This opinion will be unpublished and

may not be cited except as provided by

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






Mary Ann Radke,


City of Hastings,


Filed January 29, 2002


Peterson, Judge


Dakota County District Court

File No. C2008405


Glenn P. Bruder, Mitchell & Bruder, 4005 West 65th Street, Suite 200, Edina, MN  55435 (for respondent)


Carla J. Heyl, Jeffrey S. Brockmann, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN  55103-2044 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order denying appellant City of Hastings’ motion for summary judgment based on vicarious official immunity, the city argues that respondent Mary Ann Radke failed to allege sufficient facts to avoid summary judgment.  We affirm.


            In March of 1998, respondent began living with and caring for her terminally ill father, Benjamin Radke, in his house at 922 East Second Street in Hastings.  Benjamin Radke died on May 10, 1998.  In his will, Radke left his house to respondent’s son, Tom Radke.  Within a month after Benjamin Radke’s death, Tom Radke sent respondent a copy of the will, and a few days later, Tom and his wife moved into the house at 922 East Second Street.  Two days later, Tom Radke told respondent that she had to leave, but he never began a legal proceeding to remove respondent from the house.  Respondent came home that evening to find much of her furniture gone and Tom in the process of loading the rest of her furniture into a truck.  Respondent called the police.

            At least three police officers came to the house.  Respondent testified in a deposition that one of the officers asked Tom where he was moving respondent’s furniture.  Then Tom went into the house to get a copy of Benjamin Radke’s will to show the officers.  While Tom was gone, respondent complained to one officer that Tom was destroying her furniture, and the officer replied that she would have to “take it to court.”  Tom returned with the will, and after looking at the will, one of the officers said that as long as Shawn Moynihan signed the will, it was okay.  Shawn Moynihan was the Hastings city attorney in addition to being Benjamin Radke’s personal attorney.  One of the officers called Moynihan, who said that the house belonged to Tom and that no eviction notice was required.  According to respondent, one of the officers told her that she had to leave.  Respondent also testified that the officer told her that Tom could do anything he wanted with her things.  Respondent left the scene.

Later that evening, respondent returned to 922 East Second Street to retrieve some personal items.  At the house, respondent’s sister and respondent’s daughter-in-law confronted respondent, and the police were called.  Police arrived and once again told respondent to leave.  An officer stated in her affidavit that “[Respondent] was * * * advised that if she came back to the residence again that evening she would be charged with trespassing.”

Respondent brought an action against the City of Hastings alleging that Hastings police officers wrongfully evicted her from her residence without commencing an unlawful detainer proceeding and deprived her of her property without due process of law.  The city moved for summary judgment on immunity grounds, and respondent also moved for summary judgment.  The district court denied both motions in an order without findings or a memorandum.  The city appealed.


[A]n order denying summary judgment on the ground of immunity is appealable because immunity from suit is effectively lost if a case is erroneously permitted to go to trial.  On an 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) (citations omitted).  In reviewing a denial of summary judgment on a claim of immunity, we presume the truth of the facts alleged by the nonmoving party.  Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).

“Generally, police officers are considered discretionary officers entitled to [official] immunity.”  Baker v. Chaplin, 497 N.W.2d 314, 318 (Minn. App. 1993), aff’d 517 N.W.2d 911 (Minn. 1994).  If official immunity protects a government employee from suit, the government entity will not be liable for its employee’s torts.  Watson, 553 N.W.2d at 414. 

The doctrine of official immunity protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is guilty of a willful or malicious wrong.


Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991) (citation omitted).  “In the official immunity context, willful and malicious are synonymous.”  Id. at 107.

Malice “means nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.”


Id. (quoting Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 462, 205 N.W. 630, 631 (1925)).

The defendant must have reason to know that the challenged conduct is prohibited.  The exception does not impose liability merely because an official intentionally commits an act that a court or a jury subsequently determines is a wrong.  Instead, the exception anticipates liability only when an official intentionally commits an act that he or she then has reason to believe is prohibited.


Id. (emphasis in original).

The Rico standard contemplates less of a subjective inquiry into malice, which was traditionally favored at common law, and more of an objective inquiry into the legal reasonableness of an official’s actions.


State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

 “[I]n analyzing any immunity question it is essential to identify the precise governmental conduct at issue.”  Watson, 553 N.W.2d at 415.  The conduct described by respondent in her complaint was that the police officers (1) directed her “to vacate the residence threatening that if she failed to do so she would be arrested;” (2) directed her “to vacate the residence threatening that if she failed to do so she would be charged with trespassing;” and (3) wrongfully evicted her from her lawful residence “without her consent, without notice to her that her right to occupy the residence as her home had been terminated, and without commencement of an unlawful detainer proceeding.”

            One police officer stated in an affidavit that it is a Hastings police officer’s duty in responding to civil disputes to “standby and keep the peace” and not to intercede in any disputes.  Also,

[i]t has long been the policy of our law to discourage landlords from taking the law into their own hands, and our decisions and statutory law have looked with disfavor upon any use of self-help to dispossess a tenant in circumstances which are likely to result in breaches of the peace.


Berg v. Wiley, 264 N.W.2d 145, 149-50 (Minn. 1978).  In Berg, the supreme court also stated that “the only lawful means to dispossess a tenant * * * is by resort to judicial process.”  Id. at 151. 

            Respondent alleged in her deposition testimony and in an affidavit supporting her motion for summary judgment that the officers told her to leave.  According to respondent’s deposition testimony, police officers at the scene failed to question her regarding her status as a tenant, but instead ordered her to get off the property.  Viewing the evidence in the light most favorable to respondent, we conclude that a fact finder could find that the officers had reason to believe that respondent could not be removed from the home without judicial process but nevertheless assisted Tom Radke in removing respondent.  Because there was a genuine issue of material fact as to whether the officers acted with malice, the district court properly denied the city’s motion for summary judgment.

            We express no opinion about how the case should ultimately be resolved.