Johnson v. Ball
MEMORANDUM AND ORDER -IT IS HEREBY ORDERED that Defendant's motions to exclude the expert report and opinion are GRANTED. (ECF Nos. 52 & 65 .)IT IS FURTHER ORDERED that Plaintiff's motion for partial summary judgment On Count I is DENIED . (ECF No. 39 .)IT IS FURTHER ORDERED that Defendant's motion for summary judgment is GRANTED with respect to qualified immunity and liability on Count I and respect to liability on Count II. (ECF No. 34 .) A separate judgment shall accompany the Memorandum and Order.. Signed by Magistrate Judge Terry I. Adelman on 3/11/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
GEORGE J. BALL,
No. 4:13CV586 TIA
MEMORANDUM AND ORDER
This matter is before the Court on the motions of Defendant Deputy George
J. Ball to exclude an expert report and opinion and the motion Plaintiff Jacqueline
Johnson for partial summary judgment with respect to Count I of her complaint
alleging that Defendant George J. Ball is liable pursuant to 42 U.S.C. §1983 for
her unlawful arrest on a charge of Arson, Second Degree in violation of the Fourth
and Fourteenth Amendments to the United States Constitution. Also before the
Court are Defendant’ s motions for summary judgment on Count I and on Count II,
a Missouri common law claim for malicious prosecution. For the reasons set forth
below, Defendant’s motions to exclude expert testimony are granted, Plaintiff’s
motion for summary judgment is denied and Defendant’s motion for summary
judgment is granted.
Motion to Exclude Expert Report
A. Facts and Arguments
In support of her motion for partial summary judgment, Plaintiff offers an
expert report prepared by a retired federal district judge who opines that Defendant
either omitted facts from his application for the arrest warrant which, if included,
would have revealed the absence of probable cause to arrest Plaintiff or that
Defendant could not have held an objectively reasonable belief that the facts
included in his affidavit supported a finding of probable cause to arrest Plaintiff.
The expert opined that no reasonable judge knowing all of the facts available
to Defendant, including the facts Defendant omitted from his probable cause
statement would have found that there was probable cause to believe that Ms.
Johnson committed a crime. Id. He further opined that Defendant knew of, but
omitted, the conclusion of the fire investigator, a law enforcement officer with
superior training and knowledge regarding the crime of arson, that there was no
probable cause to detain Plaintiff. Id. The expert concluded that if the omitted
facts had been included in the probable cause statement, a reasonable judge would
not have signed the warrant and Plaintiff would not have been arrested and
detained in violation of the Fourth Amendment. Id.
The parties do not dispute the qualifications of the expert, but disagree about
whether the expert’s report and opinion exceeds the permissible scope of expert
testimony. Defendant asserts that the report and opinion should be excluded
because it amounts to a legal conclusion that Defendant’s affidavit failed to
provide a basis for a finding of probable cause to charge and detain Plaintiff or in
the alternative that Defendant is not entitled to claim the defense of qualified
immunity with respect to Count I. In response, Plaintiff contends that the expert
opinion addresses an appropriate subject of expert testimony. Plaintiff asserts that
it is intended to assist the trier of fact in determining the questions of probable
cause and qualified immunity ,issues that Plaintiff characterizes as a mixed
questions of law and fact.
B. Applicable Law
Federal Rule of Evidence 702, governing the admissibility of expert
testimony, provides that:
[i]f scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts
of the case.
Fed. R. of Evid. 702
In determining whether an expert opinion is admissible, the trial court acts as
a “gate-keeper” to ensure that all expert testimony or evidence admitted at trial is
relevant, reliable and “will assist the trier of fact to understand the evidence or to
determine a fact in issue.” Daubert v. Merrill Dow Pharm., 509 U.S. 579, 589
“Legal conclusions do not qualify as expert opinions.”’ Jones v. Slay, No.
4:12–CV–2109 CAS, 2014 WL 2804407, at *11 (E.D. Mo. June 20, 2014). And
“[a] determination that a defendant’s legal conduct constitutes a constitutional
violation is a legal conclusion.” Id. (citing Wade v. Haynes, 663 F.2d 778, 784
(8th Cir.1981)); see also Schmidt v. City of Bella Villa, 557 F.3d 564, 570 (8th Cir.
2009) (concluding that expert opinions regarding the reasonableness of evidence
collection and strip search procedures were impermissible legal conclusions);
Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) (holding that expert
testimony regarding the reasonableness of police behavior in light of Fourth
Amendment standards was not admissible because it stated a legal conclusion).
In this case the ultimate issues presented by the parties’ cross motions for
summary judgment on Count I are: 1) whether Defendant violated Plaintiff's
Fourth and Fourteenth Amendment rights by omitting material facts from the arrest
warrant affidavit that would have revealed that there was no probable cause to
arrest Plaintiff for arson; and 2) whether Defendant nonetheless could have
mistakenly but reasonably believed that the facts in his possession established
probable cause for Plaintiff’s arrest on the arson charge.
Each of these issues presents a question of law reserved for resolution by the
court rather than the trier of fact. See, e.g., Estes v. Moore, 993 F.2d 161, 163 (8th
Cir. 1993) (stating that “[w]hile the existence of probable cause is a mixed
question of law and fact, the ultimate conclusion is a question of law”) (citation
omitted); Engle v. Townsley, 49 F.3d 1321, 1323 (8th Cir. 1995) (holding that
qualified immunity is a legal determination reserved for resolution by the court).
Consequently, where the material facts are not in dispute, expert testimony
offering an opinion with respect to the presence or absence of probable cause or
qualified immunity is improper because it invades the province of the court to
resolve such issues. See Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 816 (8th
Cir. 2010) (internal citation omitted); Estes, 993 F.2d at 161(quoting Fed.R.Evid.
For this reason, Plaintiff’s expert report and testimony expressing opinions
with respect to these issue is not admissible under Fed. R. Evid. 702 and
Defendant’s motions to exclude this expert testimony will be granted.
The Motions for Summary Judgment
Plaintiff asserts that she is entitled to summary judgment on Count I, her
claim under 42 U.S.C. § 1983, because the undisputed facts establish that there was
no probable cause to arrest and charge Plaintiff for the crime of arson, second
Defendant asserts that he is entitled to judgment on Count I because the facts
set forth in his statement establish probable cause for Plaintiff’s arrest. In the
alternative, Defendant argues that he is entitled to qualified immunity from liability
on Count I because he had an objectively reasonable belief that his statement was
sufficient to establish probable cause. In response, Plaintiff contends that
Defendant is not entitled to qualified immunity here because he acted in a
recklessly or intentionally misleading manner when he omitted facts regarding the
fire inspector’s findings and conclusions from his probable cause statement.
Finally, Defendant further asserts that he is entitled to summary judgment
with respect to Count II, Plaintiff’s claim for malicious prosecution, because the
undisputed facts fail to establish the elements required under Missouri law to prove
such a claim.
A. Standard of Review
Summary judgment is proper “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c)(2). The movant “bears the initial responsibility of informing the
district court of the basis for its motion,” and must identify “those portions of [the
record] . . . which it believes demonstrate the absence of a genuine issue of
material fact.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2011) (en banc) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In
response, the nonmovant “must do more than simply show that there is some
metaphysical doubt as to the material facts,” and must come forward with “specific
facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87, (1986); see also Briscoe v. Cnty. of St.
Louis, Mo., 690 F.3d 1004, 1011(8th Cir. 2012) (citation omitted). Therefore, “if a
nonmoving party who has the burden of persuasion at trial does not present
sufficient evidence as to any element of the cause of action, then summary
judgment is appropriate.” Id.
In considering motions for summary judgment courts view the facts in the
light most favorable to the nonmoving party. Torgerson, 643 F.3d at 1042
(quotations and internal citations omitted). But that requirement applies “only if
there is a genuine dispute as to those facts.” “A mere scintilla of evidence is
insufficient to defeat summary judgment and if a nonmoving party who has the
burden of persuasion at trial does not present sufficient evidence as to any element
of the cause of action, then summary judgment is appropriate.” Pedersen v. BioMedical App. of Minn., No. 14–1284, 2015 WL 64382, at *3 (8th Cir. Jan. 6, 2015)
(quoting Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010)).
“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions” and are not within the
province of the court on a motion for summary judgment. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)).
B. The Undisputed Facts
Having reviewed the record, including the parties’ statements of fact and the
exhibits, affidavits and deposition testimony offered in support thereof, the Court
finds the following undisputed material facts.
On the evening of September 27, 2010, a fire at Plaintiff’s residence in
Salem, Missouri caused extensive damage. On the evening of the fire, Roger
Hayes, an investigator with the Missouri State Fire Marshal’s Office conducted an
investigation at the scene and interviewed Plaintiff and her then estranged husband,
Eugene Crouch, Jr. After conducting his investigation at the scene, Investigator
Hayes preliminarily concluded that the cause of the fire was undetermined. As a
result of this determination and according to Missouri State Fire Marshal’s Office
protocols he did not test for the presence of accelerants at the site. 1
Approximately two months later on November 22, 2010, Mr. Crouch
appeared voluntarily at the Dent County Prosecuting Attorney’s Office and told her
that he had set a fire. The prosecutor stopped Mr. Crouch from sharing any
Investigator Hayes testified at his deposition that once a fire is deemed to be
of “undetermined” cause or origin, it is the policy of the Missouri State Fire
Marshal’s Office for the investigator to take no further action in the case, including
testing for the presence of accelerants at the scene of the fire.
additional information and directed Defendant, a law enforcement officer
employed by the Dent County Sheriff’s Department, to interview Mr. Crouch.
Mr. Crouch started by repeating his statement that he had set the fire. At this
juncture Defendant advised Mr. Crouch of his Miranda rights. Mr. Crouch stated
that he understood his Miranda rights and that he wanted to continue speaking with
Defendant. Mr. Crouch then asked if he could begin the interview with a joke and
said that he was smarter than the fire investigator. Defendant then advised Mr.
Crouch of his Miranda rights. 2
Mr. Crouch then told Defendant that he had set his wife’s house on fire
using fingernail polish remover and Zippo lighter fluid to ignite a pile of clothing
in a closet in the ground floor laundry room. Mr. Crouch first said that he had set
fire to Plaintiff’s house for revenge. Later in the interview, he stated that he had
set the fire because Plaintiff was in financial trouble, unemployed and behind on
her house payments. Id. Mr. Crouch further stated that when he offered to set the
fire, Plaintiff had agreed to the plan. Id.
Mr. Crouch also provided3 the following statement:
On Monday, September 27, 2010, at about 11:00 p.m.
[Plaintiff] came to pick me up at my sister’s. From there we
Later in the interview Defendant again advised Mr. Crouch of his
constitutional rights and Mr. Crouch signed a Miranda waiver form.
Defendant typed the statement as dictated by Mr. Crouch because Defendant
observed that Mr. Crouch was shaking and unable to write down his confession.
went back to her house at 1201 South MacArther [sic]. Earlier
in the day we had discussed burning the house. I had made a
statement to her that I could do it and no one would know it had
been set. As she waited in the garage I poured fingernail polish
remover on various clothing items in a closet in the laundry
room. I used Zippo lighter fluid on a belt from a robe. I lit the
belt on the robe to where it would reach the fingernail polish
remover and walked out. From there [Plaintiff] and I went to
Rolla. We went there to establish that we were not in town at
the time of the fire. We went to Wal-Mart in Rolla. I am not
sure how long we were there. I had purchased a couple pair of
jogging pants and a movie so we could say we were going to
watch a movie when we got back. I’m thinking we got back to
town between 1:30 and 2 AM. When we arrived at the house
the Fire Department was there and the fire was pretty much
extinguished. The State Fire Marshal spoke with us separately.
Everything I told him was true, except leaving out the part of us
going back to the house before going to Rolla. He spoke to us
and let us go.
(ECF No. 51-4: 103:5-10.)
Defendant confirmed the date, time and location of the fire using police
dispatch records. He sent two deputies to Plaintiff’s home to ask if she would
come to the Sheriff’s Department for an interview. Defendant also contacted
Investigator Hayes, who had investigated the fire on the night it occurred.
After Defendant contacted him on November 22, 2010, Investigator Hayes
interviewed Mr. Crouch and conducted a voice stress analysis test. Investigator
Hayes asked Mr. Crouch if he had started the fire at Plaintiff’s house and whether
Plaintiff knew that he planned to burn the house. Investigator Hayes testified that
Mr. Crouch answered both questions in the affirmative and that the voice stress
analysis test indicated that Mr. Crouch was telling the truth. (ECF No. 40-3:
62:10-63:9, 74:16-19, 75:5-10.) Investigator Hayes then interviewed Plaintiff who
denied that she had agreed to have Mr. Crouch start the fire and stated that she had
no involvement in setting the fire. (Id. at 65:8-9, 65:10-13.) Defendant was not
present for either interview and did not discuss his own interview of Mr. Crouch
with Investigator Hayes.
After the concluding the interviews, Investigator Hayes conferred with
Defendant. Investigator Hayes told Defendant that Mr. Crouch may have started
the fire but that it could not have started as Mr. Crouch described because the
physical evidence4 did not match Mr. Crouch’s “confession.” At that time
Investigator Hayes had concluded that the cause of the fire was undetermined and
therefore, according to policies of the Missouri State Fire Marshal’s Office,
declined to provide an affidavit stating there was probable cause to believe that Mr.
Crouch had started the fire.5 Investigator Hayes also suggested to Defendant that
Plaintiff should be released pending further investigation.6 (ECF No. 51-4: 54:5-
Investigator Hayes subsequently testified at his deposition that the physical
evidence suggested that the fire did not start in the closet showed only moderate
damage in the closet area, on visual inspection revealed no evidence of the use of
accelerant in the closet.
Investigator Hayes also testified at his deposition that pursuant to the policy
of the Missouri State Fire Marshal’s Office, an investigator may not submit a
probable cause statement unless he has first determined that the fire in question
was “incendiary,” or intentionally set. And in the absence of such a determination
a fire investigator does not submit a statement regarding the cause of the fire or
who might have set it.
Investigator Hayes eventually prepared a report documenting his
12, 63:10-64:7, 68:13-14, 90:23-24); (ECF No. 40-2 & 51-5: 85:3-6, 85:10-13.)
Defendant did not interview Plaintiff but drove her back to her residence.
During the drive Plaintiff asked Defendant if she could talk to him. Defendant
responded that she could if she wished to. Plaintiff then told Defendant that she
had driven Mr. Crouch to her house on the night of the fire and waited in her car
while Mr. Crouch went inside the house to get a book. (ECF No. 51-4: 92:25-93:1;
93:1-4.) Plaintiff also said that she and Mr. Crouch had gone to Wal-Mart in Rolla
after Mr. Crouch came out of her house. (ECF No. 51-4: 93:1-5.) She further
stated that she had not reported these facts to Investigator Hayes. (ECF No.
Johnson Deposition, 31:14-19).
Defendant returned to the Sheriff’s Department and prepared an incident
report concerning the fire. He also detained Mr. Crouch on the basis of his
investigation and conclusions, but completion of the report was delayed due to a
backlog of work in his office. Defendant did not obtain or view the report before
swearing out his probable cause statement. Investigator Hayes believed that the
fire started at either the top or the bottom of the laundry chute but he was unable to
conclusively determine the cause and point of origin of the fire. Investigator
Hayes stated that in this case he could not rule out the possibility that someone,
including Mr. Crouch, started the fire. Investigator Hayes’ conclusion that the
cause and origin of the fire were “undetermined” differed from the opinion of the
private fire investigator employed by Plaintiff’s insurance company who believed
the fire was incendiary.
Investigator Hayes also testified on deposition that if he had been able to
conclusively determine that the fire started at the bottom of the laundry chute, he
also would have declared that it had been intentionally set because there was
nothing at the bottom of the chute that could have accidentally caused the fire.
confession, jailed him pending the issuance of a warrant, and prepared and filed a
warrant application charging him with the crime of Arson, Second Degree. (ECF
Nos. 40-3 & 51-4: 65:2-12, 66:11-13, 69:18-70:5).
At his deposition in this case, Defendant acknowledged that arson
investigation is a specialized area of law enforcement for which he had no training
or expertise. Investigator Hayes testified at his deposition that the role of the
Missouri State Fire Marshal’s Office is to assist local law enforcement authorities
and therefore, that it is not unusual for the Missouri State Fire Marshal’s Office to
work a fire scene while local law enforcement works the criminal investigation.
On January 11, 2011, approximately six weeks after the warrant issued for
Crouch’s arrest, Defendant received correspondence from Plaintiff’s homeowner’s
insurance company requesting a copy of the incident report in order to “detect or
prevent fraud, material misrepresentation or material nondisclosure.” (ECF No.
51-3); ECF No. 51-4: 55:17-18, 55:22-24, 86:17-87:5.) Shortly thereafter, on
January 25, 2011, Defendant prepared and filed an affidavit, which provided in
pertinent part as follows:
[Jacqueline Johnson] committed the crime of Arson in the Second
Degree in that on or about 28 September, 2010, [Johnson] drove from
her house at 1201 South MacArthur Street in Salem, Dent County,
Missouri, to a residence which her then estranged husband, Eugene
Crouch, Jr. was staying at, picked Crouch, Jr. up and transported him
back to her residence at 1201 South MacArthur Street. Knowing what
Crouch, Jr. intended to do, [Johnson] waited in the garage of the
residence while Crouch Jr. entered the residence and set a fire, which
spread to other portions of the residence, rendering the house
uninhabitable. After Crouch, Jr. had set the fire [Johnson] transported
Crouch, Jr. to Wal-Mart in Rolla, Missouri with the intent of
establishing an alibi for them both by being seen in public far from the
scene of the fire. [Johnson] stood to gain an insurance settlement for
the loss of the house to a fire.
(ECF. No. 40-3 & ECF No. 51-4:5:25– 6:10, 79:13-15 .59. )
Defendant submitted this probable cause statement in support of an
application for a warrant for Plaintiff’s arrest. Defendant’s statement was the only
affidavit submitted in support of the arrest warrant application. Thereafter,
Plaintiff was charged with arson, second degree; arrested on the warrant and
confined for several days.
On June 29, 2011, the prosecutor filed a nolle prosequi in Plaintiff’s arson
case. Although he believed there had been probable cause to charge Plaintiff in the
case, the prosecutor filed a nolle prosequi due to his concern that he might be
unable to convince a jury of Plaintiff’s guilt. In light of this uncertainty, the
limited resources of his office and the burden on the courts and the public the case
presented, the prosecutor decided not to pursue a conviction in Plaintiff’s criminal
III. Applicable Law
A. Probable Cause
The Warrant Clause of the Fourth Amendment 7 requires that in order to
The guarantee against unreasonable searches and seizures contained in the
obtain a warrant to make an arrest, a law enforcement officer must make a factual
showing sufficient to constitute “probable cause.” See U.S. Const., Amend. IV;
Franks v. Delaware, 438 U.S. 154, 164 (1978). Probable cause to arrest exists if
“the totality of circumstances at the time of arrest is sufficient to lead a reasonable
person to believe that the suspect has committed or is committing an offense.”
Williams v. Decker, 767 F.3d 734, 742 (8th Cir. 2014). The required showing is
“‘[a] probability or substantial chance of criminal activity’”—not necessarily “‘an
actual showing of criminal activity.’” United States v. Smith, 715 F.3d 1110, 1115
(8th Cir .2013) (Smith II) (internal quotation omitted).
‘“[A] facially sufficient affidavit [in support of a search warrant] may be
challenged on the ground that in order to establish probable cause the officer
included deliberately or recklessly false statements.”’ Hawkins v. Gage County,
759 F.3d 951, 958 (8th Cir. 2104) (quoting United States v. Smith, 581 F.3d 692,
695 (8th Cir. 2009) (Smith I)). Omission of material information from an affidavit
can form the basis of a constitutional violation “if the additional information would
have negated probable cause.” United States v. Finley, 612 F.3d 998, 1003 n. 8
(8th Cir. 2010) (emphasis omitted). “An official who causes a constitutional
deprivation as a result of such an omission is subject to § 1983 liability.” Bagby v.
Fourth Amendment is incorporated in the Due Process Clause of the Fourteenth
Amendment and thereby has been made applicable to the States and local
governments and their officials. Colorado v. Bannister, 449 U.S. 1, 2 (1980)
Brondhaver, 98 F.3d 1096, 1098 (8th Cir. 1996).
A material omission from a supporting affidavit will result in a constitutional
violation if “(1) the police omitted facts with the intent to make, or in reckless
disregard of whether they thereby made, the affidavit misleading, and (2) the
affidavit, if supplemented by the omitted information would not have been
sufficient to support a finding of probable cause.” Hawkins, 759 F.3d at 959
(internal quotation omitted). Reckless disregard may be inferred from the fact of
the omission, but for the inference to be valid, the omitted information must be
“clearly critical” to the finding of probable cause. United States v. Jacobs, 986
F.2d 1231, 1235 (8th Cir. 1993) (internal quotation omitted); see also Smith I, 581
F.3d at 695. Put another way, an omission is deemed reckless if “[a]ny reasonable
person would have known that this was the kind of thing that a judge would wish
to know.” Jacobs, 986 F.2d at 1235.
B. Qualified Immunity
“Qualified immunity protects governmental officials from liability for civil
damages unless they have violated ‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Clayborn v. Struebing,
734 F.3d 807, 808 (8th Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Qualified immunity is intended to provide “protection to all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986). As such, it allows officials considerable room for
“mistaken judgments” and “reasonable errors.” Clayborn, 734 F.3d at 808; see
also Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011).
In the Warrant Clause context, an officer is entitled to qualified immunity if
he had a mistaken, but objectively reasonable, belief that he had probable cause to
obtain a warrant. Williams, 767 F.3d at 742-43; see also Dowell v. Lincoln Cnty.,
762 F.3d 770, 777 (8th Cir. 2014) (holding that an officer is entitled to qualified
immunity if he had a “mistaken, but objectively reasonable, belief that the suspect
committed a criminal offense”) (internal quotation omitted). Objective
reasonableness depends on “the totality of the circumstances.” Borgman, 646 F.3d
at 523; see also Dowell, 762 F.3d at 778. “When an officer is faced with
conflicting information that cannot be immediately resolved” he may have
“arguable probable cause” to arrest a suspect and is entitled to qualified immunity
from § 1983 liability flowing from that arrest. Borgman, 646 F.3d at 523.
When determining whether a state official is entitled to qualified immunity,
a court decides whether the facts alleged demonstrate that his conduct violated a
constitutional right and whether that right was clearly established at the time of the
violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001). It is within the
reviewing court’s discretion to decide which element of the qualified immunity
defense to address first. Pearson v. Callahan, 555 U.S. 223, 234 (2009).
A. The Fourth Amendment Violation
On the basis of the undisputed facts set forth above, the Court is satisfied
that the facts included in Defendant’s affidavit provided probable cause to arrest
and charge Plaintiff with Arson Second Degree.
Under Missouri law “[l]he elements of arson second degree are that a
building was on fire, the fire was of an incendiary origin, and the defendant
knowingly participated in the commission of the crime.” State v. Galvan, 798
S.W.2d 185, 188 (Mo. Ct. App. 1990)); Mo. Rev. Stat. § 569.050. Each of the
elements may be proven by circumstantial evidence and “[t]he circumstances need
not be absolutely conclusive of guilt and need not demonstrate the impossibility of
innocence.” Galvan, 798 S.W.2d at 188 (internal citation and quotation omitted).
Here, Defendant had a confession from Mr. Crouch that implicated Plaintiff
in the crime of arson. Plaintiff’s admission to Defendant that she had lied to
Investigator Hayes gave greater credence to Mr. Crouch’s account of what
occurred on the evening of the fire and Plaintiff’s involvement in those events. In
addition, Plaintiff corroborated the portion of Mr. Crouch’s confession stating that
he and Plaintiff were together on the night of the fire and had stopped at her
residence before they continued on to the Wal-Mart in Rolla; a trip Mr. Crouch
asserted was made to establish an alibi. Defendant also identified a possible
motive for the alleged arson based on the fact that Plaintiff was unemployed,
behind on her mortgage payments and would likely receive an insurance payout if
her house caught on fire. The letter Defendant received from Plaintiff’s insurer
regarding its investigation of the fire provided further support for this motive.
Finally, on the basis of Mr. Crouch’s confession there was probable cause to
believe that the fire may have been an incendiary one.
With respect to the alleged omissions, Plaintiff offers no evidence that the
Plaintiff intentionally left facts out of his statement. See Whalen v. Langfellow,
731 F.Supp.2d 868, 874 (D. Minn. 2010). Moreover, on the basis of a
reconstructed affidavit including the allegedly material omitted facts, the Court
cannot conclude that Defendant acted with reckless disregard in omitting certain
facts. If reconstructed to include the material information that Plaintiff asserts
should have been included, the affidavit would read as follows (additions in
Defendant committed the crime of Arson in the Second Degree in that
on or about 28 September, 2010, [Ms. Johnson] drove from her house
at 1201 South MacArthur Street in Salem, Dent County, Missouri, to a
residence where her then estranged husband, Mr. Crouch was staying
at, picked Mr. Crouch up and transported him back to her residence at
1201 South MacArthur Street. Knowing what Crouch Jr. intended to
do, [Ms. Johnson] waited in the garage of the residence while Mr.
Crouch Jr. entered the residence and set a fire, which spread to other
portions of the residence, rendering the house uninhabitable. After Mr.
Crouch had set the fire [Ms. Johnson] transported Mr. Crouch to WalMart in Rolla, Missouri, with the intent of establishing an alibi for
them by being seen in public far from the scene of the fire. [Ms.
Johnson] stood to gain an insurance settlement for the loss of the
house to a fire. The facts set forth herein were derived from a
confession made by Mr. Crouch on November 22, 2010, in which he
explained where and how he set the fire. When Mr. Crouch
confessed, he first said that he had set the fire “for revenge” and then
that he had set the fire so that [Ms. Johnson] could get insurance
Mr. Crouch stated that he started the fire in a closet on the main level
of the residence by pouring fingernail polish remover on a pile of bed
clothes and other laundry items in the closet and then saturating a
belt in a cloth robe with lighter fluid and igniting the belt.
On the night of the fire, a fire marshal from the Missouri Division of
Fire Safety investigated the fire at [Ms. Johnson’s] residence and
interviewed [Ms. Johnson] and Mr. Crouch.
After Mr. Crouch’s confession two months later the fire marshal
interviewed him again and conducted a voice stress analysis that
indicated Mr. Crouch was truthful when he stated that he had set the
fire and that [Ms. Johnson] knew that he intended to set the fire.
Hayes also interviewed Plaintiff and she denied any involvement in
the fire. He believed [Ms. Johnson] to be truthful
The fire marshal stated that Mr. Crouch might have set the fire but
that he did not believe Mr. Crouch was telling the truth about the
manner in which it was set because his statements were not consistent
with the physical evidence. The fire marshal did not prepare a
probable cause statement. .
[Ms. Johnson] and Mr. Crouch admitted to this officer that they had
lied to the fire marshal. [Ms. Johnson] stated that she had in fact
gone to her house with Mr. Crouch on the night of the fire although
she did not tell the fire marshal that she had done so.
At most the inclusion of the allegedly omitted facts shows that there was
some question about the cause and origin of the fire, but the Court cannot conclude
that the omitted facts were “critical” or that their inclusion mandated a
determination that there was no probable cause to arrest Plaintiff.
Specifically, the reconstructed affidavit does not require a conclusion that
the fire was not or could not have been an incendiary one. Although Investigator
Hayes did not believe that Mr. Crouch’s explanation matched the physical
evidence he had stated that Mr. Crouch may have set the fire. And although
Investigator Hayes was uncertain about whether Mr. Crouch was telling the truth
and believed that Plaintiff had no involvement in the alleged crime, the officer
knew that each of these individuals admitted that they had lied or, at the very least,
intentionally withheld important information from Investigator Hayes.
The affidavit is not required to prove every element of the offense.
Determining “if probable cause exists is not an exact science.” Brodnicki v. City of
Omaha, 75 F.3d 1261, 1265 (8th Cir.1996). ‘“[T]he probability, and not a prima
facie showing, of criminal activity is the standard of probable cause.’” Bunton v.
Randall, No. 4:13CV00610–JLH–JTK, 2015 WL 745747, at *5 (E.D. Ark. Feb.19,
2015) (quoting Hannah v. City of Overland, 795 F.2d 1385, 1389 (8th Cir.1986) at
1389 (internal quotations and citations omitted)). “Probable cause exists if ‘the
totality of the facts based on reasonably trustworthy information would justify a
prudent person in believing the individual arrested had committed . . . an offense.’”
Bunton, 2015 WL 745747, at *5 (quoting Flynn v. Brown, 395 F.3d 842, 844 (8th
Plaintiff makes much of the fact that the Investigator Hayes declined to find
probable cause to charge Plaintiff at the time of Mr. Crouch’s confession in
November. Although Plaintiff intimates that Defendant lacked the expertise and
authority required to assess probable cause in a case of arson, she offers no legal
authority indicating that such expertise is required to support a finding of probable
cause here. Investigator Hayes refused to make a definitive statement regarding
the cause and origin of the fire and therefore, according to his agency’s policy
could not issue a probable cause statement. However, nothing in the record
indicates that law enforcement was legally precluded from finding probable cause
for a charge of arson in the absence of a corroborating statement from the fire
investigator. See ECF. No. 51-6 at 3 (prosecutor’s testimony pointing out that a
fire investigator’s probable cause statement is not required to establish probable
cause for a charge of arson). Therefore, Investigator Hayes’ testimony that he
could not imagine writing a probable cause statement in this case is immaterial.
His after- the -fact deposition testimony has no bearing upon the validity of
Defendant’s probable cause assessment which must be measured by the totality of
the circumstances known to Defendant at the time of the arrest.
Therefore, for the reasons set forth above, Defendant’s motion for summary
judgment with respect to liability on Count I is granted and Plaintiff’s motion is
B. Qualified Immunity
Even if the undisputed facts had established a Fourth Amendment violation
here, the Court is satisfied that Defendant would be entitled to qualified immunity
from liability with respect to Count I. First, it is clear that the constitutional right
on which Count I is based was clearly established at the time that she was charged.
“The Fourth Amendment right of citizens not to be arrested without probable cause
is indeed clearly established.” Williams v. City of Alexander, Ark., 772 F.3d 1307,
1313 (8th Cir. 2014) (internal quotation omitted). “Furthermore, it is ‘clearly
established that the Fourth Amendment requires a truthful factual showing
sufficient to constitute probable cause’ in a sworn affidavit.” Id. (quoting Burk v.
Beene, 948 F.2d 489, 494 (8th Cir.1991)).
Nonetheless, “law enforcement officers are entitled to qualified immunity if
they arrest a suspect under the mistaken belief that they have probable cause to do
so–provided that the mistake is objectively reasonable.’” Bunton, 2015 WL
745747, at *5 (quoting Smithson v. Aldrich, 235 F.3d 1058, 1062 (8th Cir. 2000)).
Relying on United States v. Jacobs, 986 F.2d at 1235, Plaintiff asserts, however,
that Defendant cannot claim qualified immunity because “[a]ny reasonable person
would have known” that the opinion of fire investigator that the physical evidence
did not match Mr. Crouch’s confession “was the kind of thing that a judge would
wish to know.” Jacobs, 986 F.2d at 1235.
The Court rejects this argument as inapt. Jacobs addresses the question of a
substantive fourth amendment violation in the context of a request for suppression.
It does not speak to the issue of qualified immunity. For purposes of the qualified
immunity analysis the appropriate question is whether “an officer . . . faced with
conflicting information that cannot be immediately resolved” has “arguable
probable cause” to arrest a suspect. Borgman, 646 F.3d at 523. The fact that the
charges filed against Plaintiff were eventually dismissed, or that Defendant may
have had a mistaken belief that Plaintiff violated the law, does not mean that his
actions violated Plaintiff’s constitutional rights. ‘“The Constitution does not
guarantee that only the guilty will be arrested.’” Bunton, 2015 WL 745747, at *5
(quoting Baker v. McCollan, 443 U.S. 137, 145 (1979)). ‘“If it did, § 1983 would
provide a cause of action for every defendant acquitted—indeed, for every suspect
released.’” Id. (quoting Baker, 443 U.S. at 145). Here, on the basis of the
undisputed facts of record, the Court is confident that despite the conflicting
information available to Defendant regarding the cause of the fire his belief that
there was probable cause for Plaintiff’s arrest was objectively reasonable. See
Bunton, 2015 WL 745747, at *5; Whalen, 731 F.Supp.2d at 874.
Accordingly, Defendant’s motion for summary judgment with respect to his
claim of qualified immunity on Count I is granted.
C. Malicious Prosecution
Under Missouri law “[t]he plaintiff must plead and prove six elements in
order to prevail on a malicious-prosecution claim: (1) commencement of an earlier
prosecution against the plaintiff; (2) instigation of the prosecution by the
defendant; (3) termination of the proceedings in the plaintiff’s favor; (4) absence of
probable cause 8 for the prosecution; (5) malice by the defendant in instituting the
prosecution; and (6) damage to the plaintiff resulting from the prosecution.”
Copeland v. Wicks, No. ED 101012, 2015 WL 343644, at *6 (Mo. Ct. App. Jan.
27, 2015) (citing Crow v. Crawford & Co., 259 S.W.3d 104, 114 (Mo. Ct. App.
2008)). A defendant in a malicious-prosecution suit may establish a right to
summary judgment by showing facts that negate any element of the malicious
prosecution claim. Copeland, 2015 WL 343644, at *6.
Here, even if the Court presumes that Plaintiff could prove the other
elements of a malicious prosecution claim it is clear that she fails to offer any
evidence from which a jury could conclude that Defendant acted with the required
“malice.” For purposes of a malicious prosecution claim, “malice” is defined as
“any purpose other than that of bringing an offender to justice.” Restatement
(Second) of Torts § 653. At most, the record supports a conclusion that Defendant
omitted certain facts from the affidavit in support of the arrest warrant. Moreover,
there is no evidence on the record that Defendant’s purpose here was anything
other than to bring the individual[s] responsible for the fire to justice.
“Federal cases analyzing section 1983 claims and Missouri cases analyzing
state malicious-prosecution claims define the term “probable cause” differently.”
Copeland v. Wicks, No. ED 101012, 2015 WL 343644, at *1 (Mo.Ct. App. Jan. 27,
For these reasons, Defendant’s motion for summary judgment with respect
to Count II will be granted. Torgerson, 643 F.3d at 1042 -1043 (explaining that
‘“[w]here the record taken as a whole could not lead a rational trier of fact to find
for the nonmoving party, there is no genuine issue for trial’”) (quoting Ricci v.
DeStefano, 557 U.S. 557, 586 (2009)).
IT IS HEREBY ORDERED that Defendant’s motions to exclude the
expert report and opinion are GRANTED. (ECF Nos. 52 & 65.)
IT IS FURTHER ORDERED that Plaintiff’s motion for partial summary
judgment On Count I is DENIED. (ECF No. 39.)
IT IS FURTHER ORDERED that Defendant’s motion for summary
judgment is GRANTED with respect to qualified immunity and liability on Count
I and respect to liability on Count II. (ECF No. 34.)
A separate judgment shall accompany the Memorandum and Order.
Dated this 11th day of March, 2015.
Terry I. Adelman
TERRY I. ADELMAN
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?