(CN) – Minneapolis police had no right to arrest a group of people who dressed up like zombies and lurched down the street, protesting “mindless” consumerism during a summer festival, the 8th Circuit ruled.
The seven “zombies” met at the Nicollet Mall light-rail station in downtown Minneapolis during the city’s week-long Aquatennial summer festival. Their plan was to protest “mindless” consumerism by walking downtown dressed as zombies.
Wearing white powder, fake blood and dark makeup, the group walked “in a stiff, lurching fashion” down Nicollet Mall, according to the ruling. They carried four bags of sound equipment, including an iPod, radio transmitter, antenna, amplifiers and speakers, that provided the portable soundtrack to their zombie walk.
At about 7 p.m., someone called 911 to complain that the group’s members were “calling themselves zombies and almost touching people.”
When Minneapolis officers found the “zombies,” the members were no longer dancing or playing music, but were hanging out on a sidewalk watching a drum-line performance. An officer said he was taking them to the police station to be identified, apparently out of concern that they were affiliated with a gang known for wearing face paint.
One of the members, Jake Sternberg, asked whether they were being detained and on what charge, and an officer allegedly replied, “I don’t know, let’s call it disorderly conduct for now.”
All but one member of the group were held at the Hennepin County Adult Detention Center for two nights; the minor in the group was taken to a juvenile detention center.
Jail officials confiscated Sternberg’s prosthetic leg, explaining that he might use it as a weapon.
The group members were initially booked on charges of displaying simulated weapons of mass destruction, a charge punishable by up to 10 years in prison. But a sergeant reviewing the case determined that none of the sound equipment seized fit the definition of a simulated WMD.
Authorities returned the property, including Sternberg’s prosthetic leg, and released the group without filing a formal criminal complaint.
The zombies, however, sued the city and 13 police officers for damages, claiming their arrests and detentions were unconstitutional. In the same complaint, Sternberg accused Hennepin County and county employees of discriminating against him by confiscating his prosthetic leg.
The district court dismissed the complaint, saying the officers were entitled to qualified immunity.
The St. Louis-based appeals court reversed on the Fourth Amendment claims, saying the plaintiffs “were engaged in protected expressive conduct.”
“[A]n objectively reasonable person would not think probable cause exists under the Minnesota disorderly conduct statue to arrest a group of peaceful people for engaging in an artistic protest by playing music, broadcasting statements, dressing as zombies, and walking erratically in downtown Minneapolis during a week-long festival,” the three-judge panel wrote.
Nor was there probable cause to arrest the plaintiffs for displaying simulated WMDs, the court added.
“Though we recognize the seriousness of WMD offenses, we cannot say that displaying and using portable sound equipment … even remotely satisfies the statute’s definition of displaying simulated WMD,” the court wrote.
But the court upheld dismissal of the plaintiffs’ First Amendment retaliation and false imprisonment claims, citing a lack of evidence showing “retaliatory animus and bad faith.”
The court also rejected Sternberg’s claims over the confiscation of his prosthetic leg, saying the seizure was “justified by legitimate security concerns.”
In a partial dissent, Judge Steven Colloton said the officers had probable cause to arrest the plaintiffs under Minnesota’s disorderly conduct law.
He noted that no state courts have embraced the majority’s “narrowing construction”: that the ban on “boisterous or noisy conduct” is limited to “fighting words.”
“The disorderly statute applies to persons who engage in ‘boisterous or noisy conduct … tending reasonably to arouse alarm, anger, or resentment in others,'” Colloton wrote. “Minnesota courts have interpreted this language to require only that the conduct be ‘likely’ to have the proscribed effect. No actual commotion need occur.”
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