# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued January 14, 2020 Decided July 7, 2020

Before

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19-2381

ANTHONY M. LEE, Plaintiff-Appellant

,

v

.

HEATH PARSHALL, Defendant-Appellee

. Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:16-cv-00524-wmc

William M. Conley,
J udge

.

O R D E R

The plaintiff Anthony M. Lee filed a suit under 42 U.S.C. § 1983, alleging that the defendant Heath Parshall, a police officer for the City of LaCrosse, used excessive force during Lee’s arrest in violation of Lee’s consti tutional rights. After a trial, the jury found in favor of Parshall, and Lee now appeals.

Lee raises two challenges regarding the tria l. First, he argues that the district

court’s conduct of the voir dire was constitu tionally deficient. In addition, he argues that the district court erred in refusing to allow testimony as to a subsequent excessive force claim against Parshall, which occurred a ye ar after Parshall’s interaction with Lee. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-2381 Page 2

With respect to the voir dire, Lee challeng es the questioning of the jurors as to issues of race, police and crime. Those issu es were significant in the jury selection process because the claim of excessive force aro se in the context of an arrest of Lee, an African-American, by Parshall, a white police officer. Lee challenges the district court’s decision to conduct the questioning of the ju rors during the voir dire, rather than allow the attorneys themselves to question the juro rs. In addition, Lee argues that the court failed to adequately explore the potential jurors’ implicit biases.

The right to an impartial jury does no t require that the attorneys themselves conduct the questioning. The district court has discretion to determine the manner in
which voir dire is conducted, and that ca n include the judge handling the questioning of the potential jurors. Prior to voir dire, L ee presented the court with a list of proposed questions for the potential jurors, includin g twenty-one questions regarding the police, ten questions regarding race, and four questions regarding crime, and many of those questions in each category included additi onal follow-up questions or subparts, which operated to roughly double the total number of questions. The judge agreed to question the jurors as to the attitudes both supportiv e and hostile to the police, and to explore both explicit and implicit bias as to race-re lated matters. The judge did not ask all of the questions proposed by Lee, noting that some of the proposed questions were openended and potentially inflammato ry and that “one of my concerns being that I create a situation of cross-fertilization of prejudice that may arise.”

It is well-established that the trial court has broad discretion as to the form and number of questions to be asked on voir dire. See Ham v. South Carolina , 409 U.S. 524, 527 (1973); Turner v. Murray , 476 U.S. 28, 37 (1986); see also Gardner v. Barnett , 199 F.3d 915, 920–21 (7th Cir. 1999) (en banc) (noting that “ litigants do not have a right to have a particular question asked”). The relevant qu estion under the Constitution is whether the investigation in the voir dire is “’reason ably calculated to resolve the doubts raised about the juror’s impartiality.’” Oswald v. Bertrand , 374 F.3d 475, 481 (7th Cir. 2004) quoting Dyer v. Calderon, 151 F.3d 970, 974–75 (9th Cir. 1998) (en banc). Thus, “[i]n reviewing the voir dire process to determine if it was sufficient to detect or overcome racial bias on the venire, this court asks ‘whether the procedure used for testing impartiality created a reasonable assurance that prejudice would be discovered if present.’” United States v. Jones , 188 F.3d 773, 777 (7th Cir. 1999), quoting United States v. Guy , 924 F.2d 702, 707 (7th Cir. 1991). “We review the district court's selection of questions to be posed at voir dire for an abuse of discretion.” Jones , 188 F.3d at 777.No. 19-2381 Page 3

Our review of the district court’s selection of questions in this case reveals no abuse of discretion. The court questioned th e venire at length as to each person’s potential bias regarding the police, race and cr ime. For instance, the questions as to race

identified that the case in volved an African-American man accusing a white police officer of excessive force, acknowledged the historical struggles in our country involving such scenarios, and asked the potent ial jurors whether it would be difficult for them to serve as an impartial juror. The court emphasized to the jurors that such difficulties with impartiality could go in eith er direction, and that they should respond if it would impact their ability to view the evidence in either way. The court further discussed the potential for implicit bias, an d asked that anyone who was unwilling to examine their own views and how they might be predisposed to view the evidence one way or the other, even unconsciously, to respon d at that time. By allowing the jurors to signal the potential impact of a bias “in eith er direction,” the potential jurors would be able to signal a concern with partiality withou t identifying the nature of their bias – and whether it favored the plaintiff or the defe ndant—thus increasing the likelihood of an honest response. The court also asked the pote ntial jurors whether they or people that they knew had been discriminated against, wh ether for race or other characteristics. The court similarly explored any potential biases relating to the police and crime, with seven questions as to the police and three as to cr ime. Throughout all of the questioning, the judge made it clear to the potential jurors th at if they were uncomfortable responding in open court they could do so at si debar, and some chose to do so.

Lee has not identified any particular qu estions that the court omitted which

would elicit further information as to the bias of any potential juror. Instead, Lee challenges more generally the court’s decisi on to question the jurors rather than to allow the attorneys to ask the questions, the use of close-ended questions and fewer open-ended ones, and the use of terms such as “credibility,” “weigh” and “testimony” in the questions which Lee argues are prob lematic because they are terms that are defined in jury instructions. None of those allegations render the process unconstitutional in this case. The questionin g by the district court, taken as a whole, meets the standard of reasonably extensiv e examination such that the parties would have a basis for an intelligent exercise of the right to challenge, and which would reasonably assure that bias or prejudice would be discovered. Art Press, Ltd. v. W. Printing Mach. Co ., 791 F.2d 616, 618–19 (7th Cir. 1986). As such, the format and nature of the questioning fell within the court’s discretion. Accord ingly, Lee’s constitutional challenge cannot succeed.No. 19-2381 Page 4

Lee’s remaining claim fares no better. He argues that the district court should have allowed testimony as to a subsequent excessive force claim against Parshall, which occurred approximately a year after Parshall’s interaction with Lee. He argues that under Federal Rule of Evidence 404(b), evid ence of wrongs or other acts may be admissible to prove motive, opportunity, inte nt, knowledge and absence of mistake. Lee makes no argument as to how that incident, occurring a year after the one at issue here, could establish any of those states of mind as to the incident with Lee. In fact, he does not even describe the facts underlying that other incident, nor does he provide any argument as to how that incident relates to P arshall’s state of mind in the incident with Lee. Lee merely states in a conclusory mann er that the evidence is probative to show that Parshall had motive, opportunity, intent , knowledge and absence of mistake. Such “perfunctory and undeveloped arguments do not preserve a claim for our appellate

review.” Ewell v. Toney , 853 F.3d 911, 918 (7th Cir. 2017).

Accordingly, the decision of the district court is AFFIRMED.