Opinion
3-01-CV-10183
March 28, 2003
ORDER
In its March 11, 2003 Order, the Court granted summary judgment in favor of all city defendants on plaintiffs' false arrest/imprisonment claims and withheld ruling on plaintiffs' Iowa Constitutional law claims. On March 17, 2003, plaintiffs filed a Motion for Amendment of Findings and Amendment of Ruling on Summary Judgment Motions. Dillard's resisted on March 19, 2003, and plaintiffs replied on March 24, 2003. Hearing was held on the false arrest and Iowa Constitutional law issues on March 24, 2003. Thereafter, plaintiffs and defendants filed supplemental briefs. Having reconsidered the matter, the Court now denies Dillard's motion for summary judgment on plaintiffs' false arrest/imprisonment claims. The Court grants the city defendants' motion for summary judgement on plaintiffs' Iowa Constitutional law claims.
I. BACKGROUND
The facts of this case are fully set forth in the Court's March 11, 2003 Order and are incorporated by reference. The facts are undisputed or viewed in a light most favorable to plaintiffs.
II. APPLICABLE LAW AND DISCUSSION
A. False Arrest
False arrest is indistinguishable from false imprisonment under Iowa law. See Dixon v. HyVee, Inc., 2001 WL 912738, *2 (Iowa Ct.App. 2001). The torts are defined as "an unlawful restraint on freedom of movement or personal liberty." Valdadez v. City of Des Moines, 324 N.W.2d 475, 477 (Iowa 1982). As the Court found in its March 11, 2003 Order, plaintiffs' arrest was unlawful, as it was not supported by probable cause. See Order at 14. However, because the officers' actions were based upon a "reasonable ground" that a crime had been committed, the Court found that the city defendants are not liable to plaintiffs under a theory of false arrest/imprisonment. See id. at 18. See also, Children v. Burton, 331 N.W.2d 673, 679 (Iowa 1983). The Court will now reconsider whether a reasonable jury could find Dillard's liable for plaintiffs' arrests.
Liability for false arrest/imprisonment is established by showing that the defendant participated in or instigated the plaintiffs' false arrest. See Dixon, 2001 WE 912738, at *2. Iowa courts have turned to the Restatement of Torts (Second) to clarify the meaning of "instigation."
Instigation consists of words or acts which direct, request, invite or encourage the false
imprisonment itself. In the case of an arrest, it is the equivalent, in words or conduct, of "Officer, arrest that man!" It is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be done about any arrest, without persuading or influencing them.
Id. (citing Restatement of Torts (Second) § 45A cmt. c. (1965)) (emphasis added). Instigation may be shown by direct or circumstantial evidence. Klemm v. Adair, 179 N.W. 51, 53 (Iowa 1920) ("We agree that it is sufficient to send [a false imprisonment case] to a jury if there be evidence tending to show that the acts of the defendant were a proximate and efficient cause of the arrest, even though it be not shown that he directly instigated it"); and Deadman v. Valley Nat'l. Bank of Arizona, 743 P.2d 961, 967 (Ariz. Ct. Ap. 1987) ("A defendant may be held liable as the instigator of an arrest, even though there is no evidence that he expressly requested or demanded it, as long as the facts surrounding the arrest reasonably create a permissible inference of instigation.").
In Deadman v. Valley Nat'l Bank of Arizona, 743 P.2d 961 (Ariz.Ct.App. 1987), the Arizona Court of Appeals addressed an issue similar to the one before this Court. Mr. Deadman, a bank customer, attempted to use his VISA card to make a direct withdrawal from an account. Id. at 963. While the bank employee was in the process of receiving authorization for the withdrawal, she received a telephone call from a supervisor who was working at one of the bank's branch locations. Id. The supervisor had previously alerted the bank employee about "a gang that was operating in the Phoenix area using stolen or forged credit cards to obtain cash advances." Id. She called to inform the bank employee that a man had been arrested for committing forgery at the bank the night before. Id. She advised that the man presented an out-of-state license and credit card and sought a $2,000 cash advance. Id.
Although not controlling, Deadman is persuasive authority. Like Iowa, Arizona has adopted the false arrest/imprisonment law set forth in the Restatement (Second) of Torts, including the provisions on "instigation." See Deadman, 743 P.2d at 966.
After receiving this information, the bank employee "became alarmed and thought that Mr. Deadman's card might also be fraudulent." Id. at 964. She thought Mr. Deadman looked nervous, and she believed he was too young to have a $2,000 line of credit. Id. The bank employee stayed on the telephone so that Mr. Deadman would not be alerted. In the meantime, someone from the other bank called the police, reporting that they believed a man was using a fraudulent credit card. Id. The bank employee stalled Mr. Deadman by telling him that the transaction was almost over. Id. Mr. Deadman left the bank for about five minutes to get a cup of coffee and returned to receive his money. Id. at 965. When the police officer arrived, the bank employee nodded her head in Mr. Deadman's direction, and the officers frisked and handcuffed him. Id. Mr. Deadman spent between 15-30 minutes handcuffed in a conference room before the matter was resolved. Id.
The Court held that although there was no direct evidence that the bank told the officers to arrest Mr. Deadman, there was "substantial evidence from which a jury could reasonably conclude that the bank, through its employees, either instigated or participated in Deadman's arrest." Id. at 969. The bank employee asked the police to come to the bank as quickly as possible; she "actively undertook to stall Deadman so that he might remain in the branch long enough to be apprehended[;]" and she "pointed Deadman out to the officers by nodding toward him." Id. When he was arrested, the bank employee said "something like, `We finally caught him.'" Id. The Court concluded that on these facts, a reasonable jury could find that "the bank's conduct amounted to more than merely providing information." Id.
Dillard's employees took similar actions in the case at bar. Weigelt telephoned the police department twice. The first time she told the dispatcher that there was a third suspect (Fakorzi) in Dillard's who Weigelt believed was with the Leapharts, two forgers who had been arrested moments earlier that day in Dillard's. Weigelt told the dispatcher that Fakorzi wrote a check that was declined by Equifax for unknown reasons, and provided a description of Fakorzi. Weigelt called the police department a second time to find out when the officers would be arriving at Dillard's. The dispatcher responded that the officers were on their way. He later commented to an unknown person that "the natives are getting pretty testy." Plaintiffs Appendix, at 214. After placing her phone calls, Weigelt stalled Fakorzi until the police arrived. See Plaintiffs Appendix, at 112.
Like Weigelt, Nathan Bedford telephoned the Coralville Police Department, reporting that there was a third forgery suspect at Dillard's. Nathan Bedford met the officers when they arrived at Dillard's. He stated, "We've got two more in here," and then led officer DeBoer to plaintiffs. Plaintiffs' Appendix, at 162.
The Court notes that under similar circumstances, the Deadman court held that the plaintiff established a prima facie case of false arrest. See Deadman, 743 P.2d at 969-71. This Court, however, need not determine whether these facts alone are sufficient to establish a claim for false arrest. Liability for false arrest has attached where the defendant did not give a complete report to the police. See Wehrman v. Liberty Petroleum Co., 382 S.W.2d 56, 62 (Mo.Ct.App. 1964) ("The jury could find that by knowingly giving the police such incomplete, biased, and misleading information Brown instigated plaintiffs arrest. . . .") In this case, Officer DeBoer ordered Weigelt to accompany Fakorzi into the dressing room so Fakorzi could change into her street clothes. While in the dressing room, Fakorzi asked Weigelt what was happening. Weigelt said that she did not know, and that the police would explain. Fakorzi inquired whether the situation had anything to do with the check she had written earlier that day at Dillard's. Weigelt did not tell Fakorzi about Dillard's combined check limit of $200.00. Instead, she again told Fakorzi that the police would explain. Shortly thereafter, plaintiffs were handcuffed and placed in squad cars. At no time did Weigelt tell the arresting officers of Dillard's check writing policy.
Dillard's check writing policy allows a customer to write an aggregate of no more than $200.00 in checks at Dillard's in one day. If a customer writes more than one check in one day and the sum of the checks exceeds $200.00, Equifax automatically declines the check.
Viewing the facts in a light most favorable to plaintiff, the Court finds that Weigelt's omission impeded the intelligent exercise of the officers' discretion. See id. See also, Deadman, 743 P.2d 961, 970 ("[A] private citizen who does not expressly request the detention of another does not "instigate' an arrest, so long as his actions were reasonable in light of the facts then known or readily available to him.") (emphasis added). Had Weigelt mentioned the check writing policy, this controversy would likely have been avoided. Coupling this with Weigelt's and Bedford's other activities, the Court finds a jury could reasonably find that Dillard's instigated plaintiffs' arrests.
Dillard's cites to Fuller v. City of Cedar Rapids, 2000 WL 1868966 (Iowa Ct.App. 2000) and Dixon v. Hy-Vee, Inc., 2001 WL 91273 (Iowa Ct.App. 2001). Fuller is inapposite, as it regards the instigation requirement in the context of a malicious prosecution claim, not a false arrest/imprisonment claim. Because the facts of Dixon bear little resemblance to the case at bar, it provides little guidance. Dixon involved a good faith misidentification of a shoplifter by a store employee. Id. at *1. The parties in Dixon did not argue that the store employee withheld crucial information from the police, or that he supplied information to the police that he knew to be false. Id. at *3.
B. Iowa Constitutional Violations
In addition to their § 1983 claims, which are based upon violations of the 4th Amendment of the United States Constitution, plaintiffs claim that their arrests violated Article 1, § 8 of the Iowa Constitution and seek money damages. While § 1983 provides such a remedy for violations of the federal constitution, there is no similar statute in the Iowa Code for violations of the Iowa Constitution. Thus, the question is whether Article 1, § 8 itself permits direct claims for money damages as a remedy for an arrest without probable cause.Courts in other jurisdictions have been reluctant to recognize direct claims for money damages under state constitutional provisions. See Katzberg v. Regents of the Univ. of Cal., 58 P.3d 339, 345-50. The majority of courts "have declined to recognize such a constitutional tort or implied damages remedy. . . ." Id. at 345. A key consideration has been whether there are alterative means of relief available to the plaintiffs under state and federal law. Id., n. 10. (listing numerous cases which have held that the availability of other remedies is an important factor to consider when determining whether to recognize an implied damages remedy for state constitutional violations).
Plaintiffs have cited no authority recognizing a claim for money damages under Article 1, § 8 for the improper arrest of a person. However, they note that Iowa courts have recognized direct actions under Article 1, § 8 for illegal searches of a person's home or residence. See, eg., Girard v. Anderson, 257 N.W. 400, 403 (Iowa 1934); and Krehbiel v. Henkle, 121 N.W. 378, 379-80 (Iowa 1909). These cases are not controlling in the case at bar, because there is a critical distinction between a violation of Article 1, § 8 for an improper arrest, and a violation of Article 1, § 8 for an illegal search of a home; namely, the availability of other tort remedies. See Katzberg v. Regents of the Univ. of Cal., 58 P.3d at 345 n. 10.
One can seek redress for his improper arrest by filing a false arrest claim. False arrest does not protect against the unlawful search of one's home. Other torts, such as trespass and invasion of privacy, are often unavailable as well. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 394 (1971). The lack of alterative remedies explains why, in 1909 and 1934, the Iowa Supreme Court recognized a claim for money damages under Article 1, § 8 for the illegal searches of one's home. Krehbiel, 121 NW. at 379-80; Girard, 257 NW. at 403. This rationale does not apply to plaintiffs' Article 1, § 8 claims for improper arrests.
As the U.S. Supreme Court explained in Bivens, trespass is not available to the claimant if a person demands entry and is granted entry to claimant's house. Id. at 394. Because law enforcement officers are cloaked with apparent authority to enter, or in some cases with a warrant purporting to allow entry, a homeowner will often permit the officer to enter the house. Id. This would negate a claim for trespass and possibly a claim for invasion of privacy as well. Id.
Iowa law recognizes a claim for false arrest, and 18 U.S.C § 1983 provides a federal claim for the violation of the Fourth Amendment of the United States Constitution. Plaintiffs filed both of these claims. Because there are alterative, established remedies available to plaintiffs, the Court finds that Article 1, § 8 of the Iowa Constitution does not allow direct claims for money damages as a remedy for an arrest without probable cause. This conclusion is supported by the majority of courts who have addressed similar issues in other jurisdictions. See Katzberg, 58 P.3d 339, 344-346 345-350 (Cal. 2002) (providing analysis on whether money damages are available for various state constitutional violations).
Even if the Court were to find that money damages are available for violations of Article 1, § 8 of the Iowa Constitution, it would enter summary judgement in favor of the city defendants on this claim. In Krehbiel v. Henkle, 121 NW. 378, 379-80, (1909), the Iowa Supreme Court stated that money damages were available for the unlawful search of plaintiffs home, where the officers acted maliciously and "without reasonable ground." It follows that if an officer's actions were based upon a "reasonable ground," money damages would not be available. Such an interpretation would be consistent with application of § 1983 for Fourth Amendment violations. See Smithson v. Aldrich, 235 F.3d 1058, 1061 ("Qualified immunity shields the defendant from suit if he or she could have reasonably believed his or her conduct to be lawful in light of clearly established law and the information that the defendant possessed.") As recently recognized in Arrington v. City of Davenport, 240 F. Supp.2d 984, 988 (S.D. Iowa 2003) (citing Cline, 617 N.W.2d at 284-85), "The Iowa Supreme Court has endeavored to interpret the state search and seizure clause consistently with the Fourth Amendment, parting company only with respect to the U.S. Supreme Court's good faith exception to the exclusionary rule. . . ." The exclusionary rule is not at issue in this civil case. Consequently, the Court finds no reason to interpret the Iowa Constitution inconsistently with Fourth Amendment jurisprudence.
As this Court found in its March 11th Order, DeBoer and Kron acted based upon a "reasonable ground" that a crime had been committed. Order at 18. See also Order, at 14 (finding that the officers had arguable probable cause to arrest plaintiffs and were therefore entitled to qualified immunity from plaintiffs' § 1983 claims). Therefore, DeBoer and Kron are immune from plaintiff's claim for money damages for violation of Article 1, § 8 of the Iowa.
The Court notes that qualified immunity would not shield the City of Coralville from an Article 1, § 8 claim for its failure to adequately train its officers. The Court grants summary judgment in favor of the City of Coralville on this claim based on its finding that Article 1, § 8 does not allow a direct action for money damages.
III. CONCLUSION
Upon reconsideration, the Court finds a reasonable jury could find that Dillard's "instigated" plaintiffs' arrests. Therefore, Dillard's motion for summary judgment on plaintiffs' false arrest/imprisonment claim is denied. The Court grants summary judgment in favor of the city defendants on plaintiffs' Iowa Constitutional law claims. All other pending matters will be deferred for ruling by the trial judge.
IT IS SO ORDERED.