United States Court of Appeals
For the First Circuit
No. 05-1026
WILLIAM QUILES, ET AL.,
Plaintiffs, Appellants,
v.
JOAQUIN KILSON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin, Senior Circuit Judge,
and Carter,* Senior District Judge.
Stephen Hrones, with whom Hrones, Garrity and Hedges was on
brief, for appellants.
William P. Breen, Jr., with whom Rebecca L. Andrews and
Murphy, Hesse, Toomey & Lehane were on brief, for appellees.
October 21, 2005
*
Of the District of Maine, sitting by designation.
COFFIN, Senior Circuit Judge. The plaintiffs in this action
– an adult and seven children – claim that police officers
unconstitutionally strip-searched them during a drug-related search
of an apartment in Fitchburg, Massachusetts. At the time of the
incident, the minor plaintiffs ranged in age from six to fifteen
years old, and they either lived in, or were visiting family
members at, the apartment. A jury trial on their civil rights
claims against eight Fitchburg police officers and the City itself
ended with verdicts in favor of all defendants. On appeal,
appellants challenge only the verdict in favor of the City,1
contending that the district court committed reversible error by
giving an incorrect response to a question posed by the jurors
during their deliberations. Our review of the transcript and
relevant law persuades us that the district court acted within its
discretion in crafting its supplemental instruction. We
consequently affirm the court’s judgment.
I. Background
On September 6, 1996, eight Fitchburg police officers went to
the residence of Reynalda Larios pursuant to a search warrant that
1
Plaintiffs alleged that the City was liable for the actions of
the police officers because it had “established a custom of
deliberate indifference to the rights of its citizens by not
adequately training its officers on the proper methods for
executing a search.” See Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978)(municipal liability may be found where a city
policy or custom caused a violation of a plaintiff’s constitutional
rights).
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authorized them to search the premises for illegal drugs and other
contraband. The warrant further directed the officers to “search
any person present who may be found to have such property in his or
her possession or under his or her control or to whom such property
may have been delivered.” The warrant was issued based on an
affidavit alleging that Ms. Larios was selling drugs out of the
apartment. The seven children who are appellants were Ms. Larios’s
daughters and nephews, and the adult was her brother, Ramon Larios,
who shared the apartment with Ms. Larios and her children. At
trial, each of the five female plaintiffs testified to having been
taken into a bedroom, individually, and told by a female police
officer to remove her clothes, including, in most cases, underwear.
Ramon testified that he and his two nephews were searched in the
living room, in the presence of two officers.2
The defendant police officers denied having strip-searched the
plaintiffs. Several officers also testified that the custom or
policy of the Fitchburg Police Department in executing search
warrants was to conduct strip-searches only when individualized
suspicion justified searching for contraband on an individual’s
person. However, Sergeant Joaquin Kilson, who wrote the affidavit
supporting the search warrant, admitted at trial that he had
2
It appears that the boys were taken individually into the living
room, but that Ramon was present during each of their searches.
One nephew, Jose, testified that he was present during Ramon’s
search.
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written a report stating that all persons present in the apartment
at the time of the search were strip-searched. Kilson testified
that he did not, in fact, know that such searches had occurred that
day, but made the assumption “since it was a search for drugs” and
officers frequently strip-search everyone present when drugs are
involved because “[t]hey could be hidden anywhere.”
At the close of evidence, the district court instructed the
jurors and gave them a verdict form that previously had been
reviewed with counsel. Question 5, which in its revised form had
drawn no objections from counsel, stated:
Do you find, by a preponderance of the
evidence, that at the time of the subject
search on September 6, 1996, the City of
Fitchburg had a policy or a custom of strip-
searching all people present when searches
were executed without individualized suspicion
in violation of their constitutional rights to
be free from unwarranted searches?
Verdict Form at 4 (emphasis in original). Later in the day, the
jurors sent the following message to the judge:
The jury respectfully requests clarification
of Question 5. Does this include searches in
all types [of] cases, or just cases similar to
this drug related search?
In a sidebar conference, the judge informed counsel that he
intended to answer the inquiry by stating that “Question 5 relates
to searches conducted pursuant to court-ordered search warrants.”
Plaintiffs’ counsel objected and requested that the court add the
words “in drug cases” at the end of his proposed supplemental
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instruction. Counsel argued that strip-searches are done only in
drug cases and that “there’s been no evidence as to any other type
of search relative to this policy.” Defense counsel objected to
the proposed alternative, stating, among other reasons, that the
amendment would make the question “more narrow than it [previously]
was presented” to the jury and would “focus too much attention to
one particular issue.”
The judge resolved to instruct the jurors as he originally had
proposed and explained his decision as follows:
The reason I’m not going to put . . .
[plaintiffs’ proposed reference to drugs] in
is that drugs have not been emphasized or put
into this verdict form or talked about during
my instructions, and I’m not going to change
the grounds of the instructions at this stage.
I’m going to instruct the Court – instruct the
jury as previously stated.
About thirty minutes after receiving the supplemental instruction,
the jury returned with its verdicts for defendants.
On appeal, plaintiffs assert that the court abused its
discretion in failing to limit the jury’s inquiry regarding city
policy or custom to drug-related search warrants, arguing that all
of the evidence presented at trial related solely to drug searches.
The jury’s confusion, they maintain, could not have been
anticipated and thus could not have been addressed earlier.
Moreover, they argue that the court’s error unquestionably was
prejudicial because the jury’s question indicated that it had found
a policy of unconstitutional strip-searches in drug cases.
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Defendants urge us to review the district court’s response to
the jury under the plain error standard, arguing that plaintiffs’
complaint is really that the court’s original version of Question
5 was overly broad – and that objection was not made in a timely
manner. But they further contend that there was no reversible
error under any standard. They maintain that the court’s
supplemental instruction was fully consistent with the law and the
evidence presented at trial and struck an “appropriate balance
between overinclusiveness and underinclusiveness.”
II. Discussion
The essence of plaintiffs’ position is that it was clear
throughout trial that this case was about a drug-related search,
and that the district court was therefore obliged to dispel the
jurors’ confusion by explicitly instructing them to focus on a City
policy or custom in drug cases.
The problem with that position is precisely the reason why the
jury was confused: although the underlying episode did indeed stem
from a drug investigation, time and time again during the trial the
plaintiffs’ claim against the City was framed in general terms,
without specific reference to the drug-related nature of the search
warrant. The following examples illustrate the predicament:
*Plaintiffs’ counsel to Sergeant Kilson: “What was your
practice when you went into an apartment pursuant to a
search warrant relative to the search of the persons in
the apartment?”
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*Again to Sergeant Kilson: “Do you know . . . what the
regulations are relative to the search of people in an
apartment pursuant to a search warrant?”
*And once again: “Are you aware if the City of Fitchburg
had, at the time of this search, a policy relative to
what searches were to take place when there was a search
pursuant to a search warrant?”
During Kilson’s testimony, plaintiffs’ counsel introduced into
evidence a document titled “Searches with a Warrant,” an excerpt
from the regulations of the Fitchburg Police Department that
generally described appropriate procedures in executing a search.
At least four other defendants were similarly questioned by
plaintiffs’ counsel.3
3
Among the other instances:
Question to Detective William Lawrence: “Now, was there a
policy with respect to strip-searches in the department at the time
of the search . . . ?” On cross-examination, he was asked by
defense counsel: “[W]as it your understanding in 1996 that simply
because a person was present where a warrant was being executed, a
search-all-persons warrant, that they were subject to a strip-
search?”
Question to Officer Jude Chabot: “[I]t was customary, was it
not, when executing a search warrant at a residence to search all
those present, correct?”
Question to Officer Richards: “Well, it wouldn’t surprise you
that people were strip-searched during the execution of a search
warrant, is that correct?”
An exchange with Sergeant Ed Thurston:
Q. Was there a written policy relative to strip-searches by
the Fitchburg police at that time?
A. There was a policy, sir, that contained searches according
to the search warrants.
Q. But that policy didn’t discuss strip-searches, did it?
A. The policy discusses searches that are reasonable and
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In closing argument, defense counsel, who spoke first,
identified one of the remaining questions for the jurors as
follows: “whether the plaintiff has proved that there was a policy
in place or a custom of the City of Fitchburg to strip-search every
person present there when they conducted a search-all-persons
warrant.” In her response, plaintiffs’ counsel urged the jurors to
resolve “the custom question” by looking to Sergeant Kilson’s
testimony that, in writing his report, he had assumed without
knowing that all those present in the apartment had been strip-
searched. Counsel continued:
Why would he assume that they were strip-
searched if there wasn’t a custom of strip-
searching all persons present when executing a
search warrant?
Id.
In addition, the court’s instructions and, as described above,
the jury verdict form, both focused the jury’s attention on a
general policy for executing search warrants without specific
reference to drug cases.4 Moreover, the court’s adoption of such
proper within the four corners of the warrant.
4
In its instructions to the jury, the district court stated:
Now, in this case the plaintiffs have alleged that
the City of Fitchburg had a policy of strip-searching all
persons during warranted searches regardless of
individualized suspicion. In order to find the City
responsible on those grounds, you must find that the
policymaking officials of the city either knew or should
have known of this strip-searching policy or custom.
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an approach was consistent with plaintiffs’ prior written
submissions in the case. The complaint alleged a City custom of
“deliberate indifference to the rights of its citizens by not
adequately training its officers on the proper methods for
executing a search,” and plaintiffs’ opposition to defendants’
motion for summary judgment both repeated that language and noted
that “the training manuals, policies, and procedures of the City of
Fitchburg offer no guidelines concerning strip searches of children
during the execution of search warrants.”
We recognize that this broader framework was not the only
approach suggested by the record. On multiple occasions when
questioning defendants, plaintiffs’ counsel elicited testimony
focusing on drug searches. Officer Tabitha Pepple, for example,
was asked whether there was “any policy of the City of Fitchburg or
the Fitchburg Police Department in existence at the time to strip-
search everybody in a drug search.” Similarly, Sergeant Thurston,
after he was asked the more general questions noted above, was
asked by plaintiffs’ counsel: “So the general policy at that time
was, when there was an entry made pursuant to a warrant to search
for drugs in an apartment, that everyone in the apartment would be
searched?” On cross-examination, defense counsel reiterated the
question: “There is no custom or practice of the Fitchburg Police
Department to strip-search everybody when they execute a drug raid,
was [sic] there?”
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On another occasion, plaintiffs’ counsel engaged in an
extended exchange with Sergeant Kilson about the types of searches
performed during execution of a search warrant, and many of the
questions and answers touched specifically on the circumstances in
drug searches. Kilson observed that, in most instances, anyone in
an apartment where drug dealing was suspected was there either to
buy or sell drugs, “so they were subjected to a search.” He
indicated that strip-searches were common in such cases because
“drugs are very easily hidden. They could be hidden anywhere. We
found drugs in diapers, baby clothing.”
In opening argument, as well, the particular context of this
case was the focus of plaintiffs’ remarks. Counsel told the jurors
that they would hear testimony that police officers routinely
strip-searched children when they suspected drug activity and were
executing a warrant that authorized a search of all persons
present.
Given this evolution of plaintiffs’ case, we think it
unsurprising that the jury sought clarification of its charge.
Indeed, the jurors’ recognition of the ambiguity reflects favorably
on their attentiveness to the task they were assigned. And while
it may be that plaintiffs from the start, and consistently
throughout the proceedings, viewed the issue in its more limited
scope, we cannot say the same for either defense counsel or the
court. Plaintiffs’ repeated general references to the City’s
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training with respect to the execution of search warrants, and
their acquiescence to the district court’s broadly framed
instructions and jury verdict form, reasonably could have led the
court and opposing counsel to understand the challenge to be to a
general practice that, in the present case, simply happened to have
occurred in a drug search.
Putting aside any issue of plaintiffs’ waiver,5 we believe
that what we have described thus far amply demonstrates that the
court’s carefully phrased supplemental instruction was well within
its discretion. See Elliott v. S.D. Warren Co., 134 F.3d 1, 7 (1st
Cir. 1998) (“[T]he necessity for giving a supplementary instruction
to the jury is a matter within the sound discretion of the trial
court.”). Even if the evidence at trial could have supported
limiting the jury’s inquiry to a City policy or custom specifically
in drug cases, the case was not given to the jurors in that
posture, and the district court understandably resisted changing
the boundaries of their deliberation at that point in the
proceedings. Cf. Sheek v. Asia Badger, Inc., 235 F.3d 687, 698
(1st Cir. 2000) (“[J]ury instructions given during the course of
deliberations come ‘at a particularly delicate juncture’ and
require the court to construct its wording carefully.”)(quoting
Testa v. Wal-Mart Stores, Inc., 144 F.3d 173, 175 (1st Cir. 1998)).
5
We find it unnecessary to address defendants’ contention that
plaintiffs failed to preserve their objection to the supplemental
instruction.
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Indeed, in phrasing its response, the district court appears
to have made a conscious effort to preserve plaintiffs’ position as
much as possible, but without re-directing the jury’s focus. The
judge avoided telling the jury expressly that the alleged policy
related to all searches pursuant to warrants and not only to drug-
related searches. Rather, its instruction – “Question 5 relates to
searches conducted pursuant to court-ordered search warrants” –
allowed enough ambiguity to remain that a jury so inclined could
have found that plaintiffs suffered injury from a general search
practice that stemmed from inadequate training, but routinely
occurred only in drug cases. This may well have been the most
appropriate response possible in these circumstances. Cf. Testa,
144 F.3d at 175 (“Careful craftsmanship of a supplemental jury
instruction requires the district court to walk a fine line – the
court can err as easily by overinclusiveness as by
underinclusiveness.”).6
Our case law provides that, in responding to a jury question,
a judge “may either supplement or simply reaffirm the original
instruction,” Elliott, 134 F.3d at 7 (citation omitted). More may
6
We have tried to imagine a way in which the district court could
have responded more substantively, without changing course from the
earlier instructions and consistent with the evidence presented at
trial. One possibility that came to mind was to add to the court’s
brief response a statement that a city policy may be found to exist
even if it is not implemented in every circumstance. Plaintiffs,
of course, did not request such an instruction, and the possibility
of other responses does not in any event make the court’s choice an
abuse of discretion.
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be required “if the jurors’ question clearly indicated confusion
with respect to an important legal concept.” Id. Here, there is
no indication that the jurors lacked understanding of the legal
principles they were asked to apply; rather, they sought to clarify
the relevant factual context. Because that confusion stemmed from
the way in which the proceedings had been conducted up to that
point in the trial, with plaintiffs’ acquiescence, we cannot fault
the judge for declining to give a more expansive response.
Consequently, we find no basis for disturbing the district
court’s judgment.
Affirmed.
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