                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 97-2339
                                 ___________

MARILYN JOHNSON; RANDY                  *
MCDONALD; CASANDRA                      *
WALKER; WILLIE ALBERT                   *
DUKES,                                  *
                                        *
             Plaintiffs-Appellees,      *
                                        * Appeal from the United States District
      v.                                * Court for the Eastern District of
                                        * Arkansas.
WANE DAVIS, a Forrest City Police *
Officer; ED NICKS, a Forrest City       *
Police Officer,                         *
                                        *      [UNPUBLISHED]
             Defendants-Appellants.     *
                                   ___________

                        Submitted: November 18, 1998

                            Filed: February 9, 1999

                                 ___________

Before RICHARD S. ARNOLD, FAGG, and HALL,1 Circuit Judges.

                                 ___________




      1
       The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
PER CURIAM.

       Former Forrest City, Arkansas, police officers Wane Davis and Ed Nicks
appeal the district court’s2 decision denying their request for summary judgment
based on their claim of qualified immunity. This appeal arises from appellants’
participation in the search of the duplex at 772 Annette Street, Forrest City, Arkansas,
on March 9, 1993. We affirm the decision of the district court.

                                           I.
       First, appellees have filed a motion to dismiss, asserting that this Court lacks
jurisdiction to consider an interlocutory appeal arising from the district court’s denial
of summary judgment based on qualified immunity. This Court has clearly stated,
however, that "[w]e have jurisdiction to review the denial of summary judgment
based on qualified immunity, but that jurisdiction is limited to abstract issues of law
and does not extend to arguments concerning the sufficiency of the evidence."
Mueller v. Tinkham, 162 F.3d 999, 1002 (8th Cir. 1998). We may therefore consider
whether “all of the conduct which the District Court deemed sufficiently supported
for purposes of summary judgment met the [qualified immunity] . . . standard of
‘objective legal reasonableness.’” Behrens v. Pelletier, 516 U.S. 299, 313 (1996).

                                            II.
        In evaluating claims of qualified immunity, this Court examines “whether the
appellees asserted a violation of a federal right, whether that right was clearly
established, and whether a reasonable official in appellant[s’] . . . position would have
known that his conduct violated that right.” Walden v. Carmack, 156 F.3d 861, 868-
69 (8th Cir. 1998). On summary judgment, “we are required to undertake a legal
analysis of whether the appellees’ allegations and the evidence presented, taken in the
light most favorable to the appellees, present one or more claims that appellant[s] .
. . violated well-established rights of the appellees.” Id. at 869. Appellees “may not
rest upon mere denials or allegations in the pleadings, but must set forth specific facts
sufficient to raise a genuine issue for trial.” Davis v. Fulton County, Arkansas, 90
F.3d 1346, 1350 (8th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986)).


      2
        The Honorable George Howard, United States District Judge for the Eastern
District of Arkansas.

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        Here, the district court found material disputes of fact existed as to whether
appellants’ conduct was objectively reasonable in light of the lack of particularity in
the warrant and the unreasonableness of the search. The law was clearly established
at the time of the search in 1993 that a search warrant must describe with specificity
the place to be searched. See Dalia v. United States, 441 U.S. 238, 255 (1979). Here,
there were serious defects in the warrant. While officers executed the warrant at 772
Annette Street, the warrant stated that 775 Annette was to be searched. In addition,
while the affidavit supporting the warrant stated that the search was to be conducted
at “the home of Sheryl Jones,” officers were informed that Marilyn Johnson, not
Sheryl Jones, was the lessee of the duplex.
        We cannot say that the district court erred in finding that there was a material
question of fact as to whether it was objectively reasonable for appellants to continue
the search in light of their failure to reasonably “ascertain and identify the place
intended to be searched.” Maryland v. Garrison, 480 U.S. 79, 88 (1987). Initially,
it may have been reasonable to rely on another officer’s description of the place to be
searched and to enter the duplex from the rear, especially because appellants did not
personally procure the warrant. But on these facts, we cannot say that it was
objectively reasonable for appellants to not realize that there were serious defects in
the warrant at some point during the search. Appellants’ conclusory allegations that
they “had no reason to know or to suspect that the premises searched were not those
described in the search warrant” do not change our analysis. If and when appellants
became aware of the defects in the warrant, clearly established law would have
required that they stop their search of 772 Annette Street. See Garrison, 480 U.S. at
86.
        In addition, “the law prohibiting unnecessarily destructive behavior while
searching a citizen’s home was clearly established in 1983.” Ginter v. Stallcup, 869
F.2d 384, 388 (8th Cir. 1989); see also Hummel-Jones v. Strope, 25 F.3d 647, 650
(8th Cir. 1994). Affidavits from appellees incorporating allegations made in the
complaint allege that a chair on the front porch was broken and that everything at 772
Annette Street “had been pulled off shelves, out of . . . [drawers], furniture had been
turned over, it was destroyed.”
          Appellants claim that there is no direct evidence linking them individually
to any destructive act taken during the search, and that they should therefore receive
qualified immunity. While there is no evidence controverting appellants’ affidavits
that they did not personally damage any item at 772 Annette Street, these same
affidavits establish that appellants were at least present during the search. In
addition, their own affidavits do not suggest that they were mere bystanders during

                                          3–
the search. See Liston v. County of Riverside, 120 F.3d 965, 981 (9th Cir. 1997)
(refusing to grant summary judgment to officers who admitted to being inside
premises during execution of the warrant); James v. Sadler, 909 F.2d 834, 837 (5th
Cir. 1990) (finding back-up officers participated in search); but see Jenkins v. Wood,
81 F.3d 988, 995 (10th Cir. 1996) (granting summary judgment to supervisory officer
who was merely present in the home during the challenged search, and to other
officers where there was no evidence that any personally participated in any of the
destruction). As a result, there is also a material dispute of fact as to whether
appellants participated in an unreasonably-conducted search.
       Indeed, to the extent that appellants' arguments relate to whether they “actually
committed the act[s] of which [they] . . . are accused, or damages, or causation, or
other similar matters that the plaintiff[s] must prove, we have no jurisdiction to
review them in an interlocutory appeal of a denial of a summary judgment motion
based on qualified immunity.” Miller v. Schoenen, 75 F.3d 1305, 1309 (8th Cir.
1996).
       In light of these disputed issues of material fact, we find that the district court
properly refused to grant appellants summary judgment. Appellees’ motion to
dismiss is DENIED. The decision of the district court is AFFIRMED.


A true copy.

     ATTEST:

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




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