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West v. Brankel

United States District Court, W.D. Missouri, Southern Division

January 16, 2015

GARY DON BRANKEL, et al., Defendants.


GREG KAYS, Chief District Judge.

Rhonda West ("West") was walking down the road in Waynesville, Missouri, one winter night when she was struck by a passing vehicle. West died that night from her injuries, the victim of a hit-and-run that has never been officially solved. Over time, West's family came to believe that the driver who stuck and killed her was Defendant Gary Don Brankel ("Brankel"), an on-duty officer with the Waynesville Police Department-the same agency charged with investigating her death. The family believed that Brankel and certain other officers acted to cover up Brankel's involvement and impede a proper investigation. Eventually, another Waynesville Police Department officer agreed and filed a probable cause statement against Brankel for involuntary manslaughter and for tampering with evidence. But by the time the Police Department began seriously questioning Brankel's culpability, the limitations period had run for West's family to bring a wrongful death lawsuit against him.

West's daughter, Plaintiff Kelsey Renee West, brings this action under 42 U.S.C. ยง 1983 against the City of Waynesville ("the City"), Brankel, and three other police officers, Brandon Robertson ("Robertson"), Robert Allen Carter ("Carter"), and Clarence Henry Liberty ("Liberty"). Plaintiff alleges Defendants conspired to conceal Brankel's involvement in West's death until Plaintiff could no longer bring a viable wrongful death claim, thereby vitiating her constitutional right to access the courts.

Pending before the Court is Defendants' Motion for Summary Judgment (Doc. 63). For the reasons below, the motion is GRANTED IN PART and DENIED IN PART. Summary judgment is granted to the City and Robertson, but denied to Brankel, Carter, and Liberty.


On the evening of January 31, 2010, a 911 dispatcher in Pulaski County, Missouri, received a call that a burglary was in progress at an unoccupied home in Waynesville. Sheriff's deputies responded to the scene and encountered several cars parked outside the house. Fearing that a large number of perpetrators were inside, the deputies requested assistance from the Waynesville Police Department.

The dispatcher sent Brankel and Robertson, two on-duty officers with the Waynesville Police Department. Brankel traveled separately in his service vehicle, which was a white Ford Expedition sports utility vehicle with internal, but not external, emergency lights. The county communications center asked Brankel and Robertson to "expedite" their arrival. At 10:24 p.m. Brankel activated his emergency lights and departed for the scene.

Brankel drove northbound on Highway 17, which had no functional shoulder. At 10:26 p.m., he contacted the communications center to report a woman walking down the middle of the road. He asked for another agency to check on her, and proceeded toward the burglary in progress.

The distance between where Brankel saw the woman and the site of the burglary is 1.9 miles. Brankel told his dispatcher at 10:30 p.m. that he had arrived at the house, but he may not have actually arrived until 10:34 p.m., when he began calling out license plate numbers associated with the vehicles parked outside the house. His average speed between those two points then was either 14.25 or 28.5 miles per hour, depending on his exact arrival time. In contrast, Robertson traveled about 6.4 miles to the burglary site in seven minutes, making his average speed about 54.86 miles per hour.

After Brankel arrived at the house, he helped secure the scene by taking suspects into custody.

At 10:33 p.m., a motorist named Dave Kessler ("Kessler") called 911 and reported seeing a body lying in the middle of Highway 17 in front of Rice's Cleaners while he was driving northbound. The same minute, another man named Michael Focke ("Focke") called 911 to report a body on the side of Highway 17. A third individual, Armin Yaris ("Yaris"), later reported that around that same time, he saw a white sports utility vehicle parked near Rice's Cleaners where the body was found.

Sergeant Mark Hedrick ("Hedrick") of the Missouri State Highway Patrol was already on his way to Rice's Cleaners in response to Brankel's earlier request for another agency to check on the woman walking in the road. When Hedrick arrived at 10:35 p.m., the first on the scene, he found the woman unconscious. Because the site was within Waynesville city limits, Hedrick requested a Waynesville Police Department officer at the scene.

The communications center twice asked Brankel to leave the burglary scene to assist Hedrick. Brankel refused both times, saying he had not finished work at the burglary site. Robertson took off for the Highway 17 site first; Brankel followed suit about twenty minutes later.

On his way, Robertson learned from the dispatcher that the woman had died. When Brankel arrived at the scene, Robertson briefed him on the situation and told him the woman had been transported to the hospital. Brankel left for the hospital to speak with the coroner and to collect evidence. Staying behind, Robertson and Hedrick photographed the scene and searched the surrounding area for evidence. They took thirteen photographs and collected a strand of blonde hair and a piece of white plastic that might have come from an automobile.

Assistant Waynesville Police Department Chief Liberty arrived on the scene. Liberty and Robertson canvassed the surrounding area but were unable to find eyewitnesses. They spoke with five nearby residents, none of whom provided useful leads. Robertson and Hedrick also spoke with Kessler and Focke, but did not learn any new information.

At the hospital, the hit-and-run victim had been identified as Rhonda West. Brankel took thirty photographs of West. Hospital staff gave him West's clothing, jewelry, and false teeth. Brankel left the hospital for the police station, where he gave West's personal effects to Robertson. No additional, relevant investigation was done that night.

The next morning, Brankel and Robertson returned to Rice's Cleaners and thoroughly searched the scene. They went to where West had last been seen and walked up to where her body was found. They spoke to more witnesses, but found no new evidence. This was the last time the Waynesville Police Department investigated the scene where West was struck.

That day, Robertson filed an official criminal report in the department's electronic records management system. The only evidence he listed in his report was the strand of hair, piece of plastic, and the thirteen photographs taken at the scene. The report did not mention West's clothing, jewelry, or false teeth or the thirty photographs Brankel took of her body. Brankel's photographs were not included anywhere in the case file.

The Waynesville Police Department did not save any of the non-photographic property associated with this case. West's false teeth were given to Ruby Sandusky ("Sandusky"), West's sister and Plaintiff's aunt. West's jewelry was last possessed by Robertson, but never given to West's family. Her jewelry then went missing. West's clothes, which were wet when initially collected by the emergency medical technicians, had become moldy and odorous. Although Police Chief Carter knew that the clothes might have evidentiary value, for example paint transferred from the striking vehicle, he ordered an officer to dispose of the clothes. Finally, the strand of hair and piece of plastic that were found on the roadway simply went missing.

Brankel, the department's evidence custodian, did not investigate why this property was not entered into evidence. Carter also never investigated where those items went, even though Carter knew of no other instance in which evidence possessed by the Waynesville Police Department had gone completely missing.

Around this time, the forensic pathologist who performed West's autopsy concluded the cause of death was disruption of the brainstem due to blunt trauma to the head, neck, and chest. He later agreed that West's injuries were consistent with being hit with an object about the size of a driver's side mirror. To him, West's wounds indicate that she was walking northbound on Highway 17, heard a vehicle coming from behind, and turned her head. The vehicle, traveling northbound, then could have struck her with its driver's side external rear-view mirror and thrown her in a northward direction.

Plaintiff's expert later inspected Brankel's vehicle and found evidence of repairs to the driver's side door. He found a grease pencil mark visible upon collapsing the mirror indicating it had been repaired, fixed, or adjusted. The expert noted a moon-shaped crack to the lower left portion of the windshield consistent with stress.

At some point, Carter heard a rumor that West may have been struck by an emergency responder's vehicle. Carter checked Brankel's service vehicle for damage consistent with striking a large object like a human body. Carter did not see damage, but did not check the collapsible mirror closely.

Brankel was assigned to lead the investigation, serve as the point of contact for any leads, and keep West's family informed of the investigation's progress. Since being assigned, Brankel did not do anything else to investigate West's death. For instance, he never interviewed the three drivers who called 911 about West's body and never secured evidence or records from Hedrick at the Missouri State Highway Patrol. Carter did not direct anybody to do any additional investigation and did not perform any further investigation himself. The case went cold.

West's family grew impatient for updates. For about two years after West's death, her family contacted the Waynesville Police Department once or twice per month about the case. Sandusky asked Brankel for updates, but each time Brankel apologized and told her he had no new information to give. Sandusky brought up the case to Hedrick, but he had nothing to report to her. Plaintiff asked Sandusky to check with Carter, an old friend of the family, for progress on the case. Sandusky visited Carter at least five times in person for case updates and information on leads. During this time, no developing information was relayed to her.

West's family had also begun hearing rumors that law enforcement may have been involved in West's death. Sandusky suspected Brankel in particular after she witnessed him crying at West's funeral. Sandusky approached Carter with this rumor. Carter assured her that absolutely nobody in his department killed West. He told Sandusky she did not need to retain a lawyer. He told her to trust him and reminded her that he was a family friend who would not act in any way against the family's best interests.

One day in 2012, Sandusky visited the police station and met Sergeant Steven Lawhead ("Sergeant Lawhead"). Sergeant Lawhead told her he would look into the case and that she should return in a few days. Upon her return, Sergeant Lawhead told Sandusky that he would not give her this file ...

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