Allan Rodgers v. Daniel Knight

United States Court of Appeals

For the Eighth Circuit

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No. 14-1425

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Allan Rodgers; Gregory Allan Rodgers,

lllllllllllllllllllll Plaintiffs - Appellants,

v.

Daniel K. Knight; Brian Liebhart; Thomas Quintana; Lloyd Simons; Mark

Brotemarkle; Mike Valley; Kyle Lucas; Geoffrey Jones; Kenneth M. Burton;

Cassandra Rogers,

lllllllllllllllllllll Defendants - Appellees,

Richard Hicks,

lllllllllllllllllllll Defendant,

City of Columbia, Missouri; Boone County,

lllllllllllllllllllll Defendants - Appellees,

United States of America,

lllllllllllllllllllllIntervenor.

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No. 14-1454

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Raymond D'Sean Franklin; Robert Dewayne Franklin,

lllllllllllllllllllll Plaintiffs - Appellants,

v.

Daniel K. Knight; Geoffrey Jones; Kenneth M. Burton; Richard Hicks; City of

Columbia Missouri; Boone County,

lllllllllllllllllllll Defendants - Appellees.

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Appeal from United States District Court

for the Western District of Missouri - Jefferson City

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Submitted: September 11, 2014

Filed: March 23, 2015

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Before MURPHY, COLLOTON, and KELLY, Circuit Judges.

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COLLOTON, Circuit Judge.

This is a consolidated appeal from two decisions of the district court.1

Appellants Robert and Raymond Franklin in one case, and Allan and Greg Rodgers

in another, brought suit under 42 U.S.C. § 1983 against law enforcement officials and

municipalities. They alleged, as relevant on appeal, violations of rights under the

First, Second, Fourth, Fifth, and Fourteenth Amendments. The claims relate to the

seizure of firearms from the appellants and the arrests and prosecutions of Greg

Rodgers and Raymond Franklin. In both cases, the district court granted summary

judgment for the defendants on all claims. We affirm.

1

The Honorable Nanette K. Laughrey, United States District Judge for the

Western District of Missouri.

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I.

The Rodgers case involves an arrest of Greg Rodgers in August 2011, a

subsequent search of his residence, a prosecution that was later dismissed, and the

retention of seized firearms. Five police officers from Columbia, Missouri, arrested

Greg at his apartment complex on August 12, 2011, on a municipal warrant for failure

to appear in court. Greg was outside when officers approached, and he started to jog

toward his apartment. When officers ordered Greg to stop, he turned around, took a

Browning 9 millimeter pistol from his waistband, and threw the gun aside. After

officers handcuffed him, Greg asserted that he had a Florida permit to carry a

concealed weapon, but did not produce the permit. An arresting officer, Thomas

Quintana, prepared a “Probable Cause Statement” for prosecutors that same day,

alleging that Greg committed the offenses of unlawful use of weapons and resisting

or interfering with arrest.

Later that month, police executed a warrant to search the “premises” of Greg’s

apartment for “ammunition and firearms and any other evidence related to the crime

of unlawful possession of a weapon.” Officers seized several firearms belonging to

Greg Rodgers or his father, Allan Rodgers, from a locked storage closet below the

stairs that led to Greg’s second-floor apartment.

A county prosecutor then charged Greg with unlawful use of a firearm by

carrying a concealed weapon. Later, after Greg’s counsel notified the prosecutor in

writing that Florida had issued Greg a permit to carry a concealed weapon, the

prosecutor amended the charge to allege possession of a firearm by a “fugitive from

justice.” The prosecution’s theory was that Greg was a fugitive from justice because

he failed to appear in court on a summons that was issued for leaving the scene of a

motor vehicle accident. The prosecutor also charged Greg with resisting arrest based

on the August 12 incident.

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The trial court dismissed the firearms charge, and the Missouri Court of

Appeals affirmed on February 5, 2013. State v. Rodgers, 396 S.W.3d 398 (Mo. Ct.

App. 2013). The court of appeals noted that “fugitive from justice” is not defined by

statute, and that no case had defined the phrase in this context. Id. at 400-01. But the

court concluded that the rule of lenity required strict construction of the ambiguous

language in favor of Rodgers. Id. at 403. Thus, the court held that Greg was not a

fugitive from justice and affirmed the dismissal of that charge. Id. at 404. The

Missouri Supreme Court denied an application for transfer on April 30, 2013, and in

May 2013, the prosecutor dismissed the remaining charge for resisting arrest.

In early 2012, Allan Rodgers asked the Boone County, Missouri, Prosecuting

Attorney’s Office to return his firearms that were seized during the search in August

2011. An assistant prosecuting attorney and the chief investigator at the prosecuting

attorney’s office directed the police department’s evidence custodian in February

2012 to retain the firearms; the investigator noted that prosecutors would be refiling

a criminal case against Greg. Eventually, a police captain authorized the evidence

custodian to release Allan’s firearms, and Allan reclaimed them on September 21,

2012. Greg requested return of his firearms on October 8, 2012, and police returned

all but the Browning 9 millimeter pistol on October 22. Police eventually notified

Greg on July 30, 2013, that he could pick up the Browning pistol.

II.

A.

Greg’s lead argument on appeal is that county prosecutors and police officers

arrested and prosecuted him without probable cause for unlawful use of a firearm by

carrying a concealed weapon. Greg contends that there was no basis for that charge

once he told the arresting officers that he had a permit from Florida to carry a

concealed weapon. Alternatively, he asserts that he lawfully carried the firearm

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because Missouri’s prohibition on carrying concealed weapons does not apply when

a person “is in his or her dwelling unit or upon premises over which the actor has

possession, authority or control.” Mo. Rev. Stat. § 571.030.3.

The prosecutors have absolute immunity for filing the charge, Imbler v.

Pachtman, 424 U.S. 409, 430-31 (1976), so the district court properly dismissed the

claim against them. Greg appears to contend that police officers seized him without

probable cause on August 12, but that claim fails because there was a warrant for

Greg’s arrest based on his failure to appear in court. The warrant justified the seizure

whether or not other reasons articulated by the officers—including unlawful use of

a weapon—were also sufficient.

Insofar as Greg alleged a malicious prosecution claim against police officers

based on the filing of the concealed weapons charge, he has not demonstrated any

damages arising from that action, so the claim was properly dismissed. See Chi.

Great W. Ry. Co. v. Robinson, 243 F.2d 389, 391 (8th Cir. 1957). Prosecutors

eventually amended the charge to allege unlawful possession as a fugitive from

justice, and Greg was not tried on the concealed weapons allegation.

In any event, the police officers were at least entitled to qualified immunity on

a Fourth Amendment claim for their role in recommending the unlawful use of

weapons charge. The officers determined that Greg did not have a Missouri permit

to carry a concealed weapon, and they were not required to accept Greg’s assertion

that he had been issued a permit from Florida—especially when Greg attempted to

flee from police and did not carry such a permit on his person as required by Florida

law. Fla. Stat. § 790.06. It was not clearly established that the officers, having

developed probable cause for a concealed firearms offense, were required to

investigate Greg’s claim about a Florida permit; our precedent suggests the opposite.

Clayborn v. Struebing, 734 F.3d 807, 809-10 (8th Cir. 2013). Although Greg

reportedly informed different police officers about the Florida permit during a

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previous encounter in January 2011, there was no evidence that the arresting officers

in August 2011 knew that information.

Nor was it clearly established that probable cause was defeated by the

“dwelling unit” exception for carrying concealed weapons in Missouri. No court had

construed the meaning of “dwelling unit or . . . premises over which the actor has

possession, authority or control,” Mo. Rev. Stat. § 571.030.3, and there was Missouri

authority suggesting that “a tenant does not have control of the common areas and

thus does not possess them.” Motchan v. STL Cablevision, Inc., 796 S.W.2d 896, 900

(Mo. Ct. App. 1990). Officers reasonably could have believed that Greg was

forbidden to carry a concealed weapon without a permit in common outdoor areas of

the apartment complex. Therefore, officers are entitled to qualified immunity for

recommending the firearms charge to county prosecutors.

B.

Greg next appeals the dismissal of claims relating to the execution of the search

warrant at his apartment. He argues that an officer sought the warrant without

probable cause to believe that Greg committed a firearms offense, because Greg’s

failure to appear in municipal court did not make him a “fugitive from justice” under

Mo. Rev. Stat. § 571.070.1(2). A police officer applying for a search warrant is

entitled to qualified immunity unless the warrant application is “so lacking in indicia

of probable cause as to render official belief in its existence unreasonable.” Malley

v. Briggs, 475 U.S. 335, 344-45 (1986).

At the time of the warrant application, the phrase “fugitive from justice” was

undefined by Missouri statute or case law, and the Missouri Court of Appeals later

characterized a proper analysis of the meaning as “elusive.” Rodgers, 396 S.W.3d at

402. Because the question was close, and it was not clearly established that “fugitive

from justice” excluded a person with an outstanding arrest warrant for municipal

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violations, it was reasonable for the officer seeking the warrant to believe that Greg’s

possession of firearms violated Missouri law. Therefore, the district court properly

held that officers involved in procuring the warrant were entitled to qualified

immunity.

Greg also contends that the searching officers exceeded the scope of the

warrant and thus violated the Fourth Amendment when they seized firearms from a

storage closet. The warrant authorized a search of the “premises” described as 1607

Windsor Street, apartment 8. The storage closet was located beneath stairs that led

to Greg’s second-floor apartment. It was reasonable for the officers to believe that

they could search a structure “appurtenant to the premises” pursuant to a warrant

authorizing a search of the premises. See United States v. Fagan, 577 F.3d 10, 13

(1st Cir. 2009). It was also reasonable for the officers to conclude that the storage

closet—for which Greg had a key, and over which he admitted control—was

appurtenant to the apartment. In similar circumstances, this court held that a

resident’s consent to search an apartment included authority to search a locked

storage room that was located ten feet outside of the door of the apartment, where the

resident’s lease included access to the room and the resident possessed a key. United

States v. Ware, 890 F.2d 1008, 1010-11 (8th Cir. 1989); see also United States v.

Principe, 499 F.2d 1135, 1137 (1st Cir. 1974) (holding that cabinet located three to

six feet from apartment was appurtenant thereto and properly searched). The search

was reasonable; at a minimum, the officers are entitled to qualified immunity for the

scope of their search.

Greg also challenges the district court’s dismissal of his claims against

prosecutors Knight and Rogers based on their alleged role in the seizure of his guns.

Greg presented no evidence, however, that the prosecutors were involved in drafting

or executing the search warrant, so they are not responsible for any constitutional

violations arising from the seizure of the weapons. See Parrish v. Ball, 594 F.3d 993,

1001 (8th Cir. 2010). In any event, even if Knight or Rogers played a role in the

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seizures, they would be entitled at least to qualified immunity for the same reasons

that the officers are not subject to suit. See Burns v. Reed, 500 U.S. 478, 486-87, 496

(1991).

C.

The Rodgerses argue that officials deprived them of property without due

process of law by retaining their firearms at the police department without a

post-deprivation hearing. The district court ruled that the guns were properly retained

because they were potential evidence in future court proceedings, and that officials

at a minimum were entitled to qualified immunity.

“[W]hen seizing property for criminal investigatory purposes, compliance with

the Fourth Amendment satisfies pre-deprivation procedural due process as well.”

Walters v. Wolf, 660 F.3d 307, 314 (8th Cir. 2011) (internal quotation marks omitted).

Where retention of evidence is justified by pending charges or an arrest warrant, no

further process is required. Id.; United States v. David, 131 F.3d 55, 59 (2d Cir.

1997). Likewise, if evidence is “needed for an ongoing or proposed specific

investigation,” law enforcement authorities are entitled to retain it. Sovereign News

Co. v. United States, 690 F.2d 569, 578 (6th Cir. 1982).

The criminal charge against Greg was pending or the subject of appellate

proceedings through April 30, 2013. Throughout that time, prosecutors and police

had a reasonable basis to retain the seized firearms as evidence that Greg unlawfully

possessed a firearm. Although some of the firearms belonged to Allan, they were

seized from a storage locker to which Greg had access, and it was reasonable for

officials to believe that they could be evidence of unlawful possession by Greg. All

but the Browning 9mm pistol were returned to Allan or Greg by the end of October

2012, before Greg’s criminal case was resolved, so the district court correctly

dismissed claims based on the retention of those firearms.

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Police returned the Browning pistol to Greg within three months after the state

supreme court refused to hear an appeal in Greg’s criminal case. Given the need for

information about legal proceedings to flow from the court to prosecutors to the

police department and the evidence custodian, retention for that relatively brief period

without further hearing was reasonable and thus did not violate the Constitution. Cf.

Walters, 660 F.3d at 310, 315 (holding retention after dismissal of charges was

unconstitutional deprivation where officials refused to return property until a court

order instructed them to do so); Lathon v. City of St. Louis, 242 F.3d 841, 843-44 (8th

Cir. 2001) (same). The prosecutors who instructed the officers to retain the guns as

evidence are entitled to absolute immunity. Thompson v. Walbran, 990 F.2d 403,

404-05 (8th Cir. 1993) (per curiam); see also Imbler, 424 U.S. at 430-31.

D.

The Rodgerses appeal the dismissal of claims based on the Second

Amendment. They argue that officers, and any prosecutor who directed them,

infringed their right to bear arms by seizing and retaining the firearms. Lawful

seizure and retention of firearms, however, does not violate the Second Amendment.

Indeed, this court has held that even the unlawful retention of specific firearms does

not violate the Second Amendment, because the seizure of one firearm does not

prohibit the owner from retaining or acquiring other firearms. Walters, 660 F.3d at

317-18. Greg also contends that the prosecutor defendants violated his right to bear

arms by urging the court to adopt a condition of release that forbade Greg to possess

a firearm. As the district court observed, the state court adopted the condition at the

urging of a prosecutor who is not a defendant, and, in any event, the defendant

prosecutors are absolutely immune from suit over their pleadings in the criminal case.

Imbler, 424 U.S. at 430-31. The district court correctly dismissed the Second

Amendment claims.

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E.

Greg Rodgers next argues that the district court erred in dismissing his claims

alleging that officers arrested him and caused him to be prosecuted in retaliation for

the exercise of his First Amendment right to freedom of speech. As of 2011, an

officer was entitled to qualified immunity against this type of retaliation claim if an

arrest or prosecution was supported by probable cause. Reichle v. Howards, 132 S.

Ct. 2088, 2096-97 (2012). The qualified immunity extends further to an action based

on at least “arguable” probable cause. McCabe v. Parker, 608 F.3d 1068, 1078-79

(8th Cir. 2010); Thayer v. Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012). For reasons

discussed in connection with Greg’s Fourth Amendment claims, a reasonable officer

in 2011 could have believed that there was probable cause to charge Greg with

unlawful use of a firearm based on carrying a concealed weapon or unlawful

possession of a firearm as a fugitive from justice. Therefore, the district court was

correct to dismiss the First Amendment claims against the officers. The prosecutors

are entitled to absolute immunity for their decision to prosecute Greg. See Imbler,

424 U.S. at 430-31.

F.

The Rodgerses dispute the district court’s grant of summary judgment for the

City of Columbia and Boone County on claims that they failed adequately to train

their employees. Greg argues that the municipalities failed to train police officers and

prosecutors regarding a citizen’s rights, under Mo. Rev. Stat. § 571.030.3, to carry a

concealed weapon in common areas of leased property, and about the validity in

Missouri of concealed carry permits issued in Florida.

A municipality may be liable under § 1983 for failure to train where (1) the

municipality’s training practices were inadequate; (2) the municipality was

deliberately indifferent to the constitutional rights of others, such that the “failure to

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train reflects a ‘deliberate’ or ‘conscious’ choice” by the municipality; and (3) an

alleged deficiency in the training procedures actually caused the plaintiff’s

constitutional injury. City of Canton v. Harris, 489 U.S. 378, 388-91 (1989);

Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996). Municipalities do not enjoy

qualified immunity, but a municipality “cannot exhibit fault rising to the level of

deliberate indifference to a constitutional right when that right has not yet been

clearly established.” Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir.

2007) (en banc). To establish municipal liability, a plaintiff must first show that an

individual defendant committed a constitutional violation. City of Los Angeles v.

Heller, 475 U.S. 796, 798-99 (1986).

Greg has not established a submissible claim that the municipalities were

deliberately indifferent to the rights of citizens to carry concealed weapons. It was

not clearly established that a citizen without a permit is permitted to carry a concealed

weapon in common areas of an apartment complex or other leasehold. The lack of

clarity regarding the scope of Mo. Rev. Stat. § 571.030.3 “undermines the assertion

that a municipality deliberately ignored an obvious need for additional safeguards.”

Szabla, 486 F.3d at 394.

The City of Columbia is not liable for failing to instruct officers that Florida

concealed carry permits are entitled to reciprocity, because any failure to do so did

not cause Greg’s arrest or prosecution. Greg has presented no evidence that the

arresting officer who recommended charges had prior knowledge that Greg was

issued a Florida permit, and it was not obvious that officers were required promptly

to investigate Greg’s assertion during his arrest that he was issued a Florida permit

that he did not carry on his person. The related allegation that Boone County failed

adequately to train prosecutors about reciprocity of permits is belied by the record.

The record shows that after Greg’s counsel notified the prosecutor that Greg had a

Florida permit, R. Doc. 69-9, at 2, the prosecutor amended the complaint to withdraw

the concealed carrying charge and to substitute the charge of unlawful possession by

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a fugitive from justice. R. Doc. 69-9, at 3. A “mere allegation of inadequate training

will not give rise to a genuine dispute of material fact on the subject.” Seymour v.

City of Des Moines, 519 F.3d 790, 801 (8th Cir. 2008).

G.

The Rodgerses argue finally that the district judge was not authorized as a

judge in senior status to preside over this case, and that the judge should have recused

herself. The claim that a senior judge lacks authority to adjudicate cases under

Article III is foreclosed by precedent. Williams v. Decker, 767 F.3d 734, 743 (8th

Cir. 2014). The recusal claims appear for the first time on appeal, so we review for

plain error, Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 663 (8th Cir. 2003), and

we find none. That the Rodgerses’ counsel filed a judicial complaint against the

district judge in previous, unrelated litigation is insufficient to establish that the

judge’s impartiality in this matter might reasonably be questioned. That the judge

formerly served as a municipal judge in Columbia likewise raises no reasonable

question about appearance of impartiality, and there is no evidence of bias.

III.

The Franklin appeal involves a prosecution of Raymond Franklin and a seizure

of firearms owned by Robert Franklin. In December 2008, federal and state law

enforcement officers sought to arrest a fugitive named Billy Rogers in a drug

trafficking investigation. They traced Rogers to Robert Franklin’s residence at 1670

Sonora Drive in Columbia. Officers asked Robert either to direct Rogers outside or

to allow officers to search the home. Robert refused, so officers secured a warrant

that authorized the search of Robert’s home for “evidence of drug trafficking” and the

arrest of Rogers.

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During the ensuing search, officers seized twelve firearms, including a Vulcan

.45 caliber handgun from a locked bedroom. The bedroom also contained pieces of

mail addressed to Raymond Franklin at 1670 Sonora Drive, a package with

Raymond’s name on it, and correspondence from the Circuit Court of Boone County

addressed to Raymond. Officers also seized drug paraphernalia and small quantities

of cocaine and marijuana from other locations in the home.

On June 30, 2010, Sergeant Geoffrey Jones executed a probable cause

statement for prosecutors alleging that Raymond Franklin, on the date of the search,

unlawfully possessed the Vulcan .45 as a previously convicted felon. See Mo. Rev.

Stat. § 571.070.1(1). A county prosecutor signed a criminal complaint alleging that

Raymond committed the offense, and Raymond was arrested. Raymond had been

convicted of a felony drug charge in 2007, and he moved from Missouri to North

Carolina in 2008 while serving a sentence of probation. After the 2010 arrest, a state

court revoked Raymond’s probation. In April 2011, Missouri prosecutors dismissed

the firearms charge against Raymond.

Robert’s firearms were held by the Columbia Police Department from

December 15, 2008, through August 23, 2012. On August 23, 2012, all but one gun,

a Remington Model 870, was released to Robert’s designee. The Remington had

been reported stolen, and police returned that firearm to its registered owner.

IV.

A.

Raymond Franklin argues that officers and prosecutors violated his Fourth

Amendment rights because they did not have probable cause to arrest and prosecute

him for unlawful possession of a firearm. The prosecutors are entitled to absolute

immunity for their initiation of the prosecution, see Imbler, 424 U.S. at 430-31, and

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the district court properly dismissed Franklin’s claim against them. One of the police

officer defendants, Kenneth Burton, was not involved in the arrest or prosecution, so

there is no merit to a claim against him.

As to Jones, the officer who prepared the probable cause statement submitted

with the warrant application for Raymond Franklin’s arrest, we conclude that there

was probable cause for the arrest and prosecution, and thus no violation of the Fourth

Amendment. A person commits the crime of unlawful possession of a firearm if he

has been convicted of a felony under Missouri law and knowingly possesses a

firearm. Mo. Rev. Stat. § 571.070.1(1). Possession may be actual or constructive,

and a person has “constructive possession” if he “has the power and the intention at

a given time to exercise dominion or control over the object either directly or through

another person or persons.” Mo. Rev. Stat. § 556.061(22). Constructive possession

does not require exclusive control or physical presence, and circumstantial

evidence—such as “finding defendant’s personal belongings” with firearms—can

establish possession. State v. Evans, 410 S.W.3d 258, 263 (Mo. Ct. App. 2013).

Police found the Vulcan .45 in a bedroom along with several pieces of mail

addressed to Raymond Franklin at 1670 Sonora Drive and a package with Raymond’s

name on it. This evidence was sufficient to establish probable cause that Raymond

constructively possessed the gun. Raymond argues that because his probation

supervision had been transferred to North Carolina, there could be no probable cause

that he possessed a firearm in Missouri, but out-of-state supervision alone did not

foreclose a prudent officer from suspecting based on circumstantial evidence that

Raymond was in Missouri nonetheless. There was probable cause to believe that

Raymond possessed the firearm as a convicted felon, and the arresting officer did not

violate Raymond’s Fourth Amendment rights.

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B.

The Franklins assert that police officers unlawfully seized firearms during the

search of Robert’s residence, because the warrant authorized only a search for

“[e]vidence of drug trafficking.” Firearms, however, are tools of the drug trafficking

trade, and officers with probable cause to search for drug trafficking evidence

reasonably could have determined that firearms in proximity to drugs or drug

paraphernalia were within the scope of the warrant. See United States v. Nichols, 344

F.3d 793, 798-99 (8th Cir. 2003) (per curiam). The firearms, moreover, were in plain

view within areas to which officers had lawful access, so whether or not the firearms

came within the terms of the warrant, the officers permissibly could seize the guns

based on probable cause that they were evidence of a crime. See Horton v.

California, 496 U.S. 128, 142 (1990). The district court properly granted summary

judgment for the prosecutor defendants on this claim, because there was no evidence

that they participated in the drafting, review, or execution of the search warrant. See

Parrish, 594 F.3d at 1001.

C.

Robert Franklin also argues that the officers and prosecutors deprived him of

property without due process of law by retaining his firearms without a

post-deprivation hearing. The district court ruled that the authorities properly

retained the guns as potential evidence in federal or state court proceedings, and that

officers and prosecutors were at a minimum entitled to qualified immunity.

The Columbia police officers retained the Vulcan .45 while unlawful

possession of a weapon charges were pending against Raymond. After the charge

was dismissed in April 2011, officers continued to retain the firearm pursuant to

prosecutor Richard Hicks’s recommendation that the Vulcan .45 would be needed as

evidence for refiling charges against Raymond. As to the other firearms, Officer

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Jones was advised that the guns may have been relevant evidence in a federal

investigation of a drug conspiracy involving Billy Rogers, and Jones communicated

with federal prosecutors about the status of the guns. Officer Jones ultimately

directed the police department to release the guns in August 2012 after a federal

prosecutor informed him that the guns were no longer needed for the federal

investigation.

This court has recognized a due process claim under § 1983 where police

officers refuse to return seized items to their owner without a court order after it is

determined that the items were not contraband or required as evidence in a court

proceeding. Lathon, 242 F.3d at 843-44. In this case, however, police retained the

firearms because federal and state prosecutors advised them that the guns were

potential evidence in ongoing criminal investigations, and there was a reasonable

basis for the officers to believe there was a legitimate investigative purpose for the

retention. At a minimum, the act of retaining the guns did not violate clearly

established law. The prosecutors are entitled to absolute immunity for recommending

that the Vulcan .45 be retained for Raymond’s prosecution and for the potential

refiling of charges. See Thompson, 990 F.2d at 404-05.

Robert Franklin further argues that the officers’ transfer of the Remington 870

shotgun to its registered owner violated procedures for the return of unclaimed seized

property, as set forth in Mo. Rev. Stat. § 542.301.1. “A violation of state law, without

more, is not the equivalent of a violation of the Fourteenth Amendment.” Meis v.

Gunter, 906 F.2d 364, 369 (8th Cir. 1990). Insofar as Robert argues that the transfer

of the shotgun without a post-deprivation proceeding violated his due process rights,

Robert has failed to present sufficient evidence that he had a property interest in the

shotgun. Robert was not the registered owner of the gun, the gun had been reported

stolen, and Robert testified in his deposition that he “[couldn’t] really say” if the gun

belonged to him. See generally Bd. of Regents v. Roth, 408 U.S. 564, 570 (1972).

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D.

Robert Franklin disputes the dismissal of his claim that officers arrested and

prosecuted his son Raymond in retaliation for Robert’s exercise of his First

Amendment right by withholding consent to search his home. But even assuming the

unlikely proposition that an arrest of Raymond could amount to a violation of

Robert’s rights under the First Amendment, see Smith v. Frye, 488 F.3d 263, 273 (4th

Cir. 2007), the district court correctly dismissed the claim against officers because

there was probable cause that Raymond constructively possessed the Vulcan .45

firearm in violation of Missouri law. See Reichle, 132 S. Ct. at 2096-97. The

prosecutors are entitled to absolute immunity for their decision to pursue the unlawful

possession charge. See Brodnicki, 75 F.3d at 1266. Raymond separately advances

a claim that officers and prosecutors arrested and prosecuted him because of his race.

This equal protection claim fails because Raymond presented no direct evidence of

racial discrimination or indirect evidence that similarly situated persons were treated

differently. See Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir. 2003).

E.

The Franklins appeal the dismissal of their claims against the City of Columbia

and Boone County for failure to train employees. The Franklins contend that the

district court erred in determining that the municipalities were not liable for failure

to train officers and prosecutors regarding the law of constructive possession, the

scope of search warrants, and the due process requirements for the retention of seized

evidence. Because we conclude that no official violated the constitutional rights of

the Franklins, the related claim for failure to train also fails. Heller, 475 U.S. at

798-99. At a minimum, the municipalities did not exhibit deliberate indifference by

ignoring an obvious need to train officials about respecting constitutional rights. See

Szabla, 486 F.3d at 393.

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F.

Like the Rodgerses, the Franklins challenge the authority of the district judge

to preside as a judge in senior status, and they argue for the first time on appeal that

the judge should have recused herself. For reasons discussed with respect to the

Rodgers appeal, these points are without merit.

* * *

The judgments of the district court are affirmed.

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