Levi Wilson, Individually; M W, by and through his next friend Levi Wilson v. Scott Lamp, in his individual

United States Court of Appeals
For the Eighth Circuit
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No. 20-1674
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Levi Wilson, Individually; M W, by and through his next friend Levi Wilson
Plaintiffs - Appellants
v.
Scott Lamp, in his individual and official capacity; Iowa, State of; Jessica Dorhout-
VanEngen, in her individual and official capacity; John Doe, in his individual and
official capacity
Defendants - Appellees
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Appeal from United States District Court
for the Northern District of Iowa - Western
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Submitted: March 18, 2021
Filed: April 26, 2021
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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BENTON, Circuit Judge.
Levi Wilson and his son M.W. sued three police officers under 42 U.S.C. §
1983 alleging violations of the Fourth Amendment, violation of the Iowa
Constitution, and common law invasion of privacy. The district court denied

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summary judgment, but this court reversed in part and remanded for trial. Wilson v.
Lamp (“Wilson I”), 901 F.3d 981, 991 (8th Cir. 2018).
On remand, the district court held a trial on the state law claims, as well as the
federal excessive force claim. On the state claims—invasion of privacy and Iowa
illegal search or seizure—the district court1 granted judgment as a matter of law.
The jury found for defendants on the excessive force claims. Plaintiffs appeal.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
At the close of trial, the district court granted defendants’ Rule 50(a) motion
for judgment as a matter of law on the invasion of privacy and Iowa search and
seizure claims.
Rule 50(a) permits dismissal when ‘there is no legally sufficient
evidentiary basis for a reasonable jury to find for’ the non-moving party
at the close of that party’s evidence. We have on numerous occasions
spelled out in detail the criteria for the grant of such motions. In Dace
v. ACF Industries, Inc., 722 F.2d 374 (8th Cir. 1983), for example, we
stated that, in considering a motion for directed verdict or for j.n.o.v.,
the court must: (1) resolve direct factual conflicts in favor of the
nonmovant, (2) assume as true all facts supporting the nonmovant
which the evidence tended to prove, (3) give the nonmovant the benefit
of all reasonable inferences, and (4) deny the motion if the evidence so
viewed would allow reasonable jurors to differ as to the conclusions
that could be drawn. Id. at 375.
Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1080 (8th Cir. 1999).
The district court later denied motions for a new trial on the invasion of
privacy and Iowa search and seizure claims. “In determining whether a verdict is
1 Honorable Leonard T. Strand, United States District Chief Judge for the
Northern District of Iowa.

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against the weight of the evidence, the trial court can rely on its own reading of the
evidence—it can weigh the evidence, disbelieve witnesses, and grant a new trial
even where there is substantial evidence to sustain the verdict.” White v. Pence, 961
F.2d 776, 780 (8th Cir. 1992) (quotation omitted). “[G]reat deference is to be
accorded the trial judge’s decision in such rulings.” Id. at 781.
A.
Plaintiffs argue the district court erred in dismissing their Iowa unreasonable
search and seizure claims as a matter of law.
Iowa’s constitutional protections from unreasonable searches and seizures
may extend beyond the reach of the Federal Constitution. “[T]he Supreme Court’s
jurisprudence regarding the freedom from unreasonable searches and seizures under
the Fourth Amendment—or any other fundamental, civil, or human right for that
matter—makes for an admirable floor, but it is certainly not a ceiling.” State v.
Baldon, 829 N.W.2d 785, 791 (Iowa 2013). See also Schmidt v. State, 909 N.W.2d
778, 793 (Iowa 2018) (same).
Iowa, however, applies the federal “reasonable articulable suspicion”
analysis. “The Iowa Supreme Court usually views the ‘Iowa Constitution’s search
and seizure provisions to track with federal interpretations of the Fourth
Amendment.’” McElree v. City of Cedar Rapids, 983 F.3d 1009, 1015 n.4 (8th Cir.
2020), quoting State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019), quoting State v.
Christopher, 757 N.W.2d 247, 249 (Iowa 2008). See also State v. Struve, No. 19-
1614, 2021 WL 646466, at *2 (Iowa Feb. 19, 2021) (explaining Iowa reasonable
suspicion analysis tracks federal law). Numerous Iowa cases confirm that the Terry
doctrine is coextensive between the state and federal constitutions. See, e.g., State
v. Coleman, 890 N.W.2d 284, 301 (Iowa 2017) (allowing limited investigatory
detention until there is “no other basis for reasonable suspicion,” but requiring traffic
stops to end “after the resolution of the reason for the stop”); State v. Bergmann,
633 N.W.2d 328, 333-34 (Iowa 2001) (upholding “immediate vicinity pat downs

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where the officer . . . . limited his search to what was minimally necessary to learn
whether [the suspect was] armed”); State v. DeWitt, 811 N.W.2d 460, 468 (Iowa
2012) (police may “temporarily detain[] an individual when they have reasonable
grounds to believe criminal activity is afoot”), citing Terry v. Ohio, 392 U.S. 1, 30
(1968); State v. Tague, 676 N.W.2d 197, 204 (Iowa 2004) (“To justify such a
stop . . . and briefly detain [a suspect] for investigatory purposes, the police need
only have reasonable suspicion, not probable cause, to believe criminal activity has
occurred or is occurring.”). “[A] stop supported by reasonable suspicion of criminal
activity must be minimally intrusive, but physical force used to detain a suspect
believed to be a threat to safety is reasonable if the force used is proportional to the
threat presented.” Dewitt, 811 N.W.2d at 470 (Iowa 2012).
Plaintiffs point to a false arrest case to argue that under Iowa law, a stop
requires probable cause. See Children v. Burton, 331 N.W.2d 673, 679 (Iowa 1983).
But “police may stop a moving automobile in the absence of probable cause to
investigate a reasonable suspicion that its occupants are involved in criminal
activity.” State v. Tyler, 830 N.W.2d 288, 298 (Iowa 2013). Here defendants’ stop
was investigatory, unlike the arrest in Burton. See State v. Kreps, 650 N.W.2d 636,
641 (Iowa 2002) (distinguishing arrest from investigatory stops). Unlike Tyler, the
officers could not observe whether Levi or David was driving the truck until after
the stop. See Tyler, 830 N.W.2d at 298 (explaining that the officer was able to read
the supposedly obscured license plate before stopping his suspect, so there “was no
longer a need for further investigation” because the “ambiguity was resolved”).
Finally, the standard for false arrest is generally the same under Iowa and federal
law. Compare Burton, 331 N.W.2d at 679 (holding an officer may lawfully make
an arrest with probable cause), with Arnott v. Mataya, 995 F.2d 121, 124 (8th Cir.
1993) ( (“If defendants in fact had probable cause to arrest [plaintiff], then
[plaintiff]’s claim for false arrest is barred.”).
This court previously reversed, granting summary judgment for the
defendants on the corresponding Fourth Amendment claims. Wilson I, 901 F.3d at
987. Iowa and federal law do not materially differ here. Thus, under the law of the

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case doctrine the district court correctly dismissed as a matter of law. See Thompson
v. Commissioner, 821 F.3d 1008, 1011 (8th Cir. 2016).
The plaintiffs argue the district court erred in placing the burden of proof on
them, since the burden is on the police under Iowa law to establish their actions were
reasonable. Even if plaintiffs were correct, any error would be harmless because the
issue was decided as a matter of law irrespective of the standard. See Shinseki v.
Sanders, 556 U.S. 396, 407 (2009) (“The federal ‘harmless-error’ statute, now
codified at 28 U.S.C. § 2111, tells courts to review cases for errors of law ‘without
regard to errors’ that do not affect the parties’ ‘substantial rights.’”). In Wilson I,
this court ruled that the defendants’ acts were reasonable as a matter of law. Wilson
I, 901 F.3d at 987. The substantive standard for search and seizure does not vary
between Iowa and federal law. Therefore, any error was harmless, since it would
not change the result: regardless of who theoretically must show the officers’
conduct was reasonable, the defendants did show their conduct was reasonable. As
this court previously held, the defendants’ evidence established their conduct was
reasonable as a matter of law. Id.
The district court did not err in granting judgment as a matter of law and
denying plaintiffs’ motion for a new trial on the state search and seizure claims.
B.
Plaintiffs argue the district court erred in dismissing their Iowa invasion of
privacy claim as a matter of law.
Iowa common law recognizes the tort of intrusion upon seclusion. “Iowa has
adopted the tort of invasion of privacy, as set forth in the Restatement (Second) of
Torts (1977), which provides the right to privacy can be invaded by ‘unreasonable
intrusion upon the seclusion of another.’” Koeppel v. Speirs, 779 N.W.2d 494 (Iowa
Ct. App. 2010), aff’d, 808 N.W.2d 177 (Iowa 2011). “One who intentionally
intrudes, physically or otherwise, upon the solitude or seclusion of another or his

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private affairs or concerns, is subject to liability to the other for invasion of privacy,
if the intrusion would be highly offensive to a reasonable person.” In re Marriage
of Tigges, 758 N.W.2d 824, 829 (Iowa 2008). “[A] claim of such invasion of privacy
depends ‘not upon a property right in the invaded place but upon whether the area
was one in which where was ‘a reasonable expectation of freedom from
governmental intrusion.” State v. Osborn, 200 N.W.2d 798, 805 (Iowa 1972). “It
is patently clear an automobile is a ‘constitutionally protected area’ . . . . The owner
harbors ‘a reasonable expectation’ that his individual privacy is protected against
certain kinds of governmental intrusion.” Id. at 805-06. See also State v. Eis, 348
N.W.2d 224, 226 (Iowa 1984) (“[V]ehicle occupants have a protected privacy
interest in freedom of movement that is invaded when the vehicle is stopped.”).
Plaintiffs cannot state a claim for intrusion upon seclusion because the
officers’ conduct was not a highly offensive intrusion on the private affairs or
concerns of plaintiffs. First, in Iowa, observation on a “public highway” or of a
person who appears in “public and open” is not an invasion of privacy. Davenport
v. City of Corning, 742 N.W.2d 605, *8 (Iowa Ct. App. 2007) (table op.), quoting
Restatement (Second) of Torts § 652B. Expectation of privacy in a vehicle is
similarly diminished. See State v. Storm, 898 N.W.2d 140, 145 (Iowa 2017)
(“Vehicles remain inherently mobile with reduced expectations of privacy, while
rapid roadside warrants are not yet a realistic option.”). Second, in Iowa, “an arrest
is lawful if the facts available to the officer at the time of arrest provide reasonable
ground for believing an indictable offense has occurred and the arrestee committed
it.” Veatch v. City of Waverly, 858 N.W.2d 1, 9 (Iowa 2015). Investigatory stops
are less invasive than arrests, so this rule logically applies here. See Tague, 676
N.W.2d at 201-02, 204-05 (articulating lower standard for investigatory stop than
arrest under Iowa constitution). Courts following the Restatement approach have
held that lawful police activity generally will not support of an invasion of privacy
claim. See Evans v. Detlefsen, 857 F.2d 330, 338 (6th Cir. 1988) (“If the arrest was
lawful in the sense it was supported by probable cause, there can have been no
invasion of privacy in effecting it.”), citing Simons v. Montgomery Cty. Police
Officers, 762 F.2d 30, 33 (4th Cir. 1985). The Iowa Supreme Court has given no

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indication it would hold otherwise. Since the stop of plaintiffs’ vehicle was lawful,
and there was no evidence of any accompanying highly offensive conduct by the
police, this court affirms the dismissal of the intrusion on seclusion claim.2
The district court did not err in granting judgment as a matter of law and
denying plaintiffs’ motion for a new trial on the invasion of privacy claim.
II.
Plaintiffs argue the district court improperly instructed the jury on the
elements of Fourth Amendment and Iowa Constitution excessive force claims.
This court reviews jury instructions for abuse of discretion. The Shaw Group,
Inc. v. Marcum, 516 F.3d 1061, 1068 (8th Cir. 2008).3 Reversal is warranted only
if a party’s substantial rights are prejudiced. Burry v. Eustis Plumbing & Heating,
Inc., 243 F.3d 432, 434 (8th Cir. 2001).
A.
The district court instructed the jury that they must find three elements to
decide for plaintiffs on their excessive force claim: the officers continued to point
their guns at the plaintiffs (1) after the officers recognized the driver was Levi, not
David; (2) after Levi was patted down; and (3) after the defendants realized a child,
M.W., was in the truck. See Wilson I, 901 F.3d at 990. Plaintiffs argue the district
court should have instead provided the Eighth Circuit model jury instruction on
2 To the extent the plaintiffs argue the search and seizure were illegal, this issue
is decided in Part I.A above.
3 Defendants claim plaintiffs did not preserve their objection for appeal,
requiring review only for plain error. Even under the more lenient abuse of
discretion standard, plaintiffs’ argument fails. This court need not decide whether
the objection was preserved.

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excessive force, because any one of the elements could be excessive force. But see
In re Prempro Prod. Liability Litig., 586 F.3d 547, 567 (8th Cir. 2009) (“The district
court was not required to precisely follow [the Eighth Circuit’s] Model Instruction,
but only to fully and properly instruct upon all the elements of the case in light of
controlling . . . law.” (quotation omitted)).
“Under the law of the case doctrine, the district court [is] bound on remand to
obey the Eighth Circuit’s mandate and not to re-examine issues already settled by
our prior panel opinion.” Thompson, 821 F.3d at 1011. “[W]hen a case has been
decided by an appellate court and remanded for further proceedings, every question
decided by the appellate court, whether expressly or by necessary implication, is
finally settled and determined.” Id. Wilson I explained the extent of plaintiffs’
excessive force complaint that survived on remand. Wilson I, 901 F.3d at 990. The
surviving claim required the jury to find for plaintiffs on all three elements. The jury
did not.4
B.
Plaintiffs argue the standard for excessive force under the Iowa constitution
differs from federal law, so the district court should have separately instructed the
jury.
Plaintiffs are incorrect. “Several guiding principles for reasonableness of
force have been established over time. First, the test for reasonableness of police
conduct “requires a careful balancing of ‘the nature and quality of the intrusion on
4 This is an unusual case where the evidence presented permitted an excessive
force verdict only if the jury believed an officer continued to point a gun at Levi
after the officers realized he was not armed and David was not in the
vehicle. Although not generally applicable, the instructions here adequately
represented the evidence and applicable law in this case. See Linden v. CNH Am.,
LLC, 673 F.3d 829, 836 (8th Cir. 2012). In most cases, instructions more in line
with the Eighth Circuit model jury instructions on excessive force may be
appropriate.

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the individual’s Fourth Amendment interests’ against the countervailing
governmental interests at stake.” Dewitt, 811 N.W.2d at 468 (Iowa 2012), quoting
Graham v. Connor, 490 U.S. 386, 396 (1989), quoting Tennessee v. Garner, 471
U.S. 1, 8 (1985). “If an investigative stop is too long in duration or more invasive
than necessary to accomplish the goals of the investigation, the stop will become a
de facto arrest.” Id. at 469, citing United States v. Sharpe, 470 U.S. 675, 685 (1985).
Since the Iowa Supreme Court’s standard for excessive force does not materially
differ from the federal standard, the district court did not need to separately instruct
the jury.
The district court properly interpreted Wilson I and properly instructed the
jury.
* * * * * * *
The judgment is affirmed.
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