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Rozycki v. City of Champlin

United States District Court, D. Minnesota

December 30, 2016

CITY OF CHAMPLIN, MATTHEW SMITH, in his official and individual capacity, and JEFF MARTIN, in his official and individual capacity . Defendants.

          Paul Applebaum, APPLEBAUM LAW FIRM, for plaintiff.

          Jason M. Hiveley, IVERSON REUVERS CONDON, for defendants.


          JOHN R. TUNHEIM Chief Judge

         Plaintiff Kenneth Rozycki brings this action against Defendants Officer Matthew Smith, Officer Jeff Martin, and the City of Champlin, alleging claims under 42 U.S.C. § 1983 and Minnesota law based on an encounter between Rozycki and the officers at Rozycki's home on April 20, 2014. Rozycki alleges that Martin and Smith violated his Fourth Amendment rights by entering his garage without a warrant or consent, tackling and restraining him - which resulted in his pants and underwear falling down for some period of time - and arresting him inside his home without a warrant or probable cause. Rozycki also alleges battery and invasion of privacy in connection with these events. All Defendants move for summary judgment on all claims.

         The Court will grant Smith's and Martin's motion for summary judgment as to the § 1983 claims of arrest without probable cause and unlawful strip search; however, the Court will deny summary judgment as to the claims of unlawful, warrantless home entry and arrest and excessive force, as Smith and Martin are not entitled to qualified immunity on these claims. The Court will grant the City of Champlin's motion for summary judgment as to all § 1983 claims because Rozycki has failed to provide any factual or legal basis for extending liability to the City. As for the state claims, the Court will grant summary judgment as to all Defendants on Rozycki's claim of invasion of privacy, but will deny summary judgment as to all Defendants on Rozycki's claim of battery because Defendants are not entitled to official immunity.


         On the afternoon of Easter Sunday, April 20, 2014, Plaintiff Kenneth Rozycki was at his home in Champlin, Minnesota, with a number of family members and family friends. Defendant Matthew Smith, a Champlin police officer, responded to a call from Rozycki's neighbor complaining of dogs barking loudly at Rozycki's home. (Aff. of Brian P. Taylor (“Taylor Aff.”), Ex. 1 (“Smith Dep.”) at 11:21-13:14, May 2, 2016, Docket No. 14; Taylor Aff., Ex. 7 (“Rozycki Dep.”) at 28:3-17.) Smith arrived in the late afternoon and observed about half a dozen people in the driveway area drinking beer. (Smith Dep. at 19:20-20:11). Rocyzki went out to the street to speak with Smith, who remained in his squad car. (Smith Dep. at 20:19-23, 21:18-22:15; Rozycki Dep. at 28:3-6.) When Smith brought up the noise complaint, Rozycki became verbally agitated. (Smith Dep. at 22:16-25:6; Taylor Aff., Ex. 2 (“Jason Dep.”) at 9:25-11:3; Rozycki Dep. at 29:8-30:2.) Rozycki eventually walked away from the squad car. (Rozycki Dep. at 29:24-25.)

         Rozycki's adult son Jason Rozycki, accompanied by Jason's son, stayed near Smith's car briefly after Rozycki walked away; Jason testified that Smith muttered something along the lines of “typical Rozyckis, ” after which Jason said, “[y]ou want my son to respect the police but you are making comments like this.” (Jason Dep. at 11:3-21; see also Taylor Aff., Ex. 4 (“Jeremy Dep.”) at 10:8-17.) According to Jason, Smith apologized and left the scene. (Jason Dep. at 11:8-9, 15:1-6.) In contrast, Smith testified that Rozycki told him the dogs would be put inside, after which Smith drove away, with no mention of the “typical Rozyckis” statement. (Smith Dep. at 25:5-24.)

         Shortly after Smith left, Rozycki had a verbal exchange with the neighbor who had made the noise complaint. (Taylor Aff., Ex. 5 (“Erstad Dep.”) at 14:16-15:1.) The neighbor then called 911, reporting that Rozycki had threatened her, saying “if you ever call the police on my dogs barking again, it will be the fucking last time you call.” The neighbor also reported that she felt “very threatened, ” and that Rozycki had threatened her in the past. (Smith Dep. at 27:17-33:23, 28:16-31:4, 33:15-23; see also Martin Dep. at 13:18-23.) Rozycki testified, on the other hand, that although he did express his frustration and questioned his neighbor about why she called the police, he had not threatened her, and one other witness in Rozycki's yard at the time also testified that Rozycki made no threat.[1] (Rozycki Dep. at 32:7-33:10; Erstad Dep. at 15:16-19.) Smith testified that based on this telephone call, he believed Rozycki's conduct amounted to felony terroristic threats. (Smith Dep. at 32:4-33:14.)

         Smith, Defendant Jeff Martin, a Champlin police officer, and Tony Mortinson, an Osseo police officer, responded in person to the neighbor's 911 call. The three officers met a few blocks from Rozycki's house to discuss the situation. (Smith Dep. at 33:24-35:9; Taylor Aff., Ex. 6 (“Martin Dep.”) at 12:4-15:13; Aff. of Andrew Irlbeck (“Irlbeck Aff.”), Ex. 13, May 23, 2016, Docket No. 20.) At the time of the events in question, Martin weighed over 290 pounds and was six feet four inches tall. (Martin Dep. at 6:25-7:6; Irlbeck Aff., Ex. 4 at 2.) An onlooker testified (presumably referring to Martin) that one of the officers at the Rozycki home that day was “the biggest cop that [she had] ever seen.” (Matheny Dep. at 12:14.) According to Mortinson's police report, before the trio approached the Rozycki house, Smith and Martin told him that they planned to arrest Rozycki for terroristic threats and that they expected the other people at the Rozycki home to fight the officers during the arrest. (Irlbeck Aff., Ex. 13.)

         The three officers then drove their squad cars closer to the Rozycki house, parked on the street, and approached the house on foot. (Smith Dep. at 35:10-23, 39:16-19; Martin Dep. at 15:12-19, 16:4-10.) When the officers drove up, Rozycki and a number of adults were in the driveway drinking beer and the garage door was open. (Smith Dep. at 35:18-36:8, 37:24-39:14; Martin Dep. at 15:20-23; Def. Ex. 13 at 18:24:45-50; Taylor Aff., Ex. 11 (“Coffey Dep.”) at 14:23-15:20; Taylor Aff., Ex. 13 (“Smith Video”) at 18:24:44-47.) Multiple onlookers testified that it appeared as though the officers snuck up on Rozycki by walking up along the side of the house, out of Rozycki's view. (Taylor Aff., Ex. 3 (“Countryman Dep.”), at 18:15-20, 19:3-5, 22:15-24, 23:11-12; 69:9-70:7; Taylor Aff., Ex. 10 (“Matheny Dep.”) at 12:1-24, 14:4-22, 16:13-17.) The officers deny that they were sneaking up on Rozycki and testified that they merely walked up to the house from their cars in plain sight - at least one witness statement supports this version of events.[2] (Smith Dep. at 35:18-23, 39:16-19; Martin Dep. at 16:4-17:16; Jeremy Dep. at 15:24-16:8.)

         The key events in this case took place over the span of about thirty seconds, [3]starting when Smith, after walking within about fifteen feet of Rozycki's house, asked Rozycki if the two of them could talk.[4] (Smith Dep. at 39:16-40:19.) Instead of joining Smith for the requested conversation, Rozycki walked toward the door inside the garage leading into the house. (Smith Dep. at 40:21-22, 42:17-43:1; Rozycki Dep. at 36:2-6.) Smith testified that he perceived Rozycki's movement toward the interior door as an attempt to retreat and to disobey Smith's request. (Smith Dep. at 44:21-45:17; see also Irlbeck Aff., Ex. 3 at 5.) A few seconds later, Rozycki told the officers not to enter the garage, and then Smith immediately told Rozycki twice that he was under arrest, ran into the garage, and tackled Rozycki in the doorway leading into the house. (Rozycki Dep. at 36:6-11; Smith Dep. at 43:2-45:24; Jeremy Dep. at 16:9-23; Taylor Aff., Ex. 12 (“Barrett Dep.”) at 17:2-25.) Multiple witnesses testified that Smith and Martin entered the garage and tackled and restrained Rozycki without any noticeable provocation.[5]

         As a result of the tackle, both Rozycki and Smith ended up lying with the top halves of their bodies inside the door leading into the house and their legs lying in the garage on the stairs leading up to the door. (Rozycki Dep. at 43:4-23; Martin Dep. at 19:2-15; Smith Dep. at 45:17-46:3.) Martin entered the garage shortly after Smith did; after Smith “took [Rozycki] down to the ground, ” Martin assisted in restraining Rozycki by holding his legs. (Smith Dep. at 45:17-47:8; Martin Dep. at 20:5-19; Rozycki Dep. at 39:10-11.) Smith then stood up and Martin moved Rozycki's body down the stairs onto the concrete garage floor, where Smith and Martin continued to restrain him, rolled him onto his stomach, and handcuffed his hands behind his back. (Smith Dep. at 46:24-47:4, 50:21-24; Martin Dep. at 20:24-25:11, 22:1-25; Rozycki Dep. at 38:8-41:25.) Martin testified that he “slid [Rozycki] down the stairs gently, ” and “roll[ed] him over to place him under arrest and put his hands behind his back.” (Martin Dep. at 20:5-21:3.) Rozycki described the officers' efforts somewhat differently, testifying that they “slammed” his body into the floor, and in the process he hit his hip and the right side of his face and head on the concrete floor, causing pain to his hip. (Rozycki Dep. at 36:11- 15, 39:3-42:3.) A neighbor watching from across the street testified that around the time Rozycki was tackled, she heard screaming followed by a “disturbing” sound of a body hitting the garage floor. (Matheny Dep. at 12:24-13:3.)

         The officers perceived Rozycki to be physically resisting them and repeatedly told him to stop resisting. (Smith Dep. at 47:3; Smith Video at 18:25:25-34; see also Irlbeck Aff., Ex. 3 at 5; Irlbeck Aff., Ex. 4 at 5.) Meanwhile, Rozycki and witnesses testified that Rozycki was not resisting and that starting shortly after he was tackled, Rozycki was moaning and yelling in pain, stating multiple times that his artificial hip was injured. (Barrett Dep. at 16:4-5; Matheny Dep. at 13:11-12, 21:5-7, 22:16-17; Jeremy Dep. at 20:5-17, 23:16-23; see also Smith Video at 18:25:22-28; Rozycki Dep. at 72:17-20.) Martin testified that during the process of handcuffing Rozycki, after he became aware of Rozycki's hip complaints, “we kind of stopped for a minute, just because we didn't want to further injure [his hips].” (Martin. Dep. at 22:1-11.)

         At some point during the course of the tackle or later restraint, Rozycki's pants and underwear were pulled down to his ankles, and he was exposed to onlookers in the garage. (Jason Dep. at 18:1-19:3; Jeremy Dep. at 16:17-17:4; Rozycki Dep. at 48:1-50:14; Taylor Aff., Ex. 8 (“Jordan Dep.”) at 25:16-27:1.) Rozycki does not allege that the officers conducted any sort of invasive search, but he does allege that the officers waited longer than necessary to pull his pants up and did not allow his relatives and friends standing nearby to pull his pants up when they tried to do so. (Taylor Aff., Ex. 9 (“Angela Dep.”) at 14:13-22; Jason Dep. at 19:7-14, 20:16-20; Jeremy Dep. at 17:1-15; Jordan Dep. at 26:4-11; Barrett Dep. at 15:9-14, 19:19-20:1.) It is not clear precisely when Rozycki's pants were pulled back up.[6]

         Over the course of the next seven or eight minutes, Smith and Martin stood Rozycki up and walked him out of the garage, still handcuffed, where eventually they let him lie down on the ground to wait for an ambulance. (Smith Video at 18:26:30-18:30:45; Smith Dep. at 52:3-53:16; Jeremy Dep. at 23:16-24:20; Rozycki Dep. at 47:19-48:5, 50:15-51:13, 56:2-16.) During this period, the audio recording captures intermittent statements of pain, confusion, and agitation from Rozycki, as well as officer statements both explaining to Rozycki that the officers were “trying to help [him] up” and also, at other moments, abruptly ordering Rozycki to cooperate, to stand up, and to walk. (See, e.g., Smith Video at 18:27:00-30, 18:28:50-29:10.) Smith testified that during this period, Rozycki collapsed in the garage at one point after standing, and also that he “went limp” and “wasn't cooperating at all anymore, and at this time he was saying that his hip or hips were sore [and that] he had artificial hips.” (Smith Dep. at 52:9-17; see also Martin Dep. at 24:11-17.)

         Whether the officers used any force against Rozycki after handcuffing him - other than the minimal force necessary to stand him up and walk him out of the garage - is a matter in dispute. Rozycki alleges that at some point after he was handcuffed, an officer placed Rozycki in a chokehold, whispered “I'm sick of your bullshit Ken, ”[7] and slammed his body against a car parked in the driveway. (Rozycki Dep. at 57:9-58:7.) Multiple witness statements support this allegation. (Jason Dep. at 30:10-31:20; Angela Dep. at 12:16-13:5; Matheny Dep. at 28:22-29:12, 30:13-15; Coffey Dep. at 18:8-14; Barrett Dep. at 15:23-16:2, 20:9-21:6.) While Rozycki testified that he does not remember which officer committed these acts, (Rozycki Dep. at 57:10-13), another witness testified that “the bigger cop” (presumably Martin) had Rozycki in a chokehold and “was tossing him around” after he was handcuffed, (Coffey Dep. at 18:14). One witness also testified that when the officers walked Rozycki outside and let him lie on the ground, they “pushed him down into the ground.” (Jason Dep. at 31:21-25.) Defendants deny that any officer on the scene placed Rozycki in a chokehold, slammed him against a car, whispered such a statement in his ear, or threw Rozycki to the ground.

         At some point during Rozycki's exclamations of pain and fear about his hips possibly becoming dislocated, an officer is recorded saying: “If you wouldn't have run from me when I told you you were under arrest it wouldn't have happened, ” (Smith Video at 18:31:37-40), and in response a male voice chimes in: “we have a lot of witnesses, ” (id. at 18:31:40-43.) The audio recording later captures Smith stating “I asked him to step out and talk to me and I told him you are under arrest, ” (id. at 18:32:25-45), and later, “when somebody runs from me when I tell them they're under arrest I can do anything that I need to to get them into custody, ” (id. at 18:33:05-20).

         Between the moment that Smith first tackled Rozycki and the time the officers lay Rozycki on the ground outside of the garage to wait for an ambulance, the situation was tense and volatile inside the garage, according to Smith. (Smith Dep. at 48:5-20, 49:5-50:5, 50:25-52:25; see also Smith Video at 18:25:45-18:26:15.) The other individuals at Rozycki's house (including his four adult children, a few family friends, and a few children) were all watching what was going on between Rozycki and the police, and they came gradually closer to Rozycki and the officers and yelled and asked questions throughout the process. (Smith Video at 18:26:40-18:30:00; see also Smith Dep. at 51:9-11; Martin Dep. at 24:3-23.) Smith testified that the individuals in the crowd were not following police commands and the officers were afraid of what the crowd might do, especially given that many of them had been drinking. (See, e.g., Smith Dep. at 48:5-20, 51:8-24.) The officers repeatedly yelled at the onlookers to back up, threatened them with arrest, and warded them off by holding out a taser; according to Smith, while Smith and Martin were restraining Rozycki, Mortinson was engaged in “crowd control.” (Smith Video at 18:25:28-50; Smith Dep. at 51:19-24; Rozycki Dep. at 53:1-7; Angela Dep. at 11:7-15.) The officers did end up arresting one onlooker - Rozycki's son Jordan Rozycki - due to his conduct in the garage. (Martin Dep. at 24:24-25:19.) However, at least one witness testified that when the officers ordered the witnesses to back up, the crowd complied. (Angela Dep. at 11:13-15.) There is also some evidence that many of the witnesses in the garage were simply trying to understand what was happening and to find a way to pull up Rozycki's pants. (See, e.g., Jason Dep. at 19:9-14; Rozycki Dep. at 50:16-20.)

         After Rozycki was settled on the ground outside of the garage, he remained in handcuffs until an ambulance arrived to transport him to a hospital. (Smith Video at 18:30:45-18:53:20; Smith Dep. at 55:9-57:15.) There were a few people across the street who saw and heard what happened. These witnesses' testimony generally supports Rozycki's allegations that officers snuck up on him, tackled him without provocation, and were physically forceful with him. (See Smith Dep. at 51:13-18; Countryman Dep. at 14:1-14; Matheny Dep. at 7:18-8:25; Coffey Dep. at 11:10-23, 12:19-26:13.)

         Defendants repeatedly point out that Rozycki testified that his memory of the events in question is a “little fuzzy” and that Rozycki had been drinking before the encounter. Rozycki attributes his “fuzzy” memory to the officers' use of force when they allegedly slammed his head into the floor. (Rozycki Dep. at 46:18-24, 62:3-15, 71:22-72:14, 90:19-24, 96:1-8, 107:19-23; Jason Dep. at 27:16-19; Jeremy Dep. at 28:21-29:1.) Defendants also emphasize that Smith and Martin were familiar with Rozycki from past disturbances at the Rozycki home. According to Smith, in his experience, even minor situations at Rozycki's residence could turn bad quickly, especially if alcohol was involved. (Smith Dep. at 13:15-19:2, 20:25-22:12; see also Jason Dep. at 11:22-13:14; Martin Dep. at 8:12-11:19.)

         In the end, an x-ray showed no displacement or fractures in Rozycki's hips. Rozycki claims damages including lasting hip pain and bruising, a bruised rib, a bruised face and ear, a concussion, pain and suffering, embarrassment and mental anguish, a loss of liberty, and medical bills in the amount of $5, 612.12. Rozycki was never charged with any crime related to these events.


         Rozycki filed this action in Minnesota state court in December of 2014, asserting a number of federal and state law claims. Pursuant to 42 U.S.C. § 1983, Rozycki argues that Smith and Martin violated his Fourth Amendment rights by using excessive force, conducting an unlawful strip search, arresting him without arguable probable cause, and unlawfully entering his home and arresting him there without a warrant. Rozycki also asserts state law battery and invasion of privacy claims.

         Defendants removed to the District of Minnesota on February 25, 2015. On May 2, 2016, Defendants filed a motion for summary judgment on all claims, arguing that Smith and Martin are entitled to qualified immunity in relation to the § 1983 claims, there is no basis to hold the City of Champlin vicariously liable for the alleged § 1983 violations, and the state law claims fail as a matter of law against all Defendants, or alternatively, Defendants are entitled to official immunity.



         Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the lawsuit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is appropriate if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “To defeat a motion for summary judgment, a party may not rest upon allegations, but must produce probative evidence sufficient to demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110, 1113 (8th Cir. 2009). If the plaintiff's version of events “is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         II. SECTION 1983 CLAIMS

         A. Smith and Martin

         “To state a claim under [42 U.S.C.] § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” Cook v. City of Bella Villa, 582 F.3d 840, 848-49 (8th Cir. 2009) (internal quotation marks and brackets omitted). Additionally, the doctrine of qualified immunity shields police officers from liability for civil damages, “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The protection of qualified immunity applies regardless of whether the government official's error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy J., dissenting)). The doctrine thus gives police officers “breathing room to make reasonable but mistaken judgments [and] protects ‘all but the plainly incompetent or those who knowingly violate the law.'” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).

         In assessing whether a police officer is entitled to qualified immunity, courts consider two factors, which may be examined in either order: (1) whether the facts indicate “a violation of a constitutional right, ” and (2) “whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.” Pearson, 555 U.S. at 232, 236 (citation omitted). “Unless both of these questions are answered affirmatively, [the defendant] is entitled to qualified immunity.” Nord v. Walsh Cty., 757 F.3d 734, 738 (8th Cir. 2014).

         “Although the defendant bears the burden of proof for this affirmative defense [of qualified immunity], the plaintiff must demonstrate that the law was clearly established.” Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th Cir. 2014) (quoting Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007)). “For a right to be considered clearly established, the ‘contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'” Lawyer v. City of Council Bluffs, 361 F.3d 1099, 1103 (8th Cir. 2004) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also United States v. Lanier, 520 U.S. 259, 270-72 (1997). “Whether a given set of facts entitles the official to summary judgment on qualified immunity grounds is a question of law. But if there is a genuine dispute concerning predicate facts material to the qualified immunity issue, there can be no summary judgment.” Wimbley v. Cashion, 588 F.3d 959, 961 (8th Cir. 2009) (quoting Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003)).

         The Court will analyze each alleged § 1983 violation, and whether Smith and Martin are entitled to qualified immunity, separately below.

         1. Probable Cause[8]

         In order to comply with the Fourth Amendment, a warrantless arrest must be “supported by probable cause.” Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011). A law enforcement officer has probable cause “when the totality of the circumstances at the time of the arrest ‘are sufficient to lead a reasonable person to believe that the [arrestee] has committed or is committing an offense.'” Id. at 523 (quoting Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). For qualified immunity regarding a warrantless arrest claim, officers need only have had “arguable probable cause.” Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008). Arguable probable cause protects an officer who “arrest[s] a suspect under the mistaken belief that [he] ha[s] probable cause to do so, provided that the mistake is objectively reasonable.” Id. While the probable cause standard gives law enforcement “room for reasonable mistakes, ” the qualified immunity standard for a warrantless arrest claim, “affords law enforcement officials an even wider berth for mistaken judgments ‘by protecting all but the plainly incompetent or those who knowingly violate the law.'” Ulrich v. Pope Cty., 715 F.3d 1054, 1059 (8th Cir. 2013) (quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).

         To determine whether there was arguable probable cause, courts first examine the criminal statute authorizing the arrest in question. See Small v. McCrystal, 708 F.3d 997, 1003 (8th Cir. 2013). Rozycki was arrested for felony terroristic threats[9] under Minn. Stat. § 609.713, subd. 1, which reads:

         Threaten violence; intent to terrorize.

         Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, vehicle or facility of public transportation or otherwise to cause serious public inconvenience, or in a reckless disregard of the risk of causing such terror or inconvenience may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10, 000, or both.

         “Terrorize means to cause extreme fear by use of violence or threats.” State v. Schweppe, 237 N.W.2d 609, 614 (Minn. 1975). A “threat is a declaration of an intention to injure another or his property by some unlawful act, ” and “the question of whether a given statement is a threat turns on whether the communication in its context would have a reasonable tendency to create apprehension that its originator will act according to its tenor.” Id. at 613 (citations omitted). The statute requires either purpose, defined as “aim, objective, or intention, ” id. at 614, or reckless disregard, defined as “conscious disregard of [a] substantial, unjustifiable risk, ” State v. Cole, 542 N.W.2d 43, 52 (Minn. 1996).

         Rozycki's neighbor reported that Rozycki made a threat that communicated an intention to kill her. From what the officers knew at the time, Rozycki had threatened the neighbor in the past, there was an ongoing conflict between Rozycki and the neighbor over a dog barking, Rozycki had a history of activity with the police because of various disturbances, and the neighbor felt very threatened by Rozycki.[10] Based on the neighbor's report, a reasonable officer could have concluded, in this context, that there was probable cause to believe Rozycki acted with the purpose of terrorizing the neighbor, or at least with reckless disregard of the risk of causing such terror.[11] Therefore, Smith and Martin had at least arguable probable cause, and they are entitled to qualified immunity on the claim that they arrested Rozycki without probable cause.

         Rozycki contends that he never threatened his neighbor, so Smith and Martin lacked arguable probable cause. Although Rozycki is entitled to a favorable construction of disputed facts at summary judgment, Rozycki has put forth no evidence calling into question the truth of Smith's assertion that the neighbor communicated to Smith that Rozycki threatened her. Even if it is true that Rozycki never threatened his neighbor, it was not an objectively unreasonable “mistake” for Smith and Martin to rely on the neighbor's complaint. since “officials may rely on hearsay ...

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