United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1015

___________

Thomas Moran, *

*

Appellant, *

*

v. *

*

Anne-Marie Clarke; Robert Haar; *

Wayman F. Smith, III; Jeffery Jamison; * Appeal from the United States

Clarence Harmon, comprising the * District Court for the Eastern

Board of Police Commissioners * District of Missouri.

of the City of St. Louis; Ronald *

Henderson; Paul M. Nocchiero; *

Gregory Hawkins: Al Klein; Willie *

Thirdkill; Jack Huelsmann; William *

Kusmec; William Swiderski; Richard *

Booker, Jr.; Terrence DuPree; Barry *

Greene; Steven Petty; Harvey Laux, *

*

Appellees. *

___________

Submitted: September 13, 2001

Filed: July 5, 2002 (Corrected 7/23/02)

___________
1

The Honorable Roger L. Wollman stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on January 31,

2002. He has been succeeded by the Honorable David R. Hansen.

2

The Honorable David R. Hansen became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on February 1, 2002.

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Before WOLLMAN,1

 Chief Judge, MCMILLIAN, BOWMAN, BEAM, LOKEN,

HANSEN,2

 MORRIS SHEPPARD ARNOLD, MURPHY, BYE, and RILEY,

Circuit Judges.

___________

BEAM, Circuit Judge.

Thomas Moran, a St. Louis police officer, sued the St. Louis Board of Police

Commissioners ("the Board" or "Board") along with various police officials and

officers, alleging malicious prosecution and violation of his substantive due process

rights. After the plaintiff presented his case to a jury, the defendants made a motion

for judgment as a matter of law, which motion the trial court granted. Moran now

appeals the district court's adverse judgment, along with various evidentiary and

discovery rulings and the district court's denial of his motion for recusal. This matter

was previously heard and decided by a three-judge panel, Moran v. Clarke, 247 F.3d

799 (8th Cir.), vacated and reh'g granted by 258 F.3d 904 (8th Cir. 2001), and now

comes before the court sitting en banc. Once again, we find the district court erred

in awarding judgment as a matter of law. We reverse and remand for a new trial, and

for reconsideration of certain of the evidentiary, discovery and recusal rulings.

I. BACKGROUND

This action represents the end product of a series of tragic events. Given the

district court's disposition of this case, we state the facts in a light most favorable to

Moran, assume the truth of his evidence, and draw all reasonable inferences in his

favor. Otting v. J.C. Penney Co., 223 F.3d 704, 708 (8th Cir. 2000).
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On April 14, 1997, St. Louis police officers Richard Booker and Steven Petty

responded to a report of a burglar alarm at a private residence. Inside the apartment,

the officers encountered Gregory Bell, a mentally-impaired teenager. Bell's

impairment prevented him from providing the proper alarm code or explaining to the

officers that he lived there. Thinking him a burglar, the officers attempted to place

Bell under arrest. Bell resisted. During the ensuing fight, the officers repeatedly

struck him with metal batons and sprayed him with mace. During the struggle, one

of the officers placed an "officer in need of aid" call.

At that time, Sergeant Moran was on duty at a police substation. With him

were emergency medical technicians Mark Rauss and Larry Campbell. When the

"officer in need of aid" call came in, Moran immediately headed to the scene.

Anticipating their own call, Rauss and Campbell also responded. When Moran

reached the scene, ten to thirteen police cars already blocked the street. Moran had

to park far down the street and walk back to the residence. Meanwhile, some

combination of responding officers eventually subdued Bell. After he ceased

resisting, Bell was brought from the house in handcuffs. Dispatcher and 911 tape

recordings indicate that Moran did not arrive at the house until after Bell had been

subdued. After Moran arrived on the scene, he entered the house and encountered

Bell as he was being removed from the premises. Rauss and Campbell treated Bell

from the moment he was brought outside until the time he was transported from the

scene. According to Rauss, Moran did not use mace on Bell during that period. The

incident left Bell with severe lacerations to the head and a broken ankle. There is

substantial evidence that throughout this course of events, Moran neither struck nor

used mace upon Gregory Bell.

Within seventy-two hours of the incident, Police Chief Ronald Henderson

publicly acknowledged that a mistake had been made and committed himself to

punishing wrongdoers. On April 19th, the Saturday following the beating, Major

Hawkins, the Inspector of Police, received an anonymous phone call informing him

that Officer Barry Greene had been at the scene and wanted to make a statement.
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Ordinarily, internal investigations within the St. Louis Police Department are handled

by the Internal Affairs Division ("IAD") and Chiefs of Police are rarely involved. In

this case, however, Major Hawkins, Chief Henderson and Captain Nocchiero, the

IAD director, met with Officer Greene that evening in Henderson's office, while the

assigned IAD investigators, Sergeants Thirdkill and Klein, were never notified.

Officer Greene gave a taped statement accusing Sergeant Moran of striking Bell. 

None of the participants asked Greene a single question. The record indicates that

Greene gave two statements, the first of which did not implicate Moran, and which

was not recorded. 

Shortly after hearing Officer Greene's Saturday night statement, and while IAD

was still interviewing officers, Chief Henderson took Officer Greene, Major Hawkins,

Captain Nocchiero and Sergeants Thirdkill and Klein to speak with Dee Joyce-Hayes,

Circuit Attorney for the City of St. Louis, to report Moran's alleged wrongdoing.

Henderson did this despite the fact that at that time no statement of any other officer

at the scene had implicated Moran. 

In the wake of the beating, IAD had begun interviewing individuals involved,

and ultimately interviewed approximately fifteen officers. Among those interviewed

were Officers Petty and Booker, both of whom waived their Miranda rights and gave

statements. At trial, Moran established that St. Louis officers in such a situation,

facing potential criminal charges of their own, usually do not waive their rights.

Booker testified that "[i]f I waive my rights, I feel basically I'm not being pursued

criminally."

After the first round of interviews, no other officer had corroborated Officer

Greene's allegation. IAD then began calling officers back for repeated rounds of

additional interviews. In these interrogations, IAD told the officers they were looking

for "the truth." Curious about IAD's conduct, Richard Barry and Andrew Leonard,

the attorneys representing the various officers, including Moran, inquired of Captain

Nocchiero what IAD thought was "the truth." Nocchiero said that he could not
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answer the question, and then walked out of his office. He returned shortly, and

ushered the two attorneys into Chief Henderson's office. Concerned with potential

conflicts of interest, Barry asked Chief Henderson who he wanted. Chief Henderson

stated, "I want the sergeant." Barry then asked, "which sergeant?" According to

Barry, Henderson replied "the white sergeant." Barry and Leonard were certain that

Henderson was focusing on Moran. Leonard was convinced that Chief Henderson

was driving the internal investigation. Henderson made clear to the attorneys that

officers changing their statements would not lose their jobs based on any

inconsistencies with their first statements. 

Among those interviewed was Officer Terrence DuPree. DuPree had been

present at the Bell beating, and had afterwards corroborated Booker's report on the

incident, purportedly encouraged to do so by Moran. When recalled for subsequent

interviews, DuPree was working the "overlay" shift, which runs from 6:00 p.m. to

2:00 a.m. Almost every morning for a week, after finishing his shift, he was required

to report to IAD, where he was left to sit without being interviewed by anyone, at

times while his attorney spoke with Chief Henderson and IAD officers. Having seen

Chief Henderson's statement to the media–which occurred prior to completing the

investigation–Officer DuPree knew that the Department had committed itself to

punishing a wrongdoer. In this regard, DuPree, who testified he had been at the

scene, expressed concern to his wife regarding Chief Henderson's vow to punish

wrongdoers. He further testified that this caused him personal concern. He also got

the strong impression through the "rumor mill" that the Department was after Moran.

DuPree again spoke with IAD on May 8, 1997. At trial, DuPree testified that on that

date he enhanced his initial statement for fear of losing his job. In that May 8

statement, DuPree implicated Moran in striking Bell with his ASP baton, but also

stated that Moran had not acted with improper or excessive force.

After receiving Officer DuPree's May 8th statement, Chief Henderson

suspended Moran without pay. Moran was ultimately formally accused of having

assaulted Bell by striking him with an ASP baton and by spraying mace in his face,
3

Although the trial court excluded this memorandum from evidence, its

contents were broadly discussed at trial.

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both after Bell had ceased resisting. On May 16, 1997, the Metropolitan Police

Department Bureau of Professional Standards charged Moran with assault, use of

excessive force with an ASP baton, and use of excessive force with mace. Chief

Henderson and Major Hawkins signed off on these administrative charges. On June

5, 1997, Moran was indicted by a grand jury on criminal charges of felony assault,

misdemeanor assault and conspiracy to hinder prosecution. Moran was allowed to

voluntarily surrender himself to the police department and was arrested. After

booking, he was released. 

The charges against Moran were assigned to Assistant Circuit Attorney

Douglas Pribble. After reviewing the evidence, Pribble wrote a memorandum3

 to

Circuit Attorney Joyce-Hayes which detailed the inconsistencies between the various

officers' statements, thoroughly discredited Greene's statements, and demonstrated

how the evidence not only failed to build a case against Moran, but in fact tended to

exonerate him. The prosecution proceeded, and Pribble subsequently left the circuit

attorney's office.

In May of 1998, a jury acquitted Moran of all criminal charges. On May 22,

1998, the St. Louis Post-Dispatch reported that the Police Department had reached

a $250,000 settlement with the Bell family. The paper reported it believed this to be

the largest settlement ever paid by the Department. On May 18, 1998, one year after

the Bureau of Professional Standards had first filed its administrative charges against

Moran, and two weeks before his administrative hearing, a fourth charge of failure

to properly exercise his duties as a police sergeant was added against him. This

additional charge was also authorized by Major Hawkins and Chief Henderson.

Moran's administrative hearing occurred on June 4 and 5, 1998, and July 14,

15, 16, 28, 29 and 31, 1998. At this hearing, several witnesses favorable to Moran
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who had testified for him at his criminal trial asserted their Fifth Amendment

privilege and declined to testify. They did so because shortly before the hearing

began they had been informed that they were the targets of additional internal

procedures. The hearing officer ultimately recommended acquittal on the assault and

excessive force charges. However, he recommended sustaining the fourth charge on

the grounds that Moran directed Booker to file a false report regarding the Bell

beating. The Board of Police Commissioners accepted the first three

recommendations. The Board also accepted the fourth recommendation but sustained

the charge on wholly different grounds. The Board concluded that while it could not

tell who beat Gregory Bell, or when or how, it was certain that some beating occurred

after Bell had been subdued. The Board further concluded that Moran had been in

charge at that time. The Board therefore found Moran guilty of failure to properly

exercise his duties by failing to prevent the purported illegal beating. As punishment,

the Board enforced the earlier suspension without pay and demoted Moran. As

provided under Missouri law, Moran appealed this process to the Missouri Circuit

Court for the City of St. Louis which affirmed the Police Board's action. 

In late 1998 and early 1999, the Department meted out suspensions of one to

five days to various officers for conduct related to the Bell incident, including failure

to report misconduct, false reporting, and improper performance of duty. No officer,

however, was ever punished for assaulting Bell.

Moran sued the defendants under 42 U.S.C. § 1983, alleging that they

conspired to and did violate his right to substantive due process under the Fourteenth

Amendment. He also alleged a state law malicious prosecution claim. This litigation

does not revisit his acquittal of criminal wrongdoing. Rather, it questions the

defendants' investigation into Moran's conduct, and the ensuing criminal and

administrative procedures and prosecutions.

Prior to trial, Moran was denied numerous items of discovery under assertions

of privilege. Both prior to and at trial, the district court excluded various items of
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evidence Moran sought to or did offer. After presentation of Moran's case, as earlier

indicated, the district court granted defendants' motion for judgment as a matter of

law. Moran now appeals these rulings. He also appeals the district court judge's

refusal to recuse himself after Moran discovered that the district court judge had a

close social relationship with one of the named defendants.

II. DISCUSSION

A. Substantive Due Process

We start with the district court's disposition of this case. A district court may

grant a motion for judgment as a matter of law once a party has been fully heard on

an issue if the party has failed to establish any legally sufficient evidentiary basis for

a reasonable jury to find for the party on that issue. Fed. R. Civ. P. 50(a)(1). Such

a ruling is appropriate only "when all the evidence points one way and is susceptible

of no reasonable inferences sustaining the position of the non-moving party."

Ehrhardt v. Penn Mut. Life Ins. Co., 21 F.3d 266, 269 (8th Cir. 1994) (quotation

omitted). We review a grant of a judgment as a matter of law de novo. Heintzelman

v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997). In doing so we do not weigh the

evidence, but draw all factual inferences in favor of the nonmoving party. Lytle v.

Household Mfg., Inc., 494 U.S. 545, 554 (1990).

Moran alleged that the defendants conspired to and did violate his federally

secured rights in violation of 42 U.S.C. § 1983. The Fourteenth Amendment

guarantees "[s]ubstantive due process[, which] prevents the government from

engaging in conduct that shocks the conscience or interferes with rights implicit in

the concept of ordered liberty." Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir.

1998) (en banc). To that end, the Fourteenth Amendment prohibits "conduct that is

so outrageous that it shocks the conscience or otherwise offends 'judicial notions of

fairness, [or is] offensive to human dignity.'" Id. (quoting Weimer v. Amen, 870 F.2d

1400, 1405 (8th Cir. 1989)) (alteration in original). Moran also alleged a malicious
4

The district court entertained only the briefest of oral arguments on the

defendants' motion before granting it. The district court apparently wrapped the

malicious prosecution claim and the section 1983 claim together, hearing argument

only as to the former, yet applying the same standard to both. In a one-page order,

the district court, without explanation, dismissed all of Moran's claims. As a matter

of procedure, the district court should have articulated grounds for this decision. See

Dominium Mgmt. Servs. Inc. v. Nationwide Housing Group, 195 F.3d 358, 366 (8th

Cir. 1999).

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prosecution claim, which arises under Missouri law upon a showing that a defendant

initiated or continued a prosecution without probable cause. King v. Ryals, 981

S.W.2d 151, 154 (Mo. Ct. App. 1998). The district court acted correctly only if the

evidence Moran introduced , viewed in a light most favorable to him, failed to create

any legally sufficient evidentiary basis for a reasonable jury to find for him on any of

his claims. See Lytle, 494 U.S. at 554-55. After a thorough review of the record, we

find the district court erred.4

"In determining whether a substantive right protected by the Due Process

Clause has been violated, it is necessary to balance 'the liberty of the individual' 'and

the demands of an organized society.'" Youngberg v. Romeo, 457 U.S. 307, 320

(1982) (citations omitted). Whether a substantive due process right exists is a

question of law. See id. at 321 (stating that "[i]f there is to be any uniformity in

protecting [individuals' liberty interests and relevant state interests], . . . balancing

[of the plaintiff's liberty interests against the relevant state interests] cannot be left to

the unguided discretion of a judge or jury"). However, subject to certain

presumptions, whether the plaintiff has presented sufficient evidence to support a

claimed violation of a substantive due process right is a question for the fact-finder,

here the jury. Cf. id. at 324-25. 

We concede that some of our previous cases may not have discussed with

sufficient clarity the consideration to be given the various elements of a substantive
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claim. Fortunately, we are also guided by more recent Supreme Court precedent as

we decide this dispute.

The facets of our endeavor do not occur in isolation. As we have recognized,

to decide this appeal, we must weigh "the individual's interest in liberty against the

State's asserted reasons for restraining individual liberty." Youngberg, 457 U.S. at

320. At the outset, we identify the individual liberty interests at stake and the

established demands of an organized society at issue. See id. at 321; see also

Albright v. Oliver, 510 U.S. 266, 271 (1994) (plurality opinion of Rehnquist, C.J.).

We then analyze, qualitatively, whether the interests asserted are sufficiently

important for substantive due process consideration. Ultimately, within this context,

we assess whether the government's contested actions are conscience shocking. See

County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (plurality opinion of

Souter, J.) . 

The Supreme Court has "always been reluctant to expand the concept of

substantive due process." Collins v. City of Harker Heights, 503 U.S. 115, 125

(1992). The Court also "exercise[s] the utmost care whenever . . . asked to break new

ground in this field." Washington v. Glucksberg, 521 U.S. 702, 720 (1997)

(quotations omitted). Still, the Supreme Court has, nonetheless, as noted by Judge

Richard Sheppard Arnold in his well reasoned dissent in Singleton v. Cecil, 176 F.3d

419, 431-32 (8th Cir. 1999), occasionally recognized a new liberty interest or

expanded, at least marginally, an existing right.

Although some precedent at least implies that even minor interests may be

actionable if government conduct is sufficiently arbitrary and outrageous, see, e.g.,

City of Chicago v. Morales, 527 U.S. 41, 53 (1999) (stating that "the freedom to loiter

for innocent purposes is part of the 'liberty' protected by the Due Process Clause of

the Fourteenth Amendment"); BMW of North America, Inc. v. Gore, 517 U.S. 559,

599 (1996) (Scalia, J., dissenting) (indicating that the majority had identified "a

'substantive due process' right against a 'grossly excessive' award"), we need not
5

By way of illustration, he listed the right to marry, Loving v. Virginia, 388

U.S. 1 (1967); to have children, Skinner v. Oklahoma, 316 U.S. 535 (1942); to direct

the upbringing and education of one's children, Meyer v. Nebraska, 262 U.S. 390

(1923); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use

contraception, id.; to bodily integrity, Rochin v. California, 342 U.S. 165 (1952); to

abortion, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833

(1992); and, perhaps, the right to refuse unwanted medical treatment, Cruzan v.

Director, Missouri Dep't of Health, 497 U.S. 261 (1990). Glucksberg, 521 U.S. at

720.

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answer that question today. Here, we deal with fundamental rights and interests

specifically identified by the Supreme Court.

Chief Justice Rehnquist, speaking in Glucksberg, states that "[t]he Due Process

Clause guarantees more than fair process, and the 'liberty' it protects includes more

than the absence of physical restraint." 521 U.S. at 719 (citing Collins, 503 U.S. at

125). "The Clause also provides heightened protection against government

interference with certain fundamental rights and liberty interests." Id. at 720

(emphasis added). The Chief Justice notes that, in addition to the specific freedoms

protected by the Bill of Rights, the "liberty" specially protected by the Due Process

Clause includes certain court-recognized fundamental rights.5

 

Judge Arnold points out in Singleton, that the Supreme Court in Meyer v.

Nebraska, 262 U.S. 390, 399 (1923), acknowledged a fundamental interest inherent

in the right to engage in any of the common occupations of life. 176 F.3d at 431. He

then notes Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S.

886 (1961), in this regard, wherein the plaintiff, a short-order cook, "was not deprived

of anything beyond that particular job, but all nine members of the [Supreme] Court

were nevertheless agreed that she was protected, in the substantive sense, from

conduct that was patently arbitrary." Singleton, 176 F.2d at 432.
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Moran offers evidence that he was investigated, prosecuted, suspended without

pay, demoted and stigmatized by falsely-created evidence and other defamatory

actions of the defendants. The Supreme Court has held that an individual has a right

in the course of employment to be free from an employer's stigmatizing conduct, at

least without an opportunity for a name-clearing response, Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 573 (1972), and, also, as just noted, to engage,

without unreasonable interference and harassment, in any of the common occupations

of life, Meyer, 262 U.S. at 399. We believe this includes police work–indeed,

perhaps, specific police work. See, e.g., McElroy, 367 U.S. at 896; see also Winegar

v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 900 (8th Cir.) (indicating that

an employee can have a protected interest in a benefit, such as a particular assignment

or duty station, if he legitimately expects to continue in that assignment), cert. denied,

513 U.S. 964 (1994).

Perhaps more importantly, according to the evidence, the adverse employment

actions may have been undertaken by the defendants, at least in part, because Moran

is white. Equal protection is, of course, one of the fundamental freedoms specifically

protected by the Bill of Rights. U.S. Const. amend. XIV, § 1. Singling out an

individual for investigation or punishment because of race is suspect. See, e.g.,

Regents of the University of California v. Bakke, 438 U.S. 265, 305, 307 (1978)

(stating that "[w]hen a classification denies an individual opportunities or benefits . . .

because of his race . . . it must be regarded as suspect," and that "[p]referring

members of any one group for no reason other than race . . . is discrimination for its

own sake"). In order to justify use of a suspect classification, such as race, the

government must show that its purpose is both constitutionally permissible and that

use of the classification is necessary to safeguard its interest. Id. at 305.

The record on appeal does not clearly set forth the race of the various parties

and participants, including the police officers who were more clearly involved in the

striking of Mr. Bell but who were penalized, at most, by the imposition of one- to

five-day suspensions. However, these details may have been obvious to the jury as
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the various parties and witnesses appeared at trial. This information, if available to

the fact-finder, may prove to be relevant in the balancing of individual interests

against the demands of organized society.

Although Glucksberg involved legislative action, we are also guided by Justice

Kennedy's concurring opinion in Lewis–a concurrence apparently necessary for a

court majority on the plurality's holdings on actionable interests. There, Justice

Kennedy, joined by Justice O'Connor, dealt with executive action and noted that an

"interest protected by the text of the Constitution" is sufficient to support substantive

due process analysis. Lewis, 523 U.S. at 856 (plurality opinion of Kennedy, J.). We

are, therefore, comfortable in holding that the interests asserted by Moran are

sufficient to support substantive inquiry.

However, before proceeding further, we must also consider the principle that

if "'a particular 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.'" Lewis, 523 U.S. at 842 (plurality opinion of Souter, J.) (quoting

Albright, 510 U.S. at 273 (plurality opinion of Rehnquist, C.J.)). In Albright, a

plurality of the Court determined there was no substantive due process right arising

from malicious prosecution, but did not rule out the possibility of bringing such

claims under the auspices of the Fourth Amendment. 510 U.S. at 271, 274-75.

However, in Lewis, a plurality pointed out that:

[Not] all constitutional claims relating to physically abusive government

conduct must arise under either the Fourth or Eighth Amendments;

rather, [relevant precedent] simply requires that if a constitutional claim

is covered by a specific constitutional provision, such as the Fourth or

Eighth Amendment, the claim must be analyzed under the standard

appropriate to that specific provision, not under the rubric of substantive

due process.
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523 U.S. at 843 (quotations and citation omitted). Accordingly, when a person is

damaged by outrageous police misconduct but the resulting injury does not neatly fit

within a specific constitutional remedy, the injured party may, depending upon the

circumstances, pursue a substantive due process claim under section 1983. See id.

at 844 (citing, e.g., Evans v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996); Pleasant v.

Zamieski, 895 F.2d 272, 276 n.2 (6th Cir. 1990)). 

In Albright, an informant of questionable reliability misidentified John

Albright, Jr., as a seller of cocaine. Albright v. Oliver, 975 F.2d 343, 344-45 (7th Cir.

1992). After the defendant detective realized that Albright was not likely to have

committed the offense of which he was accused, the detective pursued Albright's

sons. Id. at 344. The detective discovered that one son, John David Albright, could

not have committed the offense because he was in another state at the time the

informant said the crime transpired. Id. He then pursued a second son, plaintiff

Kevin Albright. Id. The detective made no effort to corroborate the unsubstantiated

accusation of the informant, despite the informant's initial misidentification having

cast grave doubt on the accuracy of her information, and despite the fact that of fifty

individuals she had accused of trafficking drugs, none had been successfully

prosecuted. Id. at 345. Kevin Albright was charged and a warrant was issued for his

arrest but he learned of the warrant and turned himself in to law enforcement

authorities. Id. at 344. Although the Seventh Circuit acknowledged that arresting a

person on such "scanty grounds . . . is shocking," id. at 345, the Supreme Court

determined that such pretrial deprivations were better addressed under the Fourth

Amendment and not substantive due process, 510 U.S. at 274-75. 

Unlike the facts of Albright, Moran, in his due process claim, offers evidence

of a purposeful police conspiracy to manufacture, and the manufacture of, false

evidence. Instead of simply allowing a weakly supported prosecution to proceed,

Moran correctly asserts that the evidence can be read to show acts designed to falsely

formulate a pretense of probable cause. Although the Fourth Amendment covers

seizures, which would be satisfied by Moran's arrest, law enforcement's intentional
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creation of damaging facts would not fall within its ambit. Cf. Albright, 510 U.S. at

274-75; Rogers v. City of Little Rock, 152 F.3d 790, 796 (8th Cir. 1998) (stating that

the violation there was "different in nature from one that [could] be analyzed under

the fourth amendment reasonableness standard" because "[n]o degree of sexual

assault by a police officer acting under color of law could ever be proper"). Here,

we see no specifically applicable constitutional remedy that provides Moran with

explicit protection to a level sufficient to exclude substantive due process analysis.

Finally, we must consider the universe of executive abuses that shock the

conscience and violate the decencies of a civilized society. See Lewis, 523 U.S. at

846-47. Although acts arising out of a defendant's deliberate indifference will not

sustain a substantive due process claim, "conduct intended to injure in some way

unjustifiable by any government interest is the sort of official action most likely to

rise to the conscience-shocking level." Id. at 849.

In striking the substantive due process balance, the question "is not

simply whether a liberty interest has been infringed but whether the

extent or nature of the [infringement] . . . is such as to violate due

process." It is a question of degree. In general, substantive due process

"is concerned with violations of personal rights . . . so severe . . . so

disproportionate to the need presented, and . . . so inspired by malice or

sadism rather than a merely careless or unwise excess of zeal that it

amounted to a brutal and inhumane abuse of official power literally

shocking to the conscience."

In re Scott County Master Docket, 672 F. Supp. 1152, 1166 (D. Minn. 1987)

(alterations in original) (citations omitted). 

At first glance, it might appear that the demands of an organized society in this

case would list toward the serious business of weeding out police abuses like those

of which Moran was accused. Thwarting and punishing police brutality certainly

weighs heavily and lies at the heart of our system of justice, if it is indeed to be one

of meting out justice. However, here the substantive due process claim alleges
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actions not based on so pure a motive. Accordingly, we are prompted to weigh

Moran's constitutionally important liberty interests against evidence that officials

purposely conspired to manufacture evidence in order to make him an innocent

scapegoat for a devastating travesty that embarrassed the police department and its

managers, and evidence that the executive actions may have been partially undertaken

to protect other, more favored, employees in the department.

Viewing the record in the appropriate light, Moran established a plausible case

for each of his contentions. He introduced evidence that tends to show a police

department that publicly and financially committed itself to producing a culprit for

an alleged wrongdoing before any such wrongdoing was actually established. He

produced proof of questionable procedures, of pressures placed on officers to

incriminate a specific person or corroborate the department's official line, of a hasty

condemnation of Moran and of improper consideration of his race. Moreover, he

offered proof that, at various times, certain defendants purposely ignored evidence

that strongly tended to exonerate him. In short, drawing all inferences in his favor,

a reasonable jury could conclude that some or all of the defendants intentionally set

up an innocent Moran for patently arbitrary reasons.

On the other hand, it may well be that learning of a brutal beating, Chief

Henderson drew a reasonable conclusion that wrongdoing had occurred, and that

under the circumstances, given Barry Greene's statement, and facing a "blue wall of

silence," the Chief and IAD acted reasonably. A jury might also conclude that

treatment of DuPree was reasonable under the circumstances, that he was not

pressured to implicate Moran, and that his concern was self-imposed. It may also be

that many of the operative decisions lay not in the hands of the defendants but with

the prosecuting attorney. Such questions, however, along with whether a hint of

probable cause existed, depend on interpretation of the evidence, the drawing of

inferences and evaluation of witness credibility. These remain the province of the

jury. Accordingly, we remand for a new trial. See Youngberg, 457 U.S. at 325.
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B. Recusal

We turn next to the recusal question. At her deposition, Board member AnneMarie Clarke disclosed that she and the district court judge know each other socially.

She admitted having known the judge for over twenty-one years. She testified that

over the years they had visited one another's homes on various occasions. Clarke also

testified that she, the district judge, and her co-defendant Wayman Smith appeared

at the same social events. Given these discoveries, Moran made a motion for recusal,

which the district court denied without comment. Moran appeals this decision.

We commit the recusal decision to the sound discretion of the district court,

and review that decision only for abuse of discretion. In re Kansas Pub. Employees

Retirement Sys., 85 F.3d 1353, 1358 (8th Cir. 1996) [hereinafter In re KPERS]. A

judge "shall disqualify himself in any proceeding in which his impartiality might

reasonably be questioned." 28 U.S.C. § 455(a). This restriction is intended to

"promote public confidence in the integrity of the judicial process." Liljeberg v.

Health Servs. Acquisition Corp., 486 U.S. 847, 859-60 (1988). Whether a judge

actually has a bias, or actually knows of grounds requiring recusal is

irrelevant–section 455(a) sets an objective standard that does not require scienter. Id.

at 859-60. We have recast the issue as "whether the judge's impartiality might

reasonably be questioned by the average person on the street who knows all the

relevant facts of a case." In re KPERS, 85 F.3d at 1358.

By enacting section 455(a), Congress sought to eradicate not only actual, but

also the appearance of impropriety in the federal judiciary. See Liljeberg, 486 U.S.

at 860. To that end, Congress permitted parties to waive such ground for

disqualification after full disclosure on the record. 28 U.S.C. § 455(e). Thus, where

judges have fully disclosed potential conflicts and have then retained their mandate

in a case, we have been solicitous of their discretion. In In re KPERS, for instance,

the district court immediately informed the parties when a potential conflict arose,

and disqualified himself from a decision involving those parties. 85 F.3d at 1355.
-18-

Moreover, knowing of potential conflicts, the parties passed up opportunities to

object. Id. at 1356. There, we affirmed the district court judge's refusal to recuse

himself. Id. at 1358.

It is true that "[a]n unfavorable judicial ruling . . . does not raise an inference

of bias or require the trial judge's recusal." Harris v. Missouri, 960 F.2d 738, 740 (8th

Cir. 1992) (declining to accept judge's refusal to accept a plea agreement as evidence

of bias); accord Holloway v. United States, 960 F.2d 1348, 1350-51 (8th Cir. 1992)

(holding that granting a reduced sentence to one but not another defendant, and being

friends with another judge who allegedly "harbored a bias" against defendant, were

not grounds for finding bias). However, the inquiry whether a reasonable person,

knowing all the relevant facts, would discern potential impropriety certainly warrants

consideration of a judge's course or pattern of rulings, and also of the judge's course

of conduct.

We are troubled by the record in this case. The district judge's appearances at

the same social events as Clarke and Smith brooks little mention. Judges, attorneys

and public officials will often share public appearances. This does little to create the

appearance of impropriety. The social relationship, however, invites more scrutiny.

The image of one sitting in judgment over a friend's affairs would likely cause the

average person in the street to pause. That the judge and Clarke enjoyed a friendship

of sufficient depth and duration as to warrant several reciprocal visits to one another's

homes only exacerbates the problem. We find particularly worrisome the district

court's failure to disclose this conflict himself, as permitted by section 455(e).

Moreover, the record suggests a fractious relationship between the district court and

Moran's attorneys. We do, however, have the utmost faith in the district court's

ability to rule impartially, and have imposed on ourselves an obligation to reverse a

district court only where we can say with certainty that it has abused its discretion.

Accordingly, rather than remand to a different judge, we remand this question to the

district court with the suggestion that it revisit and more thoroughly consider and

respond to Moran's recusal request.
-19-

C. Evidentiary Rulings

Moran next appeals various evidentiary rulings. We review a district court's

evidentiary decisions for abuse of discretion. Radecki v. Joura, 177 F.3d 694, 696

(8th Cir. 1999). In order to warrant that review, however, a party must properly

preserve an issue below with an offer of proof unless the evidence was excluded

pursuant to a motion in limine. Fed. R. Evid. 103(a). Additionally, an issue must be

presented here in a meaningfully developed manner. Bratton v. Roadway Package

Sys., Inc., 77 F.3d 168, 173 n.1 (7th Cir. 1996).

Moran appeals different exclusions with varying degrees of specificity. Were

it not for our disposition of the first issue above, we would not likely reach many of

his more elliptical arguments. However, our remand for a new trial wipes the

evidentiary slate clean and permits Moran to reargue the admissibility of each item

to the district court. We therefore decline to take up each ruling separately.

We do note, though, for clarity on remand, that were we to reach Moran's

arguments we would likely find error with at least some of the district court's rulings.

The district court first excluded significant amounts of evidence on the basis that it

ran to the issue of whether Moran was actually innocent. We agree that evidence

probative solely for that purpose would be irrelevant to the questions of whether

probable cause existed for a prosecution and whether the defendants' conduct was

sufficiently shocking. However, some of the evidence the district court excluded, for

instance whether Chief Henderson was ever aware of the analysis of the 911

dispatcher tape recordings, seems probative both to prove Moran's innocence and also

to establish the very questions at issue in this case. Such evidence should have been

received.

The district court also excluded evidence on the grounds that it related solely

to the administrative charges brought against Moran and appealed by him to the

Missouri state courts. The district court ruled that evidence relating to those charges
-20-

should be excluded because those claims were subject to a res judicata defense. As

we are remanding for a new trial, the district court will also have an opportunity to

revisit these rulings. We pause only to note that whether a claim is precluded in a

particular instance does not dispose of the question of whether evidence relating to

that claim is relevant or irrelevant to another more current dispute.

D. Discovery Rulings

Moran also appeals the district court's refusal to order defendants to produce

two types of documents–IAD investigative reports and the minutes of closed Board

meetings. To protect the former, the defendants assert governmental and work

product privileges. As to the latter, they assert the attorney-client privilege. Moran

asserts the district court erred in sustaining these claims of privilege, or should at

least have undertaken an in camera review of the purportedly privileged documents.

We review a district court's discovery rulings for abuse of discretion. Bunting

v. Sea Ray, Inc., 99 F.3d 887, 890 (8th Cir. 1996). We will grant a new trial on the

basis of erroneous discovery errors only where the errors "amount to a gross abuse

of discretion resulting in fundamental unfairness." Id. Our review is thus both

narrow and deferential. Id. We similarly rely heavily on the district court's discretion

in deciding whether to conduct an in camera review. United States v. Phillips, 854

F.2d 273, 277 (7th Cir. 1988). Having reviewed the record, we cannot say that the

district court abused its discretion to such a degree as to warrant a new trial.

However, we have already determined that this matter should be remanded for a new

trial on other grounds. As with the evidentiary rulings discussed above, the district

court will be able to revisit these rulings upon Moran's motion. On appeal, however,

Moran has not stated a case sufficiently compelling to persuade us that the district

court committed error in not conducting an in camera review.
6

We have analyzed in detail only the federal constitutional issue. This was

done for two reasons. The state malicious prosecution claim was considered by the

district court almost entirely in the context of the federal due process claim. See ante

n.4. Without continuing jurisdiction under 28 U.S.C. § 1331 or 1332, the district

court had broad discretion to terminate the state claim. See 28 U.S.C. § 1367(c)(3).

The district court did not reach the defendants' qualified immunity defense. Upon

remand, we direct the district court to further evaluate all claims and defenses

consistent with this opinion.

-21-

III. CONCLUSION

This matter is reversed and remanded to the district court for further

proceedings consistent with this opinion.6

BYE, Circuit Judge, concurring.

I join the majority opinion in full. I write simply to make explicit what I

believe is implicit in the court’s decision. In Singleton v. Cecil, 176 F.3d 419, 424-25

& n.7 (8th Cir. 1999) (en banc), Riley v. St. Louis County, 153 F.3d 627, 631 (8th

Cir. 1998), Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (en banc), and

other cases, we confused two elements of a plaintiff’s substantive due process claim

based upon executive action with two distinct theories of recovery. Our distinction

can no longer be maintained in the face of the Supreme Court’s most recent

substantive due process decisions.

In County of Sacramento v. Lewis, the Court held that all substantive due

process claims against executive officials proceed under one theory, not two separate

theories. 523 U.S. 833, 847 n.8 (1998). In every case in which a plaintiff challenges

the actions of an executive official under the substantive component of the Due

Process Clause, he must demonstrate both that the official’s conduct was conscienceshocking, id., and that the official violated one or more fundamental rights that are

“deeply rooted in this Nation’s history and tradition, and implicit in the concept of
-22-

ordered liberty, such that neither liberty nor justice would exist if they were

sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (internal

citations and quotations omitted); see Lewis, 523 U.S. at 847 n.8 (“Only if the

necessary condition of egregious behavior were satisfied would there be a possibility

of recognizing a substantive due process right to be free of such executive action, and

only then might there be a debate about the sufficiency of historical examples of

enforcement of the right claimed, or its recognition in other ways.”); Hawkins v.

Freeman, 195 F.3d 732, 738 & n.1 (4th Cir. 1999) (en banc); Morris v. Dearborne,

181 F.3d 657, 668 (5th Cir. 1999); Robert Chesney, Old Wine or New? The Shocksthe-Conscience Standard and the Distinction Between Legislative and Executive

Action, 50 Syracuse L. Rev. 981, 992-93, 997-99 (2000).

The majority ably explains that Thomas Moran produced proof sufficient to

avoid a directed verdict as to both elements. As to conscience-shocking government

conduct, Moran “introduced evidence that tends to show a police department that

publicly and financially committed itself to producing a culprit for an alleged

wrongdoing before any such wrongdoing was actually established.” Ante at 16. As

to the fundamental rights analysis, the majority properly concludes Moran may have

been deprived of important interests in his job and his good name, perhaps on the

basis of his race. Ante at 11-13. I therefore join with the majority in reversing the

district court’s hasty decision to grant the defendants judgment as a matter of law.

RILEY, Circuit Judge, concurring.

The majority opinion, the dissent, and Judge Bye have each presented excellent

reasoning for their opinions. Because I believe this difficult case should be presented

to a jury for resolution, I join the judgment of the majority opinion in reversing the

district court's decision.

A judgment as a matter of law is "appropriate only when all of the evidence

points one way, and is susceptible of no reasonable inference sustaining the jury's
-23-

verdict." See Kipp v. Missouri Highway & Transp. Comm'n, 280 F.3d 893, 896 (8th

Cir. 2002) (citation omitted). Since I believe the district court and the dissent have

weighed the evidence, made determinations based on the credibility of witnesses and

not drawn all reasonable factual inferences in favor of Moran, I concur with the

majority opinion's conclusions.

I further join in Judge Bye's clarification and the dissent's reasoning that a

substantive due process action must prove both conscience shocking conduct by the

official and that such conduct violated one or more deeply rooted, fundamental rights

of our Nation. See County of Sacramento v. Lewis, 523 U.S. 833, 846-47 & n.8

(1998).

LOKEN, Circuit Judge, with whom McMillian, Wollman, and Murphy, Circuit

Judges, join, dissenting.

This case aptly illustrates the old adage, “hard cases make bad law.” Faced

with a partial trial record revealing an internal investigation that wounded the career

and reputation of a police officer ultimately found innocent of the most serious

wrongdoing, the court concludes that the officer has viable substantive due process

and malicious prosecution claims against his investigators. I conclude, to the

contrary, that the district court correctly granted defendants judgment as a matter of

law at the close of Sergeant Moran’s case. Accordingly, I respectfully dissent.

I. Substantive Due Process.

The panel reversed the district court on the ground that Moran’s trial evidence

raised a jury issue as to “whether the defendants’ conduct was so wrongful as to

shock the conscience.” 247 F.3d at 805. We granted rehearing en banc because that

ruling reflected two errors of law. First, as Judge Bye’s concurring opinion explains,

proof that government misconduct is conscience-shocking does not suffice. To

prevail on a substantive due process claim based upon executive action, plaintiff
-24-

“must demonstrate both that the official’s conduct was conscience-shocking . . . and

that the official violated one or more fundamental rights that are ‘deeply rooted in this

Nation’s history and tradition, and implicit in the concept of ordered liberty, such that

neither liberty nor justice would exist if they were sacrificed.’” Ante pp. 21-22,

quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Second, whether

the conduct was “so wrongful as to shock the conscience” is not a jury question. To

ensure that substantive due process does not become a “font of tort law,” County of

Sacramento v. Lewis, 523 U.S. 833, 848 (1998), the government misconduct at issue

“must ‘shock the conscience’ of federal judges.” Collins v. City of Harker Heights,

503 U.S. 115, 126 (1992). 

A. Fundamental Protected Rights. The Supreme Court in Lewis said that

“the threshold question” in a substantive due process case is whether the conduct at

issue shocks the conscience. 523 U.S. at 847 n.8. But in Lewis, plaintiffs’

fundamental interest was clear -- their decedent had died in a high-speed police chase.

The issue was the standard by which the pursuing police officers’ conduct should be

measured. Because context is so important to due process analysis, I think it useful

in this case to focus first on whether Moran has alleged the violation of a fundamental

liberty interest which is “objectively, deeply rooted in this Nation’s history and

tradition, and implicit in the concept of ordered liberty.” 

As the court appears to recognize, proper analysis of this issue must begin with

a “careful description of the asserted fundamental liberty interest” at stake.

Glucksberg, 521 U.S. at 721. Moran’s briefs to the panel paid no attention to this

issue, relying instead on the erroneous assertion that only conscience-shocking

misconduct need be proved. We invited further briefing of the issue in our order

granting rehearing en banc. Moran filed a supplemental brief again arguing that proof

of conscience-shocking executive conduct, without more, establishes a substantive

due process violation. Alternatively, Moran asserted that his “fundamental

constitutional liberty in his job and reputation and standing in the community . . . is

sufficient to invoke substantive due process.” 
-25-

The difficulty with this contention is that it is contrary to controlling Supreme

Court precedent. In Albright v. Oliver, 510 U.S. 266 (1994), no fewer than seven

Justices agreed, though on different grounds, that a substantive due process claim will

not lie for “prosecution without probable cause,” id. at 271 (plurality opinion), or for

“malicious initiation of a baseless criminal prosecution,” id. at 281 (Kennedy, J.,

concurring). See also Baker v. McCollan, 443 U.S. 137, 142-46 (1979). The Court

has repeatedly stated there is no fundamental, historical right to continuing

employment as a police officer -- “government employment, in the absence of

legislation, can be revoked at the will of the appointing officer.” Cafeteria Workers

v. McElroy, 367 U.S. 886, 896 (1961) (citing numerous cases); see Bishop v. Wood,

426 U.S. 341, 349-50 & n.13 (1976). And this court has agreed with other circuits

that “occupational liberty . . . is not protected by substantive due process.” Singleton

v. Cecil, 176 F.3d 419, 428 (8th Cir. 1999) (en banc) (quotation omitted). 

In finding a liberty interest protected by substantive due process, the court

simply brushes these controlling authorities aside without mention. First, the court

relies on a portion of the lead opinion in City of Chicago v. Morales, 527 U.S. 41, 53

(1999), in which only three Justices joined, ignoring the Court’s explicit statement

that its decision was not based on substantive due process grounds. Id. at 64 n.35.

Next, the court gives a statement in Meyer v. Nebraska, 262 U.S. 390, 399 (1923) --

that the freedom “to engage in any of the common occupations of life” is a liberty

interest protected by the Due Process Clause -- weight the Supreme Court has

expressly said it will not bear. See Conn v. Gabbert, 526 U.S. 286, 291 (1999);

Singleton, 176 F.3d at 426 n.8 (this liberty interest is “afforded substantive due

process protection only when the government completely prohibits, rather than briefly

interrupts, a person from engaging in his desired occupational field.”). Then, the

court uses procedural due process cases as establishing a fundamental interest in

government employ protected by substantive due process. By citing procedural due

process cases such as Cafeteria Workers v. McElroy; Board of Regents v. Roth, 408

U.S. 564, 558-60 (1972); and Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20

F.3d 895 (8th Cir.), cert. denied, 513 U.S. 964 (1994), for the proposition that Moran
-26-

has a fundamental liberty interest in his employment, the court erroneously equates

the property and liberty interests that entitle a public employee to procedural due

process -- interests frequently established by state law -- with the fundamental liberty

interests required to trigger substantive due process protection. The Supreme Court

treats the two liberty concepts as distinct, with the substantive due process concept

being far narrower. See Harrah Ind. Sch. Dist. v. Martin, 440 U.S. 194, 197-98

(1979); Paul v. Davis, 424 U.S. 693, 710-13 (1976); Roth, 408 U.S. at 558-59 n.12.

Likewise, the court’s reference to an employee’s right “to be free from an employer’s

stigmatizing conduct” is insufficient. While marring a public employee’s reputation

or standing in the community may trigger a procedural due process right to nameclearing process, “it is well established that defamation or injury to reputation by

itself does not state a constitutional deprivation.” Brayman v United States, 96 F.3d

1061, 1066 (8th Cir. 1996). 

Finally, attempting to locate a fundamental liberty interest where none is to be

found, the court introduces possible racial bias by Chief Henderson into the equation,

when Moran neither pleaded an equal protection claim nor alleged in his complaint

that any defendant’s conduct was racially motivated. It is improper for an appellate

court to reverse the dismissal of claims because the evidence might have supported

an unpleaded claim. Moreover, the court’s analysis is flawed on its merits. The court

cites testimony by Richard Barry, one of Moran’s attorneys, that Henderson said

during a meeting, “I want the white sergeant.” Not only did Chief Henderson deny

making the statement, but Andrew Leonard, an attorney present at the meeting

representing other police officers under investigation, was called as a witness for

Moran and testified on cross and redirect examination:

Q [by defense counsel]. Did you ever hear [Chief Henderson] say I want

the white sergeant.

A. I don’t remember. I don’t remember that.

* * * * *
-27-

Q [by counsel for Moran]. Let me clarify one point real quickly. you

testified under cross-examination that you didn’t hear the chief say

white sergeant. You didn’t remember hearing the chief?

* * * * *

A. I recall Sergeant Moran was clearly identifiable, whether it was by

name or by descriptive term. I don’t remember there being a racial

overtone to it.

Q. Everyone in the room knew that the chief meant Moran, correct?

A. Yes. Yes.

In my view, if an African-American police chief said, “I want the white sergeant,” in

a meeting held under these circumstances, an attorney for police officers under active

investigation for alleged use of excessive force against a mentally-impaired citizen

would surely recall that statement. The rule that we must view evidence in the light

most favorable to Moran does not warrant manufacturing an unpleaded claim of

reverse race discrimination from one scrap of testimony that has little or no

credibility. We may only draw reasonable inferences in favor of a nonmoving party.

See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

Moreover, even if Henderson made the statement, in light of attorney Leonard’s

testimony it is pure speculation to infer that racial prejudice improperly motivated the

chief’s conduct. A “reasonable inference” is “one which may be drawn from the

evidence without resort to speculation.” Fought v. Hayes Wheels Intern., Inc., 101

F.3d 1275, 1277 (8th Cir. 1996) (quotation omitted). 

In summary, Moran tried the case and the panel decided his appeal on the

mistaken assumption that proof of conscience-shocking misconduct establishes a

substantive due process violation. The en banc court now fails in its belated attempt

to find a fundamental historical interest entitled to substantive due process protection
-28-

under Supreme Court precedents and this court’s decision in Singleton. Therefore,

I would affirm the dismissal of Moran’s substantive due process claim on this ground.

B. Shocks the Conscience. To violate substantive due process, the

misconduct of government officials that violates a citizen’s fundamental rights must

be “so egregious, so outrageous, that it may fairly be said to shock the contemporary

conscience” of federal judges. Lewis, 523 U.S. at n.8. In adopting the conscienceshocking standard, the Court explained that it “duplicates no traditional category of

common-law fault, but rather points clearly away from liability, or clearly toward it,

only at the ends of the tort law’s spectrum of culpability.” Id. at 848. The Court also

emphasized that substantive due process, like procedural due process -

is to be tested by an appraisal of the totality of facts in a given case. That

which may, in one setting, constitute a denial of fundamental fairness,

shocking to the universal sense of justice, may, in other circumstances, and in

the light of other considerations, fall short of such denial.

Id. at 850, quoting Betts v. Brady, 316 U.S. 455, 462 (1942). Applying this standard,

I conclude defendants’ individual and collective conduct was not conscienceshocking in the constitutional sense. The following is a brief chronological review

of undisputed facts established by Moran’s case-in-chief at trial.

• On April 14, a mentally-impaired teenager was seriously injured in his own

home while resisting arrest by two police officers who mistook him for a burglar.

• Responding to witness allegations of an abusive police beating, and repeated

inquiries from the media, when Chief Henderson learned that Gregory Bell was

mentally challenged and not a burglar, he publicly apologized to the family for the

mistake. The court finds it shocking that Chief Henderson publicly apologized for

the beating of a young, mentally-impaired citizen being arrested as a burglar in his

own home. Given the potential for civil unrest inherent in such an incident, it would

be more shocking if the Chief of Police of a major city had not responded in this
-29-

manner. The court further concludes that Moran’s evidence “tends to show a police

department that publicly and financially committed itself to producing a culprit for

an alleged wrongdoing before any such wrongdoing was actually established.” Ante

p. 16. Here is the relevant testimony:

Q [by counsel for Moran]. You apologized for the police department to

that family and you promised that you would find out who was the

wrongdoer and punish him, didn’t you do that, Chief?

A. No, what I recall is I promised that we would do a thorough, efficient

and effective investigation and if there was any wrongdoing we would

take the appropriate action is what I said.

• Chief Henderson then involved himself personally in the ensuing Internal

Affairs investigation. Though no doubt unusual, it is hardly “questionable” for a

department head to become personally involved in a high-profile investigation into

police misconduct.

• In the first week after the incident, Officer Booker submitted a police report

that did not place Moran at the scene until Bell was brought outside the home. All

officers interviewed by the Internal Affairs investigators gave statements consistent

with this report.

• On April 19, Chief Henderson learned that Officer Barry Greene wished to

make a statement contradicting the police report. Henderson and Internal Affairs

officials met with Greene and heard him implicate Moran in the beating of Gregory

Bell. Henderson and the others then took Officer Greene to Circuit Attorney Dee

Joyce-Hayes, who heard Greene’s statement and took the matter to a grand jury,

which returned an indictment against Moran. 

• After hearing Greene’s contrary statement, Chief Henderson told attorneys

Barry and Leonard he did not believe the police report and the officers’ initial
-30-

statements corroborating that report. Henderson advised the attorneys that any officer

who told the truth in a second statement would not be disciplined if it contradicted

his initial statement. Officer DuPree, who had previously admitted to attorney

Leonard that his initial statement was untruthful in some respects, then gave a second

statement placing Moran at the scene during the melee but not hitting Bell. The court

describes this as evidence of “pressures placed on officers to incriminate a specific

person or corroborate the department’s official line.” Ante p. 16. The tactics strike

me as entirely appropriate probing by investigators faced with conflicting statements.

Significantly, every police officer who testified at trial said he was repeatedly told to

tell the truth, was not told what to say by any investigator or defendant, and did not

feel pressured to lie. This fell far short of a conscience-shocking investigation.

Compare Wilcox v. Ford, 813 F.2d 1140, 1146-48 (11th Cir. 1987). 

• Faced with conflicting statements by Greene and DuPree, the two officers

who placed Moran at the scene during some of the melee, and with numerous

statements by other officers exonerating Moran, Chief Henderson and the other

defendants left the criminal prosecution in the hands of the Circuit Attorney, who

pursued the prosecution through a trial while the Police Department pursued

administrative charges. Sergeant Moran was acquitted of the criminal charges, and

after a hearing, the Board of Police Commissioners acquitted him of all but one

administrative charge. Moran appealed; the Circuit Court for the City of St. Louis

affirmed the Police Board’s disciplinary action. 

Based on the evidence introduced by Moran at trial, I conclude he proved

nothing even approaching conscience-shocking misconduct by any defendant. Moran

was present during a tragic encounter between police and a young man who could not

explain his innocent behavior. Moran was accused by a fellow police officer of

participating in an unnecessary beating of that citizen. Facing these serious charges,

Moran had a right to procedural due process in the ensuing criminal and

administrative proceedings. He was afforded that right and was ultimately found not

guilty of using excessive force. The entire process was surely stressful, humiliating,
-31-

and expensive, and it is unfortunate that a public servant engaged in this hazardous

line of work should be required to defend himself in this fashion from charges that

prove to be unfounded. But as Chief Justice Rehnquist said in Baker v. McCollan,

443 U.S. at 145, “[t]he Constitution does not guarantee that only the guilty will be

arrested. If it did, § 1983 would provide a cause of action for every defendant

acquitted -- indeed, for every suspect released.” On the undisputed facts of this case,

procedural due process is all the protection the Due Process Clause affords. 

Moreover, even if I were to accept the unreasonable fact inferences the court

draws from this record, I would still conclude that Moran failed to present a

submissible case of conscience-shocking misconduct. The Supreme Court has

consistently “rejected claims that the Due Process Clause should be interpreted to

impose federal duties that are analogous to those traditionally imposed by state tort

law.” Collins, 503 U.S. at 128; see Shrum v. Kluck, 249 F.3d 773, 779 (8th Cir.

2001) (“[t]he purpose of [the shocks the conscience] fault standard is to distinguish

the constitutionally-based § 1983 liability from traditional tort law claims”); Marler

v. Missouri State Bd. of Optometry, 102 F.3d 1453, 1458 (8th Cir. 1996). Although

used sparingly, Missouri’s tort of malicious prosecution specifically protects its

citizens from the acts alleged by Moran to be conscience-shocking. The alleged

police misconduct -- engaging in a conspiracy to manufacture and use false testimony

to prosecute an innocent police officer -- is exactly the type of misconduct the tort of

malicious prosecution is designed to remedy. See Mershon v. Beasley, 994 F.2d 449,

453 (8th Cir. 1993). In these circumstances, it is inappropriate to find the conscienceshocking element necessary for a substantive due process violation. 

II. Malicious Prosecution.

To prove malicious prosecution under Missouri law, Moran must prove that

one or more defendants initiated or continued a prosecution without probable cause.

“The charge of malicious prosecution is no favorite of the law and when made the

elements necessary to sustain it must be strictly and clearly proven.” Harper v. St.
-32-

Joseph Lead Co., 233 S.W.2d 835, 838 (Mo. 1950). At trial, Moran introduced no

evidence tending to show that any defendant was responsible for the initiation or

continuation of his criminal prosecution. On the contrary, the evidence showed that

the decisions to seek an indictment and to initiate and pursue the prosecution rested

exclusively with the Circuit Attorney, Dee Joyce Hayes, who did not testify during

plaintiff’s case. “The return of an indictment by a grand jury is prima facie evidence

of probable cause in an action for malicious prosecution” which may be rebutted only

by “proof that the indictment was obtained by false or fraudulent testimony or by

other improper means, or that defendant procured the indictment believing plaintiff

to be innocent.” Harper, 233 S.W.2d at 839-40. Moran introduced no such evidence

at trial. Accordingly, the district court did not err in granting judgment as a matter

of law dismissing the malicious prosecution claim. 

The other issues raised by Moran on appeal are reviewed under the abuse of

discretion standard and in my view are without merit. For all of the aforementioned

reasons, I would affirm the district court and therefore respectfully dissent.

A true copy.

Attest:

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