Opinion
Civ. No. 02-4274 (JNE/JGL).
February 14, 2005
David T. Redburn, Esq., Redburn Law Office, appeared for Plaintiffs Richard Dale Wise and Mga Susu, Inc.
Jason J. Kuboushek, Esq., Jon K. Iverson, Esq., and Paul D. Reuvers, Esq., Iverson Reuvers, LLC, appeared for Defendants Greg Peterson, Richard Doe, and the City of Richfield.
Timothy S. Skarda, Esq., Minneapolis City Attorney, appeared for Defendant the City of Minneapolis.
ORDER
This is an action by Richard Dale Wise and Mga Susu, Inc. (collectively, Plaintiffs) against Officer Greg Peterson and the cities of Richfield and Minneapolis. Plaintiffs allege claims under 42 U.S.C. § 1983 (2000) for violations of the Fourth and Fourteenth Amendments, and under Minnesota state law for compensable taking of property, in relation to the execution of a search warrant at the 418 Club in Minneapolis. The case is before the Court on Officer Greg Peterson's and the City of Richfield's (collectively, Defendants) motion for summary judgment. For the reasons set forth below, the Court grants Defendants' motion in part.
I. BACKGROUND
The 418 Club is a strip club operated by Mga Susu, Inc. Wise and his wife are the sole owners of Mga Susa, Inc. and Wise personally is the sole owner of the four-story property at 418 Third Avenue North in Minneapolis in which the 418 Club is located. Wise leases the basement and first two floors to the 418 Club and uses the third and fourth floors to store supplies and equipment for the 418 Club.
On the night of October 24, 2002, and pursuant to a valid search warrant, officers from Minneapolis, Richfield and Bloomington, entered the 418 Club while it was open to the public. Due to the history of crime at the 418 Club and information that employees and patrons of the 418 Club might possess firearms, SWAT teams from Minneapolis and Richfield entered first, followed by the detectives who conducted the search of the entire building and the roof. A news crew accompanied the officers. Wise was not present during the search.
II. DISCUSSION
Summary judgment is proper "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Section 1983 Claims
Plaintiffs allege § 1983 claims against Officer Peterson as an individual and both the City of Minneapolis and the City of Richfield. The Court will consider each in turn.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .42 U.S.C. § 1983.
1. Officer Peterson
In Count One of the Complaint, Plaintiffs allege that Officer Peterson violated their constitutional rights by illegally expanding the search into areas beyond the scope of the search warrant, engaging in excessive force, causing unnecessary damage to property during the search, and allowing a news crew to be present during the search. Officer Peterson denies Plaintiffs' allegations and asserts that he is entitled to qualified immunity.
The doctrine of qualified immunity protects state actors from civil liability when "`their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When faced with an assertion of qualified immunity in a suit against an officer for an alleged constitutional violation, a court must first consider whether the facts, taken in the light most favorable to the party asserting the injury, could show the officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). Only if a constitutional violation could be established should a court then go on to consider whether the right was clearly established. Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. In determining whether an officer is entitled to qualified immunity, the Court must consider "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989); see Winters v. Adams, 254 F.3d 758, 765 (8th Cir. 2001).
First, Plaintiffs assert that Officer Peterson exceeded the scope of the warrant by searching the entire building. Specifically, Plaintiffs argue that because the 418 Club technically leases only the basement and first two floors, the search of the entire property was unlawful. The Court rejects this argument. Officer Peterson was executing a valid search warrant for the 418 Club. The warrant described the premises to be searched as follows: "418 Club, 418 3rd Avenue North, Minneapolis, MN." The warrant also described the following property and things to be searched:
Bank account statements, W-2 and W-4 forms, employee lists, schedules, employee ID's, employee photo's, and contracts, keys to safe deposit boxes; any on-site safes, other documentation of proceeds from promoting of juvenile nudity and/or sexual activity material including photographs, photographic film, books, magazines and videos; pagers, phone bills, pager bills, phone records, or other frequency detectors, or other electronic equipment used in pornographic promotion of juveniles; computers, disks, and cameras used in pornographic activity; Sexual industry items such as; condoms, clothing, dildos, vibrators, lotions [sic] lubricants. Any and all equipment, including signage, used to facilitate the business of prostitution under the names [sic] of 418 CLUB.
The entire property, which shared a single mailing address, was used as a single entity and Wise, the owner of the 418 Club, owned and exercised control over the entire building. Moreover, Wise used the third and fourth floors to store supplies and equipment for the 418 Club. Therefore, it was reasonable for Officer Peterson to believe that objects subject to the search warrant could have been found on any floor of the building, making it proper to search the entire building. See United States v. Ross, 456 U.S. 798, 820 (1982) ("A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found."); see also United States v. Butler, 71 F.3d 243, 249 (7th Cir. 1995). The evidence in the record, even when viewed in the light most favorable to Plaintiffs, reveals that Officer Peterson's actions in searching the entire building did not violate Plaintiffs' rights and, at a minimum, were objectively reasonable.
Second, Plaintiffs assert that the police officers used excessive force and caused unnecessary property damage while executing the search warrant. Specifically, Plaintiffs claim that during the search, police officers entered the 418 Club with their guns drawn, discharged firearms and destroyed or damaged security doors and other property. While Wise testified during his deposition that his property was damaged during the search, Plaintiffs offer no evidence, through affidavit or otherwise, from any person who was actually present during the search. Therefore, there is no competent evidence regarding the actions of the officers, and particularly those of Officer Peterson. Instead, Plaintiffs rely solely on Wise's hearsay statements describing a search he did not witness first-hand. There is no evidence in the record demonstrating that Officer Peterson discharged a weapon, used excessive force or inflicted any unnecessary property damage during the search.
In fact, Officer Peterson's report indicates that no firearms were discharged by any Richfield officer.
Finally, Plaintiffs assert that the presence of the news crew during the search violated their constitutional rights. The United States Supreme Court has determined that the presence of a news crew during the execution of a warrant in a private residence (or residential property) violates the Fourth Amendment. See Wilson v. Layne, 526 U.S. 603, 604 (1999); Hanlon v. Berger, 526 U.S. 808, 810 (1999). The circumstances present here, however, differ from those in Wilson and Hanlon. Specifically, both Wilson and Hanlon involved searches of private or residential property, where one's expectation of privacy is at its highest. See Wilson, 526 U.S. at 610-12; Hanlon, 526 U.S. at 810-11. Plaintiffs have not called to the Court's attention any controlling authority indicating that this protection extends to a commercial property during business hours when the property is open to the public. Because commercial property is treated differently than private or residential property for purposes of evaluating a Fourth Amendment claim, see Minn. v. Carter, 525 U.S. 83, 90 (1999), it is not clear that Plaintiffs have alleged a constitutional violation. Moreover, a reasonable officer could have believed that a news crew could lawfully accompany the officers on the search of the 418 Club, particularly in light of the fact that the 418 Club was open to the public at the time of the search. Therefore, the Court finds that even if Plaintiffs could show that Officer Peterson violated a constitutional right by allowing a news crew to attend the search, this constitutional right was not clearly established at the time the search was executed. See Wilson, 526 U.S. at 617-18 (holding that officers were entitled to qualified immunity when state of the law was not clearly established).
In support of their § 1983 claim, Plaintiffs also cite to parallel federal and state statutes regarding who is authorized to serve a search warrant. See 18 U.S.C. § 3105 (2000); Minn. Stat. § 626.13 (2002). The federal statute, however, does not govern Officer Peterson's actions here, as he was executing a non-federal warrant and no federal agents were involved. Furthermore, the state statute, on its face, only addresses those parties authorized to serve a warrant. There is no dispute that the news crew did not serve the warrant on the 418 Club. Therefore, even if this statute could conceivably be interpreted to prohibit the presence of a news crew in a commercial building during a search, that prohibition was not clearly established at the time of the search.
In addition, the Court notes that a violation of state law does not by itself state a claim under § 1983. See, e.g., Ebmeier v. Stump, 70 F.3d 1012, 1013 (8th Cir. 1995).
For the above reasons, the record does not support Plaintiffs' contention that Officer Peterson violated a clearly established constitutional right. Therefore, Officer Peterson is entitled to qualified immunity. Accordingly, the Court grants Defendants' motion as to Count One of the Complaint.
2. The City of Richfield
In Count Three of the Complaint, Plaintiffs allege a § 1983 claim against the City of Richfield based on a purported policy or custom of: (1) inadequate supervision and training; (2) exhibiting deliberate indifference to constitutional rights of persons and businesses; and (3) failing to properly investigate citizen complaints of police misconduct. Specifically, Plaintiffs claim that when the police officers executed the search warrant at the 418 Club, they did so with a disregard of the rights of Plaintiffs, and the fact that all of the officers allegedly behaved in this way would allow a jury to find that it is the policy and custom of the Richfield Police Department to conduct searches in an unconstitutional manner.
A § 1983 suit against a governmental entity employer is commonly referred to as a Monell claim. In Monell v. Department of Social Services, 436 U.S. 658 (1978), the United States Supreme Court held that municipalities and other local governmental entities could be sued under § 1983 only for the entity's unconstitutional or illegal policies or customs. Monell, 436 U.S. at 694. For a municipality to be liable, a plaintiff must prove that a municipal policy or custom was the "moving force [behind] the constitutional violation." Id. A policy involves a deliberate choice to follow a course of action made from various alternatives by an official who has the final authority to establish governmental policy. See Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir. 1998). Alternatively, a "custom or usage" is demonstrated by: (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 that misconduct; and (3) the plaintiff's injury by acts pursuant to the governmental entity's custom, i.e., proof that the custom was the moving force behind the constitutional violation. Id.
Viewing the evidence in the light most favorable to Plaintiffs, the Court finds that Plaintiffs have failed to identify a genuine issue of material fact to support their Monell claims. On the record before the Court, there is no evidence that the City of Richfield maintains a widespread policy or custom of unconstitutional searches or seizures, failed to properly train and supervise its officers, or failed to properly investigate citizen complaints of police misconduct. Plaintiffs rely entirely on the allegations made in their Complaint and have failed to meet their burden of submitting evidentiary materials that designate specific facts showing that there is a genuine issue for trial. See Matsushita, 475 U.S. at 587. Accordingly, the Court grants Defendants' motion with respect to Count Three.
3. The City of Minneapolis
Plaintiffs' remaining § 1983 claim is against the City of Minneapolis, which is alleged in Count Two of the Complaint. At the hearing on this motion, counsel for the City of Minneapolis stated that the City of Minneapolis joined in the arguments made on behalf of the moving Defendants. Counsel for Plaintiffs indicated that it was possible that the City of Minneapolis could be dismissed from the action but was unwilling to agree to its dismissal at that time. It appears to the Court that the City of Minneapolis intended to make an oral motion for summary judgment. Given the paucity of evidence in the record concerning Plaintiffs' § 1983 claim against the City of Minneapolis and recognizing that it appears that the City of Minneapolis was a "tag-along" defendant from the point of view of the Plaintiffs, the Court grants the City of Minneapolis's implied motion for summary judgment with leave for Plaintiffs to file a motion to reconsider within 10 days.
C. State-Law Claims
In Count Four of the Complaint, Plaintiffs assert a Minnesota state-law claim for compensable taking of property against the cities of Richfield and Minneapolis. The basis for the Court's jurisdiction over these claims is 28 U.S.C. § 1367(a) (2000), which permits a district court to exercise supplemental jurisdiction over claims that are part of the same case or controversy as the claims that fall within the district court's original jurisdiction. A district court may, in its discretion, decline to exercise supplemental jurisdiction when "all claims over which it has original jurisdiction" have been dismissed. 28 U.S.C. § 1367(c)(3); see Franklin v. Zain, 152 F.3d 783, 786 (8th Cir. 1998) (holding district court did not abuse its discretion in declining to exercise supplemental jurisdiction over state-law claim pursuant to section 1367(c)(3)). Indeed, according to the Supreme Court, "if the federal claims are dismissed before trial . . . the state claims should be dismissed as well." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). The state courts of Minnesota, rather than federal courts, should rule on issues of Minnesota law. See id. In this case, Defendants are entitled to summary judgment on all claims that fall within the Court's original jurisdiction. The Court declines to exercise its supplemental jurisdiction over, and therefore dismisses without prejudice, Plaintiffs' remaining state-law claim.
III. CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
1. Defendants' Motion for Summary Judgment [Docket No. 11] is GRANTED IN PART consistent with this Order.
2. Counts One and Three of Plaintiffs' Complaint [Docket No. 1] are DISMISSED.
3. Count Two of Plaintiffs' Complaint [Docket No. 1] is DISMISSED with leave for Plaintiffs to file a motion for reconsideration within 10 days.
4. Count Four of Plaintiffs' Complaint [Docket No. 1] is DISMISSED WITHOUT PREJUDICE with leave to file a motion for reconsideration within 10 days solely with respect to the City of Minneapolis.
5. If no motion for reconsideration is received within 10 days, Plaintiffs' Complaint [Docket No. 1] will be DISMISSED WITH PREJUDICE.