This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Joe “Kim” Clingan,
Anoka County, et al.,
Filed January 21, 2003
Anoka County District Court
File No. C4017785
John M. Steele, Attorney at Law, 418 Groveland Avenue, Minneapolis, MN 55403 (for appellant)
Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303-2265 (for respondents)
Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Wright, Judge.
G. BARRY ANDERSON, Judge
In this dog-bite case, appellant Joe “Kim” Clingan, challenges the district court’s summary judgment that the doctrine of official immunity protects a deputy sheriff from liability for injuries caused by his canine partner during a police-dog training exercise. Because we conclude that the deputy exercised discretion during the training exercise and respondents are entitled to the protections of the official immunity doctrine, we affirm.
This case involves a dog bite occurring during a police canine training exercise. Appellant Joe “Kim” Clingan a retired police officer from Fort Collins, Colorado, is a nationally recognized expert in the field of police canine handling and administration of police canine units. Appellant was in Minnesota to serve as chief judge during United States Police Canine Association (USPCA) regional certification trials held at Glencoe High School. Respondent Scott Knealing, an Anoka County Sheriff Deputy, and his German shepherd canine partner, Ice, were participating in the certification trials to fulfill the Anoka County Sheriff Department’s annual re-certification requirements.
Knealing was not satisfied with Ice’s performance during the box search exercise. The box exercise is designed to train dogs to locate a person hiding in a building. During the exercise the dog is supposed to alert its handler by barking once it detects someone in the box. Knealing was concerned that Ice’s response during the exercise was not vocal enough and that someone unfamiliar with Ice would not interpret Ice’s actions as an alert. Appellant agreed to work with Knealing and Ice.
Knealing, Clingan, and McLeod County Deputy Sheriff Aaron Weimiller, who had agreed to help in the training exercise, took Ice out to the high school football field where the boxes were set up. Weimiller got Ice’s attention by hissing and yelling at the dog. Once Weimiller had Ice’s attention, appellant told Weimiller to get into the box. As Ice was becoming increasingly agitated, appellant instructed Knealing on how to handle the dog. Appellant felt Knealing was not properly controlling Ice. Several times during the exercise, appellant told Knealing to shorten the 15-foot leash Knealing selected for this exercise. Appellant felt that Knealing was too far away from Ice to work effectively with the dog.
Appellant tried to get Knealing’s attention and demonstrate the proper way to hold the leash and control the dog. Appellant was moving his arms in order to show the correct manner to handle Ice. Ice noticed appellant and in “one fluid movement” jumped, and made contact with appellant.
The parties do not agree on whether Ice actually bit appellant or just butted heads with him. But after Ice made contact with him, appellant immediately began bleeding. Appellant initially said he was fine and “it was my fault, * * * I just got too close * * * I should have known better.” Appellant eventually went to the hospital and was found to have received a puncture wound through his cheek, lost a tooth, and suffered a great deal of pain as a result of this incident.
Appellant sued Anoka County, the sheriff’s department, and Knealing, alleging negligence and strict liability under Minnesota’s dog-bite statute. Minn. Stat. § 347.22 (2000). Respondents moved for summary judgment claiming official and vicarious immunity. The district court granted summary judgment, holding that Knealing was not performing a “ministerial duty” during the incident but was in fact exercising his professional judgment and discretion, and therefore his actions were protected by the doctrine of official immunity. Appellant argues in this appeal that the district court failed to properly apply the doctrine of official immunity. Respondents moved to strike portions of the appellant’s brief and accompanying appendix, arguing that Weimiller’s deposition and Ice’s animal apprehension reports are not part of the record.
“On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). A grant of summary judgment is appropriate when the matter before the district court has no genuine issues of material fact and one party in entitled to judgment as a matter of law. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Whether government entities or employees are protected by official immunity is a question of law that appellate courts review de novo. Gleason v. Metropolitan Counsel Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998).
A public official is entitled to immunity from state law claims when the official’s duties require the exercise of discretion and judgment. Johnson v. Morrison, 453 N.W.2d 31, 41 (Minn. 1990). “Official immunity protects all discretionary decisions made by a public figure, but does not protect the ‘ministerial duties’ of a public official, that is, duties that are absolute, certain or imperative.” Dokman v. County of Hennepin, 637 N.W.2d 286, 296 (Minn. App. 2001) (quotation omitted), review denied (Minn. Feb. 28, 2002). This doctrine protects government officials from the fear of litigation that might “deter independent action and impair effective performance of their duties.” Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988). Whether a government official is granted official immunity is determined by a two step test: (1) were the alleged acts discretionary or ministerial; and (2) were the alleged acts, even if discretionary carried out in a malicious or willful manner, thus forfeiting any immunity protection. Dokman, 637 N.W.2d at 296.
An act is discretionary if the official must exercise some “judgment or discretion.” Johnson, 553 N.W.2d at 41 (quoting Elwood, 423 N.W.2d at 677). “A ministerial act involves merely the execution of a specific, absolute duty.” Dokman, 637 N.W.2d at 296. Law enforcement officers “charged with the duty to prevent crime and enforce the laws are not purely ‘ministerial officers’ in that in many of their duties are of an ‘executive character involving the exercise of discretion.’” Elwood, 423 N.W.2d at 678 (quoting Cook v. Trovatten, 200 Minn. 211, 224, 274 N.W.2d 165, 167 (1937)). “To encourage responsible law enforcement * * * police are ‘afforded a wide degree of discretion precisely because a more stringent standard could inhibit action.’” Pletan v. Gaines, 494 N.W.2d 38, 40 (Minn. 1992) (quoting Elwood, 423 N.W.2d at 678). Whether a law enforcement officer’s actions merit the protection of official immunity hinges on the individual facts of each case. Duellman v. Erwin, 522 N.W.2d 377, 379 (Minn. App. 1994), review denied (Minn. Dec. 20, 1994). Police officers are generally considered discretionary officials. Johnson, 453 N.W.2d. at 42.
Although the Anoka County Sheriff’s Department expects canine officers to fulfill certain training requirements, how those requirements are met is largely at the canine officer’s discretion. On his own, Knealing decided to attend the USPCA regional certification trials. Knealing was dissatisfied with Ice’s performance in the box exercise. There is no better example of discretion than the fundamental and basic decision made here by Knealing to allow appellant to assist in Ice’s training.
But there were other discretionary actions taken by Knealing. The deputy used his discretion in deciding whether to allow Weimiller to participate in the exercise and in deciding what equipment to use during the exercise to control Ice. Knealing also used discretion in deciding how to handle Ice during the training session and perhaps most importantly, Knealing had to use his professional judgment on how best to protect the safety of everyone participating in the exercise.
These decisions are not as weighty as the split second, life and death decisions many officers must make while performing their duties. See Pletan, 494 N.W.2d at 41 (police officer was deemed to be protected from liability when a shoplifter’s car that the officer was chasing in a high-speed pursuit, struck and killed a young boy because the decision to engage in and continue a high-speed chase “involves the weighing of many factors.”). But neither does this case involve the purely ministerial acts that are denied immunity protection. See Duellman, 522 N.W.2d at 380 (police officer’s decision to assist another officer at the accident scene was discretionary, but his decision on where to park his car was ministerial). Although this accident took place during a training exercise while Knealing and Ice were neither on duty nor facing an emergency, these factors are not necessary to apply the immunity doctrine. Id. All that is needed to apply the doctrine of official immunity are circumstances requiring an officer to exercise discretion. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 (Minn. 1994). Here, the training exercise that led to appellant’s injury required Knealing to exercise judgment and discretion, thus entitling him to the protection of official immunity. Further, because Knealing is immune from liability, the county is also entitled to vicarious immunity protection as well. See Pletan, 494 N.W.2d at 42 (holding that if a municipal employee is found to have immunity, the claim against the employer should be dismissed as well).
We are not unsympathetic to the injuries appellant has suffered, particularly in light of his travel to Minnesota to assist in canine and police officer training. But the discretionary decisions made by Knealing are such that the district court properly dismissed appellant’s complaint on the grounds that respondents are immune from liability based on official immunity. We affirm the district court on this issue.
We also reject appellant’s claim that Knealing is deprived of immunity because he acted in a willful and malicious manner. Immunity is lost if a government official acts in a malicious or willful manner. Dokman, 637 N.W.2d at 296. “Malice is defined as ‘the intentional doing of a wrongful act without legal justification or excuse * * * the willful violation of a known right.’” Id. (quoting Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). A determination of malice requires an inquiry into the “legal reasonableness of an official’s actions.” Id. (quoting State by Beaulieu, 518 N.W.2d 567, 571 (Minn. 1994)). In analyzing appellant’s claim, we simply note that the district court record contains no evidence that Knealing acted in a willful and malicious manner. We therefore affirm the summary judgment of the district court’s rejection of this argument.
Finally, respondents contend that appellant has submitted material in his brief and accompanying appendix that is not part of the record. In particular, respondents argue that Ice’s “Bite and Hold” records and Weimiller’s deposition were never incorporated into the district court record and should be stricken. Rule 110.01 to the Minn. R. Civ. App. P. states, “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.” Moreover, “[t]his court will grant a motion to strike material submitted in a party’s appendix when that material did not come before the trial court.” Cressy v. Grassmann, 536 N.W.2d 39, 43 (Minn. App. 1995), review denied (Minn. Sept. 28, 1995) (citation omitted). These reports and the Weimiller deposition are not part of the district court record and we therefore grant respondents’ motion to strike, these items play no role in the review of this matter.
 The trials are designed to ensure that the dog and its handler meet the minimal standards promulgated by the USPCA.
 Appellant designed an exercise where another K-9 officer, Deputy Weimiller of McLeod County, would agitate Ice and then “get into a large box and continue to agitate the dog so the dog’s entire focus [would be] on the suspect in the box.” Ice would not “be allowed to touch the box or get close enough to the box to touch anything and * * * [Weimiller] would continue to agitate until the dog barked [or] he reached a frustration level that he would bark at which point [Ice] would be rewarded by getting” to bite Weimiller on a padded sleeve.
 It was appellant who suggested the use of a 15-foot leash instead of the customary six-foot leash that is normally used in these exercises.
 We note although not precedential, in prior unpublished decisions, this court has been reluctant to deprive a canine officer of the protections of official immunity when their canine partner injures another person. Armstrong v. County of Sherburne, 2000 WL 1809075 (Minn. App. Dec. 12, 2000), Christensen v. County of Kandiyohi, 1993 WL 459894 (Minn. App. Nov. 9, 1993), review denied (Minn. Jan. 14, 1994). Further, although Minn. Stat. § 347.22 (2002) imposes strict liability on all those whose dogs injure another person, none of the reported cases address injuries caused by police dogs. We are skeptical, given the high risk nature of law enforcement and the manner in which dogs are used by the police, that the legislature intended the dog bite statute to extend to police dogs. And, absent specific legislative direction, we are unwilling, given the facts of this case, to extend the reach of the statute.
 Appellant’s argument largely turns on the predisposition of Ice to aggressive behavior and the knowledge of this predisposition by the respondents through the bite and hold records. As explained elsewhere in this opinion, these records are not properly before us. But even if this material were considered, appellant still could not demonstrate the unreasonable risk to safety and welfare of others needed to prove malice. Kari v. City of Maplewood, 582 N.W.2d 921, 924 (Minn. 1998). To the contrary, Knealing was concerned about his dog’s performance and wanted help strengthening Ice’s ability to alert and protect his handler from danger. Likewise, the exercise in which Ice injured appellant took place on a football field away from other people and dogs, Knealing used a leash, tried his best to control Ice and Weimiller wore protective gear: all factors indicating that Knealing was concerned about the safety and welfare of others.