Parker v. Chard

• Citation: 777 F.3d 977
• Decision Date: 29 January 2015
• Docket Number: No. 14–1593.,14–1593.
• Parties: Alexys Sherry PARKER, Plaintiff–Appellee v. Officer Adam CHARD; Officer Robert Illetschko, in their individual and official capacities, Defendants–Appellants City of Minneapolis, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

777 F.3d 977

Alexys Sherry PARKER, Plaintiff–Appellee
v.
Officer Adam CHARD; Officer Robert Illetschko, in their individual and official capacities, Defendants–Appellants
City of Minneapolis, Defendant.

No. 14–1593.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 13, 2014.
Filed: Jan. 29, 2015.
Rehearing and Rehearing En Banc Denied March 18, 2015.^*

777 F.3d 978

Brian Scott Carter, argued, Minneapolis, MN, (Susan Segal, Timothy S. Skarda, Minneapolis, MN, on the brief), for Defendants–Appellants.

Zorislav Romanovich Leyderman, argued, Minneapolis, MN, Plaintiff–Appellee.

Before MURPHY, MELLOY, and BENTON, Circuit Judges.

Opinion

BENTON, Circuit Judge.

Alexys Sherry Parker sued Officers Adam Chard and Robert Illetschko and the City of Minneapolis under 42 U.S.C. § 1983 and state law for alleged civil rights violations. The district court denied the officers qualified immunity on one § 1983 claim, finding that they violated the Fourth Amendment by seizing Parker without reasonable suspicion. The officers

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appeal. Having jurisdiction over orders denying qualified immunity and related grants of summary judgment, see Sherbrooke v. City of Pelican Rapids, 513 F.3d 809, 813 (8th Cir.2008), this court reverses and remands.

I.

On October 26, 2011, Chard and Illetschko were dispatched to investigate shoplifting allegations in Uptown Minneapolis. Before leaving the police station, they were informed that a “couple of black females” had reportedly stolen merchandise from Urban Outfitters, and that an employee from the nearby Heartbreaker store had called to report suspected shoplifters. Driving to Uptown, Illetschko called Heartbreaker. The manager said that a customer had approached another Heartbreaker employee and pointed out several African American females inside the store. The customer claimed to have seen them running out of Victoria's Secret. Illetschko called Victoria's Secret. An employee there confirmed that a “group of black females” had “very recently” run out of the store, but could not confirm whether any merchandise was stolen.

When the officers arrived at Heartbreaker, the manager pointed to Parker and her two friends as the African American females identified by the customer. The manager reported that the customer thought that the group's running from Victoria's Secret was suspicious and indicated shoplifting. The customer did not leave a name or contact (and apparently left Heartbreaker before the officers arrived). The manager did not suspect Parker or her friends of stealing from Heartbreaker. The officers observed Parker and her friends inside Heartbreaker and as they left the store. The officers noted no suspicious activity and did not believe they had stolen from Heartbreaker.

Illetschko followed Parker and her friends on foot while Chard got the squad car. Parker and her friends began to leave in Parker's car. Chard pulled his squad car in front of Parker's car and turned on the emergency lights at about 5:34 p.m. Chard, approaching the car, asked if they had been to Victoria's Secret. Parker and her friends said they had not. Chard told them that the officers had received a report from someone who believed they had shoplifted at Victoria's Secret. Illetschko also approached the car. Parker consented to a search of her shopping bags, which were visible in the car. Searching the bags, Chard believed everything was in order and nothing appeared stolen. He asked Parker for her driver's license and ran it inside his squad car at about 5:39 p.m. Returning Parker's license, Chard told her she was free to leave. Parker requested he speak to her father on her cell phone. Parker first relayed questions to Chard and ultimately handed him the phone. This conversation lasted about five to ten minutes. The officers then went to Victoria's Secret to review the security video and continue the shoplifting investigation.

II.

This court reviews de novo the denial of qualified immunity on summary judgment. Meehan v. Thompson, 763 F.3d 936, 940 (8th Cir.2014). Qualified immunity shields public officials performing discretionary functions from liability for conduct that “ ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Id., quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions” and “protects all but the plainly incompetent or those who

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knowingly violate the law.” Ashcroft v. al–Kidd, ––– U.S. ––––, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted). To overcome qualified immunity, a plaintiff must demonstrate that (1) there was a deprivation of a constitutional or statutory right, and (2) the right was clearly established at the time of the deprivation. Meehan, 763 F.3d at 940.

Parker asserts that the officers violated her rights by seizing her without reasonable suspicion, based only on an unreliable and uncorroborated anonymous tip. See U.S. Const. amend. IV (prohibiting unreasonable search and seizure by government officials); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding brief investigatory stop is permissible if supported by reasonable suspicion). The officers do not dispute they seized Parker, but argue she cannot overcome qualified immunity.

Even assuming that the officers violated Parker's Fourth Amendment rights by seizing her without reasonable suspicion, the issue remains whether those rights were clearly established at the time of the seizure. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (noting courts may address either qualified immunity prong first). “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’...