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Randy Philip Rau v. Michael David Roberts and City of Minneapolis

May 19, 2011

RANDY PHILIP RAU, APPELLANT,
v.
MICHAEL DAVID ROBERTS AND CITY OF MINNEAPOLIS, APPELLEES.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Smith, Circuit Judge.

Submitted: November 16, 2010

Before SMITH, BEAM and BENTON, Circuit Judges.

Randy Rau sued Michael Roberts and the City of Minneapolis ("City") for injuries Rau sustained in an assault that Roberts-an off-duty City police officer-allegedly committed. Rau's complaint against Roberts alleged excessive force pursuant to 42 U.S.C. § 1983 and assault and battery under Minnesota law. The complaint also alleged that the City was vicariously liable for the assault and battery under Minnesota law. The district court*fn1 granted the City's motion for summary judgment with respect to the vicarious liability claims against the City; dismissed the § 1983 claim against Roberts; and remanded the assault and battery claims against Roberts to the Minnesota state court. On appeal, Rau seeks reversal of the court's decision to grant summary judgment for the City on his claims of vicarious liability for the assault and battery. For the following reasons, we affirm.

I. Background

On July 11, 2006, Roberts worked as a police officer for the City. Rau owns and operates a gas station and car wash called "The Perfect Carwash" in Brooklyn Center, Minnesota. Roberts's police department time card shows that he clocked out at 8:00 p.m. At approximately 9:00 p.m., Roberts traveled to The Perfect Carwash in his personal vehicle, with his wife driving, to buy gasoline. Roberts, still wearing his police-issued uniform, badge, utility belt, and firearm, stayed in the vehicle, while his wife prepared to fuel the car. Roberts's wife went inside to prepay for the fuel and then returned to the vehicle and attempted to pump the gas; however, the pump possibly malfunctioned, as Roberts could not tell if it had actually pumped the gas.

Roberts exited the vehicle and complained to the cashier, Jason Stevens. The two men disputed whether the gas had actually been dispensed. Unable to resolve the dispute himself, Stevens went inside the store to get Rau, who was in a back office. When Rau began talking to Roberts, Roberts told him, "I want my $25 or give me my [expletive] gas." Rau, standing near the vehicle and the gas pumps, told Roberts that the gas had been dispensed. Seeing that the vehicle door was open with the key in the ignition, Rau moved toward the door-in an attempt to show that the gas had been dispensed by starting the vehicle and checking the gas gauge. When he did so, Roberts stated, "[Y]ou touch my [expletive] car and I'll break your neck."

As Roberts and Rau continued to argue, Rau told Roberts that he would have to call the Brooklyn Center police if he wanted "his" gas. At some point, Rau told Roberts that he was going to remove the gas-pump nozzle from the gas tank of Roberts's vehicle. Roberts responded, saying, "[D]on't touch my [expletive] car." Nonetheless, Rau reached toward the nozzle, and Roberts struck or pushed Rau with both hands, knocking Rau off his feet and causing him to hit the gas pump and an adjacent guard rail. Rau told Roberts that he was going into the store to call 911. Roberts followed him, yelling either, "[W]hat are you calling the [expletive] police for? The police are here," or "Why are you calling the cops? I am the cops."

After calling 911, Rau returned to Roberts's vehicle to remove the gas-pump nozzle-concerned that Roberts might drive off with the nozzle still attached to his car. Roberts again warned Rau not to touch his vehicle. With little or no warning, Roberts grabbed Rau, slammed him against the back of his vehicle, dropped him, picked him up, and, according to Rau, punched him in the face. According to Rau, right before Roberts punched him, Roberts yelled, "I am so [expletive]-for 32 years I have dealt with you white, [expletive] honkies and I'm tired of it."

During the altercation, a bystander, Ben Wysocki, asked Roberts whether he was on duty. Roberts first answered yes. When Wysocki asked him again, Roberts then answered no.

Rau then ran into the store and called 911 again. The Brooklyn Center police arrived soon thereafter but made no arrests. That night, Rau went to the hospital for treatment of injuries he allegedly suffered as a result of the incident, including a chipped tooth, bruises, a split lip, a minor concussion, back pain, neck pain, and anxiety.

Rau filed suit against Roberts and the City in Minnesota state court. His complaint against Roberts alleged excessive force pursuant to 42 U.S.C. § 1983 and assault and battery pursuant to Minnesota law. The complaint also alleged that the City was vicariously liable for the assault and battery. With Roberts's consent, the City removed the action to the district court. The district court had jurisdiction over Rau's § 1983 claim against Roberts, and it exercised supplemental jurisdiction over the assault and battery claims against Roberts and the vicarious liability claims against the City. The City moved for summary judgment, arguing that Rau did not bring his § 1983 claim against the City and that the undisputed evidence showed that the City could not be held vicariously liable for the assault and battery. The district court granted the City's motion with respect to the vicarious liability claims, and it dismissed the § 1983 claim against Roberts sua sponte. Having dismissed Rau's only claim based on federal law, the § 1983 claim, the court remanded Rau's assault and battery claims against Roberts to the Minnesota state court.

II. Discussion

Here, Rau argues that the district court erred in granting the City's motion for summary judgment on his vicarious liability claims against the City. Specifically, Rau argues that summary judgment was improper because a genuine issue of material fact exists regarding whether Roberts acted within the course and scope of the City's employment when he committed the alleged torts. It is undisputed that Roberts had clocked out of work prior to the incident. Rau, however, argues that a material fact remains unresolved involving whether Roberts was on duty. Rau so contends because Roberts told a witness that he was on duty; he was wearing his uniform and equipment; he "used his command voice and posture"; he told Rau "the police are here"; and he "acted in his capacity as an officer investigating a possible theft because he thought his wife did not get the gas she paid for." In addition, Rau argues that Roberts's assault was foreseeable based on a well-known risk of assault by police officers, citing several cases ...


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