This opinion will be unpublished and

may not be cited except as provided by

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




Kevin B. Gustafson,



Officer Martin Book, et al.,


Filed October 14, 1997

Reversed and remanded

Lansing, Judge

Isanti County District Court

File No. C296834

Clyde E. Miller, Miller Law Offices, Ltd., 307 South Main Street, Cambridge, MN 55008 (for appellant)

Hubert H. Humphrey III, Attorney General, Craig L. Engwall, Assistant Attorney General, Suite 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondents)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.



In an appeal from the district court's grant of summary judgment on the basis of common law immunity, we reverse. The record demonstrates that there is a genuine issue of material fact on whether property was willfully and maliciously confiscated.


Department of Natural Resources conservation officer Martin Book confiscated a deer from Kevin Gustafson, asserting authority under Minn. Stat. § 97A.221, subd. 1 (1996). Book initiated criminal trespass charges against Gustafson and two hunting companions. Both of Gustafson's companions pleaded guilty to misdemeanor trespass counts. The charges against Gustafson were ultimately dismissed for failure to timely prosecute.

Gustafson filed a conciliation court action against Book for the value of the deer, estimated by the state to be $1,000.00. Book asserted statutory and official immunity. The conciliation court concluded that statutory immunity protected Book's actions and dismissed the case. Gustafson appealed, and the case was removed to district court. The state, by order, was joined as a party and moved for summary judgment asserting official and statutory immunity for itself as well as Book. The district court ruled that the doctrine of official immunity barred suit against Book and the state, and Gustafson appeals that decision.


Whether an immunity defense applies is a question of law subject to independent review. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). The burden is on the party asserting immunity to demonstrate that it applies. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

The common law doctrine of official immunity establishes 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 v. County of Rice, 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). Generally, when official immunity protects a public official from suit, the governmental employer is likewise immune. Watson by Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996).

Gustafson concedes that a conservation officer's decision to confiscate a deer is a discretionary act to which official immunity may attach. But he contends that any immunity protection was lost because Book willfully and maliciously violated Gustafson's right to possess a deer which he had legally shot.

When an official willfully exercises discretion in a manner that violates a known right, official immunity does not protect that act. See Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). Whether an act is willful or malicious requires an "objective inquiry into the legal reasonableness of an official's actions." State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). The issue of malice "may raise a fact question for the jury." Elwood, 423 N.W.2d at 679; see also Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990) (whether official acted maliciously or willfully is usually a fact question).

Gustafson argues that Book willfully violated his known rights to possess the deer because Gustafson had permission to hunt on the land where he shot the deer; he told Book prior to Book's confiscation of the deer that the lessee Donald Pearson gave him permission to hunt on the land; that Book made no attempt to verify the information before he confiscated the deer; that Book contacted neither the property owner nor the lessee before initiating trespass charges against Gustafson; and that Book's behavior was part of a continuing pattern of hostility toward Gustafson that had gone on for several years.

Book and the state argue to the contrary. They contend that Book did not violate any known or established rights of Gustafson because Gustafson was charged with trespass; his hunting companions pleaded guilty to trespass; the deer was taken in violation of Minnesota game and fish laws and subject to confiscation; and the trespass charge originated from a citizen's report that Gustafson had illegally trespassed on the posted property.

Our review of the record discloses disputed material facts on the issue of malice or legal reasonableness. We note specifically that the district court order states that Gustafson had permission from the lessee to hunt on the land and that statement is supported by Book's supplemental report; the citizen reporting the trespass was neither the owner nor the lessor but a nephew of the owner and a member of a competing hunting party; Gustafson's affidavit states that he twice told Book that he had the lessee's permission to hunt on the property; Book did not contact the owner or lessee of the property before confiscating the deer or initiating the trespass charges; Gustafson's affidavit states that Book has harassed him over a period of years and specifically told him that he would "get him for something;" and that Gustafson sought a restraining order against Book that was continued for one year on the condition that Book would not enter Gustafson's property except on Gustafson's permission or with a search warrant.

We reject the state's argument that the guilty pleas of Gustafson's hunting companions establish that Book did not violate Gustafson's rights because the deer was subject to confiscation based on the guilty pleas of Gustafson's hunting companions. See Minn. Stat § 97A.221, subd. 1 (permitting conservation officers to confiscate wild animals taken in violation of fish or game laws). The file contains neither the complaint nor specific information on the counts of the complaint, and it is not clear whether the pleas were to statutory trespass, which could arguably authorize confiscation, or a general misdemeanor trespass under the criminal code. On this record the actions of Gustafson's companions and the reasons for their plea are neither established nor dispositive of Gustafson's claim. We conclude that there are material fact issues on whether Book confiscated the deer willfully and maliciously, and thus Book and the state are not entitled to summary judgment on the grounds of official immunity.

The state alternatively argues that Book's conduct is protected by statutory immunity because he was exercising a discretionary function and the state and its employees are not liable for a "loss caused by the performance or failure to perform a discretionary duty, whether or not the discretion is abused." Minn. Stat. § 3.736, subd. 3(b) (1996). Book's decision to confiscate Gustafson's deer does not involve the kind of balancing of financial, political, economic, or social interests that is protected by statutory immunity. See Watson, 553 N.W.2d at 413 (quoting Holmquist v. State, 425 N.W.2d 230, 234 (Minn. 1988)) (defining statutory immunity as applying only to actions that involve balancing of public policy considerations such as "the financial, political, economic, and social effects of a given policy").

Finally, the state argues that Book's decision to confiscate the deer is protected by Minn. Stat. § 3.736, subd. 3(a) (1996). Under that provision the state and its employees are not liable for losses "caused by an act or omission of a state employee exercising due care in the execution of a valid or invalid statute or rule." Id. Facts that are insufficient to establish that Book's actions were legally reasonable and not malicious are likewise insufficient to conclusively establish that Book observed the higher standard of due care. Book and the state are not entitled to summary judgment on this basis.

Reversed and remanded.