Hartman v. Bowles

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JAMES HARTMAN, et al., )

)

Plaintiff(s), )

)

vs. ) Case No. 4:19-cv-02963 SRC

)

BEARY BOWLES, )

)

Defendant(s). )

MEMORANDUM AND ORDER

I. BACKGROUND

The police charged Plaintiffs, brothers James1 and Ryan Hartman, with the early-morning

shooting of a prominent fire-captain and his companion. Defendant Beary Bowles, a detective,

investigated the shooting, but as was later learned, exonerating evidence cleared the Hartmans.

The prosecution eventually dropped the charges, and the Hartmans now seek redress from

Bowles, alleging he violated the U.S. Constitution and other laws when he failed to properly

investigate, and maliciously continued to prosecute, the crime. Bowles moves to dismiss [13] on

various grounds. Portions of the motion have merit; the Court grants those portions, and denies

the remainder.

II. STANDARD

Under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6), a party may move to dismiss

a claim for “failure to state a claim upon which relief can be granted.” The notice pleading

standard of FRCP 8(a)(2) requires a plaintiff to give “a short and plain statement showing that

1 Throughout this order, the Court refers to Plaintiffs by their first names to differentiate between the two, not to

imply any familiarity.

the pleader is entitled to relief.” To meet this standard and to survive a FRCP 12(b)(6) motion to

dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotations and citation omitted). This requirement of facial plausibility means the factual

content of the plaintiff’s allegations must “allow[] the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Park Irmat Drug Corp. v. Express Scripts

Holding Co., 911 F.3d 505, 512 (8th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). The Court

must grant all reasonable inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619

F.3d 867, 872-73 (8th Cir. 2010). Ordinarily, only the facts alleged in the complaint are

considered for purposes of a motion to dismiss; however, materials attached to the complaint

may also be considered in construing its sufficiency. Reynolds v. Dormire, 636 F.3d 976, 979

(8th Cir. 2011).

When ruling on a motion to dismiss, a court “must liberally construe a complaint in favor

of the plaintiff[.]” Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir.

2010). However, if a claim fails to allege one of the elements necessary to recover on a legal

theory, the Court must dismiss that claim for failure to state a claim upon which relief can be

granted. Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). Threadbare recitals of

a cause of action, supported by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at

678; Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all

factual allegations as true, they are not bound to take as true a legal conclusion couched as a

factual allegation. Twombly, 550 U.S. at 555 (internal quotations and citation omitted); Iqbal,

556 U.S. at 677-78.

III. FACTS

For purposes of these Motions to Dismiss, the Court accepts as true the following facts

alleged in the Hartmans’ Amended Complaint. Great Rivers Habitat Alliance v. Fed. Emergency

Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010). On the evening of February 7, 2017, Super

Bowl Sunday, James and Ryan, brothers, went out for the evening. As shown on surveillance

video, at approximately 12:23 a.m. on February 8, 2017,2 James’s car, a slate gray Infiniti sedan,

entered the Phillips 66 gas station located at the southeast corner of the intersection of South

Seventh Street and Russell. James went into the convenience store and purchased cigarettes. A

few minutes later, James came out, got back in his car. In the video, James appears relaxed and

“is in every way acting like a normal citizen going about his life.” These facts have been known

to Bowles, a detective with the St. Louis Metropolitan Police Department, at all relevant times.

The City maintains an outdoor camera system which generates “real crime time” records

and its police dispatch system which generates time records; both are reliable indicators of exact

time. Bowles had the real crime time records and the dispatch time records related to this case at

all relevant times.

As shown on the real crime time records, at 12:30:17 a.m., James’s car exited the gas

station onto eastbound Russell and then made a right turn onto southbound Seventh Street. A

few minutes before James left the gas station, a St. Louis City fire captain stopped his car on the

right shoulder of southbound Seventh Street in the 2500 block, between Sidney Street and

Victor, approximately 180 feet south of Victor. This is approximately .4 miles, or six blocks,

south of the gas station. There are no stop lights between the gas station and the spot where the

2 The Amended Complaint states on February 6, 2017. The Court assumes this is a typographical error. The

remainder of the Amended Complaint makes clear that the events occurred on February 8, 2017.

fire captain stopped his car. The fire captain had a female passenger in the front passenger seat

of the car.

At exactly 12:32:45, a citizen living in the area called 911 to report shots fired. “If one

assumes a minimum of 5 seconds for a witness to hear shots, process the information in his

mind, and then call 911, then the latest time the shots could have been fired was 12:32:40.” The

difference between the time the Hartmans left the gas station, 12:30:17, and the latest possible

time the shots could have been fired, 12:32:40, is two minutes and 23 seconds, or 143 seconds.

At 12:34:46, the fire captain called 911 and reported that someone had shot him and his

passenger. During the 911 call, the fire captain described the shooter as “black male, hoodie.”

The morning after the shooting, Bowles’s supervisor assigned him as the lead

investigator of the shooting. Bowles responded to the scene at approximately 8:00 a.m. and

began canvassing the area for businesses that may have surveillance videos. Bowles obtained,

and observed, at least four surveillance videos from Production Steel, located at the time at the

northwest corner of Seventh Street and Victor, in the block immediately north of the shooting.

The time stamp records on these videos indicate the events start at 00:10:15, that is 10 minutes,

15 seconds after midnight. “Based on the various more accurate times of various clocks, it is a

reasonable assumption that the Production Steel camera timer had ‘drifted’ behind by

approximately 10 minutes from real time, and therefore the Production Steel video is useful only

for the purpose of determining the amount of time elapsing during the events portrayed, and not

for the purpose of determining the accurate time of events.” Bowles has no documentation of

any effort to determine the exact amount of drift in the Production Steel camera system.

The surveillance videos from Production Steel showed a vehicle appeared on Ninth

Street, just north of Victor, with its headlights on with a time stamp of 00:10:15. The vehicle

travels a short distance northbound. At 00:10:23, it turns right, eastbound, onto Victor. It turns

out its headlights and drives eastbound for ten seconds. At 00:10:34, the vehicle slowly comes to

a stop, just before Seventh Street. A person exits the passenger side of the vehicle at 00:10:38

and walks back and forth on the sidewalk, near the car, for 18 seconds. The person walks out of

sight southbound on Seventh Street. After 1 minute and 34 seconds, the person reappears

running northbound on Seventh Street. The person turns to his left onto the southern sidewalk of

Victor, quickly moving westbound towards the vehicle. At 00:12:34, he gets back in the

passenger side of the vehicle.

Nine seconds later, the car travels in reverse on westbound Victor to Ninth Street at a

high rate of speed, with its headlights off. At Ninth Street, the vehicle makes a “T-turn”

backwards onto Ninth Street and begins moving forward whereupon it travels northbound on

Ninth Street until it is out of sight at 00:12:52. This vehicle appears on a different camera, a few

yards north of the prior camera, traveling northbound on Ninth Street at a high rate of speed with

its headlights off. The vehicle turns westbound on Barton, one block north of Victor, turns on its

headlights, and goes out of view at 00:13:03.

Bowles also obtained surveillance video from Anheuser-Busch, located a few blocks

south of Sidney Street. Bowles testified in his deposition that the Anheuser-Busch video shows a

car traveled southbound on Seventh Street between Victor and Sidney, it paused for a few

seconds, and then turned right on westbound Sidney. In his police report, Bowles wrote that

when he watched the video, “I observed what appeared to be headlights of the vehicle just

outside of camera view north of the intersection and paused in the street.” He also wrote that he

“saw the car stop at the same location where the victims were shot,” and then it turned right, a

couple of minutes before the shooting. The Anheuser-Busch videos show nothing meaningful

about the movement of that car.” At all relevant times, Bowles believed the person in the vehicle

in the Production Steel videos and the vehicle in the Anheuser-Busch video was the true shooter.

At some unknown time, a citizen residing on Ninth Street between Victor and Barton

called 911 to report that he heard gun shots and saw a car engaged in suspicious activity. The

prosecution never produced the tape of this call during the Hartmans’ criminal case. In his

police report, Bowles stated the 911 caller described the car as a “newer blue, model Chrysler

200 or blue compact vehicle.” Bowles also stated that Detective Nicholas Shelton thought the

vehicle in the Anheuser-Busch video “looked like a blue Chrysler 200.” At 12:46:15, the

dispatch operator broadcast over the police radio network that the car was a “navy Chrysler 200.”

In a later interview, according to Bowles, the 911 caller stated the car traveled rapidly

north on south Ninth Street with no headlights on, turned its headlights on as it approached

Barton, and turned left, or west, onto Barton. Bowles stated in his deposition that the 911 caller

said the car might be an Infiniti. In his police report, Bowles wrote that the car was “possibly a

Toyota or Infinity, both of which are made by the same manufacturer.” Infiniti is a luxury car

division of Nissan, and Nissan is a different manufacturer than Toyota.

In response to the fire captain’s 911 call, police and EMT personnel arrived at the scene,

including Officers Eric Paul and Kevin Ryan. Officer Paul wrote the initial police report and

stated that at the scene, the fire captain described the shooter as a “black male wearing a black

hoodie.” At 12:48:24, Officer Paul reported this description of the suspect over the police radio

network. At 12:49:26, dispatch broadcasted another description of the suspect as a “black male

wearing a black hoodie running north with a gun.” At the scene, the fire captain’s passenger

could not make a statement due to her medical condition.

In his deposition, the fire captain stated that after the shooting, he got out of his car and

saw the shooter running northbound on Seventh Street. The shooter tripped and fell to the

ground and then immediately got back up and continued running north. The fire captain stated

the shooter wore baggy clothes, but he could not remember the shooter’s race. In later

interviews with Bowles, he told Bowles he could not remember the shooter’s race. In his

deposition, the fire captain also stated that Bowles only showed him photos of the Hartmans.

The fire captain testified he did not give a description of the shooter to the grand jury. Nothing

in the record indicates that the fire captain said anything about baggy clothes while at the scene.

Bowles wrote in his police report that, at the hospital, the fire captain stated the shooter wore

“baggy clothes.”

Officer Bradley Summers interviewed the fire captain at the hospital and later informed

Officer Paul of the conversation. According to Officer Paul’s report, the fire captain told Officer

Summers he first observed the black male wearing the black hoodie “walk south on the adjacent

sidewalk passing his location. A brief time later, he observed the same black male, suspect #1,

standing near the front passenger’s side display a handgun and fire several rounds into his

vehicle. He then observed suspect #1 run north in the 2500 block of [Seventh] Street on the

sidewalk until out of sight.”

The Hartmans are Caucasians and “they have skin color commonly which is referred to

as ‘white.’” The gas station surveillance video from the night in question, along with a separate

gas station video taken two hours later, show neither Ryan nor James was wearing a black

hoodie or baggy clothes. Bowles never spoke to Officer Paul before his deposition in this case,

which took place 18 months after the shooting. On inference, Bowles never spoke to Officer

Ryan, the other officer who first responded to the scene, either. At his deposition, Bowles

testified that the fire captain was “not certain” about the skin color of the shooter during their

conversation at the hospital the morning after the shooting. He further testified that the fire

captain believed the shooter was a black male only because he had on baggy pants, the “sort of

clothing worn by black people,” and because of his “body type.”

Bowles did not put this conversation with the fire captain in his report. The fire captain

testified in his deposition that he did not recall what he told Bowles about the identity of the

shooter. Bowles testified in his deposition that his conversation with the fire captain in the

hospital was tainted because the fire captain was sedated. Before his deposition, Bowles never

listened to the 911 call tapes. Officer Summers testified in his deposition that Bowles had never

spoken to him directly about his interview of the fire captain at the hospital.

Bowles testified in his deposition that a month after the shooting, he presented the fire

captain with photo line-ups that only included the Hartmans and the fire captain did not

recognize either one. Later in his deposition, after being confronted with the fact that this

violated department policy, Bowles testified he presented the fire captain with a complete photo

line-up.

The Hartmans infer that Bowles felt pressure to identify a shooter because the fire captain

was a prominent member of the community. Bowles identified James as a possible suspect

through gas station credit card records and car ownership records. “Bowles decided to give up

on finding the black male who really did commit the crime and instead elected to just charge

some persons who conveniently happened to be at a nearby gas station at generally the same time

and who were driving a close in color sedan. Those persons were Plaintiffs.”

According to the Complaint, the only way for Bowles’s theory that either James or Ryan

shot the fire captain to be correct is for a series of events to have occurred after they left the gas

station at 12:30:17 and before the shooting at 12:32:40, a span of 2 minutes and 23 seconds.

Doc. 10-1, pgs. 14-15. For the purposes of judicial economy, the Court refers to the Complaint

for the list of events. Based on the timing of the events that did occur, the Hartmans allege no

reasonable officer would believe the Hartmans committed the crime because not enough time

existed from the time they left the gas station to the time of the shooting for them to do so.

Bowles never reviewed or developed a theory of any motive the Hartmans had to commit the

crime, nor does he mention motive anywhere in his investigatory materials.

During Ryan’s arrest, officers found a 9mm gun in his possession. Ballistics evidence

demonstrated that this gun was not the gun used to shoot the fire captain and his passenger.

Bowles failed to investigate or consider the impact of this evidence. In October 2017, nine

months after the shooting, police responded to a shooting in north St. Louis and found shell

casings. Forensic analysis revealed the shell casings were from the same gun involved in this

shooting. Bowles knew that the same gun had been used in both incidents through NIBIN, a

police internal notification network system. Bowles failed to investigate or consider the impact

of this evidence. Despite knowledge of this evidence, Bowles did nothing to get the charges

dropped or the Hartmans released.

At the beginning of March, Bowles signed a search warrant application and an affidavit

in support to search James’s then residence. A judge signed both the application and search

warrant. In his affidavit Bowles wrote, “Victim described a male running north from the crime

scene wearing baggy clothes and grey (sic) hoodie.” He did not include that the victim described

the shooter as a black male. He also wrote, “Witness Antonio Perry stated he observed a new

model vehicle fleeing the area after hearing the shots fired. The Infiniti was observed on

surveillance camera footage in the area prior to the shooting.” Bowles further wrote, “Perry

positively identified the Infinity as the vehicle he had observed fleeing the area after to (sic) the

shooting.” He did not include that in his original 911 call, Perry described the car as a Chrysler

200, nor did he include that Officer Shelton, after a review of surveillance video, described the

car as a Chrysler 200.

Bowles did not include in his affidavit any of the following information: the victim

described the shooter as wearing a hoodie and surveillance videos show neither Hartman wore a

hoodie; there was not enough time for the Hartmans to have committed the crime;3 and the true

shooter’s gun was used in another crime while the Hartmans remained on house arrest.4 On the

same day, Bowles also signed a search warrant application and affidavit in support to search

Ryan’s then residence, his parents’ home. This search warrant and application lacked the same

omissions. A judge signed the application and search warrant.

Shortly thereafter, Bowles and other officers conducted a SWAT raid to execute the

search warrant at James’s residence. During the execution of the search warrant, the officers

found James in possession of controlled substances. As a result, James faced drug charges.

Bowles and other officers then conducted a SWAT raid at Ryan’s residence, his parents’ house,

to execute the search warrant. Officers found no incriminating evidence at this location.

One day later, in support of an information charging James with the shooting and for an

application for James’s arrest, Bowles signed a probable cause statement against James. It stated

Bowles had “probable cause to believe that James [James] Hartman, a White Male, DOB;

3 While the Court accepts as true that Bowles did not include this statement in his affidavit, the Court does not

accept as true that there was not enough time for the Hartmans to have committed a crime because it is a conclusion

not well-supported by the other facts alleged in the Complaint.

4 While the Court accepts as true that Bowles did not include that the shooter’s gun was used in another crime while

the Hartmans remained on house arrest in his application for the search warrant, the Court also notes that the

Complaint’s other allegations, when accepted as true, establish Bowles could not have included this information in

the search warrant application because the second shooting involving the same gun did not occur until October

2017, seven months after Bowles applied for the search warrant.

5/231/93 Age, 23, committed one or more criminal offense(s): Count I: Assault 1st Degree or

Attempt[;] Count II: Armed Criminal Action[;] Count III: Assault 1st Degree or Attempt[;]

Count 4: Armed Criminal Action. For facts supporting this belief, Bowles wrote:

I was assigned as the lead Detective in the follow up investigation of a shooting

that occurred on February 6, 2017, in the area of 2500 S. 7th Street here in the City

of St. Louis. During my investigation, I learned that the victims I.S. and L.S. were

in a vehicle parked at 2500 S. 7th Street. While the victims were in the vehicle, a

blue Infinity approached the approximate location of the victims. As the Infinity

approached, the driver of the Infinity turned the lights off and continued to approach

the approximate location of the victims’ vehicle. The passenger of the Infinity then

exited the car, approached the victims’ car and shot multiple times into the vehicle.

I.S. was shot multiple times. L.S. was also shot multiple times. Both victims

sustained serious injuries and were taken to the hospital for treatment. Cellular

phone records, bank records, and multiple surveillance videos were obtained that

identify the defendant as the passenger and his brother, James Hartman, as the

driver.

On this same date, in support of the filing of an information charging Ryan with the shooting and

for an application for Ryan’s arrest, Bowles signed a probable cause statement against Ryan that

differs from James’s only in the last few phrases which are insignificant. These statements

omitted previously stated facts which allegedly exonerate the Hartmans and omitted Bowles’s

failure to follow police procedure.

That same day, law enforcement arrested Ryan and James for first degree assault and

armed criminal action. After their arrests, law enforcement subjected Ryan and James to

videotaped interrogations. James and Ryan stated after they went to the gas station, they were

hoping a friend would call to continue the evening. While they waited, they went southbound on

Seventh Street to Sidney, went westbound on Sidney for three blocks to Eleventh Street and

parked. Ryan then urinated and both James and Ryan took cocaine. The friend called and James

and Ryan drove to a nightclub, the Pepper Lounge at 2005 Locust Street, where they remained

for approximately two hours. The Pepper Lounge’s dress code, as stated on its website, did not

allow hoodies. James and Ryan denied having anything to do with the shooting.

Judges set the bond for each Hartman at $750,000.00. Neither James nor Ryan could

make bond and remained in jail. The Circuit Attorney presented the case to a grand jury and the

grand jury indicted the Hartmans. From March 3, 2017, until July 27, 2017, when the court

reduced their bonds, the Hartmans were in the City of St. Louis Justice Center on Tucker

Boulevard. After they made bond, James and Ryan remained on house arrest at their parents’

home until November 1, 2018, more than 15 months.

In July 2018, an initial trial date came up. The Assistant Circuit Attorney assigned to the

case entered nolle prosequi on the charges but immediately refiled the cases. The Hartmans

were again processed through the justice system’s intake procedures and they remained on house

arrest.

In approximately March 2019, close to the new trial date, Bowles enhanced a photo of

the vehicle in the Production Steel video. An examination of that enhanced photo determines

conclusively that the car in the photo is not an Infiniti. The Hartmans allege that Bowles could

have enhanced the Production Steel video at the beginning of the case, before filing search

warrant affidavits and probable cause statements. If he had, it would have revealed the make of

the car and the license plate number. After the Circuit Attorney knew the car in the video did not

belong to the Hartmans, the Circuit Attorney entered nolle prosequi on all charges and released

the Hartmans. They have not been subject to further charges.

III. DISCUSSION

The Hartmans assert five counts against Bowles: (1) Fourth Amendment – unlawful

searches of James’s apartment and the Hartmans’ parents’ house; (2) Fourth Amendment – initial

seizure of the person without even arguable probable cause; (3) Fourth Amendment –

unreasonable continued seizure after obtaining forensic information about gun; (4) Fourth

Amendment – unfair criminal proceedings; and (5) Missouri state law claim for malicious

prosecution. Bowles filed a motion to dismiss asserting the Hartmans’ claims fail because

Bowles had reason to believe his warrant applications established probable cause and he did

establish probable cause, and because he is entitled to qualified immunity and official immunity.

In his Motion to Dismiss, Bowles asserts five arguments for why the Court should

dismiss the Hartmans’ claims: (1) Count I fails because it was not entirely unreasonable for

Bowles to believe the search warrant applications established probable cause, because they did

establish probable cause; (2) Count II fails because Bowles had at least arguable probable cause

to arrest the Hartmans; (3) Counts III and IV, for unreasonable continued seizure and unfair

criminal proceedings, fail because Bowles had probable cause to arrest and restrain the

Hartmans; (4) Bowles is entitled to qualified immunity because his conduct comported with and

did not violate clearly established law; and (5) Count V, for malicious prosecution, fails to state a

claim because the existence of probable cause negates the actions for malicious prosecution.

A. Count I – Unlawful Searches

In his first argument, Bowles asserts Count I fails to state a claim because Bowles had

probable cause to search the Hartmans’ residences.

Generally, “a warrant confers a ‘shield of immunity’ to officers acting within the scope of

its authority.” Kiesling v. Holladay, 859 F.3d 529, 533 (8th Cir. 2017) (quoting Messerschmidt

v. Millender, 565 U.S. 535, 546-48 (2012)). “The fact that a neutral magistrate has issued a

warrant is the clearest indication that the officers acted in an objectively reasonable manner.” Id.

The exception is when the warrant is “based on an affidavit so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable.” Id. The question is not

whether a warrant application was sufficient to establish probable cause of criminal activity. Id.

at 534. Instead, the Court must ask “whether it was entirely unreasonable for an officer to

believe that the warrant application established probable cause.” Kiesling v. Holladay, 859 F.3d

529, 534 (8th Cir. 2017). A search warrant may be invalid if “the issuing judge’s probable cause

determination was based on an affidavit containing false or omitted statements made knowingly

and intentionally or with reckless disregard for the truth.” United States v. Conant, 799 F.3d

1195, 1199 (8th Cir. 2015).

The Hartmans allege that Bowles omitted material, exculpatory evidence from his

affidavits and if he had included the evidence, a neutral and detached magistrate would not have

objectively found probable cause for the warrant to issue. Specifically, they assert Bowles

omitted that the shooter was black and they are white, that the shooter wore a hoodie and baggy

pants and they did not, that the shooter drove a blue Chrysler 200 and they drove a slate gray

Infiniti, and that the time in the video evidence makes it objectively unreasonable that the

Hartmans’ vehicle could have been at the scene of the shooting.

Taking the Hartmans’ allegations as true, it was not entirely unreasonable for Bowles to

believe his warrant application established probable cause and to omit the evidence they argue

should have been included. Some of these allegedly material facts can easily be explained away.

For example, the Hartmans could have changed their clothes throughout the night, putting on or

removing baggy pants and hoodies. Thus, Bowles did not act unreasonably in excluding them

from his warrant application. The warrant application is not “so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable.” Kiesling, 859 F.3d at

533. The Court dismisses Count I for failure to state a claim.

B. Count II – Initial Seizure without Probable Cause

Bowles argues the Hartmans fail to state a claim in Count II, a Fourth Amendment claim

for arrest without probable cause, because Bowles had arguable probable cause to arrest Ryan

and James.

“The Fourth Amendment right to be free from unreasonable searches and seizures

requires that arrests be based on probable cause.” Williams v. City of Alexander, 772 F.3d 1307,

1310 (8th Cir. 2014). “Probable cause exists if ‘the totality of facts based on reasonably

trustworthy information would justify a prudent person in believing the individual arrested had

committed . . . an offense.’” Id. (quoting Flynn v. Brown, 395 F.3d 842, 844 (8th Cir. 2005)).

When the arrest is pursuant to a warrant, similar to searches pursuant to a warrant, “the fact that a

neutral magistrate has issued a warrant is the clearest indication that the officers acted in an

objectively reasonable manner.” “But when a police officer deliberately or recklessly makes

false statements to demonstrate probable cause for an arrest warrant, the warrant may be

invalidated under Franks v. Delaware, 438 U.S. 154 [] (1978).” Id. at 1311.

In a case alleging omission of facts from an affidavit in support of an arrest warrant, the

warrant may be invalid if “(1) [] the police omitted facts with the intent to make, or in reckless

disregard of whether they thereby made, the affidavit misleading” and (2) adding the omitted

information would negate the finding of probable cause. United States v. Reivich, 793 F.2d 957,

961 (8th Cir. 1986). Recklessness may be inferred from the fact of omission of information from

an affidavit if the omitted material would have been clearly critical to the finding of probable

cause.” Id. “An officer may be liable for an unlawful arrest despite a magistrate’s authorization

where ‘a reasonably well-trained officer . . . would have known that his affidavit failed to

establish probable cause and that he should not have applied for the warrant.’” Small v.

McCrystal, 708 F.3d 997, 1006 (8th Cir. 2013) (quoting Malley v. Briggs, 475 U.S. 335, 344-45

& n.7 (1986)).

Bowles seeks to apply a different standard in his arguments. He asserts that an officer is

entitled to qualified immunity if there is at least arguable probable cause for the arrest. This

standard applies when an officer is making a warrantless arrest. See Borgman v. Kedley, 646

F.3d 518, 522-23 (8th Cir. 2011) (“a warrantless arrest is consistent with the Fourth Amendment

if it is supported by probable cause, and the officer is entitled to qualified immunity if there is at

least arguable probable cause.”) (emphasis added). In Dowell v. Lincoln County, Missouri, the

Eighth Circuit applies this standard in a situation where the arrest was made pursuant to a

warrant. 762 F.3d 770, 777 (8th Cir. 2014). However, in other cases the Court reviewed, where

an officer made an arrest pursuant to a warrant, the Eighth Circuit made no mention of the

arguable probable cause standard. See Williams, 772 F.3d at 1310-11; Small, 708 F.3d at 1006.

The cases cited to in Dowell involve warrantless arrests. McCabe v. Parker, 608 F.3d 1068,

1072 (8th Cir. 2010); Small, 708 F.3d at 1003.5 Consequently, the Court applies the standard as

outlined in Williams.

The Hartmans argue Bowles omitted the same material facts from his arrest warrant

affidavits as he did from his search warrant affidavit with one addition. They assert, for the

arrest warrants, Bowles omitted the fact that ballistics testing showed that the gun seized in the

search of Ryan’s residence was not the gun used in the shooting. Based on the Hartmans’ own

allegations, Bowles could not have included this evidence in his affidavit because he did not

know it at the time. The Amended Complaint alleges that during Ryan’s arrest, a gun was found

in his possession, and that ballistics evidence later demonstrated was not the gun used by the

5 Small involves several different arrests, some warrantless and some pursuant to arrest warrants. The section of the

opinion cited to here relates to the warrantless arrest at issue in the case.

shooter. Doc. 10-1, ¶¶ 105, 106. Bowles did not learn of the ballistics evidence until after he

arrested Ryan, which is necessarily after he applied for the arrest warrant.

Even if Bowles had included the omitted information in his arrest warrant affidavit, he

still had probable cause to believe the Hartmans shot the fire captain. A witness described the

vehicle fleeing the area as a dark-colored sedan, possibly an Infiniti. Video from the gas station

and credit card records show the Hartmans in the area of the shooting and driving a dark-colored

Infiniti. Based on the allegations, a reasonably well-trained officer would not have known that

his affidavit failed to establish probable cause and that he should not have applied for an arrest

warrant. Small, 708 F.3d at 1006.

C. Counts III & IV – Unreasonable Continued Seizure and Unfair Criminal

Proceedings

Next, Bowles argues Counts III and IV of the Hartmans’ Amended Complaint, the claims

for unreasonable continued seizure and unfair criminal proceedings, fail because there was

probable cause to arrest and restrain the Hartmans. Bowles claims that the existence of probable

cause negates any § 1983 Fourth Amendment claim premised on an allegedly unreasonable pre-

trial restraint.

“Any deprivation of liberty before a criminal trial is governed by the Fourth Amendment

and its prohibition on unreasonable seizures.” Johnson v. McCarver, 942 F.3d 405, 410-11 (8th

Cir. 2019) (citing Manuel v. City of Joliet, 137 S. Ct. 911 (2017)). “If the complaint is that a

form of legal process resulted in pretrial detention unsupported by probable cause, then the right

allegedly infringed lies in the Fourth Amendment.” Manuel, 137 S. Ct. at 919. Prior to Manuel,

these types of claims were pursued in some cases as Fourth Amendment violations, and as

Fourteenth Amendment violations in others. See Russo v. City of Bridgeport, 479 F.3d 196, 206-

09 (2d Cir. 2007) (discussing cases analyzing these claims under either the Fourth or Fourteenth

Amendments).

Bowles suggests that because he had probable cause to arrest the Hartmans, his claims for

unreasonable continued seizure and unfair criminal proceedings necessarily fail. But as the

Supreme Court has stated, “Obviously one . . . could not be detained indefinitely in the face of

repeated protests of innocence even though the warrant under which he was arrested and

detained met the standards of the Fourth Amendment.” Baker v. McCollan, 443 U.S. 137, 144

(1979). Here, the Hartmans’ Amended Complaint alleges in Count III that continued detention

of the Hartmans is a constitutional violation because Bowles did not take any steps to end the

prosecution or release the Hartmans despite his knowledge of exonerating information.

Therefore, even if probable cause existed at the time of the Hartmans’ arrests, Count III still

states a claim for a violation of the Fourth Amendment.

To the extent Counts III and IV allege the initiation of the prosecution violates the Fourth

Amendment, the Court dismisses those claims because as the Court stated above, Bowles had

probable cause to initially arrest the Hartmans. However, the remainder of the Counts as to the

continued prosecution of the Hartmans remain because they sufficiently allege that Bowles knew

of exonerating information when he learned that the gun used in this shooting was used in a

different shooting while the Hartmans were on house arrest, but took no action to end the

prosecution.

D. Qualified Immunity

Bowles asserts that he is entitled to qualified immunity for Counts I through IV. Because

the Court dismisses Counts I and II, it will only address this argument as to Counts III and IV.

Qualified immunity shields law enforcement, and other government officials, from civil liability

unless “the official’s conduct violates a clearly established constitutional or statutory right of

which a reasonable person would have known.” Rogers v. King, 885 F.3d 1118, 1121 (8th Cir.

2018) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Court asks two questions to

determine if qualified immunity applies: “(1) whether, after viewing the facts in the light most

favorable to the party asserting the injury, there was a deprivation of a constitutional right,” and

“(2) whether the right was clearly established at the time of the deprivation such that a

reasonable official would understand his conduct was unlawful in the situation he confronted.”

Vaughn v. Greene Cty., Ark., 438 F.3d 845, 850 (8th Cir. 2006). The Court may address either

question first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The Court already determined above that at this stage in the litigation, the Hartmans’

allegations sufficiently establish a deprivation of a constitutional right in portions of Counts III

and IV. The argument between the parties focuses on whether the constitutional right was

clearly established at the time of the deprivation. A reasonable officer would understand his

conduct in failing to disclose exculpatory evidence and continuing to detain and prosecute

individuals the officer knows is innocent is unlawful.

The continued deprivation of an individual’s liberty without probable cause is clearly

established. See Manuel, 137 S. Ct. at 918-919. The Supreme Court established this right long

before the Manuel case. Id. at 917-919 (discussing prior cases). In Manuel, the Supreme Court

simply clarified that any challenges to pretrial detention should be brought under the Fourth

Amendment rather than the Fourteenth Amendment. Id. It is also clearly established that an

individual also has a constitutional right to an adequate investigation. Winslow v. Smith, 696

F.3d 716, 732 (8th Cir. 2012). To be a constitutional violation, a failure to investigate must be

intentional or reckless, shocking the conscience, and purposefully ignoring evidence suggesting

the defendant’s innocence, as alleged here, qualifies. Id. Finally, since Brady v. Maryland in

1963, law enforcement and prosecutors have known they must disclose exculpatory evidence to

defendants. 373 U.S. 83, 87 (1963). A reasonable official would understand that his decision to

ignore and not disclose to anyone exculpatory evidence and to continue with the prosecution of

the Hartmans’ was unlawful. Vaughn, 438 F.3d at 850.

E. Count V – Malicious Prosecution

Bowles asserts that the Hartmans fail to state a claim for malicious prosecution under

Missouri law because the existence of probable cause negates any claim for malicious

prosecution. To establish a malicious prosecution claim, a plaintiff must show the defendant,

with malice, instigated or continued an earlier lawsuit against the plaintiff without probable

cause for the filing of the lawsuit, the lawsuit ended in the plaintiff’s favor, and damage to the

plaintiff resulted. State ex rel. O’Basuyi v. Vincent, 434 S.W.3d 517, 519 (Mo. 2014); King v.

Ryals, 981 S.W.2d 151, 154 (Mo. Ct. App. 1998) (“Among the elements of a cause of action of

malicious prosecution is that the defendant initiated (or continued) the prosecution without

probable cause.”).

Under Missouri law, the test for determining whether probable cause existed asks

“whether the facts and circumstances would warrant a belief in an ordinarily cautious person that

another had committed a crime.” Zike v. Advance Am., Cash Advance Ctrs. of Mo., Inc., 646

F.3d 504, 509 (8th Cir. 2011) (citation omitted). “It is enough for the officer to show . . . ‘merely

arguable probable cause,’ which is a mistaken, but objectively reasonable belief, that the suspect

committed a criminal offense.” Copeland v. Wicks, 468 S.W.3d 886, 891 (Mo. 2015) (quoting

Dowell v. Lincoln Cty., Mo., 762 F.3d 770, 777 (8th Cir. 2014)). Here, the Court already

determined Bowles had at least arguable probable cause to arrest the Hartmans for shooting the

fire captain. Thus, their claim for malicious prosecution fails as to the initiation of the

prosecution. Joseph v. Allen, No. 4:10CV1521 JAR, 2012 WL 1684565 at *5-6 (E.D. Mo. May

15, 2012) (citing Kurtz v. City of Shrewsbury, 245 F.3d 753, 757 (8th Cir. 2001)) T]he

existence of probable cause negates actions for... malicious prosecution in Missouri.”’).

However, their claim as to Bowles’s decision to continue the prosecution after learning the gun

used in this shooting was used in a second shooting while the Hartmans were on house arrest,

remains viable. The Court grants the Motion and dismisses part of Count V for failure to state a

claim for the Hartmans’ claim that Bowles did not have probable cause to initiate their

prosecution and denies the Motion as to the part of Count V that claims Bowles continued the

prosecution of the Hartmans without probable cause.

Accordingly,

IT IS HEREBY ORDERED that Defendant Beary Bowles’s Motion to Dismiss

Plaintiffs’ First Amended Complaint [13] is GRANTED, in part, and DENIED, in part.

So Ordered this 23rd day of June, 2020. st Pe. C CP

STEPHEN R. CLARK

UNITED STATES DISTRICT JUDGE

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