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Arrested at Zombie Dance Party – Police claim boombox looked like WMD

April 19, 2012

In 2010, the US Court of Appeals for the 8th Circuit reversed a lower Court opinion involving zombies at a zombie dance party. This was an important Federal case involving flash mobs and protesters rights. This costumed flash mob “zombie dance party” was a “statement about consumerism” with the protestors dressed to “simulate sickly appearance, white powder, fake blood” (note the similarity in colors to clowns, another character of existential expression) and “almost touching people” (note the similarity to other in-your-face flash mobs: Santa-con, Pantless subway ride, International Pillow fight, Occupy Wall Street).

This zombie dance party assembled without a permit, some zombies arrested but the 2010 decision was a success in challenging for their right to sue for wrongful arrest. The actions of this group of zombie dance partiers is highly relevant to the flash mob protest activities of Occupy Wall Street (although obviously an 8th circuit case is not legally binding in New York). Many Occupy protestors throughout the country dressed as zombies during early Occupy events and particularly in the weeks nearing Halloween Zombies” Occupy Wall Street [Slideshow] . And an Occupy Boston event in December was promoted as a “dance party” (no zombie just dance party) and a sufficient flash mob gathered to succeed in delaying the eviction of occupiers planned by the Mayor of Boston for that night.

Previously ZombieLaw posted about zombie dance parties, and also other zombie flash mobs like recent zombie pub crawl, and zombie protest of radiation

The only US Court opinion (federal or state) with the phrase “zombie dance party” is the 2008 district court opinion:
Baribeau v. City of Minneapolis, Civ. No. 06-4953 (JNE/SRN), UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, 578 F. Supp. 2d 120
Decided – September 12, 2008

During the Minneapolis Aquatennial in 2006, Plaintiffs were arrested in downtown Minneapolis after participating in what they describe as a “zombie dance party,” an event that involved wearing fake blood on their faces, playing music and amplified spoken phrases from improvised sound systems, and other activities they claim were meant to call attention to the shortcomings of consumerist culture. Plaintiffs assert various claims arising out of their detention, search, and arrest. They have brought suit under 42 U.S.C. § 1983 (2000), as well as for claims of false imprisonment, assault, battery, and defamation, against Defendants

At about 6:00 p.m. on July 22, 2006, during the 2006 Minneapolis Aquatennial celebration, Plaintiffs gathered at the Nicollet Mall light rail station in downtown Minneapolis in order to walk and dance through downtown Minneapolis while pretending to be zombies. They refer to this activity as a “zombie dance party.” To simulate the sickly appearance of zombies, some Plaintiffs had applied white powder and fake blood to their faces and wore dark makeup around their eyes. Plaintiffs left the light rail station and made their way to the intersection of South Seventh Street and Nicollet Avenue, alternately dancing and walking in a lurching, zombie-like fashion.

Plaintiffs assert dual purposes for participating in the zombie dance party. First, they intended to entertain themselves and others. Second, they intended the zombie dance party as social commentary or performance art related to what they believed to be the mindless nature of consumer culture. Accordingly, Plaintiffs used the sound system not only to play music but also to broadcast silly mock advertisements like “brain check on aisle five,” “get your brains here,” and “brains.” From the antenna, Plaintiffs hung a homemade sign with the word “brains” on it. Plaintiffs invited bystanders to join them, and at least one person did so for a brief period of time.

In an affidavit submitted by Plaintiffs … a bystander who observed Plaintiffs’ zombie dance party, states that she “observed [Plaintiffs] being very sensitive to kids that they passed, turning away if they looked frightened.” Several photographs in the record reveal that several Plaintiffs meddled with the Mary Tyler Moore statue on Nicollet Avenue, touching it in an unusual manner.

At about 7:00 p.m., Officers … received word that someone had called the police to report that individuals in zombie makeup were playing music and approaching or bothering pedestrians.

Plaintiffs informed the officers that they were holding a zombie dance party and making a statement about consumerism.

Plaintiffs who were wearing ghoulish makeup and had a “grunge look.” [Officer] expressed a concern that the people he had seen were obstructing the sidewalk and might be affiliated with a group known as the “Juggalos.” According to a bulletin distributed to police officers in early or mid-July, the Juggalos were a violent gang from Washington state known for, among other things, wearing face paint.

And as if it couldn’t get weirder – the plaintiffs were then arrested under “a statute that criminalizes possession of simulated weapons of mass destruction (WMD)”, yes, WMD! Because supposedly they had a makeshift music player in some backpacks, with exposed wiring and an on/off switch?! And meanwhile there is also at least one gun, some lack of cooperation with the police (refusing to provide a last name), and some evidence of a “frightened” “young girl”, so the District Court ordered summary judgment against the plaintiffs.

The appellate court for the 8th circuit, never using the phrase “zombie dance party” reverses in part and affirms in part:

Baribeau v. City of Minneapolis, No. 08-3165, UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT, 596 F.3d 465
Filed – February 24, 2010

The plaintiffs’ plan was to protest the “mindless” nature of consumer culture by walking through the downtown area dressed as zombies.

At around 7 p.m., Minneapolis police received word of an anonymous 911 call complaining about a group of “people covered in make up playing loud music from a boombox” on Nicollet Mall. J.A. 219 (capitalization removed). According to the caller, the group’s members were “calling themselves zombies and almost touching people.” Id. (capitalization removed). Officers James Archer and Chad Martin responded to the call and were the first to arrive on the scene. They found the plaintiffs playing music and dancing as zombies near the intersection of South Seventh Street and Nicollet Mall.

a young girl with her father saw the plaintiffs “dressed up in the zombie appearance,” and became frightened. Merkel and Weber asked the plaintiffs for identification, but most of them were not carrying identification with them. The officers informed the plaintiffs that they were being taken to the police station to be identified. Sternberg asked whether they were being “detained,” and one of the officers responded, “Yes.” Sternberg then asked, “What’s the charge?” The officer said, “I don’t know, let’s call it disorderly conduct for now.” The officers escorted the plaintiffs to a station several blocks away.

Comparing the activities to more obtrusive and hate speech moments from the past, the Court finds that there was no probable cause here:

We conclude that [Officers] Merkel and Weber did not have arguable probable cause to arrest the plaintiffs. The state of the law at the time of the arrests was clearly established such that a reasonable person would have known there was no probable cause to arrest the plaintiffs for engaging in protected expressive conduct under the disorderly conduct statute. The Minnesota Supreme Court’s 1978 decision in S.L.J. clearly limited the disorderly conduct statute to “fighting words” when “language” is implicated. Moreover, the court’s 1998 decision in Machholz made it clear that the S.L.J. narrowing construction applies to protected expressive conduct. After all, in light of Machholz, an objectively reasonable person would not think probable cause exists to arrest a man under Minnesota’s disorderly conduct statute if the man was protesting homosexuality by riding his horse through a crowd gathered to celebrate National Coming Out Day, shouting anti-homosexual statements, swinging a rope, and knocking over signs advertising the event. Accordingly, an objectively reasonable person would not think probable cause exists under the Minnesota disorderly conduct statue to arrest a group of peaceful people for engaging in an artistic protest by playing music, broadcasting statements, dressing as zombies, and walking erratically in downtown Minneapolis during a week-long festival. Merkel and Weber arrested the plaintiffs in 2006–well after the Minnesota Supreme Court’s decisions in S.L.J. and Machholz. Thus, the Minnesota Supreme Court’s cases in S.L.J. and Machholz provided Merkel and Weber with a fair warning that the arrests were unconstitutional.

Further, the Court did not accept defendants argument for qualified immunity in cases of terrorism involving (even simulated) WMD:

As a part of their artistic anti-consumerism protest, the plaintiffs carried four bags of sound equipment. The bags contained an iPod, a radio transmitter, an antenna, a wireless phone handset, radio receivers, and speakers … even if the WMD statute did not require the plaintiffs to display biological, chemical, or radioactive elements, a reasonable person would not have believed probable cause existed to arrest the plaintiffs for displaying simulated WMD.

So the Zombies won the right to pursue claims of wrongful arrest. I don’t know if there are any further updates about this case since the 2010 reversal of summary judgment. I would tend to guess that the city settled but maybe it is still working it’s way through the system…?

Here’s a Flickr picture of a circa 2005 zombie dance party flash mob that appears to be dancing (or terrorizing?) inside a fast-food restaurant, so the locale itself becomes part of the consumer zombie feeding metaphor, location as expressive content? zombie dance party

Also, incidentally, the Baribeau case set important precedent for disabilities law. One of the arrested zombie protesters had a prosthetic leg confiscated while in police detention. The case stands for principle that police may reasonably confiscate a prosthetic leg from a person in custody. He was given a wheelchair and an ADA compliant cell and neither the District Court nor the Appellate Court found a violation of rights. The prosthetic could be treated as ordinary property to be vouchered and stored apart from the detainee. But really, this can’t be the first time someone with a prosthetic leg was arrested in Minneapolis and so the connection of this disability issue to the zombie dance party case is a striking coincidence. Once again we see “zombie” associated to questions of bodily rights in a time of new technologies.

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