                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2394
                        ___________________________

                                Zackary Lee Stewart

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Karl Wagner, Matt Selby

                     lllllllllllllllllllll Defendants - Appellants

                                   ____________

                    Appeal from United States District Court
                for the Western District of Missouri - Springfield
                                 ____________

                           Submitted: February 9, 2016
                            Filed: September 12, 2016
                                ____________

Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
                              ____________

LOKEN, Circuit Judge.

      In 2008, a Missouri jury convicted Zackary Stewart of murdering David Dulin.
On appeal, Stewart argued the trial court erred in denying his motion for new trial
based on newly-discovered evidence. The Supreme Court of Missouri agreed,
reversed the conviction, and remanded for a new trial. State v. Stewart, 313 S.W.3d
661 (Mo. banc 2010). The charges were dropped when another person confessed to
the murder. Stewart then filed this civil damage action against five individuals and
Stone County, Missouri, asserting various claims under 42 U.S.C. § 1983 and
Missouri state law. Defendants moved for summary judgment. The district court
granted summary judgment and dismissed Stone County, the County Sheriff, and the
Sheriff’s criminal investigation supervisor. The court denied the motions of Stone
County Prosecutor Matt Selby, lead investigator Karl Wagner, and investigator
Orville Choate, who has not appealed, rejecting their claims of absolute, qualified,
and official immunity. Selby and Wagner appeal. We reverse in part and remand.

                      I. Jurisdiction and the Issues on Appeal.

       “An interlocutory order denying qualified immunity is immediately appealable
to the extent that it turns on an issue of law. If the order turns on issues of fact, rather
than an abstract issue of law, we lack jurisdiction over the appeal because the
decision is not a final order immediately appealable under the collateral order
doctrine.” Aaron v. Shelley, 624 F.3d 882, 883-84 (8th Cir. 2010) (citation and
quotations omitted). We also lack jurisdiction over pendent interlocutory claims
under state and federal law unless those claims are “inextricably intertwined with the
collateral order that is properly appealed, or where review [is] necessary to ensure
meaningful review of the properly appealed issue.” Kincade v. City of Blue Springs,
64 F.3d 389, 394 (8th Cir. 1995), cert. denied, 517 U.S. 1166 (1996).

       Here, Selby properly appeals the denial of qualified immunity and absolute
prosecutorial immunity from Stewart’s § 1983 due process claim based on the alleged
fabrication of false testimony by a witness at Stewart’s preliminary hearing. Selby
and Wagner properly appeal the denial of qualified immunity from Stewart’s § 1983
Sixth Amendment claims for actions that resulted in testimony by jailhouse
informants at his criminal trial. However, we decline Selby’s further invitation to
review the district court’s denial of (i) § 1983 claims that Selby has not briefed, such



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as Stewart’s § 1983 conspiracy claim; and (ii) Stewart’s state law claims.1 This
opinion should not be construed as expressing our view on any of these other claims,
with the following exception:

       Stewart claims that investigators Wagner and Choate violated his right to due
process as defined in Brady v. Maryland, 373 U.S. 83, 87 (1963), when they caused
the prosecution not to disclose evidence that would have been favorable to the
defense at Stewart’s trial. The summary judgment record is replete with material fact
disputes regarding these claims, and Wagner has not appealed the denial of qualified
immunity. However, we note that, while a prosecutor’s duty to disclose is absolute,
to recover damages from other law enforcement officials for a Brady violation, a
§ 1983 plaintiff must prove the requisite mens rea. In denying investigators Wagner
and Choate summary judgment on this claim, the district court adopted the
amorphous “bad faith” mens rea standard set forth in White v. McKinley, 519 F.3d
806, 814 (8th Cir. 2008), rather than the more precise standard adopted in our earlier,
and therefore controlling, opinion in Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir.
2004) -- “Brady ensures that the defendant will obtain relief from a conviction tainted
by the State’s nondisclosure of materially favorable evidence, regardless of fault, but
the recovery of § 1983 damages requires proof that a law enforcement officer other
than the prosecutor intended to deprive the defendant of a fair trial.” (Emphasis
added.) The district court must apply this controlling standard when the issue again
arises on remand, whether before, during, or after trial.


      1
        Selby argues that he is entitled to official immunity under Missouri law for his
performance of discretionary acts as a prosecutor. But he cites no authority, as he
must, establishing that interlocutory denials of official immunity under state law are
collateral orders within our limited appellate jurisdiction. In addition, Missouri’s
official immunity doctrine shields only negligent acts. Davis v. Lambert-St. Louis
Int’l Airport, 193 S.W.3d 760, 763 (Mo. banc 2006). The district court found genuine
issues of material fact as to whether Stewart could prove intentional misconduct, not
merely negligent acts.

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                     II. The “Fabricated Evidence” Claim.

      On November 29, 2006, Dulin called 911 from his home in Stone County and
reported that he had been shot with his own .22 caliber handgun by two men in their
twenties or thirties, and that one identified himself as the boyfriend of an “Eby girl
from Hurley.” Dulin died at the scene. The Stone County Sheriff’s Office assigned
Wagner as lead detective in the homicide investigation.

       The investigation focused on Dulin’s statement that the boyfriend of an “Eby
girl from Hurley” was involved. Stewart, then eighteen years old, was the son of
Paula Eby of Hurley. His sisters were Candy Seaman, married to but separated from
Tim Seaman, and Christy Pethoud, then living with her boyfriend, Leo Connelly.
Though Pethoud’s last name was not “Eby,” the investigation treated her as an “Eby
girl.” Interviewed on December 1, Stewart told investigators that he spent the night
in question at the home of Pethoud and Connelly, and that Tim Seaman was married
to his sister, Candy Seaman.

       On March 15, 2007, Alicia Kimberling arrived at the Stone County Judicial
Center for a probation appointment. Wagner learned that Kimberling had said Leo
Connelly was involved in the homicide. He arrested her for an unresolved probation
violation and interviewed her. Kimberling identified Connelly and Pethoud as
Dulin’s killers but did not claim Stewart was involved. Wagner told her Stewart was
a suspect and Stewart and Connelly were together that night. She agreed to assist the
investigation after learning about potential rewards for cooperating. Wagner
provided Kimberling with devices to record conversations with Connelly, Candy
Seaman, and Stewart on March 16, 17, and 20. The recordings provided no
incriminating evidence.

      On March 27, after Selby had discussed a plea agreement with Kimberling’s
attorney, Selby and Wagner interviewed Kimberling. She incriminated Stewart for

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the first time, claiming that she saw Stewart, Connelly, and Pethoud in a car shortly
after the homicide; that Connelly was covered in blood; that Stewart was in the back
of the car; and that she saw a gun. At this point in the recorded interview, Kimberling
stopped answering questions and said: “I’m scared. . . . I’m so scared to talk to you
guys.” Selby responded:

      You know, Alicia, you’re not -- I don’t think by talking you’re
      increasing anything that you have to be scared of, you know what I’m
      saying? I mean, the things that you’ve already talked about would put
      you in the position of being a witness. Okay? So to tell everything you
      know is not going to make things any worse, but if it’s more helpful to
      us, it’s going to be more helpful to you.

      Also on March 27, Wagner questioned Stewart about the Dulin homicide;
Stewart denied involvement or knowledge. On March 29, Wagner completed an
affidavit or statement of probable cause, reciting what Kimberling said to implicate
Stewart at the March 27 interview. The statement did not report that she had
implicated Pethoud and Connelly, but not Stewart, at the initial interview. That day,
Selby filed murder charges against Stewart and Connelly based on the probable cause
statement; Stewart, in the middle of serving a two-week jail sentence for DWI, was
detained on the murder charge. Some weeks later, Kimberling testified at the
preliminary hearing. She did not testify at Stewart’s trial.

      Count I of Stewart’s Second Amended Complaint included the § 1983 claim
that Prosecutor Selby and Detective Wagner procured Kimberling’s fabricated
statements to create probable cause when none existed. Stewart’s Suggestions in
Opposition to defendants’ summary judgment motions argued this part of his claims
in Count I as a violation of his right to substantive due process. In denying
defendants’ motions for summary judgment, the district court concluded that
“Wagner’s reliance on the portions of Alicia Kimberling’s statements that
corroborated the theory of the case that Zack Stewart committed the murder, but

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ignored her contradictory statements without further investigation violated [Stewart’s]
due process rights.” On appeal, Selby argues the court erred in denying his motion
for summary judgment on this claim. “Whether a substantive due process right exists
is a question of law.” Moran v. Clarke, 296 F.3d 638, 643 (8th Cir. 2002) (en banc).

       Because the Supreme Court is “reluctant to expand the concept of substantive
due process,” it has held “that where a particular Amendment provides an explicit
textual source of constitutional protections against a particular sort of government
behavior, that Amendment, not the more generalized notion of substantive due
process, must be the guide for analyzing those claims.” County of Sacramento v.
Lewis, 523 U.S. 833, 842 (1998) (citations and quotation omitted). Therefore, a
§ 1983 plaintiff’s claim that he was arrested or prosecuted without probable cause,
even if labeled a claim of malicious prosecution, “must be judged” under the Fourth
Amendment, not substantive due process. Albright v. Oliver, 510 U.S. 266, 270-71
& n.4 (1994) (plurality opinion joined by seven Justices on this issue). We
recognized in Moran that additional considerations in a particular case may trigger
substantive due process protection, like the impact of “falsely-created evidence and
other defamatory actions” on a public employee plaintiff’s career, and the equal
protection interest in not being investigated or punished on account of race, that were
present in that case. 296 F.3d at 645. But here, Stewart was not a public employee,
race was not an issue, and the alleged fabricated evidence was only used in a probable
cause statement. Thus, the general rule in Oliver applies, and the district court
committed an error of law in not judging the actions of Selby and Wagner under the
Fourth Amendment.

      Stewart’s Suggestions in Opposition to summary judgment made only a cursory
reference to one Fourth Amendment precedent, Malley v. Briggs, 475 U.S. 334
(1986). He made no showing that the Fourth Amendment required Wagner to
disclose all of Kimberling’s statements in a probable cause statement, and no showing
that Wagner and Selby did not have arguable probable cause to arrest, the governing

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Fourth amendment standard. See New v. Denver, 787 F.3d 895, 899 (8th Cir. 2015).
“The evaluation of evidence to determine if probable cause exists is not an exact
science.” Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir.). cert. denied,
519 U.S. 867 (1996). Qualified immunity “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 (1991) (quotations omitted). We note that
the preliminary hearing at which Kimberling testified was nearly two months after
charges were filed based on Wagner’s probable cause statement. Stewart did not gain
pretrial release or dismissal of the charges at that hearing, which strongly suggests
that the presence of arguable probable cause was overwhelming.

       On this record, we conclude it was error to deny Prosecutor Selby qualified
immunity on this claim because Stewart failed to present sufficient evidence that
Wagner and Selby violated “clearly established [Fourth Amendment] rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18
(1982); cf. Morris v. Lanpher, 563 F.3d 399, 403 (8th Cir.), cert. denied, 558 U.S. 970
(2009). Given this conclusion, we need not consider Selby’s alternative argument
that he is entitled to absolute immunity from this claim.

                      III. The Sixth Amendment Claims.

       On the afternoon of March 30, Victor Parker and Coty Pollard, Stewart’s cell
mates, told Wagner they had information on the Dulin homicide but said they wanted
their lawyer present when they disclosed the information and a benefit in exchange
for providing it. Parker told Selby at a second interview on April 3 that Wagner told
him to “find out anything you can.” After being approached by Parker and Pollard,
Wagner questioned Stewart about his statements to his cellmates. Stewart said, “I
didn’t tell em nothin, I don’t know nothin. I need to speak with an attorney.” Wagner
then asked Selby if he could arrange for Parker and Pollard’s lawyer to be present
while they were questioned; Parker and Pollard were returned to their cell with

                                         -7-
Stewart. Between March 30 and April 3, Parker repeatedly questioned Stewart about
the Dulin homicide and encouraged Stewart to implicate himself in the murder,
despite Stewart’s insistence he was not involved.

        On April 3, Wagner and Selby interviewed Parker. During this interview,
Parker offered to question Stewart about the murder. Wagner said, “we can’t really
ask you to go back there and dig for anything, I would say if you do happen to hear
anything, I would really like to hear about it but I can’t ask you to go back there and
ask questions specifically.” Selby added, “if you do anything on law enforcement’s
behalf, [it’s] just as if the law enforcement was doing it themselves . . . . [O]n the
other hand, I don’t think there’s any obligation that just because he’s talking to you
that we have to move you out of there.” Selby told Parker he did not need to “put
[his] pillow over [his] ears if [Stewart] starts talking or anything.” Parker and Pollard
testified at Stewart’s trial and were, in Selby’s words, the “key witnesses.” See
Stewart, 313 S.W.3d at 665-66. Stewart’s only trial witness was his sister, Pethoud,
who testified that Stewart stayed overnight at her house on the night of the murder.
Id. at 664.

      Once the adversary judicial process has been initiated, the Sixth amendment
guarantees a defendant the right to have counsel present at all critical stages of the
criminal proceedings, including interrogation by the State. See United States v.
Gouveia, 467 U.S. 180, 187 (1984); Massiah v. United States, 377 U.S. 201, 204-05
(1964). In Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986), the Supreme Court stated
the applicable standard when the issue is whether trial testimony of a jailhouse
informant should be suppressed for violation of this principle:

      Since the Sixth Amendment is not violated whenever -- by luck or
      happenstance -- the State obtains incriminating statements from the
      accused after the right to counsel has attached, a defendant does not
      make out a violation of that right simply by showing that an informant,
      either through prior arrangement or voluntarily, reported his

                                          -8-
      incriminating statements to the police. Rather, the defendant must
      demonstrate that the police and their informant took some action,
      beyond merely listening, that was designed deliberately to elicit
      incriminating remarks.

(Quotations and citation omitted.) Applying this principle, we have held that, to
establish a Sixth Amendment violation warranting suppression of statements made
to a jailhouse informant, defendant must show (1) “his right to counsel had attached,”
(2) the informant “was a government agent,” and (3) the informant “deliberately
elicited incriminating statements from him.” Moore v. United States, 178 F.3d 994,
999 (8th Cir.), cert. denied, 528 U.S. 943 (1999).

       Stewart claims Wagner and Selby violated his Sixth and Fourteenth
Amendment right to counsel when they obtained a false confession “through the use
of jailhouse snitches Pollard and Parker as [their] agents.” The district court denied
Wagner and Selby qualified immunity from this claim because there exists “genuine
issues of material fact as to whether [they] violated Stewart’s Sixth Amendment right
to counsel by directing Parker to glean additional information from Stewart after he
had invoked his right to counsel, and by sending Parker and Pollard back into the
same cell with Stewart after he had invoked his right to counsel, thereby creating a
‘situation likely to induce’ [Stewart] to make incriminating statements.”

       If this were an appeal from the denial of a motion to suppress or exclude the
testimony of Parker and Pollard, or from the denial of a properly preserved federal
habeas claim, we might well agree there is sufficient evidence of a Sixth Amendment
violation under Kuhlmann to warrant a full trial of this claim. But this is the appeal
from the denial of qualified immunity from a § 1983 claim. Neither the district court
nor Stewart cited, and we have not found, a reported federal decision discussing the
elements of a § 1983 Sixth Amendment claim based on use of a jailhouse informant’s
testimony at trial, and the proper application of qualified immunity principles to such
a claim. The absence of such precedent is not dispositive but is clearly relevant.

                                         -9-
       Because qualified immunity protects all but the incompetent, and knowing
violators, “[w]e do not require a case directly on point before concluding [the § 1983
defendant violated] clearly established [law], but existing precedent must have placed
the statutory or constitutional question beyond debate.” Stanton v. Sims, 134 S. Ct.
3, 5 (2013), quoting Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011). Here, the
Supreme Court and Eighth Circuit cases most directly on point, Kuhlmann and
Moore, require Stewart to prove that Wagner and Selby took action “that was
designed deliberately to elicit incriminating remarks,” not merely listening, thereby
making Pollard and Parker government agents. “An informant becomes a government
agent for purposes of [the Sixth Amendment’s protection against deliberate
government elicitation] only when the informant has been instructed by the
[government] to get information about the particular defendant.” Moore, 178 F.3d
at 999 (quotation omitted). Here, according to Parker, Wagner told him to “find out
anything you can” a few hours after Selby filed charges against Stewart -- which
started the “adversary judicial process” for purposes of Massiah – but before Stewart
invoked his right to counsel for the first time after cooperating with investigators for
some four months.

       The following facts are undisputed: (i) Parker and Pollard came to Wagner the
afternoon of the day Stewart was first charged, offering to provide information that
Stewart had volunteered the night before, which turned out to be a confession that he
participated in the murder but lacking details; (ii) before that, Stewart had repeatedly
talked to Wagner about the murder without invoking his right to counsel; (iii)
according to Parker, Wagner told him to “find out anything you can” from Stewart;
(iv) Wagner immediately told Stewart that his cell mates said he had confessed, and
Stewart invoked his right to counsel; (v) when Wagner and Selby met with Parker and
Pollard a few days later, they instructed the informants to continue listening but not
to elicit statements from Stewart, because that would be “just as if the law
enforcement was doing it themselves;” (vi) they then put Pollard and Parker back in
Stewart’s cell.

                                         -10-
       Wagner and Selby testified they were aware of and believed their actions at the
April 3 interview did not violate Stewart’s Sixth Amendment rights. Even if Wagner
had encouraged Parker to be more than a “listening post” at the March 30 meeting (a
disputed issue of fact), Wagner immediately told Stewart that his cell mates were
reporting what he said, fair warning not to talk to them if he was invoking his right
to counsel. The judgment of Wagner and Selby on this issue may have been wrong,
but Kuhlmann and the earlier cases it applied create a very indistinct line between
aggressive use of jailhouse informants that does and does not violate the Sixth
Amendment rights of a defendant who has just been charged and invokes his right to
counsel. And there were no § 1983 precedents giving these defendants “fair and clear
warning of what the Constitution requires,” Al-Kidd, 131 S. Ct. at 2086-87
(quotations omitted), and therefore no “existing precedent [that] placed the statutory
or constitutional question beyond debate,” Stanton, 134 S. Ct. at 5. In such
circumstances, suppression, not § 1983 damage liability, is the appropriate remedy.
Cf. Hannon v. Sanner, 441 F.3d 635, 638 (8th Cir. 2006).

       There is another fundamental reason why Wagner and Selby deserve qualified
immunity from this § 1983 damage claim. Stewart failed to put in the summary
judgment record evidence of whether defense counsel at trial moved to suppress or
exclude testimony by Parker and Pollard because it was obtained in violation of the
Sixth Amendment; if so, how the trial court ruled; and whether the issue was then
pursued on direct appeal. If the motion was made and denied, that would at least
establish there was no clearly established violation of the Sixth Amendment. If the
motion was made and granted, the ruling would only have excluded testimony by
Parker and Pollard after they were effectively functioning as government agents; any
“confession” they heard before then would not be excluded, leaving Stewart unable
to prove § 1983 injury causation. If the motion was not made at all, then any injury
to Stewart from the trial testimony of Parker and Pollard was caused by the
supervening ineffective assistance of trial and/or appellate counsel. There is no



                                        -11-
constitutional tort without injury. Buckley v. Fitzsimmons, 20 F.3d 789, 796 (7th Cir.
1994).

      For these reasons, we conclude the district court erred in denying Wagner and
Selby qualified immunity from this Sixth Amendment damage claim, and we need not
consider Selby’s alternative absolute immunity contention.

       The order of the district court dated June 12, 2015, is reversed in part, and the
case is remanded for further proceedings not inconsistent with this opinion.
                        ______________________________




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