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Richardson v. Turpitt et al.: US District Court : 1983 - qualified immunity; no probable cause to arrest; negligent, not reckless; prosecution not truly independent

Civil No. 06-4251(DSD/SRN)
Roxanne Richardson,
Todd Turpitt, in his
individual and official
capacities, Craig Martin,
in his individual and official
capacities, Jeff Burchett, in
his individual and official
capacities, Steve Kritzeck,
in his individual and official
capacities and County of
Hennepin, Minnesota,
Jill Clark, Esq., Jill Clark P.A., 2005 Aquila Avenue
North, Golden Valley, MN 55427, counsel for plaintiff.
Toni A. Beitz, Hennepin County Attorneys Office, 300
South Sixth Street, Suite C-2000, Minneapolis, MN 55487,
counsel for defendants.
This matter is before the court upon defendants motion for
summary judgment. Based upon a review of the file, record and
proceedings herein, and for the reasons stated, the court grants
defendants motion in part.
On May 13, 2004, the state of Minnesota charged plaintiff
Roxanne Richardson (Roxanne) with conspiracy to commit aggravated
first degree witness tampering based on communications with her
1 Martin indicates that Flacko told him that this guy ...
approached him and asked him to take care of the witness in his
case. (Martin Dep. at 39.) It was later determined that Flacko
was referring to Willie and L.L.
husband Willie Richardson (Willie) while he was detained at the
Hennepin County Adult Detention Center (ADC) for allegedly
sexually assaulting her eighteen-year-old daughter, L.L., in
January 2004. As a result, Roxanne was arrested and detained at
the ADC until a state court judge ordered her release for lack of
probable cause on October 22, 2004. Roxanne now challenges the
adequacy of the investigation by Hennepin County law enforcement
officials that resulted in her arrest and detention.
In April 2004, defendant Detective Craig Martin (Martin)
interviewed a confidential informant known as Flacko at the ADC
about narcotics. During that interview, Flacko mentioned that
Willie had asked him to kill L.L.1 Although this information was
unrelated to the narcotics investigation, Martin believed Flacko
was credible because his narcotics information was accurate.
(Martin Dep. at 35, 60.) In response, the Hennepin County
Sheriffs Office opened an investigation and assigned defendants
Detectives Jeff Burchett (Burchett) and Steve Kritzeck
(Kritzeck) to the case. (Clark Aff. Ex. 1.)
Martin and Burchett interviewed Flacko on April 27, 2004, for
thirty minutes to one hour. After that preliminary interview,
Flacko provided the following transcribed statement:
Q: Did you know Willie before you went to jail?
A: No.
Q: How long do you think youve know[n] Willie[?]
A: Almost two and a half months.
Q: At some point, did Willie pull you aside and ask
you to do something for him?
A: Yes.
Q: What did he ask you to do?
A: He told me to make sure his step-daughter wont
come to court and testify against him. He said he
didnt care what I had to do to keep her from
coming to court.
Q: What did Willie tell you in reference to [L.L.], if
you were to take care of her?
A: He told me he would pay me a certain amount of
money if I would take care of her. He told me, If
the bitch dont come to court, theyll drop it. No
witness, no case.
Q: In your opinion, was he asking you to kill her?
A: Yes. He told me he would give me a couple Gs if
I would get rid of her.
Q: Did Willie ever introduce you to Roxanne?
A: By phone.
Q: Was this by phone from the jail?
A: Yes.
Q: Who arranged for this phone contact with Roxanne?
A: Willie.
Q: Were you supposed to find a gun for Roxanne?
A: Yes.
Q: Was she hesitant to talk to you about the specifics
of getting the gun for her?
A: Yes. She told me to come to her crib in person.
Q: Do you know what she was going to use the gun for?
A: No.
Q: If you could not find a gun for her, what were you
supposed to do?
A: Take care of the daughter.
Q: And by that, do you mean kill her?
A: Yes.
Q: So it was possible, in your understanding of the
situation with Willie, that Roxanne could possibly
use the gun to kill [L.L.]?
A: Probably, yes.
Q: Since you got out of jail, have you spoken with
Willie on your home phone?
A: Yes.
Q: What did Willie ask you to do?
A: To go to his house and meet his wife to give her a
Q: Have you done this?
A: No.
Q: Did you receive a phone call from Roxanne where she
left you a message.
A: Yes.
Q: Did you make a return call to Roxanne?
A: Yes, I did.
Q: What did you tell her?
A: I told her that I would accept [Willies collect]
calls and that as soon as I was ready with the
thing, I would go to her house. She said that was
cool. She said she would have the money in a
couple more weeks.
Q: When you say thing do you mean gun?
A: Yes.
Q: Did you believe that Roxanne and Willie were
serious about having you kill [L.L.]?
A: Yes. I was positive they were very serious about
it. The way she sounded on the phone, she was real
positive about it.
Q: While you were still in jail, did Willie indicate
to you how you were to identify [L.L.]?
A: By a picture. Willie told me to go pick a picture
of [L.L.] up from Roxannes house because she
didnt want to bring it to my property.
Q: At this point, have you received a picture of
A: No.
Q: Just so were clear, your understanding of this
situation is that Willie and Roxanne are working
together, through you, to kill [L.L.]?
A: Yes.
(Clark. Aff. Ex. 2.)
2 There are certain discrepancies between the transcript of
this conversation and what the court, after independently reviewing
the recordings, determines was said. The court notes the
significant discrepancies below.
In an attempt to corroborate Flackos statement, the
investigators obtained recordings of several phone conversations
Willie had while in the ADC. On April 24, 2004, Willie and Roxanne
discussed various topics including their son, having someone
install an alternator on Roxannes car and whether Roxanne had met
with Flacko. Roxanne expressed hesitation about contacting Flacko
but agreed to call him and tell him to accept Willies calls from
the ADC. (Clark Aff. Ex. 14.) The conversation then continued as
R: Oh, you still want a peep show?
W: Yep.
R: Ill have to figure out what Im going to do.
W: That gives him a chance to go to daycare and play
with [inaudible] and get to know em.
R: Yeah, how am I going to do that?
W: Just for one day.
R: Yeah, but how am I going to do that?
W: Drop him off.
R: No, Im talking about the other thing.
W: I dont want to talk about that on the phone.
R: I dont know how to do this shit, I dont do shit
like that, so I dont know. Ive never done shit
like that before. I dont know. Alright.
3 The transcript indicates that gonna start is inaudible.
4 The transcript indicates that she is inaudible and that
her is him.
5 The transcript indicates that she is he.
W: Just-ah --
R: Dont even talk about it.
W: You got skirts at home?
R: Yeah, I got skirts.
W: Well wear one then. This is the last weekend
[inaudible] anyway.
R: Yeah I know.
W: The bullshit might gonna start.3
W: I still want you to find out what the hell she did
this week. I didnt hear from her or nothing.4
R: Mm-hmmm, alright.
W: Find out what she did this week and let me know.5
R: I will.
W: Cuz all the bullshit like she gonna do everything
in the trial, all that sh - everything shouldve
been knocked down before she even went to trial.
But this is gonna be -
R: But I cant understand.
W: This is just gonna be just a thing to see what they
got, what theyre working with.
R: Yeah.
6 The transcript indicates that Willie said Theres not gonna
be a trial. Although difficult to decipher, the court determines
that this interpretation best comports with the context of the
W: This not gonna be the trial.6
R: Well I dont know what the fucks going on, you
W: Thats why I say keep - talk to the lawyer and see
what else news they got for this week.
R: Mm-hmmm.
W: Call her tonight cuz it would be the best time to
get hold to her.
R: Yeah, cuz usually she aint ... I dont know what
she be doing really.
W: Better talk to her tomorrow about it.
(Martin Aff. Ex. M-1; Clark Aff. Ex. 14.)
In two separate conversations on the morning of April 25,
2004, Roxanne told Willie that she had been unable to contact
Flacko but had left a message indicating that Willie would be
calling him. (Martin Aff. Exs. M-2 and M-3.) Later that evening,
Roxanne told Willie that she had tried to call Flacko again but was
told she had the wrong number. Willie confirmed the number and
attempted to set up a three-way call with Flacko, at which time the
call was cut-off. (Id. Ex. M-4.) Within minutes of the phone call
being cut-off, Willie called Roxanne again, and she informed him
that she had left Flacko a message. The following exchange then
took place:
W: Dont even worry about it no more.
R: Okay.
W: Unless he calls.
R: Alright.
W: Cause hes probably thinking we called him for
some bullshit.
R: Oh, no. I aint trying to call nobody who, I
wouldnt have called him if you wouldnt have asked
me to.
W: No, Im talking about for that other stuff.
R: Oh.
W: But that aint, I aint even trying to do that.
(Id. Ex. M-5.)
The next day, Willie called Flacko and had an extensive
discussion with him about putting an alternator on Roxannes car.
At one point the conversation strayed from talk of the alternator
when Flacko said [H]ey Willie, I havent found any of that shit,
you know what Im saying? This led to the following exchange:
W: Alright. Ah, its alright then.
F: Um, but as soon as, um, your wife told me that, um,
you know what Im saying? That
W: Yeah, I know.
F: you went through. You know what Im saying?
W: Yeah. Talk to her about it.
F: For real?
W: Yeah cuz I dont want to talk on the phone and
worry about that.
(Id. Ex. M-6.) After that the conversation focused on how to
install the alternator and directions to Willies house. The
conversation ended with Willie indicating that he wanted the
alternator fixed as soon as possible and that he would sell a
snowblower and lawnmower to Flacko for in exchange for
installing the alternator.
Willie and Flacko spoke again on April 27, 2004. In that
conversation, Flacko mentioned that he had spoken with Roxanne.
Flacko then asked remember what you told me to do? This exchange
W: Do what?
F: Remember ... what you told me about the picture?
W: Yeah, thats alright.
F: That, that, thats really what you want me to do
W: No. I said thats alright.
W: No. I aint even going that route.
F: Huh?
W: I aint even going through that.
F: Alright. So ... what you want me to do then?
W: Nothing.
F: Do you want me to take ... what you told me to take
over there? Thats cool.
W: Did you talk to, ah, Roxanne today?
F: Yeah.
W: Whatd she say?
F: She said that she was going to talk to you about
W: Well if you got one, yeah.
F: Im saying ... do you want me to do what you told
me? Because my home boys coming from, you know,
W: No. I aint ... messing around.
F: You aint?
W: No.
F: Alright. So you just want me to forget what you
told me?
W: Yeah. I, no, I was talking about that thing for
Roxanne that she still want that dont she?
F: Oh, so you, but you still want that thing?
W: Yeah, if you can get one.
At this point, Willie asked what was wrong with Flackos phone and
indicated several times that he was not trying to get into trouble.
Eventually Flacko asked what Willie wanted him to do, to which
Willie responded Just forget it. Just forget all about
everything. I, wait til I get out. The conversation then
proceeded as follows:
F: I got the two that you lent me, remember?
W: You got the what?
F: What you told me to, what you told me to get
[inaudible] to take to her house.
W: You got it?
F: Yeah.
W: You got it now?
F: Yeah.
W: Take it over there now then.
F: So what you want me to do?
W: You know, you told her [inaudible] just call her
right now and tell her, when you get off the phone.
Call over there and tell her right now. And, ah,
yall can make the deal on it.
W: Just tell her you got it right now.
F: Alright.
W: But she aint going to be able to give you the
money right now.
F: Alright. But [inaudible] is one of my friends and
shit. If it was my shit, you know what Im saying?
But [inaudible] you know what Im saying? I cant
do it.
W: Im saying it. Shit, I know right now she dont
have the money right now.
F: How long you think shell take to get it?
W: She aint going to have the money until ... the
F: Alright Willie. Well, Ill call her so, um, why
dont you have her call me whenever she think
shell have the money.
W: Im just going to call her and tell her because,
ah, she dont need all that bullshit.
F: [inaudible]
W: Im just saying, she dont be in all that bullshit
like that.
F: Huh?
W: She dont be in the bullshit like that.
F: What do you mean?
W: She dont be playing them kind of games.
F: I know. But, ah, you know, I know that. I know
[inaudible] she comes through with the money.
[inaudible] put it down and pay me.
W: Yeah because, ah, man, Ill talk to her because,
ah, I aint worried about that other shit no way.
F: You aint worried no more?
W: Nope [inaudible] I aint going to do it, I aint
going to do that like this.
W: Let my lawyer deal with all that shit.
F: Alright. Well, its cool. Ill take that thing to
W: So, you know, I know she a liar anyways.
F: Huh?
W: I know whatchacallit lying on me anyways so I aint
worrying about.
F: Oh, and Ill talk to her and let her know what
about that thing.
W: Well you can call her right now and ask her if she
still want it. If she said no, dont worry about
it. But call her and ask her.
F: Alright. Well
W: If she want it, you can sell her one. But if she
dont want it, then forget it.
W: Yeah, because Im trying to get out of here May
4th. But all that bullshit, I aint trying do that
[inaudible] all that all bullshit, dumb shit. I
aint trying to, ah, I dont believe in hurting
nobody. I dont believe in that shit.
F: Alright Willie. You know -
W: Cuz what [L.L.] did to me, ah, believe me God will
punish her.
F: Yeah.
W: For, for setting me up because she set me up to get
me out the house. And everybody know it.
F: No, you know what? I asked her if you told me,
remember what to do, and shit. And I was like
W: No I didnt. Like I said, ah, when one person,
when a person do a person wrong, some day they get
caught up in some bullshit, shell do something....
They gonna catch her ass. She going be going
through some times as soon as she get caught up.
(Id. Ex. M-7.) The conversation then ended with Willie telling
Flacko to call Roxanne. Fifteen minutes later, Willie had the
following conversation with Roxanne:
W: Flacko call you?
R: Yeah.
R: [D]id you mention something about a picture of
W: [L]isten I just told him, nope, Im not playing
that dumb shit.
R: Yeah, okay.
W: I told him that, I dont know what he trying to
pull, I dont know if hes trying to set me up or
R: No, I had to ask you because he brought it up.
W: No, I not even playing the dumb shit.
R: Okay.
W: Cause I dont know what they up to.
R: Okay.
W: I aint messing with shit.
W: Flacko [inaudible] to set me up.
R: Nope.
W: For no bullshit. I dont know whats going on.
R: Uh-huh.
W: They might be working. They might be his ticket to
get out of here.
R: Oh, okay.
W: So I aint on no bullshit.
R: Thats all I needed to know.
W: See, they probably trying to pull that shit.
R: Well, you need to have him stop calling here then.
W: But did he call you and tell you hey, bringing you
the shit?
R: He didnt say nothing about that. He said, all he
said is hes still going to do that and that for
you to call him on Thursday .... And I didnt say
nothing. I just said I had to talk to you....
W: Well, thats all on Flacko, thats not on me.
R: Oh.
W: Cause I told him you still want that piece that ah
thing you going to buy the thing from him.
R: Right.
W: Thats why I told him to call you and say hes had
it. I said call over there, I just talked to him.
... I told him to call you and tell you you got
his thing and work something out with him. I told
him you aint gonna have no money until the 7th of
next month.
R: Alright.
W: He didnt mention nothing about that?
R: No.
7 Roxanne left the following message:
Yes, Flacko, um, my name is Roxanne Richardson.... My
husband said he dont know whats going on, but um, as
far as all that other bullshit about my daughter, but um,
I want to get that piece but I dont wanna no bullshit
and I dont need to keep calling your house and what you
do, if you got the shit, fine, and then well go from
W: You know what?
R: What?
W: Call him back.
R: Uh-huh.
W: [T]ell him I said never mind and whats up with the
bullshit.... Tell him I said that its all right
and this shit is not going down that way, whatever,
ya know.
R: Did you want me to tell him I want it or I dont?
W: What, you want it?
R: I dont have time for bullshit; if theres bullshit
in the picture I dont have time for.
W: Well, tell him that.
R: Okay.
W: And Ill call you right back and tell him nope,
cause then you tell him dont keep calling there.
If hes calling with bullshit, dont call over
R: Alright.
(Id. Ex. M-8.) Ten minutes later Willie and Roxanne had another
conversation in which Roxanne mentioned that she had just left a
message for Flacko.7 Willie and Roxanne continued talking about
there, but otherwise I dont want no steady phone calls
and I dont want, um, no bullshit cuz Im not gonna deal
with it cuz I cant deal with no bullshit. Bye.
(Id. Ex. M-10.)
8 The court notes that the recording differs from the
transcript in several places. For example, page five of the
transcript has Willie saying He probably to switch from under it.
Willie actually says He probably trying to snitch on somebody.
In addition to this example, there were other minor discrepancies.
Flacko, hypothesizing that he was trying to get a deal by setting
Willie up.8 The following exchange occurred after Roxanne
indicated she did not want to deal with Flacko:
W: You can just tell him no if anyone of them come around
this ah -
R: I know what to do.
W: You see, you know who he is; he looks like a white
boy, only Puerto Rican.
R: Okay.
W: He give you a holler at the door and you dont deal
with it or whatever.
W: You know what to do.
R: Yup, I know what to do (yawning).
W: Call the police and get them right out the yard.
W: [I] dont want them coming around.
(Id. Ex. M-9.) Willie then suggested that Flacko might have taped
Roxannes conversation with Flacko. Roxanne responded that she was
9 The transcript has Willie saying Cause they try anything,
Im getting closer (inaudible) to do shit to set me up.
not going to deal with this. The conversation continued as
W: No, just tell him no, dont even fuck around.
R: Alright.
W: Cause they up to some bullshit and the only
problem is trying to get the shit started.
R: Uh-huh.
W: Cause Im getting close to my court date.
R: Yeah, end of next month.
W: Yeah, they probably trying to get something on me
so they can kind of win this court case.
W: Cause they try anything. Im getting closer.
Theyll try to use some of these motherfuckers to
do shit to set me up.9
(Id.) Willie then indicated that he would get Flackos number from
Roxanne the following day but said I dont think Im going to call
it no way. I think Im going to leave it. The discussion about
Flacko ended with the following:
R: [I] had wrote [the phone number] down cause, I
didnt know, like I said, I dont know whats going
W: Theres nothing been going on. What you said you
wanted that?
R: Yeah, that was supposed to be it.
10 Kritzeck also listened to conversations between Roxanne and
Willie that took place on April 29 and 30. Those conversations,
however, are not in the record because Willie and Roxanne did not
discuss Flacko. (Kritzeck Aff. 7.)
W: Yeah.
R: Ya know.
W: He would talk about [L.L.] in here but I told him
cause we talked in here seeing how she look.
R: Uh-huh.
W: And I said well, you had a picture at home how she
R: Uh-huh.
W: That was it. There was no big deal about that, not
to me. I dont know what the fuck they up to.
R: Me neither.... [Y]ou know me.
W: They trying to make something out of nothing.
At the direction of the detectives, Flacko met with Roxanne at
her house on April 29, 2004, while wearing a wire. The following
conversation ensued:
F: I dont get what you trying to say. I mean
Willies telling me to do some shit. And, and you
telling me another thing....
R: No. I, I wanted to get the stuff but I dont want
to deal as far as what Willie said about a picture
of [L.L.] Im not going there.
R: Im not dealing with that. I, I cant deal with
that. Because thats too much for me to handle,
alright. If you want to, if thats what we need to
deal with. Ah, cuz Im not going to do that. Um,
and I, I cant, um, all this stuff, I want to do it
but I dont, I dont want [inaudible]. I, Ive had
so much, so many things going on with my husband,
me personally, and I, I just cant deal with a lot
of drama. And thats all I was just trying to say.
F: Yeah, yeah, he told me ... make sure that your
bitch didnt come up to court cuz I thought if she
didnt come to court they cant charge me.
R: Right. Well, no. Willie needs, I, well, let me
talk to him. Dont let him get involved in that.
Theyll deal with that. Ill help Willie. Willie
is my husband. Hes my responsibility so Ill deal
with him.
F: Yeah but I, I just try to help a brother, you know
what Im saying?
R: Yeah, I know. But, um, its just that he, well,
well deal with it. I cant, I just got a lot of
information today and Ive been dealing with his
lawyer so.
F: So, another thing is I cant bring you the heat,
you know what Im saying? If you aint got no
money. You know what Im saying?
R: Oh, so what, no. I understand that. Thats fine.
R: Im going to get that money. I dont know. I got
to be in court next week. So probably after the
7th if they pay me the money they owe me.
F: So you gonna call me as soon as you get that?
Because I can bring that shit to you. You know
what Im saying?
R: Okay. Yeah. As soon as I get the money.
F: Because I was confused what he told me.... Get rid
of, get rid of this bitch. You know what Im
saying? And I had my home boy come, you know what
Im saying?
R: Yeah, well Willie shouldnt even of went there
because, um, even though shes my daughter and I
dont care for her, you know this, that is not the
way to take care of things. You know, its not the
way I deal on situations so thats - he should have
known better.
F: I feel for you. [inaudible] make sure she come up
in court.
R: Oh, I aint really worried about it because if
thats the case, I could did it back in March
myself. You know? And I aint tripping, you know,
I know my husband. I know my husband [inaudible]
F: You told me just go pick up [L.L.] because I
remember you told, you remember I asked you for to
get me the picture. Remember?
R: Uh-huh.
F: And I told you, um, so, I, I was thinking, that you
know, that I was coming here to get the picture.
R: No, ... I threw all my daughters pictures away.
F: I understand.
R: See she did me wrong.... I guess the only thing we
really need to do is when I get the money, Ill get
that from you.
(Id. Ex. M-11.) At this point, Roxanne told Flacko to make sure
that the gun she was planning on purchasing was something she could
handle, but one that would make damage. Flacko later indicated
that he would sell her the gun without bullets and would bring her
the bullets later. Roxanne responded that she would not do
anything stupid and that she dont play games. Just before the
conversation ended, Roxanne stated: I dont hurt nobody who hasnt
hurt me. You know, if somebody hurt me, then its different. But
if, um, if youre trying to help me out, you know, I can give the
utmost respect. (Id.)
Roxannes next interaction with Flacko was another meeting on
May 6, 2004, initiated by Flacko at the direction of the
detectives. At that meeting, Flacko indicated that he had a gun
that Roxanne would like. Roxanne, however, told him that she had
not been to court and did not have any money with which to purchase
the gun. Upon hearing this, Flacko cut the price for the gun in
half, and after Roxanne again told him she did not have any money,
suggested making a deal with the lawnmower and snowblower; but
Roxanne had already sold those to her cousin. The conversation
ended with Roxanne reiterating that she would not know until the
following Friday whether she would have money with which to buy the
gun, and that if the court awarded her any money, it would be a
week before it get here. (Id. Ex. M-12.)
Later that evening, Burchett, along with another detective,
returned to Roxannes home to arrest her. This conversation was
also recorded. (Beitz Aff. Ex. K.) After reminding Roxanne that
her phone calls with Willie were monitored, the following exchange
took place:
B: Well, you guys kind of quit talking on the phone
after you talked about killing [L.L.]
R: Im not - man, I am not gonna kill my daughter. I,
I wouldnt do that. Im not that kind of
person.... I, Im hostile. I feel that way, but
Im not going to do it.
B: Willie was conspiring with you to hire a guy to
kill her.
R: Oh, no, no, no, no. Im not gonna do that.
B: Well, this is the way it is here, Roxanne. We got,
we got our side of the story and you got your side
of the story.
R: Well I know one thing, Im not gonna kill my
daughter. The last time I seen my daughter was on
her birthday. I aint seen her since.
B: I think I can almost quote. One of your
conversations was, I think hes working with the
police. Well take care of it another way.
R: Well that, that aint me.
B: No, that was your words.
R: Well, Im not gonna do nothing stupid. I aint
never been arrested. I aint never been in
trouble, and I -
B: Well, you are in trouble now and we are going to
place you under arrest at this particular point in
(Id.) Burchett then arrested Roxanne without obtaining an arrest
warrant. Roxanne was detained pursuant to an Authority to Detain
signed by Burchett indicating a charge of first degree conspiracy
to commit murder.
On May 7, 2004, Burchett and Kritzeck each filed investigative
reports to support Roxannes arrest. After indicating that Willie
gave Roxanne Flackos phone number and told her to tell Flacko to
accept Willies calls, Burchetts report provided the following
interpretation of the phone calls:
1. Willie instructs Roxanne to find out where
Roxannes daughter, [L.L.], is living. Roxanne
asks, How am I gonna do that other thing Willie?
and Willie states, Dont talk about that on the
phone, referring to the murder of [L.L.]
2. Willie states, This is my last weekend anyway.
The BS is about to start.
3. Willie again instructs Roxanne to Find out where
the hell shes living, meaning [L.L.], this
week. Willie states, Everything should be
knocked down before this thing even went to trial.
But they got who theyre gonna be working with,
meaning the prosecution. Willie states, There
wont be a trial, meaning if [L.L.] disappears.
Willie tells Roxanne that the state is representing
[L.L.] Roxanne tells Willie to have Flacko call
her at night cuz its the best time to get a hold
of her.
4. On 4/25/04, at approximately 7:57 PM, Willie calls
Roxanne again and gets [Flackos] phone number from
another inmate to verify the number that Willie had
given to Roxanne. Roxanne thought she had gotten
the wrong number, as she had been unable to contact
[Flacko]. Roxanne tells Willie to breath heavy and
she attempts a three way [call] and they are
5. On 4/25/04, at approximately 8:03 PM, Roxanne tells
Willie that she left a message on [Flackos]
answering machine.
6. On 4/26/04, at 6:41 PM, Willie ... called [Flacko]
at [Flackos] residence. [Flacko] tells Willie he
doesnt have a gun yet and Willie instructs
[Flacko] to talk to Roxanne about it. Willie
instructs [Flacko], I dont want to talk on the
phone, and gives [Flacko his] address.
(Clark Aff. Ex. 9.)
Kritzeck filed two investigative reports. The first report
focused on the phone calls and indicated at the outset that Willie
and Roxanne were working with Flacko to have L.L. murdered before
Willies trial. The report then continued as follows:
2. It became very apparent, while monitoring the[]
recorded telephone calls, that Willie Richardson
was instructing [Roxanne] to determine [L.L.s]
whereabouts .... There were several telephone
calls referencing Willie instructing Roxanne to
find out where [L.L.] is now living and instructing
her to get photographs of [L.L.] to show or give to
3. One telephone call in particular on 4/27/04 ...
Flacko tells Willie that he had acquired a handgun.
Willie instructs Flacko to take this handgun to his
wife, Roxanne, and sell it to her. While Willie
was saying this, Flackos telephone was receiving
some interference, at which time Willie asked
Flacko what was wrong with his telephone.
Immediately Willie recanted what he had told Flacko
previously, and stated, Forget about everything.
Dont worry about it. Ill take care of it
4. During several of these telephone calls ... both
Willie and Roxanne referenced the fact that these
telephone calls are recorded and to be careful what
they say. Willie was convinced that Flacko was
working with the police because of the way he was
released from jail.
(Id. Ex. 4.)
11 The report indicates that the meeting took place on May 6,
2004. The reports narrative, however, makes clear that Kritzeck
is referencing the earlier meeting.
Kritzecks second report focused on the April 29 meeting
between Flacko and Roxanne.11 Kritzeck described that meeting as
[Flacko] made reference to a conspiracy between he and
Willie Richardson and Roxanne Richardson to have Roxanne
Richardsons daughter, [L.L.], the victim of a rape by
Willie Richardson killed. During this conversation
between [Flacko] and Roxanne, Roxanne informs [Flacko] to
disregard or forget about what he and Willie had talked
about in jail and that she would take care of the
problem. Roxanne still wanted [Flacko] to acquire a
handgun for her and told [Flacko] that she wanted a gun
that she could handle, but yet a gun that could cause
some damage. Roxanne informed [Flacko] that she, at this
time, did not have the funds to pay for a gun, but
following a court appearance on 5/7/04, she would be
receiving money to pay for this firearm. Roxanne
Richardson stated that she would contact [Flacko] when
she had the funds to pay for this firearm. For complete
details pertaining to what was said during this meeting,
see attached recording.
(Id. Ex. 3.)
The state did not file a criminal complaint immediately after
Roxannes initial arrest, and she was released on May 8, 2004. On
May 13, 2004, however, a state prosecutor drafted a complaint
charging Willie and Roxanne with conspiracy to commit aggravated
first degree witness tampering. On May 14, 2004, defendant
Detective Todd Turpitt (Turpitt) served as the complaining
witness in front of a state court judge, who signed the complaint
after finding that it stated probable cause. As a result, Roxanne
12 Roxannes counsel voluntarily dismissed her false
imprisonment claim.
was arrested and detained on May 14, 2004. Roxanne challenged
probable cause on August 25, 2004, and at a hearing on October 22,
2004, a different state court judge ordered Roxannes immediate
release for lack of probable cause.
Roxanne brought the current action on October 20, 2006, and
her amended complaint alleges various claims under 42 U.S.C. 1983
and a state law claim for malicious prosecution.12 Defendants now
move for summary judgment on all claims.
I. Summary Judgment Standard
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment is appropriate if the pleadings,
depositions, answers to 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 a judgment as a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A fact is material only when its
resolution affects the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the
evidence is such that it could cause a reasonable jury to return a
verdict for either party. See id. at 252.
13 Roxanne also asserts that the detective defendants engaged
in a conspiracy to violate her constitutional rights. However, no
facts support an agreement to violate Roxannes constitutional
rights. Reasonover v. St. Louis County, 447 F.3d 569, 582 (8th
Cir. 2006) (The officers may have jointly pursued their
investigation based on a belief [plaintiff] was guilty, but this
On a motion for summary judgment, all evidence and inferences
are to be viewed in a light most favorable to the nonmoving party.
See id. at 255. The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings but must set forth
specific facts sufficient to raise a genuine issue for trial. See
Celotex, 477 U.S. at 324. Moreover, if a plaintiff cannot support
each essential element of his claim, summary judgment must be
granted because a complete failure of proof regarding an essential
element necessarily renders all other facts immaterial. Id. at
II. Section 1983 Claims
A claim pursuant to 1983 requires a plaintiff to establish
the deprivation of a right secured by the Constitution or laws of
the United States that was caused by a person acting under the
color of state law. Tipler v. Douglas County, 482 F.3d 1023, 1027
(8th Cir. 2007) (citations omitted). Roxanne asserts that she was
twice arrested without probable cause in violation of the Fourth
Amendment and that she was the subject of a reckless investigation
in violation of her right to substantive due process protected by
the Fourteenth Amendment.13 Roxanne further contends that defendant
does not constitute an unlawful conspiracy.). Therefore, summary
judgment is appropriate to the extent Roxanne seeks conspiratorial
14 Plaintiff did not pursue this claim in her memorandum in
opposition to defendants motion for summary judgment.
Nevertheless, at oral argument, plaintiffs counsel indicated her
desire to maintain the claim.
Hennepin Countys failure to train its detectives was the moving
force behind her alleged constitutional violations.14
A. Individual Liability
The detective defendants maintain that they are entitled to
qualified immunity. Qualified immunity provides protection from
civil liability to government agents who perform discretionary
functions, so long as the challenged actions are objectively
reasonable in light of clearly established legal principles. See
Anderson v. Creighton, 483 U.S. 635, 638 (1987). Qualified
immunity is a question of law that the court determines as early as
possible so as to shield appropriate officials from suit. See
Gainor v. Rogers, 973 F.2d 1379, 1382-83 (8th Cir. 1992). In
evaluating a claim of qualified immunity, the initial inquiry is
whether, the facts alleged show the officers conduct violated a
constitutional right[.] Saucier v. Katz, 533 U.S. 194, 201
(2001); Craighead v. Lee, 399 F.3d 954, 961 (8th Cir. 2005). If
the facts alleged by plaintiff do not establish a violation of a
constitutional right by an officer, no further inquiry is necessary
and qualified immunity is warranted. Saucier, 533 U.S. at 201.
However, if the facts do allege a constitutional violation,
the court must determine whether the right alleged to be violated
was clearly established so that a reasonable officer would
understand that the conduct he engaged in was unlawful. See id.;
Wilson v. Layne, 526 U.S. 603, 614-15 (1999). In other words, the
unlawfulness must be apparent in light of pre-existing law.
Anderson, 483 U.S. at 640. This second inquiry is fact intensive
and undertaken in light of the specific context of the case.
Saucier, 533 U.S. at 201. The court applies the doctrine of
qualified immunity in a manner that gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those
who knowingly violate the law. Walker v. City of Pine Bluff, 414
F.3d 989, 992 (8th Cir. 2005) (quoting Hunter v. Bryant, 502 U.S.
224, 229 (1991)).
1. Fourth Amendment
a. Deprivation of Constitutional Right
A warrantless arrest violates the Fourth Amendment unless it
is supported by probable cause. Amrine v. Brooks, 522 F.3d 823,
832 (8th Cir. 2008). Because the qualified immunity privilege
extends to a police officer who is wrong, so long as he is
reasonable, the governing standard for a Fourth Amendment unlawful
arrest claim is not probable cause in fact but arguable probable
cause. Walker, 414 F.3d at 992 (citation and quotation omitted).
Probable cause exists when the totality of the circumstances shows
15 The Authority to Detain submitted by Burchett cited only
the Minnesota conspiracy statute, Minnesota Statutes 609.175, but
that a prudent person would believe that the arrestee has committed
a crime. Amrine, 522 F.3d at 832. In assessing probable cause,
a court looks at the objective facts available to the officers at
the time of the arrest, Sheets v. Butera, 389 F.3d 772, 777 (8th
Cir. 2004), and gives the officers substantial latitude in
interpreting and drawing inferences from factual circumstances,
Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999) (citation and
quotation omitted). Such latitude, however, is not unlimited. An
officer contemplating an arrest is not free to disregard plainly
exculpatory evidence, even if substantial inculpatory evidence
(standing by itself) suggests that probable cause exists. Id.;
see also Anderson v. Cass County, Mo., 367 F.3d 741, 747 (8th Cir.
2004). Further, absent exigent circumstances, officers are
required to conduct a reasonably thorough investigation prior to
arresting a suspect. Kuehl, 173 F.3d at 650. This does not mean
officers must conduct a mini-trial, but probable cause does not
exist when a minimal further investigation would have exonerated
the suspect. Id.; see also Amrine, 522 F.3d at 832.
Roxanne argues that the detectives are not entitled to
qualified immunity because she was arrested without arguable
probable cause to support a conspiracy to murder L.L. or otherwise
prevent L.L. from appearing in court.15 In Minnesota, the crime of
indicated Roxanne had committed first degree conspiracy to commit
murder. The complaint prepared by the state prosecutor cited
609.175 in addition to 609.498, subdiv. 1b(a)(1), which
A person is guilty of aggravated first-degree witness
tampering if the person causes or, by means of an
implicit or explicit credible threat, threatens to cause
great bodily harm or death to another in the course of
... preventing or dissuading or attempting to prevent or
dissuade a person who is or may become a witness from
attending or testifying at any criminal trial or
conspiracy requires (1) an agreement between two or more people to
commit a crime and (2) an overt act in furtherance of the
conspiracy. Ramsey County v. Stewart, 643 N.W.2d 281, 297 (Minn.
2002) (citing Minn. Stat. 609.175, subdiv. 2). An agreement may
be established by circumstantial evidence, State v. Vereb, 643
N.W.2d 342, 348 (Minn. Ct. App. 2002), and the slightest action on
the part of a conspirator can be an overt act, Stewart, 643 N.W.2d
at 297 (citing State v. St. Christopher, 232 N.W.2d 798, 804 (Minn.
1975)). Moreover, a conscious and intentional purpose to break the
law is an essential element of the crime of conspiracy. State v.
Jacobson, 697 N.W.2d 610, 615 (Minn. 2005) (citation and quotation
omitted). Defendants argue that Flackos April 27 statement to
Burchett and Martin established arguable probable cause that Roxanne
and Willie agreed to commit a crime. Further, defendants maintain
that Roxanne committed an overt act in furtherance of that agreement
by contacting Flacko at Willies behest, facilitating dialogue
between Willie and Flacko and meeting with Flacko about obtaining
a gun.
In certain circumstances, Flackos statement alone may have
supported probable cause of an agreement between Willie and Roxanne.
See United States v. Taylor, 519 F.3d 832, 834 (8th Cir. 2008)
(When the arrest is based on information provided by an informant,
that information may be sufficiently reliable to support a probable
cause finding if the person providing the information has a track
record of supplying reliable information, or if it is corroborated
by independent evidence. (citations and quotation omitted)). The
leading questions by the detectives and an objective review of the
telephone conversations and meetings, however, undermine the
statements reliability insofar as it relates to an agreement
between Willie and Roxanne to prevent L.L. from testifying.
The evidence available to the officers at the time of Roxannes
arrests - including Flackos statement, the phone conversations and
Flackos meetings with Roxanne - reasonably establish that while
incarcerated together Flacko and Willie had a nefarious conversation
or agreement about preventing L.L. from testifying at Willies
trial, and that Roxanne was interested in obtaining a gun from
Flacko and had conversations with him to that effect. The issue is
whether these two conclusions, when considered in light of the other
evidence, establish arguable probable cause that Roxanne was a party
to an agreement to prevent L.L. from testifying at Willies trial.
The court determines that they do not.
First, no direct evidence establishes an agreement between
Willie and Roxanne to kill L.L. Burchetts report notes several
statements by Willie and Roxanne ostensibly evidencing such an
agreement. When read in context, however, none of those statements
supports the meaning attributed to them by Burchett. For example,
Burchetts report states that Roxanne was referring to murdering
L.L. when she asked Willie on April 24, 2004, How am I gonna do
that other thing? Rather than referring to murdering L.L., the
portions of the conversation omitted from Burchetts report make
clear that Roxanne is referring to a peep show. Similarly,
Burchetts report indicates that Willie told Roxanne there wont
be a trial if L.L. was not available to testify. Read in context,
however, Willie was attempting to explain to Roxanne his
understanding of the criminal process by telling her that the next
proceeding is not gonna be the trial. Burchett also noted that
Roxanne told Willie to have Flacko call her at night. Again, this
statement misconstrues the conversation. Rather than Roxanne giving
Willie instructions about Flacko, Willie was telling Roxanne to call
his lawyer that night because it was the best time to get hold of
her. In short, the quotes used by Burchett as direct evidence of
an agreement between Willie and Roxanne are inapposite.
Second, in her conversations with Willie, Roxanne consistently
expressed ignorance of any agreement between Willie and Flacko with
respect to L.L. Roxanne expressed initial reservations about
calling Flacko and told Willie that she would not have called Flacko
if Willie had not asked her to do so. Further, Roxannes April 27
conversation with Willie suggests that Roxanne did not know of any
discussions between Willie and Flacko with respect to her providing
Flacko with a picture of L.L. until after she spoke with Flacko
earlier that day.
Third, in the police-initiated meetings between Roxanne and
Flacko, Roxanne consistently rebuked Flackos overtures about
getting a picture of L.L. and making sure that L.L. was unavailable
to testify at Willies trial. Roxanne further expressed disapproval
of any conversations Willie had about keeping L.L. from testifying.
And although Roxanne showed interest in buying a gun from Flacko,
she also indicated that she did not have the money to buy a gun,
exhibited no concern about not being able to obtain one and never
alluded to her reason for acquiring a gun.
In sum, Flackos statement provides the sole basis for
establishing arguable probable cause. In that statement, however,
Flacko initially indicated that he did not know why Roxanne wanted
the gun. Only after being asked leading questions did Flacko
indicate that Roxanne wanted the gun to kill L.L. In the absence
of evidence corroborating Flackos statement, and in light of
16 Defendants also maintain the existence of arguable probable
cause based upon the prosecutor reaching the same conclusion after
an independent review of the evidence and the state district court
judge finding probable cause and issuing the arrest warrant
resulting in Roxannes second arrest. As discussed below, however,
the language in the complaint comes nearly verbatim from the
investigative reports, calling into question the independence of
the prosecutors review.
Roxannes consistent statements indicating that she was not involved
in a conspiracy to prevent L.L. from testifying, the court cannot
determine as a matter of law that arguable probable cause existed
to arrest Roxanne for conspiracy.16 The remaining issues are which
of the detective defendants may potentially be exposed to liability
and for which arrests. See Wilson v. Northcutt, 441 F.3d 586, 591
(8th Cir. 2006) (Liability for damages for a federal constitutional
tort is personal, so each defendants conduct must be independently
assessed. (citation omitted)).
b. Causation
A defendant is liable for a constitutional violation only if
his actions caused the violation. See Morton v. Becker, 793 F.2d
185, 187 (8th Cir. 1986) (Causation is an essential element of a
section 1983 cause of action.). A court looks to the common law
to assess causation in 1983 actions. Doran v. Eckold, 362 F.3d
1047, 1050 (8th Cir. 2004), revd on other grounds en banc, 409 F.3d
958 (8th Cir. 2005). Minnesota applies the substantial factor test
for causation. George v. Estate of Baker, 724 N.W.2d 1, 10 (Minn.
2006). In other words, a defendants action proximately caused the
harm if the act was a substantial factor in the harms occurrence.
Id. However, the chain of causation can be broken by a
superseding, intervening event. Wartnick v. Moss & Barnett, 490
N.W.2d 108, 113 (Minn. 1992). Proximate cause is a fact question
for the jury unless reasonable minds can arrive at only one
conclusion. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995).
Roxanne argues that Martin, Burchett, Kritzeck and Turpitt caused
both of her arrests.
i. First Arrest
The record establishes that Burchett not only arrested Roxanne
but also participated substantially in the investigation that led
to her arrest and the decision to arrest her. Therefore, Burchetts
actions were a substantial factor in Roxannes first arrest, and he
is not entitled to qualified immunity for that arrest. The record
also establishes that Turpitt was not involved in the investigation
leading to Roxannes first arrest or the decision to arrest her.
Therefore, Turpitts actions were not a substantial factor in
Roxannes first arrest, and he is entitled to qualified immunity for
that arrest. The remaining issues are whether Kritzecks and
Martins actions proximately caused Roxannes first arrest. See
Jordan v. Mosley, 487 F.3d 1350, 1354 (11th Cir. 2007) ([A] nonarresting
officer who instigates or causes an unlawful arrest can
still be liable under the Fourth Amendment. (citing Rodriguez v.
Ritchey, 539 F.2d 394, 400 (5th Cir. 1976)); accord New v. Fleming,
170 Fed. Appx. 298, 302 (5th Cir. 2006) ([I]nvestigating officers
may be subject to liability for unlawful arrest even where they did
not participate in the actual arrest.).
Kritzeck was assigned to investigate the alleged conspiracy
between Roxanne and Willie, he participated substantially in the
investigation, he was present at Roxannes arrest and he filed two
investigative reports after the arrest. In addition, the record is
ambiguous as to whether Kritzeck was involved in deciding to arrest
Roxanne. (See Kritzeck Dep. at 32; Burchett Dep. at 34; Martin Dep.
at 95.) In light of this evidence, the court determines that a fact
issue remains as to whether Kritzecks actions were a substantial
factor in Roxannes first arrest, and summary judgment is not
Martin initially interviewed Flacko, questioned him with
Burchett and participated in the April 29 surveillance. Martin,
however, did not participate in the decision to arrest Roxanne or
the May 6 surveillance and arrest. Moreover, Martin did not file
an investigative report after Roxannes arrest. Absent involvement
in the decision to arrest Roxanne or her actual arrest, the court
determines that Martins actions, as a matter of law, did not
proximately cause Roxannes arrest. Cf. New, 170 Fed. Appx. at 302
(significant that non-arresting officer participated in meeting
determining probable cause existed to arrest). Therefore, the court
grants summary judgment as to Martin on this claim.
17 Consistent with the courts conclusion that Martin did not
cause Roxannes first arrest, the court also determines that Martin
did not cause Roxannes second arrest. Further, because Turpitt
was not involved in the initial arrest, there is no causal chain
for the prosecutors action to interrupt. Rather, the court
addresses Roxannes claim against Turpitt below.
ii. Second Arrest
(A) Burchett and Kritzeck
Burchett and Kritzeck argue that the state prosecutors
independent action of drafting a complaint and causing it to be
filed interrupts the chain of causation and precludes their
liability for Roxannes second arrest.17 [T]here is a great deal
of tension in the caselaw about when official conduct counts as an
intervening cause. Hector v. Watt, 235 F.3d 154, 161 (3d Cir.
2000); see also Murray v. Earle, 405 F.3d 278, 292 n.51 (5th Cir.
2005) (gathering cases). The Eighth Circuit has held that absent
any specific allegations, such as the presentation of false evidence
or the withholding of evidence, [a] grand jury indictment breaks any
chain of causation. Ames v. United States, 600 F.2d 183, 185 (8th
Cir. 1979) (citations omitted). In a closely analogous
circumstance, other circuits have held that a prosecutors
independent review of the evidence and filing of a criminal
complaint interrupts the causal chain. See, e.g., Hector, 235 F.3d
at 163 (gathering cases and noting contradictory jurisprudence on
the issue); Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981),
modified by, 803 F.2d 1469 (9th Cir. 1986). The court finds the
Ninth Circuits rebuttable-presumption-based approach persuasive.
See Beck v. City of Upland, 527 F.3d 853, 862 (9th Cir. 2008).
The filing of a criminal complaint by a prosecutor creates an
evidentiary presumption that the prosecutor exercised independent
judgment in determining that probable cause for an accuseds arrest
existed, thereby breaking the chain of causation between an arrest
and prosecution and immunizing investigating officers from damages
suffered after the complaint was filed. Id. (citations and
quotations omitted). A plaintiff may rebut this presumption by
showing that the independence of the prosecutors judgment has been
compromised. Id. One circumstance in which the prosecutors
judgment has been compromised is where the prosecutor relied on the
police investigation and arrest when [s]he filed the complaint
instead of making an independent judgment on the existence of
probable cause for arrest. Id.
In this case, the state prosecutor is entitled to a presumption
that she exercised independent judgment in determining probable
cause existed to charge Roxanne with conspiracy to commit aggravated
first degree witness tampering. The prosecutor also submitted an
affidavit stating that she was not influenced or pressured by the
investigating officers in her probable cause determination and that
she decided to file charges only after independently reviewing the
investigative reports, listening to the phone conversations and
reviewing the audio from Flackos meetings with Roxanne. (Holton18
The complaint contained the following factual narrative:
On or about April 24, 2004, [Willie] approached [Flacko]
and asked him to make sure [L.L.] did not come to court
and testify against him. [Flacko] stated that [Willie]
told him that he did not care what he had to do to keep
L.L. from coming to court. [Flacko] stated that [Willie]
offered to pay him a couple Gs if he would get rid of
That same day, [Willie] contacted [Roxanne] and gave her
[Flackos] phone number. During the conversation,
[Willie] instructs [Roxanne] to find out where L.L. was
living. He states at this time that everything should
be knocked down before this thing even went to trial and
there wont be a trial.
On April 25, 2004, [Roxanne] calls [Willie] and tells him
she left a message on [Flackos] answering machine.
On April 26, 2004, [Willie] called [Flacko] at [Flackos]
residence. [Flacko] tells [Willie] that he does not have
a gun yet and [Willie] instructs [Flacko] to talk to
[Roxanne] about it. [Willie] instructs [Flacko], I
dont want to talk on the phone and gives [Flacko] the
address where he and [Roxanne] live.
On April 27, 2004, there is a phone conversation between
[Willie] and [Flacko]. [Flacko] tells [Willie] that he
had acquired a handgun. [Willie] instructs [Flacko] to
take this handgun to [Roxanne] and sell it to her. There
was some interference on the phone, at which time
[Willie] asked [Flacko] what was wrong with his
telephone. Immediately [Willie] told [Flacko], forget
about everything. Dont worry about it. Ill take care
of it myself.
On May 6, 2004, [Flacko] met with [Roxanne] at her home.
... [Flacko] makes reference to the plan between
[Willie], himself and [Roxanne] to have L.L. killed.
Dimick Aff. 3, 4.) The complaints language, however, is taken
almost verbatim from Burchetts and Kritzecks investigative
reports.18 Indeed, the complaint even mistakenly cites the meeting
During the conversation, [Roxanne] informs [Flacko] to
disregard what he and [Willie] had talked about in jail
and that she would take care of the problem. [Roxanne]
still wanted [Flacko] to acquire a handgun for her and
told [Flacko] that she wanted a gun she could handle but
also one that could cause some damage. [Roxanne] told
[Flacko] that she would be in receipt of some funds to
pay for the gun and would contact [Flacko] when those
funds became available. Later that day, [Roxanne] was
taken into custody.
(Beitz Aff. Ex. A.)
between Roxanne and Flacko identified in Kritzecks second report
as occurring on May 6. The court determines that this substantial
similarity between the investigative reports and the complaint
creates a fact issue as to whether the prosecutor merely relied on
the reports rather than exercising her independent judgment.
Therefore, the court cannot say as a matter of law that the
prosecutors actions broke the causal chain as to Roxannes second
arrest. Accordingly, summary judgment as to Kritzeck and Burchett
is denied on this claim.
(B) Turpitt
Roxanne argues that Turpitt proximately caused her arrest by
serving as the complaining witness. The record establishes that
Turpitt played no role in Roxannes investigation or arrest.
Rather, Burchett asked Turpitt to serve as the complaining witness
because Burchett was not going to be available at the time the
complaint was ready. Turpitt conducted no investigation into the
veracity of the complaints allegations but rather relied on
19 Roxannes opposition memorandum voluntarily dismisses the
substantive due process claims against Martin and Turpitt.
Burchetts attestations. Although Roxanne would not have been
arrested but for Turpitts actions, the court determines that
Turpitt reasonably relied on the information provided by Burchett,
and his actions were thus not a substantial factor in Roxannes
arrest. Cf. Doran, 409 F.3d at 965 ([L]aw enforcement officers may
rely on information provided by others in the law enforcement
community, so long as the reliance is reasonable. (citations
omitted)). Accordingly, Turpitt is entitled to qualified immunity
for Roxannes second arrest.
2. Substantive Due Process
Roxanne argues that Kritzeck and Burchett conducted a reckless
investigation in violation of her Fourteenth Amendment guarantee of
substantive due process.19 To establish a substantive due process
violation, a plaintiff must show that an executive official engaged
in conscience shocking conduct and that the official violated one
or more fundamental rights that are deeply rooted in this Nations
history and tradition, and implicit in the concept of ordered
liberty, such that neither liberty nor justice would exist if they
were sacrificed. Moran v. Clarke, 296 F.3d 638, 651 (8th Cir.
2002) (en banc) (Bye, J., concurring) (quoting Washington v.
Glucksberg, 521 U.S. 702, 720-21 (1997)). The Eighth Circuit
recognizes a substantive due process cause of action for an
20 Willies counsel in his state criminal proceeding submitted
an affidavit speculating that the conspiracy charges were brought
to disrupt the criminal proceedings and to gain leverage on
Roxanne. (Waite Aff. 1, 3.) However, no evidence supports this
speculation, and the court does not consider the affidavit evidence
of systemic pressure.
inadequate investigation so long as the failure to investigate was
intentional or reckless, thereby shocking the conscience.
Brockinton v. City of Sherwood, 503 F.3d 667, 672 (8th Cir. 2007)
(citing Wilson v. Lawrence County, Mo., 260 F.3d 946, 955-56 (8th
Cir. 2001)). This recklessness standard has a subjective
component. Amrine v. Brooks, 522 F.3d 823, 834 (8th Cir. 2008)
(citing Wilson, 260 F.3d at 956 n.9).
The record in this case establishes that Burchett and Kritzeck
myopically focused on Flackos initial statement and drew inferences
from the phone recordings and wired meetings not supported from an
objective perspective. The facts, however, do not show that
Burchett and Kritzeck coerced or threatened Roxanne, that they
purposely ignored exculpatory evidence or that there was systemic
pressure to implicate Roxanne.20 See Amrine, 522 F.3d at 835
(examples of reckless investigations). Rather, the detectives
misinterpretation of the evidence, standing alone, fails to
establish the requisite subjective component and permits only an
inference of negligence. However, [n]egligent failure to
investigate does not violate due process. Brockinton, 503 F.3d at
672 (citation omitted); see also Clemmons v. Armontrout, 477 F.3d
962, 966-67 (8th Cir. 2007). Therefore, the court determines that
no genuine issue of fact exists as to Burchetts and Kritzecks
recklessness, and they are entitled to qualified immunity.
Accordingly, summary judgment is warranted on this claim.
B. Municipal Liability
Roxanne argues that Hennepin Countys failure to adequately
train its detectives caused her unlawful arrest. Municipalities are
not vicariously liable under 1983 for an employees
unconstitutional acts. Szballa v. City of Brooklyn Park, 486 F.3d
385, 389 (en banc) (citing Monell v. Dept of Soc. Servs., 436 U.S.
658, 691 (1978)). Rather, municipal liability exists only if a
plaintiff can establish that either a municipal policy or custom is
the moving force behind the constitutional violation. Wedemeier v.
City of Ballwin, 931 F.2d 24, 26 (8th Cir. 1991). A municipalitys
inadequate training of employees can serve as the basis of 1983
liability only when a plaintiff shows that the failure to train
amounts to deliberate indifference to the rights of persons with
whom the police come into contact. City of Canton v. Harris, 489
U.S. 378, 388-89 (1989). To establish deliberate indifference, a
plaintiff must prove that the municipality had notice that its
procedures were inadequate and likely to result in a violation of
constitutional rights. Jennings v. Wentzville R-IV Sch. Dist.,
397 F.3d 1118, 1122 (8th Cir. 2005) (quoting Larson v. Miller, 76
F.3d 1446, 1454 (8th Cir. 1996) (en banc)).
21 Roxannes complaint indicates that this claim applies to all
defendants, but she excludes Martin from her argument in her
opposition memorandum. However, even if Roxanne maintained this
claim against Martin, the court would grant summary judgment
because nothing in the record suggests Martin acted with malicious
At oral argument, Roxannes counsel indicated that the only
record evidence supporting this claim are statements made by
Kritzeck, Burchett and Martin in their depositions regarding
exculpatory evidence and the degree of proof necessary before making
an arrest. The record, however, is devoid of specific evidence
about Hennepin Countys training or how that training relates to the
tasks performed by the officers. Absent such evidence, the
deposition testimony and Roxannes allegations do not create a
genuine issue of fact as to Hennepin Countys liability. See
Robinsette v. Jones, 476 F.3d 585, 591 (8th Cir. 2007).
Accordingly, the court grants summary judgment on Roxannes
municipal liability claim.
III. Malicious Prosecution Claim
Finally, Roxanne asserts a malicious prosecution claim against
Burchett, Kritzeck and Turpitt.21 To support a malicious
prosecution claim, a plaintiff must establish that: (1) the action
was brought without probable cause or reasonable belief that the
plaintiff would ultimately prevail on the merits; (2) the action
[was] instituted and prosecuted with malicious intent; and (3) the
action ... terminate[d] in favor of the defendant. Kellar v.
VonHoltum, 568 N.W.2d 186, 192 (Minn. Ct. App. 1997) (citations
As discussed above, the misinterpretation of the evidence by
Burchett and Kritzeck, without more, permits an inference of
negligence. However, the evidence does not support a reasonable
inference that Burchett and Kritzeck acted with malicious intent in
investigating Roxanne and presenting her case to a prosecutor.
Moreover, the record does not support an inference that Turpitt
acted with malicious intent by serving as a complaining witness upon
Burchetts request. Therefore, summary judgment on this claim is
Accordingly, based upon the file, record and proceedings
herein, and for the reasons stated, IT IS HEREBY ORDERED that
defendants motion for summary judgment [Doc. No. 31] is:
1. Granted as to all claims against defendants Martin,
Turpitt and Hennepin County.
2. Granted as to the substantive due process and malicious
prosecution claims against Burchett and Kritzeck.
3. Denied as to the Fourth Amendment claims against Burchett
and Kritzeck.
Dated: August 19, 2008
s/David S. Doty
David S. Doty, Judge
United States District Court


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