Kelly v. City of Minneapolis

GILBERT, Justice

(dissenting).

I respectfully dissent. I believe that the court errs first in affirming a perverse verdict and second in granting appellants immunity for actions that clearly exceeded the bounds of their discretionary authority. I would remand the case for a new trial.

I.

Respondents in this case alleged that appellants were physically abusive toward them, called them racist and sexist names, unlawfully arrested them, and exposed one of the respondent’s breasts for an extended period of time. The jury specifically found that the officers did not use excessive force, that the officers did not act discriminatorily, and that the arrests of respondents were lawful and reasonable. Based on these findings, the trial court further found that respondents did not violate the Minnesota Human Rights Act, Minn.Stat. § 363.03, subd. 4 (1998). These findings indicate a clear disbelief of each of respondents’ allegations.

However, the jury did not reject all of respondents’ claims. Instead, the jury found that appellants had intentionally inflicted emotional distress upon respondents. To find that appellants engaged in intentional infliction of emotional distress, the jury must have believed at least some of respondents’ allegations. Thus, the specific findings of no wrongdoing are perverse when considered in contrast to the finding of intentional infliction of emotional distress.

The jury’s answers to the special verdict form are wholly inconsistent, and clearly indicate a compromise verdict. Where a jury’s verdict is based on compromise rather than on the law as instructed by the trial court, a new trial should be ordered. See, e.g., Schore v. Mueller, 290 Minn. 186, 189-190, 186 N.W.2d 699, 702 (1971); Kloos v. Soo Line R.R., 286 Minn. 172, 176, 176 N.W.2d 274, 277 (1970). Accordingly, I would reverse and remand this case for a new trial.

II.

The court next holds that appellants’ actions were discretionary and the claims for intentional infliction of emotional dis*666tress are subject to appellants’ official immunity. This holding is based in part on the jury’s finding that appellants did not act with malice. Thus, the court grants immunity for conduct that is “utterly intolerable” and “so atrocious that it passes the boundaries of decency.” Haagenson v. National Farmers Union Prop. & Cas. Co., 277 N.W.2d 648, 652 n. 3 (Minn.1979) (defining intentional infliction of emotional distress).

Intentional infliction of emotional distress requires a finding that the defendant recklessly or intentionally engaged in “extreme and outrageous” conduct “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.” Id. The conduct must have resulted in emotional distress “so severe that no reasonable man could be expected to endure it.” Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 439 (Minn.1983) (quoting Restatement (Second) of Torts § 46, cmt. j (1965)). The commentary to the Restatement emphasizes the high threshold standard of proof required of a complainant. See Restatement (Second) of Torts § 46, cmt. j. A finding of intentional infliction of emotional distress is implicitly void of any legal justification, as legally justified behavior is always tolerable under the circumstances that justify it.

Malice has a much lower standard of proof than that required for intentional infliction of emotional distress. It requires a finding of “nothing more than the intentional doing of a wrongful act without legal justification or excuse.” Rico v. State, 472 N.W.2d 100, 107 (Minn.1991). Yet, while a finding of intentional infliction of emotional distress can be based on either reckless or intentional conduct, a finding of malice requires a finding of intentional conduct. See id.

The court’s rationale in its attempt to reconcile the contradictory findings of intentional infliction of emotional distress and the absence of malice is based on two possibilities: (1) the jury determined that appellants’ behavior was reckless rather than intentional, or (2) the jury determined that the police were legally justified in their actions. If the jury’s findings were, as the court implies, based on the “brawl,” the court’s reconciliation of these findings may have been appropriate. However, this court is in no position to conclude that the jury’s finding of intentional infliction of emotional distress was based on the physical altercation when the jury specifically found that appellants did not use excessive force or commit assault or battery. Instead, the finding of intentional infliction of emotional distress could have been based on the use of racist and sexist names or the exposure of one of the respondent’s breasts, although again we cannot so conclude due to the multiple contradictory findings.

The court’s attempt to reconcile the intentional infliction of emotional distress finding by determining that appellants’ behavior in the brawl was reckless rather than intentional is improper. A person does something intentionally if he acts “purposely, and not accidentally,” or “if he desires to cause consequences of his act or he believes consequences are substantially certain to result.” Black’s Law Dictionary 810 (6th ed.1990). Undoubtedly, calling an individual derogatory racist and sexist names is intentional rather than reckless. See City of Minneapolis v. Richardson, 307 Minn. 80, 89, 239 N.W.2d 197, 203 (1976). Exposing a handcuffed suspect’s breasts for an extended period of time after being requested to cover her could also be considered intentional. A “reckless brawl” does not justify such intentional and malicious behavior, and does not remove all bounds of police behavior.

The court’s attempt to reconcile the verdict by assuming that the jury determined that appellants were, under the circumstances, legally justified in their behavior is similarly flawed. No officer could believe himself to be legally justified in calling a suspect such derogatory racist and sexist names. “The use of [derogatory name-calling] has no place in the civil *667treatment of a citizen by a public official.” Richardson, 307 Minn. at 89, 239 N.W.2d at 203. It is similarly implausible that appellants believed themselves legally justified in arresting, transporting, and booking a suspect while her breasts were exposed, despite repeated requests to cover her.

I do not intend to imply that we can actually ascertain why the jury answered the special verdict form the way it did. Any factual conclusion by us regarding the basis for the jury’s finding of intentional infliction of emotional distress would itself be inconsistent with the jury’s inconsistent findings, and thus would be inappropriate. However, the court in this case concludes that the jury’s finding of intentional infliction of emotional distress was based solely on the physical altercation, a fact contradictory to the jury’s findings of no excessive force, assault, or battery. The court of appeals similarly erred in reversing the jury’s finding of no malice and concluding that the finding of intentional infliction of emotional distress was based on the use of racist and sexist names and the extended exposure of respondent’s breasts, a fact contradictory to the jury’s finding of no discrimination. Just as it is improper to conclude that the jury based its finding of intentional infliction of emotional distress on the allegations of name-calling and exposure, it is also improper for this court to imply that the jury’s finding was based solely on the physical altercation. Instead, there is no way to justify either conclusion based on the jury’s inconsistent findings.

The court’s conclusion that the officers are entitled to official immunity for their actions because the jury found that they acted without malice also avoids our traditional official immunity analysis. “The starting point for analysis of an immunity question is identification of ‘the precise governmental conduct at issue.’ ” Gleason v. Metropolitan Council Transit Ops., 582 N.W.2d 216, 219 (Minn.1998) (quotation omitted). As discussed above, because of the multiple inconsistent findings, it is impossible to determine on what conduct the jury based its finding of intentional infliction of emotional distress. The court concludes that official immunity is appropriate for appellants’ actions during the physical altercation, because the jury may have believed the conduct to be legally justified or reckless rather'than intentional. However, several of the allegations in this case are certainly not the type of conduct intended to be covered by official immunity: requiring a suspect to spend a substantial amount of time with her breasts exposed in public, and calling suspects racist and sexist names. The racist and sexist names that were allegedly used have no place in police work and are “fighting words” not covered by any First Amendment rights. See Richardson, 307 Minn. at 89, 239 N.W.2d at 203; see also Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

The doctrine of official immunity was designed to “protect[ ] public officials from the fear of personal liability that might deter independent action and impair effective performance of their duties.” Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn.1988). Official immunity “protects from personal liability a public official charged by law with duties that call for the exercise of judgment or discretion unless the official is-guilty of a wilful or malicious wrong.” Rico, 472 N.W.2d at 106-07 (citing Elwood, 423 N.W.2d at 677). Official immunity is a doctrine well-grounded in reason: it allows police officers to perform an effective and efficient job with necessary force without being subject to second-guessing of their split-second decisions. See Elwood, 423 N.W.2d at 678-79.

An officer’s conduct involving racial and gender bias is, by its very nature, malicious conduct. This conduct has never been shielded by the doctrine of official immunity. In order for official immunity to protect public officials, the officials, at the time of the conduct, must not have had “reason to know that the challenged conduct [was] prohibited.” See Rico, 472 N.W.2d at 107. There can be no doubt that a police officer knows that the use of *668racist and sexist names and the exposure of a suspect’s breasts throughout transport and booking are prohibited.

Granting police officers official immunity for engaging in such conduct does nothing to further their ability to effectively perform their duties. The court attempts to justify its granting of official immunity through “appellants’ testimony that the scene was tense and the police officers were concerned for their own safety and acted accordingly.” However, concern for one’s safety does not justify such behavior. Quite the contrary, such name-calling and demeaning actions in an already tense situation can only serve to escalate the existing conflict. Accordingly, the use of such names by police officers has no place in governmental conduct. See Richardson, 307 Minn. at 89, 239 N.W.2d at 203. Such conduct is wholly inappropriate, is irrelevant to the performance of the official duties of a police officer, and should never be condoned as “discretionary conduct” shielded by official immunity.

I would remand this case for a new trial. Furthermore, should the new trial result in a finding of intentional infliction of emotional distress as a result of the name-calling and exposure, I would hold that the doctrine of official immunity is not applicable to such acts.