___________ 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. ARN OLD, 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 Annechin o brought a civil rights action, alleging that the officers violated their constitutional rights during a traffic stop. Ryan and Annechino argue tha t the district court ab used its discretion in permitting the testimony of a NewYork police officer regarding a later incident involving a simila r traffic stop and arrest of Ryan. They contend t hat they were not informed of the i ncident because of the defendants' failure to disclose th e inform ationin response to discovery requests, that the evidence wa s 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 wa s submitted.
On October 14, 1992, Ryan and Annech ino were travelling east through St. Louis along Interstate 44 in a Lincoln Continental with Arizona licens e plat es. Sergeant Ralph Harper pulled in behind the Ryan vehicle an d initiated a traffic stop. What happened next and the motive underlying th e stop were the central issues at trial.
Ryan re ceived a speeding ticket, and was later found not guilty o f 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 th e case was that they were stopped because their vehicle satisfied a dru g cou rier profile, and the St. Louis Metropolitan Police Department had a policy of stopping those vehicles conforming to the profile.
Ry anand Annechino testified that Sergeant Harper approached thei r car with his gun drawn. Shortly thereafter, oth er 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, an d emotional damages. In addition, Ryan testified that he was punched in the face, dragged from th e 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 pulle d them out from under h im. This caused Ryan to fall to the ground, hitting his head and shoulder on the pavement. Ryan later signed a consent t o sea rchform, and a drug dog was brought in to inspect the car. Afte r nothing was found, Ryan refused medical attention, received the speeding citation, and Ryan and Annechino proceeded on their way.

The o fficers and the Board zealously contested these allegations
. Sergeant Harper testified that when Ryan refused to comply with hi s instructions to show his hands, he called for backup and drew his weapon. Ryan refused to get o ut of the car, so the officers physically lifted him out of the car, leaned him over the trunk, and handcuffed him. Th e officers d enied throwing Annechino to the ground. In their view, th e situationwas 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 th at the officers' conduct during the stop violated their

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constitutional rights. As part of their discovery, Ryan and Annechin o asked the officers and the Board to produce:
All documents relating t o or evidencing each instance in which any Defendant or other police officer or agent of th e DEPARTMENT accessed the data bases of the police computers , inc luding but not limited to NCIC, MULES, REGIS and th e Missouri Department of R evenue 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 recal l when. Ryan and Annechino objected to this line of questioning
. During a bench conference, the following colloquy took place:

MR. FI TZGIBBON: [He has pleaded that his] wrists wer e injured in this particular incident in this case. Alm ost 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. Yo u know, I don't know where he's getting this information. W e sent out discovery reque sts and, you know, this is all ambush. THE COURT: Yeah. MR. FITZGIBBON: This is not ambush, Yo ur Honor, they had never asked this question. I asked him whether or not he had beenarrested 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 arreste d 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 ti ght with his wrist and his arms that they pulled him out of the car.

### -5- 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 inf ormation 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 CO URT: Okay. Now supposedly the plaintiffs ar e 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 fo r are all documents relating to or evidencing each instance i n which a ny defendant or other police officer or agent of th e department accessed the data bases of the police computers , includi ng but not limited to the NCIC, MULES, REJIS and th e Missouri Department of R evenue driver's records with regard to plaintif f Ryan or [] Annechino and that is how they got thi s information. They had somebody in the department acc ess those records, they found out that he w as arrested and then they're coming in wit hthis report when we've never been provided thos e documents. This is highly prejudicial and it is ir relevant and they're trying to cloud the issues in the case.

. . . .

### -6- 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 COU RT: . . . I think it is still pretty muc h discretionary with the C ourt. The city should have given that information to the plaintiffs.
Howeve r, it seems to the Court that the plaintiff i s co mplaining of continued wrist injury and emotional distres s out of an incident occurring here in this city and if that same thing happened subsequent, doesn't even tell his own counse l about it, I think that that would be proper to bring tha t forth.Just as to the -- he's claiming permanent injury to hi s wrist and --

. . . . THE COURT: I disapprove, I have to say, Mr. Fitzgibbon, of your not disclosing this information to the --
MR. FI TZGIBBON: Judge, if I may, the interrogatory -

- the req uest for production wants documents relating to o r evidencing each instance in which any defendant or other police off icer or agent accessed the data bases of the polic e computers.

. . . . MR. FI TZGIBBON: They want records of our accessing th e computer. THE COURT: Yes. MR. FI TZGIBBON: The answer to that was, "No suc h documentation exists as to accessing the computer" because you don't get a documentation of access. We

### -7- access the computer, yes , but there's no documentation of each instance.

. . . . MR. F ITZGIBBON: But Officers Majda and Noonan recal l calling in on their radio to determine whether or n ot plaintiff Mich ael 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 thei r acc ess, none whatsoever. They call up, they get th e information. There was no documentation as to the access and that's what they did whe n they picked these people up and they accessed the record. The int errogatory or the request for production is ver y unclear.

. . . . MR. FIT ZGIBBON: It's merely asking for a documentatio n of access, not the record itself.

. . . . MR. DA LTON: Well, a document that would evidence th e access would be a printout of his arrest record andwe 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 th e 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. FITZGIBB ON: You asked for a documentation of access to that.
THE CO URT: Well, there's a -- I'm going to let you d o it, Mr. Fitzgibbon.
Ryan t hen testified regarding the similar incident that occurred i n Rochester, New York.

### -8- As part of their case in chief, the defendants then called Office r John Z ampatori to describe the Rochester incident. Before Office r Zampator i took the stand, Ryan and Annechino again objected to th e testimony, stating:

MR. RYALS: The grounds for the objecti on are as follows: First, we had no notice of the existence of this officer, his testimo ny, and we specifically asked in discovery for an y inquiries pertaining to our client.
We be lieve, because of past experiences with the cit y coun selor's office, that they would have discovered th e incidents described by t his officer via an inquiry to the NCIC and my e xperience with these NCIC reports is that there is a printout generated. We were not provided a copy of tha t printout nor the report generated as a result of th is incident, so the first objection is based on surprise . . . .

The o fficers and the Board reiterated their position that there was n o documentation showing when officers accessed the computer.

Be fore Officer Zampatori began his testimony, the court instructe d the jury as follows:

THE COURT: Ladies and gentlemen, we're going to hear the testimonyof Officer John Zampatori from the Rochester Police Department, Rochester, New York Police Department. The ev idence that he will be testifying about will b e considered by you only f or the purpose of determining -- or on the issue of damages andinjuries sustained by the plaintiffs.
Officer Zampatori testified that he stopped Ryan in Rochester, Ne w 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 unde r arrest, but refused to exit his vehicle. Officer Zampatori the n testified:

### -9- We forcibly had to pull the driver out of the driver' s side of the pickup truck. As I went to pull the dr iver 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. H e resiste d the whole time as we were pulling him out, and w e broke the grip on the steering wheel.

. . . . . . . [T]he steering column was bent to wards the driver's door. He had a hold of the steering wheel with such grea t force that when we pulled him, wouldn't let go, andit bent the steering column.

. . . .

. . . [A]s we were pulling him out of the car, he too k his left hand, pushed it into my chest. He had his right hand throug hthe steering wheel and he had a hold of his New Yor k City driver's license. As his grip broke and he st arted coming out of the truck, he thr ew the New York state driver's license at me.
Officer Zampatori charged Ryan with obstructing governmenta l administration, resisting arrest, and failure to yield the right of way to a pedestrian.

At the conclusion of the evidence, the district court grante d judg ment as a matter of law in favor of the Board. Ryan and Annechin o voluntarily dismissedOfficer Krantz and Chief Harmon from the case. The jury returned a verdict in favor of each of the officers on all counts, an d the distr ict court entered judgment in their favor. The court als o 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 it s discretionin admitting evidence of Ryan's subsequent arrest because the officers and the Board failed to disclose the evidence during discovery, in spit e of a specific request designed to uncover this type o f inf ormation. In their brief Ryan and Annechino state: "From pas t experience, Plaintiff s' counsel had knowledge that defense counsel and/or the Defendant officers, who have access to national, state and local polic e computer data bases, run record checks on Plaintiffs and witnesses called by the P laintiffs . . . ." Thus, during discovery, Ryan and Annechin o asked the officers and the Board to produce:
All documents relating t o or evidencing each instance in which any Defendant or other police officer or agent of th e DEPARTMENT accessed the data bases of the police computers , inc luding but not limited to NCIC, MULES, REGIS and th e Missouri Department of R evenue driving records, with regard to Plaintiff RYAN or Plaintiff ANNECHINO.
The officers and the Board responded that "no su ch documentation exists as to accessing the computer." They later explained this response at trial bystating that "you don't get a documentation of access. We access the computer, yes, but there's no documentation of each instance." They now arg ue that this request does not ask for the results of accessing th e comput er, but for documentation of the individual instances of access
. They contend that the "failure to produce was en tirely proper, because the computer does not document instances of access."

Se veral significant facts are presented. First, the interrogator y sought documents "relating to or evidencing" the accessing of databases. In the colloquy surrounding the objection, counsel for the officers and th e Boar d stated unequivocally "I have the police report." However, th e officers and the Board argue that the police report was not evidence o f accessing the databases.

### -11- Without becoming enmeshed in semantic arguments on the meaning of the interrogatory, we concede that the police report may not be evidence of an indiv idual instance of access to the computer databases. On the othe r hand, it is most evident that the police report related to the accessing of the databases. We are satisfied that the response of the Cit y Counsellor's office w as only, in a most technical sense, partly true, and
we think it is abundantly evident that the interrogatory answer did no t disclose documents relating to the search of the databases. Counsel for the officers and the Board made it clear that he had obtained the Rocheste r police report from the database and that the defendants had accessed the
com puter "but there's no documentation of each instance." The distric t 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 t hem, and that the officers and the Board should have given tha t information to Ryan and Annechino. The court stated, " I disap prove, I have to say, Mr. Fitzgibbon, of your not disclosing thi s information . . . ." After this colloquy, counsel for the officers and th e Boa rd stated that Ryan's counsel was merely asking for documentation o f access, not the record itself.

We ar e convinced that the lengthy colloquy evidences an effort b y counsel for the officers and the Board to cloud the refusal to produc e documents relating to accessing the databases by stressing a hypertechnica l interpretationof the interrogatory and arguing that the question called only f or documents evidencing individual instances of access to th e databases. While we have the strongest respect for the learned district judge presiding over this trial, and give deference to his exercise o f discretion, we believe that the lengthy argument on this issue so becloude d and obfuscated the is sues 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 exami nation, Annechino, without objection, testified as follows: Q: [Y ]ou being pulled over was not an unusua l oc currence on this trip, you've been stopped onc e 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 t o this testimony at this point in the trial, but instea d waited until much later in an effort to use this testimony as the springboard for introducing the Rochester incident is tellin g. Had the Rochester arrest been disclosed as requested, it is unlikel y that Annechino would have been asked about the Colorado stop. On appeal, the officers and the Board argue that error was invited , ye t at the time of the claimed invitation counsel for Ryan an d Annechino had no knowledge of the facts material to the inquiry , which had been sought and not disclosed. While this testimony illustrat es the impact of the failure to disclose the Rochester arrest, the argument that Ryan and An nechino ope ned the door for testimony about the Rochester incident fail s for other reasons as well. "The `open the door' or `invited error' doctrine provide s that where a proponent introdu ces inadmissible evidence, a cour t may permit the opponent to introduce similarl y inadmissible evidence in rebuttal or engage in otherwise

imp roper cross-examination. A court may apply th e -12- The information on Ryan's later arrest would have been mos t significant to Ryan's counsel, considering the striking similarity of it to the arrest that ga ve rise to the trial. The adverse impact of Officer Zampat ori's testimony is evident. With knowledge of the Rocheste r incident, counsel for Ryan and Annechino would have had full knowledge of the c ircumstances surrounding the case before them. While we need no t specu late on what their actions might have been if given the requeste d informatio n, we are satisfied that what occurred was in fact trial b y ambush. 1

### `opening the door' doctrine in order to neutralize or

cure any prejudice incurred fr om the introduction of the evidence . . . ." United States v. Martinez , 988 F.2d 685, 702 (7th Cir.), cert . den ied , 510 U.S. 841 (1993). Annechino's direct testimony abou t the Colorado stop was irreleva nt and improper in this case. Thus, the officers and the Board nor mally would be allowed to rebut Ryan and Annechino's claim of peaceable behavior. However, the doctrine cannot apply here, as the district cou rt expressly instructed the jury about the purpose of the testimony. The court's limiting instruction plainly stated that Office r Zampatori's testimony was to b e considered only for the purpose of da mages. It said nothing about rebutting Annechino's previou s testimony. It is presumed tha t the jury follows its instructions. Ralston Purina Co. v. Parsons Feed & Farm Supply, Inc. , 364 F.2 d 57, 62 (8th Cir. 1966). The officers and the Board cannot ignore the limiting instruction and now argue that evidence was off ered to rebut Annechino's statement about the Colorado stop. -13- 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 informatio n regarding Ryan's Rochester arrest from counsel for Ryan and Annechino.

We belie ve that the request for production was clear and explicit , despite the defendants' contention to the contra ry. More importantly, any documen tationobtained from the databases and showing Ryan's crimina l reco rd or the Rochester arrest fell squarely within the scope of th e request.

The evidence regarding Ryan's Rochester arrest was a key componen t of the defense at trial. By waiting until trial to disclose thi s information, the officers and the Board hindered the efforts of counsel fo r Rya nand Annechino to effectively prepare their case and to effectivel y addres s the legal issues surrounding the admissibility of the evidence
. Further , the strategy adopted by the officers and the Board virtuall y assured that the district court would not be in a position to make a wellreasoned decision

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regarding the legal i ssues 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. Th e information requested in the interrogatory was r elevant to the case and it was not privileged. See Fed. R. Civ. P. 26(b)(1). Both Rules 33 and 34 provide th at a party may request information within the scope of Rul e 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 whic h
was incorrect when it was made. By not providing the requested polic e report , information that was well within the scope of permissibl e discovery, the officers and the Board encroached upon the principle o f liberal discovery under the Federal Rules.
In short, more than six months before the trial began, the officers and the Board possess ed information regarding Ryan's arrest in Rochester, New York. The officers and the Board gained thi s information by accessing the vari ous criminal record databases available to them. Ryan an d Annechino specificall y requested that this information be provided during disco very. The officers and the Board failed to provide the requeste d information, and this failure was extremely prej udicial to the preparation and presentation of Ryan and Annechino's case. Thus, we hold that th e district court abused its discretion in admitting evidence of Ryan's arres t in Roch ester, New York. Cf. Denton v. Mr. Swiss of Missouri, Inc. , 56 4 F.2d 236, 240 (8th Cir. 1977) (holding that dismissal is proper "wher e there has been a willful failure to answer interrogatories," especiall y whenthe "failure makes it impossible to determine the factual merits of a claim.").

This evi dence permeated the entire trial, a trial where the jury' s task was to decide what happened during the stop on October 14, 1992. Suc h a determination is necessarily dependent on the

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credibi lityof the witnesses. See Rush v. Smith , 56 F.3d 918, 921 (8t h Cir.) (en banc) (noti ng the "critical importance of the jury's assessment of witness credibility" in civil rights cases), cert. denied , 116 S. Ct. 409 (1995). The hear t of the case was whether the jury would believe the testimony of Ryan andAnnechino 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--thu s highlighting the significance of the resulting prejudice." Id.
We are deeply concerned that the con duct of counsel for the officers and the Board seemingly represents a pattern of conduct. In Rush , 56 F.3d at 9 19-20, this court considered a quite similar situation where th e plaintiff in a section 1983 action against St. Louis police officers and the Board requested p roduction of documents related to firearms training. After repeated attempts to obtain discovery, including a court orde r compelling productionof documents, the district court denied two motions for default judgment by the plaintiff during trial based on the defendants ' failure t o comply with the court's discovery orders. While we found i t unnecessary to reach the discovery issue on appeal, as the case was decide d on other grounds, we noted:

We are, however, dismayed . . . by the conduct of defendant s during pre-trial discove ry . . . . The defendants flouted not only our liberal discove ry 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 co nduct in Rush , except that Ryan and A nnechino were unable to seek relief from the district cour t duri ng the discovery process. The officers and the Board denied th e 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, t he conduct here is somewhat similar to that in Sanders-El , 987 F.2d at 484, wher e a member of the St. Louis City Counsellor's office
re presenting police officers in an excessive force case dramaticall y dropped a lengthy computer printout supposedly representing the plaintiff' s criminal record in front of the jury. We considered this to b e "intentionallyprejudicial 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, inappropriat e actions by counsel materially altered the course , and perhaps the outcome, of the trial.

We re verse the judgment in favor of the officers and the orde r requiring Ryan and Annechino to pay attorneys' fees in the case, and w e remand the case to the district court for a new trial. Since we remand th e case f or a new trial, we need not address each of the justification s offered by the officers and the Board for admitt ing the evidence of Ryan's subsequ ent arrest. The district court may consider on remand whethe r discovery sanctions are in order, and whether the evidence will be admitte d during the new trial.

II.
Ryan and Annechino argue that the district court erred in grantin g judgment as a matter of law in favor of the Boar d. 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 an d Annechino introduced sufficient evidence to create an issue of fact for th e jury. Id.

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Amere 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, persisten t patternof unconstitutional misconduct by th e governmental entity's employees; 2) Deliberate indifference to or tacit aut horization of such co nduct by the governmental entity's policymakin g officials after notice to the officials of tha t misconduct; and 3) That p laintiff was injured by acts pursuant to th e governmental entity's custom, i.e., that the custom wa s the moving force behind the constitutional violation.
Jane Doe "A" v. Special Sch. Dst. , 901 F.2d 642, 646 (8th Cir. 1990).
Ry anand Annechino introduced into evidence documents entitled St
. Louis Metropolitan Police Department Canine Specialty Search Report. Thes e report s documented canine searches along Interstate 44 during 1994 an d 1995. After carefully reviewing these documents and the testimon y regarding the use of drug courier profiles in the St. Louis Metropolitan Pol ice Department, we conclude that on this evidence no reasonable jur y could have found that a custom or practice of unconstitutionally stopping motori sts based on drug courier profiles existed within the department
. There was simply no evidence of a continuing, widespread, persisten t pattern of unconstitutional misconduct by officers of the Department
. Fur ther, Ryan and Annechino failed to demonstrate that the Board eithe r 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 lawin favor of the Board. Cf. Swink v. City of Pagedale , 810 F.2d 791, 795 (8th Cir.) (notin g 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 th e officers and remand for a new trial.
A true copy.

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