¶1 After review and oral argument, and accepting Plaintiff-Appellee’s version of the facts at this interlocutory stage, we conclude Defendant-Appellant Sheriff Robert Smith, sued individually, has not shown reversible error in the district court’s order (dated October 29, 2009) which (1) denied qualified immunity as to Plaintiff-Appellee’s federal claims brought under 42 U.S.C. §§ 1983 and 1988 in Counts 4, 5, and 7, and (2) denied official immunity as to Plaintiff-Appellee’s state law claims in Counts 10, 11, 12, and 14. On appeal, we note Defendant-Appellant Smith did not present argument as to Counts 17 (attorneys’ fees) or 18 (punitive damages).
¶2 However, we reverse the district court’s denial of qualified immunity to Defendant-Appellant Smith on the §§ 1983 and 1988 federal claims in Count 1 to the extent that count alleges a separate substantive due process claim under solely the Fourteenth Amendment because that count fails to state a separate constitutional violation.
¶3 There is a factual issue about whether Harper was acting on his own or at Sheriff Smith’s direction and as his agent, which impacts certain counts - in the Amended and Restated Complaint. To the extent an election, if any, is needed between differ *629 ent counts, we leave that issue to the district court in the first instance.
¶4 AFFIRMED IN PART, REVERSED IN PART AND REMANDED.