This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Demetrius Gatlin as Trustee
for the Estate of Juwan Gatlin,
Sergeant Michael Green, individually and in his
official capacity as a Minneapolis Police Officer, et al.,
Filed May 16, 2006
Hennepin County District Court
File No. WD 01-923
Larry B. Leventhal, David L. Garelick, Larry Leventhal & Associates, Ramsey Hill Professional Center, 319 Ramsey Street, First Floor, Saint Paul, MN 55102-2323 (for respondent)
Jay M. Heffern,
Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Appellants challenge an order denying their motion for summary judgment based on their claims of official immunity and vicarious official immunity. Because appellant police officer’s conduct was not malicious or willful as a matter of law and because there is no genuine issue of material fact, we reverse.
The relevant facts are
undisputed. This case arises from events
that occurred after the May 1997 murder of Anthony Dawson, a member of the
During their recorded interview with Gatlin, Sergeants Green and Carlson made no offer to protect or to relocate Gatlin, but Gatlin apparently was aware that he might become a target after providing information to the police when he stated, “I’m not scared to talk, cause after this I’m gonna have to be gone, regardless if I get some help or not, I’m still gonna be gone.” Evan Rosen, a public defender who represented Gatlin for a brief time on Gatlin’s aggravated-robbery charge, states in an affidavit that Gatlin told him that Gatlin “had expressed his concerns to the Police that the statement not get out on the street” and that “he was assured that the statement that he gave would not be available to anyone outside the Police Department or the County Attorney’s office, except in connection with a trial should his testimony be required.”
Green and Carlson were subsequently assigned new partners. Sergeant Carlson and his new partner,
Sergeant Mark Lenzen, became responsible for the
In March 1998, Gatlin testified
before a grand jury. In April 1998,
Larry McGlennen, the assistant county attorney assigned to the Dawson case,
released Gatlin’s recorded interview with Sergeants Green and Carlson to Hurd’s
attorney. In June 1998, a deputy at the
Green stated in his deposition that between these two calls he talked to assistant
county attorney McGlennen who told him, “I’ll get back to you.” But McGlennen states in an affidavit that he
received a voicemail message from Sergeant Green regarding the mailing and that
by the time he had called Sergeant Green back, the mailing had already been
released. There is no evidence in the
record that prior to the release of the mailing, Sergeant Green made any
attempt to contact Sergeants Carlson and Lenzen, who he knew were in charge of
Carlson first learned of the mailing, possibly through Sergeant Green, sometime
after it had already been sent and immediately tried to contact Gatlin to warn
him. Gatlin learned of the mailing, and personnel
of the Hennepin County Victim Witness Assistance Program provided Gatlin with
money and other assistance to facilitate his relocation to
Respondent Demetrius Gatlin,
Gatlin’s widow and trustee of his estate, sued Green and the City of
Appellants moved for summary judgment on the remaining claims, which the state district court granted in part, but denied as to respondent’s claims of negligence, breach of contract, and wrongful death under Minn. Stat. § 573.02 (2000). The district court denied appellants official immunity and vicarious official immunity on respondent’s negligence claims, concluding that “Sergeant Green’s actions were discretionary in nature and thus subject to official immunity” but that “there are material facts at issue whether [Sergeant Green’s] acts were either malicious or willful in nature that a finder of fact must decide.” Appellants challenge the district court’s denial of their claims of official immunity and vicarious official immunity.
A party may appeal immediately from
an order that denies the party official immunity.
question of whether official immunity exists may be appropriately resolved on
summary judgment. See Elwood v.
Appellants argue that Sergeant Green is entitled to
official immunity on respondent’s negligence claim. Official immunity is a common-law doctrine
that provides that “a public official charged by law with duties which call for
the exercise of his judgment or discretion is not personally liable to an
individual for damages unless he is guilty of a willful or malicious
wrong.” Elwood, 423 N.W.2dat 677(quoting Susla v. State, 311
supreme court describes a “ministerial duty” as “absolute, certain, and
imperative, involving merely the execution of a specific duty arising from
fixed and designated facts”; whereas a discretionary act is one with regard to
which an official must exercise “judgment or discretion.” Johnson
v. State, 553 N.W.2d 40, 46 (
The supreme court defines “malice” as “the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Rico, 472 N.W.2d at 107 (concluding that “willful” and “malicious” are synonymous in the official-immunity context) (quotation omitted). In the context of official immunity, “malice” does not require a showing of “ill will” or “improper motive,” but if a party alleges that an official has acted with such “‘actual malice’ . . . in carrying out his or her duties, that allegation may support the court’s determination that the official’s conduct was not legally reasonable.” Gleason, 563 N.W.2d at 317, 318 n.3. This court, acknowledging that the malice exception is one of the “least easily understood aspects of immunities law,” has concluded that an official defeats a claim that he acted with malice if the official can show that his conduct meets any one of the following three tests:
(1) that the conduct was ‘objectively’ legally reasonable, that is, legally justified under the circumstances; (2) that the conduct was ‘subjectively’ reasonable, that is, taken with subjective good faith; or (3) that the right allegedly violated was not clearly established, that is, that there was no basis for knowing the conduct would violate the plaintiff’s rights.
Here, appellants argue that, as a matter of law, Sergeant Green’s conduct could not be considered malicious or willful because it “did not violate any established right” of Gatlin’s. This is the third of the above tests, which, if satisfied, defeats a malice claim. Respondent does not identify any established rights of Gatlin’s that Sergeant Green violated. To show that an official’s conduct has violated an established right, a plaintiff must show that the conduct violated a “clearly established law.” See Reuter v. City of New Hope, 449 N.W.2d 745, 750 (Minn. App. 1990) (clarifying what “established right” means in the qualified-immunity context), review denied (Minn. Feb. 28, 1990); see also Rico, 472 N.W.2d at 107 (concluding that the malice exception “anticipates liability only when an official intentionally commits an act that he or she then has reason to believe is prohibited”). The fact that a jury could conclude that Sergeant Green made the wrong decision by failing to stop the release of the mailing does not trigger liability if his conduct did not violate any of Gatlin’s established rights. Because the evidence, viewed in a light most favorable to respondent, does not show that Sergeant Green’s decision to not stop the release of Hurd’s mailing of Gatlin’s police-interview transcript violated any of Gatlin’s established rights, we conclude that, as a matter of law, Sergeant Green’s conduct was neither malicious nor willful.
Respondent argues that Sergeant Green owed a special duty of care to Gatlin based on the promise made by Sergeant Green and the city of Minneapolis “to provide protection and relocation assistance” to Gatlin and that the violation of this duty of care is a violation of an established right in the official-immunity context. Respondent cites no authority in support of this argument, and we conclude that it is without merit.
Respondent also argues that Sergeant Green acted “in bad faith” when he authorized the mailing despite knowing that “there was a strong likelihood of a hit on Gatlin” and that Sergeant Green’s “act of overriding all concern expressed in this situation is most certainly willful and malicious.” Respondent, however, falls short of alleging that Sergeant Green acted out of actual malice or ill will toward Gatlin and intentionally failed to stop the release of the mailing for the purpose of having Gatlin killed. Respondent’s bad-faith argument implicates the second of the three tests described above for defeating a malice claim. But appellants only need to prevail on one of the three tests to defeat respondent’s malice claim; therefore, we do not need to analyze whether Sergeant Green acted in bad faith when the record shows that his actions, nevertheless, did not violate an established right of Gatlin’s and that he did not act out of actual malice.
We therefore conclude that Sergeant Green is entitled to official immunity and that the district court erred by denying appellants summary judgment on respondent’s negligence claim.
A government employer may be entitled to vicarious
official immunity from claims based on actions of an employee who is protected
by the official-immunity doctrine. See, e.g., Pletan v. Gaines, 494 N.W.2d 38, 42-43