Alexys Sherry Parker v. Officer Adam Chard

United States Court of Appeals
For the Eighth Circuit
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No. 14-1593
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Alexys Sherry Parker
lllllllllllllllllllll Plaintiff - Appellee
v.
Officer Adam Chard; Officer Robert Illetschko, in their individual and official capacities
lllllllllllllllllllll Defendants - Appellants
City of Minneapolis
lllllllllllllllllllll Defendant
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: November 13, 2014
Filed: January 29, 2015
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Before MURPHY, MELLOY, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Alexys Sherry Parker sued Officers Adam Chard and Robert Illetschko and the
City of Minneapolis under 42 U.S.C. § 1983 and state law for alleged civil rights
violations. The district court denied the officers qualified immunity on one § 1983
claim, finding that they violated the Fourth Amendment by seizing Parker without
reasonable suspicion. The officers appeal. Having jurisdiction over orders denying
qualified immunity and related grants of summary judgment, see Sherbrooke v. City
of Pelican Rapids, 513 F.3d 809, 813 (8th Cir. 2008), this court reverses and remands.
I.
On October 26, 2011, Chard and Illetschko were dispatched to investigate
shoplifting allegations in Uptown Minneapolis. Before leaving the police station,
they were informed that a “couple of black females” had reportedly stolen
merchandise from Urban Outfitters, and that an employee from the nearby
Heartbreaker store had called to report suspected shoplifters. Driving to Uptown,
Illetschko called Heartbreaker. The manager said that a customer had approached
another Heartbreaker employee and pointed out several African American females
inside the store. The customer claimed to have seen them running out of Victoria’s
Secret. Illetschko called Victoria’s Secret. An employee there confirmed that a
“group of black females” had “very recently” run out of the store, but could not
confirm whether any merchandise was stolen.
When the officers arrived at Heartbreaker, the manager pointed to Parker and
her two friends as the African American females identified by the customer. The
manager reported that the customer thought that the group’s running from Victoria’s
Secret was suspicious and indicated shoplifting. The customer did not leave a name
or contact (and apparently left Heartbreaker before the officers arrived). The manager
did not suspect Parker or her friends of stealing from Heartbreaker. The officers
observed Parker and her friends inside Heartbreaker and as they left the store. The
officers noted no suspicious activity and did not believe they had stolen from
Heartbreaker.
Illetschko followed Parker and her friends on foot while Chard got the squad
car. Parker and her friends began to leave in Parker’s car. Chard pulled his squad car
in front of Parker’s car and turned on the emergency lights at about 5:34 p.m. Chard,
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approaching the car, asked if they had been to Victoria’s Secret. Parker and her
friends said they had not. Chard told them that the officers had received a report from
someone who believed they had shoplifted at Victoria’s Secret. Illetschko also
approached the car. Parker consented to a search of her shopping bags, which were
visible in the car. Searching the bags, Chard believed everything was in order and
nothing appeared stolen. He asked Parker for her driver’s license and ran it inside his
squad car at about 5:39 p.m. Returning Parker’s license, Chard told her she was free
to leave. Parker requested he speak to her father on her cell phone. Parker first
relayed questions to Chard and ultimately handed him the phone. This conversation
lasted about five to ten minutes. The officers then went to Victoria’s Secret to review
the security video and continue the shoplifting investigation.
II.
This court reviews de novo the denial of qualified immunity on summary
judgment. Meehan v. Thompson, 763 F.3d 936, 940 (8th Cir. 2014). Qualified
immunity shields public officials performing discretionary functions from liability for
conduct that “‘does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Id., quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). It “gives government officials breathing room
to make reasonable but mistaken judgments about open legal questions” and “protects
all but the plainly incompetent or those who knowingly violate the law.” Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2085 (2011) (internal quotation marks omitted). To
overcome qualified immunity, a plaintiff must demonstrate that (1) there was a
deprivation of a constitutional or statutory right, and (2) the right was clearly
established at the time of the deprivation. Meehan, 763 F.3d at 940.
Parker asserts that the officers violated her rights by seizing her without
reasonable suspicion, based only on an unreliable and uncorroborated anonymous tip.
See U.S. Const. amend. IV (prohibiting unreasonable search and seizure by
government officials); Terry v. Ohio, 392 U.S. 1, 30 (1968) (holding brief
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investigatory stop is permissible if supported by reasonable suspicion). The officers
do not dispute they seized Parker, but argue she cannot overcome qualified immunity.
Even assuming that the officers violated Parker’s Fourth Amendment rights by
seizing her without reasonable suspicion, the issue remains whether those rights were
clearly established at the time of the seizure. See Pearson v. Callahan, 555 U.S. 223,
236 (2009) (noting courts may address either qualified immunity prong first). “For
a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.’”
Meehan, 763 F.3d at 940 (alteration in original), quoting Anderson v. Creighton, 483
U.S. 635, 640 (1987). See also Malley v. Briggs, 475 U.S. 335, 341 (1986) (“[I]f
officers of reasonable competence could disagree on [the] issue, immunity should be
recognized.”). Clearly established law is not defined “at a high level of generality,
since doing so avoids the crucial question whether the official acted reasonably in the
particular circumstances that he or she faced.” Plumhoff v. Rickard, 134 S. Ct. 2012,
2023 (2014) (internal quotation marks and citation omitted). It is unnecessary to have
“a case directly on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” al-Kidd, 131 S. Ct. at 2083.
Officers may conduct an investigatory Terry stop when, based on the totality of
the circumstances, they have “a particularized and objective basis for suspecting the
particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411,
417-18 (1981). For an anonymous tip to give rise to such suspicion, it must be
“suitably corroborated” and exhibit “‘sufficient indicia of reliability.’” Florida v. J.L.,
529 U.S. 266, 270 (2000), quoting Alabama v. White, 496 U.S. 325, 327 (1990). To
demonstrate the reliability of tipsters alleging possession of concealed drugs or guns,
J.L. and White require corroboration of the tips’ predictive elements. Compare J.L.,
529 U.S. at 271-72 (finding no reasonable suspicion when police corroborated only
the tipster’s description of suspect’s visual attributes and location, noting tipster
“neither explained how he knew about the gun nor supplied any basis for believing he
had inside information” of concealed criminal activity), with White, 496 U.S. at 332(finding reasonable suspicion after police corroborated multiple predictive elements
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of tip, indicating tipster’s inside knowledge about defendant). The Court did not hold
that corroboration of predictive elements is the exclusive measure of a tip’s reliability.
See United States v. Wheat, 278 F.3d 722, 731, 732 & n.8, 734 (8th Cir. 2001) (noting
J.L. and White “did not create a rule requiring that a tip predict future action” and
setting lower standard of corroboration for tips alleging drunk or erratic driving).
In this case, the anonymous customer claimed to eyewitness a group of African
American females running out of a store. Unlike the tip in White, this tip does not
contain any predictive elements that the police could use to test the tipster’s reliability.
However, the basis of the customer’s knowledge here—firsthand observation of
readily visible activity—is clear. The customer does not need inside information to
observe suspicious running. White, focusing on allegations of concealed drug
possession, does not address the reliability of this type of eyewitness tip.
J.L., too, does not discuss eyewitness tips. In J.L., the officers had only “the
bare report of an unknown, unaccountable informant” that someone had a concealed
weapon. J.L., 529 U.S. at 271. For those circumstances, J.L., like White, addresses
whether the tipster had inside information about the defendant or the concealed
criminal activity. See id. at 271-72. Here, the tipster’s basis of knowledge was not
inside information but rather the observation of visible activity. And Chard and
Illetschko had another reason to credit the anonymous tip. Unlike the officers in J.L.,
they corroborated the part of the tip alleging suspicious activity—that is, they
confirmed with Victoria’s Secret that a group of black females had recently run out of
the store. True, this corroboration was minimal: The officers did not corroborate
anything but gender and race, or any illegal activity. But the officers confirmed more
than “a subject’s readily observable location and appearance.” Id. at 272.
Parker points to this court’s Wheat case addressing the reliability of eyewitness
tips, but the tip here does not report drunk driving or a situation of imminent danger.
Wheat, 278 F.3d at 729, 732 & n.8. See generally Carroll v. Carman, 135 S. Ct. 348,
350 (2014) (assuming circuit precedent may clearly establish law). Additionally,
Wheat—like White and J.L.—addresses only a stand-alone tip. These cases do not
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clearly establish how to balance anonymous tips with other circumstances: for
example, here, the officers’ awareness of a recent, nearby shoplifting by individuals
matching the race and gender of Parker and her friends, and their knowledge of
shoplifting tactics, compared with their personal observation that Parker was not
acting suspiciously.
In a decision after the seizure here, the Supreme Court in Navarette analyzes
indicia of reliability for eyewitness tips. Navarette v. California, 134 S. Ct. 1683,
1688, 1689-90, 1692 (2014) (“As in [White], the indicia of the 911 caller’s reliability
here are stronger than those in J.L., where we held that a bare-bones tip was unreliable.
Although the indicia present here are different from those we found sufficient in
White, there is more than one way to demonstrate [reasonable suspicion].” (internal
citation omitted)). Navarette, however, cannot clearly establish the law for this case.
See Shekleton v. Eichenberger, 677 F.3d 361, 366 (8th Cir. 2012) (“When
determining whether an action was a clearly established constitutional violation, we
look to the state of the law at the time of the incident.”).
Based on White and J.L., it was not clearly established that Chard and
Illetschko—having corroborated the running asserted in the eyewitness tip, and
knowing shoplifting recently occurred—could not reasonably suspect Parker of
shoplifting. “[W]hether or not the constitutional rule applied by the court below was
correct, it was not beyond debate.” Carroll, 135 S. Ct. at 352 (internal quotation
marks omitted). The officers are entitled to qualified immunity.1
1
Given this court’s assumption that Parker’s seizure was unconstitutional, it is
unnecessary to address her contention that, if the initial seizure were constitutional,
the officers unlawfully exceeded the scope of the Terry stop by briefly checking her
identification after concluding she was innocent of shoplifting. See Great Atl. Ins.
Co. v. Liberty Mut. Ins. Co., 773 F.2d 976, 981 (8th Cir. 1985) (noting it is
unnecessary to address argument in the alternative in light of disposition of other
issue). Parker does not argue—and cites no authority that clearly establishes—that
a request for identification during an unlawful detention should be treated as an
independent Fourth Amendment violation.
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*******
The judgment is reversed, and the case remanded for further proceedings
consistent with this opinion.
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