United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3600

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Terry J. Harrington; Curtis W. *

McGhee, Jr., * 

*

Appellees, *

* Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

 *

The City of Council Bluffs, Iowa; *

Daniel C. Larsen; Lyle Brown, *

*

Appellants. *

*

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Submitted: September 19, 2011

 Filed: April 30, 2012

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Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.

___________

RILEY, Chief Judge.

Terry J. Harrington and Curtis W. McGhee, Jr. (collectively, appellees) sued

various defendants, including police officers Daniel C. Larsen and Lyle W. Brown

(officers), under 42 U.S.C. §§ 1983 and 1985 and state law. The appellees claimed

the defendants violated the appellees’ rights during the Iowa state investigation and

prosecution of the appellees for murder. The officers moved for summary judgment,

asserting they are entitled to qualified immunity on the appellees’ claims that can be
defeated if the officers had probable cause to arrest the appellees. The officers appeal

the district court’s denial of their motion. We reverse and remand for further

proceedings on the appellees’ remaining claims.

I. BACKGROUND

A. Factual Background1

In 1978, the appellees were convicted and sentenced to life imprisonment

without parole for murdering John Schweer, a retired police officer who was working

as a security guard at a car dealership. In 2002, the Iowa Supreme Court vacated

Harrington’s conviction and remanded the case for a new trial because the prosecutor

violated Harrington’s due process rights in failing to disclose exculpatory evidence

in compliance with Brady v. Maryland, 373 U.S. 83 (1963). The new prosecutor

decided not to retry Harrington and agreed to vacate McGhee’s conviction. McGhee

pled guilty, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to seconddegree murder in exchange for a sentence of time served.

B. Procedural History

The appellees sued the officers, the prosecutors, Pottawattamie County, Iowa

(County), and the City of Council Bluffs, Iowa under 42 U.S.C. §§ 1983 and 1985

and state law. The appellees generally contend the officersinvestigated themwithout

probable cause to suspect themof the murder, knew the main prosecution witness had

lied, coerced witnesses into lying in order to frame the appellees for murder,

concealed this fact, and hid exculpatory evidence. As relevant to this appeal, the

appellees argue these actions violated § 1983 by violating their (1) Fourth and

Fourteenth Amendment rights against unreasonable seizure; (2) Fifth and Fourteenth

For more factual details, see our previous opinion in McGhee v. Pottawattamie 1

Cnty., Iowa, 547 F.3d 922, 925-28 (8th Cir. 2008), cert. granted, 129 S. Ct. 2002

(2009), cert. dismissed, 130 S. Ct. 1047 (2010). The parties resolved that case on

appeal and the Supreme Court dismissed without entering a decision. 

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Amendment rights not to be deprived of their liberty without due process of law; and

(3) Fourteenth Amendment right to equal protection of the laws by targeting them

because they are African-American. Both appellees also alleged the officers and

prosecutors conspired to deprive the appellees of equal protection of the laws, in

violation of 42 U.S.C. § 1985. Harrington further contends the officers violated his

First and Fourteenth Amendment rights to freedom of association and Sixth and

Fourteenth Amendment rights to a fair trial. The appellees’ cases were consolidated. 

In 2007, the district court found the officers were entitled to qualified immunity

regarding their failure to disclose exculpatory evidence because any failure did not

violate a right that was clearly established when the appellees were prosecuted. See

McGhee v. Pottawattamie Cnty., Iowa, 475 F. Supp. 2d 862, 911 (S.D. Iowa 2007),

aff’d in part, rev’d in part, 547 F.3d 922 (addressing only the prosecutors’ appeal

from the district court’s disposition of their motions in the same order). The district

court also determined a reasonable jury could find the officers (1) lacked probable

cause to arrest the appellees for murder, and (2) violated the appellees’ due process

rights by fabricating evidence. Id. at 890, 910, 913. The officers did not appeal these

determinations. See generally McGhee, 547 F.3d at 925-26.

The appelleessettled their claims against the County and the prosecutors. The

district court dismissed the state-law claims as time barred.

In May 2010, the officers moved for judgment on the pleadings, maintaining

the federal claims were untimely because they were akin to the tort of false

imprisonment. The district court noted whether accrual of the § 1983 claims is based

on false imprisonment rules or on malicious prosecution rules depends upon which

of those torts most closely resembles the claims. See Wallace v. Kato, 549 U.S. 384,

388-89 (2007) (false imprisonment); Heck v. Humphrey, 512 U.S. 477, 484, 489-90

(1994)(malicious prosecution). The district court determined, if the appellees’ claims

are more similar to false imprisonment, the claims accrued when the appellees were

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charged with murder in 1978—and therefore the claims were brought well after the

applicable two-year statute oflimitations expired. See Wallace, 549 U.S. at 389 (“[A]

false imprisonment ends once the victimbecomes held pursuantto [legal] process.”). 

However, the district court denied the officers’ summary judgment motion, finding

the appellees’ claims were more “in the nature of malicious prosecution,” and,

therefore, did not accrue until the appellees’ convictions were vacated. Because the

appellees sued within two years of their convictions being vacated, the district court

determined the appellees complied with the applicable statute of limitations.

The officers again moved for summary judgment, arguing they were entitled

to qualified immunity on the claims that could be defeated by showing probable cause

because they had probable cause to believe the appellees had stolen cars. The district

court disagreed, deciding the officers were not entitled to qualified immunity because

they did not have probable cause to suspect the appellees of committing the crime

with which they were charged—Schweer’s murder. The officers timely appealed.

II. DISCUSSION

We have jurisdiction over thisinterlocutory appeal under 28 U.S.C. § 1291 and

the collateral order doctrine. See Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct.

1937, 1945-46 (2009). Ourreview of the district court’s denial ofsummary judgment

is de novo. See Morrison Enters., LLC v. Dravo Corp., 638 F.3d 594, 602 (8th Cir.

2011). “‘Summary judgment is appropriate [if] the record, viewed in the light most

favorable to [the appellees], demonstrates that there is no genuine issue of material

fact and [the officers are] entitled to judgment as a matter of law.’” Id. (quoting Myers

v. Lutsen Mtns. Corp., 587 F.3d 891, 893 (8th Cir. 2009)). “Qualified immunity is

an affirmative defense for which the defendant carries the burden of proof. The

plaintiff[s], however, must demonstrate that the law is clearly established.” Sparr v.

Ward, 306 F.3d 589, 593 (8th Cir. 2002).

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It is unclear what seizure appellees rely upon for their Fourth Amendment

claims. If appellees assert their arrest was the relevant seizure, then their claim is for

false arrest. Or if appellees maintain the “sum of post-arraignment deprivations” was

the relevant seizure, their claim is for malicious prosecution. See Nieves v.

McSweeney, 241 F.3d 46, 54 (1st Cir. 2001). On appeal, the officers argue the

district court converted the appellees’ claims into a malicious prosecution claim.

2

Sufficient probable cause would defeat the appellees’ § 1983 claims based on

malicious prosecution and would not affect the appellees’ remaining claims.3

If malicious prosecution is a constitutional violation at all, it probably arises

under the Fourth Amendment. See Albright v. Oliver, 510 U.S. 266, 271, 275 4

The Supreme Court has used the terms “prosecution without probable cause”

2

and “malicious prosecution” referring to the same claim. See Albright v. Oliver, 510

U.S. 266, 271 & n.4 (1994) (plurality opinion). Although differences between

“prosecution without probable cause” and “malicious prosecution” may exist, we will

use the parties’ terminology—malicious prosecution.

The district court’s determinations that a reasonable jury could find the

3

officers lacked probable cause to arrest the appellees for murder and violated the

appellees’ substantive due process rights by manufacturing evidence against themare

the unappealed law of the case. See United States v. Bartsh, 69 F.3d 864, 866 (8th

Cir. 1995) (“The law of the case doctrine prevents the relitigation of a settled issue

in a case and requires courts to adhere to decisions made in earlier proceedings in

order to ensure uniformity of decisions, protect the expectations of the parties, and

promote judicial economy.”). Therefore, the officers’ motion for summary judgment

cannot affect the appellees’ false arrest and substantive due process claims. See id. 

We express no opinion on the appellees’ remaining claims.

Though Albright may leave open the possibility of a procedural due process

4

claim, that claim is not available here because Iowa “provides a tort remedy for

malicious prosecution; indeed, [Harrington and McGhee] brought . . . state-law

malicious prosecution claim[s], albeit after the statute of limitations had expired.

(That fact does not affect the adequacy of the remedy.[)]” Albright, 510 U.S. at 285

(Kennedy, J., concurring); see Parratt v. Taylor, 451 U.S. 527, 540-41 (holding that

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(1994) (plurality opinion); see also id. at 275-76 (Scalia, J., concurring); id. at 276

(Ginsburg, J., concurring); id. at 281 (Kennedy, J., concurring); id. at 286-91 (Souter,

J., concurring). The dispositive issue on appeal is whether the officers are entitled to

qualified immunity on the appellees’ Fourth Amendment claims based on malicious

prosecution. 

The officers assert qualified immunity on those claims requiring the appellees

to show the officers acted without probable cause. Officials being sued under § 1983

are entitled to qualified immunity for actionsthat did not violate a clearly established

constitutional right at the time of the alleged violation such that reasonable officials

acting in the officials’ position would not have understood they were violating that

right. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding a court may

analyze the two prongs of the Saucier v. Katz, 533 U.S. 194, 201-02 (2001), test—(1)

a constitutional right (2) that is clearly established—in any sequence); Anderson v.

Creighton, 483 U.S. 635, 639 (1987). 

The Supreme Court in its 1994 Albright opinions declined to decide whether

defendants have a Fourth Amendment right against malicious prosecution, but noted

that malicious prosecution does not violate the right to substantive due process

because “pretrial deprivations [a]re better addressed under the Fourth Amendment

and not substantive due process.” Moran v. Clarke, 296 F.3d 638, 646-47 (8th Cir.

2002) (en banc) (citing Albright, 510 U.S. at 274-75 (plurality opinion)); see also

a state post-deprivation remedy satisfies procedural due process when the tortious

deprivation of protected interests results from “a random and unauthorized act by a

state employee”), overruled on other grounds by Daniel v. Williams, 474 U.S. 327,

330-31 (1986); see also Whalen v. Connelly, 621 N.W.2d 681, 687-88 (Iowa 2000)

(stating the elements of the tort of malicious prosecution); Iowa Code § 670.2

(transferred from § 613A.2 in Code 1993) (waiving municipalities’ sovereign

immunity in tort actions); Nelson v. Steiner, 262 N.W.2d 579, 582 (Iowa 1978)

(holding Iowa Code § 613A.2 (now § 670.2) does not prevent a tort action against

municipal employees).

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Albright, 510 U.S. at 283 (Kennedy, J., concurring). Moran distinguishes Albright

and holds the Fourth Amendment does not preclude recognizing a substantive due

process violation where law enforcement officers go beyond mere prosecution

without probable cause and fabricate evidence in order to “falsely formulate a

pretense of probable cause.” Moran, 296 F.3d at 647. Our sister circuits have taken

a variety of approaches on the issue of whether or when malicious prosecution

violates the Fourth Amendment. See, e.g., Nieves, 241 F.3d at 53-54; Singer v.

Fulton Cnty. Sheriff, 63 F.3d 110, 116-17 (2d Cir. 1995); Lambert v. Williams, 223

F.3d 257, 261 (4th Cir. 2000); Castellano v. Fragozo, 352 F.3d 939, 945, 953 (5th

Cir. 2003); Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001); Pierce v.

Gilchrist, 359 F.3d 1279, 1290-91 (10th Cir. 2004); Wood v. Kesler, 323 F.3d 872,

881 (11th Cir. 2003). We need not enter this debate now.5

Assuming a Fourth Amendment right against malicious prosecution exists,

such a right was not clearly established when the appellees were prosecuted in 1977

and 1978. In 1994, the Supreme Court described in Albright the “‘embarrassing

diversity of judicial opinion’ [on] the extent to which a claim of malicious

prosecution is actionable under § 1983.” Albright, 510 U.S. at 270 & n.4 (quoting

Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992)). The year before the conduct

underlying the appellees’ suit occurred, our court stated, “whether a malicious

prosecution infringes on protected constitutional rights is undecided.” Sartin v.

Comm’r of Pub. Safety of Minn., 535 F.2d 430, 433 (8th Cir. 1976). Given this

precedent, reasonable officers, in the officers’ position here, could not have known

in 1977 or 1978 that malicious prosecution violated appellees’ Fourth Amendment

rights.

We also do not address the parties’ arguments about whether probable cause 5

to suspect appellees of car theft was sufficient to defeat a claim based on prosecution

for murder without probable cause.

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III. CONCLUSION

The officers are entitled to qualified immunity on any Fourth Amendment

malicious prosecution or prosecution without probable cause claims. The district

court erred in denying the officers’ motion for summary judgment. We reverse and

remand for further proceedings on the appellees’ remaining claims.

COLLOTON, Circuit Judge, dissenting.

This is an interlocutory appeal from an order of the district court denying a

motion for summary judgment based on qualified immunity. The motion raised a

single argument—that the existence of probable cause to arrest the appellees for car

theft required the dismissal of all “causes of action that are based upon a lack of

probable cause.” R. Doc. 154, at 1. The district court denied the motion. The

majority reverses the district court’s decision based on a point of law that was not

raised or decided on the motion for summary judgment, ante, at 7, and then declines

to decide the question that wasraised and decided. Ante, at 7 n.5. I disagree with this

procedure and would affirm the district court’s order on the narrow issue presented.

The relevant procedural history can be stated briefly. In their complaints, the

appellees alleged multiple causes of action. Each plaintiff included a claim under 42

U.S.C. § 1983 based on the Fourth Amendment. One plaintiff alleged that the

investigation and prosecution caused an “unreasonable arrest and incarceration in

violation of the Fourth and Fourteenth Amendments.” No. 4:05-cv-00255, R. Doc.

1, at ¶ 318. The other asserted a violation of “his rights against unreasonable seizures

of his body guaranteed him by the Fourth Amendment.” No. 4:05-cv-00178, R. Doc.

1, at ¶ 321.6

The court thinksit is unclear “what seizure appelleesrely upon for their Fourth 6

Amendment claims,” ante, at 4-5, but it should be clear from the complaints that they

rely on the arrest for murder (with legal process) and their continued detention

pending, during, and after trial. But cf. Wilson v. Spain, 209 F.3d 713, 715-16 & n.2

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In 2007, the appellants moved for judgment as a matter of law on the plaintiffs’

civil rights claims, including the Fourth Amendment claims. No. 4:05-cv-00255, R.

Doc. 100; No. 4:05-cv-00178, R. Doc. 90. The district court ruled that the appellants

were not entitled to qualified immunity, McGhee v. Pottawattamie Cnty., 475 F.

Supp. 2d 862, 910 (S.D. Iowa 2007); R. Doc. 174, at 79, and the appellants did not

appeal. In 2010, the appellants moved for judgment on the pleadings on the Fourth

Amendment claims based on the statute of limitations. They argued that if the Fourth

Amendment claims were in the nature of malicious prosecution, such that they were

not barred by the two-year statute of limitations, see Wallace v. Kato, 549 U.S. 384,

388-392 (2007), then the appellants were entitled to qualified immunity because the

appellees’ alleged rights were not clearly established. R. Doc. 151-2, at 6-7. The

district court rejected the argument and denied the motion in an order dated October

8, 2010. R. Doc. 224, at 11 & n.5. The appellants did not appeal that order.

The only order from which the appellants appealed is the district court’s order

of October 18, 2010, denying a motion for summary judgment. R. Doc. 237; see

Harrington v. Wilber, 743 F. Supp. 2d 1006 (S.D. Iowa 2010); R. Doc. 225. That

motion relied only on the alleged existence of probable cause to arrest for car theft

as a reason to dismiss appellees’ Fourth Amendment claims. R. Doc. 154-3, at 5-9.7

(8th Cir. 2000) (discussing when the Fourth Amendment might apply “[b]etween

arrest and sentencing”); Torres v. McLaughlin, 163 F.3d 169, 174-75 (3d Cir. 1998)

(holding that “post-conviction incarceration cannot be a seizure within the meaning

of the Fourth Amendment”). The court’s reference to the possibility of a seizure

arising from the “sum of post-arraignment deprivations,” ante, at 5, is inapposite,

because the appellees were never released between their arrest and trial. Cf. Albright

v. Oliver, 510 U.S. 266, 278-79 (1994) (Ginsburg, J., concurring); Jefferson v. City

of Omaha Police Dep’t, 335 F.3d 804, 806 (8th Cir. 2003); Technical Ordnance, Inc.,

v. United States, 244 F.3d 641, 651 (8th Cir. 2001).

The motion did not specify, by reference to the appellees’ complaints, which 7

particular causes of action the motion sought to defeat. On appeal, the appellants

appear to focus on the Fourth Amendment claims pleaded by the appellees.

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When the appellees moved to dismiss this appeal based on the law of the case, the

appellants responded that “they have never before asserted that they had probable

cause to suspect Plaintiffs of car theft and, thus, are entitled to qualified immunity on

Plaintiffs claims requiring a prima facie showing of a lack of probable cause.” Resp.

to Mot. to Dismiss, Dec. 3, 2010, at 8 (emphasis added). The narrow scope of this

appeal was thus seemingly confirmed.

The court acknowledges that the motion for summary judgment underlying this

appealsought dismissal of “claims that could be defeated by showing probable cause

because they had probable cause to believe the appellees had stolen cars.” Ante, at

4. The court then switches gears, however, and addresses an entirely different issue

on appeal—whether “a Fourth Amendment right against malicious prosecution” was

clearly established in 1977 and 1978. I see no sound justification for expanding the

scope of this appeal to consider other qualified-immunity issues that the appellants

declined to raise on appeal either in 2007 or in response to the district court’s order

of October 8, 2010. The appellants can raise those matters at trial and on appeal after

judgment, see Ortiz v. Jordan, 131 S. Ct. 884, 889 (2011), but they cannot use an

order on a different qualified-immunity motion to revive a potential appeal that was

not taken in the proper course.

This is not to say that I would disagree with the court on the merits of the legal

issue that it decides, for the court’s conclusion drawssupport from Albright, 510 U.S.

at 270 n.4, and Sartin v. Commissioner of Public Safety, 535 F.2d 430, 433 (8th Cir.

1976), as well as decisions of other circuits in the wake of Albright. See RodriguezMateo v. Fuentes-Agostini, 66 F. App’x 212, 213-14 (1stCir. 2003); Osborne v. Rose,

133 F.3d 916, 1998 WL 17044, at *4-5 (4th Cir. 1998) (unpublished table decision). 

The court does mistakenly characterize one aspect of the appellees’ Fourth

Amendment claims as a “false arrest” claim. Ante, at 5 & n.3. Because the appellees

were arrested with legal process, their Fourth Amendment claims are analogous to

claims of malicious prosecution, not false arrest. Wallace, 549 U.S. at 389-90; Heck

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v. Humphrey, 512 U.S. 477, 484 (1994); Wilkins v. DeReyes, 528 F.3d 790, 798-99

(10th Cir. 2008); Nieves v. McSweeney, 241 F.3d 46, 54 (1st Cir. 2001); Singer v.

Fulton Cnty. Sheriff, 63 F.3d 110, 117 (2d Cir. 1995). We know that one aspect of

a Fourth Amendment malicious prosecution claim—i.e., a claim alleging that an

officer caused an unconstitutional arrest with warrant by presenting a judge with a

complaint and supporting affidavit that obviously failed to establish probable

cause—was clearly established as of 1986, see Malley v. Briggs, 475 U.S. 335, 341

(1986), but whether such a right was clearly established in 1977 is debatable. 

Compare Sartin, 535 F.2d at 433, and Smith v. Gonzales, 670 F.2d 522, 526 (5th Cir.

1982), with Jones v. Perrigan, 459 F.2d 81, 82-83 (6th Cir. 1972). Although the

court’s conclusion declares broadly that “the officers are entitled to qualified

immunity on any Fourth Amendment malicious prosecution or prosecution without

probable cause claims,” ante, at 8 (emphasis added), it appears that the Malley-type

claim remains in the case, see 475 F. Supp. 2d at 910, and that a qualified-immunity

defense may be renewed by the appellants at trial. Ante, at 5 n.3, 7 n.5.

As for the issue actually raised and decided in the district court, I would affirm,

but for reasons different than those given by the district court. There are potentially

conflicting signals in the case law about whether the existence of probable cause to

arrest the appellees for car theft would defeat some or all of appellees’ Fourth

Amendment claims. Compare Johnson v. Knorr, 477 F.3d 75, 83-84 (3d Cir. 2007),

and Posr v. Doherty, 944 F.2d 91, 100 (2d Cir. 1991), with Brooks v. City of Aurora,

653 F.3d 478, 485 (7th Cir. 2011). I would not reach that issue, because there are

genuine issues of fact about whether the appellants had probable cause to arrest the

appellees for car theft. The record includes police reports from 1977 that, according

to the appellants, established the requisite probable cause. But probable cause must

be based on facts that are known to the arresting officer, Devenpeck v. Alford, 543

U.S. 146, 152 (2004), or known collectively by investigating officers who are in

“some degree of communication.” United States v. Frasher, 632 F.3d 450, 453 (8th

Cir. 2011). The record on this motion includes no affidavits from the appellant

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officers establishing what they knew and when they knew it—both concerning

evidence that inculpated the appellees in a car theft ring and evidence that detracted

from a showing of probable cause—or establishing the degree of communication

between the appellants and other officers who authored reports that appear in the

record. Because these facts must be determined before the legal issues can be

resolved, I would affirm the district court’s order on the narrow issue presented.

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