Tuesday, April 1, 2014

US District Court Judge John Tunheim Substantially Adopts Judge Noel's Report & Recommendation in Minnesota Drug Recognition Evaluator "DRE" Case

Yesterday, March 31, 2014, US District Court Judge John Tunheim entered an order that substantially adopted Magistrate Franklin Noel's Report and Recommendation previously entered in the Drug Recognition Evaluator case brought against police officials who picked up Occupy Minnesota protestors and administered drugs to them purportedly as part of a police training program.  A copy of Judge Tunheim's 32- page order and opinion is located here.  The next step for the Plaintiffs in this case is to amend their complaint.  A proposed amended complaint has been drafted and has been circulated to defense counsel.  If  defense counsel do not stipulate to amend the complaint the plaintiffs will bring a motion to amend the complaint.

This decision by Judge Tunheim is very good for the Plaintiffs.  At some point in the near future the Plaintiffs will be able to engage in discovery so they can learn more about Minnesota law enforcement's Drug Recognition Evaluator program training, including the source of the drugs that were administered to the Plaintiffs.

Nathan Hansen
651-704-9600

Tuesday, February 18, 2014

Police Defendants Object to Magistrate Noel's Report and Recommendation in the Minnesota Drug Recognition Evaluator Lawsuit, Claim They Are Immune.

I have used this blog to provide extensive coverage of the lawsuit my clients have brought against Minnesota Law Enforcement Officers who picked them up and administered street drugs to them.  They were subsequently subjected to the police officers' pseudo-scientific tests to determine whether or not they were under the influence of drugs.  Today, the remaining Defendants objected to Magistrate Noel's Report and Recommendation that the lawsuit move forward.  Here is a recap of this blog's coverage of this suit:

Press Release

Motions to Dismiss Brought by the Defendants

Motions to Dismiss and Plaintiffs' Response to these motions

Magistrate Noel Issues Report and Recommendation that Lawsuit Move Forward

The remaining Defendants, have objected to Magistrate Noel's Report and Recommendation that the lawsuit move forward.  The Magistrate Judge's Report and Recommendation can be adopted by the Article III Judge assigned to the case, the Honorable John Tunheim.  If the report is adopted by Judge Tunheim, the Defendants will be able to engage in discovery, that is they will have the ability to ask questions, take depositions and obtain documents related to the Minnesota Drug Evaluator program's experiments that were performed upon them.

In their objection, these licensed peace officers argue that even if everything the Plaintiffs say is true, they are immune and should never have to answer for this conduct.  Magistrate Judge Noel disagreed with this position, in his strongly worded opinion, he stated:  "...the facts of this case smack of arbitrary government action coupled with de minimis legitimate state interest."  (page 15).  The peace officers also argued that the "failure to train" claim brought by the Plaintiffs was without merit and should be dismissed.  Magistrate Noel also disagreed with this, stating:  "In the Court’s view, any law enforcement officer who provides an illicit drug to citizens recruited from the streets of an urban center for the purpose of observing them while they are impaired has not received proper training." (pages 18-19).

The Defendants have requested a hearing before Judge Tunheim.  There is no way of knowing whether this request will be granted or if it is granted when this hearing would occur.  In any event, I will certainly keep this blog updated with any new information.

Nathan Hansen
651-704-9600


Tuesday, February 4, 2014

Magistrate Judge Noel Recommends Drug Recognition Evaluator Lawsuit Move Forward

This afternoon a Report and Recommendation was entered in the lawsuit brought by protesters and other people who were picked up by law enforcement officers and given drugs.  After they were given drugs, tests were run on them by the law enforcement officers to allegedly train officers to evaluate the effects of certain drugs.

Last summer, these law enforcement officers brought motions to dismiss the Plaintiff's Complaint.  The Report and Recommendation entered by Magistrate Judge Franklin Noel today recommends that this lawsuit move forward with regard to certain Plaintiffs and Defendants, and permits the Plaintiff's to move to Amend their Complaint.  We will be moving to amend our Complaint.  The Defendants have fourteen days to object to the Magistrate Judge's Report and Recommendation.  The Article III Judge assigned to the case, the Honorable John Tunheim, can adopt or decline to adopt the Magistrate's Recommendation.  If this Report and Recommendation is adopted, the Plaintiffs will be able to move forward with discovery, to hopefully answer questions like:  "Where the officers obtain the drugs they administered to these people?"

This is just a preliminary update.  I will provide more updates in the future.

Nathan Hansen
651-704-9600

Thursday, January 9, 2014

Update on Minnesota Debtor's Prison Case

On December 4, 2013, U.S. District Judge Richard Kyle entered an order dismissing the lawsuit I brought against Dakota County for holding my client Julius Chad Zimmermann in jail for five days after he had filed for bankruptcy.  The order can be found here.  In my client's case, he had his Notice of Meeting of Creditors in his hands when the police arrested him and when he was brought to jail.  All of his pleas to be released in accordance with the Federal Automatic Stay he had evidence of in his hands were completely ignored and not even considered.

Interestingly, Judge Kyle dismissed the automatic stay violation claim for lack of jurisdiction on his own motion (the law term for this is "sua sponte").  There is an academic argument about this that is beyond the scope of this update.  However, as a lawyer, I try to think about things as simply as possible.  I respectfully disagree with the Court that an Article III Judge does not have jurisdiction over a a bankruptcy stay violation claim.  My reasoning is this:  Bankruptcy Courts would not exist but for the existence of the Article III Courts.  There is a lot more that could be said about this, but I do not intend for this post to turn in to a complicated jurisdictional discussion.  What Judge Kyle's Order means is that the bankruptcy claim, that is, the automatic stay violation claim, needs to be brought in the Bankruptcy Court as an adversary proceeding, which is a fancy word for a lawsuit in Bankruptcy Court.

Therefore, I intend to bring the automatic stay violation claim in Bankruptcy Court.  This time, I intend to name the arresting officers of the Rosemount Police Department and the Dakota County Sheriff.  I hope to get this bankruptcy court lawsuit out some time next week or the following week.

If you are interested in delving in to the academic/legal angles of this case, Dakota County's Brief is here and my Brief is here.

Nathan Hansen
651-704-9600

Drug Recognition Evaluator Lawsuit Case Update

I get inquires almost daily from all manner of people regarding the status of the Drug Recognition Evaluator case.  The government attorneys brought motions to dismiss that were heard by the Honorable Franklin Noel, United States Magistrate Judge, on July 22, 2013.  The Magistrate Judge has not yet issued a report and recommendation for the Article III Judge John Tunheim to consider.

My update is that there is not really any update.  We are waiting for a decision on these dispositive motions.  In the meantime, the Plaintiffs are not permitted to engage in discovery because motions to dismiss were brought in lieu of answers to the lawsuit.

As soon as there are any developments, I will post them on this blog.

Also, a news organization or interested party should purchase a copy of the transcript of the July 22, 2013 hearing.  The government attorneys said some interesting things at this hearing.

Nathan Hansen
651-704-9600

Wednesday, May 1, 2013

"Drug Recognition Expert" Lawsuit Update - Motions to Dismiss, Plaintiff's Response, and Defendants' Replies to Plaintiff's Response.

Dakota County attorney James Backstrom and Anoka County Attorney Tony Palumbo brought Motions to Dismiss the "Drug Recognition Expert" Lawsuit brought persons who were picked up by law enforcement and given street drugs.

The Anoka County Attorney's Memorandum of Law has very similar arguments to the other Memorandums that have been filed by other Defendants in this case.  The argument is essentially that the government is immune and it can do whatever it pleases.

Dakota County Attorney James Backstrom's Memorandum of Law takes the immunity approach, but also takes another approach by going in to great detail about the DRE program and the BCA Investigation.

On April 17, 2013, the Plaintiff's filed a Memorandum of Law responding to all of the motions to dismiss.  I think that this is a very well-written piece of legal writing, and if you are interested in reading such things you should take a look at it.

Today, several replies to the Memorandum of Law submitted by the the Plaintiffs were filed.  These were filed by The "City and County Defendants," Ramsey County Attorney John Choi and Dakota County Attorney James Backstrom.  The links are to these documents.

The case is assigned to the Honorable John R. Tunheim, who is a United States District Court Judge in the District of Minnesota.  At this point, it is within the Judge's discretion to refer the matter to the Magistrate Judge for a Report and Recommendation with or without a hearing, to decide the motions without a hearing, or to set the matter on for an oral argument hearing before him.  It is not known at this time which course of action Judge Tunheim will take with regard to whether or not there will be an oral argument on these motions and who they would be before, Judge Tunheim or the Magistrate Judge, The Honorable Arthur J. Boylan.

The motions that have been filed are requesting that the case to be dismissed.  If that happens, this case will not go before a jury.




Monday, April 1, 2013

Three Motions to Dismiss Brought in Minnesota DRE Lawsuit

Last Spring, various law enforcement agencies in Minnesota worked together on picking people up and administering drugs to them.  The video showing this activity got a lot of views on Youtube.com and made national and international news.  A link to that video is here.

As I have covered on this blog before, some of the people who were subject to this testing brought a lawsuit against those who ran and participated in the program.

Now the State of Minnesota, Ramsey County and the "City and County Defendants" have brought three motions to dismiss this lawsuit.  This blog post is not intended in any way to be an official response to these motions, but rather as a vehicle to share these motions with the public.  Here are links to each of the memorandums of law in support of the motions to dismiss:

Minnesota Attorney General Lori Swanson's Memorandum in Support of Motion to Dismiss

Ramsey County Attorney John Choi's Memorandum in Support of Motion to Dismiss

"City and County" Memorandum in Support of Motion to Dismiss

The gist of the arguments in these motions are that the government and its actors are immune from suit and they can pretty much do whatever they want.  An over-arching theme in each memorandum is that members of the public, including these Plaintiffs, are like terrorists who should never have any recourse against the government.  Each of the Memorandums cites to and discusses the case of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) about a fellow who was picked up and detained on suspicion of involvement in terrorism.

There are a few other gems worthy of some comment in these memorandums.  For example, I think the most hilarious and absurd argument made by any of the parties is made by the Minnesota Attorney General, who writes in opposition to the Plaintiff's claim for injunctive relief (to tell them to stop running the program): "Plaintiffs cannot show that any future injury is irreparable because there are adequate remedies available in state civil and criminal courts.  (Page 9, State's Memorandum).  What is so funny about this assertion is that no one was ever charged with any crime related to these alleged crimes.  On a Friday afternoon, Hennepin County Attorney Mike Freeman had a press conference and declined to charge anyone.  Named in the suit is Riccardo Munoz, who was apparently the head of the DRE program at the time these incidents occurred.  Upon information and belief, he has not been fired for these actions.  Instead, the Minnesota Attorney General vigorously defends him and his actions and asks that he be dismissed from the lawsuit.

The Minnesota Attorney General also submits and Affidavit from Colonel Kevin Daly of the Minnesota State Patrol in support of its Motion to Dismiss.  In this Affidavit in paragraph 7, Col. Daly asserts: "On May 9, 2012, the DRE Program was suspended to further evaluate the DRE Program and Certification Process."  What's interesting about this affidavit is that it vaguely acknowledges some problems with the program, but at the same time asserts that DREs are still on the road in Minnesota using their "training" they received from the program.  Also, it appears that everyone who "graduated" from the program last April is a "Drug Recognition Evaluator."  Specifically, there was no problem with that episode of the program even though Col. Daly says in his affidavit that the program was "suspended."

It would be nice to know where the drugs were obtained from that were administered to the Plaintiffs and what they were.  If these units of government succeed in their motions, that question will probably never be answered.

One wonders at what point something like this becomes a political issue.  The persons making these decisions on how to handle these cases are elected people or working on the orders of elected people.  Do these elected people really think the conduct alleged in this Complaint (and admitted to) is acceptable?  Is there some point where someone stops passing the buck and resorting to hyper-technical arguments?  Will there ever be any real accountability for what went on here?

When our formal responses to these motions are filed, I will post them here.