United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-1939

___________

Scott Shepard, *

*

Plaintiff-Appellee, *

*

v. * Appeal from the United States

* District Court for the Southern

Lance Ripperger; Chris Hardy; * District of Iowa.

*

Defendants-Appellants, * [UNPUBLISHED]

*

Des Moines Police Department, *

*

Defendant. *

___________

Submitted: January 14, 2003

Filed: January 29, 2003

___________

Before LOKEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

PER CURIAM.

Scott Shepard is suing Lance Ripperger and Chris Hardy of the Des Moines

Police Department for unreasonable arrest under 42 U.S.C. § 1983 (2000). Ripperger

and Hardy moved for summary judgment, claiming qualified immunity for arresting

Shepard in connection with their official police duties. The district court denied

qualified immunity, and Ripperger and Hardy (the officers) appeal.
-2-

The events leading to Shepard’s arrest began when Shepard’s friend asked him

for help moving furniture to the friend’s former residence. Shepard agreed to help

and arranged for a mutual friend, Brian Peck, to help as well. When Shepard and Peck

arrived with the furniture, a police squad car was at the residence. The landlord

opened the door to the residence, permitting Shepard and Peck to unload the

furnishings. After moving the furniture inside, Shepard went out to the truck. The

police called Peck over to the squad car, asked his name, and informed him they were

investigating the theft of furnishings from the residence, some of which Peck

appeared to have returned. Shepard waited a few minutes then approached his friend

(and the police), asking his friend if he was ready to go. One officer told Shepard,

“we’ll need your name,” to which Shepard responded, “I don’t think so.” The officers

then stepped out of their car and ordered Shepard to place his hands on the hood of

the car. Shepard did so, but immediately moved his hands a few inches above the car,

stating “the hood is hot.” Police arrested Shepard for interference with official acts.

All criminal charges against Shepard were dismissed. 

To avoid summary judgment based on qualified immunity, Shepard must

“assert a violation of a constitutional right, show the alleged right was clearly

established at the time of the alleged violation, and raise a genuine issue of material

fact about whether [the officers] would have known their alleged conduct would have

violated his clearly established right.” Kukla v. Hulm, 310 F.3d 1046, 1048-49 (8th

Cir. 2002). The officers can avoid this lawsuit “if they could have reasonably

believed their conduct was lawful in light of clearly established law and the

information they possessed.” Id. Shepard asserts his right to be free from an

unreasonable seizure, here an arrest lacking probable cause. The right to be free from

unreasonable seizure is clearly established, and not challenged by the officers. The

main issue is whether the officers reasonably believed they had probable cause to

arrest Shepard, thus reasonably believing their actions were lawful. Shepard was

arrested for violating Iowa Code section 719.1, interference with official acts. A

person commits interference with official acts when he “knowingly resists or
-3-

obstructs anyone known by the person to be a peace officer . . . in the performance of

any act which is within the scope of the lawful duty or authority of that officer.” Iowa

Code § 719.1 (2001). The parties disagree about whether the interaction was a

consensual encounter or a Terry stop, and whether Shepard’s refusal to give his name

or place his hands directly on the hot car hood provided probable cause for arrest for

interference with official acts. Having reviewed the denial of summary judgment

based on qualified immunity de novo, viewing all facts and reasonable inferences in

the light most favorable to Shepard, we reverse. 

The officers claim the encounter with Shepard was a Terry stop and, as such,

the officers were permitted to ask questions of Shepard in the course of investigating

the report of stolen furniture. We agree. In our view, the facts described above

warrant the conclusion that the police had reasonable suspicion to justify their Terrybased encounter with Shepard. United States v. Dawdy, 46 F.3d 1427, 1429-30 (8th

Cir. 1995).

The Supreme Court has declined to decide whether a person may be punished

for refusing to identify himself in the context of a lawful investigatory stop that

satisfies the Fourth Amendment. Brown v. Texas, 443 U.S. 47, 53 n.10 (1979).

Because the legality of refusing to identify oneself to police is an open question, it is

not clearly established law for the purpose of denying qualified immunity. Risbridger

v. Connelly, 275 F.3d 565, 572 (6th Cir. 2002); Gainor v. Rogers, 973 F.2d 1379,

1386 n.10 (8th Cir. 1992); Tom v. Voida, 963 F.2d 952, 959 & n.8 (7th Cir. 1992).

The Tenth Circuit has adopted a different view of the open question, concluding that

because the law is not clearly established that a citizen may refuse to answer

questions during an investigative stop, the officer could lawfully arrest the person for

failure to comply. Oliver v. Woods, 209 F.3d 1179, 1189-90 (10th Cir. 2000). The

Ninth Circuit has ruled that arresting a person for refusing to provide his or her name

violates the Fourth Amendment, but this position has not been adopted by other

federal Courts of Appeals or the Supreme Court. See Carey v. Nevada Gaming
-4-

Control Bd., 279 F.3d 873, 881-82 (9th Cir. 2002) (holding arresting a person for

refusing to provide his or her name violates the Fourth Amendment); see also

Risbridger, 275 F.3d at 572 (comparing circuit holdings). Indeed, when reviewing

a Ninth Circuit decision that included this holding, the Supreme Court expressly

declined to decide whether arrest for refusing to give one’s name to the police

violates the Fourth Amendment. Kolender v. Lawson, 461 U.S. 352, 361 n.10 (1983).

The district court cites an Iowa Court of Appeals case that concludes refusing

to give one’s name without some other ground for reasonable suspicion does not

provide probable cause for arrest. See State v. Hauan, 361 N.W.2d 336, 340 (Iowa

Ct. App. 1984). Because the facts in Hauan are distinguishable from the facts in this

case, we do not think Hauan clearly establishes that these officers could not arrest

Shepard for failing to give his name. In Hauan, police arrested a bar patron for

refusing to give his name during an investigation of bar operations. The Iowa Court

of Appeals found that because the officers had no reason to suspect this man of any

crime, the mere fact that he was present during an investigation did not permit the

officers to compel him to reveal his name. Indeed, Hauan distinguishes its facts from

cases where refusal to identify oneself amounts to obstructing justice because there

was probable cause to believe the arrestee was connected to some criminal activity.

Hauan, 361 N.W.2d at 340. An earlier panel of this Court reached similar results

where a person was arrested for walking in the street at 10:30 at night. Fields v. City

of Omaha, 810 F.2d 830, 835 (8th Cir. 1987). We found the person’s presence in the

street did not give rise to reasonable suspicion to demand that the person answer

questions. Id. In contrast, here the officers were investigating a report of stolen

property when Shepard and Peck arrived with the property in question in their truck.

We think these circumstances are sufficiently different from the “in the wrong place

at the wrong time” circumstances in Hauan, thus Hauan does not clearly establish

that the officers could not arrest Shepard for failing to give his name. 
-5-

Because we conclude the law is not clearly established about whether refusing

to identify oneself provides probable cause for arrest, the officers are entitled to

qualified immunity in connection with their official acts. We reverse the district

court’s denial of summary judgment and remand for proceedings consistent with this

opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.