11-23-2020 Council Work Session Packet

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Page 4 of 6 James Monge enforcement action against Plaintiffs. (Penas Aff. ¶ 11.) B. Procedural History On January 23, 2012, Plaintiffs Disc & Tape, Inc. doing business as Discontent, Discontent employee Stacey Anthony, Discontent employee Russell Steele, and Discontent employee Jessica Wolf filed a Complaint against the City in this Court. The Complaint [*10] alleges: Count One: Violation of Civil Rights under 42 U.S.C. § 1983. Count One is based on the allegation that the City's announced enforcement practice is unconstitutionally vague, violates the equal protection clause of the Fourteenth Amendment, and will subject Plaintiffs to unlawful arrest without probable cause in violation of the Fourth and Fourteenth Amendments. The Complaint also alleges Count Two: Violation of City Ordinance. Count Two is based on the allegation that the City's intended enforcement practice of the Ordinance is not supported by the plain language of the Ordinance itself. Specifically, the City asserts a right to arrest Plaintiffs for selling pipes based solely on their physical characteristics, regardless of the intent of the seller or the purchaser. The Complaint further alleges Count Three: Equity and Irreputable Injury, seeking injunctive relief. On January 26, 2012, Plaintiffs filed a Motion for Preliminary Injunction and Temporary Restraining Order. [Docket No. 3] On February 22, 2012, the Court denied Plaintiffs' motion for a preliminary injunction. Disc & Tape, Inc. v. City of Moorhead, Minn., Slip Copy, Civil No. 12-171, 2012 U.S. Dist. LEXIS 22195, 2012 WL 591668 (D. Minn. Feb. 22, 2012). [*11] The Court held that Plaintiffs were unlikely to succeed on the merits of their claim because the United States Supreme Court had upheld a very similar drug paraphernalia statute in Posters 'N' Things; the evidence was that the City intended to enforce the Ordinance as written; there is no requirement of a subjective intent in the definition of drug paraphernalia; and the Ordinance's objective scienter requirement (that the defendant knew or reasonably should have known that the item would be used with illegal drugs) is constitutional. 2012 U.S. Dist. LEXIS 22195, [WL] at *3-*6. The Court pointed out that the City would have the burden of proving objective intent if it actually initiated a prosecution. 2012 U.S. Dist. LEXIS 22195, [WL] at *6. The Court also concluded that Plaintiffs did not face irreparable harm because other businesses had managed to stay in business with a modified inventory. 2012 U.S. Dist. LEXIS 22195, [WL] at * 7. The City now moves for summary judgment on all claims against it. III. DISCUSSION A. Summary Judgment Standard Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); [*12] Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The party seeking summary judgment bears the burden of showing that there is no disputed issue of material fact. Celotex, 477 U.S. at 323. "A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case." Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). B. Constitutionality of the City's Announced Intended Enforcement Practice The City notes that Plaintiffs do not contend that the Ordinance is unconstitutional on its face. (Compl. ¶ 24.) Rather, Plaintiffs solely claim that "the announced enforcement practice" of Defendant is unconstitutional. (Id.) Specifically, Plaintiffs assert that three Moorhead police officers told Plaintiffs that they would be arrested and prosecuted under the Ordinance based solely on the physical characteristics of some of the items in Discontent, regardless of the intent of the sellers or purchasers. (Id. ¶¶ 14, 28.) 1. Constitutionality of the Ordinance as Written The Ordinance is constitutional [*13] as written, as this Court already explained in its February 2012 Order, based on the Supreme Court opinion in Posters 'N' Things, Ltd. v. United States, upholding a very similar drug paraphernalia statute. 511 U.S. 513, 114 S. Ct. 1747, 128 L. Ed. 2d 539 (1994). Like the statute in 2013 U.S. Dist. LEXIS 4392, *9