Rush v. Smith
| Decision Date | 23 January 1995 |
| Docket Number | No. 93-3585,93-3585 |
| Citation | 45 F.3d 1197 |
| 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 |
Plaintiff who was shot by police officer brought Sec. 1983 action against police officers and city board of police commissioners alleging excessive force. Jury returned verdict for defendants. The United States District Court for the Eastern District of Missouri, William S. Bahn, J., denied plaintiff's motion for new trial, and plaintiff appealed. The Court of Appeals, Magill, Circuit Judge, held that: (1) dismissal of sole black juror, who could not come to court due to excessive snow, was not abuse of discretion; (2) trial judge's comments to jury regarding tendency of races to "stick together" was not plain error; (3) board's alleged failure to comply with discovery requests was harmless error because issue of board's liability was moot where jury found that individual officers did not violate constitution; and (4) jury's verdict was not against weight of evidence.
Affirmed.
Kenneth E. Dick, St. Louis, MO, argued (Donald S. Singer, on the brief), for appellant.
Jim Wilson, St. Louis, MO, argued, for appellee.
Before McMILLIAN and MAGILL, Circuit Judges, and BOGUE, * Senior District Judge.
Timothy Rush appeals the trial court's denial of his motions for a new trial and for default judgment in this civil rights action under 42 U.S.C. Sec. 1983. Rush argues that the trial court erred by dismissing the sole black juror, by making prejudicial comments to the jury, by denying his motions for a new trial and default judgment based on defendants' abuse of discovery, and by denying his motion for a new trial on grounds that the verdict was against the weight of the evidence. We affirm.
After an eight-day trial, running from February 22 through March 3, 1993, 1 a jury returned a verdict for defendants, St. Louis police officers and the St. Louis Board of Police Commissioners, in this excessive force claim. Timothy Rush appeals the trial court's denial of his motion for a new trial, arguing that the trial was prejudiced by the dismissal of the sole black juror and by the court's comments regarding that dismissal; that discovery abuses by defendants warranted a default judgment or new trial; and that the jury verdict was manifestly unjust and against the weight of the evidence.
On the fourth day of trial, February 25, there was a snowstorm in St. Louis resulting in ten to fourteen inches of snow on the ground by morning. Dorothy Bleuett, the only black juror, advised the trial court's staff that she would not appear that day due to the snow. Before the judge's arrival, plaintiff's counsel requested that a marshal pick Bleuett up in his car. The marshal agreed, but the judge indicated by telephone that the marshal was not to leave court, as only a "skeleton staff" was present that day. IV Trial Tr. at 7. When the judge arrived at court, he stated to counsel that the jurors present were the jurors who would sit, and that it was already late and "ample time to start this case." IV Trial Tr. at 7-8. Plaintiff's counsel requested permission to send a taxicab for Bleuett, but the judge denied the request on the grounds that party involvement in juror transportation was problematic, and that there was no guarantee that Bleuett would be willing to come to court even if a taxi were provided.
When the jury entered, the court explained Bleuett's absence to them:
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 judge completed his remarks to the jury, counsel approached the bench:
MR. DICK [Counsel for plaintiff]: ... I know the Court's intention is good, but I would just, I think what was said might give the impression that the City was the one who graciously put a black juror on.
THE COURT: I put the black juror on. I said, "I did it." I asked the attorneys to do it. I didn't say which one.
....
Before trial, plaintiff Rush presented defendants with a 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 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.
Plaintiff then presented defendants with a second request for production of documents, requesting production of the ARTS report on the incident at issue in the case, 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.
Plaintiff filed a motion to compel discovery of the documents not produced by defendants, and on February 11, there was a hearing on this motion. At the conclusion of the hearing, the court 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 court 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 provided a list of potential witnesses for deposition.
On the first day of trial, February 22, plaintiff argued a motion for default judgment based on allegations that defendants failed to comply with discovery orders; the motion was denied. On the third day of trial, February 24, defendants provided plaintiff with documents constituting the underlying materials for a study concerning police use of firearms conducted by the police department in 1992. That evening, plaintiff deposed the police department employee who delivered the documents. On February 25, plaintiff again raised a motion for default judgment; again, it was denied.
The facts of the incident from which this case arose were presented to the jury in the form of directly conflicting testimony by plaintiff's and defendants' witnesses. It is clear that plaintiff Rush was shot by St. Louis police officer Smith at approximately 12:30 a.m. on January 1, 1990, in or near his house. The circumstances surrounding the shooting, however, were presented differently to the jury by plaintiff and by defendants.
Plaintiff's witnesses testified that plaintiff Rush was in his house on the second floor, wearing only pajama bottoms, while Michael Mayhorn, a guest at the house, was in the backyard firing a shotgun in celebration of the new year. Rush's grandmother asked that Rush stop Mayhorn from firing further shots. Rush descended to the kitchen to do so and, while in the kitchen looking out through the screen door, was shot by Smith.
Defendants' witnesses testified that, responding to a call reporting shots in the area, officers Smith and Hardison approached the rear yard of the house and saw two figures in the yard, one of whom was firing a shotgun at them. After twelve to fourteen shots, Smith returned fire, firing a total of five shots. During this exchange, the figure with the gun, who was wearing blue pants and a dark shirt, passed it to the second figure, and entered the house. Two neighbors testified that they saw two figures in the yard. One neighbor, Pamela Rudderforth, testified that she saw one of the figures firing at two police officers who were behind a tree, and that one of the figures then slumped over and climbed up the back stairs into the house. Plaintiff's...
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