Rozycki v. Champlin, City of et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part defendants' 11 Motion for Summary Judgment. 1. Motion is denied with respect to Rozycki's § 1983 excessive force claim against Smith and Martin. 2. Motion is den ied with respect to Rozycki's § 1983 claim alleging warrantless home entry and unlawful arrest by Smith and Martin, except for the allegation that Smith and Martin arrested Rozycki without probable cause. 3. Motion is denied with respect to Rozycki's claim of battery against all Defendants. 4. Motion in all other respects is granted. (Written Opinion) Signed by Chief Judge John R. Tunheim on December 30, 2016. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-589 (JRT/FLN)
CITY OF CHAMPLIN, MATTHEW SMITH,
in his official and individual capacity, and JEFF
MARTIN, in his official and individual
AND ORDER ON
DEFENDANTS’ MOTION FOR
Paul Applebaum, APPLEBAUM LAW FIRM, 332 Minnesota Street,
Suite W1610, St. Paul, MN 55101, for plaintiff.
Jason M. Hiveley, IVERSON REUVERS CONDON, 9321 Ensign
Avenue South, Bloomington, MN 55438, for defendants.
Plaintiff Kenneth Rozycki brings this action against Defendants Officer Matthew
Smith, Officer Jeff Martin, and the City of Champlin, alleging claims under 42 U.S.C.
§ 1983 and Minnesota law based on an encounter between Rozycki and the officers at
Rozycki’s home on April 20, 2014. Rozycki alleges that Martin and Smith violated his
Fourth Amendment rights by entering his garage without a warrant or consent, tackling
and restraining him – which resulted in his pants and underwear falling down for some
period of time – and arresting him inside his home without a warrant or probable cause.
Rozycki also alleges battery and invasion of privacy in connection with these events. All
Defendants move for summary judgment on all claims.
The Court will grant Smith’s and Martin’s motion for summary judgment as to the
§ 1983 claims of arrest without probable cause and unlawful strip search; however, the
Court will deny summary judgment as to the claims of unlawful, warrantless home entry
and arrest and excessive force, as Smith and Martin are not entitled to qualified immunity
on these claims. The Court will grant the City of Champlin’s motion for summary
judgment as to all § 1983 claims because Rozycki has failed to provide any factual or
legal basis for extending liability to the City. As for the state claims, the Court will grant
summary judgment as to all Defendants on Rozycki’s claim of invasion of privacy, but
will deny summary judgment as to all Defendants on Rozycki’s claim of battery because
Defendants are not entitled to official immunity.
EVENTS OF APRIL 20, 2014
On the afternoon of Easter Sunday, April 20, 2014, Plaintiff Kenneth Rozycki was
at his home in Champlin, Minnesota, with a number of family members and family
friends. Defendant Matthew Smith, a Champlin police officer, responded to a call from
Rozycki’s neighbor complaining of dogs barking loudly at Rozycki’s home. (Aff. of
Brian P. Taylor (“Taylor Aff.”), Ex. 1 (“Smith Dep.”) at 11:21-13:14, May 2, 2016,
Docket No. 14; Taylor Aff., Ex. 7 (“Rozycki Dep.”) at 28:3-17.) Smith arrived in the late
afternoon and observed about half a dozen people in the driveway area drinking beer.
(Smith Dep. at 19:20-20:11). Rocyzki went out to the street to speak with Smith, who
remained in his squad car. (Smith Dep. at 20:19-23, 21:18-22:15; Rozycki Dep. at 28:36.) When Smith brought up the noise complaint, Rozycki became verbally agitated.
(Smith Dep. at 22:16-25:6; Taylor Aff., Ex. 2 (“Jason Dep.”) at 9:25-11:3; Rozycki Dep.
at 29:8-30:2.) Rozycki eventually walked away from the squad car. (Rozycki Dep. at
Rozycki’s adult son Jason Rozycki, accompanied by Jason’s son, stayed near
Smith’s car briefly after Rozycki walked away; Jason testified that Smith muttered
something along the lines of “typical Rozyckis,” after which Jason said, “[y]ou want my
son to respect the police but you are making comments like this.” (Jason Dep. at 11:3-21;
see also Taylor Aff., Ex. 4 (“Jeremy Dep.”) at 10:8-17.) According to Jason, Smith
apologized and left the scene. (Jason Dep. at 11:8-9, 15:1-6.) In contrast, Smith testified
that Rozycki told him the dogs would be put inside, after which Smith drove away, with
no mention of the “typical Rozyckis” statement. (Smith Dep. at 25:5-24.)
Shortly after Smith left, Rozycki had a verbal exchange with the neighbor who had
made the noise complaint. (Taylor Aff., Ex. 5 (“Erstad Dep.”) at 14:16-15:1.) The
neighbor then called 911, reporting that Rozycki had threatened her, saying “if you ever
call the police on my dogs barking again, it will be the fucking last time you call.” The
neighbor also reported that she felt “very threatened,” and that Rozycki had threatened
her in the past. (Smith Dep. at 27:17-33:23, 28:16-31:4, 33:15-23; see also Martin Dep.
at 13:18-23.) Rozycki testified, on the other hand, that although he did express his
frustration and questioned his neighbor about why she called the police, he had not
threatened her, and one other witness in Rozycki’s yard at the time also testified that
Rozycki made no threat. 1 (Rozycki Dep. at 32:7-33:10; Erstad Dep. at 15:16-19.) Smith
testified that based on this telephone call, he believed Rozycki’s conduct amounted to
felony terroristic threats. (Smith Dep. at 32:4-33:14.)
Smith, Defendant Jeff Martin, a Champlin police officer, and Tony Mortinson, an
Osseo police officer, responded in person to the neighbor’s 911 call. The three officers
met a few blocks from Rozycki’s house to discuss the situation. (Smith Dep. at 33:2435:9; Taylor Aff., Ex. 6 (“Martin Dep.”) at 12:4-15:13; Aff. of Andrew Irlbeck (“Irlbeck
Aff.”), Ex. 13, May 23, 2016, Docket No. 20.) At the time of the events in question,
Martin weighed over 290 pounds and was six feet four inches tall. (Martin Dep. at 6:257:6; Irlbeck Aff., Ex. 4 at 2.) An onlooker testified (presumably referring to Martin) that
one of the officers at the Rozycki home that day was “the biggest cop that [she had] ever
seen.” (Matheny Dep. at 12:14.) According to Mortinson’s police report, before the trio
approached the Rozycki house, Smith and Martin told him that they planned to arrest
Rozycki for terroristic threats and that they expected the other people at the Rozycki
home to fight the officers during the arrest. (Irlbeck Aff., Ex. 13.)
The three officers then drove their squad cars closer to the Rozycki house, parked
on the street, and approached the house on foot. (Smith Dep. at 35:10-23, 39:16-19;
Rozycki alleges that the neighbor who made the complaints had a history of calling the
police on Rozycki, as well on her other neighbors, and that the police department was biased in
the neighbor’s favor. (Rozycki Dep. at 33:1-3; 34:1-7.)
Martin Dep. at 15:12-19, 16:4-10.) When the officers drove up, Rozycki and a number of
adults were in the driveway drinking beer and the garage door was open. (Smith Dep. at
35:18-36:8, 37:24-39:14; Martin Dep. at 15:20-23; Def. Ex. 13 at 18:24:45-50; Taylor
Aff., Ex. 11 (“Coffey Dep.”) at 14:23-15:20; Taylor Aff., Ex. 13 (“Smith Video”) at
18:24:44-47.) Multiple onlookers testified that it appeared as though the officers snuck
up on Rozycki by walking up along the side of the house, out of Rozycki’s view. (Taylor
Aff., Ex. 3 (“Countryman Dep.”), at 18:15-20, 19:3-5, 22:15-24, 23:11-12; 69:9-70:7;
Taylor Aff., Ex. 10 (“Matheny Dep.”) at 12:1-24, 14:4-22, 16:13-17.) The officers deny
that they were sneaking up on Rozycki and testified that they merely walked up to the
house from their cars in plain sight – at least one witness statement supports this version
of events. 2 (Smith Dep. at 35:18-23, 39:16-19; Martin Dep. at 16:4-17:16; Jeremy Dep.
The key events in this case took place over the span of about thirty seconds, 3
starting when Smith, after walking within about fifteen feet of Rozycki’s house, asked
Smith’s squad car video does not picture the officers’ approach to the house.
The camera inside Smith’s squad car was on for the duration of the officers’ encounter
with Rozycki; the audio accompanying the video comes from Smith’s lapel microphone. The
microphone picked up the following details: about ten seconds after exiting his squad car, Smith
asked: “Ken, can I talk to you?” (Smith Video at 18:25:01.) Nine seconds later, Smith repeats:
“Can I talk to you?” (Id. at 18:25:10.) A second or so later, Smith says “Ok, come on over
here.” (Id. at 18:25:11-14.) A different male voice can be heard on the recording saying “Dad
just be normal.” (Id. at 18:25:14-16.) Less than a second after that, Rozycki’s voice says, rather
forcefully, “don’t come in my garage!” (Id. at 18:25:16-17.) Less than a second later, Smith
states “you’re under arrest” twice in quick succession. (Id. at 18:25:17-19.) By the time Smith
(Footnote continued on next page.)
Rozycki if the two of them could talk. 4 (Smith Dep. at 39:16-40:19.) Instead of joining
Smith for the requested conversation, Rozycki walked toward the door inside the garage
leading into the house. (Smith Dep. at 40:21-22, 42:17-43:1; Rozycki Dep. at 36:2-6.)
Smith testified that he perceived Rozycki’s movement toward the interior door as an
attempt to retreat and to disobey Smith’s request. (Smith Dep. at 44:21-45:17; see also
Irlbeck Aff., Ex. 3 at 5.) A few seconds later, Rozycki told the officers not to enter the
garage, and then Smith immediately told Rozycki twice that he was under arrest, ran into
the garage, and tackled Rozycki in the doorway leading into the house. (Rozycki Dep. at
36:6-11; Smith Dep. at 43:2-45:24; Jeremy Dep. at 16:9-23; Taylor Aff., Ex. 12 (“Barrett
announces the arrest the second time, background noise is building, and a few seconds later,
Rozycki is yelling in pain and complaining about his hip. (Id. at 18:25:19-28.)
The parties do not agree about where Rozycki was standing when Smith first
approached the house. Rozycki and others testified that he was already inside the garage and
walking toward the door to the house before he became aware of the officers. (Rozycki Dep. at
35:12-25; see also Countryman Dep. at 23:19-24:6; Coffey Dep. at 15:8-24.) Smith and Martin
testified that Rozycki was standing a few steps outside of the garage when Smith approached,
and after Rozycki saw Smith, Rozycki started moving quickly into the garage. (Smith Dep. at
39:7-40:22, 42:18-43:5, 44:5-8; see also Martin Dep. at 16:12-18.) Neither account necessarily
conflicts with the audio recording. For purposes of summary judgment, this Court will assume
that Rozycki was in the garage when Smith started speaking to him. Defendants concede in their
briefing that Rozycki was inside the garage when Smith first told Rozycki that he was under
arrest, which is consistent with the record (Smith Dep. at 44:9-20; Smith Video at 18:25:16-17
(Rozycki stating “don’t come in my garage” just before Smith announces the arrest – wording
suggesting that Rozycki was inside the garage)).
Dep.”) at 17:2-25.) Multiple witnesses testified that Smith and Martin entered the garage
and tackled and restrained Rozycki without any noticeable provocation. 5
As a result of the tackle, both Rozycki and Smith ended up lying with the top
halves of their bodies inside the door leading into the house and their legs lying in the
garage on the stairs leading up to the door. (Rozycki Dep. at 43:4-23; Martin Dep. at
19:2-15; Smith Dep. at 45:17-46:3.) Martin entered the garage shortly after Smith did;
after Smith “took [Rozycki] down to the ground,” Martin assisted in restraining Rozycki
by holding his legs. (Smith Dep. at 45:17-47:8; Martin Dep. at 20:5-19; Rozycki Dep. at
39:10-11.) Smith then stood up and Martin moved Rozycki’s body down the stairs onto
the concrete garage floor, where Smith and Martin continued to restrain him, rolled him
onto his stomach, and handcuffed his hands behind his back. (Smith Dep. at 46:24-47:4,
50:21-24; Martin Dep. at 20:24-25:11, 22:1-25; Rozycki Dep. at 38:8-41:25.) Martin
testified that he “slid [Rozycki] down the stairs gently,” and “roll[ed] him over to place
him under arrest and put his hands behind his back.”
(Martin Dep. at 20:5-21:3.)
Rozycki described the officers’ efforts somewhat differently, testifying that they
“slammed” his body into the floor, and in the process he hit his hip and the right side of
his face and head on the concrete floor, causing pain to his hip. (Rozycki Dep. at 36:115
Kayleigh Matheny, a neighbor watching from across the street, testified that when the
officers arrived, “all of a sudden it was craziness and [the officers] just ran up and, started, like
pushing through people.” (Matheny Dep. at 12:6-25; see also id. at 26:12-18.) Another witness
from across the street testified that Smith’s and Martin’s use of force against Rozycki was
unprovoked and “uncalled for,” since Rozycki is in his fifties and “wasn’t a threat,” while one of
the officers (Martin) was around 300 pounds and very tall. (Countryman Dep. at 44:25-45:15.)
15, 39:3-42:3.) A neighbor watching from across the street testified that around the time
Rozycki was tackled, she heard screaming followed by a “disturbing” sound of a body
hitting the garage floor. (Matheny Dep. at 12:24-13:3.)
The officers perceived Rozycki to be physically resisting them and repeatedly told
him to stop resisting. (Smith Dep. at 47:3; Smith Video at 18:25:25-34; see also Irlbeck
Aff., Ex. 3 at 5; Irlbeck Aff., Ex. 4 at 5.) Meanwhile, Rozycki and witnesses testified that
Rozycki was not resisting and that starting shortly after he was tackled, Rozycki was
moaning and yelling in pain, stating multiple times that his artificial hip was injured.
(Barrett Dep. at 16:4-5; Matheny Dep. at 13:11-12, 21:5-7, 22:16-17; Jeremy Dep. at
20:5-17, 23:16-23; see also Smith Video at 18:25:22-28; Rozycki Dep. at 72:17-20.)
Martin testified that during the process of handcuffing Rozycki, after he became aware of
Rozycki’s hip complaints, “we kind of stopped for a minute, just because we didn’t want
to further injure [his hips].” (Martin. Dep. at 22:1-11.)
At some point during the course of the tackle or later restraint, Rozycki’s pants
and underwear were pulled down to his ankles, and he was exposed to onlookers in the
garage. (Jason Dep. at 18:1-19:3; Jeremy Dep. at 16:17-17:4; Rozycki Dep. at 48:150:14; Taylor Aff., Ex. 8 (“Jordan Dep.”) at 25:16-27:1.) Rozycki does not allege that
the officers conducted any sort of invasive search, but he does allege that the officers
waited longer than necessary to pull his pants up and did not allow his relatives and
friends standing nearby to pull his pants up when they tried to do so. (Taylor Aff., Ex. 9
(“Angela Dep.”) at 14:13-22; Jason Dep. at 19:7-14, 20:16-20; Jeremy Dep. at 17:1-15;
Jordan Dep. at 26:4-11; Barrett Dep. at 15:9-14, 19:19-20:1.) It is not clear precisely
when Rozycki’s pants were pulled back up. 6
Over the course of the next seven or eight minutes, Smith and Martin stood
Rozycki up and walked him out of the garage, still handcuffed, where eventually they let
him lie down on the ground to wait for an ambulance. (Smith Video at 18:26:3018:30:45; Smith Dep. at 52:3-53:16; Jeremy Dep. at 23:16-24:20; Rozycki Dep. at 47:1948:5, 50:15-51:13, 56:2-16.) During this period, the audio recording captures intermittent
statements of pain, confusion, and agitation from Rozycki, as well as officer statements
both explaining to Rozycki that the officers were “trying to help [him] up” and also, at
other moments, abruptly ordering Rozycki to cooperate, to stand up, and to walk. (See,
e.g., Smith Video at 18:27:00-30, 18:28:50-29:10.)
Smith testified that during this
period, Rozycki collapsed in the garage at one point after standing, and also that he “went
limp” and “wasn’t cooperating at all anymore, and at this time he was saying that his hip
or hips were sore [and that] he had artificial hips.” (Smith Dep. at 52:9-17; see also
Martin Dep. at 24:11-17.)
Whether the officers used any force against Rozycki after handcuffing him – other
than the minimal force necessary to stand him up and walk him out of the garage – is a
Rozycki testified that he remembers his pants being down at some point after he left the
garage, (Rozycki Dep. at 50:9-21, 57:9), but many witnesses testified that Rozycki’s pants had
been pulled up by the time the officers walked Rozycki out of the garage. (Jordan Dep. at 26:1223; Erstad Dep. at 22:15-20; Matheny Dep. at 29:13-30:23; Coffey Dep. at 25:20-26:12; see also
Irlbeck Aff., Ex. 7 at 1.)
matter in dispute. Rozycki alleges that at some point after he was handcuffed, an officer
placed Rozycki in a chokehold, whispered “I’m sick of your bullshit Ken,” 7 and slammed
his body against a car parked in the driveway. (Rozycki Dep. at 57:9-58:7.) Multiple
witness statements support this allegation. (Jason Dep. at 30:10-31:20; Angela Dep. at
12:16-13:5; Matheny Dep. at 28:22-29:12, 30:13-15; Coffey Dep. at 18:8-14; Barrett
Dep. at 15:23-16:2, 20:9-21:6.) While Rozycki testified that he does not remember
which officer committed these acts, (Rozycki Dep. at 57:10-13), another witness testified
that “the bigger cop” (presumably Martin) had Rozycki in a chokehold and “was tossing
him around” after he was handcuffed, (Coffey Dep. at 18:14). One witness also testified
that when the officers walked Rozycki outside and let him lie on the ground, they
“pushed him down into the ground.” (Jason Dep. at 31:21-25.) Defendants deny that any
officer on the scene placed Rozycki in a chokehold, slammed him against a car,
whispered such a statement in his ear, or threw Rozycki to the ground.
At some point during Rozycki’s exclamations of pain and fear about his hips
possibly becoming dislocated, an officer is recorded saying: “If you wouldn’t have run
from me when I told you you were under arrest it wouldn’t have happened,” (Smith
Video at 18:31:37-40), and in response a male voice chimes in: “we have a lot of
This statement is not audible on either of the available audio recordings, but the sound
on the recordings is also very muddled for many minutes. If Martin had committed the alleged
chokehold and whispered this statement, it would not necessarily have been picked up by the
audio recording since Martin’s lapel microphone was not on for the first eight minutes of the
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witnesses,” (id. at 18:31:40-43.) The audio recording later captures Smith stating “I
asked him to step out and talk to me and I told him you are under arrest,” (id. at 18:32:2545), and later, “when somebody runs from me when I tell them they’re under arrest I can
do anything that I need to to get them into custody,” (id. at 18:33:05-20).
Between the moment that Smith first tackled Rozycki and the time the officers lay
Rozycki on the ground outside of the garage to wait for an ambulance, the situation was
tense and volatile inside the garage, according to Smith. (Smith Dep. at 48:5-20, 49:550:5, 50:25-52:25; see also Smith Video at 18:25:45-18:26:15.) The other individuals at
Rozycki’s house (including his four adult children, a few family friends, and a few
children) were all watching what was going on between Rozycki and the police, and they
came gradually closer to Rozycki and the officers and yelled and asked questions
throughout the process. (Smith Video at 18:26:40-18:30:00; see also Smith Dep. at 51:911; Martin Dep. at 24:3-23.) Smith testified that the individuals in the crowd were not
following police commands and the officers were afraid of what the crowd might do,
especially given that many of them had been drinking. (See, e.g., Smith Dep. at 48:5-20,
51:8-24.) The officers repeatedly yelled at the onlookers to back up, threatened them
with arrest, and warded them off by holding out a taser; according to Smith, while Smith
and Martin were restraining Rozycki, Mortinson was engaged in “crowd control.” (Smith
Video at 18:25:28-50; Smith Dep. at 51:19-24; Rozycki Dep. at 53:1-7; Angela Dep. at
11:7-15.) The officers did end up arresting one onlooker – Rozycki’s son Jordan Rozycki
– due to his conduct in the garage. (Martin Dep. at 24:24-25:19.) However, at least one
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witness testified that when the officers ordered the witnesses to back up, the crowd
complied. (Angela Dep. at 11:13-15.) There is also some evidence that many of the
witnesses in the garage were simply trying to understand what was happening and to find
a way to pull up Rozycki’s pants. (See, e.g., Jason Dep. at 19:9-14; Rozycki Dep. at
After Rozycki was settled on the ground outside of the garage, he remained in
handcuffs until an ambulance arrived to transport him to a hospital. (Smith Video at
18:30:45-18:53:20; Smith Dep. at 55:9-57:15.) There were a few people across the street
who saw and heard what happened. These witnesses’ testimony generally supports
Rozycki’s allegations that officers snuck up on him, tackled him without provocation,
and were physically forceful with him. (See Smith Dep. at 51:13-18; Countryman Dep.
at 14:1-14; Matheny Dep. at 7:18-8:25; Coffey Dep. at 11:10-23, 12:19-26:13.)
Defendants repeatedly point out that Rozycki testified that his memory of the
events in question is a “little fuzzy” and that Rozycki had been drinking before the
encounter. Rozycki attributes his “fuzzy” memory to the officers’ use of force when they
allegedly slammed his head into the floor. (Rozycki Dep. at 46:18-24, 62:3-15, 71:2272:14, 90:19-24, 96:1-8, 107:19-23; Jason Dep. at 27:16-19; Jeremy Dep. at 28:21-29:1.)
Defendants also emphasize that Smith and Martin were familiar with Rozycki from past
disturbances at the Rozycki home. According to Smith, in his experience, even minor
situations at Rozycki’s residence could turn bad quickly, especially if alcohol was
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involved. (Smith Dep. at 13:15-19:2, 20:25-22:12; see also Jason Dep. at 11:22-13:14;
Martin Dep. at 8:12-11:19.)
In the end, an x-ray showed no displacement or fractures in Rozycki’s hips.
Rozycki claims damages including lasting hip pain and bruising, a bruised rib, a bruised
face and ear, a concussion, pain and suffering, embarrassment and mental anguish, a loss
of liberty, and medical bills in the amount of $5,612.12. Rozycki was never charged with
any crime related to these events.
Rozycki filed this action in Minnesota state court in December of 2014, asserting a
number of federal and state law claims. Pursuant to 42 U.S.C. § 1983, Rozycki argues
that Smith and Martin violated his Fourth Amendment rights by using excessive force,
conducting an unlawful strip search, arresting him without arguable probable cause, and
unlawfully entering his home and arresting him there without a warrant. Rozycki also
asserts state law battery and invasion of privacy claims.
Defendants removed to the District of Minnesota on February 25, 2015. On
May 2, 2016, Defendants filed a motion for summary judgment on all claims, arguing
that Smith and Martin are entitled to qualified immunity in relation to the § 1983 claims,
there is no basis to hold the City of Champlin vicariously liable for the alleged § 1983
violations, and the state law claims fail as a matter of law against all Defendants, or
alternatively, Defendants are entitled to official immunity.
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STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). A fact is material if it might affect the outcome of the lawsuit, and a dispute is
genuine if the evidence is such that it could lead a reasonable jury to return a verdict for
either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court
considering a motion for summary judgment must view the facts in the light most
favorable to the non-moving party and give that party the benefit of all reasonable
inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate if the nonmoving
party “fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “To defeat a motion for summary
judgment, a party may not rest upon allegations, but must produce probative evidence
sufficient to demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ.
of Ark. Bd. of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009). If the plaintiff’s version of
events “is blatantly contradicted by the record, so that no reasonable jury could believe it,
a court should not adopt that version of the facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
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SECTION 1983 CLAIMS
Smith and Martin
“To state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation of
a right secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” Cook v.
City of Bella Villa, 582 F.3d 840, 848-49 (8th Cir. 2009) (internal quotation marks and
Additionally, the doctrine of qualified immunity shields police
officers from liability for civil damages, “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The protection of qualified
immunity applies regardless of whether the government official’s error is ‘a mistake of
law, a mistake of fact, or a mistake based on mixed questions of law and fact.’” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567
(2004) (Kennedy J., dissenting)). The doctrine thus gives police officers “breathing room
to make reasonable but mistaken judgments [and] protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Ashcroft v. al–Kidd, 563 U.S.
731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “Officials are not
liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Davis
v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (quoting Maciariello v. Sumner, 973 F.2d 295,
298 (4th Cir. 1992)).
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In assessing whether a police officer is entitled to qualified immunity, courts
consider two factors, which may be examined in either order: (1) whether the facts
indicate “a violation of a constitutional right,” and (2) “whether the right at issue was
‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson, 555 U.S.
at 232, 236 (citation omitted).
“Unless both of these questions are answered
affirmatively, [the defendant] is entitled to qualified immunity.” Nord v. Walsh Cty., 757
F.3d 734, 738 (8th Cir. 2014).
“Although the defendant bears the burden of proof for this affirmative defense [of
qualified immunity], the plaintiff must demonstrate that the law was clearly established.”
Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th Cir. 2014) (quoting Monroe v. Ark.
State Univ., 495 F.3d 591, 594 (8th Cir. 2007)). “For a right to be considered clearly
established, the ‘contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.’” Lawyer v. City of Council
Bluffs, 361 F.3d 1099, 1103 (8th Cir. 2004) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)); see also United States v. Lanier, 520 U.S. 259, 270-72 (1997).
“Whether a given set of facts entitles the official to summary judgment on qualified
immunity grounds is a question of law. But if there is a genuine dispute concerning
predicate facts material to the qualified immunity issue, there can be no summary
judgment.” Wimbley v. Cashion, 588 F.3d 959, 961 (8th Cir. 2009) (quoting Olson v.
Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003)).
The Court will analyze each alleged § 1983 violation, and whether Smith and
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Martin are entitled to qualified immunity, separately below.
Probable Cause 8
In order to comply with the Fourth Amendment, a warrantless arrest must be
“supported by probable cause.” Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011). A
law enforcement officer has probable cause “when the totality of the circumstances at the
time of the arrest ‘are sufficient to lead a reasonable person to believe that the [arrestee]
has committed or is committing an offense.’” Id. at 523 (quoting Fisher v. Wal-Mart
Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). For qualified immunity regarding a
warrantless arrest claim, officers need only have had “arguable probable cause.” Amrine
v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008). Arguable probable cause protects an officer
who “arrest[s] a suspect under the mistaken belief that [he] ha[s] probable cause to do so,
provided that the mistake is objectively reasonable.” Id. While the probable cause
standard gives law enforcement “room for reasonable mistakes,” the qualified immunity
standard for a warrantless arrest claim, “affords law enforcement officials an even wider
berth for mistaken judgments ‘by protecting all but the plainly incompetent or those who
Rozycki argues that if Smith and Martin were performing a Terry stop, that stop was not
supported by a reasonable suspicion and was not conducted in a manner “reasonably related in
scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392
U.S. 1, 19-20 (1968). No Terry stop occurred in this case: the officers shifted abruptly from
requesting that Rozycki talk with them to, just a few seconds later, tackling and arresting him.
However, if there were a brief Terry stop, this Court finds that this stop was supported by a
reasonable suspicion of criminal activity. Additionally, the stop ended when Smith announced
Rozycki’s arrest, so the manner in which the stop was conducted (Smith merely requesting that
Rozycki step away from the group and talk with him) is of no constitutional concern.
- 17 -
knowingly violate the law.’” Ulrich v. Pope Cty., 715 F.3d 1054, 1059 (8th Cir. 2013)
(quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
To determine whether there was arguable probable cause, courts first examine the
criminal statute authorizing the arrest in question. See Small v. McCrystal, 708 F.3d 997,
1003 (8th Cir. 2013). Rozycki was arrested for felony terroristic threats 9 under Minn.
Stat. § 609.713, subd. 1, which reads:
Threaten violence; intent to terrorize. Whoever threatens, directly or
indirectly, to commit any crime of violence with purpose to terrorize
another or to cause evacuation of a building, place of assembly, vehicle or
facility of public transportation or otherwise to cause serious public
inconvenience, or in a reckless disregard of the risk of causing such terror
or inconvenience may be sentenced to imprisonment for not more than five
years or to payment of a fine of not more than $10,000, or both.
“Terrorize means to cause extreme fear by use of violence or threats.” State v. Schweppe,
237 N.W.2d 609, 614 (Minn. 1975). A “threat is a declaration of an intention to injure
another or his property by some unlawful act,” and “the question of whether a given
statement is a threat turns on whether the communication in its context would have a
reasonable tendency to create apprehension that its originator will act according to its
tenor.” Id. at 613 (citations omitted). The statute requires either purpose, defined as
“aim, objective, or intention,” id. at 614, or reckless disregard, defined as “conscious
disregard of [a] substantial, unjustifiable risk,” State v. Cole, 542 N.W.2d 43, 52 (Minn.
Defendants clarified in their briefing that they only argue that there was arguable
probable cause to believe that Rozycki had committed felony terroristic threats.
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Rozycki’s neighbor reported that Rozycki made a threat that communicated an
intention to kill her. From what the officers knew at the time, Rozycki had threatened the
neighbor in the past, there was an ongoing conflict between Rozycki and the neighbor
over a dog barking, Rozycki had a history of activity with the police because of various
disturbances, and the neighbor felt very threatened by Rozycki. 10
Based on the
neighbor’s report, a reasonable officer could have concluded, in this context, that there
was probable cause to believe Rozycki acted with the purpose of terrorizing the neighbor,
or at least with reckless disregard of the risk of causing such terror. 11 Therefore, Smith
Both Smith and Martin directly participated in Rozycki’s arrest, so they may be held
liable if the arrest was unlawful. See Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997).
Both Smith and Martin were also aware of the neighbor’s complaint of threats, since Smith
spoke with the neighbor, and Smith communicated the content of the threat to Martin before the
two arrested Rozycki. They had also both had dealings with Rozycki in the past. Therefore, this
Court’s analysis of arguable probable cause applies to both Smith and Martin.
Defendants also argue that the Rozycki’s “deci[sion] to retreat into his house rather
than speak with Officer Smith regarding the incident” was a factor that increased probable cause;
the Court rejects this argument. Smith merely requested that Rozycki speak with him; therefore,
it was Rozycki’s prerogative to decline this invitation. See Florida v. Royer, 460 U.S. 491, 49798 (1983) (explaining that when an officer asks an individual “if he is willing to answer some
questions . . . [t]he person approached . . . need not answer any question put to him; indeed, he
may decline to listen to the questions at all and may go on his way”). We presume that Rozycki
was inside his garage at the time of the request; he was under no obligation to come out to talk
with Smith. A decision not to engage in a consensual conversation with the police is not a
circumstance that gives rise to probable cause. Cf. id. at 498 (explaining that when an individual
declines to engage in a consensual conversation with police, “his refusal to listen or answer does
not, without more, furnish” reasonable suspicion to justify a Terry stop). Furthermore, at
summary judgment we must conclude that Rozycki was not fleeing, but even if we did not
construe the evidence in Rozycki’s favor, there is scant evidence that Rozycki was fleeing from
Smith at any point during this encounter. Thus, the characterization of Rozycki’s movement
towards the door to his house as a “retreat” is questionable.
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and Martin had at least arguable probable cause, and they are entitled to qualified
immunity on the claim that they arrested Rozycki without probable cause.
Rozycki contends that he never threatened his neighbor, so Smith and Martin
lacked arguable probable cause. Although Rozycki is entitled to a favorable construction
of disputed facts at summary judgment, Rozycki has put forth no evidence calling into
question the truth of Smith’s assertion that the neighbor communicated to Smith that
Rozycki threatened her. Even if it is true that Rozycki never threatened his neighbor, it
was not an objectively unreasonable “mistake” for Smith and Martin to rely on the
neighbor’s complaint. since “officials may rely on hearsay statements to determine that
probable cause exists.” Carpenter v. Gage, 686 F.3d 644, 649 (8th Cir. 2012) (citing
Illinois v. Gates, 462 U.S. 213, 241-42 (1983)).
Lastly, Rozycki argues that Smith and Martin had a “duty to conduct a reasonably
thorough investigation prior to arresting” Rozycki, given that there were no exigent
circumstances, and “probable cause does not exist [because] a minimal further
investigation would have exonerated” him. Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.
1999) (citations omitted). It would have been clearly preferable for Smith and Martin to
arrest Rozycki with a warrant after an investigation or to have interviewed some of the
witnesses at the scene.
However, it is far from clear that questioning Rozycki or
Rozycki’s family members would have resulted in information negating probable cause –
such questioning merely would have created a factual dispute about whether Rozycki
threatened the neighbor, which would not necessarily have been enough to defeat
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arguable probable cause given the totality of the circumstances. Cf. Baptiste v. J.C.
Penney Co., 147 F.3d 1252, 1259 (8th Cir. 1998) (explaining that officers “may weigh the
credibility of witnesses in making a probable cause determination,” and in situations
unlike this one, where there are available and undisputed facts defeating probable
cause, officers may not ignore those facts). Smith and Martin also did not “ignore
plainly exculpatory evidence that negated” probable cause, Kuehl, 173 F.3d at 651, as the
record does not suggest any such evidence existed. Thus, even if they had done a bit
more questioning before making the arrest, “[i]t would have taken more than a minimal
further investigation to sort out the [potential] inconsistencies surrounding” Rozycki’s
alleged threat. Amrine, 522 F.3d at 833 (citations omitted).
Given the totality of the circumstances in this case, Smith and Martin’s failure to
conduct additional investigation after Smith asked Rozycki to talk, standing alone, does
not outweigh the numerous other circumstances giving rise to arguable probable cause.
Therefore, Smith and Martin are entitled to qualified immunity on the claim that they
arrested Rozycki without probable cause.
Warrantless Entry and Warrantless Home Arrest
The Fourth Amendment protects the home and its curtilage from unreasonable
searches and seizures. U.S. Const., amend. IV. “‘Curtilage’ means the area to which
extends the intimate activity associated with the sanctity of [one’s] home and the
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privacies of life.”
United States v. Robbins, 682 F.3d 1111, 1115 (8th Cir. 2012)
[C]urtilage questions should be resolved with particular reference to four
factors: [(1)] the proximity of the area claimed to be curtilage to the home,
[(2)] whether the area is included within an enclosure surrounding the
home, [(3)] the nature of the uses to which the area is put, and [(4)] the
steps taken by the resident to protect the area from observation by people
United States v. Dunn, 480 U.S. 294, 301 (1987); see also United States v. Wells, 648
F.3d 671, 677 (8th Cir. 2011) (applying four Dunn factors to determine that unpaved
driveway past rear of a defendant’s home and into his backyard was part of the home’s
It is clearly established that warrantless entry into the home or curtilage is
presumptively unreasonable absent consent. Kentucky v. King, 563 U.S. 452, 460 (2011).
Courts have found implied consent (also referred to as an implied license) to enter
curtilage pursuant to the “knock and talk” rule: “no Fourth Amendment search occurs
when police officers who enter private property restrict their movements to those areas
generally made accessible to visitors – such as driveways, walkways, or similar
passageways,” for the purpose of making their presence known, making inquiries, or
requesting consent to search. Wells, 648 F.3d at 679 (quoting United States v. Reed, 733
F.2d 492, 501 (8th Cir. 1984)); see also Florida v. Jardines, 133 S. Ct. 1409, 1415-17
(2013). Such curtilage entry based on an implied license is only permissible when
accompanied by a “legitimate law enforcement objective,” United States v. Weston, 443
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F.3d 661, 671 (8th Cir. 2006), that is “unconnected with a search directed against the
accused,” United States v. Anderson, 552 F.2d 1296, 1299-1300 (8th Cir. 1977). See also
Robbins, 682 F.3d at 1115-16 (collecting cases). The classic application of the knock and
talk rule occurs when, for example, police enter a property through an unlocked gate and
proceed up the driveway to the front door to request consent to search inside a home.
See, e.g., Nikolas v. City of Omaha, 605 F.3d 539, 545-46 (8th Cir. 2010).
Even when there is no implied consent to enter, warrantless entry into the home or
curtilage may also be justified if there are exigent circumstances.
United States v.
Cisneros-Gutierrez, 598 F.3d 997, 1004 (8th Cir. 2010) (citing Payton v. New York, 445
U.S. 573, 590 (1980)); United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996). “Hot
pursuit of a fleeing suspect” is one such exigent circumstance, provided that there is also
probable cause. United States v. Anderson, 688 F.3d 339, 344 (8th Cir. 2012) (quoting
King, 563 U.S. at 460); Wells, 648 F.3d at 678-79. To determine whether the hot pursuit
exception applies, courts consider: “(1) the gravity of the underlying offense, and
(2) whether the government can demonstrate an ‘immediate or continuous’ pursuit of the
suspect from the scene of the crime.” Anderson, 688 F.3d at 344 (citing Welsh v.
Wisconsin, 466 U.S. 740, 753 (1984)). Even if a serious offense is at issue, arresting
officers must also satisfy the second prong in order for this exception to apply. Id.
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Home or Curtilage
Smith and Martin are entitled to qualified immunity on Rozycki’s claims of
warrantless entry and home arrest unless at the time Rozycki’s garage was part of the
constitutionally-protected curtilage, 12 and this constitutional protection was clearly
established at the time; the Court answers both questions in the affirmative. As the
Supreme Court has explained, “for most homes, the boundaries of the curtilage will be
clearly marked; and the conception defining the curtilage – as the area around the home
to which the activity of home life extends – is a familiar one easily understood from our
daily experience.” Oliver v. United States, 466 U.S. 170, 182 n.12 (1984). Applying the
four Dunn factors, it is “easily understood” that Rozycki’s garage is part of the
The first two Dunn factors weigh very heavily in favor of finding that the garage
was curtilage. Unlike the barn in Dunn, which was located approximately sixty yards
from the residence, Rozycki’s garage is attached to his house. See Dunn, 480 U.S. at
302. Typically, the Dunn factors are used to assess distant or ambiguous areas. Id. at
301; see also United States v. Burston, 806 F.3d 1123, 1127 (8th Cir. 2015);
Daughenbaugh v. City of Tiffin, 150 F.3d 594, 598-99 (6th Cir. 1998). Here, there is no
The Court need not decide if the attached garage was part of the home rather than the
curtilage, because, as explained herein, even if the garage was just part of the curtilage, Smith’s
and Martin’s conduct does not fall within the “knock and talk” rule.
Because the Court holds that unlawful warrantless entry occurred at the moment that
Smith and Martin stepped into the garage, there is no need to analyze whether Smith’s body
crossing the home’s threshold during the tackle was excusable because it was “de minimis.”
- 24 -
open field or unattached structure situated many yards from the home. Instead, the
garage is a structure so connected to the home that the two share a wall and there is an
internal door that leads from the garage to the house. 14 Rozycki’s garage is in incredibly
close proximity to the home, and it is within an enclosure surrounding the home – the
The third factor also weighs heavily in favor of a finding that the garage was
curtilage. This factor has to do with whether a space is “used for intimate activities of the
home.” Dunn, 480 U.S. at 302. The presence of personal items alone is sufficient to
indicate domestic use. Wells, 648 F.3d at 677 (holding that a “child's wagon and sled, a
boat, a lawnmower, a rabbit hutch, and a burn barrel” indicated domestic use).
Here, Rozycki was entertaining family members and other guests in the garage.
When Smith and Martin arrived at the home, they were witnessing not just evidence of
domestic use, but domestic use itself. Defendants ask this Court to hold that officers may
interpret a visible party in a home’s curtilage as an invitation to join; 15 to the contrary, the
fact that the garage was, at the time, put to a domestic use is evidence that the garage is
See also Nikolas, 605 F.3d at 546 (holding that a garage located “some thirty to fortyfive feet away” from the residence was not curtilage); United States v. Boyster, 436 F.3d 986,
991 (8th Cir. 2006) (holding that an aerially-surveilled field “located over 100 yards from the
residence” was not curtilage); United States v. Anderson, 552 F.2d 1296, 1300 (8th Cir. 1977)
(holding, before Dunn, that “[t]he private property immediately adjacent to a home is entitled to
the same protection against unreasonable search and seizure as the home itself”).
At oral argument, Defendants’ counsel conceded that, as a general rule, “in most cases,
[officers] can’t go into the garage” just because the door is open; he argued that the existence of
the party was the key reason why that general rule should not control in this case.
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part of the home’s curtilage. Additionally, when courts have found that an area does not
satisfy the third prong it is often because the area in question was used for an illegal, as
opposed to domestic, purpose; 16 there is no allegation of such use here. A visible party in
an attached garage is domestic use.
Pursuant to the fourth Dunn factor, Defendants argue that because Rozycki’s
garage door was open, there was no reasonable expectation of privacy. 17
See, e.g., United States v. Mathias, 721 F.3d 952, 956 (8th Cir. 2013); United States v.
Mooring, 137 F.3d 595, 597 (8th Cir. 1998); see also Daughenbaugh, 150 F.3d at 599 (“The
Supreme Court in Dunn placed significant weight on the officer’s possession of ‘objective data’
that the barn in question as used to manufacture drugs.” (citing Dunn, 480 U.S. at 302-03)).
Instead of analyzing the open garage door within the context of the Dunn curtilage
inquiry, Defendants posit that, as a stand-alone Fourth Amendment principle, “[w]hat a person
knowingly exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection.” California v. Ciraolo, 476 U.S. 207, 213 (1986). Defendants confuse
the question of whether an area is part of the curtilage – determined by applying the Dunn factors
– with the principle that evidence and information in officers’ plain view may give rise to
[Rozycki] would have no cause to complain had the officers . . . observed him
openly cooking methamphetamine [in the open garage], just as he would have no
cause to complain had the officers observed the same through an open window in
his home. ‘The Fourth Amendment protection of the home has never been
extended to require law enforcement officers to shield their eyes when passing by
a home on public thoroughfares.’
But an officer’s ability to observe through open windows [or open door]
what happens inside the home does not altogether extinguish the homeowner’s
otherwise reasonable expectation of privacy in the home itself. Not even
probable cause, absent an exigent circumstance, would permit an officer to
enter that home without a warrant to make an arrest or seize contraband. . . .
That a homeowner exposes some portion of his dwelling to public view is not a
license for officers to treat it as a public space.
Similarly, . . . a homeowner may expose portions of the curtilage of his
home to public view while still maintaining some expectation of privacy in those
(Footnote continued on next page.)
- 26 -
when the area in question is a completely open field and the defendant makes no “efforts
to protect the area from observation by passersby,” then the area is not curtilage. United
States v. Mathias, 721 F.3d 952, 956 (8th Cir. 2013); see also United States v. Boyster,
436 F.3d 986, 991 (8th Cir. 2006). However, the Eighth Circuit has found that a single
bush was sufficient to indicate an effort to maintain privacy. Burston, 806 F.3d at 1127.
Like the bush in Burston, a car was parked in Rozycki’s driveway in front of the open
garage. Additionally, unlike a completely open field, a garage has solid walls and is a
structure usually associated with some degree of privacy. Lastly, in many cases, while a
closed and locked garage or barn door is evidence of attempts to keep a space private
when the building is not in use; 19 it makes perfect sense for the door of a private, attached
garage to be open while the resident is using it, as was the case here.
Wells, 648 F.3d at 678 (quoting Ciraolo, 476 U.S. at 213) (emphasis added). United States v.
Contreras, which Defendants cite extensively, is consistent with Wells because the garage entry
in that case was justified by exigency not present in Rozycki’s case – the potential for destruction
of evidence before police could obtain a warrant. 820 F.3d 255, 262 (7th Cir. 2016).
Defendants cite a number of Minnesota cases for the proposition that Rozycki had no
reasonable expectation of privacy in his attached garage since the overhead door was open, and
therefore, the garage was not part of the constitutionally-protected home or curtilage. This Court
does not find Defendants’ application of this non-binding precedent at all persuasive. In those
cases, unlike in Rozycki’s case, “knock and talk” and/or hot pursuit issues were genuinely at
play, and the courts were not applying the Dunn factors applicable in federal courts. See State v.
Latt, No. A06-528, 2007 WL 583222 (Minn. Ct. App. Feb. 27, 2007); State v. Akins, No. C4-991066, 2000 WL 271986 (Minn. Ct. App. Mar. 14, 2000); Tracht v. Commissioner of Public
Safety, 692 N.W.2d 863, 865 (Minn. Ct. App. 1999).
See, e.g., United States v. Gerard, 362 F.3d 484, 488 (8th Cir. 2004) (noting that one
factor weighing in favor of a finding that the detached garage was curtilage was the fact that the
resident “attempted to prevent public access to his garage by placing locks on all three of the
doors to the garage”).
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Additionally, the Eighth Circuit is “hesitant . . . to give [the fourth] factor
controlling weight.” Wells, 648 F.3d at 678. For example, in Jardines, the Supreme
Court found that “[t]he front porch is the classic exemplar of an area adjacent to the
home” that was part of the curtilage even though the front porch was fully visible to the
public. 133 S. Ct. at 1413-15; see also United States v. Hopkins, 824 F.3d 726, 732
(8th Cir. 2016) (analyzing Jardines). Taking Defendants’ argument that the garage was
not curtilage to its logical conclusion, the mere fact that the door of an attached garage
might be open could justify law enforcement’s entry and search of the garage’s contents,
even when the other three Dunn factors weigh heavily in favor of finding that the garage
was part of the home’s curtilage. However, just as an open door into a dwelling does not
extinguish a resident’s right to be free from warrantless searches and seizures in the
dwelling, an open door to a garage that is otherwise clearly curtilage cannot give officers
free reign to treat the garage as a public space. Wells, 648 F.3d at 678. Defendants also
cite to cases that apply the “knock and talk” exception to justify officer entry into an
attached garage; these cases necessarily imply that such garages are routinely considered
curtilage, since the “knock and talk” exception is only applicable to curtilage. 20
See, e.g., Coffin v. Brandau, 642 F.3d 999, 1012-13 (11th Cir. 2011) (finding a Fourth
Amendment violation when officers entered a resident’s open, attached garage, given that the
resident “attempted to exercise her Fourth Amendment rights” by telling officers to leave her
property and trying to close the garage door, but also suggesting that if there had been no such
attempt to maintain privacy, the open garage may have constituted an implied invitation to
approach the interior door under the “knock and talk” rule); Tracht, 592 N.W.2d at 865 (“The
officers entered the [open] garage for the purpose of knocking on the service door and were not
looking for evidence in the garage. Under these circumstances we conclude that there is no basis
(Footnote continued on next page.)
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It has long been established that the Fourth Amendment protects against
warrantless searches and seizures in the home or curtilage, subject to the few exceptions
discussed below. See Dunn, 480 U.S. at 300-01; Payton, 445 U.S. at 589-90; see also
Mikkalson v. City of S. St. Paul, No. 14-4208, 2016 WL 4186935, at *11 (D. Minn.
Aug. 8, 2016). Based on application of the Dunn factors to this case, a reasonable officer
would have known that Rozycki’s garage was curtilage.
Knock and Talk
Because the Court finds that the garage was curtilage, the Court must next decide
whether any exception applies that would allow for curtilage entry without a warrant.
First, the Court considers whether the officers had implied consent to enter the garage
under the “knock and talk” rule. “[H]omeowners grant members of the visiting public –
mail carriers, sanitation workers, neighbors, and Girl Scouts, to name a few – an implied
consent to enter these areas for those purposes that accompany the normal interactions of
a social, civilized society.” Wells, 648 F.3d at 679. Even if a member of the public
might have assumed that the open garage door amounted to implied consent to enter the
garage for limited purposes – an assumption that this Court does not necessarily endorse
on these facts – there is no dispute that Smith and Martin entered the garage for the
express purpose of arresting Rozycki, rather than for the acceptable purposes of knock
for distinguishing the officers’ entry into the garage from entering a porch to knock on a door to
- 29 -
and talk – to make their presence known, make inquiries, or request consent to search.
They had no purpose in entering the garage apart from effectuating a seizure that
otherwise would require a warrant. See Jardines, 133 S. Ct. at 1416. The lack of implied
license is further evident from the fact that Rozycki explicitly told Smith and Martin not
to enter the garage before they entered. Thus, the knock and talk rule does not save from
constitutional attack Smith and Martin’s warrantless entry into the curtilage.
The contours of the implied license available to officers under the knock and talk
rule were clearly established at the time. Whether Smith and Martin’s conduct was an
objectively reasonable seizure “depends upon whether [they] had an implied license to
enter the [garage], which in turn depends on the purpose for which they entered. Here,
their behavior objectively reveals a purpose to conduct a [seizure], which is not what
anyone would think [they] had license to do.” Jardines, 133 S. Ct. at 1416-17. It is clear
on these facts that no reasonable officer would have believed this curtilage entry was
warranted based on implied consent.
Second, the Court considers whether a second possible exception to the warrant
requirement applies: the hot pursuit exception. Viewing the facts in the light most
favorable to Rozycki, the Court finds that Smith and Martin’s warrantless entry into the
garage was not justified by the exigent circumstance of hot pursuit, 21 and a reasonable
The only exigent circumstance that Defendants briefed is hot pursuit. Smith
additionally stated in an interrogatory that he “subdued [Rozycki] in order to make the arrest and
(Footnote continued on next page.)
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officer would have understood this to be the case. To state the obvious, “the claim of hot
pursuit is unconvincing because there was no immediate or continuous pursuit of
[Rozycki] from the scene of a crime.” Welsh, 466 U.S. at 753.
Defendants urge that United States v. Santana, 427 U.S. 38 (1976), muddles the
question of whether the hot pursuit exception applies, such that this court is bound to find
Smith and Martin are entitled to qualified immunity on their warrantless curtilage entry.
In Santana, officers who had probable cause initiated pursuit of a suspect, with the
obvious purpose of arresting her, when she was standing directly in her doorway. 22 Id. at
40. “They pulled up to within 15 feet of Santana and got out of their van, shouting
‘police,’ and displaying their identification.
As the officers approached, Santana
retreated into the vestibule of her house.” Id. The officers followed Santana into her
house, without a warrant or consent, and arrested her and seized evidence in her
possession. Id. at 41. In finding that the warrantless entry and arrest did not violate the
for the safety of [his] fellow officers because [he] did not know whether [Rozycki] was
attempting to acquire a weapon in his garage or from his residence.” (Irlbeck Aff., Ex. 3 at 5.)
Smith’s deposition testimony, on the other hand, calls into question the genuineness and
reasonableness of Smith’s stated fear, since he had experience with Rozycki yet he had never
responded to a weapons-related call at Rozycki’s house. (Smith Dep. at 50:8-19.) At oral
argument, Defendants’ counsel clarified that Smith and Martin do not claim that they were
worried that Rozycki was headed into his home to grab a weapon. Thus, while “a legitimate
concern for the safety of [officers] or others” can be an exigent circumstance justifying
warrantless arrest in a home, viewing the facts in the light most favorable to Rozycki, there was
no such legitimate concern in this case, and furthermore, Defendants have not argued that there
was such an exigency in this case. See United States v. Meidel, 764 F.3d 844, 847 (8th Cir. 2014)
(quoting United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003)).
At the time the officers first initiated the arrest efforts, the suspect in Santana was
standing “directly” in the doorway, such that “one step forward would have put her outside [and]
one step backward would have put her in the vestibule of her residence.” 427 U.S. at 40 n.1.
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Fourth Amendment, the Court held that when Santana was standing “directly in the
doorway,” she was in a public space, such that “her act of retreating into her house could
[not] thwart an otherwise proper arrest.” Id. at 42. The Court found that although the
pursuit was brief, “end[ing] almost as soon as it began,” that “did not render it any the
less a ‘hot pursuit’ sufficient to justify the warrantless entry.” Id. at 43.
In Mitchell v. Shearrer, the Eighth Circuit considered Santana and concluded that
in cases where an individual is standing in his doorway, “it would be unwise to become
preoccupied with the exact location of the individual in relation to the doorway. Instead,
the crucial issues [in Santana] involved the individual’s reasonable expectation of
privacy and whether that individual came to the doorway voluntarily.” 729 F.3d 1070,
1075 (8th Cir. 2013). Defendants contend that at the time Smith and Martin initiated the
arrest, Rozycki was voluntarily in a public place, so his later attempt to “retreat” into his
garage, and eventually into his home, cannot defeat the valid warrantless arrest in a
Santana and Mitchell do not control this case because the Supreme Court has
drawn a “firm line” at the entrance to a house. Payton, 445 U.S. at 590. Where curtilage
also has a threshold, as is the case for a garage, the constitutional line can be no less
firm. 23 Cf. Oliver, 466 U.S. at 180 (explaining that historically, curtilage “has been
considered part of home itself for Fourth Amendment purposes”). While the suspect in
The parties did not brief the question of whether the curtilage of Rozycki’s house
extends beyond the threshold of the garage. In deciding that the garage is clearly curtilage in this
case, the Court does not decide whether some area beyond the garage’s threshold was curtilage.
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Santana was in a public place when the officers began the arrest, viewing the facts in the
light most favorable to Rozycki we must conclude that Rozycki was not “directly in the
[garage] doorway,” but rather fully inside the garage, at the moment that Smith initiated
his arrest. See United States v. Greer, 607 F.3d 559, 563 (8th Cir. 2010) (distinguishing a
Santana situation, when a suspect is “standing in the doorway,” from a Payton, situation
in which an officer sees a suspect through an open door and unconstitutionally crosses the
threshold to arrest him). Applying the test set out in Welsh v. Wisconsin, it is obvious
that the hot pursuit exception is inapposite, since Smith and Rozycki did not engage in
“immediate or continuous pursuit” of Rozycki that began when he was in a public
Furthermore, there were at least three officers on the scene at the time and
additional backup was on the way. Even if Smith and Martin were worried about truly
losing track of a fleeing suspect, the circumstances still would not justify the warrantless
entry in this case. “[T]he officers knew [Rozycki] was in the house, and had enough
personnel to cover the house and prevent his escape while a warrant was obtained.”
Guite v. Wright, 147 F.3d 747, 750 (8th Cir. 1998).
The hot pursuit exception does not justify Smith and Martin’s warrantless entry
into Rozycki’s curtilage; a reasonable officer could not have concluded otherwise on
Other hot pursuit cases also involve pursuits beginning when the suspect was in public.
E.g., United States v. Schmidt, 403 F.3d 1009, 1011-12 (8th Cir. 2005); Anderson, 688 F.3d at
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these facts. Therefore, Smith and Martin are not entitled to qualified immunity on the
claim of warrantless entry.
Warrantless Home Arrest
Even if supported by probable cause, a warrantless arrest may still violate the
Fourth Amendment if it occurs inside the home after an unconstitutional warrantless
Because Smith and Martin unlawfully entered Rozycki’s constitutionally-
protected curtilage when they entered the garage, and they are not entitled to qualified
immunity on this point, they are also not entitled to qualified immunity regarding the
subsequent warrantless arrest that occurred inside the garage. The Fourth Amendment’s
“firm line” at the entrance to the house (and the curtilage entitled to the same protection
as the house) “appl[ies] equally to seizures of property and to seizures of persons.”
Payton, 445 U.S. at 590; see Guite, 147 F.3d at 750 (“It is clearly established that the
Fourth Amendment prohibits a warrantless entry into a suspect’s home to make a routine
felony arrest absent consent or exigent circumstances.” (citations omitted)).
The Fourth Amendment protects individuals against police use of excessive force.
Graham v. Connor, 490 U.S. 386, 396 (1989); Smith v. Kans. City Police Dep’t, 586 F.3d
576, 581 (8th Cir. 2009). “Not every push or shove . . . violates the Fourth Amendment,
but force is excessive when the officers’ actions are not objectively reasonable in light of
the facts and circumstances confronting them.” Rohrbough v. Hall, 586 F.3d 582, 585
(8th Cir. 2009) (internal quotation marks omitted).
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Under the Fourth Amendment, an arresting officer has the right to use some
degree of physical coercion in order to effect an arrest. Henderson v. Munn, 439 F.3d
497, 502 (8th Cir. 2006) (citing Graham, 490 U.S. at 396). To determine whether a
particular application of force was objectively reasonable, courts apply a balancing test,
weighing “the nature and quality of the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Howard v. Kan.
City Police Dep’t, 570 F.3d 984, 989 (8th Cir. 2009). The balancing test takes into
account the totality of the circumstances, with a focus on the three factors the Supreme
Court identified in Graham v. Connor: (1) the severity of the crime at issue; (2) whether
the suspect poses an immediate threat to the safety of the officer(s) or others, and
(3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
490 U.S. at 394; see also Rohrbough, 586 F.3d at 586. In evaluating reasonableness,
courts should keep in mind the circumstances as they existed at the time, rather than
relying on “the 20/20 vision of hindsight. . . . The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make split-second
judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the
amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97.
This Court must decide whether Smith and Martin are entitled to qualified
immunity on the claim that they used excessive force when they tackled Rozycki in the
garage and restrained him on the floor of the garage, as well as later when one of the
officers allegedly put Rozycki into a chokehold, took him to the ground one more time,
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and slammed his body into a parked car. 25 Viewing the facts in the light most favorable
to Rozycki, there remains a genuine issue of material fact as to whether Smith and
Martin’s use of force was objectively reasonable.
First, Defendants contend that when Smith tackled Rozycki, and when Smith and
Martin subsequently restrained Rozycki, moved his body down the stairs, and turned him
over onto his stomach in order to handcuff him, all force used was objectively reasonable
under Graham and was incident to a lawful arrest.
As an initial matter, there are genuine issues of material fact as to how much force
the officers used. Defendants contend that Smith and Martin used the minimal amount of
force necessary to effectuate Rozycki’s arrest. However, based on the audio recording
(which captures Rozycki yelling in pain), the fact that Rozycki’s pants and underwear
were likely pulled down as a result of the force of the tackle, and the voluminous witness
testimony about the excessiveness of the force used, a reasonable jury could very well
conclude that Smith and Martin used excessive force (1) when Smith tackled Rozycki
and (2) when Smith and Martin subsequently moved Rozycki to the floor and restrained
Defendants argue that because “[l]iability for damages for a federal constitutional tort
is personal,” Rozycki’s excessive force claims must fail as a matter of law for failure to
individually identify the officers involved. Heartland Acad. Cmty. Church v. Waddle, 595 F.3d
798, 805-06 (8th Cir. 2010). Although Rozycki did testify that he does not remember precisely
which of the two officers committed each act, there is evidence in the record to support the
conclusion that Smith tackled Rozycki, Smith and Martin together restrained and handcuffed
Rozycki, and Martin put Rozycki into a chokehold and slammed him into a parked car. Thus, at
summary judgment, Defendants’ argument on this point must fail. The cases Defendants cite,
including Wilson v. Northcutt, 441 F.3d 586 (8th Cir. 2006), Zimmerman v. Bellows, 988 F. Supp.
2d 1026 (D. Minn. 2013), and Binion v. City of St. Paul, 788 F. Supp. 2d 935 (D. Minn. 2011),
involved materially distinguishable situations.
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him in the process of arresting and handcuffing him in his garage. See Smith, 586 F.3d at
581-82 (denying qualified immunity on an excessive force claim when a jury could find
that the officers’ use of force was unreasonable). There are also genuine issues of
material fact as to whether Rozycki fled or resisted. Before arresting Rozycki, Smith and
Martin issued no commands to Rozycki, so there is no evidence that he was resisting any
command. Furthermore, based on the evidence presented, it appears that Rozycki would
have had no time to comply with officer orders, had there been any orders, because Smith
announced Rozycki’s arrest and then, within a split second, ran after Rozycki and tackled
him as he was walking towards the door of his house.
With these factual disputes in mind, the Court applies the Graham factors, the first
of which is the seriousness of the alleged crime. “[F]orce is least justified against
nonviolent misdemeanants . . . . ” Brown v. City of Golden Valley, 574 F.3d 491, 499
(8th Cir. 2009). As discussed above, Smith and Martin had arguable probable cause to
arrest Rozycki based on the reported threat to his neighbor, which Smith and Martin
believed at the time constituted felony terroristic threats – a somewhat more serious
crime than the nonviolent misdemeanors that courts have found are not at all serious.
See, e.g., Brown, 574 F.3d at 496, 499; Casey v. City of Fed. Heights, 509 F.3d 1278,
1279-80 (10th Cir. 2007).
At the same time, there was no allegation that Rozycki
committed a violent act. There is also evidence that at the time, it would have been
reasonable for the officers to conclude that merely a non-serious spat between neighbors
had occurred. Thus, the first Graham factor is either neutral or weighs slightly in the
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Defendants rely on case law finding that such a takedown can be objectively
reasonable when the second or third Graham factor is present – as a response to flight,
resistance, and/or a reasonably perceived threat to officers. 26 See Greiner v. City of
Champlin, 27 F.3d 1346, 1355 (8th Cir. 1994) (“When an arrestee flees or resists, some
use of force by the police is reasonable.”) However, pursuant to the second Graham
factor, Defendants do not contend that they had any fear that Rozycki posed a danger to
the officers or anyone else at the scene, and if they did assert such a fear, it is not clear
that it would have been a reasonable fear. When Smith and Martin arrived on the scene,
Rozycki was at his home with a number of guests, it was the afternoon of a weekend
holiday, and there was no indication that anything serious was happening at that moment.
Furthermore, Rozycki was in his fifties and though the officers had had previous run-ins
with Rozycki, they had never known him to wield a weapon and there was no report of a
weapon at the scene. There is extensive witness testimony to the effect that Smith’s
tackle and Smith and Martin’s subsequent use of force to detain Rozycki were wholly
unprovoked. Defendants argue that the volatile crowd of drunken adults on the scene
required them to make “split-second” decisions, further justifying the force used on
Rozycki. But tensions were not high before the officers tackled and restrained Rozycki,
so the subsequent exchanges between the individuals in the garage and the officers
Defendants heavily cite an unreported Sixth Circuit case, Bozung v. Rawson, 439
F. App’x 513 (6th Cir. 2011). This Court does not find Bozung persuasive, and even if it did, the
facts are clearly distinguishable. For example, in Bozung there were factors influencing the
officer’s decision that are not present here, including that the driver of the vehicle the plaintiff
occupied had fled the scene and there was a warrant for the plaintiff’s arrest. Id. at 520-21.
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cannot justify the use of force against Rozycki that occurred at the very beginning of the
encounter. On this record, at summary judgment the Court assumes that Rozycki did not
pose a threat to anyone.
As for the final Graham factor, Rozycki has denied resisting arrest, and based on
the other evidence presented, this denial is plausible.
Beyond the factual disputes
regarding whether Rozycki fled or resisted arrest, as discussed above, Rozycki was also
in the curtilage to his home at the time, so he was under no obligation to speak with
Smith when Smith requested that he come outside and talk. Therefore, at summary
judgment the Court assumes Rozycki did not resist arrest. See Henderson, 439 F.3d at
To conclude, both the second and third Graham factors weigh against a finding
that the force used was reasonable, and Defendants have provided no case law to support
the notion that an alleged crime like the one at issue here, in the absence of danger, flight
or resistance, could justify Rozycki’s takedown and subsequent restraint.
Second, Defendants contest the validity of record evidence tending to show that
Smith or Martin placed Rozycki in a chokehold, forcibly took him to the ground at any
point after he was handcuffed, or slammed him against a car.
A reasonable jury,
however, could conclude, based on the overwhelming testimony in favor of Rozycki, that
such events did occur. Additionally, Defendants do not argue that if these events took
place, they would not have amounted to an unreasonable application of force, 27 nor have
At oral argument, Defendants’ counsel agreed such force would be unreasonable.
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Defendants explained what legitimate law enforcement purpose such violence could have
served. Such force would have clearly been unreasonable under Graham, since Rozycki
was already handcuffed at the time, eliminating any risk of physical danger, and a
reasonable jury could conclude that he posed no threat and was not resisting at any point
after he was handcuffed. See Henderson, 439 F.3d at 503 (“By the time [the suspect] was
handcuffed and pinned face down on the ground, a reasonably jury could decide [he] was
no longer resisting arrest, even if he had resisted arrest before being subdued.”).
At the time, “[t]he right to be free from excessive force in the context of an arrest
[wa]s clearly established.” Brown, 574 F.3d at 499. It was also clearly established that
violent removal of a homeowner from his property, even though he was not resisting
arrest, is a Fourth Amendment violation. Smith, 586 F.3d at 582 (citing Samuelson v.
City of New Ulm, 455 F.3d 871, 877 (8th Cir. 2006)). Therefore, as genuine issues of
material fact remain, Smith and Martin are not entitled to qualified immunity on
Rozycki’s claim of excessive force when they tackled and restrained Rozycki and when
they allegedly slammed him into a parked car, put him in a chokehold, and took him to
the ground again after he was arrested and securely handcuffed.
Unlawful Strip Search
The Fourth Amendment prohibits unreasonable strip searches. The reasonableness
of a strip search turns on “the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is conducted.” Bell
v. Wolfish, 441 U.S. 520, 559 (1979); see also Richmond v. City of Brooklyn Ctr., 490
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F.3d 1002, 1006-08 (8th Cir. 2007); Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir.
While Rozycki’s loss of his pants for a period of time was unfortunate, Rozycki
has failed to demonstrate that this event rises to the level of a constitutional violation. 28
The parties have not provided, and this Court has not found, case law suggesting that
pants falling or being pulled down, incident to a police tackle unaccompanied by any
attempt to conduct a search, amounts to an unlawful strip search in violation of the
Fourth Amendment. Even if there were a colorable argument that an unlawful strip
search occurred, the notion that such conduct might constitute a Fourth Amendment
violation was not clearly established at the time. Therefore, Smith and Martin are entitled
to qualified immunity on Rozycki’s unlawful strip search claim.
City of Champlin
A municipality cannot be held vicariously liable for the actions of its police
officers under § 1983, but it may be held directly liable for constitutional violations based
on a failure to train. Connick v. Thompson, 563 U.S. 51, 60-61 (2011) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691-92 (1987)). To succeed on a failure-to-train
claim, the plaintiff must show that the municipality’s failure to train amounts to
“deliberate indifference to the rights of persons with whom the untrained [officers] come
into contact.” Id. at 61 (quoting Canton v. Harris, 489 U.S. 378, 388 (1989)). A
At oral argument, Rozycki’s counsel conceded that the unlawful strip search claim
“should be trimmed away” because “it isn’t the classic strip search in a jail or out in the field
that’s very tightly controlled by case law.”
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municipality may also be held liable under § 1983 for an illegal policy or custom. To
succeed on such a claim, the plaintiff must show that “municipal policy or custom is the
moving force behind a constitutional violation.” Wedemeier v. City of Ballwin, 931 F.2d
24, 26 (8th Cir. 1991).
Rozycki has failed to allege a failure to train or illegal policy or custom.
Therefore, the Court must grant summary judgment in favor of the City of Champlin on
all of Rozycki’s § 1983 claims.
STATE LAW CLAIMS
Under Minnesota’s doctrine of official immunity, “a public official charged by law
with duties which call for the exercise of his judgment or discretion is not personally
liable to an individual for damages unless he is guilty of a willful or malicious wrong.”
Elwood v. Rice Cty., 423 N.W.2d 671, 677 (Minn. 1988) (quoting Susla v. State, 247
N.W.2d 907, 912 (1976)). To determine whether official immunity is available, the
Court performs a two-step inquiry, asking: (1) whether the alleged acts are discretionary
or ministerial; and (2) if the acts were discretionary, whether they were malicious or
willful. Id. A defendant is “entitled to summary judgment on the basis of official
immunity if there are no genuine issues of material fact tending to show” that the
defendant’s discretionary acts were malicious or willful. State by Beaulieu v. City of
Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).
In this case, the parties do not dispute that Smith’s and Martin’s acts were
discretionary. Application of official immunity instead turns on whether Smith’s and
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Martin’s acts were malicious and willful. In the context of official immunity, malicious
and willful are synonyms and mean “the intentional doing of a wrongful act without
legal justification or excuse.” Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quoting
Carnes v. St. Paul Union Stockyards Co., 205 N.W. 630, 631 (Minn. 1925)). Put
another way, an act is malicious and willful if it is intentional and the “official has
reason to believe [it] is legally prohibited.” Kelly v. City of Minneapolis, 598 N.W.2d
657, 663 (Minn. 1999).
Battery is defined as “an intentional unpermitted offensive contact with another.”
Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn. 1980). Furthermore, “[a]
peace officer making an arrest may not subject the person arrested to any more restraint
than is necessary for the arrest and detention.” Minn. Stat. § 629.32 (2016). “[I]f the
officers in this case used excessive force, their touching of plaintiff would be unpermitted
and thus constitute a battery.” Paradise, 297 N.W.2d at 155.
As discussed above, there remains a genuine issue of material fact as to whether
Smith and Martin used unreasonable force against Rozycki when Smith tackled him,
Martin allegedly put him into a chokehold, tackled him, and slammed him into a car, and
Smith and Martin together physically restrained him. If Smith and Martin used excessive
force, then they had reason to know that their conduct was legally prohibited. Therefore,
they are not entitled to official immunity on Rozycki’s battery claim. Furthermore, the
facts viewed in the light most favorable to Rozycki indicate that Smith and Martin did
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engage in intentional, unpermitted offensive contact with Rozycki because they used
excessive force; thus Smith and Martin are not entitled to summary judgment on
Rozycki’s battery claim.
Additionally, because Smith and Martin are not entitled to official immunity on
Rozycki’s battery claim, the City of Champlin is not entitled to vicarious official
immunity on the claim, Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316-17
(Minn. 1998), and the City is not entitled to summary judgment on the battery claim,
Minn. Stat. § 466.02 (2016).
Invasion of Privacy
Any allegation that Smith or Martin pulled down Rozycki’s pants and underwear
willfully or maliciously is not supported by the record. In his briefing, Rozycki appears
to have abandoned this claim. Additionally, there was no “strip search” amounting to a
Fourth Amendment violation, as discussed above. Because there is little evidence that
Smith and Martin acted willfully or maliciously, they are entitled to official immunity on
Rozycki’s invasion of privacy claim, and by extension, the City of Champlin is entitled to
vicarious official immunity on this claim. Wiederholt, 581 N.W.2d at 316-17.
This case will be placed on the Court calendar’s next available trial date.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion for Summary Judgment [Docket No.
11] is GRANTED in part and DENIED in part, as follows:
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Defendants’ motion with respect to Rozycki’s § 1983 excessive force claim
against Smith and Martin, as alleged in Count 1 of the Complaint, is DENIED.
Defendants’ motion with respect to Rozycki’s § 1983 claim alleging
warrantless home entry and unlawful arrest by Smith and Martin, as alleged in Count 3 of
the Complaint, except for the allegation that Smith and Martin arrested Rozycki without
probable cause, is DENIED.
Defendants’ motion with respect to Rozycki’s claim of battery against all
Defendants is DENIED.
Defendants’ motion in all other respects is GRANTED.
DATED: December 30, 2016
at Minneapolis, Minnesota.
JOHN R. TUNHEIM
United States District Court
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