Cierra Dunn v. John Does, 1-22

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 23-2220
___________________________
Cierra Dunn; Verchon DeBrossard; Michael Klingenberg; Trentae Fugate;
Cameron Lard; Sophia Jacobsen; Jivonte Johnson; Jayvione Lewis; Makenzie
Moler; Jaquan Patton; Joshua Petefish; Emma Timberlake; Harrison Woods; Tony
Young
Plaintiffs - Appellees
v.
John Does, 1-22; Ian Lawler; Michael McTaggart; Brandon Holtan; Chris Hardy;
Brendan Egan; Jeremy Betts
Defendants - Appellants
Tyler Palmer
Defendant
David Chiodo; Timothy Coughennower; Benjamin McCarthy
Defendants - Appellants
Nick Smith
Defendant
Adam Herman; Todd Wilshusen
Defendants - Appellants

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Ken Callahan
Defendant
Ryan Armstrong
Defendant - Appellant
Tyler Moffatt
Defendant
Jacob Hedlund; Kyle Gruver; Nicholas Valentine; Clark Allen; Ernesto Escobar-
Hernandez
Defendants - Appellants
Chad Nicolino; Jeffrey George
Defendants
Brad Youngblut
Defendant - Appellant
Jake Forrester
Defendant
Kirk Bagby
Defendant - Appellant
Dana Wingert; City of Des Moines, Iowa; Polk County Iowa; City of West Des
Moines; City of Altoona
Defendants
___________________________

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No. 23-2268
___________________________
Cierra Dunn; Verchon Debrossard; Michael Klingenberg; Trentae Fugate;
Cameron Lard; Sophia Jacobsen; Jivonte Johnson; Jayvione Lewis; Makenzie
Moler; Jaquan Patton; Joshua Petefish
Plaintiffs
Emma Timberlake
Plaintiff - Appellee
Harrison Woods; Tony Young
Plaintiffs
v.
John Does, 1-22; Ian Lawler; Michael McTaggart; Brandon Holtan; Chris Hardy;
Brendan Egan; Jeremy Betts; Tyler Palmer; David Chiodo; Timothy
Coughennower; Benjamin McCarthy
Defendants
Nick Smith
Defendant - Appellant
Adam Herman; Todd Wilshusen; Ken Callahan; Ryan Armstrong; Tyler Moffatt;
Jacob Hedlund; Kyle Gruver; Nicholas Valentine; Clark Allen; Ernesto Escobar-
Hernandez; Chad Nicolino; Jeffrey George; Brad Youngblut; Jake Forrester; Kirk
Bagby; Dana Wingert; City of Des Moines, Iowa
Defendants
Polk County Iowa
Defendant - Appellant

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City of West Des Moines; City of Altoona
Defendants
___________________________
No. 23-2304
___________________________
Cierra Dunn
Plaintiff - Appellant
Verchon Debrossard; Michael Klingenberg
Plaintiffs
Trentae Fugate
Plaintiff - Appellant
Cameron Lard; Sophia Jacobsen; Jivonte Johnson; Jayvione Lewis; Makenzie
Moler; Jaquan Patton; Joshua Petefish; Emma Timberlake; Harrison Woods; Tony
Young
Plaintiffs
v.
John Does, 1-22; Ian Lawler
Defendants
Michael McTaggart; Brandon Holtan
Defendants - Appellees

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Chris Hardy; Brendan Egan; Jeremy Betts; Tyler Palmer; David Chiodo; Timothy
Coughennower; Benjamin McCarthy; Nick Smith; Adam Herman; Todd
Wilshusen
Defendants
Ken Callahan
Defendant - Appellee
Ryan Armstrong; Tyler Moffatt; Jacob Hedlund; Kyle Gruver; Nicholas Valentine;
Clark Allen; Ernesto Escobar-Hernandez; Chad Nicolino; Jeffrey George; Brad
Youngblut; Jake Forrester
Defendants
Kirk Bagby
Defendant - Appellee
Dana Wingert
Defendant
City of Des Moines, Iowa; Polk County Iowa
Defendants - Appellees
City of West Des Moines; City of Altoona
Defendants
____________
Appeal from United States District Court
for the Southern District of Iowa - Central
____________

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Submitted: May 8, 2024
Filed: September 5, 2024 (Corrected: September 30, 2024)
____________
Before SMITH, KELLY, and KOBES, Circuit Judges.
____________
KOBES, Circuit Judge.
Des Moines police and Polk County, Iowa deputies arrested 14 people during
a night of civil unrest. Alleging violations of their Fourth Amendment rights, the
arrestees sued 53 defendants under 42 U.S.C. § 1983. These fractured appeals
follow the district court’s summary judgment and qualified immunity rulings
involving 14 plaintiffs and 21 named defendants. As explained further below, we
affirm in part, dismiss in part, reverse in part, and remand for further proceedings.
I.
We start with a general description of the facts giving rise to these appeals. In
the wake of George Floyd’s death, protests rocked downtown Des Moines. On May
29, 2020, things started peacefully before devolving into conflict. The next day went
much the same. As the evening turned into the early morning hours of May 31,
downtown alternated between calm and chaos.
At 11:07 p.m. on May 30, police declared an unlawful assembly at the Iowa
State Capitol Building, where protests had grown violent, and issued dispersal
orders. After they deployed pepper spray and tear gas, the protesters moved west
across the river. They settled at the Court Avenue District, about a mile away from
the Capitol. An hour later, the crowd of about 200 to 250 people turned back across
the river and toward the Des Moines Police Station. The police formed a line, and
at about 12:30 a.m., they deployed tear gas and broadcast an order to “clear the
[Court Avenue] bridge.” The following image shows where and when police issued
dispersal orders:

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The crowd complied with the order at the bridge and retreated to the Court
Avenue District. At 12:45 a.m., someone threw a projectile that knocked an officer
to the ground. Fifteen minutes later, police—who outnumbered protesters—formed
another line. The next hour passed mostly without incident as the crowd mixed with
the Court Avenue bar scene. Just before 2:00 a.m., the Des Moines Police Chief
dismissed his officers for the night. But the calm was short-lived.
Around 2:25 a.m., the crowd “unexpectedly became agitated and violent.” A
small group soon broke off, moved west, and ransacked a Hy-Vee grocery store.
The looters scattered as an initial wave of officers moved in from the east.
Secondary waves of officers were directed to clear the Court Avenue area and
prevent riotous groups from reforming. They swept through the area east of the Hy-
Vee around 2:37 a.m. But by then, it was mostly peaceful.

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Michael Klingenberg, Joshua Petefish, Cameron Lard, Vernon DeBrossard,
Cierra Dunn, Trentae Fugate, and the Patton group—comprising Jaquan Patton,
Jayvione Lewis, Jivonte Johnson, Emma Timberlake, Sophie Jacobsen, and Tony
Young—were all arrested between 2:49 and 4:00 a.m. The image below shows
when and where:
This lawsuit followed. In response to multiple cross-motions for summary
judgment, the district court issued a comprehensive, well-reasoned opinion with
around 800 unique rulings. We consider just a few of them.
We begin with the Des Moines defendants’1 appeal. They challenge the denial
of qualified immunity to several officers and the grant of summary judgment to some
1 They are Captain Chris Hardy, Officers Ian Lawler, Michael McTaggart,
Brandon Holtan, Brendan Egan, Jeremy Betts, David Chiodo, Timothy
Coughennower, Benjamin McCarthy, Adam Herman, Todd Wilshusen, Ryan
Armstrong, Jacob Hedlund, Kyle Gruver, Nicholas Valentine, Clark Allen, Ernesto
Escobar-Hernandez, Brad Youngblut, Kirk Bagby, and 22 John Does.

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of the plaintiffs. We then move to Polk County Deputy Nick Smith’s appeal from
the court’s denial of qualified immunity. And we finish with Dunn and Fugate’s
cross-appeal from the court’s grant of qualified immunity to Des Moines Officer
Holtan and Polk County Deputy Ken Callahan.
II. The Des Moines Defendants’ Appeal
The Des Moines defendants appeal from the district court’s denials of
qualified immunity and grants of summary judgment. We review both de novo,
Bates v. Richardson, 97 F.4th 582, 585 (8th Cir. 2024); Peterson v. Heinen, 89 F.4th
628, 633 (8th Cir. 2023), but through different evidentiary lenses. Reviewing a grant
of summary judgment, we take the facts in the light most favorable to the
nonmovants and make all reasonable inferences in their favor. Bates, 97 F.4th at
585. For a denial of qualified immunity, we view the record and make inferences in
the plaintiffs’ favor. Peterson, 89 F.4th at 633.
The core of this appeal is the pretrial denial of qualified immunity to officers,
which we have limited jurisdiction to review. Jackson v. Gutzmer, 866 F.3d 969,
975 (8th Cir. 2017). Accepting as true “the facts that the district court specifically
found were adequately supported” and those it likely assumed, Roberts v. City of
Omaha, 723 F.3d 966, 972 (8th Cir. 2013) (citation omitted), we ask if they
“demonstrate the deprivation of a constitutional or statutory right” and if “the right
was clearly established at the time of the deprivation,” Peterson, 89 F.4th at 633
(citation omitted). “We review each defendant’s conduct individually.” Id.
A. Blanket Probable Cause
The Des Moines defendants’ opening salvo is broad. They insist that they are
entitled to qualified immunity on the unlawful arrest claims because they had
probable cause to arrest anyone in the vicinity of the Court Avenue District for any
of three misdemeanors: participation in a riot, Iowa Code § 723.1; unlawful
assembly, § 723.2; and failure to disperse, § 723.3.

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A warrantless arrest is reasonable under the Fourth Amendment “where there
is probable cause to believe that a criminal offense has been or is being committed.”
Devenpeck v. Alford, 543 U.S. 146, 152 (2004). And in May 2020, it was clearly
established that “a warrantless arrest, unsupported by probable cause, violates the
Fourth Amendment.” Thurairajah v. City of Fort Smith, 925 F.3d 979, 984 (8th Cir.
2019) (citations omitted). But officers are still entitled to qualified immunity if they
have arguable probable cause—that is, “if they arrest a suspect under the mistaken
belief that they have probable cause to do so, provided that the mistake is objectively
reasonable.” Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008).
Iowa prohibits “willingly join[ing] in or remain[ing] a part of” a riot or an
unlawful assembly. §§ 723.1, 723.2. At the time, it defined a “riot” as “three or
more persons assembled together in a violent manner, to the disturbance of others,
and with any use of unlawful force or violence by them or any of them against
another person, or causing property damage.” § 723.1. An “unlawful assembly”
was “three or more persons assembled together, with them or any of them acting in
a violent manner, and with intent that they or any of them will commit a public
offense.” § 723.2. The touchstone for both is violence. See Williams v. Osmundson,
281 N.W.2d 622, 624–25 (Iowa 1979) (construing § 723.1).
The officers do not point to any “facts and circumstances within their . . .
knowledge” suggesting that the individual plaintiffs participated in the riots or
unlawful assemblies, let alone that they were violent. Brinegar v. United States, 338
U.S. 160, 175–76 (1949) (discussing probable cause standard). And “mere presence
at the scene of a riot” or unlawful assembly “is not punishable.” Williams, 281
N.W.2d at 624; see also Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (“[A] person’s
mere propinquity to others independently suspected of criminal activity does not,
without more, give rise to probable cause to search [or seize] that person.”). So the
officers lacked actual and arguable probable cause to arrest the plaintiffs for
violating § 723.1 or § 723.2. See Welch v. Dempsey, 51 F.4th 809, 813 (8th Cir.
2022).

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That’s where Iowa’s failure to disperse statute comes in. An officer “may
order the participants in a riot or unlawful assembly or persons in the immediate
vicinity of [one] to disperse.” § 723.3. Anyone “within hearing distance” of the
command commits a misdemeanor if she “refuses to obey.” Id. But the officers
have not shown that each plaintiff was within earshot of an order to disperse and
refused. Cf. Small v. McCrystal, 708 F.3d 997, 1004 (8th Cir. 2013) (denying
qualified immunity where, according to plaintiff, officers did not order him to
disperse). Instead, they argue that they could reasonably assume that anyone who
was in the downtown area after they broadcast dispersal orders at the Capitol and
police station had participated in the unlawful gatherings and had failed to disperse.
“The breadth of the officers’ position illustrates the obviousness of its
shortcoming.” Bell v. Neukirch, 979 F.3d 594, 609 (8th Cir. 2020). The district
court found that “officers did nothing to control ingress or egress to the area,” so it
wasn’t just looters and rioters filling the streets of downtown Des Moines—an area
home to apartment buildings, hotels, and a lively bar scene. There were people going
about their normal lives. Even among the protesting crowds, many were “merely
standing around, mingling and dancing.” No reasonable officer would have believed
that every person he encountered hours after giving dispersal orders and blocks away
had violated Iowa law.
To skirt the general requirement that “a search or seizure of a person must be
supported by probable cause particularized with respect to that person,” Ybarra, 444
U.S. at 91 (emphasis added), the officers point us to Bernini v. City of St. Paul, 665
F.3d 997 (8th Cir. 2012). In Bernini, we found that a “mass arrest” may be
constitutional where police have “grounds to believe all arrested persons were a part
of the unit observed violating the law.” Id. at 1003 (quoting Carr v. District of
Columbia, 587 F.3d 401, 407 (D.C. Cir. 2009)). In other words, “[w]here there is a
unit, the Fourth Amendment does not require a probable cause determination with
respect to each individual in a large and potentially riotous group before making

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arrests.” Baude v. Leyshock, 23 F.4th 1065, 1072 (8th Cir. 2022) (cleaned up)
(quoting Bernini, 665 F.3d at 1003).
But this isn’t Bernini. There, outnumbered officers confronted a group at the
intersection of a busy roadway who “chanted in unison, lined up directly across from
the police, donned gasmasks and other face coverings as if preparing for a
confrontation, and were otherwise acting or moving as a unit or group.” Baude, 23
F.4th at 1072 (cleaned up) (quoting Bernini, 665 F.3d at 1004). Because it was
“impractical for [the officers] to detain immediately the dozens of individuals
present at the intersection,” we said that it was reasonable for them to move the unit
to a park and make a “mass arrest.” Bernini, 665 F.3d at 1004–05. As they did, the
unit began to envelop innocent bystanders. Id. Given the actions of the unit and the
exigencies, we held that the officers’ allegedly mistaken belief that some of the
plaintiffs caught up in the move were part of the unit was objectively reasonable. Id.
The officers did not act indiscriminately. Once they got to the park, they tried to
figure out “who had been part of the unit at the intersection and released” about half
of those seized. Id.
The plaintiffs here did not move as a unit primed for confrontation—they were
among the many people “freely entering and exiting the area.” Baude, 23 F.4th at
1072–73 (rejecting claim that “a few people noisily proclaiming their constitutional
right to assemble, but others who were generally gawking and milling about, others
on bikes riding through the area, some people sitting on the street and on the
sidewalk, and even a person pushing a baby in a stroller” was a “unit”). Any units
that may have formed at the Capitol and police station protests had long since
disbanded. And the plaintiffs were not scooped up in a mass arrest. They were
found scattered around the Court Avenue area hours after the protests. Cf. Bernini,
665 F.3d at 1005; Baude, 23 F.4th at 1070–73 (mass arrest following kettling).
The officers remind us that “[p]robable cause is not a high bar: It requires
only the kind of fair probability on which reasonable and prudent people, not legal
technicians act.” Bell, 979 F.3d at 603 (cleaned up) (quoting Kaley v. United States,

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571 U.S. 320, 338 (2014)). They leave out the rest: “But it is a bar.” Id. Mere
presence blocks from where police earlier ordered protesters to disperse does not
clear it.
Nor is it arguable probable cause. Baude, 23 F.4th at 1073 (holding that the
“assertion that they had probable cause or arguable probable cause to believe some
members of [a] crowd violated laws earlier in the day and that ‘many’ were
apparently violating the law by refusing to disperse is insufficient to establish a ‘unit’
that may justify a mass arrest as a matter of law”). Police cannot enjoy the
protections of qualified immunity “by alleging that ‘the unlawful acts of a small
group’ justify the arrest of the mass.” Id. (quoting Bernini, 665 F.3d at 1005); see
also Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006) (affirming denial of qualified
immunity to officer who ordered the “indiscriminate arrest” of hundreds based on
the illegal acts of a small group of protesters).
Shades of this blanket probable cause argument color the officers’ individual
challenges. We turn to what remains of each.
B. Klingenberg
Des Moines Officers Herman, Holtan, and McCarthy challenge the district
court’s denial of qualified immunity on Klingenberg’s unlawful seizure claim. We
affirm.
Drawn downtown by the chaos, Klingenberg and a small group were on the
top floor of a parking garage about a block east of the Hy-Vee. At 2:40 a.m., the riot
at the store drew officers their direction, so the group left. On his way down,
Klingenberg ran into a team of officers who told him to “get outta here.” He thanked
one officer for his work, confirmed that no one else was on the roof, and complied
with the order. As he passed a second group of officers, he raised his hands and said
that he was leaving. No one tried to stop him—until he left the garage. He first
passed Officer McCarthy without incident and then Officers Herman and Holtan.

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Officer McCarthy says that his two colleagues told him that Klingenberg “was
involved in this stuff” and “need[ed] to be put in cuffs,” so he arrested him.
As the district court noted, “[b]eyond his mere presence, . . . the record is
devoid of any reason why [the officers] believed Klingenberg should be arrested.”
Officers Holtan and Herman could not say where or when they had seen Klingenberg
being “involved in this stuff,” and they never questioned him. They also ignored
“readily available” exculpatory evidence: he was “more than one block east of the
unruly crowd at Hy-Vee” and in the opposite direction from where that crowd
dispersed when officers arrived. Relying on Johnson v. City of Minneapolis, the
court found that the facts, when viewed in the light most favorable to Klingenberg,
made this the “paradigmatic case where probable cause is lacking.” 901 F.3d 963,
971 (8th Cir. 2018). And it concluded that a jury could find that it was unreasonable
for Officer McCarthy to arrest Klingenberg on his fellow officers’ instructions.
The officers ignore the court’s reasoning and instead advance their own view
of the facts. They say that Klingenberg “lingered in the area for several minutes
before he walked right in front of law enforcement officers who immediately
suspected him of engaging in illegal conduct.” Taken in Klingenberg’s favor, of
course, the record says otherwise. He was trying to leave the area. And walking by
officers doesn’t cut it. It should go without saying that an officer lacks probable
cause to arrest someone he hasn’t observed do anything wrong. See id. at 970
(“[T]he bread and butter of arguable probable cause is some observation—either by
officers personally or by an eyewitness or victim whose account is communicated to
officers—of the actus reus of a potential crime.”). There was no observation here.
All told, the “quantum of facts ‘within [Officers Holtan and Herman’s] knowledge’
were only a shade above wrong place, wrong time.” Id. at 969 (quoting Michigan v.
DeFillippo, 443 U.S. 31, 37 (1979)).
For his part, Officer McCarthy argues that he was just following instructions
to arrest Klingenberg and reasonably relied on the “collective knowledge” of his
fellow officers to justify it. See Doran v. Eckold, 409 F.3d 958, 965 (8th Cir. 2005)

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(en banc) (“[L]aw enforcement officers may rely on information provided by others
in the law enforcement community, so long as the reliance is reasonable”). We
disagree. What he received was a “vague, conclusory statement”—that Klingenberg
was “involved in this stuff”—which was neither an observation of a criminal act nor
“[]sufficiently specific to support” the arrest. Chestnut v. Wallace, 947 F.3d 1085,
1092 (8th Cir. 2020) (affirming denial of qualified immunity where “[t]he only
relevant information relayed” to officer was that plaintiff was “suspicious”). We
affirm the denial of qualified immunity to Officers Herman, Holtan, and McCarthy
against Klingenberg.
C. Petefish
Des Moines Officer Lawler challenges the district court’s denial of qualified
immunity on Petefish’s unlawful seizure claim. We dismiss his appeal for lack of
jurisdiction.
Like Klingenberg, Petefish wanted to watch the protests, so he stood on a
bench for a better vantage point. A few people were around him, but none were
“holding protest signs or doing anything illegal.” Five officers, including Lawler,
crossed the street toward the group and told them to go home. The district court
found that there was no evidence that Petefish was present for any protests or heard
any dispersal orders before this interaction. And the officers did not see Petefish do
“anything violent, threatening, or otherwise illegal”—he “was more than two blocks
away from the unlawful group at Hy-Vee.” So “[a]t most,” he “simply walked
around in a roughly one-block area” before “turning to leave immediately after being
directed by officers to do so.”
As Petefish was leaving, someone next to him was pepper sprayed. Turning
around, he asked, “What the fuck did he do wrong?” He was then sprayed, pushed
to the ground, and handcuffed by someone. Officer Lawler “took custody” of
Petefish and walked him to a police van for transport. He argues that he merely
acted “at the direction of others” and did not personally participate in the arrest. But

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those facts are disputed. The district court found that, while Petefish appeared to
concede that Officer Lawler was not the one who handcuffed or pepper sprayed him,
it wasn’t clear where Officer Lawler was or what he was doing during the arrest.
Section 1983 liability “is personal,” Doran, 409 F.3d at 965, but it is not
limited to the officer who puts on the handcuffs. It extends to all defendants who
“personally participated” in the plaintiff’s arrest. See White v. Jackson, 865 F.3d
1064, 1081 (8th Cir. 2017) (finding that officer personally participated in arrest
where he observed it and yelled at plaintiff to “stop resisting” and plaintiff leaned
against his leg after being handcuffed). The district court’s finding that there was a
genuine dispute of material fact about “the extent of [Officer] Lawler’s involvement
in the arrest” is not “blatantly contradicted by the record,” Scott v. Harris, 550 U.S.
372, 380 (2007), so we lack jurisdiction to review it, Welch v. Dempsey, 51 F.4th
809, 812 (8th Cir. 2022).
D. Lard & DeBrossard
Captain Hardy and Officers Egan, Betts, Gruver, Valentine, and
Coughennower challenge the denial of qualified immunity on Lard’s and
DeBrossard’s unlawful arrest claims. Officers Betts and Coughennower also
challenge the denial of qualified immunity on Lard’s excessive force claim. The
record here is sharply disputed and the officers disagree with the district court’s
findings that genuine disputes of material fact prevented it from deciding whether
there was probable cause for the arrests and whether pepper spraying Lard was
justified—findings that the record does not “plainly foreclose[].” Taylor v. St. Louis
Cmty. Coll., 2 F.4th 1124, 1127 (8th Cir. 2021). To reach the legal issues, “we would
have to exceed our jurisdiction and cast aside the district court’s factual findings,
analyze the factual record, and resolve genuine disputes against [Lard and
DeBrossard].” Id. We dismiss these appeals for lack of jurisdiction.

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E. The Patton Group
Des Moines Officers Holtan, Armstrong, Hedlund, Chiodo, and Herman argue
that the district court erred by denying them qualified immunity and by granting
summary judgment to Patton, Lewis, Johnson, Timberlake, Jacobsen, and Young on
their unlawful seizure claims. We affirm the judgments.2
A police van passed the Patton group as they were walking two blocks north
of Court Avenue around 3:20 a.m.—when officers had regained “complete and total
control of the streets.” The Patton group says someone yelled at the van, but the
officers say they shouted expletives and made crude gestures. The van stopped, and
out poured several officers who immediately arrested the group. The plaintiffs say
that they were heading to Patton’s apartment across the street.
The officers argue that three facts support probable cause: (1) the Patton
group was “walking together and hurling expletives”; (2) an unknown officer
“recognized the group from earlier”; and (3) Patton’s address on his ID did not match
the building across the street. First, walking and shouting expletives at a police van
does not alone provide arguable probable cause to make an arrest. Cf. City of
Houston v. Hill, 482 U.S. 451, 462–63 (1987) (“The freedom of individuals verbally
to oppose or challenge police action without thereby risking arrest is one of the
principal characteristics by which we distinguish a free nation from a police state.”).
Second, we agree with the district court that the comment from an unnamed officer
is “so vague and unsubstantiated” that even in that moment, a reasonable officer
should have known that it was insufficient to support probable cause. See Chestnut,
947 F.3d at 1090. No exigency would have prevented even minimal investigation.
Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.1999) (“[P]robable cause does not exist
when a ‘minimal further investigation’ would have exonerated the suspect.”
2 It is unclear whether Officer Wilshusen appeals the denial of qualified
immunity on Lewis’s unlawful arrest claim. If he does, we affirm. See United States
v. Wearing, 837 F.3d 905, 910 n.6 (8th Cir. 2016) (per curiam) (arguments not
sufficiently developed in opening brief are deemed waived).

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(citation omitted)). And third, the officers do not dispute that they discovered
Patton’s mismatching identification after the arrests, so it is irrelevant. Hernandez
v. Mesa, 582 U.S. 548, 554 (2017) (“Facts an officer learns after the incident ends . . .
are not relevant” to the qualified immunity analysis.).
Even viewing the facts in the light most favorable to the officers, the district
court got it right: the Patton group “were not present for any protests or ever ordered
to disperse, yet they were arrested and hauled to jail overnight for simply parking a
car and walking toward Patton’s apartment.” The material facts show that the
officers subjected them to warrantless arrests unsupported by arguable probable
cause, meaning they violated their clearly established rights. The court properly
denied qualified immunity and granted summary judgment to the Patton group
against Officers Holtan, Armstrong, Hedlund, Chiodo, and Herman.
F. Malicious Prosecution
Switching gears, the Des Moines officers challenge the district court’s denial
of qualified immunity on all 12 plaintiffs’ malicious prosecution claims. Presented
with “perfunctory” briefing and an “underdeveloped” record, it concluded that the
defendants had not “established sufficient undisputed facts to warrant summary
judgment.” See White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008). We agree.
When the plaintiffs were arrested, the law was clear: a malicious prosecution
claim was only cognizable under § 1983 if the “alleged wrongful conduct . . . also
infringe[d] ‘some provision of the Constitution or federal law.’” Martin v. Julian,
18 F.4th 580, 584 (8th Cir. 2021) (citation omitted); Kurtz v. City of Shrewsbury,
245 F.3d 753, 758 (8th Cir. 2001). The Des Moines defendants took a more
categorical approach below. They argued that malicious prosecution claims “do not
exist” under federal law. That was wrong. Before the Des Moines defendants
moved for summary judgment, the Supreme Court held that malicious prosecution
is actionable under the Fourth Amendment. Thompson v. Clark, 596 U.S. 36, 43

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(2022) (stating that the “gravamen” of the claim “is the wrongful initiation of charges
without probable cause”).
Conceding that malicious prosecution is a viable § 1983 claim, the defendants
argued below that the plaintiffs had not shown “actual malice” under Iowa law. See
Vander Linden v. Crews, 231 N.W.2d 904, 905 (Iowa 1975) (establishing that
plaintiffs must make an “affirmative showing” that prosecution was “primarily
inspired by ill-will, hatred or other wrongful motives”). The district court noted that
“the record reveals very little about what happened between the night of the arrests
and the eventual dismissal of charges.” And it concluded that the standard under the
Fourth Amendment differs from Iowa law—a jury can infer malice from a lack of
probable cause. See Thompson, 596 U.S. at 44 (observing that as of 1871, American
courts often defined “malicious” motivation to prosecute as “without probable cause
and for a purpose other than bringing the defendant to justice”); Luke v. Gulley, 50
F.4th 90, 97 (11th Cir. 2022) (observing that as of 1871, “proof of the absence of
probable cause allowed a jury to infer malice for the common-law tort of malicious
prosecution”).
On appeal, the defendants do not engage with the court’s analysis of federal
and Iowa law, and we will not make their arguments for them. See Sturgis
Motorcycle Rally, Inc. v. Rushmore Photo & Gifts, Inc., 908 F.3d 313, 324 (8th Cir.
2018). Instead, they argue for the first time that it was not clearly established that a
standalone malicious prosecution claim is cognizable under § 1983. See Wallace v.
Taylor, No. 22-20342, 2023 WL 2964418, at *6 (5th Cir. Apr. 13, 2023) (observing
that a claim it had “expressly not recognized is the antithesis of a clearly established
one” (cleaned up)). And they mount several new substantive attacks. While we
ordinarily do not consider newly raised arguments, we may exercise our discretion
to do so “if it is purely legal and requires no factual development, or if a manifest
injustice would otherwise result.” Combs v. The Cordish Cos., Inc., 862 F.3d 671,
678–79 (8th Cir. 2017) (citation omitted). But “[i]t is old and well-settled law that
issues not raised in the trial court cannot be considered by this court as a basis for
reversal.” Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 724 (8th Cir. 1976)

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(emphasis added); see also Meinen v. Bi-State Dev. Agency, 101 F.4th 947, 951 n.3
(8th Cir. 2024). Because that is what the Des Moines defendants ask here, we
decline to address the appropriate standard for malice under the Fourth Amendment,
the other substantive arguments, and whether the claim was clearly established.
G. The Phone Seizures
The final issue in the Des Moines defendants’ appeal involves phone seizures.
When Lard, DeBrossard, Patton, Johnson, Young, and Lewis got to the jail, Officer
Youngblut seized their phones for two days—“Terry-stop style.” The district court
denied Officer Youngblut qualified immunity on Lard and DeBrossard’s
unreasonable seizure claims and granted summary judgment to Patton, Young,
Johnson, and Lewis. We affirm the judgments.
The Fourth Amendment allows the warrantless seizure of private property
where police can establish that probable cause exists to believe that it contains
“contraband or evidence of a crime” and that a warrant exception applies. United
States v. Place, 462 U.S. 696, 701 (1983). Extending the reasoning of Terry v. Ohio,
392 U.S. 1 (1968), in a line of luggage-seizure cases, the Supreme Court created a
narrow carveout to this general rule. “[F]or limited investigative purposes,” police
may “briefly detain” personal effects on reasonable suspicion alone if the seizure is
“so minimally intrusive of Fourth Amendment interests that strong countervailing
governmental interests” justify it. Place, 462 U.S. at 705–06.
Officer Youngblut argues that he had reasonable suspicion to seize the phones
because it was “logical to believe” that they held evidence of a crime given how
people tend to use smart phone cameras and “the nature of the property destruction,
looting, vandalism, and related riotous behavior” on May 31. But he does not point
to any evidence showing that officers saw the plaintiffs taking videos of the events
or participating in violent behavior. Nor does he identify the governmental interest
in seizing the phones. We assume that it is “effective crime prevention and
detection,” id. at 704, in the face of what he calls “ongoing unrest and rioting.” A

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strong interest. But it does not outweigh the degree of intrusion on the plaintiffs’
Fourth Amendment interests, which is greater here than in Place.3 After all, it is “no
stretch to hazard that a modern-day traveler would likely rather arrive in a strange
place without her luggage than without her phone.” Robbins v. City of Des Moines,
984 F.3d 673, 681 (8th Cir. 2021) (quoting United States v. Babcock, 924 F.3d 1180,
1191 (11th Cir. 2019)); cf. Riley v. California, 573 U.S. 373, 393–94 (2014)
(observing that cell phones are “minicomputers” that can reconstruct “[t]he sum of
an individual’s private life” and so “differ in both a quantitative and a qualitative
sense from other objects that might be kept on an arrestee's person”).
Though the Court “decline[d] to adopt any outside time limitation” in Place,
“the brevity of the invasion” dominated the analysis. 462 U.S. at 709. And as in
Place, the length of the detention here “alone precludes” finding that the phone
seizures were reasonable absent probable cause. Id. at 709–10 (90-minute seizure
of luggage unreasonable); see Babcock, 924 F.3d at 1192 (two-day seizure of cell
phone unreasonable). Officer Youngblut’s lack of diligence doesn’t help. The
district court found nothing in the record that shows he “or any other officer did
anything on May 31 to start the process of trying to obtain warrants for any of the
cell phones.” And he provides no justification on appeal beyond a belated realization
that “it would be very difficult, even with a warrant, for [officers] to be able to access
information on the phones.” Cf. Robbins, 984 F.3d at 681 (finding lack of diligence
in part based on officer’s comment that he would apply for a warrant “at some
point”); Missouri v. McNeely, 569 U.S. 141, 172–73 (2013) (Roberts, C.J.,
concurring in part and dissenting in part) (describing how fast the warrant request
process is).
3 We assume without deciding that the Court’s reasoning applies equally to
cell phones. See Robbins v. City of Des Moines, 984 F.3d 673, 681 (8th Cir. 2021);
United States v. Babcock, 924 F.3d 1180, 1188 (11th Cir. 2019) (observing that “any
detention of property based on reasonable suspicion must be fairly analogous to a
Terry stop, regardless of the item at issue”).

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The seizure of the plaintiffs’ phones exceeded “the narrow authority . . . to
detain briefly” private property on reasonable suspicion alone. Place, 462 U.S. at
710. Officer Youngblut’s inability to advance more than threadbare claims of
“specific and articulable facts,” Terry, 392 U.S. at 21, only underscores the violation.
Unless he had arguable probable cause to seize the phones, he violated the plaintiffs’
clearly established right to be free from unreasonable seizures of their property and
is not entitled to qualified immunity. See Robbins, 984 F.3d at 681. Officer
Youngblut argues that he has it because there was probable cause to arrest each
plaintiff. As we have just discussed, the officers lacked even arguable probable
cause to arrest Patton, Johnson, Young, and Lewis, so we affirm the denial of
qualified immunity to Officer Youngblut and the grant of summary judgment to the
plaintiffs on their phone seizure claims. And because probable cause is disputed in
Lard’s and DeBrossard’s cases, we affirm the denial of qualified immunity to Officer
Youngblut.
***
As the district court observed, “[p]olice work is difficult, particularly in times
of civil unrest.” But the Constitution puts “limits on what law enforcement officers
can do,” and they “can be held liable in some instances when those Constitutional
boundaries are crossed.” For the benefit of the district court and the parties, we recap
our rulings.
• We affirm the denial of qualified immunity to Officers Herman, Holtan,
and McCarthy on Klingenberg’s unlawful arrest claim;
• We dismiss Officer Lawler’s appeal from the denial of qualified immunity
on Petefish’s unlawful arrest claim;
• We dismiss Captain Chris Hardy and Officers Egan, Betts, Gruver,
Valentine, and Coughennower’s appeal from the denial of summary
judgment on Lard’s and DeBrossard’s unlawful arrest claims;
• We dismiss Officers Betts and Coughennower’s appeal from the denial of
qualified immunity on Lard’s excessive force claim;

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• We affirm the grant of summary judgment to Patton, Lewis, Johnson,
Timberlake, Jacobsen, and Young on their unlawful arrest claims against
Officers Holtan, Herman, Armstrong, Hedlund, Chiodo, and Wilshusen;
• We affirm the denial of qualified immunity to the Des Moines defendants
on the plaintiffs’ malicious prosecution claims;
• We affirm the grant of summary judgment to Patton, Johnson, Young, and
Lewis on their unreasonable seizure claims against Officer Youngblut; and
• We affirm the denial of qualified immunity to Officer Youngblut on Lard’s
and DeBrossard’s unreasonable seizure claims.
III. Polk County Deputy Smith’s Appeal
Deputy Smith challenges the district court’s denial of qualified immunity on
Timberlake’s unlawful arrest claim.4 We reverse and direct the court to enter
judgment in favor of Deputy Smith based on qualified immunity.
Timberlake was part of the Patton group, and Deputy Smith was in the police
van that stopped nearby. But Timberlake admits that Deputy Smith wasn’t one of
the “initial officers who approached the group,” and everyone was arrested “within
thirty seconds or so of [the officers] encountering them.” Deputy Smith testified
that “[t]here were people ahead of me so I think as they approached the initial six,
everybody just kind of went down the line and somebody put [Timberlake] in wrist
restraints.” When he got to Timberlake, he says, she’d already been arrested. He
testified that he only “stepped up” to hold her arm so she wouldn’t run. The
4 Deputy Smith also challenges the denial of summary judgment as to punitive
damages on Timberlake’s false arrest claim. Timberlake argues that we lack
jurisdiction because it is not “inextricably intertwined” with his defense of qualified
immunity. Veneklase v. City of Fargo, 78 F.3d 1264, 1269 (8th Cir. 1996). Deputy
Smith does not resist, and we will not make his argument for him. See Webster v.
Westlake, 41 F.4th 1004, 1009 (8th Cir. 2022) (declining to reach the “inextricably
intertwined” question where appellants “did not meet their burden to show appellate
jurisdiction”), so we dismiss this part of Deputy Smith’s appeal.

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testimony lines up with the court’s finding that he “held onto Timberlake for three
to five minutes after she had already been arrested and restrained by another officer
to ensure she did not flee.”
Unlike Officer Lawler and Petefish, the district court did not find that factual
disputes about Deputy Smith’s involvement in Timberlake’s arrest precluded
granting qualified immunity. Rather, the court denied qualified immunity because
it could not tell whether he arrived on scene late enough to be “entitled to assume”
that the other officers had made “an appropriate probable cause inquiry” before he
took custody of Timberlake. The issue boils down to whether it was clearly
established that Deputy Smith had an independent duty to ensure the arrest was
lawful before taking post-arrest custody of Timberlake.
Timberlake has not pointed to any controlling authority or robust consensus
of persuasive authority that “‘squarely governs’ the facts here” and puts the
constitutional question “beyond debate.” Mullenix v. Luna, 577 U.S. 7, 15–16,
(2015) (per curiam) (citations omitted); see Molina v. City of St. Louis, 59 F.4th 334,
343–44 (8th Cir. 2023) (in a First Amendment retaliation case, holding that jury
could infer each officer inside armored car from which unknown officer launched
tear-gas canister either participated in decision or else failed to intervene); Provost
v. City of Newburgh, 262 F.3d 146, 155–56 (2d Cir. 2001) (finding insufficient
evidence for jury verdict that supervisor—who told officer to “handle” dispute and
stood “a few feet away” during arrest—“personally participated” in arrest because it
would be mere “speculation” to say he was “aware of the facts surrounding” it).
And we do not think the cases in this area would have put Deputy Smith on
notice that his post-arrest conduct was unlawful. See, e.g., Bell v. Neukirch, 979
F.3d 594, 603 (8th Cir. 2020) (reiterating that “[t]he existence of probable cause
‘depends upon the reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest’” (emphasis added) (quoting Devenpeck,
543 U.S. at 152)); Mitchell v. Shearrer, 729 F.3d 1070, 1073 (8th Cir. 2013) (noting
that there was no evidence officers who arrived during “scuffle” with plaintiff and

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“assisted [officer] in subduing and handcuffing” plaintiff were “involved in the
decision to arrest” or “knew or should have known that the seizure was unlawful”);
Garionis v. Newton, 827 F.2d 306, 310 (8th Cir. 1987) (observing that “a person
who is already under arrest and in police custody cannot be ‘rearrested’” and finding
“no need for probable cause” when officer “took custody” of plaintiff); Coleman v.
Gillespie, 424 F. App'x 267, 270 (5th Cir. 2011) (explaining that “transfer of an
arrestee from the custody of one officer to another does not effect a separate arrest
or seizure” unless “the second officer performs his own full investigation before
independently deciding whether to take custody of the suspect”). Based on this lack
of authority, we reverse the district court’s denial of qualified immunity to Deputy
Smith.
IV. Dunn and Fugate’s Cross-Appeal
We finish with the cross-appeal. The district court granted qualified immunity
to Officer Holtan on Dunn’s and Fugate’s unlawful arrest claims and to Deputy
Callahan on Fugate’s unlawful arrest claim. We affirm.
Just before 3:00 a.m., about 20 minutes after the Hy-Vee looters scattered,
Dunn and Fugate parked near the Savery Hotel, a couple of blocks north of Court
Avenue. After they got out of the car, Officer Holtan ordered them to disperse.
Dunn responded that they were just going to their hotel and then shouted, “we’re
walking to our fucking hotel!” Dunn, Fugate, and a friend left the hotel about an
hour later. Officer Holtan recognized the “heckler[s]” as they made their way to the
car, so he, Deputy Callahan, and others approached to arrest them for failing to
disperse. Dunn and Fugate started to get in the car, but their friend bolted.
The district court properly found that Officer Holtan and Deputy Callahan had
at least arguable probable cause for the arrests. Recall that Iowa’s failure to disperse
misdemeanor requires that plaintiffs (1) be “participants in” or “in the immediate
vicinity of a riot or unlawful assembly”; (2) be “within hearing distance of” a
command to disperse, and (3) “refuse[] to obey.” § 723.3.

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Dunn and Fugate concede that they heard the dispersal order—a fact that
separates them from the other plaintiffs. But they argue that they were not
“participants in” or “in the immediate vicinity of” the Hy-Vee unrest, id., which
would undermine the lawfulness of the command. They cite no authority
interpreting § 723.3 that places such constraints on an officer’s ability to issue a
dispersal order. Even if the order was in fact unlawful, the question was not “beyond
debate.” Mullenix, 577 U.S. at 12 (per curiam). The only issue remaining is whether
an officer could reasonably believe that Dunn and Fugate had refused to disperse.
They argue that no officer could have viewed their getting into the car as anything
but dispersing. But an officer seeing them in the same place an hour after giving the
command could reasonably conclude that Dunn had lied about going to the hotel and
that the two had instead refused to disperse—that is, they had missed their chance to
comply.
Officer Holtan and Deputy Callahan may have been mistaken in believing that
they had probable cause, but that belief was not objectively unreasonable. Because
they had arguable probable cause to arrest Dunn and Fugate under § 723.3, they are
entitled to qualified immunity.
V.
We affirm in part, dismiss in part, reverse in part, and remand for proceedings
consistent with this opinion.
KELLY, Circuit Judge, concurring in part and dissenting in part.
I concur in the court’s well-reasoned opinion in all respects but one: I would
affirm the denial of qualified immunity to Deputy Smith. As the district court
explained, Deputy Smith might have arrived at the Patton group arrest “late enough
to be entitled to assume the other officers had made an appropriate probable cause
inquiry. Conversely, he might have seen enough to know there was no lawful basis

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for arrest.” Viewing the facts in the light most favorable to Timberlake, Peterson,
89 F.4th at 633, Deputy Smith knew he lacked probable cause when he participated
in her arrest. On this record, the district court properly denied qualified immunity on
Timberlake’s claim. For this reason, I respectfully dissent from Part III of the court’s
opinion.
______________________________

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