Lawyer v. City of Council Bluffs, Iowa, CIV.1:01-CV-30013.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
Writing for the CourtWalters
Citation240 F.Supp.2d 941
PartiesTimothy LAWYER and Michael Lawyer, Plaintiffs, v. CITY OF COUNCIL BLUFFS, IOWA, John Clark, and Dan Newby, Defendants.
Docket NumberNo. CIV.1:01-CV-30013.,CIV.1:01-CV-30013.
Decision Date20 November 2002
240 F.Supp.2d 941
Timothy LAWYER and Michael Lawyer, Plaintiffs,
CITY OF COUNCIL BLUFFS, IOWA, John Clark, and Dan Newby, Defendants.
No. CIV.1:01-CV-30013.
United States District Court, S.D. Iowa, Western Division.
November 20, 2002.

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Alfredo G. Parrish, Matt Oetker, Parrish Kruidenier Moss Dunn Boles Gribble & Cook LLP, Des Moines, IA, for Plaintiffs.

Michael A. Sciortino, Council Bluffs, IA, for Defendants.


WALTERS, Chief United States Magistrate Judge.

This matter is before the Court on defendants' Amended Motion for Judgment on the Pleadings/Summary Judgment (# 22), following hearing. The motion is properly considered solely as one for summary judgment. Plaintiffs Timothy Lawyer and Michael Lawyer filed their Complaint on March 22, 2001. They bring seven causes of action: federal civil rights claims under 42 U.S.C. § 1983 for excessive force in making an arrest (Count I) and for unreasonable search (Count II) in violation of their rights under the Fourth Amendment to the U.S. Constitution, and state law claims for negligence per se (Count III), negligence (Count IV), assault and battery (Count V), intentional infliction of emotional distress (Count VI), and false arrest (Count VII). Though the Complaint does not expressly allege a Fourth Amendment violation based on arrest without probable cause, the parties have briefed the issue. The Court considers the issue presented by implied consent and treats it as if raised in the Complaint. Fed.R.Civ.P. 15(b).

Federal question jurisdiction is asserted. 28 U.S.C. §§ 1331 and 1343(a)(3). The Court has supplemental jurisdiction of the state law claims. 28 U.S.C. § 1367. The

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case was referred to the undersigned for all further proceedings on August 9, 2001 pursuant to 28 U.S.C. § 636(c).


Defendants' motion for summary judgment is subject to the following wellestablished standards. A party is entitled to summary judgment only when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mohr v. Dustrol, 306 F.3d 636, 639 (8th Cir.2002); Knudsen v. United States, 254 F.3d 747, 750 (8th Cir.2001)(citing Fed.R.Civ.P. 56(c)); accord Bailey v. USPS, 208 F.3d 652, 654 (8th Cir.2000). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992)(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A genuine issue of fact is material if it "might affect the outcome of the suit under governing law." Hartnagel, 953 F.2d at 395 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); see Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.1999).

In assessing a motion for summary judgment a court must determine whether a fair-minded trier of fact could reasonably find for the nonmoving party based on the evidence presented. Anderson, All U.S. at 248, 106 S.Ct. 2505; Herring v. Canada Life Assurance Co., 207 F.3d 1026, 1030 (8th Cir.2000). The court must view the facts in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences which can be drawn from them. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348; accord Dixon v. Lowery, 302 F.3d 857, 865 (8th Cir. 2002); Lambert v. City of Dumas, 187 F.3d 931, 934 (8th Cir.1999); Kopp v. Samaritan Health System, Inc., 13 F.3d 264, 269 (8th Cir.1993).


There is not much dispute about what occurred. This is so for two reasons. First, the traffic stop in question was video taped, with audio, by video cameras in the police vehicles. Second, defendant Clark's police report of the incident, which by affidavit he swears is true and correct, is not controverted by affidavit or otherwise. (Def.App. at 7-10).

This case involves a stop for a traffic violation in the City of Council Bluffs, Iowa, involving two Council Bluffs' police officers, defendants John Clark and Dan Newby, and plaintiffs Michael Lawyer, then age 17, and his 21-year-old brother Timothy Lawyer.1 At the time in question, the Lawyers, residents of Wisconsin, were returning from a ski trip in Colorado.

On March 26, 1999, at approximately 2:15 a.m. defendant Clark was parked in the center median of Interstate 80, which runs through the City of Council Bluffs, Iowa, checking traffic speeds with a laser unit. (Def.App. at 8). The posted speed limit is 55 miles per hour. At approximately 2:24 a.m. Clark obtained a speed reading of 85 mph on an eastbouhd vehicle driven by Michael Lawyer and owned by the Lawyers' father. Timothy Lawyer was in the passenger seat. Clark stopped the vehicle, which pulled to the right shoulder off the road. (Id.) The events of the stop were captured on the video unit in Clark's patrol car. The audio component

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of the tape is not completely discernible nor are all actions on film completely clear due to the distance between the vehicles. (Ex. A).

Clark approached the passenger side of the vehicle (away from traffic), and asked to see Michael's license, registration and proof of insurance. Clark explained he had stopped the plaintiffs for speeding. As Timothy opened the glove box to find the requested information, he withdrew and unzipped a red pouch to look inside. With his flashlight Clark saw "a small multi-colored object that I identified as a marijuana pipe." (Def.App. at 8). Clark asked what was in the bag he had seen, commenting that it looked like drug paraphernalia, and asked to take a look at it. Timothy responded by "quickly" zipping up the bag, and putting it back in the glove box. He refused Clark's request to look inside the bag. Clark renewed his request to see inside the bag several times. Timothy would not allow Clark to see the bag. Clark asked Timothy to step out of the vehicle several times. Timothy refused to comply with this request also. Clark told Timothy he would use pepper spray if Timothy did not exit the car. Timothy then opened the car door. He reached into the glove box, took out the bag, unzipped it and dumped what turned out to be an "Altoids" container and candy into his lap. After briefly discussing the red pouch issue and the purpose of the Lawyers' trip, Clark repeated his request to see proof of insurance and registration. The Lawyers did not have proof of insurance with them. Clark accepted the Lawyers' explanation that the car belonged to their father. Clark returned to his patrol car to write a speeding ticket for Michael.

Officer Newby arrived on the scene (Clark had radioed for backup while he was engaged with Timothy's refusal to allow inspection of the red pouch) and the officers conferred about the circumstances. Newby stayed at the scene. Clark wrote the speeding citation and placed his citation book on the hood of his car behind plaintiffs' vehicle. He then approached the driver's side of plaintiffs' vehicle and said to Michael: "Mike, why don't you come back and sign this and we'll get you out of here." (Def. Stmt, of Facts 112; Pltf. Response 1125). Michael refused to go to Clark's patrol car and asked Clark to bring the citation to him. The videotape indicates some discussion within plaintiffs' vehicle concerning Clark's request that Michael come back to the patrol car. Clark told plaintiffs it was his normal practice to have everyone come back to the sign the citation on the front of his patrol car so that he could videotape the person for identification. (See also Def.App. at 9). Clark repeatedly instructed Michael to come back to Clark's vehicle to sign the ticket to no avail. Michael complained, variously, that it was cold out (Clark told him to put a coat on), about the traffic (it was by then about 2:45 a.m. and the patrol car's flashing lights were operating), and he was afraid because Clark had threatened to pepper spray Timothy (Clark's demeanor at this point was neither hostile nor threatening).

Clark explained, or attempted to explain several times to plaintiffs that Michael's continued refusal to come back and sign the ticket would result in Michael's arrest. Clark repeatedly asked Michael and Timothy to "listen to me" but was interrupted by both. Clark wrote in his report:

I then tried to explain again about Mike getting arrested. All I could ever get out was, "Understand" before being interrupted. I said, "Understand" seven times before I gave up. This was because Tim was now interrupting me, telling Mike not to sign the ticket. I told Tim to stay out of it because he was now interfering with a police officer. Mike then told me that he didn't want to

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sign the ticket and that he didn't want to get out of the car.

(Def.App. at 9). Clark requested and received authority to make a juvenile's arrest for refusal to sign the citation.

Clark informed Michael he was under arrest and told him to step out of the car. Clark tried the door handle and it was locked. He told plaintiffs to unlock the doors no less than nine times. (Def. Stmt, of Facts 1135; Pltf. Response 1135). The driver side window was open. Clark reached inside to release the door lock. The driver's window started to go up. Newby grabbed the window to prevent it from closing the last few inches and yelled to Michael he would break it. Clark grabbed his pepper spray, and as Newby held the window, sprayed pepper spray inside the vehicle at Michael. (Def.App. at 9-10). Michael turned and a burst of spray hit Timothy in the face. (Id. at 10).

When he was sprayed with the pepper spray, Michael revved the engine. The car was not in gear. After further commands to get out of the car, Michael opened the door and Timothy got out the passenger side....

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