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McKay v. City of St. Louis

United States District Court, E.D. Missouri, Eastern Division

March 31, 2019

CORNELL MCKAY, Plaintiff,
v.
CITY OF ST. LOUIS, MISSOURI, et al., Defendants.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This 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.)

         Also 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.

         Background[1]

         On 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.

         Doe's 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.

         A SLMPD 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 Lamont Carter.

         On 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 investigation.

         Immediately 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 Plaintiff.

         On 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.

         Representatives of the Circuit Attorney's Office commented publicly that the investigation had been successful.

         Meanwhile, 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.

         On 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.

         Based 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.

         On 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.)

         Probation 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, 197.)

         In its 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).

         Legal Standards

         Pursuant 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. 2008).

         Once 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.” Fed.R.Civ.P. 50(a).

         Analysis

         Section 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 omitted).

         I. Section 1983 Claims against the Police Defendants and Spence in their individual capacities.

         “The 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)).

         That 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.

         COUNT I: Destruction and/or Suppression of Exculpatory Evidence by Boettgiheimer, Rudolph, and Stamper, in violation of the Fifth and Fourteenth Amendments.

         Plaintiff 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.

         Plaintiff 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.)

         Defendants 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 investigation. (Id.)

         The 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.

         Plaintiff's 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.

         In the 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.

         Next, 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.

         As to 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 exculpatory.

         Ultimately, 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 ...


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