UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NADINE Y. THIGPEN, individually and
as personal representative of the
Estate of Rahsaun Richardson also
known as Rahsaun Richardson,
Plaintiff-Appellant,

v.
                                                                       No. 96-1335
MARY SHIELDS, individually and as
an officer of the Prince George's
County Police Department; PRINCE
GEORGE'S COUNTY, MARYLAND;
DAVID B. MITCHELL, Chief,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-94-827-PJM)

Argued: March 7, 1997

Decided: April 11, 1997

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part and remanded in part by unpublished per curiam
opinion. Judge Williams wrote an opinion concurring in part and dis-
senting in part.

_________________________________________________________________

COUNSEL

ARGUED: Fred R. Joseph, JOSEPH, GREENWALD & LAAKE,
P.A., Greenbelt, Maryland, for Appellant. Jay Heyward Creech,
Upper Marlboro, Maryland, for Appellees. ON BRIEF: Sean D. Wal-
lace, Upper Marlboro, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The mother of a juvenile, whom a police officer fatally shot while
attempting to arrest him, brought this excessive force action against
the officer. A jury found for the police officer. The mother appeals,
challenging several evidentiary rulings, a jury instruction, and the dis-
trict court's denial of her Batson v. Kentucky , 476 U.S. 79 (1986),
challenge. We find no reversible error in the evidentiary determina-
tions or jury instruction but because we are unable to determine the
basis for the district court's Batson ruling, we remand for further pro-
ceedings with respect to that issue.

I.

In the early morning hours of February 25, 1991, Rahsaun Richard-
son and Melvin Berry stole a vehicle, drove to the Andrew Jackson
Middle School, entered the library, and began removing computer
equipment.

Their activity apparently tripped an internal alarm. In response, at
approximately 3 a.m., Cpl. Mary Shields, an officer of the Prince
George's County Police Department, and her police dog were dis-
patched to the school. Cpl. Shields twice announced her presence and
warned persons inside the school to surrender or the police dog would
be released to locate them. When there was no response, she released
the dog into the school and followed it.

Upon hearing the police arrive, Richardson and Berry ran to the
auditorium/cafeteria area and searched for a place to hide. The dog

                     2
initially led Cpl. Shields to the library and after securing that location,
she continued the search. In the auditorium/cafeteria area, the dog
indicated the scent of people and Cpl. Shields located and appre-
hended Richardson and Berry. Because Berry would not follow
instructions and appeared to be preparing to flee, the dog was placed
on him for restraint. Richardson's mother, Nadine Y. Thigpen, asserts
that the dog also attacked Richardson for no reason and that both boys
began to cry.

After this confrontation, Cpl. Shields directed Richardson and
Berry to walk toward the outside door through which they had entered
the building. They began walking together in front of her and the dog.
However, Richardson stopped, assertedly because he had been bitten
and was having difficulty walking. Cpl. Shields believed he was try-
ing to get behind her, which would have put her between the two sus-
pects where she might be overpowered. Accordingly, Cpl. Shields
ordered Richardson to keep moving; he did not comply. The officer
eventually ordered the dog to bite Richardson to prevent him from
moving behind her.

In response, Richardson threw the dog, by the neck, into a locker.
When Cpl. Shields checked on the dog, Richardson hit her on the
head. She tried to grab and control Richardson but he continued strik-
ing her on the head. She began to lose consciousness and next remem-
bered a flash and loud noise waking her. The flash and noise were her
gun discharging; she shot Richardson in the leg.

Richardson either grabbed or looked at his leg and then began to
swing towards the officer's head with a chain. Cpl. Shields backed up
and fired again at Richardson, this time hitting him in the upper back;
the second shot was fatal. Richardson slumped down backwards and
the officer called for assistance.

Ms. Thigpen, as personal representative for Richardson's estate and
in her own capacity, initiated this action against Cpl. Shields, Police
Chief David B. Mitchell, and Prince George's County. The complaint
alleged an excessive force civil rights claim pursuant to 42 U.S.C.
§ 1983 and various state law claims, and sought compensatory and
punitive damages. Following a bifurcated trial, the jury found for Cpl.

                     3
Shields on all counts; the district court entered judgment for all defen-
dants eleven days later. Ms. Thigpen appeals.

II.

Ms. Thigpen, an African-American, initially claims that the district
court erred in denying her Batson challenge. After Cpl. Shields struck
from the jury panel two African-American women and a man who
was not identified as from a cognizable racial group, Ms. Thigpen
protested on Batson grounds. At first, she claimed all three strikes
were of African-Americans, but the district court quickly clarified that
only two of the three struck jurors were African-Americans and then
noted that one African-American man had been seated with the jury
that had been selected.

Without assessing whether Ms. Thigpen had made a prima facie
case, the court immediately asked counsel for Cpl. Shields if he
wanted "to state any sort of reason for the strikes, of the two [they]
struck." The following colloquy ensued:

           [DEFENSE COUNSEL]: Your Honor, I'll state rea-
          sons, but I think that for two out of the three, I don't think
          they've stated what their prima facie. As to juror number
          1676 . . . Miss Shields indicated that she was staring at her
          the entire time.

           Additionally, I was concerned over the fact that, you
          know, she lived in the county, so that's the reason why we
          struck.

           THE COURT: She lived where?

           [DEFENSE COUNSEL]: The town of Camp Springs.
          Of course, in my mind, being from Prince George's County,
          they're exposed to much more negative publicity from both.

           THE COURT: What about the other people? You've
          got [a seated juror], who's also from the same town, Camp
          Springs.

                     4
          [DEFENSE COUNSEL]: But she wasn't staring at my
         client.

          THE COURT: What about the other?

          [DEFENSE COUNSEL]: Miss Meredith appeared to
         look throughout the course of the proceedings, only time
         I've seen her look up, she's looked right over to Miss Thig-
         pen during the course of this, and that is the basis that I
         struck her.

          It also appears she's approximately the age of Miss Thig-
         pen, and I feel there may be some identity there. . . .

          THE COURT: All right.

          [MS. THIGPEN'S COUNSEL]: Our position is that,
         number one, obviously, the fact that Miss Pipkin lives in the
         county is not an adequate basis, and it's contradicted by the
         other decision.

          To say that this individual was staring at his client, Miss
         Shields, I think is perhaps stretching Batson even beyond its
         limits.

          Karen Meredith, 1728, did not respond to any questions,
         to the best of my knowledge, and once to say that she
         looked over to the plaintiff's table, and [defense counsel]
         was concerned about bonding due to the same age, the num-
         ber of women that were selected are the same age, and I
         don't think that that's a valid basis for him to strike.

The court then ruled:

          THE COURT: Well, I don't think that there's a prima
         facie case here, because I think one African male has been
         seated, so although the reasons may be a bit extraneous as
         far as defendant is concerned, I don't think there's a prima
         facie case in any event.

                    5
           The reasons don't have to be too -- too rational, but I
          can't, prima facie is necessarily raised. I'm going to deny
          the motion.

The Batson analysis proceeds in three steps. First, the party chal-
lenging the strikes must establish a prima facie case of discriminatory
use of peremptory challenges by demonstrating that she "is a member
of a cognizable racial group, . . . and that the[opposing party] has
exercised peremptory challenges to remove from the venire members
of the defendant's race." United States v. Grandison, 885 F.2d 143,
145 (4th Cir. 1989), cert. denied, 495 U.S. 934 (1990) (quoting
Batson at 96). In determining whether a prima facie case has been
established, a court can consider all relevant circumstances including
but not limited to the pattern of strikes, and questions and statements
during voir dire. Id. at 146. Second, if the moving party establishes
a prima facie case, the striking party must provide non-discriminatory
bases for the challenged peremptory challenges. Id. Third, if the strik-
ing party states a non-discriminatory basis for its use of peremptories
then the moving party must provide proof of discriminatory selection
despite the neutral reasons advanced. Batson, 476 U.S. at 96-98.

We defer to the district court in the context of a Batson challenge
because it has observed the voir dire and the exercise of peremptory
strikes. Grandison, 885 F.2d at 146. Furthermore, we "will not exam-
ine whether the defendant has met his burden in establishing a prima
facie case where the prosecutor articulates [legitimate] reasons for
[the] strikes." United States v. McMillon, 14 F.3d 948, 952 (4th Cir.
1994) (citing United States v. Lane, 866 F.2d 103, 105 (4th Cir.
1989); United States v. Joe, 928 F.2d 99, 103 (4th Cir. 1991), cert.
denied, 502 U.S. 816 (1991)).

When the district court jumps immediately to the second step in the
Batson analysis -- ascertaining that the reasons for the strikes are
legitimate -- we will affirm if we agree that those reasons are ade-
quate. See McMillon, 14 F.3d at 953. Hence, the fact that here the dis-
trict court proceeded immediately to the second step, in and of itself,
provides no basis for remand or reversal. But in this case the court
never completed its analysis under the second step-- it never deter-
mined whether the reasons for the challenged strikes were legitimate.
Indeed, to the extent the district court assessed those reasons the court

                    6
indicated some doubt as to their legitimacy, noting"the reasons may
be a bit extraneous as far as defendant is concerned."

Accordingly, we can affirm on this record only if the record sup-
ports the district court's ultimate determination that Ms. Thigpen had
not established a prima facie case. Unfortunately, it does not. The
court's entire explanation for its ruling was: "I don't think that there's
a prima facie case here, because I think one African male has been
seated." Clearly "[t]he composition of the jury may be considered as
part of the total relevant circumstances upon which a determination
of discrimination in jury selection is made," however, just as clearly,
this factor "is not dispositive of that issue ." Joe, 928 F.2d at 103
(emphasis added); see also Grandison, 885 F.2d at 147. Yet the
record does not indicate any other basis for finding that Ms. Thigpen
failed to establish a prima facie case.

Accordingly, we simply cannot determine whether the district court
applied the correct legal analysis in determining that Ms. Thigpen had
not established a prima facie case. When an appellate court cannot
ascertain whether the trial judge "applied the proper legal analysis" in
its Batson ruling, the appropriate course is to remand "for further pro-
ceedings in order for the district court to clarify its ruling." Jones v.
Plaster, 57 F.3d 417, 421-422 (4th Cir. 1995) (remanding a Batson
challenge because we could not discern "whether the district court
applied the proper legal analysis in reaching its decision to overrule
[the moving party's] objection.")

As in Jones, we note that "this ruling need not be elaborate." 57
F.3d at 422. Rather, the district court need only articulate why it
found Ms. Thigpen had failed to establish a prima facie case.

III.

Ms. Thigpen's remaining arguments are meritless. Most are evi-
dentiary challenges. The district court's decision to admit or exclude
evidence is discretionary and will not be overturned unless it is "arbi-
trary or irrational." United States v. Powers , 59 F.3d 1460, 1464 (4th
Cir. 1995), cert. denied, 116 S. Ct. 784 (1996).

                     7
A.

The first evidentiary challenge is to the district court's decision to
exclude evidence of prior shootings by Cpl. Shields. Evidence of prior
bad acts, so long as it is relevant, is permitted for any purpose other
than to demonstrate the defendant's propensity to commit unlawful
acts. Id. However, even relevant evidence may be properly excluded
if the trial judge believes that "there is a genuine risk that the emo-
tions of the jury will be excited to irrational behavior, and that this
risk is disproportionate to the probative value of the offered evi-
dence." Id. at 1467 (quoting Masters , 622 F.2d 83, 87 (1983)). In the
instant case, the district court excluded the evidence concerning prior
shootings by Cpl. Shields, one of which resulted in a verdict in excess
of one million dollars against her, finding that even if marginally rele-
vant, this evidence was confusing and unnecessarily prejudicial.

Relying on Powers, Masters, and United States v. Percy, 765 F.2d
1199 (4th Cir. 1985), Ms. Thigpen maintains that this evidence should
have been admitted because it "complete[s] the story of the offense,"
Powers, 59 F.2d at 1466, or shows a pattern of bad acts. Percy, 765
F.2d at 1203. However, Powers and Masters involved several transac-
tions (firearms trading in Masters) or incidents (beatings in Powers)
that concern the same (or intricately related) parties or that, taken
together, comprise the res gestae of the act of which defendant was
accused. Thus, in those cases the questioned evidence did complete
the story of the offense. In contrast, here the shootings occurred years
apart from one another. Moreover, unlike Percy , there is no evidence
of any pattern, or indeed of any similarities between them.

At best, Ms. Thigpen has only demonstrated that the district court
would not have erred if it had admitted the evidence of prior shoot-
ings. She has utterly failed to demonstrate that the district court
abused its discretion in excluding this evidence.

B.

Ms. Thigpen argues that the district court erred in excluding photo-
graphs and medical records of Melvin Berry, her son's accomplice.
She relies primarily upon Schultz v. Butcher, 24 F.3d 626, 632 (4th
Cir. 1994), in which we held that excluding evidence of a captain's

                    8
drunkenness totally deprived a co-defendant from advancing a theory
that the drunkenness of the captain caused the accident.

Schultz involved evidence excluded at a bench trial. To the extent
it is relevant in determining whether evidence was properly excluded
as unfairly prejudicial at a jury trial, it is distinguishable. Here, in
contrast to Schultz, the district court did not exclude all evidence on
the subject. Rather, the court expressly allowed testimony about
Berry's injuries; it simply denied admission of the photographs and
records finding them "unfairly prejudicial" because their only purpose
was to "embellish" testimony. Thus, Ms. Thigpen, unlike the co-
defendant in Schultz, was not prevented from developing her theory
of the case. There was no error.

C.

Next, Ms. Thigpen claims that the district court erred in admitting
extrinsic evidence of Berry's prior inconsistent statements because
Berry conceded on cross examination that he had made the statements
and because these statements assertedly involve collateral matters.

For this argument, she principally relies on United States v. Ince,
21 F.3d 576 (4th Cir. 1994). In Ince, a prosecutor introduced a prior
inconsistent statement to impeach his own witness. We noted that
when the prosecution attempts to impeach its own witness, the "preju-
dicial impact often substantially outweighs its probative value for
impeachment purposes because the jury may ignore the judge's limit-
ing instructions and consider the `impeachment' testimony for sub-
stantive purposes." Id. at 581. We held that the prior inconsistent
statement was inadmissible because it had no impact upon the wit-
ness's credibility. Id.

Unlike the prosecutor in Ince, counsel for Cpl. Shields did not
attempt to impeach his own witness with the prior statement. More-
over, the district court found that portions of the statement greatly
affected the witness's credibility and therefore permitted those por-
tions -- and only those portions -- to be admitted into evidence. The
district court also offered to give the jury a limiting instruction on the
use of the written statement. Under these circumstances, there was no
abuse of discretion in admitting the statements.

                     9
D.

Ms. Thigpen asserts that the district court erred in admitting evi-
dence of the retirement of the police dog following this incident.

At trial, Ms. Thigpen proposed reading part of Cpl. Shields' depo-
sition to the jury. Specifically, she wanted to read a question posed
to Cpl. Shields in which the officer was asked if the dog was "injured
physically" and responded: "I don't think they found anything like a
broken bone or anything like that, but I think emotionally she suffered
a shot." Ms. Thigpen wanted to omit the follow-up question and
answer in which Cpl. Shields explained that the dog had been retired.
Ms. Thigpen argued that this information was irrelevant and would
cause the jury to feel sympathy for Cpl. Shields.

The court ruled that all of the questions were admissible. Following
this ruling, Ms. Thigpen suggested that the court entirely eliminate
questions about the dog's injuries. When the court responded that
because "[t]he three of them were mixing it up at some point, whether
. . . the dog was injured would be relevant." Ms. Thigpen agreed, but
again objected to the discussion about the dog's retirement.

Clearly, Ms. Thigpen considered the dog's injuries to be suspect
and wanted to introduce evidence to this effect. Her reason for prof-
fering Cpl. Shields' deposition statement, that the dog didn't have "a
broken bone or anything like that," was to call into question whether
the dog had actually been injured. For this reason, the follow-up ques-
tion about the dog's retirement was relevant, and the district court did
not err.

IV.

Finally, Ms. Thigpen claims that the district court erred in prohibit-
ing her from arguing an intentional deprivation of rights theory to the
jury. Evidence of either "reckless or callous disregard for the plain-
tiff's rights" or "intentional violations of federal law" is sufficient to
present a jury issue as to punitive damages in a§ 1983 action. Smith
v. Wade, 461 U.S. 30, 50 (1983). Therefore, the district court should
have permitted Ms. Thigpen to argue both standards to the jury.

                     10
Its failure to do so is harmless because the district court instructed
the jury on the lesser standard -- callous indifference -- thereby
eliminating any concern that requiring Ms. Thigpen to meet the
higher standard did not adequately vindicate the"legitimate interests
in punishing unlawful conduct and deterring its repetition." BMW of
North America, Inc. v. Gore, 116 S.Ct. 1589, 1595 (1996). See also
Smith, 461 U.S. at 54 (1983). Furthermore, the jury did not find Cpl.
Shields liable, thereby foreclosing it from awarding punitive damages
under any standard. See Gore, 116 S.Ct. at 1597-98.

V.

For all of these reasons, the judgment of the district court is

AFFIRMED IN PART AND REMANDED IN PART.

WILLIAMS, Circuit Judge, concurring in part and dissenting in part:

Although I concur in Sections I, III, IV, and V of the Majority's
opinion, I write separately to express my disagreement with Section
II. In my view, the district court quite clearly ruled that, in raising her
challenge under Batson v. Kentucky, 476 U.S. 79 (1986), Thigpen
failed to make out a prima facie case. Moreover, I agree with the dis-
trict court's conclusion. Shields used two of her three peremptory
strikes to remove black jurors, while one black juror -- who could
have been stricken with the final strike -- was seated. There is no
other evidence from the voir dire to support an inference of discrimi-
nation. It is true that the seating of one black juror "is not dispositive
of" the Batson challenge, United States v. Joe, 928 F.2d 99, 103 (4th
Cir. 1991), but here it strongly undercuts the already attenuated statis-
tical showing by Thigpen. In the absence of any evidence beyond
such a limited statistical argument, I would affirm the district court's
rejection of Thigpen's Batson challenge.

In any event, even assuming that Thigpen made out a prima facie
case, Shields has unquestionably discharged her burden to articulate
"legitimate" reasons for the strike. "The second step of [a Batson
inquiry] does not demand an explanation that is persuasive, or even
plausible." Purkett v. Elem, 115 S. Ct. 1769, 1771 (1995). Rather,

                     11
"`[a]t this [second] step of the inquiry, the issue is the facial validity
of the prosecutor's explanation. Unless a discriminatory intent is
inherent in the prosecutor's explanation, the reason offered will be
deemed race neutral.'" Id. (quoting Hernandez v. New York, 500 U.S.
352, 360 (1991) (plurality opinion)) (alteration in original). Therefore,
no matter how "extraneous," Shields' explanation is nonetheless valid
unless inherently discriminatory. Here, the offered reasons -- hinging
on each juror's conduct -- were not inherently discriminatory. I
therefore disagree with any suggestion that Shields did not satisfy her
burden during the second step of the Batson inquiry.

                     12
