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

 
2

 

Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

 

FLOYD R. GIBSON, Circuit Judge.

David Eagle filed this suit against the City of Jonesboro (the

"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 presently appeal the district court's refusal to grant their

motion for summary judgment. We reverse in part, dismiss in part, and

remand for further proceedings.

I. BACKGROUND

In 1987, Wayne Ridout, a businessman from Searcy, Arkansas, informed

local authorities that David Eagle had stolen enough lumber from Ridout's

store to partially construct a new two-story home. Following a police

investigation into the complaint, Eagle pleaded guilty in an Arkansas trial

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

indefinitely 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 requirements of his probation,

the judge may declare him guilty and impose the punishment otherwise

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 "fulfill[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). Moreover, 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 restitution to Ridout. Approximately three years later, a

state judge terminated Eagle's probation and entered an order expunging his

criminal record. The expungement decree expressly provided that it

"restored [Eagle] to [his] civil and constitutional rights as if [the

felony theft of property] had never been committed," and as a matter of law

it "completely exonerate[d] [Eagle] of any criminal purpose." Ark. Code 1

Ann. § 16-93-303(b)(2) (Michie 1987), amended by Ark. Code Ann. § 16-93-

303(b) (Michie Supp. 1996). Additionally, the state legislature has

decreed that an expunged record should be treated as confidential and

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 from

Eagle's record, he began working as an auditor for the City. In the course

of his employment, Eagle performed an audit of certain Jonesboro Police

Department ("JPD") records and conducted a police salary survey to

determine whether local officers were receiving competitive wages. The

fruits of Eagle's labor, however, apparently displeased some law

enforcement workers; several curious officers accessed the National Crime

Information Center ("NCIC") and the Arkansas Crime Information Center

("ACIC") computer systems in an effort to confirm rumors that Eagle had a

felony record. State guidelines governing the use of the ACIC system

dictate that the computer network should, as relevant here, only be

available to "criminal justice agencies in their official capacity," Ark.

Code
4

Ann. § 12-12-211(a) (Michie 1995), and the pertinent federal provision

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 criminal

activity at the time the officers in this case made their inquiries.

Further, because the responsible authorities had failed to file

notification of the expungement of Eagle's record, the report obtained by

the officers did not indicate that the listed felony offense had been

stricken.

This information regarding Eagle's criminal history was for some time

also available from at least one other source. Before receiving belated

notice that the felony had been removed from Eagle's record, the Arkansas

State Police, in response to requests made pursuant to the Arkansas Freedom

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 [Eagle'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, an

investigator met with the Deputy Prosecuting Attorney and was

advised that he had received information of a possible theft of

materials from Ridout Lumber Company. According to the Deputy

Prosecutor, it was believed that David Eagle had stolen

building materials. On March 5, 1987, David Eagle pled guilty

to one count of 41-2203, theft of property.

Interestingly, McDaniel is the only individual appellant who did not

personally access the NCIC/ACIC computer systems to verify the rumors about

Eagle, but Eagle maintains 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 officers,

individually and in their official capacities, and the City. Eagle asserts

that the individual state actors violated his constitutional right to

privacy when they conducted unjustified searches on the ACIC/NCIC computer

databases and by causing the public disclosure of information about his

expunged criminal record. Also, he contends that the City is liable

because these constitutional violations were a result of the municipality's

failure to properly train its employees in the use of the computer networks

and because the alleged invasion of privacy occurred pursuant to an

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 should

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 argued that the officials' behavior was not tortious under

Arkansas' 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, when construed in a manner most charitable to Eagle, stated an

unconstitutional intrusion into Eagle's privacy; the judge also decided

that the officers are not entitled to qualified immunity, and he thus

refused to summarily dispose of this § 1983 claim. Moreover, while the

district judge was "strongly inclined to
6

believe" that Eagle could not prevail under the tort of outrage, he

concluded it would be inappropriate to dismiss this cause of action before

giving the auditor an opportunity to present his evidence.

The officers and the City have now filed an interlocutory appeal from

the district court's denial of their summary judgment motion. For

reversal, they claim that the facts, even when viewed in the light most

favorable to Eagle, could not possibly support a finding that they violated

his constitutional right to privacy. Also, the individual appellants

continue to argue that qualified immunity shields their conduct.

Furthermore, the officers insist that the district court improperly refused

to grant summary judgment on the pendent state law claim. We consider

these allegations seriatim.

II. DISCUSSION

A. Invasion of Privacy

1. Jurisdiction

As a preliminary matter, we must address our jurisdiction to consider

the officers' assertion that their actions did not amount to a

constitutional violation. It is by now axiomatic that the federal

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 upon

our jurisdiction, a party is in most cases precluded from interrupting

litigation 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
7

refusal to grant a public official's motion for summary judgment based on

qualified immunity will, under certain circumstances, qualify as a

"collateral order" from which the official may file a prompt appeal. Id.

at 2155 (citing Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)). The Court

has recently reiterated that this type interlocutory appeal is only

appropriate when it involves "abstract issues of law" relating to qualified

immunity. Id. at 2158. By contrast, where a public official merely

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 other words, "a district court's pretrial rejection of a proffered

qualified immunity defense is not immediately reviewable if the issue on

appeal is whether the pretrial record is sufficient to create a genuine

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 whether

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 Eagle's right to privacy. This constitutional question

is inherently an "abstract issue of law" over which we presently have

jurisdiction. Indeed, as a threshold element in any qualified immunity

appeal, we must determine, as a matter of law, "whether the plaintiff has

alleged the violation of a constitutional right," and "whether that right

was clearly established at the time of the alleged 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, Eagle

contends that McDaniel and his peers at the JPD, acting in concert, were

solely responsible for the dissemination of his criminal record, but the

officers respond that members of the press also distributed this

information. Disagreements such as this do not concern us here. Rather,

in resolving this appeal, we will "take, as given, the facts that the
8

district court assumed when it denied summary judgment . . . ." Johnson,

115 S. Ct. at 2159. As an example, we will assume, as did the district

court, that the appellant officers were the only persons who publicly

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

Eagle asserts that the officers violated his constitutional rights

when they announced at the Jonesboro City Counsel meeting that he had

previously pleaded guilty to felony theft of property. The Supreme Court

has recognized that notions of substantive due process contained within the

Fourteenth Amendment safeguard individuals from unwarranted governmental

intrusions into their personal lives. Whalen v. Roe, 429 U.S. 589, 598

n.23 (1977). This right to privacy actually encompasses two separate types

of interests. Id. at 598-99. "One is the individual interest in avoiding

disclosure of personal matters, and another is the interest in independence

in making certain kinds of important decisions." Id at 599-600 (footnote

omitted).

Only the former concern, which has been characterized as the right

to confidentiality, is at issue here. This protection against public

dissemination of information is limited and extends only to highly personal

matters representing "the most intimate aspects of human affairs." Wade

v. Goodwin, 843 F.2d 1150, 1153 (8th Cir.), cert. denied, 488 U.S. 854

(1988). "[T]o violate [a person's] constitutional right of privacy the

information disclosed must be either a shocking degradation or an egregious

humiliation of her to further some specific state interest, or a flagrant

bre[a]ch of a pledge of confidentiality which was instrumental in obtaining

the personal information." 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
9

nature of the material opened to public view to assess whether the person

had a legitimate expectation that the information would remain confidential

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 legitimate expectation of privacy plays a pivotal role in

this constitutional analysis). "When the information is inherently

private, it is entitled to protection." Fraternal Order of Police, Lodge

5 v. City of Philadelphia, 812 F.2d 105, 116 (3d Cir. 1987).

We acknowledge that the exact boundaries of this right are, to say

the least, unclear. Scheetz v. The Morning Call, Inc., 946 F.2d 202, 206

(3d Cir. 1991)("[T]he contours of the confidentiality branch are murky."),

cert. denied, 502 U.S. 1095 (1992). In canvassing the relevant cases,

however, we discovered that courts have traditionally been reluctant to

expand this branch of privacy beyond those categories of data which, by any

estimation, must be considered extremely personal. See Sheets, 45 F.3d at

1388 (noting privacy interest in information about spouse learned or

observed through marriage); Fraternal Order of Police, 812 F.2d at 115

(recognizing that certain financial records should be afforded

constitutional protection); United States v. Westinghouse Elec. Corp., 638

F.2d 570, 577 (3d Cir. 1980)(extending privacy protection to medical

records); York v. Story, 324 F.2d 450, 455 (9th Cir. 1963)("We cannot

conceive of a more basic 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 the

information publicized in these other opinions. Instead, the situation in

the case sub judice seems more analogous to circumstances in which courts

have refused to recognize a legitimate expectation 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
10

542, 544 (8th Cir. 1979)("[N]o right to privacy is invaded when state

officials allow or facilitate publication of an official act such as an

arrest."); Baker v. Howard, 419 F.2d 376, 377 (9th Cir. 1969)(holding that

constitutional right is not implicated even when police officers circulate

false rumors that person has committed a crime). 

Far from being "inherently private," the details of Eagle's prior

guilty plea are by their very nature matters within the public domain.

Accordingly, we decide without hesitation that Eagle has no legitimate

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 the

information involved already appears on the public record."), quoted in

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 has

explained:

A trial is a public event. What transpires in the court room

is public property. If a transcript of the court proceedings

had been published, we suppose none would claim that the judge

could punish the publisher for contempt. . . . Those who see

and hear what transpired can report it with impunity. There is

no special perquisite of the judiciary which enables it, as

distinguished from other institutions of democratic government,

to suppress, edit, or censor events which transpire in

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 open

and public court proceedings is a foundational hallmark of our republic.

Cf. U.S. Const. amend. VI (specifying that criminal defendants shall enjoy

a public trial). It is evident, then, that Eagle can have virtually no

expectation of privacy in the events surrounding his guilty plea. See

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 disclosed in newspaper article had also been revealed in open

court). By freely admitting his transgression in an intrinsically public

forum, Eagle acknowledged before all his fellow citizens that he had

committed a crime against the laws of Arkansas. He cannot now claim that

a subsequent disclosure of this same information constituted a

constitutional violation.

We are unpersuaded by Eagle's contention that this result should

somehow be different because his criminal record was ultimately expunged.

We observe initially that state laws, such as Arkansas' expungement

provisions, do not establish the parameters of constitutional rights, like

the right to privacy, that are grounded in substantive theories of due

process. Bagley v. Rogerson, 5 F.3d 325, 328-29 (8th Cir. 1993). Quite

to the contrary, these precepts achieve their scope from "deeply rooted

notions of fundamental personal interests derived from the Constitution."3

Nilson, 45 F.3d at 372 (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 particular arrest and/or conviction from an

individual's criminal record, the underlying object of

expungement remains public. Court records and police blotters

permanently document the expunged incident, and those officials

integrally involved retain knowledge of the event. An expunged

arrest and/or conviction is never truly removed from the public

record and thus is not entitled to privacy protection.

Id. 
12

Just as the judiciary cannot "suppress, edit, or censor events which

transpire in proceedings before it," Craig, 331 U.S. at 374, neither does

the legislature possess 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 General 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 an

expunged conviction can be employed to enhance a person's sentence as a

habitual offender); cf. Ark. Code Ann. § 16-90-901(b) (Michie Supp.

1996)("'[E]xpunge' shall not mean the physical destruction of any

records."). In any event, no governmental body holds the power to nullify

the historical fact that in 1987 Eagle pleaded guilty to a felony. Thus,

notwithstanding the subsequent expungement order, the officers' divulgence

of this public information does not implicate the constitutional right to

privacy. See Nilson, 45 F.3d at 372 ("The disclosed information itself

must warrant constitutional protection.").

We applaud 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 criminal

record. See Gosnell, 681 S.W.2d at 387 (discussing legislature's intention

in passing comparable expungement provision). By the same token, we

respect Eagle's endeavors, which appear to have been successful, to put his

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 reputation. We must constantly remain aware, however, that

the Constitution does not provide a remedy for every wrong that occurs in

society. Rather, it is a framework for governance that protects those

rights that are most cherished among free individuals. At the very least,

the Constitution cannot act as a shield to protect Eagle from his own
13

previous indiscretions. We therefore reject his attempts to elevate to a

constitutional violation the officers' disclosure of his criminal history.

3. The unjustified computer searches

Eagle also complains that the officers violated his constitutional

right to privacy by retrieving, without justification, his criminal record

from the NCIC and ACIC computer networks. We find this to be the most

troubling aspect of this appeal. Years ago, at what might now be

considered the dawn of the technological revolution, the Supreme Court

foresaw on the horizon abuses that might emanate from governmental

collection of vast amounts of personal data. Whalen 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 the

accumulation of vast amounts of personal information in

computerized data banks or other massive government files. The

collection of taxes, the distribution of welfare and social

security benefits, the supervision of public health, the

direction of our Armed Forces, and the enforcement of the

criminal laws all require the orderly preservation of great

quantities of information, much of which is personal in

character and potentially embarrassing or harmful if disclosed.

The right to collect and use such data for public purposes is

typically accompanied by a concomitant statutory or regulatory

duty to avoid unwarranted disclosures. . . . [I]n some

circumstances that duty arguably has its roots in the

Constitution . . . .

Id. (footnote omitted). Justice Brennan added:

[C]ollection and storage of data by the State that is in itself

legitimate is not rendered unconstitutional simply because new

technology makes the State's operations more efficient.

However, as the example of the Fourth Amendment shows, the

Constitution puts limits not only on the type of information

the State may gather, but also on the means it may use to

gather it. The central storage and easy accessibility of

computerized data vastly increase the potential for abuse of

that information, and
14

I am not prepared to say that future developments will not

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 JPD

employees wasted valuable minutes, time that presumably could have been

expended in the enforcement of criminal laws, to illicitly procure from

computer networks incriminatory information about Eagle. Still, we must

not forget the type of database accessed in this case. Eagle has alleged

that the officers used the ACIC and NCIC systems to search his criminal

history files. Regulations on the use of these computer networks provide

that criminal history information includes "identifiable descriptions and

notations of arrests, detentions, indictments, informations, or other

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 identical

definition). Additionally, the Department of Justice has stated that

criminal history information in the NCIC does not include "[i]ntelligence

or investigative information (e.g., suspected criminal activity,

associates, hangouts, financial information, ownership of property and

vehicles)." 28 C.F.R. § 20.3(b), appendix at 357-58 (1995).

As we have discussed earlier in this opinion, the type of information

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

right to privacy."). Because Eagle has no legitimate expectation of

privacy in the contents of his criminal history file, we cannot agree that

the officers violated his constitutional right when they engaged in an

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 viable claim for recourse in this case. We hope that, in

the future, officers will be discouraged from similar behavior by the time

constraints of their jobs and by the possibility of severe criminal

penalties. See, e.g., Ark. Code Ann. § 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 again

answer a jurisdictional question. Unlike the individual officers, the City

does not enjoy qualified immunity and cannot invoke the collateral order

doctrine to justify this appeal from the district court's denial of summary

judgment. See Swint v. Chambers County Comm'n, 115 S. Ct. 1203, 1207-08

(1995). The Court in Swint unanimously determined that the Eleventh

Circuit did not have pendent jurisdiction over a county's interlocutory

appeal of a district court's refusal to grant summary judgment. Id. at

1207-12. Nonetheless, although the Court indicated that interlocutory

review should be restricted to those types of appeals expressly authorized

by Congress, it did not completely foreclose the exercise of pendent

appellate jurisdiction. Id. at 1209-12. The Court declined to

"definitively or preemptively settle here whether or when it may be proper

for a court of appeals with jurisdiction over one ruling to review,

conjunctively, related rulings that are not themselves independently

appealable." Id. at 1212.

We have interpreted Swint to allow pendent appellate jurisdiction

"over claims that are 'inextricably intertwined' with interlocutory appeals

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 that

the officers' conduct did not violate Eagle's constitutional right to

privacy. This conclusion also disposes of Eagle's related claims against

the City. See Thelma D. ex rel. Delores A. v. Board of Educ., 934 F.2d

929, 932 (8th Cir. 1991)(stating that a local governmental entity may be

liable 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 train

unless there has been "an underlying violation of the plaintiff's

constitutional rights by a municipal employee"). Under these

circumstances, where our ruling on the merits of the individual employees'

assertions has necessarily resolved the City's pendent claim, we decide

that the City's appeal is "inextricably intertwined" with the officers'

qualified immunity appeal. See Moore v. City of Wynnewood, 57 F.3d 924,

930 (10th Cir. 1995)(approving the exercise of pendent appellate

jurisdiction where the court's ruling on the merits of the collateral

qualified immunity appeal resolved all of the remaining issues presented

by the pendent appeal). Having thus established our jurisdiction, we

reverse the district court's refusal to grant the City's motion for summary

judgment on Eagle's invasion of privacy claim.5

C. Arkansas' Tort of Outrage

The officers also argue that the district court committed error when

it refused to grant their motion for summary judgment on Eagle's cause of

action under Arkansas' tort of outrage. This state law question is not

"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 ensure meaningful review" of the appealable order. See

id. Therefore, we do not have jurisdiction to consider this aspect of the

appeal.

III. Conclusion

We reverse the district court's refusal to grant summary judgment to

the officers and the City on Eagle's claim that they violated his

constitutional right to privacy, we dismiss for want of jurisdiction that

part of the appeal dealing with pendent state law 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.