Jason Storrs; Amber Smith v. Travis Rozeboom, in his individual capacity

United States Court of Appeals
For the Eighth Circuit
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No. 22-3358
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Jason Storrs; Amber Smith,
lllllllllllllllllllllPlaintiffs - Appellants,
v.
Travis Rozeboom, in his individual capacity; Preston Maas, in his individual
capacity; Brian Malone, in his individual capacity,
lllllllllllllllllllllDefendants - Appellees.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 14, 2023
Filed: July 25, 2024
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Before COLLOTON,* WOLLMAN, and BENTON, Circuit Judges.
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*Judge Colloton became chief judge of the circuit on March 11, 2024. See 28
U.S.C. § 45(a)(1).

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COLLOTON, Circuit Judge.
Jason Storrs and Amber Smith sued several police officers under 42 U.S.C.
§ 1983 after an incident in which the officers detained the plaintiffs to investigate a
report of shoplifting. The district court granted summary judgment for the officers,
and the plaintiffs appeal. We affirm in part, reverse in part, and remand for further
proceedings.
I.
On December 26, 2019, Officers Rozeboom and Malone responded to a
shoplifting in progress at Dick’s Sporting Goods in Papillion, Nebraska. A police
dispatcher informed the officers that the suspects—a black male and black
female—drove away to the east in a silver four-door sedan.
When Malone received this information, he was near the store and saw what
he thought was a silver four-door sedan traveling east. The driver was a black male,
and a passenger was in the front seat. Malone notified others by radio that he had
located a vehicle matching the dispatcher’s description. He followed the car onto a
highway and conducted a traffic stop. Rozeboom joined him.
Storrs was the driver of the vehicle. The officers approached, spoke with
Storrs, and saw that his passenger, Smith, was a white female. Malone told Storrs
about the shoplifting report. Storrs grew angry and asked what accusation Malone
was making. Malone replied that “this goes really easy, either . . . you can all go in
handcuffs right now or you can answer.” Storrs yelled back, “What’d I do?” Malone
instructed Storrs to turn off his car, and Storrs refused.
Malone asked Storrs if he “did” the shoplifting. Storrs yelled, “No, I did not,
sir. I was picking my girlfriend up from work.” Smith, the female passenger, called
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Malone a “racist piece of crap” and accused him of harassment. Storrs continued to
repeat that “this is bullshit.” As Storrs and Smith continued to yell, Rozeboom
radioed that they had pulled over a black male in a silver car, but that he was refusing
to get out of the car. Malone again asked Storrs to turn off his car and then asked him
to “have a conversation out here.” Storrs refused.
Around this time, Officer Maas arrived on the scene to assist. Malone again
asked Storrs to leave the vehicle and talk to him. Storrs accused the officers of
racism, but nonetheless exited the car. Smith also got out and began recording the
events on her phone. Malone asked Storrs to put his hands behind his back, and Maas
instructed Storrs to turn around. Storrs did not comply. Maas asked him again to turn
around. Storrs complied, and Maas twice told him to “wait right there.” Storrs turned
back around to face the officers, crossed his arms, and said, “No, I’m not under
arrest.” Maas asked him a third time to turn around because he was “being detained.”
Storrs insisted that he was not.
On hearing that Storrs was being detained, Smith stood directly in front of him,
between Storrs and the officers. She demanded to know why he was being detained
and asserted that the officers could not detain him. As she yelled, Maas twice asked
her to “come this way,” away from Storrs. When he asked a third time, he grabbed
her arm to move her. Smith screamed and struggled. Storrs lunged toward Smith.
Rozeboom tased Storrs. Storrs fell to the ground. Maas and Rozeboom restrained
and handcuffed Storrs. As Smith continued recording, Malone grabbed her and
pushed her against the car. Malone then brought Smith to the ground, restrained her,
and handcuffed her.
The officers placed Storrs and Smith in separate squad cars. Maas spoke with
Storrs, while Malone and Rozeboom tried to interview Smith. Smith declined to
speak with them. Malone then noted for the first time that there was “a heavy odor
of marijuana.” Rozeboom replied, “Yeah, I keep getting that.”
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Malone and Rozeboom approached Maas and Storrs. Maas asked Storrs if
there was anything in the car that did not belong to him. Storrs said that they could
not go in his car. Maas explained that he “smell[ed] marijuana coming from you and
the car,” and asked if there was marijuana or anything that “shouldn’t be” in the car.
Storrs said, “No.”
Rozeboom, Malone, and Maas then discussed how to proceed. Rozeboom
acknowledged that Smith did not match the dispatcher’s description, but said that an
officer was heading to Dick’s Sporting Goods to get an image of the shoplifters.
Maas stated that there was probable cause to search the car in the meantime, and
Malone interjected, “Yeah, there’s an odor of marijuana.” Maas agreed. Malone
searched the car and a purse that he found inside the car. He told the other officers
that he found nothing, “not even paraphernalia or drugs,” although his written report
later stated that he found “small pieces of marijuana” in the car.
Rozeboom then received a telephone call and learned that the shoplifting
suspects were actually four black females. After running a records check on Storrs
and Smith, the officers released them.
Storrs and Smith sued Rozeboom, Malone, and Maas, claiming that the officers
violated their rights under the First, Fourth, and Fourteenth Amendments. The
district court determined that the officers were entitled to qualified immunity on each
claim and dismissed the action. We review the district court’s decision on qualified
immunity de novo, viewing the evidence in the light most favorable to the plaintiffs.
To determine whether a police officer is entitled to qualified immunity, we ask
(1) whether the facts alleged establish a violation of a constitutional or statutory right
and (2) whether that right was clearly established at the time of the alleged violation,
such that a reasonable official would have known that his actions were unlawful.
Pearson v. Callahan, 555 U.S. 223, 232 (2009).
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II.
A.
Storrs and Smith first argue that the officers violated the plaintiffs’ right to be
free from unreasonable seizures by detaining them without reasonable suspicion. The
plaintiffs originally argued that both the initial traffic stop and their continued
detention was unreasonable. At oral argument, they abandoned their claim about the
initial stop and focused solely on the continued detention.
The district court treated this claim as encompassing the initial stop only and
not the continued detention. We conclude, however, that the plaintiffs adequately
raised a claim regarding their continued detention. The complaint alleges both that
“Malone effected a traffic stop of Storrs and Smith in the absence of reasonable
suspicion” and that “[e]ach Defendant continued the detention after observing Smith
and Storrs, at which time any objectively reasonable officer would have determined
there was no basis for the detention to continue.” R. Doc. 17, at 8 (emphasis added).
The plaintiffs did not abandon this claim. They argued in the district court that an
alleged odor of marijuana detected by officers after the initial stop did not justify the
seizure.
“The Fourth Amendment requires that a search not continue longer than
necessary to effectuate the purposes of an investigative stop.” United States v. Watts,
7 F.3d 122, 126 (8th Cir. 1993). A seizure that is supported by reasonable suspicion
must conclude if that reasonable suspicion dissipates. Id. The basis for the traffic
stop here was a witness’s description of suspected shoplifters as a black male and a
black female in a four-door silver sedan. The officers had reasonable suspicion to
stop the plaintiffs’ vehicle because they observed a car that generally matched the
description of the suspect vehicle with a black male driver and an unidentified
passenger.
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But after the officers stopped the vehicle and approached on foot, they could
see that the passenger was a white female. It was then readily apparent that the
passengers of the seized vehicle (one black person and one white person) did not
match the description of the shoplifting suspects (two black persons). At that point,
it was no longer reasonable for the officers to suspect that Storrs and Smith were the
perpetrators in the shoplifting incident. The law clearly established that detention
must be supported by reasonable suspicion, see Delaware v. Prouse, 440 U.S. 648,
654 (1979), and a reasonable officer would have known that no reasonable suspicion
existed to continue detaining the pair for shoplifting after observing that Smith was
white.
Although we conclude that the officers could not continue to detain Storrs and
Smith based on reasonable suspicion of shoplifting, our analysis cannot end there.
If the officers gained probable cause to believe that the plaintiffs committed a distinct
offense while they were detained, the officers could then lawfully continue the
detention. See United States v. Sledge, 460 F.3d 963, 966-67 (8th Cir. 2006); see also
United States v. Pickens, 58 F.4th 983, 988-89 (8th Cir. 2023). In this case, the
officers could resume a lawful detention once they had probable cause to believe that
Storrs and Smith were obstructing a peace officer in violation of Nebraska law.
In Nebraska, a “person commits the offense of obstructing a peace officer,
when, by using or threatening to use . . . physical interference, or obstacle, he or she
intentionally obstructs, impairs, or hinders . . . the enforcement of the penal law or the
preservation of the peace by a peace officer.” Neb. Rev. Stat. § 28-906(1). Even
interference with an unlawful detention can establish probable cause to believe that
the interference violates § 28-906(1). Sledge, 460 F.3d at 966-67.
The officers here had probable cause to believe that Smith was obstructing a
peace officer when she stood in front of Storrs and used “physical interference” to
block his detention. A reasonable officer also could have concluded that there was
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probable cause to believe that Storrs violated the statute. Evidence that a suspect
resists handcuffing, struggles with an officer, and continues to resist restraint is alone
sufficient to establish an offense. State v. Ferrin, 942 N.W.2d 404, 413 (Neb. 2020).
After Storrs exited the vehicle, the officers instructed him to stay in place with his
hands behind his back because he was “being detained.” Storrs refused to comply.
Instead, he crossed his arms, continued moving around, and repeatedly asserted that
he was not being detained. A reasonable officer could have believed that there was
probable cause to detain Storrs for obstructing a peace officer.
What remains of the unlawful detention claim, therefore, is the time between
when the officers saw that Smith did not match the dispatcher’s description and when
an officer reasonably discerned probable cause to believe that Smith and Storrs were
committing the offense of obstructing a peace officer. The officers do not raise on
appeal other potential grounds for prolonging the detention, such as a traffic violation
or the odor of marijuana, so those arguments must be raised in the district court if at
all.
B.
The plaintiffs’ next claim is that the officers arrested them without probable
cause. Assuming without deciding that the plaintiffs were arrested, we already have
concluded that a reasonable officer could have believed that there was probable cause
to arrest the plaintiffs for obstructing a peace officer. The existence of probable cause
to support an arrest forecloses a wrongful arrest claim. See McCabe v. Parker, 608
F.3d 1068, 1075 (8th Cir. 2010). An officer who reasonably believes in the existence
of probable cause is entitled to qualified immunity. Bernini v. City of St. Paul, 665
F.3d 997, 1003 (8th Cir. 2012).
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C.
Storrs argues that Rozeboom used excessive force by intentionally tasing Storrs
in the groin. The district court assumed that intentionally tasing the groin would
constitute a use of deadly force, but dismissed Storrs’s claim because he lacked
evidence that Rozeboom intentionally aimed at his groin.
Storrs asserts that he presented sufficient evidence of intent because he was hit
in the groin and Rozeboom is a taser instructor. The video evidence, however,
blatantly contradicts Storrs’s assertion that Rozeboom aimed at his groin. See Scott
v. Harris, 550 U.S. 372, 380-81 (2007). Before Rozeboom deployed the taser, red
lights emitting from the taser were visible on Storrs’s body as Rozeboom tried to aim.
The lights moved around as Storrs moved. The lights never focused on Storrs’s groin
or otherwise suggested that the officer was aiming for that area of the body. That
Rozeboom was trained to use a taser is insufficient to support an inference that he
intentionally aimed at the groin. The video shows that Storrs was moving throughout
the encounter, and there is no other indicium of an intentional strike to the groin.
Rozeboom is thus entitled to summary judgment on this claim.
D.
The plaintiffs’ next claim is that the officers allegedly retaliated against them
for exercising their rights under the First Amendment. The First Amendment
prohibits officials from retaliating against a citizen for exercising his right to freedom
of speech. Hartman v. Moore, 547 U.S. 250, 256 (2006). While that right “is settled
at a high level of generality,” to establish a violation in their “particular case,” Storrs
and Smith must present evidence that (1) they engaged in a constitutionally protected
activity; (2) the officers took adverse action against them that would chill a person
of ordinary firmness from continuing in the activity; and (3) the adverse action was
motivated in part by the plaintiffs’ exercise of their constitutional rights. Scott v.
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Tempelmeyer, 867 F.3d 1067, 1070 (8th Cir. 2017); see Scheffler v. Molin, 743 F.3d
619, 621 (8th Cir. 2014).
Smith argues that Maas and Malone retaliated against her for recording the
encounter. She specifies that Maas grabbed her arm while she was recording; when
she broke away from Maas and continued recording, Malone restrained and
handcuffed her. Smith relies on our reference in Chestnut v. Wallace, 947 F.3d 1085
(8th Cir. 2020), to a “clearly established right to watch police-citizen interactions at
a distance and without interfering.” Id. at 1090.
In this case, however, the video evidence shows that Smith was close to the
scene and interfering with the officers. As she recorded, Smith inserted herself
between Storrs and the officers after the police advised Storrs that he was being
detained. Smith cites no authority that she enjoyed a constitutional right to record a
police encounter while interfering with an effort of the officers to carry out their
duties. She thus cannot show that the officers violated a clearly established right
when they arrested her for obstructing a peace officer.
Storrs’s retaliation claim fails as well. He argues that Rozeboom tased him
because he said that the officers were racists. As evidence of Rozeboom’s motive,
however, Storrs relies solely on the short period of time between his accusations and
Rozeboom’s deployment of the taser. Evidence of temporal proximity between the
exercise of a constitutional right and an adverse action “alone is generally insufficient
to raise a triable issue of material fact on retaliatory motive.” Flowers v. City of
Minneapolis, 558 F.3d 794, 800 (8th Cir. 2009); see Wilson v. Northcutt, 441 F.3d
586, 592-93 (8th Cir. 2006). Because Storrs cannot point to any other evidence of a
retaliatory motive, and his intervening lunge toward Smith gave officers reasonable
grounds to use force, we conclude that a jury could not reasonably find from the
temporal proximity alone that Rozeboom’s action was motivated by Storrs’s speech.
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The district court thus did not err by granting summary judgment for the officers on
these claims.
E.
The plaintiffs’ final claim is that Malone and Maas conducted an illegal search
of Storrs’s vehicle and Smith’s purse inside the vehicle. The officers argue that there
was probable cause to search based on an odor of marijuana. See United States v.
Beard, 708 F.3d 1062, 1065 (8th Cir. 2013). The record shows, however, that there
is a genuine dispute about whether an odor was present. That factual dispute cannot
be resolved by summary judgment.
Storrs and Smith assert that the officers could not have smelled marijuana
because they had not smoked marijuana that day and their vehicle did not contain
marijuana. The district court concluded that whether or not the officers truly smelled
marijuana, Malone was entitled to qualified immunity because he reasonably relied
on Maas’s determination of probable cause. We reach a different conclusion because
the video shows that Malone did not rely on Maas. Several minutes before Maas
mentioned that there was probable cause to search the car, Malone told Rozeboom
that he smelled marijuana. Then, when Maas stated that there was probable cause to
search the car, Malone interjected, “Yeah, there’s an odor of marijuana.” This is not
a case in which an assisting officer relied on the probable cause determination of an
arresting or supervising officer. Cf. Ehlers v. City of Rapid City, 846 F.3d 1002, 1010
(8th Cir. 2017). Malone was the first officer on video to articulate the asserted basis
for probable cause to search. Whether he or Maas perceived an odor of marijuana to
support the determination is a disputed issue of fact. See Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1252-53 (11th Cir. 2013).
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* * *
For these reasons, the judgment of the district court is affirmed in part and
reversed in part. We remand for further proceedings consistent with this opinion.
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