Ngong Garang v. City of Ames

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

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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.

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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

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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.

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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.

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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

2

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.

3

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.

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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.

II.

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).

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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.

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"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

omitted).

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

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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.

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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

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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

detention.

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

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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.

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4

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.

For the foregoing reasons, we reverse and remand to the district court for

further proceedings consistent with this opinion.