This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1892

Sheila Green as parent and natural

guardian of Carmela Green, a minor,

Appellant,

vs.

BCE Development Properties, Inc.,

d/b/a Minneapolis City Center, et al.,

Respondents,

City of Minneapolis, et al.,

Defendants.

Filed April 8, 1997

Affirmed

Willis, Judge

Hennepin County District Court

File No. 938348

Larry E. Reed, Hassan & Reed, Ltd., 1000 Reed Professional Center, 2311 Wayzata Boulevard, Minneapolis, MN 55405 (for Appellant)

Karna A. Berg, Kurt J. Niederluecke, Briggs and Morgan, P.A., 2200 First National Bank Building, St. Paul, MN 55101 (for Respondents)

Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Mansur, Judge.[*]

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Carmela Green was injured following her arrest in Minneapolis City Center for disorderly conduct. On appeal, Green claims the district court erred in (1) refusing to rule as a matter of law that respondent Daniel Erspamer wrongfully arrested her, (2) dismissing her claims against respondent BCE Development Properties, Inc. (BCE), (3) improperly instructing the jury, (4) excluding expert testimony, and (5) granting Erspamer qualified immunity on her claim under 42 U.S.C. § 1983. We affirm.

FACTS

At approximately 5:30 p.m. on January 5, 1991, Timothy Koehler, a security guard employed by BCE, observed a group of teenaged girls yelling profanities in Minneapolis City Center. Koehler radioed for assistance and told the girls, including Carmela Green, to quiet down and leave the building. Koehler and Erspamer, a state trooper who was also a BCE security guard, testified that although Green was moving toward the exit, she was boisterous, swearing, and jumping up and down. When Green was near the exit, Erspamer, in his capacity as a state trooper, arrested her for disorderly conduct.

The two guards placed Green in a holding room while they completed reports. The guards refused to release Green to Colnese Jones, the woman who had accompanied her to City Center, telling Jones that Green's mother could pick her up at the juvenile center. At approximately 7:00 p.m., the guards called Minneapolis police to transfer Green to the juvenile center, handcuffing her before the transfer. Officer E.T. Nelson testified that as he was placing Green in the car, she pulled away. Nelson pushed Green back into the car, knocking her front teeth loose and puncturing her lip.

Green brought an action against BCE, Erspamer, Koehler, the city, the police chief, and the two officers who transferred her to the juvenile center. Before trial, the district court granted respondents' motion for summary judgment on all claims against them except those based on false arrest and federal law. At the close of the evidence, the district court granted BCE's motion for a directed verdict on the 42 U.S.C. § 1983 claim. The district court reserved the issue of respondents' immunity from suit.

By special verdict, the jury found that (1) Erspamer did not unlawfully arrest Green, (2) BCE did not have the authority to control Erspamer's conduct in arresting Green, (3) Nelson committed battery and intentionally inflicted emotional distress on Green, (4) a reasonable and prudent officer in Erspamer's position could believe he had the legal authority to arrest Green for disorderly conduct, and (5) Erspamer, but not Koehler, wrongfully confined Green under color of state law. The jury awarded Green $200,327 in compensatory damages, attributing $5000 of the damages to Erspamer's conduct and $195,327 to Nelson's actions.

After the jury returned its verdict, the district court denied Erspamer's motion for a directed verdict based on qualified immunity, and Erspamer moved for judgment notwithstanding the verdict. The district court concluded that Erspamer was entitled to qualified immunity and vacated the judgment against him.

D E C I S I O N

1. Probable Cause to Arrest.

If an officer has probable cause to make an arrest, the arrest is lawful. Lundeen v. Renteria, 302 Minn. 142, 148, 224 N.W.2d 132, 136 (1974). Green contends the district court erred in not ruling as a matter of law that Erspamer had no probable cause to arrest her for disorderly conduct. We disagree.

Green incorrectly relies on cases holding that the state cannot deter the exercise of First Amendment rights by unnecessarily punishing constitutionally protected activity along with unprotected activity. See, e.g., R.A.V. v. St. Paul, 505 U.S. 377, 396, 112 S. Ct. 2538, 2550 (1992) (striking down ordinance that prohibited speech based on nonproscribable content, rather than proscribable content such as fighting words, obscenity, and defamation); In re Welfare of S.L.J., 263 N.W.2d 412, 420 (Minn. 1978) (reversing conviction for disorderly conduct where retreating girl swore at officers in their squad car). Here, Erspamer testified that Green's conduct was alarming others at City Center and that he arrested Green based on her conduct as a whole.

The facts and circumstances of each case determine whether particular conduct constitutes disorderly conduct. Obscenities directed at a police officer may constitute disorderly conduct under certain circumstances.

State v. Ackerman, 380 N.W.2d 922, 926 (Minn. App. 1986). Because there was evidence that Erspamer had probable cause to arrest Green, the district court did not err in submitting the issue of probable cause to arrest to the jury.

Green also claims that Erspamer should have issued her a citation rather than arresting her because disorderly conduct is a misdemeanor. See Minn. Stat. § 609.72, subd. 1 (1996) (providing that disorderly conduct is misdemeanor). An officer, however, is not required to issue a citation to, rather than arrest, an individual who commits disorderly conduct:

Law enforcement officers * * * shall issue citations to persons subject to lawful arrest for misdemeanors, unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct * * *.

Minn. R. Crim. P. 6.01, subd. 1(1)(2) (emphasis added). Here, there is evidence that it was reasonable for Erspamer to believe Green would have continued to engage in disorderly conduct.

2. BCE's Liability.

Green claims that the district court erred in directing a verdict on Green's claim against BCE under 42 U.S.C. § 1983 (1994). We disagree. A private entity is not liable for the acts of police officers acting in their official capacity, even though the entity pays such officers to perform private services. Graalum v. Radisson Ramp, Inc., 245 Minn. 54, 58, 71 N.W.2d 904, 907 (1955); see also Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1433 (10th Cir. 1984) (stating that "a private entity that employs an off-duty police officer is not vicariously liable for its employee's deprivations of citizens' civil rights"), cert. granted and vacated on other grounds sub nom., City of Lawton v. Lusby, 474 U.S. 805 (1985), cert. denied, 474 U.S. 818 (1985). The record shows that Erspamer arrested Green in his capacity as a state trooper, pursuant to Minn. Stat. § 299D.03, subd. 1(12) (1996), and there is no evidence that any BCE policy operated to deprive Green of her constitutional rights.

3. Jury Instructions.

District courts have broad discretion in selecting jury instructions and special verdict questions. Dang v. St. Paul Ramsey Med. Ctr. Inc., 490 N.W.2d 653, 658 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). Errors in instructions do not warrant a new trial unless "they destroy the substantial correctness of the [instruction], cause a miscarriage of justice, or result in substantial prejudice." D.H. Blattner & Sons, Inc. v. Firemen's Ins. Co. of Newark, 535 N.W.2d 671, 675 (Minn. App. 1995) (citation omitted), review denied (Minn. Oct. 18, 1995). "If answers to special verdict questions can be reconciled in any reasonable manner consistent with the evidence and its fair inferences, the denial of a new trial must stand." Carnahan v. Walsh, 416 N.W.2d 187, 189 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988).

a. Unlawful arrest.

Green challenges the district court's instruction regarding unlawful arrest. She argues that respondents were not entitled to an instruction on official immunity. We disagree.

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 wilful or malicious wrong.

Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991). Whether an official acted maliciously or willfully is usually a fact question for the jury. Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990).

Green claims that respondents did not plead official immunity as an affirmative defense, as required by Minn. R. Civ. P. 8.03. Because Erspamer was named as a defendant for the first time in Green's amended complaint, respondents satisfied rule 8.03 by pleading official immunity in their amended answer.

Green also claims that Erspamer was not entitled to official immunity because the arrest was governed by BCE's security policies for City Center. However, Erspamer arrested Green in his capacity as a state trooper. See Minn. Stat. § 299D.03, subd. 1(12) (authorizing a state trooper to arrest an individual who commits an offense in his presence); see also State v. Childs, 269 N.W.2d 25, 27 (Minn. 1978) (holding that arrest by an off-duty officer who was working as a security officer was lawful and based on probable cause).

Green also challenges specifically that portion of the district court's instruction stating that a police officer is authorized to arrest a person "whenever the officer reasonably, even if mistakenly, believes that such person has committed a misdemeanor offense in the presence of the officer." (Emphasis added.) The Supreme Court, however, has stated that officers should not be held liable where they "reasonably but mistakenly conclude that probable cause is present." Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3039-40 (1987). Probable cause may exist at the time an officer made his assessment even though it later turns out that he was wrong. State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982). The district court's instruction on unlawful arrest was not error.

b. Disorderly conduct.

Green challenges the district court's instruction on disorderly conduct, arguing that the court did not apply constitutional principles governing speech. The district court's disorderly conduct instruction, however, parallels Minn. Stat. § 609.72, subd. 1(3), which defines disorderly conduct as:

[engaging] in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

The instruction was not error because Erspamer arrested Green for violation of section 609.72 based on her conduct as a whole rather than her speech alone:

It's the totality of the circumstances. It was the boisterous conduct, the jumping up and down, the kicking, the waiving of the arms, the obscene language, it was the entire incident down to the point where when I saw the mother and the children [acting alarmed].

Moreover, the supreme court has upheld the constitutionality of that statute. See S.L.J., 263 N.W.2d at 419 (construing the phrase that contemplates punishing speech to refer only to "fighting words"); see also Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 1785 (1971) (defining fighting words as those that are "inherently likely to provoke violent reaction").

c. Liability for events after leaving City Center.

Green argues that the district court erred in instructing the jury that respondents were not liable for any injury or damages resulting from "any actions, after transfer of the plaintiff to the Minneapolis police officers." This instruction prohibited the jury from assigning to Erspamer damages that did not proximately result from his conduct. The instruction was not error because the supreme court has rejected a "but for" test of causation in favor of a "proximate cause" standard. Kryzer v. Champlin Am. Legion, 494 N.W.2d 35, 36-37 (Minn. 1992).

4. Exclusion of Janacek's Testimony.

Green argues that the district court erred in excluding the testimony of Dr. James Janacek, a psychiatrist she proposed to use to establish her damages. "[E]videntiary rulings * * * are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error." Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986). We need not review the district court's decision to exclude Janacek's testimony because Green did not assign error to that ruling in her motion for a new trial.

5. Judgment Notwithstanding the Verdict (JNOV).

The decision whether to grant a JNOV motion is a question of law. Edgewater Motels v. Gatze, 277 N.W.2d 11, 14 (Minn. 1979). The district court shall grant a JNOV motion if the moving party would have been entitled to a directed verdict at the close of evidence. Minn. R. Civ. P. 50.02(a). The district court may grant JNOV only if there is overwhelming evidence on one side that precludes reasonable minds from differing as to the proper outcome. Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983).

a. Timeliness of motion.

Green argues that Erspamer's JNOV motion was untimely. Such motions must be made within 15 days after a general verdict or service of notice of the filing of the decision or order. Minn. R. Civ. P. 50.02(c); Minn. R. Civ. P. 59.03. Erspamer's JNOV motion was served on March 26, 1996, within 15 days after Green's service on March 12, 1996, of notice of the filing of the district court's order denying Erspamer's motion for a directed verdict. The motion was, therefore, timely.

b. Qualified immunity.

Green contends the district court erred in concluding that Erspamer was entitled to qualified immunity from Green's claim of wrongful confinement under 42 U.S.C. § 1983. Section 1983 provides a cause of action against a person who, acting under color of state law, violates an individual's constitutional or statutory rights. Id.

"[T]he qualified immunity defense is a bar to a 42 U.S.C. § 1983 claim." Morris, 453 N.W.2d at 39. An officer performing discretionary functions is entitled to qualified immunity from suit if he did "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). The qualified immunity standard protects "'all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537 (1991) (citation omitted).

The jury found that Erspamer had probable cause to arrest Green, which provides legal justification for the arrest "and for a brief period of detention to take the administrative steps incident to arrest." Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S. Ct. 854, 863 (1975). In evaluating whether the length of detention in a particular case is unreasonable, courts must allow a substantial degree of flexibility. County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670 (1991).

The record shows that Erspamer and Koehler detained Green for approximately 90 minutes while completing the arrest and incident reports required to transfer her to the juvenile center, and they refused to release Green to the woman who had accompanied her to City Center. Green contends Erspamer clearly violated Minn. Stat. §§ 260.165 and 260.171 (1996) and thereby is not entitled to qualified immunity.

Minn. Stat. § 260.165, subd. 1(b), permits an officer to take a child into immediate custody "[i]n accordance with the laws relating to arrests." Section 260.171, subd. 1 provides that a child taken into custody pursuant to 260.165 "shall be released to the custody of a parent, guardian, custodian, or other suitable person." See also Minn. Stat. § 260.015, subd. 14 (1996) (defining custodian as a person who is legally obligated to provide care and support for a minor or who is in fact doing so). On the other hand, Minn. Stat. § 260.173 (1996) provides that a child taken into custody pursuant to section 260.165 may be detained for up to 24 hours at a secure detention facility. Id., subd. 1. We agree with the district court that

in view of the confusing and arguable inconsistency inherent to the statutes relative to the detention of juveniles, Defendant Erspamer's conduct cannot be construed to have been unreasonable or in violation of clearly established statutory or constitutional rights of which a reasonable person should have known.

Respondents contend the district court erred in denying Erspamer's motion for JNOV on the jury's verdict that Erspamer "acting under color of law, wrongfully confine[d] Plaintiff Carmela Green, thereby depriving her of her constitutional right to liberty without due process of law." The issue is moot because of our ruling that Erspamer has qualified immunity from Green's section 1983 wrongful confinement claim.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.