Federal and State Civil Claim Against Patriot Front for Alleged Vandalism of Fargo Market Can Go Forward

From N.D. Human Rights Coalition v. Patriot Front, decided Sept. 9 by Chief Judge Peter Welte (D.N.D.):

This case involves the vandalism of the Market [International Market Plaza in Downtown Fargo] in September 2022. As alleged, individuals affiliated with Patriot Front, which is alleged to be a "white supremacist group," trespassed onto the Market and spray-painted Patriot Front designs across the front of the Market's building. A few days later, Patriot Front members also vandalized the Market's street-facing wall….

An earlier order noted that "the complaint describes the International Market Plaza as a large indoor community space filled with African, Middle Eastern, and Latin American immigrant-owned shops, restaurants, and grocery stores."

The N.D. Human Rights Coalition and the Executive Director of the entity that owns the Market sued the Patriot Front and "Thomas Rousseau, who is alleged to be the National Director of the Patriot Front, and Trevor Valescu, who is alleged to be a member of the Patriot Front and the Network Director of the organization's Network 11, which supervises activities in North Dakota." The court allowed the case to go forward:

Under 42 U.S.C. § 1981, all persons within the jurisdiction of the United States shall have "the same right … to make and enforce contracts … as is enjoyed by white citizens." This includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." The elements of a § 1981 claim include (1) membership in a protected class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity, and (4) interference with that activity by the defendant….

Rousseau and Valescu argue that the Plaintiffs have not identified any specific contracts that were interfered with as a result of the vandalism. To be sure, the factual allegations identifying contracts in the complaint are thin, but the Plaintiffs do allege some deprivation of financial benefit in rental and lending contracts. Whether the Plaintiffs will be able to identify any specific contracts that the Defendants interfered with to survive summary judgment is certainly an open question. But at this stage of the litigation, the focus is on plausibility and whether there are sufficient factual allegations to support the claim. That standard is met as to this claim—the complaint plausibly alleges a § 1981 claim, and the motion to dismiss that claim is denied.

[Title 42 U.S.C.] § 1985(3) provides a civil remedy for private conspiracies to deprive others of legal rights. To state a § 1985(3) claim, the Plaintiffs must plausibly allege (1) a conspiracy of two or more persons; (2) for the purpose of depriving another of equal protection or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation of a legal right….

The Plaintiffs allege the impaired federal substantive right is the right to enjoy a place of public accommodation—the Market—without fear or intimidation on account of race, religion, or nationality…. "[A] racially motivated conspiracy to interfere with one's enjoyment of a place of public accommodation" is a viable [basis for a] § 1985(3) claim….

Accepting the factual allegations as true and reading the complaint in the light most favorable to the Plaintiffs, they have plausibly alleged a § 1985(3) claim. They allege a conspiracy among the Defendants to deprive the Plaintiffs of their civil rights, and they alleged acts in furtherance of the conspiracy, including the vandalism to the Market. They allege two predicate rights as the basis for the § 1985(3) claim—(1) the right to make and enforce contracts, and (2) the right to enjoy a public accommodation. Again, whether the Plaintiffs can ultimately prove their § 1985(3) claim is an open question to be resolved another day. At this point, they have plausibly alleged a § 1985(3) claim, and the motion to dismiss that claim is denied.

Under North Dakota law, conversion is "a tortious detention or destruction of personal property, or a wrongful exercise of dominion or control over the property inconsistent with or in defiance of the rights of the owners." Rousseau and Valescu specifically argue that the complaint fails to allege that either of them committed the tortious act. And their argument is correct—the complaint does not allege that Rousseau and/or Valescu engaged in a tortious detention, destruction, or control over the property at issue. So, conversion is not plausibly alleged as to Rousseau and Valescu, and the motion to dismiss the conversion claim is granted as to both of them.

The same analysis and result apply to the trespass to chattel claim. Trespass to chattel "requires dispossession of the property impairment of the condition, quality or value of the property, loss of use of the property, or other harm." "One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if he dispossesses the other of the chattel." There is no allegation that Rousseau and Valescu are the individuals who "impaired" the condition of the property or dispossessed the property from its rightful owner. So, the motion to dismiss the trespass to chattel claim is granted.

Next, civil trespass is a common law tort in North Dakota. The North Dakota Supreme Court has defined trespass as "an intentional harm where a person intentionally and without a consensual or other privilege enters land in possession of another or any part thereof or causes a thing or third person so to do." The complaint alleges that Rousseau and Valescu, through their leadership, coordination, and instruction, caused Patriot Front members to enter the IDC's property without consent, for the purpose of vandalizing the Market. That is sufficient to state a claim for civil trespass, and the motion to dismiss that claim is denied….

Civil conspiracy is:

a combination of two or more persons acting in concert to commit an unlawful act or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another and an overt act that results in damages.

Rousseau and Valescu did not move to dismiss this claim, and there are sufficient facts in the complaint to support a plausible civil conspiracy claim. So, the claim will survive dismissal.

Christina Elisabet Dierolf, Christine Y. Wong, and William Frentzen (Morrison Foerster, LLP), Jon M. Greenbaum (Justice Legal Strategies, PLLC), Timothy Q. Purdon (Robins Kaplan LLP), Anisa Sirur, and Arthur Ago represent plaintiffs.