Date: 10-28-2017

Case Style:

Case Number: 16-3451

Judge: Loken

Court: United States Court of Appeals for the Eighth Circuit on appeal from the Eastern District of Missouri (St. Louis County)

Plaintiff's Attorney: Not Available

Defendant's Attorney: Not Available

Description: Plaintiffs S.M., L.M., K.W., and K.S. are former participants in the Adult Drug
Court of Missouri’s 45th Judicial Circuit (“Drug Court”), an alternative court
established to dispose of drug cases pursuant to Mo. Rev. Stat. §§ 478.001-.006.
Plaintiffs brought this 42 U.S.C. § 1983 damage action against Lincoln County and
other defendants, asserting that Scott Edwards, then a lieutenant in the Lincoln
County Sheriff’s Department, violated their substantive due process rights by
committing repeated acts of sexual abuse while serving in his position as the
“tracker” (monitor) of Drug Court participants.

In a prior appeal, we reversed the denial of qualified immunity to individual
defendant Michael Krigbaum, who served as Sheriff of Lincoln County at the time
of Edwards’s criminal misconduct. S.M. 1 v. Krigbaum, 808 F.3d 335 (8th Cir. 2015).
On remand, the claims against Lincoln County proceeded to a three-day trial. The
jury found that the Lincoln County Sheriff, a County policy maker, was deliberately
indifferent to plaintiffs’ constitutional rights in failing to supervise tracker Edwards.
The jury awarded compensatory damages of $750,000 to S.M. and $500,000 each to
K.W., K.S., and L.M. The district court2 denied Lincoln County’s renewed motion
for judgment as a matter of law or in the alternative for a new trial. Lincoln County
appeals the denial of its post-verdict motion.3 Applying the deferential standards for
review of a jury verdict and the denial of a motion for new trial, we affirm.

I.

It is undisputed that Edwards “deprived plaintiffs of a clearly established
constitutional right to substantive due process when he committed an egregious,
1Edwards pleaded guilty to exploiting his tracker position to gain the trust of
Drug Court participants S.M., L.M., K.W., and K.S. and then coercing their
submission to sexual assaults. Edwards is serving a ten-year prison sentence.
2The Honorable Patricia L. Cohen, United States Magistrate Judge for the
Eastern District of Missouri.

3Lincoln County also appeals the district court’s denial of its pretrial motions
for summary judgment. Following trial on the merits, we do not consider
interlocutory rulings concerning sufficiency of the evidence. See N.Y. Marine &
General Ins. Co. v. Cont’l Cement Co., 761 F.3d 830, 838 (8th Cir. 2014).

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nonconsensual entry into the body which was an exercise of power without any
legitimate governmental objective.” Krigbaum, 808 F.3d at 340 (quotation omitted).
Edwards’s tracker duties included curfew checks at participants’ homes at 10 p.m.;
searches of their homes, refrigerators, and trash for evidence of drug use or other
Drug Court program noncompliance; conducting on-site urine analysis tests;
reporting information about participants’ compliance at Drug Court team meetings;
and taking participants who violated program requirements into custody. The Drug
Court circuit judge issued sanctions and punishments, including jail time, for program
noncompliance.

Some of Edwards’s sexual assaults occurred while plaintiffs were incarcerated
as a Drug Court sanction in a Sheriff’s Department jail. Assaults also occurred when
Edwards visited the plaintiffs’ homes in the evenings for curfew checks, or while
conducting strip searches, or while transporting participants in his patrol car. On
several occasions, Edwards required plaintiffs to remove their bras and expose their
breasts to “shake out” evidence of drug use. On another occasion, Edwards fondled
and abused a participant while feigning to look for evidence of drug use. Edwards
assaulted S.M. after moving her to a motel room. Plaintiffs did not report the assaults
because they believed Edwards held power over them at the Drug Court. He would
cover up a victim’s Drug Court violations, so she felt “he had something solid on me
that he could use against me to actively do whatever it was he was going to do.”
After learning that L.M. had relapsed, Edwards told her she could “earn it back”
(avoid sanction) through sexual favors.

At issue is Lincoln County’s liability for these egregious violations. The jury
found that Lincoln County was deliberately indifferent to an obvious risk that the
County’s failure to supervise Edwards would result in these violations of plaintiffs’
rights. Lincoln County argues that plaintiffs presented legally insufficient evidence
to support this finding, which is a prerequisite to imposing § 1983 municipal liability.

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We must uphold the verdict unless it has no legally sufficient evidentiary basis.
Jackson v. City of St. Louis, 220 F.3d 894, 896 (8th Cir. 2000).

A. A municipality (or County) “may not be found liable unless action pursuant
to official municipal policy of some nature caused a constitutional tort.” Szabla v.
City of Brooklyn Park, MN., 486 F.3d 385, 389 (8th Cir. 2007) (en banc), quoting
Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). It “cannot be held liable
on a respondeat superior theory, that is, solely because it employs a tortfeasor” such
as Edwards. Id. Where municipal action “itself violates federal law, or directs an
employee to do so, resolving [] issues of fault and causation is straightforward.” Bd.
of Cty. Comm’rs v. Brown, 520 U.S. 397, 404-05 (1997). But where the claim is that
municipal action lawful on its face caused an employee to inflict constitutional injury,
“rigorous standards of culpability and causation must be applied to ensure that the
municipality is not held liable solely for the actions of its employee.” Id. at 405. In
City of Canton v. Harris, 489 U.S. 378, 388 (1989), the Court held that municipal
liability for a claim such as failure to supervise employee Edwards -- plaintiffs’
theory in this case -- requires proof that the failure “amounts to deliberate indifference
to the rights of persons with whom the [employee] come[s] into contact.” Municipal
inaction must be the “moving force [behind] the constitutional violation.” Id. at 389
(alteration in original) (quotation omitted); see Szabla, 486 F.3d at 390-91.

Deliberate indifference in this context “is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious consequence
of his action.” Brown, 520 U.S. at 410. The issue is whether, “in light of the duties
assigned to specific officers or employees the need for more or different training [or
supervision] is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need.” Canton, 489 U.S. at 390, quoted in Liebe
v. Norton, 157 F.3d 574, 579 (8th Cir. 1998); cf. Cash v. Cty. of Erie, 654 F.3d 324,
337 (2d Cir. 2011) (failure-to-supervise claim), cert. denied, 565 U.S. 1259 (2012).

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“A pattern of similar constitutional violations by untrained employees is ordinarily
necessary to demonstrate deliberate indifference for purposes of failure to train.”
Connick v. Thompson, 563 U.S. 51, 62 (2011) (quotation omitted). “In resolving the
issue of a city’s liability, the focus must be on adequacy of the [supervision] in
relation to the tasks the particular officers must perform.” Canton, 489 U.S. at 390.
“When the issue is qualified immunity from individual liability for failure to
train or supervise, deliberate indifference is a subjective standard” that requires
personal knowledge of the constitutional risk posed by inadequate supervision, the
basis for our conclusion that Sheriff Krigbaum was entitled to qualified immunity in
Krigbaum, 808 F.3d at 341. But an objective standard of deliberate indifference
applies to plaintiffs’ failure-to-supervise claims against the County. Id. at n.3; see
Farmer v. Brennan, 511 U.S. 825, 840-42 (1994); Canton, 489 U.S. at 390.

B. A unique aspect in applying these established municipal-liability principles
to this case is the central role played by the multi-agency Drug Court. Though
generally authorized by state statute, the Drug Court was established by a lengthy
August 2006 Memorandum of Understanding (“MOU”) between the Forty-Fifth
Circuit Court, “the local Defense Bar, The Sheriffs of Lincoln and Pike Counties,
Department of Corrections District Office of Probation and Parole, and designated
substance abuse treatment providers.” Sheriff Krigbaum’s predecessor signed the
MOU as Lincoln County Sheriff, thereby undertaking to be a “team member” and “to
enhance interagency communication to provide an effective treatment team for the
Drug Court participants” through this “linkage of services.” In a section of the MOU
entitled “SHERIFFS,” the Lincoln County Sheriff agreed to a list of eight “core
competencies,” including:

1. Participates fully as a Drug Court team member, committing him or
herself to the program mission and goals, and works as full partner to
insure their success.

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7. Provides a monitoring function to the team (along with supervision
and treatment): i.e. going on joint home visits, reporting on a
participant’s activities in the community, and supervising participation
in community service.

The Drug Court Policies and Procedures Manual states that the Lincoln County
Sheriff’s Department provides the monitoring tracker. The Manual explains:
The role of the tracker is to conduct home visits and other participant
contact . . . . The duties of tracker will be, but not limited to, conduct
home visits, inspect participants’ homes for indications of drug and/or
alcohol use, curfew compliance, conduct breathalyzer tests, on-site UA
[urine analysis] tests and employment verification. If the tracker finds
that the participant has violated drug court policy, he will contact the
judge to determine if the participant should be taken into custody as a
sanction.

In Krigbaum, we noted that “[t]he Drug Court’s multi-agency membership
resulted in significant confusion and ignorance regarding who was supervising
Edwards on a day-to-day basis when he served as tracker.” 808 F.3d at 341. The
evidence at trial bore this out. Two Circuit Court judges assigned to the Drug Court,
the Drug Court Administrator, and Drug Court team members from the Lincoln
County Circuit Clerk, the Drug Court’s counseling service, and Probation and Parole
testified that they did not supervise Edwards, believing the Sheriff’s Department was
his supervisor. Judge Burkemper testified: “If we had issues with any of the team
members, we would try to talk to them first. And if that wasn’t successful, we went
to . . . his or her boss. . . . I’ve never seen the Drug Court team as having any
supervisory authority over . . . any team members.” Edwards testified by deposition
that he worked alone and considered the Drug Court Administrator to be his
supervisor.

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When Krigbaum was elected Lincoln County Sheriff in 2008, the Drug Court
was operating with Edwards serving as tracker. The tracker position was “secondary”
to Edwards’s regular Sheriff’s Department duties; his tracker pay came from a
separate County fund. Circuit Judge Burkemper contacted Krigbaum regarding the
Drug Court and advised him of the MOU. Krigbaum said he would support the Drug
Court by continuing to provide a tracker and his vehicle and to pay his salary.
Krigbaum retained Edwards in the tracker position but thereafter paid no attention to
the Drug Court. He did not attend team meetings with Edwards. He did not monitor
or inquire about Edwards’s performance as tracker. Edwards submitted time sheets
for hours spent working as tracker; Krigbaum approved the time sheets without
attempting to verify the information, which Edwards under-reported. The Sheriff’s
Department policy requiring officers to call in their location and mileage when
transporting a juvenile or member of the opposite sex was not applied to Edwards
when serving as tracker. Krigbaum discussed the Drug Court with County
Commissioners only “when it came to money.” He first saw the Drug Court MOU
and Policies and Procedures Manual at his deposition in this lawsuit.

C. Lincoln County argues the evidence was insufficient to show that the
County is liable for failing to supervise Edwards while he worked as Drug Court
tracker because Sheriff Krigbaum thought the Drug Court supervised Edwards when
serving as tracker, Krigbaum lacked actual knowledge of Edwards’s misconduct, and
no testimony connected the Sheriff’s Department to knowledge of Edwards’s
misdeeds. But this argument fails to take into account the failure-to-supervise
instructions submitted to the jury without objection. For each plaintiff, the jury was
instructed that its verdict will be against Lincoln County if it finds:
First: The Lincoln County Sheriff, as policy maker for Defendant
Lincoln County, was responsible for supervising Scott Edwards as Drug
Court Tracker; and

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Second: Defendant Lincoln County’s supervision of Scott
Edwards as Drug Court Tracker was inadequate; and
Third: The need for supervision by Defendant Lincoln County
was so obvious, and the inadequacy so likely to result in the violation of
[each Plaintiff’s] constitutional rights, that the policy maker for
Defendant Lincoln County can reasonably be said to have been
“deliberately indifferent” to the need for such supervision; and
Fourth: The failure of Defendant Lincoln County to supervise
Scott Edwards as Drug Court Tracker was the cause of the injuries to
[each Plaintiff].

Two aspects of this instruction are of critical importance to this appeal. In the first
instruction, the person identified as Lincoln County policy maker was not Sheriff
Michael Krigbaum; it was “The Lincoln County Sheriff.” Thus, in determining
supervisory responsibilities, the jury was instructed that it could consider, as plaintiffs
argued, that “the Sheriff” signed an MOU agreeing to be a fully participating Drug
Court team member, whether or not Krigbaum ever understood the Sheriff’s Drug
Court responsibilities or even read the MOU. The Third instruction, which exactly
tracked the above-quoted liability standard from Canton as quoted by this court in
Liebe, permitted the jury to find that the need for supervision was “so obvious”
because of danger signals that were apparent to other Drug Court team members but
were never conveyed to Sheriff Krigbaum, who ignored Drug Court activities
altogether. In a “no supervision” case involving a municipal-liability claim against
one agency participant, a novel and potentially critical legal issue is whether a need
for supervision that became obvious to other agencies’ officials can establish the
deliberate indifference of a Lincoln County Sheriff who was unaware of the danger
signals. However, as Lincoln County failed to object to the district court’s verdict
director, the only issue before us is whether the trial evidence permitted a reasonable
jury to find for the plaintiffs on the elements of the claim as instructed.

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D. Turning to the specific sufficiency issues, the County’s principal defense
at trial was that Sheriff Krigbaum was not responsible for supervising Edwards as
Drug Court tracker. But the trial evidence was clearly sufficient to permit a
reasonable jury to find, as they were instructed, that the Lincoln County Sheriff, as a
Lincoln County policy maker, was responsible for supervising Scott Edwards as Drug
Court Tracker. The terms of the MOU, standing alone, support this finding. And the
testimony of Judge Burkemper that the Drug Court considered the agency providing
a particular team member to be that person’s “supervisor” gave the jury a commonsense
basis for resolving an issue that, in hindsight, was left unresolved when the
Drug Court was established, with disastrous results.

One of the two critical fact issues at trial was whether the need to supervise
Edwards as tracker was, in the words of the jury instruction, “so obvious . . . that the
policy maker for Defendant Lincoln County can reasonably be said to have been
‘deliberately indifferent’ to the need for such supervision.” Though this instruction
followed the language of the deliberate indifference test articulated in Canton, it
arguably did not give the jury an accurate sense of how rigorously the standard must
be applied “to ensure that the municipality is not held liable solely for the actions of
its employee.” Brown, 520 U.S. at 405. But as there was no objection to the
instruction, that issue is not before us and we do not consider it.
At trial, plaintiffs contended that specific evidence demonstrated a pattern of
activity by tracker Edwards that made obvious the inadequacy of his supervision “in
relation to the tasks the particular officer[] must perform.” Canton, 489 U.S. at 390.
Some of the evidence related to misconduct by Edwards that should have been
obvious to Sheriff Krigbaum and the Sheriff’s Department jail staff. Edwards visited
K.W., S.M., and L.M. while incarcerated and took them out of jail for smoke breaks
or to a McDonald’s. These were clear violations of jail policies, and Edwards and
plaintiffs walked past jail staff as they exited the prison. S.M. testified that Edwards
used these occasions to initiate sexual contact “in the detective side [of the facility]

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where it would be dark . . . . [T]hat’s where he would grope or touch or do whatever
it was he wanted to do with us.” More generally, Krigbaum testified that there is a
risk of misconduct when law enforcement officers are alone with females, and
Edwards told Krigbaum that he had the authority to report facts as tracker that could
make a participant go to jail.

Much of plaintiffs’ “so obvious” evidence concerned Edwards’s conduct as
tracker that was known to Drug Court team members but not to Sheriff Krigbaum
because he ignored the Sheriff’s role as defined in the Drug Court MOU. For
example, despite the MOU’s explicit reference to “joint” visits, Edwards worked
alone “almost exclusively” when performing tracker duties, including night visits to
female participants’ homes, and Judge Burkemper testified he’d “never known two
people to go out.” There was also evidence that Edwards made derisive sexual
comments at Drug Court team meetings about females under his supervision, underreported
hours and trips in his patrol car to the plaintiffs’ homes, and was widely
perceived as devoting attention to younger women. A male Drug Court participant
testified that it was common knowledge that Edwards spent a disproportionate
amount of time supervising female participants who were “attractive, young, and new
to the Drug Court program and kind of naive.”

Viewed in toto, we conclude that this evidence, while not overwhelming, was
sufficient to permit a reasonable jury to find that (i) it was so obvious to Drug Court
team members that failing to provide any supervision of Edwards as Drug Court
tracker would result in the violation of sexually vulnerable participants’ constitutional
rights as to constitute deliberate indifference to the need for supervision, and (ii) this
deliberate indifference was attributable to the Sheriff of Lincoln County as the Drug
Court team member responsible for supervising tracker Edwards.

Lincoln County further argues the evidence was insufficient to prove the other
essential element of municipal liability -- that a lack of supervision was the “moving

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force” behind Edwards’s constitutional violations. See Parrish v. Ball, 594 F.3d 993,
1000 (8th Cir. 2010) (quotation omitted). As Sheriff Krigbaum acknowledged, there
is always a risk of sexual assaults when male police officers exercise official authority
over females. Edwards’s extensive authority and responsibilities to monitor Drug
Court participants provided an ideal environment for an officer to coerce sexually
vulnerable females into unwanted sexual contact, and the danger signals Edwards’s
conduct provided to jail staff and Drug Court team members made that specific risk
obvious. Compare Harris v. City of Pagedale, 821 F.2d 499, 508 (8th Cir. 1987),
with Andrews v. Fowler, 98 F.3d 1069, 1076 (8th Cir. 1996). Though plaintiffs failed
to identify specific supervisory procedures that should have been instituted, the jury
could reasonably infer that even a modest level of active supervision would have
successfully deterred Edwards’s repeated misuse of his authority for the purpose of
sexual abuse. This is not an “isolated incident” case, even though Edwards was the
only Drug Court tracker. Szabla, 486 F.3d at 393 (quotation omitted). Viewing the
trial evidence as a whole, as we must, a reasonable jury could find that the County’s
inadequate supervision was the moving force that enabled Edwards to sexually
assault the plaintiffs.

II.

Lincoln County argues the district court abused its discretion in denying the
County’s motion for a new trial because the jury awarded substantial compensatory
damages but “no evidence of a financial nature or detailed testimony about the basis
for any such damage award was presented at trial.”

“A compensatory damage award for emotional distress may be based on a
plaintiff’s own testimony. Such an award must be supported by competent evidence
of genuine injury, but medical or other expert evidence is not required.” Bennett v.
Riceland Foods, Inc., 721 F.3d 546, 552 (8th Cir. 2013) (quotation omitted), citing
Kim v. Nash Finch Co., 123 F.3d 1046, 1065 (8th Cir. 1997). Here, plaintiffs

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testified at length about the sexual acts they endured and the impact Edwards’s
actions as tracker had on them, including interfering with their ability to overcome
drug addictions. The evidence included Edwards’s plea agreement, in which he
admits to acts of aggravated sexual abuse, as well as an audio recording of Edwards’s
assault of S.M. in a motel room. “A motion for new trial based on sufficiency of the
evidence should be granted only if the verdict is against the weight of the evidence.”
Bennett, 721 F.3d at 552-53 (quotation omitted). As in Bennett, the district court did
not clearly abuse its discretion in denying a new trial based on the jury’s damage
awards.

Outcome: The judgment of the district court is affirmed.

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