                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3053
                                   ___________

Jami Neco Schmidt,                      *
                                        *
      Plaintiff - Appellant,            *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the Eastern
City of Bella Villa; Edward Locke, Jr., * District of Missouri
Chief of Police, in his individual      *
capacity,                               *
                                        *
      Defendants - Appellees.           *
                                   ___________

                             Submitted: April 14, 2008
                                Filed: March 2, 2009 (corrected 3/18/09)
                                 ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MELLOY, Circuit Judges.
                              ___________

JOHN R. GIBSON, Circuit Judge.

      Jami Neco Schmidt filed this claim for damages under 42 U.S.C. § 1983 and
Missouri’s strip search law, Mo. Rev. Stat. § 544.193. She brought claims against the
City of Bella Villa, Missouri, and Chief of Police Edward Locke, Jr. in connection
with the alleged post-arrest photographing of her tattoo. She appeals from the district
court’s1 entry of summary judgment on each of her claims and from two evidentiary
decisions. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I.

       On June 3, 2005, Jami Neco Schmidt, a 20-year-old woman, was riding in a
vehicle driven by Sarah McVey. Police Chief Edward Locke, Jr. stopped the vehicle
after McVey committed several moving violations. During the stop, Locke smelled
alcohol and observed at least two open cans of beer in the car. Locke asked the
passengers, including Schmidt, for identification.

       Schmidt gave a false name, “Samantha Smith,” and a false date of birth and
social security number. When Locke attempted to run the passengers’ identifying
information through his computer, he learned that the information Schmidt had given
was false. Schmidt also failed field sobriety tests. Locke arrested Schmidt for making
a false declaration and for being a minor in possession of alcohol. Locke issued a
citation to McVey, the driver, but did not arrest her or any of the other passengers in
the car. Locke then transported Schmidt to the Bella Villa police station. Schmidt
does not contest the propriety of her arrest.

       At the police station, Locke interviewed Schmidt regarding her identity. This
process included the completion of a booking sheet with information about the arrest
and Schmidt’s identification. The booking sheet included a section for listing
“scars/marks/tattoos/deformities.” In response to Locke’s inquiry about whether she
had any scars, marks, tattoos or deformities, Schmidt indicated that she had a butterfly
tattoo. The tattoo is approximately two inches long and is located approximately two


      1
       The Honorable Stephen N. Limbaugh, Sr., United States District Judge for the
Eastern District of Missouri, now retired.

                                          -2-
inches from Schmidt’s hipbone. The tattoo was hidden by her clothing at the time of
her booking.

       The following facts are in dispute, but for the purposes of reviewing a motion
for summary judgment, we will recite the facts in the manner most favorable to
Schmidt, the nonmoving party. O’Brien v. Dep’t of Agriculture, 532 F.3d 805, 808
(8th Cir. 2008). After Schmidt described her tattoo to Locke, he requested that she
take a picture of the tattoo. When she asked why he needed a picture, he told her that
it was for identification purposes. Locke provided Schmidt with a Polaroid camera
and asked her to go into the bathroom to take a picture of the tattoo. When she
returned with a photograph of her tattoo, Locke examined the picture and stated that
it was not good enough. Locke indicated that he would need to take a better picture.
Pursuant to Locke’s request, Schmidt unbuttoned her jeans partway and folded them
inwards to permit him to take a photograph. He again rejected this photograph as
being incomplete or otherwise unacceptable. To permit Locke to take an acceptable
photograph, Schmidt further unbuttoned her jeans and folded them inwards again.
Locke took a second photograph, which he apparently found to be acceptable.
Schmidt was later released on her own recognizance.

       In her brief to this court, Schmidt alleges that Locke used harassing and/or
threatening language toward her during her time in custody. However, these
allegations were not before the district court in response to the motion for summary
judgment. See Holland v. Sam’s Club, 487 F.3d 641, 644 (8th Cir. 2007).

        Schmidt alleged multiple claims based on the incident of photographing her
tattoo. She brought claims under 42 U.S.C. § 1983 that Locke violated her Fourth and
Fourteenth Amendment rights. She additionally alleges four theories of municipal
liability. Finally, she brought tort claims against the City and Locke under Missouri’s
strip search law, Mo. Rev. Stat. § 544.193.



                                         -3-
      After discovery, the district court granted a motion to strike Schmidt’s expert
witness, St. Louis Police Officer, Lieutenant Anthony Russo. After her deposition,
Schmidt also filed a photographic exhibit allegedly depicting her tattoo. The district
court also granted a motion to strike the exhibit. Finally, City and Locke filed a
motion for summary judgment on all of Schmidt’s claims. In response, Schmidt
conceded several, and the court granted summary judgment on the remaining claims.2
Schmidt appeals these rulings, which we affirm.3

                             II. Evidentiary Issues.
                      A. Exclusion of Photographic Exhibit.

      Schmidt appeals from the district court’s exclusion of a photographic exhibit
she submitted to show the location of her tattoo and the position of her clothing when
Chief Locke took his photos.4 City and Locke urge us to uphold the district court’s
order striking the exhibit on the basis that there was insufficient foundation to

      2
       Schmidt opposed summary judgment on the following claims:
      Count 1: Section 1983 Claim for violation of the Fourth and Fourteenth
      Amendments against Locke;
      Count 2: Section 1983 claim for violation of the Fourth and Fourteenth
      Amendments against City of Bella Villa on the basis that Locke is a
      policy maker or, alternatively, on the basis of City’s failure to train,
      supervise and control Locke;
      Count 4: State tort claim for violation of Mo. Rev. Stat. § 544.193
      against Locke only.
      3
        After oral argument, Schmidt submitted a motion to supplement the record
with deposition testimony confirming that the Polaroid camera used to take the
photographs exists. Because City and Locke admit that photographs were taken with
the Polaroid camera, we deny the motion because the relief it seeks is unnecessary
given our disposition.
      4
        The photograph submitted by Schmidt was taken in or around January 2007
for the purpose of this lawsuit.

                                         -4-
establish the authenticity of the photograph. See Fed.R.Evid. 901. We review the
district court’s order for abuse of discretion and accord the district court’s evidentiary
decisions substantial deference. Watson v. O’Neill, 365 F.3d 609, 615 (8th Cir.
2004). “[W]e may not reverse unless the district court erred and the error affected the
substantial rights of the appellant.” Green v. City of St. Louis, 507 F.3d 662, 669 (8th
Cir. 2007) (citing Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 356 F.3d 850,
857 (8th Cir. 2004)).

       In order to be admissible, a photograph must be shown to be an accurate
representation of the thing depicted as it appeared at the relevant time. See United
States v. Stierwalt, 16 F.3d 282, 286 (8th Cir. 1994). Schmidt contends that the
photographic exhibit accurately depicts her tattoo and, thus, should be admitted.
However, Schmidt’s argument shows that her purpose is not to show the condition and
location of the tattoo on the date it was photographed in her attorney’s office. Rather,
Schmidt submits the exhibit for the purpose of showing not only the tattoo, but the
location of her clothing and her state of undress in the station photographs. We
evaluate the authenticity of the exhibit in that context.

       The district court found that the legal secretary to Schmidt’s counsel, who
provided the affidavit accompanying the exhibit, had no personal knowledge of
whether the tattoo depicted in the photograph was in the same location and condition
on June 3, 2005, as depicted in the station photographs. Further, the district court was
troubled by the discrepancy between allegations in Schmidt’s complaint and her
deposition testimony that raise questions about whether the photographic exhibit is an
accurate representation of the location of Schmidt’s clothing at the time of her arrest.
In the exhibit, Schmidt’s jeans are unzipped and folded outward to display her tattoo.
As the court noted, Schmidt alleged in her complaint that she “unbuttoned” her jeans
and “cropped” them inward to permit Locke to take the photographs. Thus, the jeans
worn in the exhibit are not the same jeans worn by Schmidt during the photographing,



                                           -5-
nor are they arranged in the same manner. We find no abuse of discretion in the
district court’s decision to strike the photographic exhibit for lack of foundation.

       Even if we were to determine that the photographic exhibit was admissible for
the limited purpose of showing the location and condition of Schmidt’s tattoo, we
could not conclude that the error affected Schmidt’s substantial rights. Although there
is a semantic disagreement regarding what to call the location of the tattoo, it is
undisputed that the tattoo is located two inches from Schmidt’s hipbone on her lower
abdomen. Schmidt admits as much in her brief to this court: “Appellant asserts that
even without the photo[,] her testimony in her deposition was sufficient to establish
the location of the tattoo.” We affirm the district court’s decision to exclude the
photographic evidence.

                         B. Exclusion of Expert Testimony.

       Schmidt appeals the district court’s order striking the designation of St. Louis
Police Lieutenant Anthony Russo as an expert witness. Schmidt argues that Russo’s
testimony on police practices–including decisions to arrest, decisions to search for
arrest warrants, evidence collection procedures, strip-search procedures, and general
police policies–is admissible under Federal Rule of Evidence 702. Schmidt also
contends that the district court improperly excluded Russo’s testimony because he is
not an academic.

       The district court excluded Russo’s testimony after concluding that it was not
sufficiently relevant or reliable under the test articulated in Daubert v. Merrill Dow




                                         -6-
Pharmaceutical, Inc., 509 U.S. 579 (1993), which enunciates the role of the trial judge
under Rule 702. Rule 702, which governs the introduction of expert testimony, states:

      If scientific, technical, or other specialized knowledge will assist the trier
      of fact to understand the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill, experience, training,
      or education, may testify thereto in the form of an opinion or otherwise,
      if (1) the testimony is based upon sufficient facts or data, (2) the
      testimony is the product of reliable principles and methods, and (3) the
      witness has applied the principles and methods reliably to the facts of the
      case.

The trial judge is first charged with determining whether the witness is qualified to
offer expert testimony. Daubert, 509 U.S. at 589; Fed.R.Evid. 702. Additionally,
Daubert charges the district court as follows: “[U]nder the Rules the trial judge must
ensure that any and all scientific testimony or evidence admitted is not only relevant,
but reliable.” 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137,
142 (1999) (non-scientific expert testimony). We review the district court’s decision
to exclude expert testimony under an abuse of discretion standard. See Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 143 (1997). We will not reverse the district court unless the
district court abused its discretion and its ruling had a substantial influence on the
outcome. See Green v. City of St. Louis, 507 F.3d 662, 669 (8th Cir. 2007).

        The district court issued a thorough order regarding Russo's expert testimony.
First, the district court found that a number of the opinions offered by Russo were
improper legal conclusions regarding the reasonableness of conduct in light of Fourth
Amendment standards. Schmidt concedes that some of the conclusions drawn in the
expert report were improper legal conclusions, but asks that Russo be permitted to
testify regarding police procedures. Schmidt, however, does not specify which of
Russo's opinions are proper and which are not. The district court found that Russo's
expert opinions regarding the reasonableness of the evidence collection and strip
search procedures were impermissible legal conclusions. Russo's report consisted of

                                           -7-
his opinions regarding the overall reasonableness of the procedures used and, as such,
were not fact-based opinions. See Peterson v. City of Plymouth, 60 F.3d 469, 475
(8th Cir. 1995) (expert testimony on reasonableness of police behavior in light of
Fourth Amendment standards is statement of legal conclusions and not admissible).
In addition, Russo's report is devoid of any standards and explanations that would
assist the trier of fact in contextualizing his opinions. See United States v. Ellsworth,
738 F.2d 333, 336 (8th Cir. 1984) (expert’s “conclusory statement” properly excluded
for lack of foundation). Accordingly, we cannot say that the district court abused its
discretion by refusing to admit Russo's testimony regarding the reasonableness of
police procedures.

       The district court also found that the proffered expert testimony regarding
Locke’s decision to arrest Schmidt, his decision not to arrest McVey or any of the
other passengers, and the lack of printed policy manuals for the Bella Villa Police
Department was not relevant to any issue in the case. Schmidt argues that the
testimony regarding the decisions to arrest are relevant to the “totality of the
circumstances,” which are used to evaluate her Fourth Amendment § 1983 claim. See
Tennessee v. Garner, 471 U.S. 1, 8-9 (1985). Garner, on which Schmidt relies, is
inapposite; it examines the totality of the circumstances as they existed at the time of
a search to determine whether the search was reasonable. Id. Schmidt seeks instead
to have admitted an opinion as to circumstances that existed at the time of her arrest,
which she does not challenge and which are not relevant to whether the subsequent
search was reasonable. Whether Schmidt was arrested outside the Bella Villa city
limits or whether Locke should have reasonably believed McVey to be intoxicated is
not relevant to Schmidt’s claim: that photographing her tattoo violated her rights.
Thus, it was not an abuse of discretion to exclude this testimony.

      We do conclude that the district court should not have excluded the testimony
regarding the existence of policy manuals on the basis of relevance because it is
relevant to the issue of municipal liability. This error does not have a substantial

                                          -8-
influence on the outcome of this case, though, because we do not reach the question
of municipal liability. See infra. Thus, we affirm the district court.

       Finally, the district court found that Russo was not qualified to offer testimony
regarding strip-search procedures, Locke’s motivations, or the psychological impact
of custody on arrestees. Schmidt argues that the district court improperly assumed
that Russo was not qualified because he was not an academic or administrator. Police
officers may be qualified by their experience to testify as expert witnesses. See
United States v. Boykin, 986 F.2d 270, 275 (8th Cir. 1993). However, for an expert
witness to be qualified based on experience, that experience must bear a close
relationship to the expert’s opinion. Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47
F.3d 277, 283-84 (8th Cir. 1995). The district court concluded that there was not a
close fit between Russo's experiences and the subjects on which his testimony was
offered. Russo has experience working as a traffic patrolman, a watch commander,
and in organizing security operations for public events. As noted by the district court,
there was no evidence that Russo had any experience with civil rights violations or
with strip searches. Additionally, there was no evidence that Russo had any work
experience pertinent to psychology. The district court's finding was not an abuse of
discretion.

      The district court fully considered Russo’s expert testimony under the rubric of
Rule 702 and Daubert. The court did not abuse its discretion by striking the expert
designation of Russo.

                              III. Section 1983 Claims.

      Schmidt appeals the entry of summary judgment on her § 1983 claims in favor
of Locke and the City of Bella Villa. We review a grant of summary judgment de
novo, viewing the facts in the light most favorable to the nonmoving party. Green v.
City of St. Louis, 507 F.3d 662, 666 (8th Cir. 2007). Summary judgment is only

                                          -9-
appropriate if the record shows “that there [is] no genuine issue of material fact and
that the defendants [are] entitled to judgment as a matter of law.” Id. However,
summary judgment will not be reversed on the basis of speculation, conjecture, or
fantasy. Putman v. Unity Health Sys., Inc., 348 F.3d 732, 733-34 (8th Cir. 2003).

       The essential elements of a §1983 claim are (1) that the defendant(s) acted
under color of state law, and (2) that the alleged wrongful conduct deprived the
plaintiff of a constitutionally protected federal right. DuBose v. Kelly, 187 F.3d 999,
1002 (8th Cir. 1999). The parties focus primarily on the second element of the claim.
We assume that there is at least a genuine issue of material fact regarding the first
element, that Locke acted under color of state law. See Haberthur v. City of Raymore,
119 F.3d 720, 722, 724 (8th Cir. 1997) (finding that police officer acted under color
of state law when “on duty and in uniform during the incidents, carrying a gun, and
driving a police vehicle”). To satisfy the second element, Schmidt advances two
theories of constitutional violation: a Fourth Amendment search and seizure violation
and a Fourteenth Amendment substantive due process violation.

                     A. Fourth Amendment Search and Seizure.

      Schmidt first argues that photographing her tattoo was equivalent to a strip
search and was thus an unreasonable search because Locke lacked reasonable
suspicion that she possessed a concealed weapon or contraband. Schmidt relies on
several Second Circuit cases that establish a per se requirement of individualized
suspicion to justify a strip search of a misdemeanor arrestee. See Hartline v. Gallo,
546 F.3d 95, 100 (2d Cir. 2008); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986). Those
searches, however, were much more intrusive than the search here. See Hartline, 546
F.3d at 98 (“Donovan required Hartline first to remove all of her lower garments and
bend over while Donovan made a visual inspection of her orifices, and then to remove
her upper garments and lift her bra.”); Weber, 804 F.2d at 799 (“. . . Mrs. Weber was
required to remove all her clothing and to expose her body cavities for visual

                                         -10-
inspection.”). As we explained in Smook v. Minnehaha Co., 457 F.3d 806, 812 (8th
Cir. 2006), cert. denied 549 U.S. 1317 (2007), “strip searches requiring a person to
disrobe completely have a <uniquely invasive and upsetting nature.’” The search that
Schmidt was subjected to is not a strip search within the meaning of those cases. See
id.; see also United States v. McKissick, 204 F.3d 1282, 1297 n.6 (10th Cir. 2000)
(rejecting the contention that a search was transformed into a strip search when a
police officer unzipped the defendant’s pants); United States v. Palmer, 575 F.2d 721,
723 (9th Cir. 1978) (search requiring a woman to lift her skirts and reveal an
undergarment was not a full strip search “and require[d] less justification to render it
reasonable”).

        Rather than triggering a per se rule, the search in this case requires balancing
the factors set out in Bell v. Wolfish, 441 U.S. 520 (1979). See Richmond v. City of
Brooklyn Ctr., 490 F.3d 1002, 1006 (8th Cir. 2007) (applying Bell factors in absence
of per se rule); Smook, 457 F.3d at 810 (same); see also Stanley v. Henson, 337 F.3d
961, 964 (7th Cir. 2003) (applying Bell factors to uphold a clothing exchange practice
that required a woman remove her outer clothing and expose her bare breasts since she
was not wearing a bra). Under Bell, courts must consider (1) the justification for
initiating the search, (2) the scope of the particular intrusion, (3) the place in which
the search is conducted, and (4) the manner in which it is conducted. 441 U.S. at 559.
These factors are used to balance the need for a particular search with the rights of the
individual being searched. Id.

       First we look to the justification for the search. Suspicion that weapons or
contraband will be discovered is not the only acceptable justification for a search.
There are legitimate law-enforcement purposes served by photographing the tattoos
of an arrestee for use in identification. See United States v. Blasingame, 219 Fed.
Appx. 934, 944-46 (11th Cir.) (affirming introduction of photograph of defendant’s
torso taken after arrest to document tattoo and other identifying marks), cert. denied
128 S. Ct. 320 (2007); see also Johnson v. Florell, No. 05-159, 2006 WL 3392784, at

                                          -11-
*5 (D.Minn. Oct. 19, 2006) (finding “no inherent constitutional violation in lifting a
tee shirt or holding up shirt sleeves to photograph tattoos” for identification purposes),
aff’d, 292 Fed. Appx. 523 (8th Cir. 2008). While the photographing in this case was
arguably more intrusive, as it required Schmidt to unzip her pants, we do not believe
that this distinction is sufficient to render the search a violation of the Fourth
Amendment. In this case, Schmidt admits that Locke told her that the photograph of
her tattoo was needed for identification purposes. Schmidt had provided false
identification information, including a false name, date of birth, and social security
number. Under the circumstances, Locke was justified in photographing Schmidt’s
tattoo as an identifying mark.

       We must also consider the scope of the intrusion. Given the location of the
tattoo, Locke required Schmidt to be no more exposed than necessary to permit
photographing the tattoo, which minimized the invasion of Schmidt’s privacy. The
location of the search is also relevant. As Schmidt acknowledges in her brief, the
photograph was taken in private, which limited the seriousness of the intrusion.5 Pace
v. City of Des Moines, 201 F.3d 1050 (8th Cir. 2000), on which Schmidt relies, is
distinguishable. The argument in Pace centered around whether a Terry6 stop was
unreasonably delayed when police ordered Pace to remove his shirt in public in order
to photograph his tattoo. Id. at 1053-54. By contrast, the photographing of Schmidt’s
tattoo occurred in private after she was already in police custody.




      5
           In her brief, Schmidt argues that the privacy of the booking area increased her
“fear and humiliation.” Despite her subjective experience, there is no Fourth
Amendment precedent for the contention that privacy enhances the invasion; the law
is to the contrary. See Richmond, 490 F.3d at 1008 (“The law . . . [is] clear that strip
searches should be conducted in an area as removed from the public view as possible
. . . .”).
      6
       Terry v. Ohio, 392 U.S. 1 (1968).

                                          -12-
       Finally, we consider the manner in which the search was conducted. It is a
closer question whether it was substantively reasonable for Locke to photograph
Schmidt’s tattoo himself, rather than enlisting a female officer to do so. See, e.g.,
Richmond, 490 F.3d at 1008. However, a female officer would be required only if
Schmidt were subjected to a strip search for Fourth Amendment purposes. As
discussed above, Schmidt was not subjected to the uniquely intrusive requirement that
she disrobe completely. See Smook, 457 F.3d at 811 (plaintiff stripped only to her
underwear; search was less invasive than if she were completely nude). Accordingly,
Locke’s photographing the tattoo himself does not make the search unreasonable.
Schmidt vaguely alleges that Locke’s manner was harassing or hovering, which would
be relevant to the manner in which the search was conducted. See Richmond, 490
F.3d at 1008. However, this allegation was not supported by any competent evidence
in opposition to summary judgment.7 In her brief to the district court, Schmidt argued
that Locke’s purpose was revealed by his failure to run her record under her true
name. This is the kind of speculation that, without more, will not suffice to defeat
summary judgment. See Putman v. Unity Health Sys., Inc., 348 F.3d 732, 733-34 (8th
Cir. 2003); Embry v. Lewis, 215 F.3d 884, 889 (8th Cir. 2000).

    We affirm the district court’s entry of summary judgment on Schmidt’s Fourth
Amendment claims.




      7
       Nor was Schmidt’s allegation on appeal–that Locke attempted to coerce her to
disrobe completely–presented to the district court in opposition to summary judgment.
Thus, we do not consider it on appeal. See Holland v. Sam’s Club, 487 F.3d 641, 644
(8th Cir. 2007) (“nonmoving party must designate the specific genuine issues of
material fact that preclude summary judgment”; arguments waived in the district court
may not be considered on appeal).

                                        -13-
                B. Fourteenth Amendment Substantive Due Process.

     Schmidt also argues that Locke’s conduct violated her substantive due process
rights. The Eighth Circuit has recognized a substantive due process violation in some
instances of sexual misconduct by police officers. See Rogers v. City of Little Rock,
152 F.3d 790 (8th Cir. 1998). The standard for evaluating a substantive due process
claim is whether the alleged “behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at
797 (internal citation omitted).

       Schmidt cites a line of police officer sexual assault cases, in which sexual
assault was held to be legally sufficient to establish a violation of substantive due
process. See, e.g., Rogers, 152 F.3d at 797 (rape by uniformed police officer);
Hawkins v. Holloway, 316 F.3d 777, 785 (8th Cir. 2003) (“repeated intentional
touching of . . . breasts”); Haberthur v. City of Raymore, 119 F.3d 720, 724 (8th Cir.
1997) (fondling woman’s breast under her clothing, caressing her body, and “making
sexually suggestive remarks”). She asserts that her case is “somewhat similar” and
that this court should find that “these events do <shock the contemporary conscience.’”
However, Schmidt does not allege that she was sexually assaulted, nor does she
explain how the cited cases apply to the facts that she has alleged. The district court
stated that “[t]here is absolutely no allegation that defendant Locke touched plaintiff,
performed any type of sexual act upon plaintiff, or physically invaded plaintiff’s
bodily integrity in any manner.” Schmidt does not point to any evidence that the
district court overlooked, nor does she point to any case law to support the contention
that conduct similar to that which she has alleged violates due process.

       Since we find no constitutional violation, we need not address the issues of
qualified immunity and municipal liability.




                                         -14-
                          IV. Missouri Strip Search Claim.

       Finally, Schmidt appeals the entry of summary judgment on her tort claim under
Missouri’s strip search law, Mo. Rev. Stat. § 544.193, against Locke.8 We review the
district court’s grant of summary judgment de novo. Fed. R. Civ. P. 56(c); Green v.
City of St. Louis, 507 F.3d 662, 666 (8th Cir. 2007). Summary judgment is
appropriate if, viewing the evidence in the light most favorable to the nonmoving
party, there is no genuine issue of material fact. Porter v. Williams, 436 F.3d 917,
920-21 (8th Cir. 2006). We also review the district court’s interpretation of state law
de novo. Gamradt v. Fed. Labs., Inc., 380 F.3d 416, 419 (8th Cir. 2004).

       Section 544.193.2 prohibits strip searches of persons arrested for traffic
offenses and non-felony offenses except in limited circumstances, which neither party
argues were present in this case. Section 544.193.3 also requires that any strip search
be conducted by a person of the same sex as the person being searched. Thus,
summary judgment hinges on whether the photographing of Schmidt’s tattoo was a
strip search. The term “strip search” is defined by section 544.193.1(2):

      “Strip search” means the removal or rearrangement of some or all of the
      clothing of a person so as to permit an inspection of the genitals,
      buttocks, anus, breasts or undergarments of such person, including but
      not limited to inspections conducted visually, manually or by means of
      any physical instrument.



      8
        Alternatively, Schmidt argues that any dismissal of her state law tort claim
should be without prejudice. However, her state law claim was properly adjudicated
on the merits and dismissed with prejudice following the grant of summary judgment.
See Birchem v. Knights of Columbus, 116 F.3d 310, 314 (8th Cir. 1997) (“Because
discovery was completed and the case ready for trial, the district court did not abuse
its discretion in taking up and granting summary judgment on issues of state law on
which there was little basis for dispute.”).

                                         -15-
Schmidt’s statutory interpretation focuses on the use of the word “permit” in the
statute, arguing that there is a violation any time the undergarments or genitals can be
seen. However, Schmidt’s interpretation removes the word “permit” from its context;
the phrase used in the statute is “so as to permit.” Mo. Rev. Stat. § 544.193.1(2).
Missouri courts have interpreted this language to require removal or rearrangement
of clothing “for the purpose of conducting” an inspection of the arrestee’s genitals,
buttocks, anus, breasts, or undergarments. State v. Esquivel, 987 S.W.2d 481, 483
(Mo. Ct. App. 1999) (emphasis added). The district court found that the search was
for the purpose of inspecting Schmidt’s tattoo, which is located near, but not on, her
genitals. Schmidt does not dispute that she described the location of her tattoo to
Locke as being on her lower stomach. Although she contends that her underwear was
revealed during the photographing, she presents no evidence that the search was for
the purpose of inspecting her underwear, nor even that her underwear was inspected.
As such, Locke is entitled to judgment as a matter of law.

       The district court stated an alternate basis for summary judgment: Locke was
entitled to official immunity. Missouri law provides official immunity to “public
officers acting within the scope of their authority” for discretionary acts or omissions.
State ex. rel Hill v. Baldridge, 186 S.W.3d 258, 259 (Mo. 2006). Violation of a state
statute does not remove the protection of official immunity. See Southers v. City of
Farmington, 263 S.W.3d 603, 617 (Mo. 2008). Official immunity, however, provides
no protection for an act taken with bad faith or malice. State ex rel. Twiehaus v.
Adolf, 706 S.W.2d 443, 446 (Mo. 1986); Blue v. Harrah’s North Kansas City, LLC,
170 S.W.3d 466, 479 (Mo. Ct. App. 2005).

       Schmidt concedes that Locke was acting within the scope of his authority and
that the decision to photograph Schmidt’s tattoo was a discretionary act. Schmidt
argues only that Locke was motivated by bad faith or malice and thus not entitled to
immunity. In support of her argument, Schmidt offers only innuendo regarding
Locke’s mindset. Her argument relies on the same speculation and conjecture about

                                          -16-
Locke’s “ulterior motive” as does her § 1983 claim. Although we view the evidence
in the light most favorable to the nonmoving party, Porter, 436 F.3d at 920-21, such
speculation does not raise a genuine issue of fact regarding Locke’s alleged bad faith
or malice. See Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003).
Thus, summary judgment in favor of Locke was appropriate on the alternate basis of
official immunity.

                                         V.

      Accordingly, we affirm the district court’s grant of summary judgment to Police
Chief Edward Locke, Jr. and City of Bella Villa.
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