Sally Ness v. City of Bloomington

Citation: Not availableDocket: 20-2571

Court: Court of Appeals for the Eighth Circuit; September 2, 2021; Federal Appellate Court

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Sally Ness is in a legal conflict with the City of Bloomington, Minnesota, regarding her efforts to photograph and record activities in a public park, which includes images of children, to publicly address her grievances with city officials about park usage. Ness filed a lawsuit against the City, the Hennepin County Attorney, and two police officers, arguing that a state harassment law and a city ordinance infringe on her First Amendment rights. She sought a declaration of unconstitutionality for these laws, injunctive relief, and nominal damages. The district court dismissed her complaint and denied her summary judgment motion. On appeal, the court dismissed her challenge to the harassment statute as moot since it was repealed. It upheld the dismissal of her claims for damages against the police officers and the City concerning the harassment statute. However, the court reversed the lower court's ruling on the city ordinance that prohibited photography and video recording in the park, declaring it unconstitutional as applied to Ness's activities. The case involves a backdrop where the Bloomington City Council had previously permitted a youth center to operate adjacent to Smith Park, with ongoing neighborhood concerns raised by Ness regarding the center's compliance with usage agreements. Ness documents her observations through recordings shared online, emphasizing her role as a community representative.

In August 2018, a formal complaint was filed against Ness for potential harassment violations related to her recording activities at Smith Park, but no charges were brought. In August 2019, police officers approached her during her filming near the Center, investigating a harassment complaint from Success Academy's principal and a parent. They warned her that filming could lead to arrest if children felt threatened, regardless of her intent, and asked her to stop. In October 2019, two detectives met Ness at home, labeling her a suspect in a harassment case concerning her recordings of park use by the Center and school, yet no prosecution occurred. The City Council enacted an ordinance in October 2019 prohibiting the photography and recording of children in parks without parental consent, classifying violations as petty misdemeanors. Subsequently, Ness sued the City of Bloomington, the Hennepin County Attorney, and the involved officers under 42 U.S.C. 1983, claiming First and Fourteenth Amendment violations and seeking a declaration that the harassment statute and city ordinance were unconstitutional. The Minnesota Attorney General intervened to defend the harassment statute's constitutionality. The district court dismissed Ness's complaint, ruling she lacked standing to challenge the statute and that the officers were entitled to qualified immunity. The court also found her claims against the city ordinance insufficient under the First Amendment. On appeal, Ness contests the dismissal of her claim regarding the harassment statute, arguing the district court erred on standing. The county attorney and the State assert that her claim for injunctive relief is moot, as it no longer presents a live controversy under Article III.

Actions seeking injunctive relief related to a law that has been amended or repealed are generally moot, unless the issues are likely to recur but evade review. In the case of Ness, her claim for injunctive relief against the 2019 harassment statute is moot due to amendments made by the Minnesota legislature in 2020. While both the 2019 and 2020 statutes share similarities regarding harassment definitions, the 2020 statute imposes a specific intent requirement, unlike the 2019 statute, which allowed prosecution based solely on the knowledge that behavior could frighten a victim. Ness argued the 2019 statute's lack of an intent requirement was unconstitutional, asserting she did not intend to harass but rather to monitor violations. However, because the new statute does not disadvantage her in the same fundamental way, her challenge to the 2019 statute is rendered moot.

Ness also sought injunctive relief against the 2020 statute on appeal, but since her original complaint did not address this statute, and the district court did not consider it, the appellate court declined to evaluate its constitutionality. The mootness of her claim precludes the need to assess whether she has standing under Article III. Furthermore, Ness contends that her First Amendment rights were violated due to threats from city police to enforce the 2019 statute against her, claiming these threats silenced her. However, her claim against the officers was dismissed based on their qualified immunity. To overcome this immunity in a civil suit under 42 U.S.C. § 1983, a plaintiff must demonstrate that the defendants violated a clearly established constitutional right at the time of the alleged incident.

Ness argues that the officers violated her right to film by threatening to enforce a harassment statute against her for videotaping children in Smith Park. She claims that officers Meyer and Roepke warned her that if she continued filming and complainants felt harassed, she could be arrested, prompting her to stop recording. The officers justified their warning by reasonably interpreting Minnesota's harassment statute, which allows conviction if the actor knows their conduct may frighten or intimidate the victim. They informed Ness that her actions had made a school principal and a parent feel intimidated, thus warning her of potential arrest for harassment. This reliance on a valid, constitutional statute typically supports an officer's qualified immunity. The court noted that police officers are not expected to be constitutional experts and that the statute's alleged flaws were not evident enough to negate its constitutionality. Therefore, the district court correctly dismissed Ness's claims against the officers based on qualified immunity.

Additionally, Ness asserted claims for nominal damages against the City and the officers in their official capacities under 42 U.S.C. § 1983, which are treated as claims against the municipality. The district court dismissed these claims without detailed reasoning. Under § 1983, municipal liability requires proof that a policy or custom of the municipality caused a constitutional violation, not merely that the officers acted under state law. Ness did not demonstrate that the City adopted the state harassment statute as its official policy or that it had a custom of enforcing the statute unconstitutionally.

The complaint lacks allegations that the City adopted the state statute into its municipal code or that a policymaker, such as the chief of police, was involved in enforcing it. The court rejects the notion that enforcement of a state statute by city police implies that the statute became a city policy. The enforcement of state law is viewed as a benign municipal practice with a tenuous connection to any alleged constitutional violation. Ness’s claim for nominal damages hinges on vicarious liability of the City for police officers' actions, stemming from her assertion that she halted filming due to threats of enforcement of the Harassment Statute by police officers, which she claims created a reasonable fear of prosecution. However, since these actions do not stem from an established City policy or custom, her claim for nominal damages is deemed inadequate.

Ness also contests the constitutionality of a city ordinance prohibiting photography or recording of children in parks without parental consent. Though the district court dismissed the City’s motion, Ness argues she is entitled to summary judgment, asserting the ordinance is unconstitutional as it relates to her First Amendment rights when photographing public controversies for online dissemination. The City and Ness differ on whether the ordinance restricts speech or conduct. If the act of recording is linked to expressing ideas, it is protected speech. The court determines that Ness’s photography and video recording qualify as speech because they are intended to inform the public about issues at Smith Park, thus receiving First Amendment protection as a crucial part of the speech process involved in news gathering.

The ordinance in question is evaluated under the appropriate level of scrutiny, recognizing that a public park constitutes a traditional public forum. Content-neutral time, place, and manner restrictions are permissible if they serve a significant governmental interest and are narrowly tailored. In contrast, content-based restrictions are typically unconstitutional unless they pass strict scrutiny, requiring the government to demonstrate a compelling interest that is narrowly tailored to achieve that interest.

Ness argues that the ordinance is content-based, as its enforcement requires officials to assess the content of her photography and filming to determine if it captures images of children. The City, however, views it as a time, place, and manner restriction. The assessment concludes that the ordinance is indeed content-based in its application to Ness, as it necessitates content examination for enforcement.

The City claims a compelling interest in protecting children from intimidation and exploitation, suggesting that a narrowly tailored ordinance could potentially meet strict scrutiny. However, the ordinance fails this standard as applied to Ness, who aims to document public interest issues regarding permit violations and has methods in place to protect juveniles' identities. The ordinance is deemed overinclusive, hindering Ness’s rights without just cause, thus failing the strict scrutiny test.

Consequently, the ordinance, as it applies to Ness, is ruled unconstitutional under the First Amendment. Although Ness seeks a broader declaration of the ordinance's unconstitutionality, the court refrains from addressing this to limit the ruling to the specifics of the case at hand. The district court’s dismissal of claims against certain officers and aspects of the ordinance is affirmed, while judgment is remanded for Ness regarding the unconstitutionality of the ordinance as it pertains to her activities at Smith Park.