author: EASTERBROOK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert KOLBUSZ, Defendant-Appellant.
    No. 15-2962
    United States Court of Appeals, Seventh Circuit.
    Argued September 20, 2016
    Decided September 21, 2016

      Stephen Chahn Lee, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.
    Allan A. Ackerman, Attorney, Chicago, IL, for Defendant-Appellant.
    Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
   EASTERBROOK, Circuit Judge.

A jury convicted Robert Kolbusz of six counts of mail or wire fraud, see 18 U.S.C. §§ 1341, 1343, and he was sentenced to 84 months’ imprisonment (the same term on each count to run concurrently) plus about $3.8 million in restitution.

Kolbusz, a dermatologist, submitted thousands of claims to the Medicare system and private insurers for the treatment of actinic keratosis, a skin condition that sometimes leads to cancer. He received mány millions of dollars in payments. The evidence. at trial permitted a reasonable jury to conclude that many if not substantially all of these claims could'not have reflected an honest medical judgment— and that the treatment Kolbusz claimed to have supplied may have failed to help any patient who actually had actinic keratosis. We need not recount the evidence. Kolbusz put on a vigorous defense, but the record permitted the jury to find that he committed the crimes as charged.

His lead appellate argument is that the district judge constructively amended the indictment by permitting the prosecutor to present evidence that he submitted false claims on behalf of more than six patients. The indictment charged six particular frauds, so that must be the limit of the evidence, the argument runs. Yet the indictment charged a scheme to defraud (that’s what § 1341 and § 1343 cover). The prosecutor was entitled to prove the scheme as a whole, and not just the six exemplars laid out in the indictment. See, e.g., United States v. Phillips, 745 F.3d 829, 831-33 (7th Cir. 2014); United States v. Salmonese, 352 F.3d 608, 621 (2d Cir. 2003). Kolbusz does not point to any decision holding that the prosecution is forbidden to show that a scheme has more victims than the number of counts in the indictment, and we could not find such a decision in an independent search.

After his arrest and indictment, Kolbusz continued to submit claims to Medicare, and many of these were paid. He contends that the judge erred in preventing him from introducing evidence to that effect. But the judge did not abuse his discretion in excluding this evidence, which has more to say about the (lack of) care with which Medicare intermediaries examine physicians’ claims than about the validity of the charges against him. Kolbusz says that the evidence would demonstrate his “good faith,” but we do not understand how — or for that matter why “good faith” in the abstract matters. See United States v. Blagojevich, 794 F.3d 729, 738-39 (7th Cir. 2015). Kolbusz’s state of mind when he was submitting claims between 2003 and 2010 (the period covered by the criminal charges) was relevant; his state of mind in later years was not. It would have been regrettable to divert the trial into an examination of Medicare’s claims-processing procedures in 2013 and 2014, rather, than whether Kolbusz knew that he was submitting false claims in 2010 and earlier.

Finally, Kolbusz contends that, when resolving civil litigation that grew out of his claims for reimbursement, some of the insurers agreed to waive restitution. He contends that payments from these insurers should be excluded from the district court’s calculation. The problem with this argument is that the United States was not a party to any of the contracts on •which Kolbusz relies. The award of restitution was entered in litigation betweeh Kol-busz and the United States; contracts between Kolbusz and third parties cannot control. So the Supreme Court held in EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002), when concluding that arbitration agreements between employees and employers do not affect the national government, when it sues as employees’ champion. The Court concluded that private agreements do not bind the United States. That’s equally true when the United States seeks a restitution award, and so multiple courts have held. See, e.g., United States v. Rizk, 660 F.3d 1125, 1137 (9th Cir. 2011); United States v. Gallant, 537 F.3d 1202, 1250 (10th Cir. 2008); United States v. Karam, 201 F.3d 320 (4th Cir. 2000); United States v. Parsons, 141 F.3d 386, 393 (1st Cir. 1998); United States v. Sheinbaum, 136 F.3d 443, 448-49 (5th Cir. 1998).

Affirmed


source: Caselaw Access Project

author: FLAUM, Circuit Judge.

license: Public Domain

text:
    Gregory BOWES and Christopher K. Starkey, Plaintiffs-Appellants, v. INDIANA SECRETARY OF STATE, et al., Defendants-Appellees.
    No. 16-2350.
    United States Court of Appeals, Seventh Circuit.
    Argued September 8, 2016
    Decided September 21, 2016

      Gregory Bowes, Greg Bowes Legal Services, P.C., Indianapolis, IN, for Plaintiff-Appellant Gregory Bowes.
    Christopher K. Starkey, Indianapolis, IN, Pro Se.
    Jefferson Stewart Gam, Kyle Hunter, Andrea Elizabeth Rahman, Office of the Attorney General, Indianapolis, IN, for Defendant-Appellee Indiana Secretary of State.
    Kyle Hunter, Andrea Elizabeth Rah-man, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees Individual Members of the Indiana Election Commission and Michael R. Pence.
    Benjamin James Church, Office of the Corporation Counsel, Indianapolis, IN, for Defendants-Appellees Marion County Clerk and Individual Members of Marion County Election Board.
    Before FLAUM, ROVNER, and SYKES, Circuit Judges.
   FLAUM, Circuit Judge.

Plaintiffs Gregory P. Bowes and Christopher K. Starkey lost in the May 2014 Democratic primary election for Marion County Superior Court judges. A few months later, and just before the general election, the district court for the Southern District of Indiana held that the statute establishing the system for the election of such judges, Indiana Code § 33-33-49-13, was unconstitutional. That decision was affirmed by this Court. Plaintiffs then sought a special election, which they argued was the only way to vindicate their constitutional rights. The district court held that a special election was not appropriate and granted defendants’ motion for summary judgment. For the reasons that follow, we agree and affirm.

I. Background

On November 1, 2012, approximately a year and a half before Indiana’s primary election, Common Cause Indiana, a bipartisan nonprofit organization, filed suit seeking a declaration that Indiana’s method of electing Marion Superior Court judges' violated its members’ First Amendment 'right to cast a meaningful vote. The challenged statute, Indiana Code § 33 — 33— 49-13 (“the Statute”), established the system for electing judges to the Marion Superior Court, and provided at section (b) that a political party could not nominate through the primary election process more than half of the candidates eligible to sit on the Marion Superior Court. Political parties eligible to hold primaries were those whose candidates for Indiana Secretary of State received at least ten percent of the votes cast in the last general election; since at least 1952, only the Republican and Democratic parties have met this threshold. Common Cause Ind. v. Individual Members of the Ind. Election Comm’n, 800 F.3d 913, 915 (7th Cir. 2015). Because the primary election process was the only way for candidates from major political parties to access the general election ballot, the law effectively limited the candidates that could ultimately be selected by the voters. Marion County was the only place in the country to employ an election process of this kind. Id. at 914.

On May 6, 2014, while the Common Cause litigation was pending, Marion County held its primary election. .That year, there were sixteen open positions for the Marion Superior Court. Eleven Democratic candidates (including plaintiffs Bowes and Starkey) and eight Republican candidates ran. Plaintiffs spent' almost no effort campaigning for the primary election and did poorly: Starkey finished last in eleventh place with 5,698 votes, and Bowes came in tenth' with 8,551 votes. Under the Statute, only eight Democratic and eight Republican candidates could qualify for the general election, so plaintiffs’ names- were not included on the ballot. ■

Four days before the primary election, Starkey'had filed a motion to intervene in the Common Cause litigation. Starkey’s motion requested an injunction requiring his placement on the general election ballot. On June 18, 2014, the magistrate judge denied Starkey’s motion because Common Cause had. not sought injunctive relief, and the court decided that it was not proper to allow Starkey to change the course of the litigation at that late stage. The magistrate judge also determined that Starkey lacked an interest in the litigation such that it would be impaired' without his participation.

Two months later, and less than three months before the upcoming general election, . on August 11, 2014, Bowes and Starkey filed a suit challenging the constitutionality of the Statute in the Indiana district court. Plaintiffs again requested injunctive relief requiring the State of Indiana to place them on the ballot for the November 4, 2014 general election.

On October 9, 2014, the district court resolved the Common Cause litigation, holding that the Statute was facially unconstitutional. See Common Cause Ind. v. Ind. Sec’y. of State, et al., 60 F.Supp.3d 982 (S.D. Ind. 2014). The district court reasoned that the Statute severely burdened the right to vote without furthering important state interests. See id. at 991. The court permanently enjoined the state from enforcing the Statute, but stayed the ruling pending a final determination from this Court. We affirmed that decision on September 9, 2015. Common Cause Ind., 800 F.3d at 914, 928.

On November 7, 2014 — after the district court had issued its opinion in Common Cause, but while the appeal was still pending, and three days after the November 4, 2014 general election — plaintiffs filed in their own suit a motion for leave to file an amended complaint reflecting the district court’s ruling in Common Cause and adding two new defendants: the Marion County Clerk and the Marion County Election Board. The district court granted that motion. The amended complaint asked the court to void the results of the 2014.gener-al election for Marion Superior Court Judge and order defendants to hold a special election. Specifically, plaintiffs requested that the district court unseat the sixteen superior court judges elected in the 2014 general election so that a special election could be held at the same time as the regularly scheduled general election on November 8, 2016. Under plaintiffs’ proposed special election, only the nineteen candidates who were on the primary ballot in 2014 would be.,placed on the special election ballot in 2016.

The parties filed cross motions for summary judgment, and the district court granted defendants’ motion. The district court relied on our case law characterizing the remedy of a special election as “an extraordinary remedy which the courts should grant only under the most extraordinary of circumstances.” See Bowes v. Ind. Sec’y of State, No. 1:14-cv-013220-RLY-DML, 2016 WL 2894436, at *3 (S.D. Ind. May 18, 2016) (quoting Gjersten v. Bd. of Election Comm’rs for City of Chi, 791 F.2d 472, 478 (7th Cir. 1986) (internal citation and quotation marks omitted)). Considering the equitable factors set forth in Gjersten, the district court determined that plaintiffs’ filings were not sufficiently timely and highlighted the “significant burden a special election would have on the Marion County judiciary, the candidates, the Marion County Clerk, the Marion County Election Board and its volunteers, and the county as a whole.” Bowes, 2016 WL 2894436, at *2-4. This appeal followed.

II. Discussion

On appeal, plaintiffs argue that the district court erred by refusing to order a special election. They contend that their suit was timely because Starkey had moved to intervene in the Common Cause suit before the primary election, and because plaintiffs had filed their own suit several months before the general election. They also argue that the district court ignored certain equitable factors that weighed in their favor and overstated the degree to which holding a special election would burden the county.

A. Standard of Review

As an initial matter, the parties disagree on the appropriate standard of review. Although plaintiffs are correct that we review denials of summary judgment de novo, this case involves a request for equitable relief. We have explained that it is appropriate to “give great deference to the district court’s decision as to the precise equitable relief necessary in a particular case.” Gjersten, 791 F.2d at 479. Although the district court did not grant the requested equitable remedy of a special election, there is no reason that a decision to deny equitable relief would be evaluated under a different standard. Accordingly, we review the district court’s decision to deny equitable relief for an abuse of discretion. See id.; Harper v. City of Chi Heights, 223 F.3d 693, 601 (7th Cir. 2000) (“Appellate review of a district court’s choice of remedy in a voting rights case is for abuse of discretion.”) (citation omitted).

B. Equitable Factors

In denying plaintiffs’ request for a special election, the district court considered the equitable factors that we set forth in Gjersten. In Gjersten, the district court declared unconstitutional a law mandating differing signature thresholds for ward committeeman candidates and township committeeman candidates. In addition to invalidating the law, the court ordered special elections in specified wards. On appeal, we affirmed the decision holding the law unconstitutional,- but reversed the determination that special elections were warranted. We explained that, imposing a special election is a “drastic remedy,” 791 F.2d at 473, and found that the district court had not given enough consideration to the equitable factors underlying the. decision:

The remedy of a special election has been described by courts as “drastic if not staggering,” and as an “extraordinary remedy which the courts should grant only, under the most extraordinary of circumstances.” A federal court reaching into, the state political .process to invalidate an election necessarily implicates important concerns of federalism and state sovereignty. It should not resort to this intrusive remedy until it has carefully weighed all equitable considerations.

Id. at 478 (citations omitted).

Gjersten did not set forth a precise test for determining when a special election is appropriate. Instead, we explained that each case must be examined individually. We highlighted the importance of “carefully considering] both the integrity of the electoral system and the necessities of the process of governing,” and in doing so, assessing whether “the plaintiffs filed a timely pre-election request for relief.” Id. at 479. We elaborated that “[t]he court must ... require the plaintiffs to demonstrate that the unconstitutional practice had a significant impact on the particular election they seek to have declared invalid.” Id. Finally, we explained that “[i]f the plaintiffs establish that they pursued their rights in a timely fashion and that the election is suspect, the court must balance the rights of the candidates and voters against the state’s significant interest in getting on with the process of governing once an electoral cycle is complete.” Id. On our review of the equitable factors in this case, we conclude that the district court did not abuse its discretion in denying plaintiffs’ request for a special election.

The district court first found that plaintiffs’ request for relief was not timely because they filed their complaint and request for a preliminary injunction only three months before the 2014 general election, and filed an amended motion for a preliminary injunction on October 15, 2014 — nine days after early voting in the general election had begun. Plaintiffs argue that because they filed suit eighty-five days before the general election, and Starkey had moved to intervene in the Common Cause litigation six months before the general election (and days before the primary election), the request for relief was timely.

The district court’s conclusion that plaintiffs’ request for relief was untimely is reasonable. In Gjersten, we explained: “Admittedly, it is not always easy to determine whether the plaintiffs have made a timely attempt to protect their rights. Timeliness must be judged by the knowledge of the plaintiffs as well as the nature of the right involved.” Id. at 480 n.12. Thus, we must consider the fact that plaintiffs were aware of the Common Cause suit when it was filed in November 2012, became primary candidates in early February 2014, and did not file suit to vindicate their rights until August 2014, two months after losing the primary election. Although Starkey had moved to intervene in the Common Cause case in May 2014, which was three months after declaring his candidacy (and two days before the primary election), he (and Bowes) waited until two months after losing the motion in June 2014 to file this suit — even though they knew that the general election was fast approaching.

Though plaintiffs’ efforts may not be egregiously late, Gjersten teaches that context matters, and that plaintiffs in general must act quickly once they become aware of a constitutional violation, so as not to disrupt an upcoming election process. See id. (“When circumstances permit, a district court should be afforded sufficient time in advance of an election to rule without disruption of the electoral cycle.”); see also Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990) (“Laches arises when an unwarranted delay in bringing a suit or otherwise pressing a claim produces prejudice to the defendant. In the context of elections, this means that any claim against a state electoral procedure must be expressed expeditiously. As time passes, the state’s interest in proceeding with the election increases in importance as resources are committed and irrevocable decisions are made. The candidate’s ... claim[ ] to be ... a serious candidate ... with a serious injury become[s] less credible by their having slept on their rights.”) (citations omitted).

Plaintiffs argue that they had until September 8, 2014 to timely file a suit, because under Indiana Code § 3-10-8-8(a), the earliest a special election may occur is nine weeks after it is ordered by a court. Plaintiffs contend that the court could immediately have ordered the special election to take place on the same date as the general election. This argument ignores the fact that it is a near impossibility for a court to rule on a suit the same day it is filed. In any event, we do not need to establish an endpoint for the timely filing of a suit, as the inquiry depends on the specific facts of each case. Under the facts here, the district court reasonably concluded that plaintiffs’ suit was untimely. See Morton v. Smith, 91 F.3d 867, 870 (7th Cir. 1996) (“A decision constitutes an abuse of discretion when it is not just clearly incorrect but downright unreasonable.”) (internal quotation marks omitted).

The district court next considered whether plaintiffs had demonstrated “that the unconstitutional practice had a significant impact on the particular election they seek to have declared invalid.” Bowes, 2016 WL 2894436, at *3 (quoting Gjersten, 791 F.2d at 479). The district court concluded that to the extent plaintiffs could show such an impact, they would still be unable to overcome the significant burden that holding a special election would pose on Marion County.

Although we have not expounded on this equitable factor, it is clear that it is not enough that the unconstitutional law had only some impact on the election. See, e.g., Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). On the other hand, if plaintiffs can show a “reasonable possibility” that the Statute affected the outcome of the election, that may demonstrate a “significant impact.” Smith v. Cherry, 489 F.2d 1098, 1103 (7th Cir. 1973). Hadnott v. Amos, 394 U.S. 358, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969), is instructive. In Hadnott, state officials barred National Democratic Party candidates, who were mostly African American, from appearing on the ballot through discriminatory enforcement of the election laws. Id. at 360, 89 S.Ct. 1101. The Supreme Court held that the Alabama election officials’ discriminatory enforcement violated the Constitution. Id. at 366, 89 S.Ct. 1101. In addition, the Court ordered that a special election be held in Greene County, where it appeared that the National Democratic Party candidates would have prevailed had they not been kept off the ballot by the election officials’ unconstitutional behavior. Id. at 367, 89 S.Ct. 1101. In Greene County, 1,938 ballots were marked for the National Democratic Party straight ticket, while the Democratic Party candidates received only 1,699 to 1,709 votes. Id. at 361, 89 S.Ct. 1101.

Plaintiffs’ case is not as compelling as that of the plaintiffs in Hadnott. In support of their contention that they “might well have” prevailed over the Republican candidates in the general election, plaintiffs here cite statistics showing that, on average, Republican candidates received fewer votes than Democratic candidates in the last four judicial elections. (Specifically, in the past four elections, the highest-polling Republican candidate elected received, on average, 78.1% of the votes of the lowest-polling Democratic candidate.) This evidence generally shows that Democratic candidates have fared better than Republican candidates, and suggests that a larger number of Democratic candidates may have been elected in 2014 if not for the Statute. Nonetheless, the fact that Bowes and Starkey spent almost no effort on campaigning weakens their argument that they would have beaten the two lowest-polling Republican candidates and been elected absent the law. At any rate, we need not ■ decide whether plaintiffs have demonstrated a “significant impact” on the election because other equitable factors counsel against ordering a special election.

As discussed, Gjersten held that where plaintiffs can show that they made a timely pre-election request for relief and that the unconstitutional provision had a significant impact on the election, “the court must balance the rights of the candidates and voters against the state’s significant interest in getting on with the process of governing once an electoral cycle is complete.” 791 F.2d at 479. To be clear, -the rights at stake here are plaintiffs’ right to have their names placed on the ballot and the voters’ right to cast a meaningful vote. Id.

The district court determined that plaintiffs could not “overcome the significant burden a special election would have on' the Marion County judiciary, the candidates, the Marion County clerk, the Marion County election board and its volunteers, and the county as a whole.” In particular, the court noted that the Indiana legislature had not yet arrived at a new process for electing judges; that it would be arbitrary to order a special election involving only the judicial candidates from the 2014 election cycle, when all thirty-six judges were elected under the subsequently determined unconstitutional process; that reelection would be disruptive to the administration -of justice; and that a special election would burden the candidates by requiring them to campaign and fundraise in a truncated campaign season.

Plaintiffs disagree that holding a special election would greatly burden Marion County. They contend that if the district court simply ordered the county to hold the special election at the same time as the 2016 general election, there would be little additional expense and minimal voter confusion and disruption. Plaintiffs also claim that any disruption to the judiciary would be minor, as only sixteen out of thirty-six judges would be involved in the special election, and, at most, only three judges would be unseated. Finally, plaintiffs point out that the next judicial election will not occur until 2018, and that the judges elected in 2014 will remain in office until 2020; thus, voters will have to wait several years for a “meaningful election.”

A problem with many of plaintiffs’ arguments is that their special election proposal is arbitrary by virtue of its limited scope. If the existence of the Statute so tainted the Marion County judicial elections as to warrant a special election, then all of the seats subject to election under the old system should be open for reelection. Limiting the special election to the sixteen seats that were filled in the 2014 election means any unfairness from allowing officials elected under the now determined unconstitutional system to remain in office would persist for several years. Plaintiffs’ own proposal thus undermines their argument that it is necessary in the first place to undo any damage created by the unconstitutional election process.

Even if we were to accept plaintiffs’ special election proposal involving only sixteen seats, the district court’s conclusion about the degree of the burden was reasonable. Indiana has not yet amended its election procedures, so if we were to require a special election, we would need to specify an election process for Indiana to use in that election, or order that Indiana enact a new constitutional process right away. Either approach would significantly encroach into Indiana’s election machinery, which ought to be “a matter for legislative consideration and determination.” Reynolds, 377 U.S. at 568, 84 S.Ct. 1362 (holding that the district court “acted wisely in declining to stay the impending primary election in Alabama, and properly refrained from acting further until the Alabama legislature had been given an opportunity to remedy the admitted discrepancies in the State’s legislative apportionment scheme.... ”); see also id. (“[Jjudicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.”). And contrary to what plaintiffs contend, the mere fact that Indiana Code §§ 3-10-8-1 discusses holding special elections in certain narrow circumstances does not evince the state’s “anticipation” of holding a special election in the case at hand.

The timing of this appeal also exacerbates the burden on the county. If a court-ordered special election were to take place on the same day as the general election (per plaintiffs’ proposal), Indiana would have less than three months from the date of oral argument to implement it. It is self-evident that such an order would generate significant costs, as the candidates would likely have to campaign and fundraise, and the government would need to complete all of the necessary notices and paperwork to add names to the ballot in a highly compressed timeframe. If the special election were to take place at a later date, the state and the candidates would have, more time to prepare, but it would .likely be even more inconvenient and expensive to reach out to voters again, locate volunteers, advertise, and so forth.

Finally, as the district court observed, opening up the judiciary to a special election would be “highly, disruptive to the administration of justice.” Bowes, 2016 WL 2894436, at *4. The elected judges would have to take time away from their cases and dedicate resources to another campaign. See Gjersten, 791 F.2d at 479 (“Special elections not only disrupt the decision-making process but also place heavy campaign costs on candidates.... ”). Even if only sixteen judges (out of thirty-six) were affected, this would prove a substantial disruption, as the Marion County judicial system accounts for approximately twenty percent of all cases filed and disposed of in Indiana.

In weighing these burdens against plaintiffs’ interest in being placed on the ballot and the voters’ interest in casting a meaningful vote, the district court reasonably found that the balance tips against holding a special election. The prospective relief granted by Common Cause ensures that all future elections will be held in conformance with the Constitution, protecting from this point forward the voters’ interest in casting a meaningful vote. Although it is possible that the composition of the Marion County judiciary would have been different if not for the unconstitutional law, the Statute’s overall impact is minimal. At most, three additional Democratic judges (the two plaintiffs and the ninth-place finisher), comprising nineteen percent of the total number of judges elected in 2014, otherwise would have been elected that year. And • importantly, the constitutional violation here did not stem from any discrimination or “invidious or fraudulent intent,” Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975), but from a misguided effort to assure judicial impartiality. As for plaintiffs’ interest in being placed on the ballot, both acknowledge that they did almost no campaigning in the 2014 primary, which illustrates, at least in part, how much they valued that right, and both will have the opportunity to run for office again in the regular election in 2018.

In sum, the district court was within its discretion to conclude that plaintiffs’ request for relief was not timely and that the state’s significant interest in governing without disruption outweighed plaintiffs’ interest in being placed on the ballot.

III. Conclusion

For the foregoing reasons, we Affirm the judgment of the district court.

      . Candidates with non-major political party affiliation could gain access to the general ballot in different ways. A “minor” political party could nominate judicial candidates through a state convention; an independent candidate, or a candidate with less support than a minor political parly candidate, could file a certified petition; and finally, a candidate unaffiliated with any party that received 2% of the vote for Secretary of State in the last election could file a declaration of intent to be a write-in candidate. Common Cause Ind., 800 F.3d at 915 (citing Ind. Code §§ 3-8-2-2.5, 3-8-4-1, 3-8-4-10).

      . Since the current version of Indiana’s election law went into effect in 2006, there have been four judicial elections, and in each, the total number of candidates equaled the total number of available seats. That is, all of the nominees consisted of candidates from the two major parties, and every Democratic and Republican candidate ran unopposed (and, due to the Statute, an even split of Democrats and Republicans was elected). Common Cause Ind., 800 F.3d at 915-16. In the forty years since Indiana introduced this election process, there have only been two elections where a non-major party candidate appeared on the ballot, and none has been elected into office. Id. at 916.

      .The thirty-six judges of the Marion Superior Court are elected to six-year terms beginning on January 1 after the year of each judge’s election. These terms are staggered, such that sixteen of the thirty-six judges serve for terms beginning in 2006 (and then 2012, 2018, and so forth), and the other twenty judges, serve for terms beginning in 2008 (and then 2014, 2020, and so forth). Common Cause Ind., 800 F.3d at 914.

      . The original defendants were the Indiana Secretary of State, the Indiana Election Commission, and the Governor of Indiana.

      . Because a Marion Superior Court judge's term lasts for six years and the elections are staggered, no Superior Court judges were up for reelection in 2016.

      . On appeal, plaintiffs take issue with certain of the government’s arguments as having "no foundation in the record,” .including the government’s assertions concerning the likely cost and burden associated with a special election. Not only' did the government raise these same arguments in the district court, where plaintiffs responded to them at length on the merits, but it is common sense that holding a special election, especially in a compressed timeframe, would entail additional cost and effort for both the county and the candidates.


author: LOKEN, Circuit Judge.

text:
    Ruben E. CAMBARA-CAMBARA; Mario Fernando Cambara-Cambara, Petitioners v. Loretta E. LYNCH, Attorney General of the United States, Respondent
    No. 15-1916, No. 15-1917
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 13, 2016
    Filed: September 13, 2016

      Counsel who represented the petitioner was Joshua D. Barber of Lincoln, NE.
    Counsel who represented the respondent was Kate Deboer Balaban, USDOJ, OIL, Washington, DC.
    Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
   LOKEN, Circuit Judge.

Ruben and Mario Cambara-Cambara (“the Cambaras”) are brothers who left their native country of Guatemala and entered the United States without inspection in February 2001 and August 2004, respectively. They filed separate applications for asylum, withholding of removal to Guatemala, and relief under the Convention Against Torture (“CAT”) in 2009. The immigration judge (“U”) denied the applications for asylum as untimely and ruled that the brothers did not prove they were eligible for asylum, withholding of removal, or CAT relief. The Board of Immigration Appeals (“BIA”) affirmed in separate opinions. We consolidated and now deny their separate petitions for review.

“To be eligible for withholding of removal to a particular country, an alien must show a ‘clear probability’ that he would suffer persecution on account of a protected ground such as political opinion or membership in a social group.” Miah v. Mukasey, 519 F.3d 784, 787 (8th Cir.2008), citing 8 U.S.C. §§ 1101(a)(42)(A), 1231(b)(3)(A), and Alemu v. Gonzalez, 403 F.3d 572, 576 (8th Cir.2005). The Cambar-as testified at their March 2012 hearings that they were likely to suffer persecution if they returned to Guatemala due to their membership in two particular social groups: the Cambara family and educated Guatemalan landowners and farmers.

Mario testified that Maras 18 gang members targeted various members of his family in Guatemala, for extortionate. demands because they were wealthy landowners. In 1995, the gang made death threats in demanding money from his uncle; when his uncle stopped making payments, they tried to burn his house down with his family inside and then shot and stabbed him to .death. Three months later, the gang made death threats to another uncle and attacked him when he did not pay their extortion demand, causing physical and psychological trauma. Gang members extorted money from his father for many years by threatening him and his family, and attacked his father with machetes when he stopped paying in December 2008. Ruben testified that,' in 2009, gang members threatened a Cambara cousin’s family when he could no longer make the demanded payments, then shot and killed his son shortly thereafter. Mario testified that the family reported these incidents to the police, but the responsible parties have not been captured, Ruben testified that he agreed with Mario’s testimony and believed his family was extorted because of their property.

Both Mario and Ruben testified that they were never personally harmed or threatened by Maras 18 gang members. Two of Mario’s daughters still live in his hometown with his wife’s mother and have not been threatened. One of Ruben’s daughters lives in.Guatemala, and he sent two American-born daughters to Guatemala for approximately one month to meet his grandmother. The Cambaras have another brother who is an officer in Guatemala’s National Civil Police Force.

The IJ found that both asylum applications were untimely, because they were filed more than a year after the Cambaras entered the United States, and neither brother established changed or extraordinary circumstances that excused his untimely filing. Alternatively, the IJ concluded that the asylum applications, if timely, were denied because, although their testimony was credible, neither brother proved that (1) he had suffered past persecution, (2) he was a member of a cognizable social group, and (3) he would be persecuted in the future on account of his membership in that social group. The IJ concluded there was evidence the fámily may have been targeted based on wealth, but perceived wealth alone is not a cognizable social group. The IJ further concluded that, as the Cambarás did not meet the standard for asylum, they did not meet the higher standards for withholding of removal or CAT relief.

The BIA affirmed the IJ’s opinions and dismissed the Cambaras’ appeals. The BIA rejected their claim that the December 2008 attack on their father constituted changed or extraordinary circumstances because the brothers testified to ongoing threats and harm to family members before they departed Guatemala. The BIA alternatively concluded that the Cambaras were not eligible for asylum because they failed to prove past persecution or a well-founded fear of future persecution on account of their membership in particular social groups. The brothers admitted they had never been threatened or harmed, and the BIA found there was no “nexus” between their feared future harm and their status as members of the Cambara family. “Although members of the Cambara family have been targeted for harm and mistreatment by the gangs in Guatemala, the [brothers have] not established that [their] family members have been specifically targeted due to their familial relationship, particularly where some members of the family have not received threats or been harmed.” The BIA also ruled that “educated landowners and farmers”; is not a cognizable social group, and that-the Cambaras failed to satisfy the higher burden ■ for withholding of removal, and did not prove they were eligible for CAT relief. We review both the BIA and IJ decisions “[because the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning.” Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004).

A. Asylum. An asylum applicant must “demonstrate[ ] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An untimely application may be considered if the alien “demonstrates to the satisfaction of the Attorney General either ... changed circumstances which materially affect the applicant’s eligibility ...... .or extraordinary circumstances” that justify the late application. § 1158(a)(2)(D). ..The Cambaras concede that they filed, their application more than a year after they arrived in .the United States, but they contend that the attack on their father in 2008 constituted changed circumstances.

“No court shall have jurisdiction to review any determination of the Attorney General” as to whether changed or extraordinary circumstances warrant consideration of an untimely asylum application. 8 U.S.C, § 1158(a)(3). Thus, we do not have “jurisdiction to review a determination that an application for asylum is untimely, except when the petition seeks review of constitutional claims or questions of law.” Bin Jing Chen v. Holder, 776 F.3d 597, 601 (8th Cir.2015) (quotation omitted); see 8 U.S.C. § 1252(a)(2)(D). The BIA’s “factual findings or discretionary judgments ... are insulated from judicial review,” including whether the applicant has demonstrated changed or extraordinary circumstances. Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir.2007) (extraordinary circumstances); see Juarez Chilel v. Holder, 779 F.3d 850, 854 (8th Cir.2015) (changed circumstances).

The Cambaras argue the 2008 attack on their father qualifies as changed circumstances because it “provided further evidence of the type of persecution already suffered.” However, this is not a constitutional claim and it does not raise a question of law. Rather, as in Purwantono, “[t]hese contentions amount to a quarrel with the BIA’s discretionary factual determination,” so we lack jurisdiction to review the BIA’s determination that the asylum claims are time-barred. 498 F.3d at 824.

B. Withholding of Removal. We have jurisdiction to review the BIA’s denial of withholding of removal. The BIA held that the Cambaras have “not demonstrated that [they] suffered past persecution or [have] a well-founded fear of future persecution on account of [their] membership in a particular social group consisting of members of the Cambara family.” The BIA further ruled that “educated landowners and farmers” is not a cognizable particular social group. We review the BIA’s determinations “under the deferential substantial evidence standard.” Miah, 519 F.3d at 787. To warrant judicial relief, the Cambaras must show “that the evidence [they] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id., quoting INS v. Elias-Zacarias, 502 U.S. 478, 488-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The Cambaras argue that their credible evidence of extortionate demands and violent attacks by criminal gangs against members of their family for more than twenty years established that they suffered past persecution and have a well-founded fear of future persecution on account of their membership in a particular social group consisting of “members of the Cambara family, a family of educated landowners and farmers.” The BIA assumed that members of the Cambara family constitute a particular social group, see Bernal-Rendon v. Gonzales, 419 F.3d 877, 881 (8th Cir.2005), but found that the Cambara brothers failed to establish a nexus between this social group membership and the alleged persecution, that is, proof that “family members have been specifically targeted due to their familial relationship.”

On appeal, the Cambaras argue that the “clear pattern of targeting [family members] compels the conclusion that persecution was ‘on account of their membership in the Cambara family.” But they provided no proof that the criminal gangs targeted members of the family because of family relationships, as opposed to the fact that, as prosperous businessmen, they were obvious targets for extortionate demands. “The [applicant for asylum or withholding of removal] bears the burden of showing that his membership in a particular social group was or will be a central reason for his persecution.” Matter of W-G-B-, 26 I & N Dec. 208, 224 (BIA 2012), citing 8 U.S.C. § 1158(b)(l)(B)(i). On this record, substantial evidence supports a finding that the Cambara family “is no different from any other [Guatemalan] family that has experienced gang violence.” Constanza v. Holder, 647 F.3d 749, 754 (8th Cir.2011). The Cambaras’ attempt to limit the alleged social group to “members of ... a family of educated landowners and farmers” does not overcome their failure to prove the required nexus. As we said in Davila-Mejia v. Mukasey, 531 F.3d 624, 629 (8th Cir.2008), “[t]here is no record evidence that petitioners’ mistreatment [here, by Maras 18 gang members] and being robbed and extorted are associated with petitioners being members of a social group identifiable as ‘family business owners.’ ” Finally, that the Cambaras each left daughters in Guatemala, and Ruben sent two others back to visit, undermines the claim that they fear family members will be targeted on account of family status. See Bernal-Rendon, 419 F.3d at 881.

C. CAT Relief. An applicant is eligible for CAT relief if he proves that “it is more likely than not that he ... would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). The torture must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” § 1208.18(a)(1). The BIA found that the Maras 18 gang in Guatemala was not acting with the “consent or acquiescence of a public official.” Substantial record evidence supports this determination.

The Cambaras argue that the police force in Guatemala is powerless to stop the gangs. “A government does not acquiesce in the torture of its citizens merely because it is aware of the torture but powerless to stop it, but it does cross the line into acquiescence when it shows willful blindness toward the torture of citizens by third parties.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir.2007) (quotations and citation omitted). The Cambaras presented strong evidence, including a statement by their brother in the National Civil Police Force, that the police investigated reports of violence against the Cambara family but did not capture any perpetrators, at least in part because the gangs “have better weapons than the National Civil Police and the topographic area they hide in favors them.” However, that a police force struggles to control gang activity “is insufficient to compel a finding of willful blindness toward the torture of citizens by third parties,” or a finding of government acquiescence in their criminal activities. Menjivar v. Gonzales, 416 F.3d 918, 923 (8th Cir.2005).

We deny Mario Cambara-Cambara’s and Ruben Cambara-Cambara’s petitions for judicial review.

      . On appeal to the BIA, they abandoned an additional claim that former members of the Guatemalan army are a particular social group.


author: KELLY, Circuit Judge. BEAM, Circuit Judge,

text:
    John Hugh GILMORE, Plaintiff-Appellant v. CITY OF MINNEAPOLIS; Deitan Dubuc; Joshua Stewart; Sergeant Thomas Ryan; Gregory Kosch; Mark Lanasa, Police Officers of the City of Minneapolis in both their offical and individual capacities, Defendants-Appellees
    No. 15-2465
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 9, 2016
    Filed: September 13, 2016
    Rehearing and Rehearing En Banc Denied October 26, 2016

      Counsel who presented argument on behalf of the appellant was Mark Rudnick Miller, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Sarah C.S. McLaren, of Minneapolis, MN.
    Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

John Hugh Gilmore appeals the district court’s adverse grant of summary judgment on his claims alleging violations of his First, Fourth, and Fourteenth Amendment rights, unlawful arrest under Minnesota law, and an unconstitutional policy under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). We agree with the district court that the officers are entitled to qualified immunity for Gilmore’s federal law claims, official immunity for Gilmore’s state law claim, and that Gilmore has not made out a claim under Monell. We therefore affirm the judgment of the district court.

I. Background

• Around 10 p.m. on June 16, 2011, police received a 911 call from Matthew Glazer, reporting a disturbance and a suspicious white male with gray hair, wearing sandals and all-black clothing, on Nicollet Mall. Glazer stated that the person described was yelling at people on the street, shouting racial slurs, and taking photos of the people he was targeting. When officers arrived on the scene in response to the 911 call, Glazer flagged them down. Glazer reported to the officers that a man, who was later identified as John Hugh Gilmore, had asked two women wearing hijabs their opinion of Ayaan Hirsi AÍi, and then began screaming racial slurs at them. Glazer also claimed that Gilmore had tried to assault him, and stated he thought Gilmore would try to hurt him again. Whether or not Gilmore actually engaged in the conduct described, he does not dispute that this is what Glazer told the officers when they arrived at the scene.

The officers proceeded to The News Room restaurant, where Glazer said Gilmore had gone. According to Gilmore, approximately five minutes after he arrived at the restaurant, Officers Deitan Dubuc and Joshua Stewart entered and asked to speak to him. When he refused, they escorted Gilmore out of the restaurant, using a wrist lock to force him to leave. Gilmore had drunk 3-4 glasses of wine that night, but he says he was not intoxicated.

After they left the restaurant with Gilmore, Officers Dubuc and Stewart sought to gather more information. According to the officers, Gilmore refused to speak with them about what had happened. Gilmore, on the other hand, alleges that he was not given an opportunity to tell the officers his side of the story, but that he was cooperative with them. Based on the information the officers had regarding the events of the evening and the fact that, from their perspective, Gilmore was “mad” and “refused to cooperate,” they handcuffed him and placed him in the back of them squad car.

The officers then interviewed several witnesses. Gilmore’s friend, Paul Carlson, said he could not hear what was being said between Gilmore and the group of people he was allegedly yelling at, because he was across the street, but that Gilmore was 8-10 feet away from the group and his hands were in his pockets. The two women wearing hijabs reported that after they told Gilmore they did not think favorably of Ayaan Hirsi Ali but they “would agree to disagree,” Gilmore yelled, <fWhy did you come to my country and try to change us? You’re in the [W]est here.” They relayed that Gilmore also made other comments that made them “fearful” and “terrified.” When Gilmore started taking photos of the women, Glazer inserted himself between the women and Gilmore. Another witness, Elisabeth Geschiere, confirmed the two women’s story. The officers also spoke again to Glazer, who then filled out a citizen’s arrest form on which he indicated that, during the confrontation, he asked Gilmore whether he knew the difference between assault and battery. Gilmore’s alleged reply was, “I haven’t hit anyone ... yet. Just wait.” Geschiere also expressed fear that Gilmore would hurt someone at the scene. Gilmore disputes the truth of the witnesses’ statements, but does not dispute that this was the information given to the officers while he sat in the back of the police car.

Gilmore recounted a different version- of events. He asserted that after attending a political gathering, he passed several women' wearing hijabs near 11th Street and Nicollet Avenue, and asked them their opinion of Ayaan- Hirsi Ali. Gilmore claimed that a “flash mob” of people from a progressive political conference suddenly appeared, surrounded him, and began aggressively yelling.- Gilmore said that he pretended to make a phone call to a friend and to videotape the activists with his phone. He said he feared for his safety and was chased down Nicollet Mall before entering The News Room.

Gilmore also alleged that the officers first said they would release him if he agreed to leave the downtown area, and then changed their minds and decided to take Gilmore to jail. Before leaving the scene outside The News Room and while sitting in the police vehicle, Gilmore saw an officer rip up and throw away a political sign bearing the name of Gilmore’s website that Gilmore had with him at the restaurant. Gilmore said he complained about the sign to the two officers in the front of the transport vehicle. The officers have stated they have no memory of the sign being destroyed, and further that prisoners in the back of á police transport vehicle have no way to communicate with officers sitting in the cab.

At the police station, Gilmore was charged with disorderly conduct and interference with lawful process, both misdemeanors. Officer Dubuc noted in his supplemental report that Gilmore was booked in part because he was intoxicated, which Gilmore denies, and because Dubuc feared that Gilmore would not comply with an order to leave the area and would instead return to the crowd and continue engaging in the allegedly disorderly conduct. Once at the Hennepin County Jail, Gilmore was processed for release. The charges against Gilmore were subsequently dropped.

II. Discussion

Gilmore contends the district court erred in granting summary judgment on his various claims. Viewing the facts in the light most favorable to the non-moving party, we review the district court’s grants of summary judgment de novo. Carpenter v. Gage, 686 F.3d 644, 648 (8th Cir. 2012); Fed. R. Civ. P. 66(a).

A. Fourth Amendment, False Arrest Claim

“Qualified immunity shields government officials from liability and the burdens of litigation in a § 1983 action unless the official’s conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known.” Snider v. City of Cape Girardeau, 752 F.3d 1149, 1155 (8th Cir. 2014) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “To overcome a defendant’s claim of qualified immunity, the burden falls on [Gilmore] to show: ‘(1) the facts, viewed in the light most favorable to [Gilmore], demonstrate the deprivation of a constitutional right; and (2) the right was clearly established at the time of the deprivation.’ ” Id. (quoting Baribeau v. City of Minneapolis, 596 F.3d 465, 474 (8th Cir. 2010)).

Gilmore alleges first that his arrest was not supported by probable cause. “A warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause, and an officer is entitled to qualified immunity if there is at least ‘arguable probable cause.’ ” Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir. 2011) (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)). A law enforcement officer has probable cause “when the totality of the circumstances at the time of the arrest ‘are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.’ ” Id. at 523 (quoting Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). If an officer arrests a suspect, under -the mistaken belief that there is probable cause, arguable probable cause exists “if the mistake is ‘objectively reasonable.’ ” Id, (quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008)).

Gilmore was arrested for disorderly conduct and obstructing legal process. Both are misdemeanors under Minnesota law. See Minneapolis, Minn., Code of Ordinances , Title 15 . § 385.90; Minn. Stat. § 609.72 subd. 1(3); Minn. Stat. § 609.50, subd. 1(1). Under Minneapolis’s local ordinance, a person may be arrested for disorderly conduct when he “engage[s] in, or prepare[s], attempt[s], offer[s] or threaten[s] to engage in, or assist[s] or conspire[s] with another to engage in, or congregated] because of, any riot, fight, brawl, tumultuous conduct, act of violence, or any other conduct which disturbs the peace and quiet of another.” Minneapolis, Minn., Code of Ordinances Title 15 § 385.90. Gilmore’s inmate booking sheet indicates he was arrested under the Minneapolis ordinance, but the state law governing disorderly conduct is slightly different. Under Minnesota law, a person is prohibited from engaging in “offensive, obscene, . abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others,” when the person knows that such conduct or language “will tend to[ ] alarm, anger or disturb others or provoke an assault or breach of the peace.” Minn. Stat. § 609.72 subd. 1(3).

When deciding whether to arrest a subject, “[o]fficers may ‘rely on the veracity of information supplied by the victim of a crime.’ ” Borgman, 646 F.3d at 523 (quoting Fisher, 619 F.3d at 817); see also Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) (“[A]n officer may make an arrest if a credible eyewitness claims to have seen the suspect commit the crime_”). “In considering information, given by a victim of a crime, an officer need not conduct a ‘mini-trial’ before effectuating an arrest although he-cannot avoid ‘minimal further investigation’ if it would have exonerated the suspect.” Borgman, 646 F.3d at 523 (quoting Kuehl, 173 F.3d at 650). “An officer contemplating an arrest is not free to disregard plainly exculpatory evidence ....” Kuehl, 173 F.3d at 650.

Glazer’s 911 call and in-person account to the officers would provide probable cause for an arrest for disorderly conduct. Though Gilmore is correct that there were conflicting versions of events that occurred on the night of June 16, 2011, that fact, on its own, does not establish there was plainly exculpatory evidence available to the officers at or near the time of Gilmore’s arrest'. “When an officer is faced with conflicting information that cannot be immediately resolved ... he may have arguable probable cause to arrest a suspect.” Borgman, 646 F.3d at 523 (citing Amrine, 522 F.3d at 832-33). There was no plainly exculpatory evidence — such as evidence that Gilmore did not fit the description the 911 caller had given, or that Glazer was clearly not a credible witness — that the officers here ignored. The report of Gilmore’s attempting to' assault Glazer, and yelling-at, taking pictures of, and threatening various other people would give officers at least arguable probable cause for his arrest. See, e.g., In re Welfare of T.L.S., 713 N.W.2d 877, 880-81 (Minn. Ct. App. 2006); State v. McCarthy, 659 N.W.2d 808, 811 (Minn. Ct. App. 2003). Based on the record before us, there was nothing the officers could have immediately discovered that would have exonerated Gilmore by conclusively contradicting Glazer’s statement.

Gilmore argues that there was insufficient evidence to charge him with any offense, in part because he was processed for immediate release and videos portraying the incident came to light after the fact and supported his version of events. But “probable cause is determined ‘at the moment the arrest was made,’ [and] any later developed facts are irrelevant to the probable cause analysis for an arrest.” Amrine, 522 F.3d at 832 (quoting United States v. Rivera, 370 F.3d 730, 733 (8th Cir. 2004)). The evidence Gilmore points to, such as the videos and his processing for immediate release at the police station, was developed after the arrest and is therefore not relevant to the question of arguable probable cause. The city’s attempt to put forth later-developed witness statements likewise does not affect the probable cause analysis, and is relevant only to determine whether “minimal further investigation” would have exonerated Gilmore. When the officers detained Gilmore based on the 911 call and Glazer’s statement, they had arguable probable cause to arrest Gilmore.

Compheating the situation is the fact that Minnesota law requires an arresting officer to witness a misdemeanor in order to arrest a suspect for it, and Gilmore argues this is independent grounds for concluding his arrest was in violation of the Fourth Amendment. Minn. Stat. § 629.34(c). The city contends that Glazer’s citizen’s arrest satisfied the “in-presence” requirement. We need not decide whether the citizen’s arrest satisfied the “in-presence” requirement in order to resolve Gilmore’s Fourth Amendment claim, however, as this circuit has not decided “whether the Fourth Amendment permits, a warrantless arrest for a misdemeanor when the alleged offense did not occur in the presence of the arresting officer.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1258 (8th Cir. 2010). “A constitutional or statutory right is clearly established if ‘[t]he contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Snider, 752 F.3d at 1155 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Because the law regarding warrantless misdemeanor arrests for offenses committed outside the presence of the arresting officer is not clearly established under the Fourth Amendment, the arresting officers are entitled to qualified immunity on Gilmore’s constitutional claim. See, e.g., Farkarlun v. Hanning, 855 F.Supp.2d 906, 923 (D. Minn. 2012).

B. State Law False Arrest Claim

Gilmore also asserts that his arrest was unlawful under Minnesota state law. The district court determined that the officers were entitled to official immunity on this claim. Under Minnesota law, official immunity “protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a wilful or malicious wrong.” Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991). “[T]he conduct of police officers in responding to a dispatch or making an arrest involves precisely the type of discretionary decisions, often split-second and on meager information, that we intended to protect from judicial second-guessing through the doctrine of official immunity.” Kelly v. City of Minneapolis, 598 N.W.2d 657, 665 (Minn. 1999) (citing Elwood v. Rice Cty., 423 N.W.2d 671, 678-79 (Minn. 1988)). However, an officer may be guilty of a “wilful or malicious wrong,” and excepted from the protections of immunity, when he or she knows or has reason to know he or she is doing something illegal:

The defendant must have reason to know that the challenged conduct is prohibited. The exception does not impose liability merely because an official intentionally commits an act that a court or a jury subsequently determines is a wrong. Instead, the exception anticipates liability only when an official intentionally commits an act that he or she then has reason to believe is prohibited.

Rico, 472 N.W.2d at 107. In order to overcome the officers’ claim of official immunity, therefore, Gilmore must show the officers had reason to know that arresting him was prohibited. A person is falsely arrested under Minnesota law “if an arrest is made without proper legal authority.” Baribeau, 596 F.3d at 481 (quoting Lundeen v. Renteria, 302 Minn. 142, 224 N.W.2d 132, 135 (1974)). Gilmore asserts that, unlike our Fourth Amendment law, there is a clear “in-presence” requirement for misdemeanor arrests in Minnesota. The “in-presence” requirement means that a misdemeanor arrest “conforms to Minnesota law as long as police officers have observed conduct giving rise to probable cause to believe that the offense was committed.” Id. at 481-82. The officers here are not entitled to official immunity if they had reason to know that the “in-presence” requirement was not satisfied by a citizen’s arrest. Minnesota’s state law precedent, however, does not provide any such reason.

Minnesota Statutes § 629.37(1) allows a private person to make an arrest for a crime “committed or attempted in the arresting person’s presence.” See also Lake Minnetonka Cons. Dist. v. Horner, 617 N.W.2d 789, 794 (Minn. 2000) (noting application as to misdemeanors). The private person must “inform the person to be arrested of the cause of the arrest and require the person to submit.” Minn. Stat. § 629.38. Since Officers Dubuc and Stewart did not personally witness Gilmore’s disorderly conduct and therefore could not satisfy the “in-presence” requirement themselves, the city relies on Glazer’s citizen’s arrest. Gilmore alleges that the citizen’s arrest was invalid because Glazer did not fill out the citizen’s arrest form until after Gilmore was handcuffed and therefore arguably already arrested, and because he did not inform Gilmore of the cause of his arrest, as the citizen’s arrest statute requires. See Minn. Stat. § 629.38.

A citizen’s arrest may be valid, even if it is an officer who takes custody of the suspect. In State v. Duren, officers asked a private citizen who had witnessed an alleged misdemeanor to sign a citizen’s arrest form, because the officers had not witnessed the commission of the offense themselves. 266 Minn. 335, 123 N.W.2d 624, 631 (1963). The court noted “[i]t is clear from the record that after defendant’s arrest by [the citizen] she in effect delivered him to the police officers present who already had him in custody,” and concluded that the fact that “such arrest was made by [the citizen] at the request of the police officers who had arrived after the accident would not affect its validity if § 629.37 were followed.” Id.; see also United States v. Rambo, 789 F.2d 1289, 1293 n.5 (8th Cir. 1986) (noting that under Minnesota law “[p]olice officers are authorized to take custody of an individual arrested by a private person, which means in practice that police officers often are the ones , who actually effect the arrest, acting on behalf of the citizen-complainant” (citations omitted)). The district court concluded that Glazer had witnessed all of Gilmore’s relevant behavior, and could effect a citizen’s arrest by asking the officers to detain Gilmore after the fact. See Duren, 123 N,W.2d at 631. Gilmore also argues that Glazer did not comply with the statutory requirement of “informing] the person to be arrested of the reasons therefor,” but Glazer did not need to complete that requirement personally. Under Minnesota law, the officer could do that on his behalf. See id. (“[The police officers] already had [the defendant] in custody and ... acting on [the private citizen’s] behalf, advised [the defendant] of the reasons upon which [the private citizen] had based his arrest, indicative of compliance with the statutory requirements outlined.”).

Gilmore points to the case of State v. Jensen, arguing that “[t]he purpose of the presence requirement is to prevent war-rantless misdemeanor arrests based on information from third parties.” State v. Jensen, 351 N.W.2d 29, 32 (Minn. Ct. App. 1984). “Whén the basis of the officer’s belief that the defendant has committed a misdemeanor is information imparted to him by, say, victims, witnesses or informers ... [h]e may not act on his own appraisal of the reasonableness of the information.” Id. (quoting People v. Dixon, 392 Mich. 691, 222 N.W.2d 749, 751 (1974)). The problem in that case, however, was the same one that invalidated the arrest in Duren — namely, that no one person witnessed all of the elements of the crime. Here, Glazer witnessed everything necessary to arrest Gilmore for disorderly conduct. While the Minnesota case law on the precise contours of, a valid citizen’s arrest is limited, what law does exist gave the officers no “reason to believe” that the arrest in this case was prohibited. Rico, 472 N.W.2d at 107.

Whether the officers’ continued detention of Gilmore pursuant to Minnesota Rule of Criminal Procedure 6.01 was valid is, as the district court noted, “an even more difficult question.” Rule 6.01 requires that an arresting officer in misdemeanor cases, proceeding without a warrant, “must issue a citation and release the defendant unless it reasonably appears: (1) the person must be detained to prevent bodily injury to that person or another; (2) further criminal conduct will occur; or (3) a substantial likelihood exists that the person will not respond to a citation.” Minn. R. Crim. P. 6.01. “If the officer has already arrested the person, a citation must issue and the person must be released,” unless any of the exceptions are present. Id The officers here stated that Gilmore initially refused to give his name and that they believed he was likely to commit further criminal conduct due to intoxication. Glazer stated that Gilmore had attempted to assault him, and that he was afraid Gilmore might try to hurt him again, Geschi-ere told one of the officers that she had been afraid that Gilmore would hurt Someone at the scene. Gilmore, however, states that he was cooperative, that he was not intoxicated, and that he was not given the opportunity to provide any information on his own behalf. See Minneapolis Police Dep’t. v. Kelly, 776 N.W.2d 760, 768-69 (Minn. Ct. App. 2010) (noting “the defendant’s attachment to the community and prior history of response to the criminal process are relevant guideposts for ... a determination” as to whether a defendant will respond to a citation, and arresting officers should investigate and consider such information).

While we conclude that there remain disputed issues of fact regarding whether the officers had reason to know Rule 6.01 made their actions unlawful, another statute, Minnesota Statutes section 629.36, also applies to the facts of this case. In contrast to the officers’ obligations under Rule 6.01, section 629.36 provides: “When a bystander arrests a person for breach of the peace, the bystander may deliver that person to a peace officer. The peace officer shall take the arrested person to a judge for criminal processing.” .While this statute leaves us with more questions than it resolves, and precedent from the Minnesota courts analyzing the statute is lacking, it does seem in direct conflict with Rule 6.01, creating confusion as to the officers’ statutory obligations under the circumstances. See Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 318 (Minn. Ct. App. 1997) (noting official immunity applies when the official demonstrates “that the right allegedly violated was not clearly established, that is, that there was no basis for knowing the conduct would violate the plaintiffs rights”). Rule 6.01 requires release on citation unless certain circumstances exist; section 629.36 seems to require a person be taken .into immediate custody, at least for a brief period, by the peace officer. Whether a “bystander” is a citizen for purposes of a citizen’s arrest and what is meant by “criminal processing” are not clear from the statute, but that very lack of clarity is.what prevents us from concluding that the officers knew or had reason to know that their conduct in continuing to detain Gilmore was prohibited. We have no conclusive reason to believe that Rule 6.01 does not apply to citizen’s arrests for misdemeanors, and Gilmore’s continued detention may not have been “‘objectively’ legally reasonable,” see Gleason, 563 N.W.2d at 318, but we cannot conclude that Gilmore’s arrest was “clearly established” as unlawful given the existence of section 629.36.

The combination of this statute and Rule 6.01 creates potentially odd results: identical misdemeanor conduct could leave an individual either with a citation (or else a false arrest claim) or being taken immediately to a judge for “criminal processing,” depending solely on who witnesses the crime and effects the arrest. Yet we must leave that troubling thought to the Minnesota legislature to resolve. Since we do not believe the officers had sufficiently clear knowledge of what was required of them under the, circumstances, neither can we conclude that they acted maliciously or wilfully in violating Gilmore’s rights. See Rico, 472 N.W.2d at 109; see also Gleason, 563 N.W.2d at 318. As a result, the officers are entitled, to official immunity on Gilmore’s state law false arrest claim.

C. First Amendment Claim

Gilmore argues that the district court erred in finding that the officers did not violate his First Amendment right to freely express himself when they destroyed his political sign. Unlike Snider, 752 F.3d 1149, on which Gilmore relies, this case does not involve the application of an unconstitutional ordinance. Gilmore was not arrested for displaying his sign or for any message he conveyed by having it. Instead, he was arrested for disorderly conduct, and the officers seized the sign in the course of that arrest. Destruction of the sign may implicate other of Gilmore’s rights, but he provides no authority for the proposition that the seizure of a political or viewpoint-based sign incident to a lawful arrest is a per se First Amendment violation. Moreover, he points to nothing' that would give officers notice that any such right was clearly established at the time. Id. at 1155 (stating that whether a right was clearly established at the time of arrest turns on whether “in the light of preexisting law the unlawfulness [of the officers’ conduct was] apparent” (quoting Creighton, 483 U.S. at 640, 107 S.Ct. 3084)). Because Gilmore has failed to show a violation of any clearly established First Amendment right, the officers are entitled to summary judgment on Gilmore’s First Amendment claim. See Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir. 2000).

D. Property Seizure and Damage

Gilmore also argues that police improperly seized and destroyed his political sign in violation of his Fourth Amendment right to be free of unreasonable searches arid seizures. Because Gilmore’s arrest was not unconstitutional, the seizure of his sign was also valid. See Meehan v. Thompson, 763 F.3d 936, 946 (8th Cir. 2014) (“[A] search incident to [an] arrest requires no additional justification.” (second alteration in original) (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973))); United States v. Baldenegro-Valdez, 703 F.3d 1117, 1125-26 (8th Cir. 2013); Moreno v. Turner, 572 Fed.Appx. 852, 857 (11th Cir. 2014) (unpublished) (“Because the war-rantless arrest was supported by at least arguable probable cause, [the officer] was also entitled to search [the arrestee] incident to arrest.”). Moreover, if the seizure was valid, we doubt Gilmore can assert a Fourth Amendment claim over the sign’s destruction. See Ali v. Ramsdell, 423 F.3d 810, 814 (8th Cir. 2005) (“We have considerable doubt whether an allegation that property appropriately seized in executing a valid search warrant but not inventoried and stored in the manner required by state law even states a claim under the Fourth Amendment.”); Hudson v. Palmer, 468 U.S. 517, 538-39, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (O’Connor, J., concurring) (“[I]f the act of taking possession and the indefinite retention of the property are themselves reasonable, the handling of the property while in the government’s custody is not itself of Fourth Amendment concern. ... [A]ny losses that occur while the property is in official custody are simply not redressable by Fourth Amendment litigation.”). Gilmore therefore has not presented a clearly established right preventing the destruction of his sign under the Fourth Amendment. Furthermore, while a Fourteenth Amendment due process claim for the destruction of property may be an alternative avenue for redress, Gilmore failed to raise such a claim, and we therefore decline to analyze one.

E. Monell Claim

“A plaintiff may establish municipal liability under § 1983 by proving that his or her constitutional rights were violated by an ‘action pursuant to official municipal policy’ or misconduct so pervasive among non-policymaking employees of the municipality ‘as to constitute a “custom or usage” with the force of law.’ ” Ware v. Jackson Cty., Mo., 150 F.3d 873, 880 (8th Cir. 1998) (quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018). Because Gilmore has failed to show any violation of his federal rights, this claim necessarily fails. See Sanders v. City of Minneapolis, 474 F.3d 523, 527 (8th Cir. 2007).

III. Conclusion

We affirm the judgment of the district court.

BEAM, Circuit Judge,

dissenting.

I. BACKGROUND

Plaintiff John Hugh Gilmore is an attorney in Minnesota and a recognizable politically conservative blogger and author. On June 16, 2011, two separate conferences or meetings were being held simultaneously on Nicollet Mall in downtown Minneapolis.

Gilmore attended one gathering called Right Online Conference, intending to later go meet and have dinner with friends. Matthew Glazer, a resident of Austin, Texas, was attending the other conference on the Mall, identified as NetRootsNation.

As Gilmore was on his way to dinner as planned, he came in contáct with two women wearing hijabs, a head covering worn in public by some Muslim women. A discussion ensued betweén Gilmore and the hi-jab-attiréd women concerning,' as noted by the court, Ayaan Hirsi Ali, a third Muslim woman. Ms. Hirsi Ali is 'an activist supporter of women’s rights, including reformation of traditional Islamic practices. She is also the author of a New York Times bestseller entitled Infidel, a much discussed and debated publication across the religious world. The women told Gilmore that they disagreed with Ms. Hirsi Ali, seemingly in no uncertain terms.

The discussions between Gilmore and the Muslim women, as reported by Glazer, became heated and Glazer gratuitously intervened on behalf of the hijab-clad women, resolutely demanding that Gilmore should “walk away” from the women. Gilmore responded in kind, telling Glazer he “should walk away;” This prompted Glazer to seek outside support through a 911 telephone call requesting police intervention. He told the police dispatcher that “a white male with gray hair, who was wearing sandals and all black, was yelling at passersby [the Muslim women] and using racial slurs” — utterances almost always in bad taste but in this case- clearly statements protected by-the First Amendment, even assuming the statements occurred as claimed. Glazer also told the dispatcher that Gilmore was “taking photographs” of the people he was communicating with, almost never a criminal offense when done on public occasions in public places. Since Nicollet Mall may be one of the most, if not the most, public place in the State of Minnesota and the discussion involved a well-known public figure and bestselling author, it is difficult to envision that such photography could be deemed criminal in nature, especially by trained police officers. This information was relayed to two police officers on patrol. Armed with these reasonably benign facts, they proceeded to the Mall.

When defendant Minneapolis police officers Dubuc and Stewart arrived on the scene via police car, they were hailed by Glazer who repeated to them that Gilmore had been screaming racial slurs at two women wearing hijabs and that he (Glazer) at some later point in time feared that Gilmore would assault him. The evidence does not disclose the nature of this avowed fear and there is, of course, no evidence that any assault or attempted assault occurred. Furthermore, Glazer stated under oath that he did not Inform the officers of this fear of assault until after they had already arrested Gilmore at a restaurant and returned to the Mall.-

But, even if the assault claim is at all relevant in this matter, I find no precedent, and the court cites none, supporting the proposition that an alleged “fear” of an assault would have incubated any form of constitutional or other violation by Gilmore — at least under the politically charged circumstances at work in this case. It is telling that there is also no evidence that Glazer ever informed the police officers of his own intentional, unprovoked, interventionist intrusion into Gilmore’s First Amendment-protected discussion with the Muslim women and later with Gilmore.

Between the time of the 911 phone call and arrival of the police, Gilmore had departed from the area to meet his friends at The News Room restaurant as originally planned. Thus, Glazer was the sole source of information about Gilmore presented to the defendant police officers both through the 911 call and the in-person communications at the Mall prior to Gilrhore’s unconstitutional arrest at the restaurant.'

The record establishes that Officers Du-buc and Stewart split up as they entered the restaurant referred to by Glazer to search for the white male with' gray hair wearing all black and sandals. Dubuc was first to locate Gilmore eating at a table. Diibuc approached Gilmore and without inquiry of any kind, ordered him to accompany Dubuc outside the restaurant. Gilmore responded, “No I’m good here.” Du-buc claims to have repeated his request and that Gilmore stated that he (Gilmore) was a lawyer, knew his rights and stated to Dubuc “you do not have PC” (probable cause), Dubuc then told Gilmore that if he did not walk out with him, he (Dubuc) “would have to physically remove him from the establishment.” When Gilmore did not submit to this threatened custody, Dubuc states that he applied “a left wristlock and began pulling Gilmore’s arm in an upward motion,” and Gilmore, submitting to Du-buc’s physical acts of custody, was removed from'the restaurant and confined in a police car. To make his custody more secure, he was placed in handcuffs by. the police officers.

Gilmore remained in this custodial arrangement until he was later transferred to a police transport vehicle, taken to Hen-nepin County Jail and booked for disorderly conduct and obstruction of legal process, both misdemeanors under Minnesota law. He was released from jail the next morning and later all charges were prudently dropped after the prosecutor learned there was a substantial dispute in the facts surrounding the arrest and also some concerns related to the credibility of some of the witnesses. Prior to the arrest by Officer Dubuc in the restaurant, Gilmore was never asked for his side of the story concerning the events on Nicollet Mall.

As Gilmore was confined in the police car at the Mall as a result of his arrest in the restaurant, the police officers, perhaps realizing the constitutional infirmity of the restaurant arrest, solicited Glazer to prepare, and tutored him in the completion of, a “citizen’s arrest form” supplied by them. And while not relevant to the false arrest at the restaurant, as I will shortly explain, it should be noted that when the police officers, subsequent to the arrest, finally got around to talking to persons at the scene other than Glazer and the co-complainant Muslim women, the officers were approached by an acquaintance of Gilmore’s, identified as Paul Carlson. Carlson informed the police that he observed the alleged confrontation that occurred prior to their arrival and stated that he “could not hear what was being said but [saw] that Gilmore was eight to ten feet away from the group of people [involved] and [Gilmore] had his hands in his pockets.”

With regard to the occurrences at the restaurant, the court contends that there “is a disputed fact whether Gilmore was given the opportunity to relay his version of events to the officers before being placed in handcuffs or in the squad car.” Ante at 833 n.4. There is no evidence of any such dispute, but the issue is irrelevant. Officer Dubuc states under oath that he arrested Gilmore with the wristlock at the dinner table Without offering any such opportunity before dragging him to the squad car waiting in the street. Accordingly, it is clear Gilmore was not asked to give “his version of events” prior to the unconstitutional Fourth Amendment violation.

In any event, the court correctly concedes that “[b]ecause wé must construe the facts [at issue] most favorably to Gilmore [under the motion to dismiss his claims via summary judgment], we assume the officers failed to ask for his side of the story.” Ante at 838 n. 4. And as the court further states “[i]n considering information given by a victim of a crime, an officer need not conduct a ‘mini-trial’ before effectuating an arrest although he cannot avoid ‘minimal further investigation’ [like seeking the potential arrestee’s side of the story] if it would have exonerated the suspect.” Ante at 833 (quoting Borgman v. Kedley, 646 F.3d 518, 523 (8th Cir. 2011)).

Here, the only purported victims of a crime prior to the arrest were Glazer and, possibly, the Muslim women. Thus, minimal further investigation, by asking for Gilmore’s side of the story and construing the facts most favorably to Gilmore as required, would have disclosed that his action with Glazer — the vigorous public debate and perhaps the alleged photography — were acts fully protected by the First Amendment.

II. DISCUSSION

Although not particularly relevant under the circumstances of this dispute, I concede that the court accurately sets forth the elements of misdemeanor conduct under the City of Minneapolis ordinances and the Minnesota state statute. I also concede that probable cause for such offenses is factually “determined ‘at the moment [an] arrest [is] made,’ [and] any later developed facts are irrelevant to the probable cause analysis for an arrest.” Amrine v. Brooks, 522 F,3d 823, 832 (8th Cir. 2008) (quoting United States v. Rivera, 370 F.3d 730, 733 (8th Cir. 2004)).

In this case, the arrest at issue occurred at the moment the physical, wristlock custody of Gilmore commenced in The News Room restaurant. Thus, at that crucial time, defendant police officers had only facts related by the police dispatcher and those obtained during their brief encounter with Glazer on Nicollet Mall, At that point, there was neither probable cause nor “arguable” probable cause established, and any Minneapolis ordinance or state statutory verbiage to the contrary would violate Gilmore’s First Amendment rights.

Officer Dubuc was informed by Gilmore that he possessed no probable cause to arrest. While probable cause is a question of law, it must be fundamentally based upon factual episodes emanating from specific unlawful actions. Here, Gilmore’s heated public discussions concerning Ms. Hirsi Ali, coupled with “taking photographs” on a public street and rejecting Glazer’s demand that he “walk away,” were all acts fully protected by the First Amendment’s Free Speech and Assembly Clauses.

In a supplemental report Officer Dubuc stated that Gilmore may have been intoxicated, was “mad” and would not communicate with him about the happenings at Nicollet Mall. Such statements were, of course, superfluous concerning the earlier arrest. Gilmore, believing he had been arrested and incarcerated in the police car without probable cause, had every right under the Fifth Amendment to remain silent. It must also be noted, as does the court . itself, that Gilmore was never charged with intoxication, only disorderly conduct and obstruction of legal process.

In the face of these questions of fact and law, the court contends that the officers, even if ultimately proven wrong, are nonetheless' entitled to a qualified immunity defense. The precedent of this circuit repudiates such a result.

“We review de novo the district court’s grant of summary judgment based on qualified immunity.” LaCross v. City of Duluth, 713 F.3d 1155, 1157 (8th Cir. 2013). And there can be no argument supportive of the idea that the Fourth Amendment permits a police officer to arrest and incarcerate a citizen without probable cause. “The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated _” U.S. Const, amend. IV. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages [only] insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Duffie v. City of Lincoln, No. 15-2431, 834 F.3d 877, 881, 2016 WL 4435650, at *3 (8th Cir. Aug. 23, 2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). And, in the face of the record and controlling constitutional law, there can be no way that a reasonable person, especially a reasonable police officer, would not have known that Gilmore’s arrest was wholly unconstitutional.

“Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person [arrested] of criminal activity.” Id. at 883, 2016 WL 4435650, at *4 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). But, Officers Dubuc and Stewart relied solely on self-serving and incomplete statements from Glazer that did not contain information sufficient to create probable cause or even arguable probable cause to believe that Gilmore had committed a crime — specifically “disorderly conduct” as charged. And, had the officers reasonably sought the other side of the story as required by law, there would have been even less reason to physically accost and arrest Gilmore at dinner. See Borgman, 646 F.3d at 523. Accordingly, the officers are not entitled to qualified immunity. See generally Duffie, 834 F.3d at 882-85, 2016 WL 4435650, at *4-5.

The officers also charged Gilmore with obstruction of legal process, in violation of Minnesota Statute § 609.50 1(1). This charge sheds some light on the mind set of the officers in making the disorderly conduct charge as well.

The statutory language is comprehensive, ambiguous and vague, It has, however, been carefully cabined by the Minnesota Supreme Court in State v. Tomlin, 622 N.W.2d 546 (Minn. 2001) and State v. Pederson, 840 N.W.2d 433 (Minn. Ct. App. 2013).

The court adroitly avoids discussing this charge by hanging its “official immunity” hat solely on the disorderly conduct charge. Ante at 834 n.7. This was very wise because, as .limited by the Minnesota Supreme Court, an arrest under the statute requires a physical act against the arresting officer or an equivalent confrontation using “fighting words.” Tomlin, 622 N.W.2d at 548. There is, of course, not a scintilla of evidence to support this charge. When the obstruction charge is considered in concert with the derisive and unnecessary actions — uprooting and destroying of Gilmore’s political sign on Nicollet Mall— the created ambience becomes somewhat troublesome. It also makes Gilmore’s Mo-nell claim decidedly more extant.

III. CONCLUSION

In epilogue, I fully recognize and concede that policing is difficult, dangerous and uncertain work. Everyone who undertakes it should be respected. Today its rigors are, in my view, second only to military combat duty. So, my concerns in this case are in no way in derogation of these officers. When mistakes occur, however, they should be rectified.

It is possible that a properly instructed jury could reach a verdict for the defendants after hearing and reviewing all the evidence at a trial. On the other hand, a directed verdict on the issue of liability may also be the result. In any event, I believe the magistrate judge, the first judicial officer to deal with the facts and circumstances, was correct and a trial should be conducted.

Accordingly, I respectfully dissent.

      . The Honorable John R. Tunheim, Chief Judge for the United States District Court for the District of Minnesota.

      . Ayaan Hirsi Ali is an activist, author, and former politician who calls for a reformation of Islam and is a prominent supporter of women’s rights.

      .While Gilmore asserts that he was cooperative with the officers, he does not state that he voluntarily agreed to leave the restaurant when asked.

      . We recognize that it is a disputed fact whether Gilmore was given the opportunity to relay his version of events to the officers before being placed in handcuffs or in the squad car. Because we must construe the facts most favorably to Gilmore, we assume the officers failed to ask for his side of the story. But Gilmore does not argue that he would have said anything that would have negated the arguable probable cause stemming from Glazer’s call and in-person account. C£ Kuehl, 173 F.3d at 648 (holding officers lacked arguable probable cause because they spoke with the suspect for only twenty seconds, ignored exculpatory evidence, and failed to document a separate eyewitness account in the police report). The only evidence Gilmore presents as exculpatory here is the fact that his version of events would have conflicted with Glazer’s. That amounts only to "information that cannot be immediately resolved.” Borgman, 646 F.3d at 523.
      Gilmore also notes that the magistrate judge concluded Gilmore had made out a "prima facie case for false arrest,” which allowed Gilmore to amend his complaint to include a claim for punitive damages. The judge, however, was not reviewing the record at summary judgment, and that preliminary order does not conflict with a finding of arguable probable cause here.

      . While an officer may not arrest a suspect if he is "aware of ... a videotaped account of the crime that conclusively establishes] the suspect's innocence,” there is nothing in the record to establish that any video evidence portrayed the full events at issue, and there is no evidence that the officers here were contemporaneously aware of any videos. Kuehl, 173 F.3d at 650.

      . Gilmore argues there was insufficient evidence to suggest he was intoxicated at the time of arrest. We agree the parties dispute this issue, but the officers arrested Gilmore for disorderly conduct, not public intoxication.

      . Because Gilmore’s arrest for disorderly conduct was lawful under the Fourth Amendment, we need not consider whether the alternate basis of his arrest for obstruction of legal process was valid. Moreover, the district court did not base its rulings on the obstruction of legal process statute and the city failed to address the obstruction charge in its brief.
      The district court also correctly rejected Gilmore's Fourteenth Amendment claim, as false arrest claims brought under the Fourteenth Amendment are analyzed identically to those brought under the Fourth Amendment. See Walker v. City of Pine Bluff, 414 F.3d 989, .992 (8th Cir. 2005); Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); McClennon v. Kipke, 821 F.Supp.2d 1101, 1104 n.4 (D. Minn. 2011) (noting that claims of unlawful arrest brought against state actors are analyzed under the Fourth Amendment standard). Gilmore does not contend otherwise.

      . We note, however, that the officers in this case did not actually comply with the requirements of section 629.36, as Gilmore was never taken before a judge for “criminal processing."

      . Although not mentioned by the district court, the record discloses that Mr. Glazer is, indeed, the President and Founder of Progress Texas, a politically liberal Texas-based organization, leading .one to suspect that his intervention, as discussed below, was a conservative/progressive political discussion not only protected but encouraged by the First Amendment.