Baldwin v. Estherville (333 F. Supp. 3d 817, 2018)

MARK W. BENNETT, U.S. DISTRICT COURT JUDGE

TABLE OF CONTENTS

I. INTRODUCTION...823

A. Factual Background...823

B. Procedural Background...824

II. THE CITY'S MOTION TO AMEND ITS ANSWER...826

A. Arguments Of The Parties...826

B. Analysis...827

1. Applicable standards...827

2. Application of the standards...828

3. Summary...832

III. THE RENEWED MOTION FOR SUMMARY JUDGMENT...833

A. The Pending Motion...833

B. Summary Judgment Standards...833

C. The Iowa Constitutional Claims...834

1. Nature of the claim or claims...834

2. The Iowa constitutional violation...835

a. Arguments of the parties...835

b. Discussion...835

i. Requirements of the Iowa Constitution...835

ii. Application of the Iowa standards...838

c. Summary ...840 3. "All due care" qualified immunity...840

a. Arguments of the parties...841

b. Discussion...841

i. Who decides the defense and when?...841

ii. The "all due care" defense...842

iii. "All due care" of the officers...845

c. Summary...848

IV. CERTIFICATION OF ADDITIONAL QUESTIONS...848

A. Standards For Certification...848

B. Questions Of First Impression...849

1. Questions already identified...849

2. Additional questions...850

C. Application Of The Certification Standards ...851

D. Opportunity To Refine Or Add To The Questions To Be Certified...852

V. CONCLUSION...852

This case arises from the plaintiff's arrest by city police officers for riding his ATV on and in a ditch beside a city street, allegedly in violation of a state statute that the officers believed had been, but was not, incorporated into the city's code of ordinances. Although I granted summary judgment for the city and the individual police officers on the plaintiff's claim of violation of the Fourth Amendment to the United States Constitution and his claim of false arrest, I reserved ruling on the plaintiff's claims against the city for violations of the Iowa Constitution. I certified to the Iowa Supreme Court the question of whether a defendant can raise a defense of qualified immunity to an individual's claim for damages for violation of article I, §§ 1 and 8 of the Iowa Constitution. The Iowa Supreme Court has now answered that question in the affirmative and adopted the available qualified immunity defense, in a thoughtful majority opinion over an equally thoughtful defense. The city seeks leave to amend its answer to assert the qualified immunity defense newly-minted by the Iowa Supreme Court. I must decide whether to allow the proposed amendment and whether to rule on all the questions raised in the parties' reanimated cross-motions for summary judgment and supplemental briefing on the Iowa constitutional claims, in light of the Iowa Supreme Court's answer to the certified question, or, once again, to certify some of those questions to the Iowa Supreme Court.

I. INTRODUCTION

A. Factual Background

The factual background to this case is set out in considerable detail in my prior ruling on cross-motions for summary judgment, see Baldwin v. Estherville, Iowa , 218 F.Supp.3d 987, 989-93 (N.D. Iowa 2016), then by the Iowa Supreme Court in Baldwin v. City of Estherville , 915 N.W.2d 259, 261-65 (Iowa 2018). For present purposes, suffice it to say that, on November 10, 2013, Officers Reineke and Hellickson, of the Estherville City Police, were shown a video by a resident in the Estherville area of a person the officers identified as plaintiff Gregory Baldwin riding a 4-wheeler ATV that proceeded along North 4th Street and turned into a ditch, using the north Joe Hoye Park entrance, after which it continued in the ditch until it reached West 14th Avenue North, where it returned to the roadway.

The officers then reviewed IOWA CODE CH. 321I, which, inter alia , permitted operation of ATVs only on streets designated by cities, see IOWA CODE § 321I.10(3), because the officers believed that Chapter 321I had been incorporated by reference into the City's Code of Ordinances when Chapter 321 was incorporated. They also consulted The Handbook of Iowa All-Terrain Vehicle and Off-Highway Motorcycle Regulations (Handbook ), which the defendants contended is a handbook frequently relied upon by police officers when determining whether off-road vehicles are operating in compliance with applicable laws. Finally, they discussed the matter with the City's police chief and a police captain. They concluded that the activity shown in the video amounted to a violation of City Ordinance E-321I.10. However, that Ordinance was not valid or in effect at the time, because it did not exist.

Officer Reineke prepared a citation and attempted to serve it on Baldwin at his home, but he was not there. Officer Reineke then refiled the citation with the notation "Request Warrant." On November 12, 2013, a state magistrate entered an order directing that a warrant issue. On November 13, 2013, Officer Hellickson served the warrant on Baldwin and took him to jail. Baldwin's wife posted bond, and Baldwin later pleaded not guilty to the charge.

In the days that followed, the City Attorney discovered that the City had not included IOWA CODE CH. 321I when it incorporated IOWA CODE CH. 321 into the City's Code of Ordinances. The City Attorney was granted leave to amend the charge to allege a violation of a different ordinance, City Ordinance 219-2(2). City Ordinance 219-2 generally permits ATVs to be operated on City streets except where prohibited, but subsection (2) prohibits operation of ATVs "in city parks, playgrounds, or upon any publicly-owned property." On Baldwin's Motion For Adjudication Of Law Points And To Dismiss, the Iowa District Court found that the cited act was not a violation of the City's Code of Ordinances as written and dismissed the case. The state court did so only after making two key constructions of pertinent City Ordinances: (1) that the plain meaning of "street" in City Ordinances included the "ditch," and (2) that "publicly-owned property" in City Ordinance 219-2(2), to the extent that it conflicted with another ordinance defining "street," did not include the "ditch" of a City street. See Baldwin , 218 F.Supp.3d at 1000-1001.

B. Procedural Background

Again, some of the procedural background is set out in more detail in my ruling on cross-motions for summary judgment. See Baldwin , 218 F.Supp.3d at 993-95. Suffice it to say that, on November 4, 2015, Baldwin filed his Petition, which became docket no. 3 in this action, in the Iowa District Court in and for Emmet County, against the City and Officers Reineke and Hellickson, in their individual and official capacities. He asserted four claims arising from his citation and arrest for the allegedly improper operation of his ATV on November 10, 2013. In Count I, against the City, Baldwin alleged a violation of article I, § 8 of the Iowa Constitution by subjecting him to an unreasonable seizure. In Count II, against defendants Reineke and Hellickson, in their individual capacities, he alleged a violation of the Fourth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983, by subjecting him to an unreasonable seizure. In Count III, against the City, he alleged a violation of article I, § 1 of the Iowa Constitution by violating his right to freedom, liberty, and happiness. Finally, in Count IV, against all defendants, he alleged a common-law claim of "false arrest." He sought-and still seeks-damages, interest, costs of the action, attorney's fees, and such other relief as may be deemed just and equitable.

The defendants removed this case to this court on November 20, 2015, based on federal question jurisdiction, with supplemental jurisdiction over the state-law claims, pursuant to 28 U.S.C. §§ 1331, 1367(a), 1441(a), and 1446. Thereafter, on November 23, 2015, the defendants filed a joint Answer, denying Baldwin's claims and asserting various affirmative defenses, including immunity from suit.

On November 18, 2016, on the parties' cross-motions for summary judgment, I granted the defendants' motion as to Baldwin's claims of a federal constitutional violation in Count II and state law false arrest in Count IV, denied Baldwin's motion for summary judgment on those claims, and stayed those parts of Baldwin's motion seeking summary judgment on his claims of Iowa constitutional violations in Counts I and III pending a decision by the Iowa Supreme Court on whether it would review the decision in Conklin v. State , No. 14-0764, 863 N.W.2d 301, 2015 WL 1332003 (Iowa Ct. App. March 25, 2015) (table op.), which held that there is no private cause of action for a violation of the Iowa Constitution. On February 17, 2017, at the request of the parties, I continued the trial in this matter indefinitely until the Iowa Supreme Court issued a ruling in either Conklin or State v. Godfrey , No. 15-0695, which also raised the question of whether the equal protection and due process provisions of the Iowa Constitution provide a direct action for damages.

On June 30, 2017, the Iowa Supreme Court issued its opinion in State v. Godfrey , 898 N.W.2d 844 (Iowa 2017), holding that the equal protection and due process clauses of the Iowa Constitution, article I, §§ 6 and 9, are self-executing, such that a tort claim for monetary damages exists for violations of each, when the legislature has not provided an adequate remedy. The Iowa Supreme Court left open the question of whether defendants could assert qualified immunity as a defense to such claims. On June 30, 2017, the Iowa Supreme Court issued Procedendo and an order denying further review in Conklin . In light of Godfrey , the defendants filed a Second Motion For Summary Judgment on August 11, 2017, in which they assumed that the ruling in Godfrey extends to other claims under the Iowa Constitution, and they sought summary judgment in their favor on what they contended was the remaining legal question of whether they are entitled to qualified immunity in connection with Baldwin's remaining Iowa constitutional claims.

On October 2, 2017, in response to the defendants' Second Motion For Summary Judgment, I entered an Order Certifying Question To The Iowa Supreme Court staying all proceedings in this court, as to all issues, in their entirety, pending the Iowa Supreme Court's answer to the following question:

Can a defendant raise a defense of qualified immunity to an individual's claim for damages for violation of article I, § 1 and § 8 of the Iowa Constitution ?

The parties did not thereafter request the certification of any additional questions to the Iowa Supreme Court. On June 29, 2018, the Iowa Supreme Court answered the certified question, as follows:

A defendant who pleads and proves as an affirmative defense that he or she exercised all due care to conform with the requirements of the law is entitled to qualified immunity on an individual's claim for damages for violation of article I, sections 1 and 8 of the Iowa Constitution.

Baldwin , 915 N.W.2d at 260-61.

On July 10, 2018, Baldwin filed a Status Report stating that the Iowa Supreme Court had answered the certified question. He requested that I lift the stay in this proceeding and order supplemental briefing on the unresolved portions of the motions for summary judgment concerning the application of Iowa's new qualified immunity defense to the facts of this case. On July 12, 2018, the City filed its Motion For Leave To Amend Answer in order to assert Iowa's new qualified immunity defense, which Baldwin resisted on July 13, 2018. On July 13, 2018, the City also filed a Status Report agreeing that supplemental briefing was appropriate on the remaining portions of the motions for summary judgment. The City also reported that it believed that the parties had completed discovery and that, subject to a ruling on the various pending motions, this case was now ready to be set for trial. The Iowa Supreme Court's opinion answering the certified question was filed in this court on July 23, 2018. On August 5, 2018, Baldwin filed a supplemental brief in support of his Motion For Summary Judgment, as to his Iowa constitutional claims and in resistance to the City's Second Motion For Summary Judgment. In that supplemental brief, Baldwin also seeks summary judgment that the defendants acted in reckless disregard for his rights under article I of the Iowa Constitution, as a gateway to a jury award of punitive damages, and a determination that he is entitled to attorney's fees. On August 6, 2018, the City filed a brief in support of its Motion For Leave To Amend Answer and in resistance to Baldwin's Motion For Summary Judgment on his Iowa constitutional claims, a determination of reckless disregard, and Baldwin's entitlement to attorney's fees.

On August 29, 2018, I entered an Order lifting the stay on proceedings in this case and indicating that a trial date would be set by separate order, after consultation with the parties. On August 30, 2018, I entered a Trial Management Order setting a jury trial for January 7, 2019.

I now turn to consideration of the various matters raised by the parties in light of the Iowa Supreme Court's answer to the certified question.

II. THE CITY'S MOTION TO AMEND ITS ANSWER

The City seeks leave to amend its Answer to add the new affirmative defense of "all due care" adopted by the Iowa Supreme Court in answer to this court's certified question. Although the defendants had asserted as one of several affirmative defenses in their original Answer that "Defendants are immune from suit," the City seeks leave to add the following affirmative defense in an Amended Answer: "Defendant's employees exercised all due care to conform with the requirements of the law and are therefore entitled to qualified immunity." Baldwin contends that leave to amend should be denied.

A. Arguments Of The Parties

The City acknowledges that good cause for an untimely amendment under Rule 16(b) of the Federal Rules of Civil Procedure requires a showing that, despite diligence, the movant could not reasonably have offered the amendment sooner. The City contends that it can meet this requirement, because the "all due care" standard for qualified immunity adopted by the Iowa Supreme Court could not reasonably have been foreseen. This is so, the City argues, because Baldwin argued for adoption of a strict liability standard, while it argued for adoption of the federal qualified immunity analysis, but the Iowa Supreme Court declined to do either and, instead, fashioned a new affirmative defense based on proof that the defendants exercised "all due care." The City argues that, while its proffered amendment is admittedly after the deadline for amendments, there is good cause for the timing of the proffered amendment under these circumstances.

In his resistance, Baldwin argues that the deadline for motions to amend pleadings under the court's original Scheduling Order expired more than ten months ago and, indeed, was marked "COMPLETED" in the court's subsequent Scheduling Order entered on August 2, 2017. He also points out that discovery is completed. He argues that allowing the City to amend its Answer to add an "all due care" qualified immunity defense, which asserts a position contrary to the City's previous admission of negligence, would cause undue prejudice to him within the meaning of Rule 16. More specifically, he asserts that he intends to use the City's original negligence defense against them, so it would unduly prejudice him to allow the City to pursue an inconsistent defense. Baldwin also argues that allowing the amendment would be prejudicial, because it would force him to go to trial without the opportunity to discover just what the City's officers contend was their exercise of "all due care." Next, he contends that the amendment should be rejected, because it is futile, where the proposed "all due care" qualified immunity defense is entirely inconsistent with the City's original negligence defense and legally insufficient. Finally, in his supplemental brief, Baldwin argues that the City cannot assert an immunity defense, because the Iowa Municipal Tort Claims Act eliminates any common-law immunity of the City, which Baldwin asserts includes Iowa's new "all due care" immunity. He also argues that there is no mention in cases from the common-law era of a qualified immunity defense for a municipality based on the good faith of municipal officers, so that the City never had such a defense at common law.

In the portion of its supplemental brief addressing its request for leave to amend its Answer, the City argues that seeking leave to amend without undue delay, based on a new development in the law, as it did, here, is precisely the kind of "circumstance" in which justice requires that leave to amend be granted. The City also points out that it is the sole remaining defendant and that it is properly allowed to plead and prove the due care of its officers as a defense. The City contends that an adjudication that the officers exercised due care bars a plaintiff's vicarious-liability claim against a municipality. Contrary to Baldwin's contentions, the City argues that IOWA CODE § 670.4(1)(c) specifically provides for municipal immunity for any claim based upon an act or omission of an officer or employee exercising due care in the execution of a statute, ordinance, or regulation, whether the statute, ordinance, or regulation is valid. Thus, the City argues that it is entitled to plead and prove the officers' due care in order to establish its immunity.

B. Analysis

1. Applicable standards

As the Eighth Circuit Court of Appeals recently explained,

"[A] motion for leave to amend filed outside the district court's Rule 16(b) scheduling order requires a showing of good cause." Williams v. TESCO Servs., Inc. , 719 F.3d 968, 977 (8th Cir. 2013) ; see Fed. R. Civ. P. 16(b)(4). "The primary measure of good cause is the movant's diligence." Harris v. FedEx Nat'l LTL, Inc. , 760 F.3d 780, 786 (8th Cir. 2014) (quotation omitted). "We generally will not consider prejudice [to the nonmovant] if the movant has not been diligent in meeting the scheduling order's deadlines." Hartis v. Chi. Title Ins. Co. , 694 F.3d 935, 948 (8th Cir. 2012) (quotation omitted). We review the district court's denial of the motion to amend for abuse of discretion, but we review de novo whether the proposed amendments would have been futile. United States ex rel. Joshi v. St. Luke's Hosp., Inc. , 441 F.3d 552, 555 (8th Cir.), cert. denied , 549 U.S. 881, 127 S.Ct. 189, 166 L.Ed.2d 142 (2006).

Kmak v. Am. Century Companies, Inc. , 873 F.3d 1030, 1034 (8th Cir. 2017) ; Kozlov v. Associated Wholesale Grocers, Inc. , 818 F.3d 380, 395 (8th Cir. 2016) ("Rule 15(a) does not apply when, as here, the 'district court has established a deadline for amended pleadings under FRCP 16(b),' " and, instead, the movant must show "good cause" pursuant to Rule 16(b)(4) (quoting In re Graphics Processing Units Antitrust Litig. , 540 F.Supp.2d 1085, 1090 (N.D. Cal. 2007) ).

As to diligence, the court concluded in Kmak that the plaintiffs had not been diligent in seeking leave to amend, because "[t]he new claims were legal variations on a theme the parties had been litigating for years." 873 F.3d at 1034. The court also agreed with the district court's reasons for finding unpersuasive the plaintiffs' excuse that only last-minute discovery first gave them a hint that the new claims existed. Id. at 1035. In Kozlov , the court also concluded that the movant had not acted diligently, because the movant had access to almost all the relevant evidence at least eighteen months before the motion to amend was filed. Kozlov , 818 F.3d at 395. Also, "[w]here there has been 'no change in the law, no newly discovered facts, or any other changed circumstance ... after the scheduling deadline for amending pleadings,' then [courts] may conclude that the moving party has failed to show good cause." Hartis v. Chicago Title Ins. Co. , 694 F.3d 935, 948 (8th Cir. 2012) (quoting Sherman v. Winco Fireworks, Inc. , 532 F.3d 709, 718 (8th Cir. 2008) ).

"Motions [to amend] that would prejudice the nonmoving party by 'requiring a re-opening of discovery with additional costs, a significant postponement of the trial, and a likely major alteration in trial tactics and strategy' are particularly disfavored." Kozlov , 818 F.3d at 395 (quoting Steir v. Girl Scouts of the U.S.A. , 383 F.3d 7, 12 (1st Cir. 2004) ). Thus, in Kozlov , the court affirmed the denial of leave to amend where the amendment "would have required more discovery and new experts because negligent hiring was never alleged before this request to amend." Id. Similarly, in Kmak , the court concluded that denial of leave to amend was appropriate, because the amendment would have resulted in undue delay as well as prejudice to the defendant by forcing it to re-litigate the dispute on new bases, requiring additional and costly discovery, and depriving it of the meaningful value of a prior summary judgment ruling. Kmak , 873 F.3d at 1035 (citing Sanders v. Venture Stores, Inc. , 56 F.3d 771, 774 (7th Cir. 1995) ).

Finally, "[d]enial of a motion for leave to amend on the basis of futility 'means the district court has reached the legal conclusion that the amended complaint could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.' " Zutz v. Nelson , 601 F.3d 842, 850 (8th Cir. 2010) (quoting Cornelia I. Crowell GST Trust v. Possis Med., Inc. , 519 F.3d 778, 782 (8th Cir. 2008) ). Thus, a proffered amendment may be futile, if the proposed amendment is deficient as a matter of law or contrary to a determination that the court has already made. See Mississippi River Revival, Inc. v. City of Minneapolis, Minn. , 319 F.3d 1013, 1018 (8th Cir. 2003).

2. Application of the standards

Here, contrary to Baldwin's assertions, I conclude that the City has met the "good cause" requirement for amending its Answer, even though the amendment is offered well after expiration of the deadline in the original Scheduling Order. See Kmak , 873 F.3d at 1034 ; FED. R. CIV. P. 16(b)(4). I find that the City has been diligent in seeking leave to amend to assert the new "all due care" affirmative defense. See id. (stating that diligence is the "primary measure" of good cause (internal quotation marks and citations omitted) ). Furthermore, I find unpersuasive Baldwin's assertions of prior failure to plead the defense, prejudice, and futility.

First, the City was diligent in that it acted promptly to amend its Answer to assert the newly-defined affirmative defense by filing its request to amend within two weeks of the Iowa Supreme Court handing down the decision adopting the new defense. Compare Kozlov , 818 F.3d at 395 (concluding the movant was not diligent where he waited at least eighteen months after the factual basis for his claim was apparent before seeking leave to amend). Second, the Iowa Supreme Court's answer to the certified question in this case created a qualified immunity affirmative defense based on "all due care" that neither party had advanced in this court or before the Iowa Supreme Court. Baldwin does not dispute the City's assertion that he argued for "strict liability" for violation of the Iowa Constitution, with no immunity defense, while the City argued for "qualified immunity" following federal law. It is plain that the Iowa Supreme Court considered and rejected both of these suggestions in its ruling and, instead, opted for an "all due care" qualified immunity defense that was not advanced by either party. Even to the extent that the proposed new defense is just a "legal variation[ ] on a theme the parties had been litigating for years," see Kmak , 873 F.3d at 1034, it is a "variation" in an unforeseen tonality, not just in a new key. Thus, this is a situation in which there was a significant "change in the law," resulting in "changed circumstances" that could not have been reasonably foreseen by the parties in this case. Compare Hartis , 694 F.3d at 948 (finding a lack of diligence "[w]here there ha[d] been no change in the law, no newly discovered facts, or any other changed circumstance ... after the scheduling deadline for amending pleadings" (internal quotation marks and citation omitted) ).

I am not persuaded by Baldwin's contention that the defense was not pleaded. I note that the defendants did not plead an affirmative defense based only on "qualified immunity," as adopted by the federal courts for federal constitutional claims, as Baldwin seems to contend. Rather, the defendants pleaded more generally that "[d]efendants are immune from suit," which might reasonably encompass the "all due care" qualified immunity affirmative defense subsequently adopted by the Iowa Supreme Court.

Nor am I persuaded by Baldwin's argument that he would be unduly prejudiced by the amendment. It is true that such things as delay of the disposition of the case, the costs of additional discovery, alteration of trial strategy, and loss of the benefit of a previously obtained summary judgment might constitute prejudice. See Kmak , 873 F.3d at 1035 ; Kozlov , 818 F.3d at 395. Here, however, Baldwin's arguments that more discovery or alteration of his trial strategy (such as whether or not he can use the defendants' admission of "negligence" at trial) will be required by the amendment are belied by his renewed assertion that he is entitled to summary judgment on his Iowa constitutional claims, even in light of the newly-adopted "all due care" qualified immunity defense, on the existing record. Also, neither party contended in its status reports after the Iowa Supreme Court answered the certified question that more discovery would be required before proceeding to summary judgment or trial. Some adjustment of trial strategies is necessarily required for both parties when new, controlling law changes the requirements for proof of a claim or defense, as is the case, here. Thus, the adjustment of strategies to new law is not the sort of prejudice that should preclude an amendment. Compare Kozlov , 818 F.3d at 395 (finding prejudice from alteration of tactics and the need for additional discovery based on a newly-pleaded, but long-recognized claim); Kmak , 873 F.3d at 1035 (same).

Also, I am not persuaded by Baldwin's assertion that the proposed amendment to assert an "all due care" qualified immunity defense is futile. While it is possible that the City might not win on that defense, for some of the reasons stated by Baldwin, it is not plain to me that the City's reliance on the new defense is deficient as a matter of law or contrary to a determination that the court has made or, for that matter, contrary to admissions that the City has made, that the officers were "negligent." Zutz , 601 F.3d at 850 ; Mississippi River Revival, Inc. , 319 F.3d at 1018 (an amendment may be futile if it is contrary to determinations the court has already made). Although the defendants asserted that the officers' mistaken belief about the adoption of IOWA CODE CH. 321I into the City's Code of Ordinances "was nothing more than negligence," I am not convinced that is an admission that the officers were negligent as much as it is an argument that Baldwin cannot possibly show anything more than negligence on any reasonable construction of the facts. Certainly, I never held that the officers' conduct was negligent in all relevant respects, even if I acknowledged that the defendants had argued that the record shows no more than negligence. Baldwin's argument that no reasonable juror could find that the officers exercised "all due care" applies a summary judgment standard, rather than the applicable Rule 12(b) standard for leave to amend. Zutz , 601 F.3d at 850. To put it another way, allowing the City to amend its Answer to assert an "all due care" qualified immunity defense over Baldwin's "futility" objection would not be inconsistent with or otherwise prevent me from granting summary judgment in favor of Baldwin on that defense on his Motion For Partial Summary Judgment, as supplemented

Baldwin's last argument is that the City is not entitled to assert a qualified immunity defense based on the allegation that its officers acted with "all due care." Baldwin is correct that IOWA CODE § 670.2 provides, in pertinent part, as follows:

Except as otherwise provided in this chapter, every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.

IOWA CODE § 670.2(1). Baldwin is also correct that, in 1976, the Iowa Supreme Court explained that the predecessor of this statutory provision, then codified at IOWA CODE § 613A.2, meant that "[a]ny common-law immunity in tort previously accorded governmental subdivisions was eliminated except for those torts specifically excluded by [then] § 613A.4, [now § 670.4 ]." Symmonds v. Chicago, M., St. P. & P.R. Co. , 242 N.W.2d 262, 264 (Iowa 1976) (citing Jahnke v. Incorporated City of Des Moines , 191 N.W.2d 780, 782 (Iowa 1971) ). Nevertheless, I do not find that Baldwin's argument presents an insuperable bar to the City's amendment to plead the defense. Id. (applying Rule 12(b) standards to determine futility).

There are at least three flaws to Baldwin's assertion that this statutory provision bars the "all due care" of officers as a defense to municipal liability, at least based on the present state of the law. First, the "all due care" qualified immunity defense is not a common-law immunity "previously accorded" municipalities, as of the time of the adoption of the predecessor of IOWA CODE § 670.2(1). See Symmonds , 242 N.W.2d at 264. Rather, as the parties are well aware, it is a qualified immunity defense just adopted by the Iowa Supreme Court and applicable specifically to tortious violations of the Iowa Constitution, which were also just recognized as the basis for claims for damages. In answering the certified question in this case, the Iowa Supreme Court recognized that Iowa courts have a role in crafting a remedy for a claim for damages for a violation of the Iowa Constitution as established in Godfrey . Baldwin , 915 N.W.2d at 276. Thus, any prior abrogation of common-law immunities is inapplicable to the Iowa Supreme Court's subsequent adoption of a qualified immunity defense to newly-recognized Iowa constitutional claims.

Second, as the City argues, IOWA CODE § 670.4(1)(c) provides, in pertinent part, as follows:

1. The liability imposed by section 670.2 shall have no application to any claim enumerated in this section....

c. Any claim based upon an act or omission of an officer or employee of the municipality, exercising due care , in the execution of a statute, ordinance, or regulation whether the statute, ordinance or regulation is valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the municipality or an officer or employee of the municipality, whether or not the discretion is abused.

IOWA CODE § 670.4(1)(c) (emphasis added). Thus, to the extent that the Iowa Municipal Tort Claims Act applies to the Iowa constitutional claims at issue, the immunity of the City for acts of its officers "exercising due care" is established by statute.

Third, contrary to Baldwin's assertions, in answering the certified question in this case, the Iowa Supreme Court did address whether a municipal defendant, as well as an individual defendant, may assert the new qualified immunity defense. Only the City was a defendant in this case, after I granted summary judgment on Baldwin's federal constitutional claim and false arrest claim, because only the City was named as a defendant on Baldwin's Iowa constitutional claims in the first place. Thus, at the time of certification of the question to the Iowa Supreme Court, the City was the only remaining defendant. The question I certified was not specifically limited to either municipal or individual defendants, because it was phrased in terms of whether "a defendant" can raise a defense of qualified immunity to an individual's claim for damages for the violations of the Iowa Constitution at issue, here. Thus, the Iowa Supreme Court was plainly aware that the only defendant in question was the City, but that court also did not formulate the qualified immunity defense in terms that limited its application only to individual officers or a municipality.

Although I believe the Iowa Supreme Court addressed the question of whether the City could assert qualified immunity, the dissenters to the decision answering the certified question stated,

[T]he issue of municipal liability for damages caused by the unconstitutional conduct of its employees was not presented by the parties in this case, is not addressed in the majority opinion, and is reserved for another day.

Baldwin , 915 N.W.2d at 283 (Appel, J., joined by Hecht, J., dissenting). The dissenters pointed out-and Baldwin now does the same-that, in Owen v. City of Independence , 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), the United States Supreme Court had observed that " 'in the hundreds of cases from [the common law] era awarding damages against municipal governments for wrongs committed by them, one searches in vain for much mention of a qualified immunity based on the good faith of municipal officers.' " Baldwin , 915 N.W.2d at 282 (Appel, J., joined by Hecht, J., dissenting) (quoting Owen , 445 U.S. at 641, 100 S.Ct. 1398 ). If, as the dissenters assert, the majority did not address whether a municipality can be liable for damages for unconstitutional conduct of its employees, then it necessarily did not address whether a municipality has qualified immunity for unconstitutional conduct for which its employees have qualified immunity.

Whether the City can assert qualified immunity based on its officers' conduct is a question that could have been expressly certified to the Iowa Supreme Court at the same time I certified the question of whether a defendant can assert qualified immunity to an Iowa constitutional claim, and we could have already obtained an authoritative answer to that question, as well. See, e.g. , Arizonans for Official English v. Arizona , 520 U.S. 43, 76, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ("Certification procedure ... allows a federal court faced with a novel state-law question to put the question directly to the State's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response."). Neither the parties nor I thought of doing so, however, probably because the City was the only remaining defendant at the time that I certified the question of the availability of a qualified immunity defense to the Iowa Supreme Court.

The dissenter's position notwithstanding, I conclude, subject to subsequent determination to the contrary by the Iowa Supreme Court, that the newly-adopted "all due care" qualified immunity defense is available to a municipality, such as the City.

3. Summary

Because I conclude that the newly-adopted "all due care" qualified immunity defense is available to a municipality, such as the City, under my reading of existing Iowa law, I grant the City's Motion For Leave To Amend Answer in order to assert Iowa's new "all due care" qualified immunity affirmative defense.

III. THE RENEWED MOTION FOR SUMMARY JUDGMENT

A. The Pending Motion

When I lifted the stay in this case, the unresolved portions of the parties' cross-motions for summary judgment were reanimated as far as they concerned the application of Iowa's new "all due care" qualified immunity defense to the facts of this case. In his supplemental brief, Baldwin also seeks summary judgment that the defendants acted in reckless disregard of his rights under article I of the Iowa Constitution, as a gateway to a jury award of punitive damages, and a determination that he is entitled to attorney's fees.

The defendants' argument on the merits of the Iowa Constitutional claims in response to Baldwin's original motion for summary judgment on those claims was that, at that time, no Iowa case had judicially implied a private right of action for a violation of the Iowa Constitution. That contention is no longer viable in light of State v. Godfrey , 898 N.W.2d 844 (Iowa 2017). Similarly, in support of the defendants' Second Motion For Summary Judgment, the defendants argued only that they were entitled to qualified immunity to the Iowa constitutional claims under the federal standard, which also is no longer viable in light of the Iowa Supreme Court's answer to the certified question. In its supplemental brief, the City does not renew a request for summary judgment on its qualified immunity defense, as that defense has been adopted by the Iowa Supreme Court. Rather, the City asserts simply that genuine issues of material fact on the new defense should defeat Baldwin's Motion For Partial Summary Judgment, as supplemented. Thus, defendants' Second Motion For Summary Judgment is denied as moot .

Consequently, all that remains to be resolved are the part of Baldwin's August 11, 2016, Motion For Partial Summary Judgment, as supplemented, concerning his Iowa constitutional claims and the parts of his supplemental brief, filed on August 5, 2018, raising the issues of reckless disregard and attorney's fees.

Before considering any of the issues raised in Baldwin's Motion For Partial Summary Judgment, as supplemented, I will summarize the standards for summary judgment.

B. Summary Judgment Standards

Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp. , 409 F.3d 984, 990 (8th Cir. 2005) ("Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."); see generally Celotex Corp. v. Catrett , 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, "[t]he movant 'bears the initial responsibility of informing the district court of the basis for its motion,' and must identify 'those portions of [the record] ... which it believes demonstrate the absence of a genuine issue of material fact.' " Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quoting Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). In response, "[t]he nonmovant 'must do more than simply show that there is some metaphysical doubt as to the material facts,' and must come forward with 'specific facts showing that there is a genuine issue for trial.' " Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

When the parties have met their burdens, the district judge's task is as follows:

"On a motion for summary judgment, 'facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.' " Ricci v. DeStefano , 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) quoting Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotations omitted). "Credibility determinations, the weigh-ing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)..... " 'Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.' " Ricci , 129 S.Ct. at 2677, quoting Matsushita , 475 U.S. at 587, 106 S.Ct. 1348.

Torgerson , 643 F.3d at 1042-43.

"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Ryan v. Capital Contractors, Inc. , 679 F.3d 772, 776 (8th Cir. 2012). However, summary judgment is particularly appropriate when only questions of law are involved, rather than factual issues that may or may not be subject to genuine dispute. See, e.g. , Cremona v. R.S. Bacon Veneer Co. , 433 F.3d 617, 620 (8th Cir. 2006).

C. The Iowa Constitutional Claims

In his Motion For Partial Summary Judgment, as supplemented, Baldwin first seeks summary judgment on his claims for violations of the Iowa Constitution. More specifically, he seeks summary judgment that his rights under article I, §§ 1 and 8 of the Iowa Constitution were violated and that the City is not entitled to the newly-adopted "all due care" affirmative defense. I believe that the claim or claims that Baldwin asserts under the Iowa Constitution require some further clarification.

1. Nature of the claim or claims

In Count I of his Petition, Baldwin alleges that the City, through its officers, acting within the scope of their employment, violated his rights under article I, § 8 of the Iowa Constitution, when the officers took him into custody without probable cause to believe that a criminal offense had been committed. In Count III, he alleges that the City, through its officers, acting within the scope of their employment, violated his rights under article I, § 1 of the Iowa Constitution, when the officers took him into custody without a criminal offense having been committed. Although Baldwin has asserted two claims in two counts of his Petition, I believe that he is actually asserting only a single claim of a violation of the Iowa Constitution.

I reach this conclusion based on Baldwin's arguments in his original summary judgment motion and in his supplemental brief. Baldwin asserts in both that, by analogy to equal protection law under the Iowa Constitution, which the Iowa Supreme Court held "arises out of the confluence of article I, section 1 and article I, section 6," McQuistion v. City of Clinton , 872 N.W.2d 817, 830 n.6 (Iowa 2015), search and seizure law under the Iowa Constitution arises out of the "confluence" of article I, § 1 and article I, § 8, where article I, § 1 protects individuals' rights, while article I, § 8, prevents the government from engaging in unreasonable searches and seizures. Thus, Baldwin appears to assert only one violation of the Iowa Constitution, based on this "confluence" of the two sections. Indeed, in his now reanimated Motion For Partial Summary Judgment, he argues that "the Defendants, acting under color of state law, arrested and jailed [him] without probable cause in violation of his article I, section 8, [and] article I, section 1... rights." Similarly, in his supplemental brief, based on a single discussion of whether there was probable cause, he argues, "Concerning whether [his] article I rights were violated, there is no genuine issue of material fact, and [he] is entitled to judgment as a matter of law."

Thus, there is only one Iowa constitutional claim at issue, based on a lack of probable cause for Baldwin's arrest, in violation of Baldwin's right to be free of an unreasonable search and seizure, even though that single claim is based on two provisions of the Iowa Constitution and was pleaded in two counts.

2. The Iowa constitutional violation

a. Arguments of the parties

Baldwin argues that an unreasonable search and seizure claim under article I, §§ 1 and 8 of the Iowa Constitution is not coextensive with such a claim under the Fourth Amendment to the United States Constitution. He points out that I concluded that the officers made a mistake of law, which supported probable cause under the Fourth Amendment, but he contends that such a mistake of law is not sufficient to satisfy the Iowa Constitution, because, under the Iowa Constitution, neither good faith nor a mistake of law, whether reasonable or not, supports probable cause. It appears that the only argument that the City raises concerning whether or not there was a violation of the Iowa Constitution is its contention that, at the very least, reasonable reliance by the officers on a facially valid warrant means that there is a jury question with respect to whether the challenged conduct of the officers breached a duty not to arrest Baldwin without probable cause.

b. Discussion

i. Requirements of the Iowa Constitution

The Iowa Supreme Court has explained, "Both the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution prohibit unreasonable searches and seizures by the government." State v. Tyler , 830 N.W.2d 288, 291 (Iowa 2013) ; State v. Cline , 617 N.W.2d 277, 281 (Iowa 2000), overruled on other grounds by State v. Turner , 630 N.W.2d 601, 606 (Iowa 2001). Almost a quarter of a century ago, the Iowa Supreme Court stated,

We have consistently declined to provide greater protection under article I, section 8 of the Iowa Constitution than the United States Supreme Court has found in the Fourth Amendment. See [ State v.] Scott , 409 N.W.2d [465,] 467 [ (Iowa 1987) ] ; Kain v. State , 378 N.W.2d 900, 902 (Iowa 1985) ; State v. Groff , 323 N.W.2d 204, 207 (Iowa 1982) ; State v. Roth , 305 N.W.2d 501, 507 (Iowa 1981) ; [ State v.] Olsen , 293 N.W.2d [216,] 220 [ (Iowa 1980) ].

State v. Beckett , 532 N.W.2d 751, 755 (Iowa 1995). Indeed, at least as late as 2004, in State v. Tague , 676 N.W.2d 197 (Iowa 2004), which the Iowa Supreme Court stated it had "decided under the Iowa Constitution," the court "applied the federal standards of probable cause and reasonable suspicion under the Fourth Amendment to article I, section 8 of the Iowa Constitution." State v. Scheffert , 910 N.W.2d 577, 582 (Iowa 2018) (citing Tague , 676 N.W.2d at 201, 204, 206 ).

It is clearly no longer the case that the Iowa Constitution provides no greater protection than the United States Constitution from unreasonable searches and seizures, however. By 2013, the Iowa Supreme Court had taken the quite different position that it had "consistently stated [that] '[w]e jealously protect this court's authority to follow an independent approach [to evaluating claims made] under our state constitution." Tyler , 830 N.W.2d at 291 (quoting State v. Pals , 805 N.W.2d 767, 771 (Iowa 2011) ). More specifically, in Pals , the Iowa Supreme Court explained that this "consistent" independence ran from at least 2000:

Pals brings [search and seizure] claims under both the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution. While these provisions use nearly identical language and were generally designed with the same scope, import, and purpose, we jealously protect this court's authority to follow an independent approach under our state constitution. State v. Ochoa , 792 N.W.2d 260, 267 (Iowa 2010). In Ochoa , we explained:

[W]hile United States Supreme Court cases are entitled to respectful consideration, we will engage in independent analysis of the content of our state search and seizure provisions.... The degree to which we follow United States Supreme Court precedent, or any other precedent, depends solely upon its ability to persuade us with the reasoning of the decision.

Id. Our approach to independently construing provisions of the Iowa Constitution that are nearly identical to the federal counterpart is well supported in our case law and the law of other jurisdictions. See, e.g. , Ochoa , 792 N.W.2d at 267 ; State v. Cline , 617 N.W.2d 277, 285 (Iowa 2000), overruled on other grounds by [ State v.] Turner , 630 N.W.2d [601,] 606 [ (Iowa 2001) ]. Even where a party has not advanced a different standard for interpreting a state constitutional provision, we may apply the standard more stringently than federal case law. State v. Bruegger , 773 N.W.2d 862, 883 (Iowa 2009). When, as here, a defendant raises both federal and state constitutional claims, the court has discretion to consider either claim first or consider the claims simultaneously. Ochoa , 792 N.W.2d at 267.

Pals , 805 N.W.2d at 771-72. As the Iowa Supreme Court explained in 2000, in a case cited in Pals ,

[T]here is no principle of law that requires this court to interpret the Iowa Constitution in line with the United States Constitution, as long as our interpretation does not violate any provision of the federal constitution. In other words, although this court cannot interpret the Iowa Constitution to provide less protection than that provided by the United States Constitution, the court is free to interpret our constitution as providing greater protection for our citizens' constitutional rights.

Cline , 617 N.W.2d at 284-85 (citations omitted).

Furthermore, as the Iowa Supreme Court explained in Tyler ,

Where a party raises both state and federal constitutional claims but does not argue that a standard independent of the federal approach should be employed under the state constitution, we ordinarily apply the substantive federal standards but reserve the right to apply the standard in a fashion different from federal precedent . State v. Bruegger , 773 N.W.2d 862, 883 (Iowa 2009).

Tyler , 830 N.W.2d at 291-92 (emphasis added). In Tyler , because the defendant had not proposed a standard for interpreting the search and seizure provisions of the Iowa Constitution differently from the federal counterpart, the court applied federal standards. Id. at 292. That is not the case, here, where Baldwin has consistently argued that he is entitled to recover on his claims under the Iowa Constitution, even if he is not entitled to recover on his claims under the Fourth Amendment to the United States Constitution, because the standards are different.

One critical distinction between Iowa constitutional standards and federal constitutional standards for search and seizure cases, as Baldwin argues, is that the Iowa Supreme Court has held "that the good faith exception to the exclusionary rule does not apply under Iowa law." Cline , 617 N.W.2d at 278. The court explained,

One of the fundamental guarantees of the Iowa Constitution is the protection of its citizens against unreasonable searches and seizures. We believe that the only effective way to ensure that this right is more than mere words on paper is to exclude illegally obtained evidence. The reasonableness of a police officer's belief that the illegal search is lawful does not lessen the constitutional violation. For the reasons we have already discussed, the United States Supreme Court's rationale justifying the adoption of a good faith exception is neither sound nor persuasive. Therefore, we hold that the good faith exception is incompatible with the Iowa Constitution. This court will simply not "condone and approve a clear and known violation of a fundamental constitutional right in order to sustain a conviction that we think correct." State v. McClelland , 164 N.W.2d 189, 200 (Iowa 1969) (Becker, J., dissenting), overruled by State v. Bester , 167 N.W.2d 705, 707-08 (Iowa 1969). To do so would elevate the goals of law enforcement above our citizens' constitutional rights, a result not supported by any principle of constitutional law.

Cline , 617 N.W.2d at 292-93 (emphasis added).

Another critical distinction between the Iowa constitutional standards and the federal constitutional standards for search and seizure cases, as Baldwin argues, is that the Iowa Supreme Court "ha[s] elected not to extend this permissiveness [of justifying a traffic stop on the basis of a mistake of fact] to mistakes of law, holding a mistake of law is not sufficient to justify a stop." Tyler , 830 N.W.2d at 294 ; accord Scheffert , 910 N.W.2d at 585 ("We held in Tyler that a mistake of law is not sufficient to meet the State's burden to justify a stop."). Thus, " '[e]vidence derived from a stop based on a law enforcement officer's mistake of law must be suppressed.' " Id. (quoting State v. Louwrens , 792 N.W.2d 649, 650 (Iowa 2010) ). In short, "the mistake-of-law doctrine is broader under the United States Constitution than it is under the Iowa Constitution," because Iowa does not recognize even a reasonable mistake of law as supporting probable cause or reasonable suspicion. Scheffert , 910 N.W.2d at 585 n.2. The Iowa Supreme Court has maintained this distinction even after the United States Supreme Court decided in Heien v. North Carolina , --- U.S. ----, 135 S.Ct. 530, 539-40, 190 L.Ed.2d 475 (2014), that a reasonable mistake of law could support reasonable suspicion for a traffic stop. Scheffert , 910 N.W.2d at 585 n.2; State v. Coleman , 890 N.W.2d 284, 298 n.2 (Iowa 2017) ("Of course, the ruling in Tyler under the Iowa Constitution is unaffected by Heien . Further, the approach in Heien would be very difficult to square with our rejection of the good-faith exception to the exclusionary rule under article I, section 8 of the Iowa Constitution in Cline , 617 N.W.2d at 293.").

ii. Application of the Iowa standards

In my prior summary judgment ruling, when I addressed Baldwin's federal constitutional claim based on arrest without probable cause, I concluded that the officers did not have probable cause based on a mistaken belief that City Ordinance E321I.10 existed, because "this kind of mistake of law is entirely different from the mistake in Heien . " Baldwin , 218 F.Supp.3d at 999. I explained that, in Heien , the mistake "arose from an officer's uncertainty about the meaning of statutory language that had not previously been construed by the courts," but "the mistake at issue, here, is the result of 'a sloppy study of the laws [the officers were] duty-bound to enforce.' " Id. (quoting Heien , 135 S.Ct. at 539-40 ). That mistake of law is just as plainly inadequate to support probable cause for purposes of an Iowa constitutional claim, where the Iowa Supreme Court does not recognize even a reasonable mistake of law under Heien as sufficient to avoid a violation of the Iowa Constitution. Scheffert , 910 N.W.2d at 585 n.2; Coleman , 890 N.W.2d at 298 n.2.

I also find unavailing the City's argument that, at the very least, reasonable reliance by the officers on a facially valid warrant to arrest Baldwin for a violation of the non-existent ordinance means that there is a jury question with respect to whether the challenged conduct of the officers breached the probable cause requirement. In Cline , the Iowa Supreme Court expressly rejected United States v. Leon , 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which held that, if a police officer relied in objectively good faith upon a search warrant in making a search, the fruits of the officer's search should not be suppressed. The Iowa Supreme Court pointed out that, in Leon , the premise for the good-faith exception was that the exclusionary rule should only be adopted in situations in which it accomplished its deterrent effect, which was to deter police misconduct, rather than errors of judges and magistrates, and there would be no deterrent effect when the offending officers acted in objectively reasonable reliance on a warrant. Cline , 617 N.W.2d at 284. The court reiterated its rejection of Leon , because it believed that "[c]ommon sense tells us that the exclusionary rule prompts more care and attention at all stages of the warrant-issuing process, including by the judicial officers issuing the warrant." Id. at 290. Thus, the City cannot assert that probable cause existed based on a good faith belief that the magistrate issued a valid warrant for arrest, when the basis for the warrant was the violation of a non-existent ordinance.

Under both Iowa constitutional and federal constitutional standards, "the State is not limited to the reasons stated by the investigating officer in determining whether either probable cause or reasonable suspicion existed for the stop [or arrest]." Tyler , 830 N.W.2d at 295 (citing State v. Heminover , 619 N.W.2d 353, 357 (2000) ); Cline , 617 N.W.2d at 281. As to the federal constitutional claims, I concluded that there was probable cause, even though there was no basis in an ordinance that didn't exist, because there was factual support for probable cause for a violation of an alternative ordinance, City Ordinance 219-2(2), even though the officers had not relied on it. Id. at 1000-01. As to the Iowa District Court's subsequent conclusion that City Ordinance 219-2(2) also was not violated, I explained,

The Iowa District Court's constructions would establish no more than a mistake of law as to the applicability of the prohibition in Ordinance 219-2(2) to Baldwin's driving his ATV in the ditch. That mistake was of the same kind as the mistake of law at issue in Heien , involving an arguable reading of uncertain language in the law. See Heien , 135 S.Ct. at 540. The Iowa District Court's after-the-fact constructions do not establish that a prudent person could not have believed, at the time of Baldwin's alleged offense, that he had committed a violation of Ordinance 219-2(2). Williams [v. City of Alexander, Ark.] , 772 F.3d [1307,] 1310 [ (8th Cir. 2014) ].

Baldwin , 218 F.Supp.3d at 1001.

The same determination under the Iowa Constitution is untenable after the Iowa Supreme Court's decisions in Cline and Tyler , however. In Cline , in its examination of good faith exceptions to probable cause under the federal constitution, the Iowa Supreme Court explained,

The [United States Supreme] Court applied the good faith exception under different factual circumstances in [ Illinois v.] Krull , [480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) ]. In that case, the police obtained evidence in a warrantless search authorized by a state statute that was subsequently declared unconstitutional. Krull , 480 U.S. at 343-44, 107 S.Ct. at 1163-64, 94 L.Ed.2d at 370-71 (statute authorized warrantless administrative search of records maintained by persons licensed to sell motor vehicles). The United States Supreme Court held that suppression of the evidence was not required because the Leon good faith exception to the exclusionary rule applied. Id. at 349, 107 S.Ct. at 1167, 94 L.Ed.2d at 375. The Court stated:

Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.

Id. at 349-50, 107 S.Ct. at 1167, 94 L.Ed.2d at 375.

Cline , 617 N.W.2d at 284. Later in its opinion, the court in Cline added the following further explanation of Krull :

[I]n Krull , the Court held that the exclusionary rule would not deter illegal police conduct when the officer, in conducting the search, has relied on a state statute that is not clearly unconstitutional. 480 U.S. at 349-50, 107 S.Ct. at 1167, 94 L.Ed.2d at 375. In view of the allegedly nonexistent deterrent effect of the rule under these various circumstances, the Court stated that application of the rule could not be justified in view of the "substantial costs of exclusion." Leon , 468 U.S. at 922, 104 S.Ct. at 3420, 82 L.Ed.2d at 698 ; accord Krull , 480 U.S. at 352-53, 107 S.Ct. at 1168-69, 94 L.Ed.2d at 377.

Cline , 617 N.W.2d at 288-89.

The Iowa Supreme Court rejected Krull's rationale, again, because it concluded that "[c]ommon sense tells us that the exclusionary rule prompts more care and attention at all stages of the warrant-is