Troy Kenneth Scheffler, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0949

Troy Kenneth Scheffler,
Appellant,

vs.

Mark Joseph McDonough,
Respondent

Filed May 1, 2017
Affirmed
Worke, Judge

Anoka County District Court
File No. 02-CV-15-5963

Peter J. Nickitas, Minneapolis, Minnesota (for appellant)

Ryan M. Zipf, League of Minnesota Cities, St. Paul, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Jesson, Judge; and Smith, John,
Judge.*
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant argues that the district court abused its discretion by denying his petition
for a harassment restraining order (HRO) against respond ent, a retired police officer,

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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because the HRO statute has no exception for police officers, the underlying criminal
charges against appellant were dismissed and expunged, and appellant’s physical injuries
precluded denial of the petition. We affirm.
FACTS
On December 17, 2015, appellant Troy Kenneth Scheffler petitioned for a HRO
against respondent Mark Joseph McDonough, a now-retired police officer, alleging that on
July 10, 2014, McDonough assaulted him.1
At the hearing on the petition, Officer McDonough testified that in the early
morning hours of July 10, 2014, he wa s on duty as a police officer when he and several
other officers were dispatched to a disturba nce call . Officers were informed that there
might have been an altercation inside a car dealership or a possible prowler. As officers
investigated the interior of the dealership, Officer McDonough watched the perimeter from
inside his patrol car. Officer McDonough testified that Scheffler approached his patrol car
and startled him. Shortly before approaching Officer McDonough’s patrol car, Scheffler
had called 911 and complained that a police officer followed him and he wanted the officer
to leave. The 911 operator told Scheffler to approach the officer and say, “Hi, why are you
here,” if t hat was wh at he was wondering. Scheffler’s 911 call was connected when he
approached Officer McDonough and the following conversation was recorded.2
SCHEFFLER: Why are you here?
MCDONOUGH: What are you doing?
SCHEFFLER: Excuse me?

1 Scheffler alleged several instances of harassing conduct in his petition, but on appeal he
challenges only the district court’s conclusion regarding the July 10, 2014 incident.
2 This recitation is from a recording that is inaudible at times.

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MCDONOUGH: What are you doing?
SCHEFFLER: Going home or minding my own
business.
MCDONOUGH: You came up to me. What do you
want? Do you have an ID on you?
SCHEFFLER: Doesn’t matter.
MCDONOUGH: Okay, listen, there’s one or two
ways this is going to go. Which way do you want it to
go? Let me see your ID.
SCHEFFLER: Excuse me?
MCDONOUGH: Let me see your ID. Do you have
an ID on you?
SCHEFFLER: Am I breaking the law?
MCDONOUGH: You came up to me, didn’t you?
SCHEFFLER: I asked why you are here and
following me.
MCDONOUGH: I’m not following you anywhere.
SCHEFFLER: Why did you ask for my ID then?
MCDONOUGH: You came up to me.
SCHEFFLER: Who are you?
MCDONOUGH: I’m the police.
SCHEFFLER: I didn’t say that. What’s your
name?
MCDONOUGH: What’s your name?
SCHEFFLER: I don’t have to respond to that.
MCDONOUGH: Well, then get the f-ck out of here
then.
SCHEFFLER: Can I have a supervisor come out
please?
MCDONOUGH: Sure.
SCHEFFLER: Okay. Please.
MCDONOUGH: Sure.

Officer McDonough then attempted to handcuff Scheffler. During the recording, someone
can be heard saying, “Ouch,” and Officer McDonough can be heard saying, “Know your
name yet?” Officer McDonough testified that another officer had to assist him with
handcuffing Scheffler.

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Officer McDonough testified that he told Scheffl er to “get the f -ck out of here ”
because Scheffler was noncompliant and, in his experience, he had to use “colorful
language” at times in order to get an individual’s attention. Officer McDonough testified
that he did not know if Scheffler was involved in the disturbance call or if he had a weapon.
Officer McDonough testified that he handcuffed Scheffler for his safety because Scheffler
was intoxicated, belligerent, and possibly having a mental-health issue. Because Scheffler
resisted the officers’ efforts to handcuff him, he was ticketed for obstructing legal process.3
Scheffler testified that on July 10, 2014, he went for a bike ride because he was
unable to sleep despite taking a sleeping p ill. He testified that he had also taken other
medication that made him drowsy and slurred his speech. Scheffler testified that squad
cars passed him and one shined a light in his eyes. He testified that he called 911 because
the officers seemed interested in him.
Scheffler testified that he followed the 911 operator’s instructions when he
approached Officer McDonough’s squad car and asked him what he was doing there.
Scheffler testified that when he asked for McDonough’s supervisor, McDonough replied,
“I’m going to put you in handcuffs, put you in back of my squad car.” Scheffler testified
that Officer McDonough slammed him on the ground, said “[g]ive me your hand,” jumped
on top of him, kneed him in the temple, dragged him on the ground, pushed him against
the wheel well, and hit his head against the squad car while saying, “ [R]emember your
name?” Scheffler testified that another officer “cheer[ed]” McDonough on, saying, “Yeah,

3 The charges against Scheffler were later dismissed and a district court issued an order
granting Scheffler an expungement.

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yeah, you tell him your name. That ’s what you do to the police.” Scheffler testified that
he lost consciousness and woke up in the back of the officer’s squad car.
Scheffler’s medical records indicated erythema and swelling on his ears,
ecchymosis on his torso, erythema on his wrists, and abrasions on his legs. Scheffler
testified that his doctor told him that his reported symptoms were “concussion symptoms.”
The district court denied Scheffler’s HRO petition. After listening to the recording
of the 911 call, t he district court found that Scheffler soun ded intoxicated and that a
reasonable person could have concluded that he was impaired in some manner. The district
court also found that Scheffler indicated that he did not have to co operate with Officer
McDonough’s requests to leave or provide identification. Further, the district court found
that although Scheffler received physical injuries, it was unclear whether they were caused
by McDonough or Scheffler’s efforts to resist arres t. The district court concluded that
Scheffler failed to show that Officer McDonough was acting outside his capacity as a
police officer, under Minn. Stat. § 609.06 (2016), and that McDonough’s actions did not
constitute harassment under the statute. This appeal followed.
D E C I S I O N
“[T]he harassment laws place carefully limited restraints on individuals whose
conduct goes beyond an acceptable expression of outrage and civilized conduct, and
instead causes a substantial adverse effect on another ’s safety, security or privacy.” Kush
v. Mathison, 683 N.W. 2d 841, 846 (Minn. App. 2004) , review denied (Minn. Sept. 29,
2004). This court reviews a district court ’s decision to deny a HRO petition for an abuse
of discretion. Peterson v. Johnson, 755 N.W.2d 758, 761 (Minn. App. 2008). “A district

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court’s findings of fact will not be set aside unless clearly erroneous, and due regard is
given to the district court’ s opportunity to judge the credibility of witnesses.” Kush, 683
N.W.2d 843-44. In reviewing whether a district court abused its discretion, we may
consider the broader context in which the alleged harassment took place. See Witchell v.
Witchell, 606 N.W.2d 730, 732 (Minn. App. 2000). Whether the facts found by the district
court satisfy the ele ments of harassment is a question o f law that we review de novo.
Peterson, 755 N.W.2d at 761.
A district court may grant a petition for a HRO if it finds that there are reasonable
grounds to believe that a person has engaged in harassment. Minn. Stat. § 609.748, subd.
5(b)(3) (2016). “Harassment” includes:
a single incident of p hysical . . . assault, a single
incident of stalking . . . or repeated incidents of intrusive or
unwanted acts, words, or gestures that have a substantial
adverse effect or are in tended to have a substantial adverse
effect on the safety, security, or privacy of another . . . .

Id., subd. 1(a)(1) (2016). To obtain a HRO, the petitioner must prove: (1) “objectively
unreasonable conduct or int ent on the part of the harasser, ” and ( 2) “an objectively
reasonable belief on the part of the person subject to harassing conduct.” Dunham v. Roer,
708 N.W.2d 552, 567 (Minn. App. 2006), review denied (Minn. Mar. 28, 2006).
Scheffler first argues that the district court abused its discreti on by denying his
request for a HRO because the HRO statute has no exception for police officers.
A police officer may use reasonable force “upon or toward the person of another
without the other’s consent when” effecting a lawful arrest or when the police officer
reasonably believes that he is effecting a lawful arrest. Minn. Stat. § 609.06, subd. 1(1)(a).

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At the hearing, Officer McDonough presented a defense that he did not as sault Scheffler,
but instead used reasonable force in his duties as a police officer.
The broader context in which the a lleged harassment took place involves an
impaired individual approaching an on-duty police officer investigating a disturbance call
and asking him why he was there. See Witchell, 606 N.W.2d at 732. Scheffler startled
Officer McDonough who was in his patrol car responding to a disturbance call . Officer
McDonough did not know if Scheffler was involved in the disturbance call or if he had a
weapon. Officer McDonough asked Scheffler what he was doing a nd for identification.
When Scheffler refused to answer, Officer McDonough told him to leave the area. When
Scheffler indicated that he was not going to leave or provide identification, Officer
McDonough decided to handcuff Scheffler for his safety because Scheffler appeared to be
intoxicated, was belligerent, and was possibly experiencing a mental-health issue. After
Scheffler resisted the officers’ efforts to handcuff him, he was arrested for obstructing legal
process. The district court did not err i n concluding that Scheffler failed to show that
Officer McDonough was acting outside his capacity as a police officer, und er Minn. Stat.
§ 609.06.
Scheffler next argues that the district court erred as a matter of law in denying the
petition because the charges against him were dismissed and expunged with “no underlying
judicial finding of probable cause .” Scheffler claims that the expungement “ clear[ed] the
slate as though the underlying offense never occurred,” in which case, Officer McDonough
was not effecting a lawful arrest and was not authorized to use reasonable force.

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First, Scheffler relies on the expungement order. But the language in the
expungement order related to probable cau se was deleted in an amended expungement
order. It was appealed, and this court reversed and remanded because the district court
failed to consider certain factors before granting the request to modify the order . I t is
unclear at this point as to whether the disputed language regarding probable caus e will be
included in the expungement order.
Additionally, the sequence of events shows that Officer McDonough reasonably
believed that he wa s effecting a lawful arrest. See Minn. Stat. § 609.06, subd. 1 (1)(a)
(stating that a police office r is authorized to use reasonabl e force when the police officer
reasonably believes that he is effecting a lawful arrest).
An officer does not seize an individual when he simply talks to that person standing
in a public place. State v. Vohnoutka , 292 N.W.2d 756, 757 (Minn. 1980). In some
situations, police officers need to ask questions to sort out a situation to determine if anyone
should be arrested. State v. Walsh , 495 N.W.2d 602, 604-05 (Minn. 1993) (stating that
“on-the-scene” questioning, in which an officer is simply trying to sort out a confusing
situation, is not an in-custody situation). And briefly handcuffing or placing an individual
in the back of a squad car wh ile police sort out a scene and investigate does not per se
constitute an arrest. State v. Munson , 594 N.W.2d 128, 137 (Minn. 1999); Walsh, 495
N.W.2d at 605 (stating that h andcuffing, by itself, does not constitute an arrest). The
intentional act of resisting handcuffs constitutes obstruction of legal process. Minn. Stat.
§ 609.50, subd. 1(2) (2016); see State v. Occhino, 572 N.W.2d 316, 321 (Minn. App. 1997)

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(stating that defendant’s intentional physical resistance to lawful police order qualified as
obstruction of legal process), review denied (Minn. Jan. 28, 1998).
Officer McDonough was investigating a dis turbance call when Scheffler
approached him and startled him. Officer McDonough did not know if Scheffler was
involved in the disturbance or if he had a weapon. Officer McDonough determined it
necessary to question Scheffler to sort out the situation. Scheffler refused to tell Officer
McDonough why he approached him, show his ID, or leave. Officer McDonough decided
to handcuff Scheffler for his safety because Scheffler appeared intoxicated, was belligerent,
and was possibly having a mental-health issue. Officer McDonough did not arrest Scheffler
when he handcuffed him; Officer McDonough arrested Scheffler after Scheffler resisted
the handcuffs, which is obstruction of legal process. See Minn. Stat. § 609.50, subd. 1(2).
Moreover, even if Scheffler’s arrest was unlawful he had no right to resist because
“Minnesota law does not recognize [a] defendant’s asserted right to resist an unlawful
arrest or search.” State v. Wick, 331 N.W.2d 769, 771 (Minn. 1983); State v. Ingram, 570
N.W.2d 173, 178 (Minn. App. 1997) (stating that “[a] defendant may not resort to self-help
to resolve disputes concerning unreasonable . . . seizures”), review denied (Minn. Dec. 22,
1997). Therefore, even if the expungement order includes language that there was “no
underlying judicial finding of probable cause ,” Officer McDonough reasonably believed
that he was effecting a lawful arrest and was authorized to use reasonable force.
Finally, Scheffler argues that McDonough inflicted a physical assault upon him that
merits a HRO. But the statute does not mandate that a district court grant a HRO if it finds
that there are reasonable grounds to believe that a person physically assaulted another. See

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Minn. Stat. § 609.748, subds. 1(a)(1), 5(b)(3). The statutory language is permissive —a
district court “may” grant a petition for a HRO if the prerequisites for a HRO are present .
Id., subd. 5(b).
Further, the district court found that Scheffler’s injuries may have resulted from his
own actions in resisting arrest. B ased on the record, t he district court’s findings are not
clearly erroneous. Therefore, the district court did not abuse its discretion by denying
Scheffler’s petition for a HRO because Officer McDonough’s conduct did not go “beyond
an acceptable expression of outrage and civilized conduct.” See Kush, 683 N.W.2d at 846.
Affirmed.