Waters v. Kirchner

U.S. District Court, District of Minnesota December 14, 2017

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Charles Waters and Anita Waters, Civ. No. 17-935 (PAM/SER)

Plaintiffs,

v. MEMORANDUM AND ORDER

B. Madson, Alyssa Newbury,
City of Coon Rapids, Menard, Inc.,
Tom Hawley, and Emily Kirchner,

Defendants.

This matter is before the Court on Defendants’ Motions to Dismiss. For the
following reasons, the Motions are granted.
BACKGROUND
On March 27, 2016, Plaintiffs Charles Waters and his wife, Anita Waters, went to
the Coon Rapids store of Defendant Menard, Inc., to exchange a saw that they had
purchased. (Am. Compl. (Docket No. 28) ¶ 31.) Mr. Waters returned his saw in the store
and was directed to pick up his new saw from the Menard’s lumberyard behind the store.
(Id. ¶¶ 37-38.) Plaintiffs do not dispute the existence of signs at the entrance and exit of
the Menard’s lumberyard, informing patrons that vehicles are subject to inspection when
they leave the lumberyard. Rather, they allege that they did not see any sign. (Id. ¶¶ 40,
49-50.)
Mr. Waters drove his vehicle into the lumberyard behind the Menard’s store with
Mrs. Waters in the passenger seat. (Id. ¶ 39.) A Menard’s employee opened their trunk
and put the new saw inside, and they then proceeded to the lumberyard exit gate. (Id.
¶¶ 41, 44, 49, 59.) Mr. Waters’s video recording1 clearly shows a sign at the exit gate
regarding vehicle inspections. (Id. Ex. A. at 30:19.)

At the exit gate, an attendant directed Mr. Waters to open his trunk for inspection,
citing the signs. (Id. ¶ 61, Ex. A. at 30:58-31:02.) Mr. Waters refused because he
believed that he was “under no legal obligation” to open his trunk. (Id. ¶ 62, Ex. A at
31:02-:40.) The gate attendant requested the presence of a Menard’s manager. (Id. Ex. A
at 31:59-32:04.) Mr. Waters called the police, claiming that Menard’s was unlawfully
detaining him. (Id. ¶¶ 68, 70-72, Ex. A at 33:10-:16.)

Defendant Coon Rapids Police Officers Alyssa Smith2 and Emily Kirchner
responded to the call. (Id. ¶ 72.) Officer Smith approached the Menard’s manager first,
who told her that Menard’s needed to verify the purchases in Plaintiffs’ trunk before they
could leave and that Mr. Waters believed he was being unlawfully detained. (Id. Ex. A at
38:02-:14.) Officer Smith then approached Mr. Waters and directed him to let the

Menard’s employees verify the purchases in his trunk. (Id. at 38:14-:37.) Mr. Waters

1 Mr. Waters video-recorded the entire duration of his visit at Menard’s, and Plaintiffs
attached a highly edited version of the recording to the Amended Complaint. (Am.
Compl. ¶ 47, Ex. A.) The Court may consider documents attached to the complaint on a
motion to dismiss. Greenman v. Jessen,

787 F.3d 882, 887

 (8th Cir. 2015) (citation 
omitted).  Menard’s also provided security footage that captures the incident.  (Doug 
Stuart Decl. (Docket No. 23) Ex. D.)  Defendants Madson, Smith, Hawley, Kirchner, and 
the City of Coon Rapids (collectively, “the City”) produced Officer Smith’s full dash cam 
video.  (Aff. of Ryan M. Zipf (Docket No. 16-2) Ex. 2.)  The Court may consider these 
recordings because they are necessarily embraced by the pleadings.  See Ashanti v. City 
of Golden Valley,

666 F.3d 1148, 1151

(8th Cir. 2012) (concluding that a document is
necessarily embraced by the pleadings if its contents are alleged in the complaint and the
parties do not question the document’s authenticity).

2 At the time of the incident, Officer Smith’s name was Alyssa Newbury.
refused again, and Officer Smith then asked Mr. Waters for his identification, which he
refused to provide because he said he was “not currently driving.” (Id. at 38:38-:59.)

Officer Smith directed Mr. Waters to exit his vehicle and informed him that she had
reasonable suspicion of criminal activity because he would not open his trunk and “could
very well have stolen property.” (Id. ¶ 79, Ex. A at 39:17-:30.)
At this point, Plaintiffs allege that Mr. Waters exited his vehicle, Officers Smith
and Kirchner pat-searched him, and he returned to his vehicle. (Id. ¶¶ 80-83.) They also
allege that the officers directed him to exit his vehicle a second time, and after he exited

the vehicle this time, the officers handcuffed him and put him in a squad car without pat-
searching him. (Id. ¶¶ 88-89.) The record before the Court belies Plaintiffs’ allegations.
Menard’s security footage and Officer Smith’s dash cam video clearly establish
that Mr. Waters only exited his vehicle once after Officers Smith and Kirchner directed
him to do so. (Am. Compl. Ex. A at 38:57-41:13; Stuart Decl. Ex. D at 11:35-15:15; Zipf

Aff. Ex. 2 at 14:25:26-:26:00.) After Mr. Waters exited his vehicle, Officer Kirchner
searched him for weapons, handcuffed him, and escorted him to a squad car. (Stuart
Decl. Ex. D at 13:52-15:15.)
Officer Smith then returned to Plaintiffs’ vehicle and asked Mrs. Waters to
identify Mr. Waters. (Am. Compl. Ex. A at 46:14-49:29.) Mrs. Waters identified Mr.

Waters for Officer Smith and informed the officers that her husband has a form of autism.
(Id. at 46:25, 47:57-49:27.) Officer Smith requested that Mrs. Waters comply with the
Menard’s policy by letting them verify the product that Mr. Waters purchased. (Id. at
47:00-:08, 47:40-:55.) And while Officer Smith was talking to Mrs. Waters, Sergeant B.
Madson arrived on scene. (Id. at 47:00.)

Officer Smith spoke with Sergeant Madson, and when she returned to Mrs.
Waters, she renewed her request that Mrs. Waters comply with the Menard’s policy. (Id.
at 50:46-51:28.) Specifically, she stated, “Would you be willing to open the trunk for
these gentlemen because that’s the only issue holding us up here . . . .” (Id.) She also
stated, “It’d be doing us a huge favor if you could just bring that invoice and step out
with these guys and pop the trunk for us, and we’ll chalk it up to [Mr. Waters] having a

bad day.” (Id.) Mrs. Waters complied; she exited the vehicle, gave the invoice to the
Menard’s employees, and opened her trunk. (Id. at 51:29-59.) The Menard’s employees
verified the purchase and inspected Plaintiffs’ trunk, and the police officers released Mr.
Waters. (Id.) Mr. Waters also received a trespass warning, excluding him from the Coon
Rapids Menard’s store for one year. (Id. ¶ 118.)

Before Plaintiffs left the lumberyard, Mr. Waters requested the names and badge
numbers of all officers present. (Id. ¶ 129.) Mr. Waters approached Sergeant Madson in
order to obtain his badge number. (Zipf Aff. Ex. 2 at 14:40:43.) The dash cam video
shows Mr. Waters was within reaching distance of Sergeant Madson. (Id.) Sergeant
Madson placed his hands on Mr. Waters, turned Mr. Waters away from him, and pushed

Mr. Waters in the direction of Mr. Waters’s car. (Id. at 14:40:43-:45.) Plaintiffs left the
Menard’s lumberyard in their vehicle. (Id. at 14:41:26.) The entire encounter with law
enforcement lasted about 20 minutes.
Mr. Waters filed a written complaint with the Coon Rapids Police Department on
March 30, 2016. (Id. ¶ 132.) The Amended Complaint alleges that Captain Thomas

Hawley refused Mr. Waters’s request to accept the written complaint by email. (Id.
¶¶ 137-38.) Nevertheless, attached to the Amended Complaint is a letter from the Coon
Rapids Chief of Police Brad Wise, informing Mr. Waters that the formal complaint was
reviewed and that he believed the police officers acted lawfully. (Id. Ex. F.) The formal
complaint was closed. (Id.)
Plaintiffs filed a 19-claim Amended Complaint on July 16, 2017. Claims I, II, III,

IV, VI, IX, XVI, and XVII allege that Defendants violated Plaintiffs’ First and Fourth
Amendment rights. (Id. ¶¶ 160-63, 165, 169, 179-80.) Claim VII alleges that the City
violated Plaintiffs’ First, Fourth, and Fourteenth Amendment. (Id. ¶¶ 166-67). Claims V
and VIII allege that Defendants discriminated against Mr. Waters based on his perceived
political beliefs and based on his disabilities. (Id. ¶¶ 164, 168.) Claims X, XI, and XVIII

are false imprisonment claims. (Id. ¶¶ 170-74, 184.) Claim XII is for battery, Claim XIII
is for defamation, Claim XIV is for common-law trespass, Claim XV is for invasion of
privacy, and Claim XIX is for negligence. (Id. ¶¶ 175-78, 185-86.) Defendants move for
dismissal or summary judgment on all claims, arguing that Plaintiffs have failed to state
any claim on which relief can be granted.

DISCUSSION
When evaluating a motion to dismiss under Rule 12(b)(6), the Court assumes the
allegations in the Amended Complaint to be true and construes all reasonable inferences
from those facts in the light most favorable to the non-moving party. Morton v. Becker,

793 F.2d 185, 187

 (8th Cir. 1986).  The Court need not accept as true wholly conclusory 
allegations, Hanten v. Sch. Dist. of Riverview Gardens,

183 F.3d 799

, 805 (8th Cir. 

1999), or legal conclusions that the plaintiff draws from the facts pled.  Westcott v. City 
of Omaha,

901 F.2d 1486, 1488

 (8th Cir. 1990).                            
A complaint must contain “enough facts to state a claim to relief that is plausible 
on its face” to survive a motion to dismiss.  Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570

 (2007).  Although a complaint need not contain “detailed factual allegations,” it must 
contain facts with enough specificity “to raise a right to relief above the speculative 

level.”

Id. at 555

.  “Threadbare recitals of the elements of a cause of action, supported by 
mere conclusory statements,” will not pass muster under Twombly.  Ashcroft v. Iqbal,

556 U.S. 662, 678

 (2009) (citing Twombly,

550 U.S. at 555

).  This standard “calls for 
enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of 
[the claim].”  Twombly,

550 U.S. at 556

.                                  

A.   Fourth Amendment Claims                                              
Plaintiffs  argue  that  the  City  seized  Mr.  Waters  (Claim  III)  and  Mrs.  Waters 
(Claim  VI), and searched Plaintiffs’ vehicle (Claim XVI)  in violation of the Fourth 
Amendment.  They also contend that Menard’s unlawfully seized them and searched their 
vehicle under color of state law (Claim XVII).  The City argues that it is entitled to 

immunity against Plaintiffs’ Fourth Amendment claims, and Menard’s contends that it is 
not a state actor subject to a § 1983 claim under the Fourth Amendment.   
Qualified immunity shields a police officer from a lawsuit if a reasonable officer 
could have believed that the police officer’s conduct was “lawful, in light of clearly 
established law and the information the [police] officers possessed.”  Hunter v. Bryant,

502 U.S. 224, 227

 (1991) (quoting Anderson v. Creighton,

483 U.S. 635, 641

 (1987)).  In 

other words, the plaintiff must first “make out a violation of a constitutional right.”  
Pearson v. Callahan,

555 U.S. 223, 232

 (2009) (citations omitted).  A government official 
is then entitled to qualified immunity only if “the right at issue was ‘clearly established’ 
at the time of defendant’s alleged misconduct.”

Id.

  Clearly established law “turns on the 
‘objective legal reasonableness of the action, assessed in light of the legal rules that were 
clearly established at the time it was taken.’”

Id.

 at 244 (quoting Wilson v. Layne,

526 U.S. 603, 614

 (1999)).  “[T]he clearly established law must be ‘particularized’ to the facts 
of the case.”  White v. Pauly,

137 S. Ct. 548, 552

 (2017) (quoting Anderson,

483 U.S. at 640

).                                                                     
1.   Claims III and VI: Seizure                                      
A police officer may “conduct a brief, investigatory stop when the officer has a 

reasonable, articulable suspicion that criminal activity is afoot.”  Illinois v. Wardlow,

528 U.S. 119, 123

  (2000)  (citing  Terry  v.  Ohio,

392 U.S. 1, 30

  (1968)).    “Reasonable 
suspicion is a lower threshold than probable cause, and it requires considerably less than 
proof of wrongdoing by a preponderance of the evidence.”  United States v. Carpenter,

462 F.3d 981, 986

 (8th Cir. 2006) (citations omitted).  Put into the context of qualified 

immunity, the City need only show, under the totality  of the circumstances,  that “a 
reasonable officer could have believed that he had a reasonable suspicion; in other words, 
if he had arguable reasonable suspicion.”   De La Rosa v. White,

852 F.3d 740, 745-46

 
(8th Cir. 2017).  Police officers may “draw on their own experience and specialized 
training  to  make  inferences  from  and  deductions  about  the  cumulative  information 
available.”  United States v. Arvizu,

534 U.S. 266, 273

 (2002) (citation omitted). 

Here,  the  record  demonstrates  that  Mr.  Waters  repeatedly  refused  to  identify 
himself, despite the fact that he originally requested the officers’ presence.  See United 
States v. Longs, No. 07-CR-189,

2008 WL 2357858

, at *3 (D. Minn. June 5, 2008) 
(Tunheim, J.) (concluding that a suspect attempting to conceal his identity contributes to 
reasonable suspicion).  There is no dispute that Menard’s policy requires inspection of 
vehicles  exiting  its  lumberyard.    Although  Plaintiffs  allege  that  they  saw  no  sign 

informing them of the policy before they entered the lumberyard, Mr. Waters never told 
the police officers that he was unaware of Menard’s policy.  Instead, he repeatedly argued 
with the police officers and disagreed with their reasoning.  (Am. Compl. Ex. A 38:00-
42:53); see, e.g., United States v. Richards,

217 F. App’x 828, 831

 (10th Cir. 2007) 
(summarizing favorably a district court’s conclusion that reasonable suspicion existed, in 

part,  based  on  a  suspect’s  “hesitant  and  argumentative  conduct”).    Furthermore,  he 
refused to follow the police officers’ direction for several minutes by not exiting his 
vehicle.  (Zipf Aff. Ex. 2 at 14:24:09-14:26:07); see United States v. Peoples,

925 F.2d 1082, 1087

 (8th Cir. 1991) (finding that a suspect’s refusal to comply with officers’ 
instructions contributes to a reasonable suspicion).  Officer Smith informed Mr. Waters 

that she had reasonable suspicion to believe that he had stolen property in his trunk 
because he refused to comply with the Menard’s policy.  (Am. Compl. Ex. A 40:18-:30.)  
She informed Mr. Waters that he was not under arrest, but he was being detained.  (Id. 
Ex. A 40:45-:58.)  Under the totality of the circumstances in this case, the City had at 
least arguable reasonable suspicion to seize Plaintiffs.  Consequently, the police officers 
and the City are entitled to qualified immunity, and the unreasonable seizure claims are 

dismissed.                                                                
2.   Claim XVI: Search                                               
“A consensual search does not violate the Fourth Amendment if the consent was 
voluntarily given without coercion.”  United States v. Brown,

345 F.3d 574, 579

 (8th Cir. 
2003) (quotation omitted).  But “[w]hether consent is voluntarily given is a question of 
fact.”  United States v. Escobar,

389 F.3d 781, 784

 (8th Cir. 2004) (citing Schneckloth v. 

Bustamonte,

412 U.S. 218, 248-49

 (1973)).  Plaintiffs allege that Mrs. Waters’s consent 
was involuntary.  (Am. Compl. ¶ 114.)  The Court thus cannot conclude on a motion to 
dismiss that Mrs. Waters voluntarily consented to open Plaintiffs’ trunk. 
But  regardless  whether  the  search  violated  the  Fourth  Amendment,  Plaintiffs’ 
claim must be dismissed.  “[T]he abstract value of a constitutional right may not form the 

basis for § 1983 damages.”  Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299, 308

 
(1986).  Thus, to succeed on a § 1983 claim for an allegedly unreasonable search, a 
plaintiff must prove that the search was unlawful and that it caused actual, compensable 
injury.  Heck v. Humphrey,

512 U.S. 477

, 487 n.7 (1994) (citing Stachura,

477 U.S. at 308

).  Because the Amended Complaint does not allege actual, compensable injury, this 

claim is dismissed.                                                       
3.   Claim XVII: State Actor                                         
Menard’s argues that Plaintiffs failed to establish that it is a state actor subject to a 
§ 1983 claim.  “A private party who willfully participates in joint activity with the State 
or its agents is considered a state actor.”  Youngblood v. Hy-Vee Food Stores, Inc.,

266 F.3d 851, 855

 (8th Cir. 2001) (citing Adickes v. S.H. Kress & Co.,

398 U.S. 144, 152

 

(1970)).   A  store  may  be acting jointly with the state  if “the police detain accused 
shoplifters without making an independent investigation or pursuant to a customary plan 
between the store and the police department.”

Id.

  The Amended Complaint fails to 
allege that Menard’s and the Coon Rapids Police Department acted jointly or had a 
customary  plan.    Moreover,  it  was  Mr.  Waters—not  Menard’s—who  invoked  state 
authority.  Under these circumstances, Plaintiffs have failed to allege that Menard’s was a 

state actor subject to their § 1983 claims.  This claim is dismissed.     
4.   Claims IV and XII: Excessive Force and Battery                  
Plaintiffs contend that Sergeant Madson used excessive force by grabbing and 
shoving Mr. Waters, and Sergeant Madson and Officer Smith used excessive force by 
“deliberately and unnecessarily” causing Mr. Waters “great pain” when they handcuffed 

him.  (Am. Compl. ¶ 163.)  Plaintiffs’ § 1983 excessive-force and battery claims against 
Sergeant Madson require a showing that his conduct was objectively unreasonable “under 
the circumstances, as judged from the perspective of a reasonable officer on the scene at 
the time the force was applied.”  Chambers v. Pennycook,

641 F.3d 898, 907

 (8th Cir. 
2011) (citations omitted).  This must also allow “for the fact that police officers are often 

forced to make split-second judgments—in circumstances that are tense, uncertain, and 
rapidly evolving.”  Graham v. Connor,

490 U.S. 386, 397

 (1989).  In Minnesota, a battery 
claim also requires the plaintiff to prove that the police officer’s use of force was not 
reasonable.  Ward v. Olson,

939 F. Supp. 2d 956, 964

 (D. Minn. 2013) (Doty, J.) (citing 
Johnson v. Peterson,

358 N.W.2d 484, 485

 (Minn. Ct. App. 1984)).          

Notwithstanding the present procedural posture, the record establishes that Mr. 
Waters approached to within arms’ length of Sergeant Madson.  (Zipf Aff. Ex. 2 at 
14:40:43.)  Mr. Waters had been released from a squad car, but he remained to obtain the 
officers’  identification,  despite  already  receiving  a  trespass  warning.    (Am.  Compl. 
¶¶ 118, 129.)  Sergeant Madson then turned him away and pushed him in the direction of 
his car.  (Zipf Aff. Ex. 2 at 14:40:43-:45.)  The Court does not believe that this push was 

an excessive use of force.  See Graham,

490 U.S. at 396

 (“Not every push or shove, even 
if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth 
Amendment.”) (quotation omitted).                                         
Additionally, the Amended Complaint does not allege that Mr. Waters suffered 
any injury.  “[D]e minimis injury does not necessarily foreclose a claim.”  LaCross v. 

City of Duluth,

713 F.3d 1155, 1158

 (8th Cir. 2013) (citing Chambers,

641 F.3d at 906

.)  
But “the degree of injury suffered” bears on the reasonableness of the force used.  Grider 
v. Bowling,

785 F.3d 1248, 1252

 (8th Cir. 2015) (concluding as a matter of law that 
removing an individual “from his vehicle and placing him on the ground, without injury” 
was not an excessive use of force).  Plaintiffs have failed to establish that Sergeant 

Madson’s  use  of  force,  under  the  circumstances  of  this  case,  was  objectively 
unreasonable.  Consequently, the Court dismisses Plaintiffs’ excessive force and battery 
claims against Sergeant Madson.                                           
Plaintiffs’  excessive  force  claim  as  to  the  handcuffing  similarly  fails.  
“Handcuffing inevitably involves some use of force.”  Wertish v. Krueger,

433 F.3d 1062, 1067

 (8th Cir. 2006).  Because handcuffing “almost inevitably will result in some 
irritation,  minor injury, or discomfort,” an excessive-force claim in the context of a 
handcuffing “must demonstrate something more.”  Chambers,

641 F.3d at 907

.  Plaintiffs 
have failed to plead any type of injury other than alleged pain caused by the handcuffing.  
This claim is without merit.                                              
B.   Claims I, II, and IX: First Amendment                                

Plaintiffs contend that “handcuffing and arresting Mr. Waters,” and retaliating 
against  him,  violated  his  First  Amendment  rights  to  challenge  the  actions  of  public 
officials and to refuse to produce his identification.  (Am. Compl. ¶¶ 161-62.) 
A First Amendment claim under § 1983 requires the plaintiff to establish that 
“(1) he engaged in a protected activity, (2) the government official took adverse action 

against him that would chill a person of ordinary firmness from continuing in the activity, 
and (3) the adverse action was motivated at least in part by the exercise of the protected 
activity.”    Peterson v. Kopp,

754 F.3d 594, 602

 (8th Cir. 2014) (quoting  Revels v. 
Vincenz,

382 F.3d 870, 876

 (8th Cir. 2004)).  Additionally, a plaintiff must show that 
police officers lacked arguable reasonable suspicion in retaliatory seizure cases.  See

id.

 

(citing Galarnyk v. Fraser,

687 F.3d 1070, 1076

 (8th Cir. 2012)) (stating that the standard 
for  retaliatory  arrest  cases  is  arguable  probable  cause).    Here,  as  discussed  above, 
Sergeant Madson, Officers Smith and Newbury, and the City are entitled to qualified 
immunity because the officers had arguable reasonable suspicion to temporarily seize 
Plaintiffs.  Claims I and II are therefore dismissed.                     

Plaintiffs also argue that Captain Hawley violated Mr. Waters’s First Amendment 
rights “by refusing to communicate with, or accept written complaints” against Sergeant 
Madson and Officers Smith and Newbury.  (Am. Compl. ¶ 169.)  But the Coon Rapids 
Police Department received and fully processed the written complaint, which was closed 
because Chief Wise believed that the officers acted appropriately and in accordance with 
the law.  (See

id.

 Ex. F.)  Claim IX is without merit.                    

C.   Claim VII: Monell Violations                                         
Plaintiffs attempt to hold the City liable for allegedly violating their First, Fourth, 
and Fourteenth Amendment rights.  (Id. ¶¶ 166-67.)  Under Monell v. Department of 
Social Services,

436 U.S. 658

 (1978), Plaintiffs must establish that there is “a causal 
connection  between  the  municipal  policy  or  custom  and  the  alleged  constitutional 

deprivation.”  Ulrich v. Pope Cty.,

715 F.3d 1054, 1061

 (8th Cir. 2013).  In other words, 
the official municipal policy must cause the constitutional violation.  Bernini v. City of 
St. Paul,

665 F.3d 997, 1007

 (8th Cir. 2012) (quoting Monell,

436 U.S. at 691

)). 
Plaintiffs allege that Chief Wise ratified the allegedly unconstitutional conduct of 
the Defendant police officers by closing Mr. Waters’s formal complaint.  But Chief 

Wise’s after-the-fact determination that the officers acted lawfully cannot form the basis 
of a Monell claim because it did not cause the alleged constitutional violations.  This 
claim is without merit.  See Smithrud v. City of St. Paul,

746 F.3d 391, 397

 (8th Cir. 
2014) (upholding dismissal of Monell claims because the complaint “fail[ed] to allege 
any of the required elements”).                                           

D.   Claim V: Equal Protection Claim                                      
Plaintiffs allege that the City violated Mr. Waters’s equal protection rights by 
discriminating  against  him  based  on  his  political  or  perceived  political  beliefs,  and 
because the City treated him differently than a similarly situated citizen who monitors 
and challenges police actions.  (Am. Compl. ¶ 164.)  Because the Amended Complaint 
does not allege that Mr. Waters was in a suspect or quasi-suspect class, Plaintiffs must 

establish that Mr. Waters “has been intentionally treated differently from others similarly 
situated and that there is no rational basis for the difference in treatment.”  Vill. of 
Willowbrook v. Olech,

528 U.S. 562, 564

 (2000).                           
Plaintiffs fail to allege any plausible fact that the police officers treated Mr. Waters 
differently based on his perceived political  beliefs  or his decision to challenge their 

actions.  Moreover, Plaintiffs have not identified any similarly situated individual who 
was treated differently.  This claim is therefore without merit and is dismissed. 
E.   Claim VIII: Discrimination Based on Disability                       
Plaintiffs allege that Captain Hawley’s refusal to communicate with Mr. Waters by 
email violated anti-discrimination provisions in the Americans with Disabilities Act,

42 U.S.C. § 12132

 (“ADA”), Section 504 of the Rehabilitation Act of 1973,

29 U.S.C. § 794

 
(“Rehabilitation Act”), and the Minnesota Human Rights Act, Minn. Stat. § 363A.12 
(“MHRA”).  (Am. Compl. ¶ 168.)  The Court analyzes these alleged violations together.  
Bahl v. County of Ramsey,

695 F.3d 778, 783

 (8th Cir. 2012).  To succeed on this claim, 
Plaintiffs must show that Mr. Waters “is a qualified individual with a disability denied 
participation in, or the benefits of, the services, programs, or activities of a public entity 

because of his disability.”  Gorman v. Bartch,

152 F.3d 907

, 912 (8th Cir. 1998) (citation
omitted).
The Amended Complaint alleges that Mr. Waters suffers from “autism, Asperger’s
syndrome, post-traumatic stress disorder (PTSD), post-concussive disorder, and panic
disorders.” (Am. Compl. ¶ 133.) Even if these disabilities qualify Mr. Waters as
disabled, there is no evidence that Captain Hawley denied him any public service.

Plaintiffs allege that Mr. Waters sought to file a formal complaint against the police
officers through email, instead of in-person interviews, and Captain Hawley refused to
accommodate his allegedly reasonable request. But notably, Mr. Waters does not allege
that he actually participated in in-person interviews, and his formal complaint was fully
processed. (See id. Ex. F.) The Amended Complaint also includes no factual support for

its broad, conclusory statement that Mr. Waters was denied service because he is
disabled. This claim is therefore dismissed.
F. Remaining State Law Claims
1. Claims X, XI, and XVIII: False Imprisonment
In Claims X and XI, Plaintiffs allege that the City falsely imprisoned them. (Id.

¶¶ 170-74.) A claim of false arrest or false imprisonment against a Minnesota police
officer is valid if it alleges “(1) an arrest performed by defendant, and (2) the
unlawfulness of such arrest.” Lundeen v. Renteria,

224 N.W.2d 132, 135

 (Minn. 1974).  
Because Plaintiffs were not arrested, the false imprisonment claims against the City must 
be dismissed.                                                             

Claim XVIII alleges that Menard’s falsely imprisoned Plaintiffs.  (Am. Compl. 
¶ 184.)  In Minnesota, a claim of false imprisonment requires “(1) words or acts intended 
to confine, (2) actual confinement, and (3) awareness by the plaintiff that he is confined.”  
Blaz  v.  Molin  Concrete  Prods.  Co.,

244 N.W.2d 277, 279

  (Minn.  1976)  (citations 
omitted).  But “[a] private party ‘is not liable for false imprisonment for conveying 
information  about  suspected  criminal  activity  unless  that  party  directly  persuades  or 

commands the police to detain the suspect.’”  Shqeirat v. U.S. Airways Grp., Inc.,

645 F. Supp. 2d 765, 793

 (D. Minn. 2009) (Montgomery, J.) (quoting Smits v. Wal-Mart Stores, 
Inc.,

525 N.W.2d 554, 558

 (Minn. Ct. App. 1994) (citation omitted)).  A defendant’s 
conduct must “rise[] to the level of instructing the police to arrest a person” to impose 
liability for false imprisonment.  Smits,

525 N.W.2d at 558

 (citations omitted). 

Here,  as  discussed  above,  no  arrest  occurred.    Nor  is  there  any  allegation  or 
evidence  that  Menard’s  employees  instructed  the  police  officers  to  arrest  Plaintiffs.  
Menard’s Motion on this claim is granted.                                 
2.   Claim XIII: Defamation                                          
Plaintiffs claim that the City defamed Mr. Waters by falsely accusing him of being 

a sovereign citizen.  (Am. Compl. ¶ 176.)  Referring to Mr. Waters’s conduct, Officer 
Smith asked two Menard’s employees if they have had “any contact with sovereign 
citizens before because this is exactly what they do.”  (Zipf Aff. Ex. 2 at 14:27:59-
:28:10.)                                                                  
The City first argues that Officer Smith’s statement is not actionable.  A statement 
is not actionable in a defamation claim if the speaker expresses a “‘subjective view, an 

interpretation, a theory, conjecture, or surmise,’ rather than claiming to be in possession 
of ‘objectively verifiable facts.’”  Schlieman v. Gannett Minn. Broad., Inc.,

637 N.W.2d 297, 308

 (Minn. Ct. App. 2001) (quoting Haynes v. Alfred A. Knopf, Inc.,

8 F.3d 1222, 1227

 (7th Cir. 1993)).  Officer Smith was clearly stating her subjective view that Mr. 
Waters’s conduct was similar to that of a sovereign citizen.  Thus, her statement is not 
actionable.                                                               

Even if this statement is actionable, the City is entitled to absolute immunity.  
“Whether an executive officer is absolutely immune from defamation liability depends on 
many  factors,  including  the  nature  of  the  function  assigned  to  the  officer  and  the 
relationship of the statements to the performance of that function.”  Carradine v. State,

511 N.W.2d 733, 736

 (Minn. 1994).  “Under absolute privilege, immunity is granted 

even for intentionally false and malicious statements.”  Buchanan v. Minn. Dep’t of 
Health,

573 N.W.2d 733, 736

 (Minn. Ct. App. 1998) (citing Matthis v. Kennedy,

67 N.W.2d 413, 416

 (Minn. 1954)).                                            
In Carradine, the Minnesota Supreme Court concluded that a state trooper was 
shielded by absolute liability for allegedly defamatory remarks in his police report.

511 N.W.2d at 736-37

.  Among other things, the court reasoned that preparing an arrest report 
was “a key part of an arresting officer’s job” and subjecting an officer to civil liability in 
a defamation action may deter an officer from performing his or her duties.

Id. at 736

; 
see also Bol v. Cole,

561 N.W.2d 143

, 148 n.6 (Minn. 1997) (stating that the state trooper 
in Carradine was entitled to absolute immunity “because of the critical governmental 
interest involved”).  Carradine did not address whether absolute immunity protects an 

officers’ routine discussions during an active investigation, but the same concerns are 
clearly present.  Routine discussions during the course of an investigation are also a key 
part of a police officer’s job.  Cf. Carradine,

511 N.W.2d at 736

.  And much of these 
discussions are ultimately recorded in a police report.  Consequently, the Court concludes 
that the Officer Smith and the City are entitled to absolute immunity.  See

id. at 737

 
(“[T]he immunity enjoyed by the officer extends to the state.”).  This claim fails as a 

matter of law and is dismissed.                                           
3.   Claim XIV: Common Law Trespass                                  
Plaintiffs allege that Defendants trespassed on their automobile.  (Am. Compl. 
¶ 177.)    “A  trespass  to  chattel  may  be  committed  by  intentionally  (a)  dispossessing 
another of the chattel, or (b) using or intermeddling with a chattel in the possession of 

another.”  Strei v. Blaine,

996 F. Supp. 2d 763, 792

 (D. Minn. 2014) (Tunheim, J.) 
(citation omitted).  This claim differs “only in degree” from the tort of conversion and 
may only involve an unlawful interference with a plaintiff’s property interest.  Buzzell v. 
Citizens  Auto.  Fin.,  Inc.,

802 F. Supp. 2d 1014, 1024

  (D.  Minn.  2011)  (Kyle,  J.) 
(quotation omitted).  A trespass claim fails if a defendant had lawful justification to 

exercise control over the property.  Meixner v. Buecksler,

13 N.W.2d 754, 756

 (Minn. 
1944) (citations omitted).                                                
Even if Defendants intermeddled with Plaintiffs’ vehicle, such interference was 
lawful.  As discussed above, the City had arguable reasonable suspicion to briefly detain 
Plaintiffs.  And Menard’s detained Plaintiffs only long enough for police officers to 
arrive and conduct their own investigation.  Claim XIV is denied.         

4.   Claim XV: Invasion of Privacy—Intrusion upon Seclusion          
Plaintiffs  allege  that  this  claim  is  based  on  Defendants’  unauthorized  and 
unjustifiable search of their trunk.  (Am. Compl. ¶ 178.)  An unreasonable intrusion upon 
the seclusion requires an intentional intrusion on the solitude or seclusion of a person or 
his private affairs or concerns, “if the intrusion would be highly offensive to a reasonable 
person.”  Lake v. Wal-Mart Stores, Inc.,

582 N.W.2d 231, 233

 (Minn. 1998). 

“An intrusion occurs when an actor believes or is substantially certain that he 
lacks the necessary legal or personal permission to commit the intrusive act.”  Simons v. 
Con-Way Cent. Exp., Inc., No. 02-CV-3629,

2003 WL 22848939

, *3 (D. Minn. Nov. 17, 
2003) (citing Fletcher v. Price Chopper Foods of Trumann, Inc.,

220 F.3d 871, 875

 (8th 
Cir. 2000)).  The Amended Complaint is wholly absent of any factual allegation to 

establish  that  Defendants  believed  or  were  substantially  certain  that  they  lacked 
permission to inspect Plaintiffs’ trunk.  Therefore, no intrusion exists. 
And even if there was an intrusion, Plaintiffs allege no facts to demonstrate that 
the  intrusion  was  highly  offensive.    Whether  an  intrusion  is  “highly  offensive”  is 
generally a question of fact for the jury, however “there is a preliminary determination of 

‘offensiveness’ which must be made by the court in discerning the existence of a cause of 
action of intrusion.”  Bauer v. Ford Motor Credit Co.,

149 F. Supp. 2d 1106, 1109

 (D. 
Minn.  2001)  (Doty,  J.)  (quotation  omitted).    “Minnesota  Courts  have  indicated  that 
plaintiffs must meet a high threshold of offensiveness and expectation of privacy to have 
a viable claim for intrusion upon seclusion.”  Rasmusson v. Chisago County,

991 F. Supp. 2d 1065, 1078

  (D.  Minn.  2014)  (Nelson,  J.).    Plaintiffs  have  not  met  that 

threshold—even the police officers stated that they followed Menard’s policy.  (Am. 
Compl. Ex. A. at 46:40-:49.)  This claim is without merit and will be dismissed. 
5.   Claim XIX: Negligence Claim                                     
The Amended Complaint alleges that Defendants “breached their respective duties 
to  exercise  a  reasonable  standard  of  care  in  dealing  with  Plaintiffs,”  who  suffered 
damages.  (Id. ¶¶ 185-86.)  To prevail on a negligence claim in Minnesota, Plaintiffs must 

establish: “(1) that the defendant has a legal duty . . . ; (2) that there was a breach of that 
duty; (3) that the breach of that duty was the proximate cause of the harm to the plaintiff; 
and (4) damage.”  Gylten v. Swalboski,

246 F.3d 1139, 1141

 (8th Cir. 2001) (citing 
Gilbertson v. Leininger,

599 N.W.2d 127, 130

 (Minn. 1999)).  This claim is based on 
conclusory statements and lacks evidentiary support that Defendants breached their duty 

of care, it is therefore dismissed.  See Lightle v. Olson, No. 16-cv-15,

2017 WL 2437236

, 
at *13 (D. Minn. June 5, 2017) (Montgomery, J.) (dismissing a negligence claim that 
included only “broad conclusory statements lacking legal or evidentiary support”). 
CONCLUSION                                                                
The Amended Complaint does not contain sufficient facts to state any plausible 

claim to relief.  Accordingly, IT IS HEREBY ORDERED that:                 
1.   Defendant City of Coon Rapids’s Motion to Dismiss (Docket No. 33) is 
     GRANTED;                                                        
2.   Defendant Menard’s Motion to Dismiss (Docket No. 38) is GRANTED; 
     and                                                             
3.   The Amended Complaint (Docket No. 28) is DISMISSED with prejudice. 

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      


Dated: December 14, 2017                                                  
                              s/ Paul A. Magnuson                    
                              Paul A. Magnuson                       
                              United States District Court Judge