No. 95-3418

David Eagle, * *

Plaintiff - Appellee, * * v. * * John D. Morgan, Individually and in his * official capacity as officer of the * Jonesboro Police Department; Donna * Bogard, Individually and in her official* capacity as officer of the Jonesboro * Police Department; David Allen, * Individually and in his official * Appeal from the United capacity as officer of the Jonesboro * States District Court Police Department; Terry Grooms, * for the Eastern Individually and in his official * District of Arkansas. capacity as officer of the Jonesboro * Police Department; Jack McCann, * Individually and in his official * capacity as officer of the Jonesboro * Police Department; Rohnny McDaniel, * Individually and in his official * capacity as officer of the Jonesboro * Police Department, * *

Defendants - Appellants, * * John Doe, an unknown person, * *

Defendant, * * City of Jonesboro, * *

Defendant - Appellant. *

Submitted: March 14, 1996 Filed: July 8, 1996

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Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

FLOYD R. GIBSON, Circuit Judge.
David Eagle filed this suit against the City of Jonesboro (th e "City") and various police officers employed by that municipality, seeking relief under 42 U.S.C . § 1983 (1994) and Arkansas tort law. The City and the officers presentl y appeal the district court's refusal to grant their motion for summary judgment. We reverse in part, dismiss in part, an d remand for further proceedings.

I. BACKGROUND

In 1987, Wayne Ridout, a businessmanfrom Searcy, Arkansas, informed local authorities tha t David Eagle had stolen enough lumber from Ridout's store to partially construct a new two-story home. Following a polic e investigation into the complaint, Eagle pleaded guilty in an Arkansas tria l court to felony theft of property. Eagle had no prior criminal record and entered his plea pursuant to an enactment that allows Arkansas judges to ind efinitely defer further proceedings and place first time felons on a tentative term of probation. See Ark. Code Ann. § 16-93-303(a)(1) (Michie Supp. 1996). If the defendant violates the requ irements of his probation, the judge may declare him guilty and impose the punishment otherwis e provided by law. Id . § 16-93-303(a)(2). On the other hand, the statute directs the court to dismiss the case and expunge the defendant's record if he "fu lfill[s] . . . the terms and conditions of probation or [is ] release[d] by the court prior to the termination period thereof." Id . § 16-93-303(b). Moreov er, these measures occur "without court adjudication of guilt." Id

.
The trial court accepted Eagle's plea and required him to

### The Arkansas General Assembly recently modified slightly 1 

### the effects of an expunged conviction and altered the procedure through which a criminal defendant may obtain an expungement order. Compare Ark. Code Ann. 16-90-902, -904 to -905 (Michie Supp. 1996) with Ark. Code Ann. 16-93-301, -303(b) (Michie 1987)(amended 1995). These changes in state law are immaterial to our disposition of this appeal.
3 spend forty-five days in the county jail, serve six years probation, and pay $25,000 in restit ution to Ridout. Approximately three years later, a state judge terminated Eagle's probation and entered an order expunging hi s crimin al record. The expungement decree expressly provided that i t "restor ed [Eagle] to [his] civil and constitutional rights as if [th e felony theft of property] had never been committed," and as a matter of la w it "comple tely exonerate[d] [Eagle] of any criminal purpose." Ark. Code 1
Ann. § 16-93-303(b)(2) (Michie 1987), amended byArk. Code Ann. § 16-93- 303(b) (Michie Supp. 1996). Additionally, the state legislature ha s decreed that an expunged record should be treated as confidential an d released only to the individual whose record was expunged and, in certain circumstances, to judicial or law enforcement personnel. Ark. Code Ann. § 16-90-903 (Michie Supp. 1996).

After the state court struck the felony theft of property fro m Eagle's record, he began working as an auditor for the City. In the cours e of his employment, Eagle performed an audit of certain Jonesboro Polic e Depart ment ("JPD") records and conducted a police salary survey t o determ ine whether local officers were receiving competitive wages. Th e fruits of Eagle's labor, however, apparently displeased some la w enforcement workers; several curious officers accessed the National Crime Informa tion Center ("NCIC") and the Arkansas Crime Information Cente r ("ACIC") computer sys tems in an effort to confirm rumors that Eagle had a felony rec ord. State guidelines governing the use of the ACIC syste m dictate that the computer network should, as relevant here, only b e available to "crimina l justice agencies in their official capacity," Ark. Code

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Ann. § 12-12-211(a) (Michie 1995), and the pertinent federal provisio n restricts NCIC access to "criminal justice agencies for criminal justice purposes," 28 C.F.R. § 20.33(a)(1) (1995). Despite these restrictions, JPD was not carrying on an official investigation of Eagle's crimina l acti vity at the time the officers in this case made their inquiries

. Further, because the responsible authorities had failed to fil e notification of the e xpungement of Eagle's record, the report obtained by the office rs did not indicate that the listed felony offense had bee n stricken.

This information regarding Eagle's criminal history was for som e time also available from at least one other source. Before receiving belated notice that the felon y had been removed from Eagle's record, the Arkansas State Police, in response to requests made pursuant to the Arkansas Freedo m of Information Act, released to certain members of the public, including at least four reporters, unaltered copies of Eagle's criminal case file.

On August 16, 1993, in an admitted effort to "throw doubt on [E agle's police salary] survey results," appellant Rohnny McDaniel at a Jonesboro City Council meeting revealed the auditor's criminal history by publicly reading the following excerpt from Eagle's case file:

At approximately 6:00 p.m. on Thursday, January 15, 1987, a n investigator met with the Deputy Prosecuting Attorney and was advised that he had received information of a possi ble theft of materials from Ridout Lumber Company. According to the Deputy Prose cutor, it was believed that David Eagle had stole n building materials. On March 5, 1987, David Eagle pled guilty to one count of 41-2203, theft of property.

Intere stingly, McDaniel is the only individual appellant who did no t personally access the NCIC/ACIC computer systems to verify the rumors abou t Eagle, but Eagle main tains that McDaniel gained his knowledge through the efforts of his police colleagues.

### Eagle's First Amended Complaint appears to include certain 2 

### claims in addition to those mentioned in the text. For example, Eagle seems to allege that the officers violated his First Amendment right to free speech. See First Amended Complaint, Count III. Additionally, he evidently seeks to impose liability under state law for a tortious invasion of his privacy. See id

. at Count VII. Inexplicably, though, these causes of action are not mentioned in the parties' summary judgment submissions or in the district court's order. It necessarily follows that this opinion does not comment upon these apparent grounds for relief.
5 Eagle subsequently initiated this action against sundry JPD off icers, individually and in their official capacities, and the City. Eagle assert s that t he individual state actors violated his constitutional right t o privacy when they conducted unjustified searches on the ACIC/NCIC computer dat abases and by causing the public disclosure of information about hi s expu nged criminal record. Also, he contends that the City is liabl e because these constitutional violations were a result of the municipality' s failure to properly train its employees in the use of the computer network s and because the alleged invasion of privacy occurred pursuant to a n official custom or policy. Finally, Eagle declares that the officers ' conduct constitutes the Arkansas tort of outrage. 2

Claiming that Eagle's federal privacy claim does not describe a constitutional violation and, alternatively, that qualified immunity shoul d protect the individual employees from liability, the officers and the City moved for summary judgment on this 42 U.S.C. § 1983 cause of action. In addition, they arguedthat the officials' behavior was not tortious under Arkan sas' law of outrage. The district judge, relying on this Court' s decision in Alexander v. Peffer , 993 F.2d 1348 ( 1993), determined that the facts, whe n construed in a manner most charitable to Eagle, stated a n unconstitutional intrusion into Eagle's privacy; the judge also decide d that the o fficers are not entitled to qualified immunity, and he thu s refused t o summarily dispose of this § 1983 claim. Moreover, while th e district judge was "strongly inclined to

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believe" that Eagle could not prevail under the tort of outrage, h e concluded it would be inappropriate to dismiss t his cause of action before giving the auditor an opportunity to present his evidence.

The officers and the City have now filed an interlocutory appea l from the dist rict court's denial of their summary judgment motion. Fo r reversal, they claim that the facts, even when viewed in the light mos t favorable to Eagle, could not possibly support a finding that they violate d his co nstitutional right to privacy. Also, the individual appellant s contin ue to argue that qualified immunity shields their conduct

. Furthermore, the officers insist that the district court improperly refuse d to grant summary judgment on the pendent state law claim. We conside r these allegations seriatim

.

II. DISCUSSION

A. Invasion of Privacy

1. Jurisdiction

As a preliminary matter, we must address our jurisdiction to co nsider the of ficers' assertion that their actions did not amount to a constitu tional violation. It is by now axiomatic that the federa l appellate tribunals may normally review appeals only from "final decisions " issued by the district courts. See 28 U.S.C. § 1291 (1994); Johnson v

. Jones , 115 S. Ct. 2151, 2154 (1995). Due to this statutory limitation upo n
our jurisdiction, a party is in most cases precluded from interruptin g litiga tion by filing an interlocutory appeal from a district court' s ruling. See Johnson , 115 S. Ct. at 2154-55. Of course, an order denying

a litigant's motion for summary judgment is not typically considered a "final decision" worthy of immediate appellate attention.

The Supreme Court has held, however, that a district court's

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refusal to grant a pu blic official's motion for summary judgment based on qualified immunity will, under certain circumstances, qualify as a "collateral order" fr om which the official may file a prompt appeal. Id

. at 2155 (citing Mitchell v. Forsyth , 472 U.S. 51 1, 528 (1985)). The Court has re cently reiterated that this type interlocutory appeal is onl y appropriate when it involves "abstract issues of law" relating to qualifie d immunity. Id . at 2158. By contrast, where a public official merel y challenges "a portion of a district court's summary judgment order that, though entered in a ' qualified immunity' case, determines only a question of 'evidence sufficiency,'" Id . at 2156, we cannot entertain the appeal. In othe r words, "a district court's pretrial rejection of a proffere d qualified immunity defense is not immediately reviewable if the issue on appeal is whether the pretrial record is sufficient to create a genuin e issue of material fact." Veneklase v. City of Fargo , 78 F.3d 1264, 1267 (8th Cir. 1996).

In the case currently before us, we are called upon to decide w hether the district court correctly concluded that the facts, when viewed in a light most favorable to Eagle, could substantiate a finding that the JPD officers violated Eag le's right to privacy. This constitutional question is inheren tly an "abstract issue of law" over which we presently hav e jur isdiction. Indeed, as a threshold element in any qualified immunit y appeal, we must deter mine, as a matter of law, "whether the plaintiff has alleged the violationof a constitutional right," and "whether that right was clearly established at the time of the alleg ed violation." Manzano v. South Dakota Dep't of Social Services , 60 F.3d 505, 509 (8th Cir. 1995). To be sure, some factual matters remain disputed. For instance, Eagl e contends that McDaniel and his peers at the JPD, acting in concert, were solely responsible for the dissemination of his criminal record, but the office rs respond that members of the press also distributed thi s information. Disagre ements such as this do not concern us here. Rather, in resolving this appeal, we will "take, as given, the facts that the

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district court assume d when it denied summary judgment . . . ." Johnson , 115 S. Ct. at 2159. As an example, we will assume, as did the distric t court, that the appellant officers were the only persons who publicl y revealed Eagle's criminal history. Mindful of these principles, we turn to the constitutionality of the officers' conduct.

2. The disclosure of Eagle's criminal history

Ea gle asserts that the officers violated his constitutional right s when they announced at the Jonesboro City Counsel meeting that he ha d previously pleaded gu ilty to felony theft of property. The Supreme Court has recognized that notions of substantive due process contained within th e Fourteenth Amendment safeguard individuals from unwarranted governmenta l intrusion s into their personal lives. Whalen v. Roe , 429 U.S. 589, 59 8 n.23 (1977). This right to privacy actually encompasses two separate type s of interests. Id . at 598-99. "One is the indiv idual interest in avoiding disclosure of personal matters, and another is the interest in independenc e in making certain kin ds of important decisions." Id at 599-600 (footnote omitted).

Only the former concern, which has been characterized as the righ t to conf identiality, is at issue here. This protection against publi c dissemination of information is limited and extends only to highly persona l matters representing "the most intimate aspects of human affairs." Wade

v. Goodwin , 843 F.2d 1150, 1153 (8th Cir.), cert. denied , 488 U.S. 85 4 (19 88). "[T]o violate [a person's] constitutional right of privacy th e information disclosed must be either a shocking degradation or an egregiou s humiliation of her to further some specific state interest, or a flagrant bre[a]ch of a pledge of confidentiality which was instrumental in obtainin g the personal informat ion." Alexander v. Peffer , 993 F.2d 1348, 1350 (8th Cir. 1993). To determine whether a particular disclosure satisfies this exacting standard, we must examine the

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nature of the materia l opened to public view to assess whether the person had a legitimate expectation that the information would remain confidentia l while in the state's possession. Sheets v. Salt Lake County , 45 F.3d 1383 , 1387-88 (10th Cir.), cert. denied , 116 S. Ct. 74 (1995); see also Nixon v. Administrator of Gen. Servs. , 433 U.S. 425, 457-58 (1977)(suggesting that an individual's legit imate expectation of privacy plays a pivotal role in this constitutional analysis). "When the information is inherentl y private, it is entitl ed to protection." Fraternal Order of Police, Lodge 5 v. City of Philadelphia , 812 F.2d 105, 116 (3d Cir. 1987).

We ackn owledge that the exact boundaries of this right are, to sa y the least, unclear. Scheetz v. The Morning Call, Inc. , 946 F.2d 202, 206 (3d Cir. 1991)("[T]he contours of the confidenti ality branch are murky."), cert. denied , 502 U.S. 1095 (1992). In canvassing the relevant cases , howeve r, we discovered that courts have traditionally been reluctant t o expand this branch of privacy beyond those categories of data which, by an y estimation, must be considered extremely persona l. See Sheets , 45 F.3d at 1388 ( noting privacy interest in information about spouse learned o r observed through marriage); Fraternal Order of Police , 812 F.2d at 11 5 (re cognizing that certain financial records should be afforde d constitutional protection); United States v. Wes tinghouse Elec. Corp. , 638 F.2d 5 70, 577 (3d Cir. 1980)(extending privacy protection to medica l records); York v. Story , 324 F.2d 450, 455 (9th Cir. 1963)("We canno t conceive of a more ba sic subject of privacy than the naked body."), cert. denied , 376 U.S. 939 (1964). It appears clear to us that the facts over which Eagle asserts a privacy interest are fundamentally different from th e information publicized in these other opinions. Instead, the situation in the case sub judice s eems more analogous to circumstances in which courts have refused to recognize a legitimate expectati on of privacy. See Nilson v. Layton City , 45 F. 3d 369, 372 (10th Cir. 1995)("Criminal activity is .

. . not protected by the right to privacy."); Holman v. Central Arkansas Broadcasting Co. , 610 F.2d

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542, 544 ( 8th Cir. 1979)("[N]o right to privacy is invaded when stat e officials allow or facilitate publication of an official act such as a n arrest."); Baker v. Howard , 419 F.2d 376, 377 (9 th Cir. 1969)(holding that constitutional right is not implicated even whenpolice officers circulate false rumors that person has committed a crime).

Far from being "inherently private," the details of Eagle's prio r guilt y plea are by their very nature matters within the public domain

. Accord ingly, we decide without hesitation that Eagle has no legitimat e expectation of privacy in this material. See Cox Broadcasting Corp. v

. Cohn , 420 U.S. 469, 494-95 (1975)("[T]he interests in privacy fade when th e inform ation involved already appears on the public record."), quoted i n McNally v. Pulitzer Publishing Co. , 532 F.2d 69, 77 (8th Cir.), cert
. denied , 429 U.S. 855 (1976). In reaching this conclusion, we underscore that Eagle pleaded guilty to a felony in open court. The Supreme Court ha s explained:

Atrial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we s uppose none would claim that the judge could pu nish the publisher for contempt. . . . Those who se e and hear what transpired can report it with impunit y. There is no special perquisite of the judiciary which enables it, a s distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire i n proceedings before it.
Craig v. Harney , 331 U.S. 367, 374 (1947); see also United States v

. McNally , 485 F.2d 398, 402 (8th Cir. 1973)(commenting upon public nature of trial), cert. denied , 415 U.S. 978 (1974). In fact, the concept of ope n and public court proceedings is a foundational hallmark of our republic. Cf . U.S. Const. amend. VI (specifying that crimi nal defendants shall enjoy

a publi c trial). It is evident, then, that Eagle can have virtually n o expec tation of privacy in the events surrounding his guilty plea. Se e Pulitzer

### The Nilson court continued, and we agree, that "[w]hile 3 

### state statutes and regulations may inform our judgement regarding the scope of constitutional rights, they fall far short of the kind of proof necessary to establish a reasonable expectation of privacy." Nilson , 45 F.3d at 372 (quotation omitted).
11 Publishing , 532 F.2d at 77-78 (declining to find constitutional violation where facts disclosedin newspaper article had also been revealed in open court). By freely admitting his transgression in an intrinsically public foru m, Eagle acknowledged before all his fellow citizens that he ha d committed a crime aga inst the laws of Arkansas. He cannot now claim that

a su bsequent disclosure of this same information constituted a constitutional violation.

We are unpersuaded by Eagle's contention that this result shoul d somehow be different because his criminal record was ultimately expunged. We obs erve initially that state laws, such as Arkansas' expungemen t provisions, do not establish the parameters of c onstitutional rights, like the r ight to privacy, that are grounded in substantive theories of du e process. Bagley v. Rogerson , 5 F.3d 325, 328-29 (8th Cir. 1993). Quite to the contrary, these precepts achieve their scope from "deeply roote d notions of fundamental personal inter ests derived from the Constitution." 3 Nilson , 45 F.3d at 37 2 (quotation omitted). With these thoughts in mind, we express our approval of the Tenth Circuit's reasoning in Nilson :

An expungement order does not privatize criminal activity

. While it removes a parti cular arrest and/or conviction from an individual's criminal record, the underlying object o f expungement remains publ ic. Court records and police blotters permanently document the expunged incident, and tho se officials integrally involved retain knowledge of the event. An expunged arrest and/or conviction is never truly removed fro m the public record and thus is not entitled to privacy protection.

Id

.

### 12 Just as the judiciary cannot "suppre ss, edit, or censor events which transpire in proceedi ngs before it," Craig , 331 U.S. at 374, neither does the legislature posse ss the Orwellian power to permanently erase from the public record those affairs that take place in open court. Actually, we doubt this was the intention of the Arkansas Gen eral Assembly, for even in that state an expunged conviction can be used for certain purposes. See Gosnell v. State , 681 S.W.2d 385, 386-87 (Ark. 1984)(deciding that a n expunged conviction can be employed to enhance a person's sentence as a habitu al offender); cf . Ark. Code Ann. § 16-90-901(b) (Michie Supp

. 199 6)("'[E]xpunge' shall not mean the physical destruction of an y records."). In any event, no governmental body holds the power to nullify the historical fact t hat in 1987 Eagle pleaded guilty to a felony. Thus, notwithstanding the subsequent expungement order , the officers' divulgence of this public inform ation does not implicate the constitutional right to privacy. See Nilson , 45 F.3d at 372 ("The disclosed information itsel f must warrant constitutional protection.").

We applau d Arkansas' commendable efforts to rehabilitate first time offenders, many of whom are probably in their youth, and to return those persons to the community without the disgraceful stigma of a crimina l record. See Gosnell , 681 S.W.2d at 387 (discussing legislature's intentio n in p assing comparable expungement provision). By the same token, w e respect Eagle's endeavors, which appear to have been successful, to put hi s sordid past behind him and resume his life as a productive citizen. It is unfortunate that the JPD officers, in an ignominious attempt to undermine Eagle's salary survey results, felt it necessary to publicly trample upon another man's reputat ion. We must constantly remain aware, however, that the Constitution does not provide a remedy for every wrong that occurs in socie ty. Rather, it is a framework for governance that protects thos e rights that are most cherished among free indivi duals. At the very least, the Constitution cannot act as a shield to protect Eagle from his own

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previous indiscretion s. We therefore reject his attempts to elevate to a constitutional violation the officers' disclosur e of his criminal history.

3. The unjustified computer searches

Ea gle also complains that the officers violated his constitutiona l right to privacy by retrieving, without justific ation, his criminal record from the NCIC and ACIC computer networks. We find this to be the mos t tro ubling aspect of this appeal. Years ago, at what might now b e consid ered the dawn of the technological revolution, the Supreme Cour t foresa w on the horizon abuses that might emanate from governmenta l collection of vast amounts of personal data. Wh alen v. Roe , 429 U.S. 589, 605 (1977). Some of the Court's remarks in that case bear repeating today :

We are not unaware of the threat to privacy implicit in th e accu mulation of vast amounts of personal information i n computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and socia l secur ity benefits, the supervision of public health, th e dir ection of our Armed Forces, and the enforcement of th e criminal laws all require the orderly preservation of grea t quant ities of information, much of which is personal i n character and potentially embarrassing or harmful i f disclosed. The right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory dut y to avoid unwarranted disclosures. . . . [I]n som e cir cumstances that duty arguably has its roots in th e Constitution . . . .

Id . (footnote omitted). Justice Brennan added:
[C]ollection and storage of data by the State that is in itself legitimate is not render ed unconstitutional simply because new tec hnology makes the State's operations more efficient

. How ever, as the example of the Fourth Amendment shows, th e Con stitution puts limits not only on the type of informatio n the State may gather, but also on the means it may use t o gat her it. The central storage and easy accessibility o f comput erized data vastly increase the potential for abuse o f that information, and

### 14 I am not prepared to say that future developments will no t demonstrate the necessity of some curb on such technology.

Id . at 606-07 (Brennan, J., concurring).

We echo these concerns. It is disquieting to think that the JP D employ ees wasted valuable minutes, time that presumably could have bee n exp ended in the enforcement of criminal laws, to illicitly procure fro m computer networks inc riminatory information about Eagle. Still, we must not forget the type o f database accessed in this case. Eagle has alleged that the officers used the ACIC and NCIC systems to search his crimina l history files. Regul ations on the use of these computer networks provide that criminal history information includes "identifiable descriptions and not ations of arrests, detentions, indictments, informations, or othe r formal criminal charges, and any disposition arising therefrom, sentencing , correctional supervision, and release." 28 C.F.R. § 20.3(b) (1995); see also ACIC System Regulations § 2(D) (1989)(containing nearly identica l defini tion). Additionally, the Department of Justice has stated tha t criminal history info rmation in the NCIC does not include "[i]ntelligence

or investigative information (e.g., suspected criminal activity , asso ciates, hangouts, financial information, ownership of property an d vehicles)." 28 C.F.R. § 20.3(b), appendix at 357-58 (1995).

As we have discussed earlier in this opinion, the type of infor mation contained within these criminal history files is not the sort of data over which an individual can successfully assert a right to privacy. See , e.g. , Nilson , 45 F.3d at 372 ("Criminal activity is . . . not protected by the righ t to privacy."). Because Eagle has no legitimate expectation o f privacy in the contents of his criminal history file, we cannot agree that the officers violated his constitutional right when they engaged in a n unwarranted search of this material. Thus, though it is disturbing that the officers participated in this sort of activity, Eagle has

### We note that our decision on this issue is confined to the 4 

### facts of this case. As such, we offer no opinion as to whether a mere search of other files, containing information in which a person might have a legitimate expectation of privacy, could in itself violate this constitutional right.
15 not set forth a viabl e claim for recourse in this case. We hope that, in the future, officers will be discouraged from si milar behavior by the time constraints of their jobs and by the possibility of severe crimina l penalties. See , e.g. , Ark. Code An n. § 12-12-212 (Michie 1995)(providing

4 that persons who access the ACIC for improper purposes are guilty of a felony).

B. Municipal Liability

Before passing upon the merits of the City's appeal, we must agai n
answer a jurisdictional question. Unlike the individual officers, the Cit y does not enjoy qualified immunity and cannot invoke the collateral order doctrine to justify this appeal from the district court's denial of summar y judgment. See Swint v. Chambers County Comm'n , 115 S. Ct. 1203, 1207-08 (199 5). The Court in Swint unanimously determined that the Elevent h Circui t did not have pendent jurisdiction over a county's interlocutor y appeal of a district court's refusal to grant summary judgment. Id . a t 1207 -12. Nonetheless, although the Court indicated that interlocutor y review should be restricted to those types of ap peals expressly authorized by C ongress, it did not completely foreclose the exercise of penden t appellate jurisdiction. Id . at 1209-12. The Court declined t o "definitively or preemptively settle here whethe r or when it may be proper for a cou rt of appeals with jurisdiction over one ruling to review , co njunctively, related rulings that are not themselves independentl y appealable." Id . at 1212.

We ha ve interpreted Swint to allow pendent appellate jurisdictio n "over claims that are 'inextricably intertwined' with interlocutory appeal s concerning the defense of qualified

### As a matter of course, then, we reverse as well the 5 

### district court's refusal to grant summary judgment to the officers in their official capacities. See Kentucky v. Graham , 473 U.S. 159, 166 (1985)("[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.").
16 immunity." Veneklase , 78 F.3d at 1269. In this case, we have decided tha t the of ficers' conduct did not violate Eagle's constitutional right t o privacy. This conclu sion also disposes of Eagle's related claims against the City. See Thelma D. ex rel. Delores A. v. Board of Educ. , 934 F.2 d 929, 932 (8th Cir. 1991)(stating that a local governmental entity may be liab le for an official custom that "causes an individual to suffer a constitutional harm"); Roach v. City of Fredericktown , 882 F.2d 294, 298 (8th Cir. 1989)(emphasizing that City cannot be liable for failure to trai n unless there has been "an underlying violation of the plaintiff' s constit utional rights by a municipal employee"). Under thes e circumstances, where our ruling on the merits of the individual employees' assert ions has necessarily resolved the City's pendent claim, we decid e that t he City's appeal is "inextricably intertwined" with the officers ' qualified immunity appeal. See Moore v. City of Wynnewood , 57 F.3d 924, 930 (1 0th Cir. 1995)(approving the exercise of pendent appellat e jurisdi ction where the court's ruling on the merits of the collatera l qualified immunity appeal resolved all of the remaining issues presented by the pendent appeal). Having thus established our jurisdiction, w e
reverse the district court's refusal to grant the City's motion for summar y judgment on Eagle's invasion of privacy claim. 5

C. Arkansas' Tort of Outrage

The officers also argue that the dis trict court committed error when it refused to grant t heir motion for summary judgment on Eagle's cause of action un der Arkansas' tort of outrage. This state law question is no t "inextricably intertwined" with the officers' qualified immunity appeal. See Swint , 115 S. Ct. at

### 17

1212. By like measure, review of this otherwise nonappealable decision is not "necessary to ens ure meaningful review" of the appealable order. See id . Therefore, we do not have jurisdiction to c onsider this aspect of the appeal.

III. Conclusion

We reverse the district court's refu sal to grant summary judgment to the offi cers and the City on Eagle's claim that they violated hi s constitutional right to privacy, we dismiss for want of jurisdiction that part of the appeal dealing with pendent state la w questions, and we remand for further proceedings consistent with this opinion.

REVERSED IN PART, DISMISSED IN PART, AND REMANDED.

A true copy.

Attest:

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