___________ No. 95-2014

___________ Shelly Marie Ott, * * Plaintiff - Appellee, * * v. * * City of Champlin, a Minnesota * Municipal Corporation; Gene H. * Appeal from the United States Kulander, Champlin Chief of * District Court for the Police; Allen Brunns, Champlin * District of Minnesota. Police Sgt.; Robert L. Penney, * Champlin Police Officer; Jolene * Sander, Champlin Police * Officer, * * Defendants - Appellants. *

___________ Submitted: November 15, 1995 Filed: March 29, 1996

___________ Before BEAM, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.
We have before us the second interlocutory appeal in this case, which arises out of police officers' actions in breaking up a party at whic h ShellyMarie Ott was a guest. In the first appeal we affirmed the entry of summary judgment against the plaintiffs on their federal civil rights and state tort claims because the officers were entitled to qualified and official immunity. Greiner v. City of Champlin , 27 F.3d 1346 (8th Cir

. 1994). The district court had also entered summary judgment against Ott
on her claim under the Minnesota Human Rights Act, Minn. Stat. § 363.03, subd.

### The Honorab le Michael J. Davis, United States District Judge 1 

### for the District of Minnesota.
-2- 4 (1991). The officers did not claim immunity as to the Minnesota Human Rights Act claim, because they believed official immunity was not a defens e to that claim under Minnesota law. We reversed the summary judgment on th e Minnesota Human Rights Act claim and remanded fo r trial. Greiner , 27 F.3d at 1356. In response to a change in Minnesota law making official immunit y available as a defense to the Minnesota Human Rights Act claim, th e offic ers filed a new summary judgment motion in the district court, 1 contending that they were entitled to official immunity on the undisputed facts and as a matter of collateral estoppel. The district court denied the officers' motion, and we affirm.

We recited the facts of this case at length in Greiner , and need not repeat them here, since the sole remaining issue concerns only an isolated incident. The Minnesota Human Rights Act claim is based on the allegation that p olice Sergeant Allen Bruns, after subduing and handcuffing Shell y Marie Ot t, left her kneeling on the floor of the garage with her shir t pulled up over her head, exposing her in a brass iere. When Ott asked that her shirt be put back in place, Bruns reportedly refused to do so, saying, "Hey, w e are all women here." Another officer came and put Ott's shir t back in place.

In the suit as originally filed, Ott, as well as other plaintiff s whose claims have been dismissed, alleged state-law claims of trespass , assault, battery, false arrest, and intentional infliction of emotiona l distress. Greiner , 27 F.3d at 1355. The officers raised the officia l immunity defense to t he common-law tort claims. The plaintiffs sought to defeat official immunity by pointing to four acts that they contende d showed malice; one of these acts was Bruns' refusal to put Ott's shirt bac k in place. We concluded that this allegation did not establish a prim a facie case

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of malice, stating:

As for Bruns' alleged comment, which he denies, it is evident that it does not have bearing on any claim of trespass , ass ault, battery, or false arrest. The closer question i s whether it tends to show malice with reference to intentional inflict ion of emotional distress. Bruns' conduct must b e considered in two respects. We have already commen ted that the action in pulling Ott's tee-shirt over her head occ urred during the free-for-all and her resistance of arrest. This was th e ext ent of the district court's ruling, and we conclude ther e was no error. It was only after she had been handcuffed an d placed on her knees in t he garage that she made the request to Br uns that her shirt be put back in place, and he allegedl y made the comment. We be lieve this to be a close issue, but in light of the emotional n ature of the extended period of events th at preceded it, we cannot conclude that it can be said t o show malice.

Id. at 1355.

However, we concluded that the allegation about the shirt wa s sufficient to establish a prima facie case under the Minnesota Human Right s Act:

The fa cts were clear that Ott was handcuffed and place d in the ga rage on her knees. As soon as she was handcuffed , which she says was in the house, she asked Bruns to pull he r shirt down, and he made the statement, "We are all women here". Sh e was upset and felt humiliated. There was a conflict i n testimo ny as to how long a time elapsed between her reques t th at her shirt be put into place, and the time that Office r Nozzarella put it back in place. While the issue is far from clear, and much affectedby issues of credibility that may not be resolved on summary judgment (such as Ott's admission that she was between sober an d drunk, and had drunk at least six or eig ht beers), we conclude that her treatment in this respec t was so different from what could be expected as to give rise to an inference of gender d iscrimination. We conclude that it is a jury issue whether the delay in putting Ott's shi rt back into place after she had been handcuffed and had requested to have her clothing rearranged makes a prima facie case o f disc rimination on the basis of gender, with the particula r embarrassment and humiliation that would be

### Though the officers argue issue preclusio n, their argument is 2 

### more properly characterized as law of the case.
-4- expected to result to women from such treatment.

Id. at 1356. We remanded on this claim.

On remandthe officers argued that the defense of official immunity had become available in claims under the Minnesota Human Rights Act, see State by Beaulieu v. City of Mounds View , 518 N. W.2d 567 (Minn. 1994), and that they were entitled to summary judgment on that claim. The officers argued tha t the issue of official immunity for the shirt incident wa s decide d in Greiner and was therefore subject to issue preclusion. Eve n 2 if it was not preclud ed, the officers argued that the facts entitled them to summary judgment on the ground of official immunity.
The district court denied the summary judgment motion, reasonin g that the applicability of official immunity in the context of the Minnesot a Human Rights Act clai m was not litigated in Greiner . The court also held that there were genuine issues of fact as to whether Bruns' act would be protected by official immunity. Specifically, the court held that there
was a factual issue as to the amount of time that elapsed between Bruns' act of handcuffing an d Ott's request to replace her shirt, so that it was uncle ar whether the request occurred in the context of the struggle t o arrest Ott or should be considered a discrete event.

The officers renew their issue preclusion and official immunit y arguments on appeal. The officers argue that once there was a finding of official immunity with regard to an act, the finding must necessarily be the same for any cause of action based on the sa me facts. They argue that offici al immunity is based on determinations of whether the defendant' s acts were discretionary or ministerial and whether or not they wer e malicious. They

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conte nd that these determinations do not vary according to the type o f legal right the acts are alleged to have violated.

Ou r reading of Minnesota law answers the officers' argument. I n State by B eaulieu v. City of Mounds View , the Minnesota Supreme Cour t reiterat ed the definition of "malicious wrong" as one in which th e "official has intenti onally committed an act that he or she had reason to believe i s prohibited." 518 N.W.2d at 571. In Beaulieu , the cour t analyzed whether the officers had reason to believe their acts wer e prohibited by asking if those acts were obvious violations of the statutor y right sued under, which was the Minnesota Human Rights Act:

Defendants a re entitled to summary judgment on the basis of official immunity if there are no genuine issues of material fact tending to show def endants' felony stop of the Agunbiades constituted a willful or malicious violation of the Agunbiades' righ ts under Minn. Stat. § 363.03, subd. 4 [the Minnesot a Human Rights Act].

Id. Beaulieuthus gauged maliciousness by reference to the cause of actio n alleged, not by some generalized standard that would apply to all causes of action alike. Accord Kalia v. St. Cloud State Univ. , 539 N.W.2d 828, 832 (Minn. Ct. App. 1995) (malice exists if official "committed an act tha t he or she had reason to believe is prohibited by statute or th e consti tution"). Similarly, when we considered the issue of officia l immunityfor the common-law torts in Greiner , we asked whether the act s allege d tended to prove knowing violations of the particular right s plaintiffs asserted:

As for Bruns' alleged comment, which he denies, it is evident that it does not have bearing on any claim of trespass , ass ault, battery, or false arrest. The closer question i s whether it tends to show malice with reference to intentional infliction of emotional distress.

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27 F.3d at 1355.

There fore, we have had no occasion to decide the precise questio n that remains in this case--whether the facts tend to show Bruns should hav e known he was violatin g Ott's rights under the Minnesota Human Rights Act. Accordingly, we reject the officers' preclusion argument.

The offic ers further argue that there are no genuine issues of fact material to the official immunity question. We have already pointed t o factual disputes abou t how long a time elapsed between Ott's request that her shirt be put back in place and the time Officer Nozzarella put it back

. Id. at 1356. The district court also held that there was a genuine factua l dispute a bout how close in time Ott's request was to her arrest. Th e officers make factual assertions that Bruns was occupied with other duties that prevented him from replacing the shirt. Th e alleged comment, "We are all w omen here," certainly raises a jury question as to whether Bruns ' failure to act was a legitimate response to competing duties or a willful act of gender discrimination. In light of these factual disputes, summary judgment would be inappropriate.

We affirm the decision of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.