                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-1931
                                    ___________

Sharon Denise Kennell,                   *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Diahann Gates,                           *
                                         *
             Appellant.                  *
                                    ___________

                             Submitted: February 16, 2000
                                 Filed: June 14, 2000
                                  ___________

Before BOWMAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

BOWMAN, Circuit Judge.

        Officer Diahann Gates of the St. Louis Metropolitan Police Department appeals
from the jury verdict finding her liable under 42 U.S.C. § 1983 (Supp. III 1997) for
plaintiff Sharon Denise Kennell's six-day confinement on an arrest warrant issued for
Sharon's sister, Deborah Kennell. We must decide whether evidence that Gates was
sent a report over an in-house computer message system indicating that the wrong sister
was in custody is sufficient to allow a jury to find that Gates had actual knowledge of
a substantial risk that Sharon was mistakenly imprisoned. We hold that the evidence
was sufficient, and we affirm.
                                             I.

       We state the facts in the light most favorable to the jury's verdict. On March 30,
1995, Sharon Kennell was driving her mother to a credit union in Country Club Hills,
a suburban municipality in St. Louis County. She was stopped by a Country Club Hills
police officer because the car was missing its rear license plate. Because Sharon did not
have her driver's license nor any other form of identification with her, she told the officer
her full name, Sharon Denise Kennell, and her date of birth, June 14, 1959. The officer
went to his vehicle, presumably to check the information by computer, and then returned
to inform Sharon that her name was listed as an alias for Deborah Kennell for whom
there was an outstanding arrest warrant.1 Both Sharon and her mother told the officer
that she was not Deborah Kennell and that Deborah was, in fact, Sharon's sister.
Nevertheless, the officer arrested Sharon and had her transferred to the St. Louis City
Police Department.

      At the Department, Sharon was processed by Officer Diahann Gates of the
Warrant and Fugitive Section. During processing, Sharon protested to Gates that she
was not Deborah Kennell. Gates obtained record photographs of both sisters and
concluded that Deborah's photograph matched Sharon.2 Sharon then requested that her


       1
         On January 27, 1991, Deborah Kennell was arrested by the St. Louis City
Police Department and gave her name as Sharon Kennell. After her deception was
discovered, the Department listed Sharon Kennell as a known alias for Deborah
Kennell on Deborah's record. Sharon and Deborah lived at the same address. The
social security numbers and dates of birth of both Sharon and Deborah were listed on
Deborah's arrest record. Sharon's arrest on the warrant issued for Deborah was based
on this alias listing.
       2
        As both sisters had prior arrests, the photographs presumably were obtained
from departmental records. Sharon and Deborah are both of medium build, but Sharon
is about two inches taller, and Deborah is about one year older. Gates denies having
                                             -2-
fingerprints be taken in order to prove that she was not Deborah. Gates forwarded her
to the Prisoner Processing Section, where she eventually was fingerprinted in the normal
course of processing. After being fingerprinted, Sharon was placed in a holdover cell
for about an hour. As Gates prepared to transfer Sharon to the workhouse, Sharon
asked about the fingerprints. Gates responded, "Evidently, they came back Deborah
Kennell." Sharon remained in the workhouse for six days until Deborah's parole officer
arrived and discovered that the police had the wrong sister.

       In fact, the report on Sharon's fingerprints had not yet come back. After Sharon
was fingerprinted, her fingerprints were sent to the Identification Section where they
were analyzed by Fingerprint Technician Laureen Dudley. Dudley discovered that
Sharon's fingerprints did not match the prints on file for the individual described in the
arrest warrant—that is, the fingerprints did not match the known prints for Deborah
Kennell.3 Dudley then sent an in-house computer message to the Warrant and Fugitive
Section and specifically to the attention of Gates, notifying her that the wrong person
was in custody. The message went out at 7:30 p.m. after Gates's shift that day had
ended. Gates worked a regular eight-hour shift the next day and in the days to follow,
but never took action to release Sharon. The message was sent via an in-house



obtained and compared the two photographs.
      3
         Officer Dennis Stefen, the supervisor of the Fingerprint Processing Unit of the
Prisoner Processing Division of the Department, testified regarding the Unit's
identification procedures. Everyone arrested by the Department is fingerprinted for
identification purposes. An individual arrested for the first time would then be assigned
a local identification (LID) number, which is a unique identifying number. In the case
of an arrestee with a prior arrest record, the fingerprints would be matched to the
arrestee's LID number.
       Both Sharon and Deborah had prior arrest records. Dudley determined that
Sharon's fingerprints matched LID number 220521—Sharon's LID number—and not
LID number 202549—Deborah's LID number and the LID number listed on the arrest
warrant.
                                           -3-
computer message system to a printer—similar to a teletypewriter—located in the
Warrant and Fugitive Section office. In that office, there is only one printer, and it
generates numerous messages every day. Although Gates has access to the printer, it
is not her duty to check for messages. Gates testified that normally she either is handed
the message or it is placed on her desk. In this case, however, Gates testified that she
never received the message.

        Sharon brought suit against the City of St. Louis, the Department, Gates, and
several other Department employees, alleging various state claims and a 42 U.S.C.
§ 1983 claim. By the close of evidence at trial, the District Court had directed a verdict
for all defendants except Gates. In her motion for a directed verdict, Gates argued that
she was entitled to qualified immunity, that she acted reasonably in her efforts to
identify Sharon, and that, even if she had not acted reasonably, a merely negligent
mistake as to identity does not rise to the level of a constitutional violation. Gates added
that her "failure . . . to receive the ID section memo is not proof of any wrongdoing on
[her] behalf . . . but rather evidence of a breakdown in the interoffice mail system."
Defendant's Board of Police Commissioners, Ryan and Gates Motion for Directed
Verdict at the Close of Plaintiff's Case at 2.

       The District Court denied Gates's motion, reasoning that "an individual can
maintain a [§] 1983 action based on false detention, where there is evidence that the
officer in question was deliberately indifferent to the information that would indicate that
the detention was unlawful." Transcript of Trial at 193. The court agreed with Gates's
characterization of the law, that a negligent mistake of identity does not constitute a
constitutional violation, but concluded that the evidence of the Identification Section
message was sufficient for a jury to conclude that Gates had acted with deliberate
indifference:

       The jury has every reason to disbelieve Officer Gates'[s] testimony on
       [whether she received the Identification Section message], since it's

                                            -4-
      undisputed that this report from the identification section was sent to her.
      Whether she got it or not, that's up to the jury to decide. They may believe
      she didn't get it. They may believe she did get it.
             ...
             . . . The issue is not whether [Gates] should have done more, so
      much as whether she had information available to her, in her possession,
      that would have told her that she had the wrong person.

Transcript of Trial at 189. Accordingly, the court submitted Sharon's § 1983 claim to
the jury on a deliberate indifference instruction.4 The jury returned a plaintiff's verdict
for $10,000. The court denied Gates's motion for judgment notwithstanding the verdict
or alternatively for a new trial. Gates now appeals.


      4
         Only Sharon's § 1983 claim against Gates was submitted to the jury, and only
that claim is before us on appeal. The deliberate indifference instruction stated:

             Deliberate indifference is established only if there is actual
      knowledge of a substantial risk that plaintiff would be mistakenly
      imprisoned and if the defendant disregards that risk by intentionally
      refusing or failing to take reasonable measures to deal with the problem.
      Mere negligence or inadvertence does not constitute deliberate
      indifference.

Instruction No. 6 at 1. Gates did not object to, and does not appeal from, the use of
this jury instruction, and thus it is the law of the case and the standard we use in
reviewing the sufficiency of the evidence in this appeal. Nevertheless, we believe that
a strong argument could have been made that false detention claims like Sharon's, in
which the initial seizure is reasonable, should be reviewed under the more demanding
"shocks-the-conscience" standard of Rochin v. California, 342 U.S. 165 (1952). See
Baker v. McCollan, 443 U.S. 137, 147-48 (1979) (Blackmun, J., concurring). But see
Gray v. Cuyahoga County Sheriff's Dep't., 160 F.3d 276, 276 (6th Cir. 1998),
amending, 150 F.3d 579 (6th Cir.), cert. denied, 119 S. Ct. 1763 (1999); Romero v.
Fay, 45 F.3d 1472, 1480 (10th Cir. 1995); Cannon v. Macon County, 1 F.3d 1558,
1562-64 (11th Cir. 1993), amended by, 15 F.3d 1022 (11th Cir. 1994); Sanders v.
English, 950 F.2d 1152, 1160-62 (5th Cir. 1992).
                                            -5-
                                           II.

       On appeal, Gates again argues that her acts amounted at most to negligence and
do not constitute a constitutional violation. We review de novo whether there was
sufficient evidence to support the jury's verdict. Gates must demonstrate that the
evidence fails to support any reasonable inference that she violated Sharon's
constitutional rights. See Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th Cir.
1998). We completely agree with Gates's legal analysis that an unreasonable or
negligent refusal to investigate claims of innocence or mistaken identity of an individual
detained pursuant to facially-valid warrant for a few days does not amount to a
constitutional violation. See Baker v. McCollan, 443 U.S. 137, 145-46 (1979); Lane
v. Sarpy County, 165 F.3d 623, 624 (8th Cir. 1999). There is no question here that
Sharon was arrested on a facially-valid warrant. Nor is there question that probable
cause initially existed for Gates to believe that Sharon was the individual described in
the warrant. Even assuming that Gates's failure to investigate Sharon's mistaken identity
claim further or to inquire about the results of the fingerprint analysis was unreasonable
or negligent, those actions cannot amount to a constitutional violation for this six-day
confinement.

      We are left, however, with the theory under which the District Court denied
Gates's motion for a directed verdict: that the jury was entitled to infer that Gates was
aware of the mistake and failed to act. In order for a jury to be able to find that Gates
knew that Sharon was detained mistakenly—the finding required by the deliberate
indifference instruction—Sharon was required to produce evidence sufficient for the jury
to infer that Gates received and read the Identification Section message.




                                           -6-
       A jury generally is permitted to infer that information sent via a reliable
means—such as the postal service or a telegram—was received. See United States v.
Hairopoulos, 118 F.3d 1240, 1244 (8th Cir. 1997) ("A letter properly addressed and
mailed is presumed to have been delivered to the addressee."); Wagner Tractor, Inc. v.
Shields, 381 F.2d 441, 446 (9th Cir. 1967) ("There is a presumption of receipt after
proper dispatch of a telegram analogous to letters properly mailed."). We see no
principled reason why a jury would not be able to make the same inference regarding
other forms of communication—such as facsimiles, electronic mail, and in-house
computer message systems—provided they are accepted as generally reliable and that
the particular message is properly dispatched. See, e.g., United States v. Galiczynski,
44 F. Supp. 2d 707, 714 (E.D. Pa.) ("The rebuttable presumption of service by mailing,
or in this case, by fax, can be established by pointing to circumstantial evidence, such
as evidence of standard operating office procedures or business practices regularly used
concerning the mailing or faxing of documents by a party."), aff'd, 203 F.3d 818 (3d Cir.
1999); American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 240 (Tex.
App. 1999) ("Admission of evidence showing a telephonic document transfer to the
recipient's current telecopier number gives rise to a presumption that notice was duly
received by the addressee."); SSI Med. Servs., Inc. v. New Jersey, 685 A.2d 1, 5-6 &
n.1 (N.J. 1996) (discussing nature of evidence required to raise presumption of mailing
and receipt for electronic mail). In this case, Stefen, the supervisor of the Fingerprint
Processing Unit, was able to testify that the message had been properly sent to Gates
by looking at a copy of the message. Additionally, Stefen testified that the message had
printed on the printer in the Warrant and Fugitive Section.5 We believe that this


      5
        Stefen's testimony supports the conclusion that the message was sent to and
received by the Warrant and Fugitive Section:

      Q    Did you investigate the cause or whether or not a computer
      message in this particular case actually went out?
      A    Oh, a computer message went out, because we have a copy of it.
      We keep copies . . . in the identification section of all of those.
                                           -7-
testimony of one familiar with the reliability of this communication system that the
message definitely had been sent is sufficient to allow a jury to reasonably conclude that
the message in fact reached the Warrant and Fugitive Section.

       There remains the further matter of whether there is evidence to suggest a finding
that the message was delivered to Gates from the printer in her section. To demonstrate
proper dispatch of a message, courts generally have accepted evidence of customary
mailing practices. For example, this Court has applied the Texas rule that evidence of
customary intra-company procedures is sufficient to establish that a particular letter was
sent out. See Shur-Value Stamps, Inc. v. Phillips Petroleum Co., 50 F.3d 592, 595-96
(8th Cir. 1995). If evidence of an organization's mail room practices is sufficient to
establish that an outgoing letter from employee Jane Doe was dispatched to the


      Q        So can you tell me for sure that this computer message . . . actually
      did go out addressed to Police Officer Gates?
      A        That is correct.
      Q        And it went out at the time and on the date at the top of the page?
      A        Yes. It went out at 7:30 p.m. on March 30th, 1995.
      Q        When you get a mistaken identity case such as this one, does the
      . . . fingerprint technician or the person who generates the report, make
      a phone call to the department or to that arresting officer to tell them?
      A        No, no. It's all done electronically by computer message. No
      telephonic notifications are made.
      Q        And everybody knows to check their messages on those types of
      things?
      A        Yes. If you're there in the building, if you're working. You know,
      if not, your messages just pile up if you're off.
      Q        And do you know how they're distributed? The messages that are
      addressed to individuals?
      A        In the Warrant and Fugitives office, I have no idea how they make
      distribution. All I know is the messages do print off, you know.

Transcript of Trial at 131-32.
                                           -8-
addressee, then similar evidence of customary mail room practices should be sufficient
to establish that an incoming letter to employee Jane Doe was received by her. Both
situations depend on the reliability of the organization's internal delivery processes, and
evidence regarding the customary workings and reliability of those processes should be
sufficient. In this case, Gates testified that she normally gets the printer messages and
that they are either handed to her or placed on her desk by a clerk in the Warrant and
Fugitive Section who is responsible for deliveries. There is no evidence that Gates had
failed to receive other printer messages. Though we regard this as a very close call, we
believe this evidence sufficient to allow the jury to reasonably infer that the
Identification Section message was delivered to Gates from the printer in her section.

       Of course, the jury was not required to conclude that Gates received the
Identification Section message. As the District Court pointed out, the jury could have
believed her testimony that, despite the customary delivery procedures, she never
received the message. But, given the verdict, it is apparent the jury did not find her
testimony credible. Credibility determinations of this sort are for the jury to make and
may not be overturned by reviewing judges. Because the evidence supports a
reasonable inference that Gates received the message and knew that Sharon was
detained wrongfully, and because we hold that Gates's actual knowledge of this
wrongful detention is sufficient to establish deliberate indifference in this § 1983 case,
we must affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                            -9-
