"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.

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.

Twenty-First Century Debtors’ Prison: The Minnesota Model. Minnesota County Jails have become Dickensian Debtors’ Prisons. Zimmerman vs. Dave Bellows (the Dakota County Sheriff). District of Minnesota Case No. 12-CV-2811.

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A Debtor filed bankruptcy, then spent 5 days on 23 hour-a-day lockdown in the Dakota County Jail on a Minnesota “Debt Warrant” – He was never brought before a judge.

Most people are not aware that you can end up in jail for owing a debt.  If you owe a creditor money and the creditor sues you in Minnesota State Court, they can obtain a “money judgment” against you.  This is essentially a court order that one person or entity owes another person or entity money.  Once a judgment is obtained, there are several things that a creditor can do to collect the debt.  A creditor can attempt to levy on a bank account or garnish your wages. 

Another thing a Creditor can do is mail you a piece of paper called a “Demand for Disclosure” (if they have an attorney, if a creditor is not represented by an attorney, they need to obtain an “Order for Disclosure” from the Court Administrator).  Either of these is considered to be an order of the Court to disclose your assets to the creditor.  If you do not respond to the Demand or Order within ten days, the creditor can apply to the Court for an “Order to Show Cause.”   An Order to Show Cause is signed by a judge, and it has a time and place that the Debtor to whom it is directed needs to appear in Court and “Show Cause” to the Court why they should not be held in contempt of court for failing to respond to the Order to Disclose assets.  This Order to Show Cause must be personally served on the Debtor and the original signature of the Judge needs to be shown to the Debtor at the time the Order to Show Cause is served.  If the debtor shows up at the hearing set on the Order to Show Cause, the Judge will order the debtor to fill out the financial disclosure form that was mailed to them.  If the debtor does not fill out this form, the Judge can and probably will have the debtor held in jail for contempt until such time as their  - contempt is “purged” – either by payment of the debt or by filling out the financial disclosure form.  If a debtor does not show up for the hearing set on the Order to Show Cause, the Judge will issue a warrant for the arrest of the debtor.  When the debtor encounters law enforcement, they will be arrested and brought to jail.  Once the debtor is in jail, the debtor needs to be given an opportunity to purge their contempt either by filling out the disclosure form or by paying the debt.

All of these procedures described above are creatures of Minnesota State Law and Minnesota State Court.  Bankruptcy is Federal Law and is handled in Federal Courts.  Article VI, Clause 2 of the United States Constitution, the “Supremacy Clause” states as follows:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

Julius Chad Zimmerman filed for Chapter 7 Bankruptcy in the District of Minnesota on October 27, 2011.  At that time, he had a “debt warrant” out for him in Dakota County.  The creditor who had obtained the warrant was notified of the bankruptcy filing.  When Mr. Zimmerman filed for bankruptcy, he immediately obtained the protection of the bankruptcy “automatic stay” set forth in 11 USC § 362, which states in relevant part as follows:

“(a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;

(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title”

(Italicization added)

In other words, the automatic stay is an order of the Federal Court for any entity to cease any efforts to collect money from the debtor.  It is like a shield that instantly envelopes the Debtor that protects him from any collection efforts.

On November 10, 2011, police in the town where Mr. Zimmerman lived came to his home while he was babysitting his girlfriend’s children and arrested him on the debt warrant and booked him in the Dakota County Jail.  Mr. Zimmerman was not released from the Dakota County Jail until November 15, 2011.  In the Dakota County Jail, Mr. Zimmerman was placed on 23 hour-a-day lockdown.  He was not brought before a Judge and it was days before he could get a hold of his attorney (Nathan Hansen, me).  The creditor had failed to get the debt-warrant against Mr. Zimmerman quashed (the term of art in Minnesota for getting rid of a warrant).  Mr. Zimmerman’s attorney contacted the creditor’s attorney, who contacted the jail to try and get Mr. Zimmerman released.  It still took several days to get Mr. Zimmerman released.

Mr. Zimmerman did not have any pending criminal charges against him and was not subject to any sort of criminal proceeding or process.  He was only in jail on a debt-warrant.  When he was arrested and brought to the Dakota County Jail, Mr. Zimmerman repeatedly told his captors that he had filed Chapter 7 bankruptcy on October 27, 2011 and that the Federal Court’s automatic stay was in place.  His captors ignored his pleas completely.  Mr. Zimmerman’s captors at the Dakota County Jail not only explicitly ignored his assertion about the automatic stay, they also never brought him before a Judge to give him an opportunity to purge his contempt – or better yet, explain that he had filed bankruptcy and under the protection of the Federal Court’s automatic stay.

Creditors can be held liable to debtors for failing to get debt-warrants quashed – and Mr. Zimmerman has settled with the creditor in his case.  However, important questions and claims still remain.  Mr. Zimmerman has filed suit in Federal District Court in Minnesota against the Dakota County Sheriff.  In addition to his claims for damages from being held in jail illegally, Mr. Zimmerman seeks prospective injunctive relief (asking the Court for an Order to tell the Sheriff to specifically do something, not just pay money) as follows:

“An Order for prospective injunctive relief against the Defendants:

a.      Requiring Defendants to develop appropriate policies and procedures to ensure that civil judgment debtors are timely brought before a Judge so that they may be heard.

b.      Requiring Defendants to develop appropriate policies and procedures to ensure that debtors arrested on civil judgment warrants are not held indefinitely on 23 hour-a-day lockdown in their facility and otherwise not treated cruelly and treated appropriately as debtors and not as persons accused of or convicted of crimes.

c.      Requiring Defendants to develop appropriate policies and procedures to verify if judgment debtors held on civil debt warrants have invoked the automatic stay pursuant to 11 U.S.C. § 362 et seq if the debtors assert verbally or in writing that they have invoked the automatic stay.”

(Plaintiff’s Complaint).

The Dakota County Sheriff has answered the Plaintiff’s Complaint, asserting among other things, that the Federal Court's automatic stay does not apply to him and that he is immune from suit.  At this point, the Dakota County Sheriff has not done anything to fix the broken procedures at his jail.  As the economy worsens and more people are in debt, debt-warrants and incarceration for debt are likely to increase in Minnesota.  Minnesota Sheriff’s Offices need appropriate procedures in place to protect Debtors’ rights under state and federal law.  I will update this blog when anything significant develops in this case.  If any members of the media are interested in this story and these issues, I would be happy to speak with them.  If you are subject to a debt-warrant or are otherwise considering filing bankruptcy, I can be contacted at my office at 651-704-9600.

Civil Rights Lawsuit Filed Against Minnesota Drug Recognition Evaluators Program

Press Conference Notice and Press Release

Press Conference

Date/Time: 2-4-2013 – 1:00 P.M.

Where:       Room 181 of the State Office Building

What:         Press Conference regarding the filing of a federal civil rights lawsuit against the     State of Minnesota and its agents

Contact:     Nathan Hansen (651-216-6044) or Alan Milstein (856)-661-2078

Press Release

Minneapolis, Minnesota (U.S.A) – Today, Saint Paul attorney Nathan Hansen and New Jersey attorney Alan Milstein filed a lawsuit in Federal District Court in Minneapolis on behalf of Forest Olivier, Michael Bounds, Wia Day, Adam Laguna, Daniel Bell and Zachary Lorenz  against the State of Minnesota, the Minnesota State Patrol and various law enforcement entities and personnel involved in what is  known as the Drug  Recognition Evaluators Program which was suspended due to the activity described in the Complaint.

The two-count Complaint alleges that these defendants designed and implemented a pernicious human research experiment exposing young people from minority and/or disadvantaged backgrounds to various illegal drugs in an effort use these individuals as human guinea pigs for the benefit of law enforcement. The experiment, of course, had no scientific or forensic validity, and could never have been approved as competent human research. But not only was the experiment unethical by design, the defendants conducted their research without the informed consent of the human subjects, thus violating the most essential ethical requirements which form the basis of our laws and regulations governing human subject research. 

Mr. Hansen practices in the field of Civil Litigation, Bankruptcy and Criminal Defense. Mr. Milstein is a nationally recognized litigator who has been a pioneer in the field of representing human subjects injured in unethical research experiments.

For more information on this lawsuit, you may contact Attorney Nathan Hansen at (651) 704-9600 or at nathan.hansen@gmail.com or Alan Milstein at (856) 661-2078 or amilstein@shermansilverstein.com.