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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA ____________________________________ Terry Yzaguirre and Jerome Yzaguirre, Plaintiff, v. City of Minneapolis, Minnesota, Officer I. Raichert, in his individual Capacity, John Does 1-10, Sgt. Patricia Annoni, in her individual capacity, Hennepin County, Minnesota, Michael Freeman, in his official capacity, and Susan Segal, in her official capacity, Defendants. _____________________________________ Plaintiffs for their complaint allege: PARTIES 1. Plaintiff Terry Yzaguirre is a resident of Hennepin County, Minnesota, COMPLAINT FOR INJUNCTION AND DAMAGES JURY TRIAL DEMANDED Civil No. ____________________
and the City of Minneapolis, Minnesota. She runs an online news magazine, MPLS Mirror, and has exercised her First Amendment rights to criticize police, including but not limited to Minneapolis Police. 2. Plaintiff Jerome Yzaguirre is a resident of Hennepin County, Minnesota,
and the City of Minneapolis, Minnesota.
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Defendant City of Minneapolis, Minnesota, is a municipality that can
sue and be sued. Plaintiffs seek Monell relief and allege a policy or custom in violation of 42 U.S.C. §1983. 4. Officer I. Raichert is upon information and belief a sworn Minneapolis
Police Officer. He participated in the illegal search and seizure described below. 5. John Does 1-10 (and the number is an estimate) are Minneapolis police
officers who, while on duty, exercised illegal policies or customs, violated Fourth Amendment search and seizure rights, and/or retaliated against Plaintiff Terry Yzaguirre for her exercise of First Amendment rights, chilled her First Amendment rights, and restrained her future exercise of First Amendment rights. 6. Minneapolis Police Sergeant Annoni is an investigator with the
Minneapolis Police Department, stationed at the Third Precinct. She is sued in her individual capacity. 7. 8. Hennepin County is a municipality that can sue and be sued. Michael Freeman is the elected County Attorney for Hennepin County
and as such is in charge of all assistant and deputy county attorneys. 9. Susan Segal is the appointed City Attorney for Minneapolis and as such
is in charge of all assistant and deputy city attorneys. JURISDICTION
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Pursuant to 28 U.S.C. §1331, this Court has original jurisdiction over this
matter, which arises under the laws of the United States including 42 U.S.C. §1983 and §1985. This Court may accept supplemental jurisdiction of the state claim(s). FACTUAL STATEMENT
Plaintiff Terry Yzaguirre runs an online news magazine called MPLS
Mirror, and covers stories about Minneapolis politics, culture, community issues with a focus on stories that the major media does not or will not cover. MPLS Mirror was the first news magazine to meet with the mothers of the Somali children who were recruited from Minneapolis. Yzaguirre was one of the only reporters granted an interview with a Somali woman who reported that she was drugged and raped. The MPLS Mirror covers stories about the Minneapolis Police, and although some of that commentary is positive about police, some of it is negative, depending on the story and the issue and the facts. 8. Terry Yzaguirre believes strongly in the importance of her First
Amendment rights, and she has been told by members of the community that they appreciate the stories that the MPLS Mirror covers. 9. In writing stories for the MPLS Mirror, Yzaguirre has obtained certain
confidential sources, documents, video, and other materials that are a newsperson’s stock in trade.
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On or about August 20, 2011, Yzaguirre was covering a funeral in North
Minneapolis of a person alleged to be a gang member. The funeral was calm and respectful. Yzaguirre has a right to attend and observe and report on the funeral, regardless of the opinion of police about the deceased, or the attendees. 11. 12. The funeral was surrounded by MPD Third Precinct squad cars. While driving around near the funeral site, Terry Yzaguirre observed
Minneapolis Police Officers grabbing people as they emerged from the funeral, and throwing them on the hood of squad car(s). 13. Yzaguirre was driving and was stopped by Minneapolis Police Officer
John Doe 1, who asked what she was doing there. Yzaguirre said she was working on a story. 14. Police demanded to know whether she had pictures or video.
Yzaguirre said no. The Police Officer called her a liar, said that was insulting to him, and demanded her insurance and driver’s license. 15. squad car. 16. Two more officers appeared on the scene (John Does 3-4) and then 2 Yzaguirre gave insurance and DL, and the officer took it back to his
more, making it a total of 5 officers (John Does 1-5). John Doe #1 returned to her car and asked Yzaguirre to step out of the car and to stand with the other 3 officers. 17. He and another officer then searched Yzaguirre’s entire automobile,
including under the hood of her car. Yzaguirre did not give consent for the search
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and she was not presented with any warrant. Upon information and belief it was a warrantless search without reasonable suspicion or probable cause. 18. John Doe #1 gave Yzaguirre back her license, again called her a “liar,”
said she was “insulting” him, and that she was required to leave the area immediately, or police would tag her car and tow it. This was an adverse action by government officials, in response to Terry Yzaguirre’s exercise of First Amendment rights. 19. In fall of 2011, Eric Yzaguirre, the son of Terry Yzaguirre, had problems
with some Hennepin County Officials, and by civil complaint dated November 6, 2011, sued several public official defendants associated with Hennepin County. That case was removed by the County-Defendants to federal court (11-cv-3418 JRT/JJK). Terry Yzaguirre and Jerome Yzaguirre are both witnesses in that federal civil case and expected to testify. 20. In mid 2010, Nicole Yzaguirre, the daughter of Terry Yzaguirre, had an
experience with Bloomington police where it was believed police were attempting illegally to obtain her cell phone and cell phone records. It was directly communicated to Bloomington police that the phone for the daughter was part of the Mother’s subscription, that the Mother was a member of the media, and her phone records were confidential and police should not attempt to view them. 21. Nicole Yzaguirre’s attorney, Jill Clark, communicated to Bloomington
police directly, verbally and in a memorandum designed to:
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Put the Hennepin County Attorney’s Office, you (and all involved law enforcement, please notify them), as well as a potential warrant-issuing judge, that: a) the mother, Terry Yzaguirre, is a member of the media, and her phone records are protected by the reporter’s shield statute and the First Amendment of the U.S. Constitution. You already know that the daughter’s phone is a “line” on the Mother’s bill, so any attempt to subpoena or obtain a warrant for such records would run afoul of the reporter’s privilege and the First Amendment, and there are potential legal consequences for that act, not only in any potential criminal case, but also civilly. You have apparently already told the family that you can subpoena the phone records. You are on notice of the above, and the family highly disputes that you can legally do so under these circumstances; b) if you attempt to arrest Nicole in order to get physical possession of her phone (which you apparently want, you called the mother and requested text messages, and apparently, searched the phone yourself on Friday without consent or warrant), you need a separate warrant to search the phone. Please inform any warrant-issuing judge of these facts if you make application for a warrant.
And in response? Bloomington police then quickly arrested Nicole
Yzaguirre as an adverse action in retaliation for her exercise of First Amendment in
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violation of her First Amendment rights to take her to the Bloomington stationhouse (not the Hennepin County jail), to try to get her phone. 23. Nicole Yzaguirre proceeded into litigation against a Bloomington police
officer alleging retaliation for her exercise of First Amendment rights through her attorney to police. 24. Police were not successful in obtaining Terry Yzaguirre’s phone
records in that litigation. 25. On December 21, 2012, the U.S. District Judge denied the Bloomington
officer’s motion for summary judgment in its entirety (10-cv-3793 (DWF/JJK) Docket 29). The case was going to trial, and Terry Yzaguirre had been identified as a witness. 26. One day later, on December 22, 2011, Raichert and John Doe
defendant police officers of the MPD spent 1 hour and 20 minutes inside Terry Yzaguirre’s home without a warrant, and without any non-police witnesses (having chased a potential witness away under penalty of arresting him if he did not leave), which allowed time sufficient to search computers, copy computer hard-drives, and otherwise interfere with Yzaguirre’s media and other First Amendment rights. 27. Minneapolis Police also: illegally arrested Jerome Yzaguirre and took
him to the Third Precinct Stationhouse; illegally seized Jerome Yzaguirre’s cell phone and had it for sufficient time to search it and download the contents. No
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warrant was shown to Jerome Yzaguirre, and investigation has shown Minneapolis Police had no warrant. 28. Jerome Yzaguirre’s car was towed without a warrant. Minneapolis
police still have it to this day. 29. Minneapolis police claimed to have a warrant for the arrest of Eric
Yzaguirre (who was suing Hennepin County), but it was proven later that that was false: police had no such warrant. 30. On December 23, 2011, the attorney for Eric Yzaguirre, Jill Clark, faxed
the Chief’s Office at the Minneapolis Police Department, and detailed the following:
FAX MEMORANDUM TO: FROM: Minneapolis Police Administration Jill Clark, Attorney My client: Eric Yzaguirre DATE: RE: 12-23-11 Minneapolis Police activity 3539 12th Avenue South
I want to alert police administration that it was reported to me that MPD was at the above address yesterday, the address of the home of Terry Yzaguirre, who has the online news magazine MPLS Mirror. It is reported that police stated, more than once, that they had a warrant, or even two warrants, for Eric Yzaguirre.
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However, I called warrants both yesterday and today and was told there are no warrants.
Further, it is reported to me that police went into the home of the MPLS Mirror reporter, scared witness(es) away by threatening to arrest them, then spent 1 hour and 20 minutes inside the MPLS Mirror reporter’s house – alone (that is, with no civilian witnesses). We all know it does not take 1 hours and 20 minutes to search for a live person inside a house.
Further, they reportedly took the cell phone of Jerome Yzaguirre and had it for long enough to search it, copy it, etc. We have not seen any warrant for that search. I called the Third Precinct yesterday to ask them what they were doing, but they would not pick up the phone (it rang and rang and likely they saw my caller ID). Apparently police threatened that anyone “harboring a fugitive” would be arrested. No one is a fugitive to our knowledge. And, such threats seem to be fitting some other agenda that someone has going on. Please have police fax me the warrant: if there is a valid warrant I will produce Eric Yzaguirre and there is no need for any further searches, threats, arrests, etc.
Police conduct is questionable here and I’d like to give Administration the chance to sort this out and prevent any further infraction of  constitutional rights.
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That same day, counsel for Eric Yzaguirre talked to a Sgt. Olson at the
Third Precinct, who acknowledged that there was no warrant for Eric Yzaguirre. Sgt. Olson identified some claimed authority for a “PC pickup,” which Plaintiffs allege is an unconstitutional policy or custom in the City of Minneapolis. Counsel for Eric Yzaguirre sent the following fax memorandum:
FAX MEMORANDUM TO: FROM: Minneapolis Police Administration Jill Clark, Attorney My client: Eric Yzaguirre DATE: RE: 12-23-11 SECOND FAX THIS DATE
I wanted to let Police Administration know that I spoke with Sgt. Olson at the Third Precinct. He acknowledged that they had no warrant.
He said there was a “PC pickup” for Eric Yzaguirre, and (I’m summarizing) that they did not want to take him to jail, but to bring him to the Third Precinct to “talk to
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him.” I questioned the legality of that but did not hear anything from Sgt. Olson that would cause me to think it is legal. I asserted the Fifth and Sixth Amendment rights of Eric Yzaguirre, and I told Sgt. Olson that my client has a right to have an attorney present if he decides he wants to talk to police (obviously, he is under no compulsion to talk to police), and that they need to go through me.
I also asserted the Fourth Amendment rights of those with a privacy interest in the home I referenced in my last fax. I told Sgt. Olson that over and above the issues relating to Eric Yzaguirre’s Fifth Amendment rights, that I police know they cannot spend 1 hour and 20 minutes inside a media person’s house without any kind of warrant, and his response was that they could if they had “exigent circumstances.” An investigator wanting to “talk” to an American citizen about what must be a cold case is no kind of exigent circumstances.
I left my phone number with Sgt. Olson so that any investigator can call me to work to set up an interview with Mr. Yzaguirre, if that’s what Mr. Yzaguirre wants.
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There were no exigent circumstances. There was no warrant for Eric
Yzaguirre, who would have been within his rights at all times to decline to ride with police to the Third Precinct stationhouse, or to decline to speak with police. 33. Sgt. Annoni of the Third Precinct knew that Minneapolis Police had
gone to Terry Yzaguirre’s house without a warrant. Knowing that, she participated along with the Hennepin County Attorney’s Office (which is representing Eric Yzaguirre in his civil lawsuit) to sign a felony criminal complaint, and obtain a warrant for Eric Yzaguirre under circumstances that are still being investigated. 34. Eric Yzaguirre is obviously a witness in his own federal case. The
County-defendants removed it to federal court, and Yzaguirre is now protected by 42 U.S.C. §1985. 35. The Minneapolis City Attorney’s Office is vigorously litigating against
Eric Yzaguirre in a misdemeanor case. It is alleged that the vigor relating to that misdemeanor prosecution is: a) because Eric Yzaguirre hired Jill Clark (which Eric Yzaguirre has a constitutional right to do); and b) because Eric Yzaguirre is suing Hennepin County and others to vindicate his rights. These facts are background facts for purposes of this case. 36. In investigating, the Minneapolis City Attorney’s Office is apparently
having police and/or its own investigators frequently call the woman who Eric Yzaguirre alleged assaulted him.
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Recently, Eric Yzaguirre’s defense team learned that the woman had
been called by police or investigators and asked whether Eric Yzaguirre has ever used Terry Yzaguirre’s phone. 38. There is no known legitimate reason for police/investigators to be
pursuing Terry Yzaguirre’s phone records. However, based on history, it appears that Minneapolis and/or Hennepin County are attempting to create a factual basis to obtain a search warrant for Terry Yzaguirre’s phone records which contain numerous confidential sources. 39. It is unknown at this time whether the call was instigated by the
Minneapolis City misdemeanor case, or the County’s purported “felony” case, which was vigorously pursued by Minneapolis police after the Yzaguirres complained to Police Administration that Terry Yzaguirre’s house had been illegally searched. 40. Further, as her son, Eric Yzaguirre’s phone records are part of Terry
Yzaguirre’s account. 41. Concerned about government working to create a “plausible
deniability” scenario (where government officials knowingly and deliberately access Terry Yzaguirre’s phone records while preparing for the future to claim it was because they were investigation Eric Yzaguirre and did not know better), Eric Yzaguirre’s attorney contacted the felony prosecutor of the Hennepin County Attorney’s Office.
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By email dated 1/11/12 (11:59 a.m.), Eric Yzaguirre’s attorney
contacted the felony Prosecutor and asked,
Are you asking Minneapolis police (or do you have knowledge of them on their own) trying to get phone records or tap on the phone of Terry Yzaguirre? Because I need to inform you that she has reported misconduct by the Minneapolis police, and that she has an online news magazine that has criticized Minneapolis police.
Your office should not be involved in any way, and we expect that you will immediately inform the entire Minneapolis police department that the First Amendment rights of Terry Yzaguirre (as well as the reporter’s shield) would prevent the police obtaining a warrant to obtain her phone records, or to obtain a tap on her phone.
The Prosecutor’s response, also by email dated 1/11/12 (1:26 p.m.),
was, “I am unaware of any investigatory steps taken against Terry Yzaguirre.” 44. By email dated 1/11/12 (1:30 p.m.) Eric Yzaguirre’s attorney
described this as a “non-answer,” and stated, “You re-worded the question and that leads me to believe you are trying not to answer it. I am telling you that the entire
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MPD is now on notice. And your non-answer tells me that we need to take legal action immediately.” 45. The only response to date from the Prosecutor was, “I’m off to court
now, you have my answers.” Nothing had been done to assure Terry Yzaguirre that her phone records are not being accessed by police or prosecutors. 46. 22, 2011. 47. 48. Jerome Yzaguirre’s calls to the Third Precinct were not returned. Eric Yzaguirre’s attorney called Sgt. Annoni and asked why if she was Police seized Jerome Yzaguirre’s car without a warrant on December
holding the car, and if so under what authority (not verbatim). 49. Sgt. Annoni stated that defense should call Paul Scoggin, because he
had made the decision to hold the car. 50. By email dated 1/11/12 (1:19 p.m.), Eric Yzaguirre’s attorney wrote to
the felony Prosecutor and stated,
I just called Sgt. Annoni, and asked if she was going to keep or spring the car of Jerome Yzaguirre which was seized without a warrant.
She said I had to call you, because she indicated she called to ask you about it, and you were the one who said to keep it.
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I need to know asap if that car is going to be sprung, or if it going to be kept, what is the legal basis?
It appears by me receiving an email from you just now (read receipt) that you are in, so please let me know asap because I am working now on a complaint to sue it out.
The response of the felony Prosecutor email dated 1/11/12 (1:29 p.m.)
was, “I assume it is held as an instrumentality and evidence of a crime.” 52. Eric Yzaguirre’s attorney wrote back to the felony Prosecutor objecting
to the “non-answer,” and objected to the notion that the felony Prosecutor (who had been identified by Sgt. Annoni as having made the decision to keep the car) was suggesting he was guessing as to why it was being kept. 53. To date, no one in authority has returned Jerome Yzaguirre’s car, no
law has been cited as authority for holding it, and no forfeiture action was commenced by Hennepin County.
COUNT I Violation of 42 U.S.C. §1983 (Against all Defendants) 54. Plaintiffs reallege all facts in this Complaint as if fully set forth herein:
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This claim arises under Title 42 of the United States Code (Civil Rights
Act of 1964, as amended), including but not limited to §1983. 56. Defendants deprived Plaintiffs of their rights, privileges, and immunities
secured by the United States Constitution, and specifically the First and Fourth Amendments (applied to the State by the Fourteenth Amendments), in conjunction with other rights, including but not limited to the following clearly established rights. In the factual scenarios stated below, violations of both First and Fourth Amendment rights are claimed: a. Police performed an unreasonable, warrantless search of Terry Yzaguirre’s home where Jerome Yzaguirre also resided, remaining in the home for 1 hour and 20 minutes, sufficient time to search her entire home, search all of her media records (print and computer), and even to image her hard-drive; b. Police either have or are about to access Terry Yzaguirre’s phone records; c. Jerome Yzaguirre questioned police conduct on December 22, 2011, and police arrested Jerome Yzaguirre without a warrant and kept him in custody and transported him against his will to the Third Precinct, an adverse action for exercise of First Amendment rights;
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police seized Jerome Yzaguirre’s phone without a warrant, and has it sufficient time to search its contents or copy its data, all without his consent;
Police seized Jerome Yzaguirre’s car without a warrant on December 22, 2011, and Hennepin County has refused to return it or commence a forfeiture action.
In addition, Terry Yzaguirre had a right to associate with her daughter, Nicole, who had exercised her constitutional right to file a lawsuit against police, and she had a right to associate with Jill Clark, plaintiff attorney for her daughter Nicole in suing police, and defense attorney to her son Eric, who was defending in a state criminal action, as well as her son Eric, who was also suing government officials and who was vigorously defending in state criminal court.
Minneapolis has an unconstitutional policy or custom of police acting on
something that they have created and does not exist in law, called a “PC pickup,” which police treat like a warrant, but which has never gone before a neutral magistrate. Police treat the “PC pickup” as if they can seize Americans against their will at their homes, take and search their belongings and property (such as vehicles), and take Americans to the precinct stationhouse against their will to attempt an interview. Such policy or custom violates First and Fourth Amendment rights.
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To the extent necessary to plead it, defendants knew they were violating
the federal law and constitutional rights of Plaintiffs and/or acted with intent and/or deliberate indifference to the rights of Plaintiffs as noted above, or with malice. The Defendants acted under color of law (while an on-duty police officer) of a statute, ordinance, regulation, resolution, policy, custom or usage when he deprived Plaintiff of her Constitutional rights, privileges, and immunities. 60. By reason of the foregoing, Plaintiff Terry Yzaguirre is entitled to a
negative injunction against Defendants, prohibiting them from accessing her phone records or other media data; and Jerome Yzaguirre is entitled to a mandatory injunction requiring that his car be returned to him. 61. Plaintiffs also seek compensatory damages, presumed damages, and
COUNT II Replevin
Plaintiff Jerome Yzaguirre realleges the above allegations as if hereinafter
set forth in full and further states and alleges as follows: 63. Right and title to the vehicle seized by police on December 22, 2011
resides in Jerome Yzaguirre.
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The vehicle was wrongfully seized, neither the City of Minneapolis nor
Hennepin County has come forward to provide a legal basis to hold the vehicle, and Jerome Yzaguirre is entitled to an injunction for return of the vehicle. COUNT III 42 U.S.C. §1985 65. Plaintiff Jerome Yzaguirre realleges the above allegations as if hereinafter
set forth in full and further states and alleges as follows: 66. Plaintiff Terry Yzaguirre was on December 22, 2011, listed as a witness
in the federal civil rights case of Nicole Yzaguirre. Terry Yzaguirre is also an obvious witness in Eric Yzaguirre’s federal case. Yzaguirre’s federal case. 67. Two or more defendants conspired to deter by intimidation or threat, Jerome Yzaguirre is witness in Eric
witnesses Terry Yzaguirre and/or Jerome Yzaguirre from attending such court or from testifying in any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict of any petit juror, or for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State, with intent to deny equal protection of the laws, or to injure him or his property for lawfully enforcing, to attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.
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Plaintiffs are therefore entitled to damages in excess of $50,000, and/or
an injunction to prohibit such future conduct of defendants.
PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for relief in the form of an injunction against Defendant and/or as follows: 1. Judgment in a reasonable amount in excess of $50,000, and including but
not limited to compensatory, presumed and punitive damages; 2. 3. Interest on the aforesaid amounts; Awarding to Plaintiffs their reasonable attorney fees and costs and
disbursements incurred herein; and 4. Issuing a temporary and/or permanent prohibitory injunction
prohibiting further abuses by Defendant, as discussed above. *** Plaintiff hereby demands a trial by jury on all applicable Counts. Plaintiff reserves the right to amend to add a claim for punitive damages under State law. Dated: January 17, 2012 ATTORNEYS FOR PLAINTIFF JILL CLARK, P.A. s/jillclark _________________________________ By: Jill Clark, Esq. (#196988) 2005 Aquila Avenue North Minneapolis, MN 55427 (763) 417-9102
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