Livers v. Schenck
| Decision Date | 08 November 2012 |
| Docket Number | 11–1880,11–1879,11–1918.,11–1917,Nos. 11–1877,s. 11–1877 |
| Citation | 700 F.3d 340 |
| Parties | Matthew LIVERS, Plaintiff–Appellee v. Earl SCHENCK, Cass County Sheriff's Investigator; William Lambert, Nebraska State Patrol Investigator; Charles O'Callaghan, Nebraska State Patrol Investigator; Sandra Weyers, Cass County Sheriff's Sergeant; County of Cass, Nebraska; David Kofoed, Commander of the Douglas County Sheriff's Office Crime Scene Investigation Division, Defendants Tim Dunning, Sheriff of Douglas County, Defendant–Appellant County of Douglas, Nebraska, Defendant. Matthew Livers, Plaintiff–Appellee v. Earl Schenck, Cass County Sheriff's Investigator, Defendant–Appellant William Lambert, Nebraska State Patrol Investigator; Charles O'Callaghan, Nebraska State Patrol Investigator, Defendants Sandra Weyers, Cass County Sheriff's Sergeant, Defendant–Appellant County of Cass, Nebraska; David Kofoed, Commander of the Douglas County Sheriff's Office Crime Scene Investigation Division; Tim Dunning, Sheriff of Douglas County; County of Douglas, Nebraska, Defendants. Matthew Livers, Plaintiff–Appellee v. Earl Schenck, Cass County Sheriff's Investigator, Defendant William Lambert, Nebraska State Patrol Investigator; Charles O'Callaghan, Nebraska State Patrol Investigator, Defendants–Appellants Sandra Weyers, Cass County Sheriff's Sergeant; County of Cass, Nebraska; David Kofoed, Commander of the Douglas County Sheriff's Office Crime Scene Investigation Division; Tim Dunning, Sheriff of Douglas County; County of Douglas, Nebraska, Defendants. Nicholas Sampson, Plaintiff–Appellee v. Investigator William Lambert, in his official and individual capacities; Investigator Charles O'Callaghan, in his official and individual capacities, Defendants Sergeant Sandy Weyers, in her official and individual capacities, Defendant–Appellant Cass County Sheriff's Office, a Nebraska political subdivision; Does 1–8, in their official and individual capacities, Defendants Investigator Earl Schenck, Defendant–Appellant Douglas County Sheriff's Office; David W. Kofoed, in his official and individual capacities, Defendants. Nicholas Sampson, Plaintiff–Appellee v. Investigator William Lambert, in his official and individual capacities; Investigator Charles O'Callaghan, in his official and individual capacities, Defendants–Appellants Sergeant Sandy Weyers, in her official and individual capacities; Cass County Sheriff's Office, a Nebraska political subdivision; Does 1–8, in their official and individual capacities; Investigator Earl Schenck; Douglas County Sheriff's Office; David W. Kofoed, in his official and individual capacities, Defendants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
700 F.3d 340
Matthew LIVERS, Plaintiff–Appellee
v.
Earl SCHENCK, Cass County Sheriff's Investigator; William Lambert, Nebraska State Patrol Investigator; Charles O'Callaghan, Nebraska State Patrol Investigator; Sandra Weyers, Cass County Sheriff's Sergeant; County of Cass, Nebraska; David Kofoed, Commander of the Douglas County Sheriff's Office Crime Scene Investigation Division, Defendants
Tim Dunning, Sheriff of Douglas County, Defendant–Appellant
County of Douglas, Nebraska, Defendant.
Matthew Livers, Plaintiff–Appellee
v.
Earl Schenck, Cass County Sheriff's Investigator, Defendant–Appellant
William Lambert, Nebraska State Patrol Investigator; Charles O'Callaghan, Nebraska State Patrol Investigator, Defendants
Sandra Weyers, Cass County Sheriff's Sergeant, Defendant–Appellant
County of Cass, Nebraska; David Kofoed, Commander of the Douglas County Sheriff's Office Crime Scene Investigation Division; Tim Dunning, Sheriff of Douglas County; County of Douglas, Nebraska, Defendants.
Matthew Livers, Plaintiff–Appellee
v.
Earl Schenck, Cass County Sheriff's Investigator, Defendant
William Lambert, Nebraska State Patrol Investigator; Charles O'Callaghan, Nebraska State Patrol Investigator, Defendants–Appellants
Sandra Weyers, Cass County Sheriff's Sergeant; County of Cass, Nebraska; David Kofoed, Commander of the Douglas County Sheriff's Office Crime Scene Investigation Division; Tim Dunning, Sheriff of Douglas County; County of Douglas, Nebraska, Defendants.
Nicholas Sampson, Plaintiff–Appellee
v.
Investigator William Lambert, in his official and individual capacities; Investigator Charles O'Callaghan, in his official and individual capacities, Defendants
Sergeant Sandy Weyers, in her official and individual capacities, Defendant–Appellant
Cass County Sheriff's Office, a Nebraska political subdivision; Does 1–8, in their official and individual capacities, Defendants
Investigator Earl Schenck, Defendant–Appellant
Douglas County Sheriff's Office; David W. Kofoed, in his official and individual capacities, Defendants.
Nicholas Sampson, Plaintiff–Appellee
v.
Investigator William Lambert, in his official and individual capacities; Investigator Charles O'Callaghan, in his official and individual capacities, Defendants–Appellants
Sergeant Sandy Weyers, in her official and individual capacities; Cass County Sheriff's Office, a Nebraska political subdivision; Does 1–8, in their official and individual capacities; Investigator Earl Schenck; Douglas County Sheriff's Office; David W. Kofoed, in his official and individual capacities, Defendants.
Nos. 11–1877, 11–1879, 11–1880, 11–1917, 11–1918.
United States Court of Appeals,
Eighth Circuit.
Submitted: Feb. 16, 2012.
Filed: Nov. 8, 2012.
[700 F.3d 343]
Timothy K. Dolan, argued, Diane Margaret Carlson, on the brief, Omaha, NE, for appellant in No. 11–1877.
Kim Sturzenegger, argued, Lincoln, NE, for appellants in Nos. 11–1879 and 11–1917.
Stephanie Anne Caldwell, argued, Frederick J. Coffman, on the brief, Lincoln, NE, for appellants in Nos. 11–1880 and 11–1918.
Locke E. Bowman, III, argued, Chicago, IL, Julia T. Rickert, Chicago, IL, Robert W. Mullin, Omaha, NE, on the brief, for appellants in Nos. 11–1877, 11–1879 and 11–1880.
Maren Lynn Chaloupka, argued, Scottsbluff, NE, for appellee in Nos. 11–1917 and 11–1918.
Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
RILEY, Chief Judge.
Cousins Matthew Livers and Nicholas Sampson were arrested and jailed awaiting trial for the murders of Sharmon and Wayne Stock after Livers confessed to the murders and implicated Sampson as an accomplice. Later, the charges against
[700 F.3d 344]
Livers and Sampson were dropped. They separately sued individual officials and municipal entities involved in the investigation, citing 42 U.S.C. § 1983 and alleging numerous constitutional violations. Several of the individual defendants appeal from the district court's denials of their motions for summary judgment based on qualified immunity. The appeals have been consolidated. We affirm in part, reverse in part, and remand for further proceedings.
I. BACKGROUNDA. Factual Background1The Stocks were brutally murdered by close-range gunshots. The murders occurred in the Stocks' home near Murdock, Nebraska, before dawn on April 17, 2006. Members of the Cass County Sheriff's Office (CCSO), Nebraska State Patrol (NSP), and Douglas County Crime Scene Investigation Unit (DCCSI), a division of the Douglas County Sheriff's Office (DCSO), participated in the Stock homicide investigation.
At the crime scene, the investigators observed a human figure silhouetted in the blood spray, which suggested the presence of at least two intruders, “[o]ne to do the shooting and one to be silhouetted by the spray.” The investigators concluded the attackers made a forced entry because a window appeared to be tampered with. The investigators also discovered various items of physical evidence, including a ring and a gray or silver flashlight.
Based upon interviews CCSO Investigator Earl Schenck and Sergeant Sandra Weyers (Cass appellants) conducted with the Stocks' relatives, the investigators identified the Stocks' nephew, Livers, as a suspect. Some of these relatives reported Livers and the Stocks had argued and Sharmon Stock feared Livers. Livers is mentally retarded.2 Between April 18 and 20, Sergeant Weyers, Investigator Schenck, and NSP Investigator William Lambert were told Livers was “mentally off,” “slow,” “different,” and “immature for his age.”
Investigators became suspicious after learning Will Sampson's (Will) car, a light brown, four-door Ford Contour, was detail cleaned on the day of the murders—April 17. Will is Sampson's brother. With Will's consent, the investigators searched Will's car and the vacuum bags from the auto detail shop. Neither the car nor the vacuum bags contained blood or other incriminating evidence. Between April 17 and April 21, witnesses reported to the investigators that they saw a light brown or tan four-door car with an “O” on the license plate parked near the Stocks' house on the morning of the murders. Will's car did not have an “O” on the license plate.
On April 17, 2006, Livers spoke to Investigators Schenck and Lambert and agreed to take a polygraph examination to “clear [his] name” of suspicion. On April 25, Investigators Schenck and Lambert drove Livers from his home to the Cass County Law Enforcement Center. They escorted Livers into a small, windowless room Livers described as uncomfortably cold. There is no indication Livers consulted with an attorney or other advisor during any of the April 25 interrogations. Though Livers told the investigators he had not eaten that day, he was not offered food until 7:24 p.m., more than ten hours
[700 F.3d 345]
after he arrived at the Law Enforcement Center.
Livers' first interview of the day began around 9:00 A.M. During this interview, Investigators Schenck and Lambert told Livers he could leave, but Livers agreed to stay and take a polygraph examination. Livers now asserts he did not understand he could leave or choose not to take the polygraph examination.3
After Livers had been speaking with Investigators Lambert and Schenck for nearly two hours, NSP Investigator Charles O'Callaghan entered the room and told Livers to put his keys and cell phone on a table. Investigator O'Callaghan took Livers to another room, advised Livers of his rights under Miranda, and administered a polygraph examination in which he questioned Livers about the murder of Wayne Stock. Livers repeatedly denied involvement. After the examination, Investigator O'Callaghan left the room. When Investigator O'Callaghan returned, he accused Livers of murdering the Stocks, claiming the polygraph left “no doubt” Livers had done so. A polygraph expert later testified the examination's design and implementation were so flawed that it could not reliably indicate whether Livers was being truthful.
After Investigator O'Callaghan left the room for a second time, Investigators Schenck and Lambert entered and resumed questioning Livers. They told Livers his polygraph results were “off the charts,” repeatedly accused Livers of murdering the Stocks, and discounted Livers' protestations of innocence, sometimes with a loud voice. For example, Investigator Lambert told Livers, “You're full of s[- - -]. You did too [kill the Stocks].” They repeatedly told Livers they would help him if he confessed, and suggested his execution if he did not. Investigator Schenck said:
If you don't admit to me exactly what you've done, I'm going to walk out that door and I am going to do my level best to hang you're a[- -] from the highest tree.... I will go after the death penalty. I'll push and I'll push and I'll push and I will do everything I have to, to make sure you go down hard for this.
Investigator Lambert told Livers he could not leave, saying, “Do you think you are going to get on a bus and you are going to leave? You are going to leave us? No, you're not.” Later, but still before Livers confessed, Livers said he wanted to go home, but believed he could not do so. The investigators did not contradict this statement.
Livers denied involvement in the murders more than eighty times before he began to agree with the investigators' accusations. At 3:28 P.M., approximately six and a half hours after Livers began speaking to the investigators, Livers began to confess he murdered the Stocks.4 Investigators Lambert and Schenck obtained the confession almost entirely through Livers' responses to leading, yes-or-no questions, for example, supplying Livers with information about the physical evidence.
Inv. Schenck: And [Sharmon Stock] was trying to get on the phone, wasn't she?
Livers: I guess.
[700 F.3d 346]
Inv. Schenck: Did she have the phone in her hand?
Livers: Mmm, don't remember.
Inv. Schenck: You don't remember. But you got pretty close to Aunt Sharmon, didn't you?
Livers: Right, I guess, I don't know.
When Investigator Schenck...
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