                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 01-3336
                               ________________

Michael R. Hawkins; David A.             *
Hennenflow; Jacqueline L.                *
Springer; Larry D. Johnson; Robert       *
A. Wescott; Tracy L. Clevenger;          *
William J. Fields; Maria E.              *
Morrison; Todd M. Herdman;               *
Nancy J. Johnson; Dana L.                *      Appeal from the United States
Huffman,                                 *      District Court for the
                                         *      Western District of Missouri.
            Appellees,                   *
                                         *
      v.                                 *
                                         *
Gary Holloway,                           *
                                         *
            Appellant.                   *

                               ________________

                               Submitted: May 13, 2002
                                   Filed: January 17, 2003
                               ________________

Before HANSEN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and
      PRATT, District Judge.1
                              ________________

HANSEN, Circuit Judge.

      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
       Nine plaintiffs2 who worked at various times for the Ray County, Missouri,
Sheriff's Department brought this 42 U.S.C. § 1983 action against Sheriff Gary
Holloway. Plaintiffs allege that Sheriff Holloway threatened to shoot several of them
with his loaded handguns and that the sheriff inappropriately touched them and made
sexually suggestive comments to them during the course of their employment. They
claim the sheriff's malfeasance violated their substantive due process rights under the
Constitution and gave rise to several violations of state law as well. On summary
judgment, the district court ruled that Sheriff Holloway was not entitled to qualified
immunity for the alleged violations of federal law or public official immunity under
Missouri law for the plaintiffs' state law claims. We conclude, however, that the
summary judgment record fails to support several of the plaintiffs' purported
substantive due process violations and therefore we reverse the judgment of the
district court as to those claims. We affirm in all other respects.

                                           I.

       We begin our review of the district court's judgment with the plaintiffs'
constitutionally based substantive due process claims. In addition to providing
procedural safeguards when the government seeks to deprive an individual of a
protected right, the Fourteenth Amendment to the Constitution protects substantive
aspects of an individual's liberty from impermissible government restrictions. Harrah
Indep. Sch. Dist. v. Martin, 440 U.S. 194, 197 (1979). Substantive due process offers
only limited protections and only guards against the exercise of arbitrary and
oppressive government power. Daniels v. Williams, 474 U.S. 327, 331 (1986). In
the context of allegations that a state official has abused his executive power, the test
we employ to ascertain a valid substantive due process violation is "whether the


      2
        Plaintiff Nancy Johnson is docketed as an appellee, but she is not named in
any of the claims at issue on appeal. After we heard arguments in this appeal,
plaintiff Maria Morrison reached a settlement with Sheriff Gary Holloway.
                                           2
behavior of the governmental officer is so egregious, so outrageous, that it may fairly
be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523
U.S. 833, 848 n.8 (1998). The Supreme Court has been reluctant to expand the
protections afforded by substantive due process "because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended," and it has only
done so with the "exercise [of] the utmost care." Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992). We have noted the following:

      The guarantee of due process draws a line between the power of the
      government, on the one hand, and the security of the individual, on the
      other. This line is not a fixed one like a property boundary. Its location
      must be surveyed anew by the court in each case through an examination
      of the benchmarks disclosed by the circumstances surrounding the case.

Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir. 1986).

                      A. Facts Relevant to Qualified Immunity

       Because Holloway appeals from the denial of qualified immunity, our review
is quite limited. Normally, the denial of summary judgment is a nonfinal order that
cannot be appealed. However, a defendant may immediately appeal a district court's
denial of qualified immunity pursuant to the collateral order doctrine. In this context,
our review is limited to determining whether the official is entitled to qualified
immunity based on the summary judgment facts as described by the district court.
Turner v. Ark. Ins. Dep't, 297 F.3d 751, 754 (8th Cir. 2002). In other words, we have
jurisdiction to review whether an official is entitled to immunity to the extent the
question turns on an issue of law, but we may not review a district court's conclusion
that the pretrial record presents a sufficient factual dispute requiring a trial.3 Johnson


      3
       As the Supreme Court recognized in Johnson, 515 U.S. at 319, there might be
times when it is not clear what disputed facts the district court relied on in denying
                                            3
v. Jones, 515 U.S. 304, 319-20 (1995). With this in mind, the qualified immunity
inquiry requires us first to determine whether the summary judgment facts as
described by the district court demonstrate a violation of the plaintiffs' constitutional
substantive due process rights, and if so, we must then ascertain whether the
violations were clearly established at the time of the sheriff's alleged conduct. See
Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000).

       Plaintiffs' substantive due process claims can be grouped into two categories:
(1) those involving the sheriff's alleged sexually assaultive and abusive behavior
directed against both male and female employees, and (2) those involving the sheriff's
threats to shoot several of the employees during their employment. Because the
employees' claims arise out of numerous and distinct episodes of the sheriff's alleged
malfeasance, we set forth the relevant summary judgment facts individually by
plaintiff as the district court described them. We have also reviewed the summary
judgment record to ascertain whether it contains any facts that the court may have
assumed that would support its denial of qualified immunity. See supra at 3 n.3.

                                   Michael Hawkins

      Michael Hawkins alleges that Sheriff Holloway grabbed Hawkins' clothed
crotch area and touched his genitals through his clothing. The sheriff allegedly made
comments such as, "can I have some lovin's?," or other vulgar sexual remarks when
he touched or grabbed Hawkins. Hawkins testified during his deposition that he
believed the remarks were intended as sexual overtures. Hawkins identifies other
occasions when the sheriff pinched, grabbed, or jammed his thumb into Hawkins'



summary judgment. In such a situation, the Court explained that "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."
Id.
                                           4
clothed buttocks, and one occasion when the sheriff bent down and sucked on
Hawkins' ear lobe and told Hawkins that he was just trying to give him "some
lovin's." (J.A. at 1245.) Hawkins also claims that in September 1997, Sheriff
Holloway pulled his service revolver on him after Hawkins made a joke about the
sheriff. The sheriff shoved the weapon into Hawkins' genitals and, with his finger on
the trigger, told Hawkins, "You get smart with me, I'll blow your f___ing balls off."
(J.A. at 315.) Hawkins identifies several other occasions when the sheriff pointed his
weapon at him.

                                 David Hennenflow

       David Hennenflow worked in the department from June 1997 until he was fired
in August 1999. He claims that the sheriff repeatedly grabbed his clothed chest and
buttocks throughout his employment and that the sheriff frequently asked him if he
wanted to see the sheriff's "pee pee." The sheriff also twice asked whether
Hennenflow wanted "to take the wrinkles out" of the sheriff's penis. (J.A. at 381.)
Like Hawkins, Hennenflow identifies an incident when the sheriff pointed a weapon
at him. In October 1997, Hennenflow made a comment to the sheriff about taking
night calls. In response, Sheriff Holloway pointed his weapon at Hennenflow's crotch
and stated, "I'll blow your balls off."

                                Jacqueline Springer

       Jacqueline Springer, a deputy from October 1996 until November 1999, alleges
the sheriff inappropriately touched her and made vulgar comments to her during her
employment. The sheriff once came up from behind her and placed his hands around
her and grabbed her breasts. (J.A. at 629.) On several occasions, the sheriff stood
next to her and pulled her close to him. Often times when the sheriff did so, he laid
his hand on Springer's breast. The sheriff often picked up Springer's beverage, placed
it near his crotch, and asked Springer if she wanted him to fill it up. Springer was

                                          5
also present when the sheriff pulled his weapon on others, and she feared for her
safety during the incidents.

                                   Larry Johnson

        Larry Johnson worked as a sheriff's deputy from May 1997 until he was
terminated in August 1999. Johnson was present when the sheriff pointed his weapon
at Hawkins' and Hennenflow's crotches and when the sheriff pointed a weapon at a
state trooper while at the sheriff's home. Numerous individuals, including Hawkins
and plaintiff Robert Wescott, were at the sheriff's home for a barbeque. The trooper
moved some papers on the sheriff's counter. Upset at the trooper, the sheriff then
pulled a loaded gun from beneath the counter, pointed it at the trooper, and told the
trooper to leave the papers alone. Fearing that the sheriff intended to shoot the
trooper, Johnson placed his hand on his own weapon as a precaution. The sheriff
eventually put down his weapon, and the group continued their meal. Johnson was
also present when Sheriff Holloway allegedly pulled a weapon on a citizen visiting
the sheriff's department. In both incidents, Johnson feared for his own safety even
though he was not the subject of the sheriff's scorn.

                                  Robert Wescott

       Robert Wescott, a sheriff's deputy from April 1998 until October 1999, alleges
that the sheriff grabbed or pinched his clothed buttocks on numerous occasions and
slapped him in the back of the head once. The sheriff also made vulgar comments to
Wescott, such as "wanna see my pee pee?" Wescott also points out that he was
present when the sheriff pulled a weapon on the trooper and the citizen.




                                         6
                                   Tracy Clevenger

        Tracy Clevenger, a deputy from June 1995 until September 1999, alleges that
the sheriff grabbed and squeezed the inside of his thigh numerous times and that the
sheriff's hand often touched his genitals through his pants when he did so. Sheriff
Holloway also made abusive comments and sexual remarks to Clevenger, such as
nicknaming him a portion of the female anatomy and asking him how many men
came to his "sperm factory." The sheriff once unzipped his pants and placed
Clevenger's rolled up paycheck in them and suggested that Clevenger perform a sex
act if Clevenger wanted his paycheck. Clevenger alleges other offensive behavior on
the sheriff's part and that he was present when the sheriff pointed his weapon, with
his finger on the trigger, at a city police officer.

                                    William Fields

       William Fields alleges that the sheriff frequently grabbed the inside of his
thigh, touching his genitals several times, and that the sheriff often groped his chest
and tried to touch him. He also contends the sheriff placed a banana by his crotch and
asked Fields if he wanted a banana, that the sheriff jabbed Fields in the buttocks with
a cane, and that the sheriff frequently made vulgar comments to him. The sheriff also
pulled a weapon on Fields and pointed it at his chest. The sheriff then told him, if the
first gun "won't do it, this one will," and pulled a second weapon out and pointed it
at Fields.

                                   Todd Herdman

      Todd Herdman alleges that Sheriff Holloway grabbed, pinched, and tickled him
throughout his employment and that the sheriff made childish and vulgar comments
to him, such as, “Do you want to see my pee pee?” and asked if Herdman wanted
some "lovin's." The sheriff also became upset at Herdman once because no one had

                                           7
made coffee. The sheriff told Herdman to get up and make the coffee or the sheriff
“was going to kick [Herdman's] ass up between [his] shoulders." (J.A. at 350.)

                                   Dana Huffman

       Dana Huffman was a secretary in the sheriff's department from March 1996
until January 1998, and describes two incidents when Sheriff Holloway pointed his
service revolver at her. On one of the occasions, the sheriff pulled his gun out of its
holster, pointed it at Huffman, and ordered her back to her office. She responded,
“don’t shoot me.” Huffman also claims the sheriff asked her ten times whether she
wanted “some lovin's” and called her "stupid" and a “fat ass.” She also identifies an
incident when she retreated to the men’s restroom as the sheriff pointed his finger at
her and berated her.

                                 B. Sexual Assaults

       Relying on our court's prior decisions in Haberthur v. City of Raymore, 119
F.3d 720 (8th Cir. 1997), and Rogers v. City of Little Rock, 152 F.3d 790 (8th Cir.
1998), the district court denied qualified immunity, reasoning that several of the
plaintiffs demonstrated a genuine issue of fact as to whether the sheriff had sexually
assaulted them in violation of their substantive due process right to bodily integrity.
We conclude, however, that the sheriff's alleged conduct is distinguishable from that
in Haberthur and Rogers and with one exception is insufficient to raise a genuine
issue of fact concerning whether that conduct amounts to an abuse of governmental
power that is "so 'brutal' and 'offensive'" that it was conscience shocking. S.S. v.
McMullen, 225 F.3d 960, 964 (8th Cir. 2000) (quoting Lewis, 523 U.S. at 847), cert.
denied, 532 U.S. 904 (2001); see Lewis, 523 U.S. at 848 n.8 (cautioning against
demoting the Constitution to "a font of tort law").




                                          8
       The Supreme Court has not yet had the opportunity to address whether a sexual
assault committed by a state actor may give rise to an actionable substantive due
process violation under § 1983. See Rogers, 152 F.3d at 795. Our court, however,
has had more than one opportunity to weigh in on the issue. In Haberthur, we
reversed the district court's dismissal of a plaintiff's substantive due process claim
arising out of a police officer's sexually-assaultive conduct. We recognized that an
actionable claim under § 1983 for a substantive due process violation may accrue
where a public official engages in "sexual fondling and touching or other egregious
sexual contact" under color of state law and concluded the plaintiff alleged facts
demonstrating such conduct. Haberthur, 119 F.3d at 723. In particular, the plaintiff
alleged that the police officer showed up at her workplace, placed his hands under her
shirt and fondled her breast, and caressed her body while making sexually suggestive
comments to her. Id. at 724. We characterized the alleged conduct as "intrusive,
demeaning, and violative of [the plaintiff's] personal integrity," and recognized that
the officer had threatened adverse police action in making his unwanted advances.
Id.

       A little over a year later, in Rogers, we upheld a district court's finding
following a bench trial that a police officer had sexually assaulted a woman in
violation of her substantive due process rights. 152 F.3d at 797. The facts
established that the officer pulled the woman over for a traffic violation and later
followed her home under the guise of obtaining her missing proof of automobile
insurance. At her home, the officer ordered her to disrobe, pushed her onto her bed,
and had sexual intercourse with her. We concluded that the facts supported a finding
that the intercourse was nonconsensual and that the officer accomplished the rape
through the exercise of coercive power that he possessed as a law enforcement
officer. 152 F.3d at 796-97. Recognizing that the officer's conduct was undertaken
with no legitimate governmental objective, we held that a police officer's commission
of a rape fell at the extreme end of the "'arbitrary exercise of the powers of


                                          9
government'" that substantive due process protections were intended to guard against.
Id. at 797 (quoting Lewis, 523 U.S. at 845).

       It is readily apparent that the allegations of "sexual assault" at issue in this case
are of a different breed than those in Rogers and Haberthur and (with the exception
of Ms. Springer) fail to establish the type of "sexual fondling and touching" that we
have indicated may support a constitutional violation of one's bodily integrity.
Haberthur, 119 F.3d at 723. In our review of the summary judgment record,
Hawkins, Hennenflow, Springer, Wescott, Clevenger and Fields make the most
egregious charges of sexual misconduct against Sheriff Holloway. They all allege
that while the sheriff was purportedly engaging in office horseplay, he grabbed,
touched, or brushed their clothed erogenous zones or other sensitive areas of their
body, and made sexually suggestive comments when doing so. While the sheriff's
alleged conduct with respect to the male officers is offensive and despicable, and
certainly inexcusable, it pales in comparison to the violation of personal integrity
occasioned by the officer's rape in Haberthur and the officer's actions in Rogers of
reaching under a woman's clothing and fondling her breasts. With respect to Ms.
Springer, we find the sheriff’s allegedly repeated intentional touching of her breasts
to constitute a violation of her bodily integrity sufficient to support a substantive due
process claim.

      The sheriff's conduct at issue is also distinguishable from that in Haberthur and
Rogers because the sheriff's touchings were not accompanied by threats of official
action if the employees rebuffed or complained of his perverted and juvenile
behavior. Cf. Haberthur, 119 F.3d at 724 ("The implication for further sexual contact
was in the larger context of threatening adverse official action by way of a ticket and
following her in his police car."). Instead, the sheriff engaged in his offensive
behavior in the context of junior high locker room style male horseplay in a
workplace that appears to us to have been permeated with childish and ill-advised
behavior unbecoming of law enforcement officers. Regardless of the sheriff's true

                                            10
motivations in engaging in this conduct, he did not threaten adverse police action.
Pointing to the sheriff's threats to shoot employees, plaintiffs argue that the sheriff
sought further sexual gratification by creating an environment where his employees
feared him and that he abused his law enforcement authority in that manner. A
reasonable jury, however, could not make that inferential leap because the sheriff's
alleged threats were unconnected to the specific events of his alleged sexually
inappropriate behavior. The two categories of the sheriff's conduct, therefore, must
be viewed as separate and distinct for purposes of the plaintiffs' substantive due
process claims.

       With the exception of Ms. Springer’s complaints, the plaintiffs' allegations of
inappropriate sexual contact on the sheriff's part instead fall into the category of
misconduct for which no constitutional remedy is available. See Collins, 503 U.S.
at 128 (stating that the Due Process Clause does not purport to supplant state tort
law); Askew v. Millerd, 191 F.3d 953, 958 (8th Cir. 1999) (noting that § 1983 does
not provide a remedy for every assault or battery that violates state law). Not every
inappropriate or unwanted touching by a public official, even if accompanied by
vulgar comments of a sexual nature, can amount to the "brutal and inhumane abuse
of official power" necessary to demonstrate a violation of an individual's bodily
integrity sufficient to support a constitutional violation. Moran v. Clarke, 296 F.3d
638, 647 (8th Cir. 2002) (en banc) (discussing the severity of conduct necessary to
establish a violation). For instance, in Reeve v. Oliver, our court refused to find a
substantive due process violation when a state actor touched and rubbed a woman's
back while staring at her chest. 41 F.3d 381, 382-83 (8th Cir. 1994). Similarly, in
Lillard v. Shelby County Bd. of Educators, 76 F.3d 716, 726 (6th Cir. 1996), the
Sixth Circuit held that a teacher's act of rubbing a student's stomach while he made
suggestive remarks to her did not violate the student's right to bodily integrity. See
also Petrone v. Cleveland State Univ., 993 F. Supp. 1119, 1126 (N.D. Ohio 1998)
(holding that allegations of a supervisor's sexual advances, including one where the
supervisor slid his hand along a woman's leg toward her pelvic area, did not state a

                                          11
substantive due process claim), disapproved of on other grounds in Kovacevich v.
Kent State Univ., 224 F.3d 806 (6th Cir. 2000). Cf. Berryhill v. Schriro, 137 F.3d
1073, 1076 (8th Cir. 1998) (concluding that brief touches to a person's buttocks do
not support a finding of a sexual assault amounting to cruel and unusual punishment).
It is a sad commentary on the state of our society, but allegations similar to those the
plaintiffs make against the sheriff are commonplace in many Title VII hostile work
environment cases that come before us, and they simply do not amount to behavior
that the Constitution prohibits under the rubric of contemporary conscience shocking
substantive due process. State tort law is, instead, a proper source of any remedy.

       Plaintiffs rely on several cases from other jurisdictions, which they contend
support a contrary conclusion. After reviewing those decisions and many others, we
are satisfied that they only illustrate that the sheriff's alleged conduct here (with the
exception of his physical conduct toward Ms. Springer) does not rise to a "sexual
assault" in violation of the plaintiffs' constitutional rights. See, e.g., Wudtke v. Davel,
128 F.3d 1057, 1063 (7th Cir. 1997) (facts showing school superintendent forced
teacher to perform fellatio supported substantive due process violation); Jones v.
Wellham, 104 F.3d 620, 628 (4th Cir. 1997) (recognizing that an officer's forcible
rape of a woman violates her substantive due process rights); Bennett v. Pippin, 74
F.3d 578, 589 (5th Cir.) (sheriff's rape of murder suspect violated her right to bodily
integrity), cert. denied, 519 U.S. 817 (1996); Doe v. Taylor Indep. Sch. Dist., 15 F.3d
443, 451-52 (5th Cir.) (15-year-old female student was deprived of substantive due
process when sexually molested by her teacher), cert. denied, 513 U.S. 815 (1994);
Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 727 (3d Cir. 1989) (allegations
that teacher coerced student into performing sex acts were sufficient to constitute an
intrusion into the child's bodily integrity), cert. denied, 493 U.S. 1044 (1990).

      Plaintiffs point to other evidence of the sheriff's abrasive conduct, verbal
harassment, physical altercations of a nonsexual nature, and other unprofessional
conduct to support their substantive due process claims. While there is abundant

                                            12
evidence of these incidents in the record, it is insufficient to support a
constitutional violation. See Costello v. Mitchell Pub. Sch. Dist. 79, 266 F.3d 916,
921 (8th Cir. 2001) (berating student in front of class does not amount to a
substantive due process violation); Doe v. Gooden, 214 F.3d 952, 955 (8th Cir. 2000)
(yelling, screaming, name-calling, and other verbal abuse does not demonstrate a
constitutional violation); Lillard, 76 F.3d at 725-26 (stating that it is inconceivable
that a "single slap" could shock the conscience); Jones v. Clinton, 974 F. Supp. 712,
725 (E.D. Ark. 1997) (finding no substantive due process violation where the
governor allegedly sought sex from an employee, exposed himself, and asserted that
he possessed ongoing authority over the female state employee). Because the facts
relied on by the district court do not demonstrate a violation of the plaintiffs' bodily
integrity resulting from a sexual assault (with the exception of Ms. Springer's case),
Sheriff Holloway is entitled to summary judgment on his assertion of qualified
immunity. He is not entitled to summary judgment on Ms. Springer's claims.

                             C. Threats of Deadly Force

       We turn next to plaintiffs' claims that Sheriff Holloway pointed loaded
weapons at several employees and threatened to shoot them. As one would imagine,
neither party has cited a case, nor have we come across one, where a public official
has threatened to employ deadly force as a means of employee discipline or as a way
to express frustration. The district court relied on Black v. Stephens, 662 F.2d 181
(3d Cir. 1981), cert. denied, 455 U.S. 1008 (1982), in concluding that plaintiffs'
allegations were sufficient to support a substantive due process violation. In Black,
the Third Circuit held that a plain-clothes officer's conduct of pointing his weapon at
the head of a motorist, without any legitimate law enforcement purpose for doing so,
was sufficient to satisfy the shocks-the-conscience standard. Id. at 188-89. Sheriff
Holloway does not question the Third Circuit's conclusion in Black but argues that
he threatened his employees in a joking manner and that the employees perceived his
conduct as a joke. In the event we find that his alleged conduct establishes a

                                          13
constitutional violation, he argues, alternatively, that he is entitled to qualified
immunity because there has been no judicial opinion that would have alerted him to
the unlawfulness of his acts.

       Only four of the plaintiffs (Hawkins, Hennenflow, Fields, and Huffman) have
alleged facts showing that the sheriff pulled a gun on them and threatened to shoot
them. In viewing the facts in their favor, we must reject the sheriff's perception of his
gun-slinging incidents as jovial horseplay among colleagues. As an initial point, we
note the astounding fact that Sheriff Holloway actually admitted during his deposition
testimony that he often pulled weapons on his employees and that it was "just in fun."
Not to any great surprise, plaintiffs contend the occurrences were anything but fun.
They present evidence that the sheriff pointed loaded weapons at them at close range,
often pointing to their genitals, and made direct and forceful threats to kill them or
cause grievous bodily injury. They also point to evidence that the sheriff was agitated
during the incidents, that his finger was on the trigger, and that they perceived his
threats to be real. The employees who found themselves facing the sheriff's barrel
raised their hands in surrender, asked the sheriff to put his weapon away, or otherwise
tried to placate the sheriff, thus permitting an inference that the sheriff's threats were
serious ones. A genuine issue of material fact therefore exists as to whether the
sheriff’s conduct amounted to a sincere threat of violence rather than a joke.

       As to whether the facts viewed in the plaintiffs' favor support a constitutional
violation, we agree with Black's holding that an official’s threat to employ deadly
force for no legitimate reason rises to a substantive due process violation. The
Supreme Court recognized in Collins v. City of Harker Heights that substantive due
process does not protect municipal employees from the unreasonable risk of harm in
the workplace. 503 U.S. at 129. But the sheriff's alleged conduct cannot be
characterized as an unreasonable risk incident to one's service as an employee in a
sheriff's department. Instead, the facts demonstrate that the sheriff deliberately
abused his power by threatening deadly force as a means of oppressing those

                                           14
employed in his department, thus elevating his conduct to the arbitrary and
conscience shocking behavior prohibited by substantive due process. See Robinson
v. Solano County, 278 F.3d 1007, 1014 (9th Cir. 2002) (discussing in dictum that an
officer's conduct in pointing a loaded weapon at a civilian without a legitimate law
enforcement basis shocks the conscience); see also Burton, 791 F.2d at 99, 100-101
(finding that a prisoner had stated a substantive due process claim when he alleged
that a prison guard drew and pointed a loaded pistol at him and ordered him to run so
that the guard would be justified in shooting him).

        We reject the sheriff's argument that if there was a violation, it was not one of
clearly established law. Qualified immunity protects a governmental official from
civil liability when his "conduct does not violate clearly established . . . constitutional
rights of which a reasonable person would have known." Sexton, 210 F.3d at 909
(internal quotations omitted). The Supreme Court recently held that the law is clear
if it gives the official "fair warning" that his conduct violated an individual's rights
when the officer acted. Hope v. Pelzer, 122 S. Ct. 2508, 2516 (2002). Although the
sheriff faults the district court for failing to cite to any case that is factually similar,
it was not necessary for the court to do so because Sheriff Holloway's alleged conduct
was so far beyond the bounds of the performance of his official duties that the
rationale underlying qualified immunity is inapplicable. As the Fourth Circuit
explained in In re Allen, 106 F.3d 582, 593 (4th Cir. 1997), cert. denied, 522 U.S.
1047 (1998), "an official who performs an act clearly established to be beyond the
scope of his discretionary authority is not entitled to claim qualified immunity under
§ 1983." See also Butz v. Economou, 438 U.S. 478, 495 (1978) (stating that qualified
immunity does not "abolish the liability of federal officers for actions manifestly
beyond their line of duty"); Jones v. Clinton, 72 F.3d 1354, 1358 (8th Cir. 1996)
("We are unaware . . . of any case in which any public official ever has been granted
any immunity from suit for his unofficial acts . . . ."), aff'd 520 U.S. 681 (1997). No




                                            15
reasonable official in the sheriff's shoes could have thought it within his duties to
threaten his employees with deadly force.4

       Several plaintiffs suggest that the sheriff violated their substantive due process
rights because they were placed in harm's way when the sheriff threatened others with
his weapon. However, an official's conduct must generally be intended to inflict harm
to be conscience shocking in the constitutional sense. Lewis, 523 U.S. at 849. There
is no evidence that the sheriff directed any threats at the bystanders during the
incident, or any other evidence that the sheriff wanted to harm the bystanders during
the episodes. We therefore conclude that the bystanders can maintain no substantive
due process claim against the sheriff.

                                           II.

        In addition to their federal claims, Hawkins and Johnson allege state law claims
that Sheriff Holloway wrongfully discharged them and tortiously interfered with their
contractual relations or valid business expectancy. They assert that Sheriff Holloway
fired them because they reported his offensive and dangerous behavior to the FBI,
county officials, and a local circuit judge. Hawkins, Springer, and Wescott also
allege claims that the sheriff's violent and sexual misconduct caused negligent
infliction of emotional distress. The district court ruled that Sheriff Holloway was not
entitled to public official immunity under Missouri law because the facts, viewed in



      4
       We pause to note that if the trier of fact ultimately determines that the sheriff's
threats amounted to misguided and dangerous horseplay among colleagues, his
conduct would not give rise to a substantive due process violation, for gross
negligence is not actionable under the Fourteenth Amendment's substantive due
process guarantees. See Wilson v. Lawrence County, 260 F.3d 946, 955 (8th Cir.
2001).


                                           16
the plaintiffs' favor, demonstrated that the sheriff's conduct was corrupt or otherwise
undertaken in bad faith. We agree.

       Under Missouri law, "[t]he doctrine of official immunity shields public officers
and state officials from civil liability for injuries arising out of their discretionary acts,
functions, or omissions performed in the exercise of their official duties." Harris v.
Munoz, 43 S.W.3d 384, 387 (Mo. Ct. App. 2001). Generally speaking, discretionary
acts are those acts involving the official's exercise of reason in developing a means
to an end, and "the employment of judgment to determine how or whether an act
should be performed or a course pursued." Id. As the district court recognized,
however, official immunity does not apply where the official's discretionary act was
undertaken in bad faith or with malice. Davis v. Bd. of Educ., 963 S.W.2d 679, 688-
89 (Mo. Ct. App. 1998).

       The record contains ample evidence supporting the district court's conclusion
that the plaintiffs' state law claims are premised on the sheriff's bad-faith conduct.
The negligent infliction claims are based on the same conduct underlying the parties'
substantive due process claims, and we find it impossible to characterize that
conduct–groping employees, making lewd sexual comments, and threatening
employees with death or physical harm–as the "exercise of reason" to which
immunity attaches. With respect to Hawkins' and Johnson's claims arising out of their
termination, they present evidence that the sheriff began a campaign to justify their
termination after the employees complained of his conduct and that the sheriff asked
another officer to prepare a false affidavit (in exchange for a promotion) to support
the legitimacy of the sheriff's termination decision. Accordingly, a jury could
reasonably infer that the sheriff's actions were undertaken in bad faith or with malice;
thus, the plaintiffs' state law claims are not barred by official immunity.




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                                          III.

       We conclude that only plaintiffs Hawkins, Hennenflow, Fields, and Huffman
have alleged facts that would permit a reasonable jury to find that Sheriff Holloway
violated their clearly established substantive due process rights. The potential
violations arise solely from these plaintiffs' allegations that the sheriff threatened
them with a loaded weapon. We also conclude that only Ms. Springer has sufficiently
alleged a constitutional violation based on the invasion of her bodily integrity. To the
extent the district court found otherwise, its judgment is reversed. We affirm the
judgment of the district court in all other respects.

      A true copy.

             Attest:

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




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