dissenting.
I recognize that I am bound by the panel opinion in this case, McGee v. Hester, 724 F.2d 89 (8th Cir.1983), from which I also dissented, but I believe that the evidence at the second trial of this case did not satisfy the requirements set down in our earlier opinion and that the plaintiff failed to establish a submissible case.
Our earlier opinion required that the methods of surveillance be intrusive and made clear that on remand the jury should determine “whether the appellees engaged in conduct that discouraged customers from purchasing liquor at McGee’s store and whether the appellees intended such a result to flow from their actions. In short, we feel that the appellees’ conduct must be intentional and substantial if McGee is to succeed on the merits.” McGee v. Hester, 724 F.2d at 92. We distinguished this case from an earlier district court case dealing with out-of-state surveillance, Berbiglia v. Cheney, 249 F.Supp. 258 (W.D.Mo.1965), because in Bergilia there was no contact with customers nor any attempt to deter them from making purchases. The factual basis for our earlier decision in McGee was the following catalog of methods and practices: “parking five to ten feet from McGee’s front door for long periods of time; taking pictures of customers; conspicuously writing down customers’ license plate numbers; following customers leaving the liquor store; parking extremely close to McGee’s business when no parking stalls were available; and coming into the store and following customers out as they left.” 724 F.2d at 90.
The district court was deeply troubled with the submissibility of the case and expressed doubt that there was an adequate evidentiary basis for the jury’s answers to several of the interrogatories. Specifically, the court doubted the evidentiary basis for the finding that the surveillances by agents of the Tennessee ABC were in fact conducted openly and overtly, and resulted in deterring or frightening away the plaintiff’s legitimate customers. It finally concluded that, in this court’s earlier determi*1199nation, we had before us the same factual information that was developed at trial and that, accordingly, we would be satisfied that there was a proper evidentiary basis for these interrogatories.
I first observe that the catalog of facts set out in our earlier opinion appears to be taken from the complaint. Those facts, however, were not substantiated by evidence at trial. The only evidence of an agent parking directly in front of the store involved Agent Gammon, and there was no testimony at all as to how long he was parked. Tr. at 34. The other testimony dealt with cars parked farther away from the store. McGee could not identify any Tennessee agents that took pictures of his customers. He stated only that someone once told him that there was a person outside with a camera, but when McGee rushed outside, the car sped away. Tr. at 56. One of the employees testified that he saw persons in cars with what he thought were cameras and field glasses, but he could not state whether they took any photographs. Tr. at 101-103. McGee testified that he saw an older man in a car with a note pad but he could not see what the man was writing. Tr. at 38. McGee testified specifically that Agent Gammon never talked to customers and that he never saw any agents talk to customers outside the store. The only exception was when McGee himself asked an agent, in front of a customer, if he was an agent of the Tennessee ABC. Tr. at 55. One of the employees testified that an agent came into the store and walked around but didn’t speak to anyone. Tr. at 85. The same employee recalled two customers who saw the officers and said they were not going to buy any liquor. He testified that those customers had asked him about the ABC agent situation, and when he pointed out the cars with the agents, the customers said that they were not going to do business that day. Tr. at 98-99.
McGee identified two customers who saw cars on the lot: David Chaffin and Harold Shaw. Tr. at 47. Chaffin testified that he came to the store, went outside with McGee and that they noticed a car midway in the lot. Chaffin told McGee that he should try to get the cars off the lot because it was going to hurt his business. Tr. at 108. The antenna on the unmarked car was the only thing that drew his attention to it. Tr. at 110. Shaw testified to a telephone conversation in which he told McGee that McGee might lose a customer because Shaw was worried about being stopped and harassed. Tr. at 146. Also, he testified that McGee told him that the store was being watched and that the agents were taking license numbers. Tr. at 146-147.
This evidence simply falls short of supporting the jury’s finding that the agents conducted surveillance openly and overtly that resulted in deterring or frightening away legitimate customers. There was no evidence that the agents contacted the customers or attempted to deter them from making purchases — facts we found important in our earlier decision. There was no evidence of the agents conspicuously writing down license plate numbers or following customers out of the store as they left. There was evidence that one customer was arrested when he returned to Tennessee after purchasing a quantity of liquor, but the evidence did not establish that the surveillance that led to the arrest was conducted openly and overtly. While there was strong evidence of Hester’s intentions, which the jury evidently believed, our earlier opinion emphasized two requirements: not only must Hester’s conduct be intentional, but the agent’s conduct must also be intrusive. The court today chooses to avoid careful consideration of the evidence, which falls woefully short of meeting the second requirement established in our earlier opinion.
I conclude that the district court was correctly concerned that there was not substantial evidence to support the findings of the jury. The district court submitted the issue simply because he believed that our earlier decision required him to do so. I believe that the evidence failed to satisfy the requirement laid down in this court’s earlier opinion that the methods of surveillance be so intrusive as to violate McGee’s clearly established property right. I would *1200reverse and remand for entry of judgment for defendants.