Wilson v. Cross, 87-1607

• Citation: 845 F.2d 163
• Decision Date: 20 April 1988
• Docket Number: No. 87-1607,87-1607
• Parties: Bruce WILSON d/b/a The Rink II, Appellant, v. Ken CROSS, Eddie Hightower, Donnie Smith, Jim Tanner, Robert McClaim, Bobby Foiles, and David Burns, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 163

845 F.2d 163

Bruce WILSON d/b/a The Rink II, Appellant, v. Ken CROSS, Eddie Hightower, Donnie Smith, Jim Tanner, Robert

McClaim, Bobby Foiles, and David Burns, Appellees.

No. 87-1607.

United States Court of Appeals,

Eighth Circuit.

Submitted March 15, 1988.

Decided April 20, 1988.

Christopher O. Parker, Little Rock, Ark., for appellant.

Francis D. Crumper, Jr., N. Little Rock, Ark., for appellees.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HARPER, ^* Senior District Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Bruce Wilson appeals from a final order entered by the district court ¹ on a jury verdict in favor of the defendants in this 42 U.S.C. Sec. 1983 case. We affirm.

I. BACKGROUND

This is the second time this case has been before a panel of this court. Our previous opinion contains a full statement of the facts leading up to this litigation. Wilson v. City of North Little Rock, 801 F.2d 316 (8th Cir.1986). To summarize briefly, this case resulted from a roadblock conducted by the North Little Rock Police Department outside a skating rink owned by Wilson.

For several years Wilson conducted a Wednesday night promotion called "soul night" at The Rink II in an effort to attract black customers. On August 4, 1982 the defendants, all officers of the North Little Rock Police Department, conducted a vehicle safety check just outside The Rink II. Wilson alleged that as a result of the roadblock he began losing black customers. Eventually "soul night" was terminated and The Rink II was closed on Wednesdays.

Wilson filed suit against the City of North Little Rock and the police officers involved in the roadblock alleging state law and federal constitutional violations. Specifically, Wilson alleged that the roadblock was conducted illegally in an attempt to end "soul night" and therefore constituted an unconstitutional taking of his property.

The first trial in this case resulted in directed verdicts in favor of all defendants on the Sec. 1983 claims. On appeal this court affirmed in part, reversed in part, and remanded for retrial of the Sec. 1983 claims against the individual defendants (appellees herein). The retrial resulted in a jury verdict in favor of the defendants. At issue in the present appeal are defense counsel's use of peremptory strikes to exclude blacks from the jury and a jury instruction on the elements of Wilson's constitutional claim.

II. DISCUSSION

Wilson argues that he was denied equal protection when the only two blacks in the jury pool were struck by defense counsel. Wilson bases his argument on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), wherein the Supreme Court held that in criminal trials peremptory strikes can not be used for racial reasons. Whether Batson applies to civil trials is a question of first impression in this circuit. ² While we have strong doubts about whether Batson was intended to limit the use of peremptory strikes in civil cases, the facts in the present case allow us to leave this difficult question for another day. An essential element of a claim for relief under Batson is that peremptory challenges have been used to remove from the venire members of the complaining party's race. Batson, 476 U.S. at 96, 106 S.Ct. at 1722-23. Wilson is white. The potential jurors are black. Assuming Batson applies, no prima facie case has been established.

Wilson's second argument on appeal involves the following jury instruction:

Now the plaintiff has alleged that he was deprived of his property by means motivated by discriminatory racial considerations. In order to prevail against any particular defendant, plaintiff must prove each of the following by a preponderance of the evidence:

1. That the race of plaintiff's customers was a substantial factor in motivating that defendant's conduct in connection with the road block or vehicle safety check;

2. That the defendant acted deliberately and purposefully, and with the intent to deprive plaintiff's customers of their constitutional right not to be singled out for discrimination on account of their race, or to deprive plaintiff of his constitutional right to serve black customers; and

3. That such acts of that defendant proximately caused damage or loss to the plaintiff's business.

Wilson argues that this instruction was erroneous because it required the jury to find an individualized intent to discriminate against his black customers on the part of a defendant before the defendant could be found liable. The police officers' individualized motives are irrelevant, argues Wilson. As long as an officer knew or should have known that the roadblock was motivated by racial considerations he should...