This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Eugene R. Lundak,


Officer Tom Nyseth, et al.,


Filed September 18, 2001


Stoneburner, Judge


Winona County District Court

File No. C800449



William L. French, 627 Woodhaven Court Northeast, Box 6323, Rochester, MN 55903 (for appellant)


Jon K. Iverson, Jason J. Kuboushek, Iverson Reuvers, LLC, 230 Townline Plaza, 8585 West 78th Street, Bloomington, MN 55438 (for respondents)



            Considered and decided by Stoneburner, Presiding Judge, Hanson, Judge, and Lindberg, Judge.*


U N P U B L I S H E D  O P I N I O N



Respondent Winona Police Officer Tom Nyseth removed guns from appellant Eugene Lundak’s home and gave them to Lundak’s brother-in-law.  Lundak lost his concilliation court action for conversion against Officer Nyseth and the Winona Police Department, and he removed the action to district court.  The district court granted summary judgment in favor of respondents, ruling that the officer’s actions were discretionary, and therefore respondents were protected by official and vicarious official immunity.  Lundak appeals, arguing that the officer’s decision is not protected by official immunity.  Lundak also asserts that the district court erred by considering a police report.  Because we hold that an officer does not have discretion to give seized property to a private citizen, we reverse.



The parties do not dispute the facts.  During 1997-98, appellant Eugene Lundak and his wife were in the midst of an acrimonious divorce.  On April 12, 1998, Charles Scovil, the brother of Lundak’s wife, called the Winona Police Department and reported that Lundak was suicidal.  Scovil asked police to check on Lundak at his home.  Officer Tom Nyseth and two other Winona police officers went to Lundak’s home in response to Scovil’s call.  When there was no response to their knock, the officers entered Lundak’s unlocked home and called for him.  Receiving no reply, the officers searched the house.  The officers discovered several .22-caliber bullets and one .410 shotgun shell on a table.  Behind a bedroom door, the officers found two uncased guns: one .410 shotgun and one .22 rifle. 

            After discovering the firearms and ammunition, the officers called Scovil to Lundak’s residence.  When Scovil arrived, Officer Nyseth asked him to take possession of the rifle and shotgun, and Scovil agreed.  Scovil later gave the guns and ammunition to an individual in Wisconsin. 

Following several unsuccessful attempts to recover the firearms, Lundak brought a conversion action against Officer Nyseth and the Winona Police Department in conciliation court, which denied his claim.  Lundak removed the action to the district court, and respondents moved for summary judgment, arguing that Officer Nyseth’s action was discretionary and therefore protected by official immunity and that the department was entitled to vicarious official immunity.  The district court agreed and granted summary judgment in favor of respondents.  Lundak appeals.



On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).  We review a grant of summary judgment de novo.  Zip Sort, Inc. v. Comm’r of Revenue, 567 N.W.2d 34, 37 (Minn. 1997).

1.      Official Immunity

Whether official immunity applies is a question of law, which we review de novo.  Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).  The common-law doctrine of official immunity provides that a public official who is charged with duties requiring the exercise of judgment or discretion is not personally liable for damages arising from his or her performance of those duties.  Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988).  The critical inquiry in official-immunity analysis is whether the public official’s actions were discretionary or ministerial.  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). 

The supreme court distinguishes between discretionary duties, which are immunized, and ministerial duties, for which the officer remains liable.  Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991).  An officer’s duty is ministerial “when it is absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.”  Id. (quoting Cook v. Trovatten, 200 Minn. 221, 224,  274 N.W. 165, 167 (1937). 

Generally, the official duties of police officers are broadly classified as discretionary duties entitling them to official immunity.  Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn. 1999).  But the particular facts of each case control whether an officer’s conduct merits immunity.  Elwood, 423 N.W.2d at 678.  The first step in analyzing any immunity issue is to identify the specific government conduct at issue.  Watson v. Metro Transit Comm’n, 553 N.W.2d 406, 415 (Minn. 1996).

Lundak first argues that the officers did not have discretion to enter his home without a warrant and without consent.  Respondents rely on Minn. Stat. § 253B.05, subd. 2(a) (1996), which authorizes police officers to take a person into custody

if the officer has reason to believe, either through direct observation of the person’s behavior, or upon reliable information of the person’s recent behavior and knowledge of the person’s past behavior or psychiatric treatment, that the person is mentally ill * * * and in imminent danger of injuring self or others if not immediately restrained.


Despite Lundak’s affidavit stating that he was not suicidal when Scovil called the police, and that the call was part of his wife’s family’s ongoing attempts to make him “look bad,” respondents were justified in treating the report as reliable because it came from an identified source who claimed to have just ended a telephone conversation with Lundak, in which Lundak indicated he “wished to commit suicide.”   Because the officers exercised discretion in deciding whether to enter Lundak’s home to investigate the report, that conduct is immune.

 Lundak next argues that respondents did not have discretion to seize his guns or to give them to Scovil.  Although the statute does not specifically authorize officers to seize weapons or other potential instruments of suicide, logic suggests that such action would be in an officer’s discretion during an investigation of a report of a possible suicide threat.  We need not rule on this issue, however, because even if the officers had discretion to seize the guns, Officer Nyseth had no discretion to give the guns to Scovil.  Respondents have not cited, and we are not aware of, any authority in statute or caselaw that grants law enforcement officers discretion to relinquish seized property to a non-owner citizen at the scene of the seizure.  Minn. Stat. § 629.361 (2000) governs officers’ responsibility for custody of stolen property seized by police.  Although we recognize that criminal law and stolen property are not involved in this case, we find the statute instructive as to how the legislature expects the police to deal with seized property: 

After seizure of the property, the officer shall be answerable for it while it remains in the officer’s custody * * * Upon request of the county attorney, the law enforcement agency that has custody of the property * * * shall deliver the property to the custody of the county attorney for use as evidence * * *.   [T]he county attorney shall make a receipt for the property and be responsible for the property while it is in the county attorney’s custody.  When the offender is convicted, whoever has custody of the property shall turn it over to the owner.


Id.  At the very least, the statute ensures that officers and law-enforcement agencies have  an orderly process established for dealing with seized property. 

Respondents argue that Officer Nyseth’s actions were performed in an emergency situation requiring quick decision-making pursuant to Minn. Stat. § 253B.05, subd.2(a), which describes emergency procedures for placing people in custody and admitting them to treatment facilities.  See Elwood, 423 N.W.2d at 678 (shielding officers from liability resulting from officer’s quick judgment exercised in emergency situation).  There was no emergency situation at the time the guns were given to Scovil.  Officer Nyseth’s decision to give Lundak’s guns to Scovil did not involve split-second judgment.  We hold that once the property was seized in this case, the officer had an absolute duty to maintain the property in police custody until it was released to the owner or otherwise disposed of according to legal process.

2.  Vicarious Official Immunity

Vicarious official immunity protects a governmental entity from liability based on the acts of an employee who is entitled to official immunity.  Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998).  Because we hold that Officer Nyseth is not entitled to official immunity for giving Lundak’s firearms to Scovil, the Winona Police Department is not entitled to vicarious official immunity. 

3.      Police Report

Lundak also argues that the police report attached to opposing counsel’s affidavit is inadmissible hearsay and constitutes improper evidence to support summary judgment.  See Kay v. Fairview Riverside Hosp., 531 N.W.2d 517, 520 (Minn. App. 1995) (holding police reports not admissible in opposition to summary judgment), review denied (Minn. July 20, 1995).  The information contained in the police report is almost identical to the information in Scovil’s affidavit and the parties agree that no factual issues are in dispute.  We therefore decline to address this issue.


* Retired judge of district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.