Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2003

Butler v. Camden
Precedential or Non-Precedential: Precedential

Docket No. 02-2903




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                                    PRECEDENTIAL

                                         Filed December 18, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 02-2903


                       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

        Appeal from the United States District Court
                for the District of New Jersey
              (D.C. Civil Action No. 99-cv-4367)
       District Judge: Honorable Stephen M. Orlofsky

                      Argued June 26, 2003
         Before: SLOVITER, AMBRO, Circuit Judges,
                and TUCKER,* District Judge

              (Opinion Filed: December 18, 2003)

* Honorable Petrese B. Tucker, United States District Court Judge for the
Eastern District of Pennsylvania, sitting by designation.
                                  2


                          Alan E. Denenberg, Esquire (argued)
                          Abramson & Denenberg, P.C.
                          1200 Walnut Street
                          Sixth Floor
                          Philadelphia, PA 19107
                            Attorney for Appellant
                          Jonathan E. Diego, Esquire
                          Marc A. Riondino, Esquire (argued)
                          Office of the City Attorney
                          4th Floor, City Hall, Suite 419
                          P.O. Box 95120
                          Camden, NJ 08101-5120
                            Attorneys for Appellees


                   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

1. Appellant’s complaint also named a second Camden City police officer
and the police chief, the City of Camden, and the townships of
Pennsauken and Cherry Hill.
2. The jury returned its verdict on March 13, 2002, and judgment was
entered on March 19, 2002. Appellant filed a timely Petition for
Reconsideration/Motion for New Trial, which was denied by order of the
district court on June 5, 2002. The instant appeal timely followed.
                                 3


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

3. Appellee did not provide a counterstatement of facts and indicated
only that he agreed with Appellant’s first paragraph, except for
Appellant’s statement that he placed his hands in the air after he
stopped the car. The recitation of the facts are therefore taken from
Appellant’s statement of the facts. See Appellant’s Br. at 4-5.
                              4


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.
                              5


    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
                                  6


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., 

,
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, 

(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, 

, 188 (1981); United States v. Napoleon, 

, 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. 

. 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, 

, 710 (3d Cir. 1993) (citing United States
v. Boise, 

, 505 (9th Cir. 1991)) (add’l citation
omitted). See also United States v. Salamone, 

, 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.”).

4. We review the district court’s conduct of voir dire for abuse of
discretion. United States v. Wooten, 

, 945 (3d Cir. 1975).
                              7


   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. 

(quoting Aldridge v. United States, 

, 313 (1931)). Peremptory challenges, though not
constitutionally mandated, Ross v. Oklahoma, 

,
88 (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, 

, 780 (3d Cir. 1965) (citing Pointer v. United States, 

, 408 (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. 

(citation omitted);
Fed. R. Civ. P. 47(a) (providing that where the court
conducts the voir dire examination, “the court . . . shall
itself submit to the prospective jurors such additional
questions of the parties or their attorneys as it deems
proper”). Compare Fed. R. Crim. P. 24(a). Notwithstanding,
it is generally not required that the “district judge . . .
pursue any specific line of questioning on voir dire.”

. However, the “trial court[’s] . . .
broad discretion as to the questions to be asked . . . [is]
subject to the essential demands of fairness.” 

(citation and internal quotations omitted). What
is required of the district court is that it make those
inquiries necessary to satisfy both its duty to select an
impartial jury and allow for intelligent exercise of
peremptory challenges. 

.

                             B.
   Appellant contends that district court’s failure to
question the prospective jurors on potential law
enforcement bias was prejudicial and impaired his right to
a fair and impartial jury. Appellant argues that this inquiry
was necessary and proper since all his witnesses on liability
were civilians and defense witnesses were exclusively police
officers, and the resolution of the dispute at trial turned on
the credibility of these witnesses. Appellant further
                                  8


contends that the prior precedents of this circuit and the
majority of circuit courts to address this issue weigh in his
favor. Conversely, Appellee contests Appellant’s claim that
he was entitled to have the particular questions he
proffered at voir dire asked of the panel, and contends that
the trial court acted within its discretion and made those
inquiries necessary to safeguard against any disqualifying
disposition toward law enforcement.
   This court has not addressed the precise issue raised on
this appeal. Challenges to the adequacy of the voir dire
respecting juror attitudes toward police officials have
primarily arisen in the context of criminal trials, with the
issue also arising in some reported civil rights cases. See
Paine v. City of Lompoc, 

(9th Cir. 1998);
Darbin v. Nourse, 

(9th Cir. 1981). The
majority of federal courts of appeals to have passed on this
question have held that the district court may, in certain
circumstances, commit error when it fails to examine the
jury pool for potential law enforcement bias when requested
by counsel.5 See, e.g., Brown v. United States, 

(D.C. Cir. 1964); United States v. Victoria-Peguero, 

(1st Cir. 1990); United States v. Gelb, 

(2d
Cir. 1989); United States v. Baldwin, 

(9th
Cir. 1979); United States v. Spaar, 

, 1254
(8th Cir. 1984); United States v. Espinosa, 

(10th Cir. 1985). In Brown, a leading case on this subject,
the Court of Appeals for the District of Columbia Circuit, in
recognizing the special deference a police officer’s credibility
may be afforded by some venirepersons, observed:
     [W]hen important testimony is anticipated from certain
     categories of witnesses, whose official or semi-official
     status is such that a juror might reasonably be more,
     or less, inclined to credit their testimony, a query as to
     whether a juror would have such an inclination is not
     only appropriate but should be given if 

(then-Circuit Judge Burger). Courts
following Brown have held that parties are entitled to have

5. But see United States v. Lancaster, 

(4th Cir. 1996) (en
banc), overruling United States v. Evans, 

(4th Cir. 1990);
United States v. Lawes, 

(2d Cir. 2002) (split panel).
                              9


the trial court examine the attitudes of the prospective
jurors on the question of law enforcement bias as a means
of providing “the parties . . . some surface information
about prospective jurors which might furnish the basis for
an informed exercise of peremptory challenges or motions
to strike for cause based upon a lack of impartiality,”

(citing United States v. Segal,

, 581 (3d Cir. 1976)) (add’l citation omitted),
though reversal is not mandated in all cases.
   The cases in our circuit concerning the adequacy of the
voir dire examination have applied these same principles. It
is the rare case that the failure to ask a particular question
has resulted in reversal. However, we have found error and
reversed in cases where the district court barred all inquiry
into a relevant subject matter designed to elicit a
disqualifying prejudice. In United States v. 

, a
certified public accountant was prosecuted for conspiracy
and attempted bribery in connection with an Internal
Revenue Service (“IRS”) audit. The accountant and his co-
defendant requested voir dire on the question of whether
any prospective juror or his or her immediate family had
worked for the IRS or, alternatively, the state or local
equivalent. The district court denied the request and we
vacated the convictions. In deciding the case, we first
acknowledged that “the parties have the right to some
surface information about prospective jurors which might
furnish the basis for an intelligent exercise of peremptory
challenges or motions to strike for cause based on a lack of

(citing Ristaino v. Ross, 

, 598 n.9 (1976); 

). A new trial was
merited, the court concluded:
      [b]ecause of the circumstances in this case, the
      defendants would reasonably need to know whether
      any member of the panel or any person in his family
      had ever been employed with the Internal Revenue
      Service. The possibility of lingering loyalty to the
      service, friendship of person still employed there, or
      knowledge of agency procedures are all factors which
      counsel would weigh in deciding whether to challenge.

in United States v. 

, this court
vacated a conviction where the district court categorically
excluded all National Rifle Association (“NRA”) members in
the jury pool by reason of their association without further
inquiry. We held that the restricted scope of the voir dire
“deprive[d] the trial court of the benefit of the factual
predicate that justifies an exclusion for 

. Finally, in Kiernan v. Van 

, a negligence
action, the trial judge was found to have committed
reversible error for refusing to propound questions designed
to discover whether any panel members were employed by
or had financial interests in a casualty insurance company
or were employed as claims adjusters or insurance agents
upon the plaintiff ’s request. These questions, the court
held, were “relevant in ascertaining bias against one
claiming damages for 

. See also
United States v. Poole, 

(3d Cir. 1971) (refusal
to ask prospective jurors whether they or a family member
had been a victim of robbery in an armed robbery trial
reversible error).
   Appellee urges that these cases are distinguishable from
the present because the district court asked the panel
whether anyone had been arrested and whether they or an
immediate family member were or had been employed by a
police department, and these questions were adequate to
elicit potential pro police bias. See N.T. (3/4/02) at 40-41.
We are not persuaded. There is no basis to conclude that
only arrestees or persons employed in law enforcement or
their immediate relatives may harbor a disqualifying bias
toward the police. As the First Circuit has observed, some
venirepersons may believe “[l]aw enforcement officials wear
an invisible cloak of credibility by virtue of their position.”
United States v. Anagnos, 

, 4 (1st Cir. 1988)
(quoting United States v. Patriarca, 

, 321 (1st
Cir.), cert. denied, 

(1969)).
   Appellee does not cite to any independent evidence
presented at trial which corroborated his or the other
officers’ testimony. Thus the trial in this case essentially
boiled down to a swearing contest between Appellant and
the responding police officers. In light of these
circumstances, we are in accord with our sister circuits
                               11


which have held that “[w]here government [law
enforcement] agents are apt to be key witnesses, the trial
court, particularly if seasonably requested, should
ordinarily make inquiry into whether prospective jurors are
inclined to have greater faith in the agents’ testimony
merely by virtue of their official positions.” United States v.
Victoria-Peguero, 

, 84 (1st Cir. 1990) (citing

) (add’l citations omitted); 

(“We agree that a voir dire inquiry of the
type . . . stated in Brown, ‘is not only appropriate but
should be given if requested.’ ”).
   Of course, reversal is not necessarily compelled in every
case where an error of this nature is committed. See 

(“[w]hile some circumstances may require
voir dire on bias in favor of police officer credibility, there is
no automatic reversal for the lack of it.”); 

(same); United States v. Cardales, 

(1st
Cir. 1999) (no plain error where the defendant failed to
request that trial court test jurors for potential police bias).
We believe the harmless error analysis of the Baldwin court
is appropriate and look to the following factors to determine
whether the error in the voir dire served to deny Appellant
his right to have his claims decided by a fair and impartial
jury:
    [1] importance of the government agent’s testimony to
    the case as a whole; [2] the extent to which the
    question concerning the venireperson’s attitude toward
    government agents is covered in other questions on
    voir dire and on the charge to the jury; [3] the extent
    to which the credibility of the government agent-
    witness is put into issue; and [4] the extent to which
    the testimony of the government agent is corroborated
    by non-agent witnesses [or evidence].

, quoted in 

. We also consider a fifth factor: the extent to which
the trial court’s charge to the jury may have remediated any
prejudice. 

. As discussed previously,
the defense’s case on liability consisted entirely of the
testimony of Officer Frett and the other responding police
officers and the outcome of this case was thus predicated
on the jury’s determination as to these witnesses’
                                   12


credibility. The court’s examination at voir dire did not
touch upon the subject of potential police bias, and was
limited to an inquiry into the panel’s arrest background and
employment and familial connections to law enforcement.
Nor did the district court’s charge to the jury include an
instruction against police bias, despite the trial judge
stating that such an instruction was standard and would
be included in the charge.
   Notwithstanding, Appellee contends that the “equal
standing of the parties” charge given by the district court
effectively mitigated any prejudice Appellant may have
suffered during the jury selection process. Again, we are
not persuaded. The district court instructed the jury:
     This case should be considered and decided by you as
     a dispute between persons of equal standing in the
     community, of equal worth, and of the same station in
     life. The parties in this case, the plaintiff and
     defendant, are on an equal footing in this Court. You
     should base your verdict on an objective evaluation of
     the evidence that has been presented.
N.T. (3/13/02) at 20.6 The concern in this case is that there
may have been venirepersons in the jury pool who were
dispositioned to credit the testimony of a police officer over
that of a civilian simply by reason of the officer’s official
status, and the district judge failed to engage in
questioning which would have assisted him and counsel in
identifying such venirepersons. Jurors are assumed to
follow the law as instructed by the court. Richardson v.
Marsh, 

, 206 (1987) (“the almost invariable
assumption of the law that jurors follow their instructions”)
(internal citation omitted). Thus, in some cases, depending
on the circumstances, it may fairly be concluded that a
police credibility charge substantially similar to that
proposed by Appellant at trial had the effect of curing any

6. The trial transcript of the charge conference and the district court’s
charge to the jury is provided in Appellant’s supplemental appendix,
submitted pursuant to this court’s order issued at oral argument. See
Fed. R. App. P. 10(e). The supplemental appendix also includes
Appellant’s proposed jury instructions as well as the district court’s
written charges.
                                    13


harm resulting from an inadequate voir dire.7 See Victoria-

; United States v. Nash, 

, 755-56 (11th Cir. 1990). Such determinations,
however, must be made on a case-by-case basis. Paine, 

.
   We need not make that determination in this case since
a law enforcement bias charge was not given by the district
court.8 The equal standing charge was not an adequate
substitute because it failed to draw the jurors’ attention to
the fact that the testimony of the police officers was not to
be given any more or any less weight than any other
witness by reason of their status as police officers. The
district court’s general instruction on witness credibility
was likewise inadequate. In reaching this conclusion we do
not decide that Appellant was entitled have the court ask
all the supplemental questions he proposed. It is the trial
court’s province to determine the questions to be asked,
their phrasing and the scope of the inquiry into any subject
matter, subject only to the requirements of fundamental
fairness. United States v. Dansker, 

, 56 (3d Cir.
1976) (citing Wooton, supra); 

(no
error where trial court posed “other questions [on the
subject of police bias] which would elicit partiality in favor
of or against police officers[ ]”). The first two questions
proposed by Appellant essentially cover the same ground,
and the district court may on remand reasonably conclude
that these questions are duplicative. Appellant’s fourth

7. Appellant requested the following charge on police credibility at trial:
“The testimony of a law enforcement officer is entitled to no more or less
consideration based on the fact that the witness is employed in the law
enforcement field. You are to evaluate the officer’s testimony as you
would any other witness.” Appellant’s Suppl. Appendix at 9. See also
N.T. (3/12/02) at 5-6.
8. During voir dire, the trial judge indicated a willingness to include a
police related bias charge in his instructions to the jury, but expressed
the concern that questioning the jury pool on this issue would be “more
prejudicial than helpful.” The trial judge did not expound on the basis
for this belief and we will not speculate. However, we note the
appropriate time to first address concerns about potential juror
impartiality, particularly regarding matters material to the case, is
during the voir dire examination.
                              14


question broadens the inquiry into jury pool’s attitudes
toward law enforcement. It is within the district court’s
discretion to determine whether additional questioning in
this area is necessary to facilitate the selection process. As
for the third question concerning whether a juror would be
inclined to believe that any force used in the course of an
arrest was lawful, the district court was well within its
discretion in concluding that this matter concerned a
question of law to be covered by the jury charge and not
voir dire.
   Thus we recognize that the district court possesses wide
latitude over the determination of the particular questions
to be asked, and the scope of the inquiry at voir dire. See,
e.g., 

; United States v. Madrigal, 

, 1372 (10th Cir. 1994) (no abuse of discretion
“when the court inquires into the proposed subject matter
in its own questions”). However, the law requires that the
district court make those “inquiries relevant to the
discovery of actual bias” and which, in the final analysis,
satisfy “the essential demands of fairness.” 

; 

. We find that the
district judge failed in this task.

                     IV.   CONCLUSION
  Based on the foregoing, we vacate the judgment entered
below and remand for a new trial.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit