Back to the Jul-Aug 2021 issue

Police Officer Sued for Off-Duty Actions: Is the City Liable?

CITY LIABILITY
Police off-duty work 

Police badge

The City of St. Paul, through its city attorney, rejected police officer Eric Reetz’s request for defense and indemnification (coverage for defense costs and any resulting liability) for a personal-injury lawsuit. The lawsuit challenged his offduty actions while working as a private security guard. State law (Minnesota Statutes, section 466.07) requires a city to defend and indemnify its officers and employees in lawsuits if an officer or employee “was acting in the performance of the duties of the position.” The lawsuit claimed that Reetz had negligently failed to stop a Dorothy Day Center client from bringing a knife into the center that was later used to stab another client. Reetz was not present when the stabbing occurred, and he was not involved in its investigation.

The Minnesota Court of Appeals overturned the city attorney’s decision and ruled that Reetz was entitled to defense and indemnification, citing four reasons: (1) he drove a squad car to the Dorothy Day Center; (2) he wore his police uniform and badge while working at the center; (3) he “would have had the authority” to perform police duties at the center under hypothetical facts; and (4) he was “keeping the peace” at the center.

The Minnesota Supreme Court reversed the Court of Appeals’ opinion. First, the Supreme Court confirmed that a city’s decision under Section 466.07 is a quasi-judicial decision that must be appealed directly to the Court of Appeals. Next, the Supreme Court ruled that the city attorney had properly determined that Reetz was not entitled to defense and indemnification because he was not acting in the performance of his police officer duties when he allegedly failed to detect a knife banned by the center’s policies. The Supreme Court noted that an “off-duty officer must be performing some duty under their law enforcement authority, such as exercising the arrest power or conducting a search incident to an arrest” to qualify for defense and indemnification under Section 466.07. Reetz v. City of St. Paul, 956 N.W.2d 238 (Minn. 2021). Note: The League of Minnesota Cities filed an amicus curiae brief in the city’s support.

OFFICIAL IMMUNITY
Pursuit of speeding vehicle 

Minnesota State Patrol Trooper Jacob Letourneau was patrolling Highway 247 when he observed a vehicle driving toward him that appeared to be speeding. His squad car’s radar confirmed the vehicle was traveling at 84 miles per hour in a 55-mile-per-hour zone. Concerned that the vehicle presented a “significant hazard to others,” Letourneau decided to initiate a traffic stop. He reasoned that he needed to turn around quickly by performing a U-turn, or else he would have to “travel at close to 100 mph for a significant distance to catch up with the speeding driver.”

Police car at night with flashing lightsLetourneau braked to slow down, pulled into a driveway to his right, and turned on his emergency lights. He then saw a vehicle approaching from behind. Letourneau thought the vehicle was slowing down and, because he believed its driver, Zane Vanschaick, was giving him the right of way, Letourneau pulled out from the driveway to complete the U-turn. Vanschaick was unable to stop in time and crashed into the squad car.

Vanschaick sued Letourneau for negligence. Letourneau and the State Patrol made a motion for summary judgment (court-ordered judgment without a trial), claiming that Letourneau was entitled to official immunity because his driving actions were discretionary. The district court denied the motion after concluding that Letourneau had a ministerial duty (duty prescribed by law) under State Patrol policy to comply with traffic statutes, including those regulating U-turns and careless driving.

The Minnesota Court of Appeals reversed the district court’s decision and ruled that Letourneau was entitled to official immunity because the driving statutes at issue create discretionary, not ministerial duties, and because Letourneau was exercising his professional judgment at the time of the accident. The Court of Appeals also ruled that Letourneau’s actions were not malicious, and that the State Patrol was entitled to vicarious official immunity. Vanschaick v. Letourneau, No. A20- 0705 (Minn. Ct. App. Feb. 8, 2021) (nonprecedential opinion).

CRIMINAL LAW
Pistol in a public place

A Renville County deputy sheriff stopped Kevin Serbus after Serbus swerved over the highway center lane. The deputy sheriff conducted a field sobriety test after smelling alcohol coming from the car, and a preliminary breath test showed that Serbus had an alcohol concentration of .09%. Serbus had a Ruger .45 caliber pistol in his vehicle’s center console. He had a valid permit for the pistol, but state law (Minnesota Statutes, section 624.7142) prohibits a person who is under the influence of alcohol from carrying a pistol in a “public place.” Renville County charged Serbus with violating this law.

He had a valid permit for the pistol, but state law prohibits a person who is under the influence of alcohol from carrying a pistol in a “public place.”

The district court dismissed this charge after concluding that a private motor vehicle is not a public place. The Minnesota Court of Appeals reversed the district court’s decision and ruled in the county’s favor. The Minnesota Supreme Court affirmed the Court of Appeals’ opinion and ruled that a driver of a motor vehicle on a public highway is in a “public place” for the purpose of Section 624.7142. The Supreme Court concluded that the statutory term “public place” is undefined, and that its meaning was ambiguous because it could reasonably be interpreted in more than one way. To resolve this ambiguity, the Supreme Court applied the relevant rules of statutory interpretation and determined that the Legislature had intended to prohibit an impaired driver from carrying a pistol on a public highway in a vehicle. State v. Serbus, N.W.2d (Minn. 2021).

CONSTITUTIONAL LAW
Meaning of ‘seizure’ clarified 

The Fourth Amendment to the U.S. Constitution prohibits the government from conducting unreasonable “searches and seizures.” Two officers with the New Mexico State Police, who were trying to execute an arrest warrant for another person, approached Roxanne Torres in her parked car. When they attempted to speak with her, Torres began driving away. The officers shot at the car, injuring Torres, who continued to drive away. She drove to a hospital 75 miles away, where she was treated and then returned to police custody.

Civil Rights definition on a dictionary page.Torres filed a civil-rights lawsuit, claiming that the officers’ use of force was excessive and had violated her Fourth Amendment rights. The officers claimed that their effort to stop Torres was unsuccessful; therefore, it could not qualify as a “seizure” under the Fourth Amendment. The federal district court and the 10th U.S. Circuit Court of Appeals agreed and dismissed the lawsuit.

The U.S. Supreme Court reversed the Court of Appeals’ opinion and ruled that the application of physical force to the body of a person with the intent to restrain is a seizure even if the person does not submit and is not subdued. The Supreme Court sent the case back to the district court for additional proceedings, noting that in order to prevail, Torres would need to overcome other obstacles, such as showing that the seizure was “unreasonable,” and that the officers were not entitled to qualified immunity. Torres v. Madrid, 141 U.S. 989 (2021).

CRIMINAL LAW
Test-refusal convictions

Vials of drawn bloodIn a combined appeal, the Minnesota Supreme Court considered whether the U.S. Supreme Court’s 2013 decision in Missouri v. McNeely applies retroactively to past test-refusal convictions of suspected impaired drivers who had refused to submit to a warrantless blood or urine test. Under McNeely, and later cases interpreting the ruling, Minnesota law was clarified to provide that a test refusal may only be a crime if there is a warrant for the test or a warrant exception applies.

In 2010, Mark Johnson was convicted of first-degree test refusal. In 2016, Johnson filed a petition for post-conviction relief, arguing that his conviction for refusing to submit to a warrantless blood and urine test was unconstitutional and must be reversed. The district court determined that Johnson was entitled to post-conviction relief.

Under McNeely, Minnesota law was clarified to provide that a test refusal may only be a crime if there is a warrant for the test or a warrant exception applies.The Minnesota Court of Appeals also ruled in Johnson’s favor, concluding that McNeely was based on a substantive rule of law (establishing rights) and, therefore, it should apply retroactively to Johnson’s conviction. The Minnesota Supreme Court reversed the Court of Appeals’ opinion and ruled against Johnson, ruling that McNeely was based on a procedural rule of law (establishing procedural requirements) and, therefore, McNeely only applies going forward. The Supreme Court sent the case back to the district court for additional proceedings consistent with its ruling. State v. Johnson, 956 N.W.2d 618 (Minn. 2021).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.