Haupt v. Dillard

• Decision Date: 12 May 1992
• Docket Number: No. CV-S-90-121-PMP (RJJ).,CV-S-90-121-PMP (RJJ).
• Citation: 794 F. Supp. 1480
• Parties: Howard L. HAUPT, Plaintiff, v. T.D. DILLARD; Robert Leonard; Las Vegas Metropolitan Police Department; City of Las Vegas, Nevada; Clark County, Nevada, Defendants.
• Court: U.S. District Court — District of Nevada

794 F. Supp. 1480

Howard L. HAUPT, Plaintiff, v. T.D. DILLARD; Robert Leonard; Las Vegas Metropolitan Police Department; City of Las Vegas, Nevada; Clark County, Nevada, Defendants.

No. CV-S-90-121-PMP (RJJ).

United States District Court, D. Nevada.

May 12, 1992.

William F. Gary, Glenn Klein, J. Pat Horton, Brian R. Barnes, Horton & Koenig, Eugene, Or., Daniel Markoff, Las Vegas, Nev., for plaintiff.

James R. Olson, Walter Cannon, John Gormley, Las Vegas, Nev., for defendants.

ORDER

PRO, District Judge.

Before the Court is Defendants' Motion for Summary Judgment Re: Plaintiff's § 1983 Claims (# 62) which was filed on August 19, 1991. Plaintiff, Howard Haupt ("Haupt"), submitted an Opposition (# 72) on November 1, 1991 followed by an Erratum (# 74) filed on November 4, 1991. Defendants filed their Reply (# 77) on December 16, 1991. On April 17, 1992, the Court conducted a hearing regarding Defendants' Motion.

I. FACTS

The underlying facts of this case are based on the disappearance and murder of a seven year old boy, Alexander Harris ("Harris"), the ensuing police investigation, and the subsequent prosecution and acquittal of the plaintiff Haupt. On November 27, 1987, Harris and his family stopped at Whisky Pete's Hotel and Casino in Stateline, Nevada on their way home to California. During the stop, Harris' parents left him in the video game arcade while they went to the casino to gamble. At approximately 11:00 a.m., Harris' mother returned to the arcade to check up on her son only to discover that he was missing. Mrs. Harris immediately contacted hotel security who searched the premises, but were unable to locate the boy. At this point, the Las Vegas Metropolitan Police ("Metro") were called in, and initiated an investigation into the apparent kidnapping.

Approximately one month later, on December 30, 1987, a maintenance worker discovered Harris' body underneath a trailer on the grounds on the casino. An autopsy was done which revealed that Harris had been murdered on or about the day he was reported missing by means of strangulation. Shortly after the discovery of the body, Detectives Tom Dillard ("Dillard") and Robert Leonard ("Leonard") were assigned to investigate the murder. See Defendants' Motion for Summary Judgment (# 62), Exhibit A, p. 4-8.

During the investigation, several leads were developed in trying to locate the boy. Prior to the time when Metro was contacted, a resident of the hotel, Mr. James Austin ("Austin"), reported he saw Harris on the second floor walking with his "father." Defendants' Motion for Summary Judgment (# 62), Exhibit A, p. 2. Several other witnesses were also located who had apparently seen a boy matching the description of Harris walking away with a man. Following is a summary of the eyewitness accounts and the facts which they contributed to the investigation:

(1) James Austin ("Austin") — Austin is a California resident who was staying on the second floor of the hotel on date on Harris' disappearance. On November 27, 1987, Austin stated that as he was leaving his room he saw a man and young boy walk past him in the hallway. Also, on that date, Austin gave a physical description of the man he saw as being white, 35-38 years old, wearing glasses and a brown jacket, and having his hair combed forward. Plaintiff's Opposition (# 72), Exhibit 40, p. 1. Later, on January 22, 1988, Austin gave another description of the man he saw (wearing a tan jacket, having wire-rimmed glasses, brown hair combed forward, 5'8" tall, and between 38 and 40 years old) and indicated that on a scale from one to ten, he was an eight in certainty that Harris was the boy he had seen in the hallway. Plaintiff's Opposition (# 72), Exhibit 41, p. 4-7. On that same day, Austin viewed a videotape taken from a security camera in the arcade which showed a man in a tan jacket. Austin indicated that the man in the video was not the man he had seen later that day, noting particularly that the individual in the picture was balding. Plaintiff's Opposition (# 72), Exhibit 41, p. 10-11. Finally, on January 22, 1988, Austin was taken to Haupt's place of work in San Diego in an attempt to identify him in person. While at Haupt's office, Austin sat near the entryway and watched people as they came into the building. After watching approximately 10 other people enter the office, Austin keyed in on Haupt. Austin then asked to see Haupt again, and was walked by the area in which Haupt works. Later that day, Austin identified Haupt as the man he saw in November with a certainty level of seven and a half to eight, and subsequently picked Haupt in a photographic lineup. Plaintiff's Opposition (# 72), Exhibit 42, p. 2-5.¹

(2) Catherine Perry ("Perry") — Perry is a Twenty-One dealer at the casino who was on a break when she first saw Harris leaving the video arcade with a man. Initially, on December 3, 1987, Perry indicated to Metro that she thought the man with the boy was John Beno, a man she knew who worked at the same casino. Perry also stated that when she said "hi" to the man that he looked startled or surprised, said "hi" in return, and then walked away. See Plaintiff's Opposition (# 72), Exhibit 33, p. 1-2. Later, on January 19, 1988, Perry gave a detailed description of the man she saw as being 5'8"-5'9", 33-36 years old, having light brown hair, and wearing a tan jacket and wire-rimmed glasses. Plaintiff's Opposition (# 72), Exhibit 53, p. 2-7. Also on January 19, 1988, Perry was shown a photographic lineup containing six photographs including a picture of Haupt. Although Perry stated that she could not "absolutely identify" the man she saw, she did pick Haupt from the photographs and characterized the certainty of her pick that he was the man she saw as an eight on a scale from one to ten. Plaintiff's Opposition (# 72), Exhibit 53, p. 6. Finally, on February 5, 1988, Perry was flown down to San Diego, and posing as an interior decorator, was given a tour of Haupt's workplace.² During that visit, Perry recognized Haupt as the man she had seen earlier in November. In a interview later that day, Perry indicated that her identification of Haupt was based on both her memory of the incident as well as the photo lineup she was later shown. Perry also indicated that after seeing Haupt in person, her level of certainty that he was the man she had seen with Harris could be characterized as a nine on a scale from one to ten. See Plaintiff's Opposition (# 72), Exhibit 54, p. 1-2.

(3) Keri & Steve Allen ("K. or S. Allen") — On November 27, 1988, K. Allen, a housekeeper at the hotel, met her husband S. Allen, a maintenance man at the hotel, for lunch. While they were walking to the casino, both saw a man who was holding the hand of a young boy walking down the hallway. Plaintiff's Opposition (# 72), Exhibit 34, p. 1-2. On November 27, 1987, K. Allen described the man she saw as being at least 6'0" tall, thinning light brown hair with a wisp of hair on his forehead, and wearing wire-rimmed glasses. Defendants' Motion for Summary Judgment (# 62), Exhibit E, p. 1. S. Allen described the man as being 6'0"-6'3", having sandy blond or light brown hair, and wearing glasses. On November 29, 1987, both S. Allen and K. Allen were shown a photographic lineup which did not include Haupt. In this lineup, both identified Steve Paajanen as "a possible suspect." Plaintiff's Opposition (# 72), Exhibit 20, p. 1. Later, on December 4, 1987, both S. Allen and K. Allen were shown a book of photographs, and both picked the photograph of John Beno indicating that this was the man that they had seen. K. Allen characterized her identification of Beno as "pretty sure," while S. Allen stated that he was ninety percent certain that Beno was the man he had seen. Plaintiff's Opposition (# 72), Exhibit 27, p. 1-2. Next, on January 15, 1988, both K. Allen and S. Allen were shown a photographic lineup which contained a picture of Haupt. Neither witness identified Haupt as the individual they saw in November. When asked to remark on each photograph individually, K. Allen commented that Haupt's picture was "definitely not" the man she saw, and that he was "too old." S. Allen commented that the picture of Haupt had some resemblance to the man he had seen, however, he thought the individual in the picture was "too old," that his sideburns were too long, and that his memory was "foggy" from seeing so many people. See Plaintiff's Opposition (# 72), Exhibit 34, p. 14-19. Finally, on February 11, 1988, K. Allen and S. Allen were flown down to San Diego and taken to the office in which Haupt works.³ Posing as an interior decorator, K. Allen stated that she saw about 70 people and identified Haupt with a certainty level of between nine and ten as the man she had seen in November. When asked why she didn't pick out Haupt in the earlier photographic lineup, K. Allen commented that the photograph did not accurately portray Haupt in that his hair was different and that it made him look too old. Plaintiff's Opposition (# 72), Exhibit 55, p. 1-5. S. Allen also indicated that upon seeing Haupt in San Diego that he had a certainty level of nine that Haupt was the man he had seen in November. S. Allen also commented that Haupt's picture differed from his personal presence. Plaintiff's Opposition (# 72), Exhibit 56, p. 1-3.⁴

As shown above, during the initial stages of the investigation, the suspect was described as a white male, approximately 35-38 years old, wearing wire-rimmed glasses, having brown or light-brown hair with an inconclusive thickness, and being anywhere between 5'8" and 6'3" tall. See supra, p. 1482-1483. On December 31, 1987, a surveillance tape which monitored a portion of the arcade was obtained from the security office of the hotel. Although the quality of the tape was poor, it did show that at the time of Harris' disappearance a man with a tan jacket was present in the arcade. Defendants' Motion for Summary Judgment (# 62), Exhibit A, p....