United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Terry J. Harrington; Curtis W. *
McGhee, Jr., *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
The City of Council Bluffs, Iowa; *
Daniel C. Larsen; Lyle Brown, *
Submitted: September 19, 2011
Filed: April 30, 2012
Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.
RILEY, Chief Judge.
Terry J. Harrington and Curtis W. McGhee, Jr. (collectively, appellees) sued
various defendants, including police officers Daniel C. Larsen and Lyle W. Brown
(officers), under 42 U.S.C. Â§Â§ 1983 and 1985 and state law. The appellees claimed
the defendants violated the appellees? rights during the Iowa state investigation and
prosecution of the appellees for murder. The officers moved for summary judgment,
asserting they are entitled to qualified immunity on the appellees? claims that can be
defeated if the officers had probable cause to arrest the appellees. The officers appeal
the district court's denial of their motion. We reverse and remand for further
proceedings on the appellees? remaining claims.
A. Factual Background1
In 1978, the appellees were convicted and sentenced to life imprisonment
without parole for murdering John Schweer, a retired police officer who was working
as a security guard at a car dealership. In 2002, the Iowa Supreme Court vacated
Harrington's conviction and remanded the case for a new trial because the prosecutor
violated Harrington's due process rights in failing to disclose exculpatory evidence
in compliance with Brady v. Maryland, 373 U.S. 83
(1963). The new prosecutor
decided not to retry Harrington and agreed to vacate McGhee's conviction. McGhee
pled guilty, pursuant to North Carolina v. Alford, 400 U.S. 25
(1970), to second-
degree murder in exchange for a sentence of time served.
B. Procedural History
The appellees sued the officers, the prosecutors, Pottawattamie County, Iowa
(County), and the City of Council Bluffs, Iowa under 42 U.S.C. Â§Â§ 1983 and 1985
and state law. The appellees generally contend the officers investigated them without
probable cause to suspect them of the murder, knew the main prosecution witness had
lied, coerced witnesses into lying in order to frame the appellees for murder,
concealed this fact, and hid exculpatory evidence. As relevant to this appeal, the
appellees argue these actions violated Â§ 1983 by violating their (1) Fourth and
Fourteenth Amendment rights against unreasonable seizure; (2) Fifth and Fourteenth
For more factual details, see our previous opinion in McGhee v. Pottawattamie
Cnty., Iowa, 547 F.3d 922, 925-28 (8th Cir. 2008), cert. granted, 129 S. Ct. 2002
(2009), cert. dismissed, 130 S. Ct. 1047 (2010). The parties resolved that case on
appeal and the Supreme Court dismissed without entering a decision.
[End Page 2]
Amendment rights not to be deprived of their liberty without due process of law; and
(3) Fourteenth Amendment right to equal protection of the laws by targeting them
because they are African-American. Both appellees also alleged the officers and
prosecutors conspired to deprive the appellees of equal protection of the laws, in
violation of 42 U.S.C. Â§ 1985. Harrington further contends the officers violated his
First and Fourteenth Amendment rights to freedom of association and Sixth and
Fourteenth Amendment rights to a fair trial. The appellees? cases were consolidated.
In 2007, the district court found the officers were entitled to qualified immunity
regarding their failure to disclose exculpatory evidence because any failure did not
violate a right that was clearly established when the appellees were prosecuted. See
McGhee v. Pottawattamie Cnty., Iowa, 475 F. Supp. 2d 862, 911 (S.D. Iowa 2007),
aff?d in part, rev?d in part, 547 F.3d 922 (addressing only the prosecutors? appeal
from the district court's disposition of their motions in the same order). The district
court also determined a reasonable jury could find the officers (1) lacked probable
cause to arrest the appellees for murder, and (2) violated the appellees? due process
rights by fabricating evidence. Id. at 890, 910, 913. The officers did not appeal these
determinations. See generally McGhee, 547 F.3d at 925-26.
The appellees settled their claims against the County and the prosecutors. The
district court dismissed the state-law claims as time barred.
In May 2010, the officers moved for judgment on the pleadings, maintaining
the federal claims were untimely because they were akin to the tort of false
imprisonment. The district court noted whether accrual of the Â§ 1983 claims is based
on false imprisonment rules or on malicious prosecution rules depends upon which
of those torts most closely resembles the claims. See Wallace v. Kato, 549 U.S. 384
388-89 (2007) (false imprisonment); Heck v. Humphrey, 512 U.S. 477
, 484, 489-90
(1994) (malicious prosecution). The district court determined, if the appellees? claims
are more similar to false imprisonment, the claims accrued when the appellees were
[End Page 3]
charged with murder in 1978?and therefore the claims were brought well after the
applicable two-year statute of limitations expired. See Wallace, 549 U.S. at 389 (?[A]
false imprisonment ends once the victim becomes held pursuant to [legal] process.?).
However, the district court denied the officers? summary judgment motion, finding
the appellees? claims were more ?in the nature of malicious prosecution,? and,
therefore, did not accrue until the appellees? convictions were vacated. Because the
appellees sued within two years of their convictions being vacated, the district court
determined the appellees complied with the applicable statute of limitations.
The officers again moved for summary judgment, arguing they were entitled
to qualified immunity on the claims that could be defeated by showing probable cause
because they had probable cause to believe the appellees had stolen cars. The district
court disagreed, deciding the officers were not entitled to qualified immunity because
they did not have probable cause to suspect the appellees of committing the crime
with which they were charged?Schweer's murder. The officers timely appealed.
We have jurisdiction over this interlocutory appeal under 28 U.S.C. Â§ 1291 and
the collateral order doctrine. See Ashcroft v. Iqbal, 556 U.S. 662
, 129 S. Ct.
1937, 1945-46 (2009). Our review of the district court's denial of summary judgment
is de novo. See Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 602 (8th Cir.
2011). ??Summary judgment is appropriate [if] the record, viewed in the light most
favorable to [the appellees], demonstrates that there is no genuine issue of material
fact and [the officers are] entitled to judgment as a matter of law.?? Id. (quoting Myers
v. Lutsen Mtns. Corp., 587 F.3d 891, 893 (8th Cir. 2009)). ?Qualified immunity is
an affirmative defense for which the defendant carries the burden of proof. The
plaintiff[s], however, must demonstrate that the law is clearly established.? Sparr v.
Ward, 306 F.3d 589
, 593 (8th Cir. 2002).
[End Page 4]
It is unclear what seizure appellees rely upon for their Fourth Amendment
claims. If appellees assert their arrest was the relevant seizure, then their claim is for
false arrest. Or if appellees maintain the ?sum of post-arraignment deprivations? was
the relevant seizure, their claim is for malicious prosecution. See Nieves v.
McSweeney, 241 F.3d 46
, 54 (1st Cir. 2001). On appeal, the officers argue the
district court converted the appellees? claims into a malicious prosecution claim.2
Sufficient probable cause would defeat the appellees? Â§ 1983 claims based on
malicious prosecution and would not affect the appellees? remaining claims.3
If malicious prosecution is a constitutional violation at all, it probably arises
under the Fourth Amendment.4 See Albright v. Oliver, 510 U.S. 266
, 271, 275
The Supreme Court has used the terms ?prosecution without probable cause?
and ?malicious prosecution? referring to the same claim. See Albright v. Oliver, 510
, 271 & n.4 (1994) (plurality opinion). Although differences between
?prosecution without probable cause? and ?malicious prosecution? may exist, we will
use the parties? terminology?malicious prosecution.
The district court's determinations that a reasonable jury could find the
officers lacked probable cause to arrest the appellees for murder and violated the
appellees? substantive due process rights by manufacturing evidence against them are
the unappealed law of the case. See United States v. Bartsh, 69 F.3d 864
, 866 (8th
Cir. 1995) (?The law of the case doctrine prevents the relitigation of a settled issue
in a case and requires courts to adhere to decisions made in earlier proceedings in
order to ensure uniformity of decisions, protect the expectations of the parties, and
promote judicial economy.?). Therefore, the officers? motion for summary judgment
cannot affect the appellees? false arrest and substantive due process claims. See id.
We express no opinion on the appellees? remaining claims.
Though Albright may leave open the possibility of a procedural due process
claim, that claim is not available here because Iowa ?provides a tort remedy for
malicious prosecution; indeed, [Harrington and McGhee] brought . . . state-law
malicious prosecution claim[s], albeit after the statute of limitations had expired.
(That fact does not affect the adequacy of the remedy.[)]? Albright, 510 U.S. at 285
(Kennedy, J., concurring); see Parratt v. Taylor, 451 U.S. 527, 540-41 (holding that
[End Page 5]
(1994) (plurality opinion); see also id. at 275-76 (Scalia, J., concurring); id. at 276
(Ginsburg, J., concurring); id. at 281 (Kennedy, J., concurring); id. at 286-91 (Souter,
J., concurring). The dispositive issue on appeal is whether the officers are entitled to
qualified immunity on the appellees? Fourth Amendment claims based on malicious
The officers assert qualified immunity on those claims requiring the appellees
to show the officers acted without probable cause. Officials being sued under Â§ 1983
are entitled to qualified immunity for actions that did not violate a clearly established
constitutional right at the time of the alleged violation such that reasonable officials
acting in the officials? position would not have understood they were violating that
right. See Pearson v. Callahan, 555 U.S. 223
, 236 (2009) (holding a court may
analyze the two prongs of the Saucier v. Katz, 533 U.S. 194, 201-02 (2001), test?(1)
a constitutional right (2) that is clearly established?in any sequence); Anderson v.
Creighton, 483 U.S. 635
, 639 (1987).
The Supreme Court in its 1994 Albright opinions declined to decide whether
defendants have a Fourth Amendment right against malicious prosecution, but noted
that malicious prosecution does not violate the right to substantive due process
because ?pretrial deprivations [a]re better addressed under the Fourth Amendment
and not substantive due process.? Moran v. Clarke, 296 F.3d 638, 646-47 (8th Cir.
2002) (en banc) (citing Albright, 510 U.S. at 274-75 (plurality opinion)); see also
a state post-deprivation remedy satisfies procedural due process when the tortious
deprivation of protected interests results from ?a random and unauthorized act by a state employee?), overruled on other grounds by Daniel v. Williams, 474 U.S. 327
330-31 (1986); see also Whalen v. Connelly, 621 N.W.2d 681, 687-88 (Iowa 2000)
(stating the elements of the tort of malicious prosecution); Iowa Code Â§ 670.2
(transferred from Â§ 613A.2 in Code 1993) (waiving municipalities? sovereign
immunity in tort actions); Nelson v. Steiner, 262 N.W.2d 579, 582 (Iowa 1978)
(holding Iowa Code Â§ 613A.2 (now Â§ 670.2) does not prevent a tort action against
[End Page 6]
Albright, 510 U.S. at 283 (Kennedy, J., concurring). Moran distinguishes Albright
and holds the Fourth Amendment does not preclude recognizing a substantive due
process violation where law enforcement officers go beyond mere prosecution
without probable cause and fabricate evidence in order to ?falsely formulate a
pretense of probable cause.? Moran, 296 F.3d at 647. Our sister circuits have taken
a variety of approaches on the issue of whether or when malicious prosecution
violates the Fourth Amendment. See, e.g., Nieves, 241 F.3d at 53-54; Singer v.
Fulton Cnty. Sheriff, 63 F.3d 110
, 116-17 (2d Cir. 1995); Lambert v. Williams, 223
, 261 (4th Cir. 2000); Castellano v. Fragozo, 352 F.3d 939
, 945, 953 (5th
Cir. 2003); Newsome v. McCabe, 256 F.3d 747
, 751 (7th Cir. 2001); Pierce v.
Gilchrist, 359 F.3d 1279
, 1290-91 (10th Cir. 2004); Wood v. Kesler, 323 F.3d 872
881 (11th Cir. 2003). We need not enter this debate now.5
Assuming a Fourth Amendment right against malicious prosecution exists, such a right was not clearly established when the appellees were prosecuted in 1977
and 1978. In 1994, the Supreme Court described in Albright the ??embarrassing
diversity of judicial opinion? [on] the extent to which a claim of malicious
prosecution is actionable under Â§ 1983.? Albright, 510 U.S. at 270 & n.4 (quoting
Albright v. Oliver, 975 F.2d 343
, 345 (7th Cir. 1992)). The year before the conduct
underlying the appellees? suit occurred, our court stated, ?whether a malicious
prosecution infringes on protected constitutional rights is undecided.? Sartin v.
Comm?r of Pub. Safety of Minn., 535 F.2d 430
, 433 (8th Cir. 1976). Given this
precedent, reasonable officers, in the officers? position here, could not have known
in 1977 or 1978 that malicious prosecution violated appellees? Fourth Amendment
We also do not address the parties? arguments about whether probable cause
to suspect appellees of car theft was sufficient to defeat a claim based on prosecution
for murder without probable cause.
[End Page 7]
The officers are entitled to qualified immunity on any Fourth Amendment
malicious prosecution or prosecution without probable cause claims. The district
court erred in denying the officers? motion for summary judgment. We reverse and
remand for further proceedings on the appellees? remaining claims.
COLLOTON, Circuit Judge, dissenting.
This is an interlocutory appeal from an order of the district court denying a
motion for summary judgment based on qualified immunity. The motion raised a single argument?that the existence of probable cause to arrest the appellees for car
theft required the dismissal of all ?causes of action that are based upon a lack of
probable cause.? R. Doc. 154, at 1. The district court denied the motion. The
majority reverses the district court's decision based on a point of law that was not
raised or decided on the motion for summary judgment, ante, at 7, and then declines
to decide the question that was raised and decided. Ante, at 7 n.5. I disagree with this
procedure and would affirm the district court's order on the narrow issue presented.
The relevant procedural history can be stated briefly. In their complaints, the
appellees alleged multiple causes of action. Each plaintiff included a claim under 42
U.S.C. Â§ 1983 based on the Fourth Amendment. One plaintiff alleged that the
investigation and prosecution caused an ?unreasonable arrest and incarceration in
violation of the Fourth and Fourteenth Amendments.? No. 4:05-cv-00255, R. Doc.
1, at Â¶ 318. The other asserted a violation of ?his rights against unreasonable seizures
of his body guaranteed him by the Fourth Amendment.? No. 4:05-cv-00178, R. Doc.
1, at Â¶ 321.6
The court thinks it is unclear ?what seizure appellees rely upon for their Fourth
Amendment claims,? ante, at 4-5, but it should be clear from the complaints that they
rely on the arrest for murder (with legal process) and their continued detention
pending, during, and after trial. But cf. Wilson v. Spain, 209 F.3d 713
, 715-16 & n.2
[End Page 8]
In 2007, the appellants moved for judgment as a matter of law on the plaintiffs?
civil rights claims, including the Fourth Amendment claims. No. 4:05-cv-00255, R.
Doc. 100; No. 4:05-cv-00178, R. Doc. 90. The district court ruled that the appellants
were not entitled to qualified immunity, McGhee v. Pottawattamie Cnty., 475 F.
Supp. 2d 862, 910 (S.D. Iowa 2007); R. Doc. 174, at 79, and the appellants did not
appeal. In 2010, the appellants moved for judgment on the pleadings on the Fourth
Amendment claims based on the statute of limitations. They argued that if the Fourth
Amendment claims were in the nature of malicious prosecution, such that they were
not barred by the two-year statute of limitations, see Wallace v. Kato, 549 U.S. 384
388-392 (2007), then the appellants were entitled to qualified immunity because the
appellees? alleged rights were not clearly established. R. Doc. 151-2, at 6-7. The
district court rejected the argument and denied the motion in an order dated October
8, 2010. R. Doc. 224, at 11 & n.5. The appellants did not appeal that order.
The only order from which the appellants appealed is the district court's order
of October 18, 2010, denying a motion for summary judgment. R. Doc. 237; see
Harrington v. Wilber, 743 F. Supp. 2d 1006 (S.D. Iowa 2010); R. Doc. 225. That
motion relied only on the alleged existence of probable cause to arrest for car theft
as a reason to dismiss appellees? Fourth Amendment claims. R. Doc. 154-3, at 5-9.7
(8th Cir. 2000) (discussing when the Fourth Amendment might apply ?[b]etween
arrest and sentencing?); Torres v. McLaughlin, 163 F.3d 169
, 174-75 (3d Cir. 1998)
(holding that ?post-conviction incarceration cannot be a seizure within the meaning
of the Fourth Amendment?). The court's reference to the possibility of a seizure
arising from the ?sum of post-arraignment deprivations,? ante, at 5, is inapposite,
because the appellees were never released between their arrest and trial. Cf. Albright
v. Oliver, 510 U.S. 266
, 278-79 (1994) (Ginsburg, J., concurring); Jefferson v. City
of Omaha Police Dep?t, 335 F.3d 804
, 806 (8th Cir. 2003); Technical Ordnance, Inc.,
v. United States, 244 F.3d 641
, 651 (8th Cir. 2001).
The motion did not specify, by reference to the appellees? complaints, which
particular causes of action the motion sought to defeat. On appeal, the appellants
appear to focus on the Fourth Amendment claims pleaded by the appellees.
[End Page 9]
When the appellees moved to dismiss this appeal based on the law of the case, the
appellants responded that ?they have never before asserted that they had probable
cause to suspect Plaintiffs of car theft and, thus, are entitled to qualified immunity on
Plaintiffs claims requiring a prima facie showing of a lack of probable cause.? Resp.
to Mot. to Dismiss, Dec. 3, 2010, at 8 (emphasis added). The narrow scope of this
appeal was thus seemingly confirmed.
The court acknowledges that the motion for summary judgment underlying this
appeal sought dismissal of ?claims that could be defeated by showing probable cause
because they had probable cause to believe the appellees had stolen cars.? Ante, at
4. The court then switches gears, however, and addresses an entirely different issue
on appeal?whether ?a Fourth Amendment right against malicious prosecution? was
clearly established in 1977 and 1978. I see no sound justification for expanding the scope of this appeal to consider other qualified-immunity issues that the appellants
declined to raise on appeal either in 2007 or in response to the district court's order
of October 8, 2010. The appellants can raise those matters at trial and on appeal after
judgment, see Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011), but they cannot use an
order on a different qualified-immunity motion to revive a potential appeal that was
not taken in the proper course.
This is not to say that I would disagree with the court on the merits of the legal
issue that it decides, for the court's conclusion draws support from Albright, 510 U.S.
at 270 n.4, and Sartin v. Commissioner of Public Safety, 535 F.2d 430
, 433 (8th Cir.
1976), as well as decisions of other circuits in the wake of Albright. See Rodriguez-
Mateo v. Fuentes-Agostini, 66 F. App?x 212, 213-14 (1st Cir. 2003); Osborne v. Rose,
133 F.3d 916, 1998 WL 17044, at *4-5 (4th Cir. 1998) (unpublished table decision).
The court does mistakenly characterize one aspect of the appellees? Fourth
Amendment claims as a ?false arrest? claim. Ante, at 5 & n.3. Because the appellees
were arrested with legal process, their Fourth Amendment claims are analogous to
claims of malicious prosecution, not false arrest. Wallace, 549 U.S. at 389-90; Heck
[End Page 10]
v. Humphrey, 512 U.S. 477
, 484 (1994); Wilkins v. DeReyes, 528 F.3d 790
(10th Cir. 2008); Nieves v. McSweeney, 241 F.3d 46
, 54 (1st Cir. 2001); Singer v.
Fulton Cnty. Sheriff, 63 F.3d 110
, 117 (2d Cir. 1995). We know that one aspect of
a Fourth Amendment malicious prosecution claim?i.e., a claim alleging that an
officer caused an unconstitutional arrest with warrant by presenting a judge with a
complaint and supporting affidavit that obviously failed to establish probable
cause?was clearly established as of 1986, see Malley v. Briggs, 475 U.S. 335
(1986), but whether such a right was clearly established in 1977 is debatable.
Compare Sartin, 535 F.2d at 433, and Smith v. Gonzales, 670 F.2d 522
, 526 (5th Cir.
1982), with Jones v. Perrigan, 459 F.2d 81
, 82-83 (6th Cir. 1972). Although the
court's conclusion declares broadly that ?the officers are entitled to qualified
immunity on any Fourth Amendment malicious prosecution or prosecution without
probable cause claims,? ante, at 8 (emphasis added), it appears that the Malley-type
claim remains in the case, see 475 F. Supp. 2d at 910, and that a qualified-immunity
defense may be renewed by the appellants at trial. Ante, at 5 n.3, 7 n.5.
As for the issue actually raised and decided in the district court, I would affirm,
but for reasons different than those given by the district court. There are potentially
conflicting signals in the case law about whether the existence of probable cause to
arrest the appellees for car theft would defeat some or all of appellees? Fourth
Amendment claims. Compare Johnson v. Knorr, 477 F.3d 75
, 83-84 (3d Cir. 2007),
and Posr v. Doherty, 944 F.2d 91
, 100 (2d Cir. 1991), with Brooks v. City of Aurora,
653 F.3d 478, 485 (7th Cir. 2011). I would not reach that issue, because there are
genuine issues of fact about whether the appellants had probable cause to arrest the
appellees for car theft. The record includes police reports from 1977 that, according
to the appellants, established the requisite probable cause. But probable cause must
be based on facts that are known to the arresting officer, Devenpeck v. Alford, 543
, 152 (2004), or known collectively by investigating officers who are in
?some degree of communication.? United States v. Frasher, 632 F.3d 450, 453 (8th
Cir. 2011). The record on this motion includes no affidavits from the appellant
[End Page 11]
officers establishing what they knew and when they knew it?both concerning
evidence that inculpated the appellees in a car theft ring and evidence that detracted
from a showing of probable cause?or establishing the degree of communication
between the appellants and other officers who authored reports that appear in the
record. Because these facts must be determined before the legal issues can be
resolved, I would affirm the district court's order on the narrow issue presented.
[End Page 12]