                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-3514
                                  ___________

Anthony and Louise Jones,                 *
                                          *
              Appellant,                  *
                                          * Appeal from the United States
              v.                          * District Court for the
                                          * Western District of Missouri.
James F. Ralls, Jr., Stacey Daniels,      *
Jeffrey J. Simon, Joseph J. Mulvihill and *
Emmanuel Cleaver II, in their official    *
capacities as members of the Board        *
of Police Commissionersof Kansas City, *
Missouri; Bradford Chirnside, Kurtis      *
Schmidt,                                  *
                                          *
              Appellees.                  *
                                     ___________

                            Submitted: June 16, 1999
                             Filed: August 19, 1999
                                  ___________

Before BOWMAN and HEANEY, Circuit Judges, and LONGSTAFF,1 District Judge.
                          ___________

RONALD E. LONGSTAFF, District Judge.




      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa, sitting by designation.
       Anthony Jones and his mother Louise appeal the district court’s2 judgment
and the jury’s verdict in their civil rights suit against two police officers and the
Board of Police Commissioners that oversaw the officers (“the Board”). On appeal
appellants argue several points in which the district court allegedly abused its
discretion. We affirm.


                                          I.


       On June 7, 1994, Kansas City, Missouri police officers Kurtis Schmidt and
Bradford Chirnside responded to a call reporting a person running in traffic while
slapping at cars. Upon the officers’ arrival at the scene, the reporting parties
complained that a black man wearing dark jeans and a light blue shirt had run in
front of their car, forcing them to stop. They also indicated the man had tried to
enter their car, saying “they were after him.”


       The officers searched the area, and observed a man fitting the description
running in the middle of a street. The officers pulled alongside the man, who was
eventually identified as appellant Anthony Jones. As the officers approached Jones,
he stopped and turned to face the car. Officer Schmidt observed that Jones was
sweating profusely and foaming at the mouth. The officers instructed Jones to place
his hands on the squad car, which he did. Jones then told the officers: “They’re
after me. They shot me in the back.” The officers found no sign of a gunshot
wound or any other type of injury on him.




      2
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

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       The officers observed that Jones appeared excited. When asked, Jones would
not answer several basic questions. He told the officers, “Let me in the car before
they find me,” and attempted to enter the squad car. At that moment, one of the
officers placed Jones’ hand back on the squad car. Jones then said, “Man, call the
police, they wanna kill me.” The officers made several attempts to inform Jones
that they were the police and that no one was going to kill him. Jones made a
second attempt to get in the squad car, saying that “they” would kill him again if he
did not leave the area.


        The officers decided to take Jones into protective custody because of his
inability to care for himself,3 and placed handcuffs on him. After being handcuffed,
Jones began to struggle with the officers. The officers placed him face down on the
pavement and Officer Schmidt applied a kneeling wristlock on the subject’s left arm
while Officer Chirnside called for a vehicle to transport Jones to an appropriate
facility. Jones continued to struggle against the wristlock, attempting to get up and
roll over. Officer Chirnside, wearing rubber gloves, replaced Officer Schmidt in the
wristlock position. Jones stopped struggling after two or three minutes. Officer
Chirnside released the kneeling wristlock and applied an ordinaryl wristlock to
control him. After he stopped struggling, Jones closed his eyes and continued to
mumble. When Jones stopped mumbling, one of the officers shook him to check on
his condition. He did not respond. Although his eyes were open, he appeared
barely conscious. The officers then rolled Jones into a seated position leaning
against the squad car rear bumper.



      3
      The determination was based on the officers’ observations: Jones was running
down the middle of the street, placing himself in danger from oncoming traffic; Jones
was experiencing hallucinations of being shot and chased; Jones’ physical appearance
(he was covered in sweat and foaming at the mouth); and Jones’ inability to
communicate logically with the officers.

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       The fire department responded to the officers’ request for emergency service
assistance. Jones remained seated on his own, with open eyes, and appeared to be
breathing normally. After approximately two minutes on the scene, fire department
personnel requested that the handcuffs be removed, because they were having
trouble finding a pulse on the subject. The handcuffs were removed and Jones was
laid prone on the ground. Fire department personnel performed CPR, and an
emergency service transported Jones to the hospital.


       At the hospital, medical personnel indicated Jones was in stable condition but
appeared to be under the influence of narcotics. He also had a blood alcohol level
of .108. He went into a coma at the hospital and remains in a vegetative state.
Jones and his mother filed a civil rights suit, pursuant to 42 U.S.C. § 1983, against
Officers Chirnside and Schmidt, as well as the members of the Board of Police
Commissioners of Kansas City (in their official capacities). The suit alleged
Officers Burns and Chirnside used excessive force and failed to attend to Jones’
medical needs, and the Board failed to adequately supervise and train the officers.
The complaint also included a state law claim against the officers.


       On April 29, 1998, a jury returned a verdict in favor of defendants on all
counts. The district court entered judgment on the verdict and denied all post-trial
motions. On appeal, Jones and Mrs. Jones allege the district court abused its
discretion in several of its rulings at trial, specifically: (1) permitting appellees’
presentation of a kneeling wristlock; (2) asking potential jurors one question about
substance abuse at voir dire; (3) dismissing a juror after the trial had begun when the
juror disclosed by a note to the judge that her sister worked at the hospital where
Jones was a patient; (4) excluding Jones from the courtroom and permitting the
officers to wear their standard police uniforms at trial; (5) restricting the reading of
certain deposition testimony of defendants Schmidt and Chirnside; (6) requiring the
deposition testimony of defendants Schmidt and Chirnside which had not been read

                                          -4-
into evidence to be blacked out before being introduced as exhibits and provided to
the jury; (7) permitting a defense expert to testify that a combination of cocaine and
alcohol caused plaintiff’s coma, although the expert did not know how much
cocaine was in Jones’ system; and (8) permitting Officer Chirnside to testify about
his observations and intentions regarding Jones. Appellants also argue the district
court erred in denying a motion to file a third amended complaint and to add new
defendants and thirteen new causes of action, and the aggregate effect of the district
court’s errors warrant reversal.


                                          II.


       We first address appellants’ argument that the district court improperly
permitted a courtroom presentation of the kneeling wristlock Officers Schmidt and
Chirnside used on Jones. Appellants characterize the kneeling wristlock
demonstration as “deliberately false and misleading,” argue appellees laid “no
foundation whatsoever” for the demonstration, and contend the prejudicial impact of
the “so-called ‘demonstration’” outweighed its probative value. Brief of Appellants,
at 21, 29-30. We review the district court’s evidentiary rulings for abuse of
discretion. See Goff v. Bise, 173 F.3d 1068, 1074 (8th Cir. 1999).


      At trial, appellees’ counsel informed the court of his plan to show the jury
how officers use the kneeling wristlock. Tr. 1586. The court asked for a
description of what would be presented, and counsel indicated “[w]e would have
him on the ground in handcuffs and all we would have the officer intend to come
and indicate how they held him [sic].” Tr. 1586-87. The court informed counsel
she would only permit the participants to show exactly what they did, to which
counsel replied, “We are not going to engage in some type of a fight or struggle. I
want them to show you how they knelt, how they did his hand and how they would


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go forward.” Tr. 1587. Although plaintiffs’ counsel objected, the court noted, “I
will permit you to explore in cross-examination differences between their
testimony.” Tr. 1589.


       Immediately prior to the presentation, Officer Schmidt demonstrated the
kneeling wristlock to the court, while the jury was excluded from the courtroom.
Tr. 1674. The court approved the presentation as it was performed to her. The
court and defendants’ counsel made clear the presentation would be limited to the
control tactic used after handcuffing, and would not involve a demonstration of the
handcuffing tactic. Although defendants’ sought permission to have Officer
Chirnside demonstrate the wristlock after Officer Schmidt did so, the court found
the duplicative presentation unnecessary. Tr. 1675-76.


        At the time of the presentation, the following exchange took place before the
jury:


        THE COURT: He is going to demonstrate what a kneeling wrist lock is
        according to him; is that correct?
        MR. CLOSE (counsel for defendants): Yes, Ma’am.
        THE COURT: So this is not a complete demonstration of the entire
        events?
        MR. CLOSE: No, ma’am, because we are not asking the witness to
        move or struggle in any way according to the testimony of the officers.
        We’re just establishing the wrist lock, itself.
        THE COURT: You may proceed.
        Q (by Mr. Close): Would you show the jury how you held Mr. Jones
        by the hand or arm, if you did?

                                          -6-
      A (Officer Schmidt): Just his left hand, I would have had cupped with
      my right hand, and would have had my other hand on his elbow.
      Q: Okay. Now, you are saying you would have. Is that how you had
      Mr. Jones on June 7, 1994?
      A: Yes. That’s how I performed all my wrist locks.
      Q: And you are in a position which basically it appears that you are on
      the balls of your feet; is that correct?
      A: Yes, I am. I am on the balls of my feet right now.
      Q: Is that how you were with Mr. Jones?
      A: Yes, sir, I was.
      Q: Is that how you held Mr. Jones to the ground?
      A: This is how I had him when he wasn’t combative.
      Q: If Mr. Jones got combative, would you demonstrate to the jury what
      you would have done?
      A: Mr. Jones becomes combative and tries to roll over or to get up or
      roll either way, all I could do is lean forward putting my right knee near
      his buttocks area and left knee on the shoulder region and I could keep
      him from rolling over. When he stops struggling, all I have to do is roll
      back and take my weight off.
      Q: Is that what you did with Mr. Jones?
      A: That is what I did with Mr. Jones.
Tr. 1706-07.


      The admissibility of experimental and demonstrative evidence “depends upon
a foundational showing of substantial similarity between the tests conducted and
what they purport to represent.” Kehm v. Proctor & Gamble Mfg. Co., 724 F.2d

                                         -7-
613, 624 (8th Cir. 1983); see also Ramseyer v. General Motors Corp., 417 F.2d 859,
864 (8th Cir. 1969). Appellants set forth thirteen discrepancies between the kneeling
wristlock demonstration before the jury and the June 7, 1994 events involving
Officers Schmidt and Chirnside and Anthony Jones.4

      4
          Plaintiffs state as discrepancies:

      (1) Mr. Jones is black man [sic]; Officer Cooley [the person receiving the
      kneeling wristlock in the courtroom] was white; (2) Mr. Jones is 5’ 8”
      tall; Officer Cooley is 6’ tall; (3) Mr. Jones weighed 140 pounds on June
      7th; Officer Cooley weighed 180; (4) Mr. Jones was dressed in a tee-shirt,
      jeans and tennis shoes; Officer Cooley was dressed in full uniform and
      wearing black boots; (5) both Defendants Chirnside and Schmidt testified
      in their depositions that during the time they were each “restraining” Mr.
      Jones, they had one knee between Mr. Jones’ shoulder blades and one
      knee above his buttocks, and at no time in the demonstration was that
      ever done; (6) both Defendants Chirnside and Schmidt testified in their
      depositions that they were in a single position, i.e., with one knee between
      Mr. Jones’ shoulder blades and one knee above Mr. Jones’ buttocks, for
      an uninterrupted period of time the length of which they themselves
      estimated, while the “demonstration” showed an intermittent or on-again-
      off-again use of one knee, but only on a shoulder; (7) Officer Schmidt
      testified in his deposition that he was in position, i.e., kneeling with one
      knee between Mr. Jones’ shoulder blades and one knee above Mr. Jones’
      buttocks for one to two minutes, while Officer Chirnside testified that he
      was in the same position for two to three minutes, but they were allowed
      to testify at trial that it was only one minute each, and to “demonstrate”
      for a period of approximately one minute; (8) in their depositions, Officers
      Chirnside and Schmidt testified that while Officer Schmidt was
      “restraining” Mr. Jones, Officer Chirnside was holding Mr. Jones’ legs
      up in the air, bent the knee for at least part of the time, whereas that did
      not occur in the “demonstration;” (9) Mr. Jones had been running or
      undergoing some sort of physical activity that left him breathless when he
      was first encountered by Defendants Chirnside and Schmidt and
      handcuffed, while Officer Cooley was breathing normally; (10) the
      “demonstration” took place on carpet, an obviously flexible or cushioned

                                               -8-
       We agree with appellants that the courtroom demonstration did not accurately
reflect the entire course of events involving the officers and Jones on June 7.
However, the presentation was not intended to reenact the June 7 events, and we
find appellants’ characterization of the demonstration misguided. The trial
transcript indicates the jury was notified immediately prior to the demonstration that
it was not a reenactment of the June 7 events; rather, its purpose was to inform and
show the jurors precisely how an officer would apply the technique. It is within
reason that such a demonstration would assist a jury of laypeople, unfamiliar with
law enforcement techniques, in understanding the kneeling wristlock technique. A
demonstration of the tactic would be particularly relevant in the instant case,
because the jurors ultimately had to consider whether the tactic, and the manner in
which it was applied, contributed to or caused Mr. Jones’ injuries.




      surface which subtly enhances the body’s ability to breathe because of
      that flexibility, while the actual event took place on concrete or asphalt,
      which obviously does not “give;” (11) the “demonstration was done by
      only one of the officers involved, Defendant Schmidt, whereas both
      [emphasis in original] officers sequentially knelt on Mr. Jones’ back
      according to their deposition testimony, and defense counsel elicited the
      express testimony of Defendant Schmidt that what he did in the
      demonstration was what Defendants Chirnside and Schmidt did on June
      7, 1994; (12) the “demonstration” was actually a purported reenactment
      of the events of June 7, 1994, rather than a good faith effort to visually
      show abstract principles; (13) the “demonstration” was done by
      Defendant Schmidt who is the smaller of the two officers, and it was
      Defendant Chirnside who was by his own deposition testimony on Mr.
      Jones longer than defendant Schmidt on June 7, 1994, and at the time
      Defendant Chirnside weighed 205 pounds–in comparison to Mr. Jones’
      140 pounds.

Brief of Appellants, at 24-26.

                                         -9-
      Appellants also overlook the fact that cross-examination afforded them the
opportunity to impeach Officer Schmidt’s representations about how he performed
the kneeling wristlock on Jones, and to draw out other differences in the courtroom
environment and the actual events of June 7, 1994. “Perfect identity between
experimental and actual conditions is neither attainable nor required....
Dissimilarities affect the weight of the evidence, not its admissibility.” Kehm, 724
F.2d at 624 (internal citations omitted).


      We find nothing unduly prejudicial about appellees’ kneeling wristlock
presentation., and conclude the district court did not abuse its discretion in
permitting the demonstration.


                                           III.


      We have carefully considered appellants’ remaining points of appeal. After
reviewing the record, we find no abuse of discretion in the district court’s rulings.
For the reasons stated above, we affirm the judgment of the district court.


A true copy.


      Attest:


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




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