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US District Court: 42 U.S.C. 1983 | 4th Amendment - no unreasonable seizure; immunity

1 In his complaint, Roberson also names as defendants Officers Jane Doe and Richard
Roe, 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.
CITY OF AUSTIN, a Minnesota municipal
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,
Case No. 06-CV-0598 (PJS/RLE)
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 Robersons 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. Commn 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. Natl 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 Robersons deposition contradicts
Robersons complaint, the Court does not necessarily credit the version most favorable to
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.
Ericksons 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.
Robersons 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 Robersons van. With the squad cars parked in the
alley, and with the trailer and garage in front of the van, the front of Robersons van was boxed
in, save for a small space between the front of McKichans squad car and the corner of the
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 McKichans police uniform. Erickson Aff. 5; Erickson
Dep. 21; McKichan Dep. 29-30.
Erickson attempted to open the drivers door of the van but found it locked. Compl. 10;
Erickson Aff. 5; Erickson Dep. 21-22. He noticed that the drivers 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
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 wasnt sure what Mr. Robersons intentions were. McKichan Dep. 56. McKichan could
not see Robersons hands, and Roberson wasnt responding normally to the officers, causing
McKichan concern. Id. After closing the side door, Roberson climbed into the drivers 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 vans 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
Roberson was driving away, he heard gunshots. A bullet penetrated the outside of Robersons
jacket, but was stopped by the jackets 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 McKichans 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
penetrated the shell of Robersons 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.
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 partys 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
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 Robersons 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
will therefore assess the merits of Robersons 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 Robersons 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 officers 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
Erickson. The Court therefore grants summary judgment on the claim that Erickson violated
Robersons 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 McKichans actions were
unreasonable. Defendants argue that (1) McKichan did not seize Roberson because none of
McKichans bullets struck Roberson; (2) even if McKichans 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
McKichans 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)).
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 McKichans
actions unconstitutional. Although McKichan was mistaken in believing that, if Roberson was
not stopped, Roberson would run down Erickson, McKichans 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 McKichans shooting
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
were unreasonable. Roberson has no such evidence; nothing suggests that, under the
circumstances, McKichans 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 officers 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 McKichans 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
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 McKichans 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 Robersons rights by using deadly force, a reasonable officer in
McKichans 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 ONeill
v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). An officer cannot be liable for failing to intervene,
however, unless he had an opportunity to do so. See Jennings v. Davis, 476 F.2d 1271, 1275
(8th Cir. 1973); see also ONeill, 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 Robersons 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 Robersons 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 Plaintiffs 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. Dept 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,
municipalities cannot be held liable under 1983 on the basis of respondeat superior, and thus
Robersons 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 plaintiffs 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
than an injury that results from emotional distress. The Court is unable to find any Minnesota
case that agrees with Robersons 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.
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, Robersons 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, Robersons 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). Robersons complaints of emotional
trauma, fear, and nightmares are no more serious than Leaons complaints of weight loss, fear,
and depression. The officers are therefore entitled to summary judgment on Robersons 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 Robersons 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
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 McKichans 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 Robersons
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.
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 Robersons 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 employees 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 officials 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
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 officers decision to engage in a high-speed chase). The Court therefore concludes that
the City is entitled to vicarious immunity from Robersons vicarious-liability claims.
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS
1. Defendants motion for summary judgment [Docket No. 7] is GRANTED.
2. Plaintiffs complaint [Docket No. 1] is DISMISSED WITH PREJUDICE AND
Dated: September 13 , 2007 s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge


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