Wishnatsky v. Bergquist

WISHNATSKY, Plaintiff Martin Appellant, individually BERGQUIST, and as ed

Paul Spectrum; John Wil

itor of individually

loughby, and as an NDSU Bernd,

police officer; Thomas individu

ally police officer; Tim and as an NDSU

Lee, Police, Chief of North Dakota State Ozbun, President,

University; James University, Dakota Defen

North Appellees.

dants

Civil No. 950172.

Supreme North Dakota. Court of

May 1996.

Rehearing Denied June 1996. arrived, police campus Wishnat-

Before sky left the offices and sat down (SOTA) Average Than the Students Older Spec- hall lounge, located down the from the offices the student union. trum campus po- to the made two additional calls Wishnatsky one to them had left lice: inform offices, Spectrum and another to advise the building. in Wishnatsky still them Willoughby and Bernd John Thomas Officers responded campus police the NDSU to the They spoke briefly Bergquist calls. offices, and were told another Spectrum they looking that the man were for student lounge. inwas the SOTA Willoughby approached and Bernd Wish- natsky, repeatedly, asked name and in- his legitimate quired any had busi- whether he campus. Wishnatsky on refused to ness Willoughby Wishnatsky told answer. trespassing policy had a NDSU for non-stu- legitimate who no on dents had business Wishnatsky campus, and advised he he give trespass “warning him a card” could Wishnatsky, Fargo, pro se. Martin trespass policy. authorized Wil- Kelly, Bring (argued), Vogel, Mark B. gave Wishnatsky a loughby copy of the Knutson, Weir, Hunke, Ltd., Bye Fargo, & trespass policy that quoted NDSU appellees. for defendants and Code, Century North Dakota 12.1- 22-03(3), trespass. Willoughby on criminal MESCHKE, Justice. Wishnatsky trespass warning also showed you card that “I must ask to leave stated: Wishnatsky appeals a sum- Martin you university or campus refuse mary dismissing for judgment his claims you may trespass- arrested return against false arrest officials of North Dakota Wishnatsky ing.” give still refused to his (NDSU) University and the editor any questions. name or answer affirm. newspaper. the NDSU student We happened is disputed. What next Wil- I. BACKGROUND loughby assert asked Bernd Wishnatsky to campus police come to the early 1993,Wishnatsky, an In who was not station, Wishnatsky voluntarily went student, sought place express- ads them. asserts an with in affida- ing his in the NDSU anti-abortion views vit that the advised him would newspaper, Spectrum. He met student custody give him into if he did take Bergquist, Spectrum, Paul editor name, hands me” and then “laid NDSU officials to discuss the various building police me out of the to the “escorted 7, 1993, April matter. On went Wishnatsky was to the car outside.” taken Spectrum offices student the NDSU station, campus police where met with building union to see if an he had submit- ad Lee, police. campus Tim chief of After a After a ted had run in the latest edition. situation, discussion Wishnat- brief about encounter, Bergquist brief asked police sky left the station. to leave offices. Wish- When days later, Bergquist’s Wishnatsky began this despite refused to leave Eleven so, Bergquist against repeated requests county Bergquist, that he action court Wil- Bernd, police loughby, against and also Lee campus called assistance. (5) Ozbun, NDSU, ence; President of there and James was no evidence capacities, alleging claims provided their official false information ordered (6) and 42 for false Wishnatsky; under state law USC 1983 the officers sought also arrest. a declarato- liability defendants immune from policy ry judgment the NDSU capacities Wishnatsky’s individual unconstitutional. specifically claims. court did not ad- dress motions to amend his county or- On October court complaint, but entered dis- entry partial summary judgment dered missing all claims all defendants. claim, dismissing declaratory judgment Wishnatsky appealed.3 holding subject did not matter that it have jurisdiction declaratory judgment over

action, have did not II. that STANDARDS OF REVIEW constitutionality standing challenge the of to Summary judgment under trespass policy because never the he was procedural NDRCivP 56 is a for device the warning trespass issued a card under the expeditious disposition of controversies with policy.1 Wishnatsky from appealed has not when, viewing out a trial the evidence county ruling. the court’s light in the opposing most favorable to the The defendants then moved for party giving party that the benefit of all dismissing remaining judgment inferences, genuine favorable no there is is § claims law and 42 1983 under state USC sue of material fact or to inferences be drawn damages. Wishnatsky opposed for the mo- undisputed facts, only questions of sought complaint tion to amend to Wiedmer, Reiger law remain. v. 531 N.W.2d “supervisory authority” under assert claims 308, (N.D.1995); Shore, 310 Inc. North v. Johnson, § against 1983 Tim Lee and Rick (N.D.1995). Wakefield, 297, 530 299 N.W.2d counsel, in general NDSU’s for roles their party seeking summary judgment The bears developing implementing trespass the showing the initial burden of the absence motions, hearing policy. At on the Wish- the genuine Zueger issues of material v. fact. natsky orally complaint to amend his moved Carlson, (N.D.1996); 92, 542 N.W.2d 94 negligence allege gross by Willoughby to Co., Kary v. Prudential Insurance Bernd. 703, (N.D.1996). Once the mov N.W.2d burden, summary judg- ing party op The trial court2 ordered meets that initial the claims, remaining dismissing posing party allega ment the con- not rest mere , (1) cluding against the pleadings that claims the defen- tions or but denials must capacities competent in present dants their official were barred evidence es admissible (2) immunity; sovereign tablishing genuine claims a material issue of fact. against Zueger, explained could not be we asserted the defendants 542 N.W.2d 94. As (3) Shore, 299, capacities; in their if official North 530 N.W.2d at even a (4) arrested; exists, dispute summary judgment if Wishnatsky was not was ar- factual is rested, Willoughby appropriate if the law such that resolution Bernd had dispute change cause to believe had committed the factual will pres- misdemeanor criminal result. their trespass policy 1. The a tres- to NDSU authorized transferred district court. See 27-05- pass warning any 00.1; Zimbleman, card to be issued non- to re Estate 539 N.W.2d In legitimate campus. student without business on (N.D.1995); Agassiz 73 n. West Condominium warning persons they The advised card Solum, (N.D. v. 527 N.W.2d Association campus, to leave the and that would be 1995). judge proceedings same handled all subject trespassing to to arrest refused matter, county judge, first as a then after in this leave or returned. NDSU later amended the 1, 1995, January judge. as a district policy, Wishnatsky declaratory concedes his judgment moot. claim is 3.Wishnatsky challenge does not the court's dis- against all defendants in missal of claims January county

2. Effective courts capacities, their official and concedes all judgeships new were abolished and district court created, pending county against properly cases Ozbun were dismissed. claims court (N.D.1991). entry explained requires of sum N.W.2d As Rule (N.D. Anderson, to v. mary party who fails N.W.2d 1983), formal words arrest are not re dispute the existence of factual establish quired, must but circumstances exist of his claim that an essential element person to would cause a reasonable conclude prove Soentgen to trial. would have at a Clinic, P.C., that he under and not Quain free & Ramstad (N.D.1991). said, leave. Soentgen As pertinent an no evidence on essential element Although presented evidence presented motion for resistance conflict, trial court on this was in issue summary judgment, presumed no it is Wishnatsky, party opposing summary as the such evidence exists. judgment, is entitled all favorable infer Reiger, 531 at 310. In his the defendants ences. asserts affidavit, Wishnatsky says stated, Willoughby properly support failed motion name, you give your “If me summary judgment affidavit we are because taking you custody.” According Lee, into to his submitted was Tim chief affidavit, upon” the officers then “laid hands police. Wishnatsky argues that Lee had Wishnatsky, budding him out of the escorted personal no knowledge of occurrences car, patrol union, campus and took him to the made allegations student and his police Wishnatsky’s affidavit station. is suffi satisfy on information and belief not 56(e) an issue fact cient raise of about whether requirement of that affida- NDRCivP analy our purposes he was arrested. For of mo- support judgment vits in a remaining issues, on the we sis therefore personal tion knowledge. be made on Wish- light most view evidence favorable not therefore claims motion was Wishnatsky and assume that he ar properly supported and should have been rested. denied. agree might Wishnatsky We if Lee’s BERGQUIST IV. only presented affidavit was evidence Wishnatsky asserts the court erred in dis- however, case, support the In this motion. missing against Bergquist his claims because interrogato there were extensive answers to genuine his affidavit raised issues of material ries, signed Willoughby, sworn Bergquist’s fact about role in the arrest. Bernd, Bergquist, that set forth their Wishnatsky’s theory of the case is that at union.

versions of events the student Bergquist instigated providing his arrest interrogatories Answers be used the police false information to that resulted support summary judgment. a motion for in his arrest. 56(c); Kary, 541 at 705. NDRCivP N.W.2d properly Wishnatsky We made pri conclude motion asserts that “[a] supported, responsible instigating had the citizen for a then vate genuine to show material either burden issues of false arrest directs the ar provides fact. rest be or false information made occurring.” is material the arrest general This is a III. correct statement ARREST See, e.g., rule. v. First Johnson National assert, The defendants and the court con- Co., Bank & Trust 300 Neb. cluded, or not arrested (1980); Corp., Harrison v. Southland will, otherwise detained but vol- (Tex.Civ.App.1976); 544 S.W.2d untarily accompanied the officers to Lindahl, § Lee & Modern Tort Law 41.02 police Wishnatsky argues station. (rev. (Second) ed.1990); Restatement genuine his affidavit raises of material issues (1965); Landis, § Torts 45A cmt. c Annota fact whether he was arrested. about tion, Liability Imprisonment: False Pri arrest, Citizen, Calling an on For there must be a deten vate Police Assistance person by physical Trespass, tion means of force or Ar Disturbance False Ritter, (1980). authority. by Officer, § or show of State v. rest 98 A.L.R.3d 542 However, private merely belief, where citizen tion certainly upon specu- police summons assistance or to re conjecture. lation offense, port specifically an and does asserts, however, also that he request person sup that the nor arrested personal knowledge of Bergquist’s first information, ply liability false no for false telephone police call to because he was still Harrison, arrest arises. See 544 S.W.2d at present offices when 693; Landis, 2;§ 98 A.L.R.3d at 32 Am. Bergquist placed the call. He asserts that (1995). Imprisonment § Jur.2d False Bergquist’s call constituted “false informa- liability private And there is no where a tion” because he had no reason to make the merely provides citizen information to the record, call. The evidence in the including police and leaves the decision whether to Wishnatsky’s affidavit, shows to the officer’s and discre Bergquist campus called the police and re- Johnson, E.g., 13; tion. 300 N.W.2d at quested person assistance with a who refused Lindahl, 41.02; § Lee & Prosser & Kee to leave. Wishnatsky concedes that he re- ton, (5th ed.1984); § Torts Restatement fused to leave the being office after asked to (Second) Torts, c; 45A emt. see also do so. Baer, (N.D. Larson v. There support is no for Wishnatsky’s as- (there 1988) liability pros is no for malicious sertion that Bergquist’s call constituted private ecution if merely gives citizen au “false information” because had no thorities information he believes to be true 12.1-22-03(4) reason to call. Part of NDCC prosecute leaves the decision to declares: discretion). officer’s person A guilty of a B class misdemean- affidavit, claims that his person or if remains the proper- fight when viewed in the most favorable to ty of being another after requested to him, genuine raises issues of material fact property by leave duly the authorized Bergquist provided whether false informa person. police. tion to the The “evidence” in Bergquist justified in calling campus po- Wishnatsky’s directly point affidavit on this lice for person assistance with a who refused Wishnatsky’s version of ques the officers’ office, to leave the and his actions did not tioning: give false information.4 “Why you questioning are me about this?” Although upon by Wishnatsky not relied I Thinking asked. it I over later realized issue, argument for his on this we note his that Bergquist Mr. painted must have suggests affidavit that the officers mentioned rather lurid over-imaginative picture Bergquist’s describing involvement. In the happened of Spectrum what had in the officers, questioning by Wishnatsky’s af- during office our Knowing visit. his excit- fidavit states that the officers asked if he had why able tendencies I could understand legitimate campus; replied by business on acting peculiar, officers were so but I asking why they asking him rather than thought it rather naive of them to take his people lounge; other Willough- SOTA statements at face value. by purportedly responded, request “on that Wishnatsky’s speculation assertions are rank Bergquist Mr. asked me to.” Without con- conjecture and, lacking personal knowl- sidering hearsay problems relying edge Bergquist’s about statements upon that proof Bergquist statement as that officers, have no function in an affidavit for question Wishnatsky, asked the officers to it summary judgment. Wishnatsky As himself does not evidence Bergquist instigated that cogently pointed out in challenging affi- Lee’s or demanded arrest. davit, 56(e) an affidavit under NDRCivP upon personal must be made knowledge. showed, The record before the trial court upon most, Statements not be made informa- Bergquist police at that called the leave, Wishnatsky 4. any does not Bergquist assert that he had offices after asked him to right under statute to remain in the 1021, (1994); Malley v. 127 L.Ed.2d person who refused to leave with a assistance 340, 1092, 335, Briggs, no 475 U.S. 106 S.Ct. There is Spectrum offices. evidence 1095, (1986); Klindtworth v. 89 L.Ed.2d Wishnatsky Bergquist that demanded 176, 180 (N.D.1991). Burkett, 2n. arrested, conveyed any 477 N.W.2d false infor- or that he immunity qualified primary purpose police. It was incumbent mation to inter protect public officials from undue and, be- supply that evidence potentially duties and from ference with their so, we must no he failed to do assume cause Elder, liability. 510 U.S. disabling threats of Soentgen, 467 evidence exists. See such 1022; 513-14, 114 Habig at see also S.Ct. of claims Dismissal 77. (8th 289, City Fargo, v. er F.3d appropriate. of (“The Cir.1996) qualified immunity doctrine BERND WILLOUGHBY AND V. so allows to make reasonable errors always ‘err on the side that the court erred asserts ” caution,’ citing Bryant, Hunter v. 502 U.S. dismissing against Willoughby claims 537, 534, 229, 112 116 L.Ed.2d 589 S.Ct. capacities. The in their individual Bernd (1991)). explained Livingood weAs gave reasons for trial court several dismissal Meece, (N.D.1991), this 477 N.W.2d claims, concluding that recognizes government doctrine need for arrested, arrested; he was was not harassing officials lawsuits to be free arrest; probable cause to there liability apprehension personal and from by qualified and protected the officers were authority they reasonably exercise statutory immunity. performing duties discretion while earlier, purposes we said we assume As public interest. Wishnatsky was appeal this arrested. need determine whether the officers We qualified immunity assessing In to arrest be- cause claims, objective apply an standard to we that, if probable even cause we conclude legal determine the reasonableness immune lacking, cause was the officers are action. Anderson v. challenged official See under facts in this from suit Creighton, 483 U.S. S.Ct. case. Klindtworth, 3038-39, (1987); L.Ed.2d addressing parties’ immunity Before Qualified at 180 2. n. 47 arguments, we the context. Wishnat- outline analysis requires to con immunity the court sky argues that was arrested in violation in the context operation sider the rule 29-06-15(1) for a misdemeanor of NDCC the offi of the circumstances confronted presence. in the officers’ His ar- committed Dasovick, 386, cial. Ennis v. gument premise is the mistaken based (N.D.1993); Livingood, 477 N.W.2d at 393 alleged him for that the officers arrested (Hunter demonstrates, v. 194. Precedent Spec- to leave the he refused 224, 228, 112 534, 537, Bryant, 502 U.S. S.Ct. offices, the officers arrived. trum before (1991); v. Bridgewater 116 589 Ca L.Ed.2d Willoughby assert and Bernd Wishnat- (8th Cir.1994); 1447, pies, 23 1449 Ar F.3d trespassing sky was arrested (8th 121, Mataya, v. F.2d 123 Cir. nott 995 lounge, trespassing in the SOTA not for 1993)), immuni question qualified They assert offices. ty ordinarily of law the court to one lounge probable actions SOTA created decide. violating cause to believe he was 12.1-22-03(3) by trespass in a misdemeanor immunity qualified Because “ presence. their immunity suit than a mere ‘an rather ” Lability,’ defense the United States Su Qualified Immunity A. “repeatedly ... preme has stressed Court importance resolving immunity ques law-enforcement officials litiga possible stage in qual § tions at the earliest under for false arrest have sued 1983 Hunter, 227, at at immunity tion.” 502 U.S. 112 S.Ct. v. Hol ified from suit. See Elder 511-12, 1019, original) Mitchell 510, (emphasis (quoting 114 536 loway, 510 U.S. S.Ct.

401 511, 526, 2806, Forsyth, pra, U.S., 105 527-529, U.S. S.Ct. S.Ct., at at (1985)). 2815, Second, 86 L.Ed.2d If the chal 2815-2817. the court should ask lenged agents actions are ones reasonable officer whether the acted reasonably under lawful, circumstances, have settled law in could believed were the claims reasonable, whether discovery should be dismissed before another and on or more rea- sonable, Anderson, interpretation judgment, possible. if of the events can be 2, years constructed 488 U.S. at 640 n. 646 n. five 107 S.Ct. at the fact. 6; Mitchell, 3039 n. 3042 n. at law, U.S. Under settled Secret agents Service 526, 105 Mitchell, at S.Ct. 2815. As 472 U.S. Hunter and Jordan are entitled to immuni at at explained, ty S.Ct. if a reasonable officer could have be Klindtworth, 178, reiterated, 477 N.W.2d at probable lieved that cause existed to arrest qualified immunity Bryant. is an entitlement not to Probable cause if existed “at the litiga stand trial or face the other burdens of moment the arrest was made ... the facts tion, effectively and it is lost if a case is and circumstances within knowledge erroneously permitted go to trial. and of which had reasonably trust worthy information were sufficient to war For false arrest claims prudent rant a man in believing” that officers, law enforcement the United States Bryant had violated 18 U.S.C. 871. Supreme employs Court a broad formulation Ohio, 89, 91, Beck v. 379 U.S. 85 S.Ct. qualified immunity. The Court’s decision 225, 13 (1964). L.Ed.2d 142 in Hunter illustrates this. Secret Service Hunter, 227-228, at U.S. 112 S.Ct. at agents Hunter and Jordan were sued analyzing 536-537. After facts Bryant alleged improper for an arrest with record, the Court concluded: probable out cause. The Court summarized These facts establish that the application qualified immunity in this agents Secret Service quali are entitled to context: immunity. assumed, fied Even we ar- qualified immunity Our cases establish that guendo, they {and magistrate) agents shields Hunter and Jordan from concluding erred in probable cause damages suit for if “a reasonable officer Bryant, existed to arrest agents never [Bryant’s could have believed arrest] theless qualified would be entitled to im lawful, light clearly established law munity because their decision was reason [arresting] and the information the able, Anderson, even if mistaken. supra, possessed.” Creighton, Anderson v. U.S., 641, 107 S.Ct., at 3040. 635, 641, 3034, 3040, U.S. 107 S.Ct. qualified immunity “gives standard (1987). L.Ed.2d 523 Even law enforce ample room for judgments” by mistaken “reasonably ment officials who but mistak protecting plainly “all incompetent but the enly conclude that pres cause is knowingly or those who violate the law.” immunity. ent” are entitled to ... Ibid. Malley, U.S., supra, 475 ... Appeals’ The Court of confusion is S.Ct., at 1096. This accommodation evident from its statement that “[w]hether for reasonable error exists because “offi a reasonable officer could have believed he always cials should not err on the side of probable had question cause is a for the caution” they being because fear sued. fact, trier of summary judgment ... Scherer,] [183,] 196, 104 [v. Davis 468 U.S. probable proper based on lack of cause is [1984], [3012,] S.Ct. 3020 L.Ed.2d [82 139] only if there is one reasonable conclu Hunter, 228-229, at U.S. S.Ct. at jury sion a [Bryant could reach.” v. Unit employ analysis 537. We must the in same Treasury Department,] ed States 903 F.2d this case. [(9th Cir.1990) [717,] 721 ]. This state wrong ment of Qualified law is for two immunity require reasons. does that First, routinely places was, it question fact, the probable of there in cause to arrest. immunity Arnott, in jury. E.g., 1449; the hands of the Immu Bridgewater, 23 F.3d at nity ordinarily by should be decided by 995 F.2d at 123. As summarized long Mitchell, Sears, Co., court before trial. See su- court in Sanders v. Roebuck & Cir.1993): (8th fitting description of mat- cers that a man “What F.2d seeking immunity inquiry one in the SOTA is wheth- was qualified in a ters lounge. approached The officers Wishnat- have could believed a reasonable officer er name, sky, sought Habiger repeatedly asked to be See also the arrest lawful.” (“ legitimate on cam- whether he had business City Fargo, 80 F.3d at issue ‘[t]he answer, pus. immunity probable When refused purposes is not cause cause,’ the officers informed him that NDSU arguable probable ... that in fact but They gave copy him a is, policy. whether the officer should have known quoted clearly trespass policy that NDCC 12.1-22- plaintiffs arrest es- that the violated omitted)). 03(3), (citations him trespass warning showed right, tablished you card “I Accordingly, and Bernd im- that stated: must ask leave Willoughby are you university campus if refuse or if could mune from suit a reasonable officer trespassing.” you return be arrested for probable cause to have there was believed give refused his name Wishnatsky. still or arrest explain why he was there. Willoughby urge Bernd that facts, On the officers these justified arresting Wishnatsky they were in reasonably could have that believed Wishnat- trespass under NDCC for misdemeanor sky lounge refused to leave student des 12.1-22-03(3) for in his actions the SOTA ignated by older-than-average stu for use lounge presence. part in their The relevant university being dents advised he 12.1-22-03(3) declares: of NDCC privileged being was be there B person guilty A of a class misdemean- given trespassing. that he notice See if, knowing person li- or is not 12.1-22-03(3). if NDCC Even we assume so, privileged person or to do censed Willoughby Bernd erred conclud any place or as to which enters remains probable arrest, ing cause to that there given against trespass by actual notice mistaken, decision, their was reasonable. person communication to the actor Hunter, 228-229, 112 at See 502 U.S. S.Ct. at charge premises or autho- other mistaken, 537. If did not conduct re in a person posting rized or manner plain knowing incompetence flect or a viola reasonably likely to come attention Hunter, tion of at the law. See 502 U.S. intruders.... 537; Anderson, at U.S. at S.Ct. 29-06-15(l)(a) a police authorizes of- Section 3038; Malley, 475 U.S. S.Ct. ficer to arrest a misdemeanor committed that, at 1096. We conclude under S.Ct. presence: officer’s circumstances, these a reasonable officer officer, A law enforcement without a war- could have believed there cause rant, may person: arrest a trespassing. Ac offense, public a. For a committed or at- cordingly, Willoughby are im and Bernd tempted presence; in the officer’s and for Wishnatsky’s § mune suit on from subdivision, purpose of this a crime claims. attempted must be deemed committed presence in the officer’s what Statutory Immunity B. through officer observes the officer’s Willoughby and Bernd assert reasonably senses indicates the officer 32-12.1-15(2) immune under are that a crime was in fact committed or liability Wishnatsky’s on claims for false attempted presence by the officer’s ruling agreed, arrest. The trial court person arrested. required Wishnatsky plead had failed to The evidence this case shows immunity culpability level to avoid the officers to the Spectrum that the were called employees to state under the stat accorded investigate complaint gen- offices to a that a ute. requested tleman would leave when to incident, 32- At time of this discussing so. While the incident with 12.1-15(2) Bergquist, another student informed the offi- declared: employee No of the state be held trespassing. If a reasonable officer employee’s personal capacity liable in the could have believed that the arrest was occurring lawful, for actions omissions within their actions cannot gross constitute scope employee’s employment negligence. As First Interstate Bank v. unless such actions or Rebarchek, omissions constitute (N.D.1994), 511 N.W.2d grossly conduct, negligent reckless or mal- explained, a trial court does not abuse its feasance, or willful or wanton misconduct. by denying discretion requested amend- ment that would be futile. Wishnatsky plead grossly did not reckless or conduct, malfeasance, negligent or willful or We conclude that the trial court did not err by Willoughby wanton misconduct or Bemd. in ruling that Willoughby and Bernd were allege Nor does he acting were not statutorily immune from suit on Wishnat- scope within employment of their sky’s state law claims. Indeed, arrested him. Schloesser v. Larson, (N.D.1990) N.W.2d VI. MOTION TO AMEND (.overruled grounds by on other Bulman v. Wishnatsky asserts that the trial court Co., Hulstrand Construction N.W.2d failing grant erred in to his motion to amend (N.D.1994)), that, plaintiff ruled when a fails complaint § to add claims under plead to culpability sufficient level of to against campus police chief Tim Lee and grant immunity avoid the to a state em- university counsel Rick Johnson in their indi- ployee, summary judgment ap- dismissal is capacities vidual for “supervisory liability.” propriate. The basis for Wishnatsky’s these claims is hearing At the on summary the motion for assertion that Lee and Johnson developed judgment, Wishnatsky orally moved to implemented allegedly unconstitu- complaint plead gross negli- amend trespass policy. tional We find it unneces- gence by Willoughby and Bemd. The dis- sary to address the merits of specifically trict court did not rule on the oral asserted supervisory-liability claims because motion, judgment dismissing but was entered this record policy establishes that all claims. asserts that trial actually applied never Wishnatsky. failing grant court erred in his oral motion court, trial granting The partial sum- that, to amend. We conclude even Wish- mary judgment, held that had no natsky had been allowed to amend his com- standing challenge constitutionality plaint allege gross negligence by Willough- trespass policy because he had never Bernd, summary judgment would still trespass been issued a warning card and the appropriate on this record. policy applied had not been to him. Wish- negligence Gross is defined as “the want of appeal partial did not summary slight diligence.” care and NDCC 1-01-17. judgment, challenge nor otherwise that de- gross This court has negligence construed termination. all, mean “no care at or the omission of such record on demon- care which even the most inattentive and strates that the officers did not issue a tres- thoughtless seldom fail to make their con pass warning Wishnatsky. card to Further- cern, evincing a temperament reckless more, we have concluded that care, practically lack of willful in its nature.” has no alleged 1983 claim based Schloesser, 458 (quoting Wy N.W.2d at 260 false arresting arrest because the Collette, (N.D. soski v. 126 N.W.2d reasonably could have believed there was 1964)); see v. Ahlberg, also Jones cause to arrest for mis- (N.D.1992); Bjerke trespass demeanor under NDCC 12.1-22- Heartso, (N.D.1971). 03(3), regard without to the NDSU This definition controls here. policy. already We have concluded that a rea- position circumstances, sonable officer Willough- Under these where by and Bernd alleged could have believed there policy unconstitutional was not cause to applied Wishnatsky, to he has no claim for Higher liability university with Board of against offi Consistent the State

supervisory address, policy, inaugural in developed implemented the his and Education cials who president noted, spoke new “colla- it is not an N.D.S.U.’s previously policy. As gown” and efforts between town and deny requested a borative discretion to abuse proclaimed: In futile. First that would be amendment Bank, We con at 243.

terstate qualified professionals who “Through well in district did not err that the court clude complete programs, our more academic pleadings of the fading to allow amendment coatings hardy potatoes, for air- better claims supervisory-liability add perfor- planes, fine arts exhibitions and Johnson. Lee contests, and athletic mances cultural, and eco-

serves as educational engine for the citizens we serve.” nomic VII. CONCLUSION Inaugural Address of President Thomas arguments have considered the other We 26,1996. April Plough, to be by parties and find them made encourages public to visit N.D.S.U. summary merit. We affirm the without Union, Gallery Memorial view art dismissing Wishnatsky’s claims. throughout in “exhibited the Me- collections Union,” purchases make morial NEUMANN, WALLE, C.J., and VANDE Mart, Varsity university bookstore. J., concur. Days publicly hours disseminated are LEVINE, J., a BERYL J. member See, e.g., beyond campus. heard, not this did Court when case was Internet). (via http://www.ndsu.nodak.edu/ in this participate decision. Wishnatsky went of the cam- to the office J., MARING, Union, not pus newspaper, MARY MUEHLEN in Memorial located ease was why of the Court when this a member find out his advertisement participate in this decision. clearly conveyed and did published. heard He his been Bergquist. Wish-

purpose to the defendant challenged treatment the different SANDSTROM, Justice, dissenting. message advertisement because of its his —a and rea- we consider the evidence When challenge supported by the recent United light most favorable sonable inferences Capitol Supreme Sq. Court decision States Wishnatsky, as we must when — Pinette, -, Bd. v. Review U.S. him, granted against this judgment has been (1995) (public 132 L.Ed.2d 650 S.Ct. Wishnatsky, very troubling a citi- is a case. equal generally available on forums must be Dakota, arrested while zen of North terms). Unhappy chal- sitting lounge in the North peaceably lenge, Bergquist demanded University Memorial Union Dakota State leave, police. and then After called regular was arrested during its hours. He left, Bergquist made sure the trespass supposedly criminal because where him. officers knew to find “privileged” there. Most was not to be discovery responses, the In their probably Dakotans be shocked North would university’s Trespass Loitering and gave the privileged to be to be told were not Policy responding. as their sole basis public uni- peacefully in the areas of a state demanding Wishnatsky name For versity campus during hours. In- reasonable information, they again stated other deed, the official of North mission statement following Trespass Loitering University, approved Dakota State Policy. alleges, and we must Higher Board of on Novem- State Education review, this as true for he was arrested take “Accessible, proclaims: respon- ber noncompli- on his for criminal based sive, people accountable university policy. with the ance State, University Dakota fosters North valid, Assuming university policy was prosperity their economic and contributes terms, it was not violated. The quality of its own their overall life.” Loitering Trespass Policy” pro- case, “NDSU this not be dealt with through the vides: use of authority “unbridled” by exercised complaint

“When a school received that an officials on constitutionally protected building speech. Sheeter, individual has not indicated to 624, Smith v. F.Supp. business, (S.D.Ohio any, staff what 1975); intends Indiana, Grody he/she See v. to transact and 651, the individual refuses to (1972). Ind. 278 N.E.2d (two leave, possible) officer whenever will: University regulation The must be “a means [steps to be taken enumerated].” narrowly tailored to achieve the desired ob- jective.” Trustees, Fox, Board S.U.N.Y. v. predicate The policy to the actions is that 469, 480, 492 U.S. 109 S.Ct. person not has indicated his business and (1989). L.Ed.2d 388 “The place, nature of a (not or) refuses to leave. pattern activities, ‘the of its normal dictate clearly Bergquist. indicated his business to regulations time, kinds of place, and Bergquist falsely reported If that Wishnat- ” manner that are Grayned reasonable.’ v. sky business, had not stated his respon- he is City Rockford, 104, 116, 408 U.S. 92 S.Ct. instigating sible for If false arrest. (1972). L.Ed.2d officers, told the then could good not in faith university have relied on the I would reverse and remand on the causes policy. of action Bergquist and arresting majority The disingenuously then states: capacities. individual facts, “On these the officers reasonably could have believed that Wish- lounge refused to leave the student

designated by for use older-than-average university students of the being ad- privileged

vised he was not to be there and

being given trespass- notice that he was

ing.” added.) (Emphasis statute, however, The Dakota, STATE of North Plaintiff not person being violated told he was Appellee privileged, person unless the inwas fact privileged nothing be there. There is v. empowering the officers to create a lack of here, privilege except university policy, Leroy SCHNEIDER, Defendant which was not violated. Appellant. North long Dakota has a tradition of allow Criminal No. 950368.

ing public members of college on its university campuses. Generally, North Dak- Supreme Court of North Dakota. privileged, basis, otans are equal on an to be public campuses areas of our at times May 29, 1996. open public. those areas are See University Comment: The and the Public: Bight Access Nonstudents to Uni

versity Property, 54 Cal.L.Rev. 166-67

(1966). trespass policy, Even without a

colleges and universities are entitled to deal disruption of their reasonable function See,

ing. e.g., §§ N.D.C.C. 12.1-08-01

(Physical government obstruction of func

tion), and (Preventing 12.1-08-02 arrest or duties).

discharge of other See also Arnold State, (Tex.Cr.App. S.W.2d 545-46

1993). Disruption, if any indeed there

Case Details

Case Name: Wishnatsky v. Bergquist

Court Name: North Dakota Supreme Court

Date Published: May 29, 1996

Citation: 550 N.W.2d 394

Docket Number: Civil 950172

Court Abbreviation: N.D.