Erik Hudson, et al., Appellants, vs. City of Minneapolis, et al., Respondents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1996).

 STATE OF MINNESOTA
 IN COURT OF APPEALS
 C9-98-78

Erik Hudson, et al.,
Appellants,

vs.

City of Minneapolis, et al.,
Respondents.

 Filed July 28, 1998
Affirmed
Kalitowski, Judge
Concurring in part, Dissenting in part, Randall, Judge

Hennepin County District Court
File No. 965508

Jesse Gant III, Gant Law Office, 500 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415; and

Kenneth U. Udoibok, Smith & Udoibok, P.A., 500 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 (for appellants)

Jay Heffern, Minneapolis City Attorney, Timothy S. Skarda, Peter W. Ginder, Assistant City Attorneys, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

 U N P U B L I S H E D   O P I N I O N

 KALITOWSKI, Judge

Appellants argue that because respondents acted with malice in executing a search warrant, the district court erred in applying official immunity to dismiss appellants' claims of false imprisonment, false arrest, assault, and battery. We affirm.

 D E C I S I O N

  After an informant made a controlled buy of narcotics from a woman at appellants' residence, police officers executed a search warrant that listed the home and a male person. The district court found that during the execution of the warrant: (1) appellant Francis was subjected to a limited strip search in a private bedroom; and (2) an officer put a towel over appellant Hudson's head and made a sound Hudson believed resembled the click of a gun.

Appellants were ultimately issued tickets for disorderly house but were not arrested. Appellants' claims under the human rights statute were bifurcated and a trial was held on the retaliation claims. After receiving briefs on the issue of official immunity, the district court found that official immunity applied, and dismissed appellants' remaining claims before trial.

The district court granted respondents' motion to dismiss for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e). Because the district court specifically referred to matters outside the pleadings in its order, this court reviews the district court's dismissal under a summary judgment standard. See Minn. R. Civ. P. 12.02 ("If, on a motion asserting the defense that the pleading fails to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment * * *."); Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (applying the summary judgment standard of review when the district court considered matters outside the pleadings, including an expert's deposition, when granting the motion to dismiss).

On an appeal from summary judgment, this court considers: (1) whether any genuine issues of material fact exist; and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.

 Fabio, 504 N.W.2d at 761 (citation omitted). "Summary judgment is appropriate if a party fails to make a sufficient showing to establish the existence of an essential element to its case." General Cas. Co. v. Mid-Continent Agencies, Inc., 485 N.W.2d 147, 149 (Minn. App. 1992), review denied (Minn. July 16, 1992). Specifically in an official immunity action, if the plaintiff has not raised any genuine issues of material fact tending to show the officers willfully or maliciously violated the plaintiff's rights, the officers are entitled to summary judgment. State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994).

The existence of official immunity is purely a question of law. Elwood v. Rice County, 423 N.W.2d 671, 675 (Minn. 1988). An appellate court reviews the legal question of whether discretionary immunity applies without deference to the district court. Snyder v. City of Minneapolis, 441 N.W.2d 781, 786 (Minn. 1989).

The official immunity doctrine in Minnesota provides:

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.

 Susla v. State, 311 Minn. 166, 175, 247 N.W.2d 907, 912 (1976). The purpose of official immunity is to protect public officials "from the fear of personal liability that might deter independent action and impair effective performance of their duties." Elwood, 423 N.W.2d at 678. Police officers are provided official immunity because the community should not second-guess their decisions after they have attempted conscientiously to fulfill their duties. Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992). The doctrine applies only to the discretionary acts of officials, not to ministerial acts. Elwood, 423 N.W.2d at 677. An official performs a ministerial act when the official duty is "absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts." Cook v. Trovatten, 200 Minn. 221, 224, 274 N.W. 165, 167 (1937).

Generally, the duties of police officers are considered discretionary, entitling the officers to official immunity. Elwood, 423 N.W.2d at 678. However, whether immunity exists in any particular case is controlled by the facts of that case. Id. The court is required to "focus on the nature of the particular act in question." Johnson v. Morris, 453 N.W.2d 31, 42 (Minn. 1990). We review the district court's findings of fact under a clearly erroneous standard. Minn. R. Civ. P. 52.01.

If the officer acted willfully or maliciously, the officer is not afforded immunity. Elwood, 423 N.W.2d at 679. Malice is "the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right." Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 462, 205 N.W. 630, 631 (1925).

In determining whether an official has committed a malicious wrong, we consider whether the official has intentionally committed an act that he or she had reason to believe is prohibited.

 City of Mounds View, 518 N.W.2d at 571-72. Further, the standard

contemplates less of a subjective inquiry into malice, which was traditionally favored at common law, and more of an objective inquiry into the legal reasonableness of an official's actions.

 Id. at 571. Officers do not become liable under the malice exception "merely because [the officer] intentionally commits an act that a court or a jury subsequently determines is a wrong." Rico, 472 N.W.2d at 107.

Although whether an officer acted maliciously or willfully is usually a question of fact for the jury, the question can also appropriately be resolved on summary judgment. Soucek v. Banham, 503 N.W.2d 153, 160 (Minn. App. 1993). "[T]he application of an immunity typically is a matter of law that is best resolved before the parties engage in lengthy discovery." Rehn v. Fischley, 557 N.W.2d 328, 332 (Minn. 1997).

  Appellant Francis first contends the officer acted ministerially as a matter of law. We disagree. The district court determined that because the officer was performing a search of an occupant of a home that was being searched because of suspected drug sales

[s]uch a search is not a duty that can be characterized as "absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts." See Elwood, 423 N.W.2d at 677. Performing a search of a person is precisely the type of duty that calls for the exercise of judgment or discretion that the official immunity doctrine is designed to protect. Officer Anderson's search of Ms. Francis was a discretionary act, entitled to official immunity.

We also conclude the fact that the officers conducted a search of appellant Hudson was discretionary rather than ministerial.

  Appellant Francis further contends the officers acted with malice when conducting the limited strip search thereby losing any protection of immunity. Francis argues the officer willfully violated a known right both by subjecting her to a search when she was not named on the search warrant and by the nature of the particular search at issue. We disagree. The district court concluded:

Ms. Francis has not alleged that Officer Anderson made any inappropriate comments during the search, touched Ms. Francis inappropriately, or made any obscene gestures. The only evidence Ms. Francis has introduced that Officer Anderson was acting with malice is Ms. Francis's own belief that Officer Anderson was "watch[ing] amorously" and that Officer Anderson "took drags off her cigarette in a sexual manner." These statements by Ms. Francis are insufficient to establish that Officer Anderson was acting with malice.

Our record on appeal is limited; we only have appellant Francis's deposition testimony regarding the incident. Francis's allegations and personal beliefs, without more, are insufficient as a matter of law to establish malice. Further: (1) there was no evidence presented that the search was conducted for any other purpose than to locate drugs; (2) it is undisputed that the search of Francis was conducted by a female officer in a private bedroom; and (3) there was no evidence presented that the officer touched Francis.

Although the search warrant here described a male and not a female person, the informant said he had purchased drugs at Francis's residence from a female. Appellant Hudson's deposition testimony also indicates that when he questioned the officers about why his house was being searched, an officer in plain clothes pointed at appellant Francis and responded that an officer had purchased drugs from her.

Even assuming the search of Francis exceeded the scope of the warrant, this fact alone does not establish that the officer intentionally and willfully violated a known right. See Soucek, 503 N.W.2d at 160-61 (concluding summary judgment was inappropriate because the district court properly determined respondent produced sufficient evidence to contradict the officers' version of the facts); Reuter v. City of New Hope, 449 N.W.2d 745, 751 (plaintiffs may not "rely on `bare allegations of malice' to defeat a summary judgment, but must present specific facts evidencing bad faith") (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817, 102 S. Ct. 2727, 2737 (1982)), review denied (Minn. Feb. 28, 1990).

Regarding appellant Hudson's claim that the officers acted with malice when they restrained him, we agree with the district court's conclusion:

The only evidence that Mr. Hudson has introduced to support his contention that the officers acted with malice is his own testimony that he heard a clicking sound and that an officer said he would "take [Hudson] down." Although Hudson was concerned that the clicking sound was a gun, he did not actually see what was making the sound. He has introduced no proof that any officer actually clicked a gun over his head. Assuming, for purposes of this motion, that Hudson is accurate when he states that an officer threatened to "take him down," this is not sufficient to imply malice. The officer was acting in the dangerous environment of a search for drugs and weapons. It was necessary for him to maintain control over the situation. This isolated statement, if made, does not indicate that the officer was acting with malice.

We conclude the district court did not err in determining appellants failed to present any evidence that respondents acted in a willful or malicious manner. Therefore, the district court properly granted respondents summary judgment on the basis of official immunity.

  Affirmed.

 RANDALL, Judge (concurring in part and dissenting in part).

I concur with the majority as to appellant Erik Hudson. I dissent as to appellant Cynthia Francis and conclude that her tort claims against the respondents should survive respondents' motion for summary judgment based on official immunity.

Francis argues that because respondents acted with malice in executing the search warrant, the district court erred in dismissing her claims of false imprisonment, false arrest, assault, and battery based on official immunity. Respondents claim that after an undercover police officer made a controlled buy of crack cocaine at appellants' residence, the police officers obtained a search warrant for the home, and that led to the search of Francis.

Francis claims that respondent Officer Tami Anderson committed the torts of assault, battery, false imprisonment, and false arrest upon her when Officer Anderson performed a strip search upon her. She claims that during the search of the house, Officer Anderson took her into a bedroom and "had [a]ppellant Francis repeatedly open and close her vagina and anal areas." Francis further claims that Officer Anderson stared closely at her genital area while smoking a cigarette.

If appellant Francis can show that respondents, through their law enforcement officers, willfully violated her known rights, she is allowed an attempt to show malice, and malice could strip respondents of their official immunity.

As to appellant Francis, the record is not clear (and thus not in respondents' favor) as to whether the officers reasonably thought the warrant also covered Francis, or whether not finding anything, the officers just gave her a ticket for "being there and perhaps participating in a disorderly house."

On appeal from summary judgment, evidence must be viewed in the light most favorable to the party opposing summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Viewing the evidence most favorable to appellant Francis here, I conclude summary judgment was inappropriate.

As the majority points out,

"[I]n an official immunity action, if the plaintiff has not raised any genuine issues of material fact tending to show the officers willfully or maliciously violated the plaintiff's rights, the officers are entitled to summary judgment."

(Quoting State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn. 1994)). Malice is "'the intentional doing of a wrongful act without legal justification or excuse, or * * * the willful violation of a known right.'" Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (quoting Carnes v. St. Paul Union Stockyards Co., 164 Minn. 457, 462, 205 N.W. 630, 631 (1925)).

In determining whether an official has committed a malicious wrong, we consider whether the official has intentionally committed an act that he or she had reason to believe is prohibited.

 Beaulieu, 518 N.W.2d at 571.

The record is devoid of any inference of articulable suspicion, much less probable cause, pointing directly to appellant Francis. If there is no other basis other than her mere presence in the house, I suggest a visual strip search coupled with a body cavity search, which Francis was forced to perform on herself, raises a serious fact question as to malice that should survive summary judgment.

Francis made no furtive movements at the scene, she was not in close proximity to weapons or illegal drugs in plain sight, and no pat search revealed a small amount of drugs. To put it another way, nothing justified the far more intrusive search conducted by the officer. According to the record, the warrant described only a male and, significantly, was not an "all persons" warrant. There is nothing in the record specifically to point to appellant Francis except that she was on the premises and she was a woman.

The record, to me, disclosed no articulable suspicion, no probable cause, simply no known reason for an intrusive body search. If this was supposed to be "incident to a lawful arrest," on what basis was Francis arrested? And if arrested, what crime would call for a body search right on the premises? The state points out that the search was done by a female officer rather than by a male officer. That was prudent of the state, but "same gender" does not save them from a lawsuit if their defense of official immunity has been negated by malice.

While the question of whether an officer acted maliciously or willfully can be resolved, at times, at summary judgment, it is usually a question of fact for the jury. Soucek v. Banham, 503 N.W.2d 153, 160 (Minn. App. 1993). I conclude, because fact issues remain and malice is generally a fact question for the jury, summary judgment as to appellant Francis is inappropriate.

Therefore, I would reverse the district court's dismissal as to appellant Francis' claims, and remand for trial.