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Dean v. Searcey

United States Court of Appeals, Eighth Circuit

June 11, 2018

James L. Dean; Lois P. White, as Personal Representative of the Estate of Joseph White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor; Debra Shelden Plaintiffs-Appellees
v.
Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; County of Gage, Nebraska, a Nebraska political subdivision Defendants-Appellants Ryan L. Timmerman, Personal Representative of the estate of Jerry O. DeWitt Defendant The Nebraska Association of County Officials; Nebraska Sheriffs Association; National Sheriffs Association; International Municipal Lawyers Association; The Nebraska Intergovernmental Risk Management Association Amid on Behalf of Appellant (s)

          Submitted: November 16, 2017

          Appeal from United States District Court for the District of Nebraska - Lincoln

          Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         This case is familiar to us, as it is to Nebraskans and much of the nation. It returns after three prior opinions by this Court, two trials, and, now, one jury verdict that is contested on this appeal. We are asked here, in large part, to sweep the pieces off the board-to overturn our prior rulings-in order to vacate the jury's verdict. We decline to do so. And, after careful examination of the remaining claims on appeal, we find no other reason to disturb the verdict or rulings by the district court.[1]Thus, we affirm.

         I.

         The underlying facts in this case have been discussed at length in past appeals. See Winslow v. Smith, 696 F.3d 716 (8th Cir. 2012); White v. Smith, 696 F.3d 740 (8th Cir. 2012); Dean v. Cty. of Gage, 807 F.3d 931 (8th Cir. 2015), cert. denied, 136 S.Ct. 2490 (2016). We provide a brief procedural summary to orient our discussion.

         Appellees are six individuals-Joseph White, Ada JoAnn Taylor, Thomas Winslow, Debra Shelden, Kathleen Gonzalez, and James Dean-who were arrested for the gruesome February 1985 rape and murder of Helen Wilson in Beatrice, Nebraska.[2] All pled guilty to various charges in relation to the crime with the exception of Joseph White-he went to trial and was convicted for first-degree felony murder. Shelden, Gonzalez, and Dean served around five years; the rest served nearly twenty years.[3] Appellees were exonerated by DNA evidence in 2008, and the State of Nebraska formally pardoned them in 2009. That same year, they filed this lawsuit on the grounds that their deprivations of liberty were preventable: they argued that their arrests and imprisonment were the result of a reckless investigation, manufactured false evidence, and coerced confessions. They assert claims under 42 U.S.C. § 1983, as well as parallel conspiracy claims under 42 U.S.C. § 1985, against Gage County (where Beatrice is located) and three individuals in the Gage County's Sheriff Department-Sheriff Jerry DeWitt, Deputy Burdette Searcey, and Deputy Wayne Price.[4]

         On prior appeals, we narrowed the scope of Appellees' claims against Sheriff DeWitt and Deputies Searcey and Price to reckless investigation, manufacture of false evidence, and conspiracy. We also found that the officials were not entitled to qualified immunity. The case then proceeded to trial where it initially ended in a mistrial. After that, the district court, pursuant to Fed.R.Civ.P. 54(b), certified its rulings on county liability and the conspiracy claims for appellate review. We reversed the district court on both claims, finding that Gage County could be liable for acts committed under policies instituted by Sheriff DeWitt, as county sheriff, and that the conspiracy claims could go forward.[5]

         Appellees once again proceeded to trial after three interlocutory opinions from this Court. This time the trial ended in a verdict and awards for each of the Appellees totaling approximately $28.1 million. The verdict is summarized in the chart below:

Dean

White

Gonzalez

Winslow

Taylor

Shelden

Searcey (Reckless Investigation)

Dean

White

Gonzalez

Winslow

Taylor

Shelden

Price (Reckless Investigation)

Dean

Price

Price

Price

Taylor

Shelden

DeWitt (Reckless Investigation)

DeWitt

DeWitt

DeWitt

DeWitt

DeWitt

DeWitt

Searcey (Manufactured Evidence)

Searcey

White

Gonzalez

Winslow

Taylor

Searcey

Price (Manufactured Evidence)

Dean

White

Gonzalez

Price

Price

Shelden

DeWitt (Manufactured Evidence)

DeWitt

DeWitt

DeWitt

DeWitt

DeWitt

DeWitt

Searcey (Conspiracy)

Searcey

Searcey

Searcey

Searcey

Searcey

Searcey

Price (Conspiracy)

Price

Price

Price

Price

Price

Price

DeWitt (Conspiracy)

DeWitt

DeWitt

DeWitt

DeWitt

DeWitt

DeWitt

County Liability

Dean

White

Gonzalez

Winslow

Taylor

Shelden

Damages

$2, 190, 000

$7, 300, 000

$2, 190, 000

$7, 300, 000

$7, 300, 000

$1, 825, 000

         On this appeal, Gage County, Searcey, and Price raise four distinct claims in their opening brief, with the continued viability of our prior rulings being their primary focus.[6] Cf. Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008) ("Claims not raised in an opening brief are deemed waived."). Gage County argues that judgment as a matter of law should be entered for it because our prior opinion on its liability was erroneous and, in any case, liability is not supported by the trial record. The deputies argue much the same with regards to qualified immunity. Failing that, the Appellants argue for a new trial because of (1) allegedly prejudicial behavior by Appellees' counsel; and (2) an alleged failure of the district court to properly define "reckless investigation" in the jury instructions. We address each claim in turn.

         II.

         As noted above, Gage County launches a two-prong attack on its liability. It first argues that we are not bound by Dean and that we should re-examine that ruling. Alternatively, even if Dean applies, Gage County asserts that the evidence was insufficient to find it liable.

         A.

         According to Gage County, we are not bound by our holding in Dean under the law-of-the-case doctrine because that decision applied controlling law incorrectly. As a reminder, Dean held that Nebraska county sheriffs "made final policy with regard to law enforcement investigations and arrests." 807 F.3d at 941. For that reason, we held that it was for the jury to decide in this case "whether Sheriff DeWitt's decisions caused the deprivation of rights at issue by policies which affirmatively command that it occur." Id. at 942 (internal quotation marks omitted).[7]

         Our decision in Dean is not simply law of the case. It is the law of this circuit. Hence, we would only re-examine the decision if it were "repudiated or undermined by later authority, such as a statute, an intervening Supreme Court decision, or en banc decision." Bryan A. Garner et al., The Law of Judicial Precedent 38 (West 2016). It is not. Gage County simply seeks to re-litigate Dean on this appeal. So, the traditional rule applies: "as a decision of a panel . . . [Dean] binds other panels." Jenkins by Agyei v. Missouri, 73 F.3d 201, 205 (8th Cir. 1996).[8]

         B.

         Next, Gage County argues that the evidence is insufficient to support a finding of liability. Our review of jury verdicts is extremely deferential given "the danger that the jury's rightful province will be invaded when judgment as a matter of law is misused." Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017) (internal quotation marks omitted). Thus, we only overturn a verdict when "'the evidence is such that, without weighing the credibility of witnesses, there is a complete absence of probative facts to support the verdict.'" Id. (quoting Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998)). With these principles in mind, we examine Gage County's arguments.

         A municipal entity, like Gage County, "may not be found liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." S.M. v. Lincoln Cnty., 874 F.3d 581, 585 (8th Cir. 2017) (internal quotation marks omitted). Gage County contends that there is insufficient evidence of causation, arguing that "[t]here is no evidence that DeWitt [as final policymaker] created policy that caused a constitutional violation." Appellant Br. 27.[9] According to the County, the manner in which the jury returned its verdict-finding for Sheriff DeWitt, now deceased, on all counts and finding for all defendants on the conspiracy counts-means that Appellees' "primary theory of municipal liability . . . [which is] that the County was liable because DeWitt, as final policymaker, directly participated in violations of Appellees' constitutional rights or in a conspiracy regarding the same" is no longer valid. And, the County continues, "[t]he record contains no evidence of a policy to support any other theory of municipal liability." Appellant Br. 29. To sum up: Gage County argues that there is "no evidence" linking the jury's finding of seventeen constitutional torts across the six Appellees to county policy.

         We disagree. The jury was correctly instructed-in an instruction that the County did not object to or appeal from-that Gage County was only liable if, after finding a constitutional violation, "Sheriff DeWitt (a) directed that the violation occur, or (b) authorized the violation, or (c) agreed to a subordinate's decision to engage in the violation."[10]

         Active involvement in constitutional torts by Sheriff DeWitt, in other words, is not the only evidence probative of the County's liability. The jury found that Sheriff DeWitt did not personally (1) engage in reckless investigatory tactics, (2) manufacture false evidence, or (3) enter into a "knowing agreement or knowing mutual understanding"-a conspiracy as defined in this case-to violate constitutional rights. But, the jury still found that he "directed, " "authorized, " or "agreed to" the constitutional torts committed by the deputies. See Kelly v. City of Omaha, 813 F.3d 1070, 1076 (8th Cir. 2016) (noting municipal liability attaches if "policymaking officials had notice of or authorized" unconstitutional acts). Simply put, the jury could have drawn a logical distinction between Sheriff Dewitt's investigatory role and his policymaking and managerial role.[11] The question, then, is whether there is evidence showing DeWitt created policy which caused at least one constitutional violation-enough for the County to be liable for damages-for each Appellee.

         We find that there is not "a complete absence of probative facts, " Bavlsik, 870 F.3d at 805 (internal quotation marks omitted), that Sheriff DeWitt "directed, " "authorized, " or "agreed to" at least one constitutional tort committed against each Appellee. The jury had sufficient evidence to believe that the investigation would have fizzled out without Sheriff DeWitt's continued approval of arrests. Evidence at trial showed he allowed the investigation to continue with full vigor despite knowing the deputies arrested individuals who did not match the physical evidence found at the crime scene. On top of that, the jury could believe he permitted the continued interrogation of arrestees, regardless of the knee-jerk, baffling statements they gave-many of which contradicted physical evidence and statements made by fellow arrestees. In some cases, it was documented (and shown to the jury) that he approved the arrests of individuals solely on the basis of self-conflicting statements his deputies elicited from those in detention. In this way, he gave oxygen to the reckless investigation largely led by Searcey and the jury found for all plaintiffs and against Searcey on the reckless investigation claim.[12] That alone is enough to find the County liable as to all Appellees. DeWitt's managerial impact, however, was felt in a number of other ways.

         Sheriff DeWitt initially opened the investigation. The jury heard he did so four years after the events in question-and four years after the Beatrice Police Department ("BPD") and the FBI had done an extensive investigation-on the basis of a witness that Deputy Searcey had met while moonlighting as an unpaid private investigator.

         Sheriff DeWitt, the jury could believe, knew of the investigatory tactics used and affirmatively directed their usage. The jury was presented evidence that Sheriff DeWitt sat in on multiple interviews conducted by Deputy Price. They could reasonably infer he knew of Price's methods, including encouraging subjects to use "unconscious recall" to remember facts. The jury could also reasonably conclude that DeWitt assigned Deputy Price to speak to stubborn arrestees to elicit favorable, but demonstrably false, statements.

         And Sheriff DeWitt, as the district court notes, insulated and protected the investigation. The jury could have reasonably credited the testimony of BPD Officer Sam Stevens that Sheriff DeWitt acted to protect the investigation from his criticisms and believed this effort eventually led to Stevens's removal from it.

         While this is certainly not all of the evidence of Sheriff DeWitt's hierarchical impact on the investigation, it demonstrates that the jury had enough to find the County liable for the Appellees' damages.

         III.

         From county liability we move to another issue that we have ruled on but which is now contested on this appeal: qualified immunity. We first examine whether the trial record continues to support our prior qualified immunity determinations before turning to whether intervening Supreme Court precedent undermines the legal foundation on which our prior rulings rest.

         A.

         Qualified immunity is an issue we rarely examine after trial "'because once the defendant has had to proceed to trial, he or she has lost the benefit of qualified immunity, that is, the entitlement to be free from suit.'" Payne v. Britten, 749 F.3d 697, 700 (8th Cir. 2014) (quoting Parton v. Ashcroft, 16 F.3d 226, 228 (8th Cir. 1994)). Prior to trial in this case, and in two separate opinions, we applied the standard qualified immunity test, looking to see (1) if the Appellees had offered facts that sufficiently alleged a constitutional violation, and (2) if the law defining that violation was clearly established. See Winslow, 696 F.3d at 731-40; White, 696 F.3d at 753-59. ...


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