Opinion
No. C 98-1035 MJM
August 4, 1999
ORDER Introduction
This matter involves allegations by the plaintiff, Elizabeth Gaskins, of police misconduct by the defendants, the City of Dubuque ("the City") and Officers Bailey, Lembke, Sommer, and Ramirez (collectively, "the officers"). The matter comes now before the court on the defendants' motion for summary judgment, filed March 4, 1999 (Doc. #10), and supplemented May 14, 1999 (Doc. #24).
The City of Dubuque, along with three police officials, was dismissed from this matter by the court's order dated April 13, 1999. (Doc. #18). Gaskins has since amended her complaint, and now alleges the City is liable for the tort of abuse of process committed by its employees under Iowa Code § 613A.2. (Am. Compl. ¶¶ 5, 52.) The court will address more fully the claim against the City of Dubuque to the extent necessary below.
In her amended complaint, (Doc. #26), Gaskins alleges that the officers conducted an unreasonable search and seizure on October 19, 1996, when they searched a tavern where Gaskins worked without a warrant and arrested her for refusing to provide them with her home address. (Am. Compl. ¶¶ 35-41.) Gaskins further alleges the sole purpose of the illegal search and arrest was to harass her for innocent comments she made the previous night during an arrest at the tavern. (Am. Compl. ¶¶ 45, 49.) Gaskins makes claims for damages for unreasonable search and seizure and invasion of privacy under 42 U.S.C. § 1983 and abuse of process under state law.
After various concessions by the plaintiff, the primary issue before the court is whether the officers are entitled to summary judgment on the basis of qualified immunity. If so, Gaskins' claim under § 1983 fails as a matter of law, and the court need not address Gaskins' supplemental state law cause of action. See 28 U.S.C. § 1367(c)(3) (court may decline to exercise supplement jurisdiction); Ivy v. Kimbrough, 115 F.3d 550, 552-53 (8th Cir. 1997) (where federal claims are dismissed on a motion for summary judgment, pendent state law claims ordinarily should be dismissed without prejudice).
Factual Background
This matter involves allegations of police misconduct on two consecutive nights at the Idle Hour Tavern in Dubuque, Iowa, where Gaskins was working as the bartender. On October 18, 1996, Officer Ramirez was dispatched to the area outside the tavern. (Ramirez Aff. ¶ 2.) The time was around 1:30 a.m. (Gaskins Aff. ¶ 5.) Ramirez states that when he approached the area, he saw two men kicking and punching another man on the ground. (Ramirez Aff. ¶ 2.) When Ramirez activated his emergency lights, the two men fled into the tavern. ( Id.) Ramirez followed the two men into the tavern, yelling "stop" and directing them to place their hands in the air. (Ramirez Aff. ¶ 3; Gaskins Aff. ¶ 8.)
The court has provided numbers for the paragraphs in Gaskins' affidavit.
Gaskins and Ramirez give different versions of what happened next. Gaskins claims she innocently asked for information from Ramirez about the third man in the fight when he threatened to arrest her. (Gaskins Aff. ¶¶ 9-11.) Gaskins acknowledges that she then called Ramirez a "derelict." ( Id. ¶ 12.) Ramirez claims Gaskins was yelling at him to leave the property and ignored his repeated requests to be quiet and stop interfering. (Ramirez Aff. ¶¶ 4-5.) Ramirez states that before arresting the two men, he advised Gaskins "that if she continued to interfere she was going to be placed under arrest." ( Id.). Gaskins and Ramirez are the only two witnesses in the record to give their version of the events surrounding the arrest of the two men involved in the fight.
According to Gaskins, Ramirez ordered the two men to "stop [and] put your hands in the air or I will pepper spray you." (Gaskins Aff. ¶ 8.) After the two men, Bob Jones and Trent Willobee, raised their hands, Gaskins "walked over to the end of the bar and asked Ramirez, `Where is Dave?', referring to the third party involved in the fight and the individual I believed started the altercation." ( Id. ¶¶ 9-10, 20.) Ramirez replied, "Shut up or I will arrest you for interfering." ( Id. ¶ 11.) Gaskins responded, "Excuse me; you are not doing this investigation properly or rationally. You are being a derelict." ( Id. ¶ 12). Ramirez then arrested Jones and Willobee and escorted them out of the tavern. ( Id. ¶¶ 13-14). Gaskins does not identify the "Dave" about whom she says she was concerned.
According to Ramirez, he saw the two men run to the back of the tavern. (Ramirez Aff. ¶ 3). "While attempting to locate and detain the subjects, I was yelling out commands like `stop', identifying myself as a police officer, and asking the subjects to show their hands. I noticed blood on one of the subjects' clothing and was afraid he may have had a weapon." ( Id.).
A woman (later identified as Gaskins) "yelled at me while I was entering the tavern." (Ramirez Aff. ¶ 4.) Ramirez "advised [her] not to interfere with my arrest of the two subjects." ( Id.) Gaskins "ignored my requests to stay away and continued to interject and distract my attention by yelling "you are violating our rights," "I hope you know that this is private property" and "I can kick you out if I want." ( Id.) Ramirez then advised Gaskins "that if she continued to interfere she was going to be placed under arrest." ( Id.)
Ramirez states that with the assistance of an officer named Reimer, he then arrested the two men. While they were handcuffing the two men, Gaskins "continued to interject and requested that we leave the establishment." (Ramirez Aff. ¶ 5.) When he finished with the two men, Ramirez advised Gaskins that he "would return to get information for a tavern inspection report." ( Id.) Gaskins responded, "I'm not giving you anything." ( Id.).
Neither party has submitted affidavits from Officer Reimer (who Ramirez says assisted him in the arrest of the two men), the two men arrested (who Gaskins identifies as Bob Jones and Trent Willobee), or any of the bar patrons who may have been witnesses (including two bar patrons identified by Gaskins, Brian Williams and Terry Ott). Lieutenant Prine states that Ramirez told him he "was confronted by the bartender who began shouting at him and generally interfering with his ability to secure the arrest of the two subjects." (Prine Aff. ¶ 2). Officer Lembke states that Ramirez told him the officers "had a difficult time with the bartender at the Idle Hour tavern while conducting an arrest." (Lembke Aff. ¶ 3). These statements by Prine and Lembke appear to be subject to a hearsay objection, and thus the court will not consider them for purposes of ruling on the defendants' motion for summary judgment.
After Ramirez arrested the two men and escorted them out of the tavern, Gaskins claims she spoke with Officers Bailey and Lembke, who were "just inside of the tavern's entrance." (Gaskins Aff. ¶ 14.) She states that "Bailey and Lembke apologized for Ramirez, stating that they did not know why Ramirez was out of control." ( Id. ¶ 15.) She further claims that she provided her address and telephone number as requested by Bailey and Lembke. ( Id. ¶¶ 16-17.) In their affidavits, which were made before Gaskins' affidavit, neither Bailey nor Lembke addressed whether they were at the tavern on October 18, whether they apologized to Gaskins for Ramirez's conduct, or whether they obtained her address and telephone number.
On October 19, 1996, between 1:30 a.m. and 2:00 a.m., Ramirez, Bailey, Lembke, and Sommer returned to the tavern for the stated purpose of conducting a routine tavern inspection. (Gaskins Aff. ¶ 21.) Lt. Prine ordered the tavern inspection and told the officers that "if they were refused cooperation . . ., anyone refusing to cooperate should be placed under arrest[.]" (Prine Aff. ¶ 4.) Again, Gaskins and the officers have different versions of what happened next.
Gaskins claims that upon entering the tavern, the officers "immediately began opening up the drawers behind the bar, closets and other areas. The officers were being loud and purposefully disruptive" to such an extent that several patrons left. (Gaskins Aff. ¶¶ 22-23.) However, Sommer, Ramirez, and Bailey state that upon entering, Sommer properly informed Gaskins that they "were going to conduct a tavern inspection." (Sommer Aff. ¶ 3; Ramirez Aff. ¶ 7; Bailey Aff. ¶ 3). Lembke states that he "proceeded to the back of the bar, checking the restrooms and back rooms for underage persons or other violations," and that "Officer Klein proceeded to the tavern licenses and began to document information necessary for the inspection report." (Lembke Aff. ¶ 4.)
Both Ramirez and Lembke state that an officer named Klein also participated in the tavern inspection. (Lembke Aff. ¶¶ 4, 6; Ramirez Aff. ¶ 7.)
According to Gaskins, Ramirez then "began harassing me by demanding that I give him my home address." (Gaskins Aff. ¶ 24.) Gaskins replied that she had already given her address to the officers the night before, that Ramirez was harassing her, and that she would not give him the information again. ( Id. ¶¶ 25-26.) Upon Ramirez's request for further information, Gaskins asked the officers to produce a warrant and stated that she would not answer any further questions without her lawyer present. ( Id. ¶¶ 27-28.)
According to the officers, however, Gaskins complained first that the inspection was "harassment" and that the officers were "violating our rights." (Sommer Aff. ¶ 3; Ramirez Aff. ¶ 7; Bailey Aff. ¶ 3.) Gaskins asked to see a search warrant. (Sommer Aff. ¶ 3; Ramirez Aff. ¶ 7; Bailey Aff. ¶ 3.) Sommer attempted to explain that warrants were not required for tavern inspections under Iowa law and the city ordinance, but Gaskins insisted that the officers show her a warrant. (Sommer Aff. ¶ 3; Ramirez Aff. ¶ 7; Bailey Aff. ¶ 3.) None of the officers mention whether or not Gaskins invoked her right of counsel.
Bailey states after Gaskins asked to see a warrant, Ramirez asked her for "her name, address and date of birth," but Gaskins refused to provide her address and date of birth. (Bailey Aff. ¶ 4). According to Ramirez, he asked only for her "name and date of birth for our report, and she responded, `I don't think I have to give you anything.'" (Ramirez Aff. ¶ 7.) After this, Bailey advised her that her failure to cooperate could lead to her arrest and, when Gaskins "fail[ed] to provide the required information, [she] was placed under arrest for interference with official acts." (Bailey Aff. ¶ 5).
Gaskins acknowledges that she became "uncooperative," but only after the officers became "abusive," and she claims she was never "abusive to any of the officers." ( Id. ¶¶ 29-30.) Gaskins states that her "only uncooperative remark . . . was when I asserted my right to decline to answer questions without my counsel present." ( Id. ¶ 31.) According to Gaskins, after she asserted her right to counsel, all four of the officers continued to question her and warned her that she could be arrested for refusing to answer their questions. (Gaskins Aff. ¶ 34.) Gaskins claims that Lembke "cited a code section to me . . . in support of his position that the officers could question me in their criminal investigation outside of my lawyer's presence." ( Id.) After Gaskins re-asserted her right of counsel, Bailey placed her under arrest. ( Id. ¶¶ 35-36.)
Gaskins, who apparently was working alone, was allowed to call the tavern owners so they could close the tavern. (Gaskins Aff. ¶¶ 38-39; Sommer Aff. ¶ 4.)
Pursuant to standard operating procedures, Gaskins was transported to the law enforcement center wearing handcuffs. (Prine Aff. ¶ 6; Bailey Aff. ¶ 6.) At the center, Lt. Prine ordered the handcuffs removed. (Prine Aff. ¶ 6.) According to Lt. Prine, Gaskins "was agitated and threatening, and advised me several times that she was going to `sue everyone.'" ( Id. ¶ 7.) Because Gaskins did not provide a local address, she was detained overnight at the jail. ( Id. ¶¶ 9-10.) Gaskins alleges that she was ultimately terminated by her employer because of the arrest. (Am. Compl. ¶ 41). The defendants claim that the tavern owners told them Gaskins was fired for independent reasons. (Prine Aff. ¶ 13.)
Analysis I. 42 U.S.C. § 1983
In the motion for summary judgment, the officers contend they are entitled to qualified immunity. "[G]overnment officials performing discretionary functions are granted a qualified immunity and are 'shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Wilson v. Layne, 119 S. Ct. 1692, 1696 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "A court evaluating a claim of qualified immunity `must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation.'" Id. at 1697 (quoting Conn v. Gabbert, 119 S. Ct. 1292, 1295 (1999)). In deciding whether the defendants are entitled to summary judgment on the basis of qualified immunity, the court must view the facts in the light most favorable to the plaintiff. Burnham v. Ianni, 119 F.3d 668, 673 (8th Cir. 1997) (en banc).
In this case, Gaskins alleges the violation of three constitutional rights: the right to be secure against unreasonable searches, the right to be secure against unreasonable seizures, and the right to be free from police harassment. For each asserted right, the court will examine whether Gaskins alleges a constitutional violation and, if so, whether the right she claims was "clearly established" at the time of the incident. In this regard, the court is mindful that "`[c]learly established' for purposes of qualified immunity means that `[t]he contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right.'" Wilson, 119 S. Ct. at 1699 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). As the Supreme Court recently clarified, "the right
allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established." Id. at 1700.
A. Unreasonable Search
Gaskins' allegation of an unreasonable search, defined at the appropriate level of specificity, raises the issue of whether it is unconstitutional to conduct a warrantless search of a tavern. As an initial matter, the court questions whether Gaskins has standing to raise this matter. It is well-settled that employees may have a legitimate expectation of privacy in the work place, see Mancusi v. DeForte, 392 U.S. 364, 368-69 (1968), but an employee's expectation of privacy at the work place is significantly less than the employee would have at home. United States v. Anderson, 154 F.3d 1225, 1229 (10th Cir. 1998).In Martinez v. Nygaard, 831 F.2d 822, 826 (9th Cir. 1987), the Ninth Circuit held that the plaintiffs did not have standing to object to a "factory sweep" for illegal aliens because they did not have a legitimate expectation of privacy. As the court reasoned, "the workers had no private space in any part of the building, and no authority to exclude others. They had no possessory interest in the place searched or things seized, and no right to exclude others from the premises." Id. Similarly, the officers entered the tavern where Gaskins worked during public hours. There is no allegation that the officers searched any of Gaskins' personal belongings. In these circumstances, there is no genuine issue of fact about whether Gaskins had a legitimate expectation of privacy that was violated by the warrantless entry of the tavern. See also United States v. John Bernard Indus., Inc., 589 F.2d 1353, 1361-62 (8th Cir. 1979) (two employees did not have legitimate expectation of privacy in the office and records of a government supply store where other employees had access to the office and the records).
Even assuming that Gaskins had standing, the court nonetheless finds that the warrantless entry and search of the tavern was not unconstitutional. The defendants contend they conducted the search pursuant to Iowa Code § 123.30(1)(b), which provides that any liquor license holder must allow a police officer to "enter upon areas of the premises where alcoholic beverages are stored, served, or sold, without a warrant during business hours of the licensee or permittee to inspect for violations of this chapter or ordinances and regulations that cities and board of supervisors may adopt." The court concludes that this provision authorizes the type of administrative search which has been upheld under New York v. Burger, 482 U.S. 691 (1987), and Western States Cattle Co. Inc., 895 F.2d 438, 441-42 (8th Cir. 1990). There is no allegation that the search exceeded the scope permitted by § 123.30(1)(b). Under these circumstances, the warrantless entry and search of the tavern did not violate the Fourth Amendment, and certainly the officers are entitled to qualified immunity on Gaskins' claim of unreasonable search of the tavern.
B. Unreasonable Seizure
Gaskins next claims that the officers illegally arrested her without probable cause. Clearly, being arrested without probable cause would violate the Fourth Amendment, and the Eighth Circuit has squarely held that there is "a clearly established right under the Fourth Amendment not to be arrested unless there was probable cause for [the] arrest." Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir.), cert. denied, 117 S. Ct. 518 (1996); accord Goff v. Bise, 173 F.3d 1068, 1072 (8th Cir. 1999). Therefore, the primary question for this court is whether the officers had an objectively reasonable belief that there was probable cause for Gaskins' arrest. "An officer has probable cause to arrest a suspect without a warrant if the `facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.'" Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir. 1993).
In this case, the officers claim they had probable cause to arrest Gaskins for interfering with official acts under Iowa Code § 719.1, which provides that a person "who knowingly resists or obstructs anyone known by the person to be a peace officer . . . in the performance of any act which is within the scope of the lawful duty or authority of that officer . . . commits a serious misdemeanor." The difficulty with the defendants' position is that under Gaskins' version of events, the officers could not have had probable cause to believe she was obstructing their official actions. According to Gaskins, her only uncooperative act was to refuse to answer a question about her home address (which she claims she had already answered) without the presence of her lawyer. Under Gaskins' version of events, there is no other evidence which could constitute "obstruction" or otherwise have raised any suspicions by the officers. The court concludes that these facts do not constitute "probable cause" for a violation of Iowa Code
§ 719.1, and that the law was sufficiently clear at the time that no police officer would have reasonably believed that these facts provided "probable cause."
In 1984, the Iowa Court of Appeals held that a bar patron could not be convicted for obstructing official acts when he refused to present identification to police officers who were executing a search warrant. State v. Hauen, 361 N.W.2d 336, 340-41 (Iowa Ct.App. 1984). As the Iowa Court of Appeals explained, "This is not a country where an individual must present his or her green card and proper papers at the whim of a law officer, or face jail." Id.; see also State v. Hamilton, 356 N.W.2d 169, 174-75 (Wis. 1984) (refusal to provide identifying information does not constitute obstruction where defendant was not a suspect in the crime and officers were able to obtain information elsewhere). Gaskins claims she had already provided her name and address to two of the officers who were present during the search (i.e., Bailey and Lembke). Cf. City of Seattle v. Nave, 383 P.2d 491, 493 (Wash. 1963) (defendant who took his driver's license back from police officer and then refused to return it to police officer upon request did not unlawfully resist the officer where the police officer had already completed taking down the necessary information from the driver's license). Although Gaskins was a bartender, not a bar patron, the defendants have not cited any authority which shows that they were entitled to know the home address of a bartender. Therefore, the court concludes that under Gaskins' version of events, which this court must accept at this stage of the proceedings, Goff, 173 F.3d at 1072-73; Arnott, 995 F.2d at 124, qualified immunity will not bar Gaskins' claim of an illegal arrest in violation of the Fourth Amendment.
The defendants further argue, however, that Lembke should be granted summary judgment because there is no allegation of wrongdoing on his part. The court agrees that the evidence against Lembke is minimal. The only evidence connecting Lembke to the alleged constitutional violation is that (1) Lembke allegedly apologized for Ramirez's conduct on October 18 during the arrest of the two men; (2) Gaskins allegedly gave Lembke and Bailey her name and home address on October 18; (3) Lembke was part of the tavern inspection; and (4) Gaskins' conclusory allegation that all four officers "interrogated" her after she asked to speak with her lawyer. Gaskins does not allege that Lembke ever threatened her or actually arrested her. Although the evidence is minimal, the court concludes it is sufficient to survive summary judgment because of the allegations that Lembke had previously apologized for Ramirez's conduct and was given Gaskins' name and address the night before the tavern inspection. In such circumstances, Lembke should have known that arresting Gaskins solely for failing to give her home address was illegal.
The court questions, sua sponte, whether there is sufficient evidence of wrongdoing by Sommer to survive a summary judgment motion. The only evidence connecting Sommer to the alleged constitutional violation is that he was part of the tavern inspection and participated in the "interrogation" of Gaskins. However, because the defendants did not separately move for summary judgment on Sommer's behalf, the court will not grant summary judgment in his favor at this time.
C. Invasion of Privacy
Gaskins next claims that the officers invaded her privacy and harassed her. Specifically, Gaskins alleges that "Defendants conducted the search of the Idle Hour Tavern solely to harass Plaintiff." (Am. Compl. ¶ 44.) As an initial matter, it is difficult for the court to discern which constitutional provision Gaskins is relying on in asserting this claim. In her memorandum in opposition to summary judgment, Gaskins relies alternatively on the Fourth Amendment right against unreasonable searches and seizure, the Fifth Amendment right to silence, and the Sixth Amendment right of counsel. (Gaskins Br. at 12, 15.) It is clear that Gaskins' allegations do not rise to the level of a substantive due process violation. Cf. Rogers v. City of Little Rock, 152 F.3d 790, 795-97 (8th Cir. 1998) (officer violated substantive due process rights of plaintiff under § 1983 when he coerced her into nonconsensual sex after stopping her for traffic violation).Whatever the constitutional source of the right against police harassment, it is clear that the alleged harassment in this case — independent of the allegedly unlawful arrest — is insufficient to constitute a constitutional violation. The Eighth Circuit has stated that "`[f]ear or emotional injury which results solely from verbal harassment or idle threats is generally not sufficient to constitute an invasion of an identified liberty interest.'" King v. Olmstead County, 117 F.3d 1065, 1067 (8th Cir. 1997) (quoting Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991)). Aside from the unlawful arrest, none of Gaskins' other allegations are anything more than verbal harassment or idle threats.
The case on which Gaskins relies, Angola v. Civilleti, 666 F.2d 1 (2d Cir. 1981), is readily distinguishable. In Angola, the plaintiff alleged that the law enforcement officers "forced" their way into her apartment and "terrorized" her son, threatened to damage her career, threatened her relatives, slashed her automobile tires, and broke into a friend's apartment in an effort to force her cooperation in finding an escaped inmate. Id. at 2. The Second Circuit held that these allegations stated a cause of action. Id. at 3-4. Even if the officers in this case conducted the tavern inspection in order to harass Gaskins, as Gaskins alleges, these allegations fall far short of the terror and threats at issue in Angola. Accordingly, the court grants summary judgment in the defendants' favor on Gaskins' claim of invasion of privacy and police harassment.
II. Abuse of Process
Finally, Gaskins claims that the defendants committed the tort of abuse of process under state law. "The tort of abuse of process is 'the use of legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it was not designed.'" Fuller v. Local Union No. 106, 567 N.W.2d 419, 421 (Iowa 1997) (quoting Palmer v. Tandem Mgmt. Servs., Inc., 505 N.W.2d 813, 817 (Iowa 1993)). "The three elements of an abuse-of-process claim are: (1) the use of a legal process; (2) its use in an improper or unauthorized manner; and (3) the plaintiff suffered damages as a result of the abuse." Id. at 421-22. In Fuller, the Iowa Supreme Court held that a false or reckless report of criminal activity to police did not constitute "legal process." Id. at 422. The court reasoned that the tort of abuse of process requires "`that the judicial process must in some manner be involved.'" Id. (quoting W. Page Keaton et al., Prosser and Keaton on the Law of Torts § 121, at 898 (5th ed. 1984)).
In this case, the court concludes that the defendants are entitled to summary judgment on Gaskins' claim of abuse of process. As in Fuller, the tort of abuse of process is not applicable in this case because the defendants did not invoke the use of judicial process. Gaskins has not cited any authority that law enforcement officers can be liable for abuse of process when conducting a warrantless search or arrest. Further, Gaskins has not specified the officers' wrongful collateral purpose, see Washington v. Drug Enforcement Admin., 1999 WL 529405, at *5 (8th Cir. July 26, 1999) (applying Missouri law), nor her damages independent of the alleged unconstitutional arrest. For these reasons, the court will grant summary judgment to the defendants on Gaskins' abuse-of-process claim. Because the court is granting summary judgment on Gaskins' abuse-of-process claim on the merits, the court need not address Gaskins' argument for vicarious liability by the defendant City of Dubuque.
ORDER
For the foregoing reasons, the defendants' motion for summary judgment (Doc. #10) is denied in part and granted in part. The motion is denied as to the plaintiff's claim of unlawful arrest by the defendants Curt Bailey, James Lembke, Pablo Ramirez, and Corey Sommer, but is granted in all other respects. The defendant City of Dubuque is hereby dismissed with prejudice.