Matthew Livers v. Tim Dunning ( 2012 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-1877
___________________________
Matthew Livers
lllllllllllllllllllll Plaintiff - Appellee
v.
Earl Schenck, Cass County Sheriff’s Investigator;
William Lambert, Nebraska State Patrol Investigator;
Charles O’Callaghan, Nebraska State Patrol Investigator;
Sandra Weyers, Cass County Sheriff’s Sergeant;
County of Cass, Nebraska;
David Kofoed, Commander of the Douglas County
Sheriff’s Office Crime Scene Investigation Division
lllllllllllllllllllll Defendants
Tim Dunning, Sheriff of Douglas County
lllllllllllllllllllll Defendant - Appellant
County of Douglas, Nebraska
lllllllllllllllllllll Defendant
___________________________
No. 11-1879
___________________________
Matthew Livers
lllllllllllllllllllll Plaintiff - Appellee
v.
Earl Schenck, Cass County Sheriff’s Investigator
lllllllllllllllllllll Defendant - Appellant
William Lambert, Nebraska State Patrol Investigator;
Charles O’Callaghan, Nebraska State Patrol Investigator
lllllllllllllllllllll Defendants
Sandra Weyers, Cass County Sheriff’s Sergeant
lllllllllllllllllllll Defendant - Appellant
County of Cass, Nebraska;
David Kofoed, Commander of the Douglas County
Sheriff’s Office Crime Scene Investigation Division;
Tim Dunning, Sheriff of Douglas County;
County of Douglas, Nebraska
lllllllllllllllllllll Defendants
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___________________________
No. 11-1880
___________________________
Matthew Livers
lllllllllllllllllllll Plaintiff - Appellee
v.
Earl Schenck, Cass County Sheriff’s Investigator
lllllllllllllllllllll Defendant
William Lambert, Nebraska State Patrol Investigator;
Charles O’Callaghan, Nebraska State Patrol Investigator
lllllllllllllllllllll Defendants - Appellants
Sandra Weyers, Cass County Sheriff’s Sergeant;
County of Cass, Nebraska;
David Kofoed, Commander of the Douglas County
Sheriff's Office Crime Scene Investigation Division;
Tim Dunning, Sheriff of Douglas County;
County of Douglas, Nebraska
lllllllllllllllllllll Defendants
-3-
___________________________
No. 11-1917
___________________________
Nicholas Sampson
lllllllllllllllllllll Plaintiff - Appellee
v.
Investigator William Lambert, in his official and individual capacities;
Investigator Charles O’Callaghan, in his official and individual capacities
lllllllllllllllllllll Defendants
Sergeant Sandy Weyers, in her official and individual capacities
lllllllllllllllllllll Defendant - Appellant
Cass County Sheriff’s Office, a Nebraska political subdivision;
Does 1-8, in their official and individual capacities
lllllllllllllllllllll Defendants
Investigator Earl Schenck
lllllllllllllllllllll Defendant - Appellant
Douglas County Sheriff’s Office;
David W. Kofoed, in his official and individual capacities
lllllllllllllllllllll Defendants
-4-
___________________________
No. 11-1918
___________________________
Nicholas Sampson
lllllllllllllllllllll Plaintiff - Appellee
v.
Investigator William Lambert, in his official and individual capacities;
Investigator Charles O’Callaghan, in his official and individual capacities
lllllllllllllllllllll Defendants - Appellants
Sergeant Sandy Weyers, in her official and individual capacities;
Cass County Sheriff’s Office, a Nebraska political subdivision;
Does 1-8, in their official and individual capacities;
Investigator Earl Schenck;
Douglas County Sheriff’s Office;
David W. Kofoed, in his official and individual capacities
lllllllllllllllllllll Defendants
____________
Appeals from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: February 16, 2012
Filed: November 8, 2012
____________
Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
____________
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RILEY, Chief Judge.
Cousins Matthew Livers and Nicholas Sampson were arrested and jailed
awaiting trial for the murders of Sharmon and Wayne Stock after Livers confessed
to the murders and implicated Sampson as an accomplice. Later, the charges against
Livers and Sampson were dropped. They separately sued individual officials and
municipal entities involved in the investigation, citing 42 U.S.C. § 1983 and alleging
numerous constitutional violations. Several of the individual defendants appeal from
the district court’s denials of their motions for summary judgment based on qualified
immunity. The appeals have been consolidated. We affirm in part, reverse in part,
and remand for further proceedings.
I. BACKGROUND
A. Factual Background1
The Stocks were brutally murdered by close-range gunshots. The murders
occurred in the Stocks’ home near Murdock, Nebraska, before dawn on April 17,
2006. Members of the Cass County Sheriff’s Office (CCSO), Nebraska State Patrol
(NSP), and Douglas County Crime Scene Investigation Unit (DCCSI), a division of
the Douglas County Sheriff’s Office (DCSO), participated in the Stock homicide
investigation.
At the crime scene, the investigators observed a human figure silhouetted in the
blood spray, which suggested the presence of at least two intruders, “[o]ne to do the
shooting and one to be silhouetted by the spray.” The investigators concluded the
attackers made a forced entry because a window appeared to be tampered with. The
investigators also discovered various items of physical evidence, including a ring and
a gray or silver flashlight.
1
We recite the facts in the light most favorable to Livers and Sampson, the non-
moving parties. See Fed. R. Civ. P. 56(a), (e).
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Based upon interviews CCSO Investigator Earl Schenck and Sergeant Sandra
Weyers (Cass appellants) conducted with the Stocks’ relatives, the investigators
identified the Stocks’ nephew, Livers, as a suspect. Some of these relatives reported
Livers and the Stocks had argued and Sharmon Stock feared Livers. Livers is
mentally retarded.2 Between April 18 and 20, Sergeant Weyers, Investigator
Schenck, and NSP Investigator William Lambert were told Livers was “mentally off,”
“slow,” “different,” and “immature for his age.”
Investigators became suspicious after learning Will Sampson’s (Will) car, a
light brown, four-door Ford Contour, was detail cleaned on the day of the
murders—April 17. Will is Sampson’s brother. With Will’s consent, the
investigators searched Will’s car and the vacuum bags from the auto detail shop.
Neither the car nor the vacuum bags contained blood or other incriminating evidence.
Between April 17 and April 21, witnesses reported to the investigators that they saw
a light brown or tan four-door car with an “O” on the license plate parked near the
Stocks’ house on the morning of the murders. Will’s car did not have an “O” on the
license plate.
1. Livers Confesses, Then Recants
On April 17, 2006, Livers spoke to Investigators Schenck and Lambert and
agreed to take a polygraph examination to “clear [his] name” of suspicion. On April
25, Investigators Schenck and Lambert drove Livers from his home to the Cass
County Law Enforcement Center. They escorted Livers into a small, windowless
room Livers described as uncomfortably cold. There is no indication Livers
consulted with an attorney or other advisor during any of the April 25 interrogations.
Though Livers told the investigators he had not eaten that day, he was not offered
2
Livers’ IQ measures in the bottom 1-2% of the adult population. He attended
special education classes in school.
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food until 7:24 p.m., more than ten hours after he arrived at the Law Enforcement
Center.
Livers’ first interview of the day began around 9:00 A.M. During this
interview, Investigators Schenck and Lambert told Livers he could leave, but Livers
agreed to stay and take a polygraph examination. Livers now asserts he did not
understand he could leave or choose not to take the polygraph examination.3
After Livers had been speaking with Investigators Lambert and Schenck for
nearly two hours, NSP Investigator Charles O’Callaghan entered the room and told
Livers to put his keys and cell phone on a table. Investigator O’Callaghan took
Livers to another room, advised Livers of his rights under Miranda, and administered
a polygraph examination in which he questioned Livers about the murder of Wayne
Stock. Livers repeatedly denied involvement. After the examination, Investigator
O’Callaghan left the room. When Investigator O’Callaghan returned, he accused
Livers of murdering the Stocks, claiming the polygraph left “no doubt” Livers had
done so. A polygraph expert later testified the examination’s design and
implementation were so flawed that it could not reliably indicate whether Livers was
being truthful.
After Investigator O’Callaghan left the room for a second time, Investigators
Schenck and Lambert entered and resumed questioning Livers. They told Livers his
polygraph results were “off the charts,” repeatedly accused Livers of murdering the
Stocks, and discounted Livers’ protestations of innocence, sometimes with a loud
voice. For example, Investigator Lambert told Livers, “You’re full of s[---]. You did
3
A forensic psychologist who reviewed the interviews and other materials
concerning Livers concluded “it is not entirely clear to what degree Mr. Livers
understood his Miranda [v. Arizona, 384 U.S. 436 (1996),] warning.” (underline
added).
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too [kill the Stocks].” They repeatedly told Livers they would help him if he
confessed, and suggested his execution if he did not. Investigator Schenck said:
If you don’t admit to me exactly what you’ve done, I’m going to walk
out that door and I am going to do my level best to hang you’re a[--]
from the highest tree. . . . I will go after the death penalty. I’ll push and
I’ll push and I’ll push and I will do everything I have to, to make sure
you go down hard for this.
Investigator Lambert told Livers he could not leave, saying, “Do you think you are
going to get on a bus and you are going to leave? You are going to leave us? No,
you’re not.” Later, but still before Livers confessed, Livers said he wanted to go
home, but believed he could not do so. The investigators did not contradict this
statement.
Livers denied involvement in the murders more than eighty times before he
began to agree with the investigators’ accusations. At 3:28 P.M., approximately six
and a half hours after Livers began speaking to the investigators, Livers began to
confess he murdered the Stocks.4 Investigators Lambert and Schenck obtained the
confession almost entirely through Livers’ responses to leading, yes-or-no questions,
for example, supplying Livers with information about the physical evidence.
Inv. Schenck: And [Sharmon Stock] was trying to get on the phone,
wasn’t she?
Livers: I guess.
Inv. Schenck: Did she have the phone in her hand?
Livers: Mmm, don’t remember.
4
The Cass appellants contend Livers confessed earlier, when he responded, “I
didn’t do it by myself,” to the directive,“If you did it by yourself, then stand up and
say so.” A jury could infer Livers meant by this that he did not commit the murders
at all, especially in view of Livers’ other eighty denials.
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Inv. Schenck: You don’t remember. But you got pretty close to Aunt
Sharmon, didn’t you?
Livers: Right, I guess, I don’t know.
When Investigator Schenck asked an open-ended question, “What happened after you
fired that first shot?” Livers did not respond, remaining silent for several moments
before Investigator Schenck resumed asking leading questions. Many of Livers’
answers were “I don’t know,” “I guess,” or “I’m not sure.” Sampson’s name entered
the confession when Investigator Schenck suggested Livers must have received the
keys to Will’s car from someone who had access to them. Livers responded that
Sampson gave him the keys. Livers then agreed with Investigator Schenck’s
suggestion Sampson provided the shotgun and ammunition.
A forensic psychologist who viewed the DVDs of Livers’ interrogation
concluded some of Livers’ behavior during the interrogations may have indicated his
mental impairment. For example, when Livers was told to “stand up” (confess) if he
were a man, he literally stood up from his chair. In addition, Livers told Investigators
Lambert and Schenk he was “dumb as a brick.” Investigator Schenck later admitted
Livers “appeared to be having difficulty understanding some of the questions” and
“appeared to be a person who would understand simpler questioning.”
The next day, April 26, Investigators Lambert and Schenck interrogated Livers
again. Investigator Schenck later testified, “at this point Mr. Livers ha[d] been
arrested and there[ was] no doubt that he[ was] in custody.” The investigators used
leading questions to get Livers to revise his confession to place Sampson in the
Stocks’ house during the murders. Livers previously had claimed Sampson did not
enter the Stocks’ house, which conflicted with the blood splatter pattern indicating
two assailants. Livers consented to another polygraph, but then told Investigator
O’Callaghan, “I was never on the scene. I don’t know if [Sampson] is the actual
person involved in this. I’ve been just making things up to satisfy you guys
-10-
and . . . basically, fitting an answer to what you guys have been asking.” Both Livers’
confession and his recantation were video recorded.5
Cass County Attorney Nathan Cox approved murder charges against Livers and
Sampson after learning Livers had confessed and implicated Sampson.
2. Sampson is Arrested
Based on Livers’ confession, Investigator Schenck arrested Sampson on April
25, 2006. Investigator Schenck did not seek or obtain a warrant before arresting
Sampson. Sampson met with Sergeant Weyers and Investigator Lambert on April 26,
2006. During this meeting, Sampson waived his right to an attorney and agreed to
take a polygraph examination. The polygraph examination indicated Sampson was
being deceptive.
3. Investigation Continues
The Stock homicide investigation continued for months after Sampson’s arrest
and led investigators to evidence in several different states. The DCCSI, headed by
Commander David Kofoed, did the forensic work for the investigation. Sheriff
Dunning left “hands-on” supervision of the DCCSI to Commander Kofoed. “The
purpose of the [DCCSI] is to identify, document, collect, and preserve evidence from
crime scenes,” as well as “examin[e] and process[] evidence utilizing scientifically
accepted methods and procedures.”
The Cass appellants, Investigators Lambert and O’Callaghan (NSP appellants),
and Commander Kofoed met several times to coordinate the investigation, both
before and after Livers confessed. During the investigation, Investigators Schenck
and Lambert frequently visited the DCCSI, asking DCCSI employees to reprocess
5
Investigator Lambert stated in an undated report that Investigator O’Callaghan
claimed Livers’ recantation was not recorded because of an equipment malfunction.
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items whose initial testing had not linked Livers or Sampson to the crimes. One
DCCSI employee reported feeling “pressured” to “find something.”
Some of the physical evidence failed to support Livers’ confession. For
example, Livers confessed to using one of Sampson’s guns to shoot the Stocks, but
a search of Sampson’s guns did not produce any incriminating evidence. Livers
described using green or black shotgun shells, but the investigators discovered a red
shotgun shell at the Stocks’ home. Livers also claimed he entered through an
unlocked door, but investigators found signs of a forced window entry. Finally,
Livers said Sampson had used a red or yellow flashlight, rather than a gray flashlight
like investigators found in the driveway of the Stocks’ house.
Although the April 19 search of Will’s car did not reveal any incriminating
evidence, Commander Kofoed and Investigator C.L. Retelsdorf examined the car
again on April 27, 2006. Commander Kofoed claimed that, during this search, he
took a swab from under the dashboard that tested presumptively positive for human
blood. Investigator Retelsdorf did not find any blood when he retested the area.
Investigator Retelsdorf reported the results of examining the car, without mentioning
Commander Kofoed’s purported positive finding.
On May 8, 2006, Commander Kofoed reported his April 27 swab of Will’s car,
falsely claiming he took the swab on May 8, and failing to mention Investigator
Retelsdorf’s negative swab. Lab analysis revealed the blood was Wayne Stock’s.
Commander Kofoed later claimed the incorrect date on his report was a mistake.
When Commander Kofoed told Captain Dean Olson about the incorrect date, they
agreed Commander Kofoed should not correct the report, but should tell the
prosecutor when the case was tried. Sheriff Dunning did not learn of this
conversation until March 2008, more than one year after the charges against Livers
and Sampson were dismissed.
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In May 2006, Investigator Lambert and a DCCSI investigator traced an
inscribed ring found in the Stocks’ home to a truck stolen by Jessica Reid and
Gregory Fester, two Wisconsin teenagers. Investigators found Reid’s and Fester’s
DNA on the ring. Other physical evidence also connected Reid and Fester to the
Stock murders.
After being confronted with the evidence against them, Reid and Fester
admitted to involvement in the murders, each naming the other as the shooter and at
first claiming only the two of them were involved. Investigators Schenck and
Lambert promised Reid and Fester leniency if they admitted others were involved in
the crime and threatened them with more severe punishment, including suggesting
Reid might receive the death penalty, if they did not. Reid was shown pictures of
Livers and Sampson. Eventually, both Reid and Fester changed their stories to
implicate two other men, though Reid recanted this version within forty-eight hours.
There was no other evidence linking Reid and Fester to Livers or Sampson.
Sergeant Weyers and Investigator O’Callaghan traveled to Texas and
interviewed Ryan Paulding, a friend of Livers. During a July 6, 2006 interview,
Paulding denied knowing of any plan to murder the Stocks. Paulding changed his
story after failing a polygraph examination given by the Mansfield, Texas, Police
Department. Paulding told officers that Livers had told Paulding he planned to kill
the Stocks.
The next day, July 7, 2006, another polygraph examination indicated Paulding
was being deceptive when he denied “know[ing] anyone from Wisconsin as being
involved in killing the Stocks.” Paulding again met with law enforcement, possibly
Sergeant Weyers and Investigator O’Callaghan. At first, Paulding repeatedly denied
knowing anyone from Wisconsin. An officer told Paulding she did not believe
Paulding (1) told the investigators all he knew about the murders, and (2) did not
know anyone from Wisconsin. One of the officers threatened to charge Paulding as
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an accessory to murder or a co-conspirator because he was not cooperating. After
about twenty minutes, Paulding said some people from Wisconsin might have come
to the airport where Paulding worked. After Paulding’s interview, Paulding’s father
told the Texas Ranger with whom the Nebraska investigators had been working that
Paulding had an IQ of 706 and the maturity level of a fifteen-year-old.
4. Livers’ and Sampson’s Charges are Dropped
In June or July of 2006, Commander Kofoed told the Omaha World-Herald
newspaper that his finding of Wayne Stock’s blood in Will’s car may have resulted
from cross-contamination. Sampson remained incarcerated until the charges against
him were dismissed on October 6, 2006. On December 5, 2006, Cass County
Attorney Cox dismissed the charges against Livers, which Cox said rested on Livers’
confession and Commander Kofoed’s claimed finding of Wayne Stock’s blood in
Will’s car, noting a forensic psychologist concluded Livers “may have been coerced
into a confession.” Reid and Fester pled guilty to the murders in March 2007 and
received life sentences.
5. Allegations of Misconduct Against Commander Kofoed
DCCSI employee Darnel Kush claimed she suspected in October 2006 that
Commander Kofoed was planting fingerprints at crime scenes, though she did not
communicate this concern to her supervisors.7 Kush eventually reported her concern
about Commander Kofoed’s evidence tampering to the FBI.
6
“[A]n IQ of 70 or less indicates mental retardation.” Stedman’s Medical
Dictionary 1680 (28th ed. 2006).
7
Kush claims she did not report this suspicion to her supervisors because they
reacted negatively to Kush’s earlier complaints that Commander Kofoed “created a
negative environment,” impugned Kush’s “reputation and . . . honor,” and forged a
letter of commendation for himself.
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The FBI informed Sheriff Dunning in 2008 it was investigating allegations
Commander Kofoed was tampering with evidence. Sheriff Dunning asserts this is the
first he learned about possible problems with evidence tampering by Commander
Kofoed. After learning of the FBI’s investigation, Sheriff Dunning placed
Commander Kofoed on administrative leave and initiated an Internal Affairs (IA)
investigation of Commander Kofoed’s conduct in the Stock murder investigation.
The IA investigation concluded “there is no evidence to prove KOFOED planted the
blood. On the contrary, there are mitigating circumstances . . . suggesting cross-
contamination.” The investigators did note “some ‘administrative lapses’ by
KOFOED regarding the timeliness of reports and a chain-of-custody issue.”
Commander Kofoed told the IA investigators he suspected cross-contamination
occurred.
In March 2010, Commander Kofoed was convicted on state charges of felony
tampering with physical evidence. Commander Kofoed was also charged with—and
ultimately acquitted of—several violations of federal law based on his conduct in the
Stock homicide investigation. There are allegations Commander Kofoed may have
tampered with evidence in other cases, though there is no indication in this record
Sheriff Dunning knew of this possibility until after the charges against Livers and
Sampson were dismissed.
B. Procedural History
1. Livers
Livers sued, among others, the Cass appellants, the NSP appellants, and
Dunning under 42 U.S.C. § 1983. Livers alleged the Cass and NSP appellants
conspired with each other, Sheriff Dunning, Commander Kofoed, and others to
violate Livers’ civil rights, namely his (1) Fifth and Fourteenth Amendment rights to
due process by coercing Livers’ confession, planting blood evidence in Will’s car,
coercing Fester and Reid into implicating Livers in the crime, and attempting to
coerce Paulding into saying Livers admitted to killing the Stocks; (2) Fourth and
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Fourteenth Amendment rights by arresting Livers without probable cause; and
(3) Fifth and Fourteenth Amendment rights to due process by concealing exculpatory
evidence. Livers alleged the Cass appellants and NSP appellants further violated his
constitutional rights by failing to intervene to prevent the other alleged constitutional
violations.
Livers also claims Sheriff Dunning is liable for (1) causing Commander
Kofoed to falsify a chain of custody for the blood evidence Commander Kofoed
claimed to find in Will’s car by his policies, his failure to train and supervise DCCSI
personnel properly, and his failure to discipline Commander Kofoed; (2) failing to
train his employees to disclose exculpatory evidence (of Commander Kofoed’s
wrongdoing), in violation of the Fifth and Fourteenth Amendments and Brady v.
Maryland, 373 U.S. 83, 87 (1963); (3) conspiring with the Cass appellants, NSP
appellants, and Commander Kofoed to violate Livers’ civil rights; and (4) failing to
intervene to prevent the alleged constitutional violations.
The Cass appellants, NSP appellants, and Sheriff Dunning moved for summary
judgment based on qualified immunity. After discussing the two-step qualified
immunity inquiry, the district court denied summary judgment because it found
genuine issues of material fact. Appellants appeal.
2. Sampson
Sampson sued, among others, the Cass appellants and NSP appellants, claiming
they (1) fabricated evidence to create the appearance of probable cause in violation
of the Fourteenth Amendment’s due process clause; (2) caused Sampson’s arrest
without probable cause in violation of the Fourth and Fourteenth Amendments;
(3) conspired with each other, Commander Kofoed, and others to violate Sampson’s
civil rights; and (4) suppressed exculpatory evidence, in violation of the Fifth and
Fourteenth Amendment rights to due process, as explained in Brady, 373 U.S. at 86-
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87.8 The district court denied the appellants’ motions for summary judgment based
on qualified immunity in an order that was nearly identical to the order denying
summary judgment in Livers’ case. Appellants appeal. Livers’ and Sampson’s cases
were consolidated for appeal.
II. DISCUSSION
Appellants are entitled to qualified immunity unless (1) they violated a federal
constitutional or statutory right belonging to Livers or Sampson (2) that was clearly
established at the time of the violation, such that reasonable officials in appellants’
positions would have known that they were violating that right. See Saucier v. Katz,
533 U.S. 194, 201-02 (2001). We may analyze the two prongs of this test in any
order. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“[A]n order denying qualified immunity is immediately appealable even
though it is interlocutory; otherwise it would be effectively
unreviewable.” Scott v. Harris, 550 U.S. 372, 376 n.2 (2007) (internal
quotation omitted). However, this rule has limitations. A defendant may
appeal an order denying summary judgment based on qualified immunity
only “to the extent that it turns on an issue of law.” Fields v. Abbott, 652
F.3d 886, 889-90 (8th Cir. 2011). A defendant may not appeal an order
“insofar as that order determines whether or not the pretrial record sets
forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304,
320 (1995). This latter order is not deemed a “final decision,” and thus
appellate courts lack jurisdiction to hear such evidentiary-based appeals.
Id. at 313; see also 28 U.S.C. § 1291 (“The courts of appeals . . . shall
have jurisdiction of appeal from all final decisions of the district courts
of the United States . . . .” (emphasis added)).
Jones v. McNeese, 675 F.3d 1158, 1160-61 (8th Cir. 2012) (internal citations altered).
8
Sampson also asserted violations of the First, Eighth, and Ninth Amendments,
but he has not pursued these arguments on appeal.
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In reviewing a district court’s denial of summary judgment based upon
qualified immunity, we
accept[] as true the facts that the district court specifically found were
adequately supported, along with those facts that the district court likely
assumed. Where there are questions of fact the district court did not
resolve, we determine the facts that it likely assumed by viewing the
record favorably to the plaintiff as in any other summary judgment
motion.
Brown v. Frontner, 518 F.3d 552, 557-58 (8th Cir. 2008) (quoting Lockridge v. Bd
of Trs. of the Univ. of Ark., 315 F.3d 1005, 1008 (8th Cir. 2003) (en banc)). Because
the district court in the present cases did not make specific findings on every issue,
we are compelled to search the record, “to determine what facts the district court . . .
likely assumed.” Johnson, 515 U.S at 319. “As with any summary judgment motion,
while we are required to make all reasonable inferences in favor of the non-moving
party, we do not resort to speculation.” Brown, 518 F.3d at 558.
The Cass appellants contend we can decide whether a dispute is genuine by
finding certain evidence insufficiently probative, citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986). To the extent Anderson supports this conclusion,
Anderson was clarified and limited by Johnson, 515 U.S. at 320, as we recognized in
Jones, 675 F.3d at 1160-61. “With respect to the legal issue[s] presented, we review
the district court’s denial of summary judgment de novo.” Jones, 675 F.3d at 1161.
A. Individualized Analysis
The NSP appellants argue the district court erred by “lump[ing]” together all
of the defendants instead of analyzing qualified immunity on an individual basis. The
district court often did not specify which acts of which defendant required denying
qualified immunity. The district court’s opinion provides a clear enough basis for our
analysis because the district court discussed the two steps of the qualified immunity
analysis and found genuine issues of material fact. See id. at 1163 (remanding
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“because the [district court’s] analysis [was] so scant that [the appellate court was]
unable to discern if the district court even applied both steps of the qualified
immunity inquiry to all of the summary judgment claims”). When a district court
does not state the facts it assumed as true, we “review . . . the record to determine
what facts the district court, in the light most favorable to the nonmoving party, likely
assumed.” Johnson, 515 U.S. at 319; see Brown, 518 F.3d at 558. We now examine
the record to determine whether each appellant is entitled to qualified immunity on
each claim of each plaintiff.
B. Fifth Amendment Due Process
The district court erred in denying qualified immunity on Livers’ and
Sampson’s Fifth Amendment due process claims because that amendment only
restrains the federal government and none of the appellants are federal employees.
See Baribeau v. City of Minneapolis, 596 F.3d 465, 484 (8th Cir. 2010).9
C. Coerced Confession and Evidence Fabrication
Intentionally or recklessly failing to investigate other leads or manufacturing
false evidence may shock the conscience and can violate the Fourteenth
Amendment’s due process clause. See Winslow, __ F.3d at __, __, 2012 WL
4856169, at *11; Wilson v. Lawrence Cnty., Mo., 260 F.3d 946, 955-57 (8th Cir.
2001). We have referenced areas of “reckless investigation,” which include: (1)
coercing a suspect’s confession; (2) “purposely ignor[ing] evidence suggesting . . .
innocen[ce]”; and (3) “systemic pressure to implicate [a suspect] in the face of
evidence to the contrary.” Amrine v. Brooks, 522 F.3d 823, 833-35 (8th Cir. 2008)
9
Livers and Sampson were not tried. A Fifth Amendment violation of their
protection against self-incrimination, based upon a coerced confession, only arises
when the coerced statements are used in the criminal case. See Chavez v. Martinez,
538 U.S. 760, 767 (2003) (plurality opinion); id. at 779 (Souter, J., concurring in the
judgment); Winslow v. Smith, __ F.3d __, __, Nos. 11-2882, 11-2883, 11-2884, 11-
2903, 2012 WL 4856169, at *10 n.4 (8th Cir. Oct. 15, 2012).
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(citing Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc) (Moran I), and
Wilson, 260 F.3d at 955-56). Negligence and even gross negligence is not enough
because the state action must be “truly egregious and extraordinary” to shock the
conscience, Winslow, __ F.3d at __, __, 2012 WL 4856169, at *15 (quoting Strutton
v. Meade, 668 F.3d 549, 557 (8th Cir. 2012)) (internal quotation marks omitted), and
so severe as to amount to “brutal and inhumane abuse of official power,” id. (quoting
Golden ex rel. Balch v. Anders, 324 F.3d 650, 653 (8th Cir. 2003)) (internal quotation
marks omitted). The “reckless[ness] standard normally contains a subjective
component.” Wilson, 260 F.3d at 956 n.9. Law enforcement “must be faithful to the
overriding interest that ‘justice shall be done.’” Id. at 957 (quoting United States v.
Agurs, 427 U.S. 97, 110-11 (1976)).
The district court found “a showing that evidence was fabricated,” as well as
some evidence Livers’ confession was coerced and appellants failed to investigate
other leads. The district court noted whether appellants were sufficiently culpable to
be liable under § 1983 was a fact question for the jury. We generally agree.
1. Cass Appellants and NSP Appellants
a. Livers’ Confession
i. Livers’ Claim
Livers claims the Cass appellants and NSP appellants are liable for coercing
his confession. Coercing a confession violates the Fourteenth Amendment’s Due
Process Clause. See Wilson, 260 F.3d at 952. Whether particular interrogation
techniques are unconstitutionally coercive depends on the totality of the
circumstances, including the officers’ conduct and the accused’s characteristics. See
id. at 952-53. In Wilson, we determined officers violated the clearly established due
process rights of a mentally retarded man when they (1) had reason to know Wilson
was mentally retarded; (2) interrogated him for over four hours; (3) never left him
alone; (4) interrogated him without any friend, relative, or advisor present; (5) falsely
claimed they had strong incriminating evidence; (6) promised leniency if Wilson
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confessed and said Wilson would be found guilty if he did not; (7) “used threatening
tones and language”; (8) refused to accept Wilson’s protestations of innocence,
threatening to use them to secure harsher penalties; and, (9) “[o]f particular concern,”
obtained the confession using leading questions that provided details about the crime.
Id.Here, the district court refused to grant qualified immunity on Livers’
confession claim, citing evidence Livers’ confession was coerced and “some dispute
about whether or when the defendants knew or should have known of [Livers’]
mental deficiencies.”
As in Wilson, there is evidence Livers is mentally retarded and Investigators
Lambert, Schenck, and O’Callaghan knew or should have known Livers was mentally
retarded.10 A forensic psychologist opined Livers showed signs of mental retardation
during the interrogation. For example, when Livers was told to “stand up” if he were
a man, he literally stood up from his chair. Livers told Investigators Lambert and
Schenk he was “dumb as a brick.” Investigator Schenck admitted Livers “appeared
to be having difficulty understanding some of the questions,” and the investigators
were told before the April 25 interrogation of Livers that Livers was “slow,”
“different,” “mentally off,” and “immature for his age.”
10
The NSP appellants contend there is no fact issue because the veracity of the
DVDs of Livers’ confession are undisputed. Though the veracity of the DVDs is
undisputed, conflicting inferences can be drawn from the actions and statements
recorded therein, and the parties dispute both the extent of Livers’ mental impairment
and appellants’ knowledge of it. We must view the evidence in the light most
favorable to Livers and make all reasonable inferences in his favor. See Johnson, 515
U.S. at 319. To the extent appellants contend any issue of fact is not genuine, we
cannot reach this issue. See id. at 319-20.
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Investigators Schenck, Lambert, and O’Callaghan interrogated Livers for
approximately six and a half hours before Livers confessed, significantly longer than
Wilson’s four-hour interrogation. See id. at 952. Like Wilson, Livers did not have
an attorney, relative, or other advisor present during the interviews. The investigators
told Livers the polygraph irrefutably indicated Livers’ guilt. Investigators promised
to help Livers if he confessed and told Livers he would be executed if he did not.
Investigators Schenck and Lambert ridiculed Livers’ protestations of innocence,
which they threatened to use against Livers. In doing so, the investigators “used
threatening tones and language.” See id. at 953. Livers denied knowledge of or
involvement in the murders more than eighty times before he began to confess.
Investigators Lambert and Schenck obtained Livers’ confession almost entirely
through the use of leading questions that provided the details about the murders.
The NSP appellants attempt to distinguish Wilson, noting the officers picked
up Wilson “under the pretense of having him identify a lost wallet,” id. at 950,
whereas Livers consented to giving an interview and taking a polygraph exam. This
distinction is significant, but these are fact issues and do not directly affect our
qualified immunity legal determination. Although Livers, like Wilson, was advised
of his Miranda rights, “[a]dvising a suspect of his rights does not automatically mean
that any subsequent confession is voluntary . . . , particularly when [the officers]
know the suspect is unlikely to fully understand those rights.” Id. at 953. Whether
Livers understood his Miranda rights is a disputed fact for the jury in this case.
The cases the Cass appellants cite to support their position that Livers
confessed voluntarily are distinguishable. The suspect in Sheets v. Butera, 389 F.3d
772, 775, 779 (8th Cir. 2004), was questioned for only one hour before confessing
and the plaintiff did not show the confession was obtained through leading questions
that provided information about the crime. Berghuis v. Thompkins, ___ U.S. ___,
___, 130 S. Ct. 2250, 2259-64 (2010), is inapposite because it addressed whether a
suspect invoked his right to remain silent under Miranda, not whether his rights to
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substantive due process were violated or whether his confession was the product of
police coercion. The Cass appellants also cite a long list of cases in which a court
found a confession voluntary even though the suspect had a low IQ. In all but one
of these cases, there was no evidence of police overreaching, unlike in Livers’ case.
See United States v. Makes Room for Them, 49 F.3d 410, 412-15 (8th Cir. 1995);
United States v. Chischilly, 30 F.3d 1144, 1151 (9th Cir. 1994); United States v.
Frank, 956 F.2d 872, 875-78 (9th Cir. 1991); Derrick v. Peterson, 924 F.2d 813, 817-
19 (9th Cir. 1990); United States v. Macklin, 900 F.2d 948, 950-52 (6th Cir. 1990);
Moore v. Dugger, 856 F.2d 129, 131-32 (11th Cir. 1988); Dunkins v. Thigpen, 854
F.2d 394, 399 (11th Cir. 1988); Winfrey v. Wyrick, 836 F.2d 406, 410-12 (8th Cir.
1987); Vance v. Bordenkircher, 692 F.2d 978, 981 (4th Cir. 1982); Hall v. Wolff, 539
F.2d 1146, 1149-52 (8th Cir. 1976); Coney v. Wyrick, 532 F.2d 94, 97-98 (8th Cir.
1976); Fairchild v. Lockhart, 744 F. Supp. 1429, 1437, 1449 (E.D. Ark. 1989). The
remaining case cited by the Cass appellants, Sumpter v. Nix, 863 F.2d 563, 565 (8th
Cir. 1988), included a long interrogation and manipulation of the suspect’s emotions.
However, there is no indication any of the other factors present in Wilson and this
case—such as a confession procured using leading questions and isolating the suspect
from any advisor during the interrogation—existed in Sumpter. See id.; Wilson, 260
F.3d at 952-53. “[S]tate officials [may not] cherry-pick cases that address individual
potentially coercive tactics, isolated one from the other, in order to insulate
themselves when they have combined all of those tactics in an effort to overbear an
accused’s will.” Wilson, 260 F.3d at 953.
Finally, the NSP appellants argue the first interview, before the polygraph, was
not coercive. If true, this is not determinative of Livers’ claim because the conduct
of Investigators Schenck, Lambert, and O’Callaghan after the polygraph, which led
to Livers’ confession, arguably was coercive.
The alleged actions of Investigators Schenck, Lambert, and O’Callaghan during
Livers’ interrogation potentially violated a right that was clearly established by
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Wilson in 2001, well before Livers was interrogated. See id. at 952-53. Though fact
and credibility issues about the appellants’ culpability remain, a reasonable officer
would have known the alleged conduct violated Livers’ rights as described in Wilson.
See id.The district court properly denied Investigator Schenck’s and the NSP
appellants’ motions for summary judgment on this claim. There is no evidence
Sergeant Weyers was involved in the interrogation, but she may be liable as a co-
conspirator for coercing Livers’ confession, if Livers proves a conspiracy and a
coerced confession. See Slavin v. Curry, 574 F.2d 1256, 1263 (5th Cir. 1978) (noting
defendants who conspire to deprive a plaintiff of his or her constitutional rights are
jointly liable for their co-conspirators’ acts in furtherance of the conspiracy),
overruled on other grounds, Sparks v. Duval Cnty. Ranch Co., 604 F.2d 976, 978 (5th
Cir. 1979); see also infra section II.G.1 (discussing Livers’ conspiracy claim).
ii. Sampson’s Claim
Sampson contends on appeal that appellants violated his Fifth Amendment
right against self-incrimination by coercing Livers’ confession. To the extent
Sampson raised this issue in the district court,11 the district court erred in denying
qualified immunity on this claim because a plaintiff does not have standing to claim
a Fifth Amendment self-incrimination violation based on someone else’s coerced
confession. See van Leeuwen v. United States, 868 F.2d 300, 301-02 (8th Cir. 1989).
11
Sampson arguably waived any such claim by not clearly raising it in his
amended complaint. See Hulsey v. Astrue, 622 F.3d 917, 924 (8th Cir. 2010) (noting
an issue not raised below is waived). See also discussion, supra n.9 (explaining a
Fifth Amendment self-incrimination violation only occurs when the covered
statements are used against the speaker in a criminal prosecution).
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b. Fabrication of Evidence
It was clearly established by 2006 that the Fourteenth Amendment’s guarantee
of due process is violated by “the manufacture of . . . false evidence” in order “to
falsely formulate a pretense of probable cause.” Moran I, 296 F.3d at 647; see Moran
v. Clarke, 359 F.3d 1058, 1060-61 (8th Cir. 2004) (Moran II); see also Wilson, 260
F.3d at 957. Livers and Sampson contend all appellants conspired with each other
and with Commander Kofoed to fabricate evidence against them, in violation of their
Fourteenth Amendment rights to due process. Livers and Sampson both specifically
allege (1) Commander Kofoed “planted Wayne Stock’s blood on a swab purportedly
taken from” Will’s car; (2) Investigators Lambert and Schenck coerced Reid into
falsely implicating Livers and Sampson; and (3) Investigator O’Callaghan and
Sergeant Weyers attempted to coerce Paulding into falsely saying Livers admitted to
murdering the Stocks. Livers also contends Investigators Lambert and Schenck
coerced Fester into implicating Livers. The district court found, without further
elaboration, “there was a showing that evidence was fabricated” against Livers and
Sampson and “[t]he extent of [the Cass appellants’ and NSP appellants’] knowledge
of, or complicity in, that act is a question of fact for the jury.” In a qualified
immunity interlocutory appeal, this finding is enough.
For example, Livers and Sampson presented evidence allowing a jury to infer
Commander Kofoed planted blood evidence in Will’s car. One can infer from this
evidence that Commander Kofoed intended to implicate Livers and Sampson, men
with close familial ties to Will. Evidence indicates Livers’ confession was coerced.
Investigator Schenck suggested Sampson provided Livers with the murder weapon
and ammunition, and Investigators Schenck and Lambert pressured Livers to change
his story to place Sampson in the Stock home at the time of the murders. Some
evidence also intimated Investigators Schenck and Lambert pressured Fester and Reid
to change their stories to implicate Livers and Sampson in the murders. It is
reasonable to infer Sergeant Weyers may have threatened Paulding to encourage
Paulding to say Livers had admitted to the murders. A jury could infer Investigator
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O’Callaghan’s involvement in Livers’ allegedly flawed polygraph examination and
presence on the trip to Texas to interview Paulding shows he helped develop the
strategy for interrogating Livers and Paulding or otherwise was a co-conspirator.
Finally, there is testimony that Investigators Schenck and Lambert frequently asked
DCCSI employees to retest items when initial tests did not link Livers or Sampson
to the crimes, and one DCCSI employee reported feeling pressured to “find
something.” The district court properly denied summary judgment to the Cass
appellants and NSP appellants on this claim based upon the allegations, with
supporting evidence, regarding their individual actions, and, to the extent Livers and
Sampson prove a conspiracy, based upon the actions of their alleged co-conspirators.
See Slavin, 574 F.2d at 1263, see also infra section II.G.1 (discussing Livers’ and
Sampson’s conspiracy claims).
2. Sheriff Dunning’s Liability
Livers does not allege Sheriff Dunning directly participated in any alleged
constitutional violation, but rather claims Sheriff Dunning is liable in a supervisory
capacity for Commander Kofoed’s and others’ misconduct. The district court made
only two findings specifically about Sheriff Dunning or the DCSO, noting there was
evidence suggesting (1) DCSO employees knew of Commander Kofoed’s
“administrative lapses;” and (2) Sheriff “Dunning’s failure to train, supervise, and
discipline the” DCCSI staff, including Commander Kofoed, “contributed to the
evidence fabrication and resulted in the concealing of evidence from [Livers], his
counsel, and the prosecutor.”
a. Failure to Train or Supervise
Sheriff Dunning cannot be liable for Commander Kofoed’s actions based on
respondeat superior. See Wagner v. Jones, 664 F.3d 259, 275 (8th Cir. 2011). Sheriff
Dunning may be liable under § 1983 if he (1) had “notice of a pattern of
unconstitutional acts committed by subordinates”; (2) was deliberately indifferent to
or tacitly authorized those acts; and (3) failed to take “sufficient remedial action”;
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(4) proximately causing injury to Livers. Andrews v. Fowler, 98 F.3d 1069, 1078
(8th Cir. 1996) (quoting Jane Doe A. v. Special Sch. Dist. of St. Louis Cnty., 901
F.2d 642, 645 (8th Cir. 1990)). In order to show deliberate indifference or tacit
authorization, Livers must allege and ultimately prove Sheriff Dunning “had notice
that the training procedures and supervision were inadequate and likely to result in
a constitutional violation.” Id. The district court denied Sheriff Dunning summary
judgment under this theory, but did not cite any specific reasoning or evidence. We
review the record to see which facts the district court may have assumed. See
Johnson, 515 U.S. at 319.
In Andrews, we concluded there was no “patently obvious need . . . to
specifically train officers not to rape young women.” Andrews, 98 F.3d at 1077.
Similarly, Sheriff Dunning faced no “patently obvious need” to train DCCSI
employees—whose job was to “identify, document, collect, and preserve evidence
from crime scenes”—not to fabricate evidence. See id. Any reasonable DCCSI
employee would know fabricating evidence is unacceptable. Livers maintains
“Dunning’s failure to train his employees in their duty to disclose exculpatory
material resulted in the fabrication of evidence against” Livers. Livers does not
causally link this alleged failure to Commander Kofoed’s misconduct. As such, this
alleged training failure cannot be a basis for Sheriff’s Dunning’s liability.
Livers also contends Sheriff “Dunning’s failure to adequately supervise DCCSI
resulted in the violation of [Livers’] constitutional right . . . not to have evidence
fabricated against him.” Livers argues Sheriff Dunning should be held liable because
Sheriff Dunning admitted he left day-to-day supervision of the DCCSI to Commander
Kofoed. Livers maintains Sheriff Dunning should have known Commander Kofoed
would abuse his position by fabricating evidence because of (1) alleged unrelated
dishonesty by Commander Kofoed; (2) Kush’s complaints about Commander Kofoed
to her supervisors; and (3) Commander “Kofoed’s fishy 2006 public statement that
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his finding of Wayne Stock’s blood in Will’s car may have been the result of
contamination.”
To impose supervisory liability, other misconduct must be very similar to the
conduct giving rise to liability. Cf. Jane Doe A, 901 F.2d at 646 n.4 (holding notice
of an employee’s sexual misconduct with adults did not provide notice of his sexual
misconduct with children). Notice of allegations Commander Kofoed committed
dishonest acts unrelated to handling evidence is not sufficient to support Sheriff
Dunning’s liability for a failure to supervise. Cf. id. The district court’s finding that
some DCSO employees knew of Commander Kofoed’s “administrative lapses” is
legally insufficient to impose supervisory liability. See Andrews, 98 F.3d at 645(requiring the defendant to have had notice). Nor does our own review of the record
reveal notice to Sheriff Dunning. In the internal affairs report covering Commander
Kofoed, none of the employees interviewed reported suspecting Commander Kofoed
of misconduct in any investigation. The same report concluded there was no
evidence Kofoed planted evidence in the Stock homicide investigation. Nor was
Sheriff Dunning notified of Kush’s concerns about Commander Kofoed’s handling
of evidence until after the Stock investigation was over.
Without guidance from the district court on what facts and assumptions it relied
upon for its decision, we undertook the “cumbersome review of the record to
determine what facts the district court, in the light most favorable to the nonmoving
part[ies], likely assumed.” Johnson, 515 U.S. at 319. Our cumbersome review of
more than 65 bound volumes and 40 video DVDs drew a blank. There is no
evidence, or reasonable inference from any evidence, indicating Sheriff Dunning had
notice Commander Kofoed may have mishandled evidence in this or any other
investigation until after the Stock investigation ended, too late to prevent injury to
Livers.
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Livers also alleges Sheriff Dunning’s supervision was inadequate because he
did not properly investigate and discipline DCCSI employees for misconduct. Livers
contends Sheriff Dunning never disciplined DCCSI employees for possible
mishandling of evidence, which made Commander Kofoed think he would not be
punished for planting evidence. This assertion is mere speculation and argument, and
is not a basis for denying qualified immunity. See Reed v. City of St. Charles, Mo.,
561 F.3d 788, 790-91 (8th Cir. 2009) (noting a party cannot withstand summary
judgment based on “speculation, conjecture, or fantasy” (quoting Moody v. St.
Charles Cnty., 23 F.3d 1410, 1412 (8th Cir. 1994)) (internal quotation marks
omitted); see also Brown, 518 F.3d at 558 (when reviewing a district court’s denial
of summary judgment on the grounds of qualified immunity, “we do not resort to
speculation.”).
Livers’ final contention—that Sheriff Dunning knew Captain Olson instructed
Commander Kofoed not to correct Commander Kofoed’s report about the date he
“discovered” the blood evidence in Will’s car—is similarly unavailing. Captain
Olson did not share this information with Sheriff Dunning until March 2008, long
after Sheriff Dunning could have prevented injury to Livers. Again, the record does
not support any finding that Sheriff Dunning received notice of the alleged
misconduct in time for any failure to act by Sheriff Dunning to have injured Livers.
Sheriff Dunning is entitled to qualified immunity both on Livers’ failure-to-
train claim and his failure-to-supervise claim.
b. Ratification
Livers also cites City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988), and
Speer v. City of Wynne, Ark., 276 F.3d 980, 987 (8th Cir. 2002), for his claim Sheriff
Dunning should be liable because he ratified Commander Kofoed’s fabrication of
evidence after it occurred. Praprotnik and Speer are inapposite because they involve
municipal—not individual—liability. See Praprotnik, 485 U.S. at 127; Speer, 276
-29-
F.3d at 987. Applying those cases would violate the principle that a supervisor who
does not directly participate in an employee’s constitutional violation can only be
liable for the violation when it was caused by the supervisor’s failure to train or
supervise his or her employees properly. See Wagner, 664 F.3d at 275.
D. False Arrest and Detention
Livers and Sampson both allege the Cass appellants and NSP appellants
violated their Fourth and Fourteenth Amendment rights against arrest without
probable cause. The district court denied qualified immunity on these claims based
on evidence indicating “a reasonably well-trained officer would have known that
there was no arguable probable cause to arrest” Livers or Sampson.
It was clearly established by 2006 that a seizure without “a truthful factual
showing sufficient to constitute probable cause” violates the Fourth Amendment.
Hedges v. Poletis, 177 F.3d 1071, 1074 (8th Cir. 1999). For purposes of qualified
immunity, we must inquire whether it was objectively reasonable for the officers to
think they had probable cause at the time Livers and Sampson were arrested. See
Amrine, 522 F.3d at 832.
A person is seized “within the meaning of the Fourth and Fourteenth
Amendments . . . when, ‘taking into account all of the circumstances surrounding the
encounter, the police conduct would have communicated to a reasonable person that
he was not at liberty to ignore the police presence and go about his business.’”
Kaupp v. Texas, 538 U.S. 626, 629 (2003) (quoting Florida v. Bostick, 501 U.S. 429,
437 (1991)) (internal quotation marks omitted).
1. Livers
Though Livers’ interrogation started as voluntary, Livers was seized within the
meaning of the Fourth Amendment, at the latest, when Investigator Lambert told
Livers after the polygraph examination, “Do you think you are going to get on a bus
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and you are going to leave? You are going to leave us? No, you’re not.” Shortly
thereafter, Livers expressed his desire to leave and belief that he could not.
Investigator Schenck and Investigator Lambert did not contradict this statement. A
reasonable person in Livers’ position would not believe he was free to leave.
At the time Livers was seized, he had not yet begun to confess. At that point,
the only information implicating Livers in the murders was speculation and the
questionable polygraph results. Rumor alone is not sufficient to establish probable
cause. See Henry v. United States, 361 U.S. 98, 101 (1959). Livers proffered a
polygraph expert’s statement that Livers’s polygraph results could not be read as
deceptive. A jury reasonably could question Investigator O’Callaghan’s exam and
purposes. The evidence, viewed in the light most favorable to Livers, indicates a
reasonable officer who knew of the polygraph examination’s flaws would not
reasonably have thought he had probable cause to arrest Livers. A reasonable jury
could infer from the close cooperation between Investigators Schenck, Lambert, and
O’Callaghan during Livers’ April 25 interrogations that Investigators Schenck and
Lambert knew the polygraph examination was fundamentally flawed.12
The Cass appellants contend they are entitled to qualified immunity to the
extent Livers claims they prolonged Livers’ detention. They maintain any delay in
Livers’ release was caused by Livers’ attorney’s failure to inform Cox of Livers’
mental limitations. This is a fact question not appropriately resolved at this stage.
12
Any after-acquired probable cause appellants cite now is irrelevant. The Cass
appellants argue that because a state court judge presiding over Sampson’s criminal
proceedings later found Livers’ confession created probable cause to arrest Sampson,
appellants, who were not trained as lawyers, must have had probable cause to detain
Livers. We decline to accept the state court opinion as dispositive on this issue.
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2. Sampson
At the time Investigator Schenck arrested Sampson, the only information
implicating Sampson was Livers’ confession. As discussed above, a jury could find
Livers’ confession was coerced. No reasonable officer could believe statements from
a coerced confession could alone provide probable cause to arrest Sampson.
Investigator Schenck knew of the circumstances surrounding Livers’ confession
because he participated in it. The district court properly denied qualified immunity
on Sampson’s Fourth Amendment claims against Investigator Schenck. None of the
other appellants were involved in Sampson’s arrest, and would be entitled to qualified
immunity on Sampson’s false arrest claim, except to the extent they were involved
in a conspiracy to violate Sampson’s constitutional rights. See Slavin, 574 F.2d at
1263, see also infra section II.G.1 (discussing Sampson’s conspiracy claim).
E. Brady Claim
Livers and Sampson allege all of the appellants are liable for failing to disclose
exculpatory evidence, including information about Livers’ recantation of his
confession and Kofoed’s handling of the blood evidence, in violation of Brady, 373
U.S. at 87, and Fourteenth Amendment due process. The district court found
“evidence from which a reasonable juror could infer that the defendants intentionally,
or in bad faith, failed to disclose exculpatory material or deliberately withheld
exculpatory information that prevented the prosecutor from complying with Brady.”
Assuming appellants failed to disclose exculpatory evidence, there was no
Brady violation because Livers and Sampson were not convicted. See Strickler v.
Greene, 527 U.S. 263, 281 (1999) (holding Brady is violated only when “there is a
reasonable probability that the suppressed evidence would have produced a different
verdict”) (emphasis added); see also, e.g., Morgan v. Gertz, 166 F.3d 1307, 1310
(10th Cir. 1999) (explaining that where “all criminal charges were dismissed prior to
trial[,] . . . courts have held universally that the right to a fair trial is not implicated
and, therefore, no cause of action exists under § 1983”); Flores v. Satz, 137 F.3d
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1275, 1278 (11th Cir. 1998) (refusing to find a Brady violation where the criminal
defendant “was never convicted and, therefore, did not suffer the effects of an unfair
trial”). Sampson asserts Brady applies in the absence of a conviction because we
addressed a Brady claim by analyzing the prejudicial effect of withheld evidence on
a suppression hearing in United States v. Hernandez, 299 F.3d 984, 990 (8th Cir.
2002). Sampson’s interpretation of Hernandez may conflict with the Supreme
Court’s holding in Strickler, 523 U.S. at 281. In addition, unlike Livers and
Sampson, Hernandez was convicted. See id at 988. In Hernandez, we addressed
whether the withheld evidence changed the outcome of the suppression hearing—the
evidence could not have affected the verdict if it did not first affect the suppression
hearing.
On appeal, Livers acknowledges Brady does not apply absent a conviction, but
contends Kennell v. Gates, 215 F.3d 825 (8th Cir. 2000), establishes a Fourteenth
Amendment due process obligation promptly to disclose exculpatory information to
avoid prolonging pre-trial detention. Livers’ reliance on Kennell is misplaced.
Kennell did not involve a failure to disclose evidence, but rather whether knowingly
detaining the wrong person violates the Fourth Amendment. Id. at 826, 828-30.
Our sister circuits disagree over whether pretrial detainees such as Livers and
Sampson have a right to disclosure of exculpatory evidence. The Fifth Circuit
concluded a police officer’s “deliberate failure to disclose . . . undeniably credible and
patently exculpatory evidence to the prosecuting attorney’s office” violates a clearly
established constitutional right, Sanders v. English, 950 F.2d 1152, 1158, 1160-62
(5th Cir. 1992). The Fourth Circuit reached the opposite result in Taylor v. Waters,
81 F.3d 429, 435-37 (4th Cir. 1996). The Fourth Circuit determined a police officer’s
failure “to disclose exculpatory evidence after a determination of probable cause has
been made by a neutral detached magistrate” neither violates the Fourteenth
Amendment’s Due Process Clause nor “render[s] the continuing pretrial seizure of
a criminal suspect unreasonable under the Fourth Amendment.” Id. at 436-37. Given
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the split of authority, we cannot say a pretrial right to disclosure of exculpatory
evidence, if it exists, was clearly established in 2006. See Ambrose v. Young, 474
F.3d 1070, 1077 (8th Cir. 2007) (“Officials are not liable for bad guesses in gray
areas; they are liable for transgressing bright lines.” (quoting Davis v. Hall, 375 F.3d
703, 712 (8th Cir. 2004) (internal quotation marks omitted)). Appellants are entitled
to qualified immunity on Livers’ and Sampson’s claims based on any failure to
disclose evidence.
F. Failure to Intervene
Livers contends all of the appellants are liable for failing to intervene to stop
alleged constitutional violations. The district court noted that other circuits have
recognized a duty to intervene to stop all constitutional violations. The district court
made no explicit holding on this claim, and we reach our own conclusion based on
our de novo review of the record. See Johnson, 515 U.S. at 319.
A law enforcement officer who knows another officer is using excessive force
has a duty to intervene. See Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981).
We have not recognized a duty to intervene to prevent other constitutional violations.
Though other circuits have recognized a duty to intervene outside of the excessive
force context, see Randall v. Prince George’s Cnty., Md., 302 F.3d 188, 204 (4th Cir.
2002); Reid v. Wren, Nos. 94-7122, 94-7123, 94-7124, 1995 WL 339401, at *2 (10th
Cir. 1995) (unpublished); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994);
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994), the Eleventh Circuit refused
to find a clearly established duty to intervene to stop other constitutional
violations, see Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999).13
13
We reject Livers’ contention the Eleventh Circuit implicitly overruled Jones
by imposing a duty to intervene to prevent false arrest in Lepone-Dempsey v. Carrol
Cnty. Com’rs, 159 F. App’x 916, 920 (11th Cir. 2005) (unpublished). Lepone-
Dempsey involved an excessive force claim based on the alleged unlawfulness of the
plaintiff’s arrest. See id. at 920.
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Assuming law enforcement officers have a constitutional duty to intervene
outside of the excessive force context, such a duty was not clearly established in
2006. Where, as here, the federal circuits disagree on whether conduct violates the
Constitution, and our court has not addressed the question, that conduct does not
violate clearly established law because “it is unfair to subject police to money
damages for picking the losing side of the controversy.” Wilson v. Layne, 526 U.S.
603, 618 (1999). Appellants are entitled to qualified immunity on Livers’ failure-to-
intervene claim.
G. Conspiracy
If appellants conspired to deprive Livers or Sampson of their constitutional
rights, each is jointly liable for his or her co-conspirators’ acts in furtherance of the
conspiracy. See Slavin, 574 F.2d at 1263; cf. White v. McKinley, 519 F.3d 806, 815-
16 (8th Cir. 2008) (affirming the denial of summary judgment to a private defendant
on a claim the private defendant conspired with a police officer to falsely arrest and
maliciously prosecute the plaintiff). To prove a civil conspiracy under § 1983, Livers
and Sampson must show
(1) two or more persons; (2) an object to be accomplished; (3) a meeting
of the minds on the object or course of action to be taken; (4) the
commission of one or more unlawful overt acts; and (5) damages as the
proximate result of the conspiracy.
Temporomandibular Joint (TMJ) Implant Recipients v. Dow Chem. Co. (In re
Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig.), 113 F.3d 1484, 1498
(8th Cir. 1997). Evidence of “an agreement to deprive [a] plaintiff of constitutionally
guaranteed rights” typically is circumstantial. White, 519 F.3d at 816. For example,
we held in White that evidence suggesting a defendant may have concealed
exculpatory evidence, “stood to gain financially” from those acts, and was
romantically involved with the primary wrongdoer was sufficient to show an
agreement to violate the plaintiff’s rights. See id.-35-
In Moran I, we found a conspiracy to violate a suspect’s civil rights on facts
similar to those alleged here, and concluded the plaintiff presented evidence of a
conspiracy to deprive the plaintiff of his civil rights where
[the plaintiff] introduced evidence that tends to show a police
department that publicly and financially committed itself to producing
a culprit for an alleged wrongdoing before any such wrongdoing was
actually established. He produced proof of questionable procedures, of
pressures placed on [witnesses] to incriminate a specific person or to
corroborate the department’s official line, of a hasty condemnation of
[the plaintiff] and of improper consideration of his race. Moreover, he
offered proof that, at various times, certain defendants purposely ignored
evidence that strongly tended to exonerate him.
Moran I, 296 F.3d at 647-48.
Here, the district court discussed the law concerning conspiracy and noted
“evidence of numerous meetings between the defendants,” but the district court made
no specific finding about conspiracy. Although the district court should have made
a finding on the conspiracy claim, we review the record de novo and reach our own
conclusion. See Johnson, 515 U.S. at 319.
1. Cass Appellants and NSP Appellants
The evidence, viewed in the light most favorable to Livers and Sampson,
suggests the Cass appellants and NSP appellants conspired with each other and
Commander Kofoed to violate Livers’ and Sampson’s constitutional rights. Livers
and Sampson presented some evidence that would allow a reasonable juror to infer
some or all of these appellants and Kofoed coerced Livers’ confession, fabricated
evidence against Livers and Sampson, and arrested them without probable cause. In
addition, as in Moran I, Livers and Sampson have proffered evidence the Cass
appellants and NSP appellants ignored facts—such as the circumstances of Livers’
confession and the lack of physical evidence linking Livers and Sampson to the
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crime—“that strongly tended to exonerate [Livers and Sampson].” Moran I, 296 F.3d
at 648. “In short, drawing all inferences in [their] favor, a reasonable jury could
conclude that some or all or the [Cass appellants and NSP appellants] intentionally
set up . . . innocent [Livers and Sampson] for patently arbitrary reasons.” Id. To the
extent the specific acts discussed above may violate the Constitution, they are
sufficient overt acts to support a civil rights conspiracy claim. Livers’ and Sampson’s
damages are their detention.
There is circumstantial evidence of a meeting of the minds. The record
contains evidence of meetings about the Stock investigation involving the Cass
appellants, NSP appellants, and Commander Kofoed, both before and after Livers’
confession. Of course, “[v]arious people engaged in investigating and reporting
suspected criminal activity does not amount to conspiracy. We look for a genuine
factual issue of concerted activity toward an unlawful objective.” Myers v. Morris,
810 F.2d 1437, 1454 (8th Cir. 1987), abrogated on other grounds, Burns v. Reed, 500
U.S. 478, 483-84 n.2, 496 (1991). The jury may find appellants’ meetings were
unrelated to any alleged conspiracy. However, the jury could find those meetings,
when combined with evidence of numerous acts by appellants suggesting an intent
to fabricate evidence and to prosecute Livers and Sampson in the face of contrary
evidence, indicate a concerted effort to achieve an unlawful goal.
Livers and Sampson have presented sufficient allegations and evidence of a
violation of a clearly established right to survive the Cass appellants’ and NSP
appellants’ motion for summary judgment on Livers’ and Sampson’s conspiracy
claims. To the extent Livers and Sampson prove a conspiracy to violate their
constitutional rights, the Cass appellants and NSP appellants are liable for their co-
conspirators’ actions. Though these appellants may have acted reasonably and may
have diligently investigated all leads, the “drawing of inferences and evaluation of
witness credibility . . . remain the province of the jury.” Moran I, 296 F.3d at 648.
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2. Sheriff Dunning
Our analysis differs as to Sheriff Dunning. “We . . . examine the information
possessed by [Sheriff Dunning] in order to determine whether, given the facts known
[to him] at the time, a reasonable government official would have known that his
actions violated the law.” Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996).
There is no evidence Sheriff Dunning knew of the other appellants’ alleged
unconstitutional acts. A reasonable officer in Sheriff Dunning’s position would not
have known that any aspects of the investigation into Livers and Sampson violated
the law. Sheriff Dunning is entitled to qualified immunity on Livers’ conspiracy
claim.
III. CONCLUSION
We affirm in part, reverse in part, and remand for further proceedings. We
affirm the denial of qualified immunity with regard to Livers’ and Sampson’s claims
against the Cass appellants and the NSP appellants alleging those appellants
fabricated evidence, caused Livers and Sampson to be arrested without probable
cause, and conspired to violate Livers’ and Sampson’s civil rights. We also affirm
the district court’s denial of qualified immunity on Liver’s claim the Cass appellants
and NSP appellants coerced Livers’ confession.
We reverse the district court’s denial of qualified immunity on Livers’ and
Sampson’s claims based on the Fifth Amendment right to due process and the alleged
failure to disclose exculpatory evidence (Brady claim). We also reverse the denial of
qualified immunity for Sheriff Dunning on all claims and to all appellants on Livers’
claims based upon appellants’ alleged failure to intervene.
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