Opinion
Civil No. 03-866 ADM/AJB
May 18, 2004
Boris Parker, Esq., and Timothy R. Maher, Esq., Saliterman Siefferman, P.C., Minneapolis, MN, for Plaintiff
Jason J. Kuboushek, Esq., Iverson Reuvers, LLC, Bloomington, MN, appeared for and for Defendants City of Brooklyn Park and Officer Steven Baker
Joseph E. Flynn, Esq., and Susan Steffen Tice, Esq., Jardine Logan O'Brien, Lake Elmo, MN, for Defendants City of Crystal, Officer Justin Tourville, and Sgt. Stephen Holm
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter came before the undersigned United States District Judge on March 12, 2004, for oral argument on the Motions for Summary Judgment [Docket Nos. 25, 29] of Defendants City of Crystal ("Crystal"), Officer Jason Tourville ("Officer Tourville") and Sergeant Stephen Holm ("Sgt. Holm") (collectively, "Crystal Defendants") and of Defendants City of Brooklyn Park ("Brooklyn Park") and Officer Steven Baker ("Officer Baker") (collectively, "Brooklyn Park Defendants"). Plaintiff alleges violation of his Fourth Amendment rights, as well as several state law claims, based on Defendants' use of a police canine to locate Plaintiff and the subsequent handcuffing and detention for brief investigation. For the reasons set forth below, Defendants' Motions are granted.
II. BACKGROUND
The facts, while essentially undisputed, are recited in the light most favorable to Plaintiff. See Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
At approximately 1:20 a.m. on August 17, 2000, the Crystal Police Department responded to a report of an automobile accident near Becker Park in Crystal, Minnesota. Officer Tourville and another Crystal officer were first to arrive at the scene and Sgt. Holm followed shortly thereafter. The officers determined the vehicle had crashed into a tree and sustained significant damage, and that it had been abandoned by the occupant or occupants. Holm Dep. at 36; Tourville Dep. at 14. The windshield was shattered and contained an imprint and hair indicating that a person's head had struck that spot with great force. Baker Dep. at 145; Holm Dep. at 36. Sgt. Holm began to search the immediate area to for the driver, while Officer Tourville remained with the vehicle. The officers sought to locate the individuals involved to assist with a potential injury or investigate possible criminal activity, such as a stolen car or drunk driver. Holm Dep. at 36, 37-38, 74-75; Tourville Dep. at 17. When the driver was not immediately located, Sgt. Holm decided use of a police dog would be helpful in this circumstance. Because Crystal does not have a canine unit, he requested a canine officer from the nearby police department of Brooklyn Park. Holm Dep. at 36, 37-38. Officer Baker and his canine partner, Rafco, were dispatched to Becker Park. Meanwhile, Sgt. Holm began searching the perimeter of the park in his squad car.
When he arrived at the scene of the crash, Officer Baker noticed a screwdriver near the vehicle and observed that the backseat was full of property, both of which suggested to him a possible burglary. Baker Dep. at 148. Officer Baker assessed the situation and determined he should use Rafco to find the involved person. Id. at 123-24. He took Rafco to the car and commanded him to "track," which instructs the dog to apprehend the individual he locates. Id. at 152. Officer Baker testified he chose the "track" command instead of a "search" command, which generally involves no seizure but merely retrieval of a lost item, in light of unknown factors and because of a concern for officer safety. Id. at 152-55. Rafco picked up a scent and Officer Baker followed, keeping the dog on a six-foot, rather than his usual fifteen-foot, leash. Id. at 80-81, 159. When they reached the area near the tennis courts, where a divided structure designed to house two portable toilets is located, Rafco rounded the wall of the shelter and apprehended Plaintiff, who was lying on the floor of the vacant side of the enclosure. Plaintiff had been sleeping at the time and recalls waking up to a flashlight and a silhouette of a dog attacking him, at which point he instinctively began kicking vigorously. Szabla Dep. at 28-30. He states he was in a "dreamy" and "drowsy" state and remembers being told repeatedly, "don't move."Id. at 29-30, 33. Officer Baker ordered Plaintiff to show his hands, which were on Rafco's head in an attempt to release the dog from the bite grip on his leg. When Plaintiff complied, Officer Baker called the dog off and allowed the Crystal officers to take control of the situation. Baker Dep. at 167, 180. Officer Baker believes the incident lasted less than 20 seconds, while Plaintiff estimates a duration of at least 30 seconds. Id. at 200; Szabla Dep. at 30. Sgt. Holm, who had joined Officer Baker at Plaintiff's location, called to Officer Tourville, who ran over to conduct the investigation as part of his on-the-job training. Officer Tourville instructed Plaintiff to roll over, handcuffed him, checked his clothing for weapons and told him to reach for his wallet. Szabla Dep. at 30; Tourville Dep. at 48-49. Officer Tourville told Plaintiff why he was being detained and viewed his Id. entification. Tourville Dep. at 50. Upon verifying that Plaintiff was not involved in the car accident, but was sleeping in the park and owned a motorcycle in the parking lot, Officer Tourville removed the handcuffs.Id. at 50; Szabla Dep. at 32. Plaintiff believes he was handcuffed for approximately two minutes. Szabla Dep. at 31-32. He stated in deposition that he heard Officer Baker say, "I gave the dog too much leash." Id. at 87. Plaintiff was not arrested and acknowledged that the officers "were very nice" and "just doing there job because they didn't know who I was." Szabla Dep. at 82, 84, 91; Holm Dep. at 70; Tourville Dep. at 107; Baker Dep. at 172. The officers called for an ambulance and Plaintiff was taken to the hospital for treatment of the multiple puncture wounds he suffered on his legs due to the dog bites. Szabla Dep. at 36, 41. Plaintiff states the twenty-three abrasions took six weeks to heal and left two vague scars. Szabla Dep. at 75-79. He testified that subsequent to the incident he became fearful of law enforcement, but that these feelings are now subsiding. Id. at 42, 89.
Prior to this incident, Plaintiff had begun sleeping in the portable toilet shelter area in Becker Park so that he could be first in line for his job at Labor Ready, a day labor agency located across the street. By arriving at work very early in the morning, Plaintiff ensured he would receive a job assignment each day. Id. at 22. He initially slept in the Labor Ready parking lot, until a Crystal police officer told him he was not permitted to stay there. Id. at 24. Becker Park closes at 11 p.m. and it is a misdemeanor offense to be in the park after this time. Oyaas Aff. Exs. A, B. The officers did not issue Plaintiff any citations on the morning in question.
Officer Baker has belonged to the canine unit since 1998, with Rafco as his only canine partner. Rafco has been trained and certified in searching and apprehension, tracking, and narcotics detection pursuant to the United States Police Canine Association guidelines. Baker Dep. at 20-28. Rafco and Officer Baker train on an ongoing basis at least eight times per month. Id. at 128.
Based upon the events of the morning of August 17, 2000, Plaintiff brought the instant suit alleging a § 1983 claim for violation of his Fourth Amendment rights, strict liability under the Minnesota dog bite statute, and various state law tort causes of action.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment will be rendered when there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine dispute of material fact means "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party and makes all permissible inferences in his favor. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party, however, may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. Section 1983 Fourth Amendment Claims
As the basis of his § 1983 counts, Plaintiff alleges Defendants subjected him to an unreasonable search and seizure, and used excessive force, all in violation of his Fourth Amendment rights. He also brings municipal liability claims against Defendants Brooklyn Park and Crystal.
Plaintiff's Complaint additionally alleges a violation of due process under the 5th and 14th Amendments. However, his memoranda make no mention of a due process claim and recognize that excessive force and unlawful search allegations are governed by the 4th Amendment.
1. Individual Officer Defendants
a. Excessive Force
The Fourth Amendment standard of objective reasonableness governs claims of excessive use of force by law enforcement officers. Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Graham v. Connor, 490 U.S. 386, 388 (1989). To establish violation of the constitutional right to be free of unreasonable seizure, Plaintiff must show the officers' use of force was objectively unreasonable. Graham, 490 U.S. at 394-95. The determination of whether an officer's use of force was reasonable is based upon the circumstances of the particular case, including the three factors of "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. The defendant's actions are judged from the perspective of a reasonable officer on the scene and without the benefit of hindsight. Id.
Plaintiff does not challenge the initial decision to utilize a canine, but argues that the use of the "track" command without a verbal warning and the failure to immediately call off Rafco constituted excessive force.
The excessive force analysis pertains only to Officer Baker. Plaintiff conceded that Crystal had no control over or responsibility for Rafco. Furthermore, the Cities' Mutual Aid Agreement specifies that officers responding to a request for assistance from another police department remains under the direction and control of their own department. Flynn Aff. Ex. 5, sec. IV., subds. 6-8. The recently asserted argument that the handcuffing and pat down effectuated by the Crystal officers entailed excessive force is belied by Plaintiff's own deposition testimony, in which he denied any mistreatment and affirmed that their actions were "just proper procedure," and that a frisk for weapons under the circumstances was "almost mandatory." Szabla Dep. at 81-86.
The Eighth Circuit's recent opinion in Kuha v. City of Minnetonka, 328 F.3d 427 (8th Cir. 2003), clarified that an officer's command to a police dog to track a person using the bite and hold technique, without giving an oral warning in advance, "is sufficient to state a Fourth Amendment claim." Id. at 431. The court also held that "the mere use of a police dog trained to bite and hold does not rise to the level of a constitutional violation." Id. at 437.
In Kuha, police conducted a search for the plaintiff when he fled from his car into a nearby swamp area after being pulled over at about 5:30 a.m. for a traffic stop. Id. at 432. When Kuha disappeared into the dense foliage, the officer on the scene called in back-up, including "Arco," a police canine. The officer holding Arco's leash gave him a "find" order, which tells the dog to find, bite and hold the suspect until instructed to release. Id. Upon locating Kuha, Arco seized him by biting his upper leg, and the officers, attempting to determine whether Kuha was armed, told Kuha the dog would not be called off until he held his hands in the air. Id. He was unarmed and the apprehension lasted no more than 15 seconds. Id. at 433. Kuha brought an excessive force suit against the officers and the city.
Similarly to the situation in Kuha, Officer Baker used the "track" command without issuing a verbal warning. Given the limited information the officers possessed regarding the abandoned vehicle and the potential for danger, it was not objectively unreasonable to instruct Rafco to "track" a possible burglary or drunk driving suspect. Officer Baker's observations of a screwdriver lying near the car and of the back of the car filled with property support his assessment to use the more serious command to ensure officer safety. See Baker Dep. at 148, 153-55. However, the failure to first give "the suspect a warning and opportunity for peaceful surrender," particularly where the officers concede they may have been looking for an injured driver rather than a criminal, sufficiently states violation of a constitutional right. Kuha, 328 F.3d at 431, 435.
The officers' acknowledgment that they may have been looking only for a seriously injured accident victim raises some question as to the appropriateness of the chosen command. Nonetheless, given the late hour, the fact that the occupant had chosen to leave the vehicle despite evident injury, and the general uncertainty of the situation, it cannot be said that Officer Baker's belief regarding the necessary level of force, even if mistaken, was objectively unreasonable. See Saucier, 533 U.S. at 205; Baker Dep. at 153-55 (stating he gave the track command because of a concern for officer safety with a potentially dangerous individual). Requiring an officer always to give a "find" rather than a "track" command under such ambiguous circumstances could unduly hamper the discretion needed when facing "tense, uncertain, and rapidly evolving" scenarios. Graham, 490 U.S. at 397.
Turning to the seizure, considering the facts objectively, it was not unreasonable to refrain from commanding Rafco to release his bite until Plaintiff complied with Officer Baker's order to show his hands. See Id. at 437-38. Viewing this unfortunate incident without retrospective judgment and from the perspective of an officer on the scene, Officer Baker's apprehension and cautionary measures were reasonable, as he believed Plaintiff, who was in a closed park after posted hours, was attempting to hide from the police and could not see what he had in his hands. Baker Dep. at 167,172.
Having established a violation of a constitutional right, the inquiry turns to whether Officer Baker may invoke the defense of qualified immunity. Police officers, as public officials performing discretionary functions, are entitled to qualified immunity from civil liability if their actions were objectively reasonable in light of established law. Anderson v. Creighton, 483 U.S. 635, 639 (1985). The threshold question of the qualified immunity inquiry is whether "the facts alleged show the officer's conduct violated a constitutional right." Saucier, 533 U.S. at 201. If so, the court proceeds to assess whether or not the particular right asserted was clearly established. Id. "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."Anderson, 483 U.S. at 640. Having found Plaintiff's allegation of failure to verbally warn survives summary judgment, the Court must proceed to determine whether or not Officer Baker's actions violated a clearly established right, or in other words, whether his conduct was arguably reasonable under the particular circumstances of this case. See Malley v. Briggs, 475 U.S. 335, 342 (1986); Kuha, 328 F.3d at 438.
Given the August 2000 timing of the events in question, the right to an oral warning of a tracking police dog was not clearly established when Officer Baker was searching for the driver or passenger of the abandoned vehicle. See Kuha, 328 F.3d at 438. Kuha was not decided until May 8, 2003, and the en banc amended superseding opinion was issued on April 27, 2004. As the Eighth Circuit acknowledged, prior to Kuha there were "no cases from this circuit that mandate such a warning and a review of other circuits offers little guidance on the issue." Id. at 439.
Plaintiff relies on two Fourth Circuit cases in which the court held release of police dogs in the situations presented was clearly unreasonable. See Vathekan v. Prince George's County, 154 F.3d 173, 175 (4th Cir. 1998); Kopf v. Wing, 942 F.2d 265, 268-69 (4th Cir. 1991). However, the Eighth Circuit specifically stated that given the factual nuances of those cases "they do not clearly establish that a verbal warning is always required." Kuha, 328 F.3d at 439. Officer Baker's location and seizure of Plaintiff was not so egregious as to appear plainly unlawful to a reasonably competent officer and thus, qualified immunity applies.See Malley, 475 U.S. at 341.
b. Search and Seizure
Plaintiff also contends the officers detained and searched him without a reasonable and articulable suspicion that he had committed a crime. Like claims of seizure by excessive force, allegations of unlawful arrest or detention are judged under the Fourth Amendment objective standard of reasonableness. U.S. Const. Amend. IV (providing right to be free from "unreasonable searches and seizures"); Cross v. City of Des Moines, 965 F.2d 629, 632 (8th Cir. 1992). Investigative stops are deemed seizures and are constitutional so long as the police officer can "point to specific and articulable facts, which" under the particular circumstances of the case, "reasonably warrant the intrusion." Terry v. Ohio, 392 U.S. 1, 21 (1968). Further, "[d]uring a Terry stop, officers may check for weapons and may take any additional steps `reasonably necessary to protect their personal safety and maintain the status quo,'" but must use the least intrusive means required to effectuate the investigative purpose. United States v. Miller, 974 F.2d 953, 957 (8th Cir. 1992) (quoting United States v. Hensley, 469 U.S. 221, 225 (1985)). Handcuffs may be employed as a reasonable precaution where a suspect may be armed and there are legitimate concerns for officer safety. Id.
Here, although mistaken in their belief, the officers had an objectively reasonable basis to suspect "that criminal activity may be afoot" and that Plaintiff may have been armed and dangerous sufficient to justify the brief intrusion. Terry, 392 U.S. at 30; see Saucier, 533 U.S. at 205 (stating that mistaken belief may justify police action, as long as it was reasonable under the particular facts of the case). Abandoning the scene of an accident is a crime under Minnesota law, and additionally, the officers suspected the car may have been stolen or used in a burglary, and that the driver may have been intoxicated. Baker Dep. at 148; Holm Dep. at 36-38. The officers thus believed, based on their experience and observations of the scene, that a crime had been committed. Baker Dep. at 148; Holm Dep. at 36-38, 74, 75, 97; Tourville Dep. at 11. Contrary to Plaintiff's argument that it should have been obvious that he had not been involved in any crime, his presence in the park after hours was a misdemeanor, he was dressed at least partially in dark clothing and was in a location that could be construed as hiding from law enforcement. Baker Dep. at 173 (stating that he observed Plaintiff wearing gloves and dark clothing typical of burglars, and believed Plaintiff was attempting to hide).
Officer Tourville testified he handcuffed Plaintiff and patted him down for weapons to provide officer safety, and released him as soon as they confirmed he had been sleeping in the park and was not the driver of the crashed vehicle. Plaintiff estimates the detention lasted about two minutes. Szabla Dep. at 32. As soon as the officers verified Plaintiff'sId. entification and ascertained he was sleeping in the park and not involved in a crime, Officer Tourville removed the handcuffs and called for an ambulance to seek medical attention for Plaintiff's bites. Id. at 31-32; Tourville Dep. at 50. Under such circumstances, Defendants' have articulated reasonable suspicions based upon specific facts to warrant the investigative seizure and limited search of Plaintiff's person. See Terry, 392 U.S. at 21, 26-27. The detention only lasted as long as necessary to dispel the officers' beliefs that Plaintiff was involved in the auto accident or a potential theft, and it was therefore constitutionally permissible. See Id. at 18-19; United States v. Sharpe, 470 U.S. 675, 685-87 (1985).
2. Defendants Brooklyn Park and Crystal
"[A] municipality can be found liable under § 1983 only where the municipality itself caused the constitutional violation at issue" by means of a custom or official policy. Kuha, 328 F.3d at 440 (emphasis in original) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)). A single incident of unconstitutional activity, standing alone, is insufficient to establish aMonell claim. City of Canton v. Harris, 489 U.S. 378, 385 (1989).
At oral argument, counsel for Plaintiff could not specify what municipal pattern, practice or policy Plaintiff was averring to be unlawful. In his brief, Plaintiff alleges Brooklyn Park's Use of Force policy, Directive Number 333, is constitutionally deficient because it does not explicitly mention canine use as a type of force or cross-reference Directive 331, the canine policy, which acknowledges that use of a canine may constitute force. This argument fails in multiple respects. First, Plaintiff cites no authority mandating a city include all related policies and information in a single document. Second, he does not indicate in his memorandum, nor did counsel explain at oral argument, what about these principles was unconstitutional, other than averring generally that the policy "fosters the use of excessive force." Pl.'s Mem. in Opp. to Brooklyn Park's Mot. at 17. The failure to expressly include canine use as an example of the use of force in Directive 333 does not render this policy unconstitutional. Plaintiff additionally argues Brooklyn Park failed to properly train its officers. A municipality may be liable under § 1983 for inadequate training of police only under the limited circumstances where "the failure to train amounts to deliberate indifference to the rights of persons with whom police come into contact." Harris, 489 U.S. at 380. "That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city," but rather plaintiff must present evidence of a "persistent and widespread" de facto policy that is the proximate cause of the incident in question. Id. at 390-91.
In Kuha, the court reversed summary judgment on the Monell claim, where the plaintiff argued and presented evidence that the department's policy authorized officers' use of a police dog trained only to bite and hold, without giving a prior verbal warning, and the conduct was ratified by the Chief of Police. Kuha, 328 F.3d at 440. In the instant case, Plaintiff did not raise this argument.
Here, this claim is predicated solely on Officer Baker's purported unlawful apprehension of Plaintiff, in direct contradiction to the Supreme Court's instruction that a failure to train claim not become a vehicle for vicarious liability actions against a government employer.See Id. at 391. Even assuming Officer Baker acted unconstitutionally, this isolated incident will not support a claim of inadequate training against Brooklyn Park.
With respect to Defendant City of Crystal, Plaintiff's Monell claims are even more tenuous. His bald assertion that "Sergeant Holm's actions are indicative of a widespread custom of the City of Crystal to unlawfully search, seize and detain suspects," falls far short of presenting evidence of a continuing, widespread pattern of tacit authorization of police misconduct that is necessary to prove an unconstitutional municipal custom. Pl.'s Mem. in Opp. to Crystal's Mot. at 21; Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999) (expounding elements required to show municipal custom of unlawful conduct). Summary judgment is granted on Plaintiff's § 1983 claims against Brooklyn Park and Crystal.
C. Dog Bite Statute
Plaintiff seeks to hold Defendants strictly liable for his injuries pursuant to Minnesota Statutes Section 347.22, which states in relevant part:
If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured for the full amount of the injury sustained.
Crystal asserts that it is not the owner of, nor in any way legally responsible for, Rafco, and thus this provision does not apply to it. Brooklyn Park, Rafco's owner, counters that Plaintiff was not lawfully in the park and further, that the statute was not intended to apply to police canines.
Plaintiff admits he violated a Crystal ordinance by sleeping in the park after it closed, but argues, without supportive citation, that such a narrow construction of a "place where the person may lawfully be" is contrary to legislative intent. Because it is undisputed that Plaintiff was not lawfully in the park premises when he was bitten, the dog bite statute is inapplicable and summary judgment is granted on this count.See Matson v. Kivimaki, 200 N.W.2d 164, 168 (Minn. 1972). The issue of the applicability of the statute to police canines need not be reached.
D. State Law Claims
Plaintiff has voluntarily dismissed Count IV, reckless infliction of emotional distress, and Count V, negligent infliction of emotional distress, and did not pursue his battery claim, Count IX, at this summary judgment juncture. With regard to the remaining claims of negligence, intentional infliction of emotional distress, negligent training/supervision, false arrest, and assault, Counts II, III, VI, VII and VIII, respectively, summary judgment is warranted on multiple grounds. As against the Crystal Defendants, Plaintiff has conceded his intentional infliction of emotional distress and assault claims, and has not provided any basis for his negligence claim that Defendants had a duty to protect Plaintiff from harm by the police dog. The negligence count is based on the handling of and injury caused by Rafco, and Plaintiff has stated he is not challenging the initial decision to call in the canine unit, which was the only action by the Crystal officers with respect to the dog.
Similarly, Plaintiff has not proffered sufficient evidence to make a prima facie showing of intentional infliction of emotional distress against Brooklyn Park and Officer Baker. There is no proof of record that Officer Baker intended to cause Plaintiff severe emotional distress or acted with the knowledge such distress was almost certain to occur, nor that Plaintiff sufferedsevere mental distress. See Hubbard v. United Press Int'l. Inc., 330 N.W.2d 428, 438-39 (Minn. 1983) (noting "sharply limited" application of this tort, which requires Plaintiff to show extreme and outrageous conduct, intent to cause distress, or recklessness, and resulting severe emotional distress).
Regarding the negligence and assault allegations against Brooklyn Park and Officer Baker, Plaintiff does not expressly delineate his argument, apparently relying on his official immunity analysis to explain Defendants' purported tortious conduct. Neither does he provide proof or elaboration to substantiate his negligent training/supervision or false arrest averments against either the Brooklyn Park or the Crystal Defendants. Even if Plaintiff had enunciated factual support for these claims, however, Minnesota does not recognize the distinct tort of negligent training, and liability for the other claims would be barred by official immunity. See McKenzie v. Lunds, Inc., 63 F. Supp.2d 986, 1007 (D. Minn. 1999).
Plaintiff was never placed under arrest and the detention did not exceed a reasonable length or scope so as to become unconstitutional or evolve into an arrest. See Terry, 392 U.S. at 18-19; Dunaway v. New York, 442 U.S. 200, 211-12 (1979).
1. Official Immunity
"[U]nder Minnesota law, a public official is entitled to official immunity from state law claims when that official is charged by law with duties that require the exercise of judgment or discretion. Generally, police officers are classified as discretionary officers entitled to that immunity."Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990) (internal cites omitted); see Maras v. Brainerd, 502 N.W.2d 69, 77 (Minn.Ct.App. 1993). However, conduct is not immune from liability if the public official "is guilty of a wilful or malicious wrong." Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). Wilful and malicious are synonymous in this context and mean purposeful violation of an individual's rights, such that the official "intentionally commits an act that he or she then has reason to believe is prohibited." Id.
Plaintiff concedes that all of the officers' actions in this case were discretionary. Pl.'s Mem. in Opp. to Brooklyn Park's Mot. at 27; PL's Mem. in Opp. to Crystal's Mot. at 23; see also Kuha, 328 F.3d at 442. He alleges that the individual Defendants had reason to believe their conduct was unlawful and are therefore deprived of immunity. Plaintiff has not produced any evidence that the officers had reason to think their procedures in tracking and detaining Plaintiff, who they believed may have been involved in a crime, were prohibited. As the above qualified immunity analysis establishes, Defendants did not violate any clearly established law and therefore would have no ground to believe they were acting improperly. Officer Baker, Officer Tourville and Sgt. Holm are immune from liability for the state law causes of action.
Plaintiff's reliance on an expert report opining that Officer Baker's commanding of Rafco amounted to police brutality is not supported by the record. There is no evidentiary basis for Plaintiff's intimation that Officer Baker deliberately set his dog out to bite an innocent individual. See Parker Aff. Ex.5.
2. Vicarious Immunity
The doctrine of vicarious official immunity shields a municipality or other government entity from liability for the actions of an employee who is entitled to official immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998). As a matter of policy, vicarious immunity should apply when holding the city liable could deter and stifle police officers' exercise of judgment and discretion. See Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993); see also Kuha, 328 F.3d at 442 (extending vicarious official immunity to Minnetonka police department).
Brooklyn Park and Crystal are entitled to vicarious immunity for their officers' actions in this case. Officers Baker and Tourville and Sgt. Holm determined how to proceed based on the incomplete information with which they were presented, and Id. not exhibit "the type of reckless conduct . . . which might suggest the City should remain subject to suit." Kuha, 328 F.3d at 442. Accordingly, summary judgment is also granted on the state law claims against the City Defendants, and on the Complaint in its entirety.
E. Costs and Fees
Though not briefed or addressed at oral argument, the Crystal Defendants' submissions included a request for costs, disbursements and attorneys' fees. The circumstances of this case do not warrant such an award and this portion of the Motion is denied.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendants' Motions for Summary Judgment [Docket Nos. 25, 29] are GRANTED;
2. Crystal Defendants' request for costs and attorneys' fees [Docket No. 25] is DENIED;
3. The Court's Order of 3/8/04 [Docket No. 36] dismissing Counts V and VI is amended to reflect Plaintiff's Voluntary Dismissal of Counts IV and V; and
4. Plaintiff's Complaint [Docket No. 1] is DISMISSED with prejudice.