This opinion will be unpublished and

may not be cited except as provided by

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




Daniel Marvin Schermerhorn,



Dale Kaiser, et al.,


Filed January 7, 1997


Willis, Judge

Itasca County District Court

File No. C7941739

Rodney G. Otterness, 20 N.E. Fourth Street, Suite 101, Grand Rapids, MN 55744 (for Appellant)

Roger L. Rowlette, Michelle Gill Murray, Johnson & Lindberg, P.A., Suite 1610, 8500 Tower, 8500 Normandale Lake Boulevard, Minneapolis, MN 55437 (for Respondents)

Considered and decided by Parker, Presiding Judge, Peterson, Judge, and Willis, Judge.



Appellant Daniel Schermerhorn challenges the trial court's grant of a directed verdict and denial of his motion for a new trial. Schermerhorn contends the trial court erred by concluding that respondents Dale Kaiser, John Rubesh, Terry Snyder, and Itasca County (the county) are immune from his state tort claims and federal civil rights claims and by finding Minn. Stat. § 253B.05, subd. 2, constitutional as applied. In addition, Schermerhorn claims he is entitled to a new trial based on newly discovered evidence and fraud upon the court. We affirm.


Shortly after 4:00 a.m. on August 27, 1994, Itasca County deputies Kaiser, Rubesh, and Snyder responded to a report from Daniel Schermerhorn's neighbor that the neighbor heard gunshots being fired from the direction of Schermerhorn's residence on the outskirts of Calumet. When the deputies questioned Schermerhorn at his home, he denied having anything to do with the shots that had been fired and refused to allow the deputies to search his residence without a warrant.

Schermerhorn had been drinking beer that night: first at home, then at a local bar, then at a friend's house, and then again at home after he returned at approximately 2:30 a.m. He estimated that he drank a total of 15 to 18 beers. After Schermerhorn came outside to the squad car to talk, the deputies decided to take him to a detoxification facility. While Schermerhorn was in custody, the Sheriff's Department obtained a warrant to search his residence. Among several guns deputies found was a .410 shotgun, which was the same gauge as a shotgun wad found between Schermerhorn's house and a pellet-damaged power pole located directly to the south.

In November 1994, Schermerhorn filed a complaint against respondents, alleging false imprisonment, assault, battery, violation of his Fourth Amendment rights, and unconstitutional application of Minn. Stat. § 253B.05, subd. 2. The trial court granted respondents' motion for a directed verdict based on immunity and denied Schermerhorn's post-trial motion for a new trial. Schermerhorn appeals from the judgment and the order.


I. Directed Verdict.

On appeal from a directed verdict, this court "must independently determine whether an issue of fact exists when the evidence is viewed in [the] light most favorable to the nonmoving party." Baber v. Dill, 531 N.W.2d 493, 495 (Minn. 1995). If fact questions exist, this court must reverse. Id.

A. State Claims.

Schermerhorn argues respondents are not immune from his claims of false imprisonment, assault, and battery because respondents maliciously took him into custody to penalize him for asserting his constitutional rights, including the right not to have his residence searched without a warrant. We disagree. A public official whose duties require the exercise of judgment is entitled to official immunity from state law claims unless the officer committed a willful or malicious wrong. Elwood v. Rice County, 423 N.W.2d 671, 677 (Minn. 1988). Malice involves "'the intentional doing of a wrongful act without legal justification or excuse, or * * * the willful violation of a known right.'" Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citation omitted). A plaintiff may not rely on "bare allegations of malice" to defeat immunity. Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S. Ct. 2727, 2738 (1982).

Schermerhorn contends Kaiser took photographs of the shotgun wad near Schermerhorn's house after the date the deputies testified the photographs were taken, and the deputies' misstatements about the date of the photographs are circumstantial evidence of malice. The existence of malice, however, must be evaluated as of the time the officers acted. Maras v. City of Brainerd, 502 N.W.2d 69, 77 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993). Even if the deputies took the photographs after the date to which they testified, that fact is not relevant to the existence of malice at the time they took Schermerhorn into custody. See Carlson v. County of Hennepin, 428 N.W.2d 453, 458 (Minn. App. 1988) (holding that defendants' later refusal to allow plaintiffs to adopt a different child was irrelevant to the issue of whether the defendants acted with malice at the time the plaintiffs attempted to adopt the child at issue), review denied (Minn. Oct. 10, 1988), cert. denied, 490 U.S. 1023 (1989). Because Schermerhorn offered no other evidence of malice, no reasonable jury could find that the deputies acted maliciously when they took Schermerhorn into custody.

Itasca County, as the deputies' employer, is entitled to vicarious official immunity for the deputies' conduct. Olson v. Ramsey County, 509 N.W.2d 368, 372 (Minn. 1993). Moreover, the county has discretionary immunity for its policymaking decisions. A county is immune from tort liability for "[a]ny claim based upon the performance or the failure to perform a discretionary function or duty, whether or not the discretion is abused." Minn. Stat. § 466.03, subds. 1, 6 (1994). Discretionary immunity protects decisions involving public policy issues, as distinguished from those involving daily governmental operations. Holmquist v. State, 425 N.W.2d 230, 232 (Minn. 1988). The county made no unprotected decisions that subject it to liability for Schermerhorn's detention.

B. Federal Claims.

Schermerhorn contends the trial court erroneously directed a verdict on his claim that respondents maliciously imprisoned him under color of Minn. Stat. § 253B.05, subd. 2 (1994), in violation of his Fourth and Fourteenth Amendment rights. See 42 U.S.C. § 1983 (1994) (providing a civil right of action to an individual whose federal rights were violated by a person acting under color of state law). Officers performing discretionary functions are entitled to immunity from suit only if they did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. Courts should recognize discretionary immunity unless "it is obvious that no reasonably competent police officer would have concluded" that his actions were legal. Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986).

An officer may bring a person to a treatment facility if (a) the officer has reason to believe the person is mentally ill "and in imminent danger of injuring self or others if not immediately restrained" or (b) the person is believed to be intoxicated in public. Minn. Stat. § 253B.05, subd. 2.

"If the person is intoxicated in public * * * and is not in danger of causing self-harm or harm to any person or property, the peace or health officer may transport the person home."

Id. (emphasis added). Schermerhorn concedes that section 253B.05 "clearly allows the police officer significant discretion in determining whether to take a person to detox, or alternatively, home." Moreover, it is undisputed that (1) Schermerhorn was intoxicated when the sheriff's deputies took him into custody, (2) two neighbors reported hearing shots being fired from the direction of Schermerhorn's residence, and (3) in July 1994, one of the deputies had investigated another complaint that Schermerhorn had been shooting guns from his house. The deputies are entitled to discretionary immunity because, under these circumstances, a reasonably competent deputy could have concluded it was lawful to take Schermerhorn to a detoxification facility pursuant to section 253B.05, subd. 2. See Malley, 475 U.S. at 341, 106 S. Ct. at 1096.

Schermerhorn contends the force used in his arrest was unreasonable because he told the deputies he had a shoulder injury, but a deputy nevertheless held his arm behind his back for 10 seconds before cuffing his hands in front. "Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871-72 (1989). Moreover, an officer's actions generated by the circumstances of a confrontation, even if mistaken, "do not violate the Fourth Amendment proscription against unreasonable seizures if they were objectively reasonable at the time they occurred." Johnson v. Morris, 453 N.W.2d 31, 39 (Minn. 1990). Ten seconds was not an unreasonable length of time for the arresting deputy to respond to Schermerhorn's complaint of pain by releasing the arm held behind Schermerhorn's back and cuffing his hands in front of his body.

Schermerhorn's section 1983 claims against Itasca County are barred because he has not asserted that any county policy violated his constitutional rights. A governmental unit can be sued under section 1983 only when execution of its policy inflicts the injury. Monell v. Dep't of Social Serv., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978).

C. Constitutionality of Minn. Stat. § 253.05.

Schermerhorn contends section 253B.05 is unconstitutional as applied to him because it gives police too much discretion. When taken into custody pursuant to section 253B.05, a person may be held without a hearing for up to 72 hours, exclusive of weekends and holidays. Minn. Stat. § 253B.05, subd. 3 (1994). Because Schermerhorn was taken into custody on a Saturday, and no one petitioned for his early release, he remained in the detoxification facility for five days. Schermerhorn argues that the deputies should have been required to obtain approval from a neutral magistrate for a continued hold.

Statutes are presumed to be constitutional. Wegan v. Village of Lexington, 309 N.W.2d 273, 279 (Minn. 1981). Courts should not exercise the power to declare a statute unconstitutional unless absolutely necessary. Medill v. State, 477 N.W.2d 703, 704 (Minn. 1991). The party challenging a statute's constitutionality bears the burden of proving beyond a reasonable doubt that the statute violates some provision of the constitution. Id. Here, the deputies reasonably applied a presumptively valid statute that permits a 72-hour hold without a hearing, based on their reasonable belief that there was imminent danger that Schermerhorn would harm himself or others. Cf. Enberg v. Bonde, 331 N.W.2d 731, 740 (Minn. 1983) (holding that due process does not require a preliminary determination of probable cause within 72 hours of initial confinement as a mentally ill person under section 253B).

II. Motion for New Trial.

Schermerhorn contends the trial court erred by denying his motion for a new trial based on "[m]aterial evidence newly discovered, which with reasonable diligence could not have been found and produced at the trial." Minn. R. Civ. P. 59.01(d). He relies on a forestry expert's affidavit stating that the photographs of the shotgun wad by Schermerhorn's house must have been taken between September 20 and May 12. At trial, however, Schermerhorn did dispute the deputies' testimony that Kaiser took the photographs of the gunshot wad within a few days of taking Schermerhorn to the detoxification facility. "[N]ewly discovered evidence 'which is merely contradictory, impeaching, or cumulative cannot be made the basis' for a new trial except in 'extraordinary' cases." 200 Levee Drive Ass'n v. County of Scott, 532 N.W.2d 574, 578 (Minn. 1995) (citation omitted). Further, "expert testimony does not constitute newly discovered evidence that would justify a new trial." Tuseth v. Thoreson, Inc. 287 N.W.2d 633, 635 (Minn. 1979).

Schermerhorn argues he is entitled to a new trial because the deputies committed fraud upon the court by misstating the date the photographs were taken. Fraud upon the court is connected with a party's presentation of its case to the court as distinguished from fraud under Minn. R. Civ. P. 60.02. Angier v. Angier, 415 N.W.2d 53, 56 (Minn. App. 1987); see also Minn. R. Civ. P. 60.02(c) (authorizing a court to grant a new trial based on adverse party's misconduct, such as fraud).

Fraud upon the court means more [than fraud under Rule 60.02(c)] and requires some egregious conduct involving some integral aspect of the judicial process or a judicial officer. The concept clearly includes bribery of a judge or the employment of counsel in order to bring an improper influence on the court. Cases of perjured evidence probably do not fall within fraud upon the court unless they directly involve an attorney or judicial officer.

2A David F. Herr & Roger Haydock, Minnesota Practice § 60.24 (1985) (citations omitted); see also Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 195 (8th Cir. 1976) (asserting that a finding of fraud upon the court is "justified only by the most egregious misconduct directed to the court itself.").

The deputies' allegedly false statements here did not involve an integral aspect of the process. See Pfizer, 538 F.2d at 195 (concluding that alleged misstatements regarding the disclosure of documents was not characterizable as fraud upon the court). Moreover, the statements do not constitute fraud under rule 60.02(c) because they go to impeachment and not to an ultimate issue of the case. See Regents of Univ. of Minn. v. Medical Inc., 405 N.W.2d 474, 480-81 (Minn. App. 1987) (holding trial court properly denied relief for perjury under the predecessor of rule 60.02(c) which "requires that the misconduct have gone to the ultimate issue of the case"), review denied (Minn. July 15, 1987), cert. denied, 484 U.S. 981 (1987).

The trial court properly denied Schermerhorn's motion for a new trial based on newly discovered evidence or fraud upon the court.