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Date: 08-07-2021

Case Style:

Ngong Garang v. City of Ames

Case Number: 20-1050

Judge: Bobby E. Shepherd

Court: United States Court of Appeals For the Eighth Circuit

Plaintiff's Attorney:

Defendant's Attorney:

St. Louis, MO Criminal defense Lawyer Directory


St. Louis, MO - Criminal defense lawyer represented defendant with assault and robbery charges.

Early in the morning on October 15, 2017, five City of Ames police officers,
Officers Jennifer Yetmar, Ashley Hochberger, Brook McPherson, and Tyler Fischer
and Sergeant J. Congdon, responded to a 911 call reporting an assault and robbery
at an apartment complex. The caller, Wyatt Graves, reported that two or three black
males and two black females had broken into his apartment, assaulted him, and
robbed him. When the officers arrived, Officer Yetmar stopped to speak to the
occupants of a vehicle exiting the apartment complex’s parking lot. One of the
female occupantstold Officer Yetmar that, while exiting the building,she had shared
an elevator with a group of black men and women and that she overheard one of the
individuals state that the group needed to leave because the cops were on their way
and the individual did not want to go back to jail. The woman recognized one of the
men in the elevator as Gony Bijiek. Officer Yetmar then radioed Officers Fischer
and McPherson that Bijiek had potential involvement in the incident and that they
should keep an eye out for him.
Shortly after receiving this radio transmission, Officer McPherson, who was
familiar with Bijiek from prior contacts, observed Bijiek walking toward the
entrance of the apartment complex with two women. Officer McPherson observed
a black male, later identified as Garang, lean his head and upper body out of the
apartment complex entrance; Officer McPherson noted that the male appeared to be
looking for someone. Garang, who was a resident of the apartment building, went
back into the building, followed by Bijiek and the two women. Garang entered a
stairwell in the lobby while Bijiek and the two women walked toward the elevators.
Officers McPherson and Fischer entered the apartment lobby, stopped Bijiek as he
walked toward the elevators, and spoke with him. After several minutes, while
Officer Fischer was speaking with Bijiek, Officer McPherson observed Garang poke
his head back into the lobby from the stairwell door. Officer McPherson noted
Garang’s apparent interest in the officers’ contact with Bijiek and thought that
Garang was potentially associated with Bijiek.
Officer McPherson then approached Garang and initiated contact, asking
Garang for identification. Garang was unable to provide identification, so Officer
McPherson asked for his name to verify his identity through dispatch. Garang
provided the name “John Garang,” which is his nickname, and did not provide his
legal name, Ngong Kaw Garang. Officer McPherson was unable to verify Garang’s
identity with dispatch based on the name “John Garang.” While McPherson was
trying to run Garang’s name, Garang again entered the stairwell. Officer McPherson
called Garang back into the lobby, where Garang eventually provided his legal name,
which McPherson was able to verify with dispatch.
Officer Yetmar, who, along with Sergeant Congdon, had spoken with Graves
in his apartment upon the officers’ arrival at the complex, returned to the lobby.
After several minutes, she made contact with another individual, Puok Kong Kang,
who had entered the lobby and was wearing clothing consistent with Graves’s
description of his assailants. While Officers McPherson, Fischer, and Yetmar were
in the lobby speaking with Garang, Bijiek, and Kang, Graves entered the lobby.
Graves pointed at both Bijiek and Kang before leaving; he did not make any motion
toward Garang, who at that time was across the lobby and obscured by the open
stairwell door. Graves then exited the lobby.
Roughly ten minutes later, Graves returned to the lobby, accompanied by
Sergeant Congdon. Sergeant Congdon testified that Graves identified Garang,
Bijiek, and Kang as the men involved in his attack. Officer Hochberger, who was
standing with Congdon and Graves, also testified that Graves verbally identified the
three men in the lobby as the ones who attacked him. Officer Yetmar, who was
questioning Kang, also heard Graves identify Garang, Bijiek, and Kang as the
perpetrators. When deposed as part of this case roughly two years later, Graves
testified that his memory of the entire evening was hazy and that he did not
remember many of the details. While he could not recall identifying the three
individuals as his attackers, he acknowledged that he had been informed that he had
identified the three men and had no reason to dispute the identification. After
Graves’s identification, Sergeant Congdon instructed the officers to arrest all three
men. Officer McPherson effectuated the arrest of Garang while Officers Yetmar,
Fischer, and Hochberger effectuated the arrests of Bijiek and Kang, arresting each
for second degree robbery.
The Ames Police Department continued its investigation of the robbery after
the arrests of the three suspects. The investigation included conducting follow-up
interviews, executing search warrants, and obtaining surveillance videos. Detective
Cole Hippen collected surveillance video from the apartment complex on October
18, 2017, three days after the incident, which included video of the lobby and the
hallway outside of Graves’s apartment for the time period immediately preceding
the attack through the time period immediately following the attack. The hallway
surveillance video demonstrated that Garang was not in Graves’s apartment at the
time of the attack. Hippen provided the surveillance video to the Story County
Attorney’s Office the same day; however, the County Attorney’s Office decided not
to seek dismissal of Garang’s charges based on the surveillance video, believing that
Garang could still have been involved in the attack as either an accomplice or an
accessory after the fact. Garang, who had been unable to post bail, remained in
custody until November 2, 2017, when Bijiek entered into a proffer agreement,
which provided additional evidence exculpating Garang. After Bijiek’s proffer, the
County Attorney’s Office filed a motion to dismiss the charges against Garang,
which the court granted, and he was released.
Garang then filed this action, asserting claims of wrongful arrest and detention
against the City of Ames, Officers Hochberger, Fischer, McPherson, and Yetmar,
Sergeant Congdon, and Detective Hippen.
Defendants filed a motion for summary
judgment, asserting that the officers were entitled to qualified immunity because
they had probable cause to arrest Garang and were not involved in any decision to
detain Garang and asserting that the City was entitled to judgment as a matter of law
in the absence of any evidence of a violation of Garang’s rights. Officers
Hochberger, Fischer, and Yetmar filed a second motion for summary judgment
asserting that they were entitled to qualified immunity because they were not
personally involved in Garang’s arrest or detention in any manner. The district court
denied both motions, concluding that factual disputes precluded the grant of
summary judgment based on qualified immunity.
As to the motion for summary
judgment filed by all defendants, the district court identified factual disputes related
to Graves’s identification of his attackers, and as to the motion for summary
judgment motion filed by Hochberger, Fischer, and Yetmar, the district court
identified factual disputesregarding the information all officers provided to Sergeant
Garang’s amended complaint initially named three other individuals, D.
Johnsen, T. Harms, and G. Huff, but the parties later stipulated to the voluntary
dismissal of the claims against these individuals.
The district court did not independently address the City’s argument in its
order denying summary judgment or in its motion for reconsideration; nevertheless,
the district court denied summary judgment to all defendants, which included the
City. The City is included as an appellant in this appeal, but the substance of
Appellants’ briefing addresses only whether the officers were entitled to qualified
immunity. As a municipality, the City is not entitled to qualified immunity. See
Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163,
166 (1993) (“[U]nlike various government officials, municipalities do not enjoy
immunity from suit—either absolute or qualified—under § 1983.”). Our opinion is
limited to consideration of the district court’s denial of the summary judgment
motions and motion for reconsideration based on qualified immunity.
Congdon, who made the decision to arrest Garang. Defendants filed a motion for
reconsideration, which the district court denied, again concluding that factual
disputes precluded summary judgment. Defendants now appeal both the denial of
the summary judgment motions and the denial of the motion for reconsideration.
Defendants assert that the district court erroneously denied the first motion for
summary judgment and the motion for reconsideration because it erroneously found
factual disputes existed; failed to determine whether the officers had arguable
probable cause to arrest Garang; and failed to acknowledge that the officers could
not be liable for any claims stemming from Garang’s post-arrest detention when they
had no control over the charges against him after his arrest. Officers Hochberger,
Fischer, and Yetmar also assert the district court erroneously denied their second
motion for summary judgment and the motion for reconsideration because they were
not involved in Garang’s arrest or detention and therefore did not violate his
constitutional rights.
We review the denial of a motion for summary judgment based on qualified
immunity de novo. Nord v. Walsh Cnty., 757 F.3d 734, 738 (8th Cir. 2014).
“Summary judgment is appropriate when the evidence viewed in the light most
favorable to the nonmoving party presents no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.” Id. (citation omitted). With
respect to a motion for reconsideration, “[a] district court has wide discretion over
whether to grant a motion for reconsideration of a prior order, and ‘we will reverse
a denial of a motion for reconsideration only for a clear abuse of discretion.’” SPVLS, LLC v. Transamerica Life Ins. Co., 912 F.3d 1106, 1111 (8th Cir. 2019)
(citations omitted). An abuse of discretion occurs where “the district court’s
judgment was based on clearly erroneous factual findings or erroneous legal
conclusions.” Id. (citation omitted).
In determining whether an officer is entitled to qualified immunity, we apply
the familiar two-prong framework: first, “whether the plaintiff has stated a plausible
claim for violation of a constitutional or statutory right,” and second, “whether the
right was clearly established at the time of the alleged infraction.” Kulkay v. Roy,
847 F.3d 637, 642 (8th Cir. 2017) (citation omitted). “Courts are ‘permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first.’” Id. (citation omitted). In conducting
this analysis, we “may review the legal issues whether conduct violated the Fourth
Amendment or clearly established law,” but “cannot review whether a factual
dispute is genuine.” Sok Kong v. City of Burnsville, 960 F.3d 985, 991 (8th Cir.
2020), cert. denied, No. 20-875, 2021 WL 2519406 (U.S. June 21, 2021). We “may
review the purely legal question whether a factual dispute is material. A nonmaterial
difference in facts does not prevent appellate review.” Id. (citation omitted). While
this Court ordinarily adopts the plaintiff’s version of events, “this [C]ourt does not
adopt the plaintiff’s version if it is ‘blatantly contradicted by the record.’” Id. at 989
(quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

We begin by considering the motion for summary judgment filed by all
defendants. Defendants first assert that the district court erroneously denied the
officers qualified immunity on Garang’s wrongful arrest claim because arguable
probable cause existed to support the arrest and thus they committed no
constitutional violation. “A warrantless arrest is consistent with the Fourth
Amendment if it is supported by probable cause, and an officer is entitled to qualified
immunity if there is at least ‘arguable probable cause.’” Borgman v. Kedley, 646
F.3d 518, 522-23 (8th Cir. 2011) (citation omitted). Probable cause exists “when
the totality of the circumstances at the time of the arrest ‘[is] sufficient to lead a
reasonable person to believe that the [suspect] has committed or is committing an
offense,’” and arguable probable cause “exists even where an officer mistakenly
arrests a suspect believing it is based in probable cause if the mistake is ‘objectively
reasonable.’” Id. at 523.
“Probable cause . . . is not a high bar: It requires only the kind of fair
probability on which reasonable and prudent people, not legal
technicians act.” But it is a bar. An arrest must be supported by more
than a reasonable, articulable suspicion that a person committed a
crime. There must be a “fair probability” or a “substantial chance” that
the person seized has committed an offense.
Bell v. Neukirch, 979 F.3d 594, 603 (8th Cir. 2020) (alteration in original) (citations
The record supports the conclusion that the officers had arguable probable
cause to arrest Garang for the assault based on Graves’s identification of Garang as
one of his attackers. Although the district court determined that this was a fact in
dispute, upon our review, we conclude that the district court’s determination is
“blatantly contradicted by the record” and is thus within the scope of our review.
See Kong, 960 F.3d at 991. The district court’s conclusion that this fact is disputed
is premised on the deposition testimony given by Graves roughly two years after the
incident stating that he did not remember making an identification and the affidavit
Garang submitted in opposition to defendants’ summary judgment motion stating
that at no time did Graves physically or verbally identify Garang as one of his
attackers. However, this record evidence does not create a factual dispute.
First, Graves’s deposition testimony does not actually dispute that he made
the identification; instead, Graves merely stated that he had no recollection of
making the identification but had no reason to challenge the officers’ statements that
he identified Garang. See To v. U.S. Bancorp, 651 F.3d 888, 892 n.2 (8th Cir. 2011)
(“An assertion that a party does not recall an event does not itself create a question
of material fact about whether the event did, in fact, occur.”). And, to the extent that
Graves opined, well after the fact, about whether his physical condition as a result
of the attack impacted his ability to make a proper identification, he does not deny
that he made such an identification. Therefore, this testimony does not create a
factual dispute as to whether Graves identified Garang as one of his attackers. Nor
does it impact whether officers were entitled to rely on the identification. See Clay
v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987) (“Clearly, law enforcement officers
are entitled to rely on information supplied by the victim of a crime, absent some
indication that the information is not reasonably trustworthy or reliable.”). The
record does not suggest that Graves’s identification was either untrustworthy or
unreliable. See United States v. Sparks, 265 F.3d 825, 830 (9th Cir. 2001), overruled
on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (“We are
not convinced by any of [defendant’s] arguments challenging his identification. . . .
[The victim’s] credibility was not seriously in dispute. This was not an unreliable
criminal informant, but a complaining victim who had no apparent reason to lie.”).
Although Graves had been assaulted, he was still able to make a 911 call and speak
with officers about the incident and describe in some detail what occurred. Nothing
in the record suggests that the officers should have questioned the reliability of his
identification based on Graves’s condition following the attack.
Second, while Garang’s affidavit avers that Graves at no point identified
Garang, this is inconsistent with Garang’s prior deposition testimony during which
he stated that he could not hear what Graves and Sergeant Congdon were speaking
about at the time Graves made the identification, and thus would have been unable
to conclusively state whether Graves identified him. “It is well-settled that parties
to a motion for summary judgment cannot create sham issues of fact in an effort to
defeat summary judgment.” Button v. Dakota, Minn. & E. R.R. Corp., 963 F.3d
824, 830 (8th Cir. 2020) (emphasis omitted). An affidavit is a sham affidavit and
should be disregarded “if it contradicts prior testimony or is a ‘sudden and
unexplained revision of testimony [that] creates an issue of fact where none existed
before.’” Id. (alteration in original) (citation omitted). Garang’s affidavit is both a
sudden and unexplained revision of his prior testimony that he was unable to hear
Graves speaking with Sergeant Congdon and creates a factual dispute regarding
whether Graves identified his attackers where there otherwise would be no dispute.
Therefore, we disregard Garang’s affidavit in determining whether there is a genuine
issue of material fact regarding Graves’s identification.
Apart from Graves’s deposition testimony and Garang’s affidavit, the record
undisputedly demonstrates that Sergeant Congdon and Officers Yetmar and
Hochberger all heard or observed Graves identify Garang as one of his attackers.
Although the district court determined that there was conflicting testimony about
whether Graves made one or two trips to the lobby to identify his attackers and
whether he was able to identify Garang in both instances, surveillance video in the
record demonstrates that on Graves’s first trip to the lobby, Garang was obscured by
an open stairwell door, which would have rendered Graves unable to see him.
Further, the surveillance video depicts Graves returning to the lobby for a second
time, and there is nothing in the record that calls into doubt each of the officers’
testimony that Graves affirmatively identified the three men as his attackers.
Given the foregoing, we conclude that the district court’s conclusion that it
was disputed whether Graves identified Garang as one of his attackers is blatantly
contradicted by the record. Considering the totality of the circumstances, primarily
Graves’s identification of Garang, coupled with Garang’s behavior during the
encounter—which included showing an unusual amount of interest in the officers’
investigation, initially providing a name that could not be verified because it was not
Garang’s legal name, and attempting to leave the lobby after making contact with
Officer McPherson—provided the officers with at least arguable probable cause to
arrest Garang. To the extent that Garang asserts the later-obtained surveillance tape
and other exculpatory evidence detracts from the officers’ claim of arguable
probable cause to arrest him, “[a]s probable cause is determined ‘at the moment the
arrest was made,’ any later developed facts are irrelevant to the probable cause
analysis for an arrest.” Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008) (citation
omitted). Accordingly, in the absence of a constitutional violation, the officers are
entitled to qualified immunity on the unlawful arrest claim.
Defendants also assert that the district court erroneously denied them qualified
immunity on Garang’s claim that they violated his rights by subjecting him to
continued detention after video surveillance demonstrated that Garang was not in
Graves’s apartment at the time of the attack. Defendants specifically assert that the
officers did not violate Garang’s constitutional rights because they did not have any
authority to make any decisions regarding Garang’s custody after they arrested him
and transferred him to the Story County Jail. In essence, defendants argue that they
are not the proper parties because they were not responsible for Garang’s continued
Although defendants couch their argument as one related to qualified
immunity, it implicates Article III standing concerns, which we are bound to address
before addressing the merits of a claim. Wong v. Wells Fargo Bank N.A., 789 F.3d
889, 895 (8th Cir. 2015). “To establish Article III jurisdiction, [Garang] must
demonstrate standing to assert this claim against these defendants.” Duit Constr.
Co. v. Bennett, 796 F.3d 938, 940 (8th Cir. 2015). “Standing requires a plaintiff:
(1) to have suffered a concrete injury in fact, (2) to prove a causal connection
between the injury and the defendant’s allegedly unlawful conduct, and (3) to show
the injury is capable of redressability through a favorable ruling from the courts.”
Wong, 789 F.3d at 895.
Garang cannot satisfy the causation element of standing because it is clear
from the record that he “has sued the wrong parties.” Duit Constr. Co., 796 F.3d at
941. Under Iowa law, dismissal of a criminal prosecution can be achieved only by
an action of the prosecuting attorney or the district court itself:
The court, upon its own motion or the application of the prosecuting
attorney, in the furtherance of justice, may order the dismissal of any
pending criminal prosecution, the reasons therefor being stated in the
order and entered of record, and no such prosecution shall be
discontinued or abandoned in any other manner.
Iowa R. Crim. P. 2.33(1). And the prosecuting attorney who was assigned to
Garang’s case affirmed that he was responsible for any decision regarding Garang’s
case, specifically stating in an affidavit in support of defendants’ motion for
summary judgment that he made the decision not to seek dismissal of the charges
against Garang after obtaining the surveillance video from the apartment and that
this decision was made without the involvement of the Ames Police Department.
The prosecuting attorney also specifically stated that all decisions regarding how to
proceed with charges, including the ultimate decision to seek dismissal with
prejudice of Garang’s charges after Bijiek’s proffer, were made by the Story County
Attorney’s Office and that the Ames Police Department and its employees have no
authority over the handling of criminal charges or whether suspects should be
released from jail. Given this record evidence, Garang lacks standing to pursue this
claim against all the defendants. See Duit Constr. Co., 796 F.3d at 941 (“When the
injury alleged is the result of actions by some third party, not the defendant[s], the
plaintiff cannot satisfy the causation element of the standing inquiry.” (citation
omitted)). Garang’s unlawful detention claim is therefore not within the district
court’s Article III jurisdiction, and it must be dismissed.
Given the foregoing, the district court erred in denying defendants’ motion for
summary judgment on Garang’s unlawful arrest claim. And because this ruling was
premised on legal errors, the district court also abused its discretion in denying the
motion for reconsideration. Further, because we conclude that the officers are
entitled to qualified immunity on the unlawful arrest claim, we need not address
Officers Hochberger, Fischer, and Yetmar’s alternative argument that they are
entitled to qualified immunity.

We note that Officers Hochberger, Fischer, and Yetmar’s argument that they
were not involved in Garang’s arrest does not implicate the same standing
considerations as Garang’s unlawful detention claim because the district court found
a factual dispute regarding their involvement in the decision to arrest Garang,
whereas, with respect to the unlawful detention claim, the officers lacked authority
as a matter of law to make any decision regarding Garang’s continued detention after
his arrest.

Outcome: For the foregoing reasons, we reverse and remand to the district court for
further proceedings consistent with this opinion.

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