This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




Alexander Campbell Mellgren,



City of Minneapolis, et al.,


Filed January 12, 1999


Lansing, Judge

Hennepin County District Court

File No. 9714067

Paul F. Leutgeb, 140 West 98th Street, Bloomington, MN 55420 (for respondent)

Jay M. Heffern, Minneapolis City Attorney, Larry L. Warren, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellants)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.[*]



In a case alleging assault and false imprisonment, the City of Minneapolis appeals the denial of its motion for summary judgment based on official immunity. Because the city failed to meet its burden to demonstrate that its officer's discretionary actions were legally reasonable, we affirm.


Alexander Mellgren sued the City of Minneapolis and its police officer, Keith Oldfather, for conduct triggered by a traffic incident. For purposes of the immunity issue, the facts are undisputed. The encounter began at about ten o'clock in the morning as Mellgren drove his car east on Grant Street in Minneapolis. When he came to the intersection of Grant Street and Park Avenue, he saw a car coming the wrong way down Park Avenue Frontage Road. The car was an unmarked, undercover police car driven by a plainclothes police officer, Keith Oldfather. Oldfather was responding to an emergency call.

As Mellgren turned left onto Park, the turning position of his car blocked Oldfather's car for approximately 20 seconds. Mellgren yelled, "One way! One way street! You're going the wrong way!" and gestured at Oldfather. At the same time, Oldfather yelled at Mellgren and banged his fist on the steering wheel.

Instead of continuing west on Grant, Oldfather turned north onto Park and followed Mellgren. Mellgren drove for another block to the office of DieCraft Co., where he was going for business purposes. Frightened by being followed, Mellgren ran into the DieCraft office. Oldfather burst through the door behind him, angry and agitated. According to Mellgren and his witnesses, Oldfather said, "You come outside with me, I want to talk to you." DieCraft's owner told Mellgren to stay inside. At that point Oldfather said he was a police officer and demanded Mellgren come outside. DieCraft's owner asked Oldfather for identification, and Oldfather said, "I've got a gun, I'll show you my gun," and then added, "Well, I can show you my badge." The owner thought Oldfather was "out of control" because he was red in the face and yelling at Mellgren "like he was going to beat him up."

The confrontation ended with the arrival of a uniformed police backup, apparently called by Oldfather to verify his status. Oldfather issued Mellgren a citation for impeding traffic by his turning from Grant onto Park. Mellgren and Oldfather dispute whether Mellgren was under arrest during the citation process.

Mellgren sued Minneapolis and Oldfather for assault, false imprisonment, improper training of police officers, and defamation. Minneapolis and Oldfather moved for summary judgment, and the district court granted the motion except on the claims for assault and false imprisonment. Minneapolis and Oldfather appeal the denial of official immunity on the two claims.


Official immunity protects an official's discretionary decisions made at an operational level. Watson ex rel. Hanson v. Metropolitan Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996). But official immunity does not extend to legally unreasonable actions that come within the "willful or malicious" exception to an official's discretionary immunity. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571-72 (Minn. 1994). The application of immunity is a question of law, which an appellate court reviews de novo. Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998). The party asserting an immunity defense bears the burden of showing it is entitled to the defense. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

The starting point for determining whether actions are entitled to immunity is "identification of `the precise governmental conduct at issue.'" Gleason, 582 N.W.2d at 219 (quoting Watson, 553 N.W.2d at 415). We then apply a two-part inquiry to determine, first, "whether the conduct required the exercise of judgment and discretion and is therefore the type of conduct protected by official immunity"; and second, "whether the alleged acts, even though discretionary, were stripped of the immunity's protection because the official acted without legal reasonableness in violating a known right." Gleason v. Metropolitan Council Transit Operations, 563 N.W.2d 309, 315-16 (Minn. App. 1997) (citation omitted), aff'd in part, 582 N.W.2d 216 (Minn. 1998).

The district court identified the conduct at issue as Oldfather's driving the unmarked car the wrong way down a street, threatening Mellgren rather than providing identification, and confronting Mellgren with a threatening demeanor. We agree with the district court's identification of the conduct at issue and consequently reject Minneapolis and Oldfather's claim that the conduct was Oldfather's response to an emergency, his decision to enforce the traffic laws, his decision to wait for the marked police squad, and his decision to issue a citation. See Gleason, 582 N.W.2d at 219 (allegations did not relate to general policies and guidelines but "specific cluster of words and acts" that allegedly caused injury). It is unnecessary for us to address whether the conduct at issue was discretionary because neither party disputes the discretionary nature of Oldfather's conduct. See Gleason, 582 N.W.2d at 220 (official immunity is regularly applied to police officers exercising discretion in discharge of duties).

The second step in this immunity analysis is an examination of the legal reasonableness of Oldfather's conduct. Immunity protects an official for a discretionary act when the official demonstrates (1) that the conduct was "objectively" legally reasonable; that is, legally justified under the circumstances; (2) that the conduct was "subjectively" legally 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. Gleason, 563 N.W.2d at 318; see Elwood v. Rice County, 423 N.W.2d 671, 679 (Minn. 1988) (official immunity "protects honest law enforcement efforts, and is not intended to shield police brutality"). When a plaintiff has alleged that an official's conduct was legally unreasonable, the government has the burden of showing it was legally reasonable. See Rehn, 557 N.W.2d at 333 (burden is on party asserting immunity).

Oldfather and the City of Minneapolis have not met their burden of demonstrating legal reasonableness under any of the three tests: First, other than explaining that he was responding to an emergency, Oldfather has not provided a legal basis for his actions and demeanor directed at Mellgren. Second, Minneapolis and Oldfather have not presented evidence that Oldfather acted in subjective good faith. The record demonstrates that Oldfather admitted he became "very angry" at Mellgren for blocking his way. In addition, the record shows DieCraft's owner and a DieCraft employee both witnessed Oldfather's extreme demeanor and his yelling at Mellgren. Oldfather and Minneapolis have not pointed to any evidence that would provide a subjective legal basis for his conduct. See Beaulieu, 518 N.W.2d at 573 (questioning officer's subjective intent because evidence indicated officer "acted in bad faith"); Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990) (question of officer's subjective intent in pointing gun at defendant and threatening defendant).

Finally, Mellgren's alleged claims of false imprisonment and assault against Oldfather, if proved, would violate established rights. As a police officer, Oldfather is assumed to be aware of both of these rights. See Rico v. State, 472 N.W.2d 100, 109 (Minn. 1991) (imputing "knowledge of the law to public officials"); Gleason, 563 N.W.2d at 319 ("Our inquiry is whether, assuming the facts as alleged by Gleason, the law is well-enough established that [the defendant] had reason to believe his conduct was prohibited").

Minneapolis and Oldfather have not shown that Oldfather's conduct satisfies any prong of the three-part legal reasonableness test. Because the party asserting immunity has the burden to demonstrate that it is entitled to immunity, we affirm the district court's denial of the motion of Minneapolis and Oldfather for summary judgment based on official immunity.


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