STATE OF MINNESOTA
IN COURT OF APPEALS
Lena M. Hyatt,
Police Department, et al.,
part and reversed in part
Dissenting, Randall, Judge
Anoka County District Court
File No. C7-03-43
Hippert, Babcock, Neilson, Mannella & Klint, P.L.L.P., 118 East Main
Street, Anoka, MN 55303 (for respondent)
D. Reuvers, Jason
J. Kuboushek, Iverson Reuvers, 9321
Ensign Avenue South, Bloomington, MN
55438 (for appellants)
and decided by Randall,
Presiding Judge, Klaphake,
Judge, and Forsberg,
S Y L L A B U S
1. Because a city police department lacks
the authority to sue and be sued, it is not a legal entity subject to suit.
2. When the challenged conduct involves
police officers’ decisions to use a police dog during a felony arrest and does
not involve the city’s decision to own police dogs, the city is not entitled to
3. A city is entitled to vicarious
official immunity for claims challenging the moment-to-moment decisions of its
police officers to use police dogs during a felony arrest, even when those
claims are made not by the suspect but by a bystander.
O P I N I O N
was bitten by a police dog during the arrest of her husband, respondent Lena M.
Hyatt sued appellant City of Anoka and its police department under the “dog
bite” statute, Minn. Stat. § 347.22 (2002).
The city moved for summary judgment, arguing that (1) the dog bite
statute does not apply to police dogs; (2) it is entitled to either statutory
or vicarious official immunity; and (3) its police department should be
dismissed because it is not a legal entity subject to suit. On appeal from the district court’s denial of
the city’s motion, this court reversed, based on its determination that
application of the dog bite statute to police dogs would lead to an “absurd”
result, in part because such an application would conflict with the statute
that allows police to use reasonable force.
Hyatt v. Anoka Police Dep’t,
680 N.W.2d 115 (Minn. App. 2004), review
July 20, 2004).
review, the supreme court reversed and remanded the matter to this court to
consider the city’s alternative claims of immunity and whether the police
department is a legal entity subject to suit.
Hyatt v. Anoka
Police Dep’t, 691 N.W.2d 824, 831 (Minn. 2005). Because the police department is not a legal
entity subject to suit, it is dismissed.
Because the city is entitled to vicarious official immunity, but not to
statutory immunity, we affirm in part and reverse in part.
Although the facts are fully set out in the supreme
court’s opinion, Hyatt,
691 N.W.2d at 825-26, the following facts are pertinent to the issues here.
On May 21, 2002, at approximately 1:30 a.m., police
officers arrived at a residence to arrest appellant’s husband on outstanding
warrants for controlled substance crime, fleeing a police officer, and driving
after revocation. The homeowner told the
officers that appellant and her husband were living in a two-story barn behind
the residence. When the police officers
entered the barn through an unlocked door, they heard movement upstairs. One officer called for appellant’s husband to
come out. After receiving no response, Officer Mark Yates
and his police dog, Chips, remained at the bottom of the stairs while two
officers proceeded upstairs. Yates heard people yelling and scuffling, and ran upstairs
after one of the officers called for his assistance.
When Yates arrived at the top
of the stairs, he saw one officer with a bloody face. Yates released Chips
either as appellant’s husband jumped out a window or immediately after he
jumped; appellant was either standing between her husband and Chips, was pushed
into the dog’s path by her husband, or stepped into the dog’s path of her own
accord. As Chips took appellant down and
apprehended her, Yates attempted to follow her
husband out the window but caught himself before he fell two stories to the
ground. The other two officers remained
still, out of the dog’s way, until Yates returned to
1. Should the police department be
dismissed because it is not a legal entity subject to suit?
2. Did the district court err in
determining that the city is not entitled to statutory immunity?
3. Did the district court err in determining
that the city is not entitled to vicarious official immunity?
appeal from summary judgment, this Court determines whether there are genuine
issues of material fact and whether the district court erred in applying the
law.” Watson v. Metro. Transit Comm’n, 553 N.W.2d
406, 411 (Minn.
1996). “Summary judgment is appropriate
when a governmental entity establishes its actions are immune from
liability.” Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995). The issue of whether immunity applies is a
legal question subject to de novo review.
Gleason v. Metro. Council Transit Operations,
582 N.W.2d 216, 219 (Minn.
1998). The burden is on the party
claiming immunity. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).
The city argues that the Anoka
Police Department is not a legal entity subject to suit and that it should be
dismissed as a party to this action. The
district court did not address this issue.
While a municipal corporation such
as the city has the authority to sue and be sued, its departments have not been
given that specific authority. See Minn. Stat. §§ 412.111 (2002)
(under chapter governing statutory cities, city council is granted authority to
create departments and appoint officers and agents as deemed necessary for
proper management and operation of city affairs), .211 (2002) (requiring every
city to be municipal corporation having certain powers and rights, including
right to “sue and be sued”). As a
department or agent of the city, the police department is not a legal entity
subject to suit. Maras v. City of Brainerd, 502 N.W.2d 69, 79 (Minn. App. 1993)
(holding that because Crow Wing County Sheriff’s Department is not “person”
subject to suit, claims against it must be dismissed), review denied (Minn. Aug. 16, 1993). We therefore dismiss the police department as
a party to this case. See Galob v. Sanborn, 281 Minn. 58, 61-62, 160
N.W.2d 262, 265 (1968) (reversing judgment entered against public utilities
commission as invalid, because commission was not legal entity that could sue
or be sued, but noting that action could be maintained against village).
The city argues that it is entitled
to statutory immunity because the city’s decision to own, maintain, and use
police dogs is a discretionary one entitled to protection under Minn. Stat. §§
466.02, .03, subd. 6 (2002) (providing that cities are immune from claims
“based upon the performance or the failure to exercise or perform a
discretionary function or duty”). The district court determined that
statutory immunity did not apply because “Officer’s Yates’ use of [Chips] under
the circumstances may only be considered ‘operational’ as it does not bear the
indicia of social, political, or economic motivation that are the hallmark of
public policy decision making.”
When discussing statutory immunity,
we must identify the exact governmental conduct that is being challenged. See
Conlin v. City of St. Paul, 605 N.W.2d 396,
2000). Statutory immunity does not
protect operational conduct or the implementation of policy; rather, it
protects conduct and decision making at the planning level, where cities
evaluate factors involving the financial, political, economic, and social
effects of its decisions. See Watson,
553 N.W.2d at 412-13.
The city characterizes the
challenged conduct as involving the city’s decision to own police dogs because
respondent’s claim is based solely on the dog bite statute, which imposes
liability on the city merely because it owns these dogs. See
Minn. Stat. § 347.22 (2002) (imposing liability on any dog “owner,” if dog
“without provocation, attacks or injures any person who is acting peaceably in
any place where the person may lawfully be”).
The city further asserts that its decision to own police dogs was based
on an evaluation of a number of policies, including officer safety, public
safety, training issues, the expenses associated with owning dogs, and the
effectiveness of police dogs.
While the city’s liability to respondent depends
partially upon its decision to own police dogs, respondent’s claim challenges the conduct of Officer Yates and his
decision to release Chips, despite the fact that respondent was standing
between Chips and her husband. When the
challenged conduct is examined in this way, Yates’
decisions to deploy Chips and pursue respondent’s husband must be viewed as
operational level decisions that are not entitled to statutory immunity. We therefore affirm the district court’s
determination that the city is not entitled to statutory immunity.
The city alternatively argues that
it is entitled to vicarious official immunity for the decisions made by its
police officer to deploy his police dog during the apprehension of a fleeing
felony suspect. “Official immunity is a
common law doctrine that protects government officials from suit for
discretionary actions taken by them in the course of their official
duties.” Sletten v. Ramsey County, 675 N.W.2d 291, 299 (Minn. 2004).
A “[p]ublic official charged by law with duties which call for the
exercise of his judgment or discretion is not personally liable to an
individual for damages unless he is guilty of a willful or malicious
wrong.” Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1998).
Police officers are “classified as
discretionary officers entitled to that immunity.” Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990).
A discretionary decision involves professional judgment balancing
several factors, while a ministerial decision is absolute and certain, and
involves the mere execution of a specific duty under designated facts; official
immunity is not available when an officer is exercising a ministerial
duty. Wiederholt v. City of Minneapolis,
581 N.W.2d 312, 315 (Minn.
553 N.W.2d at 414.
“When the job is simple and
definite,” as when a public official has a clear “duty to adhere to ordinances
and statutes,” the official is not entitled to immunity. Wiederholt,
581 N.W.2d at 316. Moreover, an official
cannot “convert a ministerial decision into a discretionary one by refusing to
comply with the mandate contained in a city ordinance.” Id.; see also Anderson v. Anoka Hennepin Indep.
Sch. Dist. 11, 678 N.W.2d 651, 660 (Minn.
2004) (stating that “ministerial-conduct bar to official immunity arises when
the allegation is that a ministerial duty was either not performed or was
The district court here concluded
that it could not grant summary judgment to the city based on official immunity
because “several fact issues remain,” including “whether Officer Yates
exercised discretion by directing Chips to charge [respondent] or whether Chips
was acting in the perfunctory manner in which he had been trained”; “whether
the other officers present were aware that Chips had seized [respondent] and whether
Chips would follow a release command if given by another officer”; and “whether
once Officer Yates realized that Chips had seized [respondent] he released
Chips immediately or knowingly allowed Chips to continue to maul [respondent.]”
The issue, however, is not whether
genuine issues of fact exist, but whether Yates’
decisions were discretionary, involving his individual professional judgment,
or whether he was merely executing specific duties arising from fixed and
designated facts. This requires examination
of whether Yates’ decisions involved ministerial
duties, which are often defined by statute, ordinance, or department
regulation. See, e.g., Anderson., 678
N.W.2d at 659 (concluding that ministerial duty established by unwritten school
policy); Nelson v. Wrecker Servs., Inc.,
622 N.W.2d 399, 403 (Minn.
App. 2001) (finding that statute established ministerial duty for emergency
vehicle to activate its lights and siren).
Respondent argues that Yates violated ministerial duties established by statute and
by department policy. Department policy
reminds officers, including those with police dogs, that they may “only use
that amount of force which is necessary to make or maintain an arrest” and that
“no employees shall use more force . . . than is reasonable and
necessary.” Minn. Stat. § 609.06 (2002)
allows police to use reasonable force to effect a lawful arrest, and in this
case, the supreme court determined that the statute applies to harm caused to
an innocent bystander or to a third person “who is or reasonably appears to be
impeding a lawful arrest.” Hyatt, 691 N.W.2d
conduct is covered by the reasonable force statute and by department policy,
that fact does not necessarily prove that a ministerial duty was involved. “[A] ministerial duty is one in which nothing
is left to discretion; it is absolute, certain, and imperative, involving
merely the execution of a specific duty arising from fixed and designated
facts.” Sletten, 675 N.W.2d at 306 (quotation omitted). For instance, a ministerial duty was found to
exist where a municipal code provided that “it shall be the duty of the City
Engineer to immediately repair” any broken sidewalk. Wiederholt,
581 N.W.2d at 316; see also Waste Recovery
Coop. v. County
517 N.W.2d 329, 333 (Minn.
1994) (holding that duties fixed by requirements of statute or municipal policy
are ministerial and not protected by official immunity).
under department policy and the reasonable force statute, Yates
was entitled to use Chips to effectuate the arrest of respondent’s
husband. The critical question still
involves whether the actions taken by Yates were
“reasonable,” the resolution of which would require us to second-guess his
discretionary decisions and professional judgment. The following facts are undisputed: (1) Yates knew that respondent’s husband had
felony warrants out for his arrest; (2) Yates heard fighting upstairs and
a woman screaming in a threatening tone; (3) Yates heard one of the officers
call for assistance; and (4) when Yates arrived at the top of the stairs, he
saw a woman standing in the middle of the room and the two other officers off
to the side, one with blood on his face.
According to Yates, he released Chips when he
saw respondent’s husband flee through a window, and he decided to pursue
respondent’s husband rather than order Chips off of respondent.
While respondent testified that her
husband was already out the window by the time Yates and Chips reached the top
of the stairs, her differing testimony on this point does not change the fact
that Yates made a discretionary decision to use what he considered was
reasonable force, the deployment of Chips, to assist in the arrest of respondent’s
husband, whether he was still in the room or whether he had just fled. Yates’ decisions
were made after considering the safety of the other officers, the immediacy of
the situation, and the actions by respondent’s husband to flee and resist
arrest. And, while respondent criticizes
the failure of the other officers to assist her while Chips was biting her, the
decisions of those officers similarly involved moment-to-moment decisions made
by officers during the course of the arrest of a fleeing suspect. See
Kuha v. City of Minnetonka, 365 F.3d 590, 608 (8th Cir. 2004) (holding that
under Minnesota law, “officers’ decisions to use a police dog, and the moment
by moment decisions made in the course of that use, were, as a matter of law,
discretionary acts, and the officers are entitled to official immunity”). We therefore conclude that Yates
and the other officers are protected by official immunity for their actions.
Even if we conclude that the
officers’ decisions involved discretionary acts, they are not entitled to
official immunity if they acted maliciously.
Malice is “the intentional doing of a wrongful act without legal
justification” or the “willful violation of a known right.” Rico v.
State, 472 N.W.2d 100, 107 (Minn.
1991). “Malice in the context of
official immunity means intentionally committing an act that the official has
reason to believe is legally prohibited.” Kelly v.
City of Minneapolis, 598 N.W.2d 657, 663 (Minn. 1999).
Respondent insists that genuine
issues exist as to whether Yates and the other
officers acted with malice. But, as the
city argues, the focus must be on whether the officers’ actions can be
construed as an intentional effort to engage in behavior that they had reason
to know was “prohibited.” Id. While respondent may criticize the officers’
decisions and suggest that those decisions were done carelessly or without
reasonable care, she does not claim that the officers’ knew that their actions
were prohibited by department policy or by statute; nor does she claim that the
officers chose to violate those regulations or otherwise made decisions in
willful violation of known rights.
Finally, the city argues that if its
officers are entitled to official immunity, it is entitled to vicarious
official immunity. The supreme court has
noted that “it would be anomalous” to impose liability on a municipality for
the very same acts for which its official receives immunity. Wiederholt,
581 N.W.2d at 316 (quotation omitted).
The city had policies regarding the use of force and the use of police
dogs, and the immunity extended to the officers for their discretionary
decisions involving those policies extends to the city. See
Pletan v. Gaines, 494 N.W.2d 38, 43 (Minn.
1992) (holding that with respect to police pursuits, police officer’s official
immunity extends to officer’s public employer).
We therefore conclude that the district court erred in determining that
the city was not entitled to vicarious official immunity for the decisions made
by its officers.
D E C I S I O N
While the district court properly denied summary judgment
to the city on the issue of statutory immunity, it erred in denying the city’s
motion for summary judgment on the issue of vicarious official immunity. We therefore affirm in part and reverse in
part. We further conclude that the
police department is not a legal entity subject to suit and is therefore
dismissed from this action.
Affirmed in part
and reversed in part.
respectfully dissent and would remand to the district court for trial on
genuine issues of material fact arising from the question of whether Officer Yates’s actions
were willful or malicious. See Kelly v. City of Minneapolis, 598
N.W.2d 657, 664 n.5 (Minn. 1999) (“[w]hether an action is discretionary or
ministerial is a question of law for the court, but whether an officer acted
maliciously is usually a question of fact for the jury” (citing Elwood v. Rice County, 423 N.W.2d 671,
679 (Minn. 1988)). I agree with the
majority that if Yates’s actions are covered by
official immunity the City of Anoka
is protected by vicarious official immunity.
However, I cannot go along with the majority’s conclusion that, on this
set of facts, the issue is ripe for summary judgment in favor of Anoka. I suggest the district court properly denied
respondent’s motion for summary judgment, and set the case for trial on
contested fact issues.
determination of Yates’s official immunity (and, hence, Anoka’s vicarious
official immunity) requires a two-step inquiry:
(1) whether the act required the exercise of judgment and discretion and
is therefore the sort of conduct covered by official immunity; and (2) whether the alleged act, even
though of the sort generally covered by official immunity, was willful or
malicious and therefore not entitled to protection. Kelly, 598 N.W.2d at 664; Elwood, 423 N.W.2d at 677 (noting that there are two exceptions to
the general rule precluding official liability).
above, the question of whether an officer’s actions were willful or malicious
is one for the jury. Kelly, 598
N.W.2d at 664 n.5. Here, the district
court refused to grant summary judgment on the official immunity question because it
determined that “several fact issues remain,” including “whether the other
officers present were aware that Chips had seized [respondent] and whether Chips
would follow a release command if given by another officer;” and “whether once
Officer Yates realized that Chips had seized [respondent] he released Chips
immediately or knowingly allowed Chips to continue to maul [respondent].” These factual issues are unresolved and
should not be determined by appellate review.
If the other officers stood by and
watched while Chips mauled respondent, and they could have done something about
it, it would be hard to say that those officers did not engage in conduct they
knew to be prohibited, i.e., allowing a
police dog to harm an innocent bystander.
See id. at 663 (“[m]alice
in the context of official immunity means intentionally committing an act that
the official has reason to believe is legally prohibited”). If Yates knowingly
allowed Chips to continue to maul respondent, he also engaged in prohibited
conduct. A large, unresolved question
lingers out there. In general, K-9
police/attack dogs are specifically trained to answer to only one officer, that
dog’s master. The rationale is to avoid
conflicting signals and allow the dog, in serious situations, to have a clear
line of command. Yates
was this dog’s controller. If he was the
only one who could control the dog, the factual question arises as to whether
there was willful conduct in Yates intentionally pursuing Hyatt’s husband and
running out of the room after him, knowing that Chips was still attacking
Hyatt, and knowing that the remaining officers at the scene could not do
anything about that, short of drawing their pistols or batons and shooting or clubbing Chips. As the record shows, Hyatt’s
husband jumped out a window, and Yates went through
the window after him. As the majority
points out, he “caught himself before he fell two stories to the ground.” This is not a speculative scenario. This is a real scenario. What if Yates does
not “catch” himself and falls two stories to the ground and is knocked
unconscious or otherwise incapacitated.
You still have Chips upstairs mauling Lena Hyatt, and you have two Anoka officers standing
around who are helpless to do anything about it if Chips has been trained to
respond to commands from only Yates. In that situation, the dog could easily have
inflicted egregious injuries on Hyatt or caused her
death, absent the other two officers using whatever they could find to stop the
Respondent alleges willfulness;
determination of the ultimate answers to these questions, as the district court
properly held, is not appropriate at the summary judgment stage. Accordingly, I would remand for a trial on
the factual issue of whether the officers on the scene engaged in willful or