Gregory Clark v. Austin Clark · 926 F.3d 972

concluding that the defendant’s action of “pull[ing] over and put[ting] his hands outside the driver’s side window” supported reasonable suspicion for a Terry investigatory seizure and search of the defendant’s vehicle for a gun

How later courts described this case

concluding that the defendant’s action of “pull[ing] over and put[ting] his hands outside the driver’s side window” supported reasonable suspicion for a Terry investigatory seizure and search of the defendant’s vehicle for a gun
determining that an officer pointing a gun at a suspect “for a few seconds while removing him from his vehicle did not constitute excessive force, and did not violate the Fourth Amendment”
holding that it was not an excessive use of force to point a gun at an armed suspect who had not yet been “removed from the vehicle, patted down, and restrained”
noting that “hostile and unprofessional” policework “does not, alone, carry the burden of showing racial discrimination . . . particularly so when the alleged discriminatory acts are consistent with legitimate police work”

Written by the judges who cited it.

The opinion

SMITH, Chief Judge, concurring.

I concur in the court's holding that the district court properly granted summary judgment in favor of Deputy Clark, as he lacked "fair notice" of his conduct's unlawfulness.

See

Kisela v. Hughes

, --- U.S. ----,

138 S. Ct. 1148

, 1158,

200 L.Ed.2d 449

(2018) (per curiam) (explaining that qualified immunity protects officers lacking "fair notice" of their conduct's unconstitutionality). I write separately to express my disagreement with the court's

conclusion that Deputy Clark had reasonable suspicion to stop Gregory after Gregory departed from the rest area. While Deputy Clark may have had reasonable suspicion to stop Gregory at the rest area had Gregory not consented to a search, that reasonable suspicion did not extend beyond that interaction.

"A seizure may be accomplished either by physical restraint or by sufficient show of authority. The

Terry

seizure requirement is fulfilled when it is apparent from the circumstances that the individual was not free to ignore the officer and proceed on his way."

United States v. Palmer

603 F.2d 1286

, 1288-89 (8th Cir. 1979) (cleaned up).

[I]n determining whether [a] seizure and search were unreasonable, this court looks at whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. The search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.

Wilson v. Lamp

901 F.3d 981

, 986 (8th Cir. 2018) (cleaned up).

The court identifies (1) Deputy Clark knowing that Gregory had a gun and his desire to inspect that gun, (2) Gregory making a U-turn on the highway and, (3) Gregory pulling over and putting his hands out his truck's window as supporting Deputy Clark's reasonable suspicion.

However, Gregory's U-turn and surrender are particularly unsatisfactory bases for reasonable suspicion. By leaving Gregory without instructions to remain and moving to inspect the restrooms, Deputy Clark objectively indicated that the encounter had ended. Gregory left the rest area, reasonably believing his interaction with Deputy Clark had ended. Likewise, after the encounter had ended, Gregory could legitimately avoid further interactions with police.

See

Florida v. Royer

460 U.S. 491

, 498,

103 S.Ct. 1319

75 L.Ed.2d 229

(1983) ;

see also

Gregory Clark Depo. at 138,

Gregory Clark v. Austin Clark

, No. 1:16-cv-00094-AGF (E.D. Mo. Oct. 23, 2017), ECF No. 49-5 (testifying that he pulled over after observing police cars in front of him on the exit overpass while being followed by Deputy Clark). Afraid, and sensing from this "show of authority" that he "was not free to ... proceed on his way,"

Palmer

603 F.2d at 1289

, Gregory eventually stopped at an exit. Many reasonable people traveling between states would be unnerved by having local police follow and surround them on the highway.

See

United States v. Peters

10 F.3d 1517

, 1522 (10th Cir. 1993) (explaining that a nervous reaction to being followed and stared at by an officer after having already been searched and released was insufficient to support finding reasonable suspicion). This does not resemble a typical stop by police for a driving violation. Nervousness in this scenario could easily reflect a cautious consciousness of an imminent confrontation rather than a guilty conscience. Furthermore, "[r]easonable suspicion cannot be manufactured by the police themselves."

United States v. Yousif

308 F.3d 820

, 829 (8th Cir. 2002).

Without Deputy Clark's interaction with Gregory at the rest area, Gregory would have been just another traveler. Therefore, for the stop at the exit to have been reasonable, the circumstances at the rest area must have "justified [Deputy Clark's] interference" with Clark, because a "search must be strictly tied to and justified by the circumstances which rendered its initiation permissible."

See

Wilson

901 F.3d at 986

(internal quotations removed). While I agree that Deputy Clark likely had reasonable suspicion for a stop at the rest area, the question is close. Gregory was present near the crime scene, and, being armed, had had the ability to commit the crime. However, as the court notes, Gregory cooperated with police at the rest area, answering officers' questions and voluntarily providing them with his military identification and concealed carry permit. Furthermore, the caller from the school had not provided a description of the alleged shooter, and Gregory was not engaging in any suspicious activity when approached by Deputy Clark.

C.f.

United States v. Quinn

812 F.3d 694

(8th Cir. 2016) (finding reasonable suspicion where suspect was not only one of the only people in proximity to the crime scene but also matched a description of the perpetrator and acted suspiciously when approached by police). Considering the closeness of the reasonable suspicion question at the rest stop, Deputy Clark's argument that Gregory's behavior on the highway augmented the suspicion he developed at the rest area is weak. Gregory's behavior on the highway was a natural reaction to being followed and surrounded by police, not behavior likely indicative of a guilty conscience or criminal activity. With no relevant additional information to suggest that Gregory had in fact been the shooter at the rest area, Deputy Clark's decision to stop Gregory at the exit after following him for 19 miles was not "reasonably related in scope to the circumstances which justified the interference in the first place," or "strictly tied" to those circumstances.

See

Wilson

901 F.3d at 986

(internal quotations omitted).

Neither does Deputy Clark's desire "to follow up with Gregory about inspecting the gun," justify the stop.

See supra

Part II.B. The Fourth Amendment's protections are not so easily undermined by second thoughts.

See

United States v. Garcia

23 F.3d 1331

, 1335-36 (8th Cir. 1994) (finding officer lacked reasonable suspicion for a second stop where officer released suspects after deciding not to hold them pending the arrival of backup).

Considering the totality of the circumstances, I conclude that Deputy Clark lacked reasonable suspicion for the exit stop and therefore violated Gregory's Fourth Amendment rights.

Nevertheless, that right was not established in a "particularized sense," as of January 2016.

See

Mettler v. Whitledge

165 F.3d 1197

, 1203 (8th Cir. 1999). For the reasons stated by the court in Part II.B. of this opinion, Deputy Clark could have reasonably believed that he had the authority to conduct the stop at the exit. Consequently, the district court properly granted summary judgment in Deputy Clark's favor.