                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3650
                                  ___________

Jeremy Sheets,                          *
                                        *
              Appellant,                *
                                        *
       v.                               * Appeal from the United States
                                        * District Court for the District
Michael Butera, Lieutenant, acting      * of Nebraska.
in his individual capacity;             *
William Jadlowski, Sergeant, acting     *
in his individual capacity;             *
Felands Marion, Officer, acting in his *
individual capacity; Omaha Police       *
Department,                             *
                                        *
              Appellees.                *
                                   ___________

                            Submitted: June 17, 2004
                               Filed: November 9, 2004
                                ___________

Before SMITH, BEAM and COLLOTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

     Jeremy Sheets appeals from the district court's1 grant of summary judgment to
Appellees.

      1
      The Honorable Joseph Bataillon, United States District Judge for the District
of Nebraska.
I.    BACKGROUND

       The September 1992 murder of Kenyatta Bush remained unsolved for four
years. Although the police located her body in a ditch in Washington County,
Nebraska, almost two weeks after she was reported missing, no arrests were ever
made. However, in 1996, Barb Olson told police that Adam Barnett told her son-in-
law that Barnett and Sheets were involved in Bush's murder. Omaha police personnel
then obtained the statements of Olson's daughter and son-in-law, Richelle and Jason
LaNoue, and Richelle agreed to wear a wire and secretly tape a conversation with
Barnett. During that taped conversation, Barnett admitted that he drove the car used
in the murder of Kenyatta Bush, and implicated Sheets in the murder.2

      Police arrested Barnett on September 27, 1996. Once in custody, Officers
Butera and Jadlowski read Barnett his Miranda warnings and interviewed him for
about one hour regarding the events surrounding Bush's disappearance and murder.
During questioning, Barnett denied personal involvement in the murder and said that
Sheets killed Bush. Barnett then asked for an attorney and questioning ceased.

       The court then appointed an attorney to represent Barnett. The attorney arrived
at the police station and spoke privately with Barnett before police formally booked
Barnett for homicide. After multiple meetings with his attorney, and with his attorney
present, Barnett made another statement to the police, regarding his involvement in
the murder. In that statement, Barnett admitted to increased involvement in the
murder. He stated that Bush agreed to drive around and smoke marijuana with him
and Sheets. He further stated that he was briefly separated from the other two and
that when he returned, he found Sheets holding Bush down, stabbing her. After that
statement, Barnett's attorney negotiated a plea agreement with the county attorney in


      2
       Without more, there was sufficient probable cause at this point in the
investigation to arrest Sheets.

                                         -2-
which Barnett agreed to make a full and truthful statement to the officers, to testify
truthfully at trial, to cooperate with law enforcement requests to tour the various
crime scenes and to contact Jeremy Sheets in Maine. In exchange, Barnett would
plead guilty to second-degree murder.

      After the negotiated plea agreement, Barnett made one final, audiotaped
statement to Officers Butera and Jadlowski on September 28. In that statement
Barnett said that he and Sheets actually abducted Bush and that Barnett held her down
as Sheets sexually assaulted her and then killed her with a knife. The information
Barnett provided in this statement was not generally known to the public and was
corroborated by other evidence the officers had collected.

      Barnett was incarcerated in the Washington County Jail and there is some
evidence that he recanted his statements while in jail. Sheets's trial record also
showed, however, that while in jail, Barnett said to his uncle that "him and Jeremy
were responsible for this crime." He also told his uncle that he helped Jeremy get
Bush to the car, that he drug her down the lane, and that he held her down while
Sheets raped her. On November 13, 1996, Barnett killed himself in his jail cell.

       At Sheets's trial, the prosecution played Barnett's audiotaped confession in its
entirety for the jury over Sheets's objections. Sheets presented evidence that his
friendship with Barnett was strained by the time Barnett gave his confession and
noted all of the inconsistencies in each of Barnett's consecutive statements to police
after his arrest. Sheets also presented evidence that Barnett recanted his confession
while in jail on several occasions. Officer Butera, however, testified that some of the
details provided by Barnett in his confession could not have been known by the
general public. For example, an uninvolved individual would not have known that
Bush had been sexually assaulted, or that little blood was found on her body. The
jury convicted Sheets of first-degree murder and use of a knife to commit a felony.
A three-judge panel sentenced him to death. On appeal, the Nebraska Supreme Court

                                         -3-
reversed Sheets's conviction based upon the use of Barnett's taped confession at trial.
State v. Sheets, 618 N.W.2d 117 (Neb. 2000). The prosecutors did not retry Sheets
for Bush's murder.

       In this 42 U.S.C. § 1983 action, Sheets seeks redress for injuries he claimed
resulted from constitutional violations committed by Omaha Police Department
personnel. In particular, Sheets claims the officers violated the Fourth and Fourteenth
Amendments by coercing or fabricating Barnett's confession and using that
confession to establish probable cause for Sheets's arrest. Having determined that
Appellees were entitled to qualified immunity, the district court denied as moot
Sheets's appeal of the magistrate judge's order denying his motion to compel, as well
as Sheets's motion for continuance to respond to the motion for summary judgment,
and granted summary judgment in favor of Appellees. On appeal, Sheets argues that
further discovery would allow him to establish the constitutional violations, and thus
the district court erred by granting summary judgment to Appellees while the motion
to compel was pending.

      For the reasons set forth below, we affirm the district court.

II.   DISCUSSION

      A.     Qualified Immunity

       We review a grant of summary judgment de novo, applying the same standard
as that applied by the district court. Jefferson v. City of Omaha Police Dep't, 335
F.3d 804, 805 (8th Cir. 2003), cert. denied, 124 S. Ct. 1409 (2004). Under Federal
Rule of Civil Procedure 56(c), summary judgment is to be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law." This rule "mandates

                                          -4-
the entry of summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A principal
purpose of the summary judgment rule is to isolate and dispose of factually
unsupported claims or defenses. Id. at 323-24.

       The district court held that the individual officers were entitled to qualified
immunity. "Qualified immunity is 'an entitlement not to stand trial or face the other
burdens of litigation.'" Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell
v. Forsyth, 472 U.S. 511, 516 (1985)). A court required to rule upon the qualified
immunity issue must consider first the threshold question of whether, construed in the
light most favorable to the party asserting the injury, the facts alleged show the
officer's conduct violated a constitutional right. Id. at 201. "If no constitutional right
would have been violated were the allegations established, there is no necessity for
further inquiries concerning qualified immunity." Id. "When applying this inquiry
at the summary judgment stage, the official's conduct must be viewed through the
prism of Rule 56–that is, we must take as true those facts asserted by plaintiff that are
properly supported in the record." Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir.
2001). Only if a violation could be made out on a favorable view of the parties'
submissions, do we take the next step and ask whether the right was clearly
established. Saucier, 533 U.S. at 201. In this case, we do not get to the second step.

       In his complaint, Sheets alleges violations under the Fourth, Eighth, and
Fourteenth Amendments.3 On appeal, Sheets claims that the officers violated the
Constitution during their interrogation of Barnett by employing the following tactics
in their pursuit of Barnett's confession: (1) improperly using threats and promises, (2)


      3
       We do not address Sheets's claim under the Eighth Amendment, as he does not
argue it on appeal.

                                           -5-
making threats involving family and friends, (3) misrepresenting evidence, (4)
playing "false friend," and (5) psychologically coercing Barnett. Sheets further
argues that the officers relied upon Barnett's confession even after they should have
known it was false, and, as a result, the confession did not give rise to probable cause
to arrest Sheets. We disagree. The evidence presented at summary judgment did not
establish a constitutional violation.

             1.   Fourth Amendment

       Under the Fourth Amendment, which guarantees "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures," the relevant inquiry is whether the officers had probable cause to arrest
Sheets. U.S. CONST. amend. IV; Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir.
2000). Probable cause is to be determined upon the objective facts available to the
officers at the time of the arrest, and exists if "'the totality of facts based on
reasonably trustworthy information would justify a prudent person in believing the
individual arrested had committed . . . an offense' at the time of the arrest." Id.
(alteration in original) (quoting Hannah v. City of Overland, Mo., 795 F.2d 1385,
1389 (8th Cir. 1986)).

       We agree with the district court that Sheets did not present sufficient evidence
of any Fourth Amendment violation. At the time of Sheets's arrest, the police had
uncontroverted, unrebutted statements by Barnett, a claimed accomplice, made in the
presence of his attorney after hours of consultation with that attorney, and made after
a plea agreement with the county attorney, that clearly indicated Sheets killed Bush.
Appellees also gave considerable weight to Barnett's statement because he furnished
details of the murder that only someone involved in the murder would know: the
physical evidence was consistent with a sexual assault (a fact not released to the
public), Bush's injuries were consistent with Barnett's account of the murder, and
physical evidence supported Barnett's account that Bush had been killed while on her

                                          -6-
back and had been transported in the trunk of a car in the same position. Given the
objective facts available to the police at the time of Sheets's arrest, they had probable
cause to conclude that Sheets had committed, or was somehow involved in, Bush's
murder.

       The fact that Barnett's statements to the police changed somewhat over time,
becoming more and more inculpatory each time, does not negate the existence of
probable cause here. We agree with the district court that "[i]t seems plausible, or
even likely, that, for multiple reasons a suspect would come to a gradual awareness
of the need to assume responsibility for a crime." The evidentiary value or
admissibility of the statements is not at issue. Based upon the facts known to the
officers at the time of Sheets's arrest, construed in the light most favorable to Sheets,
there is no evidence that supports a Fourth Amendment violation.

             2.    Fourteenth Amendment

       "The Fourteenth Amendment guarantees '[s]ubstantive due process [, which]
prevents the government from engaging in conduct that shocks the conscience or
interferes with rights implicit in the concept of ordered liberty.'" Moran v. Clarke,
296 F.3d 638, 643 (8th Cir. 2002) (alterations in original) (quoting Weiler v. Purkett,
137 F.3d 1047, 1051 (8th Cir. 1998) (en banc)). Like the district court, we construe
Sheets's claims challenging the officers' behavior during Barnett's interrogation as a
substantive due process claim. According to Sheets, the officers coerced Barnett's
confession and the officers knew Barnett's confession was false.

      In determining whether a substantive right protected by the Due Process
      Clause has been violated, it is necessary to balance the liberty of the
      individual and the demands of an organized society. . . . At the outset,
      we identify the individual liberty interests at stake and the established
      demands of an organized society at issue. We then analyze,
      qualitatively, whether the interests asserted are sufficiently important for

                                          -7-
      substantive due process consideration. Ultimately, within this context,
      we assess whether the government's contested actions are conscience
      shocking.

Id. at 643-44 (internal quotations and citations omitted).

       The contested actions in this case are the interrogation tactics employed by the
officers. Sheets claims that the officers coerced Barnett using methods to "railroad
one innocent man into a false confession that implicated another innocent man." We
disagree.

        It is unnecessary for us to conduct an inquiry into the alleged liberty interest
at stake or the particular demand of an organized society at issue because the behavior
alleged in this case does not rise to the level of conscience-shocking behavior that
may sustain a substantive due process claim. "[C]onduct intended to injure in some
way unjustifiable by any government interest is the sort of official action most likely
to rise to the conscience-shocking level." County of Sacramento v. Lewis, 523 U.S.
833, 849 (1998). "[T]he threshold question is whether the behavior of the
governmental officer is so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience." Id. at 848 n.8. The alleged "coercion" in this case,
if there was any at all, certainly does not rise to this level of egregiousness.

      In reviewing police tactics to obtain a confession under the Due Process
Clause, we focus on the crucial element of police overreaching. Colorado v.
Connelly, 479 U.S. 157, 163 (1986). However, even though the police use
overreaching tactics such as the use of threats or violence, or the use of direct or
indirect promises, such promises or threats will not render the confession involuntary
unless it overcomes the defendant's free will and impairs his capacity for self
determination. Smith v. Bowersox, 311 F.3d 915, 922 (8th Cir. 2002), cert. denied,
124 S. Ct. 233 (2003). Ours is a totality-of-the-circumstances inquiry. We consider,


                                          -8-
among other things, the degree of police coercion, the length of the interrogation, its
location, its continuity, and the defendant's maturity, education, physical condition,
and mental condition. Id.

       Here, not only does the specific conduct contested by Sheets fail to rise to the
conscience-shocking level, there is no evidence that the conduct of the officers
overcame Barnett's free will and impaired his capacity for self determination. See id.
Contrary to Sheets's argument, telling Barnett that people had come to the police with
information that he and Sheets were involved in the murder, and that Sheets would
be interviewed at some time, does not amount to a threat that could lead to a false
confession. Nor does pointing out to Barnett that he was a twenty-one-year-old man
with a young family and that the way he handled the current situation would affect
how his family viewed him in the future, nor that the police already had enough
evidence to know of Barnett's involvement but that he just needed to better explain
how and why the murder happened. These tactics simply do not amount to
unconstitutional coercion. It goes without saying that the interrogation of a suspect
will involve some pressure. The very purpose is to elicit a confession. United States
v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir. 2002).

       Barnett's audiotaped confession took place after he was Mirandized and in the
presence of his attorney, with whom Barnett had spent considerable time; the length
of each of the interviews was not especially long; the police ceased the initial
interview immediately upon Barnett's request for an attorney; and Barnett was given
time between interviews to consider the situation free of police pressure. Further, the
weight Sheets attempts to place on the discrepancies in each of Barnett's accounts is
too great. The fact that Barnett increased his own culpability in Bush's murder as he
confessed to the police does not suggest that he was "fed" information by the
interrogating officers. And it certainly does not suggest that the officers were feeding
information to Barnett that implicated Sheets.



                                          -9-
        In light of these circumstances, and viewing the evidence in the light most
favorable to Sheets, we find that tactics such as those contested by Sheets were not
so coercive as to deprive Barnett of his ability to make an unconstrained decision to
implicate Sheets and to confess to his own involvement in the murder, and do not rise
to the level of malice or sadism resulting in the inhumane abuse of power that literally
shocks the conscience. See Moran, 296 F.3d at 647.

       Finally, in his complaint, Sheets alleges that the officers obtained a search
warrant based upon Barnett's audiotaped statement, which they knew to be false.
Sheets's argument on appeal concerning the clearly established state of the law is
irrelevant at this stage of the analysis. As previously noted, before we determine
whether the law was clearly established for purposes of qualified immunity, we first
must determine whether the facts alleged show that the officers violated a
constitutional right. We have determined that the tactics employed by the officers in
obtaining Barnett's statement do not offend the Constitution. And Sheets presented
no evidence that the officers either knew or recklessly disregarded a risk that Barnett
was lying. Thus, statements made in a warrant relating information from Barnett's
confession are not false nor made with reckless disregard for the truth.

             C.    Motion to Compel

       The more critical issue on appeal, according to Sheets, is the district court's
failure to rule on the merits of the pending motion to compel before granting
summary judgment in favor of the defendants. "Our review of questions concerning
discovery matters is very deferential. . . . We will not reverse such a determination
absent a gross abuse of discretion resulting in fundamental unfairness in the trial of
the case." SDI Operating P'ship, L.P. v. Neuwirth, 973 F.2d 652, 655 (8th Cir. 1992)
(quotations omitted).




                                         -10-
       At the time the district court ruled on the summary judgment motion, Sheets's
discovery motion was pending. In that motion, Sheets sought the testimony of
Barnett's court-appointed attorney concerning the attorney's conversations with
Barnett when Barnett was interrogated and when he confessed. Sheets claims that the
attorney's testimony would call into question the constitutionality of the officers'
behavior in obtaining Barnett's confession and the voluntariness of the same. The
district court ruled that the motion was moot because the defendants were entitled to
qualified immunity. On appeal, Sheets spends significant time arguing the merits of
his claim that the motion to compel should have been granted because the personal
representative of Barnett's estate waived the attorney-client privilege. We need not
get that far.

       The defendant's motion for summary judgment raised two overlapping claims:
(1) the individual officers were entitled to qualified immunity, and (2) Sheets could
not substantiate the merits of his claim. Thereafter, Sheets filed a motion to continue
the response deadline to conduct discovery on all issues presented by the officers'
motion except for the issue of qualified immunity, stated to the court that he was "able
to address the issues relating to qualified immunity now," and submitted a responsive
brief on that issue. Sheets then later filed the motion to compel without retracting his
prior affirmation to the court that the issue of qualified immunity was ripe for
determination.

       At Sheets's very request, then, the district court ruled on the pending summary
judgment motion with respect to qualified immunity. That ruling, of course, required
the district court to evaluate the merits of the constitutional violation in light of the
evidence available. Saucier, 533 U.S. at 200. At best for him, Sheets's motions were
in conflict. We cannot fault the district court for traveling a course that Sheets
ambiguously, or perhaps unwittingly, marked.




                                          -11-
      Given the status of the case at the time the district court ruled on the qualified
immunity issue, we see no basis for Sheets's arguments concerning the district court's
denial of the motion to compel. The district court did not abuse its discretion.4

III.   CONCLUSION

       For the reasons stated herein, we affirm the order of the district court.
                       ______________________________




       4
        Sheets's apparent request for a qualified immunity ruling notwithstanding, we
see no reason to consider the attorney-client privilege question. Even assuming that
Barnett may have been able to assert a substantive due process claim, we have found
no precedent that the benefits of such a claim could run vicariously to Sheets under
the circumstances of this case. And, Sheets cites none.

                                         -12-
