                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-2040
                                    ___________

Terrance Morris; Ricardo Morris;       *
Rosalind Morris,                       *
                                       *
       Plaintiffs - Appellants,        * Appeal from the United States
                                       * District Court for the
       v.                              * Western District of Missouri
                                       *
Jarrett Lanpher; Robert Schweitzer,    *
                                       *
       Defendants - Appellees.         *
                                  ___________

                              Submitted: December 11, 2008
                                 Filed: April 24, 2009
                                  ___________

Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE,* District Judge.
                              ___________

LOKEN, Chief Judge.

      At 11 p.m. on July 28, 2003, Richard Schiele was shot in his Kansas City home
by two assailants. Schiele identified Ricardo Morris as one of the assailants to Police
Officer Jarrett Lanpher. Based on this identification, and some corroboration by other
witnesses, Lanpher obtained a warrant to search the nearby home where brothers
Terrance and Ricardo Morris lived with their mother, Rosalind. The warrant search



      *
        The HONORABLE RICHARD H. KYLE, United States District Judge for the
District of Minnesota, sitting by designation.
yielded no evidence, and the brothers were absolved of any role in the shooting.
Another officer kicked Terrance in the face while executing the warrant.

       Rosalind and her sons filed this § 1983 complaint against the Kansas City
Board of Police Commissioners and five police officers. The district court1 granted
summary judgment dismissing the Fourth Amendment claim against Lanpher and his
supervisor, Sergeant Robert Schweitzer. Morris v. Lanpher, 2007 WL 869498, at *5
(W.D. Mo. Mar. 20, 2007). One year later, a jury found in favor of the other officer
on the excessive force claims. The Morrises appeal only the dismissal of the Fourth
Amendment claim. They contend that the affidavit Lanpher submitted in obtaining
the search warrant contained deliberate falsehoods and recklessly disregarded the
truth. Reviewing the grant of summary judgment de novo, we affirm.

                                           I.

       After the shooting, Schiele did not identify his assailants before being taken to
a hospital. Lanpher interviewed Schiele at the hospital the next evening. Schiele said
he lived with a man named Jason, who was helping him remodel houses. Schiele
described the assailants as “two black males.” Lanpher’s interview report then states:

      The victim was asked if he knew anyone who would have done this he
      immediately thought that Jason had something to do with the attack and
      that the two dudes he hangs with w[]ere the one[]s who did the actual
      attack. He stated he knew the two dudes went by “Dink” and “Mont.”
      He stated he did not know them personally but knew Jason went to their
      house all the time around the corner. The victim was asked if he would
      be able to identify the subjects who attacked him and he stated, “Yes.”

Ricardo and Terrance Morris have been known since birth as “Dink” and “Mont.”


      1
       The HONORABLE FERNANDO J. GAITAN, JR., Chief Judge of the United
States District for the Western District of Missouri.

                                          -2-
       Some three hours later, Lanpher interviewed Schiele’s roommate, Jason
Lancaster, then in custody on other charges. Lancaster denied any part in the shooting
and said he visited Schiele in the hospital earlier that day. Schiele told Lancaster “two
black dudes shot him, one of them was stocky and the other a short dude.” Schiele
said “it might have been the two dudes who live in the 2nd house on the north side of
62nd Street,” who Lancaster knew only as “Dink” and “Mont.” Lancaster said he went
to their house before visiting Schiele that day, as neighbors had reported, but no one
was home. Lanpher’s interview report states:

      Lancaster was then shown a photo Line-up consisting of six black males
      all similar in appearance, which included a photograph of Ricardo
      Morris . . . in the number six position. Morris resides at 1318 E. 62nd
      Street, which was identified by neighbors as the residence that Lancaster
      had visited on his ATV earlier in the day. Lancaster identified Morris as
      the subject he knew as “Dink.”

The next morning, Lanpher visited Schiele at the hospital and showed him the same
six-photo line-up. Lanpher’s report states, “The victim viewed the line-up and
identified Morris as one of the suspect[]s who shot him.”

       That afternoon, Lanpher prepared an affidavit applying for a warrant to search
1318 E. 62nd Street for “Clothing, handguns, rifles, ammunition, spent shell casings,
trace evidence, flashlights.” After reciting the victim’s description of the shooting,
and what neighbors reported hearing and seeing at the time, the affidavit recited:

      Neighbors identified 1318 E. 62nd Street as the house that the victim’s
      friend hung out with. A computer check was conducted and a photo
      line-up was shown to the victim, which included a resident of 1318 E.
      62nd Street. The victim identified this subject as the one he wrestled
      with and shot him. The subject who lives with the victim also identified
      the subject.



                                          -3-
A Jackson County judge issued the warrant. Lanpher was present when a Tactical
Entry Team executed the warrant. Nothing was seized.

                                          II.

       Qualified immunity protects public officials from damage actions if their
conduct did not violate clearly established rights of which a reasonable person would
have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A police officer in
applying for a search warrant is entitled to qualified immunity from a § 1983 Fourth
Amendment damage claim if his conduct was objectively reasonable. “Only where
the warrant application is so lacking in indicia of probable cause as to render official
belief in its existence unreasonable . . . will the shield of immunity be lost.” Malley
v. Briggs, 475 U.S. 335, 344-45 (1986). Officer Lanpher satisfies that standard in this
case. His affidavit recited that he heard Schiele identify “Dink” and “Mont” as
possible assailants, gathered evidence identifying Dink and Mont and linking them to
Lancaster and to 1318 E. 62nd Street, and saw both Schiele and Lancaster identify
Ricardo Morris as “Dink,” one of the assailants, from a photo line-up. The affidavit
clearly was not “lacking in indicia of probable cause.” See Tangwall v. Stuckey, 135
F.3d 510, 519 (7th Cir. 1998).

       The Morrises argue that Lanpher is not entitled to qualified immunity for a
different reason -- because his warrant application “deliberately omitted material and
exculpatory information and included falsehoods.” The principle is sound. “A
warrant based upon an affidavit containing ‘deliberate falsehood’ or ‘reckless
disregard for the truth’ violates the Fourth Amendment” and subjects the police officer
to § 1983 liability. Bagby v. Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996), quoting
Franks v. Delaware, 438 U.S. 154, 171 (1978). Truthful in this context means that the
information put forth is “believed or appropriately accepted by the affiant as true.”
Franks, 438 U.S. at 165.



                                          -4-
       The district court rejected this contention based upon its review of the extensive
summary judgment record. After summarizing the many omissions and falsehoods
asserted by the Morrises, the court explained:

      The Court finds, however, that most of the alleged omissions and
      falsehoods . . . are either immaterial, not supported by the record, or
      merely conclusions or attorney argument. Whatever the victim’s level
      of knowledge regarding the Morris family, the victim identified the
      suspects as “Dink” and “Mont” -- the undisputed nicknames of Plaintiffs
      Ricardo and Terrance Morris. The materials found in the victim’s home
      do not automatically cast doubt as to the victim’s identification of
      suspects. Plaintiffs’ claims that Defendant Lanpher made false claims
      regarding what neighbors told him are merely conclusions that are
      unsupported by any facts in the record. . . . Furthermore, the omissions
      of the victim’s roommate’s activities and statements are largely
      immaterial in that the roommate was also a suspect in the shooting, and
      the roommate’s statements do not prevent suspicion of the Morris
      brothers, given the victim’s identification of them. 2007 WL 869498, at
      *5.

        After careful review of the record, we agree with the district court’s analysis.
The Morrises bore “the burden of proving the intentional or reckless inclusion of false
statements in a warrant affidavit.” United States v. Ozar, 50 F.3d 1440, 1443 (8th Cir.
1995). When Lanpher made a properly supported motion for summary judgment on
the ground of qualified immunity, they “may not respond simply with general attacks
upon the defendant’s credibility, but rather must identify affirmative evidence from
which a jury could find that the plaintiff has carried his or her burden of proving the
pertinent motive.” Crawford-El v. Britton, 523 U.S. 574, 600 (1998). The Morrises
presented no evidence Lanpher had a personal stake in the matter that might cause him
to act other than as an impartial criminal investigator. Compare Moody v. St. Charles
County, 23 F.3d 1410 (8th Cir. 1994). They offered no specific, nonconclusory
evidence that Lanpher believed his affidavit was false, or recklessly misconstrued
Schiele’s identification. Significantly, they presented no affidavit or deposition

                                          -5-
testimony by victim Schiele or by roommate Lancaster contradicting their photo line-
up identifications. Compare Hunter v. Namanny, 219 F.3d 825 (8th Cir. 2000).
Indeed, that the recitals in the warrant affidavit aligned closely with Lanpher’s
contemporaneous interview reports is strong evidence that Lanpher believed that
Schiele had identified one of his attackers, or at least accepted the identification as
true for purposes of further investigation. While we construe disputed facts in the
non-moving parties’ favor, we may not infer bad motive absent even a scintilla of
material fact supporting that inference.

      For these reasons, we conclude that the Morrises failed to submit probative
evidence that Lanpher’s warrant affidavit contained deliberate falsehoods or a reckless
disregard of the truth, and that an affidavit “supplemented by the omitted information,
would not have been sufficient to support a finding of probable cause.” Riehm v.
Engelking, 538 F.3d 952, 966 (8th Cir. 2008); see Bagby, 98 F.3d at 1099 (“qualified
immunity is appropriate if defendant has been accused of submitting a recklessly false
affidavit and if a corrected affidavit would still provide probable cause to arrest or
search”). Accordingly, summary judgment was proper.

     Without an underlying constitutional violation by Lanpher, the Morrises’
§ 1983 claim against Schweitzer for failure to supervise necessarily fails. See
Brockinton v. City of Sherwood, 503 F.3d 667, 673 (8th Cir. 2007).

      The judgment of the district court is affirmed.
                     ______________________________




                                         -6-
