United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-3723
___________
Heartland Academy Community *
Church, a Missouri not-for-profit *
corporation; CNS International *
Ministries, Inc., a Missouri not- *
for-profit corporation; Michael *
Bounds; Catherine Brown; James *
Crary; Cheryl Crary; Vicki Sowle; *
Brad Hampton; Terry Hans; *
Katherine Hans; Timothy Hans; *
Leigha Lawson; Toni Lewis; *
Toniece Sims; Diane Mamell; * Appeal from the United States
Nicholas Martinez; Susan McCoy; * District Court for the
Chelsea Grinnall; Douglas O’Neill; * Eastern District of Missouri.
Julie Roberts-Cole; Karen Roberts *
Torress, *
*
Plaintiffs/Appellees, *
*
Elyese Anderson; Russell Ayers; *
Cody Ayers; Michael J. Armstrong; *
Mary Alvesteffer; Jovani Bajana; *
Gordon Bold; Norma Bold; *
Christina Bold; Robert Bounds; *
Nancy Bounds; Jay Braun; *
Joseph Braun; James Brownfield; *
David Christensen; Becky Christensen; *
Jenna Christensen; Courtney Collins; *
Samantha Crary; Tyler Davis; *
Anthony Franklin; Catherine Franklin; *
Moriah Garza; Martha Hampton; *
Carolyn Hildebrand; Nicole Ward; *
Shawn Jarnigan; Tom Jarnigan; *
Donnie Johns; Carolyn Johns; *
Jonathan Johns; Jesse Mamell; *
Jennifer Martinez; Nicole Martinez; *
Paula McKinney; Richard Pollitt; *
Susan Pollitt; Jane White, *
*
Plaintiffs, *
*
v. *
*
Michael Waddle, in his individual *
and official capacities; Jeff Hall, in *
his individual and official capacities; *
Cindy Ayers, in her individual and *
official capacities; Dana Martin, in *
her individual and official capacities; *
Denise Cross, in her individual and *
official capacities; Jerrie Jacobs- *
Kenner, in her individual and official *
capacities; Christine White, in her *
individual and official capacities; *
Donna Rohrbach, in her individual *
and official capacities; Pam *
McGowan, in her individual and *
official capacities; James Harrison, in *
his individual and official capacities; *
Mac Abernathy, in his individual and *
official capacities; Richard *
Engelhardt, in his individual and *
official capacities, *
*
Defendants/Appellants. *
__________
Submitted: September 21, 2009
Filed: February 8, 2010(Corrected: 2/24/2010)
___________
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Before MURPHY, JOHN R. GIBSON, and RILEY, Circuit Judges.
___________
RILEY, Circuit Judge.
This interlocutory appeal is the latest battle in a nearly decade-old conflict
between Heartland Christian Academy (HCA) and the State of Missouri. The two not-
for-profit corporations that own and operate HCA, Heartland Academy Community
Church (HACC) and CNS International Ministries, Inc. (CNS), six former HCA
students (Students), and thirteen parents of former HCA students (Parents)
(collectively, Heartland) are suing twelve Missouri juvenile officials (Officials) under
42 U.S.C. § 1983.1 Heartland alleges the Officials conspired to raid HCA’s campus
and seize scores of its students in 2001, in violation of the United States Constitution.
The Officials maintain they are entitled to qualified immunity, but the district court2
denied their motions for summary judgment. To the extent we have jurisdiction over
the Officials’ interlocutory appeal, we affirm.
1
The Students are Michael Bounds, Timothy Hans, Leigha Lawson, Toniece
Sims, Chelsea Grinnall, and Karen Roberts Torress. The Parents are James and
Cheryl Crary, Terry and Katherine Hans, Toni Lewis, Nicholas Martinez, Susan
McCoy, Julie Roberts-Cole, Catherine Brown, Vicki Sowle, Brad Hampton, Diane
Mamell, and Douglas O’Neill. The Officials are Michael Waddle, Jeff Hall, Cindy
Ayers, Dana Martin, Denise Cross, Jerrie Jacobs-Kenner, Christine White, Donna
Rohrbach, Pam McGowan, James Harrison, Mac Abernathy, and Richard Engelhardt.
All of the remaining persons in the caption, listed as “Plaintiffs,” are former plaintiffs
who either abandoned their claims in the district court or did not attempt to cross-
appeal an adverse grant of summary judgment. We have amended the caption to
reflect the proper parties to this appeal.
2
The Honorable Henry Edward Autrey, United States District Judge for the
Eastern District of Missouri.
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I. BACKGROUND
A. Allegations Against the Officials
Viewed in the light most favorable to Heartland, see, e.g., Brown v. City of
Golden Valley, 574 F.3d 491, 495-96 (8th Cir. 2009), the facts3 are these:
The Officials participated in a conspiracy to harass and intimidate HCA, a
Christian faith-based boarding school in northeastern Missouri. HCA educates and
provides social services to children with behavioral and substance abuse problems.
As of 2001, approximately 120 of HCA’s 220 students lived on HCA’s campus.
Two of the conspiracy’s more prominent members were Chief Juvenile Officers
Michael Waddle (Waddle) and Cindy Ayers (Ayers). Waddle, the conspiracy’s
ringleader, disliked HCA because (1) HCA was unlicensed (legally), (2) Waddle
disagreed with HACC’s teachings, and (3) Waddle believed HCA had not acted “very
Christ-like.” Ayers complained HCA was “growing too fast,” and expressed the view
that “there [were] people everywhere at [HCA], including children from foreign
countries,” and Missouri should slow or “put a stop” to HCA.
The charged conspiracy reached its nadir on October 30, 2001, when juvenile
authorities and armed law enforcement officers, 30 total, arrived at HCA’s campus
and removed 115 of its students. The Officials did not provide any notice to
Heartland of the removal until the last possible moment. Waddle and Ayers procured
ex parte orders from local juvenile court judges to remove HCA’s students. Waddle
and Ayers used false misrepresentations to obtain the ex parte removal orders. The
juvenile court judges issued the ex parte orders under the false impressions (1) all
HCA students were in imminent danger of physical harm, (2) HCA was unwilling to
3
For purposes of summary judgment and this appeal, the Officials do not dispute
Heartland’s statement of facts.
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cooperate with the relevant juvenile authorities, and (3) no lesser alternative short of
a mass removal was available to ensure the students’ safety.
The ex parte orders were rife with error, because Waddle and Ayers knowingly
presented the juvenile court judges with stale information about HCA’s student body.
As a direct consequence, those conducting the raid lacked ex parte orders for dozens
of the children they removed. Yet they possessed ex parte orders for approximately
forty children who no longer lived at HCA and four adults over whom the juvenile
judges lacked jurisdiction.
Members of the conspiracy, together with others, detained the HCA students
at local facilities until the students’ parents retrieved them. When the parents arrived
at the detention facilities—sometimes several days after the raid and from far-flung
locations—the parents received stern letters advising the parents to keep their children
away from HCA. The letters suggested the return of a child to HCA might result in
the parents’ loss of custody of their children or referral to law enforcement authorities.
The juvenile court judges scheduled post-removal detention hearings, but
Waddle and Ayers preemptively moved to dismiss the underlying juvenile court cases
as soon as the parents picked up their children. All cases were eventually dismissed,
the judges never held any hearings, and the propriety of the raid was never litigated
in juvenile court.
After the hearings were cancelled and the juvenile court cases dismissed, the
Officials tried to cover up their misdeeds. They spread false and misleading
information to the press and politicians alike. For example, Dana Martin (Martin),
Director of the Missouri Department of Social Services, sent a letter to a Missouri
state representative. In the letter, Martin falsely stated (1) the Missouri Division of
Family Services (DFS) had received “numerous reports of child abuse and neglect [at
HCA] dating back to 1998”; (2) DFS “made many attempts to resolve concerns with
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[HCA] from March 2001 until the eventual removal of the children in October”;
(3) no DFS personnel participated in the mass removal; and (4) a HCA staff member
had pled guilty to beating a child.
B. Legal Wrangling
1. Equitable Relief Case
In July 2001, months before the raid, HACC and CNS (collectively, Heartland
Corporations) filed a lawsuit (Equitable Relief Case) in the district court4 against
Waddle and others. Heartland Corporations asked for a permanent injunction to stem
an alleged campaign to harass and intimidate HCA, its employees and students and
their families.
Shortly after the raid, Heartland Corporations asked the district court for
emergency equitable relief to prevent Waddle from carrying out another raid absent
certain safeguards, including notice and hearings for affected parties. The district
court issued a preliminary injunction. Among other things, the court forbade Waddle
“from seeking or participating in any pre-hearing removal of all boarding children
from HCA unless all boarding children at HCA are directly involved in the underlying
facts that serve as the basis for such removal.” We affirmed the preliminary
injunction in 2003. See generally Heartland Acad. Cmty. Church v. Waddle, 335 F.3d
684, 688, 691 (8th Cir. 2003).
The district court then presided over a bench trial on Heartland Corporations’
request for a permanent injunction against Waddle and Ayers.5 The district court held
(1) Waddle and Ayers violated and conspired to violate Heartland Corporations’
Fourth Amendment rights to be free from unreasonable seizures; (2) Waddle and
4
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri, presided over the Equitable Relief Case.
5
Heartland Corporations added Ayers as a defendant after the raid.
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Ayers violated Heartland Corporations’ Fourteenth Amendment procedural and
substantive due process rights; and (3) Waddle violated Heartland Corporations’ First
Amendment rights to free association. The district court permanently enjoined
Waddle from “caus[ing] or attempt[ing] to cause the pre-notice or pre-hearing removal
of or tak[ing] into protective custody . . . children from [HCA] without reasonable
cause to believe that each child for whom protective custody or removal is sought is
in imminent danger[.]” The district court found Waddle “appear[ed] ready and willing
to once again remove the children from [HCA].” The court declined to enjoin Ayers,
however, because the court found she “expresse[d] no intention of engaging in such
behavior in the future[.]” We affirmed the permanent injunction in 2005. See
generally Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525, 537 (8th Cir.
2005) (Heartland II), aff’g 317 F. Supp. 2d 984 (E.D. Mo. 2004).
2. Present Lawsuit for Damages
In 2006, Heartland sued the Officials in their individual capacities for monetary
damages.6 Counts I through VI are § 1983 claims. In Count I, the Students and
Parents allege the Officials violated their Fourteenth Amendment rights to family
integrity. In Count II, the Students allege the Officials violated their Fourth and
Fourteenth Amendment rights to be free from unreasonable seizures. In Count III, the
Students and Parents claim the Officials violated their First and Fourteenth
Amendment rights to free association. In Count IV, the Students and Parents claim
the Officials violated their First and Fourteenth Amendment rights to religious liberty
and free speech. In Count V, Heartland claims certain Officials violated its First
Amendment rights to freedom of association. In Count VI, Heartland claims certain
6
The now-governing Second Amended Complaint states Heartland is suing the
Officials in their official capacities for the purpose of seeking equitable relief, but
Heartland has not sought equitable relief in this case.
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Officials violated its First Amendment rights to free speech and religious freedom.
Counts VII through IX are Missouri common law tort claims.7
The Officials moved for summary judgment, asking the district court to dismiss
Counts I through VI on qualified immunity grounds and to decline to exercise
supplemental jurisdiction over Counts VII through IX. After wading through an
extensive record—the Officials’ appendix on appeal is comprised of twelve volumes
and nearly 3,000 pages—the district court held there were genuine issues of material
fact precluding summary judgment with respect to Counts I, II, III, and V. The court
dismissed Counts IV and VI but allowed the remaining counts to proceed to trial. The
Officials appeal the denial of qualified immunity as to Counts I, II, III, and V.
II. DISCUSSION
A. Qualified Immunity: General Principles
“The doctrine of 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.’”
Pearson v. Callahan, 555 U.S. ___, ___, 129 S. Ct. 808, 815 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is not only a defense
to liability but also an immunity from suit. Id. Because qualified immunity “is
effectively lost if a case is erroneously permitted to go to trial,” a district court order
denying qualified immunity is immediately appealable under the collateral order
exception to the final judgment rule “to the extent that it turns on an issue of law.”
Mitchell v. Forsyth, 472 U.S. 511, 526-27, 530 (1985).
7
Heartland asserts Fourteenth Amendment procedural due process claims inhere
in the Second Amended Complaint. It appears the district court agreed and declined
to dismiss the due process claims on qualified immunity grounds. We consider the
procedural due process claims in our analysis. Cf. Heartland II, 427 F.3d at 534
(holding procedural due process claims inhered in a similar pleading).
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Inasmuch as we have jurisdiction, we review the district court’s denial of
qualified immunity de novo. See Nelson v. Corr. Med. Servs., 583 F.3d 522, 527 (8th
Cir. 2009) (en banc) (citing Plemmons v. Roberts, 439 F.3d 818, 822 (8th Cir. 2006)).
We consider two questions: (1) whether the plaintiff has shown the violation of a
statutory or constitutional right, and (2) whether that right was clearly established at
the time of the alleged misconduct. See Pearson, 129 S. Ct. at 815-16; Nelson, 583
F.3d at 528 (citation omitted).
We retain discretion to decide which of the two questions to answer first. See
Pearson, 129 S. Ct. at 818; Nelson, 583 F.3d at 528. With respect to the first question,
we view the summary judgment record in the light most favorable to the nonmoving
party, Heartland, and afford Heartland “‘all relevant inferences.’” Nelson, 583 F.3d
at 527 (quoting Plemmons, 439 F.3d at 822). With respect to the second question, we
evaluate “the ‘objective legal reasonableness of the [alleged misconduct], assessed in
light of the legal rules that were clearly established at the time it was taken.’”
Pearson, 129 S. Ct. at 822 (quoting Wilson v. Layne, 526 U.S. 603, 614 (1999)). In
other words, we seek the answer to the second question “‘in light of the specific
context of the case, not as a broad general proposition.’” Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)), overruled in part on other grounds by Pearson, 129 S. Ct. at 818.
B. The Officials’ “I Didn’t Do It!” Defenses
1. Arguments
The Officials’ primary argument on appeal is that the district court failed to
assess their respective conduct individually when deciding whether they were entitled
to qualified immunity. For example, the Officials point out the district court
repeatedly referred to them “collectively as ‘defendants.’” Various Officials then
argue Heartland adduced insufficient evidence to demonstrate they participated in a
conspiracy to harass and intimidate HCA. See Marti v. City of Maplewood, Mo., 57
F.3d 680, 685 (8th Cir. 1995) (citation omitted) (requiring a civil rights plaintiff
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pressing a conspiracy claim to “show that two or more individuals conspired for the
purpose of depriving [the plaintiff of a constitutional right] and that an act was done
in furtherance of the conspiracy that caused an injury or deprivation”).
Heartland rejoins we do not have jurisdiction over the Officials’ primary
argument because it is fact-intensive and does not turn on an issue of law. Cf.
Mitchell, 472 U.S. at 530. Heartland opines the requirement to gauge an official’s
conduct individually is “[a]t most . . . dictum” and “practically speaking, is
unenforceable in any interlocutory appeal of a denial of summary judgment on
qualified immunity grounds.” In the alternative, Heartland maintains there is
sufficient evidence in the record to show all of the Officials participated in a
conspiracy to violate the constitutional rights of the Heartland community.
2. Duty to Evaluate the Officials’ Conduct Individually
We do not quarrel with the Officials’ premise that the district court was
required to evaluate their conduct individually. Authorities not involved in the
allegedly unconstitutional acts of their fellow public servants have not violated
constitutional rights and are entitled to qualified immunity. See, e.g., Grayson v.
Ross, 454 F.3d 802, 809-10 (8th Cir. 2006) (“[The defendant] was not involved in the
decision to accept [the plaintiff] at the jail; therefore, he could not have violated [the
plaintiff]’s constitutional rights based on [the plaintiff]’s intake and is entitled to
qualified immunity for the intake.”). “Liability for damages for a federal
constitutional tort is personal, so each defendant’s conduct must be independently
assessed.” Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006) (citing Doran v.
Eckold, 409 F.3d 958, 965 (8th Cir. 2005) (en banc)). Section 1983 does not sanction
tort by association.
We believe we have jurisdiction over the narrow threshold question of whether
the district court examined the Officials’ conduct individually. See Northcutt, 441
F.3d at 591-92 (asserting jurisdiction, without discussion, for the purpose of
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independently assessing each defendant’s conduct). This threshold question asks only
whether the district court properly applied the law. See Mitchell, 472 U.S. at 530
(holding jurisdiction exists when the denial of qualified immunity “turns on an issue
of law”). This question does not, in itself, require us to resolve any disputed issues
of evidentiary sufficiency. See Kahle v. Leonard, 477 F.3d 544, 549 (8th Cir. 2007)
(reiterating “jurisdiction does not extend to issues of ‘evidence sufficiency, i.e., which
facts a party may, or may not, be able to prove at trial’” (quoting Johnson v. Jones,
515 U.S. 304, 313 (1995)).
After reviewing the district court’s order, we do not agree with the Officials
that the district court shirked its duty to gauge the Officials’ conduct individually.
Although the district court did not cite cases such as Northcutt, Doran, or Grayson, the
court recognized qualified immunity is “to be applied to a particular defendant’s
conduct.” The court expressly held “genuine issues of material fact exist with respect
to the degree of each defendant’s involvement in the mass removal.”
The district court was not required to provide the Officials with an exhaustive
written analysis of the merits of each claim as to each defendant. Cf. United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (stating district courts need
not “‘provide a mechanical recitation of the [18 U.S.C.] § 3553(a) factors when
determining a sentence’” (quoting United States v. Walking Eagle, 553 F.3d 654, 659
(8th Cir. 2009)). See also Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (remarking
that the district court did not identify all the bases for its order denying qualified
immunity and the “cumbersome review of the record to determine what facts the
district court . . . likely assumed. . . . is the task . . . facing the Court of Appeals”).
Time is a precious commodity for busy district court judges, and judicial opinions
need not resemble law review articles.
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3. “I Didn’t Do It!”
We lack jurisdiction over the Officials’ arguments that Heartland adduced
insufficient evidence to demonstrate various Officials participated in a conspiracy to
harass and intimidate HCA. These fact-intensive arguments amount to nothing more
than prohibited “I didn’t do it!” defenses. See Johnson, 515 U.S. at 316-17, 319-20;
Mueller v. Tinkham, 162 F.3d 999, 1004 (8th Cir. 1998).
In Johnson, the Supreme Court delineated the scope of the qualified immunity
exception to the final order rule. The Supreme Court cautioned that “considerations
of delay, comparative expertise of trial and appellate courts, and wise use of appellate
resources argue in favor of limiting interlocutory appeals of ‘qualified immunity’
matters to cases presenting more abstract issues of law.” Johnson, 515 U.S. at 317.
The Court held “a defendant, entitled to invoke a qualified immunity defense, may not
appeal a district court’s summary judgment order insofar as that order determines
whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.” Id. at
319-20. The Supreme Court made clear we must eschew fact-intensive “[W]e didn’t
do it!” defenses and confine appellate review to “neat abstract issues of law.” Id. at
316-17 (citations omitted).8
In Mueller, a married couple brought a § 1983 action against two police
detectives for conspiring to violate their Fourth and Fourteenth Amendment rights.
Mueller, 162 F.3d at 1001-02. The couple alleged the detectives applied for and
executed a search warrant without probable cause. Id. The district court denied the
8
The neat abstract issue of law “typically” is whether the constitutional right at
issue in the appeal was “clearly established” at the time of the alleged misconduct.
See Behrens, 516 U.S. at 313; cf. Wilkie v. Robbins, 551 U.S. 537, 549 & n.4 (2007)
(exercising jurisdiction to decide whether there is a federal constitutional tort action
to challenge interference with property rights); Hartman v. Moore, 547 U.S. 250, 256-
57 n.5 (2006) (exercising jurisdiction to review what elements a plaintiff needed to
plead and prove to establish a First Amendment retaliation claim).
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detectives’ motion for summary judgment. Id. at 1002. Relying upon Johnson, we
held we lacked jurisdiction to the extent the detectives argued the district court erred
in finding a genuine issue of material fact as to whether the detectives actually
conspired with one another to deprive the couple of their constitutional rights. Id. at
1004 (citing Johnson, 515 U.S. at 313).
Other cases follow the teachings of Johnson and Mueller. See, e.g., Pendleton
v. St. Louis County, 178 F.3d 1007, 1010 (8th Cir. 1999) (dismissing appeal for want
of jurisdiction to the extent the defendants argued “insufficient evidence links them
to a conspiracy to retaliate against Plaintiffs for sending the fax”). Put simply, we lack
jurisdiction when a defendant attempts to argue on appeal that he did not do what the
civil rights plaintiff accuses him of doing. See, e.g., Behrens, 516 U.S. at 313
(construing Johnson to hold there is no interlocutory appellate 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”); Brown v. Fortner, 518 F.3d
552, 557 (8th Cir. 2008) (“‘[I]f the issues relate to whether the actor actually
committed the act of which he is accused . . . or other similar matters that the plaintiff
must prove, we have no jurisdiction to review them in an interlocutory appeal of a
denial of a summary-judgment motion based on qualified immunity.’” (quoting
Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006))); Kahle, 477 F.3d at 549
(same); Walker v. City of Pine Bluff, 414 F.3d 989, 991 (8th Cir. 2005) (similar).
In response to Heartland’s jurisdictional challenge, the Officials try to couch
their fact-intensive “I didn’t do it!” defenses in the language of a purely legal
argument. The Officials characterize the issue before us as whether the evidence
Heartland adduced is sufficient to survive scrutiny under Fed. R. Civ. P. 56. The
Officials stress they do not dispute Heartland’s evidence, but only challenge its
sufficiency to establish violations of clearly established constitutional rights.
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We decline to elevate the form of the Officials’ argument over its substance.
See White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008) (“Even if a defendant
frames an issue in terms of qualified immunity, we should determine whether he is
simply arguing that the plaintiff offered insufficient evidence to create a material issue
of fact.” (citing Thomas v. Talley, 251 F.3d 743, 747 (8th Cir. 2001))). What matters
is the gravamen of the Officials’ argument, and here the Officials are each attempting
to assert the “I didn’t do it!” defense the Supreme Court declined to consider in
Johnson and we declined to consider in Mueller. To entertain the Officials’ arguments
now would require us to conduct a highly fact-intensive analysis of the record at a
relatively early juncture in the case.
We recognize the Supreme Court in Behrens reiterated “‘a court of appeals may
have to undertake a cumbersome review of the record to determine what facts the
district court, in the light most favorable to the nonmoving party, likely assumed’”
because “Johnson permits [defendants] to claim on appeal that all of the conduct
which the [d]istrict [c]ourt deemed sufficiently supported for purposes of summary
judgment met the Harlow standard of ‘objective legal reasonableness.’” Behrens, 516
U.S. at 313 (quoting Johnson, 515 U.S. at 319). The problem here is that the Officials
ask us to do more than determine whether the conduct Heartland faults was
objectively reasonable under the circumstances. The Officials maintain they did not
participate in a conspiracy to harass or intimidate HCA.
The Supreme Court recently foreclosed the Officials’ attempted end-run around
Johnson. In Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S. Ct. 1937, 1947 (2009), the
Court observed:
In finding [the district court’s order in Johnson] not a “final decision” .
. . , the Johnson Court cited Mitchell for the proposition that only
decisions turning “‘on an issue of law’” are subject to immediate appeal.
[Johnson, 515 U.S. at 313.] Though determining whether there is a
genuine issue of material fact at summary judgment is a question of law,
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it is a legal question that sits near the law-fact divide. Or as we said in
Johnson, it is a “fact-related” legal inquiry. [Id. at 314.] To conduct it,
a court of appeals may be required to consult a “vast pretrial record, with
numerous conflicting affidavits, depositions, and other discovery
materials.” [Id. at 316.] That process generally involves matters more
within a district court’s ken and may replicate inefficiently questions that
will arise on appeal following final judgment. [Id.] Finding those
concerns predominant, Johnson held that the collateral orders that are
“final” under Mitchell turn on “abstract,” rather than “fact-based,” issues
of law. [Id. at 317.]
We adhere to Johnson, Mueller, and Iqbal and hold we lack jurisdiction to entertain
the Officials’ “I didn’t do it” defenses.
C. Violations of Clearly Established Rights
We now turn to the remaining portion of the Officials’ appeal and examine
whether the Officials’ alleged misconduct “‘violated a clearly established
constitutional or statutory right of which a reasonable person would have known.’”
Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir. 2004) (quoting Yowell v. Combs, 89
F.3d 542, 544 (8th Cir. 1996)); see also Manzano v. S.D. Dep’t of Soc. Servs., 60 F.3d
505, 510 (8th Cir. 1995) (remarking that, in typical child abuse cases involving
removal and the right to family integrity, “it is nearly impossible to separate the
constitutional violation analysis from the clearly established right analysis”). We have
jurisdiction over this portion of the Officials’ appeal. See Kahle, 477 F.3d at 549
(“Although there is no interlocutory appellate jurisdiction to decide whether a
particular defendant actually engaged in the conduct alleged . . . ‘the reasonableness
of [defendants’] actions in light of a known risk are all reviewable in an appeal of a
denial of qualified immunity’”) (quoting Miller v. Schoenen, 75 F.3d 1305, 1308 (8th
Cir. 1996)).
The evidence Heartland presented to the district court—if believed—is so
outrageous we are presented with a case in which the civil rights defendants acted in
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a “plainly incompetent” manner or in “a knowing violation of a clearly established
precedent.” McClendon v. Story County Sheriff’s Office, 403 F.3d 510, 515 (8th Cir.
2005) (citation and internal marks omitted). We express no view as to the ultimate
truth. But under the version of the facts we must accept as true for purposes of this
interlocutory appeal, the Officials knowingly worked with one another to effect the
mass removal of HCA students without court orders, with court orders based upon
lies, or court orders devoid of probable cause. The Officials deprived Heartland of
notice and an opportunity to be heard, and then tried to cover up the Officials’
wrongdoing—with false, misleading, and incomplete statements.
All of Heartland’s relevant constitutional rights were clearly established on
October 30, 2001. The state of the law on October 30, 2001, gave the Officials fair
warning that effecting or at least conspiring to effect the mass removal of HCA
students with bogus ex parte orders potentially would violate Heartland’s Fourteenth
Amendment rights to family integrity, Fourth and Fourteenth Amendment rights to be
free from unreasonable seizures, First and Fourteenth Amendment rights to free
association, and Fourteenth Amendment rights to procedural due process. The
Supreme Court has long recognized the constitutional rights the Officials allegedly
infringed. See, e.g., Chandler v. Miller, 520 U.S. 305, 308 (1997) (reiterating that
warrantless seizures generally violate the Fourth Amendment absent an individualized
reasonable suspicion determination); Roberts v. U.S. Jaycees, 468 U.S. 609, 622
(1984) (recognizing a First Amendment “right to associate with others in pursuit of
a wide variety of political, social, economic, educational, religious, and cultural
ends”); Lehr v. Robertson, 463 U.S. 248, 258 (1983) (stating “the relationship of love
and duty in a recognized family unit is an interest in liberty entitled to constitutional
protection” under the Fourteenth Amendment); Smith v. Org. of Foster Families for
Equal. & Reform, 431 U.S. 816, 848 (1977) (construing the Fourteenth Amendment’s
due process clause to require a hearing “‘[b]efore a person is deprived of a protected
interest . . . except for extraordinary situations where some valid governmental interest
is at stake that justifies postpone[ment]’” (quoting Bd. of Regents v. Roth, 408 U.S.
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564, 570 n.7 (1972) (internal marks omitted)); Pierce v. Soc’y of Sisters, 268 U.S.
510, 535-36 (1925) (extending some Fourteenth Amendment liberty guarantees to
private schools); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (construing the
Fourteenth Amendment to protect “not merely freedom from bodily restraint but also
the right of the individual . . . to acquire useful knowledge . . . to . . . bring up children,
[and] to worship God according to the dictates of his own conscience”); see also
Whisman ex rel. Whisman v. Rhinehart, 119 F.3d 1303, 1310 (8th Cir. 1997) (stating
procedural due process in the context of child abuse investigations requires an
adequate post-deprivation hearing); Thomason v. SCAN Volunteer Servs., Inc., 85
F.3d 1365, 1371-72, 1373 (8th Cir. 1996) (addressing whether the officials’ disruption
of familial relations was so disproportionate as to rise to the level of a constitutional
deprivation and recognizing “the vital importance of curbing overzealous suspicion
and intervention on the part of . . . government officials” when allegations of child
abuse are made).
This is not a case in which it is undisputed the relevant authorities had a
reasonable suspicion to suspect children were in imminent danger at the time of
removal. Cf. Collins v. Bellinghausen, 153 F.3d 591, 596 (8th Cir. 1998) (asserting
qualified immunity is appropriate to the extent the juvenile officer’s “actions are
properly founded upon a reasonable suspicion of child abuse”); Thomason, 85 F.3d
at 1373 (holding a reasonable suspicion of life-threatening abuse of a child trumps a
parent’s Fourteenth Amendment right to family integrity). In making this legal
determination, we reject the Officials’ suggestion that various reports of child abuse
at HCA justified their actions. Heartland alleges the Officials fabricated and
exaggerated the reports of child abuse to suit the Officials’ own ends. Cf. Thomason,
85 F.3d at 1371-72. Under Heartland’s version of the facts, the Officials conspired
to raid HCA even though they knew HCA posed no imminent threat of child abuse to
HCA students. Heartland Corporations, for example, repeatedly attempted to work
with the Officials and other relevant juvenile authorities to ensure the safety of HCA’s
students. Instead of accepting Heartland Corporations’ voluntary and good-faith
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gestures, the Officials used exaggerated, fabricated child abuse reports as a pretext for
the raid.
Heartland did not present us with a pre-October 2001 case with identical facts.
This is not dispositive. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(announcing “officials can still be on notice that their conduct violates established law
even in novel factual circumstances”). The Supreme Court has observed, “[t]here has
never been . . . a [§] 1983 case accusing welfare officials of selling foster children into
slavery; it does not follow that if such a case arose, the officials would be immune
from damages.” United States v. Lanier, 520 U.S. 259, 271 (1997) (citation and
internal marks omitted). “[T]he salient question . . . is whether the state of the law [on
October 30, 2001] gave respondents fair warning that their alleged [misconduct] was
unconstitutional.” Hope, 536 U.S. at 741.
The Officials insist they did not have fair warning that conspiring to effect the
mass removal of HCA students would violate Heartland’s constitutional rights in part
because state and federal law condoned their actions. See, e.g., Farid v. Smith, 850
F.2d 917, 923 (2d Cir. 1988). The Officials point out Missouri permits a juvenile
officer to seize a child upon “reasonable cause to believe [the child] is without proper
care, custody, or support and that temporary protective custody is necessary to prevent
personal harm to the [child].” Mo. Sup. Ct. R. 111.01(a)(4). Missouri purportedly has
a “sibling rule,” which recognizes that abuse of one sibling is prima facie evidence of
abuse of other siblings who reside in the same household. See, e.g., D.G.N. v. S.M.,
691 S.W.2d 909, 911-12 (Mo. 1985) (en banc); cf. Myers v. Morris, 810 F.2d 1437,
1463 (8th Cir. 1987) (“If law enforcement personnel who have at least arguable
probable cause to believe that adults have been molesting children are not entitled to
reasonable belief that the adults may pose a danger to their own children, then the law
was (and is) not clearly established on this point.”), abrogated on other grounds by
Burns v. Reed, 500 U.S. 478 (1991). The Officials note 42 U.S.C.
§ 5106a(b)(2)(A)(iii) required Missouri to “protect the safety of the abused or
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neglected child and of any other child under the same care who may also be in danger
of abuse or neglect and ensuring their placement in a safe environment.”
The problem with the Officials’ argument is that it presumes a view of the facts
in the light most favorable to the Officials, not Heartland. Under Heartland’s
recitation of the facts, which this Court, for now, must accept as true, the Officials did
not comply with Missouri or federal law; and the Officials worked together to seize
HCA students even though all relevant available information indicated the students
were not at immediate risk of child abuse or neglect. If we assume, for example, the
sibling rule should apply with equal force in an institutional setting, the Officials did
not have reasonable cause to believe temporary custody was necessary to prevent
personal harm to all the juveniles the Officials seized. Indeed, four of the boarding
students were not even juveniles. Mass removal arguably was not necessary because
HCA had repeatedly expressed its willingness to work with DFS and had done so.
Lesser measures, including measures that would have provided notice and a hearing
to Heartland, were available to the Officials.
D. Offensive Collateral Estoppel
Heartland suggests the district court should have applied the doctrine of
offensive collateral estoppel to preclude the Officials from asserting a qualified
immunity defense. Heartland identifies that, in Heartland II, we affirmed the district
court’s holding that Waddle violated Heartland Corporations’ Fourteenth Amendment
rights to family integrity, Fourth and Fourteenth Amendment rights to be free from
unreasonable seizures, and First and Fourteenth Amendment rights to free association.
Because those same rights are at issue here, Heartland argues Heartland II
conclusively establishes Waddle’s liability for damages and is “persuasive” as to
whether the other Officials are also liable. The district court declined to apply the
offensive collateral estoppel doctrine. See also Parklane Hosiery Co. v. Shore, 439
U.S. 322, 329 n.11 (1979) (noting commentators have expressed reservations about
applying the offensive collateral estoppel doctrine).
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“Offensive collateral estoppel is ‘an attempt by a plaintiff to rely on a prior
adjudication of an issue to prevent the defendant from challenging a fact necessary to
the plaintiff’s case and on which the plaintiff carries the burden of proof.’” Allstate
Ins. Co. v. Blount, 491 F.3d 903, 912 n.9 (8th Cir. 2007) (quoting James v. Paul, 49
S.W.3d 678, 685 (Mo. 2001) (en banc)). A district court has “broad discretion” in
deciding whether to apply the offensive collateral estoppel doctrine. See White Earth
Band of Chippewa Indians v. Alexander, 683 F.2d 1129, 1134 (8th Cir. 1982) (citing
Parklane Hosiery Co., 439 U.S. at 331). Because we do not disturb the district court’s
decision to deny the Officials’ motion for summary judgment for the reasons set forth
in Parts II.B and II.C above, at the present time we need not decide whether the
district court abused its broad discretion in declining to apply the doctrine of offensive
collateral estoppel.
III. CONCLUSION
Where we have jurisdiction over the Officials’ interlocutory appeal, the district
court’s order denying summary judgment is affirmed. We dismiss the remainder of
the appeal for lack of jurisdiction. See Miller v. Schoenen, 75 F.3d 1305, 1311 (8th
Cir. 1996).
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