Ness v. City of Bloomington

Background

Sally Ness challenged Minnesota Statute § 609.749, subdivision 2(2), which criminalized harassment by following, monitoring, or pursuing another person, and Bloomington Ordinance § 5.21(24), which prohibited intentionally photographing or recording a child in a city park without the consent of the child’s parent or guardian. Ness argued that both provisions were unconstitutional on their face and as applied to her First Amendment right to film and photograph in a public forum. She also asserted free-speech and due-process claims under the First and Fourteenth Amendments through 42 U.S.C. § 1983.

Ness alleged that she filmed and photographed traffic, students, and activity near the Dar Al–Farooq Center, Success Academy, and Smith Park to document possible violations involving the Center’s and school’s use of public and private facilities. In August 2019, officers told Ness that she had a right to film but warned that filming intended to intimidate or harass people could create a legal problem. A later police investigation was submitted to the Hennepin County Attorney’s Office, which declined to bring charges. The City also declined to prosecute Ness for her past conduct.

Rulings on the motions to dismiss

The court granted Michael O. Freeman’s motion to dismiss. Ness sued Freeman in his official capacity as the government official responsible for investigating and prosecuting the harassment law. The court held that Ness lacked Article III standing, which requires a concrete injury, a connection between that injury and the defendant’s conduct, and a likelihood that a favorable decision would remedy the injury. The court found that Ness’s intended conduct involved monitoring an issue or physical area, not tracking or monitoring a particular individual, so the harassment law did not prohibit the conduct she said she intended to undertake. The court also found no credible threat of prosecution because the City and County Attorney had declined to prosecute her, and the officers’ statements and the detective’s investigation did not amount to such a threat. Because Ness lacked standing, the court did not decide whether her complaint stated a claim against Freeman under the rule governing failure to state a claim.

The court also granted the motion to dismiss filed by the City of Bloomington, Troy Meyer, and Mike Roepke. The court held that Ness likewise lacked standing to challenge the harassment law. As to claims for damages against the officers, the court applied qualified immunity, a protection that generally prevents government officials from being held personally liable unless they violated a constitutional or statutory right that was clearly established at the time. The court found that the officers did not stop Ness from filming and that, even if they had violated her First Amendment rights, the specific right to record nonconsenting private individuals in the circumstances was not clearly established.

The court held that Ness had standing to challenge the City Ordinance because her planned conduct would violate it and the City had not disavowed an intent to enforce it. But the court rejected her First Amendment facial challenge. It concluded that the ordinance was content-neutral because it did not distinguish based on the photographer, the use of the recording, or the message conveyed. The court found that the City had important interests in protecting children’s privacy and safety and coordinating competing uses of city parks. It further concluded that the ordinance was narrowly tailored and left open alternative ways to gather and communicate information, including recording from public sidewalks, public streets, or private property outside a park.

The court also rejected Ness’s First Amendment as-applied challenge, reasoning that the ordinance’s neutral text controlled and that her allegations showed she could gather the information she sought from places outside the park. The court dismissed her Fourteenth Amendment due-process claim because her complaint did not identify which language in the ordinance was vague or explain how it failed to provide fair warning or clear standards.

Summary-judgment motion and disposition

Because the defendants’ motions to dismiss were granted in their entirety, the court denied Ness’s motion for summary judgment. The order granted Michael O. Freeman’s motion to dismiss, granted the City of Bloomington, Troy Meyer, and Mike Roepke’s motion to dismiss, denied Sally Ness’s motion for summary judgment, and directed that judgment be entered.