                 IN THE SUPREME COURT OF IOWA
                                  No. 12–1515

                          Filed October 11, 2013


JOSHUA N. THOMAS,

      Appellant,

vs.

OFFICERS TIM GAVIN, CHUCK TYGART, JESS BERNHARD, and
ADAM OLSON; DEPUTY SHERIFF LUKE HRUBY; RESERVE DEPUTY
SHERIFF JOSHUA GERSTEN; the CITY OF NORTH LIBERTY,
IOWA; and JOHNSON COUNTY, IOWA,

      Appellees.



      Appeal from the Iowa District Court for Johnson County, Paul D.

Miller, Judge.



      Plaintiff appeals from the district court’s grant of summary

judgment to two municipalities and their law enforcement officers based

on an immunity in the Iowa Tort Claims Act.          REVERSED AND

REMANDED.



      Mary K. Pilcher Hayek of Kennedy, Cruise, Frey & Gelner, L.L.P.,

Iowa City, and Martin A. Diaz and Elizabeth J. Craig of Martin Diaz Law

Firm, Iowa City, for appellant.



      Terry J. Abernathy and Stephanie L. Hinz of Pickens, Barnes &

Abernathy, Cedar Rapids, for appellees Gavin, Tygart, Bernhard, Olson,

and the City of North Liberty.
                                  2

     Andrew B. Chappell and Susan D. Nehring, Assistant County

Attorneys, for appellees Hruby, Gersten, and Johnson County.
                                    3

MANSFIELD, Justice.

      While attending North Liberty Fun Days in 2007, the plaintiff

alleges he was wrongfully assaulted and arrested by officers of the

North Liberty Police Department and deputies of the Johnson County

Sheriff’s Office. He filed suit against the City of North Liberty, Johnson

County, and the officers and deputies involved.        The district court

dismissed his case, finding the defendants were entitled to immunity

based on Iowa Code chapter 669. The district court reasoned that the

defendants were enforcing the criminal laws of Iowa and therefore acting
on behalf of the state in an official capacity, and that the plaintiff’s

claims for assault, battery, false arrest, and malicious prosecution were

outside the scope of permissible claims under the Iowa Tort Claims Act

(ITCA). See Iowa Code §§ 669.2(3), (4), 669.14(4) (2007). The plaintiff

appealed.

      Upon our review, we now reach a different conclusion from the

district court as to the defendants’ immunity from suit. We hold that

any immunity conferred by Iowa Code chapter 669, the ITCA, does not

protect these county and municipal officials from being sued under the

Iowa Municipal Tort Claims Act (IMTCA), Iowa Code chapter 670. The

IMTCA, in turn, does not bar claims for assault, battery, false arrest, and

malicious prosecution. Accordingly, we reverse the judgment below and

remand for further proceedings.

      I. Facts and Procedural Background.

      Plaintiff Joshua Thomas was attending a concert at North Liberty

Fun Days on June 9, 2007. Late that evening, a fight broke out, and

Thomas alleges that he intervened to try to break it up.       Several law
enforcement officers grabbed Thomas.      They used Tasers on Thomas,

handcuffed him, and arrested him.        Thomas alleges that the Taser
                                           4

deployments were unnecessary and caused him ongoing pain and

muscle and ligament damage.

       Although Thomas was criminally charged with disorderly conduct

and interference with official acts, the former charge was dropped before

trial, and he was acquitted of the latter charge.

       On May 15, 2009, Thomas brought suit against North Liberty

police officers Tim Gavin, Chuck Tygart, Jess Bernhard, and Adam Olson

and Johnson County sheriff’s deputies Luke Hruby and Joshua Gersten,

as well as the City of North Liberty and Johnson County.                  He alleged
common law claims of assault, battery, false arrest, and malicious

prosecution.

       The defendants moved for summary judgment.1 They argued that

although the individual defendants do not receive their paychecks from

the State of Iowa, they are nonetheless “employees of the state” for

purposes of the ITCA. See Iowa Code § 669.2(4). They further argued

that section 669.14(4) of the Act, which excludes any claim arising out of

assault,      battery,   false   arrest,   and malicious      prosecution,     barred

Thomas’s action.

       Thomas resisted the motions on both factual and legal grounds.

Factually, he disputed that the defendants were acting to enforce the

laws of Iowa at the time the alleged torts were committed. Legally, he

maintained the defendants had failed to account for Iowa Code chapter

670, the IMTCA, which applies to political subdivisions and their

employees and does not have an exclusion for assault, battery, false

arrest, or malicious prosecution claims.

       1The   city defendants and the county defendants have been separately
represented throughout this litigation. Thus, separate motions were filed on behalf of
North Liberty and its police officers and on behalf of Johnson County and its deputies.
                                     5

      The district court originally denied the defendants’ motions for

factual reasons. It explained, “[T]he Court concludes there is a genuine

issue of material fact as to whether any or all Defendants were acting to

detain Plaintiff and enforce the law at the time Plaintiff sustained his

alleged injuries.”

      However, on the eve of trial, the district court reconsidered its prior

ruling and granted the defendants’ motions. Addressing the facts first,

the court explained:

             The Court felt, and all parties agreed, that the
      applicability of Iowa Code Chapter 669 to this case was a
      legal question for the Court to determine prior to trial, and
      that no additional factual record (other than filings already
      in the court file) was necessary for this determination.

             ....

            The following factual background is either stipulated
      to by Plaintiff or undisputed:

             1. Plaintiff’s claims stem from his involvement in an
             alleged intervention in and/or participation in a fight
             in North Liberty, Iowa.

             2. Johnson County Deputy Hruby, Reserve Deputy
             Sheriff Gersten, City of North Liberty Police Officers
             Gavin, Tygart, Bernhard and Olson were all on duty as
             peace officers that evening.

             3. All of the Defendants are sworn peace officers who
             have a duty to enforce the criminal laws of the State of
             Iowa.

             4. All of the Defendants were generally involved (to a
             greater or lesser degree) in attempting to detain
             Thomas and ultimately arrest him for violations of
             Iowa Code Section 719.1, Interference with Official
             Acts, and Iowa Code Section 723.4, Disorderly
             Conduct.

             5. The Defendants’ actions while on duty that evening
             involved enforcing the laws of the State of Iowa, and
             the charges filed against Thomas were for violating
             state law and were brought and prosecuted in the
                                     6
            name of the State of Iowa. See Johnson County Court
            file SMSM069153—State of Iowa vs. Joshua Thomas.

(footnote omitted).

      The district court went on to adopt the central legal premise of the

defendants’ motions.     It found that the individual defendants were

“employees of the state” for purposes of the ITCA, that Thomas’s claims

were “claims” within the scope of the Act, and that “Iowa Code Section

669.14(4) preserves the State’s sovereign immunity with respect to any

claim arising out of assault, battery, false arrest, and malicious

prosecution.”    Thus, it concluded both the city and the county

defendants were immune from suit. The court added:

             I also note that to hold otherwise would present the
      incongruous situation of an Iowa State Highway Patrol
      Officer and a County Deputy Sheriff (and/or a City Police
      Officer) jointly undertaking to arrest a criminal suspect in
      the enforcement of the State of Iowa’s criminal laws but
      which would then allow the arrestee to bring suit for false
      arrest against the County Deputy Sheriff but bar a similar
      claim against the Iowa State Highway Patrol Officer even
      though the physical acts of the officers involved were the
      same in enforcing the [S]tate of Iowa’s criminal code and
      effectuating the arrest.

      Thomas appeals the district court’s grant of summary judgment.

      II. Standard of Review.
      We review a district court’s ruling on summary judgment for

correction of errors of law.     Office of Citizens’ Aide/Ombudsman v.

Edwards, 825 N.W.2d 8, 14 (Iowa 2012).             Summary judgment is

appropriate if “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3).
                                    7

      III. Legal Analysis.

      A. Background on the Relevant Statutes. This case requires us

to consider the interaction between chapter 669—the ITCA—and chapter

670—the IMTCA—of the Iowa Code. The ITCA was enacted in 1965. See

1965 Iowa Acts ch. 79. The IMTCA became law in 1967. See 1967 Iowa

Acts ch. 405.

      Both statutes are viewed as abolishing traditional common law

immunities. See Don R. Bennett, Handling Tort Claims and Suits Against

the State of Iowa: Part I, 17 Drake L. Rev. 189, 189 (1968) (“Prior to
passage of the Iowa Tort Claims Act in 1965, the maxim that ‘the King

can do no wrong’ prevailed in Iowa.”); Terrence A. Hopkins, Municipal Tort

Liability in Iowa, 31 Drake L. Rev. 855, 855 (1982) (noting that the

IMTCA “abolished the doctrine of governmental immunity in Iowa and

created a cause of action against municipalities which was unknown at

common law”). It should be noted, however, that historically municipal

employees could be sued in their individual capacities for torts they had

committed and were not protected by sovereign or governmental

immunity.   See Vermeer v. Sneller, 190 N.W.2d 389, 392 (Iowa 1971);

Anderson v. Calamus Cmty. Sch. Dist., 174 N.W.2d 643, 644 (Iowa 1970).

      The ITCA defines “claim” as any claim against the state of Iowa or

an employee of the state for money only “caused by the negligent or

wrongful act or omission of any employee of the state while acting within

the scope of the employee’s office or employment.” Iowa Code § 669.2(3).

Section 669.2(4) defines “employee of the state” to include “officers,

agents, or employees of the state . . ., including . . . persons acting on

behalf of the state . . . in any official capacity, temporarily or
permanently in the service of the state of Iowa.” Several sections of the
                                       8

ITCA provide mechanisms for resolving and paying “claims” as defined in

the Act. See Iowa Code §§ 669.3–669.11.

      Section 669.14 contains a list of exemptions from the ITCA.           It

states that “[t]he provisions of this chapter shall not apply with respect to

any claim against the state” in fourteen listed categories.        Iowa Code

§ 669.14.    The fourth category is “[a]ny claim arising out of assault,

battery, false imprisonment, false arrest, malicious prosecution, abuse of

process, libel, slander, misrepresentation, deceit, or interference with

contract rights.” Id. § 669.14(4).
      The year after the legislature enacted the ITCA, this court upheld

its constitutionality in Graham v. Worthington. See 259 Iowa 845, 146

N.W.2d 626 (1966).            Graham specifically rejected the plaintiff’s

contention that the ITCA covered political subdivisions of the state and

their officers, agents, and employees:

            We are satisfied political subdivisions such as cities,
      school districts and counties are neither agencies of the state
      nor corporations as those terms are employed and defined in
      the Act, and are not included within its clear intent and
      purpose.

            Surely the officers, agents and employees of political
      subdivisions are not officers, agents and employees of the
      state while acting within the scope of their office or
      employment.

Id. at 854, 146 N.W.2d at 633 (emphasis omitted).

      The general assembly passed the IMTCA the following year. In its

current form, the Act states, “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. . . .”   Iowa Code § 670.2.        “Municipality” includes any city or
county.     Id. § 670.1(2).    The Act also requires governing bodies of

municipalities to defend, hold harmless, and indemnify municipal
                                          9

officers and employees from any claims “arising out of an alleged act or

omission occurring within the scope of their employment or duties,”

except for punitive damage awards. Id. § 670.8(1).

       The Act further provides that “[t]he remedy . . . provided by section

670.2 shall hereafter be exclusive of any other civil action or proceeding

by reason of the same subject matter against the officer, employee or

agent whose act or omission gave rise to the claim. . . .” Id. § 670.4.

Additionally, the Act provides that “[t]he liability imposed by section

670.2 shall have no application to” an enumerated list of exceptions. Id.
Section 670.12 makes clear that municipal officers and employees are

not personally liable for these excepted claims, except for punitive

damage claims. However, there is no counterpart in section 670.4 to the

ITCA’s exception for claims based on assault, battery, false arrest, or

malicious prosecution. Id. § 670.4(1)–(15). Still, there is an exception in

the IMTCA for any claim against a municipality “where the action based

upon such claim has been barred or abated by operation of statute.” Id.

§ 670.4(4).

       Originally, the exclusivity clause in the IMTCA applied only when

the officer or employee was enforcing a local ordinance or regulation.

Thus, as first enacted, the Act provided:

              The remedy against the municipality provided by
       section two (2) of this Act for injury or loss of property or
       personal injury or death resulting from any act or omission
       of an officer or employee in the execution of a statute or
       ordinance, or officially adopted resolution, rule or regulation
       of a governing body2 while acting in the scope of his office or
       employment shall hereafter be exclusive of any other civil
       action or proceeding by reason of the same subject matter


       2A  “governing body” was—and still is—defined to include the governing body of a
city or county, but not the state. 1967 Iowa Acts ch. 405 § 1(2); Iowa Code § 670.1(1).
                                     10
      against the officer or employee whose act or omission gave
      rise to the claim. . . .

See 1967 Iowa Acts ch. 405 § 4(4) (footnote added). However, after this

court made clear that the IMTCA did not affect an injured party’s

preexisting common law right to sue a local official in his or her

individual capacity without going through the Act, see Vermeer, 190

N.W.2d at 392; Anderson, 174 N.W.2d at 644, the general assembly

expanded   this   exclusivity   provision    in   1974    by   eliminating   the

requirement that the claim be based upon local law. See 1974 Iowa Acts

ch. 1263, § 4. The provision now reads:

            The remedy against the municipality provided by
      section 670.2 shall hereafter be exclusive of any other civil
      action or proceeding by reason of the same subject matter
      against the officer, employee or agent whose act or omission
      gave rise to the claim. . . .

Iowa Code § 670.4.

      B. The Parties’ Arguments on Appeal.               Thomas’s position on

appeal is that chapter 670 authorizes his claim and has no exception for

the common law torts that he pled.          The defendants maintain, on the

other hand, that chapter 669 and chapter 670 are not mutually

exclusive. That is, a local law enforcement officer executing the laws of
Iowa can be both a municipal employee and a state employee, because

when enforcing the state’s criminal laws he or she is acting on behalf of

the state in an official capacity. See id. § 669.2(4). And, their argument

continues, local law enforcement when acting to enforce state criminal

law is entitled to the ITCA exemptions.        These exemptions include the

section 669.14(4) exemption for claims based on assault, battery, false

arrest, and malicious prosecution.
      C. Analysis of the Statutory Language. We begin by considering

the wording of the relevant statutes as applied to the present case. “Our
                                       11

goal, when interpreting a statute, is to give effect to the intent of the

legislature.” Jacobson Transp. Co. v. Harris, 778 N.W.2d 192, 197 (Iowa

2010). “To determine the intent of the legislature, we look first to the

words of the statute itself as well as the context of the language at issue.”

Id.

      The defendants do not dispute they are municipalities and

employees of municipalities and that the defendant employees were

acting within the scope of their employment or duties. Thus, upon a first

reading of section 670.2, it would appear the city and the county should
be liable for any torts committed by their respective employees subject

only to any exemptions in chapter 670.         Section 670.2 is an express

imposition of liability.   See Iowa Code § 670.2 (“Except as otherwise

provided in this chapter, every municipality is subject to liability. . . .”);

see also Jahnke v. Inc. City of Des Moines, 191 N.W.2d 780, 783 (Iowa

1971) (“[T]he effect of this language was to remove the defense of

governmental immunity from the commission of all torts except as

limited by [current section 670.4]. . . .”).

      The only potentially applicable exceptions to liability within

chapter 670 are found in section 670.4. Among other things, this section

exempts “[a]ny claim against a municipality as to which the municipality

is immune from liability by the provisions of any other statute or where

the action based upon such claim has been barred or abated by

operation of statute or rule of civil procedure.” Iowa Code § 670.4(4). In

theory, one might argue that section 670.4(4) incorporates the exceptions

to liability in section 669.14.

      Given the statutory language in section 669.14, however, there is a
problem with this argument. Section 669.14(4) states that “this chapter

shall not apply” to the common law claims alleged by Thomas. See id.
                                    12

§ 669.14(4). Yet nothing in section 669.14(4) indicates that chapter 670,

a separate chapter, is unavailable for such claims.      See id.   Section

669.14 is not worded as an all-encompassing barrier to liability, only as

a bar to liability under chapter 669.

      Furthermore, contrary to the defendants’ overall position in this

case, chapter 670 states that it is mutually exclusive of other remedies,

whether the local official is enforcing local law or not. See id. § 670.4.

Ever since the 1974 amendment, section 670.4 has provided,

      The remedy against the municipality provided by section
      670.2 shall hereafter be exclusive of any other civil action or
      proceeding by reason of the same subject matter against the
      officer, employee or agent whose act or omission gave rise to
      the claim . . . .

(The legislature removed the limitation to local law in 1974.) See Iowa

Code § 670.4; 1974 Iowa Acts ch. 1263, § 4. If the chapter 669 and 670

remedies are exclusive of each other, it would logically follow that each

chapter’s exceptions to those remedies also should be exclusive.

      It is true that notwithstanding the exclusivity provision, we did

hold in Nelson v. Steiner that an injured party could sue both the

municipality and the municipal employee for a particular tort committed

by the employee. 262 N.W.2d 579, 581–82 (Iowa 1978). As we noted,
since the Act expressly requires local governments to defend and

indemnify these employees, see Iowa Code § 670.8, it would be illogical

to conclude that another provision of the Act forbid them from being

sued. Nelson, 262 N.W.2d at 582. Still, we did not suggest an injured

party could proceed against a municipal employee outside the framework

of chapter 670. See id.

      In addition, section 670.12 states that local officers and employees
are not personally liable for “claims which are exempted under section
                                     13

670.4, except claims for punitive damages, and actions permitted under

section 85.20 [workers’ compensation].”       Iowa Code § 670.12.       This

provision essentially dates from 1982. See 1982 Iowa Acts ch. 1018, § 1.

At that time, the general assembly added an exemption for punitive

damage claims to the IMTCA but also preserved certain punitive damage

claims against municipal employees. Id. ch. 1018, §§ 1, 5.

       Reading section 670.12, it seems reasonable to conclude that the

available exemptions from tort liability for local officials are identical to

the section 670.4 exemptions for municipalities, except as otherwise
stated.   If the legislature intended local officials to have the benefit of

other exemptions, such as those in chapter 669, it is striking that the

1982 legislation did not mention them. This is known as the principle of

“expressio unius est exclusio alterius.”        See Rolfe State Bank v.

Gunderson, 794 N.W.2d 561, 568 (Iowa 2011) (applying this principle).

       One further point: The IMTCA exempts from liability claims when

the municipal employee or officer exercised due care “in the execution of

a statute.”   Iowa Code § 670.4(3).       The ITCA similarly exempts the

exercise of due care “in the execution of a statute.” Id. § 669.14(1). But

if municipal officials were already shielded by the ITCA’s exemptions

when implementing state law, then section 670.4(3)’s corresponding

immunity for due care in implementing state law would be unnecessary.

Normally we do not interpret statutes so they contain surplusage. See

Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 520 (Iowa 2012).

       In sum, we are unaware of any statutory language that actually

makes section 669.14(4) applicable to claims under chapter 670, even

when a city police officer or a county sheriff’s deputy is enforcing state
law.   Also, from the way sections 670.4 and 670.12 are worded, it

appears that chapter 670’s remedies and exemptions are basically
                                         14

exclusive as to municipalities and their employees, regardless again of

the law being enforced.

       D. Review of Precedent. We now turn to caselaw. As we have

already pointed out, as long ago as 1966, we held in Graham that the

ITCA did not apply to employees of cities and counties.               Graham, 259

Iowa at 854, 146 N.W.2d at 633. The defendants characterize that as

dictum, but they are incorrect.          One of the constitutional challenges

raised in Graham was based on article III, section 29 of the Iowa

Constitution.     Id. at 851–52, 146 N.W.2d at 631–32.3                The plaintiff
asserted that the ITCA was unconstitutional because it subjected the

state to liability for torts committed by “all political subdivisions” of the

state although the title of the Act only referred to claims against the

state. Id. at 851, 146 N.W.2d at 631. We concluded otherwise, finding

that cities and counties and their employees were not covered.                 Id. at

853–54, 146 N.W.2d at 632–33.            This determination was a necessary

part of our decision to reject the plaintiff’s constitutional claim. See id.

at 853–55, 146 N.W.2d at 632–33.

       We then repeated our Graham statements shortly after the IMTCA

was enacted. See Strong v. Town of Lansing, 179 N.W.2d 365, 366–67

(Iowa 1970) (quoting Graham with approval).

       Additionally, we have said on more than one occasion that chapter

670 is the exclusive remedy for persons who have tort claims against

municipalities and their employees. See Rucker v. Humboldt Cmty. Sch.

Dist., 737 N.W.2d 292, 293 (Iowa 2007) (“Iowa Code chapter 670 is the

exclusive remedy for torts against municipalities and their employees.”);

       3ArticleIII, section 29 provides: “Every act shall embrace but one subject, and
matters properly connected therewith; which subject shall be expressed in the title.”
Iowa Const. art. III, § 29.
                                    15

Willson v. City of Des Moines, 386 N.W.2d 76, 81 (Iowa 1986) (stating that

the IMTCA “provides the exclusive remedy for any civil action against a

municipality or one of its officers”). See also Dan Dugan Transp. Co. v.

Worth Cnty., 243 N.W.2d 655, 657 (Iowa 1976) (stating that “the

legislature intended to treat all substantive and procedural aspects of the

subject matter” when it enacted the IMTCA).

      We have also been guided by interpretations of the FTCA, which

was the model for the ITCA, when the wording of the two Acts is identical

or similar.   See, e.g., Hyde v. Buckalew, 393 N.W.2d 800, 802 (Iowa
1986) (“We have frequently turned to federal law in construing [the ITCA]

because our statute is modeled after the Federal Tort Claims Act.”);

Saxton v. State, 206 N.W.2d 85, 86 (Iowa 1973) (“Our statute is modeled

on the Federal Tort Claims Act and we are guided by interpretations

given identical statutory language by the federal courts.”). In this area

the FTCA has similar wording to the ITCA and defines “employee of the

government” to include “officers or employees of any federal agency, . . .

and persons acting on behalf of a federal agency in an official capacity,

temporarily or permanently in the service of the United States, whether

with or without compensation.” 28 U.S.C. § 2671 (2006). Additionally,

the FTCA, like the ITCA, excludes contractors from the definition of

covered employee.    See id. (excluding “any contractor with the United

States”); Iowa Code § 669.2(4) (excluding “a contractor doing business

with the state”).

      In Logue v. United States, the United States Supreme Court held

that the FTCA’s definition of employee did not include county jailers who

were holding a federal prisoner under contract with the Federal Bureau
of Prisons. See 412 U.S. 521, 526, 93 S. Ct. 2215, 2219, 37 L. Ed. 2d

121, 127 (1973). The Court focused on common law principles of agency
                                    16

and the federal authorities’ lack of authority to control the physical

activities of the county employees. See id. at 526–30, 93 S. Ct. at 2219–

21, L. Ed. 2d at 127–29. The Court rejected the notion that the county

employees should be considered “employees of the government” simply

because they were discharging duties imposed by federal law or

“performing tasks that would otherwise be performed by salaried

employees of the Government.” See id. at 528–29, 531–32, 93 S. Ct. at

2220–22, 37 L. Ed. 2d at 130–31.         By that rationale, a municipal

employee who is not under the actual control of the state or a state
agency should not be considered an “employee of the state” for purposes

of the ITCA.

      The defendants concede no Iowa appellate court has ever found

that a municipal employee can be considered an employee of the state

who would be immunized from tort liability by the ITCA.         As noted,

Graham would indicate otherwise. 259 Iowa at 854, 146 N.W.2d at 633.

The defendants, however, rely on the United States Court of Appeals for

the Eighth Circuit’s recent decision in McGhee v. Pottawattamie County.

547 F.3d 922 (8th Cir. 2008). In that case, two individuals brought a

civil rights suit for wrongful imprisonment after their murder convictions

were reversed for a number of improprieties.     Id. at 925.   The named

defendants included the former Pottawattamie County Attorney and one

of his former assistants.   Id.   The defendants argued, and the Eighth

Circuit agreed, that the employees of the county attorney’s office were

immune from suit based on section 669.14(4) of the ITCA to the extent

they were enforcing state law. Id. at 930–31.

      Upon our review, we respectfully disagree with the Eighth Circuit’s
ruling. The Eighth Circuit’s opinion focuses exclusively on the ITCA and

does not address the IMTCA or our prior holding in Graham. See id. at
                                     17

929–31.     While the ITCA’s definition of “employee of the state” could

perhaps be read in isolation to include municipal employees when they

are enforcing state law as part of their official duties, that definition does

not stand on its own. Rather, it coexists with a body of precedent, such

as Graham, as well as the IMTCA, a comprehensive law governing the

liability of municipalities and their officers and employees.

        E. Policy Considerations.       The defendants also assert that if

section 669.14(4) does not bar certain claims against local law

enforcement officers, then absurd results could occur. For example, as
noted by the district court, when state troopers and county sheriff’s

deputies are working side by side in a joint law enforcement operation,

the former would be exempt from liability under section 669.14(4) while

the latter could potentially be sued.

        We are mindful of this concern, but caution that the defendants’

view of the law also could lead to some unwieldy outcomes. For example,

what if a local law enforcement officer is responding to an ordinance

violation and investigating a possible violation of state criminal law at the

same time? And who pays the bill or provides the defense when a local

official enforcing state law is sued—the state or the local entity?       See

Iowa Code §§ 669.21(1), 670.8(1). Iowa law contains no mechanism for

resolving these disputes, which suggests the legislature didn’t anticipate

them.

        In fact, the North Liberty Code in effect at the time of Thomas’s

arrest prohibited disorderly conduct and interference with city officers.

See North Liberty, Iowa, Code §§ 9.02.020(G), 9.02.070(M) (1986).

Although Thomas was charged after the fact under state law, see Iowa
Code §§ 719.1, 723.4, the defendants were actually enforcing municipal

law as well. How does one separate the two activities?
                                    18

      Difficult practical questions would also arise for attorneys who

wanted to bring claims over improper conduct by county and local

employees. Instead of being able to rely on the employee’s status, the

attorney would likely have to file parallel claims with the state appeal

board under chapter 669 and in court under chapter 670.           See Iowa

Code §§ 669.3(2), 669.5(1).     This multiplication of proceedings would

complicate things for all concerned.     Notably, the defendants did not

argue here that Thomas had failed to exhaust his administrative remedy

because he did not present his claim to the state appeal board, a
prerequisite to bringing an action for injuries caused by the negligent or

wrongful acts of state employees acting within the scope of their

employment. See Swanger v. State, 445 N.W.2d 344, 347 (Iowa 1989).

This appears inconsistent with the defendants’ position that they are

state employees covered by the ITCA.

      The defendants’ principle would not be limited to law enforcement

officers but could affect numerous other municipal employees who in

some way carry out state laws, such as animal control workers, school

teachers, street maintenance workers, and parks and recreation workers.

The Iowa Code is replete with examples of state laws that tell

municipalities—and their employees—what they have to do.          See, e.g.,

Iowa Code ch. 280 (“uniform school requirements”); ch. 309 (establishing

requirements   for   counties   regarding   secondary   roads);   §   314.24

(requiring cities and counties, to the extent practicable, to protect the

natural and historic heritage of the state in the design, construction,

repair, or maintenance of roads, streets, or highways); § 317.9 (vesting

the duty to control noxious weeds in county boards of supervisors);
§ 351.36 (requiring local health and law enforcement officials to enforce

statutes pertaining to vaccination and impoundment of dogs); ch. 384
                                          19

(imposing requirements with respect to city finance); ch. 403 (setting

forth requirements for urban renewal projects); ch. 403A (setting forth

requirements for municipal housing projects).
       We are not addressing the situation where a local law enforcement
official has been deputized to a state agency and is under the direction of
that agency. See Iowa Code § 669.2(4) (defining “employee of the state”
to include “agents” of a state agency); see also Soults Farms, Inc. v.
Schafer, 797 N.W.2d 92, 100 (Iowa 2011) (noting that an agency
relationship arises when the principal and agent mutually manifest
assent to the relationship and the agent acts on the principal’s behalf
and is subject to the principal’s control). Our decision simply holds that
the mere act of enforcing state law is not enough to bring municipal
officials and employees within the scope of the ITCA and its immunities.4
       IV. Conclusion.
       For the reasons set forth, we hold that Thomas’s claims against the
defendants are not barred by section 669.14(4). We reverse the district
court’s grant of summary judgment and remand for further proceedings.
       REVERSED AND REMANDED.




       4We    also recognize that the ITCA’s coverage includes certain volunteers. See
Iowa Code § 669.2(4) (defining “employee of the state” to include “persons acting on
behalf of the state or any state agency in any official capacity, temporarily or
permanently in the service of the state of Iowa, whether with or without compensation”);
Hook v. Lippolt, 755 N.W.2d 514, 520 (Iowa 2008) (holding that a volunteer providing
services to the Department of Human Services is an employee of the state covered by
the ITCA); Iowa Att’y Gen. Op. No. 76-7-24 (July 27, 1976) (“[O]ne who provides services
on behalf of the State, per the request of the State, without compensation may still fall
within the definition of ‘Employees’ for purposes of [the ITCA],”). But the defendants
here were not volunteers; they were compensated municipal employees. And even as to
volunteers, neither the ITCA nor our precedent suggests that they fall within the ITCA if
their activities were neither solicited nor supervised by the state. For example, we do
not believe the ITCA would apply to a private vigilante who took it upon himself or
herself to enforce state criminal law on his or her own.
