GOVERNMENT LIABILITY
Social media use by government official

James Freed is the city administrator for Port Huron, Michigan. Several years before becoming city administrator, Freed set up a personal Facebook page. On that page, he posted about both personal and city matters. Freed occasionally responded to citizen inquiries and deleted comments he found derogatory or foolish. Kevin Lindke sued Freed after Freed deleted Lindke’s comments regarding the city’s COVID-19 response and eventually blocked Lindke from accessing his Facebook page. Lindke filed a Section 1983 lawsuit against Freed, arguing he had a First Amendment right to comment on Freed’s page because it was a public forum.

The Sixth Circuit Court of Appeals ruled for Freed, saying a city official’s social media activities can only be considered state action if a law requires an official to maintain a social media account or has government staff run the account. Lindke petitioned the United States Supreme Court to hear the case. The Supreme Court held the Sixth Circuit had applied an incorrect test and announced a new two-part test to determine whether a public official who posts on a social media page is engaging in official or personal speech.

The Supreme Court held that social media postings, even on a personal page, would be considered speech on behalf of the state if the official:

• Possessed authority to speak on the state’s behalf.
• Exercised that authority when making his social media post.

The Supreme Court did not rule on whether Freed had violated Lindke’s free speech rights, instead sending the matter back down to the Sixth Circuit to apply the new test. The Court also cautioned against the use of “mixed-use” social media accounts, where government officials use a personal page for public pronouncements.

The Supreme Court’s test is different from one recently applied in the Eighth Circuit Court of Appeals. In Felts v. Green, 91 F.4th 938 (8th Cir. 2024), that court held that government bodies are only liable in Section 1983 actions about social media postings if the lawmakers set the policy or the action was taken by someone whose actions represented official policy.

Lindke v. Freed, ____ U.S. ____ (2024) (citation pending)

EMPLOYMENT LAW
Unemployment compensation

Tyler Leibfried, a police officer for the City of Duluth, responded to a domestic abuse call. When Leibfried and his partner arrived, the woman did not want to press charges but wanted to get her belongings from the apartment occupied by her boyfriend. The officers went to the apartment, but before Leibfried could knock, heard two loud bangs they believed were gunshots. Leibfried drew his gun and heard what he thought was a gun being racked. He fired four shots through the door but then heard someone inside yelling “Stop” and “Ow.” Leibfried did not announce he was a police officer or take cover. The apartment door remained closed and there were no other loud bangs. Two seconds after the man inside stopped yelling, Leibfried fired two more shots through the door. The person inside cried out again, saying he was shot. The man sustained a shotgun wound to the shoulder. No guns were found.

The city terminated Leibfried, and he applied for unemployment benefits. An unemployment law judge (ULJ) ruled Leibfried’s final two shots were not consistent with the city’s use-of-force policy and constituted employee misconduct. The city’s policy required Leibfried to reassess the threat level before using additional deadly force. The ULJ determined it was not credible Leibfried believed there was an imminent deadly threat after his first four shots given the cries of pain and lack of return fire.

The Minnesota Court of Appeals upheld the decision, saying there was substantial evidence supporting the ULJ’s ruling. The court agreed Leibfried’s intentional firing of the last two shots contradicted his knowledge of the use-of-force policy.

Leibfried requested the case be remanded, or returned to the lower court for reconsideration, because the Duluth Police Department had not convened a use-of-force review board before firing him. The court declined, saying the ULJ’s role was only to determine whether Leibfried’s behavior was employee misconduct disqualifying him from unemployment benefits.

Leibfried v. Duluth, No. A22-1724 (Minn. Ct. App. Jan. 16, 2024) (nonprecedential opinion)

RENTAL HOUSING ORDINANCE
State preemption of local laws

In 2017, a group of landlords sued the City of Minneapolis over adoption of an ordinance prohibiting discrimination against tenants based on receipt of public assistance like Section 8 vouchers. Hennepin County District Court originally ruled in favor of the landlords, blocking the ordinance. The city appealed and prevailed at the Minnesota Court of Appeals and the Minnesota Supreme Court. The case was remanded to the lower court, which then upheld the ordinance. A second appeal followed. The appellate court affirmed the lower court’s decision.

On appeal, the landlords argued the ordinance was an unconstitutional physical taking because it required them to rent to tenants they wished to exclude. A physical taking occurs when the government appropriates or physically invades private property. The court rejected this, stating the landlords had already chosen to rent their property and the ordinance only imposed restrictions on how they could, which was not an appropriation.

Next, the landlords asserted the Minneapolis ordinance was preempted by the Minnesota Human Rights Act (MHRA). Ordinances are preempted when state law “occupies the field,” meaning that a state law thoroughly covers an issue, so the city ordinance is overridden because the state law takes full control of the matter. The appellate court stated there was nothing in the MHRA showing the Legislature intended it to completely cover housing discrimination.

Finally, the landlords contended the state’s populace would be harmed if there were different definitions of discrimination at a municipal level. The court noted the landlords had not shown a local regulation would adversely affect the state at large, and it was not enough to show a business must follow different regulations in different cities.

Fletcher Properties, Inc. v. City of Minneapolis, No. A23-0191 (Minn. Ct. App. Jan. 16, 2024) (precedential opinion).

CONSTITUTIONAL LAW
Fourth Amendment

Katie Whitworth was visiting Mark Kling, a Bryant, Arkansas police officer. Kling and his K9, Dutch, were in the backyard when Whitworth exited the house. Kling ordered Dutch to his kennel. The dog initially obeyed, but after hearing laughter, charged Whitworth. Kling commanded Dutch to disengage, but he did not and bit Whitworth’s arm. Kling pried Dutch away from Whitworth and secured him in the kennel.

Whitworth sued the city and Kling for excessive force, arguing the dog bite was a “seizure” under the Fourth Amendment. The lower federal court in Arkansas ruled against Whitworth, and she appealed.

The Eighth Circuit ruled that using physical force to restrain someone can be a seizure, but only if there is an intent to restrain. Accidental force does not qualify, and the court said this incident was accidental force. Kling did not command the dog to bite or apprehend Whitworth. Rather, the dog had a spontaneous response to laughter and ignored Kling’s commands. Kling secured Dutch as soon as possible. Kling therefore did not seize Whitworth, so the appellate court upheld the decision of the lower court. The court also affirmed the dismissal of Whitworth’s claim against the city; since Kling’s actions did not violate the Fourth Amendment, there was no issue of municipal liability.

Whitworth v. Kling, 90 F.4th 1215 (8th Cir. 2024)

EMPLOYMENT LAW
Continuation of health care benefits

Charles Aldean was a police officer for the City of Woodbury and was enrolled in the city’s health care plan. Aldean had job-related health problems and applied for disability benefits. In April 2020, the Public Employees Retirement Association (PERA) said Aldean was entitled to duty disability benefits and health insurance coverage from the city until he turned 65. Aldean resigned shortly after. In summer 2020, Aldean took another job and stopped paying his share of the premium. He was dropped off the city’s plan, but in October 2021 Aldean requested his health insurance through the city be restarted. The city refused and Aldean sued, saying Minnesota Statutes, section 299A.465, which requires a city to “continue to provide health coverage” to a duty disabled officer meant the city had to reinstate him. The lower court ruled for Aldean, and the city appealed. The Minnesota Court of Appeals upheld the decision.

The city argued it did not have to provide insurance to Aldean once he voluntarily let it lapse because once the insurance terminated, there was no insurance to “continue.” The court disagreed, saying the statutory requirement to “provide” health coverage meant the Legislature intended the city make health insurance available to a duty disabled officer or firefighter until age 65 even if the former employee let that coverage lapse and later wanted to restart coverage.

Aldean v. City of Woodbury, No. A23-0359 (Minn. Ct. App. Feb. 5, 2024) (precedential opinion). Note: The League filed an amicus brief in support of the City of Woodbury.

Written by Lisa Needham, research attorney with the League of Minnesota Cities. Contact: [email protected] or (651) 281-1271.