Thomas J. Anderson v. Jeffrey L. Larson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 02-2071
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Thomas J. Anderson, and *
Karen L. Anderson, *
*
Plaintiffs - Appellants, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jeffrey L. Larson, Individually and as *
County Attorney for Shelby County, *
Iowa; Durwood Eugene Cavenaugh, *
Individually and as Sheriff of Shelby *
County, Iowa; Mark Hervey, *
Individually and as Deputy Sheriff of *
Shelby County, Iowa; and Todd G. *
Jones, Individually and as Special *
Agent of the Iowa Division of Narcotics *
Enforcement, Shelby County, Iowa, *
*
Defendants - Appellees. *
___________

Submitted: December 9, 2002

Filed: April 30, 2003
___________

Before McMILLIAN, FAGG and BYE, Circuit Judges.
___________

BYE, Circuit Judge.
 Thomas J. Anderson, an attorney, and his wife Karen L. Anderson brought this
action pursuant to 42 U.S.C. § 1983 against three officers and a prosecutor for their
actions during an investigation and prosecution that resulted in Anderson's conviction
for solicitation of a felony. Thomas Anderson alleges violations of his Fourth, Fifth
and Fourteenth Amendment rights under the U.S. Constitution and pendant state law
claims. Karen Anderson claims loss of consortium. The district court1 determined
the Defendants were immune from the federal and state law claims and granted
summary judgment. On appeal the Andersons argue the district court erred in its
treatment of the evidence and in holding the Defendants immune. We affirm.

I

Viewed in the light most favorable to the Andersons, the record reveals the
following facts. Todd G. Jones, a Special Agent with the Iowa Division of Narcotics
Enforcement, was investigating Steven Schuemann for drug offenses in late 1997.
Jones posed as a drug dealer and befriended Schuemann. While Jones was
undercover Schuemann suggested Jones hire Thomas Anderson, who represented
Schuemann, because Anderson accepted drugs as payment for legal services.
Schuemann told Jones Anderson had accepted drugs from Schuemann as payment for
legal services a few weeks earlier. Jones and Mark Hervey, a Shelby County Deputy
Sheriff, later arrested Schuemann for a host of drug offenses.

On February 24, 1998, Schuemann agreed to cooperate with the investigation
in exchange for reduced charges. Jeffrey L. Larson, Shelby County Attorney,
prepared the cooperation agreement and signed it on behalf of Shelby County. When
questioned, Schuemann reaffirmed what he told Jones earlier; his attorney, Anderson,
had in the past accepted drugs as payment for legal services and would likely do so

1
The Honorable Ronald E. Longstaff, United States District Court for the
Southern District of Iowa.

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again. In accordance with the cooperation agreement, Schuemann introduced Jones,
again undercover, to Anderson by telephone. Schuemann told Anderson that Jones
had been charged with a crime in another county and needed Anderson's legal
services. Schuemann implied Jones was affiliated with another man who had
committed a notorious murder in a nearby county a month earlier.

On March 18, 1998, Jones called Anderson on the pretext of discussing the
fake charge against him. During that recorded telephone call Jones told Anderson he
owed Schuemann a big favor and, to settle it, wanted to pay for Schuemann's legal
bills. Jones then told Anderson he would come to Anderson's office and bring "half
a Z" (slang for one half-ounce of cocaine) with him. Jones asked whether Anderson
knew what that meant and Anderson responded that he knew.

Jones then went to Anderson's office and recorded the conversation. Jones
wore leather and long hair and appeared to be a member of a motorcycle gang.
Anderson claims Jones had a bulge in his pants and he believed it to be a gun, but
Jones was not in fact armed. When Jones asked about Schuemann's legal bills,
Anderson explained the legal services for which Schuemann owed him money. When
Anderson told Jones the exact amount Schuemann owed, Jones stood up, pulled a bag
of cocaine from his pocket, and placed it on Anderson's desk. Anderson picked it up,
examined it, untied it, smelled it, and in response to Jones's inquiry, said it was worth
six or seven hundred dollars off Schuemann's total bill of $1360. Jones and Anderson
then discussed future delivery of drugs to settle the rest of the bill. Anderson kept the
cocaine when Jones left his office.

During this encounter Hervey and Cavenaugh were waiting outside Anderson's
office but could not hear the exchange between Jones and Anderson. When Jones left
Anderson's office he told Hervey and Cavenaugh Anderson had accepted the drugs.
Hervey and Cavenaugh entered Anderson's office and arrested him approximately two
minutes after Jones left the office. The cocaine was in Anderson's coat pocket.

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 Anderson was charged with the lone offense of solicitation of a felony pursuant
to Iowa Code § 705.1. The Iowa trial court denied his motions to dismiss the charges
and to suppress the drug evidence. Anderson claimed innocence but was convicted
on December 8, 1998, in a jury trial. The Iowa Supreme Court reversed the
conviction on the ground there was insufficient evidence of solicitation because
Anderson had merely responded to Jones's invitation to accept drugs. Iowa v.
Anderson, 618 N.W.2d 369, 373-74 (Iowa 2000). In a footnote, the Iowa Supreme
Court said, "[w]e do not mean to imply that the defendant committed no crime, only
that, whatever offense he committed, it was not solicitation of a felony." Id. at 373,
n.2.

Anderson and his wife brought this action against the county prosecutor and
three officers involved in the investigation, arrest and prosecution. They allege in
Count 1, brought pursuant to 42 U.S.C. § 1983, violations of Anderson's Fourth, Fifth
and Fourteenth Amendment rights under the U.S. Constitution; in Count 2 pendant
state law claims of false arrest, false imprisonment, malicious prosecution, intentional
infliction of emotional distress, outrageous conduct, invasion of privacy, negligence,
gross negligence, negligent hiring and retention and supervision; and in Count 3 a
pendant state law claim of intentional interference with Anderson's contractual
relationship with Schuemann.

The district court granted the Defendants' motion for summary judgment on all
claims. With regard to the federal causes of action, the district court determined
Larson, the prosecutor, was shielded by absolute immunity for his actions. The court
further found Anderson could not establish Cavenaugh, Hervey or Jones violated his
constitutional rights and they were entitled to qualified immunity. The court held all
the Defendants were immune from the state law claims pursuant to Iowa Code § 669,
the Iowa Tort Claims Act. The Andersons appeal the district court decision with
respect to the Fourth and Fourteenth Amendment and state claims only.

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 II

"We review a district court's grant of summary judgment de novo. Summary
judgment is appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, demonstrates that there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law." Duffy v. McPhillips, 276
F.3d 988, 991 (8th Cir. 2002) (citations omitted); Fed. R. Civ. P. 56(c). The moving
party bears the burden of showing the absence of a genuine issue of material fact.
Lynn v. Deaconess Med. Ctr.-West Campus, 160 F.3d 484, 487 (8th Cir. 1998). "We
may uphold a grant of summary judgment for any reason supported by the record,
even if different from the reasons given by the district court." Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).

The Andersons complain the district court did not view all the evidence in their
favor. They point to two instances of improper weighing of evidence: the district
court's discussion of the Iowa Supreme Court decision and its treatment of Anderson's
asserted fear of Jones.

The Andersons argued below and on appeal the Iowa Supreme Court's holding
supports their assertion Defendants had no probable cause to believe Anderson
committed any crime when they investigated, arrested and prosecuted him. The
district court noted the Iowa Supreme Court's holding concerned the definition of
solicitation, and quoted its footnote explaining the holding did not mean Anderson
was innocent of all crimes. The district court's treatment of the Iowa Supreme Court's
opinion was relevant to rebut the Andersons' over broad reading of it. Proper
interpretation of the Iowa Supreme Court's decision was a question of law, not the
improper weighing of factual evidence. Moreover, it was the only correct
interpretation of the Iowa court's decision. It was not improper under the summary
judgment standard.

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 In its memorandum and order granting summary judgment, the district court
noted: "Anderson now states that he was so intimidated by Jones that he thought his
life was in imminent danger unless he accepted the drugs." Anderson interprets the
that sentence as suggesting he did not assert he was afraid of Jones before the suit
was filed. The Andersons protest the district court's "finding of fact" as improper
because Anderson had always claimed to be fearful of Jones. The Andersons,
however, read far too much into the district court's use of the word "now." It is clear
from the sentence and from the context that whether Anderson's explanation for
taking the drugs was new or old is irrelevant to the court's analysis. It certainly was
not improper weighing of disputed evidence.

III

The Andersons contend the district court's grant of absolute immunity to
Larson was error, and we agree in part. Prosecutors are protected by absolute
immunity from civil liability under § 1983 for prosecutorial functions such as the
initiation and pursuit of a criminal prosecution, the presentation of the state's case at
trial, and other conduct that is intimately associated with the judicial process.
Buckley v. Fitzsimmons, 509 U.S. 259, 268-71 (1993); Brodnicki v. City of Omaha,
75 F.3d 1261, 1266 (8th Cir. 1996). In contrast, a prosecutor is entitled only to
qualified immunity when performing actions in an "investigatory" or "administrative"
capacity. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). To decide whether an
action is prosecutorial, investigatory or administrative, the court must look to "the
nature of the function performed, not the identity of the actor who performed it."
Forrester v. White, 484 U.S. 219, 229 (1987); Brodnicki, 75 F.3d at 1266-67. The
U.S. Supreme Court has emphasized "the official seeking absolute immunity bears
the burden of showing that such immunity is justified for the function in question."
Burns v. Reed, 500 U.S. 478, 486 (1991).

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 The Andersons argue Larson's communications with Schuemann violated the
rules governing attorney conduct in the state of Iowa, and such a violation should rob
Larson of absolute immunity. The Iowa Disciplinary Rules state, in pertinent part:

During the course of representing a client a lawyer shall not . . .
[c]ommunicate or cause another to communicate on the subject of the
representation with a party known to be represented by a lawyer in that
matter except with the prior consent of the lawyer representing such
other party or as authorized by law.

Iowa D.R. 7-104(a)(1). The subject of Schuemann's cooperation was Anderson's
acceptance of drugs as a method of payment for his legal services, not Anderson's
representation of Schuemann. We are not convinced Larson violated the rule, and
Anderson points to no Iowa decision on point. Moreover, the Supreme Court has
found breaches of attorney ethic rules to be protected by absolute immunity when
they occur while the prosecutor is performing in a prosecutorial role. Burns v. Reed,
500 U.S. at 489-90 (finding prosecutors are absolutely immune where the prosecutor
was alleged to have knowingly elicited false and defamatory testimony from
witnesses). Redress for a lawyer's ethical lapse is best had in a disciplinary
proceeding before the state bar.

The question of whether absolute or qualified immunity applies depends upon
whether the prosecutor's acts were prosecutorial, investigatory or administrative in
nature. Buckley, 509 U.S. at 268-71; Imbler, 424 U.S. at 430-31. We first note
Larson's involvement with Schuemann's cooperation agreement fell well within the
normal acts of a prosecutor and qualify for absolute immunity. Brodnicki, 75 F.3d
at 1268. The same is true for Larson's decision to drop charges against Schuemann
and to initiate an investigation of Anderson. Id. ("The decisions relating to the
initiation and dismissal of cases are at the very heart of a prosecutor's function as an
advocate for the state, and absolute immunity thus attaches to those decisions.").

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 The Andersons offer no evidence supporting their claim Larson told or directed
Jones to engage Anderson in solicitation of a felony. They do, however, have
evidence showing Larson gave Jones legal advice during the investigation.
Specifically, Larson may have advised Jones to engage Anderson in the crime of
solicitation of a felony. The Supreme Court has held giving legal advice to police
during an investigation strips a prosecutor of absolute immunity for that act because
it is not a normal part of prosecutions. Burns v. Reed, 500 U.S. at 494. Because a
reasonable jury could find Larson gave Jones legal advice during the investigation,
we conclude Larson is not absolutely immune for that act. With respect to all other
acts, Larson has absolute prosecutorial immunity. While we hold the district court
erred in finding Larson absolutely immune for the act of providing legal advice
during the investigation, the doctrine of qualified immunity remains available to him
for that act, as it does for Cavenaugh, Jones and Hervey. Imbler, 424 U.S. at 430-31.

IV

Qualified immunity shields government officials from federal suit unless their
conduct violates a clearly established constitutional or statutory right of which a
reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The purpose of qualified immunity is to "allow public officers to carry out
their duties as they believe are correct and consistent with good public policy . . . ."
Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002). The inquiry "focuses on the
objective legal reasonableness of the official's acts," and the qualified immunity
defense fails if the official violates a clearly established right because "a reasonably
competent public official should know the law governing his conduct." Harlow, 457
U.S. at 818-19. The analysis is two-part: first, has plaintiff alleged a violation of a
constitutional right; second, was that right "clearly established at the time of the
alleged violation." Manzano v. S.D. Dep't of Soc. Servs., 60 F.3d 505, 509 (8th Cir.
1995). The district court found the Andersons could not establish a violation of a
constitutional right by any Defendant, and we agree.

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 Anderson claims his arrest and prosecution violated his right to substantive due
process pursuant to the Fourteenth Amendment. Such is a claim if a defendant's
conduct "shocks the conscience or interferes with rights implicit in the concept of
ordered liberty," or "offends judicial notions of fairness," or is "offensive to human
dignity," or is taken with "deliberate indifference" to protected rights. Weiler v.
Purkett, 137 F.3d 1047, 1051 (8th Cir. 1998) (citing United States v. Solerno, 481
U.S. 739 (1987)); Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989); Neil v. St.
Louis County Bd. of Police Comm'rs, 217 F.3d 955, 958-59 (8th Cir. 2000).

It is uncontested Schuemann told the Defendants he had paid Anderson for
legal services with drugs, and it was Anderson's practice to accept drugs. Larson,
Cavenaugh, Hervey and Jones therefore had probable cause to believe Anderson had
committed a drug crime and would again. Their initiation of an investigation was
therefore not a violation of substantive due process. Later when Anderson accepted
drugs from Jones as payment for legal services, Defendants had probable cause to
believe he had committed another drug crime. The arrest was, therefore, well
grounded and not the least bit shocking or offensive to judicial notions of fairness.
The prosecution was not violative of Anderson's substantive due process rights, even
if the prosecutor chose the wrong charge to pursue. Nor was the Defendants' use of
Schuemann in their investigation of Anderson. The purpose of the attorney-client
relationship is not to protect an attorney committing crimes. While the use of an
attorney's client to investigate the attorney may tip-toe on hazardous ground,
Anderson shows no substantive due process violation in this case.

The Andersons also argue Jones's actions violated the Iowa statute governing
undercover police work, and said violation rose to the level of a Fourteenth
Amendment substantive due process violation. The Iowa statute provides that
officers who commit crimes during an investigation "shall not be guilty of that crime
or of the crime of solicitation" provided the officers do not instigate the crime, do not
injure another, have the consent of superiors, and are reasonable. Iowa Code

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§ 704.11. Jones's actions in initiating the crime at most nullify the statute's
exculpatory effect, making Jones subject to criminal prosecution for the drug
transaction. The statute does not confer rights upon suspects, nor does it provide for
a remedy if police do not follow it. The record shows Jones's acts were not "offensive
to human dignity," nor do they "offend judicial notions of fairness." Moreover, a
violation of state law does not deprive an official of qualified immunity, unless the
violation itself gives rise to a § 1983 cause of action. Parrish v. Mallinger, 133 F.3d
612, 614 (8th Cir. 1998). We find no substantive due process violation in the
investigation, arrest or prosecution of Anderson.

Anderson also claims his arrest violated the Fourth Amendment. A claim of
false arrest brought pursuant to § 1983 fails if the officer had probable cause to make
the arrest. Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001). Anderson
claims Defendants had no probable cause because they knew he only accepted the
drugs out of fear of Jones's undercover persona.

Jones was wearing leather and long hair and had a bulge in his clothing
Anderson incorrectly believed to be a gun. Anderson claims he was lead to believe
Jones was responsible for a recent murder in which the victim's ears were removed
with a chainsaw. Anderson's fear, however, does not show Defendants did not have
probable cause to believe Anderson committed a crime when he accepted the drugs.
Jones had no way of knowing Anderson believed he was an armed, corpse-mutilating
murderer. In their telephone conversation Jones told Anderson he was coming over
with drugs and intended to pay for Schuemann's legal bill and Anderson did not
discourage him. It was Anderson, not Jones, who suggested the value of the drugs
on Schuemann's bill. Anderson voiced no hesitation or concern when Jones gave him
the drugs and left. From Jones's perspective, when Anderson accepted the drugs
without protest and in apparent agreement with the exchange, there was ample
probable cause for arrest. We therefore hold Anderson can not show his arrest
violated the Fourth Amendment.

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 V

The district court ruled Defendants were immune from the Andersons' state law
claims under the Iowa Tort Claims Act, Iowa Code § 669. The Andersons point to
no error in that analysis or decision. Fed. R. App. P. 28(a) provides that an
appellant's brief "shall contain the contentions of the appellant with respect to the
issues presented, and the reasons therefor." Our general rule is "a party's failure to
raise or discuss an issue in his brief is to be deemed an abandonment of that issue."
United States v. Eldeeb, 20 F.3d 841, 843 (8th Cir. 1994) (quoting Jasperson v.
Purolator Courier Corp., 765 F.2d 736, 740 (8th Cir. 1985)). The Andersons have
abandoned their state law claims and, without review on the merits, we affirm
summary judgment on the state law claims. We therefore affirm the judgment of the
district court in all respects.

A true copy.

Attest:

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

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