316 F.3d 777 (8th Cir. 2003), 01-3336, Hawkins v. Holloway

Docket Nº:01-3336
Citation:316 F.3d 777
Party Name:Hawkins v. Holloway
Case Date:January 17, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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316 F.3d 777 (8th Cir. 2003)

Michael R. HAWKINS; David A. Hennenflow; Jacqueline L. Springer; Larry D. Johnson; Robert A. Wescott; Tracy L. Clevenger; William J. Fields; Maria E. Morrison; Todd M. Herdman; Nancy J. Johnson; Dana L. Huffman, Appellees,


Gary HOLLOWAY, Appellant.

No. 01-3336.

United States Court of Appeals, Eighth Circuit

January 17, 2003

Submitted: May 13, 2002.

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Earlene Farr, argued, Kansas City, MO (Brandon D. Mizner, on the brief), for appellant.

Theresa L. F. Levings, argued, Kansas City, MO (Elizabeth D. Badger, on the brief), for appellee.

Before HANSEN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and PRATT, District Judge.1

HANSEN, Circuit Judge.

Nine plaintiffs2 who worked at various times for the Ray County, Missouri, Sheriffs Department brought this 42 U.S.C. § 1983 action against Sheriff Gary Holloway. Plaintiffs allege that Sheriff Holloway threatened to shoot several of them with his loaded handguns and that the sheriff inappropriately touched them and made sexually suggestive comments to them during the course of their employment. They claim the sheriffs malfeasance violated their substantive due process rights under the Constitution and gave rise to several violations of state law as well. On summary judgment, the district court ruled that Sheriff Holloway was not entitled to qualified immunity for the alleged violations of federal law or public official immunity under Missouri law for the plaintiffs' state law claims. We conclude, however, that the summary judgment record fails to support several of the plaintiffs' purported substantive due process violations and therefore we reverse the judgment of the district court as to those claims. We affirm in all other respects.


We begin our review of the district court's judgment with the plaintiffs' constitutionally based substantive due process claims. In addition to providing procedural safeguards when the government seeks to deprive an individual of a protected right, the Fourteenth Amendment to the Constitution protects substantive aspects of an individual's liberty from impermissible government restrictions. Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 197, 99 S.Ct. 1062, 59 L.Ed.2d 248 (1979). Substantive due process offers only limited protections and only guards against the exercise of arbitrary and oppressive government power. Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In the context of allegations that a state official has abused his executive power, the test we employ to ascertain a valid substantive due process violation is "whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S. 833, 848 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). The Supreme Court has been reluctant to expand

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the protections afforded by substantive due process "because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended," and it has only done so with the "exercise [of] the utmost care." Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). We have noted the following:

The guarantee of due process draws a line between the power of the government, on the one hand, and the security of the individual, on the other. This line is not a fixed one like a property boundary. Its location must be surveyed anew by the court in each case through an examination of the benchmarks disclosed by the circumstances surrounding the case.

Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir. 1986).

A. Facts Relevant to Qualified Immunity

Because Holloway appeals from the denial of qualified immunity, our review is quite limited. Normally, the denial of summary judgment is a nonfinal order that cannot be appealed. However, a defendant may immediately appeal a district court's denial of qualified immunity pursuant to the collateral order doctrine. In this context, our review is limited to determining whether the official is entitled to qualified immunity based on the summary judgment facts as described by the district court. Turner v. Ark. Ins. Dep't, 297 F.3d 751, 754 (8th Cir. 2002). In other words, we have jurisdiction to review whether an official is entitled to immunity to the extent the question turns on an issue of law, but we may not review a district court's conclusion that the pretrial record presents a sufficient factual dispute requiring a trial.3 Johnson v. Jones, 515 U.S. 304, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). With this in mind, the qualified immunity inquiry requires us first to determine whether the summary judgment facts as described by the district court demonstrate a violation of the plaintiffs' constitutional substantive due process rights, and if so, we must then ascertain whether the violations were clearly established at the time of the sheriff's alleged conduct. See Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000).

Plaintiffs' substantive due process claims can be grouped into two categories: (1) those involving the sheriffs alleged sexually assaultive and abusive behavior directed against both male and female employees, and (2) those involving the sheriff's threats to shoot several of the employees during their employment. Because the employees' claims arise out of numerous and distinct episodes of the sheriffs alleged malfeasance, we set forth the relevant summary judgment facts individually by plaintiff as the district court described them. We have also reviewed the summary judgment record to ascertain whether it contains any facts that the court may have assumed that would support its denial of qualified immunity. See supra at 781 n. 3.

Michael Hawkins

Michael Hawkins alleges that Sheriff Holloway grabbed Hawkins' clothed crotch area and touched his genitals through his clothing. The sheriff allegedly made comments such as, "can I have some lovin's?," or other vulgar sexual remarks when he

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touched or grabbed Hawkins. Hawkins testified during his deposition that he believed the remarks were intended as sexual overtures. Hawkins identifies other occasions when the sheriff pinched, grabbed, or jammed his thumb into Hawkins' clothed buttocks, and one occasion when the sheriff bent down and sucked on Hawkins' ear lobe and told Hawkins that he was just trying to give him "some lovin's." (J.A. at 1245.) Hawkins also claims that in September 1997, Sheriff Holloway pulled his service revolver on him after Hawkins made a joke about the sheriff. The sheriff shoved the weapon into Hawkins' genitals and, with his finger on the trigger, told Hawkins, "You get smart with me, I'll blow your f___ing balls off." (J.A. at 315.) Hawkins identifies several other occasions when the sheriff pointed his weapon at him.

David Hennenflow

David Hennenflow worked in the department from June 1997 until he was fired in August 1999. He claims that the sheriff repeatedly grabbed his clothed chest and buttocks throughout his employment and that the sheriff frequently asked him if he wanted to see the sheriffs "pee pee." The sheriff also twice asked whether Hennenflow wanted "to take the wrinkles out" of the sheriffs penis. (J.A. at 381.) Like Hawkins, Hennenflow identifies an incident when the sheriff pointed a weapon at him. In October 1997, Hennenflow made a comment to the sheriff about taking night calls. In response, Sheriff Holloway pointed his weapon at Hennenflow's crotch and stated, "I'll blow your balls off."

Jacqueline Springer

Jacqueline Springer, a deputy from October 1996 until November 1999, alleges the sheriff inappropriately touched her and made vulgar comments to her during her employment. The sheriff once came up from behind her and placed his hands around her and grabbed her breasts. (J.A. at 629.) On several occasions, the sheriff stood next to her and pulled her close to him. Often times when the sheriff did so, he laid his hand on Springer's breast. The sheriff often picked up Springer's beverage, placed it near his crotch, and asked Springer if she wanted him to fill it up. Springer was also present when the sheriff pulled his weapon on others, and she feared for her safety during the incidents.

Larry Johnson

Larry Johnson worked as a sheriffs deputy from May 1997 until he was terminated in August 1999. Johnson was present when the sheriff pointed his weapon at Hawkins' and Hennenflow's crotches and when the sheriff pointed a weapon at a state trooper while at the sheriff's home. Numerous individuals, including Hawkins and plaintiff Robert Wescott, were at the sheriff's home for a barbecue. The trooper moved some papers on the sheriffs counter. Upset at the trooper, the sheriff then pulled a loaded gun from beneath the counter, pointed it at the trooper, and told the trooper to leave the papers alone. Fearing that the sheriff intended to shoot the trooper, Johnson placed his hand on his own weapon as a precaution. The sheriff eventually put down his weapon, and the group continued their meal. Johnson was also present when Sheriff Holloway allegedly pulled a weapon on a citizen visiting the sheriff's department. In both incidents, Johnson feared for his own safety even though he was not the subject of the sheriff's scorn.

Robert Wescott

Robert Wescott, a sheriff's deputy from April 1998 until October 1999, alleges that the sheriff grabbed or pinched his clothed buttocks on numerous occasions and

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slapped him in the back of the head once. The sheriff also made vulgar comments to Wescott, such as "wanna see my pee pee?" Wescott also points out that he was present when the sheriff pulled a weapon on the trooper and the citizen.

Tracy Clevenger

Tracy Clevenger, a deputy from...

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