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Berthiaume v. Smith

United States Court of Appeals, Eleventh Circuit

November 22, 2017

RAYMOND BERTHIAUME, Plaintiff-Appellant,
DAVID T. SMITH, individually, and CITY OF KEY WEST, a Florida Municipal corporation, Defendants-Appellees.

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 4:15-cv-10001-JLK

          Before HULL, JORDAN and GILMAN, [*] Circuit Judges.

          PER CURIAM:

         Defendants David T. Smith and the City of Key West (collectively "defendants") moved for panel rehearing of an opinion originally filed on October 5, 2017 and reported at __ Fed.Appx.__, 2017 WL 4422465. Defendants also moved for publication of the opinion. We grant in part and deny in part the defendants' motion for panel rehearing, grant the defendants' motion for publication of the opinion, vacate our prior opinion, and substitute for it the following opinion.

         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.


         This case involved an altercation between two gay men who formerly had been partners. The following evidence was introduced at trial.

         On the evening of October 26, 2013, 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 male 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 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 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 ...

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