by Gary Taylor
Federal 8th Circuit Court of Appeals, June 29, 2023
Kieth Kiefer moved onto a 53-acre parcel in Isanti County in 1992, and purchased the property in 1996. Shortly after moving onto the property he began to use approximately one acre to store scrap and other unwanted items, including “unlicensed vehicles, piles of scrap metal, tin, old furniture, old building material….” and many other items of junk. After receiving a citizen complaint, the County sent Kiefer several letters notifying him that his use of the property violated local law. Kiefer did not respond. Eventually, on November 19, 2008 the County cited Kiefer with a zoning code violation. Then, on December 22, 2008 the County filed a two-count criminal complaint charging Kiefer with (1) violating the county zoning code, and (2) violating the county solid waste ordinance. The county eventually dropped the zoning violation charge and proceeded to trial on the violation of the solid waste ordinance. A jury convicted Kiefer, and he was sentenced to 90 days in jail, 60 of which he served.
In March 2011, the County filed a civil action in Minnesota state court alleging that Kiefer was again violating the County’s zoning and solid waste ordinances. Kiefer responded, this time asserting the County had misinterpreted and misapplied the law. Following a bench trial, the state district court ruled in favor of the County. The Minnesota Court of Appeals reversed, concluding that the solid waste ordinance only applies to commercial or industrial operations. The Court of Appeals recognized that Kiefer’s current use of the property was not permitted under the zoning code but remanded for a determination on whether Kiefer’s use was a permissible preexisting nonconforming use, as the property was zoned as agricultural at the time of his purchase in 1996. On remand, the Minnesota district court found Kiefer in violation of the zoning code. The Minnesota Court of Appeals affirmed.
On July 31, 2018, Kiefer petitioned in state court for postconviction relief, seeking to vacate his criminal conviction after the Court of Appeals found the solid waste ordinance inapplicable. On October 8, 2018, Kiefer’s petition was granted. His conviction was vacated, and the clerk was ordered to refund the fine, court costs, and court fees imposed and paid by Kiefer. Two years later, Kiefer filed this federal lawsuit under 42 U.S.C. § 1983, claiming unlawful seizure and violations of his due process rights, along with state law claims for false imprisonment, malicious prosecution, and abuse of process. The district court dismissed the case after determining Kiefer failed to sufficiently plead the County had violated his rights. Kiefer appealed.
A plaintiff may establish municipal liability under 42 U.S.C. § 1983 if the violation resulted from (1) an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure to train or supervise. Kiefer raised claims related to official policy and unofficial custom.
Official policy. The Sixth Circuit dispatched with Kiefer’s “official policy” claim because he only argued that the solid waste ordinance was the official policy of the county for the first time on appeal, and further that the county prosecutor was the official with policymaking authority when in fact it is the County Board of Supervisors.
Unofficial custom. To demonstrate the County violated his rights through an “unofficial custom,” Kiefer must show: “(1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity’s employees; (2) deliberate indifference to or tacit authorization of such conduct by the governmental entity’s policymaking officials after notice to the officials of that misconduct; and (3) that plaintiff was injured by acts pursuant to the governmental entity’s custom, i.e., that the custom was a moving force behind the constitutional violation. Kiefer asserted that the County used the solid waste ordinance to allege criminal violations against individual the county knew the statute did not apply to. The Sixth Circuit found the claim to be nothing more than “threadbare recitals” supported by “mere conclusory statements” and not enough to raise a right to relief. Even if Kiefer sufficiently alleged a “continuing, widespread, persistent pattern,” the complain did not allege the County was in some manner deliberately indifferent after notice of a possible violation. Even after it was established that Kiefer should not have been prosecuted under the solid waste ordinance “the doctrine of substantive due process is reserved for truly extraordinary and egregious case; it does not forbid reasonable, though possibly erroneous, legal interpretation.” Without a constitutional violation, there can be no § 1983 liability.