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New trial ordered because judge failed to voir dire about same sex prejudices

In this appeal Plaintiff Raymond Berthiaume sued Lieutenant David Smith of the Key West Police Department and the City of Key West. In his lawsuit he claimed he was falsely arrested, and claimed he was the victim of excessive force, false imprisonment, battery, and malicious prosecution at the hands of the officer who arrested him during an incident that took place during the Fantasy Fest Parade events in Key West.

The facts stem from an altercation between two gay men who formerly had been partners. Both men attended the Fantasy Fest parade with friends after which they went to a gay bar. Berthiaume was not ready to leave the bar when Jimenez was, so Jimenez waited by his car for a short time but returned to the bar to find Jimenez still there. Berthiaume led Jimenez out of the bar with his hand on Jimenez’s upper arm. Jimenez took the car keys from Berthiaume and ran down an adjacent alleyway. Berthiaume chased after Jimenez to retrieve his keys. Several police officer patrolling the activities observed the activities between the men and believed that they were witnessing a fight or altercation between the two men. Officer Smith ran toward the alley to intervene and he pushed Berthiaume on the shoulder to stop him from pursuing Jimenez causing him to fall and damage his wrist and jaw. Jimenez explained they were former partners and were trying to get back to together. Despite Jimenez’s unwillingness to press charges against Bethiaume, Smith arrested him and charged him with domestic battery.

After the 3-day trial a verdict was returned for the Defendants. The plaintiff appealed from the denial of his motion for new trial.

The court of appeals found that at the outset of this trial it was obvious to the district court and the parties that the case involved an alleged domestic battery between former partners of the same sex and that the sexual orientation of Berthiaume and his witnesses would be central facts at trial and were inextricably bound up with the issues to be resolved at trial. The relationship between Berthiaume and Jimenez and the nature of the alleged domestic dispute between them as former partners was of critical importance.   The district court ruled against Berthiaume’s request for a supplemental voir dire question on sexual orientation. After the plaintiff raised a Batson challenge to the defendant’s use of peremptory challenges against two potential jurors who he perceived as gay, explaining to the judge that the client and all the witnesses are gay, it became clear that additional questioning on sexual orientation bias was necessary.

In this civil rights action for excessive force, false imprisonment, and malicious prosecution, the district court did not ask any questions to determine whether any of the jurors might harbor prejudices against Berthiaume based on his sexual orientation. Instead the court gave general inquiries that were broadly framed and not calculated to reveal latent prejudices. At the time of voir dire, the jury has not reason to know that this case involved an alleged domestic dispute between former partners of the same sex or that Berthiaume’s sexual orientation would be part of the trial. Therefore, the district court erred in refusing to inquire about the sexual orientation bias during the voir dire questioning.


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