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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