In In Re Defense of Alexander Vladimir Brown the Minnesota Court of Appeals considered  whether the City of Minneapolis could decline defense and indemnification of civil claims against of officer arising from the officer’s unauthorized use of a choke hold.  The court considered application of Minn. Stat. § 466.07, which requires municipalities to provide defense and indemnification to officers or employees for damages claimed against them, unless the employee was not acting within the scope of their official duties or was found to be guilty of malfeasance, neglect of duty, or bad faith.

This case involved conduct of Officer Alexander Brown (Officer Brown) when responding to a report of looting. Video footage captured Officer Brown pursuing an individual, AS, through a mini mall, knocking him down with his baton, punching him in the face, and restraining him in a chokehold, despite AS’s lack of resistance or physical combativeness.  According to the court, contrary to the video evidence, Officer Brown’s report indicated AS tackled Officer Brown and an altercation ensued in which Officer Brown feared for his life and used the choke hold to end the altercation.

AS later brought a suit against the City of Minneapolis and Officer Brown for unnecessary use of force in violation of his constitutional rights.

Brown requested the City provide defense and indemnification under Minn. Stat. § 466.07, subd. 1.  Pursuant to policy, the City provided Officer Brown the opportunity to submit evidence in support of his request. After its review, the City determined Officer Brown’s conduct constituted malfeasance, neglect of duty and/or bad faith and declined to provide defense and indemnification. Brown appealed the City’s determination to the Minnesota Court of Appeals claiming, in part, the City’s decision was unsupported by substantial evidence and legally erroneous.

In its decision, the court evaluated whether Officer Brown had engaged in malfeasance that would remove the City’s obligation to defend and indemnify. The court applied a three-factor test to determine malfeasance based on whether Officer Brown engaged in the following:(1) acts that affect the performance of official duties; (2) substantial acts that affect the rights and interests of the public; and (3) acts performed by an officer in their official capacity that are wholly illegal and wrongful.

The court found Officer Brown was engaged in official duties when responding to an apparent crime. Further, it found the City’s determination Officer Brown had used unreasonable force in his application of the choke hold was something of a substantial nature directly affecting the rights and interests of the public against having officers use excessive force.

The court then considered whether the choke hold was wholly illegal and wrongful. In doing so the court determined Minn. Stat. § 609.06, subd. 3 which limits the use of a choke hold to circumstances where § 609.066 authorizes use of deadly force to protect an officer or another from death or great bodily harm established a legal standard under which the City’s obligation to provide defense and indemnification could be evaluated.

The court held the unauthorized use of the choke hold in a manner proscribed under Minn. Stat § 609.06, subd. 3 may violate that legal standard and amount to malfeasance. The court found no threat of death or great bodily harm was present as AS did not threaten or attempt to harm Officer Brown, did not have a weapon and was being pursued for a property crime rather than a crime of violence. Accordingly, Officer Brown was not authorized to use deadly force and doing so was wholly wrong and unlawful, amounting to malfeasance. The court found the City’s denial was supported by substantial evidence  and neither arbitrary nor erroneous.

This is a major decision for Minnesota public employers.  When evaluating the duty to defend and indemnify for claims related to employee conduct, employers may consider whether the conduct is unlawful or wrongful because it is contrary to a legal standard established by statute, rule or law. If you or your organization have questions regarding your obligation to provide defense and indemnification to employees, contact Wiley Reber Law for legal advice that works.