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Williams v. Padden et al.: US District Court : 1983 - no Constitutional violation in setting caution flag on address; no burden on second Amendment; no evidence of racial animus

OFFICER ANN PADDEN, in her official and
individual capacity; OFFICER REBECCA
KOPP, in her official and individual capacity;
OFFICER TODD SHERMER, in his official
and individual capacity; and the CITY OF
Case No. 0:07-CV-4210 (PJS/RLE)
Bryan R. Battina, BOCK & BATTINA, LLP, for plaintiff.
M. Alison Lutterman, DULUTH CITY ATTORNEYS OFFICE, for defendants.
Plaintiff Sherrie Williams brings claims for negligence under state law and for violation
of her constitutional rights under 42 U.S.C. 1983 against Duluth police officers Ann Padden,
Rebecca Kopp, and Todd Shermer (collectively, police-officer defendants) and the City of
Duluth. Defendants move for summary judgment on Williamss claims. For the reasons that
follow, the Court grants summary judgment to all defendants.
The facts are vigorously disputed, but, for purposes of deciding 1 defendants summaryjudgment
motions, the Court accepts as true Williamss version of events. The Court also
accepts as true evidence offered by defendants that Williams has not challenged.
The Court does not discuss Williamss interactions with Officer Brian Jones because,
although he was named in the complaint, the parties stipulated to the dismissal of all claims
against him. Stip. of Dismissal [Docket No. 113]; Order of Dismissal [Docket No. 114].
A. The Caution Alert
Williams and her seven-year-old son, along with forty or fifty others, attended a barbecue
in the Morgan Park neighborhood of Duluth on May 10, 2007. Frasier Aff. Ex. A (Williams
Dep.) at 82-83 [Docket No. 96]. Williams left her son with a friend at the barbecue and went to
take a shower at her home in Duluths West End, about eight miles away. Id. at 78-79. While
she was at home, someone was shot in Morgan Park near the site of the barbecue, and one of
Williamss friends called to let her know about the shooting. Id. at 80. Williams returned to
Morgan Park to pick up her son. They got stuck in Morgan Park because of traffic and the police
investigation. Id. at 81-86. When Williams and her son finally arrived home at about 1:00 a.m.,
Williams saw someone riding off on her sons bicycle. Id. at 87. Williams followed the bicycle
thief in her car while calling 911 on her cell phone, but she hung up when the operator asked for
her name. Id. at 87, 92; Padden Aff. [Docket No. 62] Ex. 1 at 1. When she got home, Williams
noticed that the front door of her apartment was open and, suspecting that someone had broken
in, she again called 911. Williams Dep. at 87-88; Padden Aff. Ex. 1 at 1.
Officer Ann Padden of the Duluth Police Department was dispatched to Williamss home
in response to her 911 calls. Padden Aff. Ex. 1 at 1; Padden Aff. 3. Notes in the departments
computer-assisted dispatch system indicated that Williams was agitated and uncooperative.
Padden Aff. Ex. 1 at 1. When Padden arrived at Williamss home, Williams and her son were
waiting outside. Williams Dep. at 76.
Padden asked Williams about the bike. Padden Aff. 5 at 2. Williams said that it had
been stolen by a white, fing, meth-head user. Id. 5 at 2 (alteration in original). Padden
asked Williams to calm down, and Williams said, No, fk that, Im not going to calm down.
Padden Aff. 5 at 2 (alteration in original). Padden also asked Williams why she was coming
home so late and where she had been. Williams Dep. at 89. Williams replied that she had
picked up her son in Morgan Park. Id. at 89-90. Padden (who knew about the Morgan Park
shooting) asked Williams why she was in Morgan Park, whom she knew there, and what she had
been doing there. Id. at 89. At some point, Padden walked through Williamss apartment to
make sure that nobody was inside. Id. at 90-91.
Padden then asked Williams to show her where the bike thief had gone. Id. at 91-92.
Williams agreed to do so but said that she first wanted to get her gun. Id. at 92-93. As Williams
began walking toward her apartment, Padden asked her to stop. Padden Aff. 5 at 3. Williams
replied that she had a fking permit for the gun, id., and offered to show Padden both the
permit and papers that showed that Williams had been the target of threats. Williams Dep. at 92-
Paddens version of the story 2 diverges from Williamss at this point. According to
Padden, she followed Williams to the front door and again asked her to stop. Padden Aff. 5
at 3. Williams said that the gun was in her purse on the couch. As she looked for her permit,
Williams told Padden that she had the gun because she feared her ex-boyfriend would hurt her.
Id. 5 at 3-4. Padden looked at the purse and saw the gun inside. Padden did not take the gun
out of the purse, unload it, or reload it. Padden Id. 5 at 4. Padden told Williams that it was
against the law to keep a gun in a way that a child could gain access to it. Id. Paddens warning
further angered Williams. Id. Padden said that she was just advising Williams of the law and
was not going to charge her. Id.
93. Padden stayed outside while Williams went into the apartment to get her gun.2 Id. at 95.
Williams also gathered the permit and the other papers to show to Padden. Id.
According to Williams, Padden entered Williamss apartment and asked to see the gun
and the permit. Id. at 95-99. When Williams said that the gun was in her purse, Padden grabbed
the purse, pulled out the gun, unloaded it, reloaded it, argued with Williams about what kind of
gun it was, and gave the gun and the purse back to Williams. Id. at 96-102. Padden asked
Williams if she had any more guns in the apartment and why the gun was not in a holster. Id.
at 96, 102. Williams showed Padden her holster and said that she could not wear a holster with
her dress. Id. at 102. Williams never objected to Paddens presence inside her home. Padden
Aff. 5 at 4.
Williams and Padden went back outside, and Padden again questioned Williams about the
Morgan Park shooting. Id. at 102-103. With Williams leading the way, Padden and Williams
then drove to the house that Williams believed the bike thief had entered earlier. Id. at 103-04.
When they arrived, Padden looked around but did not see the bike. Id. at 104; Padden
Aff. 7. Padden told Williams not to confront the suspect and to call the police if she learned
anything more about the stolen bike. Padden Aff. 7. Padden then told Williams to leave, and
Williams returned home. Williams Dep. at 104.
3Kopps version of events differs significantly from Williamss. According to Kopp, she
knocked on the door, and Williams let her in. Kopp Aff. 3. Kopp then told Williams that
medical personnel were on the way and asked if anyone else was in the apartment. Id. Kopp
stayed in Williamss living room the entire time she was there. Id. When Shermer and some
emergency medical technicians (EMTs) arrived, Williams flipped out and would not let the
EMTs care for her son. Id. 4. After paramedics arrived and assessed Williamss son, everyone
left the apartment. Id. 6. Outside, Williams continued to yell and scream, at which point Kopp
threatened to arrest Williams for disorderly conduct if she did not calm down. Id. As noted
below, Kopps version of events is corroborated by affidavits submitted by the EMTs.
Padden contacted the 911 operator to say that Williams was agitated, had a gun, feared
gang retaliation, was in Morgan Park at the time of the shooting, and possibly had a relationship
to the shooting. Padden Aff. 8 at 5. Padden wanted this information to be available to other
officers who might respond to Williamss address in the near future. Id. Although 911 operators
can place what is known as a caution alert or premise event on a particular address, Padden
did not expect the 911 operator to do so, because Padden did not fill out the form that generally
leads to placement of such an alert. Id. 8 at 6. As it happens, however, the 911 operator did
place a caution alert on Williamss address as a result of Paddens call. Id. 9.
B. Williamss Sick Child
A few weeks later on June 4, 2007, at around 2:45 a.m. Williams called 911 to
report that her son had a high fever. Williams Dep. at 131. A dispatcher sent Officer Rebecca
Kopp to Williamss apartment and told Kopp that there was a caution alert on Williamss
address. Kopp Aff. 1-2 [Docket No. 71]. Because of technical limitations of the dispatch
system, Kopp did not know the reasons for the caution alert, only that a caution alert had been
placed. Id.
According to Williams,3 when Kopp arrived, Kopp opened Williamss unlocked front
door without knocking and drew her gun. Williams Dep. at 131-34. Kopp asked Williams if she
4According to the EMTs, Kopp had arrived only moments before they did. Rogers Aff.
3 [Docket No. 73]; Rindal Aff. 2 [Docket No. 74]; Hanson Aff. 2 [Docket No. 75].
Shermer arrived immediately after the EMTs. Rogers Aff. 3. Williams became angry when the
EMTs and Shermer entered her apartment, and she refused to let the EMTs assess her sons
condition. Rogers Aff. 3-4; Rindal Aff. 3; Hanson Aff. 3. The EMTs eventually left
Williamss home and stood in the stairwell while the officers attempted to calm Williams down.
Rogers Aff. 4; Hanson Aff. 4.
had called 911 and then told her to step aside. Id. at 132-33. Kopp spent about a minute walking
through Williamss apartment with her weapon drawn, doing a protective sweep. Id. at 133-34,
139-40. Officer Todd Shermer arrived next. Id. at 140.
Williams asked Kopp in a loud voice why she was there instead of an ambulance and why
she had drawn her gun. Id. at 141. Kopp said that they had to clear her apartment first and told
Williams to be quiet. Id. at 141. Kopp also asked Williams who else was in the apartment. Id.
at 142. Kopp did not ask Williams any questions about her son and did not attend to him. Id.
Kopp and Shermer repeatedly told Williams to calm down and shut up. Id. at 142-44.
Emergency medical technicians (EMTs) from the fire department arrived ten minutes after
Shermer and looked in on Williamss son, but did not do anything to help him.4 Id. at 145-46.
Williams asked Kopp and Shermer to leave, but they refused, saying that they had to protect the
other emergency personnel from Williams. Id. at 143-44.
Paramedics arrived in an ambulance some time after the EMTs. Id. at 150-51. The
paramedics agreed to take Williamss son to the hospital. Id. at 150-51. Kopp offered the
paramedics a police escort, which they declined. Kopp. Aff. 7. Everyone left Williamss home
together. Williams Dep. at 152-53.
C. Williamss Complaint to the Duluth Police Department
Williams went to the Duluth Police Department the next day to complain about Kopps
and Shermers behavior. Williams Dep. at 154, 156-57. Deputy Chief Mike Tusken told
Williams that Padden had placed a caution alert on her address, although he did not know why.
Id. at 155. Tusken forwarded Williamss complaint to Lieutenant Kerry Kolodge. Id. at 156;
Kolodge Aff. 1 [Docket No. 67].
Kolodge called Williams to follow up, and Williams initially screamed, yelled, and
ma[de] race an issue. Kolodge Aff. 5. When she calmed down, Williams told Kolodge that
she was upset about three things: that the caution alert was put on her home, that the make of her
gun was misidentified, and that she was erroneously identified as being related to people
involved in the Morgan Park shooting. Id.
Some time later, Kolodge followed up by talking to Padden. Kolodge decided that
Padden acted reasonably when she provided the information that led to the placement of the
caution alert on Williamss address. Id. 6. Kolodge also decided, however, that there was no
longer any need for the cautionary comments to continue and directed the 911 service to remove
the caution alert from Williamss address. Id. 7.
Kolodge spoke with Williams by phone twice more in June and followed up each phone
conversation with a letter. Kolodge Aff. 8-9 & Exs. 2-3. Kolodge explained that Padden had
placed the caution alert on Williamss address because Williams had just come from Morgan
Park, had a handgun in her purse, and knew some of the people involved in the Morgan Park
shooting. Kolodge Aff. Ex. 2 at 1. Kolodge also told Williams that the caution alert would be
removed and that certain information about Williams in police records had been corrected. Id. at 2.
Williams filed this suit in October 2007.
A. Standard of Review
Summary judgment is appropriate if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A dispute over
a fact is material only if its resolution might affect the outcome of the suit under the governing
substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a
fact is genuine only if the evidence is such that a reasonable jury could return a verdict for
either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In
considering a motion for summary judgment, a court must view the evidence and the inferences
that may be reasonably drawn from the evidence in the light most favorable to the non-moving
party. Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 468 (8th Cir. 2004).
B. Williamss Claims
Williamss claims can be divided into two groups. The first group including
negligence, procedural due-process, substantive due-process, and equal-protection claims
arises out of Paddens encounter with Williams in May 2007 and the caution alert that was
placed on her address after that encounter. The second group consists of substantive due-process
claims arising out of Williamss interactions with Kopp and Shermer in June 2007.
Williamss negligence claim arises under Minnesota law. Williams brings her federal
claims under 42 U.S.C. 1983, which forbids states and state actors from depriving any citizen
of the United States or other person within the jurisdiction thereof . . . of any rights, privileges, or
immunities secured by the Constitution and laws of the United States. 42 U.S.C. 1983. The
essential elements of a 1983 claim are: (1) violation of a constitutional right, (2) by a state
actor, (3) who acted with the requisite culpability and (4) thereby injured the plaintiff. Kuha v.
City of Minnetonka, 365 F.3d 590, 606 (8th Cir. 2003), overruled in part, Szabla v. City of
Brooklyn Park, 486 F.3d 385, 395-95 (8th Cir. 2007) (en banc).
The central dispute in this case with respect to Williamss 1983 claims is whether any
defendant violated Williamss constitutional rights. (The police-officer defendants are obviously
state actors.) The Court considers in turn: Williamss claims against Padden; Williamss claims
against Kopp and Shermer; the defense of qualified immunity; and Williamss claims against the
City of Duluth.
1. Claims Against Padden
a. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment forbids states to deprive any
person of life, liberty, or property, without due process of law . . . . U.S. Const. amend. XIV,
1. To prevail on her procedural due-process claim, Williams must establish two things. First,
she must show that she was deprived of a life, liberty, or property interest protected by the
Fourteenth Amendment. Second, she must show that the state deprived her of that interest
without providing adequate process. See Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902
(8th Cir. 2000).
Williams contends that Padden and Duluth violated her procedural due-process rights by
placing a caution alert on her address without cause. Pl. Mem. Opp. S.J. (Pl. SJ Opp.) at 11
5Williams asserts in her complaint that the caution alert destroys [her] character . . . .
2d Am. Comp. 27. In her brief opposing summary judgment, Williams quotes this language
from Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971): Where a persons good name,
reputation, honor, or integrity is at stake because of what the government is doing to him, notice
and an opportunity to be heard are essential. Pl. SJ Opp. at 11 (quoting Constantineau). And
at the summary-judgment hearing, Williamss counsel said that Williams suffered stigma as a
result of the caution alert. SJ Hrg Tr. at 4.
[Docket No. 95]. Specifically, Williams contends that as a result of the caution alert, her
statutorily established liberties to possess a [handgun] with a permit and to have free access to
emergency services without undue harassment from police officers were infringed. Id. And
although Williamss complaint is less than clear on the matter, in light of some language in the
complaint, a citation in Williamss brief opposing summary judgment, and Williamss arguments
at the summary-judgment hearing, the Court understands Williams to be contending that the
caution alert deprived her of her liberty interest in her reputation.5
The Supreme Court has not attempted to define with exactness what constitutes a
liberty interest under the Fourteenth Amendment. Meyer v. Nebraska, 262 U.S. 390, 399
(1923); see also Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 572 (1972) (quoting
Meyer). Constitutionally protected liberty interests may arise from two sources: the Due Process
Clause and state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983); see also Ky. Dept of Corr. v.
Thompson, 490 U.S. 454, 460 (1989) (quoting Hewitt). Not every interest created by state law is
protected by the Due Process Clause. See Meis v. Gunter, 906 F.2d 364, 369 (8th Cir. 1990)
(holding that it is emphatically not the law that every state statute which imposes a mandatory
duty, or creates a legal right, is constitutional in nature). Only when a state law creates a
legitimate claim of entitlement to an interest is that interest protected by the Due Process
Clause. Thompson, 490 U.S. at 460. Thus, when a state grants a person the right to a certain
The Second Amendment of the 6 Constitution also protects Williamss right to possess a
firearm. Heller v. District of Columbia, 128 S. Ct. 2783, 2797 (2008). But it is not clear whether
the Second Amendment should be incorporated against the states through the Fourteenth
Amendment. See United States v. Fincher, 538 F.3d 868, 873 n.2 (8th Cir. 2008) (noting that
Heller did not address the incorporation question); Edwards v. City of Goldsboro, 178 F.3d 231,
252 (4th Cir. 1999) ([T]he law is settled in our circuit that the Second Amendment does not
apply to the States.). Such incorporation is a necessary precondition to the enforcement of
constitutional rights against the states by means of 42 U.S.C. 1983. See Paul v. Davis, 424
U.S. 693, 710 n.5 (1976).
Because Williams has not asserted that she was deprived of her Second Amendment
rights, the Court need not consider a claim based on her constitutional right to bear arms. The
Court notes, however, that a Second Amendment claim would fail for the same reason that
Williamss state-law-based procedural due-process claim fails: She was not deprived of her right
to possess a handgun, nor was that right burdened in any meaningful way.
outcome in the event of the occurrence of certain facts, the state creates a protected liberty
interest, and the person has a right under the Due Process Clause to whatever process is due in
connection with the determination of whether those facts exist. Bagley v. Rogerson, 5 F.3d 325,
328 (8th Cir. 1993); see also Thompson, 490 U.S. at 462-63.
The Court considers each of Williamss asserted liberty interests in turn.
(1) Possessing a Handgun
Although Williams has not discussed the Minnesota statute governing handgun
possession, the Court assumes (and defendants do not dispute) that Williams has a right under
state law to possess a handgun, provided that she qualifies for a permit.6 And the Court assumes,
without deciding, that Minnesotas handgun-permit law creates a liberty interest in possessing a
handgun if a person satisfies the statutory criteria for a permit. It follows that Williams was
entitled to whatever process is due in connection with the determination of whether she
satisfies those criteria. Bagley, 5 F.3d at 328.
7Williams was deprived of physical possession of her gun for a brief period when Padden
allegedly loaded and unloaded it. Even if this were the basis of Williamss procedural dueprocess
claim and the Court doubts that it is this momentary deprivation was too brief to
constitute an actionable deprivation of Williamss right to possess a handgun. Cf. Conn v.
Gabbert, 526 U.S. 286, 292 (1999) (holding that the liberty interest in practicing ones profession
is not violated by the inevitable interruptions of our daily routine as a result of legal process
which all of us may experience from time to time).
But Williams does not contend that she was deprived of any procedure with respect to
possessing a handgun. Indeed, it is undisputed that Williams possessed a handgun with a permit
both before and after the various incidents that gave rise to this lawsuit. Thus, to the extent that
Williams contends that the Due Process Clause was violated because she was deprived of her
liberty interest in possessing a handgun with a permit, her claim fails, because the undisputed
facts establish that she was not deprived of that interest.7
The gist of Williamss claim, however, seems to be not that she was deprived of her right
to possess a handgun, but rather that her right to possess a handgun was impermissibly burdened.
That is, Williams seems to contend that when a caution alert was placed on her home in part
because she possessed a handgun, this was an unconstitutional burden on her right to possess the
gun. The Court disagrees.
Williamss right to possess a handgun is not unlimited. Further, Williams has identified
no state statute creating a right on Williamss part to the caution-alert-free possession of a
handgun. See Thompson, 490 U.S. at 460; Bagley, 5 F.3d at 328. And even if the fact of the
caution alert somehow burdened Williamss right to possess a handgun, the burden was minimal
under the circumstances. There were legitimate reasons to warn police officers that there was a
gun in Williamss home. Specifically, the presence of the gun made the home more dangerous
(even if Williams had a permit), because the gun could have fallen into the hands of someone
other than Williams such as the person whose threats to Williams were the occasion for her
acquiring the gun. Accordingly, Williamss 1983 claim with respect to the handgun fails
because she was not deprived of any constitutionally protected liberty interest with respect to her
handgun when a caution alert was placed on her home.
(2) Emergency Medical Services
Williams contends that she was deprived of her statutorily established libert[y] . . . to
have free access to emergency services without undue harassment from police officers. Pl. SJ
Opp. at 11. It is unclear what, exactly, Williams means by undue harassment. Even taking her
version of events as true, the harassment of the officers appears to have involved doing a
protective sweep of the apartment (an apartment on which a caution alert had been placed) and
telling an agitated Williams to calm down. There is no evidence that the officers delayed the
arrival of the paramedics or interfered in any way with the provision of emergency medical
services to Williamss son.
Apart from arguing without citation to supporting authority that there is a
statutorily established right to emergency services free of such harassment, Williams has not
explained how this ostensible liberty interest arises under either the Due Process Clause or under
Minnesota law. See Hewitt, 459 U.S. at 466. The Court is not persuaded that the right to
harassment-free emergency services is a liberty interest that can support a procedural dueprocess
claim. Accordingly, even if the actions of Kopp and Shermer in doing a protective
sweep of the apartment and telling Williams to calm down amounted to harassment of
Williams, and even if the caution alert caused that harassment, the Court finds that this
harassment did not infringe a protected liberty interest. Accordingly, Williamss procedural dueprocess
claim based on the right to harassment-free emergency services fails.
(3) Reputation
Williams contends that the placement of the caution alert deprived her of her liberty
interest in her reputation. But Williams has no liberty interest in her reputation alone. See Paul
v. Davis, 424 U.S. 693, 712 (1976); Gunderson v. Hvass, 339 F.3d 639, 644 (8th Cir. 2003)
(Damage to reputation alone, however, is not sufficient to invoke the procedural protections of
the due process clause.). Rather, to make out a reputation-based procedural due-process claim,
Williams must establish both that she suffered some stigma (i.e., damage to her reputation) and
that she suffered some other tangible burden in connection with that stigma. Gunderson, 339
F.3d at 644. Such claims are thus known as stigma-plus claims. Id.; see also OConnor v.
Pierson, 426 F.3d 187, 195 (2d Cir. 2005) (holding that plus portion of stigma-plus claim
must be a tangible and material burden).
Williams argued at the summary-judgment hearing that the caution alert contained false
information that was published to police officers and that her reputation was harmed as a result.
SJ Hrg Tr. at 4. Even if this satisfied the stigma portion of the stigma-plus test (and the Court
has its doubts), Williams has no evidence of the plus portion of the test. That is, there is no
evidence that Williams suffered any tangible burden in connection with the purportedly
stigmatizing information in the caution alert. The only consequence of the caution alert to which
Williams can point is that Kopp and Shermer did a protective sweep of her apartment when they
responded to her 911 call on June 4, 2007. As explained above, this was a burden without
constitutional significance. Williamss reputation-based procedural due-process claim therefore
b. Substantive Due Process
The substantive component of the Due Process Clause of the Fourteenth Amendment
forbids states to deprive citizens of certain rights, regardless of the process associated with such
deprivation. But the range of liberties protected by the substantive due-process doctrine is much
narrower than the range protected by procedural due process. Substantive due-process protection
extends only to fundamental rights and liberties which are, objectively, deeply rooted in this
Nations history and tradition, and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed. Washington v. Glucksberg, 521 U.S. 702,
720 (1997) (quotations and citations omitted); Moran v. Clarke, 296 F.3d 638, 651 (8th Cir.
2002) (en banc) (Bye, J., concurring) (citing Glucksberg). And when executive action, rather
than legislation, is challenged, a plaintiff must show both that the challenged action violated a
fundamental constitutional right and that the action shocks the conscience. County of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998); see also Flowers v. City of Minneapolis, 478
F.3d 869, 873 (8th Cir. 2007) (citing County of Sacramento).
The shocks-the-conscience test is, by its nature, imprecise. See County of Sacramento,
523 U.S. at 847 ([T]he measure of what is conscience-shocking is no calibrated yard
stick . . . .). The test points clearly away from liability, or clearly toward it, only at the ends of
the tort laws spectrum of culpability. Id. at 848. We know, however, from Daniels v.
Williams, 474 U.S. 327, 328 (1986), that mere negligence will never give rise to a substantive
due-process violation. See also OConnor, 426 F.3d at 203. And we also know, from County of
8Although Williams complains that Padden entered her apartment without permission,
Williams has not raised a Fourth Amendment claim. Even if Williams had raised such a claim,
Padden would be entitled to summary judgment on the substantive due-process claim. [I]f a
constitutional claim is covered by a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific
provision, not under the rubric of substantive due process. United States v. Lanier, 520 U.S.
259, 272 n.7 (1997). The Court therefore finds that Paddens entry into Williamss apartment,
even if it was against Williamss wishes, cannot support a substantive due-process claim.
Sacramento, that in the context of a high-speed car chase, only if the pursuing police officer
deliberately intended to harm his quarry would the officers action shock the conscience. 523
U.S. at 854. Finally, if the government owes a special duty of care to a person in its charge, then
deliberate indifference toward that person can support a substantive due-process claim. Id. at
According to Williams, Paddens actions in entering Williams[s] house without
invitation, taking her gun, arguing about the gun and the Morgan Park shooting, and implying
Williams was involved in the shooting, is conduct that is offensive to human dignity, and is a
clear violation of substantive due process. Pl. SJ Opp. at 13-14. The Court disagrees. As noted
in the preceding section in connection with Williamss procedural due-process claims, no
reasonable jury could find that Padden deprived Williams of any constitutional right, much less a
constitutional right of such a fundamental nature that neither liberty nor justice would exist if
they were sacrificed. Glucksberg, 521 U.S. at 720 (quotations and citations omitted). This
alone suffices to defeat Williamss substantive due-process claim against Padden.
Further, there is no evidence in this case of conscience-shocking behavior on Paddens
part. At worst, Padden acted rudely in questioning Williams too aggressively and needlessly
handling her firearm.8 But there is no evidence that Padden deliberately intended to harm
Moreover, that entry was not, under the circumstances, conscience-shocking.
Williams. And even if Padden owed Williams a special duty of care something the Court
doubts there is no evidence that Padden was deliberately indifferent to Williamss needs. In
short, the substantive component of the Due Process Clause does not protect citizens from the
type of rude behavior alleged by Williams, and thus Padden is entitled to summary judgment on
Williamss substantive due-process claim. Cf. Norris v. Engles, 494 F.3d 634, 636-38 (2007)
(finding no substantive due-process violation where plaintiff was handcuffed for about three
hours to a floor grate that served as an open toilet).
c. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment forbids a state to deny to any
person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1.
This provision requires that states treat similarly situated persons alike. Creason v. City of
Washington, 435 F.3d 820, 823 (8th Cir. 2006).
To prevail on an equal-protection claim, a plaintiff must show that the challenged
government action both had a discriminatory effect and was motivated by a discriminatory
purpose. See United States v. Armstrong, 517 U.S. 456, 465 (1996). To establish discriminatory
effect in a race-discrimination case, the plaintiff must generally show that similarly situated
individuals of a different race were treated differently. See id.; see also Klinger v. Dept of Corr.,
31 F.3d 727, 731 (8th Cir. 1994). Such evidence of discriminatory effect, combined with some
evidence (even indirect) of a discriminatory motivation, entitles the plaintiff to prevail.
Alternatively, the Court assumes that a plaintiff can prevail on an equal-protection claim by
proving, with direct evidence, that a government actor took a challenged action because of racial
animus, and that the plaintiff was harmed by that action. See United States v. Frazier, 408 F.3d
1102, 1108 (8th Cir. 2005); Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir. 2003) (We will
assume that a prima facie equal protection claim may also be proved by direct evidence of racial
discrimination in this type of case [i.e., a selective-enforcement case].); Clark v. Pielert, No. 07-
3649, 2009 U.S. Dist. LEXIS 126, at *22, 2009 WL 35337, at *8 (D. Minn. Jan. 5, 2009).
Williams contends that the caution alert was placed on her home because she is African-
American, in violation of the Equal Protection Clause. Specifically, in her complaint, Williams
alleges that white [handgun-]permit holders did not have caution alerts placed on their
addresses. 2d Am. Compl. 26. And in her brief opposing summary judgment, she asserts that
Padden violated the equal protection clause by harassing Williams and placing the caution alert
on Williams[s] home for no reason other than her race. Pl. SJ Opp. at 16.
Williams, however, has offered no evidence whatsoever to support the assertion in her
complaint that a white gun-permit holder would not have had a caution alert placed on her
premises under the same circumstances. Williams contends that because the caution alert was
later removed, this is evidence that it should never have been placed in the first place. Pl. SJ
Opp. at 16. This may or may not be true but evidence that the caution alert was wrongly
placed on Williamss address is not evidence that it was wrongly placed because of her race.
Government agents are humans, and humans make mistakes. The Equal Protection Clause is not
violated every time a government employee makes a mistake that affects a member of a protected
class. Even if Williams can establish that the caution alert was erroneously placed, she cannot
establish that the caution alert was erroneously placed because of her race, nor can she establish
that she was treated differently from similarly situated white persons.
Williams has also failed to offer any evidence direct or indirect that Padden acted
with racial animus in providing the information to the 911 operator that resulted in placement of
the caution alert on Williamss home. Likewise, to the extent that Williams seeks to raise a
separate equal-protection claim on the basis of harassment by Padden during their encounter,
Williams has failed to offer evidence to support a finding that Padden acted with racial animus.
At the summary-judgment hearing, Williamss counsel said that Williams testified at her
deposition that Padden told her, Theyll give anyone a permit these days, wont they? SJ Hrg
Tr. at 10. Although this statement could reflect racial animus (depending on what Padden meant
by anyone), assertions by counsel are not evidence, and contrary to her counsels assertion
Williams did not, in fact, testify during her deposition that Padden made any such statement.
Williams did testify that Padden questioned her about the Morgan Park shooting, but given that
Williams herself told Padden that she had been in Morgan Park, this questioning is not evidence
of racial animus on Paddens part. Accordingly, no reasonable jury could find that Padden was
motivated by racial animus.
In the absence of any evidence that Williams was treated differently from white citizens
because of her race, and in the absence of any evidence of racial animus on Paddens part,
Padden is entitled to summary judgment on Williamss equal-protection claim.
d. Negligence
Williams contends that Padden was negligent in causing a caution alert to be placed on
her address. 2d Am. Compl. 32 (Padden . . . owed [Williams] a duty to refrain from
incorrectly placing a caution alert on [Williamss] home.). Padden responds that she is entitled
to summary judgment on the basis of official immunity. Mem. Supp. Def. Padden Mot. S.J.
at 19-22 [Docket No. 84]. The Court agrees.
Under Minnesotas common-law doctrine of official immunity, a public official such as
Padden who takes action that requires the exercise of [her] judgment or discretion is generally
not personally liable for damages resulting from that action. Anderson v. Anoka Hennepin
Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004) (quotations omitted); see also AP v.
Anoka-Hennepin Indep. Sch. Dist. No. 11, 538 F. Supp. 2d 1125, 1149 (D. Minn. 2008).
Conversely, official immunity does not protect public officials from liability arising from the
execution of ministerial, rather than discretionary, functions . . . . Anderson, 678 N.W.2d at
Paddens decision to provide information to the 911 operator after her encounter with
Williams was plainly a discretionary decision, and she is therefore presumptively entitled to
official immunity. See Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990) (Generally, police
officers are classified as discretionary officers entitled to [official] immunity.). To defeat the
presumption of immunity, Williams must show that Padden acted willfully or with malice. See
Schroeder v. St. Louis County, 708 N.W.2d 497, 505 (Minn. 2006). In this context, to act
willfully is to violate[] a known right, and the inquiry is objective, not subjective. Gleason
v. Met. Council Transit Operations, 563 N.W.2d 309, 315 (Minn. Ct. App. 1997), affd in part,
revd in part, 582 N.W.2d 216 (Minn. 1998). That is, the applicable standard contemplates an
objective inquiry into the legal reasonableness of an officials actions. State by Beaulieu v. City
of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994); see also Gleason, 563 N.W.2d at 315
(citing Beaulieu).
Based on the undisputed evidence, it was objectively reasonable for Padden to act as she
did in providing the 911 operator with information about Williams. In doing so, Padden did not
violate any known right of Williams, and Padden is therefore entitled to official immunity with
respect to and summary judgment on Williamss negligence claim.
2. Claims Against Kopp and Shermer
According to Williams, defendants Kopp and Shermer violated her substantive dueprocess
rights when they arrived at her apartment on June 4, 2007 in response to her 911 call
about her sons illness. Specifically, Williams contends that by searching her apartment with
guns drawn and telling her to shut up and get out of their way despite the fact that Williams was
upset and her son was sick, Kopp and Shermer acted in a way that shocks the conscience. Pl. SJ
Opp. at 14. The Court disagrees.
As discussed above in connection with Williamss claims against Padden, Williams
cannot prevail on her substantive due-process claims unless a defendants actions both violated
Williamss fundamental constitutional rights and shocked the conscience. Williams has not
identified any constitutional right that either Kopp or Shermer violated, apart from asserting that
their actions implicate Williams[s] liberty interests liberty interests that are not specified
by subjecting her to interrogation, harassment, threats, and intimidation because of her race.
Pl. SJ Opp. at 14. In light of the complete absence of any evidence that Kopp or Shermer did
anything on account of Williamss race, the Court holds that no reasonable jury could find that
Kopp and Shermer violated a fundamental constitutional right, even if they acted exactly as
Williams says they did.
Further, no reasonable jury could find that Kopps and Shermers actions which were
motivated in part by the presence of a caution alert on her address shocked the conscience.
Cf. Hawkins v. Holloway, 316 F.3d 777, 786 (8th Cir. 2003) (holding that evidence of a sheriffs
abrasive conduct, verbal harassment, physical altercations of a nonsexual nature, and other
unprofessional conduct toward employees was insufficient to support a constitutional
violation). There is no evidence that Kopp and Shermer intended to harm Williams or were
deliberately indifferent to her needs. Accordingly, Kopp and Shermer are entitled to summary
3. Qualified Immunity
The police-officer defendants each assert the defense of qualified immunity. Qualified
immunity shields government agents from liability as long as the agents actions are objectively
reasonable in light of clearly established legal principles. Anderson v. Creighton, 483 U.S. 635,
639-40 (1987); see also Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part, Pearson v.
Callahan, 172 L. Ed. 2d 565, 576-80 (2009). Put another way, a government agent is entitled to
qualified immunity unless the right that he violated was so clearly established at the time that a
reasonable official would have understood that his conduct was unlawful under the
circumstances[.] Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007).
Action that does not violate the Constitution is, by definition, objectively reasonable in
light of clearly established constitutional law. Accordingly, [i]f no constitutional right would
9Even if the Court is mistaken about whether Williamss constitutional rights were
violated, the Court would find that the police-officer defendants actions did not violate clearly
established law. The Court would, therefore, still grant summary judgment to the police-officer
defendants on the basis of qualified immunity.
have been violated were the [plaintiffs] allegations established, there is no necessity for further
inquiries concerning qualified immunity. Saucier, 533 U.S. at 201; see also Kahle, 477 F.3d at
550 ([D]id the official deprive the plaintiff of a constitutional or statutory right? If not, he does
not need qualified immunity, as he is not liable under 1983.)
As discussed above, the undisputed facts establish that the police-officer defendants did
not violate any constitutional right, let alone a clearly established right. The police-officer
defendants are therefore entitled to summary judgment on the basis of qualified immunity.9
4. Claims Against the City of Duluth
a. Section 1983
Williams contends that the City of Duluth is liable under 1983 for violating her rights
under the Fourteenth Amendment to due process and equal protection. 2d Am. Compl. Counts
III-IV. But, as discussed above, Williamss constitutional rights were not violated by the actions
of any of the police-officer defendants. In the absence of any constitutional violation on the part
of Duluths agents (the police officers), Duluth cannot be liable under 1983. See, e.g., Collins
v. City of Harker Heights, 503 U.S. 115, 120 (1992) ([P]roper analysis requires us to separate
two different issues when a 1983 claim is asserted against a municipality: (1) whether
plaintiffs harm was caused by a constitutional violation, and (2) if so, whether the city is
responsible for that violation.).
Moreover, even if the Court is mistaken about whether the police-officer defendants
violated Williamss constitutional rights, Williams cannot establish that Duluth is liable for those
deprivations. A municipality can be held liable under 1983 only if the plaintiffs injury results
from execution of a governments policy or custom . . . . Monell v. Dept of Soc. Servs., 436
U.S. 658, 694 (1978); see also Collins, 503 U.S. at 120-21 (citing Monell).
Williams contends that two policies of Duluth caused the police-officer defendants to
deprive her of her constitutional rights: (1) the citys policy of placing caution alerts on homes
with no procedural safeguards for the individual homeowner, and (2) the citys inadequate
training and supervision of police officers. Pl. SJ Opp. at 17. But Williams has no evidence
that either of these alleged policies caused her any injury.
Williams contends, with respect to both policies, that Duluths inadequate policies are
demonstrated in the pattern of unconstitutional conduct from [the police-officer defendants] over
the course of eight months and multiple separate encounters. Pl. SJ Opp. at 18. This argument
is, of course, entirely circular: Williams asserts that her constitutional rights were violated by
Duluth police officers and asks the Court to conclude, from those very violations, that Duluths
policies must have given rise to the violations. Such circular reasoning does not satisfy Monell.
If it did, then practically every constitutional violation by a municipalitys agent would give rise
to municipal liability.
With respect to the caution alert, Williams further asserts that Duluths inadequate
policies are shown by the fact that the alert was eventually lifted and Defendants admit it was
inappropriately placed. Id. at 18. But this is yet more circular reasoning: Even if the caution
alert was wrongly placed on Williamss home and her constitutional rights were thereby violated,
10Further, as noted above, the fact (if it is a fact) that the caution alert may have been
mistakenly placed does not mean that it was unconstitutionally placed.
the mere fact of a constitutional violation does not establish that the violation resulted from
municipal policy or custom.10
Because Williams has no evidence that a municipal policy or custom caused a
constitutional violation, Duluth is entitled to summary judgment under Monell.
b. Negligence
Duluth contends that it is entitled to summary judgment on Williamss negligence claims
on the basis of vicarious official immunity. The Court agrees.
Under the doctrine of vicarious official immunity, public entities are immune from
liability for certain actions of their employees. The Minnesota Supreme Court held in Schroeder
v. St. Louis County that a court should extend vicarious official immunity to public entities if the
court concludes that public policy warrants such an extension. 708 N.W.2d at 508 (Ultimately,
the extension of vicarious official immunity is a policy question for the court.). And Minnesota
courts have routinely extended vicarious official immunity to a public agency when they find that
an employee of the agency is protected by direct official immunity. See AP v. Anoka-Hennepin
Indep. Sch. Dist. No. 11, 538 F. Supp. 2d at 1150-51. The Court holds that under Minnesota law,
vicarious official immunity extends to Duluth, and Duluth is therefore entitled to summary
judgment based on that doctrine and on the Courts holding, discussed above, that the policeofficer
defendants are protected from liability by direct official immunity.
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS
1. The motion for summary judgment of defendant Ann Padden [Docket No. 61] is
2. The motion for summary judgment of defendants Rebecca Kopp and Todd
Shermer [Docket No. 69] is GRANTED.
3. The motion for summary judgment of defendant City of Duluth [Docket No. 90]
4. The motion for summary judgment of defendant Brian Jones [Docket No. 91] is
DENIED AS MOOT in light of the Courts order dismissing Williamss claims
against him [Docket No. 114].
5. Plaintiffs complaint is DISMISSED WITH PREJUDICE AND ON THE
Dated: February 23, 2009 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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