Dean v. Searcey

893 F.3d 504

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 Shelden, Plaintiffs-Appellees

v.Burdette SEARCEY, Dep., in his official and individual capacities; Wayne R. Price, PhD., in his official and individual capacities; County of Gage, Nebraska, a Nebraska political subdivision, Defendants-Appellants

Ryan L. Timmerman, Personal Representative of the estate of Jerry O. DeWitt, Defendant

The Nebraska Association of County Officials; Nebraska Sheriffs Association ; National Sheriff's Association; International Municipal Lawyers Association ; The Nebraska Intergovernmental Risk Management Association, Amici on Behalf of Appellant(s)

No. 16-4059

United States Court of Appeals, Eighth Circuit.

Submitted: November 16, 2017

Filed: June 11, 2018

Rehearing and Rehearing En Banc Denied July 17, 2018

Counsel who presented argument on behalf of the appellants was Melanie J. Whittamore-Mantzios, of Lincoln, NE. The following attorneys appeared on the appellant brief; Jennifer M. Tomka, of Lincoln, NE., Elizabeth Ryan Cano, of Lincoln, NE., Patrick T. O'Brien, of Lincoln, NE.

Counsel who presented argument on behalf of the appellees was Jeffry D. Patterson, of Lincoln, NE.

The following attorneys appeared on the appellee brief of White, Gonzalez, Winslow, and Taylor; Robert F. Bartle, of Lincoln, NE., Douglas J. Stratton, of Norfolk, NE.

The following attorney appeared on the appellee brief of Dean; Herbert J. Friedman, of Lincoln, NE.

The following attorneys appeared on the appellee brief of Shelden; Maren Lynn Chaloupka, of Scottsbluff, NE., Matthew Kosmicki, of Lincoln, NE.

The following attorneys appeared on the amicus brief of the Nebraska Intergovernmental Risk Management Association, the Nebraska Association of County Officials, and the Nebraska Sheriffs' Association; David J.A. Bargen, of Lincoln, NE., Sheila A. Bentzen, of Lincoln, NE.

The following attorney appeared on the amicus brief of the International Municipal Lawyers Associations and the National Sheriffs' Association; Lanny Dwight Richmond, II, of North Little Rock, AR.

The following attorney appeared on the amicus brief if the ACLU of Nebraska; Amy Anne Miller, of Lincoln, NE.

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

SHEPHERD, Circuit Judge.

This case is familiar to us, as it is to Nebraskans and much of the nation. It returns after three prior opinions by this Court, two trials, and, now, one jury verdict that is contested on this appeal. We are asked here, in large part, to sweep the pieces off the board—to overturn our prior rulings—in order to vacate the jury's verdict. We decline to do so. And, after careful examination of the remaining claims on appeal, we find no other reason to disturb the verdict or rulings by the district court.¹ Thus, we affirm.

I.

The underlying facts in this case have been discussed at length in past appeals. See 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, 807 F.3d 931 (8th Cir. 2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 2490, 195 L.Ed.2d 823 (2016). We provide a brief procedural summary to orient our discussion.

Appellees are six individuals—Joseph White, Ada JoAnn Taylor, Thomas Winslow, Debra Shelden, Kathleen Gonzalez, and James Dean—who were arrested for the gruesome February 1985 rape and murder of Helen Wilson in Beatrice, Nebraska.² All pled guilty to various charges in relation to the crime with the exception of Joseph White—he went to trial and was convicted for first-degree felony murder. Shelden, Gonzalez, and Dean served around five years; the rest served nearly twenty years.³ Appellees were exonerated by DNA evidence in 2008, and the State of Nebraska formally pardoned them in 2009. That same year, they filed this lawsuit on the grounds that their deprivations of liberty were preventable: they argued that their arrests and imprisonment were the result of a reckless investigation, manufactured false evidence, and coerced confessions. They assert claims under 42 U.S.C. § 1983, as well as parallel conspiracy claims under 42 U.S.C. § 1985, against Gage County (where Beatrice is located) and three individuals in the Gage County's Sheriff Department—Sheriff Jerry DeWitt, Deputy Burdette Searcey, and Deputy Wayne Price.⁴

On prior appeals, we narrowed the scope of Appellees' claims against Sheriff DeWitt and Deputies Searcey and Price to reckless investigation, manufacture of false evidence, and conspiracy. We also found that the officials were not entitled to qualified immunity. The case then proceeded to trial where it initially ended in a mistrial. After that, the district court, pursuant to Fed. R. Civ. P. 54(b), certified its rulings on county liability and the conspiracy claims for appellate review. We reversed the district court on both claims, finding that Gage County could be liable for acts committed under policies instituted by Sheriff DeWitt, as county sheriff, and that the conspiracy claims could go forward.⁵

Appellees once again proceeded to trial after three interlocutory opinions from this Court. This time the trial ended in a verdict and awards for each of the Appellees totaling approximately $28.1 million. The verdict is summarized in the chart below:

                                  Dean         White        Gonzalez     Winslow      Taylor    Shelden
Searcey (Reckless                 Dean         White        Gonzalez     Winslow      Taylor    Shelden
Investigation)
Price (Reckless                   Dean         Price        Price        Price        Taylor       Shelden
Investigation)
DeWitt (Reckless                  DeWitt       DeWitt       DeWitt       DeWitt       DeWitt       DeWitt
Investigation)
Searcey (Manufactured Evidence)   Searcey      White        Gonzalez     Winslow      Taylor       Searcey
Price (Manufactured               Dean         White        Gonzalez     Price        Price        Shelden
Evidence)
DeWitt (Manufactured Evidence)    DeWit        DeWitt       DeWitt       DeWitt       DeWitt       DeWitt
Searcey (Conspiracy)              Searcey      Searcey      Searcey      Searcey      Searcey      Searcey
Price (Conspiracy)                Price        Price        Price        Price        Price        Price
DeWitt (Conspiracy)               DeWitt       DeWitt       DeWitt       DeWitt       DeWitt       DeWitt
County Liability                  Dean         White        Gonzalez     Winslow      Taylor       Shelden
Damages                           $2,190,000   $7,300,000   $2,190,000   $7,300,000   $7,300,000   $1,825,000

On this appeal, Gage County, Searcey, and Price raise four distinct claims in their opening brief, with the continued viability of our prior rulings being their primary focus.⁶ Cf. Jenkins v. Winter, 540 F.3d 742, 751 (8th Cir. 2008) ("Claims not raised in an opening brief are deemed waived."). Gage County argues that judgment as a matter of law should be entered for it because our prior opinion on its liability was erroneous and, in any case, liability is not supported by the trial record. The deputies argue much the same with regards to qualified immunity. Failing that, the Appellants argue for a new trial because of (1) allegedly prejudicial behavior by Appellees' counsel; and (2) an alleged failure of the district court to properly define "reckless investigation" in the jury instructions. We address each claim in turn.

II.

As noted above, Gage County launches a two-prong attack on its liability. It first argues that we are not bound by Dean and that we should re-examine that ruling. Alternatively, even if Dean applies, Gage County asserts that the evidence was insufficient to find it liable.

A.

According to Gage County, we are not bound by our holding in Dean under the law-of-the-case doctrine because that decision applied controlling law incorrectly. As a reminder, Dean held that Nebraska county sheriffs "made final policy with regard to law enforcement investigations and arrests." 807 F.3d at 941. For that reason, we held that it was for the jury to decide in this case "whether Sheriff DeWitt's decisions caused the deprivation of rights at issue by policies which affirmatively command that it occur." Id. at 942 (internal quotation marks omitted).⁷

Our decision in Dean is not simply law of the case. It is the law of this circuit. Hence, we would only re-examine the decision if it were "repudiated or undermined by later authority, such as a statute, an intervening Supreme Court decision, or en banc decision." Bryan A. Garner et al., The Law of Judicial Precedent 38 (West 2016). It is not. Gage County simply seeks to re-litigate Dean on this appeal. So, the traditional rule applies: "as a decision of a panel ... [ Dean ] binds other panels." Jenkins by Agyei v. Missouri, 73 F.3d 201, 205 (8th Cir. 1996).⁸

B.

Next, Gage County argues that the evidence is insufficient to support a finding of liability. Our review of jury verdicts is extremely deferential given "the danger that the jury's rightful province will be invaded when judgment as a matter of law is misused." Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 805 (8th Cir. 2017) (internal quotation marks omitted). Thus, we only overturn a verdict when " 'the evidence is such that, without weighing the credibility of witnesses, there is a complete absence of probative facts to support the verdict.' " Id. (quoting Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 634 (8th Cir. 1998) ). With these principles in mind, we examine Gage County's arguments.

A municipal entity, like Gage County, "may not be found liable unless action pursuant to official municipal policy of some nature caused a constitutional tort." S.M. v. Lincoln Cnty., 874 F.3d 581, 585 (8th Cir. 2017) (internal quotation marks omitted). Gage County contends that there is insufficient evidence of causation, arguing that "[t]here is no...