                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 03-2055
                                ___________

Thomas Moran,                          *
                                       *
              Plaintiff/Appellee,      *
                                       *
       v.                              *
                                       *
Anne-Marie Clarke; Robert Haar;        *
Wayman F. Smith, III; Jeffery Jamison; *   Appeal from the United States
Clarence Harmon, comprising the        *   District Court for the Eastern
Board of Police Commissioners          *   District of Missouri.
for the City of St. Louis; Ronald      *
Henderson; Paul M. Nocchiero;          *
Gregory Hawkins; Al Klein; Willie      *
Thirdkill,                             *
                                       *
              Defendants/Appellants,   *
                                       *
Jack Huelsmann; William Kusmec;        *
William Swiderski; Richard             *
Booker, Jr.; Terrence DuPree; Barry    *
Greene; Steven Petty; Harvey Laux,     *
                                       *
              Defendants.              *

                                ___________

                           Submitted: November 19, 2003

                               Filed: February 26, 2004
                                ___________
Before MORRIS SHEPPARD ARNOLD, BEAM, and MELLOY, Circuit Judges.
                         ___________

BEAM, Circuit Judge.

       This case returns to our court upon the district court's denial of the Appellants'
motion for summary judgment based on qualified immunity. Because it was clearly
established at all relevant times that the conduct at issue in this litigation would
amount to a substantive due process violation, we affirm.

I.    BACKGROUND

       The lengthy and involved facts of this unfortunate case are detailed in our prior
en banc opinion, Moran v. Clarke, 296 F.3d 638 (8th Cir. 2002) (en banc) (Moran I),
and are repeated here only to the extent necessary to dispose of the narrow issue
before us. Thomas Moran, a St. Louis city police officer brought this 42 U.S.C. §
1983 action against members of the St. Louis Board of Police Commissioners, the
Chief of Police, and four internal affairs police officers, all in their individual and
official capacities. As our prior opinion sets forth, the 1997 incident giving rise to
this lawsuit stems from a police brutality incident involving a developmentally
disabled individual. As a result of that incident, Moran claims that Appellants
manufactured evidence to implicate him in the beating, and conspired to effect his
suspension, arrest, and prosecution.

       The case first went to trial in November 1999, and resulted in judgment as a
matter of law for Appellants. We reversed that judgment. We held that Moran had
established a jury question on his substantive due process claims, stating:

      Viewing the record in the appropriate light, Moran established a
      plausible case for each of his contentions. He introduced evidence that
      tends to show a police department that publicly and financially


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      committed itself to producing a culprit for an alleged wrongdoing before
      any such wrongdoing was actually established. He produced proof of
      questionable procedures, of pressures placed on officers to incriminate
      a specific person or corroborate the department's official line, of a hasty
      condemnation of Moran and of improper consideration of his race.
      Moreover, he offered proof that, at various times, certain defendants
      purposely ignored evidence that strongly tended to exonerate him. In
      short, drawing all inferences in his favor, a reasonable jury could
      conclude that some or all of the defendants intentionally set up an
      innocent Moran for patently arbitrary reasons.

Id. at 647-48. Thus, we remanded the case for a new trial, and noted that the qualified
immunity defense had not yet been adjudicated. Id. at 650 n.6.

       Upon remand to the district court, Appellants filed a motion for summary
judgment based on qualified immunity. Appellants argue that due to the Supreme
Court's 1994 plurality opinion in Albright v. Oliver, 510 U.S. 266, 271, 274-75
(1994) (holding by plurality opinion that there was no substantive due process right
arising from a malicious prosecution), they could not have known that their actions
violated the Constitution. Appellants concede they are prohibited from relitigating
the merits of whether Moran alleges a viable substantive due process claim, but they
contend that they could not have foreseen the alleged change in the interpretation of
Albright until the en banc opinion was released. Thus, they claim, in 1997 it was not
clearly established that their actions violated the Constitution. The district court
denied the motion for qualified immunity and held that "[d]efendants can hardly claim
to not have had fair warning that conduct such as manufacturing evidence, conspiring
to wrongfully prosecute Moran, and other actions that shock the conscience and
offend human dignity, might not be unlawful or violative of [Moran's constitutional
rights]."




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II.   DISCUSSION

       Because Appellants appeal from the denial of qualified immunity, our review
is limited to the legal question of whether the officials are entitled to immunity. We
must accept the summary judgment facts as described by the district court because
evidentiary determinations are not presently appealable. Hawkins v. Holloway, 316
F.3d 777, 781 (8th Cir. 2003). Normally, the qualified immunity defense to a
substantive due process claim would require us to first determine whether the facts
advanced demonstrate a violation of Moran's constitutional substantive due process
rights. However, our prior opinion disposes of that matter, and Appellants concede
that this first question is not in dispute. Thus, the only question we decide here is
whether the Appellants' actions were clearly established as violative of Moran's
substantive due process rights at the time of the alleged conduct. Id.

       Appellants are not entitled to qualified immunity if they had "fair warning" that
their conduct violated Moran's rights. Hope v. Pelzer, 536 U.S. 730, 741 (2002). But
the absence of a factually similar case does not guarantee government officials the
shield of qualified immunity, especially in the substantive due process context.
Hawkins, 316 F.3d at 788. When government officials engage in conscious-
shocking, egregious behavior that is clearly outside the scope of their discretionary
authority, they are not entitled to qualified immunity under section 1983. Id.

       Appellants assert that the law was not clearly established. Specifically they
claim that due to existing case law, it was not clear that the Constitution forbade
officials from manufacturing evidence and using questionable procedures in an
attempt to scapegoat an officer for serious wrongdoing, possibly on account of his
race. Appellant defines the issue too narrowly. If this were proper, the "factually
indistinguishable case" theory dismissed by the Hawkins court would have prevailed.
While each qualified immunity inquiry is factually driven, e.g., Saucier v. Katz, 533
U.S. 194, 202 (2001), the fact remains that qualified immunity is reserved for state

                                          -4-
officials whose conduct is objectively reasonable in light of the clearly established
law at the time of the incident in question. Mueller v. Tinkham, 162 F.3d 999, 1002
(8th Cir. 1998). The key inquiry in deciding "whether a right is clearly established
is whether it would be clear to a reasonable officer that his conduct was unlawful in
the situation he confronted." Katz, 533 U.S. at 202.

       Even under the Supreme Court's generous authorization of the qualified
immunity defense, see Malley v. Briggs, 475 U.S. 335, 341 (1986) (explaining that
qualified immunity protects "all but the plainly incompetent or those who knowingly
violate the law"), Appellants cannot invoke it here. Appellants, especially as law
enforcement officials, knew or should reasonably have known that the specific
conduct outlined by Moran was unlawful. No reasonable official would believe it
was permissible to hatch a plan to scapegoat an innocent officer for acts of police
brutality against a developmentally disabled citizen. On April 14, 1997, and every
day thereafter, such actions were clearly beyond the scope of Appellants'
discretionary authority. Hawkins, 316 F.3d at 788. No reasonable officials in
Appellants' shoes could have thought they had the discretion to take these steps. Id.

      Appellants arguments based on Albright are unavailing. They argue that
because the Supreme Court held in Albright that a substantive due process claim
would not lie in a malicious prosecution claim, 510 U.S. at 271, 274-75, they could
not have been on notice that their conduct violated the Constitution. We disagree.
As we explained in Moran I, Appellants' purported actions went well beyond the
realm of malicious prosecution. 296 F.3d at 647. "Instead of simply allowing a
weakly supported prosecution to proceed," Moran asserts that Appellants engaged in
a "purposeful police conspiracy to manufacture . . . false evidence." Id.

       Viewing the summary judgment facts as found by the district court, the alleged
conduct of each of the Appellants "was so far beyond the bounds of the performance
of his official duties that the rationale underlying qualified immunity is inapplicable."

                                          -5-
Hawkins, 316 F.3d at 788. Finally, we decline Appellants' invitation that we
consider individual evidentiary questions that were rejected by the district court upon
a review of the facts. We have no jurisdiction to do so. Hawkins, 316 F.3d at 781.

III.   CONCLUSION

       We therefore affirm the judgment of the district court.
                       ______________________________




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