Robbins v. City of Des Moines

984 F.3d 673

Daniel Thomas ROBBINS, Plaintiff - Appellant

v.CITY OF DES MOINES; Brad Youngblut, Des Moines Police Detective; Joseph Leo, Des Moines Police Lieutenant; Christopher Curtis, Des Moines Police Sergeant, Defendants - Appellees

American Civil Liberties Union of Iowa Foundation, Amicus on Behalf of Appellant

No. 19-2492

United States Court of Appeals, Eighth Circuit.

Submitted: September 23, 2020

Filed: January 5, 2021

Rehearing and Rehearing En Banc Denied February 12, 2021

Counsel who presented argument on behalf of the appellant was Gary Dean Dickey, Jr., of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Gary Dean Dickey, Jr., of Des Moines, IA., Glen S. Downey, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee was Michelle Mackel-Wiederanders, of Des Moines, IA. The following attorney(s) appeared on the appellee brief; Michelle Mackel-Wiederanders, of Des Moines, IA.

The following attorney(s) appeared on the amicus brief of American Civil Liberties Union of Iowa Foundation; Rita N Bettis Austen, of Des Moines, IA., and law student Nathan Leys, of Des Moines, IA.

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Daniel Robbins was recording illegally parked vehicles from a public sidewalk adjacent to the Des Moines Police Station when officers approached him and asked him what he was doing. Robbins was uncooperative, and the officers temporarily seized him and his camera and cell phone. Robbins sued the City of Des Moines (the "City") and three of its officers ("defendant officers") in their individual and official capacities (collectively, "defendants") under 42 U.S.C. § 1983, alleging violations of his First, Fourth, and Fourteenth Amendment rights. The district court granted summary judgment in favor of the defendants on all claims. Robbins appeals. We affirm in part and reverse in part.

I. BACKGROUND

During the mid-morning hours of May 10, 2018, defendant Detective Brad Youngblut left the police station to get into his car. While walking towards his car, Detective Youngblut observed Robbins recording vehicles as well as officers and civilian employees entering and leaving the police station. Because he was aware that vehicles had recently been stolen from and vandalized in that area, and because he was aware of a previous incident in which two officers had been murdered by a person with a history of filming the police, Detective Youngblut approached Robbins to make inquiry. At about the same time, defendants Lieutenant Joseph Leo and Sergeant Christopher Curtis, along with several other officers, approached Robbins as well. At this point, Robbins was on the sidewalk surrounded by law enforcement officers.

Robbins refused to identify himself or respond to law enforcement inquiries, explaining "I'm taking pictures because it's perfectly legal for me to do so." Lieutenant Leo initiated physical contact when he lifted the back of Robbins's shirt, grabbed his forearm and placed it above his head, and patted him down. Robbins repeatedly asked what about his conduct was illegal, and the officers responded that while he was not doing anything illegal, he was suspicious. Eventually, the officers ordered Robbins to leave, and he refused. The officers then told Robbins he was loitering, and, if he did not identify himself, he would be arrested. Detective Youngblut suggested that the officers "just make a suspicious activity case ... [and] confiscate the camera until we have a reason for what we're doing."

At this point, Robbins asked, "Do I have an arrest?" and Detective Youngblut said, "Yes." Robbins asked, "Am I detained at this point?" and Detective Youngblut responded, "Yes, you are now at this point." While officers put Robbins's hands on the bed of a pickup and patted him down, they again asked for identification, which he said he did not have. When asked his name, Robbins responded with "John Doe" before providing his name under protest.

The officers seized Robbins's cell phone and camera. Detective Youngblut photographed Robbins for his file and then told him that he was free to go. The encounter lasted approximately twelve minutes. The cell phone and camera were retained by law enforcement until May 22, 2018, when Detective Youngblut authorized the return of the property after Robbins's counsel demanded the return of the property.

Robbins filed suit on September 5, 2018, asserting three constitutional torts: In Count I, Robbins asserts that he was unlawfully detained, seized and searched, and his property was unlawfully seized in retaliation for engaging in protected First Amendment activity – that is, observing and recording public police activities. In Count II, Robbins claims that he was falsely detained, arrested, and his property was unlawfully seized in contravention of the Fourth Amendment. In Count III, Robbins maintains that the City failed to train officers on the First Amendment right to observe and record public police activities causing him to suffer an unlawful retaliatory detention, seizure, and search. The district court granted summary judgment in favor of the defendants on the first two counts on the basis of qualified immunity and on the third count because Robbins failed to show a constitutional violation or a "policy of inaction."

II. DISCUSSION

We consider Counts I and II first.¹ "We review de novo the district court's grant of summary judgment based on qualified immunity."

Duffie v. City of Lincoln, 834 F.3d 877, 881 (8th Cir. 2016) (quoting LaCross v. City of Duluth, 713 F.3d 1155, 1157 (8th Cir. 2013) ). We "view[ ] the record in the light most favorable to the nonmoving party and draw[ ] all reasonable inferences in that party's favor." Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011).

Government officials are entitled to qualified immunity unless their conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known. Gilmore v. City of Minneapolis, 837 F.3d 827, 832 (8th Cir. 2016). To overcome a claim of qualified immunity, Robbins must demonstrate (1) a deprivation of a constitutional right, and (2) that the right was clearly established at the time of the deprivation. Id. We may address either inquiry first. See Duffie, 834 F.3d at 882.

A. Count I: First Amendment Retaliation

Because Robbins has not shown a deprivation of a clearly established right, the defendant officers are entitled to qualified immunity. See Gilmore, 837 F.3d at 832.

Robbins asserts the defendant officers reasonably should have known that the First Amendment protected his recording activity, verbal challenge of the police, and refusal to leave a public place. Assuming Robbins had a constitutionally protected right to record as he was doing in this case, that right is not absolute. Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (recognizing the right to record police may be subject to "reasonable time, place, and manner restrictions"); Chestnut v. Wallace, 947 F.3d 1085, 1096 (8th Cir. 2020) (Gruender, J., dissenting) (noting in the context of a citizen's right to watch and record the police that "the fact that a certain right exists does not mean it is without limits, nor does it necessarily indicate that it is obvious how that right applies to a certain set of facts").

Here, law enforcement officers observed Robbins recording both vehicles near the police station and officers and civilian employees entering and leaving the police station. The officers also possessed other significant information: they were aware of recent criminal activity involving cars parked in the area, and they were aware of a previous filming and stalking incident that escalated into the murder of two officers. Armed with this knowledge, Officer Youngblut approached Robbins and asked him what he was doing. Robbins was non-responsive, evasive, and confrontational. Officer Youngblut reasonably found Robbins's behavior suspicious.

Robbins’ behavior that went beyond any constitutionally protected recording activity when combined with the officers’ knowledge about vehicles being stolen and vandalized in the area and the previous filming that led to officers being murdered could cause an objectively reasonable person in the officers’ position to suspect Robbins was up to more than simply recording the police. Under these circumstances, we can neither say that the officers’ conduct was objectively unreasonable under clearly established law, nor in violation of the First Amendment.

Robbins's remaining arguments are too generalized to show a violation of a clearly established right. See Mullenix v. Luna, 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015). While the First Amendment "protects a significant amount of verbal criticism and challenge directed at police officers," City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), Robbins cannot rely on broad general allegations to show a deprivation of a clearly established right, see Littrell v. Franklin, 388 F.3d 578, 583 (8th Cir. 2004). The defendant officers are entitled to qualified immunity on the Count I claims.

B. Count II: The Fourth Amendment

On Count II, the district court concluded summary judgment was appropriate because "the officers had probable cause for the stop under the Fourth Amendment" and properly "seized [Robbins's] camera [and cell phone] under reasonable suspicion of criminal activity." We disagree. Robbins argues the defendant officers violated his right to be free from (1) a Terry ² stop unsupported by reasonable suspicion, (2) an arrest absent probable cause, and (3) seizure of his property without a warrant. We consider each assertion in turn.

1. The Stop

The defendant officers argue that Robbins was subjected to an investigatory stop. An investigatory stop is Fourth Amendment activity and must be based on a reasonable suspicion "that criminal activity may be afoot." United...