Court dismisses some, but not all, claims in criminal identification suit

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The U.S. District Court recently dismissed several claims in a lawsuit against Bloomington and Hennepin County filed by Kylese Perryman, who was incorrectly identified as being involved in criminal activity. However, a false-arrest tort claim was allowed to proceed.

Two men carjacked a person and subsequently robbed a group of women at the Mall of America in September 2021. One of the people struck a woman with the end of a gun. The pair went to a Walmart store in Brooklyn Center and used stolen credit and debit cards.

Perryman was identified as a suspect by one or more analysts of the Hennepin County Criminal Information Sharing and Analysis (CISA) Division. Initially, Hennepin County asserted through a public statement that they attempted to use facial recognition software to identify a lead, but the Walmart surveillance video was not high enough resolution. Later that day, a CISA analyst reviewed booking photographs and noticed that a booking photograph of Perryman appeared to resemble the suspect from the Walmart surveillance video.

However, Perryman was about 5 inches taller than the suspect and about 35 pounds lighter. He also had tattoos on his right forearm, something the suspect did not have. Nevertheless, Perryman, then 19, was pulled over by state police in connection with the incidents. He was detained for five days. After spending time in jail and being on house arrest, police dropped the charges against Perryman. However, it took several more months to expunge Perryman’s record.

Perryman filed a lawsuit against the city of Bloomington, Hennepin County, and a Hennepin County detective, asking the court to stop Bloomington and Hennepin County from using facial recognition software for suspect identification, as well as seeking more than $250,000 in damages. He asserted false arrest, failure to train, and civil conspiracy, as well as a false arrest claim under Minnesota law. Hennepin County moved to dismiss those claims.

U.S. District Judge Donovan Frank rejected Perryman’s claim for false arrest and failure to train. Municipalities can be held liable if the violation resulted from an official municipal policy, an unofficial custom, or a deliberately indifferent failure to train or supervise an official or employee. Though Perryman asserted that all three avenues for municipal liability were alleged in the complaint, the court disagreed.

The court did not find that Perryman proved an official municipal policy. Although the Training Manual for Hennepin County’s facial recognition program prohibits using facial recognition technology to positively identify individuals, the court concluded that the complaint did not establish liability based on that policy. Even though Perryman asserted an instance where a Hennepin County employee violated the facial recognition policy, the court stated that it was not enough to plausibly support the existence of a fixed plan of action to violate the policy.

Nor did the court find evidence of an unofficial custom. “Perryman relies on his arrest — a single isolated incident — to support the existence of a custom,” the court wrote. “Even at the motion to dismiss stage, this is not enough to plausibly allege an unconstitutional claim.”

Additionally, the court did not find evidence that Hennepin County’s alleged failure to properly train its employees regarding facial recognition software led to violation of Perryman’s constitutional rights. Although the court agreed that inadequate training could serve as a basis for liability, there needed to be evidence that the organization was deliberately indifferent. The single instance was not persuasive enough for the court. “This single incident is not enough to establish a pattern of similar violations, and no facts in the Complaint support the conclusion that Hennepin County had notice that its course of training was deficient,” the court concluded.

Perryman also argued that Hennepin County was involved in a civil conspiracy. However, the court found that this claim also failed because Perryman did not assert the existence of an unconstitutional policy or custom. “It is not enough to allege that a Hennepin County employee, or employees, conspired with other state actors to deprive Perryman of his constitutional rights,” the court stated. “Perryman must allege facts which would support the conclusion that Hennepin County itself was involved in the conspiracy.”

However, the court, for now, has allowed Perryman’s separate false-arrest tort claim to proceed. While Hennepin County argued that it was entitled to vicarious immunity, the court disagreed. Perryman maintains that Hennepin County was “deliberately vague” regarding how he was identified, with questions remaining about who made the identification of Perryman and whether it was a facial recognition software error or human error. “The Court agrees with Perryman that at this stage of the proceedings it is unclear who exactly came to the conclusion that Perryman was one of the robbers,” the court concluded.

It also declined to find that Hennepin County was shielded by vicarious immunity. “At this stage of the proceedings, Perryman has sufficiently alleged that the Hennepin County prohibited the use of facial recognition technology to positively identify an individual—a ministerial duty—and a Hennepin County analyst, or analysts, did not follow that policy,” the court wrote.