We review Doe's negligent-hiring claim and the applicability of statutory discretionary immunity considering two factually similar cases. See Fear v. Indep. Sch. Dist. 911, 634 N.W.2d 204, 212 (Minn.App. 2001), rev. denied (Minn. Dec. 11, 2001); Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 320 (Minn.App. 1997), aff'd in part, 582 N.W.2d 216 (Minn. 1998) (the supreme court did not review the issue of statutory discretionary immunity and negligent hiring when affirming in part). In Fear, this court addressed the application of statutory discretionary immunity to a negligent-hiring claim against a public school district.

Although a party generally may not appeal from an order denying a motion for summary judgment, "[a]n order denying an immunity defense is appealable as of right because immunity from suit is effectively lost if a case is erroneously permitted to go to trial." Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 314 (Minn. App. 1997), aff'd in part, 582 N.W.2d 216 (Minn. 1998).

” While this statute leaves us with more questions than it resolves, and precedent from the Minnesota courts analyzing the statute is lacking, it does seem in direct conflict with Rule 6.01, creating confusion as to the officers' statutory obligations under the circumstances. See Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 318 (Minn. Ct. App. 1997) (noting official immunity applies when the official demonstrates “that the right allegedly violated was not clearly established, that is, that there was no basis for knowing the conduct would violate the plaintiff's rights”). Rule 6.01 requires release on citation unless certain circumstances exist; section 629.36 seems to require a person be taken into immediate custody, at least for a brief period, by the peace officer.

And in contrast to their everyday meaning, these terms in this context do not require a showing of bad faith or animus on behalf of the actor. See Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 317 (Minn.Ct.App. 1997), aff'd in part, 582 N.W.2d 216 (Minn. 1998). The Minnesota Supreme Court has clarified that malice in this context “means nothing more than the intentional doing of a wrongful act without legal justification or excuse, or, otherwise stated, the willful violation of a known right.”

The court of appeals, by a divided panel, affirmed in part and reversed in part the denial of summary judgment. See Gleason v. Metropolitan Council Transit Operations, 563 N.W.2d 309, 321 (Minn.App. 1997), rev. granted (Minn., Aug. 5, 1997). The majority held that the statutory immunity granted to political subdivisions of the state by Minn.Stat. § 466.03, subd. 6 (1996) ("discretionary function immunity"), cannot be asserted as a defense to disability discrimination claims brought under the MHRA, Minn.Stat. ch. 363 (1996).

May 20, 1997). A district court's denial of an immunity defense is immediately appealable as of right. Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 314 (Minn.App. 1997), aff'd in part and remanded 582 N.W.2d 216, 221 (Minn. 1998).

We then apply a two-part inquiry to determine, first, "whether the conduct required the exercise of judgment and discretion and is therefore the type of conduct protected by official immunity"; and second, "whether the alleged acts, even though discretionary, were stripped of the immunity's protection because the official acted without legal reasonableness in violating a known right." Gleason v. MetropolitanCouncil Transit Operations, 563 N.W.2d 309, 315-16 (Minn.App. 1997) (citation omitted), aff'd in part, 582 N.W.2d 216 (Minn. 1998).

In other words, because "malice" in this context "does not refer to the question of whether [an] official was acting with animus," "an allegation of actual malice is not necessary." Gleason v. Metro. Transit Operations, 563 N.W.2d 309, 317 & n.3 (Minn. Ct. App. 1997). As such, "[w]hether an officer acted maliciously is usually a question of fact for the jury."

" Minn. Stat. § 466.03, subd. 6. "[D]ecisions involving supervision and retention of employees are discretionary acts entitled to statutory immunity." Gleason v. Metro. Council Transit Operations, 563 N.W.2d 309, 320 (Minn. Ct. App. 1997), aff'd in part, rev'd in part on other grounds, 582 N.W.2d 216 (Minn. 1998).

Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991) (citations and internal quotation marks omitted). Official immunity applies when the official demonstrates either "(1) that the conduct was 'objectively' legally reasonable, that is, legally justified under the circumstances; (2) that the conduct was 'subjectively' reasonable, that is, taken with subjective good faith; or (3) that the right allegedly violated was not clearly established ...." Gleason v. Metro. Council TransitOperations, 563 N.W.2d 309, 318 (Minn. Ct. App. 1997). Gary alleges that defendants committed assault and battery when (1) Christopherson restrained her against the wall and squeezed her arm for five to six minutes and (2) Kiritschenko "punched" her twice in the chest.