Fludd v. Dykes

Decision Date17 January 1989
Docket NumberNo. 87-8244,87-8244
Citation863 F.2d 822
PartiesWillie Albert FLUDD, Plaintiff-Appellant, v. J.B. DYKES, Sheriff of Richmond County, Georgia and Frank Tiller, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

John P. Batson, Augusta, Ga., for plaintiff-appellant.

Robert C. Daniel, Jr., and James W. Ellison, Burnside, Wall & Daniel, Augusta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before TJOFLAT and EDMONDSON, Circuit Judges, and WISDOM *, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

During the selection of the jury in this civil rights suit, brought by a black citizen against a police officer and his supervisor, both of whom are white, the defendants peremptorily challenged the two black persons on the venire; as a result, an all-white jury was chosen to try the case. Plaintiff's counsel objected to these challenges on the ground that they were racially motivated and, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), argued that defense counsel had to give a racially neutral explanation for their action or abandon the challenges. The court overruled the objection, holding that Batson, which involved a criminal prosecution, has no application in civil cases. The jury subsequently returned a defense verdict, 1 and the plaintiff, hereafter the appellant, took this appeal.

We hold that Batson v. Kentucky applies in civil as well as criminal cases. The district court thus erred in refusing to consider Batson's mandate. We remand the case, as Batson requires, so that the district court can determine whether the appellees' attorney challenged the two black jurors because they were black or for some nonracially discriminatory reason.


This case arose out of a police-citizen encounter: the appellant was shot by a deputy sheriff of Richmond County, Georgia, while the deputy was attempting to take a suspected narcotics trafficker into custody. The appellant contended that the officer's conduct, in shooting him, constituted an unreasonable seizure and, also, a denial of substantive due process, in violation of the fourth and fourteenth amendments to the United States Constitution, 2 and he sought money damages against the officer and his supervisor, the Sheriff of Richmond County, under 42 U.S.C. Sec. 1983 (1982). After the parties joined issue and completed their discovery, the case proceeded to trial.

A jury, consisting of six persons chosen from a venire of fifteen persons, tried the case. Each party was allowed three peremptory challenges to the twelve members of the venire proposed for the six positions on the jury; in addition, each party could make one peremptory challenge to the three members of the venire proposed for the one alternate juror position. Following a voir dire examination conducted by the court and counsel, the parties struck the jury, exercising all of their peremptory challenges in the following manner. The persons numbered one through twelve on the venire list were tendered to appellant; he struck one person, then tendered the eleven remaining to the appellees. The appellees struck one person and tendered the ten remaining to appellant. This process continued until each side had exhausted its three peremptory challenges; the six venire persons remaining constituted the jury. The parties then moved to the three venire persons proposed for the alternate's position and, after striking two of them, selected the alternate.

At the conclusion of this selection process, but before the jury was sworn, the appellant drew the court's attention to the Batson decision and asked the court to require the appellees' attorney to explain why he had struck the two blacks from the venire. After a brief colloquy with counsel, the court ruled that Batson 's holding, being "limited to criminal cases," was inapplicable and denied appellant's request. Appellant, to preserve the issue for appellate review, then moved the court to discharge the panel and to begin the jury selection process anew. The court denied his motion.

In this appeal, appellant presents several grounds for reversal, including his objection to the appellees' challenge of the black venire persons. Only appellant's Batson claim is worthy of discussion.


The appellant argues that the appellees' successful use of their peremptory challenges denied him the equal protection of the laws as guaranteed by the due process clause of the fifth amendment. 3 The objection is that a district court denies a black litigant the equal protection of the laws whenever it permits his adversary--whether the government or a private party--to use a peremptory challenge to reduce the black litigant's chances of being tried by a jury containing his racial peers. Implicit in the objection is the notion that were the black litigant white, his adversary could not, and would not, use the peremptory challenge to reduce the white litigant's chances of being tried by a jury containing his racial peers.

It is a fundamental principle of equal protection law that a court cannot grant a white person the right to be tried by a jury containing his racial peers and, at the same time, deny a black person the same right. This principle has been a part of our jurisprudence since the Supreme Court's decision in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). In that case, a black man, Strauder, was charged with murder. An all-white venire was summoned for the trial, pursuant to a West Virginia statute that limited jury service to white males. Before the process of selecting the jury began, Strauder objected to the state's refusal to accord him the same right it gave to a white accused--the right to be tried by a jury selected from a venire from which his racial peers were not excluded on account of their race. The court overruled Strauder's objection, and he was convicted by the all-white jury.

The Supreme Court of West Virginia affirmed Strauder's conviction. See State v. Strauder, 11 W.Va. 745 (1877). The United States Supreme Court, however, set the conviction aside, holding that the state trial court denied Strauder the equal protection of the laws guaranteed him by the fourteenth amendment when it forced him to proceed to trial before a jury drawn from an all-white venire. The Court observed that "[t]he very idea of a jury is a body ... composed of the peers or equals of the person whose rights it is selected or summoned to determine." 100 U.S. at 308. The Court then concluded that Strauder's jury could not have been such a body because the state had barred his racial peers from jury service. The Court went on to say that blacks had to be included among those eligible for jury service if Strauder was to be protected against the racial prejudice that the fourteenth amendment was designed to eliminate:

It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?

Id. at 309. 4

Under Strauder, the equal protection clause, standing alone, does not guarantee a black accused the right to a jury selected from a venire containing his racial peers. Rather, Strauder stands for the proposition that the state cannot discriminate against a black defendant by denying him a right it accords a white defendant: the right to be tried "by a jury selected from persons of his own race ... without discrimination against his color." Id. Implicit in this teaching is the thought that whenever an accused is denied this right, his case is presumptively prejudiced. It is prejudiced because he loses any advantage that he might gain from having his racial peers on the jury or, conversely, he suffers any disadvantage that might result from having no racial peers on the jury. 5

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court recognized that an equal protection claim, like that in Strauder, might apply to peremptory challenges. In Swain, the petitioner, who had been convicted of rape in the circuit court of Talladega County, Alabama, claimed that the trial judge denied him the equal protection of the laws when he permitted the prosecutor to exercise the state's peremptory challenges to rid the venire of blacks because of their race. The jury had been chosen in the same manner as the jury in the instant case: after the court qualified the venire, the parties, exercising all of their peremptory challenges, reduced the venire to twelve, the required number of jurors. During this process, the prosecutor used his peremptory challenges to strike all six blacks on the venire.

After the jury of twelve had been chosen, the petitioner moved the trial court to disqualify the jury on the ground that the prosecutor, in exercising the state's peremptory challenges, intended to, and did, deprive the petitioner of the possibility of having any blacks empaneled to try the case. The petitioner argued that if the court permitted the case to go to trial with a jury so chosen, he would be denied the equal protection of the laws.

In order to establish his equal protection claim, the petitioner cited two pieces of circumstantial evidence as proof of the prosecutor's discriminatory intent: (1) the prosecutor's peremptory challenge of all the black venire persons...

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