This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Harry Lazover,


David R. Clifford, et al.,

Filed February 2, 1999
Reversed and remanded
Halbrooks, Judge

Hennepin County Trial Court
File No. 97983

Russell Morgan Spence, Jr., 1616 Park Avenue, Minneapolis, MN 55404 (attorney for appellant)

Richard S. Reeves, 300 Metropolitan Centre, 333 South 7th Street, Minneapolis, MN 55402 (attorney for respondents David Clifford and City of Minneapolis)

Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Holtan, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Because the trial court erred by ruling qualified immunity protected the police officer's conduct from appellant's section 1983 claims based on the stop, frisk, and arrest, and because the trial court's jury instructions were prejudicial error, we reverse the judgment and remand for new trial.


On April 23, 1995, consistent with his routine for the prior seven years, appellant Harry Lazover left his apartment in south Minneapolis at 4:00 a.m. to catch the 4:45 a.m. bus to go to work at his job cleaning patient rooms at Hennepin County Medical Center. Appellant is described by himself and others as "socially slow" or "learning disabled." He, however, lives alone and supports himself.

Appellant was on the sidewalk near his apartment building when a police car approached. Respondent, police officer David R. Clifford, thought seeing someone alone at that time of the morning in that part of town was suspicious. Officer Clifford knew the area had a high incidence of car break-ins and prowlers. Much of what happened after the officer encountered appellant is disputed.

According to the appellant, the officer rolled down his squad-car window and asked appellant where he was going. Appellant responded that he was going to catch the bus to go to work and pointed to the HCMC identification badge clipped to his shirt. The officer then asked when the bus was coming; when appellant answered 4:45, the officer asked what appellant was going to do until the bus came. Appellant's answer that he would walk and wait seemed tense, rehearsed, and suspicious to the officer. According to appellant, the officer then got out of his car and approached appellant and ripped a work identification badge from appellant's pocket. The officer asked for more identification. Appellant produced his state identification card, which listed his address as 3401 Dupont, the building adjacent to that area of the sidewalk. The officer testified he asked appellant to step over and place his hands on the squad car, which appellant did voluntarily. According to the officer, he had not completed his pat search of appellant, nor seen appellant's Minnesota identification card, when appellant broke away and started resisting.

Appellant has a routine of carrying his two house keys inside a sock in his pocket and carrying considerable cash until he can deposit it in the bank. On this occasion, appellant had $5,500 in a pocket. According to appellant, the officer removed the sock containing the keys from appellant's pocket; the officer also removed pay stubs from another pocket. Because appellant began to worry that the officer would remove his money, he tried to get away from the officer. According to appellant, the officer screamed profanity at him and slammed him against the car. Appellant claimed he was scared and again tried to get away from the officer and they began to struggle.

What happened during the struggle is disputed. Appellant testified that he crouched down and the officer then pushed him face down on the ground. The officer appeared to leave briefly; when he came back, appellant felt something hard against his head that he thought might be a gun. Appellant felt three sharp blows to his head. After the last blow, the officer came around in front of appellant and sprayed him in the face with mace.

The officer testified that appellant tried to hit him in the head with his elbow as he rose from having his hands on the squad-car roof. The officer attempted to control appellant by grabbing him, but when he was unable to accomplish this after about a minute's struggle, he used his flashlight. The officer testified that he intended to hit appellant around the shoulders and did not remember hitting appellant on the head.

After the officer struck and handcuffed appellant, the officer took him to the emergency room at Hennepin County Medical Center, appellant's place of employment. The officer tab charged appellant with fifth degree assault and left. The charges were later dropped.

Several staff at the hospital recognized appellant and were surprised to see him. Appellant was bruised and covered with blood and had a significant wound to the back of his head. Appellant was given medical treatment and sent home for the day. Ultimately, appellant recovered from his injuries.

Appellant brought this action in trial court seeking damages under 42 U.S.C. § 1983 and various state claims. After a motion for summary judgment, the trial court dismissed appellant's section 1983 claim based on an unlawful arrest and all his state claims except assault and battery. A jury trial was held on the remaining section 1983 claim based on excessive force and the assault and battery claims.

After the close of appellant's evidence, the trial court directed a verdict for respondent on the assault claim. Appellant agreed to dismiss his battery claim and, as a result, only the excessive force claim was submitted to the jury. The jury returned a general verdict answering that the officer did not use excessive force. The trial court denied appellant's post-trial motion for a new trial or judgment notwithstanding the verdict (JNOV).

Appellant challenges (1) the trial court's partial summary judgment dismissing appellant's claims based on an unlawful stop, frisk, and arrest; (2) the trial court's order denying appellant's motion for a new trial or JNOV; and (3) the court's order directing a verdict of dismissal of appellant's assault claim.


1. When reviewing a grant of summary judgment, we determine: (1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). Evidence must be viewed in the light most favorable to the party against whom judgment was granted. Id. The jury's general verdict on the unreasonable force claim does not affect the standard of review of the facts unrelated to that claim. See McCardle v. Haddad, 131 F.3d 43, 47 (2d Cir. 1997) (jury's general verdict rejecting claim of unlawful stop did not conclusively resolve any fact issues not required by that claim). This is especially true when the jury was specifically instructed by the trial court that it could not consider the lawfulness of the stop, frisk or arrest in the trial on the issue of excessive force.

In order to establish his claim under 42 U.S.C. § 1983 (1994), appellant must establish that the officer, acting under color of state law, violated his rights under the federal constitution. Johnson v. Morris, 453 N.W.2d 31, 34-35 (Minn. 1990). Appellant claims that the officer violated his Fourth Amendment right to be free from unreasonable searches and seizures. The trial court ruled that the officer's arrest of appellant was protected by qualified immunity.

The application of qualified immunity is a question of law reviewed de novo by an appellate court. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). Qualified immunity shields government officials from civil damages unless their conduct violates clearly established constitutional rights. Id. Clearly established means the "unlawfulness must have been `apparent' in light of pre-existing law." Baker v. Chaplin, 517 N.W.2d 911, 914 (Minn. 1994), cert. denied, 513 U.S. 1077 (1995). The officer's conduct is protected if, when viewing the facts in favor of appellant, "a reasonable officer could have believed [his actions] to be lawful in light of clearly established law and the information [the officer] possessed." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040 (1987). If there is a genuine issue of predicate facts necessary to decide qualified immunity, summary judgment is improper. Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994).[1]

The trial court granted partial summary judgment, ruling that "[e]ven if the struggle was precipitated by an illegal stop and frisk, as [appellant] contends, this does not invalidate the arrest." The trial court relied on a criminal case, State v. Wick, 331 N.W.2d 769 (Minn. 1983), to support its conclusion that the legality of the police conduct preceding the arrest was irrelevant. See id. at 771 ("Minnesota law does not recognize defendant's asserted right to resist an unlawful arrest or search."). However, the trial court was not deciding a criminal charge of resisting arrest and its reliance on Wick to support qualified immunity is misplaced.

Even if appellant's resistance ultimately provided probable cause for the assault charge, the trial court erred by failing to analyze the degree of suspicion required under the Fourth Amendment for the initial stop and the subsequent search. See Baker, 517 N.W.2d at 914 (when deciding if qualified immunity applies, court must first analyze constitutional claim and then determine if officer's conduct when viewed in favor of claimant violated clearly established law). Because immunity is a question of law, we now decide these issues.


"[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot," the officer may briefly stop the suspicious person and make "reasonable inquiries" aimed at confirming or dispelling his suspicions.

Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 2135 (1993) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)). While an officer's act of merely approaching a person on a public street and asking questions is not automatically a seizure under the Fourth Amendment, a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting Terry, 392 U.S. at 19 n.16, 88 S. Ct. at 1879 n.16). The question of when a stop is a seizure is a fact question; under the totality of the circumstances, would an objectively reasonable person believe he or she is "neither free to disregard the officer's questions nor free to terminate the encounter" when an officer approaches. State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995). This question was not decided by either the trial court or jury and viewing the evidence in favor of appellant, appellant could have believed he was not free to disregard the officer's inquiry and that the officer's questioning of appellant was a seizure.

An investigatory stop must be based on a "reasonable suspicion of criminal activity"; it may not be based on "mere whim, caprice or idle curiosity." State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996) (quoting Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880). In arriving at a "reasonable suspicion of criminal activity," an officer may make inferences and deductions that might elude an untrained person. Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987).

The existing law in this area is clear. We, therefore, focus on whether a reasonable officer possessing the information relied on by Officer Clifford could have believed his actions were lawful. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3040 (1987). Appellant argues that the stop was unconstitutional because it was based only on his presence in a high-crime area. See Brown v. Texas, 443 U.S. 47, 52, 99 S. Ct. 2637, 2641 (1979); see also State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992) (acknowledging that merely being in a high-crime area will not justify stop), aff'd, Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130 (1993). Accord State v. Hardy, 577 N.W.2d 212, 216 (Minn. 1998) ("In establishing probable cause to believe that a suspect is in possession of drugs, this court has required more than location in a high crime neighborhood and the presence of an unidentified item on the suspect's person.")

Officer Clifford stated that his decision to investigate was also based on appellant's suspicious behavior, his tone of voice, demeanor and response that he was waiting for the bus. Considering the facts articulated by Officer Clifford, a reasonable officer could have believed that an investigatory stop was lawful. See State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998) (apparently innocent behavior, including agitated and unusual behavior, can support officer's reasonable suspicion of criminal conduct). Accordingly, the officer's initial investigative stop was protected by qualified immunity. See Anderson v. Creighton, 483 U.S. at 641, 107 S. Ct. at 3040.


"When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may "conduct a patdown search to determine whether the person is in fact carrying a weapon."

Minnesota v. Dickerson, 508 U.S. at 373, 113 S. Ct. at 2136 (quoting Terry, 392 U.S. at 24, 88 S. Ct. at 1881). The purpose of a patdown search is strictly "limited to that which is necessary for the discovery of weapons." Id. (quoting Terry, 392 U.S. at 26, 88 S. Ct. at 1882).

Conversely, if an officer has no reason to suspect the detainee is armed and dangerous, the officer has no reason to conduct a frisk. See generally, 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.5(a) (3d ed. 1996). "If by investigation or happenstance the quantum of evidence needed to justify a forcible stop has dissipated during [the interval between the stop and the search], then it is not permissible to frisk." Id. at 250 (citing United States v. Thomas, 863 F.2d 622, 629 (9th Cir. 1988) (frisk unlawful once it was apparent that person was no longer suspect in criminal activity)).

Although the officer's initial inquiry may have been reasonable, his conduct after removing appellant's work identification badge and obtaining appellant's state identification card was not. Viewing the facts in favor of appellant, appellant's identification verified his explanation for his presence on the street and there was no longer evidence to support a reasonable suspicion of criminal activity. See Minnesota v. Dickerson, 508 U.S. at 373, 113 S. Ct. at 2135 (officer's conduct must be "aimed at confirming or dispelling" suspicion of criminal activity). The questions of whether the officer removed appellant's identification badge and whether the officer continued to have a reasonable suspicion of criminal activity are jury questions. Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 473 (7th Cir. 1997) ("reasonable suspicion of criminal activity" to stop, like the question of probable cause to arrest is fact issue for jury unless "there is no room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them").

Further, viewing the facts in favor of appellant, there is no objective basis to justify a suspicion that appellant was armed and dangerous. See Minnesota v. Dickerson, 508 U.S. at 373, 113 S. Ct. at 2136 (search must be based on suspicion that individual officer is investigating is armed and dangerous). The officer's decision to search was not protected by qualified immunity and appellant was entitled to have a jury decide if the officer's search violated his Fourth Amendment rights.

Even if the search was justified, it should have been limited to a pat down of appellant's outer clothing for the purpose of discovering a weapon. See id. at 376, 113 S. Ct. at 2137 (officer must have probable cause to believe object is weapon or contraband before seizing it). If appellant can prove that Officer Clifford reached into his pockets and emptied the contents, that conduct is not entitled to qualified immunity. These predicate fact issues preclude application of qualified immunity on summary judgment. See Greiner, 27 F.3d at 1352. Further, if proven, these facts raise an additional question of whether it was reasonable for the officer to continue to search after he found a sock with two keys and a pocket full of pay stubs. See Thomas, 863 F.2d at 629 (frisk unlawful once it becomes apparent that person was no longer suspect in criminal activity).

2. A trial court's denial of a new trial motion is reviewed under an abuse of discretion standard. Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). But errors of law are reviewed de novo. Id. Jury instructions that reflect errors of law require a new trial if they result in substantial prejudice. Pine Valley Meats, Inc. v. Canal Capital Corp., 566 N.W.2d 357, 362-63 (Minn. App. 1997), review denied (Minn. Sept. 18, 1997). An erroneous jury instruction is prejudicial if the outcome would likely have been different with a proper instruction. Lewis v. Equitable Life Assur. Soc., 389 N.W.2d 876, 885 (Minn. 1986).

The trial court gave the following instructions:

(D.B. 103.08M) (In this instruction the word "arrest" applies equally to restraining a person who is non-compliant with an officer's performance of a pat frisk or with an officer's attempt to detain a person prior to deciding whether to arrest). * * * In making a lawful arrest an officer has the right to use such force as is necessary under the circumstances to effect the arrest. Whether or not the force used in making an arrest was unreasonable is a question to be determined by you in light of all of the surrounding circumstances.[2]

No. 1000. It is unnecessary to decide whether Officer Clifford's decision to detain and pat frisk, and later to arrest, Harry Lazover was legal. A person does not have a right to resist even an unlawful detention, pat frisk or arrest. Thus, while a person would have a right to resist an officer in order to defend himself against unjustified bodily attack, assaultive conduct is not justifiable solely on the ground that the officers are violating the person's constitutional rights or on the ground that the person believes that the officers are violating his rights. The legality of an arrest is to be decided in a courtroom, not on the street.

The trial court's instructions erroneously limited the circumstances that the jury could consider when deciding the excessive force claim.

The test of reasonableness [of the use of force] under the Fourth Amendment is not capable of precise definition * * *[;] however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Dixon v. Richer, 922 F.2d 1456, 1462 (10th Cir. 1991) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1872 (1989)) (cited in Gasparre v. City of St. Paul, 501 N.W.2d 683, 686 (Minn. App. 1993).

The court's instruction 1000, instructing the jury that appellant's resistance justified the use of force, was an error of law. See Gasparre, 501 N.W.2d at 687 (a suspect's resistance to force does not necessarily justify its use). The circumstances of a suspect's resistance are relevant in an excessive force claim. Id. While resistance to a stop and frisk might support charges for resisting arrest, that resistance does not automatically make the use of force to carry out the frisk reasonable. Dixon, 992 F.2d at 1463. While it may be reasonable to frisk someone suspected of carrying a weapon, it may not be "reasonable to hit him * * * with a flashlight * * * solely on the basis of that suspicion." Id.; see also Ludwig, 54 F.3d at 473 (reversing summary judgment based on qualified immunity when officers used deadly force).

When, as here, the person seized is not a "suspect," has committed no crime when the police approach, and is provoked by police escalation of the situation, the "importance of the governmental interests alleged to justify the [force]" is necessarily diminished.


The trial court's parenthetical portion of instruction 103.08, confused the issue of the legality of the stop, frisk, and arrest with the circumstances surrounding the use of force. Even if the jury ultimately decided that the officer's continued investigation and search were constitutional and did not form the basis of liability, the jury was still required to consider the conduct of the stop, search, and arrest as part of the surrounding circumstances leading up to the use of force. See Ludwig, 54 F.3d at 473 (jury question of reasonable use of force includes police escalation of situation); Dixon, 992 F.2d at 1462 (including severity of crime and danger posed by suspect). The trial court's instructions erroneously excluded from the jury's consideration circumstances that were legally relevant to their determination of the excessive force question. The erroneous instructions were outcome-determinative and require a new trial on the question of excessive force. See Lewis, 389 N.W.2d at 885 (instructions prejudicial if they likely affected outcome). Appellant's retroactive justification instruction based on Gasparre and Dixon is unnecessary if the jury is properly allowed to consider all the circumstances surrounding the officer's use of force.

Deadly force instruction

The trial court ruled that any error in its failure to give appellant's deadly force instruction was not prejudicial because its reasonable force instruction encompassed the same theory. The court's reasoning is erroneous because the use of deadly force is constitutional only in limited circumstances. See Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 1701 (1985) (holding Tennessee statute that authorized use of deadly force to prevent the escape of felony suspects unconstitutional if applied without limitation); Baker, 517 N.W.2d at 915; see also Minn. Stat. § 609.066 (1996). Deadly force is

force which the peace officer uses with the purpose of causing, or which the officer should reasonably know creates a substantial risk of causing, death or great bodily harm.

4 Minnesota Practice, CIVJIG 531 (1986). Deadly force is constitutionally reasonable

[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.

Garner, 471 U.S. at 11, 105 S. Ct. at 1701.

Appellant presented evidence to support his claim that the officer's use of force was deadly force. The officer testified that he did not intend to strike appellant in the head with his flashlight, but that he could have done so when he was aiming for the shoulder area. The officer further conceded that striking someone in the head with a flashlight could be considered deadly force.

Dr. Heegaard, the examining physician in the emergency room, testified that appellant was examined to determine if he had a skull fracture and if his injuries were life-threatening, and that, in his opinion, appellant's injuries were likely caused by two blows with the flashlight to the head. Based on this evidence, appellant was entitled to have the jury determine if the officer used deadly force. See Baker, 517 N.W.2d at 916-17 (evidence that officer struck protester in chest area with riot baton created jury question of deadly force in section 1983 claim).

If the jury found that Officer Clifford used deadly force, it was required to judge the officer's conduct against the standard for its use: (1) to protect an officer from death or great bodily harm; or (2) to prevent the escape of someone the officer reasonably believes committed a felony involving the threat of deadly force; or (3) to prevent the escape of someone the officer reasonably believes will cause death or great bodily harm if apprehension is delayed. See Minn. Stat. § 609.066. We reject respondent's argument that failure to give a deadly-force jury instruction was not prejudicial because the jury could have relied on appellant's argument and Exhibit 8, the Minneapolis Police Department's Manual on the Use of Force, which contained the same limitations required by Garner and found in Minn. Stat. § 609.066. The jury was instructed to apply the law only as given by the trial court. Without a deadly force instruction, the jury could wrongly conclude that deadly force applied in violation of the manual was nevertheless reasonable under the circumstances. The jury should decide the deadly force question. See Baker, 517 N.W.2d at 916-17 (evidence that officer struck protester in chest area with riot baton created jury question of deadly force in section 1983 claim).

Appellant also claims the officer's misconduct in front of the jury requires reversal. A juror overheard a confrontation between the officer and a potential witness in the hall by the elevator outside of the courtroom.[3] The officer and his counsel immediately brought the episode to the trial court's attention. With both parties present, the court instructed the juror to disregard anything she heard and questioned her on her ability to make an unbiased decision. The juror responded that she could still decide the case fairly. The court indicated its willingness to grant a mistrial if either party requested one. Appellant did not request a mistrial or any other relief.

While we do not condone the actions of the officer or the potential witness, the officer did immediately inform the trial court of the incident and his conduct was not determinative when appellant subsequently waived any right he had to a mistrial. See Ruzic v. City of Eden Prairie, 479 N.W.2d 417, 420 (Minn. App. 1991) (party may waive even constitutional rights).

Appellant also claims reversible error based on the trial court's show of partiality. However, appellant provides no support requiring a new trial based on the conduct he alleges displayed partiality.

Finally, appellant claims he was entitled to JNOV because the jury's verdict was contrary to law. Because the jury was not allowed to consider all the circumstances surrounding the officer's use of force, and because it was not instructed on the use of deadly force, its verdict must be reversed and a new trial ordered.

3. We review the trial court's directed verdict de novo. After viewing all inferences and issues of credibility in favor of the adverse party, a trial court should direct a verdict if the evidence is overwhelmingly predominant in favor of the moving party. Plutshack v. University of Minnesota Hosps., 316 N.W.2d 1, 5 (Minn. 1982).

An assault is a wrongful threat, more than words alone, with the present ability to carry such threat into effect and which causes a reasonable apprehension of immediate harm or offensive contact.

4 Minnesota Practice, CIVJIG 500 (1986). Appellant testified that he felt something pressed against his head before he was hit with the flashlight and thought it was a gun. Presuming the jury believed this testimony, it could support an inference that the officer's act caused a reasonable apprehension of immediate harm.

We reject respondent's argument that we can affirm the directed verdict because the jury's general verdict in favor of the officer established that the jury did not credit appellant's testimony. In directing a verdict, the court must presume that the jury believed appellant. Plutshack, 316 N.W.2d at 5. Drawing all inferences in favor of the claim, appellant's testimony that he thought a gun was being held to his head supports an inference that he was afraid of imminent harm. The trial court erred by not letting the jury decide the assault question. See id.

Reversed and remanded.

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

[1] Although appellant's complaint alleges a Fourth Amendment violation based only on (1) an arrest without probable cause; and (2) use of excessive force during the arrest, the parties also litigated the issues of an unconstitutional stop and search as part of the summary judgment motion.

[2] The parenthetical was added by the trial court, the remainder came from a pattern federal jury instruction.

[3] The alternate juror also heard the confrontation, but took no part in the jury deliberations.