Wilson v. Lamp

• Citation: 901 F.3d 981
• Decision Date: 28 August 2018
• Docket Number: No. 16-4337,No. 16-4275,16-4275
• Parties: Levi WILSON, Individually; M W, by and through his next friend Levi Wilson, Plaintiffs - Appellees v. Scott LAMP, in his individual and official capacity; Iowa, State of, Defendants - Appellants Jessica Dorhout-VanEngen, in her individual and official capacity ; John Doe, in his individual and official capacity, Defendants Levi Wilson, Individually; M W, by and through his next friend Levi Wilson, Plaintiffs - Appellees v. Scott Lamp, in his individual and official capacity; Iowa, State of, Defendants Jessica Dorhout-VanEngen, in her individual and official capacity, Defendant - Appellant John Doe, in his individual and official capacity, Defendant
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

901 F.3d 981

Levi WILSON, Individually; M W, by and through his next friend Levi Wilson, Plaintiffs - Appellees

v.Scott LAMP, in his individual and official capacity; Iowa, State of, Defendants - Appellants

Jessica Dorhout-VanEngen, in her individual and official capacity ; John Doe, in his individual and official capacity, Defendants

Levi Wilson, Individually; M W, by and through his next friend Levi Wilson, Plaintiffs - Appellees

v.Scott Lamp, in his individual and official capacity; Iowa, State of, Defendants

Jessica Dorhout-VanEngen, in her individual and official capacity, Defendant - Appellant

John Doe, in his individual and official capacity, Defendant

No. 16-4275

No. 16-4337

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2017

Filed: August 28, 2018

Michael J. Jacobsma, JACOBSMA & CLABAUGH, Sioux Center, IA, for Plaintiffs - Appellees.

David Locksley D. Faith, II, Jeffrey C. Peterzalek, Jeffrey S. Thompson, ATTORNEY GENERAL'S OFFICE, Des Moines, IA, for Defendants - Appellants Scott Lamp, Iowa, State of.

Douglas L. Phillips, Deena Ann Townley, KLASS LAW FIRM, Sioux City, IA, for Defendants - Appellants.

Before GRUENDER and BENTON, Circuit Judges, and TUNHEIM¹ , District Judge.

TUNHEIM, District Judge, concurs in the result.

BENTON, Circuit Judge.

Levi S. Wilson and his minor son, M.W., sued two officers for unreasonable search and seizure, and use of excessive force under 42 U.S.C. § 1983. The district court denied the officers’ motions for summary judgment. Having jurisdiction under 28 U.S.C. § 1291, this court reverses in part, affirms in part, and remands.

I.

The parties dispute the following facts, which are stated here favorably to the plaintiffs. On September 23, 2014, officers Scott E. Lamp and Jessica Dorhout-VanEngen were surveilling a park. Based on conversations with Hollie Vlietstra—Levi’s ex-girlfriend, and the mother of M.W. and a minor girl—the officers believed a convicted child molester, David C. Wilson, was meeting the minor girl at 8:00 p.m. at the park. David had multiple outstanding warrants. The officers knew that David’s brother, Levi, and seven-year-old M.W. were at a Boy Scout meeting and would leave the park around 8:00 p.m. to meet Vlietstra. At about 7:10 p.m., the officers received a call that someone had just driven away without paying for gas. An attendant identified David as the driver of the vehicle, quickly determined to be Levi’s. At 7:50 p.m., a pickup truck with a covered bed—which had been parked during the officers’ surveillance—left the park. The officers knew it also belonged to Levi. After following the truck for a few minutes, they stopped it. They approached with guns drawn. They told the driver to put his hands up. He complied. Officer Dorhout-VanEngen recognized Levi and called him by name. The officers ordered him out of the truck. He complied. Officer Lamp grabbed Levi and threw him against the truck, with a gun pointed at the back of his head. The officers did a patdown of Levi. They searched the vehicle and left. Throughout the stop, Levi and M.W. had at least one weapon pointed at them. Levi and M.W. now both suffer from and receive treatment for post-traumatic stress disorder

.

The officers sought summary judgment, asserting qualified immunity. The district court denied qualified immunity. The officers appeal.

II.

Levi and M.W. argue that this court lacks jurisdiction. They agree that this court may review the denial of qualified immunity if the issue "is a purely legal one: whether the facts alleged ... support a claim of violation of clearly established law." See Pace v. City of Des Moines , 201 F.3d 1050, 1052 (8th Cir. 2000), quoting Mitchell v. Forsyth , 472 U.S. 511, 528 n.9, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). However, Levi and M.W. believe that because the issues on appeal are based in fact, this court lacks jurisdiction. See Johnson v. Jones , 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). To the contrary, the officers’ arguments address the legal determinations of the district court based on the facts viewed favorably to Levi and M.W. This court has jurisdiction.

III.

This court "review[s] the district court’s grant of summary judgment de novo , viewing the record in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor." Chambers v. Pennycook , 641 F.3d 898, 904 (8th Cir. 2011). The denial of qualified immunity is reviewed de novo. Boude v. City of Raymore , 855 F.3d 930, 933 (8th Cir. 2017). Government actors have qualified immunity as a shield against litigation if their actions do not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). To defeat qualified immunity, the plaintiff has the burden to prove: "(1) the facts, viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right; and (2) the right was clearly established at the time of the deprivation." Howard v. Kansas City Police Dep’t , 570 F.3d 984, 988 (8th Cir. 2009). See Pearson v. Callahan , 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (recognizing the court’s discretion in deciding "which of the two prongs of the qualified immunity analysis should be addressed first").

A. Unreasonable Search and Seizure

"The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest." United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (citation omitted). "And in determining whether the seizure and search were ‘unreasonable,’ " this court looks at "whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio , 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The search "must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible." Id. at 19, 88 S.Ct. 1868, quoting Warden v. Hayden , 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring). The officer must have "a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ " United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), quoting Terry , 392 U.S. at 30, 88 S.Ct. 1868. Reasonable suspicion requires "some minimal level of objective justification." I.N.S. v. Delgado , 466 U.S. 210, 216-17, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). A stop made on a ‘hunch’ is insufficient. Terry , 392 U.S. at 22, 27, 88 S.Ct. 1868. This court looks at the totality of the circumstances in analyzing whether an objective justification existed. See Arvizu , 534 U.S. at 273, 122 S.Ct. 744. "[T]he limitations which the Fourth Amendment places upon a protective seizure and search for weapons ... will have to be developed in the concrete factual circumstances of individual cases." Terry , 392 U.S. at 29, 88 S.Ct. 1868. "Reasonable suspicion is not a ‘finely-tuned’ or bright-line standard; each case involving a determination of reasonable suspicion must be decided on its own facts." United States v. Roggeman , 279 F.3d 573, 578 (8th Cir. 2008), citing Ornelas v. United States , 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)and Terry , 392 U.S. at 29, 88 S.Ct. 1868.

I.

Levi and M.W. argue that the officers lacked reasonable suspicion to stop their truck. The stop occurred at night, so the officers could not see if David was the driver. The truck had a tonneau cover, preventing a view of the bed. Based on the totality of the circumstances, the officers had reasonable suspicion to believe that David, wanted for criminal activity, could be driving or hiding in the truck. The officers were justified in making the stop.

ii.

Levi asserts that the officers’ patdown was unreasonable. He believes that the officers did not have a reasonable suspicion that he was armed and dangerous based on articulable facts. See Minnesota v. Dickerson , 508 U.S. 366, 374, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ; Sokolow , 490 U.S. at 7, 109 S.Ct. 1581.

For reasonable suspicion, the officers point to these articulable facts: David had eight outstanding warrants: one for contempt, six for no-contact order violations, and one for failure to appear. Levi had a pending domestic abuse charge related to throwing Vlietstra to the ground. David had pictures of handguns and rifles on his Facebook page. David was known to have access to Levi’s vehicles and might be hiding in Levi’s truck. Levi might be helping David hide because: (1) according to Vlietstra, Levi had helped David by passing messages between her minor daughter and him about nudity and illegal drug use, even after Levi found out that David had a sexual relationship with the minor daughter and that there was a no-contact order against him, and (2) Levi previously told a prosecutor: "I’ll tell you where David is if you’ll give me a plea bargain on the domestic abuse charge."

It is undisputed that a search of David would have been lawful. The officers had warrants for David’s arrest, which gave them probable cause to arrest and search him. See, e.g. , Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 2174, 195 L.Ed.2d 560 (2016) ("officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee’s person"); United States v. Robinson , 414 U.S. 218, 224, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (finding "search may be made of the person of the arrestee by virtue of the lawful arrest"). Even without these warrants, the officers reasonably believed that David may be armed and dangerous because he had posted pictures of firearms on his Facebook page, which suggests that he had...