The Honorable Richard H. Kyle, United States District Judge 1

for the District of Minnesota, sitting by designation.

___________

No. 96-2598

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Charles J. Schenecker; Mary *

Beth Schenecker; Kevin D. *

Frazier; Richard L. Schenecker; *

Mary E. Schenecker; Heather J. *

Schenecker, child; Katherine L. *

Schenecker, child; Charles *

Joseph Schenecker, child; *

Elizabeth A. Schenecker, child, *

*

Plaintiffs/Appellees, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

The City of Sioux City; Ronald *

G. Cardwell, Officer; Paul *

Greer, Officer, *

*

Defendants, *

*

Woodbury County; Karrie S. *

Kelly, individually and as *

employee of Woodbury County *

*

Defendants/Appellants. *

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Submitted: January 16, 1997

Filed: February 27, 1997

___________

Before BOWMAN and MURPHY, Circuit Judges, and KYLE, District Judge.

1

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MURPHY, Circuit Judge.

This case arises from the arrest and prosecution of out-of- state

bail bondsmen who went to Iowa to apprehend a fugitive. They sued Woodbury

County, Karrie Kelly, the City of Sioux City, and the arresting officers

for malicious prosecution, false arrest, and other torts. The district

court denied a summary judgment motion
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of the county and prosecutor on the basis of absolute immunity, and they

appeal. We reverse.

Richard and Charles Schenecker are bail bondsmen who went to Sioux

City to apprehend a person who had jumped bail in Missouri. After the

initial attempt at apprehending the fugitive failed when local police

officers intervened, the Scheneckers and Kevin Frazier, an associate, made

a second attempt and entered the home where the fugitive was staying around

six in the morning. Shots were fired, and Richard Schenecker was wounded.

The Scheneckers and Frazier were arrested and charged with second degree

burglary, going with armed intent, and going armed with a loaded firearm

within city limits. They were acquitted on the first two charges, but

Charles Schenecker was convicted on the third. 

The Scheneckers and Frazier then sued under theories of malicious

prosecution, false arrest, and other torts, alleging that the defendants

interfered with their right to apprehend the fugitive and that Kelly

knowingly prosecuted them without probable cause to protect herself and

others from civil liability. Kelly and the county moved for summary

judgment, arguing that prosecutorial immunity barred the civil action

against them. The district court denied the motion, concluding that

immunity did not protect a prosecutor when she uses criminal charges as an

offensive maneuver to prevent later civil litigation.

Kelly and the county argue on appeal that the district court erred

in denying their motion for summary judgment because Iowa law gives

prosecutors absolute immunity from being sued for acts done in their

official capacity. The Scheneckers respond that the denial of the motion

is not a final order, that the issue of immunity is effectively appealable

after the trial, and that the district court properly found that Iowa law

did not give Kelly and the county immunity. Whether there is jurisdiction

over the denial of summary judgment concerning an immunity defense is

reviewed de
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novo, Bartlett v. Fisher, 972 F.2d 911, 914 (8th Cir. 1992), as is the

denial of summary judgment. Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th

Cir. 1995).

Although 28 U.S.C. § 1291 gives appellate jurisdiction only over

final decisions, an order does not have to end the case in order to be

appealed. Mitchell v. Forsyth, 472 U.S. 511, 524 (1985). An order may be

appealed if it finally determines a collateral right separate from the

rights asserted in the action and "too important to be denied review and

too independent of the cause itself to require that appellate consideration

be deferred until the whole case is adjudicated." Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949). Under the collateral rights

doctrine, the denial of a claim of absolute immunity is appealable because

the essence of that right is that the possessor does not have to answer for

her conduct in a civil action. Mitchell, 472 U.S. at 525. 

Iowa law provides absolute immunity from suit for prosecutors

engaging in their official functions. See, e.g., Hanson v. Flores, 486

N.W.2d 294, 296 (Iowa 1992) ("prosecutorial immunity bars a suit"); Hike

v. Hall, 427 N.W.2d 158, 160 (Iowa 1988) (prosecutorial immunity shields

absolutely from civil suit); Blanton v. Barrick, 258 N.W.2d 306, 311 (Iowa

1977) ("immune from civil suit"). Although the Iowa Supreme Court has used

various terms in describing this immunity, it has consistently affirmed the

dismissal of civil suits against prosecutors and has explained that the

policy behind the immunity is to ensure that prosecutors may "vigorously

proceed with their tasks unhampered by the fear of unlimited civil

litigation." Id. at 309; see also Hanson, 486 N.W.2d at 296 ("A county

attorney must be permitted to pursue . . . claims with the confidence that

he or she will not be the subject of a suit by a disgruntled litigant.").

Making Kelly and the county participate in a trial would undermine Iowa’s

policy of protecting prosecutors from the burdens of litigation. This

court
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has jurisdiction over the appeal.

Kelly and the county argue that the district court incorrectly found

that this immunity did not extend to them. The Scheneckers respond that

immunity does not protect Kelly and the county because the filing of

charges against them was wrongfully motivated to avoid civil litigation and

was outside the scope of Kelly’s official duties. 

Even if Iowa law would not extend absolute immunity to prosecutors

when there is wrongful motivation in filing criminal charges, the

Scheneckers have not shown any evidence that Kelly had improper motive.

The Scheneckers claim that Kelly knew or should have known under Supreme

Court precedent that they could enter a house to apprehend an individual

who had jumped bail. They have produced no evidence, however, of Kelly’s

wrongful motivation in researching the law and in deciding to file charges

or of her acting outside her official capacity in handling the criminal

case. Prosecutorial immunity extends to Kelly and the county, and the

district court erred by not granting their summary judgment motion. See

Burr v. City of Cedar Rapids, 286 N.W.2d 393, 396 (Iowa 1979) (prosecutor’s

immunity extends to county employer).

Accordingly, we reverse and remand with instructions to enter

judgment in favor of Kelly and the county.

A true copy.

Attest:

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