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           Defendants-Appellants,   *       [UNPUBLISHED]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.
       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, 

, 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.” 

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

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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 Terry-
based encounter with Shepard. United States v. Dawdy, 

, 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, 

, 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, 

, 572 (6th Cir. 2002); Gainor v. Rogers, 

,
1386 n.10 (8th Cir. 1992); Tom v. Voida, 

, 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, 

, 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

                                          -3-
Control Bd., 

, 881-82 (9th Cir. 2002) (holding arresting a person for
refusing to provide his or her name violates the Fourth Amendment); see also

(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, 

, 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, 

, 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.

. 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, 

, 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. 

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.




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       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.




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