When a Private Person Sets the Police on You: Malicious Prosecution and the Instigation Element in Minnesota

Most people who come to me after a bogus criminal charge want to sue the neighbor, the ex, or the store manager who called the police. Their instinct is right. Their theory is usually wrong, because they think the tort punishes the phone call. It does not. Minnesota has been drawing this line since 1887, and the line is not between people who talked to law enforcement and people who did not. It is between people who handed the government a set of facts and let the government decide, and people who supplied the decision themselves.

That distinction decides these cases. It also cuts in a direction most clients do not expect: a complainant who tells the police everything he knows, including the parts that hurt him, is close to untouchable even if the charge collapses and even if he despised the accused. A complainant who edits the facts owns the entire prosecution — the arrest, the jail time, the lawyer’s fees, and punitive damages on top.

This article is about that element alone. The elements of the tort, favorable termination, abuse of process, and the federal § 1983 claim each belong to their own piece. Here I am answering one question: when is the private complainant the defendant?

The question is not who talked to the police. It is who supplied the decision.

Minnesota’s formulation is old, short, and has never been softened:

One who sets the machinery of the criminal law in motion, causes the “prosecution,” as that term is used in the law of malicious prosecution.

Eastman v. Leiser Co., 148 Minn. 96, 181 N.W. 109 (1921) (syllabus). The court repeated it in the body of the opinion when it held a Duluth garment store answerable for the arrest of an innocent domestic servant: “They set the machinery of the criminal law in motion. That constitutes prosecution.” Id. at 100. Twenty-six years later the court used the same image in Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947), holding that an allegation “that defendants procured the issuance of the warrant is a sufficient charge that they set in motion the machinery of the law against plaintiff.” 224 Minn. at 230.

Note what the phrase does and does not require. It does not require that the complainant be a witness. It does not require that he sign anything. It does not require that he be right. It requires that the criminal process moved because he moved it.

The mirror image was stated in Potter v. Gjertsen, 37 Minn. 386 (1887), and it is the cleanest statement of the defense in the Minnesota books:

Of course the complainant would not be liable if he did not procure the criminal process to issue; as, if he filed a complaint in a civil action, and the magistrate should thereupon, of his own suggestion, and without being moved to it by the complainant, issue criminal process on the complaint, the latter would not be liable, for the act would be that of the magistrate alone. But, if he procure the process to issue, he ought to be responsible for all the consequences, even though the facts stated in his complaint do not justify it.

Id. at 388. The act of the magistrate alone. That is the whole doctrine in six words, written before Minnesota had a court of appeals.

First question: was there a prosecution at all?

Instigation only matters if something was instituted, and a great many of these consultations die right here. Minnesota answered the threshold question in Stead-Bowers v. Langley, 636 N.W.2d 334 (Minn. Ct. App. 2001), which called it “an issue of first impression in Minnesota.” Id. at 339. A Greenwood city council member alleged that others on the council forged her signature on a reimbursement declaration and used the forgery to trigger a Hennepin County Sheriff’s Department investigation. The investigation found the claim lacking in factual support and closed. No charge. No arrest. The court of appeals affirmed dismissal under Rule 12:

We conclude that some formal legal action must be instituted. Actions such as a criminal charge or indictment would meet this requirement. The initiation of a criminal investigation alone without further proceedings falls short.

Id. at 341. The court took the line from the Restatement — criminal proceedings are instituted when process issues to bring the accused before a tribunal, when an indictment is returned or an information filed, or when the accused is lawfully arrested on a criminal charge, Restatement (Second) of Torts § 654 (1977) — and quoted the comment holding that submitting an affidavit for a warrant is not enough, because “[t]he proceedings are not instituted unless and until the warrant or summons is issued.” 636 N.W.2d at 340 (quoting § 654 cmt. d). The court’s own decision line is one sentence: “There must be the initiation of a formal criminal proceeding such as a charge or indictment in order to maintain a tort action.” Id. at 343.

So a neighbor who lies to the police, produces an investigation, and produces nothing else has not committed malicious prosecution in Minnesota, however deliberate the lie. What survives is a defamation claim, if the statement is provably false and published, and abuse of process if some process actually issued and was then misused.

What does it take to “instigate” a prosecution?

Two Minnesota cases mark the outer bounds. One says a defendant can instigate a prosecution he never put his name on. The other says a defendant who handed the authorities everything he had still instigated nothing.

In Smith v. Munch, 65 Minn. 256, 68 N.W. 19 (1896), a factory superintendent had a striking employee arrested. The formal disorderly-conduct complaint in police court was sworn out by a different person entirely — a boy who had been assaulted during the disturbance. The defendants argued there was “no evidence that defendant Munch caused, procured, or instigated the prosecution.” The court disagreed: “there was ample evidence to justify the jury in finding that the boy made the complaint at the instance of Munch.” Id. at 259. The signature on the complaint tells you almost nothing. The question is at whose instance it was made.

Running the other way, Cox v. Lauritsen, 126 Minn. 128, 147 N.W. 1093 (1914), holds that handing evidence to the authorities is not instigation even when a prosecution demonstrably follows from it. A Tyler banker hired the Thiel Detective Agency to build a criminal case against a rival physician and turned the results over to the post office inspector. The United States Attorney refused to charge on that evidence and ordered an independent investigation, which produced a different offense on different facts, and the district attorney charged that. The Minnesota Supreme Court was blunt about the causal chain:

That defendant, or those employed by him, called the attention of the postal authorities to the fact that plaintiff sent apiol globules through the mails, is unquestionable; and it is undoubtedly true that the investigation and proceedings instituted by the authorities followed as a consequence of such information. But this is not sufficient to make defendant liable in damages.

Id. at 131. The jury had returned $10,000 against the banker on a complaint seeking $30,200. Judgment notwithstanding the verdict for the defendant, affirmed, with $750.99 in costs taxed against the plaintiff. Id. at 128–29. Malice was not the problem — the court said the evidence of malice was “abundant.” The problem was that the banker did not cause the charge that was actually brought.

Minnesota has also decided that a complainant need not have seen anything himself. In Shafer v. Hertzig, 92 Minn. 171 (1904), a husband prosecuted a man for slandering his wife based entirely on what two other people told him. The court refused to treat the absence of first-hand knowledge as want of probable cause, and said why: “This would be the case if only witnesses to the substantive facts could make complaint.” Id. at 175. Requiring personal knowledge would shut down ordinary crime reporting, so Minnesota does not require it.

Does the officer’s or the prosecutor’s independent judgment break the chain?

Yes — when the judgment is genuinely independent, which means it was exercised on facts the complainant gave fully and fairly. That qualifier is where these cases are won and lost.

The rule side comes from Cox: a person who lays the facts before the proper official “is not liable in damages, if such official, acting exclusively upon his own judgment, institutes a criminal prosecution not justified by such facts.” 126 Minn. at 132. The modern application is Dunham v. Roer, 708 N.W.2d 552 (Minn. Ct. App. 2006), where a woman acquitted of violating a harassment restraining order sued the petitioner for malicious prosecution. The court of appeals affirmed summary judgment because “the action was initiated by the city prosecutor on the basis of an independent exercise of prosecutorial discretion,” and because “[a]ppellant did not produce evidence that the prosecutor was controlled by respondent and failed to exercise independent discretion.” Id. at 570. Acquittal did not save the claim. Neither did the plaintiff’s argument that the petitioner had “improperly persuaded” the city prosecutor to file the charges; argument is not evidence. Id.

Now the other side of it. In Eastman, the county attorney personally prepared the complaint after conferring with the store manager and a police officer, and the police made the arrest. The store was still liable. The court disposed of the prosecutor’s involvement in a single sentence: “The advice of the county attorney was of no great importance, because it was based on the assertion that positive identification had been made.” 148 Minn. at 103. The saleswoman’s identification of an innocent woman rested on nothing but light hair, light complexion, shared nationality, and prior domestic service in the same household. A prosecutor’s judgment exercised on a false premise is not independent judgment. It is the complainant’s judgment wearing a badge.

Full and fair — the two words that decide most of these cases

Minnesota’s advice-of-counsel rule is stated more strongly than lawyers expect, and it is stated most strongly when the counsel is the prosecutor. From Jones v. Flaherty, 139 Minn. 97, 165 N.W. 963 (1917):

If, after such statement he is advised by the lawyer that prosecution will lie and he acts in good faith upon that advice, this is conclusive proof of probable cause and establishes a complete defense to the action for malicious prosecution. This rule applies with still greater reason when the lawyer, upon whose advice he relies, is a public prosecutor.

Id. at 99. Conclusive. Not evidence of probable cause — conclusive proof of it. Which is why the whole fight moves to the predicate, and the court said so in the next breath: “If he did, his defense is complete. If he did not, his defense collapses.” Id.

What counts as full and fair is demanding. The complainant must state “all facts known to him, and all facts of which, with reasonable diligence, he may obtain knowledge.” Id. The landlord in Jones described a wrecked rental house to the St. Paul city prosecutor, got told he had probable cause, signed the complaint, and lost, because the jury found the description exaggerated and found that some of the damage predated the tenancy and that the landlord “knew or could easily have ascertained this.” Id. at 99–100. The tenant was arrested at eight in the morning, locked up with other prisoners, taken to the county jail, searched, measured, and held past noon. The verdict was $1,125, remitted to $600.

The diligence half of that rule has its own line of authority. A complainant is charged on the probable-cause question with facts he would have learned by asking. Tabert v. Cooley, 46 Minn. 366 (1891), put it as facts “the defendant would or should have ascertained had he, before instituting the proceedings, made such inquiry and investigation as any man with honest motives, and not actuated by malice, would have made” — there, whether the man riding the disputed horse down a public street in daylight was hiding anything. Id. at 368. Boyd v. Mendenhall, 53 Minn. 274, 55 N.W. 45 (1893), applied it to a Duluth land company whose president had a crew arrested for cutting cedar off its section; the office that had sold them the stumpage — and could have confirmed the permit in a sentence — sat not more than a hundred feet from where he was standing when he decided to prosecute. Id. at 277–78. Boyd also states the advice-of-counsel defense in the form Minnesota still uses: it protects the complainant “only when given after a full statement of the facts and circumstances known to him, or of which he has been informed.” Id. at 278–79.

The Minnesota Supreme Court restated the same principle in the modern era in Allen v. Osco Drug, Inc., 265 N.W.2d 639 (Minn. 1978): “Failure to make an investigation of facts which are easy to verify, without further explanation, charges the prosecutor with those facts which he would have learned from the investigation.” Id. at 644.

Negligence is not enough, and Minnesota decided that on purpose

Every so often a client asks whether we can plead around malice by calling the accusation careless. We cannot, and the case that forecloses it has facts that explain why.

In Lundberg v. Scoggins, 335 N.W.2d 235 (Minn. 1983), a rape victim picked the plaintiff out of a live lineup and gave a formal statement of certainty. He was arrested. Blood and secretion grouping tests then established he could not have been the assailant, and the county attorney dismissed. He sued her for negligent accusation and misidentification. The Minnesota Supreme Court affirmed dismissal on the pleadings and gave the reason in plain terms:

Persons having knowledge of crimes, as a fundamental duty of citizenship, are encouraged, if not obligated, to report and assist in investigation and prosecution of these crimes. We take judicial notice of the fact that many persons are regrettably reluctant to “become involved” in the reporting and investigation of crimes. A threat of an action — which does not include an element of maliciousness — would serve to further discourage citizen participation in criminal investigations and prosecutions.

Id. at 236. There is no negligent-accusation tort in Minnesota. A complainant who is honestly, sincerely, catastrophically wrong owes the accused nothing. Malice is the price of admission, and it is a state of mind that has to be proved as a fact — though it may be inferred from want of probable cause, and in Osco Drug the act of signing the complaint after the police corroborated the accused’s story was enough by itself to establish both. 265 N.W.2d at 644.

Can you sue over a harassment restraining order or an order for protection?

You can plead it. You will almost certainly lose it, and Dunham v. Roer shows exactly why.

Dunham is the leading Minnesota decision on this question and it is routinely miscited. It did not hold that petitioning for a harassment restraining order is categorically immune from tort liability. The court took all three of the plaintiff’s theories seriously and killed each one on the elements:

1. The original 2001 petition. The district court granted the restraining order, and the court of appeals held that the order, standing alone and without other compelling evidence, foreclosed the claim: a petitioner who obtains the relief she asked for cannot have lacked probable cause to ask, and the proceeding did not terminate in the target’s favor. 708 N.W.2d at 569–70. The plaintiff also could not collaterally attack an order she never appealed.
2. The 2002 criminal charge for violating the order. Dismissed on independent prosecutorial discretion, discussed above, and on the absence of any admissible evidence of malice. Id. at 570.
3. The 2003 petition to extend the order. The plaintiff had won the appeal from that extension — this court reversed it in Roer v. Dunham, 682 N.W.2d 179 (Minn. Ct. App. 2004), because a single incident cannot support a new order where the statute requires repeated incidents. Not enough. Winning the appeal “does not establish that respondent lacked probable cause to seek additional relief.” 708 N.W.2d at 571.

The abuse-of-process count failed for a separate reason: “Nothing in the record suggests that respondent used the harassment process to accomplish any result other than limiting appellant’s unwanted contacts and harassment described in the petition.” Id. at 572.

Read together, that is a roadmap rather than an immunity. A petition that is denied outright, filed on facts the petitioner knew to be false, with evidence of motive beyond the petitioner’s dislike of the respondent, is a claim that Dunham leaves open. A petition that issued — even one later reversed — is not. Anyone considering this should also understand what the harassment restraining order statute actually requires and how an OFP differs from an HRO, because the ex parte posture and the two-year duration change the damages picture considerably.

One live procedural trap. Since 2024 Minnesota’s citizen-participation statute is the Uniform Public Expression Protection Act, Minn. Stat. §§ 554.07–.19, which replaced the old anti-SLAPP chapter after the supreme court held its predecessor unconstitutional as applied to tort claims at law in Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623 (Minn. 2017). UPEPA reaches a “communication in a legislative, executive, judicial, administrative, or other governmental proceeding,” § 554.08(b)(1), and it carries a 60-day filing window, § 554.09, a stay of all other proceedings including discovery, § 554.10(a)(1), and mandatory costs and fees to a prevailing movant, § 554.16(1). It also carves out, in § 554.08(c)(9), causes of action “for or based on an antiharassment order or a sexual assault protection order under section 518B.01.” A practitioner suing over a restraining-order petition needs to work out on day one whether the carve-out applies, because guessing wrong costs a fee award. The UPEPA mechanics are their own subject.

Merchants and shoplifting: what section 629.366 actually protects

Minnesota does have a merchant-detention statute, and the number in circulation is correct — Minn. Stat. § 629.366, “Theft in business establishments; detaining suspects.” Its scope is narrower than store counsel usually claims.

Subdivision 1 lets a merchant or employee detain a person on “reasonable cause to believe” the person has taken or is taking an article of value without paying, with the intent to deprive or appropriate. The permitted purposes are enumerated: to require or verify identification, to ask about and receive unpurchased merchandise, “to inform a peace officer,” and “to institute criminal proceedings against the person.” § 629.366, subd. 1(b)(1)–(4). The detained person must be told promptly why, may not be subjected to unnecessary or unreasonable force or to interrogation against his will, and may not be held more than one hour unless the store is waiting to hand him to a peace officer or, for a minor, to a parent or guardian. § 629.366, subd. 1(c). If the detained person asks for an officer, the merchant “must notify a peace officer immediately.” § 629.366, subd. 1(d).

Subdivision 3 is the immunity, and it is worth reading in full because it is short:

No merchant, merchant’s employee, or peace officer is criminally or civilly liable for any action authorized under subdivision 1 or 2 if the arresting person’s action is based upon reasonable cause.

Two limits are built into that one sentence. The immunity runs only to conduct authorized by subdivisions 1 and 2 — the detention, and the officer’s warrantless arrest on the merchant’s charge — and only where there was reasonable cause. It is not a shield for a false report. It is not a shield for a complaint signed after the store learned the accusation was wrong. The court of appeals reads it the same way: the statute “creates a limited defense for merchants who detain a shoplifting suspect in accordance with its provisions,” and a store that made no qualifying detention takes nothing from it. Smits v. Wal-Mart Stores, Inc., 525 N.W.2d 554, 558 (Minn. Ct. App. 1994), review denied (Minn. Feb. 14, 1995). Wal-Mart lost the statute in Smits for the plainest possible reason: it “did not detain Smits to ascertain who he was or whether the camera was stolen.” Id. The statute has been on the books in some form since 1957, and it did no work at all in Allen v. Osco Drug — the 1978 decision does not so much as mention it, because nobody was detained. That is the point. Subdivision 3 protects the detention. It has nothing to say about the complaint that gets signed afterward, and in Osco Drug the complaint is what cost the retailer. There, a customer’s checkbook was stolen and roughly fifteen forged checks were passed. The store manager phoned her, was told the checkbook was stolen and given the name of the investigating detective in Austin, sent a form letter threatening prosecution anyway, and then went to the Rochester police to swear out complaints. Before he signed, the Rochester police told him the checkbook had in fact been stolen and that forged checks had been passed in Rochester. He signed anyway. The jury returned $1,500 compensatory, $8,000 punitive against Osco Drug, and $630 punitive against the manager personally, and the supreme court affirmed all of it.

Two consequences retailers underrate. First, the employer answers for the employee. Smith v. Munch supplied the rule — “a master is responsible for the torts of his servant done with a view to the furtherance of the master’s business, whether the same be done negligently or willfully, but within the scope of his agency,” and exceeding actual authority “does not alter the rule,” 65 Minn. at 261 — and Eastman called Munch “decisive” in applying it to a manager’s instigation of a prosecution, then extended it to a saleswoman acting under the manager’s authority even where the manager himself believed her identification. 148 Minn. at 100–01. Second, punitive damages are squarely in play in this tort, as Osco Drug proves.

Is a report to the police privileged?

Half of it is settled. Minnesota answered the qualified-privilege question in 1994 and has never reached the absolute one.

Start with what is settled. A police officer’s own written arrest report is absolutely privileged against a defamation claim. Carradine v. State, 511 N.W.2d 733, 736–37 (Minn. 1994). A statement is absolutely privileged if it was “(1) made by a judge, judicial officer, attorney, or witness; (2) made at a judicial or quasi-judicial proceeding; and (3) … relevant to the subject matter of the litigation,” and the privilege reaches statements published before the proceeding so long as they bear some relation to it. Mahoney & Hagberg v. Newgard, 729 N.W.2d 302, 306 (Minn. 2007). Absolute privilege also bars claims that merely relabel a defamation — where “the injury stemmed from and grew out of the defamation.” Id. at 309.

Minnesota has also answered the qualified-privilege half of the question, and lawyers miss the case. Smits v. Wal-Mart Stores, Inc., 525 N.W.2d 554 (Minn. Ct. App. 1994), review denied (Minn. Feb. 14, 1995), took up whether good-faith reports of suspected criminal activity to law enforcement are privileged, called it “a case of first impression in Minnesota,” and held that “a qualified privilege may exist when an individual makes a good faith report of suspected criminal activity to law enforcement officials.” Id. at 557. Note the condition attached in the next sentence: “Such a privilege applies, however, when communication is made with probable cause and for a proper purpose and occasion.” Id. Wal-Mart lost the privilege because its own investigation turned up nothing — no missing camera, no discarded packaging, no employee who had actually seen a taking — before its assistant manager told a 911 operator, “I just witnessed a shoplifter.” Id. at 556, 557. A store gets the privilege for the report it can back up, and not otherwise.

Now what is not settled: whether a private citizen’s complaint to the police is absolutely privileged. Every Minnesota absolute-privilege holding runs to an actor inside the machinery — a judge, a judicial officer, an attorney, a witness, or a public officer acting in the line of duty. None of them reaches the citizen standing at the front counter, and the supreme court’s own framework points away from extending it there. Absolute privilege is “confined within narrow limits,” and applies only where “the public interest served must be one of paramount importance, such that it is entitled to protection even at the expense of failing to compensate harm to the defamed person’s reputation.” Bol v. Cole, 561 N.W.2d 143, 149 (Minn. 1997). Bol refused to give absolute privilege to a private psychologist who released child-abuse reports to the child’s mother, and gave her a qualified privilege instead — which requires that the statement “be made upon a proper occasion, from a proper motive, and must be based upon reasonable or probable cause.” Id. (quoting Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256–57 (Minn. 1980)). The adjacent question whether Minnesota adopts Noerr-Pennington immunity for petitioning outside antitrust remains open too: Kellar v. VonHoltum called it “a question of first impression in Minnesota,” said the doctrine “could be invoked,” and then declined to adopt it. 568 N.W.2d 186, 193 (Minn. Ct. App. 1997). Anyone citing Kellar for petitioning immunity is citing a road the court did not take.

What I do about it: I plead the tort, not the speech. Osco Drug draws the distinction for me: “the present case does not involve protected speech but rather involves the action of having a complaint issue.” 265 N.W.2d at 646. The same opinion allows that “[h]ad Gintz merely reported his suspicions to the Rochester police, then any alleged defamation might have been privileged,” and adds, in a footnote that ought to be quoted in every one of these briefs, that “[a]ny ‘privilege’ to sign a criminal complaint must first depend on the existence of probable cause.” Id. at 646 & n.10.

That is the practical answer. A qualified privilege in defamation and the malicious prosecution tort demand the same predicate — reasonable or probable cause, Smits, 525 N.W.2d at 557 — so a plaintiff who can prove want of probable cause has already defeated the privilege, and a plaintiff who cannot has no tort claim either. Pleading the conduct rather than the words also avoids Newgard’s trap for claims that sound in defamation. When the words themselves are the injury, the defamation framework governs and the two-year limitation for “libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury” applies, Minn. Stat. § 541.07(1); when the process is the injury, it does not.

Which false-report statutes actually give you a civil claim

Three statutes come up. They do not work the same way, and the differences are worth memorizing.

Minn. Stat. § 609.505 makes it a misdemeanor to inform a law enforcement officer that a crime has been committed, or to give an on-duty peace officer information about the conduct of others, “knowing that it is false and intending that the officer shall act in reliance upon it.” A second or subsequent conviction is a gross misdemeanor. Subdivision 2 separately criminalizes knowingly false reports of police misconduct and directs restitution of investigation expenses, capped at $3,000. That is the entire remedial scheme. Section 609.505 creates no civil cause of action. Minnesota’s canon is explicit: “A statute does not give rise to a civil cause of action unless the language of the statute is explicit or it can be determined by clear implication.” Becker v. Mayo Foundation, 737 N.W.2d 200, 207 (Minn. 2007). And Becker itself reasoned from the legislature’s demonstrated habit of saying so when it means it — pointing to the adjacent reporting statutes, which do. 737 N.W.2d at 208.

Minn. Stat. § 260E.08(d) — child maltreatment reporting — is one of those:

Any person who knowingly or recklessly makes a false report under the provisions of this chapter shall be liable in a civil suit for any actual damages suffered by the person or persons so reported and for any punitive damages set by the court or jury, plus costs and reasonable attorney fees.

Note the standard: knowingly or recklessly. No cap on punitive damages. Costs and fees included. Its counterweight is § 260E.34(a)(1), which immunizes a voluntary or mandated reporter acting in good faith, and § 260E.34(e), which lets a court award fees to a reporter who prevails on that immunity.

Minn. Stat. § 626.557, subd. 6 does the same for vulnerable adults, on stricter terms: “A person or facility who intentionally makes a false report under the provisions of this section shall be liable in a civil suit for any actual damages suffered by the reported facility, person or persons and for punitive damages up to $10,000 and attorney fees.” Intentional only, and punitive damages capped at $10,000. Subdivision 5(a) grants the good-faith reporter immunity.

There is also a statutory-immunity lesson buried in Bol: immunity for a report runs only to a report made the way the statute says. The psychologist there was immune as to her reports to the sheriff, county attorney, and social workers, but not as to the copies she released to the child’s mother, because “subdivision 3 neither requires nor authorizes a person to report suspected abuse to a parent” and statutory immunity is construed narrowly. 561 N.W.2d at 147. A complainant who takes his accusation past the police and out into the world loses whatever protection the report itself carried — which is precisely what happened to the store manager in Osco Drug.

What I do with one of these cases

I start with the charging file, not the client’s account of the phone call. What I want is the officer’s narrative, the complaining witness statement, any signed complaint or statement of probable cause, the squad and body-worn video, and the prosecutor’s charging notes if they are obtainable. Then I compare what the complainant knew against what the complainant said. Everything in this tort lives in that gap.

If the gap is empty — if he told them what he knew, including the inconvenient parts, and the prosecutor charged anyway — I tell the client we do not have a case, and I tell him early, because Cox and Dunham will end it at summary judgment and he should not pay me to get there. If the gap is real, the case is usually strong, because the same evidence that proves want of probable cause tends to prove malice, tends to defeat any qualified privilege, and tends to support a punitive damages motion.

Two things I check every time. First, whether there was an arrest, a search, or a seizure, because the false arrest and probable cause analysis is different from this one and often stronger, and physical restraint may support a civil assault or battery count against a store’s loss-prevention staff. Second, whether the underlying case terminated in a way that will actually support the claim, because a continuance for dismissal or a negotiated plea to something can end the tort before it starts — see favorable termination, and settle that question before the criminal case is disposed of, not after.

One last point of doctrine, and I want to emphasize it. The supreme court said in Leiendecker that “[b]oth the probable cause and malice elements of a malicious prosecution claim are factual questions for the jury,” 895 N.W.2d at 634, while Osco Drug and the line behind it treat probable cause as a legal conclusion for the court where the facts are undisputed, 265 N.W.2d at 642–43. Chief Justice Gildea’s dissent in Leiendecker rested on exactly that point. Id. at 639 (Gildea, C.J., dissenting). The tension is real; the allocation question belongs to the elements of the tort, not to this article, but it changes how you brief a summary judgment motion and you should not walk into one without a position on it.

Madgett Law, LLC

Madgett Law, LLC represents people in Minnesota who were arrested or charged because someone lied to the police, and it represents businesses and individuals defending against these claims. That work includes obtaining the charging file and the underlying reports, evaluating the instigation and probable-cause elements before a complaint is drafted, pleading around the privilege and anti-SLAPP problems that sink these cases at the threshold, and pursuing punitive damages where the conduct supports them. If you were charged with something you did not do and you know who put the police onto you, call 612-470-6529 or send us a message.

Sources: Eastman v. Leiser Co., 148 Minn. 96 (1921) (syllabus point 1 and at 100: setting the machinery of the criminal law in motion constitutes prosecution; at 100–01: employer liability for manager and saleswoman; at 102: complainant charged with facts reasonable inquiry would have revealed; at 103: prosecutor’s advice of no importance where predicated on an asserted positive identification; Dibell, J., dissenting). Hoppe v. Klapperich, 224 Minn. 224, 28 N.W.2d 780 (1947), at 230 (procuring issuance of the warrant sets the machinery of the law in motion); at 241–42 (attorney’s liability where malice is coupled with want of probable cause). Potter v. Gjertsen, 37 Minn. 386 (1887), at 388 (no liability where the magistrate acts of his own suggestion; liability where the complainant procures the process). Smith v. Munch, 65 Minn. 256, 68 N.W. 19 (1896), at 259 (complaint made at the instance of the defendant; a prosecutor may act on communications from others he reasonably believes true); at 261 (a master is responsible for the torts of a servant done with a view to the furtherance of the master’s business) (the malicious prosecution count was reversed for want of proof of want of probable cause; the employer-liability holding rests on the false imprisonment count). Shafer v. Hertzig, 92 Minn. 171 (1904), at 175 (no requirement that the complainant witness the offense); reporter’s note in the Minnesota Reports gives the parallel citation as 99 N.W. 800, which conflicts with the 99 N.W. 796 cite used in Lundberg; the Minnesota Reports citation is used here. Cox v. Lauritsen, 126 Minn. 128, 147 N.W. 1093 (1914), at 130 (prosecution must be instituted at the defendant’s instigation); at 131 (information leading to a prosecution is not itself instigation); at 132 (no liability where the official acts exclusively on his own judgment). Jones v. Flaherty, 139 Minn. 97, 165 N.W. 963 (1917), at 98 (jury verdict of $1,125); at 99 (full and fair statement to counsel or a public prosecutor is conclusive proof of probable cause; defense collapses without it); at 99–100 (exaggerated statement; facts the complainant knew or could easily have ascertained); at 100 (damages excessive; remittitur to $600). Tabert v. Cooley, 46 Minn. 366 (1891), at 368 (facts an honest inquiry would have revealed). Boyd v. Mendenhall, 53 Minn. 274, 55 N.W. 45 (1893), at 277–78 (duty to inquire where inquiry is easy); at 278–79 (advice of counsel requires a full statement). Allen v. Osco Drug, Inc., 265 N.W.2d 639 (Minn. 1978), at 642 ($1,500 compensatory, $8,000 punitive against the corporation, $630 punitive against the manager); at 642–43 (probable cause as a legal conclusion on undisputed facts); at 644 (failure to investigate easily verified facts; signing the complaint after corroboration of the accused’s account shows both want of probable cause and malice); at 646 and n.10 (merely reporting suspicions may be privileged; any privilege to sign a criminal complaint depends on probable cause; the tort concerns the act of having a complaint issue, not protected speech). Lundberg v. Scoggins, 335 N.W.2d 235 (Minn. 1983), at 235–36 (no cause of action for negligent accusation and misidentification of a criminal suspect). Dunham v. Roer, 708 N.W.2d 552 (Minn. Ct. App. 2006), at 569–70 (restraining order that issued precludes a want-of-probable-cause showing; no favorable termination); at 570 (independent exercise of prosecutorial discretion; no evidence the prosecutor was controlled); at 571 (reversal of the extension order on appeal does not establish want of probable cause); at 572 (abuse of process). Roer v. Dunham, 682 N.W.2d 179, 182 (Minn. Ct. App. 2004) (single incident insufficient for a new restraining order). Kellar v. VonHoltum, 568 N.W.2d 186 (Minn. Ct. App. 1997), review denied (Minn. Oct. 31, 1997), at 192 (elements); at 193 (Noerr-Pennington a question of first impression, left open). Stead-Bowers v. Langley, 636 N.W.2d 334 (Minn. Ct. App. 2001), at 339 (issue of first impression); at 340 (quoting Restatement (Second) of Torts § 654 and cmt. d (1977)); at 341 (some formal legal action must be instituted; a criminal investigation alone falls short); at 343 (decision). Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623 (Minn. 2017), at 634 (three elements; probable cause and malice as jury questions); at 639 (Gildea, C.J., dissenting) (probable cause as a question of law on undisputed facts). Carradine v. State, 511 N.W.2d 733, 736–37 (Minn. 1994) (absolute privilege for an officer’s written arrest report; not for statements to the press that amplify or go beyond the report). Mahoney & Hagberg v. Newgard, 729 N.W.2d 302, 306, 309 (Minn. 2007) (three-part judicial-proceedings privilege; privilege extends to preliminary communications; bars claims sounding in defamation). Bol v. Cole, 561 N.W.2d 143, 147, 149 (Minn. 1997) (statutory reporting immunity construed narrowly and limited to reports the statute authorizes; absolute privilege confined within narrow limits and requires a public interest of paramount importance; qualified privilege requires a proper occasion, proper motive, and reasonable or probable cause). Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 256–57 (Minn. 1980) (qualified privilege standard, as quoted in Bol). Smits v. Wal-Mart Stores, Inc., 525 N.W.2d 554 (Minn. Ct. App. 1994), review denied (Minn. Feb. 14, 1995), at 557 (a qualified privilege may exist for a good-faith report of suspected criminal activity to law enforcement, but only where the communication is made with probable cause and for a proper purpose and occasion; privilege denied where the store’s own investigation substantiated nothing); at 558 (§ 629.366 creates a limited defense for merchants who detain a shoplifting suspect in accordance with its provisions; no protection where the store made no such detention; conveying information about suspected criminal activity is not false imprisonment absent directing or instigating the detention). Becker v. Mayo Foundation, 737 N.W.2d 200, 207–08 (Minn. 2007) (a statute creates a civil cause of action only where the language is explicit or clearly implied; the legislature creates civil liability expressly when it intends to). Minn. Stat. § 629.366, subd. 1(a)–(d) (reasonable-cause detention; enumerated purposes; prompt notice; one-hour limit; immediate notification on request), subd. 2 (warrantless arrest on a merchant’s charge), subd. 3 (immunity limited to action authorized under subdivisions 1 and 2 and to conduct based upon reasonable cause). Minn. Stat. § 609.505, subd. 1 (falsely reporting crime; misdemeanor, gross misdemeanor on a second or subsequent conviction), subd. 2(a)–(b) (false reports of police misconduct; restitution capped at $3,000). Minn. Stat. § 260E.08(d) (civil liability for a knowing or reckless false report; actual and punitive damages, costs, and fees); § 260E.34(a)(1), (e) (good-faith reporter immunity; fees to a prevailing reporter). Minn. Stat. § 626.557, subd. 5(a) (good-faith reporter immunity), subd. 6 (civil liability for an intentional false report; punitive damages up to $10,000 and attorney fees). Minn. Stat. § 554.07 (short title); § 554.08(b)(1) (scope; communication in a governmental proceeding), (c)(9) (exclusion for causes of action for or based on an antiharassment order or a sexual assault protection order under section 518B.01); § 554.09 (60-day motion window); § 554.10(a)(1) (stay); § 554.16(1) (the court “shall award” costs, fees, and expenses to a prevailing movant). Minn. Stat. § 541.07(1) (two-year limitation for libel and slander). 2024 Minn. Laws ch. 123, art. 18, § 16 (repealing Minn. Stat. 2022, §§ 554.01–.06).

This article is general legal information about Minnesota law. It is not legal advice, it does not create an attorney–client relationship, and it does not promise or imply any particular outcome. Every case turns on its own facts.