United States District Court, D. Nebraska
JAMES L. DEAN, Plaintiff,
RICHARD T. SMITH, et al., Defendants. LOIS P. WHITE, as Personal Representative of the Estate of Joseph White, deceased, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants. KATHLEEN A. GONZALEZ, Plaintiff,
RICHARD T. SMITH, et al., Defendants. THOMAS W. WINSLOW, Plaintiff,
RICHARD T. SMITH, et al., Defendants. ADA JOANN TAYLOR, Plaintiff,
RICHARD T. SMITH, et al., Defendants. DEBRA SHELDEN, Plaintiff,
COUNTY OF GAGE, NEBRASKA, et al., Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE.
defendants have filed a motion in limine to preclude the
plaintiffs from arguing or presenting evidence to prove (1)
“[t]hat liability of the defendants can be based on any
activity that took place prior to January 1989 and after May
25, 1989, the date that Plaintiff Kathleen Gonzalez was
arrested in Denver, Colorado, ” or (2) “[t]hat
former County Attorney Richard Smith could be a
co-conspirator with the Defendants” (Filing No. 502
at CM/ECF p. 2). The motion will be granted in part and
denied in part.
respect to the first portion of the motion in limine, the
defendants claim that “[o]n January 13, 1989 defendant
Burdette Searcy began investigating the sexual assault and
murder of Helen Wilson ... by interviewing Lisa Podendorf
Brown, ” and “[t]he criminal investigation ended
when the last plaintiff [Gonzalez] was criminally charged on
May 25, 1989” (Filing No. 503 at CM/ECF pp.
2-3). In response, the plaintiffs state Searcey has
“testified that he investigated the Wilson homicide as
a private detective in April 1985, ” and “[t]he
record in this matter clearly demonstrates that nearly all of
the ‘investigation’ was done after a
‘criminal complaint’ had been filed against a
plaintiff” (Filing No. 506 at CM/ECF p. 2).
The defendants “do not dispute that defendant Searcy
used the knowledge he gained as a private detective in his
1989 investigation” but state his “investigation
in 1985 was not conducted under color of state law in that he
was not employed as a law enforcement officer at that
time” (Filing No. 510 at CM/ECF p. 2). The
defendants’ relevancy objections to any evidence
concerning events occurring before January 13, 1989, or after
May 25, 1989, will need to be taken up at trial.
extent the defendants may be claiming as a matter of
law that any actions taken by them after May 25, 1989,
could not have been investigatory in nature, because all of
the plaintiffs had been arrested and charged by that date,
the court finds no legal support for such a position.
Furthermore, even if the investigation was concluded by that
date, the defendants’ alleged manufacturing of false
evidence could have continued.
respect to the second portion of the motion in limine, the
Eighth Circuit has held “there is no evidence that any
action taken by Smith prior to the filing of criminal
complaints against Plaintiffs was unconstitutional. And once
the charging documents were filed, Smith was protected by
absolute immunity.” Winslow v. Smith, 696 F.3d
716, 739 (8th Cir. 2012). The defendants claim that because
of this ruling, “Smith could not have been involved in
any unlawful action” and “[i]t is not possible to
use Smith’s actions ... to find that any of the
defendants violated the plaintiff’s due process
rights” (Filing No. 503 at CM/ECF pp. 5-6).
The court only partially agrees with these statements. That
is to say, while the court agrees that Smith could not have
been a member of an unlawful conspiracy prior to May 25,
1989, because it is the law of the case that no action taken
by Smith prior to the filing of criminal complaints against
the plaintiffs was unconstitutional,  the court disagrees with the
defendants’ contention that Smith could not have
conspired with them after May 25, 1989, or could not have
committed an unlawful act as a prosecutor after that date.
immunity exists under section 1983 because “it has been
thought in the end better to leave unredressed the wrongs
done by dishonest officers than to subject those who try to
do their duty to the constant dread of retaliation.”
Imbler v. Pachtman, 424 U.S. 409, 428 (1976)
(quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d
Cir. 1949)). But absolute immunity does not extend to persons
who conspire with a prosecutor to deprive other persons of
their civil rights. See Dennis v. Sparks, 449 U.S.
24, 28 (1980) (“[T]he private parties conspiring with
the judge were acting under color of state law; and it is of
no consequence in this respect that the judge himself is
immune from damages liability. Immunity does not change the
character of the judge’s action or that of his
co-conspirators.”); Ellis v. Kneifl, No. CV
85-L-299, 1986 WL 15945, at *1 (D. Neb. Sept. 12, 1986) (a
person who has conspired with immune public officials
receives no derivative immunity).
none of the defendants can have derivative liability for any
action taken by Smith prior to May 25, 1989, because the
Eighth Circuit has determined that Smith’s actions
prior to such date were not unconstitutional, neither the
law-of-the-case doctrine nor the absolute-immunity doctrine
will prevent the jury from hearing evidence concerning
actions taken by Smith after such date. Whether Smith
conspired with any of the defendants after May 25, 1989,
remains to be proved, however.
the defendants argue in their supporting brief that
“evidence of the actions of former Gage County Attorney
Richard Smith took as prosecutor are [sic] unduly
prejudicial and should be excluded from trial pursuant to
Fed. R. Evid. 403” (Filing No. 503 at
CM/ECF p. 5). This objection fails because there is no
showing of “undue prejudice, ” which, in the
context of Rule 403, “means an undue tendency to
suggest decision on an improper basis, ...” Fed. R.
Evid. 403, Advisory Committee Notes to 1972 Proposed
Rules. “A trial judge can and should exclude evidence
when convinced that it will create a danger of prejudice
outweighing its probative value.” Wade v.
Haynes, 663 F.2d 778, 783 (8th Cir. 1981),
aff’d sub nom. Smith v. Wade, 461 U.S. 30
(1983) (citing E. I. DuPont DeNemours v. Berkley &
Co., Inc., 620 F.2d 1247, 1272 (8th Cir. 1980)).
“However, rule 403 of the Federal Rules of
Evidence does not offer protection against evidence that
is merely prejudicial in the sense of being detrimental to a
party’s case. The rule protects against evidence that
is unfairly prejudicial, that is, if it tends to suggest
decision on an improper basis.” Id.(citing
Carter v. Hewitt, 617 F.2d 961, 972 (3rd Cir.
1980)). “In weighing the probative value of evidence
against the dangers and considerations enumerated in Rule
403, the general rule is that the balance should be struck in
favor of admission.” Block v. R.H. Macy &
Co., 712 F.2d 1241, 1244 (8th Cir. 1983) (quoting
United States v. Day, 591 F.2d 861, 878 (D.C.Cir.
the defendants may consider it unfair that they can be held
liable as co-conspirators for actions that were taken by
Smith while he enjoyed absolute immunity, that is the law.
Accordingly, IT IS ORDERED that the defendants’ motion
in limine (Filing No. 502 in lead case) is granted
in part and denied in part, as follows:
Because it is the law of the case that there is no evidence
any action taken by Richard Smith prior to the filing of
criminal complaints against the plaintiffs was
unconstitutional, the plaintiffs cannot claim or attempt to
prove that Richard Smith conspired with any of the defendants
prior to May 25, 1989, or that any defendant is liable for
any action that was taken by Richard Smith prior to May 25,
all other respects, the motion is denied.
 All references are to filings in
Dean v. Smith, et al., Case No. ...