                                 _____________

                                  No. 95-2183
                                 _____________

Wesley Brayman, Debra Brayman,       *
                                             *
              Plaintiffs-Appellees,          *   Appeal from the United States
                                             *   District Court for the
     v.                                      *   Southern District of Iowa.
                                             *
United States of America,            *
                                     *
              Defendant,                 *
                                     *
Mark Shepherd,                               *
                                             *
              Defendant-Appellant.           *


                                 _____________

                      Submitted:     March 11, 1996

                              Filed: September 4, 1996
                                 _____________

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
                              _____________


PER CURIAM.

     Deputy United States Marshal Mark Shepherd appeals the district
court's partial denial of qualified immunity on three Bivens claims arising
out of his participation in the execution of a forfeiture warrant.               See
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971) (allowing cause of action against federal officers for violating
the Fourth Amendment).     We conclude that Shepherd was entitled to qualified
immunity on these claims.       Accordingly, we reverse the judgment of the
district court.
                                          I.


       Wesley and Debra Brayman were living on rented property that became
subject to a forfeiture order in May 1988.                 The forfeiture complaint
alleged that the owners of the property, Michael and Michelle Landon,
acquired it with the proceeds of unlawful drug transactions and that the
property was used to facilitate unlawful drug transactions, rendering it
subject to forfeiture under 21 U.S.C. § 881(a).            The district court entered
an order for a writ of monition on June 3, 1988, directing that the
property be seized and that notice be given to the owners of the property.


       Deputy Marshal Shepherd and several other law enforcement officers,
including a special agent of the FBI, executed the warrant of seizure and
monition for the property on June 21, 1988.           The FBI also had a separate
seizure warrant issued by a United States Magistrate Judge, for the same
property which was executed contemporaneously.              The officers were aware
that Wesley Brayman, a resident of the home, was a felon previously
convicted of a crime of violence.       The officers also knew that the property
was allegedly being used to facilitate drug trafficking crimes, "that the
house was alarmed[,] and that dogs were roaming the grounds."                  (App. at
92.)     However, the officers were also aware that this was a civil
forfeiture proceeding and that their purpose was to execute the warrants
and    conduct   an   inspection   of   the    property,   not   conduct   a   criminal
investigative search.


       When the officers arrived to execute the seizure warrants, they
knocked at the door and were initially denied entrance.                After waiting
several minutes and determining that the occupants were not going to allow
them in, the officers threatened to use force to open the locked door.
This prompted Debra Brayman to allow the officers into the house.




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     The officers served Debra Brayman with the warrants and inspected the
property.    Deputy Marshal Shepherd made a videotape of the inspection to
record the condition of the property in compliance with the United States
Department of Justice Seized Asset Management Handbook.          During the
inspection, the officers observed several firearms in an open master
bedroom closet containing men's clothes.    There is a dispute over who owns
the firearms and whether Debra consented to their seizure.     According to
Shepherd, Debra told him the firearms belong to her husband, Wesley
Brayman.     Debra's affidavit states that she owns the firearms, and she
denies making any statement that they belong to her husband.       Shepherd
claims that after they discovered the firearms, he contacted an Assistant
United States Attorney, who advised that they should give the guns to the
Bureau of Alcohol, Tobacco, and Firearms (BATF) if Debra would voluntarily
release them.    Shepherd claims that, with Debra's consent, he seized the
firearms and provided them to BATF agents.   Debra Brayman denies giving her
consent.


     The officers placed seizure notices on the property and presented
Debra Brayman with a document entitled "Stipulation of Occupancy," which
allowed the Braymans to remain on the seized property for a period of six
months after the seizure.   There is a dispute over the circumstances under
which Debra signed the agreement.        She claims she was forced to sign
because the officers told her she must either sign the agreement or be
evicted.     Shepherd says he advised her to consult her husband before
signing, and when Debra asked about the consequences of refusing to sign,
he told her he would have to advise the United States Attorney and
recommend that they institute proceedings to remove them from the property.


     By the end of June 1988, officers believed that the property had been
abandoned.   Shepherd's office received reports of cruelty to animals living
on the property, and during another inspection,




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he observed livestock loose on the property.                  On advice of the United
States Attorney, Shepherd reported the information concerning the welfare
of the animals to the local authorities.             Debra disputes the truth of this
report, insisting that her husband was taking good care of the livestock
and that the Animal Control Officer for Pottawattamie County could testify
to the good condition of the animals and the property.


      In July 1988, the Braymans filed a counterclaim in the forfeiture
action, alleging violations of the United States and Iowa constitutions.
Subsequently,    Wesley   Brayman       and       Michael   Landon     were   indicted     as
coconspirators in the distribution of cocaine, and Wesley Brayman pled
guilty.   Braymans' counterclaim was severed from the forfeiture action
(which is now closed) and became this separate case.                 Among other things,
the complaint alleged the following Bivens claims against Shepherd:                       The
law   enforcement   officers    entered       the    property   with     firearms   drawn,
unlawfully detained Debra, forced Debra to sign the occupancy agreement,
unlawfully searched and seized personal property, made false reports that
the   Braymans   were   being   cruel    to       their   livestock,    and   denied     them
preseizure notice and a hearing.


      Shepherd sought summary judgment on the ground that he is entitled
to qualified immunity from suit.        The district court granted his motion in
part, determining that Shepherd was entitled to qualified immunity for his
actions of entering the home, for conducting a videotaped structural
inventory, for all allegations regarding the unlawful entry and search of
the premises and the unlawful detention of Debra Brayman, and for using the
threat of force to open the door where he reasonably feared the residents
could be arming themselves.     The court concluded that none of these actions
violated a clearly established constitutional right.                   The district court
also granted Shepherd qualified immunity on the Braymans' due process
claim, concluding that no preseizure notice




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or hearing requirements existed at the time Shepherd executed the seizure
warrant.


     The district court denied Shepherd's motion in part as well.              The
court denied qualified immunity on the claims that he illegally seized the
firearms, that Debra Brayman was forced to sign the occupancy agreement,
and that Shepherd made false reports that the Braymans were treating their
livestock cruelly.   On each of these claims, the district court found that
conflicting evidence prevented the grant of qualified immunity.         Shepherd
appeals the district court's partial denial of qualified immunity.


                                      II.


     We first consider our jurisdiction to decide this appeal.           Subject
to certain statutory exceptions, our jurisdiction extends only to "final
decisions" rendered by a district court.     28 U.S.C. § 1291 (1988); Johnson
v. Jones, 115 S. Ct. 2151, 2154 (1995).      The Supreme Court has long held
that orders collateral to and separable from the rights asserted in the
action are immediately appealable as final decisions under § 1291.           Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).       The Court has
further held that "a district court's order denying a defendant's motion
for summary judgment was an immediately appealable `collateral order'
(i.e., a `final decision') under Cohen, where (1) the defendant was a
public official asserting a defense of `qualified immunity,' and (2) the
issue appealed concerned, not which facts the parties might be able to
prove, but, rather, whether or not certain given facts showed a violation
of `clearly established' law."        Johnson, 115 S. Ct. at 2155 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)).


     Citing   Johnson   v.   Jones,   the   Braymans   contend   that   we    lack
jurisdiction over this appeal.   In Johnson, the Supreme Court held that "a
defendant, entitled to invoke a qualified-immunity defense, may not appeal
a district court's summary judgment order insofar as




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that order determines whether or not the pretrial record sets forth a
`genuine' issue of fact for trial."       115 S. Ct. at 2159.     The Court
stressed that appellate review of the qualified immunity issue is limited
to the purely legal question of "`whether the facts alleged (by the
plaintiff, or, in some cases, the defendant) support a claim of violation
of clearly established law.'"   Id.   at 2156 (quoting Mitchell v. Forsyth,
472 U.S. at 528 n.9).    Because the trial court denied qualified immunity
in this case on the basis that a dispute of material fact existed, and not
on the question of clearly established law, the Braymans contend the appeal
is without jurisdiction.


       We conclude that the Braymans read the holding of Johnson too
broadly.   The Supreme Court recently clarified the scope of Johnson.    See
Behrens v. Pelletier, 116 S. Ct. 834 (1996).      In Behrens, the appellee
asserted, among other things, the same argument asserted by the Braymans:
the appeal is without jurisdiction because the denial of qualified immunity
rested on the ground that material issues of fact remain.     116 S. Ct. at
842.   The Court rejected the argument, explaining as follows:


       Every denial of summary judgment ultimately rests upon a
       determination that there are controverted issues of material
       fact, see Fed. Rule Civ. Proc. 56, and Johnson surely does not
       mean that every denial of summary judgment is nonappealable.
       Johnson held simply, that determinations of evidentiary
       sufficiency at summary judgment are not immediately appealable
       merely because they happen to arise in a qualified immunity
       case . . . .

             Here, the District Court's denial of petitioner's summary
       judgment motion necessarily determined that certain conduct
       attributed to petitioner (which was controverted) constituted
       a violation of clearly established law.        Johnson permits
       petitioner to claim on appeal that all of the conduct which the
       District Court deemed sufficiently supported for purposes of
       summary judgment met the Harlow standard of "objective legal
       reasonableness."




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Id. at 842.


     In the present case, the district court determined that material
issues of fact remain concerning the three claims for which qualified
immunity was denied.     However, the district court did so without first
expressly considering whether these claims, as alleged, support a violation
of clearly established law.     See Siegert v. Gilley, 500 U.S. 226, 231
(1991) (holding that the first inquiry in a proper qualified immunity
analysis is whether the plaintiff alleged the violation of a clearly
established constitutional right).    We conclude that we have jurisdiction
to consider this question of law with regard to each claim.


                                     III.


     Government officials are entitled to qualified immunity from civil
liability unless their actions violated "clearly established statutory or
constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).   See also Prosser v. Ross,
70 F.3d 1005, 1007 (8th Cir. 1995); Reece v. Groose, 60 F.3d 487, 491 (8th
Cir. 1995).   "The contours of the right must be clearly established in a
particularized sense:    `The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing
violates that right.'"     Prosser, 70 F.3d at 1007 (quoting Anderson v.
Creighton, 483 U.S. 635, 639 (1987)).       "We review de novo the district
court's denial of qualified immunity at summary judgment."     Henderson v.
Baird, 29 F.3d 464, 467 (8th Cir. 1994), cert. denied, 115 S. Ct. 2584
(1995).


     The district court determined that Shepherd was not entitled to
qualified immunity on the Braymans' claim that he unreasonably seized
firearms during the inventory, because there existed a material dispute of
fact concerning whether Debra Brayman consented to the seizure.          We
conclude that this factual dispute is




                                      7
immaterial to the legal determination of whether the Braymans have alleged
the violation of a clearly established right.    Even assuming Debra did not
consent to the seizure, the remaining undisputed facts demonstrate that
Shepherd did not violate a clearly established constitutional or statutory
right, because his actions were justified by the plain view doctrine.



     The Fourth Amendment to the United States Constitution provides a
right to be free from unreasonable searches and seizures, a right that
"generally -- though not always -- translates into a warrant requirement."
United States v. Hatten, 68 F.3d 257, 260 (8th Cir. 1995), cert. denied,
116 S. Ct. 1026 (1996).     One exception to the warrant requirement is the
plain view doctrine, which permits law enforcement officers to seize
objects in plain view if (1) "the officer did not violate the Fourth
Amendment in arriving at the place from which the evidence could be plainly
viewed," (2) the evidence was in plain view and "its incriminating
character [was] immediately apparent," and (3) the officer had a "lawful
right of access to the object itself."    Horton v. California, 496 U.S. 128,
136-37 (1990).   See also Hatten, 28 F.3d at 260.


     Shepherd's seizure of the firearms satisfies all three requirements
of the plain view doctrine.   First, he did not violate the Fourth Amendment
by his presence inside the Braymans' home.   Shepherd was present to execute
a lawful seizure warrant, which required him to inventory the property.
The district court properly concluded that Shepherd's conduct of entering
and searching the premises was objectively reasonable and did not violate
clearly established law.


     Second, for the object's incriminating character to be immediately
apparent, "the officers must have `probable cause to associate the property
with criminal activity.'"     Hatten, 68 F.3d at 261 (quoting United States
v. Garner, 907 F.2d 60, 62 (8th Cir.




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1990), cert. denied, 498 U.S. 1068 (1991)).       This was the home of Wesley
Brayman, known by the officers to be a convicted felon.    The firearms were
plainly observed through the open door of the master bedroom closet
containing men's clothing.   These undisputed facts provided the officers
with probable cause to believe that the firearms were the object of a
crime, because either actual or constructive possession of a firearm by a
felon is a violation of 18 U.S.C. § 922(g).   See United States v. Koskela,
86 F.3d 122, 127 (8th Cir. 1996) (holding that circumstantial evidence
supported a finding of constructive or joint possession sufficient to
sustain a § 922(g) conviction); United States v. Boykin, 986 F.2d 270, 274
(8th Cir.), cert. denied, 510 U.S. 888 (1993) (stating that "[c]onstructive
possession of the firearm is established if the person has dominion over
the premises where the firearm is located").       It is also a violation of
Iowa law for a felon to have dominion and control of a firearm.    Iowa Code
Ann. § 724.26 (West 1993).   See State v. Miles, 490 N.W.2d 798, 800 (Iowa
1992) (holding that a jury question was presented where a firearm was found
in the defendant's truck).   Because ownership is not an element of these
crimes, a dispute over ownership does not create a question of material
fact to prevent application of the plain view doctrine.       The undisputed
circumstances demonstrate that the incriminating character of the firearms
was immediately apparent.


     Third, the inspection did not exceed the scope of what was necessary
to execute the lawful warrant.    (See App. at 183 (the FBI seizure warrant
expressly required an inventory of the property).)       It was necessary to
inspect the structural integrity of the property, both inside and outside,
and the officers were required to take accurate photographs of the interior
and exterior of the property.    (App. at 161.)    The inspection of bedrooms
and open closets was well within the scope of the warrant.       The officers
did not open any closet doors, drawers, or closed containers.      Therefore,
on the undisputed facts, the officers had lawful right of access to the
firearms.   See United States v. Hughes, 940 F.2d




                                      9
1125, 1127 (8th Cir.), cert. denied, 502 U.S. 896 (1991).              "Because the
warrant authorized the officers' search of the places they found the gun[s]
.    . . and the plain view doctrine authorized the seizure of these
incriminating     objects,"   id.,   the    Braymans'   allegation   that     Shepherd
unlawfully seized the firearms does not state a violation of a clearly
established constitutional right.


                                           IV.


       The district court also determined that Shepherd was not entitled to
qualified immunity because issues of fact existed concerning whether Debra
Brayman was forced to sign the occupancy agreement and whether Shepherd
filed false reports of animal cruelty with local authorities.               Again, we
conclude that these claims do not allege the violation of a clearly
established constitutional right.          The property was forfeitable pursuant
to 21 U.S.C. § 881(a) and lawfully seized by the government, so the
Braymans    had   no   constitutional   right    to   continued   occupancy    of   the
property.   In this circumstance, a threat of eviction as alleged by Debra
Brayman does not state the violation of a clearly established right.
Furthermore, it is well established that defamation or injury to reputation
by itself does not state a constitutional deprivation.             See Siegert, 500
U.S. at 233-34; Paul v. Davis, 424 U.S. 693, 708-12 (1976); Nelson v. City
of   McGehee, 876 F.2d 56, 58 (8th Cir. 1989).               Thus, the Braymans'
allegation that Shepherd made false reports to local authorities does not,
without some indication of a due process violation, state the violation of
a clearly established constitutional right.


                                           V.


       We conclude that because the Braymans failed to allege a violation
of a clearly established constitutional right, Shepherd is entitled to
qualified immunity on all of their Bivens claims.




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Accordingly, we reverse the district court's partial denial of Shepherd's
motion for summary judgment.   We remand the case to the district court for
the entry of an order dismissing with prejudice all of the Braymans' Bivens
claims against Deputy Shepherd.


     A true copy.


           Attest:


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




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