ST. LOUIS  —  A federal judge has dismissed Gerald’s police department from one civil rights lawsuit but the city, its aldermen, mayor, and three former police officers remain defendants in their individual capacities. Bill A. Jakob, who pled guilty in September to 23 felony counts of a federal grand jury indictment, including impersonation of federal purchasing agents and drug enforcement officials, also remains as a defendant.

U.S. District Judge Catherine D. Perry issued an Nov. 4 “memorandum and order” noting the police department, “as the department is not a suable entity under law.” Her ruling directly addresses a civil rights lawsuit filed, initially on behalf of 11 Gerald area residents, by Union attorney Daniel J. Briegel. As of Tuesday, Briegel’s list of clients identified as plaintiffs has increased to 19. Another separate lawsuit, filed by St. Louis attorney Bob Herman, includes his original six clients. It is not affect by Perry’s ruling.

Perry’s order describes the case as a “1983 civil rights case” where plaintiffs allege the Gerald police   and Jakob “violated the rights of plaintiffs by arresting them without cause and without a warrant.”

The city, Mayor Otis Schulte, and Board of Aldermen sought to have it dismissed “for failure to state a claim,” wrote Perry. “I will grant the defendants’ motion with respect to the claims brought against the Gerald Police Department, as the department is not a suable entity under Missouri law.

“Defendants’ motion will be denied in all other respects.”

Perry offered background noting allegations “that defendant William Jacob (sic) posed as a federal agent and invited himself to join the City of Gerald Police Department.”

Jakob’s name is misspelled as “Jacob” in each use in Perry’s ruling.

As The Republican reported on May 14, Perry order notes Briegel’s clients allege the city and its police force “did not question Jacob (sic) or make an effort to confirm his background, and allowed Jacob (sic) to accompany police officers on calls and to make arrests. Jacob (sic), under color of law and with the cooperation of the Gerald Police Department, proceeded to unlawfully arrest numerous individuals without cause.

Jacob (sic) and the Gerald police conducted warrantless searches of private residences, seized personal property, assaulted and battered individuals in their homes, and wrongfully detained individuals without cause and without a warrant. In all, nineteen plaintiffs have brought suit alleging tort claims and violation of their constitutional rights.”

Herman, asked Tuesday how Jakob’s guilty plea in federal court in September might affect the case his clients have brought separately said, “In an indirect fashion it will be helpful.”

“The allegations contained in the complaint are very serious,” continued Perry. “I have concerns, however, about how the case has been managed.”

She noted Briegel filed the “initial complaint on May 16, 2008, and filed an amended complaint on June 9, 2008.” Counsel for the city moved to dismiss various parts of the amended complaint following a court appearance on July 28.

Briegel “failed to file a timely response to defendants’ motion to dismiss, and on September 5, 2008 I ordered plaintiffs to show cause why defendants’ motion should not be granted,” Perry noted. “Plaintiffs’ response apparently concedes a number of the arguments raised by the defendants.”

Among those, she noted in a footnote: “Plaintiffs merely state that they ‘offer no argument in response’ to certain points raised by the defendants. At oral argument I asked plaintiffs’ counsel whether this meant that he was agreeing with the defendants as to those arguments. Plaintiffs’ counsel clarified that he was not conceding these points, but rather simply leaving it for me to decide whether defendants’ arguments had merit.

Perry noted that “in addition to filing a response to the motion to dismiss, plaintiffs also filed (without the required leave of court) a new second amended complaint.”

This second amended complaint adds new plaintiffs and raises new allegations of police misconduct, Perry noted. Some plaintiffs in the second amended complaint appear in the caption of the pleading and nowhere else. “There are six plaintiffs who raise no specific allegations of any kind, and it is impossible to determine from the complaint how these plaintiffs are related to the case,” she wrote.

Added to the list of 11 original plaintiffs in the suit filed by Briegel were Justin Sanchez, Cameron Hedrick, Michael Epple, Jonathan Wright, Marie Wright, Thomas Wright, Peggy Baltimore, and Paul Baltimore.

Originally listed as plaintiffs were Steven Kern, Cheryl Christman,  Calvin Christman, Betty Jo Jarvis, Andrew Elliot, Lucas Hedrick, Nichole Krueger, Joseph Rabbit, Rebecca Fieser, Christine Corbitt, and Anthony Davis.

Calvin Christman’s name was inadvertently omitted from a May 21 story about the filing of the suit.

“Lastly,” noted Perry, “plaintiffs’ counsel still has yet to serve the remaining defendants.

“The 120 day window for serving these defendants has long expired. During oral argument on Sept. 30, 2008, I gave plaintiffs until Oct. 30, 2008 to serve the remaining defendants. Plaintiffs’ counsel has not filed anything since the oral argument indicating that service has been achieved. Some of these defendants, including William Jacob (sic) and Police Chief Ryan McCrary, have given numerous interviews to the news media (including an appearance Nov. 2 on 60 Minutes), and certainly do not appear to be in hiding. Defendant Jacob (sic) has made court appearances to plead guilty to charges relating to this incident, and so surely could have been found for service of the complaint. In the absence of service, however, I must dismiss the complaint against these defendants. I will give plaintiffs’ counsel fourteen days to show cause why I should not do so.”

That deadline is next Tuesday (Nov. 18).

Briegel, however, told The Republican on Tuesday that these issues will be resolved. Asked why Jakob and McCrary have not been served with subpoenas, he replied: “It’s not a subpoena, it’s a summons. They have been. Well, not served, they don’t need to be served.

“There have been no developments since the amended complaint was filed. The next court date will be the Rule 16 hearing. That is to set the time frames for the case.”

Perry continues with an analysis of her Nov. 4 order noting: “A de-fendant may move to dismiss a claim ‘for failure to state a claim upon which relief can be granted’” she wrote citing federal law.

(For a complete transcript of the ruling, which includes four footnotes and case law notations, see The Republican’s web site at: GasconadeCountyRepublican.com)

Perry explained a motion to dismiss is designed to “test the legal sufficiency of the complaint…”

To avoid dismissal, she requested “a short and plain statement of the claim showing that the pleader is entitled to relief. Although specific facts are not necessary, the plaintiff must allege facts sufficient to give fair notice of what the claim is and the grounds upon which it rests.”

She added:  “A complaint should not be dismissed merely because the court doubts that a plaintiff will be able to prove all the necessary allegations. The issue is not whether the plaintiff will ultimately prevail but whether he is entitled to present evidence to support his claims.”
Continuing, she wrote: “The Eighth Circuit has previously determined that police departments are not suable entities, but instead are merely divisions of city government,” and, so, “A local government entity that lacks the capacity to be sued under the applicable state law may not be sued in federal court.”

And, in granting the motion to dismiss the police department as an agency, she wrote: “The Missouri Supreme Court held long ago that departments of a municipality cannot be sued unless statutory authorization to sue and be sued has been given to the departments…and this is for the reason that if liability exists, the city itself is the party liable, and not the particular department the conduct of which gave rise to the cause of action.”

Questions on applicable constitutional amendments as they apply to the lawsuit were also addressed in Perry’s order.

Perry denied a motion to dismiss claims by the plaintiffs that their civil rights were violated under the Fourth, Sixth, and Eighth Amendments.  While she noted that although the Eighth Amendment pertains to “convicted prisoners” — and none of the plaintiffs was convicted — their allegations of violations of Fourteenth Amendments were valid and was reason enough to deny the motion to dismiss.

“All of plaintiffs’ constitutional claims arise under the Fourteenth Amendment to the Constitution,” she wrote. “The Fourteenth Amendment embraces ‘those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.’”

The city’s counsel also sought to have the city dismissed entirely from the suit in Counts 2 through 15 “because the city is entitled to sovereign immunity,” Perry noted.  “Under state law, Missouri municipalities possess limited sovereign immunity for any claim relating to governmental functions. A municipality waives sovereign immunity, however, to the extent that it purchases liability insurance to protect against tort claims brought by plaintiffs.”

In an interesting notation, Perry wrote: “Under Mo. Rev. Stat. 71.185(1): Any municipality engaged in the exercise of governmental functions may carry liability insurance…to insure such municipality and their employees against claims or causes of action for…personal injuries, and shall be liable…to the extent of the insurance so carried.”

She continued noting Briegel’s second amended complaint, filed after the motion to dismiss was filed, including information about the city’s liability coverage.

“The City has not presented any statement to the contrary,” Perry wrote. “The City’s motion to dismiss on the grounds of sovereign immunity will therefore be denied.”

The city also sought to have Schulte and members of the Board of Aldermen as individuals and as a governing board dismissed from the suit’s Count 2 based on standing of  “official immunity and the public duty doctrine,” Perry noted.

“Official immunity is a judicially-created doctrine that ‘protects public employees from liability for acts of negligence committed during the course of their official duties for the performance of discretionary acts,’” she noted citing case law. “Even a discretionary act, however, will not be protected by official immunity if the conduct is wilfully wrong or done with malice or corruption.”

“The public duty doctrine, in contrast, holds that ‘a public employee is not liable to an individual for injuries resulting from a breach of duty the employee owes to the general public,” the judge wrote. “The doctrine is not a form of immunity at all, but rather ‘negates the duty element required to prove negligence, such that there can be no cause of action for injuries sustained as the result of an alleged breach of public duty to the community as a whole. The doctrine will not apply where defendant public employees act ‘in bad faith or with malice.’”

She continued, writing: “Plaintiffs here have pled sufficient facts to withstand a motion to dismiss on the basis of official immunity or the public duty doctrine. Plaintiffs have set forth very broad allegations stating that the defendants acted recklessly and willfully in failing to properly train, hire and supervise the police officers for the City of Gerald. If true, these facts would likely overcome the protections afforded by official immunity or the public duty doctrine, even assuming that these defenses were applicable. Although a summary judgment motion under one of these theories might be appropriate at a later time, dismissal at this stage is not warranted. Defendants’ motion to dismiss on the basis of official immunity and the public duty doctrine will be denied.”

She also denied the city’s “prayer for attorney fees” requested in a separate motion which also sought to prohibit the plaintiffs from obtaining legal fees listed in Counts 3 to 15 in the “second amended complaint. “Defendants’ motion will be denied at this time without prejudice,” she ruled. “Defendants may raise arguments relating to attorney fees once this case proceeds to trial.”

Her order to “dismiss is granted only to the extent that all claims against defendant City of Gerald Police Department are dismissed with prejudice” meaning this claim specifically related to the police department can not be filed again. “Defendants’ motion is denied in all other respects,” she ruled noting a Rule 16 (scheduling) conference would be ordered by separate ruling The city’s motion to deny the plaintiffs’ “prayer for attorney fees is denied without prejudice” meaning it may be filed again at a later date.

Perry concluding ruling Briegel had 14 days, or until Tuesday, Nov. 18, “to show cause…why their claims against defendants Ryan McCrary, Scott Ramsey, Shannon Kestermont, and William Jacob (sic) should not be dismissed without prejudice for lack of service.”

“In the next few weeks there will be developments that will help you understand why all this is taking place,” said Briegel.

(With reporting by Linda Trest)