## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1279

___________ Marsha Ann Mettler, individually and * as trustee for the heirs of Shawn * Michael Mettler, * * Appellee, * * v. * Appeals from the United States * District Court for the Edward M. Whitledge, Thomas * District of Minnesota. Haltiner, * * Appellants. * * Ramsey County, * * Defendant. *

_____________ No. 98-1280

_____________ Marsha Ann Mettler, individually and * as trustee for the heirs of Shawn * Michael Mettler, * * Appellant, * * v. * * Edward M. Whitledge, Thomas *The Honorable Rodney W. Sippel, United States District Judge for the Eastern 1 District of Missouri, sitting by designation. -2- Haltiner, Ramsey County * * Appellees. * *

___________ Submitted: November 18, 1998 Filed: January 25, 1999

___________ Before BOWMAN, Chief Judge, LOKEN, Circuit Judge, an d SIPPEL, District Judge. 1

___________ BOWMAN, Chief Judge.
After her son Shawn Michael Mettler was shot a nd killed during a confrontation with R amsey County Sheriff's deputies, Marsha Ann Mettler sued Ramsey County , Ramsey County Sheriff Patricia Moen, and RamseyCounty Sheriff's Deputies Thomas Haltiner and Edward M. Whitledge for alleged violations of 42 U.S.C. §§ 1983 an d 1985. The District Court granted Ramsey County sum mary judgment on Ms. Mettler's claim alleging municipal liability under M onell v. Department of Soc. Servs. , 436 U.S. 658, 694 ( 1978), and all defendants summary judgment on Ms. Mettler's § 198 5
cons piracy claim. The District Court denied Deputies Haltiner and Whitledg e summary judgment on Ms. Mettler's claim they had viol ated § 1983 by using excessive force when confronting Shawn Mettler. Deputies Haltiner and Whitledge appeal , claiming qualified immunity entitles them to summary judgment. Ms. Mettler cross

appeal s the District Court's grant of summary judgment to Ramsey County on th e Monell claim and to all defendants on the conspiracy claim, a final order pursuant to Fe d. R. Civ. P. 54(b) having been entered with respect to these claims. We affirm in part, reverse in part, and remand the case with instructions.-3- I.

Wh en reviewing a grant or denial of summary judgment, this Court consider s the evidence in the light most favorable to the nonmoving party and draws al l
re asonable inferences in that party's favor. See Barker v. Ceridian Corp. , 122 F.3 d 628, 632 (8th Cir. 1997). The parties have vigorously disputed some of the facts o f this c ase. Accordingly, where there are factual disputes, we base the followin g summary on accounts provided by Ms. Mettler, the nonmoving party.
At approximately 1 a.m. on January 22, 1994, Ramsey County Sheri ff's Deputies Thomas Haltin er and Edward Whitledge, accompanied by Whitledge's canine partner Bud, r esponded in separate patrol cars to a 911 call reporting that someone ha d dischargeda firearm at the Montreal Courts apartment complex in Little Canada , Minne sota. Unable to locate the person responsible for discharging the firearm b y patrolling the area in their vehicles, the tw o deputies began searching Montreal Court's
rows of single-vehicle garage stalls on foot. Bud remained in Deputy Whitledge' s patrol car.
While the deputies were searching one row of garage stalls, Deput y Haltiner saw
a person ent er a stall about fifty feet away in another row. Haltiner later said h e noticed this person was carrying a "long gun" in his left hand. See Joint Appendi x (J.A.) at 458 (Haltiner Dep.). Haltiner told Whitledge what he had seen, and the two deput ies walked to the row where Haltiner had seen the suspect. As they passe d Whitledge's patrol car, Whitledge summoned Bud to join them.
The two deputies, accompanied by Bud, inspected the row of ga rage stalls. They found one garage do or unlocked and open a few inches. The deputies raised this door further and saw a Dodge Stealth parked inside w ith its nose pointing toward the far end of the twenty-foot-long garage . Standing outside or slightly inside the garage, Haltiner and Whitledge identified themselves as sher iff's deputies and ordered anyone inside the-4-

stall to come out. No one responded, so Deputy Whitledge ordered Bud to inspect the stall' s interior. Bud entered the garage, and as he approached the far end of the stall-- near the nose of the Stealth--he began to growl.

Shawn Mettler, carrying a pump-action, "sawed-off" shotgun, was hiding in the garage, either crouched down or prone near the nose of the Stealth. When Bu d growled, S hawn fired one shot from his shotgun. This shot struck and killed Bud

. Deputies Haltiner and Whitledge then instantly fired their semiautomatic duty pistols. The y fired thirty-two shots, emptying the pistols' magazines. Approximately fourteen of the shots struck Shawn, and one bullet--the sequence of shots is unknown--kille d him.
After the shooting, both dep uties said that, before they began shooting, they had
seen Sha wn pointing his gun at Deputy Whitledge. Both deputies also reported tha t Shawn had f

ired multiple shots at them. However, evidence uncovered after th e shooting proved that Shawn had fired only one shot, the s hot that struck and killed Bud. Shawn's shot gun was found lying on the garage floor, under his body, with the spen t sh ell from the shot that killed Bud still in the chamber and some undischarged shell s loaded in the shotgun's magazine.
The Ramsey County Sheriff's Department ordered an internal investigation of the shooting, but problems hampered the resulting probe. No one in the Sheriff' s Dep artment

was qualified to conduct ballistics or trajectory analysis, and such test s were not conducted until this litigation commenced more than two years after th e shooti ng. Sheriff's Department investigators also did not record the locations of th e shell casings after the shooting, nor did they chart the bullet holes in the wall of th e garage. Furthermore, Sheriff's Department investigators have voiced some confusion regarding w ho was in charge of the investigation, and the qualifications of that lea d investigator.-5-

Many factual questions re main regarding the January 22 shooting. The Sheriff's Depa rtment

could not determine which deputy's shots struck Shawn or which deputy fired the fatal shot. The Sheriff's Department also could not determine whethe r Deputies Haltiner and Whitledge were inside or outside the garage when they started shooting, or how long the shooting lasted. (Most estimates indicate the shooting lasted less th an ten seconds.) A shooting review board convened, reviewed the January 2 2 shooting, fo und the deputies were justified in returning fire after Shawn shot Bud, and cleared them of any wrongdoing.

On April 2 , 1996, Ms. Mettler filed suit against Ramsey County, and, in thei r individu al capacities, Sheriff Moen and Deputies Haltiner and Whitledge, alleging the defen dants were liable under 42 U.S.C. §§ 1983 and 1985. Count I of Ms. Mettler' s four-co unt

complaint alleged that Deputies Whitledge and Haltiner had violate d Shawn's constitutional rights by using excessive force during the January 2 2 confrontation, and that this violation resulted in Shawn's death. Count II alleged tha t Ramsey C ounty violated Shawn's constitutional rights by training its deputie s neglig ently and by showing deliberate indifference to the deputies' custom, pattern, or practice of using excessi ve force. Count III alleged that Sheriff Moen had supervisory liability for failing to cor

rect the Sheriff's Department's pattern of providing inadequate training and its deputies' pattern of using excessive force. Count IV alleged that all the de fendants had conspired to violate Shawn's constitutional rights by permitting o r encouragi ng the use of excessive force, conducting an inadequate investigation, an d concealing evidence of wrongdoing. Ms. Mettler later recharacterized Count IV as a claim that the defendants had conspired to conceal eviden ce from her, thus violating her constitutional rights by denying her the opportunity to pursue her §§ 1983 and 198 5 claims in f

air litigation. See J.A. at 272 (Plaintiff's Memorandum in Opposition t o Defendants' Motion for Summary Judgment at 32 (Aug. 5, 1997)).The r ecord does not indicate whether the parties stipulated to dismissal o f 2 Count I V as it pertains to Ramsey County Sheriff Moen, but Sheriff Moen did no t move for summary judgment on this count and is not a party to this appeal. -6- The parties stipulated to the dismissal of Count III. The defendants then moved for summary judgment on Counts I, II, and IV. The District Court granted summary 2 judgment to Ramsey County on Count II a nd to all defendants on Count IV. However, th e District Court denied defendants Haltiner and Whitledge summary judgment o n Count I , despite the defendants' argument that, because they were police officers , quali fied immunity protected them from liability on Ms. Mettler's § 1983 claim

. Deputies Haltiner and Whitledge filed an interlocutory appeal of the District Court' s denial o f their motion for summary judgment on Count I on qualified-immunity grounds. The District Court then made its order granting sum mary judgment to Ramsey County on Count II and to a ll defendants on Count IV final pursuant to Fed. R. Civ. P. 54(b), and Ms. Mettle r cross-appealed the District Court's grant of summary judgment on Counts II and IV.

II.

Before we resolve the iss ues raised in this appeal and cross-appeal, we pause to explain the limite d jurisdiction we have over them. This Court has jurisdiction to hear Haltinerand Whitledge's interlocutory appeals because, under the collateral orde r doctrine , a district court's denial of a claim of qualified immunity may be appeale d immedia tely. See Mitchell v. Forsyth , 472 U.S. 511, 525, 530 (1985); Murphy v

. Arka nsas , 127 F.3d 750, 754 (8th Cir. 1997). However, pursuant to the Suprem e Court' s decisions in Johnson v. Jones , 515 U.S. 304 (1995), and Behrens v. Pelletier , 516 U.S. 299 (1996), this Court's jurisdiction on interlocutory appeal is limited to the resolution of the issue of qualified immunity. See Collins v. Bellinghausen , 153 F.3d 591, 595 (8th Cir. 1998). We may not consider sum mary judgment on the merits of the case at this interlocutory stage. See id. This Court also has jurisdiction to resolve the-7-

issues raised in Ms . Mettler's cross-appeal because the District Court entered its order pursuant to Federal Rule of Civil Procedure 54(b), thus making the order final for the purpose of appeal under 18 U.S.C. § 1291. See Kocher v. Dow Chem. Co. , 132 F.3d 1225, 1228 (8th Cir. 1997); see also Fed. R. Civ. P. 54(b). Our review of summar y judgm ent issues is de novo. See Elder v. Holloway , 510 U.S. 510, 516 (1994); Liebe v. Norton , 157 F.3d 574, 576 (8th Cir. 1998).

III.
Dep uties Haltiner and Whitledge claim the District Court should have grante d them summary judgment on Count I, Ms. Mettler's excessive force claim, becaus e qualified immunity protects them from liability. We conclude the deputies are entitled to summary judgment and reverse the District Court.
To withstand a claim of qualified immunity at the summary judgment stage,
a plaintiff must assert a viola tion of a constitutional or statutory right; that right must have been clearly established at the time of the violation; an d give n the facts most favorable to the plaintiff, there must be no genuin e issues of material fact as to whether a reasonable official would hav e known that the alleged action indeed violated that right.

Lieb e , 157 F.3d at 577 (internal citation omitted); see also Harlow v. Fitzgerald , 45 7 U.S. 80 0, 818-19 (1982) (saying that government officials have qualified immunity fro m civil liability under § 1983 "insofar as their conduct does not violate clearl y establis hed statutory or constitutional rights of which a reasonable person would have known").

Ms. Me ttler has failed to show that Deputies Whitledge and Haltiner violated a constitutional right "clearly established at the time of the violation." The Fourth-8-

Amendment protects citizens from being seized through excessive force by la w enforcem ent

officers. See Graham v. Connor , 490 U.S. 386, 395 (1989); se e also Tennessee v. Garner , 471 U.S. 1, 9 (1985) (applying Fourth Amendment analysis to an apprehension through the use of deadly fo rce); Ludwig v. Anderson , 54 F.3d 465, 470 (8th Cir. 1995) (s ame). But this generalized right to be free from an unreasonable
use of exces sive force during a police seizure does not clearly establish a right fo r purposes of a qualified-immunity analysis. See Anderson v. Creighton , 483 U.S. 635, 639 (198 7) (rejecting that plaintiffs may rely on broad, generalized rights such as "the right to due process of law" to show a clearly established right). Rather, Ms. Mettler must show the right was clearly established in a particularized s ense relevant to the case at hand. See id. at 640.
Ms. Mettler has not shown a clearly established rig ht in a particularized, relevant
sense. No federal court has held that the Constitution forbids police officers, afte r being fir ed upon by a suspect, from returning fire. The facts of this case, even whe n vie wed in the light most favorable to Ms. Mettler, reveal that Deputies Haltiner an d Whitled ge fired at Shawn only after Shawn had first shot and killed Bud, the polic e dog. The two deputies were standing scarcely twenty feet from the shooter, facing a suspect with a high-powered weapon who was hiding in a darkened garage, wa s conceale d by a parked car, and had exhibited a willingness to resist an exercise o f police authority through the use of deadly force. Given these circumstances, we fin d
no "clearly established" constitutional right that Deputies Haltiner and Whitledg e violated

. Therefore, Deputies Haltiner and Whitledge are protected by qualifie d immunity from§ 1983 liability for their role in the shooting death of Shawn Michae l Mettler.

Ms. Mettler

argues that the facts of this case are too uncertain for this Court to grant summary judgment. We cannot resolve at the summary judgment stage th e factual disputes raised in this case, see Collins , 153 F.3d at 595, but we are no t required to let bare allegations, unsupported by the record, prevent us from finding that-9-

Ms. Mettle r has failed to show a clearly established right in the particularize d circumstances. See Otey v. Marshall , 121 F.3d 1150, 1151 n.1 (8th Cir. 1997). For examp le, Ms. Mettler suggests that, in retribution for Shawn's killing Bud, Deput y Whitledge might have shot and killed Shawn while Shawn was lying on the floo r wounded after a break in the shooting. See Brief of Appellee at 14-15. However, no reasonable reading of the record supp orts this speculation. Statements from numerous citizens, consistent with the reports of the two deputies, indicate all the gunshots were fired together in a short period of time. There is no support in the record for th e suggestion that Deputy Whitledge shot and killed Me ttler after a hiatus in the shooting.

Ms. Mett ler also argues that the deputies should be held liable because the y faile d to follow Sheriff's Department guidelines, and that their actions might hav e he lpedprecipitate the confrontation. In particular, Ms. Mettler and her expert witnesses claim the two deputies should have waited for additional backup, barricaded Shawn in the garage stall with a patrol car, or engaged in other protective actions

. Most of the guidelines cited are for the protection of the sher iff's deputies, not of armed suspects, an d in any event the breach of such guidelines is not dispositive to ou r de terminationof whether the deputies violated a clearly established constitutiona l right. See Edwards v. Baer , 863 F.2d 606, 608 (8th Cir. 1 989) ("While the unfortunate incident that gave rise to this lawsuit would not have occurred if [the defendant police office r] had followed the [d]epartment's guidelines, police department guidelines d o not create a constitutional right.").
Finally, Ms. Mettler argues that Deputies Haltiner and Whitledge violate d Sha wn's constitutional rights prior to the shooting. In particular, Ms. Mettler argue s the depu ties unreasonably "seized" Shawn, either by trapping him in the garage or by sendin g the police dog Bud to locate him. Police "seize" a person by engaging i n conduct that would make a reasonable person feel he was not free to leave. See United State s v. Bryson , 110 F.3d 575, 579 (8th Cir. 1997); United States v. Dixon , 51 F.3d 1376, 1379 (8th Cir. 1995). Other courts have recog nized dispatching a police dog "to-10-

find, bite, and detain" a suspect may constitute a seizure. See , e.g. , Vathekan v. Prince George's County , 154 F.3d 173, 178-79 (4th Cir. 1998) (stati ng that seizure by a police dog can constitute an excess ive force claim under the Fourth Amendment). However, in order for police actions to constitute a seizure, the police mus t make physical contact with the su spect, or the suspect must acquiesce to an assertion of police authority

. See Bryson , 110 F.3d at 579; Ludwig , 54 F.3d at 471. There is no evidence in th e
recor d to support a finding that Shawn acquiesced to an assertion of police authority,
or that phy sical contact occurred before Shawn shot Bud. Therefore, no seizur e
occur red before the shooting began. That being so, we need not address whether the deputies' conduct constituted an unreasonable seizure.

IV. Ms. Mett ler next contests the District Court's grant of summary judgment t o Ramsey County on Co unt II. In Count II, Ms. Mettler alleged that the County should be liable under Monell for showing deliberate indifference to the Sheriff' s Department's custom, pattern, or practice of using excessive or deadly force.

Under 42 U.S.C. § 1983, a municipality may not be held vicariously liable for the uncons titutional acts of employees. See Monell , 436 U.S. at 694. However, a
mun icipality may be held liable for the unconstitutional acts of its officials o r employees when those acts implement or execute an unconstitutional municipal policy
or c ustom. See id. ; see also Doe v. Washington County , 150 F.3d 920, 922 (8th Cir. 1998 ). For a municipality to be liable, a plaintiff must prove that a municipal polic y
or custom was the "moving force [behind] the constitutional violation." Monell , 436 U.S. at 694; see also Bo ard of Comm'rs v. Brown , 520 U.S. 397, 400 (1997) (holding tha t only "deliberate" action by a municipality can meet the "moving force " requirement).

Contrary to indications in Ms. Mettler's brief, this Court does not use the terms "policy" and "custom" interchangeably when conducting a Monell analysis. Rather, a-11-

"pol icy" is an official policy, a deliberate choice of a guiding principle or procedur e made by the municipal official who has final authority regarding such matters

. See Ware v. Jackson C ounty , 150 F.3d 873, 880 (8th Cir. 1998) (citing Jane Doe A v. Special Sch. Dist. , 901 F.2d 642, 645 (8th Cir. 1990)). Ms. Mettler has not identified any official policy that arguably played a role in her son's death.

Therefore , we must determine whether Ms. Mettler has come forward with evidence from which a jury coul d reasonably find the existence of a relevant municipal
cus tom. According to Ware , Ms. Mettler must satisfy three requirements to prove a municipal custom exists. These requirements are:
(1) The existence of a continuing, widespread, persistent pattern o f unconstitutional misconduct by the governmental entity's employees; (2) Deliberate indifference to or t acit authorization of such conduct by the governm ental entity's policymaking officials after notice to the official s of that misconduct; and (3) Th[e] plaintiff['s] injur[y] b y acts pursuant to the governmental entity's custom, i. e. , [proof] that the custom was the moving force behind th e constitutional violation.

Id. (quoting Jane Doe A , 901 F.2d at 646) (alterations in the original).

Ms. Mettle r offered two types of evidence to prove the existence of a "contin uing, widespread, persistent pattern of unconstitutional conduct" by Ramse y Coun ty employees. First, Ms. Mettler produced evidence that citizens' complaint s were filed against Deputies Whitledge and Haltiner before their confrontation with her
son Shawn. Second, Ms. Mettler offered evidence concerning problems in the postincident investigation into the January 22, 1994, shooting. After reviewing this-12-

evidence, t his Court concludes Ms. Mettler has failed to create a genuine issue o f material fact regarding the existence of a municipal custom.

Ms. Mettler has produced evidence that fifteen citizens' complaints were file d against Deputies Haltiner a nd Whitledge prior to the January 22 shooting. See J.A. at 410-11. Sev en complaints, filed between September 1987 and 1993, accuse Haltiner of excessive or unnecessary force, but none of these complaints were sustained after de partmental investigation, even in part. See id. at 410. Meanwhile, only tw o complaints against Whitledge, tho se filed in August 1982 and May 1986, accused him of excessive or unnecessa

ry force, and only the May 1986 complaint was sustained in part. See id. at 410. Ms. Mettler has produced no evidence regarding the factua l background of

these previous complaints, nor has she shown that the incidents giving rise to these complaints bear any factual similarity to the January 22, 1994 , confrontation with her son. Ms. Mettler also has failed to produce evidence that th e investigations into these complaints, or investigations into any complaints filed against other Ramsey County Sheriff's deputies, were inadequate.

This Court has hel d municipalities liable under Monell when the plaintiffs have produced evidence of prior complaints suff icient to demonstrate that the municipalities and their o fficials ignored police misconduct. See , e.g. , Parrish v. Luckie , 963 F.2 d 201, 204-05 (8th Cir. 1992) (reviewing the "detailed and compelling" evidence th e plaintiff presented that the defen dant police department avoided, ignored, and covered up co mplaints of physical and sexual misconduct by officers); Harris v. City o f Pag edale , 821 F.2d 499, 501-06 (8th Cir.) (finding a plaintiff had proven a municipal custom t hrough the presentation of detailed evidence regarding the particular polic e officer's previous misconduct, and the city's failure to investigate or punish tha t conduct), cert. denied , 484 U.S. 986 (1987). However, when the pla intiff has not made such a sh owing, the mere existence of previous citizens' complaints does not suffic e to show a municipal custom of permitting or encouraging excessive force. See Rogers v. City of Little Rock , 152 F.3d 790, 799 (8th Cir. 1998).-13-

Shortcom ings in the investigation of the January 22 shooting also do no t demonstrate a "continuing, widespread, or persistent pa ttern of misconduct." Evidence that a police department has failed to investigate previous incidents similar to th e incident in question may support a finding that a municipal custom exists, and tha t such a custom encourages or allows officers to use exce ssive force without concern for punishment. See , e.g. , Vann v. City of New York , 72 F.3d 1040, 1050 (2d Cir. 1995); Fiacco v. City of Rensselaer , 783 F.2d 319, 329-31 (2d Cir. 1986), cert. denied , 480 U.S. 922 (198 7). However, even if we are to assume as true that there wer e shortcomings in the investigation into the January 22shooting, the shortcomings would
no t prove the flawed investigation was a moving force behind the deputies' allege d misco nduct. A single incident normally does not suffice to prove the existence of a municipa lcustom. See Oklahoma City v. Tuttle , 471 U.S. 808, 823-24 (1985 ) (plu rality opinion); see also Andrews v. Fowler , 98 F.3d 1069, 1077 (8th Cir. 1996 ) (finding that one instance of a police department's departure from its hiring procedures didnot suffice to show the department normally hired officers without proper regard fo r community safety). In addition, an inadequate investigation into the January 2 2 sh ooting could not have caused Deputies Haltiner and Whitledge to use excessiv e force. Rather, Ms. Mettler would need to show that Ramsey County had failed t o investiga te previous incidents before a court could conclude the deputies at the tim e of the shoo ting believed a municipal custom allowed them to violate Shawn's right s with impunity. See id. at 1076 (affirming a district court's grant of summary judgment where there was no evid ence that the municipality had been deliberately indifferent to compl aints received prior to the constitutional violations alleged in the plaintiff' s complaint). As we have mentioned supra , Ms. Mettler has offered no evidence tha t any previous investigations were inadequate, or that such investigations were a moving force in th e deputies' actions toward Shawn. Accordingly, we affirm the Distric t Court's grant of summary judgment for Ramsey County on Count II of Ms. Mettler's complaint.-14- V.
Finally, Ms. Mett

ler challenges the District Court's grant of summary judgment on Count IV of her complaint. Count IV alleges all the defendants violated 42 U.S.C. § 1985(3) when they conspired to concealevidence of wrongdoing and to prevent Ms. Mettler from receiving a fair trial on her claims that Ramsey County and its deputies had violated Shawn's constit utional rights. After reviewing the issue de novo, we find th atMs. Mettler has failed to produce evidence of a conspiracy and that summar y judgment therefore was correctly granted.

To recover for a conspiracy to violate her civil rights in violation of 42 U.S.C. § 1985(3), Ms. Mettler must prove four elements: (1) the existence of a civi l conspiracy; (2) that the purpo se of the conspiracy was to deprive her either directly or indirectly of her civil rights; (3) that a conspirator did an act in furtherance of th e ob jectof the conspiracy; and (4) damages, shown by demonstrating either injury t o person or property or the deprivation of a civil right. See Andrews , 98 F.3d at 1079 (citing Griffin v. Breckenridge , 403 U.S. 88, 102-03 (1971)).

Because Ms. Mettl er has not offered evidence to support her conspiracy claim, th e claim cannot proceed. She has pointed to numerous problems in the Ramse y Co unty Sheriff's Department post-incident investigation. She has produced n o evidence that such shortcomings were inte ntional, or that they arose from a conspiracy among th e defendants. Speculation and conjecture are not enough to prove a conspiracy ex ists. See Hinkle v. City of Clarksburg , 81 F.3d 416, 421-22 (4th Cir

. 1996) (holdi ng that the plaintiff had not offered sufficient evidence of a conspiracy to
avo id summary judgment; the plaintiff had shown important evidence had bee n misplaced but had offer

ed no evidence of concerted action). Therefore, we affirm the decision of the District Court to grant defendants Ramsey County and Deputie s Halt iner and Whitledge summary judgment on Count IV of Ms. Mettler's complaint

.-15- VI.

For the reasons stated above, the decision of the District Court is reversed with respect to Count I, and the case is remanded with instructions that summary judgment be entered in favor of defendants Haltiner an d Whitledge on that Count on the grounds of qualifie d immunity. In all other respects, the judgment of the District Court i s affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.