Burton v. St. Louis Board of Police Commissioners

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 12-2524
___________________________

Darryl Burton

lllllllllllllllllllll Plaintiff - Appellant

v.

St. Louis Board of Police Commissioners; Francis G. Slay, in his official capacity
as a member of the St. Louis City Board of Police Commissioners; Michael
Gerdine, in his official capacity asa member of the St. Louis City Board of Police
Commissioners; Bettye Battle-Turner, in her official capacity as a member of the
St. Louis City Board of Police Commissioners; Richard H. Gray, in his official
capacity as a member of the St. Louis City Board of Police Commissioners; Don
Cummings; Christopher Gunter; Stephen Hobbs; Daniel Nichols; Thomas Wilder,
all in their official capacity and their individual capacity

lllllllllllllllllllll Defendants - Appellees
____________

Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________

Submitted: March 12, 2013
Filed: September 24, 2013
____________

Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
____________

SMITH, Circuit Judge.
 Darryl Burton was convicted of the 1984 murder of Donald Ball in St. Louis,
Missouri. Burton served 24 years in prison before a Missouri court found that his trial
had been fundamentally unfair and ordered his release. Burton then filed this action
in the district court1 against the members of the St. Louis Board of Police
Commissioners and several law enforcement personnel (collectively, "defendants"),
asserting that the defendants recklessly or intentionally manipulated evidence and
conducted suggestive identification procedures, in violation of his Sixth Amendment
right to a fair trial, his Fourteenth Amendment right to substantive due process, and
42 U.S.C. § 1983. The complaint also alleged state law claims of malicious
prosecution and infliction of emotional distress. The defendants asserted the defense
of qualified immunity and moved for summary judgment. The district court granted
the defendant's summary judgment motion on the § 1983 claims and dismissed the
remaining state law claims. Finding no genuine issue of material fact with respect to
Burton's § 1983 claims, we now affirm.

I. Background
On June 4, 1984, a gunman shot and killed Ball at an Amoco service station in
St. Louis, Missouri. Detective Donald Cummings interviewed three people at the
scene who allegedly saw the shooter: Carolyn Lindsey, Stacy Lindsey, and Joan
Williams. Officer Thomas Wilder arrived at the scene and interviewed Samuel
Coleman, who did not witness the shooting but was present at the scene when the
shooting took place. The following day, Detective Stephen Hobbs took over the
murder investigation. Detective Hobbs quickly focused on Burton as a suspect. Police
arrested Burton, and the State charged him with murder and armed criminal action. In
March 1985, a jury convicted Burton based, in substantial measure, on eyewitness

1
The Honorable Thomas C. Mummert, III, United States Magistrate Judge for
the Eastern District of Missouri, to whom the case was referred for disposition by
consent of the parties pursuant to 28 U.S.C. § 636 and Eastern District of Missouri
Local Rule 2.08.

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testimony from Claudex Simmons and Eddie Walker, both of whom testified that
Burton was the gunman. The court sentenced Burton to 75 years' imprisonment.

Five months later, Simmons signed an affidavit, in which he stated that he
"submitted perjury testimony to gain immunity, from the . . . murder of one Donald
Ball." He swore that he "made an agreement with one Anthony Gonzalez to testify
against one Darryl Burton-Bey. For exchange of immunity of the homocide [sic]
of/upon one Donald Ball." Simmons claimed that he "didnot [sic] witness [Burton]
murder one Donald Ball." Burton appealed his conviction, and the Missouri Court of
Appeals affirmed. See State v. Burton, 710 S.W.2d 306 (Mo. Ct. App. 1986). Burton
filed for post-conviction relief in the trial court, but the court denied relief. The
Missouri Court of Appeals affirmed the denial on appeal. See Burton v. State, 817
S.W.2d 928 (Mo. Ct. App. 1991).

Walker died in 1996, but Burton's investigators obtained a statement from
Daniel Pennington, one of Walker's friends. "Pennington said he had been drinking
with Walker outside another friend's house near the Amoco station at the time of Ball's
murder." Burton v. Dormire, 295 F.3d 839, 843 (8th Cir. 2002). Pennington signed an
affidavit stating, "If Eddie Walker said that he saw the shooting and could identify the
shooter that night, he was lying. It [wa]s physically impossible for any of us to see the
[Amoco] lot and the area of the shooting from where we were standing." Id. (quotation
omitted) (second alteration in original). Furthermore, "Pennington and other affiants
claimed Walker was a notorious liar. And one woman even asserted [that] Walker had
poor eyesight and never wore his glasses while drinking." Id. Burton then sought
federal habeas relief. The district court denied relief, and Burton appealed to this
court. On review of the district court's denial of Burton's petition, we stated:

Darryl Burton's habeas petition depicts a troubling scenario. One cannot
read the record in this case without developing a nagging suspicion that
the wrong man may have been convicted of capital murder and armed
criminal action in a Missouri courtroom. Burton was convicted on the

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 strength of two eyewitness accounts. Since his trial and imprisonment,
new evidence has come to light that shakes the limbs of the prosecution's
case. One eyewitness has recanted and admitted perjury. The other
eyewitness's veracity has been questioned by a compatriot who avers it
was physically impossible for him to have seen the crime. A layperson
would have little trouble concluding Burton should be permitted to
present his evidence of innocence in some forum. Unfortunately,
Burton's claims and evidence run headlong into the thicket of
impediments erected by courts and by Congress. Burton's legal claims
permit him no relief, even as the facts suggest he may well be innocent.
Mindful of our obligation to apply the law, but with no small degree of
reluctance, we deny Burton a writ.

Id. at 842.

Next, Burton filed a state habeas petition. The Missouri trial court found that
Burton's trial had been fundamentally unfair and ordered Burton's release from prison.
See Burton v. Dormire, No. 06AC-CC00312 (Mo. Cir. Ct. Aug. 18, 2008). After 24
years of incarceration, Burton was released.

Burton then filed this action in the district court against the defendants,
including Detective Hobbs, Detective Cummings, Officer Wilder, Detective Daniel
Nichols, and Officer Christopher Gunter. Burton's first amended complaint asserted
that the defendants withheld exculpatory material, conducted suggestive identification
procedures, and fabricated evidence, in violation of his Sixth Amendment right to a
fair trial and 42 U.S.C. § 1983. The complaint also alleged state law claims of
malicious prosecution and infliction of emotional distress. The defendants asserted the
defense of qualified immunity and moved for summary judgment. The district court
granted summary judgment to the defendants on the § 1983 claims, stating:

Evidence discovered subsequent to Plaintiff's trial for the murder of
Donald Ball suggests that he has served a long incarceration for a crime
he did not commit. However unjust this is [it] is not for this Court to

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 redress in the absence of a violation of his constitution[al] right to a fair
trial by the named Defendants. See Baker [v. McCollan], 443 U.S. [137,]
145 [(1979)] ("The Constitution does not guarantee that only the guilty
will be arrested. If it did, § 1983 would provide a cause of action for
every defendant acquitted—indeed, for every suspect released."). "'Due
process does not require that every conceivable step be taken, at
whatever cost, to eliminate the possibility of convicting an innocent
person.'" Id. (quoting Patterson v. New York, 432 U.S. 197, 208 (1977)).

Burton v. St. Louis Bd. of Police Comm'rs, No. 4:1-CV1540 TCM, 2012 WL 1933761,
at *23 (E.D. Mo. May 29, 2012). The district court dismissed the remaining state law
claims without prejudice.2

II. Discussion
On appeal, Burton argues that the district court erred in granting summary
judgment to the defendants. Burton contends that the court improperly rejected his
evidence and credited the defendants' denials that they did not manipulate the
evidence, conduct suggestive identification procedures, or conspire to deprive him of
a fair trial. Burton argues that he "provided considerable evidence indicating that
Hobbs, working with Nichols, Cummings, and Wilder, framed Mr. Burton for a crime
he did not commit."

"Summary judgment is appropriate when the evidence viewed in the
light most favorable to the nonmoving party presents no genuine issue
of material fact and the moving party is entitled to judgment as a matter
of law. We review de novo summary judgment where granted on the
basis of qualified immunity." Coates v. Powell, 639 F.3d 471, 475–76
(8th Cir.) (internal citation omitted), cert. denied, ___ U.S. ___, 132

2
Burton's brief offers no independent argument that the district court erred in
dismissing the state law claims. "Claims not argued in the briefs are deemed
abandoned on appeal." Etheridge v. United States, 241 F.3d 619, 622 (8th Cir. 2001)
(citing Jasperson v. Purolator Courier Corp., 765 F.2d 736, 740–41 (8th Cir. 1985)).

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 S. Ct. 412, 181 L. Ed. 2d 269 (2011). "The party asserting immunity
always has the burden to establish the relevant predicate facts, and at the
summary judgment stage, the nonmoving party is given the benefit of all
reasonable inferences." White v. McKinley, 519 F.3d 806, 813 (8th Cir.
2008).

"Qualified immunity shields government officials from [personal]
liability in a § 1983 action unless the official's conduct violates a clearly
established constitutional or statutory right of which a reasonable person
would have known." Brown v. City of Golden Valley, 574 F.3d 491, 495
(8th Cir. 2009). Evaluating a claim of qualified immunity requires a
"two-step inquiry: (1) whether the facts shown by the plaintiff make out
a violation of a constitutional or statutory right, and (2) whether that
right was clearly established at the time of the defendant's alleged
misconduct." Id. at 496 (citing Saucier v. Katz, 533 U.S. 194, 201, 121
S. Ct. 2151, 150 L. Ed. 2d 272 (2001)). "The defendants are entitled to
qualified immunity unless the answer to both of these questions is yes."
McCaster v. Clausen, 684 F.3d 740, 746 (8th Cir. 2012). A court may
exercise its discretion in deciding which of the two prongs of the
qualified immunity analysis to take up first. Pearson v. Callahan, 555
U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009).

Winslow v. Smith, 696 F.3d 716, 730–31 (8th Cir. 2012) (alteration in original). "'The
party asserting immunity always has the burden to establish the relevant predicate
facts, and at the summary judgment stage, the nonmoving party is given the benefit
of all reasonable inferences.'" Id. at 730 (quoting White, 519 F.3d at 813).

A. Manipulation-of-Evidence Claims
Burton argues that the defendants recklessly or intentionally manipulated
exculpatory evidence, in violation of his Sixth Amendment right to a fair trial, his
Fourteenth Amendment right to substantive due process, and 42 U.S.C. § 1983.
Specifically, Burton contends that the defendants withheld the statements of witnesses
Coleman and Williams that Burton was not the shooter by failing to include them in
the police report. Furthermore, he contends that the defendants recklessly or

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intentionally manipulated the testimony of key witnesses Walker and Simmons and
withheld evidence of that manipulation. Finally, Burton argues that Detective Hobbs
acted in bad faith by exclusively pursuing him as a suspect. "The general test of
whether executive action denying a liberty interest is egregious enough to violate due
process is whether it shocks the conscience." Briscoe v. Cnty. of St. Louis, Mo., 690
F.3d 1004, 1011 (8th Cir. 2012) (quoting Wilson v. Lawrence Cnty., 260 F.3d 946,
956 (8th Cir. 2001)).

[A]n investigating officer's failure to preserve evidence potentially useful
to the accused or their failure to disclose such evidence does not
constitute a denial of due process in the absence of bad faith. Villasana
v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004). "[T]he recovery of § 1983
damages requires proof that a law enforcement officer other than the
prosecutor intended to deprive the defendant of a fair trial." Id.
Consequently, to be viable, [the defendant's] claim must allege bad faith
to implicate a clearly established right under Brady.

White, 519 F.3d at 814 (second alteration in original).

Burton first argues that the defendants withheld exculpatory evidence provided
by Coleman. Coleman was at the scene during the shooting, but he did not witness it.
During Burton's state habeas proceeding, Coleman testified that, as he was getting into
his car to leave, he saw a man with a "medium complexion" walk past him just before
the shooting—and that man was not Burton. Additionally, Coleman testified in
response to questioning as follows:

Q. Did you hear the gunshots as you turned your key in the ignition?

A. Yes,[] ma'am.

Q. And when you heard those shots, what did you do at that moment?

A. Put the car in drive and ducked down and pulled off.

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 Q. Did you look around you?

A. No, I wasn't even trying. I was trying to get off the lot.

***

Q. As you were driving off, did you turn around and look at the lot
or look in your rearview mirror?

A. No, ma'am.

Q. Did you look in your rearview mirror?

A. I didn't look in no mirror. I almost took a car off trying to get
around the corner.

***

Q. When you say you ducked as you drove out, were you still able to
see out the windshield?

A. No, ma'am. I ducked down, like this and just tried to get off the
lot.

Burton contends that, on the night of the shooting, Coleman told Officer Wilder that
the man who walked past him immediately before the shooting was not Burton.
Nevertheless, he argues, the defendants did not include Coleman's statement in the
police report. Addressing the omission of Coleman's statement to police, the district
court found:

At best, Plaintiff has raised a genuine issue whether Coleman told Wilder
or another individual officer Defendant that the man he saw walk past
him at the gas station was not Plaintiff. The question, however, was
whether Coleman told an officer that the shooter was not Plaintiff. He

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 testified he did not see the shooter; indeed, he testified that he ducked
down and drove off after hearing shots and never looked back.

Burton, 2012 WL 1933761, at *20 (emphases added). Coleman told Officer Wilder
that the man he saw was not Burton, but he also said that he did not see who did the
shooting. Thus, Coleman did not know if the man he saw was the shooter, and, hence,
he was not able to say that Burton was not the shooter. As such, Coleman's statement
is not material to the issue of Burton's guilt or innocence, and it does not support
Burton's Brady claims here. See United States v. Tate, 633 F.3d 624, 630–31 (8th Cir.
2011) ("To establish a Brady violation, a defendant is required to show that . . . the
[suppressed] evidence was material" "either to guilt or to punishment."). Coleman's
statement becomes material to the issue of Burton's guilt or innocence only if one
assumes that the man that Coleman saw was the shooter. The police report did not
make this assumption, but simply stated that Coleman "is unaware of who may have
shot the victim." At most, a different report could have stated that Coleman saw
someone other than Burton who might have been the shooter. To conclude that Officer
Wilder or Detective Hobbs purposefully withheld Coleman's statement that the man
he saw was not Burton would "require[] us to draw inference upon inference in order
to conclude there might be a material fact issue lurking somewhere. We decline to do
so, as did the District Court." See ACT, Inc. v. Sylvan Learning Sys., Inc., 296 F.3d
657, 667 (8th Cir. 2002).

Second, Burton argues that the defendants withheld evidence provided by
another eyewitness, Williams, whom he claims gave Detective Cummings a statement
that the shooter was "an African/American . . . with . . . light skin." Burton argues that
this statement was exculpatory because he is dark-complected. In May 2004, Williams
signed an affidavit that states:

8. Even though I did not get a close look at the shooter's face, I did
clearly see his complexion. At some point, I remember telling the police
that the man they had charged with the murder was the wrong man,

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 because the man they charged had a darker complexion than the man I
saw do the shooting. When I told the police they had charged the wrong
man, no one said a word.

9. When I testified at a trial several months after the shooting, I
looked at the defendant. I knew he was darker than the man I saw do the
shooting. But I was not asked during my testimony if the man in the
courtroom was the assailant. Also, I figured the police must know what
they were doing and I let it go at that.

10. During my testimony, I was asked about the shooter's general
description but I was not asked about the shade of his complexion. I
knew that the man in the courtroom was not the man I saw doing the
shooting on the Amoco lot because he was darker than the shooter. I was
afraid, however, to say the defendant was the wrong man because I was
never asked a direct question about that.

Williams also testified during Burton's state habeas proceeding as follows:

[THE WITNESS:] I saw his face just a hot second because he was
nice looking, a real nice looking guy and light skinned and had a low
haircut.

THE COURT: And you gave that description to the police?

THE WITNESS: Yes, I did, sir.

THE COURT: And you believed he was an African/American?

THE WITNESS: Oh, yes. He was an African/American, but with
just light skin.

The district court found that "Plaintiff's position that [Williams] did tell police and did
tell [Detective] Cummings at the scene [that the shooter was light-skinned] is
speculation unsupported by the record." Burton, 2012 WL 1933761, at *19. The court

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noted that "Williams did not describe the shooter as light-complected when testifying
at Plaintiff's criminal trial, even when responding to the question whether the
description she had given was complete." Id. Even if Williams did tell police at the
scene that the shooter was "an African/American . . . with . . . light skin," and the
statement had been in the police report, the statement would have been included along
with eyewitness Stacy Lindsey's description of the shooter as having "medium skin"
color. It is not reasonable to infer an intent to frame Burton from the simultaneous
(1) inclusion of Stacy Lindsey's description and (2) non-inclusion of Williams's
description in the police report. We also note that Williams's statement that police had
the "wrong man, because the man they charged had a darker complexion than the man
[she] saw," could not have been withheld by the defendants because Williams did not
make that statement until the day she was called to testify as a witness in Burton's
trial.

Next, Burton argues that the defendants manipulated key witnesses and
withheld evidence of that manipulation. First, he contends that Detective Hobbs
manipulated Walker's testimony. Burton relies on an affidavit of Jim McCloskey,3
signed in October 2011, which relates McCloskey's description of an interview he
conducted with Detective Hobbs over ten years earlier, in February 2001.
McCloskey's affidavit states that Detective Hobbs

3
As the district court noted,

McCloskey describes himself as the founder and executive
director of Centurion Ministries. Centurion Ministries is described on its
website as an organization whose "mission is to free from prison those
innocent individuals who had absolutely nothing whatsoever to do with
the crimes for which they were convicted and sentenced to either life or
death."

Burton, 2012 WL 1933761, at *8 n.15 (citations omitted).

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 remembered that Darryl Burton's name came up right away as a suspect.
Lt. Hobbs remembered shortly after the murder, perhaps the very next
day, he was canvassing the neighborhood during the day and he came
upon a house . . . . Sitting on the front porch were three or four winos; Lt.
Hobbs asked them if they knew [Burton].

McCloskey's affidavit avers that Detective Hobbs stated that "he and his partner gave
out their cards. One came to them later and said that he knew who was the killer. Lt.
Hobbs didn't remember the name 'Eddie Walker,' but remembered that an important
witness against Darryl Burton was one of the winos." The police report does not
mention any encounter with the so-called winos or that Walker was among them.
Rather, the report describes Sergeant Herbert Riley's conversation with Walker on the
street at 12:30 p.m. on June 6. According to the report, Walker told Sergeant Riley
that he saw Burton shoot Ball. Sergeant Riley then called Detective Hobbs, who
showed Walker a photo array. The report states that Walker identified Burton's photo
as the picture of the shooter and that Walker said that he had known Burton for ten
years. Burton argues that McCloskey's affidavit shows that Detective Hobbs fed
Burton's identity to Walker during the encounter with the winos, thereby knowingly
causing Walker to subsequently identify Burton as the shooter.

Burton's argument rests on McCloskey's 2011 affidavit. The document contains
McCloskey's recollection of statements Detective Hobbs made to him over ten years
earlier about events that occurred another seventeen years before that. Notably,
Detective Hobbs's hearsay statements do not identify Walker as the "important
witness." The only statements in the affidavit that identify Walker as the witness are
McCloskey's own editorial comments. McCloskey's affidavit simply does not create
an issue of material fact regarding whether the defendants manipulated Walker's
testimony. The district court found that Detective "Hobbs was told by Walker that he
could identify who shot Ball; Walker then identified Plaintiff as the shooter. There is
no evidence that Hobbs knew this testimony to be false." Burton, 2012 WL 1933761,
at *22. We agree.

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 Burton also argues that Detective Hobbs manipulated Simmons's testimony to
implicate Burton and then concealed that manipulation from the prosecution. Burton
contends that Simmons was near the scene of the crime at the time of the shooting and
initially denied seeing Burton there. Despite Simmons's initial denial, according to
Burton, Detective Hobbs coached Simmons to change his story and identify Burton
as the shooter after Detective Anthony Rice arrested Simmons for attempted second-
degree robbery on June 11. According to the police report, on June 7, Simmons

stated that he was coming out of the liquor store next to the Amoco
Station . . . and heard three shots. At that time, he ran across [the street]
to the bus stop. After the shooting was over, he went to the Amoco
Station to look at the victim, to see if he knew the victim. . . .

[Simmons] stated that he did not see the wanted subject . . . .

However, the police report further states:

Continuing the investigation, on Monday, June 11, 1984, Detectives
Hobbs and Daniel Nichols, dsn-0014, were contacted by Det. Anthony
Rice, dsn-6790, assigned to the Fourth District Detective Bureau. Det.
Rice stated that he had arrested a subject who stated that he had
witnessed the murder and wanted to talk to Homicide detectives.

At that time Simmons gave a different account:

[Simmons] stated that earlier he had told Det. Hobbs that he heard the
shots, but did not see anything. He added that he was very scared and did
not want to get involved.

He stated that he was in the liquor store, and as he was leaving, he heard
three shots coming from the service station lot. As he looked, he saw the
victim running with the wanted subject chasing him. Simmons added that
the victim fell and the wanted subject stood over him and was holding a

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 handgun in his right hand, which he put in his right front shirt pocket. At
that time, the wanted subject ran to the northwest corner of the lot, and
out of sight. Simmons then ran south across [the street] to the bus stop.
A few minutes later, Simmons returned to the lot to see if he knew the
victim. . . .

Simmons stated that the wanted subject had his hair in "corn rolls," and
was wearing blue jeans and an unknown color shirt that had pockets on
the sides.

Simmons stated that he did not know the wanted subject, but if he saw
a photo, he might be able to identify him.

At that time, Simmons was shown four LB photographs . . . . Simmons
positively identified [Burton] as the subject he saw standing over the
victim, placing the handgun into his right shirt pocket, who had been
chasing the victim on the lot.

Five months after Burton's conviction, Simmons signed an affidavit in which he stated
that he "submitted perjury testimony to gain immunity, from the . . . murder of one
Donald Ball." He swore that he "made an agreement with one Anthony Gonzalez to
testify against one Darryl Burton-Bey. For exchange of immunity of the homocide
[sic] of/upon one Donald Ball." Simmons claimed that he "did not witness [Burton]
murder one Donald Ball." His affidavit makes no allegation that his testimony against
Burton was coerced. Nevertheless, Simmons subsequently testified during the state
habeas proceeding that "[he] was coerced by the prosecuting attorney and the arresting
officer." He testified that "[t]he prosecuting attorney[,] I think his name is Kowosky
(phonetic sp)" was "telling [him] what to say."

Burton argues that Simmons's reference to "the arresting officer" who "coerced"
him is a reference to Detective Hobbs. But drawing that conclusion requires inferring
both (1) that Simmons was referring to Burton's "prosecuting attorney and
. . . arresting officer" (as opposed to his own) and (2) that Simmons understood

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Detective Hobbs to be Burton's arresting officer. But these two inferences are neither
reasonable nor consistent with the record. As the district court noted, "Simmons did
not identify [Detective Hobbs as] the arresting officer, nor is there any evidence that
[Simmons] was present when [Burton] was arrested or even knew who had arrested
[Burton]." Burton, 2012 WL 1933761, at *8. Moreover, the police report indicates that
Simmons changed his story before speaking to Detective Hobbs on June 11. That
report—the only evidence in the record on this point—states that Simmons told
Detective Rice "that he had witnessed [Ball's] murder and wanted to talk to Homicide
detectives." Burton has not shown a genuine issue of material fact that Detective
Hobbs intentionally manipulated Simmons's testimony.

Finally, Burton argues that Detective Hobbs acted in bad faith in pursuing him
as a suspect. He maintains that Detective Hobbs knew him as a teenager and viewed
him negatively. He argues that Detective Hobbs investigated him exclusively, even
though another man, Jesse Watson, was the more likely suspect. But even if Detective
Hobbs failed to follow through on investigating other possible leads after identifying
Burton as a suspect, Burton produces no evidence showing that Detective Hobbs
purposefully ignored contrary evidence, recklessly or intentionally withheld evidence,
or faced pressure to unduly strengthen the case against Burton. We agree with the
district court that Detective Hobbs's investigation was, on this evidence, at most,
negligent. See Burton, 2012 WL 1933761, at *18. As such, Burton has not shown that
a genuine issue of material fact remains that Detective Hobbs's investigation violated
his Sixth Amendment right to a fair trial or his Fourteenth Amendment right to
substantive due process. See Akins v. Epperly, 588 F.3d 1178 (8th Cir. 2009) (finding
no § 1983 violation where the evidence failed to establish that officers either
purposefully ignored evidence supporting the arrestee's innocence, intended to
misconstrue evidence, or were pressured to improperly strengthen the state's case
against the arrestee); Amrine v. Brooks, 522 F.3d 823, 835 (8th Cir. 2008) (affirming
summary judgment where, although the officers failed to follow through on
investigating other leads, the evidence did not establish that officers either attempted

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to coerce the arrestee, purposely ignored contrary evidence, or faced undue pressure
to implicate arrestee).

Consequently, the district court did not err in granting summary judgment on
Burton's claims that the defendants manipulated the investigation or evidence against
him or deprived him of a fair trial, in violation of his constitutional rights.

B. Suggestive-Identification-Procedure Claims
Burton argues that the defendants violated his Sixth Amendment right to a fair
trial and his Fourteenth Amendment right to substantive due process by employing
impermissibly suggestive and unreliable identification procedures with witnesses
Walker and Simmons. He argues that the individuals depicted in photo arrays
presented to Walker and Simmons did not have similar physical characteristics and
that Detective Hobbs failed to advise the witnesses that the perpetrator may or may
not be represented among the photos shown.

"In the context of unduly suggestive lineups, only a violation of
the core right—the right to a fair trial—is actionable under § 1983." Pace
v. City of Des Moines, 201 F.3d 1050, 1055 (8th Cir. 2000). An
identification procedure violates that core right if it is "both
impermissibly suggestive and unreliable." United States v. Martinez, 462
F.3d 903, 911 (8th Cir. 2006), quoting United States v. King, 148 F.3d
968, 970 (8th Cir. 1998). "An identification is unreliable if its
circumstances create a very substantial likelihood of irreparable
misidentification." King, 148 F.3d at 970. In determining reliability,
courts examine the totality of the circumstances including "the
opportunity of the witness to view the criminal at the time of the crime,
the witness' degree of attention, the accuracy of his prior description of
the criminal, the level of certainty demonstrated at the confrontation, and
the time between the crime and the confrontation." Manson v.
Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

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Briscoe, 690 F.3d at 1012. The evidence at trial established that Walker and Simmons
picked Burton out from separate photograph arrays.4 The photograph array that
Detective Hobbs presented to Walker is not in the record on this appeal, but it
included from six to eight5 photos. See, e.g., United States v. Granados, 596 F.3d 970,
975 (8th Cir. 2010) (holding a six-photo array to be not impermissibly suggestive);
Schawitsch v. Burt, 491 F.3d 798, 803 (8th Cir. 2007) (same). Walker told police prior
to viewing the photos that he had witnessed Burton shooting Ball. He stated that he
was present on the Amoco station lot when the shooting took place. Walker's
statement was detailed, indicating a high degree of attention, and his identification of
Burton as the shooter was further supported by his statement that he had known
Burton for the last ten years. Walker's identification of Burton from the photo array
occurred two days after the shooting. Burton has not adduced evidence to show that
this identification procedure was impermissibly suggestive. Moreover, the evidence
indicates that the "'circumstances [of Walker's photo identification procedure did not]
create a very substantial likelihood of irreparable misidentification.'" Briscoe, 690
F.3d at 1012 (quoting King, 148 F.3d at 970).

Seven days after the shooting, Detective Hobbs presented Simmons with a four-
photo array. Simmons's photo array is in the record. It includes portrait- and profile-
shots of four young black males of roughly similar build and skin complexion. The
individuals depicted differ primarily in hair style and facial hair. "Reasonable
variations in hair length and facial hair are not impermissibly suggestive, especially
as they can vary on any given person at different times." Schawitsch, 491 F.3d at 803.
"'When there are no differences in appearance tending to isolate the accused's

4
We note that the judge in Burton's criminal trial admitted both photo arrays
into evidence over his objection.
5
The police report and Detective Hobbs's trial testimony indicate that he used
an eight-photograph array with Walker. Nevertheless, Walker testified that he thought
"[i]t was about—I think about six of them, I guess."

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photograph, the identification procedure is not unnecessarily suggestive.'" Id. at 802
(quoting United States v. Mays, 822 F.2d 793, 798 (8th Cir. 1987)) (citing United
States v. Wilson, 787 F.2d 375, 385 (8th Cir. 1986) (photo spread not unnecessarily
suggestive where suspect was the only Hispanic included in the display)). Even
assuming, without deciding, that Simmons's photo identification procedure was
impermissibly suggestive, we hold that the "'circumstances [of that procedure did not]
create a very substantial likelihood of irreparable misidentification.'" Briscoe, 690
F.3d at 1012 (quoting King, 148 F.3d at 970). The evidence established that on June
11, Simmons changed his story after Detective Rice arrested him for attempted
second-degree robbery. Simmons then claimed that he did see the shooting but was
afraid to get involved. Simmons was in custody when he identified Burton from the
photo array, and he later claimed that "[he] was coerced by . . . the arresting officer"
into implicating Burton. But, as discussed above, viewing Simmons's statement in the
light most favorable to Burton's claim, it is not reasonable to infer that Simmons
meant that Detective Hobbs coerced him, or even that he was coerced with respect to
the identification procedure.6 The record reflects that on June 11 Simmons initiated
contact with Detective Hobbs, "want[ing] to talk to Homicide detectives" who were
investigating Burton's shooting. Simmons told Detective Hobbs that he might be able
to identify the shooter if he saw a picture of him, then he selected Burton from the
four-photo array. We agree with the district court that "there is no evidence that
. . . Simmons was encouraged to select [Burton] in the photographic array[] . . . as the
shooter." Burton, 2012 WL 1933761, at *20.

6
Simmons never claimed that he was coerced into selecting Burton's photo from
a photo array. Rather, his testimony during the state habeas proceeding was that "[he]
was coerced by the prosecuting attorney and the arresting officer." He testified that
"[t]he prosecuting attorney[,] I think his name is Kowosky (phonetic sp)" was "telling
[him] what to say."

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 C. Conspiracy Claim
Burton argues that he has presented ample evidence from which a jury could
find that the defendants conspired to deprive him of his constitutional rights.

To prove a 42 U.S.C. § 1983 conspiracy claim, a plaintiff must show:
(1) that the defendant conspired with others to deprive him of
constitutional rights; (2) that at least one of the alleged co-conspirators
engaged in an overt act in furtherance of the conspiracy; and (3) that the
overt act injured the plaintiff. Askew v. Millerd, 191 F.3d 953, 957 (8th
Cir. 1999). The plaintiff is additionally required to prove a deprivation
of a constitutional right or privilege in order to prevail on a § 1983 civil
conspiracy claim. Id.

White, 519 F.3d at 814.

For a claim of conspiracy under Section 1983, the plaintiff need
not show that each participant knew "the exact limits of the illegal plan
. . . ," but the plaintiff must show evidence sufficient to support the
conclusion that the defendants reached an agreement to deprive the
plaintiff of constitutionally guaranteed rights. Larson by Larson v.
Miller, 76 F.3d 1446, 1458 (8th Cir. 1996). "The question of the
existence of a conspiracy to deprive the plaintiffs of their constitutional
rights should not be taken from the jury if there is a possibility the jury
could infer from the circumstances a 'meeting of the minds' or
understanding among the conspirators to achieve the conspiracy's aims."
Id. Because "the elements of a conspiracy are rarely established through
means other than circumstantial evidence, and summary judgment is
only warranted when the evidence is so one-sided as to leave no room
for any reasonable difference of opinion as to how the case should be
decided. The court must be convinced that the evidence presented is
insufficient to support any reasonable inference of a conspiracy."
Westborough Mall, Inc. v. City of Cape Girardeau, 693 F.2d 733, 743
(8th Cir. 1982).

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Id. at 816 (alteration in original).

Viewing the evidence in the light most favorable to Burton's claim, we find no
evidence to support a reasonable inference that any of the defendants conspired to
frame Burton for Ball's murder or otherwise to deprive him of his constitutional rights.
Again, we agree with the district court's finding:

At best, [Burton] has established that, based on information
learned during the investigation into Ball's murder, the officer
Defendants mistakenly believed [Burton] to be the murderer. [Burton]
has failed, however, to establish a genuine issue of material fact whether
he was deprived of a fair trial; consequently, his conspiracy claims fail.

Burton, 2012 WL 1933761, at *22.

D. Monell Claims Against the Board
Burton's first amended complaint asserted that the individual defendants'
conduct "resulted from certain improper customs and policies of the St. Louis Board
of Police Commissioners." But "[i]n order for municipal liability to attach, individual
liability must first be found on an underlying substantive claim." Cooper v. Martin,
634 F.3d 477, 481–82 (8th Cir. 2011) (quotation and citation omitted). Here, none of
the individual defendants are liable on Burton's § 1983 claims, so Burton's claims
against the St. Louis Board of Police Commissioners necessarily fail.

III. Conclusion
Because we find that Burton has shown no genuine issue of material fact with
respect to his § 1983 claims, we affirm the judgment of the district court.
______________________________

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