Kenneth Marshall v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2771
KENNETH MARSHALL,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:12-cv-02591 — Thomas M. Durkin, Judge.
ARGUED JUNE 5, 2014 — DECIDED AUGUST 11, 2014
Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
KANNE, Circuit Judge. On April 8, 2010, Chicago police
officers executing a search warrant on a south side residence
discovered a shotgun in one of the bedrooms. Earlier, plaintiff
Kenneth Marshall, who was present in the residence, had
suggested that the bedroom was his. Marshall is a convicted
felon. Accordingly, the officers placed him under arrest and

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took him into custody on the theory that he constructively
possessed a firearm while it was unlawful for him to do so. In
this 42 U.S.C. § 1983 action, Marshall sued the City of Chicago
and the law enforcement officers involved in his arrest for
damages on the theory that the arrest was not supported by
probable cause.
The matter proceeded to trial, and a jury returned a verdict
in favor of the defendants. Marshall appeals, challenging two
aspects of the jury selection process. First, Marshall argues that
the district court abused its discretion by denying his motion
to excuse a prospective juror for cause on the grounds that she
held a prior belief concerning the possession of firearms by
convicted felons, which Marshall believed made her unfit to
serve. Second, Marshall argues that the district court erred by
refusing to agree to an ad hoc alteration of the parties’ agreed-
upon jury selection procedures for the express purpose of
ensuring that the petit jury would include jurors of a certain
race. Both of Marshall’s arguments are meritless, and we affirm
the judgment of the district court.
I
Marshall’s first argument concerns the district court’s
denial of his motion to excuse a prospective juror for cause. A
fair trial requires an impartial trial of fact: a jury capable and
willing to decide the case solely on the evidence before it.
McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548,
554 (1984). Accordingly, the voir dire process aims to weed out
jurors who hold personal biases so strong that their ability to
act as a neutral arbiter is compromised. Id. If a prospective
juror’s responses to voir dire questioning reveal a bias so

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No. 13-2771 3
strongly as to convince the judge that the juror cannot render
impartial jury service, the judge should dismiss the juror for
cause. United States v. Brodnicki, 516 F.3d 570, 574 (7th Cir.
2008).
That said, prospective jurors regularly come to voir dire
carrying a host of preconceptions about what the law does and
does not require. The sources for these beliefs are legion,
ranging from personal experience, or the anecdotal experience
of friends, to popular music and Law and Order reruns.1
Practically speaking, a preconception about the law cannot
warrant per se disqualification. If it did, we would be hard
pressed to find adequate numbers of qualified jurors.
To account for that reality while also ensuring the
protection of each litigant’s constitutional rights, we have
endorsed a two-step process to assist district judges in
determining which prior beliefs warrant for-cause dismissal
and which do not. First, the court must determine whether a
prospective juror manifests a prior belief that is both material
and “contestable,” meaning a rational person could question its
accuracy. Thompson v. Altheimer & Gray, 248 F.3d 621, 627 (7th
Cir. 2001). If a prior belief is not material to the issues the juror
will be asked to decide, then the existence of that belief
prejudices neither party and the juror need not be excused. If
a prior belief is uncontestable—again, meaning unquestionably
correct—then there simply is no “bias.”
See, e.g., JAY Z, 99 Problems, on THE BLACK ALBUM (Roc-A-Fella Records
1
2003), for one rapper-turned-mogul’s widely disseminated take on the
Fourth Amendment.

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Where a prior belief is both material and contestable,
however, the court must proceed to the second step in the
analysis and determine whether the juror is capable of
suspending that belief for the duration of the trial. Thompson,
248 F.3d at 627. This is usually accomplished by question and
answer. The judge looks for an “unwavering affirmation of
impartiality,” id. (quoting United States v. Garcia, 936 F.2d 648,
653 (2d Cir. 1991)), without which the juror should be excused.
The requirement is satisfied by a juror’s affirmation, for
example, that she can set aside any opinion she might hold,
relinquish her prior beliefs, or lay aside her biases or her
prejudicial personal experiences. United States v. Allen, 605 F.3d
461, 464–65 (7th Cir. 2010) (internal citations omitted).
Ultimately, the decision whether to excuse a juror for cause
rests firmly within the discretion of the district judge, and we
will reverse only where we find an abuse of such. Id. at 464; see
also Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th Cir. 2011)
(abuse of discretion occurs only where “no reasonable person
would agree with the trial court’s ruling.”).
Judge Durkin did not abuse his discretion, here. That is so
for two reasons. First, the prospective juror’s alleged bias was
immaterial. Second, even if it was material, the prospective
juror repeatedly gave unequivocal assurances that she could
set aside her personal beliefs and perform her duties fairly and
impartially within the confines of this case.
The prospective juror’s alleged bias was immaterial because
it had no bearing on the issues to be tried. There is no need to
reproduce the entirety of the relevant exchange between the
court and the prospective juror in this opinion; it suffices to say

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No. 13-2771 5
the prospective juror was clearly under the impression that her
son’s parole conditions prohibited any person from possessing
a firearm in the house. But that is off-point. This case was not
about Marshall’s parole conditions. This case was about
constructive possession. The officers arrested Marshall, a
convicted felon, because they believed he was in constructive
possession of a firearm found in the residence—which would
be a felony regardless of what was contained in the documents
governing his parole. The prospective juror expressed no
opinion on what does or does not amount to constructive
possession of a firearm, nor on when it is or is not a crime for
a convicted felon to possess a gun. Her recollection of her son’s
conditions was therefore immaterial.
That brings us to the second point: Even if the prospective
juror had carried in some misguided preconceptions about the
truly relevant issues, she repeatedly offered Judge Durkin her
“unwavering affirmation” that it would not affect her
judgment in the instant case:
THE COURT: Okay. Okay. And the fact that there were
conditions, nothing about that experience would affect
your ability to be fair in this case?
PROSPECTIVE JUROR: No.
* * *
THE COURT: Okay. And, again, that experience
involving your son, do you have any thoughts yourself
about what conditions of parole should be? And if
there’s any evidence presented one way or the other
about what the conditions are in this case, would the

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6 No. 13-2771
fact that your son was on parole have any effect on
what you’d do in this case?
PROSPECTIVE JUROR: No.
* * *
THE COURT: Well, I guess the question is, if you read
that—there may be an issue in this case about whether
being in a house where there’s a gun may not
necessarily be a violation of parole unless when you’re
in that house you actually possess the gun or you
constructively possess it. None of that was an issue for
you when you read these conditions because you don’t
keep guns in your house?
PROSPECTIVE JUROR: No.
* * *
THE COURT: Okay … the final question I have for you
is the one I asked the other jurors. If you were seated
there at the plaintiff’s table or seated with the
defendants, could you be—knowing yourself and your
background and your educational background and
your work experience, could you be fair? Would you
want yourself as a juror if you were seated out here as
one of the parties in the case?
PROSPECTIVE JUROR: (Nodding head.)
THE COURT: The answer is yes?
PROSPECTIVE JUROR: Yes.
These responses unequivocally confirm the juror’s ability to
disregard her own prior experience and judge the case on the

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No. 13-2771 7
basis of the evidence brought before her. If they are true, they
preclude a challenge for cause. Allen, 605 F.3d at 464–65
(collecting cases). Judge Durkin decided to take the prospective
juror at her word, and, as the trial judge, he was in the best
position to observe her credibility and demeanor. United States
v. Brodnicki, 516 F.3d 570, 574 (7th Cir. 2008). Finding no reason
to second-guess that decision, we defer to the discretion of the
district court.
II
Marshall’s second argument is unusual, and requires some
context. The parties agreed, prior to trial, to try the case to a
jury of eight, which would be selected from a venire of twenty.
The order in which veniremen were called for voir dire was
randomly assigned, with no knowledge of race, by the clerk’s
office. As it happened, of the first fourteen veniremen called,
none of the twelve whom were not excused for cause were
black. At that point, a petit jury of eight (non-black) jurors had
been selected. Counsel for Marshall, who is black, noticed that
three of the six remaining veniremen were also black, and
moved the court to expand the size of the petit jury to ten “in
the hope of getting one of the persons of color on the jury.” The
defendants objected and the court denied Marshall’s request.
Marshall believes that denial was an abuse of—or, more
specifically, a “failure to exercise”—discretion.
“The process of empaneling a jury is firmly entrusted to the
sound discretion of the trial judge and will not be disturbed
absent an abuse of this discretion.” United States v. Beasley, 48
F.3d 262, 266 (7th Cir. 1995) (quoting United States v. Rubin, 37
F.3d 49, 54 (2d Cir. 1994)). There was no abuse of discretion

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here. But even quoting the standard of review is getting ahead
of ourselves. Marshall has suggested no remotely cognizable
legal harm to support this argument. It is established that a
litigant has no right to a petit jury which contains members of
his race or which fairly represents a cross-section of the
community. See Holland v. Illinois, 493 U.S. 474, 477–78 (1990);
United States v. Hatchett, 31 F.3d 1411, 1426 (7th Cir. 1994). So
how could the district court have erred by failing to ensure that
Marshall got one? Marshall did, of course, have a right to a
jury venire composed of a fair cross-section of the community,
Hatchett, 31 F.3d at 1426, but he is not challenging the
composition of the venire. He also had a right to see that no
state actor intentionally excluded any person from the petit
jury on account of their race, Batson v. Kentucky, 476 U.S. 79
(1986), but, again, Marshall is not claiming that any state actor
acted in such a way. In short, it is hard to see the legal basis for
Marshall’s motion, let alone any reason why the district court’s
failure to grant it might amount to an abuse of discretion.
Marshall attempts to side-step this problem by framing the
district court’s denial of his motion as a “failure to exercise”
discretion. Munoz-Pacheco v. Holder, 673 F.3d 741, 745 (7th Cir.
2012) (“Failure to exercise discretion is not exercising
discretion; it is making a legal mistake.”). That is not what
happened. The denial of a motion is just as much an exercise of
discretion as the granting of a motion; were it otherwise, we
would have to reverse every time a trial motion was denied.
For that matter, we would have been faced with a difficult
constitutional question if the district court had granted
Marshall’s motion. Marshall openly asked the court to be “race

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No. 13-2771 9
conscious” in jury selection—specifically, to expand the size of
the jury beyond what the parties originally agreed for the
express purpose of increasing the chances that Marshall would
try his case to at least one black juror. But “the Constitution
prohibits all forms of purposeful racial discrimination in the
selection of jurors.” Batson, 476 U.S. at 88. At least one court
has held that the principle of Batson extends to cover the facts
before us:
In sum, we find that the wrongful inclusion of a juror on
account of race should be treated the same as the
wrongful exclusion of a prospective juror on account of
race. Each situation violates the constitutional command
that jurors be selected pursuant to criteria that do not
take race into account, each deprives a defendant of a
jury that has been “indifferently chosen” in terms of
race, and each involves the exercise of judicial power in
support of a process in which race becomes dispositive
in terms of who can serve on a jury.
Pellegrino v. AMPCO System Parking, 486 Mich. 330, 347–348
(2010) (emphasis original). We need not decide whether we
agree with the Michigan Supreme Court’s conclusion, but we
can confidently say that we would have been more troubled by
the district court’s grant of Marshall’s motion than we are by
its denial.
In conclusion, each of Marshall’s arguments is meritless.
The district court did not abuse its discretion by refusing to
remove the prospective juror for cause, nor did it do so by
denying Marshall’s motion to adjust the agreed-upon size of
the petit jury upwards for the explicit purpose of making more

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room for jurors of a particular race. The judgment of the
district court is AFFIRMED.

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