Petition for Writ of Certiorari — Burdette Searcey, et al., Petitioners v. James L. Dean, et al.

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------COUNTY OF GAGE, ET AL.,

Petitioners,

v.

JAMES DEAN, ET AL.,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------JENNIFER M. TOMKA

AMEN LAW

P.O. Box 21855

Lincoln, NE 68542

402.525.1572

jtomka@jenamenlaw.com

PATRICK T. O’BRIEN

GALTER & O’BRIEN

311 S. 13th Street

Lincoln, NE 68502

402.475.0811

pto@neb.rr.com

ELIZABETH RYAN CANO

MELANIE J. WHITTAMORE-MANTZIOS

Counsel of Record

WOLFE, SNOWDEN, HURD, LUERS & AHL, LLP

1248 “O” Street, Suite 800

Lincoln, NE 68508

402.474.1507

ecano@wolfesnowden.com

mmantzios@wolfesnowden.com

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

After twice reversing district-court judgments for

Petitioners, the Eighth Circuit affirmed judgments of

approximately 30 million dollars against them, finding

that liability was supported under two substantivedue-process theories of liability applied to a 1989 murder investigation. Petitioners ask the Court to review:

I.

Whether in 1989 a law-enforcement officer violated a plaintiff ’s substantivedue-process rights merely by recklessly

gathering “unreliable” evidence implicating the plaintiff in a crime (1) even if the

prosecutor and defense counsel had access to all information needed to assess

the reliability of the evidence gathered;

and (2) even if the evidence gathered was

never used at a plaintiff ’s criminal trial

because the plaintiff voluntarily pleaded

to charges.

II. Whether in 1989 a law-enforcement officer violated a plaintiff ’s clearly established substantive-due-process right

prohibiting the “manufacture of false

evidence” by conducting an interview or

interrogation during which false statements incriminating the plaintiff were

made, even if the plaintiff voluntarily

pleaded to charges.

III. Whether a county can be liable for the decision of a sheriff, as final policymaker, to

fail to stop a multi-suspect investigation

when (1) the jury found that the sheriff

ii

QUESTIONS PRESENTED – Continued

was not responsible for any constitutional

violation or any conspiracy; (2) the plaintiffs identified no municipal policy; and

(3) there was no evidence of a historical

pattern of constitutional violations.

iii

PARTIES TO THE PROCEEDING

Petitioners are the Defendants below, Burdette

Searcey, Wayne Price, Ph.D, and County of Gage, Nebraska.

Respondents are the Plaintiffs below, 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, and Debra

Shelden.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING ......................

iii

TABLE OF CONTENTS ......................................

iv

TABLE OF AUTHORITIES ................................. viii

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................................

2

STATEMENT OF THE CASE..............................

3

REASONS FOR GRANTING CERTIORARI ....... 12

I.

Review is warranted because the Eighth

Circuit denied the Officers qualified immunity and affirmed a jury verdict based

on a substantive-due-process theory of

“reckless investigation” that other circuits

have rejected and that was not clearly established in 1989 ....................................... 12

A. The Court should review the Eighth

Circuit’s conclusion that the law on

“reckless investigation,” as applied to

the Officers’ conduct, was clearly established in 1989 ................................. 12

B. The Court should review the Eighth

Circuit’s conclusion that there is a substantive-due-process cause of action for

“reckless investigation” ......................... 17

v

TABLE OF CONTENTS – Continued

Page

II.

Review is warranted because the Eighth

Circuit denied the Officers qualified immunity and affirmed a jury verdict based

on generalizations about the “manufacture of false evidence” without identifying

clearly established law in 1989 showing

that the Officers’ actions here amounted

to manufacture of false evidence and without identifying actionable use of false evidence .......................................................... 23

A. The Court should review whether, under clearly established law, an officer

who obtains false statements through

interviews or interrogations has “manufactured” those false statements ........ 25

B. The Court should review whether a

law-enforcement officer can be held responsible for the full consequences of a

plaintiff ’s criminal conviction based on

having obtained false incriminating information about that plaintiff during an

investigation without a showing that

the officer interfered with the plaintiff ’s

right to a fair trial ................................. 30

vi

TABLE OF CONTENTS – Continued

Page

III.

Review is warranted because the Eighth

Circuit affirmed, in departure from this

Court’s established precedent, jury verdicts against the County based on DeWitt’s

role as a final policymaker even though

DeWitt had been exonerated by the jury of

individual liability and conspiracy ............. 33

A. The verdicts bar a finding of culpability ......................................................... 34

B. The Eighth Circuit failed to identify

“managerial” conduct that satisfies applicable causation requirements ........... 37

C. The decisions relied on by the Eighth

Circuit were not in DeWitt’s power, as

final policymaker, to make at the time

they were made ..................................... 39

CONCLUSION..................................................... 42

APPENDIX

United States Court of Appeals for the Eighth

Circuit, Opinion, June 11, 2018 ....................... App. 1

United States District Court for the District of

Nebraska, Memorandum and Order, September 6, 2016 ...................................................... App. 34

United States Court of Appeals for the Eighth

Circuit, Opinion, December 7, 2015 .............. App. 39

United States Court of Appeals for the Eighth

Circuit, Opinion, October 15, 2012 ................ App. 60

vii

TABLE OF CONTENTS – Continued

Page

United States District Court of the District of

Nebraska, Memorandum and Order, August

3, 2011 .......................................................... App. 107

United States Court of Appeals for the Eighth

Circuit, Order, July 17, 2018 ........................ App. 364

viii

TABLE OF AUTHORITIES

Page

CASES

Albright v. Oliver, 510 U.S. 266 (1994) .......................18

Alexander v. City of South Bend, 433 F.3d 550

(7th Cir. 2006).................................................... 22, 31

Alvarez v. City of Brownsville, 904 F.3d 382 (5th

Cir. 2018) ........................................................... 16, 38

Barts v. Joyner, 865 F.2d 1187 (11th Cir. 1989) .........31

Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) ............33

Brady v. Maryland, 373 U.S. 83 (1963) .... 13, 14, 15, 16

Brooks v. City of Chicago, 564 F.3d 830 (7th Cir.

2009) .................................................................. 19, 20

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ....... 30, 40

Burke v. McDonald, 572 F.3d 51 (1st Cir. 2009).........19

City of Oklahoma City v. Tuttle, 471 U.S. 808

(1985) .......................................................................37

City of St. Louis v. Praprotnik, 485 U.S. 112

(1988) ............................................... 34, 36, 37, 38, 41

County Comm’rs of Bryan County, Ok, v. Brown,

520 U.S. 397 (1997) ......................................... passim

Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808

(5th Cir. 2010)..........................................................20

Dean v. Cty. of Gage, Nebraska, 800 F.3d 945 (8th

Cir. 2015) .................................................................33

Dean v. Cty. of Gage, Nebraska, 807 F.3d 931 (8th

Cir. 2015) ...................................................................1

ix

TABLE OF AUTHORITIES – Continued

Page

Dean v. Cty. of Gage, Nebraska, No. 4:09CV3144,

2016 WL 4621070 (D. Neb. Sept. 6, 2016) ................1

Dean v. Searcey, 893 F.3d 504 (8th Cir. 2018) ..............1

Dean v. Smith, 805 F. Supp. 2d 750 (D. Neb.

2011) ..........................................................................1

Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014) ........30

Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010) .................29

Franks v. Delaware, 438 U.S. 154 (1978)....................24

Geness v. Cox, 902 F.3d 344 (3d Cir. 2018) .................16

Good v. Curtis, 601 F.3d 393 (5th Cir. 2010) ..............26

Grega v. Pettengill, 123 F. Supp. 3d 517 (D. Vt.

2015) .................................................................. 15, 17

Hart v. O’Brien, 127 F.3d 424 (5th Cir. 1997) ............24

Hernandez v. Terrones, 397 F. App’x 954 (5th Cir.

2011) .................................................................. 16, 20

Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st

Cir. 2013) ........................................................... 16, 31

Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) .............14

Manuel v. City of Joliet, Illinois, 137 S. Ct. 911

(2017) ......................................................................... 18

McMillian v. Monroe County, Alabama, 520 U.S.

781 (1997) ................................................................33

Michaels v. New Jersey, 50 F. Supp. 2d 353

(D.N.J. 1999) ............................................................21

x

TABLE OF AUTHORITIES – Continued

Page

Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978) ....................................................... 34, 37, 38, 41

Napue v. Illinois, 360 U.S. 264 (1959) ...... 13, 14, 15, 16

Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001) ....... 19

Newton v. City of New York, 566 F. Supp. 2d 256

(S.D.N.Y. 2008) ........................................................17

Nunez v. City of New York, 735 F. App’x 756 (2d

Cir. 2018) .................................................................22

Pembaur v. City of Cincinnati, 475 U.S. 469

(1986) ..................................................... 34, 38, 39, 41

People v. Hawkins, 621 N.Y.S.2d 252, 210 A.D.2d

873 (1994) ................................................................28

Perry v. New Hampshire, 565 U.S. 228 (2012) ...........21

Petty v. City of Chicago, 754 F.3d 416 (7th Cir.

2014) ........................................................................27

Phillips v. Allen, 668 F.3d 912 (7th Cir. 2012)............28

Reichle v. Howards, 566 U.S. 658 (2012) ....................13

Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d

Cir. 1997) .................................................................26

Stinson v. Gauger, 799 F.3d 833 (7th Cir. 2015) ........27

Tinney v. Richland Cty., 678 F. App’x 362 (6th

Cir. 2017) .................................................................16

United States v. Ruiz, 536 U.S. 622 (2002) .................16

White v. Pauly, 137 S. Ct. 548 (2017).................... 14, 23

White v. Smith, 696 F.3d 740 (8th Cir. 2012) ........... 1, 7

xi

TABLE OF AUTHORITIES – Continued

Page

Wilson v. Lawrence County, 260 F.3d 946 (8th

Cir. 2001) .................................................................13

Winfrey v. Rogers, 901 F.3d 483 (5th Cir. 2018) .........22

Winslow v. Smith, 696 F.3d 716 (8th Cir. 2012) ...........1

Wray v. City of New York, 490 F.3d 189 (2d Cir.

2007) ........................................................................30

Yarris v. Cty. of Del., 465 F.3d 129 (3d Cir. 2006) .......21

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) .............31

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ......................... 10, 18, 19, 21, 24

U.S. Const. amend. V ..................................................10

U.S. Const. amend. VI .................................................10

U.S. Const. amend. XIV .......................................... 2, 20

STATUTES

28 U.S.C. § 1254(1) ........................................................1

28 U.S.C. § 1291 ............................................................1

42 U.S.C. § 1983 ............................................ 2, 3, 17, 34

Neb. Rev. Stat. § 23-1201(2).................................. 39, 40

Neb. Rev. Stat. § 23-1710 ............................................39

Neb. Rev. Stat. § 29-1602 ...................................... 39, 40

xii

TABLE OF AUTHORITIES – Continued

Page

RULES

Sup. Ct. R. 13(1) ............................................................1

Sup. Ct. R. 13(3) ............................................................1

1

PETITION FOR A WRIT OF CERTIORARI

Burdette Searcey, Wayne Price, Ph.D, and County

of Gage, Nebraska petition for a writ of certiorari to

review the judgment of the U.S. Court of Appeals for

the Eighth Circuit.

------------------------------------------------------------------

OPINIONS BELOW

Opinions of the Eighth Circuit are reported at

Winslow v. Smith, 696 F.3d 716 (8th Cir. 2012); White

v. Smith, 696 F.3d 740 (8th Cir. 2012); Dean v. Cty. of

Gage, Nebraska, 807 F.3d 931 (8th Cir. 2015); and Dean

v. Searcey, 893 F.3d 504 (8th Cir. 2018). Relevant orders

of the district court can be found at Dean v. Smith, 805

F. Supp. 2d 750 (D. Neb. 2011) and Dean v. Cty. of Gage,

Nebraska, No. 4:09CV3144, 2016 WL 4621070 (D. Neb.

Sept. 6, 2016) (unpublished decision).

------------------------------------------------------------------

JURISDICTION

The Eighth Circuit had jurisdiction under 28

U.S.C. § 1291. The Eighth Circuit denied en banc review on July 24, 2018. App. 365. Petitioners applied for

and received an extension of time to file their Petition.

Thus, Petitioners timely filed this Petition on November 14, 2018. See Sup. Ct. R. 13(1), (3). The Court has

jurisdiction under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S. Const. amend. XIV

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

42 U.S.C. Section 1983

Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress,

except that in any action brought against a judicial officer for an act or omission taken in

such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was

unavailable. For the purposes of this section,

3

any Act of Congress applicable exclusively to

the District of Columbia shall be considered to

be a statute of the District of Columbia.

------------------------------------------------------------------

STATEMENT OF THE CASE

Overview of the claims and the parties

This lawsuit arises from the 1989 investigation of

the murder of Helen Wilson and resulting criminal

prosecutions.

Respondents—the Plaintiffs below—are six individuals convicted of offenses related to Wilson’s murder, five after pleas and one, Joseph White, after a

jury trial. App. 3; 304. Respondents filed Section 1983

actions after 2008 DNA testing implicated another

person. App. 3; 354. After a long procedural history, a

2016 trial of their consolidated actions led to a nearly

30-million-dollar verdict against two law-enforcement

officers and a rural Nebraska county. App. 4-5.

Petitioners are the Defendants against whom

judgments were entered.1 The individual Petitioners

are two Deputy Sheriffs, Burdette Searcey and Wayne

Price, Ph.D (collectively “the Officers”). The municipal

Petitioner is Gage County, a political subdivision of

Nebraska (“the County”). The sole theory of municipal

liability at the 2016 trial rested on the acts or

1

Respondents also sued the County Attorney for Gage

County, Richard Smith, (“Prosecutor Smith”) and several deputies who were dismissed earlier in litigation.

4

omissions of Sheriff Jerry DeWitt who the Eighth

Circuit held acted as the County final policymaker

for investigations and arrests. App. 57. DeWitt was

also a defendant at the time of the 2016 trial, but the

jury found for him on all claims. App. 9.

The investigation

Wilson was raped and murdered in 1985. App. 135.

The Beatrice Police Department (“BPD”) conducted the

initial investigation. App. 135-138. During that investigation, BPD suspected Bruce Allen Smith—the same

man ultimately implicated by 2008 DNA tests. App.

136. But BPD ruled him out as a suspect in 1985 based

on an erroneous report from the Oklahoma City Police

Laboratory. App. 136-137. BPD could not solve the Wilson murder. App. 145.

In January 1989, the Gage County Sheriff ’s Office

reopened the investigation. App. 145-146. Searcey was

the lead investigator. Price, a psychologist by training,

played a limited role. He participated in only a few interviews, mostly at the request of Respondents’ criminal-defense counsel. App. 134; 162-167; 182-183; 213214; 222-224; 257-262; 264. DeWitt’s role primarily

consisted of administrative tasks. App. 134.

Searcey started his formal investigation by following up on initial leads. App. 147. This led Searcey to

focus on Respondents White and JoAnn Taylor. App.

147-149. One of Taylor’s acquaintances told Searcey

that Taylor had confessed to being in Wilson’s apartment during Wilson’s murder. App. 147-148. The

5

acquaintance also told Searcey that she had seen

White, Taylor, and Respondent Thomas Winslow driving in the area on the night of Wilson’s murder. App.

148-149.

Respondents and the Eighth Circuit focus on inconsistencies between the first statements Searcey collected and the crime-scene evidence as demonstrating

that the Officers should have known the evidence was

false. App. 65-66; 142-143. But these statements—like

most of the statements Respondents rely on—were recorded and made part of the investigation file. This file

was available to Prosecutor Smith and to Respondents’

criminal-defense attorneys. App. 290; 354. So was the

crime-scene evidence that Respondents allege was inconsistent with these statements.

Early in his investigation, Searcey also spoke to

Winslow. App. 149. During this initial interview, Winslow corroborated some information that Searcey had

received about White and Taylor but denied his own

involvement in Wilson’s murder. App. 149. Soon after

this interview, Prosecutor Smith arranged with Winslow’s attorney (representing him on unrelated felony

charges) to interview Winslow again under a grant of

use immunity. App. 151-152. During this second interview, Winslow changed his statement, admitting that

he had been in Wilson’s apartment with White and

Taylor on the night of Wilson’s murder. App. 153-159.

Charges were filed and arrest warrants were executed for White and Taylor. App. 159; 162. North Carolina law enforcement arrested Taylor on a fugitive

6

warrant. App. 160. Shortly after, she gave a voluntary

statement to North Carolina law enforcement admitting she was present when White and another unidentified male raped and murdered Wilson. App. 160-162.

Before leaving North Carolina, Searcey and BPD

Officer Sam Stevens took a recorded statement from

Taylor during which she again admitted her involvement. App. 167-181. After she arrived in Nebraska,

Taylor again provided a recorded statement. App. 181183. During this third statement, Taylor viewed a

photo lineup and named Winslow as the previously unidentified male in Wilson’s apartment. App. 181. Taylor

then admitted that she had known it was Winslow all

along but that she had been afraid to identify him. App.

182. Prosecutor Smith filed a complaint against Winslow for first-degree murder. App. 187.

Respondents and the Eighth Circuit identify several problems with Taylor’s statements, emphasizing

internal inconsistencies and inconsistencies between

these statements and the crime-scene evidence. App.

68. They fault Searcey, and non-party BPD Officer Stevens, for using suggestive techniques when Taylor

claimed inability to remember some details. App. 6970. Taylor’s statements were recorded and available in

the investigation file. App. 354. Both the inconsistencies that Respondents identify and the interview techniques used were evident from those transcripts. They

also emphasize that Taylor had a known mental illness

and that Price, a psychologist, met with her and could

have influenced her before she gave her third statement incriminating Winslow. App. 18-19. Taylor’s

7

meeting with Price was at her request and Price obtained no additional incriminating information during

that meeting. App. 183-184.

After White, Taylor, and Winslow were arrested,

their blood was typed. App. 71; 189; White v. Smith, 696

F.3d 740, 746 n. 7 (8th Cir. 2012). The 1985 BPD crimescene investigation had found Type O and Type B

blood. Wilson herself had Type O blood. App. 137. The

initial bloodwork obtained in 1989 showed that White

(like Wilson) had Type O blood matching some blood

found on the crime scene. But neither Winslow nor

Taylor had the Type B blood found at the crime scene.

App. 357-358. Though they had not identified a source

of Type B blood, the investigators continued finding evidence implicating White, Taylor, and Winslow in Wilson’s murder. App. 71-77.

After he reviewed the blood-typing results and the

other evidence, Prosecutor Smith provided law enforcement with a list of tasks to complete. App. 189;

197. As the Officers completed these tasks, the remaining Respondents—Deborah Shelden, James Dean, and

Kathy Gonzalez—were arrested one-by-one between

April and May 1989.

Shelden’s arrest came after she acknowledged

during an interview that she was in Wilson’s apartment the night of the murder and had traveled in a car

with Winslow, White, and Taylor that evening. App.

203-206. The next day, Shelden gave another interview stating that Respondent Dean had also been present. App. 206-210. Shortly after these statements,

Shelden’s counsel arranged a plea deal; Shelden would

8

plead to aiding and abetting Wilson’s murder. App. 213;

215-216. Shelden then gave another statement implicating Gonzalez in Wilson’s murder. App. 254-255.

Respondents and the Eighth Circuit identify

several inconsistencies in Shelden’s statements and

between these statements and other evidence. App. 1617. They also allege that Searcey used suggestiveinterview techniques to get Shelden to implicate Dean

and Gonzalez. App. 80; 89; 91. Shelden’s statements

were recorded and available, along with the crimescene evidence, as part of the investigative file. App.

290.

After Shelden implicated him, a warrant was issued for Dean’s arrest. App. 210. Dean first denied involvement and provided false alibis. App. 73; 76; 212.

He was promptly appointed counsel who requested

that Dean take a polygraph. App. 328. Dean failed.

App. 220. Dean’s attorney then requested that Price

and Prosecutor Smith accompany him to talk to Dean

about the polygraph results. App. 222; 328. During this

conversation, Price suggested that Dean may be blocking his memory of the events. App. 223-224. In the days

after this meeting, Dean made a series of statements,

all with his counsel present, acknowledging his involvement in Wilson’s murder and implicating White,

Taylor, Winslow, and Shelden. App. 75-77; 226-229; 244;

328-329. Dean’s attorney then reached a plea deal with

Prosecutor Smith, agreeing Dean would plead guilty to

aiding and abetting Wilson’s murder. App. 77; 245-248.

Shortly after, Dean gave a recorded statement implicating Gonzalez. App. 253-254.

9

The Eighth Circuit points to inconsistencies in

Dean’s statements and between his statements and

crime-scene evidence. App. 75. It also emphasizes that

Price could have unduly influenced Dean by encouraging him to dream when Dean first denied involvement.

App. 18; 76; 87. Yet all the statements in which Dean

gave incriminating information were either recorded

or written, were made part of the investigative file, and

were given in the presence of his attorney after charges

were filed. App. 226; 311; 326.

Based on the statements of Shelden and Dean,

Gonzalez was arrested and charged in late May 1989.

App. 255. Gonzalez, on advice of counsel, took and

failed a polygraph. App. 311. Blood tests showed Gonzalez had Type B blood. App. 257.

While Gonzalez’s blood-type matched, in reality

there was a mismatch between her specific alleles and

the sample from the crime scene. App. 17. But at the

time, the significance of this was unclear, at least to the

Nebraska State Patrol’s forensic analyst, Dr. Reena

Roy. At her September 1989 deposition, Roy testified

that she could not exclude Gonzalez as the source of

crime-scene blood. App. 263; 331. In 2016, Roy was allowed to testify, through the lens of hindsight, that the

bloodwork did rule Gonzalez out as a suspect. But that

is not how Roy testified in 1989. App. 263.

After Roy’s deposition, Gonzalez entered into a plea

agreement. App. 263; 299. The results of Gonzalez’s

bloodwork, including the indication of mismatched

10

alleles, were available to Gonzalez, her counsel, and all

Respondents in 1989. App. 354.

All Respondents were promptly appointed counsel

after arrest. App. 312. Everything that Respondents

rely on to show the falsity of the evidence against them

was known by or available to Respondents in 1989.

App. 354.

Ultimately, all the Respondents except for White

pleaded to charges related to Wilson’s murder. App.

292; 300-302. None of the Respondents asserted their

innocence during the plea colloquy. App. 215-216; 245249; 292-293; 300-302.

Procedural history

White requested DNA testing under a Nebraska

statute. The results of 2008 testing of specimens collected from the crime scene established that Wilson

had been raped by Bruce Allen Smith, who had no

known connection to Respondents. App. 108. White

was granted a new trial, and the State of Nebraska decided to dismiss his charges. The other Respondents

received pardons. App. 108.

Respondents then filed this lawsuit asserting several theories of liability. The district court dismissed

Respondents’ Fourth Amendment, Fifth Amendment,

Sixth Amendment, and state-law claims. Respondents

did not appeal. App. 86, n. 5. The district court granted

summary judgment on Respondents’ claims that their

11

pleas were not knowing and voluntary. The Eighth Circuit affirmed. App. 63.

This left only the substantive-due-process claims

(for manufacture of false evidence and reckless investigation) and the conspiracy claim. App. 4. The Officers

moved for summary-judgment on the substantive-dueprocess claims. App. 111. The district court granted

this motion as to the Respondents who pleaded to

charges. App. 111. Another district-court judge denied

the motion as to White, who was proceeding separately.

The Eighth Circuit reversed the grant of qualified immunity, finding that all Respondents could go forward

on substantive-due-process theories of reckless investigation and manufacturing false evidence. App. 63.

The parties went to trial for the first time in 2014.

This resulted in (1) judgment as a matter of law for the

County and on the conspiracy claim; and (2) a mistrial.

App. 42. A 2015 panel of the Eighth Circuit reversed

the district court’s grant of judgment as a matter of law

to the County. App. 41. This panel determined that a

Nebraska Sheriff is a county policymaker, and thus the

County was responsible for constitutional violations

that DeWitt affirmatively commanded occur. App. 5459. This decision was based on the existence of a directliability claim against DeWitt and a conspiracy claim,

both of which the 2016 jury rejected. App. 58-59.

On remand, the jury found for DeWitt on all claims

and found no conspiracy existed. App. 5. Nonetheless,

the jury found against the County. Id. The jury also returned verdicts against the Officers on some, but not

12

all, claims. Id. The Eighth Circuit affirmed the jury’s

verdicts and denied a timely filed petition for rehearing en banc. App. 365.

------------------------------------------------------------------

REASONS FOR GRANTING CERTIORARI

I.

Review is warranted because the Eighth

Circuit denied the Officers qualified immunity and affirmed a jury verdict based

on a substantive-due-process theory of

“reckless investigation” that other circuits

have rejected and that was not clearly established in 1989.

In rejecting the Officers’ qualified-immunity defense and affirming the nearly 30-million-dollar judgments against them based on a substantive-dueprocess theory of reckless investigation, the Eighth

Circuit found that (1) reckless investigation is a viable

theory of constitutional liability; and (2) the law on this

theory was clearly established in 1989. App. 87. Both

conclusions warrant this Court’s review.

A. The Court should review the Eighth

Circuit’s conclusion that the law on

“reckless investigation,” as applied to

the Officers’ conduct, was clearly established in 1989.

The Eighth Circuit’s holding that the law of “reckless investigation” was clearly established in 1989 departs from the precedent of lower courts around the

13

country and of this Court, both in methodology and in

result. Methodologically, the Eighth Circuit strayed

from this Court’s oft repeated mandate that the qualified-immunity analysis must focus on what specific

source of law put the defendant’s conduct beyond debate at the time of the conduct. See Reichle v. Howards,

566 U.S. 658, 664 (2012). As to result, the Eighth Circuit split from several courts that have found no law

clearly establishing a reckless-investigation cause of

action.

The Eighth Circuit first recognized a constitutional cause of action for reckless investigation in Wilson v. Lawrence County, 260 F.3d 946, 956-57 (8th Cir.

2001), a case about a 1985 investigation The decision

below relied heavily on Wilson in concluding that the

law on reckless investigation was clearly established

in 1989. App. 25; 86.2

The common methodological flaw running through

both Wilson and the decision below is the Eighth Circuit’s failure to identify any pre-1989 case law showing

that the relevant principles of constitutional law were

clearly established. The only cases that the Eighth Circuit has relied on to anchor a reckless-investigation

claim in pre-1989 case law are Brady v. Maryland, 373

U.S. 83, 87 (1963) and Napue v. Illinois, 360 U.S. 264

2

While Wilson is the starting point for understanding the

Eighth Circuit’s approach to reckless investigation, notably the

Wilson defendants made concessions relevant to the qualified-immunity analysis on reckless investigation. Wilson, 260 F.3d at

955. The decision below applied Wilson even though the Officers

made no similar concessions. App. 25; 86.

14

(1959).3 But these cases cannot provide clearly established law. This Court has repeatedly warned that

“clearly established law should not be defined at a high

level of generality . . . [but] must be particularized to

the facts of the case.” White v. Pauly, 137 S. Ct. 548

(2017). Three considerations show why, under the

White standard, Brady and Napue cannot provide the

clearly established law.

First, both Brady and Napue were prosecution

cases. The considerations relevant to claims against

prosecutors are different than those relevant to claims

against law enforcement. Courts confronting the issue

have held that, even if an officer has some duty of pretrial disclosure, it is not the same duty applicable to

prosecutors. The Fourth Circuit, sitting en banc, explained:

The Brady duty is framed by the dictates of

the adversary system and the prosecution’s

legal role therein. Legal terms of art define its

bounds and limits. The prosecutor must ask

such lawyer’s questions as whether an item of

evidence has “exculpatory” or “impeachment”

value and whether such evidence is “material.” It would be inappropriate to charge police with answering these same questions, for

their job of gathering evidence is quite different from the prosecution’s task of evaluating

it.

Jean v. Collins, 221 F.3d 656, 660 (4th Cir. 2000) (en

banc). Thus, even if officers can be liable for some

3

See Wilson, 260 F.3d 946.

15

conduct related to collection and preservation of evidence, the qualified-immunity analysis requires more

than just assuming that law governing prosecutors

also applies to officers. The contours of the law, as it

applies to law enforcement, were not clearly established in 1989.

Second, both Brady and Napue involve withholding exculpatory evidence from a criminal defendant

and his lawyer. There is no allegation that the Officers

withheld any evidence. Instead, the theory is that the

Officers recklessly gathered “unreliable” evidence. App.

32.

This difference (between gathering evidence and

withholding evidence) matters. The heart of Brady

and Napue is that withholding exculpatory evidence

interferes with the effective function of the adversarial

system. A cause of action for recklessly gathering unreliable evidence, absent accompanying allegations of

withholding, does not serve the same purpose. Instead,

this cause of action imposes an affirmative duty on law

enforcement to evaluate the reliability of evidence before deciding whether to continue investigating. The

result vastly expands law-enforcement liability. See

Grega v. Pettengill, 123 F. Supp. 3d 517, 535 (D. Vt.

2015) (rejecting claim for reckless investigation as “essentially a malpractice standard based upon ‘reckless’

conduct” because it would be an “expansion of the

range of government conduct that amounts to a violation of a criminal defendant’s right to a fair trial in this

circuit”).

16

Third, because Brady and Napue rest on a fairtrial right, how they apply when a plaintiff pleads to

charges was not clearly established in 1989. See United

States v. Ruiz, 536 U.S. 622, 629 (2002) (holding that

there is no Brady claim for failure to disclose impeachment evidence when a plaintiff pleads guilty). The

Eighth Circuit fails to do an adequate qualifiedimmunity analysis because it does not consider how

Respondents’ pleas affect the applicability of Brady

and Napue. In doing so, the Eighth Circuit departs

from a recent en banc decision of the Fifth Circuit,

Alvarez v. City of Brownsville, 904 F.3d 382 (5th Cir.

2018), as well as the decisions of other circuits. For example, the Sixth Circuit has held that qualified-immunity defeated a claim challenging the adequacy of

an investigation when the plaintiff had pleaded to the

charges. Tinney v. Richland Cty., 678 F. App’x 362, 367

(6th Cir. 2017) (unpublished).

As a result of this methodological error, the Eighth

Circuit recognizes as clearly established in 1989 a

cause of action that other jurisdictions say is not

clearly established even today. The Third Circuit has

questioned whether reckless investigation is a viable

theory, while concluding it was not clearly established

in 2006. Geness v. Cox, 902 F.3d 344, 354 n. 5 (3d Cir.

2018). The Fifth Circuit has held that there is no freestanding constitutional claim based on a reckless investigation. Hernandez v. Terrones, 397 F. App’x 954

(5th Cir. 2011). District courts, too, have found the law

17

not clearly established on this claim.4 The Court

should resolve this split of authority.

B. The Court should review the Eighth

Circuit’s conclusion that there is a substantive-due-process cause of action for

“reckless investigation.”

Not only should the Court review whether the law

on “reckless investigation” was clearly established in

1989, it should also review whether, even today, this is

a viable cause of action under Section 1983. Two considerations show why the Court should review the

reckless-investigation cause of action adopted by the

Eighth Circuit.

First, the Eighth Circuit has imported the amorphous substantive-due-process analysis into an area

properly governed by procedural amendments.

The Eighth Circuit’s reckless-investigation framework allowed Respondents to invoke this substantivedue-process theory as a basis for recovering damages

resulting from their criminal convictions. The jury was

instructed to decide whether Respondents had recklessly gathered “unreliable” evidence during the investigation and, if they found in the affirmative, asked to

award damages for the time that Respondents spent in

prison before and after their convictions. This was permitted even though Respondents’ pleas were found

4

Grega v. Pettengill, 123 F. Supp. 3d 517 (D. Vt. 2015); Newton v. City of New York, 566 F. Supp. 2d 256, 278 (S.D.N.Y. 2008)

(“[T]here is no constitutional right to an adequate investigation.”).

18

knowing and voluntary and their other procedural

claims were found time barred or deficient. In other

words, Respondents were challenging their arrests, detentions, or convictions (through pleas or, in one case,

trial). Yet rather than invoke the procedural protections that govern each of these stages, Respondents

were allowed to rely on an amorphous substantivedue-process analysis. App. 96-97.

Using substantive-due-process in this way—to

breathe new life into procedural claims that are either

substantively deficient or time barred—violates this

Court’s instruction in Albright v. Oliver that “where a

particular Amendment provides an explicit textual

source of constitutional protections against a particular sort of government behavior, that Amendment, not

the more generalized notion of substantive-dueprocess, must be the guide for analyzing those claims.”

510 U.S. 266, 270-71 n. 4 (1994) (plurality opinion). In

Albright, this Court rejected the contention that the initiation of criminal proceedings without probable cause

violates substantive-due-process. Albright held that

petitioner must look to the explicit text of the Fourth

Amendment as a source of protection for the “particular sort of government behavior” at issue. Id.

Here, too, the Eighth Circuit’s recognition of a substantive-due-process action for reckless investigation

duplicates the remedy available from a procedural

claim but under more amorphous and ambiguous

terms. A claim related to arrest or detention must be

analyzed as a Fourth Amendment claim. See Manuel v.

City of Joliet, Illinois, 137 S. Ct. 911, 919 (2017) A claim

19

related to criminal conviction must be analyzed as a

fair trial claim, with the analysis focusing on whether

the law-enforcement officer took steps that interfered

with the plaintiff ’s right to a fair trial, not by relying

on an unanchored substantive-due-process framework. Newsome v. McCabe, 256 F.3d 747, 752 (7th Cir.

2001); Burke v. McDonald, 572 F.3d 51, 58 (1st Cir.

2009).

These concerns are particularly pronounced as

they relate to the five Respondents who pleaded to

charges. Even if there may be circumstances so extreme that investigatory conduct renders a guilty plea

involuntary, the Eighth Circuit expressly found that

this was not the case here. Any “taint” from the investigatory conduct had dissipated, leaving the guilty

pleas voluntary. App. 98-101. By nonetheless recognizing a cause of action for reckless investigation

grounded in substantive-due-process, the Eighth Circuit created a sweeping new right.

The Eighth Circuit’s application of substantivedue-process splits from the Seventh Circuit, which has

rejected attempts to use general claims of substantivedue-process to displace more specific procedural

claims. For example, in Brooks v. City of Chicago,

the Seventh Circuit rejected plaintiff ’s attempts to

rely on substantive-due-process to circumvent a barred

Fourth Amendment claim:

A plaintiff cannot state a due process claim by

combining what are essentially claims for

false arrest under the Fourth Amendment

20

and state law malicious prosecution into a

sort of hybrid substantive due process claim

under the Fourteenth Amendment.

564 F.3d 830 (7th Cir. 2009). Other courts, too, have

recognized that claims against law-enforcement officers related to criminal convictions must be analyzed as

procedural fair-trial claims rather than substantivedue-process claims. See Hernandez, 397 F. App’x at

966.

Second, the Eighth Circuit has imposed unwarranted obligations on law-enforcement officers who

gather evidence, requiring them to judge the reliability

of that evidence. Not only is substantive-due-process

the wrong framework to consider claims of investigatory misconduct, but there are also questions about

whether gathering unreliable evidence violates Respondents’ constitutional rights at all.

Merely gathering evidence—even if unreliable—

has never been thought to independently violate the

Constitution. The Eighth Circuit’s recognition of the

reckless-investigation cause of action changes that. By

recognizing a right not to have law-enforcement officers ever gather unreliable evidence, the Eighth Circuit

dramatically expands the scope of law-enforcement liability, departing from precedent in other lower courts,

which have recognized that there is no right to be free

from investigation or even prosecution. See Cuadra v.

Hous. Indep. Sch. Dist., 626 F.3d 808, 814 (5th Cir.

2010) (“[T]here [is] no Fourteenth Amendment ‘liberty

interest’ or substantive due process right to be free

21

from criminal prosecution unsupported by probable

cause.”)

There are good reasons not to regulate the investigatory process this way. Assessing reliability versus

unreliability is not a matter within the province of lawenforcement, and collection of unreliable evidence does

not itself violate the Constitution. Yarris v. Cty. of Del.,

465 F.3d 129, 143 (3d Cir. 2006). Indeed, even use of

“unreliable” evidence usually does not violate the Constitution. Perry v. New Hampshire, 565 U.S. 228, 245

(2012). Determination of whether evidence is reliable

is, in most cases, a role for the jury. Id. In extreme

cases, the Constitution requires that unreliable evidence be kept from the jury. But even then, the remedy

is exclusion of the evidence, not liability for gathering

it. “An improper investigation yielding unreliable evidence has its own remedy in the criminal justice system: suppression of the evidence at trial or reversal of

a conviction based on the unreliable evidence.”

Michaels v. New Jersey, 50 F. Supp. 2d 353, 363 (D.N.J.

1999).

The Eighth Circuit’s approach is also problematic

because it holds officers responsible for determining

the reliability of evidence given all information gathered, including that obtained well after the prosecution

phase has started. While some courts have recognized—under a Fourth Amendment malicious-prosecution theory—that law-enforcement officers may have

a duty to release detained inmates if information undermining probable cause becomes available before

22

prosecution starts,5 the Eighth Circuit goes well beyond that, imposing a duty on law-enforcement officers

to stop collecting information being used to prepare

cases for criminal prosecution.

In evaluating claims that investigatory conduct

caused a liberty deprivation, courts in other jurisdictions have not focused on the adequacy of the investigation or the reliability of evidence gathered. Instead,

courts have focused on whether officers interfered with

the function of the actors whose role it is to evaluate

the evidence (jury, judge, defense counsel, prosecutors).6 Without evidence that a law-enforcement officer

interfered with the function of the adversarial system,

deficiencies in the investigation are not constitutionally actionable. See Alexander v. City of South Bend,

433 F.3d 550, 555 (7th Cir. 2006) (“The Constitution

does not require that police lineups, photo arrays, and

witness interviews meet a particular standard of quality.”)

The Eighth Circuit departs from this authority

and, in doing so, expands the potential scope of lawenforcement liability for investigatory conduct. The

Court should clarify the law on reckless investigation.

5

See, e.g., Nunez v. City of New York, 735 F. App’x 756, 761

(2d Cir. 2018) (analyzing whether there was any evidence that

officer “learned of any intervening facts between the arrest and

initiation of prosecution”).

6

See, e.g., Winfrey v. Rogers, 901 F.3d 483 (5th Cir. 2018).

23

II.

Review is warranted because the Eighth

Circuit denied the Officers qualified immunity and affirmed a jury verdict based

on generalizations about the “manufacture of false evidence” without identifying

clearly established law in 1989 showing

that the Officers’ actions here amounted to

manufacture of false evidence and without

identifying actionable use of false evidence.

The Eighth Circuit also adopted a broad interpretation of a substantive-due-process cause of action for

“manufacturing false evidence,” applying it beyond

what is supported by existing precedent.

In denying the Officers’ qualified-immunity defenses, the Eighth Circuit rested on the premise that it

is, of course, unconstitutional to “frame” a suspect. App.

26. But by invoking the “framing” label, the Eighth Circuit glossed over key legal issues. Even if “framing”

were unconstitutional under clearly established law in

1989, the analysis cannot stop at this high level of generality. See White, 137 S. Ct. at 551 (collecting cases).

Two questions remain: (1) what constituted “framing”

or “manufacturing” evidence under clearly established

law in 1989; and (2) did the Officers’ specific conduct

rise to that level?

Aside from misplaced focus on alleged inaccuracies in an arrest affidavit that cannot provide the basis

for Respondents’ substantive-due-process claims,7 the

7

The Eighth Circuit emphasizes that the arrest affidavit for

White and Taylor contained some allegedly false statements. App.

24

only evidence allegedly “manufactured” here were

statements given during investigatory interviews by

Respondents implicating themselves and other Respondents in Wilson’s murder. App. 20-22. To be clear,

there is no allegation that the Officers fabricated the

incriminating statements; Respondents gave these

statements. Instead, the theory is that the Officers

manufactured evidence because the Eighth Circuit

concluded these statements were (in light of other evidence gathered during the investigation and the inconsistencies in the statements themselves) obviously

false. App. 20-23.

Based on this, the Eighth Circuit concluded that it

was appropriate for the jury to hold the Officers liable,

under a substantive-due-process theory, for Respondents’ criminal convictions and resulting imprisonment,

even as to the five Respondents who entered voluntary

pleas to charges related to Wilson’s murder.

The Eighth Circuit’s interpretation of this cause of

action departs from relevant precedent in two ways:

20. But this arrest affidavit cannot support the jury’s verdict. The

only arguable relevance of this affidavit would be to claims of

White and Taylor under the Fourth Amendment. The district

court found that those claims were time barred. App. 314. Moreover, the Eighth Circuit did not and could not find that, without

the inaccurate statements, there would not have been probable

cause for the arrests of White and Taylor. Existence of probable

cause defeats a Fourth Amendment claim. Franks v. Delaware,

438 U.S. 154, 171 (1978); Hart v. O’Brien, 127 F.3d 424, 442 (5th

Cir. 1997).

25

1.

It imposes novel substantive-due-process

liability that limits the ability of a lawenforcement officer to conduct interviews

or interrogations (even using constitutionally permissible techniques) because

those interviews may produce false information;

2.

It subjects a law-enforcement officer who

obtained a false incriminating statement

about a plaintiff to liability for all the consequences of the plaintiff ’s criminal conviction without requiring any showing

that the officer interfered with the plaintiff ’s right to trial, and even when the

plaintiff voluntarily pleaded to the

charges.

Both departures expand the scope of law-enforcement

liability in the Eighth Circuit. And they do so (1) under

the guise of a nebulous substantive-due-process analysis; and (2) without proper consideration of qualifiedimmunity principles.

A. The Court should review whether, under clearly established law, an officer

who obtains false statements through

interviews or interrogations has “manufactured” those false statements.

Circuits are split on whether—under law clearly

established in 1989—an officer who took a false statement during an interrogation thereby “manufactured”

false evidence in violation of substantive-due-process

26

rights. According to the Eighth Circuit, the answer is

yes, as long as a jury could conclude that, given all the

other information gathered during the investigation,

some information given during the statement was obviously false. App. 20-25. But this is a broader definition of “manufacturing” than has been adopted in other

circuits, and it is unsupported by any law clearly established in 1989.

Although other lower courts have recognized a

manufacturing-false-evidence cause of action against

officers and prosecutors, this cause of action has generally been limited to when a government-defendant

has created evidence from whole cloth. See, e.g., Ricciuti

v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997).

Courts have split, however, on whether and when

the cause of action can apply to an officer who has obtained information from a third party or whether, instead, claims related to interviews must be analyzed

under separate legal frameworks.8 The Eighth Circuit

applied this cause of action to law-enforcement officers

who obtained false testimony from independent parties during investigatory interviews. In doing so, it

split from the Seventh Circuit, which has explicitly rejected any cause of action for manufacture of false evidence that would allow a 1983 plaintiff to transform

either a coercion claim or a suggestiveness claim into

a substantive-due-process claim for manufacture of

8

See, e.g., Good v. Curtis, 601 F.3d 393, 396 (5th Cir. 2010)

(officer’s conduct in intentionally using suggestive lineup to implicate a suspect falsely could sustain a manufacturing-falseevidence claim where the officer failed to disclose information).

27

false evidence. See Petty v. City of Chicago, 754 F.3d

416, 423 (7th Cir. 2014); Stinson v. Gauger, 799 F.3d

833, 843 (7th Cir. 2015) (“Sorting out reliable and unreliable evidence is an ordinary matter for trial,

through the crucible of the adversary process, so the

use of these suspect techniques doesn’t violate due process unless the evidence is introduced at trial without

adequate safeguards, such as disclosure of all material

exculpatory evidence as required by Brady.”)

The Court should resolve this split because the

Eighth Circuit’s approach distorts the existing legal

framework that governs the use of statements obtained by law enforcement during an investigation.

There is already law in place governing whether interview techniques are unduly suggestive or unduly coercive. But under the Eighth Circuit’s approach, a

plaintiff can evade these frameworks by invoking the

label of “manufacturing” evidence.

Because it invoked the “manufacturing” label, the

Eighth Circuit did not require a showing that any of

the techniques used by the Officers were, themselves,

unconstitutional—either under clearly established law

in 1989 or even now. The Eighth Circuit made general

comments that the Officers used suggestive techniques

with some witnesses, but there was no analysis of

whether the techniques used were themselves unconstitutional. Instead, the focus was on whether the

statements obtained were inconsistent or in conflict

with other evidence or otherwise unbelievable, even

though all the statements and other evidence that created these alleged inconsistencies was equally

28

available to Prosecutor Smith, Respondents, and Respondents’ attorneys.

By using the “manufacturing” framework, the

Eighth Circuit has disclaimed any need to consider

whether the particular interview or interrogation techniques that the Officers used were prohibited by

clearly established law. Thus, by invoking the “manufacturing” label the Eighth Circuit sidestepped the

qualified-immunity analysis that should have applied

to the Officers’ conduct. The Seventh Circuit has explicitly rejected such an approach, holding that even if

there could be a substantive-due-process cause of action arising out of an interrogation, there would have

to be a finding that the specific interrogations techniques were prohibited by clearly established law.

Phillips v. Allen, 668 F.3d 912, 917 (7th Cir. 2012).

The closest that the Eighth Circuit gets to zeroing

in on a specific technique was its repeated focus on evidence that Price, a psychologist by training, encouraged some Respondents to relax, telling them that

blocked memories were most likely to resurface in a

relaxed state. But there was no law in 1989 establishing that encouraging suspects to relax, or that involving a law-enforcement psychologist in custodial

interviews, violated the Constitution. In other words,

the unreliability of this type of evidence, and the impropriety of soliciting it, was not clearly established in

1989.9

9

See, e.g., People v. Hawkins, 621 N.Y.S.2d 252, 210 A.D.2d

873 (1994) (identification through dream admissible).

29

As to Searcey, the Eighth Circuit relies only on

general statements that he used suggestive or coercive

techniques. But there simply is no showing that the

techniques that Searcey used were anything but typical law-enforcement techniques. It is only by focusing

on what it believes to be the apparent falsity of the

statements taken that the Eighth Circuit concludes

that Searcey violated the Constitution.

Applying the manufacturing-false-evidence cause

of action in this way also violates the principle that

substantive-due-process should apply to the conduct of

executive officials only when this conduct shocks the

conscience. Because the Eighth Circuit’s manufacturing-of-false-evidence analysis focuses on the results of

the criminal justice process, not the Officers’ conduct,

it improperly avoids analyzing whether the Officers’

conduct shocked the conscience. Even assuming some

egregious investigative interrogation techniques

would shock the conscience, this does not justify imposing broad substantive-due-process liability on officers’

use of common interview techniques. “For example, on

the one hand, forcing an emetic down a person’s throat

to forcibly extract evidence from a suspect’s stomach

shocks the conscience, but on the other hand, lying to,

threatening, or insulting a suspect does not.” See Fox v.

Hayes, 600 F.3d 819, 841 (7th Cir. 2010).

30

B. The Court should review whether a

law-enforcement officer can be held responsible for the full consequences of a

plaintiff ’s criminal conviction based

on having obtained false incriminating

information about that plaintiff during

an investigation without a showing

that the officer interfered with the

plaintiff ’s right to a fair trial.

The Eighth Circuit’s expansive interpretation of

the manufacturing-false-evidence cause of action also

conflicts with precedent—of other lower courts and of

this Court—on when an officer’s investigatory conduct

can sustain a Section 1983 action.

Because it treated manufacturing of false evidence

as a substantive-due-process cause of action, the

Eighth Circuit allowed Respondents to recover all

damages resulting from their criminal convictions

based solely on a showing that the “manufacturing” occurred during the investigation. This creates a split of

authority that warrants this Court’s review.

Manufacturing false evidence does not, itself, violate the Constitution. See Buckley v. Fitzsimmons, 509

U.S. 259, 281 (1993) (“I am aware of no authority for

the proposition that the mere preparation of false evidence, as opposed to its use in a fashion that deprives

someone of a fair trial or otherwise harms him, violates

the Constitution.”) (Scalia, J., concurring). It is only

some uses of false evidence that create a constitutional

violation. See, e.g., Fields v. Wharrie, 740 F.3d 1107,

1114 (7th Cir. 2014); Wray v. City of New York, 490 F.3d

31

189, 193 (2d Cir. 2007). The Eighth Circuit’s focus on

collection rather than use departs from precedent from

other jurisdictions in two ways.

First, by focusing on collection, rather than use,

the Eighth Circuit departs from precedent that requires accounting for the role of the criminal-justice

system, and its procedural design and protections,

when determining whether to hold a law-enforcement

officer responsible for consequences resulting from the

criminal-justice system.

A cause of action for manufacturing false evidence

is, in essence, a challenge to the fairness at the procedural stage when the evidence was used. Because of

the structural design of the criminal-justice system,

courts have held that a law-enforcement officer only

can be responsible for the results of a criminal conviction when the officer either (1) deceived the independent actors in the criminal-justice system; or (2) coerced

those independent actors.10 When the plaintiff seeks

compensation for the plaintiff ’s conviction, this requires a showing that the officer interfered with the

fair-trial rights of the plaintiff. Courts differ about

whether this requirement is treated as part of the

conduct that must be proven or whether it is part of

the proximate-causation analysis. Zahrey v. Coffey, 221

F.3d 342, 350 (2d Cir. 2000) (collecting cases). The

10

See, e.g., Hernandez-Cuevas v. Taylor, 723 F.3d 91, 100

(1st Cir. 2013); Alexander v. City of S. Bend, 433 F.3d 550, 555

(7th Cir. 2006); Barts v. Joyner, 865 F.2d 1187, 1195 (11th Cir.

1989).

32

Eighth Circuit deepened the circuit split by treating

such a showing as altogether unnecessary.

There is no evidence that the Officers deceived any

justice-system actors about the truth or falsity of the

statements obtained from Respondents, or about the

techniques used to obtain those statements. Prosecutor

Smith had access to all relevant evidence and decided

whether to move forward with charges. App. 304. Nor

is there evidence that Respondents or their counsel

lacked any information necessary to impeach or discredit the statements in question. See, e.g., App. 359.

The Eighth Circuit’s opinion rests on a novel premise

that law-enforcement officers can be held liable for taking false statements, even if the facts showing that

those statements are false are equally available to the

prosecutor, the criminal defendant, and defense counsel.

Second, because it focused on obtaining, rather

than using, false evidence, the Eighth Circuit split

from other courts that have recognized that a Section

1983 plaintiff who has pleaded to charges cannot recover damages resulting from the plaintiff ’s criminal

conviction without showing that the plea was not

knowing and voluntary.

Although the Eighth Circuit found that Respondents’ pleas were voluntary, it still allowed Respondents

to recover all damages resulting from their criminal

convictions based on their complaints about the investigatory conduct. App. 31.

33

This departs from the law in other jurisdictions,

which recognizes that by entering a plea, a criminal

defendant waives all rights connected to the criminaltrial process. See, e.g., Becker v. Kroll, 494 F.3d 904, 924

(10th Cir. 2007). The Court should clarify whether a

plaintiff who has freely and voluntarily pleaded to

criminal charges but is later exonerated can bring a

Section 1983 claim against law-enforcement officers

arguing that, if the officers had never taken statements incriminating the subject, the subject would not

have pleaded. App. 96.

III. Review is warranted because the Eighth

Circuit affirmed, in departure from this

Court’s established precedent, jury verdicts against the County based on DeWitt’s

role as a final policymaker even though

DeWitt had been exonerated by the jury of

individual liability and conspiracy.

This case raises the important question of when

municipal liability may be imposed based on the role

of an exonerated final policymaker. The jury’s verdicts

were in favor of DeWitt, the only identified policymaker.11 He was found to have no direct involvement

in the claimed constitutional violations. The jury also

11

The County has consistently maintained that a Nebraska

sheriff is a policymaker for the state, not the County, under this

Court’s decision in McMillian v. Monroe County, Alabama, 520

U.S. 781 (1997). The Eighth Circuit held to the contrary in its first

2015 decision, despite acknowledging that the County has no

mechanism for exercising control over the sheriff. Dean v. Cty. of

Gage, Nebraska, 800 F.3d 945, 955 (8th Cir. 2015).

34

found no conspiracy. Yet the jury found the County liability based on DeWitt’s role.

In affirming the jury verdicts against the County

under these circumstances, the Eighth Circuit eroded

the prohibition of respondeat superior liability set forth

in Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) by

expanding the narrow circumstances in which Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) allows

for municipal liability based on an individual policymaker’s decision. First, the culpability requirements

set forth in 42 U.S.C. § 1983, and County Comm’rs of

Bryan County, Ok, v. Brown, 520 U.S. 397 (1997) for

municipal liability cannot be reconciled with the conspiracy verdicts. Second, there is no evidence of a

causal link between DeWitt’s actions and any constitutional violations. Third, after charges were filed,

DeWitt did not have the final decision-making authority to stop the prosecution. Pembaur, 475 U.S. at 483

and City of St. Louis v. Praprotnik, 485 U.S.112, 123

(1988.) This Court’s review is necessary to stop an impermissible expansion of municipal liability.

A. The verdicts bar a finding of culpability.

Because all the verdicts favored DeWitt, municipal liability cannot be based on DeWitt’s direct involvement in any deprivation of rights. The path to

municipal liability is severely restricted when the final

policymaker is not directly involved with a deprivation

of rights. “Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless

35

has caused an employee to do so, rigorous standards of

culpability and causation must be applied to ensure

that the municipality is not held liable solely for the

action of its employees.” Brown, 520 U.S. at 405. Not

only do the verdicts make direct-involvement liability

unavailable, but the implications of the conspiracy verdict also limit the path toward finding sufficient culpability.

The verdict exonerating DeWitt of conspiracy

means that he could not have knowingly agreed to or

knowingly come to an understanding with the Officers

to deprive Respondents of their rights. Given the

boundary-less nature and ill-defined contours of the

reckless investigation and manufacture of false evidence claims, there is no path available to find that

DeWitt did not participate in a conspiracy to commit

those violations, but that he still had the requisite culpability to impose municipal liability. The Eighth Circuit justified the verdicts by suggesting that the jury

based County liability on DeWitt’s policymaker/managerial role as opposed to his direct-investigative role.

App. 10. Distinguishing between investigative and

managerial functions may reconcile the County liability verdicts with the verdicts in favor of DeWitt on

reckless investigation and manufacture of false evidence, but this distinction does not account for the conspiracy verdicts.

Because the conspiracy verdict means that DeWitt

cannot have agreed to a constitutional violation, his

managerial actions cannot have been made with sufficient culpability to support municipal liability. In

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Praprotnik, this Court held that the failure to investigate decisions made by subordinates does not constitute policymaking. 485 U.S. at 130.

Simply going along with discretionary decisions made by one’s subordinates, however, is

not a delegation to them of the authority to

make policy . . . But the mere failure to investigate the basis of a subordinate’s discretionary decisions does not amount to a delegation

of policymaking authority, especially where

(as here) the wrongfulness of the subordinate’s decision arises from a retaliatory motive or other unstated rationale.

Id. at 130.

The Eighth Circuit failed to reconcile the conspiracy verdicts with the municipal-liability requirement

that there be deliberate indifference on the part of

DeWitt to the known consequences of his actions.

Brown, 520 U.S. at 405. If a facially lawful municipal

action is alleged to have caused an employee to deprive

a plaintiff of rights, then the plaintiff must prove that

the municipal action was taken with deliberate indifference as to its known consequences. Given the verdicts in his favor, DeWitt’s own actions must have been

facially lawful. Thus, a showing of deliberate indifference is required for municipal liability. Id. at 407.

Because this is a single-incident case, not a pattern case, evidence that DeWitt should have known

that the investigation was resulting in constitutional

violations and thus should have intervened is not

enough to show deliberate indifference. The reason a

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sufficient pattern of past violations may create an exception to the general rule that inaction is not policymaking is that failure to respond to known violations

can rise to the level of a deliberate decision. City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985) (plurality). But a single multi-suspect investigation cannot

establish that DeWitt had enough knowledge that his

failure to intervene constituted deliberate indifference,

especially when the jury absolved DeWitt of a conspiracy.

The Eighth Circuit’s failure to account for the conspiracy verdicts brings it out-of-step with the culpability requirements of Monell, Praprotnik, and Brown.

B. The Eighth Circuit failed to identify

“managerial” conduct that satisfies applicable causation requirements.

Because the jury found DeWitt had no direct involvement in the deprivation of rights, the causation

requirements are high. Brown, 520 U.S. at 411. The

causal link between the “managerial” decision and the

specific violation must be strong. It is not enough to

identify conduct that can be attributable to the County,

it must be proven that “through its deliberate conduct,

the municipality was the ‘moving force’ behind the injury alleged.” Id., 520 U.S. at 404.

The Eighth Circuit suggested that the jury could

have found DeWitt made policymaking decisions “by

giving oxygen” to a stalled investigation or by allowing

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interrogations to continue in spite of statements that

contradicted crime scene evidence that could serve as

causal links to Respondents’ deprivation of rights. App.

11. These decisions do not establish a causal link because they were not the moving force behind the deprivation of rights. DeWitt’s actions must have been the

catalyst for the deprivation. It is insufficient for

DeWitt’s actions to be a “but for” or only a contributing

factor. Pembaur, 475 U.S. at 482, n. 11; Brown, 520 U.S.

at 410.

There is no evidence that DeWitt instructed the

Officers to interview witnesses in a way that violated

constitutional rights. Municipal liability cannot be

based on DeWitt’s knowledge about the interrogations

if there is nothing unconstitutional about how those

interrogations were conducted. There is no constitutional requirement that an interrogation must stop

when a suspect’s account does not match crime scene

evidence. Nor is it a constitutional violation to advise

suspects to relax or dream. Without a causal link between DeWitt’s policymaking and a specific constitutional violation there can be no Monell liability. Brown,

520 U.S. at 404. And DeWitt cannot exhibit deliberate

indifference to a constitutional right that has not been

clearly established. Brown, 520 U.S. at 410-411; Alvarez, 904 F.3d at 391-392.

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C. The decisions relied on by the Eighth

Circuit were not in DeWitt’s power, as

final policymaker, to make at the time

they were made.

The Eighth Circuit did not take into account at

what point in the criminal process DeWitt was no

longer the final policymaker. While Pembaur permits

municipal liability based on a decision made by an individual policymaker, it limits such liability to circumstances in which the decision-maker has final

authority. Pembaur, 475 U.S. at 481-483. After Prosecutor Smith filed criminal complaints against Respondents, DeWitt had no authority to dismiss charges

against any Respondent or call a halt to the judicial

process. Neb. Rev. Stat. §§ 29-1602, 23-1201(2) and 231710.

In its 2015 opinion, the Eighth Circuit held that

County liability could not hinge on decisions made by

Prosecutor Smith, as a final policymaker, because

Prosecutor Smith took no action that violated the Constitution. App. 52-53; 103-104. Despite this, the period

the jury considered went well beyond the investigative

phase, when DeWitt had final policymaking authority.

But in evaluating the County’s liability, the Eighth Circuit failed to distinguish between investigative decisions for which DeWitt was the final policymaker and

decisions only Prosecutor Smith could make, for example dismissal of charges.

The Eighth Circuit said the jury could have found

municipal liability based on DeWitt’s knowledge that

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the blood evidence did not match the crime scene evidence when he approved arrests. App. 11. However, it

is undisputed that Respondents’ blood was not typed

until after they were arrested and charges were filed.

App. 16-17; 152-153; 159; 183; 189; 206; 210-211;

255-257. At the time Respondents’ blood type became

known, Prosecutor Smith was the final decision-maker

on whether to continue with the prosecution.

The Eighth Circuit also held that the County could

be liable because DeWitt “insulated and protected” the

investigation from criticism by BPD Officer Stevens.

App. 12. However, the events the Eighth Circuit points

to regarding Stevens occurred at a meeting in the presence of Prosecutor Smith and after White, Taylor, and

Winslow had all been charged. App. 195-197. DeWitt,

as Sheriff, had no authority to remove Stevens, who

was not a County employee, from the investigation.

Only Prosecutor Smith could decide whether he would

continue with the prosecution despite Stevens’ criticism. And only Prosecutor Smith could decide whether

he would continue to use the BPD for any additional

investigation necessary for the prosecution.

The Eighth Circuit also ignored the difference between DeWitt’s involvement in pre-charge interviews,

when he acted as final policymaker, and post-charge

interviews, when the prosecutor had final policymaking authority. Neb. Rev. Stat. §§ 23-1201(2), 23-1710;

Buckley, 509 U.S. at 273-275. DeWitt sat in, along with

Prosecutor Smith, on pretrial meetings with the Respondents and their attorneys, and other witnesses for

purposes of trial preparation. App. 222-224; 226-228;

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244-245; 262; 293. But municipal liability cannot be

based on those meetings because DeWitt lacked the final authority to dismiss charges. Pembaur, 475 U.S. at

483.

In conclusion, because the jury exonerated DeWitt

of direct involvement in any deprivation of Respondents’ rights and of conspiracy, the path to municipal liability is extremely narrow. The Eighth Circuit erred

in affirming the jury verdicts against the County on

the basis that they were supported by DeWitt’s actions

in starting the investigation, allowing the investigation to continue, approving arrests, or allowing interrogation tactics. None of these actions invited or

directed the officers to engage in unconstitutional action. Nor do they show that DeWitt had the specific

knowledge that the Officers’ conduct was unconstitutional. The verdicts against the County contravene

Monell, Pembaur, Praprotnik, and Brown. The Court

should review the Eighth Circuit decision, which impermissibly expands municipal liability.

------------------------------------------------------------------

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CONCLUSION

Petitioners respectfully request that the Court

grant certiorari.

Respectfully submitted,

JENNIFER M. TOMKA

AMEN LAW

P.O. Box 21855

Lincoln, NE 68542

402.525.1572

jtomka@jenamenlaw.com

PATRICK T. O’BRIEN

GALTER & O’BRIEN

311 S. 13th Street

Lincoln, NE 68502

402.475.0811

pto@neb.rr.com

ELIZABETH RYAN CANO

MELANIE J. WHITTAMORE-MANTZIOS

Counsel of Record

WOLFE, SNOWDEN, HURD, LUERS & AHL, LLP

1248 “O” Street, Suite 800

Lincoln, NE 68508

402.474.1507

ecano@wolfesnowden.com

mmantzios@wolfesnowden.com