author: KLAPHAKE, Judge.

text:
    Thomas DOKMAN, Appellant, v. COUNTY OF HENNEPIN, et al., Respondents.
    No. C8-01-827.
    Court of Appeals of Minnesota.
    Dec. 18, 2001.

      Robert Bennett, Heidi Ann Schneider, Eric Hageman, Gartner, Bennett & Schupp, P.C., Minneapolis, MN, for appellant.
    Amy Klobuchar, Hennepin County Attorney, Toni A. Beitz, Assistant County Attorney, Minneapolis, MN, for respondents.
    Considered and decided by SCHUMACHER, Presiding Judge, KLAPHAKE, Judge, and PETERSON, Judge.
   OPINION

KLAPHAKE, Judge.

Appellant Thomas Dokman sued respondents Hennepin County, Hennepin County Sheriffs Department, Sheriff Patrick D. McGowan in his official capacity, and deputy sheriffs William Wilen, Rocky Fontana, and John Cich (officers), individually and in their official capacity. He alleged violations of his constitutional rights under the Fourth, Fifth, and Fourteenth Amendments, assault, battery, false imprisonment, and infliction of emotional distress arising out of a stand-off situation with deputies at his house. Dokman challenges the district court’s grant of summary judgment to the officers on immunity grounds. Because the officers had probable cause to arrest Dokman and their actions were protected by statutory and official immunity, we affirm.

FACTS

On November 16, 1996, Dokman called his estranged wife, Therese Dokman and became angry when she refused to come to his house. Threatening to kill himself, Dokman clicked a shotgun multiple times into the phone attempting to make Therese Dokman believe he would carry out his threat. Dokman later testified that he wanted only to scare her into thinking that he would commit suicide.

Therese Dokman called the police. When the officers arrived at Dokman’s home, he was not cooperative, refusing to come out of the house and thwarting attempts to communicate over the telephone. The officers repeatedly attempted to establish contact. Dr. Steven Geiger, the police psychologist on site, noted that Dok-man’s “responses were irrational and no[t] fit for the situation.” For example, Dok-man would answer the telephone and say: “You are not a very good at telemarketing”; ‘We don’t subscribe to Sears or anybody else”; “Dokman’s summer home; some are home, some are not.”

Approximately 16 minutes after the initial call, Therese Dokman called the dispatcher to ensure that the officers did not leave Dokman alone and requested that he be taken to the hospital for a psychological evaluation. In' later conversations that night, Therese Dokman informed the officers that Dokman was abusive and had a drinking problem, but she indicated that Dokman did not sound intoxicated. The officers eventually disconnected Dokman’s telephone, thus preventing him from communicating with Therese Dokman. Although Dokman made no further threats of suicide and officers never saw him with a weapon, he continually refused to leave his house.

Throughout the evening and into the early morning hours, Dokman ignored the officers’ requests to talk or to come outside. While officers surrounded the house, Dokman watched television, turned lights on and off, and opened and closed curtains. The police reports indicate that at various times during the evening they were unsure of Dokman’s location in the house. At one point, Dokman yelled to the officers that he was fine and they should leave.

After a considerable amount of time without any contact with Dokman, the officers threw a “hostage phone” through the kitchen window. Hostage phones enable officers to hear inside the house without having someone pick up the receiver. After a short conversation with the officers at 1:54 a.m., Dokman left his house, walked to the garage, and then turned and ran back inside the house. This behavior raised the officers’ suspicions.

Nine hours after the commencement of negotiations, the officers evaluated the next action they should take to persuade Dokman to exit the house. They considered three options: (1) enter the house; (2) wait; or (3) use chemical irritants to force Dokman out. Concerned that Dok-man wanted to force a shoot-out, resulting in “suicide by cop,” the officers decided that entering the house was too dangerous. The option to wait was rejected because the officers were not sure if Dokman was alive. They chose to use pepper spray to force Dokman out of the house.

Dokman received general warnings that chemical munitions would be shot into the house if he did not come out. After waiting approximately 30 minutes, the officers fired 21 canisters into the house, resulting in significant destruction to the windows, walls, and a patio door. The officers telephoned Dokman and asked if he was hurt, and he responded that he was okay, but he may have glass in one eye. Dokman refused medical treatment from the ambulance parked outside his house and refused to leave the house.

After the chemicals were shot into the house, Dokman’s communication with the officers increased. By 5:00 a.m., almost three hours after the chemical munitions had entered the house, the Emergency Services Unit determined Dokman was no longer a threat and left the scene. An officer stayed outside Dokman’s home until later that day.'

Dokman brought an action against the officers for violations of his constitutional rights, assault, battery, false imprisonment, and infliction of emotional distress. The officers moved for summary judgment, arguing that their actions were protected by qualified and official immunity. The district court granted their motion for summary judgment. This appeal followed.

ISSUES

1. Did the district court err in granting the officers’ motion for summary judgment on the issue of qualified immunity?

2. Did the district court err in granting the officers’ motion for summary judgment on the issue of official immunity?

ANALYSIS

In an appeal from an order granting summary judgment, we must determine if there are genuine issues of material fact in dispute and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). No genuine issue of material fact exists “[Vjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.’ ” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. at 71. This court views the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993).

The district court determined that the officers were entitled to qualified and official immunity for their actions at the Dokman residence. Whether immunity applies is a legal question, which is reviewed de novo. Gleason v. Metro. Council Transit Operations, 582 N.W.2d 216, 219 (Minn.1998). The party asserting a defense of immunity has the burden of demonstrating facts showing that it is entitled to immunity. Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn.App.1998), review denied (Minn. July 16, 1998).

I.

A governmental official performing discretionary functions is entitled to qualified immunity if the official’s conduct does not violate clearly established constitutional or statutory rights that a reasonable person would have known. Adewale v. Whalen, 21 F.Supp.2d 1006, 1013 (D.Minn.1998). The doctrine is broad enough to protect ‘“all but the plainly incompetent or those who knowingly violate the law.’ ” Stone v. Badgerow, 511 N.W.2d 747, 751 (Minn.App.1994) (quoting Motley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)), review denied (Minn. Apr. 19, 1994). Because it is an affirmative defense, the official seeking immunity bears the initial burden to plead the defense, but once raised, the plaintiff must establish that the official’s action was “objectively legally unreasonable.” Id. (quotation omitted). A police officer is denied qualified immunity only where “it is obvious that no reasonably competent police officer would have concluded” that his actions were legal. Medley, 475 U.S. at 342, 106 S.Ct. at 1096.

Evaluating a claim of qualified immunity involves two inquiries: (1) “whether the plaintiff has alleged the violation of a clearly established constitutional right”; and (2) whether an officer could reasonably have believed his actions were lawful “in light of clearly established law and the information [he] possessed.” Baker v. Chaplin, 517 N.W.2d 911, 914 (Minn.1994) (citation omitted). Dokman has alleged violations of his Fourth, Fifth, and Fourteenth Amendment rights.

A. Fourth Amendment

Dokman asserts that the officers violated his Fourth Amendment right to be free from unlawful search and seizure. Minnesota uses the Mendenhall/Royer approach to determine whether a seizure has taken place. State v. Hanson, 504 N.W.2d 219, 220 & n. 1 (Minn.1993) (citing United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980); Fla. v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983)).

Under the Mendenhall/Royer approach, the reviewing court asks whether, looking at all the facts, a reasonable person in Dokman’s circumstances would see the police conduct as an attempt to capture, seize, or otherwise to significantly intrude on his freedom of movement. See Michigan v. Chesternut, 486 U.S. 567, 572-75, 108 S.Ct. 1975, 1978-80, 100 L.Ed.2d 565 (1988).

In Mendenhall, the Court elaborated on this approach by stating:

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (citation omitted). Here, in view of all the circumstances, a reasonable person in Dokman’s situation would have interpreted the situation as an infringement on his freedom to leave or a seizure.

Next, the court examines whether the officers could reasonably have believed their actions were lawful in light of clearly established law and the information they possessed. Chaplin, 517 N.W.2d at 914 (quotation omitted). The officers were acting under the belief that Dokman was a danger to himself.

A peace or health officer may take a person into custody and transport the person to a licensed physician or treatment facility if the officer has reason to believe, either through direct observation of the person’s behavior, or upon reliable information of the person’s recent behavior and knowledge of the person’s past behavior or psychiatric treatment, that the person is mentally ill * * * and in imminent danger of injuring self or others if not immediately restrained.

MinmStat. § 253B.05 subd. 2(a). The officers acted on information from Therese Dokman that Dokman (1) was suicidal; (2) had a shotgun; (3) had a drinking problem; and (4) was abusive. Officers considered this information credible and were justified in attempting to take Dokman into custody because he appeared to be a danger to himself. Thus, the court’s conclusion that the officers were entitled to qualified immunity is not erroneous.

Excessive Force

Dokman argues that the act of shooting 21 chemical munitions into his home constituted excessive force. The use of excessive force by officers constitutes a violation of the Fourth Amendment right to be free from unreasonable seizure and is actionable under 42 U.S.C. § 1983. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). The test for determining whether police officers have violated the Fourth Amendment by using excessive force is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstance confronting them, without regard to their underlying intent or motivation.” Id. at 397, 109 S.Ct. at 1872. In assessing reasonableness of the use of force, the conduct must be judged “from the perspective of a reasonable officer on the scene.” Id. at 396, 109 S.Ct. at 1872; Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-40, 97 L.Ed.2d 523 (1987).

Here, the officers were informed that Dokman was armed and suicidal, his behavior was unpredictable, and he had a history of abuse. The negotiating officers were forced to assess the situation moment by moment, and, because Dokman was giving unresponsive answers to the officers’ inquiries and would not leave his house to speak to them, they did not know the full extent of the threat.

Dokman claims that the officers used excessive amounts of pepper spray in an attempt to force him out of the house. But the officers submitted affidavits stating that the use of chemical munitions to force a person suspected of suicidal thoughts out of a house is not uncommon. After numerous attempts to negotiate with Dokman, it was not unreasonable for the officers to believe that the use of chemical munitions in a quantity sufficient to gain the desired objective was their best option at the time. Viewed from their perspective that they were dealing with a suicidal person, the officers’ actions were reasonable and therefore not excessive, thus supporting their claim of qualified immunity.

Deadly Force

Dokman argues that the officers used deadly force in shooting the chemical munitions into his home. Deadly force is defined as

force which the actor uses with the purpose of causing, or which the actor should reasonably know creates a substantial risk of causing, death or great bodily harm.

MinmStat. § 609.066, subd. 1 (2000).

While it is true that serious injury or death could result from shooting chemical munitions, that fact alone does not make the action one of deadly force. When an officer shoots a canister of pepper spray into a building, the officer has been trained to aim at the ceiling, rather than a person. There is no support in the record to conclude that these officers aimed directly at Dokman. The district court did not err in finding qualified immunity.

B. Fifth Amendment

Dokman argues that his home was taken for a public purpose without just compensation. The Takings Clause of the Fifth Amendment to the United States Constitution states “private property [shall not] be taken for public use, without just compensation.” U.S. Const, amend. X. This type of constitutional inhibition

was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960). A significant restriction on recovery under this provision is the requirement that the taking or damaging must be for a public use. AFSCME Councils 6, 14, 65 & 96 v. Sundquist, 338 N.W.2d 560, 575 (Minn.1983), appeal dismissed sub nom., Minneapolis Police Relief Ass’n v. Sundquist, 466 U.S. 933, 104 S.Ct. 1902, 80 L.Ed.2d 452 (1984). What constitutes “public use” under this provision is a judicial question that the court historically construes broadly. City of Duluth v. State, 390 N.W.2d 757, 763 (Minn.1986).

Respondents contend there was no taking for a public use because the actions of the police officers constituted a legitimate exercise of police power.

* * * What is a ‘public purpose’ that will justify the expenditure of public money is not capable of a precise definition, but the courts generally construe it to mean such an activity as will serve as a benefit to the community as a body and which, at the same time, is directly related to the functions of government.

Hous. & Redevelopment Auth. of City of St. Paul v. Greenman, 96 N.W.2d 673, 679, 255 Minn. 396, 403-04 (1959) (citation & quotation omitted). But, “simply labeling the actions of the police as an exercise of the police power cannot justify the disregard of the constitutional inhibitions.” Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 40 (Minn.1991) (quotation omitted).

Dokman relies on Wegner for the proposition that the officers are not insulated from compensating an innocent third party. Police officers in Wegner were chasing a suspected armed criminal who fled into a home. Wegner, 479 N.W.2d at 39. The residents evacuated the home, and the officers forced the suspect out with tear gas, resulting in significant damage to the home. Id. The Wegner court found that the police took action for a public purpose, to apprehend a criminal, and, as innocent third parties, the residents were entitled to damages. Id. at 41. Here, the officers thought that Dokman was a threat to himself and potentially to other officers on the scene; Dokman was not an innocent third party. Thus, while the officers served a public function, it was not for the benefit of the community.

Dokman has shown the existence of no outstanding issues of material fact, and respondents are entitled as a matter of law to qualified immunity. The district court did not err in granting summary judgment based on qualified immunity.

C. Fourteenth Amendment

Dokman argues that his substantive due process rights were violated when the officers staked out his house and bombarded him with chemical munitions without probable cause. The United States Supreme Court stated that if a claim is covered by a specific constitutional provision, that claim must be analyzed under those standards, not under substantive due process. County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 1714, 140 L.Ed.2d 1043 (1998) (citation omitted). Because we have found that a seizure occurred and Dok-man’s Fourth Amendment rights were not violated, we need not address the due process claim.

II.

Under Minnesota law, a public official is entitled to official immunity from state law claims when the official’s duties require the exercise of discretion or judgment. Johnson v. Morris, 453 N.W.2d 31, 41 (Minn.1990). Generally, police officers are discretionary officials. Id. at 42. Only when officials act outside the scope of their charged authority can they be deemed to have waived this immunity and be held personally liable for their negligence. See generally Janklow v. Minn. Bd. of Exam’rs, 552 N.W.2d 711, 715 (Minn.1996). An officer is not shielded from suit if he commits a willful or malicious wrong. Rico v. State, 472 N.W.2d 100, 106-07 (Minn.1991).

Official immunity is intended “to protect public officials from the fear of personal liability that might deter independent action.” Janklow, 552 N.W.2d at 715 (quoting Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn.1988)). It establishes that

a public official charged by law with duties which call for the exercise of his judgment or discretion is not personally liable to an individual for damages unless he is guilty of a willful or malicious wrong.

Elwood, 423 N.W.2d at 677 (citation omitted). As a result, government officials have broad discretion to conduct business and make decisions under the protection of official immunity. Janklow, 552 N.W.2d at 716. Official immunity protects all discretionary decisions made by a public figure, but does not protect the “ministerial duties” of a public official, that is, duties that are “absolute, certain or imperative.” Watson v. Metro. Transit Comm’n, 553 N.W.2d 406, 414 (Minn.1996) (quotation omitted).

Determination of whether official immunity is available in a given context requires a two-step inquiry: (1) whether the alleged acts are discretionary or ministerial; and (2) whether the alleged acts, even though of the type covered by official immunity, were malicious or willful and therefore stripped of the immunity’s protection. Davis v. Hennepin County, 559 N.W.2d 117, 122 (Minn.App.1997), review denied (Minn. May 20, 1997).

A discretionary act is one for which an official must exercise “judgment or discretion.” Johnson v. State, 553 N.W.2d 40, 46 (Minn.1996) (quoting Elwood, 423 N.W.2d at 677). A ministerial act involves merely the execution of a specific, absolute duty. Kari v. City of Maplewood, 582 N.W.2d 921, 923 (Minn.1998). Despite Dokman’s later testimony that he had no intention of actually killing himself, the officers had no way of knowing his real intentions and were only responding to the information they had. The circumstances were tense and uncertain, and the officers were operating with little information from Dokman. Although the sheriffs department has procedures for dealing with suicide threats, each situation is unique and requires officers to use their judgment and exercise discretion in deciding on a plan of action. Thus, this situation fits within the scope of actions protected by official immunity.

We next consider whether the officers’ conduct was malicious or willful. Davis, 559 N.W.2d at 122. Malice is defined as “the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.” Rico, 472 N.W.2d at 107 (citation omitted). The question of malice is an “objective inquiry into the legal reasonableness of an official’s actions.” State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 571 (Minn.1994).

There is no evidence in the record that the officers acted with malice in their conduct toward Dokman. There is no factual basis for Dokman’s claim that the officers shot the chemicals into his home because they were angry about having to be outside on a cold night. Additionally, there is no support for Dokman’s argument that the officers wanted to make him mad. The length of time the officers negotiated with Dokman and their cautious, graduated approach in dealing with him shows sensitivity and concern for his well being rather than an intent to harm him. There is no evidence to support malice on the part of the officers. We affirm the district court’s grant of summary judgment.

III.

Vicarious official immunity protects a governmental entity from liability based on the acts of an employee who is entitled to official immunity. Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn.1998). Because we hold that the officers are entitled to official immunity, Hennepin County is protected from liability.

DECISION

Because the officers had probable cause, they were authorized under Minn. Stat. § 253B.05 to seize Dokman. As such, respondents’ actions were protected by qualified immunity. Because the officers’ actions were discretionary, they were protected by official immunity. The district court did not err in granting summary judgment.

Affirmed.


source: Caselaw Access Project

author: LANSING, Judge. KALITOWSKI, Judge

license: Public Domain

text:
    Thomas SCHLIEMAN, Appellant, v. GANNETT MINNESOTA BROADCASTING, INC., n/k/a Multimedia Cablevision, Inc., d/b/a Rare TV, et al., Respondent.
    No. C0-01-935.
    Court of Appeals of Minnesota.
    Dec. 26, 2001.

      Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, for appellant.
    Thomas Tinkham and Amy Katz Roten-berg, Dorsey & Whitney L.L.P., Minneapolis, for respondent.
    Considered and decided by LANSING, Presiding Judge, KALITOWSKI, Judge, and HANSON, Judge.
   OPINION

LANSING, Judge.

In this defamation action against KARE TV, St. Cloud Police Officer Thomas Schlieman challenges the district court’s instructions on the elements of defamation. Schlieman alternatively contends that the three statements at issue are defamatory as a matter of law. By notice of review, KARE TV contends that the district court erred in holding that the three statements are capable of supporting a cause of action for defamation. We affirm in part, reverse in part, and remand.

FACTS

KARE TV aired an investigative report on a police-citizen shooting in St. Cloud. Three statements broadcast in that report are the nucleus of this defamation action. St. Cloud Police Officer Thomas Schlieman testified that he was dispatched to Kevin Hartwig’s St. Cloud home on a 911 call. As he approached Hartwig’s home, Schlie-man encountered Hartwig covered with blood, with a knife protruding from his chest. According to Schlieman, Hartwig removed the knife and, while making slashing motions and screaming loudly, charged at Schlieman; Schlieman backed up and fell onto the hood of a parked car; as Schlieman was lying on the car hood, Hartwig continued to charge at him. Schlieman fired his gun at Hartwig, fatally wounding him.

Michelle Simpson, Hartwig’s neighbor and the only eyewitness to the shooting, testified consistently with Schlieman’s account of the events. Simpson spoke with Dennis Stauffer, a reporter with KARE TV, shortly after the incident. According to Simpson, she told Stauffer that Hartwig had come out of the house screaming and with his arm raised in an attempt to stab Schlieman. Simpson gave a similar statement to police indicating that Hartwig was trying to stab Schlieman, that Hartwig was “screaming like he was in a rage,” and that Schlieman was acting in self-defense when he shot Hartwig. Jason Melby, also a neighbor, witnessed the events leading up to the shooting but not the shooting itself. Melby declined to give a statement to Stauffer. Melby’s testimony on the events he witnessed was consistent with Simpson’s and Schlieman’s testimony.

After speaking with Simpson, Stauffer appeared on the 6:00 p.m. KARE TV newscast. Stauffer and KARE TV news anchor, Pat Miles, made the following statements about the shooting of Hartwig:

[Miles] [W]hile police say it was self defense, KARE ll’s Dennis Stauffer is live in St. Cloud with conflicting information from neighbors.
[Stauffer] * * * A man police say has no history of arrest or mental illness reportedly provoked his own death. But there’s some disagreement over exactly what happened. * * *
⅝ ⅜ ⅜ ⅜
[Stauffer] Today friends and neighbors left flowers where Hartwig was killed and declined to speak on camera, but two people say they witnessed the shooting and that Hartwig was not being aggressive.

Stauffer testified that the only person who had given him information about the shooting was Simpson and that the “two people” that he was referring to in the broadcast were Simpson and Melby. Stauffer and John Drilling, a cameraman who was with Stauffer when he talked to Simpson, both testified that Simpson told Stauffer the shooting didn’t have to happen and that Hartwig wasn’t being aggressive.

Six months after the broadcast, Schlie-man brought this action against Stauffer and KARE TV alleging counts of defamation and defamation by implication. KARE TV and Stauffer moved for summary judgment. The district court granted summary judgment on the defamation-by-implication claims, reasoning that this cause of action was not available to Schlie-man because he is a public official. Consequently, the court excluded from trial the statements that Schlieman alleged weré defamatory because of juxtaposition and omission. The district court allowed the defamation claims based on the two statements by Stauffer and the statement by Miles to proceed to trial.

Following the testimonial portion of the jury trial, the district court instructed the jury on the elements of a defamation action brought by a public official. The district court provided the jury with a five-question special-verdict form submitted by Schlieman’s attorney. The questions, in sequence, asked whether any of the three statements were defamatory; whether the statements were “of and concerning” Thomas Schlieman; whether the statements were false; whether the statements were made with actual malice, and the amount of damages, if any, sustained by Schlieman. The special-verdict form instructed the jury that, unless it answered the first question “yes,” it should not answer the remaining questions. The jury answered the-first question “no” and did not answer the remaining questions.

Schlieman moved for a new trial, arguing that the district court erred by including in the elements of defamation an instruction on defamation by implication, instructing the jury that the statement must “actually refer[ ] to the plaintiff,” and submitting the question of the defamatory nature of the statements to the jury. The district court denied Schlie-man’s motion for a new trial. Schlieman appeals the denial of his new-trial motion and KARE TV, by notice of review, challenges the partial denial of its motion for summary judgment.

ISSUES

I. Did the jury instruction misstate the elements of a defamation action brought by a public official?
II. Were the three statements defamatory as a matter of law?
III. Was KARE TV entitled to summary judgment because the three statements were incapable of conveying a defamatory meaning?

ANALYSIS

I

We review jury instructions to determine whether, taken as a whole, they misstate or confuse a principle of law applicable to the case. Lindstrom v. Yellow Taxi Co., 298 Minn. 224, 229, 214 N.W.2d 672, 676 (1974). In general a jury charge should affirmatively set forth the law that applies and avoid the express exclusion of a nonapplicable principle of law. Nubbe v. Hardy Cont’l Hotel Sys., 225 Minn. 496, 502-03, 31 N.W.2d 332, 336 (1948). The district court has latitude in the structure and language of the jury charge and will not be reversed simply because one of the parties prefers other language. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn.1986); Seivert v. Bass, 288 Minn. 457, 467, 181 N.W.2d 888, 894 (1970). But if an issue is submitted to the jury on an erroneous instruction and it does not appear as a matter of law that the jury’s determination was correct regardless of the instruction, then the court should grant the objecting party a new trial. Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 660 (Minn.1987).

Defamation of a Public Official

To prevail in a defamation action, a public official must prove that the designated statements were false, the statements were published, the statements conveyed a defamatory meaning, the statements were “of and concerning” the official, and the publisher acted with reckless disregard for the truth or had a high degree of knowledge of the statements’ probable falsity. See Toney v. WCCO Television, 85 F.3d 383, 386 (8th Cir.1996) (listing elements of defamation under Minnesota law); Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn.1990) (discussing additional element of actual malice applicable to public officials).

Schlieman’s challenges to the jury instructions are directed at the “defamatory-meaning” element and the “of-and-concerning” element. These two elements together with the “false” and “published” elements have developed from the common law of defamation. In cases involving the defamation of public officials or public figures or communication of public concern, the fifth element incorporates constitutional protections. The United States Supreme Court constitutionalized common law defamation in New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), when it held that a public official must prove “that the [defamatory] statement was made with ‘actual malice’ — that is, with knowledge that it is false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. at 726. This constitutional actual-malice requirement grows out of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 270, 84 S.Ct. at 721 (citation omitted).

Motivated by similar First Amendment concerns, the Minnesota Supreme Court has extended the protection for matters of public concern by holding that an allegedly “false implication” arising out of true statements is generally nonactionable in defamation by a public-official plaintiff against a news medium. Diesen, 455 N.W.2d at 451-52. Applying Minnesota defamation law to a county attorney’s claim against a Duluth-area newspaper, Diesen held that a public-official plaintiff could not base a defamation cause of action on true statements that, because of the particular juxtaposition of the statements or the omission of particular facts, became false. Id. at 451-52.

Diesen is a plurality opinion in which three supreme court justices concluded that when the challenged statements are true, a public official may not prove falsity by implication. Id. at 451-52. Two justices concurred in the reversal but based their decision on different grounds. Two justices dissented. The configuration of the Diesen court injected some doubt into whether the plurality opinion commanded a majority in rejecting a public official’s right to bring a defamation-by-implication action. See Conroy v. Kilzer, 789 F.Supp. 1457, 1460-61 (D.Minn.1992) (“Given the fragmentation of the Diesen court, it is difficult to state with certainty Minnesota’s rule regarding libel by implication.” (citation omitted)). Despite the splintered nature of the opinion, Diesen has been interpreted as foreclosing a defamation-by-implication cause of action for public officials. Toney, 85 F.3d at 390 (assuming the plurality opinion represented the views of a majority of the court); see C. Thomas Dienes & Lee Levine, Implied Libel, Defamatory Meaning, and State of Mind: The Promise of New York Times Co. v. Sullivan, 78 Iowa L.Rev. 237, 306 (1993) (categorizing Diesen as a “wholesale judicial rejection of the implied libel cause of action”).

The Diesen rejection of defamation by implication is consistent with First Amendment principles that guarantee a free press. It reaffirms the body of Minnesota case law that provides that “true statements, however disparaging, are not actionable.” Stuempges v. Parke, Davis & Co. 297 N.W.2d 252, 255 (Minn.1980). Dies-en also avoids the difficulty of defining what is being implied, with the attendant problem that “the implication varies with the implicator.” Diesen, 455 N.W.2d at 455 n. 1 (Simonett, J., concurring). And significantly, Diesen spares Minnesota courts the challenging task of adapting the constitutional-malice standard to statements that are true on their face and false only by implication.

But Diesen is a narrowly focused holding that applies to only one type of public-official defamation action — an action that attempts to establish defamation through false implication from true statements. Diesen, 455 N.W.2d at 452. Contrary to KARE TV’s argument, Diesen does not change the basic components of public-official defamation law in cases that do not involve defamation by implication. See Toney, 85 F.3d at 387 (Diesen’s rejection of defamation by implication does not discard Minnesota’s well-settled law that false statements nondefamatory on their face but capable of an “implied” defamatory meaning are actionable defamation); Conroy, 789 F.Supp. at 1461-62 (when a claim is based on false statements, rather than true statements that allegedly give rise to false implications, there is no reason to apply the tort of libel by implication; the plaintiff may sue under a straight libel theory).

Thus, Diesen does not modify the general principle that courts must interpret the defamatory-meaning element of a defamation action in light of the context surrounding the alleged defamatory statements. See Utecht v. Shopko Dep’t Store, 324 N.W.2d 652, 653-54 (Minn.1982) (noting that a publication may convey a defamatory innuendo); Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 443 (Minn.App.1986) (“The defamatory character of any particular statement must be construed in the context of the article as a whole.” (citation omitted)). Context is critical to meaning because a false statement that is defamatory on its face may not be defamatory when read in context, and a statement that is not defamatory on its face may, in fact, be defamatory when read in context. See Hunter v. Hartman, 545 N.W.2d 699, 706 (Minn.App.1996) (“The context of a remark * * * may make an otherwise defamatory comment protected hyperbole.” (citations omitted)), review denied (Minn. June 19, 1996); Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1098 (4th Cir.1993) (“A magnifying glass is no aid to appreciating a Seurat, and the pattern of a complex structure is often discernable only at some distance.”).

Defamatory Meaning

It is on these principles that we evaluate the correctness of the district court’s instruction on the defamatory-meaning element. Over objection, the court instructed the jury:

In considering whether a statement is defamatory as to the plaintiff, you must not consider whether the statement is an implication based upon the juxtaposition of those statements or the omission of other facts. Here you may consider only whether the defendants published a false and defamatory statement which actually refers to the plaintiff.

Initially, the instruction seems merely confusing in its attempt to exclude defamation by implication. But in three ways the instruction results in a prejudicial misstatement of the substantive law.

First, the instruction creates confusion because the action Schlieman was permitted to try to the jury was not a defamation-by-implication action based on statements that are true on their face and false by implication, but a straight defamation action in which he sought to prove that the statements were false and conveyed a defamatory meaning. The statements that Schlieman alleged were false by implication were dismissed from this action by the summary judgment order; Schlieman’s triable cause of action was only for defamation. The Diesen exclusion is not relevant and injects considerable confusion into the question of what “juxtaposition” of statements or “omission of other facts” might mean as applied to the alleged defamatory statements.

Second, the instruction is a misstatement of the essential holding of Dies-en. Diesen held that a jury was not permitted to rely on the juxtaposition or the omission of facts to find that the statements at issue were false; it did not announce a new definition of defamatory meaning that is contingent on juxtaposition or omitted facts. Applying the Diesen constrictions on juxtaposition and omitted facts to the defamatory-meaning element instead of the falsity element distorts Diesen and results in a misstatement of the law. While it is true that Schlieman’s attorney expressed an opinion that the language on juxtaposition and omission was less troublesome in the defamatory-meaning element than in the of-and-concerning element, he did not waive his continuing objection to including the juxtaposition and omission language in any part of the jury instructions.

Third, and most significantly, restricting the jury’s consideration as part of the defamatory-meaning element rather than the falsity element resulted in an instruction that told the jury they could not consider all contextual evidence in determining whether any of the statements had a defamatory meaning. In determining whether a communication is defamatory, words must be construed in context. See Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476, 492 (Minn.1985) (citing Restatement (Second) of Torts § 563 comment d (1976)). The instruction’s restriction on implication through juxtaposition or omitted facts communicated that they could not take into account the statements preceding and following the alleged defamatory statement — the context of the statement.

The instruction the jury received is contrary to the “defamatory communication” instruction suggested by the Minnesota Jury Instruction Guide. See 4 Minnesota Practice, CIVJIG 50.10 (1999). Civil Jury Instruction 50.10 recognizes that context is to be taken into account when proving defamatory meaning. It suggests that when defamatory meaning is not apparent on its face, the jury should be instructed that it can take into account whether the omission of certain facts created a defamatory meaning, whether the linkage of statements created a defamatory meaning, and whether the statement is an opinion that is based on defamatory facts. The jury instruction given in this case expressly precluded the jury from considering these factors.

The restriction was emphasized by the court’s specific and differing instruction that with respect to the falsity element and the of-and-concerning element, the jury could consider contextual evidence. Finally, the jury instruction permitted KARE TV’s counsel to argue effectively that the jury could not consider context when determining whether the statements had a defamatory meaning.

KARE TV argues that the instruction was necessary as a cautionary instruction because Schlieman had interjected the “implication” concept into the trial and the jury needed to be advised that this cause of action was not available to Schlieman as a public official. The record does not support that argument. Implication was first mentioned by KARE TV’s counsel — during the opening statement — and the recurring references to implication are primarily by KARE TV, not Schlieman.

The special-verdict form compounded the confusion because it is oddly sequenced. We recognize that the verdict follows the form recommended in CIVSVF 50.93, but it is confusing to ask first whether the statements were “defamatory.” See 4 Minnesota Practice, CIVSVP 50.93 (1999). Asking whether the statements were defamatory encompasses the entire cause of action rather than only the defamatory-meaning element and appears to subsume the questions on the remaining elements. And by making the answers conditional rather than independent, the negative answer on the first question forces a new trial when a negative answer on one of the other dispositive questions might have resolved the claims.

The jury instruction on defamatory meaning erroneously injected a standard that did not apply to the cause of action, misstated the standard by applying it to the wrong element, and prevented the jury from applying the correct standard. Thus, the jury instruction was an inaccurate statement of the law that prejudicially restricted the jury’s determination of whether the statements conveyed a defamatory meaning, and we reverse and remand to the district court for a new trial. Because we remand for a new trial we do not consider Schlieman’s claim that the evidence is insufficient to support the verdict.

Of and Concerning

Schlieman’s counsel also objected to the jury instruction on “of and concerning” that limited consideration to statements that actually refer to the plaintiff:

Here you may consider only whether the defendants published a false and defamatory statement which actually refers to the plaintiff.

Schlieman argues that by using the phrase “actually refers,” the instruction erroneously led the jury to believe that the broadcast must literally identify Schlieman by name to satisfy the “of-and-concerning” element.

Jury instructions must be viewed as a whole to determine whether they fairly and adequately explain the law of the case. Moosbrugger v. McGraw-Edison Co., 284 Minn. 143, 158, 170 N.W.2d 72, 81 (1969). After the district court gave the instruction that the defamatory statement must “actually refer[ ]” to the plaintiff, the court further instructed:

A statement is “of and concerning” the plaintiff if, when read in the context of the entire publication, it refers to the plaintiff.

This instruction adequately reflects governing law on the “of and concerning” element of the defamation cause of action. Brill v. Minnesota Mines, 200 Minn. 454, 458, 274 N.W. 631, 633 (1937) (“Defamatory words, to be actionable, must refer to some ascertained or ascertainable person and that person must be the plaintiffs.”); see Dan B. Dobbs, The Law of Torts, § 405 at 1134-35 (2000) (“A defamatory publication is actionable only by the person or persons to whom recipients reasonably or correctly believe it refers.”) (citations omitted). The court did not err in giving this instruction.

II

Schlieman alternatively argues that the district court erred in submitting the defamatory-meaning issue to the jury because the statements were false statements about Sehlieman’s business, trade, or professional conduct and thus were defamatory per se. Schlieman’s argument correctly apprehends that defamatory statements about a person’s business, trade, or professional conduct are defamatory per se. See Becker, 401 N.W.2d at 661 (citing Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn.1977)). But it misapprehends the effect of this classification. “Defamatory per se” means that damages are presumed and thus recoverable without proof of actual harm to reputation. Becker, 401 N.W.2d at 661.

Because “defamatory per se” defines a rule of damages, not of defamatory meaning, the jury retains the ultimate responsibility for determining whether statements that relate to a person’s business, trade, or professional conduct are, in fact, defamatory. See Jadwin, 390 N.W.2d at 443 (noting that the court detérmines whether words are reasonably capable of carrying a defamatory meaning but the jury decides whether the statements do in fact have a defamatory meaning). The district court correctly rejected this argument.

Ill

By notice of review, KARE TV argues that the district court erred in partially denying KARE TV’s motion for summary judgment because the statements at issue are incapable of conveying a defamatory meaning. Minnesota defamation law divides statements into three categories: those that are defamatory on their face, those that could not reasonably convey a defamatory meaning, and those that are reasonably susceptible to a defamatory meaning as well as an innocent one. Church of Scientology v. Minnesota State Medical Ass’n Found., 264 N.W.2d 152, 155 (Minn.1978).

The district court makes an initial determination of whether the statements are reasonably capable of carrying a defamatory meaning. Utecht, 324 N.W.2d at 653. Because this determination is made as a matter of law, it is subject to de novo review. Frost-Benco Elec. Ass’n v. Minnesota Pub. Util. Comm’n, 358 N.W.2d 639, 642 (Minn.1984). If the statements are capable of carrying a defamatory meaning, then the jury must determine whether the statements were, in fact, defamatory. Utecht, 324 N.W.2d at 654.

A defamatory statement is one that harms the plaintiffs reputation and lowers him in the estimation of the community. Jadwin, 390 N.W.2d at 443. Allegations that a public official is lacking in integrity are actionable. Hammersten v. Reiling, 262 Minn. 200, 206-07, 115 N.W.2d 259, 264 (Minn.1962). Publishers are not permitted to disseminate “false and malicious statements charging a public official with crimes or misconduct in office.” Id. at 207, 115 N.W.2d at 264 (citations omitted). Minnesota has long recognized that “words charging misconduct” in duty, “want of official fidelity,” or “want of * * * integrity” in official capacity give rise to defamation. Tawney v. Simonson, Whitcomb & Hurley Co., 109 Minn. 341, 348, 124 N.W. 229, 232 (1909) (citations omitted). Consequently a false statement that conveys the allegation that a police officer unjustifiably shot a citizen may, in fact, be defamatory.

KARE TV argues that the ambiguity of the statements makes them incapable of carrying a defamatory meaning. In support of its proposition, KARE TV cites Campbell v. Citizens for an Honest Gov’t, Inc., 255 F.3d 560 (8th Cir.2001) and Price v. Viking Penguin, Inc., 881 F.2d 1426 (8th Cir.1989). We read Campbell and Price as primarily addressing the issue of falsity rather than the issue of defamatory meaning. Campbell, 255 F.3d at 567-69; Price, 881 F.2d at 1443-45. But to some degree the issues are related. Only statements that present or imply the existence of fact that can be proven true or false are actionable under state defamation law. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20, 110 S.Ct. 2695, 2705-06, 111 L.Ed.2d 1 (1990). Thus, if it is plain that the speaker is expressing a “subjective view, an interpretation, a theory, conjecture, or surmise,” rather than claiming to be in possession of “objectively verifiable facts,” the statement is not actionable. Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993) (citations omitted).

In addressing defamatory meaning, “[t]he dispositive question * * * becomes whether a reasonable factfinder could conclude that the statements * * * imply an assertion” that is defamatory. Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707. If the statements are not reasonably capable of conveying a defamatory meaning, summary judgment is appropriate.

The district court made a threshold determination that three alleged statements could reasonably be read to carry a defamatory meaning. The first two statements refer to conflicting information and disagreement:

[W]hile police say it was self-defense, RARE ll’s Dennis Stauffer is live in St. Cloud with conflicting information from neighbors.
* * * A man police say has no history of arrest or mental illness reportedly provoked his own death. But there’s some disagreement over exactly what happened. * * *

These statements are part of the full communication that may be considered in determining the defamation claim but do not independently or in context give rise to an assertion that is defamatory. See Restatement (Second) of Torts § 563 cmt. d (1977) (the context of a defamatory imputation includes all parts of the communication ordinarily heard or read with it).

The first statement is factually specific in saying that “police say it was self defense” and there is “conflicting information from neighbors.” The first part of this statement is true; the second part uses the term “conflicting,” which is a subjective evaluation not easily susceptible to being proven true or false. It is also unclear whether the neighbors’ information conflicts with other neighbors or with the police. And, significantly, the statement does not reasonably convey a defamatory meaning about Schlieman.

The first sentence of the second statement is an accurate statement; the second sentence indicates only that there is disagreement over what happened. Although the two primary witnesses do not specifically disagree, the statement is not confined to witnesses. A reasonable factfin-der could not conclude that the statement implies an assertion that is defamatory.

The final statement, however, is specific and capable of conveying a defamatory meaning:

Today friends and neighbors left flowers where Hartwig was killed and declined to speak on camera, but two people say they witnessed the shooting and that Hartwig was not being aggressive.

A jury could reasonably conclude that in context the statement defames Schlieman because it conveys the meaning that the shooting was not justified. Whether the two people, identified as Simpson and Mel-by, made these statements is susceptible of proof. The court did not err when it denied KARE TV’s motion for summary judgment on this statement.

The dissent suggests, as an alternative basis for resolving these issues, that we find that Schlieman has not presented sufficient proof of actual malice. In other words, Schlieman has not shown that the statement was made with knowledge that it was false or with reckless disregard of truth or falsity. See Diesen, 455 N.W.2d at 452-53 (citing Herbert v. Lando, 441 U.S. 153, 156-57, 99 S.Ct. 1635, 1638-39, 60 L.Ed.2d 115 (1979)). The dissent correctly states that KARE TV did not make a motion to dismiss on this ground in the district court; neither was this issued argued on appeal. See Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (reviewing court must generally consider only those issues presented to and decided by district court). The testimony of Simpson and Melby, if believed, is strong affirmative evidence on knowledge of falsity or reckless disregard for whether the statement was false or not. Consequently, the record would not support a dismissal for failure to present evidence on this issue.

DECISION

The district court’s instruction restricted the jury’s consideration of context in determining defamatory meaning. Because the instruction is a prejudicial misstatement of the law, we reverse and remand for a new trial. The district court correctly instructed the jury on the of-and-concerning element of a defamation cause of action and properly submitted the defamatory-meaning issue for a jury determination. Although two of the statements could not, as a matter of law, convey a defamatory meaning, we affirm the district court’s denial of KARE TV’s motion for summary judgment on the third statement made in KARE TV’s newscast. We therefore remand this case to the district court for a new trial on that statement.

Affirmed in part, reversed in part, and remanded.

KALITOWSKI, Judge

(concurring in part, dissenting in part)

Because both the law and the evidence presented to the jury support the jury’s determination that all three of the statements at issue were not defamatory, I respectfully dissent from that part of the majority opinion that concludes appellant is entitled to a new trial.

I.

I concur with the conclusion that the first two alleged defamatory statements are not reasonably capable of conveying a defamatory meaning. But I also conclude that in the context of the entire broadcast, as a matter of law, the third statement is also not capable of defamatory meaning. See Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 443 (Minn.App.1986) (“The defamatory character of any particular statement must be construed in the context of the article as a whole.” (citation omitted)).

Importantly, the majority of the broadcast at issue reported the official police version that the shooting was justified self-defense. The three alleged defamatory statements constituted a small part of the broadcast and at most permissibly raised questions concerning police accounts of a fatal shooting. See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093-94 (4th Cir.1993) (public officials must tolerate scrutiny of their activities). Moreover, the third alleged defamatory sentence was preceded by a police captain explaining why the officer had to shoot, and was immediately followed by (1) the reporter stating, “Police say that’s not what witnesses told them”; (2) a quote by the Chief of Police that “[tjhere was no discrepancy in those [witnesses’] accounts last night”; and (3) a statement by the reporter concluding the broadcast by stating that “Chief O’Keefe says, based on what he knows at this point, he is comfortable with Officer Schlieman’s actions.” Because this case involves a media defendant inquiring into the conduct of a public official, the First Amendment mandates that the press be given “breathing space” essential to its exercise of freedoms of speech and press. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). Thus, I conclude that in the context of the entire broadcast respondents’ statements are not capable of defamatory meaning.

In addition, because this case involves a public official and a media defendant, appellant was required to establish actual malice to prevail on his defamation claim. Although this issue was not presented to the district court, whether evidence in the record “is sufficient to support a finding of actual malice is a question of law [based] on the unique character of the interest protected by the actual malice standard.” Diesen v. Hessburg, 455 N.W.2d 446, 453-54 (Minn.1990) (quotation omitted).

Here, the record indicates that: (1) the majority of the broadcast at issue presented appellant’s version of the events; (2) the reporter testified at trial that an eyewitness told him “specifically that Kevin wasn’t being aggressive”; (3) a second employee of respondent testified at trial that the same eyewitness said “the victim was just standing there in a non-aggressive manner when the officer shot him”; and (4) the reporter testified that he had not intended to accuse appellant of any wrongdoing and respondent’s executive producer testified that respondent knew how to make such an accusation if that had been its intention. On this record, I conclude that as a matter of law no jury could find that appellant has met his burden of proving actual malice. Since appellant has had his day in court, in the interest of judicial economy, he should not be granted another trial.

II.

In addition to affirming the district court’s denial of appellant’s motion for a new trial as a matter of law, I would also affirm the district court because: (1) the instruction regarding defamation by implication was not reversible error; and (2) there was substantial evidence to support the jury’s verdict that the statements at issue were not defamatory.

Regarding the allegedly erroneous jury instruction, it is important to note first that there was no evidence that the jury was confused or improperly influenced by the instruction on defamation by implication. Moreover, although appellant argued that the instruction was unnecessary and should not be given, appellant requested that if the instruction were given: (1) it should be based on the language of CIVJIG 50-10; and (2) the instruction should be given immediately after the court gave the jury the definition of defamatory communication. Thus, appellant specifically asked the district court to take the actions that the majority concludes constituted reversible error. See State v. Adams, 251 Minn. 521, 548, 89 N.W.2d 661, 679 (1957) (stating a party cannot complain of errors that the party sought or helped create) (On Rehearing).

I would also affirm the district court’s denial of appellant’s motion for a new trial because there is substantial evidence to support the jury’s verdict. The jury was presented with the broadcast and a transcript of the broadcast. Thus, as discussed above, the jury could observe that the majority of the broadcast reported the police version of events and only a few lines reported that there was conflicting information as to whether the victim was aggressive. The jury also heard the testimony of respondent’s employees regarding both their efforts to reconcile what they considered to be conflicting information and their intent in airing the broadcast. Finally, the jury was properly instructed concerning the definition of a defamatory communication and was therefore able to assess the minimal evidence appellant presented establishing the necessary element that the communication must have either harmed his reputation in the community, injured his character, or subjected him to ridicule, contempt, or distrust.

A jury verdict will only be disturbed if it is manifestly and palpably contrary to the evidence. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256 (Minn.1980). Here, because the evidence at trial overwhelmingly supports the jury’s verdict, I would affirm the district court’s denial of appellant’s motion for a new trial.

      . The more appropriate sequence for a special-verdict form in a public-official case might be (1) was the statement of and concerning plaintiff, (2) was the statement false, (3) did the statement convey a defamatory meaning as to the plaintiff, (4) was the statement published?


author: TOUSSAINT, Chief Judge.

text:
    STATE of Minnesota, Respondent, v. Theodore Roy LINGWALL, Appellant.
    No. C2-01-1505.
    Court of Appeals of Minnesota.
    Dec. 26, 2001.

      Mike Hatch, Attorney General, St. Paul; and Matthew Kent Brokl, Plymouth Prosecuting Attorney, Eagan, for respondent.
    Phillip S. Resnick, Phillip S. Resnick & Associates, Minneapolis, for appellant.
    Considered and decided by TOUSSAINT, Chief Judge, ANDERSON,Judge, and MULALLY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

TOUSSAINT, Chief Judge.

This appeal is from a conviction of and sentence for direct criminal contempt. Appellant Theodore Lingwall was sentenced to three consecutive six-month sentences. We affirm as modified.

FACTS

Appellant Theodore Lingwall was charged in Hennepin County with driving after cancellation and failure to provide proof of insurance. Lingwall was released on bail pending trial. One of the conditions of his release was that he not consume alcohol.

Lingwall appeared before the district court on June 8, 2001, on a charge that he had violated his conditions of release by testing positive for the use of alcohol. Lingwall’s public defender obtained a brief continuance to explore the facts of the alleged violation. When the case was recalled, the public defender asked to have the case set for trial. The court ordered bail set at $12,000, to which the public defender objected. There was then some discussion as to whether the original bail had been forfeited or reinstated. After the court clerk offered a clarification, the court stated:

Okay. So the $5,500 is forfeited, and the $6,000 is substituted in its place. Trial date is ordered.

Lingwall then asked his public defender whether he got the bail bond reinstated. When the public defender replied that the bond was reinstated, Lingwall said, “This is f — king stupid.” The following exchanges ensued:

THE COURT: That’s contempt, sir, and that is six months.
THE DEFENDANT: I ain’t did anything.
THE COURT: You are done.
THE DEFENDANT: My f — king ass.
THE COURT: That’s another six months.
THE DEFENDANT: Suck my d — k, too.
THE COURT: That’s another six months. He’s up to a year and a half. Take him to the workhouse.

Lingwall appeals, challenging both the conviction and the sentence.

ISSUES

1. Did appellant’s conduct constitute direct criminal contempt?

2. Did the district court err in imposing sentences greater than 90 days?

3. Did the court err in imposing multiple sentences?

ANALYSIS

I.

Lingwall argues that the profanities he uttered in the courtroom did not constitute contempt because the hearing had already been concluded when they were spoken. When reviewing a challenge to the sufficiency of the evidence, we conduct a painstaking analysis of the record viewed in the light most favorable to the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The construction of a statute is a question of law subject to de novo review. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). The contempt statute defines criminal contempt, in part, as

disorderly, contemptuous, or insolent behavior, committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority!!]

MinmStat. § 588.20, subd. 2(1) (2000).

This statute imposes several limitations on the court’s power to find a party in direct criminal contempt. The contumacious conduct, first, must occur “during the sitting of the court.” Id. This language may reflect the historical limitation on the court’s summary contempt power to conduct that occurs in “open court.” See Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925) (explaining that conduct occurring in “open court” justifies presumption that the court saw it and supports dispensing with protections of due process because the authority of the court is at stake in immediate sanctioning of the conduct). On the other hand, some courts have construed the phrase “during the sitting of the court” broadly, to refer to any court “session,” meaning a term of the court, and not to the continuation of a particular trial or hearing. People v. Warriner, 113 Mich.App. 549, 317 N.W.2d 681, 683-84 (1982). There is no doubt that Lingwall’s profane outburst occurred “during the sitting of the court.”

The second limitation, that the conduct occur in the court’s “immediate view and presence,” merely duplicates the definition of “direct” contempt. See Minn.Stat. § 588.01, subd. 2 (2000) (defining “direct contempt” as one “occurring in the immediate view and presence of the court”). Again, there is no doubt that Lingwall’s conduct occurred in the “immediate view and presence” of the court.

The third limitation restricts criminal contempt to conduct “directly tending to interrupt [the court’s] proceedings, or to impair the respect due to its authority.” Minn.Stat. § 588.20, subd. 2(1). Lingwall argues that this language limits the contumacious conduct to acts that, because they occur during a trial or hearing, would tend to interrupt the court’s proceedings. This construction, however, would read out of the statute the prohibition against conduct that tends “to impair the respect due to [the court’s] authority.” Id.; see State v. Wagner, 555 N.W.2d 752, 754 (Minn.App.1996) (holding statute should be construed so as to give effect to all of its provisions). Moreover, the record indicates that Ling-wall’s case was only one matter scheduled on the court’s calendar, and his conduct tended to interrupt that calendar as a whole. Thus, we conclude that Lingwall’s conduct did constitute direct criminal contempt in violation of Minn.Stat. § 688.20, subd. 2(1).

II.

Lingwall argues that the district court exceeded the permissible sentence when it sentenced him to jail terms greater than 90 days, the maximum sentence for a misdemeanor.

The supreme court has held that although the misdemeanor contempt statute does not directly limit the court’s inherent power to sanction direct contempts summarily, the misdemeanor limit of 90 days should ordinarily be the maximum sentence imposed for such conduct. State v. Tatum, 556 N.W.2d 541, 547 (Minn.1996). The court held that although the courts have inherent authority to sentence for contempt, independent of any statutory authorization, they should generally defer, as a matter of comity, to the statutory limits on such sentences. Id. Because the district court in Tatum cited the contempt statute and gave no indication of its intent to rely on inherent judicial authority, the supreme court remanded the matter to allow the district court to justify the six-month sentence it had imposed. Id. at 547-48.

We conclude there are aggravating factors in this case justifying a contempt sentence greater than the ordinary 90-day maximum. Lingwall’s stream of profanities constituted a highly aggravated verbal attack on the court’s authority. They were extremely disrespectful, totally unprovoked, and continued even in the face of the court’s findings of continued contempt. We conclude that the district court did not err in exceeding the 90-day maximum misdemeanor sentence.

III.

Lingwall also argues that because his contumacious conduct occurred in the course of a single exchange with the court, it was a single behavioral incident and the district court erred in sentencing him separately on all three findings of contempt. We agree.

The double jeopardy statute, Minn.Stat. § 609.035 (2000), generally prevents imposition of more than one sentence for a single behavioral incident, except when there are multiple victims. See generally State v. Bookwalter, 541 N.W.2d 290 (Minn.1995). In determining whether intentional crimes are part of a single behavioral incident, the court focuses on the factors of time and place and whether the offenses were motivated by a single criminal objective. State v. Brown, 597 N.W.2d 299, 305 (Minn.App.1999), review denied (Minn. Sept. 14, 1999). The statute arguably does not limit the court’s inherent authority to punish direct criminal contempt. But the supreme court in Tatum recognized that “the principle of comity recommends deference to legislative judgments.” Tatum, 556 N.W.2d at 547. We conclude that, as a matter of comity, Minn. Stat. § 609.035 should limit the court’s sentencing power in this case.

Lingwall’s three contumacious statements occurred in the same courtroom, at very nearly the same time. Except for Lingwall’s first statement, which was apparently directed at his public defender, they all appeared to have the same objective of flaunting Lingwall’s disrespect for the court. We acknowledge the state’s argument that the court’s pronouncements of sentence separated the three contumacious statements. But we conclude there was not a sufficient break in Lingwall’s conduct to make it separate behavioral incidents. See generally State v. Jeter, 558 N.W.2d 505, 507 (Minn.App.1997) (finding that obstruction of legal process and giving false information to police were same behavioral incident where there was no break in time between the acts). Accordingly, we modify Lingwall’s sentence by vacating two of the three six-month sentences.

DECISION

The district court properly found appellant in direct criminal contempt and did not exceed its authority in sentencing him to jail for six months. However, appellant’s three profanities constituted a single behavioral incident and, as a matter of comity, sentence should only have been imposed for one of the offenses.

Affirmed as modified.