Qualified Immunity Explained

The term “qualified immunity” has been discussed at great length the past year throughout the State of Minnesota and United States. Qualified immunity is a legal principle that provides government officials performing discretionary functions immunity from civil suits unless the plaintiff can show the government official violated clearly established statutory or constitutional rights of which a reasonable person would have known. Before diving into the current state of this legal doctrine, it is important to understand the terms that make it up. 

A government official is any officer, employee or other individual acting in an official capacity for a governmental authority or agency. Put plainly- if you work for an agency or organization that is part of the state or federal government, then you are a government official for purposes of qualified immunity. This includes a wide variety of individuals, such as: senators, heads of governmental departments, police officers, and other individuals who work in similar areas.  

Plaintiff is the individual bringing the civil suit against the government official. They are the person who believes they were wronged and is asking a court of law to remedy the situation by holding the government official (defendant) responsible. A civil suit or civil lawsuit is a court-based process in which one individual can seek to hold another liable for some type of harm or wrongful act. This usually is done by requesting the court to award plaintiff with some type of monetary award for the defendants’ alleged violations against them. “Violated clearly established statutory or constitutional rights of which a reasonable person would have known” is not as simple to explain, however. 

If a government official named in a civil lawsuit believes they are protected by qualified immunity for whatever the plaintiff is alleging they did wrong, then the official must assert the defense of qualified immunity from the beginning of the lawsuit. Qualified immunity is an affirmative defense. This means if found to be credible, then it will negate any civil liability of the defendant even if they did what the plaintiff is alleging. When a government official asserts this defense the court hearing the matter must determine two things. (1) The court must first determine whether plaintiff has alleged violation of a clearly established constitutional right. (2) If the right allegedly violated was clearly established at time of official’s actions, then the court must determine whether reasonable official could have believed his actions to be lawful, in light of clearly established law and information official possessed. If the court believes the first determination is met, then the court determines whether the actions were reasonable under clearly established law and information possessed. Clearly established law means previous case law (or precedent) examining other actions and incidents of similar nature. If the actions were reasonable (or better stated as not unreasonable) under case law precedent, the case is dismissed under the qualified immunity doctrine. 

Now that we have a better understanding of how qualified immunity works, let’s look at a recent qualified immunity case. The Supreme Court of the United States (SCOTUS) was recently asked to review Howse v. Hodous, 953 F.3d 402 (6th Cir. 2020). This case began following Shase Howse suing several police officers in Cleveland for allegedly violating his Fourth Amendment protections. Howse was walking home when an unidentified Cleveland police officer approached him and asked if he had any weapons. Following a brief interaction and pat down, Howse was free to leave and continued walking home. 

Upon arriving home and walking up his steps, two more officers arrived in an unmarked vehicle to Howse’s residence and initiated conversation with him. The officers state that Howse was acting suspiciously while on the front steps of the house, which is located in an area of Cleveland with high crime and gang activity. When asked if he lived at the residence, Howse provided colorful language indicating that he did. This prompted an escalated exchange which resulted with one of the officers telling Howse he was under arrest and to place his hands behind his back. Howse began to yell he had not done anything wrong, and a scuffle ensued. Howse was brought to the ground and struck in the face following Howse attempting to strike and harm the officers. Howse ultimately brought three claims against one of the officers (Hodous) following this incident. Excessive force under the Fourth Amendment, malicious prosecution under the Fourth Amendment, and a claim for assault and battery under Ohio law. 

The 6th Circuit court stated that Howse did not present any prior case law that addresses the conduct at issue. This is the second determination the court must make when analyzing whether qualified immunity is present for the government official. Subsequently, the court stated that Howse did not present clearly established case law in which this issue had been addressed and stated that the officers were entitled to qualified immunity. The court also denied the claim for malicious prosecution due to sufficient probable cause for the prosecution against Howes being present. Finally, the court held the officers were entitled to statutory immunity on the assault and battery claims under Ohio law as well. 

Following this holding Howse petitioned the SCOTUS to hear the matter through a writ of certiorari. This phrase, writ of certiorari, means you are asking a higher court to review the decision a lower court has made.  The SCOTUS receives thousands of these writs every year and will typically only hear approximately 100 to 150 of these writs. In order for a writ of certiorari to be granted, at least four of the nine justices must vote to hear the case. This vote did not land in favor of hearing the writ, and Howe’s petition was denied. Barring any drastic changes to the qualified immunity case law precedent, many more of these writs on qualified immunity grounds will likely continue to fail. 

Manslaughter & Murder – What’s the Difference?

On March 31, 2021, the Minnesota Supreme Court issued an opinion authored by Justice Chutich regarding third-degree murder. The Court held that, “a person commits an eminently dangerous act . . . without regard to human life, when based on the surrounding circumstances one can infer that the defendant was indifferent to the loss of life that the defendant’s eminently dangerous act could cause.” State v. Coleman, A19-0708 (Minn. March 31, 2021).  The Court further opined that a defendant is guilty of third-degree murder when the following elements are met: 

(1)       Defendant causes the death of another without intent; 

(2)       by committing an act eminently dangerous to others, that is, an act that is highly likely to cause death; and 

(3)       the nature of the act supports an inference that the defendant was indifferent to the loss of life that this eminently dangerous activity could cause. 

This opinion originated from a case out of Chisago County, Minnesota. Defendant, Eric Coleman, was charged with, amongst other things, third-degree depraved mind murder in violation of Minn. Stat. § 609.195(a) (2020). Coleman was driving his snowmobile with a blood alcohol level of approximately .16. While driving his snowmobile he hit several people in and around an ice shack on the lake. One of the individuals he struck ultimately died due to injuries sustained. During Coleman’s trial, the district court judge instructed the jury on the standard to apply in determining Coleman’s guilt. The instruction included that Coleman only have acted with the knowledge that someone may be killed. Coleman was ultimately convicted by the jury. 

On appeal, Coleman argued that the above jury instruction incorrectly defined what reckless was in determining whether Coleman was guilty of third-degree murder. In particular, Coleman argued that a person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the element of the offense exists or will result from the conduct. The court of appeals affirmed the decision of the district court, finding the mental state required for third-degree, depraved heart murder is equivalent to a reckless standard.  Both parties petitioned the Minnesota Supreme Court for review on different grounds and both petitions were granted.  

The holding outlined above, “draws an important distinction between third-degree depraved mind murder and second-degree culpable negligence manslaughter.” Id. at 8. Second-degree culpable negligence manslaughter occurs when a person causes the death of another . . . by the person’s culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another. Third-degree depraved mind murder occurs when a person commits an eminently dangerous act that supports an inference that the defendant was indifferent to the loss of life that the defendant’s eminently dangerous activity could cause. So- what is the difference? 

The difference between third-degree murder and second-degree manslaughter is when the act is performed under circumstances manifesting extreme indifference to human life. Extreme indifference to human life will provide for facts supporting third-degree murder. Negligence will result in facts supporting the lesser charge of second-degree manslaughter. The difference in the facts that give rise to a third-degree murder charge is what the respective individual’s mental state is. The facts must show that the defendant acted with indifference to the potential loss of life their eminently dangerous act could cause. 

Statutes- like the sculptures?

Many people know the basic laws they should not break. Try not to speed. Do your best to stop at every stop sign. And for the love of God, never jaywalk. What most people do not know, however, is all of these basic laws have an accompanying statute that provides the ability for the laws to be enforced. Put plainly, criminal statutes provide what is against the law and how the law can be enforced in a detailed manner. Unfortunately, this detail can become more confusing than anything else. Interpreting the different language used can often be a troubling conundrum for an everyday citizen to analyze. An attorney can be a helpful resource in this analysis. While no attorney will ever claim to know all of the statutes in the world; they will be able to explain what each statute means. 

Sometimes the language in a statute can play into your benefit when faced with a criminal charge. This exact scenario occurred this past summer in State v. Gibson, to begin with, at least. Darryl Gibson was driving his vehicle eastbound on Interstate 90 in Worthington, MN when he decided to exit off to Highway 59. Before proceeding onto Highway 59, Mr. Gibson had to complete a stop when he reached a stop sign. Mr. Gibson attempted to complete a proper stop. This stop, however, was past the painted stop line associated with the stop sign. A nearby officer saw this and initiated a traffic stop for Mr. Gibson’s violation of Minn. Stat. § 169.30(b). The statutory provision states, in part, that, “[e]very driver of a vehicle shall stop at a stop sign or a clearly marked stop line before entering the intersection . . . .” Minn. Stat. § 169.30(b). During the traffic stop, the officer received permission to search Mr. Gibson’s vehicle, which resulted in the officer finding items related to forgery. Mr. Gibson was subsequently charged with felony forgery 

Mr. Gibson’s attorney challenged whether the police officer’s stop of Mr. Gibson was lawful. Police officers are required to have lawful authority to stop an individual. If an officer witnesses an individual violating the law, they have the requisite authority -probable cause- to stop that individual. Mr. Gibson’s attorney argued that Mr. Gibson did not violate Minn. Stat. § 169.30(b), as he did, in fact, stop his vehicle and therefore did not provide the officer with lawful authority to stop him. 

A Nobles County Judge agreed that Mr. Gibson did not violate the statute, and granted the motion to suppress the evidence seized as a result of the stop and vehicle search. The Judge interpreted the statute to mean that an individual was required to stop at the intersection, not at the stop sign or stop line. The Minnesota Court of Appeals ultimately reversed this decision, which the Minnesota Supreme Court affirmed on Mr. Gibson’s appeal. Nonetheless, this case shows how a basic violation of a traffic law does not mean your ability to challenge the charge is gone. Hiring an effective, detail orientated criminal defense attorney can make the difference in making these types of challenges successfully.

Contact Private Criminal Defense Attorney Alec Rolain of Fowler Ditsch, LLC, to inquire about representation in your alleged criminal matter. Fowler Ditsch, LLC, has represented clients in criminal proceedings for 20 + years. Contact us by email at rolain@fowlerditsch.com or phone at 651-287-8883.

Holiday DWIs

The Holiday season is upon us. With this comes a time for celebration with family, friends, and loved ones. While the year 2020 will not allow for much traveling to gather with these groups, we understand that some travel may occur, nonetheless. Celebrating the holidays may include consumption of alcohol as well. We implore you to never get behind the wheel after doing so. In some instances, you may want to stay away from your vehicle altogether. 

Minnesota defines the crime of driving while impaired as: “It is a crime for any person to drive, operate, or be in physical control of any motor vehicle . . . when . . . the person’s alcohol concentration at the time . . . of driving, operating, or being in physical control of the motor vehicle is 0.08 or more.” (emphasis added) Minn. Stat. § 169A.20, Subd. 1(4). Many know that driving while having a blood alcohol level of 0.08 or more is illegal and may result in an arrest for DWI. What most do not know, however, is operating or being in physical control of a vehicle can have the same result. 

Operate is analogous to drive for purposes of Minnesota’s DWI statutes. So, what does this mean? If you have a self-propelling vehicle, like the Tesla perhaps, you can still get a DWI if you take a ride in it while your blood alcohol concentration is 0.08 or higher. While the self-driving feature of some vehicles is extremely cool, it won’t keep you from a DWI if you decide to take a ride following a few drinks. A rather straightforward area of the DWI laws. The more controversial portion of the DWI statute, physical control, is not so clear. 

A person can be deemed in “physical control” of a motor vehicle through a wide range of factors. Case law in Minnesota instructs judges to assess the entire situation in determining whether someone was in physical control of a vehicle while their blood alcohol concentration was at 0.08 or higher for purposes of DWIs. For instance, in Minnesota, you can be charged with a DWI if you are sleeping in your car while your blood alcohol concentration is 0.08 or higher. If you thought sleeping off the drinks in your car was the smart decision, think again! 

The majority of “physical control” DWIs come from the location of the vehicle’s keys. When looking at all the factors surrounding a physical control DWI, the location of the keys can often be the deciding turn. Minnesota case law states that the term “physical control” should be given the broadest meaning possible to deter inebriated persons from getting into vehicles except as passengers. As an example, getting into your vehicle to warm up on a cold night while your blood alcohol concentration is at 0.08 or higher can result in DWI charges. Navigating this rather grey area of law can be difficult. Hiring an effective criminal defense attorney can be the difference in avoiding a DWI for being deemed in physical control of a vehicle. 

Contact Private Criminal Defense Attorney, Alec Rolain of Fowler Ditsch, LLC, to inquire about representation in your alleged criminal matter. Fowler Ditsch, LLC, has represented clients in criminal proceedings for 20 + years. Contact us by email at rolain@fowlerditsch.com or phone at 651-287-8883.

Omnibus Hearing? What’s That?

You made it to your arraignment hearing and discussed your case with the County Attorney handling the matter for the State. You think you may have been wrongfully arrested, searched, etc., and do not agree with any of the deals or plea agreements the County Attorney offered. Now what? You’ll enter a plea of not guilty and set your case on for an additional hearing, an omnibus hearing.  The omnibus hearing is the first time you can bring challenges in your case (motions) for a judge to decide. If your challenges are successful, the court may dismiss the charges against you.  You need to tie the facts of your case together with the law to convince the judge the prosecutor should not be allowed to go any further.  As you can imagine, this requires a specialized understanding of criminal procedure and supporting case law. This is why hiring a private criminal defense attorney can be very beneficial. 

            The omnibus hearing can be better classified as the probable cause determination hearing. Probable cause is a constitutional requirement that police officers and other state agencies must have before conducting searches or seizures of your person. Probable cause is also required when obtaining a warrant, arresting an individual, and having a criminal charge proceed to trial, to name a few. If probable cause exists for purposes of a charge proceeding to trial, it means that the judge believes the evidence being presented against you shows that you likely did commit the alleged crime.  

The omnibus hearing allows for the defendant to challenge the probable cause supporting the charge. The County Attorney has the burden of proving that each individual element of the charged crime is supported by probable cause. The Defendant and his or her attorney can make arguments as to why this burden is not being met. These issues are almost always extremely fact-intensive. Knowing which facts are important to highlight in your argument is key to successful omnibus hearing motions. A good private criminal defense attorney can be the difference in having your motions granted.  

Contact Private Criminal Defense Attorney Alec Rolain of Fowler Ditsch, LLC, to inquire about representation in your alleged criminal matter. Fowler Ditsch, LLC, has represented clients in criminal proceedings for 20 + years. Contact us by email at rolain@fowlerditsch.com or phone at 651-287-8883.

What to Expect at an Arraignment

An “Arraignment” or “First Appearance” is one of the first steps in the criminal process that involves a hearing before a judge in court. After you have been arrested or a criminal complaint has been filed against you by the state, you will receive an arraignment date. You will receive a notice of this hearing. This notice will typically be accompanied by the summons and complaint the county attorney has filed on behalf of the state against you, the Defendant. This summons and complaint will provide you with the crime you are accused of committing, the statute this crime is a violation of, and what the potential penalties are. In addition, the complaint will contain a statement of probable cause, which sets forth facts the County Attorney used in charging you with the alleged offense. For instance, if charged with a DUI, the statement of probable cause will outline what events occurred that gave rise to the charges now being filed against you. 

            For many people the arraignment will be their first time ever appearing in court. It can be a nerve-wracking experience, especially when your freedom is on the line. During this hearing the judge will read the charge(s) against you, ensure you understand your rights, and you will have an opportunity to enter a plea. Having a private criminal defense attorney can be very valuable at this stage, even if you only intend to plead guilty. This is due to the fact that the arraignment stage of a criminal proceeding is typically the first time the prosecuting attorney will have reviewed your case file. During this initial review of the file, most prosecuting attorneys will consider the option of reaching a plea deal with the defendant. A plea deal can allow for you to receive a lesser punishment than what is typically imposed for the offense you are alleged to have committed. 

Having a private criminal defense attorney allows for an easier understanding of the different plea deals that may be offered, and which of those deals may be a good idea for you to take. A private criminal defense attorney can also help advise on when you should enter a plea of not guilty and set your criminal matter on for an additional hearing.

Contact Private Criminal Defense Attorney Alec Rolain of Fowler Ditsch, LLC, to inquire about representation in your alleged criminal matter. Fowler Ditsch, LLC, has represented clients in criminal proceedings for 20 + years. Contact us by email at rolain@fowlerditsch.com or phone at 651-287-8883. 

New Attorney at Fowler Ditsch!

Important Announcements!

Fowler Ditsch, LLC is excited to announce Associate Attorney Alec Rolain has joined the law firm as we continue to grow. 

Alec Rolain

Alec attended Saint Mary’s University of Minnesota where he majored in political science and philosophy. While at Saint Mary’s, Alec was a member of the NCAA DIII Cardinal baseball team. Upon graduation, he attended Mitchell Hamline School of Law. There, Alec worked for Hoglund, Chwialkowski & Mrozik PLLC as a Student Certified Attorney and Ambrose Law as a criminal defense law clerk. Following law school, Alec accepted a Judicial Clerkship with First Judicial District Assistant Chief Judge David L. Knutson, in Dakota County. Alec now joins Fowler Ditsch after being admitted to practice law in Minnesota in November of 2019. Outside work, Alec enjoys an active life style, which includes golfing, skiing, working out, and spending time outside. 

Alec can be reached at our office number, 651-287-8883, or via email at rolain@fowlerditsch.com.  

At the same time, we are both excited and saddened to say that our long-term paralegal Vanessa is leaving us to go back to school. 

Vanessa Fedorowski

Beginning this Fall, Vanessa will be enrolled at Concordia University in St. Paul to get her Master’s degree in Human Resources Management.  We are happy for her, and someday soon, you may see Vanessa working in Employee Relations with some of you.  Please join us in thanking Vanessa for her many years of work for the firm and help she has provided to all of our members.  Vanessa’s last day will be Friday, July 10.  Good Luck on this next chapter!

Robert Fowler defends Detroit Lakes, MN Police Sergeant



Rob Fowler on the John Williams show on WCCO with Mike Max

Rob Fowler on the John Williams show on Wcco.


Mike Max filling in for John Williams talks to attorney Rob Fowler about an incident with a Richfield Police Officer.

Hear it hear:

10-6-15 John Williams Show 5pm: Robert Fowler & Sheriff Kurt Freitag Mike Max was in for John! In this hour, he talked with Robert Fowler about the case in Richfield where an officer appears to slap a teen. Then he talked to Freeborn County Sheriff Kurt Freitag about how he handled a harrassment case in a unique fashion

Attorney Robert Fowler of Fowler Ditsch contributes to the book “Surviving a Law Enforcement Career”

Dr. Dennis L. Conroy and Christine Hess Orthmann have come out with a book called “Surviving a Law Enforcement Career, A Guide for Cops and Those who Love Them.”
This book is written for “all the cops who live this stuff every day and the families who live with them.”

What is special about this book for Fowler Ditsch is that attorney Robert Fowler helped contribute with Chapter 12,
“Surviving Legal Battles.”

Other Chapters talk about:
Marriage, divorce, burnout and stress.

Go ahead and check it out here:

Link to check out book here.

Abercrombie & Fitch and Title VII of the Civil Rights act of 1964; what it means for employers now

The United States Supreme Court decided on June 1, 2015 that clothing retailer Abercrombie & Fitch had violated Title VII of the Civil Rights act of 1964 when it refused to hire Samantha Elauf based solely on an unsubstantiated belief that she would refuse to remove a headscarf she wore to the interview to comply with Abercrombie’s dress code. Ms. Elauf is a practicing Muslim, and the company correctly guessed that she wore a headscarf in accordance with her Muslim religion. Because it based its hiring decision on a practice associated with religion, the Court said that Abercrombie violated the law. This significant opinion by the Court shows, again, that employers simply cannot make hiring or other employment decisions motivated by race, color, religion, sex, or national origin.

Abercrombie’s position was that they had no actual knowledge, one way or the other, of Ms. Elauf’s religion, and so they could not be held to have made any hiring decision “because of. . . religion.” The topic of religion never came up. Ms. Elauf scored well enough to be hired, but the hiring manager did not know whether the headscarf would violate the company’s no-“caps” dress code policy. The hiring manager assumed, correctly, that Ms. Elauf wore the headscarf in accordance with her understanding of her Muslim faith.   That assumption was enough, said the Court, to improperly motivate the decision to not hire Ms. Elauf, in violation of Title VII.

The decision makes explicit that Title VII provides extra protections to these protected classes. “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s religious observance and practice.’” So, it was not enough for Abercrombie to say that no employee is permitted to wear a “cap,” be it a Muslim headscarf, a Jewish Yarmulke, or a Boston Red Sox ball cap (to signify allegiance to the most significant faith in New England). Federal law says that employers must make exceptions to their otherwise neutrally-applied rules.

There are limits. Employers can still have dress codes, but they bear the burden to show that they could not reasonably accommodate the religious practice without an “undue hardship” on the employer’s business. Theoretically, Abercrombie could still make the case that a headscarf is so far outside their required “look” that it would hurt business. This might be a stretch for Abercrombie, even considering its reputation for closely adhering to its appearance standards. But, other employer’s might have an easier time. Hooter’s will likely be able to avoid accommodating a woman who, because of her faith, wants to wear a hijab at work. Like them or not, Hooter’s makes money because it has scantily clad women serving its customers.

What should the company have done? Consider this thought experiment. Assume the candidate is a great candidate for employment, but she wore a headscarf to the interview. The manager could state that the company has a no-“caps” policy, and ask whether the applicant is willing to comply with the policy. If the answer is “yes,” problem solved. The applicant has not requested an accommodation to their policy, their policy is followed, so they have no problem. If the answer is “no,” does the company have any obligation to inquire further as to the applicant’s reasons? Probably, if the company believes that the applicant refuses due to a religious practice or belief. If the applicant tells the interviewer that their refusal is simply because they prefer to be covered, then the employer’s obligation to accommodate is eliminated. They would not be obligated to hire. If the reasons for refusing are religious, then the burden is on the company again to determine whether they can make an accommodation to their no-“caps” policy. Of course, the prudent company will establish bona fide occupational qualifications for its employment positions.

So does this open the flood-gates? Probably not, but it means that employers cannot just ignore the hijab in the room

Attorney Rob Fowler talks to KSTP news about Baltimore.

Prosecution of Police in Baltimore Sparks Discussion in Minn.
Attorney Rob Fowler talks to KSTP channel 5 news about the Baltimore Police Situation.


Attorney Rob Fowler on the air with WCCO’s John Williams

Rob Fowler on the John Williams show on Wcco.


In this segment starting at 4min 45secs: John talked to an attorney Rob Fowler about the kind of defense the police in Baltimore might mount.

Rob Fowler on the air with WCCO’s John Williams

Tomorrow at 4:30pm catch Rob Fowler on the air with WCCO’s John Williams.  John Williams weekdays from 3 p.m. – 7 p.m. If you have something to say on a topic, call-in at 651-989-9226 or text 81807.

Rob will be talking about legal representation for Law Enforcement Officers and the ongoing police topics affecting our nation today.

Catch it live here:


The importance of Collective Bargaining Agreements

The importance of Collective Bargaining Agreements:
Here is that court order vacating the Adrian Peterson arbitration award for the Minnesota Vikings player. The Arbitrator’s decision was overturned by District Court, “The NFLPA argues that the award fails to draw its essence from the CBA because it ignores established law of the shop, namely, that the New Policy may not be retroactively applied. . . . [Arbitrator] Henderson simply disregarded the law of the shop and in doing so failed to meet his duty under the CBA”.


Fowler Law Firm LLC will now be doing business as “Fowler Ditsch”

As promised a few weeks ago, we have a MAJOR ANNOUNCEMENT! It is with great honor and pride that I welcome Joseph Ditsch as a partner in my law firm. He is my friend and colleague and fraternity brother of over 20 years. It is now official. For the last 10 years I was a solo practitioner law firm. I have carried Fowler Law as far as I can on my own. We now transition to a partnership law firm and have greater possibilities and abilities. Fowler Law Firm LLC will now be doing business as simply Fowler Ditsch. Congratulations to you Joe, you have earned it. Joe is a fellow MIT educated man and brings 15 years of labor management experience. In addition, his legal skills and confident friendly persona will be welcome to the partnership. We will continue to be General Counsel to the Minnesota Fraternal Order of Police https://www.mnfop.com, and MNPEA at mnpea.com. Please feel free to contact us at www.fowlerditsch.com/contact