* The HONORABLE RICHARD H. KYLE, United States District Judge for the District of Minnesota, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-2040

___________ Terrance Morris; Ricardo Morris; * Rosalind Morris, *
* Plaintiffs - Appellants, * Appeal from the United States * District Court for the v. * Western District of Missouri
* Jarrett Lanpher; Robert Schweitzer, *
* Defendants - Appellees. *

___________ Submitted: December 11, 2008 Filed: April 24, 2009

___________ Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE, * District Judge.

___________ LOKEN, Chief Judge. At 11 p.m. on July 28, 2003, Richard Schi ele was shot in his Kansas City home by two assailants. Schiele identified Ricardo Morris as one of the assailants to Police Officer Jarrett Lanpher. Based on this iden tification, and some corroboration by other witnesses, Lanpher obtained a warrant to search the nearby home where brothers Terrance and Ricardo Morris lived with thei r mother, Rosalind. The warrant search1 The HONORABLE FERNANDO J. GAITAN, JR ., Chief Judge of the United States District for the Western District of Missouri.
-2- yielded no evidence, and the brothers wereabsolved of any role in the shooting. Another officer kicked Terrance in the face while executing the warrant.

Rosalind and her sons filed this § 1983 complaint against the Kansas City Board of Police Commissioners and five police officers. The district court 1 granted summary judgment dismissing the Fourth Amendment claim against Lanpher and his supervisor, Sergeant Robert Sc hweitzer. Morris v. Lanpher , 2007 WL 869498, at *5 (W.D. Mo. Mar. 20, 2007). One year later, a jury found in favor of the other officer on the excessive force claims . The Morrises appeal only the dismissal of the Fourth Amendment claim. They contend that the affidavit Lanpher submitted in obtaining the search warrant contained deliberate falsehoods and recklessly disregarded the truth. Reviewing the grant of summary judgment de novo , we affirm.

I.

After the shooting, Schiele did not iden tify his assailants be fore being taken to a hospital. Lanpher interviewe d Schiele at the hospital the next evening. Schiele said he lived with a man named Jason, who was helping him remodel houses. Schiele described the assailants as “two black male s.” Lanpher’s interview report then states:

The victim was asked if he knew anyone who would have done this he immediately thought that Jason had so mething to do with the attack and that the two dudes he hangs with w[ ]ere the one[]s who did the actual attack. He stated he knew the two dudes went by “Dink” and “Mont.” He stated he did not know them pers onally but knew Jason went to their house all the time around the corner. Th e victim was asked if he would be able to identify the subjects who attacked him and he stated, “Yes.”

Ricardo and Terrance Morris have been known since birth as “Dink” and “Mont.”-3- Some three hours later, Lanpher inte rviewed Schiele’s roommate, Jason Lancaster, then in custody on other charges. Lancaster denied any part in the shooting and said he visited Schiele in the hospital ear lier that day. Schiele told Lancaster “two black dudes shot him, one of them was st ocky and the other a short dude.” Schiele said “it might have been the two dudes w ho live in the 2nd house on the north side of 62nd Street,” who Lancaster knew only as “Di nk” and “Mont.” Lancaster said he went to their house before visiting Schiele thatday, as neighbors ha d reported, but no one was home. Lanpher’s interview report states:

Lancaster was then shown a photo Line -up consisting of six black males all similar in appearance, which included a photograph of Ricardo Morris . . . in the number six position. Morris resides at 1318 E. 62nd Street, which was identified by neighbor s as the residence that Lancaster had visited on his ATV earlier in the day. Lancaster identified Morris as the subject he knew as “Dink.”

The next morning, Lanpher visited Schiele at the hospital and showed him the same six-photo line-up. Lanpher’s report states, “The victim viewed the line-up and identified Morris as one of the suspect[]s who shot him.”

That afternoon, Lanpher prepared an affi davit applying for a warrant to search 1318 E. 62nd Street for “Clothing, handguns, ri fles, ammunition, spent shell casings, trace evidence, flashlights.” After reciting the victim’s description of the shooting, and what neighbors reported hearing and s eeing at the time, the affidavit recited:

Neighbors identified 1318 E. 62nd Street as the house that the victim’s friend hung out with. A computer check was conducted and a photo line-up was shown to the victim, which included a resident of 1318 E. 62nd Street. The victim identified this subject as the one he wrestled with and shot him. The subject who lives with the victim also identified the subject.-4- A Jackson County judge issued the warrant . Lanpher was present when a Tactical Entry Team executed the warrant. Nothing was seized.

II.

Qualified immunity protects public offi cials from damage actions if their conduct did not violate clearly established rights of which a reasonable person would have known. Harl ow v. Fitzgerald , 457 U.S. 800, 818 (1982). A police officer in applying for a search warrant is entitled to qualified immunity from a § 1983 Fourth Amendment damage claim if his conduct wa s objectively reasonable. “Only where the warrant application is so lacking in i ndicia of probable cause as to render official belief in its existence unreasonable . . . will th e shield of immunity be lost.” Malley v. Briggs , 475 U.S. 335, 344-45 (1986). Officer Lanphe r satisfies that standard in this case. His affidavit recited that he h eard Schiele identify “Dink” and “Mont” as possible assailants, gathered evidence id entifying Dink and Mont and linking them to Lancaster and to 1318 E. 62nd Street, and saw both Schiele and Lancaster identify Ricardo Morris as “Dink,” one of the assailants, from a photo line-up. The affidavit clearly was not “lacking in indi cia of probable cause.” See Tangwall v. Stuckey , 135 F.3d 510, 519 (7th Cir. 1998).

The Morrises argue that Lanpher is not entitled to qualified immunity for a different reason -- because hi s warrant application “delib erately omitted material and exculpatory information and included falsehoods.” The principle is sound. “A warrant based upon an affidavit containi ng ‘deliberate falsehood’ or ‘reckless disregard for the truth’ violates the Fourth Amendment” and subjects the police officer to § 1983 liability. Bagby v. Brondhaver , 98 F.3d 1096, 1098 (8th Cir. 1996), quoting Franks v. Delaware , 438 U.S. 154, 171 (1978). Truthful in this context means that the information put forth is “believed or appropriately accepted by the affiant as true.” Franks , 438 U.S. at 165.-5- The district court rejected this conten tion based upon its review of the extensive summary judgment record. After summarizing the many omissions and falsehoods asserted by the Morrises, the court explained:

The Court finds, however, that most of the alleged omissions and falsehoods . . . are eith er immaterial, not supported by the record, or merely conclusions or attorney argum ent. Whatever the victim’s level of knowledge regarding the Morris fa mily, the victim identified the suspects as “Dink” and “Mont” -- the undisputed nicknames of Plaintiffs Ricardo and Terrance Morris. The materials found in the victim’s home do not automatically cast doubt as to the victim’s identification of suspects. Plaintiffs’ claims that Defendant Lanpher made false claims regarding what neighbors told him are merely conclusions that are unsupported by any facts in the record. . . . Furthermore, the omissions of the victim’s roommate’s activities and statements are largely immaterial in that the roommate was also a suspect in the shooting, and the roommate’s statements do not prevent suspicion of the Morris brothers, given the victim’s iden tification of them. 2007 WL 869498, at *5.

After careful review of the record, we ag ree with the district court’s analysis. The Morrises bore “the burden of proving the in tentional or reckless inclusion of false statements in a warrant affida vit.” United States v. Ozar , 50 F.3d 1440, 1443 (8th Cir. 1995). When Lanpher made a properly s upported motion for summary judgment on the ground of qualified immunity, they “may not respond simply with general attacks upon the defendant’s credibility, but rathermust identify affirmative evidence from which a jury could find that the plaintiff has carried his or he r burden of proving the pertinent motive.” Crawford-El v. Britton , 523 U.S. 574, 600 (1998). The Morrises presented no evidence Lanpher had a personal st ake in the matter that might cause him to act other than as an impartial criminal investigator. Compare Moody v. St. Charles County , 23 F.3d 1410 (8th Cir. 1994). They offered no specific, nonconclusory evidence that Lanpher believed his affidav it was false, or recklessly misconstrued Schiele’s identification. Significantly, they presented no affidavit or deposition-6- testimony by victim Schiele or by roommateLancaster contradicting their photo lineup identifications. Compare Hunter v. Namanny , 219 F.3d 825 (8th Cir. 2000). Indeed, that the recitals in the warrantaffidavit aligned closely with Lanpher’s contemporaneous interview reports is strong evidence that Lanpher believed that Schiele had identified one of his attackers, or at least accepted the identification as true for purposes of further investigation. While we construe disputed facts in the non-moving parties’ favor, we may not infe r bad motive absent even a scintilla of material fact supporting that inference.

For these reasons, we conclude that the Morrises failed to submit probative evidence that Lanpher’s warrant affidavit c ontained deliberate falsehoods or a reckless disregard of the truth, and that an affi davit “supplemented by the omitted information, would not have been sufficient to support a finding of probable cause.” Riehm v. Engelking , 538 F.3d 952, 966 (8th Cir. 2008); seeBagby , 98 F.3d at 1099 (“qualified immunity is appropriate if defendant has been accused of submitting a recklessly false affidavit and if a corrected affidavit woul d still provide probable cause to arrest or search”). Accordingly, summary judgment was proper.

Without an underlying constitutional violation by Lanpher, the Morrises’ § 1983 claim against Schweitzer for failur e to supervise necessarily fails. See Brockinton v. City of Sherwood , 503 F.3d 667, 673 (8th Cir. 2007).

The judgment of the district court is affirmed.

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