_____________ No. 95-2183

_____________ 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. *

_____________ Submitted: March 11, 1996 Filed: September 4, 1996

_____________ Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

_____________

PER CURIAM.
Dep utyUnited States Marshal Mark Shepherd appeals the distric t court's partial denial of qualified immunity on three Bivens claims arisin g out of hi s participation in the execution of a forfeiture warrant. Se e Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971) (allowing cause of action against federal officers for violatin g the Fourth Amendment). We conclude that Shepherd was entitled to qualifie d immun ity on these claims. Accordingly, we reverse the judgment of th e district court.

### 2 I.

Wesley an d Debra Brayman were living on rented property that became subj ect to a forfeiture order in May 1988. The forfeiture complain t alleged that the owners of the property, Michael and Michelle Landon , acquired it with the proceeds of unlawful drug transactions and that the propertywas used to facilitate unlawful drug transactions, rendering it subject to forfeiture under 21 U.S.C. § 881(a). The district court entere d
an order fo r a writ of monition on June 3, 1988, directing that th e property be seized and that notice be given to t he owners of the property.

Deputy Ma rshal Shepherd and several other law enforcement officers, including a special a gent 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 proper tywhich was executed contemporaneously. The officers were awar e that Wesl ey Brayman, a resident of the home, was a felon previousl y convicted of a crime of violence. The officers also knew that the propert y was allegedly being u sed to facilitate drug trafficking crimes, "that the house was alarmed[,] and that dogs were roaming the grounds." (App. a t 92. ) However, the officers were also aware that this was a civi l forfeiture proceeding and that their purpose was to execute the warrants and c onduct an inspection of the property, not conduct a crimina l investigative search.

When the officers arrived to execute the seizure warrants, the y knock ed at the door and were initially denied entrance. After waitin g several minutes and determining that the occupan ts were not going to allow themin, the officers threatened to use force to open the locked door

. This prompted Debra Brayman to allow the officers into the house.

### 3 The officers served Debra Brayman with the warrants and inspect ed the property. Deputy Marshal Shepherd made a videotape of the inspection to record the condition of the property in compliance with the United States Depart ment of Justice Seized Asset Management Handbook. During th e inspec tion, the officers observed several firearms in an open maste r 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, Wesle y Braym an. Debra's affidavit states that she owns the firearms, and sh e denie s making any statement that they belong to her husband. Shepher d claims that after the y discovered the firearms, he contacted an Assistant United States Attorne y, 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 he r consent.

The officers placed seizure notices on the property and presente d 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 ov er the circumstances under which Debra signed the agreement. She claims she was forced to sig n because the officers told her she must either sign the agreement or b e evic ted. Shepherd says he advised her to consult her husband befor e signing, and when Deb ra asked about the consequences of refusing to sign, he told her he would have to advise the United States Attorney an d recommend that they institute proceedings to remove them from the property

. By the end of June 1988, officers believed that the property ha d been abandoned. Shepherd's office received reports of cruelty to animals livin g on the property, and during another inspection,

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he observed livestock loose on the property. On advice of the Unite d States Attorney, Shep herd 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 Pottawat tamie County could testify to the good condition of the animals and the property.

In Ju ly 1988, the Braymans filed a counterclaim in the forfeitur e action, alleging violations of the United States and Iowa constitutions. Subseq uently, Wesley Brayman and Michael Landon were indicted a s
cocons pirators in the distribution of cocaine, and Wesley Brayman ple d guilty

. Braymans' counterclaim was severed from the forfeiture actio n (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 a nd seized personal property, made false reports that the B raymans were being cruel to their livestock, and denied the m preseizure notice and a hearing.

Shepherd sought summary judgment on the ground that he is entitle d to qualified immunity from suit. The district c ourt granted his motion in part, determining that Shepherd was entitled to qualified immunity for his action s of entering the home, for conducting a videotaped structura l inventory, for all al legations regarding the unlawful entry and search of the premises and the unlawful detention of Debra Brayman, and for using th e threat of force to op en the door where he reasonably feared the residents could be arming themselves. The court concluded that none of these action s violated a clearly established constitutional right. The district court also g ranted Shepherd qualified immunity on the Braymans' due proces s claim, concluding that no preseizure notice

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or hearing requiremen ts existed at the time Shepherd executed the seizure warrant.

The district court denied Shepherd's motion in part as well. Th e court denied qualified immunity on the claims th at he illegally seized the firearms, that Debra Brayman was forced to sign the occupancy agreement, and that Shepherd made false reports that the Br aymans 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. Subjec t 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 th e action are immediatel y 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 sum mary 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 t o prove, but, rather, w hether or not certain given facts showed a violation of ` clearly established' law." Johnson , 115 S. Ct. at 2155 (quotin g Mitchell v. Forsyth , 472 U.S. 511, 528 (1985)).
Citing Johnson v. Jones , the Braymans contend that we lac k jurisdiction over this appeal. In Johnson , the Supreme Court held that "a defendant, entitled to invoke a qualified-immuni ty 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 Cour t stressed that appella te review of the qualified immunity issue is limited to the pu rely legal question of "`whether the facts alleged (by th e plaintiff, or, in som e cases, the defendant) support a claim of violation of clearly establishe d 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 mate rial fact existed, and not
on the question of clearly established law, the Braymans contend the appea l is without jurisdiction.

We conclude that the Braymans read the holding of Johnson to o broadly. The Supreme Court recently clarified the scope of Johnson

. See Behrens v. Pelletier , 116 S. Ct. 834 (1996). In Behrens , the appelle e asserted, among other things, the same argument asserted by the Braymans: the appeal is without jurisdiction because the denial of qualified immunit y rested on the ground that material issues of fact remain. 116 S. Ct. at 842. The Court rejected the argument, explaining as follows:

Ev erydenial of summary judgment ultimately rests upon a de termination that there are controverted issues of materia l fact, see Fed. Rule Civ. Proc. 56, and Johnson surely does not mean t hat everydenial of summary judgment is nonappealable

. Joh nson held simply, that determinations of evidentiar y sufficiency at summary j udgment are not immediately appealable mer ely because they happen to arise in a qualified immunit y case . . . . Here, the District Court's denial of pe titioner's summary jud gment motion necessarily determined that certain conduc t attributed to petitioner (which was controverted) constituted a violation of clearly established law. Johnson permit s petitioner to claim on appeal that all of the condu ct which the Di strict Court deemed sufficiently supported for purposes o f summar yjudgment met the Harlow standard of "objective lega l reasonableness."

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Id. at 842.

In the present case, the district court determined that materia l issues of fact remain concerning the three claims for which qualifie d immun ity was denied. However, the district court did so without firs t expressly considering whether these claims, as alleged, support a violatio n of clearly established law. See Siegert v. Gilley , 500 U.S. 226, 23 1 (1991) (holding that the first inquiry in a proper qualified immunit y anal ysis is whether the plaintiff alleged the violation of a clearl y established constitut ional right). We conclude that we have jurisdiction to consider this question of law with regard to each claim.

III.

Go vernment officials are entitled to qualified immunity from civi l liability unless thei r actions violated "clearly established statutory or consti tutional 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. Gro ose , 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 sufficientl y clear that a reasonable official would understand that what he is doin g violates t hat right.'" Prosser , 70 F.3d at 1007 (quoting Anderson v

. Creighton , 483 U.S. 635, 639 (1987)). "We review de novo the distric t court's denial of qualified immunity at summary judgment." Henderson v. Baird , 2 9 F.3d 464, 467 (8th Cir. 1994), cert. denied , 115 S. Ct. 258 4 (1995).

The district court determined that Shepherd was not entitled t o qualif ied immunity on the Braymans' claim that he unreasonably seize d firearms during the inventory, because there exi sted a material dispute of fact concerning whether Debra Brayman consented to the seizure. W e 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. E ven assuming Debra did not
consen t to the seizure, the remaining undisputed facts demonstrate tha t Shepherd did not violate a clearly established c onstitutional 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 tha t "generally -- though not always -- translates in to 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 seiz e object s in plain view if (1) "the officer did not violate the Fourt h Amendment in arriving at the place from which the evidence could be plainl y viewed," (2) the evidence was in plain view and "its incriminatin g 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 Amendmen t by his presence inside the Braymans' home. Shepherd was present to execut e
a l awful seizure warrant, which required him to inventory the property

. The district court pr operly concluded that Shepherd's conduct of entering and searching the pre mises was objectively reasonable and did not violate clearly established law.

Se cond, for the object's incriminating character to be immediatel y apparent, "the officers must have `probable cause to associate the propert y with criminal activity.'" Hatten , 68 F.3d at 261 (quoting United States v. Garner , 907 F.2d 60, 62 (8th Cir.

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1990), cert. denied , 498 U.S. 1068 (1991)). This was the home of Wesley Brayman, known by the officers to be a convictedfelon. The firearms were plainly observed through the open door of the master bedroom close t containing men's clothing. These undisputed facts provided the officers wit h 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 evidenc e suppor ted a finding of constructive or joint possession sufficient t o 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]onstructiv e possession of the firearm is established if the person has dominion over the pre mises where the firearm is located"). It is also a violation o f Iowa law for a felon to have dominion and contro l of a firearm. Iowa Code Ann. § 724.26 (West 1 993). See State v. Miles , 490 N.W.2d 798, 800 (Iowa 1992) (holding that a jury question was presented where a firearm was foun d in the defendant's truck). Because ownership is not an element of these crimes, a dispute over ownership does not create a question of materia l fact to prevent application of the plain view doctrine. The undispute d circumstances demonstrate that the incriminating character of the firearms was immediately apparent.
Third, the inspection did not exceedthe 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 t o inspect the structural integrity of the property , both inside and outside, and the officers were required to take accurate photographs of the interio r and exterior of the p roperty. (App. at 161.) The inspection of bedrooms and open closets was well within the scope of the warrant. The officers did not open any clos et doors, drawers, or closed containers. Therefore,
on the un disputed facts, the officers had lawful right of access to th e firearms. See United States v. Hughes , 940 F.2d

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1125, 112 7 (8th Cir.), cert. denied , 502 U.S. 896 (1991). "Because th e warrant authorized the officers' search of the places they found the gun[s ]

. . . and the plain view doctrine authorized the seizure of thes e incriminating objects," id. , the Braymans' allegation that Shepher d unlaw fullyseized the firearms does not state a violation of a clearl y established constitutional right.

IV.

The district court also determined t hat Shepherd was not entitled to qualified immunity because issues of fact existe d concerning whether Debra Bra yman was forced to sign the occupancy agreement and whether Shepher d filed false reports of animal cruelty with local authorities. Again, we conclude that these claims do not allege the violation of a clearl y established constitutional right. The property was forfeitable pursuant to 21 U.S .C. § 881(a) and lawfully seized by the government, so th e Brayma ns had no constitutional right to continued occupancy of th e property. In this ci rcumstance, a threat of eviction as alleged by Debra Bray man does not state the violation of a clearly established right

. Furthermore, it is well established that defamation or injury to reputatio n 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 l ocal authorities does not, without some indication of a due process violati on, state the violation of a clearly established constitutional right.

V.

We concl ude that because the Braymans failed to allege a violatio n of a c learly established constitutional right, Shepherd is entitled t o qualified immunity on all of their Bivens claims.

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Accordingly, we rever se 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' Biven s claims against Deputy Shepherd.

A true copy.

Attest:

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