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Mattson v. Becker County: US District Court : 1983 | 6TH AMENDMENT | 4TH AMENDMENT - listening to call to attorney; excessive force, false arrest Questions

1 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
Steven W. Mattson,
Plaintiff, AND ORDER
Civil No. 07-1788 ADM/RLE
Becker County, Minnesota;
Timothy Haverkamp, individually
and in his capacity as Becker
County Deputy Sheriff,
Hannah R. Stein, Esq., Fabyanske, Westra, Hart & Thomson, P.A., Minneapolis, MN, on behalf
of Plaintiff.
Jason M. Hiveley, Esq., Iverson Reuvers, Bloomington, MN, on behalf of Defendants.
On May 7, 2008, the undersigned United States District Judge heard oral argument on
Defendants Becker County (the County) and Becker County Deputy Sheriff Timothy
Haverkamps (Haverkamp) Motion for Summary Judgment [Docket No. 12]. Defendants
Motion is granted in part and denied in part.
Either late in the evening of September 14, 2006, or early in the morning of September
15, 2006, Plaintiff Steven W. Mattson (Mattson) left the home of his friend Michele Dinkel
(Michele) in Lake Park, Minnesota. Mattson Dep. (Stein Aff. [Docket No. 18] Ex. A) at 15.
Mattson was at Micheles home to meet with friends and to deliver a chainsaw for Micheles son
Michael Dinkel (Michael). Id. at 14. Mattson had driven westbound on Highway 9 for about
two blocks when a vehicle with its brights on passed him in the opposite lane. Id. at 12.
Because the vehicle had its brights on, Mattson focused on the fog line (the white line marking
the right shoulder of the road) to avoid drifting into the opposite lane. Id. at 67. Mattson avers
he never crossed into the opposite lane nor did he cross the fog line. Id. at 67-68. After Mattson
passed the vehicle with its brights on, he realized he had forgotten to leave the chainsaw for
Michael. Id. at 12. Mattson then turned on his left-turn signal, turned left towards Micheles
house, drove around the block, and pulled into a driveway adjacent to Micheles lot. Id. at 16-
While Mattson was driving on Highway 9, Haverkamp began following Mattson in his
squad car. Haverkamp Dep. (Stein Aff. Ex. D) at 21-22. Although Haverkamp testified he did
not have his brights on, he agrees that he passed Mattson while driving eastbound on Highway 9.
Id. According to Haverkamp, Mattson swerved and crossed the fog line and then drifted over the
centerline into Haverkamps eastbound lane. Id. at 22-23. Haverkamp followed Mattson for a
short period of time until he was within a block and a half of Mattsons vehicle. Id. at 26.
Haverkamp then radioed dispatch and attempted to activate his lights, sirens, and dashboard
camera. Id.
It is undisputed that the lights and sirens in Haverkamps squad car did not activate.
Haverkamp has offered inconsistent statements regarding whether he knew his lights and sirens
failed to activate. In his police report, Haverkamp stated he was immediately aware his lights
and sirens did not activate because he heard a slight (POP) from the engine compartment,
indicating that a fuse had blown. Haverkamp Report (Stein Aff. Ex. E). However, while
transporting Mattson to the Becker County jail Mattson asked Haverkamp whether his lights and
sirens had been on, to which Haverkamp replied, Yeah. Actually, I did have my lights on.
Transcript of Squad Car Audio (Transcript) (Hiveley Aff. [Docket No. 14] Ex. D) at 24.
Further, Haverkamp testified during his deposition that he was not aware that his lights and
sirens failed to activate despite having had his window open and agreeing he would normally be
able to see his lights and hear his sirens. Haverkamp Dep. at 27-28. Haverkamp never signaled
for Mattson to pull over and Mattson was not aware Haverkamp was pursuing him. Haverkamp
Dep. at 17.
Eventually, Mattson did pull his vehicle into the driveway adjacent to Micheles lot. Id.
at 16. Mattson parked so that his lights would shine on the fire pit where he planned to leave the
chainsaw for Michael. Id. at 20. When Mattson got out of his vehicle, he heard Haverkamps
tires sliding on the gravel and saw Haverkamps headlights coming towards him. Id. at 19-20.
Because the lights of Haverkamps squad car were shining directly at Mattson, Mattson did not
identify the vehicle as a Becker County Sheriffs squad car. Id. at 22. When the squad car came
to a complete stop, Mattson began heading toward Micheles house. Id. at 22-23. As Mattson
proceeded toward the house, Haverkamp yelled Get back. Stop right there or Ill shoot.
Transcript at 2. Haverkamp did not identify himself as a deputy sheriff. Id. Mattson continued
toward the house and Haverkamp pursued him until he came within range to use his taser on
Mattson. Mattson Dep. at 24, 29; Haverkamp Dep. at 52. Havercamp then fired his taser at
Mattsons back and Mattson fell to the ground. Mattson Dep. at 31; Haverkamp Dep. at 52;
Transcript at 2.
Haverkamp instructed Mattson to get onto his stomach and positioned his knee on
Mattsons back in order to restrain him. Mattson Dep. at 31; Haverkamp Dep. at 52; Transcript
at 2. In response to Haverkamps orders and physical restraint, Mattson responded by asking
What and Why as Haverkamp continued to order Mattson to get onto his stomach.
Transcript at 2-3. Haverkamp deployed his taser on Mattson a second time because Mattson
continued trying to turn around to face Haverkamp despite Haverkamps efforts to restrain him.
Haverkamp Dep. at 52; Mattson Dep. at 32. Haverkamp had not yet identified himself and
Mattson was unaware of who had tasered him. Transcript at 2-3.
After the second use of the taser, Haverkamp handcuffed Mattson and began questioning
him about his identity. Mattson Dep. at 34; Haverkamp Dep. at 54. Haverkamp stated Are you
Steve . . . What is your name? Ill dig it out of your billfold. Transcript at 3. While
Haverkamp removed Mattsons wallet from his pocket, Mattson continued to ask what he was
doing and who he was. Id. at 4. Haverkamp replied: Youll know soon enough who I am. Id.
Haverkamp attempted to return Mattsons wallet to his pants pocket but Mattson asked
Haverkamp to instead place the wallet in his hat, which was lying on the ground. Id. Mattson
turned to face Haverkamp to speak to him, which prompted Haverkamp to order Mattson to turn
onto his stomach. Id. Haverkamp and Mattson argued back and forth with Haverkamp ordering
Mattson to get onto his stomach and Mattson telling Haverkamp to put his wallet in his hat until
Haverkamp warned Mattson that if he did not get onto his stomach, Haverkamp was going to
tase him again. Id. at 6-7; Haverkamp Dep. at 58. Haverkamp then deployed his taser on
Mattson a third time. Transcript at 7; Haverkamp Dep. at 58.
Haverkamp asserts he tased Mattson for the third time because Mattson was attempting
to get on his feet and was attempting to kick Haverkamp. Haverkamp Report at 2; Haverkamp
Dep. at 58. Mattson, however, disputes Haverkamps account and instead insists he was not
combative, did not make any threatening moves or gestures, did not flail his legs, and did not
attempt to kick Haverkamp. Mattson Aff. [Docket No. 19] 2. Because Haverkamp was unable
to place Mattsons wallet in his pocket and did not want to put it in Mattsons hat, he ultimately
placed Mattsons wallet in his own pocket. Transcript at 9. Shortly thereafter, Haverkamp
transported Mattson to the Becker County Law Enforcement Center. Haverkamp Report.
Haverkamp retained Mattsons wallet until they entered the booking room, when
Haverkamp provided it for inventory. Haverkamp Dep. at 66-67. Someone at the Sheriffs
department counted the money in Mattsons wallet in front of Haverkamp and Mattson and
determined the wallet contained ,037.16. Transcript at 37. Mattson immediately replied
Whered the other three go?, implying 0 was missing from his wallet. Mattson testified
that he knew 0 was missing from his wallet because he had started the night with fourteen
0 bills and had spent approximately sixty dollars. Mattson Dep. at 40-41. According to
Mattsons calculation, at the time of his arrest he should have had thirteen 0 bills and roughly
an additional forty dollars in his wallet.
After finishing an inventory of Mattsons possessions, a deputy assisting Haverkamp read
Mattson the Minnesota Motor Vehicle Implied Consent Advisory. Transcript at 32. Haverkamp
and the deputy notified Mattson that he was under arrest for driving while intoxicated and
informed Mattson that he could consult with an attorney before undergoing the breathalyzer test.
Id. at 34, 36. Mattson requested to speak with an attorney and was placed in a room with a
2 Although Mattson asserted a claim of false imprisonment in violation of 1983, he did
not address it as a claim under the United States Constitution, but under Minnesota law.
Accordingly, the Court will not address his claim of false imprisonment in its discussion of his
1983 claims.
phone and phonebook so that he could contact one. Id. Mattson eventually received a phone
call from his attorney but was not given a private place to conduct his phone conversation.
Haverkamp Dep. at 64. Haverkamp remained in the room with Mattson while Mattson spoke to
his attorney and could hear Mattsons end of the conversation. Id. at 65. Haverkamp testified
that he typically stays in the room with suspects while they speak with their attorneys because he
has been trained and instructed to keep in constant visual contact with suspects. Id. He further
explained that there is no area in the booking room where a suspect could have a private
conversation with an attorney. Id. Mattsons conversation was also recorded pursuant to the
Countys policy. Id. at 52. Mattson ultimately underwent a breathalyzer test, which indicated
his blood alcohol level was 0.11, above the legal limit. Id. at 38.
In his Complaint [Docket No. 1], Mattson alleges claims against the County and
Haverkamp individually pursuant to 42 U.S.C. 1983. In count one, Mattson alleges that the
County and Haverkamp acted under color of state law to deprive him of his right to be free from
excessive force, his right to freedom from assault and from illegal imprisonment, his right to the
effective assistance of counsel and his right to due process, all in violation of the First, Fourth,
Sixth, and Fourteenth Amendments to the United States Constitution.2 Compl. 34. Mattson
3 Mattson also pled a claim of abuse of process, however, he did not contest Defendants
Motion for Summary Judgment on that claim and conceded at oral argument that he has
abandoned the claim.
also alleges state law claims of false arrest, interference with his right to counsel, infliction of
emotional distress, conversion, and vicarious liability.3 Compl. 37-55.
A. Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the Court views the
evidence in the light most favorable to the nonmoving party. Ludwig, 54 F.3d at 470. The
nonmoving party may not rest on mere allegations or denials, but must demonstrate on the
record the existence of specific facts which create a genuine issue for trial. Krenik v. County of
Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995).
B. 42 U.S.C. 1983 Claims
Mattson alleges Defendants are liable for violating his right to be free from excessive
force, his right to freedom from assault and from illegal imprisonment, his right to the effective
assistance of counsel and his right to due process, [] in violation of the First, Fourth, Sixth, and
Fourteenth Amendments to the United States Constitution. Compl. 34.
1. Claims against the County
a. Attorney-Client Communication
Mattson claims the County violated his Fourth Amendment right to be free from
unreasonable search and seizure by its policy of not providing detainees with a private place to
conduct attorney-client communications. Mattson contends the County is liable under Monell v.
Department of Social Services, 436 U.S. 658, 694 (1978), which establishes the standard for
municipal liability in a 1983 claim.
Under Monell, municipal liability arises when a constitutional injury directly results from
action pursuant to official municipal policy of some nature. Id. at 691. The policy may derive
from an officially adopted and promulgated policy by the governmental governing body or
from a widespread custom or usage within the municipality. Id.; see also Thelma D. ex rel.
Delores A. v. Board of Educ., 934 F.2d 929, 932 (8th Cir. 1991). A governmental custom may
serve as the basis for 1983 liability even though such a custom has not received formal
approval through the bodys official decision making channels. Monell, 436 U.S. at 659; see
also Jane Doe A v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir. 1990). A plaintiff may
establish liability through proof that the alleged misconduct was so pervasive among the nonpolicy
making employees of the municipality as to constitute a custom or usage with the force of
law. McGautha v. Jackson County, Miss. Collections Dept., 36 F.3d 53, 55-56 (8th Cir. 1994)
(internal quotations and citations omitted). To demonstrate an unconstitutional custom, a
plaintiff must prove
(1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entitys employees; (2)
Deliberate indifference to or tacit authorization of such conduct by the
governmental entitys policymaking officials after notice to the officials of that
misconduct; and (3) That plaintiff was injured by acts pursuant to the
governmental entitys custom, i.e., that the custom was the moving force behind
the constitutional violation.
Jane Doe A, 901 F.2d at 646.
Defendants respond the County is not liable under Monell because Mattson has failed to
allege a constitutional violation. Defendants assert that Mattsons Fourth Amendment rights
were not violated when his end of the conversation with his attorney was recorded because the
call was open and obvious, having been made in front of the officers and [because Mattson]
knew it was being recorded. Defs. Reply Mem. in Support of Mot. for Summ. J. [Docket No.
22] at 3.
In Sherbrooke v. City of Pelican Rapids, 513 F.3d 809 (8th Cir. 2008), the Eighth Circuit
addressed a claim that the Citys recording of the plaintiffs end of his conversation with his
attorney violated his Fourth Amendment right to be free from unreasonable search and seizure.
Sherbrooke, like Mattson, had been arrested for driving while intoxicated and had elected to
contact his attorney before taking the breath test. Id. at 815. Pursuant to a policy within the
Pelican Rapids Police Department, the officers activated audio and video recording equipment to
record Sherbrooke as he waited to take the breath test. Id. The recording captured Sherbrookes
end of his conversation with his attorney. Id. The district court held that recording Sherbrookes
conversation constituted an unconstitutional search. Id. The Eighth Circuit reversed, reasoning
that because Sherbrooke placed his call in an open room in the presence of police officers,
Sherbrooke could not reasonably expect that the conversation was private, and there was no
search within the meaning of the Fourth Amendment. Id. That communications between an
attorney and client generally are privileged when conducted privately does not mean that a
conversation knowingly conducted in the presence of others is privileged or private. Id.
The Eighth Circuits holding in Sherbrooke dictates that Mattsons claim of being
subjected to an unconstitutional search and seizure fails and Defendants are granted summary
judgment on this claim. Mattson knew that Haverkamp was in the room during his conversation
with his attorney and thus could not reasonably expect that his conversation was private.
Further, Mattson testified that he knew he was being recorded because the camera was above
him in plain view. Mattson Dep. at 52. Accordingly, Mattson was not subjected to an
unreasonable search and seizure and his Fourth Amendment rights were not violated.
Mattson also alleges the County violated his Fourteenth Amendment substantive due
process rights because the Countys policy compromises the fundamental right to counsel
provided by the Sixth Amendment. Although Mattson asserts this claim under the Fourteenth
Amendment, it is better analyzed under the Sixth Amendment. Albright v. Oliver, 510 U.S. 266,
272 (1994) (Where a particular Amendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the guide for analyzing such a claim.
(internal quotations omitted)). At the time Mattson spoke with his counsel, his Sixth
Amendment right to counsel had not yet attached. Kirby v. Illinois, 406 U.S. 682, 689 (1972)
(holding that the Sixth Amendment right to counsel attaches upon the commencement of formal
judicial proceedings); see also City of Belle Plaine v. Stradcutter, 568 N.W.2d 545, 547 (Minn.
Ct. App. 1997) (discussing State v. Nielsen, 530 N.W.2d 212 (Minn. Ct. App. 1995), and
explaining that the process of chemical testing in a DWI investigation is not a critical stage
upon which the right to counsel attach[es] because the defendant does not have a choice to
refuse testing). Because Mattsons right to counsel had not yet attached, the County did not
violate his constitutional rights when Haverkamp remained in the room while Mattson spoke to
his attorney or when it recorded Mattsons portion of the conversation.
b. Inadequate Training
Mattson claims the County failed to train its deputies in the proper use of the taser
weapon, thus resulting in excessive force used against him in violation of his Fourth Amendment
rights. A municipality may be liable under 1983 for inadequate training of police only under
the limited circumstances where the failure to train amounts to deliberate indifference to the
rights of persons with whom police come into contact. City of Canton v. Harris, 489 U.S. 378,
380. The inquiry in an inadequate training claim is first, whether the training is adequate, and if
not, whether the inadequate training can be said to represent city policy. Id. at 389-90. The
inadequate training may be said to represent city policy where in light of the duties assigned to
specific officers or employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the policymakers of
the city can reasonably be said to have been deliberately indifferent to the need. Id. Typically a
plaintiff demonstrates a pattern of constitutional violations to prove that the need for more
training was obvious; however, the Supreme Court has not foreclosed the possibility that
evidence of a single violation of constitutional rights may demonstrate the obvious need for
additional training. Id. at 409. Evidence of the single constitutional violation needs to be
accompanied by a showing that a municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such a violation. Id.
Defendants seek summary judgment on this claim because there is absolutely no
evidence of a policy of inadequate training of Deputy Haverkamp or of other sheriffs deputies.
Defs. Mem. in Supp. of Mot. for Summ. J. at 9. Defendants rely on Haverkamps testimony of
his annual training about the use of his taser weapon. Id. Defendants also cite the policies and
procedures manual provided to Haverkamp by Becker County Sheriffs Department regarding
the use of tasers. The training materials specify that [t]he Taser may be used in situations
where force is justified to control aggressive and/or combative/noncompliant subjects, thereby
reducing the likelihood of injury to officers and subjects. Haverkamp Aff. [Docket No. 15] Ex.
B at 1. The policy and procedures manual also states that [t]he Taser shall not be used on
restrained individuals unless the actions of the person subject a potential threat of bodily harm to
themselves or any other person. Id. at 3.
Mattson has failed to offer any evidence or case law to support his claim that the training
the County provided about taser use is inadequate. Haverkamp was trained in the use of his taser
weapon and the County provided its deputies with a policy and procedures manual regarding
taser use. Haverkamp Aff. Ex. B; Haverkamp Aff. Ex. C at BCS 0140. Mattson contends that
Haverkamps training was inadequate because [h]e was never told to limit his taser use, not to
taser already-restrained individuals if other less forceful means of controlling the detainee were
available, etc. Pl.s Mem. in Oppn to Defs. Mot. for Summ. J. [Docket No. 17] at 29.
However, the policy and procedures manual does limit taser usethe applications section of the
manual limits taser use to instances when force is justified to control aggressive and/or
combative/noncompliant subjects, thereby reducing the likelihood of injury to officers and
subjects. Haverkamp Aff. Ex. B at 1. The policy limits taser use on restrained individuals to
instances when the individuals actions present the threat of harm to themselves or to others.
Mattson has not addressed why these limitations and restrictions on taser use are factually or
legally inadequate nor does he cite any supportive case law. Further, although Mattson argues
the Countys training was inadequate because it did not instruct its deputies to use lesser force
when possible, he has cited no support for the proposition that there is a duty to do so in the
limited instances when taser use is justified. Accordingly, Defendants are granted summary
judgment on Mattsons Monell claim against the County for inadequate training.
2. Claims against Haverkamp
Haverkamp asserts he is entitled to summary judgment on Mattsons excessive force
claim against him because he is protected by qualified immunity. In Saucier v. Katz, 533 U.S.
194, 200-01 (2001), the Supreme Court clarified the standard courts must apply in conducting
the qualified immunity analysis. The first question is whether, taken in the light most favorable
to the plaintiff, the facts alleged show the officers conduct violated a constitutional right. Id. at
201. If the answer to the first question in the qualified immunity analysis is yes, then the second
question is whether the constitutional right at issue was clearly established. Id. Whether a
given set of facts entitles the official to summary judgment on qualified immunity grounds is a
question of law. Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994).
Defendants do not dispute that the Fourth Amendment right to be free from excessive
force is clearly established. Rather, they assert they are entitled to summary judgment because
Haverkamps use of force was objectively reasonable and thus did not violate Mattsons
4 Although Mattson claims Haverkamp violated his rights under the First, Fourth, Sixth,
and Fourteenth Amendments, his claim of excessive force should be analyzed under the Fourth
Amendment and its reasonableness standard. Graham v. Connor, 490 U.S. 386, 395 (1989)
(all claims that law enforcement officers have used excessive forcedeadly or notin the
course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed
under the Fourth Amendment and its reasonableness standard (emphasis in original)).
constitutional rights. Mattson asserts that Haverkamps use of excessive force to effect his arrest
violated the Fourth Amendment.4
In analyzing an excessive force claim, whether Haverkamps actions were objectively
reasonable in light of the facts and circumstances confronting him must be assessed without
regard to his underlying intent or motivation. Id. at 397. To determine whether the force used to
effect Mattsons seizure was reasonable under the Fourth Amendment, the Court is required to
carefully balance the nature and quality of the intrusion on the individuals Fourth Amendment
interests against the countervailing governmental interests at stake. Id. at 396 (internal citation
and quotation marks omitted). The Supreme Courts 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. Id. Courts are to
consider all the facts and circumstances of the 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. Id.
The reasonableness of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id.
It is undisputed that Haverkamps lights and sirens were not activated while he pursued
Mattson in his squad car. It is also undisputed that Haverkamp did not identify himself
immediately upon confronting Mattson, or later as the altercation continued, or even when
Mattson requested that he do so. Transcript at 2-3. Viewing the facts in the light most favorable
to Mattson, Haverkamp knew that his lights and sirens had not activated. Mattson may well not
have known that he was being pursued by law enforcement and thus, may have had no intent to
flee law enforcement or resist arrest. Accordingly, Haverkamps conduct was unreasonable. An
objectively reasonable officer would have immediately identified himself, especially knowing
that the lights and sirens of his vehicle had not activated, and certainly would not have initiated
communication with a threat of deadly force.
To determine whether a particular right was clearly established, it must be viewed in a
particularized, relevant sense: The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right. Anderson v.
Creighton, 483 U.S. 635, 640 (1987). This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been held unlawful, but it is
to say that in the light of pre-existing law the unlawfulness must be apparent. Hope v. Pelzer,
536 U.S. 730, 739 (2002) (internal citation omitted). Although earlier cases involving
fundamentally similar facts can provide especially strong support for a conclusion that the law
is clearly established, they are not necessary to such a finding. Id. at 741. The relevant,
dispositive inquiry in determining whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in the situation he confronted.
Saucier, 533 U.S. at 202.
Defendants contend that [i]t simply was not clearly established a known right would be
violated by Deputy Haverkamp if, unbeknownst to him, his lights and sirens did not activate, and
[Mattson] fled from him purportedly without knowledge he was being pursued by law
enforcement. Defs. Mem. in Supp. of Mot. for Summ. J. at 19. However, taking the facts in
the light most favorable to Mattson, Haverkamp did know that his lights and sirens failed to
activate. A reasonable officer would clearly know that threatening someone with deadly force
and using a taser to restrain that person without first identifying oneself as law enforcement is
unlawful. Accordingly, Haverkamp is not entitled to qualified immunity and Defendants are not
entitled to summary judgment on Mattsons excessive force claim against Haverkamp.
C. False Arrest
Mattson alleges a claim of false arrest. The action for the tort of false imprisonment or
false arrest protects the personal interest in freedom from restraint of movement The restraint
may be imposed by the assertion of legal authority, and if an arrest is made without proper legal
authority, it is a false arrest . . . . Lundeen v. Renteria, 224 N.W.2d 132, 135 (Minn. 1974).
Defendants contend they are entitled to summary judgment on this claim because Mattson was
arrested for driving while impaired, fleeing in his vehicle, and disorderly conduct. Defendants
contend the arrest was lawful given [Mattsons] driving behavior, his failure to follow simple
commands to stop and get on your stomach and his blood alcohol content of .11. Defs.
Mem. in Supp. of Mot. for Summ. J. at 21. Mattson argues Haverkamps improper pursuit, his
failure to identify himself even after Mattson asked who he was, and the admission by
Haverkamp that Mattson was stopped for fleeing at least give rise to genuine issues of material
fact as to Mattsons claim of unlawful arrest.
At the time of Mattsons arrest, Haverkamp told him he was under arrest for fleeing.
There is no evidence of record in light of Haverkamps admissions that the lights and sirens in
his squad car did not activate that support probable cause for arresting Mattson for fleeing.
Accordingly, Mattsons arrest was made without proper legal authority. The post-arrest breath
test may support a later arrest for driving while impaired. However, it is the initial basis for
arrest that the Court uses to determine Mattsons false arrest claim. Because there is no legal
authority to support arresting Mattson for fleeing, Defendants are not entitled to summary
judgment on this claim.
D. Interference with Right to Counsel
In count three of his Complaint, Mattson also alleges a claim of interference with his
right to counsel. Mattson asserts that Defendants intentional act of listening and/or taping of
Mattsons telephone conversation with his attorney, while in custody at the Becker County Law
Enforcement Center, was a violation of the Fourth Amendment to the United States
Constitution. This claim is duplicative of Mattsons 1983 claim based on the failure to
provide him with a private place to speak with his attorney. For the reasons stated above,
Defendants Motion for Summary Judgment on this claim is granted.
E. Negligent Infliction of Emotional Distress
Mattson contends that as a result of Haverkamps actions, he suffered damages,
including injury, pain and suffering, mental and emotional anguish, humiliation and pecuniary
loss. Compl. 50. To establish a claim for negligent infliction of emotional distress, a
plaintiff must ordinarily show she (1) was within a zone of danger of physical impact; (2)
reasonably feared for her own safety; and (3) suffered severe emotional distress with attendant
physical manifestations. Stead-Bowers v. Langley, 636 N.W.2d 334, 343 (Minn. Ct. App.
Defendants contend that Mattson has failed to establish a prima facie case of negligent
infliction of emotional distress because the only emotional manifestation he experiences is
getting the chills and a creepy feeling when he sees law enforcement. Further, there are no
allegations of attendant physical manifestations. Mattson, asserts that he has problems with his
wrist and hand, and pain in his elbow and shoulder, for which he has undergone physical
therapy. Mattson Dep. at 56-57. Mattson also asserts that he must have a lump removed from
the spot on his back where he was tased. Id.
Mattson has failed to allege that his physical injuries are linked to his emotional distress.
To the contrary, he testified that his injuries are directly related to Haverkamps use of force. Id.
(stating that being tased while in handcuffs resulted in injuries to his arm, shoulder, elbow, and
wrist, and that being shot with the taser caused the lump in his back). Without proof that the he
experienced physical manifestations of his emotional distress, Mattson cannot recover under the
theory of negligent infliction of emotional distress. Soucek v. Banham, 503 N.W.2d 153, 164
(Minn. Ct. App. 1993) (Because emotional distress is highly subjective, often transient, and
easily alleged, our tort law . . . requires physical manifestation of the distress as proof of the
genuineness and gravity of the emotional suffering.). Accordingly, Defendants are entitled to
summary judgment on Mattsons claim of negligent infliction of emotional distress.
F. Conversion
In his Complaint, Mattson alleges a claim for conversion. Compl. 51-53. Mattson
argues that Haverkamps removal of 0.00 from Mattsons wallet and his retention of the
same constitute conversion and, as such were done in violation of Minnesota law. Id. 52.
Mattson testified that he knew he had fourteen 0 bills in his wallet because he and a group of
three other individuals had been paid that night for extra work they had performed and had
divided the payment among the four of them. Mattson Dep. at 40. Despite his testimony that
three other individuals were with him when he was paid, Mattson offers no evidence other than
his own self-serving statement. This is insufficient to create a genuine issue of material fact.
Armour and Co. v. Inver Grove Heights, 2 F.3d 276, 279 (8th Cir. 1993). Accordingly,
Defendants are entitled to summary judgment on Mattsons conversion claim.
G. Vicarious Liability and Official Immunity
Because Mattsons claim of false imprisonment survives summary judgment, the next
issue is whether Defendants are entitled to official immunity and whether the County may be
held vicariously liable for Haverkamps actions. [U]nder Minnesota law, a public official is
entitled to official immunity from state law claims when that official is charged by law with
duties that require the exercise of judgment or discretion. Generally, police officers are
classified as discretionary officers entitled to that immunity. Johnson v. Morris, 453 N.W.2d
31, 42 (Minn. 1990) (internal cites omitted); see Maras v. Brainerd, 502 N.W.2d 69, 77 (Minn.
Ct. App. 1993). However, conduct is not immune from liability if the public official is guilty of
a wilful or malicious wrong. Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991). Malice is the
intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the
willful violation of a known right. Samuelson v. City of New Ulm, 455 F.3d 871, 878 (8th Cir.
2006) (quoting Carnes v. St. Paul Union Stockyards Co., 205 N.W. 630, 631 (Minn. 1925)).
Haverkamp was performing a discretionary act when he stopped and restrained Mattson.
See Wiederhold v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (explaining that
discretionary acts are those involving professional judgment based on the specific factors of a
situation). However, Haverkamp is not entitled to official immunity because there is a genuine
issue regarding whether he is guilty of a wilful or malicious wrong. Rico, 472 N.W.2d at 107.
Taking the facts in the light most favorable to Mattson, Haverkamp knew his lights and sirens
did not activate and knew that he failed to identify himself before threatening Mattson with
deadly force and using his taser weapon. Based on these facts a reasonable jury could conclude
that Haverkamp acted maliciously. Because Haverkamp is not entitled to official immunity, the
County is not protected by the doctrine of vicarious official immunity. See Mumm v. Mornson,
708 N.W.2d 475, 493 (Minn. 2006) (holding that the City of Minneapolis was not entitled to
vicarious official immunity because the officers did not have official immunity).
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants Becker County and Becker County Deputy Sheriff
Timothy Haverkamps Motion for Summary Judgment [Docket No. 12] is GRANTED in part
and DENIED in part.
s/Ann D. Montgomery
Dated: August 12, 2008.


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