In the Iowa Supreme Court
No. 22–1625
Submitted February 18, 2025—Filed April 4, 2025
Krystal Wagner, individually and as administrator of the Estate of Shane Jensen,
Appellant,
vs.
State of Iowa and William L. Spece,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Humboldt County, Kurt J. Stoebe,
judge.
The plaintiff in a wrongful death suit appeals the grant of summary
judgment to the defendants. Decision of Court of Appeals and District Court
Judgment Affirmed.
Per curiam.
David A. O’Brien (argued) of Dave O’Brien Law, Cedar Rapids, and Nathan
Borland and Brooke Timmer of Timmer, Judkins & Borland, P.L.L.C., West Des
Moines, for appellant.
Brenna Bird, Attorney General; Patrick C. Valencia (argued), Deputy
Solicitor General; Jeffrey C. Peterzalek, Assistant Attorney General; and Tessa
M. Register (until withdrawal), Assistant Solicitor General, for appellees. 2
This is a wrongful death suit against the State of Iowa and one of its
employees. The district court granted summary judgment for the defendants, the
court of appeals affirmed, and we granted further review. Following our review,
we decline to reverse the lower courts. The viability of the plaintiff’s suit depends
primarily on the viability of her Godfrey claims. But in recent cases we have
repeatedly concluded that Godfrey claims are not viable. We reach the same
conclusion here. And we do not find other grounds for reversal. So we affirm.
I. Factual and Procedural Background.
A. The Incident. On the morning of November 11, 2017, an all-points
bulletin was issued to law enforcement concerning a nineteen-year-old named
Shane Jensen. Jensen suffered from mental health problems. He was suspected
of stealing a truck and he was believed to possess a 9 mm handgun. The last
section of the bulletin stated: “Shane Jensen should be considered armed and
dangerous and has informed law enforcement last night that he is suicidal and
has been talking of suicide by cop.” (Capitalization altered.)
Later that morning, Jensen’s mother, Krystal Wagner, called local law
enforcement. During the call, Wagner stated:
I do believe he still has the gun and his plan is to die today, he says. . . . But he does want a shootout and I -- I told [a deputy] that I don’t know, 3:30 or 4 o’clock this morning, he does want a shootout and he intends to fire so that you guys have to fire back . . . .
A team of law enforcement officers searched for Jensen. The team
consisted of local officers and an Iowa Department of Natural Resources officer
named William Spece.
The team located Jensen in the backyard of a residential home. A stand-
off ensued. Jensen refused orders to drop his handgun. Instead, Jensen told the 3
officers, “You’re going to have to take me out and put me down.” Then he swung
the gun around and fired it in the air.
Seconds later, Spece believed Jensen was pointing the gun toward the
officers and that Jensen was going to shoot at them. Spece fired a single round
at Jensen. Jensen died of his injuries.
B. The Litigation. As will be explained, two lawsuits arose from Jensen’s
death: one in federal court and one in state court. Only the state court case is
before us in this appeal. But the federal case was filed first and is relevant to our
resolution of this appeal. So we begin with it.
1. The federal case begins. In February 2019, Wagner filed suit against
Spece and the State in federal district court. Wagner v. Iowa, No. 19–CV–3007,
2019 WL 13551548, at *1–2 (N.D. Iowa July 29, 2019). Wagner’s federal suit
involved three kinds of claims: (1) claims under the United States Constitution
through 42 U.S.C. § 1983, (2) Iowa common law claims for negligent wrongful
death and loss of consortium, and (3) Iowa constitutional claims known as
“Godfrey claims.” Id. The term “Godfrey claim” refers to our 2017 Godfrey v. State
decision, in which four justices recognized certain tort claims under the Iowa
Constitution. 898 N.W.2d 844, 871–72 (Iowa 2017) (plurality opinion), overruled
by Burnett v. Smith, 990 N.W.2d 289 (Iowa 2023); id. at 880 (Cady, C.J.,
concurring in part and dissenting in part).
The defendants moved to dismiss on several grounds. Wagner, 2019 WL
13551548, at *3. The court granted the motion in part by dismissing Wagner’s
claims against the State as well as those against Spece in his official capacity,
all on Eleventh Amendment grounds. Id. at *4–9. But the court denied the
defendants’ motion as to Wagner’s section 1983 claims against Spece in his
individual capacity. Id. at *5. 4
As for Wagner’s Godfrey claims, the court held the defendants’ motion in
abeyance. Id. at *9–14. The court believed that the defendants’ motion raised
novel state law issues concerning the applicability of the Iowa Tort Claims Act to
Godfrey claims. Id. The court believed those novel state law issues were “best left
to the Iowa Supreme Court.” Id. at *13. So the court presented the issues to our
court in the form of certified questions. Id. at *13–14; see also Iowa Code
§ 684A.1 (2019); Iowa R. App. P. 6.301–04.
2. This state case begins. In early October 2019—while the federal court’s
certified questions were pending before our court—Wagner filed this separate
suit in the Iowa district court. As in her federal case, Wagner named both Spece
and the State as defendants. And Wagner’s state court petition brought the same
kinds of claims as her federal complaint: section 1983 claims under the United
States Constitution, Godfrey claims under the Iowa Constitution, and Iowa
common law claims for negligent wrongful death and loss of consortium.
In late October, the parties filed a joint motion to stay the state case
because the parties were “involved in litigation over the exact same claim[s] in”
federal court. The parties believed that further litigation should be postponed
until the certified questions were answered. The Iowa district court agreed and
stayed the case pending our resolution of those questions.
3. Answers to the certified questions. In December 2020, our court
answered the certified questions. Wagner v. State, 952 N.W.2d 843, 847 (Iowa
2020). 5
Here are the four certified questions and the answers we provided:
Question. Answer.
“[1]. Does the Iowa Tort Claims Act, “Yes, as to the procedural Iowa Code Chapter 669, apply to requirements of that Act.” plaintiffs’ [state] constitutional tort causes of action?” “[2]. Is the available remedy under the “No.” Iowa Tort Claims Act for excessive force by a law enforcement officer inadequate based on the unavailability of punitive damages? And if not, what considerations should courts address in determining whether legislative remedies for excessive force are adequate?” “[3]. Are plaintiffs’ claims under the “Yes.” Iowa Constitution subject to the administrative exhaustion requirement in Iowa Code section 669.5(1)?” “[4]. Are plaintiffs required to bring “Yes.” their Iowa constitutional claims in the appropriate Iowa district court under Iowa Code section 669.4?”
Id. (alterations in original). We also provided a lengthy opinion explaining our
rationale for these answers. Id. at 851–65.
4. The federal case continues—and ends. Based on our answers to the
certified questions, the federal court concluded that Wagner’s Godfrey claims
could only proceed in state court. Wagner v. Iowa, No. 19–CV–3007, 2021 WL
521309, at *2 (N.D. Iowa Feb. 11, 2021). So the federal court dismissed those
claims for lack of jurisdiction. Id. That dismissal order was issued in February
2021. Id. at *3. After that, the only claims remaining in federal court were
Wagner’s section 1983 claims against Spece in his individual capacity. Id.
Those remaining claims did not proceed to judgment. In November 2021,
Spece moved for summary judgment as to those claims. Wagner filed no 6
resistance. Instead, the parties stipulated to dismissal of those claims without
prejudice. That ended the federal case.
5. The remaining state court action. Now we return to the state court action,
which is before us in this appeal. And we turn the clock back to February 2021,
when the case was still before the Iowa district court. Soon after the certified
questions were answered, the court lifted its stay at Wagner’s request. Wagner
also filed an amended petition. It included almost all of the same claims that
Wagner had pleaded in her first petition. The only exception is that the amended
petition did not include federal claims.
To recap, then, as of February 2021, Wagner’s claims in this case were as
follows:
Count I Godfrey claim for excessive force.
Count II Godfrey claim for violation of substantive due process.
Count III Godfrey claim only against the State for wrongful hire/failure to train.
Count IV Negligent wrongful death under Iowa common law.
Count V Loss of consortium.
6. The summary judgment proceedings. In July 2022, Wagner moved for
summary judgment as to liability. She claimed Spece’s shooting of Jensen was
objectively unreasonable as a matter of law.
The defendants responded with their own cross-motion for summary
judgment, which sought dismissal of all of Wagner’s claims. To summarize, the
defendants argued that (1) any federal claims under section 1983 cannot
proceed against the State or Spece in his official capacity, (2) Spece’s use of force
was objectively reasonable, (3) Spece enjoys qualified immunity, (4) Wagner’s
common law claim is barred by sovereign immunity, and (5) Wagner’s loss of 7
consortium claim and her Godfrey wrongful hire/failure to train claim both fail
because they are derivative of Wagner’s other claims.
In her resistance to the defendants’ motion, Wagner emphasized that she
“does not assert any federal constitutional claims” in this state court action.
Wagner also conceded that her Godfrey wrongful hire/failure to train claim
(count III) and her common law wrongful-death claim (count IV) should be
dismissed. Wagner explained that these “claims . . . are duplicative of the [other]
constitution[al] claims and Wagner does not resist the Defendants[’] summary
judgement motion on those counts.” But Wagner maintained that her Godfrey
claims for excessive force (count I) and substantive due process (count II) were
viable and should proceed.1
The district court granted the defendants’ motion and denied Wagner’s. In
the court’s view, the undisputed evidence showed that Spece’s use of deadly force
was objectively reasonable. Therefore, the defendants were entitled to summary
judgment on the excessive force claim (count I) and the substantive due process
claim (count II). As for counts III and IV, the court granted summary judgment
to the defendants based on Wagner’s concession that she did not resist summary
judgment. Finally, the court found that Wagner’s loss of consortium claim (count
V) fails because it is derivative of her other claims, none of which survived
summary judgment.
Wagner then filed this appeal.
7. The appellate process. In her appellant’s brief, Wagner argued that fact
issues should have precluded summary judgment on her Godfrey claims for
excessive force and substantive due process. Meanwhile, the defendants argued
that summary judgment was correctly granted.
1Wagner’s resistance did not address her loss of consortium claim (count V). 8
Briefing was finished by February 2023. But then, on May 5, we issued
our decision in Burnett v. Smith, 990 N.W.2d 289. Burnett overruled Godfrey. Id.
at 307.
About a month later, our court transferred this case to the court of
appeals. On June 9, the court of appeals set the matter for nonoral submission.
Then, on June 14, Wagner filed a motion to reopen briefing so that the
parties could address the “impact of Burnett on th[e] case.” The defendants
resisted, but the court of appeals permitted limited supplemental briefing.
Wagner’s supplemental briefs raised two main points. On the one hand,
Wagner argued that Burnett should not be applied retroactively to her case and,
therefore, her Godfrey claims should be treated as viable. On the other hand,
Wagner argued that if she can’t pursue Godfrey claims, then her Godfrey
excessive force claim should be viewed as a common law assault claim and
evaluated on its merits. The defendants disagreed.
8. The court of appeals decision. The court of appeals affirmed the district
court’s dismissal. The court concluded that Wagner’s constitutional tort claims
could not proceed in light of Burnett. And the court concluded that Wagner’s
common law claims had been waived.
Wagner applied for further review. We granted her application.
II. Merits.
When we grant further review, we have discretion as to which issues we
will address. We choose to focus on issues raised in Wagner’s application, which
generally fall into three categories: (1) Can she pursue Godfrey claims? (2) Can
she pursue common law claims? And (3) assuming we can reach the merits of
any claim, was the district court right to grant summary judgment? We focus
mainly on the first two questions, which we conclude are dispositive. 9
A. Godfrey claims. We start with Wagner’s core argument that the court
of appeals should have allowed her to pursue Godfrey claims even though we
overruled Godfrey through Burnett. We reject this argument. Since Burnett, we
have regularly held that Godfrey claims cannot proceed. We do the same here.
We have considered all of Wagner’s counterarguments. For instance, we’ve
considered Wagner’s argument that Thorington v. Scott County required the court
of appeals to remand so the district court could apply Burnett in the first
instance. Thorington, No. 22–1194, 2024 WL 874182, at *1 (Iowa Mar. 1, 2024)
(per curiam). But we believe Thorington should be distinguished.
Thorington involved a wrongful death suit against a county and a deputy
sheriff. Id. The plaintiff brought both common law claims and Godfrey claims.
Id. The defendants moved for summary judgment. Id. They argued that Iowa’s
qualified immunity statute, Iowa Code section 670.4A (2022), required dismissal.
Id. The district court granted the motion as to some claims but denied the motion
as to a Godfrey claim and a related loss of consortium claim. The defendants
then pursued an interlocutory appeal as of right under Iowa Code
section 670.4A(4), which makes any district court decision denying qualified
immunity “immediately appealable.” Id. (quoting Iowa Code § 670.4A(4)).
We found no error in the district court’s resolution of the defendants’
qualified immunity arguments. Id. So the natural outcome of the appeal would
have been to remand for further proceedings on the plaintiff’s remaining claims.
But Burnett was decided while the appeal was pending. This presented the
question of whether we should apply Burnett in the first instance or, instead,
allow the district court to apply it on remand. We asked the parties to provide
supplemental briefing on that issue. Id. The plaintiff’s brief argued that we
should remand the Burnett issue, in part because the case was only before us 10
on interlocutory appeal, not on an appeal from a final decision. Id. We agreed
and remanded for the district court to apply Burnett in the first instance. Id.
This appeal is different from Thorington. Thorington involved an
interlocutory appeal in a case that would “continue in district court” following
remand. Norris v. Paulson, No. 23–0217, 2024 WL 4469203, at *2 (Iowa Oct. 11,
2024) (per curiam) (discussing Thorington). Here, however, we are faced with an
appeal from a final order. And we have repeatedly applied Burnett in pending
appeals from final orders. See Venckus v. City of Iowa City, 990 N.W.2d 800, 812
(Iowa 2023); Carter v. State, No. 21–0909, 2023 WL 3397451, at *1 (Iowa May 12,
2023) (per curiam).
Moreover, we note that the supplemental briefing in this case was different
from that in Thorington. In Thorington, we asked the parties for supplemental
briefing, and then the plaintiff’s supplemental brief asked us to remand so that
the district court could apply Burnett. Thorington, 2024 WL 874182, at *1. Here,
however, Wagner requested supplemental briefing while the case was before the
court of appeals. And in her supplemental brief, Wagner asked the court of
appeals to consider Burnett and decide how it should be applied. Given this
posture, we cannot fault the court of appeals for considering Burnett and
deciding how it should be applied.
We have also considered Wagner’s various arguments that she had a
vested right under due process or otherwise to bring Godfrey claims even though
we have now concluded that Godfrey claims are invalid. We disagree. To begin,
we think Wagner puts too much weight on Thorp v. Casey’s General Stores, Inc.,
where we held that a plaintiff could have a due process right in a statutory cause
of action. 446 N.W.2d 457, 463 (Iowa 1989). Wagner does not cite, and we have
not found, any authorities suggesting that parties have vested rights in causes 11
of action created by judicial opinions like Godfrey. Federal law is clear that a
plaintiff “has no property, no vested interest, in any rule of the common law.”
Valdivia v. Porsch, 718 F. Supp. 3d 919, 927–28 (S.D. Iowa 2024) (quoting Duke
Power Co. v. Carolina Env’t Study Grp., Inc., 438 U.S. 59, 88 n.32 (1978)), appeal
docketed, No. 24–1668 (8th Cir. Mar. 28, 2024). And we see no grounds for a
different rule under Iowa law, especially in the present context. Burnett
concluded that Godfrey claims are not consistent with our constitution. 990
N.W.2d at 290. Wagner can have no valid interest in claims that are inconsistent
with our constitution. See Iowa Const. art. XII, § 1 (“This Constitution shall be
the supreme law of the State, and any law inconsistent therewith, shall be void.”).
But Wagner suggests that a different rule should apply here because of
our answers to the certified questions from the federal court. Because those
answers assured her that her Godfrey claims were valid, Wagner argues, it is
impermissible for us to say those claims are invalid now.
We disagree. For one thing, because none of the certified questions
challenged the validity of Godfrey, our answers did not resolve such a challenge.
Rather, because all of the certified questions assumed Godfrey’s ongoing validity,
we operated under the same assumption.
Moreover, even if we read our answers as affirming Godfrey’s validity at
that time, they could not have locked our constitutional law in amber. They could
not have prevented us from later determining that Godfrey claims are
inconsistent with our constitution—as we ultimately did in Burnett. And they
could not have prevented the defendants from challenging the validity of Godfrey
claims in this state court case—as they ultimately have.
Because Godfrey claims are no longer valid under Iowa law, we affirm the
district court’s dismissal of the Godfrey claims. 12
B. Common Law Claims. Wagner also claims that she should now be
allowed to pursue common law claims. We disagree. In the district court, the
defendants sought summary judgment on those claims under sovereign
immunity as modified by Iowa Code section 669.14(4) (2019). Wagner chose not
to resist summary judgment. Instead, she agreed that summary judgment
should be entered as to her common law claims. We find no error in the district
court’s grant of summary judgment on that basis.
We recognize Wagner’s argument that she would not have agreed to
summary judgment as to her common law claims if she had known that Godfrey
would be overruled. As explained, though, Wagner had no enforceable reliance
interest in Godfrey. Indeed, as a general matter, we think the bar would not have
found it surprising that the Godfrey decision—which was controversial even
among the justices on the Godfrey court—would be subject to challenges or that
those challenges could be successful. See Lennette v. State, 975 N.W.2d 380, 402
(Iowa 2022) (McDonald, J., concurring) (“As explained in the dissenting opinion
in Godfrey, this court’s creation of a constitutional tort was contrary to the text
of the constitution and was not supported by precedent, custom, or tradition.
See 898 N.W.2d at 881–99 [(Mansfield, J., dissenting)]. Godfrey was
demonstrably erroneous, and this court should overrule it.”)
In any event, following our review of the record and the law, we conclude
that even if Wagner had not waived her common law claims, those claims still
could not have prevailed on the merits. For all of these reasons, we affirm the
district court’s dismissal of Wagner’s common law claims. 13
III. Disposition.
The district court was correct to grant summary judgment in the
defendants’ favor. The court of appeals was correct to affirm the judgment of the
district court.
Decision of Court of Appeals and District Court Judgment Affirmed.
This opinion shall not be published.