                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 07-1453
      ___________

Curtis W. McGhee Jr.,                     *
                                          *
             Appellee,                    *
                                          *
     v.                                   *
                                          *
Pottawattamie County, Iowa;               *
Joseph Hrvol; David Richter,              *
                                          *
          Appellants.                     *
______________________                    *   Appeals from the United States
                                          *   District Court for the
Terry Harrington, individually and in     *   Southern District of Iowa.
his capacity as the father of Nicole      *
Antoinette Harrington,                    *
                                          *
             Appellee,                    *
                                          *
     v.                                   *
                                          *
County of Pottawattamie, Iowa;            *
David Richter, in his individual and      *
official capacities; Joseph Hrvol, in     *
his individual and official capacities,   *
                                          *
             Appellants.                  *
      ___________

      No. 07-1524
      ___________

Curtis W. McGhee Jr.,                   *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Matthew Wilber,                         *
                                        *
          Appellant,                    *
______________________                  *
                                        *
Terry Harrington, individually and in   *
his capacity as the father of Nicole    *
Antoinette Harrington,                  *
                                        *
            Appellee.                   *

                                  ___________

                            Submitted: November 15, 2007
                               Filed: February 1, 2008
                                ___________

Before RILEY, TASHIMA,1 and SMITH Circuit Judges.
                             ___________




      1
      The Honorable A. Wallace Tashima, United States Circuit Judge for the
Ninth Circuit, sitting by designation.

                                        -2-
RILEY, Circuit Judge.

       In 1978, Curtis W. McGhee Jr. (McGhee) and Terry Harrington (Harrington)
were convicted of murdering John Schweer, a retired police department captain who
was working as a security guard. McGhee and Harrington were each sentenced to life
imprisonment. In 2002, the Iowa Supreme Court reversed Harrington’s conviction
and remanded for a new trial, finding the prosecutor committed a Brady2 violation by
failing to disclose evidence of an alternative suspect. The current prosecutor,
Matthew Wilber (Wilber), concluded it would be impossible to retry Harrington and
also agreed to move to vacate McGhee’s conviction. McGhee agreed to enter an
Alford3 plea to second degree murder in exchange for a sentence of time served. With
the agreements, McGhee was released.

       McGhee and Harrington both brought civil rights actions against Pottawattamie
County, Iowa (County), and the former prosecutors and officers involved in the initial
investigation and prosecution, arguing they used perjured and fabricated testimony
and withheld evidence in violation of McGhee’s and Harrington’s constitutional
rights. McGhee and Harrington also alleged Wilber defamed them. Defendants
moved for summary judgment based on qualified and absolute immunity. The district
court found some defendants were entitled to qualified immunity on certain claims
and denied qualified immunity and absolute immunity on the remaining claims.

      Defendants Joseph Hrvol (Hrvol) and David Richter (Richter) filed a
consolidated interlocutory appeal from the denial of qualified, absolute, and sovereign
immunity arguing the district court: (1) used an improper standard for determining
probable cause in the absolute immunity analysis, (2) erred in waiving sovereign
immunity for the prosecutors, and (3) erred in concluding McGhee and Harrington


      2
       Brady v. Maryland, 373 U.S. 83 (1963).
      3
       North Carolina v. Alford, 400 U.S. 25, 37 (1970).

                                         -3-
alleged a constitutional violation when the district court denied qualified immunity to
Hrvol and Richter. Wilber also appeals the denial of his motion for summary
judgment regarding McGhee’s defamation claim, contending Wilber has sovereign
and qualified immunity. We affirm in part and reverse in part.

I.     BACKGROUND
       In July of 1977, John Schweer (Schweer), a retired police captain working as
a night security guard at the McIntyre Oldsmobile dealership (McIntyre dealership)
in Council Bluffs, Iowa, was shot and killed with a 12-gauge shotgun. Two Council
Bluffs detectives, Daniel C. Larsen (Detective Larsen) and Lyle W. Brown (Detective
Brown) (collectively, detectives) led the murder investigation with the active
participation of Assistant County Attorney Hrvol participating in witness interviews
and canvassing the neighborhood near the crime scene. Hrvol admits he was
“intensely involved in the investigation,” even though he was not yet assigned any
role in the prosecution of the case.

       Richter, the County Attorney, oversaw his office’s participation in the murder
investigation and received regular reports from Hrvol. Richter had been appointed as
County Attorney in 1976 and would stand for election, for the first time, in 1978.
Richter was campaigning in the face of Schweer’s unsolved murder.

       In the investigation’s early stages, more than a dozen individuals were under
suspicion, but McGhee and Harrington were not yet suspects. The best lead was
Charles Gates, known to investigators as “the man with the dog and shotgun.” Gates
had been a suspect in a 1963 homicide investigation involving the murder of a female
coworker of Gates. The detectives knew Schweer left a note at the McIntyre
dealership the night before his murder noting Schweer had chased off someone who
had a gun. A witness saw a man with a dog and a shotgun around the time of the
murder, a man Detective Larsen determined was Gates. Richter personally
interviewed another witness who positively identified Gates as the person seen

                                         -4-
walking dogs in the vicinity of the murder. Two more witnesses also placed Gates
near the scene of the murder in the relevant time frame. Richter and Hrvol went so
far as to consult an astrologer regarding their suspicions of Gates. Gates submitted
to a polygraph exam in which the examiner opined Gates was not truthful when he
denied owning a shotgun and, more importantly, denied shooting Schweer. Eight
reports dealing with Gates and the murder investigation were written by the Council
Bluffs police, yet, Richter and Hrvol never disclosed any of this evidence to
Harrington’s or McGhee’s trial or post-conviction relief counsel. Hrvol, in answering
McGhee’s post-conviction hearing discovery, went so far as to disavow any other
suspects but McGhee, inaccurately answering that the “man and dog” (Gates) was
“never found or identified.”

       The primary witness relied upon in bringing charges against McGhee and
Harrington was Kevin Hughes (Hughes), a 16-year old with a long criminal record.
Hughes was interrogated by both Fremont, Nebraska, and Council Bluffs, Iowa, police
before the arrests of Harrington and McGhee. On September 9, 1977, Hughes, along
with two other teenagers, was stopped in a Cadillac which had been stolen nine days
earlier from a Fremont, Nebraska, car dealership. Hughes denied stealing the
Cadillac, and identified Harrington, McGhee and Anthony Houston (Houston) as the
men who stole the Cadillac and three other cars from dealerships in Fremont and
Lincoln, Nebraska, and Council Bluffs, Iowa.

       Detectives Larsen and Brown traveled to Lincoln to interview Hughes, telling
Hughes they knew he was involved in the car theft ring and the Schweer murder, but
promised: (1) he would not be charged with the murder, (2) he would be helped with
his other criminal charges, and (3) there was a $5,000 reward available, if Hughes
helped the detectives with the Schweer murder. Hughes agreed to help.

      Hughes’s first written statement identified a light skinned man, later identified
as Steven Frazier, as the man who told Hughes that he stole a Lincoln Continental

                                         -5-
from the McIntyre dealership, killing a security guard in the process. The detectives
told Hughes they knew he was lying because no Lincoln was stolen from the McIntrye
dealership.

     Next, Hughes identified Arnold Kelly as involved in the murder. This was also
demonstrably false as Kelly was in the Kansas City Job Corps at the time of the
murder.

        Harrington and McGhee assert that Hrvol, Richter, Detective Larsen and
Detective Brown (1977 Defendants) began to pressure Hughes to implicate
Harrington, McGhee and Houston in the Schweer murder, even though Hughes
initially expressed his belief the three were incapable of murder. Hughes’s story then
changed again as he reported Harrington and the others told him they had murdered
Schweer. Authorities accused Hughes of lying about this conversation. Once
confronted, Hughes admitted to lying once more.

      On September 30, 1977, Hughes told police he was at the McIntyre dealership
when Schweer was murdered. The 1977 Defendants met with Hughes at the murder
scene. After this visit, Hughes reported he was with Houston at the McIntyre
dealership when the Schweer murder occurred. The 1977 Defendants knew Hughes
was lying again because they already knew Houston was in jail at the time of the
murder.

      Hughes’s story continued to change. When describing the murder weapon,
Hughes first said Schweer was murdered with a pistol. This was wrong. Hughes next
claimed a 20-gauge pump shotgun was the murder weapon, which was also inaccurate.
Finally, only after being told by the 1977 Defendants a 12-gauge shotgun shell was
found near the body did Hughes say a 12-gauge shotgun was the murder weapon.




                                         -6-
       In light of the changing stories, inaccuracies and inconsistencies, Detective
Larsen considered Hughes’s credibility suspect and later Detective Larsen admitted
he always had problems with Hughes’s final story. Nevertheless, a preliminary True
Information charging Harrington with Schweer’s murder was issued on November 16,
1977, and a similar preliminary True Information charging McGhee was issued on
November 17, 1977, based on Hughes’s accusations. Richter and Hrvol approved the
decision to arrest McGhee and Harrington, who were arrested on November 17, 1977.
A True Information charging McGhee and Harrington with first degree murder was
filed on February 17, 1978.

      At trial, the state’s cases were based upon the testimony of: (1) Hughes, (2) the
two other teens arrested with Hughes in the stolen Cadillac, (3) two other friends of
Hughes, and (4) jailhouse informants who testified Harrington confessed while housed
with or adjacent to them. McGhee and Harrington were found guilty in separate trials
and sentenced to life.

       Both McGhee and Harrington pursued post conviction relief, but were
unsuccessful. Only after Anne Danaher4 (Danaher) began an independent
investigation did the extent of the Brady violations committed by Hrvol and Richter
come to light. These Brady violations ultimately were the grounds upon which
Harrington’s conviction was overturned by the Iowa Supreme Court.

      While Wilber dismissed all charges against Harrington and agreed to vacate
McGhee’s sentence, Wilber announced in a press conference and a press release his
personal belief that he had no doubt Harrington had committed the murder, the jury
made the right decision, and the “right man went to prison for over twenty-five years.”
Wilber stated he “owed it to the family of John Schweer to do my best on this case to


      4
     Danaher was an employee at the prison where Harrington was incarcerated.
Danaher got to know Harrington and his family.

                                         -7-
bring his killer to justice a second time.” Wilber concluded by saying “[a]s for the
final justice for Terry Harrington, I will defer that honor to a higher power.”

      As for McGhee, Wilber said, “McGhee pleaded no contest today to a charge of
second degree murder for the death of John Schweer . . . . Even though Mr. McGhee
did not pull the trigger . . . our case against him was stronger than [the case] against
Terry Harrington [as] . . . McGhee had made admissions to at least three different
people about being with Terry Harrington when Harrington shot a police officer in
Council Bluffs.” Wilber noted these statements were not admissible against
Harrington, but “would certainly come into evidence at a trial against Mr. McGhee.”

        Hughes, the other juvenile witnesses, and the jailhouse informants who testified
against Harrington and McGhee have recanted their testimonies. Hughes admits he
lied, first in hopes of garnering a proffered reward, and then in an attempt to avoid
being personally charged with the murder and car thefts.

       McGhee and Harrington both brought civil rights actions against the County
and the former prosecutors and officers involved in the initial investigation and
prosecution, arguing they used perjured and fabricated testimony and withheld
evidence in violation of McGhee’s and Harrington’s constitutional rights. McGhee
and Harrington also allege Wilber defamed them. Defendants moved for summary
judgment based on qualified and absolute immunity. The district court found some
defendants were entitled to qualified immunity on some claims, and denied qualified
immunity and absolute immunity on the remaining claims. Hrvol and Richter filed
this interlocutory appeal, which Wilber joined.5



      5
       Harrington also filed a defamation claim against Wilber. The district court
denied Wilber’s motion for summary judgment on Harrington’s defamation claim.
See Harrington v. Wilber, 353 F. Supp. 2d 1033, 1048 (S.D. Iowa 2005). Because
Wilber did not appeal this decision, we will not consider this claim.

                                          -8-
II.    DISCUSSION
       In this interlocutory appeal, Hrvol and Richter assert the district court: (1) used
an improper standard for determining probable cause in the absolute immunity
analysis, (2) erred in waiving sovereign immunity for the prosecutors, Hrvol and
Richter, and (3) erred in concluding McGhee and Harrington alleged a constitutional
violation when the district court denied qualified immunity to Hrvol and Richter.
Wilber appeals the denial of his motion for summary judgment in regards to
McGhee’s defamation claim on the basis Wilber has sovereign and qualified
immunity.

       A.     Jurisdiction
       We ordinarily lack jurisdiction over an interlocutory appeal challenging the
denial of a summary judgment motion, but when a summary judgment motion based
on sovereign immunity or qualified immunity is denied, an interlocutory appeal “is
appropriate because immunity from suit is effectively lost if the party claiming it is
erroneously forced to stand trial.” Monroe v. Ark. State Univ., 495 F.3d 591, 593-94
(8th Cir. 2007) (internal alterations, quotation marks and citations omitted). Hrvol,
Richter and Wilber all assert the district court erred in finding they were not shielded
by sovereign or qualified immunity. Thus, we have jurisdiction to determine if the
appellants’ motions for summary judgment based upon sovereign and qualified
immunity were improperly denied.

       B.    Standards of Review
       “We review de novo the district court’s denial of summary judgment on
qualified immunity grounds, construing the evidence in the light most favorable to the
nonmoving party.” Dible v. Scholl, 506 F.3d 1106, 1109 (8th Cir. 2007) (citation and
emphasis omitted). We review de novo as well “the question of whether a state (or
its agencies and officials) has waived sovereign immunity.” Doe v. Nebraska, 345
F.3d 593, 597 (8th Cir. 2003) (citation omitted).



                                           -9-
        C.    Absolute Immunity and Probable Cause
        Before the establishment of probable cause to arrest, a prosecutor generally will
not be entitled to absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259, 274
(1993) (“A prosecutor neither is, nor should consider himself to be, an advocate
before he has probable cause to have anyone arrested.”) (footnote reference omitted).
Defendants assert the district court erred in determining probable cause was not
present at the time Harrington and McGhee were arrested for Schweer’s murder and
thereby determining Hrvol and Richter were not entitled to absolute immunity.
Specifically, defendants assert probable cause justified arresting Harrington and
McGhee for car theft and, because probable cause exists to support arrests for car
theft, then Hrvol and Richter are entitled to absolute immunity. Defendants raised this
argument in the district court for the first time in their summary judgment reply brief.
The district court did not consider this argument. See S.D. Iowa L.R. 7(g) (A reply
brief may be filed “to assert newly-decided authority or to respond to new and
unanticipated arguments made in the resistance [brief].”); see also Jones v. Shalala,
887 F. Supp. 210, 214 n.3 (S.D. Iowa 1995) (“[T]he reply brief submitted by
[defendants] is not in compliance with the local rule in that it raises new issues not
addressed in [their] initial brief.”). The district court did not abuse its discretion or
otherwise commit error by following the court’s local rule prohibiting new arguments
submitted in a reply brief. Because the defendant’s probable cause argument was not
properly raised in the district court, we decline to consider it on appeal. See Aaron v.
Target Corp., 357 F.3d 768, 779 (8th Cir. 2004) (“Arguments and issues raised for the
first time on appeal are generally not considered, and no good reason has been
advanced to depart from that rule.”) .

      D.    Sovereign Immunity
      Defendants next assert the district court erred when it waived sovereign
immunity for Hrvol, Richter and Wilber, arguing they are shielded by the Iowa Tort
Claims Act (ITCA), Iowa Code § 669 et seq., and/or the Iowa Municipal Tort Claims
Act (IMTCA), Iowa Code § 670 et seq. Under the doctrine of sovereign immunity a

                                          -10-
tort claim against a state employee, acting within the scope of his office or
employment with the state, must be brought pursuant to the ITCA. See Iowa Code §
669.2(3)-(4).

       The State of Iowa (Iowa) possesses sovereign immunity. See Doe, 345 F.3d at
597 (stating the Eleventh Amendment provides states with immunity from suits). As
such, Iowa and its employees can only be sued to the extent Iowa expressly waives its
immunity. Id. The ITCA is a statutorily defined waiver of sovereign immunity
allowing certain claims to be filed against Iowa which fit within the ITCA’s specified
reach, and which do not fall within explicit exceptions where Iowa expressly retained
its sovereign immunity.

              1.     Hrvol and Richter
       The district court concluded Hrvol and Richter were covered by the ITCA and
found liability may be imposed to the extent claims arise from acts outside the scope
of defendants’ activities as state employees. The district court held Hrvol and Richter
were acting outside the scope of their actions as state employees when they: (1)
arrested Harrington and McGhee without probable cause, (2) coerced and coached
witnesses, and (3) fabricated evidence before the filing of the True Information. Hrvol
and Richter assert all of their allegedly wrongful acts were within the scope of the
ITCA, based on the Supreme Court’s assertion that prosecutors serve several roles,
including that of investigator. See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).

       Hrvol and Richter overstate the holding in Imbler where the Supreme Court
stated, “[w]e have no occasion to consider whether like or similar reasons require
immunity for those aspects of the prosecutor’s responsibility that cast him in the role
of an administrator or investigative officer . . . .” Id. The Supreme Court specifically
limited its determination that a prosecutor has immunity from a civil suit under § 1983
clarifying, “[w]e hold only that in initiating a prosecution and in presenting the State’s
case, the prosecutor is immune from a civil suit for damages under § 1983.” Id. at 431

                                          -11-
(emphasis added). As such, Imbler does not support the proposition sovereign
immunity must extend to investigatory activities. The Supreme Court recently
reaffirmed this proposition, noting a “[§ 1983] action could still be brought against a
prosecutor for conduct taken in an investigatory capacity.” Hartman v. Moore, 547
U.S. 250, 262 n.8 (2006).

        The ITCA specifically limits claims to those arising when an employee is
“acting within the scope of the employee’s office or employment.” Iowa Code
§ 669.2(3)(a), (b). As such, the ITCA does not apply to claims when a state employee
is acting outside his official duties. Thus, the ITCA expressly and voluntarily waives
sovereign immunity where an employee acts outside of the scope of his office or
employment.

       The district court found the acts of Hrvol and Richter occurring after the filing
of formal charges were entitled to sovereign immunity, but determined investigatory,
rather than prosecutorial, acts occurring before the filing of formal charges were
outside the scope of Hrvol and Richter’s office or employment. We agree. Before
filing formal charges, Hrvol and Richter acted, at least in a substantial and material
part, as crime investigators and advisors in the Schweer murder investigation and not
as prosecutors. The district court did not err in finding the protections of the ITCA
do not extend to Richter and Hrvol’s investigatory actions taken before the filing of
formal charges.

              2.    Wilber
       Wilber appeals the denial of his summary judgment motion on McGhee’s
defamation claim based on Wilber’s sovereign immunity and qualified immunity
defenses under the ITCA, an argument Wilber did not make to the district court where
he relied instead upon the protections afforded by the IMTCA. The district court held
the IMTCA’s protection only applied if Wilber’s comments were “a judgment call
driven by social, economic or political concerns” and found they were not.

                                         -12-
       The ITCA defines a state employee, for purposes of the act, as including any
“persons acting on behalf of the state . . . in any official capacity, temporarily or
permanently in the service of the state of Iowa.” Iowa Code § 669.2(4). Thus, for
purposes of the ITCA, Wilber is a state employee when acting in his official capacity
as County Attorney. We find no language within the ITCA which would restrict
Wilber’s immunity under the ITCA solely to prosecutorial acts. Instead, the only
restriction is for acts taken in an official capacity. See id. Clearly, when Wilber held
his press conference and issued his written press release he was acting in his official
capacity as County Attorney discussing prosecutions by the state.

      McGhee’s defamation claim is governed by the ITCA which explicitly bars a
claim for defamation arising out of libel or slander. See Iowa Code § 669.14(4).
Therefore, the district court erred as a matter of law in denying Wilber’s motion for
summary judgment as to McGhee’s defamation claim. This claim must be dismissed.

       E.     Constitutional Violation
       Hrvol and Richter assert the district court erred in determining their acts of
obtaining, manufacturing, coercing and fabricating evidence before the filing of the
True Information constituted a constitutional violation justifying the denial of
qualified immunity. Hrvol and Richter assert it is only the use of this evidence, not
its procurement, that constitutes a violation of McGhee’s and Harrington’s substantive
due process rights. Further, as the district court held, Hrvol and Richter have absolute
immunity for their use of this evidence at trial. Thus, Hrvol and Richter alternatively
admit they violated McGhee’s and Harrington’s right to substantive due process, but
assert the violation was not in procuring, but only in using the evidence at trial, an act
for which they have absolute immunity.

       The district court held the procurement or fabrication of the evidence
constituted a due process violation, noting this court has held a person’s due process

                                          -13-
rights are violated when police officers use falsified evidence to procure a conviction,
see Wilson v. Lawrence, 260 F.3d 946, 954-55 (8th Cir. 2001), stating “it would be
a perverse doctrine of tort and constitutional law that would hold liable the fabricator
of evidence who hands it to an unsuspecting prosecutor but exonerate the wrongdoer
who enlists himself in a scheme to deprive a person of liberty.” McGhee v.
Pottawattamie County, 475 F. Supp. 2d 862, 907 (S.D. Iowa 2007).

       The district court’s decision is in accord with the Second Circuit Court of
Appeals which held “the right at issue is a constitutional right, provided that the
deprivation of liberty . . . can be shown to be the result of [the prosecutor’s]
fabrication of evidence” where the prosecutor was accused of both fabricating
evidence and then using the fabricated evidence at trial. Zahrey v. Coffey, 221 F.3d
342, 344, 349 (2d Cir. 2000). The district court acknowledged that the Second Circuit
noted its decision was “in tension, if not conflict, with the majority opinion by Judge
Easterbrook for the Seventh Circuit in Buckley IV,6 on remand from the Supreme
Court,” but the Second Circuit concluded it was unclear if Buckley I7 was decided on
this basis or on the distinguishable basis of causation. Zahrey, 221 F.3d at 354-55.
Even if there is some tension, there is agreement “[i]mmunity is absolute only when
the prosecutor performs distinctively prosecutorial functions.” Buckley I, 919 F.2d
at 1240.

       We find immunity does not extend to the actions of a County Attorney who
violates a person’s substantive due process rights by obtaining, manufacturing,
coercing and fabricating evidence before filing formal charges, because this is not “a
distinctly prosecutorial function.” The district court was correct in denying qualified
immunity to Hrvol and Richter for their acts before the filing of formal charges.



      6
       Buckley IV refers to Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994).
      7
       Buckley I refers to Buckley v. Fitzsimmons, 919 F.2d 1230 (7th Cir. 1990).

                                         -14-
III.  CONCLUSION
      We reverse the decision of the district court as to McGhee’s defamation charge
against Wilber because Wilber is entitled to sovereign immunity under the ITCA. We
affirm the district court in all other respects.
                         ______________________________




                                       -15-
