 United States Court of Appeals
           For the Eighth Circuit
       ___________________________

               No. 14-3074
       ___________________________

               Thomas A. Bowden,

       lllllllllllllllllllll Plaintiff - Appellee,

                           v.

Steve Meinberg; Patrick Hawkins; Chris Hoffman,

           lllllllllllllllllllll Defendants,

                  Vernon Martin,

     lllllllllllllllllllll Defendant - Appellant,

Benjamin Simmons; Aaron Gyurica; Wes Wagner,

          lllllllllllllllllllll Defendants.
       ___________________________

               No. 14-3075
       ___________________________

               Thomas A. Bowden,

       lllllllllllllllllllll Plaintiff - Appellee,

                           v.

Steve Meinberg; Patrick Hawkins; Chris Hoffman,

    lllllllllllllllllllll Defendants - Appellants,
               Vernon Martin; Benjamin Simmons; Aaron Gyurica,

                            lllllllllllllllllllll Defendants,

                                    Wes Wagner,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                    Appeals from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                             Submitted: April 16, 2015
                              Filed: August 25, 2015
                                  ____________

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

       Thomas Bowden sued several law enforcement officers and the county clerk
from Jefferson County, Missouri, alleging, among other claims, that they violated his
rights under the Fourth Amendment. Bowden asserts that Deputy Sheriff Vernon
Martin drafted, and the remaining defendants caused to be drafted, an affidavit in
support of a request for an arrest warrant that led to Bowden’s seizure without
probable cause.

      The defendants moved for summary judgment on the Fourth Amendment
claims based on qualified immunity. The district court denied the motion, but we
conclude that the facts taken in the light most favorable to Bowden do not show a



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violation of his constitutional rights. We therefore reverse the decision of the district
court.

                                           I.

       In a qualified immunity appeal, we have jurisdiction to resolve purely legal
issues based on the facts assumed by the district court, or facts likely assumed by the
court, when the record is viewed in the light most favorable to the non-movant.
Johnson v. Jones, 515 U.S. 304, 313, 319 (1995). We therefore recite the facts in the
light most favorable to Bowden.

      Benjamin Simmons and Aaron Gyurica were fishing on a bridge near
Bowden’s property in rural Missouri in 2009. Bowden shouted to the men to identify
themselves, and then fired a shotgun from his back deck when they failed to respond.
After the gunshot, Bowden and Simmons engaged in a heated verbal altercation,
during which Bowden was holding his shotgun. Bowden and Simmons each called
the police, and Martin was dispatched to investigate.

      Martin first spoke with Simmons and Gyurica at the residence of Simmons’s
grandmother, Barbara Voyles. Simmons and Gyurica reported their belief that
Bowden shot at them on the bridge. They explained that they heard a gunshot and
then saw leaves falling in front of them after the blast. Voyles stated that she could
call Howard Wagner, the Jefferson County circuit clerk, to see what Voyles could do.

      Martin next spoke with Bowden. Bowden admitted that he had fired his
shotgun, but said that he shot the weapon in a direction away from Simmons and
Gyurica. Martin relayed these circumstances by telephone to his supervisor, Corporal
Chris Hoffman. Hoffman ordered Martin to seize the shotgun and to draft a statement
averring that there was probable cause that Bowden had unlawfully used a weapon.



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       According to Martin, Hoffman informed him that a call was placed from
Voyles’s residence to Howard Wagner, the circuit clerk, who contacted Lieutenant
Colonel Steve Meinberg, who in turn contacted Lieutenant Patrick Hawkins. In
Martin’s account, Hawkins then directed Hoffman that Martin should be ordered to
seize the shotgun and draft the probable cause statement. Bowden initially named
circuit clerk Howard Wagner as a defendant, but later substituted the county clerk,
Wes Wagner, after discovery revealed that two calls were made from Voyles’s
residence to Wes Wagner’s office.

       After receiving direction from Hoffman, Martin returned to Bowden’s
residence, seized his shotgun, and obtained a written statement from him. Bowden
explained that he had fired in a direction away from Simmons and Gyurica after they
failed to identify themselves, because he thought their actions were “suspicious.”
Martin also obtained written statements from Simmons and Gyurica. They reiterated
their belief that Bowden shot at them on the bridge.

      Martin then drafted a probable cause statement, which read:

      1. I have probable cause to believe that . . . [Bowden] committed one or
      more criminal offense(s):

      Unlawful Use of a Weapon

      2. The facts supporting this belief are as follows:

      According to the victim’s [sic], they reported that they parked their pick
      up truck on a low water bridge in the area of [Bowden’s address], to fish
      off the bridge when a local resident Thomas Bowden shoot [sic] at them
      with his shotgun.

App. 243. Martin later admitted that he did not personally believe the claims of
Simmons and Gyurica that Bowden had fired a weapon in their direction. Martin also

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said that he did not think the facts established that Bowden had violated any Missouri
law.

       The Jefferson County prosecutor obtained an arrest warrant based on Martin’s
probable cause statement. Bowden learned that the warrant had been issued, and
turned himself in. A Missouri court then held a preliminary hearing and determined
that there was probable cause to believe that Bowden violated Mo. Rev.
Stat. § 571.030.1(4). Under that statute, a person commits the crime of unlawful use
of weapons if he “knowingly . . . [e]xhibits, in the presence of one or more persons,
any weapon readily capable of lethal use in an angry or threatening manner.”
Bowden was acquitted following a jury trial in 2010.

       Bowden filed his amended complaint in this case against Martin, Meinberg,
Hawkins, Hoffman, and Wes Wagner in December 2013. The amended complaint
alleged, as relevant on appeal, that the defendants violated Bowden’s rights under the
Fourth Amendment by causing him to be arrested without probable cause. The
defendants moved for summary judgment, arguing that they were entitled to qualified
immunity and, alternatively, that collateral estoppel barred Bowden from relitigating
the Missouri court’s determination that there was probable cause to believe Bowden
violated Missouri law.

       The district court denied the motions for summary judgment. The court ruled
that collateral estoppel did not apply, because Bowden now sought to challenge the
“integrity” of the evidence presented at the preliminary cause hearing. After noting
that Martin’s affidavit asserted probable cause to arrest Bowden even though Martin
did not believe that probable cause existed, the court denied summary judgment
because there was “a genuine issue of material fact regarding the existence of
probable cause.” The court ruled that Martin was not entitled to qualified immunity
because “the qualified immunity inquiry is identical to the probable cause question.”
The district court did not specifically address the qualified immunity of the other
defendants, but denied their motion for summary judgment on that issue as well. All

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of the officials appeal the district court’s denial of qualified immunity, and all but
Martin appeal the court’s ruling on collateral estoppel.

                                          II.

       Bowden first challenges our jurisdiction over this appeal. We have jurisdiction
over interlocutory appeals of orders denying qualified immunity if the appeal seeks
review of a purely legal issue. Johnson, 515 U.S. at 313. We do not have jurisdiction
to review “which facts a party may, or may not, be able to prove at trial.” Id. In this
case, the defendants contend that when the facts are viewed in the light most
favorable to Bowden, they did not violate Bowden’s clearly established rights under
the Fourth Amendment. This is a purely legal issue over which we have jurisdiction.
Id.; Sherbrooke v. City of Pelican Rapids, 513 F.3d 809, 813 (8th Cir. 2008). We
review de novo the district court’s decision on qualified immunity, viewing the
evidence in the light most favorable to Bowden. Doe v. Flaherty, 623 F.3d 577, 583
(8th Cir. 2010).

       Public officials are immune from suit if “their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A plaintiff seeking
damages under 42 U.S.C. § 1983 must show first that the defendant’s conduct
violated a constitutional right and, second, that the right was clearly established.
Pearson v. Callahan, 555 U.S. 223, 232 (2009). In this case, we elect to consider the
questions in that order.

       Bowden first argues that Martin violated his rights under the Fourth
Amendment by averring that he “ha[d] probable cause to believe” that Bowden
committed an offense when Martin did not actually believe that there was probable
cause. Whether probable cause existed, however, is an objective question of law.
Martin’s subjective belief is irrelevant to whether his affidavit included sufficient
facts to establish probable cause. Indeed, we have upheld the lawfulness of an arrest

                                         -6-
based on probable cause even where the arresting officers testified that they believed
probable cause was lacking. Warren v. City of Lincoln, Neb., 864 F.2d 1436, 1439-41
(8th Cir. 1989). Martin’s averment that he “ha[d] probable cause to believe” that
Bowden committed an offense was thus not a false statement, because the assertion
set forth a legal conclusion not a statement of historical fact.

       Bowden also argues that Martin intentionally or recklessly included false
statements in, and omitted facts from, other portions of the probable cause statement.
Much of Bowden’s complaint is without merit, because it focuses on Martin’s
subjective beliefs. There was no falsehood in Martin’s report that “[a]ccording to the
victim’s . . . Bowden shoot at them,” because this was an accurate report of what
Simmons and Gyurica told him. That Martin personally did not believe the men was
not relevant to the existence of probable cause, so the omission of Martin’s subjective
belief did not violate the Fourth Amendment.

       Bowden does complain about the omission of two historical facts: (1) that
Simmons and Gyurica did not actually see Bowden fire his shotgun and (2) that
Bowden told Martin that he fired the shotgun in a direction away from Simmons and
Gyurica. Even assuming for the sake of analysis that Martin intentionally or
recklessly omitted these facts from his affidavit, there was no violation of the Fourth
Amendment. If we reconstruct a hypothetical affidavit that includes these additional
facts, see Hawkins v. Gage County, Neb., 759 F.3d 951, 959 (8th Cir. 2014), there
was still probable cause to believe that Bowden committed an offense. That Simmons
and Gyurica were not looking at Bowden when he fired does not establish that
Bowden was innocent. Circumstantial evidence of Bowden shouting at the men and
leaves falling from trees above them after the gunshot could lead a man of reasonable
caution to infer that the gun was fired at the fishermen. Bowden’s denial merely
created a credibility question; it did not destroy probable cause.

      Even if Bowden’s account had been included and believed, moreover, there
was still probable cause to believe that an offense was committed. The Missouri

                                         -7-
statute does not require proof that a defendant fired a weapon at another person. It
is an offense knowingly to “[e]xhibit[]” the firearm in the “presence” of another
person “in an angry or threatening manner” when the weapon is “readily capable of
lethal use.” Mo. Rev. Stat. § 571.030.1(4). While Bowden denied that he fired his
shotgun at the men on the bridge, he admitted that he purposefully fired the gun from
his property nearby because the men did not identify themselves and he thought their
behavior was suspicious. App. 245. There was probable cause to believe that
Bowden knowingly “exhibited” the shotgun in the presence of the fishermen when
he fired it, see State v. Johnson, 964 S.W.2d 465, 468 (Mo. Ct. App. 1998), that the
exhibition was “angry or threatening” even if the gun was not aimed at the fishermen,
see State v. Rogers, 976 S.W.2d 529, 532 (Mo. Ct. App. 1998), and that the weapon
was “readily capable of lethal use” even if it had not yet been so used. See State v.
Wright, 382 S.W.3d 902, 904-05 (Mo. 2012).

       Because we conclude that Martin did not violate the Fourth Amendment, the
alleged conspiracy by the remaining defendants to cause Martin’s conduct also does
not amount to a constitutional violation. Slusarchuk v. Hoff, 346 F.3d 1178, 1183
(8th Cir. 2003). We need not address the separate question of whether any infringed
right was clearly established, although we note that the qualified immunity inquiry
is not identical to the question of probable cause: an official enjoys qualified
immunity for an objectively reasonable judgment about probable cause that turns out
to be incorrect. Anderson v. Creighton, 483 U.S. 635, 643-44 (1987). We also do not
consider whether there would be jurisdiction to review the district court’s decision
on collateral estoppel, and we express no view on the merits of that issue.

                                  *      *       *

      For the foregoing reasons, the order of the district court, R. Doc. 85, is
reversed, and the case is remanded for further proceedings.
                       ______________________________


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