1

The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota, sitting by designation. 

2

The Honorable James M. Moody, United States District Judge for the Eastern

District of Arkansas, sitting by designation. 

3

Pursuant to 28 U.S.C. § 46(b), the Chief Judge certified the existence of a

judicial emergency necessitating the designation of a panel consisting of fewer than

two members of the Court of Appeals. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-4146/4147/4148

___________

Larry R. Smithson, Ryan Smithson, *

and Chris Smithson, * 

 * Appeal from the United States

 Appellees, * District Court for the Southern 

* District of Iowa. 

 vs. * 

* 

Jeff Aldrich, Kenneth Brown, Thomas *

Heller, Mike McBride, Debra *

Richardson, Judy Stanley, Gregg *

Westemeyer, and the City of Des *

Moines, Iowa, *

*

 Appellants. *

___________

Submitted: September 15, 2000

Filed: December 21, 2000 

___________

Before RICHARD S. ARNOLD, Circuit Judge, BATTEY,1

 and MOODY,2 District

Judges.3
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___________

BATTEY, District Judge.

Larry, Ryan, and Chris Smithson brought an action against Officers Kenneth

Brown, Gregg Westemeyer, Mike McBride, Thomas Heller, Judy Stanley; Sergeants

Debra Richardson and Jeff Aldrich; and the City of Des Moines seeking damages

under 42 U.S.C. § 1983 for various acts occurring on two separate occasions. The

officers seek a reversal of the district court’s denial of summary judgment on

qualified immunity grounds on appellees’ Constitutional claims. We reverse.

FACTS

This case arises out of two different encounters between Des Moines police

officers and the owner of a downtown bar, appellee Larry Smithson (Smithson). On

August 26, 1996, at approximately 10:55 p.m., Officer Kenneth Brown (Brown) and

Officer Mike McBride (McBride) responded to a complaint of loud music coming

from Smithson’s bar. At 10:58 p.m. McBride radioed for assistance from Sergeant

Debra Richardson (Richardson). Upon arrival Richardson proceeded to the front door

of the bar and talked to Smithson. After this conversation, Richardson proceeded to

the patio area where a band was playing live music over an amplified sound system.

The parties agree that the bar had a permit for this outdoor concert; however, the

permit expired at 11 p.m. The parties also agree that it was after 11 p.m. when

Richardson reached the patio stage.

 

Upon her arrival at the patio stage, Richardson issued an order to turn the

music off. Smithson followed Richardson onto the patio stage and addressed the

crowd over the band’s sound system. The parties dispute the contents of Smithson’s

message to the crowd; however, there is no dispute that after these statements were

made the crowd reacted in a hostile manner towards Richardson and her fellow
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officers. Specifically, the crowd started an obscene chant directed at the Police. A

call was then made for backup. When backup arrived, Smithson was arrested and

charged with disorderly conduct and a violation of a city sound ordinance. 

The second incident occurred during the late night hours of September 20,

1996, and the early morning hours of September 21, 1996. While on patrol Officer

Judy Stanley (Stanley) noticed a female lying on the sidewalk outside of the bar.

Stanley interviewed the female and noticed that she had injuries consistent with an

assault. During this interview the victim told Stanley that Smithson and his son Ryan

Smithson (Ryan) were responsible for her injuries. Stanley also interviewed several

eyewitnesses who confirmed the victim’s story. While Stanley was conducting these

interviews, Sergeant Jeff Aldrich (Aldrich) arrived upon the scene to provide

supervisor support to Stanley. Stanley and Aldrich did not interview every available

witness nor did they view any video tapes from the security video system before

determining that Smithson and Ryan should be arrested on assault charges. The

officers, however were unaware of the existence of these tapes.

DISCUSSION 

The district court denied the officers’ motion for summary judgment on all

claims presented, holding that the facts are vigorously disputed precluding summary

judgment. On appeal, the officers allege that the district court erred in concluding

that they were not entitled to qualified immunity.

I.

 

A. Jurisdictional Challenge

Appellees challenge our jurisdiction to review the district court’s order.

Because we can establish our jurisdiction to hear the case, we reject this challenge.
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When a district court’s denial of a claim of qualified immunity turns upon a issue of

law, it is an appealable “final decision.” See Mitchell v. Forsyth, 472 U.S. 511, 530,

105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Whereas, a rejection of a qualified

immunity defense is not appealable when the record presents a genuine issue of fact

for trial. See Johnson v. Jones, 515 U.S. 304, 319-20, 115 S. Ct. 2151, 132 L. Ed. 2d

238 (1995). In this case, we have parsed the facts claimed by the parties to be

material. The facts set forth above constitute the facts material to the issue of

qualified immunity. We, therefore, must determine whether, considering these

relevant facts in the light most favorable to appellees, any of the appellants knew they

were violating clearly established law. Our inquiry is a quintessentially legal one,

and we accordingly have jurisdiction to consider defendants’ appeal. See Mitchell

v. Forsyth, 472 U.S. at 528 n.9 (1985).

B. Qualified Immunity

A motion for summary judgment on qualified immunity grounds is only

precluded when the plaintiff has “(1) assert[ed] a violation of a constitutional right;

(2) demonstrate[d] that the alleged right is clearly established; and (3) raise[d] a

genuine issue of fact as to whether the official would have known that his alleged

conduct would have violated the plaintiff[s'] clearly established right.” Goff v. Bise,

173 F.3d 1068, 1072 (8th Cir.1999) (quoting Habiger v. City of Fargo, 80 F.3d 289,

295 (8th Cir.), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 407 (1996)).

Stated another way, qualified immunity shields a defendant from suit if he or she

could have reasonably believed his or her conduct to be lawful “in light of clearly

established law and the information [that the defendant] possessed.” Anderson v.

Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3037, 97 L. Ed. 2d 523 (1987). “The

qualified immunity standard ‘gives ample room for mistaken judgments’ by

protecting ‘all but the plainly incompetent or those who knowingly violate the law.’”

Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991)

(per curiam), quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S. Ct. 1092,
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1097, 1096, 89 L. Ed. 2d 271 (1986). Although qualified immunity is “‘an immunity

from suit rather than a mere defense to liability,’” Hunter, 502 U.S. at 227 (emphasis

omitted) (quoting Mitchell, 472 U.S. at 526), and therefore its availability “ordinarily

should be decided by the court long before trial,” Hunter, 502 U.S. at 228, the

nonmoving party is given the benefit of all relevant inferences at the summary

judgment stage, and if a “genuine dispute exists concerning predicate facts material

to the qualified immunity issue, the defendant is not entitled to summary judgment

on that ground.” Pace v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000). 

II.

With regards to the incident occurring on August 26, 1996, Officer Gregg

Westemeyer (Westemeyer), Brown, McBride, and Richardson contend that the district

court should have granted them immunity on appellees’ Fourth Amendment, First

Amendment, and due process claims. 

A. Fourth Amendment 

In connection to a Fourth Amendment false arrest claim, the relevant inquiry

is whether the officers had probable cause to arrest Larry Smithson. See Baker v.

McCollan, 443 U.S. 137, 142, 99 S. Ct. 2689, 2693-94, 61 L. Ed. 2d 433 (1979);

Hannah v. City of Overland, Mo., 795 F.2d 1385, 1389 (8th Cir. 1986) (holding

§ 1983 action lies for warrantless arrest without probable cause). Probable cause

exists if “the totality of facts based on reasonably trustworthy information would

justify a prudent person in believing the individual arrested had committed . . . an

offense” at the time of the arrest. Hannah, 795 F.2d at 1389 (quoting United States

v. Wallraff, 705 F.2d 980, 990 (8th Cir. 1983)). “[T]he probability, and not a prima

facie showing, of criminal activity is the standard of probable cause.” Id. (quoting

Wallraff, 705 F.2d at 990). Therefore, law enforcement officers are entitled to

qualified immunity if they arrest a suspect under the mistaken belief that they have
4

Des Moines City Code Section 16-144 reads as follows:

Regulation of Sound Equipment and Sound Amplifying Equipment.

(a) Except for activities open to the public and for which a permit has been

issued by the city under this section, no person shall so operate, play or

permit the operation or playing of any sound equipment: 

(1) As to create a noise disturbance across a residential real property

boundary or outdoors within a noise sensitive area.

(2) As to create a noise disturbance 50 feet from the device, when operated

in or on a motor vehicle on a public right-of-way or public space, or in

a boat on public waters. 

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probable cause to do so–provided that the mistake is objectively reasonable. Hunter

v. Bryant, 502 U.S. 224, 228-29, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991). Stated

otherwise, “The issue for immunity purposes is not probable cause in fact but

arguable probable cause.” Habiger, 80 F.3d at 295 (citation omitted).

In this case, it is undisputed that on August 26, 1996, Smithson was the owner

of a bar which had a band playing live music over an amplified sound system past

11 p.m., in violation Des Moines City Code Section 16-144.4

 The officers were

present and observed this violation. It is immaterial that Smithson was also charged

with disorderly conduct. See Arnott v. Mataya, 995 F.2d 121, 124 n.3 (8th Cir. 1993)

(an officer need only demonstrate probable cause to carry out an arrest for any offense

arising out of an incident. That the officer may have had a mistaken belief that she

had probable cause to arrest for other offenses is immaterial so long as probable cause

existed for the one offense). The fact that the offense was a misdemeanor is also

immaterial to our Fourth Amendment analysis. See United States v. Watson, 423

U.S. 411, 418, 421-24, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976) (a police officer is

permitted to arrest without a warrant if a misdemeanor is committed in the officer’s

presence). Thus, the officers in this case had, at least, arguable probable cause to

conclude that Smithson had violated the city’s sound ordinance. Accordingly, we

conclude that Brown, Westemeyer, McBride, and Richardson are entitled to qualified
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immunity on appellees’ Fourth Amendment false arrest claim. See Johnson v.

Schneiderheinz, 102 F.3d 340 (8th Cir. 1996); see also Hannah v. City of Overland,

795 F.2d 1385, 1389 (8th Cir. 1986) (recognizing that warrantless arrests with

probable cause do not give rise to § 1983 claims). 

B. First Amendment 

 To be successful on his First Amendment claim, Smithson must demonstrate

that he was “deprived of a right ‘secured by the Constitution and the laws’ of the

United States.” McIntosh v. Arkansas Republican Party-Frank White Election

Comm., 766 F.2d 337, 340 (8th Cir. 1985) (quoting Flagg Brothers, Inc. v. Brooks,

436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978) (quoting 42 U.S.C.

§ 1983)). Smithson claims that his arrest was pretextual; that is, he argues that the

officers arrested him not to enforce the city’s sound ordinance, but because of their

disagreement with his statements to the crowd challenging the decision to stop the

music. On the facts of this case, we seriously doubt this claim of pretext. There is

no dispute that during the August 26, 1996, incident, Smithson followed Richardson

onto the patio stage and addressed the crowd. There is also no dispute that after

Smithson addressed the crowd the situation turned hostile towards the officers.

Under these circumstances Richardson and her fellow officers could reasonably

believe that Smithson in some way incited the crowd. We know of no First

Amendment right which would protect speech of persons inciting a crowd to obstruct

a police officer’s duty to enforce the law. Even if the officers’ belief that Smithson

incited the crowd was a mistake, the purpose of the qualified immunity doctrine is to

provide ample room for mistaken judgments and to protect “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986). 

Furthermore, even if this pretextual argument were proven at trial, it would not

nullify the finding of probable cause to believe that Smithson was violating the sound
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ordinance, nor would it prevent the application of the qualified immunity defense.

See Habiger v. City of Fargo, 80 F.3d 289, 296 (8th Cir. 1996) (citing United States

v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1113,

115 S. Ct. 1970, 131 L. Ed. 2d 859 (1995); Foster v. Metropolitan Airports Comm’n,

914 F.2d 1076, 1081 (8th Cir. 1990)). Since we apply an objective and not a

subjective standard, in our view, the officers’ judgment was objectively reasonable.

Therefore, the claim of pretext is immaterial and the officers are entitled to qualified

immunity on appellees’ First Amendment claim. See Malley, 475 U.S. at 341, 106

S. Ct. at 1096.

C. Due Process

The Supreme Court's most recent pronouncement emphasizes that actionable

cases must demonstrate a “level of . . . abuse of power,” or activity that was “so

‘brutal’ and ‘offensive’ that it did not comport with traditional ideas of fair play and

decency.” County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S. Ct. 1708, 140

L. Ed. 2d 1043 (1998), quoting Breithaupt v. Abram, 352 U.S. 432, 435, 77 S. Ct.

408, 1 L. Ed. 2d 448 (1957), itself quoting Rochin v. California, 342 U.S. 165, 174,

72 S. Ct. 205, 96 L. Ed. 183 (1952). In this case, appellees’ allegation of a conspiracy

to provide false testimony is conclusory and therefore fails to state a claim. See

Rogers v. Bruntrager, 841 F.2d 853, 856 (8th Cir. 1988) (conspiracy claim requires

allegations of specific facts showing a “meeting of minds” among alleged

conspirators). Thus, appellees have failed to establish that the officers’ conduct

constituted “abusive, arbitrary, or oppressive government conduct.” Gregory v. City

of Rogers, Ark., 974 F.2d 1006, 1009 (8th Cir. 1992); see also Chesterfield Dev. Corp.

v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992) (noting that substantive

due process claims should be limited to “truly irrational” governmental action).

Therefore, we conclude that the officers are entitled to summary judgment on

appellees’ due process claim. 
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III.

The second incident occurring on September 21, 1996, involves appellants

Officer Stanley and Sergeant Aldrich. These appellants contend that the district court

should have granted them qualified immunity on appellees’ Fourth Amendment and

due process claims.

A. Fourth Amendment 

As stated above, the relevant inquiry in a Fourth Amendment false arrest claim

is whether the officers had probable cause to arrest appellees. See Baker, 443 U.S.

at 142, 99 S. Ct. at 2693-94; Hannah, 795 F.2d at 1389 (holding § 1983 action lies

for warrantless arrest without probable cause). Appellees claim that Officer Stanley

and Sergeant Aldrich violated the Fourth Amendment when they ignored arguably

exculpatory evidence (video tapes) and failed to interview all of the available

witnesses prior to the arrest.

The facts of this incident, viewed in a light most favorable to appellees,

establish that Stanley interviewed the victim and several eyewitnesses to the incident.

Stanley noticed that the victim had markings consistent with an assault and she was

told by the victim and the eyewitnesses that Smithson and his son Ryan were the

responsible parties. 

As for appellees’ claim that the officers ignored exculpatory video tapes, it is

undisputed that neither Stanley nor Aldrich knew of the existence of these video tapes

prior to making the arrest. Furthermore, the fact that the officers did not interview

every available witness also does not bar a finding of probable cause. Brodnicki v.

City of Omaha, 75 F.3d 1261, 1264 (8th Cir.) cert. denied, 519 U.S. 867 (1996);

Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974) (officers are not required

to “conduct a mini trial” before making an arrest). Probable cause is to be determined
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upon the objective facts available to the officers at the time of the arrest. See id. At

the time of appellees’ arrest in this case, the officers had, at least, arguable probable

cause to conclude that Smithson and his son Ryan had committed an assault. Even

if this were a mistaken belief the officers would still be entitled to a qualified

immunity defense. See Malley, 475 U.S. at 341, 106 S. Ct. at 1096. Accordingly,

we conclude that Stanley and Aldrich are entitled to qualified immunity on appellees’

Fourth Amendment false arrest claim. See Hannah v. City of Overland, 795 F.2d

1385, 1389 (8th Cir. 1986) (recognizing that warrantless arrests with probable cause

do not give rise to § 1983 claims). 

B. Due Process

Appellants Stanley and Aldrich also contend that they should be granted

summary judgment on appellees’ due process claim and quote the Supreme Court as

follows: 

[w]here a particular [constitutional] amendment provides an explicit

textual source of constitutional protection against a particular sort of

government behavior, that Amendment, not the more generalized notion

of substantive due process, must be the guide for analyzing these claims.

Albright v. Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 813, 127 L. Ed. 2d 114 (1994).

“The Framers considered the matter of pretrial deprivations of liberty and drafted the

Fourth Amendment to address it.” Id. at 274, 114 S. Ct. at 813. 

Appellees’ due process claim against Stanley and Aldrich alleges an arrest

without probable cause. This claim has been properly addressed under a Fourth

Amendment analysis. Accordingly, we conclude that Stanley and Aldrich are entitled

to summary judgment on appellees’ due process claim. See id.
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CONCLUSION

For the reasons stated herein, the district court’s denial of summary judgment

to Brown, Westemeyer, McBride, and Richardson on appellees’ Fourth Amendment,

First Amendment, and due process claim is reversed, and the district court’s denial

of summary judgment to Stanley and Aldrich on appellees’ Fourth Amendment and

due process claim is reversed. We remand the case for further proceedings consistent

with this opinion.

A true copy.

ATTEST:

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