Moran v. Clarke, No. 00-1015.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Beam
• Citation: 296 F.3d 638
• Parties: 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 Third-kill; Jack Huelsmann; William Kusmec; William Swiderski; Richard Booker, Jr.; Terrence DuPree; Barry Greene; Steven Petty; Harvey Laux, Appellees.
• Docket Number: No. 00-1015.
• Decision Date: 05 July 2002

296 F.3d 638 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 Third-kill; 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, Eighth Circuit. Submitted: September 13, 2001. Filed: July 5, 2002.

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Eli Karsh, St. Louis, MO, argued, for appellant.

Priscilla F. Gunn, St. Louis, MO, argued, for appellee.

BEFORE: WOLLMAN,¹ Chief Judge, McMILLIAN, BOWMAN, BEAM, LOKEN, HANSEN,² MORRIS SHEPPARD ARNOLD, MURPHY, BYE, and RILEY, Circuit Judges.

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 violation of his substantive due process rights. After the plaintiff presented his case to a jury, the defendants made a motion for judgment as a matter of law, which motion the trial court granted. Moran now appeals the district court's adverse judgment, along with various evidentiary and discovery rulings and the district court's denial of his motion for recusal. This matter was previously heard and decided by a three-judge panel, Moran v. Clarke, 247 F.3d 799 (8th Cir.), vacated and reh'g granted by 258 F.3d 904 (8th Cir.2001), and now comes before the court sitting en banc. Once again, 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 certain of the evidentiary, discovery and recusal rulings.

I. BACKGROUND

This action represents the end product of a series of tragic events. Given the district court's disposition of this case, we state the facts in a light most favorable to Moran, assume the truth of his evidence, and draw all reasonable inferences in his favor. Otting v. J.C. Penney Co., 223 F.3d 704, 708 (8th Cir.2000).

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. 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. 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 emergency medical technicians Mark

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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 indicate that Moran did not arrive at the house until after Bell had been subdued. After Moran arrived on the scene, he entered the house and encountered Bell as he was being removed from the premises. 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. There is substantial evidence 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 publicly acknowledged that a mistake had been made and committed himself to punishing wrongdoers. 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 within the St. Louis Police Department 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 director, met with Officer Greene that 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 striking Bell. None of the participants asked Greene a single question. The record indicates that Greene gave two statements, the first of which did not implicate Moran, and which was not recorded.

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 Sergeants Thirdkill and Klein to speak with Dee Joyce-Hayes, Circuit Attorney for the City of St. Louis, to report Moran's alleged wrongdoing. Henderson did this despite the fact that at that time no statement of any other officer at the scene had implicated Moran.

In the wake of the beating, IAD had begun interviewing individuals 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 St. Louis officers in such a situation, facing potential criminal charges of their own, usually do not waive their rights. Booker testified that "[i]f I waive my rights, I feel basically I'm not being pursued criminally."

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. In these interrogations, IAD told the officers they were looking for "the truth." Curious about IAD's conduct, Richard Barry and Andrew Leonard, the attorneys representing the various officers, including Moran, inquired of Captain Nocchiero what IAD thought was "the truth." Nocchiero said that he could not

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answer the question, and then walked out of his office. He returned shortly, and ushered the two attorneys into Chief Henderson's office. Concerned with potential conflicts of interest, Barry asked Chief Henderson who he wanted. Chief Henderson stated, "I want the sergeant." Barry then asked, "which sergeant?" According to Barry, Henderson replied "the white sergeant." Barry and Leonard were certain that Henderson was focusing on 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 lose their jobs based on any inconsistencies with their first statements.

Among those interviewed was Officer Terrence DuPree. DuPree had been present at the Bell beating, and had afterwards corroborated Booker's report on the incident, purportedly encouraged to do so by Moran. When recalled for subsequent interviews, DuPree was working the "overlay" shift, which runs from 6:00 p.m. to 2:00 a.m. Almost every morning for a week, after finishing his shift, he was required to report to IAD, where he was left to sit without being interviewed by anyone, at times while his attorney spoke with Chief Henderson and IAD officers. Having seen Chief Henderson's statement to the media — which occurred prior to completing the investigation — Officer DuPree knew that the Department had committed itself to punishing a wrongdoer. In this regard, DuPree, who testified he had been at the scene, expressed concern to his wife regarding Chief Henderson's vow to punish wrongdoers. He further testified that this caused him personal concern. He also got the strong impression through the "rumor mill" that the Department was after Moran. DuPree again spoke with IAD on May 8, 1997. At trial, DuPree testified that on that date he enhanced his initial statement for fear of losing his job. In that May 8 statement, DuPree implicated Moran in striking Bell with his ASP baton, but also stated that Moran had not acted with improper or excessive force.

After receiving Officer DuPree's May 8th statement, Chief Henderson suspended Moran without pay. Moran was ultimately formally accused of having assaulted Bell by striking him 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 administrative 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. Moran was allowed to voluntarily surrender himself to the police department and was arrested. After booking, he was released.

The charges against Moran were assigned to Assistant Circuit Attorney Douglas Pribble. After reviewing the evidence, Pribble wrote a memorandum³ to Circuit Attorney Joyce-Hayes which detailed the inconsistencies between the various officers' statements, thoroughly discredited Greene's statements, and demonstrated how the evidence not only failed to build a case against Moran, but in fact tended to exonerate him. The prosecution proceeded, and Pribble subsequently left the circuit attorney's office.

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In May of 1998, a jury acquitted Moran of all criminal...