                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-3753
                                  ___________

Brian Akins; Connie Akins,               *
                                         *
             Plaintiffs/Appellees,       *
                                         *
       v.                                *
                                         *
Mick Epperly, in his individual and      *
official capacity; Adam Crouch, in his *
individual and official capacity;        *
Jeffrey Younger, in his individual and * Appeal from the United States
official capacity; Doug Henry, in his    * District Court for the
individual and official capacity,        * Western District of Missouri.
                                         *
             Defendants,                 *
                                         *
Robert Vaughan, in his individual and *
official capacity; Jason Trammell, in    *
his individual and official capacity,    *
                                         *
             Defendants/Appellants,      *
                                         *
Larry Stockton, Jr.; Barry County,       *
Missouri,                                *
                                         *
             Defendants.                 *
                                    ___________

                             Submitted: September 24, 2009
                                Filed: December 18, 2009
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
                             ___________
WOLLMAN, Circuit Judge.

       Missouri State Highway Patrol Officers Jason Trammell and Robert Vaughan
appeal the district court’s denial of their motions for summary judgment based on
qualified immunity. Trammell and Vaughan investigated the series of events during
which Brian Akins was shot twice by a Barry County sheriff’s deputy. Akins brought
claims under 42 U.S.C. § 1983 and state tort law against some nineteen defendants,1
including Trammell and Vaughan. Akins alleged that Trammell and Vaughan violated
his substantive due process and Fourth Amendment rights. Because Akins has failed
to present sufficient evidence that Trammell’s and Vaughan’s alleged failure to
investigate was intentional, reckless, or deliberately indifferent so as to shock the
conscience, we reverse and remand with directions.


                                   I. Background


       Akins was on probation for domestic assault at the time of the incident giving
rise to this litigation. Based upon his refusal to submit to a drug test, a warrant was
issued for his arrest.


                                  A. The Incident


       On December 30, 2004, Akins, his mother, and his brother drove to the Barry
County courthouse in Cassville, Missouri, so that Akins and his brother could meet
with their respective probation officers. Because Akins’s probation officer was out
of the office, Akins signed in and then returned to the van to wait with his mother. An


      1
      The district court denied all motions for summary judgment and stayed the case
pending this appeal.

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attorney who had previously represented Akins approached the van and warned Akins
that there might be a warrant out for his arrest on a probation violation.


      As Akins sat waiting with his mother, Barry County Sheriff’s Deputies Adam
Crouch and Doug Henry looked at Akins as they entered the courthouse. Akins
believed that the officers’ scrutiny was prompted by the outstanding arrest warrant,
and he decided to leave the parking lot even though his brother was still inside the
courthouse. As Akins was backing out of the parking space, Deputies Crouch, Henry,
and Jeffrey Younger exited the courthouse and approached the van.


       According to Crouch, he approached the driver’s side door of the van, waved
his arms and yelled at Akins to stop because of the outstanding warrant. All three
deputies had converged on the vehicle, and Crouch maintained that Younger was in
front of the van. Crouch stated that the van was moving forward and was about to
strike Younger. Accordingly, Crouch opened the driver’s side door and shot Akins
in the left thigh. Younger recalled the sequence of events in a similar manner to
Crouch’s account. Younger stated that he fired at the van as it moved towards him.
Younger fired seven shots, none of which struck Akins or his mother. According to
Younger, he was struck and then run over by the van.


       Akins recounted the event differently. He acknowledged that Crouch yelled at
him, but claimed to have not understood what Crouch said. Akins stated that Younger
was not in front of the van. According to Akins, Crouch opened the door and fired at
him before the van moved forward and Younger was not threatened by the movement
of the van.


       It is undisputed that Akins accelerated through the parking lot, driving the van
over the curb and into the street, where it collided with another vehicle. According

                                         -3-
to Akins, the van came to a stop, whereupon Crouch fired another shot, which struck
Akins in the back of his left shoulder. The deputies maintain that Akins continued to
attempt to accelerate until after Crouch fired the second shot. The deputies opened the
driver’s side door and placed Akins under arrest. Younger and Akins were
transported to the hospital by ambulance. In the course of treating Younger, the
paramedics cut his pants from his body. Younger did not sustain any significant
injury from allegedly being run over by the van.


                                B. The Investigation


        Shortly after the incident, Trammell arrived at the scene to investigate the
collision between the van and the other vehicle. Vaughan arrived at the scene several
hours after the incident and was assigned to be the lead criminal investigator. Based
on a probable cause statement from Deputy Henry, Akins was charged that day with
first degree assault of a law enforcement officer. Trammell and Vaughan had no role
in the decision to file charges. Upon his release from the hospital, Akins was taken
to jail, where he remained for seven months awaiting trial.


       During his investigation, Trammell examined the roadway, measured the tire
marks he observed in the parking lot, and interviewed witnesses. Trammell ultimately
completed an accident report, including a diagram of the collision. He did not
participate in the criminal investigation of the shooting. As the lead criminal
investigator, Vaughan gathered and examined the evidence, including the van, and
interviewed witnesses, including Akins’s mother and Deputy Crouch. Vaughan
detailed his findings in his report. At a deposition prior to Akins’s criminal trial,
Vaughan testified that a bullet hole he discovered towards the rear of the van was an
exit hole from a bullet that had passed through the inside of the van.




                                         -4-
                                C. The Criminal Trial


       At his criminal trial, Akins highlighted various inconsistencies in the officers’
testimony and prosecution’s evidence. Younger testified that he fired all seven shots
prior to or while being run over by the van. Akins confronted Vaughan with physical
evidence that showed that the bullet hole towards the rear of the van was an entry hole
and that the bullet had been shot from behind the van. Vaughan corrected his
deposition testimony on the stand, and his trial testimony established that Younger
was behind the van when he fired the shot, not in front of it.


      Younger’s pants were admitted into evidence at the trial. They bore tire prints
on the inside of the fabric. Trammell testified that the tire marks he observed on the
pavement “appear to be acceleration marks,” characterizing the marks as “pretty light,
but observable.” The jury acquitted Akins.


                                   D. The Civil Suit


       Following his acquittal, Akins brought this action against Trammell and
Vaughan, alleging a violation of his right to substantive due process and of his Fourth
Amendment rights to be free from unreasonable arrest, detention, and prosecution
without probable cause. He argues that Trammell’s and Vaughan’s failure to conduct
a reasonably thorough investigation prolonged his detention.


        In his resistance to the motion for summary judgment, Akins presented
evidence suggesting that Vaughan knew at an earlier time of the error in his testimony
about the direction of the bullet but yet did not correct his testimony until he testified
at trial. The evidence that the bullet hit the van from behind directly contradicts
Younger’s testimony that he fired all seven shots prior to or while being run over.

                                           -5-
Akins also presented evidence about the tire marks on the inside of Younger’s pants.
The evidence-receiving officer testified that he did not photograph or report the
markings but would have reported anything usual that he observed. No evidence was
presented that Vaughan knew of the tire marks on the pants before Akins’s criminal
trial. Akins highlighted many inconsistencies in Crouch’s statements that Vaughan
did not investigate. Akins argued that the acceleration marks that Trammell testified
to in the criminal trial did not exist. Other witnesses testified that they did not observe
whether or not there were tire marks. When asked whether he had noticed any tire
marks, Henry responded that he had not observed any. When Crouch was asked if had
seen any markings on the parking lot, he testified “I did not pay attention.”


       The district court denied Trammell and Vaughan’s motion for summary
judgment based on their claim of qualified immunity. Akins contends that he
presented evidence sufficient to survive summary judgment because (1) Vaughan
knew that his deposition testimony about the direction of the bullet was incorrect, yet
failed to correct it before the criminal trial, (2) Vaughan failed to investigate the
physical evidence of tire marks on Younger’s pants, (3) Vaughan did not investigate
inconsistencies in Crouch’s statements, and (4) Trammell falsely testified that there
were tire marks in the courthouse parking lot.


                                     II. Discussion


       We review de novo a district court’s denial of a motion for summary judgment
based on qualified immunity. Henderson v. Munn, 439 F.3d 497, 501 (8th Cir. 2006).
We view the facts in the light most favorable to the non-moving party and “take as
true those facts asserted by [the] plaintiff that are properly supported in the record.”
Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001).




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      Qualified immunity protects governmental officials from liability for civil
damages if they have not violated “clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). This defense “provides ample protection to all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.
335, 341 (1986).


       Qualified immunity requires a two-part inquiry: (1) whether the facts shown
by the plaintiff make out a violation of a constitutional or statutory right, and (2)
whether that right was clearly established at the time of the defendant’s alleged
misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may exercise their
discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).


                          A. Substantive Due Process Claim


       Akins asserts that Trammell and Vaughan violated his right to substantive due
process by failing to conduct an adequate investigation. To establish a substantive due
process violation, Akins must demonstrate that a fundamental right was violated2 and
that the conduct shocks the conscience. Moran v. Clarke, 296 F.3d 638, 651 (8th Cir.
2002) (en banc) (Bye, J., concurring and writing for a majority on this issue).
Whether the alleged conduct shocks the conscience is a question of law. Terrell v.
Larson, 396 F.3d 975, 981 (8th Cir. 2005) (en banc).




      2
        We have recognized that the liberty interest involved in the case of a failure to
investigate is “the interest in obtaining fair criminal proceedings before being denied
one’s liberty in the most traditional sense.” Wilson v. Lawrence County, 260 F.3d
946, 956 n.8 (8th Cir. 2001).

                                          -7-
       “[I]n a due process challenge to executive action, the threshold question is
whether the 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, 847 n.8 (1998); see Moran, 296 F.3d at 647 (“[S]ubstantive
due process is concerned with violations of personal rights . . . so severe . . . so
disproportionate to the need presented, and . . . so inspired by malice or sadism rather
than a merely careless or unwise excess of zeal that it amounted to a brutal and
inhumane abuse of official power literally shocking to the conscience.”) (internal
quotations omitted) (quoting In re Scott County Master Docket, 672 F. Supp. 1152,
1166 (D. Minn. 1987)). Conduct intended to injure will generally rise to the
conscience-shocking level, but negligent conduct falls “beneath the threshold of
constitutional due process.” Lewis, 523 U.S. at 849. Deliberate indifference or
recklessness falls somewhere between negligent and intentional actions. Id. at 849,
851. This middle ground is “a matter for closer calls.” Id. at 849.


       The Supreme Court has adopted a context-specific approach in determining
whether deliberately indifferent or reckless conduct is egregious enough to state a
substantive due process claim. Id. at 850. In Wilson v. Lawrence County, we
recognized a substantive due process cause of action for reckless investigation in
circumstances in which the state actor had the opportunity to consider “various
alternatives prior to selecting a course of conduct.” 260 F.3d 946, 956-57 (8th Cir.
2001). To establish a violation of due process based on a failure to investigate, Akins
must show that Trammell and Vaughan “intentionally or recklessly failed to
investigate, thereby shocking the conscience.” Amrine v. Brooks, 522 F.3d 823, 834
(8th Cir. 2008).


       We have held that the following circumstances indicate reckless or intentional
failure to investigate that shocks the conscience: (1) evidence that the state actor
attempted to coerce or threaten the defendant, (2) evidence that investigators
purposefully ignored evidence suggesting the defendant’s innocence, (3) evidence of

                                          -8-
systematic pressure to implicate the defendant in the face of contrary evidence. See
Amrine v. Brooks, 522 F.3d 823, 833-35 (8th Cir. 2008) (summarizing our cases that
address the failure to investigate as a substantive due process violation). An officer’s
negligent failure to investigate inconsistencies or other leads is insufficient to establish
conscience-shocking misconduct. Id. at 835; Clemmons v. Armontrout, 477 F.3d 962,
966 (8th Cir. 2007) (rejecting the contention that failure to investigate another suspect
shocked the conscience because there was “no explanation for why these actions
constitute recklessness as opposed to mere negligence”).


       Akins highlights multiple errors and inconsistencies in Trammell’s and
Vaughan’s investigation, but he has failed to show conscience-shocking reckless or
intentional conduct. There is no evidence that Vaughan or Trammell ever coerced or
threatened Akins. Nothing in the record establishes that Vaughan or Trammell
purposefully ignored evidence suggesting Akins’s innocence. Vaughan did not know
about the tire marks inside the pants until the trial, so he could not have purposefully
ignored that evidence. In light of his self-correcting trial testimony concerning the
direction from which the rear-entering bullet had been fired, there is no evidence that
Vaughan intended to misconstrue the evidence against Akins. The evidence that
Trammell’s reporting on the tire marks on the pavement was flawed does not
contradict his testimony. Crouch’s and Henry’s statements establish only that they
had not observed any marks, not that they observed the absence of marks. Further,
there is no evidence that either Vaughan or Trammell was pressured to implicate
Akins or to improperly strengthen the state’s case against him. Akins presents no
evidence Trammell and Vaughan were complicit in an attempt to legitimize the
shooting officers’ conduct. At most, Trammell and Vaughan failed to investigate
other leads and to explore inconsistencies in the evidence. In a word, then, Trammell
and Vaughan were tangential figures in this incident. Akins thus has not established
that Trammell and Vaughan were guilty of more than mere negligence, which is
insufficient to establish a claim of conscience-shocking conduct.



                                            -9-
                            B. Fourth Amendment Claim


       Akins argues that a failure to conduct a reasonably thorough investigation
violates the Fourth Amendment’s requirement that seizures be based upon probable
cause. Probable cause is determined “‘at the moment the arrest is made,’ any later
developed facts are irrelevant to the probable cause analysis for an arrest.” Amrine,
522 F.3d at 832 (quoting United States v. Rivera, 370 F.3d 730, 733 (8th Cir. 2004)).
Because Trammell’s and Vaughan’s involvement occurred after Akins’s arrest, Akins
cannot maintain a Fourth Amendment claim against them.


        Akins maintains that our decisions in Hill v. Scott, 349 F.3d 1068 (8th Cir.
2003), and Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999), support his contention that
the officers’ post-arrest behavior could constitute a Fourth Amendment violation. We
do not agree. In Hill, the officers did not immediately release the arrestee once they
discovered that they did not have a warrant for his arrest. 349 F.3d at 1071. We
explained that continuing to hold an individual after it has been determined that there
was no lawful basis for the initial seizure contravenes the Fourth Amendment unless
there is an independent basis for continued detention. Id. at 1074. In Kuehl, the
investigating officer spoke to the suspect for only twenty seconds, ignored physical
evidence that the suspect was actually the victim in the altercation, and refused to
interview an eyewitness whose account corroborated the suspect’s statement. 173
F.3d at 648. We held that where there is no indication of exigent circumstances, an
officer who unreasonably fails to investigate the incident sufficiently before arresting
a suspect is not entitled to qualified immunity. Id. at 651. In this case, however,
Trammell’s and Vaughan’s alleged errors had no effect on the decision to arrest or
hold Akins, because the initial probable cause determination was made before either
officer arrived at the scene of the incident.




                                         -10-
                                         III.


       The judgment is reversed, and the case is remanded to the district court for the
entry of a judgment of dismissal on the claims against Trammell and Vaughan.
                       ______________________________




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