Petition for Writ of Certiorari — Teresa M. Graham, Petitioner v. Shannon L. Barnette, et al.

Supreme Court briefDec 28, 2020

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APPENDIX

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-2512

___________________________

Teresa M. Graham

Plaintiff - Appellant

Sgt. Shannon L. Barnette; Officer Amanda Sanchez; Officer Mohamed Noor; City

of Minneapolis

Defendants - Appellees

-----------------------------State of Minnesota

Amicus Curiae

____________

Appeal from United States District Court

for the District of Minnesota

____________

Submitted: June 17, 2020

Filed: August 17, 2020

____________

Before GRUENDER, WOLLMAN, and KOBES, Circuit Judges.

____________

GRUENDER, Circuit Judge.

APPENDIX 1A

Appellate Case: 19-2512

Page: 1

Date Filed: 08/17/2020 Entry ID: 4945774

Teresa Graham sued Sergeant Shannon Barnette, Officer Mohamed Noor,

Officer Amanda Sanchez (“the officers”) and the City of Minneapolis (“the City”),

asserting claims arising under 42 U.S.C. § 1983 and Minnesota state law after the

officers entered Graham’s home without a warrant, seized her, and transported her

to a hospital for a mental health evaluation. The district court 1 granted the officers

and the City summary judgment, and Graham appeals. We affirm.

“We recount the facts of this case in the light most favorable to [Graham], the

non-moving party.” Meehan v. Thompson, 763 F.3d 936, 938 (8th Cir. 2014). In so

doing, we rely on the factual findings of the district court as well as audio and video

recordings of the relevant events. Saylor v. Nebraska, 812 F.3d 637, 642 (8th Cir.

2016); Meehan, 763 F.3d at 938.

At approximately 10:00 a.m. on May 25, 2017, Graham called 911 and

reported that a man was smoking marijuana on a retaining wall behind her home. A

City police officer arrived at Graham’s address later that morning, saw no one, and

left without following up with Graham. Several hours later, Graham called the

police again and left a voicemail for the precinct’s commander, complaining that

officers did not respond to her emergency call and referencing an email she sent

earlier in the day regarding the police department’s failure to respond to a different

report she had filed. Around 6:00 p.m., a police officer returned Graham’s call and

informed her that officers had investigated her complaint regarding the unidentified

man in her backyard.

Things then took an unusual turn. At 6:11 p.m., an anonymous informant

claiming to be Graham’s cousin called 911 and reported that Graham had called him

at work to threaten him and his family. He told the 911 operator that “this is not an

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

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emergency” and that he “did not think [Graham] was going to do anything.” Even

so, he requested a “welfare check” because he believed Graham had a history of

mental health issues. The operator summarized the call for the responding officers

in a comment to the incident report that read, “CLRS COUSIN WHO JUST

CALLED HIM AT WORK AND THREATENED HIM AND HIS FAMILY.” The

operator also noted that the individual requested a welfare check on Graham and that

Graham’s mental health diagnosis was unknown.

Two hours later, Officers Noor and Sanchez arrived at Graham’s home.

Officer Sanchez recorded the encounter using a body camera. When Graham

answered the door, she demanded to know who requested the welfare check, claimed

she was being slandered, retrieved her phone to videotape the officers, accused the

police of harassing her because of her earlier complaints, and then demanded that

the officers leave. The officers apologized for disturbing Graham, left her home,

and noted in their incident report that they were unable to “check on her welfare”

because of her insistence that they leave but concluded she “appeared to be AOK.”

The interaction between Graham and the police did not end there, however.

At 9:05 p.m., a 911 operator reported that Graham had called three more times since

the welfare check. Graham first called at 8:20 p.m. to complain about what she

viewed as the officers harassing her in retaliation for her previous calls. The operator

described Graham as agitated and aggressive and suggested that Graham was not

making sense. Approximately fifteen minutes later, Sergeant Barnette returned

Graham’s call, and the two spoke briefly about Graham’s concerns. At 8:40 p.m.,

Graham called 911 again, asking to be connected to the Edina police department.

Twenty minutes later, she called once more and made the same request.

At this time, Sergeant Barnette ordered Officers Noor and Sanchez to take

Graham into custody for an emergency mental health evaluation as authorized by

Minnesota’s Civil Commitment and Treatment Act (“MCCTA”), Minn. Stat.

§ 253B.05, subd. 2(a) (2017), which permits an officer to seize a person for an

emergency mental health evaluation “if the officer has reason to believe . . . that the

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person is mentally ill . . . and in danger of injuring self or others if not immediately

detained.” In ordering the seizure, Sergeant Barnette relied on the officers’

interactions with Graham throughout the day, the anonymous report that Graham

had threatened her cousin, and Barnette’s own previous interactions with Graham

through which Barnette claimed to be aware of “some mental health history” and a

history of restraining orders.

The officers arrived for a second time at Graham’s home at 9:40 p.m. By this

time, one of Graham’s family members—a state police officer—had warned the

Edina police department that Graham may fight with police, and Sergeant Barnette

decided to join Officers Noor and Sanchez at Graham’s home. The officers wore

body cameras that recorded the encounter.

When the officers arrived, Graham opened the interior front door but left her

storm door locked and shut. Graham appeared angry, told the officers that she did

not call them for help, demanded that they leave her property, and slammed the door.

Sergeant Barnette then removed the screen from the storm door to allow entry should

Graham reopen the interior door. With the interior door closed, Graham told the

officers she was fine. She then called 911 to complain that the officers would not

leave. After an extended discussion with the officers through the door, Graham

reopened the door, at which point the officers entered her home through the thenscreenless storm door and held Graham by each arm. During the encounter in her

home, Graham did not resist or threaten the officers, but she did criticize them and

threaten to sue them, alleging they were kidnapping her because of her complaints.

After several minutes, the officers placed Graham in an ambulance, noting in

the relevant paperwork that they took Graham into custody because she

“continuously called 911 and per dispatchers was verbally agitated and not making

sense.” Graham was then transported to Southdale Fairview Hospital, where she

was evaluated and subsequently discharged after an examination demonstrated that,

while she exhibited “some paranoid behavior” and was “royally pissed,” she was

“somewhat rational” and, according to the examining physician, not “hold-able.”

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Graham brought suit under 42 U.S.C. § 1983, alleging the officers engaged in

a conspiracy to violate her First and Fourth Amendment rights by conducting an

unreasonable search and seizure, using excessive force, damaging her property, and

arresting her in retaliation for protected speech. She also brought a claim against the

City under Monell v. Department of Social Services, 436 U.S. 658, 690 (1978),

alleging the City’s policy regarding seizures for emergency mental health

evaluations caused the officers’ unconstitutional conduct. Finally, Graham brought

Minnesota state-law claims against the officers for false imprisonment, battery,

assault, and negligence.

The district court entered summary judgment in favor of the officers, granting

them qualified immunity on Graham’s Fourth Amendment claims because it

determined that the officers had not violated a clearly established constitutional right

when they entered Graham’s home and seized her. The district court also determined

that Graham had not established a triable issue of fact regarding her retaliatory arrest

claim, and it granted the officers statutory and official immunity on Graham’s statelaw claims. The district court also entered summary judgment in favor of the City

because it determined that the City’s policy concerning seizures for emergency

mental health evaluations was not facially unconstitutional and that Graham had

failed to plead facts sufficient to support a claim for failure to train or supervise.

Graham appeals.2

II.

“We review the district court’s grant of summary judgment and qualified

immunity rulings de novo.” Samuelson v. City of New Ulm, 455 F.3d 871, 875 (8th

Though Graham raised claims of excessive force, property damage, and

conspiracy before the district court, she has not briefed them on appeal. We thus

consider those claims abandoned. Griffith v. City of Des Moines, 387 F.3d 733, 739

(8th Cir. 2004).

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Cir. 2006). Summary judgment is proper if, when viewing the facts in the light most

favorable to the non-moving party, see Mullenix v. Luna, 577 U.S. ---, 136 S. Ct.

305, 307 (2015) (per curiam), “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law,” Fed.

R. Civ. P. 56(a). A genuine dispute exists “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

Graham first argues that the officers violated her clearly established Fourth

Amendment right against unreasonable searches by committing a warrantless entry

of her home without probable cause that she presented an imminent threat to herself

or others. The officers respond that probable cause is not the correct standard and

that, even if it was, the standard was not clearly established, meaning they are

entitled to qualified immunity.

A defendant official is entitled to qualified immunity unless “(1) the facts,

viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a

constitutional or statutory right; and (2) the right was clearly established at the time

of the deprivation.” Walton v. Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014). 3 Here,

we conclude the officers acted reasonably in conducting a warrantless entry of

Graham’s home and thus did not violate a constitutional right. See Plumhoff v.

Rickard, 572 U.S. 765, 774 (2014) (explaining that courts should analyze whether a

constitutional right was violated when doing so “promotes the development of

constitutional precedent” in an area where the question presented “do[es] not

frequently arise in cases in which a qualified immunity defense is unavailable”);

Graham argues that qualified immunity is an invalid legal doctrine. This

argument is foreclosed by a long line of Supreme Court and Eighth Circuit

precedent. See, e.g., White v. Pauly, 580 U.S. ---, 137 S. Ct. 548, 551 (2017) (per

curiam); Lane v. Nading, 927 F.3d 1018, 1022 (8th Cir. 2019).

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see also Hatchett v. Philander Smith Coll., 251 F.3d 670, 674 (8th Cir. 2001)

(explaining that the court of appeals may affirm the district court on any ground

supported by the record).

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. Const. amend. IV. As a result, the Supreme Court has held that warrantless

entry into the home without consent is presumptively unreasonable. Groh v.

Ramirez, 540 U.S. 551, 559 (2004). “Nevertheless, because the ultimate touchstone

of the Fourth Amendment is reasonableness, the warrant requirement is subject to

certain exceptions.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (internal

quotation marks omitted). The district court determined that an exception applied

here because the officers entered the home for the purpose of conducting a welfare

check, reasoning that they were “engage[d] in what, for want of a better term, may

be described as community caretaking functions, totally divorced from the detection,

investigation, or acquisition of evidence relating to the violation of a criminal

statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973).

We have previously held that an officer may make a warrantless entry of a

home “[when] the officer has a reasonable belief that an emergency exists requiring

his or her attention.” United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006).

The “reasonable belief” required under this exception “is a less exacting standard

than probable cause.” Id.; see also United States v. Quarterman, 877 F.3d 794, 800

(8th Cir. 2017) (“If officers have an objectively reasonable basis that some

immediate act is required to preserve the safety of others or themselves, they do not

also need probable cause.”). When presented with such an emergency, we determine

the reasonableness of an officer’s entry by weighing “the government[al] interest in

law enforcement’s exercise” of its community caretaking function, “based on

specific and articulable facts,” against “the individual’s interest in freedom from

government intrusion.” United States v. Sanders, 956 F.3d 534, 539 (8th Cir. 2020).

“When examining whether the officers had a reasonable belief . . . we look to the

facts known to the officers at the time they made the decision to enter.” Id. The

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legitimate scope of a search after warrantless entry is limited by the nature of the

emergency that justified the entry itself. United States v. Smith, 820 F.3d 356, 362

(8th Cir. 2016). We may analyze the officers’ conduct together when, as here, they

operated as a single team, relying on and sharing the same information. See United

States v. Gillette, 245 F.3d 1032, 1034 (8th Cir. 2001).

In this instance, we are satisfied that when the officers arrived at Graham’s

home, they were not acting to detect, investigate, or acquire evidence relating to a

crime. See United States v. Harris, 747 F.3d 1013, 1018 (8th Cir. 2014). Instead,

they were responding to potentially dangerous circumstances concerning Graham’s

mental health. At least one member of the community had asked the officers to

check on Graham, see id.; Winters v. Adams, 254 F.3d 758, 762-74 (8th Cir. 2001)

(holding that the community caretaking doctrine applied when officers responded to

a complaint that an individual was acting irrationally at the end of a dead-end street),

and Graham had called 911 no fewer than five times, strongly suggesting she was in

need of emergency assistance, see United States v. Najar, 451 F.3d 710, 719-20

(10th Cir. 2006) (finding officers’ entry of home reasonable when occupant called

911, did not immediately answer the door when police arrived, and denied having

called 911 when he finally opened the door).

Affording the officers “substantial latitude in interpreting and drawing

inferences from factual circumstances,” United States v. Washington, 109 F.3d 459,

465 (8th Cir. 1997), we also conclude that the warrantless entry into Graham’s home

was justified by a reasonable belief that Graham was experiencing a mental health

emergency and might harm herself or others if not detained, see Quezada, 448 F.3d

at 1007. The officers could reasonably believe that Graham had recently made some

sort of threat to her cousin; she had called 911 five times that day and three times

within two hours; and the operator had noted that she was “not making sense” and

that each time she was argumentative, uncooperative, and agitated; Sergeant

Barnette knew Graham had a history of restraining orders; and a second member of

Graham’s family warned the police department that she may fight the officers.

When the officers arrived at her home the second time, Graham was agitated and

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refused to talk with them. She initially stated that she had not called the police—

even though Sergeant Barnette identified herself and explained that she and Graham

had spoken shortly before. When the officers tried to enter, Graham slammed the

door and called 911 again even as the officers attempted to explain, as one officer

put it, “we are 911.”

“When viewed collectively, these facts could lead a reasonable police officer

to conclude there was either a threat of violence or an emergency requiring

attention.” Burke v. Sullivan, 677 F.3d 367, 372 (8th Cir. 2012). And because the

officers could reasonably believe there was an emergency requiring attention, the

government’s interest in determining whether Graham was a threat to herself or

others outweighed Graham’s interest in being free from the governmental intrusion.

See City & Cty. of San Francisco v. Sheehan, 575 U.S. ---, 135 S. Ct. 1765, 1774-75

(2015) (concluding police “did not violate any federal right” when, after being

summoned because the plaintiff began acting erratically and threatened her social

worker, they “knocked on the door, announced that they were police officers, . . .

informed [the plaintiff] that they wanted to help her,” and then entered the plaintiff’s

private room on the basis of providing “emergency assistance”); Estate of Bennett v.

Wainwright, 548 F.3d 155, 169 (1st Cir. 2008) (upholding as reasonable a

warrantless entry into a home to take “protective custody” of a mentally ill person

who had stopped taking his prescribed medication and had verbally threatened his

mother).

Finally, once inside the home, the officers did not expand the scope of their

search beyond that which was justified by the emergency. “The justification for the

officers’ entry ar[ose] from their obligation to help those in danger and ensure the

safety of the public,” and the officers “carefully tailored” “the scope of the

encounter” so as to “satisfy th[at] purpose.” Smith, 820 F.3d at 361-62. Upon entry,

they immediately located Graham, secured her person so she could not harm herself

or anyone else, and limited their entry to this purpose rather than, say, searching

throughout the rest of her home or rummaging through her belongings. See id.

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(explaining that the scope of the entry and search in the emergency-aid context must

be limited to determining whether an emergency exists).

The officers thus acted reasonably when entering Graham’s home.

Accordingly, we affirm the district court’s grant of summary judgment in favor of

the officers on Graham’s warrantless entry claim.

Graham next alleges that even if the warrantless entry was reasonable, the

officers violated her Fourth Amendment right to be free from unreasonable seizures

when they seized her without probable cause to believe she was a danger to herself

or others. The district court determined that the Fourth Amendment’s prohibition

on unreasonable seizures requires that officers have probable cause of dangerousness

to justify a seizure for an emergency mental health evaluation, but it granted the

officers qualified immunity because the right at issue was not clearly established.

On appeal, the officers and the State of Minnesota as amicus curiae contend that we

should hold that the officers did not violate Graham’s Fourth Amendment rights

because, while acting in their community caretaking function, the officers did not

need probable cause to justify seizing Graham for a mental health evaluation. We

agree with the district court’s evaluation of these issues.

At least nine of our sister circuits have held that the Fourth Amendment

requires probable cause that a person is mentally ill and dangerous to herself or

others for a seizure for an emergency mental health evaluation to be reasonable. See,

e.g., Myers v. Patterson, 819 F.3d 625, 632 (2d Cir. 2016); Cantrell v. City of

Murphy, 666 F.3d 911, 923 (5th Cir. 2012); Roberts v. Spielman, 643 F.3d 899, 905

(11th Cir. 2011); Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324,

334 (4th Cir. 2009); Meyer v. Bd. of Cty. Comm’rs of Harper Cty., 482 F.3d 1232,

1239 (10th Cir. 2007); Ahern v. O’Donnell, 109 F.3d 809, 817 (1st Cir. 1997);

Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997); Sherman v. Four Cty.

Counseling Ctr., 987 F.2d 397, 401-02 (7th Cir. 1993); Maag v. Wessler, 960 F.2d

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773, 775-76 (9th Cir. 1991) (per curiam); see also Cole v. Town of Morristown, 627

F. App’x 102, 106-07 (3d Cir. 2015) (upholding as reasonable a mental health

seizure because “the police . . . had probable cause to believe” the plaintiff “was

dangerous”); In re Barnard, 455 F.2d 1370, 1373-74 (D.C. Cir. 1971) (finding that

a plaintiff was seized within the meaning of the Fourth Amendment when taken into

custody for an involuntary mental health evaluation and explaining that such

seizures are unconstitutional “unless supported by probable cause”). These courts

have uniformly determined that “a seizure of a person for an emergency mental

health evaluation raises concerns that are closely analogous to those implicated by a

criminal arrest, and both are equally intrusive.” See Pino v. Higgs, 75 F.3d 1461,

1468 (10th Cir. 1996).

Some of these circuits have thought we were first movers in this area, pointing

to Harris v. Pirch, 677 F.2d 681 (8th Cir. 1982), while holding that the right to be

free from seizures for an emergency mental health evaluation without probable cause

of dangerousness was clearly established. See, e.g., Maag, 960 F.2d at 776. But

neither Pirch nor our later cases are so clear. In Pirch, we determined an officer was

entitled to qualified immunity after effectuating a mental health seizure, and in so

doing we commented that “when a court evaluates police conduct relating to an

arrest its guideline is good faith and probable cause.” 677 F.3d at 686 (brackets

omitted). But, because we were evaluating whether an officer complied with a

Missouri statute that used the phrase “reasonable cause,” id. at 684, we held that the

officer was immune from suit because he acted in “good faith and had reasonable

cause” to believe the plaintiff overdosed without explaining whether reasonable

cause was as rigorous a standard as probable cause, id. at 689. Compare Navarette

v. California, 572 U.S. 393, 404 (2014) (using “reasonable cause” and “reasonable

suspicion” interchangeably to justify an investigative stop), with Stacey v. Emery,

97 U.S. 642, 646 (1878) (“If there was a probable cause of seizure, there was a

reasonable cause. If there was a reasonable cause of seizure, there was a probable

cause.”).

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Since Pirch, we have never held that reasonable belief is sufficient nor that

probable cause is required to justify a mental health seizure. We have instead

suggested that reasonable belief is sufficient to justify some seizures under the

community caretaking exception while intimating that probable cause is required in

other instances. 4 Compare Winters, 254 F.3d at 764 (upholding a brief detention of

an intoxicated individual under the community caretaking exception and analogizing

the officers’ decision to “investigate” and “briefly detain” to investigative stops),

Samuelson, 455 F.3d at 874 (finding “objectively reasonable” officers’ decision to

transport the plaintiff to a hospital for evaluation due to his “incoherent” statements

after he was mistakenly arrested and in police custody for breaking into his own

garage), and Burke, 677 F.3d at 372-73 (stating that a “brief detention” based on

reasonable belief that it was necessary to secure the safety of an individual “was

lawful”), with Meehan, 763 F.3d at 943 (articulating a reasonableness balancing test

under the community caretaking exception but framing the ultimate question as one

concerning whether the facts at issue gave the officer acting “in his capacity as

community caretaker” “probable cause to arrest” the individual), and Harris, 747

F.3d at 1017 (same).

We think the through line of these cases is straightforward. As in the criminal

context of an investigative stop, when officers act in their community caretaking

capacity, they may briefly detain an individual to ensure her safety and that of the

officers or the public when the officer reasonably believes an emergency exists

Amicus Minnesota argues that we rejected the probable cause standard for

emergency mental health seizures in Collins v. Bellinghausen, 153 F.3d 591, 596

(8th Cir. 1998), but this is not so. Instead, when evaluating the plaintiff’s Fourth

Amendment claim, we held that officers acted reasonably when they entered a home

to seize a vulnerable adult that the officers “reasonably believe[d]” needed

immediate aid. Id. And, in the context of evaluating the plaintiff’s claim that the

defendants violated her Fourteenth Amendment right to due process, we stated that

the “probable cause” requirement necessary to justify the initiation of involuntary

commitment proceedings under Iowa law was “irrelevant” to our analysis of what

the Due Process Clause demands—an issue itself distinct from what the Fourth

Amendment requires. See id.

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requiring the officer’s attention. But, as with other police functions, all seizures—

whether brief detentions or arrests—made in the community caretaking context are

governed by the Fourth Amendment’s reasonableness balancing test. As a result,

the greater the intrusion on a citizen, the greater the justification required for that

intrusion to be reasonable. Thus, if the detention evolves into an arrest, it must be

justified by probable cause. This balancing test, ever attuned to the nature and

quality of the intrusion, comports with the Supreme Court’s instruction that

reasonableness is the touchstone of the Fourth Amendment. See Smith, 820 F.3d at

360-62 (articulating a similar rule in the context of community caretaking searches).

Harris makes this point clear. There, we stated that a “seizure of a person by

a police officer acting in the officer’s noninvestigatory capacity is reasonable if the

governmental interest in the police officer’s exercise of [the officer’s] community

caretaking function, based on specific articulable facts, outweighs the individual’s

interest in being free from arbitrary government interference.” Harris, 747 F.3d at

1017 (internal quotation marks omitted). But we also explained that even when an

officer is operating in a community caretaking capacity, “[t]he scope of [an]

encounter must be carefully tailored to satisfy the purpose of the initial detention,

and the police must allow the person to proceed once the officer has completed the

officer’s inquiry, unless, of course, the officer obtains further reason to justify the

stop.” Id. We continued to analyze the initial encounter and brief detention under

the standard of reasonable belief, which we analogized to the standard required for

a Terry stop, but we concluded the later arrest of the individual was reasonable

because, in the course of the encounter, the officers developed probable cause. Id.

at 1019; see also Terry v. Ohio, 392 U.S. 1, 13 (1969) (“Encounters are initiated by

the police for a wide variety of purposes, some of which are wholly unrelated to a

desire to prosecute for crime.”).

Accordingly, we now make explicit that which has long been implicit in our

caselaw and align our circuit with the unanimous consensus in all other circuits. We

conclude that only probable cause that a person poses an emergent danger—that is,

one calling for prompt action—to herself or others can tip the scales of the Fourth

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Amendment’s reasonableness balancing test in favor of the government when it

arrests an individual for a mental health evaluation because only probable cause

constitutes a sufficient “governmental interest” to outweigh a person’s “interest in

freedom.”5 See Harris, 747 F.3d at 1017; see also Dunaway v. New York, 442 U.S.

200, 208 (1979) (“The long-prevailing standards of probable cause embod[y] the

best compromise that has been found for accommodating the often opposing

interests in safeguarding citizens from rash and unreasonable interferences with

privacy and in seeking to give fair leeway for enforcing the law in the community’s

protection.” (internal quotation marks and brackets omitted)). Officers have

probable cause to arrest a person for a mental health evaluation when “the facts and

circumstances within . . . the officers’ knowledge and of which they had reasonable

trustworthy information are sufficient . . . to warrant a man of reasonable caution”

to believe that the person poses an emergent danger to himself or others. Cf.

Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010) (quoting

Brinegar v. United States, 338 U.S. 160, 175 (1949)); Cantrell, 666 F.3d at 923

(articulating a similar standard); Cloaninger, 555 F.3d at 334 (same).

Our confidence that the Fourth Amendment demands probable cause of

dangerousness to effectuate a mental health arrest in this case is reinforced by the

location of this arrest: Graham’s home. As the Supreme Court has emphasized, “the

right of a man to retreat into his own home and there be free from unreasonable

government intrusion stands at the very core of the Fourth Amendment.” Groh, 540

U.S. at 559 (internal quotation marks and brackets omitted). For this reason, the

Court has “drawn a firm line at the entrance to the house,” and “[a]bsent exigent

circumstances” and probable cause or a warrant, police may not seize a person in her

home. Payton v. New York, 445 U.S. 573, 590 (1980).

Of course, we do not mean arrest in the traditional criminal sense. Instead,

we agree with our sister circuits that taking a person into custody for an emergency

mental health evaluation “raises concerns that are closely analogous to those

implicated by a criminal arrest, and both are equally intrusive.” See Pino, 75 F.3d

at 1468.

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The officers do not contend that they had probable cause to arrest Graham

after they entered her home, and we are dubious they could support such a contention

anyway. But we need not address that issue as we conclude the officers are entitled

to qualified immunity because the probable cause standard was not clearly

established and, as a result, a reasonable officer could have believed the decision to

arrest Graham for an emergency mental health evaluation was lawful.

“To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent.” See District of Columbia v. Wesby, 583 U.S.

---, 138 S. Ct. 577, 589 (2018). This generally requires a plaintiff to “point to

existing circuit precedent that involves sufficiently ‘similar facts’ to ‘squarely

govern’” the officers’ conduct in the specific circumstances at issue, see Boudoin v.

Harsson, 962 F.3d 1034, 1040 (8th Cir. 2020) (brackets omitted), or, in the absence

of binding precedent, to present “a robust consensus of cases of persuasive

authority” constituting settled law, see De La Rosa v. White, 852 F.3d 740, 745 (8th

Cir. 2017). The plaintiff has the burden to prove that a right was clearly established

at the time of the alleged violation. Wilson v. Lamp, 901 F.3d 981, 986 (8th Cir.

2018).

Here, Graham cannot point to existing Eighth Circuit precedent that clearly

establishes the probable cause standard because of the ambiguity in our caselaw

highlighted above. Indeed, in her briefing Graham conceded as much, arguing that

Pirch clearly established the standard of probable cause but noting that our caselaw

“does create confusion.” And during oral argument, Graham’s counsel specifically

asked this court to “make clear” that probable cause is required in this circuit because

“there hasn’t been a case that has directly stated what the requirement is for a mental

health hold.” A right is not clearly established by “controlling authority” merely

because it may be “suggested by then-existing precedent.” See Wesby, 138 S. Ct. at

589-90.

Neither is this an instance in which every reasonable officer would have

known his conduct was unlawful due to a robust consensus of authority from other

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circuits. Though, at the time the officers seized Graham, several other circuits had

determined that probable cause was the constitutional standard required to justify a

mental health arrest, our caselaw was not merely silent on the issue; instead, we had

created ambiguity concerning the answer, suggesting that reasonable belief might be

sufficient to satisfy the demands of the Fourth Amendment. See Lane v. Franks, 573

U.S. 228, 243-46 (2014) (concluding that an official was entitled to qualified

immunity because, although decisions from other circuits took one side of an

intracircuit debate, the intracircuit panel decisions conflicted). “No matter how

carefully a reasonable officer read” our precedent “beforehand, that officer could not

know that” the conduct at issue would violate our circuit’s “test.” See Sheehan, 135

S. Ct. at 1777. This determination is enough to resolve this issue as the officers are

entitled to qualified immunity unless the right is established “beyond debate.” See

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Finally, Graham contends that even if the probable cause standard was not

clearly established, no reasonable officer could have believed it was lawful to seize

her because the facts known to the officers after they entered her home did not

support even the lower standard of reasonable belief that she presented an emergent

danger to herself or others. We disagree. We do not think that only a “plainly

incompetent” officer could conclude he had arguable reasonable belief. See

Mullenix, 136 S. Ct. at 308; Waters v. Madson, 921 F.3d 725, 736 (8th Cir. 2019)

(explaining that even if officers lack reasonable suspicion for an investigative stop,

they are entitled to qualified immunity if they had arguable reasonable suspicion).

Reasonable belief “is a less exacting standard than probable cause,” Quezada,

448 F.3d at 1007, and, to be reasonable, an officer’s belief must be supported by

specific, articulable facts, see Sanders, 956 F.3d at 539. Here, the officers believed

Graham threatened a family member, and a second family member warned she might

fight the officers; Graham called 911 repeatedly over the previous two hours and the

operator reported that her calls were nonsensical; Graham denied calling the police

when the officers arrived; and she appeared confused as to why the officers were at

her home. Although Graham maintained that she was not a threat to herself or others,

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the officers were not required to believe her, particularly considering her agitated

state and the prior reports of threats.

Accordingly, we conclude that, at the very least, the facts known to the

officers at the time were sufficient to support arguable reasonable belief that Graham

was experiencing a mental health crisis and presented an emergent danger to herself

or others. Graham has offered no precedent that squarely governs these facts such

that, when considering the officers’ “observations as a whole,” Waters, 921 F.3d at

736, every reasonable officer would have known he lacked a reasonable belief that

Graham was an emergent danger to herself or others, see Wesby, 138 S. Ct. at 590

(explaining that, for the law to be clearly established, a reasonable officer must be

able to interpret precedent “to establish the particular rule the plaintiff seeks to

apply” and determine that such “legal principle clearly prohibit[s] the officer’s

conduct in the particular circumstances before him”).

As a result, the district court did not err in granting the officers qualified

immunity on Graham’s unreasonable seizure claim.

Graham next claims that the district court erred in granting summary judgment

to the officers on Graham’s claim of retaliatory arrest because, according to Graham,

she presented sufficient evidence of retaliatory intent to create a triable issue of fact.

We disagree.

“[T]he law is settled that as a general matter the First Amendment prohibits

government officials from subjecting an individual to retaliatory actions . . . for

speaking out.” Hoyland v. McMenomy, 869 F.3d 644, 655 (8th Cir. 2017). A

plaintiff may establish a retaliatory arrest claim by showing (1) that she engaged in

protected activity; (2) the government officials took an adverse action against her

that would chill a person of ordinary firmness from continuing in the activity; (3) the

adverse action was caused by the exercise of the protected activity; and (4) the lack

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of probable cause or arguable probable cause. Peterson v. Kopp, 754 F.3d 594, 602

(8th Cir. 2014).

To survive summary judgment, a plaintiff must show that a reasonable jury

could find that a retaliatory motive of the officers was a “but-for cause” of the

adverse action, “meaning that the adverse action against the plaintiff would not have

been taken absent the retaliatory motive.” Nieves v. Bartlett, 587 U.S. ---, 139 S. Ct.

1715, 1722 (2019) (“It is not enough to show that an official acted with a retaliatory

motive and that the plaintiff was injured—the motive must cause the injury.”). “The

causal connection is generally a jury question, but it can provide a basis for summary

judgment when the question is so free from doubt as to justify taking it from the

jury.” Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (internal quotation marks

omitted).

For instance, in Baribeau, we denied officers qualified immunity on a

plaintiff’s claim of unreasonable seizure when they arrested and detained protestors

without arguable probable cause to believe the protestors either engaged in

disorderly conduct or displayed a simulated bomb. 596 F.3d at 481. Even so, we

granted the officers summary judgment on the plaintiff’s retaliatory arrest claim

because no “reasonable jury could find that retaliatory animus was a . . . ‘but-for’

cause” of the arrests where the evidence demonstrated that the officers made the

arrest after observing a young girl become frightened by the plaintiffs’ appearance,

and because the evidence demonstrated that the decision to arrest the plaintiffs was

“based on an actual but overly exaggerated belief that the plaintiffs violated the

WMD statute.” Id.

Given the information available to the officers in this case, we likewise

conclude that no reasonable jury could conclude that retaliatory animus was a butfor cause of Graham’s arrest. As in Baribeau, there is no evidence the officers’

actions were based on anything other than “an actual but overly exaggerated belief”

that Graham was experiencing a mental health emergency and presented a threat

either to herself or to others. And though the temporal proximity of Graham’s

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protected activity and her subsequent arrest is relevant, it is not enough on its own

to create a triable issue of fact regarding cause where no other record evidence

supports finding a retaliatory motive and there is evidence that the officers acted in

good faith. See Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir. 2006) (“Temporal

proximity is relevant but not dispositive.”); see also Williams v. City of Carl

Junction, 480 F.3d 871, 877-78 (8th Cir. 2007) (holding that plaintiff had not

demonstrated retaliatory animus sufficient to support a retaliatory prosecution claim

under the First Amendment where plaintiff “presented no evidence”—other than the

traffic ticket itself—“that the officer who issued [the] citation harbored any

retaliatory animus against him”).

Thus, the district court did not err in granting the officers summary judgment

on Graham’s retaliatory arrest claim.

Graham next contends that the City’s policy concerning seizures for an

emergency mental health evaluation caused the officers to violate her Fourth

Amendment rights because the policy was facially unconstitutional. In the

alternative, Graham contends that the City should be liable because it was

deliberatively indifferent to her constitutional rights and failed to train the officers

properly. We conclude the district court did not err in granting the City summary

judgment.

“A municipality may be liable under § 1983 where ‘action pursuant to official

municipal policy of some nature caused a constitutional tort.’” Hollingsworth v. City

of St. Ann, 800 F.3d 985, 991-92 (8th Cir. 2015) (quoting Monell, 436 U.S. at 691).

When a city’s policy is facially unconstitutional, we have recognized that “resolving

[the] issues of fault and causation is straightforward.” Szabla v. City of Brooklyn

Park, 486 F.3d 385, 389-90 (8th Cir. 2007). In that instance, “[t]o establish a

constitutional violation, no evidence is needed other than a statement of the

municipal policy and its exercise.” Id.

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The relevant portion of the MCCTA provides that an officer may seize a

person for an emergency mental health evaluation and transport that person to “a

licensed physician or treatment facility if the officer has reason to believe . . . that

the person is mentally ill . . . and in danger of injuring self or others if not

immediately detained.” Minn. Stat. § 253B.05, subd. 2(a) (emphasis added). In

compliance with the statute, the City’s policy allows an officer to take a person with

mental illness into custody “if there is a reason to believe the person poses a threat

to himself or others.” The policy further directs that “[t]he threat does not have to

be imminent.”

The district court initially denied the City summary judgment, determining

that the phrase “reason to believe” was inconsistent with the Fourth Amendment’s

probable cause requirement for a mental health seizure. After the City filed a motion

for reconsideration, the district court determined that it had “made a manifest error

of law” by failing to construe the phrase “reason to believe” to require probable

cause.

We agree that the policy is not “facially unconstitutional.” First, “reason to

believe” is commonly used to mean probable cause. For instance, in United States

v. Quintana, we analyzed the meaning of the phrase “reason to believe” in a federal

immigration statute relating to arrests of undocumented aliens and concluded that

the phrase means “constitutionally required probable cause.” 623 F.3d 1237, 1239

(8th Cir. 2010); see also United States v. Stead, 422 F.2d 183, 184 n.1 (8th Cir. 1970)

(per curiam) (“Probable cause exists since a prudent man would have had reason to

believe that this defendant had committed a felony.”). Other circuits have come to

similar conclusions when interpreting statutes governing mental health seizures. In

Cantrell, for example, the Fifth Circuit interpreted the Texas Health and Safety

Code’s use of “reason to believe” to require probable cause. 666 F.3d at 923.

Second, we do not believe the policy’s language that the threat presented

“does not have to be imminent” makes the policy facially unconstitutional. To be

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sure, a mental health seizure must be justified by probable cause that the person

subject to the arrest presents an emergent threat of harm to herself or others, but we

do not think—nor have we held—that government officials must wait to intervene

until an individual is a split second away from harming herself or others. See Meyers

v. Comm’r of Soc. Sec. Admin., 801 F. App’x 90, 95 (4th Cir. 2020) (per curiam)

(“‘Imminent’ means ‘threatening to occur immediately; dangerously impending’ or

‘[a]bout to take place.’” (quoting Black’s Law Dictionary (11th ed. 2019)); United

States v. Hardeman, 449 F. App’x 408, 410 (5th Cir. 2011) (per curiam) (defining

imminent as “impending; on the point of happening”). The Fourth Amendment does

not demand police wait until a suicidal citizen has raised a gun to her temple before

officers may intervene. Instead, the emergency required is only that a prudent person

would have reason to believe the individual subject to the seizure presents a threat

to herself or others such that an order of a court or other authority cannot be obtained

in time to prevent the anticipated harm or injury. See Michigan v. Tyler, 436 U.S.

499, 509 (1978) (explaining that police may rely on the exigent circumstances or

emergency aid exception when “there is compelling need for official action and no

time to secure a warrant”). As a result, the policy is not facially unconstitutional

because it does “not affirmatively sanction” an unconstitutional action. Szabla, 486

F.3d at 392.

Where an official policy is lawful on its face, a plaintiff may establish liability

by showing that a municipality caused the constitutional violation by providing

“inadequate training” for its employees. Parrish v. Ball, 594 F.3d 993, 997 (8th Cir.

2010). To establish liability, a plaintiff must show that (1) the City’s “training

practices [were] inadequate”; (2) the City was “deliberately indifferent” to her rights

when adopting the training practices such that the “failure to train reflects a

deliberate or conscious choice”; and (3) the plaintiff’s injury was “actually caused”

by the “alleged deficiency” in the training practices. Id.

Graham has not met this standard for two reasons. First, she advances no

evidence concerning other mental health seizures, so she has not shown a history of

the City’s officers committing unreasonable seizures such that the need for

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additional training was plain. See Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520

U.S. 397, 407-08 (1997). The Supreme Court has held that a “pattern of similar

constitutional violations” is “ordinarily necessary” to establish municipal

liability, Connick v. Thompson, 563 U.S. 51, 62 (2011), unless “the need for more

or different training is so obvious and the inadequacy [is] so likely to result in the

violation of constitutional rights” that the municipality can be said to have been

“deliberatively indifferent to the need,” City of Canton v. Harris, 489 U.S. 378, 390

(1989). Here, there is no evidence of past violations, and what happened to Graham

is not “so obviously” the consequence of a systemic lack of training, as opposed to

the decisions of individual officers, that the need for different or additional training

was plain. See Dick v. Watonwan Cty., 738 F.2d 939, 942 (8th Cir. 1984) (noting

that an “isolated incident” is “not enough to establish a policy or custom.”).

Second, “the lack of clarity in the law” concerning the appropriate standard of

cause needed to justify a mental health hold “precludes a finding that the

municipality had an unconstitutional policy at all, because its policymakers cannot

properly be said to have exhibited a policy of deliberate indifference to

constitutional rights that were not clearly established.” Szabla, 486 F.3d at 394; see

also Hollingsworth, 800 F.3d at 992 (“While a single constitutional violation arising

out of a lack of safeguards or training may be sufficient to establish deliberate

indifference where the need for such safeguards or training is obvious, a

municipality cannot exhibit fault rising to the level of deliberate indifference to a

constitutional right when that right has not yet been clearly established.” (internal

quotation marks omitted)). In other words, because the right at issue was not clearly

established, Graham cannot meet the “demand that deliberate indifference in fact be

deliberate.” Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 995 (6th Cir.

2017) (discussing and adopting the Eighth Circuit’s approach).

Accordingly, the district court correctly entered summary judgment in favor

of the City on Graham’s Monell claim.

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III.

Finally, Graham contends that the district court improperly granted summary

judgment to the officers on her state-law claims of false imprisonment, battery,

assault, and negligence because it erroneously concluded they were entitled to

statutory and official immunity. The district court did not err.

The MCCTA includes a statute-specific immunity section that provides:

All persons acting in good faith, upon either actual knowledge or

information thought by them to be reliable, who act pursuant to any

provision of this chapter or who procedurally or physically assist in the

commitment of any individual, pursuant to this chapter, are not subject

to any civil or criminal liability under this chapter.

Minn. Stat. § 253B.23, subd. 4. Thus, all persons who in good faith participate in

the civil commitment process, including by seizing someone for an emergency

mental health evaluation, are immune from any civil or criminal liability, regardless

of whether the detained person is actually committed. Losen v. Allina Health Sys.,

767 N.W.2d 703, 709 (Minn. Ct. App. 2009) (holding that the MCCTA

“encompasses the good-faith decision whether to place an emergency hold on a

proposed patient, even if the result of that decision is that no hold is placed”). The

grant of immunity provides complete immunity from suit. Dokman v. County of

Hennepin, 637 N.W.2d 286, 297 (Minn. Ct. App. 2001).

Just as Graham has not demonstrated a triable issue of fact as to whether the

officers had the requisite retaliatory animus to support her First Amendment

retaliatory arrest claim, she has not shown a triable issue of fact regarding the goodfaith belief of the officers when they seized her for a mental health evaluation. See

supra Section II.C. She simply advances no evidence that the officers acted in bad

faith. They are thus entitled to statutory immunity.

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For similar reasons, the officers are also entitled to official immunity. Under

Minnesota law, a public official is entitled to official immunity when his conduct

requires the exercise of discretion or judgment and there is no evidence that he acted

maliciously or in bad faith. Johnson v. Morris, 453 N.W.2d 31, 41 (Minn. 1990);

Elwood v. Rice Cty., 423 N.W.2d 671, 679 (Minn. 1988). “In determining whether

an official has committed a malicious wrong, we consider whether the official has

intentionally committed an act that he or she had reason to believe is prohibited.”

Hassan v. City of Minneapolis, 489 F.3d 914, 920 (8th Cir. 2007). Here, the officers

could not have acted in a manner that they believed to be unlawful when seizing

Graham because, as discussed above, the law was not clearly established. See id.

IV.

For the foregoing reasons, we affirm.

__________________________

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APPENDIX 24A

Date Filed: 08/17/2020 Entry ID: 4945774

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 19-2512

Teresa M. Graham

Appellant

Sgt. Shannon L. Barnette, et al.

Appellees

-----------------------------State of Minnesota

Amicus Curiae

______________________________________________________________________________

Appeal from U.S. District Court for the District of Minnesota

(0:17-cv-02920-JNE)

______________________________________________________________________________

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

Judge Stras did not participate in the consideration or decision of this matter.

September 29, 2020

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

____________________________________

/s/ Michael E. Gans

APPENDIX 25A

Appellate Case: 19-2512

Page: 1

Date Filed: 09/29/2020 Entry ID: 4960477

CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 1 of 30

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Teresa M. Graham,

Plaintiff,

Case No. 17-cv-2920 (JNE/SER)

ORDER

Sgt. Shannon L. Barnette,

Officer Amanda Sanchez,

Officer Mohamed Noor,

and the City of Minneapolis,

Defendants.

Defendant police officers entered Plaintiff Teresa Graham’s home and seized

Graham so that she could be transported to the hospital for an involuntary mental health

evaluation. Plaintiff filed this suit alleging constitutional violations under 42 U.S.C. §

1983 and bringing state law claims. Citing qualified, official, and statutory immunities,

Defendant police officers and the City of Minneapolis moved for summary judgment.

For the reasons set forth below, the Court grants in part and denies in part

Defendants’ summary judgment motion. First, the Court finds that the officers are

protected by qualified, statutory, and official immunities. Second, the Court sides with

the weight of federal authority and concludes that seizures in the mental health context

require probable cause. Third, the Court determines that the City of Minneapolis’ policy

on transport holds is facially invalid and that a reasonable juror could find that the

officers implemented this unconstitutional policy when they seized Graham without

probable cause. As a result, the motion is denied with respect to Count 5, which alleges

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that the City of Minneapolis deprived Graham of her Fourth Amendment seizure rights

by maintaining an unlawful transport hold policy. The motion is granted in all other

respects.

BACKGROUND

Around 10 a.m. on May 25, 2017, Teresa Graham called 911 and reported that a

man was smoking marijuana on a retaining wall behind her home. A police officer

arrived at Graham’s address, saw no one, and did not follow up with Graham about her

report. Several hours later, Graham called the Fifth Precinct and left a voicemail for the

Precinct’s commander, Inspector Kathy Waite. 1 In the voicemail, Graham complained

that officers did not respond to her call that morning. Graham also referenced an email

she had sent earlier in the day to Inspector Waite, Minneapolis Mayor Betsy Hodges, and

other local government officials about the Minneapolis police department’s failure to

respond to a “vulnerable adult report” Graham had made previously concerning her

disabled brother. Around 6 p.m., Lieutenant Dan May returned Graham’s call to inform

her that an officer had investigated Graham’s report of the man in her backyard earlier

that day.

At 6:11 p.m., Graham’s cousin called 911 and reported that Graham called him at

work and threatened him and his family. Incident Detail Report No. 17-191155, ECF No.

95, Carter Decl., Ex. 2. The 911 call taker summarized the call for the responding

officers in a comment to the Incident Detail Report: “CLRS COUSIN WHO JUST

Graham explained that she had Inspector Waite’s direct number because she had

previously contacted her about other issues involving the Minneapolis police.

APPENDIX 27A

CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 3 of 30

CALLED HIM AT WORK AND THREATENED HIM AND HIS FAMILY.” Id. The

Incident Detail Report reflects comments entered by 911 call takers, police dispatchers,

and the responding officers about an ongoing incident. The call taker also noted that

Graham’s cousin requested a welfare check on Graham and that Graham’s mental health

diagnosis was unknown.

At 8:14 p.m., Officers Noor and Sanchez arrived at Graham’s home to conduct a

welfare check. Sanchez recorded the encounter with her body camera. When Graham

answered the door, the officers explained that they were responding to a complaint that

she had threatened a family member. Graham grew agitated, demanded to know who

made the report, complained that she was being slandered and harassed, and asked the

officers to leave. After leaving Graham’s home, the officers reported that they were

asked to leave before they were able to check Graham’s welfare, but that she appeared

“AOK.” Incident Detail Report No. 17-191155, ECF No. 95, Carter Decl., Ex. 2.

At 9:05 p.m., a 911 call taker reported that Graham had called 911 three more

times since the welfare check. Incident Detail Report No. 17-191393, ECF No. 95,

Carter Decl., Ex. 14. Graham first called 911 at 8:20 p.m. to complain about the officers

harassing her in retaliation for reporting a crime. The call taker described Graham during

her first call as agitated, aggressive, and not making sense. Approximately fifteen

minutes later, Sergeant Shannon Barnette returned Graham’s call and the two spoke

briefly about Graham’s concerns. At 8:40 p.m., Graham called 911, asking to be

APPENDIX 28A

CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 4 of 30

transferred to the Edina police department. Twenty minutes later, Graham again called

911 and requested to be transferred to the Edina police department.

Sergeant Barnette had previously interacted with Graham and was aware of “some

mental health history.” Barnette Dep., ECF No. 95, Carter Decl., Ex. 12. Graham called

the Fifth Precinct a year or two earlier to request an investigation into her sister’s death at

Abbott Northwestern Hospital. Barnette worried about Graham’s mental state since she

accused medical personnel of covering up the circumstances of her sister’s death.

Around this time, Inspector Waite informed Barnette that Graham had a mental health

history and had been subject to harassment restraining orders that were sought by

Hennepin County government employees. Barnette did not remember specifics.

Relying on the officers’ interactions with Graham described above, Barnette

directed 2 Noor and Sanchez to place Graham in custody to transport her for an

emergency mental health evaluation under Minnesota’s Civil Commitment and

Treatment Act (“MCTA”). At 9:05:53 p.m., dispatch reported: “PER SGT BARNETTE .

The timing of Barnette’s decision to place Graham in custody is disputed. Barnette

stated that although she directed the officers to check on Graham at her home and

possibly place Graham in custody, she did not make the decision to seize Graham until at

Graham’s home. Graham disputes Barnette’s claim given (1) the comments in the

Incident Detail Report, (2) Barnette’s concession that she approved a police report stating

that Barnette ordered the hold before arriving at Graham’s home and (3) Barnette’s

concession that an ambulance was ordered before arriving at the home. For these

reasons, the Court finds that, when viewing the record in the light most favorable to the

plaintiff, a reasonable factfinder could find that Barnette directed the officers to place

Graham in custody prior to arriving at Graham’s home. See Gosney v. Reliable Life Ins.

Co., 293 F.3d 1052, 1053 (8th Cir. 2002). Nevertheless, the Court’s “reasonableness

inquiry extends . . . to those facts known to the officer at the precise moment the officers

effectuate the seizure.” Schulz v. Long, 44 F.3d 643, 648 (8th Cir. 1995).

APPENDIX 29A

CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 5 of 30

. . OFCRS TO SIGN A HEALTH AND WELFARE HOLD ON THIS SUBJECT.”

Incident Detail Report No. 17-191393, ECF No. 95, Carter Decl., Ex. 14. A similar entry

was made at 9:06:11: “OFCRS TO SIGN HEALTHWELFARE HOLD PER 502,” which

is Barnette’s squad. Id.

Under the MCTA, an officer may place a person in custody under a health and

welfare hold and transport that person to “a licensed physician or treatment facility if the

officer has reason to believe . . . that the person is mentally ill . . . and in danger of

injuring self or others if not immediately detained.” Minn. Stat. § 253B.05 Subd. 2(a)

(2017). The Minneapolis police department (“MPD”) policy on transport holds

summarizes the authorizing statute. The policy allows an officer to take a person with

mental illness into custody “if there is a reason to believe the person poses a threat to

himself or others.” 7-1005 Transport Holds Policy, ECF No. 133, Kushner Decl., Ex. D.

The policy further directs that “[t]he threat does not have to be imminent.” Id.

At 9:06:49 p.m., dispatch informed the officers that one of Graham’s family

members had called to warn the Edina police department that Graham may fight with the

police. Id. Subsequently, dispatch reported that Barnette would support Noor and

Sanchez at Graham’s home. Id.

Around 9:40 p.m., Barnette, Noor, and Sanchez arrived at Graham’s home.

Before arriving, the officers reviewed the above-referenced Incident Detail Reports. All

officers wore body cameras that recorded the encounter. Graham opened the interior door

and left the storm door locked and shut. Graham told the officers that she did not call

APPENDIX 30A

CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 6 of 30

them for help, angrily demanded that the officers leave her property, and slammed the

door. The officers described Graham as agitated, argumentative, and uncooperative.

Barnette removed the screen from the storm door to allow entry should Graham

reopen the interior door. The officers told Graham that they would leave if she opened

the door and allowed them to make sure that she was okay. Through the door, Graham

told the officers that she was fine. Graham then called 911 to complain about the officers

at her front door.

Eventually, Graham opened the interior door to her home. Barnette and Noor

entered the home through the screenless front door and held Graham by each arm in an

escort hold for about six minutes. Graham repeatedly told the officers that the hold was

causing pain to pre-existing injuries in her left shoulder and wrist. The officers directed

Graham to sit in a chair and released her arms when she complied. During the encounter,

Graham did not physically resist or threaten harm, but she did criticize, insult, swear at,

and threaten to sue the officers.

The paramedics arrived and escorted Graham to the ambulance. Once Graham

was in the ambulance, Officer Sanchez completed the emergency transport hold

application required by the MCTA 3 and provided the form to the paramedics. The

officers listed the following reason to take Graham into custody: “Female continuously

called 911 and per dispatchers female was verbally agitated and not making sense. [P]er

“The peace or health officer shall make written application for admission of the person

to the treatment facility. The application shall contain the peace or health officer’s

statement specifying the reasons for and circumstances under which the person was taken

into custody.” Minn. Stat. § 253B.05 Subd. 2(a).

APPENDIX 31A

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[Barnette], a hold was placed[d] on the female.” Emergency Hold Application, ECF No.

133, Kushner Decl., Ex. B. Graham was then transported to Southdale Fairview Hospital

and released after being examined by a doctor.

DISCUSSION

Summary judgment is proper “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A genuine dispute exists “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). To support an assertion that a fact cannot be or is genuinely

disputed, a party must cite “to particular parts of materials in the record,” show “that the

materials cited do not establish the absence or presence of a genuine dispute,” or show

“that an adverse party cannot produce admissible evidence to support the fact.” Fed. R.

Civ. P. 56(c)(1)(A)-(B). In determining whether summary judgment is appropriate, a

court views the record and all justifiable inferences in favor of the non-movant. Liberty

Lobby, 477 U.S. at 255.

Defendants have moved for summary judgment on qualified immunity and related

grounds. Discussed below are Graham’s § 1983 claims against Sergeant Barnette and

Officers Noor and Sanchez, her § 1983 claims against the City of Minneapolis, and her

state law claims against all Defendants.

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Section 1983 Claims Against the Officers

“On summary judgment, a defendant official is entitled to qualified immunity

unless ‘(1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the

deprivation of a constitutional or statutory right; and (2) the right was clearly established

at the time of the deprivation.’” Walton v. Dawson, 752 F.3d 1109, 1116 (8th Cir. 2014)

(quoting Howard v. Kan. City Police Dep’t, 570 F.3d 984, 988 (8th Cir. 2009)). “District

courts may consider these two questions in any order.” Id. (citing Pearson v. Callahan,

555 U.S. 223, 236 (2009)). Where the law is not clearly established, courts may grant

qualified immunity on that basis “without resolving the often more difficult question

whether the purported right exists at all.” Reichle v. Howards, 566 U.S. 658, 664 (2012).

“To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent.” District of Columbia v. Wesby, 138 S. Ct. 577,

589 (2018). It is not enough for the legal principle to be “suggested by then-existing

precedent.” Id. It must be settled law dictated by “‘controlling authority’ or ‘a robust

consensus of cases of persuasive authority.’” Id. at 589-90 (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741-42 (2011)). Consequently, a reasonable officer should be able to

interpret this precedent “to establish the particular rule the plaintiff seeks to apply.” Id. at

590.

The “clearly established” standard also requires “that the legal principle clearly

prohibit the officer’s conduct in the particular circumstances before him.” Id. The

“‘specificity’ of the rule is ‘especially important in the Fourth Amendment context.’” Id.

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(quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)). The Supreme Court

has repeatedly stressed that courts should not “define clearly established law at a high

level of generality, since doing so avoids the crucial question whether the official acted

reasonably in the particular circumstances that he or she faced.” Id. (quoting Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014)). Accordingly, courts should “identify a case

where an officer acting under similar circumstances as [Defendant officers] was held to

have violated the Fourth Amendment.” Johnson v. City of Minneapolis, 901 F.3d 963,

971 (8th Cir. 2018) (quoting White v. Pauly, 137 S. Ct. 548, 552 (2017)). While the case

need not be “‘directly on point,’ existing precedent must place the lawfulness . . . ‘beyond

debate.’” Wesby, 138 S. Ct. at 590 (quoting al-Kidd, 563 U.S. at 741).

Graham alleges several constitutional violations. Graham asserts several claims

under the Fourth Amendment against the officers: (1) they entered her home without

exigent circumstances; (2) they lacked probable cause to seize her for a mental health

evaluation; and (3) they used excessive force in the process. Graham also claims that the

officers violated her Fourteenth and Fourth Amendment rights when they forced their

entry and damaged her front door. Additionally, Graham alleges that the officers

conspired to violate her Fourth Amendment rights. Finally, Graham claims that the

officers retaliated against her exercise of her free speech right to complain about police

actions.

The officers assert that they are entitled to qualified immunity on all claims.

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Warrantless Entry

Graham claims that the officers’ warrantless entry into her home violated her

Fourth Amendment rights. Warrantless entry into the home without consent or exigent

circumstances is presumptively unreasonable. Groh v. Ramirez, 540 U.S. 551, 559

(2004). The “emergency aid” and “community caretaking” exceptions are two such

exigent circumstances. These exceptions are “similar in nature, but not identical.” Burke

v. Sullivan, 677 F.3d 367, 371 (8th Cir. 2012). Under the “emergency aid” exception,

officers may enter a home without a warrant when they have an “objectively reasonable

basis for believing . . . that a person within the house is in need of immediate aid.”

United States v. Quarterman, 877 F.3d 794, 797 (8th Cir. 2017) (quoting Michigan v.

Fisher, 558 U.S. 45, 47 (2009) (per curiam)). Under the “community caretaking”

exception, police officers perform community caretaking functions “to ensure the safety

of the public and/or individual, regardless of any suspected criminal activity.” Winters v.

Adams, 254 F.3d 758, 763 (8th Cir. 2001). As community caretakers, officers may enter

a home without a warrant when “the officer has a reasonable belief that an emergency

exists requiring his or her attention.” United States v. Quezada, 448 F.3d 1005, 1007 (8th

Cir. 2006). The reasonable belief standard “is a less exacting standard than probable

cause.” Burke, 677 F.3d at 371.

Although Graham argues that the emergency aid exception applies to the officers’

entry into her home, the Court finds that the community caretaking standard is

appropriate since the officers entered the home on a welfare check. In Burke, the Eighth

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Circuit applied the community caretaking exception to an officer’s welfare check in the

home. 4 Id. at 371-72. The Eighth Circuit found that an emergency requiring the officers’

entry existed when the resident, who was “home alone with a violent suspect,” did not

respond after the officers attempted to contact her. 677 F.3d at 372. Similarly, the

emergency in Quezada involved facts that would lead a reasonable officer to conclude

that “someone was inside but was unable to respond for some reason.” 448 F.3d at 1008.

Defendants contend that a mental health emergency justifies entry into the home.

For example, in Van Raden v. Larsen, the court held that officers could enter the home to

check on the welfare of a suicidal male, pursuant to their community caretaking function.

No. CIV. 13-2283, 2015 WL 853592, at *1, *4 (D. Minn. Feb. 26, 2015). Defendants

also cite Winters for the proposition that the community caretaking function includes

acting out of concern for someone’s mental condition. 254 F.3d at 760-63.

The community caretaking cases discussed above do not address whether

Graham’s conduct justifies entry into her home. In Winters, the officers observed a man

acting erratically in his car—not in his home. Id. And although Burke, Quezada, and

Van Raden did involve officers entering a home, these cases are distinguishable. This is

not a case where officers believed someone in the home was unable to respond; Graham

opened the door and told the officers to leave. There was no suicidal report; Graham did

not threaten to harm herself. These differences are notable since the Supreme Court

The Supreme Court has only applied the community caretaking doctrine to searches of

automobiles. See Colorado v. Bertine, 479 U.S. 367 (1987); South Dakota v.

Opperman, 428 U.S. 364 (1976); Cady v. Dombrowski, 413 U.S. 433 (1973).

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generally affords heightened protection to the sanctity of the home. See Payton v. New

York, 445 U.S. 573, 585 (1980) (“[T]he physical entry of the home is the chief evil

against which the wording of the Fourth Amendment is directed.”). Because of these

distinctions, it would not have been clear beyond peradventure that the facts of the

present case justified the officers’ warrantless entry into Graham’s home.

“Officials are not liable for bad guesses in gray areas; they are liable for

transgressing bright lines.” Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (quoting

Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). Because of the dearth of

community caretaking cases, there are few bright lines and officers should not be faulted

for guessing. Here, the officers believed a mental health emergency existed because: (1)

Graham had recently threatened her cousin on the phone; (2) Graham had repeatedly

called 911 and appeared argumentative, agitated, and uncooperative; (3) Graham had a

history of restraining orders; and (4) Graham’s family member warned the police

department that she may fight with officers. Given these facts, Eighth Circuit precedent

does not clearly establish—or even consider—whether an emergency existed that

required officers to enter her home. Accordingly, the officers are entitled to qualified

immunity on Graham’s warrantless entry claim.

Seizure for Mental Health Evaluation

Graham argues that the officers did not have probable cause to seize her for a

mental health evaluation.

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Clearly Established Right

The parties disagree as to what evidentiary standard is constitutionally required for

seizures in the mental health context. Because no clear standard applies to mental health

seizures in the Eighth Circuit, the law is not clearly established.

Nine circuits have held that the Fourth Amendment requires an officer to have

probable cause that the person seized is in danger of harming herself or others when

detaining a person for emergency mental health evaluations. 5 In 1992, the Fourth Circuit

determined that “the general right to be free from seizure unless probable cause exists

was clearly established in the mental health seizure context.” Gooden v. Howard Cty.,

954 F.2d 960, 968 (4th Cir. 1992) (collecting cases). For support, this decision looked to

an Eighth Circuit case, Harris v. Pirch, 677 F.2d 681 (8th Cir. 1982). However, the

standard used in Pirch is less explicit. In Pirch, an officer seized the plaintiff at her home

under the emergency provision of Missouri’s civil commitment statute and the court held

that the officer “had reasonable cause to believe that [plaintiff] had attempted to

overdose.” Id. at 686.

See, e.g., Myers v. Patterson, 819 F.3d 625, 632 (2nd Cir. 2016) (requiring probable

cause to seize a person for an emergency mental health evaluation); Cantrell v. City of

Murphy, 666 F.3d 911, 923 (5th Cir. 2012) (same); Roberts v. Spielman, 643 F.3d 899,

905 (11th Cir. 2011) (same); Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555

F.3d 324, 334 (4th Cir. 2009) (same); Meyer v. Bd. of Cty. Comm’rs of Harper Cty.,

Okla., 482 F.3d 1232, 1239 (10th Cir. 2007) (same); Ahern v. O’Donnell, 109 F.3d 809,

817 (1st Cir. 1997) (same); Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997)

(same); Sherman v. Four Cty. Counseling Ctr., 987 F.2d 397, 401-02 (7th Cir. 1993)

(same); Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir. 1991) (same).

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Defendants contend that the Court should instead apply the community caretaking

doctrine to the officers’ seizure. In Samuelson v. City of New Ulm, 455 F.3d 871, 877

(8th Cir. 2006), the court applied the community caretaking doctrine to a seizure. The

court used the following reasonable belief standard:

Whether the seizure of a person by a police officer acting in his or her

noninvestigatory capacity is reasonable depends on whether it is based on

specific articulable facts and requires a reviewing court to balance the

governmental interest in the police officer’s exercise of his or her

“community caretaking function” and the individual’s interest in being free

from arbitrary government interference.

Id. In Samuelson, the officers “acted reasonably” when they decided to transport

Samuelson, who was in the back of their police car, to the hospital for a mental health

evaluation because they believed he was hallucinating. Id. at 874. The reasonable belief

standard “is a less exacting standard than probable cause.” Burke, 677 F.3d at 371.

For a legal principle to be clearly established, it must be a rule that “every

reasonable official would know.” Wesby, 138 S. Ct. at 590. Moreover, “precedent must

be clear enough that every reasonable official would interpret it to establish the particular

rule the plaintiff seeks to apply.” Id. Eighth Circuit precedent does not clearly establish

a standard that every reasonable officer would know. Even if this Court finds Harris

controlling, 6 it is unclear whether the “reasonable cause” standard is closer to the

reasonable belief standard applied in Samuelson or the probable cause standard applied

by other circuits. An officer should not be expected to interpret these conflicting

“[W]hen faced with conflicting panel opinions, the earliest opinion must be followed ‘as

it should have controlled the subsequent panels that created the conflict.’” Mader v.

United States, 654 F.3d 794, 800 (8th Cir. 2011).

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opinions to clearly establish a rule requiring probable cause that the person seized is in

danger of harming herself or others. Thus, the law is not clearly established, and the

officers are entitled to qualified immunity on this claim.

Deprivation of a Constitutional Right

Although Eighth Circuit law is not clearly established, nine other circuits apply the

Fourth Amendment probable cause standard to seizures in the mental health context. The

Fourth Amendment guarantees “[t]he right of the people to be secure in their persons . . .

against unreasonable searches and seizures.” U.S. Const. amend. IV. These circuit

courts have analogized mental health seizures to a criminal arrest. See e.g., Ahern v.

O’Donnell, 109 F.3d 809, 817 (1st Cir. 1997) (collecting cases). Because an involuntary

hospitalization is no less a loss of liberty than an arrest, these courts have concluded that

seizures in the mental health context must therefore be supported by probable cause. Id.

The Court sides with the weight of federal authority in concluding that the

protection of probable cause adheres whether the seizure is for purposes of law

enforcement or due to an individual’s mental illness. The Court agrees with the Tenth

Circuit’s reasoning that:

A person suspected of mental illness possesses a right to liberty and a right

to freedom from unfounded charges of mental infirmity. Because a seizure

of a person for an emergency mental health evaluation raises concerns that

are closely analogous to those implicated by a criminal arrest, and both are

equally intrusive . . . the ‘probable cause’ standard applies here . . . .

Pino v. Higgs, 75 F.3d 1461, 1468 (10th Cir. 1996).

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Defendants urge the Court to apply the community caretaking standard of

“reasonable belief.” However, this lower standard would undermine constitutional

protections guaranteed by the Fourth Amendment. Defendants provide no persuasive

reason to deviate from the guidance of nine other federal circuit courts. Further

undermining Defendants’ argument, federal courts have even required probable cause in

the community caretaking context. See, e.g., Cloaninger ex rel. Cloaninger v. McDevitt,

555 F.3d 324, 334 (4th Cir. 2009) (involving officer’s “welfare check” at residence after

a doctor’s 911 call reported a possible suicide attempt); Roberts v. Spielman, 643 F.3d

899, 906 (11th Cir. 2011) (involving officer’s “welfare check” at a residence after a

relative called 911 to report a possible suicide attempt).

The MPD policy on transport holds permits police officers to seize individuals

based on reasonable belief, a “less exacting standard than probable cause,” Burke, 677

F.3d at 371. However, reading the Fourth Amendment and the MCTA in tandem, an

officer must have probable cause that “the person is mentally ill . . . and in danger of

injuring self or others if not immediately detained.” Minn. Stat. § 253B.05 Subd. 2(a).

Under this provision, a substantial likelihood of physical harm must be demonstrated by

an overt act such as a recent attempt or threat to harm self or others. Matter of

McGaughey, 536 N.W.2d 621, 623 (Minn. 1995); see also Minn. Stat. § 253B.02 Subd.

13(a)(iii). Accordingly, “speculation as to whether the person may, in the future . . .

attempt or threaten to harm self or others is not sufficient to justify civil commitment.”

McGaughey, 536 N.W.2d at 623.

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The proper inquiry is whether probable cause existed at the moment Graham was

“seized” for evaluation. Beck v. Ohio, 379 U.S. 89, 91 (1964). Here, then, probable

cause existed if “the facts and circumstances within [the officers’] knowledge and of

which they had reasonably trustworthy information were sufficient to warrant a prudent

man in believing” that Graham was in danger of injuring herself or others if not

immediately detained. Cf. id. The Court concludes that there exists a genuine dispute of

fact as to whether the officers seized Graham with probable cause.

The officers were understandably concerned about Graham’s escalating agitation.

After Officers Noor and Sanchez initially checked Graham’s welfare, Graham called 911

three times in forty minutes. The 911 call taker in the first call described Graham as

agitated and aggressive. Additionally, Sergeant Barnette knew that Graham had a mental

health history and had been subject to harassment restraining orders in the past.

Moreover, the officers were informed by Graham’s family member that she may fight

with police. For these reasons, the officers went to check on Graham’s welfare a second

time.

But even if the officers acted reasonably when checking on Graham’s welfare, it

does not follow that the officers had probable cause to seize her from her home and

transport her to a hospital for a mental health evaluation. When the officers arrived at

Graham’s home, Graham’s behavior did not necessarily eliminate concerns about her

agitated mental state. Yet, her behavior did minimize concerns that Graham was in

danger of harming herself or others if not immediately detained. The MCTA requires

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CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 18 of 30

that “a substantial likelihood of physical harm exists.” McGaughey, 536 N.W.2d at 623.

In the body camera footage, Graham appeared verbally hostile towards the officers,

demanded the officers leave her property, and slammed her front door, but she did not

threaten harm or physically resist. In fact, the only threat she made was that of a lawsuit.

Agitation does not necessarily establish a likelihood of physical harm. Accordingly, a

reasonable juror could find that the officers did not have probable cause that Graham was

in danger of harming herself or others if not immediately detained.

Moreover, a reasonable juror could find that Graham’s threat to her cousin was too

speculative to justify a seizure. In Kalberer v. Palmer, the court held that the plaintiff did

not pose a danger to himself or others, relying on the magistrate judge’s conclusion that

the officer merely believed that the plaintiff “could be dangerous” given his agitated

mental state. No. CIV. 13-1665, 2014 WL 4540253, at *4 (D. Minn. July 31, 2014),

rev’d in part on other grounds, 2014 WL 4540326, at *3 (D. Minn. Sept. 11, 2014).

Speculation is not sufficient; the MCTA requires “a recent overt act, attempt or threat of

harm to self or others.” Enberg v. Bonde, 331 N.W.2d 731, 736 (Minn. 1983).

Defendants attempt to distinguish Kalberer by arguing that Graham’s threat to her cousin

and his family establishes a substantial likelihood of physical harm. But even as

Graham’s agitation escalated, she remained inside her home, which greatly diminished

the likelihood that her words—made three hours prior by phone—would lead to action.

Defendants have not pointed to any other evidence corroborating Graham’s intention or

ability to carry out this threat if not immediately detained. Given the circumstances, a

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reasonable juror could conclude that the reported threat, 7 by itself, did not establish

probable cause that Graham’s cousin was in imminent danger.

For these reasons, the Court concludes that a reasonable juror could find that the

officers seized Graham without probable cause. The Court reiterates, however, that the

officers are not faulted for simply following departmental policy, especially given the

maze of conflicting standards discussed above. Accordingly, the officers are entitled to

qualified immunity.

Excessive Force

Graham claims that the officers used excessive force. Defendants assert that they

are entitled to qualified immunity because the officers used reasonable force. Claims of

excessive force are analyzed under the Fourth Amendment and its reasonableness

standard. Graham v. Connor, 490 U.S. 386, 388 (1989). The analysis focuses on

whether the force applied is reasonable from the perspective of a reasonable officer on

the scene at the time the force was used. Chambers v. Pennycook, 641 F.3d 898, 906 (8th

Cir. 2011). The “calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments—in circumstances that

are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in

a particular situation.” Graham, 490 U.S. at 396-97. The court looks to “whether the

force used to effect a particular seizure is ‘reasonable.’” Pennycook, 641 F.3d at 906. A

The only information the officers had about the reported threat was the call taker’s

comment in the dispatch report, which stated: “CLRS COUSIN WHO JUST CALLED

HIM AT WORK AND THREATENED HIM AND HIS FAMILY.” Incident Detail

Report No. 17-191155, ECF No. 95, Carter Decl., Ex. 2.

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de minimis use of force, such as handcuffing, is insufficient to support a claim. Id.;

Hunter v. Namanny, 219 F.3d 825, 832 (8th Cir. 2000). In short, “[n]ot every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates

the Fourth Amendment.” Cook v. City of Bella Villa, 582 F.3d 840, 849 (8th Cir. 2009)

(quoting Graham, 490 U.S. at 396).

The officers’ escort hold constitutes de minimis force used to effectuate a transport

hold. Barnette and Noor each held Graham by one arm. The officers used de minimis

force to hold Graham’s arms because she was confrontational and verbally aggressive

toward the officers and the officers were warned that Graham may fight with the police.

After Graham complained that the hold was causing pain, the officers let go of Graham

and directed her to sit in a chair. No reasonable officer would have understood the use of

the escort hold to constitute excessive force given the circumstances. Thus, the officers

are entitled to qualified immunity with respect to the excessive force claim.

Property Damage

Graham alleges that the officers violated her constitutional rights when they forced

entry into her home by removing and damaging her screen door. Defendants argue that

both the Fourteenth and Fourth Amendment property damage claims are barred by the

Hudson doctrine.

The Court agrees that Graham’s Fourteenth Amendment claim is barred by the

Hudson doctrine. When challenging a property deprivation, “the claimant must either

avail himself of the remedies guaranteed by state law or prove that the available remedies

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are inadequate.” Hudson v. Palmer, 468 U.S. 517, 539 (1984). “When adequate

remedies are provided and followed, no uncompensated taking or deprivation of property

without due process can result.” Id. Accordingly, the Hudson doctrine would bar

Graham’s claim since she has not alleged that state statutes or the Minneapolis claims

process do not provide an adequate remedy for her property damage claims.

Graham contends that the Hudson doctrine does not bar Fourth Amendment

claims. 8 Even assuming this is correct, the record does not establish a seizure under the

Fourth Amendment. A Fourth Amendment seizure of property occurs when “there is

some meaningful interference with an individual’s possessory interests in that property.”

Soldal v. Cook Cty., 506 U.S. 56, 61 (1992) (quoting United States v. Jacobsen, 466 U.S.

109, 113 (1984)). In Porter v. Jewell, 453 F. App’x 934, 937 (11th Cir. 2012), the

Eleventh Circuit held that officers did not meaningfully interfere with the plaintiff’s

property interest where the damage to a door frame was “de minimis” and was repaired

within an hour. Because the “damage was only a temporary deprivation of [plaintiff’s]

possessory interests,” the court concluded that no seizure of property occurred. Id.

Here, officers did not meaningfully interfere with Graham’s property. The

officers removed the screen to effectuate their entry, but the record does not establish that

the door was damaged beyond repair or that this damage was anything more than a

temporary deprivation of her possessory interest. For this reason, there was no seizure of

Many courts do not apply the Hudson doctrine to Fourth Amendment seizure-ofproperty claims. Gilmore v. Dubuc, No. CIV. 13-1019, 2015 WL 3645846, at *1 (D.

Minn. June 10, 2015) (collecting cases).

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Graham’s property within the meaning of the Fourth Amendment. Thus, Defendants are

entitled to qualified immunity on this claim.

Conspiracy

Graham alleges that the officers conspired to deprive her of her constitutional

rights when they entered her home and seized her for an emergency mental health

evaluation. Defendant argues that this claim should be dismissed because Graham fails

to establish a violation of her clearly established rights.

The Court holds that the officers violated Graham’s Fourth Amendment seizure

rights. But even so, the conspiracy claim still fails. To prove a conspiracy claim, a

plaintiff must show: “(1) that the defendant conspired with others to deprive [her] of

constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an

overt act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff.”

White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008).

Graham cannot demonstrate the first element, which requires “evidence of specific

facts that show a ‘meeting of minds’ among conspirators.” Barstad v. Murray Cty., 420

F.3d 880, 887 (8th Cir. 2005). The record is completely absent of evidence,

circumstantial or overt, purporting to show an agreement between any officer to deprive

Graham of her constitutional rights. Thus, summary judgment is warranted on Graham’s

conspiracy claim.

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Retaliatory Arrest

Graham alleges that the officers’ entry and seizure were in retaliation for her

constitutional free speech right to complain about police actions. Defendants argue that

this claim should be dismissed since Graham’s seizure was supported by probable cause.

As discussed above, the Court holds that the officers did not have probable cause.

However, the Court dismisses this claim because the record does not show that the

officers’ decision to seize Graham was motivated by her speech.

Under Eighth Circuit precedent, there are four parts to a retaliatory arrest claim.

The plaintiff must show: (1) “he engaged in a protected activity,” (2) “the government

official took adverse action against him that would chill a person of ordinary firmness

from continuing in the activity,” (3) “the adverse action was motivated at least in part by

the exercise of the protected activity,” and (4) “lack of probable cause or arguable

probable cause.” Hoyland v. McMenomy, 869 F.3d 644, 655 (8th Cir. 2017). The third

prong requires a plaintiff to show that the retaliatory motive was a “substantial factor” or

“but-for cause” of the adverse action. Kopp, 754 F.3d at 602.

Graham claims that the “temporal proximity” of the transport hold to her

complaints about the officers indicates that the hold was “substantially motivated” by the

speech. Although “temporal proximity” is relevant to the determination, it is not

dispositive. Id. at 603. The facts viewed in the light most favorable to Graham do not

show that a retaliatory motive was a substantial factor in the seizure. There is ample

evidence in the record of the officers’ concerns that Graham was having a mental health

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emergency. A reasonable jury could not find that retaliatory animus was a substantial

factor or but-for cause of the arrest. The officers are therefore entitled to qualified

immunity on this claim.

II.

Section 1983 Claims Against the City of Minneapolis

Graham alleges, first, in Count 5, that the City of Minneapolis’ policy on transport

holds is unconstitutional and, second, in Count 6, that the City’s failure to properly train

and supervise officers on the constitutional limitations of transport holds deprived her of

her Fourth Amendment rights. Defendants seek summary judgment on Graham’s Monell

claims because she failed to establish a violation of her Fourth Amendment seizure rights.

As discussed above, the Court disagrees. Consequently, the Court concludes that the City

of Minneapolis’ policy on transport holds is facially invalid and a reasonable juror could

find that the officers implemented this unconstitutional policy when they seized Graham

without probable cause.

“A plaintiff may establish municipal liability under § 1983 by proving that his or

her constitutional rights were violated by an action pursuant to official municipal policy

or misconduct so pervasive among non-policymaking employees of the municipality as to

constitute a custom or usage with the force of law.” Ware v. Jackson Cty., 150 F.3d 873,

880 (8th Cir. 1998) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978))

(internal quotation omitted). A municipality may be sued directly if it is alleged to have

caused a constitutional tort through “a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s officers.” City of St. Louis v.

APPENDIX 49A

CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 25 of 30

Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 691). Where a city’s

policy “in and of itself” is constitutionally invalid, the Supreme Court has clarified that

“no evidence [is] needed other than a statement of the policy by the municipal

corporation, and its exercise.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 822-23

(1985) (plurality opinion). Moreover, “it requires only one application of a policy such

as this to satisfy fully Monell’s requirement that a municipal corporation be held liable

only for constitutional violations resulting from the municipality’s official policy.” Id. at

822.

Graham asserts that the MPD policy on transport holds is facially invalid for two

reasons. First, the policy permits police officers to seize a person in the mental health

context based on a reasonable belief, which is a lower standard than the constitutionally

required standard of probable cause. In relevant part, the policy allows an officer to take

a person with mental illness into custody “if there is a reason to believe the person poses

a threat to himself or others.” 7-1005 Transport Holds Policy, ECF No. 133, Kushner

Decl., Ex. D. Second, the policy states that the threat “does not have to be imminent,” 71005 Transport Holds Policy, ECF No. 133, Kushner Decl., Ex. D., which contradicts the

MCTA statutory requirement that the person be in danger of harming self or others if

“not immediately detained,” Minn. Stat. § 253B.05 Subd. 2(a).

The Court agrees that the MPD policy is unconstitutional because the reasonable

belief standard clearly contravenes the Fourth Amendment. As discussed above, federal

case law overwhelmingly establishes that probable cause is required to seize someone in

APPENDIX 50A

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the mental health context. At this time, it is not necessary for the Court to address

Graham’s second argument—that the policy violates the state statute.

To establish municipal liability under 42 U.S.C. § 1983 for the misconduct of an

employee, Graham must establish (1) a constitutional violation, and (2) that the

constitutional violation was committed pursuant to an official policy of a government

entity. Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir. 2009). The Court has already

concluded that a reasonable juror could find that the officers seized Graham without

probable cause. Given the fact that the MPD policy is facially invalid, it follows that a

reasonable juror could also find that the officers implemented this unconstitutional policy

when seizing Graham, and thus, the City of Minneapolis deprived Graham of her Fourth

Amendment rights by maintaining this unlawful policy. In short, a reasonable juror could

conclude that the MPD policy is the “moving force of the constitutional violation.”

Monell, 436 U.S. at 694. Therefore, the Court denies Defendants’ motion as to Count 5.

Alternatively, Graham argues that the City of Minneapolis failed to train

Defendant officers on the constitutional limitations of transport holds. A municipality

may be subject to Section 1983 liability for inadequately training its employees where:

(1) its training practices were inadequate; (2) it was deliberately indifferent to the rights

of others in adopting them, such that the failure to train reflects a deliberate or conscious

choice; and (3) the alleged deficiency in its training procedures caused plaintiff’s injury.

Parrish v. Ball, 594 F.3d 993, 997-98 (8th Cir. 2010).

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CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 27 of 30

Nothing in the record would enable Graham to meet “the rigorous, deliberate

indifference standard of fault.” Atkinson v. City of Mountain View, Mo., 709 F.3d 1201,

1216 (8th Cir. 2013). Graham would need to demonstrate some municipal action or

inaction, taken “with ‘deliberate indifference’ as to its known or obvious consequences.”

Bd. of Cnty. Com’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 407 (1997). Graham

does not allege that the failure to train reflects a deliberate or conscious choice to violate

constitutional rights. Thus, summary judgment is warranted and Count 6 is dismissed.

III.

State Law Claims

Third, Defendants seek summary judgment on the Minnesota state law claims.

The Defendants argue that claims of false imprisonment, battery, assault, and negligence

asserted against the officers are barred by statutory immunity under the MCTA and

official immunity.

Statutory Immunity

The MCTA includes the following statutory immunity provision:

All persons acting in good faith, upon either actual knowledge or information

thought by them to be reliable, who act pursuant to any provision of this

chapter or who procedurally or physically assist in the commitment of an

individual, pursuant to this chapter, are not subject to any civil or criminal

liability under this chapter.

Minn. Stat. § 253B.23 Subd. 4. All persons participating in the civil commitment process

in good faith are immune from any civil or criminal liability, regardless of whether the

detained person is actually committed. Id.; Losen v. Allina Health Sys., 767 N.W.2d 703,

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CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 28 of 30

709 (Minn. Ct. App. 2009) (holding that the MCTA “encompasses the good-faith

decision whether to place an emergency hold on a proposed patient, even if the result of

that decision is that no hold is placed”). The grant of immunity provides complete

immunity from suit. Dokman v. County of Hennepin, 637 N.W.2d 286, 297 (Minn. Ct.

App. 2001) (holding that police officers acting pursuant to Minn. Stat. § 253B.05 were

entitled to qualified immunity). The above analysis shows that the officers acted in good

faith and on reliable information. Thus, Defendant officers are entitled to immunity.

Official Immunity

Under Minnesota law, a public official is entitled to official immunity from state

law claims when the official’s duties require the exercise of discretion or judgment.

Johnson v. Morris, 453 N.W.2d 31, 41 (Minn. 1990). Discretionary conduct is not

protected if the act is malicious or in bad faith. Elwood v. Rice County, 423 N.W.2d 671,

679 (Minn. 1988). Graham argues that official immunity is unavailable as a defense

because the officers’ actions were not discretionary, and the officers acted with malice.

The Court disagrees.

First, generally, police officers are discretionary officials. Morris, 453 N.W.2d at

42. A discretionary duty involves “individual professional judgment.” Wiederhold v.

City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998). The officers’ decision that an

emergency existed, and that Graham was a danger to herself or others involves this kind

of judgment. See Gooden, 954 F.2d at 968 (“Certainly the concept of ‘dangerousness’

which calls on lay police to make a psychological judgment is far more elusive than the

APPENDIX 53A

CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 29 of 30

question of whether there is probable cause to believe someone has in fact committed a

crime.”).

Second, “[i]n determining whether an official has committed a malicious wrong,

we consider whether the official has intentionally committed an act that he or she had

reason to believe is prohibited.” Hassan v. City of Minneapolis, 489 F.3d 914, 920 (8th

Cir. 2007). Viewing the facts in the light most favorable to Graham, the evidence does

not show that Defendant officers acted in a way that they believed was prohibited by law.

The record shows that the officers were acting in response to a perceived mental health

emergency. Moreover, the officers could not have acted in a manner they believed to be

unlawful since, as discussed above, the law was not clearly established. Therefore, the

officers are entitled to official immunity.

Furthermore, “[v]icarious official immunity protects a governmental entity from

liability based on the acts of an employee who is entitled to official immunity.” Dokman,

637 N.W.2d at 297; see also Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn. 1992) (finding

official immunity for the municipality where the police officer received official

immunity). Because the Court concludes that the officers are entitled to official

immunity, the City of Minneapolis is entitled to vicarious official immunity.

IV.

Expert Witnesses

Defendants also seek to exclude opinions of the two expert witnesses retained by

Graham. There is no need to rely on these opinions to decide the motion for summary

APPENDIX 54A

CASE 0:17-cv-02920-JNE-SER Document 172 Filed 12/14/18 Page 30 of 30

judgment before the Court. The Court will therefore deny the motion to exclude without

prejudice and allow Defendants to renew the motion closer to trial.

CONCLUSION

Based on the files, records, and proceedings herein, and for the reasons stated above, IT

IS ORDERED THAT:

Defendants’ motion for summary judgment [ECF No. 92] is GRANTED IN PART

and DENIED IN PART as follows:

The motion is granted with respect to Counts 1-4 and 6-10 of the Complaint

and these claims are DISMISSED WITH PREJUDICE.

The motion is denied with respect to Count 5.

Defendants’ motion to exclude expert opinions [ECF No. 117] is DENIED

WITHOUT PREJUDICE.

Dated: December 14, 2018

s/ Joan N. Ericksen

JOAN N. ERICKSEN

United States District Judge

APPENDIX 55A

CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 1 of 12

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Teresa M. Graham.

Plaintiff,

Case No. l7 -cv-2920 (JNE/SER)

ORDER

Sgt. Shannon L. Barnette,

Officer Amanda Sanchez,

Officer Mohamed Noor,

and the City of Minneapolis,

Defendants.

On April lI,2}lg,the City of Minneapolis moved to reconsider the Court's denial

of Defendants' summary judgment motion with respect to Plaintiff Teresa M. Graham's

Monell claim, which alleges that the City deprived Plaintiff of her Fourth Amendment

seizure rights by maintaining an unlawful transport hold policy. The City argues that the

Court erred when it concluded that the City's transport hold policy is facially

unconstitutional. For the following reasons, the Court agrees that it made a manifest

error of law by failing to construe the phrase "reason to believe" to require probable

cause. See Bradley Timberland Res. v. Bradley Lumber Co.,7I2 F.3d 401, 407 (8th Cir.

2013)("4 motion for reconsideration 'servefs] the limited function of correcting manifest

errors of law or fact or . . . present[ing] newly discovered evidence . . ."). As a result, the

Court concludes that the Crty's transport hold policy is facially valid, and thus, Plaintiff s

remaining Mpnellclaim fails as a matter of law.

SCANNED

JUL 03 2019

APPENDIX 56A

U,S. DISTRICT COURT MPLS

CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 2 of 12

BACKGROI]ND

Since the factual background of this case is set forth in detail in the Court's

original summary judgment order, ECF No. lT2,theCourt will only restate the factual

and procedural background relevant to the City's motion for reconsideration. The

Minneapolis Police Department's transport hold policy states that"ahealth officer or

police officer may take into custody an individual believed to be mentally ill . . . if there

is a reason to believe the person poses athreatto himself or others." 7-1005 Transport

Holds Policy. This policy mirrors the Minnesota Civil Commitment and Treatment Act

("MCTA"), which permits a peace or health officer to place a person in custody if they

have "reason to believe . . . that the person is mentally ill . . . and in danger of injuring

self or others if not immediately detained." Minn. Stat. $ 2538.05 Subd. 2(a) (2017).

On summary judgment, Plaintiff argued that the City's policy on transport holds

was facially unconstitutional because it permits police officers to seize a person based on

a reasonable belief, which is a lower standard than the constitutionally required standard

of probable cause. The Court agreed. In its swnmary judgment order, this Court held

that the City policy is facially invalid "because the reasonable belief standard clearly

contravenes the Fourth Amendment." Order, ECF No. I72 at25. Consequently, this

Court denied the City's summary judgment motion with respect to Plaintiff s Monell

claim. Id. at l-2.

On April 8,2019, the City requested permission to file a motion to reconsider the

Court's ruling that the CrW's transportation hold was invalid. The Court granted the

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CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 3 of 12

City's request and ordered an accelerated briefing schedule since the jury trial was set to

begin on April 22,2019.. On April t6,20I9,the Court held a final pretrial conference.

At the hearing, the Court cancelled the trial and determined that the case called into

question the constitutionality of the MCTA because the phrase "reason to believe" in the

Crty's transport holds policy mirrors the MCTA. The Court directed Plaintiff to file a

notice of constitutional question and to serve the notice on the Minnesota State Attorney

General pursuant to Federal Rule of Civil Procedure 5.1(a). On June 13,2079, the State

of Minnesota filed a motion to appear as Amicus Curiae and the Court accepted the

State's Brief of Amicus Curiae.

On April 22,2019, Plaintiff also requested permission to file a motion to

reconsider. The Court denied Plaintiff s request but asked the parties to file supplemental

briefing on several issues: (1) whether finding for the City on its motion for

reconsideration would have any bearing on the Court's prior holding that the law was not

clqarly established; (2) whether the fact that the transport hold provision applies to both

police officers and medical professionals h.as any bearing on the appropriate

constitutional standard; and (3) if the provision requires probable cause, how a court

would determine that amedical professional complied.

LEGAL STAI\DARD

A municipality may be sued directly if it is alleged to have caused a constitutional

tort through "a policy statement, ordinance, regulation, or decision offrcially adopted and

promulgated by that body's officers." City of St. Louis v. Praprotnk, 485.U.S .lI2,I2.1

APPENDIX 58A

CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 4 of 12

(1988) (quoting Monell v. Dep't of Soc. Servs.,436 U.S. 658, 690 (1978). When a city's

policy is facially unconstitutional, the Eighth Circuit has recognizedthat "resolving [the]

issues of fault and causation is straightforward." Szabla v. City of Brooklyn Park,486

F.3d 385, 389-90 (Sth Cir. 2007) (quoting Bd. of the County Comm'rs v. Brown,520 U.S.

3g7, 404-05 (1997). "To establish a constitutional violation, no evidence is needed other

than a statement of the municipal policy and its exercise." Id. (citing City of Oklahoma

City v. Tuttle,471 U.S. 808,822-23 (1985). In contrast, where an official policy is

lawful on its face, but plaintiff argues that "a municipality should have done more to

prevent constitutional violations by its employees, a plaintiff must establish the existence

of a 'policy' by demonstrating that the inadequacies were a product of deliberate or

conscious choice by policymakers." Id. at390 (citing City of Canton v. Harris,489 U.S.

378,389 (1989)). The standard of fault is "'deliberate indifference' to constitutional

rights." Id. (citingCity of Canton,489 U.S. at 388).

APPENDIX 59A

CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 5 of 12

DISCUSSION

The Transport Hold Policy is Facially Constitutional Since it Requires

Probable Causel

The City argues that the Court erred when it found that the transport hold policy

employed a reasonable belief standard. For the following reasons, the Court agrees that it

should construe the phrase "reason to believe" in the Crty's policy and the MCTA as

requiring probable cause when applied to seizures by police officers.

Constitutional Avoidance

The City and the State of Minnesota both argue that the Court could

reasonably construe the phrase i'reason to believe" as requiring probable cause and

the Court should do so to avoid questioning the constitutionality of the policy's

authorizing statute, the MCTA, which uses the same phrase.2 The Court agrees.

The City policy mirrors the MCTA and both use the phrase "reason to believe."

Consequently, the meaning of "reason to believe" in both the City's policy and the

MCTA should be the same.

I On summary judgment, Plaintiff argued that the City's policy is facially invalid for two

reasons: (1) the policy permits mental health seizures based on reasonable belief and (2)

the policy states that the threat does not have to be imminent, which contradicts the state

statute's requirement that the person be in danger of harming self or others if "not

immediately detained," Minn. Stat. $ 2538.05 Subd. 2(a). Because Plaintiff cites no

authority establishing that an imminent harm requirement is constitutionally required, the

Court finds that this inconsistency does not make the policy facially unconstitutional.

The City did not make this argument on summary judgment. There, the City only

argued that (1) Plaintiff could produce no evidence suggesting that the City has any

policy, custom, or practice of violating federal rights and (2) Plaintiff s Monell claim

failed because the underlying constitutional claims failed.

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CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 6 of 12

Although this phrase could be fairly construed as requiring either probable

cause or reasonable belief, courts "generally avoid a construction that raises 'grave

and doubtful constitutional questions"'when "[g]iven the choice between two

reasonable constructions," A.W. by & through Doe v. Nebraska,865 F.3d 1014,

1020 n.3 (8th Cir. 2017) (quoting Union Pac. R.R. v. U.S. Dep't of Homeland Sec.,

738 F.3d 885, 892 (8th Cir. 2013)). For example, in (lnited States v. Quintana,

623 F.3d 1237 ,1239 (8th Cir. 2010), the Eighth Circuit analyzed the meaning of

the phrase "reason to believe" in a federal immigration statute relating to arrests of

illegal aliens and concluded that the phrase means "constitutionally required

probable cause" because the Fourth Amendment applies to such arrests. Applying

this reasoning, the Court therefore construes the phrase "reason to believe" in both

the MCTA and the Crty's policy to mean probable cause, which is the

constitutionally required standard for mental health seizures.

B. Whether "Reason to Believett Means "Probable Cause"

The City alternatively argues that both the Eighth Circuit and the District of

Minnesota use "reason to believe" interchangeably with, as a definition of, or as a

description of "probable cause." For support, the City cites a long list of cases,

using the phrase "reason to believe." See, e.g., United States v. Davis,867 F.3d

1021,1028 (8th CLr.2017) (probable cause supported, in part, by "reason to

believe" defendant committed crime). In response, Plaintiff argues that although

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CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 7 of 12

the phrase "reason to believe" is used as part of the probable cause analysis, this

phrase has not been employed as a substitute for probable cause.3

The Court declines to establish that, as a general rule, the phrase "reason to

believe" means probable cause. The case law cited by the City does not in any

way dispense with the rigorous probable cause standard repeatedly applied by the

Eighth Circuit.a Rather, these cases illustrate that sometimes courts use the phrase

"reason to believe," among other phrases, to describe why an officer had probable

cause. These cases, however, do not establish a rule of statutory interpretation that

the phrase "reason to believe" is a substitute for "probable cause." Moreover,

these cases are inapposite to the issue before the Court: whether a policy with the

phrase "reason to believe" and without the phrase "probable cause" should be read-

to require probable cause.

For example, in Davis, the Eighth Circuit reiterates the definition of probable

cause: "A supporting affidavit establishes probable cause to issue a search waSrant

if it 'sets forth sufficient facts to establish that there is a fair probability that

contraband or evidence of criminal activity will be found in the particular place to

be searche d."' Id. at 1027 (quoting United.States v. Bralckett, 846 F .3d 987 , 992

(8th Cir. 2017)). It is within this context that the Eighth Circuit explains that: "As

detailed in the warrant application, the officers had reason to believe that Davis

had continually sold methamphetamine for over ayear." Id. at 1028.

See, e.g., Michael v. Trevena,899 F.3d 528, 534 (8th Cir. 201 8) (quoting Amrine v.

Broola, 522F.3d 823,832 (8th Cir. 2008) ("Probable cause exists wheh the totalify of

the circumstances shows that a prudent person would believe that the arrestee has

committed a crime.").

APPENDIX 62A

CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 8 of 12

II.

The Court Declines to Reconsider its Holding that Mental Health Seizures

Require Probable Cause

Both the City and the State of Minnesota further argue that reasonable belief is the

appropriatb constitutional standard for mental health seizures.s The State contends that

the Eighth Circuit has consistently applied a lesser standard than probable cause to

seizures effectuated pursuant to a police officer's community caretaking function,

including protecting an individual or the public from harm due to an individual's mental

health issue. But this framing of the doctrine is overly simplistic. For the following

reasons, the Court disagrees that it made a manifest error of law when it concluded that

mental health seizures require probable cause.

First, the State fails to distinguish'between cases involving community caretaking

seizures and cases involving mental health seizures. The Eighth Circuit has repeatedly

applied a reasonable belief standard to seizures under the community caretaking doctrine.

See, e.g., United States v. Harris,747 F.3d 1013, 1017-18 (8th Cir.2014). For example,

the State cites Winters v. Adams,254 F.3d 758, 763-64 (8th Cir. 2001), where officers

seized "a possibly intoxicated individual" in his vehicle. Similarly, the State cites Haruis,

747 F.3dat 1015-16, where officers seized a man who was asleep on a bench in the

middle of a bus station lobby with a handgun sliding out of his pocket. These cases do

not involve mental health seizures, however, and their guidance is limited.

Although the City initially stated that it "does not ask for reconsideration of this ruling,"

ECF No. 2I4 at 1, the City later argued "that the correct standard for a mental health

seizure is the Eighth Circuit's use of the community caretaking standard as outlined in

Samuelson," ECF No.242 at 5. As discussed infra, Samuelson employed a reasonable

belief standard.

APPENDIX 63A

CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 9 of 12

Mental health seizures are different from other kinds of emergencies contemplated

by the community caretaking doctrine. As the Court explained in its initial summary

judgment order, mental health seizures result in an involuntary hospitalization, which is

no less a loss of liberty than an arrest, ECF No. 172 at15. Consequently, other circuit

courts have concluded that such seizures must be supported by probable'cause. Ahern v.

O'Donnell,109 F.3d 809, 8i7 n.5 (1st Ck.1997) (collecting'cases).

Second, the cases cited by the State do not establish that the Eighth Circuit applies

a reasonable belief standard to mental health seizures.6 For example, the State cites

Samuelson v. City of New (1tm,455 F.3d 871 (8th Cir. 2006),which this Court discussed

in its initial order. In Samuelson,the officers mistook plaintiff for an intruder,

apprehended him, and then transported him to a medical facility because he was

hallucinating. Id. at873,878. The Eighth Circuit applied the community caretaking

seizure standard to the officers' decision to transport him to the hospital against his will.

Id. at877-78.

' Both the State and the Citv assume that the reasonable belief standard outlined in

Samuelson applies to this case. But even though Samuelsonisthe most factually similar

case cited by the State and the City, the Court finds that the situation described in

The State cites Collins v. Pellinghausen,153 F.3d 591,596 (8th Cir. 1998), for the

proposition that the Eighth Circuit applied a standard akin to reasonable belief to a mental

health seizure. In Collins, the Eighth Circuit held that the state officials were entitled to

qualified immunity because "a reasonable person could have believed that Collins would

constitute a danger to [others] or herself if she were allowed to remain at liberty ." Id.

But this holding is ipapposite because the Eighth Circuit analyzed Collins's i'liberfy

interest" under the Due Process Clause of the Fciurteenth Amendment and not under the

Fourth Amendment. Id.

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CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 10 of 12

Samuelson is more akin to the community caretaking emergencies described in Winters

and Harris than the mental health seizure at issue in this case. In Samuelson, the officers

had probable cause to seize the plaintitt. Id. at876 n.1. Once the plaintiff began

hallucinating in the back of the police car, the officer decided to transport him to a

medical center "based, in part, on his professional experience, Samuelson's demeanor,

and the close proximity to the hospital." Id. at 874. Thus, the plaintiff had already been

deprived of his liberty when the officers realized that there was a mental health

emergency. In contrast, here, the officers, acting pursuant to the City's transport hold

policy and the emergency provisions of the State's civil commitment statute, removed

Graham from her home and transported her to the hospital for an emergency mental

health evaluation. Graham's loss of liberty is more directly linked to the officers'

concerns about her mental health. For these reasons, the Court is not persuaded that the

community caretaking seizure standard from Samuelson applies to these facts.

Finally, the State and the City both attack the holdingin Harris v. Pirch,677 F.2d

681 (8th Cir. 1982), another factually similar case cited by this Court in its summary

judgment order. In Pirch, an officer seized the plaintiff at her home under the emergency

. provision of Missouri's civil commitment

statute. Id. at 686. The Eighth Circuit held

.that the officer "had reasonable cause to believe that [plaintiffJ had attempted to

overdose." Id. at689. The State argues that Pirch is irrelevant to the constitutional

issues in this case as the court evaluated whether the officers had "reasonable cause"

under the Missouri commitment statute. The City argues that the holding in Pirch is

APPENDIX 65A

CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 11 of 12

based on an abrogated qualified immunity standard, which could throw its holding into

doubt.

The Court's discussi on of Pirc&, however, does not amount to a manifest error of

law. The Court agrees that the holding in Pirchis perplexing.T The Court ac'knowledged

this in its summary judgment order, noting that "the standard used in Ptrch is less

explicit" than the standard used by other circuits. ECF No. t72 at 13. Moreover, the

Court stressed that "it is unclear whether the 'reasonable cause' standard is closer to the

reasonable belief standard applied in Samuelson orthe probable cause standard applied

by other circuits." Id. at 14. That is precisely why this Court, pointing to Ptrch as an

example of confusion in the doctrine, found that the officers had qualified immunity

because Eighth Circuit law was not clearly established. This Court then looked to the

reasoning of nine other federal circuit courts to conclude that the probable cause standard

applies to mqntal health seizures by police officers.s The Court may have misread the tea

leaves, but it did not make a manifest error of law.

For this reason, the Court also disagrees'with Plaintiff that it is clearly established that

the phrase "reasonable cause" as used in Pirch is synonymous with "probable cause."

8 The Court notes that its holding is limited to the actions of police officers. Although

the MCTA and City's policy both give concurrent authority to peace and health offlcers,

it does not necessarily follow that the same constitutional standard should apply to both

groups. Where civilians make decisions about invading the constitutional rights of

others, the Supreme Court has not held them to a probable cause standard. See, e.g.,

O'Connor v. Ortega,480 U.S. 709,722-26 (1987). Moreover, in the mental health

seizure context, the First Circuit found that seizures authorized by medical professionals

were pennitted under a lower standard than probable cause, McCabe v. Life-Line

Ambulance Serv., Inc.,77 F.3d 540, 546-48 (lst Cir. 1996), even though the court later

imposed a probable cause requirement on seizures by police officers, Ahernv.

O'Donnell,709 F.3d 809, 817 (lst Cir. t997)

APPENDIX 66A

CASE 0:17-cv-02920-JNE-SER Document 253 Filed 07/03/19 Page 12 of 12

CONCLUSION

Because the Court finds that the Crty's policy is facially constitutional, Plaintiff

must establish that the constitutional violation was "a product of deliberate or conscious

choice." Szabla,486 F.3d at 390 (citing City of Canton,489 U.S. at 389). The standard

of fault is "'deliberate indifference'to constitutional rights." Id. (citingCity of Canton,

489 U.S. at 388). But, as this Court previously held on summary judgment, "[n]othing in

the record would enable Graham to meet 'the rigorous, deliberate indifference standard of

fault."' ECF No. I72 at 27 (quotingAtkinson v. City of Mountain View,709 F.3d I20I,

1216 (8th Cir.2013)). Graham has failed to establish that the City's failure to train its

officers on the constitutional limitations of transport holds reflects a deliberate

conscious choice to violate constitutional rights.

her remaining claim fails as

.Therefore,

a matter of law.

Based on the files, records, and proceedings herein, and for the reasons stated

above, IT IS ORDERED THAT:

The City's motion to reconsider IECF No. 229] the Court's December 14,2018

order IECF No. 172] is GRANTED. The Court GRANTS Defendants'

summary judgment motion with respect to Count 5 and this claim is

DISMISSED WITH PREJUDICE.

LET ruDGMENT BE ENTERED ACCORDINGLY.

Dated: July 3, 2019

s/ Joan N. Ericksen

JOAN N. ERICKSEN

United States District Judge

APPENDIX 67A

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.