United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-1933

___________________________

Clint Small; Derrick Pomranky; Adam Lee; Michele Heck; Jason Hopkins; Amber

Gamboa; Nicholas Palmer; Jonathon Flanders; Tracy Mertz

lllllllllllllllllllll Plaintiffs - Appellees

v.

James McCrystal; Todd Trobaugh; County of Woodbury

lllllllllllllllllllll Defendants - Appellants

____________

 Appeal from United States District Court 

for the Northern District of Iowa - Sioux City

____________

 Submitted: November 13, 2012

 Filed: February 19, 2013 

____________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

____________

BENTON, Circuit Judge.

On October 5, 2008, deputies of Woodbury County, Iowa, responded to a

disturbance. They arrested one plaintiff at the scene; arrest warrants were issued for

others within weeks. The plaintiffs sued the deputies and County under 42 U.S.C.

§ 1983 and Iowa law. The deputies and County moved for summary judgment, which
the district court1

 denied in part. The deputies and County appeal. Having jurisdiction

of the § 1983 claims under 28 U.S.C. § 1291, this court affirms.

I.

This court states the facts most favorably to the plaintiffs, discounting the

deputies’ contrary evidence. See Nelson v. Corr. Med. Servs., 583 F.3d 522, 525 (8th

Cir. 2009) (en banc). On October 4, 2008, friends of a motorcycle-accident victim

held a benefit at a golf course. Late in the evening, a fight broke out. A volunteer

called 911. Deputies James McCrystal and Todd Trobaugh went to the golf course

to respond to a “large disturbance.” They arrived around 1:30 in the morning. They

found no fistfights. The 30 to 50 people there were not acting violently.

McCrystal entered the clubhouse and told the bartender to stop serving alcohol. 

An intoxicated Clinton Michael Small was inside. They did not exchange words. 

McCrystal exited the building. Small followed minutes later, walking toward his

camper in the parking lot. Without warning, McCrystal ran and tackled Small from

behind. Small landed on his stomach and face; his face began to bleed. McCrystal

handcuffed him. Small was taken to the hospital in an ambulance. The other

plaintiffs expressed displeasure, but did not physically threaten the deputies.

The County charged Small, Derrick Cleve Pomranky, Adam James Lee, Jason

Eugene Hopkins, Amber Lea Gamboa, Nicholas Adam Palmer, and Jonathan Paul

Flanders with disorderly conduct, unlawful assembly, and failure to disperse. Small

was also charged with interference with official acts, and Michele Kay Heck and

Tracy Ann Mertz were charged with assault on a peace officer. None of these

plaintiffs was convicted. Prosecutors dismissed charges against some, while others

were acquitted.

1

The Honorable Donald E. O’Brien, United States District Judge for the

Northern District of Iowa.

-2-
The plaintiffs sued the County, Trobaugh, and McCrystal under 42 U.S.C.

§ 1983 and Iowa law. McCrystal and the County appeal the denial of summary

judgment as to claims that McCrystal unlawfully arrested and used excessive force on

Small. All three defendants appeal the denial of summary judgment as to the claims

that the deputies induced prosecution of the plaintiffs in violation of the First

Amendment, unlawfully arrested the plaintiffs other than Small (the “Warrant

Plaintiffs”), entered into a civil conspiracy to violate the First and Fourth Amendment,

and violated Iowa law.

II.

Because a denial of summary judgment is not a final decision, this court

ordinarily lacks jurisdiction to immediately review it. McCaster v. Clausen, 684 F.3d

740, 745 (8th Cir. 2012). This court may, however, immediately review a denial of

qualified immunity under the collateral order doctrine. Id., citing Johnson v. Jones,

515 U.S. 304, 311-12 (1995). Jurisdiction extends to the “purely legal” issue of

whether the facts, taken most favorably to the plaintiffs, support a finding that the

deputies violated their clearly established constitutional rights. Id. at 745-46.

This court reviews de novo a denial of summary judgment on grounds of

qualified immunity. Nelson, 583 F.3d at 527. “Summary judgment is proper if, after

viewing the evidence and drawing all reasonable inferences in the light most favorable

to the nonmovant, no genuine issues of material fact exist and the movant is entitled

to judgment as a matter of law.” Rau v. Roberts, 640 F.3d 324, 327 (8th Cir. 2011),

quoting Hayek v. City of St. Paul, 488 F.3d 1049, 1054 (8th Cir. 2007). 

Qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). This court examines (1) whether the facts

alleged or shown, construed most favorably to the plaintiffs, establish a violation of

a constitutional right, and (2) whether that constitutional right was clearly established

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at the time of the alleged misconduct, such that a reasonable official would have

known that the acts were unlawful. McCaster, 684 F.3d at 746.

A.

Small claims that McCrystal violated his Fourth Amendment rights by arresting

him without probable cause. “It is clearly established that a warrantless arrest,

unsupported by probable cause, violates the Fourth Amendment.” Baribeau v. City

of Minneapolis, 596 F.3d 465, 478 (8th Cir. 2010). “[O]fficers are entitled to

qualified immunity if they arrest a suspect under the mistaken belief that they have

probable cause to do so, provided that the mistake is objectively reasonable.” 

Copeland v. Locke, 613 F.3d 875, 880 (8th Cir. 2010); see also Walker v. City of Pine

Bluff, 414 F.3d 989, 992 (8th Cir. 2005). “Probable cause exists if the totality of facts

based on reasonably trustworthy information would justify a prudent person in

believing the individual arrested had committed an offense.” Copeland, 613 F.3d at

879 (internal quotation marks and alterations omitted).

Small was charged with unlawful assembly.

An unlawful assembly is three or more persons assembled together, with

them or any of them acting in a violent manner, and with intent that they

or any of them will commit a public offense. A person who willingly

joins in or remains a part of an unlawful assembly, knowing or having

reasonable grounds to believe that it is such, commits a simple

misdemeanor.

Iowa Code § 723.2. Viewing the facts most favorably to Small: Neither he nor any

other person gathered at the time of his arrest was “acting in a violent manner.” 

Several witnesses in the resulting criminal trials testified that those gathered were

dispersing, while others testified that they only verbally expressed displeasure at

McCrystal’s acts. Nor did Small “join[] in or remain” a part of any group; he was

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walking away when arrested. Assuming these facts, a reasonable officer would not

have believed he had probable cause to arrest Small for unlawful assembly.

Small was charged with failure to disperse.

A peace officer may order the participants in a riot or unlawful assembly

or persons in the immediate vicinity of a riot or unlawful assembly to

disperse. Any person within hearing distance of such command, who

refuses to obey, commits a simple misdemeanor.

§ 723.3. Viewing the facts most favorably to Small: As discussed, there was no

unlawful assembly. For the same reasons, there was no riot. See § 723.1 (“A riot is

three or more persons assembled together in a violent manner, to the disturbance of

others, and with any use of unlawful force or violence by them or any of them against

another person, or causing property damage.”). Nor was Small ordered to disperse. 

Several witnesses testified that McCrystal said nothing to Small before arresting him. 

Assuming these facts, a reasonable officer would not have believed he had probable

cause to arrest Small for failure to disperse.

Small was charged with disorderly conduct. A person commits this simple

misdemeanor when he or she

1. Engages in fighting or violent behavior in any public place or in or

near any lawful assembly of persons . . . [,]

2. Makes loud or raucous noise in the vicinity of any residence or public

building which causes unreasonable distress to the occupants

thereof[, or]

3. Directs abusive epithets or makes any threatening gesture which the

person knows or reasonably should know is likely to provoke a violent

reaction by another.

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§ 723.4. Viewing the facts most favorably to Small: He did not engage in any

fighting or violent behavior. He did not make a loud or raucous noise or direct any

abusive epithets; while some witnesses heard him shout an obscenity in general

derogation of the County law enforcement, others heard nothing. He was walking

away. Any gesture he made was not threatening. Assuming these facts, a reasonable

officer would not have believed he had probable cause to arrest Small for disorderly

conduct.

Small was charged with interference with official acts.

1. A person who knowingly resists or obstructs anyone known by the

person to be a peace officer . . . in the performance of any act which is

within the scope of the lawful duty or authority of that officer . . . or who

knowingly resists or obstructs the service or execution by any authorized

person of any civil or criminal process or order of any court, commits a

simple misdemeanor. . . .

. . . .

3. The terms “resist” and “obstruct,” as used in this section, do not

include verbal harassment unless the verbal harassment is accompanied

by a present ability and apparent intention to execute a verbal threat

physically. 

§ 719.1. “One may ‘resist’ an officer under the Iowa statute without using physical

force.” Lawyer v. City of Council Bluffs, 361 F.3d 1099, 1107 (8th Cir. 2004) (citing

State v. Donner, 243 N.W.2d 850, 854 (Iowa 1976); State v. Brecunier, 564 N.W.2d 

365 (Iowa 1997)). “[T]he term ‘obstruct’ is considered broader than ‘resist,’ and

‘includes putting obstacles in the path of officers completing their duties.’” Id.,

quoting State v. Hauan, 361 N.W.2d 336, 339 (Iowa Ct. App. 1984). “Verbal

harassment” includes at least “taunting, criticizing, or leveling empty threats.” Id.

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Viewing the facts most favorably to Small: He did not “resist” or “obstruct”

the deputies in the performance of their duties. Some witnesses testified that Small

had no interaction with the deputies before McCrystal tackled him. Others stated that

he shouted an obscenity. Even if he shouted an obscenity, it was verbal harassment,

and because he was walking away, the shout was not “accompanied by a present

ability and apparent intention to execute a verbal threat physically.” § 719.1(3). 

Assuming these facts, a reasonable officer would not have believed he had probable

cause to arrest Small for interference with official acts.

McCrystal argues that when he arrested Small, it was not clearly established

whether verbal harassment combined with a failure to disperse amounted to

interference with official acts, noting that this question was settled by State v.

Parsons, No. 09-1438, 2010 WL 2757189, at *4 (Iowa Ct. App. July 14, 2010). 

McCrystal misses the mark. Assuming the facts above, Small did not verbally harass

McCrystal, and no probable cause existed to believe that Small failed to disperse. 

Even if McCrystal reasonably believed that verbal harassment combined with failure

to disperse amounted to interference with official acts, a reasonable officer would not

have believed Small had verbally harassed him and failed to disperse.

McCrystal is not entitled to summary judgment based on qualified immunity

from Small’s claim of unlawful arrest.

B.

Small contends that McCrystal used excessive force against him in violation of

the Fourth Amendment. The right to be free from excessive force in the context of an

arrest is clearly established under the Fourth Amendment. Henderson v. Munn, 439

F.3d 497, 503 (8th Cir. 2006). “[T]he test is whether the amount of force used was

objectively reasonable under the particular circumstances.” Brown v. City of Golden

Valley, 574 F.3d 491, 496 (8th Cir. 2009), quoting Henderson, 439 F.3d at 502. 

Relevant circumstances include “the severity of the crime at issue, whether the suspect

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poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor,

490 U.S. 386, 396 (1989). “[F]orce is least justified against nonviolent

misdemeanants who do not flee or actively resist arrest and pose little or no threat to

the security of the officers or the public.” Brown, 574 F.3d at 499; see Kukla v.

Hulm, 310 F.3d 1046, 1050 (8th Cir. 2002).

Viewing the facts most favorably to Small: He was charged with nonviolent

misdemeanors. He did not pose an immediate threat to the safety of the officers or

others. He was walking away from them, toward his trailer. He was not in flight or

resisting arrest. McCrystal had not advised him he was under arrest. It was

unreasonable for McCrystal to use more than de minimis force against Small by

running and tackling him from behind without warning. See Shannon v. Koehler, 616

F.3d 855, 863 (8th Cir. 2010); Bauer v. Norris, 713 F.2d 408, 412-13 (8th Cir. 1983)

(establishing that no use of force was reasonable where the plaintiffs were charged

with disorderly conduct, there was no evidence that any crime had been committed,

and no evidence that the plaintiffs physically resisted or threatened the officer – even

though the plaintiffs were “argumentative, vituperative, and threatened legal action”).

McCrystal and the County argue that when force was used, “a reasonable

officer could have believed that as long as he did not cause more than de minimis

injury to an arrestee, his actions would not run afoul of the Fourth Amendment.” See

Chambers v. Pennycook, 641 F.3d 898, 908 (8th Cir. 2011). Viewing the facts most

favorably to Small: McCrystal tackled him and his face landed on the gravel parking

lot, resulting in three lacerations above his eye that covered his face with blood. Small

was taken to the hospital in an ambulance, where the lacerations were treated without

stitches. In this case, Small suffered more than a de minimis injury. See Copeland,

613 F.3d at 881 (holding that cuts, abrasions, and an injury to the knee support a

finding of excessive force); Lambert v. City of Dumas, 187 F.3d 931, 936 (8th Cir.

1999) (holding that a single small cut on the eyelid and small scrapes of the knee and

calf support a finding of excessive force); Dawkins v. Graham, 50 F.3d 532, 535 (8th

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Cir. 1995) (holding that bruises and a facial laceration support a finding of excessive

force); cf. Wertish v. Krueger, 433 F.3d 1062, 1067 (8th Cir. 2006) (holding that

“relatively minor scrapes and bruises and the less-than-permanent aggravation of a

prior shoulder condition” were de minimis injuries).

McCrystal is not entitled to summary judgment based on qualified immunity

from Small’s claim of excessive force.

C.

The Warrant Plaintiffs allege that the deputies violated their Fourth Amendment

rights by arresting them without probable cause. They argue that the deputies’ false

reports deceived the prosecutors (who filed the warrant affidavits) and the magistrates

(who issued the warrants), and that considering only truthful information, there was

no probable cause to arrest them.

“[I]t is clearly established that the Fourth Amendment requires a warrant

application to contain a truthful factual showing of probable cause . . . .” Hunter v.

Namanny, 219 F.3d 825, 831 (8th Cir. 2000). “A warrant based upon an affidavit

containing ‘deliberate falsehood’ or ‘reckless disregard for the truth’ violates the

Fourth Amendment.” Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996),

quoting Franks v. Delaware, 438 U.S. 154, 171 (1978).

The intervening act of a prosecutor, magistrate, or grand jury may relieve an

officer of liability for a false arrest. See Ames v. United States, 600 F.2d 183, 185

(8th Cir. 1979). Officers remain liable, however, for the reasonably foreseeable acts

of actors they deceive. See id. (holding that a grand jury indictment breaks the chain

of causation between the officer’s act and the institution of criminal proceedings

“absent any specific allegation, such as the presentation of false evidence or the

withholding of evidence”); Evans v. Chalmers, ___ F.3d ___, 2012 WL 6554846, at

*6-7 (4th Cir. Dec. 17, 2012); Sykes v. Anderson, 625 F.3d 294, 314-15 (6th Cir.

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2010); Higazy v. Templeton, 505 F.3d 161, 177 (2d Cir. 2007); Borunda v.

Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988); Jones v. City of Chicago, 856 F.2d

985, 993-94 (7th Cir. 1988); Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988). 

An officer may be liable for an unlawful arrest despite a magistrate’s authorization

where “a reasonably well-trained officer . . . would have known that his affidavit

failed to establish probable cause and that he should not have applied for the warrant.”

Malley v. Briggs, 475 U.S. 335, 344-45 & n.7 (1986). “[T]he fact that a neutral

magistrate has issued a warrant is the clearest indication that the officers acted in an

objectively reasonable manner . . . . Nonetheless, . . . the fact that a neutral magistrate

has issued a warrant authorizing the allegedly unconstitutional search or seizure does

not end the inquiry into objective reasonableness.” Messerschmidt v. Millender, 132

S. Ct. 1235, 1245 (2012) (internal citation and footnote omitted). “Where the judicial

finding of probable cause is based solely on information the officer knew to be false

or would have known was false had he not recklessly disregarded the truth, not only

does the arrest violate the fourth amendment, but the officer will not be entitled to

good faith immunity.” Myers v. Morris, 810 F.2d 1437, 1457 (8th Cir. 1987) (quoting

Olson v. Tyler, 771 F.2d 277, 282 (7th Cir. 1985)), abrogated on other grounds by

Burns v. Reed, 500 U.S. 478 (1991).

The deputies discussed the events and filed police reports within 24 hours of the

911 call. After filing their original reports, the deputies again discussed the events and

supplemented their reports: McCrystal supplemented his original report 14 days later;

Trobaugh supplemented his original report 11 days later and again 25 days later. Each

supplemental report raised allegations against new parties, many of whom are Warrant

Plaintiffs. Each supplemental report requested that the prosecutor seek arrest warrants

for the named individuals. The reports state facts that closely match the prosecutors’

warrant affidavits.

The prosecutors’ warrant affidavits describe a violent scene. The warrants for

Pomranky, Lee, Hopkins, Gamboa, Palmer, and Flanders charged disorderly conduct,

unlawful assembly, and failure to disperse. Each affidavit states, “There were

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approximately 150 persons present and multiple fights going on,” and: “The

Defendant was told multiple times that [he or she] needed to leave. [He or she]

continued with [his or her] rant of profanities and kept trying to antagonize [one or

both deputies].” Each asserts that the defendant screamed. Warrants for Mertz and

Heck charged assault on a peace officer. Each affidavit states that approximately 150

to 200 people were present at the golf course when the deputies arrived, a number of

whom were fighting. The affidavit for Heck’s warrant states that she “jumped on

Deputy McCrystal’s back” and “placed her arm around Deputy McCrystal’s neck in

a choke hold.” The affidavit for Mertz’s warrant states that she “pushed Deputy

Trobaugh.”

Witnesses disagree with the McCrystal/Trobaugh version in the prosecutors’

affidavits. One testified that approximately 30 to 50 people remained outside when

the deputies arrived. Another saw “a few scattered people” outside near where Small

was arrested – “maybe ten” – and “a few more” in the distance. Others testified that

no fights were going on when the deputies arrived, that there was no group “acting in

a violent manner,” that there was no yelling or screaming, that Heck did not jump on

McCrystal, and that Mertz did not push Trobaugh. According to sworn testimony, the

deputies’ reports falsely stated what witnesses said and did.

Viewing the facts most favorably to the Warrant Plaintiffs: McCrystal arrested

Small with excessive force, without probable cause, and in front of witnesses who

expressed displeasure. The deputies then filed (and supplemented) their reports,

which tripled the largest crowd estimate of other witnesses, exaggerated the noise and

violence of the crowd, and fabricated violent physical contact by Mertz and Heck. 

Given the deputies’ stated intent that the prosecutor seek warrants against those named

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in the reports, they should have reasonably foreseen that the prosecutor would do so.2

Higazy, 505 F.3d at 177. These facts state a claim for false arrest.

The deputies may nonetheless claim qualified immunity “if all the false and

reckless portions of a warrant affidavit are corrected and the corrected affidavit still

supports a finding of probable cause.” Bagby, 98 F.3d at 1099; see also Hunter, 219

F.3d at 829; Franks, 438 U.S. at 171-72. Viewing the facts most favorably to the

Warrant Plaintiffs: The reconstructed warrant affidavits should reflect the testimony

of the witnesses described above. Because there was no group of “three or more

persons assembled together, with them or any of them acting in a violent manner, and

with intent that they or any of them will commit a public offense,” there was no

unlawful assembly. Iowa Code § 723.2. Because there was no unlawful assembly

or riot, there was no failure to disperse. § 723.3. Because there was no fighting,

yelling, screaming, or violent behavior, there was no disorderly conduct. § 723.4. 

Because neither Heck nor Mertz committed an act intending to cause pain, injury,

physical contact, or the fear of any of them to the deputies, there was no assault. 

§§ 708.1, 708.3A(4). Assuming these facts, the reconstructed affidavits do not state

probable cause to believe that the Warrant Plaintiffs committed the crimes charged.

Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012), does not help

the deputies. The Bernini case, involving a “large and potentially riotous group,” held

that the officers could have reasonably concluded that the group, acting as a unit, had

2

Trobaugh’s brief asserts that “the evidence demonstrated that the Woodbury

County Attorney’s Office spoke with a witness at the scene, Wes Lloyd.” At state

trial, Lloyd answered affirmatively the question: “Have you given a statement of any

kind to the county attorney or the police department or the sheriff’s department in this

case?” This is at best ambiguous. This court, considering the record most favorably

to the plaintiffs, declines Trobaugh’s interpretation. Trobaugh’s conclusion that “the

prosecutors did not rely exclusively on the deputies’ reports before making the

decision to file charges” has no unambiguous support in the record.

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committed a crime and that the Fourth Amendment did not require a probable cause

determination for each individual. Id. at 1003-04. In this case, viewing the facts most

favorably to the plaintiffs, there was no group acting as a unit, far fewer people than

in Bernini, and no probable cause to believe those people were committing a crime. 

The defendants’ reliance on Bernini is misplaced.

The deputies are not entitled to summary judgment based on qualified immunity

from the plaintiffs’ claim of unlawful arrest of the Warrant Plaintiffs.

D.

The plaintiffs allege that the deputies induced their prosecution in retaliation for

speech protected by the First Amendment.3

 “[T]he law is settled that as a general

matter the First Amendment prohibits government officials from subjecting an

individual to retaliatory actions, including criminal prosecutions, for speaking out.” 

Hartman v. Moore, 547 U.S. 250, 256 (2006). “To prevail on a First Amendment

retaliation claim, the plaintiffs must show that they engaged in protected activity, that

the defendants’ actions caused an injury to the plaintiffs that would chill a person of

ordinary firmness from continuing to engage in the activity, and that a causal

connection exists between the retaliatory animus and the injury.” Bernini, 665 F.3d

at 1007. “Retaliation need not have been the sole motive, but it must have been a

‘substantial factor’ in those decisions.” Kilpatrick v. King, 499 F.3d 759, 767 (8th Cir.

2007). “[A] retaliatory motive on the part of an official urging prosecution combined

with an absence of probable cause supporting the prosecutor’s decision to go forward

are reasonable grounds to suspend the presumption of regularity behind the charging

decision.” Hartman, 547 U.S. at 265.

3

Contrary to Trobaugh’s assertion, plaintiffs’ amended complaint does allege

a claim of retaliatory inducement to prosecute in violation of the First Amendment.

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Viewing the facts most favorably to the plaintiffs: McCrystal arrested Small with

excessive force, without probable cause, and in front of witnesses who expressed

displeasure. The deputies then filed (and supplemented) their reports, which tripled

the largest crowd estimate of other witnesses, exaggerated the noise and violence of the

crowd, fabricated violent physical contact by Mertz and Heck, and asked the

prosecutor to seek warrants against members of the crowd who were “verbally

abusive.” Assuming these facts, there was no probable cause to arrest any of the

Warrant Plaintiffs. See id. Nonetheless, warrants issued, they were arrested, and some

were tried. These facts state a claim for retaliatory inducement to prosecute. Id.

(holding that a showing of retaliatory motive on the part of the official urging

prosecution, combined with an absence of probable cause, is “enough for a prima facie

inference that the unconstitutionally motivated inducement infected the prosecutor’s

decision to bring the charge”).

The plaintiffs in Green v. Nocciero, 676 F.3d 748, 753 (8th Cir. 2012), and

Baribeau v. City of Minneapolis, 596 F.3d 465, 481 (8th Cir. 2010), failed to show that

the defendants violated their clearly established First Amendment rights. Green

“presented no facts, only his own unsupported belief” of retaliatory animus by the

officers. Green, 676 F.3d at 753. In Baribeau, there was “no evidence to suggest that

the decision to arrest the plaintiffs for displaying simulated WMD was not based on

an actual but overly exaggerated belief that the plaintiffs violated the WMD statute.” 

Baribeau, 596 F.3d at 481. Unlike in Green and Baribeau, the plaintiffs present

evidence that the deputies acted in retaliation for the plaintiffs’ “verbally abusive”

speech about McCrystal’s arrest of Small.

The deputies are not entitled to summary judgment based on qualified immunity

from the plaintiffs’ claim of retaliatory inducement to prosecute.

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E.

According to the plaintiffs, the deputies conspired to wrongfully arrest the

Warrant Plaintiffs in violation of the Fourth Amendment and to retaliate for protected

speech in violation of the First Amendment. The deputies respond that the plaintiffs

do not identify any facts showing a meeting of the minds among the defendants.

At times, Trobaugh asks this court to exceed its interlocutory jurisdiction. For

example:

The Plaintiffs in this instant action have merely set forth conclusory

allegations in their complaint. They failed to allege any facts tending to

show a meeting of the minds amongst the Defendants. The Plaintiffs’

conspiracy theory is premised on their belief that there must have been a

conspiracy between the Defendants because the Defendants’ version of

the facts differs from theirs. However, other witnesses and law

enforcement personnel who were present at the scene support a version

of the facts which is more consistent with the facts described by the

Defendants.

This court has no interlocutory jurisdiction “if what is at issue in the sufficiency

determination is nothing more than whether the evidence could support a finding that

particular conduct occurred.” Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Felder

v. King, 599 F.3d 846, 849 (8th Cir. 2010). Jurisdiction extends only to the legal

question whether, taking the evidence most favorably to the plaintiffs, they have

alleged a violation of clearly established constitutional rights. McCaster, 684 F.3d at

745-46. This court will consider the appeal to that extent only.

The plaintiffs must show (1) that a defendant conspired with others to deprive

them of constitutional rights, (2) that at least one of the alleged co-conspirators

engaged in an overt act in furtherance of the conspiracy, and (3) that the overt act

injured the plaintiffs. White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008). Evidence

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of an agreement to deprive a plaintiff of constitutionally guaranteed rights is typically

circumstantial. Livers v. Schenck, 700 F.3d 340, 361 (8th Cir. 2012). “The question

of the existence of a conspiracy to deprive the plaintiffs of their constitutional rights

should not be taken from the jury if there is a possibility the jury could infer from the

circumstances a ‘meeting of the minds’ or understanding among the conspirators to

achieve the conspiracy’s aims.” White, 519 F.3d at 816, quoting Larson by Larson

v. Miller, 76 F.3d 1446, 1458 (8th Cir. 1996) (Floyd R. Gibson, J., concurring in part

and dissenting in part). “The court must be convinced that the evidence presented is

insufficient to support any reasonable inference of a conspiracy.” Id., quoting

Westborough Mall, Inc. v. City of Cape Girardeau, 693 F.2d 733, 743 (8th Cir. 1982).

Viewing the facts most favorably to the plaintiffs: The deputies arrested the

Warrant Plaintiffs without probable cause and in retaliation for protected speech. The

deputies conversed before writing their original reports and again before filing their

first supplements. The deputies’ reports and supplements are strikingly similar but bear

little resemblance to the testimony of numerous witnesses. These facts state a claim

that the deputies conspired to fabricate reports seeking warrants against the Warrant

Plaintiffs, that both took an overt act to further the conspiracy, and that the plaintiffs

were harmed. The deputies are not entitled to summary judgment based on qualified

immunity from the plaintiffs’ claim of conspiracy under § 1983.

III.

The plaintiffs allege state law claims of assault and battery, malicious

prosecution, abuse of process, and civil conspiracy. The deputies appear to challenge

the district court’s denial of summary judgment as to the malicious prosecution, abuse

of process, and conspiracy claims.4

4

Trobaugh argues that “he is entitled to qualified immunity on Plaintiffs’ state

law claims of malicious prosecution and abuse of process insofar as they are collateral

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“Usually [this court’s] jurisdiction on interlocutory appeal is limited to the

resolution of the issue of qualified immunity, and [it] may not consider summary

judgment on the merits of the case . . . .” Lockridge v. Bd. of Trs. of Univ. of Ark.,

315 F.3d 1005, 1012 (8th Cir. 2003) (en banc) (internal quotation marks omitted). It

may, however, decide “closely related issues of law,” if the otherwise nonappealable

decision is “inextricably intertwined” with the appealable decision. Kincade v. City

of Blue Springs, Mo., 64 F.3d 389, 394 (8th Cir. 1995). “An issue is ‘inextricably

intertwined’ with properly presented issues only when the appellate resolution of the

collateral appeal necessarily resolves the pendant claims as well.” Lockridge, 315 F.3d

at 1012 (internal quotation marks omitted).

In Iowa, the elements of action for malicious prosecution are: (1) a previous

prosecution, (2) instigation or procurement thereof by the defendant, (3) termination

of the prosecution by an acquittal or discharge of plaintiff, (4) want of probable cause,

and (5) malice in bringing the prosecution on the part of the defendant. Reed v. Linn

Cnty., 425 N.W.2d 684, 686 (Iowa 1988). In an action against a public official, the

plaintiff must prove that the defendant acted with “actual malice.” Id. This court’s

qualified-immunity determination does not necessarily require addressing whether the

deputies acted with “actual malice” under Iowa law. The deputies’ appeal of the denial

of summary judgment on the malicious prosecution claim is dismissed for lack of

jurisdiction.

In Iowa, the elements of the tort of abuse of process are: (1) the use of legal

process (2) in an improper or unauthorized manner (3) that causes the plaintiff to suffer

damages as a result of that abuse. Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388,

398 (Iowa 2001). The plaintiff must prove that the defendant used the legal process

primarily for an impermissible or illegal motive. Wilson v. Hayes, 464 N.W.2d 250,

the [sic] Plaintiffs’ 42 U.S.C. § 1983 claims.” Trobaugh cites no authority that

extends the defense of qualified immunity to state-law claims.

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266 (Iowa 1990). This court’s qualified-immunity determination does not necessarily

require addressing whether the deputies used legal process primarily for an

impermissible or illegal motive. The deputies’ appeal of the denial of summary

judgment on the abuse-of-process claim is dismissed for lack of jurisdiction.

In Iowa, “[a] conspiracy is a combination of two or more persons by concerted

action to accomplish an unlawful purpose, or to accomplish by unlawful means some

purpose not in itself unlawful.” Basic Chems., Inc. v. Benson, 251 N.W.2d 220, 232

(Iowa 1977). “[C]onspiracy is merely an avenue for imposing vicarious liability on a

party for the wrongful conduct of another with whom the party has acted in concert.” 

Wright v. Brooke Grp. Ltd., 652 N.W.2d 159, 172 (Iowa 2002). This court’s

qualified-immunity determination does not necessarily require addressing whether a

conspiracy to arrest the Warrant Plaintiffs without probable cause and in retaliation for

protected speech is a conspiracy “to accomplish an unlawful purpose” under Iowa law. 

The deputies’ appeal of the denial of summary judgment on the civil conspiracy claim

is dismissed for lack of jurisdiction.

* * * * * * *

The judgment of the district court is affirmed.

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