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UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
Scott Shepard,
Plaintiff-Appellee,
v.
Lance Ripperger, et al.,
Defendants-Appellants
No. 02-1939
57 Fed. Appx. 270
January 14, 2003,
Submitted
January 29, 2003, Filed
NOTICE: RULES OF THE EIGHTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PER CURIAM. [*271]
Scott
Shepard is suing Lance Ripperger and Chris Hardy of the Des Moines Police
Department for unreasonable arrest under 42 U.S.C. § 1983 (2000). Ripperger and
Hardy moved for summary judgment, claiming qualified immunity for arresting
Shepard in connection with their official police duties. The district court
denied qualified immunity, and Ripperger and Hardy (the officers) appeal.
The events
leading to Shepard's arrest began when Shepard's friend asked him for help
moving furniture to the friend's former residence. Shepard agreed to help and
arranged for a mutual friend, Brian Peck, to help as well. When Shepard and
Peck arrived with the furniture, a police squad car was at the residence. The
landlord opened the door to the residence, permitting Shepard and Peck to
unload the furnishings. After moving the furniture inside, Shepard went out to
the truck. The police called Peck over to the squad car, asked his name, and
informed him they were investigating the theft of furnishings from the
residence, some of which Peck appeared to have returned. Shepard waited a few
minutes then approached his friend (and the police), asking his friend if he
was ready to go. One officer told Shepard, "we'11 need your name," to
which Shepard responded, "I don't think so." The officers then
stepped out of their car and ordered Shepard to place his hands on the hood of
the car. Shepard did so, but immediately moved his hands a few inches above the
car, stating "the hood is hot." Police arrested Shepard for
interference with official acts. All criminal charges against Shepard were
dismissed.
To avoid summary
judgment based on qualified immunity, Shepard must "assert a violation of
a constitutional right, show the alleged right was clearly established at the
time of the alleged violation, and raise a genuine issue of material fact about
whether [the officers] would have known their alleged conduct would have
violated his clearly established right." Kukla v. Hulm, 310 F.3d 1046,
1048-49 (8th Cir. 2002). The officers can avoid this lawsuit "if they could
have reasonably believed their conduct was lawful in light of clearly
established law and the information they possessed." Id. Shepard asserts
his right to be free from an unreasonable seizure, here an arrest lacking
probable cause. The right to be free from unreasonable seizure is clearly
established, and not challenged by the officers. The main issue is whether the
officers reasonably believed they had probable cause to arrest Shepard, thus
reasonably believing their actions were lawful. Shepard was arrested for violating
Iowa Code section 719.1, interference with official acts. A person commits interference with official
acts when he "knowingly resists or obstructs anyone known by the person to
be a peace officer . . . in the performance of any act which is within the
scope of the lawful duty or authority of that officer." Iowa Code § 719.1
(2001). The parties disagree about whether the interaction was a consensual
encounter or a Terry stop, and whether Shepard's refusal to give his name or
place his hands directly on the hot car hood provided probable cause for arrest
for interference with official acts. Having reviewed the denial of summary judgment based on qualified
immunity de novo, viewing all facts and reasonable inferences in the light most
favorable to Shepard, we reverse.
The
officers claim the encounter with Shepard was a Terry stop and, as such, the officers were permitted to ask
questions of Shepard in the course of investigating the report of stolen
furniture. We agree. In our view, the facts described above warrant [*272] the
conclusion that the police had reasonable suspicion to justify their Terry based
encounter with Shepard. United States
v. Dawdy, 46 F.3d 1427, 1429-30 (8th Cir. 1995).
The
Supreme Court has declined to decide whether a person may be punished for
refusing to identify himself in the context of a lawful investigatory stop that
satisfies the Fourth Amendment. Brown v. Texas, 443 U.S. 47, 53 n.10, 61
L. Ed. 2d 357, 99 S. Ct.
2637 (1979). Because the legality of refusing to identify oneself to police is
an open question, it is not clearly established law for the purpose of denying
qualified immunity. Risbridger v. Connelly, 275 F.3d 565, 572 (6th Cir. 2002);
Gainor v. Rogers, 973 F.2d 1379, 1386 n.10 (8th Cir. 1992); Tom v. Voida, 963
F.2d 952, 959 & n.8 (7th Cir. 1992). The Tenth Circuit has adopted a
different view of the open question, concluding that because the law is not
clearly established that a citizen may refuse to answer questions during an investigative
stop, the officer could lawfully arrest the person for failure to comply. Oliver v. Woods, 209 F.3d 1179, 1189-90
(10th Cir. 2000). The Ninth Circuit has ruled that arresting a person for
refusing to provide his or her name violates the Fourth Amendment, but this
position has not been adopted by other federal Courts of Appeals or the Supreme
Court. See Carey v. Nevada Gaming
Control Bd., 279 F.3d 873, 881-82 (9th Cir. 2002) (holding arresting a person
for refusing to provide his or her name violates the Fourth Amendment); see
also Risbridger, 275 F.3d at 572
(comparing circuit holdings). Indeed, when reviewing a Ninth Circuit decision
that included this holding, the Supreme Court expressly declined to decide
whether arrest for refusing to give one's name to the police violates the
Fourth Amendment. Kolender v. Lawson, 461 U.S. 352, 361 n.10, 75 L. Ed. 2d 903,
103 S. Ct. 1855 (1983).
The
district court cites an Iowa Court of Appeals case that concludes refusing to
give one's name without some other ground for reasonable suspicion does not
provide probable cause for arrest. See
State v. Hauan, 361 N.W.2d 336, 340 (Iowa Ct. App. 1984). Because the
facts in Hauan are distinguishable from the facts in this case, we do not think
Hauan clearly establishes that these officers could not arrest Shepard for
failing to give his name. In Hauan, police arrested a bar patron for refusing
to give his name during an investigation of bar operations. The Iowa Court of
Appeals found that because the officers had no reason to suspect this man of
any crime, the mere fact that he was present during an investigation did not
permit the officers to compel him to reveal his name. Indeed, Hauan
distinguishes its facts from cases where refusal to identify oneself amounts to
obstructing justice because there was probable cause to believe the arrestee
was connected to some criminal activity.
Hauan, 361 N.W.2d at 340. An earlier panel of this Court reached similar
results where a person was arrested for walking in the street at 10:30 at
night. Fields v. City of Omaha, 810
F.2d 830, 835 (8th Cir. 1987). We found the person's presence in the street did
not give rise to reasonable suspicion to demand that the person answer
questions. Id. In contrast, here the officers were investigating a report of
stolen property when Shepard and Peck arrived with the property in question in
their truck. We think these circumstances are sufficiently different from the
"in the wrong place at the wrong time" circumstances in Hauan, thus
Hauan does not clearly establish that the officers could not arrest Shepard for
failing to give his name.
Because we conclude the law is
not clearly established about whether
refusing to identify oneself provides probable cause [*273] for arrest,
the officers are entitled to qualified immunity in connection with their
official acts. We reverse the district court's denial of summary judgment and
remand for proceedings consistent with this opinion.