Opinion
No. 4-288 / 03-0035
Filed August 11, 2004
Appeal from the Iowa District Court for Pottawattamie County, Charles L. Smith, Judge.
The plaintiffs appeal from the district court summary judgment ruling that dismissed their petition against the defendants. AFFIRMED.
Don Peterson, Council Bluffs, for appellants.
Robert Laubenthal and T.J. Pattermann of Smith Peterson Law Firm, L.L.P., Council Bluffs, for appellees Iowa West Racing Assoc., Rodriguez, and Coniglio.
Michael Sciortino, Council Bluffs, for appellees Council Bluffs, Sellers and Galvan.
Heard by Sackett, C.J., and Huitink and Miller, JJ.
Plaintiffs Robert and Jacqueline Turk appeal from the district ruling that granted the summary judgment motions of defendants Iowa West Racing Association, Inc., the City of Council Bluffs, and police officers Mark Galvin and Robert Sellers, and dismissed the Turks' claims against all the defendants. We affirm.
I. Background Facts and Proceedings.
The incident giving rise to these proceedings took place on or about May 15-16, 1997, at the casino operated by Iowa West Racing Association, Inc. (Bluffs Run). The record, which includes security video tape, reveals the following undisputed facts. Robert and Jacqueline Turk were walking through the casino, carrying glasses of alcohol, laughing, and on occasions staggering and stumbling. The couple was stopped by Bluffs Run security supervisor Diana Rodriguez, accompanied by uniformed security guards. Rodriguez informed the Turks they had been stopped because Jacqueline Turk appeared to be intoxicated.
Jacqueline was informed that she could either leave the casino or submit to a preliminary breath screening test (PBT). This was in accord with standard casino policy, which provided that anyone who appeared to be intoxicated was required to demonstrate their sobriety, by submitting to a PBT, before they would be allowed to remain on the gambling floor. If the PBT results indicated the individual was in fact intoxicated, he or she was placed in a taxi cab and sent home. The policy was an attempt to comply with Iowa Admin. Code r. 491-11.2(2)(b), which prohibits casinos from allowing visibly intoxicated persons to gamble.
Jacqueline refused to leave the casino or to submit to a PBT. She told casino personnel she was not intoxicated, had only had one and one-half drinks, was not gambling, and would be leaving shortly, after her husband Robert played his last four nickels in the nickel slot machines. Neither Jacqueline nor Robert were physically restrained in any way, and Robert can be seen briefly leaving camera range.
Within a few moments Rodriguez and the guards were joined by security manager Don Coniglio. Shortly after arriving in camera range, Coniglio used his radio to request the assistance of uniformed off-duty police officers with an individual or individuals who were uncooperative and who either were or appeared to be intoxicated. Officers Mark Galvin and Robert Sellers responded. Officers Galvin and Sellers were working at the casino pursuant to a contract between Bluffs Run and the City of Council Bluffs (City). Officers Galvin and Sellers briefly interacted with and observed the Turks.
Soon after arriving Officer Sellers took Jacqueline's drink from her hand This led to a confrontation between Officer Sellers and Robert. The videotape shows Robert moving toward and apparently becoming verbally aggressive with Officer Sellers. Officer Sellers then places an outstretched arm between himself and Robert, and advances in this position, forcing Robert to move backwards, until Officer Sellers comes parallel with a trash can. Officer Sellers then disposes of Jacqueline's drink. During some or all of this time Officers Sellers's hand is on or touching Robert's shoulder. Robert can then be seen pushing Officer Sellers.
Robert denies pushing the officer. However, this issue was resolved against Robert by his conviction for assault, affirmed by this court on appeal. See State v. Turk, 595 N.W.2d 819 (Iowa Ct.App. 1999), point of law overruled in State v. Maring, 619 N.W.2d 393, 395 n. 1 (Iowa 2000) (overruling Turk to the extent it stood for the proposition that only evidence supporting the verdict need be considered in determining the sufficiency of the evidence).
Robert is taken down to the floor by Officer Galvin and Officer Sellers. During the course of subduing and handcuffing Robert, who can be seen struggling despite the efforts of the officers and casino security guards, Officer Sellers gives one clear, and perhaps a second less forceful, knee strike in the general area of Robert's upper buttocks. Jacqueline tries to intervene, and is also handcuffed. The couple is taken to the casino's security room, where they now ask for, but are denied, PBTs.
Both Robert and Jacqueline were charged with offenses stemming from the incident. Jacqueline entered guilty pleas to her charges. Robert was found guilty of interference with official acts and assaulting a peace officer, which convictions were upheld by this court in State v. Turk, 595 N.W.2d 819 (Iowa Ct.App. 1999).
The parties appear to agree that Jacqueline entered guilty pleas to public intoxication, disobeying a police officer, and disorderly conduct. However, the appendix cite for this proposition confirms only that Jacqueline entered a guilty plea to a violation of a law or ordinance arising out of the incident. It does not establish a plea to any specific crime.
In May 1999 the Turks filed suit against Bluffs Run, the City, and Officers Galvin and Sellers. Their recast petition forwarded one count against Bluffs Run for unlawful detention, and three counts against both the City and Officers Sellers and Galvin, one for unlawful detention, one for assault, and one for unreasonable force. In addition, two of the four counts viably raised claims that both casino employees and Officers Galvin and Sellers gave false testimony at Robert's criminal trial.
Both Bluffs Run, and the City and Officers Sellers and Galvin, moved for summary judgment, requesting dismissal of all claims. The district court granted both motions. It determined that the claims against Bluffs Run failed as a matter of law, and that the officers as well as the City had qualified immunity for any actions of the officers. Nothing in the court's ruling specifically addressed the false testimony claims, or any claim arguably directed at the City for the City's own acts or omissions. The Turks filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), and supplements thereto. The Turks asserted the district court failed to consider certain disputed facts and reached erroneous factual conclusions. The district court denied the post-trial motion, and the Turks appeal.
II. Scope and Standard of Review.
Summary judgment rulings are reviewed for the correction of errors at law. Iowa R. App. P. 6.4; General Car Truck Leasing Sys., Inc. v. Lane Waterman, 557 N.W.2d 274, 276 (Iowa 1996). Where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Iowa R. Civ. P. 1.981(3); City of West Branch v. Miller, 546 N.W.2d 598, 600 (Iowa 1996).
III. Issues of Timeliness, Preservation, and Waiver.
The defendants request that this court grant a separately-filed motion to dismiss the Turks' appeal. They correctly note the notice of appeal in this matter was filed well beyond the thirty days allowed for perfecting appeals, and that only a valid and proper rule 1.904(2) motion will toll the time for perfecting an appeal until thirty days after a ruling on such motion. See Iowa R. App. P. 6.5; Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998). They assert the rule 1.904(2) motion in this case was not validly made, as it was a mere reassertion of previously adjudicated legal issues. See Bellach, 573 N.W.2d at 905 (concluding rule 1.904(2) motion did not toll time for appeal as it "amounted to no more than a rehash of legal issues raised — and decided adversely to" appellant). Putting aside the fact that no motion to dismiss appears to have been filed, the defendants' assertion is without merit.
While we agree much of the Turks' post-ruling filings were little better than a rehash of legal issues, the district court's summary judgment ruling required the court to address legal issues in a factual context, and the Turks' rule 1.904(2) motion and its supplements did assert factual errors by the district court. We accordingly conclude that, at least in some respects, the motion was a proper rule 1.904(2) motion, and thus tolled the time for perfecting an appeal. See id. (noting a motion that "challenged an issue of fact tried by the court without a jury, or sought an amendment or enlargement of a legal conclusion reached by the court in that context" would have tolled time for appeal) (emphasis in original); see also Iowa R. Civ. P. 1.981(3) (specially approving rule 1.904(2) motion when summary judgment disposes of the entire case).
However, we need not address the merits of all the claims asserted in the Turks' recast petition. Although the petition appeared to raise claims based on allegedly false testimony by casino personnel and the police officers, and the City's allegedly negligent supervision and training of Officers Sellers and Galvin, those claims were never ruled on by the district court, or addressed in the Turks' post-trial motions. Moreover, the false testimony claims are given a fairly glancing treatment on appeal, and neither the false testimony nor the negligent supervision and training claims are supported by any legal authority. Accordingly, the Turks have failed to preserve error on these claims, and any error that has been preserved, has been waived. See Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."); Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002) (holding that a party must request a ruling from the district court in order to preserve error on an issue presented to, but not ruled on by, the court).
In addition, we note that any claims against the City for negligent or inadequate training and supervision of the officers are simply unsupported. The Turks contend there is a disputed material fact as to the City's actions because the officers lied or used unreasonable force, or because the contract between the City and the casino stated that officers would be "subject to the internal controls of [Bluffs Run's] security department." They did not, however, present any evidence that the actual supervision or training of the officers was inadequate. To the contrary, there is evidence the officers went through extensive training, and the contract between the City and the casino explicitly states that the officers remain under the supervision of the chief of police or his designee, that the officers are to function as police officers, and the casino's control over them is limited to location. Thus, even if we were to consider the claims against the City that are based on the City's own actions, we would be forced to conclude they do not preclude summary judgment because they are unsupported by any substantial evidence in the record.
Many of the Turks' claims against the City sought only punitive damages. However, the City is immune in any tort action, whether arising out of a governmental or proprietary function, from liability for any claim for punitive damages. See Iowa Code §§ 670.2, .4(5) (1999).
IV. Claim against Bluffs Run for Unlawful Detention.
Count I of the Turks' recast petition alleged Bluffs Run was vicariously liable for its employees' unlawful detention of Jacqueline, in that Rodriguez informed Jacqueline she "must take a PBT test . . . on the mere suspicion she might be intoxicated," and Coniglio instigated further unlawful detention by informing Officers Sellers and Galvin that Jacqueline was intoxicated. To show that these actions amounted to Jacqueline's unlawful detention, otherwise known as false imprisonment, the Turks must demonstrate a restraint on Jacqueline's movement or liberty that was both against her will and unlawful. See Valadez v. City of Des Moines, 324 N.W.2d 475, 477 (Iowa 1982).
The district court determined there was no evidence in the record to support a claim that casino personnel had unlawfully detained Jacqueline, as there was no evidence those employees had "restrained the Turks against their will." We must agree with this assessment by the district court. It is undisputed that when Rodriquez stopped the Turks Jacqueline was given the option to either submit to a PBT or leave the casino. It is also undisputed that she refused both options. There is no evidence that at any time prior to being handcuffed by the officers, Jacqueline's option to leave the casino was revoked. Jacqueline was not unlawfully restrained against her will simply because the casino employees refused to allow a patron reasonably suspected of intoxication to move freely around the gambling floor.
The Turks seem to further assert that Jacqueline was unlawfully detained because as a sober, non-gambling patron, she should have been allowed to move freely about the casino until her husband was ready to leave. They contend that casino personnel in fact had reason to know Jacqueline was not intoxicated or gambling because she denied both, and did not engage in blatantly intoxicated behavior. However, this argument presupposes that the casino employees were to value Jacqueline's protestations above their own collective personal observations. The record, including the video tape, contains undisputed facts that give rise to an objectively reasonable belief that Jacqueline might in fact be intoxicated.
The district court also rejected the claim that Coniglio had instigated a further unlawful detention when he called the officers and reported that the Turks were intoxicated or suspected of being intoxicated, and uncooperative. The court concluded there could be no liability for merely reporting an alleged crime and identifying supposed offenders to the authorities, in this case Officers Sellers and Galvin, who were then free to use their own judgment. We believe the district court correctly drew the distinction between merely reporting an incident or suspect, and instigating detention by authorities. See Busch v. City of Anthon, 173 F. Supp.2d 876, 895 (N.D.Iowa 2001).
Although the Turks claim that Coniglio did in fact instigate their detention by Officers Sellers and Galvin,
It is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be done about any arrest, without persuading or influencing them.
Id. (citing Restatement (Second) of Torts § 45A cmt. c (1965)). There is no evidence in the record that Coniglio attempted to persuade or influence the officers' actions.
The Turks claim this case is distinguishable from Busch because Busch involved an arrest, not simply additional pre-arrest unlawful detention. However, we see no basis for distinguishing the two situations. See Busch, 173 F. Supp.2d at 894 (noting that, in Iowa, false arrest and false imprisonment are indistinguishable).
The Turks assert that Busch should not inform our decision as, in this case, Coniglio supplied false information to the police when he stated the Turks were in fact intoxicated. The only fact they forward in support of this assertion is that Coniglio allegedly had not observed or interacted with the Turks prior to calling in the officers. Even if we assume there is a disputed fact issue as to what Coniglio said to the officers, and whether it was true statement or made after sufficient observation, the facts must indicate that Coniglio knowingly supplied false information, and not merely mistaken information given in good faith. Id. Nothing in the record, however, supports a disputed fact issue as to deliberate falsity. We conclude the district court properly dismissed the claim against Bluffs Run as a matter of law.
V. Officer Sellers and Officer Galvin, Individually, and the City for the Acts of the Officers in the Scope of their Employment.
Count II of the Turks' recast petition alleged unlawful detention or false imprisonment based on the actions of Officers Sellers and Galvin, essentially because the officers allegedly demanded that the Turks submit to PBT tests even though they did not have probable cause to believe the Turks were intoxicated, and in violation of the Turks "right" not to submit to a PBT. Count III alleged Officer Sellers assaulted Jacqueline by taking her drink away, and Robert by pushing him, laying both hands on him, and throwing him to the floor. Count IV alleged unreasonable force was used by Officers Sellers and Galvin in throwing Robert to the floor, and by Officer Sellers in delivering the knee strike(s).
In regard to all three counts, the district court ruled that Officers Sellers and Galvin were entitled to qualified immunity for their actions. The court found, based on the evidence, that a reasonable officer would suspect the plaintiffs were intoxicated, and that the officers acted reasonably in detaining the Turks. The court further found the City was immune under Iowa Code section 670.4(3) (1999).
Although the petition does not clearly allege civil rights violations as to all three counts, no one disputes and we therefore assume all three counts sufficiently allege that Officers Sellers and Galvin committed unconstitutional acts while carrying out their official duties. See Dickerson v. Mertz, 547 N.W.2d 208, 214 (Iowa 1996) (defining claim of a civil rights violation under 42 U.S.C. § 1983). The question of whether the officers have qualified immunity for these acts is one that can be answered by the court, and is a matter of objective reasonableness. Id. at 215. The officers are shielded from liability for civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. . . ." Id. The relevant question is whether a reasonable officer "could have believed" Sellers and Galvin's actions were lawful, "in light of clearly established law and the information [Sellers and Galvin] possessed." Leydens v. City of Des Moines, 484 N.W.2d 594, 597 (Iowa 1992).
Despite the Turks' assertions to the contrary, there is evidence in the record which a reasonable officer could have believed raised a reasonable and articulable suspicion of intoxication, warranting at least an investigatory stop. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906-07 (1968) ("[a] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest."). When an officer has reasonable cause to believe the suspect is intoxicated, the suspect "may be briefly detained, asked to perform field sobriety tests and comply with other investigatory requests, without violating the suspect's Fourth Amendment rights." State v. Marks, 644 N.W.2d 35, 38 (Iowa Ct.App. 2002) (citing State v. Stevens, 394 N.W.2d 388, 391 (Iowa 1986)).
Here, the officers were informed by casino security personal that they were dealing with an individual or individuals who were or appeared to be intoxicated. The officers were then able to observe and interact with the Turks. During that time Jacqueline, who is holding a partially empty glass of an alcoholic beverage, can be seen visibly swaying and leaning in to speak with various persons. She also appears to, at times, be argumentative. These facts are sufficient to raise a reasonable and articulable suspicion of intoxication. Accordingly, it was within the officers' authority to request that Jacqueline comply with their request to submit to a PBT.
We similarly conclude that Officer Sellers acted in an objectively reasonable manner when he took Jacqueline's drink and pushed or moved back Robert with his arm, and when both Officer Sellers and Galvin took Robert down to the floor. The officers were faced with two uncooperative individuals. Then one of those individuals, Robert, became physically aggressive with Officer Sellers. Officer Sellers used his arm to maintain a distance between himself and his sidearm, and Robert. Robert then lunged at Officer Sellers, pushing or forcing him back. Robert's outstretched arm appeared to be in reaching distance of Officer Sellers's sidearm. The officers respond by taking Robert to the floor, and handcuffing him. Under the circumstances, a reasonable officer could conclude that, as the situation elevated, the steps the officers took were reasonably necessary to control the situation and ensure their own safety.
Finally, we come to the allegations of unreasonable force. The critical question in the qualified immunity context is whether an objectively reasonable officer in Officer Sellers's position could have determined that the throw down and knee strike(s) were reasonably necessary. See Iowa Code § 804.8 (defining the amount of force to be used in an arrest as "any force which the peace officer reasonably believes to be necessary to effect the arrest or to defend any person from bodily harm while making the arrest"); Chelf v. Civil Serv. Com'n of City of Davenport , 515 N.W.2d 353, 355 (Iowa Ct.App. 1994) (noting question is one of objective reasonableness). In deciding whether a particular use of force is objectively reasonable, "courts examine the facts and circumstances of each case, including the crime's severity, whether the suspect poses an immediate threat to the safety of officers or others, and whether the suspect actively resists arrest or flees." Lawyer v. City of Council Bluffs, 240 F. Supp.2d 941, 953 (S.D.Iowa 2002) (citations and internal quotation marks omitted).
Given Robert's lunge toward and push of Officer Sellers, it was objectively reasonable for the officers to take Robert down to the floor and restrain him. The video tape reveals that the knee strike or strikes were used by Officer Sellers in an attempt to subdue and handcuff Robert, who was continuing to struggle and resist the efforts of both officers and casino personal. Thus, the strikes too were objectively reasonable, so long as that amount of force was reasonably necessary to subdue and handcuff Robert. Here, Robert was being arrested for allegedly assaulting Officer Sellers after, at a minimum, being physically confrontational with a uniformed peace officer, lunging toward and pushing or forcing back that officer and placing himself in reach of that officer's weapon, and then continuing to struggle despite the efforts of multiple people to subdue him. Under the circumstances, a knee strike or strikes aimed in the general area of the upper buttocks was objectively reasonable. See id.
Robert seems to argues that knee strikes are per se unreasonable force, or are rendered unreasonable in these circumstances, because a special order of the City defines all knee strikes as "lethal force." We agree that the use of lethal force in these circumstances would not be objectively reasonable, and that the special order is relevant in determining whether a reasonable officer in Officer Sellers's position could have determined that the knee strike or strikes were reasonable force under the circumstances. However, we note that the Turks distort the actual language of the special order. Non-lethal force is defined as that which is objectively reasonable based on the totality of the circumstances, and not likely or intended to cause serious bodily harm. Lethal force, in contrast, is to be used to stop the imminent use of deadly force. Both categories of force include physical fighting techniques, including strikes and throwing techniques. Non-lethal strikes are a strike with "any available means and other personal weapons when the officer believes that degree and type of force is necessary," and lethal strikes are defined as strikes "with fists, hands, feet, knees, elbows, and other personal weapons when the officer reasonably believes that a degree and type of force is necessary." We cannot conclude that a reasonable officer would have found, based on the foregoing language, that a knee strike, regardless of force or location, could be used only as a response to the imminent use of deadly force. Such conclusion is in fact contrary to officer training, which instructs officers to use a knee strike in a situation such as the one presented here, to facilitate the handcuffing of the restrained individual.
Furthermore, even if the objective reasonableness of the officers' actions were subject to dispute, the officers' conduct was nevertheless entitled to qualified immunity. Qualified immunity is applicable unless the unlawfulness of the actions is apparent in light of clearly established law. See id. at 954. Here, no substantial evidence in the summary judgment record indicates that clearly established law prohibited the actions.
Nevertheless, we have concluded that Officers Sellers and Galvin did act in an objectively reasonable manner in fulfilling their duties. Thus, the City is also immune. Under Iowa Code section 670.4(3), municipalities are immune from liability for
[a]ny claim based upon an act or omission of an officer or employee of the municipality, exercising due care, in the execution of a statute, ordinance, or regulation whether the statute, ordinance or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.
See also Cline v. Union County, 182 F. Supp.2d 791, 800 (S.D.Iowa 2001) (distinguishing "[a]rrest issues [that] generally involve the permissible exercise of policy judgment and fall within the discretionary-function exception" from an illegal arrest or prosecution, which "does not represent a choice based on plausible policy considerations"). We find no error in the district court's dismissal of the Turks' claims against the City and Officers Sellers and Galvin.