Hardtke v. City of East Grand Forks

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Amber Hardtke,                        File No. 21-cv-02733 (ECT/LIB)      

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

City of East Grand Forks; Lieutenant Rod                                  
Hajicek and Sergeant Tony Hart, in their                                  
individual and official capacities,                                       

     Defendants.                                                     


Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis, MN, for 
Plaintiff Amber Hardtke.                                                  

Joseph E. Flynn and Vicki A. Hruby, Jardine Logan & O’Brien PLLP, Lake Elmo, MN, 
for Defendants City of East Grand Forks, Lieutenant Rod Hajicek, and Sergeant Tony Hart. 


In January 2020, officers with the East Grand Forks Police Department attempted 
to execute arrest and search warrants in a residential treatment center.  Plaintiff Amber 
Hardtke was the center’s treatment director.  The officers thought that Hardtke was not 
cooperative in responding to the warrants, so they arrested and charged her with obstructing 
legal process.  In this case, Hardtke claims that Defendants—the City of East Grand Forks 
and the two arresting officers—violated her federal constitutional rights and committed 
torts under Minnesota law.                                                
Two motions require adjudication: (1) Defendants seek summary judgment outright.  
The officers say that qualified immunity shields them from liability for Hardtke’s federal 
constitutional claims.  The City says Hardtke lacks evidence to show that its training of the 
officers was constitutionally deficient.  Defendants also say that Hardtke lacks evidence to 
support her state-law claims and that, if she had evidence, Minnesota’s official-immunity 

doctrine would bar the claims.  (2) Hardtke seeks partial summary judgment in her favor 
on just the federal qualified-immunity question.                          
The result is a mixed bag.  Because the officers violated a clearly established Fourth 
Amendment right, Hardtke’s motion will be granted, and Defendants’ motion will be 
denied,  as  to  Hardtke’s  individual-capacity  constitutional  claims  against  the  officers.  

Because Hardtke has not shown the City of East Grand Forks was deliberately indifferent 
in  its  training  of  the  officers,  Defendants’  motion  will  be  granted  as  to  Hardtke’s 
constitutional claim against the City.  Because they are the subject of genuine, material 
facts disputes, Defendants’ motion will be denied as to Hardtke’s state-law tort claims.  
                           I1                                        

K.H. is in jail, facing felony charges and subject to a no-contact order.  The parties’ 
suit-prompting conduct centered around a non-party who will be referred to by just her 
initials, K.H.  As of January 2020, K.H. was jailed on a felony charge pending in Stearns 
County, Minnesota District Court.  ECF No. 90.  At the same time, she was subject to a 
Stearns County District Court order forbidding her from having contact with an individual 

who also will be referred to by his initials, B.L.  See ECF No. 100 at 7. 



1    Unless noted otherwise, the facts are undisputed.  Fed. R. Civ. P. 56(a). 
K.H. is released to a residential drug treatment facility.  On January 17, the Stearns 
County District Court ordered K.H. released to a residential drug treatment facility—
Douglas Place, in East Grand Forks, Minnesota.  ECF No. 94 at 5.  Douglas Place was at 

that time (and evidently still is today) operated by Meridian Behavioral Health.  See ECF 
No.  132-1  at  60;  see  also  Douglas  Place,  Meridian  Behavioral  Health, 
https://www.meridianprograms.com/program/douglas-place (last visited Dec. 16, 2024).  The 
court  ordered  K.H.  to  “sign  releases”  and  follow  Douglas  Place’s  treatment 
recommendations.  ECF No. 90.                                             

K.H. violates the no-contact order, and a St. Cloud Police Department officer, 
Susan Proshek, investigates.  On January 21, B.L. reported to St. Cloud police that K.H. 
had communicated with him in violation of the no-contact order.  ECF No. 100 at 7.  That 
same  day,  St.  Cloud  Police  Department  Officer  Susan  Proshek  met  with  B.L.  and 
investigated his report.  Id.  B.L. explained to Officer Proshek that he had received several 

documents K.H. sent by mail, including instructions for how B.L. could lift the no-contact 
order.  Id.  B.L. also reported receiving a telephone call that morning from K.H. during 
which K.H. asked B.L. to “drop” the no-contact order.  Id.                
Officer Proshek determines that K.H.’s telephone call originated from Douglas 
Place.  B.L. told Officer Proshek that K.H.’s call had come from a number in the (218) 

area code ending in 4000, and Officer Proshek observed this number displayed on B.L.’s 
phone.  Id. at 7; see also ECF No. 98 at 6–7.  Officer Proshek determined the number was 
associated with Douglas Place.  ECF No. 100 at 8; see also ECF No. 98 at 6–7. 
Officer Proshek notifies Douglas Place of K.H.’s no-contact-order violation and 
that the violation originated from there.  Officer Proshek called Douglas Place’s main 
number and was transferred to a counselor, Kristen Leintz.  ECF No. 100 at 8.  Leintz did 

not answer, so Officer Proshek left a message explaining that K.H. had placed a call that 
morning from Douglas Place to an individual who had a no-contact order against K.H.  
ECF No. 102 at 3.  Leintz returned Officer Proshek’s call that afternoon.  ECF No. 100 at 
8.  Leintz told Officer Proshek that the number appearing on B.L.’s phone was connected 
to a nurse’s station within Douglas Place.  Id.  Leintz explained that K.H. had asked to 

make telephone calls that morning.  Id.  Leintz acknowledged allowing K.H. to make the 
calls, though she claimed not to know who K.H. was calling.  Id.          
Officer Proshek notifies K.H.’s probation officer of the no-contact-order violation.  
The next morning, on January 22, Officer Proshek notified K.H.’s supervising probation 
officer, Michael Gilhoi, of K.H.’s no-contact-order violations.  ECF No. 94 at 2.  Gilhoi, 

in turn, telephoned Leintz and informed her of the possibility that a warrant might be issued 
for K.H.’s arrest.  ECF No. 102 at 4.  Gilhoi explained to Leintz that K.H. posed a flight 
risk and asked that K.H. not be told of the possibility she might be arrested.  Id. at 4–5; see 
ECF No. 94 at 3–4.  No record evidence shows that anyone at Douglas Place alerted K.H. 
of the possibility a warrant might be issued or that she might be arrested in response to 

Gilhoi’s call.                                                            
K.H.’s probation officer issues an apprehension-and-detention order.  That same 
day (January 22), Gilhoi issued an “Apprehension & Detention Order” (or “ADO”) for 
K.H.  ECF No. 136.2  In the order, Gilhoi represented that K.H.’s “temporary detention . . . 
[was] necessary to ensure community safety and . . . prevent escape.”  Id.  Gilhoi asked the 
East Grand Forks Police Department to execute the detention order.  See ECF No. 135. 

East Grand Forks police officers attempt to detain K.H.  Just after 4:30 p.m. on 
January  22,  East  Grand  Forks  Police  Corporal  Jacob  Thompson  and  Officer  Gilbert 
Trevino were dispatched to Douglas Place to apprehend and detain K.H.  Id.  Things did 
not go smoothly.  After entering the Douglas Place lobby, Corporal Thompson announced 
that he and Officer Trevino had “a probation ADO for somebody.”  ECF Nos. 124 at 1, 

133 at 0:39–0:41.  The officers spoke initially with a Douglas Place supervisor, Carly 
Carlson, and identified K.H. as the detention order’s subject.  ECF Nos. 124 at 1, 133 at 
0:47–0:51.  Carlson left the lobby to find K.H.  ECF No. 133 at 0:58–1:02; ECF No. 132-2 
at 52.  The officers did not object or express any concern about Carlson leaving the lobby 
alone to find K.H.  ECF No. 133 at 0:58–1:02.                             

Hardtke tries but fails to convince K.H. to surrender to the officers.  After a short 
time, Hardtke became involved.  ECF No. 133 at 1:35–46.  A staff member told Hardtke 
the officers were on site “to pick up somebody and Carly is looking for her.”  ECF 
No. 132-2 at 52.  Hardtke left to assist Carlson.  Id.  Hardtke and Carlson located K.H.  Id. 
at 52–53.  Hardtke spoke with K.H. for five or ten minutes.  Id. at 53.  Though Hardtke 

encouraged K.H. to “come with [Hardtke] and address her warrant,” K.H. ultimately 


2    The  apprehension-and-detention  order  cited  several  Minnesota  statutes  as 
supporting its issuance.  ECF No. 136.  No one claims Gilhoi lacked authority to issue the 
order or that the order was deficient in any respect.                     
refused.  Id. at 53–54.  As Carlson explained, K.H. “just was adamant that she was not 
going to go, she did not want to fulfill cleaning up her warrant at that time.  So we weren’t 
going to budge the situation much more.”  ECF No. 96 at 5.                

Hardtke refuses to tell the officers whether K.H. is on site.  Hardtke returned to the 
lobby to speak with the officers.  ECF No. 133 at 17:10–19.  After confirming the officers 
possessed a detention order, Hardtke informed the officers that neither she nor anyone else 
at Douglas Place could “confirm or deny that the patient’s here.”  ECF No. 124 at 6; ECF 
No. 133 at 17:19–17:30.                                                   

Officers obtain Hardtke and Carlson’s identifications to refer them for possible 
obstruction charges.  Corporal Thompson told Hardtke that he and Officer Trevino knew 
K.H. was on site, and he asked Hardtke and Carlson to produce identification.  ECF No. 
124 at 6; ECF No. 133 at 17:19–18:52.  Corporal Thompson explained that he intended to 
“forward” a description of the evening’s events to the county attorney for a possible 

obstruction charge.  ECF No. 124 at 6; ECF No. 133 at 17:19–18:52; see ECF No. 135 
(indicating in Corporal Thompson’s report that “both Hardtke and Carlson were informed 
that [the officers] would be submitting a report to the prosecuting attorneys [sic] office for 
charges of obstruction”).  Hardtke gave Corporal Thompson her name and role, along with 
Carlson’s, ECF No. 124 at 9–10; ECF No. 133 at 24:35–25:06, and the officers recorded 

information from Hardtke and Carlson’s North Dakota drivers’ licenses, ECF No. 133 at 
26:18–27:27; ECF No. 139 at 2.                                            
Hardtke cites federal law as the basis for her refusal to tell the officers whether K.H. 
is on site.  Before producing her identification, Hardtke told the officers that “CFR Part 
42” forbade her and other Douglas Place employees from disclosing the identity of any 
person receiving treatment at the facility.  ECF No. 133 at 23:46–24:00.  
K.H. absconds from Douglas Place.  Later that evening, after the officers and 

Hardtke had left the facility, K.H. absconded.  She left through an unlocked “smoking 
door” against staff advice.  ECF No. 132-2 at 58–59; see also ECF No. 137 at 2 (“It was 
reported that patient left this facility against staff advice around 10pm.  A peer reported 
that she saw [K.H.] getting into a truck and the truck drove off property.  Staff discovered 
that she was no longer in her room and she had made her bed so it looked like she was still 

in it.”).  Early the next morning, police found K.H. intoxicated at a bar in Grand Forks, 
North Dakota.  ECF No. 137 at 2.                                          
A warrant is issued authorizing a search of Douglas Place for K.H.’s intake and 
discharge records.  The next day (January 23), East Grand Forks Police Department 
Sergeant Tony Hart applied for a warrant to search Douglas Place for “[i]ntake and 

discharge paperwork for [K.H.].”  ECF No. 139 at 1; see id. at 3 (showing signature and 
date).  To support the application, Sergeant Hart attested: (1) that K.H. had been violating 
a no-contact order; (2) that a Douglas Place counselor had confirmed with K.H.’s probation 
officer that K.H. was at Douglas Place; (3) that officers had been dispatched to Douglas 
Place to apprehend K.H.; (4) that Hardtke told the officers “they cannot confirm or deny 

that [K.H.] is there”; and (5) that K.H. “signed out from [the] facility” after the officers 
left.  Id. at 2–3.  A Polk County District Judge issued the requested warrant the same day.  
Id. at 4–5.  The judge determined that K.H.’s “[i]ntake and discharge paperwork . . . 
constitutes evidence which tends to show a crime has been committed, or tends to show 
that a particular person has committed a crime.”  Id. at 4.               
Officers arrive at Douglas Place with the warrant.  Early in the afternoon of January 

23, Sergeant Hart and a second East Grand Forks Police Department officer, Detective 
Lieutenant Rodney Hajicek, arrived at Douglas Place to execute the warrant.  ECF No. 138 
at 1.  Sergeant Hart approached a person at the front desk and announced he had a search 
warrant for K.H.’s intake and discharge papers.  Id.  Sergeant Hart handed a copy of the 
warrant to a Douglas Place employee, Jaime Zuniga.  Id.  Zuniga, in turn, gave the warrant 

to Hardtke.  ECF No. 132-2 at 61–62.                                      
Hardtke (and other Douglas Place personnel) refuse to give the officers records 
described in the warrant.  Hardtke sent the warrant to Douglas Place’s compliance officer, 
Emily Peach, who told Hardtke that federal law prohibited disclosure of the information 
described in the warrant and that the warrant did not override federal law.  Id. at 62, 65.  

Hardtke directed a nurse manager to give the officers a form summarizing the facility’s 
obligations under the Code of Federal Regulations, Title 42.  Id. at 60–61.  The form, 
entitled “Confidentiality of Alcohol and Substance Abuse Programs,” was created by 
Meridian.  ECF No. 132-4.  Among other things, the form said: “A court order . . . may 
not authorize an employee who has received patient identifying information without 

consent to disclose that information for any reason, including to conduct any criminal 
investigation or prosecution of a patient.”  Id.  Hardtke also told the nurse not to give the 
officers records described in the warrant because K.H. had not consented.  ECF No. 132-2 
at 61–62.  After some back and forth with the nurse, Sergeant Hart asked to speak with the 
nurse’s boss, who turned out to be Hardtke.  ECF No. 138 at 1; ECF No. 132-2 at 62.  
Hardtke refused to produce the records; she explained her understanding that the warrant 
did not override Title 42, and she told Sergeant Hart that Douglas Place’s compliance 

officer had confirmed this understanding.  ECF No. 132-2 at 62.           
The officers contact city and county attorneys’ offices.  Sergeant Hart telephoned 
Crookston City Attorney Tanner Holten.  ECF No. 138 at 1.  (The East Grand Forks City 
Attorney was unavailable, and Holten was serving in a back-up capacity.  Id.)  At the call’s 
beginning, Sergeant Hart asked Holten whether he could arrest Hardtke for failing to 

comply with the warrant.  ECF No. 134 at 15:50–16:15 (“We got search warrants approved 
and the director is failing to comply.  Can we arrest her?”).  Sergeant Hart said he needed 
to “make a point here” and that he wanted to “lock her up.”  Id. at 17:28–17:35.  Holten, in 
turn, telephoned Polk County Assistant Attorney Clifford Wardlaw.  ECF No. 138 at 1.  
Wardlaw asked to speak with Hardtke, and Sergeant Hart put his phone on speaker.  Id.  

Wardlaw explained to Hardtke that he believed her refusal to produce records reflected an 
incorrect understanding of the law.  ECF No. 134 at 26:07–27:07.3  Wardlaw then asked to 



3    Wardlaw told Hardtke, “I’ve kind of run into this with your facility before, about 
the lack of cooperation with law enforcement and making claims that, HIPAA prevents 
this, HIPAA prevents that.  And so one of the things that we’re doing is getting search 
warrants for material that should have just been provided because it’s information that’s 
already known to probation.  So, that’s why the search warrant was sought.  And I’m not 
aware of anything that would prevent you from complying with a valid court order.  Now 
you tell me there’s a federal law, and I was a federal prosecutor for twenty-two years and 
I’m not aware of any federal law that would prevent the release of information pursuant to 
a court order.”  ECF No. 134 at 26:07–27:07.                              
speak with Peach.  ECF No. 138 at 1.  After speaking with Peach, Wardlaw advised 
Sergeant Hart to arrest Hardtke.  Id.                                     
Hardtke is arrested.  After some delay, a female officer arrived to transport Hardtke.  

ECF No. 132-2 at 66–67.  While waiting for the officer to arrive, an unidentified person 
asked why Hardtke was being arrested, to which Sergeant Hart replied, “Obstructing, 
interference with the legal process, whatever.”  ECF No. 134 at 34:40–34:50.  Hardtke was 
booked into jail at 2:06 p.m. and released at 4:06 p.m.  ECF No. 121.  She was cited with 
two misdemeanor charges, but the citation was dismissed at Wardlaw’s direction.  ECF 

No. 108 at 11–12.  Hardtke was not charged further for her conduct on January 22 or 
January 23.  Id. at 12.                                                   
Hardtke files this case.  Hardtke asserts claims across four counts in her operative 
Second Amended Complaint.  ECF No. 71.  Through § 1983, Hardtke claims Sergeant Hart 
and Detective Lieutenant Hajicek arrested her without probable cause in violation of her 

Fourth Amendment right to be free from unreasonable seizures.  Id. ¶¶ 16–18 (Count I).  
Again through § 1983, Hardtke asserts a Monell/Canton claim against the City of East 
Grand Forks arising from its assertedly “constitutionally deficient training practices with 
respect to execution of search warrants.”  Id. ¶¶ 19–22 (Count II).  Under Minnesota 
common  law,  Hardtke  asserts  false-arrest  and  false-imprisonment  claims  and  a 

malicious-prosecution claim against all Defendants.  Id. ¶¶ 23–26 (Count III) (false arrest 
and false imprisonment), ¶¶ 27–30 (Count IV) (malicious prosecution).4    

4    Hardtke originally named Wardlaw as a defendant, but the claims against him have 
since been dismissed.  See ECF Nos. 52 (suggestion of Wardlaw’s death), 77 (stipulation 
                           II                                        
Summary judgment is warranted “if the movant shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a).  A fact is “material” only if its resolution might affect the outcome 
of the suit under the governing substantive law.  Anderson v. Liberty Lobby, Inc., 

 (1986).  A dispute over a fact is “genuine” only if “the evidence is such that a 
reasonable jury could return a verdict for the nonmoving party.”   

    
“The evidence of the non-movant is to be believed, and all justifiable inferences are 

to be drawn in his favor.”  

.  When, as here, there are cross-motions for summary 
judgment, each side receives the benefit of this rule in response to the other side’s motion.  
See, e.g., Fjelstad v. State Farm Ins. Co., 

 (D. Minn. 2012).  “There 
is . . . an added wrinkle in this case: existence in the record of a videotape [and an audio 
recording] capturing the events in question.”  Scott v. Harris, 

 (2007).  

The facts will be viewed in the light depicted by these real-time recordings, setting aside 
versions of the facts that are “blatantly contradicted by the record, so that no reasonable 
jury could believe it.”  

; see, e.g., Ransom v. Grisafe, 

 (8th Cir. 
2015).                                                                    




of dismissal as to Wardlaw’s estate and the estate’s personal representative under a 
Pierringer agreement), and 80 (order of dismissal).  Hardtke’s official-capacity claims 
against the officers will be treated as claims against the City.  See Smith-Dandridge v. 
Geanolous, 

, 574 n.3 (8th Cir. 2024).                         
                          III                                        

                           A                                         

The  logical  starting  point  is  answering  whether  Sergeant  Hart  and  Detective 
Lieutenant Hajicek possess qualified immunity as a matter of law in response to Hardtke’s 
Fourth Amendment unreasonable-seizure claim.  See Cartia v. Beeman, --- F.4th ---, 
No. 23-1650, 

, at *2 (8th Cir. Dec. 10, 2024).  The general legal 
framework governing this question is settled, if sometimes difficult to apply.  Qualified 
immunity gives the officers a defense “if: (1) the plaintiff-friendly version of the facts fails 
to establish a constitutional violation; or (2) the law at the time did not clearly establish the 
right.”  

 (quoting Morgan-Tyra v. City of St. Louis, 

 (8th Cir. 2024)); 
see also Brown v. City of Golden Valley, 

 (8th Cir. 2009); Watson v. 
Boyd, 

 (8th Cir. 2021).  Courts may consider the questions in either 
order.  Pearson v. Callahan, 

 (2009).  A § 1983 plaintiff can defeat a 

claim of qualified immunity only if the answer to both questions is yes.  Id.  If the material 
facts are not genuinely disputed, then the constitutionality of an officer’s conduct is a 
question of law.  Thompson v. Reuting, 

 (8th Cir. 1992); see also Pollreis 
v. Marzolf, 

, 732 n.2 (8th Cir. 2023); Bell v. Irwin, 

 (7th Cir. 
2003).                                                                    

Here, owing to the character of Hardtke’s claims and the law governing qualified 
immunity’s application to assertedly unconstitutional arrests, it makes better sense just to 
go  straight  to  the  second  question—that  is,  whether  the  officers  possessed  arguable 
probable cause to arrest Hardtke for “aiding an offender” in violation of 

 or for “obstructing legal process” in violation of 

.  “The 
Fourth Amendment right of citizens not to be arrested without probable cause is indeed 
clearly established.”  Kuehl v. Burtis, 

 (8th Cir. 1999).  “[A]n officer is 

entitled  to  qualified  immunity  if  there  is  at  least  ‘arguable  probable  cause’”  for  a 
warrantless arrest.  Borgman v. Kedley, 

, 522–23 (8th Cir. 2011) (quoting 
Walker v. City of Pine Bluff, 

 (8th Cir. 2005)).  “Probable cause to make 
a warrantless arrest exists ‘when the totality of the circumstances at the time of the arrest 
are sufficient to lead a reasonable person to believe that the defendant has committed or is 

committing an offense.’”  Ulrich v. Pope County, 

 (8th Cir. 2013) 
(quoting Borgman, 

).  If an officer makes a warrantless arrest under the 
mistaken  belief  that  probable  cause  for  the  arrest  exists,  that  officer  is  shielded  by 
qualified immunity “if the mistake is ‘objectively reasonable.’”  Borgman, 

 (quoting  Amrine  v.  Brooks,  

  (8th  Cir.  2008)).    The 

arguable-probable-cause inquiry is not limited to charged offense or offenses; the question 
is whether the officer was aware of facts justifying a reasonable belief that some offense 
was  being  committed.    See  Devenpeck v. Alford, 

,  153–54  (2004).5  
Answering whether an arrest was supported by arguable probable cause requires comparing 
each charge—that is, the state law or laws the officers claim were arguably violated and 


5    Generally, it would seem impracticable and unwise for a court to undertake this 
analysis by independently identifying what criminal law or laws might have justified a 
§ 1983 plaintiff’s arrest.  Here, the officers have identified subdivisions of two Minnesota 
statutes, § 609.495, subdiv. 1(b) and § 609.50, subdivs. 1(1) and 1(2), as supporting 
Hardtke’s  arrest.    See  Defs.’  Mem.  in  Supp.  [ECF  No.  86]  at  20–24.    The 
arguable-probable-cause analysis here will not go beyond these statutes.   
justified an arrest—with the plaintiff’s arrest-prompting conduct, see, e.g., Robbins v. City 
of Des Moines, 

 (8th Cir. 2021), keeping in mind that “[i]n close qualified 
immunity cases, the absence of judicial guidance can be significant because ‘[p]olice 

officers are not expected to parse code language as though they were participating in a law 
school seminar,’” Walker, 

 (quoting Lawyer v. City of Council Bluffs, 

 (8th Cir. 2004)).                                         
                           B                                         
                           1                                         

The officers contend they had arguable probable cause to arrest Hardtke for aiding 
an offender (K.H.) in violation of 

, subdiv. 1(b), based on Hardtke’s 
actions on January 22, 2020.  Defs.’ Mem. in Supp. at 20–24.  The version of this statute 
in effect during January 2020 said this:                                  
     Whoever knowingly harbors, conceals, or aids a person who is    
     on probation, parole, or supervised release because of a felony 
     level conviction and for whom an arrest and detention order     
     has been issued, with intent that the person evade or escape    
     being taken into custody under the order, may be sentenced to   
     imprisonment for not more than three years or to payment of a   
     fine  of  not  more  than  $5,000,  or  both.  As  used  in  this 
     paragraph, “arrest and detention order” means a written order   
     to take and detain a probationer, parolee, or supervised releasee 
     that is issued under section 243.05, subdivision 1; 244.195;    
     or 401.025.                                                     

, subdiv. 1(b) (2020).6  The statute may be separated into four 
essential elements, couched in this case’s facts: (1) K.H. was on probation, parole, or 

6    The version of 

 in effect on Hardtke’s arrest date was enacted 
in 2016.  See 

 (S.F. No. 3113).                      
supervised release because of a felony-level conviction; (2) Hardtke knew or believed that 
K.H. was on probation, parole, or supervised release because of a felony-level conviction; 
(3) an arrest-and-detention order was issued to take K.H. into custody for a violation of 

probation, parole, or supervised release; (4) and Hardtke harbored, concealed, or aided 
K.H. with the intent that K.H. evade or escape being taken into custody pursuant to the 
arrest-and-detention order.  Id.; see 10A Minn. Prac., CRIMJIG 29.27 (7th ed. Nov. 2024 
Update) (addressing equivalent text in § 609.495, subdiv. 1(b)’s current version). 
The Minnesota Court of Appeals addressed the statute’s “harbors, conceals, or aids” 

clause—or, more precisely, an identical clause in a prior version of the statute—in State v. 
Ogris, No. A08-1001, 

 (Minn. Ct. App. Dec. 29, 2009).  There, the court 
ascribed common-sense meanings to “harbor,” “conceal,” and “aid.”  Regarding “harbor” 
and “conceal,” the court explained:                                       
     “‘To harbor a person’ means to furnish the person with shelter  
     or  food  in  such  circumstances  that  the  person  is  aided  in 
     avoiding  detection  by  lawful  authority.”   10A Minnesota    
     Practice, CRIMJIG 24.11.  And under CRIMJIG 24.11, “‘To         
     conceal a person’ means to make it more difficult for the       
     person  to  be  found.”   

    Black’s  Law  Dictionary defines 
     “harboring”  as  “[t]he  act  of  affording  lodging,  shelter,  or 
     refuge to a person, esp. a criminal or illegal alien.”  Black’s 
     Law Dictionary 733 (8th ed. 2004).  The American Heritage       
     Dictionary  defines  “harbor”  as  “[t]o  give  shelter  to.”   The 
     American Heritage Dictionary 798 (4th ed. 2006).  Black's       
     Law  Dictionary defines  “concealment”  as  “[t]he  act  of     
     refraining from disclosure; esp., an act by which one prevents  
     or hinders the discovery of something; a cover-up” and “[t]he   
     act of removing from sight or notice; hiding.”  Black’s Law     
     Dictionary 306  (8th  ed.  2004).   The  American  Heritage     
     Dictionary defines “conceal” as “[t]o keep from being seen,     
     found,  observed,  or  discovered.”   The  American  Heritage   
     Dictionary 381 (4th ed. 2006).                                  
Ogris, 

, at *4.  In defining “aid,” the court first cited the leading legal 
dictionary’s definition of “‘aid and abet’ as ‘[t]o assist or facilitate the commission of a 
crime, or to promote its accomplishment.’”  

 (citing Black’s Law Dictionary 76 (8th ed. 
2004)).  The court recognized that, outside the criminal context, “aid” was defined more 
broadly “as ‘[t]o help or furnish with help, support, or relief’ and ‘[t]he act or result of 

helping; assistance.’”  

 (citing The American Heritage Dictionary 36 (4th ed. 2006)).  
The court concluded that the meanings of “harbor,” “conceal,” and “aid” “are within the 
ordinary understanding of a jury,” meaning in turn that the district court “did not err by 
declining to define the terms for the jury.”  

  In other words, in the Ogris court’s view, 
applying § 609.495, subdiv. 1(b) does not require lay jurors or anyone else (including 

police officers) to “parse code language as though they were participating in a law school 
seminar.”  Walker, 

 (quoting Lawyer, 

).    
On  this  record,  the  undisputed  facts  show  that  Sergeant  Hart  and  Detective 
Lieutenant  Hajicek  did  not  possess  arguable  probable  cause  to  believe  that  Hardtke 
“harbored,” “concealed,” or “aided” K.H. on January 22, 2020.  (1) Hardtke did not 

“harbor” K.H. because no evidence suggests Hardtke did anything to help K.H. avoid 
detection.  Hardtke did the opposite; she tried to persuade K.H. to surrender to the officers.  
ECF No. 132-2 at 53–54.  Hardtke could not rationally have been charged for K.H.’s refusal 
to surrender or for failing to use force to bring K.H. to the officers.  It is difficult to 
understand how Hardtke’s statement that she could not “confirm or deny” that K.H. was 

on site might have aided K.H. to avoid detection.  Hardtke did not give the officers false 
information.  She supported her refusal to volunteer K.H.’s presence by citing to what she 
believed  was  an  overriding  federal  regulation.    Regardless,  Corporal  Thompson  told 
Hardtke that he and Officer Trevino knew K.H. was on site, ECF No. 133 at 17:19–18:52, 

making Hardtke’s response beside the point.                               
(2) Hardtke did not “conceal” K.H. because no evidence suggests Hardtke did 
anything to make it more difficult for the officers to find K.H.  As far as the record shows, 
when the officers were at Douglas Place, K.H. remained on site too.  The record shows the 
officers did not leave the lobby area to search for K.H., so no evidence shows where the 

officers might have found her had they looked or what difficulties, if any, the officers might 
have encountered.  The point is that no evidence shows Hardtke created any challenges for 
the officers had they searched for K.H.7                                  
(3) Finally, Hardtke did not “aid” K.H. in the sense § 609.495 requires.  That is, she 
did not help or assist K.H. in evading law enforcement or in committing a crime.  It is true 

that Douglas Place and its staff—including Hardtke—“aided” K.H. in a different, non-
crime-furthering sense.  They provided residential drug treatment services to her in line 
with a Stearns County District Court order.  Hardtke could not rationally be arrested for 



7    The officers assert that Hardtke “continued to shelter [K.H.] in [K.H.’s] room after 
[Hardtke] told the police officers that she could neither admit nor deny whether [K.H.] was 
present at Douglas.”  Defs.’ Mem. in Supp. at 21.  The officers do not say what they mean 
by “shelter,” and they cite no record evidence to support the factual assertion that K.H. 
remained in her room while the officers were on site.  Regardless, the assertion favors 
Hardtke.  It means that, had they searched, the officers would have found K.H. where the 
officers should reasonably have expected her to be.                       
aiding K.H. in violation of § 609.495 for lawful treatment-related activities she (and other 
Douglas Place staff) provided pursuant to the court order releasing K.H. to their care.8 
The  officers  argue  that  a  Minnesota  Court  of  Appeals  case—State  v.  Patch, 

 (Minn. Ct. App. 1999)—shows that they possessed arguable probable 
cause to arrest Hardtke for aiding K.H. in violation of § 609.495, but it’s difficult to see 
how.  Patch did not address an aiding-an-offender charge; it reversed a conviction for 
obstruction  under  the  1996  version  of  

,  subdiv.  1(1).    Patch, 
594 N.W.2d at 537–40.  The court of appeals explained in Patch that the Minnesota 

Supreme Court had “in a 1988 case rejected an overbreadth challenge to the [obstruction] 
statute, construing it narrowly as ‘directed solely at physical acts.’”  

 at 538 (citing State 
v. Krawsky, 

 (Minn. 1988)).  The court of appeals also explained that 
the supreme court had “rejected the claim that the statute applied to verbal conduct,” unless 
the “words by themselves have the effect of physically obstructing or interfering with a 

police officer in the performance of his duties.”  

 (quoting Krawsky, 

).  
Applying these principles, the court based its reversal of Patch’s conviction on the absence 


8    There is another problem with applying § 609.495 to support Hardtke’s arrest.  The 
statute requires that K.H. have been “on probation, parole, or supervised release because 
of a felony level conviction.”  

, subdiv. 1(b) (emphasis added).  As 
far as the record shows, K.H.’s designation to Douglas Place did not result from a felony 
(or lesser) conviction.  The apprehension-and-detention order Gilhoi sent to the East Grand 
Forks  Police  Department  noted  clearly  that  K.H.  was  “on  pre-trial  supervision”  for 
domestic assault charges.  ECF No. 136.  Because the officers could not reasonably have 
concluded that Hardtke harbored, concealed, or aided K.H., it is not necessary to address 
whether this problem might independently have deprived the officers of arguable probable 
cause to arrest Hardtke.                                                  
of evidence showing that Patch physically obstructed an officer or engaged in verbal 
conduct that had the effect of physically obstructing or impeding an officer.  

 at 538–39. 
It is true the court included the following observation in its opinion: “The state could 

have charged Patch with aiding an offender to avoid apprehension if it could prove Patch 
knew [the person she aided] had committed a felony.”  Id. at 540.  For two fundamental 
reasons, this observation does not support the conclusion that the officers had arguable 
probable cause to arrest Hardtke for aiding K.H. under § 609.495.  First, the observation is 
obiter dictum.  It was not necessary to, and played no role in, Patch’s disposition.  Second, 

any guidance the observation might provide is limited by Patch’s facts, and they are 
materially different from this case’s facts.  Patch did not, as the officers seem to imply, 
merely tell a felon that “[t]he cops are coming to get you.”  Patch, 

.  
Patch also “helped her look for a back door to make her escape,” stood lookout at the front 
door, and “offered her a ride and was ‘pretty insistent’ that she come with her.”  

  We 

don’t have anything like that here.                                       
The officers also rely on Ogris, arguing it supports their “claim of probable cause 
to arrest [Hardtke] for violating 

, subd. 1(b).”  Defs.’ Mem. in Supp. 
at 23.  Ogris, unlike Patch, addressed a conviction under § 609.495, subdiv. 1(b), but that 
is where the similarities between Ogris and this case end.  In Ogris, officers sought to 

execute a bench warrant for the arrest of a woman named Kara Olson.  

, 
at *1.  The officers went to a residence, thinking they might find Olson there.  

  The 
officers encountered Ogris at the door and told him they were looking for Olson.  

  Ogris 
told the officers Olson was his girlfriend and that she had moved to Minneapolis.  

  
Several times Ogris told the officers that Olson was not in the residence.  

 at *1–2.  And 
Ogris told the officers that they could not enter the residence, offering as justifications “that 
he had locked himself out and that the unit’s resident, ‘Judy,’ was passed out drunk on 

vodka.”  Id. at *2.  The officers eventually obtained permission to search the residence and 
found Olson hiding in a closet and arrested her.  Id.  Ogris’s conviction-justifying facts are 
materially different from this case’s facts.  Hardtke never told the officers that K.H. wasn’t 
at Douglas Place.  (If she had, it wouldn’t have done any good.  The officers knew K.H. 
was at Douglas Place.)  Hardtke did not give the officers any reason—much more a false 

reason—why they could not search Douglas Place for K.H.  And there is no evidence 
showing that whatever Hardtke told K.H. prompted K.H. to hide or evade the officers while 
they were on site.  Ogris does not show the officers had arguable probable cause to arrest 
Hardtke for aiding K.H. in violation of § 609.495, subdiv. 1(b).          
                           2                                         

The  officers  argue  they  had  arguable  probable  cause  to  arrest  Hardtke  for 
obstructing legal process in violation of 

, subdivs. 1(1) and (2), based 
on Hardtke’s actions on January 22 and 23, 2020.  Defs.’ Mem. in Supp. at 20–24.  As 
relevant here, the version of this statute in effect during January 2020 criminalized the 
intentional obstruction, hinderance, or prevention of “the lawful execution of any legal 

process, civil or criminal, or apprehension of another on a charge or conviction of a 
criminal offense,” and the intentional obstruction, resistance, or interference “with a peace 
officer while the officer is engaged in the performance of official duties.”  

, subdivs. 1(1), (2).9                                            
As  discussed,  the  Minnesota  Supreme  Court  long  ago  in  Krawsky  construed 

§ 609.50 narrowly as “directed solely at physical acts.”  Krawsky, 

.  The 
court summarized the statute as follows:                                  
     [T]he  statute  forbids  intentional  physical  obstruction  or 
     interference with a police officer in the performance of his    
     official duties.  The statute may be used to punish “fighting   
     words” or any other words that by themselves have the effect    
     of physically obstructing or interfering with a police officer in 
     the performance of his duties—e.g., the statute may be used to  
     punish a person who runs beside an officer pursuing a felon in  
     a public street shouting and cursing at the officer if the shouting 
     and cursing physically obstructs the officer’s pursuit and if the 
     person intends by his conduct to obstruct or interfere with the 
     officer.  However, the statute does not apply to ordinary verbal 
     criticism directed at a police officer even while the officer is 
     performing his official duties . . . .                          

 at 877–78 (citation omitted).  The court observed also that the obstruction statute does 
not punish “interrupting” an officer, even intentionally.  Id.; see also State v. Tomlin, 

 (Minn. 2001) (recognizing that § 609.50 is “directed solely at a 
particular kind of physical act that physically obstructs or interferes with an officer” or “in 
limited circumstances . . . ‘fighting words’ [that] have the effect of physically obstructing 
or interfering with an officer”).  Though Krawsky addressed an earlier version of the 
statute, its interpretation remains valid.  See Hoyland v. McMenomy, 

 
(8th Cir. 2017) (“As Minnesota law makes abundantly clear, obstruction must be either 

9    The version of 

 in effect on Hardtke’s arrest date was enacted 
in 2008.  See Act of May 13, 2008, ch. 304 § 1 (H.F. No. 2877).           
physical obstruction or verbal conduct, such as fighting words, that has the effect of 
physically obstructing officers in the performance of their duties.  Nowhere in Minnesota 
law does mere physical presence at a distance constitute obstruction.”), abrogated on other 

grounds by Nieves v. Bartlett, 

 (2019); see Laney v. City of St. Louis, 

, 1157 n.2 (8th Cir. 2023) (recognizing abrogation).  The officers cite no authority 
suggesting Krawsky is no longer good law.                                 
On  this  record,  the  undisputed  facts  show  that  Sergeant  Hart  and  Detective 
Lieutenant Hajicek did not possess arguable probable cause to believe that Hardtke violated 

§ 609.50 on January 22 or 23, 2020.  Hardtke did not physically obstruct the officers on 
either date.  And what few words she spoke—though evidently not what the officers wanted 
to hear—cannot reasonably be characterized as “fighting words,” much more fighting 
words that might have had the effect of physically obstructing or interfering with the 
officers’ performance of their duties.                                    

The officers seem to advance two January 23-connected arguments to support that 
they possessed arguable probable cause to arrest Hardtke for violating § 609.50, but neither 
is persuasive.  First, the officers appear to argue that Hardtke had a duty to comply with 
the officers’ January 23 execution of the search warrant.  See Defs.’ Mem. in Supp. at 21.  
The officers do not describe the precise contours of the duty they believe Hardtke had.  The 

officers cite no authority supporting the proposition that an organization’s employees have 
a duty to affirmatively assist officers in their execution of search warrants.  The proposition 
seems questionable.  Cf. Andresen v. Maryland, 

, 473–74 (1976) (recognizing 
that “the individual against whom the search is directed is not required to aid in the 
discovery, production, or authentication of incriminating evidence”).  Regardless, no facts 
show  that  Hardtke  physically  interfered  with  the  officers’  execution  of  the  warrant.  
Hardtke told the officers that she believed federal law prohibited her from giving the 

officers K.H.’s records.  ECF No. 132-2 at 62.  And as far as the record shows, nothing 
prevented the officers from searching for K.H.’s records or explains why they did not.  
Second, the officers argue that their reliance on Wardlaw’s January 23 directive to arrest 
Hardtke gave them arguable probable cause to do just that.  Following the prosecutor’s 
advice “does not automatically cloak [officers] with qualified immunity.”  Frye v. Kan. 

City Mo. Police Dept., 

, 792 (8th Cir. 2004) (alteration in original); see 
Womack v. City of Bellefontaine Neighbors, 

 (8th Cir. 1999).  Here, 
Wardlaw had no more arguable probable cause than the officers.  His directive to arrest 
Hardtke was based just on information the officers communicated to him about Hardtke’s 
conduct in response to the search warrant on January 23.  See ECF No. 134 at 19:41–19:45.  

That the officers obeyed Wardlaw’s directive does not help them.          
                           *                                         
The undisputed facts establish that Sergeant Hart and Detective Lieutenant Hajicek 
lacked arguable probable cause to arrest Hardtke for aiding K.H. in violation of 

 or for obstruction in violation of 

.  Therefore, Hardtke’s 

motion for partial summary judgment will be granted.  To the extent it concerns the 
qualified-immunity defense to Hardtke’s § 1983/Fourth Amendment claim against the 
officers, Defendants’ summary-judgment motion will be denied.             
                          IV                                         
Hardtke’s  §  1983 claim  against  the  City  of  East  Grand  Forks  advances  a 
failure-to-train theory.  “It is well established that a municipality cannot be liable under 
§ 1983 under a respondeat superior theory, that is, solely because it employs a tortfeasor.”  

Robbins, 

 (quotation omitted).  “A municipality may only be liable for a 
constitutional violation resulting from (1) an official municipal policy; (2) an unofficial 
custom; or (3) failure to train or supervise.”  

 at 681–82.            
“It is difficult to establish a municipality’s culpability based on failure to train, 
which must amount to deliberate indifference to the rights of persons with whom the 

untrained employees come into contact.”  

 (cleaned up).  “Deliberate indifference 
requires proof the municipality disregarded a known or obvious consequence of its action 
or inaction.”  Id.; see Poemoceah v. Morton County, 

, 1057–58 (8th Cir. 
2024) (“A failure to train is actionable under § 1983 if, ‘in light of the duties assigned to 
specific officers or employees[,] the need for more or different training is so obvious, and 

the  inadequacy  so  likely  to  result  in  the  violation  of  constitutional  rights,  that  the 
policymakers . . . can reasonably be said to have been deliberately indifferent to the need.’” 
(quoting City of Canton v. Harris, 

 (1989))).  The municipality’s 
deliberate  indifference  must  cause  the  constitutional  violation.    Smith-Dandridge  v. 
Geanolous, 

 (8th Cir. 2024).  That is, the failure to train “must be the 

‘moving force’ that led to the alleged deprivation of a constitutional right.”  

 (quoting 
Speer v. City of Wynne, 

, 985–86 (8th Cir. 2002)).            
The  constitutional  deprivation  here  was  an  arrest  without  probable  cause,  but 
Hardtke has not identified evidence showing the City’s deliberate indifference to arrests 
without probable cause.  (1) Hardtke cites record evidence she claims demonstrates “that 
East Grand Forks Police Chief Michael Hedlund had notice there was an ongoing conflict 
between Douglas Place and East Grand Forks Police pertaining to sharing information 

about Douglas Place patients.”  Pl.’s Mem. in Opp’n [ECF No. 143] at 38.  The cited 
evidence includes email communications between Sergeant Hart on one side, and Hardtke 
and Zuniga on the other.  ECF No. 144-5 at 20–25.  These communications address the 
City and County Attorney’s concerns regarding Douglas Place’s failure to report drug 
crimes committed on site, adverse community consequences caused by Douglas Place’s 

operations and policies, and Douglas Place’s response to these issues.  See 

  These 
communications do not mention or touch the subject of arrests or the East Grand Forks 
Police Department’s arrest practices.  See 

  They do not show a need for more training 
concerning arrest practices or the subject of probable cause.             
(2)  Hardtke  argues  that  the  officers’  January  22  threat  to  refer  Hardtke  for 

obstruction charges shows the City’s deliberate indifference.  Pl.’s Mem. in Opp’n at 39.  
This is not persuasive.  As a reminder, that day’s events involved a failed attempt by 
Corporal Thompson and Officer Trevino to execute the arrest-and-detention order for K.H., 
interactions between the officers and Hardtke (and other Douglas Place staff), and Corporal 
Thompson’s threat to refer Hardtke for obstruction charges.  It is difficult to understand 

how anything that happened on January 22 would have given the City notice of the need 
to train its officers regarding arrest practices or the subject of probable cause.  No arrest 
occurred that day, much more a problematic arrest.  And Hardtke does not claim that 
anything  the  officers  did  on  January  22  was  unlawful.    She  has  not  sued  Corporal 
Thompson or Officer Trevino.                                              
(3) Finally, Hardtke relies on the opinion of her expert witness “that [the] East Grand 

Forks  Police  Department  failed  to  train  their  [sic]  officers  to  understand  the  legal 
responsibilities and restrictions that apply to a drug and alcohol treatment facility like 
Douglas Place.”  ECF No. 132-6 at 8; see Pl.’s Mem. in Opp’n at 39.  For several reasons, 
this opinion does not show the City’s deliberate indifference.  The expert identifies no prior 
problematic arrests or other conduct that might have notified the City of the need to train 

officers regarding federal regulations governing residential treatment centers.  If the expert 
had  identified  that  sort  of  thing,  a  causation  problem  would  remain.    Again,  the 
unconstitutionality of Hardtke’s arrest resulted from the absence of probable cause to think 
Hardtke aided K.H. or obstructed legal process in violation of Minnesota law.  No doubt 
Hardtke’s understanding of the facility’s obligations under federal regulations motivated 

her statements and conduct, but answering whether the officers had probable cause to arrest 
Hardtke  does  not  depend  on  Hardtke’s  motivations.    To  put  it  another  way,  the 
unconstitutionality of Hardtke’s arrest did not result from the officers’ lack of knowledge 
regarding federal regulations, so it is difficult to understand how training regarding the 
regulations would have solved the lack-of-probable-cause problem.  If that weren’t so, 

Hardtke’s  expert  does  not  opine  that  Hardtke  (or  Douglas  Place)  had  a  correct 
understanding of Title 42.  ECF No. 132-6 at 8.  Nor does the expert rule out the possibility 
that any training might reasonably have involved a different or contrary understanding of 
the regulations.  Hardtke has not shown how training in this area might have prevented her 
unconstitutional arrest.                                                  
                           V                                         

Cases  from  this  District  dating  back  years  consistently  treat  Minnesota  false 
imprisonment and false arrest claims as essentially a single claim when they are asserted 
against a law enforcement officer.  See, e.g., Tillis v. City of Minneapolis, No. 12-cv-324 
(ADM/TNL), 

, at *9 (D. Minn. Nov. 18, 2013) (“Under Minnesota law, 
the tort of false imprisonment, when asserted against a [law enforcement officer], is similar 

to that of false arrest.” (quoting Cornelious v. Brubaker, No. 01-cv-1254 (MGD/JGL), 

, at *11 (D. Minn. June 25, 2003))); Sang v. City of St. Paul, No. 
09-cv-455 (RHK/SRN), 

, at *7 (D. Minn. June 8, 2010) (same); Mann 
v. Shevich, No. 08-cv-5202 (ADM/RLE), 

, at *8 (D. Minn. Feb. 23, 2010) 
(same); Adewale v. Whalen, 

 (D. Minn. 1998) (same).  “Both 

torts require an unlawful arrest performed by the defendant.”  Adewale, 

.  “Under Minnesota law, ‘if an arrest is made without proper legal authority, it is a 
false arrest, and so false imprisonment.’”  Baribeau v. City of Minneapolis, 

 (8th Cir. 2010) (quoting Lundeen v. Renteria, 

 (Minn. 1974)).  
An arrest made without probable cause lacks proper legal authority.  Perkins v. St. Louis 

County, 

 (Minn. Ct. App. 1986).                        
Obviously,  my  determination  in  the  §  1983/Fourth  Amendment  context  that 
Sergeant Hart and Detective Lieutenant Hajicek lacked arguable probable cause to arrest 
Hardtke means the officers arrested and detained her without proper legal authority for 
purposes of her false arrest and false imprisonment claims.  If that were the only issue, 
Defendants’ summary-judgment motion would be denied on that basis.  There is more to 
this question, however.                                                   

The officers argue that they—and by extension, the City—possess official immunity 
as a matter of law in response to Hardtke’s false arrest and false imprisonment claims.  “As 
distinguished from the ‘qualified immunity’ afforded peace officers when addressing 

 claims, under Minnesota law a public official is entitled to official 
immunity from state law claims when that official is charged by law with duties that require 

the exercise of judgment or discretion.”  Heard v. City of Red Wing, 

, 
792  (D.  Minn.  2019) (quoting  Johnson  v.  Morris,  

  (Minn. 
1990)); accord Ward v. Olson, 

 (D. Minn. 2013) (quoting Dokman 
v. County of Hennepin, 

 (Minn. Ct. App. 2001)).  If an official’s 
actions require the exercise of discretion, he is entitled to official immunity “unless the 

official committed a willful or malicious wrong.”  Heard, 393 F. Supp. 3d at 792 (citing 
Pletan v. Gaines, 

 (Minn. 1992)).                        
Cases establish that the officers’ actions in arresting Hardtke were discretionary for 
qualified immunity purposes.  “Generally, police officers are classified as discretionary 
officers entitled to [official] immunity.” Ward, 

 (quoting Johnson, 

); see also Yang v. City of Brooklyn Park, 

 
(D. Minn.  2016)  (“Under  Minnesota  law,  official  immunity  protects  police  officers 
engaged in law enforcement efforts unless they act with subjective malice.” (quoting 
Wertish v. Krueger, 

 (8th Cir. 2006))).  Hardtke identifies no reason 
to reach a different conclusion here.                                     
Cases also establish, however, that a reasonable jury could find the officers acted 

willfully or maliciously.  In answering this question, “courts consider whether the official 
has intentionally committed an act that he or she had reason to believe is prohibited.  This 
contemplates less of a subjective inquiry into malice, which was traditionally favored at 
common law, and more of an objective inquiry into the legal reasonableness of an official’s 
actions.”    Heard,  393  F.  Supp.  3d  at  792  (cleaned  up)  (quoting  Hassan  v.  City  of 

Minneapolis, 

 (8th Cir. 2007)); see also Brown v. City of Golden Valley, 

, 500–01 (8th Cir. 2009) (“In the context of official immunity, ‘willful’ and 
‘malicious’ are synonymous, and the Minnesota Supreme Court has defined malice as 
‘nothing more than the intentional doing of a wrongful act without legal justification or 
excuse, or, otherwise stated, the willful violation of a known right.’” (quoting Rico v. State, 

 (Minn. 1991))).  The malicious-wrong exception to official immunity 
“anticipates liability only when an official intentionally commits an act that he or she then 
has reason to believe is prohibited.”  Rico, 

.  “The determination of 
whether an officer acted maliciously or willfully is usually a question of fact for the jury.”  
Ward, 

 (citing Elwood v. Rice County, 

 (Minn. 

1988)).  Here, the same facts that show the absence of arguable probable cause to support 
Hardtke’s arrest—that is, the officers’ violation of a clearly established right—would give 
a reasonable jury ground to find the officers acted willfully or maliciously for official 
immunity’s purposes.                                                      
                          VI                                         
The law governing the merits of Hardtke’s malicious-prosecution claim seems clear 
enough:                                                                   

     To state a malicious-prosecution claim in Minnesota, a party    
     must allege that “(1) the suit [was] brought without probable   
     cause and with no reasonable ground on which to base a belief   
     that the plaintiff would prevail on the merits; (2) the suit [was] 
     instituted and prosecuted with malicious intent; and (3) the suit 
     . . . ultimately terminate[d] in favor of the defendant.”  Stead-
     Bowers v. Langley, 

 (Minn. Ct. App.          
     2001).  “Probable cause is a reasonable ground of suspicion,    
     supported by circumstances sufficiently strong in themselves    
     to warrant a cautious man in the belief that the person accused 
     is guilty of the offense with which he is charged.”  Allen v.   
     Osco Drug, Inc., 

 (Minn. 1978) (internal     
     quotation  marks  omitted).    “Only  reasonable  belief  that  
     probable  cause  existed  is  necessary  to  negate  a  malicious 
     prosecution claim.”  Dunham v. Roer, 

        
     (Minn. Ct. App. 2006) (internal quotation marks omitted).       

Nygard v. City of Orono, 

 (8th Cir. 2022).  “Malice,” for malicious-
prosecution’s  purposes,  is  “the  intentional  doing  of  a  wrongful  act  without  legal 
justification or excuse, or, otherwise stated, the willful violation of a known right.”  Rico, 

 (quotation omitted).  A malicious-prosecution “plaintiff must prove, at 
a minimum, that the defendant knew that its actions were wrong.”  Hirtzinger v. Pinnacle 
Airlines, Inc., No. 06-cv-1609 (PJS/RLE), 

, at *16 (D. Minn. Mar. 27, 
2008) (citing Osco Drug, Inc., 

).                        
Judged  against  these  elements,  Hardtke’s  malicious-prosecution  claim  seems 
trial-worthy.  (1) The officers lacked probable cause to arrest Hardtke and charge her with 
obstruction under 

, subdiv. 1(2).  See supra section III(B)(2).  (2) A 
reasonable jury could find that the officers knew their actions were wrong.  Legally, the 
absence of arguable probable cause means any reasonable officer knew or should have 
known that Hardtke’s arrest lacked legal justification and was wrong.  And, whether 

required or not, there is evidence showing the officers possessed a subjective intent to 
execute the warrant on January 23 with the aim, not of retrieving K.H.’s records, but of 
arresting Hardtke.  In his deposition, Sergeant Hart testified that the search warrant for 
K.H.’s records was intended solely as a means of investigating Hardtke and Carlson.  ECF 
No. 108 at 7 (“Q: Can you tell me who was the subject of the investigation for which you 

obtained a search warrant?  A: It would have been Amber Hardtke and Carly Carlson.  
Q: And so [K.H.] was no longer under investigation when you saw the search warrant?  
A: No.  She had already absconded from the Douglas House.  Q: So the sole basis for your 
investigation when you came to Douglas Place, when you initially obtained a search 
warrant and then you came to Douglas Place to execute it, at this point you’re solely 

investigating Douglas Place Staff, and not [K.H.]; is that true?  A: Correct.”).  (3) There is 
no dispute the charges against Hardtke were dismissed.  ECF No. 144-3.    
Defendants’ arguments for summary judgment on this claim are not persuasive.  
Defendants cite Thompson v. City of Minneapolis, No. 06-cv-3131 (JMR/FLN), 

 (D. Minn. Apr. 22, 2008), and Jacobson v. Mott, No. 07-cv-4420 (DWF/RLE), 

 (D. Minn. Jan. 16, 2009), for the proposition that police officers cannot 
be sued for malicious prosecution because “police officers are not prosecutors.”  Defs.’ 
Mem. in Supp. at 34.  Consider Thompson.  There, the court entered summary judgment 
against a malicious prosecution claim, along the way observing, “Officers . . . are not 
prosecutors.”  

, at *9–10.  The court also acknowledged, however, that 
officers who play more than a “‘passive’ role in the initiation of criminal charges” could 
be subject to a malicious-prosecution claim.  

 at *10 (quoting Morgan v. McLaughlin, 

 (Minn. 1971)).  Jacobson is consistent with these rules.  See 

, at *3–4.  Here, the officers played more than a passive role in the initiating 
charges.  Defendants also cite cases for the proposition that a malicious-prosecution claim 
cannot survive to trial if an arrest was justified by probable cause.  See Defs.’ Mem. in 
Supp. at 35.  The absence of probable cause to justify Hardtke’s arrest means these cases 

are beside the point.                                                     

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Defendants City of East Grand Forks, Lieutenant Rod Hajicek, and Sergeant 

Tony Hart’s Motion for Summary Judgment [ECF No. 84] is GRANTED IN PART AND 
DENIED IN PART as follows:                                                
     a.   The motion is GRANTED as to Count 2 of Plaintiff Amber Hardtke’s 
          Second Amended Complaint.                                  
     b.   The motion is in all other respects DENIED.                
2.   Plaintiff Amber Hardtke’s Motion for Partial Summary Judgment [ECF No. 

129] is GRANTED.                                                          
Dated: December 16, 2024           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court           

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Amber Hardtke,                        File No. 21-cv-02733 (ECT/LIB)      

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

City of East Grand Forks; Lieutenant Rod                                  
Hajicek and Sergeant Tony Hart, in their                                  
individual and official capacities,                                       

     Defendants.                                                     


Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis, MN, for 
Plaintiff Amber Hardtke.                                                  

Joseph E. Flynn and Vicki A. Hruby, Jardine Logan & O’Brien PLLP, Lake Elmo, MN, 
for Defendants City of East Grand Forks, Lieutenant Rod Hajicek, and Sergeant Tony Hart. 


In January 2020, officers with the East Grand Forks Police Department attempted 
to execute arrest and search warrants in a residential treatment center.  Plaintiff Amber 
Hardtke was the center’s treatment director.  The officers thought that Hardtke was not 
cooperative in responding to the warrants, so they arrested and charged her with obstructing 
legal process.  In this case, Hardtke claims that Defendants—the City of East Grand Forks 
and the two arresting officers—violated her federal constitutional rights and committed 
torts under Minnesota law.                                                
Two motions require adjudication: (1) Defendants seek summary judgment outright.  
The officers say that qualified immunity shields them from liability for Hardtke’s federal 
constitutional claims.  The City says Hardtke lacks evidence to show that its training of the 
officers was constitutionally deficient.  Defendants also say that Hardtke lacks evidence to 
support her state-law claims and that, if she had evidence, Minnesota’s official-immunity 

doctrine would bar the claims.  (2) Hardtke seeks partial summary judgment in her favor 
on just the federal qualified-immunity question.                          
The result is a mixed bag.  Because the officers violated a clearly established Fourth 
Amendment right, Hardtke’s motion will be granted, and Defendants’ motion will be 
denied,  as  to  Hardtke’s  individual-capacity  constitutional  claims  against  the  officers.  

Because Hardtke has not shown the City of East Grand Forks was deliberately indifferent 
in  its  training  of  the  officers,  Defendants’  motion  will  be  granted  as  to  Hardtke’s 
constitutional claim against the City.  Because they are the subject of genuine, material 
facts disputes, Defendants’ motion will be denied as to Hardtke’s state-law tort claims.  
                           I1                                        

K.H. is in jail, facing felony charges and subject to a no-contact order.  The parties’ 
suit-prompting conduct centered around a non-party who will be referred to by just her 
initials, K.H.  As of January 2020, K.H. was jailed on a felony charge pending in Stearns 
County, Minnesota District Court.  ECF No. 90.  At the same time, she was subject to a 
Stearns County District Court order forbidding her from having contact with an individual 

who also will be referred to by his initials, B.L.  See ECF No. 100 at 7. 



1    Unless noted otherwise, the facts are undisputed.  Fed. R. Civ. P. 56(a). 
K.H. is released to a residential drug treatment facility.  On January 17, the Stearns 
County District Court ordered K.H. released to a residential drug treatment facility—
Douglas Place, in East Grand Forks, Minnesota.  ECF No. 94 at 5.  Douglas Place was at 

that time (and evidently still is today) operated by Meridian Behavioral Health.  See ECF 
No.  132-1  at  60;  see  also  Douglas  Place,  Meridian  Behavioral  Health, 
https://www.meridianprograms.com/program/douglas-place (last visited Dec. 16, 2024).  The 
court  ordered  K.H.  to  “sign  releases”  and  follow  Douglas  Place’s  treatment 
recommendations.  ECF No. 90.                                             

K.H. violates the no-contact order, and a St. Cloud Police Department officer, 
Susan Proshek, investigates.  On January 21, B.L. reported to St. Cloud police that K.H. 
had communicated with him in violation of the no-contact order.  ECF No. 100 at 7.  That 
same  day,  St.  Cloud  Police  Department  Officer  Susan  Proshek  met  with  B.L.  and 
investigated his report.  Id.  B.L. explained to Officer Proshek that he had received several 

documents K.H. sent by mail, including instructions for how B.L. could lift the no-contact 
order.  Id.  B.L. also reported receiving a telephone call that morning from K.H. during 
which K.H. asked B.L. to “drop” the no-contact order.  Id.                
Officer Proshek determines that K.H.’s telephone call originated from Douglas 
Place.  B.L. told Officer Proshek that K.H.’s call had come from a number in the (218) 

area code ending in 4000, and Officer Proshek observed this number displayed on B.L.’s 
phone.  Id. at 7; see also ECF No. 98 at 6–7.  Officer Proshek determined the number was 
associated with Douglas Place.  ECF No. 100 at 8; see also ECF No. 98 at 6–7. 
Officer Proshek notifies Douglas Place of K.H.’s no-contact-order violation and 
that the violation originated from there.  Officer Proshek called Douglas Place’s main 
number and was transferred to a counselor, Kristen Leintz.  ECF No. 100 at 8.  Leintz did 

not answer, so Officer Proshek left a message explaining that K.H. had placed a call that 
morning from Douglas Place to an individual who had a no-contact order against K.H.  
ECF No. 102 at 3.  Leintz returned Officer Proshek’s call that afternoon.  ECF No. 100 at 
8.  Leintz told Officer Proshek that the number appearing on B.L.’s phone was connected 
to a nurse’s station within Douglas Place.  Id.  Leintz explained that K.H. had asked to 

make telephone calls that morning.  Id.  Leintz acknowledged allowing K.H. to make the 
calls, though she claimed not to know who K.H. was calling.  Id.          
Officer Proshek notifies K.H.’s probation officer of the no-contact-order violation.  
The next morning, on January 22, Officer Proshek notified K.H.’s supervising probation 
officer, Michael Gilhoi, of K.H.’s no-contact-order violations.  ECF No. 94 at 2.  Gilhoi, 

in turn, telephoned Leintz and informed her of the possibility that a warrant might be issued 
for K.H.’s arrest.  ECF No. 102 at 4.  Gilhoi explained to Leintz that K.H. posed a flight 
risk and asked that K.H. not be told of the possibility she might be arrested.  Id. at 4–5; see 
ECF No. 94 at 3–4.  No record evidence shows that anyone at Douglas Place alerted K.H. 
of the possibility a warrant might be issued or that she might be arrested in response to 

Gilhoi’s call.                                                            
K.H.’s probation officer issues an apprehension-and-detention order.  That same 
day (January 22), Gilhoi issued an “Apprehension & Detention Order” (or “ADO”) for 
K.H.  ECF No. 136.2  In the order, Gilhoi represented that K.H.’s “temporary detention . . . 
[was] necessary to ensure community safety and . . . prevent escape.”  Id.  Gilhoi asked the 
East Grand Forks Police Department to execute the detention order.  See ECF No. 135. 

East Grand Forks police officers attempt to detain K.H.  Just after 4:30 p.m. on 
January  22,  East  Grand  Forks  Police  Corporal  Jacob  Thompson  and  Officer  Gilbert 
Trevino were dispatched to Douglas Place to apprehend and detain K.H.  Id.  Things did 
not go smoothly.  After entering the Douglas Place lobby, Corporal Thompson announced 
that he and Officer Trevino had “a probation ADO for somebody.”  ECF Nos. 124 at 1, 

133 at 0:39–0:41.  The officers spoke initially with a Douglas Place supervisor, Carly 
Carlson, and identified K.H. as the detention order’s subject.  ECF Nos. 124 at 1, 133 at 
0:47–0:51.  Carlson left the lobby to find K.H.  ECF No. 133 at 0:58–1:02; ECF No. 132-2 
at 52.  The officers did not object or express any concern about Carlson leaving the lobby 
alone to find K.H.  ECF No. 133 at 0:58–1:02.                             

Hardtke tries but fails to convince K.H. to surrender to the officers.  After a short 
time, Hardtke became involved.  ECF No. 133 at 1:35–46.  A staff member told Hardtke 
the officers were on site “to pick up somebody and Carly is looking for her.”  ECF 
No. 132-2 at 52.  Hardtke left to assist Carlson.  Id.  Hardtke and Carlson located K.H.  Id. 
at 52–53.  Hardtke spoke with K.H. for five or ten minutes.  Id. at 53.  Though Hardtke 

encouraged K.H. to “come with [Hardtke] and address her warrant,” K.H. ultimately 


2    The  apprehension-and-detention  order  cited  several  Minnesota  statutes  as 
supporting its issuance.  ECF No. 136.  No one claims Gilhoi lacked authority to issue the 
order or that the order was deficient in any respect.                     
refused.  Id. at 53–54.  As Carlson explained, K.H. “just was adamant that she was not 
going to go, she did not want to fulfill cleaning up her warrant at that time.  So we weren’t 
going to budge the situation much more.”  ECF No. 96 at 5.                

Hardtke refuses to tell the officers whether K.H. is on site.  Hardtke returned to the 
lobby to speak with the officers.  ECF No. 133 at 17:10–19.  After confirming the officers 
possessed a detention order, Hardtke informed the officers that neither she nor anyone else 
at Douglas Place could “confirm or deny that the patient’s here.”  ECF No. 124 at 6; ECF 
No. 133 at 17:19–17:30.                                                   

Officers obtain Hardtke and Carlson’s identifications to refer them for possible 
obstruction charges.  Corporal Thompson told Hardtke that he and Officer Trevino knew 
K.H. was on site, and he asked Hardtke and Carlson to produce identification.  ECF No. 
124 at 6; ECF No. 133 at 17:19–18:52.  Corporal Thompson explained that he intended to 
“forward” a description of the evening’s events to the county attorney for a possible 

obstruction charge.  ECF No. 124 at 6; ECF No. 133 at 17:19–18:52; see ECF No. 135 
(indicating in Corporal Thompson’s report that “both Hardtke and Carlson were informed 
that [the officers] would be submitting a report to the prosecuting attorneys [sic] office for 
charges of obstruction”).  Hardtke gave Corporal Thompson her name and role, along with 
Carlson’s, ECF No. 124 at 9–10; ECF No. 133 at 24:35–25:06, and the officers recorded 

information from Hardtke and Carlson’s North Dakota drivers’ licenses, ECF No. 133 at 
26:18–27:27; ECF No. 139 at 2.                                            
Hardtke cites federal law as the basis for her refusal to tell the officers whether K.H. 
is on site.  Before producing her identification, Hardtke told the officers that “CFR Part 
42” forbade her and other Douglas Place employees from disclosing the identity of any 
person receiving treatment at the facility.  ECF No. 133 at 23:46–24:00.  
K.H. absconds from Douglas Place.  Later that evening, after the officers and 

Hardtke had left the facility, K.H. absconded.  She left through an unlocked “smoking 
door” against staff advice.  ECF No. 132-2 at 58–59; see also ECF No. 137 at 2 (“It was 
reported that patient left this facility against staff advice around 10pm.  A peer reported 
that she saw [K.H.] getting into a truck and the truck drove off property.  Staff discovered 
that she was no longer in her room and she had made her bed so it looked like she was still 

in it.”).  Early the next morning, police found K.H. intoxicated at a bar in Grand Forks, 
North Dakota.  ECF No. 137 at 2.                                          
A warrant is issued authorizing a search of Douglas Place for K.H.’s intake and 
discharge records.  The next day (January 23), East Grand Forks Police Department 
Sergeant Tony Hart applied for a warrant to search Douglas Place for “[i]ntake and 

discharge paperwork for [K.H.].”  ECF No. 139 at 1; see id. at 3 (showing signature and 
date).  To support the application, Sergeant Hart attested: (1) that K.H. had been violating 
a no-contact order; (2) that a Douglas Place counselor had confirmed with K.H.’s probation 
officer that K.H. was at Douglas Place; (3) that officers had been dispatched to Douglas 
Place to apprehend K.H.; (4) that Hardtke told the officers “they cannot confirm or deny 

that [K.H.] is there”; and (5) that K.H. “signed out from [the] facility” after the officers 
left.  Id. at 2–3.  A Polk County District Judge issued the requested warrant the same day.  
Id. at 4–5.  The judge determined that K.H.’s “[i]ntake and discharge paperwork . . . 
constitutes evidence which tends to show a crime has been committed, or tends to show 
that a particular person has committed a crime.”  Id. at 4.               
Officers arrive at Douglas Place with the warrant.  Early in the afternoon of January 

23, Sergeant Hart and a second East Grand Forks Police Department officer, Detective 
Lieutenant Rodney Hajicek, arrived at Douglas Place to execute the warrant.  ECF No. 138 
at 1.  Sergeant Hart approached a person at the front desk and announced he had a search 
warrant for K.H.’s intake and discharge papers.  Id.  Sergeant Hart handed a copy of the 
warrant to a Douglas Place employee, Jaime Zuniga.  Id.  Zuniga, in turn, gave the warrant 

to Hardtke.  ECF No. 132-2 at 61–62.                                      
Hardtke (and other Douglas Place personnel) refuse to give the officers records 
described in the warrant.  Hardtke sent the warrant to Douglas Place’s compliance officer, 
Emily Peach, who told Hardtke that federal law prohibited disclosure of the information 
described in the warrant and that the warrant did not override federal law.  Id. at 62, 65.  

Hardtke directed a nurse manager to give the officers a form summarizing the facility’s 
obligations under the Code of Federal Regulations, Title 42.  Id. at 60–61.  The form, 
entitled “Confidentiality of Alcohol and Substance Abuse Programs,” was created by 
Meridian.  ECF No. 132-4.  Among other things, the form said: “A court order . . . may 
not authorize an employee who has received patient identifying information without 

consent to disclose that information for any reason, including to conduct any criminal 
investigation or prosecution of a patient.”  Id.  Hardtke also told the nurse not to give the 
officers records described in the warrant because K.H. had not consented.  ECF No. 132-2 
at 61–62.  After some back and forth with the nurse, Sergeant Hart asked to speak with the 
nurse’s boss, who turned out to be Hardtke.  ECF No. 138 at 1; ECF No. 132-2 at 62.  
Hardtke refused to produce the records; she explained her understanding that the warrant 
did not override Title 42, and she told Sergeant Hart that Douglas Place’s compliance 

officer had confirmed this understanding.  ECF No. 132-2 at 62.           
The officers contact city and county attorneys’ offices.  Sergeant Hart telephoned 
Crookston City Attorney Tanner Holten.  ECF No. 138 at 1.  (The East Grand Forks City 
Attorney was unavailable, and Holten was serving in a back-up capacity.  Id.)  At the call’s 
beginning, Sergeant Hart asked Holten whether he could arrest Hardtke for failing to 

comply with the warrant.  ECF No. 134 at 15:50–16:15 (“We got search warrants approved 
and the director is failing to comply.  Can we arrest her?”).  Sergeant Hart said he needed 
to “make a point here” and that he wanted to “lock her up.”  Id. at 17:28–17:35.  Holten, in 
turn, telephoned Polk County Assistant Attorney Clifford Wardlaw.  ECF No. 138 at 1.  
Wardlaw asked to speak with Hardtke, and Sergeant Hart put his phone on speaker.  Id.  

Wardlaw explained to Hardtke that he believed her refusal to produce records reflected an 
incorrect understanding of the law.  ECF No. 134 at 26:07–27:07.3  Wardlaw then asked to 



3    Wardlaw told Hardtke, “I’ve kind of run into this with your facility before, about 
the lack of cooperation with law enforcement and making claims that, HIPAA prevents 
this, HIPAA prevents that.  And so one of the things that we’re doing is getting search 
warrants for material that should have just been provided because it’s information that’s 
already known to probation.  So, that’s why the search warrant was sought.  And I’m not 
aware of anything that would prevent you from complying with a valid court order.  Now 
you tell me there’s a federal law, and I was a federal prosecutor for twenty-two years and 
I’m not aware of any federal law that would prevent the release of information pursuant to 
a court order.”  ECF No. 134 at 26:07–27:07.                              
speak with Peach.  ECF No. 138 at 1.  After speaking with Peach, Wardlaw advised 
Sergeant Hart to arrest Hardtke.  Id.                                     
Hardtke is arrested.  After some delay, a female officer arrived to transport Hardtke.  

ECF No. 132-2 at 66–67.  While waiting for the officer to arrive, an unidentified person 
asked why Hardtke was being arrested, to which Sergeant Hart replied, “Obstructing, 
interference with the legal process, whatever.”  ECF No. 134 at 34:40–34:50.  Hardtke was 
booked into jail at 2:06 p.m. and released at 4:06 p.m.  ECF No. 121.  She was cited with 
two misdemeanor charges, but the citation was dismissed at Wardlaw’s direction.  ECF 

No. 108 at 11–12.  Hardtke was not charged further for her conduct on January 22 or 
January 23.  Id. at 12.                                                   
Hardtke files this case.  Hardtke asserts claims across four counts in her operative 
Second Amended Complaint.  ECF No. 71.  Through § 1983, Hardtke claims Sergeant Hart 
and Detective Lieutenant Hajicek arrested her without probable cause in violation of her 

Fourth Amendment right to be free from unreasonable seizures.  Id. ¶¶ 16–18 (Count I).  
Again through § 1983, Hardtke asserts a Monell/Canton claim against the City of East 
Grand Forks arising from its assertedly “constitutionally deficient training practices with 
respect to execution of search warrants.”  Id. ¶¶ 19–22 (Count II).  Under Minnesota 
common  law,  Hardtke  asserts  false-arrest  and  false-imprisonment  claims  and  a 

malicious-prosecution claim against all Defendants.  Id. ¶¶ 23–26 (Count III) (false arrest 
and false imprisonment), ¶¶ 27–30 (Count IV) (malicious prosecution).4    

4    Hardtke originally named Wardlaw as a defendant, but the claims against him have 
since been dismissed.  See ECF Nos. 52 (suggestion of Wardlaw’s death), 77 (stipulation 
                           II                                        
Summary judgment is warranted “if the movant shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a).  A fact is “material” only if its resolution might affect the outcome 
of the suit under the governing substantive law.  Anderson v. Liberty Lobby, Inc., 

 (1986).  A dispute over a fact is “genuine” only if “the evidence is such that a 
reasonable jury could return a verdict for the nonmoving party.”   

    
“The evidence of the non-movant is to be believed, and all justifiable inferences are 

to be drawn in his favor.”  

.  When, as here, there are cross-motions for summary 
judgment, each side receives the benefit of this rule in response to the other side’s motion.  
See, e.g., Fjelstad v. State Farm Ins. Co., 

 (D. Minn. 2012).  “There 
is . . . an added wrinkle in this case: existence in the record of a videotape [and an audio 
recording] capturing the events in question.”  Scott v. Harris, 

 (2007).  

The facts will be viewed in the light depicted by these real-time recordings, setting aside 
versions of the facts that are “blatantly contradicted by the record, so that no reasonable 
jury could believe it.”  

; see, e.g., Ransom v. Grisafe, 

 (8th Cir. 
2015).                                                                    




of dismissal as to Wardlaw’s estate and the estate’s personal representative under a 
Pierringer agreement), and 80 (order of dismissal).  Hardtke’s official-capacity claims 
against the officers will be treated as claims against the City.  See Smith-Dandridge v. 
Geanolous, 

, 574 n.3 (8th Cir. 2024).                         
                          III                                        

                           A                                         

The  logical  starting  point  is  answering  whether  Sergeant  Hart  and  Detective 
Lieutenant Hajicek possess qualified immunity as a matter of law in response to Hardtke’s 
Fourth Amendment unreasonable-seizure claim.  See Cartia v. Beeman, --- F.4th ---, 
No. 23-1650, 

, at *2 (8th Cir. Dec. 10, 2024).  The general legal 
framework governing this question is settled, if sometimes difficult to apply.  Qualified 
immunity gives the officers a defense “if: (1) the plaintiff-friendly version of the facts fails 
to establish a constitutional violation; or (2) the law at the time did not clearly establish the 
right.”  

 (quoting Morgan-Tyra v. City of St. Louis, 

 (8th Cir. 2024)); 
see also Brown v. City of Golden Valley, 

 (8th Cir. 2009); Watson v. 
Boyd, 

 (8th Cir. 2021).  Courts may consider the questions in either 
order.  Pearson v. Callahan, 

 (2009).  A § 1983 plaintiff can defeat a 

claim of qualified immunity only if the answer to both questions is yes.  Id.  If the material 
facts are not genuinely disputed, then the constitutionality of an officer’s conduct is a 
question of law.  Thompson v. Reuting, 

 (8th Cir. 1992); see also Pollreis 
v. Marzolf, 

, 732 n.2 (8th Cir. 2023); Bell v. Irwin, 

 (7th Cir. 
2003).                                                                    

Here, owing to the character of Hardtke’s claims and the law governing qualified 
immunity’s application to assertedly unconstitutional arrests, it makes better sense just to 
go  straight  to  the  second  question—that  is,  whether  the  officers  possessed  arguable 
probable cause to arrest Hardtke for “aiding an offender” in violation of 

 or for “obstructing legal process” in violation of 

.  “The 
Fourth Amendment right of citizens not to be arrested without probable cause is indeed 
clearly established.”  Kuehl v. Burtis, 

 (8th Cir. 1999).  “[A]n officer is 

entitled  to  qualified  immunity  if  there  is  at  least  ‘arguable  probable  cause’”  for  a 
warrantless arrest.  Borgman v. Kedley, 

, 522–23 (8th Cir. 2011) (quoting 
Walker v. City of Pine Bluff, 

 (8th Cir. 2005)).  “Probable cause to make 
a warrantless arrest exists ‘when the totality of the circumstances at the time of the arrest 
are sufficient to lead a reasonable person to believe that the defendant has committed or is 

committing an offense.’”  Ulrich v. Pope County, 

 (8th Cir. 2013) 
(quoting Borgman, 

).  If an officer makes a warrantless arrest under the 
mistaken  belief  that  probable  cause  for  the  arrest  exists,  that  officer  is  shielded  by 
qualified immunity “if the mistake is ‘objectively reasonable.’”  Borgman, 

 (quoting  Amrine  v.  Brooks,  

  (8th  Cir.  2008)).    The 

arguable-probable-cause inquiry is not limited to charged offense or offenses; the question 
is whether the officer was aware of facts justifying a reasonable belief that some offense 
was  being  committed.    See  Devenpeck v. Alford, 

,  153–54  (2004).5  
Answering whether an arrest was supported by arguable probable cause requires comparing 
each charge—that is, the state law or laws the officers claim were arguably violated and 


5    Generally, it would seem impracticable and unwise for a court to undertake this 
analysis by independently identifying what criminal law or laws might have justified a 
§ 1983 plaintiff’s arrest.  Here, the officers have identified subdivisions of two Minnesota 
statutes, § 609.495, subdiv. 1(b) and § 609.50, subdivs. 1(1) and 1(2), as supporting 
Hardtke’s  arrest.    See  Defs.’  Mem.  in  Supp.  [ECF  No.  86]  at  20–24.    The 
arguable-probable-cause analysis here will not go beyond these statutes.   
justified an arrest—with the plaintiff’s arrest-prompting conduct, see, e.g., Robbins v. City 
of Des Moines, 

 (8th Cir. 2021), keeping in mind that “[i]n close qualified 
immunity cases, the absence of judicial guidance can be significant because ‘[p]olice 

officers are not expected to parse code language as though they were participating in a law 
school seminar,’” Walker, 

 (quoting Lawyer v. City of Council Bluffs, 

 (8th Cir. 2004)).                                         
                           B                                         
                           1                                         

The officers contend they had arguable probable cause to arrest Hardtke for aiding 
an offender (K.H.) in violation of 

, subdiv. 1(b), based on Hardtke’s 
actions on January 22, 2020.  Defs.’ Mem. in Supp. at 20–24.  The version of this statute 
in effect during January 2020 said this:                                  
     Whoever knowingly harbors, conceals, or aids a person who is    
     on probation, parole, or supervised release because of a felony 
     level conviction and for whom an arrest and detention order     
     has been issued, with intent that the person evade or escape    
     being taken into custody under the order, may be sentenced to   
     imprisonment for not more than three years or to payment of a   
     fine  of  not  more  than  $5,000,  or  both.  As  used  in  this 
     paragraph, “arrest and detention order” means a written order   
     to take and detain a probationer, parolee, or supervised releasee 
     that is issued under section 243.05, subdivision 1; 244.195;    
     or 401.025.                                                     

, subdiv. 1(b) (2020).6  The statute may be separated into four 
essential elements, couched in this case’s facts: (1) K.H. was on probation, parole, or 

6    The version of 

 in effect on Hardtke’s arrest date was enacted 
in 2016.  See 

 (S.F. No. 3113).                      
supervised release because of a felony-level conviction; (2) Hardtke knew or believed that 
K.H. was on probation, parole, or supervised release because of a felony-level conviction; 
(3) an arrest-and-detention order was issued to take K.H. into custody for a violation of 

probation, parole, or supervised release; (4) and Hardtke harbored, concealed, or aided 
K.H. with the intent that K.H. evade or escape being taken into custody pursuant to the 
arrest-and-detention order.  Id.; see 10A Minn. Prac., CRIMJIG 29.27 (7th ed. Nov. 2024 
Update) (addressing equivalent text in § 609.495, subdiv. 1(b)’s current version). 
The Minnesota Court of Appeals addressed the statute’s “harbors, conceals, or aids” 

clause—or, more precisely, an identical clause in a prior version of the statute—in State v. 
Ogris, No. A08-1001, 

 (Minn. Ct. App. Dec. 29, 2009).  There, the court 
ascribed common-sense meanings to “harbor,” “conceal,” and “aid.”  Regarding “harbor” 
and “conceal,” the court explained:                                       
     “‘To harbor a person’ means to furnish the person with shelter  
     or  food  in  such  circumstances  that  the  person  is  aided  in 
     avoiding  detection  by  lawful  authority.”   10A Minnesota    
     Practice, CRIMJIG 24.11.  And under CRIMJIG 24.11, “‘To         
     conceal a person’ means to make it more difficult for the       
     person  to  be  found.”   

    Black’s  Law  Dictionary defines 
     “harboring”  as  “[t]he  act  of  affording  lodging,  shelter,  or 
     refuge to a person, esp. a criminal or illegal alien.”  Black’s 
     Law Dictionary 733 (8th ed. 2004).  The American Heritage       
     Dictionary  defines  “harbor”  as  “[t]o  give  shelter  to.”   The 
     American Heritage Dictionary 798 (4th ed. 2006).  Black's       
     Law  Dictionary defines  “concealment”  as  “[t]he  act  of     
     refraining from disclosure; esp., an act by which one prevents  
     or hinders the discovery of something; a cover-up” and “[t]he   
     act of removing from sight or notice; hiding.”  Black’s Law     
     Dictionary 306  (8th  ed.  2004).   The  American  Heritage     
     Dictionary defines “conceal” as “[t]o keep from being seen,     
     found,  observed,  or  discovered.”   The  American  Heritage   
     Dictionary 381 (4th ed. 2006).                                  
Ogris, 

, at *4.  In defining “aid,” the court first cited the leading legal 
dictionary’s definition of “‘aid and abet’ as ‘[t]o assist or facilitate the commission of a 
crime, or to promote its accomplishment.’”  

 (citing Black’s Law Dictionary 76 (8th ed. 
2004)).  The court recognized that, outside the criminal context, “aid” was defined more 
broadly “as ‘[t]o help or furnish with help, support, or relief’ and ‘[t]he act or result of 

helping; assistance.’”  

 (citing The American Heritage Dictionary 36 (4th ed. 2006)).  
The court concluded that the meanings of “harbor,” “conceal,” and “aid” “are within the 
ordinary understanding of a jury,” meaning in turn that the district court “did not err by 
declining to define the terms for the jury.”  

  In other words, in the Ogris court’s view, 
applying § 609.495, subdiv. 1(b) does not require lay jurors or anyone else (including 

police officers) to “parse code language as though they were participating in a law school 
seminar.”  Walker, 

 (quoting Lawyer, 

).    
On  this  record,  the  undisputed  facts  show  that  Sergeant  Hart  and  Detective 
Lieutenant  Hajicek  did  not  possess  arguable  probable  cause  to  believe  that  Hardtke 
“harbored,” “concealed,” or “aided” K.H. on January 22, 2020.  (1) Hardtke did not 

“harbor” K.H. because no evidence suggests Hardtke did anything to help K.H. avoid 
detection.  Hardtke did the opposite; she tried to persuade K.H. to surrender to the officers.  
ECF No. 132-2 at 53–54.  Hardtke could not rationally have been charged for K.H.’s refusal 
to surrender or for failing to use force to bring K.H. to the officers.  It is difficult to 
understand how Hardtke’s statement that she could not “confirm or deny” that K.H. was 

on site might have aided K.H. to avoid detection.  Hardtke did not give the officers false 
information.  She supported her refusal to volunteer K.H.’s presence by citing to what she 
believed  was  an  overriding  federal  regulation.    Regardless,  Corporal  Thompson  told 
Hardtke that he and Officer Trevino knew K.H. was on site, ECF No. 133 at 17:19–18:52, 

making Hardtke’s response beside the point.                               
(2) Hardtke did not “conceal” K.H. because no evidence suggests Hardtke did 
anything to make it more difficult for the officers to find K.H.  As far as the record shows, 
when the officers were at Douglas Place, K.H. remained on site too.  The record shows the 
officers did not leave the lobby area to search for K.H., so no evidence shows where the 

officers might have found her had they looked or what difficulties, if any, the officers might 
have encountered.  The point is that no evidence shows Hardtke created any challenges for 
the officers had they searched for K.H.7                                  
(3) Finally, Hardtke did not “aid” K.H. in the sense § 609.495 requires.  That is, she 
did not help or assist K.H. in evading law enforcement or in committing a crime.  It is true 

that Douglas Place and its staff—including Hardtke—“aided” K.H. in a different, non-
crime-furthering sense.  They provided residential drug treatment services to her in line 
with a Stearns County District Court order.  Hardtke could not rationally be arrested for 



7    The officers assert that Hardtke “continued to shelter [K.H.] in [K.H.’s] room after 
[Hardtke] told the police officers that she could neither admit nor deny whether [K.H.] was 
present at Douglas.”  Defs.’ Mem. in Supp. at 21.  The officers do not say what they mean 
by “shelter,” and they cite no record evidence to support the factual assertion that K.H. 
remained in her room while the officers were on site.  Regardless, the assertion favors 
Hardtke.  It means that, had they searched, the officers would have found K.H. where the 
officers should reasonably have expected her to be.                       
aiding K.H. in violation of § 609.495 for lawful treatment-related activities she (and other 
Douglas Place staff) provided pursuant to the court order releasing K.H. to their care.8 
The  officers  argue  that  a  Minnesota  Court  of  Appeals  case—State  v.  Patch, 

 (Minn. Ct. App. 1999)—shows that they possessed arguable probable 
cause to arrest Hardtke for aiding K.H. in violation of § 609.495, but it’s difficult to see 
how.  Patch did not address an aiding-an-offender charge; it reversed a conviction for 
obstruction  under  the  1996  version  of  

,  subdiv.  1(1).    Patch, 
594 N.W.2d at 537–40.  The court of appeals explained in Patch that the Minnesota 

Supreme Court had “in a 1988 case rejected an overbreadth challenge to the [obstruction] 
statute, construing it narrowly as ‘directed solely at physical acts.’”  

 at 538 (citing State 
v. Krawsky, 

 (Minn. 1988)).  The court of appeals also explained that 
the supreme court had “rejected the claim that the statute applied to verbal conduct,” unless 
the “words by themselves have the effect of physically obstructing or interfering with a 

police officer in the performance of his duties.”  

 (quoting Krawsky, 

).  
Applying these principles, the court based its reversal of Patch’s conviction on the absence 


8    There is another problem with applying § 609.495 to support Hardtke’s arrest.  The 
statute requires that K.H. have been “on probation, parole, or supervised release because 
of a felony level conviction.”  

, subdiv. 1(b) (emphasis added).  As 
far as the record shows, K.H.’s designation to Douglas Place did not result from a felony 
(or lesser) conviction.  The apprehension-and-detention order Gilhoi sent to the East Grand 
Forks  Police  Department  noted  clearly  that  K.H.  was  “on  pre-trial  supervision”  for 
domestic assault charges.  ECF No. 136.  Because the officers could not reasonably have 
concluded that Hardtke harbored, concealed, or aided K.H., it is not necessary to address 
whether this problem might independently have deprived the officers of arguable probable 
cause to arrest Hardtke.                                                  
of evidence showing that Patch physically obstructed an officer or engaged in verbal 
conduct that had the effect of physically obstructing or impeding an officer.  

 at 538–39. 
It is true the court included the following observation in its opinion: “The state could 

have charged Patch with aiding an offender to avoid apprehension if it could prove Patch 
knew [the person she aided] had committed a felony.”  Id. at 540.  For two fundamental 
reasons, this observation does not support the conclusion that the officers had arguable 
probable cause to arrest Hardtke for aiding K.H. under § 609.495.  First, the observation is 
obiter dictum.  It was not necessary to, and played no role in, Patch’s disposition.  Second, 

any guidance the observation might provide is limited by Patch’s facts, and they are 
materially different from this case’s facts.  Patch did not, as the officers seem to imply, 
merely tell a felon that “[t]he cops are coming to get you.”  Patch, 

.  
Patch also “helped her look for a back door to make her escape,” stood lookout at the front 
door, and “offered her a ride and was ‘pretty insistent’ that she come with her.”  

  We 

don’t have anything like that here.                                       
The officers also rely on Ogris, arguing it supports their “claim of probable cause 
to arrest [Hardtke] for violating 

, subd. 1(b).”  Defs.’ Mem. in Supp. 
at 23.  Ogris, unlike Patch, addressed a conviction under § 609.495, subdiv. 1(b), but that 
is where the similarities between Ogris and this case end.  In Ogris, officers sought to 

execute a bench warrant for the arrest of a woman named Kara Olson.  

, 
at *1.  The officers went to a residence, thinking they might find Olson there.  

  The 
officers encountered Ogris at the door and told him they were looking for Olson.  

  Ogris 
told the officers Olson was his girlfriend and that she had moved to Minneapolis.  

  
Several times Ogris told the officers that Olson was not in the residence.  

 at *1–2.  And 
Ogris told the officers that they could not enter the residence, offering as justifications “that 
he had locked himself out and that the unit’s resident, ‘Judy,’ was passed out drunk on 

vodka.”  Id. at *2.  The officers eventually obtained permission to search the residence and 
found Olson hiding in a closet and arrested her.  Id.  Ogris’s conviction-justifying facts are 
materially different from this case’s facts.  Hardtke never told the officers that K.H. wasn’t 
at Douglas Place.  (If she had, it wouldn’t have done any good.  The officers knew K.H. 
was at Douglas Place.)  Hardtke did not give the officers any reason—much more a false 

reason—why they could not search Douglas Place for K.H.  And there is no evidence 
showing that whatever Hardtke told K.H. prompted K.H. to hide or evade the officers while 
they were on site.  Ogris does not show the officers had arguable probable cause to arrest 
Hardtke for aiding K.H. in violation of § 609.495, subdiv. 1(b).          
                           2                                         

The  officers  argue  they  had  arguable  probable  cause  to  arrest  Hardtke  for 
obstructing legal process in violation of 

, subdivs. 1(1) and (2), based 
on Hardtke’s actions on January 22 and 23, 2020.  Defs.’ Mem. in Supp. at 20–24.  As 
relevant here, the version of this statute in effect during January 2020 criminalized the 
intentional obstruction, hinderance, or prevention of “the lawful execution of any legal 

process, civil or criminal, or apprehension of another on a charge or conviction of a 
criminal offense,” and the intentional obstruction, resistance, or interference “with a peace 
officer while the officer is engaged in the performance of official duties.”  

, subdivs. 1(1), (2).9                                            
As  discussed,  the  Minnesota  Supreme  Court  long  ago  in  Krawsky  construed 

§ 609.50 narrowly as “directed solely at physical acts.”  Krawsky, 

.  The 
court summarized the statute as follows:                                  
     [T]he  statute  forbids  intentional  physical  obstruction  or 
     interference with a police officer in the performance of his    
     official duties.  The statute may be used to punish “fighting   
     words” or any other words that by themselves have the effect    
     of physically obstructing or interfering with a police officer in 
     the performance of his duties—e.g., the statute may be used to  
     punish a person who runs beside an officer pursuing a felon in  
     a public street shouting and cursing at the officer if the shouting 
     and cursing physically obstructs the officer’s pursuit and if the 
     person intends by his conduct to obstruct or interfere with the 
     officer.  However, the statute does not apply to ordinary verbal 
     criticism directed at a police officer even while the officer is 
     performing his official duties . . . .                          

 at 877–78 (citation omitted).  The court observed also that the obstruction statute does 
not punish “interrupting” an officer, even intentionally.  Id.; see also State v. Tomlin, 

 (Minn. 2001) (recognizing that § 609.50 is “directed solely at a 
particular kind of physical act that physically obstructs or interferes with an officer” or “in 
limited circumstances . . . ‘fighting words’ [that] have the effect of physically obstructing 
or interfering with an officer”).  Though Krawsky addressed an earlier version of the 
statute, its interpretation remains valid.  See Hoyland v. McMenomy, 

 
(8th Cir. 2017) (“As Minnesota law makes abundantly clear, obstruction must be either 

9    The version of 

 in effect on Hardtke’s arrest date was enacted 
in 2008.  See Act of May 13, 2008, ch. 304 § 1 (H.F. No. 2877).           
physical obstruction or verbal conduct, such as fighting words, that has the effect of 
physically obstructing officers in the performance of their duties.  Nowhere in Minnesota 
law does mere physical presence at a distance constitute obstruction.”), abrogated on other 

grounds by Nieves v. Bartlett, 

 (2019); see Laney v. City of St. Louis, 

, 1157 n.2 (8th Cir. 2023) (recognizing abrogation).  The officers cite no authority 
suggesting Krawsky is no longer good law.                                 
On  this  record,  the  undisputed  facts  show  that  Sergeant  Hart  and  Detective 
Lieutenant Hajicek did not possess arguable probable cause to believe that Hardtke violated 

§ 609.50 on January 22 or 23, 2020.  Hardtke did not physically obstruct the officers on 
either date.  And what few words she spoke—though evidently not what the officers wanted 
to hear—cannot reasonably be characterized as “fighting words,” much more fighting 
words that might have had the effect of physically obstructing or interfering with the 
officers’ performance of their duties.                                    

The officers seem to advance two January 23-connected arguments to support that 
they possessed arguable probable cause to arrest Hardtke for violating § 609.50, but neither 
is persuasive.  First, the officers appear to argue that Hardtke had a duty to comply with 
the officers’ January 23 execution of the search warrant.  See Defs.’ Mem. in Supp. at 21.  
The officers do not describe the precise contours of the duty they believe Hardtke had.  The 

officers cite no authority supporting the proposition that an organization’s employees have 
a duty to affirmatively assist officers in their execution of search warrants.  The proposition 
seems questionable.  Cf. Andresen v. Maryland, 

, 473–74 (1976) (recognizing 
that “the individual against whom the search is directed is not required to aid in the 
discovery, production, or authentication of incriminating evidence”).  Regardless, no facts 
show  that  Hardtke  physically  interfered  with  the  officers’  execution  of  the  warrant.  
Hardtke told the officers that she believed federal law prohibited her from giving the 

officers K.H.’s records.  ECF No. 132-2 at 62.  And as far as the record shows, nothing 
prevented the officers from searching for K.H.’s records or explains why they did not.  
Second, the officers argue that their reliance on Wardlaw’s January 23 directive to arrest 
Hardtke gave them arguable probable cause to do just that.  Following the prosecutor’s 
advice “does not automatically cloak [officers] with qualified immunity.”  Frye v. Kan. 

City Mo. Police Dept., 

, 792 (8th Cir. 2004) (alteration in original); see 
Womack v. City of Bellefontaine Neighbors, 

 (8th Cir. 1999).  Here, 
Wardlaw had no more arguable probable cause than the officers.  His directive to arrest 
Hardtke was based just on information the officers communicated to him about Hardtke’s 
conduct in response to the search warrant on January 23.  See ECF No. 134 at 19:41–19:45.  

That the officers obeyed Wardlaw’s directive does not help them.          
                           *                                         
The undisputed facts establish that Sergeant Hart and Detective Lieutenant Hajicek 
lacked arguable probable cause to arrest Hardtke for aiding K.H. in violation of 

 or for obstruction in violation of 

.  Therefore, Hardtke’s 

motion for partial summary judgment will be granted.  To the extent it concerns the 
qualified-immunity defense to Hardtke’s § 1983/Fourth Amendment claim against the 
officers, Defendants’ summary-judgment motion will be denied.             
                          IV                                         
Hardtke’s  §  1983 claim  against  the  City  of  East  Grand  Forks  advances  a 
failure-to-train theory.  “It is well established that a municipality cannot be liable under 
§ 1983 under a respondeat superior theory, that is, solely because it employs a tortfeasor.”  

Robbins, 

 (quotation omitted).  “A municipality may only be liable for a 
constitutional violation resulting from (1) an official municipal policy; (2) an unofficial 
custom; or (3) failure to train or supervise.”  

 at 681–82.            
“It is difficult to establish a municipality’s culpability based on failure to train, 
which must amount to deliberate indifference to the rights of persons with whom the 

untrained employees come into contact.”  

 (cleaned up).  “Deliberate indifference 
requires proof the municipality disregarded a known or obvious consequence of its action 
or inaction.”  Id.; see Poemoceah v. Morton County, 

, 1057–58 (8th Cir. 
2024) (“A failure to train is actionable under § 1983 if, ‘in light of the duties assigned to 
specific officers or employees[,] the need for more or different training is so obvious, and 

the  inadequacy  so  likely  to  result  in  the  violation  of  constitutional  rights,  that  the 
policymakers . . . can reasonably be said to have been deliberately indifferent to the need.’” 
(quoting City of Canton v. Harris, 

 (1989))).  The municipality’s 
deliberate  indifference  must  cause  the  constitutional  violation.    Smith-Dandridge  v. 
Geanolous, 

 (8th Cir. 2024).  That is, the failure to train “must be the 

‘moving force’ that led to the alleged deprivation of a constitutional right.”  

 (quoting 
Speer v. City of Wynne, 

, 985–86 (8th Cir. 2002)).            
The  constitutional  deprivation  here  was  an  arrest  without  probable  cause,  but 
Hardtke has not identified evidence showing the City’s deliberate indifference to arrests 
without probable cause.  (1) Hardtke cites record evidence she claims demonstrates “that 
East Grand Forks Police Chief Michael Hedlund had notice there was an ongoing conflict 
between Douglas Place and East Grand Forks Police pertaining to sharing information 

about Douglas Place patients.”  Pl.’s Mem. in Opp’n [ECF No. 143] at 38.  The cited 
evidence includes email communications between Sergeant Hart on one side, and Hardtke 
and Zuniga on the other.  ECF No. 144-5 at 20–25.  These communications address the 
City and County Attorney’s concerns regarding Douglas Place’s failure to report drug 
crimes committed on site, adverse community consequences caused by Douglas Place’s 

operations and policies, and Douglas Place’s response to these issues.  See 

  These 
communications do not mention or touch the subject of arrests or the East Grand Forks 
Police Department’s arrest practices.  See 

  They do not show a need for more training 
concerning arrest practices or the subject of probable cause.             
(2)  Hardtke  argues  that  the  officers’  January  22  threat  to  refer  Hardtke  for 

obstruction charges shows the City’s deliberate indifference.  Pl.’s Mem. in Opp’n at 39.  
This is not persuasive.  As a reminder, that day’s events involved a failed attempt by 
Corporal Thompson and Officer Trevino to execute the arrest-and-detention order for K.H., 
interactions between the officers and Hardtke (and other Douglas Place staff), and Corporal 
Thompson’s threat to refer Hardtke for obstruction charges.  It is difficult to understand 

how anything that happened on January 22 would have given the City notice of the need 
to train its officers regarding arrest practices or the subject of probable cause.  No arrest 
occurred that day, much more a problematic arrest.  And Hardtke does not claim that 
anything  the  officers  did  on  January  22  was  unlawful.    She  has  not  sued  Corporal 
Thompson or Officer Trevino.                                              
(3) Finally, Hardtke relies on the opinion of her expert witness “that [the] East Grand 

Forks  Police  Department  failed  to  train  their  [sic]  officers  to  understand  the  legal 
responsibilities and restrictions that apply to a drug and alcohol treatment facility like 
Douglas Place.”  ECF No. 132-6 at 8; see Pl.’s Mem. in Opp’n at 39.  For several reasons, 
this opinion does not show the City’s deliberate indifference.  The expert identifies no prior 
problematic arrests or other conduct that might have notified the City of the need to train 

officers regarding federal regulations governing residential treatment centers.  If the expert 
had  identified  that  sort  of  thing,  a  causation  problem  would  remain.    Again,  the 
unconstitutionality of Hardtke’s arrest resulted from the absence of probable cause to think 
Hardtke aided K.H. or obstructed legal process in violation of Minnesota law.  No doubt 
Hardtke’s understanding of the facility’s obligations under federal regulations motivated 

her statements and conduct, but answering whether the officers had probable cause to arrest 
Hardtke  does  not  depend  on  Hardtke’s  motivations.    To  put  it  another  way,  the 
unconstitutionality of Hardtke’s arrest did not result from the officers’ lack of knowledge 
regarding federal regulations, so it is difficult to understand how training regarding the 
regulations would have solved the lack-of-probable-cause problem.  If that weren’t so, 

Hardtke’s  expert  does  not  opine  that  Hardtke  (or  Douglas  Place)  had  a  correct 
understanding of Title 42.  ECF No. 132-6 at 8.  Nor does the expert rule out the possibility 
that any training might reasonably have involved a different or contrary understanding of 
the regulations.  Hardtke has not shown how training in this area might have prevented her 
unconstitutional arrest.                                                  
                           V                                         

Cases  from  this  District  dating  back  years  consistently  treat  Minnesota  false 
imprisonment and false arrest claims as essentially a single claim when they are asserted 
against a law enforcement officer.  See, e.g., Tillis v. City of Minneapolis, No. 12-cv-324 
(ADM/TNL), 

, at *9 (D. Minn. Nov. 18, 2013) (“Under Minnesota law, 
the tort of false imprisonment, when asserted against a [law enforcement officer], is similar 

to that of false arrest.” (quoting Cornelious v. Brubaker, No. 01-cv-1254 (MGD/JGL), 

, at *11 (D. Minn. June 25, 2003))); Sang v. City of St. Paul, No. 
09-cv-455 (RHK/SRN), 

, at *7 (D. Minn. June 8, 2010) (same); Mann 
v. Shevich, No. 08-cv-5202 (ADM/RLE), 

, at *8 (D. Minn. Feb. 23, 2010) 
(same); Adewale v. Whalen, 

 (D. Minn. 1998) (same).  “Both 

torts require an unlawful arrest performed by the defendant.”  Adewale, 

.  “Under Minnesota law, ‘if an arrest is made without proper legal authority, it is a 
false arrest, and so false imprisonment.’”  Baribeau v. City of Minneapolis, 

 (8th Cir. 2010) (quoting Lundeen v. Renteria, 

 (Minn. 1974)).  
An arrest made without probable cause lacks proper legal authority.  Perkins v. St. Louis 

County, 

 (Minn. Ct. App. 1986).                        
Obviously,  my  determination  in  the  §  1983/Fourth  Amendment  context  that 
Sergeant Hart and Detective Lieutenant Hajicek lacked arguable probable cause to arrest 
Hardtke means the officers arrested and detained her without proper legal authority for 
purposes of her false arrest and false imprisonment claims.  If that were the only issue, 
Defendants’ summary-judgment motion would be denied on that basis.  There is more to 
this question, however.                                                   

The officers argue that they—and by extension, the City—possess official immunity 
as a matter of law in response to Hardtke’s false arrest and false imprisonment claims.  “As 
distinguished from the ‘qualified immunity’ afforded peace officers when addressing 

 claims, under Minnesota law a public official is entitled to official 
immunity from state law claims when that official is charged by law with duties that require 

the exercise of judgment or discretion.”  Heard v. City of Red Wing, 

, 
792  (D.  Minn.  2019) (quoting  Johnson  v.  Morris,  

  (Minn. 
1990)); accord Ward v. Olson, 

 (D. Minn. 2013) (quoting Dokman 
v. County of Hennepin, 

 (Minn. Ct. App. 2001)).  If an official’s 
actions require the exercise of discretion, he is entitled to official immunity “unless the 

official committed a willful or malicious wrong.”  Heard, 393 F. Supp. 3d at 792 (citing 
Pletan v. Gaines, 

 (Minn. 1992)).                        
Cases establish that the officers’ actions in arresting Hardtke were discretionary for 
qualified immunity purposes.  “Generally, police officers are classified as discretionary 
officers entitled to [official] immunity.” Ward, 

 (quoting Johnson, 

); see also Yang v. City of Brooklyn Park, 

 
(D. Minn.  2016)  (“Under  Minnesota  law,  official  immunity  protects  police  officers 
engaged in law enforcement efforts unless they act with subjective malice.” (quoting 
Wertish v. Krueger, 

 (8th Cir. 2006))).  Hardtke identifies no reason 
to reach a different conclusion here.                                     
Cases also establish, however, that a reasonable jury could find the officers acted 

willfully or maliciously.  In answering this question, “courts consider whether the official 
has intentionally committed an act that he or she had reason to believe is prohibited.  This 
contemplates less of a subjective inquiry into malice, which was traditionally favored at 
common law, and more of an objective inquiry into the legal reasonableness of an official’s 
actions.”    Heard,  393  F.  Supp.  3d  at  792  (cleaned  up)  (quoting  Hassan  v.  City  of 

Minneapolis, 

 (8th Cir. 2007)); see also Brown v. City of Golden Valley, 

, 500–01 (8th Cir. 2009) (“In the context of official immunity, ‘willful’ and 
‘malicious’ are synonymous, and the Minnesota Supreme Court has defined malice as 
‘nothing more than the intentional doing of a wrongful act without legal justification or 
excuse, or, otherwise stated, the willful violation of a known right.’” (quoting Rico v. State, 

 (Minn. 1991))).  The malicious-wrong exception to official immunity 
“anticipates liability only when an official intentionally commits an act that he or she then 
has reason to believe is prohibited.”  Rico, 

.  “The determination of 
whether an officer acted maliciously or willfully is usually a question of fact for the jury.”  
Ward, 

 (citing Elwood v. Rice County, 

 (Minn. 

1988)).  Here, the same facts that show the absence of arguable probable cause to support 
Hardtke’s arrest—that is, the officers’ violation of a clearly established right—would give 
a reasonable jury ground to find the officers acted willfully or maliciously for official 
immunity’s purposes.                                                      
                          VI                                         
The law governing the merits of Hardtke’s malicious-prosecution claim seems clear 
enough:                                                                   

     To state a malicious-prosecution claim in Minnesota, a party    
     must allege that “(1) the suit [was] brought without probable   
     cause and with no reasonable ground on which to base a belief   
     that the plaintiff would prevail on the merits; (2) the suit [was] 
     instituted and prosecuted with malicious intent; and (3) the suit 
     . . . ultimately terminate[d] in favor of the defendant.”  Stead-
     Bowers v. Langley, 

 (Minn. Ct. App.          
     2001).  “Probable cause is a reasonable ground of suspicion,    
     supported by circumstances sufficiently strong in themselves    
     to warrant a cautious man in the belief that the person accused 
     is guilty of the offense with which he is charged.”  Allen v.   
     Osco Drug, Inc., 

 (Minn. 1978) (internal     
     quotation  marks  omitted).    “Only  reasonable  belief  that  
     probable  cause  existed  is  necessary  to  negate  a  malicious 
     prosecution claim.”  Dunham v. Roer, 

        
     (Minn. Ct. App. 2006) (internal quotation marks omitted).       

Nygard v. City of Orono, 

 (8th Cir. 2022).  “Malice,” for malicious-
prosecution’s  purposes,  is  “the  intentional  doing  of  a  wrongful  act  without  legal 
justification or excuse, or, otherwise stated, the willful violation of a known right.”  Rico, 

 (quotation omitted).  A malicious-prosecution “plaintiff must prove, at 
a minimum, that the defendant knew that its actions were wrong.”  Hirtzinger v. Pinnacle 
Airlines, Inc., No. 06-cv-1609 (PJS/RLE), 

, at *16 (D. Minn. Mar. 27, 
2008) (citing Osco Drug, Inc., 

).                        
Judged  against  these  elements,  Hardtke’s  malicious-prosecution  claim  seems 
trial-worthy.  (1) The officers lacked probable cause to arrest Hardtke and charge her with 
obstruction under 

, subdiv. 1(2).  See supra section III(B)(2).  (2) A 
reasonable jury could find that the officers knew their actions were wrong.  Legally, the 
absence of arguable probable cause means any reasonable officer knew or should have 
known that Hardtke’s arrest lacked legal justification and was wrong.  And, whether 

required or not, there is evidence showing the officers possessed a subjective intent to 
execute the warrant on January 23 with the aim, not of retrieving K.H.’s records, but of 
arresting Hardtke.  In his deposition, Sergeant Hart testified that the search warrant for 
K.H.’s records was intended solely as a means of investigating Hardtke and Carlson.  ECF 
No. 108 at 7 (“Q: Can you tell me who was the subject of the investigation for which you 

obtained a search warrant?  A: It would have been Amber Hardtke and Carly Carlson.  
Q: And so [K.H.] was no longer under investigation when you saw the search warrant?  
A: No.  She had already absconded from the Douglas House.  Q: So the sole basis for your 
investigation when you came to Douglas Place, when you initially obtained a search 
warrant and then you came to Douglas Place to execute it, at this point you’re solely 

investigating Douglas Place Staff, and not [K.H.]; is that true?  A: Correct.”).  (3) There is 
no dispute the charges against Hardtke were dismissed.  ECF No. 144-3.    
Defendants’ arguments for summary judgment on this claim are not persuasive.  
Defendants cite Thompson v. City of Minneapolis, No. 06-cv-3131 (JMR/FLN), 

 (D. Minn. Apr. 22, 2008), and Jacobson v. Mott, No. 07-cv-4420 (DWF/RLE), 

 (D. Minn. Jan. 16, 2009), for the proposition that police officers cannot 
be sued for malicious prosecution because “police officers are not prosecutors.”  Defs.’ 
Mem. in Supp. at 34.  Consider Thompson.  There, the court entered summary judgment 
against a malicious prosecution claim, along the way observing, “Officers . . . are not 
prosecutors.”  

, at *9–10.  The court also acknowledged, however, that 
officers who play more than a “‘passive’ role in the initiation of criminal charges” could 
be subject to a malicious-prosecution claim.  

 at *10 (quoting Morgan v. McLaughlin, 

 (Minn. 1971)).  Jacobson is consistent with these rules.  See 

, at *3–4.  Here, the officers played more than a passive role in the initiating 
charges.  Defendants also cite cases for the proposition that a malicious-prosecution claim 
cannot survive to trial if an arrest was justified by probable cause.  See Defs.’ Mem. in 
Supp. at 35.  The absence of probable cause to justify Hardtke’s arrest means these cases 

are beside the point.                                                     

Based on the foregoing, and on all the files, records, and proceedings herein, IT IS 
ORDERED THAT:                                                             
1.   Defendants City of East Grand Forks, Lieutenant Rod Hajicek, and Sergeant 

Tony Hart’s Motion for Summary Judgment [ECF No. 84] is GRANTED IN PART AND 
DENIED IN PART as follows:                                                
     a.   The motion is GRANTED as to Count 2 of Plaintiff Amber Hardtke’s 
          Second Amended Complaint.                                  
     b.   The motion is in all other respects DENIED.                
2.   Plaintiff Amber Hardtke’s Motion for Partial Summary Judgment [ECF No. 

129] is GRANTED.                                                          
Dated: December 16, 2024           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court