Moran v. Clarke, ANNE-MARIE

• Citation: 247 F.3d 799
• Decision Date: 10 January 2001
• Docket Number: ANNE-MARIE,No. 00-1015,00-1015
• Parties: (8th Cir. 2001) THOMAS MORAN, APPELLANT, v.CLARKE; ROBERT HAAR; WAYMAN F. SMITH, III; JEFFERY JAMISON; CLARENCE HARMON, COMPRISING THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF ST. LOUIS; RONALD HENDERSON; PAUL M. NOCCHIERO; GREGORY HAWKINS: AL KLEIN; WILLIE THIRDKILL; JACK HUELSMANN; WILLIAM KUSMEC; WILLIAM SWIDERSKI; RICHARD BOOKER, JR.; TERRENCE DUPREE; BARRY GREENE; STEVEN PETTY; HARVEY LAUX, APPELLEES. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 799

247 F.3d 799 (8th Cir. 2001)

THOMAS MORAN, APPELLANT, v. ANNE-MARIE CLARKE; ROBERT HAAR; WAYMAN F. SMITH, III; JEFFERY JAMISON; CLARENCE HARMON, COMPRISING THE BOARD OF POLICE COMMISSIONERS OF THE CITY OF ST. LOUIS; RONALD HENDERSON; PAUL M. NOCCHIERO; GREGORY HAWKINS: AL KLEIN; WILLIE THIRDKILL; JACK HUELSMANN; WILLIAM KUSMEC; WILLIAM SWIDERSKI; RICHARD BOOKER, JR.; TERRENCE DUPREE; BARRY GREENE; STEVEN PETTY; HARVEY LAUX, APPELLEES.

No. 00-1015

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: January 10, 2001

Filed: April 16, 2001

As amended May 1, 2001

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

Beam, Morris Sheppard Arnold, Circuit Judges, and Doty, District Judge. ¹

Beam, Circuit Judge.

Thomas Moran, a St. Louis police officer, sued the St. Louis Board of Police Commissioners ("the Board" or "Board") along with various police officials and officers, alleging malicious prosecution and violations of his substantive due process rights. He now appeals the district court's adverse grant of judgment as a matter of law, along with various evidentiary and discovery rulings and the district court's denial of his motion for recusal. We find the district court erred in awarding judgment as a matter of law. We reverse and remand for a new trial, and for reconsideration of the evidentiary, discovery and recusal rulings.

I.

This action represents the end product of a tragic series of events. On April 14, 1997, St. Louis police officers Richard Booker and Steven Petty responded to a report of a burglar alarm at a private residence. ² Inside the apartment, the officers encountered Gregory Bell, a mentally-impaired teenager. Bell's impairment prevented him from providing the proper alarm code or explaining to the officers that he lived there. Thinking him a burglar, the officers attempted to place Bell under arrest, whereupon Bell resisted. During the ensuing fight, the officers repeatedly struck him with metal batons and sprayed him with mace. During the struggle, one of the officers placed an "officer in need of aid" call.

At that time, Sergeant Moran was on duty at a police substation. With him were EMS attendants Mark Rauss and Larry Campbell. When the "officer in need of aid" call came in, Moran immediately headed to the scene. Anticipating their own call, Rauss and Campbell also responded. When Moran reached the scene, ten to thirteen police cars already blocked the street. Moran had to park far down the street and walk back to the residence. Meanwhile, some combination of responding officers eventually subdued Bell. After he ceased resisting, Bell was brought from the house in handcuffs. Dispatcher and 911 tape recordings show that Moran did not arrive at the house until after Bell had been subdued. Moran alleges that after he arrived on the scene, he entered the house and encountered Bell in the kitchen as he was being removed from the house. Rauss and Campbell treated Bell from the moment he was brought outside until the time he was transported from the scene. According to Rauss, Moran did not use mace on Bell during that period. The incident left Bell with severe lacerations to the head and a broken ankle. It is undisputed that throughout this course of events, Moran neither struck nor used mace upon Gregory Bell.

Within seventy-two hours of the incident, Police Chief Ronald Henderson apologized publicly and committed himself to finding and punishing the responsible officers. On April 19th, the Saturday following the beating, Major Hawkins, the Inspector of Police, received an anonymous phone call informing him that Officer Barry Greene had been at the scene and wanted to make a statement. Ordinarily, internal investigations are handled by the Internal Affairs Division ("IAD") and Chiefs of Police are rarely involved. In this case, however, Major Hawkins, Chief Henderson and Captain Nocchiero, the IAD commander, met with Officer Greene that Saturday evening in Henderson's office, while the assigned IAD investigators, Sergeants Thirdkill and Klein, were never notified. Officer Greene gave a taped statement accusing Sergeant Moran of beating Bell. None of the participants asked Greene a single question. Greene later testified that in fact he gave two statements, the first of which did not implicate Moran, and which was not recorded.

In the wake of the beating, IAD began interviewing all those involved, and ultimately interviewed approximately fifteen officers. Among those interviewed were Officers Petty and Booker, both of whom waived their Miranda rights and gave statements. At trial, Moran established that officers in such a situation, facing potential criminal charges of their own, usually do not waive their rights. Booker testified that he would not have waived his Miranda rights had he not known at that point that he was not a target of any criminal investigation.

After the first round of interviews, no other officer had corroborated Officer Greene's allegation. IAD then began calling officers back for repeated rounds of additional interviews. Curious about IAD's conduct, Richard Barry and Andrew Leonard, the attorneys representing the various officers, inquired of Captain Nocchiero what IAD thought was "the truth." Nocchiero said that he could not answer the question, and then walked out of his office. He returned shortly, and ushered the two attorneys into Chief Henderson's office. In response to the same question, according to Richard Barry, Chief Henderson became animated and stated, "I want the sergeant . . . the white sergeant." Neither Barry nor Leonard had any doubt that Henderson meant Moran. Leonard was convinced that Chief Henderson was driving the internal investigation. Henderson made clear to the attorneys that officers changing their statements would not be prosecuted for any inconsistencies with their first statements.

Among those interviewed was Officer T.J. DuPree. Officer DuPree had been present at the Bell beating, and had afterwards corroborated Officer Booker's report on the incident. That report contained several inaccuracies, including some relating to Officer DuPree's conduct. In his initial interview, Officer DuPree stood by the report, encouraged to do so by Moran. When recalled for a subsequent interview, DuPree was working the night shift. Every morning for a week, after finishing his shift, he was required to report to IAD, where he was left to sit without speaking to anyone. Having seen Chief Henderson's statement to the media, Officer DuPree knew that the Department had committed itself to punishing a wrongdoer. He also knew through the "rumor mill" that the Department was after Moran. Knowing that in his first statement he had corroborated Booker's inaccurate report, DuPree again spoke with IAD on May 8, 1997, heeded their repeated exhortations to give them "the truth" and implicated Moran. He then immediately recanted that implication and restated that Moran had acted properly. At trial, DuPree testified he changed his statement and implicated Moran for fear of losing his job.

Shortly after hearing Officer Greene's Saturday night statement, and while IAD was still interviewing officers, Chief Henderson took Officer Greene, Major Hawkins, Captain Nocchiero and two IAD investigators to speak with Dee Joyce-Hayes, the Circuit Attorney for the City of St. Louis, to report Moran's alleged wrongdoing. Henderson did this despite having the statements of fifteen other officers, none of which implicated Moran. After receiving Officer DuPree's May 8th statement, Chief Henderson suspended Moran without pay.

Moran was ultimately accused of having assaulted Bell by striking him about the head with an ASP baton and by spraying mace in his face, both after Bell had ceased resisting. On May 16, 1997, the Metropolitan Police Department Bureau of Professional Standards charged Moran with assault, use of excessive force with an ASP baton, and use of excessive force with mace. Chief Henderson and Major Hawkins signed off on these charges. On June 5, 1997, Moran was indicted by a grand jury on criminal charges of felony assault, misdemeanor assault and conspiracy to hinder prosecution.

The charges against Moran were assigned to Assistant Circuit Attorney Douglas Pribble. After reviewing the evidence, Pribble wrote a memorandum to Circuit Attorney Joyce-Hayes which detailed the inconsistencies between the various officers' statements, thoroughly discredited Greene's testimony, and demonstrated how the evidence not only failed to build a case against Moran, but in fact completely exonerated him. The prosecution proceeded, and Pribble subsequently left the circuit attorney's office.

In April of 1998, a jury acquitted Moran of all criminal charges. On May 22, 1998, the St. Louis Post-Dispatch reported that the Police Department had reached a $250,000 settlement with the Bell family. The paper reported this to be the largest settlement ever paid by the Department. On May 18, 1998, one year after the Bureau of Professional Standards had first filed its administrative charges against Moran, and two weeks before his administrative hearing, a fourth charge of failure to properly exercise his duties as a police sergeant was added against him. This additional charge was also authorized by Major Hawkins and Chief Henderson.

Moran's administrative hearing occurred on June 4 and 5, 1998, and July 15, 16, 28, 29 and 31, 1998. At this hearing, numerous witnesses favorable to Moran who had testified for him at his criminal trial asserted their Fifth Amendment privilege and declined to testify. They did so because shortly before the hearing began they had been informed that they were the targets of additional internal procedures. The hearing officer ultimately recommended acquittal on the assault and excessive force charges. However, he recommended sustaining the fourth charge on the grounds that Moran directed Booker to file a...