James Dean v. County of Gage

United States Court of Appeals

For the Eighth Circuit

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No. 14-1747

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James L. Dean; Lois P. White, as Personal Representative of the Estate of Joseph

White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor;

Debra Sheldon

llllllllllllll Plaintiff - Appellant

v.

County of Gage, Nebraska, a Nebraska political subdivision; Burdette Searcey,

Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official

and individual capacities; Ryan L. Timmerman, Personal Representative of the

Estate of Jerry O. DeWitt

lllllllllllllllllllll Defendants - Appellees

Richard T. Smith, in his official and individual capacities; Gerald Lamkin, Dep., in

his official and individual capacities; Gage County Attorney’s Office, a Nebraska

political subdivision; Gage County Sheriff’s Office, a Nebraska political subdivision

lllllllllllllllllllll Defendants

___________________________

No. 14-1773

___________________________

James L. Dean; Lois P. White, as Personal Representative of the Estate of Joseph

White, deceased; Kathleen A. Gonzalez; Thomas W. Winslow; Ada Joann Taylor;

Debra Sheldon

lllllllllllllllllllll Plaintiffs - Appellees

v.

County of Gage, Nebraska, a Nebraska political subdivision

lllllllllllllllllllll Defendant

Burdette Searcey, Dep., in his official and individual capacities; Wayne R. Price,

PhD., in his official and individual capacities; Ryan L. Timmerman, Personal

Representative of the Estate of Jerry O. DeWitt

lllllllllllllllllllll Defendants - Appellants

Richard T. Smith, in his official and individual capacities; Gerald Lamkin, Dep., in

his official and individual capacities; Gage County Attorney’s Office, a Nebraska

political subdivision; Gage County Sheriff’s Office, a Nebraska political subdivision

lllllllllllllllllllll Defendants

____________

Appeals from United States District Court

for the District of Nebraska - Lincoln

____________

Submitted: September 17, 2015

Filed: December 7, 2015

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Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

____________

BENTON, Circuit Judge.

DNA evidence exonerated Joseph E. White and the five other plaintiffs of rape

and murder. They sued Gage County and the officers involved in their case. After

an appeal from summary judgment and a mistrial on remand, the district court

dismissed plaintiffs’ conspiracy claim and all claims against Gage County. The

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district court denied qualified immunity to the officers. Having jurisdiction under 28

U.S.C. § 1291, this court reverses and remands the dismissal, and affirms the denial

of qualified immunity.

I.

In 1989, Joseph White was convicted for the rape and murder of Helen Wilson.

The prosecution used testimony and confessions from White’s co-defendants—Ada

JoAnn Taylor, Thomas W. Winslow, James L. Dean, Kathleen A. Gonzalez, and

Debra Shelden—all of whom pled guilty to related charges. After DNA testing in

2008, all convictions were pardoned or overturned. Plaintiffs individually filed 42

U.S.C. §§ 1983 and 1985 claims against Gage County, sheriff Jerry O. DeWitt (and

his employees Dr. Wayne R. Price and Burdette Searcey), and county attorney

Richard T. Smith, alleging Fifth and Fourteenth Amendment due process violations.

Plaintiffs claimed officers led a reckless investigation, manufactured false evidence,

conspired to manufacture evidence, and coerced testimony. On two earlier appeals

from separate summary judgments, this court determined: “evidence is sufficient to

support Plaintiffs’ claims that their rights to fair criminal proceedings were violated

as the result of a reckless investigation and Defendants’ manufacturing of false

evidence”; evidence was sufficient to support a conspiracy claim; evidence was not

sufficient to support a coercion claim; members of the sheriff’s office were not

protected by qualified immunity; and the county attorney was protected by absolute

immunity. Winslow v. Smith, 696 F.3d 716, 721, 740 (8th Cir. 2012) (reversing

summary judgment on qualified immunity and reinstating claims against Gage

County, affirming dismissal of coercion claim, and affirming dismissal of claims

against county attorney Smith based on absolute prosecutorial immunity); White v.

Smith, 696 F.3d 740, 743 (8th Cir. 2012) (affirming denial of qualified immunity,

holding sufficient evidence existed to support conspiracy claim).

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Trial of the consolidated claims began January 6, 2014. At the close of

plaintiffs’ evidence, the district court granted the Gage County and the officers’ Rule

50(a)(1) motion, dismissing the conspiracy claim against all parties and all claims

against Gage County. It denied the officers’ Rule 50(a)(2) motion for qualified

immunity on the remaining claims of manufacturing evidence and conducting a

reckless investigation. After three days of jury deliberation with no verdict, the

district court declared a mistrial and ordered a new trial. One month later, the district

court certified its Rule 50(a)(1) order under Rule 54(b) to authorize an appeal. It also

denied the officers’ renewed motion for qualified immunity, which they cross-appeal.

II.

The officers claim they are entitled to qualified immunity. “[A] district court’s

denial of a claim of qualified immunity, to the extent that it turns on an issue of law,

is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511,

530 (1985).

This court reviews the district court’s denial of a motion for judgment as a

matter of law de novo, “using the same standards as the district court.” Luckert v.

Dodge Cnty., 684 F.3d 808, 816-17 (8th Cir. 2012) (reviewing denial of Rule 50(b)

motion for qualified immunity). This court “must draw all reasonable inferences in

favor of the nonmoving party without making credibility assessments or weighing the

evidence.” Phillips v. Collings, 256 F.3d 843, 847 (8th Cir. 2001) (reviewing denial

of Rule 50(b) motion for qualified immunity).

To overcome qualified immunity, plaintiffs must demonstrate both that “(1)

there was a deprivation of a constitutional or statutory right, and (2) the right was

clearly established at the time of the deprivation.” Parker v. Chard, 777 F.3d 977,

980 (8th Cir. 2015). Since this court previously denied qualified immunity for the

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officers as a matter of law, the district court should not consider a Rule 50 motion on

qualified immunity unless substantially different evidence was produced at trial. See,

e.g., Kerman v. City of New York, 374 F.3d 93, 110 (2d Cir. 2004) (applying law-of-

the-case doctrine in appeal from Rule 50 qualified immunity decision); Oladeinde v.

City of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000) (same). See generally

Little Earth of the United Tribes, Inc. v. U.S. Dep’t of Hous. & Urban Dev., 807

F.2d 1433, 1441 (8th Cir. 1986) (“[W]e will reconsider a previously decided issue

only if substantially different evidence is subsequently introduced or the decision is

clearly erroneous and works manifest injustice.”).

The officers argue that the evidence introduced at trial varies greatly from that

identified at summary judgment. Resolving the appeal from summary judgment, this

court previously stated, “Another troubling piece of evidence is that Price offered to

serve as Dean’s therapist without initially informing Dean of his role as a law

enforcement officer. Price then told Dean that his polygraph results indicated he was

repressing memories of the crime.” White, 696 F.3d at 755. The officers claim, at

trial, they showed this was untrue. However, the record the officers cite shows only

that Price had previously told Dean’s attorney that he was a psychologist for the state

and his conversations with Dean would not be confidential. Price met with Dean in

his role as “deputy sheriff.” Price told Dean he was a police psychologist but never

explained his role to Dean or informed Dean that he was not acting as his

psychologist. After meeting with Dean several times, Price told Dean that he “failed”

his polygraph test and recommended therapy. Price recorded his belief that Dean was

present at the crime scene and was repressing memory. This slight variance does not

alleviate this court’s previous concerns or overcome the vast amount of troubling

evidence presented at trial.

The officers also claim that “the testimony by the attorneys who represented

Dean, Shelden, and Taylor all indicated that they were never informed by their clients

that the officers were doing anything that would amount to coercion or that they were

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being mistreated by the officers.” This court previously affirmed the dismissal of the

coercion claim, and the claim is not at issue in this appeal. See Winslow, 696 F.3d

at 738. The trial testimony does not support the officers’ entitlement to qualified

immunity. The district court correctly denied the renewed Rule 50 motion for

qualified immunity.

III.

A.

Before addressing the conspiracy claim and claims against Gage County, this

court is obligated to independently consider its jurisdiction. Outdoor Cent., Inc. v.

GreatLodge.com, Inc., 643 F.3d 1115, 1118 (8th Cir. 2011). It is a general rule that

only orders that dispose of all claims are final and appealable. Williams v. Cnty. of

Dakota, Neb., 687 F.3d 1064, 1067 (8th Cir. 2012).

“Rule 54(b) creates a well-established exception to this rule by allowing a

district court to enter a final judgment on some but not all of the claims in a lawsuit.”

Id. Rule 54(b) states:

When an action presents more than one claim for relief—whether as a

claim, counterclaim, crossclaim, or third-party claim—or when multiple

parties are involved, the court may direct entry of a final judgment as to

one or more, but fewer than all, claims or parties only if the court

expressly determines that there is no just reason for delay. Otherwise,

any order or other decision, however designated, that adjudicates fewer

than all the claims or the rights and liabilities of fewer than all the

parties does not end the action as to any of the claims or parties and may

be revised at any time before the entry of a judgment adjudicating all the

claims and all the parties’ rights and liabilities.

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A district court considering Rule 54(b) certification “must first determine that

it is dealing with a ‘final judgment’” that disposes of a claim. Curtiss-Wright Corp.

v. Gen. Elec. Co., 446 U.S. 1, 7 (1980). Second, “[i]n determining that there is no

just reason for delay, the district court must consider both the equities of the situation

and judicial administrative interests, particularly the interest in preventing piecemeal

appeals.” Williams, 687 F.3d at 1067 (alteration in original), quoting

Curtiss-Wright, 446 U.S. at 7.

Interlocutory appeals are “generally disfavored” and “only the special case . .

. warrants an immediate appeal from a partial resolution of the lawsuit.” Clark v.

Baka, 593 F.3d 712, 714-15 (8th Cir. 2010) (per curiam). See Hayden v. McDonald,

719 F.2d 266, 269 (8th Cir. 1983) (per curiam) (listing relevant factors in reviewing

Rule 54(b) certifications). This court must “scrutinize the district court’s evaluation

of such factors as the interrelationship of the claims so as to prevent piecemeal

appeals in cases which should be reviewed only as single units.” Curtiss-Wright, 446

U.S. at 10; Outdoor Cent., 643 F.3d at 1119. Where each claim “requires familiarity

with the same nucleus of facts and involves analysis of similar legal issues, the claims

should be resolved in a single appeal.” Outdoor Cent., 643 F.3d at 1119; Hayden,

719 F.2d at 270 (discouraging certification when claims deal “with essentially one set

of facts, with which this court would need to refamiliarize itself on subsequent

appeals”). See generally Spiegel v. Trustees of Tufts Coll., 843 F.2d 38, 45 (1st Cir.

1988) (“A similarity of either legal or factual issues (or both) militates strongly

against invocation of Rule 54(b).” (citing Solomon v. Aetna Life Ins. Co., 782 F.2d

58, 62 (6th Cir. 1986) and Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th

Cir. 1981))).

If these judicial concerns are met, this court gives the district court’s weighing

of equities substantial deference, reviewing the certification for an abuse of

discretion. Williams, 687 F.3d at 1068 (holding the district court is “most likely to

be familiar with the case and with any justifiable reasons for delay”). This court’s

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role “is not to reweigh the equities or reassess the facts but to make sure that the

conclusions derived from those weighings and assessments are juridically sound and

supported by the record.” Curtiss-Wright, 446 U.S. at 10 (“The reviewing court

should disturb the trial court’s assessment of the equities only if it can say that the

judge’s conclusion was clearly unreasonable.”). See Williams, 687 F.3d at 1067

(“Certification should be granted only if there exists some danger of hardship or

injustice through delay which would be alleviated by immediate appeal.”).

As for the first determination, the district court’s order dismissing the

conspiracy claim and all claims against Gage County was final.

As for the second determination, the district court, considering “equities of the

situation and judicial administrative interests,” ruled it was “preferable” to allow

plaintiffs to appeal after the mistrial instead of after a second trial because the record

is “fully developed . . . and the issues are fairly limited in scope,” involving questions

of law (whether plaintiffs waived their conspiracy claim and whether officers were

“policy makers”). The district court properly reasoned that an appeal from the

dismissal of the conspiracy claim was likely, and that an appeal from the county’s

dismissal was a “near certainty.”

The mistrial created the special case for an immediate appeal. This litigation

has already generated three interlocutory appeals, including this one. The district

court recognized “the large trial record and the complexity and difficulty of this

case.” Delaying the appeal until the close of another trial will add to this case’s

complexity by requiring consideration of two separate, fully developed records, and

may require yet another trial if the appeal were successful.

The certified issues on appeal are “self-contained” and an “appellate ruling

will finally resolve the sufficiency” of the claims. See Outdoor Cent., 643 F.3d at

1120. Rule 54(b) certification is appropriate.

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B.

This court reviews “de novo the grant or denial of a motion for judgment as a

matter of law, using the same standards as the trial court.” Shaw Hofstra & Assocs.

v. Ladco Dev., Inc., 673 F.3d 819, 825 (8th Cir. 2012). Reviewing the sufficiency

of the evidence, this court draws “all reasonable inferences in favor of the nonmoving

party without making credibility assessments or weighing the evidence.” Id. A Rule

50(a) motion is proper only if “a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1); Moran

v. Clarke, 296 F.3d 638, 643 (8th Cir. 2002) (“Such a ruling is appropriate only when

all the evidence points one way and is susceptible of no reasonable inferences

sustaining the position of the non-moving party.”).

1.

Plaintiffs challenge the district court’s dismissal of their conspiracy claim. The

district court held that plaintiffs “failed to preserve [their conspiracy] claim in the

final pretrial conference order” and that the evidence at trial was insufficient “to

prove the essential elements of a conspiracy claim.” After a thorough review of the

record, this court disagrees.

True, “[t]he issues identified in the Pretrial Order supersede any issues raised

in the Complaint and Amended Complaint.” Hartman v. Workman, 476 F.3d 633,

634 n.3 (8th Cir. 2007). However, the district court heard the case on remand, after

this court held that “a factfinder could determine that White’s conviction was the

result of a purposeful conspiracy by Defendants to fabricate evidence.” White, 696

F.3d at 757. (The other plaintiffs’ conspiracy claims were not at issue in prior

appeals, although their claims arise from the same facts.) Affirming the denial of

summary judgment on conspiracy, this court preserved the claim for trial. The district

court’s initial pretrial order and its reframing of issues on remand are nearly identical.

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They both include as a controverted issue whether “Defendants, or any one of them,

manufactured false evidence against a named Plaintiff.” The district court did not say

that its reframing of issues excluded the previously pled conspiracy claim. Plaintiffs

continued to argue the conspiracy issue in trial, proffering evidence (arguing hearsay

testimony was made in furtherance of a conspiracy) and submitting proposed jury

instructions on the conspiracy claim. They did not waive their conspiracy claim. The

district court improperly held that the claim was waived on remand.

“To prove a civil conspiracy under § 1983, [plaintiffs] must show (1) two or

more persons; (2) an object to be accomplished; (3) a meeting of the minds on the

object or course of action to be taken; (4) the commission of one or more unlawful

overt acts; and (5) damages as the proximate result of the conspiracy.” Livers v.

Schenck, 700 F.3d 340, 360-61 (8th Cir. 2012). “To be liable as a conspirator [one]

must be a voluntary participant in a common venture. . . . It is enough if [Defendants]

understand the general objectives of the scheme, accept them, and agree, either

explicitly or implicitly, to do [their] part to further them.” White, 696 F.3d at 757,

quoting Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.1988) (alterations and

ellipsis in original).

The evidence in support of conspiracy, viewed in favor of plaintiffs, is

substantial. At trial, plaintiffs submitted evidence that defendants: were unable to

match the blood and semen found at the crime scene; suggested to Dean, Shelden, and

Gonzalez that they had repressed their memory of the rape and murder; conducted

polygraphs, hypnosis, and recommended recall therapy to recover these blocked

memories; conducted unrecorded and unreported interrogations; disregarded

inconsistencies during interrogations; submitted affidavits without disclosing

contradictions to evidence at the crime scene; and ignored verifiable alibis. Both

sheriff DeWitt and county attorney Smith testified that they communicated frequently

and worked together during investigation up to plaintiffs’ convictions.

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Plaintiffs “produced proof of questionable procedures” and “hasty

condemnation” by officers in charge of policymaking. See Moran, 296 F.3d at 647-

48 (8th Cir. 2002) (reversing grant of Rule 50(a) motion on conspiracy claim, holding

police department “publicly and financially committed itself to producing a culprit

for an alleged wrongdoing before any such wrongdoing was actually established”).

Neither the district court nor the officers point to substantially different evidence

presented at trial that would alter this court’s previous finding on conspiracy. See

Little Earth of the United Tribes, Inc., 807 F.2d at 1441; Mosley v. City of

Northwoods, Mo., 415 F.3d 908, 911 (8th Cir. 2005) (holding law of the case “does

not deprive the district court of the ability to reconsider earlier rulings to avoid

reversal”). There was a sufficient evidentiary basis for a jury to find for plaintiffs on

their conspiracy claim. This court again concludes that “the facts viewed in the light

most favorable to White [and plaintiffs] give rise to the reasonable inference that

Defendants acted in concert with the goal of securing” plaintiffs’ convictions. See

White, 696 F.3d at 757. The district court erred in dismissing the conspiracy claim.

2.

Plaintiffs challenge the dismissal of their official-capacity claims against Gage

County. Plaintiffs argue that sheriff DeWitt and county attorney Smith “were the

final decisionmakers and sole policymakers for their respective elected county

offices,” and “their conduct in those specific areas is fairly attributed to Gage

County.” Because this court previously determined that “there is no evidence that any

action taken by Smith prior to the filing of criminal complaints against Plaintiffs was

unconstitutional,” it need not consider whether the County is liable for his actions.

See Winslow, 696 F.3d at 739.

“[A] local government is liable under § 1983 for its policies that cause

constitutional torts. These policies may be set by the government’s lawmakers, ‘or

by those whose edicts or acts may fairly be said to represent official policy.’”

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McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 784 (1997), citing Monell v. Dep’t.

of Soc. Servs., 436 U.S. 658, 694 (1978). “[T]he trial judge must identify those

officials or governmental bodies who speak with final policymaking authority for the

local governmental actor concerning the action alleged to have caused the particular

constitutional or statutory violation at issue. Once those officials who have the power

to make official policy on a particular issue have been identified, it is for the jury to

determine whether their decisions have caused the deprivation of rights at issue by

policies which affirmatively command that it occur, or by acquiescence in a

longstanding practice or custom which constitutes the ‘standard operating procedure’

of the local governmental entity.” Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 737

(1989). “An unconstitutional governmental policy can be inferred from a single

decision taken by the highest official responsible for setting policy in that area of the

government’s business.” Angarita v. St. Louis Cnty., 981 F.2d 1537, 1546 (8th Cir.

1992).

Relying on Poor Bear v. Nesbitt, 300 F.Supp.2d 904 (D. Neb. 2004), the

district court ruled that a “county sheriff acts pursuant to state-enacted restrictions in

enforcing the criminal laws of Nebraska and is not himself a policy maker for the

county for which he is a sheriff.” See Poor Bear, 300 F.Supp.2d at 917. In Buzek v.

County of Saunders, 972 F.2d 992, 995 (8th Cir. 1992), this court said that a

Nebraska sheriff had “broad discretion to set policy as the County’s elected Sheriff.”

Although in Buzek the specific policymaking authority was the “exclusive authority

to fire” a deputy, Buzek shows that a Nebraska sheriff has final policymaking

authority in certain areas. Nebraska law determines if a Nebraska sheriff has final

policymaking authority in the area of law enforcement investigations and arrests. See

Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013)

(“Whether Sanders exercised final policymaking authority for the city is ‘a question

of state law.’” (quoting St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality

opinion))). See also Pembaur v. City of Cincinatti, 475 U.S. 469, 481 (1986)

(plurality opinion) (“Municipal liability attaches only where the decisionmaker

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possesses final authority to establish municipal policy with respect to the action

ordered.”).

Sheriff DeWitt made final policy with regard to law enforcement investigations

and arrests in Gage County. “It has been the declared policy of the State of Nebraska

in the exercise of its police powers to foster and promote local control of local affairs.

Highest ranking in this hierarchy of local matters is the supervision of law

enforcement. The state provides a system of law enforcement and local officers to

carry out the functions thereof on a day-to-day basis within such system.” Neb. Rev.

Stat. § 23-2801. “It [is] the duty of the sheriff by himself or deputy to preserve the

peace in his county, to ferret out crime, to apprehend and arrest all criminals, and

insofar as it is within his power, to secure evidence of all crimes committed in his

county, and present the same to the county attorney and the grand jury; to file

informations against all persons who he knows, or has reason to believe, have

violated the laws of the state, and to perform all other duties pertaining to the office

of sheriff.” § 23-1710 (emphasis added). The sheriff has “charge and custody of the

jail, and the prisoners of the same, and is required to receive those lawfully committed

and to keep them himself or herself, or by his or her deputy jailer, until discharged by

law.” § 23-1703. Wearing a uniform and badge is “discretionary at the option of the

sheriff when he or she or his or her deputies are engaged in special investigations or

mental patient assignments.” § 23-1717. The officers do not identify a statute giving

any entity supervisory authority over the sheriff or a statute requiring a sheriff to

answer to any superior. See generally Morro v. City of Birmingham, 117 F.3d 508,

514 (11th Cir. 1997) (considering meaningful administrative review in the ability to

make policy).

In McMillian, the parties agreed that the sheriff had final policymaking

authority in the area of law enforcement, but disagreed whether the sheriff made

policies for the state or the county. This court must “simply ask whether Sheriff

[DeWitt] represents the State or the county when he acts in a law enforcement

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capacity.” McMillian, 520 U.S. at 785-86 (“[T]he question is not whether Sheriff

Tate acts for Alabama or Monroe County in some categorical, ‘all or nothing’

manner. Our cases on the liability of local governments under § 1983 instruct us to

ask whether governmental officials are final policymakers for the local government

in a particular area, or on a particular issue.” (citing Jett, 491 U.S. at 737)). Although

the Court in McMillian found Alabama sheriffs are state policymakers, “the States

have wide authority to set up their state and local governments as they wish. . . . [T]he

importance of counties and the nature of county government have varied historically

from region to region, and from State to State.” Id. at 795.

A comparison of Nebraska and Alabama law demonstrates that Nebraska

sheriffs make policy on behalf of their counties. In McMillian, the Court examined

three compelling authorities: (1) the Alabama constitution lists sheriffs as members

of the state executive branch; (2) “authority to impeach sheriffs was moved from the

county courts to the State Supreme Court,” and (3) the Alabama Supreme Court has

held that “tort claims brought against sheriffs based on their official acts . . .

constitute suits against the State, not suits against the sheriff’s county.” McMillian,

520 U.S. at 788-89. Nebraska law differs from Alabama law in each area. Neither

the Nebraska constitution nor its statutes list sheriffs as members of its executive

branch. See Neb. Const. Art. IV § 1; Neb. Rev. Stat. § 81-101. Unlike Alabama,

Nebraska district courts have authority to remove county officers, including sheriffs.

See §§ 23-2001; 77-1719.02. Finally, the Nebraska Supreme Court has held a county

liable for the negligent and intentional torts of its sheriff. See Brandon v. Cnty. of

Richardson, 261 Neb. 636, 627-28 (2001).

Other Nebraska laws indicate that sheriffs represent the county when acting in

a law enforcement capacity. A sheriff is a county officer. See Neb. Rev. Stat. §§ 23-

1114.01-1114.08 (listing sheriff’s salary under sections titled “County Officers;

Salaries”). A sheriff’s salary is set by the county board. § 23-1114. The county

provides the sheriff’s office with equipment. § 23-1715. The registered voters elect

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the county sheriff and may recall the sheriff from office. §§ 32-520, 32-1302. True,

some statutes show state influence. For example, sheriffs are required to train in the

Nebraska Law Enforcement Training Center. § 23-1701.01. Sheriffs “shall attend

upon the district court” and must “execute or serve all writs and process issued by

any county court.” §§ 23-1705, 23-1701.04. The State also empowers sheriffs to act

beyond the boundaries of their counties in some circumstances. See § 29-205

(removing absconders to county where wanted). Nowhere has the Nebraska

legislature given other county officers the authority to enact policies on criminal

investigation and arrests. See § 23-104. However, based on the McMillian factors,

Sheriff DeWitt represents the county in the area of law enforcement investigations

and arrests.

The county “may only be held liable for constitutional violations which result

from a policy or custom of the municipality.” Scheeler v. City of St. Cloud, 402 F.3d

826, 832 (8th Cir. 2005). It is for the jury to determine whether Sheriff DeWitt’s

decisions “caused the deprivation of rights at issue by policies which affirmatively

command that it occur.” Jett, 491 U.S. at 737. The district court erroneously

dismissed the claim against the county believing that “the plaintiffs failed to present

evidence of an official policy, unofficial custom, or a deliberately indifferent failure

to train or supervise that could create liability.” To the contrary, the plaintiffs

introduced evidence that Sheriff DeWitt made decisions about the investigations in

this case. For example, he was present when White was arrested and interrogated,

and watched as his deputies ignored White’s repeated requests for counsel. He was

also present at Dean’s interrogation and watched as Dean’s requests for counsel were

ignored. Sheriff DeWitt knew the Beatrice Police department believed the wrong

people were arrested and told the chief of police to stay out of investigations, and that

Sgt. Stevens was “muddying the waters.” DeWitt attended an interrogation of

Taylor, where she was systematically and intentionally coached. Dean testified that,

in plain clothes, Dr. Price met with him in Sheriff DeWitt’s office. DeWitt personally

visited defendants’ jail cells to tell them it was in their best interest to tell the truth.

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He told Gonzalez that due to death threats from the community, she would be lucky

to make it to the death penalty. It is for the jury to decide if these decisions (and

others) by Sheriff DeWitt constituted Gage County policy that caused the deprivation

of rights here. See Buzek, 972 F.2d at 996 (finding district correctly instructed jury

“that they should find the County liable if the actions of Sheriff Poskochil were the

‘official policy’ of the County” and correctly explained “that a single decision could

reflect official County policy” (citing Pembaur, 475 U.S. at 483)).

*******

The order dismissing the conspiracy claim and all claims against Gage County

is reversed, and the case remanded for further proceedings consistent with this

opinion. The order denying qualified immunity is affirmed.

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