Twyla Mcelree v. City of Cedar Rapids

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

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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.

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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.

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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.

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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

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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

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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

For the foregoing reasons, we affirm