This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A24-1662 A24-1821 A24-1822 A24-1823 A24-1824
In re Defense and Indemnification of Matthew Severance - Awaijane et al. v. Bittell et al.,
In re Defense and Indemnification of Kristopher Dauble,
In re Defense and Indemnification of Andrew Bittell,
In re Defense and Indemnification of Christopher Cushenbery,
In re Defense and Indemnification of Ronald Stenerson.
Filed October 27, 2025 Affirmed; motion granted Bentley, Judge
City of Minneapolis
Francis J. Rondoni, Gary K. Luloff, Andrew C. Case, Chestnut Cambronne PA, Minneapolis, Minnesota (for relator Matthew Severance)
Joseph A. Kelly, Kevin M. Beck, Rebecca L. Duren, Kelly & Lemmons, P.A., St. Paul, Minnesota (for relators Kristopher Dauble, Andrew Bittell, Christopher Cushenbery, and Ronald Stenerson)
Kristyn Anderson, Minneapolis City Attorney, Munazza Humayun, Adam E. Szymanski, Assistant City Attorneys, Minneapolis, Minnesota (for respondent City of Minneapolis) Considered and decided by Larson, Presiding Judge; Bentley, Judge; and Kirk,
Judge. ∗
NONPRECEDENTIAL OPINION
BENTLEY, Judge
In these consolidated certiorari appeals, relators Matthew Severance, Andrew
Bittell, Christopher Cushenbery, Kristopher Dauble, and Ronald Stenerson challenge
decisions by respondent City of Minneapolis denying their requests for defense and
indemnification. Relators requested defense and indemnification in relation to a federal
lawsuit alleging that relators, who were employed by the city as police officers, used
unreasonable force while patrolling city streets during a citywide curfew imposed after the
murder of George Floyd. The city denied relators’ requests for defense and indemnification
after determining that they were “guilty of malfeasance in office, willful neglect of duty,
or bad faith.” Minn. Stat. § 466.07, subd. 1(2) (2024).
On appeal, relators argue that the city exceeded its authority in denying relators’
defense-and-indemnification requests, that the city’s decisions violated relators’
constitutional rights to due process and equal protection, and that the decisions are
unsupported by substantial evidence and are arbitrary. Severance brought a motion to
supplement the record for his appeal.
We construe the motion to supplement the record as a motion to complete the record,
and we grant the motion. We reject relators’ challenges to the city’s decisions based on the
∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
2 city exceeding its authority and violating relators’ constitutional rights because they are
foreclosed by our recent decision in In re Defense & Indemnification of Brown, ___
N.W.3d ___, 2025 WL 2901740 (Minn. App. Oct. 13, 2025), or they are otherwise
unavailing. And we conclude that the city’s decisions to deny relators defense and
indemnification are supported by substantial evidence and are not arbitrary.
We therefore affirm.
FACTS
Events Underlying the Federal Lawsuit
The city denied relators’ requests for defense and indemnification in relation to a
federal lawsuit stemming from events that occurred on May 30, 2020. The following
summary of those events is based on the administrative records for these appeals, which
include body-worn camera footage from several officers as well as the amended complaint
in the federal lawsuit. 1
On May 29, 2020, in response to the unrest following George Floyd’s murder four
days earlier, the governor issued an emergency executive order imposing a two-day curfew
for Minneapolis and St. Paul. The curfew prohibited “travel on any public street or in any
public place” from 8 p.m. to 6 a.m. A willful violation of the curfew was a misdemeanor
punishable “by a fine not to exceed $1,000 or by imprisonment for not more than 90 days.”
1 As we explain more fully in section II of the analysis, Severance brought a motion to supplement the record that the city transmitted in relation to his appeal. We construe that motion as a motion to complete the record and grant it. Our factual summary therefore includes facts based on materials that were the subject of Severance’s motion.
3 “[M]embers of the news media” were exempt from the curfew. The curfew was in effect
on the evening of May 30, 2020, when the following events took place.
Severance was acting as a supervisor for the Minneapolis Police Department (MPD)
and was responsible for directing “strike teams,” which were mobile units of officers being
deployed around the city to enforce the curfew. Among the team leaders under his direction
was Bittell, who was leading a chemical agent response team (CART)—CART 1281—that
included Cushenbery and Dauble. 2 As the team leader, Bittell was responsible for
“mak[ing] decisions for what might come up” in the field. CART 1281 was assigned to
work with Strike Team 5, which included Stenerson.
Around 10:40 p.m., at the intersection of Lake Street and Hiawatha Avenue in
Minneapolis, in the presence of multiple police officers, Severance gave the following
instructions:
So all’s we’re gonna do is take all of the strike teams and split ’em up. We’re gonna kinda stay together a little bit, but we’re gonna split up. Drive down Lake Street. You see a f--cking group, call it out. Okay, great. F--k ’em up. Gas ’em, f--k ’em up.
According to Bittell, Severance said at one point, “I want to f--k ’em up,” which Bittell
took to mean that the strike teams should use force to disperse any crowds they saw. These
instructions were separate from what Severance on appeal characterizes as his “official
directive.” In the official directive, which was aired over the radio, Severance instructed
strike teams to “get mobile,” “split up,” and “disrupt[] groups.” Severance further
2 A CART consists of officers who are specially trained and carry chemical munitions for riot control.
4 instructed, “Any large group[,] I want you to air their location and we’re gonna disrupt this
group.”
After receiving these directions from Severance, Bittell told the officers in
CART 1281, including Cushenbery and Dauble, “Alright, we’re rolling down Lake Street.
The first f--kers we see, we’re just hammering ’em with 40s.” Another officer replied,
“Yes, sir!” To confirm, Bittell asked, “Is that a good copy?” When another officer asked
what they were doing with the people on Lake Street, Bittell replied, “Shooting ’em with
40s.” Bittell later conceded that he said, “something to the effect of, ‘Everybody on Lake
Street’s going to get a 40.’” 3
Afterward, CART 1281 headed down Lake Street in an unmarked van. Bittell rode
in the front passenger seat, where he had “a better bird’s-eye perspective of what was going
on,” could “point out” suspicious activity, and could “instruct” the other officers
accordingly. Cushenbery and Dauble rode in the back of the van with its sliding passenger-
side door open. As the van approached the intersection of Lake Street and 17th Avenue
South, Bittell noticed individuals standing outside in a gas station parking lot and instructed
the driving officer to drive toward the gas station.
As the van was pulling up to the parking lot, Bittell instructed the officers, “Let ’em
have it boys, let ’em have it!” At least one 40mm shot was fired before Bittell finished
3 “40s” refer to 40mm less-lethal munitions, which fire potentially lethal projectiles to “disperse people or meet threats by causing pain and fear in the target,” according to Bittell’s testimony in a criminal case stemming from another incident on May 30, 2020. A partial transcript of Bittell’s testimony is included in the records for all but Stenerson’s appeal and includes Bittell’s concession described above.
5 giving these instructions, and the officers fired more shots from the van over the next few
seconds. Only after multiple shots were fired did an officer yell at the individuals in the
parking lot to “get outta here.”
A few seconds later, as the van came to a stop, Bittell again instructed the officers,
“Get ’em, get ’em, get ’em. Hit ’em, hit ’em.” Bittell’s body-worn camera footage shows
multiple officers already at the scene as he exited the van and eventually approached the
gas station. As the other CART 1281 officers headed toward the gas station, the individuals
at the gas station can be heard on body-worn camera footage saying that the gas station’s
owner was with them and that they were “guarding the store.” The CART 1281 officers
instructed the individuals to go inside the gas station and returned to the van.
Around the same time that CART 1281 arrived at the gas station, Stenerson arrived
with Strike Team 5 and received orders to “clear th[e] . . . lot out.” Stenerson, who had a
gas mask on, began walking around the gas station with a can of chemical irritant and a
baton. At some point, Stenerson walked by a journalist who was lying face down on the
ground holding up his press identification card. The journalist told Stenerson, “I am press,”
as Stenerson walked by. Stenerson sprayed the chemical irritant on the journalist’s face.
The journalist’s recording device captured the journalist saying, “I was just sprayed in the
face with pepper spray,” as Stenerson walked away. Stenerson was later investigated by
the city’s Office of Police Conduct Review (OPCR) in connection with this incident. When
providing his statement as part of the investigation, Stenerson said that he “maced everyone
[he] encountered,” including “a person that came up to [him]” with “his hands up.” MPD
6 terminated his employment after a review panel concluded that Stenerson had “deliberately
acted in an unprofessional manner during his duty” and violated MPD policies.
The Federal Lawsuit and Requests for Defense and Indemnification
In September 2023, six individuals who were present at the gas station during the
May 30, 2020 events (the plaintiffs) sued relators and the city in federal court under
42 U.S.C. § 1983 (2018), asserting violations of their constitutional rights. The plaintiffs
alleged that they suffered physical, mental, and emotional injuries from relators’ use of
force that evening, including Stenerson’s use of chemical agents, Cushenbery’s and
Dauble’s use of 40mm munitions, and Severance’s and Bittell’s reckless and indifferent
instructions.
In October 2023, the city sent relators preliminary letters referencing the name and
file number of the federal lawsuit and stating that the city had not yet accepted defense and
indemnification of the claims. In accordance with its defense-and-indemnification policy,
the city provided relators with “an opportunity to submit evidence and argument in support
of any request for defense and indemnification” within 30 days. Attached to the letter was
a copy of the city’s defense-and-indemnification policy and procedures. The city’s policy
states:
Pursuant to the terms of Minn. Stat. § 466.07, subject to the limitations in section 466.04, the City will defend and indemnify any of its officers and employees . . . for damages, including punitive damages, claimed or levied against the officer or employee, provided that the officer or employee: (1) was acting in the performance of the duties of the position; and (2) was not guilty of malfeasance in office, willful neglect of duty, or bad faith.
7 Adopted in 2020, the city’s defense-and-indemnification procedures provide that
the city will notify the affected employee that the matter is under consideration if the city
does not immediately accept defense and indemnification. The employee then has at least
30 days to submit any relevant materials. Then, “no fewer than 7 days after the materials
are submitted,” “[t]he City Attorney or designee shall make a quasi-judicial determination
as to whether the City will defend and indemnify the employee.” That determination
shall be made in writing and shall include: a description of the employee’s notice and opportunity to submit evidence and argument in support of the request to defend; a statement of the documents and information considered; factual findings that support the determination; application of those factual findings to the prescribed legal standards according to applicable law and the City policy; and a binding decision regarding the request.
The employee is “provided with notice of the quasi-judicial determination and a copy of
any written decision.”
In December 2023, Bittel, Cushenbery, Dauble, and Stenerson each submitted a
memorandum to the city requesting defense and indemnification, identifying the standard
for indemnification under Minnesota Statutes section 466.07, subdivision 1 (2024), and
providing analysis as to why they were entitled to indemnification under the statute. On
April 15, 2024, Severance belatedly submitted a letter requesting defense and
indemnification, asserting without any additional explanation that the city was required to
grant his request because “the claims filed against [him] involve[d] allegations relating to
the performance of his duties as an officer for the [MPD],” and he was “not guilty of any
malfeasance while in office, willful neglect of duty or bad faith.” None of the relators
8 included any evidence with their submissions or identified any materials that the city
should consider.
In August and September 2024, the city issued its decisions denying relators’
requests for defense and indemnification. The city determined that relators engaged in
conduct that violated police department policies forbidding unreasonable force and were
therefore not entitled to defense and indemnification because they were “guilty of
malfeasance in office, willful neglect of duty, or bad faith.” Minn. Stat. § 466.07, subd. 1.
Relators appeal.
DECISION
Under Minnesota Statutes section 466.07, subdivision 1, “[a] municipality is
required to defend and indemnify its employee unless the municipality determines that the
employee was not acting in the performance of the duties of the employee’s position or
was guilty of malfeasance in office, willful neglect of duty, or bad faith.” Anzures v. Ward,
890 N.W.2d 127, 132 (Minn. App. 2017). “[A] quasi-judicial decision by a municipality
determining eligibility for defense and indemnification under section 466.07 may . . . be
appealed by writ of certiorari.” Reetz v. City of St. Paul, 956 N.W.2d 238, 244 (Minn.
2021). And an appellate court reviews such a decision to determine “whether it is ‘arbitrary,
oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any
evidence to support it.’” Id. (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.
1992)).
9 Relators make several arguments in seeking reversal of the city’s defense-and-
indemnification decisions. 4 In the following sections, we address the arguments in two
groups.
We first address relators’ arguments that the city exceeded its authority and violated
relators’ constitutional rights in deciding to deny them defense and indemnification. In a
recent precedential opinion, we addressed largely identical arguments raised by another
police officer to whom the city denied defense and indemnification. See Brown, 2025 WL
2901740, at *4-11. Alexander Vladimir Brown sought defense and indemnification in
relation to a lawsuit brought against him based on events that happened in August 2020.
Id. at *2. The city denied Brown’s request for defense and indemnification on the same
ground that it denied relators’ requests, determining that he had engaged in malfeasance,
willful neglect of duty, and/or bad faith. Id. at *3. Although their defense-and-
indemnification requests stem from different factual circumstances, Brown and the joint
relators are represented by the same counsel, who raised the same legal and constitutional
issues in both Brown and these appeals. Severance also raises many of the same arguments
in his appeal. For reasons explained in section I below, we are persuaded that relators’
assertions that the city exceeded its authority and violated their constitutional rights are
foreclosed by Brown or are otherwise unavailing.
4 In these consolidated appeals, Severance filed briefs individually; Bittell, Cushenbery, Dauble, and Stenerson filed briefs jointly. When necessary to distinguish their arguments, we refer to Severance by his surname and to Bittell, Cushenbery, Dauble, and Stenerson as “joint relators.” We use “relators” to refer collectively to Severance and the joint relators.
10 We then address relators’ arguments that the city’s decisions to deny them defense
and indemnification are unsupported by substantial evidence and are arbitrary. For reasons
explained in section II below, these arguments do not persuade us to reverse.
I
Turning to the issues that are common to Brown and these appeals, we address in
turn relators’ arguments that the city exceeded its authority and that it violated relators’
constitutional rights to procedural due process, substantive due process, and equal
protection of the law. 5
A
Relators make two arguments regarding the city’s authority. The first is aimed at
the city’s decision to change its defense-and-indemnification procedures in 2020. 6 As we
explained in Brown, challenges to the city’s decision to adopt the new procedures fall
outside the scope of our certiorari review of the city’s decisions to deny relators’ requests
for defense and indemnification. Id. at *4-5. Our certiorari jurisdiction “includes the
authority to review questions of law, including constitutional issues, arising from quasi-
judicial decisions.” Id. at *4. But it does not extend to challenges to the city’s quasi-
5 We note, as we did in Brown, that relators do “not argue that the analysis required under the United States and Minnesota Constitutions is different” with respect to the issues in these appeals. Brown, 2025 WL 2901740, at *7 n.5. In considering their constitutional arguments, “we therefore assume without deciding that the protections are the same under both constitutions.” Id. 6 Under the city’s former procedures, employees seeking defense and indemnification could seek a hearing before an administrative-law judge. Under the current policy, the city attorney makes the defense-and-indemnification decision on written submissions.
11 legislative “decision to make policy and procedural changes to its process for determining
whether to accept requests for defense and indemnification.” Id. at *5. We therefore
decline, as we did in Brown, to address relators’ arguments regarding the city’s decision to
change its defense and indemnification policy in 2020. See id. 7
Relators’ second argument stems from their assertion that the city’s defense-and-
indemnification policy is preempted by Minnesota Statutes section 466.07, subdivision 1.
Relators focus on language in the statute providing that a “municipality shall defend and
indemnify” its employees. Minn. Stat. § 466.07, subd. 1 (emphasis added). They also assert
that the statute’s silence on the decision-maker and procedure for deciding a defense-and-
indemnification request precluded the city from acting, as Severance puts it, as the
“designated decision-maker for determining whether an officer is ‘guilty of malfeasance in
office, willful neglect of duty, or bad faith.’” And relators assert that the city improperly
assigned them a burden of proof in contravention of the statute. We rejected these
arguments in Brown. 2025 WL 2901740, at *6. We reasoned that the plain and
unambiguous language of section 466.07, subdivision 1, does not preclude the city from
deciding a request for defense and indemnification or require the city to provide a particular
procedure for deciding the request. And we relied on prior precedential decisions that
recognized municipal authority to determine such requests. Id. (citing Reetz, 956 N.W.2d
at 244; Anzures, 890 N.W.2d at 132). We further noted that the statute does not assign a
7 To be clear, challenges to the city’s current procedures, as applied to relators, are within the scope of our review, and we address those challenges throughout this opinion.
12 burden of proof, and we rejected Brown’s assertion that the city’s procedure places the
burden of proof on the requesting officer. Id. at *6 & n.4. For the same reasons, we reject
relators’ preemption arguments here. 8
B
Relators assert that the city violated their procedural-due-process rights. The joint
relators also assert substantive-due-process violations. We considered the same procedural-
and substantive-due-process challenges in Brown and concluded that, on the facts of that
case, the city’s process did not violate Brown’s due-process rights. Id. at *7-10. Applying
the reasoning of Brown to the facts of these cases, we similarly conclude that the city did
not violate relators’ due process rights.
Determining whether there has been a violation of procedural-due-process rights
involves a two-step process. Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn.
2012). The court determines, first, whether the government has deprived a person of a
protected life, liberty, or property interest. Id. If not, there can be no due-process violation.
Id. If so, the court determines, second, “whether the procedures followed by the
government were constitutionally sufficient.” Id. (quotation omitted). This second
determination involves “weigh[ing] the Mathews factors to determine what type of process
8 Relators also seem to assert that the city’s defense-and-indemnification policy is contrary to section 466.07, subdivision 1, because the policy replaces the statutory term “shall” with “will.” But we understand the policy language to reflect the city’s recognition of its duty under subdivision 1; in other words, the city is saying that it “will” do what the legislature has directed that the city “shall” do.
13 is constitutionally due to a person deprived of such an interest.” Id. (citing Mathews v.
Eldridge, 424 U.S. 319, 335 (1976)).
The Mathews balancing test requires consideration of the following three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335.
In Brown, we assumed without deciding that Brown had a protected property
interest in defense and indemnification under section 466.07, subdivision 1, and we applied
the Mathews balancing test. Brown, 2025 WL 2901740, at *7-9; see also Mathews, 424
U.S. at 335. Under the first Mathews factor, we determined that Brown had an interest in
receiving defense and indemnification but reasoned that the interest was less significant
than a person’s interests in their livelihood or employment—two private interests which
courts have assigned significant weight. Brown, 2025 WL 2901740, at *7-8. We concluded
that the first Mathews factor “weigh[ed] in Brown’s favor” but did “not weigh heavily
because the city’s decision to deny his defense-and-indemnification request neither
deprive[d] him of his livelihood nor restrict[ed] his employment” as a police officer. Id.
at *8.
We next considered the second Mathews factor, which looks at the risk of
“‘erroneous deprivation of a protected interest’ and the likely benefit of ‘additional
safeguards.’” Id. (quoting Sawh, 823 N.W.2d at 634). As to this factor, we were mindful
14 of Brown’s position that the city did not provide him with meaningful notice or a
reasonable opportunity to be heard. Id. We acknowledged that the city did not disclose
what evidence it intended to rely on in deciding Brown’s defense-and-indemnification
request, identify which specific police department policies it believed he had violated or
which specific exception or exceptions under subdivision 1 of Minnesota Statutes section
466.07 it believed applied, or provide him an opportunity to present live testimony. Id. We
nevertheless concluded that the second Mathews factor weighed in favor of the city. Id. We
noted that the city’s initial letter to Brown referenced the underlying lawsuit, notified him
that it had not accepted defense and indemnification, and enclosed a copy of its defense-
and-indemnification policy and procedures, “which cite Minnesota Statutes section 466.07
and set forth the exceptions for malfeasance in office, willful neglect of duty, and bad faith
that are provided in subdivision 1.” Id. The second Mathews factor weighed in favor of the
city, we determined, because “the city at least provided Brown reasonable notice and a
reasonable opportunity to be heard.” Id. at *9. And we emphasized that Brown had
submitted written argument to the city in support of his request for defense and
indemnification and that his “written and oral appellate arguments have neither articulated
the probable value of substitute procedural safeguards nor pointed to any additional
evidence or argument that he was precluded from presenting because of the procedures that
the city used.” Id. We therefore concluded that, “whatever risk of erroneous deprivation”
there was, it was “mitigated by the lack of any probable value of additional or substitute
procedural safeguards.” Id.
15 We next concluded that the third Mathews factor favored the city. Id. We recognized
the city’s interests in ensuring the appropriate use of public funds and avoiding the expense
of providing additional process. Id. Having addressed each of the three Mathews factors,
we weighed them to conclude that the process afforded by the city was constitutionally
sufficient. Id.
Turning to the circumstances of these cases, we assume without deciding that
section 466.07, subdivision 1, creates a protected property interest, as we did in Brown,
and we thus analyze the Mathews factors.
On the first Mathews factor, we recognize relators’ interest in defense and
indemnification but contrast it with interests that have been recognized as weightier, as we
did in Brown. We conclude that the first Mathews factor favors relators but not to the same
degree as if it had precluded them from working as police officers. Id. at *8.
On the second Mathews factor, we acknowledge, as we did in Brown, the very
limited nature of the city’s process. But we consider that process in the context of the
arguments presented by relators. The joint relators do not reference, much less purport to
apply, the Mathews factors. Nor do they state what process they believe is constitutionally
required. Instead, they point to the process that the city employed under its former defense-
and-indemnification policy—a hearing before an ALJ—and assert that the “City
abandoned this constitutionally valid process.” That assertion—that the process provided
under the former policy was “constitutionally valid”—does not address whether the process
provided under the current policy is constitutionally inadequate. For his part, Severance
argues that “the City’s quasi-judicial procedure provokes an extraordinary risk of erroneous
16 deprivation,” but he does not explain what information or argument he was precluded from
submitting because of the city’s procedure. See Staeheli v. City of St. Paul, 732 N.W.2d
298, 305 (Minn. App. 2007) (noting the relator failed to show “that he was unable to present
material evidence or that the board was unable to thoroughly consider an important issue”).
Given the arguments presented by relators in this case, there is no demonstrable
difference in the process provided to relators and Brown. First, as in Brown, the city’s
initial letters to relators referenced the underlying litigation and attached the city’s defense-
and-indemnification policy and procedures. Second, the complaint in the litigation set forth
in detail the conduct that the relators are alleged to have engaged in on May 30, 2020.
Third, as we have explained, the relators fail to identify any evidence that they were
precluded from submitting or any argument that they were precluded from making because
of the procedure the city used. And fourth, we note that the events underlying the lawsuit
are depicted in footage from the body-worn cameras of several officers, and the city’s
decision did not turn on credibility determinations. Thus, in light of our recent decision in
Brown, we conclude that the second Mathews factor favors the city.
On the third Mathews factor, as we did in Brown, we recognize the city’s interests
in ensuring the proper use of public funds and in avoiding the expense of additional
procedures. The third factor thus favors the city.
In sum, we discern no distinguishing facts that would cause us to reach a different
conclusion on procedural due process in these appeals than we did in Brown. We conclude,
as we did in Brown, that the first Mathews factor favors relators but that the second and
third factors favor the city. We therefore conclude that the process afforded to relators was
17 constitutionally sufficient and that the city did not violate relators’ rights to procedural due
process.
We turn now to the joint relators’ assertion of substantive due-process violations.
“[T]he substantive component of the right to due process [protects] an individual from
certain arbitrary, wrongful government actions regardless of the fairness of the procedures
used to implement them.” State v. Hill, 871 N.W.2d 900, 906 (Minn. 2015) (quotation
omitted). “[S]ubstantive due process prevents the government from engaging in conduct
that shocks the conscience, or interferes with rights implicit in the concept of ordered
liberty.” Id. (citations and quotations omitted); see also County of Sacramento v. Lewis,
523 U.S. 833, 846 (1998) (emphasizing that “only the most egregious official conduct can
be said to be arbitrary in the constitutional sense” (quotation omitted)). Minnesota Supreme
Court precedent also “establishes that only the most extreme instances of governmental
misconduct can satisfy the exacting shocks-the-conscience standard, with these acts often
evincing deliberate and unjustifiable injurious intent.” Hill, 871 N.W.2d at 906 (quotations
omitted).
In Brown, we concluded that the city did not violate substantive due process. Brown,
2025 WL 2901740, at *10. We considered Brown’s arguments that the city’s decision
violated due process because it was not based on substantial evidence, did not give
appropriate weight to Brown’s evidence, and was arbitrary. Id. We rejected these
arguments based on our conclusions, later in the opinion, that the city’s decision was
supported by substantial evidence and was not arbitrary. Id.
18 The joint relators advance the same substantive-due-process claims as Brown, and
we reject them for the same reasons we rejected Brown’s arguments. As we explain in
section II, the city’s decisions are supported by substantial evidence and are not arbitrary.
It follows that the joint relators have not offered a reason to conclude that the city’s
decisions violated their substantive-due-process rights. 9
C
The United States and Minnesota Constitutions provide that no person shall be
denied equal protection of the laws. U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 2.
In other words, equal protection requires that “individuals who are similarly situated be
treated alike unless there is a sufficient basis for distinguishing among them.” Lundberg by
Lundberg v. Jeep Corp., 582 N.W.2d 268, 271 (Minn. App. 1998). Thus, in evaluating a
claimed equal-protection violation, the “threshold inquiry is whether the claimant is
similarly situated in all relevant respects to others whom the claimant contends are being
9 Even were we to conclude that the decisions lacked the support of substantial evidence or were arbitrary, that would not be dispositive of the substantive-due-process issue. See, e.g., Draper v. City of Festus, 782 F.3d 948, 953 (8th Cir. 2015) (“To be conscience shocking, the government action must be truly irrational, that is, something more than . . . arbitrary, capricious, or in violation of state law.” (Quotation omitted.)). And the city’s conduct in denying defense and indemnification is incomparable to conduct that has been determined to shock the conscience. See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (reversing conviction on substantive-due-process grounds when police unlawfully broke into defendant’s home, forcibly attempted to extract evidence from defendant’s mouth, and pumped defendant’s stomach against his will); Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1075-77 (11th Cir. 2000) (vacating dismissal of claim under 42 U.S.C. § 1983 for substantive-due-process violation based on allegations that teacher struck student’s face with a metal weight as punishment, resulting in student’s loss of an eye); see also Hill, 871 N.W.2d at 906-07 n.6 (discussing cases applying conscience-shocking test).
19 treated differently.” State v. Lee, 976 N.W.2d 120, 125-26 (Minn. 2022). To meet this
requirement, relators generally must “demonstrate that they are part of an ‘objectively
identifiable’ class that is treated differently than a similarly situated class.” Brown, 2025
WL 2901740, at *11 (quoting Forslund v. State, 924 N.W.2d 25, 35-36 (Minn. App.
2019)).
In Brown, we considered Brown’s argument that the city had provided defense and
indemnification to other police officers who he asserted were similarly situated. Id. But we
concluded that Brown had neither identified a discrete and identifiable group of which he
is a member nor asserted that he was a class of one. Id. We thus concluded that his equal-
protection claim failed on the threshold inquiry. Id.
Here, too, relators fail to identify an “objectively identifiable” class to which they
belong that was treated unequally. To support their equal-protection argument, relators rely
on a “non-exhaustive” list of 15 cases where the city defended and indemnified officers
against what relators characterize as “objectively more egregious allegations than those”
brought against relators. 10 But relators do not identify a discrete, identifiable class to which
they belong, nor have they shown that they are similarly situated in “all relevant respects”
to the officers who received defense and indemnification. Lee, 976 N.W.2d at 126. As
relators emphasize in other parts of their arguments, determining whether an officer used
10 The city points out that “[t]he plaintiffs in many of the cases that Relators cite never named an officer before the case settled, meaning that the City did not make a defense and indemnification decision.” While that may or may not be true, we proceed to analyze relators’ equal-protection challenge assuming the city ultimately decided to defend and indemnify the officers involved in those cases.
20 a reasonable level of force is a fact-intensive inquiry. See Graham v. Connor, 490 U.S.
386, 397 (1989) (explaining that “the question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation”). Thus, even if those officers who received
defense and indemnification used a similar level of force as relators, that level of force may
have been reasonable under the circumstances. For this reason, relators fail to satisfy the
threshold inquiry, and that failure defeats their equal-protection argument. Brown, 2025
WL 2901740, at *11.
II
We now turn to relators’ arguments that the city’s defense-and-indemnification
decisions are unsupported by substantial evidence and are arbitrary. As a threshold matter,
and to clarify the record upon which we conduct our review, we address Severance’s
motion to supplement the record.
During briefing, Severance moved to supplement the record for his appeal with two
transcripts of interviews he gave to the OPCR and a recording of dispatch audio that
includes what he characterizes as his “official directive” to strike teams on May 30, 2020.
To aid our consideration of this motion, we summarize the nature of a record in a certiorari
appeal and motions that may be brought in relation to that record.
“Certiorari is, by its nature, a review based solely upon the record.” Amdahl v.
Fillmore County, 258 N.W.2d 869, 874 (Minn. 1977). The rules of civil appellate
procedure provide that “[t]he documents filed in the trial court, the exhibits, and the
21 transcript of proceedings, if any, shall constitute the record on appeal in all cases.” Minn.
R. Civ. App. P. 110.01. And the rules define “trial court” to include an “agency whose
decision is sought to be reviewed.” Minn. R. Civ. App. P. 101.02, subd. 4; see also Minn.
R. Civ. App. P. 115.04 (incorporating the provisions of rule 110, to the extent possible, for
certiorari appeals). Consistent with these rules, we have said that an administrative record
for a certiorari appeal is “made up of documents submitted to the agency or considered by
the agency in reaching its decision.” In re Air Emissions Permit No. 13700345-101 for
PolyMet Mining, Inc., 943 N.W.2d 399, 406 (Minn. App. 2020), rev’d on other grounds,
955 N.W.2d 258 (Minn. 2021). But the appellate rules do not seamlessly translate to the
administrative context, particularly when there has not been a contested-case hearing.
Thus, we have also determined that pertinent documents that were “available” to a
decision-maker at the time of a challenged decision were part of the record on appeal. Trout
Unlimited, Inc. v. Minn. Dep’t of Agric., 528 N.W.2d 903, 908 (Minn. App. 1995), rev.
denied (Minn. Apr. 27, 1996).
Court rules and caselaw provide two mechanisms through which a party may seek
to include materials in the record that an agency has failed or refused to include. First, a
party may bring a motion to correct or complete the record under Minnesota Rule of Civil
Appellate Procedure 110.05. “A motion to correct or complete the record under
[rule] 110.05 is limited to documents that are ‘material to either party’ that were omitted
from the record ‘by error or accident, or . . . misstated in it.’” In re Issuance of Air
Emissions Permit No. 13700345-101 for PolyMet Mining, Inc., 955 N.W.2d 258, 264 n.2
22 (Minn. 2021) (quoting Minn. R. Civ. App. P. 110.05). 11 Second, a party may bring a motion
to supplement the record, which “seeks to add evidence to the record that the agency did
not consider but is ‘necessary for the court to conduct a substantial inquiry.’” Id.; see White
v. Minn. Dep’t of Nat. Res., 567 N.W.2d 724, 735 (Minn. App. 1997) (identifying
circumstances when courts may consider documents “outside the administrative record”).
For these appeals, the city compiled separate records for each of the relators. Each
of the records includes the amended complaint from the federal litigation, the governor’s
emergency executive order setting the citywide curfew, the individual relator’s request for
defense and indemnification, excerpts from the police department’s policy manual, and the
city’s defense-and-indemnification policy. But some of the records include additional
materials. Particularly pertinent here, the record for Stenerson’s appeal includes transcripts
from his OPCR interview.
By motion, Severance seeks to include in the record for his appeal transcripts of his
OPCR interviews regarding the events underlying the federal lawsuit and an audio
recording of directives he gave to strike teams on May 30, 2020. Severance fashions his
motion as one to supplement the record, but he effectively asserts that the transcripts and
11 Rule 110.05 requires that a request to complete or correct the record be made to the administrative decision-maker in the first instance. And we note that disputes over the record can often be resolved through communications between the parties without the need for court intervention. The record does not reflect that Severance asked the city to correct or supplement the record before seeking relief in this court, but the city’s opposition to Severance’s motion to supplement the record suggests that it would have denied such a request. Thus, while we emphasize that the proper procedure is to first seek correction from an administrative decision-maker, we exercise our discretion to consider Severance’s motion. See Minn. R. Civ. App. P. 102, 110.05.
23 audio recording should have been included in the record for his appeal. He argues that the
OPCR transcripts and audio recording were in the city’s possession when it made the
decision to deny his request for defense and indemnification; that the city included OPCR
transcripts in the appeal record for Stenerson while excluding his transcripts; and that, even
if the city did not rely on the OPCR transcripts and audio recording, it must have considered
them in reaching its decision.
We agree that the city should have included the OPCR transcripts and audio
recordings in the record for appeal. We note that the city appears to have compiled the
records for these appeals to include just those documents that it believed necessary to
support its decisions. But, as we note above, the record for an administrative appeal is not
so limited. See In re Air Emissions Permit No. 13700345-101 for PolyMet Mining, Inc.,
943 N.W.2d at 406-07; Trout Unlimited, Inc., 528 N.W.2d at 908. The city does not dispute
that Severance’s OPCR transcripts and the audio recording of his directives were available
to it when it made its decision to deny defense and indemnification to Severance, and the
materials are clearly pertinent to the city’s decision. The city’s choice to not rely on these
materials to support its decision does not exclude them from the record. Accordingly, we
construe Severance’s motion as one to complete the record, and we grant that motion. See
Minn. R. Civ. App. P. 110.05 (allowing motion to complete the record with documents
erroneously omitted). 12
12 Severance also argues that supplementation of the record is appropriate under the circumstances identified in White. Because we construe Severance’s motion to also seek completion of the record, we need not address his arguments under White.
24 B
Having determined the record on which to conduct our review, we next address
relators’ arguments that the city’s decisions are unsupported by substantial evidence. We
begin by setting forth our standard of review and the pertinent legal standards.
The city must support its quasi-judicial decisions with substantial evidence.
AFSCME, Council No. 14 v. County of Ramsey, 513 N.W.2d 257, 259 (Minn. App. 1994);
see also Dietz, 487 N.W.2d at 239 (allowing appellate review for whether an agency
decision is “without any evidence to support it” (quotation omitted)). Substantial evidence
is “1) such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion; 2) more than a scintilla of evidence; 3) more than some evidence; 4) more than
any evidence; and 5) evidence considered in its entirety.” AFSCME, 513 N.W.2d at 259
(quotation omitted). In engaging in this review, appellate courts must not “substitute [their]
own findings of fact for those of a city” nor “engage in a de novo review of conflicting
evidence.” Sawh, 823 N.W.2d at 635.
To evaluate the record support for the city’s decisions, we must consider the legal
standards governing those decisions. Under Minnesota Statutes section 466.07,
subdivision 1,
a municipality or an instrumentality of a municipality shall defend and indemnify any of its officers and employees, whether elective or appointive, for damages, including punitive damages, claimed or levied against the officer or employee, provided that the officer or employee: (1) was acting in the performance of the duties of the position; and (2) was not guilty of malfeasance in office, willful neglect of duty, or bad faith.
25 Under this standard, the city properly denied defense and indemnification if relators’
conduct underlying the federal lawsuit constituted malfeasance in office, willful neglect of
duty, or bad faith. We first address whether the record supports the city’s determinations
that relators willfully neglected their duties. And because we conclude that the record
supports those determinations, we do not reach the city’s determinations that relators also
were guilty of malfeasance and bad faith.
The phrase “willful neglect of duty” is not defined in Minnesota Statutes
section 466.07, subdivision 1, or related statutory provisions. See Minn. Stat. §§ 466.01-
.15 (2024). 13 Absent a statutory definition, we seek to discern the common meaning of the
phrase, and we may find guidance in dictionary definitions. See T.G.G. v. H.E.S., 946
N.W.2d 309, 315 (Minn. 2020). We may also rely on previous cases that have construed
the phrase. See, e.g., Phone Recovery Servs., LLC v. Qwest Corp., 919 N.W.2d 315, 320
(Minn. 2018) (relying on past case in defining statutory term).
The parties point us to In re Olson, wherein the supreme court defined “neglect of
duty” as “a careless or intentional failure to exercise due diligence in the performance of
an official duty.” 300 N.W. 398, 400 (Minn. 1941). This definition is consistent with
dictionary definitions of “neglect.” See, e.g., The American Heritage Dictionary of the
English Language 1179 (5th ed. 2018) (defining neglect to mean “[t]o fail to care for or
13 Minnesota Statutes section 466.07, subdivision 1, is part of the state’s municipal tort claims act, which provides that municipalities are liable for their torts, with certain exceptions. See Minn. Stat. §§ 466.02-.03. The act includes a definitions section, Minn. Stat. § 466.01, but does not define “willful neglect of duty” in that section or any other section.
26 attend to properly” and “[t]o fail to do or carry out, as through carelessness or oversight”).
But the statutory standard for denying defense and indemnification requires that there be a
“willful neglect of duty.” Minn. Stat. § 466.07, subd. 1 (emphasis added). “Willful neglect”
has been defined in the legal context as the “[i]ntentional or reckless failure to carry out a
legal duty.” Black’s Law Dictionary 1241 (12th ed. 2024). Synthesizing Olson’s definition
with the plain meaning of this statute, we conclude that officials willfully neglect their
duties when they intentionally or recklessly fail to exercise due diligence in the
performance of their official duties. With that definition in mind, we turn to evaluating
whether the city’s determinations that relators willfully neglected their duties are supported
by substantial evidence.
We first conclude that the city has adequately explained its reasons for denying
defense and indemnification to relators. The city found that, on the evening of May 30,
2020, Severance gave Bittell and other officers instructions authorizing the
“indiscriminate” and “excessive” use of force, including Severance’s instruction to “f--k
’em up, gas ’em, f--k ’em up.” They city also found that Bittell instructed CART 1281
upon arriving at the gas station to “[l]et ’em have it boys, let them have it!” And that Bittell
gave that instruction despite having “had no communication or interaction with the
Plaintiffs” in the federal lawsuit and “[in]sufficient time to observe what Plaintiffs were
doing.” The city also found that “[t]he available evidence does not show that Bittell could
have reasonably believed Plaintiffs were looting nor that he engaged in any due diligence
to determine that the shooting of 40-mms was reasonable under the circumstances.” The
city’s finding also included that Severance’s and Bittell’s instructions did not clarify that
27 they “meant anything other than authorization to use excessive physical force
indiscriminately against groups of people,” which made other officers’ indiscriminate use
of force foreseeable. And the city found that the directives to use indiscriminate and
excessive force violated police department policy, which “explicitly provides that
‘[s]upervisors are responsible for the behavior and actions of subordinates within their
immediate control.’” Therefore, the city concluded that Severance and Bittell’s conduct
constituted willful neglect of duty.
With respect to Cushenbery and Dauble, the city found that they shot 40mm
munitions from the van, which was about 30 feet from the individuals at the gas station,
without knowledge that such use of force was reasonable under the circumstances. The city
explained that, given “the distance between [the officers] and Plaintiffs” and “the absence
of any interaction or meaningful opportunity for observation,” the officers “could not have
known, when [they] began shooting, whether any of the people at the gas station were
exempt from curfew.” And the city found that “violation of the curfew was not an offense
serious enough to warrant this level of force.” Based on these findings, the city concluded
that Cushenbery’s and Dauble’s use of force also constituted willful neglect of duty.
Finally, as to Stenerson, the city found that he sprayed chemical irritant on at least
one journalist who was lying face down on the ground and identified himself as a member
of the press. The city found that the journalist was not “resisting arrest, trying to flee, or
engaging in any physical aggression,” which are the only circumstances under which police
department policies permit officers to use chemical irritant. The city noted Stenerson’s
concession that he “just maced whoever [he] came in . . . contact” with, without making
28 any attempts to determine whether the individuals he sprayed were exempt from curfew.
Based on these findings, the city concluded that Stenerson’s conduct constituted willful
neglect of duty.
Relators do not assert that any of the city’s findings about the events that occurred
on May 30, 2020, are unsupported by the record, and our own review of the record
persuades us that the findings have adequate evidentiary support. 14 But relators argue that
the force that they used on May 30, 2020, was reasonable under the circumstances and thus
that they did not violate police department policy or willfully neglect their duties. They
assert that the city failed to consider the context of the widespread unrest in the days after
the murder of George Floyd. In that context, the joint relators assert, a reasonable officer
was one “who had been working 20 hours per day, under extremely high stress due to
multiple instances of use of force against [Minneapolis police] officers, including shots
fired, [and who had been] watching the City fall to violent attacks by criminals.” Severance
also asserts that the city failed to consider the instructions he gave to officers on the street
in the context of his “official directive” made over dispatch radio and failed to take into
account his explanations in the OPCR interviews about why he used the words he used.
We are not persuaded that relators’ emphasis on these record materials renders the city’s
decision unsupported by substantial evidence.
14 Through the joint relators’ brief, Dauble maintains that he “does not recall deploying a 40mm round nor using any force during the incident.” Even so, the joint relators do not appear to challenge the sufficiency of the record’s support for the city’s finding that Dauble engaged in indiscriminate use of force.
29 Under our substantial-evidence review, we are not in a position to reweigh the
evidence to reach a different conclusion. See Staeheli, 732 N.W.2d at 312; see also Sawh,
823 N.W.2d at 635. There is evidence in the records for these appeals—in particular the
footage from multiple officers’ body-worn cameras—to support the city’s determinations
that relators ordered and used excessive and indiscriminate force in violation of the police
department’s policies and that, in doing so, relators intentionally or recklessly failed to
exercise due diligence in the performance of their official duties. Relators do not explain
how, even in the context of the extraordinary circumstances in May 2020, the
circumstances so clearly justified this indiscriminate use of force that they render the city’s
determinations unsupported. After all, the city was aware of the context and implicitly
determined that it did not justify relators’ conduct. Adhering to our standard of review,
which grants “[s]ubstantial judicial deference . . . to administrative fact-finding,” we do not
discern a basis on these records to upend the city’s determinations. Staeheli, 732 N.W.2d
at 310.
Stenerson separately argues that the city’s decision to deny him defense and
indemnification is not supported by substantial evidence because he asserts that he did not
spray chemical irritant at any of the plaintiffs in the federal lawsuit. We take no position
on whether that assertion may provide Stenerson a defense in the federal litigation; but the
standard for the city to deny defense and indemnification does not depend on the outcome
of the claims against Stenerson. See Minn. Stat. § 466.07, subd. 1. For purposes of our
certiorari review, we conclude that substantial evidence supports the city’s determination
30 that Stenerson willfully neglected his duties by using excessive and indiscriminate force at
the time of the events underlying the federal litigation.
In sum, the record supports the city’s determinations that relators used excessive
and indiscriminate force and thereby willfully neglected their duties. We therefore reject
relators’ arguments that the city’s decisions are unsupported by substantial evidence.
We lastly address relators’ arguments that the city’s decisions are arbitrary. An
administrative decision-maker engages in arbitrary decision-making when it (1) relies “on
factors which the legislature had not intended it to consider,” (2) “entirely fail[s] to
consider an important aspect of the problem,” (3) “offer[s] an explanation for the decision
that runs counter to the evidence,” or (4) reaches a decision that “is so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.” Minn.
Transitions Charter Sch. v. Comm’r of the Minn. Dep’t of Educ., 844 N.W.2d 223, 235
(Minn. App. 2014) (quoting Trout Unlimited, Inc., 528 N.W.2d at 907).
In arguing for reversal on the basis that the city’s decision is arbitrary, relators
primarily repackage arguments made in relation to other bases for reversal. The joint
relators assert that the city failed to consider an important aspect of the issue because it did
not investigate the allegations in the federal lawsuit, because relators’ use of force was
reasonable under the circumstances, and because other officers have been granted defense
and indemnification in cases involving 40mm munitions. Severance argues the city
imposed a burden on him to make a record and failed to support its decision with substantial
31 evidence. 15 We have concluded that the city did not assign a burden of proof on relators;
that the city’s procedure did not violate relators’ due-process rights; that substantial
evidence supports the city’s determinations that relators used excessive and indiscriminate
force; and that relators have not established an equal-protection violation. And we are not
persuaded that the city failed to consider any important aspect of the issue or otherwise
acted arbitrarily. We therefore conclude that relators have not established that the city’s
determinations were arbitrary.
Affirmed; motion granted.
15 Severance also challenges as arbitrary the city’s alternative basis for denying his request for defense and indemnification: that he failed to comply with the city’s procedure. Because we affirm the city’s denial of defense and indemnification on substantive grounds, we need not reach Severance’s arguments regarding the city’s alternative, procedural ground.