Bias award over arrest upheld 

Posted: 1:00 am Mon, January 18, 2010
By Barbara L. Jones

The Minneapolis Police Department is liable for damages for a civil rights violation even though the Minneapolis Commission on Civil Rights based its award on circumstantial evidence, the Court of Appeals has ruled.

The respondent, an African-American male, was involved in a tussle with the Minneapolis police officers who stopped him on suspicion of committing a robbery. Store employees quickly cleared the man, but he was nonetheless arrested on misdemeanor charges of obstruction of justice and disorderly conduct.

The man filed a race-bias complaint with the civil rights commission, claiming he was assaulted and jailed by the officers, who could have merely issued a citation for the alleged misdemeanors.

After a commission hearing that followed a jury-trial format, the panel awarded the respondent, who was detained for five hours, $5,000 for mental suffering, $382.50 in actual damages and $8,500 in punitive damages. It also ordered payment of an additional $8,500 in civil penalties to the city of Minneapolis.

Citing the lack of direct evidence of racial discrimination, the police brought a certiorari appeal to the Court of Appeals.

But, in a 2-1 decision, the three-judge panel upheld the commission’s decision, saying that there was adequate indirect evidence in the record to support the commission’s determination that the police conduct was so at variance with what would reasonably be anticipated absent racial discrimination in the arrest and jailing of the respondent that discrimination could be inferred.

Judge David Minge wrote the opinion for the court with Judge James Harten, a retired judge serving by appointment, dissenting.

The evidence was sufficient to allow the commission panel to infer that the police “could be presumed to know the racially charged atmosphere for policing in the African-American community based on their training,” the court also said.

The 22-page opinion is Minneapolis Police Department v. Kelly.

Jailed for disorderly conduct

The respondent was walking down the street in a neighborhood where an armed robbery had occurred. The robber was described as an African-American male wearing a black jacket and jeans, which matched what the respondent was wearing.

A park police officer approached the respondent from behind and told him to stop, but the respondent did not hear because he was listening to music on earphones. The officer grabbed the respondent from behind and wrestled him to the ground, and the man resisted. Minneapolis police arrived to assist and applied pain-compliance holds and knee strikes. They took him to the store that had been robbed where the employees said he was not the robber.

The man was arrested and charged with obstruction of justice and disorderly conduct. The charges against him were dropped.

The commission on civil rights convened a three-member panel under the Minnesota Administrative Procedures Act that concluded that the man was unreasonably detained after he was cleared of the robbery and that race was a discernible, discriminatory and causative factor in the man’s adverse treatment.

Noting that reviews of agency decisions are based on a deferential standard, the court upheld the commission’s determination even though there was no direct evidence of discrimination.

“The very purpose of the so-at-variance standard is to address less blatant acts of wrongful discrimination by allowing a fact finder to examine misconduct and weigh the circumstances to determine underlying motives by indirect evidence,” Minge wrote.

Minge pointed out that the commission had found that the man was jailed in clear violation of the rule that mandates a citation for misdemeanor offenses and the police officers’ nondiscriminatory reasons for his detention (the possibility the man would fail to appear for the citation and the fear of future crimes) were pretextual.

The evidence was sufficient to allow the commission to infer that the officers jailed the man because of his conduct during the arrest, which in turn was due to his anger, frustration and his perception that he was the victim of a racial attack, Minge said.

The court therefore concluded that the commission’s decision was not arbitrary and capricious or unsupported by substantial evidence.

Dissent: No overt conduct

Dissenting, Harten said that the civil rights commission failed to identify any overt discrimination and relied on its own “obscure notion of constructive racial discrimination.” He pointed out that the officers did not use epithets or any other language that would imply racial discrimination.

“In fact, the only racial slurs in the record came from [the arrested man] himself, who repeatedly used racially tinged insults and referred to the Asian-American [police officer] as a ‘white slave,’” Harten wrote.

Minneapolis assistant city attorney Timothy Skarda said the office was still reviewing the opinion and had not decided whether or not to seek further review.

Decision at variance with standard?

Minneapolis attorney Andrew Parker, who has represented both police and plaintiffs in civil rights cases, said the decision has two significant impacts.

It appears to expand the “so-at-variance” standard, and it will affect arrest/detention decisions by “tainting officer’s discretion with after-the-fact discrimination review,” Parker said. “It significantly broadens the so-at-variance standard to situations where a suspect was [arrested appropriately] and behaved wrongfully.”

The commission’s determination that the police did not illegally seize the man or use excessive force in the arrest undercuts a finding that later acts were discriminatory, Parker added.

Parker also foresees the possibility of more civil suits against police as a result of the decision.

“The expansion of the so-at-variance test may mean that any time a plaintiff who is a protected class member is successful in establishing excessive force, he or she may have also necessarily established discrimination. By definition, excessive force would be ‘at variance’ and would have to be discriminatory,” Parker said.

The police went wrong by taking the man into custody rather than issuing a tab charge, said Minneapolis attorney Robert Bennett, who has represented plaintiffs in actions against police. The practice of making a custodial arrest rather than issuing a ticket is completely discretionary and thus ripe for abuse, he said.

“It’s one of the most frequently used tools to improperly mess with a person. It doesn’t have to be racial,” Bennett said. When the man resisted arrest and the other officers came to the first officer’s aid, they were not out of line, but the first officer didn’t have to jump right in to using force, he added.