United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on three Motions for Summary
Judgment, filed by: St. Louis Metropolitan Police Department
(“SLMPD”) Officers Anthony Boettigheimer,
Christian Stamper, and David Rudolph (the “Police
Defendants”), and St. Louis City Board of Police
Commissioners (“the Board”) members Richard Gray,
Thomas Irwin, Bettye Battle-Turner, Erwin O. Switzer, and
Francis G. Slay (the “Board Defendants”) (Doc.
182); Missouri Department of Probation and Parole Officer
Joseph Spence (Doc. 196); and the City of St. Louis
(“the City”) (Doc. 198). Each motion includes a
statement of material facts. (Docs. 186, 199, 200.) Plaintiff
has filed a joint response opposing the first two motions
with responses to their respective statements of fact and a
statement of additional facts. (Doc. 211.) Plaintiff
separately filed a response in opposition to the City's
motion and a response to its statement of facts. (Doc. 216.)
pending are three motions to strike or exclude expert
testimony. (Docs. 189, 190, 201.) Those motions are fully
briefed and ready for disposition. Because all of these
motions involve similar legal issues and intertwined facts,
the Court will address them together.
August 10, 2012, around 8:30 p.m., Jane Doe arrived home to
her condominium in the Central West End neighborhood of St.
Louis. As Doe was exiting her vehicle, a man walked past her.
She walked to the trunk to retrieve her purse and noticed the
man walking back towards her. When Doe closed the trunk, the
man made eye contact and said, “Give me your
money.” He pointed a gun at her. Doe agreed to
cooperate and told the robber that she had a cell phone in
the front seat. The robber followed her there, took Doe's
phone, took $50 in cash, and ran off.
husband John Doe was walking the couple's dog when the
robbery took place. During the walk, he nodded to a man who
passed him on the sidewalk. As John Doe was finishing the
walk, he saw the same man roughly one block from home. The
two made eye contact and the man ran off. When John got home
and Jane told him what had happened, he called the police.
sergeant, two detectives, a patrol officer, and an Evidence
Tech Unit employee responded to the scene. Doe told the
officers that she had gotten a good look at the robber's
face and described him as a light-skinned African-American
male, 16-20 years old, 6'3” tall, and weighing 150
pounds. After talking to police, Doe left her cell phone
activated so its use could be tracked. She eventually
provided the police with two spreadsheets of calls that had
been made from her phone after the robbery, which she had
created by copying and pasting from her online account
records on Sprint's website. On August 16, 2012, police
conducted a “TLO search” using the telephone
numbers listed on Doe's spreadsheets. One of the numbers
dialed was linked to an address associated with a man named
August 18, 2012, a man shot and killed Megan Boken during an
attempted armed robbery in the Central West End, less than
three blocks from Doe's condominium. The next day, August
19, homicide detectives conducted a computer search that
alerted them that the deadly robbery of Boken was similar to
the Doe robbery in both manner and location. The day after
that, on August 20, homicide detectives met with Defendant
Stamper and asked for Doe's spreadsheets, hoping they
might contain something to assist with the Boken
after Stamper's August 20 meeting with homicide
detectives, the Doe case was assigned to Defendant
Boettigheimer. That day, Boettigheimer ran several computer
searches using Lamont Carter's addresses and phone
numbers. The searches returned a number of associates, but
only one person-Plaintiff Cornell McKay-matched the Does'
description of Jane Doe's robber. Boettigheimer generated
a photo line-up using Plaintiff's photo and five others
and showed it to the Does. Jane Doe identified Plaintiff as
her robber. John Doe did not recognize any of the six men.
Boettigheimer issued a “wanted” notice for
August 21, 2012, Plaintiff surrendered himself, accompanied
by local Reverend Chris Douglas, who provided an alibi for
Plaintiff and identified several other alibi witnesses.
Boettigheimer interviewed Plaintiff about both the Doe
robbery and the Boken murder. Plaintiff voluntarily submitted
to a polygraph examination but officers only asked him about
the murder case. Boettigheimer then organized a live line-up
at which both Jane and John Doe independently identified
Plaintiff as the robber. Thereafter, Plaintiff was booked
for, and later charged by the Circuit Attorney with,
first-degree robbery and armed criminal action.
of the Circuit Attorney's Office commented publicly that
the investigation had been successful.
homicide detectives had been running their own computer
searches using the Doe spreadsheet. Their investigation led
them to Kaylin Perry, whose number had been dialed from
Doe's phone numerous times in the first forty minutes
after the robbery. On August 21, the homicide detectives
brought Perry in for questioning, and she told them that her
boyfriend, Keith Esters, had come home one night with the
phone and $50. Perry also told the homicide detectives that
Esters had said that he murdered Boken. Perry told the
detectives that she did not know Plaintiff and that he had
not been involved in either crime. Esters ultimately
confessed to the Boken murder but did not admit to the
robbery of Jane Doe. Esters did say that he did not know
Plaintiff and that Plaintiff was not involved in the murder.
August 22, 2012, homicide detectives asked Boettigheimer and
his partner Defendant Rudolph to come to the station. When
the homicide detectives relayed what Perry had told them,
Boettigheimer and Rudolph interviewed Perry themselves. Perry
told the officers that she and Esters had sold the phone at a
gas station. Although Esters was in the custody of the
homicide detectives, Boettigheimer and Rudolph did not
interview him. Boettigheimer and Rudolph tracked down the
person who had purchased the phone at the gas station, who
confirmed that he had bought it from Esters. The next day,
Boettigheimer and Rudolph retrieved the phone. The officers
also met with Plaintiff's proffered alibi witnesses.
on the identifications of Plaintiff ad the person who
committed the robbery and despite Plaintiff's
cooperation, the statements from the homicide detectives,
Perry, Esters, and the gas station employees, the Circuit
Attorney proceeded to trial on the Doe robbery and, on
December 12, 2013, a jury convicted him. The court sentenced
Plaintiff to twelve years in prison. On appeal, the Missouri
Court of Appeals vacated the convictions on the ground that
the trial court erred by granting the prosecution's
motion to exclude any reference to Esters and remanded the
case. State v. McKay, 459 S.W.3d 450, 452
(Mo.Ct.App. 2014). Prosecutors publicly stated that they
believed Plaintiff had robbed Doe and wished to retry him,
but because Doe did not want to testify again, the State
dropped the case and Plaintiff was released on May 7, 2015.
August 25, 2015, Plaintiff filed this suit against the Police
Defendants, the Board, Plaintiff's probation officer, the
City, SC Ryan Consulting and its owner, Susan Ryan-who had
assisted the City in public relations matters-and Circuit
Attorney Jennifer Joyce. Ryan and her business were dismissed
by court order (Doc. 107), and the Circuit Attorney was
dismissed with prejudice by stipulation (Doc. 171). Plaintiff
proceeded against the remaining defendants on seven claims:
Count I - Destruction of Evidence; Count II - Fabrication of
Evidence; Count III - Reckless or Intentional Failure to
Investigate; Count VI - Conspiracy to Deprive Plaintiff of
Constitutional Rights; Count V - Liability under Monell
v. Dep't of Soc. Servs. of City of New York; Count
VI - State Law False Arrest; and Count VII - State Law
Malicious Prosecution. (Docs. 1, 78.) The Police and Board
Defendants filed a joint motion for summary judgment, arguing
that they are protected by qualified immunity; that there is
no evidence of wrongdoing, that Plaintiff's arrest was
supported by probable cause; and that there is no evidence of
policy or custom which would make the Board members liable
for the officers' alleged misconduct. (Docs. 182, 185.)
officer Spence separately moved for summary judgment, arguing
that he is also entitled to qualified immunity and that there
is no evidence he violated Plaintiff's constitutional
rights or that he conspired with others to do so. (Docs. 169,
motion for summary judgment, the City argues that it is not
liable for the Police or Board Defendants' alleged
misconduct because between 1982 and 2012, “[t]he City
had no authority or control over the operations of the SLMPD.
. . . During that period of time . . . [state law] barred the
City of St. Louis from interfering ‘with the powers or
the exercise of the powers' of the Board.”
Allen v. City of St. Louis, Mo., No. 4:14 CV 1398
RWS, 2015 WL 3407652, at *2 (E.D. Mo. May 26, 2015) (see
also, Doc. 212 at 1-2).
to Federal Rule of Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden
is on the moving party. City of Mt. Pleasant, Iowa v.
Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.
1988). In ruling on a motion for summary judgment, all
reasonable inferences must be drawn in a light most favorable
to the non-moving party. Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005). The evidence
is not weighed and no credibility determinations are made.
Jenkins v. Winter, 540 F.3d 742, 750 (8th Cir.
the moving party demonstrates that there is no genuine issue
of material fact, the nonmovant must do more than show there
is some doubt as to the facts. Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Instead, the nonmoving party bears the burden of
setting forth affirmative evidence and specific facts by
affidavit and other evidence showing a genuine factual
dispute that must be resolved at trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Celotex, 477 U.S. at 324. “A dispute about a
material fact is ‘genuine' only ‘if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'” Herring v.
Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir.
2000) (quoting Anderson, 477 U.S. at 248). Judgment
as a matter of law is appropriate only when “the court
finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party.”
1983 provides that “[e]very person who, under color of
any statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.” 42 U.S.C.
§ 1983. “The first step in a § 1983 analysis
is to isolate the precise constitutional violation which is
alleged.” Rogers v. City of Little Rock,
Ark., 152 F.3d 790, 796 (8th Cir. 1998) (citations
Section 1983 Claims against the Police Defendants and Spence
in their individual capacities.
essential elements of a § 1983 claim are (1) that the
defendant(s) acted under color of state law, and (2) that the
alleged wrongful conduct deprived the plaintiff of a
constitutionally protected federal right.” Schmidt
v. City of Bella Villa, 557 F.3d 564, 571 (8th Cir.
2009) (citing DuBose v. Kelly, 187 F.3d 999, 1002
(8th Cir. 1999)). “A public official ‘acts under
color of law when he misuses power possessed by virtue of . .
. law and made possible only because he was clothed with the
authority of . . . law.'” Ramirez-Peyro v.
Holder, 574 F.3d 893, 900 (8th Cir. 2009) (quoting
United States v. Colbert, 172 F.3d 594, 596 (8th
Cir. 1999)). “[A] public official acts under color of
law when that official ‘abuses the position given to
him by the State.'” Id. (quoting West
v. Atkins, 487 U.S. 42, 49-50 (1988)).
said, government actors are entitled to qualified immunity
when they can show that their conduct did not violate
“clearly established statutory or constitutional rights
of which a reasonable person would have known.”
Treats v. Morgan, 308 F.3d 868, 871 (8th Cir. 2002)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Courts ask two questions when resolving a government
official's qualified-immunity claim: “[Do] the
facts, taken in a light most favorable to the party alleging
an injury, show a violation of a constitutional or statutory
right?” and, if so, was that right “so clearly
established that it would have been ‘clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted?'” Id. at 871-72
(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
If the answer to either question is “No, ” the
defendant is entitled to qualified immunity.
I: Destruction and/or Suppression of Exculpatory Evidence by
Boettgiheimer, Rudolph, and Stamper, in violation of the
Fifth and Fourteenth Amendments.
alleges that the officers investigating the Doe robbery
suppressed or destroyed evidence of his innocence.
Suppression of material exculpatory evidence is a violation
of the Fourteenth Amendment's Due Process Clause.
Brady v. Maryland, 373 U.S. 83, 87 (1963). The right
to due process is “quite clearly established, ”
Anderson v. Creighton, 483 U.S. 635, 639 (1987), and
the deliberate, bad-faith failure to protect or produce
exculpatory evidence is fatal to a claim of qualified
immunity, see White v. McKinley, 519 F.3d 806, 814
(8th Cir. 2008). To demonstrate a due process violation under
Brady, a plaintiff must show that “(1) the
prosecution suppressed evidence; (2) the evidence was
favorable to the defendant; and (3) the evidence was
material.” United States v. Tate, 633 F.3d
624, 630 (8th Cir. 2011) (quoting United States v.
Keltner, 147 F.3d 662, 673 (8th Cir. 1998)). Plaintiff
must also show that the suppression was done in bad faith.
White, 519 F.3d at 814.
specifically asserts that the Police Defendants: failed to
tell the defense about the calls made to Perry from Doe's
phone shortly after the robbery; failed to preserve the phone
itself, which was damaged or destroyed before Plaintiff's
defense attorneys could examine it ahead of trial; conducted
overly suggestive identifications, even after learning of
Esters; failed to preserve surveillance videos; failed to
tell the defense about Perry's statements regarding
Esters's involvement in the Doe robbery; failed to share
Perry's statements that she did not know McKay and that
he was not involved in the robbery; and failed to produce
text messages sent from Doe's phone that implicated
Esters. (Doc. 78.) In addition, Plaintiff asserts that the
Police Defendants “destroyed, lost, or purposely
withheld” the video recording of Perry's interview
by Boettigheimer and Rudolph. (Doc. 211 at 15, 53.) Plaintiff
argues that bad faith can be inferred from the officers'
actions after homicide detectives had told them
about Perry; he implies that the Police Defendants must have
been acting in bad faith because they knowingly ignored
evidence of his innocence despite the urging of homicide
detectives to investigate Esters for the robbery.
(Id. at 52-54.)
respond that SLMPD expended a significant amount of
investigative resources to solve the Doe robbery, including
dispatching five investigators to the scene of the crime.
(Doc. 185 at 8.) Their investigation simply led them to
believe McKay was Doe's robber, supported by
identifications by Jane and John Doe as well as interviews
with five supposed alibi witnesses. (Id. at 6-12.)
Moreover, the Does were shown Esters's photo and neither
identified him. (Id. at 12.) In short, the Police
Defendants assert that their actions indicate a good faith
Court concludes that Plaintiff's destruction and
suppression arguments are not supported by the evidence. Some
of Plaintiff's assertions are directly contradicted by
his own admissions. For instance, he alleges that his counsel
was not told about the calls to Perry or Perry's and
Esters's statements about McKay, but in his response to
the Police Defendants' statement of facts, Plaintiff
admits that his counsel was in possession of Doe's
official phone records from Sprint, “[t]wo DVDs and one
CD of statements given by Kaylin [P]erry, ” and
“Keith Esters' recorded statements.” (Doc.
211 at 20-25; Doc. 187-9 at 7-9.) Those items were in
Plaintiff's counsel's possession by March 2013, more
than eight months before his trial. These facts will not
support Plaintiff's claimed Brady violation.
suggestion that the Police Defendants (or some other
co-conspirator) intentionally destroyed Doe's cell phone
is likewise unsupported by the evidence. As an initial
matter, there is no evidence to suggest that the phone was
intentionally destroyed, let alone by or on behalf of the
Police Defendants. Secondly, the Court cannot conclude that
the phone contained any exculpatory evidence. Plaintiff's
primary concerns were the suggestion that a picture of
Plaintiff was found on Doe's phone and text messages sent
from Doe's phone that implicated Esters. (See
Doc. 211 at 57; Doc. 78.) But Plaintiff's counsel was
informed by the Circuit Attorney's Office that it was
“not in possession of any photographs of [Plaintiff]
from [Doe's] phone” and that “[t]he
detectives who investigated this case in addition to the
detective who examined [Doe's] phone in your presence
state that the SLMPD is not in possession of any photographs
of [Plaintiff] from [Doe's] phone.” (Doc. 187-9 at
8.) Further, Boettigheimer testified during his deposition
that he believed the search of the phone was fruitless-that
“nothing came off [Doe's] phone.” (Doc. 211-2
at 20.) In light of the Circuit Attorney's pre-trial
representation, Boettigheimer's testimony, and no
evidence to the contrary, the Court concludes that there is
insufficient evidence to conclude that the Police Defendants
destroyed Doe's phone or that doing so resulted in the
suppression of any exculpatory evidence.
same letter, the Circuit Attorney's Office stated that it
was “not in possession of any surveillance video of the
robbery and knows of none that were allegedly shown to
defendant as he has stated.” (Doc. 187-9 at 8.) In
addition, it represented that “[a]ll detectives of the
SLMPD who spoke with defendant have denied showing defendant
any video before, during or after any interview with
him.” (Id.) Plaintiff's self-serving but
unsupported allegation that the Police Defendants suppressed
or destroyed surveillance video cannot support a
Brady claim in the face of contrary evidence.
Plaintiff asserts that the Police Defendants “[did] not
allow [Doe] to view her real robber close in time to the
robbery.” (Doc. 78.) He apparently references the
February 25, 2013, photo line-up that included a picture of
Esters. (See Doc. 187-1 at 41.) At that meeting,
Jane Doe stated that Esters “resembled the individual
who robbed her at first” before distinguishing his
eyebrows, complexion, and facial hair. (Id.) John
Doe did not recognize any of the six photographs.
(Id.) The Court notes, however, that the Does had
participated in two earlier lineups on August 20 and 21,
shortly after the robbery and before the homicide detectives
had notified them of their suspicions surrounding Esters, in
which both had identified Plaintiff as the robber. Moreover,
Plaintiff's counsel was in possession of a police record
documenting the February 25 line-up and Jane Doe's
statements well in advance of Plaintiff's criminal trial,
so Plaintiff was well-equipped to challenge the
identification at trial.
any video recording of Perry's interview, the Court finds
that there is insufficient evidence to conclude that the
Police Defendants “destroyed, lost or purposely
withheld” anything, as Plaintiff argues. (Doc. 211 at
15.) Indeed, Plaintiff's argument relies entirely on
inference, based on Rudolph's deposition testimony, in
which he states that it is his understanding that every
interview in the homicide office is automatically recorded.
(See Doc. 211-14 at 36:16-37:8.) The Court does not
consider testimony by a robbery detective about the homicide
unit's video-recording protocol to be strong evidence
absent some additional evidence that he had prior experience
or specialized knowledge of the procedures. Moreover, unlike
many § 1983 cases alleging mishandling of evidence,
Plaintiff does not assert a department-wide conspiracy to
violate his constitutional rights; to the contrary, he
consistently holds up the homicide detectives as the standard
for a thorough and constitutional investigation. Given that
any video recording of Perry's interview would have been
in the custody of the homicide unit and that Plaintiff makes
no argument that someone in the homicide unit acted in
concert with the Police Defendants, the Court finds it
difficult to reach Plaintiff's asserted conclusion that
the recording was “destroyed, lost or purposely
withheld.” (Id. at 15.) Lastly, as noted
above, Plaintiff's counsel was given “[t]wo DVDs
and one CD of statements given by Kaylin [P]erry”
before trial. (Id. at 25.) Plaintiff offers no
evidence from which the Court could conclude that the
recorded interview included any different or additional
information or that such information would have been
while the Court notes that evidence of an alternative suspect
was material to Plaintiff's case, see Genesis Ins.
Co. v. City of Council Bluffs, 677 F.3d 806, 808 (8th
Cir. 2012) (citing Harrington v. State, 659 N.W.2d
509, 524 (Iowa 2003)), the Court cannot conclude, as a matter
of law, that the facts of this case, even when viewed in the
light most favorable to the Plaintiff, demonstrate a viable
claim that the Police Defendants suppressed or destroyed