Berry v. Hennepin County

Background

The case involves nine individual plaintiffs experiencing unsheltered homelessness in Hennepin County and ZACAH, a nonprofit organization assisting Minnesota residents at risk of homelessness. Plaintiffs alleged that Hennepin County, Minneapolis, the Minneapolis Park and Recreation Board (MPRB), government officials, and unnamed police officers conducted encampment sweeps in Minneapolis public parks and seized and destroyed property belonging to people living there.

The amended complaint asserted five counts: unlawful seizure under the Fourth Amendment and Minnesota Constitution; invasion of privacy under those provisions; procedural due process under the Fourteenth Amendment and Minnesota Constitution; substantive due process under those provisions; and conversion under Minnesota law. This order addressed the motion to dismiss filed by MPRB, Superintendent Al Bangoura, and Park Police Chief Jason Ohotto. Because the officials had already answered, the court treated the failure-to-state-a-claim portion of the motion as a motion for judgment on the pleadings under Rule 12(c), applying the same standard as a Rule 12(b)(6) motion.

Municipal liability

The plaintiffs pursued liability under 42 U.S.C. § 1983, which allows a claim against a person acting under state law who deprives someone of constitutional rights. A municipality generally is not liable merely because one of its employees allegedly acted unlawfully, but it may be liable when an official policy or unofficial custom causes the constitutional injury.

The court held that the plaintiffs alleged enough facts to support a claim against MPRB based on an official policy. The complaint identified MPRB resolutions giving the superintendent authority to restrict, limit, or close encampments in exigent circumstances, and alleged that Bangoura and Ohotto carried out or enforced sweeps under those policies. The court therefore denied the motion to dismiss for failure to adequately plead municipal liability against MPRB.

The court dismissed the claims against Bangoura and Ohotto in their official capacities because those claims duplicated the claims against MPRB itself.

Qualified immunity

Qualified immunity can protect government officials from personal liability for damages unless their conduct violated a constitutional right that was clearly established at the time. The court concluded that the plaintiffs had not identified Eighth Circuit precedent or a sufficiently broad consensus of decisions from other courts clearly establishing that Bangoura’s and Ohotto’s alleged conduct was unlawful under the specific circumstances presented.

The court therefore held that Bangoura and Ohotto were entitled to qualified immunity in their individual capacities and granted the motion to dismiss the claims against them individually.

Unlawful seizure of property: Counts I and II

The court analyzed the two seizure counts together because it found no meaningful distinction between them. Although the parties agreed that the individual plaintiffs subjectively expected privacy in their belongings, the court concluded that tents placed unlawfully on public property did not give the plaintiffs an objectively reasonable expectation of privacy that prevented an encampment sweep.

The court separately considered the alleged permanent destruction of property. Taking the allegations as true at this stage, the court determined that MPRB could have cleared the encampments while pursuing public-health and safety goals without permanently destroying the plaintiffs’ belongings. The plaintiffs therefore plausibly alleged unreasonable seizure under the Fourth Amendment and the comparable Minnesota constitutional provision. The court denied the motion to dismiss Counts I and II as asserted against MPRB Defendants, subject to the separate dismissal of claims against Bangoura and Ohotto in their individual and official capacities.

Procedural due process: Count III

Procedural due process generally requires notice and an opportunity to be heard before the government deprives someone of protected property. The plaintiffs alleged that MPRB Defendants seized and destroyed their property without adequate notice, an opportunity to be heard, or a pre- or post-deprivation way to challenge or reclaim it.

The court found that the plaintiffs alleged enough facts to support the claim, including that notice was inadequate. MPRB Defendants did not argue that providing advance procedures was impossible or impracticable. The court therefore denied the motion to dismiss Count III as asserted against MPRB Defendants, again subject to the dismissal of the claims against Bangoura and Ohotto in both capacities.

Substantive due process: Count IV

The court declined to analyze the property-related allegations under substantive due process because the Fourth Amendment specifically addressed the alleged seizures. It dismissed the privacy-based substantive-due-process claim because the plaintiffs did not identify authority recognizing a fundamental right to sleep or erect structures on public land, including when no alternative exists.

The court also dismissed the state-created-danger theory. The plaintiffs alleged that MPRB Defendants created a danger by ejecting them and destroying their property, but the court concluded that the inclement weather and COVID-19 risks cited in the case were not created by the government. The court dismissed Count IV in all respects as asserted against MPRB Defendants.

Disposition

Judge Wilhelmina M. Wright granted in part and denied in part the MPRB Defendants’ motion to dismiss. The order dismissed Count IV against those defendants, dismissed all claims against Bangoura and Ohotto in their individual and official capacities, and denied the motion in all other respects.