A unanimous three-judge panel of the Atlanta-based 11th Circuit Court of Appeals ruled on October 5 that Raymond Berthiaume is entitled to a new trial of his claims against the City of Key West and Police Officer David Smith stemming from Berthiaume’s arrest by Smith early on October 27, 2013. A jury ruled against Berthiaume at the first trial, after the judge had refused Berthiaume’s request that potential jurors be questioned about any anti-gay bias. Berthiaume v. Smith, 2017 WL 4422465, 2017 U.S. App. LEXIS 19403 (note: the case will be published in Fed. Appx., not Fed. 3rd).
The court summarized the evidence introduced at trial:
Berthiaume was in Key West to attend the Fantasy Fest Parade on October 26 together with his then-partner and now-husband, Jhon Villa, his friend Corey Smith, and his former partner, Nelson Jimenez. After the parade, the group remained in the area for a street party. By the early morning hours, all but Jimenez were ready to go home. Jimenez remained in a bar while the others returned to their car, parked on a side street.
After waiting by the car for some time, Berthiaume went back to the bar to get Jimenez so they could finally go home. He led Jimenez out of the bar with his hand on Jimenez’s upper arm. Jimenez grabbed the car keys and twisted out of Berthiaume’s grasp, running down an alleyway with Berthiaume in pursuit.
The two men were spotted by Lieutenant Smith and several other police officers, who thought they were seeing a fight between the two men and gave pursuit. Smith testified that Berthiaume appeared to be swatting and grabbing at Jimenez with both hands as Jimenez tried to pull away, but another officer who testified said that the only physical contact he saw was Berthiaume’s grasping of Jimenez’s upper arm as he attempted to bring Jimenez back to the car. Testimony differed as to whether Berthiaume was running or walking after Jimenez.
When Smith caught up with Berthiaume, he pushed him in the shoulder to stop him from pursuing Jimenez. Berthiaume fell to the ground, suffering a fractured wrist and jaw (both of which ultimately required surgery). Smith spoke to Jimenez, who thanked him for intervening but stated that nothing wrong had happened and he did not want to press charges against Berthiaume. He also told Smith that the men were former partners and were trying to get back together. Smith arrested Berthiaume anyway, based on his belief that this was a domestic dispute and that the standard practice of Key West police was to arrest a suspected domestic abuse assailant to assure separation of the parties for at least one night.
Smith also testified that it was appropriate for him to make the arrest despite Jimenez’s refusal to press charges, because Smith had seen (or so he believed) Berthiaume assaulting Jimenez. After investigating the situation, the local prosecutor decided to drop the charges against Berthiaume, who then filed suit against Smith and the City of Key West.
Berthiaume filed his lawsuit in the U.S. District Court, claiming violations of federal civil rights laws and Florida tort law, alleging claims of excessive force, false arrest, false imprisonment, battery/unnecessary force, and malicious prosecution. There was a three-day jury trial.
During jury selection, the judge questioned jurors about possible bias they might have against the police, but declined Berthiaume’s request that the jury be questioned about any possible bias they might have against gay people. After the jury returned a defense verdict, Berthiaume moved for a new trial, arguing that he was deprived of a fair trial before an impartial jury. He argued that gay people had only recently begun to gain acceptance in society, and many people still are biased or prejudiced against gay people. Thus, he argued, in a case such as this, involving both a gay plaintiff and gay witnesses, it was necessary for the court to inquire into prospective jurors’ potential anti-gay bias before empaneling the jury. The trial judge denied the motion, and Berthiaume appealed.
The appeals court pointed to Rosales-Lopez v. U.S., 451 U.S. 182, a 1981 Supreme Court decision, holding that under “special circumstances” the Constitution might require judges to ask questions about racial bias during jury selection in cases where racial issues are “inextricably bound up with the conduct of the trial” and there were “substantial indications” that the jurors might be affected by racial prejudice. In that criminal case, the Supreme Court said that the failure to ask such questions would lead to reversal of the conviction if the circumstances of the case indicated a reasonable possibility that racial prejudice might have influenced the jury.
Building on this precedent, the 11th Circuit had ruled in an unpublished decision in 2014, U.S. v. Bates, 590 F. App’x 882, that failure to inquire into anti-gay bias could also be grounds for reversing a criminal conviction. A gay man had been charged with possession of child pornography. Police investigators examining his computer also found evidence that the defendant sought gay men for sex on the internet, including photos of him engaged in sex with other men. The trial judge refused to question the jurors about anti-gay bias or to exclude the evidence, asserting that it was relevant to the charges against the defendant. The man was convicted, after the prosecution “repeatedly paraded before the jury” the evidence regarding the defendant’s sexual activities with other men. The 11th Circuit decided in that case that it was reasonably possible that anti-gay bias had affected the verdict and ordered a new trial.
“Here,” as in the earlier case, wrote the court, “Berthiaume’s sexual orientation and that of his witnesses became ‘inextricably bound up with the issues to be resolved at trial.’ In describing the events leading up to Berthiaume’s arrest, the witnesses repeatedly testified about Berthiaume’s romantic relationships with Jimenez and Villa. Indeed, in explaining why he felt it necessary to arrest Berthiaume despite Jimenez’s refusal to press charges,” continued the court, “Lieutenant Smith explained that victims are often reluctant to press charges in ‘domestic situations’ such as these because they have mixed emotions about the perpetrator.”
Although the trial judge did pose general questions about bias to the jury, none of them were specific enough to determine whether any of the jurors might harbor prejudices against a gay man based on his sexual relationships. While the judge asked if the jurors could be impartial, the appeals court thought this was “not calculated to reveal latent prejudice.” Thus, the court concluded, the district court “abused its discretion by failing to inquire about prejudice on the basis of sexual orientation during voir dire.” Since the Defendants had not shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,” wrote the court, “Berthiaume is entitled to reversal.”
Since the jury was not informed during voir dire that the plaintiff and many of the witnesses were gay, they would have no reason to volunteer any information about anti-gay bias in response to the trial judge’s general questions. In this case, said the court, “the risk that latent, undiscovered prejudices may have influenced the jury’s verdict is substantial.”
Although the 11th Circuit, which covers the states of Alabama, Georgia and Florida, had long been seen as a conservative circuit, it experienced a drastic turnaround during the last administration, as President Obama was successful in appointing and getting confirmed five judges. Of the twelve active judges on the court, all but four were appointed by Democratic presidents. The panel that decided this case included two Clinton appointees (one a senior judge from the 6th Circuit filling out the panel) and one Obama appointee. Thus far, Donald Trump has appointed one judge to the 11th Circuit who has been confirmed, joining appointees of Presidents Ford, George H.W. Bush, and George W. Bush.