This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
COURT OF APPEALS
Hassan, et al.,
The City of Minneapolis,
Filed August 1, 2000
Hennepin County District Court
File No. 9811250
Dennis L. Peterson, Nelson L. Peralta, Peterson, Fishman, Livgard & Capistrant, P.L.L.P., 3009 Holmes Ave. S., Minneapolis, MN 55408 (for appellants)
Jay Heffern, Minneapolis City Attorney, William C. Dunning, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh St., Minneapolis, MN 55402-2453 (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Harten, Judge.
The district court found respondent’s acts in seizing and destroying inventory from appellant’s store to be protected by official immunity and granted respondent’s motion for summary judgment. Because we see no error of law, we affirm.
Acting on information that appellant Jihad Hassan and other merchants were violating the law in acquiring and selling stolen cigarettes and infant formula, City of Minneapolis (City) police obtained a search warrant and seized cigarettes, formula, business records, a computer, and cash from appellant Sunshine Foods, a store owned by Hassan. At the same time, similar materials were being seized from five other stores. Although the purpose of the raid on all the stores was to uncover evidence of illegal trading of cigarettes and infant formula, these items were not mentioned specifically on the warrant.
The raid occurred on the Sunday of Labor Day weekend. The material seized from all the stores was trucked to the police warehouse, where it was unloaded. During the unloading, it became evident that some of the material was infested with roaches. At City’s direction, a pest control firm came to the warehouse a few days later and sprayed the items with pesticide. Unbeknownst to City, the spray was contaminating the items. City later learned that the items were contaminated, unsaleable, and unusable, and had them destroyed. No charges were filed against Hassan.
Hassan sued City for negligence, conversion, and replevin. City moved for summary judgment, arguing that it was protected by official immunity; Hassan moved for summary judgment on the conversion claim, arguing lack of probable cause. Hassan’s motion was denied, and City’s motion was granted. Hassan challenges the granting of City’s motion, arguing that the acts giving rise to his claims were ministerial, not discretionary, and that genuine issues of material fact preclude summary judgment; he also challenges the denial of his own motion for summary judgment on the conversion claim.
D E C I S I O N
In reviewing a grant of summary judgment, this court determines if there are any genuine issues of material fact and if there has been an error in the application of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted).
1. Official Immunity
The success of Hassan’s claims for conversion and negligence depends on whether the City police officers who seized his property and the City employees who caused pesticide to be applied to it were exercising discretionary functions.
The official immunity doctrine provides that a public 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.
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Some degree of judgment or discretion will not necessarily confer discretionary immunity on an official; the crucial focus is upon the nature of the act.
Official immunity * * * protects public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties. * * * Discretion, therefore, has a broader meaning in the context of official immunity.
This court has suggested, as a general matter, that police charged with the duty to prevent crime and enforce the laws are not purely ministerial officers in that many of their duties are of an executive character involving the exercise of discretion.
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Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions * * *.
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The law, in other words, calls for police in emergency situations to exercise significant independent judgment based on the facts before them. They are afforded a wide degree of discretion precisely because a more stringent standard could inhibit action.
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The doctrine protects honest law enforcement efforts * * *.
Elwood v. Rice County, 423 N.W.2d 671, 677-79 (Minn. 1988) (citations and quotations omitted). Here, there is no evidence of a willful and malicious wrong. The officers knew the purpose of the raid was to uncover alleged unlawful acquisition and sale of cigarettes and infant formula by small grocery and convenience stores; they had reason to seize these items, even though the items were not mentioned specifically on the warrant. Police may seize items not described in the search warrant if there is “a nexus * * * between the items seized and the criminal behavior” which prompted the issuance of the search warrant. State v. Severtson, 304 Minn. 487, 490, 232 N.W.2d 95, 97 (1975). Moreover, the issue here is not whether the seizure of Hassan’s property was based on probable cause but whether it was willful and malicious. Hassan implies that lack of probable cause is evidence of malice, but he provides no support for this implication.
City employees could not leave the roach-infested material on the trucks, and they had no place to put it except in the warehouse. Even if appellant is correct in his unsupported claim that the material from his store was not infested at the time it was seized, it would have been infested shortly afterwards because there was no roach-proof segregation of infested material from uninfested material. Appellant argues that the employees were negligent because they did not leave the material on the trucks and they did not call a pest control firm for two days. But the seizure took place on a holiday weekend and faced with a roach infestation, City employees responded promptly and reasonably in the decisions they made, given the constraints of space and time.
Appellant also argues that City employees had a statutory, ministerial duty to keep his property safe. Minn. Stat. § 626.04 (1998) directs simply that seized materials “shall be safely kept * * *.” It says nothing about handling material infested with roaches. City’s employees had to make decisions as to the safekeeping of appellant’s and others’ property; those decisions involved the use of “significant independent judgment based on the facts before [the employees].” Elwood, 423 N.W.2d at 678.
Appellant relies on Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216 (Minn. 1998) (holding that a bus driver’s derisive treatment of and failure to transport a passenger in a wheelchair was not entitled to immunity) and on Terwilliger v. Hennepin County, 561 N.W.2d 909 (Minn. 1997) (holding that a psychiatrist’s decision not to admit a mentally ill patient to the hospital was not entitled to immunity). His reliance is misplaced; both cases are readily distinguishable. Gleason involved a driver’s failure to follow the diagrams and guidelines provided for securing wheelchairs. Gleason, 582 N.W.2d at 220. Here, no diagrams or guidelines governed the handling of roach-infested materials. Terwilliger declined to use official immunity “to erect a shield against malpractice liability that is unavailable to private practitioners.” Id. at 913. Here, no malpractice issue arises; warehouse employees, whether public or private, must react promptly to an infestation of roaches.
We conclude that the acts were discretionary, not ministerial; the officials are entitled to immunity, as is City. Vicarious official immunity protects a government entity from suit based on the official immunity of its employee. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998). The fact that the officials were not named in the suit is irrelevant; denying vicarious official immunity simply because an immune official was not named as a defendant “would allow plaintiffs to defeat immunity by declining to name the official as a defendant.” Id.
2. Fact Issues
Appellant claims that even if the acts giving rise to his complaint were discretionary, fact issues remain as to whether they were discriminatory, and therefore malicious, and accordingly not entitled to official immunity. But
there is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.
DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
Appellant relies on State by Beaulieu v. Mounds View, 518 N.W.2d 567, 571-73 (Minn. 1994) (although official immunity applied because the acts complained of were discretionary, summary judgment precluded because there was a fact issue as to whether the acts were discriminatory and therefore malicious). But Beaulieu held discrimination to be the probable explanation for the acts because the acts were “at variance with what would reasonably be anticipated absent discrimination * * *.” Id at 573. Here, the acts complained of were what one would anticipate from police officers conducting a raid to discover evidence of illegal trade and from employees handling a mass of roach-infested material. Hassan provides no support for his views either that further discovery would have revealed evidence of discrimination or that discrimination in fact took place. No genuine issue of material fact precluded summary judgment.
3. Conversion Claim
Hassan did not make a prima facie case for conversion. Conversion is “an act of interference with personal property done without lawful justification by which any person entitled thereto is deprived of use and possession.” DLH, 566 N.W.2d at 71 (quotation omitted) (emphasis added). Here, there was “lawful justification” for the seizure of Hassan’s property. See also Bahr v. County of Martin, 771 F. Supp. 970, 978 (D. Minn. 1991) (holding that because government officials had a “reasonable purpose” for retaining an owner’s property, there was no conversion). Moreover, conversion is not a showing of ill-will or malice: deprivation of property “is in the law no less a conversion because such was done innocently or in ignorance.” Herrmann v. Fossum, 364 N.W.2d 501, 503-04 (Minn. App. 1985) (citation omitted) (property owner whose home had been declared uninhabitable because of health hazards and cleaned of debris had no claim for conversion “since the city had legal justification to clean out the hazardous property”), review denied (Minn. May 24, 1985). In conversion, the intent, knowledge, or motive of the converter is irrelevant except as affecting damages. Larson v. Archer-Daniels-Midland Co., 226 Minn. 315, 317, 32 N.W.2d 649, 650 (1948) (action for conversion could lie against a third-party purchaser of flax even though purchaser had notice of owner’s adverse claim to flax prior to purchase). A finding that conversion had occurred would not prove that City’s officers and employees acted willfully or maliciously. Therefore, even if Hassan had a valid claim for conversion, it would be precluded by official immunity.
Hassan’s motion for summary judgment on his conversion claim was properly denied, and City was properly granted summary judgment on the ground of official immunity.
 The replevin claim was not mentioned by either party on appeal.
 The district court, sua sponte, also invoked statutory immunity as a reason for dismissing Hassan’s claims. Because neither party raised statutory immunity, we do not address it.
 Generally, an order denying summary judgment is not reviewable. But this order is appealable because it “in effect, determines the action and prevents a judgment from which an appeal might be taken.” Minn. R. Civ. App. P. 103.03(e).
 Appellant contends that City’s deposit of the seized cash with the Minneapolis Police Relief Association, as required by Minn. Stat. § 423B.06, subd. 1 (3) (1998), was malicious. Because that issue was not raised before the district court, we do not consider it here. See Thiele v. Stich, 425 N.W.2d 530, 582 (Minn. 1988).