Lead Opinion
Officers Nathan Kaiser, Shane Jensen, and Tobias Hite of the City of Lincoln Police Department (LPD) conducted a high-risk traffic stop of Leroy Duffie. Duf-fie sued the City of Lincoln and the three police officers involved in the traffic stop (collectively “defendants”) pursuant to 42 U.S.C. § 1983 for depriving him of his constitutional rights. Duffie argues that the defendants (1) conducted a high-risk traffic stop without reasonable suspicion, (2) used excessive force in conducting the stop, (3) searched his van without consent, and (4) placed him in danger of physical harm without due process. The defendants claimed qualified immunity and .moved for summary judgment on all claims. The district court granted the defendants’ motion. We reverse and remand for further proceedings. ^
I. Background
Around 9:20 p.m. on the evening- of September 2, 2011, two clerks workiiig at a northeast Lincoln, Nebraska convenience store called LPD and reported an encounter with a young man. The LPD’s inicident report noted that the young mañ — described by the clerks as black, in hisi late teens or early twenties with short black hair, and wearing a black shirt and blue jeans — acted strangely while making a purchase. He did not respond to one of .the clerk’s general questions, and the other clerk noted that the young man “kept starring [sic] at the cash register.” After the young man left the store, one of the clerks took the garbage outside and noticed the same young man sitting in the passenger seat of an “early 90s Astro style van” described by the clerk as “maroon with white stripes down the side.” As fhe^clerk was returning to the store, the young "man “held up a hand gun and acted like he was blowing smoke from the barrel:” The clerk thought that the handgun resembled a silver Beretta. The report classified the young man as a “35222 — SUSPICIOUS PERSON.” The report also indicates that the young man was accompanied by anoth
When the 11:00 p.m. shift began, LPD briefed its officers entering duty of the incident. Around 12:45 a.m. on September 3, Officer Kaiser observed “an older maroon Chevrolet Astro Van (NE Plate #SNM794) with light colored stripes down the side” traveling on the roadway just ahead of his cruiser. The van had a handicapped parking placard hanging from the rearview mirror, but there is no indication that Officer Kaiser noticed it. Officer Kaiser believed that the van he observed could be the van from the incident report. He attempted to view the occupants, but his visibility was limited due to the low light, his positioning, and the brevity
Concerned that an occupant of the van may have a firearm, Officer Kaiser requested an additional officer to assist him in making a high-risk traffic stop. Officer Kaiser and Officer Jensen initiated the high-risk traffic stop, positioning their cruisers behind the van.
The driver, later identified as Duffie, is a double amputee with two prosthetic legs. He could not safely exit the vehicle in the manner that the officers commanded. The fall caused one of Duffie’s prostheses to become detached. Duffie’s prosthetic legs were ill-fitting due to weight loss from cancer treatments. Duffie remained on the ground for the remainder of the traffic stop. After finding no one else in the van, the officers handcuffed Duffie, still face down on the pavement, searched him for a weapon, and then removed the handcuffs after five to ten minutes at Duffie’s request. The officers told Duffie that they stopped him because his vehicle matched the description of the van from the incident at the convenience store. By this point, the officers knew that Duffie did not match the description of the young man at the convenience store. Duffie was not a young man in a tank top with braids; at the time, he was a bald, 58 year-old double-amputee.
The defendants moved for summary judgment on the basis of qualified immunity. In ruling on the defendants’ motion, the district court noted that Duffie’s complaint failed to adequately allege which officers were responsible for the claimed constitutional violations. Thus, Duffie’s complaint did not state a claim under § 1983. See Ashcroft v. Iqbal,
II. Discussion
Duffie alleges that the defendants deprived him of his rights under the Fourth and Fourteenth Amendments. He argues that the defendants deprived him of his constitutional rights by (1) conducting a high-risk traffic stop without reasonable suspicion, (2) using excessive force in conducting the stop, (3) searching his van without consent, and (4) placing him in danger of physical harm without due process.
Although § 1983 makes no mention of qualified immunity, the common law roots of the doctrine are deep and were not discarded by § 1983’s enactment. See Pierson v. Ray,
Duffie sufficiently alleges a violation of his Fourth Amendment rights. He argues that the LPD officers did not have reasonable suspicion to stop him because they did not have reasonable suspicion to stop the young man from the convenience-store incident. The defendants insist that Duffie has waived this argument by not raising it below. Even if not waived, the defendants note that Duffie conceded that “the display of a handgun raises concerns about criminal conduct” and that he did not dispute that it was “important ... for LPD to respond” to the reported incident. The defendants agree with the district court that Officer Kaiser had reasonable suspicion to stop Duffie.
Before turning to the merits of Duffie’s claim, we first consider whether he has waived the argument. Generally, we do not consider arguments raised for the first time on appeal. See Mattson,
It is undisputed that Duffie has always contested the lawfulness of the high-risk traffic stop. Duffie’s brief in opposition to the defendants’ summary-judgment motion argued that a genuine issue of material fact existed precluding summary judgment over “whether the information contained in the report required these Officers to engage in a high-risk traffic stop.” The defendants argue that this is a different argument than the one that Duffie presents now. If Duffie’s argument below is construed very narrowly, it could be read to contest only the manner of the traffic stop rather than the fact of the traffic stop. We decline to construe Duffie’s argument so narrowly.
We consider Duffie’s argument in light of the full record below: Duffie’s complaint, the defendants’ briefs in support of their motion for summary judgment, Duffie’s brief in opposition to the motion for summary judgment, and the district court’s order on the motion for summary judgment. In Duffie’s complaint, he alleges that “the Officers seized Duffie without probable cause or reasonable suspicion.” The defendants’ brief supporting their motion for summary judgment argues that “the Officers had probable cause and reasonable suspicion to execute the traffic stop,” and therefore, “[Duffie’s] claims for unlawful seizure in violation of his Fourth Amendment rights cannot succeed.” The defendants’ reply brief lays out that “[Duf-fie] questions several parts of the traffic stop that will be addressed by Defendants in turn, namely: (1) the stop of the van, (2) the detention of [Duffie] by the Officers, and (3) the search of the Van.” The defendants go on to argue that “[a]ny seizure or detention of [Duffie] ... was based on probable cause and reasonable suspicion based on the gun incident report earlier that evening by an individual in a matching van.” As already mentioned, Duffie’s brief in opposition to the summary-judgment motion disputed “whether the information contained in the report required [the] Offi
We now address whether the officers violated Duffie’s clearly established constitutional right when they initiated the high-risk traffic stop. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ” U.S. Const, amend. IV. An officer may initiate an investigatory stop of a vehicle if there is “reasonable suspicion that criminal activity is afoot.” United States v. Walker,
Officer Kaiser relied on an incident report that did not contain information sufficient to create reasonable suspicion that Duffie had already, was, or was about to commit a crime. See United States v. Hensley,
The incident report also did not adequately make out a case that the young man committed assault. See Neb. Rev. Stat. § 28-310 (2016) (defining third degree assault as “[t]hreaten[ing] another in a menacing manner”). The young man did not display hostile or menacing conduct toward the clerks in the store. The clerks thought that the young man acted strangely, but they did not describe anything threatening. The clerk who saw the young man with the gun acting as though he was blowing smoke from the barrel did not assert that the action was directed at him. The incident report reflects that the clerk was returning to the store when he saw the young man hold up the handgun. The clerk did not report that the young man looked at him, pointed the gun at him, or in any other way threatened him. The officers’ reports reflect that they were responding to the display of a weapon, not a threat against the clerk.
Whatever suspicion Officer Kaiser possessed decreased when placed in the context of his stop of Duffle. After spotting the van, Officer Kaiser made an effort to see the driver, ostensibly to compare the driver with the persons associated with the convenience-store incident. Darkness limited Officer Kaiser’s vision; nonetheless, an objectively reasonable police officer would not mistake a 58-year-old bald man for a young adult with hair. Officers may not turn a blind eye to facts that undermine reasonable suspicion. See Ahlers v. Schebil,
The district court erred in holding that the incident report from several hours earlier justified Officer Kaiser’s seizure of Duffle. On this record, Officer Kaiser is not entitled to qualified immunity. The written reports of Officers Jensen and Hite establish that they did not reasonably rely on any information from Officer Kaiser or dispatch. See Hensley,
III. Conclusion
Accordingly, we reverse the district court’s grant of qualified immunity to Offi
Notes
. Officer Kaiser estimated that he was able to look at the driver for no more than two to three seconds.
. At some point during the stop, Officer Hite also arrived to assist with the high-risk stop.
. The district court's order granted the defendants’ motion for summary judgment “because these defendants are entitled to qualified immunity as to [Duffie’s] 42 U.S.C. § 1983 claims.” Although the district court noted that Duffie’s complaint failed to "establish which defendant officers were personally involved in which alleged constitutional violations,” it did not grant the defendants’ summary judgment motion on that basis. Accordingly, our review is limited to qualified immunity.
. Duffie also challenges LPD’s policy on high-risk traffic stops as facially unconstitutional. Duffie did not raise this argument before the district court. Accordingly, we will not consider it on appeal. See Action Tapes, Inc. v. Mattson,
. The defendants do not attempt to explain what crime the young man was suspected of committing. Instead, they argue that Officer Kaiser had reasonable suspicion based on the incident report because a handgun was displayed and the "clerks were concerned enough to report the incident to LPD.” The officers' written reports all describe the conduct of the young man as displaying a weapon.
. Given our conclusion here, we need not address Duffie’s remaining claims against the officers in their individual capacities.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s reversal of the district court. The information reported to the Lincoln Police Department, combined with the instructions Officer Kaiser received at the outset of his'shift and his own observations, constituted “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez,
At 9:22 p.m. on November 2, 2011, Nicholas Miller, a clerk at a Lincoln, Nebraska convenience store telephoned the Lincoln Police Department and made the following report:
Miller, clerk at Kwik Shop, stated a B/M came into the store and purchased an item. Miller stated he and Nomenyo, another clerk, asked the B/M general questions, and he wouldn’t respond. Miller stated the B/M kept starring [sic] at the cash register. Nomenyo stated when he took out the garbage, he noticed the same B/M sitting in the passenger seat of a early 90s Astro style van in front of the store. Nomenyo stated the van was maroon with white stripes down the side. Nomenyo stated as he walked back into the store, the passenger held up a hand gun and acted like he was blowing smoke from the barrel. Nomenyo stated the gun looked like a silver Baretta. Miller and Nomenyo stated they did not get a license plate or see a direction of travel. The passenger was described as a B/M, late teen to early 20s, 6’0, 150 to 160 lbs., with short black hair, and brown eyes, wearing a black shirt and blue jeans. The driver was described as a B/M, late teens to early 20s, with braids or short hair, wearing a white tank top. Miller will contact officer if they have surveillance video from inside the store.
(J.A. at 134.) Later that night, at the beginning of the Lincoln Police Department’s 11:00 p.m. shift, Officer Kaiser and other officers were “informed of a suspicious person call occurring at the Kwik Shop (2811 N 48th St.) just a few hours prior to lineup, where the passenger of a maroon early 90s Astro van with white stripes held up a hand gun and acted like he was blowing smoke from the barrel.” (J.A. at 135.) Officers were instructed to be on the look out for this vehicle. “The collective knowledge of law enforcement officers conducting an investigation is sufficient to provide reasonable suspicion,” and that collective knowledge may “be imputed to the individual officer who initiated the traffic stop when there is some communication between the officers.” United States v. Thompson,
Although law enforcement officers may not lawfully conduct a Terry stop based on a mere hunch, “the likelihood of criminal activity need not rise to the level required for probable cause.” United States v. Jones,
The majority further asserts, “The incident report did not contain information sufficient to create a reasonable suspicion of criminal activity.” Citing the Nebraska third-degree assault statute and Nebraska’s open-carry law, the majority reasons that the young man acted within the law because the clerk who saw the young man did not claim that the young man looked at him, pointed the gun at him, or in any other way threatened him. Nevertheless, Nebraska courts have not interpreted Nebraska’s terroristic threats statute so narrowly as to require that a person point a gun directly at another person to constitute a threat. See State v. Curlile,
The majority’s reliance on Florida v. JL,
“Reasonable suspicion depends on ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Id. at 1690 (quoting Ornelas v. United States,
Accordingly, I would hold that the officers are entitled to qualified immunity with respect to Duffle’s claim arising from the stop of his vehicle, and I would affirm the district court with respect to Duffle’s remaining claims for the reasons set forth in the District Court’s opinion.