This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-1603

 

John Lom,

Appellant,

 

v.

 

Itasca County, et al.,

Respondents.

 

 

Filed February 26, 2002

Affirmed

Hanson, Judge

 

Itasca County District Court

File No. C9-00-988

 

 

George L. Duranske, III, Duranske Law Firm, 1435 Anne Street Northwest, P.O. Box 1383, Bemidji, MN 56619-1383 (for appellant)

 

Scott T. Anderson, Mark J. Girouard, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Foley, Judge.*


U N P U B L I S H E D† O P I N I O N

HANSON, Judge

On appeal from summary judgment, appellant, who was arrested for domestic assault, argues that the district court erred by (1) dismissing his wrongful imprisonment and invasion of privacy claims on the grounds that respondents were immune from civil liability for the arrest under Minn. Stat. ß 629.341, subd. 2 (2000), and (2) dismissing his claims for wrongful revocation and denial of a permit to carry a pistol on the grounds that the exclusive remedy for denial was appeal to the district court under Minn. Stat. ß 624.714, subd. 12 (2000).† We affirm.

FACTS

After appellant John Lom and his wife visited two bars, Lomís wife became intoxicated and the two argued on the drive home.† At home, Lomís wife pointed a loaded pistol at Lom and then called 911.† Lomís wife told the dispatcher that Lom had beaten her and that she was scared.† Lom picked up another extension and told the dispatcher that he had taken the pistol from his wife, unloaded it, and put it in a drawer in the bedroom.†

The dispatcher relayed this information to the first officer who arrived at the scene, Deputy Scott Braaten.† As it happens, Deputy Braaten rents an apartment from Lomís mother-in-law.† Deputy Braaten entered Lomís home and met with Lom and Lomís wife to discuss the eveningís events.† Lomís wife told Braaten that on the drive home, Lom had stopped the car, grabbed her arms and pushed her to the ground.† She showed Braaten scratch marks on her arms.† Lom denied grabbing or pushing his wife.

Meanwhile, Deputy Aaron Apitz arrived.† He and Deputy Braaten conferred and decided they would arrest Lom for domestic assault.† Deputy Braaten took a written statement from Lomís wife and made the arrest.† Deputy Apitz photographed the pistol before the deputies took possession of it, pursuant to department policy.†

Later that same day, Sheriff Pat Medura notified Lom that Lomís permit to carry a pistol was revoked because of his domestic assault arrest.†

Before Lomís trial on domestic assault charges, Lomís wife provided Lomís attorney with an affidavit recanting the statement she had given to Deputy Braaten.† Itasca County then dismissed the charges and the district court ordered the sheriffís department to return Lomís pistol.† Approximately two weeks after the district court ordered Lomís pistol returned, Lom applied for another permit to carry a pistol.† The sheriff denied the application, again because of Lomís prior domestic assault arrest.

Lom filed a complaint against Sheriff Medura, Deputies Braaten and Apitz, and Itasca County, alleging (1) wrongful imprisonment, (2) invasion of privacy, and (3) wrongful revocation and denial of his permit to carry a pistol.† On defendantsí motion, the district court granted summary judgment dismissing the complaint.† This appeal followed.

D E C I S I O N


An appellate court, when reviewing summary judgment appeals, must determine whether there are any genuine issues of material fact and whether the district court erred by its application of the law.† State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).† Appellate courts review the facts in the light most favorable to the party against whom summary judgment was granted.† Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993); see also Lundstrom v. City of Apple Valley, 587 N.W.2d 517, 519 (Minn. App. 1998) (applying the summary judgment standard of review as set forth in State by Cooper and Fabio to a summary judgment appeal involving immunity defenses).†

I

The district court dismissed the wrongful imprisonment and invasion of privacy claims on the basis of statutory immunity.† Lom argues that the district court erred by granting summary judgment on these claims, contending that there are genuine issues of material fact with respect to necessary elements for immunity.

Under the Minnesota Tort Claims Act, a county can be liable for the torts of its officers, agents, and employees.† Minn. Stat. ß 466.01, subd. 1 (2000) (including counties in its definition of municipalities); Minn. Stat. ß 466.02 (2000) (stating the general rule of municipality liability).† But in limited circumstances, governmental officers and entities are immune from tort claims.† Minn. Stat. ß 466.03 (2000); see also Angell v. Hennepin County Regíl Rail Auth., 578 N.W.2d 343, 346 (Minn. 1998) (noting that statutory immunity is narrowly construed).†

Minn. Stat. ß 629.341 specifically provides immunity for an arrest by a peace officer for domestic assault.† It states:

Subdivision 1. Arrest.† Notwithstanding section 629.34 or any other law or rule, a peace officer may arrest a person anywhere without a warrant, including at the person's residence, if the peace officer has probable cause to believe that within the preceding 12 hours the person has committed domestic abuse, as defined in section 518B.01, subdivision 2.†


The arrest may be made even though the assault did not take place in the presence of the peace officer.

 

Subd. 2. Immunity.† A peace officer acting in good faith and exercising due care in making an arrest pursuant to subdivision 1 is immune from civil liability that might result from the officer's action.

 

Minn. Stat. ß 629.341, subds. 1, 2 (2000).† The issues for review, therefore, are whether genuine issues of material fact exist on (1) the deputiesí probable cause to arrest Lom, or (2) the deputiesí exercise of good faith and due care in making that arrest?

††††††††††† Probable Cause

The test of probable cause to arrest is whether the objective facts are such that under the circumstances Ďa person of ordinary care and prudence would entertain an honest and strong suspicioní that a crime has been committed.

 

State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quotation omitted).† Where a peace officer is faced with conflicting evidence of the commission of a crime, the officer has discretion to weigh the evidence and resolve that conflict for purposes of the arrest.† See State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984) (explaining that the totality of circumstances can establish a substantial basis for probable cause despite the presence of exculpatory information).† That discretion means that the district court, in deciding whether immunity applies, does not reweigh the evidence to make an independent determination of probable cause, but instead applies an abuse of discretion standard.† Elwood v. County of Rice, 423 N.W.2d 671, 676 (Minn. 1988) (stating that, because domestic disputes are volatile, the courts are reluctant to second-guess officersí judgment regarding whether rapid entry is required to investigate injury).† Probable cause for an arrest exists, for immunity purposes, if evidence known to the officer supports the conclusion that a crime has been committed even though the officer was aware of contrary evidence and gave it lesser weight.† See Olson, 342 N.W.2d at 640.

The facts are undisputed that Lomís wife told the police dispatcher that Lom had beaten her and that she was afraid for her safety; that Lomís wife told Deputy Braaten that Lom grabbed her, pushed her to the ground, and caused the scratches on her arms; and that Lomís wife signed a written statement to that effect.† This evidence supports the deputiesí conclusion that probable cause existed for Lomís arrest.† The deputies were entitled to rely upon this evidence as establishing probable cause even though Lom offered contrary evidence.† Of course, the fact that Lomís wife later recanted her statement could not be known to the deputies at the time of the arrest and is irrelevant to the immunity determination.† Thus, there were no genuine issues of material fact concerning probable cause.

Good Faith and Due Care

Lom argues that there were genuine issues of material fact concerning whether the deputies acted in good faith and with due care.† Although Lom hints that Deputy Braaten may have been biased because he rented a room from Lomís mother-in-law, there is no evidence that this influenced the decision to make the arrest.† Lom argues that there are disputed material facts concerning (1) whether the deputiesí entry to the Lom home was unlawful, and (2) whether the resulting search for the gun was also unlawful.†

Lomís complaint did not allege that the deputiesí entry or search was unlawful.† More importantly, Lom did not submit any evidence to support his assertion that they were.† While he similarly argued to the district court that the deputies entered without knocking, demanded to see the gun, and obtained it over Lomís objection, he did not support those arguments with any evidence.†

Respondentís evidence shows that the report of the domestic dispute presented an exigent circumstance that justified entry to the home.† See State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992) (stating that a warrantless entry under the emergency doctrine is lawful where the facts available to the officer would cause a person of reasonable caution to believe that the entry was appropriate); see also Elwood, 423 N.W.2d at 676.

Even if there had been no emergency, respondentsí evidence shows that the deputiesí entry was proper because Lom gave his consent.† In his deposition, Lom confirmed that he told the dispatcher that he wanted the police to come to his home and to ďstraighten things outĒ when they arrived.† Lom acknowledged that he was not present at the door when the deputies entered, and does not know who opened the door.† Thus, Lom could not refute Deputy Braatenís testimony that Lomís wife opened the door and invited him in.† Lom did agree that there was no violent entry.† This undisputed evidence establishes consent to the deputiesí entry, both by Lom and by Lomís wife.† See State v. Buschkopf, 373 N.W.2d 756, 768 (Minn. 1985) (providing that oneís gestures, conduct, words, and participation in summoning the police may imply tacit consent to a warrantless entry).

Finally, after the deputies were lawfully in the home, and obtained evidence supporting probable cause that a domestic assault had occurred, and that a gun had been involved, it was within the deputiesí discretion to seize the gun to remove the element of danger from the situation.†

Based on this record, the district court correctly determined that there were no genuine issues of material fact and that the respondents are immune from civil liability for the arrest, under Minn. Stat. ß 629.341.

II

Lom claims that Sheriff Medura wrongfully revoked his permit to carry a pistol, based on the domestic assault arrest, and then wrongfully denied his application for a new permit after the domestic assault charges were dropped.† The district court determined that Lomís complaint failed to state a claim because no private cause of action can be implied from the relevant statute, which provides that the exclusive remedy for the ďdenialĒ of a permit is an appeal to the district court.† Minn. Stat. ß 624.714, subd. 12 (stating that a ďperson aggrieved by denial of a permit to carry may appeal the denial to the district court having jurisdiction over the county or municipality wherein the notification or denial occurredĒ).† This court has interpreted ďdenialĒ to include revocation of an existing permit.† See, e.g., In re Application of Hoffman, 430 N.W.2d 210 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988) (construing the term ďdenialĒ contained in Minn. Stat. 624.714, subd. 12 to include revocation of a handgun).†

At oral argument, Lom acknowledged that he did not intend his civil complaint to be an appeal under the statute and he does not ask this court to treat this appeal as an appeal under the statute.† Because the district court properly determined that the statutory remedy of an appeal was exclusive, Lomís complaint failed to state a cause of action for wrongful denial or revocation and must be dismissed.† See Davis v. Great N. Ry. Co., 128 Minn. 354, 358, 151 N.W. 128, 129 (1915) (where a statute creates a right not existing at common law and prescribes a specific remedy for its enforcement, such remedy is exclusive).†

††††††††††† Affirmed.

 



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