McCLOUD v. FORTUNE No. 4:05cv101-RH/WCS.
510 F.Supp.2d 649 (2007)
Arnetta McCLOUD et al., Plaintiffs, v. Kenneth W. FORTUNE, etc., et al., Defendants.
United States District Court, N.D. Florida, Tallahassee Division.
January 25, 2007.
David Andrew Cornell, Elizabeth Marie Collins, David M. Delaney, Dell Graham PA, Gainesville, FL, Timothy M. Warner, Warner Law Firm, Panama City, FL, for Defendants.
ORDER DENYING MOTION FOR NEW TRIAL OR REMITTITUR
HINKLE, Chief Judge.
This § 1983 action arises from the prolonged detention of a family of four following a traffic stop on a remote highway after midnight by law enforcement officers who had evidence that the father made a drug sale earlier in the evening. The father (who was driving) readily consented to a search of the car, and officers conducted a thorough search (including with a dog). They found nothing. Officers held the father and the other family members for nearly three hours after the conclusion of the search of the car, releasing them shortly after 4:00 a.m. Holding the family
The McCloud family consists of father Freddy McCloud, mother Arnetta McCloud, daughter Cynthia McCloud (age 15 at the time of the events at issue), and nephew (and ward) Marcus Frazier (age 16 at that time). This order sometimes refers to the four family members collectively as "the McClouds" and to the three family members other than Mr. McCloud (that is, to the three plaintiffs in the jury trial) as "plaintiffs." The McClouds live in south Florida.
On July 10, 2001 — Mrs. McCloud's birthday — the McClouds traveled in a white Lincoln owned by Mrs. McCloud's father to visit Mrs. McCloud's sister Barbara King and her family at their home near Monticello, a small city in Jefferson County in the Florida panhandle. The day's activities included a family cookout. The McClouds planned to leave late that evening to travel to Tallahassee, 25 miles to the west, to the home of Mrs. McCloud's other sister, who also had attended the cookout at the King residence.
Also on July 10, 2001, a confidential informant told his cousin, an officer with the Monticello police department, that "Freddy" had ounces of cocaine for sale for $900. The officer, David Norton, brought the information to Jefferson County deputy sheriff William D. Hayes. Officers Norton and Hayes used the informant to arrange a controlled buy of half an ounce of cocaine for $450. The reason for buying half an ounce, rather than an ounce, was financial; the officers did not want to spend (and risk losing) $900.
The controlled buy went forward at about 10:00 p.m. After searching the informant, the officers dropped him off with $450 near the location where he said cocaine could be purchased — as it turns out, the King residence. The officers monitored events by audio transmitter and made an audiotape. Nothing in the audio transmission confirmed what occurred or who was involved. The informant did, however, return with half an ounce of cocaine and without the officers' $450. The informant told the officers he bought the cocaine for $450 from Mr. McCloud, exactly as planned.
Mr. Hayes issued a BOLO ("be on the lookout") to Jefferson County deputies, intending to have the Lincoln stopped (and if possible searched) en route to Tallahassee. The goal was to find Mr. McCloud in possession of cocaine and to effect an arrest without disclosing the existence or identity of the confidential informant.
Jefferson County deputy sheriff Gerald Knecht, who was in a marked vehicle, spotted the white Lincoln on a remote highway at about 12:30 a.m. (now early morning on July 11, 2005). The car turned west (toward Tallahassee). Although Mr. Knecht did not know it at the time, Mr. McCloud was driving, and plaintiffs were passengers. The Lincoln was traveling at or below the posted speed limit when. Mr. Knecht first saw it, but Mr. McCloud failed to slow rapidly enough as he entered a reduced speed zone approaching the intersection where he turned. Mr. Knecht clocked the car at 49 miles per hour in a 35 zone.
Mr. Knecht activated his vehicle's videotape recorder and, moments later, his flashing lights. Mr. McCloud promptly pulled over. Mr. Knecht told Mr. McCloud he had been speeding. At 12:33 a.m. Mr. Knecht told Mr. McCloud he would call in the stop and that if everything came back okay, Mr. McCloud would be given a verbal warning and allowed to go. Mr. Knecht told the McClouds to remain in their car.
Mr. Knecht returned to his own car and communicated by telephone or radio with Mr. Hayes (who was in charge) and other officers. By 12:35 Mr. Knecht received a response from dispatch verifying Mr. McCloud's driver's license information. At 12:36 the officers decided that Mr. Knecht
Mr. Stinson and Jefferson County deputy sheriff David Clark, who arrived separately, searched the McCloud car and found nothing. There were no drugs in the car. At 12:48 Mr. Stinson walked his drug dog around the car. The dog went inside both the passenger area and the trunk. According to Mr. Stinson, the dog alerted to the trunk and did not alert anywhere else.
According to Mr. Stinson, the dog also slowed to sniff, thus exhibiting a "change of behavior" — not an alert — near the left rear passenger seat, where Cynthia McCloud had been sitting. Mr. Stinson made no claim that this indicated drugs ever had been in that area, but he did say that such a "change of behavior" gives officers a "place to look."
There were left over hot dogs from the cookout in the trunk. Although Mr. Stinson testified at trial that the drug dog was not affected by the hot dogs, Mr. Stinson can be heard on the videotape saying, "I know she wants those fucking hot dogs."
In any event, after the dog did whatever she did, Mr. Stinson put her back in his vehicle, and the officers thoroughly searched the car again, concentrating on the trunk and the rear passenger area. Again they found nothing. At 1:04 Mr. Stinson got the dog out again and led her around the car again. Officers continued to search.
By 1:09 the search of the car was over, and Mr. Stinson again put the dog away. At 1:10 one of the officers whispered (apparently to ensure he was not heard by the McClouds) that drug dealers sometimes put drugs on females at the time of a traffic stop. An officer said (incorrectly) that the dog had alerted to the back seat on the driver's side, where Cynthia McCloud had been sitting. An officer said, "We can't go up there and grab her damn boobies."
The officers locked Arnetta and Cynthia McCloud in the backseat of Mr. Knecht's patrol car and locked Mr. McCloud and Mr. Frazier in the backseat of Mr. Clark's car. Mr. McCloud said unequivocally that they did not want to be put in patrol cars but that they wanted instead to leave. At 1:14 an officer — apparently Mr. Stinson — responded that it was not a question of "want to"; he said the McClouds were being lawfully detained.
As part of the discussion of what to do, the officers realized that nobody had searched Mr. McCloud himself to determine whether he had the $450. A search of Mr. McCloud's person turned up $226 in
At 1:18 Mr. Stinson told Mr. Knecht to turn off the audio portion of the videotaping equipment. The reason apparently was so that, without being heard by the detainees in Mr. Knecht's vehicle, officers could compare the serial numbers from the seized $450 to those from the controlled buy. The numbers matched.
If anything meaningful happened between 1:18 and 1:47, this record does not reflect it. For all this record shows, the officers simply held the McClouds in the backseats of two patrol cars and did nothing. It is possible that during this time the officers were awaiting the arrival of Jefferson County under-Sheriff Michael Joyner, who would arrive later (by 1:53) and take charge. At some point Mr. Clark told the McClouds that "the Major," a reference to Mr. Joyner, would decide how the rest of their night would go.
At 1:47 someone placed a call to the Leon County Sheriffs Department asking for the assistance of a female deputy. (Pl. ex.3.) The county line between Jefferson and Leon Counties was not far from the scene of the stop, and Leon County — where Tallahassee, the largest city in the area, is located — was the jurisdiction most likely to have an available female officer on duty. At 1:51 the Leon County dispatcher instructed deputy Pat McLeod and his trainee Evelyn Anderson, who were on patrol, to report to the scene. (Id.) The explanation was that Jefferson County deputies needed a female officer to search a female.
At 2:02, for reasons not explained, Mr. Knecht turned off the videotape.
Ms. Anderson then took Cynthia McCloud to the back of Mr. Knecht's car. Ms. Anderson told Cynthia to empty her pockets, and she did, producing money and her driver's license. Ms. Anderson told Cynthia to put her hands on the car and spread her legs. Cynthia complied. Ms. Anderson patted her down, finding nothing. Ms. Anderson neither asked for nor received consent, nor did any other officer. As Ms. Anderson was conducting the search, Cynthia said she was menstruating. Cynthia provided this information so that, if Ms. Anderson felt her menstrual pad, she would know what it was. Ms. Anderson brought Cynthia back and advised the officers that she was clean. Mr. Joyner told Ms. Anderson (incorrectly) that the dog had alerted to the location where Cynthia McCloud had been seated. Mr. Joyner told Ms. Anderson to check her again.
Ms. Anderson again took Cynthia McCloud to the back of Mr. Knecht's vehicle. Anderson instructed Cynthia to take down her pants.
Ms. Anderson returned Cynthia to Mr. Knecht's car and reported that she was clean. Cynthia was visibly distressed. The Leon County deputies left the scene at 2:29. (Pl.ex.3.)
Mr. Joyner decided to take the McClouds back to the King residence and search the home. He commandeered the McCloud vehicle, requiring Mrs. McCloud to ride along as he drove.
Mr. McCloud and Mr. Frazier were transported to the King residence in the backseat of Mr. Clark's patrol car. Cynthia McCloud was taken in the backseat of Mr. Knecht's patrol car. None of the McClouds consented to being placed in the vehicles or to being taken to the King home. The McClouds had, instead, made clear that they wanted to leave.
Upon arriving at the King residence, Mr. Joyner took Mrs. McCloud out of the car and took her with him as he approached the house. Mr. Joyner told Mrs. McCloud he would "tear the mother fucking house down" if she did not get it opened. Mr. Joyner covered his badge. He knocked. Mrs. McCloud's brother-in-law Bernard King answered the door. This record does not establish precisely what happened next, but within a short time officers were in the house and Mr. King was on the floor with an officer's knee in his back. Officers brought the residents into the living room, holding by the arms Chesley King, a 61-year-old stroke victim with limited mobility who was in his underwear with his genitals exposed. Officers brought Cynthia McCloud into the home but left. Mr. McCloud and Mr. Frazier outside in the
Officers say they found marijuana seeds and cocaine and marijuana residue on a night stand but nothing more. There was no evidence of drug dealing — no scales, no baggies, no owe sheets, no drugs packaged for sale or even for personal use.
No consent was given by anyone for the officers to enter or search the home. Later, however, Mr. Knecht obtained Ms. King's signature on a written consent form. Mr. Knecht backdated the form to 2:45 (the approximate time of the original entry). One of the officers induced Ms. King to sign the form by telling her she could either sign at the house or sign at the j ail.
At 4:04 the search was over, and the officers departed, releasing the Kings and McClouds. The officers made no arrests at that time. After the McClouds returned home, they retained an attorney, who made a public records demand on the Jefferson County Sheriffs Department for documents relating to the night's events. Soon thereafter — the McClouds say in retaliation — criminal charges were filed against Mr. McCloud based on the controlled buy. The charges were later dropped. Defendants say the reason was the confidential informant's refusal to cooperate.
Plaintiffs, especially Cynthia, suffered substantial mental health damage from the night's event. All have had counseling and need more.
The plaintiffs in this action as originally filed were the four members of the McCloud family (Mr. and Mrs. McCloud, Cynthia McCloud, and Mr. Frazier) and the three members of the King family who lived at the residence that was searched (Barbara King, Bernard King, and Chesley King). The original defendants were Jefferson County' Sheriff Kenneth W. Fortune in his individual and official capacities and, in their individual capacities, the Jefferson County deputies involved in the searches (Messrs. Joyner, Hayes, Stinson, Knecht, and Clark), Mr. Norton (the Monticello police officer who participated in the controlled buy), and Ms. Anderson (the Leon County deputy who conducted the bodily searches of the McCloud women).
The McClouds sought to recover against the Jefferson County defendants under 42 U.S.C. § 1983 for violation of the Fourth and Fourteenth Amendments (count 1), on state law theories of false imprisonment (count 4) and intentional infliction of emotional distress (count 5), and for conspiracy to violate civil rights (count 12). Mr. McCloud also asserted claims against the sheriff and Mr. Hayes for malicious prosecution (count 2) and false arrest or imprisonment (count 3) based on the filing of criminal charges. Mrs. McCloud asserted against all defendants claims of assault (count 6) and battery (count 7), as did Cynthia McCloud (counts 8 and 9), based on the searches of their persons.
A series of summary judgment rulings pared these claims. See Orders of December 2, 2005, and January 11, 2006 (documents 114 & 128). The rulings included the following. First, the stop of the car was lawful based at least on probable cause to believe it was speeding, if not also probable cause to believe it contained drugs. Second, the McClouds were not unlawfully detained during the consent search of their car. Third, the detention of Mr. McCloud, even after the consent search, was lawful, because officers had probable cause to arrest him for sale of cocaine (that is, as a result of the controlled buy). Fourth, the later filing of criminal charges against Mr. McCloud was lawful because supported by probable cause, regardless of the subjective motivation for the filing of the charges. Fifth, Messrs. Knecht, Stinson, and Clark could not be held liable for any unlawful search of the person of Arnetta or Cynthia McCloud.
These rulings left pending only the following claims: first, the claims of Arnetta and Cynthia McCloud and Marcus Frazier against the sheriff (in his official capacity) and the five Jefferson County deputies (in their individual capacities) for detention after the conclusion of the search of the McCloud vehicle; and second, the claims of Arnetta and Cynthia McCloud (not Mr. Frazier) against the sheriff (in his official capacity), Mr. Joyner, and Mr. Hayes (not Messrs. Knecht, Stinson, or Clark) for unlawful search of their persons and assault and battery. Mr. Fortune had left
The case proceeded to a six-day jury trial. For a trial of this length involving allegations and factual disputes of this nature, it was an unusually clean trial. There were few if any evidentiary rulings of substance adverse to defendants and none of which defendants now complain.
The claims were narrowed further, though not in respects that made any difference of substance, prior to and during the jury's deliberations. First, the assault claim, which was based entirely on the searches of the persons of Arnetta and Cynthia McCloud, was not submitted to the jury at all, first because there was no evidence of an assault (as opposed to a battery), and second because even if what happened could be deemed an assault, the assault theory still would add nothing of substance; the assault theory would, instead, add a needless complication without affecting the ultimate decision on liability or damages.
Second, when during deliberations the jury sent the court a written question regarding battery, the battery claim was expressly withdrawn from the jury's consideration, with the consent of both sides. This again made no difference; the battery theory added a needless complication without affecting the ultimate decision on liability or damages (because, as both sides agreed, any harmful touching of Arnetta or Cynthia McCloud during a search constituted a battery if and only if the search itself was unconsented and unlawful).
The jury returned its special interrogatory verdict for all plaintiffs against all defendants on all remaining issues. The jury explicitly found that each plaintiff was detained without consent longer than reasonably necessary for a reasonable search of the. McCloud car. The jury explicitly found that Arnetta and Cynthia McCloud were subjected to unlawful searches of their persons without consent. The jury explicitly found that all of this was done based on an official custom or policy of the sheriff's department (thus rendering the sheriff liable in his official capacity). The jury explicitly found that all five deputies were responsible for the unlawful detention, and that Messrs. Joyner and Hayes were responsible for the unlawful searches of the person of Arnetta and Cynthia McCloud. The jury found that each individual defendant acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights (thus rendering the individuals liable under state as well as federal law and authorizing an assessment of punitive damages).
The jury assessed punitive damages in favor of Arnetta McCloud of $45,000 against Mr. Hayes, $175,000 against Mr. Joyner, and $10,000 each against Messrs. Stinson, Knecht, and Clark. The jury assessed punitive damages in favor of Cynthia McCloud in the amount of $250,000 against Mr. Hayes, $750,000 against Mr. Joyner, and $100,000 each against Messrs. Stinson, Knecht, and Clark. The jury assessed punitive damages in favor of Mr. Frazier of $45,000 against Mr. Hayes, $75,000 against Mr. Joyner, and $10,000 each against Messrs. Stinson, Knecht, and Clark. The total punitive damages award thus was $1,700,000. The combined total award for compensatory and punitive damages in favor of all three plaintiffs against all defendants was $2,000,000 even.
At my direction, the clerk entered judgment on the verdict. Because the judgment did not explicitly dismiss the claims resolved prior to trial on which judgment had not been entered, I announced my intention to direct entry of an amended judgment explicitly resolving all claims among all parties.
In the meantime defendants filed the instant motion for a new trial or remittitur. They assert the verdict was not supported by sufficient evidence or was contrary to the weight of the evidence, that there was no basis for an award of punitive damages at all and that in any event the punitive damages awards were excessive, that plaintiffs' closing argument was inflammatory (though plaintiffs did not object and asked for no curative instruction at trial), that the court should have polled the jurors to determine whether they saw or
Sufficiency and Weight of the Evidence
Plaintiffs made no claim at trial that the stop and consent search of their car were improper in any way. Nor did plaintiffs claim they were unlawfully detained prior to completion of the search of the car. And had they made such a claim it would not have mattered; I ruled prior to trial and instructed the jury that the stop of the car, the search of the car, and the detention of the McClouds during the search of the car were proper. Plaintiffs' attorney said the same thing in his closing argument.
The issue, then, was simply whether plaintiffs were improperly detained against their will after the search of the car ended, and whether, while so detained, Arnetta and Cynthia McCloud were subjected to improper searches of their persons. These were easy issues, both on the facts and on the' law. The jury (by its verdict) got the facts right, and the court (in its instructions) got the law right. That defendants made no relevant objections to the instructions is perhaps some confirmation that they accurately set forth the law. This order addresses first the facts, then the law.
The evidence that plaintiffs were detained against their will after the search of the car ended was overwhelming. The search of the car ended by 1:09 a.m. When, shortly thereafter, officers decided to put the McClouds into the backseats of patrol cars, Mr. McCloud said they did not want to be put in the patrol cars; they wanted to go. An officer responded clearly and unequivocally, and the response was recorded on the videotape. It was not a question of "want to," the officer said; the McClouds were being "detained." Clearer evidence of a person's detention against his or her will would be difficult to find.
And even without the videotape, the evidence would remain strong. Plaintiffs all testified they did not consent to stay longer. Mrs. McCloud said she not only did not consent to be taken to the King residence but that she begged Mr. Joyner not to take her there and embarrass her in front of her sister.
Plaintiffs' testimony on this rang true. It was 1:09 a.m. on July 11 when the consent search of the car ended. The McClouds had left their south Florida home before dawn on July 10 and had been traveling (and visiting family) for some 20 hours. They had been stopped for going 49 in a 35 zone on a remote highway and had stayed during a consent search of the car (including with a dog) for more than half an hour. The suggestion that they voluntarily agreed to stay in the backseats of separate patrol cars for almost another hour and a half (until a little after 2:30) and then consented to go back to Mrs. McCloud's sister's house for a search that lasted until after 4:00 would be a stretch, even without the videotape evidence and unequivocal testimony to the contrary. And during that time, even on defendants' version, 15-year-old Cynthia McCloud was subjected to the humiliation
Any assertion that there was insufficient evidence that plaintiffs were detained against their will, or that the jury's finding on this was contrary to the weight of the evidence, is plainly unfounded.
Nor is there any reasonable ground for disagreement on the applicable law. It is true, as defendants note, that the individual defendants were entitled to assert the defense of qualified immunity. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs,
When officers have lawful grounds to detain a person, the detention may continue for only as long as reasonably necessary to effectuate the purpose of the detention. This proposition is obvious based on any basic understanding of the Fourth Amendment, and the Eleventh Circuit has so held time and again, with respect to both traffic stops and other types of detention. Thus, for example, in addressing a traffic stop, die Eleventh Circuit said:
United States v. Purcell,
Other Eleventh Circuit decisions have long made clear that these same principles — that a detention must be "reasonably related in scope to the circumstances which justified the interference in the first place" and that the "duration of the [detention] must be limited to the time necessary to effectuate [its] purpose" — apply across the board, not just to traffic stops. Thus, for example, in United States v. Codd,
The legitimate purposes of the officers' stop and detention of the McClouds included issuing a speeding ticket or warning, checking Mr. McCloud's license and the vehicle's registration, and searching the car (based on consent, if not also based on reasonable suspicion or probable cause to believe it contained drugs). By 1:09 a.m. all of that was done. There was no lawful basis to hold plaintiffs any longer. This was so as a matter of clearly established law. No reasonable officer could have thought otherwise. That is, in a nutshell, all the law one needs to know to resolve this case.
This conclusion is fully consistent with cases recognizing that an officer may pat down for weapons any person who is legitimately stopped or detained — even if based only on reasonable suspicion — and who the officer reasonably believes might be armed. See, e.g., Terry v. Ohio,
In the case at bar the officers have acknowledged that they had no basis to believe plaintiffs might be armed, a fact confirmed by their failure to conduct any pat down prior to' 1:09. And even if a pat down for weapons would have been proper prior to 1:09, the officers were not entitled to hold plaintiffs longer, just so they could conduct a pat down. Nothing in Terry authorizes holding individuals after a traffic or investigatory stop ends for the very purpose of conducting a further search. Any suggestion that individuals could be detained for this purpose would stand Terry on its head.
This was, nonetheless, the theory on which some of the officers say they were proceeding on the night at issue. The officers testified they had no probable cause for a full search of the individuals but said they were entitled to conduct a "pat search," presumably a reference to Terry. On this, however, the officers meet
A more extensive search may go forward only if supported on other grounds — for example, based on probable cause or incident to a lawful arrest. No such grounds were present in the case at bar, as defendants seemingly admit. There was probable cause to believe Mr. McCloud committed a crime some hours earlier, and there is an argument (albeit weak) that there was probable cause to believe Mr. McCloud would be transporting drugs to Tallahassee (the informant may have said so, though the basis of his information was unclear, and its reliability, uncertain from the outset, eroded substantially when the car was searched and no drugs were found). But this provided no basis for searching plaintiffs. An individual's presence at the scene of unlawful conduct by others does not alone provide probable cause for a search or seizure of that individual. See, e.g. Ybarra v. Illinois,
To be sure, the officers had not found any drugs in the car or on Mr. McCloud, and their subjective belief was that there were drugs somewhere, perhaps on one of the plaintiffs or back at the King residence. This did not, however, provide a basis for the officers to detain plaintiffs after completion of the search of the car at 1:09. This is so for three reasons, each, of which would be sufficient standing alone to require this result.
First, an officer's subjective belief is not a sufficient basis for detaining or searching an individual.
Second, even if it somehow could be concluded that the officers had grounds to
Third, there is absolutely no theory that would support detention of plaintiffs after 2:29, when the searches of their persons were complete. If, as the jury found based on credible evidence, plaintiffs were held against their will after that time, it was unconstitutional as a matter of clearly established law. The Constitution simply does not allow the arrest of an entire family based on evidence that, at an earlier time, the father committed a crime. See, e.g., United States v. Di Re,
In sum, there was no basis for detaining anyone other than Mr. McCloud after 1:09 a.m. and even less basis for detaining them after 2:30. Holding plaintiffs until after 4:00 was unconstitutional.
The Supreme Court has made clear that in appropriate circumstances, punitive damages may be awarded in an action arising under § 1983:
Smith v. Wade,
The case at bar was a classic case for an award of punitive damages. Officers held plaintiffs against their will for hours with no colorable basis for doing so. The only justification now offered — that plaintiffs consented — is simply not true. And one officer, Mr. Joyner, was abusive and made racist remarks. When, as here, there is a deliberate violation of constitutional rights, a jury properly may, if it chooses, award punitive damages.
The amount of punitive damages awarded by the jury was within acceptable limits. Relevant factors include the degree of reprehensibility of the defendant's misconduct; the ratio between actual and punitive damages; and sanctions for comparable misconduct. See BMW of North America, Inc. v. Gore,
Here defendants' conduct was reprehensible and caused substantial actual damages. The plaintiffs have undergone, and will continue to need, significant mental health counseling. Mr. Joyner's conduct was the most reprehensible; it was he who made racially derogatory remarks, commandeered the McCloud vehicle, and was the final decision maker for the most serious violations. Mr. Hayes made the clearly unconstitutional decision to detain plaintiffs when the search of the car concluded at 1:09. While the conduct of Mr. Stinson, Mr. Knecht, and Mr. Clark was not as reprehensible, they all participated fully in a prolonged course of unconstitutional conduct. The jury found, with abundant support in the evidence, that all acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human' rights.
The ratio of punitive to compensatory damages as assessed by the jury was in every instance reasonable. Indeed, in only two instances did a punitive damages award exceed a plaintiff's compensatory award. The ratio of punitive to compensatory damages in favor of Cynthia McCloud against Mr. Joyner was 4.3 to 1, and the ratio of punitive to compensatory damages in favor of Cynthia McCloud against Mr. Hayes was 1.4 to 1. In each other instance the ratio of punitive to compensatory damages was less than 1 to 1.
One final point should be made concerning the amount of these punitive damages awards. Defendants chose not to join issue at trial on the subject of the appropriate amount of any award of punitive damages. Defendants presented no evidence on this issue and made virtually no argument. After the trial was over and the verdict in, each defendant proffered an affidavit claiming a limited net worth. The time for presentation of that evidence, however, was during the trial. A defendant who wishes to seem confident of outright victory on the issue of liability, or who wishes to appear confident that the jury will award no punitive damages at all, may elect not to present evidence on or argue regarding the appropriate amount of any punitive damages award. That is the strategy defendants chose here. Defendants have not waived their claim that this award was excessive, constitutionally and otherwise, nor have they forfeited their claim for a remittitur. Their after-the-trial proffer of evidence, however, comes too late. So do arguments that were not made to the jury, except to the extent of the court's proper role in reviewing the verdict, considering the request for a remittitur, and ensuring fidelity to constitutional limits.
In sum, the jury's substantial award of punitive damages in favor of each plaintiff against each defendant was supported by the evidence, was reasonable in amount, and comported with constitutional standards.
After defendants presented closing argument that plaintiffs' attorney, at least, interpreted as a suggestion that some defendants were merely doing as instructed by their superior officers and should be exonerated on that basis, plaintiffs' attorney said in rebuttal that an officer is not entitled to follow an order to violate a person's constitutional rights. Plaintiffs' attorney said this had been true from the days of the Nuremberg trials, to Abu
Defendants now say, however, that this argument was so inflammatory that it warrants a new trial, even in the absence of any objection. I disagree.
First, an attorney ordinarily may refer in closing argument to well known events or institutions that are part of any juror's common understanding, so long as the reference is not misleading or inflammatory. When an attorney accurately explains that following unlawful orders is not without more a defense, many jurors would immediately recognize — even without being told — that the same principle was applied at Nuremberg and in the trials of offenses committed at Abu Ghraib. That an attorney explicitly makes the connection, in order to illustrate the point, seems unexceptional.
Second, even if the reference could be deemed improper, it would provide no basis for a new trial. This fleeting reference was an insignificant part of the trial and plainly made no difference. In asserting the contrary, defendants are grasping at straws.
Exposure to Media Coverage
Defendants say a new trial should be granted because the court did not poll the jurors to determine whether they were-exposed to and affected by media coverage of the trial. There is absolutely no basis, however, to believe the jurors saw or were affected by any such coverage. I instructed the jurors before the trial began and repeatedly during the trial not to see or hear or read any media coverage. I explained that the reason was that the jurors were to decide the case based on the evidence presented during the trial, not based on anything they might hear or see or read in the media. There was never so much as a hint that any juror disregarded these instructions.
Defendants made no request during the trial for any inquiry to the jurors on whether they had complied with my instructions.
Defendants' assertion that the jurors should have been polled on the issue of media exposure is unfounded on the merits. See Gordon v. United States,
Plaintiffs introduced the testimony of Dr. Charles Madsen, a forensic psychologist, on the issue of damages. Dr. Madsen testified that plaintiffs suffered psychological and emotional effects from the events of July 11, 2001, including post traumatic stress disorder, anxiety, and depression. He said plaintiffs needed additional mental health counseling. All of this testimony was fully disclosed in the report filed well prior to trial pursuant to Federal Rule of Civil Procedure 26(a)(2). All of this testimony came in without objection.
One contested issue did arise during Dr. Madsen's testimony. He started with Mrs. McCloud. After giving his overall opinion of her condition, Dr. Madsen said Mrs. McCloud's "SIRS" score — the result of a diagnostic tool known as the "Structured Interview for Reported Symptoms" — was 26. He said individuals with mental illnesses typically had SIRS scores of 22 to 52. He said Mrs. McCloud's results indicated she was honest on six of seven verification scales but probably had been fudging on one. Defendants made no objection to this testimony when it was offered.
Dr. Madsen then turned to Cynthia McCloud. After giving his overall opinion of her condition, Dr. Madsen began to describe her SIRS results. Defendants objected. With the jury out of the courtroom, defendants asserted that Dr. Madsen's Rule 26(a)(2) report did not include any reference to SIRS results. Plaintiffs acknowledged this was so. I sustained defendants' objection to and motion to strike any testimony about SIRS and told the jurors, upon their return to the courtroom, that they should disregard all SIRS testimony because plaintiffs had failed to disclose the SIRS evaluation as required by the governing court rules.
I did not, however, declare a mistrial. In the overall context of this trial, the brief references to SIRS were insignificant, especially in light of the curative instruction. The assertion that this testimony harmed defendants or affected the verdict is fanciful. Declaring a mistrial on this basis would have been an exceptionally poor exercise of discretion.
As an aside, it bears noting that, so far as this record reflects, the omission of the SIRS results from the Rule 26(a)(2) report produced a double windfall, for defendants. First, evidence that was probative (at least so far as this record reflects) and plainly admissible (so long as properly disclosed in advance) was excluded. Second, the jury was told by the judge that plaintiffs had violated the rules. If this incident had any net effect, it almost surely was in favor of defendants; the benefit defendants reaped from the instruction probably exceeded, and at least was sufficient to offset, any slight harm that might have resulted from the brief references to SIRS.
The references to SIRS do not warrant a new trial.
This was a full and fair trial. The weight of the evidence supported the jury's verdict. The jury's assessment of damages was reasonable. Accordingly,
1. Defendants' motion for a new trial or remittitur (document 184) is DENIED.
2. The clerk shall enter an amended judgment stating:
3. The clerk shall close the file.
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