State of Iowa v. Michael Lang

IN THE COURT OF APPEALS OF IOWA

No. 22-1103
Filed January 10, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MICHAEL LANG,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Grundy County, Joel Dalrymple,

Judge.

The defendant appeals his convictions for first-degree murder, attempted

murder, and assault with intent to inflict serious injury. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Benjamin Parrott, Assistant Attorney

General, for appellee.

Heard by Tabor, P.J., and Ahlers and Chicchelly, JJ. Buller, J., takes no

part.
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TABOR, Presiding Judge.

Michael Lang appeals his convictions for first-degree murder, attempted

murder, and assault on a peace officer with intent to inflict serious injury. He

contends the district court should have instructed the jury on justification. But

Lang’s argument, as raised on appeal, was not preserved in the district court.

Having nothing to review, we affirm.

I. Facts and Prior Proceedings

Grundy Center reserve police officer Cody Niehaus was on patrol when a

pickup passed him going thirty-eight miles per hour in a twenty-five zone. This

was “a small town,” so he knew the driver, Michael Lang. Officer Niehaus flashed

his emergency lights to pull the truck over, but Lang sped away. Neihaus pursued,

his lights and siren activated, going as fast as ninety miles per hour.

After about a mile, Lang turned onto a gravel road and stopped. Exiting his

truck, he yelled “shoot me, shoot me, shoot me.” When Officer Niehaus stepped

out of his car, Lang pushed him and said: “Pull your fucking gun, you fighting bitch.”

Niehaus grabbed his radio microphone, calling for more officers. But Lang

grabbed the radio, yelling “bring it on, bring it on, boy.” The officer pulled out his

Taser, and Lang knocked it out of his hands as well.

At that moment a passerby pulled up offering help. While Lang was

momentarily distracted, Niehaus picked up the Taser and shocked Lang. But Lang

ripped the cords off himself and tackled Niehaus to the ground. In the scuffle, Lang

punched and strangled Niehaus.

Just then, Grundy County Deputy Samuel Broome pulled up, pointed his

gun at Lang, and told him to put his hands up. Lang responded: “Come get me,”
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jumped into his truck, and drove off. Eventually Lang drove to his house, where

Deputy Broome saw him entering by the garage door. Broome knocked on the

front door of the house, yelling that he wanted to talk to Lang and for him to come

out with his hands up. Several other officers tried too, but Lang did not respond.

More officers arrived and set up a perimeter around the house. Lang’s

father also came, knocked on the front door, and asked Lang to come out. Still no

response. So law enforcement decided to send in the Iowa State Patrol’s tactical

team followed by a K-9 unit. Officers entered and cleared the garage. They

warned Lang that they would send the dog into the house to bite him if he did not

come out. After no response, they released the dog into the basement but not the

main house where Lang was located.

The tactical team then prepared to enter the house. After announcing

themselves, the team swept in, led by Sergeant Jim Smith. The other officers

heard Smith say “gun” and “get back.” Then a single shot sounded “loud” and

“hollow.” Smith fell to the floor of the garage. Officers listening to the radio traffic

heard: “Officer down” and calls for emergency responders. Another trooper,

Mitchell Kappel, saw Lang standing in the doorway of the garage with a long, black

shotgun. Kappel returned fire, but missed Lang, who disappeared into the house.

The officers then retreated to the basement. Lang shouted: “Get the fuck out of

my house,” “Come in and start shooting,” and “I’ll kill you like I killed your buddy.”

Police negotiators called Lang on his cellphone, urging him to come out.

But Lang said: “No way in hell.” Upping the ante, police introduced a Ballistic

Engineered Armored Rescue Counter Attack Truck (BEARCAT) to the scene.

State Trooper Chass Ossian drove the BEARCAT up to the house. When Lang
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still refused to come out, Ossian used the BEARCAT’s ramrod to push down the

front door, a window, and a wall. Undeterred, Lang appeared at a window and

shot at the BEARCAT, leaving a bullet hole in the windshield on the driver’s side.

Ossian testified, “If it would have made it through the windshield, I would have

been shot.” The tactical team eventually reentered the house and took Lang into

custody. Sergeant Smith died from the shotgun wound to his chest.

The State charged Lang with murder in the first degree, a class “A” felony,

in violation of Iowa Code section 707.2 (2021); attempt to commit murder for

shooting at Ossian, a class “B” felony, in violation of section 707.11; and assault

on a peace officer with intent to inflict serious injury for the attack on Niehaus, a

class “D” felony, in violation of section 708.3A(1).

Before trial, Lang gave notice of his justification defense.1 The State moved

in limine to prohibit the defense from “[a]sking any witness legal questions about

the law regarding self-defense or ‘stand your ground.’” The State also sought to

prevent defense counsel from “[a]sking any witness if law enforcement had an

arrest warrant or search warrant” for Lang’s home. The State argued, “This is a

legal issue and not an issue for the jury to consider.”

At a pretrial hearing, the State pointed to Iowa Code section 704.2A, the

“stand your ground” statute enacted in 2017, which permits individuals to use

deadly force to defend themselves or another if the individual is lawfully present

and has not engaged in illegal activity. See, e.g., State v. Lorenzo Baltazar, 935

1 Lang moved to suppress his police interviews based on a Miranda violation. After

the State said it did not plan to offer those interviews into evidence, Lang withdrew
his motion. He raised no other suppression issues.
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N.W.2d 862, 870 (Iowa 2019). But there are exceptions. Deadly force is not

permitted against peace officers acting in “the lawful performance” of their “official

duties.” Iowa Code § 704.2A(2)(c). The State argued that whether the officers

were acting lawfully was not a jury question and, because the officers did act

lawfully, the instruction was unwarranted. The defense emphasized that the

lawfulness of the officer’s actions was the central issue and should have been for

the jury to decide as a fact finder—aided by the justification instruction.

The court agreed with the State, reasoning that the justification defense

does not apply to “lawful actions” of peace officers and whether officers acted

lawfully was a question of law for the court, not a fact question for the jury. It

sustained the State’s motion on those two grounds but told the parties it would

consider offers of proof that the defense believed necessary and rule on objections

as they arose.

Acting on that opening, the defense called Deputy Broome for an offer of

proof. Broome testified that the officers did not secure a search warrant or an

arrest warrant but did not need a warrant to enter and arrest Lang because of the

exigent circumstances. Broome also agreed that the police never announced to

Lang that he was under arrest.

The defense raised the issue again at the jury instruction conference. The

parties clarified that the instruction would apply only to the murder and attempted

murder charges. The court sustained its earlier ruling, conceding that whether the

police action was lawful was “a legitimate issue” in the case, but it was an issue of

law to be determined by the court.
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The jury convicted Lang as charged. In its motion for a new trial, the

defense argued, “The [c]ourt erred in failing to instruct the jury on self-defense and

in its finding that applicability of the exception to Iowa Code [section] 704.2A(2)(c)

was not a question for the jury.” Again, the court determined the officers acted

lawfully, that the lawfulness of their action was a question of law, and the instruction

was unwarranted.

Lang appeals. We granted oral argument.

II. Standard of Review

“We review challenges to jury instructions for correction of errors at law.”

State v. Ross, 986 N.W.2d 581, 584 (Iowa 2023). But “when a jury instruction

implicates a constitutional right, our review is de novo.” State v. Green, 896

N.W.2d 770, 775 (Iowa 2017).

III. Analysis

Lang argues that the district court should have instructed the jury on

justification and that failure to do so violated his right to present a defense.2

“Although the burden to disprove self-defense rests with the State, the defendant

bears the burden of demonstrating that the record contains sufficient evidence to

support an instruction on this issue.” State v. Ceasar, 585 N.W.2d 192, 194 (Iowa

1998), overruled on other grounds by State v. Bruegger, 773 N.W.2d 862, 871

(Iowa 2009).

2 Lang grounds his constitutional claim on the Fourteenth Amendment. See State
v. Fox, 491 N.W.2d 527, 530–31 (Iowa 1992) (“The right to present a defense is
rooted in the Sixth Amendment right to compulsory process. . . . The right to
present a defense is so fundamental and essential to a fair trial that the Supreme
Court has accorded it the status of an incorporated right in the due process clause
of the Fourteenth Amendment . . . .”).
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The self-defense statute provides: “A person is justified in the use of

reasonable force when the person reasonably believes that such force is

necessary to defend oneself or another from any actual or imminent use of

unlawful force.” Iowa Code § 704.3. And, as mentioned above, section 704.2A

adds that a person can use deadly force to defend themself or another in a place

they are lawfully present, such as their home, as long as they have not engaged

in illegal activity.

But force cannot be used to repel an arrest even if the arrest is unlawful.

See Iowa Code § 804.12; see also State v. Wilson, 968 N.W.2d 903, 917–19 (Iowa

2022) (finding the original entry into the home was unlawful and the resulting drug

evidence must be suppressed and thus the arrest itself was unlawful while also

affirming the conviction for resisting the arrest); State v. Thomas, 262 N.W.2d 607,

611 (Iowa 1978) (abrogating the common law right to resist unlawful arrest and

announcing the rule: “[A] person may not resist an arrest reasonably effected by

one whom the arrestee knows or has good reason to know is a peace officer,

despite legality or illegality of the arrest”).

Use of force by police while making an arrest is also governed by statute.

“A peace officer or other person making an arrest . . . may use such force as is

permitted” by the use-of-force statues. Iowa Code § 704.12. Those provide, “A

peace officer, while making a lawful arrest, is justified in the use of any force which

the peace officer reasonably believes to be necessary to effect the arrest or to

defend any person from bodily harm while making the arrest.” Id. § 804.8(1). A

warrant is not always required to make an arrest. Id. § 804.7 (explaining that a

police officer may make an arrest without a warrant where “a public offense has in
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fact been committed” and “the peace officer has reasonable grounds to believe

that the person to be arrested has committed it”).

And, under some circumstances, peace officers may enter a home to make

an arrest even without a warrant:

If a law enforcement officer has reasonable cause to believe
that a person whom the officer is authorized to arrest is present on
any private premises, the officer may upon identifying the officer as
such, demand that the officer be admitted to such premises for the
purpose of making the arrest. If such demand is not promptly
complied with, the officer may thereupon enter such premises to
make the arrest, using such force as is reasonably necessary.

Id. § 804.15.

But Lang argues that neither these statutes nor Iowa caselaw answers a

key question: does an arrestee retain a right to self-defense when law enforcement

uses such excessive force that the arresting officers are no longer acting “in the

lawful performance of [their] official duties”? Id. § 704.2A(1), (2)(c). Lang

contends, “The right to resist an illegal arrest, which is abrogated by

section 804.12, must thus be distinguished from the right to defend oneself against

unlawful force.” He also reasserts that whether police action is “unlawful” is a fact

question for the jury.

To support his appellate claims, Lang relies on State v. Bedard, 668 N.W.2d

598 (Iowa 2003), and State v. Brown, No. 09-1862, 2010 WL 4105572 (Iowa Ct.

App. Oct. 20, 2010). In Bedard, police received a complaint that an intoxicated

man was starting fights at a bar. 668 N.W.2d at 599. An officer approached

Bedard, who matched the description, at a nearby grocery store and grabbed his

arm. Id. Bedard took a swing at the officer, who arrested him for assaulting a

police officer. Id. On appeal, our court found the arrest violated Bedard’s
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constitutional rights and was “unlawful,” so Bedard’s self-defense was justified.

State v. Bedard, No. 01-0956, 2003 WL 288985, at *4 (Iowa Ct. App. Feb. 12,

2003), rev’d on further review by Bedard, 668 N.W.2d at 598. On further review,

the State argued that section 804.12 prevented Bedard from using force to resist

the arrest. Bedard, 668 N.W.2d at 600. The supreme court bypassed this

argument and decided “even if the attempt to detain Bedard was unlawful” and

section 804.12 did not apply to the “investigatory stop,” “the assaultive conduct on

which Bedard’s conviction was based was not reasonable force necessary to

defend himself.” Id. Thus, Lang argues the supreme court left open whether a

person can reasonably resist unlawful detention or arrest.

Lang also cites Brown, where police officers entered a suspect’s home in

violation of the Fourth Amendment. 2010 WL 4105572, at *3. After the entry,

Brown fought with the officers and was charged with assault. Id. Brown argued

self-defense, and the jury received a justification instruction without objection from

either side. Id. But Brown objected to another instruction on the unavailability of

self-defense when resisting an arrest, which was almost identical to Iowa Code

section 804.12. Id. Brown argued he was not charged with resisting arrest, and

the instruction would confuse the jury because he was not under arrest when the

alleged assault occurred. Id. Our court found that whether Brown was under arrest

was a fact question. Id. at *4. If he was, then the resisting-arrest instruction

became relevant to the assault charge and it was proper to give it. Id. Lang takes

Brown to mean that a justification defense is “legally available” even in the context

of a police interaction.
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With those cases as a framework, Lang claims the issue on appeal is

whether and when an officer’s actions constitute “unlawful force.” See Iowa Code

§ 704.3 (“A person is justified in the use of reasonable force when the person

reasonably believes that such force is necessary to defend oneself or another from

any actual or imminent use of unlawful force.”). Based on Bedard and Brown, he

argues that he could defend himself because the police allegedly used excessive

force against him. And the court should have given a justification instruction. On

appeal he urges that he used self-defense not to resist arrest but to resist

excessive force. Lang recognizes that Iowa has abrogated the common law right

to resist an unlawful arrest. See Thomas, 262 N.W.2d at 611 (“[A] far more

reasonable course is to resolve an often difficult arrest legality issue in the courts

rather than on often hectic and emotion laden streets.”). But he argues that, while

liberty can be restored through the legal process, “life and limb cannot be repaired

in a courtroom,” citing State v. Nunes, 546 S.W.2d 759, 762 (Mo. Ct. App. 1977).

The State contends Lang did not preserve error on his appellate claim. See

Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012). We agree. After reviewing

the pleadings and the discussion of the justification issue before, during, and after

trial, we find no defense argument that the use of excessive force by the officers

justified Lang’s conduct. Instead, the defense focused on the lawfulness of the

police presence in Lang’s house. During the motion in limine hearing, defense

counsel summarized, “Our position is that self-defense is available, stand your

ground says that self-defense is available. There’s a factual question as to

whether or not . . . police officers/law enforcement officers were there lawfully, we

should be able to ask about it.”
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The prosecutor disputed that interpretation of the stand-your-ground law:

What that means is if a police officer’s off duty, obviously it doesn’t
apply if he’s not doing his official duties. . . . [Y]ou don’t get to say
you don’t have a warrant and I get to blast you. That’s not how the
law works. . . . And for them to get to ask the question, did they have
a warrant, that’s not for the jury to decide. That’s a legal question.

During trial, Lang made one offer of proof to persuade the court to give a

justification instruction. Counsel asked Deputy Broome whether police had a

search or arrest warrant, why not, and what circumstances existed to excuse the

lack of a warrant.3 Counsel did not ask about the officers’ use of force, nor did the

defense call any other witnesses to discuss what constitutes excessive force.

At the jury instruction hearing, the defense argued that the evidence raised

an inference that Lang was acting in self-defense. The defense again insisted that

“whether an arrest was taking place” was a fact question. Citing section 804.7, the

State responded, “They can arrest somebody without a warrant,” and the officers

here performed their “official duties” under the stand-your-ground statute. In its

ruling the district court did not consider the degree of force used by the officers.

Rather, the court’s reasoning was limited to the legal question of whether police

acted lawfully to make an arrest.

Whether the police use of force was excessive or unreasonable under the

circumstances is a question Lang raises now for the first time. Lang did not

preserve his claim that excessive police force formed the root of his self-defense.

The district court did not rule on that question. So we do not address it. See State

3 Broome also agreed that no one explicitly announced that Lang was under arrest.

Broome testified he thought a reasonable person under the circumstances would
understand the officers wanted to arrest him and that suspects are less likely to
come out of hiding if they think they will be taken into custody.
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v. Cyrus, 997 N.W.2d 671, 683 n.7 (Iowa 2023) (declining to address issue raised

for the first time on appeal). And because Lang raises no other issues in the

appeal, we affirm his convictions.

AFFIRMED.