                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 99-1423
                                   ___________

Elmer Pace and Linda Pace,              *
                                        *
            Appellees,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Southern
                                        * District of Iowa.
City of Des Moines, Iowa,               *
                                        *
            Defendant, and              *
                                        *
Brian Danner,                           *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: November 17, 1999

                                 Filed: January 13, 2000
                                  ___________

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

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Elmer and Linda Pace brought an action against Officer Brian Danner and the
City of Des Moines seeking damages under 42 U.S.C. § 1983 for various acts arising
out of a criminal investigation of Mr. Pace conducted by Officer Danner. Officer
Danner now seeks a reversal of the district court's denial of his motion for summary
judgment on the ground of qualified immunity on four of the Paces' claims. We affirm
in part and reverse in part.

                                            I.
       Summary judgment is proper when the record, viewed in the light most favorable
to the nonmoving party and giving that party the benefit of all reasonable inferences,
shows that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). We review a district
court's denial of summary judgment de novo. Collins v. Bellinghausen, 153 F.3d 591,
595 (8th Cir. 1998). Ordinarily, a denial of summary judgment is not a "final" decision
and is therefore not immediately appealable. See 28 U.S.C. § 1291. A denial of
summary judgment on the grounds of qualified immunity, however, may be reviewed
on interlocutory appeal when the issue presented "is a purely legal one: whether the
facts alleged ... support a claim of violation of clearly established law." Mitchell v.
Forsyth, 472 U.S. 511, 528 n.9, 105 S. Ct. 2806, 2817 n.9, 86 L. Ed. 2d 411 (1985).

        Qualified immunity shields Officer Danner from suit if "a reasonable officer
could have believed [his actions] to be lawful, in light of clearly established law and the
information [that he] possessed." Anderson v. Creighton, 483 U.S. 635, 641, 107
S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987). "The qualified immunity standard 'gives
ample room for mistaken judgments' by protecting 'all but the plainly incompetent or
those who knowingly violate the law.' " Hunter v. Bryant, 502 U.S. 224, 229, 112
S. Ct. 534, 537, 116 L. Ed. 2d 589 (1991) (per curiam), quoting Malley v. Briggs, 475
U.S. 335, 343, 341, 106 S. Ct. 1092, 1097, 1096, 89 L. Ed. 2d 271 (1986).

       In this case, the events in question were precipitated by a report that the Des
Moines police received from a woman who claimed to have been attacked by a man
with a knife. Based on the victim's description of her assailant, the Des Moines police
department suspected Mr. Pace. Officer Danner proceeded to the house where
Mr. Pace and his wife maintained both a business and a residence. Officer Danner
entered the house through the customer entrance, flashed his firearm, told Mr. Pace to

                                           -2-
step outside, and pushed Mr. Pace against a wall. Officer Danner then ordered
Mr. Pace to remove his shirt so that he could photograph the tattoo on Mr. Pace's chest,
and Mr. Pace complied. Mr. Pace asserts that this incident constituted an unlawful
search and seizure, as Officer Danner lacked probable cause and failed to obtain a
warrant prior to seizing and photographing Mr. Pace.

       Officer Danner makes several arguments supporting his motion for summary
judgment on this issue. First, he argues that Mr. Pace consented to the search, and
therefore that a reasonable police officer clearly could have believed that the search of
Mr. Pace was lawful. Mr. Pace disputes this version of the events, however, and
contends that he removed his shirt only after Officer Danner ordered him to do so. At
the heart of this argument is a dispute of fact -- whether or not Mr. Pace consented to
the search. The argument does not, therefore, present a "purely legal issue," and may
not be considered by us on interlocutory appeal. See Johnson v. Jones, 515 U.S. 304,
313, 115 S. Ct. 2151, 2156, 132 L. Ed. 2d 238 (1995).

       Officer Danner also maintains that detaining and photographing Mr. Pace
without his consent was permissible under the fourth amendment. As the Supreme
Court stated in United States v. Dionisio, 410 U.S. 1, 8, 93 S. Ct. 764, 769, 35
L. Ed. 2d 67 (1973), "the obtaining of physical evidence from a person involves a
potential Fourth Amendment violation at two different levels -- the 'seizure' of the
'person' necessary to bring him into contact with government agents ... and the
subsequent search for and seizure of the evidence."

       Officer Danner addresses the detention question with the assertion that he had
a reasonable suspicion that Mr. Pace was the assailant, entitling him to detain Mr. Pace
briefly for an investigative stop. Officer Danner then contends that his subsequent
order for the removal of Mr. Pace's shirt was legitimate because Mr. Pace did not have
a reasonable expectation of privacy for his upper body. Officer Danner notes that on
"two or three" other occasions another officer had seen Mr. Pace in public wearing tank
top shirts that partly revealed the tattoo on Mr. Pace's chest, and yet another officer

                                          -3-
claimed to have seen Mr. Pace wearing tank top shirts "numerous" times over the past
several years. Officer Danner suggests that given this behavior, Mr. Pace could not
reasonably expect that the surface of his upper body, and in particular his tattoo, could
be kept private.

      We assume, arguendo, that Officer Danner had sufficient reasonable suspicion
to detain Mr. Pace, and that the detention occurred in a public place (and not in
Mr. Pace's residence). We still reach the conclusion that Officer Danner's actions were
contrary to the fourth amendment, and that no reasonable officer could have believed
otherwise in light of clearly established law.

       We are aware that "the Fourth Amendment provides no protection for what 'a
person knowingly exposes to the public, even in his own home or office.' " Dionisio,
410 U.S. at 14, 93 S. Ct. at 771, quoting Katz v. United States, 389 U.S. 347, 351, 88
S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967). Courts applying this principle have
suggested that the protection of the fourth amendment may be wholly denied to voices,
faces, and fingerprints. See Dionisio, 410 U.S. at 14, 93 S. Ct. at 771 (voice
exemplar); Application of Rodgers, 359 F. Supp. 576, 577-78 (E.D. N.Y. 1973)
(photograph of face); and Hayes v. Florida, 470 U.S. 811, 816-17, 105 S. Ct. 1643,
1647, 84 L. Ed. 2d 705 (1985) (fingerprints).

       We think, however, that the analogy that Officer Danner seeks to draw between
the state action in those cases and his conduct in this one is untenable. There is a
legally relevant distinction between the daily revelations of one's voice, face, and
fingerprints that are an inevitable part of living in an interactive world, on the one hand,
and the occasional use of a tank top on the other. Although it is perhaps possible to
imagine a person who so consistently bares himself or herself from the waist up that all
reasonable expectations of privacy for that area are lost, wearing a tank top "two or
three" times (or even "numerous" times) is surely not enough to produce so drastic a
result. Were we to find otherwise, regular visitors to public beaches and swimming
pools would be surprised to discover that their visits have cost them the lasting loss of

                                            -4-
a reasonable expectation of privacy over very substantial portions of their bodies. We
do not believe that any reasonable interpretation of Dionisio and its progeny could lead
to such a conclusion.

       We also disagree with Officer Danner's second contention, namely, that a
reasonable officer could have believed that the photographing was within the
permissible limits of an investigative stop. We recognize that an officer who has a
reasonable suspicion that crime is afoot, but not probable cause to arrest a person, may
conduct an investigative stop, and that this may include questioning and other efforts
to identify the person in question. See United States v. Johnson, 64 F.3d 1120, 1124
(8th Cir. 1995), cert. denied, 516 U.S. 1139 (1996), and United States v. Jones, 759
F.2d 633, 642 (8th Cir. 1985), cert. denied, 474 U.S. 837 (1985).

       If a stop lasts too long, however, or if it is too intrusive, "then the stop is
converted into an arrest." United States v. Dixon, 51 F.3d 1376, 1380 (8th Cir. 1995).
In determining whether an officer's conduct goes beyond what is permissible in an
investigative stop, we are bound to consider " 'the degree of fear and humiliation that
the police conduct engenders.' " United States v. Bloomfield, 40 F.3d 910, 917 (8th
Cir. 1994) (en banc), cert. denied, 514 U.S. 1113 (1995), quoting United States v.
Lego, 855 F.2d 542, 545 (8th Cir. 1988); see also United States v. Hill, 91 F.3d 1064,
1070 (8th Cir. 1996). In this case, although it may be true that Officer Danner
photographed Mr. Pace as quickly as possible, we believe that Officer Danner's actions
were too intrusive to be considered merely part of an investigative stop rather than a
search fully implicating Mr. Pace's fourth amendment rights. It is apparent to us that
being ordered to go outside and to take off one's shirt so that a police officer can take
pictures involves much more fear and humiliation than simply being asked questions
or being compelled to identify oneself.

       We believe that a reasonable officer cognizant of clearly established law would
realize that such an imposition requires a warrant, something that Officer Danner did



                                          -5-
not obtain. In these circumstances, therefore, we do not believe that Officer Danner
is entitled to qualified immunity for the photographing incident.

                                          II.
       After obtaining a photograph of Mr. Pace's tattoo, Officer Danner conducted an
interview with the victim of the assault. He showed the victim a photo lineup of the
faces of six men and asked if she could identify her assailant. The victim was able to
rule out four of the six prospects, but was uncertain about the last two. After some
prodding by Officer Danner, she assigned a "60-65 percent" probability that one of the
men pictured was her assailant, and a "10 percent" probability that the other man
pictured (who was Mr. Pace) was her assailant. Officer Danner then showed her a
picture of Mr. Pace alone, and the victim stated that she did not think that Mr. Pace's
hairline matched that of her assailant. The victim was also unable to identify either of
two bicycles belonging to Mr. Pace as the bicycle on which her assailant escaped.

       Officer Danner subsequently showed the victim two pictures of Mr. Pace without
his shirt on, revealing the tattoo. Upon seeing these final pictures the victim said, "oh,
man," and became visibly upset. She said "that looks just like it," and proceeded to
state that the tattoo, shoulders, and arms in the picture looked like those of her
assailant. At the conclusion of the interview the victim stated that she was "85-90
percent" sure that the man pictured with the tattoo was her assailant. Mr. Pace
contends in his claim for malicious prosecution that this identification procedure was
impermissibly suggestive and that it was the proximate cause of the state's decision to
prosecute him.

       "To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must show a
deprivation of a right, privilege, or immunity secured by the Constitution or the laws
of the United States." Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999). We
do not believe that Mr. Pace's allegations of malicious prosecution even state a claim
for which relief can be granted under § 1983. It is well established in this circuit that
"[a]n action for malicious prosecution by itself is not punishable under § 1983 because

                                           -6-
it does not allege a constitutional injury." Sanders v. Sears, Roebuck & Co., 984 F.2d
972, 977 (8th Cir. 1993); see also Gordon v. Hansen, 168 F.3d 1109, 1114 (8th Cir.
1999).

       In the context of unduly suggestive lineups, only a violation of the core right --
the right to a fair trial -- is actionable under § 1983. See Hensley v. Carey, 818 F.2d
646, 648-49 (7th Cir. 1987), cert. denied, 484 U.S. 965 (1987). The jurisprudential
doctrine described in Manson v. Brathwaite, 432 U.S. 98, 113 n.13, 97 S. Ct. 2243,
2252 n.13, 53 L. Ed. 2d 140 (1977), against the admission of unduly suggestive lineups
is only a procedural safeguard, and does not establish a constitutional right to be free
of suggestive lineups; see also Hensley, 818 F.2d at 648. In this case, Mr. Pace's claim
for malicious prosecution does not allege that his trial was unfair.

       A court deciding the issue of qualified immunity "must first determine whether
the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so,
proceed to determine whether that right was clearly established at the time of the
alleged violation." Conn v. Gabbert, 526 U.S. 286, ___, 119 S. Ct. 1292, 1295, 143
L. Ed. 2d 399 (1999). Since we conclude that Mr. Pace failed to allege sufficient facts
to support a claim that he was deprived of a constitutional right, we also conclude that
Officer Danner is entitled to summary judgment on the ground of qualified immunity
on the malicious prosecution claim.

                                          III.
       After interviewing the victim, Officer Danner interviewed two other witnesses,
neither of whom could positively identify Mr. Pace. Officer Danner then discussed the
case with a county prosecutor, and together they sought an arrest warrant for Mr. Pace.
Mr. Pace was subsequently arrested and detained; he was ultimately acquitted at a trial.
Mr. Pace claims that there was inadequate probable cause to support his arrest and
subsequent detention.




                                             -7-
       Probable cause exists if "at the moment the arrest was made ... the facts and
circumstances within [a police officer's] knowledge and of which [the officer] had
reasonably trustworthy information were sufficient to warrant a prudent man in
believing" that the person arrested committed the crime with which he was charged.
Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964). When the
plaintiff in an action under § 1983 contends that an officer acted without probable
cause, the officer is entitled to qualified immunity unless the "warrant application is so
lacking in indicia of probable cause as to render official belief in its existence
unreasonable." George v. City of St. Louis, 26 F.3d 55, 57 (8th Cir. 1994). As this
standard makes clear, there need not be actual probable cause for an officer to be
shielded by qualified immunity; an objectively reasonable belief that there was probable
cause is enough. See Hunter, 502 U.S. at 228-29, 112 S. Ct. at 537; see also
Thompson v. Reuting, 968 F.2d 756, 760 (8th Cir. 1992).

       When the district court in this case considered the application of qualified
immunity, it stated that a plaintiff can defeat a motion for summary judgment on the
grounds of qualified immunity if the following three elements are present: an asserted
violation of a constitutional right, a demonstration that the right was clearly established,
and "a genuine issue of fact as to whether the official would have known that his
alleged conduct would have violated plaintiff's clearly established right." The district
court found that Mr. Pace claimed violations of clearly established constitutional rights,
and that he raised a genuine issue of fact "as to whether Danner should have known
that his conduct would violate [these] right[s]." The district court therefore held that
Officer Danner was not entitled to immunity.

       The inquiry outlined by the district court in this case is a restatement of the
standard frequently used in this circuit to evaluate motions for summary judgment on
the ground of qualified immunity. See, e.g., Lambert v. City of Dumas, 187 F.3d 931,
935 (8th Cir. 1999); Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996), cert.
denied, 519 U.S. 1011 (1996); and Cross v. City of Des Moines, 965 F.2d 629, 631-32
(8th Cir. 1992). The restatement is, however, incomplete. Courts deciding questions

                                            -8-
of qualified immunity must also recognize that "whether summary judgment on grounds
of qualified immunity is appropriate from a particular set of facts is a question of law."
Lambert, 187 F.3d at 935.

       Of course, the burden remains on the proponent of the immunity to establish the
relevant predicate facts, and at the summary judgment stage the nonmoving party is
given the benefit of all reasonable inferences. See Arnott v. Mataya, 995 F.2d 121, 124
(8th Cir. 1993). In the event that a genuine dispute exists concerning predicate facts
material to the qualified immunity issue, the defendant is not entitled to summary
judgment on that ground. See Lambert, 187 F.3d at 935. What must be kept in mind,
however, is that once the predicate facts have been established, for the purposes of
qualified immunity there is no such thing as a "genuine issue of fact" as to whether an
officer "should have known" that his conduct violated constitutional rights. The
conduct was either "reasonabl[e] under settled law in the circumstances," Hunter, 502
U.S. at 228, 112 S. Ct. at 537, or it was not, and this is a determination of law that
should be made at "the earliest possible stage in litigation," id. at 227.

       We restate for emphasis that whether an officer "acted reasonably under settled
law in the circumstances," id. at 228, is a question of law, and not itself a predicate
fact. "Predicate facts" include only the relevant circumstances and the acts of the
parties themselves, and not the conclusions of others about the reasonableness of those
actions. When there is no dispute among the parties as to the relevant facts, as is the
case here with Mr. Pace's unlawful arrest and detention claim, a court should always
be able to determine as a matter of law whether or not an officer is eligible for qualified
immunity -- that is, whether or not the officer acted reasonably under settled law given
the particular set of facts.

     We note that this approach is in accord with our cases as well as those of the
Supreme Court. As the Supreme Court explained in Hunter, qualified immunity is " 'an
immunity from suit rather than a mere defense to liability' " (emphasis in original),
Hunter, 502 U.S. at 227, 112 S. Ct. at 536-37, quoting Mitchell, 472 U.S. at 526, 105

                                           -9-
S. Ct. at 2815, and its availability "ordinarily should be decided by the court long
before trial," Hunter, 502 U.S. at 228. Qualified immunity is intended to protect
officials from the "disruption and expense of trial," Greiner v. City of Champlin, 27
F.3d 1346, 1351-52 (8th Cir. 1994), among other things, and this purpose is defeated
if officials must always endure a trial in order to avail themselves of the immunity. See
Mitchell, 472 U.S. at 526.

       Regarding Mr. Pace's claims of unlawful detention and arrest, the relevant
predicate facts are, as we have indicated, not in dispute. The victim stated at the
conclusion of her interview with Officer Danner that she was "85-90 percent" sure that
Mr. Pace was the assailant. "In assessing [the] reliability [of an identification], we
consider such factors as the opportunity of the witness to view the suspect during the
commission of the crime; the witness's degree of attention; the accuracy of the witness's
prior description of the suspect; the level of certainty demonstrated by the witness at
the confrontation; and the length of time between the crime and the confrontation."
Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir. 1996), cert. denied, 519
U.S. 867 (1996).

       Applying Brodnicki, we believe that the victim's statement was sufficiently
credible to allow a reasonable officer to believe that probable cause existed. Although
the victim said that her attention focused on her attacker's knife, she had a lengthy
opportunity to view her attacker and provided a detailed description of him. This
description turned out to fit Mr. Pace, with only minor discrepancies. See Devose v.
Addison, 172 F.3d 632, 633 (8th Cir. 1999). The victim was interviewed by Officer
Danner less than 24 hours after her attack, and she ultimately stated with a high level
of certainty that Mr. Pace was her attacker.

       Mr. Pace contends, however, that Officer Danner conducted the interview in an
impermissibly suggestive manner, and that the victim's identification should therefore
be eliminated from the probable cause analysis. We disagree. We are persuaded by
Officer Danner's argument that the display of Elmer Pace's tattoo is analogous to a one-

                                          -10-
man showup, a procedure that does not violate due process. See Brodnicki, 75 F.3d
at 1265. Although one-man showups have been criticized as "inherently suggestive and
a practice to be avoided," United States v. Sanders, 547 F.2d 1037, 1040 (8th Cir.
1976), cert. denied, 431 U.S. 956, 97 S.Ct. 2679 (1977), in this case the suggestive
nature of the procedure, if any, diminished, but did not eliminate, the probative value
of the identification. We believe, moreover, that in the present legal context Officer
Danner's subjective motive for conducting the interview in the way he did is irrelevant:
The question is whether the technique that he used is objectively reasonable. In light
of the credibility of the statement as evaluated under the Brodnicki standard, we believe
that the victim's identification was sufficiently probative to allow a reasonable officer
to believe that probable cause existed.

       We note, moreover, that the victim's identification of Mr. Pace was supported
by a number of other facts. The descriptions provided by the two witnesses to the
crime, although not detailed, corroborated the victim's story. Mr. Pace largely fit the
victim's detailed initial description of her assailant, given shortly after the attack. The
assailant's path of escape was in the direction of Mr. Pace's home. Finally, Mr. Pace
had a criminal history that included convictions for assault and carrying weapons
(including a knife, the weapon brandished by the assailant). Even if we were to give
no weight to the victim's interview with Officer Danner, we believe it likely that these
additional facts would provide enough support for a finding of probable cause to entitle
Officer Danner to qualified immunity. See Brodnicki, 75 F.3d at 1265.

                                           IV.
       For the reasons stated herein, the district court's denial of summary judgment to
Officer Danner on Mr. Pace's claim of unreasonable search and seizure is affirmed, and
the district court's denial of summary judgment to Officer Danner on Mr. Pace's claims
of malicious prosecution, unlawful detention, and unlawful arrest is reversed. We
remand the case for further proceedings consistent with this opinion.




                                           -11-
A true copy.

      Attest:

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




                          -12-
