United States Court of Appeals

For the Eighth Circuit

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No. 15-3438

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Jill S. N. Schaffer; Callissa A. Schaffer

lllllllllllllllllllll Plaintiffs - Appellants

v.

Bryan Beringer, in his individual capacity; Jacy Nelsen, in her individual capacity;

Jessica Wade, in her individual capacity; Mark Foley, in his individual capacity;

Matt Betzen, individually and in his official capacity

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the District of South Dakota - Sioux Falls

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 Submitted: October 19, 2016

 Filed: November 21, 2016

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Before GRUENDER, BEAM, and SHEPHERD, Circuit Judges.

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GRUENDER, Circuit Judge.

Jill and Callissa Schaffer brought this civil rights action under 42 U.S.C. § 1983

against officers of the Vermillion Police Department (“VPD”), alleging that the
officers violated their First and Fourth Amendment rights. The district court1

 granted

the officers’ motion for summary judgment, and we affirm. 

I.

At approximately 12:15 a.m. on May 30, 2014, Vermillion Police Officer Mark

Foley observed a car driving with a broken tail light. Officer Foley followed the car

for four blocks, during which he observed no abnormal driving behavior. He then

initiated a traffic stop. Eighteen-year-old Callissa Schaffer was the driver of the car,

which belonged to Lee Sappingfield, who was located in the backseat. A third

individual, Marilyn Wingo, was in the front passenger seat.

Officer Foley first asked to see Callissa’s driver’s license, which she did not

have. He then asked for her name and date of birth, which she provided. During this

conversation, Officer Foley smelled a strong odor of alcohol emanating from inside

the car. Officer Foley contacted dispatch and requested that Officer Bryan Beringer

come to his location. Officer Foley then asked Callissa to step out of the vehicle and

asked her if she had been drinking, which she denied.

Officer Foley requested that Callissa take a preliminary breath test (“PBT”). 

Callissa declined the PBT and then called her mother, Jill Schaffer, to the scene. 

Meanwhile, Officer Beringer had arrived and began talking to Wingo, who admitted

consuming several beers earlier even though she was only seventeen years old. 

Sappingfield also had consumed alcohol, but he was of legal age. Officer Beringer

then walked over to Officer Foley and Callissa and observed that Callissa’s face was

flushed and that her eyes were watery. Neither officer could determine whether the

smell of alcohol was coming directly from Callissa or from the car.

1

The Honorable Karen E. Schreier, United States District Judge for the District

of South Dakota. 

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Jill, an attorney, then arrived at the scene. She stood between the officers and

Callissa and argued that the officers had no reason to think Callissa had been drinking. 

Jill also threatened to file a civil rights suit against the officers. Officer Beringer

explained to Jill that she was physically and verbally obstructing a police investigation

and then called Sergeant Jacy Nelsen to the scene.

Sergeant Nelsen arrived with Officer Jessica Wade. Sergeant Nelsen informed

Jill that she needed to either step aside or be arrested, and Jill stepped aside. Callissa

was again asked whether she would take a PBT and was informed that if she refused

she would be detained at the police station while they sought a warrant. Callissa again

refused the PBT. Callissa and Wingo both were placed in handcuffs and frisked by

Officer Wade before being driven to the VPD.

At the station, Wingo agreed to take the PBT, which revealed a blood alcohol

content (“BAC”) of .21. Meanwhile, Officer Foley prepared an affidavit for a search

warrant to force Callissa to take the PBT. Officer Foley included in his affidavit that

he could smell alcohol emanating from the car, Sappingfield performed a PBT on

scene with a BAC of .05, Wingo had just performed a PBT at the station with a BAC

of .21, and he noticed when speaking to Callissa that her eyes were watery and her

face was flushed. A magistrate judge signed the warrant. More than two hours after

the initial stop, Callissa finally performed the PBT, which revealed a BAC of .00. 

On July 2, 2014, Jill was indicted for violating South Dakota’s obstruction

statute, SDCL § 22-11-6. She proceeded to trial and was convicted of obstructing an

investigation. She did not appeal this conviction. 

On September 4, 2014, Jill and Callissa Schaffer filed the complaint in this

case. Pursuant to 42 U.S.C. § 1983, they alleged thirteen counts against the VPD

officers for violations of various constitutional rights. The district court held that

Officers Foley, Beringer, Wade, and Nelsen were entitled to qualified immunity on

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all counts and thus granted them summary judgment. The district court likewise held

that Police Chief Matt Betzen was entitled to summary judgment on the claims against

him in both his individual and official capacities.

On appeal, the Schaffers raise the following arguments: (1) the officers

unlawfully arrested Callissa when they handcuffed and detained her; (2) the officers

unlawfully searched Callissa when they frisked her; (3) Officer Foley purposefully

misrepresented facts in the search warrant affidavit; (4) the officers committed

retaliatory perjury in Jill’s obstruction trial; and (5) Chief Betzen failed to adequately

train the officers. We address each of these arguments in turn.

II.

 We review the district court’s order granting summary judgment de novo,

viewing the evidence in the light most favorable to the Schaffers and drawing all

reasonable inferences in their favor. See Joseph v. Allen, 712 F.3d 1222, 1225 (8th

Cir. 2013). Summary judgment is proper when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(a).

A.

The Schaffers first argue that the officers violated Callissa’s Fourth Amendment

right to be free from unreasonable seizures. The Schaffers contend that Callissa was

under arrest from the moment she was placed in handcuffs until she was released from

the VPD, and they argue that the officers did not have probable cause to support this

arrest. The officers assert that they are entitled to summary judgment on grounds of

qualified immunity. 

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Qualified immunity shields government officials from liability unless their

conduct “violated a clearly established constitutional or statutory right of which a

reasonable official would have known.” Carpenter v. Gage, 686 F.3d 644, 648 (8th

Cir. 2012). Thus, the qualified immunity analysis is divided into two prongs: (1)

whether the facts alleged establish a violation of a constitutional or statutory right; and

(2) whether that right was clearly established at the time of the alleged violation, such

that a reasonable official would have known that his actions were unlawful. Kail v.

Triveline, 661 F.3d 981, 985 (8th Cir. 2011). “If the answer to either question is no,

then the [officials] are entitled to qualified immunity.” Id. Furthermore, “we may

exercise our sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first.” Mead v. Palmer, 794 F.3d 932, 936

(8th Cir. 2015) (quotation omitted). 

 “It is well established that a warrantless arrest without probable cause violates

an individual’s constitutional rights under the Fourth and Fourteenth Amendments.” 

Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005) (quotation omitted). 

An officer has probable cause “when the totality of the circumstances at the time of

the arrest are sufficient to lead a reasonable person to believe that the defendant has

committed or is committing an offense.” Ulrich v. Pope Cty., 715 F.3d 1054, 1059

(8th Cir. 2013) (quotation omitted). However, “the issue for immunity purposes is not

probable cause in fact but arguable probable cause, that is, whether the officer should

have known that the arrest violated plaintiff’s clearly established right.” Habiger v.

City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996) (citations and quotation omitted). 

“Arguable probable cause exists even where an officer mistakenly arrests a suspect

believing it is based in probable cause if the mistake is objectively reasonable.” 

Ulrich, 715 F.3d at 1059 (quotation omitted). 

Thus, we need not decide whether the officers had actual probable cause. 

Rather, following Habiger v. City of Fargo, we need only address whether the officers

had arguable probable cause and are thus entitled to qualified immunity. 80 F.3d at

295. Because a determination that the officers had arguable probable cause would end

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the inquiry, we will assume that Callissa was arrested when she was placed in

handcuffs. See United States v. Pratt, 355 F.3d 1119, 1122 (8th Cir. 2004) (“[I]f an

officer has probable cause, any inquiry into other acceptable justifications for the

seizure is largely superfluous . . . .”).

The legal drinking age in South Dakota is twenty-one. SDCL § 35-9-2. South

Dakota’s general DUI statute prohibits anyone from operating a motor vehicle if their

BAC is .08 or higher. SDCL § 32-23-1. However, South Dakota’s minor DUI statute

prohibits drivers under the age of twenty-one from operating a motor vehicle with a

BAC of .02 or higher. SDCL §32-23-21. Thus, the legal BAC limit for drivers under

the age of twenty-one is significantly lower than the permissible level for drivers over

twenty-one. Notably, no judicial decisions have addressed what circumstances would

provide officers with probable cause to arrest a driver under the age of twenty-one for

a violation of the minor DUI statute. In qualified immunity cases, this “absence of

judicial guidance can be significant.” Walker, 414 F.3d at 993.

Officers Foley and Beringer personally observed Callissa’s watery eyes and

flushed face, and both smelled alcohol emanating from the vehicle. See Sherbrooke

v. City of Pelican Rapids, 577 F.3d 984, 987-88 (8th Cir. 2009) (considering watery

eyes and smell of alcohol in probable cause analysis). Both passengers of the vehicle,

including one minor, admitted to consuming alcohol. Given the totality of these

circumstances, the relatively low .02 BAC limit under the minor DUI statute, and the

absence of judicial decisions interpreting that statute, we find that the officers had at

least arguable probable cause to believe that Callissa Schaffer had violated SDCL

§ 32-23-21. Because the officers had arguable probable cause, they are entitled to

qualified immunity with respect to this claim.2

2

The Schaffers also contend that the text of SDCL § 32-23-21, unlike that of

SDCL § 32-23-1, authorizes an arrest only if there is physical evidence of a BAC of

.02 or higher and not when officers have only probable cause that a driver has been

drinking. However, they raise this argument for the first time on appeal, and they

point to no cases interpreting the two statutes differently. Therefore, we decline to

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B.

The Schaffers next argue that the officers deprived Callissa of her Fourth

Amendment right to be free from unreasonable searches when she was frisked before

being placed in the patrol car. They contend that the search was unreasonable because

the officers had no reason to believe that Callissa posed a danger to them. The

officers again assert qualified immunity as a defense. 

“Under the Fourth Amendment, a warrantless search of the person is reasonable

only if it falls within a recognized exception to the warrant requirement.” United

States v. Chartier, 772 F.3d 539, 545 (8th Cir. 2014) (quotation omitted). One of

these exceptions allows an officer to “conduct a limited pat-down search of the

individual’s outer clothing for the purpose of uncovering concealed weapons if the

officer has a reasonable, articulable suspicion that the person is armed and

dangerous.” United States v. Gilliam, 520 F.3d 844, 847-48 (8th Cir. 2008). Because

the officers had no reason to believe that Callissa posed any danger to them, the

Schaffers are correct insofar as this exception does not apply.

However, another exception to the warrant requirement is a “search incident to

a lawful arrest.” Arizona v. Gant, 556 U.S. 332, 338 (2009). “Such a search may

include a search of the arrestee’s person to remove weapons and seize evidence to

prevent its concealment or destruction.” Chartier, 772 F.3d at 545. “It is the fact of

arrest that enables the officer to conduct a search, not a particularized suspicion as to

the suspect’s dangerousness.” Pratt, 355 F.3d at 1121. Thus, when officers have “at

least arguable probable cause” to perform an arrest, they cannot be held liable for

performing a search incident to that arrest. Meehan v. Thompson, 763 F.3d 936, 946

(8th Cir. 2014). Because we have already determined that the officers had arguable

consider this argument. See McBurney v. Stew Hansen’s Dodge City, Inc., 398 F.3d

998, 1002 (8th Cir. 2005) (“Absent exceptional circumstances we will not consider

arguments raised for the first time on appeal.”). 

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probable cause to arrest Callissa, they are entitled to qualified immunity on this claim

as well. 

C.

The Schaffers next argue that Officer Foley deprived Callissa of her Fourth

Amendment right to be free from unreasonable searches because he purposefully

misrepresented facts in his affidavit for a search warrant. “A warrant based upon an

affidavit containing deliberate falsehood or reckless disregard for the truth violates the

Fourth Amendment and subjects the officer who submitted the affidavit to § 1983

liability.” Block v. Dupic, 758 F.3d 1062, 1063 (8th Cir. 2014) (quotations omitted). 

However, “[a] showing of deliberate or reckless falsehood is not lightly met,” United

States v. Butler, 594 F.3d 955, 961 (8th Cir. 2010) (quotation omitted), and “[m]ere

allegations of deliberate or reckless falsehoods are insufficient,” United States v.

Kattaria, 553 F.3d 1171, 1177 (8th Cir. 2009). 

The Schaffers argue that Officer Foley made deliberately or recklessly false

statements because he included his observation of Callissa’s watery eyes and flushed

face in his affidavit but not in the police report he prepared. However, Officer Foley’s

police report does not contradict his search warrant affidavit merely because the police

report does not repeat everything stated in the affidavit. Therefore, this fact alone

does not demonstrate that the affidavit contained deliberate or reckless falsehoods.

The Schaffers also argue that Officer Foley made deliberately or recklessly false

statements by omitting certain facts from his affidavit. However, “[a] law

enforcement official is not required to include everything he knows about a subject

in his affidavit, whether it is material to a finding of probable cause or not.” Tech.

Ordnance, Inc. v. United States, 244 F.3d 641, 649 (8th Cir. 2011). Thus, omissions

can vitiate a search warrant only if “(1) the police omitted facts with the intent to

make, or in reckless disregard of whether they thereby made, the affidavit misleading,

and (2) the affidavit, if supplemented by the omitted information would not have been

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sufficient to support a finding of probable cause.” Hawkins v. Gage Cty., 759 F.3d

951, 959 (8th Cir. 2014) (quotation omitted). Furthermore, to prove “reckless

disregard,” a plaintiff must “show that the omitted material would be clearly critical

to the finding of probable cause.” Id. (quotation omitted). 

Here, the Schaffers fail to show that Officer Foley acted either intentionally or

with reckless disregard with respect to the alleged omissions. They contend that

Officer Foley should have included information that may have suggested Callissa was

a designated driver, such as her competent driving and positive demeanor, and that he

should have mentioned that none of the officers on the scene positively detected

alcohol on Callissa’s person. Other than mere allegations of “purposeful

misrepresentation,” the Schaffers present no evidence that Officer Foley omitted these

facts with the intent to mislead the magistrate judge. Moreover, they fail to show that

he acted with reckless disregard because none of these facts would be clearly critical

to the finding of probable cause. Although the officers did not notice impaired driving

and could not positively detect alcohol on Callissa’s person, those facts alone would

not negate their suspicions of a violation, especially given the relatively low BAC

limit of .02 for drivers under the age of twenty-one. Because the Schaffers cannot

show that any of these omissions were intentional or reckless, Officer Foley is entitled

to qualified immunity on this claim. 

D.

Jill also argues that the officers retaliated against her for engaging in speech

protected by the First Amendment. To establish a First Amendment retaliation claim,

Jill must show that (1) she engaged in a protected activity, (2) the officers took

adverse action against her that would chill a person of ordinary firmness from

continuing in the activity, and (3) the adverse action was motivated at least in part by

the exercise of the protected activity. See Revels v. Vincenz, 382 F.3d 870, 876 (8th

Cir. 2004). Jill argues that she engaged in a protected activity by criticizing the

officers and stating that she would file a civil rights suit against them. She also alleges

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that the officers took adverse action against her by committing perjury during her trial

for obstruction. 

As a preliminary matter, we recognize that this claim may be barred by the rule

expressed in Heck v. Humphrey, 512 U.S. 477 (1994). Heck states that, in order to

recover damages for “harm caused by actions whose unlawfulness would render a

conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal.” 512 U.S. at 486-87. Jill did not appeal

her obstruction conviction, and a finding of perjury would at least cast doubt on the

validity of that conviction, if not render the conviction invalid. See United States v.

Clay, 720 F.3d 1021, 1025 (8th Cir. 2013) (“A conviction obtained by the knowing

use of perjured testimony is fundamentally unfair, and must be set aside if there is any

reasonable likelihood that the false testimony could have affected the judgment of the

jury.”) (quotation omitted). However, we need not decide whether Heck bars this

claim, because even if the claim is not barred, Jill does not present sufficient evidence

to create a genuine issue of material fact as to whether the officers committed perjury. 

To commit perjury, a person must state, “intentionally and contrary to the oath,

any material matter which the person knows to be false.” SDCL § 22-29-1. In South

Dakota, “minor discrepancies [are] not sufficient to establish perjury.” Orricer v.

State, 181 N.W.2d 461, 465 (S.D. 1970). As evidence of perjury, Jill points to four

instances of the video evidence contradicting the officers’ police reports and trial

testimony. 

First, Jill alleges that Sergeant Nelsen wrote in her police report and testified

that Jill had delayed the investigation by more than two hours, but Sergeant Nelsen

recanted after being confronted with the video time stamps. However, Sergeant

Nelsen’s police report states only that the PBT was taken more than two hours after

the traffic stop, not that Jill delayed the investigation for two hours. Second, Jill

contends that the video evidence is inconsistent with Sergeant Nelsen’s police report

statement that Jill “was interjecting with our conversations again yelling that the

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vehicle was legally parked and to just leave [Sappingfield] alone.” However, the

video evidence is not inconsistent with Sergeant Nelsen’s police report. Jill claims

that the video shows that the officers initiated this interaction and that they asked Jill

to sign for custody of Sappingfield’s vehicle. However, the video from Officer

Beringer’s vehicle shows that Jill initiated this interaction when she returned to the

stop, threatened to sue the officers, and complained about the treatment of

Sappingfield’s vehicle. Third, Officer Wade wrote in her police report and testified

that Jill had brushed up against her, but she recanted after watching the video and

seeing that Jill did not brush up against her. Nevertheless, Officer Wade insisted that

Jill “felt close enough” to feel that Jill was brushing up against her. Lastly, Officer

Beringer wrote in his police report and testified that Jill had interrupted his “attempts

at talking to Callissa,” but the video evidence does not show Officer Beringer actually

speaking to Callissa until he asks her if she will take a PBT.

Even when viewed in the light most favorable to Jill, none of these statements

suggest that any of the officers committed perjury. At most, these statements amount

to minor discrepancies that would not support a finding of perjury. Thus, the officers’

statements do not rise to the level of an adverse action that would chill a person from

engaging in protected activity. See Naucke v. City of Park Hills, 284 F.3d 923, 927-28

(8th Cir. 2002) (holding that multiple instances of city council embarrassing the

plaintiff—including publicly scolding her at city council meetings, publicly calling

her names, and circulating false information about her family—were not “sufficiently

egregious” to satisfy adverse action prong). As such, the officers are entitled to

summary judgment on this claim. 

E.

Lastly, the Schaffers assert that Chief Betzen is liable in both his individual and

official capacities for failing to adequately train, monitor, and discipline his

subordinate officers. They allege that the officers have not been trained to know that

handcuffing and transporting a suspect to a secured area of the VPD converts a

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detainment into an arrest requiring probable cause. They also assert the existence of

a VPD policy authorizing the officers to perform these arrests based only on

reasonable suspicion rather than probable cause. 

“A suit against a public official in his official capacity is actually a suit against

the entity for which the official is an agent.” Elder-Keep v. Aksamit, 460 F.3d 979,

986 (8th Cir. 2006). “The plaintiff must prove that the municipality itself caused the

constitutional violation at issue.” Id. (quotation omitted). “Thus, our first inquiry in

any case alleging municipal liability under § 1983 is the question whether there is a

direct causal link between a municipal policy or custom and the alleged constitutional

deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). To prove the

existence of a policy, a plaintiff must point to “an official policy, a deliberate choice

of a guiding principle or procedure made by the municipal official who has final

authority regarding such matters.” Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th

Cir. 1999). Further, the plaintiff must prove that the policy was the “moving force”

behind a constitutional violation. Id. (quoting Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 694 (1978)). 

A supervisor’s failure to train an inferior officer may subject the supervisor to

liability in his individual capacity only “where the failure to train amounts to

deliberate indifference to the rights of persons with whom the police come into

contact.” Parrish v. Ball, 594 F.3d 993, 1002 (8th Cir. 2010) (quotation omitted). In

addition, the plaintiff must prove that the alleged failure to train “actually caused” a

constitutional deprivation. Id. (quotation omitted). 

Thus, the Schaffers can succeed on their claims only if they can create a

genuine issue of material fact regarding the existence of a policy or failure to train that

actually caused a constitutional violation; that is, the policy or failure to train must

have actually caused Callissa to be arrested without probable cause. However, as in

our analysis of the unlawful seizure claim, we need not decide whether Callissa was

placed under arrest or whether the officers had actual probable cause. Rather, the

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Schaffers’ claim fails because (1) they fail to show the existence of a policy or failure

to train; and (2) even if they did, they have failed to show that such policy or failure

to train actually caused the alleged violation. 

As evidence of a VPD policy or failure to train, the Schaffers point to the

admissions of Officers Foley and Beringer in Jill’s obstruction trial, in which they

admitted that they believed at all times that Callissa was merely “detained” and “not

under arrest.” In addition, they point to Officer Beringer’s trial testimony revealing

that he believed they needed only “reasonable suspicion” to detain Callissa. The

Schaffers argue that this evidence would allow a jury to conclude that a VPD policy

exists that encourages VPD officers to conduct arrests with less than probable cause

and that Chief Betzen failed to train his officers to the contrary. 

However, these statements alone do not create a genuine issue of material fact

regarding the existence of a policy or failure to train. See Atkinson v. City of

Mountain View, 709 F.3d 1201, 1216 (8th Cir. 2013) (affirming summary judgment

where officer testified that his actions were “consistent with his department’s

‘policies, procedures, and guidelines’” but plaintiff “[could] point to no city policy or

custom—written or unwritten”). Although they cite portions of the VPD Police

Manual to show that Chief Betzen is responsible for formulating policy and managing

the department, the Schaffers identify no “official policy” authorizing officers to

perform these types of arrests with less than probable cause. See Mettler, 165 F.3d at

1204. Nor do they identify any evidence showing that Chief Betzen had notice of

such conduct or exhibited any “deliberate indifference” to Fourth Amendment

violations. See Parrish, 594 F.3d at 1002. 

Moreover, even if such a policy or failure to train did exist and even if a

constitutional violation did occur, the Schaffers cannot show that the former caused

the latter. Although “[c]ausation is generally a jury question,” to find that the officers

here would not have detained Callissa even if they believed that they needed probable

cause would be “an exercise in pure speculation.” See Ricketts v. City of Columbia,

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36 F.3d 775, 779-80 (8th Cir. 1994); see also Habiger, 80 F.3d at 297 (rejecting

municipal liability claim without deciding whether “actual probable cause” existed

because, in any event, “inadequate training was not the proximate cause of plaintiff’s

alleged constitutional injury”) (quotation omitted). This is because the officers

nevertheless had arguable probable cause to arrest Callissa. Because the officers had

arguable probable cause, the Schaffers cannot show that the alleged policy or failure

to train was the moving force behind or the actual cause of the alleged violation. See

Escalera v. Lunn, 361 F.3d 737, 749 (2d Cir. 2004) (“[B]ecause each of the individual

defendants had arguable probable cause, the County is likewise entitled to summary

judgment in its favor.”). Therefore, Chief Betzen is entitled to summary judgment on

both the official capacity and individual capacity claims.

III.

For the foregoing reasons, we affirm the district court’s grant of summary

judgment on all claims. 

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