Marshall v. City of Chi.

• Decision Date: 11 August 2014
• Docket Number: No. 13–2771.,13–2771.
• Citation: 762 F.3d 573
• Parties: Kenneth MARSHALL, Plaintiff–Appellant, v. CITY OF CHICAGO, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

762 F.3d 573

Kenneth MARSHALL, Plaintiff–Appellant,

v.CITY OF CHICAGO, et al., Defendants–Appellees.

No. 13–2771.

United States Court of Appeals,Seventh Circuit.

Argued June 5, 2014.

Decided Aug. 11, 2014.

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

Stephen G. Collins, Attorney, City of Chicago Law Department, Chicago, IL, for Defendants–Appellees.

Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

KANNE, Circuit Judge.

On April 8, 2010, Chicago police officers executing a search warrant on a south side residence discovered a shotgun in one of the bedrooms. Earlier, plaintiff Kenneth Marshall, who was present in the residence, had suggested that the bedroom was his. Marshall is a convicted felon. Accordingly, the officers placed him under arrest and took him into custody on the theory that he constructively possessed a firearm while it was unlawful for him to do so. In this 42 U.S.C. § 1983 action, Marshall sued the City of Chicago and the law enforcement officers involved in his arrest for damages on the theory that the arrest was not supported by probable cause.

The matter proceeded to trial, and a jury returned a verdict in favor of the defendants. Marshall appeals, challenging two aspects of the jury selection process. First, Marshall argues that the district court abused its discretion by denying his motion to excuse a prospective juror for cause on the grounds that she held a prior belief concerning the possession of firearms by convicted felons, which Marshall believed made her unfit to serve. Second, Marshall argues that the district court erred by refusing to agree to an ad hoc alteration of the parties' agreed upon jury selection procedures for the express purpose of ensuring that the petit jury would include jurors of a certain race. Both of Marshall's arguments are meritless, and we affirm the judgment of the district court.

I

Marshall's first argument concerns the district court's denial of his motion to excuse a prospective juror for cause. A fair trial requires an impartial trial of fact: a jury capable and willing to decide the case solely on the evidence before it. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). Accordingly, the voir dire process aims to weed out jurors who hold personal biases so strong that their ability to act as a neutral arbiter is compromised. Id. If a prospective juror's responses to voir dire questioning reveal a bias so strongly as to convince the judge that the juror cannot render impartial jury service, the judge should dismiss the juror for cause. United States v. Brodnicki, 516 F.3d 570, 574 (7th Cir.2008).

That said, prospective jurors regularly come to voir dire carrying a host of preconceptions about what the law does and does not require. The sources for these beliefs are legion, ranging from personal experience, or the anecdotal experience of friends, to popular music ¹ and Law and Order reruns. Practically speaking, a preconception about the law cannot warrant per se disqualification. If it did, we would be hard pressed to find adequate numbers of qualified jurors.

To account for that reality while also ensuring the protection of each litigant's constitutional rights, we have endorsed a two-step process to assist district judges in determining which prior beliefs warrant for-cause dismissal and which do not. First, the court must determine whether a prospective juror manifests a prior belief that is both material and “contestable,” meaning a rational person could question its accuracy. Thompson v. Altheimer & Gray, 248 F.3d 621, 627 (7th Cir.2001). If a prior belief is not material to the issues the juror will be asked to decide, then the existence of that belief prejudices neither party and the juror need not be excused. If a prior belief is uncontestable—again, meaning unquestionably correct—then there simply is no “bias.”

Where a prior belief is both material and contestable, however, the court must proceed to the second step in the analysis and determine whether the juror is capable of suspending that belief for the duration of the trial. Thompson, 248 F.3d at 627. This is usually accomplished by question and answer. The judge looks for an “unwavering affirmation of impartiality,” id. (quoting United States v. Garcia, 936 F.2d 648, 653 (2d Cir.1991)), without which the juror should be excused. The requirement is satisfied by a juror's affirmation, for example, that she can set aside any opinion she might hold, relinquish her prior beliefs, or lay aside her biases or her prejudicial personal experiences. United States v. Allen, 605 F.3d 461, 464–65 (7th Cir.2010) (internal citations omitted). Ultimately, the decision whether to excuse a juror for cause rests firmly within the discretion of the district judge, and we will reverse only where we find an abuse of such. Id. at 464; see also Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th Cir.2011) (abuse of discretion occurs only where “no reasonable person would agree with the trial court's ruling.”).

Judge Durkin did not abuse his discretion, here. That is so for two reasons. First, the prospective juror's alleged bias was immaterial. Second, even if it was material, the prospective juror repeatedly gave unequivocal assurances that she could set aside her personal beliefs and perform her duties fairly and impartially within the confines of this case.

The prospective juror's alleged bias was immaterial because it had no bearing on the issues to be tried. There is no need to reproduce the entirety of the relevant exchange between the court and the prospective juror in this opinion; it suffices to say the prospective juror was clearly under the impression that her son's parole conditions prohibited any person from possessing a firearm in the house. But that is off-point. This case was not about Marshall's parole conditions. This case was about constructive possession. The officers arrested Marshall, a convicted felon, because they believed he was in constructive possession of a firearm found in the residence—which would be a felony regardless of what was contained in the documents governing his parole. The prospective juror expressed no opinion on what does or does not amount to constructive possession of a firearm,nor on when it is or is not a crime for a convicted felon to possess a gun. Her recollection of her son's conditions was therefore immaterial.

That brings us to the second point: Even if the prospective juror had carried in some misguided preconceptions about the truly relevant issues, she repeatedly offered Judge Durkin her “unwavering affirmation” that it would not affect her judgment in the instant case:

THE COURT: Okay. Okay. And the fact that there were conditions, nothing about that experience would affect your ability to be fair in this case?

PROSPECTIVE JUROR: No.

* * *

THE COURT: Okay. And, again, that experience involving your son, do you have any thoughts yourself about what conditions of parole should be? And if there's any evidence presented one way or the other about what the conditions are in this case, would the fact that your son was on parole have any effect on what you'd do in this case?

PROSPECTIVE JUROR: No.

* * *

THE COURT: Well, I guess the question is, if you read that—there may be an issue in this case about whether being in a house where there's a gun may not necessarily be a violation of parole unless when you're in that house you actually possess the gun or you constructively possess it. None of that was an issue for you when you read these conditions because you don't keep guns in your house?

PROSPECTIVE JUROR: No.

* * *

THE COURT: Okay ... the final question I have for you is the one I asked the other jurors. If you were seated there at the plaintiff's table or seated with the defendants, could you be—knowing yourself and your background and your educational background and your work experience, could you be fair? Would you want yourself as a juror if you were seated out here as one of the parties in the case?

PROSPECTIVE JUROR: (Nodding head.)

THE COURT: The answer is yes?

PROSPECTIVE JUROR: Yes.

These responses unequivocally confirm the juror's ability to disregard her own prior experience and judge the case on the basis of the evidence brought before her. If they are true, they preclude a challenge for...