Lee v. Dawson et al

Filing 66

ORDER granting 50 Motion for Summary Judgment by Defendants James Fouts, Onawa, City of and 51 Motion for Summary Judgment by Defendant State of Iowa and Daniel Dawson. Because this order disposes of all pending claims, judgment shall enter in favor of the defendants and against the plaintiff. The Clerk shall close this case. Signed by Chief Judge Leonard T Strand on 7/12/2019. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
RANDY LEE,
Plaintiff,

No. C17-4073-LTS

vs.
MEMORANDUM
OPINION AND ORDER

DANIEL DAWSON, et al.,
Defendants.

___________________________
I.

INTRODUCTION

This case is before me on a motion (Doc. No. 50) for summary judgment by
defendants James Fouts, then Assistant Chief of Police for the City of Onawa, and the
City of Onawa (together, the municipal defendants), and a motion (Doc. No. 51) for
summary judgment by defendants Daniel Dawson and the State of Iowa (together, the
state defendants).

Plaintiff Randy Lee has filed a resistance (Doc. No. 63) and the

defendants have filed replies. See Doc. Nos. 64-65. I find that oral argument is not
necessary. See Local Rule 7(c).
II.

PROCEDURAL BACKGROUND

This action stems from the execution of a search warrant on September 13, 2015.
Lee initiated this lawsuit on September 11, 2017, by filing a petition (Doc. No. 3) in
Iowa District Court for Monona County against the municipal defendants. On September
12, 2017, Lee filed an amended petition (Doc. No. 3-1) against the same defendants.
On November 27, 2017, he added the state defendants. See Doc. No. 3-2. He
also identified the following counts for the first time:
 Count I – Procedural and Substantive Process – Iowa State Constitution
Article I, § 8 Against All Defendants

 Count II – Procedural and Substantive Due Process – Iowa State
Constitution Article I, §§1 and 9 Against All Defendants
 Count III – Violation of Plaintiff’s Federal Constitutional Rights – United
States Constitution 2nd and 4th Amendments
Doc. No. 3-2. The municipal defendants removed the case to this court on December
13, 2017, based on federal question jurisdiction pursuant to 28 U.S.C. § 1331. See Doc.
No. 1. The state defendants consented to the removal. See Doc. No. 9.
Lee filed an amended complaint (Doc. No. 26) on March 20, 2018. The amended
complaint, brought pursuant to 42 U.S.C. § 1983, alleges that Dawson and Fouts
conducted a search on September 13, 2015, pursuant to a search warrant that lacked
probable cause. Doc. No. 26 at 2. Lee asserts the following claims:
 Count I – Unreasonable Search and Seizure1
 Count II – Second Amendment – U.S. Constitution and Article I, Section 9 –
Iowa Constitution
Id. at 5-6.
The state defendants filed a pre-answer motion (Doc. No. 28) to dismiss, which I
granted in part and denied in part. I granted it as to: (1) Lee’s § 1983 claims against the
state defendants based on alleged violations of the United States Constitution and (2) his
claim in Count I alleging a violation of article I, section 8 of the Iowa Constitution based
on the alleged lack of probable cause to support the search warrant. I denied it as to the
remaining state law claims in Count I and Count II, meaning the following counts are at
issue in this motion as to both defendants:

1

In the text of this count, Lee alleges that the search and seizure violated the Fourth Amendment
of the United States Constitution and article I, section 8 of the Iowa Constitution. He also alleges
that three hours of interrogation violated his rights to enjoy life and liberty and to safety and
happiness under article I, section 1 of the Iowa Constitution.

2

 Count I
o A violation of article I, section 1 of the Iowa Constitution
o A violation of article I, section 8 of the Iowa Constitution based on an
alleged unauthorized search of his residence and seizure of his service
weapon.
 Count II - a violation of article I, section 9 of the Iowa Constitution based on
seizure of his service weapon
Both counts also consist of § 1983 claims against the municipal defendants based on
alleged violations of the Second and Fourth Amendments.
III.

RELEVANT FACTS

The following facts are undisputed for purposes of defendants’ motions for
summary judgment unless otherwise noted:2
Prior to the alleged incident that underlies the law enforcement action in this case,
Lee and the victim had a romantic relationship. Fouts was aware of this relationship
because he had discussed it with the victim in the past. Fouts also has a close relationship
2

Lee responds to each of defendants’ statements of fact as follows: “Plaintiff disputes Onawa
[Defendants’ Statement of Undisputed Material Facts] #7, 10, 12, 13, 14 and 16 as more fully
explained in Plaintiff’s Statement of Material Facts” and “Plaintiff disputes State [Defendants’
Statement of Undisputed Material Facts] #6, 7, 8 and 9 as more fully explained in Plaintiff’s
Statement of Material Facts.” Lee’s response fails to comply with Local Rule 56(e) and 56(b).
Local Rule 56(e) requires appendices to be numbered consecutively at the bottom of each page
and all references to supporting documents in a brief or statement of material fact be to a specific
page number in an appendix. Local Rule 56(b) requires that each statement of material fact not
expressly admitted be supported by references to specific documents in support of the party’s
refusal to admit the statement. The state defendants ask those facts to be deemed admitted. See
Local Rule 56(b) (“The failure to respond to an individual statement of material fact, with
appropriate appendix citations, may constitute an admission of that fact.”). These facts concern
whether Lee’s firearm was seized, who seized it, how long Lee’s interview lasted, who was
present, whether Lee was told he was free to leave during the interview and a civil protective
order entered on October 14, 2015, prohibiting Lee from possessing a weapon other than a
service weapon in the course of his official duties. See Doc. No. 51-2 at 2-3. In discussing
these facts, I will note Lee’s position and whether or not the record supports it.

3

with the victim’s family and worked with the victim’s mother. Doc. No. 64 at 1. Lee’s
supervisor, Monona County Sheriff Jeff Pratt, was also aware of the tumultuous
relationship and, after speaking to the victim or her family concerning an incident in June
2015, instructed Lee not to have contact with the victim or her family. Id. at 1-2. Shortly
before the incident in this case, Lee alleges his vehicle tires were slashed at his personal
residence and that he had considered seeking a protection order against the victim,
believing she was the culprit. Id. Fouts denies knowledge of this incident or that Lee
had personal and professional issues with one of Fouts’ family members regarding a highspeed chase in which Lee and the relative were allegedly involved.
The incident in this case arose on September 13, 2015, when the victim contacted
an individual she had seen the previous day and reported that she and Lee had nonconsensual sex. Doc. No. 63-1 at 3. The victim also told her friend. Id. The three met
and contacted the victim’s mother, who met up with them. Id. at 4. The victim’s mother
then called Monona County Deputy Sheriff Jeremy Bellis and reported the incident.
Bellis contacted his supervisor, Sheriff Pratt, who instructed him to contact Fouts. Fouts
was off-duty but met Bellis at his personal residence and discussed the claims of nonconsensual sex between the victim and Lee. Doc. No. 63-1 at 4. Bellis and Fouts went
to go meet the victim and her mother. Id.
Fouts met with the victim privately and recorded the interview, which lasted
approximately 25 minutes. Id. He arranged for the victim to undergo a sexual assault
examination at Mercy Medical Center in Sioux City, Iowa. Id. Fouts also informed the
victim she would need to provide a written statement, however he never obtained one.
Doc. No. 64 at 6. Lee alleges that during the interview, Fouts made multiple comments
to the victim that were inappropriate and demonstrated animus towards Lee. Defendants
deny these comments for lack of support by the cited materials, which is a transcript of
the interview. The alleged comments or subjects of the comments include:
 Lee has a known drinking and drug problem
4

 It was Fouts’ responsibility to investigate and charge Lee and that a DCI
agent would not be needed because it was a cut and dry case
 Various comments about Lee’s state of mind
 Various comments that coaxed and developed facts that the victim did not
report
 Comments about the victim’s and Lee’s relationship, such as Lee was
controlling the victim
 Fouts had known the victim all her life, so she should feel comfortable
talking to him

Id. at 5-6.3

 Fouts had his own relationship issues that the victim and her mother knew
about

Fouts consulted the Chief of Police for the City of Onawa and was directed to
contact the Iowa Department of Criminal Investigation (DCI). Fouts also contacted
Sheriff Pratt and met with the County Attorney. Fouts expressed his opinion that search
warrants should be obtained. Doc. No. 64 at 2. Three DCI agents arrived, including
Dawson. Fouts shared the interview recording with him.4 Fouts did not provide Dawson
with a written report or investigation, although he states he would typically do so. Doc.
No. 65-1 at 3-4. Fouts denies that he discussed the relationship history between Lee and
the victim. Doc. No. 64 at 3. Dawson states Fouts told him that Lee and the victim had
an on-again, off-again relationship. Doc. No. 65-1 at 3. Dawson did not conduct any
interviews or inquire about the victim’s criminal history or credibility. Doc. No. 54 at
3; Doc. No. 65-1 at 4-5. Dawson drafted the search warrant applications for Lee’s person
and residence. He states he did so with the assistance of Fouts. Doc. No. 65-1 at 5.

3

As noted above, the interview was transcribed and speaks for itself. See Doc. No. 63-3 at 14148.

4

Dawson does not indicate whether he listened to the recording. See Doc. No. 65-1 at 3.

5

The application included a single affidavit. Id. Fouts did not review the search warrant
applications or affidavit. Doc. No. 64 at 3.
Lee takes issue with several facts alleged in the affidavit, arguing that they are
inconsistent with the victim’s recorded interview. The municipal defendants deny nearly
all of Lee’s assertions as unsupported by the cited materials. See Doc. No. 64 at 3-4.
The state defendants note that many of the victim’s statements are ambiguous, citing to
quotations from the transcript of the interview. Doc. No. 65-1 at 6-10. According to
Lee, the inconsistencies consist of the following:
 The affidavit alleges that Lee used his service weapon to threaten the victim
and wanted the victim to shoot/kill him with the service weapon. The
victim also reported there would be a second firearm located on a night
stand near Lee’s bed. However, the victim stated she did not believe that
firearm was Lee’s service weapon and the only firearm was located near
Lee’s bed. The victim also stated numerous times that she did not feel
threatened by the firearm and that Lee did not point or threaten her with it.
See Doc. No. 63-1 at 9.
 The affidavit alleges that Lee forced the victim to drive them to her parents’
house to retrieve more alcohol or that Lee forced the victim to return to his
residence. However, the victim never stated that Lee forced her to drive
them anywhere and admitted that Lee believed he was in danger.
 The affidavit alleges that Lee consumed a bottle of wine and while he was
consuming it, became mad at the victim and threw a wine glass against the
back door. However, the victim stated that Lee threw the empty wine glass
the following morning or afternoon as she was leaving. She also never
stated the wine glasses were thrown at her or that she felt threatened.
 The affidavit alleges that Lee forced the victim to remove her clothing and
made her get into his bed at night, but they did not have sex. The victim
never stated she was forced to remove her clothing, but that she did not
want to have sex because Lee was drunk so they went to sleep. The victim
woke up the next morning and Lee was going through her phone.
 The affidavit alleges that Lee’s tires were slashed and he had installed
security cameras. However, this information did not come from the victim
6

as indicated in the affidavit because she never mentioned it.5
 The affidavit alleges that Lee inserted his penis into the victim’s vagina and
began having sex with her and the victim did not want to have sex, so she
headbutted Lee. It also alleges that Lee’s nose was bleeding and he laughed
and continued sexually assaulting the victim. However, the victim never
stated that Lee’s penis was inserted into her vagina or that Lee laughed
when she headbutted him and continued to have sex with her against her
will. The victim did state that she “latched onto him” during sex and never
stated that the sex was not consensual.6 The victim stated she did not want
to continue their relationship of having sex and getting emotionally hurt.
 The affidavit does not report the victim’s concessions or that fact that she
stated she did not expect her allegations to go “to this level.” She also did
not intend for her mother to contact the police and stated she did not want
to submit to a sexual assault examination.7
Doc. No. 63-1 at 8-14.

5

The state defendants note that Dawson’s affidavit indicates he obtained the information therein
from Fouts. Doc. No. 65-1 at 8.

6

The state defendants note that the victim said Lee “smiled” after she headbutted him and she
was unsure whether Lee penetrated her vaginally, but he did penetrate her anally. Doc. No. 651 at 9. They also note the victim stated she did not want to have sex with Lee and felt he forced
himself on her. Id.
7

The state defendants note that the victim agreed to a sexual assault examination and the other
statements cited by the victim are ambiguous. Doc. No. 65-1 at 9. Indeed, Lee reads into other
aspects of the interview stating that the victim did something for a particular reason when that
reason is not apparent from the interview itself. See Doc. No. 63-1 at 14 (“[The victim] stayed
at Plaintiff’s residence, went through Plaintiff’s cell phone and called Plaintiff’s current girlfriend
to brag that she had sex with Plaintiff.”; “[The victim] made concessions regarding her
motivations to falsely accuse Plaintiff of rape because Plaintiff threatened to help the father of
[the victim’s] child to get custody if [the victim] did not stop calling his current girlfriend.”).
The state defendants note that the statements cited in support of these assertions reflect that the
victim called “the girl he’s been talking to” and that she believed Lee would take steps to have
the custody of her child taken away if she reported the sexual assault or continued to contact his
current girlfriend. See Doc. No. 65-1 at 10. The affidavit is in the record and speaks for itself.
See Doc. No. 63-4 at 35-36.

7

At approximately 8:30 p.m., Fouts and Dawson went to a state court magistrate’s
residence to present the search warrant applications. Id. at 14. The magistrate did not
ask them any questions.8 Id. Dawson marked that an investigative and police report was
attached to the search warrants, but only his affidavit was attached. Lee also claims that
Dawson did not inform the magistrate that Fouts was the only source of information
supporting the warrant and did not inform the magistrate about Fouts’ credibility. Doc.
No. 63-1 at 15. The affidavit clearly stated how the information was obtained, including
that Dawson obtained the information from Fouts, who obtained it from the victim. Doc.
No. 65-1 at 11. The state defendants also note that Lee cites nothing in the record
indicating any issue with Fouts’ credibility. Id. Fouts and Dawson did not inform the
magistrate judge that the search warrant endorsement was not properly completed because
she did not mark paragraphs 4, 5, or 6 relating to probable cause. Dawson notes he did
not point out the scrivener’s errors because he did not notice them at the time. Doc. No.
65-1 at 12. Fouts cites his deposition in which he explained that he would not have seen
that part of the application because it is turned into the clerk’s office and the officers
would have walked out only with the search warrants. Doc. No. 64 at 4 (citing Doc.
No. 63-3 at 6).
At approximately 8:45 p.m., Lee was working on-duty as a uniformed Sheriff’s
Deputy when he received a call from Sheriff Pratt asking him to report to the Monona
County Law Enforcement Center. Doc. No. 63-1 at 15. Lee contends Sheriff Pratt and
DCI special agents executed the search warrant on his person and seized his service
weapon, officer belt and cell phone. Id. The state defendants note that Lee testified at
his deposition that he surrendered his service weapon to Sheriff Pratt in the presence of
the special agents. They state the special agents did not seize his service weapon pursuant
to a warrant and that the weapon (which was owned by his employer) was returned to

8

The state defendants note that Dawson and Fouts could not recall what questions, if any, the
magistrate asked. Doc. No. 65-1 at 11.

8

Lee when he eventually returned to work after being placed on administrative leave.
Doc. No. 65-1 at 12-13. The municipal defendants agree that the service weapon was
not seized pursuant to a warrant. Doc. No. 64 at 5. Lee contends that a buccal swab
and photographs of him were taken after an interrogation.

Doc. No. 65-1 at 16.

Defendants deny that it was an interrogation, stating that it was a voluntary interview.
See Doc. Nos. 64 at 5; 65-1 at 13, 14.
Lee was questioned by DCI Special Agents Chad Fiedler and Phil Kennedy. Doc.
No. 51-2 at 3. Lee claims the interview lasted an unreasonable amount of time (two
hours) and that the special agents advised him he should not obtain an attorney. Doc.
No. 63-1 at 17. Defendants state it lasted just under two hours. Doc. Nos. 64 at 5; 651 at 14. They also deny that Lee was told not to obtain an attorney for lack of supported
evidence. Doc. Nos. 64 at 5; 65-1 at 14-15.9 Lee claims that he did not learn of the
allegations against him until halfway through the interview. Id. Defendants deny this,
stating Lee knew why he was being interviewed because the special agents discussed the
nature of the interview at the beginning. Doc. No. 65-1 at 15.10 Neither Fouts nor
Dawson were present during the interview. Id. Lee was told he was free to leave at any
time. Doc. No. 51-2 at 3.
Lee claims he did not learn about the search warrant until he requested that
defendants collect evidence from his residence and person. Doc. Nos. 63-1 at 17; 65-1
at 15. The agents informed Lee the search warrant was sealed, but that they would

9

The interview is transcribed and speaks for itself. See Doc. No. 63-3 at 67-140.

10

The transcript indicates the agent told him, “we’re here to talk to ya about some allegations
that were made um reference last night and today.” Doc. No. 63-3 at 68. After getting Lee’s
basic information, the agent said, “Well obviously you know why we’re here” and Lee
responded, I was gonna get a protection order or a no contact order on her.” Id. at 70-71. The
transcript indicates that mid-interview Lee asks “Am I being accused of rape? Is that . . . is that
what uh . . . what this issue is or . . .” and the special agent responds, “Yeah. That is what
she is accusing you of. That this was not consensual,” to which Lee responds, “Holy fuck.”
Doc. No. 63-3 at 103.

9

provide copies to Lee. Lee received the endorsed search warrant without a copy of the
affidavit or supporting documentation. Doc. No. 65-1 at 13. He also received the receipt
inventory for property seized from his person. Id. at 14. Lee claims the agents did not
advise him of the scope of the search warrant or the items authorized to be seized from
the search warrant. Id. The state defendants deny this, noting that the documents cited
by Lee indicate the special agents were making copies of the search warrants to provide
to Lee. Doc. No. 65-1 at 16. At the end of the interview, Lee asked if the officers were
going to seize his other, non-service weapon and the special agents responded, “I think
so.” Id. Lee asserted his Second Amendment rights and the agents directed Lee to
inquire with Sheriff Pratt. Id. After the interview, Lee was placed on administrative
leave effective immediately. Id. at 17-18. He signed a letter acknowledging this at
approximately 10:30 p.m. on September 13, 2015. Id. at 18.
At approximately 9:30 p.m. that evening, Dawson, Fouts and another Onawa
police officer executed the warrant on Lee’s residence. Doc. Nos. 65-1 at 13; 51-2 at 2.
They seized bed sheets, a comforter, broken glass, a trail camera and a Glock 22 pistol.
Doc. No. 65-1 at 16-17. Fouts and Sheriff Pratt were responsible for receiving and
logging the evidence obtained from the search warrants. Doc. No. 64 at 5.
With regard to the inventory from the search warrant, the return of service for
Lee’s residence and vehicle was not endorsed by the magistrate. Doc. No. 65-1 at 17.
Dawson documented, signed and filed with the court the following three items seized
from Lee’s person: (1) cell phone, (2) buccal swab and (3) photographic images of
injuries. Id. The search warrant inventory and return of service for Lee’s person was
endorsed by the magistrate. Id. Lee claims that the DCI special agents and Sheriff Pratt
executed the search warrant on Lee’s person and seized his service weapons and
magazines. Doc. No. 63-1 at 18-19. Defendants deny that Lee’s service weapons were
part of the search warrant and state that Lee surrendered them to Sheriff Pratt. Doc.
Nos. 64 at 5, 6; 65-1 at 18. Lee notes that the search warrant inventory provided to the
10

magistrate and filed with the court does not identify Lee’s service weapons. Doc. No.
63-1 at 19.
None of the evidence (including the victim’s sexual assault examination results,
Lee’s buccal swab or bed sheets) was submitted for testing and Lee’s cell phone was
never searched for evidence. Doc. No. 63-1 at 20. The state defendants note that the
buccal swab and sheets were not submitted for testing because Lee admitted that he had
sex with the victim. Doc. No. 65-1 at 20. Dawson could not recall whether Lee’s cell
phone was searched. Id.
Lee claims Dawson concluded the investigation around October 28, 2015, and
submitted the investigation report to the County Attorney, who decided not to issue
charges because Lee and the victim engaged in consensual sex and the victim was not
credible. Doc. No. 63-1 at 21. The municipal defendants note that the matter was
referred to the Attorney General and no reasons were provided for the decision not to
pursue charges. The state defendants agree that the cited documents do not indicate why
charges were not filed. Doc. Nos. 64 at 7; 65-1 at 21-22.
On September 14, 2015, Lee applied for a protection order against the victim. On
September 16, 2015, the victim applied for a protection order against Lee. Doc. No. 631 at 21. On October 14, 2015, a judge of the Iowa District Court for Monona County
found that both parties lacked credibility. Doc. No. 65-1 at 23. Lee was permitted to
possess and use firearms and ammunition, but only for use in the performance of his
official duties. Doc. No. 63-1 at 22. Lee’s personal property was returned to him on
October 31, 2016. Doc. No. 63-1 at 21. He claims his cell phone and trail camera were
never returned to him. Doc. No. 63-1 at 21. Defendants deny this.
On October 19, 2015, Sheriff Pratt provided Lee with a letter outlining the terms
and conditions for Lee to return to work from administrative leave. Lee was required to
submit to a psychiatric examination, obtain clearance from a psychiatrist and complete a
drug and alcohol program in order to be considered for reinstatement. Doc. No. 63-1 at
22. He also could not have further problems with the victim or any witnesses from the
11

case. Id. Sheriff Pratt also arranged to have Lee’s service weapon kept in a lock box
for him to pick up when reporting for duty and he was to return the weapon to the lock
box at the end of his shift. Id. Lee submitted to a substance abuse assessment and mental
health evaluation wherein he was cleared to return to work. Id. He returned to work on
October 31, 2015 and complied with the restrictions regarding his service weapon. Id.
at 23. Lee resigned on November 23, 2015.
IV.

SUMMARY JUDGMENT STANDARDS

Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.” Id. Facts that are “critical”
under the substantive law are material, while facts that are “irrelevant or unnecessary”
are not. Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question.” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides “some metaphysical doubt as to the material facts,” Matsushita, 475
U.S. at 586, or evidence that is “merely colorable” or “not significantly probative,”
Anderson, 477 U.S. at 249-50, does not make an issue of material fact genuine.
12

As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49. The party moving
for entry of summary judgment bears “the initial responsibility of informing the court of
the basis for its motion and identifying those portions of the record which show a lack of
a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323). Once
the moving party has met this burden, the nonmoving party must go beyond the pleadings
and by depositions, affidavits, or otherwise, designate specific facts showing that there
is a genuine issue for trial. Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th Cir.
2005). The nonmovant must show an alleged issue of fact is genuine and material as it
relates to the substantive law. If a party fails to make a sufficient showing of an essential
element of a claim or defense with respect to which that party has the burden of proof,
then the opposing party is entitled to judgment as a matter of law. Celotex, 477 U.S. at
322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at
587-88. Further, I must give the nonmoving party the benefit of all reasonable inferences
that can be drawn from the facts. Id. However, “because we view the facts in the light
most favorable to the nonmoving party, we do not weigh the evidence or attempt to
determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo & Co., 383
F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine whether a
dispute about a material fact is genuine.” Quick v. Donaldson Co., Inc., 90 F.3d 1372,
1376-77 (8th Cir. 1996).
V.
A.

ANALYSIS

Article I, Section 1 of the Iowa Constitution
Lee claims his right to enjoy life, liberty, safety and happiness (as guaranteed by

article I, section 1 of the Iowa Constitution) was violated when he was subjected to “three
13

hours of interrogation.” See Doc. No. 26 at ¶ 32. He also alleges for the first time in
his resistance to the motions for summary judgment that his Miranda rights were violated
because they were never read to him. See Doc. No. 63 at 14-15. This argument will
not be considered as it was not alleged in Lee’s amended complaint. See Doc. No. 26;
Taha v. Engstrand, 987 F.2d 505, 507 (8th Cir. 1993) (concluding that district court
justifiably ignored claims made in response to summary judgment that were not made in
the complaint); N. States Power Co. v. Fed. Transit Admin, 358 F.3d 1050, 1057 (8th
Cir. 2004) (holding that a plaintiff may not “manufacture claims, which were not pled,
late into the litigation for the purpose of avoiding summary judgment”).
It is undisputed that Lee was interviewed for approximately two hours by two DCI
special agents on the evening of September 13, 2015. See Doc. No. 63-1 (in which Lee
states he was subjected to interrogation lasting over two (2) hours); Doc. No. 65-1 at 14
(in which the state defendants note the documents cited by Lee reflect that the interview
lasted just under two hours); Doc. No. 63-4 at 68, 140 (in which the transcript of Lee’s
interview states it began at 7:56 p.m. and ended at 9:54 p.m.). Neither Dawson nor
Fouts were present for the interview. See Doc. No. 63-3 at 68. The DCI agents also
informed Lee he was free to leave at any time. Id. Defendants argue they are entitled
to summary judgment based on their lack of participation in this event.
The inalienable rights clause (article I, section 1 of the Iowa Constitution) states:
“All men and women are, by nature, free and equal, and have certain inalienable rights
– among which are those of enjoying and defending life and liberty, acquiring, possessing
and protecting property, and pursuing and obtaining safety and happiness.” Iowa Const.
art. I, § 1. The protections under this clause are not absolute and are “subject to
reasonable regulation by the state in the exercise of its police power.” Honomichi v.
Valley View Swine, LLC, 914 N.W.2d 223, 235 (Iowa 2018) (citing Gacke v. Pork Xtra,
L.L.C., 684 N.W.2d 168, 176 (Iowa 2004)). “Police power refers to the legislature’s
broad, inherent power to pass laws that promote the public health, safety, and welfare.”
14

Honomichi, 914 N.W.2d at 235 (quoting Gravert v. Nebergall, 539 N.W.2d 184, 186
(Iowa 1995)). The court uses a two-step analysis in discussing these rights:
To justify the state in thus interposing its authority on behalf of the public,
it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference;
and, second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon
individuals.
Gravert, 539 N.W.2d at 186.
I find no violation of Article I, section 1 of the Iowa Constitution based on the
undisputed facts. Neither Fouts nor Dawson were involved in the interview. See Bailey
v. Lancaster, 470 N.W.2d 351, 359 (Iowa 1991) (“Officers who take no part in the
alleged acts of misconduct are entitled to escape liability as a matter of law.”). Moreover,
Lee’s only dispute (as alleged in the amended complaint) is based on the length of time
of the interview. Given that the undisputed evidence shows that Lee (a law enforcement
officer himself) was told he was free to leave the interview at any time and chose not to
exercise that right, I find that he voluntarily submitted to the interview. As a result, there
can be no constitutional violation. Defendants are entitled to summary judgment on this
claim.
B.

Article I, Section 8 of the Iowa Constitution
Lee alleges in Count I that defendants violated his rights under article I, section 8

of the Iowa Constitution when they searched his residence and seized his duty weapon.
See Doc. No. 26 at ¶¶ 31 and 32. Specifically, he alleges that: (1) the warrant lacked
probable cause without an endorsement regarding the complainant’s reliability,11 (2) it
11

I dismissed Lee’s other claim alleging a violation of article I, § 8 based on the alleged
unreliability of the search warrant due to the complainant’s credibility and certain technical
deficiencies as to the state defendants. See Doc. No. 39 at 15. The municipal defendants argue
this holding should apply equally to them. See Doc. No. 50-2 at 5.

15

authorized only the search of his person, not his residence (3) his service weapon was
unlawfully seized. Id. at ¶ 22.
Article I, section 8 of the Iowa Constitution provides:
The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable seizures and searches shall not be violated;
and no warrant shall issue but on probable cause, supported by oath or
affirmation, particularly describing the place to be searched, and the
persons and things to be seized.
Iowa Const., art. I, § 8.
With regard to the seizure of the weapon, defendants argue that Dawson and Fouts
did not seize Lee’s service revolver when executing the search warrant, but that Sheriff
Pratt directed Lee to hand it over. See Doc. No. 51-3 at 9 (“No, I did not seize his
service revolver . . . That would have been administrative decision with the sheriff that
night.”); 21-22 (in which Lee describes that Sheriff Pratt asked for his service weapon
upon Lee arriving to work and Lee handed it over). As evidence that the service weapon
was seized pursuant to a search warrant, Lee cites a “receipt of property.” See Doc. No.
63 at 13 (citing List of Items Seized, ONAWA 0474).12 He also states that he was not
placed on administrative leave until after the search warrants were executed and he had
been interrogated, which he contends weighs in favor of a finding that his work property
was seized in relation to the search warrant of his person. Regardless of whether Lee’s
service weapon was seized pursuant to a warrant or not, it was not seized by either of the
defendants. It is undisputed that the weapon was turned over to – or seized by – Lee’s
employer, Sheriff Pratt of the Monona County Sheriff’s Office. Neither Pratt nor the
12

The foundation for the ONAWA 0474 exhibit (Doc. No. 63-4 at 53) is unclear. It is not a
form and does not contain a date or signature. It lists 13 items (including Lee’s Smith & Wesson
service weapon), notes that Lee’s AR 15 service weapon was secured in cabinet #1 and lists the
victim’s cell phone number. The receipts of property from the search warrants do not list either
of Lee’s service weapons (a Smith & Wesson H&P .45 caliber handgun and an AR 15). See
Doc. No. 51-3 at 40, Doc. No. 63-4 at 51. The ONAWA 0474 exhibit is in the same font as
Fouts’ written report, but neither document references the other. See Doc. No. 63-4 at 3-11.
Neither defendant addresses the admissibility of this evidence in their replies.

16

county are named as defendants in this lawsuit. As such, Lee’s claim against defendants
of a violation of article I, § 8 of the Iowa Constitution based on seizure of his service
weapon is without merit. Defendants are entitled to judgment as a matter of law on this
aspect of Count I.
With regard to the alleged unconstitutional search of Lee’s residence, defendants
previously sought to have this claim dismissed by submitting the search warrant for his
residence and related application materials. See Doc. No. 28-1 at 14 (citing Exhibit A
(Doc. No. 28-2)). Lee objected to consideration of these materials on a motion to dismiss
and argued that Exhibit A was “not the same search warrant served on Lee.” Doc. No.
30-1 at 2. Because the amended complaint referred to only one search warrant and Lee
denied that Exhibit A (containing the search warrant for his residence) was part of the
warrant served on him, I declined to address the issue at that time. Defendants have now
submitted those same materials in support of the current motion (Doc. No. 51-3 at 2847). It is undisputed that there are two separate warrants signed by the magistrate (one
for Lee’s person and one for his residence) and that the same affidavit was used to procure
both. See Doc. No. 63-1 at 7-8. Lee no longer challenges the search of his residence
based on the alleged lack of a search warrant for the residence. Rather, he relies on his
argument that the warrants lacked probable cause.13
Lee argues the warrants lacked probable cause without the endorsement regarding
the victim’s and Fouts’ reliability. Doc. No. 63 at 6. He then goes on to argue why the
information from the victim was unreliable. Additionally, he argues that Fouts did not
provide reliable information because he harbored alleged animus towards Lee. Id. at 8,

13

Lee also introduces new allegations that are not included in his amended complaint. See Doc.
No. 26. These include allegations that defendants intentionally and knowingly or recklessly
provided false information to obtain the search warrants (a Franks violation) and that Lee was
wrongfully deprived of his seized property for more than a year and continues to be deprived of
his cell phone. See Doc. No. 63 at 8, 12, 14. Again, new allegations will not be considered.
See Taha, 987 F.2d at 507; N. States Power Co., 358 F.3d at 1057.

17

11. Lee also cites technical deficiencies in the warrant. Id. Lee’s amended complaint
(Doc. No. 26) alleges:
 The warrant was based on a complaint by a person Dawson and Fouts knew
to be unreliable having made prior untruthful allegations concerning Lee
 The search warrant did not cite any corroborative evidence to support the
claim made by the unreliable source
 The statement from the alleged victim was so unreliable it was not attached as
a reliable source to the search warrant documents
 Fouts took the statement from the unreliable source and neither he nor
Dawson did anything to investigate or verify the untruthful allegation
 The warrant referred to Exhibit B, but no such exhibit was attached
 The endorsement is incomplete and nonsensical. Paragraph 4 did not identify
the party providing the information upon which the search warrant was based
and failed to identify the source that was alleged to be reliable
 Paragraph 5 of the endorsement was not completed such that the judge signing
the search warrant actually made no finding of probable cause
 Paragraph 6 of the endorsement was not completed
Doc. No. 26 at 3-4. Because Lee did not allege that the affidavit contained knowingly
and intentionally false or recklessly made statements or that Fouts had alleged animus
towards Lee, I will not consider these arguments. See Taha, 987 F.2d at 507 (concluding
that district court justifiably ignored claims made in response to summary judgment that
were not made in the complaint).
My previous order (Doc. No. 39) on the state defendants’ motion to dismiss
addressed Lee’s arguments as to the reliability of the information in the affidavit and the

18

technical deficiencies.14 I found that nothing in the four corners of the search warrant
application raised concerns regarding the reliability of the complainant’s allegations and
that “the issuing judge ‘had a substantial basis for concluding probable cause existed’
absent the endorsement that contained the allegedly false statement.”15 Doc. No. 39 at
15 (quoting State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997)). See State v. Shanahan,
712 N.W.2d 121, 132 (Iowa 2006) (“We do not attempt to independently determine
probable cause but rather ‘merely decide whether the issuing judge had a substantial basis
for concluding probable cause existed.’”).
The test for probable cause is: “whether a person of reasonable prudence would
believe a crime was committed on the premises to be searched or evidence of a crime
could be located there.” State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987). The judge
must “make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him [or her], including the ‘veracity’ and ‘basis of knowledge’
of persons supplying hearsay information,” probable cause exists. Illinois v. Gates, 462
U.S. 213, 238 (1983). “Even though the magistrate need not make express findings of
credibility when a search warrant affidavit relies on hearsay from a named informant,
factors such as the veracity and basis of knowledge of such an informant are still relevant,

14

With regard to the endorsement, I noted that it was necessary only when the informant was
not named in the application and affidavits. Doc. No. 39 at 13. Because the victim was named
in the affidavit, I found that the endorsement was not critical to the probable cause determination.
Id. I went on to consider the reliability of the information according to seven factors identified
by the Iowa Supreme Court. Id. at 13-14 (citing State v. McNeal, 867 N.W.2d 91, 102-03 (Iowa
2015)).
15

That allegedly false statement was in paragraph 4 of the endorsement, which indicates that the
informant has given reliable information on previous occasions. Doc. No. 39 at 12 (“Lee’s
amended complaint appears to be alleging that, in addition to technical deficiencies, Dawson’s
sworn testimony regarding whether the complainant provided reliable information on previous
occasions was false.”); Doc. No. 63-4 at 27. As noted above, Lee did not allege in his amended
complaint that this misstatement was intentionally or recklessly made. Even if I were to consider
this argument, Lee has not produced any evidence that Fouts or Dawson knowingly and
intentionally or recklessly made a false statement.

19

if not controlling, when a reviewing court assesses ‘the totality of the circumstances.’”
Weir, 414 N.W.2d at 331.
Reliability “may appear by the very nature of the circumstances under which the
incriminating information became known.” State v. Drake, 224 N.W.2d 476, 478 (Iowa
1974). Information from a citizen informant (a witness to or a victim of a crime) is
generally reliable. State v. Post, 286 N.W.2d 195, 200 (Iowa 1979); United States v.
Wallace, 550 F.3d 729, 734 (8th Cir. 2008) (“Not only is more weight given to
information where officers meet face-to-face with the informant and judge her to be
credible, but law enforcement officers are entitled to rely on information supplied by the
victim of a crime, absent some indication the information is not reasonably trustworthy
or reliable.”). The totality of the circumstances must be considered in assessing the
reliability of the information. State v. Niehaus, 452 N.W.2d 184, 189-90 (Iowa 1990).
The reliability of the information provided should be analyzed under the following
factors:
(1)

whether the informant was named

(2)

the specificity of the facts detailed by the informant

(3)

whether the information furnished was against the informant’s penal interest

(4)

whether the information was corroborated by other information known to
law enforcement

(5)

whether the information was not public knowledge

(6)

whether the informant was trusted by the accused

(7)

whether the informant directly witnessed the crime or fruits of it in the
possession of the accused.

State v. McNeal, 867 N.W.2d 91, 102-03 (Iowa 2015). “In determining whether a
substantial basis existed for finding probable cause, [a reviewing court] is limited to
consideration of only that information, reduced to writing, which the applicant presented
20

to the court at the time of the application for the warrant.” State v. Davis, 679 N.W.2d
651, 656 (Iowa 2004) (citing Gogg, 561 N.W.2d at 363). Close cases are decided in
favor of upholding the validity of the warrant. Gogg, 561 N.W.2d at 364.
Prior to analyzing these factors, I note that the parties dispute how the information
made its way into Dawson’s affidavit. Fouts recalls that Dawson listened to the recorded
interview that Fouts had conducted with the victim. See Doc. No. 64 at 3. Dawson did
not state whether he listened to the recording. See Doc. No. 65-1 at 3. To the extent
this is a disputed fact, I do not find it to be material as the affidavit makes clear that Fouts
interviewed the victim and that Fouts told Dawson what happened. See Doc. No. 63-4
at 22 (“I then traveled to the Monona County Law Enforcement Center where I met
Onawa Assistant Chief of Police Jim Fouts and he told me the following. On Sunday,
September 13th 2015 Onawa Assistant Chief of Police Jim Fouts interviewed [the victim]
with regards to an alleged sexual assault that [the victim] has reported.”).
I previously found that four of the seven factors weighed in favor of a finding of
reliability when accepting Lee’s allegations as true for purposes of the state defendants’
motion to dismiss. Doc. No. 39 at 14-15. Those factors (1, 2, 5, 7) continue to weigh
in favor of a finding of reliability based on the undisputed evidence of what was presented
to the magistrate judge. I previously found that the mistaken endorsement (that the
application or sworn testimony supplied in support of the application established the
credibility of the information given by the informant because sworn testimony indicated
the informant had given reliable information on previous occasions) was not critical to
the probable cause determination because the victim was named in the affidavit. See
Doc. No. 39 at 13.
As I previously found, the majority of the factors weigh in favor of a finding of
reliability, particularly because the information came from the victim rather than some
other type of informant. Many of the facts Lee relies on to argue the warrant was not
supported by probable cause were not included in the affidavit or are inconsistencies
between the victim’s recorded interview and the affidavit. As mentioned above, Lee did
21

not allege that any omissions or misstatements in the affidavit were knowing and
intentional or reckless. While it may have been apparent from the affidavit that the
allegations were not corroborated by any other information known to law enforcement,
that is only one factor to consider in analyzing reliability.

Moreover, given the

circumstances, it is understandable that officers were not able to obtain corroborating
evidence without a search warrant. For these reasons and the reasons discussed in my
previous order (Doc. No. 39) the undisputed evidence establishes that the magistrate had
a substantial basis for concluding probable cause existed for both warrants despite any
deficiencies in the applications. Defendants are entitled to judgment as a matter of law
on this aspect of Count I.
C.

Article I, Section 9 of the Iowa Constitution
Article I, section 9 of the Iowa Constitution provides in relevant part that “no

person shall be deprived of life, liberty, or property, without due process of law.” Lee
alleges in Count II that defendants violated article I, section 9 by failing to disclose the
seized weapon on the inventory and return of service filed with the court. Doc. No. 26
at ¶ 37. He contends that because the weapon was not identified or listed in the search
warrant inventory, he could not seek a hearing for an immediate return of the weapon.
Id. ¶ 39.
As noted above, it is undisputed that Lee’s service weapon was “seized” (if at all)
by Monona County Sheriff Pratt, not defendants. Moreover, the only evidence Lee has
put forward that the service weapon was seized pursuant to a warrant is the ONAWA
0474 exhibit (Doc. No. 63-4 at 53), which has questionable admissibility. See supra
n.11; Fed. R. Civ. P. 56(c). Of course, if the service weapon was not seized pursuant
to a warrant, it would not need to be included on the inventory and return of service.
Because Lee has not put forth sufficient evidence from which a reasonable jury could
conclude the service weapon was seized by defendants pursuant to a warrant (obligating
them to disclose it on the inventory and return of service filed with the court), I find that
22

defendants are entitled to summary judgment on Count II based on article I, section 9 of
the Iowa Constitution.
D.

Qualified Immunity
The state defendants argue they are entitled to qualified immunity because they

exercised all due care to follow the law. In Baldwin v. City of Estherville, 915 N.W.2d
259, 260-61 (Iowa 2018), the Iowa Supreme Court addressed the following certified
question from this court: “Can a defendant raise a defense of qualified immunity to an
individual’s claim for damages for violation of article I, § 1 and § 8 of the Iowa
Constitution?” Baldwin, 915 N.W.2d at 260. The Court answered the question as
follows: “A defendant who pleads and proves as an affirmative defense that he or she
exercised all due care to conform with the requirements of the law is entitled to qualified
immunity on an individual’s claim for damages for violation of article I, sections 1 and
8 of the Iowa Constitution.”

Id.

Defendants asserted qualified immunity as an

affirmative defense in their answer. See Doc. No. 40 at 4. However, the question
remains whether “all due care” should be determined by the court or whether it is a
question for the jury.
Judge Bennett answered that question in Baldwin, noting that in other contexts,
the Iowa Supreme Court has concluded that qualified immunity is a question of law for
the court. Baldwin v. Estherville, Iowa, 336 F. Supp. 3d 948, 955-56 (N.D. Iowa 2018).
He also explained that the Iowa Supreme Court may adhere to the Eighth Circuit’s
approach in which “[q]ualified immunity is a legal question for the court, not the jury,
to decide in the first instance, based either on the allegations or, if material facts are in
dispute, on the facts found by the jury.” Luckert v. Dodge Cty., 684 F.3d 808, 817 (8th
Cir. 2012). Judge Bennett concluded that in the absence of genuine issues of material
fact, the court should decide the question of “all due care” qualified immunity at the
summary judgment stage. Baldwin, 336 F. Supp. 3d at 955 (citing Clinkscales v. Nelson
Sec., Inc., 697 N.W.2d 836, 846 (Iowa 2005) in which the court recognized that
23

“[q]uestions of negligence are ordinarily reserved for the jury,” but that summary
judgment is proper in “extraordinary circumstances.”).
Lee contends he has provided sufficient evidence that Fouts and Dawson acted
with malice and recklessness in investigating, obtaining and executing the search
warrants. See Doc. No. 63 at 16. Lee did not make these allegations in his amended
complaint. See Doc. No. 26. The state defendants argue that even if I did consider such
an argument, they would still be entitled to qualified immunity because the warrant
affidavit would still provide probable cause without the allegedly tainted information.
Doc. No. 65 at 4-5. This is a separate question from whether they are entitled to summary
judgment based on their affirmative defense of qualified immunity.
The relevant question for qualified immunity is whether Lee has demonstrated a
genuine issue of material fact as to whether Dawson exercised all due care to conform
with the law in investigating, obtaining and executing the search warrants. I find that
Lee has met this burden. When viewing the evidence in the light most favorable to Lee,
a jury could conclude that Dawson did not listen to the recording, did not speak to the
victim himself, did not interview other potential witnesses and did not inquire into the
victim’s credibility. These facts could support a finding that Dawson failed to exercise
all due care to conform with the law.16 As such, I find that the state defendants are not
entitled to summary judgment based on their affirmative defense of qualified immunity.

16

These same facts are insufficient to preclude summary judgment on Lee’s claim of a violation
of article I, section 8 of the Iowa Constitution because that issue concerns whether there is a
genuine issue of material fact as to whether the magistrate had a sufficient basis to conclude that
the warrant was supported by probable cause. Lee relied on the technical deficiencies in the
warrant, the alleged unreliability of the information provided by the victim and inconsistencies
between the warrant and the victim’s recorded interview. I found the relevant underlying facts
were undisputed, weighed in favor of reliability of the information and provided a substantial
basis for the magistrate to conclude that probable cause supported the warrants. This finding
has no bearing as to whether Dawson is entitled to qualified immunity concerning his actions in
preparing the search warrants. In other words, even though the magistrate had a substantial
basis for concluding the warrants were supported by probable cause based on what was presented

24

E.

Section 1983 Claims
Pursuant to 42 U.S.C. § 1983, Lee alleges violations of the Second and Fourth

Amendments to the United States Constitution against the municipal defendants.17 Similar
to Dawson, Lee has not specified whether he is suing Fouts in his official or individual
capacity. Therefore, it is assumed he is suing Fouts in his official capacity. See Johnson
v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (“[I]n order to sue a public
official in his or her individual capacity, a plaintiff must expressly and unambiguously
state so in the pleadings, otherwise it will be assumed that the defendant is sued only in
his or her official capacity.”). It is well established that “[a] suit against a public official
in his official capacity is actually a suit against the entity for which the official is an
agent.” Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006). It is also well
established that “a local government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents.” Monell v. Dept. of Social Servs. of City of New York,
436 U.S. 658, 694 (1978). “Section 1983 liability for a constitutional violation may
attach to a municipality if the violation resulted from (1) an ‘official municipal policy,’
(2) an unofficial ‘custom,’ or (3) a deliberately indifferent failure to train or supervise.”
Mick v. Raines, 883 F.3d 1075, 1079 (8th Cir. 2018).
Lee’s § 1983 claims are based on lack of probable cause supporting the search
warrants and failure to timely return Lee’s property. See Doc. No. 63 at 5-14. Lee’s
amended complaint does not include allegations related to any of the above three theories
of municipal liability, nor does the record support any of those theories. Because there
are no facts from which a jury could find municipal liability, the municipal defendants
are entitled to summary judgment on the § 1983 claims.

in the search warrant applications, it does not necessarily follow that those warrants were
prepared with all due care to conform with the requirements of the law.
17

I previously dismissed these claims as alleged against the state defendants. See Doc. No. 39
at 8-9.

25

VI.

CONCLUSION

For the reasons stated herein, the municipal defendants’ motion (Doc. No. 50) for
summary judgment and the state defendants’ motion (Doc. No. 51) for summary
judgment are granted. Because this order disposes of all pending claims, judgment shall
enter in favor of the defendants and against the plaintiff. The Clerk shall close this case.
IT IS SO ORDERED.
DATED this 12th day of July, 2019.

________________________________
Leonard T. Strand, Chief Judge

26