                 United States Court of Appeals
                              For the Eighth Circuit


                                   No. 12-2813



                              Brian Thorvald Ulrich

                                       Plaintiff - Appellant

                                        v.

     Pope County; Deputy Gilbert Mitchell; and Deputy Eric Thesing, in their
                      Individual and Official Capacities

                                       Defendants - Appellants


                     Appeal from United States District Court
                          for the District of Minnesota


                           Submitted: March 14, 2013
                              Filed: May 21, 2013


Before WOLLMAN and COLLOTON, Circuit Judges, and HOLMES,1 District
Judge.


HOLMES, District Judge.




      1
      The Honorable P.K. Holmes, III, Chief Judge, United States District Court for
the Western District of Arkansas, sitting by designation.
      Brian Thorvald Ulrich appeals the judgment of the district court2 dismissing his
case with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). We affirm.

                                          I.

       On May 27, 2011, Ulrich and his wife attended the high school graduation
ceremony of MaKenzie Ronning, the daughter of Ulrich’s former girlfriend, Kristen
Mohs (formerly Kristen Crane). At the time of the graduation, there was a valid
harassment restraining order (HRO) in effect which provided that Ulrich “shall not
harass” and “shall have no contact with” Mohs or her three children, including
Ronning.3 The HRO did not specify that Ulrich was required to maintain a particular
distance from Mohs or her children in order to be in compliance; instead, the order
provided more generally that a violation could occur through “[a]ny contact with
Petitioner [Mohs], direct or indirect[,] and including any minor children included in
this Order . . . .” The HRO also required Ulrich to “stay away from Petitioner [Mohs’]
place of employment located at Minnewaska School District . . . .” Ulrich admits that
he was aware of the existence and content of the HRO yet chose to attend Ronning’s
graduation.

       After Ulrich and his wife arrived at Ronning’s high school and seated
themselves in the gymnasium bleachers, an individual reported Ulrich’s presence to
the police. In response to the report, Deputy Gilbert Mitchell arrived at the school and
asked Ulrich to speak with him in the hallway. During questioning, Ulrich expressed
his belief that he had not violated the HRO. First, Ulrich felt he had not violated the

      2
         The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      3
         The HRO was entered on October 21, 2009, and was set to expire two years
later, on October 21, 2011. Just prior to the graduation ceremony, Ulrich moved the
state court to change the order and remove the children from its protection. That
motion was denied on April 27, 2011.

                                          -2-
indirect-contact provision of the HRO because he had not yet seen Mohs or Ronning
while in the gymnasium and was not planning to make contact with them during the
ceremony. Second, Ulrich was convinced that his presence on school property did not
violate the HRO’s place-of-employment provision because Mohs was no longer
employed by the Minnewaska School District.

       Deputy Eric Thesing then arrived on the scene and soon after obtained a copy
of the HRO. Thesing spoke with Mohs in the gymnasium, and she confirmed that she
had not had any contact with Ulrich and no longer worked for the Minnewaska School
District. Nevertheless, Mohs expressed her wish that Ulrich be arrested for violating
the HRO. Thesing then returned to Ulrich and stated that even though Ulrich was
“technically correct” that he had not violated the HRO, Ulrich still needed to leave the
building. Ulrich refused to leave and instead invited police to sit beside him and his
wife during the ceremony and watch them leave afterward to ensure that Ulrich made
no contact with Mohs or Ronning in violation of the HRO. The deputies declined
Ulrich’s offer and decided to arrest him when Ulrich told the deputies again he would
not leave the building. He was charged with “Violation of Restraining Order,” which
is a misdemeanor under Minnesota law. Minn. Stat. Ann. § 609.748 Subd. 6 (2012).
Ulrich was detained at the Douglas County Jail for approximately 90 hours following
his arrest.

        On January 19, 2012, Ulrich filed suit against Mitchell and Thesing, in both
their individual and official capacities, and against Pope County, Minnesota. As to
the arresting deputies, Ulrich made claims pursuant to 42 U.S.C. § 1983 for arresting
him without probable cause in violation of the Fourth Amendment and for preventing
him from attending and participating in Ronning’s public high school graduation in
violation of the First Amendment. As to Pope County, Ulrich made a § 1983 claim
for failure to adequately supervise and train the County’s deputies and for developing
policies or customs that exhibited deliberate indifference to the constitutional rights
of citizens. Finally, as to all three defendants, Ulrich asserted a claim for false
imprisonment under Minnesota law.

                                          -3-
        The district court granted the Defendants’ motion to dismiss the case pursuant
to Federal Rule of Civil Procedure 12(b)(6). The district court determined that
Mitchell and Thesing were entitled to qualified immunity that shielded them from
liability for Ulrich’s § 1983 and constitutional claims. Ulrich’s § 1983 claim against
Pope County was also dismissed after the district court determined that Ulrich’s
constitutional rights had not been violated and that no facts had been alleged to
demonstrate a widespread policy or custom by the County to violate individuals’
constitutional rights. As for Ulrich’s state-law claim for false imprisonment, the
district court held that because Ulrich had failed to allege facts showing the deputies
had acted willfully or with malice, their decision to jail Ulrich following arrest was
protected from civil liability through official immunity, which also protected Pope
County by extension.

      After dismissal of all claims by the district court, Ulrich filed this appeal.

                                          II.

       We review de novo a district court’s decision to grant a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), and in doing so accept as true
a plaintiff’s well pleaded allegations. Parkhurst v. Tabor, 569 F.3d 861, 865 (8th Cir.
2009). “[D]ismissal is inappropriate unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.”
Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996) (internal quotation and citation
omitted).

                                          A.

       We first consider Mitchell and Thesing’s entitlement to qualified immunity for
the federal claims made against them. “[Q]ualified immunity is an affirmative defense

                                          -4-
[that] will be upheld on a 12(b)(6) motion only when the immunity is established on
the face of the complaint.” Weaver v. Clarke, 45 F.3d 1253, 1255 (8th Cir. 1995)
(internal citation omitted). “Qualified immunity shields a public official from suit for
civil damages when his ‘conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Bernini v.
City of St. Paul, 665 F.3d 997, 1002 (8th Cir. 2012) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). A police officer is therefore entitled to qualified immunity
unless the evidence establishes (1) that a plaintiff’s constitutional rights have been
violated, and (2) those rights were so clearly established at the time of the violation
that a reasonable officer would have known that his actions were unlawful. Id.

       Here, we conclude that Mitchell and Thesing are entitled to qualified immunity
on Ulrich’s Fourth Amendment claim.4 We find that the arresting deputies had at least
arguable probable cause to arrest Ulrich for the crime of knowingly violating a valid
restraining order, pursuant to Minn. Stat. Ann. § 609.748 Subd. 6 (2012).

      “A warrantless arrest is consistent with the Fourth Amendment if it is supported
by probable cause, and an officer is entitled to qualified immunity if there is at least
‘arguable probable cause.’” Borgman v. Kedley, 646 F.3d 518, 522-23 (8th Cir. 2011)


      4
         Ulrich’s brief on appeal did not include any meaningful argument regarding
his First Amendment claim separate from his Fourth Amendment claim. We decline,
therefore, to address this issue not properly raised on appeal. We note that because
we find that Mitchell and Thesing had arguable probable cause to arrest Ulrich for
violation of a restraining order—a misdemeanor offense under Minnesota law—the
deputies would likely also be immune from suit for a First Amendment violation. See
Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir. 2000) (stating that even a finding
that an arrest was pretext for an attempt to violate the plaintiff’s First Amendment
rights would not nullify a finding of probable cause nor would it prevent the
application of the qualified immunity defense). We make no such finding, however,
without having the benefit of a developed record on this issue on appeal. Instead, we
consider any claim of error as to Ulrich’s First Amendment claim to have been
abandoned.

                                          -5-
(quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)). Probable
cause to make a warrantless arrest exists “when the totality of the circumstances at the
time of the arrest are sufficient to lead a reasonable person to believe that the
defendant has committed or is committing an offense.” Id. (quotation omitted).
“Arguable probable cause exists even where an officer mistakenly arrests a suspect
believing it is based in probable cause if the mistake is ‘objectively reasonable.’” Id.
at 523 (quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008)). The probable
cause standard inherently allows room for reasonable mistakes by a reasonable person,
but the qualified immunity standard affords law enforcement officials an even wider
berth for mistaken judgments “by protecting all but the plainly incompetent or those
who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (internal
quotation omitted). We recognize this accommodation for reasonable error is
necessary “because officials should not err always on the side of caution because they
fear being sued.” Id.

      Notwithstanding the distinction between the two legal concepts, an analysis of
arguable probable cause necessarily includes consideration of probable cause. In
analyzing whether arguable probable cause exists in this case, we must determine
whether Mitchell and Thesing’s arrest of Ulrich was based on an objectively
reasonable—even if mistaken—belief that the arrest was based in probable cause.\

      Drawing inferences in favor of Ulrich, while viewing the facts from the
perspective of a reasonable officer, we conclude that the district court did not err in
finding that Mitchell and Thesing were entitled to qualified immunity on Ulrich’s
Fourth Amendment claim.

      The HRO specifically prohibited Ulrich from having either direct or indirect
contact with Ronning or her mother, Mohs. While it does not appear that the
Minnesota Supreme Court has defined “indirect contact” in this context, the
Minnesota Court of Appeals has held in several unpublished opinions that indirect

                                          -6-
contact can occur when a defendant knowingly comes in close proximity to a person
or persons protected by a court order. State v. Hazeman, 2002 WL 1050364 (Minn.
Ct. App. May 28, 2002) (unpublished) (knowingly driving near and parking in close
proximity to person protected by restraining order constitutes indirect contact in
violation of the order); Harju v. Fabian, 2006 WL 2255898 (Minn. Ct. App. Aug. 8,
2006) (unpublished) (offender’s mere presence on pediatric floor of a clinic violates
provision of conditional release prohibiting him from direct or indirect contact with
minors), review denied (Minn. Nov. 14, 2006); State v. George, 2011 WL 1743884
(Minn. Ct. App. May 9, 2011) (unpublished) (offender’s observation of granddaughter
from a distance without her knowledge violates provision of probation agreement
prohibiting direct or indirect contact).5

      In this case, Mitchell and Thesing questioned both Ulrich and Mohs and
reviewed a copy of the HRO before concluding that Ulrich was in violation of the
Order. Under Minnesota law, it is a misdemeanor offense to violate a restraining
order when the offender knows of the order. Minn. Stat. Ann. § 609.748 Subd. 6
(2012). There is no dispute in this case that Ulrich knew the HRO was in effect.
Ulrich admitted to police that he intentionally attended what was a relatively small
public event for the explicit purpose of seeing Ronning, and with the full knowledge
that Mohs would also likely be present. Given the current status of Minnesota law
regarding the meaning of “indirect contact,” it was objectively reasonable for Mitchell
and Thesing to believe that probable cause existed to arrest Ulrich for a violation of
the HRO through his intentional presence and conduct at the graduation ceremony.


      5
        Minnesota law specifies that unpublished cases do not have precedential value.
Minn. Stat. Ann. § 480A.08 Subd. 3(c) (2012). However, we have held that
“[d]ecisions of intermediate state appellate courts are persuasive authority that we
follow when they are the best evidence of what state law is.” Minn. Supply Co. v.
Raymond Corp., 472 F.3d 524, 534 (8th Cir. 2006). We find that the Minnesota
Supreme Court would likely decide in line with these unpublished cases and
accordingly acknowledge these cases as persuasive authority.

                                         -7-
We find, therefore, that the factual circumstances of this case gave rise to arguable
probable cause for Ulrich’s arrest.

       Finally, we address Ulrich’s argument regarding Thesing’s pre-arrest statement
that “technically” no violation of the HRO had yet occurred. Ulrich contends that
Thesing’s statement somehow negates the existence of arguable probable cause. First,
we are reluctant to rely on any statement by Thesing that may have been taken out of
the context of a broader interaction. We cannot know why Thesing made the
statement to Ulrich,6 and we cannot know what Thesing may have intended by it or
if he later changed his evaluation before arresting Ulrich. Second, the existence of
probable cause or arguable probable cause depends on the viewpoint of an objectively
reasonable officer, not the viewpoint of the particular arresting officer. Devenpeck v.
Alford, 543 U.S. 146, 153 (2004). Thesing’s pre-arrest statement does not, therefore,
alter our finding that the district court did not err in granting qualified immunity to
Mitchell and Thesing.

                                            B.

       We now turn to Pope County’s liability pursuant to § 1983 for its alleged failure
to adequately supervise and train the County’s deputies and for developing policies
or customs that exhibited deliberate indifference to the constitutional rights of citizens.
 “A municipality can be liable under § 1983 if an ‘action pursuant to official municipal
policy of some nature caused a constitutional tort.’” Bernini, 665 F.3d at 1007


      6
        It appears that in making this comment, Thesing may have been referring to
the provision of the HRO that required Ulrich to “stay away” from Mohs’ place of
employment, which was formerly the Minnewaska School District. Prior to Thesing
making this comment, Ulrich had informed him that Mohs was no longer employed
by the School District, a fact which Mohs subsequently confirmed. Based on the
current record, however, we cannot make any definitive finding about the meaning of
Thesing’s comment.

                                           -8-
(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). There must be
a causal connection between the municipal policy or custom and the alleged
constitutional deprivation in order to state a valid claim under § 1983. City of Canton
v. Harris, 489 U.S. 378, 385 (1989).

       To survive a motion to dismiss, a complaint must allege facts sufficient “to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Considering this pleading standard, in order to state a viable § 1983
claim against Pope County, Ulrich was required to plead facts sufficient to show that
(1) Pope County’s officer-training practices were inadequate; (2) Pope County was
deliberately indifferent to the rights of others in adopting these training practices, and
Pope County’s failure to train was a result of deliberate and conscious choices it
made; and (3) Pope County’s alleged training deficiencies caused Ulrich’s
constitutional deprivation. Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996)
(citing City of Canton, 489 U.S. at 389).

       Even assuming arguendo that Ulrich suffered a constitutional deprivation, we
agree with the district court that Ulrich alleged no facts in his complaint that would
demonstrate the existence of a policy or custom by Pope County that caused such
deprivation. Ulrich labels Pope County’s supervision and training practices as
“inadequate” but points to no facts to support this assertion other than the example of
his own arrest and detention. Generally, an isolated incident of alleged police
misconduct, such as Ulrich alleges occurred here, cannot, as a matter of law, establish
a municipal policy or custom creating liability under § 1983. Wedemeier v. City of
Ballwin, 931 F.2d 24, 26 (8th Cir. 1991). Ulrich further fails to provide facts in his
complaint to support his assertion that Pope County adopted deficient supervision and
training practices with deliberate indifference to the constitutional rights of others, and
that these training practices were the product of the County’s deliberate and conscious
choices. Accordingly, the district court’s dismissal of Ulrich’s § 1983 claim against
Pope County is affirmed.

                                           -9-
                                           C.

       The last issue Ulrich disputes on appeal is the district court’s dismissal of his
false imprisonment claim under Minnesota law. Ulrich maintains that the nature of
his conduct prior to and during arrest obligated police to merely issue him a citation
and release him, rather than incarcerate him in the county jail. To support his
argument, Ulrich relies on Minnesota Rule of Criminal Procedure 6.01, which
provides that an officer “who act[s] without a warrant must issue a citation and release
the defendant unless it reasonably appears: . . . (2) further criminal conduct will occur;
or (3) a substantial likelihood exists that the person will not respond to a citation.”

       The district court found that Mitchell, Thesing, and vicariously, Pope County,
were shielded from liability for Ulrich’s claim of false imprisonment due to the
application of common law official immunity. “Common law official immunity
generally applies to prevent a public official charged by law with duties which call for
the exercise of his judgment or discretion from being held personally liable to an
individual for damages.” Schroeder v. St. Louis County, 708 N.W.2d 497, 505 (Minn.
2006) (internal quotation omitted). Official immunity only applies when an officer
is charged with executing discretionary functions, as opposed to ministerial functions.
Id. “This immunity extends to shield governmental entities from vicarious liability
for an officer’s actions.” Loch v. City of Litchfield, 689 F.3d 961, 967 (8th Cir. 2012)
(citing Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998)).
Official immunity does not, however, shield police officers’ discretionary functions
when they are undertaken willfully or with malice. Id. Malice in this context “means
nothing more than the intentional doing of a wrongful act without legal justification
or excuse, or, otherwise stated, the willful violation of a known right.” Rico v. State,
472 N.W.2d 100, 107 (Minn. 1991) (quotation omitted).

      Ulrich contends that official immunity should not protect Mitchell and
Thesing’s decision to incarcerate Ulrich after arrest because (1) they were performing

                                          -10-
ministerial functions, rather than discretionary functions, and (2) they were acting
willfully or with malice.

       We affirm the district court’s finding that Mitchell and Thesing were
performing discretionary, rather than ministerial, functions when they determined that
Ulrich should be incarcerated following arrest. The nature of a discretionary duty is
that it involves “individual professional judgment that necessarily reflects the
professional goal and factors of a situation,” rather than “a specific duty arising from
fixed and designated facts.” Wiederholt, 581 N.W.2d at 315 (internal quotation
omitted). Mitchell and Thesing used their professional judgment in determining that
probable cause existed to arrest Ulrich. They further determined that the factors of the
situation warranted placing Ulrich in county jail rather than releasing him.

       We further affirm the district court’s finding that “[t]here are no facts alleged
in the Complaint that would suggest that Deputies Mitchell and Thesing acted
willfully or with malice.” Here, Mitchell and Thesing’s decision to place Ulrich in jail
following arrest comported with an objectively reasonable interpretation of Minnesota
Rule of Criminal Procedure 6.01, and thus, no malice may be inferred. Ulrich admits
in his brief on appeal that prior to his arrest, he informed deputies “that he was
positive that he was not violating any restraining order” and “intended to return to the
gymnasium.” Given these circumstances, a reasonable officer could have concluded
that Ulrich was likely to return to the graduation ceremony if released and that further
criminal conduct would occur.

       Accordingly, we conclude that Mitchell and Thesing, and by extension Pope
County, are entitled to official immunity on Ulrich’s false imprisonment claim, and
this claim was properly dismissed by the district court.

      The district court’s judgment is affirmed in all respects.
                           ______________________________


                                         -11-
