Paine v. City of Lompoc, 96-55942
| Decision Date | 06 November 1998 |
| Docket Number | No. 96-55942,96-55942 |
| Parties | 98 Cal. Daily Op. Serv. 8269, 98 Daily Journal D.A.R. 11,491 Shannon PAINE, Plaintiff-Appellant, v. CITY OF LOMPOC, a municipality; Daniel P. Ast, individually and as a peace officer; Timothy E. Tietjen, individually and as a peace officer; R.O. Herbert, individually and as Chief of Police; City Of Pismo Beach, a municipality; Michael J. Lynch, individually and as a peace officer; L. Scott Smith, individually and as a peace officer; John Derohan, individually and as a peace officer; Michael Leitcher, individually and as a peace officer; Julie Carroll individually and as a peace officer; Robert W. Jones, individually and as a peace officer; Unknown Leong, individually and as a peace officer; Unknown Petetit, Investigator, individually and as a peace officer; Unknown Keesling, Sergeant; individually and as a peace officer; Brook McMahon, individually and as a Chief of Police, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas E. Beck, Law Offices of Thomas E. Beck and Associates, Los Angeles, CA, for plaintiff-appellant.
Colin L. Pearce, Hatch and Parent, Santa Barbara, CA, for defendants-appellees City of Pismo Beach, Michael Lynch, L. Scott Smith, John DeRohan, Michael Leitcher, Julie Carroll, Brook McMahon, James Leong, Robert Petetit and Jerry Keesling.
David L. Nye, Carrington & Nye, Santa Barbara, CA, for defendants-appellees City of Lompoc, Daniel Ast, Timothy Tietjen and Robert Herbert.
Eric J. Parkinson, Parkinson & Haddad, San Luis Obispo, CA, for defendant-appellee Robert Jones.
Appeal from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding. D.C. No. CV-94-03772-JSL.
Before: WIGGINS and KLEINFELD, Circuit Judges, and SMITH * District Judge.
This is a civil suit arising out of a claim of police brutality. Though there are others, the main issue is adequacy of the voir dire.
Paine's 42 U.S.C. § 1983 case went to jury trial. The events had occurred on a July 4 evening at Pismo Beach Pier, after a fireworks display. The jury trial lasted 5 1/2 weeks.
According to the witnesses for the police officers and municipalities that were sued, they got a report of a fight going on in the parking lot. A witness testified that she directed them toward a circle of spectators watching the fight. Paine and another man, with a bloody shirt, were in the middle of the circle. Someone yelled "Cops!" and the crowd scattered. Paine and the fellow with the bloody shirt went separate ways. The police saw Paine walking away very fast, and tried to stop him. Paine sprinted away. One of the police yelled at him to stop and chased him. When he grabbed Paine by the elbow, Paine pushed him away, so other officers helped get control of Paine. They had a lot of trouble accomplishing that, so one of them used pepper spray. They eventually got Paine handcuffed, tied his hands to his feet, and carried him into a patrol car. They took him to a hospital. An emergency medical technician testified that Paine could bend Paine testified that before the fireworks show, he was making a quick trip to the men's room, when he heard someone say "Look out!" He turned and saw a policeman fall, and get up with his hand on his holstered gun. He ran toward Paine, grabbed him, and told him to get on the ground. Paine yanked his arm away, but another policeman grabbed his other arm. Paine struggled and tried to pull away, and additional police piled on top of him. Someone wrapped something around his legs, hurting his knee. Paine kept asking what he had done wrong. The police kept beating him and choking him, and he fainted when they pepper sprayed him. He woke up, with his hands and feet tied together, in the back seat of a police car. He subsequently was unable to work for three months because he was on crutches, and eventually he got knee surgery because of the injuries (evidence was also introduced that Paine had hurt his knee in a skiing accident).
his knee (Paine claimed knee injury), was belligerent towards the police, and smelled of alcohol. Paine was cited for resisting arrest and battery on a police officer, but the criminal case was dismissed.
The jury returned a verdict for the defense. Paine appeals, claiming three errors: that (1) the district court should have asked additional questions on voir dire; (2) the court should not have permitted the defense to introduce evidence of a pool hall attack by Paine on his girlfriend and another man; (3) the court should have granted him judgment as a matter of law on his claim that the stop (not the arrest) was unconstitutional.
Paine argues that the district judge did not ask enough questions at voir dire to enable him to exercise his peremptory challenges intelligently. Paine focuses on questions about whether jurors will give an edge to police officers over civilians in evaluating credibility.
Paine had submitted a list of proposed questions, and argues that the inquiry the judge made, without using most of his proposed questions, was inadequate. Paine had wanted questions such as He also wanted the judge to ask whether anyone on the panel had ever heard of Mark Fuhrman or Rodney King.
The judge handled the issue differently. He told the members of the panel that he would not ask them whether they would favor or disfavor police officer testimony over someone else's, because, he instructed them, "you are not going to do that." He told the panel right at the outset that what juries do is "look at the person who speaks and they're going to decide how much of it they believe and how much of it they don't believe." He did ask the jurors two questions designed to elicit bias either way. First, he asked whether any members of the panel had especially good or bad experiences with police officers. Second, he asked whether for any reason, whether he had asked a question that would elicit it or not, any one on the panel could not be absolutely fair to everybody whether they were law enforcement people or not. At the conclusion of the case, the judge instructed the jury that testimony of police officers was entitled to no special deference, should not be believed merely because "they're the police department," and should be subject to the same testing and examination by the jury as anyone else's testimony.
Paine argues that many jurors give the edge to police officers in matters of credibility, so more searching inquiry is needed to filter out the bias. While his proposed questions about Mark Fuhrman and Rodney King suggest that Paine expected and sought jurors who were biased against police testimony, he is right in his general point, that the voir dire ought to be adequate to assure an impartial jury, by enabling the parties intelligently to exercise their challenges. Darbin v. Nourse, 664 F.2d 1109, 1113 (9th Cir.1981).
A district judge has broad discretion in how to conduct the voir dire, and we review only for abuse of discretion. "It is wholly within the judge's discretion to reject supplemental questions proposed by counsel if the voir dire is otherwise reasonably sufficient to test the jury for bias or partiality." United States v. Powell, 932 F.2d 1337, 1340 (9th Cir.1991).
Paine argues that in this case, the voir dire was insufficient, under United States v. Baldwin, 607 F.2d 1295 (9th Cir.1979), Darbin v. Nourse, 664 F.2d 1109, 1113 (9th Cir.1981), and United States v. Contreras-Castro, 825 F.2d 185 (9th Cir.1987). The cases are distinguishable. Baldwin says that whether a question need be asked about police credibility depends on various case-specific circumstances, and "the decisive factor" requiring reversal in that case was that the judge not only did not ask about credibility, but also refused to ask whether members of the panel knew or were related to police officers. All Darbin stands for is that the judge cannot conduct a one-sided inquiry, because the facts in that case were that the judge asked about prejudice against police officers but not prejudice in their favor. Only people related to police officers were asked whether that would prejudice them either way.
In Contreras-Castro, we emphasized that we considered failure to inquire about bias in favor of police officers "in light of factors such as," among others, whether the issue was "covered in other voir dire questions and in the jury instructions." Contreras-Castro, 825 F.2d at 187. The whole case boiled down to a swearing match between one government agent and the defendant about the defendant's scienter, there was no corroboration for the government's case, and the judge never asked anything about bias in favor of government witnesses. In the case at bar, by contrast, the judge plainly instructed the jury to evaluate police testimony like anyone else's, during the voir dire and in the instructions at the end of the trial, and did ask about biases in favor of or against police officers.
The case at bar is more like United States v. Powell, 932 F.2d 1337 (9th Cir.1991), and United States v. Payne...
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