Clayton M. Robinson, Jr., City Attorney, James F.X. Jerskey, Assistant City Attorney, 15 West Kellogg Blvd., St. Paul, MN 55102 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Thoreen, Judge.[*]

Appellants challenge the district court's grant of summary judgment, arguing the district court erred in determining that respondents were entitled to official and qualified immunity. Specifically, appellants contend they raised a question of fact as to whether respondents acted with malice or with a willful disregard of appellants' rights. We affirm.

Official immunity is a common law doctrine that protects governmental officials from suit for discretionary actions taken in the course of their official duties. Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn. 1998). The primary purpose of official immunity is to insure that the threat of suit does not unduly inhibit the exercise of discretion by officials in the discharge of their duties. Holmquist v. State, 425 N.W.2d 230, 233 n.1 (Minn. 1998). The doctrine applies when an official's conduct involves the exercise of judgment or discretion, but not when the action was taken with malice. Kari, 582 N.W.2d at 923. Malice, for official immunity purposes, is "nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right." Rico v. State, 472 N.W.2d 100, 106 (Minn. 1991) (quoting Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 462, 205 N.W. 630, 631 (1925)). Once immunity is raised as a defense, the plaintiff has the burden to articulate with specificity the claim that must be scrutinized to determine the immunity issue and to make some factual showing to suggest the basis for the claim. Gerber, 578 N.W.2d at 403.

Appellants are the residents of a house that was mistakenly searched by the St. Paul police. Appellants contend that the officers who conducted the search acted with malice in conducting the search because: (1) the officers relied on an informant that had smoked crack cocaine earlier in the day; (2) there were discrepancies between the informant's statements regarding the car and house the informant said she had been in and the cars and houses she subsequently identified; (3) the request for the search warrant contained inaccuracies; (4) the layout of the house was not as the informant had described; and (5) upon learning they were in the wrong house, the officers did not immediately leave but instead continued to secure the premises. After examining the record, we conclude appellants have failed to raise a fact issue for a jury regarding malice.

First, the police took steps to verify the informant's allegations, and no reasonable jury could conclude that because the informant used crack cocaine many hours prior to giving the information, the police officers knew they were about to search the wrong house. Second, while the officers could have done a better job constructing the warrant request, we conclude that no reasonable jury could find that the informant's discrepancies and the alleged omissions and inaccuracies in the warrant request demonstrate malice on the part of the officers. Third, when the officers entered the house it was dark and their first concern was for their own safety. Therefore, we cannot conclude the officers were malicious in failing to immediately realize they were in the wrong house. Finally, the officers' legitimate concern for safety justified their actions in securing the premises after they realized they were in the wrong house. We conclude that under these facts, no reasonable jury could find that the officers willfully violated a known right.

In addition to determining the officers were entitled to official immunity, the district court also correctly found that vicarious official immunity applies to the city. See Ireland v. Crow's Nest Yachts, Inc., 552 N.W.2d 269, 272 (Minn. App. 1996) (vicarious immunity applies in situations where, if vicarious immunity were not granted, the purpose of official immunity would be defeated), review denied (Minn. Sept. 20, 1996). Finally, because we conclude that official immunity applies, we need not address the issue of qualified immunity.

Affirmed.

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