              Case: 16-16345   Date Filed: 10/05/2017    Page: 1 of 9


                                                        [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 16-16345
                          ________________________

                      D.C. Docket No. 4:15-cv-10001-JLK



RAYMOND BERTHIAUME,

                                                               Plaintiff-Appellant,

                                        versus

DAVID T. SMITH,
individually,
CITY OF KEY WEST,
a Florida Municipal corporation,

                                                            Defendants-Appellees.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                   (October 5, 2017)
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Before HULL, JORDAN and GILMAN, * Circuit Judges.

PER CURIAM:

       Raymond Berthiaume brought suit against Lieutenant David Smith of the

Key West Police Department and the City of Key West (“the City”) under 42

U.S.C. §§ 1983 and 1988 and Florida law, alleging claims of excessive force, false

arrest, false imprisonment, battery/unnecessary force, and malicious prosecution,

arising from Lieutenant Smith’s October 2013 arrest of Berthiaume. Following a

three-day trial, the jury returned a verdict in favor of the Defendants, and the

district court subsequently denied Berthiaume’s motion for a new trial.

       On appeal, Berthiaume contends that he was denied a fair trial by an

impartial jury. Berthiaume asserts, inter alia, that the district court abused its

discretion in failing to ask jurors his proposed voir dire question, which was: “Do

you harbor any biases or prejudices against persons who are gay or homosexual?”

After review, and with the benefit of oral argument, we conclude that, given the

particular facts and circumstances in this case described below, the district court

abused its discretion in not asking that question. We explain why.

                            I. FACTUAL BACKGROUND

       This case involved an altercation between two gay men who formerly had

been partners. The following evidence was introduced at trial.

       *
        Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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        On the evening of October 26, 2013, Plaintiff Berthiaume attended the

Fantasy Fest parade in Key West, Florida with his then-partner and now-husband,

Jhon Villa, his friend Corey Smith, and his former partner, Nelson Jimenez. After

the parade, Berthiaume and his companions remained in the area for the street

party that followed. By the early morning hours of October 27, Berthiaume, Villa,

and Smith were ready to go home and returned to their car, which was parked on a

nearby street. Jimenez was not ready to leave and remained in one of the area gay

bars.

        After waiting for Jimenez by the car for some time, Berthiaume returned to

the bar to find Jimenez and escort him back to the car so that the group could

leave. As Berthiaume led Jimenez out of the bar with his hand on Jimenez’s upper

arm, Jimenez took the car keys from Berthiaume, twisted out of Berthiaume’s grip,

and ran down an adjacent alleyway. Berthiaume, clad only in boxer shorts or a

loin cloth and flip flops,1 followed Jimenez to retrieve the keys. During his pursuit

of Jimenez, Berthiaume became frustrated and banged his hand against a street

sign before continuing down the alleyway.

        Lieutenant Smith and several other officers were on duty patrolling the

Fantasy Fest area that night. Lieutenant Smith and another officer observed the

        1
          The witnesses agreed that Berthiaume was shirtless and wearing flip flops at the time of
his arrest, but differed in their descriptions of the rest of Berthiaume’s attire. The police-officer
witnesses described Berthiaume’s outfit as a loin cloth, while Berthiaume and his companions
stated that he was wearing boxer shorts.
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interaction between Berthiaume and Jimenez as they left the bar and believed that

they were witnessing a fight or altercation between the two men. Lieutenant Smith

testified that Berthiaume appeared to be swatting and grabbing at Jimenez with

both hands as Jimenez tried to pull away, while the other officer testified that the

only physical contact that occurred between the two men was Berthiaume’s

grasping of Jimenez’s upper arm as he attempted to escort Jimenez back to the car.

Although Berthiaume and one of his companions testified that Berthiaume was

walking as he followed Jimenez down the alleyway, Lieutenant Smith and other

officers testified that Berthiaume chased Jimenez down the alley and that both men

were running.

      Lieutenant Smith and the other officers who were in the vicinity ran toward

the alley to intervene. When he caught up to Berthiaume, Lieutenant Smith pushed

Berthiaume in the shoulder to stop him from pursuing Jimenez, causing

Berthiaume to fall to the ground. As a result of his fall, Berthiaume suffered a

fractured wrist and jaw, both of which ultimately required surgery.

      Lieutenant Smith spoke to Jimenez at the scene. Jimenez initially thanked

Lieutenant Smith for intervening, but later stated that nothing wrong had happened,

and he did not want to press charges against Berthiaume. According to Lieutenant




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Smith, Jimenez told him that he and Berthiaume were former partners and that they

were trying to get back together.2

       Despite Jimenez’s unwillingness to press charges against Berthiaume,

Lieutenant Smith chose to arrest Berthiaume and charge him with domestic

battery. 3 Lieutenant Smith explained that “in domestic situations” such as this,

“there is preferred arrest by the State of Florida” in order to ensure that the

aggressor and victim are separated at least for the rest of the evening. Lieutenant

Smith further indicated that an arrest was appropriate regardless of Jimenez’s

desire not to press charges because Lieutenant Smith personally had observed the

battery on Jimenez. Lieutenant Smith also noted that victims of domestic battery

sometimes “have different emotions for [the person who assaulted them] that make

them not want to say something against that person because they don’t want

something bad to happen to them for their future.”

                            II. MOTION FOR NEW TRIAL

       The jury ultimately returned a verdict in favor of the defendants.

Berthiaume filed a motion for new trial, arguing in part that he was deprived of a

fair trial with an impartial jury when the district court refused to question the

venire members regarding any potential bias they might have toward persons who


       2
        Lieutenant Smith’s arrest affidavit indicates that it was Berthiaume, rather than Jimenez,
who provided this information to the officers.
      3
        The State subsequently declined to prosecute Berthiaume.
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are gay or homosexual. Berthiaume noted that homosexuals had only recently

begun to gain acceptance in society, and many people still harbor bias or prejudice

against homosexuals. Accordingly, Berthiaume contended that in a case such as

his, involving both a gay party and gay witnesses, it is necessary for courts to

inquire into prospective jurors’ potential biases against homosexuals to ensure a

fair trial.

        The district court denied Berthiaume’s motion for new trial.

                                 III. DISCUSSION

        In the context of racial bias, the Supreme Court has held that, under “special

circumstances,” the Constitution may require district courts to ask questions

concerning racial bias—specifically, where racial issues are “inextricably bound up

with the conduct of the trial,” and there are substantial indications that racial

prejudice would likely affect the jurors. Rosales-Lopez v. United States, 451 U.S.

182, 189-90, 101 S. Ct. 1629, 1635 (1981) (internal quotation marks omitted). The

Supreme Court also indicated in Rosales-Lopez that questions regarding racial bias

may still be warranted in the absence of such special circumstances, but that a

district court’s failure to ask such questions will be reversible only if the

circumstances of the case indicate a reasonable possibility that racial prejudice

might have influenced the jury. Id. at 190-91, 101 S. Ct. at 1635-36.




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      In one unpublished case, this Court relied on this racial-bias precedent in

holding that the district court reversibly erred by failing to inquire about sexual-

orientation bias during voir dire. See United States v. Bates, 590 F. App’x 882

(11th Cir. 2014). In Bates, the defendant was charged with numerous child

pornography offenses. Id. at 883-84. In addition to finding child pornography on

his computer, investigators found evidence indicating that Bates used the internet

to meet other men for sexual encounters, as well as photographs of Bates engaged

in sex acts with other men. Id. at 884-85. Bates sought to suppress that evidence,

but the district court determined that it was relevant to establish his ownership and

use of the computer. Id. Anticipating that the evidence of his private life would

come out during trial, Bates then requested that the district court question

prospective jurors “about any prejudice they might harbor against him on the basis

of his sexual activity with other men,” which the district court declined to do. Id.

at 884-85. During the trial, evidence regarding Bates’s sexual activities with other

men was “repeatedly paraded before the jury,” and the jury ultimately convicted

Bates on all counts. Id.

      Here, as in Bates, Berthiaume’s sexual orientation and that of his witnesses

became “inextricably bound up with the issues to be resolved at trial.” See id. at

887 (internal quotation marks and citation omitted). In describing the events

leading up to Berthiaume’s arrest, the witnesses repeatedly testified about


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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, 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.

      Moreover, as in Bates, the district court here “did not ask any questions

specific enough to determine whether any of the jurors might harbor prejudices

against [Berthiaume] based on his sexual relationships.” See Bates, 590 F. App’x

at 887. Nor were the district court’s general inquiries regarding the jurors’ ability

to be impartial and its instruction that jurors not be prejudiced against witnesses

based on the witnesses’ backgrounds sufficient “to reach the important concerns

highlighted by [Berthiaume’s] proposed inquiry,” as they were “broadly framed”

and “not calculated to reveal latent prejudice.” See id. (internal quotation marks

omitted). As a result, the district court abused its discretion by failing to inquire

about prejudice on the basis of sexual orientation during voir dire. Id.

      Further, the Defendants have not shown “beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained,” and thus,

Berthiaume is entitled to reversal. See id. at 888 (quoting Chapman v. California,

386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967)). At the time of voir dire, the jury had

no reason to know that Berthiaume’s sexual orientation or that of his witnesses


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would be a part of the evidence at trial. Consequently, “they had no reason to offer

up prejudices they might harbor on that basis when the District Court posed its

general questions” regarding bias. See id. at 889. Moreover, the district court

asked the jurors multiple questions about any biases or prejudices they might have

against law enforcement. But the district court refused to ask any questions about

prejudice on the basis of sexual orientation. Therefore, we have no way to discern

whether the jury was biased against Berthiaume for that reason. See id. Given the

repeated testimony at trial concerning Berthiaume’s homosexual relationships with

Villa and Jimenez, and the characterization of the altercation that led to

Berthiaume’s arrest as a domestic dispute, the risk that latent, undiscovered

prejudices may have influenced the jury’s verdict is substantial. Id.

                                    IV. CONCLUSION

       For the foregoing reasons, we vacate the district court’s final judgment in

favor of the Defendants and remand for a new trial.

       VACATED AND REMANDED. 4




       4
          In light of our decision, we need not consider Berthiaume’s alternative ground for a new
trial based on the Defendant’s exercise of peremptory challenges in alleged violation of Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and its progeny.
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