Smart et al v. City of Wichita, Kansas et al

Filing 282

ORDER regarding jury questionnaire and preliminary jury instructions. Status report due April 15, 2021. Signed by Magistrate Judge James P. O'Hara on 3/18/2021. (amh)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
THE ESTATE OF MARQUEZ SMART,
by Randall Smart and Brenda Bryant
as Administrators of the Estate of
Marquez Smart,

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Plaintiff,
v.
OFFICER AARON CHAFFEE,
in his individual capacity,
Defendant.

Case No. 14-2111-JPO

ORDER
This case is set No. 1 for trial in Wichita on August 16, 2021. The undersigned U.S.
Magistrate Judge, James P. O’Hara, invites input from the parties on two issues. First,
since the parties have requested and the court has agreed to summon a venire of 100 persons
(four times the usual for civil cases in this district), should a jury questionnaire be used to
expedite inquiry during voir dire? Second, since trial is expected to take two weeks, should
the jury, once impaneled, be given substantive instructions (verbally and perhaps in writing
too) on the controlling legal standards, so it can better understand the evidence presented?
With regard to the first question, counsel previously have been informed that the
court is willing to consider a jury questionnaire, provided the parties could agree on the
basic format and almost all of the questions. Stated differently, if agreement can’t be
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reached on these points, the court will simply proceed without a questionnaire and conduct
voir dire the usual way, but still strive to select and impanel a jury in one day or less.
Trial is five months way. But if the parties want to use a questionnaire, they need
to get started on that soon. In addition to developing, negotiating, and finalizing the
questionnaire, enough time must be allocated for the Clerk’s Office to mail the
questionnaire and for the venire to respond (which experience tells us may require at least
one re-mailing), for the responses to be processed by the Clerk’s Office, and for counsel
and any jury consultants to review the processed results. Having conferred with the Clerk’s
Office, the court has determined that any questionnaire in this case would have to be mailed
to the venire by mid-May.
With regard to the second question, the court already has devoted a considerable
amount of time reviewing the parties’ proposed jury instructions and the objections to same
(ECF Nos. 274-76 and 278-79). Not surprisingly, the parties disagree on many points, and
both sides’ proposed instructions tend to be subtly argumentative, or misstate or gloss over
controlling law, and sometimes both. In any event, as counsel have been informed,
historically the court has refrained from giving any substantive jury instructions on the
controlling law at the beginning of trials unless the parties agree on those instructions, i.e.,
absent agreement, the court gives substantive instructions only after all the evidence has
been presented. By the same token, given that the law in this area often confounds even
experienced lawyers and judges, as a practical matter the court is concerned about a lay
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jury’s ability to follow and understand the evidence that will be presented in this case
without clear instructions on the front end. Depending on how the evidence comes in
during trial, and subject of course to the parties’ right under Fed. R. Civ. P. 51 to lodge
objections, attached as Exhibit 1 to this order are the substantive instructions the court
presently plans to give to the jury right before closing arguments.1 The court respectfully
suggests that the parties consider stipulating to these instructions also being given before
any evidence is presented (with some minor modifications as to tense). To be clear,
though, the court is not requiring or inviting any objections to these draft instructions at
this time – that will be deferred until a formal Rule 51 conference is conducted during trial.
By April 15, 2021, the parties must jointly file a status report addressing the two
above-described questions. The report, which must be limited to 10 double-spaced pages,
must have attached to it any proposed questionnaire upon which the parties have agreed
and identify any disagreements about specific questions.
SO ORDERED.
Dated March 18, 2021, at Kansas City, Kansas.
s/ James P. O=Hara
James P. O=Hara
U.S. Magistrate Judge

The “source” information is included in Exhibit 1 for counsels’ benefit, but will
not be included in any instructions provided the jury.
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EXHIBIT 1
INSTRUCTION NO. ___
This instruction summarizes the parties’ claims and defenses. These claims and
defenses may not be considered by you as evidence.
The Plaintiff, the Estate of Marquez Smart, Deceased, acting by and through Randall
Smart and Brenda Smart as administrators of the Estate, claims that the Defendant, Wichita
Police Officer Aaron Chaffee, violated Mr. Smart’s right under the Fourth Amendment of
the United States Constitution to be free from the use of excessive force. Specifically,
Plaintiff claims that on March 10, 2012, Officer Chaffee continued to shoot at and
ultimately killed Mr. Smart after it would have been apparent to a reasonable police officer
that Mr. Smart posed no threat. Plaintiff seeks damages that are claimed to have resulted
from the violation of Mr. Smart’s constitutional rights.
Officer Chaffee denies Plaintiff’s claims and the nature and extent of the claimed
damages. Officer Chaffee asserts he used only objectively reasonable force against Mr.
Smart to eliminate an imminent threat of serious injury to himself and others. Officer
Chaffee further asserts he ceased firing his weapon once it would have been apparent to a
reasonable police officer that Mr. Smart posed no threat.
Source: See Pretrial Order (ECF No. 184 at 9-11); see also Plaintiff’s Proposed Jury
Instructions (ECF No. 276 at 2), and Defendant’s Proposed Jury Instructions (ECF No. 274
at 4).

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INSTRUCTION NO. ______
This case originally involved other claims by Plaintiff against the City of Wichita
and Wichita Police Officer Lee Froese. But those claims are no longer in this case. So,
you may not consider those claims in any way when deciding Plaintiff’s claim against
Officer Chaffee.
Source: See Jury Instruction No. 2 in Thomas v. City of Wichita (ECF No. 129 in
Case No. 13-1040-EFM).

INSTRUCTION NO. ______
Plaintiff brings its claim under a federal statute, that is, Section 1983 of Title 42 of
the United States Code, which is sometimes referred to simply as “Section 1983.” This
statute provides that any person who, under color of law, deprives another of any rights
secured by the U.S. Constitution, shall be liable to the injured party.
Under the Fourth Amendment of the U.S. Constitution, persons have a right to be
free from the use of excessive force by police officers.
Source: See Plaintiff’s Proposed Jury Instructions (ECF No. 276 at 4) (no objection
by defendant) (modified to delete references to “privileges or immunities” and “or laws of
the United States,” as none are relevant to this particular case; further modified to explain
Fourth Amendment right to be free from excessive force).

INSTRUCTION NO. ______
In order for Plaintiff to recover on its Section 1983 claim against Officer
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Chaffee, the following elements must be proven by a preponderance of the
evidence:
1. Officer Chaffee used excessive force against Mr. Smart by continuing to
shoot at Mr. Smart after it would have been apparent to a reasonable police
officer that Mr. Smart was not a threat.
2. Mr. Smart sustained damages as a result of a wound from a shot fired after
it would have been apparent to a reasonable police officer that Mr. Smart
was not a threat.
Source: See Plaintiff’s Proposed Jury Instructions (ECF No. 276 at 5) and
Defendant’s Proposed Jury Instructions (ECF No. 274 at 5).

INSTRUCTION NO. ______
Whether force used by a police officer is excessive is governed by what is known
as the “objective reasonableness” standard of the Fourth Amendment. In determining
whether the force employed was excessive, you must consider the particular use of force
from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.

The basic question, therefore, is whether the officer’s actions were

objectively reasonable in light of the totality of facts and circumstances confronting him,
without regard to his underlying intent or motivation.

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In determining whether the force employed was reasonable, you must allow for the
fact that officers are often forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in
a particular situation. Relevant factors include, but are not limited to, (1) the severity of
the crime at issue, (2) whether the subject poses an immediate threat to the safety of the
officer or others, and (3) whether the subject is resisting or attempting to evade arrest by
flight. Deadly force may be used only if it is reasonably believed necessary to prevent
serious physical harm to officers or others, or to prevent the escape of a suspect that a
reasonable officer would have probable cause to believe committed a crime involving the
infliction or threatened infliction of serious physical harm. A use of force may be justified
by a reasonable belief, even if the officer is mistaken in that belief.
Source: See Jury Instruction No. 12 in Choate v. City of Gardner (ECF No. 248 in
Case No. 16-2118-JWL); Reavis v. Frost, 967 F.3d 978 (10th Cir. 2020). See also
Defendant’s Proposed Jury Instructions (ECF No. 274 at 6-7) (citing Graham v. Connor,
490 U.S. 386, 396 (1989); Wilson v. Meeks, 52 F.3d 1547, 1552-53 (10th Cir.1995); Hinton
v. City of Elwood, Kan., 997 F.2d 774, 780 (10th Cir.1993); Damm v. Sparkman, 609
F.Supp. 749 (D. Kan. 1985); Burr v. Gilbert, 415 F. Supp. 335 (E.D. Wish. 1976); Raley
v. Fraser, 747 F.2d 287 (5th Cir. 1984); Polite v. Diehl, 507 F.2d 119, 142 (3d Cir. 1993);
Street v. Parham, 929 F.2d 537, 538 (10th Cir. 1991); and Samples v. City of Atlanta, 916
F.2d 1548, 1553 (11th Cir. 1990)); Plaintiff’s Proposed Jury Instructions (ECF No. 276 at
5) (modified to delete duplicative material).

INSTRUCTION NO. ______
The term “probable cause” is used in the immediately preceding instruction.
Probable cause exists if facts and circumstances within the officer’s knowledge and of
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which he has reasonably trustworthy information are sufficient to lead a prudent person to
believe that the suspect has committed or is committing an offense an offense involving
the infliction or threatened infliction of serious physical harm.
Source: Defendant’s Proposed Jury Instructions (ECF No. 274 at 8) (citing Miller
v. City of Nichols Hills Police Dep’t, 42 F. App’x 212, 215 (10th Cir. 2002) (modified to
delete duplicative material and references to qualified immunity).

INSTRUCTION NO. ______
You have heard evidence that bystanders were injured during the incident involved
in this case. You may not consider injuries to bystanders in arriving at your verdict. That
is, your verdict must be limited only to the issue of whether Officer Chaffee continued to
shoot at Mr. Smart after a reasonable officer would have been able to react and cease firing
upon recognizing that Mr. Smart posed no threat.
Source: Defendant’s Proposed Jury Instructions (ECF No. 274 at 10) (citing Riggs
v. Cory, No. 09-1105-EFM, Doc. 209, Jury Instruction 16, modified; Plumhoff v. Rickard,
134 S. Ct. 2012, 2022 (2014); and Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973)).

INSTRUCTION NO. ____
During the trial, I informed you that the parties had agreed or stipulated to certain
facts. That stipulation was then read to you. As I indicated to you at that time, these
instructions contain a written copy of those stipulations agreed upon by the parties. The
parties stipulate that:
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1.

Officer Chaffee was acting under the color of state law when he shot Mr.

Smart; and
2.

Officer Chaffee used deadly force against Mr. Smart.

A stipulation simply means that both parties accept these facts as true. There was
no disagreement over these facts, so there was no need for evidence on either side of these
facts. Since the parties have so agreed, you must take these facts as true for the purposes
of this case.
Source: Plaintiff’s Proposed Jury Instructions (ECF No. 276 at 3) (no objection by
defendant).

INSTRUCTION NO. ______
If you find in favor of Plaintiff, you must determine damages. As mentioned
previously, Plaintiff has the burden of proving damages by a preponderance of the
evidence.

Damages means the amount of money that will reasonably and fairly

compensate Plaintiff for the deprivation of a constitutional right allegedly caused by
Officer Chaffee. Damages may not be based on speculation or sympathy. They must be
based on the evidence presented at trial and only that evidence. This does not mean,
however, that compensatory damages are restricted to the actual loss of money. They
include both the physical and mental aspects of injury, even if they are not easy to measure.
A damages award need not be mathematically exact. But there must be enough evidence
for you to make a reasonable estimate of damages without speculation or guesswork.
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You may consider only the following types of damages claimed by Plaintiff:
1. The physical pain and suffering Mr. Smart experienced as a result of Officer
Chaffee’s use of deadly force, including loss of life;
2. The emotional and mental suffering Mr. Smart experienced, including fear,
humiliation, and mental anguish; and
3. Mr. Smart’s loss of the capacity to carry on and enjoy his life’s activities in a way
he would have done had he lived.
If you find in favor of Plaintiff but you find that Plaintiff has failed to prove actual
damages, you must return an award of nominal damages not to exceed one dollar. The mere
fact that a constitutional deprivation has been shown to have occurred is an injury to the
person entitled to enjoy that right, even when actual damages do not flow from the
deprivation.
Source: See Plaintiff’s Proposed Jury Instructions (ECF No. 276 at 6) (citing Eighth
Circuit Manual of Model Jury Instructions § 4.70), and Defendant’s Proposed Jury
Instructions (ECF No. 274 at 13-14).

INSTRUCTION NO. ______
During trial, the court admitted certain evidence for limited purposes. You are
reminded once again that such evidence may be considered only for those purposes.
For example, you have heard evidence concerning how Officer Chaffee was trained.
As you were instructed during trial, how Officer Chaffee was trained may be considered,
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along with all other evidence in the case, as evidence relevant to the reasonableness of his
conduct with regard to Mr. Smart. But how Officer Chaffee was trained is not conclusive
evidence of the reasonableness of his conduct.
Source: See Court’s Omnibus Limine Order (ECF No. 277 at 28-31).

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