This opinion will be unpublished and

may not be cited except as provided by

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






Joshua Hansen,


Steven Elskamp, et al.,


Filed September 18, 2002


Peterson, Judge


Renville County District Court

File No. C00197


John E. Mack, Mack & Daby, 26 Main Street, P.O. Box 302, New London, MN  56273 (for respondent)


Scott T. Anderson, Erin K. Munson, Ratwik, Roszak & Maloney, P.A., 300 U. S. Trust Building, 730 Second Avenue South, Minneapolis, MN  55402 (for appellants)


            Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


Respondent Joshua Hansen sued appellants-deputies Steven Elskamp and Douglas Pomplun and their employer, appellant Renville County, for assault and battery.  Respondent also sued the deputies for violation of 42 U.S.C. § 1983, alleging that the deputies used excessive force in arresting him for misdemeanor offenses.  The district court dismissed the section 1983 claim against Pomplum in an earlier order and later granted summary judgment for Elskamp on the section 1983 action based on qualified immunity.  The district court declined to grant official immunity and vicarious official immunity on the assault-and-battery claim.  Appellants challenge the denial of summary judgment on the assault-and-battery claim.  Respondent filed a notice of review, which this court limited to the issue of the dismissal of the section 1983 claim against Elskamp on the ground of qualified immunity.  We affirm.


            While on patrol at about 1:00 a.m. on October 2, 1999, Elskamp saw respondent Joshua Hansen’s car stopped on a scale outside a fertilizer plant that was not open at the time.  Hansen’s car was running, and the headlights were on.  As Elskamp pulled his squad car behind Hansen’s car, Hansen left the scale and drove to his home, a distance of about two-tenths of a mile.  Elskamp followed Hansen, pulled into Hansen’s driveway behind Hansen’s car, and activated the squad car’s red lights.

            There were four passengers in Hansen’s car.  One of the passengers, Daniel Menk, opened the passenger door and ran into the woods.  Elskamp and his passenger, Franklin, Minnesota, police officer Julie Mertens, pursued Menk.  With their guns drawn, Elskamp and Mertens ran past Hansen’s car yelling at Menk to stop and threatening to shoot if he did not.

            Elskamp turned around and approached Hansen’s car with his gun drawn.  Hansen stated in an affidavit:

Then Elskamp * * * stuck his gun in my temple so that it was touching my temple with the gun, and said “I’ll blow your fucking head off.”  Then he pulled me out of the car, handcuffed me, and started slamming me into the side of the car.  He slammed me into it twice, and then I put my heel into the ground so he couldn’t slam me into the car as easily.  Then my mother came out and asked what was going on.  Elskamp said, “Get the fuck in the house.”  Then he turned me around and started walking me toward the squad car.


My dad then pulled into the driveway.  Elskamp asked me who was pulling into the driveway, and I said it was my dad.  Elskamp said, “Does he want to go to jail too.”  Then he walked up to my dad and said, “Just who the hell are you?”  Then Elskamp stuffed me into the police car violently.  As I was in the car, they started questioning me.


            Hansen claims that when Elskamp handcuffed him, he applied the handcuffs too tightly, causing black and blue marks on his wrists.  Hansen was initially handcuffed with his hands behind him, then with his hands in front of him.  The handcuffs were removed after Hansen complained, before he was transported to jail.

            Pomplun arrived while Hansen was in the squad car.  According to Hansen, Pomplun talked Elskamp into bringing Hansen to jail instead of ticketing him by mail.  On the way to the jail, Elskamp drove at an excessive rate of speed, 90 to 120 miles per hour.  Elskamp told Hansen that he would not have lost any sleep if he had killed Hansen and that if the arrest had occurred in the cities, Hansen would “have a triangle the size of a pea filed in [his] head.”

            At the jail, Pomplun said that Hansen was lucky that no one would be attending his funeral in three days.  Pomplun and Elskamp threatened to send Hansen to prison, where he would be raped and beaten, if he did not agree to work as a drug informant for them.


            Official immunity

            Denial of summary judgment based on governmental immunity is immediately appealable.  Watson by Hanson v. Metro. Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996).  In reviewing an order denying summary judgment, the appellate court determines whether genuine issues of material fact exist and whether the district court erred in applying the law.  Gleason v. Metro. Council Transit Operation, 582 N.W.2d 216, 218-19 (Minn. 1998).  

            Whether immunity applies is a legal question subject to de novo review. 219.  The party claiming immunity has the burden of demonstrating facts showing it is entitled to immunity.  Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).  Official immunity is a common-law doctrine protecting government officials “from suit for discretionary actions taken in the course of their official duties.”  Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998) (citations omitted).  The doctrine protects government officials from “the fear of personal liability that might deter independent action.”  Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988).  Even if a duty is discretionary, official immunity will not protect an official who committed a willful or malicious wrong.  Rico v. State, Comm’r Veterans Affairs, 472 N.W.2d 100, 106-07 (Minn. 1991).

In determining whether conduct is discretionary for purposes of official immunity,

the critical determination is whether the nature of the official’s actions is discretionary or ministerial.  A discretionary act involves individual professional judgment, reflecting the professional goal and factors of a situation.  “[A] ministerial duty is one in which nothing is left to discretion; it is absolute, certain, and imperative, involving merely execution of a specific duty arising from fixed and designated facts.”


Huttner v. State, 637 N.W.2d 278, 284 (Minn. App. 2001) (quotation omitted), review denied (Minn. Nov. 13, 2001).  Whether an act is discretionary is determined by the court as a matter of law. Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 n.5 (Minn. 1999).

It is undisputed that Hansen’s car was stopped, running with its headlights on, at 1:00 a.m. on the scale of a fertilizer plant that was closed.  Similar conduct has been held to provide a sufficient basis for an investigatory stop.    See Thomeczek v. Comm’r of Pub. Safety, 364 N.W.2d 471, 472 (Minn. App. 1985) (finding sufficient factual basis to suspect unlawful activity where police encountered a truck that was legally parked, with its lights on and motor running, in front of a vacant lot at 11:18 p.m. in a residential development undergoing construction, an area where theft, vandalism, or burglary might occur); Olmscheid v. Comm’r of Pub. Safety, 412 N.W.2d 41, 42 (Minn. App. 1987) (investigatory stop upheld where police stopped a car on a dead-end street behind businesses after hours, without observing any illegal activity or driving conduct, and having not received any calls reporting illegal activity that evening or the previous evening, although a car dealership in the area had recently experienced theft), review denied (Minn. Nov. 6, 1987). Thus, Elskamp was performing a discretionary act within the scope of his official duties in stopping Hansen. See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 (Minn. 1994) (decision to stop and detain a criminal suspect “requires a significant degree of independent judgment and discretion”); Leonzal v. Grogan, 516 N.W.2d 210, 213 (Minn. App. 1994) (“Generally, police officers exercising their official duties are classified as discretionary [officers] * * * and are thus afforded official immunity in executing those duties.”), review denied (Minn. July 27, 1994).

Because Menk fled, Elskamp’s decision to handcuff Hansen and place him in the back of the squad car was also discretionary.  Pletan v. Gaines, 481 N.W.2d 566, 569 (Minn. App.), aff’d 494 N.W.2d 38 (Minn. 1992) (circumstances where an officer pursues a fleeing suspect and must “assess rapidly changing facts and apply his own judgment to those facts” present the type of exercise of discretion that compels application of the doctrine of official immunity).

            The next question is whether the district court properly determined that a fact issue existed as to whether Elskamp acted with malice.  Malice that defeats official immunity is not necessarily personal animus or bad faith, but rather is “the intentional doing of a wrongful act without legal justification” or the “willful violation of a known right.”  Id. at 107 (citation omitted).

In determining whether an official has committed a malicious wrong, we consider whether the official has intentionally committed an act that he or she had reason to believe is prohibited.


Beaulieu, 518 N.W.2d at 571-72 (citation omitted). The 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.


Id. at 571.  “Whether an officer acted maliciously is usually a question of fact for the jury.”  Kelly, 598 N.W.2d at 664 n.5 (citation omitted).

Hansen cites the following evidence as showing malice:  Elskamp approached Hansen’s car with his gun drawn; Elskamp put his gun to Hansen’s temple and threatened to blow his head off; Elskamp pulled Hansen out of the car, handcuffed him, and twice slammed him into the side of the car; and Elskamp stuffed Hansen violently into the squad car.  Hansen had committed only a misdemeanor alcohol offense, and the only offense observed by Elskamp was trespassing on a scale.  Hansen did not resist Elskamp and made no attempt to flee, either before or during the stop.  Elskamp’s alleged conduct during the stop, together with his comments to Hansen on the way to jail, are sufficient to raise a genuine issue of material fact on the issue of malice.  See Johnson v. Morris, 453 N.W.2d 31, 41-42 (Minn. 1990) (holding that a fact issue existed regarding malice where the officer pointed a gun at the suspect’s head and threatened to shoot him when the officer did not have probable cause to believe that the suspect had committed a felony or that any of the officers were in danger of death or great bodily harm).

            Qualified immunity

            Qualified immunity protects government officials performing discretionary functions from civil liability so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982) (citations omitted).  Qualified immunity is a bar to a 42 U.S.C. § 1983 claim.  Johnson, 453 N.W.2d at 38-39.  A “defendant relying upon an immunity bears the burden of proving he or she fits within the scope of the immunity.”  Rehn, 557 N.W.2d at 333.  “But once the official raises qualified immunity, the plaintiff must establish that the [official’s] action was objectively legally unreasonable.”  Stone v. Badgerow, 511 N.W.2d 747, 751 (Minn. App. 1994) (quotation omitted), review denied (Minn. Apr. 19, 1994).

            Hansen argues that if a fact issue exists regarding whether Elskamp acted with malice for purposes of official immunity, the district court erred in applying qualified immunity.  The standards for qualified and official immunity, however, are not the same.  See Johnson, 453 N.W.2d at 40-42 (affirming district court’s grant of summary judgment for officer based on qualified immunity but holding that fact issue existed regarding whether officer acted with malice for purposes of official immunity).

            When addressing a qualified-immunity claim, the first question is whether the facts, viewed in the light most favorable to the plaintiff, show that the officer violated a constitutional right.  Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001).

If a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.



Use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness.  * * * The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.  * * * If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate.


Id., 533 U.S. at 202, 121 S. Ct. at 2156-57 (citations omitted).  “Immunity applies ‘if officers of reasonable competence could disagree on this issue [of lawfulness].’”  Johnson, 453 N.W.2d at 39 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986)).

The district court properly concluded that Elskamp’s conduct in putting a gun to Hansen’s head was sufficient to prove a constitutional violation.  See Robinson v. Solano County, 278 F.3d 1007, 1014-15 (9th Cir. 2002) (recognizing that pointing a gun at an unarmed suspect who poses no particular danger can be a constitutional violation).

            The question, thus, is whether Elskamp had notice that his conduct was clearly unlawful.  In Johnson, the supreme court specifically declined to decide whether pointing a gun at a suspect’s head and threatening to shoot during the course of an arrest could constitute excessive force.  453 N.W.2d at 37.  The Johnson court did note that several federal courts of appeal had held that the mere threat of use of force, without more, was insufficient to trigger a section 1983 excessive-force claim.  Id.  See, e.g., Hinojosa v. City of Terrell, 834 F.2d 1223, 1230 (5th Cir. 1988) (holding that pointing a gun at a suspect without shooting, was not excessive force);  Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (finding strong show of force coupled with threat to use it against violent sexual rapist was not unreasonable).  The Eighth Circuit Court of Appeals adopted the reasoning in HinojosaEdwards v. Giles, 51 F.3d 155, 157 (8th Cir. 1995).

            Hansen did not cite, and we did not find, any controlling authority, either state or federal, in effect at the time Elskamp acted, holding that pointing a gun at an unarmed suspect could give rise to a section 1983 excessive-force claim.  The law, therefore, did not give Elskamp notice that his conduct was clearly unlawful.[1]

            Hansen argues that the district court should not have considered the issue of qualified immunity on appellants’ second summary-judgment motion because appellants did not file a motion for reconsideration under Minn. R. Gen. Pract. 115.11.  But Minn. R. Civ. P. 56.02 permits a summary-judgment motion “at any time” and does not prohibit a second summary-judgment motion, and appellants’ second summary-judgment motion was not the equivalent of a motion for reconsideration.  It was based in part on new information obtained during discovery that occurred following the first summary judgment and on Hansen’s intentional-infliction-of-emotional-distress claim that was added following the first summary-judgment motion.  Although many of appellants’ arguments were similar or identical to those made in connection with the first motion, the district court found that the second summary-judgment motion was properly before the court and addressed the qualified-immunity issue a second time based on federal cases interpreting the qualified-immunity standard that had been issued following the first summary-judgment order.  The district court did not err in addressing the issue of qualified immunity on appellants’ second summary-judgment motion.


[1]Before the district court, Hansen also alleged excessive force based on Elskamp slamming him against the car, pushing and shoving him while escorting him from his car to the squad car, and applying the handcuffs too tightly, although the handcuffs were removed after Hansen complained.  In his brief on appeal, Hansen limited his excessive-force claim to the issue of Elskamp’s conduct with the gun.  In any event, the district court properly concluded that the additional conduct objected to by Hansen was insufficient to give rise to a section 1983 claim.  See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871-72 (“Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.  * * * Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers violates the Fourth Amendment.”) (citations omitted); Johnson, 453 N.W.2d at 37 (applying handcuffs too tightly not excessive force where suspect did not complain and sustained no permanent injury).