Cole v. Dwyer

Background

Carolyn Cole and Molly Hennessy-Fiske, members of the press, alleged that Minnesota State Patrol troopers assaulted them with pepper spray and blunt-impact projectiles on May 30, 2020, while they were reporting on civil unrest and law enforcement’s response after George Floyd’s death. They alleged that they showed press credentials and told the troopers they were members of the press.

Their original complaint asserted constitutional claims against three unnamed officers and a supervisory-liability claim against Minnesota State Patrol Captain Joseph Dwyer and Lieutenant Timothy Salto. In an earlier order, Judge Patrick J. Schiltz dismissed the claim against Dwyer and Salto without prejudice. The plaintiffs then sought permission under Federal Rule of Civil Procedure 15(a) to amend their complaint. The defendants opposed the amendments as futile, meaning they argued the proposed complaint could not survive a motion to dismiss.

Requested amendments

The plaintiffs sought to:

- Replace John Does 1, 2, and 3 with 74 named members of the Minnesota State Patrol Mobile Response Team “MSP-1” Team and Special Response Team. - Add 10 named “Supervisor Defendants,” including Dwyer and Salto. - Divide the officers into “Assaulter Troopers,” “Cover Troopers,” and “Supervisor Defendants.” - Add allegations about events before and on May 30, 2020. - Add allegations that Dwyer directly participated in the alleged violations. - Add a claim against the Supervisor Defendants based on Baude v. Leyshock. - Reallege a supervisory-liability claim against Dwyer under a direct-participation theory. - Modify the complaint’s counts to assert excessive-force, failure-to-intervene, First Amendment, and supervisory claims against the designated groups and Dwyer.

74 proposed named troopers

The court denied the request to replace the three John Doe defendants with 74 named troopers. The proposed complaint identified the troopers by name, team membership, role, and presence when troopers encountered the plaintiffs, but it did not say which particular trooper used force, which was an “Assaulter Trooper,” which was a “Cover Trooper,” or what any specific trooper did.

The court explained that liability under 42 U.S.C. § 1983, the federal civil-rights statute used for these claims, is personal. A plaintiff must allege a causal connection and direct responsibility between each defendant and the alleged constitutional violation. The court rejected the plaintiffs’ reliance on cases involving identification of officers at the summary-judgment stage because this case concerned permission to amend the complaint, not summary judgment. The existing claims against unnamed officers would remain, and discovery could be used to identify the officers who were personally involved.

The court also found that the proposed allegations did not plausibly show that every member of the group either used excessive force or failed to intervene. The proposed complaint did not allege that every “Assaulter Trooper” used a chemical munition or projectile, or that every “Cover Trooper” saw the alleged force against Cole or Hennessy-Fiske and had an opportunity to stop it.

The court did grant leave to use the terms “Assaulter Troopers” and “Cover Troopers,” to change Count I to an excessive-force claim against unnamed Assaulter Troopers, and to change Count II to a failure-to-intervene claim against unnamed Cover Troopers. It also allowed the plaintiffs to add additional Doe defendants as placeholders for those designations.

Proposed supervisor defendants

The court denied leave to add the nine proposed supervisors other than Dwyer as named defendants. The proposed allegations described the supervisors’ conduct collectively and generally referred to their treatment of the press group, rather than identifying each supervisor’s personal involvement in conduct directed at Cole or Hennessy-Fiske.

The court did allow the plaintiffs to use the term “Supervisor Defendants” and to add Doe defendants representing that group.

Claim based on failure to intervene

The court granted leave to add a claim against the Supervisor Defendants based on the theory recognized in Baude v. Leyshock. The proposed complaint alleged that the supervisors observed or intended the use of excessive force, did not intervene, issued orders allowing subordinates to use excessive force, and sanctioned a coordinated operation involving a tactical line, a smoke screen, and chemical agents.

The court held that these allegations, considered with the other allegations concerning excessive force, stated a facially plausible failure-to-intervene claim. It explained that calling the claim “supervisory liability” was inaccurate; the permitted claim was an excessive-force claim based on an alleged failure to intervene.

Claim against Dwyer

The court granted leave to add factual allegations about Dwyer’s alleged direct participation and to reallege a supervisory-liability claim against him under that theory. The proposed allegations stated that Dwyer planned a mass arrest based on curfew violations, directed officers to clear the area, commanded officers deployed near the Fifth Precinct, and allowed or facilitated the use of chemical munitions.

The court found that these allegations supported a reasonable inference that Dwyer was personally involved in the alleged constitutional violations. It also found that the allegations supplied a factual basis for the claim that Dwyer ordered or directed a subordinate officer to commit an unconstitutional act, addressing deficiencies identified in the earlier dismissal order.

Other allegations and qualified immunity

Because the defendants did not oppose the request, the court granted leave to add factual allegations about events before and on May 30, 2020.

The defendants argued that the Supervisor Defendants were entitled to qualified immunity, a protection that can shield government officials from damages liability when the law was not clearly established or the alleged conduct did not violate a constitutional right. The court stated that the defendants had not shown entitlement to qualified immunity based on the cited decision concerning non-intentional pepper-spray exposure, because Cole alleged intentional pepper-spray exposure and the cited decision did not address projectiles. The court also stated that the defendants’ separate argument required fuller briefing before qualified immunity could be correctly determined.

Disposition

The court granted in part and denied in part the plaintiffs’ Motion for Leave to File Amended Complaint. The plaintiffs were ordered to file an amended complaint consistent with the ruling within 14 days. The order was signed by United States Magistrate Judge John F. Docherty.