                                     ___________

                                     No. 95-2014
                                     ___________

Shelly Marie Ott,                        *
                                         *
         Plaintiff - Appellee,           *
                                         *
        v.                               *
                                         *
City of Champlin, a Minnesota            *
Municipal Corporation; Gene H.           *   Appeal from the United States
Kulander, Champlin Chief of              *   District Court for the
Police; Allen Brunns, Champlin           *   District of Minnesota.
Police Sgt.; Robert L. Penney,           *
Champlin Police Officer; Jolene          *
Sander, Champlin Police                  *
Officer,                                 *
                                         *
         Defendants - Appellants.        *

                                     ___________

                        Submitted:   November 15, 1995

                            Filed:   March 29, 1996
                                     ___________

Before BEAM, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

                                     ___________

JOHN R. GIBSON, Circuit Judge.


        We have before us the second interlocutory appeal in this case, which
arises out of police officers' actions in breaking up a party at which
Shelly Marie Ott was a guest.        In the first appeal we affirmed the entry
of summary judgment against the plaintiffs on their federal civil rights
and state tort claims because the officers were entitled to qualified and
official immunity.       Greiner v. City of Champlin, 27 F.3d 1346 (8th Cir.
1994).       The district court had also entered summary judgment against Ott
on her claim under the Minnesota Human Rights Act, Minn. Stat. § 363.03,
subd.
4 (1991).    The officers did not claim immunity as to the Minnesota Human
Rights Act claim, because they believed official immunity was not a defense
to that claim under Minnesota law.   We reversed the summary judgment on the
Minnesota Human Rights Act claim and remanded for trial.    Greiner, 27 F.3d
at 1356.    In response to a change in Minnesota law making official immunity
available as a defense to the Minnesota Human Rights Act claim, the
officers filed a new summary judgment motion in the district court,1
contending that they were entitled to official immunity on the undisputed
facts and as a matter of collateral estoppel.      The district court denied
the officers' motion, and we affirm.


     We recited the facts of this case at length in Greiner, and need not
repeat them here, since the sole remaining issue concerns only an isolated
incident.    The Minnesota Human Rights Act claim is based on the allegation
that police Sergeant Allen Bruns, after subduing and handcuffing Shelly
Marie Ott, left her kneeling on the floor of the garage with her shirt
pulled up over her head, exposing her in a brassiere.    When Ott asked that
her shirt be put back in place, Bruns reportedly refused to do so, saying,
"Hey, we are all women here."      Another officer came and put Ott's shirt
back in place.


     In the suit as originally filed, Ott, as well as other plaintiffs
whose claims have been dismissed, alleged state-law claims of trespass,
assault, battery, false arrest, and intentional infliction of emotional
distress.    Greiner, 27 F.3d at 1355.     The officers raised the official
immunity defense to the common-law tort claims.     The plaintiffs sought to
defeat official immunity by pointing to four acts that they contended
showed malice; one of these acts was Bruns' refusal to put Ott's shirt back
in place.     We concluded that this allegation did not establish a prima
facie case




     1
     The Honorable Michael J. Davis, United States District Judge
for the District of Minnesota.

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of malice, stating:


       As for Bruns' alleged comment, which he denies, it is evident
       that it does not have bearing on any claim of trespass,
       assault, battery, or false arrest.      The closer question is
       whether it tends to show malice with reference to intentional
       infliction of emotional distress.      Bruns' conduct must be
       considered in two respects. We have already commented that the
       action in pulling Ott's tee-shirt over her head occurred during
       the free-for-all and her resistance of arrest. This was the
       extent of the district court's ruling, and we conclude there
       was no error. It was only after she had been handcuffed and
       placed on her knees in the garage that she made the request to
       Bruns that her shirt be put back in place, and he allegedly
       made the comment. We believe this to be a close issue, but in
       light of the emotional nature of the extended period of events
       that preceded it, we cannot conclude that it can be said to
       show malice.


Id. at 1355.


       However, we concluded that the allegation about the shirt was
sufficient to establish a prima facie case under the Minnesota Human Rights
Act:


             The facts were clear that Ott was handcuffed and placed
       in the garage on her knees. As soon as she was handcuffed,
       which she says was in the house, she asked Bruns to pull her
       shirt down, and he made the statement, "We are all women here".
       She was upset and felt humiliated. There was a conflict in
       testimony as to how long a time elapsed between her request
       that her shirt be put into place, and the time that Officer
       Nozzarella put it back in place. While the issue is far from
       clear, and much affected by issues of credibility that may not
       be resolved on summary judgment (such as Ott's admission that
       she was between sober and drunk, and had drunk at least six or
       eight beers), we conclude that her treatment in this respect
       was so different from what could be expected as to give rise to
       an inference of gender discrimination. We conclude that it is
       a jury issue whether the delay in putting Ott's shirt back into
       place after she had been handcuffed and had requested to have
       her clothing rearranged makes a prima facie case of
       discrimination on the basis of gender, with the particular
       embarrassment and humiliation that would be




                                    -3-
     expected to result to women from such treatment.


Id. at 1356.   We remanded on this claim.


     On remand the officers argued that the defense of official immunity
had become available in claims under the Minnesota Human Rights Act, see
State by Beaulieu v. City of Mounds View, 518 N.W.2d 567 (Minn. 1994), and
that they were entitled to summary judgment on that claim.     The officers
argued that the issue of official immunity for the shirt incident was
decided in Greiner and was therefore subject to issue preclusion.2    Even
if it was not precluded, the officers argued that the facts entitled them
to summary judgment on the ground of official immunity.


     The district court denied the summary judgment motion, reasoning that
the applicability of official immunity in the context of the Minnesota
Human Rights Act claim was not litigated in Greiner.   The court also held
that there were genuine issues of fact as to whether Bruns' act would be
protected by official immunity.   Specifically, the court held that there
was a factual issue as to the amount of time that elapsed between Bruns'
act of handcuffing and Ott's request to replace her shirt, so that it was
unclear whether the request occurred in the context of the struggle to
arrest Ott or should be considered a discrete event.


     The officers renew their issue preclusion and official immunity
arguments on appeal.   The officers argue that once there was a finding of
official immunity with regard to an act, the finding must necessarily be
the same for any cause of action based on the same facts.   They argue that
official immunity is based on determinations of whether the defendant's
acts were discretionary or ministerial and whether or not they were
malicious.   They




     2
     Though the officers argue issue preclusion, their argument is
more properly characterized as law of the case.

                                    -4-
contend that these determinations do not vary according to the type of
legal right the acts are alleged to have violated.


       Our reading of Minnesota law answers the officers' argument.                   In
State by Beaulieu v. City of Mounds View, the Minnesota Supreme Court
reiterated the definition of "malicious wrong" as one in which the
"official has intentionally committed an act that he or she had reason to
believe is prohibited."          518 N.W.2d at 571.        In Beaulieu, the court
analyzed whether the officers had reason to believe their acts were
prohibited by asking if those acts were obvious violations of the statutory
right sued under, which was the Minnesota Human Rights Act:


             Defendants are entitled to summary judgment on the basis
       of official immunity if there are no genuine issues of material
       fact tending to show defendants' felony stop of the Agunbiades
       constituted a willful or malicious violation of the Agunbiades'
       rights under Minn. Stat. § 363.03, subd. 4       [the Minnesota
       Human Rights Act].


Id.   Beaulieu thus gauged maliciousness by reference to the cause of action
alleged, not by some generalized standard that would apply to all causes
of action alike.       Accord Kalia v. St. Cloud State Univ., 539 N.W.2d 828,
832 (Minn. Ct. App. 1995) (malice exists if official "committed an act that
he    or   she   had   reason   to   believe   is   prohibited   by   statute   or   the
constitution").        Similarly, when we considered the issue of official
immunity for the common-law torts in Greiner, we asked whether the acts
alleged tended to prove knowing violations of the particular rights
plaintiffs asserted:


       As for Bruns' alleged comment, which he denies, it is evident
       that it does not have bearing on any claim of trespass,
       assault, battery, or false arrest.    The closer question is
       whether it tends to show malice with reference to intentional
       infliction of emotional distress.




                                          -5-
27 F.3d at 1355.


     Therefore, we have had no occasion to decide the precise question
that remains in this case--whether the facts tend to show Bruns should have
known he was violating Ott's rights under the Minnesota Human Rights Act.
Accordingly, we reject the officers' preclusion argument.


     The officers further argue that there are no genuine issues of fact
material to the official immunity question.     We have already pointed to
factual disputes about how long a time elapsed between Ott's request that
her shirt be put back in place and the time Officer Nozzarella put it back.
Id. at 1356.   The district court also held that there was a genuine factual
dispute about how close in time Ott's request was to her arrest.        The
officers make factual assertions that Bruns was occupied with other duties
that prevented him from replacing the shirt.   The alleged comment, "We are
all women here," certainly raises a jury question as to whether Bruns'
failure to act was a legitimate response to competing duties or a willful
act of gender discrimination.   In light of these factual disputes, summary
judgment would be inappropriate.


     We affirm the decision of the district court.


     A true copy.


           Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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