___________

No. 95-2626

___________

Michael Ryan; Laurel *

Annechino, *

*

 Plaintiffs - Appellants,*

*

v. *

*

*

Board of Police Commissioners, *

of The City of St. Louis; * 

David Robbins; James Conway; * 

Charles Mischeaux; Rita Knapf; * 

Freeman Bosley, Each in his or * 

her individual and respective *

capacities as a member of the * Appeal from the United States

St. Louis Board of Police * District Court for the

Commissioners; Clarence Harmon, * Eastern District of Missouri.

Individually and in his official*

capacity as Chief of Police of *

the St. Louis Metropolitan *

Police Department, *

*

 Defendants, *

*

Ralph Harper; Mark Murphy; *

Tom Noonan; Tom Majda, Jr., *

*

 Defendants - Appellees, *

*

Kevin Krantz, individually and *

in their official capacity as *

Police Officers and Employees *

of the St. Louis Metropolitan *

Police Department, *

*

 Defendant. *

___________

 Submitted: January 12, 1996

 Filed: September 24, 1996

___________
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Before RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON and BOWMAN, Circuit

Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Michael Ryan and Laurel Annechino appeal the district court's grant

of judgment as a matter of law in favor of the St. Louis Board of Police

Commissioners and an adverse jury verdict in favor of officers of the St.

Louis Metropolitan Police Department in their civil rights claim, 42 U.S.C.

§ 1983 (1994), against the officers and the Board. Ryan and Annechino

brought a civil rights action, alleging that the officers violated their

constitutional rights during a traffic stop. Ryan and Annechino argue that

the district court abused its discretion in permitting the testimony of a

New York police officer regarding a later incident involving a similar

traffic stop and arrest of Ryan. They contend that they were not informed

of the incident because of the defendants' failure to disclose the

information in response to discovery requests, that the evidence was

inadmissible character evidence, and that they did not open the door for

its admission. They also argue that the district court erred in granting

judgment as a matter of law in their claim against the Board. We affirm

the judgment in favor of the Board, but reverse and remand to the district

court for a new trial as to the officers against whom the case was

submitted.

On October 14, 1992, Ryan and Annechino were travelling east through

St. Louis along Interstate 44 in a Lincoln Continental with Arizona license

plates. Sergeant Ralph Harper pulled in behind the Ryan vehicle and

initiated a traffic stop. What happened next and the motive underlying the

stop were the central issues at trial.

Ryan received a speeding ticket, and was later found not guilty of

the charge. At trial, Ryan and Annechino argued that
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the speeding ticket was merely a pretext for the stop. Their theory of the

case was that they were stopped because their vehicle satisfied a drug

courier profile, and the St. Louis Metropolitan Police Department had a

policy of stopping those vehicles conforming to the profile.

Ryan and Annechino testified that Sergeant Harper approached their

car with his gun drawn. Shortly thereafter, other officers arrived at the

scene. Annechino claimed that she was thrown to the ground and handcuffed.

She testified that as a result she suffered abrasions, bruises, and

emotional damages. In addition, Ryan testified that he was punched in the

face, dragged from the car, thrown to the ground, kicked, placed against

the trunk of the car, and then handcuffed. After being handcuffed, both

Ryan and Annechino testified that officers grabbed Ryan's ankles and pulled

them out from under him. This caused Ryan to fall to the ground, hitting

his head and shoulder on the pavement. Ryan later signed a consent to

search form, and a drug dog was brought in to inspect the car. After

nothing was found, Ryan refused medical attention, received the speeding

citation, and Ryan and Annechino proceeded on their way.

The officers and the Board zealously contested these allegations.

Sergeant Harper testified that when Ryan refused to comply with his

instructions to show his hands, he called for backup and drew his weapon.

Ryan refused to get out of the car, so the officers physically lifted him

out of the car, leaned him over the trunk, and handcuffed him. The

officers denied throwing Annechino to the ground. In their view, the

situation was controlled, the canine search proved negative, they issued

Ryan a speeding citation, and Ryan and Annechino were released.

Ryan and Annechino brought this civil rights action alleging that the

officers' conduct during the stop violated their
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constitutional rights. As part of their discovery, Ryan and Annechino

asked the officers and the Board to produce:

All documents relating to or evidencing each instance in which

any Defendant or other police officer or agent of the

DEPARTMENT accessed the data bases of the police computers,

including but not limited to NCIC, MULES, REGIS and the

Missouri Department of Revenue driving records, with regard to

Plaintiff RYAN or Plaintiff ANNECHINO.

The officers and the Board answered the request by stating that "no such

documentation exists as to accessing the computer."

On cross-examination, Ryan was asked if he had been stopped by police

since the St. Louis incident. Ryan admitted that he had, but he did not

recall when. Ryan and Annechino objected to this line of questioning.

During a bench conference, the following colloquy took place:

MR. FITZGIBBON: [He has pleaded that his] wrists were

injured in this particular incident in this case.

Almost a year to the day after this incident in St.

Louis, he was arrested, and almost the same situation that we

have here. I have the police report.

MR. DALTON: Which has never been disclosed to us. You

know, I don't know where he's getting this information. We

sent out discovery requests and, you know, this is all ambush.

THE COURT: Yeah.

MR. FITZGIBBON: This is not ambush, Your Honor, they had

never asked this question. I asked him whether or not he had

been arrested and we went into that whole routine and he told

me when he had been arrested.

Now in this case here we found out that he was arrested

a year, almost a year to the day in Rochester; that he did the

same-type things in this arrest; that they had to pull him out

of the car; that he bent -- he was holding on so tight with his

wrist and his arms that they pulled him out of the car.
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THE COURT: You can ask him if that occurred.

. . . .

MR. DALTON: This is during the trial and he's springing

it on us.

. . . .

MR. DALTON: . . . [W]e sent them discovery requests and

asked for all arrest information concerning him and, you know,

we don't get this report, don't hear about it until during --

the trial is going on? I mean that --

THE COURT: Did they in fact ask for all the information

regarding the arrest?

. . . .

The court excused the jury from the courtroom, and the discussion resumed

as follows:

THE COURT: Okay. Now supposedly the plaintiffs are

saying they asked for that information.

MR. DALTON: Well --

THE COURT: And that you didn't disclose it to them. If

that's the fact --

MR. DALTON: Judge, one of the things that we asked for

are all documents relating to or evidencing each instance in

which any defendant or other police officer or agent of the

department accessed the data bases of the police computers,

including but not limited to the NCIC, MULES, REJIS and the

Missouri Department of Revenue driver's records with regard to

plaintiff Ryan or [] Annechino and that is how they got this

information.

They had somebody in the department access those records,

they found out that he was arrested and then they're coming in

with this report when we've never been provided those

documents. This is highly prejudicial and it is irrelevant and

they're trying to cloud the issues in the case.

. . . .
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THE COURT: Are you aware, are you aware of that?

MR. DALTON: I was not.

MR. RYALS: Absolutely not. Absolutely not.

THE COURT: The client had not disclosed that to you?

MR. DALTON: No.

MR. RYALS: No.

. . . .

THE COURT: . . . I think it is still pretty much

discretionary with the Court. The city should have given that

information to the plaintiffs.

However, it seems to the Court that the plaintiff is

complaining of continued wrist injury and emotional distress

out of an incident occurring here in this city and if that same

thing happened subsequent, doesn't even tell his own counsel

about it, I think that that would be proper to bring that

forth.

Just as to the -- he's claiming permanent injury to his

wrist and --

. . . .

THE COURT: I disapprove, I have to say, Mr. Fitzgibbon,

of your not disclosing this information to the --

MR. FITZGIBBON: Judge, if I may, the interrogatory --

the request for production wants documents relating to or

evidencing each instance in which any defendant or other police

officer or agent accessed the data bases of the police

computers.

. . . .

MR. FITZGIBBON: They want records of our accessing the

computer.

THE COURT: Yes.

MR. FITZGIBBON: The answer to that was, "No such

documentation exists as to accessing the computer" because you

don't get a documentation of access. We
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access the computer, yes, but there's no documentation of each

instance.

. . . .

MR. FITZGIBBON: But Officers Majda and Noonan recall

calling in on their radio to determine whether or not plaintiff

Michael Ryan was a wanted individual. They called in [on]

their radio. This is what we thought what they wanted.

At the time they called in on their radio, they accessed

REJIS, but there's no record of or documentation as to their

access, none whatsoever. They call up, they get the

information. There was no documentation as to the access and

that's what they did when they picked these people up and they

accessed the record.

The interrogatory or the request for production is very

unclear.

. . . .

MR. FITZGIBBON: It's merely asking for a documentation

of access, not the record itself.

. . . .

MR. DALTON: Well, a document that would evidence the

access would be a printout of his arrest record and we have had

cases before in which we know that people in their office run

a record check on our clients and look at them during the

trial, which is exactly what we wanted to get.

MR. FITZGIBBON: You should have asked for it.

MR. RYALS: We did ask for it.

MR. DALTON: We did.

MR. FITZGIBBON: You asked for a documentation of access

to that.

THE COURT: Well, there's a -- I'm going to let you do

it, Mr. Fitzgibbon.

Ryan then testified regarding the similar incident that occurred in

Rochester, New York.
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As part of their case in chief, the defendants then called Officer

John Zampatori to describe the Rochester incident. Before Officer

Zampatori took the stand, Ryan and Annechino again objected to the

testimony, stating:

MR. RYALS: The grounds for the objection are as follows:

First, we had no notice of the existence of this officer, his

testimony, and we specifically asked in discovery for any

inquiries pertaining to our client.

We believe, because of past experiences with the city

counselor's office, that they would have discovered the

incidents described by this officer via an inquiry to the NCIC

and my experience with these NCIC reports is that there is a

printout generated. We were not provided a copy of that

printout nor the report generated as a result of this incident,

so the first objection is based on surprise . . . .

The officers and the Board reiterated their position that there was no

documentation showing when officers accessed the computer.

Before Officer Zampatori began his testimony, the court instructed

the jury as follows:

THE COURT: Ladies and gentlemen, we're going to hear the

testimony of Officer John Zampatori from the Rochester Police

Department, Rochester, New York Police Department.

The evidence that he will be testifying about will be

considered by you only for the purpose of determining -- or on

the issue of damages and injuries sustained by the plaintiffs.

Officer Zampatori testified that he stopped Ryan in Rochester, New

York, after Ryan had nearly run into him. He testified that Ryan refused

to produce his driver's license and insurance card. Ryan was placed under

arrest, but refused to exit his vehicle. Officer Zampatori then

testified:
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We forcibly had to pull the driver out of the driver's

side of the pickup truck. As I went to pull the driver out, he

took his right arm and put it down through the steering wheel

and he anchored himself in the truck so we could not take him

out. We had to forcibly pull him out of the truck. He

resisted the whole time as we were pulling him out, and we

broke the grip on the steering wheel.

. . . .

. . . [T]he steering column was bent towards the driver's

door. He had a hold of the steering wheel with such great

force that when we pulled him, wouldn't let go, and it bent the

steering column.

. . . .

. . . [A]s we were pulling him out of the car, he took

his left hand, pushed it into my chest. He had his right hand

through the steering wheel and he had a hold of his New York

City driver's license. As his grip broke and he started coming

out of the truck, he threw the New York state driver's license

at me.

Officer Zampatori charged Ryan with obstructing governmental

administration, resisting arrest, and failure to yield the right of way to

a pedestrian.

At the conclusion of the evidence, the district court granted

judgment as a matter of law in favor of the Board. Ryan and Annechino

voluntarily dismissed Officer Krantz and Chief Harmon from the case. The

jury returned a verdict in favor of each of the officers on all counts, and

the district court entered judgment in their favor. The court also

assessed costs to the plaintiffs. Ryan and Annechino appeal.

I.

We review the district court's decision to admit evidence over a

party's objection for abuse of discretion. United States v. McMurray, 34

F.3d 1405, 1411 (8th Cir. 1994), cert. denied, 115
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S. Ct. 1164 (1995). Ryan and Annechino argue that the court abused its

discretion in admitting evidence of Ryan's subsequent arrest because the

officers and the Board failed to disclose the evidence during discovery,

in spite of a specific request designed to uncover this type of

information. In their brief Ryan and Annechino state: "From past

experience, Plaintiffs' counsel had knowledge that defense counsel and/or

the Defendant officers, who have access to national, state and local police

computer data bases, run record checks on Plaintiffs and witnesses called

by the Plaintiffs . . . ." Thus, during discovery, Ryan and Annechino

asked the officers and the Board to produce:

All documents relating to or evidencing each instance in which

any Defendant or other police officer or agent of the

DEPARTMENT accessed the data bases of the police computers,

including but not limited to NCIC, MULES, REGIS and the

Missouri Department of Revenue driving records, with regard to

Plaintiff RYAN or Plaintiff ANNECHINO.

The officers and the Board responded that "no such documentation exists as

to accessing the computer." They later explained this response at trial

by stating that "you don't get a documentation of access. We access the

computer, yes, but there's no documentation of each instance." They now

argue that this request does not ask for the results of accessing the

computer, but for documentation of the individual instances of access.

They contend that the "failure to produce was entirely proper, because the

computer does not document instances of access."

Several significant facts are presented. First, the interrogatory

sought documents "relating to or evidencing" the accessing of databases.

In the colloquy surrounding the objection, counsel for the officers and the

Board stated unequivocally "I have the police report." However, the

officers and the Board argue that the police report was not evidence of

accessing the databases.
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Without becoming enmeshed in semantic arguments on the meaning of the

interrogatory, we concede that the police report may not be evidence of an

individual instance of access to the computer databases. On the other

hand, it is most evident that the police report related to the accessing

of the databases. We are satisfied that the response of the City

Counsellor's office was only, in a most technical sense, partly true, and

we think it is abundantly evident that the interrogatory answer did not

disclose documents relating to the search of the databases. Counsel for

the officers and the Board made it clear that he had obtained the Rochester

police report from the database and that the defendants had accessed the

computer "but there's no documentation of each instance." The district

court made plain its displeasure with the situation. The district judge

commented on the fact that plaintiffs had asked for the information and it

wasn't disclosed to them, and that the officers and the Board should have

given that information to Ryan and Annechino. The court stated, "I

disapprove, I have to say, Mr. Fitzgibbon, of your not disclosing this

information . . . ." After this colloquy, counsel for the officers and the

Board stated that Ryan's counsel was merely asking for documentation of

access, not the record itself.

We are convinced that the lengthy colloquy evidences an effort by

counsel for the officers and the Board to cloud the refusal to produce

documents relating to accessing the databases by stressing a hypertechnical

interpretation of the interrogatory and arguing that the question called

only for documents evidencing individual instances of access to the

databases. While we have the strongest respect for the learned district

judge presiding over this trial, and give deference to his exercise of

discretion, we believe that the lengthy argument on this issue so beclouded

and obfuscated the issues with reference to the interrogatory answer that

an abuse of discretion resulted.
 For example, the officers and the Board argue that Ryan and 1

Annechino opened the door to admission of Officer Zampatori's

testimony regarding the Rochester incident. On direct examination,

Annechino, without objection, testified as follows:

Q: [Y]ou being pulled over was not an unusual

occurrence on this trip, you've been stopped once

before; is that right?

A: Uh-huh.

Q: Okay. And let go with no problem?

A: Right.

Q: All right. And that happened where?

A: Colorado I think.

The fact that counsel for the officers and the Board did not

object to this testimony at this point in the trial, but instead

waited until much later in an effort to use this testimony as the

springboard for introducing the Rochester incident is telling. Had

the Rochester arrest been disclosed as requested, it is unlikely

that Annechino would have been asked about the Colorado stop. On

appeal, the officers and the Board argue that error was invited,

yet at the time of the claimed invitation counsel for Ryan and

Annechino had no knowledge of the facts material to the inquiry,

which had been sought and not disclosed.

While this testimony illustrates the impact of the failure to

disclose the Rochester arrest, the argument that Ryan and Annechino

opened the door for testimony about the Rochester incident fails

for other reasons as well. 

"The `open the door' or `invited error' doctrine provides

that where a proponent introduces inadmissible evidence,

a court may permit the opponent to introduce similarly

inadmissible evidence in rebuttal or engage in otherwiseimproper cross-examination. A court may apply the

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The information on Ryan's later arrest would have been most

significant to Ryan's counsel, considering the striking similarity of it

to the arrest that gave rise to the trial. The adverse impact of Officer

Zampatori's testimony is evident. With knowledge of the Rochester

incident, counsel for Ryan and Annechino would have had full knowledge of

the circumstances surrounding the case before them. While we need not

speculate on what their actions might have been if given the requested

information, we are satisfied that what occurred was in fact trial by

ambush.1
`opening the door' doctrine in order to neutralize or

cure any prejudice incurred from the introduction of the

evidence . . . ."

United States v. Martinez, 988 F.2d 685, 702 (7th Cir.), cert.

denied, 510 U.S. 841 (1993). Annechino's direct testimony about

the Colorado stop was irrelevant and improper in this case. Thus,

the officers and the Board normally would be allowed to rebut Ryan

and Annechino's claim of peaceable behavior.

However, the doctrine cannot apply here, as the district court

expressly instructed the jury about the purpose of the testimony.

The court's limiting instruction plainly stated that Officer

Zampatori's testimony was to be considered only for the purpose of

damages. It said nothing about rebutting Annechino's previous

testimony. It is presumed that the jury follows its instructions.

Ralston Purina Co. v. Parsons Feed & Farm Supply, Inc., 364 F.2d

57, 62 (8th Cir. 1966). The officers and the Board cannot ignore

the limiting instruction and now argue that evidence was offered to

rebut Annechino's statement about the Colorado stop.

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We do not countenance Ryan's failure to inform his counsel about the

later similar incident. However, the record before us demonstrates that

the officers and the Board made every effort to not produce information

regarding Ryan's Rochester arrest from counsel for Ryan and Annechino.

We believe that the request for production was clear and explicit,

despite the defendants' contention to the contrary. More importantly, any

documentation obtained from the databases and showing Ryan's criminal

record or the Rochester arrest fell squarely within the scope of the

request.

The evidence regarding Ryan's Rochester arrest was a key component

of the defense at trial. By waiting until trial to disclose this

information, the officers and the Board hindered the efforts of counsel for

Ryan and Annechino to effectively prepare their case and to effectively

address the legal issues surrounding the admissibility of the evidence.

Further, the strategy adopted by the officers and the Board virtually

assured that the district court would not be in a position to make a wellreasoned decision
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regarding the legal issues surrounding the admissibility of the evidence.

Further, it is evident that the actions of counsel for the officers

and the Board violated the Federal Rules of Civil Procedure. The

information requested in the interrogatory was relevant to the case and it

was not privileged. See Fed. R. Civ. P. 26(b)(1). Both Rules 33 and 34

provide that a party may request information within the scope of Rule

26(b). See Fed. R. Civ. P. 33(c), 34(a). In addition, both the old and

the new versions of Rule 26(e)(2) require a party to amend a response which

was incorrect when it was made. By not providing the requested police

report, information that was well within the scope of permissible

discovery, the officers and the Board encroached upon the principle of

liberal discovery under the Federal Rules.

In short, more than six months before the trial began, the officers

and the Board possessed information regarding Ryan's arrest in Rochester,

New York. The officers and the Board gained this information by accessing

the various criminal record databases available to them. Ryan and

Annechino specifically requested that this information be provided during

discovery. The officers and the Board failed to provide the requested

information, and this failure was extremely prejudicial to the preparation

and presentation of Ryan and Annechino's case. Thus, we hold that the

district court abused its discretion in admitting evidence of Ryan's arrest

in Rochester, New York. Cf. Denton v. Mr. Swiss of Missouri, Inc., 564

F.2d 236, 240 (8th Cir. 1977) (holding that dismissal is proper "where

there has been a willful failure to answer interrogatories," especially

when the "failure makes it impossible to determine the factual merits of

a claim.").

This evidence permeated the entire trial, a trial where the jury's

task was to decide what happened during the stop on October 14, 1992. Such

a determination is necessarily dependent on the
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credibility of the witnesses. See Rush v. Smith, 56 F.3d 918, 921 (8th

Cir.) (en banc) (noting the "critical importance of the jury's assessment

of witness credibility" in civil rights cases), cert. denied, 116 S. Ct.

409 (1995). The heart of the case was whether the jury would believe the

testimony of Ryan and Annechino or that of the police. See Sanders-El v.

Wencewicz, 987 F.2d 483, 485 (8th Cir. 1993). "Such a case, of necessity,

brings the credibility of the witnesses sharply into focus--thus

highlighting the significance of the resulting prejudice." Id.

We are deeply concerned that the conduct of counsel for the officers

and the Board seemingly represents a pattern of conduct. In Rush, 56 F.3d

at 919-20, this court considered a quite similar situation where the

plaintiff in a section 1983 action against St. Louis police officers and

the Board requested production of documents related to firearms training.

After repeated attempts to obtain discovery, including a court order

compelling production of documents, the district court denied two motions

for default judgment by the plaintiff during trial based on the defendants'

failure to comply with the court's discovery orders. While we found it

unnecessary to reach the discovery issue on appeal, as the case was decided

on other grounds, we noted:

We are, however, dismayed . . . by the conduct of defendants

during pre-trial discovery . . . . The defendants flouted not

only our liberal discovery rules but also the district court's

order compelling production of documents. There is no excuse

for such obstructionist tactics.

Id. at 921 n.1. The conduct here mirrors the conduct in Rush, except that

Ryan and Annechino were unable to seek relief from the district court

during the discovery process. The officers and the Board denied the

existence of the information sought, thus preventing any sort of hearing

on a motion to compel production. 
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Instead, Ryan and Annechino were surprised at trial by the very evidence

they requested during discovery.

Indeed, the conduct here is somewhat similar to that in Sanders-El,

987 F.2d at 484, where a member of the St. Louis City Counsellor's office

representing police officers in an excessive force case dramatically

dropped a lengthy computer printout supposedly representing the plaintiff's

criminal record in front of the jury. We considered this to be

"intentionally prejudicial conduct of defense counsel," and reversed the

judgment in favor of the defense. Id. In the case before us, it was not

a dramatic demonstration before the jury that was involved, but rather a

failure to disclose that which was requested and required by the Federal

Rules of Civil Procedure to be produced. In both cases, inappropriate

actions by counsel materially altered the course, and perhaps the outcome,

of the trial.

We reverse the judgment in favor of the officers and the order

requiring Ryan and Annechino to pay attorneys' fees in the case, and we

remand the case to the district court for a new trial. Since we remand the

case for a new trial, we need not address each of the justifications

offered by the officers and the Board for admitting the evidence of Ryan's

subsequent arrest. The district court may consider on remand whether

discovery sanctions are in order, and whether the evidence will be admitted

during the new trial.

II.

Ryan and Annechino argue that the district court erred in granting

judgment as a matter of law in favor of the Board. We review the entry of

judgment as a matter of law de novo. Johnson v. Cowell Steel Structures,

Inc., 991 F.2d 474, 478 (8th Cir. 1993). We must determine if Ryan and

Annechino introduced sufficient evidence to create an issue of fact for the

jury. Id.
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A mere scintilla of evidence is insufficient. Larson v. Miller, 76 F.3d

1446, 1452 (8th Cir. 1996) (en banc). "[J]udgment as a matter of law is

proper when the record contains no proof beyond speculation to support the

verdict." Id. 

In order to establish that the Board supported a custom or practice

of unconstitutionally stopping cars based on a drug courier profile, Ryan

and Annechino were required to show:

1) The existence of a continuing, widespread, persistent

pattern of unconstitutional misconduct by the

governmental entity's employees;

2) Deliberate indifference to or tacit authorization of such

conduct by the governmental entity's policymaking

officials after notice to the officials of that

misconduct; and

3) That plaintiff was injured by acts pursuant to the

governmental entity's custom, i.e., that the custom was

the moving force behind the constitutional violation.

Jane Doe "A" v. Special Sch. Dst., 901 F.2d 642, 646 (8th Cir. 1990).

Ryan and Annechino introduced into evidence documents entitled St.

Louis Metropolitan Police Department Canine Specialty Search Report. These

reports documented canine searches along Interstate 44 during 1994 and

1995. After carefully reviewing these documents and the testimony

regarding the use of drug courier profiles in the St. Louis Metropolitan

Police Department, we conclude that on this evidence no reasonable jury

could have found that a custom or practice of unconstitutionally stopping

motorists based on drug courier profiles existed within the department.

There was simply no evidence of a continuing, widespread, persistent

pattern of unconstitutional misconduct by officers of the Department.

Further, Ryan and Annechino failed to demonstrate that the Board either

authorized or remained indifferent to such a practice. 
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Thus, the district court did not err in granting judgment as a matter of

law in favor of the Board. Cf. Swink v. City of Pagedale, 810 F.2d 791,

795 (8th Cir.) (noting that the plaintiff "presented no evidentiary basis

for holding the City liable for a random act of police brutality"), cert.

denied, 483 U.S. 1025 (1987).

III.

In conclusion, we affirm the judgment in favor of the St. Louis Board

of Police Commissioners. We reverse the judgment and costs in favor of the

officers and remand for a new trial.

A true copy.

Attest:

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