Schmidt v. City of Bella Villa

• Decision Date: 02 March 2009
• Docket Number: No. 07-3053.,07-3053.
• Citation: 557 F.3d 564
• Parties: Jami Neco SCHMIDT, Plaintiff-Appellant, v. CITY OF BELLA VILLA; Edward Locke, Jr., Chief of Police, in his individual capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

557 F.3d 564

Jami Neco SCHMIDT, Plaintiff-Appellant, v. CITY OF BELLA VILLA; Edward Locke, Jr., Chief of Police, in his individual capacity, Defendants-Appellees.

No. 07-3053.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2008.

Filed: March 2, 2009.

W. Bevis Schock, St. Louis, MO, for appellant.

Priscilla F. Gunn, argued, Jessica L. Liss, on the brief, St. Louis, MO, for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MELLOY, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Jami Neco Schmidt filed this claim for damages under 42 U.S.C. § 1983 and Missouri's strip search law, Mo.Rev.Stat. § 544.193. She brought claims against the City of Bella Villa, Missouri, and Chief of Police Edward Locke, Jr. in connection with the alleged post-arrest photographing of her tattoo. She appeals from the district court's¹ entry of summary judgment on each of her claims and from two evidentiary decisions. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

On June 3, 2005, Jami Neco Schmidt, a 20-year-old woman, was riding in a vehicle driven by Sarah McVey. Police Chief Edward Locke, Jr. stopped the vehicle after McVey committed several moving violations. During the stop, Locke smelled alcohol and observed at least two open cans of beer in the car. Locke asked the passengers, including Schmidt, for identification.

Schmidt gave a false name, "Samantha Smith," and a false date of birth and social security number. When Locke attempted to run the passengers' identifying information through his computer, he learned that the information Schmidt had given was false. Schmidt also failed field sobriety tests. Locke arrested Schmidt for making a false declaration and for being a minor in possession of alcohol. Locke issued a citation to McVey, the driver, but did not arrest her or any of the other passengers in the car. Locke then transported Schmidt to the Bella Villa police station. Schmidt does not contest the propriety of her arrest.

At the police station, Locke interviewed Schmidt regarding her identity. This process included the completion of a booking sheet with information about the arrest and Schmidt's identification. The booking sheet included a section for listing "scars/marks/tattoos/deformities." In response to Locke's inquiry about whether she had any scars, marks, tattoos or deformities, Schmidt indicated that she had a butterfly tattoo. The tattoo is approximately two inches long and is located approximately two inches from Schmidt's hipbone. The tattoo was hidden by her clothing at the time of her booking.

The following facts are in dispute, but for the purposes of reviewing a motion for summary judgment, we will recite the facts in the manner most favorable to Schmidt, the nonmoving party. O'Brien v. Dep't of Agriculture, 532 F.3d 805, 808 (8th Cir.2008). After Schmidt described her tattoo to Locke, he requested that she take a picture of the tattoo. When she asked why he needed a picture, he told her that it was for identification purposes. Locke provided Schmidt with a Polaroid camera and asked her to go into the bathroom to take a picture of the tattoo. When she returned with a photograph of her tattoo, Locke examined the picture and stated that it was not good enough. Locke indicated that he would need to take a better picture. Pursuant to Locke's request, Schmidt unbuttoned her jeans partway and folded them inwards to permit him to take a photograph. He again rejected this photograph as being incomplete or otherwise unacceptable. To permit Locke to take an acceptable photograph, Schmidt further unbuttoned her jeans and folded them inwards again. Locke took a second photograph, which he apparently found to be acceptable. Schmidt was later released on her own recognizance.

In her brief to this court, Schmidt alleges that Locke used harassing and/or threatening language toward her during her time in custody. However, these allegations were not before the district court in response to the motion for summary judgment. See Holland v. Sam's Club, 487 F.3d 641, 644 (8th Cir.2007).

Schmidt alleged multiple claims based on the incident of photographing her tattoo. She brought claims under 42 U.S.C. § 1983 that Locke violated her Fourth and Fourteenth Amendment rights. She additionally alleges four theories of municipal liability. Finally, she brought tort claims against the City and Locke under Missouri's strip search law, Mo.Rev.Stat. § 544.193.

After discovery, the district court granted a motion to strike Schmidt's expert witness, St. Louis Police Officer, Lieutenant Anthony Russo. After her deposition, Schmidt also filed a photographic exhibit allegedly depicting her tattoo. The district court also granted a motion to strike the exhibit. Finally, City and Locke filed a motion for summary judgment on all of Schmidt's claims. In response, Schmidt conceded several, and the court granted summary judgment on the remaining claims.² Schmidt appeals these rulings, which we affirm.³

II. Evidentiary Issues.

A. Exclusion of Photographic Exhibit.

Schmidt appeals from the district court's exclusion of a photographic exhibit she submitted to show the location of her tattoo and the position of her clothing when Chief Locke took his photos.⁴ City and Locke urge us to uphold the district court's order striking the exhibit on the basis that there was insufficient foundation to establish the authenticity of the photograph. See Fed.R.Evid. 901. We review the district court's order for abuse of discretion and accord the district court's evidentiary decisions substantial deference. Watson v. O'Neill, 365 F.3d 609, 615 (8th Cir.2004). "[W]e may not reverse unless the district court erred and the error affected the substantial rights of the appellant." Green v. City of St. Louis, 507 F.3d 662, 669 (8th Cir.2007) (citing Archer Daniels Midland Co. v. Aon Risk Servs., Inc., 356 F.3d 850, 857 (8th Cir.2004)).

In order to be admissible, a photograph must be shown to be an accurate representation of the thing depicted as it appeared at the relevant time. See United States v. Stierwalt, 16 F.3d 282, 286 (8th Cir.1994). Schmidt contends that the photographic exhibit accurately depicts her tattoo and, thus, should be admitted. However, Schmidt's argument shows that her purpose is not to show the condition and location of the tattoo on the date it was photographed in her attorney's office. Rather, Schmidt submits the exhibit for the purpose of showing not only the tattoo, but the location of her clothing and her state of undress in the station photographs. We evaluate the authenticity of the exhibit in that context.

The district court found that the legal secretary to Schmidt's counsel, who provided the affidavit accompanying the exhibit, had no personal knowledge of whether the tattoo depicted in the photograph was in the same location and condition on June 3, 2005, as depicted in the station photographs. Further, the district court was troubled by the discrepancy between allegations in Schmidt's complaint and her deposition testimony that raise questions about whether the photographic exhibit is an accurate representation of the location of Schmidt's clothing at the time of her arrest. In the exhibit, Schmidt's jeans are unzipped and folded outward to display her tattoo. As the court noted, Schmidt alleged in her complaint that she "unbuttoned" her jeans and "cropped" them inward to permit Locke to take the photographs. Thus, the jeans worn in the exhibit are not the same jeans worn by Schmidt during the photographing, nor are they arranged in the same manner. We find no abuse of discretion in the district court's decision to strike the photographic exhibit for lack of foundation.

Even if we were to determine that the photographic exhibit was admissible for the limited purpose of showing the location and condition of Schmidt's tattoo, we could not conclude that the error affected Schmidt's substantial rights. Although there is a semantic disagreement regarding what to call the location of the tattoo, it is undisputed that the tattoo is located two inches from Schmidt's hipbone on her lower abdomen. Schmidt admits as much in her brief to this court: "Appellant asserts that even without the photo[,] her testimony in her deposition was sufficient to establish the location of the tattoo." We affirm the district court's decision to exclude the photographic evidence.

B. Exclusion of Expert Testimony.

Schmidt appeals the district court's order striking the designation of St. Louis Police Lieutenant Anthony Russo as an expert witness. Schmidt argues that Russo's testimony on police practices—including decisions to arrest, decisions to search for arrest warrants, evidence collection procedures, strip-search procedures, and general police policies—is admissible under Federal Rule of Evidence 702. Schmidt also contends that the district court improperly excluded Russo's testimony because he is not an academic.

The district court excluded Russo's testimony after concluding that it was not sufficiently relevant or reliable under the test articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which enunciates the role of the trial judge under Rule 702. Rule 702, which governs the introduction of expert testimony, states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The trial judge is first charged with determining whether the witness is qualified to offer expert testimony. D...