Ferguson v. Short et al

Filing 272

ORDER granting in part and denying in part Defendants' motion for summary judgment, Doc. 201 . Summary judgment is granted on Plaintiff's Count I, procedural due process. Summary judgment is granted in part and denied in part on Plaintiff's Count II, substantive due process fabrication of evidence. Summary judgment is denied on Plaintiff's Counts III, IV, V, and VII. Signed by Judge Nanette Laughrey on 8/14/2015. (Hatting, Elizabeth)

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
Pending before the Court is Defendants’ motion for summary judgment, Doc 201.
For the reasons set forth below, Defendants’ motion is granted in part and denied in part.
Summary judgment is granted for Defendants on Ferguson’s Count I, procedural due
process. Summary judgment is also granted for Defendants on Ferguson’s Count II,
substantive due process – fabrication of evidence, to the extent that Ferguson’s argument
relates to the Richard Walker evidence set out in Part II.B.2.c. Summary judgment is
denied on the remainder of Ferguson’s Count II and the entirety of Counts III, IV, V, and
VII.
I.

Undisputed Facts
This case arose out of the 2001 murder of Kent Heitholt, a sports editor for the

Columbia Daily Tribune (“Tribune”). In 2004, Plaintiff Ryan Ferguson was convicted of
the murder and sentenced to forty years in prison. Seven years later, the Missouri Court
of Appeals vacated his sentence due to a Brady violation. Subsequently, Ferguson filed
1

this lawsuit alleging that Defendant Officers John Short, Jeff Nichols, Jeff Westbrook,
Bryan Liebhart, Latisha Stroer, and Lloyd Simons violated his constitutional rights in
investigating and prosecuting him for the Heitholt murder.
A. Murder of Kent Heitholt
Kent Heitholt was murdered in the parking lot of the Tribune on November 1,
2001. [Doc. 140, p. 5]. At approximately 2:26 that morning, the Columbia Police
Department received a 911 call from Jerry Trump, the manager for the Tribune’s cleaning
crew, which included the following conversation:
Male:
Operator:
Male:
Operator:
Male:

I saw two guys in the area
Were they white or black?
White. I’d say 19, 20.
What were they wearing?
I, I don’t know. This gal, if I can get her to
calm down, she could give a report probably to
the police a little bit.
Operator:
Okay.
Male:
Because she saw them she walked out.
Operator:
Okay.
Male:
To smoke a cigarette saw them duck down
behind the car.
Operator:
Okay.
Male:
I looked out and saw ‘em and I said “what’s
going on” and I knew it was Kent’s car and I
said “Kent” and they didn’t look up nobody did
anything.
[Indiscernible]
Male:
Somebody’s been hurt man.
Operator:
Okay so you saw them duck down behind his
car?
Male:
Yeah. Well somebody’s been hurt.
Operator:
Okay.
Male:
He left here, they said, 15, tw--, er what’d they
say, 30 minutes ago. I mean left the building.
Operator:
Okay. Okay and then where did they go after
that?
2

Male:

***
Male:

Operator:
Male:
Operator:
Male:
Operator:

I don’t know. Up, up towards the new building.
Up towards Fourth Street. I guess it’s Fourth.
Towards the front of the Tribune building.
No. You, ye-- Yeah it would have been east
and I would say south. I would say south east.
But I don’t know that for sure because they took
off. You know, they went up that alley way
towards Fourth.
Okay, okay. Alright. We’ve got officers on the
way over there right now.
Alright we will be out there.
Okay.
Bye.
Do--.

[Ex. E].
Officer Shanona McGeorge was dispatched to the scene and upon arrival observed
Heitholt lying on the ground next to a vehicle in the Tribune parking lot. [Ex. A, at
OFFICERS000009-000016].

Robert Thompson, a sports writer for the Tribune,

informed McGeorge that the computer system at the Tribune cut off at 2:00 a.m. Id.
Thompson last saw Heitholt at approximately 2:10 a.m.

Id.

Sometime later, a

maintenance worker approached Thompson to inform him that someone was outside hurt
and lying in a pool of blood. Id. Thompson went outside and after seeing Heitholt lying
face down on the concrete, turned him over and checked his pulse. Id.
Officer Baxley was also dispatched to the scene, and once there spoke with Trump
and Shawna Ornt, a member of the Tribune’s overnight maintenance staff. [Ex. A, at
OFFICERS000017-000020]. Trump informed Baxley that he and Ornt had been at work
at the Tribune that night. Id. After Ornt went outside to smoke a cigarette, she returned
and said she saw individuals in the parking lot by a car. Id. Trump went to investigate,
3

raised the dock door, and saw an individual by the rear tire of Heitholt’s vehicle. Id.
Trump initially believed the individual was Heitholt. Id. He later observed that the
individual was an approximately six-foot tall, twenty or twenty-one year old, white male
with a stocky build, possibly dark hair and a ball cap. Id. Trump observed a second
individual stand up around the driver’s side door. Id. This person was also a white male,
had blonde hair, was approximately six feet tall, had a thin build, and was nineteen or
twenty years old. Id. One of the individuals by the car said “somebody’s hurt, man,” and
both began walking briskly east through an alleyway towards Fourth Street. Id.
Ornt informed Baxley that at approximately 2:00 a.m., Heitholt spoke with her
briefly before he left the Tribune building. Id. At approximately 2:20 a.m., Ornt left the
north side of the Tribune building and walked into the parking lot. Id. She saw a white
male duck behind the driver’s side door of a car in the parking lot and she became
frightened, so she returned to the Tribune building and relayed what she had seen to
Trump. Id. Trump opened the door and called out to Heitholt. Id. The individual on the
driver’s side of the vehicle stood up and one of the individuals said “somebody’s hurt,
man.” Id. Ornt observed that one of the individuals had short, spiky, blonde hair, a
muscular build which was not bulky, was approximately six feet tall, was twenty to
twenty-one years old, and was wearing a light gray shirt. Id. The second individual was
a white male, possibly with dark hair. Id. The individuals began walking briskly east
toward Fourth Street through the alley located on the north side of the Tribune building.
Id. After relaying these statements both Ornt and Trump were taken to the Columbia
Police Department for further interviews. Id.
4

Upon reaching the Columbia Police Department, Ornt completed a composite with
a detective. Id. at OFFICERS000021-000022. The composite showed a white male with
blonde hair flipped up at the front with a detective. Id. She was “not as satisfied as [she]
wanted to be” with the first composite sketch. [Ex. B, at FERGUSON003343 (Doc. 2081, p. 16)]. Ornt and Trump reiterated to the officers at the Police Department the
descriptions of the night’s events conveyed at the scene.
B. Investigation of Murder
On November 1, 2001, Stephen Monticelli was the Sergeant in charge of the
Major Crimes Unit for the Columbia Police Department. [Ex. HHH, at ¶ 3 (Doc. 214-5,
p. 1)]. Officer Short was the lead detective in the Heitholt murder. [Ex. 1, p. 17 (Doc.
234-1, p. 17)]. To investigate the murder, the Columbia Police Department used a “lead
card system” to generate and assign leads to individual investigators for follow up. [Ex.
HHH, at ¶¶ 4-5 (Doc. 214-5, p. 1)]. Existing leads could generate further leads. Id. The
purpose of this system was to prevent duplication of work, make the investigation more
efficient and provide an organized system during complex investigations. Id.
Defendant Detectives Jeff Westbrook, Lloyd Simons, Bryan Liebhart, John Short,
and Jeff Nichols were all involved in the initial investigation into the murder. After being
contacted at approximately 2:30 a.m. on November 1, Nichols processed the scene for
physical evidence and learned that the victim was Heitholt. [Ex. A, OFFICERS000278000287]. There was a large amount of blood and blood spatter located throughout the
scene, a belt buckle (apparently torn from Heitholt’s belt) was lying near Heitholt’s head,
and Heitholt’s neck displayed red marks that were consistent with ligature marks. Id.
5

Nichols noted that Heitholt’s pants were very bloody and the saturation on the right leg
suggested that Heitholt may have knelt down at one point. Id. There were also several
basketball schedules, a lens from a pair of glasses, and a cell phone scattered around
Heitholt’s car and a pile of cat food on top of a wall near the parking lot. Id. at
OFFICERS000280. Nichols recovered fingernail scrapings and strands of hair from
Heitholt’s hands during the autopsy of the body. Id. at OFFICERS000278-000287.
On November 1, Detective Short spoke with Michael Boyd, a sports writer who
worked for Heitholt, over the phone and learned that Boyd had left the Tribune building
shortly after 2:00 a.m. that morning. [Ex. A, OFFICERS000072-000074]. Boyd saw
Heitholt leaving the Tribune building and talked with him at his car. Id. They discussed
a stray cat that had been clawing at Heitholt’s tire, and Boyd went to his vehicle and
drove off around 2:20 a.m. Id. Later that day, Detective Simons spoke with Boyd at the
Tribune and learned that Boyd walked to his car at approximately 2:10 a.m. and saw a
black and gray cat in the parking lot. Id. at OFFICERS000095-000097. Boyd sat in his
car in the parking lot for a couple of minutes adjusting his radio, and saw Heitholt come
out of the Tribune building. Id. Boyd drove his vehicle up to Heitholt and talked with
him for a few minutes about Boyd’s car, the cat, and needing help operating a laptop for
work. Id. Boyd said that he left the parking lot between 2:15 and 2:20 a.m.
On November 2, Detective Simons conducted a follow up interview with Ornt.
[Ex. A, OFFICERS000133-000136]. Ornt reported that the individual near the back
bumper of the car was a white male, twenty to twenty-two years old, tall, muscular, and
had blonde hair that was short on the sides, laid down flat on top and flipped up near the
6

forehead. Id. She stated that the individual was wearing a tighter style shirt which
somewhat showed his muscular build. Id. The individual was lighter skinned and gave
Ornt the impression that he lifted weights and had been out partying. Id. The second
individual was approximately the same age, shorter, and had a fatter build than the first
individual. Id. Ornt noted that the hair in the composite was not exactly correct. Id. at
OFFICERS000136. A follow up interview was also conducted with Trump, who stated
that the individual near the rear fender of the vehicle was a white male, possibly twenty,
had dark hair, and was wearing a cap. Id. at OFFICERS000137-000141. Trump stated
that the second individual was a white male in his early twenties with a thinner face than
the first individual. Id. Trump was unable to assist in the preparation of the composite
sketches. Id. He was not certain if he could identify the individuals again. Id.
The Columbia Police Department was unable to locate the two individuals
suspected of murdering Heitholt. The Missouri State Highway Patrol Crime Lab (“Lab”)
tested Heitholt’s fingernail scrapings for DNA, but was unable to identify any readable
profiles other than Heitholt’s. [Ex. CCC, at ¶ 6 (Doc. 211-6, p. 2)]. If Heitholt had
scratched his attackers, a mixed profile would likely have resulted from the profiling. Id.
The Lab also performed multiple DNA tests on blood obtained from Heitholt’s sweater,
pants, belt, and shoes, none of which matched anyone other than Heitholt. Id. at ¶ 9.
Numerous “no value” or “non-usable” fingerprints were obtained on items tested at the
Lab. [Ex. EEE, at ¶ 6 (Doc. 212-4, p. 1)]. However, there were numerous latex prints
from unknown individuals inside of Heitholt’s car which did not match Ferguson,
Erickson, Heitholt, or any known individual. [Ex. B, at FERGUSON003784 (Doc. 2097

1, p. 22)]. All usable prints were located on parts of the car unassociated with the attack
on Heitholt. Id. at FERGUSON003770-003772.
In February 2003, after receiving training at FBI headquarters in Quantico,
Virginia, Detective Nichols contacted Ornt to re-interview her and create a revised
composite sketch of one of the suspects. [Ex. A, at OFFICERS000769-000772; Ex. EE,
at p. 13, 212 (Doc. 212-3, p. 13, 212)]. Ornt described the individual near the rear tire as
having a rectangular head that was longer than average, a square chin that was wider than
average, eyes that were closer together than average, a nose that was narrow at the base,
small lips that were wider than average, ears that protruded outward at the top but with
ear lobes that were close set to his head, and blonde hair that was combed forward and
flipped up in the front. [Ex. A, at OFFICERS000769-000772; Ex. EE, at p. 13, 212 (Doc.
212-3, p. 13, 212)].
From November 1, 2001, through March 10, 2004, numerous newspaper articles
were published concerning the Heitholt murder. [Ex. VV, at FERGUSON00883-00917
(Doc. 221-1, p. 1-35)]. None of the articles contained information about Ornt and Trump
hearing one of the suspects speak or what was said, though one article did note that the
janitors addressed the two individuals at the scene. Id. An informational video was
released prior to March 10, 2004, which included the 911 call in which Trump said that
one of the males at the scene stated “somebody is hurt here, man.” [Ex. 4; Ex. 1, at p. 18
(Doc. 234-1, p. 18)].
C. Officers’ Investigation Beginning March 10, 2004

8

On March 10, 2004, Officer Baxley was dispatched to speak with an individual
who stated he had information related to the murder of Kent Heitholt.

[Ex. A, at

OFFICERS000821-000826]. Jonathan Alder told Baxley that he had learned that Charles
Erickson and Ryan Ferguson were responsible for the Heitholt murder. Id. Alder stated
that Erickson and Ferguson had been at By George the night of the murder and that
Ferguson had been trying to obtain more money. Id. According to Alder, when Ferguson
saw Heitholt and decided to rob him, an altercation occurred and Ferguson killed Heitholt
by strangling him. Id. Alder said that he learned this information from Nickolas Gilpin,
who had purportedly heard it from Erickson. Id. Alder was afraid of Ferguson as
Ferguson had been taking steroids and was “unpredictable.”

Id.

Alder stated that

Ferguson had threatened to kill Erickson and other individuals. Id. at OFFICERS000825.
Ferguson denies the truthfulness of Alder’s statements and disputes Alder’s credibility.
[Doc. 234, p. 32-37].
Officer Baxley transported Alder, Gilpin, Laura Myers, Aaron Dover, and Chad
Hilgeford to the Columbia Police Department for further interviews. Id. According to
Short’s report of his interview with Gilpin, Gilpin stated that Erickson told him that
Ferguson had strangled Heitholt to death. Id. at OFFICERS000870-000873. Gilpin
explained that Erickson said that he and Ferguson were at the By George nightclub on
Halloween 2001 when they ran out of money. Id. Erickson then told him that the pair
left By George because Ferguson wanted to rob someone to get more money. Id. Gilpin
said that Erickson told him that he watched Ferguson strangle Heitholt in the parking lot
of the Tribune. [Ex. A, OFFICERS000870-000873; Ex. Y, at p. 132-135 (Doc. 221-6, p.
9

132-35); Ex. X, at p. 18-19, 27 (Doc. 221-4, p. 18-19, 27)]. According to Short’s report,
Erickson also told Gilpin that he saw a cleaning lady at the back of the Tribune and
yelled at her that someone needed help. [Ex. A, OFFICERS000870-000873; Ex. Y, at p.
132-135 (Doc. 221-6, p. 132-35); Ex. X, at p. 18-19, 27 (Doc. 221-4, p. 18-19, 27)].
Gilpin did not mention this statement during his deposition prior to Ferguson’s criminal
trial. [Ex. X]. Dover, Hilgeford, and Myers repeated substantially similar stories to the
police. Ferguson disputes the credibility of the detectives and the witnesses, but does not
disagree that the reports of the interviews contain the foregoing statements. Following
these interviews, Erickson was brought to the Columbia Police Department to be
interviewed. [Ex. A, at OFFICERS000892-000899].
1. Charles Erickson Interviews
At 9:00 a.m. on March 10, 2004, Officer Bryan Piester picked up Charles Erickson
from the Moberly Area Community College in Columbia, Missouri, and transported him
to the Columbia Police Department. [Ex. A, at OFFICERS000859-000861; Ex. SS, at p.
32]. Short interviewed Erickson twice on March 10; the first interview was not recorded,
but the second was. [Ex. DDD, at ¶ 6 (Doc. 212-2, p. 1)]. The initial interview began at
approximately 9:22 a.m. and lasted for approximately thirty to forty-five minutes. Id. at ¶
7. The second interview lasted from approximately 10:05 a.m. to 10:57 a.m. Id. at ¶ 9.
Short’s report of the initial Erickson interview stated that Short learned the
following information from Erickson. [Ex. A, at OFFICERS000892-000899; Ex. Y, at p.
145-74 (Doc. 221-6, p. 145-74); Ex. DDD, at ¶ 8 (Doc. 212-2, p. 2)]. On October 31,
2001, Ferguson and Erickson were at the By George nightclub.
10

Id.

The two had

continually borrowed money from Ferguson’s sister, but at some point she refused to
provide them with more money. Id. Erickson and Ferguson left By George to “rouse
someone up for some money.” Id. Ferguson retrieved a tire tool from the trunk of his
car, and as he and Erickson were walking up to the parking lot of the Tribune, Ferguson
asked Erickson to hit Heitholt with something. Id. Erickson hit Heitholt in the head with
the tire tool and Heitholt screamed. Id. Erickson noted that he may have vomited at the
scene. Id. Ferguson went to make sure that Heitholt was dead, and Erickson saw
Ferguson strangle Heitholt. Id. Erickson saw a cleaning lady at the back door of the
Tribune and told her to get help. Id. The cleaning lady ran back into the building. Id.
Erickson saw Ferguson take something from Heitholt’s car.

Id.

As Erickson and

Ferguson were leaving the Tribune, Erickson ran into Dallas Mallory and told him that
they had “beat down a guy.” Id. According to the report, when Erickson brought up the
incident later, Ferguson told Erickson that he wanted to kill someone before he turned 60
anyway. Id. The report also noted that when Erickson tried to talk to Ferguson about the
murder at a New Year’s Eve party a couple of years later, Ferguson told Erickson that if
he ever told anyone about the murder, Ferguson would kill him. Id. At various points
throughout the report, Short noted that he did not think Erickson was being totally
forthcoming and that Erickson did not remember certain facts including whether he or
Ferguson hit Heitholt, and whether he vomited at the scene. Id.
During the second interview, which was recorded, Erickson stated that he hit
Heitholt in the head with a tire tool and that Heitholt did not go down immediately, but
staggered. [Ex. II (Doc. 215-1); Ex. NNN (Doc. 216-1)]. Either Erickson or Ferguson
11

threw Heitholt down and Ferguson choked Heitholt to make sure he was dead. Id.
Erickson described the tire tool as being round, dark steel blue. Id. During the interview,
Erickson indicated that he was unsure what was used to strangle Heitholt and Short
mentioned the belt. [Ex. DDD (Doc. 212-2)]. Short also asked Erickson about the
location of Heitholt’s keys. Id.
At approximately 3:30 p.m. on March 10, Detectives Nichols, Stroer, and Giger
drove Erickson around downtown Columbia in an unmarked police car to attempt to help
Erickson remember the route he and Ferguson took away from the Tribune the night of
the murder.

[Ex. A, at OFFICERS001060-001065].

The drive around lasted until

approximately 3:57 p.m. [Ex. GGG, at ¶ 6 (Doc. 214-3, p. 1)]. During the drive around,
Erickson relayed that the By George nightclub was packed the night of the murder. [Ex.
A, at OFFICERS001060-001065]. Erickson told Mallory that it was Ferguson’s idea to
rob someone, but it was Erickson who “pinned him.” Id. Erickson remembered saying
something to the cleaning woman, but the route he and Ferguson took after the murder
was foggy to him.

Id.

Throughout the drive around, Erickson continued to make

statements about how he was not sure what had happened and did not recall a lot of that
evening. [Ex. YY (Doc. 221-7)].
Later on March 10, Sergeant Monticelli asked Detective Nichols to conduct
another interview with Erickson. [Ex. EE, at p. 273 (Doc. 212-3, p. 273)]. Nichols
interviewed Erickson from approximately 5:01 until 5:23 p.m.

[Ex. AA, at

OFFICERS002554]. During this interview, Erickson drew a picture of the tire tool he

12

said was used to murder Heitholt. Id. Nichols told Erickson during the interview that it
is “you that is on this chopping block.” [Ex. EE, at p. 293-94 (Doc. 212-3, p. 293-94)].
Ferguson does not dispute that the reports of Erickson’s interviews contain the
facts conveyed above. He disputes the credibility of the Defendants. Ferguson also
argues that Erickson’s statements were speculative, as he repeatedly commented that he
could not remember exactly what had happened, and that Defendants should have known
that Erickson was not involved in the crime as many of his statements contradicted
evidence found at the scene.
2. Ryan Ferguson Interviews
At approximately 11:00 a.m. on March 10, Detective Liebhart contacted the
Kansas City Missouri Police Department and requested that they attempt to locate
Ferguson. [Ex. A, at OFFICERS000725-000731]. Ferguson was located and taken to the
Kansas City Missouri Police Department. Id. Short and Liebhart traveled to the Kansas
City Missouri Police Department to interview Ferguson. Id. During the interview with
Ferguson, the officers learned that Ferguson knew Heitholt had been murdered on
Halloween night 2001, and that three or four weeks before being picked up, Ferguson had
discussed the murder with Erickson; Erickson told Ferguson while at a party that he was
having dreams about killing Heitholt. Id. Ferguson told the officers that on Halloween
2001, he stayed at By George nightclub the entire night. Id. He stated that after the bar
closed, he and Erickson stayed in the lot for ten to fifteen minutes and talked with his
sister, Kelly Ferguson. Id. Ferguson said that he had $30 left after the bar closed and did
not borrow any money from his sister that night. Id. He stated that after he and Erickson
13

left By George that night, he drove Erickson home. Id. Ferguson consistently denied any
involvement in the murder. Id.
Ferguson was transported to the Columbia Police Department. Id. During the
ride, Ferguson said that he had money the night of the murder and had not committed any
crime. [Ex. G, at OFFICERS002552].

When they arrived at the Columbia Police

Department, Ferguson was again interviewed. [Ex. H, at OFICERS002539-002540].
Ferguson said that on New Year’s Eve of that year, Erickson told Ferguson that he
believed Ferguson had killed Heitholt. Id. Ferguson claimed that he “did not think
twice” about the conversation he had with Erickson and “was having a good time.” Id.
On April 30, 2004, a grand jury indicted Ferguson with murder in the first degree
and robbery in the first degree. [Ex. N, at OFFICERS002635-002637 (Doc. 215-11, p. 13)].
3. Dallas Mallory Interviews
During one of the initial interviews with Erickson, Erickson mentioned seeing
Dallas Mallory after murdering Heitholt. Around 10:00 a.m. on March 10, Detective
Harmon found Mallory and requested that Mallory accompany him to the Columbia
Police Department.

[Ex. A, at OFFICERS000914-000917].

Mallory agreed to be

interviewed and told Harmon that he did not know Erickson’s name but recognized his
face. Id. He denied seeing Erickson on Halloween night 2001. Id. Mallory consented to
take a truth verification exam. Id. The examination revealed that Mallory was being
deceptive. Id. Two different copies of Columbia Police Department Report 243 exist,
which contain different information about what Mallory relayed to the officers during this
14

initial interview. One of the copies of the report, which Ferguson argues was fabricated,
notes that “MALLORY said ERICKSON told him he had ‘beat someone down.’” [Ex.
WW (Doc. 221-3)]. The other copy of the report only includes paragraphs stating that
Mallory could not remember if he had seen Erickson and Ferguson on the night of the
murder. [Ex. XX (Doc. 221-5)]. After the interview that resulted in the conflicting
reports, officers conducted two follow up interviews with Mallory. Mallory has since
provided additional information about purported coercion utilized by the officers while
interviewing him.
4. Meghan Arthur Interviews
On March 11, Officer Stroer interviewed Meghan Arthur about what she knew
about the Heitholt murder. Stroer’s report stated that Arthur spoke about a disturbing
conversation she had with Ferguson on October 31, 2003. [Ex. A, at OFFICERS000882000887]. According to the report, Ferguson was drunk and high on narcotics and told her
that Erickson was trying to get Ferguson to turn himself in for the Heitholt murder. Id.
Ferguson said that he and Erickson had done something stupid, but Ferguson did not
want to turn himself in. Id. The report stated that Ferguson said to Arthur that he did not
know what happened because he and Erickson had left the scene and did not know how it
had ended. Id.
Ferguson contends that this report is inaccurate. In a 2015 deposition, Arthur
stated that this report contained “a lot of speculation and things that I just didn’t say.”
[Ex. Q, at p. 26 (Doc. 218-6, p. 7)]. She denied saying that she had a “disturbing”
conversation with Ferguson, that Ferguson was really drunk, that she believed Ferguson
15

was high on drugs or uppity and jittery, that Ferguson was upset, and that Ferguson told
her that Erickson was trying to get him to turn himself in. [Ex. Q, at 36-38 (Doc. 218-6,
p. 9-10); Ex. A, at OFFICERS000882-887].
5. Richard Walker Interviews
Richard Walker was an inmate in the same cell block as Ferguson from February
6, 2004, until sometime after April 7, 2004. [Ex. A, at OFFICERS001133-001140]. He
was also incarcerated in the same cell block as Erickson for some period of time.
On April 8, 2004, Stroer interviewed Walker after Walker indicated that he had
information regarding Ferguson’s involvement in the Heitholt murder. Id. In Stroer’s
report, she recorded that Walker relayed the following facts. After Ferguson made
contact with Walker on Ferguson’s first day at the Boone County Jail, Ferguson told
Walker that on the night of the Heitholt murder he and Erickson had left a bar up the
street from the Tribune around 1:15 or 1:30 a.m. Id. After driving away, they decided
that they were going to rob someone for money. Id. They hit Heitholt with a tire tool.
Id. Afterwards, Ferguson took Erickson home. Id. According to the report, Ferguson
told Walker that he had told Erickson that Heitholt was not hurt that bad and Ferguson
did not think that they had killed him, but Ferguson and Erickson stopped being friends
because Erickson continued to ask too many questions about that evening. Id. According
to the report, Ferguson told Walker that he had been given a stress test and that he had
beat the test and was going to beat the murder charge because his girlfriend was going to
testify that she was on the phone with him and he was calling from his house at the time
of the murder. Id. Following the April 8 interview, on April 9, 2004, Stroer returned to
16

the jail to obtain a recorded statement of Walker. Defendants state that Walker made
substantially the same statement on the 9th that he made on the 8th. Ferguson contends
that this report is fabricated. In addition to this fabrication argument, Ferguson denies
that Walker was credible in making these statements to the officers, and states that the
officers were aware that Walker was not credible.
A second interview of Walker was conducted by Liebhart on September 23, 2004,
in which Walker expressed that Ferguson had told him that if Walker would help
Ferguson bring discredit to the prosecution regarding Ferguson’s case, the Ferguson
family would provide an attorney for Walker’s daughter, who had charges pending
against her. [Ex. A, at OFFICERS001181-001184]. According to Walker, the plan had
been that Walker would make statements to the police regarding Ferguson’s involvement
in the murder and later recant. Id. However, after Ferguson refused to follow through on
his end of the bargain, Walker decided to back out of their plan. Id. According to the
report, Walker then described the crime as he claimed Ferguson had explained it to him.
Id. Ferguson again denies that Walker was credible in making these statements, and
states that Liebhart knew that Walker was not credible, as Liebhart admitted in a 2015
deposition that “[Walker’s] history would make one believe he’s not credible. And then
his final interview to me at the Fulton Reception and Diagnostic Center removed all
doubt that he had any court credibility.” [Ex. DD, at p. 154 (Doc. 212-1, p. 154)].
D. Erickson Proffer and Guilty Plea
On October 1, 2004, Short and Liebhart received a proffer statement from Charles
Erickson. [Ex. A, at OFFICERS001184-001196]. Erickson was asked to review the
17

events that occurred the night of the Heitholt murder and testified that after leaving By
George that night, he and Ferguson were out of money and Ferguson said that they were
going to have to “rob someone.” Id. Ferguson removed a tire tool from his car to assist
them with the robbery, and began walking downtown in an eastern direction from First
Street and Ash. Id. After crossing Providence Road, the pair saw a man in the parking
lot of the Tribune, so they hid behind dumpsters as they watched the man him. Id.
Erickson ran toward the man and hit him with a tire tool. Id. He did not know if he hit
the man more than once. Id. When the man went to the ground, Erickson stopped hitting
him and went and sat on the wall directly across from where the man was. Id. When he
looked up, he saw the man face down on the concrete with Ferguson on top of him. Id.
Ferguson was strangling the man with a belt. Id. Some people came out the back door of
the Tribune and said something, but Erickson could not remember what was said. Id.
Erickson told the people to go get help because someone was hurt. Id. Erickson stated
that either he or Ferguson touched the man’s cell phone as it was on the concrete in the
drive and took the victim’s keys. Id. Erickson took the belt and the man’s wrist watch
from the scene. Id. They also took the man’s keys and the tire tool and ran from the
scene in the opposite direction from which they had come. Id. After running away, they
ran into Mallory and described the crime to him. Id. When they reached Ferguson’s car,
Ferguson placed the things they had taken from the man in a plastic bag and the two
returned to By George. Id. After making his initial statement, Erickson answered a
variety of questions posed to him by the officers. Id.

18

On November 4, 2004, Erickson and Judge Kevin Crane1 signed an agreement
with Erickson stating that he would testify truthfully at Ferguson’s trial in exchange for
the state recommending sentences of 15 years for Count I (Murder in the Second
Degree), 15 years for Count II (Robbery in the First Degree), to be served concurrently
with Count I, and 10 years for Count III (Armed Criminal Action), to be served
consecutively with Counts I and II. [Ex. FF (Doc. 212-5)]. That same day, Erickson
pleaded guilty to all three counts. [Ex. M, at OFFICERS002516-002538 (Doc. 215-8, p.
1-23)]. Erickson testified that no one had threatened or coerced him in any manner in
order to get him to plead guilty against his will. Id. at OFFICERS002525.
E. Investigation by Ferguson Defense Team
After Ferguson retained defense counsel, his attorneys sought out many of the
witnesses originally interviewed by the Defendant Officers. Many of the witnesses
described problems with the investigation originally undertaken by the Columbia Police
Department.
1. Interview of Meghan Arthur
On October 13, 2004, Arthur was interviewed by Jim Miller, an investigator for
Ferguson’s attorney, and Arthur relayed to him that in October 2003, she had been at a
party with Ferguson and overheard Ferguson talking about something that Erickson had
told Ferguson. [Ex. O, at CITY0003362]. She said that Ferguson was “distressed about

1

Judge Crane was the Boone County prosecutor throughout 2004 and 2005 when the
cases against Erickson and Ferguson were prosecuted. He currently serves as a Boone
County Circuit Court judge.
19

whatever they were talking about like the confusion or whatever it was that they were
talking about.” [Ex. GG, at p. 5 (Doc. 214-2, p. 5)].
Arthur next pointed out to Miller the inaccuracies she saw in Report 252, the
report generated about her initial interview by Stroer, which included her changing a note
that Ferguson was “really drunk” to simply read “drunk”; noting that contrary to the
report, she did not believe Ferguson had taken cocaine the night she overheard the
conversation at the party; she did not believe Ferguson had been “uppity and jittery” the
night of the conversation; she believed Stroer took what Arthur said about how Ferguson
sometimes acted, and transferred it into the report; and Arthur speculated that Ferguson
and Erickson may have been talking about drugs the night she overheard the
conversation. [Ex. O, at CITY0003362]. She finally noted that she felt that the report
was “dramatized,” and that she was not really sure about exactly what happened that
night, while the report made it seem like she was sure. Id.
2. Interview of Dallas Mallory
Miller interviewed Mallory on December 1, 2004, and Mallory provided him a
typed affidavit stating that he had been coerced into providing his original statement.
[Ex. S (Doc. 220-3)]. According to the affidavit, Mallory told the police officers on
March 10, 2004 that he had not seen Erickson or Ferguson in downtown Columbia on the
night of the Heitholt murder. Id. Police officers began yelling at Mallory, called him a
liar, and threatened to charge him with murder. Id. Mallory became very scared and
emotional as the officers continued yelling. Id. Mallory stated that he never told the
police that Erickson was being “fidgety and pushing” or saying “something about a fight”
20

or “we beat someone down.” Id. Mallory’s affidavit stated that he did not remember
seeing Erickson or Ferguson in downtown Columbia on October 31 or November 1,
2001, or remember Erickson telling Mallory the information contained in the police
report regarding his initial interview. Id.
In July 2008, testimony was taken in connection with Ferguson’s motion for postconviction relief. [Ex. NN, at FERGUSON004957-005755 (Docs. 216-1, 216-2, 217-1,
217-2, 218-1)]. Mallory testified that he told the police officers “what they wanted to
hear” in March 2004.
3. Interview of Richard Walker
When Miller interviewed Walker in January 2005, Walker told Miller that he did
not have any memory of talking to Ferguson about the murder.

[Ex. TT, at

FERGUSON008629 (Doc. 220-5, p. 1); Ex. LL]. He said that he remembered the police
interviewing him and telling him to “say what I remembered the best that I remembered.”
Id. However, Walker told Miller that he “basically can’t remember nothing anymore.”
Id. Walker said that he believed that Ferguson was innocent. Id. Walker stated that
there was a possibility that he got the information conveyed during the prior interviews
from newspaper or television. Id. at 2. Walker told Miller during the 2004 interviews,
the police were trying to “use my words in a different way than I said them or they told
me what to say.” Id. at 10. Richard Walker died on November 19, 2005, at the Jefferson
City Correctional Center. [Ex. MM (Doc. 215-9)].
4. Interview of Michael Boyd

21

Miller interviewed Boyd on February 18, 2005. [Ex. OO (Doc. 218-3)]. Miller’s
notes from the interview contain no mention that Boyd saw two young, white guys
standing near the dumpsters of the Tribune building. Id. However, a report from July 25,
2005, when Boyd was interviewed for the State by Haws, noted that Boyd told Haws that
as he was driving away from the Tribune and passed the wall where the dumpsters were
located, he saw two young white guys. [Ex. PP, at FERGUSON00678 (Doc. 218-5, p.
1)]. Boyd has given inconsistent statements about the color of the car he was driving on
the night of the murder. [Ex. OO, at FERGUSON00681 (Doc. 218-3, p. 1); Ex. PP, at
FERGUSON00679 (Doc. 218-5, p. 2)].
F. Criminal Trial of Ferguson
Ferguson’s criminal trial began on October 14, 2005.

[Ex. B, at

FERGUSON002305-004756 (Docs. 205-2, 206-1, 206-2, 207-1, 207-1, 208-1, 208-2,
209-1, 209-2, 210-1, 210-2, 211-1)]. At trial, Erickson testified consistent with his
proffer and guilty plea that he and Ferguson murdered Kent Heitholt. Id. Erickson also
testified about how he had started to remember his involvement with the murder in 2004.
Id. He explained that when a local newspaper ran a story regarding the murder on the
second anniversary of the incident, he started to think about that night and slowly
remember bits and pieces about what had occurred. Id. Following this article, he began
to talk with his friends about his regrets and approached Ferguson about their
involvement in the murder. Id.
Erickson acknowledged during his testimony that there were some things about
the murder he did not remember at the time he was interviewed by the Columbia Police
22

Department that he did remember after the interviews were over. Id. He also stated that
while he was in jail, he received “discovery” from his attorney which included police
reports. Id. According to Erickson during Ferguson’s trial, he “didn’t dream anything,”
and was certain that he and Ferguson were responsible for the murder. Id.
Meghan Arthur, Dallas Mallory, and Richard Walker were not called at
Ferguson’s trial. Id. On October 21, 2005, the jury found Ferguson guilty of murder in
the second degree and robbery in the first degree and sentenced him to thirty years
imprisonment for the murder charge and ten years imprisonment for the robbery charge.
Id.
G. Post-Conviction Relief
On February 14, 2011, Ferguson initiated a state habeas corpus proceeding by
filing a Rule 91 petition.

[Ex. R (Docs. 219-1, 219-2, 220-1, 220-2)].

Arthur’s

deposition was taken in conjunction with that suit, and after reviewing the report of
Stroer’s interview with her she testified that “I have to say if it’s in this report, that it’s
accurate. My memory now is just not that clear.” [Ex. P, at FERGUSON006773 (Doc.
218-4, p. 36)]. She stated that she believed she would have told Stroer the words
contained in the report, and that she told Stroer that Ferguson told her that Erickson was
trying to get them to turn themselves in. Id. at FERGUSON006738-006825. She also
noted that during the interview, Stroer was not putting words in her mouth and did not
ask leading questions. Id.
In addition to Arthur, Erickson, Boyd, and Bennett were also called to testify at
the habeas proceeding. Erickson stated that he had no memory of October 31, 2001 after
23

being at the By George bar and that his trial testimony was a lie.

[Ex. QQ, at

FERGUSON007167-007169 (Doc. 218-7, p. 309-11)]. Boyd testified that he was driving
a red car the night of the murder and that as he was leaving the parking lot of the Tribune
building, he saw two people walking in an alley. Id. at FERGUSON007361-007401.
Bennett testified that she saw Ferguson and Erickson get in a car and drive off from By
George around 1:30 a.m. Id. at FERGUSON007318-007361.
On January 30, 2013, Ferguson filed a writ of habeas corpus in the Missouri Court
of Appeals, Western District. [Ex. R (Docs. 218-1, 218-2, 219-1, 219-2)]. Ferguson
argued that habeas corpus was necessitated by 1) the recantations of Trump and Erickson;
2) the prosecution’s decision to use testimony it knew or should have known was false; 3)
the prosecution withholding exculpatory and impeachment evidence; and 4) the Lincoln
County opt out procedure which allowed otherwise qualified jurors to pay a fee and
perform community service in lieu of jury duty. Id. On November 5, 2013, the Court of
Appeals granted Ferguson’s request for habeas corpus, concluding that “Ferguson has
established the gateway of cause and prejudice, permitting review of his procedurally
defaulted claim that the State violated Brady v. Maryland, 373 U.S. 83 (1963) by
withholding material, favorable evidence of an interview with Barbara Trump, the wife of
Jerry Trump, one of the State’s key witnesses at trial.” [Ex. V, at p. 2 (Doc. 220-8, p. 2)].
Beyond this Brady violation, the court did not address the merits of Ferguson’s claims.
Id. at 18.
H. Subsequent Testimony Related to this Action
1. Dallas Mallory Testimony
24

Mallory’s deposition was taken again on March 30, 2015. He testified that he did
not see Erickson or Ferguson on November 1, 2001 near the scene of the murder. [Ex. T,
at p. 41 (Doc. 220-4, p. 41)]. He testified that on the night of the murder he may have
consumed marijuana and consumed one fifth of Captain Morgan and beer. Id. at 105,
159. He stated that his memory was enhanced when he drank. Id. at 19-20. He testified
that the Columbia Police Report documenting his March 2004 interview was fabricated,
as was his January 4, 2005 interview with Judge Crane and White. Id. at 91, 136.
2. Meghan Arthur Testimony
Arthur’s deposition was taken on April 16, 2015. [Ex. Q (Doc. 218-6)]. She
testified that there were various inaccuracies in Report 252, but noted that her memory
was not definitive enough to say what she had actually witnessed and overheard on the
night of October 31, 2003, and that she would refer to her previous statements. Id. at 41.
She stated that she did not tell Stroer that Ferguson told her that he and Erickson had
done something stupid. Id. at 43. She also stated that she did not tell Stroer that
Ferguson told her that Erickson was trying to pull him into the murder and that he did not
want to turn himself in. Id. On cross examination, Arthur agreed that her memory was
clearer on April 16, 2015, than it had been when she gave her original deposition. Id. at
171.
3. Charles Erickson Testimony
During Erickson’s deposition on May 1, 2015, he testified that his statement that
he was the sole perpetrator of Heitholt’s murder was a lie “to help Ryan get out of
prison.” [Ex. SS, at p. 124]. He testified that he prepared and signed an affidavit in
25

August 2011 which stated that after his arrest he was given discovery which included
statements by Mallory, Trump, and Arthur. Id. at 137. He claims that his decision to
plead guilty to the murder was influenced by these statements.
II.

Discussion
Ferguson has brought six claims against the Defendant Officers. The officers

contend that they are entitled to summary judgment on these claims under the doctrine of
qualified immunity. Qualified immunity absolves Defendant Officers from civil liability
for damages for “performing discretionary functions . . . insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

To determine

whether the officers are entitled to qualified immunity, the Court must determine (1)
whether Ferguson has “asserted a violation of a constitutional or statutory right” and (2)
whether that right was clearly established at the time the alleged unlawful act occurred.
Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000). A right is not clearly established
unless the law gives the official “fair warning” that the official’s conduct would violate
the right. Hope v. Pelzer, 536 U.S. 730, 731 (2002). The Defendant Officers bear the
burden of proving that they are entitled to qualified immunity. White v. McKinley, 519
F.3d 806, 813 (8th Cir. 2008). “If there is a genuine dispute concerning predicate facts
material to the qualified immunity issue, the defendant is not entitled to summary
judgment.” Id.
A. Count I – Procedural Due Process

26

Ferguson first contends that Defendant Officers violated his procedural due
process rights by committing numerous Brady violations. The Supreme Court held in
Brady v. Maryland, 373 U.S. 83 (1963), that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of
prosecution.” Id. at 87. Brady applies to both impeachment and exculpatory evidence.
U.S. v. Jones, 34 F.3d 596, 599 (8th Cir. 1994). Ferguson contends that Defendant
Officers impermissibly withheld evidence related to the officers’ interviews of Michael
Boyd, Kim Bennett, and Dallas Mallory.2
In order to demonstrate that the Defendant Officers committed a Brady violation,
Ferguson must be able to prove that the officers “intended to deprive the defendant of a
fair trial.” White, 519 F.3d at 814 (quotation omitted). The officers’ failure to preserve
or disclose potential useful information to Ferguson does not constitute a due process
violation unless the failure was the result of bad faith. Id. However, [t]he question is not
whether the defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence. A ‘reasonable probability’ of a different
result is accordingly shown when the government’s evidentiary suppression ‘undermines
2

In the Complaint Ferguson also alleged a Brady violation for withholding information
received from Richard Walker. Defendants argued at length in their motion for summary
judgment that there was no Brady violation committed with respect to the Walker
information. Ferguson did not respond to this argument in his suggestions in opposition
to the motion for summary judgment. The Court finds based on Defendants’ arguments
that there was no Brady violation committed related to this information, which consisted
of non-exculpatory documents irrelevant to impeachment.
27

confidence in the outcome of the trial.’” Kyles v. Whitley, 514 U.S. 419, 434 (1995)
(quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).
In granting Ferguson’s petition for habeas corpus, the Missouri Court of Appeals
concluded that the State committed a Brady violation by failing to disclose the content of
an interview the State conducted with Barbara Trump, Jerry Trump’s wife. The court
concluded that this violation necessitated vacating Ferguson’s conviction. In the Barbara
Trump interview, she reported to Officer Haws that she had no recollection of sending
her husband a newspaper while he was in prison. However, Jerry Trump claimed to have
received a newspaper from his wife, which contained pictures of Erickson and Ferguson
and sparked his memory to be able to identify the pair as the individuals he saw in the
Tribune parking lot the night of the Heitholt murder. Barbara Trump’s statement that she
did not remember ever having sent her husband a newspaper while he was in prison was
therefore deemed “evidence that could have been used to impeach a key government
witness.” Ferguson v. Dormire, 413 S.W.3d 40, 58 (Mo. Ct. App. 2013) (quotation
omitted).
The court of appeals concluded that the State’s failure to disclose the Barbara
Trump interview was particularly material when “considered in conjunction with the
other information the State failed to disclose to Ferguson.” Id. at 66. The court went on
to discuss three other pieces of evidence the State failed to disclose, including the content
of an interview conducted with Melissa Griggs, who told Officer Haws that By George
closed at 1:30 a.m. on the night of Heitholt’s murder; a statement from Ornt that “‘she
couldn’t make an identification’ from the pictures of Ferguson and Erickson in the
28

newspaper”; and Jerry Trump’s delayed sudden ability to identify Ferguson and Erickson.
Id. at 66-71. The court concluded that the Brady violation undermined confidence in the
outcome of Ferguson’s trial given this “pattern of nondisclosures.” Id. at 71. However, it
also specifically noted that “if a defendant knows or learns of undisclosed information
through some other means before or during trial, a conviction will not be overturned
under Brady.” Id. at 68. As Ferguson independently learned of these three pieces of
evidence before or during trial, they did not constitute independent Brady violations, and
only affected the materiality of the Barbara Trump Brady violation as the Court assessed
whether Ferguson’s verdict was worthy of confidence despite the State’s misconduct.
None of the Brady violations alleged by Ferguson in this § 1983 action were addressed
by the Missouri Court of Appeals in vacating Ferguson’s conviction.
1. Michael Boyd Statements
During Ferguson’s habeas corpus proceeding in 2012, Michael Boyd testified that
while leaving the Tribune building on the night of the Heitholt murder, he observed two
people walking through the alley behind the building. [Ex. QQ, at p. 513-14 (Doc. 218-7,
p. 513-14)]. Ferguson’s counsel questioned him specifically about the timing of his
observations, and Boyd stated that he saw two individuals around 2:20 a.m. [Ex. 11, at p.
113-14 (Doc. 238, p. 13-14)]. Ferguson contends that this information was crucial to the
defense because it provided an alibi to the two men in the alley as the murder had already
occurred by the time Boyd saw the men in the alley. Ferguson argues that the State’s
timeline presented at trial theorized that Ferguson and Erickson were hiding behind the

29

dumpsters in the Tribune parking lot at 2:12 a.m. and murdered Heitholt sometime before
Trump and Ornt came upon the scene at 2:20 a.m.
The Court cannot conclude that a Brady violation was committed with respect to
this evidence as Ferguson’s attorney, Charles Rogers, was in possession the information
time of Ferguson’s criminal trial. Rogers stated that he recalled reading Miller’s report
of his interview with Michael Boyd, which indicated that Boyd had a conversation with
Heitholt sometime between 2:10 and 2:15 a.m.:
Q:
.
...
Q:
A:
Q:
A:
Q:

A:

I’m going to show you Mr. Miller’s interview of Mr. Boyd . .
Okay. And do you recall reading Mr. Miller’s report about
his interview with Michael Boyd?
Yes.
And Mr. Boyd told Mr. Miller that the conversation occurred
between 2:10, 2:15 a.m.?
It’s in the report, yes.
And there – there is nothing in Mr. Miller’s interview of
Michael Boyd that indicates Mr. Boyd saw two white males
near the – the Tribune on the night of the murder; is that
right? Take – take your time to –
That’s correct, nothing indicating that – that Boyd told Miller
he saw two white males there.

[Ex. JJ, at p. 70-71 (Doc. 215-3, p. 18)]. This statement establishes that Rogers knew that
Boyd and Heitholt had a conversation in the parking lot between 2:10 and 2:15 a.m. This
interview does not contain any interview about Boyd observing individuals in the alley.
However, Rogers also testified that he also received a copy of later June 2005 interview
of Boyd conducted by Haws:
Q:

And I’m going to hand you Exhibit 10 . . . which I’ll
represent to you is the Bill Haws Interview of Mr. Boyd . . .
30

A:
Q:
A:
...
Q:
A:
Q:
A:
Q:
A:
Q:

A:
Q:

A:

And it looks like it’s dated June 24, 2005. And please take
your time reviewing it, if you need to.
(Witness complies.) Yes.
Okay. And you – you would’ve been actively working on
Mr. Ferguson’s case at this time, correct?
Yes.
And – and you certainly wouldn’t dispute that you received a
copy of Mr. Haws’ interview of Mr. Boyd.
I do not dispute it.
Do you recall seeing this at all?
Very vaguely.
I’m going to direct your attention to the bottom paragraph on
the first page.
Right.
Boyd told Mr. Haws, as he passed the wall where the
dumpsters were located he saw two white guys standing
there. Boyd said he could not identify these individuals, he
said he could not describe their clothing, he just knew there
were two young, white guys standing near the dumpsters as
he drove away. Boyd said he thought nothing of it because
they looked all right and there were always people out at that
night in that part of Columbia. Did I read that accurately?
You read that accurately.
And – and you would have reviewed that information
somewhere when you received this report in discovery,
correct?
I’m sure I did, yeah.

Id. at 71-73. This second report, which Rogers admits to having reviewed, did contain
the information about Boyd seeing two white guys standing near the dumpsters behind
the Tribune. Ferguson does not contest Defendants’ assertion that “Rogers testified that
he received a copy of the police reports documenting the interviews of Michael Boyd.”
[Doc. 234, p. 154]. Rogers’ testimony establishes that between the report from the Miller
interview and the report from the Haws interview, Rogers was in possession of the

31

information that following Boyd’s conversation with Heitholt in the parking lot around
2:10 or 2:15 a.m., Boyd saw two white guys standing near the dumpsters by the Tribune.
This information is substantially the same as the information Boyd reiterated
during his 2012 deposition, which Ferguson argues was improperly withheld from him in
violation of Brady.

The Court notes in reviewing this evidence that it is from a

deposition conducted in 2012, seven years after Ferguson’s criminal trial. In arguing that
Defendants committed a Brady violation, Ferguson does not cite to any specific
interviews, reports, or testimony rendered prior to his trial which were allegedly not
disclosed by the State. He contends only that the information relayed in this 2012
interview was improperly withheld prior to his trial. Drawing all inferences in the favor
of Ferguson, the non-movant, the Court will evaluate Boyd’s 2012 testimony as though
Defendants were in possession of the statements prior to Ferguson’s trial. Boyd stated
during this deposition that after he and Heitholt were done talking in the parking lot that
night he saw two individuals in the alley by the building:
They’re close towards the wall area or dumpster area or whatever
and – But they’re walking. They’re not hiding. They’re not – You
know, they’re just walking, and I am embarrassed because I wasn’t
paying attention coming around the corner. And I was like, you
know, okay. Don’t yell at me, and, you know, I didn’t see you. I am
sorry and everything, and I just drove on, but I didn’t really get a
good look at them because I was more concerned with, you know,
okay. Pay attention, dummy, you know.
[Ex. 11, at p. 104 (Doc. 238, p. 4)]. Following Boyd’s description of his observations in
the lot that night, Boyd was questioned extensively about the timing of his observations:
Q:

You said before – In your first interview you say you leave at
two twenty. So, is it around two twenty when you see them?
32

A.
Q:
A:
Q:
A:
Q:
A:

Exact time frame, I do not know, but at the same time, yeah,
between that area, that time.
So when you say that time, it’s close to two twenty?
Two twenty, yeah.
Right. I mean, it’s not two a.m.; right?
No.
And it’s not ten after two. It’s closer to two twenty?
Closer to two twenty.

Id. at 113-14. This information is substantively identical to the information conveyed to
Ferguson in discovery, which his attorney stated included a report placing Boyd and
Heitholt in the Tribune parking lot having a conversation between 2:10 and 2:15 a.m.,
and a second report noting that when Boyd left the lot following the conversation, he
observed two individuals standing near the dumpsters. There is no evidence in the record
which suggests that Defendants were in possession of a more specific timeline regarding
Boyd’s presence in the lot and observations in the alley at the time of trial which was not
turned over to Ferguson. The uncontroverted evidence of the record shows that as of the
time of Ferguson’s criminal trial in October 2005, the content of the relevant Boyd
statements had been disclose to Ferguson’s counsel. As Ferguson was in possession of
this information at the time of trial, there was no Brady violation with respect to this
evidence.
2. Kim Bennett Interview
Ferguson next argues that Officers Short and Liebhart withheld exculpatory
information provided by Kim Bennett, who informed the officers that she observed
Ferguson and Erickson leave By George between 1:15 and 1:30 a.m. and drive away
without retrieving a tire tool or opening the trunk. The State theorized at Ferguson’s trial,
33

however, that Ferguson murdered Heitholt sometime between 2:12 and 2:26 a.m., nearly
a full hour after Bennett states she saw Erickson and Ferguson drive away from By
George. [Ex. B, at FERGUSON004617 (Doc. 211-1, p. 19)]. Even if Bennett had
testified at Ferguson’s criminal trial that she observed him drive away from By George at
1:30 and the jury found her testimony credible, Bennett’s statement would not have
precluded Ferguson and Erickson from traveling the few blocks from By George to the
Tribune building by 2:10 a.m. consistent with the State’s timeline. Therefore, even if
Defendants improperly withheld this information from Ferguson, the suppression does
not “undermine confidence in the outcome of the trial,” as the outcome of the trial was
not inconsistent with the Bennett evidence. Kyles, 514 U.S. at 434.
Ferguson argues that this information was exculpatory because it completely
impeached the State’s theory told through Erickson.

To say that Kim Bennett’s

statements “completely impeached” the State’s theory is inaccurate.

It is true that

Erickson did not mention driving away from By George during his interview with Short.
Erickson merely agreed when with Detective Short’s suggestion that he and Ferguson
walked away from By George. [Ex. II, at p. 3 (Doc. 215-1, p. 2)]. Other than the
inconsistency between walking and driving from the scene, however, Bennett’s statement
is not inconsistent with Erickson’s statements to Short.
Bennett’s statements are also largely consistent with Erickson’s trial testimony.
Erickson testified at trial that after he and Ferguson had been at By George for a while,
they left the bar and started walking to Ferguson’s car. [Ex. B, at FERGUSON002891
(Doc. 206-2, p. 196)]. After they arrived at the vehicle, Erickson testified that “We got
34

into the car. And I told him I wanted to go home. He said, ‘Well, if we could get some
more money, we could get some more drinks. We could buy some more drinks and stay
out later.’ And he proposed that we rob someone in order to get more money to buy more
drinks.” Id. at FERGUSON002892-93. Erickson testified that after the two decided to
rob someone, “we got out of the car, and we decided that we should go downtown, in the
– more in the center of downtown, and get away from the club, when we were going to
do this robbery.”

Id. at FERGUSON002893.

The only clear difference between

Erickson’s testimony and Bennett’s statement is Bennett’s contention that she saw
Ferguson and Erickson drive off. This is not enough to undermine confidence in the
verdict. It is entirely possible that Bennett observed Ferguson and Erickson walk away
from By George, get into Ferguson’s car, and assumed they drove off. As noted above,
even if she did see them drive off in conflict with Erickson’s statement, this would not
have precluded them from re-parking elsewhere in downtown Columbia and walking the
short distance to the Tribune building. Any impeachment value to this evidence is
minimal at best. The Court cannot conclude that the State’s failure to produce Bennett’s
statement in any way undermines confidence in Ferguson’s conviction.

As such,

Ferguson has presented insufficient evidence to support his claim of a Brady violation
with respect to Bennett’s statement.
3. Dallas Mallory Interview Tactics
Ferguson’s final argument in support of his procedural due process claim is that
Defendant Officers violated Brady when they failed to disclose coercive tactics used
during their interview of Dallas Mallory. Neither party cited and the Court is unaware of
35

any law suggesting that Brady requires disclosure of the type of interview tactics
allegedly used to coerce Mallory’s confession. Even if Brady did compel disclosure of
this type of information, Mallory provided an affidavit to Ferguson’s counsel in
December 2004 stating that he “was so scared at the second interview, 09/14/04 from the
abuse I was subjected to in the first interview, 03/10/04 that I was saying what the police
wanted to hear to avoid the threat and abuse again.” [Ex. S. (Doc. 220-3)]. Thus,
Ferguson’s counsel knew about the alleged coercion and falsities in Mallory’s statements
to the officers well before Ferguson’s trial began on October 14, 2005, and there was no
Brady violation.
As Defendants committed no Brady violation with respect to these three pieces of
evidence, summary judgment is granted for the Defendants on Ferguson’s Count I,
procedural due process claim.
B. Count II – Substantive Due Process: Fabrication of Evidence
Under the Fourteenth Amendment, the guarantee of substantive due process
“‘prevents the government from engaging in conduct that shocks the conscience or
interferes with rights implicit in the concept of ordered liberty.’” Moran v. Clark, 296
F.3d 638, 643 (8th Cir. 2002) (quoting Weiler v. Purkett, 137 F.3d 1047, 1051) (8th Cir.
1998) (en banc)). This protection “prohibits conduct that is so outrageous that it shocks
the conscience or otherwise offends judicial notions of fairness, or is offensive to human
dignity.” Id. (quotations omitted). “[W]hen a person is damaged by outrageous police
misconduct but the resulting injury does not neatly fit within a specific constitutional
remedy, the injured party may, depending upon the circumstances, pursue a substantive
36

due process claim under section 1983.” Id. at 646. Ferguson argues that Defendant
Officers fabricated evidence used to induce Erickson’s guilty plea and testimony
implicating Ferguson in the Heitholt murder, which constitutes a substantive due process
violation able to be remedied by section 1983.
1. Erickson Confession
a. Ferguson’s Right to Assert Claim
Defendant Officers contend that Ferguson’s claim constitutes an improper attempt
to challenge Erickson’s conviction. Defendants raise a host of issues with the claim
premised on this improper challenge: (1) Ferguson lacks standing to challenge the
conviction; if the Court concludes that he has standing to pursue the claim, (2)
Ferguson’s claim is barred by Heck v. Humphrey, 512 U.S. 447 (1994); (3) the claim is
barred by the Rooker-Feldman doctrine, (4) Ferguson is collaterally estopped from
raising this claim, and (5) the claim is barred by res judicata.
These arguments fundamentally misunderstand the premise of Ferguson’s claim.
Ferguson has not asserted that Erickson’s guilty plea should be invalidated or that his
confession or guilty plea was coerced. Instead, Ferguson contends that the Defendant
Officers fabricated evidence through Erickson, which was then used at trial against
Ferguson and caused him harm.

None of these assertions bear on the validity of

Erickson’s guilty plea, which Erickson has never attempted to withdraw.
Defendants repeatedly argue that if Ferguson were to be successful on his claim, it
would necessarily imply invalidity of Erickson’s state criminal conviction.

This

argument ignores the importance of the individual rights the Constitution affords
37

Ferguson independent of Erickson’s conviction. One criminal defendant’s decision to
plead guilty cannot preclude alleged co-conspirators from asserting shortcomings with
the evidence existing at the time of the plea in their own defense. C.f. Heck v. Humphrey,
512 U.S. 477, 486-87 (1994) (holding that a section 1983 plaintiff must be able to prove
that his own conviction being challenged in the 1983 action has been overturned,
invalidated, or called into question before the 1983 claim may be pursued). Furthermore,
the Missouri Court of Appeals’ decision to grant Ferguson’s habeas corpus petition, and
recognition of “Erickson’s recantation of his ‘seriously undermined’ trial testimony
implicating himself and Ferguson in the murder of Mr. Heitholt,” suggest that the
underlying facts surrounding Erickson’s conviction have already been questioned to some
extent. Ferguson v. Dormire, 413 S.W.3d 40, 72-73 (Mo. Ct. App. 2013). To the extent
that Erickson’s conviction has already been questioned, Defendant Officers’ concerns
about implicit invalidity of the conviction are not unique to Ferguson’s section 1983
lawsuit and do not justify the Court barring Ferguson’s claims.
Finally, even if a jury were to conclude that there were constitutional deficiencies
in the Defendant Officers’ conduct in securing Ferguson’s conviction, this conclusion
would not necessarily imply anything about Erickson’s guilty plea. Erickson chose to
speak to the officers and plead guilty after undergoing multiple interviews and consulting
with an attorney over the course of months. The validity of Erickson’s guilty plea is
dependent on factors beyond the issues alleged by Ferguson, and Ferguson has never
contended that there are any legal shortcomings with Erickson’s plea.

38

Because Ferguson’s claim is independent from Erickson’s conviction and guilty
plea, none of Defendant Officers’ arguments regarding the claim being barred are
persuasive. There is no standing problem in this case because Ferguson is alleging that
he suffered harm due to improper evidence used to convict him in state court. The fact
that Ferguson has standing to bring this claim, however, does not mean that he is in
privity with Erickson such that collateral estoppel or res judicata bar his claims.3
Ferguson and Erickson were convicted in separate proceedings based on separate
evidence and pleas and received separate sentences. As Ferguson was not a party to
Erickson’s case or conviction, and the outcome of this case has no bearing on Erickson’s
conviction or guilty plea, the Rooker-Feldman Doctrine also does not bar Ferguson’s
claim. Heck v. Humphrey does not bar Ferguson’s claim because Ferguson was not a
party to Erickson’s conviction. See Hayward v. Cleveland Clinic Foundation, 759 F.3d

3

Defendants discuss James v. Paul, 49 S.W.3d 678 (Mo. banc 2001), at length in support
of their collateral estoppel argument. James v. Paul held that the plaintiff in an insurance
action was collaterally estopped from contesting whether the defendant in the underlying
criminal case had intended to injure the plaintiff, when the defendant had plead guilty to
assault. The James court held that a court must consider four factors in determining
whether to give preclusive effect to a prior judgment: (1) whether the issue decided in the
prior adjudication was identical to the issue presented in the present action; (2) whether
the prior adjudication resulted in a judgment on the merits; (3) whether the party against
whom estoppel is asserted was a party or was in privity with a party to the prior
adjudication; and (4) whether the party against whom collateral estoppel is asserted had a
full and fair opportunity to litigate the issue litigated in the prior suit. Here, the issue
being asserted by Ferguson is not the same as the issue in the prior action. Neither
Ferguson nor Erickson has ever been party to a suit involving adjudication of whether
defendants fabricated evidence. Moreover, unlike James, Ferguson was not a third party
beneficiary to Erickson’s guilty plea. None of the justifications for the application of
collateral estoppel in James apply to Ferguson’s case.
39

601, 616 (6th Cir. 2014) (noting that “Heck does not apply to third-party § 1983
claims.”).4
Finally, Defendants argue that “the allegations against Defendant Officers in this
lawsuit have not been called into question by any Court.” Presumably, Defendants meant
to argue that the Defendant Officers’ actions have not been criticized or deemed to
violate Ferguson’s constitutional rights by another court. While no court has specifically
addressed the legality of Defendants’ actions to this point, dicta from the Missouri Court
of Appeals suggests that the court saw at least some error in the officers’ actions. See
Ferguson v. Dormire, 413 S.W.3d 40, 73 (Mo. Ct. App. 2013). Moreover, it is not
necessary for Ferguson to be able to prove that courts have endorsed his arguments prior
to the filing of his § 1983 action. While Heck would prevent him from filing a § 1983
lawsuit which would appear to invalidate an existing conviction, Ferguson’s conviction
has been vacated and he is free to pursue his civil claim without first having to prove its
validity elsewhere.
b. Fabrication of Evidence Through Erickson

4

While Defendant Officers cite one unpublished district court opinion applying Heck to a
third-party claim, Barton v. Priest, 2008 WL 4372637, at *5 (E.D. Mich. 2008), the Court
concludes consistent with the Sixth Circuit that this is not the appropriate rule. See also
Beets v. County of Los Angeles, 200 Cal. App. 4th 916, n.2 (2011) (noting that “we do not
find Barton’s brief analysis of these issues instructive.”). Ferguson was not a party to
Erickson’s conviction. Moreover, Erickson decided it was in his best interest to plead
guilty to the Heitholt murder rather than contesting the charge and proceeding to trial.
Ferguson and Erickson were not positioned similarly in incurring their convictions, and
any waiver of rights or arguments Erickson made in pleading guilty to the offense cannot
be held against Ferguson.
40

Ferguson argues that the Defendant Officers fabricated evidence against him in
“[A] manufactured false evidence claim

violation of the Fourteenth Amendment.

requires proof that investigators deliberately fabricated evidence in order to frame a
criminal defendant.” Winslow v. Smith, 696 F.3d 716, 732 (8th Cir. 2012). In order to
constitute a Fourteenth Amendment violation, defendants’ actions must be “conscienceshocking.” Id.
Defendants first claim that Ferguson has failed to state a claim because he admits
that the alleged fabricated evidence was not used to obtain his conviction. In support of
their allegation, Defendants cite paragraph 185 of the Complaint, which states “The
prosecution’s case was based entirely on the fact that Erickson took a plea for 25 years to
testify against Ryan, and the identification of Ryan made by Jerry Trump.” Nowhere in
this or the surrounding paragraphs does Ferguson admit that fabricated evidence was not
used to obtain his conviction. Wilson v. Lawrence County, 260 F.3d 946 (8th Cir. 2001),
cited by Defendants in support of their contention, merely reiterates the validity of
Ferguson’s claim:
Appellants argue that this claim is not cognizable because it is an
attempt by Wilson to assert the constitutional rights of a third
party.[] The district court correctly noted that this claim is not an
attempt by Wilson to assert Wall’s rights, but rather a claim that the
appellants knowingly used false or unreliable evidence (the coerced
statement from Wall) against Wilson at his criminal proceedings. If
officers use false evidence, including false testimony, to secure a
conviction, the defendant’s due process is violated.
Id. at 954.

Defendants contend that Wilson is distinguishable because Erickson’s

confession was not used in Ferguson’s criminal proceedings (rather, Erickson testified
41

against Ferguson), so Ferguson is asserting Erickson’s rights in claiming that the
confession was coerced. Whether or not Erickson’s confession was coerced, however, is
not the issue before the Court. As in Wilson, the issue is whether Defendants “knowingly
used false or unreliable evidence” against Ferguson in his criminal proceedings. The
Court need not consider, and makes no findings here regarding the validity of Erickson’s
confession in order to establish whether Defendants knowingly used false or unreliable
evidence against Ferguson via Erickson’s testimony.5
Ferguson argues that despite Erickson’s obvious lack of personal knowledge
regarding the circumstances surrounding Heitholt’s murder, Defendants fed him
information and used him to fabricate evidence against Ferguson. As a result of the
fabricated evidence and reckless investigation, Ferguson contends, the officers induced
Erickson to plead guilty and testify falsely against him.

Ferguson argues that the

Defendant Officers should have known that Erickson was an unreliable witness for the
following reasons: (1) they should have recognized signs of Erickson’s drug use prior to
the interview, (2) Erickson displayed memory loss, (3) they failed to ask him about
alcohol or drug use at the time of the murder, (4) Erickson stated that Heitholt was face
5

As Defendants note in their briefing, after the initial interrogation of Erickson the
officers conducted a follow up interview with Erickson’s attorney present. In that
interview Erickson reiterated his statement that he and Ferguson were involved in the
murder. Over a month later, Erickson plead guilty to three felony counts and in doing so
testified that no one had threatened him or coerced him and that he and Ferguson killed
Heitholt. Given the presence of Erickson’s attorney and extended period of time between
Erickson’s statements to the officers and the court, there may have been no legal
deficiencies in Erickson’s confession. However, even if Defendant Officers proved that
Erickson’s confession was legally sound, this would not necessarily mean that the
Defendant Officers’ actions in eliciting the confession and Erickson’s testimony at
Ferguson’s trial were constitutionally sound with respect to Ferguson’s rights.
42

up when Ferguson strangled him but the officers knew that Heitholt had been found face
down, (5) Erickson claimed Ferguson’s father had found Heitholt’s wallet at Ferguson’s
residence, but the wallet was found in Heitholt’s car, (6) Erickson stated that Heitholt was
strangled with a shirt when the officers knew he had been strangled with a belt, (7) the
path Erickson described the boys taking at the scene was inconsistent with the results of
luminol testing, (8) Erickson claimed to have been wearing a coat at the scene, but no
witnesses described the boys as wearing coats, (9) Erickson claimed that Heitholt had
kicked him, but stated that he had no injuries the next day, (10) Erickson errantly
described Boyd as a white man, (11) Erickson claimed to only have hit Heitholt one time
when Heitholt had been hit many times, (12) Erickson claimed he yelled to Ornt to get
help, but no help statement was ever made, (13) Ornt claimed a blonde individual said
“somebody’s hurt here man,” and Erickson is not blonde, (14) Erickson stated he vomited
at the scene, but no vomit was found at the murder site, (15) the officers tampered with
Report 243, which Erickson relied on in deciding to plead guilty, and (16) the officers
obtained the confession through 44 leading questions that provided all of the key
information about the crime.
Defendants make numerous arguments about the validity of Erickson’s statements
and how the information supplied by Erickson and the officers’ actions in accumulating
the information was acceptable. The Court acknowledges that in many instances the
inconsistencies between Erickson’s testimony and the facts can be explained away by
theorizing alternate scenarios where Erickson’s version of the facts comports with the
evidence found at the scene. However, in a § 1983 action, “‘[a]s with any summary
43

judgment motion, we are required to make all reasonable inferences in favor of the nonmoving party, we do not resort to speculation.’” Livers v. Schenck, 700 F.3d 340, 350
(8th Cir. 2012) (quoting Brown v. Fortner, 518 F.3d 552, 558 (8th Cir. 2008)). The
substance of Officer Short’s interview of Erickson allows for the reasonable inference
that the 44 leading questions asked by Officer Short and other demonstrably incorrect
statements made by Erickson regarding the evidence found at the murder scene combined
to constitute proof of fabrication of evidence. [Ex. II (Doc. 215-1)]. The question before
the Court is not whether each individual allegation against the Defendant Officers can be
explained away by the defendants, but whether the evidence as a whole could be
sufficient for a fact finder to conclude that the Defendant Officers engaged in consciousshocking behavior and deliberately fabricated evidence that was presented to convict
Ferguson. See Moran v. Clark, 296 F.3d 638, 643 (8th Cir. 2002); see also Livers v.
Schenck, 700 F.3d 340, 354 (8th Cir. 2012) (“State officials may not cherry-pick cases
that address individual potentially coercive tactics, isolated from one another, in order to
insulate themselves when they have combined all of those tactics in an effort to overbear
an accused’s will.” (quotation omitted)). As Ferguson has presented evidence that could
be determined by a jury to warrant a Plaintiff’s verdict in this case, Defendants are not
entitled to summary judgment with respect to Erickson’s testimony.
2. Reports of Interviews of Mallory, Arthur, and Walker
a. Mallory Statements
The record contains two versions of Report 243, a report documenting the content
of Defendant Westbrook’s interview with Dallas Mallory. [Ex. WW (Doc. 221-3); Ex.
44

XX (Doc. 221-5)]. According to Ferguson, the report was altered to insert the following
paragraph into what is now Exhibit WW:
We talked further, and Detective Harmon showed MALLORY a
picture of ERIC speaking with ERICKSON on Halloween night
2001. MALLORY told me he had been dr rm al day. He explained
he worked at FORUM DRY CLEANERS, and he wore the unifo the
Blue note later that evening. He said he had been drinking that
night, and N that evening. He said he could not remember the
location of that contact, but and worked up. MALLORY said
ERICKSON told him he had “beat someone down.” He s thing in
his hand, but he could not recall what. I inquired as to whether he ha
d he stated he could not recall.
[Ex. WW, at FERGUSON00135 (Doc. 221-3, p. 2)]. This paragraph is not included in
Exhibit XX. Ferguson argues that it is clear that the report was fabricated because the
signature page of the original report was removed and attached to the fabricated report,
which resulted in incorrect page numbering in the fabricated report.

Defendant

Westbrook argues that the duplicate reports were a result of a computer glitch. It is not
apparent from the record which contention is correct.
Defendants argue that even if the statement was fabricated, the alleged fabrication
did not convince Erickson to confess plead guilty, as Erickson only saw the report after
he had already admitted numerous times that he was involved in the Heitholt murder and
named Ferguson as his accomplice multiple times. Defendants further contend that
Erickson’s decision to inform the officers that he had spoken to Mallory about the murder
meant that Erickson did not rely on the report in making the confession.
Whether Erickson would have acted differently had he been presented with
Exhibit XX rather than Exhibit WW is a question of fact appropriate for a jury. Exhibit
45

XX contains only equivocal statements like “I asked him if he had seen either
ERICKSON or FERGUSON that night, and he stated he could not remember,” “I advised
MALLORY we had information he had in fact spoke with one of the suspects,
ERICKSON or FERGUSON on the night of the homicide.. MALLORY stated he did not
believe he did so, and he would be willing to take a voice stress analysis examination to
prove to investigators that he did not talk to either,” and “We talked further, and
Detective Harmon showed MALLORY a picture of ERICKSON. MALLORY then
advised he did seem to remember speaking with ERICKSON on Halloween night 2001.”
[Ex. XX, at FERGUSON00139 (Doc. 221-5, p. 2)]. These statements are a far cry from
the specific allegations that appear in Exhibit WW.
As Defendants note, Erickson brought Mallory to the attention of the Defendant
Officers and informed the officers that he told Mallory that he and Ferguson had been
involved in the murder.

However, the circumstances surrounding Erickson’s initial

interviews on March 10, 2004 are contested by the parties. Erickson underwent two
interviews on March 10. The first was not recorded. In the second recorded interview,
Detective Short asked Erickson a slew of leading questions. Furthermore, Erickson
indicated at multiple points during the recorded interview that he was unsure of what had
happened:
Q:
A:
Q:
A:
Q:
A:

So it’s possible Ryan could have strangled this guy
with his belt, got the keys, and you not know about it?
The guy – The man’s belt?
Yeah.
His own belt?
Yes. Does this ring a bell?
Not at all. Like –
46

Q:
A:
Q:
A:
Q:
A:
Q:
A:

But you saw Ryan strangle him though?
I thought I did.
Yeah. Okay. All right.
I mean, I might not even know what I’m talking about
now.
Well, like I said, you’ve told us something only people
(inaudible) would know, so that’s not even a question.
What did I – Like, what?
Again, playing poker. I mean, you remember what
you told me. You remember what’s going on.
Yeah.

[Ex. II, at p. 23 (Doc. 215-1, p. 7)].
A:
Q:

A:
Q:
A:

I mean, for all I know, I could have just flipped out,
man. I don’t know.
Well, before you say that, listen to me. We got a
Crime Stoppers report that sits there and tells us that
you made comments – or not comments – that you
made the statement – Crime Stoppers report said that
you said to Ryan at a party on New Year’s Eve that
“We killed that guy.” . . . So I know that you know
what you’re talking about.
Secondly, Nick walks in here today and says,
“Chuck told me he did it.” So it’s not a matter of
flipping out and “I don’t know what’s going on.” We
know you know what’s going on. Maybe you forgot
some of it, but you didn’t forget all that you’re telling
me.
. . . There is no way in hell that you hit this guy
once, turned around, and got sick. If you only hit him
once, turned and ran away and got sick, you had to
hand the thing off to Ryan, because this guy’s got head
wounds all over his head. We’re talking minimum
fifteen strikes.
I must have done it then. I mean –
Okay.
Either that, or I stopped and he did. I don’t know.

Id. at 25-27. Given Erickson’s apparent confusion about the extent of his involvement in
the Heitholt murder, it is unclear what effect Mallory’s statements in Exhibit XX would
47

have had on Erickson’s belief that he was involved in the crime if not accompanied by
the allegedly fabricated paragraph that appears in Exhibit WW. Furthermore, Erickson
stated in a 2011 affidavit that “[s]oon after my arrest I was given my discovery. I was
given statements by Dallas Mallory, Jerry Trump and Meghan Arthur. Those statements
led me to believe that I was guilty.” [Ex. BBB (Doc. 211-3)].
The Court cannot say based on the evidence before it whether (1) Exhibit WW
was fabricated, and (2) whether any fabrication infringed on Ferguson’s liberty interest
by influencing Erickson’s testimony against him. See Winslow v. Smith, 696 F.3d 716,
582 (8th Cir. 2012). These are questions appropriate for a jury.6
b. Arthur Statements
Ferguson also contends that Defendant Stroer fabricated evidence in the report she
prepared following her March 11, 2004 interview with Meghan Arthur. Defendants
argue that any inaccuracies were reasonable based on the information provided by Arthur
and that Arthur’s primary objection to the content of the report was that it was
“dramatized.” Defendants also contend that as Arthur did not testify at Ferguson’s

6

Defendants also argue that there can be no infringement on Ferguson’s rights as a result
of the Mallory testimony because Ferguson’s counsel was aware of both of the statements
at the time of trial and they were never used in the criminal trial, they cannot violate his
due process rights. They also argue that this evidence was never used by Judge Crane in
deciding to file charges against Ferguson, as Westbrook’s interview of Mallory did not
conclude until 2:50 p.m. on March 10, 2004, and Judge Crane filed the Complaint before
1:09 p.m. on March 10. Because it is possible that the evidence was fabricated and
influenced Erickson’s testimony at Ferguson’s trial, however, the Mallory statement
presents an issue for trial even if it did not otherwise influence the validity of Ferguson’s
conviction.
48

criminal trial and the prosecutor did not rely on Arthur’s statement in preparing the
Complaint, there was no harm caused by any fabricated statement.
Arthur has claimed at multiple points that there are inaccuracies in Report 252,
prepared by Stroer, including notes that Arthur thought Ferguson took cocaine the night
she heard him talking at a party and notes that made it sound as though Arthur knew what
Ferguson had been discussing that night. According to Arthur, her comments were
largely speculation and she did not know what Ferguson had been talking about, though
she thought it might have been drugs. In her 2015 deposition, Arthur commented that the
report contained “a lot of speculation and things that I just didn’t say.” [Ex. Q, at p. 26
(Doc. 218-6, p. 7)].
Ferguson has cited sufficient questions about the accuracy of the record to create a
genuine issue of material fact as to whether Defendant Stroer fabricated evidence in her
report regarding Arthur’s statement and whether Erickson relied on any fabrication in
testifying against Ferguson. Defendants argue that all of the alleged false facts were
reiterated by Arthur at various later points in the investigation. While Arthur reiterated
some of the facts at later points in the investigation, her concessions to the facts set out in
Stroer’s report appear to have been largely premised on the timing of later depositions
and her inability to remember anything different. [See Ex. P, at FERGUSON006785-86
(Doc. 218-4, p. 48-49) (“I don’t remember. I mean, I know – I’m not like the typical
person you’re dealing with right now. My – I’m like – I can’t remember things that
happened like six months ago. I mean, that’s kind of what happens to your brain when
you have a baby, like I’m in a very foggy point. . . . I’m like – my memory is not – it
49

might solidify, you know, in a couple of years, but I know that this is like – this might not
be the best time to be asking me about a lot of this and I’m going to tell you I don’t
remember.”)]. Her failure to contest the 2004 report at this earlier date therefore is not
clear evidence that the report was accurate.
For the first time in their reply brief, Defendants also contend that Arthur should
not be permitted to create credibility issues with her prior testimony by testifying
differently now. In support of their argument, Defendants cite Camfield Tires, Inc. v.
Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983).

Camfield addressed

whether conflicting statements between an affidavit produced with a summary judgment
motion and prior deposition testimony by the affiant were sufficient to create a genuine
issue of material fact. Id. at 1364. The Eighth Circuit held that the affidavit did not
create a genuine issue of material fact “because the circumstances in this case do not
suggest legitimate reasons for Camfield’s filing of the inconsistent affidavit.” Id. at 1365.
The court went on to explain that “[i]f a party who has been examined at length on
deposition could raise an issue of fact simply by submitting an affidavit contradicting his
own earlier testimony, this would greatly diminish the utility of summary judgment as a
procedure for screening out sham issues of fact.” Id.
Unlike the situation in Camfield, Arthur is not attempting to contradict earlier
deposition testimony with a new affidavit being presented in conjunction with the motion
for summary judgment. Here, the allegation is that the report of Arthur’s 2004 statement
to Officer Stroer was fabricated. While Arthur failed to contest some of the statements
present in the 2004 report in a 2012 deposition taken in conjunction with Ferguson’s
50

habeas petition, she has since raised issues with the substance of the 2004 report. She
was deposed in this case and consistently stated that the contents of the 2004 report were
fabricated. This is a far different situation from that in Camfield where the party who had
deposed the witness was later blindsided by contradictory statements in an affidavit
without a chance to explore the discrepancy. Defendants had a full and fair opportunity
to depose Arthur about the differences in the 2004 report, her 2012 deposition, and her
deposition testimony in this case. Arthur’s allegations regarding inaccuracies in the 2004
report may be considered without violating the principles set forth in Camfield.
Whether the 2004 report was fabricated constitutes a factual dispute which must
be addressed at trial. It is also unclear from the record what affect any fabrication may
have had on Erickson and his testimony against Ferguson. Arthur was questioned by
Stroer and the report was prepared one day after Erickson was questioned by the officers.
The proximity of this report to Erickson’s confession, which contained the above
discussed caveats and statements regarding Erickson’s confusion and reliance on Arthur’s
statement suggest that any fabricated evidence could have affected Erickson’s conduct in
pleading guilty and testifying against Ferguson.
c. Richard Walker Interviews
Ferguson also argues that the Defendant Officers fabricated Richard Walker’s
statements. Walker spoke with the officers twice in 2004: once with Detective Stroer in
April 2004, and again with Detective Liebhart in September 2004, stating both times that
he had received information from Ferguson about the Heitholt murder while they were
incarcerated together in the Boone County Jail. Walker told the detectives that Ferguson
51

had described to him how he murdered Heitholt. In January 2005, Jim Miller interviewed
Walker and when asked about whether he thought what he told the police in September
2004 was the truth, Walker replied “I’d say probably part of it was and probably part of it
wasn’t …” [Ex. TT, at p. 2 (Doc. 220-5, p. 2)]. He went on to say “If anything, the only
thing I remember him saying is that, uh, that he was not guilty and that, that friend of his
was just ate up on drugs or whatever and was trying to set him up and to frame him. He
didn’t even, didn’t even know that, what he was doing, because it didn’t make no sense.”
Id. at 6.
Sometime after Walker was in Ferguson’s cell block, he was moved to Erickson’s
cell block. Erickson stated the following in a 2011 affidavit:
Something that helped convince me to take a deal was Richard
Walker’s statement. Richard Walker was in Ryan’s cell block first.
Then later Walker was in my cellblock. Walker told me that Ryan
“was going to do what he had to do to get out of it.” Walker told me
that Ryan had told him that he dropped me off and I killed Heitholt
alone. Then when Ryan got there after parking his car, Heitholt was
already dead.
[Ex. BBB, at OFFICERS001584 (Doc. 211-3, p. 17)].
While Erickson may have relied in part on Walker’s statement in deciding to plead
guilty or testify against Ferguson, Ferguson has presented no evidence or argument to
support his contention that the Defendant Officers fabricated Walker’s statements. When
interviewed by Miller about the content of the 2004 reports, Walker never suggested that
the officers fabricated any of the evidence in the reports. [Ex. TT (Doc. 220-5)]. Walker
stated that he was not even sure whether Ferguson was innocent or guilty: “I can’t say

52

he’s innocent or guilty, but like I told you, in my heart, I feel like he was innocent.” Id.
at 7. Walker also conceded that he may have intentionally lied to the police:
JM: Did you intentionally just lie with, to the police?
RW: Did I intentionally lie to the police?
JM: About some of this stuff? For whatever reason, just as
a joke, or as whatever . . .
...
RW: If I did, it was to help Ryan.
Id. at 9-10. These statements do not support Ferguson’s contention that the officers were
responsible for any inaccuracies in the reports documenting Walker’s statements.
Ferguson notes that in a 2015 deposition, Detective Liebhart testified that
“[Walker’s] history would make one believe he’s not credible.

And then his final

interview to me at the Fulton Reception and Diagnostic Center removed all doubt that he
had any court credibility.” [Ex. DD, at p. 54 (Doc. 212-1, p. 54)]. However, the officers’
decision not to share with Erickson that they had doubts regarding Walker’s credibility
does not equate fabrication of evidence. Moreover, while Ferguson notes that Erickson
was in possession of the police reports documenting both the April and September 2004
Walker interviews at the time he decided to plead guilty, Ferguson does not cite anything
in the record suggesting that Erickson relied on those statements. Instead, they cite
Erickson’s note in a 2011 affidavit that he had conversations with Walker that influenced
his decision to plead guilty. [Ex. BBB, at OFFICERS001584 (Doc. 211-3, p. 17)]. As
there is no evidence that any of the officers coerced Walker into making statements about
Ferguson or Erickson’s involvement in the murder, no evidence that they fabricated any
of the information contained in the Walker reports, and no evidence that they promised
53

Walker anything in return for making a statement about the murder, the Walker evidence
alone is insufficient to prove Ferguson’s due process claim in Count II.
C. Count III – Substantive Due Process: Reckless Investigation
Ferguson argues that Defendant Officers violated his due process rights by
recklessly investigating the case. In order to succeed on a constitutional claim based on
reckless investigation, the plaintiff must be able to show that the officer’s “failure to
investigate was intentional or reckless,” and was shocking to the conscience. Cooper v.
Martin, 634 F.3d 477, 481 (8th Cir. 2011). Evidence that is shocking to the conscience
includes “(1) evidence that the state actor attempted to coerce or threaten the defendant,
(2) evidence that investigators purposefully ignored evidence suggesting the defendant’s
innocence, [and] (3) evidence of systematic pressure to implicate the defendant in the
face of contrary evidence.” Akins v. Epperly, 588 F.3d 1178, 1184 (8th Cir. 2009). “Mere
negligent failure to investigate does not violate substantive due process.

Likewise,

allegations of gross negligence do not give rise to a constitutional violation.” Amrine v.
Brooks, 522 F.3d 823, 833 (8th Cir. 2008) (citations omitted). An officer’s failure to
follow up on additional leads would not constitute a substantive due process violation.
See id.
Ferguson argues that the Defendant Officers’ reckless investigation is apparent in
the record from the officers’ coaching of Erickson, Mallory, Arthur, and Walker, as well
as their indoctrination of Erickson, statement to Erickson that he was on the “chopping
block,” decision to pursue prosecuting Ferguson and Erickson for the Heitholt murder
despite their fingerprints not appearing at the scene, and decision to continue the
54

prosecution despite Ferguson and Erickson bearing no physical resemblance to the
individuals described by Ornt and Trump. Ferguson also argues that the officers’ failure
to consider Boyd as a suspect was reckless, as he was the last person known to be with
Heitholt, he had recently had an argument with Heitholt, and he gave inconsistent
statements to the police.
As described in Part II, supra, Ferguson has alleged sufficient facts to create a
submissible question regarding whether Defendants fabricated evidence that influenced
the testimony against him at trial. If Ferguson succeeds on his fabrication claim, this
would certainly constitute some “evidence of systematic pressure to implicate the
defendant in the face of contrary evidence.” Akins v. Epperly, 588 F.3d 1178, 1184 (8th
Cir. 2009). As Ferguson has presented some evidence which a jury could find to indicate
that Defendants undertook a reckless investigation, Defendants are not entitled to
summary judgment on this claim.

The remainder of the facts alleged to constitute

evidence of a reckless investigation, while likely insufficient independently to constitute
evidence of recklessness, could bolster Ferguson’s reckless investigation claim in
combination with the fabrication evidence.7
In denying summary judgment on Count III, the Court finds the Eighth Circuit’s
opinion in Wilson instructive:

7

Defendants argue that as the Complaint does not state which of the Defendant Officers
allegedly committed which parts of their investigation recklessly, Ferguson’s claim fails.
However, Ferguson’s Count V alleges that the Defendant Officers were engaged in a
conspiracy. As such, it is not necessary that Ferguson specifically identify which officers
committed each alleged act.
55

From this evidence, a factfinder could determine . . . that this was an
aggressive but imperfect investigation where the officers had some
basis to believe that Plaintiffs were guilty and, at most, the officers
were negligent in putting together the evidence to inculpate
Plaintiffs. But a factfinder could also determine that this was a
reckless investigation where members of the sheriff’s department
forced vulnerable individuals into agreeing that they had a role in the
Wilson murder and then coached these individuals into giving false
testimony that fit into the sheriff department’s own narrative of
events while ignoring evidence contrary, and potentially fatal, to the
department’s theory.
Defendants may not be held liable merely for aggressively
investigating the crime, believing witnesses, following leads, and
discounting those pieces of evidence that do not fit with the evidence
at the scene of the crime. In investigating a crime, it is unlikely that
every witness’s account will align perfectly with the testimony of
every other witness. . . . However, Defendants may be held liable if
they recklessly ignored evidence suggesting Plaintiffs’ innocence or
systematically pressured witnesses to manufacture false testimony to
fill gaps in an investigation.
Winslow v. Smith, 696 F.3d 716, 733-34 (8th Cir. 2012).

Ferguson has presented

evidence that a jury could determine proved that the Defendant Officers pressured
Erickson into agreeing that he played a role in the Heitholt murder and coached him to
give false testimony against Ferguson either by supplying him facts about the murder
during his interrogations or feeding him fabricated evidence to convince him to plead
guilty. While a plaintiff’s verdict on this claim is not a foregone conclusion based on the
evidence presented by the parties in conjunction with the summary judgment motion, it is
not the Court’s job to determine the veracity of Ferguson’s evidence at this juncture. As
such, summary judgment is denied on Ferguson’s Count III.
D. Count IV – Malicious Prosecution

56

Ferguson’s Count IV alleges that Defendants maliciously prosecuted him for the
Heitholt murder. A claim for malicious prosecution in Missouri requires proof of “(1) the
commencement of a prosecution against the plaintiff; (2) instigation by the defendant; (3)
termination of the proceeding in favor of the plaintiff; (4) the want of probable cause for
the prosecution; (5) [that] the defendant’s conduct was actuated by malice [;] and (6) that
the plaintiff was damaged.” Cassady v. Dillard Dept. Stores, 167 F.3d 1215, 1219 (8th
Cir. 1999) (quoting Bramon v. U-Haul, Inc., 945 S.W.2d 676, 684 (Mo. Ct. App. 1997)).
Defendants argue that they are entitled to summary judgment because Ferguson’s
grand jury indictment amounts to a prima facie showing that probable cause existed for
the prosecution. Under Missouri law,
If a charge is initiated by indictment by a grand jury . . . [this]
amounts to a prima facie showing that probable cause did exist for
the prosecution. Moad v. Pioneer Finance Co., 496 S.W.2d 794,
798 (Mo. 1973); Hamilton v. Krey Packing Co., 602 S.W.3d 879,
882 (Mo. App. 1980). The prima facie showing is conclusive unless
rebutted by evidence that false testimony was the basis of the charge
and the falsity was discoverable upon reasonable investigation.
Moad, 496 S.W. 2d at 799; Lipari v. Volume Shoe Corp., 664
S.W.2d 953, 954 (Mo. App. 1983); Hamilton, 602 S.W.2d at 882.
Anton v. Police Retirement System of St. Louis, 925 S.W.2d 900, 905 (Mo. Ct. App.
1996). Probable cause must exist to support the prosecution from the outset, as well as
throughout the course of the prosecution.
Though Ferguson was indicted by a grand jury, he argues that the reports and
observations given by Defendants to Judge Crane, the prosecutor, contained fabricated
evidence. Judge Crane stated that in deciding to instigate the prosecution, he relied on
the Probable Cause Statement which set out a brief set of facts from Defendants’
57

investigation. [Ex. 12, at p. 8-9 (Doc. 239, p. 9-10)]. Judge Crane may have also
reviewed the videotaped interview of Erickson and Dallas Mallory’s statements. Id. at 812. As the Court discussed supra at Part II.B.1.b, factual disputes exist as to whether
Defendants intentionally manufactured false evidence that was a component of what
Judge Crane reviewed in initiating the prosecution. If Ferguson were to prevail on his
fabrication claim, he would be able to overcome the presumption afforded by the grand
jury indictment. Defendants do not argue that independent probable cause existed to
support the prosecution beyond the evidence Ferguson claims was fabricated. Absent
argument to this effect, factual disputes exist which preclude the Court from determining
at this juncture whether probable cause existed to support Ferguson’s prosecution.8
Defendants further argue that they are entitled to official immunity for the
discretionary functions performed in interviewing witnesses, writing reports, and
submitting the reports to Judge Crane. However, officers are not entitled to official
immunity for discretionary acts done in bad faith or with malice. State ex rel. Twiehaus
v. Adolf, 706 S.W.2d 443, 446 (Mo. banc 1986). As discussed supra, Ferguson has
presented sufficient evidence to create a genuine issue of material fact regarding
Defendants’ state of mind in compiling the case against Ferguson.
Lastly, Defendants contend that the prosecution was instigated by Judge Crane and
not Defendants.

“‘To impose liability on a defendant for malicious prosecution,

8

Defendants repeat arguments about the Missouri Court of Appeals’ failure to conclude
that there was a lack of probable cause to support Ferguson’s prosecution. However,
there is no need for any court to have concluded prior to this point that probable cause
was lacking in order for Ferguson to maintain his claim. As Ferguson’s conviction has
been vacated, he may pursue his malicious prosecution claim.
58

defendant must advise, encourage, pressure, or cause the institution of the prosecution.’”
Fisher v. Wal-Mart Stores, Inc., 619 F.3d 811, 823 (8th Cir. 2010) (quoting Schumer v.
Craig Distrib. Co., 745 S.W.2d 163, 165 (Mo. Ct. App. 1987)); see also Burnett v.
Griffith, 769 S.W.2d 780, 784 (Mo. banc 1989) (“Instigation requires proof that the
defendant stimulated, promoted or encouraged the specific action taken.”). While the
Defendant Officers were not responsible for pursuing the prosecution of Ferguson in
court, the notes from their investigation were undoubtedly instrumental in Judge Crane’s
prosecution of Ferguson. This support of the prosecution is sufficient for Ferguson to
maintain his malicious prosecution claim against Defendants in relation to this element.
E. Count V – Conspiracy
Ferguson’s next count alleges that Defendant Officers were engaged in a
conspiracy. In order to bring a successful claim for conspiracy, Ferguson must prove (1)
that the Defendants conspired to deprive him of a constitutional right, (2) that at least one
of the alleged co-conspirators engaged in an overt act in furtherance of the conspiracy,
and (3) that he was injured by the overt act. Askew v. Millerd, 191 F.3d 953, 957 (8th Cir.
1999). Ferguson is also required to prove that he was deprived of a constitutional right or
privilege. Id. As discussed above at length, Ferguson has presented sufficient evidence
to create a question of fact as to whether Defendants violated his constitutional rights.
The only remaining question in relation to the conspiracy claim, then, is whether
Ferguson has presented adequate evidence to suggest that a conspiracy existed. “In order
to prove the existence of a conspiracy . . . [Ferguson] ‘must allege with particularly and
specifically demonstrate with material facts that the defendants reached an agreement.’”
59

Larson by Larson v. Miller, 76 F.3d 1446, 1458 (8th Cir. 1996) (quoting City of Omaha
Employees Betterment Ass’n v. City of Omaha, 883 F.3d 650, 652 (8th Cir. 1989)).
However, “the elements of a conspiracy are rarely established through means other than
circumstantial evidence, and summary judgment is only warranted when ‘the evidence is
so onesided as to leave no room for any reasonable difference of opinion as to how the
case should be decided.’” Westborough Mall, Inc. v. City of Cape Girardeau, Mo., 693
F.2d 733, 743 (8th Cir. 1982) (citations omitted).
Ferguson argues that there is ample evidence in the record to suggest that
Defendants engaged in a conspiracy. During the investigation of the Heitholt murder,
Sergeant Monticelli would hold meetings with the investigating officers where the
investigation would be discussed and lead cards would be generated. [Ex. HH, at p. 11014 (Doc. 214-4, at p. 110-14)]. Many of the investigating officers completed interviews
in tandem.

Ferguson argues that these interviews often utilized coercive tactics or

resulted in fabricated reports. The record also reveals a pattern of officers interviewing
suspects and failing to complete reports regarding the content of the interviews. See
Ferguson v. Dormire, 413 S.W.3d 40, 67, 69 (Mo. Ct. App. 2013) (describing at least two
instances where officers conducted interviews in the case without completing a
corresponding report). While this evidence of conspiracy is circumstantial, it is sufficient
to create a submissible question regarding whether Defendants engaged in a conspiracy to
deprive Ferguson of his constitutional rights. Summary judgment is denied on Count V.
F. Count VII – False Arrest

60

Finally, Ferguson argues that Defendant Officers falsely arrested him for the
Heitholt murder.

A false arrest occurs when there is confinement without legal

justification. Day v. Wells Fargo Guard Service Co., 711 S.W.2d 503, 504 (Mo. 1986);
Ivy v. Wal-Mart Stores, Inc., 777 S.W.2d 682, 683 (Mo. Ct. App. 1989). Ferguson
contends that the probable cause for his arrest was fabricated. As noted above in Part
II.D, there is a factual dispute as to whether the evidence used to constitute probable
cause was fabricated. There are also factual disputes that exist as to the state of mind of
the Defendants. As such, there can be no summary judgment awarded on this claim.
Defendants also argue that as Ferguson was arrested by the Kansas City Police
Department, they cannot be liable for false arrest. However, “[l]iability attaches where it
be shown that the defendant instigated, caused or procured the arrest.” Id. at 684; see
also Rustici v. Weidemeyer, 673 S.W.2d 762, 767 (Mo. banc 1984) (“A person may also
be liable for false arrest if he does not actually confine the plaintiff but merely instigates
it, as in the case of providing information on the basis of which a subsequent unlawful
arrest is made.”). Here, Defendant Officers informed the Kansas City Police Department
that Ferguson needed to be arrested. As they helped cause the arrest, they are not
insulated from a false arrest claim.
III.

Conclusion
For the reasons set forth above, summary judgment is granted for Defendants on

Ferguson’s Count I and the Richard Walker evidence in Count II. Defendants’ motion is
denied on the remainder of Ferguson’s claims. This order addresses only the parties’

61

arguments raised in the summary judgment motion and does not affect the overall
admissibility of evidence at trial, which may be relevant to multiple claims in the lawsuit.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: August 14, 2015
Jefferson City, Missouri

62