Ness v. City of Bloomington, No. 20-2571 (8th Cir. 2021)
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Plaintiff filed suit against the City of Bloomington, the Hennepin County Attorney, and two Bloomington police officers, seeking a declaration that a state harassment statute and a city ordinance are unconstitutional under the First Amendment, injunctive relief against enforcement of those laws, and nominal damages. Plaintiff's claims stemmed from her desire to produce photographs and video recordings of activities in a public park, where the images captured would include children.
The Eighth Circuit dismissed as moot plaintiff's challenge to the harassment statute, which has been superseded by the state legislature; affirmed as to plaintiff's claims for damages against the police officers and the City based on alleged enforcement of the former harassment statute; and reversed and directed entry of judgment for plaintiff on her claim that the city ordinance forbidding photography and video recording in the public park is unconstitutional under the First Amendment as applied to her activity on which the claim is based. The court explained that, because the ordinance is significantly over-inclusive with respect to the City's asserted interest, it is not narrowly tailored and fails strict scrutiny as applied to plaintiff's proposed conduct.
Court Description: [Colloton, Author, with Wollman and Kobes, Circuit Judges] Civil case - Civil rights. Plaintiff brought this action seeking a declaration that Minnesota's 2019 harassment statute, Minn. Stat. Sec. 609.749, and the City of Bloomington's ordinance governing photographing of children in public parks were unconstitutional on their face and as applied to her; plaintiff's challenge to the 2019 version of the Minnesota statute and claim for injunctive relief are moot in light of the adoption of a new version of the statute in 2020 which addressed plaintiff's complaint that the statute was unconstitutional because it lacked an intent requirement; with respect to plaintiff's complaint against two police officers in their individual capacities for threatening to enforce the 2019 statute, the officers could reasonably rely on a statute which had not been declared unconstitutional at their time of their actions, and they were entitled to qualified immunity; claim for nominal damages against the City and the officers in their official capacities rejected as plaintiff failed to allege a City policymaker adopted the state statute as the official policy of the City or that the City had a policy or custom of enforcing the statute in an unconstitutional manner; Section 5.21(23) of the Bloomington City Code governing the filming and photographing of children in parks is unconstitutional as applied to plaintiff and that portion of the suit is remanded to the district court for entry of judgment for plaintiff that the section is unconstitutional as applied to plaintiff's photography and video recording of matters relating to a public controversy at Smith Park.
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