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Date: 10-01-2021
Case Style:
Twyla Mcelree v. City of Cedar Rapids
Case Number: 19-2323
Judge: L. Steven Grasz
Court: United States Court of Appeals
For the Eighth Circuit
Plaintiff's Attorney: United States At
torney’s Office
Defendant's Attorney: United States Attorney’s Office
Description:
St. Louis, MO - Criminal defense lawyer represented defendant with asserting violations of various federal and state law under the United States Constitution, the Iowa Constitution, and Iowa tort law charges.
In October 2015, Investigators Brandon Boesenberg and Bryson Garringer
were conducting surveillance in a Walgreens parking lot. The officers sat in an
unmarked vehicle to avoid detection. Part of their stakeout included electronically
tracking purchases of pseudoephedrine2 in the area.
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
2
Pseudoephedrine is a non-prescription drug used to treat congestion caused
by colds and allergies. It is also used illicitly as a methamphetamine precursor. The
officers used the National Precursor Log Exchange (“NPLEx”), which allowed them
-3-
The officers noticed a pickup truck in the back of the parking lot. Two people
who the officers believed had connections to methamphetamine manufacturing were
in and about the truck. Annabelle Santos (one of the truck’s occupants) exited the
truck, entered the Walgreens, and purchased pseudoephedrine at 9:55 p.m. The
officers identified her using the NPLEx as she left the store and headed back to the
truck. At 9:59 p.m., the officers were alerted to another pseudoephedrine purchase
across the street at a different pharmacy. The officers saw a person who they
recognized as involved with methamphetamine walk up to the truck from the
direction of the other pharmacy.
3
Soon after, the officers saw Gossman exit the
truck, purchase pseudoephedrine in the Walgreens, and return to the truck. While
the truck was parked, the officers observed a flurry of movement inside and near the
truck and a flashlight shining from inside.
The officers began to suspect the individuals observed in and about the truck
were purchasing pseudoephedrine to make methamphetamine. The truck soon left
the parking lot, dropped off a passenger at a gas station across the street, and drove
through the city. Boesenberg and Garringer followed the truck, as did Sergeant
Nathan Juilfs who responded to a request for assistance from the other officers. The
officers decided to stop the truck because they suspected it contained evidence of
methamphetamine manufacturing. After receiving a call for a K9 unit, Officer Lucas
Jones arrived at the scene with his police dog, Bane.
to monitor all pseudoephedrine purchases at their location in real time. When an
attempted purchase was made nearby, the officers received the time, location,
purchaser’s driver’s license information, and purchasing history.
3
The officers believed the actual purchaser may have given the
pseudoephedrine to this person who then walked it to the truck.
-4-
When the officers approached the truck, they asked Dillon Graf and Santos to
exit and began interviewing them. After being prompted, Graf produced a knife, a
methamphetamine pipe, and some prescription pills.
While the other officers questioned Graf and Santos, Sergeant Juilfs
questioned Gossman through the truck’s open back window. After hearing about
Graf’s pipe,Juilfs told Gossman he would be searched. Gossman repeatedly reached
toward his own waist. Juilfs ordered Gossman to put his hands up, and Juilfs
removed a knife on a lanyard from around Gossman’s neck. Graf then informed
Garringer that there was a shotgun in the back seat. Several of the officers drew
their firearms and told Gossman to exit or he would be removed from the truck.
Gossman refused.
Gossman then got out of the truck, but when his feet hit the ground, he started
moving. With his weapon still drawn, Boesenberg used his other arm to attempt to
restrain Gossman. However, to avoid firing accidently, Boesenberg quickly released
him. Gossman took off running. Bane, the service dog, and Officers Jones and
Garringer chased him.
Jones and Garringer both noticed that the entire time Gossman ran, he held
the front of his waistband. After a short chase, Bane caught up with Gossman and
bit his arm. After running a few more steps, Gossman fell, twisted, and drew a
handgun from his waistband. Garringer yelled “gun.” He testified that he believed
Gossman fired at him and that he heard a clap and saw a flash of light. Garringer
stopped abruptly, slipped, and fell to the ground. Jones heard the shout and saw
Garringer fall before popping back up. Jones and Garringer then fired repeatedly at
Gossman, until they determined he was no longer a threat. Gossman was
pronounced dead at the scene. The medical examiner’s report and further
investigation revealed that Gossman was shot 24 times. An investigation also
revealed Gossman had methamphetamine in his system, and his 9mm handgun was
loaded but had not been fired.
-5-
Gossman’s surviving family members sued the City of Cedar Rapids and the
officers involved in Iowa District Court asserting nine separate counts including
violations of the United States Constitution, the Iowa Constitution, and Iowa tort
law. The city removed the case to federal court and ultimately moved for summary
judgment. The district court granted the city summary judgment on all claims.
II. Analysis
“We review the district court’s grant of summary judgment de novo, taking
the facts in the light most favorable to the nonmoving party.” See Oglesby v. Lesan,
929 F.3d 526, 531–32 (8th Cir. 2019). We draw all reasonable inferences in favor
of the family as the nonmoving party. Id. Summary judgment is proper if 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). “The nonmoving party must cite to specific
facts in the record demonstrating a genuine issue of fact for trial and may not rely
solely on allegations.” Lucke v. Solsvig, 912 F.3d 1084, 1087 (8th Cir. 2019).
The family argues that the officers lacked the reasonable suspicion required
to stop the truck and detain Gossman. The Fourth Amendment protects against
“unreasonable searches and seizures.” U.S. Const. amend. IV. Although officers
need probable cause to affect an arrest, for an investigatory stop, “the Fourth
Amendment is satisfied if the officer’s action is supported by reasonable suspicion
to believe that criminal activity ‘may be afoot.’” United States v. Arvizu, 534 U.S.
266, 273 (2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). “An
investigatory stop must be justified by some objective manifestation that the person
stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez,
449 U.S. 411, 417 (1981).4
4
The Iowa Supreme Court usually views the “Iowa Constitution’s search and
seizure provisions to track with federal interpretations of the Fourth Amendment.”
State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019) (quoting State v. Christopher,
757 N.W.2d 247, 249 (Iowa 2008)). An excessive force claim under the Iowa
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As a standard for initiating an investigative stop, reasonable suspicion hovers
well below preponderance of the evidence and need not rise to the level of probable
cause. Arvizu, 534 U.S. at 274. It is a “commonsense, nontechnical concept[]” that
requires more than a hunch. Ornelas v. United States, 517 U.S. 690, 695 (1996).
Officers must have “‘a particularized and objective basis’ for suspecting the person
stopped of criminal activity.” Id. at 696 (quoting Cortez, 449 U.S. at 417–18). We
look “to the totality of the circumstances, ‘allow[ing] officers to draw on their own
experience and specialized training to make inferences from and deductions about
the cumulative information available to them.’” United States v. Dortch, 868 F.3d
674, 680 (8th Cir. 2017) (alteration in original) (quoting Arvizu, 534 U.S. at 273).
We turn first to the stop of the truck that was carrying Gossman. The district
court found the stop was supported by reasonable suspicion based on (1) two to three
separate pseudoephedrine purchases in a twenty-minute span, (2) known
methamphetamine manufacturers associated with the truck, and (3) suspicious levels
of activity in and around the truck. We agree that these facts, taken together, support
reasonable suspicion that criminal activity may have been afoot.
This case is similar to United States v. Ameling, 328 F.3d 443 (8th Cir. 2003).
There, we upheld the investigatory stop of two people who purchased
pseudoephedrine separately from the same store before meeting up at a shared car,
and who had also purchased a lithium battery (another methamphetamine precursor)
at a different store. Id. at 445. The individuals’ movements in the stores and parking
lots—splitting up and rejoining one another periodically—and their separate
purchases of methamphetamine precursors supported a finding of reasonable
suspicion. Id. at 448. Although this case lacks a lithium battery purchase, the facts
are otherwise quite similar. In both cases, multiple people purchased
Constitution is also substantially similar to a claim under the United States
Constitution. State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). Because the
parties have not articulated any reason to treat their state law claims differently in
this case, we assess the state constitutional claims under the same general standards
as their federal constitutional claims.
-7-
pseudoephedrine separately within a short time and rejoined one another at the same
vehicle. And here, there are additional facts supporting reasonable suspicion, such
as (1) suspicious movement in and around the truck and (2) known
methamphetamine manufacturers standing around the truck. Ameling’s reasonable
suspicion holding supports the same here.
The family raises several arguments to the contrary. First, they argue that the
officers could not be sure they had definitively identified Gossman, Santos, or
anyone else before the stop. But reasonable suspicion does not require certainty,
including in the identification context. See Arvizu, 534 U.S. at 274 (noting how
reasonable suspicion is a considerably lower standard than the preponderance of
evidence standard); United States v. Lopez-Tubac, 943 F.3d 1156, 1158–59 (8th Cir.
2019) (finding an officer’s identification mistake did not negate reasonable
suspicion). Further, the officers’ suspicions as to the participants’ identities were
not developed in isolation. Combined with the other suspicious behavior observed,
their suspicions about the participants’ identities contributed to the reasonable
suspicion of the officers.
Second, the family argues that legally purchasing packages of cold medicine
is not against the law and the officers observed no traffic violations. In support, they
cite two state court cases holding the legal purchase of cold medicine did not support
reasonable suspicion. See State v. Schneider, 80 P.3d 1184, 1189–90 (Kan. Ct. App.
2003); People v. Lomas, 812 N.E.2d 39, 47–48 (Ill. App. Ct. 2004). Their argument
fails for two reasons.
First, under our precedent, lawful activity can—and often does—help form
the basis for reasonable suspicion. See, e.g., Ameling, 328 F.3d at 448 (concluding
legal purchases, in addition to other factors, supported a finding of reasonable
suspicion); see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (noting “nervous,
evasive behavior,” though not illegal, “is a pertinent factor in determining reasonable
suspicion”). Activity that does not directly indicate wrongdoing but suggests
criminality is highly relevant to a reasonable-suspicion determination. See Sokolow,
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490 U.S. at 10 (“‘[I]nnocent behavior will frequently provide the basis for a showing
of’ . . . reasonable suspicion.” (quoting Illinois v. Gates, 462 U.S. 213, 243–44 n.13
(1983))).
Second, the purchases of pseudoephedrine cold medicine (by separate people
tied to the same car) was not the only consideration that led to an investigative stop
here. The officers also observed individuals known to be methamphetamine users
and manufacturers hanging around the truck and suspicious activity inside the truck.
Collectively, the officers’ observations were enough to support the belief that
criminal activity might have been afoot.
Next, we hold the officers’ first attempt to detain Gossman was also supported
by reasonable suspicion. During a lawful Terry stop, officers can “take any measures
that are reasonably necessary to protect their personal safety and to maintain the
status quo during the course of the stop.” Waters v. Madson, 921 F.3d 725, 737 (8th
Cir. 2019) (cleaned up) (quoting United States v. Sanford, 813 F.3d 708, 713 (8th
Cir. 2016)). Depending on the circumstances, officers may instruct the driver and
passengers to step out of the car, prevent passengers from leaving the scene, and
increase restraint proportionate to uncooperative behavior during an investigative
detention. See id. at 738; United States v. Smith, 645 F.3d 998, 1001 (8th Cir. 2011).
Here, the officers had reason to believe Gossman was armed because the
driver of the truck had told them there was a shotgun in the back seat near Gossman,
and Juilfs had already removed a knife from around Gossman’s neck. In addition to
the officers’ suspicions that Gossman was armed, Gossman’s lack of cooperation
and his sudden movements in the back seat supported restraining him. See Waters,
921 F.3d at 738 (finding the use of handcuffs and placing the suspect in a squad car
were justified where the suspect displayed argumentative behavior and refused to
obey orders). As soon as Gossman exited the truck, the record indicates he
physically struggled with Boesenberg and ran off. Jones’s decision to release Bane
to subdue the struggling Gossman and keep him from leaving was not unreasonable.
See Mann v. Yarnell, 497 F.3d 822, 826 (8th Cir. 2007) (concluding the use of a
-9-
police dog to control a non-compliant suspect was reasonable where the suspect was
merely twisting on the ground).
The family next argues the officers’ use of deadly force was excessive. Our
precedent says otherwise. Succeeding on an excessive force claim requires a
showing that the officers used unreasonable force “judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Swearingen v. Judd, 930 F.3d 983, 987 (8th Cir. 2019) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). When analyzing reasonableness, a court must consider
“that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Id. at 988. The use of deadly force
is constitutionally reasonable under the Fourth Amendment “if an officer has
probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or others.” Thompson v. Dill, 930 F.3d 1008, 1013 (8th Cir.
2019) (quoting Morgan v. Cook, 686 F.3d 494, 497 (8th Cir. 2012)). That rule covers
an officer’s objectively reasonable mistake. Id. Before using deadly force, officers
should give “some warning” if it is “feasible.” Dooley v. Tharp, 856 F.3d 1177,
1181 (8th Cir. 2017) (quoting Loch v. City of Lichfield, 689 F.3d 961, 967 (8th Cir.
2012)).
Here, Garringer and Jones reasonably believed Gossman posed a serious
threat to their safety and that deadly force was justified. When Bane caught him,
Gossman drew a handgun. That drawn handgun “pose[d] a threat of serious physical
harm” to the officers and justified their use of deadly force against Gossman.
Thompson, 930 F.3d at 1013.
The family advances two primary arguments as to why it was unreasonable
for the officers to shoot Gossman. They first emphasize that Garringer mistakenly
believed Gossman fired his gun. They also argue the officers should have warned
Gossman before firing. Neither argument has merit considering the totality of the
circumstances. First, we need not resolve whether Garringer’s mistaken belief was
-10-
reasonable here since deadly force was authorized because Gossman pulled a gun
and thus the officers were “faced with an apparently loaded weapon.” Smith v. City
of Brooklyn Park, 757 F.3d 765, 772 (8th Cir. 2014) (“[N]o constitutional or
statutory right exists that would prohibit a police officer from using deadly force
when faced with an apparently loaded weapon.” (quoting Sinclair v. City of Des
Moines, 268 F.3d 594, 596 (8th Cir. 2001) (per curiam))). Second, Gossman’s
family is correct that a warning should be given if it is feasible. See Dooley, 856
F.3d at 1181. But where the decision to shoot must be made in a “split-second,” as
here, it is reasonable to forgo a warning. See Swearingen, 930 F.3d at 987. In light
of the above, we hold the use of deadly force did not violate the Fourth Amendment.
The family’s state law assault and false arrest claims also fail because the
officers did not act unreasonably in using deadly force and did not act unlawfully in
detaining Gossman. Under Iowa law, “an assault only occurs if the peace officer
does not reasonably believe the particular force was necessary in the circumstances.”
Johnson v. Civil Serv. Comm’n, 352 N.W.2d 252, 257 (Iowa 1984); Iowa Code
§ 804.8. And a false arrest occurs only if there is an unlawful detention or restraint.
Thomas v. Marion Cnty., 652 N.W.2d 183, 186 (Iowa 2002). Because the officers’
use of deadly force was reasonable and the detention of Gossman was lawful, the
district court properly disposed of the assault and false arrest claims.5
Outcome: For the foregoing reasons, we affirm
Plaintiff's Experts:
Defendant's Experts:
Comments: