                                   ____________

                                    No. 95-1515
                                   ____________


Chris Veneklase; Paul B. Mehl;          *
Darold Larson; Nancy Emmel;             *
Jessica Uchtman, *
                                    *
                    Appellees,      *
                                    *
      v.                            * Appeal from the United States
                                    * District Court for the
City of Fargo; David Todd;          * District of North Dakota
Jim Schalesky; Jon Holman;          *
Wayne Jorgenson, Sergeant,          *
City of Fargo Police                *
Department,                         *
                                    *
                  Appellants.       *
                              ____________

                      Submitted:    October 18, 1995

                          Filed:     March 6, 1996
                                   ____________

Before WHITE, Associate Justice (Ret.),* and McMILLIAN and LOKEN,
      Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


        The City of Fargo and several of its police officers, Officer David
Todd, Officer Jim Schalesky, Lieutenant Jon Holman, and
Sergeant Wayne Jorgenson (collectively defendant officers) appeal from a
final order entered in the United States District Court for the District
of North Dakota granting partial summary judgment to Chris Veneklase, Paul
Mehl,   Darold Larson, Nancy Emmel, and Jessica Uchtman (collectively
plaintiffs) under 42 U.S.C. § 1983. Veneklase v. City of Fargo, No. A3-93-
156 (D. N.D. Feb. 17, 1995).




        *The Honorable Byron R. White, Associate Justice of
        the United States Supreme Court, (Ret.), sitting by
        designation, pursuant to 28 U.S.C. § 294(a).
Plaintiffs are anti-abortion protestors who were arrested by the defendant
officers pursuant to the Fargo Residential Picketing Ordinance (ordinance)
after demonstrating outside the home of the administrator of a medical
facility in Fargo which provides abortion services.                  The district court
held that the defendant officers were not entitled to qualified immunity
and that the City was also liable because it had been deliberately
indifferent in failing to train its police force.                    For reversal, the
defendant officers argue the district court erred in holding that they were
not entitled to qualified immunity; the City argues the district court
erred in holding it liable under 42 U.S.C. § 1983 for deliberately failing
to train its police officers.          For the reasons discussed below, we reverse
that part of the district court order denying qualified immunity, decline
to consider the appeal of the City for want of appellate jurisdiction, and
remand the case to the district court for further proceedings consistent
with this opinion.
                                       I.   Background


      On       the    evening   of   October    10,   1991,   plaintiffs   engaged   in   a
demonstration outside the administrator's residence.               They walked back and
forth, in single file, on the sidewalk in front of the administrator's
home, but their route included approximately two to three houses on either
side of the administrator's residence.               In addition, one protester remained
in front of the administrator's             home at all times.      Plaintiffs remained
silent and carried no signs.            In response to a complaint, the defendant
officers arrived and informed the demonstrators that their actions violated
the ordinance.1         The officers thereafter arrested those persons who


           1
        The Fargo Residential Picketing Ordinance in effect on
October 10, 1991, provided:

      10-801.    Definitions. -- For purposes of this
      article, certain words and phrases used herein are
      defined as follows:

            1.   "Dwelling" means any structure or
      building, or dwelling unit within a building, which
      is used as a place of residence.

                 2.      "Picketing"        means      the    practice     of

                                               -2-
refused to leave (plaintiffs in this action, with the exception of one
protester, a minor).   Although plaintiffs were charged with violating the
ordinance, these charges were later dismissed by the county court judge.



      On October 7, 1993, plaintiffs instituted this 42 U.S.C. § 1983 suit
in the United States District Court for the District of      North Dakota,
alleging, inter alia, that the defendant officers and the City had violated
their First Amendment right to freedom of speech and their Fourth Amendment
right not to be arrested without probable cause.2    On February 17, 1995,
in response to the parties cross-motions for summary judgment, the district
court entered a Memorandum and Order in which it concluded that the City
and the defendant officers were liable to plaintiffs for violation of their
First and Fourth Amendment rights.3   The district court rejected




      standing, marching, or patrolling by one or more
      persons inside or, in front, or about any premises
      for the purpose of persuading an occupant of such
      premises or to protest some action, attitude, or
      belief.

      10-802. Picketing of dwellings prohibited. -- No
      person shall engage in picketing the dwelling of
      any individual in the City of Fargo.

Fargo Municipal Code, arts. 10-801 to 10-802 (1985). On February
1, 1993, the City revised the ordinance to prohibit "targeted
residential picketing" and defined what kinds of activity
constituted "targeted residential picketing."          The amended
ordinance, which this court considered in Kirkeby v. Furness, 52
F.3d 772, 774 (8th Cir. 1995), is not at issue in the present case.

         2
      In addition to their § 1983 claim, plaintiffs also alleged
state law claims of malicious prosecution, false arrest, and false
imprisonment.
     3
      The district court granted partial summary judgment in favor
of the defendant officers and the City on all state law claims and
claims for punitive damages. Slip op. at 48-49.

                                    -3-
the defendant officers' claim of qualified immunity and also held that the
City had been deliberately indifferent to the rights of plaintiffs in
failing to train its police force.           Slip op. at 35, 43.     The defendant
officers and the City timely filed this appeal.


                                   II.   Discussion


A.    Qualified Immunity


        As a threshold matter, we must determine whether we have jurisdiction
over the appeal of the defendant officers.         In a "qualified immunity" case,
a    district   court's   denial    of   summary   judgment   constitutes   a    final
appealable order to the extent that it turns on "abstract issues of law."
Johnson v. Jones, 115 S. Ct. 2151, 2158 (1995).           By contrast, a district
court's pretrial rejection of a proffered qualified immunity defense is not
immediately reviewable if the issue on appeal is whether the pretrial
record is sufficient to create a genuine issue of material fact.                Id. at
2158-59; see also Mitchell v. Forsyth, 472 U.S. 511, 526-30 (1985)
(district court order denying defendant's motion for summary judgment was
immediately appealable collateral order where defendant was public official
seeking qualified immunity and where issue appealed concerned whether or
not certain given facts showed violation of "clearly established" law).
In the present case, however, the district court denied the defendant
officers' motion for summary judgment on the basis that plaintiffs had a
clearly established right to picket in a residential neighborhood and that
a reasonable officer under the circumstances in the present case could not
have believed the arrests of plaintiffs were lawful.            Slip op. at 27-35.
Because these issues are legal, rather than factual, and because the facts
required to determine whether the defendant officers are entitled to
qualified immunity are not genuinely in dispute, we have jurisdiction.




                                          -4-
       Government officials performing discretionary functions may rely on
the defense of qualified immunity to shield them from liability for civil
damages unless their conduct violates "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 Malley v. Briggs,
475 U.S. 335, 341 (1986) (qualified immunity protects "all but the plainly
incompetent or those who knowingly violate the law").    In order for a right
to be clearly established, its contours "must be sufficiently clear that
a reasonable person would understand that what he [or she] is doing
violates that right."       Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(Anderson).


       The district court first concluded that plaintiffs had alleged a
violation of a constitutional right in contending that the officers had
arrested them for picketing on public sidewalks and streets.     Slip op. at
27.    The district court then determined that, in light of Frisby v.
Schultz, 487 U.S. 474, 482-84 (1988) (Frisby), plaintiffs had a clearly
established right to picket in the manner at issue in the present case.
In Frisby, the Supreme Court upheld the residential picketing ordinance of
Brookfield, Wisconsin4 by interpreting its language as prohibiting only
"focused picketing taking place solely in front of a particular residence."
Frisby,       487 U.S. at 483-88.    Concluding that the Court's narrowing
construction in Frisby defined the standard for analogous cases, the
district court found that plaintiffs had a clearly established right to
picket outside the administrator's residence and adjacent houses on October
10, 1991.       Slip op. at 30-32.   The district court further held that no
reasonable officer under the particular circumstances could have believed
that




          4
       The Brookfield residential picketing ordinance, which is
virtually identical to the Fargo ordinance, provided:        "It is
unlawful for any person to engage in picketing before or about the
residence or dwelling of any individual in the Town of Brookfield."
Frisby, 487 U.S. at 477.

                                       -5-
plaintiffs' arrests were lawful, in light of clearly established law and
the information the defendant officers possessed.        Slip op. at 33-35
(citing Gainor v. Rogers, 937 F.2d 1379, 1384 (8th Cir. 1992)).    Thus, the
district court determined that the defendant officers were not entitled to
qualified immunity under 42 U.S.C. § 1983.


       On appeal, the defendant officers argue that the district court erred
in holding that plaintiffs had a clearly established right to picket along
a route encompassing the Bovard home and the two to three houses on either
side of it.   They maintain that some uncertainty remains after Frisby as
to   what constitutes "focused" residential picketing.        The defendant
officers further contend that, even if Frisby clearly established such a
right, a reasonable officer would not have known, on October 10, 1991, that
the arrests of plaintiffs violated their First and Fourth Amendment rights.
Brief for Appellants at 13, 24-25.     Because we agree that plaintiffs did
not have a clearly established right after Frisby to picket as they did on
October 10, 1991, we hold that the defendant officers are entitled to
qualified immunity.


       In Frisby, the Supreme Court held that the type of residential
picketing prohibited by the Brookfield ordinance -- that is, focused
picketing taking place solely in front of a particular residence -- was
"fundamentally    different   from   more   generally   directed   means   of
communication that may not be completely banned in residential areas."
Frisby,   483 U.S. at 486.       The Court therefore determined that the
Brookfield ordinance struck an appropriate balance between, on the one
hand, the State's interest in protecting residential privacy and, on the
other hand, the plaintiff's First Amendment right to freedom of speech.
See id. at 483-88.    Some questions remain after Frisby, however, as to the
meaning of "focused picketing taking place solely in front of a




                                     -6-
particular residence."   See id. at 483.5   It may be that where, as in the
present case, at least one protester remains in front of the targeted
residence at all times, the fact that other protesters march in front of
several houses adjacent to the targeted dwelling does not diminish the
"focused" character of the picketing.     But cf. Vittitow v. City of Upper
Arlington, 43 F.3d 1100, 1107 (6th Cir. 1995), cert. denied, 115 S. Ct.
2276 (1995) (striking down as unconstitutionally overbroad residential
picketing ordinance identical to that in Frisby and rejecting argument
proffered by city that ordinance was violated whenever one residence could
be   discerned as the target of picketing).       Whether protesters may,
consistent with the Frisby holding, include houses adjacent to the targeted
dwelling on the picketing route, is an issue which we need not resolve




       5
      The questions regarding the scope of "focused" residential
picketing were well-recognized by the Seventh Circuit when it
considered Frisby on remand:

       We appreciate the plaintiff's concern that it is
       hard to tell when picketing is 'directed at' a
       particular home. Will it be enough to go 'round
       and 'round the block?    Could the picketers march
       in front of the five houses on either side of the
       [targeted residence]?     May they stop for one
       minute, or two, or five, in front of the [targeted
       residence] . . . before moving along . . . ? No
       matter how clear the ordinance seems, a hundred
       nice questions may follow in its wake . . . .
Schultz v. Frisby, 877 F.2d      6, 8 (7th Cir. 1989).

                                    -7-
today, yet it is a significant question which lingers after Frisby.6   Thus,
upon a careful reading of Frisby, we do not




      6
       In Madsen v. Women's Health Center, Inc., 114 S. Ct. 2516,
2529-30 (1994) (Madsen), the Supreme Court struck down a state
court injunction prohibiting anti-abortion protestors from
picketing within 300 feet of the residences of abortion clinic
staff. Id. at 2529-30. The Court held that the 300-foot buffer
zone around staff residences swept more broadly than necessary to
protect residential privacy, because it would ban general marching
through residential neighborhoods, or even walking a route in front
of an entire block of houses. Nevertheless, the Court recognized
a   difference   between  generally   applicable   ordinances and
injunctions, stating that ordinances "represent a legislative
choice regarding the promotion of particular societal interests,"
whereas injunctions are "remedies imposed for violations (or
threatened violations) of a legislative or judicial decree." Id.
at 2524.    This distinction, the Court reasoned, "require[d] a
somewhat more stringent application of general First Amendment
principles in this context." Id. Although the qualified immunity
issue before us concerns whether plaintiffs had a clearly
established right on October 10, 1991, to picket as they did in
front of the administrator's home, we note that Madsen left
unresolved the question whether an ordinance may prohibit
individuals from picketing in front of the homes adjacent to a
targeted residence.


                                   -8-
find that its holding defined the outer parameters of "focused" residential
picketing.    We hold that plaintiffs did not have a clearly established
right on October 10, 1991, to picket in a route encompassing the Bovard
residence and the two to three homes on either side of it.   We further hold
that the arrest of plaintiffs by the defendant officers was objectively
reasonable in light of the legal rules in existence at the time the action
occurred.    See Anderson, 483 U.S. at 640.   We therefore conclude that the
defendant officials are entitled to qualified immunity under 42 U.S.C.
§ 1983.


B.    Municipal Liability


      For reversal, the City argues that the district court erred in
holding that (1) the   City's training program was inadequate to train its
police officers to properly enforce the residential picketing ordinance,
(2) the City's failure to train its police officers evidenced a "deliberate
indifference" to plaintiffs' rights, and (3) the City's failure to train
its police officers was a moving force behind the constitutional violation
alleged by plaintiffs.     See City of Canton v. Harris, 489 U.S. 378, 388
(1989) (adopting "deliberate indifference" standard of municipal liability
for failure-to-train claims under 42 U.S.C. § 1983); Monell v. New York
City Dep't of Social Serv., 436 U.S. 658, 694 (1978) (limiting




                                     -9-
municipal liability under 42 U.S.C. § 1983 to actions occurring pursuant
to official policy or custom).


       We conclude, however, that the interlocutory appeal of the City is
not properly before us, in light of Swint v. Chambers County Comm'n, 514
U.S.     ,     , 115 S. Ct. 1203, 1208 (1995) (Swint).      In Swint, the Supreme
Court held that the Court of Appeals had lacked jurisdiction to review on
interlocutory appeal the district court's denial of summary judgment to the
Chambers County Commission in a suit brought under 42 U.S.C. § 1983.              Id.
at 1207-12.    The Court first noted that the district court order denying
the County Commission's summary judgment motion was not appealable as a
collateral order.        See id. at 1208; see also Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949) (decisions which are conclusive, which
resolve important questions apart from the merits of the underlying action,
and which are effectively unreviewable on appeal from final judgment may
be appealed immediately as collateral orders).              The Court held that
although the Court of Appeals had jurisdiction to review immediately the
denial of summary judgment to individual police officer defendants on
qualified     immunity     grounds,   it   lacked    "pendent   party"      appellate
jurisdiction to review contemporaneously the unrelated question of the
County   Commission's      liability.      See   Swint,   115   S.   Ct.    at   1212.
Nevertheless, the Court stated that, "[w]e need not definitively or
preemptively settle here whether or when it may be proper for a court of
appeals with jurisdiction over one ruling to review, conjunctively, related
rulings that are not themselves independently appealable."            Id.



       This court applied Swint in Kincade v. City of Blue Springs, 64 F.3d
389, 394-95 (8th Cir. 1995) (Kincade).         In Kincade, several city officials
sought review of a denial of their motion for summary judgment on the
plaintiff's § 1983 claim; the plaintiff had alleged that the city officials
had violated his First Amendment rights by discharging him from his
employment as the City Engineer




                                        -10-
because of certain statements he had made regarding the construction of a
local dam.    Id. at 393.     We considered whether, on interlocutory review of
a denial of the defendants' summary judgment motion, we had pendent
appellate jurisdiction to consider the defendants' claims that (1) the
plaintiff's speech was not constitutionally protected and (2) the plaintiff
had failed to establish that his speech caused his termination.                      We
concluded that after Swint, pendent appellate jurisdiction would be
appropriate        over   claims   that   are    "inextricably    intertwined"     with
interlocutory appeals concerning the defense of qualified immunity.                See
id. at 394.    Thus, we held that we could review the defendants' claim that
plaintiff's speech was not constitutionally protected, because that claim
was "coterminous with, or subsumed in" the qualified immunity issue; by
contrast,     we    lacked   pendent   appellate   jurisdiction    to   consider    the
defendants' causation argument, which presented questions significantly
different from the qualified immunity issue.            See id. at 395.


      Applying our reasoning in Kincade to the present case, we conclude
that the interlocutory appeal of the City is not "inextricably intertwined"
with the question whether the defendant officers are entitled to qualified
immunity.      Because resolution of these two issues requires entirely
different analyses, we hold that the question whether the City is liable
under 42 U.S.C. § 1983 for failing to train its police force is not
"coterminous with, or subsumed in" the qualified immunity issue.                   Id.
                                                           7
Thus, we decline to address the appeal of the City.            See Swint, 115 S. Ct.
at 1212; Kincade, 64 F.3d at 395.           We are confident, however, that the
district court will now reconsider its ruling as to the City in




     7
      The defendant officers and the City additionally argued that
the district court erred in holding as a matter of law that the
residential picketing ordinance was unconstitutional as applied in
the present case.     Because this issue is not necessary to a
disposition of the questions before us today, we need not consider
it.

                                          -11-
light of our resolution of the qualified immunity issue, particularly our
determination that plaintiffs' arrest was objectively reasonable.


      We hold that the defendant officers are entitled to qualified
immunity and that the appeal of the City is not properly before us at this
stage of the proceedings.     Accordingly, we reverse the judgment of the
district court insofar as it denied qualified immunity to the defendant
officers, decline to reach the City's appeal for want of appellate
jurisdiction, and we remand the case to the district court for further
proceedings consistent with this opinion.


      A true copy.

            Attest:

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




                                   -12-
