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No. 95-2183

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Wesley Brayman, Debra Brayman, *

*

Plaintiffs-Appellees, * Appeal from the United States

* District Court for the

v. * Southern District of Iowa.

*

United States of America, *

 *

Defendant, *

 *

Mark Shepherd, *

*

Defendant-Appellant. *

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 Submitted: March 11, 1996

 Filed: September 4, 1996 

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Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

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PER CURIAM.

Deputy United States Marshal Mark Shepherd appeals the district

court's partial denial of qualified immunity on three Bivens claims arising

out of his participation in the execution of a forfeiture warrant. See

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971) (allowing cause of action against federal officers for violating

the Fourth Amendment). We conclude that Shepherd was entitled to qualified

immunity on these claims. Accordingly, we reverse the judgment of the

district court. 
2

I.

Wesley and Debra Brayman were living on rented property that became

subject to a forfeiture order in May 1988. The forfeiture complaint

alleged that the owners of the property, Michael and Michelle Landon,

acquired it with the proceeds of unlawful drug transactions and that the

property was used to facilitate unlawful drug transactions, rendering it

subject to forfeiture under 21 U.S.C. § 881(a). The district court entered

an order for a writ of monition on June 3, 1988, directing that the

property be seized and that notice be given to the owners of the property.

Deputy Marshal Shepherd and several other law enforcement officers,

including a special agent of the FBI, executed the warrant of seizure and

monition for the property on June 21, 1988. The FBI also had a separate

seizure warrant issued by a United States Magistrate Judge, for the same

property which was executed contemporaneously. The officers were aware

that Wesley Brayman, a resident of the home, was a felon previously

convicted of a crime of violence. The officers also knew that the property

was allegedly being used to facilitate drug trafficking crimes, "that the

house was alarmed[,] and that dogs were roaming the grounds." (App. at

92.) However, the officers were also aware that this was a civil

forfeiture proceeding and that their purpose was to execute the warrants

and conduct an inspection of the property, not conduct a criminal

investigative search. 

When the officers arrived to execute the seizure warrants, they

knocked at the door and were initially denied entrance. After waiting

several minutes and determining that the occupants were not going to allow

them in, the officers threatened to use force to open the locked door.

This prompted Debra Brayman to allow the officers into the house. 
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The officers served Debra Brayman with the warrants and inspected the

property. Deputy Marshal Shepherd made a videotape of the inspection to

record the condition of the property in compliance with the United States

Department of Justice Seized Asset Management Handbook. During the

inspection, the officers observed several firearms in an open master

bedroom closet containing men's clothes. There is a dispute over who owns

the firearms and whether Debra consented to their seizure. According to

Shepherd, Debra told him the firearms belong to her husband, Wesley

Brayman. Debra's affidavit states that she owns the firearms, and she

denies making any statement that they belong to her husband. Shepherd

claims that after they discovered the firearms, he contacted an Assistant

United States Attorney, who advised that they should give the guns to the

Bureau of Alcohol, Tobacco, and Firearms (BATF) if Debra would voluntarily

release them. Shepherd claims that, with Debra's consent, he seized the

firearms and provided them to BATF agents. Debra Brayman denies giving her

consent.

The officers placed seizure notices on the property and presented

Debra Brayman with a document entitled "Stipulation of Occupancy," which

allowed the Braymans to remain on the seized property for a period of six

months after the seizure. There is a dispute over the circumstances under

which Debra signed the agreement. She claims she was forced to sign

because the officers told her she must either sign the agreement or be

evicted. Shepherd says he advised her to consult her husband before

signing, and when Debra asked about the consequences of refusing to sign,

he told her he would have to advise the United States Attorney and

recommend that they institute proceedings to remove them from the property.

By the end of June 1988, officers believed that the property had been

abandoned. Shepherd's office received reports of cruelty to animals living

on the property, and during another inspection,
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he observed livestock loose on the property. On advice of the United

States Attorney, Shepherd reported the information concerning the welfare

of the animals to the local authorities. Debra disputes the truth of this

report, insisting that her husband was taking good care of the livestock

and that the Animal Control Officer for Pottawattamie County could testify

to the good condition of the animals and the property. 

In July 1988, the Braymans filed a counterclaim in the forfeiture

action, alleging violations of the United States and Iowa constitutions.

Subsequently, Wesley Brayman and Michael Landon were indicted as

coconspirators in the distribution of cocaine, and Wesley Brayman pled

guilty. Braymans' counterclaim was severed from the forfeiture action

(which is now closed) and became this separate case. Among other things,

the complaint alleged the following Bivens claims against Shepherd: The

law enforcement officers entered the property with firearms drawn,

unlawfully detained Debra, forced Debra to sign the occupancy agreement,

unlawfully searched and seized personal property, made false reports that

the Braymans were being cruel to their livestock, and denied them

preseizure notice and a hearing.

Shepherd sought summary judgment on the ground that he is entitled

to qualified immunity from suit. The district court granted his motion in

part, determining that Shepherd was entitled to qualified immunity for his

actions of entering the home, for conducting a videotaped structural

inventory, for all allegations regarding the unlawful entry and search of

the premises and the unlawful detention of Debra Brayman, and for using the

threat of force to open the door where he reasonably feared the residents

could be arming themselves. The court concluded that none of these actions

violated a clearly established constitutional right. The district court

also granted Shepherd qualified immunity on the Braymans' due process

claim, concluding that no preseizure notice
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or hearing requirements existed at the time Shepherd executed the seizure

warrant. 

The district court denied Shepherd's motion in part as well. The

court denied qualified immunity on the claims that he illegally seized the

firearms, that Debra Brayman was forced to sign the occupancy agreement,

and that Shepherd made false reports that the Braymans were treating their

livestock cruelly. On each of these claims, the district court found that

conflicting evidence prevented the grant of qualified immunity. Shepherd

appeals the district court's partial denial of qualified immunity. 

II.

We first consider our jurisdiction to decide this appeal. Subject

to certain statutory exceptions, our jurisdiction extends only to "final

decisions" rendered by a district court. 28 U.S.C. § 1291 (1988); Johnson

v. Jones, 115 S. Ct. 2151, 2154 (1995). The Supreme Court has long held

that orders collateral to and separable from the rights asserted in the

action are immediately appealable as final decisions under § 1291. Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). The Court has

further held that "a district court's order denying a defendant's motion

for summary judgment was an immediately appealable `collateral order'

(i.e., a `final decision') under Cohen, where (1) the defendant was a

public official asserting a defense of `qualified immunity,' and (2) the

issue appealed concerned, not which facts the parties might be able to

prove, but, rather, whether or not certain given facts showed a violation

of `clearly established' law." Johnson, 115 S. Ct. at 2155 (quoting

Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).

Citing Johnson v. Jones, the Braymans contend that we lack

jurisdiction over this appeal. In Johnson, the Supreme Court held that "a

defendant, entitled to invoke a qualified-immunity defense, may not appeal

a district court's summary judgment order insofar as
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that order determines whether or not the pretrial record sets forth a

`genuine' issue of fact for trial." 115 S. Ct. at 2159. The Court

stressed that appellate review of the qualified immunity issue is limited

to the purely legal question of "`whether the facts alleged (by the

plaintiff, or, in some cases, the defendant) support a claim of violation

of clearly established law.'" Id. at 2156 (quoting Mitchell v. Forsyth,

472 U.S. at 528 n.9). Because the trial court denied qualified immunity

in this case on the basis that a dispute of material fact existed, and not

on the question of clearly established law, the Braymans contend the appeal

is without jurisdiction. 

We conclude that the Braymans read the holding of Johnson too

broadly. The Supreme Court recently clarified the scope of Johnson. See

Behrens v. Pelletier, 116 S. Ct. 834 (1996). In Behrens, the appellee

asserted, among other things, the same argument asserted by the Braymans:

the appeal is without jurisdiction because the denial of qualified immunity

rested on the ground that material issues of fact remain. 116 S. Ct. at

842. The Court rejected the argument, explaining as follows:

Every denial of summary judgment ultimately rests upon a

determination that there are controverted issues of material

fact, see Fed. Rule Civ. Proc. 56, and Johnson surely does not

mean that every denial of summary judgment is nonappealable.

Johnson held simply, that determinations of evidentiary

sufficiency at summary judgment are not immediately appealable

merely because they happen to arise in a qualified immunity

case . . . . 

Here, the District Court's denial of petitioner's summary

judgment motion necessarily determined that certain conduct

attributed to petitioner (which was controverted) constituted

a violation of clearly established law. Johnson permits

petitioner to claim on appeal that all of the conduct which the

District Court deemed sufficiently supported for purposes of

summary judgment met the Harlow standard of "objective legal

reasonableness." 
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Id. at 842. 

In the present case, the district court determined that material

issues of fact remain concerning the three claims for which qualified

immunity was denied. However, the district court did so without first

expressly considering whether these claims, as alleged, support a violation

of clearly established law. See Siegert v. Gilley, 500 U.S. 226, 231

(1991) (holding that the first inquiry in a proper qualified immunity

analysis is whether the plaintiff alleged the violation of a clearly

established constitutional right). We conclude that we have jurisdiction

to consider this question of law with regard to each claim. 

III.

Government officials are entitled to qualified immunity from civil

liability unless their actions violated "clearly established statutory or

constitutional rights of which a reasonable person would have known."

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Prosser v. Ross,

70 F.3d 1005, 1007 (8th Cir. 1995); Reece v. Groose, 60 F.3d 487, 491 (8th

Cir. 1995). "The contours of the right must be clearly established in a

particularized sense: `The contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing

violates that right.'" Prosser, 70 F.3d at 1007 (quoting Anderson v.

Creighton, 483 U.S. 635, 639 (1987)). "We review de novo the district

court's denial of qualified immunity at summary judgment." Henderson v.

Baird, 29 F.3d 464, 467 (8th Cir. 1994), cert. denied, 115 S. Ct. 2584

(1995). 

The district court determined that Shepherd was not entitled to

qualified immunity on the Braymans' claim that he unreasonably seized

firearms during the inventory, because there existed a material dispute of

fact concerning whether Debra Brayman consented to the seizure. We

conclude that this factual dispute is
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immaterial to the legal determination of whether the Braymans have alleged

the violation of a clearly established right. Even assuming Debra did not

consent to the seizure, the remaining undisputed facts demonstrate that

Shepherd did not violate a clearly established constitutional or statutory

right, because his actions were justified by the plain view doctrine. 

The Fourth Amendment to the United States Constitution provides a

right to be free from unreasonable searches and seizures, a right that

"generally -- though not always -- translates into a warrant requirement."

United States v. Hatten, 68 F.3d 257, 260 (8th Cir. 1995), cert. denied,

116 S. Ct. 1026 (1996). One exception to the warrant requirement is the

plain view doctrine, which permits law enforcement officers to seize

objects in plain view if (1) "the officer did not violate the Fourth

Amendment in arriving at the place from which the evidence could be plainly

viewed," (2) the evidence was in plain view and "its incriminating

character [was] immediately apparent," and (3) the officer had a "lawful

right of access to the object itself." Horton v. California, 496 U.S. 128,

136-37 (1990). See also Hatten, 28 F.3d at 260. 

Shepherd's seizure of the firearms satisfies all three requirements

of the plain view doctrine. First, he did not violate the Fourth Amendment

by his presence inside the Braymans' home. Shepherd was present to execute

a lawful seizure warrant, which required him to inventory the property.

The district court properly concluded that Shepherd's conduct of entering

and searching the premises was objectively reasonable and did not violate

clearly established law. 

Second, for the object's incriminating character to be immediately

apparent, "the officers must have `probable cause to associate the property

with criminal activity.'" Hatten, 68 F.3d at 261 (quoting United States

v. Garner, 907 F.2d 60, 62 (8th Cir.
9

1990), cert. denied, 498 U.S. 1068 (1991)). This was the home of Wesley

Brayman, known by the officers to be a convicted felon. The firearms were

plainly observed through the open door of the master bedroom closet

containing men's clothing. These undisputed facts provided the officers

with probable cause to believe that the firearms were the object of a

crime, because either actual or constructive possession of a firearm by a

felon is a violation of 18 U.S.C. § 922(g). See United States v. Koskela,

86 F.3d 122, 127 (8th Cir. 1996) (holding that circumstantial evidence

supported a finding of constructive or joint possession sufficient to

sustain a § 922(g) conviction); United States v. Boykin, 986 F.2d 270, 274

(8th Cir.), cert. denied, 510 U.S. 888 (1993) (stating that "[c]onstructive

possession of the firearm is established if the person has dominion over

the premises where the firearm is located"). It is also a violation of

Iowa law for a felon to have dominion and control of a firearm. Iowa Code

Ann. § 724.26 (West 1993). See State v. Miles, 490 N.W.2d 798, 800 (Iowa

1992) (holding that a jury question was presented where a firearm was found

in the defendant's truck). Because ownership is not an element of these

crimes, a dispute over ownership does not create a question of material

fact to prevent application of the plain view doctrine. The undisputed

circumstances demonstrate that the incriminating character of the firearms

was immediately apparent. 

Third, the inspection did not exceed the scope of what was necessary

to execute the lawful warrant. (See App. at 183 (the FBI seizure warrant

expressly required an inventory of the property).) It was necessary to

inspect the structural integrity of the property, both inside and outside,

and the officers were required to take accurate photographs of the interior

and exterior of the property. (App. at 161.) The inspection of bedrooms

and open closets was well within the scope of the warrant. The officers

did not open any closet doors, drawers, or closed containers. Therefore,

on the undisputed facts, the officers had lawful right of access to the

firearms. See United States v. Hughes, 940 F.2d
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1125, 1127 (8th Cir.), cert. denied, 502 U.S. 896 (1991). "Because the

warrant authorized the officers' search of the places they found the gun[s]

. . . and the plain view doctrine authorized the seizure of these

incriminating objects," id., the Braymans' allegation that Shepherd

unlawfully seized the firearms does not state a violation of a clearly

established constitutional right. 

IV.

The district court also determined that Shepherd was not entitled to

qualified immunity because issues of fact existed concerning whether Debra

Brayman was forced to sign the occupancy agreement and whether Shepherd

filed false reports of animal cruelty with local authorities. Again, we

conclude that these claims do not allege the violation of a clearly

established constitutional right. The property was forfeitable pursuant

to 21 U.S.C. § 881(a) and lawfully seized by the government, so the

Braymans had no constitutional right to continued occupancy of the

property. In this circumstance, a threat of eviction as alleged by Debra

Brayman does not state the violation of a clearly established right.

Furthermore, it is well established that defamation or injury to reputation

by itself does not state a constitutional deprivation. See Siegert, 500

U.S. at 233-34; Paul v. Davis, 424 U.S. 693, 708-12 (1976); Nelson v. City

of McGehee, 876 F.2d 56, 58 (8th Cir. 1989). Thus, the Braymans'

allegation that Shepherd made false reports to local authorities does not,

without some indication of a due process violation, state the violation of

a clearly established constitutional right. 

V.

We conclude that because the Braymans failed to allege a violation

of a clearly established constitutional right, Shepherd is entitled to

qualified immunity on all of their Bivens claims. 
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Accordingly, we reverse the district court's partial denial of Shepherd's

motion for summary judgment. We remand the case to the district court for

the entry of an order dismissing with prejudice all of the Braymans' Bivens

claims against Deputy Shepherd. 

A true copy.

Attest:

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