152394P.pdf   09/12/2016  Zackary Stewart  v.  Karl Wagner
   U.S. Court of Appeals Case No:  15-2394
   U.S. District Court for the Western District of Missouri - Springfield   
   [PUBLISHED] [Loken, Author, with Riley, Chief Judge, and Benton, Circuit 
   Judge] 
   Civil case - Civil rights. In action alleging defendants violated 
   plaintiff's civil rights in connection with a murder prosecution in which 
   a retrial ordered by the Missouri Supreme Court was dropped after another 
   person confessed to the murder, the district court denied defendants' 
   motions for summary judgment based on qualified immunity; held: (1) the 
   district court applied the wrong standard in determining whether plaintiff 
   had established the requisite mens rea for his claim that defendants 
   Wagner and Choate violated his right to due process under Brady when they 
   caused the prosecution not to disclose evidence favorable to his defense; 
   while a prosecutor's duty to disclose is absolute, to recover damages from 
   other law enforcement officers, a section 1983 plaintiff must show that 
   these other law enforcement officers intended to deprive the defendant of 
   a fair trial, and the district court erred in adopting the amorphous "bad 
   faith" mens rea standard set out in White v. McKinley, 519 F.3d 806 
   (2008), rather than the more precise standard set out in the earlier 
   controlling case of Villasana v. Wilhoit, 368 F.3d 976 (8th Cir. 2004); 
   (2) with respect to plaintiff's claim that Prosecutor Selby and Detective 
   Wagner procured fabricated statements to create probable cause, the claim 
   should have been evaluated under the Fourth Amendment rather than under a 
   substantive due process analysis; on this record it was error to deny 
   Prosecutor Selby qualified immunity on this claim because plaintiff failed 
   to present sufficient evidence that Wagner and Selby violated clearly 
   established Fourth Amendment rights of which a reasonable person would 
   have known; (3) with respect to plaintiff's claim that Wagner and Selby 
   violated his Sixth and Fourteenth Amendment right to counsel when they 
   obtained a false confession through the use of jailhouse informants, the 
   defendants were entitled to qualified immunity as there are no Section 
   1983 precedents giving the defendants fair and clear warning of what the 
   Constitution requires; further plaintiff has failed to put into the 
   summary judgment record evidence of whether his attorney in the criminal 
   matter moved to suppress or exclude the statements by the informants 
   because it was obtained in violation of the Sixth Amendment, whether such 
   a motion was granted or denied and, if denied, whether the issue was 
   pursued on appeal.