On July 25, 2024, the Eighth Circuit Court of Appeals decided Storrs v. Rozeboom[i], in which the court examined whether officers were entitled to qualified immunity in a suit that involved allegations of unlawful detention, false arrest, retaliation under the First Amendment, excessive force and an illegal search. The relevant facts of Storrs are as follows:
On December 26, 2019, Officers Rozeboom and Malone responded to a shoplifting in progress at Dick’s Sporting Goods in Papillion, Nebraska. A police dispatcher informed the officers that the suspects—a black male and black female—drove away to the east in a silver four-door sedan.
When Malone received this information, he was near the store and saw what he thought was a silver four-door sedan traveling east. The driver was a black male, and a passenger was in the front seat. Malone notified others by radio that he had located a vehicle matching the dispatcher’s description. He followed the car onto a highway and conducted a traffic stop. Rozeboom joined him.
Storrs was the driver of the vehicle. The officers approached, spoke with Storrs, and saw that his passenger, Smith, was a white female. Malone told Storrs about the shoplifting report. Storrs grew angry and asked what accusation Malone was making. Malone replied that “this goes really easy, either . . . you can all go in handcuffs right now or you can answer.” Storrs yelled back, “What’d I do?” Malone instructed Storrs to turn off his car, and Storrs refused.
Malone asked Storrs if he “did” the shoplifting. Storrs yelled, “No, I did not, sir. I was picking my girlfriend up from work.” Smith, the female passenger, called Malone a “racist piece of crap” and accused him of harassment. Storrs continued to repeat that “this is bullshit.” As Storrs and Smith continued to yell, Rozeboom radioed that they had pulled over a black male in a silver car, but that he was refusing to get out of the car. Malone again asked Storrs to turn off his car and then asked him to “have a conversation out here.” Storrs refused.
Around this time, Officer Maas arrived on the scene to assist. Malone again asked Storrs to leave the vehicle and talk to him. Storrs accused the officers of racism, but nonetheless exited the car. Smith also got out and began recording the events on her phone. Malone asked Storrs to put his hands behind his back, and Maas instructed Storrs to turn around. Storrs did not comply. Maas asked him again to turn around. Storrs complied, and Maas twice told him to “wait right there.” Storrs turned back around to face the officers, crossed his arms, and said, “No, I’m not under arrest.” Maas asked him a third time to turn around because he was “being detained.” Storrs insisted that he was not.
On hearing that Storrs was being detained, Smith stood directly in front of him, between Storrs and the officers. She demanded to know why he was being detained and asserted that the officers could not detain him. As she yelled, Maas twice asked her to “come this way,” away from Storrs. When he asked a third time, he grabbed her arm to move her. Smith screamed and struggled. Storrs lunged toward Smith. Rozeboom tased Storrs. Storrs fell to the ground. Maas and Rozeboom restrained and handcuffed Storrs. As Smith continued recording, Malone grabbed her and pushed her against the car. Malone then brought Smith to the ground, restrained her, and handcuffed her.
The officers placed Storrs and Smith in separate squad cars. Maas spoke with Storrs, while Malone and Rozeboom tried to interview Smith. Smith declined to speak with them. Malone then noted for the first time that there was “a heavy odor of marijuana.” Rozeboom replied, “Yeah, I keep getting that.”
Malone and Rozeboom approached Maas and Storrs. Maas asked Storrs if there was anything in the car that did not belong to him. Storrs said that they could not go in his car. Maas explained that he “smell[ed] marijuana coming from you and the car,” and asked if there was marijuana or anything that “shouldn’t be” in the car. Storrs said, “No.”
Rozeboom, Malone, and Maas then discussed how to proceed. Rozeboom acknowledged that Smith did not match the dispatcher’s description, but said that an officer was heading to Dick’s Sporting Goods to get an image of the shoplifters. Maas stated that there was probable cause to search the car in the meantime, and Malone interjected, “Yeah, there’s an odor of marijuana.” Maas agreed. Malone searched the car and a purse that he found inside the car. He told the other officers that he found nothing, “not even paraphernalia or drugs,” although his written report later stated that he found “small pieces of marijuana” in the car.
Rozeboom then received a telephone call and learned that the shoplifting suspects were actually four black females. After running a records check on Storrs and Smith, the officers released them.[ii]
Officers Malone, Maas and Rozeboom were sued in federal court for violating Storrs’ and Smith’s rights under the First, Fourth and Fourteenth Amendments. Specifically, the plaintiffs alleged the officers violated their constitutional rights by stopping and continuing to detain them, arresting them without probable cause, using excessive force, retaliation for exercise of their First Amendment rights, and illegally searching the car and Smith’s purse. The officers filed motions for qualified immunity which the district court granted. Storrs and Smith appealed the dismissal of their case to the Eighth Circuit Court of Appeals.
On appeal, the Eighth Circuit first discussed qualified immunity and stated
To determine whether a police officer is entitled to qualified immunity, we ask (1) whether the facts alleged establish a violation of a constitutional or statutory right and (2) whether that right was clearly established at the time of the alleged violation, such that a reasonable official would have known that his actions were unlawful. Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).[iii]
Thus, for the plaintiffs to defeat the officers’ motions for qualified immunity, they must satisfy a two-part test. First, they must show that the defendants violated their constitutional rights. Second, they must show that the law was clearly established at the time of the incident, such that every reasonable officer would have known that their actions violated the Constitution.
The court of appeals then examined each of the plaintiff’s claims.
Claim One: The Continued Detention
Officer Malone stopped Storrs’s vehicle after seeing it matched the description of a silver, four-door sedan leaving the area of the shoplifting. The officer saw that that the vehicle was driven by a black male, but he could not see the passenger. The description originally provided was a black male and a black female leaving the area in a silver four-door sedan. However, the passenger, Smith, was determined to be a white female after the officer stopped the vehicle. The plaintiffs argued that the officers’ reasonable suspicion to continue to detain them dissipated after seeing that they did not meet the description of the shoplifters.
The court of appeals stated
The Fourth Amendment requires that a search not continue longer than necessary to effectuate the purposes of an investigative stop.” United States v. Watts, 7 F.3d 122, 126 (8th Cir. 1993). A seizure that is supported by reasonable suspicion must conclude if that reasonable suspicion dissipates. Id.[iv]
The court of appeals then noted that the officers had sufficient reasonable suspicion to initially stop Storrs’s vehicle, as it matched the description of the vehicle the shoplifters occupied, Storrs was a black male, and the passenger was not identified. However, the argument on appeal was that, after observing that the passenger did not match the description of the shoplifters, the officers’ reasonable suspicion dissipated, and the officers could no longer detain Storrs and Smith. The court stated
But after the officers stopped the vehicle and approached on foot, they could see that the passenger was a white female. It was then readily apparent that the passengers of the seized vehicle (one black person and one white person) did not match the description of the shoplifting suspects (two black persons). At that point, it was no longer reasonable for the officers to suspect that Storrs and Smith were the perpetrators in the shoplifting incident. The law clearly established that detention must be supported by reasonable suspicion, see Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), and a reasonable officer would have known that no reasonable suspicion existed to continue detaining the pair for shoplifting after observing that Smith was white.[v]
However, the court said that the analysis does not end based on the discrepancy in the physical description because, if the officers developed reasonable suspicion or probable cause to believe the plaintiffs were committing some other offense, the officers could continue to detain them.
Here, once the officers had probable cause to believe Storrs and Smith were committing a violation of Nebraska’s statute that prohibits obstructing a peace officer, they could be detained. The court of appeals examined Nebraska’s statute related to obstruction of a peace officer and noted
[A] “person commits the offense of obstructing a peace officer, when, by using or threatening to use . . . physical interference, or obstacle, he or she intentionally obstructs, impairs, or hinders . . . the enforcement of the penal law or the preservation of the peace by a peace officer.” Neb. Rev. Stat. § 28-906(1). . .[vi]
The court then stated that the officers had probable cause to believe Smith committed obstruction of a peace officer when “she stood in front of Storrs and used physical interference to block his detention.”[vii] Further, the court of appeals stated that a reasonable officer could have believed there was probable cause to arrest Storrs for obstruction when he refused to comply with commands to put his hands behind his back and stay still because he was being detained; instead, Storrs moved around and repeatedly asserted that he was not being detained.
The court of appeals then stated
What remains of the unlawful detention claim, therefore, is the time between when the officers saw that Smith did not match the dispatcher’s description and when an officer reasonably discerned probable cause to believe that Smith and Storrs were committing the offense of obstructing a peace officer. [viii]
Thus, the district court must reexamine this issue to determine if there was a lawful reason to detain Storrs and Smith between the time the officers realized they did not match the description of the shoplifters and the time when Storrs and Smith committed obstruction. The court of appeals noted that the officers did not, on appeal, assert that the odor of marijuana or a traffic violation provided such justification for the continued detention. Therefore, this claim is remanded to district court for a determination.
Claim Two: False Arrest:
The false arrest claim was based on the arrest for obstruction of a peace officer, although Storrs and Smith were released at the scene. Regarding this claim, the court of appeals stated
Assuming without deciding that the plaintiffs were arrested, we already have concluded that a reasonable officer could have believed that there was probable cause to arrest the plaintiffs for obstructing a peace officer. The existence of probable cause to support an arrest forecloses a wrongful arrest claim. See McCabe v. Parker, 608 F.3d 1068, 1075 (8th Cir. 2010). An officer who reasonably believes in the existence of probable cause is entitled to qualified immunity. Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012).[ix]
Thus, based on the reasons discussed above (in Claim One), the court decided that a reasonable officer could believe there was probable cause to arrest Storrs and Smith for obstruction of a peace officer under Nebraska law, therefore, the officers were entitled to qualified immunity on this claim.
Claim Three: Excessive Force
Storrs alleged that Officer Rozeboom used excessive force by intentionally tasing him in the groin. Storrs argued that tasing him in the groin amounted to “deadly force.” The evidence Storrs relied upon to support this allegation was (1) he was hit in the groin, and (2) Officer Rozeboom is a Taser instructor, and since he was trained in the use of the Taser, there is an inference that he hit where he intentionally aimed.
The court of appeals noted video of the incident contradicted Storrs’s assertion that the officer intentionally aimed at his groin. Specifically, the court of appeals noted the video showed the “red lights” from the taser were visible on Storrs’ body as Storrs moved around and never focused on Storrs’ groin. The court of appeals stated
That Rozeboom was trained to use a taser is insufficient to support an inference that he intentionally aimed at the groin. The video shows that Storrs was moving throughout the encounter, and there is no other indicium of an intentional strike to the groin. Rozeboom is thus entitled to summary judgment on this claim.[x]
As such, the court of appeals held that the fact that Rozeboom is trained to use the taser (or is an instructor) is not enough to show that he intentionally targeted Storrs’ groin. Storrs’ movement contributed to him being struck in the groin; therefore, Officer Rozeboom was entitled to summary judgment on this claim.
Claim Four: First Amendment Retaliation
The plaintiffs alleged that the officers retaliated against them because they were exercising their rights under the First Amendment.
The court of appeals discussed the legal principles applicable to a First Amendment retaliation claim and stated
The First Amendment prohibits officials from retaliating against a citizen for exercising his right to freedom of speech. Hartman v. Moore, 547 U.S. 250, 256, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006). While that right “is settled at a high level of generality,” to establish a violation in their “particular case,” Storrs and Smith must present evidence that (1) they engaged in a constitutionally protected activity; (2) the officers took adverse action against them that would chill a person of ordinary firmness from continuing in the activity; and (3) the adverse action was motivated in part by the plaintiffs’ exercise of their constitutional rights. Scott v. Tempelmeyer, 867 F.3d 1067, 1070 (8th Cir. 2017); see Scheffler v. Molin, 743 F.3d 619, 621 (8th Cir. 2014).[xi]
Smith argued that Officer Malone and Officer Maas retaliated against her for video recording the encounter. During the incident, Officer Maas grabbed her arm as she was recording, and she pulled away from Maas while continuing to record. Officer Malone then handcuffed her.
Smith argued that the Eighth Circuit, previously held, in
Chestnut v. Wallace, 947 F.3d 1085 (8th Cir. 2020), [there is] a “clearly established right to watch police-citizen interactions at a distance and without interfering.” Id. at 1090.[xii]
However, the court noted that, as she was recording, the video evidence of the incident showed that she was interfering with officers by positioning herself between Storrs and the officers. The court then stated
Smith cites no authority that she enjoyed a constitutional right to record a police encounter while interfering with an effort of the officers to carry out their duties. She thus cannot show that the officers violated a clearly established right when they arrested her for obstructing a peace officer.[xiii]
Thus, Smith’s claim fails as the officers are entitled to qualified immunity.
Storrs argued that the officers retaliated against him because he was tased because he called the officers “racists.” The only evidence that Storrs provided to support his claim was the short period of time from when he called the officers “racists” to when Officer Rozeboom tased him. The court of appeals stated
Evidence of temporal proximity between the exercise of a constitutional right and an adverse action “alone is generally insufficient to raise a triable issue of material fact on retaliatory motive.” Flowers v. City of Minneapolis, 558 F.3d 794, 800 (8th Cir. 2009); see Wilson v. Northcutt, 441 F.3d 586, 592-93 (8th Cir. 2006).[xiv]
The court of appeals also noted that prior to being tased, Storrs made an “intervening lunge toward Smith,” which gave the officers “reasonable grounds to use force.”[xv] Thus, since there was a valid reason for the use of force, and the only evidence offered by Storrs was the temporal proximity of his statement to the use of force, the court of appeals held that summary judgment in favor of the officers was appropriate on his retaliation claim.
Therefore, both Smith’s and Storrs’s retaliation claims were properly dismissed.
Claim Five: Illegal Search
Storrs argued the officers illegally searched his vehicle, and Smith argued the officers illegally searched her purse, which was inside Storrs’ vehicle. The officers argued that there was probable cause to search the vehicle and its contents, to include Smith’s purse, because of the odor of marijuana coming from the vehicle. Storrs and Smith argued that the officers could not have smelled marijuana because none was present in the vehicle and they had not smoked marijuana that day.
The court of appeals held that this was a factual dispute that must be decided by the district court, as both Officers Malone and Maas are seen discussing smelling the odor of marijuana on video.
Therefore, summary judgment was not appropriate on this claim because the district court must make a factual determination.
Takeaways from this case:
- Reasonable suspicion can quickly dissipate after a vehicle is stopped and it is determined the occupants do not meet the description of the vehicle. If this happens, officers must end the stop. [Note: In this case, it was later determined from store video that the suspects were in fact, four black females, not a black male and black female. Initial descriptions provided by witnesses may be partially incorrect; thus, if other factors suggest the officers have stopped the correct suspects, briefly detaining the suspects, to verify video evidence or to bring the witnesses to the stop location for a show-up, may be permissible.]
- Regarding tasing, striking a person in a non-target area (such as the groin, chest, head), does not mean that the officer committed excessive force, because the suspect’s movement, the speed at which the officer must act, and other factors can cause this to occur.
- While a person has a First Amendment right to video record the police, the First Amendment does not mandate that they may do so in a manner that physically interferes with the officer’s ability to perform their duties.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] No. 22-3358 (8th Cir. July 25, 2024)
[ii] Id. at 1-5
[iii] Id. at 4 (emphasis added)
[iv] Id. at 7 (emphasis added)
[v] Id. at 7-8
[vi] Id. at 8-9
[vii] Id. at 9
[viii] Id. at 9-10
[ix] Id. at 10 (emphasis added)
[x] Id. at 11 (emphasis added)
[xi] Id. at 11-12 (emphasis added)
[xii] Id. at 12 (emphasis added)
[xiii] Id.
[xiv] Id. at 13 (emphasis added)
[xv] Id.
