Two protesters from the Twin Cities Occupy movement who smoked marijuana given to them by law enforcement as part of a discredited police training program can proceed with their federal lawsuit, a judge has ruled.
U.S. District Judge John Tunheim rejected a motion to dismiss the case, observing that the two activists may have had their First and 14th Amendment rights violated. The motion was brought by law enforcement agencies who employ the officers.
Tunheim said in a memorandum filed late Monday that “in light of the clear prohibition on providing illicit drugs to citizens,” the agencies “are not entitled to the protection of qualified immunity.”
Tunheim threw out claims filed by four other protesters, saying they had not established that their constitutional rights were violated. But he hinted that their claims might be reinstated if they amended their suit and were more specific.
Nathan Hansen, a North St. Paul attorney representing the four activists, said he expected an amended complaint to be filed shortly.
“This is a huge turning point in this case,” Hansen said. “Now there is going to be a point where we can engage in discovery and obtain documents and figure out what happened. We don’t know where [the officers] got the drugs. There should be documents related to each of the tests that were administered.”
Occupy protesters held large demonstrations in Minneapolis and other U.S. cities during the fall of 2011, which continued, to some extent, into the spring of 2012. A main focus of the protests was the role of large banks in home foreclosures and alleged complicity with government.
Meanwhile, in April 2012, officers from various agencies participated in the Drug Recognition Evaluator (DRE) program, training Minnesota police on how to spot drug use by giving drugs to people to see how they’d react. Among those targeted, the suit said, were Occupy Minneapolis members and the homeless.
The DRE program was suspended in May 2012 after Occupy activists alleged in a 35-minute YouTube video that officers were giving them drugs. In the video, police from different jurisdictions can be seen persuading young people at Peavey Plaza in downtown Minneapolis to get into their squad cars. Officers are not shown distributing drugs.
The state initially did not find evidence of misconduct but suspended the program when another officer said he’d seen a Hutchinson, Minn., officer give someone marijuana.
The state Bureau of Criminal Apprehension conducted a criminal inquiry. Hennepin County Attorney Mike Freeman said later that year that his office would not prosecute the officers because there were conflicting witness accounts and no drugs were saved as evidence.
According to records obtained by the Star Tribune, six officers refused to be interviewed as part of the state investigation, including the Hutchinson officer who was accused of dispensing marijuana.
Michael Bounds, one of the Occupy protesters whose case Tunheim declared should go forward, said in the lawsuit that he was approached by two armed officers who gave him substantial quantities of marijuana and then released him in downtown Minneapolis while he was high. He also alleged he was given a quarter of a plastic zip bag filled with marijuana in exchange for information on the Occupy movement.
A second Occupy protester, Forest Olivier, whose case will also go forward as a result of Tunheim’s ruling, said that on three occasions, officers offered substantial quantities of drugs. In one case he was taken to a testing facility to be evaluated and returned to Peavey Plaza. On another occasion, he said, he was given marijuana and released on the streets while “incredibly high.”
Tunheim wrote that “being taken away in police custody after being approached by police with an offer that involves intimation of arrest if not accepted is enough to have a chilling effect on a person of ordinary firmness.”