                                 ___________

                                 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
                                 ___________
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




                                     -2-
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




                                      -3-
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.




                                    -4-
              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.

              . . . .




                                       -5-
     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




                                 -6-
     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.




                                    -7-
       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:




                                         -8-
           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




                                    -9-
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.




                                       -10-
      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.




                                    -11-
     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


      1
      For example, the officers and the Board argue that Ryan and
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 otherwise-
     improper cross-examination.     A court may apply the

                                        -12-
      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 well-
reasoned decision




      `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.

                                   -13-
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




                                         -14-
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.




                                        -15-
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.




                                           -16-
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.




                                         -17-
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.




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