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
Before: Sloviter, Ambro, Circuit Judges,
and TUCKER,*fn1 District Judge
The opinion of the court was delivered by: 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.*fn2 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.*fn3 Our disposition of this case requires that we only consider the first question, which asks whether the district court's conduct of the voir dire infringed upon Appellant's right to have his case decided by a fair and impartial jury.
The facts as developed at trial are as follows.*fn4 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.
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 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 ...