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Demuth et al. v. Fletcher et al.: US District Court : CIVIL PROCEDURE | 1ST AMENDMENT - temporary restraining order denied; money damages will suffice if appropriate; mere injunction in future to obey Constitution generally too broad

Civil No. 08-5093 (ADM/RLE)
Albert Turner Goins, Sr., GOINS LAW OFFICES, LTD., Grain
Exchange Building, Suite 378, 301 Fourth Avenue, Minneapolis, MN
55415, and Rick L. Petry, RICK L. PETRY & ASSOCIATES, P.A., 301
4th Avenue South, Suite 378N, Minneapolis, MN 55415, for plaintiffs.
Darwin Lookingbill, Phil Carruthers, and Heidi Westby, Assistant County
Kellogg Boulevard, Suite 560, St. Paul, MN 55102, for defendants.
This request for a temporary restraining order arises from seizures of written
material from the plaintiffs in the days preceding the start of the Republican National
Convention in St. Paul in September 2008. Plaintiffs are individuals who planned to be
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involved in organized protests during the political convention. The complaint was filed
during the evening hours of September 3 and the Court received written submissions and
held a hearing early in the morning of September 4, the last scheduled day of the
Plaintiffs seek an order enjoining the defendant law enforcement officials from
prosecuting the plaintiffs on the basis of the seized literature and an order compelling
release of most of the copies of the seized written materials. The Court considered the
complaint, the motion, and other written submissions of plaintiffs, in addition to the
arguments of the parties and seventeen exhibits introduced at the hearing. For the
reasons set forth below, the Court denies the motion for a temporary restraining order.
Plaintiffs Demuth, Lundberg, Kutz, Clough, Collura, and Fahlstrom are
individuals who allege that they seek to disseminate information as part of their exercise
of First Amendment rights during the Republican National Convention in St. Paul,
Minnesota, from September 1 through September 4, 2008. At the hearing, plaintiffs
represented that they are all joint and collective owners of written and other materials at a
site on Smith Avenue in St. Paul and other Twin Cities locations.
The defendants include Robert Fletcher, the Ramsey County Sheriff, a number of
named Ramsey County deputy sheriffs, and unnamed St. Paul and Minneapolis Police
Officers. All individual defendants are sued in their individual and official capacities.
Ramsey County and the Cities of St. Paul and Minneapolis are also named as defendants.
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Search warrants were approved by judges in Ramsey and Hennepin Counties and
executed on August 29 and 30. The following addresses were searched:
627 Smith Avenue South, St. Paul, MN
2301 23rd Avenue South, Minneapolis, MN
3500 Harriet Avenue South, Minneapolis, MN
3240 17th Avenue South, Minneapolis, MN
Pursuant to the warrant, a significant amount of material was seized. At issue in this
case, however, is only written material taken during the search and detailed in the
Affidavit of Geneva Finn (Docket No. 7). Some of the materials constitute plans for
demonstrations during the Convention, while much of the material is more general and
addresses subjects including conducting effective protests, protecting oneself against
harm during demonstrations, and encouraging participation in activities described as
On September 1, the parties negotiated over return of the seized materials and law
enforcement agreed to return some of the information taken. The parties disagree to
some extent over what materials were reviewed at that meeting. On September 2, a
motion was brought under Minn. Stat. 626.21 for return of items seized during the
execution of the search warrant. Ramsey County District Judge Kathleen Gearin denied
the motion, finding that the challenged material may be necessary for the criminal cases
already filed against eight defendants, some of whom are plaintiffs in this action.
Plaintiffs bring this lawsuit alleging that defendant individuals and entities
violated 42 U.S.C. 1983, by acting under color of law as Minnesota peace officers and
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intentionally and recklessly violating plaintiffs First Amendment rights to engage in
speech and assembly; 42 U.S.C. 1985, by acting with other law enforcement officers as
part of a tacit agreement or conspiracy to refuse to vindicate or protect constitutional
rights of disfavored persons, referred to as anarchists in this case; 42 U.S.C. 1983, by
tacitly or overtly sanctioning, as part of an alleged policy, procedure or custom, the
alleged pattern or practice of police misconduct; and 42 U.S.C. 1986, by failing to
prevent such agreement and conspiracy to violate rights under 42 U.S.C. 1983 and
Plaintiffs allege that the seizure of the protected material has chilled the exercise
of their First and Fourteenth Amendment rights to distribute literature, to disseminate
ideas, to peacefully assemble, and to redress grievances. Further, plaintiffs Demuth and
Lundberg fear prosecution as a result of possession of the protected materials. All
plaintiffs claim that the search warrants were not narrowly drawn to avoid the seizure of
material protected by the First Amendment.
Plaintiffs now seek a temporary restraining order to enjoin defendants 1) from
prosecuting plaintiffs for possession and distribution of political literature, and 2) to
release to plaintiffs documents that were seized during execution of the search warrants.
The Court must consider four primary factors in determining whether a temporary
restraining order should be granted under Rule 65(b): 1) the threat of irreparable harm to
the moving party; 2) the likelihood of the moving partys success on the merits; 3) the
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state of balance between the alleged irreparable harm and the harm that granting the
temporary restraining order would inflict on the other party; and 4) the public interest.
Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981). This
analysis is designed to preserve the status quo until the merits of the case are determined.
A. Threat of Prosecution
Plaintiffs first request that a temporary restraining order issue to enjoin the
defendants from future prosecution of plaintiffs for the possession or distribution of
political literature similar to that seized during the searches on August 29 and August 30.
Plaintiffs argue that the alleged overreaching by the defendants in seizing pamphlets and
written materials during the search has effectively chilled [plaintiffs] rights to
participate in their First Amendment rights. (Docket No. 1.)
Plaintiffs request extends beyond the parameters of the Courts equitable power.
While state action may be enjoined to preserve First Amendment rights, such injunctions
have occurred only in very limited circumstances. Under Allee v. Medrano, 416 U.S.
802, 815 (1974), the Court may issue injunctive relief to prevent the threat of continued
harassment when there is a pattern of persistent police misconduct in which the plaintiffs
First Amendment rights are threatened. The Allee Court emphasized, however, that
police misconduct must be part of a persistent pattern that seeks to limit the
constitutional rights of the party seeking the temporary restraining order. Id. Notably,
[i]solated incidents of police misconduct under valid statutes would not, of course, be
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cause for the exercise of a federal courts equitable powers. Id. In the instant case,
plaintiffs merely point to four coordinated events in a two-day period in which police
officers seized written materials. Plaintiffs have not been further impacted, and no
pattern of harassment of plaintiffs is established by the record in this case. Although the
validity of the officers search has been questioned, it was specifically authorized by two
state judges, and affirmed by another state court judge, at least in part, after the fact.
More importantly, plaintiffs have failed to demonstrate irreparable harm if the
temporary restraining order is not issued. Plaintiffs rely on Elrod v. Burns, 427 U.S. 347,
373 (1976), to argue that deprivations of First Amendment rights for even minimal
periods of time will lead to irreparable injury. While defendants counsel noted at
argument that plaintiffs actions were still subject to review by prosecutors, there seems
little threat that plaintiffs would be prosecuted for their possession of these written
materials. Further, a threat of future prosecution constitutes only mere possibility of
deprivation. At this time, plaintiffs can show no irreparable harm if injunctive relief is
not granted.
If plaintiffs are subject to future prosecutions in which they claim violations of
First Amendment rights, they will find appropriate redress in the courts. To issue a
temporary restraining order as requested would simply require enjoining defendants to
act within the bounds of the Constitution, a broad request to abide by a clearly understood
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B. Return of Materials
Plaintiffs also seek injunctive relief to order the defendants to return materials
seized on August 29 and 30. On September 3, 2008, Ramsey County District Judge
Kathleen Gearin, in a motion relating to the prosecution of eight individuals for felony
conspiracy to riot, issued a decision permitting law enforcement officials to retain the
written materials seized. Judge Gearin reasoned that the full collection of disputed
materials, including multiple copies of some of the documents, should be retained by law
enforcement to preserve claims by the criminal defendants that the police officers
overreached their authority under the search warrant.
The Court is reluctant to disturb the Minnesota state court decision, even though
the Court may not fully agree with the state courts reasoning. It seems a bit far-fetched
to believe that in some cases, hundreds of copies of a document needs to be retained as
evidence. A careful register of the numbers of documents seized seems sufficient, and it
is not clear if the defense counsel for the charged individuals has requested that multiple
copies be retained. The Court appreciates the defendants view that the context of the
seizure of documents needs to be fully understood, but fails to appreciate the need for
many copies of the documents. The Court encourages the parties to confer regarding a
return of extra copies seized as soon as possible.
However, even if seizure of multiple copies is found unnecessary, the Court will
not order an injunction because plaintiffs have failed to demonstrate sufficient irreparable
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Plaintiffs have argued that the inability to disseminate the seized materials during
the 2008 Republican National Convention will cause irreparable harm to plaintiffs and
their associates. Plaintiffs, however, did not have these materials during the first three
days of the Convention before this case was filed. It is difficult to see how any
substantial, additional irreparable harm will be inflicted on plaintiffs if they are without
those materials for the final evening of the Convention, particularly in light of the
substance of the documents. Such an initial determination does not preclude the plaintiffs
from obtaining a later injunction to release the seized materials or obtaining an award of
damages for their seizure.
The Court has received only a sampling of the seized documents and has not had
time for a complete review of many pages. Much of the material seems harmless, but
some of it is mixed with material likely to cause great concern to law enforcement
seeking to preserve the peace during a national political convention. Again, the Court
encourages the parties to work to achieve a mutual agreement concerning the release of
additional seized materials.
The balancing of interests between the First Amendment and the legitimate needs
of law enforcement is rarely an easy call. However, an injunction against prosecution is
rarely an appropriate exercise of the Courts power. Further, the Court is satisfied with
the state courts handling of the requested return of documents, particularly in light of
defendants demonstrated willingness to return materials. Any proven violations of the
Constitution can be redressed adequately with money damages. The Court need not
further analyze the remaining Dataphase factors.
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Based on the foregoing, all the records, files, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiffs Motion for a Temporary Restraining Order
[Docket No. 2] is DENIED. The parties should contact Judge Montgomerys chambers
to establish a briefing schedule for a preliminary injunction motion.
DATED: September 4, 2008 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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