Allan Rodgers, et al v. Daniel Knight, et al

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Steven M. Colloton and Jane Kelly AUTHORING JUDGE:Steven M. Colloton (PUBLISHED) [4257148] [14-1425, 14-1454]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1425
___________________________
Allan Rodgers; Gregory Allan Rodgers,
lllllllllllllllllllll Plaintiffs - Appellants,
v.
Daniel K. Knight; Brian Liebhart; Thomas Quintana; Lloyd Simons; Mark
Brotemarkle; Mike Valley; Kyle Lucas; Geoffrey Jones; Kenneth M. Burton;
Cassandra Rogers,
lllllllllllllllllllll Defendants - Appellees,
Richard Hicks,
lllllllllllllllllllll Defendant,
City of Columbia, Missouri; Boone County,
lllllllllllllllllllll Defendants - Appellees,
United States of America,
lllllllllllllllllllllIntervenor.
___________________________
No. 14-1454
___________________________
Raymond D'Sean Franklin; Robert Dewayne Franklin,
lllllllllllllllllllll Plaintiffs - Appellants,

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v.
Daniel K. Knight; Geoffrey Jones; Kenneth M. Burton; Richard Hicks; City of
Columbia Missouri; Boone County,
lllllllllllllllllllll Defendants - Appellees.
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: September 11, 2014
Filed: March 23, 2015
____________
Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
____________
COLLOTON, Circuit Judge.
This is a consolidated appeal from two decisions of the district court.1
Appellants Robert and Raymond Franklin in one case, and Allan and Greg Rodgers
in another, brought suit under 42 U.S.C. § 1983 against law enforcement officials and
municipalities. They alleged, as relevant on appeal, violations of rights under the
First, Second, Fourth, Fifth, and Fourteenth Amendments. The claims relate to the
seizure of firearms from the appellants and the arrests and prosecutions of Greg
Rodgers and Raymond Franklin. In both cases, the district court granted summary
judgment for the defendants on all claims. We affirm.

1

The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
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I.
The Rodgers case involves an arrest of Greg Rodgers in August 2011, a
subsequent search of his residence, a prosecution that was later dismissed, and the
retention of seized firearms. Five police officers from Columbia, Missouri, arrested
Greg at his apartment complex on August 12, 2011, on a municipal warrant for failure
to appear in court. Greg was outside when officers approached, and he started to jog
toward his apartment. When officers ordered Greg to stop, he turned around, took a
Browning 9 millimeter pistol from his waistband, and threw the gun aside. After
officers handcuffed him, Greg asserted that he had a Florida permit to carry a
concealed weapon, but did not produce the permit. An arresting officer, Thomas
Quintana, prepared a “Probable Cause Statement” for prosecutors that same day,
alleging that Greg committed the offenses of unlawful use of weapons and resisting
or interfering with arrest.
Later that month, police executed a warrant to search the “premises” of Greg’s
apartment for “ammunition and firearms and any other evidence related to the crime
of unlawful possession of a weapon.” Officers seized several firearms belonging to
Greg Rodgers or his father, Allan Rodgers, from a locked storage closet below the
stairs that led to Greg’s second-floor apartment.
A county prosecutor then charged Greg with unlawful use of a firearm by
carrying a concealed weapon. Later, after Greg’s counsel notified the prosecutor in
writing that Florida had issued Greg a permit to carry a concealed weapon, the
prosecutor amended the charge to allege possession of a firearm by a “fugitive from
justice.” The prosecution’s theory was that Greg was a fugitive from justice because
he failed to appear in court on a summons that was issued for leaving the scene of a
motor vehicle accident. The prosecutor also charged Greg with resisting arrest based
on the August 12 incident.

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The trial court dismissed the firearms charge, and the Missouri Court of
Appeals affirmed on February 5, 2013. State v. Rodgers, 396 S.W.3d 398 (Mo. Ct.
App. 2013). The court of appeals noted that “fugitive from justice” is not defined by
statute, and that no case had defined the phrase in this context. Id. at 400-01. But the
court concluded that the rule of lenity required strict construction of the ambiguous
language in favor of Rodgers. Id. at 403. Thus, the court held that Greg was not a
fugitive from justice and affirmed the dismissal of that charge. Id. at 404. The
Missouri Supreme Court denied an application for transfer on April 30, 2013, and in
May 2013, the prosecutor dismissed the remaining charge for resisting arrest.
In early 2012, Allan Rodgers asked the Boone County, Missouri, Prosecuting
Attorney’s Office to return his firearms that were seized during the search in August
2011. An assistant prosecuting attorney and the chief investigator at the prosecuting
attorney’s office directed the police department’s evidence custodian in February
2012 to retain the firearms; the investigator noted that prosecutors would be refiling
a criminal case against Greg. Eventually, a police captain authorized the evidence
custodian to release Allan’s firearms, and Allan reclaimed them on September 21,
2012. Greg requested return of his firearms on October 8, 2012, and police returned
all but the Browning 9 millimeter pistol on October 22. Police eventually notified
Greg on July 30, 2013, that he could pick up the Browning pistol.
II.
A.
Greg’s lead argument on appeal is that county prosecutors and police officers
arrested and prosecuted him without probable cause for unlawful use of a firearm by
carrying a concealed weapon. Greg contends that there was no basis for that charge
once he told the arresting officers that he had a permit from Florida to carry a
concealed weapon. Alternatively, he asserts that he lawfully carried the firearm
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because Missouri’s prohibition on carrying concealed weapons does not apply when
a person “is in his or her dwelling unit or upon premises over which the actor has
possession, authority or control.” Mo. Rev. Stat. § 571.030.3.
The prosecutors have absolute immunity for filing the charge, Imbler v.
Pachtman, 424 U.S. 409, 430-31 (1976), so the district court properly dismissed the
claim against them. Greg appears to contend that police officers seized him without
probable cause on August 12, but that claim fails because there was a warrant for
Greg’s arrest based on his failure to appear in court. The warrant justified the seizure
whether or not other reasons articulated by the officers—including unlawful use of
a weapon—were also sufficient.
Insofar as Greg alleged a malicious prosecution claim against police officers
based on the filing of the concealed weapons charge, he has not demonstrated any
damages arising from that action, so the claim was properly dismissed. See Chi.
Great W. Ry. Co. v. Robinson, 243 F.2d 389, 391 (8th Cir. 1957). Prosecutors
eventually amended the charge to allege unlawful possession as a fugitive from
justice, and Greg was not tried on the concealed weapons allegation.
In any event, the police officers were at least entitled to qualified immunity on
a Fourth Amendment claim for their role in recommending the unlawful use of
weapons charge. The officers determined that Greg did not have a Missouri permit
to carry a concealed weapon, and they were not required to accept Greg’s assertion
that he had been issued a permit from Florida—especially when Greg attempted to
flee from police and did not carry such a permit on his person as required by Florida
law. Fla. Stat. § 790.06. It was not clearly established that the officers, having
developed probable cause for a concealed firearms offense, were required to
investigate Greg’s claim about a Florida permit; our precedent suggests the opposite.
Clayborn v. Struebing, 734 F.3d 807, 809-10 (8th Cir. 2013). Although Greg
reportedly informed different police officers about the Florida permit during a
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previous encounter in January 2011, there was no evidence that the arresting officers
in August 2011 knew that information.
Nor was it clearly established that probable cause was defeated by the
“dwelling unit” exception for carrying concealed weapons in Missouri. No court had
construed the meaning of “dwelling unit or . . . premises over which the actor has
possession, authority or control,” Mo. Rev. Stat. § 571.030.3, and there was Missouri
authority suggesting that “a tenant does not have control of the common areas and
thus does not possess them.” Motchan v. STL Cablevision, Inc., 796 S.W.2d 896, 900
(Mo. Ct. App. 1990). Officers reasonably could have believed that Greg was
forbidden to carry a concealed weapon without a permit in common outdoor areas of
the apartment complex. Therefore, officers are entitled to qualified immunity for
recommending the firearms charge to county prosecutors.
B.
Greg next appeals the dismissal of claims relating to the execution of the search
warrant at his apartment. He argues that an officer sought the warrant without
probable cause to believe that Greg committed a firearms offense, because Greg’s
failure to appear in municipal court did not make him a “fugitive from justice” under
Mo. Rev. Stat. § 571.070.1(2). A police officer applying for a search warrant is
entitled to qualified immunity unless the warrant application is “so lacking in indicia
of probable cause as to render official belief in its existence unreasonable.” Malley
v. Briggs, 475 U.S. 335, 344-45 (1986).
At the time of the warrant application, the phrase “fugitive from justice” was
undefined by Missouri statute or case law, and the Missouri Court of Appeals later
characterized a proper analysis of the meaning as “elusive.” Rodgers, 396 S.W.3d at
402. Because the question was close, and it was not clearly established that “fugitive
from justice” excluded a person with an outstanding arrest warrant for municipal
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violations, it was reasonable for the officer seeking the warrant to believe that Greg’s
possession of firearms violated Missouri law. Therefore, the district court properly
held that officers involved in procuring the warrant were entitled to qualified
immunity.
Greg also contends that the searching officers exceeded the scope of the
warrant and thus violated the Fourth Amendment when they seized firearms from a
storage closet. The warrant authorized a search of the “premises” described as 1607
Windsor Street, apartment 8. The storage closet was located beneath stairs that led
to Greg’s second-floor apartment. It was reasonable for the officers to believe that
they could search a structure “appurtenant to the premises” pursuant to a warrant
authorizing a search of the premises. See United States v. Fagan, 577 F.3d 10, 13
(1st Cir. 2009). It was also reasonable for the officers to conclude that the storage
closet—for which Greg had a key, and over which he admitted control—was
appurtenant to the apartment. In similar circumstances, this court held that a
resident’s consent to search an apartment included authority to search a locked
storage room that was located ten feet outside of the door of the apartment, where the
resident’s lease included access to the room and the resident possessed a key. United
States v. Ware, 890 F.2d 1008, 1010-11 (8th Cir. 1989); see also United States v.
Principe, 499 F.2d 1135, 1137 (1st Cir. 1974) (holding that cabinet located three to
six feet from apartment was appurtenant thereto and properly searched). The search
was reasonable; at a minimum, the officers are entitled to qualified immunity for the
scope of their search.
Greg also challenges the district court’s dismissal of his claims against
prosecutors Knight and Rogers based on their alleged role in the seizure of his guns.
Greg presented no evidence, however, that the prosecutors were involved in drafting
or executing the search warrant, so they are not responsible for any constitutional
violations arising from the seizure of the weapons. See Parrish v. Ball, 594 F.3d 993,
1001 (8th Cir. 2010). In any event, even if Knight or Rogers played a role in the
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seizures, they would be entitled at least to qualified immunity for the same reasons
that the officers are not subject to suit. See Burns v. Reed, 500 U.S. 478, 486-87, 496
(1991).
C.
The Rodgerses argue that officials deprived them of property without due
process of law by retaining their firearms at the police department without a
post-deprivation hearing. The district court ruled that the guns were properly retained
because they were potential evidence in future court proceedings, and that officials
at a minimum were entitled to qualified immunity.
“[W]hen seizing property for criminal investigatory purposes, compliance with
the Fourth Amendment satisfies pre-deprivation procedural due process as well.”
Walters v. Wolf, 660 F.3d 307, 314 (8th Cir. 2011) (internal quotation marks omitted).
Where retention of evidence is justified by pending charges or an arrest warrant, no
further process is required. Id.; United States v. David, 131 F.3d 55, 59 (2d Cir.
1997). Likewise, if evidence is “needed for an ongoing or proposed specific
investigation,” law enforcement authorities are entitled to retain it. Sovereign News
Co. v. United States, 690 F.2d 569, 578 (6th Cir. 1982).
The criminal charge against Greg was pending or the subject of appellate
proceedings through April 30, 2013. Throughout that time, prosecutors and police
had a reasonable basis to retain the seized firearms as evidence that Greg unlawfully
possessed a firearm. Although some of the firearms belonged to Allan, they were
seized from a storage locker to which Greg had access, and it was reasonable for
officials to believe that they could be evidence of unlawful possession by Greg. All
but the Browning 9mm pistol were returned to Allan or Greg by the end of October
2012, before Greg’s criminal case was resolved, so the district court correctly
dismissed claims based on the retention of those firearms.
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Police returned the Browning pistol to Greg within three months after the state
supreme court refused to hear an appeal in Greg’s criminal case. Given the need for
information about legal proceedings to flow from the court to prosecutors to the
police department and the evidence custodian, retention for that relatively brief period
without further hearing was reasonable and thus did not violate the Constitution. Cf.
Walters, 660 F.3d at 310, 315 (holding retention after dismissal of charges was
unconstitutional deprivation where officials refused to return property until a court
order instructed them to do so); Lathon v. City of St. Louis, 242 F.3d 841, 843-44 (8th
Cir. 2001) (same). The prosecutors who instructed the officers to retain the guns as
evidence are entitled to absolute immunity. Thompson v. Walbran, 990 F.2d 403,
404-05 (8th Cir. 1993) (per curiam); see also Imbler, 424 U.S. at 430-31.
D.
The Rodgerses appeal the dismissal of claims based on the Second
Amendment. They argue that officers, and any prosecutor who directed them,
infringed their right to bear arms by seizing and retaining the firearms. Lawful
seizure and retention of firearms, however, does not violate the Second Amendment.
Indeed, this court has held that even the unlawful retention of specific firearms does
not violate the Second Amendment, because the seizure of one firearm does not
prohibit the owner from retaining or acquiring other firearms. Walters, 660 F.3d at
317-18. Greg also contends that the prosecutor defendants violated his right to bear
arms by urging the court to adopt a condition of release that forbade Greg to possess
a firearm. As the district court observed, the state court adopted the condition at the
urging of a prosecutor who is not a defendant, and, in any event, the defendant
prosecutors are absolutely immune from suit over their pleadings in the criminal case.
Imbler, 424 U.S. at 430-31. The district court correctly dismissed the Second
Amendment claims.

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E.
Greg Rodgers next argues that the district court erred in dismissing his claims
alleging that officers arrested him and caused him to be prosecuted in retaliation for
the exercise of his First Amendment right to freedom of speech. As of 2011, an
officer was entitled to qualified immunity against this type of retaliation claim if an
arrest or prosecution was supported by probable cause. Reichle v. Howards, 132 S.
Ct. 2088, 2096-97 (2012). The qualified immunity extends further to an action based
on at least “arguable” probable cause. McCabe v. Parker, 608 F.3d 1068, 1078-79
(8th Cir. 2010); Thayer v. Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012). For reasons
discussed in connection with Greg’s Fourth Amendment claims, a reasonable officer
in 2011 could have believed that there was probable cause to charge Greg with
unlawful use of a firearm based on carrying a concealed weapon or unlawful
possession of a firearm as a fugitive from justice. Therefore, the district court was
correct to dismiss the First Amendment claims against the officers. The prosecutors
are entitled to absolute immunity for their decision to prosecute Greg. See Imbler,
424 U.S. at 430-31.
F.
The Rodgerses dispute the district court’s grant of summary judgment for the
City of Columbia and Boone County on claims that they failed adequately to train
their employees. Greg argues that the municipalities failed to train police officers and
prosecutors regarding a citizen’s rights, under Mo. Rev. Stat. § 571.030.3, to carry a
concealed weapon in common areas of leased property, and about the validity in
Missouri of concealed carry permits issued in Florida.
A municipality may be liable under § 1983 for failure to train where (1) the
municipality’s training practices were inadequate; (2) the municipality was
deliberately indifferent to the constitutional rights of others, such that the “failure to
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train reflects a ‘deliberate’ or ‘conscious’ choice” by the municipality; and (3) an
alleged deficiency in the training procedures actually caused the plaintiff’s
constitutional injury. City of Canton v. Harris, 489 U.S. 378, 388-91 (1989);
Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996). Municipalities do not enjoy
qualified immunity, but a municipality “cannot exhibit fault rising to the level of
deliberate indifference to a constitutional right when that right has not yet been
clearly established.” Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir.
2007) (en banc). To establish municipal liability, a plaintiff must first show that an
individual defendant committed a constitutional violation. City of Los Angeles v.
Heller, 475 U.S. 796, 798-99 (1986).
Greg has not established a submissible claim that the municipalities were
deliberately indifferent to the rights of citizens to carry concealed weapons. It was
not clearly established that a citizen without a permit is permitted to carry a concealed
weapon in common areas of an apartment complex or other leasehold. The lack of
clarity regarding the scope of Mo. Rev. Stat. § 571.030.3 “undermines the assertion
that a municipality deliberately ignored an obvious need for additional safeguards.”
Szabla, 486 F.3d at 394.
The City of Columbia is not liable for failing to instruct officers that Florida
concealed carry permits are entitled to reciprocity, because any failure to do so did
not cause Greg’s arrest or prosecution. Greg has presented no evidence that the
arresting officer who recommended charges had prior knowledge that Greg was
issued a Florida permit, and it was not obvious that officers were required promptly
to investigate Greg’s assertion during his arrest that he was issued a Florida permit
that he did not carry on his person. The related allegation that Boone County failed
adequately to train prosecutors about reciprocity of permits is belied by the record.
The record shows that after Greg’s counsel notified the prosecutor that Greg had a
Florida permit, R. Doc. 69-9, at 2, the prosecutor amended the complaint to withdraw
the concealed carrying charge and to substitute the charge of unlawful possession by
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a fugitive from justice. R. Doc. 69-9, at 3. A “mere allegation of inadequate training
will not give rise to a genuine dispute of material fact on the subject.” Seymour v.
City of Des Moines, 519 F.3d 790, 801 (8th Cir. 2008).
G.
The Rodgerses argue finally that the district judge was not authorized as a
judge in senior status to preside over this case, and that the judge should have recused
herself. The claim that a senior judge lacks authority to adjudicate cases under
Article III is foreclosed by precedent. Williams v. Decker, 767 F.3d 734, 743 (8th
Cir. 2014). The recusal claims appear for the first time on appeal, so we review for
plain error, Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 663 (8th Cir. 2003), and
we find none. That the Rodgerses’ counsel filed a judicial complaint against the
district judge in previous, unrelated litigation is insufficient to establish that the
judge’s impartiality in this matter might reasonably be questioned. That the judge
formerly served as a municipal judge in Columbia likewise raises no reasonable
question about appearance of impartiality, and there is no evidence of bias.
III.
The Franklin appeal involves a prosecution of Raymond Franklin and a seizure
of firearms owned by Robert Franklin. In December 2008, federal and state law
enforcement officers sought to arrest a fugitive named Billy Rogers in a drug
trafficking investigation. They traced Rogers to Robert Franklin’s residence at 1670
Sonora Drive in Columbia. Officers asked Robert either to direct Rogers outside or
to allow officers to search the home. Robert refused, so officers secured a warrant
that authorized the search of Robert’s home for “evidence of drug trafficking” and the
arrest of Rogers.

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During the ensuing search, officers seized twelve firearms, including a Vulcan
.45 caliber handgun from a locked bedroom. The bedroom also contained pieces of
mail addressed to Raymond Franklin at 1670 Sonora Drive, a package with
Raymond’s name on it, and correspondence from the Circuit Court of Boone County
addressed to Raymond. Officers also seized drug paraphernalia and small quantities
of cocaine and marijuana from other locations in the home.
On June 30, 2010, Sergeant Geoffrey Jones executed a probable cause
statement for prosecutors alleging that Raymond Franklin, on the date of the search,
unlawfully possessed the Vulcan .45 as a previously convicted felon. See Mo. Rev.
Stat. § 571.070.1(1). A county prosecutor signed a criminal complaint alleging that
Raymond committed the offense, and Raymond was arrested. Raymond had been
convicted of a felony drug charge in 2007, and he moved from Missouri to North
Carolina in 2008 while serving a sentence of probation. After the 2010 arrest, a state
court revoked Raymond’s probation. In April 2011, Missouri prosecutors dismissed
the firearms charge against Raymond.
Robert’s firearms were held by the Columbia Police Department from
December 15, 2008, through August 23, 2012. On August 23, 2012, all but one gun,
a Remington Model 870, was released to Robert’s designee. The Remington had
been reported stolen, and police returned that firearm to its registered owner.
IV.
A.
Raymond Franklin argues that officers and prosecutors violated his Fourth
Amendment rights because they did not have probable cause to arrest and prosecute
him for unlawful possession of a firearm. The prosecutors are entitled to absolute
immunity for their initiation of the prosecution, see Imbler, 424 U.S. at 430-31, and
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the district court properly dismissed Franklin’s claim against them. One of the police
officer defendants, Kenneth Burton, was not involved in the arrest or prosecution, so
there is no merit to a claim against him.
As to Jones, the officer who prepared the probable cause statement submitted
with the warrant application for Raymond Franklin’s arrest, we conclude that there
was probable cause for the arrest and prosecution, and thus no violation of the Fourth
Amendment. A person commits the crime of unlawful possession of a firearm if he
has been convicted of a felony under Missouri law and knowingly possesses a
firearm. Mo. Rev. Stat. § 571.070.1(1). Possession may be actual or constructive,
and a person has “constructive possession” if he “has the power and the intention at
a given time to exercise dominion or control over the object either directly or through
another person or persons.” Mo. Rev. Stat. § 556.061(22). Constructive possession
does not require exclusive control or physical presence, and circumstantial
evidence—such as “finding defendant’s personal belongings” with firearms—can
establish possession. State v. Evans, 410 S.W.3d 258, 263 (Mo. Ct. App. 2013).
Police found the Vulcan .45 in a bedroom along with several pieces of mail
addressed to Raymond Franklin at 1670 Sonora Drive and a package with Raymond’s
name on it. This evidence was sufficient to establish probable cause that Raymond
constructively possessed the gun. Raymond argues that because his probation
supervision had been transferred to North Carolina, there could be no probable cause
that he possessed a firearm in Missouri, but out-of-state supervision alone did not
foreclose a prudent officer from suspecting based on circumstantial evidence that
Raymond was in Missouri nonetheless. There was probable cause to believe that
Raymond possessed the firearm as a convicted felon, and the arresting officer did not
violate Raymond’s Fourth Amendment rights.

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B.
The Franklins assert that police officers unlawfully seized firearms during the
search of Robert’s residence, because the warrant authorized only a search for
“[e]vidence of drug trafficking.” Firearms, however, are tools of the drug trafficking
trade, and officers with probable cause to search for drug trafficking evidence
reasonably could have determined that firearms in proximity to drugs or drug
paraphernalia were within the scope of the warrant. See United States v. Nichols, 344
F.3d 793, 798-99 (8th Cir. 2003) (per curiam). The firearms, moreover, were in plain
view within areas to which officers had lawful access, so whether or not the firearms
came within the terms of the warrant, the officers permissibly could seize the guns
based on probable cause that they were evidence of a crime. See Horton v.
California, 496 U.S. 128, 142 (1990). The district court properly granted summary
judgment for the prosecutor defendants on this claim, because there was no evidence
that they participated in the drafting, review, or execution of the search warrant. See
Parrish, 594 F.3d at 1001.
C.
Robert Franklin also argues that the officers and prosecutors deprived him of
property without due process of law by retaining his firearms without a
post-deprivation hearing. The district court ruled that the authorities properly
retained the guns as potential evidence in federal or state court proceedings, and that
officers and prosecutors were at a minimum entitled to qualified immunity.
The Columbia police officers retained the Vulcan .45 while unlawful
possession of a weapon charges were pending against Raymond. After the charge
was dismissed in April 2011, officers continued to retain the firearm pursuant to
prosecutor Richard Hicks’s recommendation that the Vulcan .45 would be needed as
evidence for refiling charges against Raymond. As to the other firearms, Officer
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Jones was advised that the guns may have been relevant evidence in a federal
investigation of a drug conspiracy involving Billy Rogers, and Jones communicated
with federal prosecutors about the status of the guns. Officer Jones ultimately
directed the police department to release the guns in August 2012 after a federal
prosecutor informed him that the guns were no longer needed for the federal
investigation.
This court has recognized a due process claim under § 1983 where police
officers refuse to return seized items to their owner without a court order after it is
determined that the items were not contraband or required as evidence in a court
proceeding. Lathon, 242 F.3d at 843-44. In this case, however, police retained the
firearms because federal and state prosecutors advised them that the guns were
potential evidence in ongoing criminal investigations, and there was a reasonable
basis for the officers to believe there was a legitimate investigative purpose for the
retention. At a minimum, the act of retaining the guns did not violate clearly
established law. The prosecutors are entitled to absolute immunity for recommending
that the Vulcan .45 be retained for Raymond’s prosecution and for the potential
refiling of charges. See Thompson, 990 F.2d at 404-05.
Robert Franklin further argues that the officers’ transfer of the Remington 870
shotgun to its registered owner violated procedures for the return of unclaimed seized
property, as set forth in Mo. Rev. Stat. § 542.301.1. “A violation of state law, without
more, is not the equivalent of a violation of the Fourteenth Amendment.” Meis v.
Gunter, 906 F.2d 364, 369 (8th Cir. 1990). Insofar as Robert argues that the transfer
of the shotgun without a post-deprivation proceeding violated his due process rights,
Robert has failed to present sufficient evidence that he had a property interest in the
shotgun. Robert was not the registered owner of the gun, the gun had been reported
stolen, and Robert testified in his deposition that he “[couldn’t] really say” if the gun
belonged to him. See generally Bd. of Regents v. Roth, 408 U.S. 564, 570 (1972).

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D.
Robert Franklin disputes the dismissal of his claim that officers arrested and
prosecuted his son Raymond in retaliation for Robert’s exercise of his First
Amendment right by withholding consent to search his home. But even assuming the
unlikely proposition that an arrest of Raymond could amount to a violation of
Robert’s rights under the First Amendment, see Smith v. Frye, 488 F.3d 263, 273 (4th
Cir. 2007), the district court correctly dismissed the claim against officers because
there was probable cause that Raymond constructively possessed the Vulcan .45
firearm in violation of Missouri law. See Reichle, 132 S. Ct. at 2096-97. The
prosecutors are entitled to absolute immunity for their decision to pursue the unlawful
possession charge. See Brodnicki, 75 F.3d at 1266. Raymond separately advances
a claim that officers and prosecutors arrested and prosecuted him because of his race.
This equal protection claim fails because Raymond presented no direct evidence of
racial discrimination or indirect evidence that similarly situated persons were treated
differently. See Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir. 2003).
E.
The Franklins appeal the dismissal of their claims against the City of Columbia
and Boone County for failure to train employees. The Franklins contend that the
district court erred in determining that the municipalities were not liable for failure
to train officers and prosecutors regarding the law of constructive possession, the
scope of search warrants, and the due process requirements for the retention of seized
evidence. Because we conclude that no official violated the constitutional rights of
the Franklins, the related claim for failure to train also fails. Heller, 475 U.S. at
798-99. At a minimum, the municipalities did not exhibit deliberate indifference by
ignoring an obvious need to train officials about respecting constitutional rights. See
Szabla, 486 F.3d at 393.

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Date Filed: 03/23/2015 Entry ID: 4257148

F.
Like the Rodgerses, the Franklins challenge the authority of the district judge
to preside as a judge in senior status, and they argue for the first time on appeal that
the judge should have recused herself. For reasons discussed with respect to the
Rodgers appeal, these points are without merit.
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The judgments of the district court are affirmed.
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Appellate Case: 14-1425

Page: 18

Date Filed: 03/23/2015 Entry ID: 4257148