Thomas Moran v. Anne-Marie Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 00-1015
___________

Thomas Moran, *
*
Appellant, *
*
v. *
*
Anne-Marie Clarke; Robert Haar; *
Wayman F. Smith, III; Jeffery Jamison; * Appeal from the United States
Clarence Harmon, comprising the * District Court for the Eastern
Board of Police Commissioners * District of Missouri.
of the City of St. Louis; Ronald *
Henderson; Paul M. Nocchiero; *
Gregory Hawkins: Al Klein; Willie *
Thirdkill; Jack Huelsmann; William *
Kusmec; William Swiderski; Richard *
Booker, Jr.; Terrence DuPree; Barry *
Greene; Steven Petty; Harvey Laux, *
*
Appellees. *
___________

Submitted: January 10, 2001

Filed: April 16, 2001 (Corrected 5/1/01)
___________

Before BEAM, MORRIS SHEPPARD ARNOLD, Circuit Judges, and DOTY, District
Judge.1
___________

1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
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 violations of his substantive due process
rights. He now appeals the district court's adverse grant of judgment as a matter of law,
along with various evidentiary and discovery rulings and the district court's denial of
his motion for recusal. 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 the
evidentiary, discovery and recusal rulings.

I.

This action represents the end product of a tragic series of events. 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.2 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,
whereupon 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
EMS attendants Mark Rauss and Larry Campbell. When the "officer in need of aid"
call came in, Moran immediately headed to the scene. Anticipating their own call,

2
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).

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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 show that Moran did not arrive at the house until
after Bell had been subdued. Moran alleges that after he arrived on the scene, he
entered the house and encountered Bell in the kitchen as he was being removed from
the house. 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. It is undisputed 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
apologized publicly and committed himself to finding and punishing the responsible
officers. 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 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 commander, met with Officer Greene that Saturday
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 beating Bell. None of the participants asked Greene a
single question. Greene later testified that in fact he gave two statements, the first of
which did not implicate Moran, and which was not recorded.

In the wake of the beating, IAD began interviewing all those 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 officers in such a situation, facing potential

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criminal charges of their own, usually do not waive their rights. Booker testified that
he would not have waived his Miranda rights had he not known at that point that he
was not a target of any criminal investigation.

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. Curious about IAD's conduct, Richard Barry and Andrew
Leonard, the attorneys representing the various officers, inquired of Captain Nocchiero
what IAD thought was "the truth." Nocchiero said that he could not answer the
question, and then walked out of his office. He returned shortly, and ushered the two
attorneys into Chief Henderson's office. In response to the same question, according
to Richard Barry, Chief Henderson became animated and stated, "I want the sergeant
. . . the white sergeant." Neither Barry nor Leonard had any doubt that Henderson
meant 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 be prosecuted for any inconsistencies with their first statements.

Among those interviewed was Officer T.J. DuPree. Officer DuPree had been
present at the Bell beating, and had afterwards corroborated Officer Booker's report on
the incident. That report contained several inaccuracies, including some relating to
Officer DuPree's conduct. In his initial interview, Officer DuPree stood by the report,
encouraged to do so by Moran. When recalled for a subsequent interview, DuPree was
working the night shift. Every morning for a week, after finishing his shift, he was
required to report to IAD, where he was left to sit without speaking to anyone. Having
seen Chief Henderson's statement to the media, Officer DuPree knew that the
Department had committed itself to punishing a wrongdoer. He also knew through the
"rumor mill" that the Department was after Moran. Knowing that in his first statement
he had corroborated Booker's inaccurate report, DuPree again spoke with IAD on May
8, 1997, heeded their repeated exhortations to give them "the truth" and implicated
Moran. He then immediately recanted that implication and restated that Moran had

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acted properly. At trial, DuPree testified he changed his statement and implicated
Moran for fear of losing his job.

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 two IAD investigators to speak with Dee Joyce-Hayes, the
Circuit Attorney for the City of St. Louis, to report Moran's alleged wrongdoing.
Henderson did this despite having the statements of fifteen other officers, none of
which implicated Moran. After receiving Officer DuPree's May 8th statement, Chief
Henderson suspended Moran without pay.

Moran was ultimately accused of having assaulted Bell by striking him about the
head 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 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.

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

In April of 1998, a jury acquitted Moran of all criminal charges. On May 22,
1998, the St. Louis Post-Dispatch reported that the Police Department had reached a
$250,000 settlement with the Bell family. The paper reported this to be the largest

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settlement ever paid by the Department. On May 18, 1998, one year after the Bureau
of Professional Standards had first filed its administrative charges against Moran, and
two weeks before his administrative hearing, a fourth charge of failure to properly
exercise his duties as a police sergeant was added against him. This additional charge
was also authorized by Major Hawkins and Chief Henderson.

Moran's administrative hearing occurred on June 4 and 5, 1998, and July 15, 16,
28, 29 and 31, 1998. At this hearing, numerous witnesses favorable to Moran who had
testified for him at his criminal trial asserted their Fifth Amendment privilege and
declined to testify. They did so because shortly before the hearing began they had been
informed that they were the targets of additional internal procedures. The hearing
officer ultimately recommended acquittal on the assault and excessive force charges.
However, he recommended sustaining the fourth charge on the grounds that Moran
directed Booker to file a false report regarding the Bell beating. The Board of Police
Commissioners accepted the first three recommendations. As to the fourth, however,
the Board sustained the charge, but on wholly different grounds. The Board concluded
that while it could not tell who beat Gregory Bell, or when or how, it was certain that
some beating occurred after Bell had been subdued. The Board further concluded that
Moran had been in charge. The Board therefore found Moran guilty of failure to
properly exercise his duties for failing to prevent the purported illegal beating. As
punishment, the Board suspended and demoted Moran. As provided under Missouri
law, Moran appealed this process to the Missouri Circuit Court for the City of St. Louis
which affirmed the Police Board's action.

In late 1998 and early 1999, the Department meted out suspensions of one to
three days to various officers for conduct related to the Bell beating, including failure
to report wrongdoing, failure to call in a canine unit, and improper performance of duty.
No officer, however, was ever punished for assaulting Bell.

Moran sued the defendants under 42 U.S.C. § 1983, alleging that they conspired
to and did violate his right to substantive due process under the Fourteenth Amendment.

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He also alleged a state law malicious prosecution claim. This litigation does not revisit
his innocence. Rather, it questions the investigation defendants initiated and continued
into his conduct that day, and the ensuing criminal and administrative prosecutions.

Prior to trial, Moran was denied various items of discovery under assertions of
privilege. Both prior to and at trial, the district court excluded various items of
evidence Moran sought to admit. After hearing Moran's case, the district court granted
defendants judgment as a matter of law. Moran now appeals these rulings. He also
appeals the district court judge's refusal to recuse himself after Moran discovered that
the district court judge enjoyed a social relationship with one of the named defendants.

II.

We start with the district court's disposition of this case. A district court may
grant judgment as a matter of law once a party has been fully heard on an issue if the
party has failed to establish any legally sufficient evidentiary basis for a reasonable jury
to find for the party on that issue. Fed. R. Civ. P. 50(a)(1). Such a ruling is appropriate
only "when all the evidence points one way and is susceptible of no reasonable
inferences sustaining the position of the non-moving party." Ehrhardt v. Penn Mut. Life
Ins. Co., 21 F.3d 266, 269 (8th Cir. 1994) (quotation omitted). We review a grant of
a judgment as a matter of law de novo. Heintzelman v. Runyon, 120 F.3d 143, 145
(8th Cir. 1997). In doing so we do not weigh the evidence, but draw all factual
inferences in favor of the nonmoving party. Lytle v. Household Mfg., Inc., 494 U.S.
545, 554 (1990).

Moran alleged the defendants conspired to and did violate his federally secured
rights in violation of 42 U.S.C. § 1983. The Fourteenth Amendment guarantees
"[s]ubstantive due process[, which] prevents the government from engaging in conduct
that shocks the conscience or interferes with rights implicit in the concept of ordered
liberty." Weiler v. Purkett, 137 F.3d 1047, 1051 (8th Cir.1998) (en banc). To that end,
the Fourteenth Amendment prohibits "conduct that is so outrageous that it shocks the

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conscience or otherwise offends 'judicial notions of fairness, [or is] offensive to human
dignity.'" Id. (quoting Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989))
(brackets in original). Moran also alleged a malicious prosecution claim, which arises
under Missouri law upon a showing that a defendant initiated or continued a
prosecution without probable cause. King v. Ryals, 981 S.W.2d 151, 154 (Mo. Ct.
App. 1998). The district court acted correctly only if, viewed in a light most favorable
to Moran, the evidence he introduced failed to create any legally sufficient evidentiary
basis for a reasonable jury to find for him on any of his claims. After a thorough
review of the record, we find the district court erred.3

Viewing the record in the appropriate light, we find Moran established a
plausible case for each of his contentions. Moran introduced evidence of a Department
that publicly and financially committed itself to producing a culprit for an alleged
wrongdoing before any such wrongdoing was actually established. He produced
evidence of violated procedures, of pressures placed on officers to corroborate the
Department's official line, and of a hasty condemnation of Moran himself. Moreover,
he established that at various times, certain defendants knew of evidence proving his
innocence. In short, drawing all inferences in his favor, a reasonable jury could
conclude that some or all of the defendants intentionally set Moran up as a scapegoat.

It may well be that learning of a brutal beating, Chief Henderson drew a
reasonable conclusion that wrongdoing had occurred, and that under the circumstances,
given Barry Greene's statement, and facing a "blue wall of silence," the Chief and IAD

3
The district court entertained only the briefest of oral arguments on the
defendants' motion before granting it. The district court apparently wrapped the
malicious prosecution claim and the section 1983 claim together, hearing argument only
as to the former, yet applying the same standard to both. In a one-page order, the
district court, without explanation, dismissed all of Moran's claims. As a matter of
procedure, the district court should have articulated grounds for this decision.
Dominium Mgmt. Servs. Inc. v. Nationwide Housing Group, 195 F.3d 358, 366 (8th
Cir. 1999).

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acted reasonably. It may also be that many of the operative decisions lay not in the
hands of the defendants but with the prosecuting attorney. Such questions, however,
along with whether the defendants' conduct was so wrongful as to shock the
conscience, and whether probable cause existed, depend on interpretation of the
evidence, the drawing of inferences and evaluations of witness credibility. These
remain the province of the jury. Accordingly, we remand for a new trial.

III.

We turn next to the recusal question. At her deposition, Board member Anne-
Marie Clarke disclosed that she and the district court judge know each other socially.
She admitted having known the judge for over twenty-one years. She testified that over
the years they had visited each others homes up to ten times each. Clarke also testified
that she, the district court judge, and her co-defendant Wayman Smith appeared at the
same social events. Given these discoveries, Moran made a motion for recusal, which
the district court denied without comment. Moran appeals this decision.

We commit the recusal decision to the sound discretion of the district court, and
review that decision only for abuse of discretion. In Re KPERS, 85 F.3d 1353, 1358
(8th Cir. 1996). A judge "shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." 28 U.S.C. § 455(a). This restriction is
intended to "promote public confidence in the integrity of the judicial process."
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). Whether a
judge actually has a bias, or actually knows of grounds requiring recusal is
irrelevant–section 455(a) sets an objective standard that does not require scienter. Id.
at 859-60. We have recast the question as "whether the judge's impartiality might
reasonably be questioned by the average person on the street who knows all the
relevant facts of a case." In Re KPERS, 85 F.3d at 1358.

By enacting section 455(a), Congress sought to eradicate not only actual but also
the appearance of impropriety in the federal judiciary. To that end, Congress permitted

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parties to waive objection, on the record, of any such conflict. 28 U.S.C. § 455(e).
Thus, where judges have fully disclosed potential conflicts, and have then retained their
mandate in a case, we have been solicitous of their discretion. In In Re KPERS, for
instance, the district court immediately informed the parties when a potential conflict
arose, and disqualified himself from a decision involving those parties. 85 F.3d at
1355. Moreover, knowing of potential conflicts, the parties passed up opportunities to
object. Id. at 1356. There, we affirmed the district court judge's refusal to recuse
himself.

It is true that "[a]n unfavorable judicial ruling . . . does not raise an inference of
bias or require the trial judge's recusal." Harris v. Missouri, 960 F.2d 738, 740 (8th
Cir. 1992) (declining to accept judge's refusal to accept a plea agreement as evidence
of bias); accord Holloway v. United States, 960 F.2d 1348, 1350-51 (8th Cir. 1992)
(holding that granting a reduced sentence to one but not another defendant, and being
friends with another judge who allegedly "harbored a bias" against defendant, were not
grounds for finding bias). However, the inquiry whether a reasonable person, knowing
all the relevant facts, would discern potential impropriety certainly warrants
consideration of a judge's course or pattern of rulings, and also of the judge's course of
conduct.

We are troubled by the record in this case. The district judge's appearances at
the same social events as Clarke and Smith brooks little mention. Judges, attorneys and
public officials will often share public appearances. This does little to create the
appearance of impropriety. The social relationship, however, is more serious. The
image of one sitting in judgment over a friend's affairs would likely cause the average
person in the street to pause. That the judge and Clarke enjoyed a friendship of
sufficient duration as to warrant reciprocal visits to one another's homes only
exacerbates the problem. We find particularly worrisome the district court's failure to
disclose this conflict himself, as permitted by section 455(e). Moreover, the record
suggests a fractious relationship between the district court and Moran's attorneys. We
do, however, have the utmost faith in the district court's ability to rule impartially, and

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have imposed on ourselves an obligation to reverse a district court only where we can
say with certainty that it has abused its discretion. Accordingly, rather than remand to
a different judge, we remand this question to the district court with the suggestion that
it revisit and more thoroughly consider and respond to Moran's recusal request.

IV.

Moran next appeals various evidentiary rulings. We review a district court's
evidentiary decisions for abuse of discretion. Radecki v. Joura, 177 F.3d 694, 696 (8th
Cir. 1999). In order to warrant that review, however, a party must properly preserve
an issue below with an offer of proof unless the evidence was excluded pursuant to a
motion in limine. Fed. R. Evid. 103(a). Additionally, an issue must be presented here
in a meaningfully developed manner. Bratton v. Roadway Package Sys., Inc., 77 F.3d
168, 173 n.1 (7th Cir. 1996).

Moran appeals different exclusions with varying degrees of specificity. Were
it not for our disposition of the first issue above, we would not likely reach many of his
more elliptical arguments. However, our remand for a new trial wipes the evidentiary
slate clean, and permits Moran to re-argue the admissibility of each item to the district
court. We therefore decline to take up each ruling separately.

We do note, though, for clarity on remand, that were we to reach Moran's
arguments we would likely find error with at least some of the district court's rulings.
The district court first excluded significant amounts of evidence on the basis that it
regarded whether Moran was actually innocent. We agree that evidence probative
solely for that purpose would be irrelevant to the questions of whether probable cause
existed for a prosecution and whether the defendants' conduct was shocking. However,
some of the evidence the district court excluded, for instance whether Chief Henderson
was ever aware of the 911 dispatcher tape recordings, seems probative both to prove
Moran's innocence and also to the questions at issue in this case. Such evidence should
be admitted.

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 The district court also excluded evidence on the grounds that it related solely to
the administrative charges brought against Moran and appealed by him to the Missouri
state courts. The district court ruled that evidence relating to those charges should be
excluded because those claims were res judicata. As we are remanding for a new trial,
the district court will also have an opportunity to revisit these rulings. We pause only
to note that whether a claim is res judicata does not dispose of the question of whether
evidence relating to that claim is relevant or irrelevant to other current claims.

V.

Moran also appeals the district court's refusal to order defendants to produce two
types of documents–IAD investigative reports and the minutes of closed Board
meetings. To protect the former, the defendants assert governmental and work product
privileges. As to the latter, they assert the attorney-client privilege. Moran asserts the
district court erred in sustaining these claims of privilege, or should at least have
undertaken an in camera review of the purportedly privileged documents.

We review a district court's discovery rulings for abuse of discretion. Bunting
v. Sea Ray, Inc., 99 F.3d 887, 890 (8th Cir. 1996). We will grant a new trial on the
basis of erroneous discovery errors only where the errors "amount to a gross abuse of
discretion resulting in fundamental unfairness." Id. Our review is thus both narrow and
deferential. Id. We similarly rely heavily on the district court's discretion in deciding
whether to conduct an in camera review. United States v. Phillips, 854 F.2d 273, 277
(7th Cir. 1988). Having reviewed the record, we cannot say that the district court
abused its discretion to such a degree as to warrant a new trial. However, we have
already determined that this matter should be remanded for a new trial on other
grounds. As with the evidentiary rulings discussed above, the district court will be able
to revisit these rulings upon Moran's motion. On appeal, however, Moran has not
stated a case sufficiently compelling to persuade us that the district court committed
error in not conducting an in camera review.

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 This matter is reversed and remanded to the district court for further proceedings
consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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