Appeal from the United States District Court for the Central District of California. D.C. No. CV-93-7064-JSL. J. Spencer Letts, District Judge, Presiding.
Before: Betty B. Fletcher, Melvin Brunetti, and Thomas G. Nelson, Circuit Judges. Opinion by Judge Fletcher.
Gina Shaw appeals the district court's dismissal of her civil rights action against the City of Los Angeles and former and current members of the Los Angeles City Attorney's Office. Shaw, who is African-American, claims that the defendants violated her equal protection rights by exercising a peremptory challenge to remove her from a venire panel on the basis of her race. We have jurisdiction and affirm.
In September of 1993, Shaw was called for jury duty and was among the jurors subjected to voir dire in the case of Tapia v. Gates. Tapia involved claims against the City of Los Angeles and various city officials by Raymond Tapia and Jason Corona, who alleged that an off-duty police officer had violated their constitutional rights by shooting them during a physical altercation. The defendants in the Tapia action were represented by the City Attorney's Office. During jury selection, Deputy City Attorney Cory Brente exercised a peremptory challenge against Shaw. Tapia and Corona objected to the challenge, alleging that it was based on race and therefore violated Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). After a sidebar, District Court Judge Stephen Wilson permitted the peremptory challenge and excused Shaw from the jury.
Judge Wilson subsequently explained his basis for rejecting Tapia's and Corona's Batson objection:
(1) The Court noted that the challenged juror had responded suspiciously slowly and in a somewhat hostile manner when individually questioned by the Court during jury selection;
(2) At sidebar, defendant[s'] counsel informed the Court that, during questioning of the whole venire panel, defendant[s'] counsel had noticed body language of the challenged juror indicating hostility to defendant[s'] position. The Court had not observed the same body language, but defense counsel's observations were consistent with the Court's separate observations, and the Court had no reason to doubt the veracity of defendant[s'] counsel.
Order Regarding Batson Claim and Request for Adverse Inference, Tapia v. Gates, No. CV-91-6735-SVW (C.D. Cal. Nov. 1, 1993).*fn1 Noting that Brente had not challenged another African-American juror, Judge Wilson rejected the plaintiffs' Batson challenge.
Two months after she was excused from the venire panel in Tapia, Shaw sued Brente, the City of Los Angeles, and various former and current employees of the Los Angeles City Attorney's Office under 42 U.S.C. §§ 1983, 1985, and 1986, alleging that the defendants violated her equal protection rights by excluding her from the jury on the basis of her race. The defendants moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss for failure to state a claim upon which relief could be granted. The district court granted the defendants' motions to dismiss, and Shaw filed a timely notice of appeal.
We accept the premise that Shaw has an equal protection right not to be excluded from a jury solely on the basis of her race. When the Supreme Court held in Batson, 476 U.S. at 84-100, that the use of a peremptory challenge in a criminal trial to exclude a venireperson from the jury solely on the basis of his or her race violated the Equal Protection Clause, the Court explained that the practice violated not only the equal protection rights of the criminal defendant by denying him the protection that a jury trial is intended to secure, id. at 85-86, but also the equal protection rights of the excluded juror, id. at 87-88.
In Batson 's progeny, the Supreme Court has made clear that the prohibition against racially discriminatory peremptory challenges is bottomed primarily in the equal protection rights of the potential juror, not the rights of the litigant. See generally Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right is it, Anyway?, 92 Col. L. Rev. 725, 742-50 (1992) (arguing that the primary doctrinal foundation for Batson and its progeny is that raced-based jury selection violates the equal protection rights of excluded venirepersons). For example, in Powers v. Ohio, 499 U.S. 400, 404-16, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), the Court held that a criminal defendant could object to an allegedly discriminatory use of a peremptory challenge, even if the defendant did not share the challenged juror's race. In response to the state's argument that a white defendant could not object to the exclusion of black venirepersons, the Court explained that its decision in Batson "was designed to serve multiple ends, only one of which was to protect individual defendants from discrimination in the selection of jurors." Id. at 406 (quotations omitted). Emphasizing the importance of an individual's right not to be excluded from a jury on account of race, id. at 406-09, the Court stated explicitly that an excluded venireperson has a legal right to bring suit on his or her own behalf, but recognized that the "daunting" barriers to such a suit hindered the venireperson's ability to assert his or her own constitutional rights.*fn2 Id. ...