382 F.3d 792 (8th Cir. 2004), 03-2861, Avalos v. City of Glenwood

Docket Nº:03-2861.
Citation:382 F.3d 792
Party Name:Sylvia AVALOS, Mother and next friend of Nicholas Vasquez, a minor and incapacitated person; Nicholas Vasquez; Miguel "Michael" Vasquez, Plaintiffs/Appellees, v. CITY OF GLENWOOD; City of Council Bluffs, IA; Mills County, IA; Harrison County, IA; Pottawattamie County, IA, Defendants/Appellants, Municipality A, Agency A; Agency B, Defendant, Southwe
Case Date:September 02, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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382 F.3d 792 (8th Cir. 2004)

Sylvia AVALOS, Mother and next friend of Nicholas Vasquez, a minor and incapacitated person; Nicholas Vasquez; Miguel "Michael" Vasquez, Plaintiffs/Appellees,


CITY OF GLENWOOD; City of Council Bluffs, IA; Mills County, IA; Harrison County, IA; Pottawattamie County, IA, Defendants/Appellants,

Municipality A, Agency A; Agency B, Defendant,

Southwest Iowa Multijurisdictional Drug Task Force, Defendant/Appellant,

Unknown/Unnamed Defendants, Sued as John Doe I, John Doe II, John Doe III, John Doe IV and Jane Doe; Defendants,

Gerald Wake, also known as Bo Wake, Defendant/Appellant,

Dirk Lincoln, Defendant.

No. 03-2861.

United States Court of Appeals, Eighth Circuit

September 2, 2004

Submitted: April 13, 2004.

Rehearing and Rehearing En Banc Denied Oct. 7, 2004.

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Scott J. Beattie, argued, Des Moines, IA, for appellants.

John A. Kinney, argued, Omaha, NE (Gail E. Boliver and C.G. Jolly, on the brief), for appellees.


RILEY, Circuit Judge.

Detective Gerald Wake (Detective Wake) and several municipal defendants appeal the district court's denial of their motions for summary judgment based on qualified immunity to Detective Wake, and on the merits of the plaintiffs' substantive due process claims against the municipal defendants. Concluding Detective Wake is entitled to qualified immunity and the municipal defendants are entitled to summary judgment, we reverse.


During the summer of 2000, sixteen-year-old Jessica Whetsel (Jessica) had a relationship with eighteen-year-old Michael Vasquez (Michael). Jessica told Michael her stepfather, Karl Voll (Karl), was likely to "do something to him" if Michael "hurt" her. Michael eventually ended the relationship.

On April 5, 2001, Glenwood High School officials caught Jessica with small plastic bags containing a red substance. Believing the substance to be drugs, school officials called the Glenwood Police, and Captain Dirk Lincoln (Captain Lincoln) went to the school. School officials also called Jessica's mother, Maria Voll (Maria), to the school. Jessica told Captain Lincoln the substance was opium, but she would not divulge the source. After Maria stated she would not answer questions until Karl arrived, Jessica and Maria drove to the Glenwood Police Department to wait for Karl.

Pursuant to Glenwood Police Department practice, Captain Lincoln called the Southwest Iowa Multijurisdictional Drug Task Force (Task Force) because of the suspicion drugs were involved. Detective Wake, a Council Bluffs police officer and Task Force member, took the call. Detective Wake and Detective Robert Daley (Detective Daley) of the Pottawattamie County Sheriff's Department, another Task Force member, traveled to Glenwood to investigate.

Karl arrived before the Task Force officers. Captain Lincoln advised Karl of the situation, and Karl asked to see the substance found on Jessica. Captain Lincoln told Karl it had tested slightly positive for heroin. Karl became very upset. When alone with Maria and Jessica, Karl asked Jessica about the substance. Jessica said it was opium and that she got it from Michael and Nicholas Vasquez (Nicholas). Michael and Nicholas are brothers.

After Captain Lincoln reentered the room, Karl asked him what charges Jessica would face. Captain Lincoln stated Jessica could be charged with possessing a controlled substance with intent to deliver and trafficking. Noting the Task Force members would arrive shortly, Captain Lincoln told Karl it would be in his family's best interest to talk to the Task Force members who could "make things disappear." The Task Force members arrived and tested the substance, which again tested slightly positive for heroin.

The Task Force members then put pressure on Jessica in an effort to learn the source of the drugs. Detective Daley informed Jessica of the seriousness of the situation and that Jessica could face an automatic sentence of twenty-five years. Detective Wake then analogized the situation

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to a methamphetamine transaction, telling Jessica a person could get a forty-year sentence for selling methamphetamine, but the sentence could be as high as eighty years if the offense were committed on school property. Despite the statements of Detective Daley and Detective Wake, in Karl's post-arrest statement to police, he questioned whether he could have "comped an attorney" and "at the utmost got [Jessica] probation" for the offense.

The Task Force members told the family they wanted to know the source of the substance, and the Volls again asked to speak privately with Jessica. Jessica said she obtained the substance from Nicholas. Jessica told Maria and Karl she had agreed to pay for the substance and to sell some of it at school. Karl and Maria gave this information to the officers, who asked if the Volls would assist in a police investigation. Karl hesitated until Maria told him a white powdery substance Karl had concluded was a cleaning product had been sold to Jessica by the Vasquez brothers, who had told Jessica the substance was a drug. Karl was then willing to help the police. Karl suggested he go to the Vasquez home to try to buy drugs. At some point during the interview, Karl also said he wanted to "kick the shit out of those boys and take matters into his own hands." Detective Daley responded, "maybe in a perfect world, you could get away with it. But we're here. Let us take care of it." Some officers chuckled in response to Karl's statements, and one officer said, "sounds like a good idea to me," but the officers then told Karl, at length, they did not want him involved in the investigation or the proposed transaction with the Vasquezes.

The officers decided to use Maria rather than Karl, because she was more calm and because of their concern Karl would make threats and taint the investigation. In exchange for Jessica not being charged with possession of a controlled substance, Maria agreed to be a confidential informant (CI). The officers fitted Maria with a recording device (wire) and gave her two hundred dollars cash to pay the Vasquezes what Jessica owed. Detective Daley stated he wished the officers could just turn Karl loose to take care of the situation. Detective Wake laughed at the suggestion. Karl, who was anxious and angry, responded "give me five minutes, follow me after five minutes, and we'll call it a day." Detective Daley told Karl the officers could not do that, that they would not use Karl, and that Karl should not get involved. The officers processed Maria as a CI. They did not conduct a background check on Karl, because he was not going to be used as a CI. After Karl calmed down, the officers agreed to allow Karl to drive Maria to the Vasquez apartment. The officers specifically told Karl to stay in the car.

When Karl and Maria arrived at the Vasquez apartment, against the officers' instructions, Karl went to the door with Maria. Karl made two tape-recorded threats to Michael, Nicholas, and Jeremy Hogan (Hogan), a brother of the Vasquezes, including a threat that he "will kill something" if they give Jessica "anything other than to cop a buzz," and made another tape-recorded threat, outside the Vasquez brothers' presence, to kill someone. Karl did not strike or harm Nicholas or Michael. After the transaction, Detective Wake rebuked Karl for going to the door against the officers' directions. Karl apologized.

Following the encounter, Michael, Nicholas, and Hogan were arrested. Nicholas possessed pre-serialized currency and a small rock of the same substance Jessica had earlier claimed was opium. Michael

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and Nicholas were charged with conspiracy to distribute a controlled substance or simulated controlled substance. Sylvia Avalos (Avalos), Michael's and Nicholas's mother, paid $500 to bail Nicholas out of jail about two weeks later. Hogan testified his brothers were scared, and Michael and Hogan claimed they told the officers they were afraid of Karl. Neither Michael, Nicholas, nor Hogan ever lodged a written complaint against Karl.

After Michael, Nicholas, and Hogan were arrested, Jessica no longer lived with the Volls. Jessica was placed in a juvenile facility, then ran away from the facility, and was later expelled from school. Rumors circulated that the Vasquezes threatened to kidnap Jessica and physically harm her. Michael told Jessica he did not care about what had happened, and the Volls "were going to get what was coming to them through the cops." Jessica informed the Volls of these statements.

Maria and Karl called Detective Wake a few weeks after April 5, 2001. The Volls were concerned because Jessica had run away. Karl thought Jessica was still seeing the Vasquezes, and Maria and Karl had heard the Vasquezes planned to kidnap and assault Jessica. Karl ended the conversation by stating guns were not his "thing anymore but if I have to I'll get me one and I will take care of the problem myself." Detective Wake told Karl to stay away from the Vasquezes and discouraged Karl from doing anything on his own. Detective Wake checked with some informants, who had not heard about any threats made by the Vasquezes. Detective Wake also did not think he could arrest Karl and did not think Karl had the means to carry out his threat. Detective Wake had heard other citizens make threats on a routine basis, but rarely did the threats result in action.

On May 11, 2001, the Volls received subpoenas to testify against Michael. The same day, the Volls and Jessica went to a liquor store, where Karl bought a bottle of tequila. After drinking the entire bottle, Karl left for the Vasquez apartment. Karl went to the door and asked for Michael or Nicholas. Nicholas approached the door, and he and Karl...

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