Butler v. City of Camden

• Decision Date: 18 December 2003
• Docket Number: No. 02-2903.,02-2903.
• Citation: 352 F.3d 811
• Court: U.S. Court of Appeals — Third Circuit
• Parties: Leonard BUTLER; Shirley Butler, H/W, Leonard Butler, Appellant v. CITY OF CAMDEN, CITY HALL; Township of Pennsauken; Township of Cherry Hill; Robert Allenbach, Police Chief, Camden Police Department; Galiazzi, Sergeant, Camden Police Department; Jeff Frett, Police Officer, Badge No. 133, Camden Police Department, Appellees.

352 F.3d 811

Leonard BUTLER; Shirley Butler, H/W, Leonard Butler, Appellant v. CITY OF CAMDEN, CITY HALL; Township of Pennsauken; Township of Cherry Hill; Robert Allenbach, Police Chief, Camden Police Department; Galiazzi, Sergeant, Camden Police Department; Jeff Frett, Police Officer, Badge No. 133, Camden Police Department, Appellees.

No. 02-2903.

United States Court of Appeals, Third Circuit.

Argued June 26, 2003.

Opinion Filed December 18, 2003.

Alan E. Denenberg, (argued), Abramson & Denenberg, P.C., Philadelphia, PA, for Appellant.

Jonathan E. Diego, Marc A. Riondino, (argued), Office of the City Attorney, Camden, NJ, for Appellees.

Before SLOVITER, AMBRO, Circuit Judges, and TUCKER,^* District Judge.

OPINION OF THE COURT

TUCKER, District Judge.

This is an appeal from a defense verdict following a jury trial. Appellant's complaint alleged violations of his constitutional rights resulting from excessive force allegedly used against him by police officers following an early morning high speed chase through Camden and Pennsauken, New Jersey. Prior to trial all defendants except Camden City Police Officer Jeffrey Frett were dismissed.¹ The jury was charged on two counts against Officer Frett, excessive force in violation of the Fourteenth and Fourth Amendments and bystander liability under the federal civil rights statute, 42 U.S.C. § 1983. Appellant has raised four assignments of error on this appeal.² Our disposition of this case requires that we only consider the first question, which asks whether the district court's conduct of the voir dire infringed upon Appellant's right to have his case decided by a fair and impartial jury.

I. BACKGROUND

A. Facts

The facts as developed at trial are as follows.³ On September 16, 1997, at approximately 1:00 a.m., Butler lead Camden City police officers on a 5-10 minute high speed chase. Butler did not stop until he reached Pennsauken, New Jersey, where he lived, stopping his car in the parking lot of the Liquor Ranch store. Butler claims he put his hands in the air at this point, a fact the defense disputed at trial. Thereafter Butler testified that two unknown officers approached his car with their guns drawn. Officer Frett, the third officer to approach, pulled Butler from the car and threw him face first to the ground. According to Butler, at this point Officer Frett and the two unknown officers proceeded to beat him for the next 3-5 minutes about the head and body while he was "handcuffed and offered no resistance." The beating is alleged to have continued until one of the unknown officers said "stop that's enough." Butler also testified that he heard another officer comment, "I didn't think he could take an ass kicking like that." Butler was then placed under arrest and charged with aggravated assault, resisting arrest and eluding arrest. Appellant's lawsuit claims that he suffered a variety of physical injuries and "severe" emotional trauma as a result of the alleged beating.

B. Voir Dire Examination

The trial judge conducted the questioning of the jury pool at voir dire. Following his initial examination, he called counsel to sidebar to determine whether they had any supplemental questions to be asked of the jury panel. Appellant's counsel requested that the district court propound the following four questions on the subject of law enforcement bias:

1. "Whether or not any members of the panel are more inclined to believe the testimony of a law enforcement officer over the testimony of a citizen." N.T. (3/4/02) at 40.

2. "Does anyone have any feelings either adverse or pro toward police in general." N.T. (3/4/02) at 41.

3. "Whether or not anyone was more inclined to feel force used by the Police Department was lawful simply because it was done during the course of an arrest?" N.T. (3/4/02) at 42.

4. "Whether or not any of the jurors have adverse feelings about individuals that lead police on pursuit." N.T. (3/4/02) at 45.

The trial judge denied the first request, stating, "Just put that in your requests to charge and I'll put that in the charge to the jury... I give it as a standard charge in all cases, anyway." N.T. (3/4/02) at 40. Regarding the second question, the following exchange took place between the court and counsel:

MR. DENENBERG [appellant's counsel]: Okay. I just thought it would be better to preempt that now, if anyone here had any feelings one way or another for or against police officers based on any experience that they had.

THE COURT: Well, I tried to elicit that, but no one on the panel has ever been arrested, no one on the panel has ever served for a Police Department, nor does anyone on the panel have anyone in their immediate family who's been with the Police Department, except for one individual, and none of them have been arrested, nor has any member of their immediate family been arrested.

MR. DENENBERG: Okay. I think my question is a little different with respect to — you know.

THE COURT: Well, I will deal with that in the charge. If you want me to, I'll charge — I give that charge, that they are to consider the testimony of all witnesses without regard to their occupations or whether they are members of the clergy or members of the Police Department.

MR. DENENBERG: My question is a little different, as well as the second question, does anyone have any feelings either adverse or pro toward police in general. It would work both ways, toward both the defendant and the plaintiff.

MR. DIEGO [defense counsel]: I don't have any problem with the question being asked, I think the information we're eliciting lends itself to that.

THE COURT: Well, I don't want to — my reluctance in asking that, I have no problem with giving a charge to that effect, my reluctance in asking it at this point is that no one on the panel so far has given me any indications that they've ever been arrested or that they believe or disbelieve a police officer or anybody else and I don't want to highlight that. But, I will give you a charge in the charge that they are to consider the testimony equally. I think that in asking that question at this point, in light of what the voir dire has revealed, is more prejudicial than helpful.

N.T. (3/4/02) at 40-42. The trial court rejected Appellant's request to propound the fourth question on a similar basis. N.T. (3/4/02) at 45 ("I think by asking that question I make it worse."). The court concluded the third question was inappropriate since it concerned a question of law that should be addressed in the jury charge. The court did not give the jury an instruction on the subject of law enforcement bias.

II. JURISDICTION

The district court had jurisdiction over Appellant's federal claims pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367. Our appellate jurisdiction over the district court's denial of Appellant's motions for post-trial relief and a new trial is derived from 28 U.S.C. § 1291. See Kirk v. Raymark Industries, Inc., 61 F.3d 147, 152 (3d Cir.1995).

III. DISCUSSION

A.

The issue we decide is whether the district court erred in denying Appellant's request to question the venire panel regarding potential law enforcement bias.⁴ The purpose of the voir dire is to both "enable[] the court to select an impartial jury and assist[ ] counsel in exercising peremptory challenges." Mu'Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). The trial court's duty to seat an impartial jury requires that it test prospective jurors for actual bias and strike for cause those persons "who will not be able to impartially follow the court's instructions." Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); United States v. Napoleone, 349 F.2d 350, 353 (3d Cir.1965) ("[t]he trial court, while impaneling a jury, `has a serious duty to determine the question of actual bias.'"). Since the trial judge "must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions," the trial judge is necessarily vested with broad discretion in determining the manner and scope of the questioning. Rosales-Lopez, 451 U.S. at 188-89, 101 S.Ct. 1629. This discretion is well established under federal case law, and an abuse of discretion will only be found where the district court's voir dire examination is "so general that it does not adequately probe the possibility of prejudice." Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir.1993) (citing United States v. Boise, 916 F.2d 497, 505 (9th Cir.1990)) (add'l citation omitted). See also United States v. Salamone, 800 F.2d 1216, 1226 (3d Cir.1986) ("[f]ailure to make the necessary inquiry deprives the trial court of the benefit of the factual predicate that justifies an exclusion for cause.").

It is well established as well that criminal and civil litigants have "the right to examine jurors on the voir dire as to the existence of a disqualifying state of mind" to allow for intelligent exercise of peremptory challenges. Napoleone, 349 F.2d at 353 (quoting Aldridge v. United States, 283 U.S. 308, 313, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)). Peremptory challenges, though not constitutionally mandated, Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (citations omitted), are recognized as a "necessary part of trial by jury" and their exercise may not be impermissibly infringed. Kiernan v. Van Schaik, 347 F.2d 775, 780 (3d Cir.1965) (citing Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 38 L.Ed. 208 (1894)). To facilitate informed use of peremptory strikes, a party may submit questions for the trial court to pose to the jury pool to "probe for the hidden prejudices of the jurors" that may not otherwise be discovered. Napoleone, 349 F.2d at 353 (citation omitted); Fed.R.Civ.P. 47(a) (providing that where the court conducts the voir dire examination, "the court... shall...