Andrew Lennette, Individually and on behalf of C.L., O.L. and S.L., Minor Children v. State of Iowa, Melody Siver, Amy Howell, and Valerie Lovaglia

IN THE SUPREME COURT OF IOWA

No. 20–1148

Submitted January 19, 2022—Filed June 10, 2022

ANDREW LENNETTE, Individually and on behalf of C.L., O.L., and S.L., Minor
Children,

Appellant,

vs.

STATE OF IOWA, MELODY SIVER, AMY HOWELL, and VALERIE
LOVAGLIA,

Appellees.

Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,

Judge.

A father, who was temporarily ordered to vacate the family home based on

allegations of sexual abuse that were eventually deemed unfounded, appeals the

district court’s grant of summary judgment dismissing his constitutional and

common law tort claims against the State of Iowa and employees of the

department of human services. AFFIRMED.

Mansfield, J., delivered the opinion of the court, in which Christensen,

C.J., and Appel, Waterman, McDonald, and McDermott, JJ., joined. Appel, J.,

filed a concurrence. McDonald, J., filed a concurrence. Oxley, J., took no part in

the consideration or decision of the case.
 2

Martin A. Diaz (argued) of Martin Diaz Law Firm, Swisher, and Natalie H.

Cronk of Kennedy, Gelner, Cronk & Waterman, P.C., Iowa City, for appellant.

Thomas J. Miller, Attorney General, Jeffrey S. Thompson (argued),

Solicitor General, and Noah Goerlitz and Job Mukkada, Assistant Attorneys

General, for appellees.
 3

MANSFIELD, Justice.

I. Introduction.

Force should be right; or rather, right and wrong,

Between whose endless jar justice resides . . . .

William Shakespeare, Troilus and Cressida act I, sc. 3.

Our legal system is sometimes messy. Mistakes get made. But in the end,

our legal system usually stumbles to the right result.

A father going through a contentious divorce was accused by his young

daughter of sexual abuse. An experienced Iowa Department of Human Services

(DHS) social worker observed the forensic interview firsthand. She believed it was

credible, obtained additional information primarily from the mother, and sought

and obtained an ex parte court order requiring the father to leave the family

home. Months later, the ensuing adversary proceeding determined that the

allegation was unfounded and that the mother had “wanted [the father] out of

the house.” The DHS finding of abuse was set aside and, eventually, the father

obtained physical care of the children.

The father then sued the State of Iowa, the DHS worker, and her two

supervisors, alleging that they committed common law torts and constitutional

violations by initially accepting the child’s account of sexual abuse and not

discerning the mother’s scheme. These kinds of claims historically require a high

threshold of proof because we do not want to discourage social workers from

acting affirmatively and boldly to protect children. After discovery, the district
 4

court granted summary judgment to the defendants, reasoning both that

immunities applied and that, in any event, the claims failed on the merits.

On appeal, we agree that summary judgment was properly granted on the

merits. Specifically, the father’s claim of intentional interference with the

parent–child relationship fails because that claim applies to extralegal actions—

such as a parent absconding with a child—not to judicially-approved acts. The

father’s claim for intentional infliction of emotional distress fails because the

conduct here did not reach the level of an “outrage” necessary to sustain such a

claim. The father’s unreasonable search and seizure claim cannot succeed

because there was no showing that the DHS social worker falsified the affidavit

she submitted to the court or that the removal order would not have been granted

without her questioned statements. The father’s substantive due process claim

cannot go forward because DHS’s conduct does not “shock the conscience.” And

finally, the father’s procedural due process claim cannot prevail because the

father was in fact provided with adequate process—the same process that

ultimately cleared his name. Accordingly, we affirm the judgment of the district

court.

II. Background Facts and Proceedings.

Because we are reviewing a motion for summary judgment, we set forth

the facts in the light most favorable to the plaintiff. See Minor v. State, 819

N.W.2d 383, 389 (Iowa 2012).

This case has its origins in a hostile divorce proceeding and custody battle

between Andrew Lennette and his former wife, Holly. During their marriage, they
 5

had three children together: C.L., a son born in 2004; O.L., a son born in 2006;

and S.L., a daughter born in 2009.

By August 2014, Lennette’s marriage had deteriorated drastically. In

September, Holly took the three children and went to Arkansas to stay with her

parents. In response, Lennette filed for dissolution of marriage and asked the

court to order Holly to immediately return the children back to Cedar Rapids.

That request was granted, and Holly returned. On September 23, the court

decided that, for the time being, there would be joint legal custody of the children

without a primary physical caretaker. Both Lennette and Holly continued to

reside in the family home.

Throughout that fall, Lennette found himself accused by Holly of infidelity

and physically abusive behavior. Holly also made multiple appointments with

different doctors and therapists for herself and the children. Lennette alleges

that Holly was searching for a healthcare provider who would support her

escalating accusations against him. But no sexual abuse allegations surfaced

during this time period.

On January 5, 2015, Holly sent an email to a therapist at Grace C. Mae

Advocate Center (GCM), where Holly and all three children had received therapy

services. The email included a document written by Holly and titled, “Things I’ve

Thought Are Strange, Bad or Inappropriate.” The document raised allegations of

troubling behavior against Lennette, including allegations that strongly implied

sexual abuse. The next day, S.L. had a therapy appointment at GCM in which
 6

S.L. said that her brothers sometimes hit her in private areas. But when asked

if anyone else touched her private areas, S.L. confidently said, “No.”

On January 12, Holly went back to GCM. She stated that S.L. had made

detailed allegations of sexual abuse to her two days earlier. A GCM therapist told

Holly to report the abuse. DHS received a report of sexual abuse from GCM that

day. Later in the evening, Holly took S.L. to an emergency room to be evaluated.

S.L. was not questioned during that visit, but Holly was interviewed and

recounted what she had told GCM. The physician’s assistant who heard Holly’s

story called the allegations “questionable” in his report and later testified that he

“had some doubts,” primarily because Holly’s demeanor seemed “inappropriate”

for the situation.

The next day, on January 13, Holly took S.L. to be examined and

interviewed at the St. Luke’s Child Protection Center (CPC). S.L.’s physical exam

at the CPC showed no evidence of abuse. But during her forensic interview, S.L.

made serious allegations of sexual abuse. The report authored by the interviewer

did not include an assessment of S.L.’s credibility. S.L.’s brothers were also

interviewed at the CPC two days later and denied having been sexually abused.

Melody Siver, a DHS caseworker, was assigned to be the primary

investigator of the report concerning Lennette. Amy Howell supervised Siver, and

Valerie Lovaglia supervised both Siver and Howell. All three DHS employees were

subsequently named as defendants in this case.

Siver observed the CPC forensic interviews of the children, including the

interview where S.L. made accusations of sexual abuse against Lennette. She
 7

also separately interviewed Holly. Siver found S.L.’s CPC interview to be credible.

Thus, on January 16, she submitted an affidavit to the Linn County District

Court as follows:

There is a current assessment . . . alleging sexual abuse of [S.L.] by
her father, Andrew Lennette. [S.L.] was interviewed at the Child
Protection Center and reported sexual abuse by her father on more
than one occasion. She had knowledge that a child of her age could
not know otherwise. I found her interview to be credible. [S.L.] has
exhibited some sexualized behaviors recently.

Siver later admitted that the information about “sexualized behaviors” came

exclusively from Holly.

Siver’s affidavit concluded, “[I]t is believed that the children is(are) at risk

of their health and safety as well as to prevent further risk of abuse, this worker

respectfully requests that Andrew Lennette be Court Ordered to leave the

residence in order for the children to remain in their home.”

That day, the juvenile court issued an ex parte order that Lennette be

removed from the family home and have no contact with the minor children. The

court set a review hearing for one week later on January 23.

The Cedar Rapids Police Department (CRPD) and DHS contacted Lennette

to request interviews from him concerning the allegations. Through his attorney,

Lennette declined these requests. Lennette appeared at the January 23 hearing

with his attorney but informed the court that he was not ready to proceed. He

waived his right to a speedy hearing. He also agreed to continue the no-contact

order on the condition that he could have visitation with his sons. Lennette asked

for and received a copy of the DVD of S.L.’s CPC interview.
 8

In the following weeks, Lennette’s attorneys provided DHS with lists of

potential witnesses, affidavits from potential witnesses, records from the divorce

proceeding, and other exculpatory records and information. DHS did not follow

up on this information. Around the beginning of February, Lennette replaced his

attorney. Also during this timeframe, the CRPD decided not to pursue criminal

charges against Lennette, although Siver contends she was not aware of this

decision at the time.

On February 17, Lennette and his new attorney met with Siver and her

supervisor Amy Howell. In the interview, Lennette vigorously denied the

allegations and maintained that S.L.’s interview seemed theatrical and that she

was repeating things she didn’t understand or believe.

DHS still had not determined whether the allegations of sexual abuse were

founded or not. It therefore kept the matter on “addendum” status. Meanwhile,

S.L. was receiving ongoing therapy at GCM. In therapy, S.L. continued to state

that Lennette had molested her, although she made these statements in the

presence of her mother. On March 12, Siver spoke to S.L.’s therapist at GCM,

who stated that she did not recommend S.L. have visits with her father because

it would be detrimental to her progress. The next day, DHS made a determination

that the allegation of sexual abuse against Lennette was founded.

That same day, Lennette filed a renewed and amended emergency

application to vacate the no-contact order and the order requiring him to leave

the family home. On March 24, Lennette moved to expunge the abuse finding.

Trial was set for April 6 and 7 on these motions.
 9

The summary judgment record does not reveal why, but the trial that

began on April 6 did not finish immediately. Instead, it proceeded off and on

throughout the spring and summer. In total, approximately seventeen witnesses

testified. On December 23, the juvenile court issued a detailed ruling

determining that the sexual abuse allegation was “unfounded and should be

expunged from the central registry.” The court declined to adjudicate the

children as in need of assistance and found that no additional services were

needed through the juvenile court. The court added that it did not “have services

to remedy the problem of the animosity between the parents other than to hope

for a speedy divorce.”

In September 2016, the dissolution proceeding concluded with a final

decree. Lennette was granted sole physical care of the children.

Thereafter, Lennette, individually and on behalf of his children, brought

this action in the Linn County District Court against the State, Siver, Howell,

and Lovaglia.1 His claims centered on DHS’s failure to adequately investigate the

claimed sexual abuse before presenting it to the juvenile court and determining

that it was founded:

78. Before approaching the court, Ms. Siver made no effort to
speak with Grace C. Mae or any other health care provider, including
the ER staff, to corroborate the accuracy and consistency of the
history being provided by Holly or S.L.

1As required by the Iowa Tort Claims Act, Lennette first presented his claims to the State

Appeal Board. See Iowa Code § 669.5(1). He withdrew them once the six-month waiting period
had elapsed. Id.
We will refer to the government defendants hereafter collectively as “the State.”
 10

79. Before approaching the court, Ms. Siver made no effort to
research the history involving the divorce, nor to speak with Andy to
determine the reliability of any of the information being provided by
Holly.

80. In her Affidavit, Ms. Siver made the following false
statement: “[S.L.] had knowledge that a child of her age would not
know otherwise.” This was directly contradicted by the CPC
interview.

81. In her Affidavit, Ms. Siver made the following false
statement: “[S.L.] has exhibited some sexualized behaviors recently.”

82. In addition to the false statements made by Ms. Siver,
there was a failure by the IDHS investigators to provide the court
with significant exculpatory information, primary being the fact that
the parents had gone through the divorce process, no allegations of
physical or sexual abuse had been made, the court had held a
hearing in the divorce and had ordered that both parents have joint
custody, and the court had allowed Andy to remain in the home.

....

102. On March 13, 2015, the Department completed its report
and issued a report of “founded” sexual abuse of S.L. by Andy. This
finding was made despite making no effort to investigate after
January 26, 2015 and without contacting any of the people or
reviewing any of the documents provided by Andy.

The State initially filed a motion to dismiss. The district court dismissed

the negligence and breach of fiduciary duty claims, reasoning that DHS’s

governing statutes did not create a common law duty. The court denied the

motion as to all other claims, noting it was “extremely reluctant to dispose of this

case on a motion to dismiss.” The court added, “When the evidence in this case

has been further developed and if the court is then presented with a summary

judgment motion, the court may or may not reach the same conclusions.”

The State sought interlocutory review of the partial denial of its motion to

dismiss. We granted the application for interlocutory review, and we transferred
 11

the appeal to the court of appeals, which affirmed the district court’s ruling. See

Lennette v. State, No. 17–2019, 2018 WL 6120049, at *3–4 (Iowa Ct. App. Nov.

21, 2018).

Back in the district court, this action was consolidated with a separate

action brought by Lennette against GCM and the CPC. Lennette later dismissed

the CPC with prejudice, and GCM obtained summary judgment.

On April 21, 2020, the State moved for summary judgment on Lennette’s

remaining claims alleging tortious interference with the parent–child

relationship, intentional infliction of emotional distress, and constitutional

violations. The State asserted both that Lennette’s claims failed as a matter of

law and that they were barred by various immunities and defenses. On August

12, the district court issued a lengthy ruling granting summary judgment on

several overlapping grounds.

First, the court concluded that the State was entitled to absolute immunity

because the DHS employees were acting as “ordinary witnesses” whose actions

were “intimately associated with the judicial process.”2 Alternatively, qualified

immunity was available as to the constitutional claims because the DHS

employees did not violate any clearly established constitutional right.

Next, the court determined that the State had sovereign immunity under

the discretionary function exception to the Iowa Tort Claims Act (ITCA). See Iowa

Code § 669.14(1) (2017) (excluding the performance of a discretionary function

2The district court found there was no genuine issue of material fact as to whether Siver,

Howell, and Lavaglia were acting at all relevant times within the course of their employment.
 12

from the right of action granted in the ITCA). Alternatively, sovereign immunity

was available because Lennette’s claims were the functional equivalent of a

misrepresentation or deceit claim. See id. § 669.14(4) (excluding claims arising

out of misrepresentation and deceit from the right of action granted in the ITCA).

The court explained, “[A]t their root, Plaintiffs’ complaints are that Defendants

misrepresented information about the alleged abuse, or engaged in deception in

their statements to the juvenile court.”

Further, the court held that statutory immunity was available under Iowa

Code section 232.73. That section states, “A person participating in good faith

in the making of a report . . . or aiding and assisting in an assessment of a child

abuse report pursuant to section 232.71B, shall have immunity from any

liability . . . .” Id. The court concluded that this provision covered the actions of

the DHS employees.

Additionally, and in the alternative, the district court granted summary

judgment to the State on the merits of Lennette’s claims. It explained that

tortious interference with custody was intended to provide a remedy when one

parent interfered with the other parent’s legal rights to a child, not when DHS

employees filed affidavits with a juvenile court. Also, none of the alleged wrongful

actions of the State met the “abducting, compelling, or inducing” element of a

tortious interference claim. Turning to intentional infliction of emotional distress,

the court concluded that actions at issue could “not reasonably be regarded as

outrageous.” Both common law claims therefore failed as a matter of law.
 13

Moving to Lennette’s direct claims under the Iowa Constitution, the district

court rejected the claims under article I, section 1 and article I, section 8 on the

ground that our court had not recognized such claims. Also, the court found that

there had been no due process violation under article I, section 9: Lennette had

received constitutionally adequate procedures, and the State had not taken

“action that shocks the conscience or interferes with rights implicit in the

concept of ordered liberty.”

Lennette timely appealed, and we retained the appeal.

III. Standard of Review.

Summary judgment is granted when “there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Iowa R. Civ. P. 1.981(3). “We review a district court’s summary judgment

ruling for correction of errors at law.” Koster v. Harvest Bible Chapel–Quad Cities,

959 N.W.2d 680, 687 (Iowa 2021). In doing so, “[w]e view the record in the light

most favorable to the nonmoving party.” Id. State constitutional claims are

reviewed de novo. Venckus v. City of Iowa City, 930 N.W.2d 792, 798 (Iowa 2019).

IV. Analysis.

Lennette alleges that the State, through its child protection workers,

committed common law torts and constitutional violations that resulted in his

losing access to his children for almost a year, from January 16 to December 23,

2015. He alleges two common law torts: tortious interference with the

parent–child relationship and intentional infliction of emotional distress. He also

alleges four violations of the Iowa Constitution: inalienable rights (article I,
 14

section 1), search and seizure (article I, section 8), and substantive and

procedural due process (article I, section 9). The gist of his complaints is that

DHS failed to conduct an adequate investigation, withheld exculpatory

information from the court, and presented untrue information to the court.

As noted, the State argued below, and the district court agreed, that

various immunities apply to Lennette’s claims:

1. Judicial process immunity, which is an updated term for
what used to be called prosecutorial immunity. See Venckus, 930
N.W.2d at 803; Minor, 819 N.W.2d at 397–98.

2. The discretionary function exception in the ITCA. See Iowa
Code § 669.14(1).

3. The exception for claims arising out of misrepresentation
and deceit in the ITCA. See id. § 669.14(4).

4. The statutory immunity for reporters set forth in Iowa Code
section 232.72. See Nelson v. Lindaman, 867 N.W.2d 1, 8–9 (Iowa
2015).

The State also argued below, and the district court agreed, that all of

Lennette’s claims failed on the merits. After a close review of the facts as viewed

in the light most favorable to Lennette, we believe that his claims cannot succeed

on the merits, and, therefore, we do not reach the question of whether any

immunities apply.

We do not write on a totally blank slate. A decade ago, in Minor v. State,

we considered a mother’s claims on behalf of herself and her daughter that two

DHS workers had wrongfully caused her daughter to be removed from her care

and custody and had negligently failed to prevent the child from abuse by a foster

parent. 819 N.W.2d at 389. The mother wound up being separated from her
 15

daughter for approximately three months, the duration of the CINA proceeding.

Id. at 390–91. The mother asserted federal constitutional claims under 42 U.S.C.

§ 1983—but not state constitutional claims. Id. at 392. She also asserted state

common law tort claims, including tortious interference with the parent–child

relationship and intentional infliction of emotional distress. Id.

With respect to the state tort claims, we noted that “there is some debate

as to whether Iowa recognizes a cause of action for tortious interference with the

parent–child relationship.” Id. at 404. Regardless, even assuming that such a

cause of action existed in Iowa, we held all tort claims that had been presented

to the state appeal board were barred because they were the functional

equivalent of misrepresentation and deceit. Id. at 407–08; see Iowa Code

§ 669.14(4). As we stated,

[T]he basis of their claim is that, to intentionally inflict emotional
distress and interfere with their parent–child relationship, [the
social worker] obtained false information from [a third party],
communicated the false information to the district court, and the
district court relied on it in deciding to remove [the daughter] from
[the mother’s] custody.

Minor, 819 N.W.2d at 407.

As to the federal constitutional claims, we determined that absolute

immunity protects social workers when they recommend that prosecutors

initiate legal proceedings or when they file affidavits as ordinary witnesses, but

not when they investigate cases or file affidavits as complaining witnesses. Id. at

398–99. Nevertheless, to the extent the mother’s claims were not barred by

absolute immunity, we found they were barred by qualified immunity because

one DHS worker’s complaining witness affidavit contained “information obtained
 16

during previous investigations conducted in good faith” and there was no

evidence that the other DHS worker allowed the daughter to continue in a foster

care placement that he knew to be dangerous or otherwise unfit. Id. at 401, 404.

Accordingly, we affirmed the summary judgment that had been granted to the

defendants. Id. at 408.

Although we decided the Minor case based on ITCA exceptions, absolute

immunity, and qualified immunity, we do not reach those issues in the present

case. As noted, we believe the present case can be resolved on the

straightforward ground that Lennette’s specific claims for damages lack legal and

evidentiary support as a matter of law.

A. Intentional Interference with the Parent–Child Relationship. Even

though Minor discerned “some debate,” it seems clear to us that Iowa recognizes

a tort of intentional interference with the parent–child relationship. Id. at 404.

In Wood v. Wood, we discussed the tort at some length and said, “The claim for

interference with custody rights appears to have been recognized in every

jurisdiction which has addressed the issue.” 338 N.W.2d 123, 124–25 (Iowa

1983) (en banc). We reversed the district court’s dismissal of a claim brought by

one divorced parent against the other parent for interfering with that relationship

by refusing to return their child. Id. at 123, 127. We concluded “that we should

follow the majority of jurisdictions by recognizing and applying section 700 of

the Restatement.” Id. at 127.
 17

Since Wood was decided, we have reaffirmed the tort twice: in 1989 and

again in 2005. See Lansky v. Lansky, 449 N.W.2d 367, 368 (Iowa 1989); Wolf v.

Wolf, 690 N.W.2d 887, 892 (Iowa 2005). In the 2005 case, we explained,

To establish a claim of tortious interference with custody, a
plaintiff must show (1) the plaintiff has a legal right to establish or
maintain a parental or custodial relationship with his or her minor
child; (2) the defendant took some action or affirmative effort to
abduct the child or to compel or induce the child to leave the
plaintiff’s custody; (3) the abducting, compelling, or inducing was
willful; and (4) the abducting, compelling, or inducing was done with
notice or knowledge that the child had a parent whose rights were
thereby invaded and who did not consent.

Wolf, 690 N.W.2d at 892.

The Second Restatement of Torts, which we relied upon in Wood and Wolf,

characterizes the tort of intentional interference with the parent–child

relationship as follows:

One who, with knowledge that the parent does not consent, abducts
or otherwise compels or induces a minor child to leave a parent
legally entitled to its custody or not to return to the parent after it
has been left him, is subject to liability to the parent.

Restatement (Second) of Torts § 700, at 505 (Am. L. Inst. 1977).

We have not previously had to decide whether this tort can be pursued

against a government social worker who allegedly conducts a slipshod

investigation resulting in a judicial order depriving a parent of access to their

child. Has such a worker “abduct[ed] or otherwise compel[led] or induce[d] a

minor child to leave a parent”? Id. We think not, and some out-of-state

precedents support this conclusion.

In Nelson v. Green, a federal district court rejected a father’s attempt to

apply this Restatement section to a fact pattern similar to ours. 965 F. Supp. 2d
 18

732, 737–38 (W.D. Va. 2013). In the midst of a custody battle, the mother began

alleging that the father had sexually abused the child. Id. at 737. Several

therapists reported to a county caseworker that the allegations were false. Id.

Nevertheless, the caseworker arranged for a “corrupt” evaluation that was “set

up for the purpose of manufacturing a false disclosure of abuse.” Id. at 738. The

county then used that report to petition for a protective order and to issue a

“founded” determination of sex abuse against the father that was later

overturned. Id. at 738–39. The father had to undergo a thirteen-day trial to clear

his name. Id. at 739.

The father brought, among other things, a claim for tortious interference

with the parent–child relationship. Id. at 754. The nub of the claim was that

“Defendants breached their duty to ‘discharge their child protection

responsibilities in a competent, objective, and fair manner[,]’ resulting in

Plaintiff’s separation from his child.” Id. (alteration in original). The court

dismissed the claim. Id. at 754–55. The court quoted the language of

Restatement (Second) of Torts section 700, emphasized that the tort

contemplated separation of the parent from the child “without due process of

law,” and distinguished a prior case where a father had been allowed to pursue

such a claim against private actors who arranged for his newborn child to be

adopted in another state without his knowledge or involvement. Id. at 754–55.

In Zamstein v. Marvasti, the Connecticut Supreme Court relied on a similar

analysis in declining to recognize a father’s intentional interference claim against

a reporting psychiatrist. 692 A.2d 781, 782–83 (Conn. 1997). The father and the
 19

mother were in the midst of a divorce. Id. at 783. The mother, who accused the

father of sexually abusing the children, retained a psychiatrist to evaluate the

children. Id. The psychiatrist allegedly presented misleading information to the

prosecutor by deleting exculpatory portions of his taped sessions with the

children. Id. This resulted in a lengthy prosecution of the father before the father

was acquitted. Id. Yet the court concluded there was no viable interference claim

because the process was not “extralegal”; rather, it occurred through a court

process in which the father participated:

The plaintiff in the present case has failed to allege sufficient
facts to state a cause of action for the tort of child abduction or
custodial interference, . . . because the plaintiff did not allege any
facts suggesting an unlawful custody of his children. In the absence
of such an allegation, the trial court was correct in striking count
four of the plaintiff’s complaint. The defendant’s acts were the
alleged influencing of a judicial decision regarding custody, and were
not some extralegal taking of custody as required for the tort of
intentional interference of custodial rights.

Id. at 790.

We find the reasoning in these cases persuasive. Whatever the precise

scope of the tort of intentional interference with the parent–child relationship, it

requires something different from what happened here. The defendant must

commit acts that can be fairly described as willfully “abducting, compelling, or

inducing” the child to leave the parent’s custody. Wolf, 690 N.W.2d at 892. The

tort does not cover negligent investigations of a parent, or negligent submissions

to a court, in connection with a child welfare proceeding. If Lennette’s claim for

tortious interference were allowed to go forward here, then potentially anyone

who is jailed but later acquitted of a criminal offense could sue the investigators
 20

and complaining witnesses for intentional interference with the parent–child

relationship so long as the acquitted defendant happened to be the parent of a

minor child. The district court appropriately granted summary judgment to the

State on this claim.

B. Intentional Infliction of Emotional Distress. To succeed on a claim

of intentional infliction of emotional distress, Lennette must demonstrate:

(1) outrageous conduct by the defendant; (2) the defendant
intentionally caused, or recklessly disregarded the probability of
causing, the emotional distress; (3) plaintiff suffered severe or
extreme emotional distress; and (4) the defendant’s outrageous
conduct was the actual and proximate cause of the emotional
distress.

Smith v. Iowa State Univ. of Sci. & Tech., 851 N.W.2d 1, 26 (Iowa 2014) (quoting

Barreca v. Nickolas, 683 N.W.2d 111, 123–24 (Iowa 2004)). For intentional

infliction of emotional distress cases, “it is for the court to determine in the first

instance, as a matter of law, whether the conduct complained of may reasonably

be regarded as outrageous.” Cutler v. Klass, Whicher & Mishne, 473 N.W.2d 178,

183 (Iowa 1991) (quoting M.H. by and through Callahan v. State, 385 N.W.2d

533, 540 (Iowa 1986)). The defendant’s conduct must be “so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.” Fuller v. Loc. Union No. 106 of

United Broth. of Carpenters & Joiners of Am., 567 N.W.2d 419, 423 (Iowa 1997)

(quoting Harsha v. State Savs. Bank, 346 N.W.2d 791, 801 (Iowa 1984)); see also

Smith, 851 N.W.2d at 29 (finding the conduct sufficiently outrageous when the

defendant’s employee “engaged in unremitting psychological warfare against [the

plaintiff] over a substantial period of time”).
 21

We think Fuller v. Local Union No. 106 of the United Brotherhood of

Carpenters & Joiners of America, 567 N.W.2d 419, provides a helpful guidepost.

There, the defendant filed a knowingly false police report that the plaintiff was

driving while intoxicated, resulting in the plaintiff’s being stopped on the

highway. Id. at 421. That misconduct was deemed insufficiently extreme to

survive summary judgment. Id. at 423. Here, there is no evidence that DHS made

a knowingly false report, only that its investigation was inadequate.

Other courts have rejected intentional infliction of emotional distress

claims against social workers in similar circumstances. See Chen v. D’Amico, 428

F. Supp. 3d 483, 514 (W.D. Wash. 2019) (granting summary judgment in favor

of state department of human services employees on claims brought by parents

who were separated from the child, and noting that “[w]ithout opining on how

Ms. Danner and Ms. Kegel could have done their jobs better, no reasonable jury

could find that their actions were so outrageous in character, and so extreme in

degree, as to go beyond ‘all possible bounds of decency’ ”); Bass v. S.C. Dep’t of

Soc. Servs., 780 S.E.2d 252, 260–61 (S.C. 2015) (finding that social workers’

grossly negligent conduct in separating children from their parental home based

on subsequently discredited allegations of “parental poisoning” did not support

a claim for intentional infliction of emotional distress). We uphold the grant of

summary judgment on this claim.

C. Inalienable Rights. The inalienable rights clause of the Iowa

Constitution provides,
 22

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.

Lennette asserts that the facts of this case show a violation of the

inalienable rights clause. But the sum total of Lennette’s inalienable rights

argument is that specific DHS workers acted arbitrarily and capriciously. This is

fundamentally a due process argument. An evaluation of the procedures followed

in this case is not a substantive claim under article I, section 1, but is really a

due process claim. We will therefore evaluate Lennette’s inalienable rights claim

under the rubric of due process.

D. Unreasonable Search and Seizure. Lennette contends that the actions

of the DHS workers amounted to an unreasonable search and seizure of his

person in violation of article I, section 8 of the Iowa Constitution. Courts have

held that government social workers violate the Fourth Amendment to the United

States Constitution when they remove children from a home without either court

approval or sufficient exigent circumstances. See, e.g., Kirkpatrick v. County of

Washoe, 843 F.3d 784, 790 (9th Cir. 2016) (“Under the Fourth Amendment,

government officials are ordinarily required to obtain prior judicial authorization

before removing a child from the custody of her parent.”). Courts have also

indicated that the Fourth Amendment is violated if a social worker makes an

intentionally or recklessly false statement or omission to a judicial officer that

results in a removal order. See, e.g., Marks v. Hudson, 933 F.3d 481, 486 (5th

Cir. 2019) (“It is also clearly established that a constitutional violation occurs if
 23

an official makes a knowing, intentional, or reckless false statement or omission

that causes the issuance of a warrant without probable cause that leads to the

removal of a child from its parent’s custody.”).

We will assume without deciding that these same principles apply here,

even though no child was removed and instead Lennette was ordered out of the

home.3 Regardless, the record does not show that Siver included any knowing or

reckless falsehoods in her affidavit. Siver accurately recounted what S.L. had

said in her forensic interview. Siver had observed that interview firsthand. Siver

relayed her personal belief that S.L. was credible. Some of the other information

that Siver included came from discussions with Holly, but for the most part,

Holly was identified as the source of that information. Siver also informed the

court that the couple was going through a divorce.

Lennette criticizes Siver for not getting additional corroboration before

submitting her affidavit to the court. One can second-guess Siver’s investigation,

though, without treating it as a Fourth Amendment violation. There is nothing

in the affidavit that would have been stricken at a hearing under Franks v.

Delaware. See 438 U.S. 154, 171–72 (1978) (holding that when a challenger

shows that the affiant has made intentionally or recklessly false statements, they

must be stricken from the warrant application). See, e.g., McCullough v. Herron,

838 F. App’x 837, 845 (5th Cir. 2020) (per curiam) (rejecting a Fourth

Amendment claim where the social worker’s “statement, even if assumed false,

3We note also that Lennette does not argue for a different standard to be applied under

article I, section 8 as contrasted with the Fourth Amendment.
 24

was immaterial to the court’s finding of probable cause for medical neglect”);

Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) (applying the principles of

Franks to an affidavit filed to secure a court order removing children from a

home). Even if the statements that Lennette challenges had been stricken, we

conclude that the ex parte order would have been issued anyway based on S.L.’s

forensic interview describing sexual abuse and Siver’s sworn statement that she

found S.L. credible.

E. Substantive Due Process. Next we consider whether the conduct of the

DHS workers violated substantive due process. When specific government

conduct (as opposed to legislation) is alleged to have violated substantive due

process, we typically apply the “shocks the conscience” standard to assess the

claim. See Behm v. City of Cedar Rapids, 922 N.W.2d 524, 550 (Iowa 2019).

“A substantive due process violation is not easy to prove.” Blumenthal Inv.

Trs. v. City of West Des Moines, 636 N.W.2d 255, 265 (Iowa 2001). The claim “is

reserved for the most egregious governmental abuses against liberty or property

rights, abuses that ‘shock the conscience or otherwise offend . . . judicial notions

of fairness . . . [and that are] offensive to human dignity.’ ” Id. (omissions and

alteration in original) (quoting Rivkin v. Dover Twp. Rent Leveling Bd., 671 A.2d

567, 575 (N.J. 1996)). The conduct here does not shock the conscience.4

4Lennette urges us to abandon the “shocks the conscience” substantive-due-process test
in light of our adoption of “all due care” qualified immunity in Baldwin v. City of Estherville, 915
N.W.2d 259, 280 (Iowa 2018). Lennette reasons that in any case where the plaintiff establishes
a due process violation under the shocks-the-conscience test, clearly the defendants didn’t
exercise “all due care.” And since we didn’t intend to establish an unnecessary immunity in
Baldwin, we must have intended to jettison the shocks-the-conscience test.
 25

In Parker v. Henry & William Evans Home for Children, Inc., the parents

alleged that county caseworkers had violated substantive due process by “failing

to conduct a reasonable investigation . . . prior to removing the children.” 762

F. App’x 147, 157 (4th Cir. 2019). The United States Court of Appeals for the

Fourth Circuit rejected the claim at the pleading stage, reasoning, “Where, as

here, the defendants had some evidence of child abuse and attempted home

visits in response to the complaint, their subsequent separation of the children

is not conscience-shocking, particularly given that in cases of child abuse or

neglect ‘there often is no time to investigate.’ ” Id. (quoting Wolf v. Fauquier Cnty.

Bd. of Supervisors, 555 F.3d 311, 319 (4th Cir. 2009)).

Here, as in Parker, DHS had some basis for its actions. S.L. had been

interviewed and had made serious allegations of sexual abuse against Lennette.

After the ex parte order was obtained, Lennette could have insisted on an

immediate hearing. Instead, Lennette initially agreed to continuation of the

no-contact order and refused to be interviewed by DHS. DHS issued a “founded”

determination only after S.L.’s therapist recommended that S.L. not have visits

with Lennette. This is not conscience shocking.

The Second Circuit has clarified that a removal of a child with a

“reasonable basis” is insufficient to violate the conscience-shocking standard as

a matter of law. Southerland v. City of New York, 680 F.3d 127, 152 (2d Cir.

2012). As the court put it,

However, the flaw in this argument is that we adopted all-due-care immunity in a case
involving article I, section 8, not article I, section 9. See id. at 281. We did not say this immunity
would necessarily play an active role in every constitutional tort case.
 26

We have explained that, in part because the law contemplates
a careful balancing of interests, a parent’s substantive
constitutional rights are not infringed if a caseworker, in effecting a
removal of a child from the parent’s home, has a reasonable basis
for thinking that a child is abused or neglected.

Id. The court went on,

We agree with the district court that the removal of children
from their parent for the purpose of keeping the children safe does
not violate the parent’s substantive due process rights if a post-
removal judicial proceeding is promptly held to confirm that there
exists a reasonable basis for the removal.

Id. at 153.

As already noted, S.L. had given a forensic interview accusing Lennette of

child abuse. While the record suggests that Siver and Howell did not consider

the exculpatory evidence and investigative leads submitted by Lennette, Lennette

could have submitted that evidence to the court as early as January 23, 2015,

one week after the no-contact order was entered. Lennette elected not to do so

and instead agreed to continue the hearing on the merits.

Other federal authority supports the district court’s dismissal of this claim.

In Halley v. Huckaby, the Tenth Circuit likewise applied the

shocks-the-conscience approach to a substantive due process claim alleging

interference with the familial relationship. 902 F.3d 1136, 1155–56 (10th Cir.

2018). The court indicated that this standard “requires much more than mere

negligence.” Id. at 1155. “[T]he evidence . . . must show executive action by

government officials so arbitrary and capricious that it amounts to conduct that

shocks the conscience.” Id. at 1156.
 27

Recently, in Stanley v. Hutchinson, the Eighth Circuit found no substantive

due process violation as a matter of law even though the DHS worker later

testified that “when she prepared her ‘find true’ determination, she doubted

having enough evidence to sustain it, but [a police officer] told her to find true

even without an evidentiary basis, because the case was ‘too political.’ ” 12 F.4th

834, 844 (8th Cir. 2021).5 As the court put it, “[The parents] introduced no

evidence that [the DHS worker’s] find true determination and testimony in

administrative and judicial proceedings were ‘fabricated’ or came anywhere near

this level of conscience-shocking behavior.” Id. at 844–45. The Eighth Circuit

recognized this had been “a lengthy ordeal that may have been caused, at least

in part, by overzealous government officials,” but it nevertheless affirmed

summary judgment for those officials. Id. at 845.

Similarly, in Maddox v. Stephens, the Eleventh Circuit applied the

conscience-shocking standard in rejecting the substantive due process claim of

a mother against a county social worker who had prepared a safety plan that

separated the mother from her child. 727 F.3d 1109, 1113–17, 1126 (11th Cir.

2013); see also A.J. v. Lancaster County, 826 F. App’x 248, 250 (3d Cir. 2020)

(explaining that the shocks-the-conscience standard is met only if the child

welfare agency lacked “reasonable and articulable evidence giving rise to a

reasonable suspicion that [[the child] had] been abused or [was] in imminent

danger of abuse” (first and third alteration in original) (quoting Mulholland v.

5The case arose out of Arkansas and a “find true” determination appears to be analogous

to a “founded” determination in Iowa. See 12 F.4th at 844.
 28

Government County of Berks, 706 F.3d 227, 241 (3d Cir. 2013))); Mitchell v.

Dakota Cnty. Soc. Servs., 959 F.3d 887, 901 (8th Cir. 2020) (“Because removal

of the children was based on a reasonable suspicion of child abuse and did not

shock the conscience, the children have not established a viable substantive due

process violation for their prolonged separation from [their father].”); Miller v. City

of Philadelphia, 174 F.3d 368, 375–76 (3d Cir. 1999) (“We recognize that a social

worker acting to separate parent and child does not usually act in the hyper

pressurized environment of a prison riot or a high-speed chase. However, he or

she rarely will have the luxury of proceeding in a deliberate fashion, as prison

medical officials can. As a result, in order for liability to attach, a social worker

need not have acted with the ‘purpose to cause harm,’ but the standard of

culpability for substantive due process purposes must exceed both negligence

and deliberate indifference, and reach a level of gross negligence or arbitrariness

that indeed ‘shocks the conscience.’ ”); Wolf, 555 F.3d at 323 (“The conduct of

the individual DSS defendants does not approach the level of shocking the

conscience. DSS responded to a complaint suggesting the possibility of serious

harm and proceeded to investigate and take steps to assure the safety of children

that might have been in danger.”); Chen, 428 F. Supp. 3d at 505 (noting that

state officials must act with such deliberate indifference that their actions “shock

the conscience” to support a substantive due process claim and that “Plaintiffs
 29

have not submitted evidence of State Defendants’ conduct that rises to the level

of a substantive due process violation”).6

We find this authority persuasive and conclude that Lennette has not

established that the State committed a substantive due process violation.

F. Procedural Due Process. Lennette also claims that the State denied

him procedural due process. We disagree. Iowa Code chapter 232 has procedures

in place to protect parents from losing their children. All of the relevant

procedures were afforded here. Indeed, Lennette was able to utilize those

procedures to get his children back and clear his name. It was Lennette’s

decision not to go forward with an immediate post-removal hearing on January

23, 2015.7

Lennette faults the State for inadequately investigating S.L.’s allegations

while taking nearly two months to deem them founded. But procedural due

process generally does not guarantee that individual employees of the executive

branch of government will move quickly or do their jobs well. What it does assure

is a right to a meaningful hearing when constitutionally protected interests are

invaded or threatened.

In F.K. v. Iowa District Court for Polk County, we upheld the basic review

procedures at issue here. 630 N.W.2d 801, 809–10 (Iowa 2001). We found that

6Lennette directs us to Akins v. Epperly, a case against state patrol officers for wrongful

arrest and detention that has nothing to do with parent–child relations. 588 F.3d 1178, 1182
(8th Cir. 2009). Even so, the Eighth Circuit rejected the plaintiff’s substantive due process claim:
“Akins highlights multiple errors and inconsistencies in Trammell’s and Vaughan’s investigation,
but he has failed to show conscience-shocking reckless or intentional conduct.” Id. at 1184.
7The Rules of Juvenile Procedure require this hearing to occur within ten days. See Iowa

Ct. R. 8.12.
 30

a statute allowing for ex parte removal orders followed by reasonably prompt

adversary hearings did not violate procedural due process: “Given the emergency

nature of temporary removal applications, a reasonably prompt post-removal

hearing meets the twin goals of protecting the child’s safety while preserving the

parent’s liberty interest. The legislature could reasonably err on the side of less

formality where the safety of children is at issue.” Id. at 810.

The relevant issue for the purposes of this claim is whether “the

procedures available did not provide due process of law.” Dennis v. DeJong, 953

F. Supp. 2d 568, 591 (E.D. Pa. 2013). As the court put it in Dennis v. DeJong,

“There may be cases in which a child is justifiably removed from the home,

without violating due process, even where a later investigation reveals no abuse

actually occurred.” Id. at 590; see also Wolf, 555 F.3d at 323 (“DSS’s

investigation, even if imperfect, did not deprive Wolf of due process by denying

her the right to make her case.”); Mitchell v. Dakota Cnty. Soc. Servs., 357 F.

Supp. 3d 891, 901 (D. Minn. 2019) (dismissing the procedural due process claim

of a father who suffered temporary removal of his children from his custody due

to the defendants’ misconduct, unreliable accusations, and concealment where

“there [were] no allegations of any omission of procedural safeguards”), aff’d, 959

F.3d 887.

Lennette was advised of his rights to challenge the January 16, 2015 ex

parte no-contact order in court. He took advantage of those rights to vindicate

his name and get his children back, although at a pace largely of his own

choosing. Cf. Isbell v. Bellino, 962 F. Supp. 2d 738, 751–53 (M.D. Pa. 2013)
 31

(finding a potentially viable procedural due process claim when the parents

“were mired in a legal limbo, obliged to follow the terms of the safety plan

imposed by the Defendants without any means of recourse for nearly five

months”). No procedural due process violation occurred here.8

V. Conclusion.

For the foregoing reasons, we affirm the district court’s grant of summary

judgment to the defendants.

AFFIRMED.

All participating justices concur. Appel, J., files a concurrence. McDonald,

J., files a concurrence. Oxley, J., takes no part.

8In light of our disposition of the due process claims, and our previous discussion in
part IV.C, we hold that Lennette’s inalienable rights claim also fails.
 32

#20–1148, Lennette v. State

APPEL, Justice (concurring).

A concurring opinion in this case states that Godfrey v. State, 898 N.W.2d

844 (Iowa 2017), was wrongly decided. In Godfrey, we determined that several

provisions of the Iowa Bill of Rights were self-executing. Id. at 846–47, 871–72

(plurality opinion). In other words, a person claiming injury as a result of a

constitutional violation could bring a claim against a constitutional wrongdoer

seeking money damages. Id. at 871–72. The concurring opinion claims that

Godfrey was “demonstrably erroneous.” I emphatically disagree. Indeed, in my

view, the notion that there may be constitutional wrongs without a remedy is the

“demonstrably erroneous” doctrine.

First, the doctrine that there is “no right without a remedy” is a revered

doctrine of common law. Duncan Kennedy, The Structure of Blackstone’s

Commentaries, 28 Buff. L. Rev. 209, 238–44 (1979) (establishing that ubi jus, ibi

remedium (for every right a remedy) dominated Blackstone’s law of wrongs). The

common law maxim, however, was in tension with the concept of sovereign

immunity. See Richard H. Fallon, Jr., Bidding Farewell to Constitutional Torts,

107 Calif. L. Rev. 933, 935, 942 (2019). But, as seen in the famous eighteenth

century case Wilkes v. Wood (1763) 98 Eng. Rep. 489 (C.P.), immunity did not

prevent civil rights claims for damages, including punitive damages, for the

unconstitutional search and seizures by government agents ransacking homes

looking for evidence of who was responsible for a disfavored publication. See
 33

State v. Ochoa, 792 N.W.2d 260, 269–70 (Iowa 2010) (providing historic

background of the Wilkes case).

One of the Wilkes damages cases, Entick v. Carrington (1765) 95 Eng. Rep.

807 (C.P.), was described by the United States Supreme Court as a “monument

of English freedom” and considered to be “the true and ultimate expression of

constitutional law.” Boyd v. United States, 116 U.S. 616, 626 (1886), overruled

in part on other grounds by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294,

302 (1967); Ochoa, 792 N.W.2d at 270 (providing historic background to the

Entick case). In this ultimate expression of constitutional law, the Wilkes jury

assessed a substantial damages verdict of 1,000 pounds. Wilkes, 98 Eng. Rep.

at 499; see Godfrey, 898 N.W.2d at 866.

The Wilkes cases, forgotten today in some circles, were well known to

colonists. Ochoa, 792 N.W.2d at 270. But the notion that the King could do no

wrong was not part of the colonists’ outlook, as demonstrated by the bitter

resistance to the writs of assistance and general warrants so despised by John

Adams and as brilliantly attacked by James Otis in Paxton’s Case. Tracey Maclin,

The Complexity of the Fourth Amendment: A Historical Review, 77 B.U. L. Rev.

925, 946 (1997) (providing historic background of Paxton’s Case).

Second, the point that wrongs deserve remedies was recognized by the

great Chief Justice John Marshall in Marbury v. Madison, where he wrote, “The

very essence of civil liberty certainly consists in the right of every individual to

claim the protection of the laws, whenever he receives an injury.” 5 U.S. 137,

163 (1803). The provisions of article I of the Iowa Constitution, of course, are
 34

part of “the laws.” The notion in Godfrey is that when individuals are entitled to

the protection of constitutional provisions and those provisions are violated, the

individual is entitled to a cause of action for damages. 898 N.W.2d at 871–72.

Third, the Iowa Constitution notably included in its first substantive

provision an inalienable rights clause. Iowa Const. art. I, § 1 (“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.”). Under article I, section 1 of the Iowa Constitution, rights predated

the Iowa Constitution and were “inalienable.” If rights are inalienable, they must

be subject to judicial enforcement. If the legislature could eviscerate the

provision by refusing to enact implementing legislation, it would, in essence,

render article I, section 1 a nullity and subject to control by the legislature, the

very body from which the rights were designed to offer protection.

The fact that the first article of the Iowa Constitution details the Bill of

Rights and not provisions related to the exercise of government power has not

been recognized by current majorities on this court. And yet, it is a powerful

indictor of the primary importance of preserving rights under the Iowa

Constitution. See Bruce Kempkes, The Natural Rights Clause of the Iowa

Constitution: When the Law Sits Too Tight, 42 Drake L. Rev. 593, 631 (1993)

(noting the drafter’s placement of the clause at the very beginning of the

constitution strongly supports the argument that article I, section 1 should be

given “substantive meaning”). The front and center placement of article I,
 35

section 1 and the Iowa Bill of Rights generally demonstrates that the first

principle of state government under the Iowa Constitution is the preservation of

rights, a recognition that the cardinal responsibility of government is to protect

the exercise of these rights, not invade them. Hoover v. Iowa State Highway

Comm’n, 222 N.W. 438, 439 (Iowa 1928) (“Appearing . . . at the very threshold of

the Iowa Bill of Rights, that constitutional safeguard is thereby emphasized and

shown to be paramount.”). Further, article I, section 1 acknowledges the basic

and fundamental truth that certain inalienable rights are beyond the power of

government to invade. In cases where this court expands the power of

government, the sequence of the Iowa Constitution provisions is inverted, with

legislative power in article III leapfrogging article I provisions.

Fourth, the Iowa caselaw with respect to enforceability of provisions in the

Bill of Rights found in state constitutions developed around the turn of the

twentieth century. In Iowa, we considered a claim for damages against an officer

who conducted a search without a warrant in McClurg v. Brenton, 98 N.W. 881,

881–82 (Iowa 1904). Here, we emphasized the right of citizens to enjoy their home

is embodied in “every bill of rights defining the limits of governmental power.” Id.

at 882.

Later, in Krehbiel v. Henkle, we noted that the right of a person to be secure

from wrongful searches was “zealously safeguarded and has express recognition

in our state Constitution” and that it was “thoroughly well settled” that “a

violation of this right without reasonable ground therefor gives the injured party

a right of [damages].” 121 N.W. 378, 379–80 (Iowa 1909). Ah, a right to damages
 36

for a constitutional violation. Sounds like the judges in the Wilkes cases. And

Chief Justice John Marshall, too.

If there was any ambiguity about a claim for damages arising from search

and seizure violations in McClurg and Krehbiel (there isn’t), the matter was

resolved in Girard v. Anderson, 257 N.W. 400 (Iowa 1934). In that case, we

declared, “A violation of the state and federal constitutional provisions against

the unreasonable invasion of a person’s home gives the injured party a right of

action for damages for unlawful breaking and entering.” Id. at 403. Note Girard

stated that it was a “violation of the state and federal constitutional provisions”

that gave rise to the claim. Id. So, the notion that provisions of the Iowa

Constitution gave rise to a cause of action for damages without legislative action

was in the Iowa legal waters more than a hundred years before Godfrey.

Fifth, over fifty years ago, the United States Supreme Court in Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics emphatically

established a cause of action for damages caused by unconstitutional conduct

of government officials. 403 U.S. 388, 395–97 (1971). This is so because “[a]n

agent acting . . . in the name of the United States possesses a far greater capacity

for harm than an individual trespasser exercising no authority other than his

own.” Id. at 392. The Court noted the fact that damages may be available for

Fourth Amendment violations “should hardly seem a surprising proposition”

since damages have historically been considered an “ordinary remedy” for liberty

violations. Id. at 395–96. It is undeniably true that the recent rights-restricting

majorities on the United States Supreme Court have curtailed the scope of a
 37

Bivens-style claim. See, e.g., Hernandez v. Mesa, 140 S. Ct. 735, 749–50 (2020)

(holding that Bivens does not extend to claims against executive officials brought

by foreign nationals); Wilkie v. Robbins, 551 U.S. 537, 561–62 (2007) (holding

landowner did not have Bivens cause of action against Bureau of Land

Management employees); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001)

(holding no Bivens cause of action exists against private corporation engaged in

federal action). But the departures of the United States Supreme Court do not

undercut the essential rationale in Bivens.

Sixth, the concurring opinion in Bivens of that great conservative of the

Warren Court era, John Marshall Harlan, is particularly perceptive. Justice

Harlan emphasized that English common law recognized damages claims for

violation of charters and constitutions. See Bivens, 403 U.S. at 403–05 (Harlan,

J., concurring). And, Justice Harlan rejected the notion that legislation was

needed to provide a remedy, observing that the Bill of Rights was “intended to

vindicate the interests of the individual in the face of the popular will as

expressed in legislative majorities.” Id. at 407. Further, Justice Harlan echoed

Justice Marshall in observing that at the time of the United States Constitutional

Convention, “modes of jurisprudential thought which appeared to link ‘rights’

and ‘remedies’ in a 1:1 correlation.” Id. at 400 n.3.

Seventh, both before and after Bivens, a number of state courts have found

that provisions of the bill of rights in their state constitutions were self-executing.

The cases spread upon the pages of the national reporter system embracing the

notion of self-executing state constitutional provision prior to Godfrey include
 38

Gay L. Students Ass’n v. Pac. Tel. & Tel. Co., 595 P.2d 592, 602 (Cal. 1979),

superseded by statute on other grounds, Cal. Gov. Code § 12940(a)–(d), (j), as

recognized in In re Marriage Cases, 183 P.3d 384, 437 n.56 (Cal. 2008); Binette

v. Sabo, 710 A.2d 688, 693 (Conn. 1998); Newell v. City of Elgin, 340 N.E.2d 344,

349 (Ill. App. Ct. 1976); Moresi v. State ex rel. Dep’t of Wildlife & Fisheries, 567

So. 2d 1081, 1092–93 (La. 1990); Manikhi v. Mass Transit Admin., 758 A.2d 95,

111 (Md. 2000); Widgeon v. E. Shore Hosp. Ctr., 479 A.2d 921, 927–28 (Md.

1984); Phillips v. Youth Dev. Program, Inc., 459 N.E.2d 453, 457 & n.4 (Mass.

1983); Johnson v. Wayne County, 540 N.W.2d 66, 69–70 (Mich. Ct. App. 1995);

Stringer v. State, 491 So. 2d 837, 849 (Miss. 1986) (en banc) (Robertson, J.,

concurring); Mayes v. Till, 266 So. 2d 578, 580 (Miss. 1972); Dorwart v. Caraway,

58 P.3d 128, 136–37 (Mont. 2002); Jackson v. Consol. Rail Corp., 538 A.2d 1310,

1319 (N.J. Super. Ct. App. Div. 1988); Strauss v. State, 330 A.2d 646, 649 (N.J.

Super. Ct. Law Div. 1974); Brown v. State, 674 N.E.2d 1129, 1137–38, 1144

(N.Y. 1996); Corum v. Univ. of N.C. ex rel. Bd. of Governors, 413 S.E.2d 276, 289–

90 (N.C. 1992); Jones v. Mem’l Hosp. Sys., 746 S.W.2d 891, 893–94 (Tex. App.

1988); Old Tuckaway Assocs. Ltd. P’ship v. City of Greenfield, 509 N.W.2d 323,

328 n.4 (Wis. Ct. App. 1993).

The above cases offer a veritable cornucopia of reasoning, but a succinct

statement was provided in Brown:

The underlying rationale for the decision, in simplest terms, is that
constitutional guarantees are worthy of protection on their own
terms without being linked to some common-law or statutory tort,
and that the courts have the obligation to enforce these rights by
 39

ensuring that each individual receives an adequate remedy for
violation of a constitutional duty.

674 N.E.2d at 1138.

Eighth, modern scholarly authority recognizes the need for effective

remedies for violations of constitutional provisions. For example, the

Restatement (Second) of Torts, section 874A, makes a clear statement that a

remedy will be implied for violations of constitutional provisions where such a

remedy is needed to assure effectiveness of the provision. See Restatement

(Second) of Torts § 874A & cmt. a (Am. L. Inst. 1979). Further, many scholarly

authorities support the notion that bill of rights provisions in state constitutions

should be self-enforced without legislative action. See, e.g., Susan Bandes,

Reinventing Bivens: The Self-Executing Constitution, 68 S. Cal. L. Rev. 289, 340–

41 (1995); David Schuman, The Right to a Remedy, 65 Temp. L. Rev. 1197, 1200–

01 (1992).

And ninth, prior to Godfrey, a federal district court was twice called upon

to determine whether the Iowa Supreme Court would recognize that search and

seizure provisions of the Iowa Constitution were self-executing. In McCabe v.

Macaulay, the United States District Court for the Northern District of Iowa

considered whether the Iowa Supreme Court would recognize a Bivens action

under the state constitution. 551 F. Supp. 2d 771, 785 (N.D. Iowa 2007). The

court predicted that we would. Id. (noting that when faced with a new state

constitutional claim, the Iowa Supreme Court often looks to decisions of the

United States Supreme Court and other state courts of last resort, and pointing

out that the United States Supreme Court recognized a direct cause of action in
 40

Bivens). Similarly, in Peters v. Woodbury County, the same court came to the

same conclusion. 979 F. Supp. 2d 901, 971 (N.D. Iowa 2013).

The concurring opinion would not apply stare decisis with respect to

Godfrey. I think the doctrine should be fully applicable to Godfrey. In cases

involving individual rights, stare decisis has as much applicability as in other

cases.

Finally, I am concerned that the Iowa Supreme Court is moving away from

its celebrated history and is adopting the rights-restricting views of the United

States Supreme Court. But our Iowa founders followed the philosophy of George

Ells and friends, who so believed that the Bill of Rights was the most important

aspect of the Iowa Constitution that they put it front and center in the document,

with the inalienable rights provision at the front of the line. See 1 The Debates of

the Constitutional Convention of the State of Iowa 103 (W. Blair Lord rep., 1857),

http://publications.iowa.gov/7313/1/The_Debates_of_the_Constitutional_Con

vention_Vol%231.pdf (“[T]he Bill of Rights is of more importance than all the

other clauses in the Constitution put together, because it is the foundation and

written security upon which the people rest their rights.”).

While the historical Iowa Supreme Court has been recognized for refusing

to accept the prevailing rights-restricting Supreme Court doctrine, see Brent

Appel, Clark v. Board of School Directors, 67 Drake L. Rev. 237, 244–45 (2019),

our recent cases seem to have adopted an approach that does not place primacy

on the protection of individual rights but instead seeks to expand the reach of

governmental power. See, e.g., State v. McGee, 959 N.W.2d 432, 445 (Iowa 2021)
 41

(authorizing warrantless blood tests); State v. Tucker, 959 N.W.2d 140, 147 (Iowa

2021) (limiting appeals following guilty plea); State v. Warren, 955 N.W.2d 848,

864–66 (Iowa 2021) (sustaining seizure arising from completed parking

violation); State v. Brown, 930 N.W.2d 840, 846–48 (Iowa 2019) (permitting

pretextual and warrantless automobile stops); Venckus v. City of Iowa City, 930

N.W.2d 792, 800–03 (Iowa 2019) (extending judicial process immunity); AFSCME

Iowa Council 61 v. State, 928 N.W.2d 21, 41 (Iowa 2019) (curtailing public

employees’ collective bargaining rights based on arbitrary and capricious line

drawing); Baldwin v. City of Estherville, 915 N.W.2d 259, 281 (Iowa 2018)

(discovering government immunity for unconstitutional conduct). Where the

expansions of government power will ultimate lead remains to be seen. But one

of the barriers to majoritarian excess is the ability of citizens to vindicate their

constitutional rights through Godfrey claims.9 It should not be discarded like an

old shoe, but should be placed near the constitutional doorway to protect

individual liberties adopted by the people of Iowa in the very first article of the

Iowa Constitution.

9The concurring opinion does preserve money damages claims for search and seizure
violations based upon common law precedent. In my view, the common law precedent supports
a larger proposition reflected in Godfrey. In any event, as noted in Brown v. State, effective
remedies for constitutional claims are not limited to historic common law claims. See 674 N.E.2d
at 1140–41. The limitation of effective constitutional remedies to those with historic common-
law provenance is a variant of the doctrine of “original intent” to which I do not subscribe. See
State v. Wright, 961 N.W.2d 396, 421 (Iowa 2021) (Appel, J., concurring specially).
 42

#20–1148, Lennette vs. State

McDONALD, Justice (concurring).

I join in the opinion of the court. The court correctly determines there is

no genuine issue of material fact to be tried and the defendants are entitled to

judgment as a matter of law. I write separately, first, to address the defendants’

request that the court reconsider its constitutional tort jurisprudence, second,

to address the constitutional right secured by article I, section 8 of the Iowa

Constitution to pursue nonconstitutional causes of action against government

officials, and third, to address the application of article I, section 8 in criminal

proceedings.

I.

Five years ago in Godfrey v. State, this court held the due process clause

of the Iowa Constitution is self-executing and a plaintiff can pursue a

constitutional tort claim for alleged violations of the same. See 898 N.W.2d 844,

871–72 (Iowa 2017). Godfrey was unprecedented. In the one hundred and sixty

years between the adoption of the constitution and Godfrey, this court had never

recognized a constitutional tort claim. And for good reason: there was and is no

such cause of action. See id. at 882 (Mansfield, J., dissenting) (“I disagree with

the notion that constitutional monetary damage claims are some kind of time

capsule that the drafters of our constitution buried in 1857 and that can only be

unearthed now through the legal acumen of this court. The time capsule hasn’t

been found until now because no one buried it in the first place.”).
 43

Lennette seeks to extend Godfrey in this case and requests this court

recognize constitutional tort claims for alleged violations of the inalienable rights,

seizure and search, and due process clauses of the Iowa Constitution. See Iowa

Const. art. 1, §§ 1, 8, 9. The defendants request this court reject Lennette’s

request and instead overrule Godfrey. I would accept the defendants’ request. As

explained in the dissenting opinion in Godfrey, this court’s creation of a

constitutional tort was contrary to the text of the constitution and was not

supported by precedent, custom, or tradition. See 898 N.W.2d at 881–99.

Godfrey was demonstrably erroneous, and this court should overrule it. See Iowa

Const. art. XII, § 1 (providing that “any law inconsistent” with the constitution

“shall be void”); see also Gamble v. United States, 139 S. Ct. 1960, 1984 (2019)

(Thomas, J., concurring) (stating that adhering to demonstrably erroneous

constitutional precedent “disregards the supremacy of the Constitution and

perpetuates a usurpation of the legislative power”); State v. Kilby, 961 N.W.2d

374, 386 (Iowa 2021) (McDonald, J., concurring).

II.

Although I would overrule Godfrey and hold that there are no causes of

action for money damages for alleged violations of the Iowa Constitution, I would

recognize that the Iowa Constitution secures a right to assert nonconstitutional

causes of action for money damages against government officials under certain

circumstances. In particular, as relevant here, it appears that “[t]he right of the

people to be secure in their persons, houses, papers and effects, against

unreasonable seizures and searches” is a guarantee of the right to assert
 44

nonconstitutional causes of action for money damages against government

officials for unlawful seizures and searches. Iowa Const. art I, § 8.

A.

The Iowa Constitution of 1857 is “the supreme law of the state, and any

law inconsistent therewith, shall be void.” Id. art. XII, § 1. While the constitution

is the fundamental and supreme law of this state, it is also posited law. Like all

posited law, the constitution was drafted and adopted at a specific time and was

set sail on a sea of preexisting principles, statutes, precedents, customs, and

practices that gave meaning and operational effect to the text. In interpreting

and applying the constitution, this court is thus bound by the document’s

meaning in light of the authentic historical context in which it was launched:

In proceeding to give construction to a provision of the Constitution,
it is of importance that we begin by making ascertainment of the
particular object intended to be subserved. To this end we are
required primarily to look to the words employed, giving to them
meaning in their natural sense and as commonly understood. If
necessary to a fuller understanding, we may place ourselves in
touch with the makers of the instrument, and share in their view of
the general subject by reading the constitutional debates; also the
contemporary legislation, if any, having relation to the
subject-matter. We may take note of the evil as manifestly sought to
be remedied or guarded against, and of the conditions to be affected,
then existing or reasonably to be apprehended in the future, and as
disclosed by the authentic history of the state.

N.W. Halsey & Co. v. City of Belle Plaine, 104 N.W. 494, 495–96 (Iowa 1905).

Although the historical approach to constitutional interpretation is

contested by some, it has long been the law of this country. As the Great Chief

Justice explained with respect to interpreting the federal constitution:

To say that the intention of the instrument must prevail; that this
intention must be collected from its words; that its words are to be
 45

understood in that sense in which they are generally used by those
for whom the instrument was intended; that its provisions are
neither to be restricted into insignificance, nor extended to objects
not comprehended in them, nor contemplated by its framers;—is to
repeat what has been already said more at large, and is all that can
be necessary.

Ogden v. Saunders, 25 U.S. 213, 332 (1827) (Marshall, C.J., dissenting). The

Supreme Court later clearly articulated this rule of interpretation, and I quote it

at length:

The Constitution is a written instrument. As such its meaning
does not alter. That which it meant when adopted, it means now.
Being a grant of powers to a government, its language is general;
and, as changes come in social and political life, it embraces in its
grasp all new conditions which are within the scope of the powers in
terms conferred. In other words, while the powers granted do not
change, they apply from generation to generation to all things to
which they are in their nature applicable. This in no manner
abridges the fact of its changeless nature and meaning. Those things
which are within its grants of power, as those grants were
understood when made, are still within them; and those things not
within them remain still excluded.

....

It must also be remembered that the framers of the
Constitution were not mere visionaries, toying with speculations or
theories, but practical men, dealing with the facts of political life as
they understood them; putting into form the government they were
creating, and prescribing, in language clear and intelligible, the
powers that government was to take. Mr. Chief Justice Marshall, in
G[i]bbons v. Ogden, 9 Wheat. 1, 188, 6 L. [E]d. 23, 68, well declared:

‘As men whose intentions require no concealment
generally employ the words which most directly and
aptly express the ideas they intend to convey, the
enlightened patriots who framed our Constitution, and
the people who adopted it, must be understood to have
employed words in their natural sense, and to have
intended what they have said.’

One other fact must be borne in mind, and that is that in
interpreting the Constitution we must have recourse to the common
 46

law. As said by Mr. Justice Matthews in Smith v. Alabama, 124 U.S.
465, 478:

‘The interpretation of the Constitution of the
United States [is] necessarily influenced by the fact that
its provisions are framed in the language of the English
common law, and are to be read in the light of its
history.’

And by Mr. Justice Gray in United States v. Wong Kim Ark,
169 U. S. 649, 65[5], 42 L. [E]d. 890, 892, 18 Sup. Ct. Rep. 456,
459:

‘In this, as in other respects, it must be
interpreted in the light of the common law, the
principles and history of which were familiarly known
to the framers of the Constitution. The language of the
Constitution, as has been well said, could not be
understood without reference to the common law.’

South Carolina v. United States, 199 U.S. 437, 448–50 (1905) (citations omitted),

overruled on other grounds by Garcia v. San Antonio Metro. Transit Auth., 469

U.S. 528 (1985).

B.

With that background, I turn to the right at issue. The right to be free from

unreasonable seizures and searches is codified in article I, section 8 of the Iowa

Constitution. It 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.

The authentic historical context in which this right was codified reveals that the

nature and scope of the right was to fix in place the common law regime of rights
 47

and remedies governing seizures and searches and to prohibit legislative

abrogation of the same.

1.

Under the rule of law “no man is above the law” and “every man, whatever

be his rank or condition, is subject to the ordinary law of the realm and amenable

to the jurisdiction of the ordinary tribunals.” A.V. Dicey, Introduction to the Study

of the Law of the Constitution 114 (Liberty Fund ed. 1982) [hereinafter Dicey].

“Decency, security, and liberty alike demand that government officials shall be

subjected to the same rules of conduct that are commands to the citizen.”

State v. Wright, 961 N.W.2d 396, 400 (Iowa 2021) (quoting Olmstead v. United

States, 277 U.S. 438, 485 (1928), overruled by Katz v. United States, 389 U.S.

347 (1967)).

The principle of the rule of law is part of our nation’s constitutional

inheritance. In England, “every official, from the Prime Minister down to a

constable or a collector of taxes, [was] under the same responsibility for every

act done without legal justification as any other citizen.” Dicey at 114.

From time immemorial many claims affecting the Crown could be
pursued in the regular courts if they did not take the form of a suit
against the Crown. . . . If the subject was the victim of illegal official
action, in many cases he could sue the King’s officers for damages.

Louis Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77

Harv. L. Rev. 1, 1–2 (1963) [hereinafter Jaffe]; see also Money v. Leach (1765) 97

Eng. Rep. 1075 (K.B.); Entick v. Carrington (1765) 19 How. St. Tr. 1029 (K.B.);

Wilkes v. Wood (1763) 98 Eng. Rep. 489 (K.B.); Huckle v. Money (1763) 95 Eng.

Rep. 768 (C.P.).
 48

The principle of the rule of law and the concomitant right to pursue

nonconstitutional causes of action against government officials crossed the

Atlantic and was firmly anchored at the time of America’s founding. See

Hernandez v. Mesa, 140 S. Ct. 735, 748 (2020) (“[T]he traditional way in which

civil litigation addressed abusive conduct by . . . officers was by subjecting them

to liability for common-law torts.”); Jaffe, 77 Harv. L. Rev. at 2 (“This was the

situation in England at the time the American Constitution was drafted.”). This

principle informed the meaning of the federal and state constitutions at the time

of the founding. Andrew Kent, Lessons for Bivens and Qualified Immunity

Debates from Nineteenth-Century Damages Litigation Against Federal Officers,

96 Notre Dame L. Rev. 1755, 1777–78 (2021).

2.

By the time the citizens of Iowa ratified the Iowa Constitution in 1857, it

was well established throughout the country that government officials could be,

and regularly were, subject to nonconstitutional causes of action for monetary

damages. With respect to seizures or searches in particular, government officials

were subject to nonconstitutional causes of action for money damages for

seizures and searches that were unlawful, tortious, or otherwise prohibited,

subject to a defense of justification made pursuant to a valid warrant or other

legal process. See, e.g., Johnson v. Tompkins, 13 F. Cas. 840, 849 (C.C.E.D. Pa.

1833) (No. 7,416) (holding that a warrant obtained in violation of the constitution

was void and could not serve as a defense in an action for assault and false

arrest); Reed v. Legg, 2 Del. (2 Harr.) 173, 174–76 (1837) (stating that in an
 49

action for trespass, “the search warrant justifie[d] the entry of the officer”);

Simpson v. Smith, 2 Del. Cas. 285, 290 (1817) (providing that in an action for

trespass, “[t]he warrant protected the officer”); Reed v. Rice, 25 Ky. (2 J.J. Marsh.)

44, 45–47 (1829) (stating that an official asserting justification for trespass under

legal process must show valid process); Larthet v. Forgay, 2 La. Ann. 524, 525–

26 (1847) (affirming judgment in plaintiff’s favor in trespass action where officers

exceeded the scope of a search warrant); Sandford v. Nichols, 13 Mass. 286, 288–

90 (1816) (stating, in a case alleging trespass, that “the defendants could have

justified the acts complained of by showing a regular warrant from a magistrate

having jurisdiction over the subject”); Mayo v. Wilson, 1 N.H. 53, 54 (1817)

(asserting justification in response to suit for unlawful arrest); Beaty v. Perkins,

6 Wend. 382, 386 (N.Y. Sup. Ct. 1831) (“[T]he action cannot be sustained. The

warrant having been legally and regularly issued, and duly executed in the

daytime, is a protection to those who executed it, in an action of trespass.”

(emphasis omitted)); Sailly v. Smith, 11 Johns. 500, 503 (N.Y. Sup. Ct. 1814)

(“Cases, however, may occur when the officer may act unwarrantably, by

proceeding without probable cause, to break open a dwelling-house. His

conduct, in such a case, would make him liable, notwithstanding the law, to

remunerate in damages to the owner of the house. When, therefore, such

suspicions exist, it would be a more correct course for him to apply to a

magistrate, whose warrant would effectually protect him, and prevent the

necessity of showing probable cause, afterwards, by other testimony.”); Bell v.

Clapp, 10 Johns. 263, 265 (N.Y. Sup. Ct. 1813) (per curiam) (holding marshals
 50

and constable were entitled to judgment where presenting search warrant as

justification to trespass); Gardner v. Neil, 4 N.C. 104, 104 (1814) (“Every entry

by one, into the dwelling-house of another, against the will of the occupant, is a

trespass, unless warranted by such authority in law as will justify the entry.”);

Steel v. Fisk, Brayt. 230, 231 (Vt. 1816) (holding a search warrant supported an

inspector’s justification defense in an action for stolen goods); Wells v. Jackson,

17 Va. (3 Munf.) 458, 479 (1811) (“This requisite degree of certainty in all

warrants, is not only necessary for the security of the citizens, against the

mistakes, oppression, or misjudgment of subordinate officers, but is also

necessary in behalf of those officers themselves. They are justified if they act in

obedience to the warrant.”).

Iowa’s earliest precedents were in accord with the national consensus.

Iowa law allowed “traditional common law tort claims, such as trespass,

conversion, malicious prosecution, and abuse of process” to be asserted against

government officials. Godfrey, 898 N.W.2d at 887. Under Iowa law, plaintiffs

could seek nominal, actual, and punitive damages against offending officials and

their sureties for their unlawful conduct. See Wright, 961 N.W.2d at 406;

McClurg v. Brenton, 98 N.W. 881, 883 (Iowa 1904) (“If the jury should find for

plaintiff—that the wrongful search was made . . . —they could, in addition to

actual damages, assess a greater or less sum against the defendants by way of

punishment or as exemplary damages.”); Yount v. Carney, 60 N.W. 114, 115–16

(Iowa 1894) (“The arrests and detentions of the plaintiff were in the presence of

a number of persons, and in public places of the town. At the last arrest the
 51

plaintiff’s person was searched, and his private papers examined. Mental

suffering and injury to feelings are proper to be considered in assessing damages

in such cases. We think, under the evidence, the question of damages should

have been submitted to the jury.” (citation omitted)); Holmes v. Blyler, 45 N.W.

756, 756 (Iowa 1890) (holding good faith was not a defense to liability in false

arrest action but could be advanced to mitigate damages); Tieman v. Haw, 49

Iowa 312, 315 (1878) (“The sureties of a sheriff are liable for a trespass committed

by their principal in attempting to discharge his duty as an officer.”); Strunk v.

Ocheltree, 11 Iowa 158, 159–60 (1860) (“The defendant [constable] levied upon

the property and took possession of it by virtue of his office, and sold the same

when he had no right to do so. . . . The wrong was committed by color of his

office, a wrong which his sureties obligated themselves he would not do, and for

which they should be held responsible.”); Plummer v. Harbut, 5 Iowa (5 Clarke)

308, 314 (1857) (“If defendants, in executing the process, acted in good faith,

and in their entry upon plaintiff’s premises, were guilty of no oppression, and

made no disturbance, further than was necessary in making the seizure, the

trespass, even if without authority, was nominal only, and nominal damages

must limit the extent of his recovery.”).

And, under Iowa law, government officials could assert a justification

defense to these causes of action pursuant to a valid warrant or other process.

See, e.g., Chambers v. Oehler, 77 N.W. 853, 854–55 (Iowa 1899) (holding a justice

of the peace could be held liable for false imprisonment when plaintiff was

arrested based on subpoena that justice had no authority to issue); Bradley v.
 52

Miller, 69 N.W. 426, 426 (Iowa 1896) (“It is elementary doctrine that the levy of

an attachment upon the property of a stranger to the writ is a trespass on the

rights of the owner, who may maintain either trover, trespass, or replevin, not

only against the officer serving the writ, but also against the plaintiff in the

suit.”); Yount, 60 N.W. at 114–16 (holding plaintiff had stated a cause of action

for false imprisonment against a marshal where plaintiff had been wrongly

arrested for horse theft); Morgan v. Zenor, 55 N.W. 197, 198 (Iowa 1893) (holding

plaintiff could not maintain an action for replevin against a sheriff where the

goods in question were seized pursuant to valid process); Carpenter v. Scott, 53

N.W. 328, 329 (Iowa 1892) (allowing exemplary damages against an officer for

unlawful seizure of property); Wert v. Potts, 41 N.W. 374 (Iowa 1889) (considering

claims by plaintiff that he was assaulted and battered by officers during the

course of an arrest of a third party); State v. Ward, 36 N.W. 765, 767 (Iowa 1888)

(stating a constable may have committed a trespass when he seized liquor from

a railcar without a warrant); Clancy v. Kenworthy, 35 N.W. 427, 428 (Iowa 1887)

(upholding verdict finding a constable liable for false imprisonment, excessive

force, and malicious prosecution); Arneson v. Thorstad, 33 N.W. 607, 608–09

(Iowa 1887) (upholding verdict in favor of defendant constable for false

imprisonment and oppressive conduct in connection with an arrest);

Montgomery v. Sutton, 25 N.W. 748, 749 (Iowa 1885) (reversing judgment in favor

of plaintiff against a marshal for false imprisonment and malicious prosecution

where marshal had reasonable grounds to make arrest and plaintiff had resisted

arrest); Lanpher v. Dewell, 9 N.W. 101, 102 (Iowa 1881) (stating a justice of the
 53

peace could be liable for false imprisonment for ordering plaintiff’s confinement

“without authority or jurisdiction”); Greet v. Talbot, 36 Iowa 499, 500 (1873)

(holding that the mayor of the town could not be held liable for false

imprisonment where the mayor believed erroneously, but in good faith, that the

town ordinance allowed the mayor to jail plaintiff); Allen v. Leonard, 28 Iowa 529,

530–31 (1870) (holding wrongfully accused man had not sated causes of action

for battery or false imprisonment but could have stated a cause of action for

malicious prosecution); State v. Ross, 21 Iowa 467, 471 (1866) (rejecting claims

by defendants that they could not be criminally prosecuted despite being

arrested in Missouri in violation of that state’s law); Mayo v. Sample, 18 Iowa

306, 310–11 (1865) (rejecting plaintiff’s cause of action against a police chief for

slander, as accusations by police chief that plaintiff was a thief were privileged);

Hutchinson v. Sangster, 4 Greene 340, 341–42 (Iowa 1854) (rejecting claims

against a marshal for false imprisonment and trespass by plaintiff who was

arrested for drunkenly interrupting church service).

The Supreme Court, quoting Lord Camden’s discussion in Entick v.

Carrington, later explained that this private law regime was foundational:

The great end for which men entered into society was to secure their
property. That right is preserved sacred and incommunicable in all
instances where it has not been taken away or abridged by some
public law for the good of the whole. . . . [E]very invasion of private
property, be it ever so minute, is a trespass. No man can set his foot
upon my ground without my license, but he is liable to an action,
though the damage be nothing, which is proved by every declaration
in trespass where the defendant is called upon to answer for
bruising the grass and even treading upon the soil. If he admits the
fact, he is bound to show, by way of justification, that some positive
law has justified or excused him. The justification is submitted to
 54

the judges, who are to look into the books, and see if such a
justification can be maintained by the text of the statute law, or by
the principles of the common law. If no such excuse can be found or
produced, the silence of the books is an authority against the
defendant, and the plaintiff must have judgment. According to this
reasoning, it is now incumbent upon the defendants to show the law
by which this seizure is warranted. If that cannot be done, it is a
trespass.

Boyd v. United States, 116 U.S. 616, 627 (1886) (quoting Entick, 19 How. St. Tr.

1029), overruled by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967).

3.

When the text of the Iowa Constitution is read in its authentic historical

context, the original meaning of the constitutional prohibition against

unreasonable seizures and searches becomes clear. See generally Kansas v.

Colorado, 206 U.S. 46, 94–95 (1907) (stating the “common law throws light on

the meaning and scope of the Constitution of the United States” and the

Constitution “must be interpreted in the light of the common law, the principles

and history of which were familiarly known to the framers of the Constitution”

(quoting Wong Kim Ark, 169 U.S. at 654)). As explained in State v. Wright, the

prohibition against unreasonable seizures and searches was nothing more than

a great affirmance of the common law:

John Adams first introduced the term “unreasonable” into search
and seizure law in his draft of the 1780 Massachusetts Constitution.
See Commonwealth v. Haynes, 116 A.3d 640, 650 (Pa. Super. Ct.
2015). “Adams’s authorship reveals that ‘unreasonable’ was derived
from Sir Edward Coke’s earlier use of ‘against reason’ as a synonym
for inherent illegality or unconstitutionality.” Thomas Y. Davies,
Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547,
554–55 (1999).

The Fourth Amendment did not refer to reasonableness in a
relativistic, balancing sense. “Originally, the word ‘unreasonable’ in
 55

the Fourth Amendment likely meant ‘against reason’—as in ‘against
the reason of the common law.’ ” Carpenter v. United States, [138 S.
Ct. 2206, 2243] (2018) (Thomas, J., dissenting) (quoting Laura K.
Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181,
1270 (2016)); see also Torres v. Madrid, [141 S. Ct. 989, 996] (2021)
(“Early American courts . . . embraced other common law principles
of search and seizure.”); United States v. Carloss, 818 F.3d 988,
1006 (10th Cir. 2016) (Gorsuch, J., dissenting) (“[T]he Fourth
Amendment, at a minimum, protects the people against searches of
their persons, houses, papers, and effects to the same degree the
common law protected the people against such things at the time of
the founding, for in prohibiting ‘unreasonable’ searches the
Amendment incorporated existing common law restrictions on the
state’s investigative authority.”). Justice Story, in his leading treatise
on the Federal Constitution, stated the prohibition against
unreasonable seizures and searches “is little more than the
affirmance of a great constitutional doctrine of the common law.” 3
Joseph Story, Commentaries on the Constitution of the United States
§§ 1894–1895, at 748 (1833). “[B]y prohibiting ‘unreasonable’
searches and seizures in the Fourth Amendment, the Founders
ensured that the newly created Congress could not use legislation
to abolish the established common-law rules of search and seizure.”
Carpenter, [138 S. Ct. at 2243].

961 N.W.2d at 404–05 (omission and third and fourth alterations in original).

This authentic historical reading of the Iowa Constitution is supported by

the persuasive authorities. By the time of Iowa’s founding, other states had

already concluded that their constitutional seizure and search provisions were

an affirmance of the common law regulatory regime, including the right to bring

nonconstitutional causes of action against government officials for seizures and

searches conducted in violation of the law. See, e.g., Larthet, 2 La. Ann. at 525–

26 (explaining the Fourth Amendment was “an affirmance of a great

constitutional doctrine of the common law”); Mayo, 1 N.H. at 56 (stating the

constitution adopts the common law and the text should be understood as it was

at common law); Wakely v. Hart, 6 Binn. 316, 319 (Pa. 1814) (“These are
 56

principles of the common law, essential to the welfare of society, and not

intended to be altered or impaired by the constitution. The whole section indeed

was nothing more than an affirmance of the common law, for general warrants

have been decided to be illegal.”); Wells, 17 Va. (3 Munf.) at 481 (concluding a

warrant was “illegal and void, upon the principles of the common law”). This

interpretation of the constitutional prohibition against unreasonable seizures

and searches was widely accepted hornbook law at the time of Iowa’s founding.

See, e.g., Thomas M. Cooley, A Treatise on the Constitutional Limitations Which

Rest Upon the Legislative Power of the States of the American Union 302–03 (1st

ed. 1868) [hereinafter Cooley] (discussing the history of seizures and searches

and concluding “it has not been deemed unwise to repeat in the State

constitutions, as well as in the national, the principles already settled in the

common law upon this vital point in civil liberty” (footnote omitted)).

The constitutional prohibition against unreasonable seizures and

searches, as originally understood, was an injunction against lawmakers. It

prohibited lawmakers from abrogating the preexisting common law regime of

rights and remedies. See Carpenter, 138 S. Ct. at 2243 (“[B]y prohibiting

‘unreasonable’ searches and seizures in the Fourth Amendment, the Founders

ensured that the newly created Congress could not use legislation to abolish the

established common-law rules of search and seizure.”); Adams v. New York, 192

U.S. 585, 598 (1904) (“The security intended to be guaranteed by the 4th

Amendment against wrongful search and seizures is designed to prevent

violations of private security in person and property and unlawful invasion of the
 57

sanctity of the home of the citizen by officers of the law, acting under legislative

or judicial sanction, and to give remedy against such usurpations when

attempted.”); State v. Griswold, 34 A. 1046, 1047 (Conn. 1896) (explaining the

Connecticut Constitution “forbids the legislature to enact any statute, and the

courts from passing any rule, which would authorize any unreasonable search

or seizure of the goods of a citizen . . . . The theory of the defendant is that that

act was a trespass. For the present purposes, that theory may be granted to be

the true one. And what then? The police officers would be liable, in a proper

action, to pay to the defendant all damage they had done him”); State v. Fuller,

85 P. 369, 372–74 (Mont. 1906) (“The provision in the state and federal

Constitutions is therefore a limitation upon the powers of the respective

governments declaring all searches and seizures unlawful and forbidding the

Legislature and the Congress to authorize them . . . and the redress for the wrong

therein denounced is an appropriate action directly against those who have been

guilty of trespass.”).

One of the specific ways in which the constitutional prohibition against

unreasonable seizures and searches limited the power of lawmakers was its

prohibition on legislation authorizing the use of general warrants (or enacting

laws that would have the same effect). See Thomas Y. Davies, An Account of Mapp

v. Ohio That Misses the Larger Exclusionary Rule Story, 4 Ohio St. J. Crim. L.

619, 623 (2007) (“The constitutional criminal procedure standards in the Bill of

Rights were framed in 1789 to prevent legislative relaxation of basic common-

law protections, such as the common-law ban against general warrants.”). Recall
 58

that valid warrants or other process were a defense to nonconstitutional causes

of action against government officials. The constitution simply prohibited the

legislature from authorizing a justification defense on anything less than a

warrant issued “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. 1, § 8.

Another way in which the constitutional prohibition against unreasonable

seizures and searches limited lawmakers was that it protected traditional

remedies. The constitutional protection for traditional remedies included “a right

of action for damages” for conduct by a government official that was unlawful,

tortious, or otherwise prohibited, on the same grounds as one would pursue any

cause of action against a private citizen. Girard v. Anderson, 257 N.W. 400, 402–

03 (Iowa 1934). This was the view of Chief Justice Marshall, who concluded that

any law immunizing officials from liability was void:

The federal sheriff, says he, will go into a poor man’s house and beat
him, or abuse his family, and the federal court will protect him. Does
any gentleman believe this? Is it necessary that the officers will
commit a trespass on the property or persons of those with whom
they are to transact business? Will such great insults on the people
of this country be allowable? Were a law made to authorize them, it
would be void. The injured man would trust to a tribunal in his
neighborhood. To such a tribunal he would apply for redress, and
get it. There is no reason to fear that he would not meet that justice.

John Marshall, Virginia Ratifying Convention (June 20, 1788), reprinted in 3 The

Debates in the Several State Conventions on the Adoption of the Federal

Constitution 554 (Jonathan Elliot ed., 1836). The leading treatise at the time of

the enactment of the Iowa Constitution was in accord with Chief Justice
 59

Marshall’s understanding, providing that the constitution directed “the

legislature to regard all those searches and seizures ‘unreasonable’ which have

hitherto been unknown to the law, and on that account to abstain from

authorizing them; leaving parties and the public to the accustomed remedies.”

Cooley at 307 (emphasis added).

4.

Relevant doctrine at the time of Iowa’s founding dictates the conclusion

that article I, section 8 of the Iowa Constitution, as originally understood,

guaranteed a right to pursue civil causes of action against government officials.

Under modern seizure and search doctrine, article I, section 8 is understood to

establish a substantive standard of “reasonableness” that directly regulates the

conduct of an executive branch official conducting a seizure or search. Further,

under modern seizure and search doctrine, judges, rather than juries, are to

determine whether the executive branch official engaged in unreasonable

conduct. But our modern seizure and search doctrine would not have made any

sense to the framers of the Iowa Constitution.

At the time of Iowa’s founding, article I, section 8 could not have been

understood to establish a substantive standard of “reasonableness” that

regulated the conduct of executive branch officials conducting seizures or

searches because there was no conception that such officials were subject to

constitutional restraint. Our modern doctrine—that officials conducting seizures

or searches are state actors whose conduct could be considered constitutional
 60

or unconstitutional—arose only after (long after) the enactment of the Iowa

Constitution. As one scholar has explained:

[T]he Framers . . . did not anticipate that a wrongful act by an officer
might constitute a form of government illegality--rather, they viewed
such misconduct as only a personal trespass by the person who held
the office. Thus, there was neither a need nor a basis for addressing
the conduct of a warrantless officer in a constitutional provision
regulating government authority. (Likewise, because unlawful acts
by officers were only personal, it never occurred to the Framers to
apply an exclusionary principle to such misconduct.) The modern
notion that an officer’s misconduct constitutes government illegality
appears to reflect a redefinition of the boundary of government
action articulated during the late nineteenth-century formulation of
“state action” doctrine under the Fourteenth Amendment. However,
that constituted a low-visibility revolution in constitutional thought;
the Framers had no such concept.

Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. at 554.10

At the time of Iowa’s founding, a plaintiff thus could not seek damages

against a government entity employing an offending official because an official

engaged in conduct that was unlawful, tortious, or otherwise prohibited was not

considered an agent of the government. See Easterly v. Incorporated Town of

Irwin, 68 N.W. 919, 920 (Iowa 1896) (“But the question remains, is the defendant

responsible for the acts of its officers in such cases? The rule of law seems to be

well settled that a city or town is not liable for the acts of its officers in attempting

10See also Thomas Y. Davies, Can You Handle the Truth? The Framers Preserved Common-
Law Criminal Arrest and Search Rules in “Due Process of Law”-“Fourth Amendment
Reasonableness” Is Only A Modern, Destructive, Judicial Myth, 43 Tex. Tech L. Rev. 51 (2010);
Thomas Y. Davies, The Supreme Court Giveth and the Supreme Court Taketh Away: The Century
of Fourth Amendment “Search and Seizure” Doctrine, 100 J. Crim. L. & Criminology 933 (2010);
Thomas Y. Davies, Correcting Search-and-Seizure History: Now-Forgotten Common-Law
Warrantless Arrest Standards and the Original Understanding of “Due Process of Law”, 77 Miss.
L.J. 1 (2007); Thomas Y. Davies, An Account of Mapp v. Ohio That Misses the Larger Exclusionary
Rule Story, 4 Ohio St. J. Crim. L. 619 (2007); Thomas Y. Davies, The Fictional Character of Law-
and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest
Doctrine in Atwater v. Lago Vista, 37 Wake Forest L. Rev. 239 (2002).
 61

to enforce its police regulations, for the reason that in such matters the officers

can in no sense be regarded as the agents or servants of the city.”); Calwell v.

City of Boone, 2 N.W. 614, 615 (Iowa 1879) (“The police regulations of a city are

not made and enforced in the interest of a city in its corporate capacity, but in

the interest of the public. A city is not liable, therefore, for the acts of its officers

in attempting to enforce such regulations.”).

The modern conception that article I, section 8 created a substantive

standard of “reasonableness” governing seizures and searches is a prochronistic

error that imposes, post hoc, principles of state action, agency law, and vicarious

liability that run directly counter to the law at the time of Iowa’s founding. In the

absence of any concept of state action, article I, section 8 would have legal effect

only if it prohibited lawmakers from undermining the common law regime of

rights and remedies.

In a decision postdating Iowa’s founding, the Supreme Court of Georgia

articulated the original meaning and operational effect of the constitutional

prohibition against unreasonable seizures and searches:

Irrespective of the many respectable authorities above referred
to, and speaking for ourselves, we are satisfied that the contention
of the accused, that her constitutional rights were infringed by the
ruling of the trial judge admitting the evidence complained of, ought
not to be sustained. As we understand it, the main, if not the sole,
purpose of our constitutional inhibitions against unreasonable
searches and seizures, was to place a salutary restriction upon the
powers of government. That is to say, we believe the framers of the
constitutions of the United States and of this and other states merely
sought to provide against any attempt, by legislation or otherwise,
to authorize, justify, or declare lawful, any unreasonable search or
seizure. This wise restriction was intended to operate upon
legislative bodies, so as to render ineffectual any effort to
legalize by statute what the people expressly stipulated could
 62

in no event be made lawful; upon executives, so that no law
violative of this constitutional inhibition should ever be
enforced; and upon the judiciary, so as to render it the duty of
the courts to denounce as unlawful every unreasonable search
and seizure, whether confessedly without any color of
authority, or sought to be justified under the guise of legislative
sanction. For the misconduct of private persons, acting upon
their individual responsibility and of their own volition, surely
none of the three divisions of government is responsible. If an
official, or a mere petty agent of the state, exceeds or abuses
the authority with which he is clothed, he is to be deemed as
acting, not for the state, but for himself only; and therefore he
alone, and not the state, should be held accountable for his acts.
If the constitutional rights of a citizen are invaded by a mere
individual, the most that any branch of government can do is
to afford the citizen such redress as is possible, and bring the
wrongdoer to account for his unlawful conduct. The office of the
federal and state constitutions is simply to create and declare
these rights.

Williams v. State, 28 S.E. 624, 627–28 (Ga. 1897) (emphasis added), abrogation

recognized by Mobley v. State, 834 S.E.2d 785, 794 (Ga. 2019).

C.

It seems clear to me that article I, section 8 of the Iowa Constitution, as

originally understood, protected and guaranteed the right to assert

nonconstitutional causes of action against government officials for conduct

relating to seizures and searches. How far that protection and guarantee extends

and whether the nature of the right must be reconsidered in light of subsequent

doctrinal developments, such as the state action doctrine, are good questions

that should be considered further. At first blush, however, it appears that

article I, section 8, as originally understood, has implications for civil litigants

who, like Lennette, claim to be aggrieved by allegedly unlawful seizures and

searches. A strong argument can be made that such litigants need not assert
 63

constitutional causes of action for alleged violations of article I, section 8

because article I, section 8 itself preserves a constitutional right to assert

nonconstitutional causes of action against government officials. The State

certainly has the right to assert its immunity as sovereign from any such claims,

but it appears article I, section 8 precludes the State from extending its cloak of

sovereign immunity to government officials who commit tortious conduct. Cf.

Iowa Code § 669.14(4) (2022) (barring claims against the state for “assault,

battery, false imprisonment, false arrest, malicious prosecution, abuse of

process, libel, [and] slander”). In reaching that conclusion, I am not navigating

in uncharted waters; this court reached the same conclusion years ago:

No man in this country is so high that he is above the law. No officer
of the law may set that law at defiance with impunity. All the officers
of the government, from the highest to the lowest, are creatures of
the law and are bound to obey it. It is the only supreme power in our
system of government, and every man, who by accepting office
participates in its functions, is only the more strongly bound to
submit to that supremacy, and to observe the limitations which it
imposes upon the exercise of the authority which it gives. Courts of
justice are established, not only to decide upon the controverted
rights of the citizens as against each other, but also upon rights in
controversy between them and the government; and the docket of
this court is crowded with controversies of the latter class.

Hoover v. Iowa State Hwy. Comm’n, 222 N.W. 438, 439–40 (Iowa 1928) (quoting

United States v. Lee, 106 U.S. 196, 220 (1882)).

III.

The original meaning of article I, section 8 also has important implications

for the administration of criminal law.
 64

A.

The original meaning of article I, section 8 counsels in favor of

reconsidering the exclusionary rule. As demonstrated above, at the time of Iowa’s

founding, a government official obtaining evidence or effecting an arrest in an

unlawful, tortious, or otherwise prohibited manner did not violate the

constitution. The government official’s conduct was private misconduct giving

rise to private redress. See, e.g., Ward, 36 N.W. at 767 (rejecting constitutional

argument despite recognizing that the “officer in this case may have been guilty

of a trespass”). As we explained in State v. Tonn, the rejection of the exclusionary

rule does “not detract one iota from the full protection vouchsafed to the citizen

by the constitutional provisions [because a] trespassing officer is liable for all

wrong done in an illegal search or seizure.” 191 N.W. 530, 534–36 (Iowa 1923),

abrogated by State v. Hagen, 137 N.W.2d 895 (Iowa 1965).

The fundamental defect of the exclusionary rule, as it relates to seizures

and searches, is not that it is a bad remedy, it is that it is no remedy at all given

the nature of the constitutional right as originally understood and implemented.

See State v. Nelson, 300 N.W. 685, 688 (Iowa 1941) (explaining the exclusionary

rule “has a strange sound” for a remedy of when the constitutional prohibition

is “viewed in the light of its origin and history” (quoting People v. Defore, 150 N.E.

585, 589 (N.Y. 1926))). This explains why this court rejected the exclusionary

rule for so long. See State ex rel. Hanrahan v. Miller, 98 N.W.2d 859, 861 (Iowa

1959); State v. Smith, 73 N.W.2d 189, 190 (Iowa 1955); State ex rel. Kuble v.

Bisignano, 28 N.W.2d 504, 507–08 (Iowa 1947); State v. Bradley, 3 N.W.2d 133,
 65

134–35 (Iowa 1942); State v. Gillam, 300 N.W. 567, 568 (Iowa 1941); State v.

Rowley, 248 N.W. 340, 342–43 (Iowa 1933); State v. Bourgeois, 229 N.W. 231,

232 (Iowa 1930); State v. Rollinger, 225 N.W. 841, 841 (Iowa 1929); State v.

Bamsey, 223 N.W. 873, 874 (Iowa 1929); State v. Lambertti, 215 N.W. 752, 753

(Iowa 1927); State v. Korth, 215 N.W. 706, 707 (Iowa 1927); State v. Wenks, 202

N.W. 753, 753 (Iowa 1925); McNamara v. Utterback, 200 N.W. 699, 700 (Iowa

1924); Lucia v. Utterback, 198 N.W. 626, 628 (Iowa 1924); State v. Rowley, 195

N.W. 881, 881–82 (Iowa 1923); Foley v. Utterback, 195 N.W. 721, 722 (Iowa 1923)

(per curiam); Joyner v. Utterback, 195 N.W. 594, 596 (Iowa 1923).

Indeed, the federal exclusionary rule arose out of a case challenging the

legality of a statute and not the conduct of an individual officer. The federal

exclusionary rule is generally thought to have originated in the Supreme Court’s

decision in Boyd v. United States, 116 U.S. 616. Boyd involved the forfeiture of

property due to a violation of customs and revenue laws. Id. at 617. Under a

federal statute governing customs and revenue laws, the claimants were required

to produce documentation regarding their business activities. Id. at 618. The

claimants did not challenge an official’s conduct as unlawful. See id. Instead,

they challenged the legality of the statute requiring the production of documents.

Id. The court held that the “law which authorized the order” of production was

“unconstitutional and void” and the documents produced pursuant to the

statute could not be used in evidence. Id. at 638. Boyd is consistent with the

original understanding of the Fourth Amendment, as articulated above, insofar

as it recognizes that the Fourth Amendment applied to lawmakers and not
 66

officers in the field. An officer’s individual conduct was left to the common law

and private redress.

Of course, modern doctrinal developments, particularly the state action

doctrine, and factual developments, including the emergence of an investigative,

professionalized police force, may now require additional remedies beyond

private rights of action and may counsel in favor of continued adherence to the

exclusionary rule. In making that determination, however, we should approach

the question with an open mind in light of the constitution’s text as informed by

context, precedent, and history.

B.

To the extent this court and other courts continue to hold the

constitutional prohibition against unreasonable seizures and searches sets a

substantive standard of conduct regulating government officials, what is deemed

reasonable should correlate to the common law regime the constitutional right

was meant to protect from legislative abrogation.

Correcting course and reconnecting the concept of reasonableness to

common law or positive law largely solves the frequently litigated issue of when

a warrant is required. The common law or positive law approach recognizes that

the constitutional prohibition against unreasonable seizures and searches does

not, despite numerous pronouncements to the contrary, impose a warrant

requirement in all circumstances with carefully drawn exceptions. “What it

explicitly states regarding warrants is by way of limitation upon their issuance

rather than requirement of their use.” California v. Acevedo, 500 U.S. 565, 581
 67

(1991) (Scalia, J., concurring). But the common law or positive law approach

does tell us when a warrant is required: generally speaking, an officer engaged

in general criminal investigation must obtain a warrant before engaging in means

and methods of investigation that are unlawful, tortious, or otherwise prohibited

because the warrant serves (and would have served in the founding era) as the

officer’s legal authorization, or justification, to engage in actionable or prohibited

conduct. Wright, 961 N.W.2d at 416 (“Within the meaning of article I, section 8,

an officer acts unreasonably when, without a warrant, the officer physically

trespasses on protected property or uses means or methods of general criminal

investigation that are unlawful, tortious, or otherwise prohibited.”); see also

William Baude & James Y. Stern, The Positive Law Model of the Fourth

Amendment, 129 Harv. L. Rev. 1821, 1825–26 (2016) [hereinafter Baude &

Stern].

Consider an example that, in my view, demonstrates why the common law

or positive law approach is more sensible than a general “reasonableness”

standard: a police officer searches the Internet for information regarding a

suspect and searches through the suspect’s public Facebook posts to obtain

information about the suspect. Under modern search doctrine, a court would

say that the police officer’s search was not a “search” within the meaning of the

constitutional prohibition because the search did not violate the suspect’s

reasonable expectation of privacy. See, e.g., United States v. Meregildo, 883 F.

Supp. 2d 523, 526 (S.D.N.Y. 2012) (“Because Colon surrendered his expectation

of privacy, the Government did not violate the Fourth Amendment when it
 68

accessed Colon’s Facebook profile through a cooperating witness.”); State v.

Breuer, 577 N.W.2d 41, 45 (Iowa 1998) (“[A] search is said to have occurred when

the government unreasonably intrudes upon an individual’s reasonable or

legitimate expectation of privacy.”). This approach is contrary to common sense

and the plain language of the constitutional prohibition. See Minnesota v. Carter,

525 U.S. 83, 97, (1998) (Scalia, J., concurring) (explaining that when modern

doctrine is applied “to determine whether a ‘search or seizure’ within the

meaning of the Constitution has occurred (as opposed to whether that ‘search or

seizure’ is an ‘unreasonable’ one), it has no plausible foundation in the text of

the Fourth Amendment” (emphasis omitted)).

Consider the same example under the common law or positive law

approach to the constitution. Under this traditional approach, the officer’s

search of the Internet was, in fact, a search, as that term is commonly

understood. However, the officer did not need to obtain a warrant to conduct the

search because the officer did not violate any law or engage in any conduct that

would have required the legal justification of a warrant. See Wright, 961 N.W.2d

at 417 (holding officer violated article I, section 8 when he conducted a

warrantless search of the defendant’s papers and effects contained in a trash

bag in violation of a municipal ordinance); Baude & Stern, 129 Harv. L. Rev. at

1825–26.

IV.

“This court is the final arbiter of the meaning of the Iowa Constitution.

While we give respectful consideration to the decisions of the United States
 69

Supreme Court in its interpretation of parallel provisions of the Federal

Constitution, we have a duty to independently interpret the Iowa Constitution.”

Wright, 961 N.W.2d at 402. In my view, article I, section 8 was meant to protect

and maintain a robust common law, or positive law, regime regulating the

conduct of government officials. This court should seek to give effect to that

meaning even where it may deviate from current federal jurisprudence. With that

understanding, I join the court’s opinion disposing of Lennette’s constitutional

and nonconstitutional claims.