This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).

UNPUBLISHED OPINION

CRIPPEN, Judge.[fn*] [fn*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

In this suit, premised on damages resulting from a police chase, we are asked to recognize the qualified or official immunity of the police authority. Because the district court properly rejected those claims on the record that existed before trial, we affirm.

FACTS

Respondent Beverly Mumm's decedent, Duane Mumm, was a pedestrian who was struck and killed in the course of a March 2002 police chase. The chase incident began when Minneapolis police were asked for assistance in transporting Geralyn Mornson, who was experiencing a mental health crisis, to her inpatient mental health treatment. Officer Lance DuPaul responded to the call. He requested the assistance of a crisis-intervention training officer, but before the officer arrived, Mornson left the scene alone, driving her husband's vehicle. DuPaul tried without success to stop the vehicle by the use of emergency vehicle lights and emergency sirens.

The chase of Mornson progressed onto I-35W and was joined by Minneapolis officers Lappegaard and Brickley (Lappegard's passenger), and state patrol troopers. Asked by Brinkley for permission to "take out" Mornson's vehicle, a city police lieutenant supervising the chase called for an effort to "get in front, try to get her to slow down that way." As the chase moved onto 60th Street, Lappegaard first tried to get in front of Mornson's vehicle but then attempted to slow Mornson's vehicle by hitting it with his police car. After being struck, Mornson's vehicle left the street, struck and killed decedent, and collided with a tree.

Respondent Mumm, who first initiated this suit, alleges, inter alia, that appellants, the city of Minneapolis and its officers, violated 42 U.S.C § 1983 by depriving Mumm's decedent of his rights to substantive due process in violation of the Fourteenth Amendment to the United States Constitution. Respondents Mornsons make similar claims. The district court subsequently denied appellants' pre-trial assertions of qualified and official immunity.

DECISION

The applicability of immunity is a question of law, which is reviewed de novo. Johnson v. State, 553 N.W.2d 40, 45 (Minn. 1996). The party asserting an immunity defense has the burden of demonstrating facts that prompt the claim. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn.App. 1998), review denied (Minn. July 16, 1998). When we review a summary judgment denying immunity, we are to presume the truth of the facts alleged by the nonmoving party. Burns v. State, 570 N.W.2d 17, 19 (Minn.App. 1997).

1. Qualified Immunity

Before examining the reasonableness of police officers' beliefs that they proceeded lawfully and are entitled to a qualified immunity, we must first examine appellants' assertion that that their conduct did not violate any established constitutional rights. Dokman v. County of Hennepin, 637 N.W.2d 286, 293 (Minn.App. 2001) (observing the threshold question of whether a violation of rights has occurred).

Respondents argue that the conduct of the officers was a violation of their Fourteenth Amendment substantive due process rights. Recent federal cases establish the standard for determining a substantive due process claim in cases involving a police chase. See County of Sacramento v. Lewis, 523 U.S. 833, 836, 118 S. Ct. 1708, 1711 (1998) (holding that police pursuits show a "cognizable level of executive abuse of power" that "shocks the conscience" when there is intent to harm unrelated to the legitimate object of arrest); Slusarchuk v. Hoff, 346 F.3d 1178, 1183 (8th Cir. 2003) (upholding qualified immunity because pursuit was aimed at apprehending suspected offender and did not objectively suggest a purpose to cause harm unrelated to the legitimate object of arrest); Helseth v. Burch, 258 F.3d 867, 871 (8th Cir. 2001) (holding that the Lewis "intent to harm" standard applies to all section 1983 substantive due process claims based upon conduct in a high-speed police chase aimed at apprehending a suspected offender).

Appellants argue that Lewis compels a finding that there is no constitutional violation in this case, and that there was no evidence of officer intent to cause harm "unrelated to a legitimate law enforcement purpose." The harm in this case, they argue, was a result of the aim to protect the public from Mornson's erratic driving.

We reject respondent Mornsons' suggestion for use of a standard that alters the "intent to injury" concept of Lewis. Respondents also assert that police conduct in this case clearly reflected a purpose to cause harm unrelated to the legitmate aim to help Mornson. Respondents suggest that the conduct of the officers is shocking to the conscience because, while the officers were under orders to "monitor" Mornson without lights and sirens in order to avoid agitating her, they decided the best way to help was to "take out" Mornson, employing use of deadly force. Respondents assert that this decision was not based on any legitimate law enforcement purpose.

The district court correctly held that it would be inappropriate, in advance of an in-depth examination of the facts, to determine that there was no constitutional violation, and that the use of deadly force was legitimate as a matter of law. It is undisputed that the officers first attempted "to help" Mornson, and the examination of all relevant evidence will be required to determine if the employment of deadly force was motivated by a legitimate aim. The district court did not err in denying a summary judgment before learning in later proceedings whether police acted reasonably.

To defeat an immunity claim, the due process violation also must be shown with sufficient specificity. Wilson v. Layne, 526 U.S. 603, 615, 119 S. Ct. 1692, 1699 (1999). Appellants also argue that any constitutional violation was sufficiently unclear that a reasonable officer might believe choices made in this case were lawful, entitling appellants to a qualified immunity.

Just as appellants failed to show that there was no demonstration of a constitutional violation, the district court determined that the record did not presently permit a finding that those rights were not clearly implicated in the course of police conduct that occurred in this case. As the court appropriately observed, a proper characterization of police conduct required further attention to evidence on numerous aspects of police behavior, such as pursuing Mornson with sirens and lights activated; asking for permission to "take her out" during the chase; not using other means to try and terminate the chase; the reasoning behind the state patrol's refusal to come into contact with the car; the clearness of the direction given by the on duty police captain; Minneapolis police pursuit policy; the [mental] state of Mornson and her actions on the road; and many other factors.

And the court correctly observed that the clarity of the right in this case might be greater than similar rights asserted when an offender is pursued: "This action differs from [other precedents] . . . in that the officers here were following Mornson not to arrest her because she was fleeing, but to `help her' because they believed she was `suicidal' or `psychotic.'"

Appellants argue that the district court erred in viewing Lewis and related cases as unique to the situation of an attempted arrest. And we are mindful, having regard for the district court's careful assessment of purposes other than arrest, that a special degree of discretion should be afforded to police who must decide the merits and methods of intervening in the unreasonable behavior of someone thought to be mentally ill. See Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn. 1988) (observing wide discretion afforded to police officials facing "volatile and unpredictable" emergency situations, when discussing official immunity in a domestic dispute). Still, it was appropriate in examining the arrest precedents to observe, as did the district court, that they focus on identifying the purpose for the police action in order to define whether or not it was a legitimate; and the record does not permit a present judgment on the asserted reasonableness of police choices made in this case.

Appellants have not met their burden of proving, as a matter of law, that the officers' conduct was reasonable, based on the pretrial record. A measure of the reasonableness of police conduct in taking the risks of forcefully dealing with respondent Mornson will depend on a thorough analysis of all available evidence. The district court did not err in denying a summary determination in favor of a qualified immunity.

Respondents alternatively contend that the evidence shows a second constitutional violation, a Fourth Amendment offense in the form of excessive force employed in the course of seizure of a person. Because pre-trial dismissal is inappropriate on respondents' due process assertions, we need not review this further statement of cause for the district court's denial of a summary judgment for appellants.

2. Official Immunity

Appellants argue that official immunity protects their conduct in pursuing respondent Mornson. Official immunity protects an official's discretionary decisions made at an operational level, Watson v. Metro. Transit Comm'n, 553 N.W.2d 406, 414 (Minn. 1996), unless the official acts in a manner that is legally unreasonable (a "willful and malicious" manner), State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 572-73 (Minn. 1994). Even though an officer's actions are discretionary, an officer is not shielded from suit if his or her actions are willful or malicious. Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn.App. 1997); see also Rico v. State, 472 N.W.2d 100, 106-07 (Minn. 1991).

We examine, initially, respondent Mumm's assertion that the district court erred when it determined that the police pursuit in this case did not involve a ministerial decision. An alternative decision would end the official immunity inquiry.

Discretionary conduct requires the exercise of "judgment or discretion." See Janklow v. Minn. Bd. of Examiners for Nursing Home Adm'rs , 552 N.W.2d 711, 716 (Minn. 1996). By contrast, ministerial conduct is absolute, certain, and involved the mere execution of a specific duty under designated facts. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998).

Official immunity is "regularly applied to the judgment required of police officers in discharging their duties." Gleason v. Metro. Council Transit Operations , 582 N.W.2d 216, 220 (Minn. 1998); see Beaulieu , 518 N.W.2d at 570 (finding decision to stop and detain armed robbery suspects was discretionary); Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992) (finding decision to engage in high-speed chase was discretionary); Johnson, 453 N.W.2d at 42 ("[E]ven if there was a battery during the handcuffing, it seems to us this presents the classic case of that type of exercise of discretion giving rise to official immunity."); Elwood, 423 N.W.2d at 678-79 (finding decision to break into home without warrant was a discretionary decision).

Because police officers are given the ability to act using their discretion in most situations that require "split second" decision-making and in situations where officers possess "meager information," the district court held that "[a]llowing a characterization of the officers' actions here to be described as ministerial would cut at the fundamental underpinnings of the privilege."

Finally, "the fact that a written protocol exists does not always transform an otherwise discretionary act into a ministerial one." Bailey v. City of St. Paul , 678 N.W.2d 697, 702-03 (Minn.App. 2004). Field-level actions taken by public officials may be discretionary even when there are extensive regulations that dictate procedure. Id. (citation omitted). As the district court determined, the police pursuit in this case was within those discretionary activities allowed for police officers.

Appellants argue that the officers' conduct "was not malicious or willful." The district court determined that because respondents presented enough evidence to rebut appellants' contention that there was no malice or willful conduct, it was necessarily within the province of the jury to decide whether or not the officers' actions rose to the required malicious stage. The court correctly observed:

It is again improper, however, to engage in an evaluation of the officers' conduct and construe material facts at the summary judgment stage. Whether or not the officers' actions arose to the required malicious stage is a province for the jury. Plaintiff and Third-Party Plaintiffs raise enough evidence to rebut the moving party's contention that there was no malice or willful conduct.

We find merit in the district court's conclusion that a more thorough factual determination is necessary. The record permits conflicting inferences that necessitate a more extensive factual finding; appellants have not met their burden that their actions were not willful or malicious.

While official immunity protects public officials acting in their official capacity from suit, vicarious official immunity protects the governmental entity from suit when the threat of potential liability would unduly inhibit the exercise of discretion required of public officials in the discharge of their duties. Watson, 553 N.W.2d at 414. "Vicarious official immunity protects a governmental entity from liability based on the acts of an employee who is entitled to official immunity." Dokman, 637 N.W.2d at 297 (citing Wiederholt, 581 N.W.2d at 316).

Like the officers, the city has failed to meet its burden of showing, as a matter of law, that police conduct in this case was per se reasonable. See Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997) (stating burden is on party asserting immunity); Beaulieu, 518 N.W.2d at 571 ("[d]efendants are entitled to summary judgment on the basis of official immunity if there are no genuine issues of material fact").

Affirmed.