Dean v. Gage County, Nebraska, et al

Filing 513

MEMORANDUM AND ORDER granting in part and denying in part as follows: Because it is the law of the case that there is no evidence any action taken by Richard Smith prior to the filing of criminal complaints against the plaintiffs was unconstitution al, the plaintiffs cannot claim or attempt to prove that Richard Smith conspired with any of the defendants prior to May 25, 1989, or that any defendant is liable for any action that was taken by Richard Smith prior to May 25, 1989. In all other re spects, the motion is denied. (502) Motion in Limine in case 4:09-cv-03144-RGK-CRZ; granting in part and denying in part (511) Motion in Limine in case 4:09-cv-03145-RGK-CRZ; granting in part and denying in part (498) Motion in Limine in case 4:09 -cv-03146-RGK-CRZ; granting in part and denying in part (499) Motion in Limine in case 4:09-cv-03147-RGK-CRZ; granting in part and denying in part (496) Motion in Limine in case 4:09-cv-03148-RGK-CRZ; granting in part and denying in part (362) Motion in Limine in case 4:11-cv-03099-RGK-CRZ. Member Cases: 4:09-cv-03144-RGK-CRZ et al. Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
)
)
Plaintiff,
)
v.
)
RICHARD T. SMITH, et al.,
)
Defendants.
)
LOIS P. WHITE, as Personal
)
Representative of the Estate of
)
Joseph White, deceased,
)
Plaintiff,
)
v.
COUNTY OF GAGE, NEBRASKA, et al., )
)
Defendants.
)
KATHLEEN A. GONZALEZ,
)
Plaintiff,
)
v.
)
RICHARD T. SMITH, et al.,
)
Defendants.
)
THOMAS W. WINSLOW,
)
Plaintiff,
)
v.
)
RICHARD T. SMITH, et al.,
)
Defendants.
)
ADA JOANN TAYLOR,
)
Plaintiff,
)
v.
)
RICHARD T. SMITH, et al.,
)
Defendants.
)
DEBRA SHELDEN,
)
Plaintiff,
)
v.
COUNTY OF GAGE, NEBRASKA, et al., )
)
Defendants.
JAMES L. DEAN,

4:09CV3144

4:09CV3145

4:09CV3146

4:09CV3147

4:09CV3148

4:11CV3099

MEMORANDUM AND ORDER

The defendants have filed a motion in limine to preclude the plaintiffs from
arguing or presenting evidence to prove (1) “[t]hat liability of the defendants can be
based on any activity that took place prior to January 1989 and after May 25, 1989,
the date that Plaintiff Kathleen Gonzalez was arrested in Denver, Colorado,” or (2)
“[t]hat former County Attorney Richard Smith could be a co-conspirator with the
Defendants” (Filing No. 502 at CM/ECF p. 2).1 The motion will be granted in part and
denied in part.
With respect to the first portion of the motion in limine, the defendants claim
that “[o]n January 13, 1989 defendant Burdette Searcy began investigating the sexual
assault and murder of Helen Wilson ... by interviewing Lisa Podendorf Brown,” and
“[t]he criminal investigation ended when the last plaintiff [Gonzalez] was criminally
charged on May 25, 1989” (Filing No. 503 at CM/ECF pp. 2-3). In response, the
plaintiffs state Searcey has “testified that he investigated the Wilson homicide as a
private detective in April 1985,” and “[t]he record in this matter clearly demonstrates
that nearly all of the ‘investigation’ was done after a ‘criminal complaint’ had been
filed against a plaintiff” (Filing No. 506 at CM/ECF p. 2). The defendants “do not
dispute that defendant Searcy used the knowledge he gained as a private detective in
his 1989 investigation” but state his “investigation in 1985 was not conducted under
color of state law in that he was not employed as a law enforcement officer at that
time” (Filing No. 510 at CM/ECF p. 2). The defendants’ relevancy objections to any
evidence concerning events occurring before January 13, 1989, or after May 25, 1989,
will need to be taken up at trial.
To the extent the defendants may be claiming as a matter of law that any
actions taken by them after May 25, 1989, could not have been investigatory in nature,
because all of the plaintiffs had been arrested and charged by that date, the court finds
no legal support for such a position. Furthermore, even if the investigation was

1

All references are to filings in Dean v. Smith, et al., Case No. 09-3144.
2

concluded by that date, the defendants’ alleged manufacturing of false evidence could
have continued.
With respect to the second portion of the motion in limine, the Eighth Circuit
has held “there is no evidence that any action taken by Smith prior to the filing of
criminal complaints against Plaintiffs was unconstitutional. And once the charging
documents were filed, Smith was protected by absolute immunity.” Winslow v. Smith,
696 F.3d 716, 739 (8th Cir. 2012). The defendants claim that because of this ruling,
“Smith could not have been involved in any unlawful action” and “[i]t is not possible
to use Smith’s actions ... to find that any of the defendants violated the plaintiff’s due
process rights” (Filing No. 503 at CM/ECF pp. 5-6). The court only partially agrees
with these statements. That is to say, while the court agrees that Smith could not have
been a member of an unlawful conspiracy prior to May 25, 1989, because it is the law
of the case that no action taken by Smith prior to the filing of criminal complaints
against the plaintiffs was unconstitutional,2 the court disagrees with the defendants’
contention that Smith could not have conspired with them after May 25, 1989, or
could not have committed an unlawful act as a prosecutor after that date.
Prosecutorial immunity exists under section 1983 because “it has been thought
in the end better to leave unredressed the wrongs done by dishonest officers than to
subject those who try to do their duty to the constant dread of retaliation.” Imbler v.
Pachtman, 424 U.S. 409, 428 (1976) (quoting Gregoire v. Biddle, 177 F.2d 579, 581
(2d Cir. 1949)). But absolute immunity does not extend to persons who conspire with
a prosecutor to deprive other persons of their civil rights. See Dennis v. Sparks, 449
U.S. 24, 28 (1980) (“[T]he private parties conspiring with the judge were acting under
2

“[W]hen a case has been decided by an appellate court and remanded for
further proceedings, every question decided by the appellate court, whether expressly
or by necessary implication, is finally settled and determined, and the court on remand
is bound by the decree and must carry it into execution according to the mandate.”
Thompson v. C.I.R., ___ F.3d ___, No. 15-2329, 2016 WL 1743046, at *3 (8th Cir.
May 3, 2016).
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color of state law; and it is of no consequence in this respect that the judge himself is
immune from damages liability. Immunity does not change the character of the
judge’s action or that of his co-conspirators.”); Ellis v. Kneifl, No. CV 85-L-299, 1986
WL 15945, at *1 (D. Neb. Sept. 12, 1986) (a person who has conspired with immune
public officials receives no derivative immunity).
Although none of the defendants can have derivative liability for any action
taken by Smith prior to May 25, 1989, because the Eighth Circuit has determined that
Smith’s actions prior to such date were not unconstitutional, neither the law-of-thecase doctrine nor the absolute-immunity doctrine will prevent the jury from hearing
evidence concerning actions taken by Smith after such date. Whether Smith conspired
with any of the defendants after May 25, 1989, remains to be proved, however.
Finally, the defendants argue in their supporting brief that “evidence of the
actions of former Gage County Attorney Richard Smith took as prosecutor are [sic]
unduly prejudicial and should be excluded from trial pursuant to Fed. R. Evid. 403”
(Filing No. 503 at CM/ECF p. 5). This objection fails because there is no showing of
“undue prejudice,” which, in the context of Rule 403, “means an undue tendency to
suggest decision on an improper basis, ...” Fed. R. Evid. 403, Advisory Committee
Notes to 1972 Proposed Rules. “A trial judge can and should exclude evidence when
convinced that it will create a danger of prejudice outweighing its probative value.”
Wade v. Haynes, 663 F.2d 778, 783 (8th Cir. 1981), aff’d sub nom. Smith v. Wade,
461 U.S. 30 (1983) (citing E. I. DuPont DeNemours v. Berkley & Co., Inc., 620 F.2d
1247, 1272 (8th Cir. 1980)). “However, rule 403 of the Federal Rules of Evidence
does not offer protection against evidence that is merely prejudicial in the sense of
being detrimental to a party’s case. The rule protects against evidence that is unfairly
prejudicial, that is, if it tends to suggest decision on an improper basis.” Id. (citing
Carter v. Hewitt, 617 F.2d 961, 972 (3rd Cir. 1980)). “In weighing the probative value
of evidence against the dangers and considerations enumerated in Rule 403, the
general rule is that the balance should be struck in favor of admission.” Block v. R.H.

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Macy & Co., 712 F.2d 1241, 1244 (8th Cir. 1983) (quoting United States v. Day, 591
F.2d 861, 878 (D.C.Cir. 1978)).
While the defendants may consider it unfair that they can be held liable as
co-conspirators for actions that were taken by Smith while he enjoyed absolute
immunity, that is the law. Accordingly,
IT IS ORDERED that the defendants’ motion in limine (Filing No. 502 in lead
case) is granted in part and denied in part, as follows:
1.

Because it is the law of the case that there is no evidence any action
taken by Richard Smith prior to the filing of criminal complaints against
the plaintiffs was unconstitutional, the plaintiffs cannot claim or attempt
to prove that Richard Smith conspired with any of the defendants prior
to May 25, 1989, or that any defendant is liable for any action that was
taken by Richard Smith prior to May 25, 1989.

2.

In all other respects, the motion is denied.

May 27, 2016.

BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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