Appeals court gives new life to local 'zombie' suit

  • Article by: JAMES WALSH , Star Tribune
  • Updated: February 24, 2010 - 11:03 PM

The U.S. Court of Appeals on Wednesday released a ruling in favor of a group of zombies who say they were wrongfully arrested while protesting consumerism during the 2006 Aquatennial.

Apparently, it's OK to be a zombie in Minneapolis after all.

The U.S. Court of Appeals on Wednesday released a ruling in favor of a group of zombies who say they were wrongfully arrested while protesting consumerism during the 2006 Aquatennial. The ruling reanimates the group's federal lawsuit against the city of Minneapolis and its police, seeking damages of at least $50,000 for each person arrested.

A three-judge panel of the court ruled 2-1 that police lacked probable cause to arrest the group -- seven people wearing white powder, fake blood and black around their eyes and shuffling around like zombies -- for disorderly conduct. Police do not have immunity from claims against them for making the arrest, the court ruled.

The appeals court did side with the city on two other points -- affirming the lower court's dismissal of the zombies' claims of false imprisonment and First Amendment retaliation.

Jordan Kushner, the zombie group's attorney, said that the appeals court decision is correct and cuts to the heart of the matter.

"They recognized my clients' rights in this case, that this is really an outrageous violation of free expression," he said. "They were trying to make a very thoughtful political statement and the police came up with these bogus reasons to arrest them for it and put them in jail."

Minneapolis City Attorney Susan Segal released a statement saying: "The court affirmed two of the three claims in the city's favor, and we are disappointed that a third claim was returned to the district court. We're now preparing to revisit that claim in court."

A Minneapolis police spokesman declined to comment. The decision reverses, in part, a ruling by U.S. District Judge Joan Ericksen dismissing the case in favor of the city and police.

It all began around 6 p.m. on Saturday, July 22, 2006, when the zombies -- Jessica Baribeau, Jamie Jones, Kate Kibby, Kyle Kibby, Raphi Rechitsky, Jake Sternberg and Christian Utne -- met at the Nicollet Mall light-rail station on a day of Aquatennial events. Their plan was to protest what they viewed as consumers' mindlessness by shuffling through the shopping zone dressed as zombies.

From the light-rail station, they lurched and scraped down the Nicollet Mall, carrying four bags that contained sound equipment, including an iPod, speakers and a radio transmitter. They played music and broadcast statements such as "Get your brains here."

They stumbled close to bystanders and, according to court papers, received "weird" looks from some.

Around 7 p.m., police got word of an anonymous 911 call complaining about the group's antics. Police found the group near 7th Street and Nicollet Mall, and the zombies explained what they were doing. Police told the group to turn down their music and keep their distance from bystanders.

Later, however, after officers heard a supervisor mention a violent gang from Washington state known for wearing face paint, police went back to the zombies to try to identify them. While the zombies were listening to a performance of a high school drum unit, an officer said, a young girl appeared to be frightened of them. Because most in the group did not have IDs, officers took them to a police station to be identified.

There, other officers said they were worried that the equipment in the zombies' bags might be dangerous. It wasn't. Nonetheless, all but one of the zombies were taken to the Hennepin County jail, and stayed there for two days.

The zombies filed suit, claiming their constitutional rights had been violated. But in September 2008, Judge Ericksen dismissed their claims, saying police had probable cause to arrest them for disorderly conduct. The zombies appealed.

On Wednesday, the appellate court ruled that the officers should have more narrowly defined disorderly conduct. It was not enough that the zombies were loud and may have been bothering people. Their "expressive conduct" was protected by the Constitution, the court ruled.

"I feel vindicated," Sternberg said. "We didn't do anything wrong."

There have been other zombie events in Minneapolis -- dance parties, pub crawls -- both before and after the zombies' arrest. This group said it all boils down to the right to express themselves in public.

Said Rechitsky, among those arrested: "This is transparently a case of free speech."

James Walsh • 612-673-7428

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