stating, in a 42 U.S.C. § 1983 action, this Court may agree with appellant that an affidavit by the chief of police with no personal knowledge may not be proper, but interrogatories did support summary judgment
How later courts described this case
- stating, in a 42 U.S.C. § 1983 action, this Court may agree with appellant that an affidavit by the chief of police with no personal knowledge may not be proper, but interrogatories did support summary judgment
- holding there is no liability where a private citizen merely summons the police for assistance and does not specifically request the person be arrested or supply false information, or merely provides information to police and leaves the decision of whether to arrest to the officer’s judgment and discretion
- “[Where] [g]ross negligence is defined [by statute] as the want of slight care and diligence. . . . This court has construed gross negligence to mean no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically willful in its nature.” [Citation omitted; internal quotation marks omitted.]
Written by the judges who cited it.
The opinion
SANDSTROM, Justice,
dissenting.
When we consider the evidence and reasonable inferences in the light most favorable to Wishnatsky, as we must when summary judgment has been granted against him, this is a very troubling case. Wishnatsky, a citizen of North Dakota, was arrested while peaceably sitting in a lounge in the North Dakota State University Memorial Union during its regular hours. He was arrested for criminal trespass supposedly because he was not “privileged” to be there. Most North Dakotans would probably be shocked to be told they were not privileged to be peacefully in the public areas of a state university campus during reasonable hours. Indeed, the official mission statement of North Dakota State University, approved by the State Board of Higher Education on November 17, 1992, proclaims: “Accessible, responsive, and accountable to the people of the State, North Dakota State University fosters their economic prosperity and contributes to their overall quality of life.”
Consistent with the State Board of Higher Education policy, in his inaugural address, N.D.S.U.’s new president spoke of the “collaborative efforts between town and gown” and proclaimed:
“Through well qualified professionals who complete our academic programs, to more hardy potatoes, better coatings for airplanes, fine arts exhibitions and performances and athletic contests, NDSU serves as a cultural, educational and economic engine for the citizens we serve.”
Inaugural Address of President Thomas Plough, April 26,1996.
N.D.S.U. encourages the public to visit the Memorial Union, view art in the Gallery and in collections “exhibited throughout the Memorial Union,” and to make purchases in Varsity Mart, the university bookstore. Days and hours are publicly disseminated beyond the campus. See, e.g., http://www.ndsu.nodak.edu/ (via Internet).
Wishnatsky went to the office of the campus newspaper, located in Memorial Union, to find out why his advertisement had not been published. He clearly conveyed his purpose to the defendant Bergquist. Wish-natsky challenged the different treatment of his advertisement because of its message — a challenge supported by the recent United States Supreme Court decision in Capitol Sq. Review Bd. v. Pinette, — U.S. -, 115 S.Ct. 2440 , 132 L.Ed.2d 650 (1995) (public forums generally must be available on equal terms). Unhappy with Wishnatsky’s challenge, Bergquist demanded Wishnatsky leave, and then called the police. After Wishnatsky left, Bergquist made sure the officers knew where to find him.
In their discovery responses, the officers gave the university’s Loitering and Trespass Policy as their sole basis for responding. For demanding of Wishnatsky his name and other information, they again stated they were following the Loitering and Trespass Policy. Wishnatsky alleges, and we must take as true for this review, he was arrested for criminal trespass based on his noncompliance with the university policy.
Assuming the university policy was valid, by its own terms, it was not violated. The *405 “NDSU Loitering or Trespass Policy” provides:
“When a complaint is received that an individual has not indicated to building staff what business, if any, he/she intends to transact and the individual refuses to leave, officer (two whenever possible) will: [steps to be taken enumerated].”
The predicate to the policy actions is that the person has not indicated his business and (not or) refuses to leave. Wishnatsky had clearly indicated his business to Bergquist. If Bergquist falsely reported that Wishnat-sky had not stated his business, he is responsible for instigating a false arrest. If Bergquist told the officers, then they could not in good faith have relied on the university policy.
The majority then disingenuously states:
“On these undisputed facts, the officers could reasonably have believed that Wish-natsky refused to leave the student lounge designated for use by older-than-average students of the university after being advised he was not privileged to be there and being given notice that he was trespassing.”
(Emphasis added.) The statute, however, is not violated by the person being told he was not privileged, unless the person was in fact not privileged to be there. There is nothing empowering the officers to create a lack of privilege here, except the university policy, which was not violated.
North Dakota has a long tradition of allowing members of the public on its college and university campuses. Generally, North Dak-otans are privileged, on an equal basis, to be in the public areas of our campuses at times those areas are open to the public. See Comment: The University and the Public: The Bight of Access by Nonstudents to University Property, 54 Cal.L.Rev. 132, 166-67 (1966). Even without a trespass policy, the colleges and universities are entitled to deal with disruption of their reasonable functioning. See, e.g., N.D.C.C. §§ 12.1-08-01 (Physical obstruction of government function), and 12.1-08-02 (Preventing arrest or discharge of other duties). See also Arnold v. State, 853 S.W.2d 543, 545-46 (Tex.Cr.App.1993). Disruption, if indeed there was any in this case, may not be dealt with through the use of “unbridled” authority exercised by school officials on constitutionally protected speech. Smith v. Sheeter, 402 F.Supp. 624, 631 (S.D.Ohio 1975); See Grody v. Indiana, 257 Ind. 651 , 278 N.E.2d 280 , 282 (1972). The University regulation must be “a means narrowly tailored to achieve the desired objective.” Board of Trustees, S.U.N.Y. v. Fox, 492 U.S. 469, 480 , 109 S.Ct. 3028, 3035 , 106 L.Ed.2d 388 (1989). “The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.’ ” Grayned v. City of Rockford, 408 U.S. 104, 116 , 92 S.Ct. 2294, 2303 , 33 L.Ed.2d 222 (1972).
I would reverse and remand on the causes of action against Bergquist and the arresting officers in their individual capacities.