Racially Discriminatory Enforcement Lawsuit Against Duluth Police Officer Can Go Forward

A black resident called the police to complain about alleged racial harassment by white neighbor; the resident alleges the police arrested him for leaving the scene after the police arrived, but didn't arrest the neighbor for doing the same thing.

From Kirk v. City of Duluth, decided last Wednesday by Judge Patrick Schiltz (D. Minn.):

Plaintiffs Aaron Kirk, who is black, and Amy Kirk, who is white, are a married couple who reside in a predominantly white neighborhood in Duluth, Minnesota. The Kirks allege that, beginning in 2007 and continuing for many years thereafter, they were subjected to a campaign of racist harassment from two of their neighbors (who lived with each other). Specifically, the neighbors repeatedly made false and unfounded complaints about the Kirks to the Duluth Police Department, subjecting the Kirks (and sometimes their children) to over 100 interactions with the police. On every occasion, the responding officers found the complaints to be unfounded.

The neighbors' complaints ran the gamut from frivolous to serious, including complaints that the Kirks' daughter was drawing on the sidewalk with chalk; that the Kirks' dog (a small Schnauzer) was aggressive and made too much noise; that the Kirks were running a methamphetamine lab; that Aaron Kirk was abusing his child; that Aaron Kirk was "slamming doors" and making noise inside his own home; and that Aaron Kirk was planning to steal roofing materials that the neighbors' contractor had left outdoors. On one occasion, one of the neighbors called Aaron Kirk "nigger" and threatened to call the Ku Klux Klan. The same neighbor twice told police that she was going to shoot the Kirks' dog.

According to the complaint, the "most recent[ ]" incident—an incident that did not involve the neighbors—occurred in July 2020. Aaron Kirk was driving on a Duluth street when defendant Dustin Turcotte cut him off. Kirk sounded his horn, and Turcotte responded by, among other things, repeatedly calling Kirk "nigger," following Kirk first to a restaurant and then to a bank, blocking Kirk's car in the restaurant parking lot, and repeatedly threatening to beat Kirk with brass knuckles.

Turcotte fled after a squad car arrived while the two were outside the bank. Kirk reported Turcotte's conduct to the responding officer, Sara Schutte, who then walked away from Kirk and began speaking to a third-party witness. Kirk left the scene, but officers later showed up at his home and arrested him for fleeing a police officer. While transporting Kirk to jail, Schutte remarked to Kirk: "I could have let you go, but you were being an asshole so I'm taking you to jail." Schutte eventually cited Kirk for disorderly conduct, obstructing the legal process, and reckless driving. Kirk remained in jail for four days; all charges were eventually dropped.

Lawsuits against the government for failing to protect people from private misconduct are very hard to win, and indeed the failure-to-protect claims were thrown out here, because plaintiffs didn't plausibly allege that the city was affirmatively involved in the neighbors' misconduct; some of the claims were also outside the statute of limitations. But plaintiffs' discriminatory prosecution claim was allowed to go forward:

[T]he Kirks allege that Schutte violated the Equal Protection Clause by discriminating against Aaron Kirk following the road-rage incident with Turcotte. Defendants argue that this claim fails because the Kirks have failed to identify a similarly situated comparator of a different race. See Mitchell v. Kirchmeier (8th Cir. 2022) ("To prove that the officers who allegedly shot him violated the Equal Protection Clause, Mitchell would need to show that they treated people who were not Native Americans but were otherwise similarly situated to him more favorably than him.").

The Court disagrees. Kirk was ostensibly arrested for fleeing a police officer. But Turcotte himself, who is white, also left the scene. As defendants point out, the complaint does not expressly allege that Turcotte was not arrested, but that is a reasonable inference from the allegations in the complaint. Defendants' motion to dismiss this claim is therefore denied….