Oakley Engesser v. Edward Fox

O
                 United States Court of Appeals
                             For the Eighth Circuit
                        ___________________________

                                No. 19-3232
                        ___________________________

                            Oakley Bernard Engesser

                                     Plaintiff – Appellant

                                        v.

   Trooper Edward Fox, of the South Dakota Highway Patrol, in his individual
 capacity; Michael Kayras, Trooper Fox’s supervisor, in his individual capacity;
Jennifer Utter, Meade County States Attorney; Gordon Swanson, Meade County
States Attorney; Amber Richey, Meade County Assistant States Attorney; Meade
                                   County

                                   Defendants – Appellees
                                 ____________

                    Appeal from United States District Court
                  for the District of South Dakota – Rapid City
                                   ____________

                          Submitted: October 22, 2020
                             Filed: April 7, 2021
                                ____________

Before COLLOTON, GRASZ, and STRAS, Circuit Judges.
                          ____________

STRAS, Circuit Judge.

       After spending more than 10 years in prison, Oakley Engesser was released
when new evidence suggested that he was not the driver of a vehicle that caused a
fatal accident. Not long after, he filed a lawsuit alleging that the investigating
officers had violated his constitutional rights. See 42 U.S.C. § 1983. The district
court1 dismissed the lawsuit at summary judgment, and we affirm.

                                         I.

      Engesser and Dorothy Finley left the Full Throttle Saloon in a red Corvette.
Seen traveling at high speed, the Corvette eventually hit a minivan and rolled a few
times before coming to rest on its roof in the median of a highway. Engesser, who
had been thrown from the vehicle, was found several feet away from the driver’s
side door. Finley, pronounced dead at the scene, was trapped inside the vehicle on
the passenger side. There was one unknown for law enforcement. Who had been
driving, Engesser or Finley?

      Based primarily on the physical evidence at the scene, Trooper Edward Fox
concluded it was Engesser. He reached this conclusion for three main reasons: (1)
Engesser was found outside the vehicle on the driver side; (2) Finley had been
trapped inside on the passenger side; and (3) the injuries both suffered were
consistent with where they were found. A jury eventually agreed with Fox’s
assessment and found Engesser guilty of one count of vehicular homicide and two
counts of vehicular battery. See State v. Engesser, 

661 N.W.2d 739

, 742–43 (S.D.
2003) (“Engesser I”).

        Engesser spent the next decade trying to prove his innocence. He finally
succeeded in overturning his convictions in 2014, when a South Dakota trial court
granted habeas relief after several witnesses came forward to testify that a woman
had been driving the Corvette. The South Dakota Supreme Court affirmed, holding
that, in light of the new evidence, “no reasonable juror would have found [Engesser]




      1
        The Honorable Jeffrey L. Viken, Chief Judge, United States District Court
for the District of South Dakota.
                                      -2-
guilty of the underlying offense.” Engesser v. Young, 

856 N.W.2d 471

, 484 (S.D.
2014) (“Engesser II”).

       It was not long before Engesser filed a federal lawsuit against Trooper Fox
and his supervisor, Michael Kayras, for violating his constitutional rights. See 42
U.S.C. § 1983. The complaint alleged, among other things, that they had recklessly
investigated the case by ignoring evidence, failing to interview witnesses, and
carelessly storing the Corvette. Also included were a failure-to-supervise claim
against Kayras and a civil-conspiracy claim.

       None of these claims made it past summary judgment. As relevant here, the
district court determined that Trooper Fox was entitled to qualified immunity and
that the other claims failed for, among other reasons, the absence of a constitutional
violation.

                                          II.

      We review the district court’s decision to grant summary judgment de novo.
See Torgerson v. City of Rochester, 

643 F.3d 1031

, 1042 (8th Cir. 2011) (en banc).
“Summary judgment [was] appropriate [if] the evidence, viewed in [the] light most
favorable to [Engesser], show[ed] no genuine issue of material fact exist[ed] and the
[defendants were] entitled to judgment as a matter of law.” Spangler v. Fed. Home
Loan Bank of Des Moines, 

278 F.3d 847

, 850 (8th Cir. 2002).

                                          A.

      For Engesser’s reckless-investigation claims, the analysis comes down to two
questions. First, did Trooper Fox or his supervisor violate a constitutional right?
Second, was the right clearly established? See Morgan v. Robinson, 

920 F.3d 521

,
523 (8th Cir. 2019) (en banc). If the answer to either question is “no,” we will affirm.


                                          -3-
See

id. (explaining that we

may answer the qualified-immunity questions in either
order).

                                         1.

        To be liable under a reckless-investigation theory, Trooper Fox must have
conducted a constitutionally deficient investigation—one that was so deficient, in
fact, that it “shock[ed] the conscience.” Akins v. Epperly, 

588 F.3d 1178

, 1183 (8th
Cir. 2009); see U.S. Const. amend. XIV. To meet this standard, a plaintiff must
show reckless or purposeful misconduct, not mere negligence. See Winslow v.
Smith, 

696 F.3d 716

, 732 (8th Cir. 2012).

       We have allowed claims of this type to proceed when there is evidence that
an investigator: (1) “attempted to coerce or threaten the defendant”; (2)
“purposefully ignored evidence suggesting the defendant’s innocence”; or (3)
encountered “systematic pressure to implicate the defendant in the face of contrary
evidence.” 

Akins, 588 F.3d at 1184

; see also Johnson v. Moody, 

903 F.3d 766

, 773
(8th Cir. 2018) (explaining that this is “a question of law to which we apply a
rigorous standard”). The record in this case is devoid of evidence of threats,
coercion, or systematic pressure, so the issue for us is whether Trooper Fox or his
supervisor recklessly 3 or purposefully ignored evidence suggesting that Finley was
the driver. See 

Akins, 588 F.3d at 1184

.

      Engesser first argues that Trooper Fox ignored what eyewitnesses at the scene
had to say. Construing the facts in Engesser’s favor, one of them used female

      3
       As we have explained, “purposefully ignor[ing] evidence suggesting the
defendant’s innocence,” 

Akins, 588 F.3d at 1184

(emphasis added), is a “tell-tale
sign[] of a reckless investigation,” Dean v. Searcey, 

893 F.3d 504

, 514 (8th Cir.
2018) (emphasis added). Just like purposefully ignoring evidence might lead to the
conclusion that an officer’s investigation was reckless, so too might recklessly
ignoring evidence lead to the conclusion that an officer’s investigation, considered
                                        -4-
pronouns to describe the driver and another told Fox that a woman had been driving
the Corvette earlier in the day. Based on this evidence, Engesser believes it was
conscience shocking for Fox to conclude that he, rather than Finley, had been
driving.

       Even if Trooper Fox could have conducted a more thorough investigation,
there is no evidence that he recklessly or purposefully ignored these eyewitnesses.
See 

Akins, 588 F.3d at 1184

; Kingsley v. Lawrence Cnty., 

964 F.3d 690

, 702 (8th
Cir. 2020) (holding that a “questionable or incomplete” investigation is not
conscience shocking “as a matter of law” (quotation marks omitted)). A failure to
ask the right questions and to reconcile inconsistent evidence may be shoddy police
work, but in this case, it reflects nothing more than negligent or grossly negligent
conduct. See 

Johnson, 903 F.3d at 773

(ignoring “factual inconsistencies” and
“negligently fail[ing] to look into leads” is not enough to show “reckless,
conscience-shocking” conduct); see also 

Amrine, 522 F.3d at 833

(holding that even
gross negligence is not enough). After all, faced with conflicting information,
investigators sometimes have no choice but to “discount[]” witness statements that


as a whole, was less than reckless. The reason is that, to be actionable, the
investigation itself must shock the conscience, “a rigorous standard.” 

Johnson, 903
F.3d at 773

; see also Holloway v. Del. Cnty. Sheriff, 

700 F.3d 1063

, 1069 (7th Cir.
2012) (“[T]he inquiry involves an appraisal of the totality of the circumstances rather
than a formalistic examination of fixed elements.” (internal quotation marks
omitted)); Davis v. White, 

794 F.3d 1008

, 1015 (8th Cir. 2015). To the extent the
concurrence insists that “recklessly ignor[ing] evidence [of] innocence” may be
enough, we note that it makes no difference here. 

Winslow, 696 F.3d at 734

; see

id.
at 736

(concluding that officers had purposefully ignored exculpatory evidence and
coerced witnesses into providing false testimony); see also Wilson v. Lawrence
Cnty., 

260 F.3d 946

, 957 (8th Cir. 2001) (deciding that recklessness was enough
when officers failed “to investigate [other] leads” in light of the fact that all they had
was “an involuntary confession and no reliable corroborating evidence” (emphasis
added)). The investigators in this case, as we conclude below, neither purposefully
nor recklessly ignored evidence. See 

Wilson, 260 F.3d at 957

. At most, they were
grossly negligent. See

id. at 955.
-5-

“do not fit with the evidence [found] at the scene of the crime.” 

Winslow, 696 F.3d
at 734

.

        Failing to locate an unavailable witness does not qualify as recklessly or
purposefully ignoring evidence either. During the investigation, Trooper Fox
received a tip that a security guard at the Full Throttle Saloon saw Finley driving
when she and Engesser left the bar that day. The security guard had fled the
jurisdiction, however, to elude an arrest warrant. It was not until years later, shortly
before Engesser’s habeas proceedings, that the security guard resurfaced and agreed
to testify. See Engesser 

I, 661 N.W.2d at 751

–53; Engesser 

II, 856 N.W.2d at 475

.
Perhaps Fox could have done more to find him, but his failure to do so did not “shock
the conscience.” 

Kingsley, 964 F.3d at 701

; see also Folkerts v. City of Waverly,

707 F.3d 975

, 981 (8th Cir. 2013) (holding that it did not shock the conscience for
an investigator to negligently fail to interview the alleged victim or other potential
witnesses).

      Nor did Trooper Fox’s failure to ask additional questions at the scene shock
the conscience. Key to Fox’s conclusion about the identity of the driver was where
the vehicle’s occupants were found: Engesser near the open driver’s side door and
Finley trapped on the passenger side. Had Fox asked more questions, according to
Engesser, he never would have assumed that the driver’s side door opened during
the accident, because he would have known that a passerby opened it later.

       It is true that this discovery could have changed the course of the investigation.
But by the time Trooper Fox arrived, the passerby was already gone. He had opened
the door to check on Finley, but quickly left once he saw that she was no longer
alive. It is undisputed that no one told Trooper Fox how the door opened or who
opened it, and like the security guard, the passerby only came forward years later.
A failure to interview an unknown witness does not “shock the conscience.”

Kingsley, 964 F.3d at 701

. After all, Fox first had to know about a lead before he
could recklessly or purposefully ignore it. See id.; 

Winslow, 696 F.3d at 734

. The

                                          -6-
bottom line is that, even if his assumption about how the door opened turned out to
be mistaken, in the absence of any contrary evidence, he “was, at most, negligent.”

Kingsley, 964 F.3d at 701

. And as we already know, negligence is not enough. See

Akins, 588 F.3d at 1184

.

                                          2.

        The officers’ decision to leave the Corvette at a local impound lot also did not
rise to the level of reckless or purposeful misconduct. See 

Winslow, 696 F.3d at 732

.
Engesser argues that the recklessness of Trooper Fox and his supervisor can be
inferred through their “lackadaisical attitude” toward its storage. Specifically, they
allowed the vehicle to be kept outside and did not prevent Finley’s family from
accessing it and removing evidence.

       Even if we were to assume that the proper lens for analyzing this lost-evidence
claim is substantive due process, neither of these actions demonstrate that the
officers recklessly or purposefully destroyed evidence. See generally White v.
McKinley, 

519 F.3d 806

, 813–14 (8th Cir. 2008) (analyzing an “investigating
officer’s failure to preserve evidence potentially useful to the accused” under the
principles of Brady v. Maryland, 

373 U.S. 83

(1963)). Both were unaware that the
impound lot would allow Finley’s daughter to remove items from the vehicle. And,
as the South Dakota Supreme Court observed, failing to ensure that the vehicle
would be kept inside or otherwise protected from the elements could “only be
deemed negligent.” Engesser 

I, 661 N.W.2d at 755

.

                                          B.

       The failure to establish a constitutional violation also spells the end for
Engesser’s remaining claims. To prevail on a theory of supervisory liability, he had
to prove that Kayras “directly participate[d] in a constitutional violation or [that he]
fail[ed] to properly supervise and train” Trooper Fox. Andrews v. Fowler, 

98 F.3d

-7-

1069, 1078 (8th Cir. 1996). There is no proof, as we conclude above, that Kayras
directly violated Engesser’s rights. And in the absence of any “underlying
constitutional violation” by Fox, the failure-to-supervise claim “automatically
fail[s].” Henry v. Johnson, 

950 F.3d 1005

, 1015 (8th Cir. 2020) (quotation marks
omitted).

       We reach a similar conclusion about the conspiracy claim. To prevail,
Engesser had to prove, among other elements, the “deprivation of a constitutional
right or privilege.” Askew v. Millerd, 

191 F.3d 953

, 957 (8th Cir. 1999). With no
“actual deprivation” here, there can be no liability. 

Kingsley, 964 F.3d at 702

–03
(quotation marks omitted); see 

Henry, 950 F.3d at 1015

.

                                          III.

      We accordingly affirm the judgment of the district court.

COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.

      I concur in all but footnote three, which is unnecessary to the decision.

       As the opinion states, ante, at 4, a plaintiff alleging a constitutional violation
based on an officer’s alleged failure to investigate “must show reckless or purposeful
misconduct, not mere negligence.” In Akins v. Epperly, 

588 F.3d 1178

(8th Cir.
2009), the court said that purposefully ignoring evidence suggesting a defendant’s
innocence is one of several circumstances that “indicate reckless or intentional
failure to investigate that shocks the conscience.”

Id. at 1184.

Wilson v. Lawrence
County, 

260 F.3d 946

(8th Cir. 2001), held that subjective recklessness was the
proper standard to apply in evaluating an alleged failure to investigate in that case,
because the officers “had the luxury of unhurried judgments and repeated
reflections.”

Id. at 956-57

& n.9. “The Supreme Court and this court take a context-
specific approach to determining what mens rea on the part of an officer shocks the

                                          -8-
conscience.” Briscoe v. County of St. Louis, 

690 F.3d 1004

, 1011 (8th Cir. 2012);
see County of Sacramento v. Lewis, 

523 U.S. 833

, 846-47 (1998). Evidence of
negligence or gross negligence, however, is not enough to establish a constitutional
violation. Amrine v. Brooks, 

522 F.3d 823

, 833 (8th Cir. 2008).

        Although the opinion provides that “the issue for us is whether Trooper Fox
or his supervisor recklessly or purposefully ignored evidence” of innocence,
footnote three then includes the following deduction: because Dean v. Searcey, 

893
F.3d 504

(8th Cir. 2018), said that purposefully ignoring evidence is a sign of a
reckless investigation, recklessly ignoring evidence could indicate a non-reckless
investigation. The premise is flawed. The truncated quotation from Dean says this
in full: “In White, we found that one of the tell-tale signs of a reckless investigation
was ‘evidence that investigators purposefully ignored evidence suggesting the
defendant’s 

innocence.’” 893 F.3d at 514

. But the cited decision, White v. Smith,

696 F.3d 740

(8th Cir. 2012), actually said the following: “We have also previously
recognized that the following circumstances indicate conscience-shocking behavior
in the context of a reckless or intentional failure to investigate claim: ‘(1) . . . , (2)
evidence that investigators purposefully ignored evidence suggesting the
defendant’s innocence, (3) . . . .’”

Id. at 758

(emphasis added) (quoting 

Akins, 588
F.3d at 1184

). In other words, White, like Akins, allowed that purposefully ignoring
evidence indicates an intentional failure to investigate. Dean’s misdescription of
White should not take on a life of its own.

      The footnote also introduces a new concept: proof that an officer recklessly
ignored evidence of a suspect’s innocence could lead to a conclusion that the officer
did not recklessly fail to investigate. If an officer performs non-reckless work during
some of an investigation, but recklessly ignores evidence that would exonerate the
suspect, the officer would not exhibit a culpable mental state if the “investigation,
considered as a whole,” was not reckless. None of our cases has followed that
approach, and the opinion in this case does not either.


                                           -9-
      The dicta in footnote three have no bearing on this appeal. A plaintiff like
Engesser must show that he was injured because an officer, acting with a sufficiently
culpable state of mind, engaged in official action that shocks the conscience—a
demanding standard that is satisfied only by “patently egregious” conduct. 

Lewis,
523 U.S. at 850

. The evidence here is insufficient to show that the defendants
engaged in purposeful or subjectively reckless misconduct that shocks the
conscience, so the claim fails under either standard of culpability.
                          _________________________




                                        -10-

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