United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Motions for Summary Judgment
filed by Defendants Lincoln County Prosecuting Attorney Leah
Askey-Chaney (“Chaney”) (Doc. 78), Lincoln County,
Missouri (Doc. 82), and Lincoln County Sheriff’s
Department Sergeant Ryan McCarrick, Detective Michael Merkel,
and Detective Patrick Harney (collectively, “the Police
Defendants”) (Doc. 84). All three motions have been
extensively briefed. (Docs. 79, 83, 85, 87, 105-107, 108-110,
127-131, 133, 139, 140, 143.) Because all of these motions
involve similar legal issues and intertwined facts, the Court
will address them together.
before the Court are Defendants’ Joint Motions to
Exclude the Expert Testimony of Judge Glenn Norton, (Doc.
80), and Jeffrey J. Noble (Doc. 88). Plaintiff has responded
in opposition to both motions (Docs. 104, 112), and
Defendants have replied (Docs. 126, 142).
Tuesday, December 27, 2011, Elizabeth “Betsy”
Faria was stabbed approximately fifty-five times and left to
die on the floor of her home, the knife still lodged in her
neck. At the time, Betsy was receiving regular chemotherapy.
Throughout that day, Betsy and her husband, Plaintiff Russell
“Russ” Faria, traded messages and phone calls
regarding their evening plans. Russ, who worked from home,
told Betsy that he intended to go to his friend Michael
Corbin’s house, where Corbin had for many years hosted
a regular Tuesday game night for Russ and four others. Betsy
and Russ decided that Betsy would leave her afternoon
chemotherapy appointment and head to her mother’s
house, which was near Corbin’s, and that Russ would
pick her up on his way home from game night.
finished work and left the Faria home around 5:00 p.m. On his
way to Corbin’s, he made four stops: from 5:16 to 5:20,
he stopped to get gas at a Conoco station in Troy, Missouri;
from 5:31 to 5:32, he stopped to buy cigarettes at a U-Gas in
Wentzville; at 5:52 he bought a bag of dog food at
Green’s Country Store in Lake St. Louis; and from 5:56
to 5:58 he was in an O’Fallon, Missouri Quicktrip
buying two bottles of iced tea. His first, second, and fourth
stops were recorded on camera and he had a timestamped
receipt from Green’s.
got to Corbin’s around 6:00 p.m. Regular game night
participant Richard May was stuck at work, leaving the group
without the six players necessary for their usual game.
Nevertheless, the other five met, smoked marijuana, and
around 9:00 p.m., part-way through their second film, the
group split up. At some point during the day, Betsy had told
Russ that her friend Pamela “Pam” Hupp would be
picking her up from her mother’s house, so Russ headed
home. On the way, he stopped at the Arby’s on Raymond
Drive in Lake St. Louis. His receipt shows that he ordered
two junior cheddar melts at 9:09 p.m. Russ then made the
twenty-five-mile trip home-which officers would later clock
at twenty-six minutes and thirty seconds-grabbed the dog food
from the back seat of his car, and walked inside. He set the
dog food down just inside the door, took off his coat, and
saw Betsy lying on the floor.
9:40:10 p.m., he was connected with a 911 operator.
Throughout the call, Russ was sobbing. He told the dispatcher
that he believed his wife had followed through on her
previously stated intention to commit suicide and mentioned
that he could see the knife sticking out of her neck. The
call lasted exactly ten minutes; shortly before Russ hung up,
Lincoln County Sheriff’s Deputy Christopher
Hollingsworth arrived on the scene. Recognizing that
Betsy’s wounds were inconsistent with a suicide,
Hollingsworth took Russ out of the house. The house was
cleared and medical and fire personnel went inside. The
family dog was in the back yard on a chain and a second knife
was found under the pillow Betsy had been using on the couch.
Captain Robert Shramek noted that Betsy’s body was cold
and so stiff that her entire body moved when he tried to
manipulate her arm and shoulder. Based on his significant
experience with dead bodies, Shramek concluded that Betsy had
been dead for at least two hours. Fire Lieutenant Martin
Czarnecki believed Betsy had been dead for at least 30
minutes. Ambulance team supervisor Michael Quatrocchi entered
the Faria home shortly after the fire fighters. He noted that
that the skin on Betsy’s arm was not pliable and
concluded that she had rigor mortis consistent with someone
who had been dead for some time. Paramedic Kevin Altman was
also at the scene and described the blood around
Betsy’s body in his written report as dark, consistent
with having sat for a significant period of time.
first responders were at the scene, the Lincoln County
Sheriff initiated a “Major Case Squad
(“MCS”) call-out, ” which is designed to
pool the resources of local law enforcement organizations to
respond to cases of serious crimes. St. Peters Police
Lieutenant Mark Shimweg was placed in charge and McCarrick
was assigned to be the “report writer” and second
11:00 p.m., Hollingsworth drove Russ to the Lincoln County
Sheriff’s Office. Over the next ten and one half hours,
Merkel and City of Troy Police Major Raymond Floyd
interrogated Russ. Russ told a consistent story about his
whereabouts that night, including the multiple stops to and
from Corbin’s house. Russ’s clothes were clean
and fingernail clippings taken during the interrogation
contained no relevant evidence. Later analysis would confirm
that there was no DNA from Betsy on Russ’s clothes,
feet, or hands.
MCS officers were simultaneously verifying Russ’s
alibi, and all of those present at game night confirmed
Russ’s timeline and admitted that they had smoked
marijuana. At some point, the MCS obtained a warrant to
search the Faria house. At the Faria house, there were no
bloody footprints, no bloody or wet towels, no indications of
wiping in the blood, and dust and dog treats on the floor,
leading crime scene investigators (“CSIs”) to
conclude that there had been no clean up. The only visible
instances of blood found during the search were on a light
switch plate in the bedroom and on a pair of Russ’s
slippers in the bedroom closet. Russ’s car was swabbed
and eventually determined to be negative for blood.
assessing the scene, CSIs noticed a dark mark on
Betsy’s pants that resembled a paw print. It was
thought that this might be relevant because the dog was
unfriendly to most people and only someone she knew would
have been able to get her from the murder scene to the
backyard chain. CSI Tiffany Fischer asked Defendant Detective
Patrick Harney, the MCS officer working with the CSIs, for
authorization to swab the Farias’ dog’s paw for
DNA analysis. According to fellow CSI Amy Buettner, Harney
spoke to Chaney, who by then was routinely participating in
MCS briefings, and was told to forego the swab and instead
take a print of the dog’s paw. No. forensic conclusion
as to whether the print matched the mark was ever reached.
approximately 2 p.m. the day after the murder, Russ was taken
to the Lake St. Louis Police Department for a
polygraph. The test indicated deception when he was
asked whether he killed Betsy or knew who did. Following the
polygraph, Russ was handcuffed and placed under arrest for
the murder of his wife.
two MCS officers were sent to interview Pam Hupp. They
arrived at her home at 6:40 a.m., the morning after Betsy was
killed. Hupp answered the door with wet hair and informed the
officers that she had just finished showering. She also told
the officers that she had showered the night before, after
returning home from dropping off Betsy. Throughout her
interview, Hupp said a number of suspicious things. For
instance, she initially told the officers that she had not
gone into the Faria home when she dropped off Betsy but later
stated twice that she had. Likewise, she told the officers
that she and Betsy were very close friends who saw each other
on a near-daily basis but that she was not sure about the
route to or from Betsy’s home. The officers asked Hupp
about the fact that Betsy had recently named Hupp as
beneficiary on a $150, 000 life insurance policy, replacing
Russ. Hupp told officers that Betsy wanted her daughters to
have the money but did not trust them to manage it
responsibly, and that she didn’t trust Russ. Hupp also
told the officers that the Farias’ marriage was on the
rocks and that Russ had been physically abusive, on one
occasion holding a pillow over Betsy’s face when she
was sleeping, though none of those allegations could be
corroborated by Betsy’s other friends or family. Hupp
also told officers about a document on Betsy’s computer
that indicated that Betsy was afraid of Russ. Despite stating
that she had never seen the document, Hupp described the
substance of the document in detail.
officers also examined Hupp’s phone. There were
numerous text messages between Hupp and Betsy on the day of
the murder, including several in which Hupp insisted on
picking up Betsy from her chemotherapy appointment and taking
her home, despite the fact that Betsy’s mother’s
house was an hour-long round trip for Hupp compared to a
short detour for Russ on the way home from game night. When
officers asked Hupp about a missed 7:27 p.m. call from
Hupp’s phone to Betsy’s, she told them that she
was calling to inform Betsey that she had reached the part of
the drive where she knew the rest of the way home. She later
offered two slightly different reasons for calling.
afternoon of December 29, as Russ was approaching twenty-four
hours in custody following his arrest at the Lake St. Louis
Police Department, McCarrick submitted to Chaney a probable
cause statement, seeking an arrest warrant and formal charge
against Russ. Chaney refused, and Russ was released. As she
was leaving the building that evening, Chaney was asked for
comment by a local news reporter. The reporter later wrote
that Chaney was hopeful that they could find sufficient
evidence to charge Russ with Betsy’s murder.
continued to investigate after Russ was released. On
Thursday, December 29, two days after Betsy’s murder,
MCS officers re-interviewed Pam and Mark Hupp. Meanwhile,
officers were discussing the propriety of conducting a
luminescence test at the Faria home to identify any invisible
traces of blood at the scene. Ultimately, the MCS started
releasing officers and, on December 31, 2014, it formally
Examiner Kamal Sabharwal, M.D., performed an autopsy with
McCarrick and Officer Brett Mitchell present. Dr. Sabharwal
later testified that the first responders’ descriptions
of Betsy’s body at 9:50 p.m. on the night of her death
were consistent with rigor mortis two to four hours after
death. However, evidence showed that Betsy died sometime
after 7:00 p.m. Around 7:00, Betsy had called her friend
Laurel Moran to cancel a scheduled tennis game due to
Betsy’s blood results. In addition, Betsy’s
daughter, Leah Day, told police that she also spoke to her
mother on the phone around 7:00 p.m. on the night of her
murder. Day was headed to the cell phone store to get a new
phone and needed Betsy to speak to the store representative
as the account holder to authorize the upgrade. Betsy assured
Day that she would be sitting on the couch with her phone
next to her, awaiting Day’s call, but when Day called
from the store at 7:21, Betsy didn’t answer. Betsy
failed to pick up Day’s subsequent calls at 7:26 and
7:30. Betsy also had a missed call from Hupp at 7:27 p.m.
last evidence that Betsy was alive was her participation in a
7:04 p.m. voicemail made from Hupp’s phone to
Hupp’s husband Mark. Russ called 911 at 9:40 p.m.,
creating a time-of-death window of 7:04 p.m. to 9:40 p.m.
When asked by investigators whether Betsy could have been
killed shortly before Russ called 911, Dr. Sabharwal admitted
that there was a controversial medical theory that, in
extraordinarily rare instances, a body could exhibit the
signs of advanced rigor mortis immediately after death.
Tuesday, January 3, 2018, one week after Betsy was murdered,
McCarrick and Chaney presented a signed affidavit in support
of a search warrant to conduct a “BlueStar”
luminescence test of the Faria home to look for invisible
blood residue that might indicate a clean-up. The warrant was
issued and Merkel, McCarrick, Evidence Technician Tabitha
Rene Wilson, and Lincoln County Sheriff’s Department
employee Rebecca Mueller were present for the test.
home had been released some days prior, such that the
investigators could not be certain that any evidence they
found was present on the night of the murder. Nevertheless,
the investigators sprayed the living room and kitchen.
Luminescence was observed on the handle of the towel drawer
in the kitchen but nowhere else, suggesting that the drawer
had been used by someone with bloody hands who knew where to
find towels in the Faria home. In addition, the investigators
reported luminescence on the vinyl floor between where Betsy
was found and the back door. Together with the supposedly
bloody paw print, it was surmised that the test was reacting
to drops of blood left by someone while putting the dog in
the back yard.
the test was reacting to evidence of the murder was not
universally agreed upon. Mueller testified that she saw
luminescence but did not see any pattern that might suggest
blood splatter. Similarly, Wilson remembered no pattern.
Merkel, however, testified that he remembered a path of
luminescence leading in a “general direction.”
Some of the photographs of the luminescence were of extremely
poor quality owing to an improper setting or camera
malfunction, but others were clear and showed no path or
pattern. In any event, McCarrick presented Chaney with a new
probable cause statement that added the results of the
BlueStar test and Cheney submitted charges against Russ for
first-degree murder and armed criminal action and a grand
jury indicted him.
the BlueStar test, investigators had removed parts of tile
and cabinetry that showed luminescence and transported them
to a forensic lab for testing; while a BlueStar test
illuminates the presence of human blood, it also illuminates
other substances and therefore any positive result must be
tested to determine whether human DNA is present. Lab tests
conducted after Russ had been charged later revealed that the
tile and cabinetry were negative for human blood. A report
detailing the results of the BlueStar test was signed by
Merkel fifteen months after the test was done. The
investigating officers eventually concluded that the negative
result must have been due to dilution or other corruption of
November 2013, a jury convicted Russ and he was sentenced to
life in prison. On direct appeal, the Missouri Court of
Appeals found that the trial court had erred by granting the
prosecution’s motion to exclude evidence of an
alternative suspect-Pamela Hupp-and remanded the case for a
new trial. In November 2015, Russ waived his right to a jury
and was found not guilty following a bench trial.
Defendant’s Motions for Summary
19, 2016, Russ filed this suit under 28 U.S.C. § 1983,
naming McCarrick, Merkel, Harney, Chaney, and Lincoln County,
Missouri as defendants and advancing the following counts:
Counts I and II – Unconstitutional seizure (McCarrick);
Count III – Unconstitutional seizure (Chaney);
Count IV – Conspiracy to violate constitutional rights;
Count V – Malicious prosecution (McCarrick and Merkel);
Count VI - Liability under Monell v. Dep’t of Soc.
Servs. of City of New York (Lincoln County);
(Doc. 7.) Since then, Count I was voluntarily dismissed with
prejudice (Doc. 95), and Count V was voluntarily dismissed
without prejudice (Doc. 39). Defendants now move for summary
judgment on the remaining counts, arguing that they did not
violate Russ’s constitutional rights and that they are
entitled to immunity.
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).
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). On the
other hand, judgment as a matter of law is appropriate only
when there is no legally sufficient evidentiary basis on
which a reasonable jury could find for the nonmoving party.
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)). ...