Berry v. Hennepin County

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Patrick Berry et al.,                  Case No. 20-cv-2189 (WMW/JFD)     

                   Plaintiffs,                                           
                                  ORDER GRANTING IN PART AND             
     v.                             DENYING IN PART COUNTY               
                                    DEFENDANTS’ MOTION TO                
Hennepin County et al.,                      DISMISS                     

                   Defendants.                                           


    Before the Court is Defendants Hennepin County and Hennepin County Sheriff 
David Hutchinson’s (County Defendants) motion to dismiss.  (Dkt. 72.)  For the reasons 
addressed below, the motion is granted in part and denied in part.        
                         BACKGROUND                                      
    This  case  arises  from  the  confluence  of  two  significant  societal  problems—
homelessness and the COVID-19 pandemic.  The individual plaintiffs in this action are 
nine individuals experiencing unsheltered homelessness in Hennepin County, Minnesota 
(Individual Plaintiffs).  Plaintiff ZACAH is a private nonprofit organization that assists 
residents of Minnesota on the verge of experiencing homelessness.         
    Plaintiffs allege that Defendants—Hennepin County, the City of Minneapolis, the 
Minneapolis Park and Recreation Board (MPRB), various county and city officials,1 and 
unnamed police officers—have conducted “sweeps” during which Defendants have seized 

1    These county and city officials are Minneapolis Mayor Jacob Frey, Minneapolis 
Chief of Police Medaria Arradondo, MPRB Superintendent Al Bangoura, MPRB Park 
and destroyed the property of persons experiencing unsheltered homelessness who live in 
encampments in Minneapolis public parks.  Plaintiffs allege that Defendants’ actions 

violate Plaintiffs’ rights as protected by the Fourth and Fourteenth Amendments to the 
United States Constitution, the Minnesota Constitution and Minnesota law.   
    On April 8, 2020, Minnesota Governor Tim Walz issued Emergency Executive 
Order 20-33 (EEO 20-33), which provides that “[e]ncampments should not be subject to 
sweeps or disbandment by state or local governments, as such sweeps or disbandment 
increase the potential risk and spread of COVID-19.”  On April 29, 2020, Governor Walz 

issued Emergency Executive Order 20-47 (EEO 20-47), which clarified EEO 20-33’s 
instructions with respect to encampments.  EEO 20-47 states that “both new and existing 
encampment[s]  should  not  be  subject  to  sweeps  or  disbandment  by  state  or  local 
governments.”  “State or local governments may restrict, limit, or close encampment 
spaces,” however, “[i]f a local government entity is providing sufficient alternate housing, 

shelter, or encampment space that complies with the Minnesota Department of Health’s 
guidance . . . and the Centers for Disease Control and Prevention’s guidance . . . or if an 
encampment has reached a size or status that is a documented threat to the health, safety, 
or security of residents.”  On May 13, 2020, Governor Walz issued Emergency Executive 
Order  20-55  (EEO  20-55),  reiterating  the  guidance  as  to  encampments  set  forth  in  

EEO 20-47.                                                                
    On June 17, 2020, the MPRB, which manages the Minneapolis park system, adopted 
Resolution  2020-253,  declaring  Minneapolis  parks  to  be  a  refuge  space  for  persons 
experiencing  unsheltered  homelessness.    Approximately  one  month  later,  the  MPRB 
adopted Resolution 2020-267, which limits the number of Minneapolis parks that can be 
refuge sites to 20 and limits, through a permitting process, the permissible number of tents 

located at each site to 25.  During August and September 2020, Minneapolis Park Police 
disbanded one of several Powderhorn Park encampments, along with encampments at 
Peavy Park, Kenwood Park and Elliot Park.                                 
    Plaintiffs’  amended  complaint  advances  five  claims.    Count  I  alleges  that 
Defendants unlawfully seized Plaintiffs’ property in violation of the Fourth Amendment to 
the United States Constitution and Article I, Section 10, of the Minnesota Constitution.  

Count II alleges that Defendants violated Plaintiffs’ right to privacy as protected by the 
Fourth Amendment to the United States Constitution and Article I, Section 10, of the 
Minnesota Constitution.  Count III alleges that Defendants violated Plaintiffs’ procedural-
due-process  rights  as  protected  by  the  Fourteenth  Amendment  to  the  United  States 
Constitution and Article I, Section 7, of the Minnesota Constitution.  Count IV alleges that 

Defendants  violated  Plaintiffs’  substantive-due-process  rights  as  protected  by  the 
Fourteenth Amendment of the United States Constitution and the Minnesota Constitution.  
And Count V alleges that Defendants are liable for the conversion of Plaintiffs’ property 
in violation of Minnesota law.  In an October 29, 2020 Order, this Court denied Plaintiffs’ 
motion for a temporary restraining order because Plaintiffs failed to establish irreparable 

harm.                                                                     
    County Defendants now move to dismiss all counts asserted against them, arguing 
that Plaintiffs lack standing, Sheriff Hutchinson is subject to qualified immunity in his 
individual capacity, and the complaint fails to state a claim on which relief can be granted.  
See Fed. R. Civ. P. 12(b)(1), 12(b)(6).  County Defendants also argue that Plaintiffs have 
inadequately pleaded punitive damages.                                    

                           ANALYSIS                                      
    I.   Standing                                                        
    County  Defendants  argue  that  dismissal  is  warranted  because  Plaintiffs  lack 
standing.  As standing implicates a federal court’s subject-matter jurisdiction, the Court 
addresses  standing  first.    Article  III  of  the  United  States  Constitution  limits  federal 
jurisdiction to actual cases and controversies.  U.S. Const. art. III, § 2, cl. 1; Lujan v. Defs. 

of Wildlife, 

 (1992).  As a jurisdictional prerequisite, standing must be 
established before the merits of a claim may be reached.  See, e.g., McCarney v. Ford 
Motor Co., 

 (8th Cir. 1981).                             
    A  defendant  may  challenge  a  plaintiff’s  complaint  for  lack  of  subject-matter 
jurisdiction either on its face or on the factual truthfulness of its averments.  See Fed. R. 

Civ. P. 12(b)(1); Titus v. Sullivan, 

 (8th Cir. 1993).  When deciding a Rule 
12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a court “must distinguish 
between a ‘facial attack’ and a ‘factual attack.’ ”  Osborn v. United States, 

, 
729 n.6 (8th Cir. 1990) (quoting Mechaca v. Chrysler Credit Corp., 

 (5th 
Cir.  1980)).    A  factual  attack  challenges  the  existence  of  subject-matter  jurisdiction 

irrespective of the allegations in the complaint.  Branson Label, Inc. v. City of Branson, 

, 914–15 (8th Cir. 2015).  When ruling on a factual attack, as here, the district 
court may consider matters outside the pleadings, and the nonmoving party proceeds 
without “the benefit of [Rule] 12(b)(6) safeguards.”  Osborn, 

 n.6.   
    To establish standing, a plaintiff must allege (1) an injury in fact, (2) a causal 
relationship between the opposing party’s conduct and the alleged injury, and (3) that the 

injury would likely be redressed by a favorable decision.  Lujan, 504 U.S. at 560–61.  
County Defendants challenge ZACAH’s standing, arguing that ZACAH has satisfied 
neither the injury-in-fact nor the redressability element.  County Defendants also challenge 
the traceability element as to Individual Plaintiffs’ Article III standing.  These arguments 
are addressed in turn.                                                    

    A.   Injury in Fact                                                  
    County Defendants argue that ZACAH lacks standing because ZACAH has not 
suffered an injury in fact.  Plaintiffs counter that the encampment sweeps perpetrated by 
County Defendants caused ZACAH a concrete and particularized injury.      
    When determining whether an organization has standing, a court conducts “the same 
inquiry as in the case of an individual: Has the plaintiff alleged such a personal stake in the 

outcome  of  the  controversy  as  to  warrant  his  [or  her]  invocation  of  federal-court 
jurisdiction?”  Havens Realty Corp. v. Coleman, 

, 378–79 (1982) (internal 
quotation marks omitted).  In Havens, an organization alleged that it suffered an injury by 
having to devote resources to counteract the defendant’s allegedly racially discriminatory 
housing practices.  

.  The Supreme Court of the United States recognized that this 

alleged  harm  was  “more  than  simply  a  setback  to  the  organization’s  abstract  social 
interests,” but instead was a “concrete and demonstrable injury to the organization’s 
activities,” concluding that there was “no question that the organization has suffered injury 
in fact.”  

                                                            
    Here, ZACAH alleges that it has spent approximately $113,000, and approximately 
50 to 60 hours per week, funding and otherwise securing hotel rooms for displaced people 

on an emergency basis.  ZACAH alleges that, but for Defendants’ actions, it could have 
used  those  resources  to  further  its  organizational  mission  of  preventing  people  from 
experiencing homelessness.  These allegations are sufficient to establish the injury-in-fact 
requirement of Article III standing.  See, e.g., Granville House, Inc. v. Dep’t of Health & 
Human Servs., 

 (8th Cir. 1983) (concluding that the nexus between 
the nonprofit’s purpose, the challenged statute’s purpose and the nonprofit’s economic 

injury established standing).                                             
    Because ZACAH has established an injury in fact, County Defendants’ motion to 
dismiss ZACAH’s claims on this basis is denied.                           
    B.   Traceability                                                    
    County Defendants next argue that Individual Plaintiffs lack standing because their 

alleged injuries are not fairly traceable to County Defendants’ actions.  Individual Plaintiffs 
disagree, asserting that County Defendants are among the parties responsible for Individual 
Plaintiffs’ injuries.                                                     
    To have standing, a plaintiff must allege an injury that is fairly traceable to the 
allegedly unlawful conduct and is not the consequence of independent actions of a third 

party that is not before the court.  Lujan, 

.  An injury that is fairly traceable 
also must be “certainly impending,” not speculative.  Clapper v. Amnesty Int’l USA, 

, 401–02 (2013); Whitmore v. Arkansas, 

 (1990).  Importantly, 
the standing inquiry is not an assessment of the merits of the claim.  Red River Freethinkers 
v. City of Fargo, 

 (8th Cir. 2012).                    

    Here, Plaintiffs allege that the MPRB asked Sheriff Hutchinson for “approval” when 
implementing Resolution 2020-267 to clear encampments and that Sheriff Hutchinson 
dispatched deputies to assist with the sweeps.  Although they dispute the specific role they 
played in the clearing process, County Defendants do not dispute that their deputies were 
present at and did not obstruct the clearance of the encampments on three occasions.  
Therefore, there is some connection between Individual Plaintiffs’ alleged injuries and 

County Defendants’ actions such that the traceability element of standing is satisfied.  
Accordingly, County Defendants’ motion to dismiss on this basis is denied.  
    C.   Redressability                                                  
    The parties next dispute whether ZACAH’s injuries are redressable.2  The third 
element of Article III standing requires a plaintiff to demonstrate that it is likely—not 

merely speculative—that the remedy the plaintiff seeks can redress the alleged injuries.  
Lujan, 

; Frost, 920 F.3d at 1161.                          
    Here, County Defendants maintain that ZACAH has not shown that it is likely—
rather than merely speculative—that a favorable decision against County Defendants will 
redress the injury ZACAH alleges because County Defendants would not thereby be 


2    County Defendants raise the issue of standing in their motion to dismiss, but they 
do not specifically challenge whether ZACAH’s alleged injuries are redressable until their 
reply brief.  Courts typically do not address arguments raised for the first time in a reply 
brief.  But, because subject-matter jurisdiction is a threshold requirement in every federal 
lawsuit, Green Acres Enters., Inc. v. United States, 

, 856 (8th Cir. 2005), the 
required to provide emergency housing to unsheltered persons.  But if County Defendants 
are enjoined from removing people from outdoor encampments, fewer people will require 

hotel rooms on an emergency basis.  ZACAH, in turn, likely would devote fewer resources 
to securing hotel rooms, leaving ZACAH more time and money to spend on its mission of 
preventing homelessness.  Therefore, ZACAH’s injury is redressable.       
    In summary, County Defendants’ motion to dismiss on the basis of Article III 
standing is denied.                                                       

    II.  Failure to State a Claim                                        
    A complaint must be dismissed if it fails to state a claim on which relief can be 
granted.  Fed. R. Civ. P. 12(b)(6).  To survive a Rule 12(b)(6) motion, the complaint must 
allege sufficient facts that, when accepted as true, state a facially plausible claim to relief.  
Ashcroft v. Iqbal, 

 (2009).  When determining whether the complaint 
states such a claim, a district court accepts as true all factual allegations in the complaint 

and draws all reasonable inferences in the plaintiff’s favor.  Blankenship v. USA Truck, 
Inc., 

 (8th Cir. 2010).  The factual allegations need not be detailed, but 
they must be sufficient to “raise a right to relief above the speculative level” and “state a 
claim to relief that is plausible on its face.”  Bell Atl. Corp. v. Twombly, 

 (2007).  A plaintiff, however, must offer more than “labels and conclusions” or a 

“formulaic recitation of the elements of a cause of action.”  

.  Legal conclusions 
that are couched as factual allegations may be disregarded by the district court.  See Iqbal, 
556 U.S. at 678–79.                                                       
    A.   Municipal Liability                                             
    The parties dispute whether Plaintiffs have sufficiently pleaded municipal liability 

pursuant to 

.                                             
    Section 1983 provides a civil cause of action against:               
         [e]very person who, under color of any statute, ordinance,      
         regulation, custom, or usage, of any State . . . subjects, or   
         causes to be subjected, any citizen of the United States . . . to 
         the deprivation of any rights, privileges, or immunities secured 
         by the Constitution and laws . . . .                            

.  A Section 1983 claim against a municipality cannot be based on 
vicarious liability.  See Bd. of Cnty. Comm’rs v. Brown, 

 (1997).  But a 
municipality may be subject to Section 1983 liability if the inadequate training of its 
employees, a municipal policy or an unofficial municipal custom causes a constitutional 
injury.  See City of Canton v. Harris, 

 (1989) (training); Monell v. Dep’t 
of Soc. Servs., 

 (1978) (policy or custom); see also Bd. of Cnty. Comm’rs, 
520 U.S. at 403–04.                                                       
    As  Plaintiffs  have  not  alleged  that  their  constitutional  injury  was  caused  by 
inadequate training, Plaintiffs’ Section 1983 claim against County Defendants necessarily 
is based on either an official policy or an unofficial custom.  See Corwin v. City of 
Independence, 

, 699–700 (8th Cir. 2016).  “Policy and custom are not the 
same thing.”  

                                                         
    “[A] policy is an official policy, a deliberate choice of a guiding principle or 
procedure made by the municipal official who has final authority regarding such matters.”  
Mettler v. Whitledge, 

, 1204 (8th Cir. 1999) (internal quotation marks 
omitted).  “[W]hether an official had final policymaking authority is a question of state 
law.”  Pembaur v. City of Cincinnati, 

 (1986) (noting that “[a]uthority to 

make municipal policy may be granted directly by a legislative enactment or may be 
delegated  by  an  official  who  possesses  such  authority”).    Courts  consult  applicable 
municipal charters, codes or ordinances to determine whether an official has policymaking 
authority.  See Davison v. City of Minneapolis, 

 (8th Cir. 2007).  Plaintiffs 
have not identified an official county policy or alleged facts that would support the 
existence of an official policy.  Nor have Plaintiffs cited any law bestowing policymaking 

authority on Sheriff Hutchinson or alleged that Sheriff Hutchinson is a policy maker.  The 
Court must, therefore, analyze whether Plaintiffs have adequately alleged an unofficial 
county custom.                                                            
    To state a claim for Section 1983 liability based on a county custom, a plaintiff must 
plead facts that establish (1) “the existence of a continuing, widespread, persistent pattern 

of unconstitutional misconduct” committed by the county’s employees; (2) “deliberate 
indifference to or tacit authorization” of the misconduct by policymaking officials after 
those officials have received notice of the misconduct; and (3) that the plaintiff was injured 
by acts pursuant to the custom, such that “the custom was a moving force behind the 
constitutional violation.”  Corwin, 

.  Even if a plaintiff is not privy to the 

facts necessary to describe with specificity the alleged custom, the complaint must allege 
facts that would support the existence of a custom.  Crumpley-Patterson v. Trinity Lutheran 
Hosp., 

, 591 (8th Cir. 2004).                                 
    Because it is dispositive of the issue presented here, the Court begins with the 
second element, which requires a plaintiff to “allege facts showing that policymaking 

officials had notice of or authorized” the misconduct.  Kelly v. City of Omaha, 

 (8th Cir. 2016) (affirming dismissal of Section 1983 claim against municipality 
that failed to allege such facts).  Merely referencing previous complaints made against a 
local government employee, without more, is insufficient to state a claim for Section 1983 
liability based on a custom.  See id.; cf. Mettler, 165 F.3d at 1205 (explaining that plaintiff 
would need to show that the local government “had failed to investigate previous incidents 

before a court could conclude” that law enforcement officers “believed a municipal custom 
allowed  them  to  violate  [plaintiff’s]  rights  with  impunity”);  Hassuneh  v.  City  of 
Minneapolis, 

 (D. Minn. 2008) (granting municipality’s motion 
for summary judgment when plaintiffs did not “provide any evidence that the City of 
Minneapolis was on notice of the alleged constitutional violation and that the City was 

deliberately indifferent or authorized the alleged constitutional violation”).   
    Plaintiffs do not allege any facts that, if proven, would establish that a policymaking 
official received notice of any alleged constitutional violations committed by County 
Defendants’ employees.  Nor do Plaintiffs allege that a policymaking official authorized 
or was deliberately indifferent to the alleged constitutional violations committed by County 

Defendants’ employees.  And there are no alleged facts from which such an inference could 
reasonably  be  drawn.    Because  Plaintiffs  have  not  alleged  any  facts  to  support  this 
necessary element of a claim for Section 1983 liability based on a county custom, Plaintiffs 
have failed to state a Section 1983 claim against County Defendants.3  Accordingly, the 
Court must dismiss the Plaintiffs’ federal constitutional claims against County Defendants 

premised on Section 1983 liability, and therefore grant County Defendants’ motion to 
dismiss all such claims against them.                                     
    B.   Qualified Immunity                                              
    County Defendants also argue that Sheriff Hutchinson, in his individual capacity, is 
subject to qualified immunity.  Plaintiffs disagree.                      
    Qualified immunity “protects government officials from liability for civil damages 

insofar as their conduct does not violate clearly established statutory or constitutional rights 
of which a reasonable person would have known.”  Pearson v. Callahan, 

 (2009) (internal quotation marks omitted).  On a motion to dismiss, qualified immunity 
warrants dismissal “only when the immunity is established on the face of the complaint.”  
Hafley v. Lohman, 

 (8th Cir. 1996) (internal quotation marks omitted).  To 

determine  whether  an  official  is  entitled  to  qualified  immunity,  courts  consider 
“(1) whether  the  facts  alleged  or  shown,  construed  most  favorably  to  the  plaintiffs, 
establish a violation of a constitutional right, and (2) whether that constitutional right was 
clearly established at the time of the alleged misconduct, such that a reasonable official 
would have known that the acts were unlawful.”  Small v. McCrystal, 

 

(8th Cir. 2013).  A court may consider these qualified-immunity factors in any order.  
Pearson, 

.                                                 

3    In light of the foregoing conclusion, the Court need not address whether Plaintiffs 
have adequately alleged a continuing, widespread, persistent pattern of unconstitutional 
    Qualified  immunity  “protects  all  but  the  plainly  incompetent  or  those  who 
knowingly violate the law.”  Messerschmidt v. Millender, 

 (2012) 

(internal quotation marks omitted).  When performing a qualified-immunity analysis, a 
district court assesses the facts as they appeared to the relevant state actors.  Greiner v. City 
of Champlin, 

 (8th Cir. 1994).  A “clearly established” right does not 
require a case directly on point.  Hope v. Pelzer, 

 (2002).  Rather, the key 
inquiry is whether the state actor had fair warning that the conduct violated a right.  

  
The Supreme Court of the United States has cautioned against defining “clearly established 

right” with an excessive degree of generality.  Plumhoff v. Rickard, 

, 778–79 
(2014).  “[C]learly established law must be particularized to the facts of the case.”  White 
v. Pauly, 

 (2017) (internal quotation marks omitted).   
    To prove that the relevant law was clearly established at the time that Sheriff 
Hutchinson  allegedly  violated  Plaintiffs’  property,  privacy  and  due-process  rights, 

Plaintiffs “must point to existing circuit precedent that involves sufficiently similar facts 
to squarely govern the individual defendants’ conduct in the specific circumstances at issue” 
or, if no such binding precedent exists,  “present a robust consensus of persuasive authority 
constituting settled law.”  Bus. Leaders in Christ v. Univ. of Iowa, 

 (8th 
Cir. 2021) (internal quotation marks and brackets omitted); accord Lane v. Nading, 

 (8th Cir. 2019) (addressing qualified immunity in the context of a motion 
to dismiss).  Here, although Plaintiffs identify case law from the Supreme Court and the 
United States Court of Appeals for the Eighth Circuit, the cases cited do not involve 
sufficiently similar facts to squarely govern Sheriff Hutchinson’s conduct in the specific 
circumstances at issue.  See, e.g., Rakas v. Illinois, 

, 142–44 (1978) (clarifying, 
in a case involving the search of an automobile,  that the statement in Jones v. United States, 

 (1960), “that a person need only be ‘legitimately on the premises’ in order to 
challenge the validity of the search of a dwelling place cannot be taken in its full sweep 
beyond the facts of that case”); Silverman v. United States, 

, 511–12 (1961) 
(holding unconstitutional a warrantless wiretap of an alleged gambling establishment); 
Robbins v. City of Des Moines, 

 (8th Cir. 2021) (discussing brief 
detention of personal effects in the context of a seizure of the detained plaintiff’s phone 

and camera, which he had been using to record the police); Walters v. Wolf, 

, 
313–14 (8th Cir. 2011) (addressing the seizure of a fugitive’s gun following a traffic stop 
of his car and discovery of an outstanding warrant for his arrest).       
    Therefore, Sheriff Hutchinson in his individual capacity is subject to qualified 
immunity  and  County  Defendants’  motion  to  dismiss  is  granted  in  this  respect.  

Accordingly, to the extent that Plaintiffs seek damages against Sheriff Hutchinson in his 
individual capacity, Sheriff Hutchinson is immune from such claims.       
    C.   Unlawful Seizure of Personal Property (Counts I & II)           
    County Defendants argue that Plaintiffs fail to state a claim for unlawful seizure of 
Individual  Plaintiffs’  personal  property  in  violation  of  Article  I,  Section  10,  of  the 

Minnesota Constitution.4                                                  


4    Although Plaintiffs split their claim for unlawful seizure of their property into two 
separate counts in their complaint, the Court can discern no meaningful distinction between 
the two counts.  The Court therefore analyzes these duplicative counts together.  
    Article I, Section 10, of the Minnesota Constitution provides that “[t]he right of the 
people to be secure in their persons, houses, papers, and effects against unreasonable 

searches and seizures shall not be violated; and no warrant shall issue but upon probable 
cause, supported by oath or affirmation, and particularly describing the place to be searched 
and the person or things to be seized.”  Minn. Const. Art. I, § 10.  “Ordinarily, [Minnesota 
courts] analyze federal and state protections guaranteed by the Fourth Amendment to the 
United States Constitution and Article I, Section 10, of the Minnesota Constitution as co-
extensive.”  In re Welfare of M.L.M., 

 (Minn. Ct. App. 2010).5  When 

analyzing an alleged unlawful seizure, courts must determine whether the plaintiff had a 
reasonable expectation of privacy with respect to the place searched or property seized and 
whether the search and seizure of the property was reasonable under the circumstances.  
See O’Connor v. Ortega, 

 (1987).                         
    For a plaintiff to prove that a legitimate expectation of privacy was violated by the 

challenged search and seizure, the plaintiff must establish that (1) the plaintiff “asserted a 
subjective expectation of privacy” in the place searched or the object seized, and (2) the 
plaintiff’s “subjective expectation is objectively reasonable.”  United States v. Kiser, 

 (8th Cir. 1991).  The parties do not contest that Individual Plaintiffs had a 
subjective expectation of privacy with respect to their personal belongings.  The parties 



5    Occasionally  Minnesota  courts  will  “reach[  ]  conclusions  regarding  Article  I, 
Section 10, of the Minnesota Constitution that depart[ ] from decisions of the Supreme 
Court interpreting the identical language of the Fourth Amendment.”  State v. Carter, 

 (Minn. 1999).  The circumstances that warrant such a departure are not 
dispute whether Individual Plaintiffs’ subjective expectation of privacy was objectively 
reasonable.                                                               

    “Determining whether an expectation of privacy is ‘legitimate’ or ‘reasonable’ 
necessarily entails a balancing of interests.”  Hudson v. Palmer, 

 (1984).  
Courts must balance the government’s interest in invading an individual’s privacy against 
the individual’s privacy interest.  See 

  Individual Plaintiffs allege that they have a 
protected  property  interest  in  their  personal  belongings.    County  Defendants  have  a 
countervailing  interest  in  disbanding  encampments  to  promote  the  general  welfare, 

including by preventing the further spread of COVID-19 in the midst of a global pandemic 
and deterring unsafe and unhealthy living conditions.                     
    An  individual’s  right  to  privacy  in  the  home  almost  always  outweighs  the 
government interest in invading that private domain.  See Kyllo v. United States, 

 (2001).  A house—whether rented or owned—is therefore indisputably a “home” 

such that its occupant has a reasonable expectation of privacy therein.  See Chapman v. 
United States, 

 (1961).  Hotel rooms also have been found to be akin to 
a home in which a person has a reasonable expectation of privacy.  See Stoner v. California, 

 (1964); Lustig v. United States, 

, 79–80 (1949).  Plaintiffs 
have not identified any legal authority demonstrating that a tent pitched unlawfully on 

public land is a home such that its owner has an objectively reasonable expectation of 
privacy.  Cf. United States v. Voice, 

 (8th Cir. 2010) (declining to decide 
whether a person has a reasonable expectation of privacy in unattended closed bags in a 
public place “because any error in admission of the evidence in question was harmless”).      
    Unlike houses, apartments, and hotel rooms, which are considered the quintessential 
example of “homes” wherein a person has a subjective expectation of privacy, Individual 

Plaintiffs’ tents are pitched on public—rather than private—property and have been erected 
unlawfully.  Taken together, Individual Plaintiffs’ unlawful erection of tents on public land 
paired with County Defendants’ strong interest in promoting the general welfare establish 
that Individual Plaintiffs do not have an objectively reasonable expectation of privacy in 
their property such that they could not be subject to an encampment sweep that includes 
the seizure of their personal property. 6                                 

     A temporary deprivation of personal property is different from a permanent one, 
however.  United States v. Jacobsen, 

 (1984).  A “seizure lawful at its 
inception can nevertheless violate the Fourth Amendment because its manner of execution 
unreasonably infringes possessory interests protected by the [constitutional] prohibition on 
unreasonable seizures.”  

 (internal quotation marks omitted).  When “a temporary 

deprivation of possessory interests [becomes] a permanent one,” courts must “balance the 
nature and quality of the intrusion on the individual’s [constitutional] interests against the 
importance of the governmental interests alleged to justify the intrusion.”  

 
(internal quotation marks omitted).  A permanent deprivation is permissible when it is 
necessary to achieve the government’s permissible ends.  

 (finding permissible the 

destruction  of  powder  in  order  to  effect a  field  test for  contraband).    Here, County 

6    The United States Court of Appeals for the Ninth Circuit’s decision holding that a 
camping tent pitched on a public campground where one is legally permitted to camp is a 
home, United States v. Gooch, 

, 677–78 (9th Cir. 1993), is not inconsistent with 
this Court’s analysis.  Unlike the circumstances here, Gooch involved a public space 
Defendants’  interest  is  in  promoting  the  general  welfare—keeping  citizens  safe  and 
preventing the spread of COVID-19.  Plaintiffs’ countervailing interest is in retaining or 

reclaiming  possession  of  their  personal  property,  including  important  documents  and 
irreplaceable personal effects.  Taking Plaintiffs’ allegations as true, as required on a 
motion to dismiss, County Defendants could have achieved its legitimate public welfare 
goals  if  they  had  cleared  the  homeless  encampments  without  permanently  depriving 
Individual Plaintiffs of their personal property by destroying that property. 
    Therefore, Individual Plaintiffs have plausibly alleged a violation of their right to 

be secure against the unreasonable seizure of their property, pursuant to Article I, Section 
10, of the Minnesota Constitution.  Accordingly, County Defendants’ motion to dismiss 
Plaintiffs’ state-law unlawful-seizure claims (Counts I and II), as alleged against County 
Defendants, is denied.                                                    
    D.   Procedural Due Process (Count III)                              

    County Defendants argue that Plaintiffs fail to state a procedural-due-process claim 
because the complaint fails to allege that County Defendants seized Individual Plaintiffs’ 
personal property without adequate process.  Plaintiffs counter that County Defendants 
provided Individual Plaintiffs no process at all.                         
     “The due process protection provided under the Minnesota Constitution is identical 

to the due proces[s] guaranteed under the Constitution of the United States.” State v. 
Krause, 

 (Minn. 2012) (alteration in the original) (internal quotation 
marks omitted).   Procedural-due-process claims are reviewed in two steps: a court first 
determines whether the plaintiff was deprived of a protected liberty or property interest 
and, if so, the court determines whether government officials followed constitutionally 
sufficient  procedures.    Jenner  v. Nikolas, 

  (8th  Cir.  2016)  (citing 

Swarthout v. Cooke, 

 (2011)).  “Protected liberty interests may arise from 
the Due Process Clause itself or from an expectation or interest created by state law or 
policies.”  

  The focus of a procedural-due-process claim is not on the merits of a 
deprivation, “but on whether the State circumscribed the deprivation with constitutionally 
adequate procedures.”  Parrish v. Mallinger, 

 (8th Cir. 1998).  Here, it 
is undisputed that Individual Plaintiffs have a property interest in their personal belongings.  

Accordingly, the dispute is whether County Defendants provided Individual Plaintiffs with 
a constitutionally adequate process before depriving Individual Plaintiffs of their property.  
    The “general rule [is] that individuals must receive notice and an opportunity to be 
heard before the Government deprives them of property.”  United States v. James Daniel 
Good Real Prop., 

 (1993).  Although it does not appear that the Eighth 

Circuit has decided what process is due in the unique circumstances presented here, other 
courts analyzing claims with similar facts have concluded that the relevant process may 
include notice, the provision of storage for certain items and the ability to reclaim property 
within a defined period of time.  “In the context of collection or destruction of the 
possessions of people experiencing homelessness that are left unattended in a public space, 

courts have found that minimally, the municipality must provide advance notice and a 
meaningful way to collect the property.”  Phillips v. City of Cincinnati, 

, 646 (S.D. Ohio 2020) (collecting cases); see also Denver Homeless Out Loud v. 
Denver, 

, 1292 (D. Colo. 2021) (concluding that the plaintiffs’ 
Fourteenth Amendment procedural-due-process claim was likely to succeed on the merits 
in  a  case  brought  by  homeless  people  who  did  not  receive  notice  of  an  impending 

encampment sweep until the morning it occurred, giving the plaintiffs “little time to collect 
and remove their belongings prior to the commencement of the sweeps”).    
    Here, the complaint alleges that County Defendants violated Individual Plaintiffs’ 
procedural-due-process rights by seizing and destroying Individual Plaintiffs’ property 
without providing Individual Plaintiffs (1) adequate or effective notice, (2) an opportunity 
to be heard, or (3) a pre- or post-deprivation mechanism to challenge or reclaim their 

property.  County Defendants do not present any argument as to their failure to provide 
notice or an opportunity to be heard.7  County Defendants argue only that Individual 
Plaintiffs have a meaningful post-deprivation remedy in the form of 

.  
This statute provides that, subject to certain limitations, “every municipality is subject to 
liability for its torts and those of its officers, employees and agents acting within the scope 

of  their  employment  or  duties  whether  arising  out  of  a  governmental  or  proprietary 
function.”  

.  Plaintiffs counter that 

 is not an 
adequate post-deprivation remedy and that meaningful pre-deprivation procedures for 
encampment sweeps are available but were not used.                        
     “[A]n unauthorized intentional deprivation of property by a state employee does 

not constitute a violation of” procedural due process “if a meaningful postdeprivation 
remedy for the loss is available.”  Hudson v. Palmer, 

 (1984).  When 

7    County Defendants appear to suggest that Plaintiffs’ belongings were abandoned.  
This is contrary to the allegations in the complaint, which are accepted as true for the 
determining  whether  a  procedural-due-process  violation  has  occurred  despite  the 
availability of a postdeprivation remedy, “[t]he controlling inquiry is solely whether the 

state is in a position to provide for predeprivation process.”  

.  Here, County 
Defendants do not argue that they were unable to provide predeprivation process or that 
predeprivation process was impracticable.  See 

.  Therefore, whether 

 constitutes an adequate postdeprivation process is not dispositive as to whether 
Plaintiffs have stated a procedural-due-process claim.                    
    For these reasons, County Defendants’ motion to dismiss Plaintiffs’ procedural-due-

process claim (Count III) as alleged against the County Defendants is denied. 
    E.   Substantive Due Process (Count IV)                              
    County Defendants argue that Plaintiffs fail to state a substantive-due-process claim.  
The substantive-due-process protections of the Minnesota Constitution are co-extensive 
with those of the United States Constitution.  See State v. Rey, 

, 493–94 

(Minn. 2018).  To state a substantive-due-process claim, a plaintiff must allege both that 
the government’s actions were “conscience-shocking[ ] and that the [conduct] violated one 
or more fundamental rights that are deeply rooted in this Nation’s history and tradition, and 
implicit in the concept of ordered liberty, such that neither liberty nor justice would exist 
if they were sacrificed.”  Karsjens v. Piper, 

 (8th Cir. 2017) (quoting 

Moran v. Clarke, 

 (8th Cir. 2002) (en banc)); see also Washington v. 
Glucksberg, 

, 720–21 (1997).  Here, Plaintiffs assert fundamental rights to 
property, privacy and to be safe from state-created dangers.              
         1.  Property                                                    
    County  Defendants  argue  that  Plaintiffs’  property-related  claims  are  properly 

analyzed as violations of their right to be free from unreasonable seizure of property and 
their right to procedural due process, not as violations of Plaintiffs’ substantive-due-
process rights.   “[I]f a constitutional claim is covered by a specific constitutional provision, 
. . . 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, 

, 
272 n.7 (1997); Graham v. Connor, 

 (1989) (holding, in a use of force 

case,  that  “[b]ecause  the  Fourth  Amendment  provides  an  explicit  textual  source  of 
constitutional protection against this sort of physically intrusive governmental conduct, 
that Amendment, not the more generalized notion of ‘substantive due process,’ must be the 
guide for analyzing these claims”).  Because Plaintiffs’ alleged property-related claims are 
more properly analyzed under an unlawful seizure analysis pursuant to Minnesota’s state 

constitutional  analogue  to  the  Fourth  Amendment,  the  Court  declines  to  apply  a 
substantive-due-process analysis.                                         
         2.  Privacy                                                     
    County Defendants argue that, to the extent that Plaintiffs’ substantive-due-process 
claim is based on privacy, Plaintiffs’ claim fails because there is no fundamental right to 

sleep or erect structures in a public place.  Plaintiffs counter that they have a right to privacy 
in their home, including their encampment tents.                          
    Courts must exercise extreme caution when elevating particular interests to the 
status of fundamental constitutional rights because recognizing these rights, “to a great 
extent, place[s] the matter outside the arena of public debate and legislative action” and 
risks transforming the Due Process Clause into a court’s policy preferences.  Glucksberg, 

.  When determining whether a right is fundamental, courts require “a 
careful description of the asserted fundamental liberty interest.”  

 (internal 
quotation marks omitted).  Vague generalities are insufficient.  Chavez v. Martinez, 

 (2003).                                                     
    In their complaint, Plaintiffs allege that they have a constitutionally protected right 
to privacy in their personal affairs and in their property.  Plaintiffs allege that County 

Defendants’  forceful  ejection  of  Individual  Plaintiffs  and  destruction  of  Individual 
Plaintiffs’ property constitutes an unlawful disturbance of Plaintiffs’ private affairs and an 
invasion of privacy in their belongings.  Plaintiffs appear to assert a general right to privacy 
in their encampments under any circumstances.  But these general, vague assertions are not 
“a careful description of the asserted fundamental liberty interest.”  Glucksberg, 

 (internal quotation marks omitted).  And although the right to privacy under the 
Minnesota  constitution  is broader  than  the  federal  constitutional  protections,  State  v. 
Davidson,  

  (Minn.  1992),  Plaintiffs  cite  no  legal  authority  that 
recognizes a privacy right to “safely sleep on public land when no alternative exists.”  Nor 
has the Court’s research identified any.                                  

    Therefore,  County  Defendants’  motion  to  dismiss  Plaintiffs’  substantive-due-
process claim based on privacy interests, as alleged in Count IV of the complaint, is 
granted.                                                                  
         3.  State-Created Danger                                        
    Plaintiffs identify no state-created-danger doctrine under Minnesota law.  Even if 

the federal state-created-danger doctrine applied, Plaintiffs do not allege a state-created 
danger because inclement weather and the COVID-19 pandemic, although dangerous, were 
not created by the state.  See Hart v. City of Little Rock, 

 (8th Cir. 2005) 
(holding that substantive due process requires the government to protect individuals “if it 
created  the  danger  to  which  the  individuals  are  subjected”).    Therefore,  County 
Defendants’ motion to dismiss Plaintiffs’ substantive-due-process claim based on a state-

created danger, as alleged in Count IV of the complaint, is granted.      
    In  summary,  Plaintiffs’  substantive-due-process  claim  (Count  IV),  as  alleged 
against County Defendants, is dismissed in all respects.                  
    F.   Conversion (Count V)                                            
    County Defendants argue that Plaintiffs fail to state a claim for conversion because 

the  complaint  includes  no  allegations  that  Sheriff  Hutchinson  or  Hennepin  County 
personnel seized or destroyed any of Individual Plaintiffs’ personal property.  Plaintiffs 
counter that County Defendants’ actions were a substantial factor in depriving Individual 
Plaintiffs of the use and possession of their property.                   
    Minnesota law defines conversion as “an act of willful interference with personal 

property, done without lawful justification by which any person entitled thereto is deprived 
of use and possession.”  DLH, Inc. v. Russ, 

 (Minn. 1997) (internal 
quotation marks omitted).  “The elements of common law conversion are (1) the plaintiff 
has a property interest and (2) the defendant deprives the plaintiff of that interest.”  Lassen 
v. First Bank Eden Prairie, 

 (Minn. Ct. App. 1994); accord In re 
WEB2B Payment Sols., Inc., 

 (8th Cir. 2016).  Here, Individual Plaintiffs’ 

property interests are undisputed.  Accordingly, only the second element—causation—is 
at issue.  “Causation exists if a defendant’s tortious conduct was a substantial factor in 
bringing about the injury.”  Gits v. Norwest Bank Minneapolis, 

 
(Minn. Ct. App. 1986) (citing Flom v. Flom, 

 (Minn. 1980)).   
    Plaintiffs allege that County Defendants assisted in clearing encampments and that 
the  MPRB  stated  that  it  could  not  have  cleared  the  encampments  without  County 

Defendants’  assistance.    Such  facts  are  sufficient  to  plausibly  allege  that  County 
Defendants’ actions were a substantial factor in depriving Individual Plaintiffs of their 
property interests.  Therefore, County Defendants’ motion to dismiss Count V is denied.  
    G.   Punitive Damages                                                
    County Defendants argue that the complaint fails to state a claim for punitive 

damages as to their state-law claims for three reasons: (1) state law bars an award of 
punitive damages against Hennepin County, (2) Plaintiffs fail to plausibly allege that 
Sheriff Hutchinson’s conduct was motivated by evil motive or intent, and (3) Plaintiffs fail 
to satisfy the requirements of 

, 549.20.8           
    “[T]he selection of an improper remedy in the Rule 8(a)(3) demand for relief will 

not be fatal to a party’s pleading if the statement of the claim indicates the pleader may be 
entitled to relief of some other type.”  Dingxi Longhai Dairy, Ltd. v. Becwood Tech. Grp. 

8    Because the Court has dismissed Plaintiffs’ federal-law claims against County 
Defendants for the reasons addressed in Part II.A. of this Order, County Defendants’ 
L.L.C., 

 (8th Cir. 2011) (quoting 5 Wright & Miller, Federal Practice 
and Procedure: Civil 3d § 1255 at 508–09 (3d ed. 2004)); see also Bontkowski v. Smith, 

 (7th Cir. 2002) (stating that “the demand [for relief] is not itself a part 
of the plaintiff’s claim and so failure to specify relief to which the plaintiff was entitled 
would not warrant dismissal under Rule 12(b)(6)” (internal citations omitted)); Laird v. 
Integrated Resources, Inc., 

, 841–42 (5th Cir. 1990) (asserting that the court 
has “consistently interpreted [Rule 8(a)(3)] to allow a plaintiff any relief that the pleaded 
claim supports; requesting an improper remedy is not fatal”); Schoonover v. Schoonover, 

 (10th Cir. 1949) (explaining that “the prayer forms no part of the cause 
of action, and . . . a pleader will be entitled to the relief made out by the case and stated in 
the pleadings, irrespective of what is asked for in the prayer”).  “The amount of damages 
to be recovered is based upon the proof, not the pleadings.”  Dingxi, 635 F.3d at 1108–09. 
    For the reasons addressed above, Plaintiffs have plausibly alleged violations of their 

state-law rights in Counts I, II, III, and V.  Because the propriety of the relief Plaintiffs 
seek is irrelevant to evaluating a motion to dismiss, the Court does not address the propriety 
of the relief Plaintiffs seek.  For these reasons, the Court denies County Defendants’ motion 
to dismiss Plaintiffs’ state-law punitive damages claims as to County Defendants.9  





9    For the same reason, the Court declines to address the County Defendants’ argument 
that the Individual Plaintiffs lack standing to seek prospective relief because that argument 

    Based on the foregoing analysis and all the files, records and proceedings herein, IT 

IS HEREBY  ORDERED that County  Defendants’  motion  to dismiss,  (Dkt.  72),  is 
GRANTED IN PART AND DENIED IN PART as follows:                            
    1.   Plaintiffs’ federal-law claims, as asserted against County Defendants, are 
DISMISSED.                                                                
    2.   Count IV of Plaintiffs’ complaint, as asserted against County Defendants, is 
DISMISSED.                                                                

    3.   County Defendants’ motion to dismiss is DENIED in all other respects. 

Dated:  September 27, 2021              s/ Wilhelmina M. Wright           
                                       Wilhelmina M. Wright              
                                       United States District Judge      

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Patrick Berry et al.,                  Case No. 20-cv-2189 (WMW/JFD)     

                   Plaintiffs,                                           
                                  ORDER GRANTING IN PART AND             
     v.                             DENYING IN PART COUNTY               
                                    DEFENDANTS’ MOTION TO                
Hennepin County et al.,                      DISMISS                     

                   Defendants.                                           


    Before the Court is Defendants Hennepin County and Hennepin County Sheriff 
David Hutchinson’s (County Defendants) motion to dismiss.  (Dkt. 72.)  For the reasons 
addressed below, the motion is granted in part and denied in part.        
                         BACKGROUND                                      
    This  case  arises  from  the  confluence  of  two  significant  societal  problems—
homelessness and the COVID-19 pandemic.  The individual plaintiffs in this action are 
nine individuals experiencing unsheltered homelessness in Hennepin County, Minnesota 
(Individual Plaintiffs).  Plaintiff ZACAH is a private nonprofit organization that assists 
residents of Minnesota on the verge of experiencing homelessness.         
    Plaintiffs allege that Defendants—Hennepin County, the City of Minneapolis, the 
Minneapolis Park and Recreation Board (MPRB), various county and city officials,1 and 
unnamed police officers—have conducted “sweeps” during which Defendants have seized 

1    These county and city officials are Minneapolis Mayor Jacob Frey, Minneapolis 
Chief of Police Medaria Arradondo, MPRB Superintendent Al Bangoura, MPRB Park 
and destroyed the property of persons experiencing unsheltered homelessness who live in 
encampments in Minneapolis public parks.  Plaintiffs allege that Defendants’ actions 

violate Plaintiffs’ rights as protected by the Fourth and Fourteenth Amendments to the 
United States Constitution, the Minnesota Constitution and Minnesota law.   
    On April 8, 2020, Minnesota Governor Tim Walz issued Emergency Executive 
Order 20-33 (EEO 20-33), which provides that “[e]ncampments should not be subject to 
sweeps or disbandment by state or local governments, as such sweeps or disbandment 
increase the potential risk and spread of COVID-19.”  On April 29, 2020, Governor Walz 

issued Emergency Executive Order 20-47 (EEO 20-47), which clarified EEO 20-33’s 
instructions with respect to encampments.  EEO 20-47 states that “both new and existing 
encampment[s]  should  not  be  subject  to  sweeps  or  disbandment  by  state  or  local 
governments.”  “State or local governments may restrict, limit, or close encampment 
spaces,” however, “[i]f a local government entity is providing sufficient alternate housing, 

shelter, or encampment space that complies with the Minnesota Department of Health’s 
guidance . . . and the Centers for Disease Control and Prevention’s guidance . . . or if an 
encampment has reached a size or status that is a documented threat to the health, safety, 
or security of residents.”  On May 13, 2020, Governor Walz issued Emergency Executive 
Order  20-55  (EEO  20-55),  reiterating  the  guidance  as  to  encampments  set  forth  in  

EEO 20-47.                                                                
    On June 17, 2020, the MPRB, which manages the Minneapolis park system, adopted 
Resolution  2020-253,  declaring  Minneapolis  parks  to  be  a  refuge  space  for  persons 
experiencing  unsheltered  homelessness.    Approximately  one  month  later,  the  MPRB 
adopted Resolution 2020-267, which limits the number of Minneapolis parks that can be 
refuge sites to 20 and limits, through a permitting process, the permissible number of tents 

located at each site to 25.  During August and September 2020, Minneapolis Park Police 
disbanded one of several Powderhorn Park encampments, along with encampments at 
Peavy Park, Kenwood Park and Elliot Park.                                 
    Plaintiffs’  amended  complaint  advances  five  claims.    Count  I  alleges  that 
Defendants unlawfully seized Plaintiffs’ property in violation of the Fourth Amendment to 
the United States Constitution and Article I, Section 10, of the Minnesota Constitution.  

Count II alleges that Defendants violated Plaintiffs’ right to privacy as protected by the 
Fourth Amendment to the United States Constitution and Article I, Section 10, of the 
Minnesota Constitution.  Count III alleges that Defendants violated Plaintiffs’ procedural-
due-process  rights  as  protected  by  the  Fourteenth  Amendment  to  the  United  States 
Constitution and Article I, Section 7, of the Minnesota Constitution.  Count IV alleges that 

Defendants  violated  Plaintiffs’  substantive-due-process  rights  as  protected  by  the 
Fourteenth Amendment of the United States Constitution and the Minnesota Constitution.  
And Count V alleges that Defendants are liable for the conversion of Plaintiffs’ property 
in violation of Minnesota law.  In an October 29, 2020 Order, this Court denied Plaintiffs’ 
motion for a temporary restraining order because Plaintiffs failed to establish irreparable 

harm.                                                                     
    County Defendants now move to dismiss all counts asserted against them, arguing 
that Plaintiffs lack standing, Sheriff Hutchinson is subject to qualified immunity in his 
individual capacity, and the complaint fails to state a claim on which relief can be granted.  
See Fed. R. Civ. P. 12(b)(1), 12(b)(6).  County Defendants also argue that Plaintiffs have 
inadequately pleaded punitive damages.                                    

                           ANALYSIS                                      
    I.   Standing                                                        
    County  Defendants  argue  that  dismissal  is  warranted  because  Plaintiffs  lack 
standing.  As standing implicates a federal court’s subject-matter jurisdiction, the Court 
addresses  standing  first.    Article  III  of  the  United  States  Constitution  limits  federal 
jurisdiction to actual cases and controversies.  U.S. Const. art. III, § 2, cl. 1; Lujan v. Defs. 

of Wildlife, 

 (1992).  As a jurisdictional prerequisite, standing must be 
established before the merits of a claim may be reached.  See, e.g., McCarney v. Ford 
Motor Co., 

 (8th Cir. 1981).                             
    A  defendant  may  challenge  a  plaintiff’s  complaint  for  lack  of  subject-matter 
jurisdiction either on its face or on the factual truthfulness of its averments.  See Fed. R. 

Civ. P. 12(b)(1); Titus v. Sullivan, 

 (8th Cir. 1993).  When deciding a Rule 
12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a court “must distinguish 
between a ‘facial attack’ and a ‘factual attack.’ ”  Osborn v. United States, 

, 
729 n.6 (8th Cir. 1990) (quoting Mechaca v. Chrysler Credit Corp., 

 (5th 
Cir.  1980)).    A  factual  attack  challenges  the  existence  of  subject-matter  jurisdiction 

irrespective of the allegations in the complaint.  Branson Label, Inc. v. City of Branson, 

, 914–15 (8th Cir. 2015).  When ruling on a factual attack, as here, the district 
court may consider matters outside the pleadings, and the nonmoving party proceeds 
without “the benefit of [Rule] 12(b)(6) safeguards.”  Osborn, 

 n.6.   
    To establish standing, a plaintiff must allege (1) an injury in fact, (2) a causal 
relationship between the opposing party’s conduct and the alleged injury, and (3) that the 

injury would likely be redressed by a favorable decision.  Lujan, 504 U.S. at 560–61.  
County Defendants challenge ZACAH’s standing, arguing that ZACAH has satisfied 
neither the injury-in-fact nor the redressability element.  County Defendants also challenge 
the traceability element as to Individual Plaintiffs’ Article III standing.  These arguments 
are addressed in turn.                                                    

    A.   Injury in Fact                                                  
    County Defendants argue that ZACAH lacks standing because ZACAH has not 
suffered an injury in fact.  Plaintiffs counter that the encampment sweeps perpetrated by 
County Defendants caused ZACAH a concrete and particularized injury.      
    When determining whether an organization has standing, a court conducts “the same 
inquiry as in the case of an individual: Has the plaintiff alleged such a personal stake in the 

outcome  of  the  controversy  as  to  warrant  his  [or  her]  invocation  of  federal-court 
jurisdiction?”  Havens Realty Corp. v. Coleman, 

, 378–79 (1982) (internal 
quotation marks omitted).  In Havens, an organization alleged that it suffered an injury by 
having to devote resources to counteract the defendant’s allegedly racially discriminatory 
housing practices.  

.  The Supreme Court of the United States recognized that this 

alleged  harm  was  “more  than  simply  a  setback  to  the  organization’s  abstract  social 
interests,” but instead was a “concrete and demonstrable injury to the organization’s 
activities,” concluding that there was “no question that the organization has suffered injury 
in fact.”  

                                                            
    Here, ZACAH alleges that it has spent approximately $113,000, and approximately 
50 to 60 hours per week, funding and otherwise securing hotel rooms for displaced people 

on an emergency basis.  ZACAH alleges that, but for Defendants’ actions, it could have 
used  those  resources  to  further  its  organizational  mission  of  preventing  people  from 
experiencing homelessness.  These allegations are sufficient to establish the injury-in-fact 
requirement of Article III standing.  See, e.g., Granville House, Inc. v. Dep’t of Health & 
Human Servs., 

 (8th Cir. 1983) (concluding that the nexus between 
the nonprofit’s purpose, the challenged statute’s purpose and the nonprofit’s economic 

injury established standing).                                             
    Because ZACAH has established an injury in fact, County Defendants’ motion to 
dismiss ZACAH’s claims on this basis is denied.                           
    B.   Traceability                                                    
    County Defendants next argue that Individual Plaintiffs lack standing because their 

alleged injuries are not fairly traceable to County Defendants’ actions.  Individual Plaintiffs 
disagree, asserting that County Defendants are among the parties responsible for Individual 
Plaintiffs’ injuries.                                                     
    To have standing, a plaintiff must allege an injury that is fairly traceable to the 
allegedly unlawful conduct and is not the consequence of independent actions of a third 

party that is not before the court.  Lujan, 

.  An injury that is fairly traceable 
also must be “certainly impending,” not speculative.  Clapper v. Amnesty Int’l USA, 

, 401–02 (2013); Whitmore v. Arkansas, 

 (1990).  Importantly, 
the standing inquiry is not an assessment of the merits of the claim.  Red River Freethinkers 
v. City of Fargo, 

 (8th Cir. 2012).                    

    Here, Plaintiffs allege that the MPRB asked Sheriff Hutchinson for “approval” when 
implementing Resolution 2020-267 to clear encampments and that Sheriff Hutchinson 
dispatched deputies to assist with the sweeps.  Although they dispute the specific role they 
played in the clearing process, County Defendants do not dispute that their deputies were 
present at and did not obstruct the clearance of the encampments on three occasions.  
Therefore, there is some connection between Individual Plaintiffs’ alleged injuries and 

County Defendants’ actions such that the traceability element of standing is satisfied.  
Accordingly, County Defendants’ motion to dismiss on this basis is denied.  
    C.   Redressability                                                  
    The parties next dispute whether ZACAH’s injuries are redressable.2  The third 
element of Article III standing requires a plaintiff to demonstrate that it is likely—not 

merely speculative—that the remedy the plaintiff seeks can redress the alleged injuries.  
Lujan, 

; Frost, 920 F.3d at 1161.                          
    Here, County Defendants maintain that ZACAH has not shown that it is likely—
rather than merely speculative—that a favorable decision against County Defendants will 
redress the injury ZACAH alleges because County Defendants would not thereby be 


2    County Defendants raise the issue of standing in their motion to dismiss, but they 
do not specifically challenge whether ZACAH’s alleged injuries are redressable until their 
reply brief.  Courts typically do not address arguments raised for the first time in a reply 
brief.  But, because subject-matter jurisdiction is a threshold requirement in every federal 
lawsuit, Green Acres Enters., Inc. v. United States, 

, 856 (8th Cir. 2005), the 
required to provide emergency housing to unsheltered persons.  But if County Defendants 
are enjoined from removing people from outdoor encampments, fewer people will require 

hotel rooms on an emergency basis.  ZACAH, in turn, likely would devote fewer resources 
to securing hotel rooms, leaving ZACAH more time and money to spend on its mission of 
preventing homelessness.  Therefore, ZACAH’s injury is redressable.       
    In summary, County Defendants’ motion to dismiss on the basis of Article III 
standing is denied.                                                       

    II.  Failure to State a Claim                                        
    A complaint must be dismissed if it fails to state a claim on which relief can be 
granted.  Fed. R. Civ. P. 12(b)(6).  To survive a Rule 12(b)(6) motion, the complaint must 
allege sufficient facts that, when accepted as true, state a facially plausible claim to relief.  
Ashcroft v. Iqbal, 

 (2009).  When determining whether the complaint 
states such a claim, a district court accepts as true all factual allegations in the complaint 

and draws all reasonable inferences in the plaintiff’s favor.  Blankenship v. USA Truck, 
Inc., 

 (8th Cir. 2010).  The factual allegations need not be detailed, but 
they must be sufficient to “raise a right to relief above the speculative level” and “state a 
claim to relief that is plausible on its face.”  Bell Atl. Corp. v. Twombly, 

 (2007).  A plaintiff, however, must offer more than “labels and conclusions” or a 

“formulaic recitation of the elements of a cause of action.”  

.  Legal conclusions 
that are couched as factual allegations may be disregarded by the district court.  See Iqbal, 
556 U.S. at 678–79.                                                       
    A.   Municipal Liability                                             
    The parties dispute whether Plaintiffs have sufficiently pleaded municipal liability 

pursuant to 

.                                             
    Section 1983 provides a civil cause of action against:               
         [e]very person who, under color of any statute, ordinance,      
         regulation, custom, or usage, of any State . . . subjects, or   
         causes to be subjected, any citizen of the United States . . . to 
         the deprivation of any rights, privileges, or immunities secured 
         by the Constitution and laws . . . .                            

.  A Section 1983 claim against a municipality cannot be based on 
vicarious liability.  See Bd. of Cnty. Comm’rs v. Brown, 

 (1997).  But a 
municipality may be subject to Section 1983 liability if the inadequate training of its 
employees, a municipal policy or an unofficial municipal custom causes a constitutional 
injury.  See City of Canton v. Harris, 

 (1989) (training); Monell v. Dep’t 
of Soc. Servs., 

 (1978) (policy or custom); see also Bd. of Cnty. Comm’rs, 
520 U.S. at 403–04.                                                       
    As  Plaintiffs  have  not  alleged  that  their  constitutional  injury  was  caused  by 
inadequate training, Plaintiffs’ Section 1983 claim against County Defendants necessarily 
is based on either an official policy or an unofficial custom.  See Corwin v. City of 
Independence, 

, 699–700 (8th Cir. 2016).  “Policy and custom are not the 
same thing.”  

                                                         
    “[A] policy is an official policy, a deliberate choice of a guiding principle or 
procedure made by the municipal official who has final authority regarding such matters.”  
Mettler v. Whitledge, 

, 1204 (8th Cir. 1999) (internal quotation marks 
omitted).  “[W]hether an official had final policymaking authority is a question of state 
law.”  Pembaur v. City of Cincinnati, 

 (1986) (noting that “[a]uthority to 

make municipal policy may be granted directly by a legislative enactment or may be 
delegated  by  an  official  who  possesses  such  authority”).    Courts  consult  applicable 
municipal charters, codes or ordinances to determine whether an official has policymaking 
authority.  See Davison v. City of Minneapolis, 

 (8th Cir. 2007).  Plaintiffs 
have not identified an official county policy or alleged facts that would support the 
existence of an official policy.  Nor have Plaintiffs cited any law bestowing policymaking 

authority on Sheriff Hutchinson or alleged that Sheriff Hutchinson is a policy maker.  The 
Court must, therefore, analyze whether Plaintiffs have adequately alleged an unofficial 
county custom.                                                            
    To state a claim for Section 1983 liability based on a county custom, a plaintiff must 
plead facts that establish (1) “the existence of a continuing, widespread, persistent pattern 

of unconstitutional misconduct” committed by the county’s employees; (2) “deliberate 
indifference to or tacit authorization” of the misconduct by policymaking officials after 
those officials have received notice of the misconduct; and (3) that the plaintiff was injured 
by acts pursuant to the custom, such that “the custom was a moving force behind the 
constitutional violation.”  Corwin, 

.  Even if a plaintiff is not privy to the 

facts necessary to describe with specificity the alleged custom, the complaint must allege 
facts that would support the existence of a custom.  Crumpley-Patterson v. Trinity Lutheran 
Hosp., 

, 591 (8th Cir. 2004).                                 
    Because it is dispositive of the issue presented here, the Court begins with the 
second element, which requires a plaintiff to “allege facts showing that policymaking 

officials had notice of or authorized” the misconduct.  Kelly v. City of Omaha, 

 (8th Cir. 2016) (affirming dismissal of Section 1983 claim against municipality 
that failed to allege such facts).  Merely referencing previous complaints made against a 
local government employee, without more, is insufficient to state a claim for Section 1983 
liability based on a custom.  See id.; cf. Mettler, 165 F.3d at 1205 (explaining that plaintiff 
would need to show that the local government “had failed to investigate previous incidents 

before a court could conclude” that law enforcement officers “believed a municipal custom 
allowed  them  to  violate  [plaintiff’s]  rights  with  impunity”);  Hassuneh  v.  City  of 
Minneapolis, 

 (D. Minn. 2008) (granting municipality’s motion 
for summary judgment when plaintiffs did not “provide any evidence that the City of 
Minneapolis was on notice of the alleged constitutional violation and that the City was 

deliberately indifferent or authorized the alleged constitutional violation”).   
    Plaintiffs do not allege any facts that, if proven, would establish that a policymaking 
official received notice of any alleged constitutional violations committed by County 
Defendants’ employees.  Nor do Plaintiffs allege that a policymaking official authorized 
or was deliberately indifferent to the alleged constitutional violations committed by County 

Defendants’ employees.  And there are no alleged facts from which such an inference could 
reasonably  be  drawn.    Because  Plaintiffs  have  not  alleged  any  facts  to  support  this 
necessary element of a claim for Section 1983 liability based on a county custom, Plaintiffs 
have failed to state a Section 1983 claim against County Defendants.3  Accordingly, the 
Court must dismiss the Plaintiffs’ federal constitutional claims against County Defendants 

premised on Section 1983 liability, and therefore grant County Defendants’ motion to 
dismiss all such claims against them.                                     
    B.   Qualified Immunity                                              
    County Defendants also argue that Sheriff Hutchinson, in his individual capacity, is 
subject to qualified immunity.  Plaintiffs disagree.                      
    Qualified immunity “protects government officials from liability for civil damages 

insofar as their conduct does not violate clearly established statutory or constitutional rights 
of which a reasonable person would have known.”  Pearson v. Callahan, 

 (2009) (internal quotation marks omitted).  On a motion to dismiss, qualified immunity 
warrants dismissal “only when the immunity is established on the face of the complaint.”  
Hafley v. Lohman, 

 (8th Cir. 1996) (internal quotation marks omitted).  To 

determine  whether  an  official  is  entitled  to  qualified  immunity,  courts  consider 
“(1) whether  the  facts  alleged  or  shown,  construed  most  favorably  to  the  plaintiffs, 
establish a violation of a constitutional right, and (2) whether that constitutional right was 
clearly established at the time of the alleged misconduct, such that a reasonable official 
would have known that the acts were unlawful.”  Small v. McCrystal, 

 

(8th Cir. 2013).  A court may consider these qualified-immunity factors in any order.  
Pearson, 

.                                                 

3    In light of the foregoing conclusion, the Court need not address whether Plaintiffs 
have adequately alleged a continuing, widespread, persistent pattern of unconstitutional 
    Qualified  immunity  “protects  all  but  the  plainly  incompetent  or  those  who 
knowingly violate the law.”  Messerschmidt v. Millender, 

 (2012) 

(internal quotation marks omitted).  When performing a qualified-immunity analysis, a 
district court assesses the facts as they appeared to the relevant state actors.  Greiner v. City 
of Champlin, 

 (8th Cir. 1994).  A “clearly established” right does not 
require a case directly on point.  Hope v. Pelzer, 

 (2002).  Rather, the key 
inquiry is whether the state actor had fair warning that the conduct violated a right.  

  
The Supreme Court of the United States has cautioned against defining “clearly established 

right” with an excessive degree of generality.  Plumhoff v. Rickard, 

, 778–79 
(2014).  “[C]learly established law must be particularized to the facts of the case.”  White 
v. Pauly, 

 (2017) (internal quotation marks omitted).   
    To prove that the relevant law was clearly established at the time that Sheriff 
Hutchinson  allegedly  violated  Plaintiffs’  property,  privacy  and  due-process  rights, 

Plaintiffs “must point to existing circuit precedent that involves sufficiently similar facts 
to squarely govern the individual defendants’ conduct in the specific circumstances at issue” 
or, if no such binding precedent exists,  “present a robust consensus of persuasive authority 
constituting settled law.”  Bus. Leaders in Christ v. Univ. of Iowa, 

 (8th 
Cir. 2021) (internal quotation marks and brackets omitted); accord Lane v. Nading, 

 (8th Cir. 2019) (addressing qualified immunity in the context of a motion 
to dismiss).  Here, although Plaintiffs identify case law from the Supreme Court and the 
United States Court of Appeals for the Eighth Circuit, the cases cited do not involve 
sufficiently similar facts to squarely govern Sheriff Hutchinson’s conduct in the specific 
circumstances at issue.  See, e.g., Rakas v. Illinois, 

, 142–44 (1978) (clarifying, 
in a case involving the search of an automobile,  that the statement in Jones v. United States, 

 (1960), “that a person need only be ‘legitimately on the premises’ in order to 
challenge the validity of the search of a dwelling place cannot be taken in its full sweep 
beyond the facts of that case”); Silverman v. United States, 

, 511–12 (1961) 
(holding unconstitutional a warrantless wiretap of an alleged gambling establishment); 
Robbins v. City of Des Moines, 

 (8th Cir. 2021) (discussing brief 
detention of personal effects in the context of a seizure of the detained plaintiff’s phone 

and camera, which he had been using to record the police); Walters v. Wolf, 

, 
313–14 (8th Cir. 2011) (addressing the seizure of a fugitive’s gun following a traffic stop 
of his car and discovery of an outstanding warrant for his arrest).       
    Therefore, Sheriff Hutchinson in his individual capacity is subject to qualified 
immunity  and  County  Defendants’  motion  to  dismiss  is  granted  in  this  respect.  

Accordingly, to the extent that Plaintiffs seek damages against Sheriff Hutchinson in his 
individual capacity, Sheriff Hutchinson is immune from such claims.       
    C.   Unlawful Seizure of Personal Property (Counts I & II)           
    County Defendants argue that Plaintiffs fail to state a claim for unlawful seizure of 
Individual  Plaintiffs’  personal  property  in  violation  of  Article  I,  Section  10,  of  the 

Minnesota Constitution.4                                                  


4    Although Plaintiffs split their claim for unlawful seizure of their property into two 
separate counts in their complaint, the Court can discern no meaningful distinction between 
the two counts.  The Court therefore analyzes these duplicative counts together.  
    Article I, Section 10, of the Minnesota Constitution provides that “[t]he right of the 
people to be secure in their persons, houses, papers, and effects against unreasonable 

searches and seizures shall not be violated; and no warrant shall issue but upon probable 
cause, supported by oath or affirmation, and particularly describing the place to be searched 
and the person or things to be seized.”  Minn. Const. Art. I, § 10.  “Ordinarily, [Minnesota 
courts] analyze federal and state protections guaranteed by the Fourth Amendment to the 
United States Constitution and Article I, Section 10, of the Minnesota Constitution as co-
extensive.”  In re Welfare of M.L.M., 

 (Minn. Ct. App. 2010).5  When 

analyzing an alleged unlawful seizure, courts must determine whether the plaintiff had a 
reasonable expectation of privacy with respect to the place searched or property seized and 
whether the search and seizure of the property was reasonable under the circumstances.  
See O’Connor v. Ortega, 

 (1987).                         
    For a plaintiff to prove that a legitimate expectation of privacy was violated by the 

challenged search and seizure, the plaintiff must establish that (1) the plaintiff “asserted a 
subjective expectation of privacy” in the place searched or the object seized, and (2) the 
plaintiff’s “subjective expectation is objectively reasonable.”  United States v. Kiser, 

 (8th Cir. 1991).  The parties do not contest that Individual Plaintiffs had a 
subjective expectation of privacy with respect to their personal belongings.  The parties 



5    Occasionally  Minnesota  courts  will  “reach[  ]  conclusions  regarding  Article  I, 
Section 10, of the Minnesota Constitution that depart[ ] from decisions of the Supreme 
Court interpreting the identical language of the Fourth Amendment.”  State v. Carter, 

 (Minn. 1999).  The circumstances that warrant such a departure are not 
dispute whether Individual Plaintiffs’ subjective expectation of privacy was objectively 
reasonable.                                                               

    “Determining whether an expectation of privacy is ‘legitimate’ or ‘reasonable’ 
necessarily entails a balancing of interests.”  Hudson v. Palmer, 

 (1984).  
Courts must balance the government’s interest in invading an individual’s privacy against 
the individual’s privacy interest.  See 

  Individual Plaintiffs allege that they have a 
protected  property  interest  in  their  personal  belongings.    County  Defendants  have  a 
countervailing  interest  in  disbanding  encampments  to  promote  the  general  welfare, 

including by preventing the further spread of COVID-19 in the midst of a global pandemic 
and deterring unsafe and unhealthy living conditions.                     
    An  individual’s  right  to  privacy  in  the  home  almost  always  outweighs  the 
government interest in invading that private domain.  See Kyllo v. United States, 

 (2001).  A house—whether rented or owned—is therefore indisputably a “home” 

such that its occupant has a reasonable expectation of privacy therein.  See Chapman v. 
United States, 

 (1961).  Hotel rooms also have been found to be akin to 
a home in which a person has a reasonable expectation of privacy.  See Stoner v. California, 

 (1964); Lustig v. United States, 

, 79–80 (1949).  Plaintiffs 
have not identified any legal authority demonstrating that a tent pitched unlawfully on 

public land is a home such that its owner has an objectively reasonable expectation of 
privacy.  Cf. United States v. Voice, 

 (8th Cir. 2010) (declining to decide 
whether a person has a reasonable expectation of privacy in unattended closed bags in a 
public place “because any error in admission of the evidence in question was harmless”).      
    Unlike houses, apartments, and hotel rooms, which are considered the quintessential 
example of “homes” wherein a person has a subjective expectation of privacy, Individual 

Plaintiffs’ tents are pitched on public—rather than private—property and have been erected 
unlawfully.  Taken together, Individual Plaintiffs’ unlawful erection of tents on public land 
paired with County Defendants’ strong interest in promoting the general welfare establish 
that Individual Plaintiffs do not have an objectively reasonable expectation of privacy in 
their property such that they could not be subject to an encampment sweep that includes 
the seizure of their personal property. 6                                 

     A temporary deprivation of personal property is different from a permanent one, 
however.  United States v. Jacobsen, 

 (1984).  A “seizure lawful at its 
inception can nevertheless violate the Fourth Amendment because its manner of execution 
unreasonably infringes possessory interests protected by the [constitutional] prohibition on 
unreasonable seizures.”  

 (internal quotation marks omitted).  When “a temporary 

deprivation of possessory interests [becomes] a permanent one,” courts must “balance the 
nature and quality of the intrusion on the individual’s [constitutional] interests against the 
importance of the governmental interests alleged to justify the intrusion.”  

 
(internal quotation marks omitted).  A permanent deprivation is permissible when it is 
necessary to achieve the government’s permissible ends.  

 (finding permissible the 

destruction  of  powder  in  order  to  effect a  field  test for  contraband).    Here, County 

6    The United States Court of Appeals for the Ninth Circuit’s decision holding that a 
camping tent pitched on a public campground where one is legally permitted to camp is a 
home, United States v. Gooch, 

, 677–78 (9th Cir. 1993), is not inconsistent with 
this Court’s analysis.  Unlike the circumstances here, Gooch involved a public space 
Defendants’  interest  is  in  promoting  the  general  welfare—keeping  citizens  safe  and 
preventing the spread of COVID-19.  Plaintiffs’ countervailing interest is in retaining or 

reclaiming  possession  of  their  personal  property,  including  important  documents  and 
irreplaceable personal effects.  Taking Plaintiffs’ allegations as true, as required on a 
motion to dismiss, County Defendants could have achieved its legitimate public welfare 
goals  if  they  had  cleared  the  homeless  encampments  without  permanently  depriving 
Individual Plaintiffs of their personal property by destroying that property. 
    Therefore, Individual Plaintiffs have plausibly alleged a violation of their right to 

be secure against the unreasonable seizure of their property, pursuant to Article I, Section 
10, of the Minnesota Constitution.  Accordingly, County Defendants’ motion to dismiss 
Plaintiffs’ state-law unlawful-seizure claims (Counts I and II), as alleged against County 
Defendants, is denied.                                                    
    D.   Procedural Due Process (Count III)                              

    County Defendants argue that Plaintiffs fail to state a procedural-due-process claim 
because the complaint fails to allege that County Defendants seized Individual Plaintiffs’ 
personal property without adequate process.  Plaintiffs counter that County Defendants 
provided Individual Plaintiffs no process at all.                         
     “The due process protection provided under the Minnesota Constitution is identical 

to the due proces[s] guaranteed under the Constitution of the United States.” State v. 
Krause, 

 (Minn. 2012) (alteration in the original) (internal quotation 
marks omitted).   Procedural-due-process claims are reviewed in two steps: a court first 
determines whether the plaintiff was deprived of a protected liberty or property interest 
and, if so, the court determines whether government officials followed constitutionally 
sufficient  procedures.    Jenner  v. Nikolas, 

  (8th  Cir.  2016)  (citing 

Swarthout v. Cooke, 

 (2011)).  “Protected liberty interests may arise from 
the Due Process Clause itself or from an expectation or interest created by state law or 
policies.”  

  The focus of a procedural-due-process claim is not on the merits of a 
deprivation, “but on whether the State circumscribed the deprivation with constitutionally 
adequate procedures.”  Parrish v. Mallinger, 

 (8th Cir. 1998).  Here, it 
is undisputed that Individual Plaintiffs have a property interest in their personal belongings.  

Accordingly, the dispute is whether County Defendants provided Individual Plaintiffs with 
a constitutionally adequate process before depriving Individual Plaintiffs of their property.  
    The “general rule [is] that individuals must receive notice and an opportunity to be 
heard before the Government deprives them of property.”  United States v. James Daniel 
Good Real Prop., 

 (1993).  Although it does not appear that the Eighth 

Circuit has decided what process is due in the unique circumstances presented here, other 
courts analyzing claims with similar facts have concluded that the relevant process may 
include notice, the provision of storage for certain items and the ability to reclaim property 
within a defined period of time.  “In the context of collection or destruction of the 
possessions of people experiencing homelessness that are left unattended in a public space, 

courts have found that minimally, the municipality must provide advance notice and a 
meaningful way to collect the property.”  Phillips v. City of Cincinnati, 

, 646 (S.D. Ohio 2020) (collecting cases); see also Denver Homeless Out Loud v. 
Denver, 

, 1292 (D. Colo. 2021) (concluding that the plaintiffs’ 
Fourteenth Amendment procedural-due-process claim was likely to succeed on the merits 
in  a  case  brought  by  homeless  people  who  did  not  receive  notice  of  an  impending 

encampment sweep until the morning it occurred, giving the plaintiffs “little time to collect 
and remove their belongings prior to the commencement of the sweeps”).    
    Here, the complaint alleges that County Defendants violated Individual Plaintiffs’ 
procedural-due-process rights by seizing and destroying Individual Plaintiffs’ property 
without providing Individual Plaintiffs (1) adequate or effective notice, (2) an opportunity 
to be heard, or (3) a pre- or post-deprivation mechanism to challenge or reclaim their 

property.  County Defendants do not present any argument as to their failure to provide 
notice or an opportunity to be heard.7  County Defendants argue only that Individual 
Plaintiffs have a meaningful post-deprivation remedy in the form of 

.  
This statute provides that, subject to certain limitations, “every municipality is subject to 
liability for its torts and those of its officers, employees and agents acting within the scope 

of  their  employment  or  duties  whether  arising  out  of  a  governmental  or  proprietary 
function.”  

.  Plaintiffs counter that 

 is not an 
adequate post-deprivation remedy and that meaningful pre-deprivation procedures for 
encampment sweeps are available but were not used.                        
     “[A]n unauthorized intentional deprivation of property by a state employee does 

not constitute a violation of” procedural due process “if a meaningful postdeprivation 
remedy for the loss is available.”  Hudson v. Palmer, 

 (1984).  When 

7    County Defendants appear to suggest that Plaintiffs’ belongings were abandoned.  
This is contrary to the allegations in the complaint, which are accepted as true for the 
determining  whether  a  procedural-due-process  violation  has  occurred  despite  the 
availability of a postdeprivation remedy, “[t]he controlling inquiry is solely whether the 

state is in a position to provide for predeprivation process.”  

.  Here, County 
Defendants do not argue that they were unable to provide predeprivation process or that 
predeprivation process was impracticable.  See 

.  Therefore, whether 

 constitutes an adequate postdeprivation process is not dispositive as to whether 
Plaintiffs have stated a procedural-due-process claim.                    
    For these reasons, County Defendants’ motion to dismiss Plaintiffs’ procedural-due-

process claim (Count III) as alleged against the County Defendants is denied. 
    E.   Substantive Due Process (Count IV)                              
    County Defendants argue that Plaintiffs fail to state a substantive-due-process claim.  
The substantive-due-process protections of the Minnesota Constitution are co-extensive 
with those of the United States Constitution.  See State v. Rey, 

, 493–94 

(Minn. 2018).  To state a substantive-due-process claim, a plaintiff must allege both that 
the government’s actions were “conscience-shocking[ ] and that the [conduct] violated one 
or more fundamental rights that are deeply rooted in this Nation’s history and tradition, and 
implicit in the concept of ordered liberty, such that neither liberty nor justice would exist 
if they were sacrificed.”  Karsjens v. Piper, 

 (8th Cir. 2017) (quoting 

Moran v. Clarke, 

 (8th Cir. 2002) (en banc)); see also Washington v. 
Glucksberg, 

, 720–21 (1997).  Here, Plaintiffs assert fundamental rights to 
property, privacy and to be safe from state-created dangers.              
         1.  Property                                                    
    County  Defendants  argue  that  Plaintiffs’  property-related  claims  are  properly 

analyzed as violations of their right to be free from unreasonable seizure of property and 
their right to procedural due process, not as violations of Plaintiffs’ substantive-due-
process rights.   “[I]f a constitutional claim is covered by a specific constitutional provision, 
. . . 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, 

, 
272 n.7 (1997); Graham v. Connor, 

 (1989) (holding, in a use of force 

case,  that  “[b]ecause  the  Fourth  Amendment  provides  an  explicit  textual  source  of 
constitutional protection against this sort of physically intrusive governmental conduct, 
that Amendment, not the more generalized notion of ‘substantive due process,’ must be the 
guide for analyzing these claims”).  Because Plaintiffs’ alleged property-related claims are 
more properly analyzed under an unlawful seizure analysis pursuant to Minnesota’s state 

constitutional  analogue  to  the  Fourth  Amendment,  the  Court  declines  to  apply  a 
substantive-due-process analysis.                                         
         2.  Privacy                                                     
    County Defendants argue that, to the extent that Plaintiffs’ substantive-due-process 
claim is based on privacy, Plaintiffs’ claim fails because there is no fundamental right to 

sleep or erect structures in a public place.  Plaintiffs counter that they have a right to privacy 
in their home, including their encampment tents.                          
    Courts must exercise extreme caution when elevating particular interests to the 
status of fundamental constitutional rights because recognizing these rights, “to a great 
extent, place[s] the matter outside the arena of public debate and legislative action” and 
risks transforming the Due Process Clause into a court’s policy preferences.  Glucksberg, 

.  When determining whether a right is fundamental, courts require “a 
careful description of the asserted fundamental liberty interest.”  

 (internal 
quotation marks omitted).  Vague generalities are insufficient.  Chavez v. Martinez, 

 (2003).                                                     
    In their complaint, Plaintiffs allege that they have a constitutionally protected right 
to privacy in their personal affairs and in their property.  Plaintiffs allege that County 

Defendants’  forceful  ejection  of  Individual  Plaintiffs  and  destruction  of  Individual 
Plaintiffs’ property constitutes an unlawful disturbance of Plaintiffs’ private affairs and an 
invasion of privacy in their belongings.  Plaintiffs appear to assert a general right to privacy 
in their encampments under any circumstances.  But these general, vague assertions are not 
“a careful description of the asserted fundamental liberty interest.”  Glucksberg, 

 (internal quotation marks omitted).  And although the right to privacy under the 
Minnesota  constitution  is broader  than  the  federal  constitutional  protections,  State  v. 
Davidson,  

  (Minn.  1992),  Plaintiffs  cite  no  legal  authority  that 
recognizes a privacy right to “safely sleep on public land when no alternative exists.”  Nor 
has the Court’s research identified any.                                  

    Therefore,  County  Defendants’  motion  to  dismiss  Plaintiffs’  substantive-due-
process claim based on privacy interests, as alleged in Count IV of the complaint, is 
granted.                                                                  
         3.  State-Created Danger                                        
    Plaintiffs identify no state-created-danger doctrine under Minnesota law.  Even if 

the federal state-created-danger doctrine applied, Plaintiffs do not allege a state-created 
danger because inclement weather and the COVID-19 pandemic, although dangerous, were 
not created by the state.  See Hart v. City of Little Rock, 

 (8th Cir. 2005) 
(holding that substantive due process requires the government to protect individuals “if it 
created  the  danger  to  which  the  individuals  are  subjected”).    Therefore,  County 
Defendants’ motion to dismiss Plaintiffs’ substantive-due-process claim based on a state-

created danger, as alleged in Count IV of the complaint, is granted.      
    In  summary,  Plaintiffs’  substantive-due-process  claim  (Count  IV),  as  alleged 
against County Defendants, is dismissed in all respects.                  
    F.   Conversion (Count V)                                            
    County Defendants argue that Plaintiffs fail to state a claim for conversion because 

the  complaint  includes  no  allegations  that  Sheriff  Hutchinson  or  Hennepin  County 
personnel seized or destroyed any of Individual Plaintiffs’ personal property.  Plaintiffs 
counter that County Defendants’ actions were a substantial factor in depriving Individual 
Plaintiffs of the use and possession of their property.                   
    Minnesota law defines conversion as “an act of willful interference with personal 

property, done without lawful justification by which any person entitled thereto is deprived 
of use and possession.”  DLH, Inc. v. Russ, 

 (Minn. 1997) (internal 
quotation marks omitted).  “The elements of common law conversion are (1) the plaintiff 
has a property interest and (2) the defendant deprives the plaintiff of that interest.”  Lassen 
v. First Bank Eden Prairie, 

 (Minn. Ct. App. 1994); accord In re 
WEB2B Payment Sols., Inc., 

 (8th Cir. 2016).  Here, Individual Plaintiffs’ 

property interests are undisputed.  Accordingly, only the second element—causation—is 
at issue.  “Causation exists if a defendant’s tortious conduct was a substantial factor in 
bringing about the injury.”  Gits v. Norwest Bank Minneapolis, 

 
(Minn. Ct. App. 1986) (citing Flom v. Flom, 

 (Minn. 1980)).   
    Plaintiffs allege that County Defendants assisted in clearing encampments and that 
the  MPRB  stated  that  it  could  not  have  cleared  the  encampments  without  County 

Defendants’  assistance.    Such  facts  are  sufficient  to  plausibly  allege  that  County 
Defendants’ actions were a substantial factor in depriving Individual Plaintiffs of their 
property interests.  Therefore, County Defendants’ motion to dismiss Count V is denied.  
    G.   Punitive Damages                                                
    County Defendants argue that the complaint fails to state a claim for punitive 

damages as to their state-law claims for three reasons: (1) state law bars an award of 
punitive damages against Hennepin County, (2) Plaintiffs fail to plausibly allege that 
Sheriff Hutchinson’s conduct was motivated by evil motive or intent, and (3) Plaintiffs fail 
to satisfy the requirements of 

, 549.20.8           
    “[T]he selection of an improper remedy in the Rule 8(a)(3) demand for relief will 

not be fatal to a party’s pleading if the statement of the claim indicates the pleader may be 
entitled to relief of some other type.”  Dingxi Longhai Dairy, Ltd. v. Becwood Tech. Grp. 

8    Because the Court has dismissed Plaintiffs’ federal-law claims against County 
Defendants for the reasons addressed in Part II.A. of this Order, County Defendants’ 
L.L.C., 

 (8th Cir. 2011) (quoting 5 Wright & Miller, Federal Practice 
and Procedure: Civil 3d § 1255 at 508–09 (3d ed. 2004)); see also Bontkowski v. Smith, 

 (7th Cir. 2002) (stating that “the demand [for relief] is not itself a part 
of the plaintiff’s claim and so failure to specify relief to which the plaintiff was entitled 
would not warrant dismissal under Rule 12(b)(6)” (internal citations omitted)); Laird v. 
Integrated Resources, Inc., 

, 841–42 (5th Cir. 1990) (asserting that the court 
has “consistently interpreted [Rule 8(a)(3)] to allow a plaintiff any relief that the pleaded 
claim supports; requesting an improper remedy is not fatal”); Schoonover v. Schoonover, 

 (10th Cir. 1949) (explaining that “the prayer forms no part of the cause 
of action, and . . . a pleader will be entitled to the relief made out by the case and stated in 
the pleadings, irrespective of what is asked for in the prayer”).  “The amount of damages 
to be recovered is based upon the proof, not the pleadings.”  Dingxi, 635 F.3d at 1108–09. 
    For the reasons addressed above, Plaintiffs have plausibly alleged violations of their 

state-law rights in Counts I, II, III, and V.  Because the propriety of the relief Plaintiffs 
seek is irrelevant to evaluating a motion to dismiss, the Court does not address the propriety 
of the relief Plaintiffs seek.  For these reasons, the Court denies County Defendants’ motion 
to dismiss Plaintiffs’ state-law punitive damages claims as to County Defendants.9  





9    For the same reason, the Court declines to address the County Defendants’ argument 
that the Individual Plaintiffs lack standing to seek prospective relief because that argument 

    Based on the foregoing analysis and all the files, records and proceedings herein, IT 

IS HEREBY  ORDERED that County  Defendants’  motion  to dismiss,  (Dkt.  72),  is 
GRANTED IN PART AND DENIED IN PART as follows:                            
    1.   Plaintiffs’ federal-law claims, as asserted against County Defendants, are 
DISMISSED.                                                                
    2.   Count IV of Plaintiffs’ complaint, as asserted against County Defendants, is 
DISMISSED.                                                                

    3.   County Defendants’ motion to dismiss is DENIED in all other respects. 

Dated:  September 27, 2021              s/ Wilhelmina M. Wright           
                                       Wilhelmina M. Wright              
                                       United States District Judge