Department of Homeland Security

Federal Law Enforcement Training Centers

Office of Chief Counsel

Legal Training Division

 January 2022

THE

FEDERAL LAW ENFORCEMENT

-INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW 

ENFORCEMENT OFFICERS AND AGENTS

Get THE INFORMER Free Every Month

Click HERE to Subscribe

THIS IS A SECURE SERVICE. 

You will receive mailings from no one except the FLETC Legal Division.

Welcome to this installment of The Federal Law Enforcement Informer (The Informer). The Legal Training Division of the Federal 

Law Enforcement Training Centers’ Office of Chief Counsel is dedicated to providing law enforcement officers with quality, useful 

and timely United States Supreme Court and federal Circuit Courts of Appeals reviews, interesting developments in the law, and 

legal articles written to clarify or highlight various issues. The views expressed in these articles are the opinions of the author and 

do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by 

members of the Legal Division. You can join The Informer Mailing List, and have The Informer delivered directly to you via e-mail 

by clicking on the link below. 

This edition of The Informer may be cited as 1 INFORMER 22.
2

The Informer – January 2022

Case Summaries

Circuit Courts of Appeals

First Circuit

United States v. Miles: Whether an alleged pre-textual traffic stop violated the 

Fourth Amendment..........................................................................................................................4

United States v. Guerrero: Whether officers must “actually fear” for their safety before

they can conduct a lawful frisk of a vehicle under Michigan v. Long................................................5

Fifth Circuit

Timpa v. Dillard: Whether police officers were entitled to qualified immunity in a lawsuit

alleging an excessive use of force against one officer when an individual died after being 

restrained in a prone position for approximately fourteen minutes, and bystander liability 

against four other officers for their failure to intervene....................................................................6

Sixth Circuit

Gordon v. Bierenga: Whether a police officer was entitled to qualified immunity in a lawsuit 

alleging an excessive use of force after the officer shot and killed the driver of a fleeing car ...........9

Eighth Circuit

United States v. Meyer: Whether the warrantless entry into the defendant’s home to

search for and seize his electronic devices was justified by exigent circumstances........................11

Estate of Fritz ex rel. v. Henningar: Whether a police officer drove his police cruiser 

recklessly while responding to a call after he struck another vehicle in an intersection...................12

Eleventh Circuit

Johnson v. City of Miami Beach: Whether a police officer was entitled to qualified 

immunity in a lawsuit alleging the officer used excessive force by striking the plaintiff 

in the face while he was secure, not resisting, and not a threat to the officer...................................13

♦

Chief Justice John Roberts’s 2021 Year-End Report on the Federal 

Judiciary: https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf

♦
3

FLETC Informer Webinar Schedule – February 2022

1. Supreme Court Rulings and the Fourth Amendment

Presented by Arie J. Schaap, Attorney Advisor / Senior Instructor, Federal Law 

Enforcement Training Centers, Artesia, New Mexico.

In 2021, the Supreme Court issued two unanimous opinions, Lange v. California and 

Caniglia v. Strom. In both cases the Court addressed a classic Fourth Amendment issue:

the warrantless entry of a home. The Court ruled against the government in both of the

cases. Lange v. California dealt with the exigent circumstances exception to the warrant 

requirement and Caniglia v. Strom dealt with law enforcement’s authority concerning

community caretaking tasks. 

In 2021, the Supreme Court also issued a 5-3 opinion in Torres v. Madrid. In this case, 

the Court addressed a claim of excessive use of force against police officers and what 

constitutes a “seizure” in the context of the Fourth Amendment. 

Thursday, February 24, 2022: 3 p.m. Eastern / 2 p.m. Central / 1 p.m. Mountain / 

12 p.m. Pacific

To participate in this webinar: https://share.dhs.gov/informer

♦

To Participate in a FLETC Informer Webinar

1. Click on the link to access the Homeland Security Information Network (HSIN).

2. If you have a HSIN account, enter with your login and password information.

3. If you do not have a HSIN account, click on the button next to “Enter as a Guest.”

4. Enter your name and click the “Enter” button.

♦
4

CASE SUMMARIES

Circuit Courts of Appeals

First Circuit

United States v. Miles, 2021 U.S. App. LEXIS 34122 (1st Cir. ME November 17, 2021)

A Maine state trooper, Thomas Pappas, was patrolling the Maine Turnpike at around 10:30 p.m., 

when he saw a car traveling approximately thirty miles per hour in the southbound right-hand 

lane. The car moved into the left lane and, with Trooper Pappas following, proceeded in that lane 

for approximately two miles without passing any other vehicles. Trooper Pappas ran the license 

plate and learned that the car was registered to a woman named Wilkerson at a street address in 

Dorchester, Massachusetts. Trooper Pappas remembered that a few years earlier, he had 

participated in a drug arrest of a man named Wilkerson on that particular street.

While Trooper Pappas followed, the car passed a road sign reading “Keep Right Except to Pass.” 

Nonetheless, the car continued driving in the left-hand lane. Trooper Pappas then signaled the car 

to pull over to the side of the road. When Trooper Pappas approached the stopped car, he smelled 

marijuana and observed a bottle of champagne on the back seat. During the stop, Trooper Pappas 

discovered that the driver, Arthur Miles, had a suspended driver’s license, was in violation of

probation conditions in Massachusetts, and was out on bail in Maine. Trooper Pappas handcuffed 

Miles and searched his car, discovering a quantity of unlawful drugs.

The government charged Miles with possession of a controlled substance with intent to distribute.

Miles filed a motion to suppress the evidence seized from his car, arguing that Trooper Pappas 

lacked reasonable suspicion to conduct the traffic stop. The district court disagreed, holding that 

the stop was justified under the Fourth Amendment by Miles’s failure to obey a traffic control 

device (i.e., road sign) that directed motorists to “Keep Right Except to Pass.” Miles appealed.

On appeal, Miles argued that Trooper Pappas’s real motivation for initiating the traffic stop was 

not for his failing to obey the Keep-Right-Except-to-Pass rule. Instead, Miles claimed that 

Trooper Pappas stopped him on a “mere hunch” that Miles was engaged in criminal activity based

on the trooper’s knowledge that a person having the same last name as the registered owner of the 

car had previously been arrested for drug activity on the street where the registered owner lived. 

To support his position, Miles relied, in part, on portions of Trooper Pappas’s testimony from the 

suppression hearing. For example, Trooper Pappas testified that: (1) he “intend[ed] to stop [Miles] 

even though [Miles] hadn’t reached” the sign that instructed drivers to "Keep Right Except to 

Pass;” and (2) even if Miles “had pulled back over into the right lane,” he would have stopped 

the car for “[t]he same thing.”

The First Circuit Court of Appeals rejected Miles’s argument. In Whren v. United States, the 

Supreme Court held that the reasonableness of a traffic stop under the Fourth Amendment is based 

on objective criteria and not the actual or subjective motivations of a law enforcement officer

involved. Specifically, “as long as a traffic stop is warranted by objectively reasonable facts, a 

claim that the officer making the stop was acting in accordance with some hidden agenda will not 

ground a successful Fourth Amendment challenge.” In this case, the court held that Trooper 

Pappas had a reasonable basis to believe that Miles had committed a traffic infraction. As a result, 
5

the court held that Trooper Pappas was entitled to conduct the traffic stop, regardless of any 

subjective motivation he possessed.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca1/20-2031/20-2031-

2021-11-17.pdf?ts=1637182832

*****

United States v. Guerrero, 2021 U.S. App. LEXIS 35883 (1st Cir. RI Dec. 6, 2021) 

At approximately 1:00 a.m., police officers responded to a “shots fired” call from a nearby 

laundromat. When the officers arrived, they saw a BMW sedan racing away from the area. The 

officers attempted to stop the fleeing vehicle, but the driver refused to pull over. After a brief 

chase, the BMW stopped and the officers secured the driver, Juan Guerrero, and the passenger, a 

16-year-old minor. The officers then searched the BMW and found a magazine loaded with bullets 

in a backpack behind the driver’s seat. After finding the magazine, the officers searched the rest 

of the vehicle but did not find a firearm. 

The government charged Guerrero with unlawful possession of ammunition by a convicted felon. 

Guerrero filed a motion to suppress the evidence seized from the vehicle. 

In Michigan v. Long, the Supreme Court held that when law enforcement officers conduct 

investigative detentions or Terry stops involving automobiles, they may conduct a warrantless 

“car frisk” of the areas within the suspect’s “grab space,” if they have reasonable suspicion that a 

suspect could immediately access a weapon. 

Subsequently, in United States v. Lott and several other cases, when determining the 

reasonableness of car frisks under Long, the First Circuit Court of Appeals required that: (1) the 

officers must actually fear that the suspect was armed (subjective prong); and (2) this fear must 

be reasonable under the circumstances, (objective prong) before officers could “frisk a vehicle for 

weapons.” 

Applying Lott to the facts of this case, the district court held that the second prong was satisfied,

as it was objectively reasonable for the officers under the circumstances to believe that Guerrero 

could have accessed a weapon in the BMW. However, the district court held that the officers 

“lacked” an “actual fear” for their safety; therefore, they were not entitled to frisk the BMW for 

weapons. As a result, the district court granted Guerrero’s motion to suppress. The government 

appealed.

The First Circuit Court of Appeals expressly rejected the “actual fear,” or subjective prong

articulated previously by the court in Lott and subsequent cases. First, the court was mindful of 

the “law of the circuit” rule which provides that once a court decides a legal issue, as the court in 

Lott did, that ruling usually binds later courts. However, the court realized that after it decided 

Lott in 1989, the Supreme Court issued several opinions, in various Fourth Amendment contexts,

which held that legal tests based on reasonableness should be based on objective standards rather 

than on standards that depend on the subjective state of mind of the officer. In addition, the court 

found that the Fifth, Eighth, and District of Columbia circuits specifically rejected the relevance 

of an officer’s subjective fear when reviewing the reasonableness of a car frisk under Long. Based 

on these factors, the court believed that the judges that decided Lott, if given the chance, would 

not require officers to have an “actual fear” for their safety before conducting a lawful car frisk 
6

under Long. As a result, the court reversed the district court’s ruling that granted Guerrero’s 

motion to suppress the evidence seized from the vehicle. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca1/21-1244/21-1244-

2021-12-06.pdf?ts=1638829807

*****

Fifth Circuit

Timpa v. Dillard, 20 F.4th 1020 (5th Cir. 2021)

On the evening of August 10, 2016, Anthony Timpa called 911 and asked to be picked up. Timpka 

stated that he had a history of mental illness, he had not taken his medications, he was “having a 

lot of anxiety,” and he was afraid of a man that was with him. Timpa provided his location on 

Mockingbird Lane in Dallas, Texas. During this time, two other people called 911concerning 

Timpa’s erratic behavior. The dispatcher requested officers respond to a Crisis Intervention 

Training (CIT) situation and described Timpa as a white male with schizophrenia who was off his 

medications.

A CIT call informs responding officers that the situation involves an individual who may be 

experiencing mental health issues. Dallas Police Department (DPD) General Orders required that 

five officers report to CIT calls to perform the “Five-Man Takedown,” which is a control 

technique where each of four officers secures one of the subject's limbs while a fifth officer holds 

the head. This technique allows officers to gain control over a subject and simultaneously prevent 

the subject from injuring himself or others. Regardless of whether officers were responding to a 

CIT call, DPD General Orders instructed that, for all arrestees, “as soon as [they] are brought 

under control, they are placed in an upright position (if possible) or on their side.” A separate

DPD General Order reiterated this instruction for the restraint of subjects suffering from “excited 

delirium,” which was defined as “a state of agitation, excitability, and paranoia . . . often 

associated with drug use, most commonly cocaine.”

When Supervising Police Sergeant Kevin Mansell arrive, Timpa had already been handcuffed by 

two private security guards and he was sitting barefoot on the grass beside the sidewalk yelling, 

“Help me! . . . You're gonna kill me!” Sgt. Mansell called for backup and for an ambulance. A 

few minutes later, two paramedics arrived along with Corporal Raymond Dominguez, and 

Officers Dustin Dillard, Danny Vasquez, and Domingo Rivera. Officers Dillard, Vasquez, and 

Rivera were wearing body cameras, which captured the next fifteen minutes. 

After Timpa began to roll back and forth on the grass, close to the curb of the street, Officers 

Dillard and Vasquez forced Timpa onto his stomach and each pressed one knee on Timpa’s back 

while a security guard restrained his legs. Officer Vasquez removed his knee after approximately 

two minutes. Officer Dillard continued to press his knee onto Timpa’s upper back while he was 

in the prone restraint position for fourteen minutes and seven seconds. 

Approximately fifteen seconds into the restraint, Officer Dillard asked Timpa: “What did you 

take?” Timpa answered, “Coke.” During this time, Timpa was also exhibiting signs of excited 

delirium, such as “yelling incoherently and acting really strange.”

Between three to seven minutes into the restraint, the officers swapped out the private security 

guard’s handcuffs with some difficulty because of Timpa's continued flailing. At the same time, 
7

the officers zip-tied Timpa’s ankles and forced his lower legs under the cover of a concrete bus 

bench. 

Seven minutes into the restraint, Timpa, prone and cuffed at the hands and ankles, had calmed 

down sufficiently for a paramedic to successfully take his vitals. While the paramedic was taking 

Timpa’s vitals, Officer Rivera left the scene to find Timpa’s car. By the time the paramedic had 

finished, approximately nine minutes into the restraint, Timpa’s legs had stopped kicking, though 

he remained vocal and kept calling for help. Thirty seconds later, only Timpa’s head moved 

intermittently from side to side. He continued to cry out, “Help me!” but his voice was weakened 

and slurred. Forty-five seconds later, Timpa suddenly stilled and was quiet except for a few 

moans. Timpa then fell limp and was nonresponsive.

At this point, Officer Dominguez asked Sgt. Mansell what to do. Sgt. Mansell responded that 

they should strap Timpa to a gurney and then he returned to his patrol car, located a few feet away, 

to check for warrants for Timpa’s arrest. During this time, the officers expressed concern that 

Timpa was nonresponsive with Officer Dominguez commenting that he wanted to make sure 

Timpa was still breathing because his nose [was] buried in the [ground]. Officer Dillard 

responded, “I think he’s asleep!” and stated that he heard Timpa “snoring.” Officers Dominguez 

and Vasquez expressed surprise and then mocked Timpa for losing consciousness. Three-and-ahalf minutes after Timpa had become nonresponsive, Officer Dillard removed his knee from 

Timpa’s back. Shortly afterward, when the officers placed Timpa on the gurney, the paramedics 

discovered that he was dead. 

Timpa’s mother and others (plaintiffs) sued Officer Dillard under 42 U.S.C. § 1983 claiming that 

his restraint of Timpa constituted both excessive force and deadly force in violation of the Fourth 

Amendment. Specifically, the plaintiffs claimed that Officer Dillard unlawfully restrained Timpa 

in the prone position with bodyweight force pressed on Timpa’s back in violation of clearly 

established law. The plaintiffs also sued Officers Dominguez, Vasquez, Mansell, and Rivera 

under a theory of bystander liability for their failure to intervene and stop Officer Dillard’s 

excessive use of force against Timpa. The district court held that all of the officers were entitled 

to qualified immunity and dismissed the plaintiffs’ claims. The plaintiffs appealed.

First, the Fifth Circuit Court of Appeals considered the excessive force claim against Officer 

Dillard. In Graham v. Connor, the Supreme Court held that whether an officer has used excessive 

force depends on “the facts and circumstances of each particular case,” including a non-exhaustive 

list of factors, such as: (1) “the severity of the crime at issue”; (2) “whether the suspect poses an 

immediate threat to the safety of the officers or others”; and (3) “whether he is actively resisting 

arrest or attempting to evade arrest by flight.”

In this case, the court held that the first factor weighed against the prolonged use of bodyweight 

force, as Officer Dillard’s continued use of force was not justified by a criminal investigatory 

function. The officers conceded that Timpa’s criminal liability was “minor,” no more than a 

traffic violation, and they did not intend to charge him with any crimes. 

Concerning the second factor, the immediacy of the threat posed by Timpa, the court found that 

approximately nine-minutes into the restraint: (1) Timpa was cuffed at both the wrists and ankles, 

(2) his lower legs had stopped moving and were confined under the bus bench; and (3) he was 

surrounded by five officers, two paramedics, and two private security guards, most of whom were 

mulling about while Officer Dillard maintained bodyweight force on Timpa’s upper back. Based 

on these fact the court held that a jury could conclude that no objectively reasonable officer would 
8

believe that Timpa, restrained, surrounded, and subdued, continued to pose an immediate threat 

of harm justifying the prolonged use of force. 

Concerning the third Graham factor, the court held that the plaintiffs raised a genuine dispute of 

material fact as to whether Timpa continued to actively resist arrest. The officers claimed that 

Timpa continued to actively resist arrest by “squirming” and “moving his head from left to right” 

in the final minutes of the restraint. The plaintiffs argued that Timpa moved his body in order to 

breathe, a position supported by the plaintiffs’ expert witness, a forensic pathologist. The court 

added that the plaintiffs’ claim was not contradicted by the officers’ body camera footage which 

showed Timpa attempting to raise his torse while he cried out repeatedly, “Help me,” “You’re 

gonna kill me,” “I’m gonna die,” “I can’t live.” Finally, the court held that the risks of asphyxiation 

in this circumstance should have been familiar to Officer Dillard because he had received training 

on the use of a prone restraint to control subjects in a state of excited delirium. Based on these 

facts, the court held that a jury could find that an objectively reasonable officer with Officer 

Dillard’s training would have concluded that Timpa was struggling to breathe, not resisting arrest. 

The court commented that, while a jury could find that Officer Dillard’s continued use of force 

was objectively unreasonable, a jury could ultimately conclude the opposite: that Timpa was not 

subdued and continued to pose an immediate threat throughout his restraint. The court noted that 

it was a jury’s job to resolve such factual disputes. 

Second, the court held that a jury could find that the use of a prone restraint with bodyweight force 

on an individual with three apparent risk factors, obesity, physical exhaustion, and excited 

delirium, constituted unreasonable deadly force. The court based this holding on the fact: (1) that 

the officers involved in this case were trained that the prolonged use of a prone restraint on 

subjects in a state of excited delirium can result in positional asphyxia death; (2) prominent 

guidance from the Department of Justice concerning risks, including sudden death, associated 

with prone handcuffing and positional asphyxia; and (3) expert witness testimony from the 

plaintiffs concerning the substantial risks of a prone restraint with weight on an obese and 

physically exhausted person in a state of excited delirium. 

Third, the court found that the state of the law in August 2016 clearly established that the 

continued use of force against a restrained and subdued subject violated the Fourth Amendment; 

therefore, Officer Dillard was not entitled to qualified immunity. 

Fourth, the court considered the plaintiffs’ bystander liability claims against Officers Vasquez and 

Dominguez. It was undisputed that both officers stood a few feet away from Timpa throughout 

the fourteen-minute duration of the restraint and that they were aware of the risks associated with 

holding an arrestee in the prone restraint position. In addition, the officers did not dispute that 

they lacked a reasonable opportunity to intervene. Finally, it was undisputed that the officers 

watched Timpa suddenly lose consciousness, expressed surprise, and then “stood by and laughed” 

while Officer Dillard continued to kneel on Timpa. Based on these facts, the court held that a jury 

could conclude that the officers failed to intervene to stop Officer Dillard’s excessive use of force 

against Timpa; therefore, they were not entitled to qualified immunity.

Fifth, the court held that Sgt. Mansell was not entitled to qualified immunity. Thirty-four seconds 

after Timpa was subdued, he returned to his patrol car a few feet away and sat with the car door 

open while he ran a check on Timpa’s license. Although Sgt. Mansell claimed that he did not 

hear Officers Vasquez and Dominguez mock Timpa for losing consciousness, there was testimony 

that supported an inference that he was aware that Timpa had become incapacitated. As a result, 
9

the court held that a jury could find that Sgt. Mansell remained present on the scene and acquiesced 

in the violation of Timpa’s Fourth Amendment rights. 

Finally, the court held that Officer Rivera was entitled to qualified immunity because he lacked a 

reasonable opportunity to intervene. It was undisputed that Officer Rivera left the scene 

approximately two-and-a-half minutes before Timpa stopped moving his legs and that he 

remained absent until after Officer Dillard removed his knee from Timpa’s back. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca5/20-10876/20-

10876-2021-12-15.pdf?ts=1639614617

*****

Sixth Circuit

Gordon v. Bierenga, 2021 U.S. App. LEXIS 36867 (6th Cir. MI Dec. 14, 2021) 

Around 6:00 p.m. on April 10, 2018, Officer Keith Bierenga attempted to stop a BMW driven by 

Antonio Gordon after Gordon almost collided with another vehicle. After failing to pull over for 

several blocks, Gordon stopped his car behind several other vehicles at a red light. Officer 

Bierenga exited his police cruiser, approached Gordon’s car, and began speaking to him through 

the partially open driver’s-side window. During the ten second conversation, Officer Bierenga 

perceived that Gordon was under the influence of something. When the light turned green and 

the traffic ahead of him moved forward, Gordon accelerated away from Officer Bierenga. 

Officer Bierenga returned to his cruiser and followed Gordon as he made a sharp left turn in front 

of oncoming traffic into a White Castle parking lot. Gordon drove against the designated flow of 

traffic for the drive-thru window and went the wrong way around the parking lot. Officer Bierenga 

attempted to follow, but lost Gordon. 

Approximately fifteen minutes later, Officer Bierenga spotted a BMW in the line at the White 

Castle drive-thru window that looked like Gordon’s. It was, in fact, Gordon at the drive-thru 

window paying for his order. There was another vehicle parked in line approximately three feet 

behind Gordon. Officer Bierenga pulled into the parking lot and positioned the back of his cruiser 

at a diagonal angle directly in front of Gordon’s car, effectively blocking him in. Officer Bierenga 

exited his vehicle and walked toward Gordon’s car with his firearm drawn. Gordon backed his 

car into the vehicle behind him and then drove forward striking Officer Bierenga’s cruiser, 

seemingly in an attempt to make a three-point turn get out of the drive-thru lane. While standing 

to the side of Gordon’s car, Officer Bierenga repeatedly yelled at him to stop. As Gordon 

continued to maneuver his car, Officer Bierenga walked closer to Gordon’s driver’s-side window. 

After Gordon pulled forward, heading away from the White Castle and toward an opening behind 

Officer Bierenga’s cruiser, Officer Bierenga yelled, “Stop!” and fired four shots at Gordon 

through the driver’s side of the car. 

Gordon continued out of the parking lot and drove a short distance before he collided head-on 

with another vehicle. Gordon was subsequently transported to the hospital where he died. Gordon 

suffered two gunshot wounds, one to his left arm and chest and another to his right arm. Gordon’s 

toxicology report indicated that he had a blood alcohol concentration of .27 at the time of his 

death. 
10

Gordon’s Estate (Plaintiff) sued Officer Bierenga for excessive use of force under 42 U.S.C. § 

1983. The district court denied Officer Bierenga qualified immunity. The court held that Officer 

Bierenga’s use of deadly force violated Gordon’s Fourth Amendment right to be free from 

excessive force during his vehicular flight, and that this right was clearly established in Latits v. 

Phillips, decided by the Sixth Circuit Court of Appeals in 2017. Officer Bierenga appealed.

A police officer is entitled to qualified immunity from suit unless the plaintiff establishes: (1) a 

constitutional violation; and (2) that the right at issue was clearly established when the incident 

occurred. 

In this case, the Sixth Circuit Court of Appeals held that the plaintiff failed to satisfy the second 

prong. A right is clearly established when it is sufficiently clear that every reasonable officer

would have understood that what he is doing violates that right. This analysis depends on the 

specific facts of the case at hand and their similarity to caselaw in existence at the time of the 

alleged violation. In Latits, the court held that in evaluating the reasonableness of deadly force in 

the context of a fleeing driver, it must determine: (1) whether anyone was in the car’s immediate 

path at the time of the shooting; and (2) examine the officer’s prior interactions with the driver 

that show potential for “imminent danger to other officers or members of the public in the area”

if the driver is permitted to continue fleeing.

The court held that here, like in Latits, the evidence allowed for an interpretation that Officer 

Bierenga fired four shots at Gordon after Gordon’s car had passed the point the point where it 

could harm him, such that Officer Bierenga had time to realize that the was no longer in immediate 

danger. However, unlike Latits, which had a chase that occurred when the driver fled, in the dead 

of night, on a large, effectively empty highway surrounded by non-populated areas, the 

circumstances of Gordon’s flight were different. First, Gordon fled from Officer Bierenga during 

rush hour in the middle of a major road in a populated Detroit suburb, adjacent to residential 

neighborhoods and businesses. Second, Officer Bierenga saw Gordon make a reckless left turn 

in the face of oncoming traffic near a busy intersection to escape from him, causing oncoming 

cars to brake to avoid colliding with Gordon as he turned into the White Castle parking lot. Third, 

several cars were parked in the parking lot and multiple patrons and employees were inside the 

establishment. Finally, after Officer Bierenga blocked Gordon at the drive-thru window, Gordon 

reversed into the occupied vehicle behind him before accelerating forward and hitting Officer 

Bierenga’s police vehicle. The court concluded that, while Gordon’s contact with those vehicles 

occurred at a relatively low speed, his conduct showed a willingness to strike both police and 

civilian vehicles to effectuate his escape from police. Based on these facts, the court held that 

Gordon’s reckless driving posed a materially higher risk of harm to the surrounding public than 

the reckless driving in Latits. Accordingly, the court found that Latits did not “clearly establish” 

that using lethal force in the specific scenario Officer Bierenga confronted violated the Fourth 

Amendment. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca6/20-2013/20-2013-

2021-12-14.pdf?ts=1639510269

*****
11

Eighth Circuit

United States v. Meyer, 2021 U.S. App. LEXIS 35593 (8th Cir. IA Dec. 2, 2021) 

After the government discovered financial ties between William Meyer and individuals in the 

Philippines who were livestreaming sex acts involving children, two federal agents visited Meyer 

at his home. After the agents knocked on his door, Meyer insisted on speaking with them outside, 

so the agents spoke with Meyer in their car.

During their conversation, Meyer revealed a number of facts that aroused the agents’ suspicion, 

including that Meyer had personal and financial ties to the individuals involved in the abuse. 

When Meyer admitted that he used a computer and cell phone to contact them, the agents asked 

Meyer if he would be willing to turn those devices over to them for an examination. Meyer told 

the agents that he was willing to turn them over later, after he had a chance to “check [his] email 

and stuff.” Once the agents expressed concern that a delay would give him a chance to erase what 

was on them, Meyer still refused to consent, claiming that his house was “a mess” and “not . . . in 

any condition to entertain people.” Then, after the agents mentioned the possibility of getting a 

warrant, Meyer suggested that the agents “come back later.” One of the agents told Meyer that if 

they obtained a warrant, they would not tell him beforehand when they were coming to execute 

it. A short time later, Meyer went back inside his house.

Concerned that Meyer would destroy evidence if they waited any longer, one of the agents called 

a prosecutor for advice on whether “an exigent circumstance existed.” When he was told that it 

did, the agents again knocked on Meyer’s door, searched his home for electronic devices, and 

seized two computers, a cellphone, and a hard drive. Afterward the agents obtained a warrant to 

search the devices seized from Meyer’s home. The search revealed child pornography videos and 

evidence that Meyer had sent money in exchange for the videos. 

After the district court denied Meyer’s motion to suppress the evidence discovered on his devices, 

he plead guilty to one count of sexual exploitation of children. On appeal, Meyer claimed that the 

agents’ warrantless entry into his home violated the Fourth Amendment. 

Generally, before law enforcement officers can lawfully enter a home to search for and seize

evidence, they must first obtain a warrant. However, if the officers have probable cause to believe 

that the place to be searched contains evidence of a crime and there is a basis to believe that 

evidence will be destroyed, then exigent circumstances exist that will allow the officers to enter 

and search the home without a warrant. The exception to this rule is when the officers themselves 

have created the exigency by “engaging or threatening to engage in conduct that violated the 

Fourth Amendment. 

In this case, the Eighth Circuit Court of Appeals held that exigent circumstances existed that 

permitted the agents to enter Meyer’s house without a warrant and seize his electronic devices. 

First, by the time the agents decided to enter Meyer’s house they had probable cause to believe 

that he was involved in criminal activity. Specifically, the agents knew that Meyers: (1) had ties 

to the individuals who were livestreaming sexual abuse of children; (2) had stayed with these 

individuals when he visited the Philippines; (3) had paid thousands to them and one of the minor 

victims; and (4) did not tell his wife about some of the money he sent, despite claiming that the 

payments were tied to his humanitarian work. 

Second, the court held that the agents had probable cause to believe that there would be 

incriminating evidence on Meyer’s devices, as Meyer admitted to the agents that he used a 
12

computer and cellphone to communicate with the abusers and had stayed in regular contact with 

them. The agents also knew that his Skype username was “prettyvirginfilipino” and that the profile 

he used was a variant of the first name of one of the minor victims. After Meyers admitted that 

these devices were in his home, the court concluded that there was a fair probability that the agents 

would find “evidence of a crime” inside his home. 

Third, the court held that it was reasonable for the agents to believe that Meyer would destroy the 

evidence on his devices after he went back inside his home. Meyer told the agents they could 

examine his devices after he “checked his email and stuff.” When the agents suggested that they 

accompany Meyer inside and look at the devices together, Meyer shifted his attention to the 

tidiness of his house and told the agents he would need “a few minutes to clean up first.” The 

court concluded that Meyer’s insistence that he have an opportunity to be alone with his devices

gave the agents reason to believe that he was hiding something. Knowing that data can be deleted 

“at the touch of a button,” the court found that it was reasonable for the agents to enter Meyer’s 

home without a warrant and seize his devices.

Finally, the court held that the agents did not create the exigency by “engaging or threatening to 

engage in conduct that violates the Fourth Amendment.” By the time the agents mentioned their 

concern that Meyer might destroy evidence, he had already made a number of suspicious 

comments, including offering multiple excuses for his refusal to cooperate. Consequently, the 

court held that officers could not have manufactured or created an exigency that already existed. 

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/20-2958/20-2958-

2021-12-02.pdf?ts=1638462628

*****

Estate of Fritz ex rel. Fritz v. Henningar, 2021 U.S. App. LEXIS 36124 (8th Cir. IA Dec. 8, 

2021) 

Officer Bryson Henningar responded to a “fight in progress” call at an apartment complex by 

activating the emergency lights on his police cruiser and traveling down a two-lane Iowa highway 

toward the complex. A few minutes later, with other vehicles already pulled over to the side of 

the road, Officer Henningar accelerated from 47 to 60 miles per hour as he crossed a four-way 

intersection. On the other side of the intersection, Willys Fritz’s truck was idling at a stop sign. 

As Officer Henningar approached, Fritz pulled out into the highway and tried to cross the 

intersection. Officer Henningar’s cruiser broadsided Fritz’s truck, killing Fritz. 

Fritz’s estate (plaintiffs) sued Officer Henningar for recklessly causing Fritz’s death under Iowa 

Code § 321.231 and under 42 U.S.C. § 1983 for violating Fritz’s civil rights. After the district 

court granted Officer Henningar’s motion for summary judgment and dismissed the case, the 

plaintiffs appealed. 

Iowa Code § 321.231 provides, in part, that while responding to “emergency calls,” operators of 

emergency vehicles can: (1) proceed past a red [light] or stop signal or stop sign, but only after 

slowing down as may be necessary for safe operation and can (2) exceed the maximum speed 

limits so long as the driver does not endanger life or property. Operators of emergency vehicles 

are only entitled to do so when an “audible” or “visual signaling device” is used, such as flashing 

lights or a siren. Nonetheless, § 321.231 requires operators of emergency vehicles to drive with 

“due regard for the safety of all persons,” and does not protect them from “the consequences of 

the driver’s reckless disregard for the safety of others.” The plaintiffs argued that Officer 
13

Henningar’s operation of his police cruiser was reckless under § 321.231; therefore, the district 

court erroneously dismissed the lawsuit against him. 

Under Iowa law, to show that Officer Henningar acted recklessly, the plaintiffs must show, in 

part, that he intentionally committed an unreasonable act in disregard of a known risk or a risk 

that was so obvious that he must have been aware of it. The Eighth Circuit Court of Appeals 

agreed with the district court which held that the plaintiffs could not meet this requirement. 

To support this conclusion, the court cited Bell v. Community Ambulance Service Agency

decided by the Iowa Supreme Court in 1998. In Bell, an ambulance responding to an emergency 

call approached an intersection with its lights and sirens activated. From the ambulance driver’s 

point of view, all traffic was stopped, and the intersection was clear. However, when another 

vehicle tried to cross the intersection, the ambulance a massive broadside collision resulted. The 

Court found that the ambulance driver was not reckless under § 321.231 because at the time of 

the collision the road was straight, all surrounding traffic had stopped, and witnesses clearly saw 

and/or heard the ambulance. 

In this case, the court concluded that, while the emergency vehicle was different than in Bell, the 

circumstances were almost identical. As Officer Henningar’s police cruiser approached the 

intersection, traffic had stopped, the road was straight, and the lane ahead was clear. In addition, 

multiple witnesses reported hearing a siren or seeing flashing lights. The court concluded that if 

the evidence in Bell was insufficient to establish the recklessness of the ambulance driver, then it 

followed that the evidence in this case could not establish that Officer Henningar acted recklessly 

under § 321.231.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca8/20-3582/20-3582-

2021-12-08.pdf?ts=1638979272

*****

Eleventh Circuit

Johnson v. City of Miami Beach, 2021 U.S. App. LEXIS 34507 (11th Cir. FL Nov. 19, 

2021) 

Police officers arrested Richard Johnson after he sold cocaine to two undercover Miami Beach 

police officers. When the officers walked Johnson to the transport vehicle and told him to have a 

seat, Johnson refused, stating that he was not going to jail. Johnson repeatedly asked the officers 

why he was being arrested, insisted he had done nothing wrong, and accused them of setting him 

up. While Johnson was talkative, he was not physically aggressive. Johnson did not immediately 

follow the order to sit down but, after 20 or so seconds, he sat down in the vehicle.

While driving Johnson to the Miami Beach Police Department, Officer Duane Mitchell called for 

backup to meet him at the police station, explaining over the radio that Johnson had “said he isn’t 

going.” Officer Christopher Aguila responded to the call and met Officer Mitchell at the police 

department. Officer Mitchell told Officer Aguila that Johnson did not want to get out of the police 

car. Officer Aguila opened the door of the car, and Johnson got out six seconds later. Officer 

Aguila then walked Johnson, still handcuffed, into the police station for processing.

Inside the police station, officers removed Johnson’s handcuffs. Body camera footage showed

Johnson, no longer in handcuffs, continuing to ask why he had been arrested and insisting that he 
14

had done nothing wrong. At one point, facing Officer Aguila, Johnson stated, “I ain’t scared of 

you by a long shot, buddy.” Nonetheless, the videos showed that Johnson complied with the 

officers’ instructions to take off his socks and shoes and then to turn around and place his hands 

on the table behind him. 

After the officer searched Johnson, they escorted him to a holding cell. When Officer Walter 

Mejia placed his hand on Johnson’s back and guided him toward the open cell door, Johnson 

stepped to the right of the cell’s doorway and placed his back against the adjacent wall, stating, 

“I'm not going to go in there.” Another officer immediately said, “My man, my man, you’re going 

in there,” and Johnson made no further remarks to the officers. Officer Mejia grabbed Johnson 

by the shoulder and pushed him into the cell. After Johnson was inside the cell, Officer Mejia 

took a step to the left, such that he was no longer directly in front of the cell’s doorway and reached 

for the cell’s sliding door. Johnson was then well inside the cell and standing still. At this point, 

Officer Aguila, who had been standing outside the cell to the right of Officer Mejia, entered the 

cell and forcibly struck Johnson in the face with his elbow. The incident was captured, at various 

angles, on two security cameras and two body cameras. None of these videos showed Johnson 

making any perceptible movements in the time between when Officer Mejia placed him in the cell 

and when Officer Aguila then entered the cell and struck him. Johnson was later treated for a 

small laceration to his mouth.

Johnson sued Officer Aguila and the City of Miami Beach for, among other things, excessive use

of force under 42 U.S.C. § 1983. The district court held that Officer Aguila was entitled to 

qualified immunity “because a reasonable officer could have believed that the force used was 

necessary under the circumstances.” Johnson appealed.

Qualified immunity protects government officials, including police officers, from civil liability 

unless their conduct violates clearly established statutory or constitutional rights of which a 

reasonable person would have known. The Fourth Amendment’s freedom from unreasonable 

searches and seizures includes the right to be free from the use of excessive force in the course of 

an arrest. In excessive force cases, whether a plaintiff's constitutional rights were violated is 

governed by the Fourth Amendment’s objective reasonableness standard. In Graham v. Connor, 

the Supreme Court held that whether an officer has used excessive force depends on “the facts 

and circumstances of each particular case,” including a non-exhaustive list of factors, such as: (1) 

“the severity of the crime at issue”; (2) “whether the suspect poses an immediate threat to the 

safety of the officers or others”; and (3) “whether he is actively resisting arrest or attempting to 

evade arrest by flight.”

In this case, viewing the evidence and the videos in the light most favorable to Johnson, the 

Eleventh Circuit Court of Appeals held that a reasonable jury could find that at the time Officer 

Aguila entered the holding cell and forcibly struck him: 1) Johnson was under arrest; 2) Johnson 

was fully secured, as he was far enough inside the holding cell that Officer Mejia could have slid 

the door closed without incident; 3) Johnson was not moving, resisting, or otherwise posing a 

threat to Officer Mejia or any other officer; 4) Johnson was not attempting to flee; and 5) Officer 

Aguila had no need to use any force against Johnson. As a result, the court concluded that a 

reasonable jury could find that Officer Aguila used excessive force in violation of the Fourth 

Amendment when he entered the holding cell and forcibly struck Johnson.

Next, the court held that at the time of the incident, it was clearly established in the Eleventh 

Circuit that an officer violates the Fourth Amendment when he uses gratuitous force against an 
15

arrestee who is fully secured, not resisting arrest, and not posing a safety threat to the officer. As 

a result, the court held that Officer Aguila was not entitled to qualified immunity.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca11/20-10834/20-

10834-2021-11-19.pdf?ts=1637350360

*****