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US District Court: 42 U.S.C. § 1983 | 4th Amendment - no unreasonable seizure; immunity1 In his complaint, Roberson also names as defendants “Officers Jane Doe and RichardRoe, unknown and unnamed Austin Police officers.” Roberson now agrees that the claims against the unknown officers may be dismissed. Pl. Mem. Opp. Mot. Summ. J. 2 n.1. UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA DERRICK J. ROBERSON, Plaintiff, v. CITY OF AUSTIN, a Minnesota municipal entity; OFFICER DAVE McKICHAN, personally, individually, and in his capacity as an Austin police officer; OFFICER JAMES ERICKSON, personally, individually, and in his capacity as an Austin police officer; OFFICERS JANE DOE AND RICHARD ROE, unknown and unnamed Austin police officers, personally, individually, and in their capacities as Austin police officers; CHIEF PAUL PHILIPP as Chief of Police, personally, individually, and in his official capacity, Defendants. Case No. 06-CV-0598 (PJS/RLE) MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Albert T. Goins, Sr., GOINS AND WOOD, PC, for plaintiff. Jason M. Hiveley and Jon K. Iverson, IVERSON REUVERS, LLC, for defendants. Plaintiff Derrick Roberson brings claims under 42 U.S.C. § 1983 against Officer Dave McKichan and Sergeant James Erickson of the City of Austin Police Department for the violation of his constitutional rights.1 He also brings § 1983 claims against the City of Austin (“the City”) and against Austin Police Chief Paul Philipp. Finally, Roberson brings state tort claims against McKichan, Erickson, and the City. Defendants move for summary judgment on all of Roberson’s claims. For the reasons that follow, the Court grants the motion. 2For the most part, the Court recites the facts in the light most favorable to Roberson, as Roberson is the party resisting the motion for summary judgment. What Roberson alleges in his complaint, however, differs in some respects from what Roberson said at his deposition. A party cannot create a genuine issue as to a material fact — and thereby avoid summary judgment — by making an allegation in a pleading and then contradicting that allegation at his own deposition or in his own affidavit. See Knudsen v. United States, 254 F.3d 747, 752 (8th Cir. 2001); Mo. Hous. Dev. Comm’n v. Brice, 919 F.2d 1306, 1315 (8th Cir. 1990). “‘[J]udicial efficiency demands that a party not be allowed to controvert what it has already unequivocally told a court by the most formal and considered means possible.’” Nat’l Sur. Corp. v. Ranger Ins. Co., 260 F.3d 881, 886 (8th Cir. 2001) (quoting Soo Line R.R. v. St. Louis S.W. Ry., 125 F.3d 481, 483 (7th Cir.1997)). With respect to those matters on which Roberson’s deposition contradicts Roberson’s complaint, the Court does not necessarily credit the version most favorable to Roberson. -2- I. BACKGROUND2 At about 1:10 a.m. on February 28, 2000, Sergeant Erickson of the Austin Police Department was driving through an alley when he noticed a van parked off to the side with the engine running. Erickson parked his squad car nearby, got out of his car, and approached the van on foot. Erickson Aff. ¶ 3. Erickson shined his flashlight into the van and observed a black male, later identified as Roberson, who appeared to be sleeping or unconscious in the back of the van. Compl. ¶ 9; Erickson Aff. ¶ 3; Roberson Dep. 14. Unbeknownst to Erickson, Roberson was using the van as a camper and had parked it near a house where some of his friends were living. Roberson Dep. 14-16. Erickson’s flashlight beam did not awaken Roberson. Erickson Aff. ¶ 3; Erickson Dep. 17. Erickson drove his squad car out of the alley and called for backup. Erickson Aff. ¶ 4; Erickson Dep. 17-19. Officer McKichan arrived in response to the call, and the two officers then drove their cars into the alley. Erickson Aff. ¶ 4; Erickson Dep. 17-19; McKichan Aff. ¶ 2; McKichan Dep. 24-26. -3- Roberson’s van was parked parallel to the alley, facing a trailer covered with landscaping materials (and, behind the trailer, a garage). Erickson and McKichan parked their squad cars in the alley, one in front of the other, parallel to Roberson’s van. With the squad cars parked in the alley, and with the trailer and garage in front of the van, the front of Roberson’s van was boxed in, save for a small space between the front of McKichan’s squad car and the corner of the garage. The officers approached the van on foot, shined their flashlights into it, and identified themselves as police officers. Erickson Aff. ¶ 5; Erickson Dep. 21; McKichan Aff. ¶ 2; McKichan Dep. 28-30. Seeing that Roberson was clearly awake, Erickson again identified himself as a police officer and requested that Roberson open the door and identify himself. Erickson Aff. ¶ 5; Erickson Dep. 21; McKichan Aff. ¶ 2. Erickson also shined his flashlight on McKichan so that Roberson could see McKichan’s police uniform. Erickson Aff. ¶ 5; Erickson Dep. 21; McKichan Dep. 29-30. Erickson attempted to open the driver’s door of the van but found it locked. Compl. ¶ 10; Erickson Aff. ¶ 5; Erickson Dep. 21-22. He noticed that the driver’s wing vent was partly open, and he reached in through the vent in an attempt to unlock the door. Compl. ¶ 10; Erickson Aff. ¶ 6; Erickson Dep. 21-22. As he did so, Erickson noticed the smell of marijuana coming from the van. Erickson Aff. ¶ 6; Erickson Dep. 22. After Erickson put his hand in the vent, Roberson climbed into the front of the van and tried unsuccessfully to close the vent. Compl. ¶ 10; Erickson Aff. ¶¶ 6-7. Roberson testified that, when he awoke, he saw a hand sticking through the vent, and he feared that the hand might belong to a member of a white supremacist group that had recently been active in the Austin -4- area. Roberson Dep. 17-20. Roberson does not know what awakened him, and he did not see the person to whom the hand belonged nor anyone else outside of the van. Id. at 19. After trying to close the vent, Roberson opened a side door, saw McKichan standing outside, and then quickly closed the door. Compl. ¶ 10; Erickson Aff. ¶ 7; McKichan Aff. ¶ 3; McKichan Dep. 34-35. After Roberson shut the side door, McKichan climbed onto the trailer in front of the van, gun drawn. McKichan Aff. ¶ 5; McKichan Dep. 44-45, 54-55. McKichan drew his gun because he “wasn’t sure what Mr. Roberson’s intentions were.” McKichan Dep. 56. McKichan could not see Roberson’s hands, and Roberson “wasn’t responding normally” to the officers, causing McKichan concern. Id. After closing the side door, Roberson climbed into the driver’s seat, put the van into gear, and drove forward, striking the trailer on which McKichan was standing. Compl.¶ 11; Erickson Aff. ¶ 7; Erickson Dep. 22; McKichan Aff. ¶¶ 4-6; McKichan Dep. 54-55. (Roberson says that he did not see McKichan or anyone else standing on the trailer. Roberson Dep. 20-21.) After striking the trailer, Roberson backed up and then began accelerating forward again. Compl. ¶ 11; Erickson Aff. ¶ 7; Erickson Dep. 22-23; McKichan Aff. ¶ 6; McKichan Dep. 55- 64. According to Roberson, he did not see anyone outside of his van while he was backing up and then driving forward. Roberson Dep. 22-23. In fact, though, Erickson was in the van’s path, and Erickson had to run for cover behind a squad car to avoid being hit by Roberson. Erickson Aff. ¶ 8; Erickson Dep. 26. McKichan, afraid that Roberson was trying to run Erickson down, fired three shots at Roberson. Compl. ¶ 11; McKichan Aff.¶ 6; McKichan Dep. 63, 70, 75. As -5- Roberson was driving away, he heard gunshots. A bullet penetrated the outside of Roberson’s jacket, but was stopped by the jacket’s second layer. Roberson Dep. 24, 26. Even though McKichan thought that Roberson did not have room to escape, Roberson managed to squeeze the van through the space between the front of McKichan’s car and the corner of the garage. McKichan Aff. ¶¶ 6, 8. Roberson then drove off down the alley and turned onto a street. Erickson Aff. ¶ 10. After hearing the gunshots, Roberson “felt real faint” and “passed out.” Roberson Dep. 25. A few moments later, Roberson awoke to find that he had crashed his van into some cars. Roberson Dep. 29-30. He got out of the van and walked back to his friends’ house — near where the van had been parked, and where the officers were waiting. Id. After Roberson arrived, a resident of the house informed Erickson that Roberson was upstairs. Erickson Aff. ¶ 15. The police then entered the house and arrested Roberson. Id. ¶ 17. Erickson took Roberson to St. Olaf Hospital to be treated for his injuries. Id. ¶ 19. Roberson alleges that, in addition to the shot that lodged in his jacket, he was also shot in his left hand and right thigh. Roberson Dep. 25-26. The emergency room records indicate that Roberson reported having “received ‘gunshot wounds’” to his thumb and thigh, and the records confirm that Roberson indeed had wounds in those places. Hiveley Aff. Ex. D. But the records also indicate that the wound to the thigh was “superficial” and that the wound to the thumb was a “laceration.” Id. The records give no indication that anyone who treated Roberson believed that the wounds were caused by gunshots. Id. Defendants concede that, as a result of the incident, Roberson received a cut on his left thumb and an abrasion on his right leg. Answer ¶ VII. They also concede that a bullet -6- penetrated the shell of Roberson’s jacket. Mueller Aff. ¶ 4. They deny, however, that Roberson was otherwise struck by a bullet. Def. Mem. Supp. Summ. J. 15-16. Roberson alleges that he has suffered emotionally from his encounter with Erickson and McKichan. He is “traumatized from the experience [of being shot],” is “in fear of [his] life,” and continues to have “nightmares about that night.” Roberson Dep. 49, 52-54. To treat his symptoms, he has been prescribed Haldol, Zyprexa, and Paxil, as well as unspecified antipsychotic medications. Id. at 60-62. II. ANALYSIS A. Standard of Review Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute over a fact is “material” only if its resolution might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only if the evidence is such that a reasonable jury could return a verdict for either party. Ohio Cas. Ins. Co. v. Union Pac. R.R., 469 F.3d 1158, 1162 (8th Cir. 2006). In considering a motion for summary judgment, a court must assume that the nonmoving party’s evidence is true. Taylor v. White, 321 F.3d 710, 715 (8th Cir. 2003). B. Section 1983 In Count V of his complaint, Roberson alleges a litany of constitutional violations. Compl. ¶ 20-22. He alleges that McKichan and Erickson used excessive force against him in -7- violation of his Fourth Amendment right to be free from unreasonable seizures. Id. ¶ 20. He also alleges that the officers “violated well-established and clearly enunciated constitutional rights of Plaintiff Roberson, including but not limited to the right to be free from . . . summary punishment, violations of due process, deprivation of liberty rights and interests, and the right to equal protection of the laws.” Id. Finally, he claims that the officers violated his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. Id. ¶ 22. Beyond asserting that the officers used excessive force against him, Roberson provides no explanation of how defendants committed the alleged constitutional violations. This Court has already expressed strong disapproval of using a “shotgun” approach to plead § 1983 claims. Liggins v. Morris, 749 F. Supp. 967, 971 (D. Minn. 1990). In Liggins, then-Chief Judge Alsop wrote that the “time has come for practitioners in this district to prepare complaints alleging violations of 42 U.S.C. § 1983 in a fashion that will identify the specific claims of individual plaintiffs for specific constitutional violations as against only culpable defendants.” Id. Roberson obviously did not get the message, as he has failed to plead a prima facie case for the violation of any of his rights other than his right to be free from unreasonable seizures. The events that serve as the basis for Roberson’s § 1983 claims against the officers happened in the course of an investigatory stop and seizure by police officers. The Supreme Court has held that “all claims that law enforcement officers have used excessive force — deadly or not — in 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, rather than under a ‘substantive due process’ approach.” Graham v. Connor, 490 U.S. 386, 395 (1989). This Court -8- will therefore assess the merits of Roberson’s § 1983 claims against the officers solely under the reasonableness standard of the Fourth Amendment. 1. Erickson Roberson alleges that Erickson used unreasonable force against him in the course of seizing him. According to the undisputed facts, Erickson investigated Roberson’s presence in the alley and called for backup, bringing McKichan to the scene. As Roberson drove forward out of the alley, Erickson ducked behind one of the squad cars to avoid being run over by the van. Erickson did not use any force — much less excessive force — against Roberson. Only McKichan fired his gun. In order to prevail on an unlawful-seizure claim against a police officer, a plaintiff must show that the officer actually seized him. See Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (dismissing § 1983 claims for violation of the Fourth Amendment against officers who had not seized the plaintiff). A seizure occurs only when an officer touches a suspect or a suspect submits to an officer’s show of authority. See California v. Hodari D., 499 U.S. 621, 626 (1991); Cole, 993 F.2d at 1332. Apprehending a suspect by use of deadly force (such as shooting) qualifies as a seizure. Tennessee v. Garner, 471 U.S. 1, 7 (1985). Roberson alleges that he was seized by being shot. But Erickson and McKichan both insist, and Roberson does not dispute, that only McKichan fired a gun during the encounter. Erickson Aff. ¶¶ 8, 13-14; McKichan Aff. ¶ 6. Roberson has not alleged that Erickson ever touched him, and there is no indication that Roberson submitted to any show of authority by Erickson. In short, none of the actions of which Roberson complains constitute a seizure by -9- Erickson. The Court therefore grants summary judgment on the claim that Erickson violated Roberson’s Fourth Amendment rights. 2. McKichan As described above, McKichan fired three shots at Roberson to stop Roberson from running down Erickson with his van. Roberson alleges that McKichan’s actions were unreasonable. Defendants argue that (1) McKichan did not seize Roberson because none of McKichan’s bullets struck Roberson; (2) even if McKichan’s actions constituted a seizure, his actions were reasonable under the circumstances; and (3) even if McKichan unreasonably seized Roberson, McKichan is entitled to qualified immunity. The Court will assume, for present purposes, that Roberson was seized when one of McKichan’s bullets hit his jacket, even though the bullet did not actually touch Roberson, and even though Roberson did not submit to the shot as a “show of authority.” Cole, 993 F.2d at 1332. The Court will also assume, again for present purposes, that Roberson was seized by being hit in the thumb and thigh by bullets, even though the evidence of such contact is weak. 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.” Graham, 490 U.S. at 396. The use of deadly force to apprehend a suspect is constitutionally reasonable if “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. A “‘mistaken understanding of the facts that is reasonable in the circumstances can render a seizure based on that understanding reasonable under the Fourth Amendment.’” Seiner v. Drenon, 304 F.3d 810, 812 (8th Cir. 2002) (quoting Milstead v. Kibler, 243 F.3d 157, 165 (4th Cir. 2001)). -10- Under the circumstances described above, McKichan had probable cause to believe that Roberson was going to run down Erickson with his van, and thus his shooting at Roberson to try to protect Erickson was objectively reasonable. McKichan testified that he fired his gun because Roberson was driving his van toward Erickson and McKichan did not think that Erickson would be able to get out of the way. McKichan Aff. ¶ 6; McKichan Dep. 70, 75. Erickson testified that at the time that McKichan opened fire, he (Erickson) was, in fact, moving quickly to avoid being hit by the van. Erickson Aff. ¶ 8. Roberson has not disputed either of these claims. It is thus uncontested that McKichan had a reasonable belief that Roberson posed “a threat of serious physical harm” to Erickson. The mere fact that Erickson escaped from the van unharmed does not render McKichan’s actions unconstitutional. Although McKichan was mistaken in believing that, if Roberson was not stopped, Roberson would run down Erickson, McKichan’s belief was reasonable under the circumstances — especially in light of the speed with which the events transpired, the fact that the events were transpiring in a dark alley, and the fact that Roberson was, at a minimum, acting unusually. Under Seiner, this reasonable, albeit mistaken, belief rendered McKichan’s shooting reasonable. Roberson cites several § 1983 cases in which the Eighth Circuit held that summary judgment on the issue of whether an officer used reasonable force was improper. Pl. Mem. Opp. Mot. Summ. J. 9-10. As Roberson argues, in each of these cases the police had evidence tending to show that they used force in response to a reasonable fear of violence, yet the Eighth Circuit denied qualified immunity. These cases do not help Roberson, however, because in each of them the plaintiffs had countervailing evidence tending to show that the actions of the officers -11- were unreasonable. Roberson has no such evidence; nothing suggests that, under the circumstances, McKichan’s use of deadly force was unreasonable. Roberson also argues that “if an officer intentionally or recklessly provokes a violent response, and the provocation is an independent constitutional violation, that provocation may render the officer’s otherwise reasonable defensive use of force unreasonable as a matter of law.” Id. at 10. He elaborates by explaining that the “unconstitutional provocation . . . would proximately cause the subsequent application of deadly force.” Id. The only authority that Roberson cites for this theory is Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997). There are two problems with this theory, one factual and one legal. The factual problem is that nothing in the record suggests that either officer “intentionally or recklessly provoke[d] a violent response.” The legal problem is that the Eighth Circuit has squarely rejected this theory: “The Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general. Consequently, we scrutinize only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment.” Cole, 993 F.2d at 1333 (citations omitted); see also Gardner v. Buerger, 82 F.3d 248, 252 (8th Cir. 1996) (“[A]s the District Court correctly observed, our analysis focuses on the reasonableness of the seizure itself — here, the shooting — and not on the events leading up to it.”); Schulz v. Long, 44 F.3d 643, 648-49 (8th Cir. 1995) (whether officers created the need to use deadly force is “irrelevant”); Schneider v. City of Minneapolis, No. 03-3510, 2006 WL 1851128, at *6 (D. Minn. June 30, 2006) (same). Finally, even if McKichan’s shooting at Roberson was an unreasonable seizure, McKichan would be entitled to qualified immunity. A government official is immune from liability under § 1983 unless the constitutional right that he is accused of violating was so clearly -12- established at the time that a reasonable official would have understood that his conduct was unlawful under the circumstances. See Saucier v. Katz, 533 U.S. 194, 202 (2001). It is not enough that the right be established in an abstract sense. . . . At a high enough level of abstraction, every constitutional right is clearly established. Rather, “[t]he 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). Kahle v. Leonard, 477 F.3d 544, 552-53 (8th Cir. 2007). In other words, Roberson must demonstrate not merely that, on February 28, 2000, a reasonable police officer would have known that the unreasonable use of deadly force violated the Fourth Amendment. Rather, Roberson must demonstrate that a reasonable officer would have known that using deadly force under the specific circumstances confronting McKichan was unreasonable and thus forbidden by the Fourth Amendment. Under the test set out in Garner, a reasonable officer in McKichan’s position would not have believed that shooting at Roberson was unconstitutional. Such an officer would have concluded that there was probable cause to believe that Roberson “pose[d] a threat of serious physical harm” to Erickson and thus that the Constitution permitted the use of deadly force. In sum, even if McKichan violated Roberson’s rights by using deadly force, a reasonable officer in McKichan’s position would not have known that shooting at Roberson was unconstitutional under the circumstances, and thus McKichan is entitled to qualified immunity. 3. Failure to Intervene A police officer may be held liable under § 1983 for failing to prevent another officer from using excessive force. Webb v. Hiykel, 713 F.2d 405, 408 (8th Cir. 1983); see also O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). An officer cannot be liable for failing to intervene, -13- however, unless he had an opportunity to do so. See Jennings v. Davis, 476 F.2d 1271, 1275 (8th Cir. 1973); see also O’Neill, 839 F.2d at 11-12. In Count VI of his complaint, Roberson brings claims against both Erickson and McKichan on the theory that each failed to prevent the other from violating his constitutional rights. Compl. ¶¶ 23-27. As explained above, neither officer violated his rights, and thus these claims necessarily fail. Even if McKichan did violate Roberson’s right to be free from unreasonable seizures, Erickson could not be held liable because he could not have prevented McKichan from firing at Roberson. Roberson has offered no evidence suggesting that Erickson could have prevented McKichan from shooting his gun. Indeed, at his deposition, Roberson admitted that he did not know how Erickson could have prevented McKichan from shooting at him. Roberson Dep. 54. The Court therefore grants summary judgment on Roberson’s failure-to-intervene claims. 4. The City In Count VII of his complaint, Roberson brings Monell claims against the City and Chief Philipp on the grounds that they “failed to properly train, supervise, and/or discipline the Police Officers who violated Plaintiff’s constitutional rights.” Compl. ¶ 29. He further alleges as part of Count VII that the illegal actions of the officers were therefore “carried out pursuant to an unconstitutional policy, procedure, or practice[.]” Id.; see Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Roberson now admits that the Monell claims against the City and Chief Philipp are without merit. Pl. Mem. Opp. Mot. Summ J. 2 n.1. Roberson also sues the City “on all claims on the theory of respondeat superior or vicarious liability . . . for the actions of its officers and officials.” Compl. ¶ 3. Under Monell, -14- municipalities cannot be held liable under § 1983 on the basis of respondeat superior, and thus Roberson’s vicarious-liability theory must fail. Monell, 436 U.S. at 691. A plaintiff may prevail on a § 1983 claim against a municipality only by showing that the municipality had a policy or custom that caused the plaintiff’s injury, id. at 694, and Roberson has conceded that his Monell policy-or-custom claim lacks merit. C. State Tort Claims In addition to his § 1983 claims, Roberson brings state-law claims of negligent infliction of emotional distress and general negligence against McKichan and Erickson and seeks to hold the City vicariously liable for these torts. 1. Negligent Infliction of Emotional Distress In order to prevail on a claim of negligent infliction of emotional distress, a plaintiff must show that he “(1) was within a zone of danger of physical impact; (2) reasonably feared for [his] own safety; and (3) suffered severe emotional distress with attendant physical manifestations.” K.A.C. v. Benson, 527 N.W.2d 553, 557 (Minn. 1995). Roberson argues that he does not need to show “attendant physical manifestations” because he suffered an actual physical impact — that is, because bullets actually struck him. Pl. Mem. Opp. Mot. Summ. J. 17-18. The only authority Roberson cites for this proposition is Christenson v. Argonaut Ins. Cos., 380 N.W.2d 515, 518 (Minn. Ct. App. 1986). In Christenson, the court held that a plaintiff suing for negligent infliction of emotional distress must show that he has suffered “emotional distress and that there is an accompanying physical injury.” Id. Roberson appears to imply that “an accompanying physical injury” could be an injury that causes emotional distress (such as the laceration on his finger allegedly caused by a bullet) rather -15- than an injury that results from emotional distress. The Court is unable to find any Minnesota case that agrees with Roberson’s interpretation of Christenson. Rather, to state a claim for negligent infliction of emotional distress, Minnesota courts require that emotional distress suffered by the plaintiff manifest itself through a physical injury. See Stadler v. Cross, 295 N.W.2d 552, 553 (Minn. 1980) (holding that a plaintiff must show “severe emotional distress with resultant physical injury”). In order to prove physical injury caused by emotional distress, a plaintiff must make “an objective showing” of such manifestations, which ordinarily requires medical evidence. State by Woyke v. Tonka Corp., 420 N.W.2d 624, 627 (Minn. Ct. App. 1988); cf. Johnson v. Sampson, 208 N.W. 814, 816 (Minn. 1926) (in order to recover for emotional distress, a plaintiff must produce medical evidence that the distress caused illness). In Woyke, one of the plaintiffs testified that, as a result of suffering emotional distress, her hair began to fall out. Woyke, 420 N.W.2d at 627. Woyke held that this testimony was insufficient to show the necessary physical manifestation because the plaintiff had no medical evidence to support it. Id. Roberson has presented no medical evidence that he has suffered physical manifestations of the emotional distress that he suffered when McKichan shot at him. Roberson claims that he is “traumatized from the experience,” that he is “in fear of [his] life,” and that he continues to have “nightmares about that night,” Roberson Dep. 49, 52-54, but Roberson offers no evidence other than his own testimony to support these claims. Roberson also testified that he has been prescribed various medications, but he offers no evidence — medical or otherwise — to show that the conditions for which these drugs were prescribed were the result of his encounter with 3Roberson asserts in his brief that he has taken medication as a result of the incident with Erickson and McKichan. Pl. Mem. Opp. Summ. J. 4-5. Roberson did not so testify, however, and there is no record evidence supporting this assertion. -16- the police.3 (It seems unlikely, for example, that the antipsychotic medications were prescribed for a condition caused by McKichan shooting at Roberson.) Under Woyke, Roberson’s evidence is insufficient to establish the truth of his claims. Even if Roberson could establish, through medical evidence, that he was traumatized by the shooting and now suffers fear and nightmares because of it, Roberson’s conditions would still fall short of the type of physical manifestations of emotional distress required under Minnesota law. The Minnesota Supreme Court has set a high threshold. In Leaon v. Washington County, for example, the court held that losing weight, becoming depressed, and experiencing anger, fear, and bitterness did not suffice as physical manifestations of emotional distress. Leaon, 397 N.W.2d 867, 875 (Minn. 1986). Roberson’s complaints of emotional trauma, fear, and nightmares are no more serious than Leaon’s complaints of weight loss, fear, and depression. The officers are therefore entitled to summary judgment on Roberson’s claim of negligent infliction of emotional distress, and the City is entitled to summary judgment on the related vicarious-liability claim. 2. Official Immunity of Erickson and McKichan Both of Roberson’s state-law tort claims also fail because the officers are entitled to common-law official immunity. Official immunity protects government officials from personal liability for official acts that call for the exercise of judgment or discretion. See Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651, 655 (Minn. 2004). It does not apply to “the execution of ministerial, rather than discretionary, functions” or to willful or malicious -17- wrongs. Id. Under Minnesota law, police officers are usually not considered “purely ministerial officers” because they must exercise discretion in the course of enforcing the law. Elwood v. County of Rice, 423 N.W.2d 671, 678 (Minn. 1988) (quotations and citation omitted). Despite this general rule, courts must look at each case to determine whether a particular police action required discretion and therefore was immune. Id. In this case, Erickson and McKichan’s encounter with Roberson unquestionably required the exercise of discretion. As Erickson and McKichan began their investigation, they did not know who Roberson was, what he was doing in the alley in a van with its motor running, or why he appeared to be unconscious. They did not know if Roberson was a criminal or a victim of crime — if Roberson posed a danger or was in danger. When Roberson began to drive the van, the situation became dangerous. In deciding how to handle the risk posed by Roberson’s driving, the officers had to exercise their judgment, and to do so quickly in the face of uncertainty and danger. Cf. Pletan v. Gaines, 494 N.W.2d 38 (Minn. 1992) (holding that police officers were entitled to official immunity for making the decision to engage in a high-speed police chase). In response to the officers’ assertion of official immunity, Roberson makes a variant of his “provocation” argument. Pl. Mem Opp. Summ. J. 16. He alleges that “the officers[’] improper actions left them limited to making a final ‘split second’ decision — not mandated by their policies or procedures[.]” Id. at 16. Roberson cites no authority to support his theory that the officers somehow lost immunity by limiting their range of choices. Moreover, as the Court has already noted, the officers did not create the circumstances that justified the use of deadly force. Roberson did that by nearly driving over Erickson. -18- Roberson also cites Terwilliger v. Hennepin County, 561 N.W.2d 909, 913 (Minn. 1997), for the proposition that an official is not necessarily immune merely because his job involves some discretion. Pl. Mem. Opp. Mot. Summ. J. 16. Terwilliger, which involved the alleged negligence of a county psychiatrist, specifically distinguished the type of split-second decisions that police officers must make when confronting a threat to life or limb — precisely the type of decisionmaking involved in this case. Terwilliger, 561 N.W.2d at 913. Furthermore, Terwilliger rested partly on policy considerations regarding the granting of special privileges to public doctors. Id. The existence of a private equivalent of the type of municipal employee sued in Terwilliger distinguishes that case from this one. Official immunity does not privilege the police over some equivalent group of private workers; instead, it protects a group of workers who provide a uniquely governmental service. The Court therefore concludes that the officers are entitled to official immunity from Roberson’s state-law tort claims. 3. Vicarious Immunity of the City Finally, Roberson argues that the City is vicariously liable for the officers’ state-law torts. The Court finds that the City is vicariously immune from such liability. In Anderson, the Minnesota Supreme Court announced the general rule governing vicarious immunity: “Generally, if a public official is found to be immune from suit on a particular issue, his or her government employer will be vicariously immune from a suit arising from the employee’s conduct and claims against the employer are dismissed without explanation.” Anderson, 678 N.W.2d at 663-64. While vicarious immunity does not inevitably flow from a public official’s own immunity, see Meier v. City of Columbia Heights, 686 N.W.2d 858, 866 (Minn. Ct. App. 2004), vicarious immunity applies “in situations where officials’ -19- performance would be hindered as a result of the officials second-guessing themselves when making decisions, in anticipation that their government employer would also sustain liability as a result of their actions.” Anderson, 678 N.W.2d at 664. This is exactly the type of case in which vicarious immunity is appropriate. In confronting a dangerous situation requiring an immediate response, police officers do not have the luxury of carefully considering the possible legal consequences of their actions. It is manifestly true that officers in such situations would be hindered by the possibility of municipal liability. Cf. Pletan, 494 N.W.2d at 42 (holding that municipality was immune from liability for police officer’s decision to engage in a high-speed chase). The Court therefore concludes that the City is entitled to vicarious immunity from Roberson’s vicarious-liability claims. ORDER Based on the foregoing and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT: 1. Defendants’ motion for summary judgment [Docket No. 7] is GRANTED. 2. Plaintiff’s complaint [Docket No. 1] is DISMISSED WITH PREJUDICE AND ON THE MERITS. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: September 13 , 2007 s/Patrick J. Schiltz Patrick J. Schiltz United States District Judge |
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Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights
Reserved. Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims. Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance. |
