Ferguson v. Short et al
ORDER entered by Judge Nanette Laughrey. The Eighth Circuit requested this Court to clarify its order, Doc. 272 , denying in part Defendants' motion for summary judgment, Doc. 201 . The Court now explicitly rules that Defendants are not entitled to qualified immunity on Counts II, III, IV, V, and VII. (Specker, Suzanne)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
JOHN SHORT, et al.,
The Eighth Circuit has requested this Court to clarify its order [Doc 272] denying
in part Defendants’ motion for summary judgment [Doc. 201]. Specifically, the Court is
to state whether qualified immunity should or should not be granted. The Eighth Circuit
[T]he district court of course can decide as a preliminary matter whether the
detectives discussed the issue of qualified immunity in sufficient detail and
with sufficient citations to undisputed record evidence to enable the district
court to rule on the matter. . . . If it determines that the detectives did so, the
district court can then enter an explicit order and judgment on the matter
one way or the other.
The Court now explicitly rules that Defendants are not entitled to qualified
immunity on Counts II – V and VII. Count I is not on appeal because the Motion
for Summary Judgment was granted in Defendants’ favor on Count I.
This case arose out of the 2001 murder of Kent Heitholt, a sports editor for the
Columbia Daily Tribune. In 2004, Plaintiff Ryan Ferguson was convicted of the murder
and sentenced to forty years in prison. His friend, Charles Erickson, testified against
Ferguson after pleading guilty himself for participating in the Heitholt murder.
Erickson’s remains in jail and his guilty plea has not been set aside, however, he has
recanted the testimony he gave implicating Ryan Ferguson in the Heitholt murde r.
During the investigation there were also statements from Dallas Mallory, Megan Arthur
and Richard Walker. Mallory and Arthur have now recanted or challenged some or all of
their previous statements.
Many years after Ferguson’s conviction and incarceration, the Missouri Court of
Appeals vacated Ferguson’s sentence due to a Brady violation. Subsequently, Ferguson
filed 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.
Defendants’ Motion for Summary Judgment [Doc. 201] and their Suggestions in
Support [Doc. 202] request qualified immunity on all counts. This is demonstrated by
Subpart V,A of their Suggestions, which explicitly lists the legal argument being raised
by Defendants. [Doc. 202, p. 116]. The only legal argument identified is “Qualified
The Court incorporates by reference the Undisputed Fact section of its Order of August
14, 2015 [Doc. 272].
Subpart V,A has many further subparts whose numbering is sometimes
difficult to follow, but reviewed as a whole, Defendants requested qualified immunity as
to Counts I-V and VII, and did not request summary judgment on any other issue.
As to Counts IV & VII, Defendants are clearly not entitled to qualified immunity.
The doctrine of qualified immunity does not apply to Count IV and Count VII because
those counts raise state law claims and qualified immunity does not apply to state law
claims or to the state defense of official immunity.
As to Count V, the conspiracy claim, the Eighth Circuit has ruled that qualified
immunity was not properly raised by the following statement:
Ferguson failed to present sufficient evidence to show he was deprived of a
constitutional right or that [the detectives] reached an agreement to deprive
him of his constitutional rights.
The Court assumes that Defendants did preserve their qualified immunity argument that
there cannot be a conspiracy claim if Ferguson’s constitutional rights were not violated.
Because the Court finds below that Counts II and III survive Defendants’ motion for
summary judgment on qualified immunity, Defendants are not entitled to qualified
immunity on Count V either.
Counts II and III present a more nuanced question. As explained in Johnson v.
Jones, 515 U.S. 304 (1995), “[a] defendant, entitled to invoke a qualified immunity
defense, may not appeal a district court's summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a genuine issue of fact for trial.”
Id.at 319-320. This is because the purpose of qualified immunity is to short circuit the
litigation process at an early stage so that public entities are not subject to the costs of
unnecessary litigation. Id. at 315-317; see also Bartlett v. Fisher, 972 F.2d 911, 914 (8 th
Cir. 1992). “Even if a defendant frames an issue in terms of qualified immunity, [the
court] should determine whether he is simply arguing that the plaintiff offered
insufficient evidence to create a material issue of fact.” White v. McKinley, 519 F.3d 806,
813 (8 th Cir. 2008) (citing Thomas v. Talley, 251 F.3d 743,747 (8 th Cir. 2001)).
Thus, if a plaintiff has not presented a viable constitutional claim, qualified
immunity is appropriate. Alternatively, if a defendant public official is not on notice that
their actions constituted a violation of the Constitution, qualified immunity is appropriate.
But generally, a defendant cannot use qualified immunity to obtain a review of the
sufficiency of the evidence to prove a constitutional violation. However, in some cases a
court must make a judgment call as to whether a Defendant is just testing the quantum
and quality of facts necessary to prove a constitutional claim, or is presenting a legal
issue of qualified immunity so intertwined with the facts that they cannot be entirely
separated. Given the purpose of qualified immunity and the limitations imposed in
Johnson, this judgment call requires a court to consider how much of the record must be
reviewed to resolve the qualified immunity issue before it.
A. Count II – Substantive Due Process – Fabricated Evidence
As to Count II, the parameters of the qualified immunity analysis are rendered
more difficult because of the “kitchen sink” arguments being raised by Defendants.
Taken as a whole, however, Defendants seek qualified immunity as to Count II on the
limited question of whether there is a constitutional violation if Ferguson shows that
Defendants fabricated evidence during their investigation and questioning of Erickson,
the Defendants knew that the evidence was fabricated or unreliable, and the Defendants
used that evidence through Erickson to convict Ferguson. Defendants argue that
Ferguson cannot prove a constitutional violation of his rights under these circumstances
and even if he can, Defendants were not on notice that Ferguson could bring such a
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 (8 th Cir. 2002) (quoting Weiler v. Purkett, 137 F.3d 1047, 1051) (8 th 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
due process claim under section 1983.” Id. at 646.
A public official who deliberately fabricates evidence and uses it to frame a
criminal defendant violates the Constitution. However, “a manufactured false evidence
claim requires proof that investigators deliberately fabricated evidence in order to frame a
criminal defendant.” Winslow v. Smith, 696 F.3d 716, 732 (8 th Cir. 2012).
Defendants claim that Ferguson has failed to prove a fabrication claim because
Ferguson admits that the alleged fabricated evidence was not used to obtain his
conviction. Defendants support this argument by citing 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
Nowhere in this or the surrounding paragraphs does Ferguson admit that
fabricated evidence was not used to obtain his conviction. Rather, it is clear from the
pleadings and Ferguson’s opposition to Defendants’ Motion for Summary Judgement
[Doc. 234] that Ferguson is arguing that the Defendants knowingly used false or
unreliable evidence against Ferguson at his trial, primarily through Erickson’s testimony.
Defendants also argue that Ferguson has not stated a claim for a constitutional
violation because Erickson’s confession was never introduced into evidence against
Rather Erickson directly testified at trial against Ferguson.
therefore argue that if anyone was injured, it was Erickson and not Ferguson. As a result,
Defendants contend that Ferguson has no standing to raise his claim, and any claim he
may have is barred by the Rooker-Feldman doctrine, Heck v. Humphrey, res judicata and
While Defendants cite to Wilson v. Lawrence County, 260 F.3d 946 (8 th Cir. 2001)
to support their argument, that case actually supports 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, so Ferguson is asserting Erickson’s
rights in claiming that the confession was coerced. But Ferguson is not challenging
Erickson’s confession. Ferguson is alleging that the Defendants induced Erickson to
testify against Ferguson using falsified or unreliable information, knowing that the
evidence was unreliable. The Court therefore rejects the Defendants’ arguments as to
standing, Heck v. Humphrey, the Rooker-Feldman doctrine, collateral estoppel and res
Defendants also seem to contest the sufficiency of the evidence to show causation
because Erickson, not the Defendants, injured Ferguson. They argue that even if the
Defendants induced Erickson to fabricate evidence to obtain his confession, Erickson
thereafter had ample opportunity to determine for himself what the truth was.
Effectively, Defendants are claiming that Erickson was the superseding cause of the false
or unreliable evidence being used against Ferguson and therefore Defendants cannot be
held responsible. But Ferguson has alleged and presented some evidence that Defendants
intentionally caused Erickson to fabricate false and unreliable evidence, and under these
circumstances, a reasonable juror could conclude that it was foreseeable that the
unreliable evidence would be used against Ferguson. See Rest.3d Torts § 34 (discussing
intervening acts and superseding causes); cf. James v. Chavez, 511 Fed.Appx. 742, 749
(10 th Cir. 2013) (finding superseding cause that broke the chain of causation); see also
Whitlock v. Brueggeman, 682 F.3d 567, 583-86 (7th Cir. 2012) (discussing superseding
causation within context of a fabrication of evidence claim) (“A superseding cause is
something culpable that intervenes, some action of a third party that makes the plaintiff’s
injury an unforeseeable consequence of the defendant’s negligence.”) (internal quotations
Thus, the Court finds as a matter of law that Ferguson has stated a viable
constitutional claim based on the Defendants’ use of Erickson’s testimony to convict
Ferguson, knowing his testimony contained unreliable or fabricated evidence. Of course,
a jury may reject this claim. The jury might find the evidence is not false or unreliable,
or that the Defendants did not know it was false or that the Defendants did nothing to
induce Erickson to give unreliable evidence against Ferguson. But that does not mean
that Ferguson does not have a viable constitutional claim. As alleged, Ferguson has
shown how he has been harmed by the Defendants and why it shocks the conscience.
To go beyond this analysis and review the record in more detail runs the risk of
exceeding the parameters of qualified immunity – the only issue in front of the Court.
Given the complicated record and the many years this matter has been under
investigation, trying to resolve what evidence is disputed and whether a reasonable jury
could find falsity, knowledge, and foreseeability from evidence that is largely contested
would undermine the rule in Johnson. Nonetheless, out of an abundance of caution, the
Court incorporates by reference its opinion of August 14, 2015, pages 36 – 54 [Doc. 272]
to explain some of the reasons why summary judgment on the sufficiency of evidence
should also be denied.
Finally, Defendants argue that even if Ferguson has stated a viable constitutional
claim, Defendants were not on notice that their actions would violate the constitution and
they should therefore receive summary judgment on the second prong of qualified
immunity. Clearly, Defendants were on notice that it would be a constitutional violation
to knowingly use fabricated evidence or unreliable evidence to convict a criminal
defendant. But Defendants contend that they also had to know that falsifying evidence
through one defendant to use against another defendant was unconstitutional. Qualified
immunity, however, is intended to protect officers who do not know that they are doing
something wrong. It is not intended to protect them if they knowingly do something
wrong. Furthermore, to prove his fabrication claim, Ferguson must show that Defendants
could foresee that their actions would injure Ferguson. It would be illogical to place that
burden on Ferguson and then excuse the Defendants’ actions because they didn’t know
the Court would find them responsible for their unconstitutional conduct under
recognized common law standards.
For the foregoing reasons, the Court denies the Defendants’ qualified immunity
Motion for Summary Judgment on Count II.2
B. Substantive Due Process – Reckless Investigation
In order to succeed on a constitutional claim based on a 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 (8 th
Defendants also make a novel argument that qualified immunity should be granted as to
individual evidentiary elements of Ferguson’s claim. The Court does not understand how
qualified immunity would be logically applied to evidence as opposed to claims as
requested by the Defendants and therefore rejects the argument. This is particularly so
because a multi-factor test is applicable here, and no one factor standing alone would
likely defeat or prove a constitutional claim.
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 (8 th 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 (8 th Cir.
2008) (citations omitted). An officer’s failure to follow up on additional leads would not
in and of itself constitute a substantive due process violation. See id.
Defendants again argue that Ferguson cannot show he was injured by a
constitutional violation of Erickson’s rights. But as discussed above, Ferguson is alleging
how he was harmed by the Defendants’ investigation; he is not attempting to litigate any
constitutional claim that Erickson has. For the same reasons stated in Count II above,
Defendants are not entitled to qualified immunity because some of Ferguson’s evidence
involves actions taken by the Defendants against Erickson.
Again, the Court declines to elaborate in detail on whether there is sufficient
evidence of material, undisputed issues of fact to support the reckless investigation claim,
an inquiry it finds to be unneeded to resolve the qualified immunity issue presented by
However, the Court’s original order listed the following evidence that
The Court has not identified any place in the Defendants’ extensive briefing on Count II
or Count III where they argue that summary judgment on qualified immunity is
appropriate even if all of the evidence submitted by Ferguson is true and then explain
succinctly how Plaintiff’s version of the evidence fails to state a claim. This is an
supports Ferguson’s reckless investigation claim: 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 prosecution despite Ferguson and Erickson bearing no
physical resemblance to the individuals described by Ornt and Trump. Ferguson also
argues that Defendants’ 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.
In addition, because the Court has denied qualified immunity on Ferguson’s
fabrication claim, there is some “evidence of systematic pressure to implicate the
defendant in the face of contrary evidence.” Akins v. Epperly, 588 F.3d 1178, 1184 (8 th
The remainder of the facts alleged to constitute evidence of a reckless
investigation, while likely insufficient independently to constitute evidence of
recklessness, supports Ferguson’s reckless investigation claim in combination with the
For the reasons set forth above, Defendants’ Motion for Summary Judgment on
the issue of qualified immunity is denied on Counts II, III, IV, V, and VII.
additional reason why the Court believes that it cannot effectively parse through the
extensive record to find any missing piece at this stage of the litigation.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: January 17, 2017
Jefferson City, Missouri
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