120 F.3d 92 (8th Cir. 1997), 96-3398, Conrod v. Davis

Docket Nº:96-3398.
Citation:120 F.3d 92
Party Name:Ernest CONROD, Jr., Appellee, v. Roger DAVIS, Appellant.
Case Date:July 17, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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120 F.3d 92 (8th Cir. 1997)

Ernest CONROD, Jr., Appellee,


Roger DAVIS, Appellant.

No. 96-3398.

United States Court of Appeals, Eighth Circuit

July 17, 1997

Submitted March 10, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 3, 1997.

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Timothy W. Anderson, Assistant Attorney General, Jefferson City, MO, argued (Theodore A. Bruce, Assistant Attorney General, on the brief), for Appellant.

Peter L. Lejeune, St. Louis, MO, argued, for Appellee.

Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON, [*] District Judge.

MAGNUSON, District Judge.

This action brought, pursuant to 42 U.S.C. § 1983, arises out of the arrest and search of Appellee Ernest Conrad ("Conrad") by Appellant Roger Davis ("Davis"), a Missouri State Highway Patrolman. The case previously was tried before a jury, with Conrad representing himself pro se. The jury returned a verdict in favor of Davis. During the trial, the district court denied Davis's Motion for Verdict as a Matter of Law. This Court later reversed the jury's verdict based on Conrad's lack of counsel and remanded the case for a new trial. Based on the testimony presented at the first trial, Davis moved for summary judgment, arguing that he was entitled to qualified immunity and that Conrad was estopped from raising his claims again in federal court. The district court denied Davis's motion on the grounds

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that the court's previous denial of the Motion for Verdict as a Matter of Law was the law of the case and denied the motion. Davis appeals the decision of the district court. We reverse and enter judgment in favor of Appellant.


Appellant Davis is a corporal in the Missouri State Highway Patrol. On the evening of December 24, 1988, Davis was working on Interstate 88 in Scott County, Missouri. Using his radar, Davis detected Conrad driving seventy-six miles per hour in a sixty-five mile per hour zone. Conrad was driving a Corvette with Mississippi license plates. The parties dispute whether Conrad was traveling with his stepfather as a passenger. According to trial testimony, each local judge in Missouri sets the policy for when bond must be accepted for speeding tickets. The Scott County judge had set a policy that drivers from out of state who are stopped for speeding must post bond. Davis was not authorized to accept bond because those duties rested exclusively with the local sheriff. Knowing that Conrad would have to post bond, Davis arrested Conrad for his speeding violation. Arrest is authorized for the offense of speeding in Missouri.

Davis contends that he asked Conrad for permission to search the vehicle and that Conrad consented. Conrad maintains that he refused permission. Davis then searched Conrad and the vehicle. At the first trial, Davis testified that Conrad had a bulge in his right front pants pocket. A search of Conrad revealed $6,050 in cash. In searching the vehicle, Davis found $4,000 in cash in a wicker briefcase. Davis asked Conrad where he got the money. According to Davis, Conrad told him that the money was rent money he collected for his uncle in St. Louis for six rental properties in Mississippi. 2

Conrad's mother was also traveling with Conrad but drove in a separate vehicle. Conrad's mother stopped her vehicle by Conrad's when she realized that Conrad had been stopped. Upon observing the stopped vehicle, Davis approached Conrad's mother and asked her about Conrad's uncle. According to Davis, Conrad's mother told Davis that Conrad's uncle did not own any property in Mississippi. 3

According to Davis, he asked Conrad to drive his vehicle to the sheriff's office. Conrad contends that Davis handcuffed him and placed him in his squad car and that his stepfather drove Conrad's vehicle to the sheriff's office. While somewhat unclear from the parties' submissions, it appears that Davis retained custody of Conrad's possessions, including the money, during the trip to the sheriff's office.

Once at the sheriff's office, Conrad's vehicle was driven to a car wash to get out of the rain. Davis asked Officer Greg Kenley to have a drug-sniffing dog search the interior of Conrad's car. The dog found no contraband in the car. The officers then had the dog sniff the money. According to Davis, he placed the money in an envelope and placed the envelope in a small room used for the test. Davis testified at trial that Kenley told him that the dog "alerted" to the money indicating the presence of drugs. Conrad contends that he, along with his mother and stepfather, were in the room for the dog test and that the dog had no reaction to the money. Davis testified that Kenley conducted the canine test pursuant to police policy and that no one else was in the room with the dog.

Davis gave Conrad a ticket for speeding and a receipt for the money taken from him. Conrad later paid the speeding ticket. Davis turned the money over to the Drug Enforcement Agency ("DEA") who later successfully initiated forfeiture proceedings.

This case originally went to trial in February 1994, resulting in a jury verdict for Davis. We reversed the verdict because the district court had not appointed counsel for Conrad. On remand, Davis moved the district court for summary judgment. Relying

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on the prior trial testimony, Davis contended that he was entitled to qualified immunity and that Conrad was collaterally estopped from bringing his claims. The district court denied Davis's motion, believing that its previous denial of a Motion for a Verdict as a Matter of Law during the first trial precluded it from granting Davis's motion. Davis appeals the decision of the district court and contends that he is entitled to summary judgment on two grounds: (1) that he is entitled to qualified immunity; and (2) that Conrad is collaterally estopped from bringing his claims.


Conrad does not address the district court's decision regarding the law of the case doctrine, apparently conceding the appropriateness of review of that decision. The doctrine of the "law of the case" is a discretionary tool permitting a district court to effectively manage the legal issues arising during litigation. See Copeland v. Merrill Lynch & Co., 47 F.3d 1415, 1424 (5th Cir.1995). It does not deprive the district court of the ability to reconsider earlier rulings. See id. Where the district court believes that an earlier decision was reached in error, it may revisit the decision "to avoid later reversal." Lovett v. General Motors Corp., 975 F.2d 518, 522 (8th Cir.1992) (citation omitted). To the extent that the district court believed that it lacked the authority to review its earlier decision, such a belief was erroneous.

However, even if the "law of the case" doctrine had precluded the district court from considering the merits of Davis's motion, we have the authority to review the denial of that motion. As the Seventh Circuit has held, "[l]aw of the case ... does not block a superior court from examining the correctness of an earlier decision." Avitia v. Metropolitan Club of Chicago, Inc., 924 F.2d 689, 690 (7th Cir.1991). The Supreme Court has made it clear that a decision denying qualified immunity is appealable prior to the commencement of trial. See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Wright v. South Ark. Regional Health Center, Inc., 800 F.2d 199 (8th Cir.1986) (reversing district court's denial of summary judgment on appeal brought before commencement of trial). Therefore, we shall address the merits of Davis's appeal.


This Court reviews de novo a lower court's denial of summary judgment. See Hardin v. Hussmann Corp., 45 F.3d 262, 264 (8th Cir.1995). The Federal Rules of Civil Procedure provide that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is warranted where a party fails to make a showing sufficient to establish an essential element of that party's case, and on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The Supreme Court has extended this immunity to state police officers, see Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), and it provides protection "to all but the plainly incompetent or those who knowingly violate the law." Id.


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