                  United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 97-3708
                                ___________

JoAnn Brandon, Personal Representative *
of the estate of Teena Brandon,        *
Deceased,                              *
                                       *
       Plaintiff-Appellant,            *
                                       *
       v.                              *
                                       *
John Lotter; Marvin Nissen;            * Appeal from the United States
                                       * District Court for the
              Defendants.              * District of Nebraska
                                       *
Charles B. Laux, Richardson County     *
Sheriff,                               *
                                       *
       Defendant-Appellee.             *
                                 ___________

                        Submitted: May 11, 1998

                             Filed: August 28, 1998
                                 ___________

Before McMILLIAN, ROSS and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________


McMILLIAN, Circuit Judge.
        JoAnn Brandon, as the personal representative of the estate of her daughter,
Teena Brandon, appeals from a final order1 entered in the United States District Court
for the District of Nebraska2 granting summary judgment in favor of appellee, Charles
B. Laux, on her 42 U.S.C. § 1986 claim.3 Brandon v. Lotter, 976 F. Supp. 872 (D.
Neb. 1997) (Brandon). For reversal, appellant argues that the district court erred in
granting summary judgment in favor of appellee on the basis of qualified immunity. For
the reasons discussed below, we affirm the judgment of the district court.

                                     Jurisdiction

      The district court had proper jurisdiction pursuant to 28 U.S.C. § 1343.
Appellant timely filed a notice of appeal under Rule 4(a) of the Federal Rules of
Appellate Procedure. Jurisdiction is proper on appeal under 28 U.S.C. § 1291.




      1
       The district court’s order was entered in favor of Laux pursuant to Fed. R. Civ.
P. 54(b). Brandon v. Lotter, 976 F. Supp. 872, 878 (D. Neb. 1997).
      2
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
      3
       Title 42 U.S.C. § 1986 permits survival of an action against a person who had
the power to prevent or aid in preventing a wrong actionable under the civil rights acts
and who neglected or refused to do so. Id. The action survives, however, only if the
victim died as a result of the wrong. Id.

                                          -2-
                                         Facts4

       Teena Brandon was a twenty-one-year-old woman who dressed “like a male.”
On December 24, 1993, John Lotter and Marvin Nissen (also known as Tom Nissen)
raped and brutally assaulted Brandon. The incident began at a gathering in Richardson
County, Nebraska, at which heavy alcohol consumption took place. During the evening
Lotter told Brandon that he wanted to have sex with her. After Brandon refused
Lotter’s advances, he grabbed Brandon’s hands while Nissen pulled her pants and
underwear to the floor. Later, the two men cornered Brandon in the bathroom and
Lotter held the door closed while Nissen hit Brandon in the head, kicked her in the ribs,
and stepped on her. The men then dragged Brandon out to their car and drove to a
remote location where they each raped her. After the rape, Nissen again brutally beat
Brandon and threatened her not to tell anyone about the incident. The men then took
Brandon to Nissen’s house where she escaped by climbing out of a bathroom window.

       The following day, Brandon went to the authorities and was interviewed by
Deputy Olberding and appellee Laux, the then-duly elected sheriff of Richardson
County. Brandon gave a three-page written statement detailing the rape and assault.
Brandon also stated that she was willing to sign a complaint and testify against Lotter
and Nissen. Laux asked Brandon crude questions about the incident, telling Brandon
that they were necessary in order to present the case to the County Attorney. Laux also
questioned Brandon why she dressed “like a male” and why she socialized with
females instead of males. Brandon canceled two follow-up appointments with Laux
because she feared his abusive treatment.




      4
       We briefly summarize the material facts, which are largely undisputed, in the
light most favorable to appellant based on the district court’s order granting summary
judgment, see Brandon, 976 F. Supp. at 873–76, and the record on appeal.

                                          -3-
        Upon realizing that they could go to prison for assaulting and raping Brandon,
Lotter and Nissen immediately began to discuss killing Brandon, to prevent her from
testifying against them. Lotter and Nissen were the only two persons who participated
in those discussions. On December 28, 1993, a Falls City police officer interviewed
Lotter and Nissen regarding Brandon’s allegations, thereby putting Lotter and Nissen
on notice that they were suspected of a crime. On December 30, 1993, the sheriff’s
office completed the paperwork necessary to obtain arrest warrants for Lotter and
Nissen, but warrants were not issued. Later that evening, Lotter and Nissen formed
their specific plan about how to kill Brandon. The following day, on December 31,
1993, Lotter and Nissen broke into the home of Lisa Lambert where Brandon was
staying and, upon finding Brandon, Lotter shot her and Nissen stabbed her, fatally.
Lotter and Nissen also killed Lambert and Phil Devine, who were present at Lambert’s
home.

       On or about September 8, 1995, appellant filed the instant action against Lotter,
Nissen, and Laux in the United States District Court for the District of Nebraska
asserting claims under 42 U.S.C. §§ 1983, 1985, 1986, and 1988. Amended Complaint
¶ VII. With respect to Laux, appellant alleged that Laux knew that Lotter and Nissen
had conspired to deprive Brandon of her civil rights by killing her for being a woman
in violation of 42 U.S.C. § 1985 and neglected or refused to prevent this conspiracy in
violation of 42 U.S.C. § 1986. Id. ¶¶ XXXIV–XLI. Laux moved for summary
judgment and for judgment as a matter of law. The district court granted Laux’s
motion for summary judgment, holding that Laux was entitled to qualified immunity.

                                      Discussion

        We review a grant of summary judgment de novo. The question before the
district court, and this court on appeal, is whether the record, when viewed in the light
most favorable to the non-moving party, shows that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Fed.

                                          -4-
R. Civ. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (Anderson); Get Away
Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St. Paul Fire & Marine Ins.
Co. v. FDIC, 968 F.2d 695, 699 (8th Cir. 1992). “In ruling on a motion for summary
judgment, the court must bear in mind the actual quantum and quality of proof
necessary to support liability under the applicable law.” Hartnagel v. Norman, 953
F.2d 394, 396 (8th Cir. 1992) (citing Anderson, 477 U.S. at 254).

        Title 42 U.S.C. § 1986 provides a cause of action against “[e]very person who,
having knowledge that any of the wrongs conspired to be done, and mentioned in
section 1985 of . . . [T]itle [42], are about to be committed, and having power to
prevent or aid in preventing the commission of the same, neglects or refuses so to do
so, if such wrongful act be committed.” Id. (emphasis added). Liability under § 1986
“‘is dependent on proof of actual knowledge by a defendant of the wrongful conduct.’”
Owen v. City of Independence, 445 U.S. 622, 674 n.15 (1980) (Owen) (quoting
Hampton v. City of Chicago, 484 F.2d 602, 610 (7th Cir. 1973)). Thus, in order to
maintain her § 1986 action, appellant would have to prove that: “(1) [Laux] had actual
knowledge of a § 1985 conspiracy, (2) [Laux] had the power to prevent or aid in
preventing the commission of a § 1985 conspiracy, (3) [Laux] neglected or refused to
prevent a § 1985 conspiracy, and (4) a wrongful act was committed.”5 Clark v.
Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994) (Clark) (citations omitted). “[F]irsthand
knowledge is not required under § 1986. The courts have nevertheless required ‘actual
knowledge.’” Id. at 1296 (citations omitted).



      5
         Appellant alleges that Lotter and Nissen conspired in violation of 42 U.S.C.
§ 1985(2) & (3) for the purpose of hindering justice with the intent to deny Brandon
equal protection of the laws. Specifically, appellant maintains that the sexual assault
and killing of Brandon were done in furtherance of a conspiracy to deny Brandon her
First, Fifth, and Fourteenth Amendment rights because she was a woman who dressed
like a man and associated with other women.

                                          -5-
       As noted above, the district court dismissed appellant’s § 1986 claim against
Laux on the ground that he is entitled to qualified immunity. Brandon, 876 F. Supp. at
878. Assuming, without deciding, that Brandon’s allegations pertained to a right that
was clearly established, the district court held that “the failure to immediately arrest
[Lotter and Nissen] or warn Brandon that the arrest would be delayed did not violate
clearly established law.” Id. at 877–78 (citing Ricketts v. City of Columbia, 36 F.3d
775, 780 (8th Cir. 1994) (Ricketts) (holding under § 1983 that rape and murder were not
reasonably foreseeable where prior reported incidents of harassment were too remote
in time, arrest for prior harassment could have spawned retaliatory violence, and there
was no realistic chance for police protection because police were called after violence
occurred)). The district court reasoned that

       a reasonable person (including a reasonable law enforcement officer) in
       Laux’s position would not have had “actual knowledge” that the “wrongs
       conspired to be done, and mentioned in section 1985 . . . [were] about to
       be committed.”
                                          ****
              To be precise, a reasonable law enforcement officer could have
       believed that Lotter and Nissen were not about to harm Brandon, and thus
       a reasonable officer could have believed that inaction was warranted.


Id. (citation omitted in original). The district court relied, inter alia, on the facts that
Brandon’s failure to keep two appointments with Laux could reasonably be perceived
as an indication that she did not fear imminent peril and that Lotter and Nissen kept their
plans secret. Id. at 878.

       Appellant contends that qualified immunity does not apply to claims brought
under 42 U.S.C. § 1986. In the alternative, appellant argues that the district court
incorrectly applied the test for qualified immunity. We do not reach either of these
arguments in this appeal. Rather, we affirm the district court’s order on the alternative
ground that appellant has failed to demonstrate a genuine issue of material fact as to

                                            -6-
Laux’s knowledge of a § 1985 conspiracy between Lotter and Nissen against Brandon.
E.g., United States v. Sager, 743 F.2d 1261, 1263 n. 4 (8th Cir. 1984) (court of appeals
can affirm judgment of district court on any ground supported by the record), cert.
denied, 469 U.S. 1217 (1985).

       Viewing the record (in particular the transcript of Brandon’s tape-recorded
interview with Laux and Deputy Olberding and her three-page written statement
detailing the rape and assault) in the light most favorable to appellant, we find no
evidence that Laux knew (or even should have known) of a § 1985 conspiracy between
Lotter and Nissen against Brandon. At best, the facts show that Laux knew that Lotter
had a criminal history, Joint Appendix, Transcript of Interview at 19, that Lotter and
Nissen had brutally beaten and sexually assaulted Brandon, see generally id., that Lotter
was capable of aggravated sexual assault,6 id. at 15, that Brandon escaped from


        6
        Specifically, appellant relies on the following exchange between Brandon and
Laux:

        LAUX: Well it doesn’t make any difference if everybody was there now,
        you were all half-ass drunk. And knowing these guys, it wouldn’t make
        no difference to John what he did in front [of] everybody else. He would
        think it was funny. Huh. I can’t believe that he pulled your pants down
        and you are a female that he didn’t stick his hand in you or his finger in
        you.

        BRANDON: Well he didn’t.

        LAUX: Can’t believe he didn’t.

Joint Appendix, Transcript of Interview at 15. In light of Laux’s stated disbelief that
Lotter did not further assault Brandon when her pants were down, appellant argues that
it is unreasonable to hold that Laux did not believe that the men would further assault
Brandon after they raped her and upon learning that she had reported the incident to
authorities.

                                           -7-
Lotter and Nissen by climbing through a bathroom window, id. at 10, and that Lotter
had threatened Brandon not to tell anyone about the assaults. Id. at 8. Appellant asserts
that there is a genuine issue of material fact as to whether, knowing of these facts, Laux
also knew that Brandon was in imminent peril. We disagree.

        There was no evidence that Laux knew of Lotter’s and Nissen’s conspiracy to
harm Brandon and it does not follow that Laux’s knowledge of the above facts
constitutes actual knowledge under § 1986 of their § 1985 conspiracy against Brandon.
See, e.g., Owen, 445 U.S. at 674 n.15; see also Clark, 20 F. 3d at 1296-97 (vacating
court order granting summary judgment on interracial youth group’s § 1986 action
against municipal defendants and remanding on ground that genuine issue existed as to
“knowledge” element in light of Mayor’s and police chief’s awareness of rumors that
dissident group conspired to engage in civil unrest). Whether it was poor judgment to
fail to arrest Lotter and Nissen immediately, to fail to inform Brandon that they had not
been arrested, or to fail otherwise to protect Brandon from Lotter and Nissen are
questions that might underlie a legal cause of action.7 They are not, however, proper
bases for a claim under § 1986.8 Furthermore, we recognize the caution that federal
courts must exercise in reviewing the highly discretionary decisions that law
enforcement officers are called upon to make, particularly in the area of arrests. See
Ricketts, 36 F.3d at 780 (“Holding that an officer’s failure to arrest for one incident of
harassment causes a subsequent incident of harassment or violence would essentially



      7
        See, e.g., Brandon v. County of Richardson, 566 N.W.2d 776 (Neb. 1997)
(reversing and remanding with directions state district court’s dismissal of action
against Richardson County and Laux under Nebraska law for wrongful death,
intentional infliction of emotional distress, and other claims on grounds that (1) a
special relationship was created that gave rise to officers’ duty to protect Brandon after
she reported the rape to the police and offered to aid in the prosecution, and (2) claim
for intentional infliction of emotional distress survived Brandon’s death).
      8
       Similarly, Laux’s callousness toward Brandon during her interview cannot be
remedied under § 1986 without evidence that Laux was aware of a § 1985 conspiracy.


                                           -8-
take away the officer’s discretion to determine when to arrest–a fundamental part of our
criminal system. . . . This in turn ‘would open municipalities to unprecedented liability
under § 1983.’”) (citations omitted)); cf. Bisbee v. Bey, 39 F.3d 1096, 1101 (10th Cir.
1994) (“When a statute reaches action taken by governmental officials, courts must
always be concerned about the law’s potentially chilling effect on official conduct.”).

      Accordingly, we affirm the order of the district court.



      A true copy.


             Attest:


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




                                          -9-
