Timothy Lawyer v. City of Council

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1032
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Timothy Lawyer; Michael Lawyer, *
*
Plaintiffs - Appellants, *
*
v. *
*
City of Council Bluffs, a municipal *
corporation; * Appeal from the United States
* District Court for the Southern
Defendant, * District of Iowa.
*
John Clark, individually and in his *
official capacity as a Council Bluffs *
police officer; Dan Newby, individually *
and in his official capacity as a Council *
Bluffs police officer, *
*
Defendants - Appellees. *
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Submitted: December 12, 2003

Filed: March 26, 2004
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Before LOKEN, Chief Judge, MELLOY and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.

Timothy and Michael Lawyer appeal the district court's1 grant of summary
judgment in favor of police officers John Clark and Dan Newby in this lawsuit arising
from a traffic stop in Council Bluffs, Iowa. We affirm.

I.

On March 26, 1999, at approximately 2:24 a.m., Officer John Clark of the
Council Bluffs Police Department stopped Michael Lawyer for driving 85 miles per
hour in a 55 mile-per-hour zone. The encounter was videotaped with audio from
Officer Clark's police cruiser, leaving many of the facts in this case undisputed.
Michael, then age 17, was driving with his 21-year-old brother, Timothy Lawyer, in
the passenger seat. The siblings were traveling east along Interstate 80 while going
home to Wisconsin after a ski trip in Colorado.

After stopping the car, Clark approached on the passenger side of the vehicle.
He asked to see Michael's license, registration, and proof of insurance. As he shined
his flashlight inside the car, he saw Timothy zip up a small red pouch and place it in
the glove compartment. When Clark asked Timothy, "just out of curiosity," what was
in the bag, Timothy replied that it was nothing important. Clark asked Timothy
whether he would "mind if I take a look at it," and Timothy replied that he would
"rather not" show the bag to Clark. Clark then stated repeatedly that the contents of
the bag "looked like drug paraphernalia." Timothy asked Clark what kind of drug
paraphernalia he thought he had seen in the bag, but at that time, Clark specifically
identified only an Altoids container. Altoids are mint candies available in a small,
rectangular metal container. In his police report prepared after the incident, Clark
wrote that he also had observed in the pouch what he thought was a marijuana pipe.

1
The Honorable Ross A. Walters, Chief United States Magistrate Judge for the
Southern District of Iowa.

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 After twice requesting that Timothy permit Clark to look in the bag, Clark
eventually commanded Timothy, "Hand me the bag." When Timothy continued to
refuse, Clark said, "we can do it the easy way, or the hard way." When Timothy still
would not allow access to the bag, Clark demanded that Timothy exit the vehicle. He
repeated his command several times over approximately a ten second period, but
Timothy did not comply. Clark then stated that he would "start spraying pepper spray
into the car," and again demanded that Timothy exit the vehicle.

At this point, Clark reached over and opened the passenger side door. He told
Timothy, "It's entirely up to you. Open it up." Timothy then removed the red pouch
from the glove compartment, and emptied its contents. The bag contained only
candy, including the Altoids container that Clark had identified. One of the brothers
explained that the contents included various types of candy: Sour Patch Kids,
Winterfresh gum, and Fruit Roll-Ups.

Officer Dan Newby arrived at the scene during the encounter between Clark
and Timothy. Following Timothy's emptying of the pouch, Clark returned to his
patrol car to write Michael a citation for speeding and to confer with Officer Newby.
When Clark finished filling out the citation, he placed it on the hood of his police
cruiser. Clark approached the driver's side window of the Lawyer vehicle. He asked
Michael to exit the vehicle and sign the citation on the hood of his patrol car, where
he could be filmed by the officer's video camera. Michael refused to get out of his
vehicle, stating that he was cold, he did not want to be filmed, he was afraid of the
traffic, and he felt threatened by Clark.

Clark tried to explain to Michael that he would be arrested if he did not sign
the citation. Clark explained that each person he cited was required to exit his or her
vehicle to sign the ticket. Michael asserted to Clark on several occasions that he
wanted to sign the citation, but did not want to exit his vehicle to do so. Clark
continued to attempt to explain to Michael the possibility of arrest if he did not get
out and sign the ticket. During this period, Clark was interrupted numerous times by

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Michael and by Timothy, who was "counseling his brother not to leave the car."
(Brief of Appellants at 19). Newby shortly informed Clark that the officers had
received permission from their superior to arrest Michael for not signing the ticket.

At this point, Clark told Michael that he was under arrest, and asked Michael
to step out of the vehicle. Michael did not exit. Clark tried the door handle, but
found that the door was locked. Clark and Newby asked that the door be unlocked
at least nine times, but the door remained locked. Thereafter, Clark reached inside
Michael's open window to unlock and open the door. Michael's window then began
to roll up on Clark's arm. Newby stepped in to prevent the window from completely
rolling up, and threatened to break the window. As Newby held the window, Clark
reached for his pepper spray and began spraying inside the vehicle. Michael was
sprayed first; the substance also hit Timothy in the face when Michael turned his head
to avoid it.

The officers again demanded that the door be unlocked, after which both
Michael and Timothy got out of the car through their respective doors. The Lawyers
were placed on the ground and handcuffed. Clark informed the brothers that Michael
was being arrested for "failure to sign the ticket for the speeding violation," and
Timothy was being arrested for "interference." Michael and Timothy were both taken
to the back of Clark's police cruiser. Pursuant to Council Bluffs police department
policy, Officer Clark took the brothers to a local hospital to be examined and have
their eyes washed out. Thereafter, the Lawyers were taken to a juvenile detention
facility, where Michael was processed and released into the custody of Timothy.
Timothy was released upon his signing of a citation for disobedience to a police
officer and interference with official acts.

Timothy and Michael Lawyer brought suit against the City of Council Bluffs,
Officer Clark, and Officer Newby, based on both federal and state law. The district
court found that all of the Lawyers' claims arose out of three components of the traffic
stop and subsequent events: the search of the red pouch, the arrests, and the use of

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force by means of the pepper spray. The district court granted summary judgment for
the officers, as well as the City of Council Bluffs, on all counts. The Lawyers appeal
only the portion of the ruling relating to the two officers, alleging that the officers
were not entitled to qualified immunity, and that summary judgment was improperly
granted.

II.

"Under the doctrine of qualified immunity, state actors are protected from civil
liability when 'their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.'" Sexton v.
Martin, 210 F.3d 905, 909 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). A court engaged in a qualified immunity inquiry uses a two-step
process. First, the court asks, "Taken in the light most favorable to the party asserting
the injury, do the facts alleged show the officer's conduct violated a constitutional
right?" Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, if a violation is found,
the court must determine whether, in "the specific context of the case," the right was
clearly established. Id. For a right to be considered clearly established, the "[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right." Anderson v. Creighton, 483
U.S. 635, 640 (1987). We review a grant of summary judgment de novo, determining
"whether the record, viewed in a light most favorable to the non-moving party, shows
that there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law." Earnest v. Courtney, 64 F.3d 365, 366-67 (8th Cir.
1995).

A.

The Lawyers argue that Clark violated their clearly established rights under the
Fourth Amendment by searching the red pouch without sufficient justification. The
officers do not directly contest the district court's assumption that Timothy's emptying

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of the pouch was a "search" for purposes of the Fourth Amendment. Although Clark
did not physically empty the pouch, he did direct Timothy to produce or open the
pouch before it was emptied. Citizens are expected to obey commands from law
enforcement officers; indeed, Council Bluffs Ordinance 8.56.040 provides that "[n]o
person shall wilfully fail or refuse to comply with any lawful order or direction of a
peace officer," and a violation constitutes a misdemeanor. Thus, actions taken in
response to a demand under color of authority may constitute a search, even where
the officer conducts no physical search. United States v. Conner, 127 F.3d 663, 666
(8th Cir. 1997). While it could be argued that Timothy's decision to open the pouch
rather than comply with Clark's lawful command that he exit the vehicle amounted
to voluntary consent by Timothy, we believe there is a genuine issue of fact whether
a reasonable officer would have believed Timothy's action to be a response to Clark's
commands (and thus a search) or voluntary consent. See Pace v. City of Des Moines,
201 F.3d 1050, 1053 (8th Cir. 2000). Accordingly, we proceed with our analysis on
the assumption that Timothy's emptying of the pouch constituted a "search."

The Lawyers challenge the district court's conclusion that Clark had probable
cause to search the pouch. The district court relied on Clark's statement in his police
report, which was incorporated into his affidavit in support of the motion for
summary judgment, that he believed he saw in the pouch "a small, long multi-colored
object that [he] identified as a marijuana pipe." The court observed that Clark's police
report was "not controverted by affidavit or otherwise," and concluded that the
observations reported therein, together with Timothy's behavior during the encounter,
justified a search of the pouch.

The brothers do not address directly either Clark's statement that he thought he
had seen a marijuana pipe in the pouch, or the district court's conclusion that Clark's
police report was not controverted. They argue implicitly that Clark's report is not
credible, and that Clark's credibility is a genuine issue of fact for trial. The Lawyers
note that Clark never mentioned any incriminating evidence, such as a marijuana
pipe, during his encounter with Timothy at the vehicle or his contemporaneous

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discussions with fellow officers at the scene. They argue that we should consider
only the objects that Clark mentioned at the scene in determining whether there was
probable cause to search the pouch.

We reject the Lawyers' contention because they did not properly question the
credibility of Clark's police report in the district court. Defendants' statement of
material facts in support of their motion for summary judgment alleged that Clark
thought the red pouch contained drug paraphernalia, and incorporated by reference
Clark's description of the marijuana pipe in his police report. The Lawyers' response
to Clark's statement of fact was this: "Plaintiff qualifies Defendants' assertion that
Defendant Clark 'thought' he observed drug paraphernalia. Defendant Clark
affirmatively stated numerous times during the stop that he 'saw' drug paraphernalia.
[citation to videotape]." The Lawyers' response to the statement of material facts
never contested the essential fact that Clark "saw," or "thought" he saw, a marijuana
pipe. Under its governing local rule,2 the district court was thus entitled to deem that

2
Local Rule 56.1(b) for the Northern and Southern Districts of Iowa provides,
in pertinent part, with emphasis added:

A party resisting a motion for summary judgment must . . . file . . . the
following: . . .

A response to the statement of material facts, . . . in which the resisting
party expressly admits, denies, or qualifies each of the moving party's
numbered statement of fact . . . .

A response to an individual statement of material fact that is not
expressly admitted must be supported by references to those specific
pages, paragraphs, or parts of the pleadings, depositions, answers to
interrogatories, admissions, exhibits, and affidavits that support the
resisting party's refusal to admit the statement, with citations to the
appendix containing that part of the record. The failure to respond, with
appropriate citations to the appendix, to an individual statement of
material fact constitutes an admission of that fact.

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fact admitted in resolving the motion for summary judgment. See Northwest Bank &
Trust Co. v. First Illinois Nat'l Bank, 354 F.3d 721, 724-25 (8th Cir. 2003). Once it
is accepted that Clark reasonably thought he saw a marijuana pipe in the red pouch,
then there was probable cause to search the pouch, even though Clark turned out to
be mistaken. See Seiner v. Drenon, 304 F.3d 810, 812 (8th Cir. 2002); United States
v. Sanders, 196 F.3d 910, 913 (8th Cir. 1999); cf. Hill v. California, 401 U.S. 797,
803-04 (1971). We therefore reject the Lawyers' claim that the emptying of the pouch
violated the Fourth Amendment.

B.

The Lawyers presented four claims regarding alleged use of excessive force by
the officers: a federal claim under 42 U.S.C. § 1983 for alleged violation of their
rights under the Fourth and Fourteenth Amendments, and three state-law claims
alleging negligence, assault and battery, and intentional infliction of emotional
distress. We affirm the district court's grant of summary judgment for the appellees
on all of these claims.

A law enforcement officer may order the driver out of a vehicle during a lawful
traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1997). In this case, Officer
Clark directed Michael to get out of his vehicle to sign the citation. Michael refused
this lawful command, leading Clark to attempt to open the door, only to find it
locked. Michael ignored numerous requests that the doors be unlocked, at which
point Clark reached inside the vehicle through Michael's open window to unlock and
open the door. When he attempted to do so, the window began rolling up. Although
the Lawyers allege that Clark inadvertently rolled up the window, the district court
found that the brothers failed to present any evidence to support that claim.

Whatever the cause of the window rising, it was objectively reasonable for
Clark to believe that he was in immediate danger, as he faced the possibility that he
could be dragged down the road with his arm trapped in the window if the vehicle

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began to move. "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." Graham v. Connor, 490 U.S. 386,
396-97 (1989). Judging this situation "from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight," id. at 396, we agree with
the district court that the use of pepper spray against Michael was objectively
reasonable.

The Lawyers claim separately that Clark used excessive force when he hit the
passenger, Timothy, with pepper spray. We are not persuaded. There is no evidence
to suggest that Clark intentionally targeted Timothy for the application of pepper
spray. Clark submitted evidence that Timothy was hit accidentally when Michael
moved his head, and the Lawyers have not disputed this account. The Lawyers would
have us hold that police officers are not allowed to administer pepper spray inside a
vehicle when it is occupied by more than one person, because it is "foreseeable" that
non-offending parties may be affected. This is not the law, and we decline to
announce such a rule now. Such a restriction would preclude an officer from
protecting himself in dangerous situations. Accordingly, the district court properly
granted summary judgment for the officers on Timothy's claim of excessive use of
force.

C.

With respect to their arrests, the Lawyers asserted a § 1983 federal claim for
violation of their Fourth and Fourteenth Amendment rights, as well as a state law
claim for false arrest. We agree with the district court that appellees are entitled to
summary judgment on these claims.

The arrest of Michael was lawful. In the context of a traffic stop, the Fourth
Amendment permits a law enforcement officer to make a warrantless arrest if he has

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probable cause to believe the arrestee has committed an offense. This authority
extends even to cases involving minor offenses where the officer has the option of
issuing a citation. Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Iowa law provides that a juvenile who refuses to sign a citation "without
qualification" may be arrested. Iowa Code § 805.16(2). As noted, an officer may
demand that a driver exit his vehicle during a lawful traffic stop. Mimms, 434 U.S.
at 111. Michael refused Clark's lawful command to exit the vehicle for the purpose
of signing the citation. Because Michael placed the condition of remaining in his
own vehicle on the signing of the citation, his assent to signing was not "without
qualification." Therefore, Officers Clark and Newby had probable cause to believe
that Michael was subject to arrest for violation of the Iowa Code.

We agree with the district court that the officers are also entitled to summary
judgment on claims relating to the arrest of Timothy. Iowa law allows peace officers
to make warrantless arrests for "public offenses," which include municipal ordinances
with a penalty of a fine or imprisonment. See State v. Ceron, 573 N.W.2d 587, 592
(Iowa 1997); Iowa Code § 804.7. Timothy was cited for interference with official
acts and disobedience to a police officer, pursuant to Council Bluffs city ordinances.
The arrest was lawful, however, if there was probable cause to believe Timothy had
violated any applicable statute, even one not contemplated by the officers at the
moment of arrest. See, e.g., Arnott v. Mataya, 995 F.2d 121, 124 n.3 (8th Cir. 1993);
McNeely v. United States, 353 F.2d 913, 918 (8th Cir. 1965).

The district court held that Timothy's conduct was within the scope of the city
ordinance prohibiting interference with official acts, Council Bluffs Ordinance
8.56.045, and Iowa Code § 719.1, which covers the same subject. After oral
argument before this court, appellants furnished documents purporting to show that
a city ordinance entitled "Interference with official acts" was repealed on February
5, 1995, prior to the traffic stop in this case, and that the ordinance on which the
district court relied was not enacted until August 23, 1999, some five months after the

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traffic stop.3 Assuming the city ordinance was not in effect at the time of the arrest,
the actions of the officers were lawful nonetheless if there was probable cause to
believe that Timothy had violated the similar Iowa statute prohibiting interference
with official acts. Accordingly, we turn to that provision.

Iowa Code § 719.1(1) says a person commits the offense of interference with
official acts if he knowingly "resists or obstructs" the authorized acts of a peace
officer, but the Code excludes "verbal harassment" other than physical threats from
the definition of interference. See Iowa Code § 719.1(3).4 The parties thus debate
whether Timothy's conduct -- orally urging Michael to refuse a lawful command by
Clark to exit the vehicle -- amounts to "resist[ance]" or "obstruct[ion]" of the officer,
or merely "verbal harassment."

"The purpose of criminalizing conduct that interferes with official police action
is to enable officers to execute their peace-keeping duties calmly, efficiently, and
without hindrance." State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996). The key
question is whether the officer's actions were hindered. Id. One may "resist" an
officer under the Iowa statute without using physical force. See State v. Donner, 243
N.W.2d 850, 854 (Iowa 1976); State v. Brecunier, 564 N.W.2d 365 (Iowa 1997)
(upholding conviction for "resisting" officer under Iowa Code § 719.1 where
defendant shined flashlight into officer's eyes to blind him, and hid gun for which

3
Council Bluffs Ordinance 8.56.045, as furnished to the court by appellees,
reads, "A person who knowingly resists, interferes or obstructs anyone known by the
person to be a peace officer . . . commits a simple misdemeanor."
4
Iowa Code § 719.1(1) reads in pertinent part: "A person who knowingly resists
or obstructs anyone known by the person to be a peace officer . . . in the performance
of any act which is within the scope of the lawful duty or authority of that officer . . .
commits a simple misdemeanor." Iowa Code § 719.1(3) provides : "The terms 'resist'
and 'obstruct', as used in this section, do not include verbal harassment unless the
verbal harassment is accompanied by a present ability and apparent intention to
execute a verbal threat physically."

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officers were looking). Though still subject to the limitation of Iowa Code
§ 719.1(3), the term "obstruct" is considered broader than "resist," and "includes
putting obstacles in the path of officers completing their duties." State v. Hauan, 361
N.W.2d 336, 339 (Iowa Ct. App. 1984). While the Iowa courts have said that the use
of actual or constructive force is sufficient to support a violation of § 719.1, Donner,
243 N.W.2d at 854; State v. Turk, 595 N.W.2d 819, 822 (Iowa App. 1999), we have
found no case holding that the use of such force is required to establish a violation.
Only one published Iowa case even mentions the statutory exclusion of § 719.1(3),
and it does not inform us about the scope of the term "verbal harassment." See State
v. Smithson, 594 N.W.2d 1, 3 (Iowa 1999) (declining to reach whether defendant
engaged in resistance or obstruction when, in defiance of a police order to turn down
the volume of an outdoor concert, he led the crowd in a chant against the police
department).

We conclude that there was probable cause to believe that Timothy's conduct
violated the Iowa statute. His efforts to cause Michael to defy Clark's order
"obstructed" the officers by "putting obstacles in the paths of officers completing
their duties," Hauan, 361 N.W.2d at 339, and hindering their efforts toward an
orderly conclusion of the traffic stop. Cf. State ex rel. Bailey v. City of West Monroe,
418 So.2d 570, 574 (La. 1982) (arrest for resisting officer was lawful where mother
instructed daughter to refuse officer's lawful command that daughter provide
identification); People v. Gibbs, 253 N.E.2d 117, 119-21 (Ill. App. 1969) (upholding
conviction for obstructing officers in performance of duties where defendant advised
arrested suspects that police had no right to search them, and told suspects to enter
building so police could not search without a warrant, thus frustrating ability of
officers to complete arrests); People v. Cooks, 58 Cal. Rptr. 550, 551-53 (Cal. App.
Dep't Super. Ct. 1967) (where defendant urged suspect not to provide identification
to police officer who was searching for suspect in a robbery, defendant could be
prosecuted constitutionally under statute that punishes one who wilfully resists,
delays, or obstructs public officer). Timothy's actions contributed to Michael's refusal
to leave the car, and that refusal prevented the officers from following their ordinary

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and lawful procedure for issuing a speeding citation to Michael. The practical effect
of Timothy's conduct was no different than if he had physically restrained Michael
from exiting the car.

We do not believe Timothy's conduct was "verbal harassment." Timothy's
conduct did not involve taunting, criticizing, or leveling empty threats at the officers.
Indeed, the "verbal" statements at issue were not even directed to the officers; they
were aimed at influencing Michael to refuse a lawful command. We reject Timothy's
argument that he did not violate the statute simply because Clark faced no imminent
danger. While the statute provides that "verbal harassment" of the officers violates
the statute only if it is "accompanied by a present ability and apparent intention to
execute a verbal threat physically," Iowa Code § 719.1(3), the statute does not say
that all verbal conduct must portend imminent physical danger to be "obstruction" of
an officer in violation of the statute. We suspect, for example, that giving a false
name to an officer, see Simeon v. State, 778 So.2d 455, 456 (Fla. Dist. Ct. App.
2001); State v. Latimer, 687 P.2d 648, 652 (Kan. 1984), or providing an oral warning
to a suspect so that he may hide evidence or avoid apprehension, see Porter v. State,
582 So.2d 41, 42 (Fla. Dist. Ct. App. 1991), may well constitute a violation of
§ 719.1, even though the conduct is entirely "verbal" and non-threatening.
Accordingly, we hold that Timothy's arrest was lawful because there was probable
cause to believe he had violated Iowa Code § 719.1.

Even if an Iowa court were to conclude later that conduct such as Timothy's
does not violate the statute, the officers are entitled to qualified immunity. Police
officers are not expected to parse code language as though they were participating in
a law school seminar, and a reasonable officer certainly could believe that Timothy's
earnest efforts to induce Michael's defiance of a lawful command "obstructed" the
officer's duties. Given the lack of detailed judicial guidance on the interplay among
the statutory terms "obstruct," "resist," and "verbal harassment," we conclude that the
arrest of Timothy did not violate clearly established law. See Mahers v. Harper, 12
F.3d 783, 786 (8th Cir. 1993) (affirming the district court's grant of summary

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judgment in favor of prison guards, where guards' interpretation of a prison rule was
"not implausible," and no court had yet interpreted the rule).

We affirm the judgment of the district court.
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