Rush v. Smith
| Decision Date | 05 June 1995 |
| Docket Number | No. 93-3585,93-3585 |
| Citation | 56 F.3d 918 |
| Parties | Timothy RUSH, Appellant, v. James SMITH, Silas Hardison, David Robbins, James Conway, Rita Krapf, Nesby Moore, Vincent Schoemehl, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Kenneth Dick, St. Louis, MO, argued for (Donald Singer, on the brief).
James J. Wilson, St. Louis, MO, argued for appellees (Ronnie L. White, on the brief).
Before RICHARD S. ARNOLD, Chief Judge, and McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, En Banc.
Timothy Rush appeals from a final order entered in the district court for the Eastern District of Missouri denying his post-trial motions for a new trial or default judgment in this civil rights action brought under 42 U.S.C. Sec. 1983. For reversal, Rush argues the trial judge erred in (1) dismissing the sole African-American juror, (2) making prejudicial comments to the jury, (3) denying his motions for new trial and default judgment based on defendants' abuse of discovery, and (4) denying his motion for new trial based on the grounds that the verdict was against the clear weight of the evidence. A panel of this court affirmed the judgment of the district court. This court subsequently granted rehearing en banc and vacated the panel's opinion. We now reverse and remand this case to the district court for a new trial.
Rush, who is African-American, filed this civil rights action claiming that two police officers used excessive force against him. After an eight-day trial, running from February 22 through March 3, 1993, a jury returned a verdict for defendants, St. Louis police officers and the St. Louis Board of Police Commissioners, on Rush's excessive force claim. Resolution of this matter required the jury to choose between two conflicting accounts of what happened during the early morning hours of January 1, 1990. Rush claimed that around the time of the incident, 12:37 a.m., he was in his home with his grandmother and his cousin. Meanwhile, a friend, Michael Mayhorn, was in Rush's backyard, celebrating the New Year by firing a shotgun into the air. Rush's grandmother asked Rush to tell Mayhorn to stop firing the shotgun and to come inside. Rush approached the kitchen door, wearing only pajama bottoms, to ask Mayhorn to cease firing the shotgun. Rush testified that while standing sideways, bent over between the storm door and the wooden door, and looking into the backyard, he was shot in the abdomen by one of the police officers. Immediately after being shot, Rush made his way to a telephone in the hallway of his home and called 911 for assistance. The testimony of Rush's grandmother and his cousin corroborated Rush's version of the facts.
The two police officers told a different story. They were dispatched to Rush's neighborhood in response to a report that shots had been fired. They claim that they were fired upon by a shotgun as they approached Rush's backyard. They saw two men standing below the steps at the rear of the home. At trial, neither officer could identify Rush as having been one of the two men. Both officers did testify that the man firing the shotgun was wearing pants and a shirt. Officer Smith claimed that 25 to 31 shotgun blasts were fired at them and that the officers returned 13 to 16 shots before notifying the dispatcher of the situation. Smith testified that after he fired two shots, his first target slumped over, handed the shotgun to the other man, and entered the house by climbing the rear steps.
Rush was indicted in connection with this incident on state charges of first degree assault, armed criminal action, and unlawful use of a weapon. However, these charges were later dropped. Robert Craddick, an assistant circuit attorney for the city, testified that he explained to Smith that the pattern of the bullet holes made by the officers' weapons and other physical evidence revealed inconsistencies in Smith's version of the incident. Upon hearing this explanation of the weaknesses in the case, Smith offered to change his account and even admitted that Rush could have been inside the house when shot. After the memorandum of nolle prosequi was submitted on all charges, Smith tried to convince Craddick to reinstate the charges because he feared that he would be sued if Rush was not prosecuted.
Before trial, Rush presented defendants with a discovery request for production of documents concerning prior firearms training provided to St. Louis police officers, including defendant Smith. Defendants responded that they had no documents concerning the annual firearms qualification program as it was when Smith graduated from the police academy or concerning changes in the program since that time; that Smith had not attended any in-service firearms courses other than annual qualifications since graduating from the academy because such courses did not exist; and that they objected to requests for all proposals or requests presented to the Board of Police Commissioners concerning the provision of firearms training to St. Louis police officers and for all complaints where it was alleged that a St. Louis police officer had misused firearms or wrongfully shot at an individual. Among documents produced by defendants was a Police Department Special Order providing for an administrative investigation and report (ARTS report) regarding every incident in which an officer discharges a firearm, an annual shots fired report, and establishing a firearms review committee.
Rush then presented defendants with a second discovery request for production of documents, requesting production of the ARTS report on the incident at issue, all ARTS reports prepared pursuant to the Special Order, all annual shots fired reports, and all firearms review committee reports and recommendations. Defendants objected to the requests for the ARTS reports and for the shots fired reports as burdensome.
Rush then filed a motion to compel discovery of the documents not produced by defendants, and on February 11, 1993, there was a hearing on the motion. After the hearing, the trial judge ordered defendants to produce any documents showing purchases of firearms training equipment, any documents regarding firearms training proposals rejected during the previous seven years, and any information regarding the use or misuse of firearms by police officers. In addition, the trial judge ordered the Board of Police Commissioners to designate competent witnesses for deposition on this subject. Defendants produced documents regarding the purchase of a firearms simulator, but no documents concerning a 1992 firearms study, no ARTS reports, and no other documents concerning the use of firearms. The Board of Police Commissioners provided a list of potential witnesses for deposition.
On the first day of trial, February 22, 1993, Rush moved for default judgment based on allegations that defendants failed to comply with discovery orders; the motion was denied. On the third day of trial, defendants provided Rush with documents constituting the underlying materials for a study concerning police use of firearms conducted by the police department in 1992. On February 25, Rush again moved for default judgment; again, the motion was denied.
On the fourth day of trial, there was a severe snowstorm in St. Louis, resulting in ten to fourteen inches of snow on the ground by morning. Dorothy Mae Bluett, the only African-American juror, advised the trial judge's staff that she would not appear that day due to the weather. Before the trial judge's arrival at the courthouse, Rush's counsel asked a United States marshal to pick Bluett up in his car. The marshal agreed, and was in fact en route, when the trial judge called him back because only a "skeleton staff" was present in the court building that day. When the trial judge arrived at court, he told Rush's counsel that he would continue the trial with the jurors present because he had an alternate to replace Bluett and that it was too late to try to get Bluett to attend. Rush's counsel asked the trial judge's permission to send a taxicab for Bluett, but the trial judge denied the request. In his order denying the motion for new trial, the judge indicated that he had problems with a party providing transportation for a juror.
After the trial judge concluded that the trial would proceed without Bluett, the jury was brought into the courtroom. The trial judge then explained her absence to the jury as follows:
Your eyeballs will indicate that your Juror Number Two is absent and we've previously discussed that, so we're going to proceed without her. Something just occurred to me, though, when I was being mildly scolded by the Plaintiff's attorneys for starting court late, that it was this Court's insistence that we have a black juror in this case, that put the black juror to the missing juror, Dorothy Mae Bluett in the box. I told all of you and I'm going to say this in front of the jury, it doesn't make any difference. It's a truth and I'm not afraid of the truth, but I was sincerely afraid of striking the only two blacks that were on that jury, that the Court of Appeals would look askance at anybody being able to single out a particular race and eliminating them from consideration of this jury, so I, and I'm gonna take credit for this, I'm sorry. I've got to, I've got to preserve the justice and pursuit of justice by this Court, prevailed upon the City to put at least one of those black ladies on this panel so that Mr. Rush would be at least represented ethnic-wise or race-wise. I just, I'm not a damn fool. I haven't been around here for seventy-six years and not found out that the races have a tendency to stick together and that may be good or bad, but whatever it is, it exists.
IV Trial Tr. at 19. After the trial judge completed his remarks to the jury, counsel...
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