Wishnatsky v. Bergquist, 950172

Decision Date29 May 1996
Docket NumberNo. 950172,950172
Parties110 Ed. Law Rep. 1246 Martin WISHNATSKY, Plaintiff and Appellant, v. Paul BERGQUIST, individually and as editor of the NDSU Spectrum; John Willoughby, individually and as an NDSU police officer; Thomas Bernd, individually and as an NDSU police officer; Tim Lee, Chief of Police, North Dakota State University; James Ozbun, President, North Dakota State University, Defendants and Appellees. Civil
CourtNorth Dakota Supreme Court

Martin Wishnatsky, Fargo, pro se.

Mark B. Bring (argued), of Vogel, Kelly, Knutson, Weir, Bye & Hunke, Ltd., Fargo, for defendants and appellees.

MESCHKE, Justice.

Martin Wishnatsky appeals from a summary judgment dismissing his claims for false arrest against officials of North Dakota State University (NDSU) and the editor of the NDSU student newspaper. We affirm.

I. BACKGROUND

In early 1993, Wishnatsky, who was not an NDSU student, sought to place ads expressing his anti-abortion views in the NDSU student newspaper, the Spectrum. He met with Paul Bergquist, editor of the Spectrum, and various NDSU officials to discuss the matter. On April 7, 1993, Wishnatsky went to the Spectrum offices in the NDSU student union building to see if an ad he had submitted had run in the latest edition. After a brief encounter, Bergquist asked Wishnatsky to leave the Spectrum offices. When Wishnatsky refused to leave despite Bergquist's repeated requests that he do so, Bergquist called the campus police for assistance.

Before the campus police arrived, Wishnatsky left the Spectrum offices and sat down in the Students Older Than Average (SOTA) lounge, located down the hall from the Spectrum offices in the student union. Bergquist made two additional calls to the campus police: one to inform them Wishnatsky had left the Spectrum offices, and another to advise them Wishnatsky was still in the building. Officers John Willoughby and Thomas Bernd of the NDSU campus police responded to the calls. They spoke briefly to Bergquist in the Spectrum offices, and were told by another student that the man they were looking for was in the SOTA lounge.

Willoughby and Bernd approached Wishnatsky, asked his name repeatedly, and inquired whether he had any legitimate business on campus. Wishnatsky refused to answer. Willoughby told Wishnatsky that NDSU had a trespassing policy for non-students who had no legitimate business on campus, and he advised Wishnatsky he could give him a trespass "warning card" authorized by the trespass policy. Willoughby gave Wishnatsky a copy of the NDSU trespass policy that quoted the North Dakota Century Code, NDCC 12.1-22-03(3), on criminal trespass. Willoughby also showed Wishnatsky a trespass warning card that stated: "I must ask you to leave the university campus and if you refuse or return you may be arrested for trespassing." Wishnatsky still refused to give his name or answer any questions.

What happened next is disputed. Willoughby and Bernd assert that they asked Wishnatsky to come to the campus police station, and Wishnatsky voluntarily went with them. Wishnatsky asserts in an affidavit that the officers advised him they would take him into custody if he did not give his name, and then "laid hands upon me" and "escorted me out of the building to the police car outside." Wishnatsky was taken to the campus police station, where he met with Tim Lee, the campus chief of police. After a brief discussion about the situation, Wishnatsky left the police station.

Eleven days later, Wishnatsky began this action in county court against Bergquist, Willoughby, and Bernd, and also against Lee and James Ozbun, President of NDSU, in only their official capacities, alleging claims under state law and 42 USC § 1983 for false arrest. Wishnatsky also sought a declaratory judgment that the NDSU trespass policy was unconstitutional.

On October 15, 1993, the county court ordered entry of partial summary judgment dismissing the declaratory judgment claim, holding that it did not have subject matter jurisdiction over the declaratory judgment action, and that Wishnatsky did not have standing to challenge the constitutionality of the trespass policy because he was never issued a trespass warning card under the policy. 1 Wishnatsky has not appealed from the county court's ruling.

The defendants then moved for summary judgment dismissing Wishnatsky's remaining claims under state law and 42 USC § 1983 for damages. Wishnatsky opposed the motion and sought to amend his complaint to assert "supervisory authority" claims under § 1983 against Tim Lee and Rick Johnson, NDSU's general counsel, for their roles in developing and implementing the trespass policy. At the hearing on the motions, Wishnatsky orally moved to amend his complaint to allege gross negligence by Willoughby and Bernd.

The trial court 2 ordered summary judgment dismissing the remaining claims, concluding that (1) the claims against the defendants in their official capacities were barred by sovereign immunity; (2) the § 1983 claims could not be asserted against the defendants in their official capacities; (3) Wishnatsky was not arrested; (4) if Wishnatsky was arrested, Willoughby and Bernd had probable cause to believe Wishnatsky had committed misdemeanor criminal trespass in their presence; (5) there was no evidence Bergquist had provided false information or ordered the officers to arrest Wishnatsky; and (6) the defendants were immune from liability in their individual capacities for Wishnatsky's claims. The court did not specifically address Wishnatsky's motions to amend his complaint, but judgment was entered dismissing all claims against all defendants. Wishnatsky appealed. 3

II. STANDARDS OF REVIEW

Summary judgment under NDRCivP 56 is a procedural device for the expeditious disposition of controversies without a trial when, after viewing the evidence in the light most favorable to the opposing party and giving that party the benefit of all favorable inferences, there is no genuine issue of material fact or inferences to be drawn from undisputed facts, or only questions of law remain. Reiger v. Wiedmer, 531 N.W.2d 308, 310 (N.D.1995); North Shore, Inc. v. Wakefield, 530 N.W.2d 297, 299 (N.D.1995). The party seeking summary judgment bears the initial burden of showing the absence of genuine issues of material fact. Zueger v. Carlson, 542 N.W.2d 92, 94 (N.D.1996); Kary v. Prudential Insurance Co., 541 N.W.2d 703, 705 (N.D.1996). Once the moving party meets that initial burden, the opposing party may not rest upon mere allegations or denials in the pleadings, but must present competent admissible evidence establishing a genuine issue of material fact. Zueger, 542 N.W.2d at 94. As we explained in North Shore, 530 N.W.2d at 299, even if a factual dispute exists, summary judgment is appropriate if the law is such that resolution of the factual dispute will not change the result.

Rule 56 requires the entry of summary judgment against a party who fails to establish the existence of a factual dispute for an essential element of his claim that he would have to prove at a trial. Soentgen v. Quain & Ramstad Clinic, P.C., 467 N.W.2d 73, 77 (N.D.1991). As Soentgen said, when no pertinent evidence on an essential element is presented in resistance to the motion for summary judgment, it is presumed that no such evidence exists.

Wishnatsky asserts that the defendants failed to properly support their motion for summary judgment because the only affidavit submitted was by Tim Lee, the NDSU chief of police. Wishnatsky argues that Lee had no personal knowledge of the occurrences at the student union, and his allegations made on information and belief do not satisfy the requirement of NDRCivP 56(e) that affidavits in support of a summary judgment motion be made on personal knowledge. Wishnatsky therefore claims the motion was not properly supported and should have been denied.

We might agree with Wishnatsky if Lee's affidavit was the only evidence presented to support the motion. In this case, however, there were extensive answers to interrogatories, signed and sworn to by Willoughby, Bernd, and Bergquist, that set forth their versions of the events at the student union. Answers to interrogatories may be used to support a motion for summary judgment. NDRCivP 56(c); Kary, 541 N.W.2d at 705. We conclude the motion was properly made and supported, and Wishnatsky then had the burden to show genuine issues of material fact.

III. ARREST

The defendants assert, and the court concluded, that Wishnatsky was not arrested or otherwise detained against his will, but voluntarily accompanied the officers to the NDSU police station. Wishnatsky argues his affidavit raises genuine issues of material fact about whether he was arrested.

For an arrest, there must be a detention of the person by means of physical force or show of authority. State v. Ritter, 472 N.W.2d 444, 447 (N.D.1991). As explained in State v. Anderson, 336 N.W.2d 634, 639 (N.D.1983), formal words of arrest are not required, but circumstances must exist that would cause a reasonable person to conclude that he was under arrest and not free to leave.

Although the evidence presented to the trial court on this issue was in conflict, Wishnatsky, as the party opposing summary judgment, is entitled to all favorable inferences. Reiger, 531 N.W.2d at 310. In his affidavit, Wishnatsky says Willoughby stated, "If you do not give me your name, we are taking you into custody." According to his affidavit, the officers then "laid hands upon" Wishnatsky, escorted him out of the building to the patrol car, and took him to the campus police station. Wishnatsky's affidavit is sufficient to raise an issue of fact about whether he was arrested. For purposes of our analysis on the remaining issues, we therefore view the evidence in the light most favorable to Wishnatsky and assume that he was arrested.

IV. BERGQUIST

Wishnatsky asserts ...

To continue reading

Request your trial
12 cases
  • Busch v. City of Anthon, Iowa
    • United States
    • U.S. District Court — Northern District of Iowa
    • 9 Noviembre 2001
    ...that a crime has been committed, without requesting an arrest, is not liable for false arrest and imprisonment); Wishnatsky v. Bergquist, 550 N.W.2d 394, 399 (N.D. 1996) (holding there is no liability where a private citizen merely summons the police for assistance and does not specifically......
  • Hanks v. Powder Ridge Restaurant Corp.
    • United States
    • Connecticut Supreme Court
    • 29 Noviembre 2005
    ...evinces a reckless indifference to the rights of others." [Citations omitted; internal quotation marks omitted.]); Wishnatsky v. Bergquist, 550 N.W.2d 394, 403 (N.D.1996) ("[Where] [g]ross negligence is defined [by statute] as the want of slight care and diligence. . . . This court has cons......
  • Van Stelton v. Jerry Van Stelton, Donna Van Stelton, Eugene Van Stelton, Gary Christians, Doug Weber, Scott Gries, Nate Krikke, Robert E. Hansen, Daniel Dekoter, Osceola Cnty., Iowa, & Dekoter, Thole & Dawson, P.C., C11-4045-MWB
    • United States
    • U.S. District Court — Northern District of Iowa
    • 30 Septiembre 2014
    ...that a crime has been committed, without requesting an arrest, is not liable for false arrest and imprisonment); Wishnatsky v. Bergquist, 550 N.W.2d 394, 399 (N.D. 1996) (holding there is no liabilitywhere a private citizen merely summons the police for assistance and does not specifically ......
  • State v. Linghor
    • United States
    • North Dakota Supreme Court
    • 14 Diciembre 2004
    ...existed that would have caused a reasonable person to conclude he was under arrest and not free to leave. Wishnatsky v. Bergquist, 550 N.W.2d 394, 398 (N.D.1996). The benefit of taking such determinations out of the subjective or discretionary realms and placing them on objective ground is ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT