A federal judge has ruled that the family of an unarmed man who was shot and killed by Waterloo police should not be allowed to characterize the death as murder and has issued a protective order to keep confidential certain records in the case.

The rulings settle two of the preliminary legal skirmishes in a civil lawsuit over the death of 41-year-old Brent Boggess, who was shot and killed by Waterloo Police Officer Kenneth Schaaf during a November 2021 traffic stop.

Boggess’ family is suing Schaaf and the city in U.S. District Court for the Northern District of Iowa, claiming wrongful death and excessive force. The defendants have denied any wrongdoing.

In the petition that marks the family’s initial court filing in the case, attorneys noted the shooting was determined by the state medical examiner to be the result of “homicide” – the result of one person killing another person. The family’s attorneys said the death should be considered “murder,” which is a term typically used to describe the criminal act of an unjustified killing.

In filings with the court, the City of Waterloo asked that the words “homicide” and “murder” be stricken from the petition, arguing the words were “immaterial, impertinent or scandalous.”

Attorneys for the family objected, telling the court, “The only scandalous part of this dispute is that an Iowa law enforcement officer literally got away with murder — not that plaintiffs are accurately pointing this out … Calling a defendant who intentionally shot and killed someone a ‘murderer’ in a wrongful death lawsuit is just like calling a defendant a ‘racist’ in a race discrimination case, and should not be struck from the record.”

The city also asked the court to strike from the petition a sentence that stated, “Due to the reluctance of prosecutors to pursue criminal charges against police officers who commit crimes, the victims of wrongdoing by law enforcement officers are left with no available redress except through the pursuit of money damages using our civil justice system.”

The city claimed that assertion has no bearing on the case and impugns the character and ethics of Black Hawk County prosecutors.

In response, lawyers for the family told the court the case “presents a perfect example of the lack of prosecution in Iowa of law enforcement officers who kill detainees under the color of state law. Compare the available cruiser and body-cam video of this matter with the key factual claim in the county attorney’s report exonerating Defendant Schaaf of criminal responsibility. The county attorney wrote, ‘rather than voluntarily surrendering to law enforcement, Boggess apparently baited officers to exit their patrol units and approach him on foot. When officers did so, Boggess quickly accelerated his truck, putting the officers at significant risk of bodily harm.’ The problem with this factual claim is that it is a work of fiction. It just did not happen. The video proves it did not happen.”

U.S. Magistrate Judge Mark Roberts ruled recently in the city’s favor, striking from the petition the reference to “murder,” which he noted is a criminal offense that has not been charged, and the reference to prosecutors’ alleged reluctance to pursue charges against police officers, ruling that the assertion is irrelevant to the wrongful death claim.

Roberts ruled in favor of the family, however, on their use of the word “homicide” to describe Boggess’ death, noting it appeared to be a “readily verifiable fact.”

Boggess to police: ‘Dude, I’m unarmed’

Boggess was killed shortly after a Waterloo police officer attempted to pull him over in the early hours of Nov. 16, 2021. Boggess stopped and talked to the officer who initiated the stop, but then drove away toward his home with the officer in pursuit. Eventually, seven other police officers responded to the incident.

Boggess was eventually stopped in an alley where officers deployed stop-sticks on the pavement in front of his truck and a police car pulled in behind Boggess. The lawsuit alleges that body-camera footage shows Boggess telling police he had “mental health issues.”

About that same time, Officer Nick Weber allegedly entered the alley, driving toward the front of Boggess’ truck and over the stop-sticks deployed by his fellow officers. Boggess then pulled forward and the two vehicles collided at a low rate of speed, according to the lawsuit.

Officer Schaaf, standing near the passenger side of Boggess’ truck, then fired five rounds into the vehicle, with four of the bullets striking Boggess. At the time, the police officers who had been conversing with Boggess were standing near the driver’s side of the truck and were in Schaaf’s line of fire, according to the lawsuit.

Body-camera footage allegedly shows Boggess getting out of his truck, saying, “Dude, I’m unarmed,” and then collapsing to the ground.

Judge issues protective order for documents

Another of the recent legal skirmishes in the case involves the City of Waterloo’s efforts to secure a blanket protective order to keep confidential all documents produced in the case that might prove to be “privileged, sensitive and/or embarrassing.”

Attorneys for the Boggess family objected to what they called “an extremely broad protective order” wherein any information produced by the city would remain privileged and confidential until the court said otherwise.

“This lawsuit was brought by the plaintiffs in order to expose wrongdoing on the part of the defendants,” the family’s lawyers argued in court filings. “Any public harm that possibly could be created by the disclosure of the requested information, is far outweighed by the public harm from nondisclosure.”

The main point of contention appears to be Schaaf’s personnel file with the police department – a record that is exempt from the public-disclosure requirements of Iowa’s Open Records Law. The city says Schaaf may have “a privacy interest in this file which may warrant marking the file as confidential” if it is produced as part of the litigation.

The city says the family also wants access to two police officers’ “medical files,” which would also be considered exempt from disclosure under the Open Records Law.

Blanket protective orders, based on the assumption that all records produced through discovery in a civil case should be treated as confidential, are not unusual in civil litigation and the courts have held they’re necessary to help ensure a speedy, less costly process.

Recently, Judge Roberts sided with the City of Waterloo by issuing a protective order for all documents that are either protected from public disclosure by state or federal law, or which concern investigations conducted by “any agency that has designated such investigation as confidential.”

The order also covers medical information, “personal identity information,” and the personnel or employment records of individuals. In addition, any depositions or testimony pertaining to the protected records may be considered confidential.

Any party that objects to designation of a document as confidential can then file a motion seeking reversal of that designation.

Attorneys for the Boggess family have asked the court to modify the order, arguing that in its present state it allows the city to designate as confidential any police report they so choose, contrary to Iowa law.

The court has yet to rule on that request.

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