuant to the customs, practices and/or

procedures of the Becker County Detention Facility, personnel at the Becker County

Detention Facility monitored and recorded Holm's attorney/client privileged

communications and failed to inform Holm of the internal process and/or procedure to

arrange private, confidential attorney/client telephone calls as well as of the existence of

the "Do Not Record" list. .

58. Upon information and belief, defendants continue to abide by and follow

these unlawful and unconstitutional policies, customs and/or practices at the Becker

County Detention Facility.

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C. Wiliam K. Bulmer, II's Interaction with the Becker County Detention Facilty
59. Bulmer was a colleague of Durkin's and assisted in representing Andersen
from June 2007 to January 2008 while Andersen was in custody in Becker County
Detention Facility.
60. During the time Andersen was in custody in the Jail, Bulmer contacted Andersen via telephone at the Jail on numerous occasions to discuss his case and defense
strategy.
61. Upon information and belief, attorney/client privileged telephone calls between Bulmer and Andersen were monitored and/or recorded by law enforcement
personnel at the Becker County Detention Facility.
62. At no time during Andersen's incarceration in the Becker County Detention
Facility did Jail personnel inform Bulmer, Durkin or Andersen that their privileged
attorney/client telephone calls were being monitored and/or recorded.3
63. At no time during Andersen's incarceration in the Becker County Detention
Facility did Jail personnel inform Bulmer or Andersen that the Jail's internal policy was to monitor and/or record all telephone calls - regardless of whether the calls constituted attorney/client privileged communications - unless the inmate or attorney requested that specific telephone numbers be placed on the "Do Not Record" list.
3 Durkin's and Andersen's suspicion that their attorney/client telephone calls were being monitored were initially corroborated by other inmates in the Becker County Detention
Facility. Later, a jail employee confirmed to Andersen that the Jail was indeed
monitoring and/or recording attorney/client privileged telephone calls.
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64. At no time during Andersen's incarceration in the Becker County Detention
Facility did Jail personnel inform Bulmer or Andersen that telephone calls made using a
cellular telephone were not protected under the attorney/client privilege.
65. At no time during Andersen's incarceration in the Becker County Detention
Facility did Jail personnel inform Bulmer or Andersen that telephone calls between
detainees/Inmates and investigators hired by their attorneys were not protected by the
attorney/client privilege.
66. At no time during Andersen's incarceration in the Becker County Detention
Facility did Jail personnel inform Bulmer or Andersen that a "Do Not Record" list even
existed.
v. CLASS ALLEGATIONS
67. Plaintiffs seek to maintain this action as a class action pursuant to Fed. R.
Civ. P. 23. Plaintiffs bring this action, on behalf of themselves and all others similarly
situated, as the representative members of the following classes:
All detainees/Inmates who were held in custody and/or incarcerated in the Becker County Detention Facility located in Detroit Lakes, Minnesota, and who had their attorney/client communications monitored and/or recorded without their or their attorney's knowledge, at any time from October 15, 2004 (four years prior to the filing of the Complaint in this matter) through
a date to be determined by the court, and all detainees/Inmates who
currently are or during the course of this litigation will be held in custody
and/or incarcerated in that jaiL.
and
All attorneys who represented a detainee/Inmate in custody or incarcerated in the Becker County Detention Facility facility located in Detroit Lakes, Minnesota, and who had their attorney/client communications monitored and/or recorded without their or their attorney's knowledge, at any time
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from October 15, 2004 (four years prior to the filing of the Complaint in this matter) through a date to be determined by the court, and all attorneys who currently or during the course of this litigation will represent persons
held in custody and/or incarcerated in that jaiL.
Plaintiffs reserve the right to narrow or expand these class definitions following the
discovery period.

68. Prerequisites to a Class Action - Fed. R. Civ. P. 23

(a). The prerequisites to

maintaining this action as a class action are satisfied as alleged in Paragraphs 58 through

63 below.

69. Numerosity. While the exact number of the members of the two proposed
classes is unknown at this time, the telephone calls of all inmates are monitored and/or recorded - regardless of whether the calls are attorney/client privileged calls - unless an inmate or attorney specifically requests that a number be placed on the "Do Not Record"

list. Based on this, the number of individuals in each of the two proposed classes is
estimated to be in the hundreds, and may be in the thousands. It would be impracticable to bring all, or even a substantial percentage of such persons before the Court as individual plaintiffs through traditional joinder.
70. Commonality. There are questions of law or fact common to all members of each proposed class. The common overarching question of law and fact is whether defendants violated Plaintiffs' rights and the attorney/client privilege by monitoring and/or recording attorney/client privileged telephone calls without the knowledge of either the attorney or the client.

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71. Typicality. The Plaintiffs' claims are typical of the claims of the members of
their class because: (a) each had their right to the attorney/client privilege and their right to privacy violated; and (b) their claims are based on the same legal theory as other class

members.
72. Adequacy of Representation. Plaintiffs are adequate representatives of the

two classes because: (1) they are willing and able to represent their respective classes and have every incentive to pursue this action to a successful conclusion; (2) their interests are
not in any way antagonistic to those of the other class members; and (3) they are
represented by counsel experienced in litigating complex class actions in federal court. 73. Class Actions Maintainable - Fed. R. Civ. P. 23(b)(2). Class action status is
appropriate in this case because defendants have acted and/or refused to act on grounds generally applicable to the classes, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the classes as a whole.

74. Class Actions Maintainable - Fed. R. Civ. P. 23

(b) (3). Class action status

also is appropriate because the common questions of law and fact identified above

predominate over questions affecting only individual members. A class action is superior

to other available methods for the fair and efficient adjudication of this litigation. Because

of the relatively small monetary value of each class member's individual claim, few, if

any, class members have an interest in individually controlling the prosecution of separate

actions. To the knowledge of Plaintiffs and their counsel, no class members have

commenced litigation against defendants based on the same or similar allegations as stated

above. It is desirable to concentrate the litigation of the claims in this District because

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defendants are located here. Plaintiffs and their counsel do not anticipate encountering
any unique difficulties in the management of this action as a class action. Finally, requiring members of the two classes to pursue their claims individually would entail needless duplication and would waste the resources of all parties involved and the Court.
CAUSE OF ACTION I Violation of the First Amendment of the United States Constitution

75. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action.

76. Defendants, acting under the color of law, have monitored and/or recorded
detainee/Inmate telephone calls at the Becker County Detention Facility with their

attorneys and their attorneys' agents, pursuant to policies, customs and/or practices

established by the Becker County Detention Facility.

77. When detainee

s/Inmate s, including Andersen and Holm, have come to

believe that Becker County Detention Facility personnel are monitoring and/or recording

their attorney/client privileged telephone conversations, it has produced a serious chilling

effect upon what they are able to communicate to their attorneys via telephone for fear that

Becker County Detention Facility personnel - and ultimately law enforcement personnel

and the prosecution - will be privy to their attorney/client privileged communications.

78. As a direct and proximate result of severely impeding detainees/Inmates from

fully and openly communicating with their attorneys, defendants directly and substantially

have violated the First Amendment right of freedom of speech of plaintiffs and the

members of

both putative classes. This violation is actionable under 42 U.S.C. § 1983.

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CAUSE OF ACTION II Violation of the Fourth Amendment of the United States Constitution and
Article I. Section 10 of the Minnesota Constitution
79. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action.
80. Based on the language in the Inmate Handbook, on the signs regarding
telephone calls posted in the Jail, and the protections generally afforded attorney/client
privilege, detainees/Inmates have had reason to believe that telephone calls with their attorneys or their attorneys' agents would not be monitored and/or recorded, at least until they became aware that such monitoring and/or recording was occurring.
81. Plaintiffs have not consented to the monitoring and/or recording of their
privileged attorney/client telephone calls.
82. Defendants, acting under the color of law, have monitored and/or recorded
detainee/Inmate telephone calls at the Becker County Detention Facility with their attorneys and/or their attorneys' agents pursuant to defendants' policies, customs and/or
practices. 83. Defendants thereby have directly and substantially violated the right against
umeasonable searches of Anderson and the members of the detainee/Inmate putative class protected by the Fourth Amendment to the United States Constitution and Aricle I,
Section 10 of the Minnesota Constitution. The former violation is actionable under
42 U.S.C. § 1983.
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CAUSE OF ACTION III Violation of the Fifth Amendment of the United States Constitution
84. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action.
85. Based on the language in the Inmate Handbook, on the signs regarding
telephone calls posted in the Jail, and the protections generally afforded attorney/client
privilege, detainees/Inmates have had reason to believe that telephone calls with their attorneys or their attorneys' agents would not be monitored and/or recorded, at least until they have become aware that such monitoring and/or recording has been occurring.
86. Through these privileged attorney/client communications, detainees/Inmates have discussed all aspects of their cases with their attorneys and/or their attorneys' agents, including evidentiary issues, potential witnesses and defense strategies.
87. Defendants, acting under the color of law, have monitored and/or recorded
detainee/Inmate telephone calls at the Becker County Detention Facility with their attorneys and/or their attorneys' agents, pursuant to defendants' policies, customs and/or
practices. 88. Upon information and belief, information obtained from these monitored
and/or recorded privileged attorney/client telephone calls has been utilized by Becker County Detention Facility personnel, or provided to Becker County law enforcement
personnel, for the purpose of assisting in the prosecution of the detainees' /Inmates'
criminal cases.
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89. As a direct and proximate result of defendants' policies, customs and/or practices, Andersen, Holm and the members of the detainee/inmate putative class have suffered direct and substantial violations of their Fifth Amendment right against self-
incrimination which is actionable under 42 U.S.C. § 1983.4
CAUSE OF ACTION IV Violation of the Sixth Amendment of the U.S. Constitution and Article I.
Section 6 of the Minnesota Constitution
90. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action.
91. Based on the Inmate handbook provisions and the signs posted in the Jail regarding attorney/client telephone calls, the failure of Becker County Detention Facility personnel to provide detainees/inmates with any information regarding the "Do Not Record" list, and the basic precepts of American jurisprudence regarding attorney/client communications, the detainee/inmate plaintiffs had a reasonable expectation of privacy
in their attorney/client telephone calls.
92. Defendants, acting under the color of law, monitored and/or recorded
detainee/inmate telephone calls at the Becker County Detention Facility with their
attorneys and/or their attorneys' agents, pursuant to defendants' policies, customs and/or practices.
4 Defendants' policy, custom and/or practice also constitutes a violation of
detainees' /inmates' right of due process of law under the Fifth Amendment. This claim will be addressed in the portion of the Complaint dealing with defendants' Fourteenth Amendment violations set forth below.
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93. As a direct and proximate result of defendants' policies, customs and/or practices, Andersen, Holm and the members of the detainee/inmate putative class have
suffered violations of the attorney/client privilege and their right to the effective
assistance of counsel protected by the Sixth Amendment to the United States Constitution and Aricle I, Section 6 of the Minnesota Constitution. The former
violation is actionable under 42 U.S.C. § 1983. CAUSE OF ACTION V
Due Process Violations under the Fifth and Fourteenth Amendments of the United States Constitution and Article I. Section 7 of the Minnesota Constitution
94. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action.
95. Defendants' policies, customs and/or practices set forth in this Amended
Complaint, including in Counts I through IV above, have deprived Andersen, Holm and the members of the detainee/inmate putative class of the ability to have their innocence
or guilt fairly determined. This deprivation violates their privileges and immunities
protected by the due process of law under the Fourteenth Amendment of the United
States Constitution and their libert interest under the Fourth, Fifth and Sixth
Amendments of the United States Constitution protected by the Fifth Amendment of the United States Constitution. These violations of their due process rights are actionable under 42 U.S.C. § 1983. This deprivation also violates their due process rights protected by Aricle I, Section 7 of the Minnesota Constitution.
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CAUSE OF ACTION VI Violation of Tite III of the Omnibus Crime Control and Safe Streets Act of
1968 - 18 U.S.C. § 2510. et seq.
96. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action.
97. Defendants, acting under the color of law, intercepted telephone calls of
detainees/inmates at the Becker County Detention Facility to their attorneys and/or their attorneys' agents, without the consent or knowledge of either participant to the calls and in violation of their reasonable expectations.
98. Defendants' actions violated the rights of plaintiffs and the members of both putative classes under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 - 18 U.S.C. § 2510, et seq.
CAUSE OF ACTION VII Violation of Federal Common Law
99. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action. 100. Defendants, acting under the color of law, automatically monitored and/or
recorded a large number of detainee/inmate telephone calls at the Becker County Detention Facility.
101. Upon information and belief, defendants listened to the recordings of
detainees' /inmates' telephone calls.
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102. Upon information and belief, a number of these recorded telephone calls included statements by either the detainees/inmates or the individuals with whom they
were speaking that were favorable to the detainees' /inmates' criminal defense, were
material to either the guilt or punishment of the detainee/inmate, were relevant to the

credibility of a witness involved in the detainees' /inmates' criminal cases and/ or

contained exculpatory evidence.
103. Defendants provided recordings of relevant telephone calls to the

prosecution in furtherance of the criminal cases against the detainees/inmates, except
that they allegedly destroyed any recordings of telephone calls that were deemed to be attorney/client privileged telephone calls.
104. Neither defendants nor the prosecution in any of the detainees' /inmates' criminal cases provided copies of the relevant, non-privileged recorded calls to the

detainees/inmates or their counseL.
105. As a direct and proximate result of defendants' policies, customs and/or practices, the federal common law right of Anderson, Holm and the members of the

detainee/inmate putative class to receive any evidence in defendants' or the

prosecution's possession that is favorable or material to their defense, and/or is

exculpatory, has been violated.

CAUSE OF ACTION VIII

Violation of

Minn. Stat. § 481.10. subd. 2.

106. Plaintiffs reallege and incorporate by reference all allegations contained in

this Amended Complaint as if set forth separately in this Cause of Action.

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107. Defendants' policies, customs and/or practices, as set forth in this Amended
Complaint, including in Counts I through iv above, have deprived Anderson, Holm and
the members of the detainee/inmate putative class of their right to private and
confidential telephone calls with their attorneys and/or their attorneys' agents as
guaranteed by Minnesota law. 108. Defendants' actions constitute a direct violation of Minn. Stat. § 481. 10. CAUSE OF ACTION IX Violation of Minn. Stat. § 626A.02. 109. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action. 110. Defendants, acting under the color of law, intercepted telephone calls of
detainees/inmates at the Becker County Detention Facility to their attorneys and/or their attorneys' agents, without the consent or knowledge of either participant to the calls and in violation of their reasonable expectations.
1 1 1. Defendants' policies, customs and/ or practices violated the right of
plaintiffs and members of both putative classes to be free from illegal wiretaps, and
violated Minn. Stat. § 626A.02. CAUSE OF ACTION X
Violation of Minnesota Common Law 112. Plaintiffs reallege and incorporate by reference all allegations contained in this Amended Complaint as if set forth separately in this Cause of Action.
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113. Defendants, acting under the color of law, monitored and/or recorded
detainees' /inmates' attorney/client privileged telephone calls at the Becker County Detention Facility with neither the knowledge nor the consent of the participants to the

call.

114. Plaintiffs and other class members were not informed of the processes or

procedures whereby attorney telephone numbers could be placed on the Jail's "Do Not Record" list, nor were they informed by Jail personnel that such a list existed.

115. Upon information and belief, Becker County Detention Facility personnel

do not inform plaintiffs and other class members of the processes or procedures - or

even the existence of

the "Do Not Record" list either in writing or verbally.

116. Based on the protections generally afforded attorney/client

communications, and because defendants did not inform plaintiffs and other class

members of the processes and procedures regarding the "Do Not Record" list, it was

reasonable for attorneys and detainees/inmates to believe that their telephone calls with

clients held in the Becker County Detention Facility would not be monitored and/or

recorded, at least until they would have become aware that such monitoring and

or/recording was occurring.

117. Defendants' policies, customs and/or practices, as set forth in this Amended

Complaint are a gross intrsion upon the attorney/client privilege and the fundamental
right to privacy and seclusion of plaintiffs and the members of both putative classes

guaranteed by Minnesota law.

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118. Defendants' actions shock the conscience, are patently offensive to reasonable members of society and are actionable pursuant to Minn. Stat. § 466.02.
CAUSE OF ACTION XI Violation of Minnesota Common Law - Misappropriation of
Attornev Work Product
1 19. Plaintiffs reallege and incorporate by reference all allegations contained in
this Amended Complaint as if set forth separately in this Cause of Action. 120. Telephone communications between the attorney plaintiffs and their clients
held in custody or incarcerated in the Becker County Detention Facility contained
attorney work product information, including but not limited to, legal analysis and
advice regarding evidence, testimony, potential witnesses and defense strategies relevant to detainees' /inmates' criminal cases.
121. This attorney work product information is trade secret information in that it
had independent economic value and was not known or readily ascertainable by
defendants, the prosecution in the detainees' /inmates' criminal cases, or anyone who was not privy to the telephone conversation.
122. Attorney plaintiffs and other members of their putative class made every effort to maintain the confidentiality of this attorney work product information.
123. Upon losing its confidential and privileged status, the value of attorney work product information is severely diminished. This is especially tre in the criminal
defense context when attorney work product information is disclosed to law enforcement personnel and/or the prosecution involved in the case.
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124. Upon information and belief, attorney work product information obtained
from defendants' improper policy of monitoring and/or recording privileged attorney/client telephone calls was utilized by Becker County Detention Facility
personnel, or provided to Becker County law enforcement personnel, for the purpose of assisting in the prosecution of criminal cases of detainees/inmates represented by the attorney plaintiffs.
125. Defendants' policies, customs and/or practices, as set forth in this Amended
Complaint caused the misappropriation of attorney plaintiffs' work product, severely limited the attorney plaintiffs' ability to prepare a defense on behalf of their clients and substantially lessened the value of the attorney plaintiffs' efforts.
126. Defendants' actions have caused the wrongful acquisition, misappropriation and/or use of attorney work product information obtained from privileged attorney/client
telephone calls, and have damaged plaintiff attorneys by devaluing their work product
both substantively and economically.
PRAYER FOR RELIEF WHEREFORE, plaintiffs, individually and on behalf of the proposed classes, pray
for judgment as follows: A. That this Court certify the two proposed classes and appoint named plaintiffs
as representatives of the two classes respectively, and that plaintiffs' counsel be designated as Class Counsel for both classes;
30
80136

B. That defendants' policies, customs and/or practices, as set forth above, be
determined and adjudged to be in violation of the Constitution of the United States and the
Minnesota Constitution;
C. That defendants' policies, customs and/or practices, as set forth above, be
determined and adjudged to be in violation of federal and Minnesota wiretap statutes;
D. That defendants' policies, customs and/or practices, as set forth above, be
determined and adjudged to be in violation of Minnesota statutes regarding attorney/client communications with individuals in custody in Minnesota correctional facilities;
E. That defendants' policies, customs and/or practices, as set forth above, be determined and adjudged to be in violation of federal and Minnesota common law
regarding invasion of an individual's right to privacy;
F. That this Court enter a temporary restraining order and preliminary and permanent injunctions ordering defendants to refrain from continuing the policy of
improperly monitoring and/or recording attorney/client telephone calls as set forth in this
Amended Complaint;
G. That this Court also enter preliminary and permanent injunctions ordering defendants to revise the Inmate Handbook and the signage in the facility to properly inform detainee/inmates of the processes and procedures whereby attorneys' and
attorneys' agents' telephone numbers are placed on the "Do Not Record" list, and ordering defendants to properly inform attorneys calling the Jailor entering the facility of these same processes and procedures verbally and in writing;
31
80136

H. That the plaintiffs and members of the two classes be awarded such other and
further legal and equitable relief as may be found appropriate and as the Court may deem

just or equitable;

i. That the plaintiffs and members of the two classes be awarded monetary
damages, including presumed, special and general damages to be determined at trial;

1. That the plaintiffs and members of the two classes be awarded all applicable
pre-judgment and post-judgment interest;
K. That this Court award plaintiffs and the members of the two classes their class action contingency attorneys' fees, expenses and costs, or in the alternative, their
attorneys' fees, expenses and costs pursuant to 42 U.S.C. § 1988; and

L. That this Court award plaintiffs and members of the two classes such other

and further relief as the Court deems just and equitable.

DATED: October 15, 2008

Respectfully submitted,

SPRENGER & LANG, PLLC

s/ Jeffrev A. Abrahamson
Mara R. Thompson (MN No. 196125) Dan Bryden (MN No. 302284) Jeffrey A. Abrahamson (MN No. 338187) SPRENGER & LANG, PLLC 310 Fourth Avenue S. Suite 600 Minneapolis, MN 55403 Telephone: (612) 871-8910 Fax: (612) 871-9270
Attorneys' for Plaintif

32
80136

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BECKER COUNTY DETENTION FACILITY

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INMA TE

HANDBOOK

THESE HANDBOOKS ARE JAIL PROPERTY DOiOT DEFACE
(LEAVE ON DAYROOM TABLE WHEN NOT IN USE)

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INTRODUCTION

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You rave either been sentenced to the Becker County Jail, are here for a pretrial detention or you were

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brought here to be housed by another law enforcement

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facility. Durihg the booking progress, the Correctional Offcer

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gae--you this handbook.'This handbook is to guide and

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benefit you during your stay. This handbook contains

the basic information you need to know while you are here.

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The rules adopted by the Becker County Jail are meant to insure a safe, secure and clean environment within

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the detention area. This 'handbook wil help you to

understand what is expêcted of you and what will

happen if you fail to obey the rules. If you have any guestions about the contents of this handbook, ask a Correctional Officer.

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INMATE RULES OF CONDUCT:

Violation of the following inmate rules of conduct will result in disciplinary action.

1.You will at all times show respect for the well-being of all persons and property in the jail, and conduct yourself in an orderly manner.

2.You will use moderate voice tones at all times and

refrain from loud talking, singing, unnecessary noise, or

disruptive behavior in all

living and program areas and

visiting.

3.You will resolve all differences and conflicts in a
peaceful, orderly and non-aggressive manner.

4.You will obey all direct orders given by the jail staff.

S.You will not enter office areas or personnel

living

areas, or use jailor other inmate's property only with
the permission of the occupant, owner, or staff.

G. Each inmate is required to clean his/her cell or sleeping area at the scheduled times and keep it clean.

7. All inmates of a cell..llock area will help the cleaning of the day room and shower areas of their cell block.

8. All bedding & mattresses will remain in the sleeping area and beds will be made each morning. (ALL BEDDING TUCKED INTO BUNK.) You are responsible for your bedding and required to turn in the same amount upon your release.

(2) 9. You will not throw candy wrappers or other trash into

the toilets, floor drains or on the floors in any areas of
the jaiL.

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10. You will be issued jail clothing and are required to wear them. You wil be dressed at all times when you

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are not sleeping. The sweatshirt, when worn, will be

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under the orange top.

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11. When entering the jail, you will be assigned a bed.

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You will not chanqe beds unless YOU have been qiven

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permission to do so. You may be changed due to classification.

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12. You will not hang or attach anything to the walls

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(except in the designated area), beds, doors or lighting fixtures. You will not obstruct the view of the cells in
any way.

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13. If you damage or destroy jail issue items, you will pay for them or be charged with destroying county

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property. You will not be issued new items until the

ruined ones are paid for.

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14. Inmates wil at no time be disrespectful when
addressing Correctional Officers.

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15. Inmates wil keep cell doors open at all times when not in lockdown, except when dressing and using the

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toilet.

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16. Intercom - for emerçiencv use onlv. All other

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inquiries will be addressed directly with staff when at the time of cell checks.

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(3)
PERSONAL PROPERTY:
You will not be permitted to keep cash on your person, unless you are a work release inmate. (Work release inmates will keep their money in their Huber locker) Your money will be kept in an account for you. Personal property brought into the jail will be kept in a locker assigned to you. If you accumulate personal property in your jail cell exceeding what the jail feels you should have in your possession, the property will be taken and put in your locker. The inmate will be allowed to retain the following items:
1. All legal papers.
2. Approved snapshots/personal photos (no Polaroids). Pictures must fit in the approved 3' X 3' 'black square' in your jail celL.
3. Prescription glasses and contact lenses/case.
4. Medical alert bracelet or necklace, watch, wedding band.
5. Soft cover address book.
6. Study materials - Educational Huber Release,
religious reading material, (after inspection)
7. Dentures.
8. Items sold on the canteen.
9. Hygienic items.
10. Mail

(4) 11. Items approved by the Chief of Corrections or the

Assistant Chief of Corrections. Inmates will be responsible for their personal property retained in the
jaiL.

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All reading material brought in to an inmate's jail cell

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from outside the jail, becomes property of the jaiL.

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Religious material is excluded.

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Any property left upon your release will be disposed of

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within 30 (thirty) days.

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INMATE ISSUED PROPERTY:

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All inmates are issued the following facility property: 1. One (1) uniform top

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2. One (1) uniform bottom 3. One (1) pair underwear 4. One (1) pair of socks

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5. One (1) pair of sandals

6. One (1) pilow and case

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7. Two (2) sheets 8. Two (2) blankets 9. One (1) towel

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10. One (1) sweatshirt

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Each cell is furnished with a mattress.

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You are held liable for all damaged to or loss of items

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assigned to you.

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In instances where safety and security of the facility are threatened, the Jail Staff may remove inmates' clothing, bedding and or linen if deemed necessary.

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(5)
Clothing, bedding and or linen wil be returned to the
inmate as soon as it is reasonable to believe that the
behavior that caused the action will not be continued.

LAUNDRY SCHEDULE:

A Correctional Officer will bring the laundry cart to each cell-block area. The clothing exchange will take place sometime after the evening meal, when it is convenient for the Correctional Officer. The schedule is as follows:

AREAS

LINEN/PERSONAL PERSONAL

Dorms 1 & 2

Sunday

Thursday

Blocks A, B, G, H & Max 1

Blocks C, D, E, F

& Max

"2

Monday Tuesday

Friday Saturday

NO EXCHANGE ON WEDNESDAY

PERSONAL CLEANLINESS:

1. All inmates are required to shower at least once per day.

2. Clothing and bedding are to be kept as clean as possible.

3. Initial toilet articles will be issued when you enter the jail, (1 each toothpaste, toothbrush, soap, and
comb). Shampoo and other personal items are
available on the canteen cart. Indigent inmates may request personal hygiene items from the canteen cart.

(6) 4. The Correctional Officer will issue shaving supplies

each morning at the morning med. round. When inmates are finished with the shaving supplies they are to place them on the food port. The Correctional Officer

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puts shaving supplies away by 9:00 each morning. You may request a new razor when you feel you need one.

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5. A finger nail and toe nail clipper will be available in

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each cell block during morning meds only when the

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razors are out. An electric hair clipper available also

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upon request.

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6. Inmate cells and dayrooms will be kept free of any writing on the walls. There will be no defacement of

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county property. Formal charges may result if propert

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is defaced. 7. Toilet paper wil be given out as needed at one of the

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four daily med. times (inmates must turn in empty roll)
8. Feminine hygiene items are available upon request,

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and at the regular med. times.

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SCHEDULED ROUTINE:

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1. At 6:00 AM. - 6:15 AM., a formal count of all inmates will be taken. Cells will be unlocked at this

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time.

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2. At 6:30 AM. all

lights will be turned on high, inmates

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shall arise at this time and make their beds.

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3. At 7:00 AM. breakfast will be served. Inmates will be UP and dressed when breakfast trays arrive. Each inmate will pick up his/her own tray unless the

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(7) Correctional Officer has given prior approvaL. All meals
will be eaten in the dayroom.

4. The medication cart will go around after trays have been collected from each meal of the day.
07:30 12:30 17:30 22:30

5. Inmate's recreation and library will be available

between 10:00 AM. and 10:00 P.M. daily. Times will

be posted in each day

room of the cell-block.

6. Lunch will be served at 11:45 AM. Inmates will be dressed when the trays arrive.

7. Supper will be served at 4:30 P.M. Inmates will be dressed when trays arrive.

8. Lock down at night will be at 11 :00 P.M. daily. Cell areas and tables will be cleaned before lock down.

9. Cleaning supplies wil be brought around on
Mondays, Wednesdays and Fridays in the afternoon. All inmates are expected to clean their cells, and should help with the cleaning of the dayroom.

JAIL PROGRAMS
A. TELEVISIONS:
Televisions will be furnished in each cell-block. Each cell-block is responsible for the television assigned to them. Any misuse of or damage to the television will cause it to be removed. The televisions are subject to the following rules:

(8) 1. The volume will be kept at a reasonable leveL.

2. There will be no fighting over the channel selections, majority rules.

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3. The television will be shut off at 11:00 P.M. at lock

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down at night and turned on in the morning at 6:30 AM. THIS INCLUDES DORMS 1 & 2.

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4. The remote control for the television will be left on

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the dayroom table when not in use.

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5. Any violations wil be cause for suspension of the television privileges, (24 hours for the first offense, one week for the second offense, and one month for the

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third offense.) Remember, you are not the only one in the cell-block area. Your abuse will cause the loss of the television for everyone in that cell-block area.

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6. The Correctional Officer may restrict the hours of the television viewing time based upon the compliance with

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the rules by the inmates.

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B. LIGHTS:

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1. Lights will be turned on at 6:30 A.M. every morning

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and will be turned off at 11:00 P.M. daily.

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2. Security lights will remain on 24 hours a day.

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3. Covering any of the lights or blocking any of the air

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vents with any sort of material will be considered a minor jail offense.

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(9) C. CANTEEN:
1. Inmate's money will be kept in a jail account upon
entering the jaiL.
2. Inmates with money on account will be offered the privilege to purchase items from the canteen. MONEY MUST BE IN YOUR ACCOUNT ON THE DAY PRIOR TO INSURE CANTEEN PURCHASES.
3. There will be absolutely NO CREDIT.
4. The canteen slips will be given out on the afternoon shift, on Monday, Wednesday, and Friday and orders filled and delivered after the evening meaL.
5. Money WILL NOT be transferred from one inmate's
account to another.

D. TELEPHONES:

1. Telephones will be located in each cell-block dayroom.

2. Telephone calls will be allowed daily during unlocked
status.

3. Any non-attorney/client privileged phone calls made from the Becker County Jail will be monitored and/or recorded.

4. All phone calls are outgoing only and will be made collect, or with a phone card purchased in the jaiL.

5. Inmates will

limit phone calls to a reasonable length

of time, there by allowing other inmates access to the

phone.

(10) 6. No yelling or profanity will be allowed while on the

phone.

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7. NO INCOMING MESSAGES OR CALLS WILL BE

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ACCEPTED. There is voice

mail set up within the

system for you to use and check messages. Messages

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may be left for you at this number:

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847 -9914

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8. Abuse of the phone or failng to follow the listed rules

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will result in the loss of telephone privileges.

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9. Telephones are turned on at 6:30 A.M. in the morning and shut off at 11 :00 P.M. at lockup.

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10. Inmates WILL NOT be allowed access to the booking phone except in emergencies with prior approval from the Chief of Corrections, Assistant Chief

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of Corrections.

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11. Phone cards may be purchased for $10.00 at any

time a Correction Officer has the time; or may be

purchased on the canteen cart.
E.MAIL: 1. Inmates wil be allowed to receive and send out mail

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Monday thru Friday. THERE IS NO MAIL PICK UP OR

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DELIVERY ON WEEKENDS OR HOLIDAYS.

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2. You can send and receive as many letters as you

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want.

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3. All incoming mail will be opened and inspected for contraband, but not read. If you object to this rule, your

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(11) mail will be put in your locker with your personal property until you are released from jaiL.
4. Any cash will be removed and credited to your account. (NO PERSONAL CHECKS WILL BE ACCEPTED: THESE WILL BE LISTED ON YOUR PERSONAL PROPERTY AND PUT IN YOUR LOCKER) Money orders will be given to the inmate to sign before applying it to their account.
5. Letters from attorneys and public news media will be delivered unopened. If contraband is suspected, these letters will be opened in the presence of the inmate and inspected.
6. Stamps, envelopes, and paper are sold on the canteen cart.
7. If you have no money, you will be provided with the sufficient paper and postage (*) to maintain reasonable contact with:
1. Attorneys 2. Government officials 3. Court officials (*) one stamp on Sunday, one stamp on Thursday
during canteen for personal mailngs
8. After your release, your mail will be returned to the
sender.
9. Incoming mail wil be distributed within 8 hours of receipt by the jail staff.

(12) 10. Your address here is:

INMATE'S NAME P.O. BOX 702 DETROIT LAKES, MN 56502

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(You must list your first and last name on all outgoing

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mail or it will not be delivered)

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F. VISITING:

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Visiting hours are:
MALE: Wednesday - 7:00 P.M. to 9:30 P.M.

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Saturday/Sunday/Holidays - 1 :30 P.M. to 4:30 P.M. FEMALE:

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Tuesday/Thursday - 7:00 P.M. to 9:30 P.M. Sunday/Holidays - 8:30 A.M. to 11:30 A.M.

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1. Visits with attorneys, ministers, counselors, police

officials, court services are unrestricted within reason in

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a non-monitored room.
2. All visitors under the age of 18 must be

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accompanied by a parent, legal guardian, or responsible adult. VISITORS MUST PRODUCE A

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PICTURE 10 (UKE STATE ISSUED DRIVERS

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LICENSE) UPON REQUEST. (NO W.E. to.

ACCEPTED)

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3. Length of visit will be restricted to 30 minutes. If no other inmates are visiting, length of visit may be
extended.

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4. No person under the influence of alcohol of drugs

will be allowed to visit.

(13) 5. Becker County reserves the right to revoke or refuse admittance to any individuaL.
6. When a holiday falls on a regular visiting day, the holiday visiting schedule wil be used.
7. Upon arrival at the jail you will be given a visitor request list. Your list will consist of up to three names* and their birth dates*. Those named wil be the only people allowed to visit you. (Your children under age
18 do not need to be on the list and wil be allowed to
visit accompanied by one of the three names you list) You will be allowed to make changes to your list on the first Monday of every month.
'Each visitor listed must have correct full name and date of birth, to avoid any delav in approving the visitor.
G. HUBER (WORK RELEASE) and STS:
1. All Huber or S.T.S. must be approved by the Courts, Jail Programmer, Assistant Chief of Corrections, Chief of Corrections.
2. Your employment, work hours, and workdays will be approved by the Jail Programmer, Assistant Chief of Corrections, Chief of Corrections.
3. There is a $90.00 work release deposit due before you go out on work release. This will be returned to you at the end of your sentence, providing your work release is paid in fulL. Your will be charged a fee of $15.00 for each day you are out on work release. All of the balance must be paid before you are released from jail. (All of this money must be cash)

(14) 4. You will take a urine test (U.A) and pass it before

going out on W/R or STS. You wil be randomly U.A'd at your expense of $15.00 per test.

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5. Before leaving the jail for work each day, you must clean your area and make your bed.

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6. Bag lunches are available if requested at no cost to

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the inmate.

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H. RELIGIOUS SERVICES:
1. There are church services each Sunday at 10:00 A.M. - Males, 09:00 A.M. - Females

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2. Bibles and other religious material shall be made
available to inmates who request them.

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3. You may request to see a minister, priest or chaplain through the jail administration. You may request to see

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one in private.

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i. RECREATION and LIBRARY:

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1. The jail has indoor and outdoor recreation areas.
(a Library)

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2. There wil be an assortment of reading material in

the library.

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3. Provided you are under no restrictions, you will be allowed to spend one hour daily in the recreation areas.

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(15) 4. The scheduled program times for each area are as follows:
8:00 AM. to 9:00 AM. / All Females 9:00 AM. to 10:00 A.M. / Blocks C & D Males 10:00 AM. to 11 :00 A.M. / Blocks E, F, A, & B Males 1 :00 P.M. to 2:00 P.M. / Dorm Males 2:00 P.M. to 3:00 P.M./ Max 1 & Max 2 Males 3:00 P.M. to 4:00 P.M./ Blocks G & H Males
5. The recreation area will be straightened up before returning to your cell area.
G. You will not sit on any chairs that are stacked.

J. EDUCATION:
1. G,E.D. is no longer available. 2. School release for A VTI or college is possible.
3. For details on any schooling, write to the Jail Programmer.

K. PERSONAL PROBLEMS & COUNSELING:

If you are having problems adjusting to the jail routine,

or if you are having problems on the job or

with a family member, contact the Correctional Offcer.

He/She is available to help you the best he/she can be of

assistance to you. If the problem is within the jail, ask to see

the Assistant Chief of

Corrections or Jail Programmer. If

they cannot solve your problem, you can request to see the

Chief of Corrections or you can write to him. Your letter wil

be delivered unopened. The staffwil help you any way they

can.

(16) L. IN HOUSE WORKERS:

The Becker County Jail allows certain inmates to work under the direction of the staff. To become an in house

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worker, certain guidelines have been set. You may not have to meet all of these guidelines. The final decision

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is up to the Chief of Corrections, Assistant Chief of Corrections, Jail Programmer.

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1. You must be sentenced with no outstanding

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warrants or charges pending.

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3. No record of previous escapes attempts or attempted suicide.

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4. No disciplinary reports or history of severe drug use. 5. Medical approval.

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G. Desire to work hard and cooperate respectfully with staff.

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7. If you would like to be a trustee, send a written

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request to the Chief of Corrections, Assistant Chief of Corrections, Jail Programmer.

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M. MEDICAL and DENTAL SERVICES:

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Any inmate of the Becker County Detention Facility

will be charged a co-payment for over the counter

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medication; and medical, dental and mental health care

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services that the inmate initiated. No inmate will

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be denied medical care services because of an inability to pay, but a debt will be entered against the inmate's account. If the inmate receives any funds, it

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wil automatically. be deducted from his/her account to

pay the outstanding co-payment assessment.

(17)
The jail wil use any legal means possible to collect
medical debts incurred by the inmate. There will be NO charge for staff initiated visits, or TB screening
assessments. Exception: Work release inmates are responsible for
all medication and health care services.
1. The jail nurse will usually be in the jail on Tuesday and Friday.
2. Any inmate desiring medical attention is required to notify the jail promptly. The inmate will fill out a medical request form before seeing the nurse (a $5.00 fee). No inmate will see a doctor without seeing the jail nurse first, unless there is an emergency. Nurse request
forms are available on the medication cart.
3. The Correction Offcer will dispense all medication.
4. All medication dispensed wil be taken immediately with water in plain view of the Correctional Officer.
DISCIPLINARY PLAN:
Inmates of the Becker County Detention Facility have the right to know what behavior is expected of them and the penalties for misbehavior. The disCiplinary process is fair and systematic so that no person, staff or inmate may plead ignorance of the rules or bias in the procedure. This disciplinary plan is to insure a safe
and secure environment.
A copy of the rules and regulations is also posted in the dayroom of each area and should be read by each inmate upon arrivaL. If the inmate is illiterate, the Jail

(18) Programmer will go over the regulations with that

inmate.

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DUE PROCESS:

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The following is a summary of your rights under due

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process:

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1. A published list of charges and penalties will be

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made available to each inmate.

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2. Notice will be given to each resident within twentyfour (24) hours, excluding weekends and holidays, upon determination of a violation. The notice will contain the nature of the alleged violation and penalty

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determination. The inmate may agree with the penalty and sign the violation form. If the inmate signs the violation form he/she gives up the right to a hearing. If

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the inmate would like a hearing, he/she will sign the form in the appropriate section. Hearings for major violations will be scheduled to occur within one (1)

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week of notice of being served; however; rescheduling

for good cause within 24 hours notice given to the

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inmate counseL.
3. Hearing appeals wil not be scheduled sooner than

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four (4) days from notice given with the exception of the inmate waiving this provision or residing in detention.

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4. An opportunity to appear in person before the

disciplinary board and to be heard.

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5. The right to bring evidence and to request witnesses,

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up to three (3), in addition to adverse witnesses and to confront and cross examine adverse witnesses.

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6. The right to request continuance of hearing for
cause.

(19) 7. An impartial hearing board, which will not include the reporting officer, a witness, an investigation officer or anyone who will review the proceedings for an appeaL.
8. A right to counselor counsel substitute throughout
the process.
9. A review of the need for detention prior to the hearing.
10. Stay or postponement of penalty, pending appeal at board of discretion.
11. Case findings including reasons and disposition in writing.
12. The summary of hearing proceedings, for review
and appeal wil be available to the inmate.
GRIEVANCE PROCEDURE:
A. A grievance procedure shall exist for inmates to file written complaints concerning personal health and welfare or the operations and services of the Jail Facilty. The following procedure shall be used.
1. Present your grievance, in writing, to the on-duty Correctional Officer, he/she wil attempt to rectify the situation.
2. If you are not satisfied with Correctional Officer response, direct a written grievance to the Assistant Chief of Corrections or Chief of Corrections.
3. If you are not satisfied with this response, you can send a written grievance to the Sheriff.

(20) 8. All responses to grievances wil be in writing and

returned to you within five (5) days, excluding weekends and holidays.

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C. The use of the grievance process does not prevent you from seeking legal remedies.

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D. You must sign any grievance that is submitted.

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you. Grievance information will not be put in your file.

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F. Disciplinary actions are not grievable. You must appeal these decisions.

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G. The following shall never be imposed as punishment:

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1. Limits on food. 2. Restrictions on religion. 3. Access to lawyers, and other officials involved

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in the inmate's legal dealings.

4. Medical care.

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5. Basic hygiene care. 6. Mechanical restraints or chemical agents.
7. Removal of clothing or jail bedding.

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8. Limits on mail correspondence.

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(21)
DISCIPLINE

PROCEDURE

The Jail Administrator or the Sheriff of the Becker County Sheriffs Office may issue amendments and/or supplements to this code at any time. Nptice of any amendments and/or supplements to this code shall be provided to inmates in a manner determined by the Jail Administrator. No amendments and/o(
sLlpplements will become effective until fifteen days after publication and notice to the inmates.

All inmates in the custody of the Becker county Jail

shall be subject to this code. All violations of this code

shall be punishable as disciplinary violations. In

addition to being punishable by this code, all inmates in

the custody of the Becker County Jail are subject to all

federal, state and local

laws of the United States. If a

violation of this code occurs, an inmate shall be subject

to provisions of this code as well as to the applicable

law. When an inmate allegedly commits an act covered

by criminal law, the case wil be referred to the Becker

County District Court for consideration of prosecution.

VIOLATIONS/DISCIPLINE PLAN:
Violations are classified as minor or major according to the following descriptions:
Minor Violations:
A Minor violation is an infraction committed by the inmate. It can be resolved without a formal hearing and

(22) sanctions imposed. Minor violations include acts, which

do not constitute a present and immediate threat to the security of the facility, its staff, inmates, visitors, or the inmate who committed the violation. Violation of minor

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offenses may lead to disciplinary action following the filng of a violation report by any staff member.

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Minor Violation Penalties:

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1. Loss of recreation privileges. (See below)

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2. Loss of canteen privileges. (See below) 3. Loss of visiting privileges. (See below) 4. Loss of TV privileges. (See below) 5. Loss of 'good time'.

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*First offense: Up to three days *Second Offense: Up to five days

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DEFINITIONS OF MINOR VIOLATIONS:

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1. Unauthorized Use of Property: No prisoner shall be in possession of another's personal property or the Becker county property without permission of the rightful owner or authorization of staff. This regulation differs from the possession of contraband and deals with the question of rightful use of property.

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2. Unauthorized Use of Telephone: No prisoner shall

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use a telephone outside of his cell-block without

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specific authorization from staff on duty.

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3. Verbal Abuse: No prisoner shall express profanity

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or obscenity directed at another nor make disrespectful

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remarks against the character of another person, insult

or direct insults to another person, or make efforts to

(23) intimidate anyone with remarks that have a threatening implication.
4. Creating a Disturbance: No prisoner shall create a
disturbance by yelling, banging utensils, using obscenities or in any other manner create loud disturbing noises.
5. Use of Intoxicants: No prisoner shall inject or inhale any substance, which has intoxicating effects. Any inmate found to behave in any manner, which demonstrates being under the influence of an intoxicating substance shall be in violation thereof.
6. Vandalism: No prisoner shall destroy or deface the
jail, public or personal property.
7. Gambling: No prisoner shall engage in lottery, betting or chance contracting.
8. Late Return from Release: Any prisoner participating in any release program shall return at the designated time period.
9. Conspiracy: Any prisoner who conspires with
another to commit a violation of jail rules is guilty of conspiracy.
10. Accessory: Any prisoner who assists another or
joins with another in the commission of a prohibited act either during or after the initiation of the act may be found guilty of being an accessory of the fact.
11. Operating Security Devices: No prisoner shall operate, impede, sabotage or render ineffective jail security devices. This includes but is not limited to key slots, cell doors, or other locking mechanisms.

(24)

12. Misuse of Program Areas: This includes the library, kitchen, interview roòm, visitor's room, and any other functional areas of the jail including any

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equipment in those areas.

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MAJOR VIOLA liONS:

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Major Violations include repeated minor rule infractions for a case where a determination is made

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that the remedy for a minor rule infraction serves no

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deterrent effect. In addition, rule violations are considered major when the act presents an immediate threat to the security of the facility, its staff, inmates,

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visitors, or the inmate committing the violations. Such violation will result in informal and formal disciplinary actions. Major offenses may result in administrative

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segregation in maximum security preceding any

charges filed for hearing or formal action, not to exceed

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seventy-two hours without notice of hearing.

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Major Violation Penalties:

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1. Filing of formal charges.

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2. Lockup, maximum limit of fifteen days. A full review

every seven days if problematic.

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3. Loss of all release privileges including work release

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and recreation release.
4. Loss of all earned 'good time'. 5. Loss of recreation privileges; maximum limit of thirty days.

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Major Violation Definitions:

1. Homicide: No prisoner shall kill or contribute in any
way to the death of another person.

2. Assault: No prisoner shall assault another by an act,
attempted act, or threat of an act which if carried out, would cause pain, injury, or bodily harm, or fear of pain, injury or bodily harm. No prisoner shall force another to engage in prohibited sexual behavior such as intercourse, sodomy, masturbation of
others, forced masturbation or any homosexual behavior.

3. Holding Hostage: No prisoner shall take or hold
another person and/or subject other persons to control for any purpose whatsoever.

4. Theft: No prisoner shall steal anything from another
or steal any property whatsoever, including removing property out of an assigned area without permission.

5. Smuggling: No prisoner shall transport any
contraband item around, into or out of the jaiL.

6. Arson: No prisoner shall by means of fire or
explosives intentionally destroy or damage property of
this jailor risk danger to another person whether he be
a prisoner, staff or civilian.

7. Escape or attempted escape: No prisoner shall attempt to escape. Any efforts, which suggest an attempt to leave the jail and its premises without the custody of a superVising person and without legal authorization to do so, shall be considered as an attempted escape. This includes failure to return following any release program.

(26)

8. Riot or Inciting a Riot: No prisoner shall act in a

manner which will

likely lead to the arousal of emotions

on the part of other inmates so as to create the

probability of their acting beyond the control of the staff

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member in charge.

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9. Threatening bodily harm: No prisoner shall behave

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in any manner that is threatening to others; behavior

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such as brandishing a weapon, a menacing

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posture, crowding around or gathering during a dispute,

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making a threat, veiled or direct or other intimidating

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remarks. No prisoner being moved between or within any units of the jail shall resist such movement by any threat of physical resistance or passive refusal to move

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or any intimidating remarks.

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10. Possession of contraband: No inmate shall possess illicit and lor unauthorized items considered

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contraband. Weapons are defined as guns, clubs, knives or other pointed/sharpened or cutting instruments; items not normally considered or

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controlled in such a manner that use as a weapon can

be inferred. Liquor or drugs are defined as any

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nonprescription chemical agent including alcoholic beverages or their ingredients, prescribed medication in excess of that allowed, any other substance which

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may be inhaled, injected, or ingested for intoxicating or depressant effect or drug paraphernalia. Escape paraphernalia is defined as rope, keys, tools, clothing,

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disguises or any other materials, which by nature of

location suggest use for escape.

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11. Misrepresentation: no prisoner shall falsify a

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report, or give a false statement to misrepresent a fact as to misappropriate money, services, or instrument to

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aid such personal property. This includes destruction

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rendering security devices inoperative.

12. Destruction of

(27) Property: No prisoner shall destroy

Becker County Jail public or personal property. This

includes destruction rendering security devices inoperative.

STATUTE #642.08
POLICY: THE INSPECTION AND ENFORCEMENT UNIT OF THE DEPARTMENT OF CORRECTIONS.
The inspection and enforcement unit of the Department of Corrections will interpret MCAR 2.175 E 5 to permit the use of female staff in the supervision of male prisoners. Security has many facets, including but not limited to making security rounds and doing counts in living units and cell halls that can be performed equally well by correctional counselors of either gender. Except in emergency situations, correctional counselors of the opposite gender shall not be assigned to the doing of strip searches or pat down
searches. Inmates do not have a right to legal Counsel for
disciplinary proceedings. Baxter v. Palmigiano, 425 U.S. 308 (Supreme Court 1974)'No right to counsel in disciplinary proceedings. Rights to present evidence and to cross-examine may be limited by institution's need for security and order.

(28)

FOllOWING ITEMS INMATES ARE AllOWED TO

TAKE TO PRISON:

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, .. Case 0:08-cv-05687 -AOrv-RLE Document 1 Filed 10/15/2008 Page 45 of 50
.16. Becker County jail no longer accepts stamps*, envelopes*, paper*, or magazines of any

kind to be brought in from the outside. As always, inmates wil be able to purchase them* on

the canteen. Magazines have been purchased for inmates to read. Should

any of these items be

sent or brought in, they wil be refused or placed in the inmate's property.

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, 17. You wil not throw candy wrappers or other trash into the toilets, floor drains or on the floors in

any areas of the jaiL.

: 18. MeaJs wil be announced and served by staff. Residents must pick up their own tray, or they wil
not receive the meaL.

¡ 19. Televisions wil be furnished in each block as a privilege. Residents in that block are responsible for the TV. Any damage or misuse of this privilege wil cause it to be removed.
Television hours are 06:30 A.M. to 11 :00 P.M. only. This includes Dorms 1 & 2.
:The volume wil be kept at a reasonable level. There wil be NO fighting overthe channel selections, majority rules! The remote control for the TV wil be left on the dayroom table when not in use.

'.20. All phone calls and messages to and from the Becker County Jail are monitored and/or recorded. This ipcludes the visiting booths. Exceptions are phone calls made to an attorney.

21.. All incoming and outgoing mail is subject to search, except for attorney-client maiL. leave all
other envelopes unsealed.

.22. Inmates wil put their first and last names on all out-going mail, or it wil not be processed; Jail address is: P.O. Box 702 Detroit Lakes, MN 56502

23. IF YOU ATTEND ANY OF THE FOllOWING PROGRAMS: CHURCH SERVICES. BIBLE STUDY. G.E.D. . C.D. . A.A.
YOU WILL BE EXPECTED TO PAY ATTENTION, AND NOT BE DISRUPTIVE IN ANY WAY; OR YOU WILL NOT BE ALLOWED TO ATTEND.

INMATE CO.PAYMENJ FOg.

HEALTH CARE ..

Any inmate of the Becker"County Detention facilty wil be charged a co-pay for over-the-counter

medication, medical, dental and mental health care services that are inmate initiated. No inmate

wil be denied medical care services because of inabilty to pay, but a .dept wil be entered against

the inmate's account. If the inmate receives. any funds, it wil automatically be deducted from

, his/her account to pay for the outstanding co-pæi. assessment. The co-pay fees are:

;r.: Inmate request for care (nurse request):

$5.00 ;-- -.', .

../RefUsrngto-g.ató sC!:eduled' Òi:1:9au.esteci appoJlltments.:.$5.00)

-.c,-Over:'thé=counter m~clLèãti9ris.: (See Cao.men (ist for'amountsJ_.

therewílbe"NO-cha'rge for ~-taf!JD"ìtated ~isits, presçriptiQn.medicati.on, T8 screanirJ9

assessments and regulated health care-selì'ces,-A grievance regarding queštions disputing a co-

pay charge wil be pr~sente~ to the FaciltY ÃdmiiÌistrator in writing.

Exhibit 2

Case 0:08-cv-05687 -AOrv-RLE Document 1 Filed 10/15/2008 Page 46 of 50
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STATE OF MINNESOTA
COUNTY OF BECKER
vs. ) State of Minnesota, ) plaintiff, )) )
)
Kenneth Eugene Andersen, )
Defendant. ))

IN DISTRICT COURT SEVENTH JUDICIAL DISTRICT
OMNIBUS HEARING FILE NO. CR-07-171

TRANSCRIPT OF PROCEEDING The above-entitled matter came on for hearing before the Honorable Peter M. Irvine, Judge of the District Court, in the Courthouse, in the City of Detroit Lakes, County of Becker and State of Minnesota, on the 7th day of March, 2008.

APPEARANCES

Mr. Al zdrazil
Assistant Attorney General
Bremer Tower, Suite 1800
445 Minnesota Street
St. Paul, MN 55101-21343
and
Mr. Michael Fritz
Becker County Attorney
P.O. Box 749
Detroit Lakes, MN 56502-0749

FOR THE STATE

Rory P. Durkin
Attorney at Law
403 Jackson St., Suite 305
Anoka, MN 55303

FOR THE DEFENDANT

REPORTED BY LAVONNE J. RICHARDS - RMR, CRR, CPE

Exhibit 3

Case 0:08-cv-05687 -AOrv-RLE Document 1 Filed 10/15/2008 Page 47 of 50
2

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6 7 8 9
10 11 12 13
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14 15 16 17 18 19 20 21 22 23 24 25
-.' )

INDEX

WITNESS
DANIEL BAUM

Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil Redirect Examination by Mr. Durkin Recross-Examination by Mr. Zdrazil Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil
GLEN FLADMA

Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil

JOSH BOGA'lZ
Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil

JOSEPH McARTHUR
Direct Examination by Mr. Durkin Cross-Examination by Mr. Zdrazil Redirect Examination by Mr. Durkin Recross-Examination by Mr. Zdrazil
DANIEL BAUM

Direct

Examination by Mr. Zdrazil

Cross-Examination by Mr. Durkin

PAGE
8
41 55 60 62 82
86 90
97 98
114 124 134 138
139 143

EXHIBIT DESCRIPTION
NO.
1 Mike Ladue i s Affidavit
2 Jail handbook

MK'D OFF'D REC'D

95 95

95

139 139 139

Case 0:08-cv-05687 -AOrv-RLE Document 1 Filed 10/15/2008 Page 48 of 50
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ;;\ 25

to-wi t :

The following proceedings occurred,

THE COURT: This is the case of State of

Minnesota versus Kenneth Eugene Andersen. Defendant is

present, and with him is?
MR. DURKiN: Good afternoon, Your Honor.

Rory Durkin, D-U-R-K-I-N, representing Mr. Andersen who

stands present -- or sits presently before you.

THE COURT: You pronounce your last name
Durkin? MR. DURKIN: Durkin. MR. ZDRAZIL: Good afternoon, Your
Honor. Al Zdrazil from the Minnesota Attorney General i s

Office representing the State of Minnesota.
THE COURT: And your name is pronounced
Zdrazil?

MR. ZDRAZIL: Zdrazil, yes, Your Honor,

just like the country Brazil but with a D sound.

THE COURT: All right. Thank you.

And Mr. Fritz is present, as well, from

the County Attorney's Office.

This is the time and place for an

omnibus hearing. There have been a number of motions

filed by the Defendant, and I have reviewed those

motions and documents attached. And for purposes of

Case 0:08-cv-05687 -AOrv-RLE Document 1 Filed 10/15/2008 Page 49 of 5m10

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any other sort of discovery that is appropriate when it

2 is requested. At this point in time we will let you see

3 what you have and we will address it down the road.
4 Anything else?

5

MR. DURKIN: I do. I have

Your

6 Honor, I have another motion. I believe I -- you should
7 have a copy of it in your file. I think it is motion to

8 dismiss or to ROR Mr. Andersen or significantly reduce

9 the bail by virtue of Minnesota United States
10 consti tution violations, as well as a violation of 11 Minnesota Statute 481.10, and I believe I sent a -- I 12 sent a quick basically statement of facts and a quick

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little memo. It could have been a little more thorough

14 but I was pretty pressed nor time when I discovered the

15 crux of what was happening.

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The bottom line, Your Honor, is I

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received -- I received

You know, what is funny is

18 Mr. Andersen and I and our team have felt for a long

19 time that our attorney/client privilege has been broken

20 and violated by the State. Your know, we jus t knew
21 because it seems like everything that we did and have
22 done, the State has been there like one step ahead of

23 us. We talk on the phone and we talk about witnesses
24 that we're going to go see. The State will have 25 interviewed that witness like an hour beforehand. Just
~'. -

Case 0:08-cv-05687 -AOrv-RLE Document 1 Filed 10/15/2008 Page 50 of 5()11

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a lot of little things. And at one point it was so bad

2 that I said you know what? Let. s do something here.

3 Let's see if they are listening in on our attorney phone

4 calls, or if they are listening on the private, you

5 know, Mr. Fladmark is a necessary third party,
6 attorney/client privilege clearly the case law rule the

7 attorney/client privilege goes with him. Yet I knew

8 that they were listening in on the conversations that he

9 was having. So I said you know what? I said, Glen, why

10 don i t you tell Kenny -- and I had never come up and met

11 him in jail and I hadn't really seen him in jail. My

12 associate, Mr. Bulmer, did most of that. So I said to

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him, I said you know what? Why don i t you tell Kenny

14 that I feel bad for him that he has been jailed for so

15 long. The next time he comes up I am going to bring him
16 some drugs, sneak him in some drugs. And I tell you, 17 Your Honor, the very next day deputies started coming up

18 to Mr. Andersen and asking him, hey, when is other
19 lawyer, Rory Durkin, coming up to you? Very suspicious.
20 Can't prove anything, but it is still super suspicious.

21

So I am preparing for this hearing, la,

22 la, la, and I get this memo which I attached to my
23 motion, oh, and also there was some significant problems

24 back in December with respect to the phone company that

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is used by the jail and getting the right numbers on.

Case 0:08-cv-05687 -AOrv-RLE Document 1-2 Filed 10t15/2008 Page 1 of 3B2

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That is why we thought there was a problem as well, but then I get this letter, and it is Exhibit No. 1 attached to'my motion, and I look at the last page and I am just absolutely dumfounded. I mean I am so dumfounded that I don't know what to do because it says cell number 612-384-7003, 612-272-0885, and 612-636-2576 were removed from the no record list, meaning that they are subj ect to moni toring and recording from the jail. 384-7003, attorney william Bulmer. 612-272-0885, Rory Patrick Durkin. 612-636-2576, Mark Gabriel Giancola, my partner. Since December 5th. And Mr. Andersen has called on weekends. We have spoke for hours on the weekends and at nights and on my cell phone because we, you know, as attorneys you travel around and are always on the road. That is probably a vast majority of our communications. And I get this motion and I am dumfounded. Now everything makes sense. It is not in the jail handbook. In fact, what is in the jail handbook is that that information is specifically protected, and it has not been. There is absolutely no way that he can participate in his defense, that I can speak with him, and that I can plan a defense and we can have a fair trial because the jail has been and is listening to our phone calls and monitoring our meetings. And I'll tell you something else, Your Honor.

Case 0:08-cv-05687 -AOrv-RLE Document 1-2 Filed 10t15/2008 Page

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If you go up into that jail and you go into those interview room, the little joke between the inmates is, hey, attorney, bring up some duct tape because they monitor us. And you go look at those little monitors and those intercoms and there is little tiny square pieces where people have put duct tape, ripped off, duct tape, ripped it off, duct tape, ripped it off because we al 1 know. Can I prove it? No. Bu t I do have this in writing -- in writing that supports my motion. And, if necessary, I mean I believe I subpoenaed Mr. McArthur with respect to that issue, and I think I requested that he bring the jail handbook, the little slip of paper that is above the jail phone and something else that my brain is not remembering right now, but i will remember it in a moment. 80 I guess maybe I could call him to the stand right now.
THE COURT: All right. Is Officer McArthur out there? JOSEPH McARTHU, a witness, called by the Defendant, being first duly sworn, testified on his
oath, as follows:
THE COURT: State your name and spell your last name, please.
THE WITNESS: Joseph Henry McArthur, M-C-A-R-T-H-U-R.

Case O:~E~6ßêlA%~LE Document 1-2 Filed 10t15/2008 Page

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THE COURT: Mr. Durkin.
BY MR. DUR~N DIRECT EXAINATION
Q. You are Joe McArthur; correct?
A. Yes.
Q. My name is Rory Durkin. I represent
Mr. Andersen. I don't believe we have ever met; is that fair?
A. Yes.
Q. But we have spoke on the phone a couple times; is that correct?
A. Yes.
Q. What -- and I want to be as respectful
as I can, so I am wondering what would you -- is Captain -- Captain probably the best title for you? Should I just call you Captain McArthur; is that okay?
A. That would be fine. Q. All right. Captain McArthur, you are in
charge of the jail calls, is that correct, or the jail phone system and right now monitoring the jail calls and what numbers get put into the system; is that correct?
A. Yes. Wel i, yeah.
Q. Can you explain, and maybe to me, Mr. zdrazil, and the Court how that process works?
A. The process for putting --. Could you
be more, I guess, specific on? Do you mean

Case o:ôeßNIfEîAiM:LE Document 1-2 Filed 10t15/2008 Page4ofjg5

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attorney/client calls?
Q. i go to jail for whatever i cuz I am bad
in court and I have to spend a couple weeks in j ai 1 .
There is some phone calls that I want to make and some numbers that I want to callout. Do you understand
that? A. Yes.
Q. Now, some of those numbers might be protected by the attorney/client privilege, my attorney's phone number; is that a fair statement?
A. Yes.
Q. And then others might be subj ect to
recording, the phone calls to my brother or my girl; is that a fair statement?
A. Yes.
Q. Okay. Now, how --? You tell the
inmates at the beginning and give them a handbook; correct? A jail handbook?
A. Yes, we do.
Q. And that jail handbook explains the phone call procedure¡ correct?
A. It explains the phone call procedure,
yes.
Q. And it tells them that phone calls to
their attorney are protected by the attorney/client

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privilege and are not subject to recording; correct?
A. No.

Q. It doesn't say that?
A. No, it doesn It.

Q. Do you have --? May I have just a

second, please?
A. Yes.

Q. In fact, I requested in my subpoena that
you bring that. Do you have a copy of that handbook?
A. Yes, I do.
Q. Would you mind grabbing it? In fact,
would you mind grabbing --? I think I I am sorry.

i'll have it in a second. Here we go. Any and all

records and/or information related to jail calls of

Kenneth Andersen, any and all calls made by Kenneth

Andersen that were

monitor recorded, copy of the inmate

handbook and copy of inmate phone call phone use sign

pos ted in the jail. Did you bring those things?
A. Yes, I did.

Q. Can you grab them and it would make it

easier for you so you don't keep going back and forth in

getting them?
MR. DURIN: Is that all right, Your Honor? The judge said yeah.
THE COURT: Who has them?

Case 0:ß6g~~~M:IiLE Document 1-2 Filed 10t15/2008 Page 6 of 3s 7

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THE W~TNESS: I have them - - I have them

out in the hallway. Can I go get them?

Q. (Mr. Durkin continuing) Do you need a
second?
A. Okay. And what specifically are you
requesting?

Q.

Can you go to j ail handbook where it

talks about attorney phone calls, or the inmate
handbook? I am sorry. A. Okay.

MR. DURKIN: May I approach?

THE COURT: You may.

No.3?

Q. (Mr. Durkin continuing) Can you read

A. Yes. It says, "Any non-attorney/client

privilege phone calls made from Becker County Jail will
be monitored and/or recorded."
Q. Basically what you tell the inmates is

that their attorney/client privilege phone calls won 't

be recorded; is that correct?

A. It doesn i t say anything about that.
Q. But that is what you tell them; is that
correct?

A. Not to my know1edgei no.

Q. SO you don't tell them --? So do you

Case Oy~s:p¥EM.iEPM7~LE Document 1-2 Filed 10t15/2008 Page

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tell them that you are going to record their attorney

2 calls?

3

A. I don't book people into the jail.

4

Q. Okay. Well, you are in charge of the

5

jail telephone policy; correct?

6
7 I --

A. I am in charge of the jail, yes, but

8

Q. And the telephone policy? Yes or no,

9 please.

10

A. Yes.

11

Q. Now, do you tell the inmates that you

12

are going to record their attorney calls?

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14

A. I cannot answer that question. Q. Is it in -- is it in that inmate

15

handbook?

16

A. No. No.

17

Q. Okay. It just says all

18

non-attorney/client privileged calls will be recorded;

19 correct?

20

A. Yes.

21

Q. Okay. Do you make ita habit to

22

record --? I take that back. Strike that. Now, do you

23

have a copy of that sheet that hangs over the phone?

24

A. I am not quite sure what you are talking

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about, a sheet.

Case O:(JÔSìia6~~LE Document 1-2 Filed 10t15/2008 Page

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Q. Yeah. There is a piece of paper in the

2

jail area inmate phone?

3

A. Like this one (indicating)?

4

Q. Yeah. Is that it? May I have it for a

5

second?

6

A. There is actually two.

7

Q. I don't need that. That's all right.

8

Forget about that for right now. I am showing you a

9

letter. On the bottom of it is marked 2830. It is just

10

what is called a Bates number, 2830 and 2831. Do you

11

remember that letter?

12

A. Yes.

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13

Q. And you wrote that to Mr. Fritz; is that

14 correct?

15

A. Yes.

16

Q. And he is the county attorney right now

17

up here in Becker; right?

18

A. Yes.

19

Q. Now, if i could take you to 2831 of that

20

letter, you indicated on No.3, can you read that for

21

me?

22

A. It says, "Cell phone numbers of

23

612-384-7003, 612-272-0885, and 612-636-2576 were

24

removed from the no record list on December 5th, 2007."

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Q. Thank you. Now, what that means is that

Case O:OO~iQE¥blf#~LE Document 1-2 Filed 10t15/2008 Page 9 of :; 0

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means that those numbers are subject to monitoring

2 and/or recording; is that correct?

3

A.

They are subj ect to recording.

4

Q.

But not monitoring?

5

A. Yes and no.

6

Q.

Okay. Can you explain that for me?

7

A.

They -- those calls would be subj ect to

8 random monitoring by jail staff in the usual course of

9 their duties when they randomly look through j ail calls.

10

Q.

Because I mean it is fair to say that at

11 some point you guys were ordered or requested or
12 suggested that you monitor Mr. Andersen's phone calls

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and record them all; isn't that fair?

14

A.

NO.

15

Q.

It is not fair to say that?

16

A. That i S correct.

17

Q. So then I don i t have from you

So is

18 it your testimony right now on the stand that I have not

19 received months and hours and hours and hours of

20 recorded telephone conversations made by Mr. Andersen?

21 Is that your testimony?

22

A.

I believe your question is that we were

23 asked to do it. We were not asked to do it. It is a

24 matter of standard policy and procedure that the

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25

'--

recording is done. No one has asked us to record them.

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It is just a normal course of what happens up there.

Q. perfect. So it is a normal course of

what happens up there. His phone calls get recordedi
right?

A. Yes, every inmate.
Q. Okay. But his, too, Mr. Andersen's? A. Yes.
Q. Okay. When they are not on the no

record list, they get recorded pretty much?
A. Yes.
Q. Okay. And the three numbers were taken

off the no record list on December 5th, 2007 i is that
correct? A. Yes.

Q. Okay.

MR. DURKIN: May I have just a second,

Your Honor, please?

Q. (Mr. Durkin continuing) Now, when you

make a recording of these calls you generate a report

with the -- with the recordingi is that correct?
A. Could you clarify that a little more? Q. Sure. You record a Let's say you

record a phone calli okay? Are you with me?
A. A little bit.

Q. And then

well, you just told me you

Case 0:~fìS.cA~Ml-6¥~.E Oocument 1-2 Filed 10/15/2008 Page 11 of ~ 2

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record every inmate's phone; right?

2

A. Recording is done automatically.

3

Q. Okay. It is done automatically. Oh, so

4

if it is not on the no record list, it is recorded

5

automatically; is that --? I am sorry. I misunderstood

6

that. Is that how that goes then?

7

A. I don't know how to answer that. I

8

don't know what the --. Every inmate -- every inmate's

9

calls are subj ect to recording unless they are on the no

10

record list.

11

Q. Well, now - - and don i t get mad or swear.

12

A. No, I am not mad.

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Q. i am not trying to give you a hard time.

14

I am just trying to understand.

15

A. Yup.

16

Q. Because you just said --. And i'll

17

speak slower. And they just -- sorry. And they just

18

. said -- you just said that they were automatically

19

recorded, but then you also said that they were subject

20 to recording. And that is two very different things.

21

i Cuz if they are automatically recorded, there is no

22

subject to. They are just automatically recorded;

23 right?

24

A. I don't remember saying subject to, but

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they are automatically recorded.

Case 0:~íHl6$:~E Oocument 1-2 Filed 10/15/2008 Page 12 of i~3

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Q.

Perfect. So you get a phone call that

2 has been automatically recorded and you are going to

3 send that recording to Mr. zdrazil or Mr. Fritz. You

4 don't just send them a CD; right?

5

A. No.

6

Q.

You will put a time and a date and who

7 the phone call was to and roughly maybe - - maybe how

8 long the phone call is; fair enough? Sometimes?

9

A.

If I completed a report it would be

10 information subj ect to that, yes.

11

Q.

perfect. And sometimes you will even --

12

you will get and I don i t know, you will get somebody

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to transcribe it; is that true?

14
15 yes.

A.

They will be transcribed by officers,

16

Q. Okay. And then that -- okay. So they

17 will be recorded, a report generated, and sometimes a
18 transcript generated as well; correct?

19
20 yes.

A.

Certain calls that do get monitored,

21

Q.

But still automatically recorded; right?

22

A. Yes.

23

MR. DURKIN: I don't have any further

24 questions. Thank you very much.

i \'.

25

THE COURT: Mr. Zdrazil.

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MR. ZDRAZIL: Thank you, Your Honor.
BY MR. ZDRAZIL CROSS-EXAINATION

Q. Captain McArthur, the phone sys tern at

the jail -- let's clarify. The jail is here in Detroit

Lakes; is that correct?
A. Yes, it is.

Q. Is the phone system operated by a

private contractor contracted with the county?

A. The

Yeah, the phone - - the phone

system is put in by a private contractor, and they are

the ones that keep it up and running, recording the

calls, different things like that; yes.

Q. And they maintain the equipment?
A. Yes.

Q; And where are those recordings then
kept? Where is the hard drive or the tape player?
A. Is up in the jail control.
Q. SO the recording is actually kept here

in Becker County?
A. Yes, that's correct.

Q. Now, you talked about deputies randomly

moni toring phone calls.
A. Yes.
Q. Tell us about that. A. As part of jail security to make

Case 0:Qfs~:í6~è-~miE Oocument 1-2 Filed 10/15/2008 Page 14 of 195

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sure

There are several, a few different reasons why

the jail phone calls are monitored. And, you know, the

main ones are for safety and security of the jail.

Sometimes we have inmates that have personal problems

and they may be thinking about hurting themselves, and

the correctional officers listen to those type
conversations to to discover anything like that that

might be happening, or any plan for escape or anything

like that. There is basically two different ways that

they listen. There is either a random sampling. There

is no scientific method used to that, to my knowledge,

what I have been told. It is just that the correctional

officer will go in from time to time. They will just go

into different cell block recordings and they will just

click on different things to see if they would run

across a conversation where somebody is talking about

those type of things. And then the second type is where

if they get specific information about an inmate who is

planning to harm themselves, or may be making plans for

escape, or to hurt another correctional officer or

something like that, then they will start specifically

singling out that inmate's cell block and they will

start listening to the majority of the calls from it.

And those are the correctional officers i duties in

listening to j ail phone calls.

Case 0:QfiOfl§:68I~E Oocument 1-2 Filed 10/15/2008 Page 15 of 3-~ 6

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Q. And the correctional officers are people

other than deputies¡ is that correct?
A. Yes i that i s correct. Q. They are people who run the j ail and
maintain the j ail i move the inmates in and out of the

jail and around the jail?
A. Yes i that. s correct.

Q.

Now i if

Is there any policy in the

Sheriff i S Department governing those correctional

officers as to what they should do if they are listening

to a phone call and they become aware that it is a phone
call between an inmate and the inmate i s attorney?
A. Yes. They are aware and are told that

they are to terminate that call and not listen any
further. Q. wi th regard to this case i have you

become aware at any time during this case of any

correctional officer who has listened to a phone call

between the Defendant and his attorney?
A. No.

Q. Have you heard any information or

observed anybody doing any investigation that you have

in any way thought might have been initiated because

somebody had overheard a conversation between Ken

Andersen and his attorneys?

Case O:QfisÍHi6iI~E Oocument 1-2 Filed 10/15/2008 Page 16 of i9 7

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A. No, I have not.

Q. Now, you mentioned that there has also

been specific monitoring of Ken Andersen's phone; is

that correct?

A. Yes, that's correct.

Q. And who has specifically been moni toring

his phone calls?

A.

It would be mys elf and Agent Baumann.

Q.

Are you the only two people who have

been specifically listening to Ken Andersen's phone
calls?

A. Yes and no. Yes, we are the main ones

involved in it, and then on occasion when Agent

Baumann --. Everything that was heard would be

channeled to him. initially he took all the calls and

he went through them. At one point through this i was

fil tering out some of the calls. If I heard some, I

would give them to him and then --. Well, let me
restate that . cuz that is not correct. Initially he

took all the calls, and then around the beginning of

July it was becoming too much for him to do, so I

actually started going through some of the calls then

and just filtering out some of the missed calls and

other inmates that are in the cell and filtered them

out, and then I would

He would stop by the office.

Case O:~í)OO$f~E Document 1-2 Filed 10/15/2008 Page 17 of Mi8

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i would give them those calls, and then he would take them and continue to go through them and monitor them, until about August 16th or August 17th. I would have to refresh my memory in looking at it again. At that time
he was advised he told me he was advised he didn 't
have to do any more constant monitoring of the calls. And so then at that time I agreed to -- i would go through them, listen to the ones where he was talking to other citizens and family members and stuff like that, and then I would report to him then if I heard anything that -- if I thought it was evidentiary value or something like that. And that was starting around the 17th of August.
Q. And then, Captain McArthur, has anybody besides you and Dan Baumann done this initial screening
of the Defendant i s calls, clearly once you found the call of interest somebody else might listen to it, and it may have been disclosed to defense, but the initial screening has anybody besides you and Dan Baumann done
tha t ?
A. No.
Q. If you become aware that a phone call is between Kenneth Andersen and his attorneys, what do you do?
A. I terminate that call. I stop listening

Case O:~lPfWcARi&E Document 1-2 Filed 10/15/2008 Page 18 of Jg 9

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immediately, and then I delete that call from the system

or from
Q. Now, in the process of doing this, have

you heard anything in any phone calls between the

Defendant and his attorneys, or for that matter, --.

Well, let me ask. What if you find out it is a call

between the Defendant and investigator hired by the

attorneys, what do you do?
A. I don't listen to those either.
Q. In the process of this, have you heard

anything in those calls, maybe before you realize it is

to an attorney or to the investigator? Have you heard

anything that is of any relationship to this case, any

information about this case, about the facts of the

case, witnesses?
A. No. Q. Have you initiated any sort of

investigation because of anything you have heard in

..

those calls?

A. No.

Q. Now, if an inmate or an attorney wants

their number blocked, and let i s clarified what blocked

means. If a number is blocked, am I correct that that

is entered into the computer system that records the

calls? And if those numbers are dialed, there is just

Case 0:Qfis~Hi6~~E Document 1-2 Filed 10/15/2008 Page 19 of i~ 0

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no recording made?
A. That's my understanding, yes, is that that number is I don i t do the process of putting
those numbers in, but the jail staff does, and then that number is no longer recorded is my understanding.
Q. How does an inmate or an attorney get a number blocked?
A. In order for an inmate to get a number blocked they have to make a request for that number to
be blocked.
Q. Do they do that in writing or verbally?
A. Well, that has changed from the time that this has started to the time since he has been in. And i had talked with the old jail administrator who had retired in November. The usual way to do it was for the inmate to actually -- what they would have them do is have the inmate call Reliance to request it, the number. Reliance would do the investigation into assuring that that number is an inmate number, and then -- or excuse me -- is an attorney number, and then once they confirm that, then that number would be put in, I think an attorney in good standing, that it was actually a law
firm i s number, and then that number would be put in as a
blocked number. Q. And Reliance is the private company that

Case 0:Qf~~g6lì&~ilE Document 1-2 Filed 10/15/2008 Page 20 of :B91

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manages the phone system?

2

A. Yes.

3

Q. How and when did that procedure get

4

changed?

5

A. Sometime in 2007, and I don 1 t know the

6

exact date they did a software upgrade to the Reliance

7 system. And then what has been explained to me, in

8

talking to a Reliance representative, is that when that

9

happened, they changed the way that those numbers were

10 blocked. And at that time Reliance still took the

11

can take the initial call for the request for the

12

blocking, and then they still do the investigation into

(

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it, to make sure it is that proper number and stuff, and

14

then they put that into Once they confirm it is

15

attorney's number, they put it into a blocked status

16

then at that time, well, a free status, and then I think

17

it is automatically blocked. And then at that time the

18

j ail staff has to go in and make the final

19

determination, or the jail itself, as to if that number

20

will remain blocked or not blocked.

21

Q. SO that is an additional step over what

22

there was before?

23

A. Yes.

24

Q. Do you know when the reques twas put in,

25

and specifically I won't list them all again, but the

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numbers that Mr. Durkin reci ted to you on the record?
A. Yes, I do.

Q. Do you know when the reques t was made to block those numbers?
A. To my knowledge a request wasn't made

to --. That request to block those numbers, to my
knowledge, was made on December 3rd.

Q. And on December 5th they were unblocked? A. Yes. It is my understanding in talking

to the jail staff on this, when that request corne in, it

was by phone to a member of the jail staff who wrote the

numbers down. And then that jail staff person then

called Reliance and gave them those numbers. And then

at that time they were still under the impression that

that's just what they did. And they called Reliance

with the numbers and then Reliance did the stuff behind

it. But what Reliance did is Reliance did that initial

check, but then they told the jail it is up to you to

decide if

you are going to permanently block that number

or not. And they had to make the decision at that time

to do the final blocking or unblocking of those calls.

Q. And because they were cell phones they unblocked them?
A. Yes. Sergeant Rostad carne to my office

with the question, and he told me about the change and

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how things are done. And then I said to him, well,
what i s the policy of what you do with these types of
phone calls? And he says we block we block
attorney/client office numbers but we don i t block -- we don't block cell phone numbers.
Q. Why not cell phone numbers?
A. Of anybody.
Q. Why not cell phone numbers? A. I asked him that, and he said the reason
is it is again back to a jail security risk, and those numbers have the potential to be used in ways they shouldn't be used and so they still want those numbers not blocked for jail security reasons.
Q. Were there also then on December 5th and 6th two phone numbers, specifically 763 -421-1441 and 763-684-0627, that were blocked?
A. I don't remember the numbers
specifically, but I remember telling them that, to block the office numbers and to block the private investigator number because I had been told that even though normally the private investigator's number is not subject to be blocked, in this case the County Attorney had allowed that to happen and so that private investigator's office number and the two attorneys' firm numbers were put in there as blocked.

Case O:~l)ã6$:~E Document 1-2 Filed 10/15/2008 Page 23 of J§ 4

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Q. And are those numbers still being
blocked?
A. Yes. To my knowledge they haven i t been
changed.
MR. ZDRAZIL: I have no further
questions f Your Honor.
THE COURT: Mr. Durkin.
BY MR. DURKIN REDIRECT EXAINATION
Q. Captain McArthur, does it say anywhere in the jail handbook that you record some attorney calls and not others?
A. Not to my knowledge, no. Q. Did you ever tell Kenneth Andersen or --? Did you ever tell Kenneth Andersen you were
recording his attorney calls?
A. No. Q. Did you ever tell us you were recording our attorney calls? A. No. Q. You ever call my office and tell us you
were recording our attorney calls?
A. No.
Q. SO you guys just made a random decision
to record my calls i my associate i s calls, and my partner's calls with Kenneth Andersen; correct?

Case O:~~&?eAi?lnE Document 1-2 Filed 10/15/2008 Page 24 of W 5

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A. I made a decision based on policy of the

2 jaiL.

3

Q. Is that policy in the handbook?

4

A. No.

5

Q. In fact, it says all non-attorney/client

6

privileged calls will be recorded; correct?

7

A. Yes.

8

Q. That's all it says; right?

9

A. That's correct.

10

Q. SO basically --. And if I can refer

11

Mr. Zdrazil and maybe Your Honor to No. 5 in my initial

12

Notice of Motion and motions, the big thick one we were

( 13 dealing with on the search warrant issue, page --

14

number --. The first item in that is the actual motion

15

itself. The second item in that is Affidavit of William

16 K. Bulmer, Esquire. No.5. And then i'll just speak to

17

you, if I may, Captain McArthur. So basically our

18

office called you guys up, basically gave you the

19

numbers, the cell phone numbers, correct, and the office

20

numbers; correct?

21

A. Yes. It was

And I believe the

22

investigator's number was on that slip, tooi I think.

23

Yes.

24

Q. Perfect. And we were told that those

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numbers were on the block list; right?

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A. I have no idea if you were told that. Q. Okay. That's fine. But then you made the decision, without informing anybody involved, to record the three numbers; correct? Put them on the no record list?
A. That's not correct.
Q. You made the decision to put the three
attorney cell numbers on the no record list based on policy; correct?
A. Yes.
Q. All right. So every single call that
Mr. Andersen has made in the pas t, I don't know, three or four months, my math isn't that good, I am sorry, I am not a mathematician, but for whatever those months are, those phone calls have been recorded; correct?
A. If it was a cell phone, yes. Q. My cell phone, every conversation,
whether we i re talking about the rain, the weather, the case or your testimony tomorrow or a trial, that's
recorded; correct? A. Yes. Q. Okay. Same with William Bulmer's;
correct? A. Yes.
Q. And the same wi th Mark Giancola;

Case O:~i)wWC"~E Document 1-2 Filed 10/15/2008 Page 26 of ig 7

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2

A.

If that was his cell phone number, I am

3

not sure.

4

Q.

Well, can I --?

5

A.

Those three numbers, yup.

6

Q.

Perfect. And the same wi th

Oh, and

7 it was your testimony that you decided that you would do

8

us a favor, or Kenneth Andersen a favor, for lack of a

9

better term, you put his investigator i s number in the no

10 block - or the block list; right?

11

A. No i that wasn i t what i said.

12

Q. Well, did you --? You blocked

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Mr. Fladmark 's, the private investigator i you blocked

14

his number; correct?

15

A. Yes i i did.

16

Q. But you generally said as a general

17 ma t ter , the Becker County j ai I doesn i t do that becaus e

18 they don i t believe those communications are privileged¡

19 correct?

20

A. Yes.

21

MR. DURIN: No further questions.

22

THE COURT: Mr. Zdrazil?

23 BY MR. ZDRAZIL RECROSS-EXAINATION

24

Q. Captain McArthur i and that i s because you

( .-

25

were told by the prosecutors to block that number ¡ is

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that correct?
A. That i s correct.

Q. And just to clarify, Mr. Durkin asked

you if every call to a cell phone number of his attorney
has been recorded, and you said yes. A. Yes. Q. Has any call of Mr. Andersen to his

attorney's cell phone been listened to?
A. No.

MR. ZDRAZIL: No further questions.
MR. DURKIN: Not right now, Your Honor.

THE COURT: Thank you. You can step

down, sir.

MR. DURIN: Oh, may I have that copy of

the jail handbook or do you need it? Could we enter

that into evidence? MR. ZDRAZIL: Your Honor, I have

actually never seen the jail handbook, so I have no

obj ection as long as after I have a chance to look it.
MR. DURIN: Of course.

MR. ZDRAZIL: I can file an objection if

I think there is anything in there.
THE WITNESS: I made two of them. THE COURT: Let. s mark one of them as

Exhibit 2, and we will receive that for purposes of this

Case O:OOfl~~LE Document 1-2 Filed 10/15/2008 Page 28 of ig 9

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hearing.
Are we now done with this witness?
MR. ZDRAZIL: Yes.
(Exhibit No. 2 was marked for
identification. )
THE CLERK: Exhibit 2 marked. THE COURT: Counsel i approach, please. (Discussion held at the bench off the
record)
THE COURT: You are done wi th your
position on the phone calls.
Mr. ZdraziL. MR. ZDRAZIL: Your Honor i I will call Dan Baumann. THE COURT: All right. Just have a seat, sir. I just remind you that you are still under
oath.
THE WITNESS: Yes, sir.
BY MR. ZDRAZIL DIRECT EXAINATION
Q. Hello again, Special Agent Baumann.
A. Hello.
Q. You --. Is it correct, Special Agent
Baumann, that you have been specifically listening to phone calls, off and on, between you and Captain McArthur have been listening to phone calls made by

Case O:~1!W3~~LE Document 1-2 Filed 10/15/2008 Page 29 of ~ 0

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Kenneth Andersen from the jail here in Becker County and

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prior to him being in Becker County in I believe it was

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Mahnomen and one other county?

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A. In Roseau CountYi correct.

5

Q. And to the extent that you have been

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listening to those phone calls, have you occasionally

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heard a call, or more than one call, have you heard

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calls where it becomes apparent that the Defendant is

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talking to one of his attorneys or the investigator

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hired by his attorneys?

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A. Yes.

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Q. What do you do when it becomes apparent

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to you that he is talking to an attorney or the

14 investigator?

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A. I immediately terminated listening to

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those calls and then looked through the remainder of the

17

calls that I have on that CD. CDs are provided to me to

18

review and identify the other names that are the same

19

and delete those from the --. So I -- ordinarily I take

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them from the CD, download them onto my computer and

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then delete the calls that are consistent with attorney

22 calls.

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Q. So the same number?

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A. Same number.

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Q. i am sorry?

Case O:Oß!ßfM&~NLE Document 1-2 Filed 10/15/2008 Page 30 of ~1

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A. The same number.
Q. Okay. And has that been true ever since

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you started listening to phone calls made by the

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Defendant?

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A. Yes.

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Q. Have you ever in the process of

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listening to a call before it became apparent to you

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that this was a call to one of Mr. Andersen's attorneys

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or to the investigator, have you ever heard any

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discussions of any information concerning this case,

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concerning witnesses, concerning trial strategy,

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anything that would involve the facts or the procedure

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in this case?

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A. No, sir.

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Q. Have you ever as a resul t of anything

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you have heard in a call between the Defendant and one

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of his attorneys or the investigator initiated an

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investigation or asked somebody to look into something

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or done any investigation on your own?

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A. No, sir.

21

Q. Have you ever, as you have been looking

22

at this case, and perhaps let me clarify. Is it fair to

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say that all reports generated either by you or other

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people in this case at some point would be routed to you

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so you would, in fact, not only read your own reports

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but read reports by other investigators in this case?
A. Yes.
Q. Have you ever in the process of reading those reports ever suspected that a report or that a witness was interviewed or that somebody took an initiative because of something that was heard between the Defendant and one of his attorneys or an
investigator?
. A. No.
Q. On the other hand, have you in listening
to phone calls between the Defendant and say his mother, his sister, Mike Ladue, who is not an attorney, his brother, have you heard things that have prompted you to initiate investigations?
A. Yes.
Q. Have you occasionally heard the Defendant say things along the line when he is talking to, say, his mother, or his brother, my attorney is going to do such and such or is going to talk to so and
so?
A. Yes, they talk about the attorneys. Q. Okay. And when he says that the
attorney is going to talk to so and so, do you then go talk to so and so yourself?
A. Ordinarily, yes.

Case O:~£W~~LE Document 1-2 Filed 10/15/2008 Page 32 of ~3

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MR. ZDRAZIL: No further questions,

2 Your Honor.

3 THE COURT: Mr. Durkin.
4 BY MR. DURIN CROSS-EXAINATION

5
6 that
7

Q.

Agent Sieling, (sic) you indicated

Do you have a laptop?

A. Yes.

8

Q.

So you use a laptop for your work. Or

9 at least a lot?

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A. Yes.

11

Q.

Because it's a laptop, in the field it

12 makes it super easy, i guess ¡ right?

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A. Yes.

14

Q.

So you get a disk from the j ail of phone

15 calls ¡ correct?

16

A. Correct.

17

Q.

And then you load those calls like I

18 would when I get a disk from Mr. Zdrazil or Mr. Fritz, I

19 pop it into my laptop¡ right?

20

A. Correct.

21

Q.

And then do you download it to your hard

22 drive?

23

A.

I download it to, yeah, to a file.

24

Q.

You actually download a disk that might

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have, like for example, we have gotten, you know, a

Case O:~aM~~LE Document 1-2 Filed 10/15/2008 Page 33 of M4

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bunch of disks from you guys and it will say Andersen

2 jail calls, November 14th through November 22nd. And

3 they will be, as I am sure you have listened, brutally

4 long, tedious hours of jail calls¡ fair enough?

5

A.

Those are the same calls, yes.

6

Q. Yeah. And then you down --. So you

7 don't -- you don i t just listen to them on the disk, you

8 download that disk onto your hard drive and create a
9 file?

10

A. Yes.

11

Q.

So you don't need the disk to access

12 those calls at some point ¡ correct?

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A. That's correct. And then I can delete

14 the calls that don't need to be on or reviewed.

15

Q.

So basically then you take the disk, you

16 pop it into your laptop, create a file. So then

17 basically you are walking around with your laptop and

18 those attorney/client privileged calls until you listen

19 to that call and delete it¡ fair enough?

20

A. Yes.

21

Q.

So those calls could be in your car when

22 your laptop is in your car¡ fair enough?

23

A. Yes.

24

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Q.

Could be down at the BCA¡ fair enough?

A. Yes.

Case O:~iæ:æiJl.mW.~LE Document 1-2 Filed 10/15/2008 Page 34 of 395

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Q. Sheriff i s office?
A. Sure.
Q. Heck, I mean it is theoretically
possible if you had your laptop here today, you could have some of them here right now?
A. Yes.
Q. So basically you have those
attorney/client privileged calls sitting in your laptop, right, until you have erased them?
A. Correct.
Q. Wherever those laptop is, those sacred
private calls are¡ right?
A. Yes.
Q. Okay. Now, next question. What about
the disk? Do you destroy the entire disk?
A. Yes.
Q. Well, now let me ask you this. How can
that possibly be true? If you have a disk jail call,
Kenneth Andersen, November 15th, November 22nd. Call November 23rd at 8 0 i clock at night is from Kenny driving me crazy on a Friday night for two hours wanting to talk about his case when i just want to do nothing more than have Vodka Red Bull, now
A. I -- I don i t maintain those calls.
Q. Right. But they are on the disk¡ right?

Case O:~£W~~LE Document 1-2 Filed 10/15/2008 Page 35 of ~ 6

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They are on a disk. That is how they get to your hard

2 drive.

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A. On a disk that is provided to me by

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Becker County.

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Q. Right. So you listen to the one phone

6

callan your hard drive or you download it to your hard

7

drive. Where is the disk then? There is disk of two

8

weeks worth of calls; right?

9

A. Right.

10

Q. Some of those calls are attorney/client

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privileged calls; right?

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A. Right.

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Q. Some of those calls aren't; right?
A. Right.

15

Q.

You can't download from

or you can't

16 erase a disk you can i t erase an item from a disk?

17

A. No.

18

Q. What happens to the disk? Where are

19

those sacred private calls now then?

20

A. I break them.

21

Q. SO you break the entire disk after you

22

download --? You telling me that you break the entire

23

disk? You download it into your computer and then you

24 break it?

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A. Download it, make sure it is downloaded,

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and then once I have gone through the information, then that disk is no longer -- it is no longer important to
us, and I break that disk because it contains your
calls.
Q. Oh, because it contains my calls? Okay.
A. Well, it contains all the calls.
Q. And then what? Then how does Mr. Zdrazil get that disk?
A. Mr. Zdrazil should get the disk that
contains the Kenneth Andersen calls.
Q. How is that disk made?
A. The edited calls.
Q. How does that get made?
A. I make it.
Q. You make it?
MR. DURIN: Okay. I don i t have any
further questions. THE COURT: Mr. Zdrazil.
MR. ZDRAZIL: No questions, Your Honor.
THE COURT: Thank youi sir. You can
step down. MR. ZDRAZIL: The State has no further
wi tnesses i Your Honor. MR. DURIN: If I can just -- Just if
I can just briefly say something on that issue.

Case 0:08-cv-05687 -ADM-RLE Document 1-2 Filed 10/15/2008 Page 37 of 39 8

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They can't record my calls. They can 't record his calls. He can 1 t put on a defense knowing that every single phone call made to his attorney is being recorded. That i s -- that is beyond outrageous, beyond outrageous. And then they sit here and they tell
you, well, first they told us, well, we don i t fail to
disclose information, and we don't lie to get a search warrant. Now we don i t listen to your phone calls. Come on. They are recording every single phone call to myself, my partner, and my associate. That is so violative of statute, per sei hundred dollar -- under the statute a hundred dollar violation per incident. That alone, this violation is egregious and so fundamental that I don i t even know what to say. I have never heard of such a thing. I never have. I am absolutely dumfounded that they have a policy, No. 1 i of recording all attorney calls that are on a cell phone even though they know they are attorneys. It is not in the handbook. And we are absolutely prejudiced by that and we cannot -- he cannot get a fair trial, and we cannot defend this case and he cannot have a meaningful relationship and meeting with his attorneys. He
simply And if I can have just half a secondi Your
Honor. You know i we can i t prepare for trial. We can 't
plan our defense. We can i t speak - - we can't speak to

Case 0:08-cv-05687 -ADM-RLE Document 1-2 Filed 10/15/2008 Page 38 of 399

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each other in private. Every time he calls me now I

2 say, Kenny, I can't talk to you right now. I am afraid,

3 because I know they are recording these calls. This is

4 not -- this is not a jaywalking case. This is a murder
5 case where the rest of his life is at stake, the rest of

6 his life. And they are recording everything he says.

7 That is shameful and outrageous and violative of every

9 Tha t's al i . 8 Sixth Amendment principle I can think of.

10

THE COURT: Mr. Durkin, I can tell you

11 that no call will be recorded again on any of those cell

12 phone numbers or land lines to his attorneys, regardless

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of what happens here. The jail will stop doing that

14 immediately. So whatever happens from now on, you can

15 feel very comfortable that those calls will not be
16 recorded.
17 Is that Clear, gentlemen?

18

MR. ZDRAZIL: It is, Your Honor.

19

THE COURT: Any response you want to

20 make, Mr. Zdrazil?

21

MR. ZDRAZIL: Only i Your Honor f and I

22 assume you are going to want a brief on this.

23

THE COURT: I am.

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MR. ZDRAZIL: I am not going to spend a

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lot of time, but I think I have to say that Mr. Durkin

Case 0:08-cv-05687 -ADM-RLE Document 1-2 Filed 10/15/2008 Page 39 of 310

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didn't even feel this was important enough to ask that

2

the numbers be blocked until December, and it is

3

disingenuous to now be as self-righteous as he is.

4

MR. DURIN: Because never in my

5

life --. Because we just assumed that attorney/client

6

calls weren' t recorded because that's how it pretty much

7 goes in every county. And if they are subj ect to

8 recording, they will tell you that they are subj ect to

9

recording. They will let you know. Nobody ever told us

10

and we have been battling with Reliance. So it is a

11

little disingenuous to sit here and say, oh, it means

12

nothing to me because I didn't ask for it. I asked for

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it and went crazy as soon as we found out. And then, as

14

the Affidavit in my motion indicates, we were told that

15

it was a done deal when we submitted those numbers.

16

And I respectfully request that his bail

17

be reduced to maybe 100 or $200,000 so we can prepare a

18

defense and so he

can have a fair trial. For that

19

reason alone, coupled with everything else, I think that

20

everything is so cumulative at this point that there is

21

really no other alternative, and I know that we are

22

going to have to brief that issuei but I just want to

23

make that right now i Your Honor.

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THE COURT: You have one issue left?
MR. DURIN: We do. It is the change of

 
 FOR IMMEDIATE RELEASE

CONTACTS:

Mara R. Thompson Sprenger + Lang, PLLC (612) 486-1820

Jeffrey Abrahamson Sprenger + Lang, PLLC
(612) 486-1817

Sprenger + Lang Announces Class Action Lawsuit Against Becker County, Minnesota for Monitoring and Recording Attorney/Client Privileged Telephone Calls

Minneapolis, MN (October 15, 2008) - Sprenger + Lang, PLLC announced today that it has filed a civil rights class action lawsuit in the United States District Court for the District of Minnesota against Becker County, Minnesota and several law enforcement officials. The lawsuit alleges that Becker County illegally monitored and/or recorded confidential and privileged telephone calls between inmates at the jail
and their attorneys.

According to the complaint, inmates of the Becker County jail and attorneys representing inmates are informed in writing that attorney/client telephone calls are confidential and are not subject to monitoring or recording. Based on this written guarantee of privacy and attorney/client privilege, inmates and their
attorneys have used the jail's telephones to discuss confidential details of the inmates' cases, including defenses and legal strategies.

The complaint alleges that information obtained from the illegal monitoring and recording of
attorney/client privileged telephone calls may have been used against the inmates during the County's
prosecution of the inmates' criminal cases. The plaintiffs, a former inmate and two criminal defense attorneys, allege that the Becker County jail's practice of monitoring and recording attorney/client privileged telephone calls violates their constitutional rights, and both federal and state law.

"The right to the assistance of an attorney when a person is charged with a crime and the right to have private, confidential communications with that attorney are basic rights protected by the U. S. Constitution. The Becker County jail's practice of monitoring and recording attorney/client privileged communications violates these fundamental rights," said Mara Thompson of Sprenger + Lang, one of the attorneys representing the plaintiffs.

ABOUT THE FIR

Sprenger + Lang, PLLC, with offces in Minneapolis and Washington, D.C., has obtained some of the country's largest gender, age, and race discrimination judgments on behalf of tens of thousands of discrimination victims. Sprenger + Lang has successfully represented classes of plaintiffs against companies
such as Morgan Stanley, Burlington Northern, CBS, c.H. Robinson, Northwest Airlines, First Union, Amtrak, and Ceridian Corporation. Sprenger + Lang has also litigated large cases involving employee benefit claims, including claims under the Employee Retirement & Income Security Act (ERISA), Fair Labor Standards Act
(FLSA), and the Worker Adjustment and Retraining Notification Act (WAR). The firm is featured in the book Class Action, which inspired the award-winning fim North Country. Sprenger + Lang is also committed to helping protect the rights of consumers through class action litigation. Our cases in this area include claims of illegal practices in student loan processing, home mortgage servicing, and consumer service contracts. Sprenger + Lang has the resources to aggressively investigate and pursue relief on behalf of consumers who have been

defrauded, overcharged and otherwise taken advantage of by companies large and smalL. More information is available on the firm's website ww.sprengerlang.com.
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