At around 7 p.m., in July, 2006, Minneapolis police received word (an anonymous 911 call) complaining about a group of “people covered in make up playing loud music from a boombox” in the heart of downtown Minneapolis. According to the caller, the group’s members were “calling themselves zombies and almost touching people.” Officers responded to the call and arrived on the scene. They found the plaintiffs playing music and dancing as zombies. When approached by the officers (initially two officers, but grown to four responding police officers by this point (“Zombies… need back up…”), the plaintiff/protesters explained that they meant their actions as an anticonsumerist commentary. According to one officer, the plaintiffs were “walking around, coming up close to people,” and pedestrians were “scooting away from them.”
“Almost touching people” and causing pedestrians to “scoot away from them” might be “disorderly conduct” in the minds of some police officers apparently and the anti-consumerist zombies were whisked off to jail. In the booking process at jail, the one anti-consumerist zombie with a prosthetic leg was told to detach it and it was confiscated. The zombie protesters brought actions against the officers based on their First Amendment, Fourth Amendment, Fifth Amendment rights and a handful of state law claims as well.
Back in September, 2008, U.S. District Court Judge Joan Ericksen granted defendants summary judgment on the claims made under state and federal law in connection with the incidents just described. Today, the United States Court of Appeals for the Eighth Circuit, in a per curiam decision, (Colloton, Gibson, Beam) reversed in part. They rejected the First Amendment “retaliation” claim, but reversed the District Court on the Fourth Amendment claim. As for the leg, though (whose confiscation triggered claims under the Fourth Amendment, Fifth Amendment, and under state law claims), “[g]iven the potential that [the plaintiff’s] prosthetic leg could be used as a dangerous weapon, the decision to confiscate his prosthetic leg was objectively reasonable, despite the intrusion on his personal privacy.”
Judge Colloton concurred and dissented in part (see more after the break).
The defendant police officers . . . had probablecause to arrest the plaintiffs for a violation of the Minnesota disorderly conduct statute, Minn. Stat. § 609.72, subd. 1. Nonetheless, the majority reverses the district court’s grant of qualified immunity to these officers on the plaintiffs’ FourthAmendment claim, holding that the officers acted contrary to a ‘narrowing construction’ of the disorderly conduct statute – a construction that has never been adopted by the Supreme Court of Minnesota, and that has been expressly rejected bythe Minnesota Court of Appeals. The majority’s decision, therefore, is contrary to established principles of qualified immunity, which ensure that public officials are not subjected to suit unless they are on notice, through clearly established law, that their conduct is unlawful.