192 F.3d 1125 (8th Cir. 1999), 98-3770, Anderson v. Franklin County

Docket Nº:98-3770
Citation:192 F.3d 1125
Party Name:Benjamin A. Anderson; Benjamin M. Anderson, Appellants, v. Franklin County, Missouri; and Gary F. Toelke, Doug Winholt, Janice Crews, in their individual and official capacities, Appellees.
Case Date:September 21, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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192 F.3d 1125 (8th Cir. 1999)

Benjamin A. Anderson; Benjamin M. Anderson, Appellants,


Franklin County, Missouri; and Gary F. Toelke, Doug Winholt, Janice Crews, in their individual and official capacities, Appellees.

No. 98-3770

United States Court of Appeals, Eighth Circuit

September 21, 1999

Submitted: April 19, 1999

Appeal from the United States District Court for the Eastern District of Missouri.

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[Copyrighted Material Omitted]

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Before RICHARD S. ARNOLD and WOLLMAN,1 Circuit Judges, and MAGNUSON,2 District Judge.

MAGNUSON, District Judge.

Benjamin A. Anderson and Benjamin M. Anderson seek a new trial, asserting that the district court 3 erred in excluding an eyewitness' testimony and in denying a motion to permit examination of police audio tapes for evidence of tampering. Further, appellants challenge the district court's 4 adverse entry of summary judgment and dismissal of their federal and state claims for false arrest and imprisonment and various other constitutional claims. We affirm.

On February 1, 1994, the Franklin County Sheriff's Department dispatched officers to Benjamin M. Anderson's ("Anderson Jr.") home in response to a family dispute 911 call placed by Anderson Jr.'s stepdaughter. While en route, appellee Deputy Doug Winholt was radioed that an outstanding Illinois warrant existed for

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a "Benjamin Anderson" for theft over $10,000.00 by deceit.

Winholt reported that, upon his arrival on the scene, he observed Benjamin A.Anderson ("Anderson Sr.") standing in the middle of the driveway holding a rifle. Anderson Sr. had initially positioned himself in the driveway to block his step-granddaughter from leaving the premises. He had, however, on hearing the approaching police siren, determined that he would intercept the police in order to talk to them and explain the situation. After Winholt stopped his car and told Anderson Sr. that he needed to enter the property, Anderson Sr. asked if the officer had a warrant. Winholt responded affirmatively. He then asked Anderson Sr. to relinquish his gun. Anderson Sr. refused. After several attempts, Winholt was eventually able to seize the weapon. He then got back in his vehicle, intending to proceed to Anderson Jr.'s house. His progress was impeded, however, by Anderson Sr., who repeatedly stepped in front of the patrol car. Attempting to get around him, Winholt admits striking Anderson Sr. with his vehicle. According to Anderson Sr., the third time he was struck he fell forward onto the vehicle's hood and Winholt drove several feet up the driveway before Anderson Sr. rolled from the car. Winholt then radioed his backup, appellee Corporal Janice Crews, and instructed her that on her arrival she should arrest Anderson Sr. for interfering with an officer in the line of duty. Crews arrived soon thereafter and, according to her deposition, Anderson Sr. refused to follow her instructions to put his hands on the hood of her car. As a result, she maced him. For his part, Anderson Sr. asserts that he did not resist arrest but rather offered to be handcuffed.

Upon his arrival at Anderson Jr.'s residence, Winholt informed Anderson Jr. that he was placing him under arrest. Anderson Jr. asked to see a warrant. According to Winholt, Anderson Jr. then resisted being handcuffed and eventually had to be subdued with mace. Anderson Jr. denies having resisted arrest. His version is that he simply turned to put out his cigarette and the next thing he knew he was maced.

Appellants were transported to the Franklin County Sheriff's Department. Anderson Sr. posted bond and was released the next day. One month later,5 due to an apparent clerical error, Anderson Sr. was rearrested on the same charge. On January 12, 1995, Anderson Jr. pled guilty to a misdemeanor charge of theft under $300, one of the two charges on which the Illinois warrant had been issued. As part of the plea agreement, the felony charge of theft over $10,000 was dismissed.

In September 1995, Anderson Sr. filed a complaint against Franklin County, Missouri, Sheriff Toelke, and law officers Winholt and Crews, asserting claims under 42 U.S.C. § 1983 for unconstitutional arrest and imprisonment and use of excessive force. He asserted state law claims for false arrest and imprisonment, malicious prosecution, assault and battery. In a subsequent action, Anderson Jr. sought recovery under § 1983 for unconstitutional arrest and confinement and excessive force, and state law claims for false arrest and imprisonment, assault and battery. The actions were consolidated in June 1996.

Appellees filed a partial summary judgment motion against appellants in October 1996. The district court entered a partial summary judgment order granting (1) summary judgment for all appellees against Anderson Sr. on his § 1983 claims and state law claims for false arrest and imprisonment; (2) summary judgment for Franklin County against Anderson Sr. on his § 1983 claim for excessive use of force and on his state law claims for malicious prosecution, assault and battery; and (3) summary judgment for Franklin County against Anderson Jr. on his § 1983 excessive

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force claim and state law claims for assault and battery. Further, the district court dismissed with prejudice appellants' various First, Second, Fifth and Sixth Amendment claims under § 1983. The court, in May 1999, also granted appellees' renewed summary judgment motion in favor of Toelke, Winholt, and Crews and against Anderson Sr. on his claims for false arrest and imprisonment and malicious prosecution, claims based on the erroneous rearrest of Anderson Sr. In addition, summary judgment was entered for Toelke and against Anderson Sr. on his § 1983 excessive force claim.

On April 14, 1997, the district court appointed sign language interpreter Chad Darce to interpret the deposition of Leroy Wideman, the sole eyewitness to the altercation between Anderson Sr. and the police officers. Wideman is both deaf and mute and cannot read or write. However, after meeting with the witness, Darce concluded that he could not do an adequate job of interpreting because Wideman could not communicate with a standard form of sign language. Instead, he used a self-learned and unique form of "home signing," which Darce described as similar to charades. In a further attempt to facilitate Wideman's testimony, the district court allowed appellants to designate new interpreters: Geneva Shearburn and Antonia Wilson. Their process of interpretation entailed Shearburn signing questions to Wilson, who is also deaf and mute, who would then relate home signs to Wideman. Wilson then relayed Wideman's responses to Shearburn, who would communicate the responses verbally. A videotape deposition of Wideman was taken using this procedure. Appellees brought a pretrial motion to exclude Wideman's testimony. After a hearing on the matter and reviewing the tape, the court granted the motion.

In another pretrial order, noting that the motion was brought more than a year and a half after the discovery cutoff date, the district court denied appellants' request for additional expert examination of the tape recording of the police radio transmissions. The court's decision was predicated on appellants' failure to show good cause for their untimely motion and, more importantly, upon the fact that the issue of whether the tapes had been altered was moot since the question of when appellees had notice of a warrant was irrelevant to the claims that remained for trial.

The trial commenced in September 1998. The claims remaining for trial consisted of both appellants'...

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