Ferguson v. Short et al

Filing 132

ORDER entered by Judge Nanette Laughrey. For the reasons set forth in the attached Order, Boone County's and the City of Columbia's Motions to Dismiss are denied. White's Motion to Dismiss as it relates to Counts III and V is denied. Count IV is dismissed against Boehm, Monticelli, and White, without prejudice. Ferguson may amend Count IV to bring a malicious prosecution claim under Missouri state law. Any amendment to Count IV must be filed within twenty days of the date of this Order. The official capacity claims against Boehm and Crane in Count VI are dismissed with prejudice. Count VIII is dismissed with prejudice. (Cross, Ashley)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

RYAN FERGUSON,
Plaintiff,
v.
JOHN SHORT, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 2:14-cv-04062-NKL

ORDER
In this civil lawsuit, Plaintiff Ryan Ferguson alleges violations of federal
and state laws arising out the Defendants’ investigation of Ferguson and his prosecution
for the murder of Kent Heitholt. Defendants Short, Nichols, Westbrook, Liebhart, Stroer,
and Simons were detectives at the Columbia, Missouri Police Department during the
investigation and prosecution of Ferguson. Defendant Boehm was the Chief of Police at
the time and Defendant Monticelli was a sergeant in the Department. Defendants Haws
and White were investigators with the Boone County Prosecuting Attorney’s Office.
Defendant Crane was the Boone Country Prosecuting Attorney who prosecuted
Ferguson. The City of Columbia and Boone County are also Defendants.
In his First Amended Complaint, [Doc. 35], Ferguson claims that certain
Defendants violated his federal rights under 42 U.S.C. § 1983 by destroying and
suppressing evidence (Count I), fabricating evidence (Count II), recklessly or
intentionally failing to investigate (Count III), maliciously prosecuting him (Count IV),
1

and conspiring with each other (Count V). He alleges the City of Columbia and County
of Boone are liable for these acts because they had a custom or policy to permit such
conduct. (Count VI). He also alleges Missouri state law violations for false arrest
(Count VII) and defamation (Count VIII).
Pending before the Court are Motions to Dismiss filed by White, Boone County,
the City of Columbia, Boehm, Monticelli and Crane. White’s Motion to Dismiss is
granted as it relates to Count IV and denied as to Counts III and V. The Motions to
Dismiss filed by the City of Columbia and Boone County are denied. The Motions to
Dismiss filed by Crane, Monticelli and Boehm are granted as they relate to Count IV, VI
and VIII.
I.

Background

The purpose of this Order is to determine whether certain allegations made by
Ferguson in his First Amended Complaint are sufficient to state a claim recognized by
law. At this stage of the litigation, the Court makes no findings of fact but instead relies
solely on the following allegations made by Ferguson in his First Amended Complaint.
On November 1, 2001, Kent Heitholt was murdered next to his car. Despite an
investigation by the Columbia Police Department and the Boone County Prosecuting
Attorney’s Office, no arrests were made for more than two years. In November 2003,
Charles Erickson, a man in the same graduating class as Ferguson and who was with
Ferguson the night of Heitholt’s murder, read an article about the Heitholt murder.
Erickson began to experience feelings of paranoia after a composite sketch provided by a
witness at the crime scene resembled him.
2

The night of the murder, Erickson and Ferguson had been at a bar located in
downtown Columbia. Erickson and Ferguson left the bar shortly before it closed at 1:30
a.m. Erickson ingested drugs and alcohol that night. The next morning, Erickson had no
memory of leaving the bar or arriving at his house. In January 2004, Erickson expressed
concern to Ferguson that he had repressed the murder. A bystander overheard the
conversation and informed the Columbia Police Department.
In March 2004, Erickson came to the Columbia Police Department. His behavior
and appearance suggested he was mentally impaired and under the influence of alcohol or
drugs. After Erickson repeatedly gave information that was inconsistent with the
evidence recovered from the crime scene, Defendants Short and Nichols provided
Erickson information and details about the murder and coerced a confession out of him,
which also implicated Ferguson. After obtaining Erickson’s fabricated confession,
Defendants Short, Nichols, Westbrook, Liebhart, Stroer, Simons, Monticelli and Boehm,
(Columbia Police Officer Defendants) fabricated or coerced additional witness statements
to corroborate Erickson’s statements. They also destroyed or suppressed evidence that
would impeach statements made by Erickson about the night of the murder and other
evidence that would tend to show Ferguson was not guilty of the murder.
In March 2004, Ferguson was arrested for the murder of Heitholt. Ferguson was
never presented in a lineup to two possible witnesses. The Columbia Police Officer
Defendants did not investigate the last person to see Heitholt alive, who also made
numerous inconsistent statements about the night of Heitholt’s murder and who had had a
recent dispute with Heitholt. The Columbia Police Officer Defendants continued to
3

fabricate evidence and reports and suppress evidence that would tend to show Ferguson
was not guilty of Heitholt’s murder. They also met and agreed to use fabricated
evidence to induce a plea agreement from Erickson. The Columbia Police Officer
Defendants and Defendants White and Haws met on multiple occasions to discuss the
case. Erickson was never told about evidence that was discovered by the Defendants that
would tend to show that he was not guilty. For example Detective Short and Investigators
White and Haws interviewed people who were at the same bar as Erickson and Ferguson
the night of the murder. The witnesses consistently told Short, White, and Haws that the
bar closed at 1:30 a.m. This information undermined statements made by Erickson about
the timing of the murder and his statement that after they committed the murder
(approximately 2:15 a.m.), they went back to the bar.
In October 2005, Ferguson was tried by a jury and found guilty of second degree
murder. After several appeals and eight years in prison, the Missouri Court of Appeals
granted Ferguson’s petition for writ of habeas corpus and vacated his conviction, citing a
pattern of nondisclosures which included evidence that a witness at the crime scene could
not identify Ferguson or Erickson after seeing their photographs. After the Missouri
Attorney General’s Office declined to retry Ferguson, Boehm and Crane made statements
to the media about the investigation and prosecution of Ferguson which are alleged to be
false statements of fact.
I.

Discussion
A. Count III: Reckless or Intentional Failure to Investigate, 42 U.S.C. §
1983
4

Count III alleges “Defendants Haws, White, and the [Columbia Police Officer
Defendants] recklessly and/or intentionally failed to conduct an investigation that would
have led to the real murderer of Heitholt and eliminated [Ferguson] and Erickson as
suspects”. [Doc. 35, ¶ 240]. Defendant White contends that this claim against him
should be dismissed because all of the specific allegations in the First Amended
Complaint concerning a failure to investigate only discuss misconduct by Columbia
Police Department personnel. Thus the narrow question before the Court is whether there
is any allegation in Count III that states a viable claim against White for recklessly or
intentionally failing to conduct an investigation that would have eliminated Ferguson as a
suspect. The Court finds that there is and therefore White’s Motion to Dismiss must be
denied.
“Intentionally or recklessly failing to investigate other leads or manufacturing
false evidence may shock the conscience and can violate the Fourteenth Amendment’s
due process clause.” Livers v. Schenck, 700 F.3d 340, 350 (8th Cir. 2012) (citations
omitted). “Negligence and even gross negligence is not enough because the state action
must be ‘truly egregious and extraordinary’ to shock the conscience and so severe as to
amount to ‘brutal and inhumane abuse of official power.’ Id. (internal citations omitted).
The Eighth Circuit has recognized three areas of “reckless investigation”: “(1) coercing a
suspect’s confession; (2) purposely ignoring evidence suggesting innocence; and (3)
systemic pressure to implicate a suspect in the face of evidence to the contrary.” Id.
(internal quotations omitted).

5

While Ferguson alleges several acts of failure to investigate against the
Defendants in Count III, he only factually describes one incident involving White in his
Amended Complaint. During the investigation and prosecution of Ferguson, White was
an investigator with the Boone County Prosecuting Attorney’s Office. [Doc. 35, ¶ 17].
Prior to Ferguson’s trial, and not at the direction of Prosecuting Attorney Kevin Crane,
White interviewed a bartender at the bar Ferguson and Erickson went to on the night of
the murder. The bartender told White everyone was out of the bar by 1:30 a.m., which is
evidence that would impeach Erickson’s testimony that he and Erickson were in the bar
after 2:15 a.m. Thus, Ferguson’s Amended Complaint alleges White purposefully
ignored evidence tending to eliminate Ferguson as a suspect and suppressed the
bartender’s statements from Erickson, defense attorneys, and the prosecution. Id. at ¶
161, 167-69, 241. The Eighth Circuit has held that an allegation that a defendant has
“purposefully ignored evidence that strongly tended to exonerate” the plaintiff could be
sufficient to support a claim for reckless investigation. See Moran v. Clarke, 296 F.3d
638, 648 (8th Cir. 2002). As alleged, Ferguson has fairly put White on notice of this
Constitutional claim for failure to investigate; no more is required at this stage of the
litigation.
White also argues that regardless of whether Ferguson sufficiently pleaded a claim
against him, he is entitled to absolute immunity because he was employed by the Boone
County Prosecuting Attorney’s Office, and during the investigation he was acting within
his prosecutorial function. “A prosecutor enjoys absolute immunity for acts performed in
initiating a prosecution and in presenting the State’s case. Functions intimately associated
6

with the judicial phase of the criminal process as opposed to investigative ‘police work’ .
. . are absolutely shielded from liability.” Reasonover v. St. Louis Cnty, Mo., 447 F.3d
569, 579 (8th Cir. 2006). This immunity extends to a prosecutor’s investigators so long
as their actions are in connection with a criminal prosecution. Keating v. Martin, 638
F.2d 1121, 1122 (8th Cir. 1980). However,
[t]here is a difference between the advocate’s role in evaluating evidence
and interviewing witnesses as he prepares for trial, on the one hand, and the
detective’s role in searching for the clues and corroboration that might give
him probable cause to recommend that a suspect be arrested, on the other
hand. When a prosecutor performs the investigative functions normally
performed by a detective or police officer, it is “neither appropriate nor
justifiable that, for the same act, immunity should protect the one and not
the other.
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
White has not established that on the face of Ferguson’s Amended Complaint,
White’s interview of the bartender was done in furtherance of the prosecutorial function
as opposed to investigative police work. To the contrary, Ferguson specifically alleges
that Crane, Boone County Prosecuting Attorney at the time the investigation was
ongoing, did not ask White to interview the bartender. [Doc. 35, ¶ 172]. While Ferguson
did allege that the interview occurred “prior to [Ferguson]’s trial,” this is insufficient to
suggest that the interview was purely prosecutorial. Instead, further factual information
is necessary to determine if White was engaging in police-type investigative work. See
Gobel v. Maricopa Cnty, 867 F.2d 1201 (9th Cir. 1989) (plaintiffs adequately alleged that
the prosecutors acted in a non-prosecutorial investigatory role, and “[g]iven the limited
factual record at this point in the proceedings, it does not appear beyond doubt that the
7

plaintiffs will be unable to prove that the prosecutors were engaging in police-type
investigative work”), abrogated on other grounds by Merrit v. Cnty of Los Angeles, 875
F.2d 764 (9th Cir. 1989).
White also argues in a footnote that he cannot be liable for failure to investigate
because, as a member of the Boone County Prosecuting Attorney’s Office, he had no
duty to investigate. However, this argument does not negate the fact that White did
conduct an investigation. He cannot engage in misconduct during an investigation and
subsequently seek to excuse the misconduct by claiming he had no duty to investigate in
the first place. This is especially true in light of the facts alleged against him – that he
interviewed a witness who provided potentially exculpatory evidence and did not tell
anyone, including the prosecutor, about the information he learned.
White’s Motion to Dismiss count III is denied.
B. Count IV: Malicious Prosecution, 42 U.S.C. § 1983
Count IV alleges that several Defendants, including White, Boehm and Monticelli
are liable under § 1983 because they “maliciously caused the commencement and/or
continuation of a baseless prosecution against [Ferguson] without probable cause” in
violation of the Fourth, Sixth, and Fourteenth Amendments. [Doc. 35, ¶ 248].
Defendants White, Boehm, and Monticelli seek dismissal of Count IV. [Docs. 49, 57].
“Section 1983 only provides a remedy for violations of rights expressly secured by
federal statutes or the Constitution.” Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th
Cir. 2001). Malicious prosecution claims are recognized under state law but the question
presented here is whether federal law recognizes such claims.
8

The Eighth Circuit has recognized that facts supporting a malicious prosecution
claim could arise under 42 U.S.C. § 1983 but only if they independently infringe on a
specific provision of the Constitution or federal statute. See, Gunderson v. Schlueter, 904
F.2d 407, 409 (8th Cir. 1990). Ferguson has alleged three provisions of the U.S.
Constitution to support his federal law malicious prosecution claim – the Fourth, Sixth
and Fourteenth Amendments. But it is unclear under Eighth Circuit law whether a
federal claim for malicious prosecution exists under any of these Amendments See
Joseph v. Allen, 712 F.3d 1222, 1228 (8th Cir. 2013) and Harrington v. City of Council
Bluffs, IA, 678 F.3d 676, 679 (8th Cir. 2012). However, the Court need not resolve the
thorny issue of whether any provision of the U.S Constitution prohibits a “malicious
prosecution”, because even if such a right exists, it was not clearly established at the time
of Ferguson’s prosecution and therefore Defendants White, Boehm, and Monticelli are
entitled to qualified immunity.
Government officials are entitled to qualified immunity from liability for civil
damages when “their actions could reasonably have been thought consistent with the
rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638
(1987). The proper inquiry as to whether an officer is entitled to qualified immunity is
whether the official’s conduct has “violated a clearly established constitutional or
statutory right of which a reasonable official would have known.” Chambers v.
Pennycook, 641 F.3d 898, 903 (8th Cir. 2011) (citing Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). A right is clearly established when “the contours of the right” are

9

“sufficiently clear that a reasonable official could understand that what he is doing
violates that right.” Chambers, 641 F.3d at 908.
In 2005, at the time Ferguson was prosecuted, a reasonable government official
could not have known that a malicious prosecution violated Ferguson’s Constitutional
rights. See Harrington, 678 F.3d at 680-81. In 1994, the Supreme Court described in
Albright v. Oliver, 510 U.S. 266 (1994), the “embarrassing diversity of judicial
opinion” on the extent to which a claim of malicious prosecution is actionable under §
1983, but declined to resolve the issue. Albright, 510 U.S. at 270, n. 4. In 2012, citing
Albright, the Eighth Circuit concluded that a § 1983 malicious prosecution claim would
“probably” arise under the Fourth Amendment “[i]f malicious prosecution is a
constitutional violation at all,” suggesting that even the Eight Circuit is unsure.
Harrington, 678 F.3d at 679. The Eighth Circuit also acknowledged that its sister circuits
“have taken a variety of approaches on the issue of whether or when malicious
prosecution violates the Fourth Amendment” but the Eighth Circuit declined to enter the
debate. Id. at 680. Further, the Eighth Circuit has been reluctant to find a § 1983
malicious prosecution claim even under the Fourth Amendment on the facts alleged by
Ferguson. Kurtz v. City of Shrewsbury, 245 F.3d 753, 758 (8th Cir. 2001) (“[T]his court
has uniformly held that malicious prosecution by itself is not punishable under § 1983
because it does not allege a constitutional injury.”); Joseph v. Allen, 712 F.2d 1222 (8th
Cir. 2013) (“[A]n allegation of malicious prosecution without more cannot sustain a civil
rights claim under § 1983.”).

10

Because no clearly established federal claim for malicious prosecution existed at
the time of Ferguson’s prosecution, the Motions to Dismiss Count IV are granted.
However, as requested by Ferguson, the dismissal of the malicious prosecution claims
against White, Boehm and Monticelli is without prejudice so that Ferguson may amend
his Amended Complaint to bring a malicious prosecution claim under Missouri state law.
Any such amendment to Count IV must be filed within twenty days of the date of this
Order.
C. Count V: Conspiracy to Deprive Constitutional Rights, 42 U.S.C. §
1983
Count V alleges the Columbia Police Officer Defendants and Defendants Haws
and White conspired to: suppress favorable, material evidence from Ferguson, recklessly
or intentionally fail to conduct an investigation that would have established his
innocence, and cause the commencement or continuation of a baseless prosecution
against him. [Doc. 35, ¶¶ 253-257]. Defendant White has moved to dismiss Count V
against him.
To allege a § 1983 conspiracy claim, a plaintiff must plead and support with
factual allegations “(1) that the defendant conspired with others to deprive him of
constitutional rights; (2) that at least one of the alleged co-conspirators engaged in an
overt act in furtherance of the conspiracy; and (3) that the overt act injured the plaintiff.”
White v. McKinley, 519 F.3d 806, 814 (8th Cir. 2008). The plaintiff must also plead a
deprivation of a constitutional right or privilege. Id.
For a claim of conspiracy under Section 1983, the plaintiff need not show
that each participant knew the exact limits of the illegal plan, but the
11

plaintiff must show evidence sufficient to support the conclusion that the
defendants reached an agreement to deprive the plaintiff of constitutionally
guaranteed rights. The question of the existence of a conspiracy to deprive
the plaintiffs of their constitutional rights should not be taken from the jury
if there is a possibility the jury could infer from the circumstances a
“meeting of the minds” or understanding among the conspirators to achieve
the conspiracy’s aims.
Id. at 816.
Ferguson has made allegations that White conspired to suppress evidence
suggesting Ferguson’s innocence. Ferguson has alleged that White, along with the
Columbia Police Officer Defendants, interviewed multiple witnesses about the time the
bar closed. [Doc. 35, ¶¶ 161-82]. Each of these witnesses provided evidence that could
potentially impeach Erickson’s testimony about Ferguson’s and Erickson’s actions the
night of the murder, and each of the Defendants who interviewed these witnesses did not
disclose the information to Erickson, Ferguson’s counsel, or the prosecutor. Id. Nor did
they further investigate. Ferguson also alleges that White met with the Columbia Police
Officer Defendants and Haws on multiple occasions throughout the investigation to
discuss the case. Id. at ¶ 254. The circumstances alleged are sufficient to create the
inference that White, Haws, and the Columbia Police Officer Defendants had an
understanding among themselves to suppress exculpatory evidence, and therefore,
Ferguson has met his burden of alleging at least “some facts suggesting . . . a meeting of
the minds.” See Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985).
White cites to the Eighth Circuit’s opinion in Manis v. Sterling, 862 F.2d 679 (8th
Cir. 1998), in support of his argument that Ferguson’s allegations are conclusory. In
Manis, the plaintiff alleged that the public defenders assigned to represent him conspired
12

with state court judges to delay the adjudication of the plaintiff’s post-conviction
lawsuits. Id. at 681. The Eighth Circuit dismissed his conspiracy claim and remarked that
none of the allegations in the complaint supported an inference that the defendants had
reached any agreement or meeting of the minds. Id. Contrary to Manis, Ferguson has
alleged specific information, discussed above, to support an inference that White and the
other Defendants reached an agreement or meeting of the minds. White’s Motion to
Dismiss Count V is therefore denied.
D. Count VI: Monell, 42 U.S.C. § 1983
Count VI alleges the City of Columbia and Boone County “adopted policies,
practices, and customs which operated to deprive [Ferguson] of his constitutional rights.”
[Doc. 35, ¶ 267]. The unconstitutional policies, practices or customs alleged include the
suppression, destruction, or fabrication of evidence, use of coercive interrogation
techniques, failure to investigate potential leads, use of unreliable witnesses, failure to
properly train officers and investigators, failure to discipline officers who violate the
Constitution, and deliberate indifference to the violation by officers of an accused’s
constitutional rights. Id. at ¶ 269. Ferguson alleges the City of Columbia and Boone
County had unconstitutional written policies and unconstitutional practices or customs.
He also alleges the City of Columbia – through the conduct of its final policymaker,
Boehm – and Boone County – through the conduct of its final policymaker, Crane –
adopted unconstitutional policies and were “deliberately indifferent to an obvious need to
train the Columbia Police Officer Defendants and Defendants Haws and White.” [Doc.
35, ¶¶ 267, 271]. Ferguson asserts the same allegations against Boehm and Crane.
13

Boehm, Crane, the City of Columbia, and Boone County have moved to dismiss Count
VI. [Docs. 54, 57, 59].
A municipality or local government can be sued directly under § 1983 when that
local government implements an unconstitutional policy or custom. Monell v. Dep’t of
Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). However, “a local
government may not be sued under § 1983 for an injury inflicted solely by its employees
or agents.” Id. at 694. Instead, a plaintiff must plead that his injury is caused by “the
execution of a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy.” Id. Such a
showing requires either proof of the existence of an official municipal policy or
misconduct so pervasive among non-policymaking employees of the municipality as to
constitute a custom or deliberate indifference to a individual’s federal rights. Ware v.
Jackson Cnty, Mo., 150 F.3d 873, 880 (8th Cir. 1998). “Although rare, a public official’s
single incident of unconstitutional activity can [also] establish the requisite policy if the
decision is taken by the highest officials responsible for setting policy in that area of the
government’s business.” Rynders v. Williams, 650 F.3d 1188, 1195 (8th Cir. 2011)
(internal quotations omitted).
1. Randy Boehm and Kevin Crane in their Official Capacities
In Count VI, Ferguson asserts claims against Boehm and Crane in their official
capacities. Both Boehm and Crane argue they should be dismissed from Count VI
because the real party in interest in an official-capacity suit is the governmental entity of
which an officer is an agent. [Doc. 58, at pp. 10-11; Doc. 60, at pp. 3-4]. They also
14

argue that Ferguson’s official-capacity claims against them are redundant with the claims
against the City of Columbia and Boone County. Ferguson does not oppose Boehm’s
and Crane’s argument. [Doc. 74, at p. 13; Doc. 75, at p. 11]. The claims in Count VI
against Boehm and Crane in their official capacities are dismissed with prejudice.
2. City of Columbia
The City of Columbia argues Count VI should be dismissed because Ferguson has
failed to plead the existence of an unconstitutional policy or custom. For purposes of its
Motion to Dismiss, the City of Columbia does not challenge allegations of Monell
liability premised on the conduct of Boehm as a final policymaker.
The Eighth Circuit has made it clear that “policy” and “custom” are not
interchangeable. “Official policy involves a deliberate choice to follow a course of action
made from among various alternatives by an official who is determined by state law to
have the final authority to establish governmental policy.” Ware, 150 F.3d at 880. A
policy includes a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by a local government’s officers. Monell, 436 U.S. at 690. Custom or
usage, on the other hand, is demonstrated by:
(1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s employees;
(2) Deliberate indifference to or tacit authorization of such conduct by the
governmental entity’s policymaking officials after notice to the officials of
that misconduct; and
(3) The plaintiff’s injury by acts pursuant to the governmental entity’s
custom, i.e., proof that the custom was the moving force behind the
constitutional violation.
15

Ware, 150 F.3d at 880. A custom is a practice of officials that is not authorized by
written law, but which is so widespread as to have the force of law. Harris v. City of
Pagedale, 821 F.2d 499, 504 n.7 (8th Cir. 1987).
The City of Columbia first argues that Ferguson has failed to allege sufficient facts
to plead the existence of an unconstitutional policy because his Amended Complaint does
not identify, quote, or in any way reference a specific written unconstitutional policy.
However, while a plaintiff must include “allegations, reference[s], or language by which
one could begin to draw an inference that the conduct complained of resulted from an
unconstitutional policy,” a plaintiff need not specifically plead the existence of an
unconstitutional policy or incorporate the policy’s specific language in his complaint.
Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 591 (8th Cir. 2004).
“When a complaint is filed, a plaintiff may not be privy to the facts necessary to
accurately describe or identify any policies or customs which may have caused the
deprivation of a constitutional right.” Doe ex rel. Doe v. School Dist. of City of Norfolk,
340 F.3d 605, 614 (8th Cir. 2003). Ferguson alleges the existence of multiple policies,
including policies related to the suppression, destruction, or fabrication of evidence, use
of coercive interrogation techniques, use of unreliable witnesses, a policy of inadequate
training for officers and investigators, and a policy of refusing to discipline officers and
investigators who commit constitutional violations. [Doc. 35, ¶ 269]. Ferguson also
alleges that multiple officers or investigators were involved in such acts as fabricating
and suppressing evidence and coercing witnesses. See e.g., [Doc. 35, ¶¶ 83, 101, 114,
155, 162-166]. These allegations suggest that the officers and investigators acted
16

pursuant to a policy given the plausible inference that such coordinated and widespread
conduct could not exist without express or tacit approval by the City. As alleged by
Ferguson, this is not a single incident involving separate and independent acts by
unrelated employees of the Columbia Police Department. Rather, it is alleged to be a
conspiracy of so many officers that a reasonable fact finder could conclude it was done
with the actual or tacit approval of the City. Therefore, the City’s Motion to Dismiss the
Monell claim is denied. However, Ferguson’s Monell claim is limited to the facts relied
on by Ferguson in opposition to the City’s Motion to Dismiss, i.e., evidence of a wide
spread conspiracy by multiple Columbia police officers to do the acts alleged by
Ferguson.
As for his failure to train claim against the City, Ferguson argues that he need not
plead a pre-existing pattern of unconstitutional conduct because the need to train officers
“on their constitutional Brady obligations” is obvious. Ferguson relies on the “single
incident” rule articulated in Connick v. Thompson, 131 S.Ct. 1350 (2011). In Connick,
the Supreme Court held that a failure to train prosecutors in their Brady obligations does
not fall within the narrow range of single-incident liability. Id. at 1361; see also City of
Canton, Ohio v. Harris, 489 U.S. 378 (1989). The Supreme Court reasoned that “unlike
police officers” who are not familiar with constitutional constraints or the legal
information they may require to perform their job, “attorneys . . . are equipped with the
tools to find, interpret, and apply legal principles.” Connick, 131 S.Ct. at 1364.
Courts interpreting Connick and its predecessor Canton have held that the failure
to train non-attorneys on the disclosure requirements of the Constitution can give rise to a
17

Monell claim even without any instance of prior constitutional violations. See Davis v.
Clark Cnty, Wash., 966 F. Supp. 2d 1106, 1137 (W.D. Wash. 2013); Cristini v. City of
Warren, 2012 WL 5508369 at * 12-13 (E.D. Mich. 2012); Haley v. City of Boston, 657
F.3d 39, 52 (1st Cir. 2011); Crews v. Cnty of Nassau, 2014 WL 558696 at * (E.D. N.Y.
2014); Gregory v. City of Louisville, 444 F.3d 725, 752-53 (6th Cir. 2006); but see
LeFever v. Ferguson, 2013 WL 3568053, at *8 (S.D. Ohio 2013). This Court agrees.
Therefore, Ferguson has pleaded sufficient facts to support the “single-incident” rule as it
relates to the City of Columbia’s alleged failure to train its officers to document and
disclose interviews providing exculpatory and impeachment evidence. [Doc. 35, ¶ 271].
The City of Columbia’s Motion to Dismiss Count VI is denied.
3. Boone County
Boone County, like the City of Columbia, argues Ferguson has failed to plead the
existence of an unconstitutional policy or custom. Both Boone County and Ferguson
make arguments almost identical to the arguments addressed above. Therefore, for the
same reasons and subject to the same limitations stated above, the Court denies Boone
County’s Motion to Dismiss. This is so even though Boone County argues that
investigators from the Boone County Prosecuting Attorney’s Office are different from the
Columbia police officers because the investigators are supervised by prosecuting
attorneys who are familiar with Brady obligations, and therefore, a need to train
investigators about disclosing exculpatory evidence is less obvious. However, Ferguson
alleges that White and Haws took action without Crane’s knowledge. Further, whether
the investigators were sufficiently supervised by prosecutors is a question for discovery.
18

Unlike the City of Columbia, Boone County also argues that it is not liable for any
unconstitutional policies that could be attributed to it through the conduct of Crane, the
Boone County Prosecuting Attorney during the Ferguson investigation and prosecution.
Boone County contends that any policies adopted by Crane cannot be attributed to Boone
County because Crane did not have final policymaking authority to establish policy on its
behalf. Rather, Boone County argues, Crane was solely an agent of the State of Missouri.
“Not every action by a municipal official will subject a city to liability under §
1983. Municipal liability attaches only where the decisionmaker possesses final authority
to establish municipal policy with respect to the action ordered.” Harris v. City of
Pagedale, 821 F.2d 499, 506 (8th Cir. 1987). Whether a particular official has final
policymaking authority so as to bind a municipality for purposes of liability under § 1983
is a question of state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988).
“Authority to make municipal policy may be granted directly by a legislative enactment
or may be delegated by an official who possesses such authority.” Id. at 124.
Boone County cites several Missouri statutes prescribing a prosecutor’s duties and
how he is paid, RSMo. § 56.060, his salary, Id. at § 56.265, and his authority to appoint
assistant prosecutors and investigators, Id. at § 56.151. Along with these statutes, Boone
County also cites to Missouri case law to support the conclusion that a county prosecutor
such as Crane is an agent of the State of Missouri. See State v. Harrington, 534 S.W.2d
44, 49 (Mo. 1976); Missouri Prosecuting Attorneys v. Barton Cnty, 311 S.W.3d 737, 748
(Mo. 2010) (Wolff, J., concurring); State v. Goree, 546 S.W.2d 785, 788 (Mo. Ct. App.
1977); Williams v. State, 730 S.W.2d 284, 288 (Mo. Ct. App. 1987). However, these
19

cases are not dispositive. For instance, in Harrington, 534 S.W.2d at 49, the Supreme
Court of Missouri remarked that the prosecuting attorney was an officer of the state, but
said so in the context of discussing the prosecutor’s duty to initiate and carry out trials.
Likewise, in Missouri Prosecuting Attorneys, 311 S.W.3d at 748, Judge Wolff,
concurring, remarked that “in courtrooms throughout the state, prosecutors announce that
they represent the ‘State of Missouri.’” Again, this is in the context of a courtroom and a
prosecutor’s duty to carry out the prosecutorial function. In Goree, 546 S.W.2d at 788,
the Missouri Court of Appeals remarked that the “[t]he prosecutor represents the state . . .
because he is retained by the state for the prosecution of persons accused of crimes.”
(emphasis added). In Williams, 730 S.W.2d at 288, the Missouri Court of Appeals
remarked that “[t]he Callaway county prosecutor is an agent of the state” but did so in
discussing a plea agreement made by the prosecutor on behalf of the state after initiating
a prosecution.
Count VI does not allege that Crane was a final policymaker for Boone County
when he was enforcing state law or policy by prosecuting Ferguson. Rather, Ferguson
alleges that Crane was a final policymaker for Boone County when he established broad
policies related to criminal investigations conducted by his investigators. [Doc. 35, ¶ 266]
(“Defendant Crane, as Prosecuting Attorney for Boone County, had final policymaking
authority for Boone County regarding the customs, rules, policies, and practices that
govern the investigators of the Boone County Prosecuting Attorney’s Office, including
Defendants Haws and White.”). In other words, Ferguson argues that Crane served a
dual function in his role as Boone County Prosecuting Attorney; he pursued his duties as
20

a state agent when prosecuting criminal cases, but served as a final policymaker for
Boone County when conducting duties that were administrative or managerial in nature.
See also Rinehart v. Howell Cnty., 153 S.W.2d 381, 383 (Mo. 1941) (“The duties of a
prosecuting attorney are many and varied. He, among other things in addition to the
prosecution of criminal actions, represents the state and county in all civil cases in his
county, represents generally the county in all matters of law, investigates claims against
the county, draws contracts relating to the business of the county, gives legal opinions in
matters of law in which the county is interested, et cetera.”).
Though the Eighth Circuit has not yet provided guidance in this area of law, other
courts have held that while a prosecutor represents the state in exercising his authority
over prosecutorial decisions, a county can be liable for the actions of a prosecuting
attorney in the performance of that attorney’s administrative or managerial duties. See
Walker v. City of New York, 974 F.2d 293, 301 (2d Cir. 1992); Carter v. City of
Philadelphia, 181 F.3d 339, 352-53 (3d Cir. 1999) (“The recurring theme that emerges . .
. is that county or municipal law enforcement officials may be State officials when they
prosecute crimes or otherwise carry out policies established by the State, but serve as
local policy makers when they manage or administer their own offices.”); Esteves v.
Brock, 106 F.3d 674, 678 (5th Cir. 1997) (holding that a prosecutor’s use of peremptory
challenges during a judicial proceeding was an integral part of his prosecutorial function
and could not be attributed to the county, but remarking that the decision “does not
absolve a county of all responsibility for the actions of a district attorney in the
performance of his or her duties” particularly administrative or managerial duties);
21

Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990); Pusey v. City of Youngstown, 11
F.3d 652, 657-58 (6th Cir. 1993); Owens v. Fulton Cnty, 877 F.2d 947, 952 (11th Cir.
1989; Goldstein v. City of Long Beach, 715 F.3d 750, 765 (9th Cir. 2013) (Reinhardt, J.,
concurring). Cf. Franklin v. Zaruba, 150 F.3d 682 (7th Cir. 1998) (sheriff is acting as
county official, and not acting as agent of state, at time of alleged failure to properly train
subordinates or establish policies to protect arrestees). For example, in Walker, 974 F.2d
293, the plaintiff sued the City of New York alleging it was liable for the district
attorney’s deliberate indifference to the training and supervision of the district attorney’s
assistants. The City of New York argued that the district attorney was a state official and
that his deliberate indifference could not trigger municipal liability. Id. at 301. The
Second Circuit, remarking that the plaintiff was challenging the district attorney’s
management of the office and the decision not to supervise or train his assistants, held
that the plaintiff had sufficiently alleged a § 1983 claim against the municipality. Id. In
contrast to challenges regarding prosecutorial misconduct – which would be attributable
to the state – “when a district attorney acts as the manager of the district attorney’s office,
the district attorney acts as a county policymaker.” Id.
Reading the Amended Complaint in the light most favorable to Ferguson, as the
Court is required to do at this stage of the litigation, the function complained of here is
not Crane’s prosecutorial conduct, but his administrative conduct; it involves policies
related to the training, supervision, and discipline of his investigators, rather than
decisions about whether and how to prosecute cases. Boone County’s Motion to
Dismiss is denied.
22

E. Count VIII: Defamation
Count VIII alleges both Kevin Crane and Randy Boehm made defamatory
statements about Ferguson after his conviction was reversed in November 2013. Both
Crane and Boehm move for dismissal of Count VIII. Under Missouri law, the defamation
analysis is comprised of two components. Pape v. Reither, 918 S.W.2d 376, 380 (Mo.
Ct. App. 1996). “First, there is the question of whether the statement is defamatory at all
. . . . Once a statement is found to be defamatory as defined, the court inquires as to
whether one or more privileges . . . shelters the defaming party from legal action.” Id.
Both Crane and Boehm argue their statements are subject to the privilege afforded
to statements of opinion. Statements of opinion are absolutely privileged even if they are
made maliciously. Id. “The only exception to this rule which is recognized by Missouri
is that the privilege does not apply when the statement of opinion necessarily implies the
existence of undisclosed defamatory facts.” Id.

The test to determine if a statement is

opinion is “whether a reasonable factfinder could conclude that the statement implies an
assertion of objective fact.” Castle Rock Remodeling, LLC v. Better Bus. Bureau of
Greater St. Louis, Inc., 354 S.W.3d 234, 241 (Mo. Ct. Ap. 2011). Examining the totality
of the circumstances is essential to determine whether an ordinary reader would have
treated the statement as an opinion. Henry v. Halliburton, 690 S.W.2d 775, 788 (Mo.
banc. 1985). In considering the totality of the circumstances, factors to consider include
“(1) whether the general tenor of the entire work negates the impression that the
defendant was asserting an objective fact; (2) whether the defendant used figurative or

23

hyperbolic language that negates that impression; and (3) whether the statement in
question is susceptible of being proved true or false.” Castle Rock, 354 S.W.2d at 242.
1. Kevin Crane
In Count VIII, Ferguson alleges that around the same time Ferguson was released
from jail and the Missouri Attorney General’s Office announced that it would not retry
him, Crane made a statement to the Kansas City Star “that [Ferguson] was guilty of the
Heitholt murder.” [Doc. 35, ¶ 210]. Crane stated, “I obviously think he’s good for the
offense, or I wouldn’t have prosecuted him.” [Doc. 35, ¶¶ 210, 279; Doc. 35-1]. Of the
victim’s family, Crane stated, “They know how I feel.” Id.
Crane’s statement does not imply an assertion of objective fact. First, the general
tenor of the entire article 1 where Crane’s statement was published negates the impression
that Crane was stating an objective fact in contrast to his opinion about the case.
Preceding the statements quoted by Ferguson, the article states “Crane, who was the
prosecutor in the original case, stood by his earlier judgment.” Phrases such as “I
obviously think,” “I feel,” and “judgment” suggest to the reader that Crane was
expressing his personal opinion on whether Ferguson committed the murders, not
whether it was an objective, verifiable fact. See Pape, 918 S.W.2d at 380 (“The phrase
‘it is my position’ cannot be contorted to mean anything other than ‘it is my belief’ or ‘I
will attempt to prove’ – glosses that likewise reflect the expression of an opinion.”);
Ruzicka Elec. & Sons, Inc. v. Int’l Broth. of Elec. Workers, Local 1, AFL-CIO, 427 F.3d
1

The article, published by the Kansas City Star, was incorporated into and attached to Ferguson’s
Amended Complaint and can therefore be considered for the purpose of Crane’s Motion to Dismiss. See
Ashanti v. City of Golden Valley, 666 F.3d 1148, 1150-51.

24

511, 523 (8th Cir. 2005) (labor union agents’ statements in the context of a labor dispute
that they “thought the [plaintiff’s] work was shoddy” and “felt” plaintiff’s work on
school project was “dangerous,” “improper,” and “not up to code” were statements of
opinion). There are also statements in the article from Ferguson and his father illustrating
that the article sought to report on all Parties’ opinions of the case. Ferguson, citing
Milkovich v. Lorain J. Co., 497 U.S. 1 (1990), argues that simply couching a statement in
terms of opinion does not dispel the factual implications contained in the statement.
While that may be true, the argument does not persuade the Court that the general tenor
of the article as a whole, including Crane’s statement, was one of fact rather than belief.
The statement is also not susceptible to being proven true or false at the time it
was made, which is a requirement to establish that the statement was fact and not
opinion. Pape, 918 S.W.2d at 381. At the time Crane made the statement, Ferguson was
not declared “innocent” by the Missouri Court of Appeals. Id. (“[A]llegations of . . .
illegal conduct are conclusions about the consequences that should attach to certain
conduct, and as such they too are opinions. The fact that it might be eventually
established in court that the persons accused in these statements indeed engaged in
fraudulent or illegal conduct does not make the statements verifiable. . . . Thus, a
statement must be verifiable at the time it is issued in order to be one of fact.”). Ferguson
argues that whether he murdered Heitholt is a verifiable fact because his conviction was
vacated and because the Missouri Court of Appeals, citing numerous Brady violations by
the investigative team and new evidence, stated that the “conviction is not a verdict
worthy of either judicial or public confidence” [Doc. 74, at p. 6]. However, in vacating
25

Ferguson’s conviction, the Missouri Court of Appeals did not declare his innocence and
left the door open for the State of Missouri to retry Ferguson. See Ferguson v. Dormire,
413 S.W.3d 40, 53, 73 (Mo. Ct. App. 2013). There is also no way to verify the truth of
the statement “They know how I feel.”
Ferguson relies heavily on Harrington v. Wilber, 353 F.Supp.2d 1033 (S.D. Iowa
2005). In Harrington, Harrington was convicted of murder, but his conviction was later
vacated on the grounds that the prosecutor at the time of his trial committed a Brady
violation. In determining whether to retry Harrington, the new prosecutor conducted an
investigation into the case and moved to dismiss the case noting that there was
insufficient admissible evidence to support a conviction. Shortly after the case was
dismissed, the same prosecutor issued a press release which stated,
As you are all undoubtedly aware, I am very limited on the information I
can convey outside of an official court document or proceeding.
…
After personally spending hundreds of hours on this case, I have no doubt
that Terry Harrington committed the murder of John Schweer on July 22,
1977. The jury made the right decision in 1978, and the right man went to
prison for over twenty-five years. That said, I also have no doubt that the
admissible evidence which is left after twenty-six years is not sufficient to
sustain a conviction against Mr. Harrington.
The easy decision on this case would have been to let it drop when the
Supreme Court granted Mr. Harrington a new trial earlier this year. I
certainly had many people recommend that I take that easier path. That
would not have been the right decision, however. I owed it to the family of
John Schweer to do my best on this case to bring his killer to justice a
second time. And while I am disappointed that I will not get the
opportunity to put this case before a jury, I am satisfied that nothing else
could have been done, by my office or by the Council Bluffs Police
Department. As for final justice for Terry Harrington, I will defer that
honor to a higher power.
26

Id. at 1036-37. Harrington claimed the italicized text was libelous and oral statements
similar to it were defamatory. In denying the prosecutor’s motion for summary
judgment, the United States District Court for the Southern District of Iowa concluded
“that a reasonable mind could find that the reference to an insufficiency of ‘admissible
evidence’ indicates that [the prosecutor]’s hundreds of hours of investigation revealed
facts to him supporting his certainty that Plaintiff is a murderer.” Id. at 1042. The court
remarked that the statement implied knowledge of information, unknown to the public
that supports his statements as fact. Id.
This case is distinguishable from Harrington. The statements made by Crane do
not imply knowledge of inadmissible facts or facts otherwise unknown to the public
which establish that Ferguson murdered Heitholt. Crane stated that he believed Ferguson
committed the murders or else he would not have prosecuted him. Considering the
totality of the circumstances and Crane’s specific statements, Feguson’s allegation are
insufficient to state a claim for defamation. Crane’s Motion to Dismiss Count VIII is
granted. 2
2. Randy Boehm
Ferguson alleges that two days after Ferguson was released, Boehm made a
statement to ABC News in Columbia, Missouri, “defending the investigation and also
proclaiming [Ferguson]’s guilt.” [Doc. 35, ¶ 212]. Boehm stated:

2

Because the Court determined that Crane’s statements are subject to the privilege afforded statements of
opinion, the Court will not discuss Crane’s alternative argument that his statements were protected by the
judicial privilege.

27

I had and still have complete confidence in our investigative team that
worked this case. I believe this case was worked professionally and
ethically and I still believe that the people responsible for this crime are the
people we arrested. I also had and have complete confidence in the
professionalism and integrity of Kevin Crane.
[Doc. 35, ¶¶ 212, 281; Doc. 35-2].
Like Crane’s statements, Boehm’s statements were statements of his belief. The
three statements convey Boehm’s belief as to the quality of the investigation and the
performance of the investigative and prosecutorial team and are opinions that cannot
form the basis of a viable defamation claim. See Nigro v. St. Joseph Med. Ctr., 371
S.W.3d 808, 820 (Mo. Ct. App. 2012), reh'g and/or transfer denied (May 29, 2012),
transfer denied (Aug. 14, 2012) (“Nigro claims that no ‘thorough investigation’ occurred,
but his argument is meritless. An investigation . . . unquestionably occurred. Whether
the investigation was ‘thorough’ is a matter of opinion, which cannot form the basis of a
viable defamation claim.”). Boehm used phrases such as “complete confidence,” “I
believe,” and “I still believe” – all statements which convey personal belief rather than
fact. See Ruzicka, 427 F.3d at 523; Pape, 918 S.W.2d at 380. As to the statement “I still
believe the people responsible for this crime are the people we arrested,” it is not
surrounded by statements implying unknown facts. The statement conveys that Boehm,
who was the chief of police at the time Ferguson was arrested, believed that pursuant to
his team’s investigation, Ferguson committed the crime.
Ferguson asserts largely the same arguments and case law against Boehm’s
Motion to Dismiss as he did against Crane’s Motion to Dismiss. For the same reasons
described above, those arguments are unpersuasive. Similar to his argument against
28

Crane’s Motion to Dismiss, Ferguson points out that his conviction was vacated based
largely on Brady violations and other investigatory issues. However, the Missouri Court
of Appeal’s opinion on the sufficiency of the investigation does not transform Boehm’s
opinion into fact. Boehm’s statement implies an assertion of his own belief, not an
objective, verifiable fact. Boehm’s Motion to Dismiss Count VIII is therefore granted.
II.

Conclusion
For the reasons set forth above, Boone County’s and the City of Columbia’s

Motions to Dismiss are denied. White’s Motion to Dismiss as it relates to Counts III and
V is denied. Count IV is dismissed against Boehm, Monticelli and White, without
prejudice. Ferguson may amend Count IV to bring a malicious prosecution claim under
Missouri state law. Any amendment to Count IV must be filed within twenty days of the
date of this Order. The official capacity claims against Boehm and Crane in Count VI are
dismissed with prejudice. Count VIII is dismissed with prejudice.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: August 12, 2014
Jefferson City, Missouri

29