Date: 08-24-2018

Case Style:

Case Number: 17-2074

Judge: Shepherd

Court: United States District Court for the District of Minnesota (Hennepin County)

Plaintiff's Attorney: Peter Nickitas

Defendant's Attorney: Brian Scott Carter and Lindsey E. Middlecamp

Description: Fearing for her safety, Catrina Johnson called the police. One of the officersresponding to the scene believed that Johnson kicked him. She had not, but Johnsonwas arrested based on that officer’s belief. Charges against Johnson were eventuallydropped and the officer now admits that Johnson did not kick him. Johnson sued the
officer and the City of Minneapolis. The district court1 held that the arrest violatedJohnson’s clearly established constitutional rights. In addition, it held that Johnson’sstate-law claims stemming from the arrest could proceed to trial. We agree andaffirm.
I.
When a denial of immunity is appealed, “[o]ur jurisdiction extends only toabstract issues of law.” Thompson v. City of Monticello, No. 16-4080, 2018 WL3322315, at *2 (8th Cir. July 6, 2018) (internal quotation marks omitted); see alsoDiv. of Empl’t Sec. v. Bd. of Police Comm’rs, 864 F.3d 974, 978 (8th Cir. 2017)(state-law immunity appeal “limited to issues of law”). “Thus, we must accept thesummary judgment facts as described by the district court because evidentiarydeterminations are not presently appealable.” Craighead v. Lee, 399 F.3d 954, 960(8th Cir. 2005).2
With these principles in mind, we turn to the facts of this case.
A.
Johnson called 911 in July 2013 because her 17-year old son, Jareese, wasacting violently. Two officers—Officers Buck and Heiple—responded to the call. Prior to the officers arriving, a neighbor, Mark Moriarty, entered Johnson’s apartmentafter hearing a dispute. (Moriarty was present throughout the course of events,
1The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota.
2We are, however, not bound by facts found by the district court which are
“blatantly contradicted by the record.” Burnikel v. Fong, 886 F.3d 706, 709 (8th Cir.
2018) (internal quotation marks omitted).
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according to the district court.) When officers arrived, Johnson let them into herapartment building. She was clutching a hammer as a means of protecting herselffrom Jareese. She accompanied the officers down the hallway to her apartment,which is where the officers first encountered Jareese. The officers then proceeded toquestion Jareese and Johnson separately. During this time, Johnson informed OfficerBuck (who was questioning her) that “Jareese threatened [her] and [she] wantedJareese removed from the home.”
Officer Buck then moved to arrest Jareese, who was located just outside ofJohnson’s apartment in the hallway. Jareese resisted, so Officer Buck and OfficerHeiple engaged in a take down of Jareese. When Jareese was brought to the floor,Officer Heiple was facing away from the Johnson’s apartment while Officer Buckwas facing towards it. And, as the district court recounts, “Johnson had retreatedfurther into her apartment to give the [o]fficers room.”
According to the district court, “[a]fter the ‘take down,’ Officer Heiple felt asharp pain like an ‘explosion’ in his right calf.” He checked with Officer Buck toensure that Jareese was “handcuffed and secured” before turning around and askingJohnson if she had kicked him. She said no. Officer Heiple again asked the question,and, again, Johnson said no. But this was to no avail. Although Officer Heiple hadnot seen Johnson kick him—nor had he seen if she was in a position to even reachhim, given that she had fallen back into the apartment—he assumed she had. AndOfficer Heiple arrested Johnson immediately after her second denial that she hadkicked him.
One eyewitness was present during the takedown of Jareese. That eyewitness,Moriarty, confronted Officer Heiple after he arrested Johnson. Moriarty askedOfficer Heiple twice if he was sure Johnson had kicked him, telling him “[i]t doesn’tseem to make sense that she could have.” D. Ct. Op. at 5 (internal quotation marksomitted). Officer Heiple said he was sure because “[i]t”—meaning his calf—“hurts.” -3-
Id. (internal quotation marks omitted). Part of Moriarty’s disbelief stemmed from therelative positions of Johnson and Officer Heiple. In his view, Johnson “would havehad to give some powerful kind of soccer kick . . . around [Officer Heiple] to kick hisother side.” Id. (first alteration in the original). His disbelief was also fueled by thefact that Johnson could not inflict pain on the level Officer Heiple felt because“Johnson’s shoes were” something akin to “‘soft slipper[s].’” Id. (alteration inoriginal). Officer Buck, who was facing Johnson at the time of Jareese’s takedown,later testified that he never saw Johnson kick Officer Heiple because he was “focusedon placing Jareese in handcuffs.”
Both Officer Heiple and Johnson were hospitalized after the arrest. OfficerHeiple later learned he had a “rupture or sprain of his gastrocnemius muscle” whichcaused his pain. He now concedes Johnson did not kick him. Johnson spent fourhours in the emergency room and then three days in jail before being released. Herarrest and subsequent imprisonment were the basis for an eight-count district courtcomplaint against the City of Minneapolis and Officer Heiple in his individualcapacity. At issue on this appeal are Counts IV through VIII of that complaint. Count IV alleges, under 42 U.S.C. § 1983, unreasonable seizure in violation of theFourth and Fourteenth Amendments. Counts V and VII allege Minnesota state-lawclaims for false arrest and false imprisonment against Officer Heiple, while CountsVI and VIII lodge parallel claims against Minneapolis.
Officer Heiple and Minneapolis (“appellees”) moved for partial summaryjudgment on Counts IV through VIII before the district court. The district courtdenied the motion in full. Specifically, the district court declined to dismiss CountIV on the basis of qualified immunity and denied dismissal of Count V-VIII becauseof official immunity—a Minnesota state immunity doctrine.
Minneapolis and Office Heiple now appeal.
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II.
We first turn to the question of qualified immunity. We review de novo “(1)whether . . . the conduct of [Officer Heiple] violated a constitutional right, and (2)whether that constitutional right was clearly established at the time of the incidentsuch that a reasonable officer would have known his or her actions were unlawful.” Neal v. Ficcadenti, No. 17-2633, 2018 WL 3397636, at *3 (8th Cir. July 12, 2018).
A.
The Fourth Amendment protects “against unreasonable searches and seizures.” U.S. Const. amend. IV. Traditionally, then, “the government [is] prohibited fromsearch and seizure absent appearing before a magistrate and, under oath, providingevidence of the suspected offense and particularly describing the . . . persons or thingsto be seized.” Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L.Rev. 1181, 1185 (2016). But, “reflect[ing] the ancient common-law rule,”warrantless arrest is consistent with the Fourth Amendment so long as it is supportedby probable cause. United States v. Watson, 423 U.S. 411, 418 (1976). Johnsoncontends that her right to be free from unreasonable seizure was violated because shewas arrested by Officer Heiple without a warrant or probable cause.
Appellees contend otherwise. They argue that the arrest was supported byprobable cause, meaning that “the totality of the circumstances at the time of thearrest [were] sufficient to lead a reasonable person to believe that [Johnson] [had]committed . . . an offense.” Hoyland v. McMenomy, 869 F.3d 644, 652 (8th Cir.2017) (internal quotation marks omitted). And because qualified immunity “givesgovernment officials breathing room to make reasonable but mistaken judgments,”Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (per curiam) (internal quotation marksomitted), a “mistaken but objectively reasonable belief [Johnson] committed a
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criminal offense”—arguable probable cause—is enough to entitle Officer Heiple toqualified immunity, McMenomy, 869 F.3d at 652 (internal quotation marks omitted).
Officer Heiple believed that Johnson kicked him. Appellant’s Br. 6-8. Thereis no question (and Johnson does not contest) that assaulting a police officer is acrime under Minnesota law.3 Thus, our inquiry is not whether it was reasonable foran officer to believe a specific act constituted a violation of the law, cf. Walker v.City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005), or whether it was reasonablefor an officer to believe a suspect had the requisite mindset (or mens rea) for acriminal violation, cf. Galarnyk v. Fraser, 687 F.3d 1070, 1075 (8th Cir. 2012). Instead, our inquiry here is whether it was reasonable to believe that the purported act(or actus reus), a kick, happened in the first place. Framed differently, the questionis “was it objectively reasonable for [Officer Heiple] to mistakenly believe, under thetotality of the circumstances, that [Johnson]” kicked him? McMenomy, 869 F.3d at652.
We do not believe so. “Considering the totality of the circumstances,” OfficerHeiple did not make an “entirely reasonable inference” that Johnson had kicked him. District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (internal quotation marksomitted). In Wesby, the Supreme Court assessed both the scene which officersconfronted and the conduct and reactions of those individuals they encounteredbefore determining officers had probable cause. 138 S. Ct. at 586-88. We do thesame and find that there was not a “substantial chance” on these “historical facts” thatJohnson kicked Officer Heiple. Id. at 586 (internal quotation marks omitted).
We start with the scene the officers responded to. They were first let into theapartment building by Johnson. At that time, they observed Johnson’s physical
3Johnson was arrested for Obstructing Legal Process and Assault in the Fourth
Degree.
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appearance and attire—5’4”, disabled, “weighing about 140 pounds,” and wearinga “nightgown” and soft slippers. She was carrying a hammer at the time, but, as thedistrict court recounts, this was because she had been threatened by Jareese.4 Verysoon after being let in, officers moved to arrest Jareese. Officer Buck went to theapartment hallway to arrest Jareese after speaking with Johnson. Because Jareeseresisted, officers had to bring Jareese down to the floor. At the time of Jareese’s takedown, Officer Heiple’s back was to Johnson. She was still in the apartment and, infact, she had backed up farther to give officers room to maneuver. It was during thistake down that Officer Heiple felt the “explosi[ve]” pain in his calf. As the districtcourt recounts, it was a charged scene during the arrest, with Johnson in a“heightened emotional state.” At no time, however, did Johnson disobey instructionsfrom officers or get in their way. Cf. Ehlers v. City of Rapid City, 846 F.3d 1002,1010 (8th Cir. 2017) (suspect disobeyed clear instructions to step away from scenewhere family member was being arrested). More importantly though, at the timeOfficer Heiple felt pain, he only knew that Johnson was at some distance behind him. He had no direct knowledge that Johnson, at 5’4”, was within a range to even reachhim—much less within a range to deliver a blow that caused explosive pain given herstature.
Next, we consider Johnson’s “reaction to the officers.” Wesby, 138 S. Ct. at586-87. After ensuring Jareese was secure, Officer Heiple asked Johnson twice if shehad kicked him. She answered no each time, and nothing in the facts the district courtfound suggested she was evasive in her answers. Cf. id. at 587 (“[S]uspect’suntruthful and evasive answers to police questioning could support probable cause.”(internal quotation marks omitted)). Nothing, as well, indicated she engaged in“deliberately furtive actions” or “[u]nprovoked flight.” Cf. id. (internal quotation
4Underscoring this point, there are no facts the district court found suggesting
officers asked her to put the hammer down or turn it over.
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marks omitted). Yet Johnson was arrested immediately after the second time shedenied kicking Officer Heiple.5
Appellees argue it is a mistake to focus on all of the circumstances. Despitestrong evidence that Johnson would be unable to deliver a kick inflicting explosivepain, they argue that Johnson’s emotional state and her undetermined position behindOfficer Heiple constituted arguable probable cause to arrest Johnson for assaultingOfficer Heiple. To start, this approach runs counter to the Supreme Court’s directivethat probable cause should be assessed on “the whole picture.” Id. at 588 (internalquotation marks omitted); see also Florida v. Harris, 568 U.S. 237, 244 (2013)(describing probable cause as a “flexible, all-things-considered approach”). But evenif we were to cleave off appellees’ desired facts from the whole picture—in otherwords, to undertake a “divide-and-conquer analysis”—we still do not get to arguableprobable cause. Wesby, 138 S. Ct. at 588 (internal quotation marks omitted).
No doubt, the facts appellees direct our attention to raise suspicion. Butprobable cause “has come to mean more than bare suspicion.” Brinegar v. UnitedStates, 338 U.S. 160, 175 (1949). There must be “facts and circumstances within theofficer’s knowledge that are sufficient to warrant a prudent person . . . in believingin the circumstances shown, that the suspect has committed, is committing, or is aboutto commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). Here, by theappellees’ admission, the quantum of facts “within [Officer Heiple’s] knowledge,”id., were only a shade above wrong place, wrong time. As previously noted,appellees admit that Officer Heiple arrested Johnson because of generally where shewas positioned and her expression of emotion at her son’s arrest. Cf. United States
5While probable cause is “determined at the moment the arrest was made,” and
“later developed facts are irrelevant to the probable cause analysis for an arrest,”
Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010) (internal quotation
marks omitted), we note that Moriarty reiterated his disbelief twice to Officer Heiple
after the arrest to no effect as well.
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v. Evans, 851 F.3d 830, 836 (8th Cir. 2017) (suspect’s “presence near the location of[crime] . . . did not by itself incriminate him”) At their core, “[Johnson’s] actions[were] too ambiguous to raise more than a generalized suspicion of involvement incriminal activity.” Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d Cir.2013) (internal quotation marks omitted).
In the end, there is one factor which cuts decisively against arguable probablecause: Officer Heiple did not observe Johnson committing a criminal act—andnobody told him that Johnson did either. Cf. Illinois v. Gates, 462 U.S. 213, 242(1983) (“[A]n officer may rely upon information received through an informant,rather than upon his direct observations, so long as the informant’s statement isreasonably corroborated by other matters within the officer’s knowledge.” (internalquotation marks omitted)).6 Thus, this is not a case “where . . . the sole issue [was]the defendant’s mens rea” which would have turned on Officer Heiple’s ability to“make [a] credibility assessment[] on the spot.” Wesby v. District of Columbia, 816F.3d 96, 106 (D.C. Cir. 2016) (Kavanaugh, J., dissenting from denial of rehearing enbanc). “Indeed, the law is particularly tolerant with respect to the mens rea elementof a crime on a probable cause showing.” Ganek v. Leibowitz, 874 F.3d 73, 86 (2dCir. 2017).
Instead, the decisive issue here was the actus reus. And the bread and butterof arguable probable cause is some observation—either by officers personally or byan eyewitness or victim whose account is communicated to officers—of the actus
6It is well-established in this circuit that “officers are generally entitled to rely
on the veracity of information supplied by the victim of a crime.” Peterson v. City
of Plymouth, 60 F.3d 469, 474–75 (8th Cir. 1995). And we have given officers a
wide berth for reliance on other reports of crime. See, e.g., Chevallier v. Hand, 722
F.3d 1101, 1104–05 (8th Cir. 2013) (officer allowed to rely on dispatch report of a
potential crime among other things). In this case, Officer Heiple had no report or
direct knowledge of a potentially criminal act Johnson had committed.
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reus of a potential crime. A sample of our cases where we have found warrantlessarrests to be supported by a “mistaken but objectively reasonable belief,”McMenomy, 869 F.3d at 652 (internal quotation marks omitted)—arguable probablecause—bears this out:
●
Arguable probable cause existed to arrest for “intent to cause fearin another of immediate bodily harm” when officers heard suspect“yelling at [victim]” and saw suspect “standing over [victim].”Hosea v. City of St. Paul, 867 F.3d 949, 956 (8th Cir. 2017)(internal quotation marks omitted).
●
Eyewitness who described suspect and told officers that thesuspect was “yelling at people on the street, shouting racial slurs,and taking photos of the people he was targeting” suppliedofficers arguable probable cause to arrest suspect. Gilmore v.City of Minneapolis, 837 F.3d 827, 830 (8th Cir. 2016).
●
Arguable probable cause existed to arrest suspect for trespasswhere “security supervisor” of a casino informed officers thatsuspect was “barred from the property and was not cooperatingwith casino security officers.” Borgman v. Kedley, 646 F.3d 518,523 (8th Cir. 2011).
●
Officers had arguable probable cause to arrest suspect forviolation of a restraining order where they observed suspect at a“relatively small public event” with the person who suspect wasforbidden from seeing. Ulrich v. Pope Cnty., 715 F.3d 1054,1060 (8th Cir. 2013).
●
Arguable probable cause present where “two witnesses identified[suspect]” and suspect “herself made inconsistent statements.” Clayborn v. Struebing, 734 F.3d 807, 809 (8th Cir. 2013).
And perhaps more to the point, where observation—either directly or relayed to theofficer—of a criminal actus reus is absent, we have found arguable probable cause
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to be lacking. See, e.g., Small v. McCrystal, 708 F.3d 997, 1005 (8th Cir. 2013)(denying qualified immunity to officer who arrested a bar patron as the patron wasleaving the bar to which officer was called to in order to disperse a fight withoutanything more).
In sum, we find Officer Heiple lacked arguable probable cause to arrestJohnson. A review of the totality of the circumstances suggests that Officer Heiplehad reason to know that Johnson could not deliver the type of pain he felt. Indeed,he had no information suggesting she was even in a position to do so. Mostimportantly, however, the arguable probable cause undergirding the warrantless arresthere was missing a fundamental element: observation—either by Officer Heiple ora witness who relayed that information to him—of a criminal act.7
B.
The next question is whether the “unlawfulness of [Officer Heiple’s] conductwas clearly established at the time.” Wesby, 138 S. Ct. at 589 (internal quotationmarks omitted). But, we must first address whether it is proper to answer it.
1.
Appellees did not argue this question before the district court. They onlycontended that Officer Heiple had arguable probable cause to arrest Johnson. And
7We again stress our holding is tied to the “particular circumstances presented.”
Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012). As we explained in
Bernini, “[w]hat is reasonable in the context of a potential large-scale urban riot may
be different from what is reasonable in the relative calm of a tavern with a dozen
patrons.” Id. Here, there is nothing in the facts found by the district court suggesting
exigent circumstances were present: Officer Heiple confirmed that Jareese was secure
before turning to Johnson to question her.
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so the district court did not address the clearly established prong of the qualifiedimmunity test. On appeal now, however, appellees have argued that the lawprohibiting Officer Heiple’s actions was not clearly established. Johnson respondedrather than assert that the issue was waived.
Normally, “we cannot consider issues not raised in the district court.” Lee v.Driscoll, 871 F.3d 581, 584 (8th Cir. 2017) (internal quotation marks omitted). Thisrule is ironclad when it comes to reversals of the district court. Gregory by Gregoryv. Honeywell, Inc., 835 F.2d 181, 184 (8th Cir. 1987) (“It is old and well-settled lawthat issues not raised in the [district] court cannot be considered by this court as abasis for reversal.” (internal quotation marks omitted)). But, we may “affirm thedistrict court on any basis supported by the record.” Tatum v. Robinson, 858 F.3d544, 548 (8th Cir. 2017). Given that we find that consideration of the issue does notcounsel reversal of the district court, we “may resolve [it] now on full briefingwithout the potential inefficiency of a second appeal.” Driscoll, 871 F.3d at 590(Colloton, J., concurring in part and dissenting in part).
2.
In order “[t]o be clearly established, a legal principle must have a sufficientlyclear foundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. Normallythis requires us—outside of an “obvious” constitutional violation—“to identify a casewhere an officer acting under similar circumstances as Officer [Heiple] was held tohave violated the Fourth Amendment.” White v. Pauly, 137 S. Ct. 548, 552 (2017). While the case need not be “directly on point, existing precedent must place thelawfulness of the particular arrest beyond debate.” Wesby, 138 S. Ct. at 590 (internalquotation marks omitted).
Here, we have such a case. In Kuehl v. Burtis, we held that an officer who didnot witness a crime did not have arguable probable cause to arrest a suspect after
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speaking with her only for “twenty seconds” when other eyewitnesses were presentand would have exonerated her. 173 F.3d 646, 648 (8th Cir. 1999). Indeed, there arestriking parallels to this case—the only investigation undertaken by Officer Heiplewas asking Johnson twice if she had kicked him. There was one eyewitness(Moriarty) present that Officer Heiple could have easily turned to. And, as in Kuehl,Moriarty would have exonerated Johnson. Additionally, similar to Kuehl, there wereno exigent circumstances that prevented Officer Heiple from speaking with Moriartybefore the arrest.
Kuehl is a “controlling case” on these facts. Wesby, 138 S. Ct. at 591. Furthermore, a “body of relevant case law,” id. at 590 (internal quotation marksomitted), has carried forward the principle articulated by Kuehl. We have saidrepeatedly—before Officer Heiple arrested Johnson—an officer “cannot avoidminimal further investigation if it would have exonerated the suspect.” See, e.g.,Royster v. Nichols, 698 F.3d 681, 688 (8th Cir. 2012) (internal quotation marksomitted). More convincingly, however, drawing on Kuehl, we stated theparadigmatic case where arguable probable cause would not be found is where anofficer “[1] had spoken with the suspect for only twenty seconds, [2] ignoredexculpatory evidence, and [3] disregarded an eyewitness account.” Kedley, 646 F.3dat 523; see also Struebing, 734 F.3d at 810 (officers cannot “disregard plainlyexculpatory evidence” and “ignore[] the only witness to the entire altercation”(internal quotation marks omitted)). All three of those things happened in this case. Officer Heiple only asked Johnson twice if she had kicked him. He ignoredexculpatory evidence, namely her position, dress, and stature. And he disregarded Moriarty—an eyewitness in close proximity to him.
At bottom, “a reasonable officer, looking at the entire legal landscape at thetime of the arrests, could [not] have interpreted the law as permitting the arrest[]here.” Wesby, 138 S. Ct. at 593.
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III.
Finally, we consider the state-law immunity appeal.8 In Minnesota, “[o]fficialimmunity provides immunity from suit, not just from liability.” Sletten v. RamseyCnty., 675 N.W.2d 291, 299 (Minn. 2004). And because “immunity is effectively lostif [the] case is erroneously permitted to go to trial,” we have jurisdiction to review thedenial of Minnesota official immunity here. Argonaut Great Cent. Ins. Co. v. AudrainCnty. Joint Commc’ns, 781 F.3d 925, 929 (8th Cir. 2015). We review de novo. Bd.of Police Comm’rs, 864 F.3d at 978.
An arrest, under Minnesota law, is a “discretionary” act. Kelly v. City ofMinneapolis, 598 N.W.2d 657, 665 (Minn. 1999). Official immunity generallyprotects “public officials from the fear of liability that might inhibit them fromdischarging discretionary duties,” but not where the official acts with “malice.” Id.at 664. A discretionary act is committed with malice if the “official has intentionallycommitted an act that he or she had reason to believe is prohibited.” State byBeaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994). -We havesometimes tried to draw a clear distinction between federal qualified immunity andMinnesota official immunity by describing qualified immunity as an “objective”inquiry and official immunity for discretionary acts as a “subjective” one. See, e.g.,Nelson v. Cnty. of Wright, 162 F.3d 986, 991 (8th Cir. 1998). The MinnesotaSupreme Court, however, has described the malice inquiry—on which officialimmunity for discretionary acts turns—as a “principally objective” one which focuseson the “legal reasonableness of an official’s actions.” City of Mounds View, 518
8As the district court notes, appellees did not raise state-law immunity in their
motion for partial summary judgment. Instead, they asked for qualified immunity on
Counts V-VIII. The district court, however, construed their request as one for official
immunity under Minnesota state law. For the reasons stated in Section II.B.1, we
address the official immunity appeal even though it was arguably not raised in the
district court.
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N.W.2d at 571; see also Smith v. City of Brooklyn Park, 757 F.3d 765, 775 (8th Cir.2014) (per curiam) (citing City of Mounds View for official immunity standard). This is normally something “to be resolved by the jury.” Craighead, 399 F.3d at 963.
Here, Johnson alleges that she was falsely arrested and falsely imprisoned. “Under Minnesota law, if an arrest is made without proper legal authority, it is a falsearrest, and so false imprisonment.” Baribeau v. City of Minneapolis, 596 F.3d 465,481 (8th Cir. 2010) (per curiam) (internal quotation marks omitted). For warrantlessarrests, “proper legal authority,” id. (internal quotation marks omitted), is “reasonablecause” which is “synonymous” with “[t]he constitutional requirement of probablecause,” State v. Merrill, 274 N.W.2d 99, 108 (Minn. 1978) (internal quotation marksomitted). Thus, the crucial question here is: can a factfinder find that Officer Heiplehad “reason to believe,” City of Mounds View, 518 N.W.2d at 571, he arrestedJohnson without probable cause?
We believe that a factfinder could make that finding. Given the state of the lawat the time of the arrest, the fact that Officer Heiple had no knowledge of a criminalact committed by Johnson (either directly or indirectly from a witness), andexculpatory information available to him, there is evidence to suggest that OfficerHeiple had “reason to believe,” id., he lacked probable cause to arrest Johnson. Thus,the district court correctly denied official immunity on counts V and VII of Johnson’scomplaint. For the same reasons, it also correctly denied vicarious official immunityfor the City of Minneapolis on counts VI and VIII of Johnson’s complaint. SeeWiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998) (holding thatwhere “[official] was not entitled to official immunity . . . the city is not entitled tovicarious official immunity”).

Outcome: For the foregoing reasons, we affirm the district court in full.

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