Dan Gustafson has never been a big planner.
He certainly wasn’t planning on becoming a lawyer when he dropped out of high school, and he wasn’t thinking much about politics as he worked as a line cook at Country Kitchen in Moorhead, Minnesota. And on a recent September afternoon, as he stepped up to a makeshift podium in front of a throng of television cameras, he said he didn’t plan any kind of speech. “Fire away,” he told reporters.
The 57-year-old attorney would eventually make a name for himself in antitrust and medical device cases against big corporations. Even after that, though, he wouldn’t have mapped out where he’s ended up today: as one of the central figures in a high-profile class-action lawsuit that could upend the way the state deals with some of its most dangerous sex offenders.
But in some ways, Gustafson’s blue-collar upbringing helped prepare him to be smack dab in the middle of a legal and political debate over the constitutional rights of more than 700 people locked up in the state’s sex offender treatment program — also known as his clients.
“That’s just part of his personality,” said Karla Gluek, Gustafson’s law partner. “He’s lived a lot of different kinds of lifestyles, and he can relate to people in a lot of different backgrounds.”
From Moorhead to Minneapolis
Gustafson spent his early life in Minneapolis, but his parents divorced when he was about 10, and he moved to Moorhead to be with his mother. By the time he got to high school, troubles at home prompted Gustafson to look for an avenue to get away from his family. He was working as a cook at Country Kitchen when someone mentioned a manager opening at a different location in Twin Falls, Idaho. It seemed like the perfect opportunity to get away, so he took it.
But after years of working in the service industry, Gustafson was tired. “In the restaurant business, when everyone else is off, you are working,” he said. He got his GED at age 19 and enrolled at the University of North Dakota four years later, studying sociology and economics.
He had a hunch he might like the law, so he took the Law School Admission Test. “I thought I’d see how that turned out, and I did well, so I thought, ‘OK, I’ll go to law school,’” he said.
Before long, Gustafson was back living in Minneapolis to attend the University of Minnesota Law School. His first job out of school was clerking for the U.S. District Judge Diana Murphy. Eventually he took his first lawyer job at what is now the Lockridge Grindal Nauen law firm in Minneapolis.
Early on in his career, Gustafson was thrust into antitrust class-action lawsuits. In 1995, he worked on the so-called “Catfish case,” in which Minnesota-based Hormel Foods Corp. and ConAgra Inc. were alleged to have conspired with other companies to fix prices on processed catfish. None of the companies acknowledged wrongdoing, but they agreed to pay $21.1 million to settle the case.
Gustafson went on to become a founding partner at the Heins Mills & Olson firm, where he continued to carve out a niche in antitrust and mass tort cases. “Most lawyers, I think if they told you the truth, would say their career was decided for them,” Gustafson said. “Firms need help in certain areas and you just end up doing that.”
In 2003, Gustafson co-founded his own firm with Gluek, who worked with him at Heins Mills & Olson. At Gustafson Gluek, they grabbed headlines in 2008 for a battery-defect case against Medtronic Inc. that resulted in a $114 million settlement. Three years later, in another case, Medtronic agreed to pay $268 million to settle claims that a wire defect in cardiac defibrillators caused at least 13 deaths. Gustafson was the sole attorney on that case.
The lawyer for people who can’t find lawyers
Gluek says Gustafson has “incredibly good instincts” about what cases to take on, and his upfront style of lawyering has earned him respect in the legal community. “He doesn’t play games with the opposing counsel. He sort of says it like it is,” said Gluek. “That gives him credibility on all sides.”
Gustafson also worked with Chief U.S. District Judge Michael Davis to set up the Federal Pro Se Project, which gives federal judges an avenue to match up lawyers with people attempting to represent themselves in court. Tiffany Sanders, who runs the project in Minnesota, turned to Gustafson for more than a dozen cases in the first five years of the program, more than any other person or firm. In Minnesota, he became the go-to lawyer for people who can’t find lawyers.
In one case, Gustafson represented a man who was suffering from mental illness and was sent to Hennepin County jail, where his condition worsened. Gustafson got a settlement in the case that changed the way the jail handles people struggling with mental health issues. In another case, he represented a Muslim man who wasn’t served halal meals in state prison. Gustafson negotiated a settlement that changed the Department of Corrections’ policy for serving halal-certified meals.
In 2011, the Federal Pro Se Project received a case from clients in the Minnesota Sex Offender Program (MSOP), a high-security treatment facility for offenders still deemed dangerous to the public.
The offenders, most of whom had been civilly committed to the program after they served their time in prison, argued their rights were being violated because the program promised treatment but rarely let anyone out. The case had class-action potential, and Sanders knew Gustafson could handle such complex litigation.
“It’s not the most popular type of case to take, you are dealing with some dangerous people, but I knew he was the type of person who wouldn’t shy away from that,” Sanders said. “He takes these takes case for the right reasons. People need help and he is in the position to help them.”
Making it a fair fight
Gustafson doesn’t carry himself like most attorneys. Tall, he wears rimless glasses and suspenders, his hair cropped close but slightly disheveled. He leans far into the podium in the federal courtroom, and he sinks back and deep into his office chair as he talks.
The inches of his office are lined with pictures of his family. Married with three adult children, he’s now a grandfather, and likes to spend time on his hobby farm in Nowthen, Minnesota, where his family makes honey.
At least when he has time. Gustafson and his firm took on the MSOP case on a pro bono basis. Four years later, it’s grown to include 720 men and one woman locked up in the program, which has campuses in Moose Lake and St. Peter.
From the start, Gustafson argued the state-run program violates constitutional rights of offenders because it offers the promise of treatment while giving offenders few opportunities to ever get out. Gustafson and his team have traveled across the country to look at how other states run their programs. Nineteen other states civilly commit some sex offenders to treatment programs after their prison sentence, but Minnesota commits the highest rate of sex offenders per capita.
Last fall, a panel of experts agreed with Gustafson and recommended the immediate and unconditional release of one offender, with more likely to follow. Judge Donovan Frank didn’t order the offender’s immediate release, but in June he ruled the entire program unconstitutional because of the hopeless environment within MSOP. In October, Frank will issue an order calling on the state to make changes to the program.
It’s the moment Gustafson and his clients have been waiting for for years, and it’s taken a while to get here. Gustafson is regularly reminding his clients that complex cases like this take time. “They often don’t want to hear what I tell them,” Gustafson said. “They have been uniformly dissatisfied with the pace of the case.”
Gustafson compares the MSOP case to death penalty cases and civil rights cases in the 1960s and 1970s. Nobody wanted to take them on, but people need lawyers, he said. Even sex offenders. “Somebody needed to do it and I think it’s important to do those kinds of cases,” Gustafson said. “It doesn’t work when one side doesn’t have a lawyer. The system is set up as an adversarial system. If you have a lawyer on one side and a non-legal person on the other side it’s not a fair fight.”
Gustafson knows some of the people in the program are truly dangerous, but his case has never been about opening the doors of MSOP indiscriminately, letting people out en masse. He wants to see changes made to the program to help move people who are less dangerous through the treatment process and give them less restrictive living alternatives. Some people in the program are victims of a “vicious cycle,” Gustafson said. They were abused as kids and went on to commit abuse themselves, many before they even turned 18.
“I was surprised how many of them were victims as children of sexual or physical abuse,” he said. “When you hear people say you need to break the cycle, I see that more clearly now. The victims become the abusers.”
‘It will take the rest of my career’
The state continues to maintain that the program is constitutional, and plans to immediately appeal Frank’s order to the Eighth Circuit Court of Appeals. That could potentially set in motion another year or two of waiting for a resolution, Gustafson said.
In taking on the case, Gustafson didn’t just take on a legal fight — he inserted himself into a long and contentious political debate. Certain legislators have pushed to make changes to the program, such as establishing less restrictive facilities to house certain offenders, such as the elderly or the disabled. But sex offenders are a stigmatized group, and neither political party has wanted to take any action that could lend itself to campaign attacks about releasing sex offenders.
Ultimately, Gustafson would like politicians to be the ones who make changes to the program, but he doesn’t expect it to happen at this point.
Beyond the next several years, Gustafson isn’t planning out much (“I used to say this case would take five years, now I think it will take the rest of my career”). He probably won’t make major changes to his practice after this case is over.
And he is definitely not planning to jump into politics himself anytime soon. “Somebody asked me once if I would ever run for governor,” Gustafson joked. “I don’t think this would be the launching pad for a run for governor.”