UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JOSEPH P. SMITH )

)

Plaintiff, )

) No. 12 C 4546

v. )

) Judge Sara L. Ellis

CAPTAIN MARK ALTMAN, )

)

Defendant. )

OPINION AND ORDER

Plaintiff Joseph Smith brought suit against Captain Mark Altman and the City of Chicago 

on a claim of excessive force under 42 U.S.C. § 1983 arising from a water rescue to which both 

Smith, a Chicago Marine Unit Officer, and Altman, a Chicago Fire Department Captain, 

responded. After a trial in October 2014, a jury found in favor of Smith and against Altman on 

the excessive force claim and awarded compensatory damages in the amounts as follows: 

medical care: $264,330.15; wages: $162,449.00; pain and suffering: $600,000.00; and loss of 

normal life: $300,000.00. The jury also awarded punitive damages in the amount of $5,000.00 

against Altman. Altman now brings a motion for new trial pursuant to Federal Rule of Civil 

Procedure 59, arguing that exclusion of evidence related to a Fire Department empowering 

ordinance was an error of law and failure to order a new venire after the Court dismissed two 

jurors denied him a fair trial. Because the Court did not commit error by excluding evidence of 

the ordinance and Altman has not shown that he was prejudiced by the jury that heard the case, 

the motion for new trial [184] is denied.1

1 The City of Chicago filed a motion for new trial [186] and a motion for set-off [196]. Those motions are addressed 

in separate opinions that will issue concurrently. 

 
LEGAL STANDARD

The decision to grant a new trial is committed to the Court’s discretion. Johnson v. Gen. 

Bd. of Pension & Health Benefits of United Methodist Church, 733 F.3d 722, 730 (7th Cir. 

2013). In deciding whether to grant a new trial, the Court considers “if the jury’s verdict is 

against the manifest weight of the evidence or if the trial was in some way unfair to the moving 

party.” Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014). 

To obtain a new trial based on exclusion of evidence, Altman must demonstrate that the 

court abused its discretion. See Thompson v. City of Chicago, 722 F.3d 963, 971 (7th Cir. 2013). 

“Special deference” is given to the trial court’s decisions. Id. (internal quotation marks omitted). 

A court will only order a new trial “if the jury’s verdict is against the manifest weight of the 

evidence, or if for other reasons the trial was not fair to the moving party.” Willis v. Lepine, 687 

F.3d 826, 836 (7th Cir. 2012) (alteration omitted) (citation omitted) (internal quotation marks 

omitted). This is a difficult burden for Altman to meet. See Alverio v. Sam’s Warehouse Club, 

Inc., 253 F.3d 933, 939 (7th Cir. 2001). 

Similarly, to receive a new trial based on the Court’s decisions during the jury selection 

process, Altman must show an abuse of discretion that resulted in prejudice to him. See Griffin 

v. Bell, 694 F.3d 817, 821 (7th Cir. 2012). For prejudice, Altman must demonstrate that the juror 

selection issue “affected the outcome of the trial.” United States v. Osigbade, 195 F.3d 900, 

904–905 (7th Cir. 1999). 

ANALYSIS

I. Exclusion of the Ordinance

Altman challenges the exclusion of evidence about his ability to issue orders to and arrest 

individuals at the scene of a fire emergency and the refusal of his Proposed Jury Instruction 29, a 

2
modification of § 2-36-390 of the City of Chicago Municipal Code establishing that authority. 

Altman argues that a firefighter’s authority to order and arrest is not well-known and the failure 

to inform the jury of the source of this authority prejudiced him because the jury was not able to 

consider one of the bases of his decision to use force. Smith defends the exclusion of this 

evidence as irrelevant to the excessive force inquiry and potentially confusing for the jury. 

Because the refusal of the jury instruction and the limitation of testimony on the source of 

Altman’s authority were not error, Altman’s motion on this basis is denied.

A. Altman’s Proposed Jury Instruction 29

During the pre-trial conference, the Court refused Altman’s Proposed Jury Instruction 29, 

a modification of § 2-36-390 of the City of Chicago Municipal Code. The proposed instruction 

read: 

All persons in the vicinity of an emergency shall be subject to the orders of the 

chief fire marshal or other member of the fire department in charge of the control 

thereof; provided, however, that no person not a member of the fire department 

shall be bound to obey any member of the fire department in charge at such 

emergency unless such member shall wear an insignia indicating his status or that 

such status shall be made known to the person charged with obedience of orders. 

The chief fire marshal or other member of the fire department in charge shall have 

power to arrest any person refusing to obey lawful orders issued in accordance 

with this section.

Doc. 135-4 at 40. The Court stated that a jury instruction on this issue would be confusing 

because this was not a false arrest case. Doc. 185-1 at 3. The Court further noted that, under 

Thompson v. City of Chicago, Altman’s actions in conformity with that Code section are 

irrelevant to an analysis of whether his actions were objectively reasonable for the excessive 

force inquiry and it would confuse the jury to be specifically instructed on this issue. See 472 

F.3d 444, 455 (7th Cir. 2006). After hearing argument from Altman’s counsel, the Court stated 

that having this information in an instruction elevated it more than was warranted. Doc. 185-1 at 

3
5. The Court then suggested that the parties agree on an evidentiary stipulation about a 

firefighter’s authority to issue orders and make arrests, and said, “I’m not saying that that can’t 

come in. I just don’t think that it should be the subject of a jury instruction.” Id. Altman’s 

counsel and Smith’s counsel agreed that they would discuss the possibility of a stipulation. Id. at 

6. Altman’s counsel also proposed bringing this evidence in via the testimony of Police Captain 

Marc Buslik. Id. at 5. It was noted that Agreed Proposed Jury Instruction 20 would inform the 

jury that a firefighter can use reasonably necessary force in performing his job.2 Id. at 6–7. 

Ultimately, the Court refused Proposed Jury Instruction 29, but did not make a ruling barring any 

such evidence and explicitly allowed Altman’s counsel to readdress the issue at a later time as 

needed. Id. at 9. 

B. Motions In Limine and Trial Rulings Limiting the Scope of Questioning 

About the Ordinance

i. Motions in Limine

The ordinance and Altman’s authority to issue orders and to arrest at the scene were

addressed several times in the Parties’ motions in limine. Smith’s motion in limine number 

thirteen sought to preclude Altman from presenting any evidence of any alleged violations by 

Smith of Chicago Police Department or Chicago Fire Department practices or procedures. In 

finding that any evidence of Smith’s compliance or noncompliance with practices and 

procedures was not relevant, the Court explained: 

As an initial matter, Whren v. United States, 517 U.S. 806 (1996), and Thompson 

v. City of Chicago, 472 F.3d 444 (7th Cir. 2006) are inapplicable. Evidence of an 

officer’s violation or conformity with police procedures is not relevant to an 

analysis of whether that officer’s actions were objective[ly] reasonable for the 

excessive force inquiry. See Thompson, 472 F.3d at 455. Therefore, evidence of 

Altman’s compliance with Chicago Fire Department procedures would be 

2 Agreed Proposed Jury Instruction No. 20, “Definition of ‘Unreasonable,’” which was approved as submitted and 

read to the jury, stated: “In performing his job, a Fire Department officer can use force that is reasonably necessary 

under the circumstances.” Doc. 135-4 at 24. 

4

 
irrelevant. However, here the defendant seeks to admit evidence of Smith’s 

compliance with the Chicago Police Department’s, rather than the Chicago Fire 

Department’s, procedures. Such evidence is not precluded by Thompson.

Doc. 142 at 6. 

In his motion in limine number fifteen, Smith sought to exclude evidence that he 

disobeyed Altman’s direct order, arguing that evidence of Altman’s authority to issue such an 

order would require expert testimony and that whether he followed that order is irrelevant to an 

excessive force inquiry. The Court found that Altman’s issuance of an order and Smith’s actions 

in response were directly relevant to the excessive force analysis and would not be excluded. 

The Court further determined that, although Altman’s authority to issue such an order likely 

would not require expert testimony, 

[T]he Seventh Circuit has determined that police policies and procedures are not 

relevant to determining the reasonableness of an officer’s actions. See Thompson, 

472 F.3d at 455. Therefore, evidence of Altman’s authorization (or not) to use 

force in a given situation is not relevant and would be unduly prejudicial, as the 

jury may be distracted from determining the facts of the incident and unduly 

swayed by an official statement. 

Id. at 7. 

Smith’s motion in limine number sixteen asked the Court to exclude “evidence or 

argument regarding the Chicago Fire Department and Chicago Police Department General 

Orders and Policies as it Relates to the Objective ‘Reasonableness’ of Defendant’s Conduct.” Id. 

Altman responded to this motion by stating that he had no intention of introducing evidence that 

Altman was complying with Fire Department regulations and therefore his actions were 

constitutionally reasonable. The Court therefore determined that this motion to exclude was 

moot. 

Altman’s motion in limine number thirteen sought to bar evidence that he was not 

allowed to use force in performing his job duties. The Court did not have enough information 

5
about the specific evidence to be tendered on this subject, and so refused to issue a blanket, pretrial prohibition, but noted that evidence of Altman’s authority to use force might run into the 

Thompson prohibition if it was offered as part of the excessive force analysis. Smith responded 

to this motion by objecting to Altman’s Proposed Jury Instruction 29, discussed above. The 

Court rejected Altman’s argument that the ordinance was relevant to the reasonableness of his 

actions at the scene, and, again relying on Thompson, found that his authorization under the 

ordinance to issue orders had no relevance to the excessive force inquiry and would confuse the 

jury.

ii. Trial Rulings

On October 15, 2014, during the trial, Smith’s counsel brought the issue of the ordinance 

to the Court’s attention after Altman’s counsel informed her that he would seek its admission. 

Despite the Court’s suggestion at the pretrial conference, the parties had not agreed to a 

stipulation stating that firefighters are authorized to use force to control a scene and are 

authorized to give orders at a scene. Tr. Trans. 93:10–17. Altman’s counsel represented, and 

Smith’s counsel made clear, that a stipulation could not be reached because Smith’s counsel 

disputed the applicability of the ordinance to this situation and required a ruling from the Court. 

Id. 94:19–23, 96:4–101:23. The Court found the ordinance operated as state law, which allowed 

Altman to act under color of law for federal jurisdictional purposes. Id. 102:1–3. 

The Court then explained:

What will come in is the ordinance, to the extent that I’m not going to allow in the 

specific ordinance itself but to establish for the jury that he had arrest powers in 

that particular scene. That way then the jury understands that he had the power to 

use force, and the question then becomes: Is it excessive force? Was the force 

used in this situation reasonable or unreasonable? That is why we’re here. 

Under Thompson, you cannot argue that he acted in conformity with a general 

order or anything else to show that it was reasonable. That’s what Thompson 

6
says. You can’t use the fact that the law authorizes something to prove that it was 

reasonable. But by the same token, Thompson does not state that you can’t let the 

jury know that someone has the authority to use force. So that will be the ruling. 

Id. 102:4–17. As the context of the Court’s comments makes clear, Altman could present 

evidence that he had arrest powers and the authority to use force, although the Court would not 

allow presentation of the text of the ordinance itself. When Altman’s counsel expressed the 

concern that if Altman stated that he authority at the scene, he could then be cross-examined on 

the issue and it might appear that he did not, in fact, have authority, the Court again suggested 

that the parties craft a stipulation that stated that Altman’s had authority to use force to control 

the scene. Id. 102:18–103:8. Smith’s counsel resisted such a stipulation in order to preserve 

objections for appeal. Id. 103:9–106:5. 

The Court ultimately held:

Altman can be asked about whether he issued a direct order, and he will say 

whatever it is that he’s going to say. I do not want any argument with him about 

whether he has that authority by virtue of an ordinance or by virtue of anything 

else. It will just be a given that he issued the order at the scene. If plaintiffs start 

challenging him on his authority to issue the order, then the ordinance comes in. 

Id. 111:2–8. Altman’s counsel asked: “So there would be nothing explicitly informing the jury 

that he has the authority to issue such an order?” Id. 111:14–16. And the Court responded: 

He can be asked that it’s his understanding, right, that he’s permitted to issue an 

order at the scene. He can be asked about whether he’s issued orders previously 

at scenes. I don’t want, you know, a whole line of questioning about that, but you 

can ask a few questions to establish that, yes, he issued the order, that he’s issued 

orders previously at other rescue scenes, and we’re going to leave it at that.

Id. 111:17–24. Altman’s counsel then asked, “So the source of the authority is out?” Id. 111:25.

And the Court stated, “The source of the authority is out. The fact that he has authority is in.” 

Id. 112:1–2.

7
Two days later, during the cross-examination of Smith, defense counsel requested and 

was given leave for a limited line of questioning on Smith’s state of mind as to whether he 

believed that he had to obey Altman’s order at the scene. The Court ruled, in relevant part:

What I don’t want to do is get into this sideshow of who has control over the 

scene. That’s what I don’t want to do because I don’t think that that is relevant 

and it’s going to confuse the jury. However, what he did, what the plaintiff did in 

response to receiving an order is relevant in terms of what Captain Altman then 

did or what a reasonable person in Captain Altman’s shoes would have done to 

someone to whom he’s given an order three or two times, however many times it 

is, and the person hasn’t responded. That’s relevant. 

. . . . 

I’m going to allow in a limited line of questioning which would go to his state of 

mind, so not the fact—we’re not going to get into litigating this battle about who 

had authority over the scene, right? It’s what he believed at the time. . . . This is 

what your question is going to be: You did not obey Captain Altman’s order to 

get the fuck back because you didn’t think that Captain Altman could give you 

that order. You’re staying away from authority, control of the scene, or anything 

else. Then he’s going to say yes or no.

Id. 435:2–10, 445:3–7, 20–25. 

C. The Propriety of the Court’s Exclusion of the Ordinance

Altman first argues that the Court erred in excluding the ordinance under Thompson. In 

Thompson, the Seventh Circuit affirmed the trial court’s exclusion of Chicago Police Department 

General Orders pertaining to the use of force, finding that such guidelines were not a reliable 

gauge of the reasonableness of an officer’s use of force and therefore were irrelevant to the jury’s 

decision of whether the officer’s actions were objectively reasonable under the Fourth 

Amendment. 472 F.3d at 455. In upholding the exclusion of this evidence, the Court further 

explained, 

this court has consistently held that 42 U.S.C. § 1983 protects plaintiffs from 

constitutional violations, not violations of state laws or, in this case, departmental 

regulations and police practices. In other words, the violation of police 

8
regulations or even a state law is completely immaterial as to the question of 

whether a violation of the federal constitution has been established.

Id. at 454 (citations omitted) (internal quotation marks omitted). The Court’s refusal of Altman’s 

Proposed Jury Instruction 29 restating the municipal ordinance giving certain firefighters arrest 

powers and the authority to issue orders and control certain scenes was directly in line with 

Thompson, which found a similar guideline to be irrelevant to an excessive force inquiry. See id.

at 455 (“[W]hether [the officer’s] conduct was either good police practice or a violation of 

Illinois law was immaterial to whether he violated the Fourth Amendment.” (second alteration in 

original) (internal quotation marks omitted)). The exclusion of this jury instruction was not error

and the Court will not grant a new trial on this basis.

Altman acknowledges the holding of Thompson, but argues that he sought admission of 

the ordinance to show the fact that Altman had the authority to give orders and make arrests and 

that Smith was subject to those orders, which was relevant to whether Altman acted reasonably 

in using force to ensure compliance with his orders. Doc. 185 at 8. This skirts very close to 

using the ordinance to show that because Altman had authority to arrest and give orders at the 

scene, his use of force was reasonable. But in any event, the Court did not categorically 

exclude—either at the pre-trial conference or in the motions in limine—any evidence of 

Altman’s authority to give orders and make arrests at the scene. Rather, the Court repeatedly 

suggested that the parties stipulate to that authority. When such a stipulation was not reached, 

the Court allowed evidence of Altman and Smith’s actions—that Altman gave an order, that he 

routinely gave such orders at similar scenes, that Smith did not obey that order—and Smith and 

Altman’s state of mind and reactions—that Altman believed he had the authority to issue such 

orders, that he expected individuals on the scene to obey his orders, and that Smith did not obey 

Altman because he did not believe he had the authority to issue orders to him. While excluding 

9
the source of Altman’s authority as irrelevant to the excessive force inquiry, the Court held: 

“[t]he fact that he has the authority is in.” Tr. Trans. 112:1–2. Furthermore, the jury was 

instructed that a firefighter could use reasonably necessary force in performing his duties. Doc. 

135-4 at 24.

Altman argues that the culmination of the Court’s rulings placed him in a “no-win” 

situation in which he was allowed to communicate to the jury only his subjective belief in his 

own authority, without informing them that he was authorized to give orders and make arrests, 

that he was authorized to use force to ensure compliance with his orders, and that Smith was 

subject to those orders. Doc. 185 at 8. Altman argues that this “severely diminished the 

reasonableness of his subsequent actions” in the jury’s mind and made it appear that he did not 

actually have that authority. Id. at 10. Altman argues that although the Court stated, “[t]he 

source of the authority is out. The fact that he has authority is in,” the Court later limited Altman

to evidence only of his own subjective belief. Doc. 213 at 3 n.1. That mischaracterizes that 

particular colloquy. Altman’s counsel asked: “Can I ask him if he expects people on the scene to 

obey his orders?” Tr. Trans. 112:1–2. To which the Court replied:

The Court: So it would be that he had the authority to issue orders, and I don’t 

know that it’s relevant as to whether he expected, that he himself 

expected other people to follow the orders. . . . But I don’t think 

that what he himself expected other people to do is relevant, and 

you can argue later that a reasonable officer who issues an order 

would expect that people follow the order. 

Counsel: I think you did say, just to clarify, that it [sic] can say that he 

believed he had the authority to give such an order.

The Court: Yes.

Counsel: Okay. As far as that goes, that’s it.

The Court: Okay.

10
Counsel: It’s not everything we wanted, but it’s fine.

Tr. Trans. 112:18–21, 113:6–17. The Court did not categorically disallow evidence of Altman’s 

authority and did not limit Altman to his subjective belief in that exchange. Rather, it reiterated 

that evidence of Altman’s authority to issue orders was permitted and allowed Altman to testify 

that he believed he had the authority to give orders at the scene. Id. 112:18–19, 113:10–13. 

Altman’s counsel acquiesced to this, answering “it’s fine.” Id. 113:17. 

However, even if the Court’s ruling excluding the ordinance and evidence of the source 

of Altman’s authority at the scene was error, Altman does not explain how this error was more 

than harmless. Altman argues only that “[t]here is no question that if the jury had heard that 

Plaintiff Smith defied a lawful order to remove himself from the water’s edge, an order that he 

was required to obey, they may very well have found Altman’s actions to be reasonable.” Doc. 

185 at 13. However, under Thompson, the reasonableness of Altman’s action does not hinge on 

the source of his authority to use force: rather, reasonableness is “not capable of precise 

definition or mechanical application,” but rather requires a jury’s “careful attention to the facts 

and circumstances of each particular case.” 472 F.3d at 454. This means that the underlying 

ordinance, or even a guideline for police use of force, as in Thompson, “sheds no light on what 

may or may not be considered ‘objectively reasonable’ under the Fourth Amendment given the 

infinite set of disparate circumstances which officers might encounter.” Id. Altman was not 

prohibited from introducing evidence of his authority to issue orders, and the jury was instructed 

specifically that firefighters were allowed to use reasonable force in the course of their duties. 

Furthermore, Altman presented evidence that he was the senior officer by the water’s edge and 

that he believed Smith was a firefighter and therefore subordinate to him. Tr. Trans., 185:20–25, 

232:10–18. Altman also revealed on cross that, in his deposition, Smith testified that he did not 

11
believe he was subject to Altman’s authority at the scene. Id. 455:7–14. Without more, the 

Court does not see how this limitation on admission of the ordinance itself prejudiced Altman 

and will not grant a new trial on this basis.

II. Denial of Altman’s Motion to Dismiss the Jury Venire

Altman argues that the Court also erred by not granting his motion to dismiss the jury and 

start a new venire when two jurors were excused after the jury was seated. Altman contends that 

the jury selection became “exceptionally confused” once the two jurors were excused3 and 

therefore effectively denied or at least substantially impaired his right to use his peremptory 

challenges strategically, resulting in an unfair trial. Smith argues that Altman exercised his three 

peremptory strikes and has not shown any prejudice from the jury that heard the case. The Court 

agrees. 

Jury selection began with the Court seating a twenty-eight person venire. After jurors 

were excused for cause but before the parties exercised their preemptory challenges, one 

remaining member of the venire asked to be excused because of a family medical situation. The 

Court subsequently struck him for cause. Each side then exercised its three peremptory strikes 

and the Court seated the first twelve of the remaining jurors, dismissing the remaining 

prospective jurors. 

At that point—before the jury was sworn—three of the twelve approached the bench and 

in sidebar conference with counsel present asked to be excused for family, medical, or workrelated responsibilities. The Court excused two of the three. The parties agreed to excuse the 

first juror after the Court attempted to recall the venire to seat a new twelfth juror after granting 

each side an additional preemptory strike and learned that all the jurors had left the building. 

3 Altman specifically does not argue that the Court’s jury selection process was in error; rather, his argument is 

directed to the immediate aftermath of the recusal of the two jurors at the end. See Doc. 213 at 7.

12

 
The second juror’s medical issue was something the Court agreed to accommodate within a 

normal trial schedule, so that juror remained. When the third juror asked to be excused for workrelated reasons, Altman requested a new venire, asserting that “we feel that given the after-thefact alteration of the jury pool that we’d be prejudiced because we would have done things 

differently in terms of our picks.” Doc. 185-6 at 21. Smith objected to restarting the jury 

selection process and suggested that the Court just dismiss the juror. The Court dismissed the

third juror for cause and swore in the ten-person jury.

As an initial matter, Smith asserts that Altman did not object to the use of his peremptory 

strikes during the jury selection process and therefore this issue is waived. Altman did move to 

dismiss the jury venire based on concerns about prejudice at the time of jury selection, therefore

he has not waived this argument. Cf. Deppe v. Tripp, 863 F.2d 1356, 1363 (7th Cir. 1988) 

(counsel did not object during closing argument and therefore had not preserved issue); Chestnut 

v. Hall, 284 F.3d 816, 819 (7th Cir. 2002) (failure to object to jury instruction waived issue). 

Parties to a civil jury trial have the right to a jury of no less than six members. Colgrove 

v. Battin, 413 U.S. 149, 160, 93 S. Ct. 2448, 37 L. Ed. 2d 522 (1973). And in a federal civil jury 

trial, each side is entitled to three peremptory challenges per 28 U.S.C. § 1870. Peremptory 

challenges have a “long recognized” role “in reinforcing a defendant’s right to trial by an 

impartial jury.” United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S. Ct. 774, 145 L. Ed. 

2d 792 (2000). But as the Supreme Court explained: “we have long recognized, as well, that 

such challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth 

Amendment, peremptory challenges are not of federal constitutional dimension.” Id. 

Altman, like Smith, exercised his peremptory strikes against the entire remaining jury 

venire after the few individuals were excused for cause. Altman had the opportunity to exercise 

13
a strike against every one of the ten jurors who were eventually seated. Furthermore, Altman 

does not object to the Court’s dismissal of the two jurors for cause—indeed, Altman agreed to 

the first dismissal. Rather, he claims that their removal after the jury was seated meant that he 

was denied the ability to “effectively and knowingly exercise” his peremptory challenges. Doc. 

213 at p. 6. Altman does not elaborate about how he would have exercised his strikes differently 

had these two jurors been excused for cause before the peremptory challenges started. Indeed, 

this argument is highly speculative and without more, it is impossible to understand how Altman 

contends he has been prejudiced. See United States v. Patterson, 215 F.3d 776, 782 (7th Cir.

2000) (“Peremptory challenges enable defendants to feel more comfortable with the jury that is 

to determine their fate, but increasing litigants’ comfort level is only one goal among many, and 

reduced peace of mind is a bad reason to retry complex cases decided by impartial juries.”), 

rev’d on other grounds, 531 U.S. 1033, 121 S. Ct. 621, 148 L. Ed 2d 531 (2000). 

Altman states the prejudice to him from the removal of these jurors meant “that the 

remaining jurors had a disproportionately greater influence than they would have otherwise had 

under the circumstances known to Defendant Altman when he exercised his peremptory 

challenges.” Doc. 185 at 15. This is not evidence or even an argument that these jurors were 

biased—indeed in reply Altman concedes that he has not identified a biased juror. Rather the 

argument that a juror’s influence grows the fewer jurors are seated is an argument against a lessthan twelve-person jury, not a reason that this particular jury was biased. Altman had no right to 

a twelve-person jury. See Colgrove, 413 U.S. at 160. And he received a ten-person jury that has 

not been accused of specific bias or prejudice—this is not enough for a finding that the outcome 

of the trial was affected and the verdict should be reversed. See Jimenez v. City of Chicago, 732 

F.3d 710, 715–16 (7th Cir. 2013) (“[A] possible error in administering peremptory challenges 

14
that did not deny an impartial jury does not warrant a new trial.”); Patterson, 215 F.3d at 782 

(“When the jury that actually sits is impartial, as this one was, the defendant has enjoyed the 

substantial right.”); see also Griffin, 694 F.3d at 821 (“Our focus at this stage must be on the 

impartiality of the jury that actually sat, not on the juror who was struck.” (alterations omitted) 

(internal quotation marks omitted)); Osigbade, 195 F.3d at 905 (“The defendant does not argue 

prejudice in his brief, and such an omission is understandable. There is simply nothing in the 

record to indicate that the trial would have been different had Ms. Richardson been a member of 

the petit jury, nor is there anything to indicate that Ms. Lewis’s presence on the jury was adverse 

to the defendant.”).

Altman argues that this “exceptionally confusing” jury process meant that he was not 

able to weed out potentially biased jurors or ones with extreme views. However, Altman had the 

opportunity to exercise his peremptory strikes against the entire jury pool remaining after the forcause strikes and Altman could have stricken any of the ten jurors who eventually sat if he 

suspected one or another of bias. He did not. Altman argues this jury selection process was even 

more confused than that of United State v. Harbin where the district court allowed the 

government to exercise a “saved” peremptory challenge in the middle of a criminal trial. 250 

F.3d 532 (7th Cir. 2001) (vacating and remanding for new trial). The Seventh Circuit described 

those circumstances as “unprecedented” and determined that was not a fair trial because “a shift 

in the balance of peremptory challenges favoring the prosecution over the defendant can raise 

due process concerns.” Id. at 537, 541. No such concerns that one side “unilaterally alter[ed]

the composition of the jury mid-trial” are in evidence here. See id. at 542. Two jurors were 

struck for cause after the jury was seated but before it was sworn. Ten jurors, none of whom 

Altman can accuse of bias or prejudice and all of whom he could have struck, were seated in a 

15
civil trial. Altman has not shown the jury selection process affecting the outcome of his trial. 

His motion for a new trial on this basis is denied.

CONCLUSION

For the foregoing reasons, Altman’s motion for a new trial [184] is denied.

Dated: July 14, 2015 ______________________

SARA L. ELLIS

United States District Judge

16