In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2111 AKIL K. CARTER, PAULETTE H. BARR, and SANDRA K. ADAMS, Plaintiffs-Appellants, v.
CITY OF WAUWATOSA, et al., Defendants-Appellees. ____________________
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:19-cv-1422 — J.P. Stadtmueller, Judge. ____________________
ARGUED APRIL 15, 2024 — DECIDED AUGUST 14, 2024 ____________________
Before KIRSCH, PRYOR, and KOLAR, Circuit Judges. KOLAR, Circuit Judge. In 2018, Defendant-Appellee Patrick Kaine conducted a vehicle stop to investigate a potential rob- bery following a tip from a citizen. Plaintiffs-Appellants Akil Carter, Paulette Barr, and Sandra Adams were in the car stopped by Officer Kaine. During the stop, Officer Kaine handcuffed Carter and put him in the back of his squad car while he spoke with Adams and Barr, who remained in their vehicle. While investigating, Officer Kaine realized that the 2 No. 23-2111
tipster had been mistaken: no robbery had occurred, nor was one in progress. After he confirmed that no criminal activity was afoot, he uncuffed Carter and sent the three individuals on their way. Following the incident, Carter, Barr, and Adams sued Officer Kaine, the other officers involved in the stop, and the City of Wauwatosa, asserting violations of their Fourth Amendment right to be free from unreasonable seizure. The case proceeded to trial, and the jury found in favor of the de- fendants. On appeal, the plaintiffs contest the district judge’s deci- sion to bifurcate the trial, the jury instructions, the exclusion of their police-practices expert, and the judge’s failure to recuse himself. We find no error in those rulings. The plain- tiffs, however, also appeal the district judge’s denial of their challenge to a peremptory strike under Batson v. Kentucky, 476 U.S. 79 (1986). Because the record is insufficient for us to af- firm the district judge’s denial of the Batson challenge, we re- mand for additional findings by the district judge. I. Background In September 2018, City of Wauwatosa police officer Pat- rick Kaine was patrolling when a citizen flagged him down with a tip about a robbery in progress. The citizen told Officer Kaine that he had witnessed a Black man robbing two white women inside a blue Lexus. In response, Officer Kaine drove to locate the Lexus con- taining the women and alleged robber. Once he located the Lexus, he followed it until it began to turn onto a highway onramp. At this point, Officer Kaine initiated a vehicle stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and immediately called for backup because he believed that the robber might No. 23-2111 3
have possessed a firearm. Barr and Adams, both white women, were in the front seats, and Carter, a Black man, was in the back seat, which was consistent with the tipster’s de- scription. Once backup arrived, Officer Kaine ordered Carter to exit the car. Carter exited the Lexus and complied with all of Of- ficer Kaine’s commands. Officer Kaine, with help from an- other officer, handcuffed Carter and placed him in the back seat of a squad car with the door open. Officer Kaine approached the Lexus, where he quickly learned that the tip he received was entirely inaccurate. Barr and Adams immediately told Officer Kaine that there was no robbery in progress. Instead, Barr explained that Carter was her grandson, not a thief, and that the three were on their way to get ice cream. Officer Kaine apologized for the inconven- ience, uncuffed Carter, and told them that they were free to go. Carter had been handcuffed for five minutes. The stop lasted roughly eleven minutes in total. Following the stop, Carter, Barr, and Adams filed suit in state court against Officer Kaine, the City of Wauwatosa, and the other officers who provided backup that day. Their com- plaint asserted claims under 42 U.S.C. § 1983, including vio- lations of their Fourth Amendment rights, municipal liability under Monell v. N.Y. Dep’t. of Soc. Servs., 436 U.S. 658 (1978), state-law negligence, negligent and intentional infliction of emotional distress, negligent hiring, false imprisonment, and violations of the Wisconsin constitution. The defendants re- moved to the Eastern District of Wisconsin. The parties bitterly litigated the case and the district judge set it for trial. In August 2022, the district judge held a final 4 No. 23-2111
pretrial conference. But the parties were unprepared for the conference or for trial, having filed deficient jury instructions and an insufficient verdict form. The district judge continued the trial for a few months so that the parties could confer and file appropriate instructions. Roughly a month before the delayed trial was set to begin, on February 8, 2023, the parties convened before the district judge for another final pretrial conference. At the pretrial con- ference, the district judge determined that the trial would pro- ceed only as to Officer Kaine. Thus, the jury would be asked a single question: whether Officer Kaine possessed reasonable suspicion sufficient to support the Terry stop. At the confer- ence, the district judge also preliminarily excluded the plain- tiffs’ proposed police-practices expert, Brian Landers, stating that he did not believe that Landers’ testimony would be help- ful to the jury because of the limited nature of the trial. The district judge told the parties that he was open to reconsider- ing any of these decisions at trial. Several days later, the plaintiffs moved for reconsideration of the preliminary decisions made at the pretrial conference. The district court denied the motion because, first, it had not made a final ruling on any issues, like jury instructions and the admissibility of expert testimony (including the testimony of Landers), and second, because proceeding as to fewer is- sues—that is, as to reasonable suspicion only—would be the most expedient way to try the case. The district judge noted that other issues could be handled through a Rule 54(b) mo- tion after the trial. So, the trial proceeded, beginning with jury selection in March 2023. At the close of voir dire, the district judge in- structed the parties to exercise their peremptory strikes, No. 23-2111 5
which they did off the record. After that process, plaintiffs’ counsel informed the court that plaintiffs had an objection to one of the defense’s strikes. The court again went off the rec- ord to address the plaintiffs’ objections, which were heard in full and decided at an untranscribed sidebar. The contempo- raneous record does not indicate what type of objection the plaintiffs made, but the trial record later indicated that the plaintiffs had raised a Batson challenge. Two days later, after the jury had been charged and sent to deliberate, the district judge noted that both the plaintiffs and defendants wanted to make a record of what occurred at the untranscribed sidebar following voir dire. Plaintiffs’ coun- sel stated for the record that she had raised a challenge under Batson to the defense’s strike of Juror 10. Juror 10 was a Black woman with a master’s degree who was employed by Mil- waukee County. When Juror 10 was struck by the defense, she was the only remaining Black individual on the venire follow- ing the for-cause excusal of Juror 14, who was also a Black woman. Counsel for plaintiffs stated that after she objected, the court held a sidebar. At the request of both counsel, the judge allowed the parties to make a post-hoc record of the ob- jection, and the following exchange occurred: [DEFENSE COUNSEL]: Plaintiffs are both Cau- casians and persons of color …. The peremptory strike was based on both her master’s degree and her employment as a Milwaukee County Social Service Social Worker …. Our concern in this case [is] … professional testimony regard- ing a claim of emotional injuries. That would be an individual who would be sympathetic. 6 No. 23-2111
THE COURT: All right. And given that one of the plaintiffs’ witnesses was a counselor, I think also is a contributing factor for both sides whether you want the individual or don’t, and so I find for the reasons that the court stated off the record yesterday, that the defense has pro- vided a race-neutral reason for having exercised their peremptory strike. And I also noted for the record that this is not a case in which there is a single plaintiff who hap- pens to be a minority whether Hispanic, Asian, or African American. There are two plaintiffs who are Caucasian, so that effectively neutral- izes the entirety of the applicability of the Su- preme Court’s ruling in Batson beyond the mat- ter of a race-neutral reason for the defense hav- ing exercised one of their peremptory strikes as to Juror Number 10. Following this colloquy, plaintiffs’ counsel also indicated that the district judge had stated off the record that Batson doesn’t apply in civil cases because he had only ever seen it in crimi- nal cases. Counsel cited Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) in support of her position that Batson applies equally to civil cases. The district judge denied the Batson challenge without further comment. After a two-day jury trial, the jury returned a verdict in favor of Officer Kaine, finding that he possessed reasonable suspicion to stop the Lexus and the occupants therein. After the verdict, the district judge issued a written order disposing of the remaining claims and entered judgment in favor of the officers and the City of Wauwatosa, which is not at issue in No. 23-2111 7
this appeal. Plaintiffs appeal only deficiencies related to the pretrial decisions and the administration of the trial. II. Discussion The plaintiffs challenge several of the district judge’s deci- sions on appeal. They argue that the district judge erred in denying their Batson challenge; excluding their police-prac- tices expert, Landers; and failing to instruct the jury on the difference between a Terry stop and an arrest. The plaintiffs also contend that the district judge should have recused him- self and that he improperly granted summary judgment sua sponte in allowing the trial to proceed only as to Officer Kaine and the subject of reasonable suspicion. Finally, the plaintiffs assert that cumulative error requires a new trial. The plaintiffs are correct that the district judge did not properly conduct the Batson inquiry, and we will remand for further factual findings consistent with this opinion. The plaintiffs’ remaining arguments, however, entirely lack merit. We thus affirm in all other respects. A. Batson Excluding “even a single prospective juror on account of race, ethnicity, or gender violates the Equal Protection clause.” United States v. Rutledge, 648 F.3d 555, 558 (7th Cir. 2011) (citing Snyder v. Louisiana, 552 U.S. 472, 478 (2008)) (cleaned up). The three-step Batson process is well-estab- lished. First, the challenger must make out “a prima facie case of purposeful discrimination.” Batson, 476 U.S. at 93–94. The burden at the prima facie stage is low, “requiring only circum- stances raising a suspicion that discrimination occurred, even where those circumstances are insufficient to indicate that it is more likely than not that the challenge was used to 8 No. 23-2111
discriminate.” Lisle v. Welborn, 933 F.3d 705, 714 (7th Cir. 2019). If the district judge proceeds past step one and rules on the ultimate issue of pretext, the question of whether the chal- lenger stated a prima facie case becomes moot. Hernandez v. New York, 500 U.S. 352, 359 (1991). If the challenger makes out a prima facie case, the burden shifts to the striking party to provide a race-neutral explana- tion for the strike. Batson, 476 U.S. at 97. At this second step, the proffered reasons must be “clear and reasonably specific” and “related to the particular case.” Coulter v. Gilmore, 155 F.3d 912, 917 (7th Cir. 1998). If such a reason is provided, the district judge must assess whether the race-neutral reasons provided by the striking party are pretext for racial discrimination. “Step three, at which the trial court weighs the evidence and determines whether the strike’s opponent has proved purposeful dis- crimination, is the heart of the matter.” United States v. Lovies, 16 F.4th 493, 500 (7th Cir. 2021) (cleaned up). The district court must make credibility determinations at this stage. Lisle, 933 F.3d at 715; Morgan v. City of Chicago, 822 F.3d 317, 331 (7th Cir. 2016). The three steps of Batson are analytically distinct, United States v. Rutledge, 648 F.3d 555, 560 (7th Cir. 2011), and “[w]e encourage district courts to follow each of Batson’s three steps in sequence and to develop a comprehensive record as to each step.” Lovies, 16 F.4th at 503. Our cases make clear that a dis- trict judge must proceed to and through the third step if she reaches the first two. See id. at 500; United States v. McMath, 559 F.3d 657, 663–65 (7th Cir. 2009). No. 23-2111 9
We review whether a district judge properly conducted the three-step Batson inquiry de novo but review a district court’s step-three factual findings for clear error. McMath, 559 F.3d at 663; United States v. Watkins, 107 F.4th 607, 619 (7th Cir. 2024). This means we will affirm a district judge’s step-three findings unless we arrive at a “definite and firm conviction that a mistake has been made.” McMath, 559 F.3d at 670. Since the trial judge is in the best position to make factual determi- nations, we only disturb such findings if “the reason given is completely outlandish or there is other evidence which demonstrates its falsity.” United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir. 1998). Batson’s third step requires that the district judge make factual findings on the record regarding whether the striking party’s proffered reason for the strike is pretextual. Snyder, 522 U.S. at 477; Morgan, 822 F.3d at 331. We often refer to this finding as a credibility determination. Rutledge, 648 F.3d at 558 (“Credibility determinations can be made in many ways, and for that reason we treat the district court’s findings at step three as findings of fact.”). Failure to make the step-three credibility determination is a legal error that satisfies any standard of review. McMath, 559 F.3d at 666 n.2. Further, we cannot substitute our judgment for that of the district court— factual findings at Batson’s third step lie “within a trial judge’s province.” Snyder, 522 U.S. at 477 (cleaned up). And while the district judge need not use any magic words in completing the step-three inquiry, he must do more than summarily deny the challenge or merely categorize the striking party’s reason as race-neutral. McMath, 559 F.3d at 666; Rutledge, 648 F.3d at 560. 10 No. 23-2111
In cases where the district judge fails to appropriately pro- ceed to or conduct Batson’s third step, we have consistently remanded for additional findings by the district judge. E.g., United States v. Watkins, 107 F.4th at 621–22; Rutledge, 648 F.3d at 559; McMath, 559 F.3d at 666. This is in part because if the district judge fails to state his findings for the record, there is a “void that stymies appellate review, gives us no finding of fact to which we might defer, and ultimately precludes us from affirming the denial of the Batson challenge.” Morgan, 822 F.3d at 331. A few examples are worth exploring. We begin with United States v. Taylor, 509 F.3d 839 (7th Cir. 2007). In Taylor, the defense made three Batson challenges to the prosecution’s strikes. Id. at 843. While the district court found that two of the strikes were not racially motivated after assessing the prosecutor’s credibility, he “overlooked this last step with re- spect to one potential juror.” Id. As to that third juror, we were “unable to come to any conclusion … because the district court did not make a record of its credibility determination at the third stage of the Batson inquiry.” Id. at 851. Accordingly, we remanded the case to the district court “to supplement the record with its reasons for denying the Batson challenge” with respect to a single potential juror. Id. So, too, in McMath. There, the district judge summarily de- nied the defense’s Batson challenge. Id. at 663. The prosecutors argued that this flat denial should be treated as “’implicit findings’ on whether the prosecutor’s race-neutral reason was credible.” Id. at 664. We rejected this argument. Applying the Supreme Court’s decision in Snyder v. Louisiana, 552 U.S. 472 (2008), we held that because the district judge “made no find- ings regarding the prosecutor’s race-neutral demeanor-based No. 23-2111 11
justification of the strike … we cannot presume that the pros- ecutor’s race-neutral justification was credible simply because the district judge ultimately denied the challenge.” Id. at 666. The district judge’s failure to make such findings “leaves a void in the record that does not allow us to affirm the denial.” Id. While both Taylor and McMath involved silence by the dis- trict court at step three, we have also remanded in cases where the district judge made insufficient findings, or, as here, merely repeated the striking party’s facially neutral reason for the strike. Take, for example, United States v. Rutledge, 648 F.3d 555 (7th Cir. 2011). In Rutledge, the district judge denied a Bat- son challenge in the following way: “Those [reasons offered by the prosecution for the strike] are both nonracial-related reasons. So I’m going to excuse [the stricken juror].” Id. at 558. In remanding for further findings, we found it “disturbing[]” that during the Batson discussion, “the district court never once credited the demeanor-based reason for the prosecutor’s peremptory strike.” Id. at 560. Rather, the court “merely re- peated that the demeanor-based justification was a ‘non-racial reason.’” Id. More recently, we addressed a similar situation in United States v. Watkins, 107 F.4th 607 (7th Cir. 2024). In Watkins, the district judge heard the prosecution’s race-neutral reasons (that is, conducted step two), and stated for the record that he “will find those are race-neutral reasons.” Watkins, 107 F.4th at 621. He said nothing more, and like in Rutledge, we re- manded for additional findings. Id. In this case, we must analyze whether the district judge properly conducted the Batson inquiry. The plaintiffs dispute 12 No. 23-2111
the credibility of the defendants’ proffered reason for striking Juror 10, so we focus solely on Batson’s third step. Based upon the record before us, it is difficult to discern whether the district judge properly completed Batson’s third step. In one exchange at oral argument, defense counsel told us that he did not believe that the district judge had con- ducted the third step of the analysis on the record. Ultimately, we agree that the district judge halted his Batson analysis too early, completing the required step two finding but failing to continue forward to step three. After the jury was discharged, plaintiffs’ counsel stated for the record that she believed Juror 10—a social worker—had been struck because she was the final Black member of the ve- nire panel. Defense counsel had lodged a preemptory strike based upon Juror 10’s employment as a counselor who worked for Milwaukee County, indicating that the defend- ants believed Juror 10 would be unusually sympathetic to one of the plaintiffs’ expert witnesses, a counselor, who testified to the emotional damage that Carter suffered because of the stop. To complete the Batson inquiry, the judge needed to decide whether the defense’s proffered reason for the strike was pre- textual. Rutledge, 648 F.3d at 558–59. But he didn’t do so. In- stead, he said: And given that one of the plaintiffs’ witnesses was a counselor, I think also is a contributing factor for both sides whether you want the indi- vidual or don’t, and so I find for the reasons that the court stated off the record yesterday, that No. 23-2111 13
the defense has provided a race-neutral reason for having exercised their peremptory strike. We have previously stated that simply classifying the striking party’s “justification” as “race-neutral … is not enough” to constitute a step three Batson finding. Rutledge, 648 F.3d at 560; see also Lisle, 933 F.3d at 715. Batson’s third step “requires the court to weigh the evidence and determine whether the [strik- ing party’s] nondiscriminatory reason for the strike is credi- ble.” Rutledge, 648 F.3d at 559 (emphasis in original). And “Batson cannot operate properly if the second and third steps are conflated.” Id. This is why we have encouraged district courts to take Batson’s steps in order such that we can easily discern a step-two finding from a step-three one. Lovies, 16 F.4th at 503. Here, a remand for the step-three analysis is nec- essary. We have considered whether we can take the district judge’s initial comments, including those about Juror 10’s background as a counselor, as the findings necessary to un- derpin a third-step analysis. This reading is difficult for us to square, since the district judge concluded with saying “and so I find”—for the reasons stated off the record—”the defense has provided a race neutral reason.” The district judge signaled to the parties that he was providing reasons to support the finding of a race-neutral rea- son and then stopped short. And the most natural reading of the second half of the district judge’s comment classifying the defense’s reason as “race-neutral” suggests that the judge was not making any credibility determinations. The district judge did not indicate whether he believed the defense, whether he found them credible, or whether, in his discretion, he thought the counselor could be unusually sympathetic to one of the 14 No. 23-2111
plaintiffs’ witnesses. See Lisle, 933 F.3d at 715. Instead, he par- roted defense counsel’s proffered reason and correctly found it to be race-neutral. But determining whether the defense provided a race-neutral reason is not the point of step three of the Batson analysis. Rather, it is the point of step two. This issue is made more difficult because the judge heard the initial objection at an untranscribed sidebar, which is in- consistent with our request that district judges develop “a crystal-clear record … for the benefit of all, including to facil- itate appellate review.” Lovies, 16 F.4th at 503–04. After the sidebar, the district judge allowed the parties to make a post- hoc record of the objection. Despite the parties’ request that the district judge make a record of the Batson challenge, on appeal we have only the brief colloquy above. Either there was more to the district judge’s analysis that he decided not to put on the record, or the step-three analysis was never com- pleted. Either way, the record before us does not allow us to affirm the judge’s denial of the Batson challenge and we must remand for additional findings, as required by our precedent. The colloquies in Rutledge and Watkins, discussed above, bear striking similarity to the one here. In this case, like in Rutledge and Watkins, the district judge merely repeated the rationale offered by the defense. Further, as in Rutledge and Watkins, counsel did not request that the judge put any addi- tional step-three analysis on the record. 648 F.3d at 560. We therefore see no reason to depart from our well-settled prac- tice of remanding for further findings by the district judge. See Watkins, 107 F.4th at 621. That this case is a civil one does not change our analysis. See Lisle, 933 F.3d at 715 (remanding for further findings in a civil case when “the judge never took the No. 23-2111 15
final step of making a finding on the spot about the credibil- ity” of the striking party’s reasons). Accordingly, we remand the case for the district judge to properly complete the three-step process under Batson. As in Watkins, we express no opinion as to the outcome of the cred- ibility issues or factual findings, which are “matter[s] for the district court to consider in the first instance.” Watkins, 107 F.4th at 621. Depending on the outcome of a properly con- ducted Batson process, placed upon the record to allow for ap- pellate review, the judge may order a new trial, reopen the period for dispositive motions, or manage this case as he oth- erwise sees appropriate. It would have been best if all of the district judge’s relevant comments appeared in the record. See Lovies, 16 F.4th at 503. In this case, both parties asked the district court to make a rec- ord, and the district judge addressed the Batson issue in the limited manner discussed above. When reviewing Batson claims where there is a gap in the record that does not allow us to determine that the proper steps were followed, or where the necessary findings were not made, we remand for further findings. Morgan, 822 F.3d at 331. And that makes sense be- cause Batson is not merely about the parties’ rights. Rather, Batson also implicates the potential juror’s Equal Protection rights. The district judge was understandably frustrated by the parties’ litigation conduct. But district judges have a unique responsibility in properly administering Batson in part be- cause potential jurors are not represented by counsel who can ensure that their Equal Protection rights are not violated. That job “rests first and foremost with trial judges.” Flowers v. Mis- sissippi, 588 U.S. 284, 303 (2019). “Other than voting, serving 16 No. 23-2111
on a jury is the most substantial opportunity that most citi- zens have to participate in the democratic process.” Id. at 293. Creating a “comprehensive record as to each step” of a Batson inquiry for appeal helps courts fulfill the Supreme Court’s mandate that we do not allow Batson to “backslide[].” Lovies, 16 F.4th at 503; Flowers, 588 U.S. at 301. We also briefly address the plaintiffs’ contention that the district court erred in excusing Juror 14. The court excused Ju- ror 14, a Black woman, for cause after she told the court that she would need to find alternative care for her elderly brother, and plaintiffs’ counsel objected. To the extent that the plain- tiffs appeal their challenge to the excusal of Juror 14 under Batson, that argument was not raised below, and we therefore decline to address it. Nothing in the district court record shows that the plaintiffs raised a Batson challenge to Juror 14. See Batson, 476 U.S. at 93–94 (requiring a “prima facie case of purposeful discrimination”). A few final points in closing. Batson applies in civil cases. Flowers, 588 U.S. at 301 (citing Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991)). And a party of any race may make a Batson challenge, including when the party challeng- ing the strike and the stricken juror are of different races. Id. So the fact that two of the three plaintiffs in this case are white women does nothing to change the applicability of Batson, contrary to the district judge’s statements on the record. B. Bifurcation The plaintiffs’ remaining arguments regarding the district judge’s decisions before and during the trial lack merit. We take each in turn, beginning with the plaintiffs’ contention No. 23-2111 17
that the district court improperly sua sponte granted summary judgment. Before the trial began, the district judge decided that the trial would be best administered by answering the question of reasonable suspicion as to Officer Kaine—the officer who initiated the stop—before addressing any other issues. The plaintiffs characterize the district court’s decision as an imper- missible sua sponte grant of summary judgment as to the other claims and the remaining defendants, which they believe should have gone to trial. But in doing so, they misunder- stand the nature of the district court’s order. District judges have substantial discretion in administer- ing trials. Testa v. Village of Mundelein, Ill., 89 F.3d 443, 445 (7th Cir. 1996). And Federal Rule of Civil Procedure 42 explicitly allows district courts to bifurcate claims for trial “for conven- ience, to avoid prejudice, or to expedite and economize.” Fed. R. Civ. P. 42(b). In this case, the district judge bifurcated the trial such that it would first address the central issue in this case: whether Officer Kaine possessed reasonable suspicion when he stopped the plaintiffs. In reviewing a decision to bi- furcate, “[w]e need not decide whether this was the best or even the only good way of trying this case.” Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117, 1128 (7th Cir. 1999). Our task is much simpler: we review the district judge’s decision for abuse of discretion only. Volkman v. Ryker, 736 F.3d 1084, 1089 (7th Cir. 2013). The plaintiffs asserted that the tip received by Officer Kaine was insufficient to confer reasonable suspicion suffi- cient to justify the stop. Consequently, the jury’s determina- tion on the existence of reasonable suspicion went to the heart of every claim. And if the jury found no underlying 18 No. 23-2111
constitutional violation (as it did), the plaintiffs’ Monell claim could not survive. Trying the question of reasonable suspi- cion first informed whether further proceedings were re- quired at all. See, e.g., Treece v. Hochstetler, 213 F.3d 360 (7th Cir. 2000). As such, the district judge did not abuse his discre- tion in trying this critical issue first. C. Exclusion of Expert Testimony The plaintiffs next argue that the district court erroneously excluded the testimony of their police-practices expert, Brian Landers, who would have testified as to whether the officers conducted the stop in a manner consistent with their training. We disagree. We review de novo whether the district judge applied the appropriate legal standard in admitting or excluding expert testimony, and we review for abuse of discretion the ultimate admissibility decision. Florek v. Village of Mundelein, Ill., 649 F.3d 594, 602 (7th Cir. 2011). Because the plaintiffs do not ar- gue that the district judge misapplied the applicable legal standard, our review is for abuse of discretion only. A district judge abuses his discretion when no reasonable person could agree with his decision. Downing v. Abbott Labs., 48 F.4th 793, 809 (7th Cir. 2022). In this case, the district judge focused the trial on the ques- tion of reasonable suspicion. That inquiry required explora- tion of whether Officer Kaine could “point to specific and ar- ticulable facts which, taken together with rational inferences from those facts, reasonably warrant [an] intrusion.” United States v. Pace, 48 F.4th 741, 749 (7th Cir. 2022) (quoting United States v. Eymann, 962 F.3d 273, 282 (7th Cir. 2020)). To decide whether reasonable suspicion existed, the jury did not need No. 23-2111 19
to determine whether the method of conducting the stop was consistent with best police practices or the City’s procedures. Thus, Landers would not have had anything “useful to say about the particular circumstances at issue.” Downing, 48 F.4th at 810. “[E]xpert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.” Daub- ert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993). The district judge did not abuse his discretion in excluding Landers’ testimony. Further, whether Officer Kaine possessed reasonable sus- picion sufficient to stop the Lexus was not a particularly com- plicated inquiry. We are convinced that the jury needed no help from an expert in conducting it. Officer Kaine’s suspicion was based on a citizen’s tip that a robbery was in progress. Officer Kaine investigated this tip by stopping the Lexus. Whether this tip gave rise to reasonable suspicion is “a matter of everyday experience,” where “expert testimony is less likely to be admissible.” Florek, 649 F.3d at 602–03 (citing United States v. Hanna, 293 F.3d 1080, 1085–86 (9th Cir. 2002)). Given the focus of the trial, we cannot conclude that the dis- trict judge abused his discretion in excluding Landers from testifying. D. Jury Instructions The plaintiffs also contend that the district judge erred by failing to instruct the jury on the difference between a Terry stop and an arrest and by failing to instruct the jury that open carry of certain firearms in Wisconsin is not a crime. Both con- tentions lack merit. Our review of the district judge’s jury instructions is def- erential. We analyze the instructions “as a whole to determine 20 No. 23-2111
if they accurately state the law and do not confuse the jury.” Doornbos v. City of Chicago, 868 F.3d 572, 580 (7th Cir. 2017). A district judge is not obligated to “describe all valid legal prin- ciples” in his instructions. EEOC v. AutoZone, Inc., 809 F.3d 916, 923 (7th Cir. 2016). We will reverse “only if the instruc- tions in their entirety so thoroughly misled the jury that they caused prejudice.” Downing, 48 F.4th at 810 (citation omitted). The plaintiffs argue that the district judge should have in- structed the jury on the difference between a Terry stop and an arrest. They are mistaken. On February 1, 2023, the parties submitted their proposed jury instructions, and the plaintiffs included Seventh Circuit Pattern Civil Jury Instruction 7.06, which deals with Terry stops, along with the additional language provided in Com- ment C to Instruction 7.06. Comment C provides: In most situations, the court will decide whether the seizure was sufficiently short or unintrusive to constitute a Terry stop. If the court finds the seizure went beyond a Terry stop, the court should give Instruction 7.07, for false arrest. If there is a factual dispute as to whether an inves- tigatory stop or an arrest took place, the court may need to give both sets of instructions and advise the jury to apply one or the other based on its resolution of the disputed facts. See Committee on Federal Civil Jury Instructions of the Sev- enth Cir., Pattern Civil Jury Instr. 7.06 cmt. C. As discussed below, the district judge did not ultimately instruct the jury using the language in Comment C. No. 23-2111 21
At 9:00 p.m. on March 12, 2023, the day before trial, the plaintiffs submitted a proposed supplemental jury instruction that outlined various factors the jury could consider in deter- mining whether the plaintiffs were arrested. They also sub- mitted an objection to the court’s proposed instructions— which were provided to the parties at the February 8 final pre- trial conference—to the extent that they did not instruct the jury on the difference between a Terry stop and an arrest. The next day, the district judge admonished plaintiffs’ counsel, stating: Again, with all due respect Ms. Bertrand, if you or any lawyer looked at the docket sheet in this case, you talk about obfuscations and stream of consciousness and lack of professionalism in re- sponse to this Court's order, and I specifically am referencing the matter of the summary judg- ment debacle and now just last night at 9:00 fil- ing changes in jury instructions. Those are not going to go anywhere because you did not meet and confer, and you had every day since Febru- ary 8th to do just that, and you chose a different path, and there are consequences seriously. Se- rious consequences I might add. First, we do not believe the district court erred in refusing to consider the late-filed supplemental instruction. District courts have “considerable discretion in interpreting and ap- plying their local rules” and we review the decision to enforce a rule “for an abuse of discretion.” Frakes v. Peoria Sch. Dist. No. 150, 872 F.3d 545, 549 (7th Cir. 2017). As the district judge noted, plaintiffs’ counsel had nearly a month to meet and con- fer with opposing counsel regarding the supplemental 22 No. 23-2111
instruction. She did not do so. Consequently, the judge de- cided that he would not consider the supplemental instruc- tion. We cannot conclude that the district judge abused his discretion in this situation. Second, we also disagree that the district judge was obli- gated to instruct the jury on the difference between a Terry stop and an arrest. For a Terry stop, the “detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” United States v. Bullock, 632 F.3d 1004, 1015 (7th Cir. 2011). In this case, though, the district judge made clear that the only issue before the jury was reasonable suspicion. In these circumstances, we cannot agree that the district judge abused his discretion in failing to give an in- struction on the difference between a Terry stop and an arrest. Additionally, the instruction that the district judge did give on Terry stops was this Circuit’s pattern instruction, which is “presumed to accurately state the law,” United States v. Freed, 921 F.3d 716, 721 (7th Cir. 2019), and the plaintiffs do not ar- gue that the instruction given misstated the law or misled the jury. We thus see no reason to fault the district judge’s deci- sion. Finally, the plaintiffs contend that the district judge should have instructed the jury on the finer points of Wiscon- sin firearms law. Yet again, we reject the plaintiffs’ contention. At trial, the plaintiffs sought to argue that Officer Kaine could not have possessed reasonable suspicion based on the allegation of Carter having a gun because possessing certain firearms in vehicles is not illegal in Wisconsin. During the charge conference, the parties stipulated that the possession of certain types of firearms in vehicles is not a crime in Wis- consin. The district judge told the parties that he did not No. 23-2111 23
believe an instruction on Wisconsin’s firearms law was neces- sary, but that the plaintiffs could argue that point to the jury during their closing arguments. Just as above, we cannot con- clude that the failure to give this instruction was reversible error. The district judge permitted the plaintiffs to argue that possession of a firearm in a car was not necessarily criminal during closing argument. We consider the instructions, “along with all of the evidence and arguments,” to determine whether the jury was misled. AutoZone, 809 F.3d at 923; see also United States v. Choiniere, 517 F.3d 967, 972 (7th Cir. 2008) (no error when the jury instructions accurately stated the law and defense was permitted to argue tangential points in closing). We see no need for reversal here. E. Recusal Next, the plaintiffs urge us to reverse the district judge’s decision not to recuse himself from the proceedings. We de- cline this invitation. During the trial, the district judge repeat- edly admonished plaintiffs’ counsel for the way she litigated the case and expressed serious doubt as to the case’s merits. Before trial began, and after one such admonishment for poor litigation conduct, plaintiffs’ counsel requested that the dis- trict judge recuse himself. He denied the motion for recusal. According to the plaintiffs, the district judge could not have possibly been a fair arbiter given his comments. We disagree. A district judge must recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings … do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” 24 No. 23-2111
Liteky v. United States, 510 U.S. 540, 555 (1994). This means that “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality chal- lenge.” Id. Here, we have little trouble stating that the district judge was not required to recuse himself. There is no doubt that he appeared frustrated with the way the parties conducted the litigation. But expressions of “impatience, dissatisfaction, an- noyance, and even anger” are not necessarily indicative of a district judge’s inability to exercise fair judgment. Id. at 555– 56. And the district judge continued to exercise fair judgment after expressing his dissatisfaction with plaintiffs’ counsel and his serious reservations about the merits of her case. In- deed, he ruled in favor of the plaintiffs at various points, in- cluding by denying the defendants’ motion for judgment as a matter of law and denying the defendants’ request that a pu- nitive-damages instruction not be given. F. Cumulative Error In closing, the plaintiffs ask us to send this matter back for a new trial because all the above errors so affected the pro- ceedings as to render them insufficient. Again, we disagree. Civil litigants are entitled “to a fair trial, not a perfect one.” Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993). Cumula- tive error applies in circumstances when “multiple errors oc- curred at trial, and [] those errors, in the context of the entire trial, were so severe as to have rendered [the] trial fundamen- tally unfair.” United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011). We reject the plaintiffs’ cumulative error argument be- cause—other than the necessary remand on Batson—we di- vine no other errors on the part of the district judge. No. 23-2111 25
III. Conclusion For the reasons stated above, we AFFIRM IN PART and REMAND IN PART for further findings on the Batson chal- lenge to Juror 10. 26 No. 23-2111
KIRSCH, Circuit Judge, concurring in part and dissenting in part. I join the majority’s opinion, except as to its conclusion that we are required to remand for additional factual findings on the plaintiffs’ Batson challenge regarding Juror 10. The ma- jority takes issue with step three of the Batson inquiry, which requires the district court to determine whether the party op- posing the strike has proved that the proffered reason for the strike was pretext for purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 768 (1995). The court can satisfy this re- quirement “in many ways,” although “merely repeat[ing] that the … justification was a ‘nonracial-related reason’” is in- sufficient. United States v. Rutledge, 648 F.3d 555, 558, 560 (7th Cir. 2011). But that’s not what the district judge did here. Ra- ther, the judge stated that Juror 10’s occupation as a counselor was both race-neutral and the reason for the strike (“given that one of the plaintiffs’ witnesses was a counselor, I think also is a contributing factor for both sides whether you want the individual or don’t”), satisfying both the second and third Batson steps. The court’s determination that Juror 10’s occu- pation was the reason for the strike was a factual finding that Juror 10 was not struck based on her race. In other words, the judge did not merely repeat the non-racial reason but credited it for the strike. That finding was not clearly erroneous. The majority is sending this case back for the district judge to tell us what he already has: that the defense struck Juror 10 be- cause of her occupation, not her race. Remand is unnecessary, and so I respectfully dissent from that decision.