IN THE SUPREME COURT OF IOWA

No. 21–1992

Submitted December 15, 2022—Filed May 12, 2023

GERI L. WHITE,

Appellant,

vs.

MICHAEL HARKRIDER, CITY OF IOWA CITY, CHRIS WISMAN, and 

JOHNSON COUNTY,

Appellees.

Appeal from the Iowa District Court for Johnson County, Chad Kepros, 

Judge.

Interlocutory appeal and cross-appeal challenging a ruling on a motion to 

dismiss state constitutional tort claims and common law claims arising out of a

warrantless arrest of the plaintiff’s spouse. AFFIRMED IN PART, REVERSED 

IN PART, AND REMANDED.

McDonald, J., delivered the opinion of the court, in which Waterman, 

Mansfield, and Oxley, JJ., joined. McDermott, J., filed an opinion concurring in 

part and dissenting in part, in which Christensen, C.J., joined. May, J., took no 

part in the consideration or decision of the case.

Martin A. Diaz (argued), Swisher, for appellant.
2

Elizabeth J. Craig (argued) and Jennifer L. Schwickerath, Assistant City 

Attorneys, Iowa City, Wilford H. Stone and Daniel M. Morgan of Lynch Dallas, 

PC, Cedar Rapids, for appellees.

Jessica A. Zupp of Zupp and Zupp Law Firm, P.C., Denison, for amicus 

curiae Iowa Association for Justice.

Aaron W. Ahrendson, Assistant County Attorney, Carroll, for amici curiae 

Iowa County Attorney’s Association and Iowa State Association of Counties.

Jason C. Palmer and Benjamin J. Kenkel of Bradshaw, Fowler, Proctor & 

Fairgrave, P.C., Des Moines, for amicus curiae Iowa League of Cities.

Brenna Bird, Attorney General, Samuel P. Langholz, Assistant Solicitor 

General, and Tessa M. Register, Assistant Attorney General, for amicus curiae 

State of Iowa.
3

McDONALD, Justice. 

Geri White filed this civil suit against certain law enforcement officials and 

their employers arising out of the warrantless arrest of her spouse at their 

residence. She asserted state constitutional tort claims as well as common law 

claims for intentional infliction of emotional distress, trespass, and assault. The 

district court granted the defendants’ motion to dismiss the state constitutional 

tort claims but denied their motion to dismiss the common law claims. We 

granted the plaintiff’s application and the defendants’ cross-application for 

interlocutory appeal. For the reasons expressed below, we affirm in part, reverse 

in part, and remand this matter to the district court for further proceedings.

I.

We review a district court’s ruling on a motion to dismiss for the correction 

of legal error. Meade v. Christie, 974 N.W.2d 770, 774–75 (Iowa 2022). “A motion 

to dismiss challenges a petition’s legal sufficiency.” Id. at 775. In reviewing a 

ruling on a motion to dismiss, we “accept[] the facts alleged in the petition as 

true and view[] the allegations in the light most favorable to the plaintiff.” Id.

(citations omitted). Generally, “[m]otions to dismiss are disfavored.” Benskin, 

Inc. v. W. Bank, 952 N.W.2d 292, 296 (Iowa 2020). A party is entitled to dismissal 

only if the petition shows the claim or claims are legally deficient and the plaintiff 

has no right of recovery as a matter of law. Meade, 974 N.W.2d at 775. 

II.

On the evening of June 1, 2019, Deputy Sheriff Chris Wisman, of the 

Johnson County Sheriff’s Office, and Officer Michael Harkrider, of the Iowa City 
4

Police Department, were involved in the investigation of a single-car accident in 

which the driver drove away from the scene. At the scene of the accident, Officer 

Wisman noted a beer can on the road and unused rifle ammunition in the ditch. 

Officer Wisman suspected the driver of the vehicle had lost control of the vehicle 

due to intoxication and had left the scene to avoid detection. It was reported to 

law enforcement that a male driving a Toyota FJ Cruiser left the scene at an 

excessive rate of speed. It was also reported that the FJ Cruiser was substantially 

damaged and missing a tire. 

Law enforcement officials tracked the FJ Cruiser to the residence of Geri 

White (White) and Daniel White (Daniel). “Deputy Wisman and many other 

Johnson County Deputies” along with Officer “Harkrider and many other Iowa 

City Police Officers converged” on the Whites’ home. Law enforcement officials 

surrounded the house with their firearms (handguns, rifles, and shotguns) at 

the ready and deployed a canine unit. They did not knock on the door to see if 

Daniel was inside. Officer Harkrider, using a loudspeaker, announced, 

“Occupants of [the home], this is the Iowa City Police Department. Come to the 

front door. Slowly open it with your hands in the air, empty, and slowly step 

outside. Do it now.” 

White, who was in the home at the time, exited the front door as 

commanded and was “met by numerous law enforcement officers crouched 

behind vehicles, trees, and other objects, with their weapons trained” on her. 

Officer Harkrider and Deputy Wisman ordered White to leave the front stoop and 

approach the law enforcement vehicle parked in the driveway. White initially 
5

refused to leave the stoop and asked “for an explanation for the army in front of 

her home,” but Officer Harkrider demanded she comply and gave her an order 

to do so. White left the front stoop of her home, walked to the marked patrol car, 

and spoke with Deputy Wisman. She answered his questions. After she answered 

his questions, “law enforcement disbanded its perimeter and overwhelming show 

of force.” White was not arrested.

Daniel, who was also in the home, was then arrested. He was charged with 

operating while intoxicated. In the subsequent criminal case for that charge, 

Daniel filed a motion to suppress evidence, contending his arrest was unlawful. 

The motion to suppress was denied. He later entered into a plea agreement in 

which the charge of operating while intoxicated was dismissed.

White filed this civil suit against Deputy Wisman, Johnson County, Officer 

Harkrider, and the City of Iowa City based on law enforcement’s entry onto her 

property and subsequent show of force. In her amended petition, White asserted 

state constitutional tort claims pursuant to Godfrey v. State, 898 N.W.2d 844 

(Iowa 2017), overruled by Burnett v. Smith, ___ N.W.2d___ (Iowa 2023). 

Specifically, she asserted claims for: (1) violation of her right to freedom of 

movement under article I, section 1 of the Iowa Constitution; (2) violation of her 

right to liberty and property under article I, section 1 of the Iowa Constitution; 

and (3) violation of her right to be free from unreasonable seizure and to be free 

of excessive force under article I, section 8 of the Iowa Constitution. She also 

asserted common law claims for intentional infliction of emotional distress, 

trespass, and assault.
6

The defendants moved to dismiss White’s claims.1 The district court 

granted the defendants’ motions with respect to White’s state constitutional tort 

claims. The district court held that article I, sections 1 and 8 were not 

self-executing and could not support claims for monetary relief. In addition, the 

district court held that even if these provisions were self-executing, state 

constitutional tort claims were available only against the state and its employees 

and not against municipalities and their employees. The district court further 

held there was no reason to create additional state constitutional tort claims in 

this case because common law causes of action could provide White relief. The 

district court denied the defendants’ motion to dismiss White’s claims for 

intentional infliction of emotional distress, trespass, and assault. The district 

court reasoned that the plaintiff “ha[d] met notice pleading standards” and that

the court could not say there was no set of facts under which the plaintiff might 

be entitled to relief. 

III.

We first address White’s interlocutory appeal of the district court’s 

dismissal of her state constitutional tort claims. Six years ago in Godfrey, this 

court held that a plaintiff could pursue a direct constitutional tort claim for 

alleged violations of the due process clause of the Iowa Constitution. 898 N.W.2d 

1The defendants attached to their motion to dismiss the suppression ruling from Daniel’s 

criminal case. On appeal, the parties dispute whether this court can take judicial notice of and 

consider the suppression ruling in evaluating the ruling on the motion to dismiss. We need not 

resolve that dispute, however, because it is immaterial to our resolution of the issues. The only 

issue resolved in the motion to suppress was whether Daniel was lawfully seized inside the home, 

which is not at issue in this case.
7

at 871–72. Further research, reflection, and litigation have shown that decision 

to be demonstrably erroneous and unworkable in practice. For the reasons set 

forth in Burnett, ___ N.W.2d___, Godfrey has been overruled. White’s

constitutional tort claims thus cannot proceed. We affirm the district court’s 

dismissal of these claims.

IV.

We now address the defendants’ cross-interlocutory appeal of the district 

court’s denial of their motions to dismiss White’s common law claims for 

intentional infliction of emotional distress, trespass, and assault. 

A.

White’s amended petition avers the defendants’ conduct constitutes 

intentional infliction of emotional distress. A claim of intentional infliction of 

emotional distress requires the plaintiff to prove: (1) the defendants engaged in 

extreme and outrageous conduct; (2) the defendants intentionally caused, or 

recklessly disregarded the likelihood of causing, severe or extreme emotional 

distress to the plaintiff; (3) the plaintiff in fact suffered severe or extreme 

emotional distress; and (4) the defendants’ extreme and outrageous conduct was 

the actual and proximate cause of the severe or extreme emotional distress.

Lennette v. State, 975 N.W.2d 380, 391–92 (Iowa 2022); Hedlund v. State, 930 

N.W.2d 707, 723–24 (Iowa 2019). To be actionable, the allegedly tortious conduct 

must be “so extreme in degree, as to go beyond all possible bounds of decency, 

and to be regarded as atrocious, and utterly intolerable in a civilized community.” 

Fuller v. Loc. Union No. 106 of the United Bhd. of Carpenters & Joiners, 567 
8

N.W.2d 419, 423 (Iowa 1997) (quoting Harsha v. State Sav. Bank, 346 N.W.2d 

791, 801 (Iowa 1984)). 

“[I]t is for the court to determine in the first instance, as a matter of law, 

whether the conduct complained of may reasonably be regarded as outrageous.” 

Hedlund, 930 N.W.2d at 724 (quoting Cutler v. Klass, Whicher & Mishne, 473 

N.W.2d 178, 183 (Iowa 1991)); see also Lennette, 975 N.W.2d at 391–92. Because 

the determination of whether conduct is sufficiently outrageous to permit 

recovery is a legal question, a claim of intentional infliction of emotional distress 

can be resolved at the motion to dismiss stage in those cases where the 

allegations in the petition, when taken as true, do not assert legally outrageous 

conduct. See, e.g., Van Baale v. City of Des Moines, 550 N.W.2d 153, 157 (Iowa 

1996) (affirming grant of motion to dismiss where allegations in petition, even 

when taken as true, did not constitute legally actionable outrageous conduct), 

abrogated on other grounds by Godfrey, 898 N.W.2d 844; M.H. v. State, 385 

N.W.2d 533, 540 (Iowa 1986) (recognizing motion to dismiss is properly 

sustained if the court can “conclude that no state of facts is conceivable under 

which plaintiffs might prove their right of recovery”); see also Paul v. Humana 

Med. Plan, Inc., 682 So. 2d 1119, 1122 (Fla. Dist. Ct. App. 1996) (stating it was 

for court to determine whether conduct was “so extreme and outrageous as to 

permit recovery” and affirming dismissal of intentional infliction of emotional 

distress claim (quoting Scheller v. Am. Med. Int’l, Inc., 502 So. 2d 1268, 1271 

(Fla. Dist. Ct. App. 1987))); Murphy v. Am. Home Prods. Corp., 448 N.E.2d 86, 90 

(N.Y. 1983) (affirming dismissal of intentional infliction of emotional distress
9

claim where facts alleged in the petition fell short of the “strict standard” for 

extreme and outrageous conduct), superseded by statute on other grounds, N.Y. 

Lab. Law § 740 (McKinney 1989); Pollock v. Rashid, 690 N.E.2d 903, 909 (Ohio 

Ct. App. 1996) (per curiam) (affirming grant of motion to dismiss where “conduct 

alleged in the complaint [did] not, as a matter of law, rise to the extreme and 

outrageous level necessary for a prima facia case of intentional infliction of 

emotional distress”); c.f. Osprey Cove Real Est., LLC v. Towerview Constr., LLC, 

808 S.E.2d 425, 429 (Ga. Ct. App. 2017) (reversing denial of motion to dismiss 

intentional infliction of emotional distress claim);.

Accepting the allegations in White’s petition as true, several considerations 

lead us to conclude the conduct alleged does not meet the high standard—

conduct so extreme in degree, as to go beyond all possible bounds of decency, 

and to be regarded as atrocious, and utterly intolerable in a civilized 

community—that would permit recovery for a claim of intentional infliction of 

emotional distress. First, the alleged criminal conduct under investigation was 

serious in nature and warranted a serious response. Law enforcement officials 

were engaged in an active investigation of a one-vehicle car accident where the 

driver fled the scene at an excessive rate of speed in a substantially damaged 

vehicle missing a tire. A beer can and unused ammunition were found at the 

scene of the accident. The petition states that Officer Wisman suspected the 

driver fled because he was intoxicated. The ammunition supported the additional 

inference the driver was armed. Operating while intoxicated “is a relatively 

serious crime within the spectrum of prohibited acts in Iowa. It is the type of 
10

crime that can support a warrantless entry into a home if probable cause and 

exigent circumstances are present.” State v. Lovig, 675 N.W.2d 557, 565 (Iowa 

2004). 

Second, in investigating this serious crime and arresting the suspect, law 

enforcement officials were statutorily authorized to use “any force which the 

peace officer[s] reasonably believe[d] to be necessary to effect the arrest or to 

defend any person from bodily harm while making the arrest.” Iowa Code 

§ 804.8(1) (2019). The statutory authorization to use force cuts against the claim 

that the law enforcement officials engaged in outrageous conduct beyond the 

bounds of all decency.

Third, although statutorily authorized to use force, the law enforcement 

officials only made a show of force and only did so for a limited time. They did 

not fire any shots. They did not breach the home. They did not arrest White. 

They did not physically restrain White. They did not touch White. According to 

White’s petition, the defendants disbanded their perimeter as soon as she 

finished speaking with them and allowed her to reenter her home.

The defendants’ show of force for a limited period of time outside the home 

in effecting an arrest of a potentially armed suspect for a serious crime, where 

the home was not breached, where no shots were fired, where the plaintiff was 

not the target of the conduct, where the plaintiff was not arrested, and where the 

plaintiff was not physically restrained or touched was not “so extreme in degree, 

as to go beyond all possible bounds of decency, and to be regarded as atrocious, 

and utterly intolerable in a civilized community.” Fuller, 567 N.W.2d at 423 
11

(quoting Harsha, 346 N.W.2d at 801); see, e.g., Ramirez v. City of San Jose, 

No. 21–cv–08127–VKD, 2022 WL 3139521, at *10 (N.D. Cal. Aug. 5, 2022) 

(dismissing claim for intentional infliction of emotional distress and holding 

show-of-force public arrest was insufficient as matter of law); Quinn v. Zerkle, 

Nos. 2:21–cv–00421, 2:21–cv–00427, 2021 WL 6050656, at *8 (S.D. W. Va. 

Dec. 20, 2021) (dismissing claim of intentional infliction of emotional distress 

where officers surrounded plaintiff’s home in search of another and breached 

home without warrant); Ledford v. Rutledge, No. 1:17–CV–438–TLS, 2018 WL 

4216820, at *7 (N.D. Ind. Sept. 4, 2018) (concluding excessive show of force in 

effecting arrest did “not rise to the ‘extreme and outrageous’ level required for an 

intentional infliction of emotional distress claim”); Pierre v. City of Miramar, 

No. 12–CV–60682, 2012 WL 12895745, at *8 (S.D. Fla. Aug. 15, 2012), 

(dismissing claim of intentional infliction of emotional distress where police 

engaged in “overwhelming show of force,” surrounded plaintiff’s “home with their 

guns drawn,” “ordered him out of his home,” “shined a bright floodlight directly 

in his fac[e],” and “pointed guns at him from all directions”), aff’d in part, vacated 

in part, 537 F. App’x 821 (11th Cir. 2013) (per curiam). 

We reverse the district court’s ruling denying the defendants’ motion to 

dismiss White’s claim for intentional infliction of emotional distress. 

B.

We next address the district court’s denial of the defendants’ motion to 

dismiss White’s trespass claim. The general rule in Iowa is that “[e]very 

unauthorized entry is a trespass, regardless of the degree of force used, even if 
12

no damage is done, or the injury is slight . . . . It will be presumed that injury 

resulted even if it was no more than the trampling of herbage.” Iowa State 

Highway Comm’n v. Hipp, 147 N.W.2d 195, 199 (Iowa 1966) (quoting 87 C.J.S. 

Trespass § 13b, at 965–66 (1954)). However, it is incumbent on the plaintiff to 

plead or prove the alleged trespasser was “not rightfully upon the property of 

another, but enter[ed] it without consent, either express or implied, of the owner 

or occupier.” Id.

Even when the amended petition is viewed in the light most favorable to 

White, her trespass claim fails as a matter of law because the law enforcement 

officials had a legal right to enter White’s property. This court resolved this issue 

in State v. Van Rees, 246 N.W.2d 339, 343 (Iowa 1976). In that case, the 

defendant departed the scene of a single-car accident, and several neighbors 

reported this to the sheriff’s office. Id. at 341. A deputy went to the defendant’s 

residence to investigate and walked into the defendant’s yard where the 

defendant was speaking to another individual. Id. The defendant ordered the 

deputy off his property, which the deputy refused to do. Id. They got into a 

rancorous verbal dispute that escalated into a physical altercation that 

ultimately resulted in the deputy shooting the defendant “in the leg to avoid, 

according to him, serious physical assault.” Id.

The defendant was charged with willfully resisting an officer, and he 

defended on the ground that the officer had trespassed on his property. Id. at 

341, 343. We rejected the argument, stating, “We cannot agree that an officer is 

acting illegally when he entered upon a person’s property to question him in 
13

investigating a complaint that a crime has been committed. Ordinarily an officer 

of the law who goes upon private property under such circumstances is not a 

trespasser.” Id. at 343. We concluded:

In the present case, Deputy Smith had been directed to 

investigate the hit-and-run accident. Leaving the scene of an 

accident is a misdemeanor. Law officers, including deputy sheriffs, 

are obligated . . . to investigate crimes. We hold Smith was entitled 

to enter defendant’s premises to carry out this duty. For this 

limited purpose he was not a trespasser and did not require 

defendant’s consent.

What we have said does not, of course, permit an officer to 

enter one’s home or to conduct a search or make a seizure without 

a warrant or other authority.

Id. (emphasis added) (citations omitted). 

Our decision in Van Rees is controlling here. See id.; see also Lovig, 675 

N.W.2d at 565 (stating operating while intoxicated investigation can support 

entry into home where probable cause and exigent circumstances are present); 

Long v. Lauffer, No. 09–1916, 2011 WL 222530, at *9 (Iowa Ct. App. Jan. 20, 

2011) (“When an officer has entered private property to investigate a complaint 

that a crime has been committed, the officer ordinarily has not committed a 

trespass.”). 

Further, our holding in Van Rees is consistent with the general rule in this 

country: there is a “privilege to enter property to effect an arrest or enforce the 

criminal law under certain circumstances.” Cedar Point Nursery v. Hassid, 141 

S. Ct. 2063, 2079 (2021); see 75 Am. Jur. 2d Trespass § 78, at 82 (2007) (“An 

officer of the law is privileged to make an entry to . . . arrest for a criminal 

offense.”); Restatement (Second) of Torts § 204 cmt. g, at 383 (Am. L. Inst. 1965) 
14

(“[T]he fact that the actor in attempting or making an arrest uses excessive force 

. . . does not destroy his privilege to be upon the land for the purpose of effecting 

the arrest . . . .”); see also State v. Dugan, 555 P.2d 108, 110 n.1 (Ariz. 1976) 

(en banc) (“[W]hen the performance of his duty requires an officer of the law to 

enter upon private property, his conduct, otherwise a trespass, is justifiable.”) 

(quoting Giacona v. United States, 257 F.2d 450, 456 (5th Cir. 1958)); Heinze v. 

Murphy, 24 A.2d 917, 922 (Md. 1942) (“It is not a trespass for an officer of the 

law to go upon another’s premises in the line of his duty, although his conduct 

afterward may make it a trespass.”); Sterling v. City of Albany, 545 P.2d 1386, 

1389 (Or. Ct. App. 1976) (officer’s entry into a business without consent to 

investigate crime was not trespass), aff’d, 555 P.2d 23 (Or. 1976) (en banc);

Storms v. State, 590 P.2d 1321, 1323 (Wyo. 1979) (“If an officer goes upon private 

premises in the performance of a duty and is investigating a criminal complaint 

he is not a trespasser. . . . As a matter of fact it is the duty of a police officer to 

investigate possible violation of law.” (citation omitted)).

We reverse the district court’s ruling denying the defendants’ motion to 

dismiss White’s trespass claim.

C.

Finally, we address White’s common law assault claim. Civil assault 

requires proof of the following elements: “(1) an act intended to put another in 

fear of physical pain or injury; [or] (2) an act intended to put another in fear of 

physical contact which a reasonable person would deem insulting or offensive; 

and the victim reasonably believes that the act may be carried out immediately.” 
15

Greenland v. Fairtron Corp., 500 N.W.2d 36, 38 n.4 (Iowa 1993) (alteration in 

original). “[A]cts threatening violence to the person of another, coupled with the

means, ability, and intent to commit the violence threatened, constitute an 

assault.” Holdorf v. Holdorf, 169 N.W. 737, 738 (Iowa 1918). 

When the plaintiff’s pleading is viewed in the light most favorable to her, 

she has sufficiently pleaded an assault. White alleges the defendants arrived at 

her home and engaged in a show of force disproportionate to the offense being 

investigated. She was present in the home and not a subject of the criminal 

investigation. When she exited her home on the defendants’ command, she found 

many deputies and officers with their firearms trained on her. While the 

defendants’ conduct was not beyond the bounds of all decency in a civilized 

society, it could put a person in fear of physical pain or injury. Indeed, our courts 

have held that confronting another with a shotgun is substantial evidence in 

support of a jury’s verdict finding civil assault by a private person. E.g.,

Schneider v. Middleswart, 457 N.W.2d 33, 34–35 (Iowa Ct. App. 1990). 

The defendants contend they are nonetheless entitled to dismissal because 

their actions as peace officers were justified as a matter of law. See, e.g., Iowa 

Code § 804.8(1). We disagree. This matter comes before the court at the motion 

to dismiss stage, which tests only the sufficiency of the plaintiff’s petition. Meade, 

974 N.W.2d at 774–75. A party is entitled to dismissal only when the petition

shows the claim or claims are legally deficient and the party has no right of 

recovery under any state of facts. Id. Justification is an affirmative defense to 

assault that the defendants must plead and prove. State v. Kuhse, 937 N.W.2d 
16

622, 627 (Iowa 2020) (“[J]ustification is an affirmative defense . . . .” (quoting 

State v. Delay, 320 N.W.2d 831, 833 (Iowa 1982))); Wessman v. Sundholm, 291 

N.W. 137, 138–39 (Iowa 1940) (stating justification is an “affirmative defense” to 

assault and battery); Hill v. Rogers, 2 Iowa (Clarke) 67, 68 (1855) (treating 

justification as affirmative defense and fact question for jury); Erickson v. Saks, 

No. 08–0774, 2009 WL 143413, at *3 (Iowa Ct. App. Jan. 22, 2009) (stating 

justification is affirmative defense). This is an objective reasonableness standard.

Chelf v. Civ. Serv. Comm’n, 515 N.W.2d 353, 355 (Iowa Ct. App. 1994).

It is true that “a plaintiff may plead himself out of court” with respect to 

an affirmative defense. Benskin, 952 N.W.2d at 299 (“A defendant may raise the 

statute of limitations by a motion to dismiss if it is obvious from the 

uncontroverted facts contained in the petition that the applicable statute of 

limitations bars the plaintiff’s claim for relief.” (quoting Venckus v. City of Iowa 

City, 930 N.W.2d 792, 809 (Iowa 2019))); see also Mormann v. Iowa Workforce

Dev., 913 N.W.2d 554, 575 (Iowa 2018) (“[A] plaintiff may plead himself out of 

court by alleging facts that provide the [defendant] with a bulletproof defense 

and foreclose application of equitable tolling,” which is generally a fact-intensive 

inquiry.). But White has not done so here. See Johnson v. Civ. Serv. Comm’n, 352 

N.W.2d 252, 257 (Iowa 1984) (stating a peace officer who used force can commit 

assault “if the peace officer does not reasonably believe the particular force was 

necessary in the circumstances”); see also Sullivan v. Gagnier, 225 F.3d 161, 

165–66 (2d Cir. 2000) (per curiam) (“The force used by the officer must be 
17

reasonably related to the nature of the resistance and the force used, threatened, 

or reasonably perceived to be threatened, against the officer.”). 

The defendants’ affirmative defense should be raised at summary 

judgment or proved at trial. The district court did not err in denying the 

defendants’ motion to dismiss White’s assault claim.

V.

We affirm the district court’s dismissal of White’s state constitutional tort 

claims. We reverse the district court’s denial of the defendants’ motion to dismiss 

White’s claims for intentional infliction of emotional distress and trespass. We 

affirm the district court’s denial of the defendants’ motion to dismiss White’s 

claim for assault. We remand this matter for further proceedings consistent with 

this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Waterman, Mansfield, and Oxley, JJ., join this opinion. McDermott, J. files 

an opinion concurring in part and dissenting in part, in which Christensen, C.J., 

joins. May, J., takes no part.
18

#21–1992, White v. Harkrider

McDERMOTT, Justice (concurring in part and dissenting in part).

Although I concur in the majority’s dismissal of White’s constitutional 

claims and in its decision not to dismiss White’s common law assault claim, I 

respectfully dissent from its dismissal of her other two common law claims. The 

majority errs, in my view, in reversing the district court and dismissing her 

common law claims for intentional infliction of emotional distress and trespass.

Dismissing these claims at this stage of the proceedings is an 

extraordinary step. This case comes to us on appeal from a ruling on a motion 

to dismiss under Iowa Rule of Civil Procedure 1.421(1)(f). At the motion to 

dismiss stage, the plaintiff’s petition must simply contain factual allegations that 

give the defendant “fair notice” of the claim so the defendant can adequately 

respond to the petition. Schmidt v. Wilkinson, 340 N.W.2d 282, 283 (Iowa 1983)

(quoting Gosha v. Woller, 288 N.W.2d 329, 331 (Iowa 1980)). A petition meets the 

“fair notice” requirement if it informs the defendant of the events that give rise 

to the claim and of the claim’s general nature. Soike v. Evan Matthews & Co., 

302 N.W.2d 841, 842 (Iowa 1981).

We take a dim view of an attempt to strike a claim through a motion to 

dismiss. And we haven’t been subtle in articulating this point. “Generally, a 

motion to dismiss should not be granted.” Weizberg v. City of Des Moines, 923 

N.W.2d 200, 217 (Iowa 2018). “Nearly every case will survive a motion to dismiss 

under notice pleading.” U.S. Bank v. Barbour, 770 N.W.2d 350, 353 (Iowa 2009).

“A motion to dismiss is properly granted ‘only when there exists no conceivable 
19

set of facts entitling the non-moving party to relief.’ ” Rees v. City of Shenandoah, 

682 N.W.2d 77, 79 (Iowa 2004) (quoting Barkema v. Williams Pipeline Co., 666 

N.W.2d 612, 614 (Iowa 2003)). We have drawn a bright line with motion to 

dismiss practice in our courts—one that has delivered clarity and predictability 

for the bench and bar alike. Today’s opinion undermines that.

On White’s claim for intentional infliction of emotional distress, the 

majority today grants the defendants’ motion to dismiss because it concludes 

that the allegations fail to establish the conduct at issue was “outrageous.” Yet 

more than thirty years ago in M.H. v. State, we analyzed the precise question of 

when—at what stage—courts should determine whether alleged conduct meets 

the “outrageous” threshold in an intentional infliction of emotional distress 

claim. 385 N.W.2d 533, 540 (Iowa 1986). We declared: “We have recognized the 

principle that it is for the court to determine in the first instance, as a matter of 

law, whether the conduct complained of may reasonably be regarded as 

outrageous. However, this determination will generally not take place on a motion 

to dismiss.” Id. (emphasis added) (citations omitted).

The reason for this, as we explained, is simple: 

Under “notice pleading,” all that is required is a short and plain 

statement of the claim for relief, with no requirement of pleading 

specific facts. In order to sustain a motion to dismiss for failure to 

state a claim for relief, we must conclude that no state of facts is 

conceivable under which plaintiffs might prove their right of 

recovery. . . . The issue whether such facts are present “is more 

appropriately resolved upon presentation of evidence through 

summary judgment . . . or by trial.”

Id. (second omission in original) (citations omitted) (quoting Van Meter v. Van 

Meter, 328 N.W.2d 497, 498 (Iowa 1983) (en banc)). We thus held in M.H. that 
20

“[t]he district court correctly determined that this”—a motion to dismiss—“was 

not the proper stage of the trial to make this decision.” Id. Despite all the 

language quoted above, and despite our holding in the case affirming the denial 

of the motion to dismiss, the majority cites M.H. to suggest it somehow supports 

the decision to dismiss the intentional infliction of emotional distress claim in 

this case. Not at all.

Our holding in M.H. is not an outlier. In Van Meter v. Van Meter, for 

instance, we similarly rejected an attempt to toss an intentional infliction of

emotional distress claim on a motion to dismiss. 328 N.W.2d at 498. We stated, 

“We cannot conclude as a matter of law that no facts are conceivable under which 

a claim for intentional infliction of emotional distress could be maintained . . . .”

Id.; see also Grimm v. U.S. W. Commc’ns, Inc., 644 N.W.2d 8, 17 (Iowa 2002)

(reversing the grant of a motion to dismiss and noting that the plaintiff “could 

simply have alleged in general terms the elements of an intentional-infliction-ofemotional distress claim and survived [the] motion to dismiss”). I have been able 

to locate, and the majority cites, only one instance when we’ve ever affirmed a 

motion to dismiss an intentional infliction of emotional distress claim: Van Baale 

v. City of Des Moines, 550 N.W.2d 153, 156–57 (Iowa 1996), abrogated on other 

grounds by Godfrey v. State, 898 N.W.2d 844 (Iowa 2017), overruled by Burnett v. 

Smith, ___ N.W.2d ___ (Iowa 2023). That case is the outlier.

Every other Iowa case that the majority cites as supporting dismissal of 

the intentional infliction of emotional distress claim had in fact already 

progressed past the motion to dismiss stage to either the summary judgment or 
21

trial stage. See, e.g., Lennette v. State, 975 N.W.2d 380, 391–92 (Iowa 2022) 

(summary judgment); Hedlund v. State, 930 N.W.2d 707, 723–24 (Iowa 2019)

(summary judgment); Fuller v. Loc. Union No. 106 of the United Bhd. of Carpenters 

& Joiners, 567 N.W.2d 419, 421, 423 (Iowa 1997) (summary judgment); Harsha

v. State Sav. Bank, 346 N.W.2d 791, 793–94, 801 (Iowa 1984) (trial). The majority 

cites a handful of federal cases, but as we’ve recognized repeatedly, the federal 

rules of civil procedure implement a different, heightened pleading standard that 

we’ve refused to adopt for pleadings under the Iowa Rules of Civil Procedure. See 

Hawkeye Foodservice Distrib., Inc. v. Iowa Educators Corp., 812 N.W.2d 600, 608 

(Iowa 2012) (declining “to depart from our well-established standard for 

reviewing a motion to dismiss” in favor of the federal approach).

Setting aside whether a motion to dismiss is the appropriate vehicle to 

dismiss this claim (and it isn’t), I have a more fundamental disagreement with 

the majority’s determination that there’s no conceivable way (as our standard 

frames it) that the alleged conduct could establish an intentional infliction of 

emotional distress claim. When we take up a motion to dismiss, we assume that 

all the facts alleged in the plaintiff’s petition are true. McGill v. Fish, 790 N.W.2d 

113, 116 (Iowa 2010). This is because the only thing at issue is the plaintiff’s

“right of access to the district court, not the merits of his allegations.” Richards 

v. Iowa Dep’t of Revenue & Fin., 454 N.W.2d 573, 574 (Iowa 1990). We view the 

plaintiff’s petition “in the light most favorable to the plaintiff and resolve[] any 

doubts in the plaintiff’s favor.” Young v. HealthPort Techs., Inc., 877 N.W.2d 124, 

128 (Iowa 2016). Contrary to the indulgent view that we adopt when assessing 
22

the adequacy of a plaintiff’s allegations at the motion to dismiss stage, the 

majority seems to take the least generous view possible of her allegations.

From the petition, we assume as true that law enforcement officers 

stationed approximately ten vehicles outside White’s home. The amassed 

officers—in an “overwhelming show of force,” with handguns and rifles or 

shotguns in hand and at the ready, and assisted by a K-9 unit—established a 

perimeter around her home. No one came to her door. Rather, one of the officers, 

through a sound amplifier, identified himself and the others surrounding her 

home as police. He demanded that the occupants of the home immediately come 

to the front door, open it slowly with their hands empty and in the air, and step 

outside. White initially refused to leave her home, so the officer gave her a “lawful 

order” commanding that she do so. When she opened her front door and walked 

out onto the stoop, she saw the officers crouched behind vehicles, trees, and 

other objects, with their firearms trained on her. She slowly walked, as 

commanded, to one of the marked police cars stationed in her driveway, where 

an officer began questioning her. After this interview, and after the amassed 

officers eventually disbanded, she was allowed to return to her home. 

I suspect that few Iowans have ever been commandeered out of their 

homes to face the possible life-altering—if not life-ending—prospect of nearly a 

dozen armed officers hunkered and in position with firearms aimed at them. I 

further suspect, if it did happen, those standing on their stoops as the potential 

target of all that primed lethal force might legitimately claim that it caused 

“severe or extreme emotional distress.” Hedlund, 930 N.W.2d at 723–24 (reciting 
23

the elements of an intentional infliction of emotional distress claim). These 

events, if true (as we must assume), strike me as more than sufficient—and 

certainly “conceivable”—to get past a motion to dismiss.

The majority’s suggestion that the defendants’ actions can’t be considered 

“outrageous” because the ordeal lasted a limited period of time, or that no shots 

were ultimately fired at her, or that no one physically touched her, fall far short 

of conclusively negating any right to relief. Even if one were to find the majority’s 

counterpoints individually or collectively persuasive, the motion to dismiss stage 

isn’t designed to weigh competing facts like this. “If a claim is ‘at all debatable,’ 

we have advised against the filing or sustaining of a motion to dismiss.” 

Weizberg, 923 N.W.2d at 217 (quoting Renander v. Inc., Ltd., 500 N.W.2d 39, 41 

(Iowa 1993)). White’s petition offers no conceivable set of facts to support her 

claim for intentional infliction of emotional distress? Her claim isn’t even at all 

debatable? I can’t get on board.

The majority’s dismissal of White’s separate trespass claim suffers from 

similar defects. Neither the majority opinion nor the defendants’ brief cites any

case in which our court has affirmed the grant of a motion to dismiss a common

law trespass claim. The principal Iowa case that the majority relies on, State v. 

Van Rees, 246 N.W.2d 339 (Iowa 1976), is a criminal case involving a 

misdemeanor resisting-arrest conviction, not a civil trespass case. The trespass 

issue in Van Rees only came up because the defendant argued in part that he 

was entitled to resist the officer because the officer was a trespasser on his 

property. Id. at 343. 
24

In this case, any claim that the police were lawfully present on White’s 

property would be pleaded as an affirmative defense—namely, “justification”—to

White’s trespass claim. And with affirmative defenses at the motion to dismiss 

stage, we’ve said: “A motion to dismiss assumes the truth of facts well pleaded 

in the pleading attacked but is not a proper vehicle for the submission 

of affirmative defenses.” Harrison v. Allied Mut. Cas. Co., 113 N.W.2d 701, 702 

(Iowa 1962). This makes sense because an affirmative defense doesn’t appear in 

a plaintiff’s petition (which, again, is our focus in a motion to dismiss).

2

The defendant typically bears the burden to plead and prove an affirmative 

defense. Iowa R. Civ. P. 1.419; 71 C.J.S. Pleading § 741, at 750–51 (2022). “When 

a party invokes an affirmative defense to avoid liability, that party should be 

forthcoming about why the defense applies rather than expecting the opposing 

party to seek out evidence to rebut that affirmative defense.” Breese v. City of 

Burlington, 945 N.W.2d 12, 23 (Iowa 2020) (emphasis added). Our own appellate 

rules say that the principle in play here—that “[o]rdinarily, the burden of proof 

on an issue is upon the party who would suffer loss if the issue were not 

established”—is “so well established that authorities need not be cited in support 

of” it. Iowa R. App. P. 6.904(3)(e).

It’s not for us to plead, prove, and weigh a defendant’s potential affirmative 

defense of justification in a preanswer motion to dismiss. Indeed, when the 

2We have considered statute of limitations defenses presented in a motion to dismiss, but 

we only do so “when the necessary facts appear on the face of the pleadings.” Neylan v. Moser, 

400 N.W.2d 538, 541 (Iowa 1987) (“[O]therwise by affirmative defense and motion for summary 

judgment.”).
25

defendants filed their motion to dismiss, none had yet pleaded any affirmative 

defenses (justification or otherwise) in the case. Today’s holding in effect imposes 

a new requirement that parties asserting common law claims must draft their 

petitions to preemptively plead around a speculative justification defense that a 

defendant may later assert. That would be a significant change in our law.

And even if we were to consider and evaluate hypothetical affirmative 

defenses at the motion-to-dismiss stage, we should still refuse to dismiss the 

trespass claim here. Suffice it to say, this case doesn’t present what we might 

consider run-of-the-mill police investigative activity. It involved a large 

assemblage of officers (with approximately ten police cars) crouched and ready 

with guns drawn and aimed at White, who had been commanded to slowly leave 

her home. The parties should have an opportunity to present their evidence for 

a full and fair resolution of the trespass claim’s viability and any affirmative 

defenses that the defendants might choose to plead.

Of course, we already have a well-developed procedural device that allows 

for the speedy disposition of claims without the need for a trial when a plaintiff

is unable to provide sufficient evidence to support a claim: summary judgment. 

Iowa R. Civ. P. 1.981. There are, as we’ve repeatedly recognized, important 

differences between motions to dismiss and motions for summary judgment, and 

thus good reasons for the different analytical standards that we’ve applied to 

them throughout our court’s history. E.g., Rees, 682 N.W.2d at 79; Cutler v. 

Klass, 473 N.W.2d 178, 181 (Iowa 1991).
26

With today’s holding, the majority at best blurs, and at worst erases, clear 

procedural standards that have long provided simple, predictable application to 

judges and litigants. I believe that the district court correctly applied our motion

to dismiss standards in this case, and I thus respectfully dissent from the 

majority’s reversal of the district court’s ruling and dismissal of White’s 

intentional infliction of emotional distress and trespass claims.

Christensen, C.J., joins this concurrence in part and dissent in part.