CHRIS KELLY JR v. TRAVIS NEELD NILES MERCER DOES 10 THE CITY OF IOWA CITY (2024)

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiff Chris Kelly filed this lawsuit against Travis Neeld, Niles Mercer, Does 1-10, the City of Iowa City, Johnson County, and Jude Pannell, alleging multiple violations of his constitutional rights when he was stopped and arrested. Defendants Travis Neeld, Niles Mercer, and City of Iowa City (“Defendants”) move for summary judgment on all claims. For the reasons discussed herein, Defendants' Motion for Summary Judgment is GRANTED.

I. BACKGROUND

A. Factual Background 1

Johnson County Attorney Jude Pannell had just finished shopping at the Waterfront Hy-Vee in Iowa City. He was leaving in his car when he noticed a black man, Kelly, with dreadlocks, a stocking cap, and a camouflage jacket crossing the street. [ECF No. 50-2 ¶¶ 4–8]. Pannell claimed that he recognized Kelly from his work as a criminal prosecutor, but could not recall his name. Id. ¶ 9. He later determined that he had prosecuted Kelly in the past. Id. ¶ 10. Pannell asserts that he saw Kelly's right front pocket of his jacket was so heavy that it weighed down his jacket and caused it to swing as he walked. Id. ¶ 12. It was later determined that Kelly was carrying a firearm that weighed almost two pounds. Id. ¶ 13. Pannell called Officer Travis Neeld to share his observations about Kelly. Id. ¶ 16.

Officer Neeld was nearby the Waterfront Hy-Vee for an unrelated K9 sniff of a vehicle when he received the call from Pannell describing his observations of Kelly. Pannell also told him that Kelly had allegedly stared down the officers working nearby at the Hy-Vee. Id. ¶¶ 17–19. Officer Neeld and other officers who were involved in the K9 sniff then began searching for Kelly. Id. ¶ 20. Officer Neeld claims that after he located Kelly, he observed him leave the sidewalk, cross the street without a crosswalk, and impede traffic. If true, these actions may constitute jaywalking under Iowa law. The parties dispute whether Officer Neeld and the other officers saw this. [ECF No. 59-1 ¶¶ 24–25]. Officer Neeld then stopped Kelly on the sidewalk and asked him for identification. [ECF No. 50-2 ¶ 26]. Officer Neeld and Kelly spoke about where Kelly was going, his identification, and his purported jaywalking. During this conversation, Kelly appears to turn away from Officer Neeld several times. Id. ¶¶ 26–29; [ECF No. 59-1 ¶ 27]. Officer Neeld claims that he also noticed a heavy bulge in Kelly's right jacket pocket. [ECF No. 50-2 ¶ 30].

At one point during their interaction, Kelly told Officer Neeld that he did not have any identification on him, but later produced a card with the name “Chris Kelly.” Id. ¶¶ 31–35. Officer Neeld claims that he was notified of a potential warrant for “Christopher Kelly” when he radioed dispatch. Kelly disputes this claim. [ECF No. 59-1 ¶ 39]. It was at this point that Officer Neeld ordered Kelly to not leave and began issuing commands. [ECF No. 50-2 ¶ 39]. The rest of the interaction between Kelly and the officers is hotly disputed by the parties. Defendants claim that Kelly was resisting arrest and attempting to flee; Kelly denies that he did so. [ECF No. 59-1 ¶¶ 40–46]. Eventually, Kelly was forced to the ground and tased three times during the arrest. Id. [ECF No. 50-2 ¶ 47].

B. Procedural Background

Kelly filed a twelve-count Complaint, alleging a variety of civil rights violations arising from the stop and arrest. [ECF No. 1]. He named Pannell, Officer Neeld, Detective Mercer, the City of Iowa City, Johnson County, and ten John Does as Defendants. Defendants moved to dismiss Counts III–XII. [ECF Nos. 12, 13]. The Court dismissed Counts III, V, VII, X, and XI in their entirety. [ECF No. 25]. Defendants Officer Neeld, Detective Mercer, and the City of Iowa City then filed a Motion for Summary Judgment on all of Kelly's remaining claims asserting they fail as a matter of law.² [ECF No. 50]. Kelly resists Defendants' Motion. [ECF No. 59].

II. ANALYSIS

A. Summary Judgment Standard

Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Paulino v. Chartis Claims, Inc., 774 F.3d 1161, 1163 (8th Cir. 2014). “A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)).

To preclude the entry of summary judgment, a plaintiff must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The evidence is viewed “in the light most favorable to the nonmoving party,” which includes drawing all reasonable inferences in that party's favor. Pedersen v. Bio-Medical Applications of Minn., 775 F.3d 1049, 1053 (quoting Johnson v. Wells Fargo Bank, N.A., 744 F.3d 539, 541 (8th Cir. 2014)). But “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge.” Anderson, 477 U.S. at 255.

B. Kelly's Claims

1. Unreasonable Search and Seizure (Count I)

Kelly claims that he was unconstitutionally stopped and seized by Officer Neeld and the other officers. The law is well-established that if officers do not have a warrant, they need a “reasonable articulable suspicion that criminal activity is afoot” to effectuate a stop. United States v. Cotter, 701 F.3d 544, 547 (8th Cir. 2012) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). This standard is known as reasonable suspicion, which is a lower standard than probable cause, requiring only that “an officer is aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.” Schoettle v. Jefferson Cnty., 788 F.3d 855, 859 (8th Cir. 2015) (cleaned up). Reasonable suspicion must be more than an “inchoate hunch” but “the Fourth Amendment only requires that police articulate some minimal, objective justification for an investigatory stop.” United States v. Riley, 684 F.3d 758, 763 (8th Cir. 2012) (citation omitted).

Kelly brings his constitutional claims under 42 U.S.C. § 1983. Section 1983 creates a federal cause of action against anyone who, under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. It has been described as a “species of tort liability” for deprivation of rights, privileges, or immunities protected by the United States Constitution. Imbler v. Pachtman, 424 U.S. 409, 417 (1976).

Defendants will be shielded by qualified immunity for constitutional claims brought under Section 1983 unless their conduct violated “a clearly established constitutional or statutory right of which a reasonable person would have known.” Wright v. United States, 813 F.3d 689, 695 (8th Cir. 2015). Kelly bears the burden of proving that there was a violation of a constitutional right and that right was clearly established at the time of the misconduct. Id.; see also Wilson v. Lamp, 901 F.3d 981, 986 (8th Cir. 2018) (holding that plaintiff bears the burden of proof to overcome qualified immunity). As Kelly points out several times in his response to Defendants' Motion for Summary Judgment, the Court previously ruled in his criminal case that Officer Neeld's actions in stopping him were a violation of his constitutional right to be free from unreasonable searches and seizures. [ECF No. 59 at 2]. While this is true, the qualified immunity analysis prompts a question the Court did not answer in earlier litigation, that is, whether the law was so established that a reasonable officer in Officer Neeld's position would have known they were violating Kelly's constitutional rights. See Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir. 2004). The Supreme Court has emphasized the importance of the qualified immunity analysis because the immunity “is effectively lost if a case is erroneously permitted to go to trial.” White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Perry v. Adams, 993 F.3d 584, 587 (8th Cir. 2021) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). For a right to be clearly established, there must be circuit precedent with sufficiently similar facts squarely on point or a “a robust consensus of cases of persuasive authority.” Id.; see also De La Rosa v. White, 852 F.3d 740, 745 (8th Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Kelly asserts that “to be free from an unconstitutional stop is clearly established ․ as any reasonable officer would have known.” [ECF No. 59 at 6]. However, this general statement of what Kelly asserts is clearly established law is not enough. The Supreme Court has made it clear that “clearly established law” needs to be described with specificity. al-Kidd, 563 U.S. at 742. Clearly established law should not be defined “at a high level of generality ․ [it] must be ‘particularized’ to the facts of the case.” Pauly, 580 U.S. at 79. Describing an illegal stop as a violation of the Fourth Amendment does little to establish whether the unconstitutionality of the official's conduct was clearly established at the time of the alleged violation. Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam) (holding that the inquiry into whether a right is clearly established, “must be undertaken in light of the specific context of the case, not as a broad general proposition.”). Kelly relies on two cases decided by the United States Court of Appeals for the Eighth Circuit to prove that Officer Neeld's actions violated clearly established law at the time. United States v. Lowry, 935 F.3d 638, 642 (8th Cir. 2019); United States v. Jones, 606 F.3d 964, 968 (8th Cir. 2010). While these cases support the Court's ultimate determination regarding constitutionality, they do not demonstrate that Officer Neeld did not have arguable reasonable suspicion, which is the qualified immunity standard on a claim for an unconstitutional investigatory stop. See Waters v. Madson, 921 F.3d 725, 736 (8th Cir. 2019) (holding that qualified immunity is appropriate when an officer believes they have “arguable reasonable suspicion ․ if a reasonable officer in the same position could have believed they had reasonable suspicion.”).

In Lowry, the Eighth Circuit faulted officers because they “could only offer a vague justification” that the defendant was engaged in some undefined criminal activity or might “have been hiding weapons, drugs, or alcohol.” 935 F.3d at 641–42. This “equivocal explanation for the stop” suggested to the panel that it “was in fact based on a hunch.” Id. at 642. The officer in Jones did not identify any purported legal violation, instead focusing on the concealed object in the defendant's pocket. 606 F.3d at 967. The other factors which the government cited in support of reasonable suspicion were similarly unpersuasive to the panel. Id. (rejecting “other suspicious circumstances” which were “shared by countless, wholly innocent persons” including walking in a high-crime area, wearing a sweatshirt on a 68-degree day, and intently watching a police vehicle).

In this case, Officer Neeld received a call from Pannell, who he considered to be reliable due to his position as a criminal prosecutor with whom he had a working relationship, describing Kelly and specifically his observations leading him to believe Kelly had a gun. Officer Neeld was then able to locate Kelly and corroborated Pannell's observations. Prior to the stop, the officers onsite were discussing whether they could establish reasonable suspicion, which further supports the contention that a reasonable officer in Officer Neeld's position could have believed he had reasonable suspicion. [ECF No. 50-3 at 30]. Furthermore, Officer Neeld has identified jaywalking as a reason for the stop. As the Court previously held, this was incorrect as a matter of law and did not provide probable cause. United States v. Kelly, 481 F. Supp. 3d 862, 871 (S.D. Iowa 2020). However, the inquiry on qualified immunity is whether Officer Neeld had arguable reasonable suspicion. The arguable reasonable suspicion standard implies that there is a delta between reasonable suspicion in fact, and arguable reasonable suspicion.

Although the Eighth Circuit found there was no reasonable suspicion in Lowry and Jones, they have held differently on very similar facts. See United States v. Stokes, 62 F.4th 1104, 1108 (8th Cir. 2023) (finding there was reasonable suspicion for a stop and frisk when officers received a call from a property owner late at night about a suspicious person on his salvage lot and only the defendant was present with his pockets full of things and a strange explanation for his presence); United States v. Dortch, 868 F.3d 674, 678 (8th Cir. 2017) (holding that when the defendant was interacting with illegally parked cars, the officers had reasonable suspicion to briefly stop him and investigate his involvement); United States v. Quinn, 812 F.3d 694, 698 (8th Cir. 2016); United States v. Roelandt, 827 F.3d 746, 748 (8th Cir. 2016); United States v. Dillard, 825 F.3d 472, 475 (8th Cir. 2016); United States v. Trogdon, 789 F.3d 907, 913 (8th Cir. 2015).

The existence of these cases indicates that even minor factual differences can lead to entirely different dispositions on reasonable suspicion and recognizes that policing is not one-dimensional and simple—it is an occupation that requires rapid-fire consideration of multiple nuanced factors, any one of which can tip a decision in or away from constitutionality. The Supreme Court has repeatedly held that a clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (emphasis added). If existing precedent is not “clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply” then “the rule is not one that ‘every reasonable official' would know.’ ” Dist. Of Columbia v. Wesby, 583 U.S. 48, 63 (2018). Case law must have “placed the statutory or constitutional question beyond debate.” Mullenix, 577 U.S. at 12 (quoting al-Kidd, 563 U.S. at 741). The Supreme Court has admonished lower courts “repeatedly ․ not to define clearly established law at a high level of generality.” Id. This is because the Court has “recognized that ‘it is sometimes difficult for an officer to determine how the relevant legal doctrine ․ will apply to the factual situation the officer confronts.’ ” Id. (quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)). If qualified immunity is “properly applied” it will protect “all but the plainly incompetent or those who knowingly violate the law.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (cleaned up) (citation omitted). Under the totality of the circumstances, the Court cannot say that Officer Neeld is not entitled to qualified immunity.

2. Excessive Force (Count II)

Kelly also asserts that Defendants used excessive force on him during his arrest. Excessive force is prohibited by the Fourth Amendment's unreasonable seizure protections. Whether an officer used excessive force is assessed by an objectively reasonable standard, “judged from the perspective of a reasonable officer on the scene.” Parrish v. Dingman, 912 F.3d 464, 467 (8th Cir. 2019) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). To make this determination, courts may consider:

[T]he relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.

MacKintrush v. Pulaski Cnty. Sheriff's Dep't, 987 F.3d 767, 770 (8th Cir. 2021) (citing Zubrod v. Hoch, 907 F.3d 568, 577 (8th Cir. 2018)). While the Court is required to view the facts in the light most favorable to Kelly, there must be some genuine dispute of material fact for the jury. Fed. R. Civ. P. 56(a) (emphasis added). Therefore, the Court is not required to accept his factual allegations where the video “blatantly contradict[s]” his account of what happened. Boude v. City of Raymore, Mo., 855 F.3d 930, 933 (8th Cir. 2017) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

Kelly disputes that he ran from officers and resisted while they attempted to detain him. The video evidence in the record contradicts this assertion. [ECF No. 50-3 at 30]. The video shows that Kelly tried to run, was grabbed and tackled by multiple officers, and continued to resist such that three officers could not get him handcuffed. Id. It further depicts that once his hands were eventually secured behind his back, Officer Neeld told him “three cops and you're fighting us” to which Kelly responded, “I'm not trying to go to fucking jail.” Id. A statement which further contradicts Kelly's contention that he did not run and did not resist. At the very least, a reasonable officer in Officer Neeld's position would have perceived Kelly's behavior as resisting. Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir. 2017).

The video goes on to show officers trying to physically overpower Kelly as Officer Neeld gave verbal instructions and warned that he was going to deploy the taser. [ECF No. 50-3 at 30]. Kelly disputes that he was resisting during this altercation with officers on the ground, but the video illustrates that officers were still unable to handcuff Kelly, at which point Officer Neeld resorted to tasing him. Id. Officer Neeld tased Kelly three separate times. [ECF No. 50-2 ¶ 47]. Once Kelly was handcuffed, Officer Neeld did not tase him again. Id. Courts have determined that it not per se unreasonable for officers to tase unrestrained suspects who appear to be resisting arrest. McManemy v. Tierney, 970 F.3d 1034, 1038 (8th Cir. 2020). The officers' actions were objectively reasonable given the situation such that there is no genuine issue of material fact regarding Kelly's excessive force claim.³

However, at the very least, officers would be entitled to qualified immunity regarding this claim. Again, they are entitled to qualified immunity unless their conduct violated a clearly established right. See Wright v. United States, 813 F.3d 689, 695 (8th Cir. 2015). Because Kelly could have reasonably been perceived as fleeing and resisting, the precedent at the time would not have shown Defendants' actions to be a violation of clearly established law. See Carpenter v. Gage, 686 F.3d 644, 649 (8th Cir. 2012); Ehlers v. City of Rapid City, 846 F.3d 1002, 1011 (8th Cir. 2017) (holding that a forcible takedown and the use of a taser is not excessive when the suspect's behavior is interpreted as resisting).

3. Civil Conspiracy (Count VI)

For Kelly's Section 1983 conspiracy claim, he must show: “that the defendant conspired with others to deprive him ․ of a constitutional right; that at least one of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy; and that the overt act injured [him].” Askew v. Millerd, 191 F.3d 953, 957 (8th Cir. 1999). Courts have held that the defendants must have acted “in concert with specific intent to violate [the plaintiff's] right.” See Mark v. Spears, No. 22-40104, 2023 WL 5316554, at *7 (5th Cir. Aug. 17, 2023) (quoting McKinney v. McDuffie, 789 Fed. App'x 413, 416 (5th Cir. 2019)); Clinton v. Garrett, 551 F. Supp. 3d 929, 954 (S.D. Iowa 2021). Kelly must also show that he was actually deprived of a constitutional right. Askew, 191 F.3d at 957.

To the extent the Court previously held there was a constitutional violation, it did not determine that the violation was intentional.⁴ Kelly has provided no evidence that Officer Neeld “conspired with others” to deprive him of his constitutional rights. The Court is required to take the facts in the light most favorable to Kelly, not his speculations or conjecture. See Reed v. City of St. Charles, Mo., 561 F.3d 788, 791 (8th Cir. 2009). The record supports that while on the phone with Pannell, Officer Neeld was still trying to locate Kelly. [ECF No. 50-3 at 30]. There was no conversation amongst the two regarding how Officer Neeld could effectuate an unconstitutional stop. Id. Officer Neeld disconnected with Pannell as soon as he located Kelly so he could continue with his investigation. Id. The record further shows the officers were discussing the situation as it was unfolding and debating whether there was reasonable suspicion to justify a stop. This does not establish a conspiracy to violate a right, rather it demonstrates the officers engaged in an investigation. Id. The evidence shows that there was no conspiracy to violate Kelly's constitutional rights. Importantly, Officer Neeld is the one who initiated the stop. Id. Other officers did not assist him and intervene until after the stop was completed. Therefore, none of the alleged co-conspirators took any action in furtherance of the purported conspiracy. Kelly cannot establish a conspiracy claim.

4. State Law Claims (Counts VIII and IX)

Regardless of when Officer Neeld could first establish reasonable suspicion during his interaction with Kelly, Kelly was not entitled to run from officers once they told him to put his hands on his head and informed him about a potential warrant. See McElree v. City of Cedar Rapids, Iowa, 372 F. Supp. 3d 770, 791 (N.D. Iowa 2019). When he ran, he provided them with probable cause for his arrest, at a minimum for interference with official acts. Iowa Code § 719.1; United States v. Blackmon, 662 F.3d 981, 986 (8th Cir. 2011). Accordingly, Kelly's arrest was lawful and did not constitute false arrest or false imprisonment.

The elements of false arrest and false imprisonment are “(1) detention or restraint against one's will and (2) unlawfulness of the detention or restraint.” Children v. Burton, 331 N.W.2d 673, 678–79 (Iowa 1983); Nelson v. Winnebago Indus., Inc., 619 N.W.2d 385, 388 (Iowa 2000). Kelly's claim for false arrest and false imprisonment fails because his arrest was lawful and supported by probable cause. Addressing Kelly's claims for assault and battery, pursuant to Iowa Code section 804.8, the officers were entitled to use as much force as they reasonably believed was necessary to safely arrest him. Richards v. City of W. Des Moines, 996 N.W.2d 563 (Iowa Ct. App. 2023) (citing Iowa Code § 804.8). Given the situation and safety concerns regarding a potential firearm, the force used by the officers was objectively reasonable. Parrish v. Dingman, 912 F.3d 464, 469 (8th Cir. 2019). Kelly cannot support his state law claims for assault, battery, or false arrest and false imprisonment.⁵ With the resolution of this case, any remaining request by Kelly for injunctive relief is moot.

III. CONCLUSION

For the reasons discussed above, the Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

Dated this 10th day of June, 2024

FOOTNOTES

2.   Defendants Pannell and Johnson County also filed a motion for summary judgment but were voluntarily dismissed from the suit by Kelly prior to any ruling on that motion. [ECF Nos. 51, 58].

3.   Any remaining claims for failure to intervene fail as a matter of law. There was no use of excessive force and therefore, none of the Defendants observed or had reason to know that excessive force was being used. See Robinson v. Payton, 791 F.3d 824, 829 (8th Cir. 2015).

4.   The Court's ruling that the officers are entitled to qualified immunity regarding their conduct necessarily precludes Kelly's civil conspiracy claim because there was no willful or intentional violation of any of his rights or any statutes.

5.   Summary judgment is also appropriate on Kelly's respondeat superior claims because “the employer has no liability unless the employee is liable.” Parrish, 912 F.3d at 469 (quoting Dickens v. Associated Anesthesiologists, P.C., 709 N.W.2d 122, 125 (Iowa 2006)).

STEPHANIE M. ROSE, CHIEF JUDGE UNITED STATES DISTRICT COURT