A05-1351

Demetrius Gatlin as Trustee

for the Estate of Juwan Gatlin,

Respondent,

vs.

Sergeant Michael Green, individually and in his

official capacity as a Minneapolis Police Officer, et al.,

Appellants.

Filed May 16, 2006

Reversed

Willis, Judge

Hennepin County District Court

File No. WD 01-923

Larry B. Leventhal, David L. Garelick, Larry Leventhal & Associates, Ramsey Hill Professional Center, 319 Ramsey Street, First Floor, Saint Paul, MN 55102-2323 (for respondent)

Jay M. Heffern, Minneapolis City Attorney, James A. Moore, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for appellants)

Considered and decided by Willis, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

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

WILLIS, Judge

Appellants challenge an order denying their motion for summary judgment based on their claims of official immunity and vicarious official immunity. Because appellant police officer’s conduct was not malicious or willful as a matter of law and because there is no genuine issue of material fact, we reverse.

FACTS

The relevant facts are undisputed. This case arises from events that occurred after the May 1997 murder of Anthony Dawson, a member of the Disciples street gang. Appellant Minneapolis Police Sergeant Michael Green and his partner, Sergeant Michael Carlson, investigated Dawson’s murder. Their investigation led to the arrest of two men. Subsequently, Juwan Gatlin (Gatlin), a Mickey Cobra gang member who was in the Hennepin County jail on an aggravated-robbery charge, called Sergeant Carlson and told him that he had information about Dawson’s murder. In June 1997, Sergeants Green and Carlson recorded an interview with Gatlin, who told them that Arthur Hurd and Mitchell Douglas, two fellow Mickey Cobra gang members, had murdered Dawson and that the two men arrested for the murder were innocent. Because of this and other information provided by Gatlin, Douglas and Hurd were eventually arrested and charged with Dawson’s murder; Gatlin negotiated a plea agreement on his aggravated-robbery charge, for which he received a probationary sentence.

During their recorded interview with Gatlin, Sergeants Green and Carlson made no offer to protect or to relocate Gatlin, but Gatlin apparently was aware that he might become a target after providing information to the police when he stated, “I’m not scared to talk, cause after this I’m gonna have to be gone, regardless if I get some help or not, I’m still gonna be gone.” Evan Rosen, a public defender who represented Gatlin for a brief time on Gatlin’s aggravated-robbery charge, states in an affidavit that Gatlin told him that Gatlin “had expressed his concerns to the Police that the statement not get out on the street” and that “he was assured that the statement that he gave would not be available to anyone outside the Police Department or the County Attorney’s office, except in connection with a trial should his testimony be required.”

Sergeants Green and Carlson were subsequently assigned new partners. Sergeant Carlson and his new partner, Sergeant Mark Lenzen, became responsible for the Dawson case.

In March 1998, Gatlin testified before a grand jury. In April 1998, Larry McGlennen, the assistant county attorney assigned to the Dawson case, released Gatlin’s recorded interview with Sergeants Green and Carlson to Hurd’s attorney. In June 1998, a deputy at the Carver County jail was reviewing outgoing inmate mail when he intercepted an envelope deposited in the mail by Hurd, who was incarcerated at the jail, in which Hurd forwarded to the addressee a transcript of Gatlin’s recorded interview, with a note that said something to the effect of: “Check this out. Something has to be done about this.” The deputy gave the envelope and its contents to Sergeant Reed Ashpole, who believed that the envelope’s contents “might lead to gang retribution.” That same day, Sergeant Ashpole called Sergeant Green, informed him of the mailing, its contents, and his concerns, and asked him if he wanted Sergeant Ashpole to subpoena the mailing. Sergeant Green told Sergeant Ashpole that he would seek advice and get back to him. Two days later, Sergeant Ashpole called Sergeant Green again regarding the mailing, and, according to Sergeant Ashpole, Sergeant Green advised him that “it wasn’t something that they wanted and it could be placed in the mail.”

Sergeant Green stated in his deposition that between these two calls he talked to assistant county attorney McGlennen who told him, “I’ll get back to you.” But McGlennen states in an affidavit that he received a voicemail message from Sergeant Green regarding the mailing and that by the time he had called Sergeant Green back, the mailing had already been released. There is no evidence in the record that prior to the release of the mailing, Sergeant Green made any attempt to contact Sergeants Carlson and Lenzen, who he knew were in charge of the Dawson murder investigation. Sergeant Green made no attempt to warn Gatlin until approximately two weeks after he declined to stop the release of the mailing. At his deposition, Sergeant Green admitted to recognizing the release of Gatlin’s recorded interview with the police “as being a potential threat to [Gatlin] and his safety.”

Sergeant Carlson first learned of the mailing, possibly through Sergeant Green, sometime after it had already been sent and immediately tried to contact Gatlin to warn him. Gatlin learned of the mailing, and personnel of the Hennepin County Victim Witness Assistance Program provided Gatlin with money and other assistance to facilitate his relocation to Arkansas and believed that Gatlin left Minnesota on July 14, 1998. But on August 7, 1998, Gatlin was found dead, with multiple gun-shot wounds, in a Minneapolis alley. Eventually, two members of the Mickey Cobra gang were convicted of Gatlin’s murder. Another member of the Mickey Cobra gang later stated that on the day of Gatlin’s murder, one of Gatlin’s murderers gave her a transcript of Gatlin’s interview with the police.

Respondent Demetrius Gatlin, Gatlin’s widow and trustee of his estate, sued Green and the City of Minneapolis, alleging that they were responsible for Gatlin’s death and making a total of 13 claims under federal and Minnesota law. Appellants removed the case to the federal district court, which granted appellants summary judgment on all of the federal claims and remanded respondent’s state-law claims to the state court. Gatlin v. Green, 227 F. Supp. 2d 1064, 1079-80 (D. Minn. 2002), aff’d, 362 F.3d 1089 (8th Cir. 2004).

Appellants moved for summary judgment on the remaining claims, which the state district court granted in part, but denied as to respondent’s claims of negligence, breach of contract, and wrongful death under Minn. Stat. § 573.02 (2000). The district court denied appellants official immunity and vicarious official immunity on respondent’s negligence claims, concluding that “Sergeant Green’s actions were discretionary in nature and thus subject to official immunity” but that “there are material facts at issue whether [Sergeant Green’s] acts were either malicious or willful in nature that a finder of fact must decide.” Appellants challenge the district court’s denial of their claims of official immunity and vicarious official immunity.

D E C I S I O N

A party may appeal immediately from an order that denies the party official immunity. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004). In reviewing a summary-judgment ruling that denies official immunity, this court makes two determinations: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. Thompson v. City of Minneapolis, 707 N.W.2d 669, 673 (Minn. 2006). The application of official immunity is a question of law, which this court reviews de novo. Id.

The question of whether official immunity exists may be appropriately resolved on summary judgment. See Elwood v. Rice County, 423 N.W.2d 671, 679 (Minn. 1988). “[A]llegations in a complaint may provide the basis for denying an immunity defense.” Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 318 (Minn. App. 1997) (citing Baker v. Chaplin, 517 N.W.2d 911, 916-17 n.8 (Minn. 1994) (other citation omitted)), aff’d in part and remanded, 582 N.W.2d 216, 221 (Minn. 1998). A party asserting an immunity defense bears the burden of demonstrating that he is entitled to immunity. Id. at 314 (citing Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997)). When a party alleges that an official is not entitled to official immunity because the official acted maliciously or willfully, this court “must determine whether a genuine issue of material fact exists as to whether [the official’s] actions could constitute a willful or malicious wrong.” Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991).

Appellants argue that Sergeant Green is entitled to official immunity on respondent’s negligence claim. Official immunity is a common-law doctrine that provides 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, 423 N.W.2dat 677(quoting Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976)). The doctrine’s purpose is to protect public officials “from the fear of personal liability that might deter independent action and impair effective performance of their duties.” Id. at 678. Official immunity applies when the conduct in question (1) was discretionary and not ministerial and (2) was not malicious or willful. See Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn. App. 1997), review denied (Minn. May 20, 1997). In analyzing an immunity issue, the first step is to identify the specific government conduct at issue. Mumm v. Mornson, 708 N.W.2d 475, 490 (Minn. 2006). Here, the government conduct complained of is Sergeant Green’s decision to not stop the release of Hurd’s mailed envelope that contained Gatlin’s police-interview transcript and Hurd’s note.

The supreme court describes a “ministerial duty” as “absolute, certain, and imperative, involving merely the execution of a specific duty arising from fixed and designated facts”; whereas a discretionary act is one with regard to which an official must exercise “judgment or discretion.” Johnson v. State, 553 N.W.2d 40, 46 (Minn. 1996) (quotations omitted). Generally, a police officer’s execution of his duties is characterized as discretionary and merits immunity, but such a determination depends nevertheless on the facts of each case. Elwood, 423 N.W.2d at 678. Respondent does not identify a specific statute or Minneapolis police-department policy regarding inmate mail or informants’ rights, and we find none. Without such a statute or policy Sergeant Green’s decision regarding whether to stop the release of an inmate’s outgoing mail required Sergeant Green to use his own judgment and discretion and therefore qualifies as a discretionary act that may be covered by official immunity if not done maliciously or willfully.

The supreme court defines “malice” as “the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Rico, 472 N.W.2d at 107 (concluding that “willful” and “malicious” are synonymous in the official-immunity context) (quotation omitted). In the context of official immunity, “malice” does not require a showing of “ill will” or “improper motive,” but if a party alleges that an official has acted with such “‘actual malice’ . . . in carrying out his or her duties, that allegation may support the court’s determination that the official’s conduct was not legally reasonable.” Gleason, 563 N.W.2d at 317, 318 n.3. This court, acknowledging that the malice exception is one of the “least easily understood aspects of immunities law,” has concluded that an official defeats a claim that he acted with malice if the official can show that his conduct meets any one of the following three tests:

(1) that the conduct was ‘objectively’ legally reasonable, that is, legally justified under the circumstances; (2) that the conduct was ‘subjectively’ 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.

Id. at 317-18. Liability does not arise “merely because an official intentionally commits an act that a court or a jury subsequently determines is a wrong.” Rico, 472 N.W.2d at 107.

Here, appellants argue that, as a matter of law, Sergeant Green’s conduct could not be considered malicious or willful because it “did not violate any established right” of Gatlin’s. This is the third of the above tests, which, if satisfied, defeats a malice claim. Respondent does not identify any established rights of Gatlin’s that Sergeant Green violated. To show that an official’s conduct has violated an established right, a plaintiff must show that the conduct violated a “clearly established law.” See Reuter v. City of New Hope, 449 N.W.2d 745, 750 (Minn. App. 1990) (clarifying what “established right” means in the qualified-immunity context), review denied (Minn. Feb. 28, 1990); see also Rico, 472 N.W.2d at 107 (concluding that the malice exception “anticipates liability only when an official intentionally commits an act that he or she then has reason to believe is prohibited”). The fact that a jury could conclude that Sergeant Green made the wrong decision by failing to stop the release of the mailing does not trigger liability if his conduct did not violate any of Gatlin’s established rights. Because the evidence, viewed in a light most favorable to respondent, does not show that Sergeant Green’s decision to not stop the release of Hurd’s mailing of Gatlin’s police-interview transcript violated any of Gatlin’s established rights, we conclude that, as a matter of law, Sergeant Green’s conduct was neither malicious nor willful.

Respondent argues that Sergeant Green owed a special duty of care to Gatlin based on the promise made by Sergeant Green and the city of Minneapolis “to provide protection and relocation assistance” to Gatlin and that the violation of this duty of care is a violation of an established right in the official-immunity context. Respondent cites no authority in support of this argument, and we conclude that it is without merit.

Respondent also argues that Sergeant Green acted “in bad faith” when he authorized the mailing despite knowing that “there was a strong likelihood of a hit on Gatlin” and that Sergeant Green’s “act of overriding all concern expressed in this situation is most certainly willful and malicious.” Respondent, however, falls short of alleging that Sergeant Green acted out of actual malice or ill will toward Gatlin and intentionally failed to stop the release of the mailing for the purpose of having Gatlin killed. Respondent’s bad-faith argument implicates the second of the three tests described above for defeating a malice claim. But appellants only need to prevail on one of the three tests to defeat respondent’s malice claim; therefore, we do not need to analyze whether Sergeant Green acted in bad faith when the record shows that his actions, nevertheless, did not violate an established right of Gatlin’s and that he did not act out of actual malice.

We therefore conclude that Sergeant Green is entitled to official immunity and that the district court erred by denying appellants summary judgment on respondent’s negligence claim.

II.

A government employer may be entitled to vicarious official immunity from claims based on actions of an employee who is protected by the official-immunity doctrine. See, e.g., Pletan v. Gaines, 494 N.W.2d 38, 42-43 (Minn. 1992) (holding that in the context of high-speed police pursuits, the officer’s official immunity extends to the officer’s public employer). The parties agree that the determination of whether the city of Minneapolis enjoys vicarious official immunity from respondent’s negligence claims relies entirely on whether Sergeant Green enjoys official immunity for his actions. Because Sergeant Green is entitled to official immunity, we conclude that the city of Minneapolis is, in turn, entitled to vicarious official immunity.

Reversed.