Griffin v. Bell

• Decision Date: 04 September 2012
• Docket Number: No. 11–3389.,11–3389.
• Citation: 694 F.3d 817
• Parties: Shaquille GRIFFIN, Plaintiff–Appellant, v. Richard BELL, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

694 F.3d 817

Shaquille GRIFFIN, Plaintiff–Appellant,

v.Richard BELL, Defendant–Appellee.

No. 11–3389.

United States Court of Appeals, Seventh Circuit.

Argued June 1, 2012.

Decided Sept. 4, 2012.

Kenneth N. Flaxman (argued), Attorney, Chicago, IL, for Plaintiff–Appellant.

Jonathon D. Byrer (argued), Attorney, City of Chicago Law Department, Chicago, IL, for Defendant–Appellee.

Before FLAUM, ROVNER and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

Shaquille Griffin, a Chicago public high school student, sued Richard Bell, a Chicago police officer who was working as a security supervisor at Griffin's school, for using excessive force in arresting Griffin. See42 U.S.C. § 1983. A jury rejected Griffin's claim and found in favor of the officer. Griffin seeks a new trial, asserting that the district court conducted a flawed jury selection process and erred in excluding certain evidence. We affirm.

I.

On November 1, 2007, Griffin, a freshman at Corliss High School, arrived at school wearing blue jeans, a jacket and a baseball cap. Corliss has a dress code that requires students to wear white shirts and black pants and so Griffin was told to go home.¹ According to Officer Bell, as he accompanied Griffin out of the school, he asked Griffin to remove his hat. When Griffin did not comply, Officer Bell removed Griffin's cap, and handed it to him. Griffin put the hat back on, and Officer Bell removed it again, this time telling Griffin that he would return the hat when they reached the exit. At that point, Griffin struck Officer Bell in the face with his left hand. When Griffin attempted to hit Officer Bell a second time, a second security officer grabbed Griffin's arm. Officer Bell then told Griffin that he was under arrest, and managed to get one handcuff on Griffin before Griffin began to struggle with Bell.² The struggle continued for approximately twenty or thirty minutes before Officer Bell managed to get the second handcuff on Griffin. Other police officers then led him away. At trial, the second security officer, a teacher-librarian, and a third security guard corroborated Officer Bell's version of the events.

Griffin told the jury a very different story. At trial, he acknowledged that he was not in compliance with the dress code that day.³ He told the jury that he was headed to his locker to get his uniform when Officer Bell told him to remove his hat. Griffin testified that he complied with the officer's request but that the officer then grabbed him from behind and threw him into a wall. According to Griffin, the officer then head-butted him, knocking him to the floor in the process. The officer then handcuffed him and dragged him across the floor by the handcuffs. After Griffin managed to stand up again, the officer knocked him to the floor a second time. Once on the floor, Griffin told the jury, Officer Bell pounded his head into the floor whenever Griffin tried to raise his head, resulting in bruises to his face. Griffin's mother told the jury that he suffered an injury to his lip, “carpet burn on his face,” and bruises all around his head.

Before trial, Bell moved in limine to exclude from evidence a short video of part of the incident. The two-minute video was recorded by Heather Brown, a friend of Griffin's, with either a cell phone or camcorder. Brown e-mailed the video to Griffin's lawyer, and the video was made available to Bell near the beginning of the lawsuit. Four years passed between the incident and the trial, and Griffin apparently lost track of Brown during that time. Bell contended that, without presenting Brown as a witness, the plaintiff could not establish a proper foundation for the video. Bell also argued that the video was confusing, misleading and unfairly prejudicial because it showed only a small part of the incident and included gaps where the camera was not pointed at the struggle between Griffin and Bell. Without Brown as a witness, Bell contended, there was no way to determine whether the video was edited or why certain parts of the struggle were not visible. For example, the video did not show the beginning of the altercation, when Griffin attacked Bell, but showed only parts of the scuffle that appeared favorable to Griffin. At the start of the video, Griffin is wearing one handcuff with the second dangling from his wrist. Bell also objected to the admission of still pictures extracted from the video for similar reasons, although Bell agreed that certain pictures could be used to refresh a witness's recollection so long as they were not displayed to the jury. The court ultimately decided to exclude the video, excerpts from the video, and still photos created from the video because the video lacked a proper foundation, showed only part of the incident, and was unfairly prejudicial.

After Griffin testified that he was not in uniform when he arrived at school, Bell's attorney impeached him with his deposition testimony to the contrary. Griffin's lawyer wished to account for the inconsistency to the jury by having his client explain that he had viewed the video before testifying at trial and that the video refreshedhis recollection that he was wearing jeans and not black pants on the day of the incident. In keeping with the ruling excluding the video and all excerpts from it, the court ruled that Griffin's lawyer could not ask his client why his testimony was different at trial than it was at his deposition “if his answer will be that he viewed a video.” Tr. at 210. Griffin now appeals the jury's verdict in favor of Officer Bell.

II.

On appeal, Griffin complains that the district court applied an erroneous standard in denying challenges for cause to prospective jurors. He also contends that the court erred in refusing to allow him to use still photographs extracted from the video in his case-in-chief, in his cross-examination of defense witnesses, and in explaining to the jury how he refreshed his recollection before testifying at trial. Finally, he maintains that the court erred in allowing Officer Bell to testify that his actions in arresting Griffin complied with Chicago Police Department rules and regulations regarding arrests.

A.

The district court rejected every challenge for cause that Griffin raised during the jury selection process. Griffin appeals the court's decision in three of those instances: jurors Susan Mahoney, Nadine Maamari, and Tracey Carel. In each instance, Griffin argues that the juror indicated that she would give more credit to the testimony of a police officer than to that of a fourteen-year-old student. We review the district court's rulings on juror challenges for abuse of discretion.⁴United States v. Fletcher, 634 F.3d 395, 409 (7th Cir.), cert. denied,––– U.S. ––––, 132 S.Ct. 398, 181 L.Ed.2d 256 (2011) (because of the district court's ability to evaluate juror credibility during voir dire, we accord great deference to the court's ruling on a challenge for cause); United States v. Hicks, 635 F.3d 1063, 1067–68 (7th Cir.2011) (same); United States v. Scott, 267 F.3d 729, 743 (7th Cir.2001) (the process of empaneling a jury is left to the sound discretion of the trial judge, and we will not disturb the district court's rulings absent an abuse of discretion). Moreover, we will overturn a verdict based on the district court's refusal to remove a juror only if the party challenging the ruling can demonstrate prejudice. Fletcher, 634 F.3d at 409.

1.

Griffin exercised one of his three peremptory challenges to eliminate juror Mahoney from the jury pool, and so she was not part of the panel that ultimately decided the case. Because Mahoney did not participate in deciding the case, Griffin cannot demonstrate prejudice from the district court's refusal to remove her for cause. Fletcher, 634 F.3d at 409 (no prejudice shown when allegedly biased juror served as an alternate who did not participate in deliberations or assist in deciding the case). “[O]ur focus at this stage must be on the impartiality of the jury that actually sat, not on [the juror] who was struck.” United States v. Lott, 442 F.3d 981, 984 (7th Cir.2006). See also United States v. Martinez–Salazar, 528 U.S. 304, 313, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Because Mahoney was not a member of the jury that decided the case, the court's refusal to excuse her for cause could not have prejudiced Griffin unless the loss of that peremptory challenge somehow harmed him.

But Griffin did not make any argument in the district court or in his opening brief on appeal regarding the loss of a peremptory challenge. Although Griffin used all three of his available peremptory challenges, he never claimed that he was wrongly deprived of the use of a peremptory challenge by the district court's refusal to remove Mahoney for cause. More precisely, Griffin did not raise this argument until his reply brief, and arguments raised for the first time in a reply brief are deemed waived. Mendez v. Perla Dental, 646 F.3d 420, 423–24 (7th Cir.2011); United States v. Wescott, 576 F.3d 347, 354 (7th Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 1546, 176 L.Ed.2d 116 (2010). We therefore will not consider that claim on the merits.

2.

Griffin's next challenge for cause was to juror Carel. When the court asked Carel what she thought in general of police officers, Carel responded that they have a “really tough job,” and a “dangerous job.” Tr. at 84–85. The court then asked, “Do you believe that if an individual is a victim of excessive force which causes injuries, that a person should be able to sue the police officer for the excessive force if the evidence shows that?” Carel replied, “I guess if the evidence shows that, yeah.” Tr. at 85. The court asked Carel whether she would be able to suspend her judgment and not make up her mind until she heard everything, and whether she would be able to remain neutral until all of the evidence was in. S...