Thomas Moran v. Anne Marie Clark

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-2055

___________

Thomas Moran, *

*

Plaintiff/Appellee, *

*

v. *

*

Anne-Marie Clarke; Robert Haar; *

Wayman F. Smith, III; Jeffery Jamison; * Appeal from the United States

Clarence Harmon, comprising the * District Court for the Eastern

Board of Police Commissioners * District of Missouri.

for the City of St. Louis; Ronald *

Henderson; Paul M. Nocchiero; *

Gregory Hawkins; Al Klein; Willie *

Thirdkill, *

*

Defendants/Appellants, *

*

Jack Huelsmann; William Kusmec; *

William Swiderski; Richard *

Booker, Jr.; Terrence DuPree; Barry *

Greene; Steven Petty; Harvey Laux, *

*

Defendants. *

___________

Submitted: November 19, 2003

Filed: February 26, 2004

___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.

___________

BEAM, Circuit Judge.

This case returns to our court upon the district court's denial of the Appellants'

motion for summary judgment based on qualified immunity. Because it was clearly

established at all relevant times that the conduct at issue in this litigation would

amount to a substantive due process violation, we affirm.

I. BACKGROUND

The lengthy and involved facts of this unfortunate case are detailed in our prior

en banc opinion, Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002) (en banc) (Moran I),

and are repeated here only to the extent necessary to dispose of the narrow issue

before us. Thomas Moran, a St. Louis city police officer brought this 42 U.S.C. §

1983 action against members of the St. Louis Board of Police Commissioners, the

Chief of Police, and four internal affairs police officers, all in their individual and

official capacities. As our prior opinion sets forth, the 1997 incident giving rise to

this lawsuit stems from a police brutality incident involving a developmentally

disabled individual. As a result of that incident, Moran claims that Appellants

manufactured evidence to implicate him in the beating, and conspired to effect his

suspension, arrest, and prosecution.

The case first went to trial in November 1999, and resulted in judgment as a

matter of law for Appellants. We reversed that judgment. We held that Moran had

established a jury question on his substantive due process claims, stating:

Viewing the record in the appropriate light, Moran established a

plausible case for each of his contentions. He introduced evidence that

tends to show a police department that publicly and financially

-2-

committed itself to producing a culprit for an alleged wrongdoing before

any such wrongdoing was actually established. He produced proof of

questionable procedures, of pressures placed on officers to incriminate

a specific person or corroborate the department's official line, of a hasty

condemnation of Moran and of improper consideration of his race.

Moreover, he offered proof that, at various times, certain defendants

purposely ignored evidence that strongly tended to exonerate him. In

short, drawing all inferences in his favor, a reasonable jury could

conclude that some or all of the defendants intentionally set up an

innocent Moran for patently arbitrary reasons.

Id. at 647-48. Thus, we remanded the case for a new trial, and noted that the qualified

immunity defense had not yet been adjudicated. Id. at 650 n.6.

Upon remand to the district court, Appellants filed a motion for summary

judgment based on qualified immunity. Appellants argue that due to the Supreme

Court's 1994 plurality opinion in Albright v. Oliver, 510 U.S. 266, 271, 274-75

(1994) (holding by plurality opinion that there was no substantive due process right

arising from a malicious prosecution), they could not have known that their actions

violated the Constitution. Appellants concede they are prohibited from relitigating

the merits of whether Moran alleges a viable substantive due process claim, but they

contend that they could not have foreseen the alleged change in the interpretation of

Albright until the en banc opinion was released. Thus, they claim, in 1997 it was not

clearly established that their actions violated the Constitution. The district court

denied the motion for qualified immunity and held that "[d]efendants can hardly claim

to not have had fair warning that conduct such as manufacturing evidence, conspiring

to wrongfully prosecute Moran, and other actions that shock the conscience and

offend human dignity, might not be unlawful or violative of [Moran's constitutional

rights]."

-3-

II. DISCUSSION

Because Appellants appeal from the denial of qualified immunity, our review

is limited to the legal question of whether the officials are entitled to immunity. We

must accept the summary judgment facts as described by the district court because

evidentiary determinations are not presently appealable. Hawkins v. Holloway, 316

F.3d 777, 781 (8th Cir. 2003). Normally, the qualified immunity defense to a

substantive due process claim would require us to first determine whether the facts

advanced demonstrate a violation of Moran's constitutional substantive due process

rights. However, our prior opinion disposes of that matter, and Appellants concede

that this first question is not in dispute. Thus, the only question we decide here is

whether the Appellants' actions were clearly established as violative of Moran's

substantive due process rights at the time of the alleged conduct. Id.

Appellants are not entitled to qualified immunity if they had "fair warning" that

their conduct violated Moran's rights. Hope v. Pelzer, 536 U.S. 730, 741 (2002). But

the absence of a factually similar case does not guarantee government officials the

shield of qualified immunity, especially in the substantive due process context.

Hawkins, 316 F.3d at 788. When government officials engage in conscious-

shocking, egregious behavior that is clearly outside the scope of their discretionary

authority, they are not entitled to qualified immunity under section 1983. Id.

Appellants assert that the law was not clearly established. Specifically they

claim that due to existing case law, it was not clear that the Constitution forbade

officials from manufacturing evidence and using questionable procedures in an

attempt to scapegoat an officer for serious wrongdoing, possibly on account of his

race. Appellant defines the issue too narrowly. If this were proper, the "factually

indistinguishable case" theory dismissed by the Hawkins court would have prevailed.

While each qualified immunity inquiry is factually driven, e.g., Saucier v. Katz, 533

U.S. 194, 202 (2001), the fact remains that qualified immunity is reserved for state

-4-

officials whose conduct is objectively reasonable in light of the clearly established

law at the time of the incident in question. Mueller v. Tinkham, 162 F.3d 999, 1002

(8th Cir. 1998). The key inquiry in deciding "whether a right is clearly established

is whether it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted." Katz, 533 U.S. at 202.

Even under the Supreme Court's generous authorization of the qualified

immunity defense, see Malley v. Briggs, 475 U.S. 335, 341 (1986) (explaining that

qualified immunity protects "all but the plainly incompetent or those who knowingly

violate the law"), Appellants cannot invoke it here. Appellants, especially as law

enforcement officials, knew or should reasonably have known that the specific

conduct outlined by Moran was unlawful. No reasonable official would believe it

was permissible to hatch a plan to scapegoat an innocent officer for acts of police

brutality against a developmentally disabled citizen. On April 14, 1997, and every

day thereafter, such actions were clearly beyond the scope of Appellants'

discretionary authority. Hawkins, 316 F.3d at 788. No reasonable officials in

Appellants' shoes could have thought they had the discretion to take these steps. Id.

Appellants arguments based on Albright are unavailing. They argue that

because the Supreme Court held in Albright that a substantive due process claim

would not lie in a malicious prosecution claim, 510 U.S. at 271, 274-75, they could

not have been on notice that their conduct violated the Constitution. We disagree.

As we explained in Moran I, Appellants' purported actions went well beyond the

realm of malicious prosecution. 296 F.3d at 647. "Instead of simply allowing a

weakly supported prosecution to proceed," Moran asserts that Appellants engaged in

a "purposeful police conspiracy to manufacture . . . false evidence." Id.

Viewing the summary judgment facts as found by the district court, the alleged

conduct of each of the Appellants "was so far beyond the bounds of the performance

of his official duties that the rationale underlying qualified immunity is inapplicable."

-5-

Hawkins, 316 F.3d at 788. Finally, we decline Appellants' invitation that we

consider individual evidentiary questions that were rejected by the district court upon

a review of the facts. We have no jurisdiction to do so. Hawkins, 316 F.3d at 781.

III. CONCLUSION

We therefore affirm the judgment of the district court.

______________________________

-6-