Wilson et al v. Lamp et al
Filing
16
MEMORANDUM OPINION AND ORDER granting in part, denying in part and reserving ruling on part of 6 MOTION to Dismiss for Failure to State a Claim filed by Jessica Dorhout-VanEngen and 12 MOTION to Dismiss for Failure to State a Claim filed by Scott Lamp, State of Iowa. See text of Order for details. Signed by Judge Mark W Bennett on 11/3/15. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
LEVI WILSON, individually, and M.W.,
By and through his next friend LEVI
WILSON,
No. C 15-4070-MWB
Plaintiffs,
vs.
SCOTT LAMP, in his individual and
official capacity, STATE OF IOWA,
JESSICA DORHOUT-VAN ENGEN, in
her individual and official capacity, and
JOHN DOE, in his individual and official
capacity,
MEMORANDUM OPINION AND
ORDER REGARDING
DEFENDANTS’ MOTIONS TO
DISMISS
Defendants.
___________________________
TABLE OF CONTENTS
I.
FACTUAL AND PROCEDURAL BACKGROUND .................................. 2
II.
ARGUMENTS OF THE PARTIES...................................................... 3
A.
Summary of the Plaintiffs’ Argument .......................................... 4
B.
Summary of the Defendants’ Argument ........................................ 6
III.
DISCUSSION................................................................................ 7
A.
Standard of Review for Motion to Dismiss .................................... 8
B.
Excessive Force in Violation of the Iowa Constitution .................... 10
C.
Excessive Force Pursuant to Section 1983................................... 11
D.
Qualified Immunity For Excessive Force .................................... 16
E.
Iowa Tort Claims Act ............................................................ 22
1.
Intentional infliction of emotional distress .......................... 24
2.
Negligence ................................................................. 25
3.
Invasion of privacy ....................................................... 26
IV.
CONCLUSION ............................................................................ 29
All but stated in the parties’ filings, the claims below stem from alleged police
misconduct arising from the plaintiffs’ act of driving while black. In the present case,
plaintiffs, Levi Wilson (“Wilson”) and his minor child, M.W., assert federal
constitutional claims for violation of their Fourth Amendment rights pursuant to 42
U.S.C. § 1983 and for violation of Iowa Constitution Article I § 8, the state constitutional
equivalent of the Fourth Amendment. Additionally, they assert the state tort claims of
intentional infliction of emotional distress, invasion of privacy, and negligence against
three state officials and the state of Iowa pursuant to the Iowa Tort Claims Act (“ITCA”).
The case is now before me on defendants’ Motions to Dismiss (docket nos. 6, 12).
I.
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs’ Petition (docket no. 3) was originally filed in Iowa District Court
for Woodbury County on August 5, 2015. This case was removed to federal court on
August 20, 2015, pursuant to 28 U.S.C. §§ 1331, 1367(a), 1441(a), and 1446 (docket
nos. 1, 2). Defendant Dorhout-Van Engen filed her Motion to Dismiss (docket no. 6)
on August 28, 2015. Defendants Lamp and the state of Iowa filed their Motion to Dismiss
(docket no. 12) on September 3, 2015.
The plaintiffs and defendants may use slightly different shades of adjectives to
describe the events that give rise to this action, but the facts are largely uncontested. On
September 23, 2014, three state law enforcement officials: Lamp, an Iowa Division of
Criminal Investigation agent; Dorhout-Van Engen, an Orange City police officer; and
another unnamed officer, were in pursuit of a suspect accused of stealing gasoline. The
suspect was described only as “dark skinned” by a convenience store clerk. However,
this suspect was later identified as David, the brother of Levi Wilson. The plaintiffs,
Wilson and his minor son, M.W., were pulled over by the three officers while driving
on a public highway in Orange City, Iowa.
2
The three state officials emerged from their unmarked vehicle with firearms drawn
and pointed at Wilson and M.W. and instructed Wilson, who was driving, to “Get the
fuck out of the car!” Dorhout-Van Engen and the unnamed officer were dressed in street
clothes. Wilson obeyed the commands of the law enforcement officers and exited his
vehicle without incident. Lamp then asked Wilson, “Are you David?” Wilson replied
that his name was not David and asked why he was being stopped. Lamp stated that a
clerk at a convenience store said that a dark skinned person drove off without paying for
gasoline. Wilson is dark skinned.
Dorhout-Van Engen then began to search Wilson’s person at Lamp’s instruction.
At this point, Dorhout-Van Engen and Lamp stopped pointing their firearms in the
direction of the plaintiffs, but the third, unnamed individual at the front of the vehicle
kept his firearm pointed in the direction of M.W. During this search, Dorhout-Van
Engen made an acknowledging comment to Wilson, “Hey Levi, how are you doing?”
apparently recognizing him. Dorhout-Van Engen then proceeded to search Wilson’s
vehicle.
According to the State Appeal Board Claim Form, filed by Wilson but
incorporated into the record by defendants (docket nos. 12-2, 12-3), the search included
the interior of Wilson’s pickup truck, the bed of the truck, which was covered by an
enclosed top and secured by a closed tailgate, and the underside of his truck. Consent
for these searches was neither requested nor granted. After concluding their search of
Wilson’s vehicle, the officers began pursuing a different vehicle that drove by on the
highway and stopped it.
II.
ARGUMENTS OF THE PARTIES
The plaintiffs’ claims are as follows: Count I for unreasonable search and seizure
under the Fourth Amendment of the United States Constitution and Article I § 8 of the
Iowa Constitution; Count II for excessive force, also under the Fourth Amendment of the
3
United States Constitution and Article I § 8 of the Iowa Constitution; Count III, a state
tort claim for intentional infliction of emotional distress; Count IV, a state tort claim for
invasion of privacy; Count V, a state tort claim for negligence; and Count VI for the
“Iowa Tort Claims Act.”1
Dorhout-Van Engen filed her Motion on August 28, 2015 (docket no. 6), and
moves to dismiss Count II for excessive force, Count IV for invasion of privacy, and
Count V for negligence, on the grounds that the plaintiffs fail to state a claim for relief.
Scott Lamp and the state of Iowa filed their Motion on September 3, 2015 (docket
no. 12). They move to dismiss several claims not included in the plaintiffs’ Petition,
which are considered in this Opinion and Order only for the sake of clarity. Additionally,
Lamp and the state of Iowa move: to dismiss Count II, for excessive force, against Lamp
for failure to state a claim; to substitute the state of Iowa for Lamp and dismiss Lamp
pursuant to the ITCA for Count III, intentional infliction of emotional distress; to
substitute the state of Iowa for Lamp and dismiss Lamp for Count IV, invasion of privacy,
or, in the alternative, to dismiss it entirely for failure to state a claim; to substitute the
state of Iowa for Lamp and dismiss Lamp for Count V, negligence, or, in the alternative,
to dismiss it entirely for failure to exhaust the administrative remedies required by the
ITCA; and, finally, to dismiss Count VI, the “ITCA” claim, for failure to state a claim
upon which relief can be granted.
A.
Summary of the Plaintiffs’ Argument
The plaintiffs contend that initiating a police stop by unnecessarily aiming firearms
at the person stopped constitutes excessive force (Count II). An excessive force claim
1
As discussed in Section III(E) of this Opinion and Order, the Iowa Tort Claims Act is
not a separate cause of action, but a mechanism through which the plaintiffs may bring
their tort claims against the state of Iowa in lieu of its state employees.
4
should be analyzed under the “objective reasonableness” standard of the Fourth
Amendment.
Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865 (1989).
Additionally, the plaintiffs rely on Article I § 8 of the Iowa Constitution to support this
claim. The plaintiffs argue that when three officers storm out of a car with guns pointed
at a person, there need not be an additional showing that the officers intended or attempted
to use their firearms, for the force to be objectively unreasonable. The defendants’
actions indicate to a reasonable person that deadly force may be used if the officers’
commands are not obeyed. The plaintiffs seek a remedy for the violation, with respect
to the “objective reasonableness,” of their Fourth Amendment rights, through 42 U.S.C.
§ 1983.
The plaintiffs also argue that the defendants conducted an unreasonable search and
seizure in violation of the Fourth Amendment (Count I). Wilson complied with Lamp’s
instruction, cooperated when questioned, and the defendants quickly determined that
Wilson was not the suspect they were pursuing. State Appeal Board Claim Form and
Affidavit Attachment, 4 (docket no. 12-2). After making this determination, DorhoutVan Engen searched Wilson’s person and then searched inside and underneath Wilson’s
truck without his consent. Id. One or more of the defendants searched the covered and
closed bed of Wilson’s pickup truck and its underside. Id. The plaintiffs contend that a
driver on a public highway has a reasonable expectation of privacy in his automobile.
The plaintiffs further contend that a search of an automobile in such circumstances,
without a warrant or probable cause, is an unconstitutional violation of the Fourth
Amendment. The plaintiffs additionally rely on Article I § 8 of the Iowa Constitution to
support their claim of unreasonable search and seizure. When a government official
violates the constitutional rights of an individual, an action against them in their individual
capacity may be brought under 42 U.S.C. § 1983.
5
The plaintiffs allege that when the defendants detained the plaintiffs, forced Wilson
out of his truck, and searched him and his vehicle without his consent, they argue that
there was an “intrusion upon seclusion” sufficient to sustain a state tort claim for invasion
of privacy (Count IV). The plaintiffs also contend that the actions of Lamp and DorhoutVan Engen were extreme and outrageous.
They argue the defendants either acted
intentionally to cause emotional distress to the plaintiffs or otherwise acted with reckless
disregard of the probability of causing emotional distress. The plaintiffs contend that this
outrageous conduct caused and will cause the plaintiffs to suffer severe or extreme
emotional distress (Count III).
The plaintiffs argue that the defendants’ actions of forcing Wilson out of his truck
at gun point with weapons drawn on M.W. and then searching Wilson and his truck
without justification, placed their lives in jeopardy. The plaintiffs argue that these acts
amount to negligent investigation and negligent investigation can be the basis of liability
against police officers if their conduct falls within one of the exceptions set forth in
Mastbergen v. City of Sheldon, 515 N.W.2d 3, 5 (Iowa 1994). The plaintiffs argue this
amounts to a failure to exercise reasonable care under the circumstances to sustain a claim
of negligence (Count V). Additionally, the plaintiffs argue that there is no requirement
that each and every possible legal theory to support a claim under the ITCA must be
articulated to the State Appeal Board in order to make a subsequent suit valid.
The plaintiffs also raise the ITCA, by itself, as a cause of action (Count VI).
B.
Summary of the Defendants’ Argument
The defendants argue that plaintiffs’ claim for excessive force, Count II, requires
at least some physical injury. Additionally, they argue that the act of a police officer
pointing a gun at a person is not a constitutional violation by itself. Here, there was no
harmful physical contact between the plaintiffs and the defendants. Therefore, the
6
defendants request that the claim for excessive force be dismissed. The defendants point
out that the state of Iowa should be substituted for Lamp and Dorhout-Van Engen for all
state tort claims pursuant to the ITCA. The defendants argue that the plaintiffs have
failed to state a claim for an invasion of privacy (Count IV). The defendants presume
this claim is being brought under an “intrusion upon seclusion” theory, given the
plaintiffs’ Petition did not specify. The defendants contend that, what can be seen in
plain view from a public vantage point, is not an intrusion upon seclusion. The plaintiffs
were in their pickup truck, visible through car windows, and on a public thoroughfare.
Therefore, an intrusion on seclusion claim cannot be maintained. As to the negligence
claim (Count V), the defendants argue that the plaintiffs have not exhausted the
administrative remedies required by the ITCA before instituting suit. The defendants
further argue, that in any case, no special relationship existed between the plaintiffs and
the officers to give rise to a negligence cause of action. Additionally, the defendants note
that the ITCA, by itself, is not a viable cause of action (Count VI).
III.
DISCUSSION
The analysis of plaintiffs’ claim for excessive force is bifurcated as two claims,
one under the Iowa Constitution and one under the United States Constitution. The
analysis under the Iowa Constitution is contained in Section B, below, and the analysis
under the United States Constitution in Section C. The analysis of qualified immunity
for the excessive force claim is contained in Section D. I then analyze the Iowa Tort
Claims Act and claims brought pursuant to it in Section E.
The plaintiffs argue 42 U.S.C. § 1981 as another basis for their claims, without
explaining how this would provide for recovery. Section 1981 is generally used as a
basis to prohibit racial discrimination in the context of employment and the making and
enforcement of private contracts. See e.g., CBOCS West, Inc. v. Humphries, 553 U.S.
7
442, 449-57 (2008); Keefe v. City of Minneapolis, 785 F.3d 1216 (8th Cir. 2015). The
only place plaintiffs mention § 1981 is in the Jurisdiction and Venue section of their
Petition and in one brief, which notes that they “listed [ ] § 1981 in their petition as
authority for the source of their rights that were deprived . . . .” Pls.’ Br. Supp. Resp.
And Res. To State Of Iowa And Lamp’s Mot. to Dismiss, 2 (docket no. 14-1). Any
basis for recovery under § 1981 has not been adequately pleaded, so I grant defendants’
Motion to Dismiss any § 1981 claims as to all defendants. Only defendants Lamp and
Dorhout-Van Engen are charged in Count I, unreasonable search and seizure, through
operation of 42 U.S.C. § 1983 and the Iowa Constitution, and neither have filed a
resistance to that claim. Although the plaintiffs do not name the state of Iowa as a
defendant in Count I, the defendants have clarified that the state of Iowa would not qualify
as a “person” for the purposes of 42 U.S.C. § 1983. As this claim was never alleged, I
do not grant the defendants’ Motion to Dismiss Count I as to the state of Iowa, but note
that it is not a defendant to this claim for the sake of clarity.
A.
Standard of Review for Motion to Dismiss
The defendants move to dismiss certain claims pursuant to Federal Rule of Civil
Procedure 12(b)(6). Rule 12(b)(6) authorizes a pre-answer motion to dismiss for “failure
to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). As the
Eighth Circuit Court of Appeals has explained,
We review de novo the district court’s grant of a motion to
dismiss, accepting as true all factual allegations in the
complaint and drawing all reasonable inferences in favor of
the nonmoving party. See Palmer v. Ill. Farmers Ins. Co.,
666 F.3d 1081, 1083 (8th Cir. 2012); see also FED. R. CIV.
P. 12(b)(6). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v.
8
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d 868
(2009) (internal quotation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); accord Freitas
v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter,
686 F.3d at 850); Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (stating
the same standards).
Courts consider “plausibility” under this Twom-bal standard2 by “draw[ing] on
[their own] judicial experience and common sense.” Whitney, 700 F.3d at 1128 (quoting
Iqbal, 556 U.S. at 679). Also, courts must “review the plausibility of the plaintiff’s
claim as a whole, not the plausibility of each individual allegation.” Id. (quoting Zoltek
Corp. v. Structural Polymer Grp., 592 F.3d 893, 896 n.4 (8th Cir. 2010)). The Eighth
Circuit Court of Appeals has refused, at the pleading stage, “to incorporate some general
and formal level of evidentiary proof into the ‘plausibility’ requirement of Iqbal and
Twombly.” Id. Nevertheless, the question “is not whether [the pleader] might at some
later stage be able to prove [facts alleged]; the question is whether [it] has adequately
asserted facts (as contrasted with naked legal conclusions) to support [its] claims.” Id.
at 1129. Thus, while this court must “accept as true all facts pleaded by the non-moving
party and grant all reasonable inferences from the pleadings in favor of the non-moving
2
The “Twom-bal” standard is my nickname for the “plausibility” pleading standard
established in the United States Supreme Court’s twin decisions on pleading
requirements, and standards for dismissal for failure to state a claim upon which relief
can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for
claims in federal court. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 167 L.Ed.2d 929 (2007); see also Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009).
9
party,” United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458,
462 (8th Cir. 2000), “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678, 129
S. Ct. 1937 (quoting Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929
(2007)); Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012); Whitney,
700 F.3d at 1128 (stating the same standards). With the above standards in mind, I turn
to consider the defendants’ Motions to Dismiss. In each section, below, I discuss the
requirements for the claim at issue, following which I analyze whether the plaintiffs’
factual allegations sufficiently state a plausible claim.
B.
Excessive Force in Violation of the Iowa
Constitution
Historically, there has been no private cause of action for money damages under
the Iowa Constitution. This issue was recently considered by the Iowa Court of Appeals
in Conklin v. State, 863 N.W.2d 301 (Iowa App. 2015), relying on the analysis in
Meinders v. Duncan Cmty. Sch. Dist., 645 N.W.2d 632, 635 (Iowa 2002). However,
this decision is currently under consideration by the Iowa Supreme Court. Iowa Judicial
Branch,
Iowa
Supreme
Court:
Further
Review
Orders,
http://www.iowacourts.gov/About_the_Courts/Supreme_Court/Further_Review_Orders
(last visited Nov. 12, 2015). In Conklin, the Iowa Court of Appeals noted that Article
XII, § 1 of the Iowa Constitution states in part: “The general assembly shall pass all laws
necessary to carry this constitution into effect.” Implicit in this phrasing is that the
constitution, itself, does not create a cause of action for a violation of its terms; rather,
the legislature must pass laws in order for a remedy to exist. The Iowa legislature has
not enacted a statute which would allow for a private cause of action for a violation of
Article I § 8 of the Iowa Constitution. Therefore, the Iowa Court of Appeals noted that
10
the text of the constitution itself counsels against a judicially implied remedy for a private
cause of action. Given the express language in Article XII, which grants the legislature
the power to enact laws to carry the constitutional provisions into effect, it would create
a significant separation-of-powers issue were the court to imply a remedy in the absence
of a statute. See Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255,
260 (Iowa 2002) (noting: “The separation-of-powers doctrine is violated ‘if one branch
of government purports to use powers that are clearly forbidden, or attempts to use
powers granted by the constitution under another branch.’”(internal citations omitted)).
Because this issue in Conklin is currently under consideration by the Iowa Supreme
Court, I reserve ruling on the defendants’ Motions to Dismiss plaintiffs’ Count II of
excessive force as it relates to Article I § 8 of the Iowa Constitution. There remains,
however, an avenue of relief for this claim pursuant to 42 U.S.C. § 1983 based on
violation of the United States Constitution. This claim is analyzed below.
C.
Excessive Force Pursuant to Section 1983
42 U.S.C. § 1983 was designed to provide a “broad remedy for violations of
federally protected civil rights.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685, 98
S. Ct. 2018 (1978). However, 42 U.S.C. § 1983 provides no substantive rights. Albright
v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807 (1994). “One cannot go into court and
claim a ‘violation of [42 U.S.C.] § 1983’ – for § 1983 by itself does not protect anyone
against anything.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S.
Ct. 1905 (1979).
Rather, § 1983 provides a remedy for violations of all “rights,
privileges, or immunities secured by the Constitution and laws [of the United States].”
42 U.S.C. § 1983; see also Albright, 510 U.S. at 271.
In a § 1983 action, the plaintiff must prove: (1) that “the conduct complained of
was committed by a person acting under color of state law;” and, (2) that the “conduct
11
deprived a person of rights, privileges, or immunities secured by the Constitution of the
United States.” Parratt v. Taylor, 451 U.S. 527, 535 101 S. Ct. 1908 (1981), overruled
on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662 (1986). There
is no dispute about the first element: neither party contests that the defendant officers
were acting under color of state law. Thus, this analysis will focus on the second element
of a § 1983 action.
In addressing an excessive force claim brought under § 1983, analysis begins by
identifying the specific constitutional right allegedly infringed by the challenged
application of force. Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1864 (1989).
[A] free citizen’s claim that law enforcement officials used
excessive force in the course of making an arrest,
investigatory stop, or other “seizure” of his person [ ] are
properly analyzed under the Fourth Amendment’s “objective
reasonableness” standard. . . . Determining whether the force
used to effect a particular seizure is “reasonable” under the
Fourth Amendment requires a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake. Fourth Amendment jurisprudence has long
recognized that the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it. Because the
test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,
however, its proper application requires careful attention to
the facts and circumstance of each particular case, including
the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and
whether he was actively resisting arrest or attempting to evade
arrest by flight. . . . The “reasonableness” of a particular use
of force must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of
12
hindsight. . . . Not every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates
the Fourth Amendment. The calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments – in circumstances that
are tense, uncertain, and rapidly evolving – about the amount
of force that is necessary in a particular situation.
Id. (citations omitted). The United States Supreme Court has established a purposefully
flexible “objective reasonableness” test that pays “careful attention to the facts and
circumstances of each particular case[.]” Id. at 396. The Supreme Court has reiterated
this standard most recently in Kingsley v. Hendrickson, 135 S. Ct. 2466, 192 L. Ed. 2d
416 (June 22, 2015). Although, in practice, some federal circuits, including the Eighth
Circuit, have taken a different approach.
The Eighth Circuit Court of Appeals held that courts may dismiss Fourth
Amendment excessive force claims based solely on one factor: whether or not the
claimant suffered an “actual injury” during the encounter. Dawkins v. Graham 50 F.3d
532, 534 (8th Cir. 1994) (“Assuming without deciding that the [plaintiffs] must have
suffered some minimum level of injury to proceed with their Fourth Amendment
excessive force claim, we conclude the necessary level of injury is actual injury.”). A
line of cases following Dawkins held that “the necessary level of injury is actual injury.”
See e.g., Lambert v. City of Dumas, 187 F.3d 932, 936 (8th Cir. 1999); Guite v. Wright,
147 F.3d 747, 750 (8th Cir. 1998). Another line of cases in the circuit held the “actual
injury” standard to mean that a de minimis use of force was insufficient to support a claim
for excessive force. See e.g., Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006);
Hunter v. Namanny, 219 F.3d 825, 832 (8th Cir. 2000); Curd v. City Court, 141 F.3d
839, 841 (8th Cir. 1998); see also Hollingsworth v. City of St. Ann, 2015 U.S. App.
LEXIS 15676 (8th Cir. Sept. 3, 2015).
13
To address the ongoing confusion about “whether a plaintiff must demonstrate
greater than de minimis injury to establish a use of excessive force that violates the Fourth
Amendment” the Eighth Circuit Court of Appeals recently reiterated that the appropriate
inquiry is “whether the force used to effect a particular seizure is ‘reasonable.’”
Chambers v. Pennycook, 641 F.3d 898, 906 (8th Cir. 2011) (quoting Graham, 490 U.S.
at 396). In Chambers, the court stated, “[T]here is no uniform requirement that a plaintiff
show more than de minimis injury to establish an application of excessive force.” Id.
The court expressly rejected the proposition that, “evidence of only de minimis injury
necessarily forecloses a claim of excessive force under the Fourth Amendment.” Id.
Although almost all excessive force claims in the Eighth Circuit are based on the
unreasonableness as to the infliction of physical injury, this is not a requirement. “The
degree of injury should not be dispositive, because the nature of the force applied cannot
be correlated perfectly with the type of injury inflicted.” Id. (emphasis added).
As neither party has pointed to an Eighth Circuit case on point, I will explore
nonbinding, out-of-circuit authority.
The Seventh Circuit Court of Appeals has
repeatedly held that gun-pointing when an individual presents no danger is unreasonable
and violates the Fourth Amendment. See e.g., Jacobs v. City of Chicago, 215 F.3d 758,
773-74 (7th Cir. 2000) (pointing a gun at an elderly man’s head for ten minutes even
after realizing that he is not the desired suspect and when he presents no resistance is
“out of proportion to any danger that [the plaintiff] could possibly have posed to the
officers or any other members of the community.”); McDonald v. Haskins, 966 F.2d
292, 294-95 (7th Cir. 1992) (pointing a gun at a nine-year-old child during a search and
threatening to pull the trigger was “objectively unreasonable”). Undertaking a similar
analysis, the Tenth Circuit Court of Appeals has noted that “[p]ointing a firearm directly
at a child calls for even greater sensitivity to what may be justified or what may be
excessive under all the circumstances.” Holland v. Harrington, 268 F.3d 1179 (10th
14
Cir. 2001). In determining that an officer was objectively unreasonable in using a
submachine gun to round up everyone in a shop and warehouse, which was the subject
of an investigation, the Seventh Circuit Court of Appeals considered that the suspected
crime was nonviolent, there was no threat to the safety of the officers involved, and none
of the plaintiffs resisted detention or attempted to flee. Baird v. Renbarger, 576 F.3d
340, 344 (7th Cir. 2009). The Baird court further concluded that, “[p]laintiffs need not
show physical injury in order to sustain an excessive force claim.” Id. The Ninth Circuit
Court of Appeals reached a similar conclusion in determining “[a]n officer’s show of
force is subject to Fourth Amendment reasonableness requirements even where no actual
force is applied.” Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) (indicating agreement
with the Fifth Circuit Court of Appeals that “[a] police officer who terrorizes a civilian
by brandishing a cocked gun in front of that civilian’s face may not cause physical injury,
but he has certainly laid the building blocks for a section 1983 claim against him.”)
(quoting Petta v. Rivera, 143 F.3d 895, 905 (5th Cir. 1998)). In at least one Eighth
Circuit case, the court held that posttraumatic stress disorder could qualify as actual injury
to substantiate a claim for excessive force. Dawkins, 50 F.3d at 534.
Applying the standard set by the Supreme Court in Graham, as interpreted by
Chambers, the key question is whether the officers’ conduct was objectively reasonable
under the circumstances, as judged from the perspective of a reasonable officer on the
scene at the time the force was applied. The defendant officers, in this case, were in
pursuit of a suspect for a crime which did not involve violence. The clerk at the local
convenience store may disagree, but the crime of driving away without paying for
gasoline is not in the realm of severe. The officers make no indication in the record that
they suspected they were pursuing someone armed and dangerous. The defendants have
presented no evidence that would justify initiating the stop of the plaintiffs’ truck in such
an aggressive and hostile manner. The defendant officers quickly determined that the
15
plaintiffs were not the suspect they were seeking, yet they kept a gun trained on a six
year old child. Keeping a shotgun or rifle aimed at a six year old for the duration of the
stop, especially after determining that Wilson and M.W. posed no threat and, in fact,
were not the suspect sought, calls for greater sensitivity to what is excessive. The
defendant officers determined almost immediately that the plaintiffs posed no threat to
their safety, as one of the defendant officers soon engaged Wilson in seemingly polite
conversation.
The plaintiffs complied with the officers’ requests and offered no
resistance. Although the plaintiffs’ Petition alleges only “past and future physical and
mental pain and suffering” and “past and future loss of full mind and body,” the State
Appeal Board Claim Form explains further; “[Wilson] now suffers from bad anxiety and
is having nightmares . . . [he] takes anxiety medication that he did not take prior to the
incident,” additionally “[he] does not like to go outside when it is dark out in fear [of]
guns being drawn on him. [he] is also very agitated and short with people because he is
on edge all the time.” The form also states that “[M.W.] has suffered much and the
trauma has affected him deeply.
He has become more withdrawn and sad in his
disposition.” Accepting as true all facts pleaded by the non-moving party and granting
all reasonable inferences from the pleadings in favor of the non-moving party, the
plaintiffs have adequately stated a federal claim for excessive force.
Therefore, the defendants’ Motions to Dismiss plaintiffs’ Count II for excessive
force, brought under 42 U.S.C. § 1983, are denied.
D.
Qualified Immunity For Excessive Force
The doctrine of qualified immunity protects government officials “from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v.
Callahan, 555 U.S. 223, 231, 129 S. Ct. 808 (2009) (quoting Harlow v. Fitzgerald, 457
16
U.S. 800, 818, 102 S. Ct. 2727 (1982)). In Pearson, the United States Supreme Court
offered this explanation of the reasoning behind the concept of qualified immunity:
“Qualified immunity balances two important interests – the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Id.
The Supreme Court has made clear that the driving force behind the creation of the
qualified immunity doctrine was a desire to ensure that “’insubstantial claims’ against
government officials [will] be resolved prior to discovery.” Pearson 555 U.S. at 231
(quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987). The protection of
qualified immunity applies regardless of whether the government official’s error is “a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”
Groh v. Ramirez, 540 U.S. 551, 567, 124 S. Ct. 1284 (2004) (KENNEDY, J., dissenting)
(quoting Butz v. Economou, 438 U.S. 478, 507, 98 S. Ct. 2894 (1978) (for the
proposition qualified immunity covers “mere mistakes in judgment, whether the mistake
is one of fact or one of law”)). Pearson, 555 U.S. at 231. To put it another way,
“[w]hen properly applied, [qualified immunity] protects ‘all but the plainly incompetent
or those who knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct.
2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092
(1986)). The doctrine “allows officers to make reasonable errors so that they do not
always err on the side of caution for fear of being sued.” Amrine v. Brooks, 522 F.3d
823, 831 (8th Cir. 2008).
The Supreme Court and the Eighth Circuit Court of Appeals have explained that
“[e]valuating a claim of qualified immunity requires a ‘two-step inquiry: (1) whether the
facts shown by the plaintiff make out a violation of a constitutional or statutory right, and
(2) whether that right was clearly established at the time of the defendant’s alleged
misconduct.’” Burton v. St. Louis Bd. of Police Comm’rs, 731 F.3d 784, 791 (8th Cir.
17
2013) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)). The
official is entitled to qualified immunity unless the answer to both of these questions is
yes. Burton, 731 F.3d at 791. As to the “clearly established law” prong, the Eighth
Circuit Court of Appeals has explained, “[I]n light of the pre-existing law the
unlawfulness [of the official’s action] must be apparent.” Hope v. Pelzer, 536 U.S. 730,
739, 122 S. Ct. 2508 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.
Ct. 3034 (1987)).
“Qualified immunity would be defeated if an official knew or
reasonably should have known that the action he took within his sphere of official
responsibility would violate the constitutional rights of the plaintiff[s].” Gordon ex rel.
Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006) (alterations omitted) (citation and
internal quotation marks omitted). “Officials are not liable for bad guesses in gray areas;
they are liable for transgressing bright lines.” Davis v. Hall, 375 F.3d 703, 712 (8th
Cir. 2004) (citation and internal quotation marks omitted). See also Scott v. Baldwin,
720 F.3d 1034, 1036 (8th Cir. 2013). There is no requirement, however, “that the very
action in question has previously been held unlawful, but rather, in the light of preexisting law the unlawfulness must be apparent.” Vaughn v. Ruoff, 253 F.3d 1124, 1129
(8th Cir. 2001) (internal quotations and citations omitted); see also Hope v. Pelzer, 536
U.S. 730 (2002). The Eighth Circuit Court of Appeals has noted that it subscribes to a
“broad view” of what constitutes clearly established law; “in the absence of binding
precedent, a court should look to all available decisional law, including decisions of state
courts, other circuits and district courts.” Tlamka v. Serrell, 244 F.3d 628, 634 (8th Cir.
2001) (quoting Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th Cir. 1998)); see also Bell
v. Burl, 605 Fed. Appx. 593 (8th Cir. July 1, 2015). Although the court in Tlamka could
not find a decision with a similar set of facts, they concluded that the principles laid out
in other cases could pierce the shield of qualified immunity. Id. “Once the predicate
18
facts are established, the reasonableness of the official’s conduct under the circumstances
is a question of law.” Id. at 632.
The Supreme Court has repeatedly stressed the importance of resolving immunity
questions at the earliest possible stage in litigation. Pearson, 555 U.S. at 232 (citing
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)). However, the Court also
noted the difficulty in determining qualified immunity at the pleading stage, when the
precise factual basis for the plaintiffs’ claim may be hard to identify. Id. at 239. The
Court further notes that several courts have recognized the two-step inquiry of
determining qualified immunity is “an uncomfortable exercise where . . . the answer [to]
whether there was a violation may depend on a kaleidoscope of facts not yet fully
developed.” Id. (citing Dirrane v. Brookline Police Dept., 315 F.3d 65, 69-70 (C.A.1
2002) see also Robinette v. Jones, 476 F.3d 585, 592 n.8 (C.A.8. 2007) (declining to
follow the two-step inquiry because “the parties have provided very few facts to define
and limit any holding” on the constitutional question). The Pearson court recognized the
danger of bad decisionmaking when courts have an obligation to resolve immunity issues
at the earliest possible stage, if briefing of constitutional questions is woefully inadequate.
Id. at 239 (citing Lyons v. Xenia, 417 F.3d 565, 582 (C.A.6 2005)). The Pearson court
also quoted Mollica v. Volker, noting the “risk that constitutional questions may be
prematurely and incorrectly decided in cases where they are not well presented.” 229
F.3d 366, 374 (C.A.2 2000).
Lamp and the state of Iowa raise the issue of qualified immunity and rely on
Chambers v. Pennycook, 641 F.3d 898 (8th Cir. 2011). However, in Chambers, the
court rejected a constitutional rule that turned on the arrestee’s degree of injury, thus
changing the law that prevailed at the time of the officers’ actions in that case. It was
because this change in the law occurred after the officers’ actions that they were granted
qualified immunity in Chambers. The standard for an excessive force claim, determined
19
in Chambers, was the prevailing law at the time of the defendant officers’ actions in this
case and is still the prevailing law.
Lamp and the state of Iowa address the issue of whether the constitutional violation
was “clearly established” by raising several cases to show that, when an officer points a
gun at a suspect, detainee, or inmate, there is no violation. State Defs.’ Reply To Pls.’
Res. to State Defs.’ Mot. To Dismiss, 2-3. However, the cases they raise, cited below,
are all distinguishable because: the plaintiffs in those cases were resisting officers, fleeing
arrest, already incarcerated, or combative; the law only became “clearly established” by
the court after the officers acted, like in Chambers; or where an outdated standard of
excessive force was applied. Because, in some of the cases the defendants raise, qualified
immunity was decided in the context of alleged violations of the constitutional rights of
inmates, I note that the Eighth Amendment standard for excessive force applies when the
plaintiff is incarcerated, instead of the Fourth Amendment standard, which applies here.
Kingsley, 135 S. Ct. at 2475 (while noting that the objective standard is appropriate for
an excessive force claim by pretrial detainees and a person who has been accused, but
not convicted of a crime, whereas the subjective standard is appropriate when the claim
is brought by convicted prisoners, the Court stated, “[t]he language of the two Clauses
differs, and the nature of the claims often differs.”). The defendants cite: Edwards v.
Giles, 51 F.3d 155 (8th Cir. 1989) (suspect fleeing apprehension); Grider v. Bowling,
785 F.3d 1248 (8th Cir. 2015) (officers use of force not excessive because the plaintiff
refused to exit his vehicle and was in possession of a knife); Johnson v. Carroll, 658
F.3d 819 (8th Cir. 2011) (majority opinion concluding there was sufficient evidence to
preclude summary judgment on the basis of official immunity at the district court level,
defendants cite the dissenting opinion for the contrary point); Policky v. City of Seward,
433 F. Supp. 2d 1013 (D. Neb. 2006) (officer entered a room with combative suspect,
allegedly with taser drawn, and handcuffed suspect because needles were nearby and
20
could be used as weapons); Johnson v. Grob, 928 F. Supp. 889 (W.D. Mo. 1996)
(“knock and announce rule” had not yet been declared at the time of officers’ actions,
therefore no violation of “clearly established law”); Wilkins v. May, 872 F.2d 190 (7th
Cir. 1989) (relying on several cases, all analyzing excessive force under the outdated
“severe injury” standard); Rodriguez v. Vega, 2015 WL 4241042 (W.D. Ark. July 15,
2013) (relying on Edwards v. Giles without a discussion of the circumstances of the
individual case); Brown v. Moore, 2014 WL 4410178 (W.D. Ark. Sept. 8, 2014)
(denying an excessive force claim under the Eighth Amendment standard where an officer
drew a taser on an inmate who refused to obey orders); Kaleta v. Johnson, 2013 WL
3448148 (D. Minn. July 9, 2013) (officer, responding to a call about a man acting
bizarrely and chasing a woman, drew a gun on the agitated man who would not comply
with orders); and Frison v. Zebro, 2002 WL 539069 (D. Minn. Apr. 5, 2002) (officers
had reason to believe that the suspect might be dangerous based on having already been
summoned to the suspect’s residence on eighty-five occasions).
To be clear, qualified immunity has not been asserted with respect to the Fourth
Amendment unreasonable search and seizure claim, it has only been raised in the context
of the excessive force claim under the Fourth Amendment. If deciding the issue of
qualified immunity now, I would resolve that the law is clearly established, based on the
Fifth, Seventh, Eighth, Ninth, and Tenth Circuit cases cited in Section III(C) of this
Opinion and Order, and because the cases raised by the defendants are easily
distinguishable. The defendants have not cited any contrary authority which is analogous
to the facts and circumstances of this case. However, the plaintiffs’ degree of injury and
the basis for which the defendants initiated a traffic stop in such a hostile manner, in
search of a suspect accused of stealing gasoline, have not been adequately developed in
the record. Because of the reasons in Pearson set forth above, noting the concerns of
other courts in resolving the issue of qualified immunity on a prematurely developed
21
record, and based on the limited extent to which the parties’ briefs address qualified
immunity, I will not resolve the issue at this early juncture.
E.
Iowa Tort Claims Act
Generally, the state of Iowa may be sued for damage caused by the negligent or
wrongful acts or omissions of state employees acting within the scope of their
employment, to the same extent that a private person may be sued. IOWA CODE
§ 669.2(3)(a); see also Magers-Fionof v. State, 555 N.W.2d 672, 674 (Iowa 1996).
Lawsuits against the state of Iowa are authorized by the ITCA. IOWA CODE Ch. 669
(2014). Although the ITCA does not, itself, create a cause of action, it “recognizes and
provides a remedy for a cause of action already existing which would have otherwise
been without remedy because of common law immunity.” Minor v. State, 819 N.W.2d
383, 405 (Iowa 2012) (quoting Engstrom v. State, 461 N.W.2d 309, 314 (Iowa 1990)).
As a condition to waiving its sovereign immunity by enacting the ITCA, the legislature
established an administrative procedure for litigants to follow prior to commencing an
action in court. IOWA CODE § 669.5. The ITCA requires a claim to be filed with the
director of the department of management. Id. at 669.3(2). The administrative process
allows the state attorney general to dispose of the claim through payment, settlement, or
other disposition. Id. § 669.3(1). A litigant may only proceed to court under the ITCA
if the attorney general fails to dispose of the claim within six months and the claimant
provides notice to the attorney general of the intent to withdraw the claim from further
consideration. Id. § 669.5(1).
As long as the employee was acting within the scope of employment at the time of
the underlying incident, the suit is deemed to be an action against the state of Iowa. Id.
The attorney general may certify that the defendant was an employee acting within the
scope of employment. Id. § 669.5(2)(a). If the attorney general fails to certify that the
22
employee was acting within the scope of their employment, or when a factual dispute
exists as to whether the state employee was acting within the scope of his or her
employment, the court cannot substitute the state of Iowa as a defendant until the court
determines the employee acted within the scope of his or her employment. Godfrey v.
State, 847 N.W.2d 578, 587 (Iowa 2014).
When a state employee acts outside the scope of his or her employment, the
employee is responsible for the attorney’s fees and the damages. Generally in a tort
action, the fact finder decides whether an act is within the employee’s scope of
employment. See Godar v. Edwards, 588 N.W.2d 701, 706 (Iowa 1999). If the court
can resolve the scope of employment issue by summary judgment, the court shall
substitute the state of Iowa as the defendant for the employee. Godfrey, 847 N.W.2d at
586. If the fact finder can establish the employee was acting within the scope of his or
her employment, the court shall substitute the state of Iowa as the defendant for the
employee. Id.
The plaintiffs allege in their Petition that “[d]efendants at all times were acting
under color of state law and within the scope of their employment with the Iowa
Department of Public Safety – Division of Criminal Investigation or other governmental
entity.” (Pet. ¶ 26). Lamp, the state of Iowa, and Dorhout–Van Engen do not contest
that they were acting within their scope of employment for the state of Iowa. So, the
ITCA applies and the plaintiffs’ tort claims are deemed to be against the state of Iowa.
The provisions of chapter 669 of the Iowa Code merely enable the plaintiffs to
allege their other tort causes of action which are analyzed below. The plaintiffs separately
allege a cause of action, Count VI, the “ITCA” claim in their Petition, which is not,
itself, a cause of action. The plaintiffs may have merely intended to highlight that, to
some extent, the administrative requirements for their tort claims were met before they
filed suit in court. The plaintiffs’ claims which do fall under the ITCA are: Count III for
23
the intentional infliction of emotional distress, Count IV for Invasion of Privacy, and
Count V for Negligence. Those claims are analyzed below.
Because the ITCA is not a cause of action, in itself, the defendants’ Motion to
Dismiss plaintiffs’ Count VI for “Iowa Tort Claims Act” is granted as to all defendants.
1.
Intentional infliction of emotional distress
The ITCA does not permit claims arising out of “abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.” IOWA CODE § 669.14(4).
However, the Act does not expressly prohibit claims for intentional infliction of emotional
distress. Id. In fact, a recent Iowa Supreme Court case found that a claim for intentional
infliction of emotional distress could be brought under the ITCA. Smith v. Iowa State
University of Science and Technology, 851 N.W.2d 1, (Iowa 2014). No party contests
that defendants Lamp and Dorhout–Van Engen were acting within the scope of their
employment as employees for the state of Iowa.
The plaintiffs complied with the
administrative requirements of the ITCA. The State Defendants’ Motion to Dismiss
moves to substitute the state of Iowa pursuant to the ITCA and to dismiss this claim
against Lamp. According to Godfrey, the court shall substitute the state of Iowa as
defendant for the employees in those circumstances. Godfrey, 847 N.W. 2d 578, 586
(Iowa 2014). So, although Dorhout-Van Engen did not request that the state of Iowa be
substituted as defendant instead of her, relief may still be granted.
Therefore, the state of Iowa is substituted as the sole defendant for Count III of
intentional infliction of emotional distress and defendants’ Motions to Dismiss this claim,
as against Lamp and Dorhout-Van Engen, are granted in part.
24
2.
Negligence
A tort claim against the state of Iowa must first be presented to the State Appeal
Board pursuant to the procedures detailed in Iowa Code chapter 669, the ITCA. Swanger
v. State, 445 N.W.2d 344, 346 (Iowa 1989). The Supreme Court of Iowa has held that
exhaustion of the administrative remedy provided by chapter 669 is jurisdictional. Id. at
347; Brumage v. Woodsmall, 444 N.W.2d 68, 70 (Iowa 1989). Improper presentment
of a claim has been considered a failure to exhaust one’s administrative remedies,
depriving the district court of subject matter jurisdiction. See e.g., Bloomquist v. Wapello
County, 500 N.W.2d 1 (Iowa 1993) (no jurisdiction of loss-of-consortium claims because
they had not been included in administrative claim). The Iowa Supreme Court has
clarified the pleading standards that must be met for the purposes of the ITCA in
Bloomquist, 500 N.W.2d 1, 8 (Iowa 1993). In Bloomquist, the Iowa Supreme Court held
that it is incumbent on a claimant to first file each independent cause of action before the
proper administrative agency, even if the additional specificity would not change the state
of Iowa’s approach to defending the case. Id.
In the plaintiffs’ State Appeal Board Claim Form and Affidavits (docket nos. 122, 12-3) the only unlawful acts listed are: (1) unreasonable search and seizure; (2)
excessive force; (3) intentional infliction of emotional distress; and (4) invasion of
privacy. Accepting as true all facts pleaded by the non-moving party and granting all
reasonable inferences from the pleadings in favor of the non-moving party, plaintiffs’
claim for negligence, listed in their Petition ¶¶ 51-56, must be dismissed because the
plaintiffs have not sufficiently stated a claim for relief and have failed to exhaust the
requisite administrative remedies required by the ITCA. See Feltes v. State, 385 N.W.2d
544, 546-48 (Iowa 1986) (citing Weisbrod v. State, 193 N.W.2d 125, 127 (Iowa 1971)
(“This statutory suit may not be brought, however, until the administrative remedy is
exhausted.”)). A claim for negligence was not first presented to the State Appeal Board.
25
Additionally, Iowa does not recognize a tort for negligent law enforcement
response and investigation in the absence of a special relationship between the plaintiff
and law enforcement. See Morris v. Leaf, 534 N.W.2d 388, 390 (Iowa 1995) (“Iowa
courts have consistently held that law enforcement personnel do not owe a particularized
duty to protect individuals; rather, they owe a general duty to the public.”); Mastbergen
v. City of Sheldon, 515 N.W.2d 3, 5 (Iowa 1994) (“Consistent with the common-law
principles recognized by those sections, we have recognized two exceptions when law
enforcement may be liable for damages: (1) when the police create the situation that
places the citizen’s life in jeopardy and (2) when the police take a citizen into custody
and control.”); Smith v. State, 324 N.W.2d 299, 302 (Iowa 1982) (holding “law
enforcement officers have no liability for mere negligence in investigation of crime.”)
The Iowa Supreme Court has further stated, “the rule not only applies when the person
allegedly harmed by a negligent investigation has been charged and arrested, but also
when the allegedly negligent investigation results in no arrest.” Hildebrand v. Cox, 369
N.W.2d 411, 415 (Iowa 1985).
Additionally, plaintiffs have not provided any facts which suggest that the
defendant officers in question created a special relationship such that Iowa law would
allow for recovery on a negligence theory.
Therefore, defendants’ Motions to Dismiss plaintiffs’ Count V of negligence are
granted as to all defendants.
3.
Invasion of privacy
The Iowa Supreme Court has adopted and applied the principles of invasion of
privacy articulated in the Restatement (Second) of Torts (1977).
See Stessman v.
American Black Hawk Broad. Co., 416 N.W.2d 685, 686 (Iowa 1987). Four types of
invasion of privacy are recognized, but relevant to this discussion is the “unreasonable
26
intrusion upon the seclusion of another.” RESTATEMENT (SECOND) OF TORTS §§ 652A,
652B. This form of invasion of privacy generally requires the plaintiff to establish two
elements. The first element requires an intentional intrusion, physically or otherwise,
into a matter to which the plaintiff has a right to expect privacy. In re Marriage of
Tigges, 758 N.W.2d 824, 829 (Iowa 2008). The next element requires the act to be
“highly offensive to a reasonable person.” Id. Considering an intrusion upon seclusion
claim based on Iowa law, the Eighth Circuit Court of Appeals has noted that “both the
manner of intrusion as well as the nature of the information acquired . . . must rise to the
level of being highly offensive to the reasonable person.” Hill v. McKinley, 311 F.3d
899, 906 (8th Cir. 2002) (quoting Fields v. Atchison, Topeka, and Santa Fe Ry. Co., 985
F. Supp. 1308, 1312 (D. Kan. 1997)). There is no liability for observing a person while
on a public highway “since he is not then in seclusion, and his appearance is open to the
public eye.” RESTATEMENT (SECOND) OF TORTS § 652B comment c. However, “[T]he
mere fact a person can be seen by others does not mean that person cannot legally be
‘secluded.’” Stessman, 416 N.W.2d at 687 (quoting Huskey v. NBC, Inc., 632 F. Supp.
1282, 1287-88 (N.D. Ill. 1986)).
In Marriage of Tigges, the Iowa Supreme Court repeatedly assessed the first
element of an intrusion upon seclusion claim through a “reasonable expectation of
privacy” analysis. In re Marriage of Tigges, 758 N.W.2d 825-30. Although this is a
state tort law claim, the language of the standard is the same as a Fourth Amendment
analysis. A state tort action is generally between private citizens, whereas a Fourth
Amendment violation is applicable to state actors by incorporation via the Fourteenth
Amendment. See State v. Manning, 856 N.W.2d 36 (Iowa Ct. App. 2014); Mapp v.
Ohio, 367 U.S. 643, 660 (1961). The Iowa Court of Appeals noted that a state law
invasion of privacy claim does not necessitate a Fourth Amendment privacy analysis.
Davenport v. City of Corning, 2007 Iowa App. LEXIS 1125 (Oct 24, 2007) (relying on
27
Hill v. McKinley, 311 F.3d 899, 905-06 (8th Cir. 2002). However, here, state actors
are the alleged violators and they are being sued in tort by operation of the ITCA, so an
invasion of privacy analysis under the Fourth Amendment is instructive to the state tort
claim.
According to the Iowa Court of Appeals, the essential purpose of the Fourth
Amendment proscription is to impose a standard of reasonableness upon law enforcement
officers to safeguard the privacy and security of individuals against invasion. State v.
Anderson, 479 N.W.2d 330, 332 (Iowa Ct. App. 1991). “An individual’s reasonable
expectation of privacy is not subject to arbitrary invasion solely at the unfettered
discretion of the officers in the field.” Id. (citing Brown v. Texas, 443 U.S. 47, 51, 99
S. Ct. 2637 (1979)). “[O]ccupants of motor vehicles . . . ordinarily have a legitimate
expectation of privacy which is invaded when the vehicle is stopped by the government.”
State v. Eis, 348 N.W.2d 224, 226 (Iowa 1984). The Supreme Court has emphasized
that even a frisk for weapons, which takes only a few seconds, is “a serious intrusion
upon the sanctity of the person, which may inflict great indignity and arouse strong
resentment[.]” Terry v. Ohio, 392 U.S. 1, 17, 88 S. Ct. 1868 (1968).
Defendants argue that, because the plaintiffs were on a public thoroughfare and,
therefore, within the view of the public eye, there can be no intrusion upon seclusion.
State Defendants’ Br. in Support of Motion to Dismiss (docket no. 12-1). The defendants
rely on various cases stating that there is a reduced expectation of privacy while operating
a motor vehicle on a public road, such as Davenport v. City of Corning, 742 N.W.2d 605
(Iowa Ct. App 2007) and Figured v. Paralegal Technical Servs., Inc., 555 A.2d 663,
667 (N.J. 1989). State Defendants’ Br. in Support of Motion to Dismiss, 11 (docket no.
12-1); Defendant Dorhout-Van Engen’s Brief in Support of Motion to Dismiss, 4 (docket
no. 6-1). It is true that the plaintiffs’ privacy was not invaded when the defendants viewed
them from outside their car. But, here, the defendants stopped the plaintiffs and searched
28
Wilson’s person and his truck without a warrant, probable cause, or other applicable
exception to the warrant requirement. This intentional intrusion could be deemed highly
offensive to a reasonable person. Regardless of whether they had a reduced expectation
of privacy by being on a public road, it cannot be said that they had no expectation of
privacy in regard to the interior of their vehicle or to Wilson’s person. A claim has facial
plausibility when the plaintiffs plead factual content that allows me to draw the reasonable
inference that the defendants are liable for the misconduct alleged. The plaintiffs have
done so here.
The plaintiffs complied with the administrative requirements of the ITCA. Lamp
and Dorhout-Van Engen were acting within the scope of their employment for the state
of Iowa. According to Godfrey, the court shall substitute the state of Iowa as the
defendant in lieu of state employees in those circumstances. Godfrey, 847 N.W. 2d 578,
586 (Iowa 2014).
Therefore, the state of Iowa is substituted as the sole defendant for Count IV of
invasion of privacy and defendants’ Motions to Dismiss this claim, as against Lamp and
Dorhout-Van Engen, are granted in part.
IV.
CONCLUSION
Any claims arising from 42 U.S.C. § 1981, which was not plead as a separate
count, but alleged generally to support Jurisdiction and Venue, are not sufficiently
pleaded. Therefore, defendants’ Motion to Dismiss any claims arising from § 1981 is
granted as to all defendants.
As to Count I for unreasonable search and seizure, although plaintiffs have not
named the state of Iowa as a defendant in this claim, the state of Iowa has nevertheless
requested that the claim be dismissed. As this claim was never alleged, I do not grant
29
the defendants’ Motion to Dismiss Count I as to the state of Iowa, but note that it is not
a defendant to this claim for the sake of clarity.
As to Count II for excessive force, the plaintiffs have alleged two underlying
sources of authority. Because the Iowa Supreme Court is currently considering this
matter of state law in Conklin v. State, 863 N.W.2d 301 (Iowa App. 2015), I reserve
ruling on defendants’ Motions to Dismiss Count II as it arises from a violation of the
Iowa Constitution. Because this claim may be viably brought pursuant to 42 U.S.C.
§ 1983 and the United States Constitution, defendants’ Motions to Dismiss Count II, as
it arises in this context, are denied.
As to Count III for intentional infliction of emotional distress, the state of Iowa is
substituted as a defendant for Lamp and Dorhout-Van Engen pursuant to the ITCA.
Therefore, the defendants’ Motions to Dismiss as against Lamp and Dorhout-Van Engen
are granted in part.
As to Count IV for invasion of privacy, the state of Iowa is substituted as a
defendant for Lamp and Dorhout-Van Engen pursuant to the ITCA. Therefore, the
defendants’ Motions to Dismiss as against Lamp and Dorhout-Van Engen are granted in
part.
As to Count V for negligence, because the plaintiffs did not exhaust their
administrative remedies in accordance with the ITCA, the defendants’ Motions to Dismiss
are granted as against all defendants.
As to Count VI for “Iowa Tort Claims Act,” because the ITCA is not, itself, a
cause of action, defendants’ Motion to Dismiss is granted as against all defendants.
30
IT IS SO ORDERED.
DATED this 3rd day of November, 2015.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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